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    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                             DIVISION II

STATE OF WASHINGTON,                                                           No. 43758 -9 -II


                                Respondent,                            UNPUBLISHED OPINION


       V.



TIMOTHY HUMPHRIES,




       BJORGEN, J. —     A jury returned verdicts finding Timothy Humphries guilty of unlawful

possession of a controlled substance with       intent to deliver ( cocaine),     unlawful possession of a



controlled substance (   Oxycontin),   and   driving   under   the influence ( DUI). Humphries appeals his



convictions, asserting that ( 1) the State failed to present sufficient evidence to support his driving

under the influence conviction, (2) the State failed to present sufficient evidence to support his

possession of cocaine with    intent to deliver   conviction, (   3) the jury instructions relieved the State

of its burden to prove the essential elements of unlawful possession of Oxycontin, (4) the

prosecutor committed misconduct at       closing   by   arguing   a   theory   not supported   by the jury
No. 43758 -9 -II



instructions, and ( 5) defense counsel was ineffective for failing to request an unwitting

possession jury instruction and for failing to object to the prosecutor' s argument at closing. We

affirm.



                                                              FACTS


          While attending a party, Timothy Humphries began arguing with his ex -girl friend and

his   ex -
         girl   friend'   s   boyfriend,   who went       by the   name "   E."    Report of Proceedings ( RP) at 365-


68. Humphries        was       drinking    alcohol at    the party and was " pretty buzzed."          RP at 377.


Humphries and E agreed to continue their argument at a different location, and they both left in

separate cars. Humphries returned to the party about 30 minutes later, sat in his car, and revved

his engine. While displaying a gun against the frame of his car door, Humphries told someone at

the party that he     was       looking    for E   and   that " if [
                                                                   E] really      wants some, [   he can] come get some."


RP at 374. After Humphries drove away, someone at the party called 911 to report the incident.

          The same evening, March 3, 2012, Bremerton Police Patrol Sergeant Billy Renfro

responded to a dispatch report of a threat with a firearm. Renfro saw a vehicle matching the

description provided by the-91-1 caller and pulled the vehicle over. Officer Bryan Hall arrived at -- - -

the scene as Renfro was conducting his stop. The vehicle' s passenger was compliant with the

officers' commands, but the driver of the vehicle, Humphries, was not. While in his car,


Humphries repeatedly lowered his right hand and leaned to the right. Once out of the vehicle

Humphries        said, "   Don' t   shoot me,"     and he acted as if he was weak in the knees. RP at 117.


          Hall placed Humphries in handcuffs and conducted a pat -
                                                                 down search of his outer


clothing before placing him in Officer Matthew Thuring' s vehicle. A short time later, Hall

informed Humphries that he was under arrest, asked him to step out of Thuring' s vehicle, and


                                                                    2
No. 43758 -9 -II



searched him incident to arrest. During the search of Humphries' person, Hall found a cigarette

pack containing $900 and a small bag containing 50 prescription pills, which were later tested

and determined to contain oxycodone.


        Thuring had to leave the scene to, attend to another priority call. When Renfro went to

transfer Humphries from Thuring' s vehicle, he noticed that Humphries was asleep and drooling

on himself. Additionally, Renfro could smell the odor of intoxicants on Humphries' breath.

During the transfer, Renfro saw that Humphries had difficulty maintaining his balance. Thuring

inspected the back seat of his patrol car and saw a pack of Newport cigarettes, the brand of


cigarettes that Humphries smokes, near the location where Humphries had been sitting. When

Thuring opened the pack, he found a razor blade and six packages that all appeared to contain

cocaine. The six packages were later weighed, tested, and confirmed to contain a combined total


of 17. 7 grams of cocaine.


