                                                                                                                        FILED
                                                                                                             COURT
                                                                                                                    r      APPEALS
                                                                                                                        iI IOv 11
                                                                                                         20111 JUN 10           H    LF 1
                                                                                                         s
                                                                                                                                    TO
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    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTO

                                                      DIVISION II

STATE OF WASHINGTON,                                                                 No. 44167 -5 -II


                                       Respondent,


         v.



WHITNEY JEAN WHITED,                                                            UNPUBLISHED OPINION


                                       Appellant.




         LEE, J. —       Whitney Jean Whited appeals her convictions of unlawful possession of a

controlled substance ( methamphetamine) and unlawful use of drug paraphernalia, arguing that

she received ineffective assistance of counsel when her attorney failed to request a jury

instruction    on   unwitting      possession.        She also argues that the community custody condition

prohibiting her from associating with those who use, sell, possess, or manufacture controlled

substances     is unconstitutionally         vague.    Because an unwitting possession instruction would not

have   changed      the trial'   s result,   Whited did    not receive    ineffective     assistance of counsel.        And,


because the challenged community custody condition is sufficiently clear to give Whited notice

of what conduct is prohibited, it is not unconstitutionally vague. Accordingly, we affirm.

                                                            FACTS


         Trooper Ryan Santhuff               made a   traffic stop   of a car   driven   by   Joseph Flock. Whited, his


girlfriend of   two    years, was      his   passenger.    During the stop, Flock gave Santhuff permission to

search   the   car and    told Santhuff that there         was a methamphetamine pipe              in the driver'   s   door.
No. 44167 -5 -I1



Santhuff then asked Whited whether she knew of any drugs in the car and whether she used

methamphetamine.              She said that she had used methamphetamine a few weeks ago, but she was


not addicted        to it.   She gave Santhuff permission to search the purse and clothing she had in the

vehicle.




             During his search, Trooper Santhuff found a used methamphetamine pipe in the driver' s

door, a broken methamphetamine pipe in a Crown Royal bag in the glove compartment, a

syringe in the center console, and two baggies containing suspected methamphetamine in the

car' s   ashtray.        The baggies     were underneath         some   coins.      Santhuff also found syringes in a


shaving kit behind the driver'            s    seat.    He did not find any drugs or paraphernalia in Whited' s

purse or       clothing.     Flock stated that the methamphetamine belonged to Whited, but Whited said

it   was "   both   of   theirs."   1 Report of Proceedings ( RP) at 48.


             The    State      charged    Whited         with   possessing     methamphetamine           and      using     drug

paraphernalia.             The parties     stipulated at trial that the baggies from the car contained

methamphetamine and that the pipes contained methamphetamine residue. Trooper Santhuff and


another trooper who was at the traffic stop testified about the evidence seized and the statements

made     during     the stop.       Santhuff   also    testified that Whited   referred   to the   vehicle as "   my     car."   1


RPat57.


              Whited testified in her      own     defense.     She admitted knowing that Flock was using drugs

and that she had used drugs with him, but she denied knowing that drugs were in the car at the

time     of   the stop.      She did not remember telling Santhuff that the methamphetamine belonged to

her and Flock, and she denied that it belonged to her in any way. Although Whited testified that

she and        Flock had lived together for             a year and a   half   and   that she supported    him,     she    denied ,
No. 44167 -5 -II



having    any ownership interest in the             car or    referring to it    as   her   vehicle.    She said she did not


drive, but     she admitted     that   she   often rode with     Flock in his     car.      On cross -examination, Whited


testified that she was " unsure" whether she had told the trooper that the methamphetamine in the

car belonged to both her and Flock. 1 RP at 96.


          Flock testified that the pipe in the Crown Royal bag was his, but that both he and Whited

told the troopers that     it   was    hers.      He testified further that although the methamphetamine was

his, he   and   Whited told the troopers that it          was    Whited'    s.   He admitted that he had never before


absolved Whited of responsibility for the methamphetamine or the pipe, but he maintained that

he was now telling the truth. Flock added that he and Whited were living in the car at the time of

the stop.

