                                                                                       FILED
                                                                              COURT OF APPEALS
                                                                                 DIVISION II
                                                                            2015 FEB 24
                                                                                        NI 9: 28
                                                                            STATE OF
                                                                                           WASHINGTON
                                                                            By
                                                                                           CITY.




     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


                                          DIVISION II


 STATE OF WASHINGTON,                                                  No. 45101 -8 - II


                                 Respondent,                    UNPUBLISHED OPINION


         v.




 SOPHIA F. THOMAS,


                                 Appellant.


         BJORGEN, A.C. J. —   A jury found Sophia Thomas guilty of three counts of possession of

a controlled substance, one count of possession of a controlled substance with intent to deliver,


and one count of money laundering. The jury also found that Thomas or her accomplice was

armed with a firearm during two of these offenses. Thomas now appeals, claiming that

insufficient evidence supports ( 1) the jury' s guilty verdict for possession with intent to deliver,

 2) the jury' s guilty verdict for money laundering, and ( 3) the jury' s findings that Thomas or her

accomplice was armed with a firearm. In a pro se statement of additional grounds, Thomas also

contends that she received ineffective assistance of counsel and that juror misconduct tainted her

trial.
No. 45101 -8 -II



         Permissible inferences drawn from evidence presented by the State allowed a rational

jury to find that the State had proven beyond a reasonable doubt that ( 1) Thomas was an

accomplice   to the possession   with   intent to deliver   offense, (   2) Thomas committed money

laundering, and ( 3) Thomas or her accomplice was armed with a firearm while committing two

offenses. To the extent that Thomas bases her SAG arguments on the trial record, they do not

show any error. To the extent that Thomas' s SAG relies on matters outside the record, we

decline to address them in her direct appeal. We affirm Thomas' s convictions and the firearm

enhancements.



                                                   FACTS


         Sometime in late 2011 or early 2012, the Pierce County Sheriff' s Department began

investigating Kenneth Criswell for trafficking narcotics. The investigators turned their interest to

Thomas when officers noticed Criswell arriving at several controlled drug sales while driving her

cars.   Investigators also discovered that in December 2011 and January 2012, just after she began

dating Criswell, Thomas made several large cash deposits and immediate withdrawals at her

credit union.




         Through surveillance of Criswell, police determined that he spent a " majority of time" at

Thomas' s house, although he maintained a separate apartment. II Verbatim Report of


Proceedings ( VRP) at 129 -31, 133. Accordingly, police served a search warrant on Thomas' s

house early one morning in February 2012. Officers found Thomas and Criswell asleep in the

upstairs bedroom and took both into custody.

         In the bedroom where they arrested Thomas and Criswell, police found a loaded pistol,

hydrocodone pills, and $ 3, 500 in cash. The pistol was hanging from the bed' s headboard, and

the hydrocodone was in Thomas' s purse. The purse also contained the cash, stuffed inside an



                                                       2
No. 45101 -8 -II



envelope. Writing on the envelope appeared to detail Criswell' s sale of controlled substances,

recording the names of buyers, the quantity of drugs sold to each, and the cash value of the

transactions.


       A search of the house yielded two additional firearms, other drugs, and items linked to


trafficking in drugs. Police found one of the guns, a loaded assault rifle, behind window drapes

in Thomas' s living room. The rifle was placed so that it was " grabable" without moving any

furniture. III VRP at 179. Police found another loaded handgun on the passenger seat of one of


Thomas' s cars, which was parked in her garage. The search also turned up 29 grams of cocaine

in a bag on Thomas' s kitchen counter, along with a digital scale, and oxycodone and

oxymorphone pills in Thomas' s kitchen. Finally, in one of the house' s closets, an officer found

an electronic currency counter.


        The State charged Thomas with four counts of possession of a controlled substance with


intent to deliver in      violation of   RCW 69. 50. 401( 1)( 2)(   a), ( c),   and one count of money laundering

in violation of RCW 9A.83. 010( 7) and RCW 9A.83. 020( 1). 1 The State alleged that Thomas or




1
 RCW 69. 50. 401( 1) provides that "[ e] xcept as authorized by this chapter, it is unlawful for any
person to manufacture, deliver, or possess with intent to manufacture or deliver, a controlled
substance." RCW 69. 50. 401( 2) prescribes that a violation of RCW 69. 50. 401( 1) is either a class
B or class C felony depending on the controlled substance involved.