        Officer Donnell Rogers, a certified drug recognition expert, arrived at the scene to assist

the other officers and to transfer Humphries to the Kitsap County Jail. When Rogers assisted

Humphries-to his patrol vehicle,-he could smell -
                                                alcohol and burnt marijuana emanating from- -

Humphries. Rogers noted that Humphries had red and watery eyes and that his pupils appeared

dilated. Rogers further   noted   that Humphries had " very   slowed [ and]   very   slurred speech."   RP


at 306. While walking to Rogers' s patrol vehicle, Humphries stumbled and staggered to the

point where Rogers had to hold on to him and assist him to the vehicle. After Rogers secured


Humphries in his vehicle, he informed Humphries that he was investigating the possibility that

Humphries was impaired. Humphries told Rogers that " he may have had a drink or two [ and]




                                                   3
No. 43758 -9 -II



that he had   smoked some marijuana,"    but that he   possessed a " marijuana green card."      RP at


307 -08. Rogers told Humphries that a green card does not allow him to drive impaired.


        After arriving at the Kitsap County Jail, Rogers gave Humphries a " DUI packet" and

explained its contents, which included an advisement of constitutional rights, an implied consent


form for blood testing, and an advisement of the consequences for refusing a blood test.

Humphries told Rogers that he understood his rights and that he was refusing to submit to a

blood test. On June 26, 2012, the State charged Humphries by amended information with

unlawful possession of a controlled substance with        intent to deliver ( cocaine),   unlawful




possession of a controlled substance ( Oxycontin),       DUI, and unlawful display of a weapon.

        At trial, Renfro and Rogers both testified that they believed Humphries had been

intoxicated while driving, based on their observations of Humphries' appearance and behaviors

on the night of his arrest. On cross -examination, Renfro testified that he did not observe


Humphries driving erratically or commit any traffic infractions when he pulled him over. Hall

testified on cross -examination that he did not recall Humphries having any difficulty walking on

the night of his arrest. Thuring testified on cross- examination that during his one =
                                                                 -                   minute

interaction with Humphries, he did not notice that Humphries had watery or bloodshot eyes,

slurred speech, bad balance, or the smell of alcohol on him.


        After the State and defense rested, the trial court discussed jury instructions with counsel.

During the discussion, defense counsel noted that the State' s proposed " to- convict" jury

instruction for    unlawful possession of a controlled substance referred     to "   oxycodone," and




argued that the instruction was inconsistent with the State' s charge for unlawful possession of




                                                    11
No. 43758 -9 -II



 Oxycontin." RP at 389. The State moved to amend its information to charge unlawful


possession of oxycodone, which motion the trial court denied. The trial court instructed the jury:

                    To convict the defendant of the crime of possession of a controlled
             substance, each of the following elements of the crime must be proved beyond a
             reasonable doubt:
                      1) That on or about or between March 3, 2012, and March 4, 2012, the
                         defendant possessed oxycontin and that " oxycontin" is an official
                         name, common or usual name, chemical name or brand name for a
                         controlled substance; and

                     2) That this act occurred in the State of Washington.
                     If you find from the evidence that each of these elements has been proved
             beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
                    On the other hand, if, after weighing all the evidence, you have a
             reasonable doubt as to any one of these elements, then it will be your duty to
             return a verdict of not guilty.


Clerk'   s   Papers ( CP)   at   271.   The trial   court   further instructed the jury,   " Oxycodone is a

controlled substance."           CP at 272. Defense counsel did not request an " unwitting possession ".

instruction.       Neither party requested an instruction defining actual and constructive possession,

and the trial court did not provide one.


             During its closing argument, defense counsel explained the difference between actual and

constructive possession and argued that the evidence did not support the-State' s theory that

Humphries constructively possessed the cocaine found in Thuring' s patrol car. In response, the

State argued that the evidence supported a finding that Humphries actually possessed the

cocaine. The jury returned verdicts finding Humphries guilty of unlawful possession of a

controlled substance with           intent to deliver ( cocaine),     unlawful possession of a controlled



substance (      Oxycontin),      and   DUI. The jury       also returned a verdict   finding   Humphries   not   guilty
No. 43758 -9 -II



of unlawful display of a weapon. Humphries timely appeals his convictions.

