                                                                                                 Filed
                                                                                           Washington State
                                                                                           Court of Appeals
                                                                                            Division Two

                                                                                           February 11, 2020

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
 STATE OF WASHINGTON,                                                 No. 51732-9-II

                                Respondent,

         v.

 KENNETH LEE KYLLO,                                             UNPUBLISHED OPINION

                                Appellant.

       MELNICK, J. — Kenneth Kyllo appeals after a jury convicted him of two counts of unlawful

possession of a controlled substance with intent to deliver. He argues that he received ineffective

assistance of counsel because his lawyer submitted an unwitting possession jury instruction, and

the court gave it. Kyllo also contends that the trial court erred by failing to exclude evidence seized

pursuant to a search warrant and that the trial court violated his right to counsel. Lastly, he argues

the court’s reasonable doubt jury instruction violated his right to due process. Kyllo also raises a

number of issues in his statement of additional grounds (SAG).

       We affirm the convictions.

                                               FACTS

       In April 2017, Washington State Patrol Trooper Phillip Thoma applied for a warrant to

search a hotel room in Kelso. Thoma’s affidavit in support of the warrant stated that he met with

a confidential informant (CI) on April 19. While in room 203 of a Kelso hotel within 72 hours of

his statement, the CI saw approximately eight ounces of heroin on a table. The CI further related

that the heroin belonged to Kyllo. The CI identified Kyllo from a police photograph. Thoma
51732-9-II


asserted in the affidavit that the CI had conducted multiple controlled buys for law enforcement

and had previously provided information that had proven to be correct and reliable. The reviewing

judge approved the warrant which authorized law enforcement to search the hotel room and Kyllo

for controlled substances, paraphernalia, cash, and various other items such as computers, cell

phones, and media storage devices.

       Police executed the search warrant that same day. Officers knocked and announced they

had a search warrant. No one answered the door, and, after hearing rustling coming from inside

the room, officers forcibly entered.

       Upon entry, officers saw a man, later identified as Thomas Wiggins, sitting at a table, and

a woman, later identified as Nichole Williams, standing between the two beds in the room.

Officers also saw Kyllo holding a backpack and running toward a back window. Thoma ran after

Kyllo and repeatedly told him to stop. Kyllo threw the backpack out the window and then Thoma

detained him.

       Kelso Police Sergeant Kimber Yund was outside of the hotel room and retrieved the

backpack after seeing it drop from the window. Thoma later searched the backpack and found a

digital scale with brown residue, packaging material, $4,800 in cash, approximately nine ounces

of heroin, and prescription pill bottles with Wiggins’s name on them. The heroin was packaged

in nine separate bags, each weighing approximately one ounce.

       During a search of the hotel room, police found methamphetamine, heroin, drug

paraphernalia, a pay/owe sheet,1 a wallet containing Kyllo’s identification, and another pay/ owe




1
 A “pay/owe sheet” is documentation used by drug dealers to document drug sales. They typically
contain names and amounts owed to a drug dealer.


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51732-9-II


sheet on the table where Wiggins had been sitting. Police also found heroin, packaging material,

and drug paraphernalia on, and in, the nightstand close to where Williams had been standing.

        The State charged Kyllo with two counts of unlawful possession of a controlled substance

with intent to deliver, one for methamphetamine and the other for heroin. Before trial, Kyllo

moved in limine to exclude testimony that officers were executing a search warrant to look for

Kyllo and controlled substances, arguing that the testimony would be prejudicial. The trial court

denied the motion in limine. The matter proceeded to trial, at which witnesses testified consistent

with the facts above. Additionally, several police officers testified that they went to the hotel room

to find Kyllo and controlled substances.

        Kyllo testified that Wiggins invited him to the hotel room and that he was just a guest. He

further related he had no knowledge that any drugs were in the room until after police arrived.

Kyllo said that he threw the backpack out the window after Wiggins tossed him the backpack and

told him to do it.

        The trial court provided “to-convict” jury instructions for both counts of unlawful

possession of a controlled substance with intent to deliver that stated, in relevant part, that the State

had to prove beyond a reasonable doubt that “the defendant possessed the [controlled] substance

with the intent to deliver a controlled substance.” Clerk’s Papers (CP) at 36, 38. The trial court

also instructed the jury that “[a] person acts with intent or intentionally when acting with the

objective or purpose to accomplish a result that constitutes a crime.” CP at 34.

        The court instructed the jury on unwitting possession, as proposed by Kyllo’s lawyer. The

State agreed that the instruction was appropriate. It read,

                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 his possession or did not know the
        nature of the substance.


                                                   3
51732-9-II


               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.

CP at 39.

