                                                                                                                        FILED .
                                                                                                                   COURT OF APP{            S
                                                                                                                         DIVISIONii
                                                                                                                  201 JUN 24
                                                                                                                                     AM 9: 03

       IN THE COURT OF APPEALS OF THE STATE OF WASHING                                                                          AS '    GTO1


                                                         DIVISION II

STATE OF WASHINGTON,                                                                 No. 43996 -4 -II


                                               Respondent,


            v.



WILLIAM B. SHOWERS,                                                            UNPUBLISHED OPINION


                                               Appellant.


            HUNT, J. —               William B. Showers appeals his bench trial conviction for possession with


intent to deliver heroin,                 possession of methamphetamine, and        attempting to    elude.         He argues


that ( 1)    insufficient            evidence supports   his   possession convictions; (   2) the warrantless search of


the backpacks found in his truck bed violated his rights under the Fourth Amendment) and article

                 72; (

1,   section             3)   admission of      improper    opinion   testimony denied him his   right   to   a   fair trial; ( 4)


defense counsel' s failure to seek suppression of evidence and to object to improper opinion


testimony constituted ineffective assistance; and ( 5) he ( Showers) did not validly waive his state

constitutional right to trial by jury. We affirm.

                                                                FACTS


                                                               I. CRIMES


            On July 6, 2012, City of Raymond Police Officer Eric Fuller observed a pickup truck

traveling with a defective windshield and without a front license plate; William B. Showers was



1 U.S. CONST. amend. IV.
2
     WASH. CONST.             art.   I, § 7.
No. 43996 -4 -II



later identified as the driver. Fuller observed Showers exit the highway and turn into the town of

Raymond.        Following Showers, Fuller observed him drive through a stop sign before pulling up

to a curb, where a female exited from the passenger side, put on a backpack and a baseball cap,

and walked      away   at a   fast   pace,     pulling the baseball cap down           over     her face.   Showers quickly

drove away from the curb.

          Fuller followed       and      activated       his emergency lights to stop Showers.                   But Showers


accelerated to approximately 50 MPH in a 25 MPH zone, turned onto Highway 101 at a speed that

caused the pickup to sway, and spun the pickup in a complete 360 -degree turn in the middle of

Highway     101 before coming to             a   stop,   facing    the   opposite   direction   of   traffic.   Pacific County

Sheriff' s Deputy Jonathon Ashley observed the pickup' s spinout and had to brake and to pull

over   to the   highway   shoulder        to     avoid   hitting   the pickup.      As Fuller pulled up to the stopped

pickup, Showers revved the pickup' s engine and sped off past Fuller into the oncoming lane of

traffic, heading back towards Raymond. Fuller followed Showers; Ashley joined the pursuit.

          Off - uty City of Cosmopolis Police Deputy Chief Heath Laymen observed Showers and
              d

the   officers enter and exit        Highway        101.    Sitting in his open Jeep outside a Raymond printing

shop near the Highway 101 merge lane, Laymen observed Showers drive past the printing shop

at an estimated 60 MPH in a 25 MPH zone and travel into oncoming traffic, causing at least one

vehicle   to brake to     avoid      a   head -on    collision with       Showers.     Laymen observed Fuller' s fully

marked police car attempting to stop the pickup with its activated sirens and lights; Laymen later

identified the pickup' s driver as Showers.

          Showers sped through Raymond at an estimated 50 -60 MPH in a 25 MPH zone, driving

through at      least two stop   signs.        Standing in a park next to the fire station, City of Raymond Fire



                                                                   2
No. 43996 -4 -II



Department paramedic William Didion heard tires screeching, saw Showers drive through the

park directly towards him, and ran out of Showers' path to avoid being struck.

         Fuller followed Showers traveling down . an alley at more than 20 MPH over the

alleyway' s safe speed limit toward a child sweeping rocks and garbage in front of an auto parts

store.   The child' s father heard tires squeal, ran out into the alley to find Showers' pickup a foot

away from his child, and immediately pulled his child out of Showers' path.