                                                               ANALYSIS


                                              I.        SUFFICIENCY OF THE EVIDENCE


             Humphries first contends that the State failed to present evidence sufficient to support his


DUI conviction and his unlawful possession of a controlled substance with intent to deliver


 cocaine) conviction. We disagree.


             Sufficient evidence exists to support a conviction if any rational trier of fact could find

the essential elements of the crime beyond a reasonable doubt when viewing the evidence in the

light   most    favorable to the State. State             v.   Hosier, 157 Wn.2d 1, 8, 133 P. 3d 936 ( 2006). A


defendant claiming insufficiency of the evidence admits the truth of the State' s evidence and all

inferences that reasonably can be drawn from the evidence. State v. Salinas, 119 Wn.2d 192,

201, 829 P. 2d 1068 ( 1992).              Circumstantial evidence 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, credibility of witnesses, and the persuasiveness of the evidence.

State v. Walton, 64 Wn. App. 4:10- 415- 16; 824 P. 2d 533- (1992)-.

A.           Driving Under the Influence

             To convict Humphries of DUI, the State had to prove beyond a reasonable doubt all the

essential      elements   of   former RCW 46.61. 502 ( 2011), the statute in effect when Humphries was


alleged to have committed his crime. See State v. Schmidt, 143 Wn.2d 658, 673 -74, 23 P. 3d 462


 2001) (      courts apply " the law in effect at the time a criminal offense is actually committed. ").

Former RCW 46. 61. 502 provided three alternative means by which an individual may commit

the   crime of    DUI. See,      e. g.,   State    v.   Shabel, 95 Wn.   App. 469,   473, 976 P. 2d 153 ( 1999). The




                                                                     n
No. 43758 -9 -II



State had to prove beyond a reasonable doubt that ( 1) Humphries drove a vehicle within the

state, and ( 2) either ( a) had a blood alcohol concentration of 0. 08 or higher within two hours after


driving, (b) was under the influence of or affected by intoxicating liquor or any drug, or ( c) was

under the combined influence of or affected by intoxicating liquor or any drug. Former RCW

46. 61. 502.


          Here, Renfro testified that Humphries was the driver of a vehicle he had pulled over in

Bremerton, Washington. This was sufficient evidence that Humphries drove a vehicle in this


state. Additionally, Renfro testified that he observed Humphries sleeping and drooling, having

difficulty maintaining balance, and emanating the odor of intoxicants. Rogers similarly testified

that he   could smell   the   odor of alcohol and   burnt   marijuana on   Humphries. Rogers also testified


that Humphries had watery and bloodshot eyes, dilated pupils, and slurred speech. Rogers

further testified that Humphries admitted to having a drink or two and to smoking marijuana.

There was also testimony presented at trial that Humphries had been drinking alcohol and was

 pretty buzzed" before driving away from the party he was attending. RP at 377. Taken

together, this evidence is more than sufficient to prove that-Humphries was under-the influence

of or affected by intoxicating liquor or any drug or that he was under the combined influence of

or affected by intoxicating liquor or any drug.

          Humphries nonetheless argues that sufficient evidence did not support his DUI

conviction because there was no evidence that he had been driving erratically before being pulled

over. Although Renfro testified that he did not observe Humphries driving erratically, former

RCW 46. 61. 502 does not require direct evidence that a defendant had been driving erratically.

Rather, the State need only present evidence that is " sufficient for the factfinder to infer that the


                                                        7
No. 43758 -9 -II



 defendant' s] ability to handle an automobile was lessened in an appreciable degree by the

consumption of     intoxicants    or   drugs."   State v. Wilhelm, 78 Wn. App. 188, 193, 896 P. 2d 105

 1995).   Such   evidence   may be      circumstantial.   Wilhelm, 78 Wn.   App.   at   192 -93.   Here, Renfro' s


and Rogers' s observations of Humphries appearance and behaviors on the night of his arrest was


sufficient circumstantial evidence from which the jury could infer that Humphries was under the

influence of alcohol or drugs, or a combination of both, while driving a vehicle in Washington

State. Accordingly, sufficient evidence supports his DUI conviction.