RCW 9A. 83. 020( 1) provides, in relevant part, that
         a] person is guilty of money laundering when that person conducts or attempts to
        conduct a financial transaction involving the proceeds of specified unlawful activity
        and:

         a) [   k] nows the property is proceeds of specified unlawful activity; or
         b) [ k] nows that the transaction is designed in whole or in part to conceal or disguise
        the     nature,    location,   source,   ownership,    or   control      of   the   proceeds,   and   acts


        recklessly as to whether the property is proceeds of specified unlawful activity.
                                                           3
No. 45101 -8 -II



an accomplice was armed with a firearm during the commission of each of the possession with

intent to deliver offenses. 2

        At trial, the State presented evidence connecting Thomas to drug possession and

trafficking. Police officers testified about their search of Thomas' s house and their seizure of

controlled substances and other paraphernalia, including the cocaine, oxymorphone, and

oxycodone found in her kitchen; the hydrocodone and the envelope of cash with drug

transactions written on it found in her purse in her bedroom; and the digital scale and currency

counter. Officers testified that the digital scale, currency counter, and the notations on the

envelope in Thomas' s purse were hallmarks of the drug trade. Officers also testified that the

volume of drugs found in Thomas' s home were not the small quantities associated with personal


use.




         The manager of security risk who oversaw the fraud and investigations group at

Thomas' s credit union testified about three suspicious transactions Thomas had made in

December 2011 and January 2012, just after she began dating Criswell. In the first, Thomas

deposited $9, 055 in small denomination bills and immediately withdrew the same amount in

large denomination bills. In the second, Thomas again deposited $ 9, 000 in small bills and then

immediately withdrew the same amount in large denomination bills. In the third, Thomas

deposited $ 1,    250 in small bills and immediately withdrew the same amount in large bills.

Thomas had never made transactions like these before the first December 2011 deposit. A Pierce




2 RCW 9. 94A.533 provides that certain additional time " shall be added to the standard sentence
range   fo r   felony   crimes ...   if the   offender or an accomplice was armed with a   firearm ...   and


the offender is being sentenced for one of the crimes listed in this subsection as eligible for any
firearm   enhancements."         Possession of a controlled substance with intent to deliver and
possession of a controlled substance are crimes eligible for an enhanced sentence under RCW
 9. 94A. 533. RCW 9. 94A.533( f); RCW 69. 50. 401( 2).



                                                           4
No. 45101 -8 -II



County sheriff testified that drug sales typically involved smaller denomination bills, usually

   10s]   and $ 20s,"    II VRP at 124 -25, the types of bills Thomas deposited. 3 Another Pierce

County sheriff' s detective testified that Thomas reacted oddly when asked, after her arrest, if the

deposits involved cash from Criswell.


          Finally, testimony at trial connected Thomas and Criswell to several firearms. Officers

described finding the loaded pistols in Thomas' s master bedroom and car and the assault rifle

behind the curtains in her living room while searching her house.

          Thomas testified in her defense. She .denied knowing that Criswell dealt drugs, kept

drugs in her house, or kept firearms there. Thomas explained that Criswell could have used her

cars without her knowledge because he had access to her house and her spare keys. Thomas also

testified that Criswell had put the hydrocodone and cash in her purse the night before their arrest

without her knowledge.


          Thomas explained that each of the large cash deposits involved in the money laundering

charges were unconnected to Criswell or drug trafficking. She stated that the first consisted of

funds sent to her by family members to care for a sick uncle and to pay for funeral expenses.

She explained the exchange of small for large bills as necessary to get the type of cash her

culture required her family to give to people attending her uncle' s funeral. Thomas claimed that

the second deposit consisted of a collection of the cash tips she earned at her second job, which

she exchanged      for large bills for    a   trip   to Las Vegas.   She testified that the third cash deposit was


rental income from her second home.




3 The security risk manager testified that, in the first transaction, Thomas exchanged over 400
  20 bills,   a " couple of   tens   and a couple    fives" for "[ p] rimarily hundred dollar bills." III VRP at
240. The      second    transaction   also    involved the deposit of "over 400 $ 20 bills." III VRP at 241.

