      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



STATE OF WASHINGTON,                       j         No. 68518-0-1                     ip &..


                    Respondent,            )         DIVISION ONE
                                                                                  ^        CD,"'--"-.
              v.                           ]                                          CP    %S"
MARIO MORENO-CAZAREZ,                      ;         UNPUBLISHED


                    Appellant.              )        FILED: June 10. 2013




       Cox, J. — Mario Moreno-Cazarez appeals his conviction of possession of

methamphetamine, claiming he received ineffective assistance of counsel when

his attorney failed to propose an unwitting possession instruction. Because we

conclude that defense counsel made a legitimate tactical decision, we disagree

and affirm.

       Kent Police arrested Mark Vander for possession of methamphetamine

with the intent to deliver. In the presence of the police, Vander exchanged calls

with a certain cellular telephone number. Based on the calls, police approached

a white Chrysler Sebring in the parking lot of a Winco Food Store and arrested
the driver, who was Moreno-Cazarez, and the backseat passenger, Charles

Louder. In a search incident to arrest, an officer found a pipe of a type often

used with crack or methamphetamine in Louder's pocket.

       In a later search of the impounded Sebring, the police found a plastic bag

containing suspected methamphetamine on the floorboard behind the driver's
No. 68518-0-1/2


seat. The police also found four cell phones in the car, one of which had the

number associated with Vander's calls.

       The State initially charged Moreno-Cazarez with possession of

methamphetamine with intent to deliver. At a pretrial hearing, the trial court

addressed the State's request for disclosure of the defense. The court said to

defense counsel, "I saw in the omnibus order that there might be an unwitting

possession defense." Defense counsel responded, "That would only apply if this

case had been amended to a simple possession." After the court ruled on

certain evidentiary matters, the State amended the charge to possession of

methamphetamine.

       At trial, Detective Eric Steffes testified that he interviewed Moreno-

Cazarez at the jail after his arrest. According to Detective Steffes, Moreno-

Cazarez said he was at Winco to meet a guy named Bones and give him a ride

to meet a woman named Theresa. He said he did not know his passenger very

well and only knew him by his nickname, "Chalky." Moreno-Cazarez admitted

that he had purchased the Sebring a few weeks before. When Detective Steffes

asked whether there were any drugs in the car, Moreno-Cazarez told him "there

shouldn't be." Moreno-Cazarez also said there was a plastic bag in the trunk that

belonged to a woman named Jamie. When asked if the bag contained drugs,

Moreno-Cazarez responded, "No drugs that I know."

       After the State's last witness had testified, the trial court and the parties

reviewed the proposed jury instructions outside the presence of the jury. The

following exchange occurred:
No. 68518-0-1/3


      THE COURT: All right, 11 is the unwitting possession WPIC, this is
      WPIC 52.01, it was partly proposed by the defense but the defense
      did not include the second paragraph which is the burden of proof
      being on the defendant.

      [Defense Counsel]: Your Honor, I would prefer to not have the
      instruction at all if it's going to read the ... way the WPICs had it. I
      believe the instruction, I believe it shifts the burden to the defense
      to actually disprove dominion and control and I don't like that
      instruction, I'd like to withdraw the proposal.

      THE COURT: I think that this is a correct statement of the law and
      the other cases that were cited in the WPIC, they describe it as an
      affirmative defense but the defense has the burden of proof on -

      [Defense Counsel]: I agree those are the current laws and this is
      the correct instruction but I would rather not have it.[1]

      When the jury returned, the trial court informed the jury that the parties

had stipulated that the substance found in the plastic bag on the floorboard of the

Sebring was methamphetamine. The State rested. Then the defense rested

without calling any witnesses.

       In closing, the prosecutor argued that Moreno-Cazarez had constructive

possession of the methamphetamine because itwas in his car and immediately

behind his seat. Referring to the jury instructions, the prosecutor argued that

more than one person could possess a single thing at one time.

       Defense counsel argued that Moreno-Cazarez did not have dominion and

control over the methamphetamine because he didn't know what was going on

behind him. He argued that Louder alone had dominion and control over the

methamphetamine. Defense counsel concluded, "[W]e have a good case that




       1 Report of Proceedings (March 14, 2012) at 87-88.
No. 68518-0-1/4


Charles Louder possessed these drugs and [the State is] trying to include Mr.

Moreno-Cazarez in that because he was driving the car."

       In rebuttal, the prosecutor argued that the State did not have to prove that

Moreno-Cazarez knew of the methamphetamine or that he was the only person

with dominion and control over it.