          Humphries also argues that sufficient evidence did not support his DUI conviction in


light of conflicting evidence of his intoxicated state. Specifically, Humphries directs us to

Thuring' s testimony that he did not notice whether Humphries had watery or bloodshot eyes,

slurred speech, bad balance, or the smell of alcohol on him, as well as Hall' s testimony that he

did not recall Humphries having any difficulty walking on the night of his arrest. But when

reviewing the sufficiency of the evidence in support of conviction, we view the evidence in a

light most favorable to the State and do not evaluate the credibility of witnesses. Hosier, 157

Wn.2d at 8•` Walton 64 Wn. App. at415 -16. Accordingly, Humphries' s -sufficiency argument on

this ground is meritless and we do not further address it.

B.        Unlawful Possession of a Controlled Substance with Intent to Deliver

          Next, Humphries contends that the State failed to present sufficient evidence in support

of his unlawful possession of a controlled substance with intent to deliver ( cocaine) conviction.

We disagree. To convict Humphries of unlawful possession of a controlled substance with intent

to deliver, the State had to prove beyond a reasonable doubt that he ( 1) unlawfully possessed ( 2)

with   intent to deliver ( 3)   a controlled substance.    Former RCW 69. 50. 401 ( 2005); State         v.   Sims,
No. 43758 -9 -II



119 Wn.2d 138, 141, 829 P. 2d 1075 ( 1992).        Humphries challenges only the sufficiency of the

evidence in support of the first element, possession.


             Humphries asserts that the State failed to present any evidence that he actually possessed

the cocaine found in the cigarette pack in the back of Thuring' s patrol vehicle. He urges that the

State' s evidence merely showed his proximity to the cocaine, which Humphries argues was

insufficient to establish his constructive possession of the cocaine. We hold that the State


presented sufficient circumstantial evidence that Humphries actually possessed cocaine and thus,

sufficient evidence supported his conviction.


             A defendant' s possession of a controlled substance may be either actual or constructive.

State   v.   Callahan, 77 Wn.2d 27, 29, 459 P. 2d 400 ( 1969). " 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."   Callahan, 77 Wn.2d at 29.


The State may prove actual possession by circumstantial evidence. State v. Manion, 173 Wn.

App. 610, 634, 295 P. 3d 270 ( 20"13y (citing State "v. DuPont; 14 Wii: App: 22, 25, 538P.2d"823
 1975)).


             Here, Thuring testified that he had checked the back seat of his patrol car at the beginning

of his shift on March 3, 2012 and did not see anything there. He also testified that he had not

placed anyone in the back of his patrol car on that evening before Humphries. After Humphries

had been removed from the back of Thuring' s patrol vehicle and before Thuring left the scene,

he again searched the back of his vehicle to make sure Humphries did not leave any property




                                                      a
No. 43758 -9 -II



behind. During this search, Thuring found the pack of Newport cigarettes containing a razor

blade and six packages of cocaine where Humphries had been sitting. There was trial testimony

that Humphries smoked Newport brand cigarettes. When viewed in a light most favorable to the


State, the above evidence was sufficient to establish that Humphries actually possessed the

cocaine before leaving it in Thuring' s vehicle. Accordingly, we hold that sufficient evidence

supported Humphries' s possession of a controlled substance with intent to deliver (cocaine)


conviction.



                                           II. JURY INSTRUCTIONS


          Next, Humphries asserts that the trial court' s jury instructions relieved the State of its

burden to prove all the essential elements of possession of a controlled substance ( Oxycontin).

