          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

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STATE OF WASHINGTON,                                  No. 71966-1-1              jc-
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                       Respondent,                    DIVISION ONE           en
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NAAMAN JAMAL WASHINGTON,                              UNPUBLISHED

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                       Appellant.                     FILED: August 11, 2014




          Cox, J. - Naaman Jamal Washington appeals his conviction of first degree

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

unlawful possession of a controlled substance (hydrocodone), and first degree

unlawful possession of a firearm. He fails in his burden to show that his trial

counsel was ineffective. The evidence was sufficient to prove unlawful

possession of a firearm. And the evidence was also sufficient to show his ability

to pay nonmandatory legal financial obligations at the time of sentencing. His

claims asserted in his statement of additional grounds do not warrant relief. We

affirm.


          On May 22, 2011, Washington was a passenger in the front seat of a car

that was driven by California Smith-Usher on Interstate 5. Washington State

Patrol Trooper, James Meldrum, conducted a random license plate check on the

car and saw that its owner's license was suspended.

          The description of the car's owner matched that of Smith-Usher, the

driver. Accordingly, the trooper pulled the car over in a no-park, tow-away zone

on the busy interstate. When he approached the vehicle, the trooper told Smith-
No. 71966-1-1/2



Usher and Washington that the stop was being audio and video recorded by

equipment in the trooper's car. The video recording of the events that followed

was admitted into evidence at the suppression hearing in this case.

       When Trooper Meldrum first spoke to the driver, he smelled the odor of

marijuana and saw a bag filled with "pre-packaged baggies of marijuana" sitting

at Washington's feet. Washington acknowledged that the bag contained

marijuana. He claimed that his possession of the drugs was legally authorized

because he was a designated provider for a medical marijuana patient. He gave

the trooper two documents to support his claim. They, too, were admitted into

evidence at the trial that followed.

       Trooper Meldrum stated that he believed the documents did not prove that

Washington's possession of the marijuana was authorized. He arrested

Washington for possession of marijuana. During a search incident to arrest,

Trooper Meldrum found a bottle with no label containing hydrocodone pills in

Washington's pocket.

       Other troopers arrived at the scene. Trooper Meldrum retrieved

Washington's wallet, cell phone, and the bag of marijuana from the front

passenger's side of the car. Trooper Collin Overend-Pearson assisted Trooper

Meldrum in preparing the car for impound.

       Jerry Clark, a private tow truck operator, impounded the car. Clark

conducted an impound inventory of the car and found two handguns. One gun

was inside the locked glove box, and the other gun was in the pocket of a jacket
No. 71966-1-1/3



on the rear seat. When Clark reported this to the authorities, Trooper Meldrum

came to where Clark was and seized the guns pursuant to a warrant.

       By amended information, the State charged Washington with unlawful

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

possession of a controlled substance (hydrocodone), and two counts of first

degree unlawful possession of a firearm, one for the gun in the glove

compartment and the other for the gun in the jacket.

       Washington's counsel moved to suppress the marijuana arguing that it

was the fruit of an unlawful search. The trial court denied this motion. It

concluded that the "troopers validly impounded defendants' [sic] car and they

lawfully conducted a pre-impound inventory search of the car."

       At trial, Washington's counsel moved to dismiss all of the charges after the

State rested. The trial court dismissed the unlawful possession of a firearm

charge for the gun in the glove compartment but submitted the other charges to

the jury.

       After the close of the evidence and before the jury began its deliberations,

the trial court read a stipulation to the jury. The stipulation was that Washington

"had previously been convicted of a felony, which is a serious offense." Among

the court's instructions to the jury was one on Washington's affirmative defense

regarding designated providers for medical marijuana patients.

        The jury convicted on all remaining charges. The trial court sentenced

Washington to confinement and imposed mandatory and nonmandatory legal

financial obligations.
No. 71966-1-1/4



      Washington appeals.

                  INEFFECTIVE ASSISTANCE OF COUNSEL

      Washington argues that his trial counsel was ineffective. Because he fails

in his burden to show that counsel's performance fell below an objective standard

of reasonableness, we disagree.

