                                                                               FILE D
                                                                          CURT OF APPEA
                                                                             DIVISION 1

                                                                         20 i 1i JUL - i     AM 8: L 9

                                                                          STATE OF WASHINGTON

                                                                          BY—
                                                                                       Pis T Y




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                           DIVISION II


STATE OF WASHINGTON,                                                  No. 44117 -9 -II


                                 Respondent,                    UNPUBLISHED OPINION


         v.



SHELLY FAIRMAN,


                                 Appellant.


         BJORGEN, J. —    A jury returned verdicts finding Shelly Fairman guilty of unlawful

possession of a controlled substance with     intent to deliver ( methamphetamine),        unlawful




possession of a controlled substance ( methamphetamine),       and possession of 40 grams or less of


marijuana.'    Fairman appeals her convictions, asserting that ( 1) the trial court' s unwitting

possession jury instruction misstated the burden of proof, (2) the prosecutor committed

misconduct during its closing arguments, and ( 3) her defense counsel was ineffective for failing

to object to the trial court' s unwitting possession jury instruction and for failing to object to the

prosecutor' s improper closing argument. We affirm.




1
    At sentencing, the trial court vacated Fairman' s conviction of unlawful possession of a
controlled substance ( methamphetamine).
No. 44117 -9 -II


                                                     FACTS


        On May 20, 2012, police arrested Shelly Fairman and Fairman' s niece, Sarai Jones, for

shoplifting from. a Longview Goodwill store. After police transported Fairman and Jones to the

Cowlitz County Jail, Corrections Officer Dave Crayne performed an inventory search of their

belongings. In Fairman' s purse, Crayne found methamphetamine, marijuana, digital scales, glass


pipes, and $   1, 000 in cash.


        The State charged Fairman with third degree theft, possession of under 40 grams of

marijuana, possession of a controlled substance with          intent to deliver ( methamphetamine),           and


                                                                     2
possession of a controlled substance ( methamphetamine).                 At trial, Jones testified that the


methamphetamine, marijuana, digital scales, and glass pipes belonged to her and that, before


entering the Goodwill store, she had placed those items in Fairman' s purse without Fairman' s

knowledge.


        Over the State' s objection, the trial court instructed the jury on the affirmative defense of

unwitting possession. At the start of its closing argument, the prosecutor stated:

                   So   we   don' t really have to   prove much of       anything.    We know that the
        Defendant        possessed    methamphetamine        and    we know that the           Defendant
        possessed marijuana, and that [ the] possession was done here in Cowlitz County,
        State of Washington, and it was done on May 20th, 2012. Pretty simple

Report of Proceedings ( RP) at 229. The prosecutor also argued at closing that the jury should

not find Jones' s testimony credible, stating:

        She knew        what was   in there,   yet she couldn' t   describe it. Two months later she
        says, well, it was just a black cross.
               Yeah, there was a black cross, and I' ll guarantee you after three months
        there' s certainly a conversation between the two of them that could say, hey, take


2 Fairman pleaded guilty to third degree theft before trial.
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No. 44117 -9 -II



           a   look   at   this     The methamphetamine bag said black cross, it looks like
                                  evidence.

           a black cross on there. That was it, it' s all that she described. And then today she
           came in here and she said, well, there' s number ones on there and there' s black
           crosses.

                      And this story has just grown.

RP   at   233.   Additionally, during closing argument the prosecutor referred to Jones as Fairman' s

 so- called niece."          RP at 231.


           The jury returned verdicts finding Fairman guilty of unlawful possession of a controlled

substance with         intent to deliver ( methamphetamine),              unlawful possession of a controlled




substance (      methamphetamine), and possession of 40 grams or less of marijuana. The trial court

vacated Fairman' s unlawful possession of a controlled substance ( methamphetamine) conviction


at sentencing. Fairman timely appeals her convictions.

                                                            ANALYSIS


                                        I. UNWITTING POSSESSION JURY INSTRUCTION


           Fairman first contends that the trial court' s unwitting possession jury instruction

improperly shifted the burden to the defense to disprove the intent element of possession of a

controlled substance with intent to deliver. We disagree.