          The State   recalled     Trooper Santhuff           as a rebuttal witness.         Santhuff testified that Flock


told him that the methamphetamine and the pipe in the Crown Royal bag belonged to Whited.

During his testimony,           the State      played   the   videotape     of   the stop     for the   jury.    As it played,


Santhuff pointed out where Whited stated that the methamphetamine belonged to both her and


Flock.


          In its instructions to the jury, the trial court defined " possession" as follows:

                   Possession      means       having   a substance    in   one' s    custody   or control.     It may
          be   either actual or constructive.           Actual possession occurs when the item is in the
          actual   physical     custody      of   the   person    charged    with     possession.        Constructive
          possession occurs when there is no actual physical possession . but there is
          dominion and control over the substance.
                   Proximity alone without proof of dominion and control is insufficient to
          establish constructive possession. Dominion and control need not be exclusive to
          support a finding of constructive possession.
                 In deciding whether the defendant had dominion and control over a
          substance, you are to consider all the relevant circumstances                        in the   case.   Factors

          that you may consider, among others, include whether the defendant had the



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No. 44167 -5 -II



             immediate      ability     to    take     actual    possession       of    the   substance,   whether     the

             defendant had the capacity to exclude others from possession of the substance,
             and whether the defendant had dominion and control over the premises where the
             substance was        located.      No single one of these factors necessarily controls your
             decision.


Instruction 10, Suppl. Clerk' s Papers at 37.


             During closing argument, the State contended that Whited constructively possessed the

methamphetamine found in the car. In arguing that she exercised dominion and control over the

drugs, the State emphasized Whited' s statements in the video about the methamphetamine


belonging to both Flock and her, as well as her references to " my car" and her use of the vehicle.

1 RP   at     171 -74.   Defense counsel responded that the videotaped statements were not clear and


that any       references    to " my         car"    were casual statements that carried no significance because


Whited       was   merely    a passenger.            1 RP   at   191.       Defense 'counsel also argued that there was no


evidence of dominion and control because there was no evidence that Whited knew that Flock


had put drugs in the car.


             After the jury found Whited guilty as charged, the trial court imposed a first -ime
                                                                                            t

offender       sentence   that included 12              months      of      community custody.        One of the community

custody conditions stated as follows:

             The defendant shall not use, possess, manufacture or deliver controlled substances
             without a valid prescription, not associate with those who use, sell, possess, or
             manufacture      controlled            substances     and       submit    to   random   urinalysis   at   the

             direction of his /her [ Community Corrections Officer] to monitor compliance with
             this condition.


Clerk'   s   Papers ( CP)    at   11.   On appeal, Whited challenges this condition, as well as her


conviction for possessing methamphetamine.




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No. 44167 -5 -II



                                                             ANALYSIS


A.        INEFFECTIVE ASSISTANCE OF COUNSEL


          Whited argues that she received ineffective assistance of counsel when her attorney failed

to propose      a   jury    instruction        on   the   affirmative    defense   of   unwitting    possession.       Whether a


defendant received ineffective assistance of counsel is a mixed question of law and fact that we

review    de   novo.     State    v.   McLean, 178 Wn.         App.     236, 246, 313 P. 3d 1181 ( 2013), review denied,


179 Wn.2d 1026 ( 2014).                  To prove ineffective assistance, a defendant must show ( 1) that her

counsel' s performance was deficient and ( 2) that the deficient performance was prejudicial to

defendant'     s case.      State   v.   Hendrickson, 129 Wn.2d 61, 77 -78, 917 P. 2d 563 ( 1996). A failure to


satisfy   either     prong is fatal to         a claim of     ineffective    assistance of counsel.          McLean, 178 Wn.


App. at 246.

          When determining whether counsel' s performance was deficient, we begin with a strong

presumption         of counsel' s effectiveness.              State v. McFarland, 127 Wn.2d .322, 335, 899 P. 2d


1251 ( 1995).          Counsel' s performance is deficient if it falls below an objective standard of


reasonableness and cannot                 be   characterized as    legitimate trial strategy        or   tactics.   State v. Kyllo,


166 Wn.2d 856, 862 -63, 215 P. 3d 177 ( 2009).                           Prejudice occurs when there is a reasonable


probability that the trial' s result would have differed had the deficient performance not occurred.