      A criminal defendant has the right to effective assistance of trial counsel

under the Sixth Amendment to the United States Constitution and article I,

section 22 of the Washington State Constitution.1 To prevail on a claim of

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

performance fell below an objective standard of reasonableness and that this

deficient performance prejudiced his trial.2

       There is a strong presumption of effective representation of counsel, and

the defendant must show that there was no legitimate strategic or tactical reason

for the challenged conduct.3 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.4 If we conclude that either prong has not

been met, we need not address the other prong.5



       1 State v. Hendrickson, 129 Wn.2d 61, 77, 917 P.2d 563 (1996).

       2 Strickland v. Washington. 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251
(1995).

       3 McFarland, 127 Wn.2d at 335-36.

       4 In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998).

       5 Strickland, 466 U.S. at 700.
No. 71966-1-1/5



                            Failure to Present Evidence

      Washington first argues that his counsel was ineffective because he failed

to present evidence during the suppression hearing that would have established

the "illegality of the marijuana seizure." He contends that this evidence, which

includes portions of a video recording showing the search, supported the

argument that Trooper Meldrum's marijuana seizure was not part of an inventory

search. We disagree.

       "Under the Fourth Amendment to the United States Constitution and

article I, section 7 of the Washington State Constitution, warrantless searches

and seizures are per se unreasonable, with few exceptions."6 One of the

exceptions is a "noninvestigatory inventory search" accompanying a lawful

vehicle impound.7 This search must be conducted in good faith.8 It cannot be a

pretext for an investigatory search.9

       "The principal purposes of an inventory search are to (1) protect the

vehicle owner's property; (2) protect the police against false claims of theft by the

owner; and (3) protect the police from potential danger."10

       Here, the trial court concluded that Trooper Meldrum and Trooper Pearson

"validly impounded defendants' car [sic] and they lawfully conducted a pre-

       6 State v. Green, 177 Wn. App. 332, 340, 312 P.3d 669 (2013).

       7 State v. Tyler, 177 Wn.2d 690, 701, 302 P.3d 165(2013).

       8 JdL

       9id,

       10 Green, 177 Wn. App. at 340.
No. 71966-1-1/6



impound inventory search of the car." To support this conclusion of law, it

entered the following finding of fact:

       Trooper Pearson arrived to assist. The troopers prepared the car
       for impound because Smith-Usher's car was in a no-park, tow-away
       zone. Trooper Meldrum retrieved defendant's wallet, cell phone,
       and the bag from the front passenger's side of the car. The
       marijuana was in a Taco Bell bag which held several separate pre
       packaged baggies of marijuana.111]

This unchallenged finding is a verity on appeal. Washington correctly argues that

he need not challenge this finding to argue that his trial counsel was ineffective.

       Specifically, Washington asserts that his trial counsel was deficient

because he did not point to particular portions of the video recording that would

support the argument that Trooper Meldrum was not conducting a good faith

inventory search when he retrieved the bag of marijuana. He asserts that

Trooper Meldrum was actually conducting an investigatory search when he

seized the bag.

       Given the strong presumption of effective representation, Washington fails

to show that his counsel was deficient for failing to point to certain portions of the

video recording. Our review of the record shows that portions of the recording

include the troopers' discussion about whether a warrant was needed; Trooper

Meldrum retrieving a wallet, cell phone, and the bag of marijuana from the car;

and Trooper Pearson separately walking around the car with a clipboard

inventorying the contents of the car.




       11
            Clerk's Papers at 189.



                                           6
No. 71966-1-1/7



       But these portions of the video recording do not support the argument that

Trooper Meldrum was conducting an investigatory search. Rather, the recording

shows that Trooper Meldrum and Trooper Pearson were jointly conducting in

good faith an inventory search prior to the vehicle being impounded. Based on

this record, an argument by counsel to the contrary would not have been

successful. Thus, Washington fails to show that his trial counsel's performance

was deficient for failing to point to certain portions of the recording. Because he

fails to show the first prong of the controlling test, we need not reach the second

prong, prejudice.

