      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                            DIVISION ONE

                    Respondent,                 No. 71644-1-1


        v.                                      UNPUBLISHED OPINION

CHARLES LONGSHORE,

                    Appellant.                  FILED: June 16, 2014


      Dwyer, J. — Charles Longshore led police on a high speed chase after he
threatened to kill a man who had temporarily prevented Longshore from leaving a

housing complex in Shelton, Washington. Once Longshore was apprehended, a
search of the vehicle he was driving revealed a pipe containing

methamphetamine residue. Subsequently, he was charged with felony
harassment, attempting to elude a pursuing police vehicle, and unlawful
possession of a controlled substance. At trial, the court determined that, if
Longshore chose to testify, a security officer would be stationed atan exit near
the witness stand during Longshore's testimony. Longshore did not testify and
he was convicted on all counts.

       On appeal, he raises a number of challenges to the trial court
proceedings. He argues that his right to testify was violated, that no valid waiver
of his right was secured, and that his counsel prevented him from testifying.
No. 71644-1-1/2



Additionally, he claims that his counsel was ineffective, and that the State failed

to present sufficient evidence to convict him as to the harassment and the

unlawful possession charges. None of his arguments persuade us that he is

entitled to appellate relief. Accordingly, we affirm his convictions.

                                           I


       On March 25, 2012, Longshore arrived at the Firwood Gardens complex in

Shelton, Washington. Longshore was driving a "goldish-beige" Dodge Intrepid,

which had tinted windows and a small sticker with feathers on it. Although the

vehicle was registered in someone else's name, Longshore had been seen

driving the Intrepid into Firwood Gardens on more than one occasion.

       Charles Aldridge, a resident of Firwood Gardens, had previously told

Longshore not to return to the property, and Justin Elston, also a resident,

indicated that Longshore had stolen property from Firwood Gardens residents.

On this particular day, after Longshore again entered Firwood Gardens, Elston

positioned his own vehicle in such a way so as to prevent Longshore from driving

away. Elston did this in an effort to detain Longshore. The police were then

called. In response to being blocked in, Longshore threatened Elston and other

neighbors nearby, claiming that he had a gun and that he would kill every one of

them and their families. He also made threatening gestures, including reaching

into his pocket and into his vehicle. Fearing that Longshore would carry out his

threats, Elston moved his own vehicle and allowed Longshore to drive away. At

least one female passenger was in the Intrepid with Longshore when he left.

       Officer Daniel Patton of the Shelton Police Department received a

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dispatch regarding the Firwood Gardens incident. Shortly thereafter, Patton

learned that a fellow officer had contacted or attempted to contact the Intrepid.

Rather than stop, the Intrepid had eluded the officer and the officer was in

pursuit. After listening to the radio traffic, Patton determined that the fleeing

Intrepid could be headed for an intersection with which he was familiar. Patton

drove to the intersection and placed spike strips on the street. However, after

one of the pursuing officers mistakenly said that the Intrepid was traveling in the

opposite direction, Patton removed the spike strips and placed them in his trunk.

As soon as Patton had closed his trunk, the fleeing Intrepid drove by him with

police cars in pursuit. However, as the Intrepid slowed to make a turn, Patton

was able to recognize Longshore as the driver of the vehicle. Patton testified

that he had "dealt with" Longshore in the past, involving "numerous contacts" with

him.

       Deputy Trevor Clark of the Mason County Sherriff's Office also identified

Longshore during the pursuit. Clark was directly behind Longshore and was able
to see Longshore's face in the rearview mirror of the Intrepid when Longshore

slowed to make a turn.

       Patton temporarily lost sight of the Intrepid during the pursuit, but again

observed the vehicle and its driver some time later. This time, however, his

observations "were not as good 'cause I'm physically in my vehicle, the vehicle's

coming at me. And it was—it was rather quick, Ijust wasn't as close." Patton
observed that the driver was now wearing some kind of dark hooded sweater or

jacket. Patton's vehicle then became the lead police car in pursuit of the Intrepid.
                                         -3-
No. 71644-1-1/4



However, as the pursuit entered a residential neighborhood where children were

present, Patton slowed his patrol car to 30 miles per hour and turned off his lights

and siren. Although the Intrepid did not slow down, Patton could see the

direction in which it was headed.