Hendrickson, 129 Wn.2d at 78.


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

doubt that      she possessed methamphetamine.                     Guilty knowledge and intent are not elements of

this   crime.       State   v.   Cleppe, 96 Wn.2d 373, 379 -80, 635 P. 2d 435 ( 1981).                        To ameliorate the


harshness of the crime' s strict liability nature, a defendant may assert the affirmative defense of



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No. 44167 -5 -I1




unwitting     possession.    State   v.   Bradshaw, 152 Wn.2d 528, 538, 98 P. 3d 1190 ( 2004),               cert.




denied, 544 U. S. 922 ( 2005).       This defense assumes that the State has established a prima facie


showing     of . possession"
                 "               and requires the defendant to prove, by a preponderance of the

evidence, either that she did not know she was in possession of the controlled substance or that


she did not know the nature of the substance she 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).       A defendant satisfies her burden of proof by persuading the trier of fact that

her   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).


         As Whited asserts, each party is entitled to have the trial court instruct on its theory of the

case if there is evidence to support that theory. State v. Hughes, 106 Wn.2d 176, 191, 721 P.2d

902 ( 1986).       In evaluating whether evidence is sufficient to support an instruction on an

affirmative defense, the court must interpret the evidence in the defendant' s favor and must not


weigh   the   proof or   judge the   witnesses'     credibility.   State v. May, 100 Wn. App. 478, 482, 997

P. 2d 956,     review    denied, 142 Wn.2d 1004 ( 2000).                The affirmative defense of unwitting

possession " must be considered in light of all the evidence presented at trial, without regard to


which   party    presented   it." State   v.   Olinger, 130 Wn.     App.   22, 26, 121 P. 3d 724 ( 2005),   review



denied, 157 Wn.2d 1009 ( 2006).


         Whited testified that she did not know the drugs were in the car, and she denied having

any ownership interest in the        car.      In addition, Flock claimed exclusive ownership of the drugs.

Because this evidence was sufficient to support an instruction on unwitting possession and there

is no legitimate trial tactic evident on the record before us to support a decision to not request



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No. 44167 -5 -II



such an instruction, defense counsel was deficient in failing to propose such an instruction.

        But, based       on the record, we          do   not see   that this   deficiency    resulted    in    prejudice.    There


was strong evidence that Whited exercised dominion and control over the car and the

methamphetamine          it    contained.     See State      v.   Brett, 126 Wn.2d 136, 200, 892 P. 2d 29 ( 1995)


 given the weight of the evidence supporting premeditation, defendant failed to show reasonable

probability that the inclusion of a voluntary intoxication instruction would have changed the

outcome of    the   proceedings), cert.          denied, 516 U.S. 1121 ( 1996).             Whited told Trooper Santhuff


that the methamphetamine belonged to both her and Flock, and Flock told the trooper that the

methamphetamine               was      Whited.'s.         Although       Flock      later   testified     at     trial   that   the


methamphetamine belonged to him, he admitted that he was then claiming ownership for the first

time   and   only   after     his   own charges     had been       resolved.       Whited testified that she was unsure


whether she had admitted to joint ownership of the methamphetamine, but her admission was

recorded,    as   were   her        references   to the     vehicle    as "   my   car."    1 RP   at   57, 171 - 74.       Flock' s


testimony that he and Whited were living in the car at the time of the stop supported the State' s

theory that they shared possession of the drugs in the car. We see no reasonable probability that

an instruction on unwitting possession would have changed the trial' s result, and we reject

Whited' s claim of ineffective assistance of counsel.


B.       COMMUNITY CUSTODY CONDITION


         Whited also argues that the community custody . condition prohibiting her from

associating       with   those "      who   use,    sell,    possess,     or   manufacture     controlled        substances"      is


unconstitutionally       vague.       CP at 11.