We disagree.


          We review alleged errors of law injury instructions de novo. State v. Barnes, 153 Wn.2d

378, 382, 103 P. 3d 1219 ( 2005); see also State v. Pirtle, 127 Wn.2d 628, 656 -57, 904 P. 2d 245


 1995).    A jury instruction that relieves the State of its burden of proof is reversible error. Pirtle,

127 Wn.2d-at656. A defendant may challenge a j urY instruction for relieving the State of its
                               Y        g                                  g


burden of proof for the first time on appeal. State v. Brett, 126 Wn.2d 136, 171, 892 P. 2d 29

 1995). In general, all essential elements to a charged crime must be included in the trial court' s


 to- convict" jury instruction. State v. Mills, 154 Wn.2d 1, 7, 109 P. 3d 415 ( 2005).

          To convict Humphries for unlawful possession of a controlled substance, the State had to

prove beyond a reasonable doubt that Humphries possessed a controlled substance. Former




                                                     10
No. 43758 -9 -II



RCW 69. 50. 4013 ( 2003).              RCW 69. 50. 206      provides   that " oxycodone"   "   by whatever official

name, common or usual name, chemical name, or brand name designated" is a schedule II

controlled substance.           See   also   former RCW 69. 50. 101( d) ( 2010) ( defining        " controlled

substance"       in   part as   any   schedule   II   drug). Humphries appears to argue that the trial court' s jury

instructions relieved the State of its burden to prove that " Oxycontin" was a controlled

substance. Here, the trial court' s " to- convict" jury instruction stated:

                       To convict the defendant of the crime of possession of a controlled
           substance, each of the following elements of the crime must be proved beyond a
           reasonable doubt:
                        1) That on or about or between March 3, 2012; and March 4, 2012, the
                       defendant possessed oxycontin and that " oxycontin" is an official name,
                       common or usual name, chemical name or brand name for a controlled
                       substance; and

                        2) That this act occurred in the State of Washington.
                       If you find from the evidence that each of these elements has been proved
           beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
                  On the other hand, if, after weighing all the evidence, you have a
           reasonable doubt as to any one of these elements, then it will be your duty to
           return a verdict of not guilty.


CP   at   271.   This instruction did not relieve the State of its burden of proof as it required the jury

to find all the essential elements of unlawful possession. of a controlled substance, including the -

requirement that the substance Humphries was alleged to possess, Oxycontin, was a controlled


substance as defined in RCW 69.50. 206. The trial court' s jury instruction stating " Oxycodone is

a controlled substance" also did not relieve the State of its burden of proof as oxycodone is


statutorily defined as a controlled substance under former RCW 69.50. 101( d) and RCW




                                                                 11
No. 43758 -9 -II



69. 50. 206( b)( 1)(   xvi).   Accordingly, we hold that the trial court' s jury instructions did not relieve
                                           1
the State   of   its burden    of proof.



                                               III. PROSECUTORIAL MISCONDUCT


         Next, Humphries contends that the prosecutor committed misconduct during rebuttal

closing argument by arguing a constructive possession theory unsupported by the jury

instructions. Because defense counsel invited the prosecutor' s remarks that Humphries now


complains of on appeal by first arguing the theory of constructive possession during his closing

argument, we disagree.


         A defendant claiming prosecutorial misconduct must show both improper conduct and

resulting   prejudice.     State   v.   Fisher, 165 Wn.2d 727, 747, 202 P. 3d 937 ( 2009). Prejudice exists


when there is a substantial likelihood that the misconduct affected the verdict. State v.