       A short time later, the police discovered the Intrepid at the end of a rural

road. Longshore and two women were found near the car—hiding behind a

shed—and were taken into custody.

       A search of the Intrepid revealed a pipe containing unburned

methamphetamine, which was found in a sock stuck between the driver's door

and the driver's seat.


       Patricia Pena, a passenger in the Intrepid, provided a different version of

the events. She testified that after Longshore drove away from Firwood

Gardens, they stopped at a store called Tozier's. She testified that they picked

up Ty Cuzick—her ex-boyfriend at the time that she testified—in the Tozier's

parking lot and that Cuzick climbed into the driver's seat, while Longshore moved

to the front passenger seat. Pena claimed that Cuzick was driving the Intrepid

during the period of time when it was being pursued by the police.

       Glenn Probst, who lived near the area where the Intrepid stopped and

where Longshore was apprehended, testified that he observed, from some

distance away, the driver of the Intrepid—who was wearing a brown jacket—exit

the vehicle and flee the scene. Probst further testified that a man in a white T-

shirt exited the right front passenger-side door, along with two females who

exited from the rear doors, and then all three were detained by the police. Probst

                                         -4-
No. 71644-1-1/5



did not see the driver of the vehicle again.

       Longshore was charged with felony harassment, attempting to elude a

pursuing police vehicle, and unlawful possession of a controlled substance.

During Longshore's jury trial, Officer Newell of the Mason County jail expressed a

security concern that could arise in the event that Longshore decided to testify.

In the particular courtroom in which the trial was taking place, there was an exit

door behind the witness box and the witness box was only 4 or 5 feet away from

the jury box. Based on the layout of the courtroom, Officer Newell wanted to

place a security officer at the exit door. Longshore's attorney objected to this

proposed arrangement, arguing that having a security officer posted "essentially

next to" Longshore would be prejudicial. The prosecutor did not present any

argument, instead deferring to the court. The court then stated the following on

the record:


       The issue before the Court is what type of restraints—security
       should be on a defendant in a jury trial. This is a case that is an
       eluding, a harassment and a possession of a controlled substance.
       However Mr. Longshore is also held on another set of charges,
       which are aggravated murder.
                Currently, in this trial Mr. Longshore has been unrestrained
       at the table, but there has been the presence of three officers from
       the jail. . . .
               There has been a request made that if Mr. Longshore
       testifies that the officer then be placed behind him when Mr.
       Longshore is in the [witness] box. . . . When he's in the witness
       box, to put an officer behind him that is between him and the jury
       box.

                A court has to weigh the issue of whether or not the
       appearance of having an officer there would be prejudicial to the
       defense in that it makes it more apparent to the jury that Mr.
       Longshore is quote, in custody, for the purposes of how that would
No. 71644-1-1/6



       affect them in rendering—in deliberating on their verdict versus the
       need for security with an individual who, although this particular
       case involves an eluding, which is less serious, an eluding does
       mean a flight risk, because that's essentially what eluding is; you're
       eluding a police officer. So the Court has originally found probable
       cause to believe there's a reason Mr. Longshore would flee, that's
       what this charge is. In addition, there would also—there's also the
       other charges Mr. Longshore is being held on.

       Longshore's counsel subsequently informed the trial court that Longshore

would not testify: "Mr. Longshore and I have discussed his right to testify. He

indicates that he . . . would prefer to testify, but on my advice will not testify." His

counsel then invited the court to engage in a colloquy with Longshore on the

record, but the court refused to do so. His counsel then stated, "I have made it

clear to him that it is his right, and nobody—the Court, myself—nobody can take

away that right. But on my advice, he will choose not to testify."

       Following a jury trial, Longshore was convicted on all counts. He appeals.

                                           II


       Longshore first contends that his right to testify was violated. This

violation occurred, he avers, when the trial court ruled that it would post a

courtroom security officer at a door near the witness stand if Longshore testified.

Longshore argues on appeal that this measure would have been inherently

prejudicial. We disagree.