       The trial court provided the jury with a standard reasonable doubt jury instruction that

stated, in part, “If, from such consideration, you have an abiding belief in the truth of the charge,

you are satisfied beyond a reasonable doubt.” CP at 27.

       During closing argument, the State said that the Drug Task Force went to the hotel to

execute a search warrant. “They went to room 203 of that hotel looking for two specific things:

drugs and the Defendant, Ken Kyllo.” Report of Proceedings (RP) (Feb. 16, 2018) at 111.

       Defense counsel stated in closing argument that the State had the burden to prove Kyllo

possessed the controlled substances with the intent to deliver the substances. Defense counsel

discussed the definitional instruction for intent and reminded the jury that the State had the burden

to prove intent. Defense counsel reiterated that the State carried the burden to prove intent despite

the unwitting possession jury instruction, stating, “And if you believe my client possessed it then

there is a defense, if proven, that the defense [sic] was—the possession was unwitting. If we

haven’t met that burden, they still have to prove that the possession was done with a specific intent

to deliver.” RP (Feb. 16, 2018) at 127. Defense counsel argued that Wiggins’s and Williams’s

presence in the hotel room created a reasonable doubt that Kyllo was the person in possession of

the drugs found in the room.

       In rebuttal, the State argued that the jury should consider the fact that police went to the

hotel room to look for Kyllo, rather than the other individuals who were in the room, and should

consider this fact when evaluating the argument that another individual may have possessed the

drugs found in the hotel room.


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51732-9-II


        The jury returned verdicts finding Kyllo guilty of both counts of unlawful possession of a

controlled substance with intent to deliver.

        At a hearing prior to sentencing, Kyllo personally addressed the trial court and requested a

new trial. He also asked for new counsel based on alleged ineffective assistance at trial. Kyllo

asserted that his defense counsel had urged him not to accept a plea offer from the State, failed to

call a key witness to testify at trial, and failed to request a lesser-included jury instruction.

        The trial court denied Kyllo’s requests for a new trial and for a new attorney. It reasoned

that these claims would be best addressed through the appellate process. Kyllo appeals.

                                             ANALYSIS

I.      INEFFECTIVE ASSISTANCE OF COUNSEL

        Kyllo contends that he received ineffective assistance of counsel because his lawyer

proposed an unwitting possession jury instruction for his charges of unlawful possession of a

controlled substance with intent to deliver. We disagree.

        The Sixth Amendment to the United States Constitution and article I, section 22 of the

Washington Constitution guarantee a criminal defendant’s right to effective assistance of counsel.

State v. Estes, 188 Wn.2d 450, 457, 395 P.3d 1045 (2017). To prevail on his claim of ineffective

assistance of counsel, Kyllo must show both that his counsel’s representation was deficient and

that the deficient representation resulted in prejudice. Estes, 188 Wn.2d at 457-58. Representation

is deficient if, after consideration of the circumstances, “it falls ‘below an objective standard of

reasonableness.’” Estes, 188 Wn.2d at 458 (quoting State v. McFarland, 127 Wn.2d 322, 334-35,

899 P.2d 1251 (1995)). A strong presumption exists that counsel’s representation was reasonable.

Estes, 188 Wn.2d at 458. Performance is not deficient when the lawyer’s conduct involves

legitimate trial strategy or tactics. Estes, 188 Wn.2d at 458.



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51732-9-II


        Prejudice exists if there is a reasonable probability that the outcome of the proceeding

would have differed had counsel not rendered deficient performance. Estes, 188 Wn.2d at 458.

Reasonable probability in this context means a probability sufficient to undermine confidence in

the outcome of the trial. Estes, 188 Wn.2d at 458.

        The State concedes that defense counsel rendered deficient performance by proposing an

unwitting possession jury instruction. We reject the State’s concession. The lawyer made a

reasonable tactical decision in requesting the unwitting possession instruction.

        Although a trial court may not have to instruct the jury on unwitting possession when a

defendant is charged with possession with intent to deliver, a defense lawyer is not deficient for

requesting the instruction if it is consistent with the asserted defense and made for legitimate

tactical reasons.2

        The State has the burden of proving all the essential elements of a charged crime beyond a

reasonable doubt. State v. Rich, 184 Wn.2d 897, 903, 365 P.3d 746 (2016). Unlawful possession

of a controlled substance is a strict liability crime for which the State has no burden of proving a

mental element. State v. Bradshaw, 152 Wn.2d 528, 538, 98 P.3d 1190 (2004). Defendants

charged with unlawful possession of a controlled substance may, however, raise the affirmative

defense that they unwittingly possessed the substance. Bradshaw, 152 Wn.2d at 538. To prove

unwitting possession, defendants carry the burden of showing by a preponderance of the evidence

that they did not know that the substance was in their possession or that they did not know the



2
  It is outside the scope of this opinion to decide if a court errs by not instructing the jury at the
defendant’s request on unwitting possession when the defendant is charged with possession with
intent to deliver. We understand there is a strong argument that it is not error; however, we are
deciding the sole issue of whether a lawyer renders ineffective assistance by requesting such an
instruction. Here, Kyllo has not argued that the court erred by instructing the jury on unwitting
possession.