         Fuller continued to follow Showers out of the alley onto Alder Street and proceeded to

the intersection of Second and Blake Streets, hoping to intercept Showers but could not locate

him.     Fuller stopped at the intersection of Second and Alder Streets, looked to the left, and


observed the pickup abandoned in the middle of the street, with the driver' s door open. Officers

approached the pickup to ensure it was unoccupied, took the keys from the ignition so it could

not   be driven,   and   then began searching for Showers.            Citizens in the area pointed and directed

the officers to a local establishment, where a sweaty, out -of-breath, shirtless Showers was hiding

in the restroom. The officers took Showers into custody.

          Showers'    Community       Corrections Officer ( CCO), Linda Tolliver, was called to the


scene, where she observed Showers in the back of a police vehicle and his pickup truck with its

doors    open.     In her capacity as Showers' CCO, Tolliver searched the pickup, located several

backpacks in the bed       of   the truck,   and, with   Fuller' s   assistance, searched   the backpacks3; inside




3
    See RCW 9. 94A.631( 1): "       If there is reasonable cause to believe that an offender has violated a
condition or requirement of the sentence, a community corrections officer may require an
offender to submit to a search and seizure of the offender' s person, residence, automobile, or
other personal property."




                                                            3
No. 43996 -441



the backpacks they found heroin, two scales, several small plastic baggies, methamphetamine, a

pipe and hypodermic needles.


                                                          II. PROCEDURE


            The State charged Showers with possession of heroin with intent to deliver, possession of


methamphetamine, and                attempting to      elude a     pursuing      police vehicle.           Showers waived his right


to   a   jury   trial and   elected a     bench trial.    At a pretrial hearing, the trial court reviewed the written

waiver that Showers had signed in consultation with his counsel, engaged in a colloquy with

Showers about this waiver, and ruled that Showers understood his right to a jury trial and that his

waiver of his right to a jury trial was knowing, intelligent, and voluntary.

            At trial, three law enforcement officers testified that Showers had driven in a " reckless"


manner as          previously described.          The trial court found Showers guilty of possession of heroin

with intent to deliver, possession of methamphetamine, and attempting to elude a pursuing police

vehicle.         Showers appeals.


                                                               ANALYSIS


                                                    I. JURY TRIAL WAIVER


            Showers       contends       that he did   not     validly      waive   his   right   to   a   jury   trial.   This argument


fails.


            Washington law requires that a defendant personally express a waiver of his or her jury

trial    right    in   order   for the   waiver   to be   valid.   State v. Pierce, 134 Wn. App. 763, 771, 142 P. 3d

610 ( 2006). But Washington law does not require the trial court to conduct an extensive on -
                                                                                            the-


record colloquy with the defendant before determining whether the defendant validly waived his

jury     trial   right.   Pierce, 134 Wn.         App.    at   771. "       As a result, the right to a jury trial is easier to



                                                                        4
No. 43996 -4 -II



waive      than   other constitutional rights."              State v. Benitez, 175 Wn. App. 116, 129, 302 P. 3d 877

 2013).


           We     review     de   novo   the validity of       a   jury    trial   waiver.   State v. Ramirez- Dominguez, 140


Wn.   App.    233, 239, 165 P. 3d 391 ( 2007).                A defendant' s waiver of his or her jury trial right must

be made knowingly, intelligently, voluntarily, and without improper influences. State v. Stegall,

124 Wn.2d 719, 724 -25, 881 P. 2d 979 ( 1994).                             A written jury trial waiver " is strong evidence

that the defendant validly               waived       the   jury   trial    right."    Pierce, 134 Wn.        App.   at   771. "   An


attorney' s representation that the defendant' s waiver is knowing, intelligent, and voluntary is

also relevant" to a determination of whether the defendant' s jury trial waiver was valid. Benitez,

175 Wn.       App.     at    128 ( citing Pierce, 134 Wn.            App.      at   771).    Additionally, we consider whether

the trial court informed the defendant of his or her jury trial right. Pierce, 134 Wn. App. at 771.