           We review challenged jury instructions de novo. State v. Levy, 156 Wn.2d 709, 721, 132

P. 3d 1076 ( 2006).           Jury instructions must inform the jury that the State bears the burden of

proving beyond a reasonable doubt each essential element of a criminal offense. State v. Peters,

163 Wn.        App.   836, 847, 261 P. 3d 199 ( 2011).             A trial court commits reversible error by

 instruct[ ing] the         jury   in   a manner   that   would relieve   the State   of   this burden."   State v. Pirtle,


127 Wn.2d 628, 656, 904 P. 2d 245 ( 1995).                    In   general, "   jury instructions are sufficient when,




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No. 44117 -9 -II



read as a whole, they accurately state the law, do not mislead the jury, and permit each party to

argue its theory     of      the case."   State v. Teal, 152 Wn.2d 333, 3.39, 96 P. 3d 974 ( 2004).


         Unwitting possession is a judicially- created affirmative defense that was designed to

ameliorate the harshness of the strict liability offense of unlawful possession of a controlled

substance.      State   v.   Bradshaw, 152 Wn.2d 528, 538, 98 P. 3d 1190 ( 2004); State v. Balzer, 91


Wn.   App.     44, 67, 954 P. 2d 931 ( 1998). "       To establish the defense, the defendant must prove, by

a preponderance of the evidence, that his or her possession of the unlawful substance was


unwitting."      Balzer, 91 Wn. App. at 67.

           When used as an affirmative defense to an unlawful possession of a controlled substance


charge, an unwitting possession jury instruction does not improperly shift the burden of proof.

Bradshaw, 152 Wn.2d at 538. Unwitting possession is not, however, an affirmative defense to

the   crime of possession of a controlled substance with            intent to deliver because "[ i]t is


impossible for      a person      to intend to ...   deliver a controlled substance without knowing what he

or she   is   doing." State v. Sims, 119 Wn.2d 138, 142, 829 P. 2d 1075 ( 1992).

           Here, the trial court' s unwitting possession jury instruction tracked 11 Washington

Practice: Washington Pattern Jury Instructions: Criminal 52. 01, at 1007 ( 3d edition 2008),

stating:


                    A person is ' not guilty of possession of a controlled substance if the
           possession  is unwitting. Possession of a controlled substance is unwitting if a
           person did not know that the substance was in her possession or did not know the
           nature of the substance.

                    The burden is on the defendant to prove by a preponderance of the
           evidence     that the substance was         possessed   unwittingly.   Preponderance of the

           evidence means that you must be persuaded, considering all of the evidence in the
           case, that it is more probably true than not true.



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No. 44117 -9 -II



Clerk' s Papers ( CP) at 84. Fairman does not argue that the trial court erred by instructing the

jury on the affirmative defense of unwitting possession, nor does she argue that the instruction' s

language was erroneous. Rather, Fairman argues that the trial court' s failure to clarify to the jury

that the unwitting possession defense applied only to the unlawful possession of a controlled

substance charge, and not to the unlawful possession of a controlled substance with intent to

deliver   charge, "   left jurors free to assume that the defense applied to the possession with intent

charge."    Br. of Appellant at 10.


          Fairman' s argument, however, overlooks language in the trial court' s unwitting

possession    jury    instruction that   states, "   A person is not guilty ofpossession ofa controlled

substance    if the   possession   is unwitting." CP       at   84 ( emphasis   added).   This language clearly and

unequivocally informed the jury that the unwitting possession defense applied only to the

possession ofa controlled substance charge and, thus, the trial court was not required to provide

any further clarifying instructions.          Teal, 152 Wn.2d at 339. Moreover, the trial court' s jury

instructions,     when " read as a whole,"       clearly informed the jury that, to convict Fairman of

unlawful possession of a controlled substance with intent to deliver, the State had to prove


beyond a reasonable doubt the essential element that Fairman intended to deliver a controlled

substance.     Teal, 152 Wn.2d at 339; CP at 75, 80. Nothing in the trial court' s unwitting

possession jury instruction negated the State' s burden in this regard.

           Fairman also argues that the sequence of the trial court' s instructions " exacerbated the


risk   that the   jury would   misunderstand         the burden   of proof."    Br. of Appellant at 10. This


argument is unavailing as we have determined the unwitting possession jury instruction clearly

informed the jury that the       affirmative     defense   applied   only to the   unlawful possession of a
No. 44117 -9 -II



controlled substance charge. Additionally, we presume that juries follow a trial court' s

instructions and, here, the trial court provided the jury with an instruction that stated in part,

 The   order of    these instructions      has   no significance as            to their   relative   importance....    During

your   deliberations,    you must consider           the instructions          as a whole."     CP at 72. Because this


instruction directed the jury to not place any emphasis on the sequence of jury instructions and to

consider the jury instructions as a whole, Fairman' s contention with the jury instructions'

sequence fails. Accordingly, we hold that the trial court' s unwitting possession jury instruction

did not shift the burden on Fairman to disprove the essential element of intent to deliver.