       "[Tjrial management decisions" are reviewed "for abuse ofdiscretion."
State v. Jaime, 168 Wn.2d 857, 865, 233 P.3d 554 (2010). "'A trial judge must

exercise discretion in determining the extent to which courtroom security

measures are necessary to maintain order and prevent injury.'" Jaime, 168
No. 71644-1-1/7



Wn.2d at 865 (quoting State v. Hartzoq, 96 Wn.2d 383, 400, 635 P.2d 694

(1981)).

       "'When a courtroom arrangement is challenged as inherently prejudicial,

the question to be answered is whether an unacceptable risk is presented of

impermissible factors coming into play.'" Jaime, 168 Wn.2d at 862 (quoting In re

Pers. Restraint of Woods, 154Wn.2d400, 417, 114 P.3d 607 (2005)). "A

courtroom practice might present an unacceptable risk of impermissible factors

coming into play because of 'the wider range of inferences that a juror might

reasonably draw' from the practice." Jaime, 168 Wn.2d at 862 (quoting Holbrook

v. Flvnn, 475 U.S. 560, 569, 106 S. Ct. 1340, 89 L. Ed. 2d 525 (1986)).

              In Holbrook. the Court considered whether the presence of
       security guards in the courtroom was inherently prejudicial. Id. at
       568-69. Preliminarily, the Court did not focus its inquiry on the
       particular arrangement of the guards at Holbrook's trial. Id
       Instead, it considered whether the presence of security guards in
       generalwas inherently prejudicial, jd. In concluding itwas not, the
       Court found it significant that "[o]ur society has become inured to
       the presence of armed guards in most public places; they are
       doubtless taken for granted so long as their numbers or weaponry
       do not suggest particular official concern or alarm." jd. at 569.

Jaime, 168 Wn.2d at 863. However, the Holbrook Court did not foreclose the

possibility that, under certain circumstances, deployment of security guards could
violate a defendant's constitutional right to receive a fair trial: "In view of the

variety of ways in which such guards can be deployed, we believe that a case-

by-case approach is more appropriate." 475 U.S. at 569.

       In Holbrook, the respondent claimed that he was prejudiced by the

placement offour uniformed state troopers in the first row ofthe courtroom's
No. 71644-1-1/8



spectator section at his trial. 475 U.S. at 570-71. The United States Supreme

Court disagreed, concluding that, "we simply cannot find an unacceptable risk of

prejudice in the spectacle of four such officers quietly sitting in the first row of a

courtroom's spectator section" and that "[f]our troopers are unlikely to have been

taken as a sign of anything other than a normal official concern for the safety and

order of the proceedings." Holbrook, 475 U.S. at 571.

       Contrary to Longshore's contention, the guard's presence at the nearby

door would not have been inherently prejudicial had Longshore testified. One

security guard posted by a door would be unlikely to have been taken as a sign

of anything other than a normal official concerned for the safety and order of the

proceedings. This is particularly evident when, as in this case, three officers had

already been present in the courtroom throughout the trial. Although Longshore

expresses concern for the guard's placement between the witness stand and the

jury box, the guard would have been set back at least several feet behind the

witness stand and away from the jury box and, by all appearances, would have

quite clearly been guarding the door. Inherent prejudice does not follow from

such an arrangement.

       Nevertheless, Longshore contends that the trial court was required to

make a record of a compelling individualized threat posed by Longshore,

meaning that there had to be "evidence which indicates that the defendant poses

an imminent risk of escape, that the defendant intends to injure someone in the

courtroom, or that the defendant cannot behave in an orderly manner while in the

courtroom." State v. Finch, 137 Wn.2d 792, 850, 975 P.2d 967 (1999).