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No. 44167 -5 -II



          A trial court has discretion to order an offender to refrain from contact with a specified

class   of   individuals        during    community custody.           RCW 9. 94A.703( 3)( b).             Such discretionary

conditions will be reversed only if their imposition is manifestly unreasonable. State v. Valencia,

169 Wn.2d 782, 791 -92, 239 P. 3d 1059 ( 2010). The imposition of an unconstitutional condition


is manifestly       unreasonable.         Valencia, 169 Wn.2d at 792.


          In challenging a condition of community custody, as opposed to a statute or ordinance,

the   challenger      does      not    have to   overcome       a presumption of            constitutionality.    Valencia, 169


Wn.2d     at   792.   A sentencing condition is not a law enacted by the legislature and does not have

the   same presumption of             validity. State    v.   Bahl, 164 Wn.2d 739, 753, 193 P. 3d 678 ( 2008). Nor


does the challenger need to demonstrate that the condition has been enforced; a pre- enforcement

challenge that turns on a question of law is ripe for review. Bahl, 164 Wn.2d at 752.


          The due process vagueness doctrine under the state and federal constitutions requires that


citizens have fair warning of proscribed conduct. Bahl, 164 Wn.2d at 752 ( citing WASH. CONST.

art   I, § 3;. U. S. CONST.,          amend.     XIV).   A sentencing condition is unconstitutionally vague if it

does not define the proscribed conduct with sufficient definiteness that ordinary people can

understand       what   is      prohibited.      Bahl, 164 Wn.2d            at   752 -53.     The requirement of sufficient


definiteness does not demand impossible standards of specificity or absolute agreement

concerning      a   term'   s   meaning;     some amount of        imprecision in the language is            allowed.      State v.


Coria, 120 Wn.2d 156, 163, 839 P. 2d 890 ( 1992);                      see also City ofSeattle v. Eze, 111 Wn.2d 22,

27, 759 P. 2d 366 ( 1988) (             statute is not unconstitutionally vague merely because person cannot

predict      with   complete          certainty the   exact    point   at   which     his    actions   would     be   classified   as
No. 44167 -5 -II



prohibited   conduct).        And, in      deciding    whether   a   term    is unconstitutionally   vague,      it is


considered in the context in which it is used. Bahl, 164 Wn.2d at 754.

        Whited contends that the order that she " not associate with those who use, sell, possess,


or manufacture controlled substances" is similar to a condition that was found unconstitutionally

vague   in Valencia.     There, the defendant was ordered not to possess or use " any paraphernalia

that can be used for the ingestion or processing of controlled substances or that can be used to

facilitate the   sale   or   transfer of   controlled   substances."        Valencia, 169 Wn.2d      at   785.   The


Supreme Court held that the          reference    to " any    paraphernalia"    failed to provide fair notice of


what the petitioners could and could not do and also failed to protect against arbitrary

enforcement.     Valencia, 169 Wn.2d at 794 -95.


        While acknowledging that the term " controlled substance" is defined by statute, Whited

contends that the language at issue is unconstitutionally vague because many controlled

substances   have legitimate       medical     uses.    She argues that the condition puts her at risk of


violation if she associates with a person who, unbeknownst to her, uses a legitimate, medically

prescribed controlled        substance   for   a medical purpose.      Whited also argues that this condition


prevents her from visiting a pharmacy to pick up a needed prescription.

        The State responds that the language Whited challenges must be read as part of the


broader condition that also prohibits her from using, possessing, manufacturing, or delivering

controlled substances without a valid prescription.              The State contends that when the additional


language prohibiting Whited from associating with those who use, sell, possess or manufacture

controlled substances is read in context, it dictates only that her association with illegal

substances and the abusers thereof is prohibited.




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No. 44167 -5 -I1



        We agree with the State that when the challenged language is read in context, ordinary

people can understand what      is   prohibited.   Any imprecision is not likely to expose Whited to

arrest, but if it does, she can explain that she was picking up a prescription at the pharmacy or

visiting a friend who had a medically prescribed controlled substance. See State v. Llamas -Villa,

67 Wn.   App.   448, 455 -56, 836 P. 2d 239 ( 1992) (     rejecting similar challenge after noting that if

the defendant was arrested for violating the condition, he would have an opportunity to assert

that he was not aware that the individuals with whom he had associated were using, possessing,

or dealing drugs).

        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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