                                                              5
No. 45101 -8 -II



       Criswell also testified for Thomas. He agreed that Thomas did not know he dealt drugs

or that he kept drugs at her house. Criswell admitted that he had sold drugs at a bar the night

before his and Thomas' s arrest, and that he had put the proceeds of those sales, as well as the

hydrocodone pills, in Thomas' s purse without her knowledge because he could not hide the


drugs on his person. Criswell also testified that he owned the guns police found in Thomas' s

house, that Thomas did not know about them because he hid them, and that he kept the guns


because of post- traumatic stress related to his military service, not because he used them in the

course of his drug operations.

       Other defense witnesses testified that Thomas earned large volumes of small bills as tips


at her second job. Thomas' s sister verified Thomas' s claims that their culture required giving

cash gifts to those attending their uncle' s funeral and that Thomas was the caretaker of the funds

given by family members for the uncle' s care and funeral.

        After the parties presented their evidence, the trial court instructed the jury on the State' s

burden of proof, the elements of the offenses, and the firearm enhancements. The trial court also


instructed the jury on accomplice liability, on its ability to convict Thomas as a principal or an

accomplice, and on the affirmative defense of unwitting possession.

        The jury found Thomas guilty of three counts of possession of a controlled substance for

possessing the cocaine, oxymorphone, and oxycodone; possession of a controlled substance with

intent to deliver for the possession of the hydrocodone; and money laundering. The jury returned

special verdicts finding that Thomas or an accomplice was armed with a firearm while

possessing the cocaine and possessing the hydrocodone with intent to deliver.

        Thomas now appeals.




                                                   6
No. 45101 -8 -II



                                                         ANALYSIS


                                               L STANDARD OF REVIEW


         The due      process clauses of      the   state and   federal    constitutions " require[] [     that] a criminal



defendant be convicted only when every element of the charged crime is proved beyond a

reasonable        doubt." State    v.   O' Hara, 167 Wn.2d 91, 105, 217 P. 3d 756 ( 2009). We review


whether sufficient evidence supports the convictions by examining whether, when viewed in the

light most favorable to the prosecution, the State' s evidence permits a rational trier of fact to find

the essential elements of the charged crime beyond a reasonable doubt. State v. Kintz, 169


Wn.2d 537, 551, 238 P. 3d 470 ( 2010).


             We apply similar principles to a jury' s finding that a defendant was armed with a firearm

during the commission of a crime. We review whether, when viewed in the light most favorable

to the State, the evidence allowed a rational trier of fact to find that the defendant was armed


with a firearm during the commission of an offense. State v. Eckenrode, 159 Wn.2d 488, 494,

150 P. 3d 1116 ( 2007).


             By   challenging the sufficiency       of   the State'   s evidence,    Thomas "'   admits     the truth '   of




that   evidence '     and all    inferences that reasonably         can   be drawn therefrom.'          Kintz, 169 Wn.2d


at   551 ( quoting State    v.   Salinas, 119 Wn.2d 192, 201, 829 P. 2d 1068 ( 1992)).                    We do not


distinguish between direct          and circumstantial evidence:            both '    are   equally   reliable '   in


providing evidence sufficient to sustain a jury' s guilty verdict. Kintz, 169 Wn.2d at 551 ( quoting

State   v.   Thomas, 150 Wn. 2d 821, 874, 83 P. 3d 970 ( 2004)).                 On review, we defer to the jury' s

credibility determinations and resolution of conflicting testimony. State v. McCreven, 170 Wn.

App.    444, 477, 284 P. 3d 793 ( 2012), review denied, 176 Wn.2d 1015 ( 2013).




                                                                7
No. 45101 -8 -II



              II. SUFFICIENCY OF THE EVIDENCE UNDERLYING THE CRIMINAL CONVICTIONS


          On appeal, Thomas challenges the sufficiency of the evidence underlying her convictions

for possession of a controlled substance with intent to deliver and money laundering. Thomas

also challenges the sufficiency of the evidence underlying the findings that she or an accomplice

was armed with a firearm while committing two of the offenses. The State contends that

sufficient evidence supports the jury' s finding in each respect. We agree with the State.