            Showers argues that under article I, sections 21 and 22 of the Washington Constitution,


 a valid waiver of the state constitutional right to a jury trial requires a thorough understanding

of   the   right."    Br.    of   Appellant at 32.          He argues that because the record does not prove that he


thoroughly understood the right and the practical and legal consequences of his waiver, his
waiver      was      not    knowing,     intelligent,       and    voluntary.         Showers also asks us to overrule our


recently affirmed jury trial waiver opinions in Benitez and Pierce, both upholding jury trial

waivers in similar circumstances.

                                                      Gunwall4

            Showers         argues   that the   six                 factors establish that waiver of a jury trial under the

state constitution requires a            higher showing than               waiver under       the federal   constitution.    Showers


recognizes that we recently rejected this same argument in Pierce and Benitez, but he argues

4 State v. Gunwall, 106. Wn.2d 54, 720 P. 2d 808 ( 1986).



                                                                       5
No. 43996 -4 -II



these cases   were   wrongly decided           and   should   be    overturned.    We rejected this argument in


Pierce and Benitez because, in those cases, the defendants' reliance on Gunwall was misplaced.


And we decline to revisit or to overrule those cases here.


        Showers    presented    the trial     court with a written       waiver   of   his   jury    trial   right.      The trial

                                         him5,
court conducted a    colloquy    with            ensuring that ( 1) he    understood         his   right   to   a   jury trial, ( 2)

he had discussed the matter with his attorney so he understood what he was waiving, and ( 3) his

request was   voluntary.      These procedures show that Showers personally expressed his desire to

waive his jury trial right and that his waiver was knowing, intelligent, and voluntary. The record

supports the trial court' s ruling that Showers validly waived his right to a jury trial.



5 The trial court questioned Showers to be sure he was knowingly, voluntarily, and intelligently
waiving his right to a trial by jury:
        THE COURT: ...               Mr. Showers, I know Mr. Hatch reviewed this with you but
        I' m asking you at this time, the Waiver of Jury Trial means that you' re giving up
        your constitutional right to have 12 people sit over there to your left and decide
        whether to acquit you or whether to find you guilty of the crime that the State has
        charged.  You' re giving up that right and if I find that you' re doing this
        knowingly, intelligently, and voluntarily and I certify this, then in very plain,
        simple vernacular, you' re stuck with me or whichever judge hears that case. It' s a
        one -
            way street.       I know     you   know this.         I' m just making sure that is what your
        understanding is at this present time.
         SHOWERS]:          Yes, sir.
        THE COURT:           Very     well.    And are you in agreement with the Waiver of Jury
        Trial?
         SHOWERS]:          I am.
        THE COURT:      Did you sign it only after you reviewed it with your attorney so
        you were certain you knew what you were signing?
         SHOWERS]:          Yes, sir.
        THE COURT: Very well. Thank you. Did you sign of your own free will?
         SHOWERS]:          I did.
        THE COURT: Any threats or coercion?
         SHOWERS]: No.
        THE COURT: Very well.
Verbatim Report      of   Proceedings ( VRP) ( Aug.      31, 2012) at 3 -4.



                                                              6
No. 43996 -4 -II


                                                 II. WARRANTLESS SEARCH


          For the first time on appeal, Showers challenges the warrantless search of the backpacks

                                   Amendment6                                              7
under    both the Fourth                             and article       1,   section   7,       arguing that the officers unlawfully

searched his vehicle without a search warrant. At trial, however, Showers neither filed a motion

to suppress nor challenged the lawfulness of the vehicle search and the seizure of evidence from

the    vehicle.    Because Showers failed to raise these arguments below, there was no suppression

hearing and no record developed on which we can review these first time challenges.

           A party must raise an issue at trial to preserve it for appeal, unless the party can show the

presence of a "` manifest error               affecting      a constitutional right '                under   RAP 2. 5(   a)(   3).   State v.


Kirwin, 165 Wn.2d 818, 823, 203 P. 3d 1044 ( 2009) (                              quoting State v. McFarland, 127 Wn.2d

322, 333, 899 P. 2d 1251 ( 1995))..                   Issue      preservation         rules "        encourage ` the efficient use of


judicial      resources' ...       by ensuring that the trial court has the opportunity to correct any errors,

thereby avoiding unnecessary                 appeals."      State v. Robinson, 171 Wn.2d 292, 304 -05, 253 P. 3d 84


    2011) (   quoting State v. Scott, 110 Wn.2d 682, 685, 757 P. 2d 492 ( 1988)).

