                                                                         FILED
                                                                       APRIL 3, 2018
                                                               In the Office of the Clerk of Court
                                                              WA State Court of Appeals, Division III




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

STATE OF WASHINGTON,                         )
                                             )        No. 34881-4-111
                    Respondent,              )
                                             )
      v.                                     )
                                             )
T01111Y D. CANFIELD,                         )        UNPUBLISHED OPINION
                                             )
                    Appellant.               )

      KORSMO, J.   -Tommy Canfield appeals his convictions for unlawful possession

of a firearm, possession of a stolen firearm, possession of methamphetamine with a

firearm enhancement, and obstructing a public servant. We reverse the last charge,

affirm the remaining convictions, and remand for further proceedings.

                                         FACTS

      Mr. Canfield was arrested in the town of Asotin on the basis of an outstanding

arrest warrant. Law enforcement officers saw Mr. Canfield lying down inside his pickup

truck when they made contact to arrest him on the warrant. One officer called out

"Tommy" and Mr. Canfield sat up. He attempted to start the truck despite an officer's

direction to keep his hands in sight. He then attempted to leave the truck and was

detained.
No. 34881-4-111
State v. Canfield


       The officers sought verification of his identity, but Mr. Canfield provided a false

name and denied that he was Tommy Canfield. Officers eventually identified him, after

checking with dispatch, through his tattoos. When an officer tried to handcuff him prior

to removing him from the scene, Mr. Canfield temporarily delayed the process by locking

his hands in an effort to prevent the handcuffing. He was then placed in a patrol car

without first being searched.

       During the drive to the jail, Mr. Canfield was repeatedly moving around and

"squirming" in the back seat to the point that he was told to sit still because the officer

feared he was attempting to release his seatbelt or the handcuffs. He continued his

movements, attempting to get his hands in his back pockets, even after arriving at the jail.

Officers then searched his pockets and discovered two packets of suspected controlled

substances. They also discovered eight gun cartridges in his front pockets. He denied

having a gun and insisted that he had the ammunition for an unspecified different reason.

When the officer checked the back seat of the patrol vehicle, she discovered a "very

large" and fully loaded .357 Colt Python revolver underneath the divider between the

front and rear seats.

       The gun's owner later identified it as one stolen from his home. Officers unloaded

the gun and placed all 14 shells in a single bag. They testified that the bullets found in

Mr. Canfield's pockets were identical to those removed from the gun.



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No. 34881-4-111
State v. Canfield


       The case went to jury trial. The officer testified that she always searched the

vehicle before her shift and again whenever an arrestee leaves the vehicle. The gun was

not present before Mr. Canfield was placed in her car. The court denied motions to

dismiss the stolen firearm and obstructing charges for insufficient evidence. The

defendant did not testify and the defense called no witnesses. The prosecutor suggested

that the court instruct the jury that it could not consider the defendant's failure to testify.

However, defense counsel objected and the prosecutor acceded to that decision. The

court did not instruct the jury on that topic. The parties stipulated to the instructions

given by the court.

       In closing argument, the prosecutor twice postulated possible defense arguments

and noted that no testimony had been presented in support of either one. In closing,

defense counsel made a "mystery bullet" argument, speculating that there might have

been a mix-up resulting in a mystery bullet being removed from evidence and placed

elsewhere. After noting in rebuttal that no evidence supported the theory, the prosecutor

also pointed out that no explanation was given for the matching bullets found in Mr.

Canfield's pockets. After again suggesting some possibilities, the prosecutor once more

stated that jurors had heard no other explanation at trial.

       The prosecutor told jurors that Canfield obstructed a public servant in three

different ways-lying about his identity, trying to hide the evidence, and resisting

handcuffing. Report of Proceedings at 275. Defense counsel denied that the actions

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No. 34881-4-111
State v. Canfield


amounted to obstruction. In rebuttal, the prosecutor insisted that there were three

separate actions that constituted obstructing. Id. at 291-292.