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51732-9-II


nature of the substance. State v. Sandoval, 8 Wn. App. 2d 267, 281, 438 P.3d 165, review denied,

193 Wn.2d 1028 (2019). When used as an affirmative defense to unlawful possession of a

controlled substance, an unwitting possession jury instruction does not improperly shift the burden

of proof. Bradshaw, 152 Wn.2d at 538.

       On the other hand, unlawful possession of a controlled substance with intent to deliver

includes the mens rea element of intent that the State must prove beyond a reasonable doubt. State

v. Sims, 119 Wn.2d 138, 142, 829 P.2d 1075 (1992). There is an argument that requiring the

defendant to prove that their possession was unwitting by a preponderance of the evidence in a

prosecution for unlawful possession of a controlled substance with intent to deliver improperly

shifts the State’s burden to prove the mens rea element of intent to the defendant, because

knowledge of the nature of the substance is subsumed by the intent element. See State v. Carter,

127 Wn. App. 713, 717, 112 P.3d 561 (2005).

       Here, defense counsel relied on the unwitting possession instruction in his closing

argument. This argument demonstrates that defense counsel clearly had a tactical reason for asking

the court to give the instruction and supports the strong presumption that defense counsel’s

performance was reasonable.

       Even if a court need not instruct on unwitting possession, the unwitting possession

instruction in this case permitted Kyllo’s lawyer to argue his theory of the defense with the support

of a jury instruction from the court, thus making his arguments stronger. Requesting the instruction

was a legitimate tactical decision.3



3
  Because we conclude that Kyllo’s counsel did not render ineffective assistance, we need not
address prejudice. However, we do agree with the State that Kyllo has also not shown prejudice.
Kyllo argued his theory of the case and the jury found both that he possessed the controlled
substances and that he intended to deliver them.


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51732-9-II


II.    VALIDITY OF SEARCH WARRANT

       Next, Kyllo raises several claims regarding the validity of the search warrant including that

the search warrant affidavit contained stale information, the affidavit failed to establish probable

cause because it did not show the CI’s basis of knowledge, and it is overbroad.

       Generally, a search warrant can be issued only if there is a determination of probable cause.

State v. Thein, 138 Wn.2d 133, 140, 977 P.2d 582 (1999). “Probable cause exists if the affidavit

in support of the warrant sets forth facts and circumstances sufficient to establish a reasonable

inference that the defendant is probably involved in criminal activity and that evidence of the crime

can be found at the place to be searched.” Thein, 138 Wn.2d at 140. A nexus must exist between

the criminal activity and the items to be seized, and between the item to be seized and the place

that will be searched. Thein, 138 Wn.2d at 140.

       A.      Raised for the First Time on Appeal

       As an initial matter, Kyllo did not move at trial to suppress any evidence seized pursuant

to the search warrant. In general, we do not address claims of error raised for the first time on

appeal. RAP 2.5(a). But in RAP 2.5(a)(3) an exception exists where an appellant can show a

manifest error affecting a constitutional right. State v. Gordon, 172 Wn.2d 671, 676, 260 P.3d 884

(2011). To show manifest error, Kyllo must demonstrate actual and identifiable prejudice to his

constitutional rights at trial. State v. Kirkman, 159 Wn.2d 918, 926-27, 155 P.3d 125 (2007). To

demonstrate actual prejudice in this context, Kyllo must show that the trial court would have

excluded evidence in response to a suppression motion raising these claims and that such exclusion

would have had a practical and identifiable consequence at trial. McFarland, 127 Wn.2d at 333-

34; Gordon, 172 Wn.2d at 676. To determine whether Kyllo has made this threshold showing, we




                                                  8
51732-9-II


necessarily must evaluate the merits of his alleged errors. State v. Walsh, 143 Wn.2d 1, 8, 17 P.3d

591 (2001).

       B.      Staleness

       Kyllo first challenges the search warrant affidavit for staleness.

       A search warrant affidavit must contain facts to support an issuing court’s conclusion “that

the evidence is probably at the premises to be searched at the time the warrant is issued.” State v.