                                           II. PROSECUTORIAL MISCONDUCT


            Next, Fairman contends that the prosecutor committed misconduct during closing

argument. Specifically, she asserts that the prosecutor misled the jury on the State' s burden of

proof   by telling the jury, " So       we    don' t really have to          prove much of       anything."    RP at 229. We


disagree that this was improper. Fairman also asserts that the prosecutor improperly expressed a

personal opinion on witness             credibility      by referring       to Jones   as   Fairman' s "   so- called niece," and




by   stating, "   I' 11 guarantee you after three months there' s certainly a conversation between the

two    of   them that   could   say,   hey,   take   a   look   at   this   evidence."      RP at 231, 233. We hold that


these statements were improper, but that Fairman waived any error.

            A defendant claiming prosecutorial misconduct must show both improper conduct and

resulting     prejudice.   State   v.   Fisher, 165 Wn. 2d 727, 747, 202 P. 3d 937 ( 2009). Prejudice exists


when there is a substantial likelihood that the misconduct affected the verdict. State v.

McKenzie, 157 Wn. 2d 44, 52, 134 P. 3d 221 ( 2006). Where, as here, a defendant fails to object to


the prosecutor' s improper statements at trial, such failure constitutes a waiver of prosecutorial



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No. 44117 -9 -II



misconduct claims unless the prosecutor' s statements were " so flagrant and ill-intentioned" that


it caused an " enduring and resulting prejudice" incurable by a jury instruction. State v. Stenson,

132 Wn.2d 668, 719, 940 P. 2d 1239 ( 1997).          In determining whether a prosecutor' s misconduct

warrants reversal, we consider its prejudicial nature and cumulative effect. State v. Boehning,

127 Wn.    App.      511, 518, 111 P. 3d 899 ( 2005).   We review a prosecutor' s remarks during closing

argument in the context of the total argument, the issues in the case, the evidence addressed in


the argument, and the jury instructions. State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P. 3d 432

 2003).


A.        Improper Burden Shifting

          Fairman first argues that the prosecutor' s remark that it did not " have to prove much of


anything" improperly shifted the burden on Fairman to disprove the elements of her charged

offenses. RP at 229. We disagree.


          Although it is improper to for a prosecutor to argue that the burden of proof rests with the


defendant, a prosecutor has wide latitude to argue reasonable inferences from the evidence. State

v.   Thorgerson, 172 Wn.2d 438, 453, 258 P. 3d 43 ( 2011).          A prosecutor may commit misconduct

at closing by arguing that the defense failed to present witnesses or by stating that the jury should

find the defendant guilty based simply on the defendant' s failure to present evidence to support

the defense theory of the case. State v. Sells, 166 Wn. App. 918, 930, 271 P. 3d 952 ( 2012)

 citing State   v.   Jackson, 150 Wn.    App. 877,   885, 209 P. 3d 553 ( 2009)), review denied, 176


Wn.2d 1001 ( 2013).         However, "` [t]he   mere mention that defense evidence is lacking does not

constitute prosecutorial misconduct or shift         the burden   of proof   to the defense.'   A prosecutor is




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No. 44117 -9 -II



entitled   to   point out a     lack   of   evidentiary      support   for the defendant' s theory    of   the   case."   Sells,


166 Wn. App. at 930 ( quoting Jackson, 150 Wn. App. at 885 -86).

           Here, viewed in context, the prosecutor' s statement that it did not " have to prove much of


anything," referred to the evidence presented at trial and how such evidence was uncontested in


relation to several of the elements of the charges against Fairman. RP at 229. The prosecutor


immediately followed up on this challenged statement with specific references to the elements of

the crimes charged and the uncontested evidence supporting _
                                                           those elements. Because the

prosecutor' s remark referred to the uncontested evidence at trial and did not suggest to the jury

that the defense had a burden to disprove any element of the charged offenses, Fairman fails to

demonstrate prosecutorial misconduct on this ground.