McKenzie, 157 Wn.2d 44, 52, 134 P. 3d 221 ( 2006). Because Humphries did not object to the


prosecutor' s allegedly improper conduct at trial, we must ascertain whether the prosecutor' s

misconduct was " so flagrant and ill-intentioned" that it caused an " enduring and resulting

prejudice" incurable by a jury instruction: State v.-Stenson, 132 Wn.2d 668, 719, 940 P.2d 1239

 1997). Under this heightened             standard of review,   Humphries has the burden to   show   that "( 1)



 no curative instruction would have obviated any prejudicial effect on the jury' and (2) the

misconduct resulted in prejudice that `had a substantial likelihood of affecting the jury verdict. "'




1 Humphries arguments on this issue are difficult to discern. To the extent he argues that the trial
court' s, instructions were not supported by the evidence at trial, the State presented testimony that
Oxycontin is a brand name for the drug oxycodone. To the extent that he argues that the trial
court' s jury instructions were inconsistent with the State' s charges, the State' s amended
information alleges that Humphries possessed Oxycontin, not oxycodone as Humphries asserts in
his brief.
                                                           12
No. 43758 -9 -II



State   v.    Emery,     174 Wn.2d 741, 761, 278 P. 3d 653 ( 2012) ( quoting                     State v. Thorgerson, 172

Wn.2d 438, 455, 258 P. 3d 43 ( 2011)).

              A prosecutor' s remarks are not misconduct if the remarks are invited by defense counsel

or are   in reply to defense          counsel' s acts "`    unless such remarks go beyond a pertinent reply and

bring before the jury extraneous matters not in the record, or are so prejudicial that an instruction

would not cure          them. "' State       v.   Dennison, 72 Wn.2d 842, 849, 435 P. 2d 526 ( 1967) ( quoting


State    v.   LaPorte, 58 Wn.2d 816, 822, 365 P. 2d 24 ( 1961));                    State v. Jones, 144 Wn. App. 284,

299, 183 P. 3d 307 ( 2008).


              Here defense counsel invited the prosecutor' s allegedly improper rebuttal by first raising

the issue in his closing argument, stating:

                       But let'   s   talk   about    actual    possession here.       There' s two ways that an

              individual can possess something, actual possession and constructive possession.
              Now, it could be said that I' m in actual possession of the jury instructions. I' m

              holding them. Maybe they' re in my pocket, my jacket. I' m in actual possession.
              Clearly, what' s been proffered before you is that Mr. Humphries wasn' t in actual
              possession    of   any    cocaine.       There'   s   been   no    evidence   of   that.   Now, what the

              State' s theory is is that Mr. Humphries was in constructive possession of the
              cocaine,  ie., he had some dominion and control over it, even though he may not
              have actually-possessed it.

RP at 467. In response to defense counsel' s assertion that the State was pursuing a constructive

possession theory, the prosecutor argued in rebuttal closing that it was pursuing an actual

possession theory, but that Humphries' s constructive possession had also been established. To

that end, the prosecutor stated:


                        Counsel       also        talked   about      actual      possession      versus    constructive


              possession. Timothy Humphries was in actual possession up until the moment he
              ditched these drugs in the patrol car. And I' m not sure if I quite follow Counsel' s
              argument from there, whether or not it was saying that once he leaves these drugs
              behind he' s    no      longer in      possession      of    the   cocaine?    I' m not sure if we' re



                                                                     13
No. 43758 -9 -II



          supposed to then charge Officer Thuring with possession of a controlled
          substance, since   they    were   in his   car, at   that   point?   But the constructive
          possession    is there.    The actual possession is there until the moment he tries to
          hide them.


IAM • ' : 101



          The prosecutor' s remarks regarding constructive possession were clearly in response to

defense    counsel   first raising the issue in his closing           argument.   Accordingly, "` unless    such




remarks go beyond a pertinent reply and bring before the jury extraneous matters not in the

record, or are so prejudicial       that an instruction        would not cure     them, "'   they do not constitute

prosecutorial misconduct requiring a reversal of Humphries' s convictions. Dennison, 72 Wn.2d

at   849 ( quoting LaPorte, 58 Wn.2d         at   822).   The prosecutor' s discussion of constructive


possession was brief and did not go beyond a pertinent reply to defense counsel' s argument.