Lyons, 174 Wn.2d 354, 360, 275 P.3d 314 (2012). We evaluate it “in a commonsense manner,

rather than hypertechnically, and any doubts are resolved in favor of the warrant.” State v. Jackson,

150 Wn.2d 251, 265, 76 P.3d 217 (2003).

               Whether information in a search warrant affidavit is stale depends on the

circumstances of each case. Lyons, 174 Wn.2d at 361. Some length of time naturally passes

between the observations of suspected criminal activity and the presentation to a judge of a search

warrant affidavit. Lyons, 174 Wn.2d at 360. But when the passage of time is so prolonged that it

is no longer probable that a search warrant will uncover evidence of criminal activity, the

information underlying the affidavit is deemed stale. Lyons, 174 Wn.2d at 360-61. In addition to

the passage of time, a determination of staleness depends on the nature and scope of the alleged

criminal activity, the length of the activity, and the type of property to be seized. State v. Maddox,

152 Wn.2d 499, 506, 98 P.3d 1199 (2004).

       Here, the April 19 search warrant affidavit stated that Thoma met with a CI that same day.

The CI told Thoma that he/she was in a hotel room “within the last 72 hours” and saw

approximately eight ounces of heroin on a table in the room. CP at 6. The search warrant issued

that same day and required that it be executed within one day of its issuance.




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51732-9-II


        Kyllo argues that, given the transient nature of hotel guests, the CI’s statement about seeing

drugs in the hotel room within the past 72 hours was stale. We disagree.

        When evaluating the search warrant affidavit in a commonsense manner and resolving all

doubts in favor of the search warrant’s validity, it is reasonable to infer that evidence of illicit drug

activity would be found at the hotel room within, at most, two days of the CI’s statement, given

the large quantity of drugs observed. Accordingly, Kyllo fails to make the threshold showing of

actual prejudice as required under RAP 2.5(a)(3).

        C.      CI’s Basis of Knowledge

        Next, Kyllo argues that the search warrant affidavit failed to establish the CI’s basis of

knowledge for asserting the drugs belonged to Kyllo. Again, Kyllo fails to make a threshold

showing of actual prejudice.

        When determining whether probable cause existed to issue a search warrant based on an

informant’s information, we apply the Aguilar-Spinelli4 two-pronged test. State v. Atchley, 142

Wn. App. 147, 161, 173 P.3d 323 (2007). This test examines the (1) “‘veracity’” or credibility of

the informant and (2) the informant’s “‘basis of knowledge.’” Atchley, 142 Wn. App. at 161

(quoting State v. Jackson, 102 Wn.2d 432, 435, 688 P.2d 136 (1984)). The basis of knowledge

prong is satisfied by information that the informant personally saw the facts asserted and is passing

on firsthand information. State v. McCord, 125 Wn. App. 888, 893, 106 P.3d 832 (2005). The

veracity and basis of knowledge prongs are independent and both must be established in the

affidavit. Jackson, 102 Wn.2d at 437.



4
 Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964); Spinelli v. United States,
393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969), abrogated by Illinois v. Gates, 462 U.S. 213,
103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983), but adhered to by State v. Jackson, 102 Wn.2d 432, 688
P.2d 136 (1984).


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51732-9-II


       Kyllo challenges only the basis of knowledge prong and only insofar as the CI failed to

supply a basis of knowledge that the drugs observed in the hotel room belonged to Kyllo. The

ownership of the drugs is not at issue in the search warrant. The issue is whether the contraband

would be found in the hotel room at the time of the search. Here, the CI passed on firsthand

information about personally seeing a large quantity of heroin in a specific hotel room. This

information satisfied the basis of knowledge prong and gave rise to probable cause to search the

hotel room for evidence of illicit drug activity.

       The CI’s reference to Kyllo owning the drugs does not form a basis to suppress the evidence

found in the hotel room or backpack. At trial, the State would have to prove Kyllo possessed the

drugs; even if he did not own them, it does not diminish the probable cause that the drugs would

be found in the place to be searched.5 In arriving at this conclusion, we note that Kyllo does not

argue that his arrest after police entered the hotel room was somehow invalid.

       Kyllo cannot demonstrate that a motion to suppress evidence seized from the hotel room

would have been granted. Accordingly, Kyllo cannot demonstrate actual prejudice to review this

claim on its merits under RAP 2.5(a)(3).6




5
  Moreover, the search warrant affidavit provides support for the conclusion that the CI had a basis
of knowledge that the controlled substances belonged to Kyllo. The CI observed Kyllo with a
large quantity of drugs in the hotel room, and the CI identified Kyllo by identifying a photograph
of him.
6
  A factual dispute existed at trial about whether the police obtained Kyllo’s wallet from his person
or on a table. Even assuming the police unlawfully seized Kyllo’s wallet from his person and that
it should have been suppressed, sufficient evidence existed to convict Kyllo based on the remaining
evidence.