A.        Possession with Intent


          Thomas first argues that insufficient evidence supports the conviction for possession with


intent to deliver, claiming that the State failed to show she acted as an accomplice to Criswell' s

hydrocodone          sales.    Thomas           maintains   that the State'     s evidence, " at most,"        showed Thomas


 kn[ ew]"     of   Criswell'    s   illegal      activities and " assent[ ed]"         to them, which is insufficient for


accomplice liability. Br. of Appellant at 14. The State contends that the jury could rationally

have found that Thomas agreed to participate in Criswell' s criminal activities and was therefore

his accomplice.


          Under Washington'                 s   complicity    statute, "[    a] person is guilty of a crime if it is committed

by the   conduct of another person                  for   which   he   or she   is   legally   accountable."    RCW 9A.08. 020( 1).


A    person   is "   legally   accountable          for the   conduct of another person,"            among other circumstances,


if "[h] e   or she     is    an accomplice of such other person                      in the    commission of     the   crime."   RCW


9A.08. 020( 2)(       c).     One of the ways a person may become an accomplice to another person' s

commission of a crime                  is   by "[ a] id[ ing] or agree[ ing] to aid such other person in .planning or

committing" the             crime "[   w]ith knowledge that it will promote or facilitate the commission of the


crime."     RCW 9A.08. 020( 3)( a)( ii).




                                                                         8
No. 45101 -8 -II



        A person' s mere presence at the scene of a crime and assent to its commission does not

make   the   person an accomplice             to the   crime.   In re Welfare of Wilson, 91 Wn.2d 487, 491, 588

P. 2d 1161 ( 1979) ( quoting State            v.    - Distribs., Inc., 82 Wn.2d 584, 593, 512 P. 2d 1049 ( 1973)).
                                                   JR


Instead, to become          an    accomplice,        a person      must "` associate[]   himself [ or herself] with the


undertaking [      and] participate[]        in it as in something he [ or she] desires to bring about, and seeks

by his [ or her]   action   to   make   it   succeed.'"    Wilson, 91 Wn.2d at 491 ( quoting State v. J R
                                                                                                        - Distribs.,

Inc., 82 Wn.2d 584, 593, 512 P. 2d 1049 ( 1973)).


         The jury could rationally have found that these requirements of complicity were met,

because the evidence allowed it (1) to infer that Thomas knew any aid would facilitate Criswell' s

possession of a controlled substance with intent to deliver and ( 2) to find that Thomas gave


Criswell aid. First, the jury could rationally find beyond a reasonable doubt that Thomas knew

her activities would promote or facilitate Criswell' s possession of the hydrocodone with intent to

deliver. Criswell testified that he put the drugs in Thomas' s purse because he had so many of

them that he could not hide them on his person. The jury saw evidence of the volume of pills

involved. From this evidence the jury could reasonably infer that Thomas must have known why

Criswell had put the drugs in her purse and that by carrying them for him she would promote or

facilitate his possession of the hydrocodone with intent to deliver.


         This jury could also find beyond a reasonable doubt that Thomas aided Criswell in his

hydrocodone sales. Thomas carried Criswell' s hydrocodone away from the bar where he sold

drugs the evening before their arrest. As noted, above, Criswell placed the drugs in Thomas' s

purse because he could not successfully hide them on himself and he did not want to " get caught

with [ them]."      IV VRP at 362. At the time of her arrest, Thomas was still in constructive


possession of      the   drugs,   which were still        in her   purse,   inside her house, inside her bedroom,   near
No. 45101 -841


                                                         4
where she    lay   sleeping   when police   found her.       Carrying and hiding Criswell' s drugs falls

within the meaning of "aid" in the accomplice liability statute. RCW 9A.08. 020.

          Thomas analogizes her conviction to one reversed by Division One of our court in State

v.   Amezola, 49 Wn.     App.   78, 741 P. 2d 1024 ( 1987),       overruled on other grounds by State v.

MacDonald, 138 Wn.2d 680, 689, 981 P. 2d 443 ( 1999), and asks that we reverse her conviction


as well. The appellant in Amezola, Ramirez, had lived with her alleged accomplices; the State

presented evidence that she cooked and cleaned their shared residence. The State argued that


Ramirez' s cooking and cleaning enabled her housemates to engage in the delivery of heroin,

making her an accomplice in their criminal enterprise. 49 Wn. App. at 89. Division One

rejected the argument, holding that Ramirez' s housework was legally insufficient to show that

she had associated herself with her housemate' s illegal activities, thereby making her their

accomplice. Amezola, 49 Wn..App. at 89 -90.