                                          -8-
No. 71644-1-1/9



Longshore's reliance on Finch is misplaced. The defendant in that case was

shackled during the trial and sentencing, and such physical restraint during trial is

inherently prejudicial. See, e^, Jaime, 168 Wn.2d at 862 n.3. Where, as here,

security measures are not inherently prejudicial, it is not incumbent upon the trial

court to make a record of a compelling individualized threat. Given that

Longshore was charged with eluding a police officer—as well as the murder

charges in a different case—which tended to show that Longshore was a flight

risk and that he was not a person who obeys court orders,1 the trial court

exercised its discretion judiciously.2

                                                  Ill


         Longshore next contends that the trial court failed to complete its basic
responsibility to determine that Longshore validly waived his right to testify. This
failure occurred, Longshore avers, when the trial court refused to engage in a

colloquy with Longshore to determine whether he had voluntarily waived his right

to testify. We disagree.

         Our Supreme Court has held that the United States Constitution imposes

no obligation on trial judges to inform defendants ofthe right to testify. State v.
         1The court order being that he notengage in any criminal behavior while on release
awaiting trial.
         2Longshore's contention that the court should have considered viable alternatives is
unavailing. As an initial matter, the trial court exercised its discretion, meaning that regardless of
whether viable alternatives existed, we will not question its selection of one of those alternatives.
Moreover, the alternatives suggested by Longshore, which included hidden restraints, electrical
belt devices, or locking the exit door near the witness stand, must only be considered before
ordering physical restraints. State v. Thompson, 169 Wn. App. 436, 470, 290 P.3d 996 (2012),
review denied, 176 Wn.2d 1023 (2013). Thethrust ofthis requirement is, again, tethered to the
notion that inherently prejudicial security measures must be imposed only after adhering to a well-
delineated procedure. There was no inherent prejudice from the security measure imposed here.
Thus, the trial court did not need to adhere to the procedure outlined in cases such as Jaime and
Finch.
No. 71644-1-1/10



Thomas, 128 Wn.2d 553, 558-59, 910 P.2d 475 (1996). Furthermore, although

"the waiver of the right to testify must be knowing," it does not follow "that the trial

court must obtain an on-the-record waiver of the right." Thomas. 128 Wn.2d at

559. "[A] defendant is not deprived of his constitutional right to testify merely

because the trial court does not inform him of the existence of that right—it is the

responsibility of defense counsel to inform the defendant of the right to testify."

State v. O'Cain. 169 Wn. App. 228, 244, 279 P.3d 926 (2012). Moreover, "there

is no requirement of a colloquy on the record to protect the state constitutional

right to testify in one's behalf." State v. Russ, 93 Wn. App. 241, 243, 969 P.2d

106(1998).

       In essence, Longshore argues that his counsel's invitation to the trial court

to engage in a colloquy with Longshore precluded it from presuming that

Longshore had voluntarily waived his right. However, Longshore's counsel

explicitly represented to the trial court that it was made clear to Longshore that

only he could waive his right to testify and that Longshore—on the advice of his

counsel—had, in fact, waived that right.

       Mr. Longshore and I have discussed his right to testify. He
       indicates that... he would prefer to testify, but on my advice will
       not testify. And ifthe Court wishes to engage in a colloquy with him
       to ensure that it's knowingly, voluntarily and intentionally—decision
       was made under those circumstances, I would invite that to
       complete the record.. . .
       And I have made it clear to him that it is his right, and nobody—the
       Court, myself—nobody can take away that right. But on my advice,
       he will choose not to testify.

       Defense counsel's invitation to engage in a colloquy with Longshore does


                                           10
No. 71644-1-1/11



not cast doubt upon the voluntariness of Longshore's waiver. The requirement of

voluntariness is meant to thwart coercion, not to enshrine the initial preferences

of criminal defendants. Although Longshore's preference may have been to

testify on his own behalf, after conferring with his counsel, he voluntarily waived

that right. Thomas requires no further inquiry. Indeed, Thomas cautions against

engaging in a colloquy with the defendant, explaining that it "might have the

undesirable effect of influencing the defendant's decision not to testify." 128

Wn.2d at 560. "As a result, courts rely upon defense counsel to inform the

defendant of his constitutional right to testify." Thomas, 128 Wn.2d at 560. Here,

defense counsel quite clearlydid inform Longshore of his right to testify. Hence,

the trial court acted prudently by refusing to engage in a colloquy with Longshore.

                                            IV


       Longshore next contends that his counsel prevented him from testifying
and asks either that a reference hearing be held or a new trial be ordered.