                        Failure to Propose a Jury Instruction

       Washington next argues that his counsel was ineffective for failing to

propose a jury instruction that would have supported his sole defense. We again

disagree.

       To establish ineffective assistance based on counsel's failure to request a

jury instruction, the defendant must show that he was entitled to the instruction,

counsel was deficient in failing to request it, and failure to request the instruction

caused prejudice.12

       Washington argues that his counsel was deficient because he failed to

propose a jury instruction that would have supported his designated provider
defense under the medical marijuana act. He asserts that his counsel "never

proposed an instruction that would have allowed the jury to acquit based on this


       12 Strickland, 466 U.S. at 687; State v. Johnston, 143 Wn. App. 1, 21, 177
P.3d 1127(2007).
No. 71966-1-1/8



defense." But Washington's counsel proposed an instruction stating an

affirmative defense to the only marijuana charge. Instruction 11 states:

       It is a defense to a charge of delivery of marijuana that:

       (1) the defendant is eighteen years of age or older; and

       (2) the defendant was designated as a designated provider to a
       qualifying patient prior to assisting the patient with the medical use
       of marijuana; and

       (3) the defendant possessed no more marijuana than necessary for
       the qualifying patient's personal, medical use for a sixty-day period;
       and


       (4) the defendant presented a copy of the qualifying patient's valid
       documentation to any law enforcement official who requested such
       information; and

       (5) the defendant did not consume any of the marijuana obtained
       for the personal, medical use of the qualifying patient for whom the
       defendant is acting as designated provider; and

       (6) the defendant was the designated provider to only one
       qualifying patient at any one time.

       The defendant has the burden proving this defense by a
       preponderance of the evidence. Preponderance of the evidence
       means that you must be persuaded, considering all the evidence in
       the case, that it is more probably true than not true. If you find that
       the defendant has established this defense, it will be your duty to
       return a verdict of not guilty as to this charge.1131

While the charge in this jury instruction, "delivery of marijuana," is not the charge

in this case, "possession of marijuana with intent to deliver," the trial court, the

prosecutor, and defense counsel treated this jury instruction as providing

Washington with an affirmative defense to his only marijuana charge.




       13 Clerk's Papers at 117 (emphasis added).



                                            8
No. 71966-1-1/9



       The trial court stated that the medical marijuana defense instruction

should be given based on the evidence presented at trial. It further explained

that whether Washington "met the required elements on his burden of proof" was

an issue for the jury. During closing argument, both the prosecutor and defense

counsel argued whether Washington met these required elements. Thus,

Washington has failed to show that his trial counsel's performance was deficient

for failing to propose an instruction supporting his affirmative defense.

       Washington acknowledges that Instruction 11 is "similarly worded" to the

affirmative defense for possession of marijuana with intent to deliver. But

Washington fails to persuasively explain how a differently worded instruction

would have resulted in a different outcome at trial.

       In his opening brief, Washington cites State v. Brown for the elements of

the affirmative defense for possession of marijuana.14 But that case does not

provide all of the elements for the defense. Rather, it merely states the statutory

definition for "designated provider."15

       According to the Washington Pattern Jury Instructions: Criminal 52.11, the

medical marijuana defense instruction for "possession," "delivery," and

"manufacture" of marijuana is the same.16 Thus, Washington's counsel proposed

a jury instruction that would have allowed the jury to acquit Washington.

       14 Appellant's Opening Brief at 22-23 (citing State v. Brown, 166 Wn. App.
99, 102-03, 269 P.3d 359 (2012)).

       15 Brown, 166 Wn. App. at 102-03 (citing RCW 69.51A.010(1)).

       1611 Washington Practice: Washington Pattern Jury Instructions:
Criminal 52.11 (3d ed. 2008) (citing RCW69.51A.040(3); RCW69.51A.010(1)).
No. 71966-1-1/10



Moreover, given the way the parties treated Instruction 11, there is no reason to

believe that the jury did not consider whether Washington met the elements for

the affirmative defense to the marijuana charge.

       The State contends that Washington failed to put forth sufficient evidence

to show that he was entitled to the affirmative defense instruction. Because of

our resolution of the ineffective assistance of counsel issue, we need not address

this argument.