          Any analogy to Amezola fails. Unlike Ramirez, Thomas actively engaged in activity

related to Criswell' s drug sales, not just routine domestic tasks unconnected to illegal activities.

By doing so, Thomas associated with and aided Criswell' s criminal enterprise and became his

accomplice.        Wilson, 91 Wn.2d at 491 ( quoting J R
                                                       - Distribs., Inc., 82 Wn.2d at 593).

B.        Money Laundering
          Thomas also contends that the State failed to present sufficient evidence that she engaged


in money    laundering by depositing        the   proceeds of     Criswell'   s   illicit   drug   sales.   She contends


that she " was receiving significant amounts of cash from legitimate sources" and that the State




4 Actual possession involves " physical custody of" an object; constructive possession involves
     dominion   and control over   the object."    State v. Jones, 146 Wn.2d 328, 333, 45 P. 3d 1062
 2002).    Dominion and control means that the defendant may reduce the object " to actual
possession   immediately." Jones, 146 Wn.2d at 333.
                                                             10
No. 45101 -8 -II



failed to prove she knowingly deposited the proceeds of Criswell' s drug sales. Br. of Appellant

at 21.


         The crime of money laundering is defined in RCW 9A.83. 020, which provides, in

relevant part, that


          1) A person is guilty of money laundering when that person conducts or attempts
         to conduct a financial transaction involving the proceeds of specified unlawful
         activity and:
          a) Knows the property is proceeds of specified unlawful activity; or
          b) Knows that the transaction is designed in whole or in part to conceal or
         disguise the nature, location, source, ownership, or control of the proceeds, and
         acts recklessly as to whether the property is proceeds of specified unlawful
         activity.


The   possession of a controlled substance with         intent to deliver is "[ s] pecified unlawful activity"


within   the meaning     of   RCW 9A. 83. 020. RCW 9A.83. 010( 7);       RCW 9A.82. 010( 4)( q).

         Here, the State presented evidence that Thomas had not engaged in suspicious


transactions before she began dating Criswell. Shortly after the two met, however, she engaged
in three such transactions. In each of these transactions, Thomas deposited large numbers of


small denomination bills, the type that police testified were generated by drug sales, and then

immediately withdrew an amount of money equivalent to the deposit in large denomination bills.

The jury also heard that, at the time of her arrest, Thomas' s purse contained an envelope filled

with the proceeds of Criswell' s drug sales. When viewing this evidence in the light most

favorable to the State, a rational trier of fact could find beyond a reasonable doubt that Thomas


engaged in a continuing money laundering scheme that ended only with her arrest while in

constructive possession of Criswell' s drug money.

         Thomas contends also that her exculpatory explanations for the transactions create

reasonable   doubt. We, however,         are not the   jury. " An essential function of the fact finder is to

discount theories     which     it determines   unreasonable,"   State v. Bencivenga, 137 Wn.2d 703, 709,

                                                          11
No. 45101 -8 -II


974 P. 2d 832 ( 1999),         and the jury did so here. By Thomas' s own explanations, the second and

third deposits were the type of recurring event that should have occurred before she met

Criswell. The jury could readily infer from the lack of previous, similar deposits that Thomas' s

explanations were not truthful, and we defer to that determination. McCreven, 170 Wn. App. at

477.


          III. SUFFICIENCY OF THE EVIDENCE UNDERLYING THE FIREARM SPECIAL VERDICTS


          Thomas next argues that insufficient evidence supports the jury' s finding that she or an

accomplice was armed with a firearm while possessing the cocaine or hydrocodone.

Specifically, Thomas contends that the State' s evidence did not establish a nexus between herself

or Criswell, the firearms, and the drugs. We hold that the evidence was sufficient to sustain the


firearm finding.

          Washington has proscribed the constitutionally unprotected use of firearms to commit

crimes.    State   v.   Schelin, 147 Wn.2d 562, 575, 55 P. 3d 632 ( 2002) ( lead opinion of Ireland, J.)


 no constitutional protection          for   criminal use of a     firearm); RCW 9. 94A.533( 3) (      enhanced



sentence   for   offenders armed with a             firearm   during   the   commission of a crime).   Accordingly,

the State may seek a finding that " the offender or an accomplice was armed with a firearm"

during the   commission of an offense.                RCW 9. 94A. 533( 3); RCW 9. 94A. 825.         If a jury makes the

finding, the trial court must add statutorily prescribed time to the offender' s sentence. RCW

9. 94A.533( 3).