              Courts employs a two -
                                   pronged analysis to determine whether a non -
                                                                               preserved error is a

    manifest error      affecting       a constitutional right" under            RAP 2. 5( a). See State v. Grimes, 165 Wn.


App.     172, 179 -80, 267 P. 3d 454 ( 2011).                First, the court must determine whether an alleged error


6
      The Fourth Amendment to the United                                States    Constitution protects             individuals         from
unreasonable searches and seizures. U. S. CONST. amend IV.

7
     Article I,   section     7   of   the Washington Constitution provides: "                       No person shall be disturbed in
his    private affairs,       or   his home invaded,          without
                                                                 authority        WASH. CONST. art. I, § 7.
                                                                                               of   law."
Article I,      section   7   requires " no     less" than the Fourth Amendment. State v. Patton, 167 Wn.2d
379, 394, 219 P. 3d 651 ( 2009).                A valid warrant, subject to a few jealously guarded exceptions,
establishes       the   requisite "`     authority   of   law. "' State v. Afana, 169 Wn.2d 169, 176 -77, 233 P. 3d
879 ( 2010) ( quoting WASH. CONST.                   art.   I, § 7).




                                                                        7
No. 43996 -4 -II



is truly constitutional; second, the court must determine whether the alleged error is " manifest."

Grimes, 165 Wn.      App.    at   180.    Showers' challenge to the legality of the search and seizure of the

drug   evidence   from his pickup is            constitutional         in   nature.     Thus, we turn to the manifest error


prong of the test.

        A   constitutional error         is "   manifest"      if it   caused actual prejudice.            State v. O' Hara, 167


Wn.2d 91, 99, 217 P. 3d 756 ( 2009); State v. Gordon, 172 Wn.2d 671, 676, 260 P. 3d 884 ( 2011).


To demonstrate actual prejudice, the appellant must plausibly show that the asserted error had

practical and   identifiable      consequences        at    trial.     O' Hara, 167 Wn.2d             at   99.   Because Showers


fails to show such consequences, he fails to show that alleged constitutional error is manifest.


O' Hara, 167 Wn. 2d     at   99; McFarland, 127 Wn.2d                       at   333.   Holding that Showers cannot argue

for the first time on appeal that the search and seizure of evidence were illegal, we do not further

address this issue. 8 RAP 2. 5( a).

                                                 III. SUFFICIENT EVIDENCE


         Showers contends that sufficient evidence does not support his convictions for drug

possession because ( 1) the State failed to demonstrate that he had dominion and control over the


drugs; and ( 2) the trial court' s findings of fact were insufficient to support the legal conclusion

that he had possessed the drugs. We disagree.

                                                  A. Standard of Review


         Evidence is   sufficient         to    support    a    conviction        if, "after viewing the evidence and all


reasonable inferences from it in the light most favorable to the State, a rational trier of fact could



8
    Were we to address this claim, Showers' argument would fail because the search was pre -
authorized as a condition of        Showers' community custody                        and   did   not require a search warrant.
No. 43996 -4 -II



find   each element      of the   crime    proven beyond       a reasonable    doubt."   State v. Homan, 172 Wn.


App.   488, 490 -91, 290 P. 3d 1041 ( 2012) (              citing State v. Green, 94 Wn.2d 216, 221, 616 P. 2d

628 ( 1980)),    review granted,        177 Wn.2d 1022 ( 2013). "         A claim of insufficiency admits the truth

of   the State' s evidence and all inferences that reasonably                 can   be drawn therefrom."     State v.