                          SUFFICIENCY OF EVIDENCE

       Washington argues that there was insufficient evidence to support his first

degree unlawful possession of a firearm conviction. Specifically, he contends

that a limiting instruction prevented the jury from considering a stipulation to

prove that Washington had been previously convicted of a serious offense. He is

mistaken.


       "Jury instructions, when not objected to, become the law of the case."17 "A

defendant may assign error to elements added under the law of the case

doctrine, and that assignment 'may include a challenge to the sufficiency of

evidence of the added element.'"18




       17 State v. Ortega, 134 Wn. App. 617, 622, 142 P.3d 175 (2006), review
denied, 160 Wn.2d 1016 (2007).

       18 jdL (quoting State v. Hickman, 135 Wn.2d 97, 102, 954 P.2d 900
(1998)).



                                          10
No. 71966-1-1/11



       In State v. Ortega, this court considered whether a limiting instruction

prevented the jury from considering a stipulation regarding prior convictions.19

There, the parties agreed that "prior convictions were elements that had to be

proved to the jury."20 Consequently, the State "introduced proof in the form of a

stipulation informing the jury that [Reynaldo] Ortega had been convicted in 1997

on two counts of protection order violations."21

       During the trial, the court gave a limiting instruction because it admitted

evidence of a 2004 conviction.22 The limiting instruction stated, "Evidence that

the defendant has previously been convicted of a crime is not evidence of the

defendant's guilt. Such evidence may be considered by you in deciding what

weight or credibility should be given to the testimony of the defendant and for no

other purpose."23

       This court concluded that "[e]ven if the limiting instruction became the law

of this case as to the 1997 convictions, it did not deprive the jury of sufficient

evidence upon which to find that Ortega had been twice convicted in the past."24

The court explained:



       19134 Wn. App. 617, 621-22, 142 P.3d 175 (2006), review denied, 160
Wn.2d 1016 (2007).

       20 id, at 621.

       21JU

       22 JU

       23 jd,

       24 Id. at 622.



                                          11
No. 71966-1-1/12



       The limiting instruction required the jury to consider "evidence of a
       prior conviction" for no purpose other than evaluating the weight
       and credibility of Ortega's testimony. To use the prior convictions
       for the purpose of evaluating Ortega's testimony, the jury would first
       have to find that those prior convictions existed. The jury could
       properly consider the stipulation as evidence of the existence of the
       two prior convictions. This is the finding they made when they filled
       out the special verdict form. Having found that the 1997
       convictions did exist, the jury would then follow the limiting
       instructions and not consider the 1997 convictions as evidence of
       Ortega's guilt on the three charges for which he was on trial.[25]

       Here, a similar conclusion is appropriate. The parties entered into a

written stipulation that Washington "had previously been convicted of a felony,

which is a serious offense." The trial court read this stipulation to the jury before

it read the jury instructions. The jury instructions included a limiting instruction

that stated, "You may consider evidence that the defendant has been convicted

of a crime only in deciding what weight or credibility to give to the defendant's

testimony, and for no other purpose." To use the prior conviction for the purpose

of evaluating Washington's testimony, the jury would first have to find that the

prior conviction existed. The jury could properly consider the stipulation as

evidence that Washington had been previously convicted of a serious offense to

prove that element of unlawful possession of a firearm. Then, the jury would

follow the limiting instruction and not consider the prior conviction for any other

purpose.

       Washington argues that Ortega should not control this case because it is

factually distinguishable and logically infirm. We disagree and conclude that

Ortega controls.


       25
            Id.




                                          12
No. 71966-1-1/13



       While Ortega involved multiple prior convictions and this case involved

only one prior conviction, this factual distinction does not change the result.

Washington asserts that "evidence was introduced here as to only one

conviction, and the limiting instruction therefore cannot be interpreted to apply to

anything but the evidence of that one conviction." But, as just discussed, the

limiting instruction can apply after the jury considers the stipulation as evidence

that Washington had been previously convicted of a serious offense.