          A person is armed during the commission of a crime " if a weapon is easily accessible and

readily   available      for   use, either   for   offensive or   defensive    purposes."   State v. Valdobinos, 122


Wn.2d 270, 282, 858 P. 2d 199 ( 1993).                 These purposes include using the weapon " to facilitate

the commission of the crime, escape from the scene of the crime, protect contraband or the like,



                                                                  12
No. 45101 -8 -II



or prevent   investigation,        discovery,    or apprehension   by   the   police."   State v. Gurske, 155 Wn.2d


134, 139, 118 P. 3d 333 ( 2005).             In constructive possession cases such as this, the State must


show both a nexus between the defendant and the firearm and between the firearm and the crime.

Gurske, 155 Wn.2d at 140 -42. To determine whether these connections exist, the factfinder must


look to ' the nature of the crime, the type of weapon, and the circumstances under which the


weapon was         found. "'     Gurske, 155 Wn.2d at 142 ( quoting Schelin, 147 Wn.2d at 570).

          The State' s evidence allowed a rational jury to find beyond a reasonable doubt a nexus

between the defendant and a firearm. Police discovered a loaded pistol on the headboard of the


bed where they had just arrested Thomas and Criswell after finding them asleep. Thomas' s and

Criswell' s constructive possession of the pistol establishes a nexus between each of them and the


firearm. Schelin, 147 Wn.2d 574 -75 ( proximity to firearm at time of arrest for ongoing drug

operation satisfies nexus          test);   State v. Taylor, 74 Wn. App. 111, 124 -26, 872 P. 2d 53 ( 1994)

 affirming firearm enhancement because defendant was in constructive possession of firearm

during    arrest   for   drug   offenses);   State v. Sabala, 44 Wn. App. 444, 447 -49, 723 P. 2d 5 ( 1986)

 same);    cf.State      v.   Mills, 80 Wn.   App.   231, 907 P. 2d 316 ( 1995) ( no nexus where the defendant


is not in physical proximity to the firearm).5

          The State' s evidence also allowed a rational jury to find beyond a reasonable doubt that a

nexus existed between the firearm recovered in the bedroom and the possession of the


hydrocodone and cocaine for several reasons.




5 Taylor and Sabala were decided before the Supreme Court adopted the nexus requirement, but
the Supreme Court has stated that Sabala is " instructive because there was clearly a nexus
between the defendant and the weapon." Gurske, 155 Wn.2d at 142. This same reasoning would
apply to Taylor as well. See Taylor, 74 Wn. App. at 125 ( " the gun was sitting on a table next to
the couch where Taylor was sitting and was easily accessible to him. ").


                                                             13
No. 45101 -8 -II



       First, with regard to only the hydrocodone, the State' s evidence shows that Thomas and

Criswell kept the pistol in the same room as the drug. The hydrocodone and the firearm were

thus in close proximity to each other, and this proximity establishes a nexus between the two.

Schelin, 147 Wn.2d at 564, 574 -75; 6 see Mills, 80 Wn. App. at 236. The jury could rationally

have inferred that Criswell kept the gun in the same room as the hydrocodone in order to protect


the contraband or to thwart law enforcement officers coming to search the room.

        Second, the extensive evidence of the drug operation recovered in Thomas' s house

allowed the jury to infer Thomas or Criswell was armed in the commission of possession of the

cocaine and    hydrocodone. Where         evidence of    the   drug trade " pervade[ s] [   a]   house,"   the jury

may rationally infer that firearms       recovered    in the house "[ are] there to protect the criminal


enterprise."   Eckenrode, 159 Wn.2d         at   494, 497 -99 ( Alexander, C. J. concurring) ( Madsen, J.


concurring);   see   State   v.   Simonson, 91 Wn.    App.   874, 883, 960 P. 2d 955 ( 1998). As noted,


police found various types of drugs in various places in Thomas' s kitchen and bedroom and


other items of paraphernalia associated with drug dealing in the house. The evidence of a large

drug operation in Thomas' s house allowed the jury to infer that Thomas or Criswell kept

firearms there to protect the operation.


        Third, the locations of the weapons in the house allowed the jury to infer that each was

used in the drug operation. The firearms were in strategic positions for use in a drug operation.