Salinas, 119 Wn.2d 192, 201,                829 P. 2d 1068 ( 1992). "         Circumstantial evidence and direct


evidence are     equally      reliable."   State v. Moles, 130 Wn. App. 461, 465, 123 P. 3d 132 ( 2005)

 citing 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.   Thomas, 150 Wn.2d 821, 874 - 75, 83 P. 3d 970 ( 2004) (             citing State v. Cord,

103 Wn.2d 361, 367, 693 P. 2d 81 ( 1985)).


         Where, as here, the defendant is tried by a court sitting without a jury, our review is

limited to determining whether substantial evidence supports the trial court' s findings of fact and

whether   these findings        support    its   conclusions of    law.   State v. Stevenson, 128 Wn. App. 179,

193, 114 P. 3d 699 ( 2005).          We consider unchallenged findings of fact as verities on appeal. Id.

We review conclusions of law de novo. Id.


                                                         B. Analysis

                                                 1.   Constructive possession


         Showers contends that the State failed to demonstrate that he had dominion and control


over   the drugs.       The State counters that as the driver and sole occupant of the pickup, Showers

constructively        possessed   the   drugs found in the backpacks in the pickup'          s   bed. We agree with


the State.




                                                               9
No. 43996 - -II
          4



             To establish Showers' guilt, the State had to prove beyond a reasonable doubt that he

                                                                                      9
possessed        a    controlled     substance.            RCW    69. 50. 4013( 1).       Possession      can be     actual    or


constructive.         State   v.   Callahan, 77 Wn. 2d 27, 29, 459 P. 2d 400 ( 1969); State v. George, 146


Wn.    App.     906, 920, 193 P. 3d 693 ( 2008).                A person has actual possession when he or she has


physical custody of the item and constructive possession when he or she has dominion and

control over         the   item.   State    v.   Jones, 146 Wn.2d 328, 333, 45 P. 3d 1062 ( 2002).                   Whether a


person had dominion and control over an item depends on the totality of the circumstances.

State v. Jeffrey, 77 Wn. App. 222, 227, 889 P. 2d 956 ( 1995).

             A person' s dominion and control over a premises allows the trier of fact to infer that the


person also      has dominion         and control over          items in the    premises.    State v. Cantabrana, 83 Wn.


App.    204, 208, 921 P. 2d 572 ( 1996).                   For dominion and control purposes, an automobile is


considered " premises."             State   v.   Turner, 103 Wn.        App.   515, 521, 13 P. 3d 234 ( 2000). Dominion


and    control       of premises       can       be   shared;   it need not be exclusive to establish constructive


possession of         controlled     substances        found thereon.      State v. Cote, 123 Wn. App. 546, 549, 96

P. 3d 410 ( 2004).            And "[    p] ossession of keys to a locked area is probative of constructive

possession of         items    within   that      area."   State v. Turner, 18 Wn. App. 727, 731, 571 P. 2d 955

    1977).


             Viewed in a light most favorable to the State, the totality of the circumstances here show

that the trial court could have reasonably inferred that Showers exercised dominion and control

over    the pickup and the          controlled substances         it   contained.   Showers was the pickup' s driver and

9
     The legislature          amended       RCW 69. 50. 4013           in 2013.       LAws   OF   2013,   ch.   3§    20.     The

amendments did not alter the statute in any way relevant to this case; accordingly, we cite the
current version of the statute.




                                                                   10
No. 43996 -4 -II



lone    occupant at     the time    of   the stop.   He used the vehicle to the exclusion of others after the


vehicle' s earlier occupant         left the pickup, taking    with   her   another     backpack.      Showers' skill in


maneuvering the pickup while speeding through alleys and residential streets to elude the

officers showed that he handled the pickup with familiarity. That Showers eventually abandoned

the pickup,      with   the   key   in the ignition,    and   fled   on   foot   are   indicia   of guilt.   See State v.


Brunton, 66 Wn.2d 111,              112, 401. P. 2d 340 ( 1965) ( "[ F] light is an instinctive or impulsive


reaction to a consciousness of guilt or is a deliberate attempt to avoid arrest and prosecution. ");

State   v.   Porter,    58 Wn.      App.   57, 58 -59, 62, 791 P. 2d 905 ( 1990) (         proximity to illegal drugs,

together with other corroborative evidence tending to show guilt, is sufficient to establish the

dominion       and control over      the drugs necessary to     constitute constructive possession).            Citizens'


pointing the officers in the direction of Showers' flight was also circumstantial evidence of his

dominion       and control over       the pickup.     This evidence and related inferences support the trial


court' s finding that Showers had dominion and control over the vehicle and thus, constructively

possessed the controlled substances found in the backpacks in the truck.'°


                  2. Dominion and control over vehicle; constructive possession of drugs


             Relying on a Division Three case, State v. Shumaker, 142 Wn. App. 330, 174 P. 3d 1214