However, he fails to present substantial factual evidence to support his claim

and, thus, his contention is unavailing.

       After trial, a silent defendant may assert a claim that his attorney
       prevented him from testifying. See fin re Pers. Restraint ofl Lord,
       123 Wn.2d [296,] 317 [868 P.2d 835 (1994)]: accord Underwood v.
       Clark, 939 F.2d 473, 476 (7th Cir. 1991): contra United States v.
       McMeans. 927 F.2d 162, 163 (4th Cir. 1991) (holding that the
       defendant "can not now approach the court and complain of the
       result of his decision"). The defendant must, however, produce
       more than a bare assertion that the right was violated; the
       defendant must present substantial, factual evidence in order to
       merit an evidentiary hearing or other action. Accord Underwood,
       939 F.2d at 476 (rejecting a claim in which a defendant failed to
       produce more than "a bare, unsubstantiated, thoroughly self-
       serving, and none too plausible statement that his lawyer (in

                                           -11 -
No. 71644-1-1/12



      violation of professional standards) forbade him to take the stand").

Thomas. 128 Wn.2d at 561.

      In Thomas, our Supreme Court concluded that when the defendant was

present during the court's questioning of defense counsel and where his counsel

claimed that he had discussed the choice with the defendant and had informed

him that it was the defendant's decision, the defendant's failure to provide any

factual evidence that his counsel had prevented him from testifying precluded

him from obtaining relief. 128 Wn.2d at 561. As in Thomas, Longshore was

present when his counsel told the court that counsel had discussed the choice

with Longshore and had informed him that it was his decision. As in Thomas,

there is no indication from the record that Longshore disagreed with his counsel

or that he attempted to assert his right to testify. Moreover, Longshore's

averment on appeal that he was prevented from testifying is unsubstantiated. He

argues that his trial counsel's declaration in support ofthe motion for a new trial
substantiates his claim; however, that declaration merely states that Longshore

chose not to testify. It does not corroborate Longshore's version of events.

Longshore is not entitled to a reference hearing or to a new trial.

                                         IV


       Longshore next contends that his trial counsel rendered ineffective

assistance. This occurred, he asserts, when his counsel refused the trial court's

offer of an "unwitting possession" jury instruction. We disagree.

       "In order to prevail on a claim of ineffective assistance of counsel,"
Longshore "must demonstrate (1) deficient performance, that his attorney's
                                        -12-
No. 71644-1-1/13



representation fell below the standard of reasonableness, and (2) resulting

prejudice that, but for the deficient performance, the result would have been

different." State v. Hassan, 151 Wn. App. 209, 216-17, 211 P.3d 441 (2009)

(citing Strickland v. Washington. 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed.

2d 674 (1984)). "In evaluating an ineffective assistance of counsel claim, this

court "must begin with 'a strong presumption counsel's representation was

effective' and must base its determination on the record below." In re Pers.

Restraint of Hutchinson. 147 Wn.2d 197, 206, 53 P.3d 17 (2002) (quoting State

v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995)). "The defendant

alleging ineffective assistance of counsel 'must show in the record the absence

of legitimate strategic or tactical reasons supporting the challenged conduct by

counsel.'" Hutchinson. 147 Wn.2d at 206 (quoting McFarland, 127 Wn.2d at

336). "[Deliberate tactical choices may constitute ineffective assistance of

counsel if they fall outside the wide range of professionally competent

assistance." In re Pers. Restraint of Davis, 152 Wn.2d 647, 714, 101 P.3d 1

(2004).

       "The State has the burden of proving the elements of unlawful possession

of a controlled substance as defined in the statute—the nature of the substance

and the fact of possession." State v. Bradshaw, 152 Wn.2d 528, 538, 98 P.3d
1190 (2004). "Defendants then can prove the affirmative defense of unwitting

possession." Bradshaw, 152 Wn.2d at 538. Defendants have the burden to

prove by a preponderance of the evidence that the controlled substance was

possessed unwittingly. State v. Riker. 123 Wn.2d 351, 368, 869 P.2d 43 (1994).