       The jury returned verdicts of guilty on all four charges and also found a firearm

enhancement on the controlled substance charge had been proven. In a separate hearing,

the jury then heard evidence on an aggravating factor and concluded that each of the

three felony offenses had been committed shortly after release from prison. At

sentencing, the State calculated the offender score at 13 on the methamphetamine charge

due to 10 prior felony convictions, 2 points for the other current convictions, and 1 point

for being on community custody at the time of the new crimes. The prosecutor also

posited a score of 12 for the weapons offenses. Defense counsel told the court that he

agreed with the prosecutor's computation of the standard ranges for each offense.

       The prosecutor sought an exceptional sentence by having all three felony offenses

run consecutively to each other, and also noted that the firearm enhancement would run

consecutively by law. Defense counsel argued against an exceptional sentence. The trial

court imposed an exceptional sentence by running the two weapons offenses concurrent

with each other, but consecutive to the controlled substance conviction. All time served

prior to sentencing was applied to the obstructing count, which also was consecutive to

the other sentences.

       The court heard from Mr. Canfield that he had trained horses since he was 15.

The court imposed standard mandatory legal financial obligations (LFOs), assessed a

                                             4
No. 34881-4-111
State v. Canfield


$2,000 drug fine, and imposed discretionary LFOs totaling $1,010 for service fees and

public defense costs.

       Mr. Canfield timely appealed to this court. A panel considered the matter without

hearing argument.

                                       ANALYSIS

       This appeal presents numerous issues which we address in a different order than

raised by appellant. In order, we consider whether the prosecutor committed misconduct

in closing argument, whether a nexus was established between the firearm and the drug

possession count, whether the offender score was properly calculated, whether there

needed to be a unanimity instruction on the obstructing count, whether the LFOs were

properly imposed, and whether appellate costs should be waived.

      Prosecutor's Closing Argument

       Mr. Canfield argues that the prosecutor violated his privilege to remain silent by

commenting on different possible defense theories that were not supported by the

evidence. Although the arguments did skate close to the line, there was no error.

      The standards governing this challenge are well settled. The appellant bears the

burden of demonstrating prosecutorial misconduct on appeal and must establish that the

conduct was both improper and prejudicial. State v. Stenson, 132 Wn.2d 668, 718, 940

P.2d 1239 (1997). Prejudice occurs where there is a substantial likelihood that the

misconduct affected the jury's verdict. Id. at 718-719. The allegedly improper

                                             5
No. 34881-4-III
State v. Canfield


statements should be viewed within the context of the prosecutor's entire argument,the

issues in the case,the evidence discussed in the argument, and the jury instructions. State

v. Brown, 132 Wn.2d 529,561,940 P.2d 546 (1997).

       Prosecutors can properly draw reasonable inferences from the evidence admitted

at trial and argue those inferences to the jury. State v. Hoffman, 116 Wn.2d 51,94-95,

804 P.2d 577 (1991); State v. Hale, 26 Wn. App. 211,216,611 P.2d 1370 (1980). The

prosecutor also can respond to the defense presentation and argue that the evidence does

not support the defendant's theory of the case. State v. Russell, 125 Wn.2d 24,87,882

P.2d 747 (1994). "Mere appeals to jury passion and prejudice, as well as prejudicial

allusions to matters outside the evidence,are inappropriate." State v. Belgarde, 110

Wn.2d 504,507,755 P.2d 174 (1988). However,the defendant must object to the

prosecutor's allegedly improper argument to preserve a claim of error unless the

argument was so "flagrant and ill intentioned that no curative instructions could have

obviated the prejudice." Id.

      It has long been the rule in this state that the prosecutor can argue "that certain

testimony is undenied,without reference to who may or may not be in a position to deny

it." State v. Litzenberger, 140 Wash. 308,311,248 P. 799 (1926). Prosecutors may also

comment on the defense's failure to present evidence on a particular issue if someone

other than the defendant could have testified to the issue. State v. Ashby, 77 Wn.2d 33,

38,459 P.2d 403 (1969).