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51732-9-II


       D.      Overbroad Search Warrant

       Next, Kyllo argues that the search warrant was overbroad because it permitted the police

to search and seize items lacking any nexus to the suspected criminal activity. The State concedes

that the search warrant was overbroad, but contends that the valid portion of the search warrant

was severable and that no evidence seized outside the scope of the valid portion of the search

warrant was used at trial.

       Here, Kyllo does not address severability of the search warrant and does not identify any

evidence admitted at trial that was obtained as a result of the overbroad portion of the search

warrant in either his opening brief or in his reply to the State’s response brief. This failure to

address severability renders Kyllo’s argument insufficient to merit judicial review. Accordingly,

we decline to address the merits of this claim.

       E.      Ineffective Assistance of Counsel

       In the alternative, Kyllo argues that he received ineffective assistance of counsel because

of the failure to file a motion to suppress evidence. But, as discussed, the record fails to

demonstrate that a suppression motion should have been granted. Accordingly, Kyllo cannot show

the requisite prejudice to support a claim of ineffective assistance of counsel on this basis.

III.   EVIDENCE NOT OVERLY PREJUDICIAL

       Next, Kyllo contends that the trial court violated ER 403 and denied his due process right

to a fair trial by denying his motion to suppress evidence that the search warrant permitted police

to search for him and for controlled substances in the hotel room. We disagree.

       We review a trial court’s evidentiary ruling for an abuse of discretion. State v. Scherf,

192 Wn.2d 350, 387, 429 P.3d 776 (2018).




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51732-9-II


“A trial court abuses its discretion when its decision is manifestly unreasonable or exercised on

untenable grounds or for untenable reasons.” State v. Lord, 161 Wn.2d 276, 283-84, 165 P.3d

1251 (2007). “Allegations that a ruling violated the defendant’s right to a fair trial does not change

the standard of review.” State v. Dye, 178 Wn.2d 541, 548, 309 P.3d 1192 (2013).

       ER 403 states, “Although relevant, evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading

the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative

evidence.” Here, evidence that the search warrant permitted police to search for Kyllo and for

controlled substances was relevant to show the reasons for the police presence at the hotel room

and a lawful basis for their entry into the hotel room.

       The probative value of this evidence was not “substantially outweighed” by the danger of

unfair prejudice because the testimony regarding the subjects of the search warrants was brief,

limited to the fact that police had a warrant permitting them to search for Kyllo and drugs in the

hotel room, and did not expand on the facts supplying probable cause for issuance of the warrant.

Accordingly, the trial court acted within its discretion when denying Kyllo’s motion to suppress

evidence.7

IV.    MOTION FOR APPOINTMENT OF NEW COUNSEL

       Next, Kyllo contends that the trial court violated his right to counsel by denying his motion

for appointment of new counsel absent an adequate inquiry about his alleged conflict with counsel.

We disagree.


7
  Kyllo asserts that the prosecutor’s closing argument emphasizing that he was the subject of the
search warrant demonstrates the prejudicial nature of such evidence. But Kyllo does not claim
that the prosecutor committed misconduct during closing argument, and even assuming that such
argument is improper, we fail to discern how it would inform our review of the trial court’s
evidentiary decision.


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51732-9-II


        The Sixth Amendment to the United States Constitution and article I, section 22 of the

Washington Constitution provide criminal defendants with the right to counsel. The constitutional

right to counsel does not, however, provide indigent defendants with the right to choose a particular

advocate. State v. Varga, 151 Wn.2d 179, 200, 86 P.3d 139 (2004).

        A defendant must show good cause to justify the appointment of new defense counsel.

Varga, 151 Wn.2d at 200. Good cause includes a conflict of interest, an irreconcilable conflict, or

a complete breakdown in communication between the defendant and defense counsel. Varga, 151

Wn.2d at 200. In general, “a defendant’s loss of confidence or trust in his counsel is not sufficient

reason to appoint new counsel.” Varga, 151 Wn.2d at 200.

        “We review a trial court’s refusal to appoint new counsel for an abuse of discretion.” State

v. Lindsey, 177 Wn. App. 233, 248, 311 P.3d 61 (2013). A trial court abuses its discretion when

its decision is manifestly unreasonable or based on untenable grounds. Lindsey, 177 Wn. App. at

248-49. When reviewing a trial court’s refusal to appoint new counsel, we consider the timeliness

of the motion, the adequacy of the trial court’s inquiry, and the extent of the conflict. Lindsey, 177

Wn.2d at 249.

        Here, Kyllo moved for appointment of new counsel after the jury returned its verdicts

finding him guilty but before sentencing. The trial court permitted Kyllo to state his concerns.

Kyllo did not allege any conflict of interest, irreconcilable conflict, or complete breakdown in

communications preventing defense counsel from adequately representing him at his forthcoming

sentencing hearing. Instead, Kyllo requested a new trial with a newly appointed counsel, asserting

that his counsel was ineffective at trial for failing to present certain evidence. The trial court denied

Kyllo’s motion for a new trial with a newly appointed attorney, noting that his ineffective

assistance of counsel claims were a proper subject for appeal.