                                       -13-
No. 71644-1-1/14



        A review of the record indicates that defense counsel's decision not to

accept an unwitting possession instruction was a legitimate trial tactic.

Longshore's theory at trial was that he was not the owner or the driver of the

Intrepid. Had his counsel elected to include an unwitting possession instruction,

the affirmative defense would have been incongruous with his other theory—

unwitting possession concedes the concept of dominion and control, which is

what Longshore argued he did not exercise over the Intrepid. By pursuing a

theory based on unwitting possession, Longshore would have unnecessarily

risked confusing the jury with distinct burdens of proof and would have caused

him to assume a burden of proof, rather than forcing the State to meet its burden.

Longshore's defense counsel's tactical decision to put the State to its burden of

proving possession was reasonable and his performance, therefore, was not

deficient.3

                                                 V


        Longshore next contends that the State failed to present sufficient

evidence to support his conviction of felony harassment. This is so, he avers,

because the State failed to prove beyond a reasonable doubt that he threatened




       3 In a statement of additional grounds (SAG), Longshore argues that his defense counsel
rendered ineffective assistance. This is so, he asserts, because counsel failed to assert self-
defense to the charge of felony harassment but went on to argue the lawful authority of that
threat. Longshore's assertion is unavailing. A review of the record reveals that his counsel did
not argue that the threat was lawfully made. Instead, counsel argued that the State had failed to
prove beyond a reasonable doubt that a credible threat had been made. We do not question
defense counsel's tactical decision to pursue this theory, particularly given that the State was
required to prove beyond a reasonable doubt that Longshore acted without lawful authority.

                                               -14-
No. 71644-1-1/15



Justin Elston4 without lawful authority.5 We disagree.

       "'It is a fundamental precept of criminal law that the prosecution must

prove every element of the crime charged beyond a reasonable doubt.'" State v.

Williams, 136 Wn. App. 486, 492-93, 150 P.3d 111 (2007) (quoting State v.

Brown, 147 Wn.2d 330, 339, 58 P.3d 889 (2002)). "If a statute indicates an

intent to include absence of a defense as an element of the offense, or the

defense negates one or more elements of the offense, the State has a

constitutional burden to prove the absence of the defense beyond a reasonable

doubt." State v. Lively, 130Wn.2d 1, 11,921 P 2d 1035 (1996): see also State v.

Hickman, 135 Wn.2d 97, 102, 954 P.2d 900 (1998) ("[T]he State assumes the

burden of proving otherwise unnecessary elements ofthe offense when such
added elements are included without objection in the 'to convict' instruction.").

        "A claim of insufficiency admits the truth of the State's evidence and all
inferences that reasonably can be drawn therefrom." State v. Salinas, 119
Wn.2d 192, 201, 829 P.2d 1068 (1992). "In determining the sufficiency ofthe
evidence, circumstantial evidence is not to be considered any less reliable than
direct evidence." State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).


        4Longshore also claims that insufficient evidence was presented that he threatened
"Aldridge," presumably referring to Charles and Judith Aldridge. However, the State did not
charge Longshore with harassment toward the Aldridges and the jury instructions made no
mention of them.
         5Longshore asserts that the trial court's definition of "without lawful authority" contained
within the jury instructions failed to give the jury any guidance as to how the State could prove
thatelement. This error, he claims, denied him due process of law. However, because this claim
of error was not presented to the trial court and because any possible error would not be of
constitutional magnitude, we do not consider it on appeal. "As long as the instructions properly
inform the jury of the elements of the charged crime, any error in further defining terms used in
the elements is not ofconstitutional magnitude." State v. Stearns. 119 Wn.2d 247, 250, 830 P.2d
355 (1992); see also RAP 2.5(a).

                                                -15-
No. 71644-1-1/16



"Deference must be given to the trier of fact who resolves conflicting testimony

and evaluates the credibility of witnesses and persuasiveness of material

evidence." State v. Carver, 113 Wn.2d 591, 604, 781 P.2d 1308, 789 P.2d 306

(1989).