                                             6
No. 34881-4-111
State v. Canfield


       Here, there were no objections raised at trial to the comments Mr. Canfield now

challenges. Hence, he can establish misconduct only if the remarks were so ill

intentioned that an objection could not have cured them. Belgarde, 110 Wn.2d at 507.

Mr. Canfield has not satisfied that demanding standard.

       First, it is important to note that the "mystery bullet" argument was created by the

defense in closing argument and the prosecutor was quite free to point out that no

evidence supported the claim. Russell, 125 Wn.2d at 87. A slightly different problem

exists with respect to the other arguments.

       In those instances, the prosecutor, without objection, speculated on certain

possibilities and pointed out that no evidence supported the claims. Although in each

instance that was a correct view of the evidence, it is still a potentially dangerous

argument for the prosecutor to make. The court may not give an instruction on an

affirmative defense over defendant's objection. E.g., State v. Coristine, 177 Wn.2d 370,

300 P.3d 400 (2013) (error to give reasonable belief instruction over defense objection).

Similarly, the State should not be suggesting defense arguments that the defense is not

itself proposing. This comes close to suggesting that the defendant had an obligation to

present evidence or argument; he does not. Here, no instructions were given and this

case does not arise to the level of the unwanted defense at issue in Coristine. Moreover,

a timely objection would have allowed the court to remind the jury that the defense bore



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No. 34881-4-111
State v. Canfield


no burden. If there was any error here at all, it simply was not so prejudicial that it could

not have been cured. 1

       Mr. Canfield has not established that the prosecutor's unchallenged arguments

amount to prejudicial error. The misconduct claim is without merit.

       Nexus between Firearm and Controlled Substances

       Mr. Canfield next argues that the prosecutor failed to establish a nexus between

the firearm and the controlled substances, thus contending that the firearm enhancement

was improper. Since the evidence suggested that Mr. Canfield actually possessed the gun

and the drugs at the same time, no nexus needed to be established.

       Whenever a firearm enhancement is based on constructive possession of the

weapon, there must be a showing of a nexus between the gun, the crime, and the

defendant. E.g., State v. Brown, 162 Wn.2d 422, 431-432, 173 P.3d 245 (2007); State v.

Schelin, 147 Wn.2d 562, 567-568, 55 P.3d 632 (2002). That rule does not apply to

situations of actual possession of a firearm during a crime. See State v. Hernandez, 172

Wn. App. 537, 544-545, 290 P.3d 1052 (2012), review denied, 177 Wn.2d 1022 (2013)

(discussing cases).




       1
        In light of the reversal of the obstructing count, comments by the prosecutor
concerning that offense need not be separately addressed here.

                                             8
No. 34881-4-III
State v. Canfield


       Here, the defendant had actual possession of the firearm and the drugs at the same

time-both items were on his person at the time he was placed in the police vehicle. The

State presented circumstantial evidence that Mr. Canfield actually possessed the gun

based on his movements during the ride and the subsequent discovery of the gun at his

feet. The trier of fact was permitted to infer actual possession of the gun and the drugs at

the same time. No nexus was required.

       The evidence supported the enhancement finding.

       Offender Score

       Mr. Canfield next argues that the court erred in calculating the offender score,

claiming that his prior history was not proved. Because the defense agreed with the

prosecutor's summary of criminal history and the resulting standard ranges, this

challenge is waived.2

       It is the State's burden to prove criminal history at sentencing. State v. Ford, 137

Wn.2d 472, 480, 973 P.2d 452 (1999). However, that burden is relieved if the defendant

affirmatively acknowledges the alleged criminal history. State v. Hunley, 175 Wn.2d

901, 917, 287 P.3d 584 (2012). That is what the defense did here. When presented with

the summary of criminal history, and an offer to present certified copies of the prior




       2
        The prosecutor advised the court that he had certified copies of the prior
convictions available in the event they were needed. Clerk's Papers at 120.