Washington fails to cite any authority that casts doubt on Ortega's analysis.

Thus, Ortega controls this case, and we reject Washington's challenge to the

sufficiency of the evidence.

       The State argues that Washington is "precluded from bringing a claim that

there was not sufficient evidence of that element" because he stipulated that he

had been previously convicted of a serious offense. Thus, the State contends

that Washington waived his right to hold the State to its burden of proof as to that

element. But given the previous discussion, we need not address this argument.

                       LEGAL FINANCIAL OBLIGATIONS

       Washington challenges the trial court's imposition of $250 in

nonmandatory legal financial obligations. In the judgment and sentence, the trial

court made a finding that Washington "has the ability or likely future ability to pay

the legal financial obligations imposed herein." Washington argues that this

finding is not supported by sufficient evidence in the record. We disagree.

       "Under RCW 10.01.160(3), '[t]he court shall not order a defendant to pay

costs unless the defendant is or will be able to pay them. In determining the



                                         13
No. 71966-1-1/14



amount and method of payment of costs, the court shall take account of the

financial resources of the defendant and the nature of the burden that payment of

costs will impose.'"26

       Here, the trial court made the following finding:

       ABILITY TO PAY LEGAL FINANCIAL OBLIGATIONS. The court
       has considered the total amount owing, the defendant's past,
       present and future ability pay legal financial obligations, including
       the defendant's financial resources and the likelihood that the
       defendant's status will change. The court finds that the defendant
       has the ability or likely future ability to pay the legal financial
       obligations imposed herein. RCW 9.94A.753.[27]

       First, we question whether Washington can raise this issue for the first

time on appeal under RAP 2.5(a).28 But even if he can raise this issue, sufficient

evidence supports the trial court's finding.

       In State v. Calvin, this court explained that "[w]e review the trial court's

decision to impose discretionary financial obligations under the clearly erroneous

standard."29 "'A finding of fact is clearly erroneous when, although there is some


        26 State v. Calvin,  Wn. App.      , 316 P.3d 496, 507 (2013) (alteration
in original) (quoting RCW 10.01.160(3)), petition for review filed, No. 89518-0
(Wash. Nov. 12,2013).

       27 Clerk's Papers at 170.

        28 See Calvin, 316 P.3d at 507 ("[T]he sentencing court's consideration of
the defendant's ability to pay is not constitutionally required. Accordingly, the
issue raised by Calvin is not one of constitutional magnitude that can be raised
for the first time on appeal under RAP 2.5(a).") (citations omitted); State v.
Blazina, 174 Wn. App. 906, 911, 301 P.3d 492 ("While we addressed the finding
of current or future ability to pay in Bertrand for the first time on appeal under
RAP 2.5(a), that rule does not compel us to do so in every case."), review
granted, 178 Wn.2d 1010 (2013).

       29     Wn. App.       , 316 P.3d 496, 508 n.1 (2013).


                                          14
No. 71966-1-1/15



evidence to support it, review of all the evidence leads to a 'definite and firm

conviction that a mistake has been committed.'"30

       Here, Washington testified at trial that he was a mechanic and owned his

own mechanic business. He presented no evidence of any disability that would

limit his ability to work in the future. Additionally, at the sentencing hearing, the

trial court determined that Washington had retained, not appointed, counsel at

trial. These facts are sufficient to support the challenged finding under the clearly

erroneous standard.31

       We also note that the trial court must again consider Washington's ability

to pay when the State seeks to enforce the payment of the legal financial

obligations.32 Thus, Washington will have the ability to raise the issue again, if

appropriate.

       Washington relies on an earlier version of State v. Calvin to request that

we strike the finding that Washington had the ability to pay the nonmandatory

obligation.33 But that version was amended on reconsideration.34 Accordingly,

we reject this argument.



       30 Id (quoting Schrvvers v. Coulee Cmtv. Hosp., 138 Wn. App. 648, 654,
158P.3d 113(2007)).

       31 See Calvin, 316 P.3d at 507.

       32 State v. Blank, 131 Wn.2d 230, 242, 930 P.2d 1213 (1997); State v.
Baldwin, 63 Wn. App. 303, 310-11, 818 P.2d 1116 (1991).