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51732-9-II


         We conclude that the trial court did not abuse its discretion by denying Kyllo’s motion for

new counsel. Kyllo moved for new counsel after the jury returned its verdicts, the trial court

permitted Kyllo to fully air his concerns with defense counsel, and Kyllo did not allege any conflict

preventing adequate representation at sentencing.

V.       REASONABLE DOUBT JURY INSTRUCTION

         Next, Kyllo contends that the trial court’s standard reasonable doubt jury instruction

violated his due process and jury trial rights. We disagree.

         The reasonable doubt instruction provided here was based on 11 WASHINGTON PRACTICE:

WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 4.01, at 93 (4th ed. 2016) (WPIC). WPIC

4.01 provides in relevant part, “If, from such consideration, you have an abiding belief in the truth

of the charge, you are satisfied beyond a reasonable doubt.” CP at 27 (emphasis added). Kyllo

claims that the emphasized language impermissibly directed the jury to engage in a search for the

truth.

         We previously rejected this same claim in State v. Jenson, 194 Wn. App. 900, 901-02, 378

P.3d 270 (2016), and decline Kyllo’s request to revisit the issue here.

VI.      STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW

         A.     Confrontation Right

         Kyllo first argues in his SAG that his constitutional confrontation right was violated

because he was not permitted to confront the CI who provided information in the search warrant

affidavit. We disagree.

         The Sixth Amendment of the United States Constitution “bars ‘admission of testimonial

statements of a witness who did not appear at trial.’” State v. Pugh, 167 Wn.2d 825, 831, 225 P.3d

892 (2009) (internal quotation marks omitted) (quoting Davis v. Washington, 547 U.S. 813, 821,



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51732-9-II


126 S. Ct. 2266, 165 L. ED. 2d 224 (2006)). Here, the State did not present any statements made

by the CI at trial and, thus, Kyllo cannot show a violation of his confrontation right. Moreover,

Kyllo has waived his right to raise a confrontation clause violation on appeal because he did not

object on that ground at trial. See State v. Burns, 193 Wn.2d 190, 208, 438 P.3d 1183 (2019).

       B.      Sufficiency of the Evidence

       Kyllo appears to argue that the State failed to present sufficient evidence to support his

convictions. Again, we disagree.

       Evidence is sufficient to support a guilty verdict if any rational trier of fact, viewing the

evidence in the light most favorable to the State, could find the elements of the charged crime

beyond a reasonable doubt. State v. Longshore, 141 Wn.2d 414, 420-21, 5 P.3d 1256 (2000). “In

claiming insufficient evidence, the defendant necessarily admits the truth of the State’s evidence

and all reasonable inferences that can be drawn from it.” State v. Homan, 181 Wn.2d 102, 106,

330 P.3d 182 (2014). “We defer to the jury ‘on issues of conflicting testimony, credibility of

witnesses, and the persuasiveness of the evidence’”. State v. Andy, 182 Wn.2d 294, 303, 340 P.3d

840 (2014) (quoting State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004).

       To convict Kyllo of unlawful possession of a controlled substance with intent to deliver,

the State had to prove beyond a reasonable doubt that he (1) possessed (2) a controlled substance

(3) with intent to deliver the controlled substance. Former RCW 69.50.401 (2015).

       Possession of a controlled substance may be actual or constructive. State v. Ibarra-

Cisneros, 172 Wn.2d 880, 897, 263 P.3d 591 (2011). Actual possession occurs when a defendant

has physical custody of the item, and constructive possession occurs if the defendant has dominion

and control over the item. State v. Jones, 146 Wn.2d 328, 333, 45 P.3d 1062 (2002). Dominion

and control can be over “either the drugs or the premises on which the drugs were found.” State



                                                16
51732-9-II


v. Callahan, 77 Wn.2d 27, 31, 459 P.2d 400 (1969). “Dominion and control need not be

exclusive.” State v. Summers, 107 Wn. App. 373, 384, 28 P.3d 780 (2001).

       Mere possession of a controlled substance is insufficient to prove an intent to deliver. State

v. Reichert, 158 Wn. App. 374, 391, 242 P.3d 44 (2010). Rather, the State must prove possession

and at least one additional factor that indicates the defendant’s intent to deliver, which may include

substantial amounts of cash, scales, cell phones, address books, baggies, or materials used to

manufacture narcotics. State v. Goodman, 150 Wn.2d 774, 783, 83 P.3d 410 (2004).