 2007),       Showers argues that evidence of his dominion and control over the premises is


insufficient to establish that he had dominion and control of the controlled substances on the


premises.       Showers' reliance on Shumaker is misplaced because the holding focused on the trial



10
  Accordingly, we need not address the State' s argument that Showers' possession of the truck' s
keys established his constructive possession of the truck. See State v. Bowen, 157 Wn. App. 821,
828, 239 P. 3d 1114 ( 2010).
No. 43996 -4 -II



court' s erroneous   jury instructions.             Here, in contrast, Showers does not contend that a jury was

improperly instructed.

          Rather, he argues that the trial court erred in concluding that dominion and control over

the   vehicle was sufficient      to    establish     his   constructive possession of   its   contents.   Division One


of this court, however, has noted the distinction between instructional error and claims of

insufficient evidence in the constructive possession context:


         When the sufficiency of the evidence is challenged on the basis that the State has
         only shown dominion and control only over premises, and not over drugs, courts
         correctly say that the evidence is sufficient because dominion and control over
         premises raises a rebuttable inference ofdominion and control over the drugs.

Cantabrana, 83 Wn.          App.      at    208 (   emphasis   added),   which we cited with approval in State v.

                                           11
Turner, 103 Wn.      App.   at   523.


          Here, the trial court could presume Showers' constructive dominion and control over the


drugs in the backpack from his sole dominion and control over the pickup in which the backpack

was    found.   Viewing the facts in favor of the State, especially the inference of guilt from

Showers' frantic flight in his speeding vehicle and on foot, a rational trier of fact could find

beyond a reasonable doubt that Showers constructively possessed the drugs.




11
      In Turner, we adopted Division One' s reasoning in .Cantabrana, but held that when this
reasoning is applied to unlawful firearm possession, under Anderson, knowledge is required.
Turner, 103 Wn.       App.       at   524 ( citing State       v.   Anderson, 141 Wn.2d 357, 357, 5 P. 3d 1247
 2000)).     In Anderson, the Washington Supreme Court rejected the assertion that unlawful
possession of a firearm is a strict liability defense and held that knowledge of the possession or
presence of a firearm is an element of the crime. Anderson, 141 Wn.2d at 359. See also State v.
Chouinard, 169 Wn.      App. 895, 900 -02, 282 P. 3d 117 ( 2012), review denied, 176 Wn.2d 1003
 2013),    in which we differentiated between constructive possession by the vehicle owner and by
the passenger, citing the same rule as above, but not applying it because passenger Chouinard
was in mere proximity to the gun, not in dominion and control of the gun.

                                                                 12
No. 43996 -4 -II



                                         3.   Actual possession not required


         Showers further contends that the trial court failed to find that he could have reduced the

controlled   substances        to    actual   possession,   apparently based on our decision in State v.

Chouinard, 169 Wn.            App.    895, 282 P. 3d 117 ( 2012), review denied, 176 Wn.2d 1003 ( 2013),


which he believes stands for the proposition that, to establish possession, a trial court must find

that a defendant       could   have   reduced   the   controlled substances   to   actual possession.   Showers is


incorrect.


         First, Chouinard, in which we focused on a passenger charged with possession of a

firearm, does not stand for the proposition that a defendant must be able to reduce a controlled


substance    to   actual      possession.       Second,     in Chouinard, we determined that a backseat


passenger' s mere proximity to a weapon in the trunk of a vehicle not owned by the passenger,

and his knowledge of the weapon' s presence, were insufficient to establish dominion and control

and that this evidence alone could not sustain a conviction for constructive possession of a


firearm by the passenger. Chouinard, 169 Wn. App. at 903.