       The jury found Moreno-Cazarez guilty and the trial court imposed a

standard range sentence.

       Moreno-Cazarez appeals.

                  INEFFECTIVE ASSISTANCE OF COUNSEL

       Moreno-Cazarez contends he received ineffective assistance of counsel

when his attorney failed to request an unwitting possession instruction. We

disagree.

       We review ineffective assistance of counsel claims de novo.2 To prevail,

a defendant must show that his counsel's performance fell below an objective

standard of reasonableness and that the deficient performance prejudiced his

trial.3 The reasonableness inquiry presumes effective representation and

requires the defendant to show the absence of legitimate strategic or tactical

reasons for the challenged conduct.4 To show prejudice, the defendant must
show that but for the deficient performance, there is a reasonable probability that




       2 In re Pers. Restraint of Brett, 142 Wn.2d 868, 873, 16 P.3d 601 (2001);
see also State v. White. 80 Wn. App. 406, 410, 907 P.2d 310(1995).
      ^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).
       4 McFarland, 127 Wn.2d at 336.
No. 68518-0-1/5


the outcome would have been different.5 Failure on either prong defeats a claim

of ineffective assistance of counsel.6

       The pattern jury instruction on unwitting possession provides:

             A person is not guilty of possession of a controlled
       substance if the possession is unwitting. Possession of a controlled
       substance is unwitting if a person [did not know that the substance
       was in [his][her] possession] [or][did not know the nature of the
       substance].

              The burden is on the defendant to prove by a preponderance
       of the evidence that the substance was possessed unwittingly.
       Preponderance of the evidence means that you must be persuaded,
       considering all of the evidence in the case, that it is more probably
       true than not true.[7]

       Unwitting possession is a judicially-created affirmative defense; it requires

the defendant to prove by a preponderance of the evidence circumstances

negating culpability that are "uniquely within his knowledge and ability to

establish."8

       Our review of the record indicates that defense counsel's decision to

withdraw his request for an unwitting possession instruction was a legitimate trial

tactic. As such, there is no basis for concluding that counsel's performance was

deficient.

        Based on his statements on the record, it is clear that defense counsel

understood the applicable law and that he correctly conceded that the above

instruction is a correct statement of the law. When it became clear that the trial


       5 In re Pers. Restraint of Pirtle. 136 Wn.2d 467, 487, 965 P.2d 593 (1998).
       6 Strickland, 466 U.S. at 697; State v. Foster, 140 Wn. App. 266, 273, 166
P.3d 726 (2007).
       711 Washington Practice: Washington Pattern Jury Instructions: Criminal
52.01 (3d ed. 2008).
       8 State v. Knapp. 54 Wn. App. 314, 317-22, 773 P.2d 134 (1989).
No. 68518-0-1/6


court was prepared to give the instruction, counsel made the strategic choice to

withdraw his request for the instruction. It is clear he did so based on his

concern regarding the defense's duty to carry its burden of proof.

             The evidence presented at trial regarding Moreno-Cazarez's knowledge

was limited to Detective Steffe's testimony. By not offering the unwitting

possession instruction, counsel was able to argue that Moreno-Cazarez didn't

know what was on the floor behind his seat without assuming any burden of

proof or unnecessarily risking confusing the jury with distinct burdens of proof.

Moreno-Cazarez's defense counsel's tactical decision to put the State to its

burden of proving possession was reasonable and not deficient.

             Moreno-Cazarez relies on State v. Thomas.9 That reliance is misplaced.

In Thomas, the defense theory of the case was that Thomas was too intoxicated

to have formed the subjective mental state of wanton or willful disregard of others

required to prove the charged crime.10 But defense counsel failed to propose
instructions indicating the subjective component of the law or the relevance of

intoxication to the mental element of the crime.11 The supreme court concluded
that defense counsel's performance was deficient because the lack of the proper

instructions allowed opposing counsel to argue conflicting rules of law to the
        12
jury.

             Here, the trial court properly instructed the jury on the law. Both the

prosecutor and defense counsel presented arguments consistent with the


             9 109 Wn.2d 222, 743 P.2d 816 (1987).
             10 Id, at 227.
             11 Id. at 228.
             12 Id.


                                               6
No. 68518-0-1/7


instructions requiring the State to prove possession beyond a reasonable doubt.

Thomas does not support Moreno-Cazarez's claim.

       Because Moreno-Cazarez fails to demonstrate defective performance of

his trial counsel, we need not address the prejudice prong of ineffective

assistance of counsel.

      We affirm the judgment and sentence.

                                                        £*, J"
WE CONCUR:




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