       Viewing the evidence in the light most favorable to the State, we conclude that sufficient

evidence supported Kyllo’s unlawful possession of a controlled substance with intent to deliver

convictions. Here, the State presented evidence that Kyllo had actual possession of a backpack

containing nine ounces of heroin. The backpack also contained evidence supporting a finding that

Kyllo possessed the heroin with the intent to deliver, including $4,800 in cash and a digital scale

with brown residue on it. Additionally, the fact that the heroin was packaged in nine separate bags,

each containing approximately one ounce of heroin further supported the jury’s finding that Kyllo

intended to deliver the controlled substance.

       The State also presented evidence sufficient for a jury to find that Kyllo constructively

possessed the methamphetamine found in the hotel room. Kyllo was in the hotel room when police

entered, placing him in close proximity to the methamphetamine. Although Wiggins and Williams

were also present in the hotel room in close proximity to the methamphetamine, dominion and

control need not be exclusive. And, in addition to the evidence showing an intent to deliver found

in the backpack, other evidence found in the hotel room supported a finding of intent to deliver,

including pay/owe sheets and packaging material. Accordingly, sufficient evidence supported

Kyllo’s convictions for unlawful possession of a controlled substance with intent to deliver.



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         C.      Validity of Search Warrant

         Kyllo raises a contention with the validity of the search warrant used to enter his hotel

room that is difficult to discern. We do not address his contention because it is not sufficiently

developed to merit judicial consideration. See RAP 10.10(c) (“[T]he appellate court will not

consider a defendant’s statement of additional grounds for review if it does not inform the court

of the nature and occurrence of alleged errors.”). Moreover, Kyllo did not challenge the validity

of the search warrant at trial and does not argue that RAP 2.5(a) applies to permit us to review his

challenge for the first time on appeal.

         D.      Right to Counsel and Miranda Violation

         Kyllo argues that the State violated his right to counsel by failing to honor his invocation

of Miranda8 rights. Kyllo admits, however, that this alleged violation is not present in the record

before us. The proper avenue for bringing claims based on evidence outside the record is through

a personal restraint petition, not a direct appeal. McFarland, 127 Wn.2d 335. We therefore decline

to address this argument.

         E.      Ineffective Assistance of Counsel

         Kyllo argues that his defense counsel was ineffective for failing to investigate the Miranda

violation alleged above. But, again, we cannot address this argument in this direct appeal because

the alleged violation is not present in this record.

         F.      Cumulative Error

         Kyllo argues that the cumulative effect of trial errors denied his right to a fair trial. A

“defendant may be entitled to a new trial when cumulative errors produce a trial that is

fundamentally unfair.” State v. Emery, 174 Wn.2d 741, 766, 278 P.3d 653 (2012). Cumulative


8
    Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. ED. 2d 694 (1996).


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error applies to instances where there are “several trial errors” that alone do not merit reversal, but

when combined, deny the defendant a fair trial. State v. Greiff, 141 Wn.2d 910, 929, 10 P.3d 390

(2000). Because Kyllo has not established that multiple errors occurred at trial, reversal under the

cumulative error doctrine is not warranted.

        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.




                                                               Melnick, J.

I concur:




        Maxa, C.J.




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       GLASGOW, J. (Dissenting) —The majority improperly rejects the State’s concession that

Kenneth Kyllo’s counsel performed deficiently when he requested an unwitting possession jury

instruction, even though Kyllo had been charged with possession with intent to deliver and not

mere possession of a controlled substance. Because an unwitting possession instruction is

improper where a person has been charged with possession of a controlled substance with intent

to deliver, I respectfully dissent. Instructing the jury that Kyllo had to prove unwitting possession

by a preponderance of the evidence improperly undermined the State’s burden to prove intent

beyond a reasonable doubt. When Kyllo’s counsel undertook a burden of proof for his client while

undermining the State’s burden, that constituted deficient performance. Applying the resulting

presumption of prejudice established in case law, I would also find the contradiction regarding the

burden of proof was error sufficient to undermine confidence in the outcome of the trial. I would

therefore find prejudice and reverse.

       Unwitting possession is an affirmative defense to unlawful possession of a controlled

substance. State v. Bradshaw, 152 Wn.2d 528, 538, 98 P.3d 1190 (2004). In Bradshaw, the

Supreme Court clarified that unlawful possession of a controlled substance does not have a

knowledge element; it is a strict liability offense. Id. Thus, unwitting possession is a judicially-

created affirmative defense that was designed to ameliorate the harshness of the strict liability

crime. Id.; 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.