      The State charged Longshore with one count of felony harassment,

alleging that Longshore

       knowingly and without lawful authority, did threaten to kill another
       immediately or in the future, to wit: Justin Elston, and by words or
       conduct placed the person threatened in reasonable fear that the
       threat would be carried out; contrary to RCW 9A.46.020(1)(a)(i) and
          (2)(b) and against the peace and dignity of the State of
          Washington.

With respect to the harassment charge, the jury was instructed as follows:
                A person commits the crime of harassment when he or she,
          without lawful authority, knowingly threatens to cause bodily injury
          immediately or in the future to another person, and when he or she,
          by words or conduct, places the person threatened in reasonable
          fear that the threat will be carried out and the threat to cause bodily
          harm consists of a threat to kill the threatened person or another
          person.

Jury Instruction 11. The jury was further instructed that "[a] person acts without
lawful authority when that person's acts are not authorized by law." Jury

Instruction 14.

          Longshore avers that the State's evidence was insufficient to establish
that he acted without lawful authority because Elston could have been charged
with unlawful imprisonment, and Longshore's use offorce was reasonable.
Without deciding whether Longshore is correct in his contention that Elston could
have been charged with unlawful imprisonment, the record indicates quite clearly

                                             16
No. 71644-1-1/17



that the degree of force used by Elston to prevent Longshore from driving away

was minimal. He made no attempt to physically harm Longshore or any of

Longshore's property. Nevertheless, Longshore threatened to kill Elston if he did

not move his vehicle.

      "[T]he degree of force used in self-defense is limited to what a reasonably

prudent person would find necessary under the conditions as they appeared to

the defendant." State v. Walden. 131 Wn.2d 469, 474, 932 P.2d 1237 (1997).

"Deadly force may be used only in self-defense if the defendant reasonably
believes he or she is threatened with death 'or great personal injury.'" Walden,

131 Wn.2d at 474 (quoting 13A Royce A. Ferguson, Jr. &Seth Aaron Fine,

Washington Practice: Criminal Law § 2604, at 351 (1990)). "Threats of bodily

injury also lawfully may be made when circumstances justify violent action in self-
defense." State v. Smith. 111 Wn.2d 1, 9, 759 P.2d 372 (1988).

        Longshore's threat was not authorized by law. Elston made no attempt
to harm Longshore's person or property and gave no reason for Longshore to
react as he did. Longshore's response to Elston's maneuver that blocked his
vehicle was disproportionate and unreasonable. It was not a harmless "ruse," as
he attempts to characterize it on appeal. The evidence was that Longshore
threatened to kill Elston and reached into his car as if he was getting a gun.

Sufficient evidence was admitted at trial to establish beyond a reasonable doubt

that Longshore acted without lawful authority. Hence, we grant no appellate




                                         17
No. 71644-1-1/18



relief to Longshore with respect to his felony harassment conviction.6

                                                VI


        Longshore next contends that the State presented insufficient evidence to

support his conviction of unlawful possession of a controlled substance. This is

so, he asserts, because insufficient evidence was presented that he exercised

dominion and control over the Intrepid in which the controlled substance was

discovered. We disagree.

        As observed, "[a] claim of insufficiency admits the truth of the State's

evidence and all inferences that reasonably can be drawn therefrom." Salinas.

119 Wn.2d at 201. "Deference must be given to the trier of fact who resolves

conflicting testimony and evaluates the credibility of witnesses and

persuasiveness of material evidence." Carver, 113 Wn.2d at 604.

        "Possession . . . may be either actual or constructive." State v. Callahan,

77 Wn.2d 27, 29, 459 P.2d 400 (1969). Constructive possession of drugs

requires that a person exercise dominion and control over the drugs or the

premises where the drugs are found. Callahan, 77 Wn.2d at 29-30; see also

State v. George, 146 Wn. App. 906, 920, 193 P.3d 693 (2008) ("An automobile


         6 In a SAG, Longshore contends that the State presented insufficient evidence to support
his felony harassment conviction. This is so, he avers, because the State did not present
evidence that the victim was placed in reasonable fear that Longshore's threat would actually be
carried out.
       "In order to convict an individual of felony harassment based upon a threat to kill, RCW
9A.46.020 requires that the State prove that the person threatened was placed in reasonable fear
that the threat to kill would be carried out as an element of the offense." State v. C.G., 150 Wn.2d
604, 612, 80 P.3d 594 (2003). The State offered evidence that Longshore threatened Elston and
neighbors nearby, claiming that he had a gun and that he would kill every one of them and their
families. He also made threatening gestures, including reaching into his pocket and into his
vehicle. This evidence was sufficient to establish a reasonable fear that Longshore would carry
out his threats. No appellate relief is warranted.