      33 Appellant's Opening Brief at 34 (citing State v. Calvin, 176 Wn. App. 1,
302 P.3d 509, amended on recons.,        Wn. App.       , 316 P.3d 496 (2013)).

       34 See Calvin, 316 P.3d at 507-08.



                                          15
No. 71966-1-1/16



                   STATEMENT OF ADDITIONAL GROUNDS

      Washington raises several issues in his statement of additional grounds.

None have merit.


       First, Washington argues that his counsel was ineffective because he

failed to call witnesses and present evidence to support Washington's affirmative

defense for the unlawful possession of marijuana charge. But Washington's

counsel submitted into evidence the documentation that Washington had to

support the defense, and the trial court admitted this evidence. Moreover,

Washington testified about the validity of these documents. Washington fails to

specify what other witnesses should have been called and how they would have

further supported his defense. "'Generally the decision whether to call a

particular witness is a matter for differences of opinion and therefore presumed to

be a matter of legitimate trial tactics.'"35 Such tactics do not amount to deficient

performance.

       Additionally, Washington asserts that his counsel failed to move to dismiss

Washington's marijuana charge. But defense counsel moved to dismiss the

marijuana charge, and the trial court denied this motion for this charge.

       Given this record, Washington fails to show that his counsel's

performance fell below an objective standard of reasonableness and that this

prejudiced his trial. Thus, these claims fail.



       35 In re Pers. Restraint of Morris, 176Wn.2d 157, 171.288P.3d 1140
(2012) (quoting In re Pers. Restraint of Davis, 152 Wn.2d 647, 742, 101 P.3d 1
(2004)).



                                          16
No. 71966-1-1/17



       Second, Washington contends that his two 2009 convictions for

conspiracy to commit a violation and violation of the Uniform Controlled

Substance Act encompassed the same criminal conduct and should have

counted as one conviction in his offender score. Although a criminal defendant

may challenge an offender score for the first time on appeal, a defendant waives

that right when the alleged error is based on a factual dispute or trial court

discretion.36 Where a defendant is convicted of more than one crime, the trial

court must make both factual and discretionary decisions in determining whether

those crimes arose from the same criminal conduct.37 Thus, by failing to raise

the issue of same criminal conduct at sentencing, a defendant waives the right to

argue that issue on appeal.38 Because Washington did not argue at sentencing

that his offenses constituted the same criminal conduct, he cannot raise this

issue for the first time on appeal.

       Third, Washington asserts that there was insufficient evidence to support

his first degree unlawful possession of a firearm conviction. Specifically, he

contends, without citation to authority, that there was no evidence proving that he

had prior notice that he was prohibited from possessing a firearm. The failure to

cite authority in support of this argument would generally warrant no further

consideration of it. Nevertheless, in State v. Breitung, the supreme court


      36 State v. Graciano, 176 Wn.2d 531, 538-39, 295 P.3d 219 (2013); Inre
Pers. Restraint of Goodwin, 146 Wn.2d 861, 874, 50 P.3d 618 (2002).

       37 State v. Nitsch, 100 Wn. App. 512, 523, 997 P.2d 1000 (2000).

       38 State v. Jackson, 150 Wn. App. 877, 892, 209 P.3d 553 (2009); Inre
Pers. Restraint of Shale, 160 Wn.2d 489, 496, 158 P.3d 588 (2007).



                                          17
No. 71966-1-1/18



explained that RCW 9.41.047(1) "requires a convicting court to give notice of the

prohibition of the right to possess firearms."39 But it also stated that "[l]ack of

notice under RCW 9.41.047(1) is an affirmative defense, which [a defendant]

must establish by a preponderance of the evidence."40 Here, Washington did not

assert this affirmative defense at trial. Thus, we will not consider this claim any

further.


       We affirm the judgment and sentence.

                                                             fexx.
WE CONCUR:




  \f\ cXqn( ^ T




       39 173 Wn.2d 393, 401, 267 P.3d 1012 (2011).

       40 Id, at 403.

                                          18