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       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. In contrast, the elements of the crime of unlawful possession with

intent to deliver include a requisite mental state—intent. State v. Sims, 119 Wn.2d 138, 142, 829

P.2d 1075 (1992). We presume that one who acts with the requisite mental state of intent also acts

with knowledge because one must know something is a controlled substance in order to “deliver”

it under the statute. State v. Sanders, 66 Wn. App. 380, 390, 832 P.2d 1326 (1992). As a result,

knowledge is not a separate element of possession with intent to deliver, but rather is subsumed

within intent. Sims, 119 Wn.2d at 142. Unwitting possession is therefore not an affirmative

defense to the crime of possession 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.” Id.

       The State has the burden to prove each element of a charged crime beyond a reasonable

doubt. In re Matter of Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). Where

the State has charged possession with intent to deliver, the burden to prove possession of a

controlled substance with the requisite intent falls squarely on the State, while the unwitting

possession instruction places a burden on the defendant to prove their state of mind. Therefore,

requiring the defendant to prove unwitting possession by a preponderance of the evidence where

the defendant has been charged solely with unlawful possession with intent to deliver improperly

contradicts the State’s burden to prove the mental state element of intent, in which “knowledge”

is subsumed.

       The unwitting possession instruction given in this case misled the jury to believe Kyllo had

the burden to prove his mental state, which conflicted with the State’s burden to prove the requisite




                                                 21
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mental state beyond a reasonable doubt. This inconsistent instruction was a clear misstatement of

the law and it was deficient performance for defense counsel to request it.

       The majority incorrectly concludes that “defense counsel clearly had a tactical reason” to

request an unwitting possession instruction—to support Kyllo’s argument that he did not know

there were controlled substances in the backpack he threw out the window. Majority at 8. But the

tactical reason must be a legitimate one. State v. Estes, 188 Wn.2d 450, 458, 395 P.3d 1045 (2017).

Here it was not.

       The majority reasons that the unwitting possession instruction “permitted Kyllo’s lawyer

to argue his theory of the defense with the support of a jury instruction from the court.” Majority

at 8. But the jury instruction was not necessary to argue Kyllo’s theory of the case. Where a

defendant has been charged with possession of a controlled substance with intent to deliver, they

can argue that the State has failed to prove possession with the requisite intent because the

defendant did not know that the controlled substance was in their possession. No unwitting

possession instruction is necessary to argue to the jury that a defendant’s lack of knowledge defeats

the element of intent, and presenting the argument in this way firmly preserves the burden on the

State to prove each element of the crime, including the required intent to deliver, beyond a

reasonable doubt.

       When the majority concludes that “[r]equesting the instruction was a legitimate tactical

decision,” it misses a fundamental point.             Id.   The unwitting possession instruction

unconstitutionally shifted to Kyllo the burden to prove his state of mind and contradicted the

State’s burden to prove the element of intent. Defense counsel performed deficiently when he

undertook this burden.




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       The majority attempts to avoid this problem by declining to decide whether giving an

unwitting possession instruction is proper where the defendant has been charged with possession

of a controlled substance with intent to deliver. Majority at 8 n.3. But this ignores the obvious

fact that an instruction that shifts the burden to the defendant to prove the absence of an element

of a crime is a clear violation of the defendant’s constitutional rights. See Winship, 397 U.S. at

364. When defense counsel invited the burden shifting, he invited the violation of his client’s

constitutional right, a clear example of deficient performance. See State v. Carter, 127 Wn. App.

713, 717-18, 112 P.3d 561 (2005).

       Where counsel’s deficiency leads to an improper jury instruction on unwitting possession

that creates an inconsistency that misstates the law, prejudice is presumed, even where the jury

was also properly instructed that the State carries the burden of proof. Id. at 718. “If the

inconsistency results from a clear misstatement of the law, the misstatement is presumed to have

misled the jury in a manner prejudicial to the defendant.” Id. Here, the unwitting possession

instruction presented an inconsistency to the jury because it placed the burden on Kyllo to prove

his state of mind by a preponderance of the evidence. The unwitting possession instruction misled

the jury as to who had the burden to prove Kyllo’s state of mind. Although there was ample

evidence that drugs and paraphernalia were in the hotel room and in the bag that Kyllo threw out

the window, I would not conclude that there was enough evidence that the controlled substances

belonged to Kyllo, rather than the others present in the hotel room, to overcome the presumption

of prejudice established in Carter.

       I would accept the State’s concession and conclude that it was ineffective assistance of

counsel for defense counsel to seek an unwitting possession instruction where Kyllo was charged

solely with possession of a controlled substance with intent to deliver. The direction to the jury



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that Kyllo had a burden to prove his state of mind was fundamentally inconsistent with the State’s

burden to prove intent to deliver beyond a reasonable doubt. The State has not overcome the

resulting presumption of prejudice. I would therefore reverse. Kyllo is entitled to a new trial

where the State’s burden of proof is clearly presented to the jury without contradiction.



                                                     ____________________________________
                                                     Glasgow, J.




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