         Nevertheless, we distinguished between vehicle drivers /owners and vehicle passengers,


noting that ( 1) courts have found " sufficient evidence of constructive possession, and dominion

and control, in cases in which the defendant was either the owner of the premises or the

                                                                              12
driver /
       owner      of   the   vehicle where     the   contraband was   found, "     but ( 2) courts " hesitate to find


sufficient evidence of dominion or control where the State charges passengers with constructive.



12
     See Bowen, 157 Wn. App. at 828; Turner, 103 Wn. App. at 521; State v. McFarland, 73 Wn.
App.57, 70, 867 P. 2d 660 ( 1994), aff'd, 127 Wn.2d 322, 899 P. 2d 1251 ( 1995); State v. Reid, 40
Wn. App. 319, 326, 698 P. 2d 588 ( 1985); State v. Echeverria, 85 Wn. App. 777, 783, 934 P.2d
1214 ( 1997).




                                                             13
No. 43996 -4 -II


                    13
possession. "               Chouinard, 169 Wn.          App.      at    899 -900.     Here, in contrast with passenger


Chouinard, Showers drove the vehicle: He was never a backseat passenger. And after his earlier

passenger exited the pickup with a backpack, he was in sole control of the pickup and its

remaining       contents.         Here, constructive possession of the drugs was sufficient to support


Showers' conviction; it was not necessary for the State to prove actual possession or the ability

to reduce the drugs to his immediate dominion and control.


      C. Findings of Fact Support Conclusions of Law about Controlled Substances Possession


            Showers further contends that in finding that he possessed the drugs, the trial court relied

on   facts   not relevant        to establishing dominion          and control,       such as "'   the, circumstances of the


elude ...,      flight from the       vehicle, [ and manner]            in   which   the   vehicle was controlled. "'   Br. of


Appellant      at    14 (   some alterations   in   original) (   quoting Clerk' s Papers ( CP) at 8 ( Findings of Fact

 FF) 20)).          Showers mischaracterizes the trial court' s findings; he also fails to articulate the


 relevant facts" on which the trial court should have relied in finding dominion and control.

            The trial court found:


            Given the totality of the circumstances of the elude, flight from the vehicle,
             manner] in which the vehicle was controlled, the fact that Mr. Showers was the
            lone occupant, and that Mr. Showers utilized the vehicle to the exclusion of others
            demonstrates to this Court that Mr. Showers had dominion and control over this
            vehicle.        Mr. Showers had sufficient dominion and control over the vehicle to be
            in possession of the c ontents therein including the controlled substances found
            therein.



CP    at   8 ( FF 20).       As we have previously noted, whether a person has dominion and control over

an item depends on the totality of the circumstances. Jeffrey, 77 Wn. App. at 227. Here, the trial

court properly considered the totality of the circumstances in concluding that Showers had


13
     See George, 146 Wn. App. at 923; Cote, 123 Wn. App. at 546.


                                                                   14
No. 43996 -4 -II



dominion and control over the pickup, including the drugs found in the backpack in the pickup.

Accordingly,        we    hold that there       was    sufficient       evidence     to   support       Showers'   possession




convictions.



                                                IV. OPINION TESTIMONY


           Showers next argues that the trial court erred by admitting improper opinion testimony

from three law enforcement witnesses, Officer Fuller, Officer Layman, and Deputy Ashley,

whom       he   claims   impermissibly     testified about their          opinions     of   his   guilt.    Showers failed to

                                                                          trial14


preserve    this issue for    appeal   when he did      not object at               to any of this purportedly improper

opinion    testimony. Generally,         parties     may   not claim errors        for the first time      on appeal.   State v.


Kirkman, 159 Wn.2d 918, 926, 155 P. 3d 125 ( 2007).


           As we have previously explained, appellants may raise a claim for the first time on appeal

if it is   a " manifest     error   affecting    a   constitutional      right."    RAP 2. 5(     a).   But "[ a] dmission of


witness opinion testimony on an ultimate fact, without objection, is not automatically reviewable

as a `   manifest'   constitutional error."        Kirkman, 159 Wn.2d at 936.                To merit appellate review in


these circumstances, a         defendant    must show         that the   alleged error caused " actual prejudice"             or




  practical and      identifiable     consequences '         at   his trial.   Kirkman, 159 Wn.2d at 935 ( internal


quotation marks          omitted) (   quoting State     v.   WWJ       Corp., 138 Wn.2d 595, 603, 980 P. 2d 1257

 1999)).        Here, Showers has not shown that the admission of this challenged testimony caused

actual prejudice at trial. Therefore, we do not further consider this argument.