B.         Witness Credibility

           Next, Fairman         argues     that the   prosecutor' s remark, " I'      ll guarantee you after three months


there' s certainly a conversation between the two of them that could say, hey, take a look at this

evidence,"       and   its   reference   to Jones      as   Fairman'   s " so- called niece,"   improperly expressed a

personal opinion on witness credibility. RP at 231, 233.

           A prosecutor' s expressions of personal opinion about the defendant' s guilt or the


witnesses' credibility are improper. Dhaliwal, 150 Wn.2d at 577- 78. To determine whether the

prosecutor has improperly expressed a personal opinion, we view the challenged comments in

context. McKenzie, 157 Wn.2d at 53.


            It is not uncommon for statements to be made in final arguments which, standing
           alone, sound         like   an expression of personal opinion.               However, when judged in
           the light of the total argument, the issues in the case, the evidence discussed
           during      the    argument,       and   the     court' s   instructions,   it is usually apparent that
           counsel is trying to convince the jury of certain ultimate facts and conclusions to
           be drawn from the           evidence.       Prejudicial error does not occur until such time as it

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No. 44117 -9 -I1



        is clear and unmistakable that counsel is not arguing an inference from the
        evidence, but is expressing a personal opinion."

McKenzie, 157 Wn.2d at 53 -54 ( quoting State v. Papadopoulos, 34 Wn. App. 397, 400, 662 P. 2d

59 ( 1983)).


        Here, the prosecutor' s remark that it would " guarantee" that Fairman and Jones


 certainly" had a conversation in which they discussed the State' s evidence before trial

constituted an improper expression of the prosecutor' s personal opinion. Although it was


improper for the prosecutor to " guarantee" that Fairman and Jones had discussed this, we cannot


say that the improper remark was " so flagrant and ill-intentioned" that it caused an " enduring

and resulting prejudice" incurable by a jury instruction. Stenson, 132 Wn.2d at 719.

        Viewing the prosecutor' s statement in context, it appears that the prosecutor was

attempting to argue a reasonable inference from the evidence that Jones had tailored her

testimony to include details regarding the packaging of methamphetamine that she was unaware

of until discussing the case with Fairman. There was evidence presented at trial to support this

argument. For example, on cross -examination the State questioned Jones about how her initial


statement to police failed to mention certain details of the condition of the drugs and


paraphernalia found in Fairman' s purse that Jones had testified about during her direct

examination. Additionally, Jones admitted on cross -examination that she had an opportunity to

discuss the case with Fairman before trial, although she denied having done so. The prosecutor

referenced this evidence during its closing argument, when it stated:

         She knew     what was   in there,   yet she couldn'   t describe it.   Two months later she
         says, well, it was just a black cross.
                   Yeah, there was a black cross, and I' ll guarantee you after three months
         there' s certainly a conversation between the two of them that could say, hey, take
         a look at this evidence. The methamphetamine bag said black cross, it looks like



                                                       9
No. 44117 -9 -II



           a black cross on there. That was it, it' s all that she described. And then today she
           came in here and she said, well, there' s number ones on there and there' s black
           crosses.

                    And this story has just grown.

RP   at   233.   Accordingly, it was not improper for the prosecutor to argue to the jury that it could

reasonably infer Jones had discussed the State' s evidence with Fairman before trial and tailored

her testimony accordingly. It was, however, improper to " guarantee" such an inference. The

trial court, though, could have cured any prejudice flowing from the prosecutor' s improper

remark by instructing the jury to disregard it had Fairman objected. Accordingly, we hold that

Fairman has waived her prosecutorial misconduct claim based on this statement.


           Fairman also argues that the prosecutor' s reference to Jones as Fairman' s " so- called

niece"    improperly    expressed a personal opinion about     Jones'   s   credibility. RP     at   231.   We agree


that the prosecutor' s reference to Jones as Fairman' s " so- called niece" was improper, because

there was no evidence presented at trial to contradict Jones' s testimony that she was Fairman' s

niece. Although the prosecutor' s statement was improper, Fairman did not object to the


statement at trial, and we hold that she cannot demonstrate that the statement was so flagrant or

ill intentioned that an instruction could not have cured the prejudice. Here the prosecutor' s


reference to Jones as Fairman' s " so- called niece" was brief and did not refer to any evidence that

was relevant to an element of the charged crimes. Moreover, the trial court' s jury instructions

informed the jury that " the lawyer' s statements are not evidence" and to " disregard any remark,

statement or argument ...       not supported   by the   evidence."   CP     at   71.   In light of the brevity of

the prosecutor' s remark, the remark' s irrelevance to any fact of consequence in the case,

Fairman' s failure to object, and the trial court' s instructions to disregard any of the prosecutor' s

remarks that were unsupported by the evidence, we hold that Fairman cannot demonstrate the

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No. 44117 -9 -II



requisite prejudice and has waived any error regarding the improper statement. Thus, she fails to

demonstrate prosecutorial misconduct on this ground.


