                                                                                                                        r[) •
                                                                                                         COURT OF APPEALS
                                                                                                            MVISRO N T

                                                                                                        20111AFR 29      AM 8 : 14




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGT

                                                   DIVISION II

STATE OF WASHINGTON,                                                              No. 43898 -4 -II


                                       Respondent,


         v.



CLAYBORN NMI JONES,                                                       UNPUBLISHED OPINION


                                       Appellant.




         LEE, J. —      Clayborn Jones appeals his conviction of unlawful possession of a controlled

substance     and    driving   under   the influence ( DUI).        He   argues   that ( 1)   he received ineffective


assistance of counsel when his attorney failed to propose a jury instruction on unwitting

possession and ( 2) the evidence is insufficient to support his DUI conviction. Because counsel' s


failure to propose an unwitting possession instruction was not prejudicial and because the

evidence was sufficient to show that Jones' s breath alcohol concentration ( BAC) was greater


than 0. 08 within two hours of driving, we affirm the convictions.

                                                            FACTS


         On February 15, 2011, Kitsap County Deputy Sheriff Joseph Hedstrom responded to a

request from the Bremerton police to investigate a residential burglary outside the city limits.

Hedstrom      parked   down the    street and walked        up to the house with his     partners.   He saw no signs


of a   burglary     from the front     of   the property,   and no one responded when          Hedstrom knocked    on
No. 43898 -4 -II




the front door. He was attempting to find a phone number for the residence when Jones drove up

the driveway.

         Deputy         Hedstrom    greeted   Jones       and    explained    why the    officers   were   there.   Jones


responded that a man had assaulted a woman and asked if he could show the officers some

pictures on     his   cell phone.   As Jones    spoke,      Hedstrom       could smell   intoxicants. When Jones got


out of the car to show Hedstrom his cell phone, his shoes were untied and his pants zipper was

down. Jones'       s speech was slurred and          he   was    hard to   understand.     Hedstrom asked Bremerton


officers to check on the woman at the address Jones provided and continued his conversation

with   Jones.      Jones    admitted     drinking    some       beer, but declined to say how        much.     Hedstrom


suspected that Jones was under the influence and summoned a state trooper.


          Trooper Jermaine Walker arrived at about 2: 30 AM. After Jones performed poorly on five

field sobriety tests, Walker concluded that Jones was extremely impaired and arrested him for

DUI.     Walker       searched   Jones but did      not   discover any       contraband.    He then took Jones to the


BAC     facility   at   the Silverdale   precinct.    Jones gave a breath sample at 4: 01 AM that showed his


BAC was . 093. He gave a second sample at 4: 03 AM that showed a BAC of .095.


          Trooper Walker then transported Jones to the Port Orchard jail and searched him again

pursuant    to jail policy.      When he stood Jones against the wall with his hands behind his back,


Jones    reached around       into his front   pocket.      Walker grabbed Jones' s hand and a small wooden


pipe    fell to the floor.       Walker could see and smell burnt marijuana on the pipe, and Jones


confirmed that he had just taken the pipe from his pocket.


          Jones denied that there was anything else in his pocket, but Trooper Walker checked the

front coin pocket on Jones' s jeans and found a tiny plastic bag containing a white powdery



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No. 43898 -4 -II



substance.      When Walker           asked     Jones if it       was   his   methamphetamine,           Jones   replied, "   No. It' s


cocaine." 2 Report of Proceedings ( RP) at 126.

         The State        charged     Jones     with possession of a controlled substance ( cocaine),                     DUI, and


use of   drug   paraphernalia.            Deputy Hedstrom and Trooper Walker testified to the facts set forth

above.    A forensic scientist testified that the bag contained cocaine and that the pipe contained

cocaine and marijuana residue.



         Jones testified that he had gone to see his granddaughter after work and that he might


have had     some        brandy      before he          arrived   home.         However, Jones denied being under the

influence    and maintained           that he   passed all of       his sobriety tests.          Jones added that when he got


out of the car, he was cold in his short- sleeved shirt and retrieved a coat from the back seat.

Although the       car   belonged to his        wife,     Jones did     not    think the   coat was      hers.   When his attorney

asked    if he knew       who owned          the   coat,   Jones    replied, "    I have got teenagers all over the place.


I' m sorry. But I' ve          got   15   people   that drive this       vehicle."      3 RP     at   255.   He added that he was


wearing slacks that did not have a coin pocket.

         Jones explained further that as he was getting out of the trooper' s car at the jail, he felt

something in his coat pocket and told Walker about it because he was concerned about taking

possible contraband            into the jail.      According to Jones, Walker reached in Jones' s pocket, threw

him against the car, and told Jones that he got the pipe and bag from Jones' s front pocket. Jones

denied    knowing        that the     cocaine      or   the   pipe was        in his   pocket.    During closing, his attorney

argued that Jones did not possess the baggie of cocaine because he did not know it was in the

pocket of    the   coat   he   retrieved     from his      car.
No. 43898 -4 -II



         The jury found Jones guilty as charged and found, by special verdict, that he had an

alcohol concentration of 0. 08 or higher within two hours after driving as shown by a breath test.