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may be considered a 'premises.'"). Proximity alone, without proof of dominion

and control, is insufficient to establish possession. State v. Raleigh. 157 Wn.

App. 728, 737, 238 P.3d 1211 (2010).

       In support of his contention, Longshore argues that he "did not own the

vehicle in which the drugs were found" and that "the record indicated that Mr.

Cuzick was both the driver and owner of the Dodge." Conflicting evidence was

presented on these points during the trial. Given that Longshore challenges the

sufficiency of the evidence, our review credits the truth of the State's evidence.

       The State offered testimony that Longshore was the driver of the Intrepid

during the police pursuit and that Longshore had been seen driving the Intrepid
before the pursuit, suggesting that he had been in possession ofthe vehicle for
some time. Furthermore, the State offered testimony that methamphetamine

was found between the driver's seat and the driver's door. The evidence offered

by the State was sufficient to establish that Longshore exercised dominion and
control over the vehicle in which the methamphetamine was found.7 Longshore's

contentions to the contrary go to the weight ofthe evidence. No appellate relief

is warranted.

                                              VII


       Longshore makes several contentions that were not made by his attorney
on appeal. However, they are unavailing.

       Longshore first contends that he was denied due process of law. This is

       7In a SAG, Longshore also argues that the State presented insufficient evidence that he
exercised dominion and control. We reject his duplicative argument.

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so, he contends, because a probable cause determination as to the count of

felony eluding was not made within 48 hours after arrest or at any point before

trial. Review of the transcript reveals that the trial court did find probable cause

as to the count of eluding prior to Longshore's trial, and that probable cause was

found as to the felony harassment count within 48 hours of Longshore's arrest,

thus authorizing his continued detention, subject to conditions of release. See

CrR 3.2. Longshore's contention does not provide a basis for appellate relief.

       Longshore next contends that prosecutorial misconduct occurred during

closing statements. This occurred, he argues, when the prosecutor improperly

commented on the defense's failure to question Patricia Pena regarding the

felony harassment charge, thereby shifting the burden of proof. Although

Longshore does not cite to the record, presumably he is referring to the

prosecutor's following statement made during rebuttal: "You'll notice that

[defense] counsel skipped over when she was on the stand what happened

during the harassment. She was never asked about that, even though she was

there." Longshore did not object to this statement.

       "In order to prevail on a claim of prosecutorial misconduct, a defendant is

required to show that in the context of the record and all of the circumstances of

the trial, the prosecutor's conduct was both improper and prejudicial." In re Pers.

Restraint of Glasmann, 175 Wn.2d 696, 704, 286 P.3d 673 (2012). If the

defendant fails to object at trial, complained of error is waived unless the

defendant "establishes that the misconduct was so flagrant and ill intentioned

that an instruction would not have cured the prejudice." Glasmann. 175 Wn.2d at

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704.


       "Shifting the burden of proof to the defendant is improper argument, and

ignoring this prohibition amounts to flagrant and ill-intentioned misconduct."

Glasmann, 175 Wn.2d at 713. "Misstating the basis on which a jury can acquit

insidiously shifts the requirement that the State prove the defendant's guilt

beyond a reasonable doubt." Glasmann. 175 Wn.2d at 713.

       The prosecutor's comment here was not improper. He observed that

defense counsel did not question Pena about the incident upon which the felony

harassment charge was based. However, the prosecutor did not improperly

argue or imply that this failure to question was a basis for the juryto convict on

that count. No prosecutorial misconduct occurred. Even if it had, a timely

objection and curative instruction would have cured any prejudice. Glasmann,

175Wn.2dat704.


       Affirmed.




We concur:




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