                              III. INEFFECTIVE ASSISTANCE OF COUNSEL


        Finally, Fairman contends that her defense counsel was ineffective for failing to object to

the trial court' s unwitting possession jury instruction and to the prosecutor' s improper closing

argument. We disagree.


        We review ineffective assistance of counsel claims de novo. State v. Binh Thach, 126


Wn.   App.   297, 319, 106 P. 3d 782 ( 2005). To prevail on an ineffective assistance of counsel


claim, Fairman must show both that (1) counsel' s performance was deficient and ( 2) the


deficient performance prejudiced her. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.

2052, 80 L. Ed. 2d 674 ( 1984); State v. Brockob, 159 Wn.2d 311, 344 -45, 150 P. 3d 59 ( 2006).


Performance is deficient if, after considering all the circumstances, it falls below an objective

standard of reasonableness. State v. McFarland, 127 Wn.2d 322, 334 -35, 899 P. 2d 1251 ( 1995).


Prejudice results if the outcome of the trial would have been different had defense counsel not

rendered deficient performance. McFarland, 127 Wn.2d at 337. If Fairman fails to establish


either prong of this test, our inquiry ends and we need not consider the other prong. State v.

Hendrickson, 129 Wn.2d 61, 78, 917 P. 2d 563 ( 1996).      We strongly presume that counsel is

effective and the defendant must show the absence of any legitimate strategic or tactical reason

supporting defense counsel' s actions. McFarland, 127 Wn.2d at 337.

        Fairman cannot demonstrate that her defense counsel was ineffective for failing to object

to the trial court' s unwitting possession jury instruction as we have held that the instruction to be

proper. Fairman similarly fails to demonstrate ineffective assistance for her counsel' s failure to


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No. 44117 -9 -II



object to the first challenged statement of the prosecutor, since we have held that this statement

argued a proper inference from the evidence and did not improperly shift the State' s burden of

proof.




         Fairman also cannot demonstrate ineffective assistance based on defense counsel' s failure

to object to the prosecutor' s " guarantee" remark. Although the remark was improper and an


objection could have resulted in the giving of a curative instruction, we cannot say that the

outcome of Fairman' s trial would have probably differed had defense counsel lodged an

objection. As we held above, the prosecutor' s statement was improper only insofar as it

 guarantee[     d]" the fact that Fairman and Jones had discussed the State' s evidence before trial.


Accordingly, Fairman cannot show the requisite prejudice to establish ineffective assistance of

counsel on this ground.


         Finally, Fairman cannot demonstrate that her defense counsel was ineffective for failing

to   object   to the   prosecutor' s reference      to Jones as Fairman' s "        so- called niece,"   because a


legitimate tactical reason supported defense counsel' s decision not to object to this remark.


Here, defense counsel used the prosecutor' s remark during its closing argument to undercut the

State' s assertions about Jones fabricating her testimony, stating:

          All we could do is ask these people questions. You know, did anybody force you,
          anybody        pressure     you,   anybody pay         you,    anybody      ask    you?    We get these
          statements like her friend, her so- called niece, who testified that that was her aunt
          sitting   over     there.   Her   so- called niece.    Is   she   lying   about   that, too?   And why in
          the world does she do that?
                       She   gives a statement      to the   pol—     she gives a statement June 1 lth, talks to
          the   police about a month and a                  July. So the prosecutor makes
                                                       half later,     end of

          pains to point out inconsistencies. Well, you know, I' d submit to you that if these
          two were in cahoots and they were going to sit down and say, okay, here' s the
          deal,   you    take the fall for    me.    Okay,    sure.    You catch the felony. Okay, sure.



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No. 44117 -9 -I1



RP   at   245 -46.   Because a legitimate tactical reason supported defense counsel' s decision not to


object to the prosecutor' s challenged remark, Fairman' s ineffective assistance of counsel claim

fails on this ground.


           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:




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