The trial court imposed concurrent sentences of 10 days in jail, with the remaining jail time

suspended.



          On appeal, Jones argues that he received ineffective assistance of counsel when his


attorney failed to propose a jury instruction on unwitting possession and that the evidence was

insufficient to prove that he had a BAC of 0. 08 or higher within two hours after driving.

                                                      ANALYSIS


A. INEFFECTIVE ASSISTANCE OF COUNSEL


          To prove ineffective assistance of counsel, a defendant must show that his attorney' s

performance       was    deficient   and   that the   deficiency   was prejudicial.   State v. McFarland, 127


Wn.2d 322, 334 -35, 899 P. 2d 1251 ( 1995).                There is a strong presumption that defense counsel' s

performance was not deficient. State v. Reichenbach, 153 Wn.2d 126, 130, 101 P. 3d 80 ( 2004).

To rebut this presumption, a defendant must show the absence of legitimate strategic or tactical

reasons      for the   challenged conduct.    State   v.   Grier, 171 Wn.2d 17, 33, 246 P. 3d 1260 ( 2011).   To


show prejudice, the defendant must show that but for the deficient performance, there is a


reasonable probability that the outcome would have been different. State v. Thomas, 109 Wn.2d

222, 226, 743 P. 2d 816 ( 1987).           Failure on either prong defeats a claim of ineffective assistance.

State v. Hendrickson, 129 Wn.2d 61, 78, 917 P. 2d 563 ( 1996).


             To convict Jones of the possession charge, the State had to prove beyond a reasonable


doubt that he possessed cocaine. Guilty knowledge and intent are not elements of this crime.

State   v.   Cleppe, 96 Wn.2d 373, 379 -80, 635 P. 2d 435 ( 1981), cert. denied, 456 U.S. 1006 ( 1982).




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No. 43898 -4 -II




To ameliorate the harshness of the crime' s strict liability nature, a defendant may assert the

affirmative    defense       of   unwitting   possession.       State v. Bradshaw, 152 Wn.2d 528, 538, 98 P. 3d


1190 ( 2004),    cert.   denied, 544 U. S. 922 ( 2005).                An unwitting possession defense requires the

defendant to prove, by a preponderance of the evidence, either that he did not know he was in

possession of the controlled substance or that he did not know the nature of the substance he

possessed.      State   v.   Staley,    123 Wn.2d 794, 799 -800, 872 P. 2d 502 ( 1994); State v. Balzer, 91


Wn.     App.   44, 67, 954 P. 2d 931,          review        denied, 136 Wn.2d 1022 ( 1998).          Thus, the defense


requires   a   defendant to        prove circumstances          negating culpability that    are "   uniquely within his

knowledge       and   ability to       establish."     State v. Knapp, 54 Wn. App. 314, 321, 773 P.2d 134,

review    denied, 113 Wn.2d 1022 ( 1989); see also State v. Coristine, 177 Wn.2d 370, 378, 300


P. 3d 400 ( 2013) (     affirmative defense places a burden of proof on the defendant, thus shaping the

defense    by introducing          elements    it    must prove).       A defendant meets his burden of proof by

persuading the trier of fact that his claim of unwitting possession is more probably than not true.

11 WASHINGTON PRACTICE:                   WASHINGTON PATTERN JURY INSTRUCTIONS:                      CRIMINAL 52. 01 at


1007 ( 3d ed. 2008).


          Here, even if defense counsel was deficient in failing to seek an instruction on unwitting

possession, we        find   no prejudice on          this   record.   Both Deputy Hedstrom and Trooper Walker

testified that when they confronted Jones in the early morning hours of February 15, he was

extremely impaired.           Hedstrom described Jones' s slurred speech and unkempt appearance, and


Walker described in detail Jones' s very                 poor performance on        five field sobriety tests.     Shortly

after   those tests, Jones'        s   breath tests    revealed   that   he   was under   the influence   of   intoxicants.
No. 43898- 4- 11




Walker also described the subsequent search of Jones' s pants pocket and Jones' s statement that

the substance found was cocaine and not methamphetamine.


         Despite this evidence, Jones categorically denied being under the influence during his

confrontations with Deputy Hedstrom and Trooper Walker, and he testified that he " did great"

on all of   the field sobriety tests      and passed     them completely.       3 RP       at   246.   He described his


performance on those tests in some detail, but when defense counsel asked whose coat he


removed from the car, he declined to answer directly and replied that 15 people drive the vehicle.