The pistol in the bedroom was available to protect both Thomas and Criswell and the drugs, to


thwart investigators, and to aid in flight from.arrest. The assault rifle in the living room, a




6 Although the lead opinion of Schelin did not command a majority, the Gurske court used
Schelin as an example where there was a nexus between the defendant, crime, and firearm
because police arrested the defendant in close proximity to the firearm and the drug operation.
 155 Wn.2d at 140.



                                                          14
No. 45101 -8 -II



readily " grabable" large capacity weapon, III VRP at 179, was available to thwart attempts by

law enforcement or any intruder to force entry through the house' s main door; and the pistol in

the car was available to aid in flight from the house. See Gurske, 155 Wn.2d at 139 ( listing

possible uses     for   a   firearm in   a   drug   operation).   The jury could infer from the strategic

positioning of each of these firearms that all were used for specific purposes related to the drug

operations, and that a nexus therefore existed between each of them and Thomas and Criswell' s


possessory crimes.

                        IV. STATEMENT OF ADDITIONAL GROUNDS ( SAG) ARGUMENTS


          In her SAG, Thomas contends that her trial counsel provided ineffective assistance by

failing to communicate the State' s plea offers, failing to advise her of her right to a bench trial,

and failing to prepare for trial. Thomas also asserts that a biased juror tainted her trial.

Thomas' s claims about communication of the State' s offer and the biased juror concern matters

discussed in the record, and we address and reject them below. Thomas' s other claims require

consideration of evidence not in the trial record and we do not address them on direct appeal;

Thomas must instead seek relief with a personal restraint petition. State v. McFarland, 127

Wn.2d 322, 335, 899 P. 2d 1251 ( 1995).


A.        Ineffective Assistance


          Both the state and federal constitutions guarantee criminal defendants the right to


effective representation by their counsel. State v. Grier, 171 Wn.2d 17, 32, 246 P. 3d 1260

 2011).    We review ineffective assistance claims de novo using the federal test announced in

Strickland   v.   Washington, 466 U. S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984). State v.


Cienfuegos, 144 Wn.2d 222, 226, 25 P. 3d 1011 ( 2011).                    To obtain relief under Strickland, the


defendant must show that counsel performed deficiently and that this deficient performance



                                                                  15
No. 45101 -8 -II



prejudiced her or him. Strickland, 466 U.S. at 687. We may reject an ineffective assistance

claim where the defendant fails to make the necessary showing on either prong. State v. Kyllo,

166 Wn.2d 856, 862, 215 P. 3d 177 ( 2009).


             With regard to her claim that her counsel failed to apprise her of the State' s acceptance of


her plea offer, we find no deficient performance because the record is contrary to Thomas' s

claim. The sentencing colloquy shows that she rejected the best plea offer that the State would

make. The State did not accept her counter offer and there was nothing for her counsel to

communicate to her, meaning her counsel did not perform deficiently.

B.           Right to An Impartial Jury

             The state and federal constitutions also protect the right to trial by an impartial jury.

State   v.   Davis, 141 Wn.2d 798, 824, 10 P. 3d 977 ( 2000).                  Based on this right, a party may

challenge the seating of a potential juror for cause where he or she has shown actual bias. RCW

4. 44. 130, . 170( 2), . 190.


             Thomas' s claims of juror bias fail on the record before us. At sentencing, her attorney

did state that one of the jurors appeared to have known Thomas. But Thomas' s attorney


specifically      stated   that the   juror   appeared   to   harbor   no   bias   against   Thomas. Thomas therefore


cannot show a violation of her right to an impartial jury. RCW 4.44. 190 ( right to challenge a

juror for cause requires actual bias).




 7 If Thomas does have evidence that the juror harbored bias, it exists outside the trial record and,
 again, she must seek relief through a personal restraint petition. McFarland, 127 Wn.2d at 335.

                                                                 16
No. 45101 -8 -II



                                         CONCLUSION



        We hold that sufficient evidence supported the jury' s finding that Thomas was guilty of

possession of a controlled substance with intent to deliver and money laundering and that

Thomas or an accomplice was armed with a firearm while possessing the cocaine and

hydrocodone with intent to deliver it. We affirm.


        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW


2. 06. 040, it is so ordered.




 We concur:




                                                 17