Additionally, the remarks were not so prejudicial that a curative instruction directing the jury to

disregard the remarks could not have cured them. Consequently, under the principles above

Humphries has failed to establish prosecutorial misconduct.


                                         IV. INEFFECTIVE ASSISTANCE OF COUNSEL


          Next, Humphries contends that his defense counsel was ineffective for failing to request

an unwitting possession jury instruction with regard to his unlawful possession of a controlled

substance ( cocaine) charge.        2 Because an unwitting possession jury instruction is unavailable in a
prosecution for unlawful possession of a controlled substance with intent to deliver, we disagree.

           We review ineffective assistance of counsel claims de novo. State v. Binh Thach, 126

Wn.     App.    297, 319, 106 P. 3d 782 ( 2005). To prevail on an ineffective assistance of counsel



2
     Humphries does not assert that his counsel was ineffective for failing to request an unwitting
possession instruction with regard to his unlawful possession of a controlled substance
    Oxycontin) charge.
                                                                14
No. 43758 -9 -II



claim, Humphries must show both that ( 1) counsel' s performance was deficient and ( 2) the

deficient performance prejudiced him. Strickland v. Washington, 466 U. S. 668, 687, 104 S. Ct.

2052, 80 L. Ed. 2d 674 ( 1984); State v. Brockob, 159 Wn.2d 311, 344 -45, 150 P. 3d 59 ( 2006).


Performance is deficient if, after considering all the circumstances, it falls below an objective

standard of reasonableness. State v. McFarland, 127 Wn.2d 322, 334 -35, 899 P. 2d 1251 ( 1995).

Prejudice results if the outcome of the trial would have been different had defense counsel not

rendered deficient performance. McFarland, 127 Wn.2d at 337. We strongly presume that

counsel is effective and the defendant must show the absence of any legitimate strategic or

tactical reason supporting defense counsel' s actions. McFarland, 127 Wn.2d at 337. To rebut

this presumption, the defendant bears the heavy burden of "establishing the absence of any

 conceivable    legitimate tactic explaining          counsel' s performance."'   State v. Grier, 171 Wn.2d 17,


42, 246 P. 3d 1260 ( 2011) (       quoting State v. Reichenbach, 153 Wn.2d 126, 130, 101 P. 3d 80

 2004)).


        A defendant in a criminal case is " entitled to have the trial court instruct upon its theory

of the case   if there is     evidence to support the     theory.   State v. Hughes, -106 Wn.2d 176; 191, 721 -


P. 2d 902 ( 1986). "        Unwitting possession is a judicially created affirmative defense that may

excuse the defendant' s behavior, notwithstanding the defendant' s violation of the letter of the

statute."    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.

           In State    v.   Sanders, 66 Wn.    App.   380, 390, 832 P. 2d 1326 ( 1992), we held that an


unwitting possession jury instruction did not apply in a prosecution for unlawful possession with


                                                             15
No. 43758 -9 -II



intent to deliver. In so holding, we reasoned that a defendant' s knowledge regarding the

presence and nature of an illicit substance " is subsumed under the statutory requirement that the

defendant intended to deliver            a controlled substance."   Sanders, 66 Wn. App. at 390. Because an

unwitting possession jury instruction was unavailable to Humphries with regard to his unlawful

possession with intent to deliver (cocaine) conviction, his defense counsel was not ineffective for

failing to request it.

          Finally, Humphries argues that his defense counsel was ineffective for failing to object to

the prosecutor' s remarks on constructive possession. However, as we addressed above, the


prosecutor' s constructive possession remarks were made in response to defense counsel' s closing

argument and therefore were not improper. Accordingly, Humphries cannot show any prejudice

resulting from defense counsel' s failure to object to the prosecutor' s remarks.

          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 - r ere . - - - - - - - - - - - - - --
                    o




                                                              BfRGEN,
We concur:




                                                             16