                                             9
No. 34881-4-111
State v. Canfield


convictions,defense counsel told the court that he agreed with the computation of the

ranges.

       This was sufficient acknowledgement to relieve the State of having to do more.

The trial court did not err by agreeing with the offender scores calculated by the parties

and the ensuing high end ranges for each offense.3

       The sentencing challenge was waived.

       Obstructing Charge

       Mr. Canfield next argues that his right to a unanimous verdict on the obstructing

charge was violated by the failure of the prosecutor to either elect which action he was

relying on or propose a unanimity instruction. A majority of the court agrees with this

argument and reverses the obstruction charge.

       Where the evidence shows multiple acts occurred that could constitute the charged

offense,the State must either elect which act it relies on or the jury must be instructed that

it must unanimously agree on which act it found. State v. Petrich, 101 Wn.2d 566,572,

683 P.2d 173 (1984). Constitutional error occurs if there is no election and no unanimity

instruction is given. State v. Bobenhouse, 166 Wn.2d 881,893,214 P.3d 907 (2009); State




       3In the event that Mr. Canfield believes he can show that some of his prior
offenses were used in error,he is free to present his evidence and argument at the next
sentencing hearing. However,the State is not under any obligation to again prove the
offenses unless it desires to address a defense argument.

                                             10
No. 34881-4-111
State v. Canfield


v. Kitchen, 110 Wn.2d 403,411,756 P.2d 105 (1988). This type of error requires a new

trial unless shown to be harmless beyond a reasonable doubt. State v. Camarillo, 115

Wn.2d 60,64,794 P.2d 850 (1990).

       However,no election or unanimity instruction is needed if the defendant's acts

were part of a continuing course of conduct. State v. Handran, 113 Wn.2d 11,17,775

P.2d 453 (1989). Appellate courts must "review the facts in a commonsense manner to

decide whether criminal conduct constitutes one continuing act." State v. Fiallo-Lopez,

78 Wn. App. 717,724,899 P.2d 1294 (1995). A continuing course of conduct exists

when actions promote one objective and occur at the same time and place. Petrich, 101

Wn.2d at 571; State v. Love, 80 Wn. App. 357,361,908 P.2d 395 (1996).

       Although this author believes that this fact pattern involves a continuing course of

conduct,thus negating the unanimity issue,a majority believes that this case was treated

as a multiple acts case and needed a unanimity instruction. For that reason,the

conviction is reversed.

       Additionally,this court recently decided that passive resistance to handcuffing

does not constitute obstructing a public servant. State v. D.E.D., 200 Wn. App. 484,496,

402 P.3d 851 (2017).4 Because that type of evidence was presented to the jury here,and

was argued as a basis for conviction,the jury may have relied on an insufficient



      4
          D.E.D. was released after the trial in this case.

                                               11
No. 34881-4-III
State v. Canfield


evidentiary theory to support its verdict. Reversal is required for that reason. State v.

Maupin, 63 Wn. App. 887, 822 P.2d 355 (1992).

       The conviction for obstructing a public servant is reversed. Whether or not the

State elects to retry the obstructing count, a new sentencing hearing is required. If there

is no obstructing conviction, the trial court must reallocate the credit for time served prior

to sentencing to the felony offenses. In the event that the charge is retried and a

conviction again ensues, a sentence would have to again be imposed for the offense. In

either instance, Mr. Canfield will need to be resentenced.

       LFOs

       Mr. Canfield next argues that the trial court conducted an insufficient inquiry

before imposing the discretionary LFOs. Because this matter must be remanded for

resentencing, he is free to pursue this claim at that hearing. Accordingly, we do not

otherwise address this argument.

       Costs on Appeal

       Lastly, Mr. Canfield asks that we waive appellate costs. Since he has prevailed to

the extent of earning a new trial, the State is not a prevailing party. No costs will be

awarded. RAP 14.2.




                                             12
No. 34881-4-111
State v. Canfield


      Affirmed in part and reversed in part.

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

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.




WE CONCUR:




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      Lawrence-Berre C.J.




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