                                                                          FILED
                                                                       JULY 30, 2020
                                                               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. 36765-7-III
                       Respondent,            )
                                              )
          v.                                  )
                                              )
TREVOR J. HAUGEN,                             )        UNPUBLISHED OPINION
                                              )
                       Appellant.             )

          KORSMO, J. — Trevor Haugen appeals his convictions for first degree unlawful

possession of a firearm and possession of an unlawful weapon, arguing both that the

evidence was insufficient and that he received ineffective assistance of counsel. We

affirm.

                                          FACTS

          While searching for a wanted individual, Spokane officers observed a man walk

down an alley through the snow. The officers tracked the footprints through the snow to

a recently discarded bag. The bag contained an illegal short-barrel shotgun. Officers

followed the footprints to Mr. Haugen, whose shoe prints matched those leaving the bag.
No. 36765-7-III
State v. Haugen


Mr. Haugen made statements post-arrest that the bag contained his firearm, which he

intended to sell.

       The court convicted Mr. Haugen on the two noted charges at a bench trial and

entered written findings as required by CrR 6.1. At sentencing, Mr. Haugen personally

asked the court to appoint new counsel and continue the sentencing hearing. The court

declined the two requests. Mr. Haugen instructed his attorney not to speak on his behalf.

Counsel complied. The prosecutor recommended a drug offender sentencing alternative

(DOSA), but Mr. Haugen personally declined to support a DOSA. The court then

imposed a standard range sentence.

       Mr. Haugen timely appealed to this court. A panel considered his appeal without

hearing argument.

                                       ANALYSIS

       This appeal presents arguments of insufficient evidence and ineffective assistance

of counsel. We consider those claims in the order noted.

       Sufficiency of the Evidence

       Mr. Haugen contends that the court did not have sufficient evidence, independent

of his admission, that he possessed the sawed-off shotgun. We disagree.

       “Following a bench trial, appellate review is limited to determining whether

substantial evidence supports the findings of fact and, if so, whether the findings support

the conclusions of law.” State v. Homan, 181 Wn.2d 102, 105-106, 330 P.3d 182 (2014).

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State v. Haugen


“‘Substantial evidence’ is evidence sufficient to persuade a fair-minded person of the

truth of the asserted premise.” Id. at 106. Unchallenged factual findings are verities on

appeal. State v. Baker, 136 Wn. App. 878, 880, 151 P.3d 237 (2007). In reviewing

insufficiency claims, the appellant necessarily admits the truth of the State’s evidence and

all reasonable inferences drawn therefrom. State v. Salinas, 119 Wn.2d 192, 201, 829

P.2d 1068 (1992). Finally, this court defers to the finder of fact’s resolution of

conflicting evidence and credibility determinations. State v. Camarillo, 115 Wn.2d 60,

71, 794 P.2d 850 (1990).

       No one can possess a sawed-off shotgun. RCW 9.41.190(1)(a). Mr. Haugen

challenges the sufficiency of the evidence to establish that he possessed the illegal

firearm. Possession may be actual or constructive. “Actual possession means that the

goods are in the personal custody of the person charged with possession; whereas,

constructive possession means that the goods are not in actual, physical possession, but

that the person charged with possession has dominion and control over the goods.” State

v. Callahan, 77 Wn.2d 27, 28, 459 P.2d 400 (1969).

       This was a circumstantial case of actual possession. Police trailed Mr. Haugen

over freshly fallen snow. They discovered a bag containing a short-barrel shotgun placed

on the fresh snow. They followed a set of footprints leading from the bag to Mr. Haugen.

One officer confirmed that Haugen’s shoes made the tracks they were following. Mr.

Haugen admitted that the gun was his and that he intended to sell it. From this evidence,

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State v. Haugen


the trial court easily could confirm that Mr. Haugen was the one who possessed the

illegal weapon.

       Mr. Haugen further argues that the court should not have considered his admission

without the corpus delicti of the offense having first been established. Before admitting a

defendant’s “confession” to the crime, the State must first establish that the crime

actually was committed. State v. Brockob, 159 Wn.2d 311, 327-328, 150 P.3d 59 (2006).

That was easily satisfied here. The corpus of the crime was the illegal shotgun. No one

can possess them, but someone recently had abandoned the bag with the gun. A crime

had been committed.

       Mr. Haugen’s admission that the gun was his was corroborated by the remaining

evidence. The statement was properly admitted into evidence and supported the bench

verdict. The evidence of possession was sufficient to support both convictions.

       Ineffective Assistance of Counsel

       Mr. Haugen next argues that his counsel performed ineffectively by failing to

request a continuance of the sentencing hearing in order to facilitate bringing new

counsel on board. Mr. Haugen clearly invited the “error” he now claims existed.

       Typically, to prevail on a claim of ineffective assistance, a criminal defendant has

to show both that his attorney erred so significantly that he failed to live up to the




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State v. Haugen


standards of the profession and that the error prejudiced the client.1 Strickland v.

Washington, 466 U.S. 668, 688-692, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v.

McFarland, 127 Wn.2d 322, 334-335, 899 P.2d 1251 (1995). Review is highly

deferential and we engage in the presumption that counsel was competent; moreover,

counsel’s strategic or tactical choices are not a basis for finding error. Strickland, 466

U.S. at 689-691. While counsel normally controls tactical decisions, defendants have a

constitutional right to control their own defense. In re Pers. Restraint of Jeffries, 110

Wn.2d 326, 333-334, 752 P.2d 1338 (1988). Defense counsel is not ineffective for the

defendant’s voluntary decisions that contradict counsel’s defense strategy. Id. at 332-333.

       Although Jeffries is sufficient to explain why the ineffective assistance claim

would fail, there is a more basic reason to reject Mr. Haugen’s argument. Counsel did

exactly what he was directed to do—take no further part in the proceedings. In that

circumstance, the doctrine of invited error precludes our review of this claim. A party

simply cannot take action and then claim prejudicial error from their own decision. E.g.,

State v. Studd, 137 Wn.2d 533, 545-549, 973 P.2d 1049 (1999).




       1
         Since the trial court repeatedly was advised of Mr. Haugen’s desire for a
continuance, it is difficult to understand why the trial court would have reached a
different outcome simply because counsel also asked for an extension. The merits of the
request were before the court.

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State v. Haugen


      That is the case here. Defense counsel stopped speaking for Mr. Haugen when

requested to do so. Mr. Haugen cannot assign error to counsel following that directive.

Any error was invited.

      Affirmed.

      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.

                                            _________________________________
                                                    Korsmo, J.

WE CONCUR:



_________________________________
      Pennell, C.J.



_________________________________
      Siddoway, J.




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