         Jones also testified that he boards a ferry to go to work every morning at 6: 20 and that he

had driven straight from the ferry after work to his granddaughter' s residence before arriving

home.    Deputy     Hedstrom described the            weather   as   being   clear   and    cold.      Thus, even if the


cocaine came from his coat rather than his pants, as Jones claims, it seems implausible that he

would not have had his coat with him when he left for work on a cold February morning dressed

in a short- sleeved shirt.


         Jones was the only defense witness. He had difficulty in responding directly to many of

defense counsel' s questions, and the State chose not to cross -examine him. Based on the record

before us, we cannot conclude that the trial' s result probably would have differed had defense

counsel requested and obtained an unwitting possession instruction. Accordingly, Jones' s claim

of ineffective assistance of counsel fails.

B. SUFFICIENCY OF THE EVIDENCE


         Jones also argues that the evidence was insufficient to prove that he had a BAC of 0. 08 or

higher   within    two   hours   of   driving   and   that dismissal   of   his DUI   conviction        is   required.   We


disagree.




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No. 43898 -4 -II



             Evidence is sufficient to support a conviction if, when viewed in the light most favorable

to the prosecution, it permits any rational trier of fact to find the essential elements of the crime

beyond       a reasonable         doubt. State    v.   Salinas, 119 Wn.2d 192, 201, 829 P. 2d 1068 ( 1992). "                  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. . Circumstantial and direct evidence are


equally      reliable.      State   v.   Delmarter, 94 Wn.2d 634, 638, 618 P. 2d 99 ( 1980).                    We defer to the


trier of fact on issues of conflicting testimony, witness credibility, and the persuasiveness of the

evidence. State v. Camarillo, 115 Wn.2d 60, 71, 794 P. 2d 850 ( 1990).


             A person is under the influence of intoxicating liquor or any drug if the person has a BAC
                                                                                                   1
of   0. 08   or   higher    within   two hours   after     driving.   RCW 46. 61. 502( 1)(   a).       Jones argues that under


RCW 46. 61. 502( 1)(          a),   his breath test had to occur within two hours of his driving to constitute

evidence          that he   was   driving    under   the influence.        He makes this argument even though RCW


46.61. 502( 4)( a) states that breath samples obtained more than two hours after the alleged driving

may be used as evidence that within two hours of the alleged driving, a person had a BAC of

0. 08 or more. Jones acknowledges this provision but contends that it is satisfied only through the

introduction of expert testimony regarding retrograde extrapolation, which is a mathematical

formula for estimating a person' s pretest alcohol concentration given that person' s later verified

alcohol concentration. State v. Wilbur - obb, 134 Wn. App. 627, 632, 141 P. 3d 665. (2006).
                                       B

             Jones cites no authority to support his claim that expert testimony is required to admit

evidence under           RCW 46. 61. 502( 4)(        a),   and we agree with the State that the statute includes no




1
    The legislature         amended       RCW 46. 61. 502 in 2013.            LAWS   OF   2013,    ch.   3, §   33.   Because the

amendments do not materially affect our analysis, we refer to the current statute.


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No. 43898 -4 -II



such requirement.          See 32 LINDA M. CALLAHAN, WASHINGTON PRACTICE:                                  WASHINGTON DUI


PRACTICE MANUAL, § 1. 4             at   7 ( 2013 -14) (   retrograde extrapolation presented by expert testimony

may be used to show that breath samples obtained more than two hours after driving are

evidence       that defendant had BAC          of .08 or        higher   within   two hours     of   driving).   Under the clear


language of RCW 46. 61. 502( 4)( a), the jury may consider any breath test in combination with the

other evidence in deciding whether the defendant had an alcohol concentration of 0. 08 or more

within    two hours       of    driving.    See State      v.    Roggenkamp,       153 Wn.2d 614, 621,            106 P. 3d 196


 2005) ( when        statutory language is unambiguous, courts must apply it as written).

          The record shows that Jones had nothing to drink after he pulled into his driveway and

before he      gave    the breath    samples.       See RCW 46. 61. 502( 3)(         a) (    it is an affirmative defense to a


DUI that the person consumed a sufficient amount of intoxicating liquor after driving but before

the administration of breath tests to cause the alcohol concentration to be 0. 08 or more within


two hours       of   driving). Deputy Hedstrom testified that Jones pulled into his driveway shortly

after   the   officers arrived at     1: 50 AM.      A reasonable jury could have inferred that breath samples

taken at 4: 01 AM and 4: 03 AM showing BAC levels of over 0. 09 proved that Jones' s BAC level

was     over   0. 08   within   two hours      of   driving. Contrary to Jones' s contention, the taking of his

breath samples just over two hours after he drove did not render the test results inadmissible to

prove that his BAC was above the level at which RCW 46. 61. 502( 1)( a) deemed him to have


been    driving   under   the influence. His sufficiency             challenge      fails.
No. 43898 -4 -II



        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.




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