14 Showers did object to Fuller' s testimony about whether he thought the child in the alley was in
danger when Showers sped by in his pickup truck, which objection the trial court overruled. But
this   testimony is      not what     Showers   now challenges on appeal.                 Instead, he challenges Fuller' s,
Layman'          Ashley' characterizing his ( Showers') driving as " reckless," which Showers now
            s, and             s

claims for the first time on appeal were improper opinions of guilt. Br. of Appellant at 21.




                                                                  15
No. 43996 -4 -II



                                       V. EFFECTIVE ASSISTANCE OF COUNSEL


         Showers         argues    that his trial        counsel   rendered        ineffective     assistance   by (   1)   failing to

move   to   suppress      the   drugs,   and (      2)   failing   to    object    to improper      opinion   testimony.       These


arguments also fail.


         We    review      ineffective   assistance of counsel claims                 de   novo.    State v. Cross, 156 Wn.2d


580, 605, 132 P. 3d 80 ( 2006). To prevail on an ineffective assistance of counsel claim, Showers


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.                               45,
                         Brockob, 159 Wn.2d 311, 344 -                           150 P. 3d 59 ( 2006).        If Showers fails to


establish either prong of this test, our inquiry ends and we need not consider the other prong.

State v. Hendrickson, 129 Wn.2d 61, 78, 917 P. 2d 563 ( 1996).


                                       A. Failure To Move To Suppress Drugs


         Failure to       bring    a motion    to    suppress      is   not per se     deficient    performance.        McFarland,


127 Wn.2d      at    322.    Counsel can legitimately decline to seek suppression if there is no viable

ground   for   such a motion.          State   v.   Nichols, 161 Wn.2d 1, 14, 162 P. 3d 1122 ( 2007).                        Thus, to


base an ineffective assistance claim on counsel' s failure to move to suppress evidence, the


defendant     must show         that the trial      court would         likely   have granted      such a motion.       McFarland,


127 Wn.2d      at   333 -34.      Showers fails to make such a showing.

         At the time of his arrest, Showers was in community custody, which allowed his CCO to

search his person, residence, automobile, or personal property if there was reason to believe that




                                                                    16
No. 43996- 4- 11



he had   violated a condition of supervision»                  See RCW 9. 94A.631( 1).     Here, in fleeing from law

enforcement in a speeding truck, Showers was in the process of committing a felony, a violation

of   his community custody.             He       also   had   an   outstanding Department        of   Corrections'   arrest




warrant for another violation. The pickup Showers was driving had been in his exclusive control


15 Although Showers does not address this point in the context of his ineffective assistance of
counsel argument, in his warrantless search argument, he contends that his community custody
status did not justify the search and seizure at issue in this appeal. He argues that ( 1) under State
v.   Winterstein, 167 Wn.2d 620, 220 P. 3d 1226 ( 2009), a CCO must have probable cause to
believe that the       premises    to be   searched are        actually   connected   to the   supervisee; (   2) here, his
CCO lacked probable cause to believe that the backpacks belonged to him; and ( 3) thus, his
CCO' s search of the backpacks was unauthorized. This argument fails.
         First, the Winterstein holding does not apply here because it addresses only a supervisee' s
residence, not a vehicle.    Second, even if Winterstein applied here, there was probable cause to
search   the   backpacks in the pickup: The record shows that the officers had probable cause to
believe that Showers had committed a violation of his community custody release by committing
a felony ( attempting to elude) and that he was in exclusive control of the vehicle searched until
he fled from it. As we explained earlier, Showers' possession of the pickup gave the CCO
probable cause to believe the backpacks in the pickup' s bed were also in Showers' possession.
        Showers further contends that his community custody status did not justify his CCO' s
search of the backpacks because there was no nexus between them and his suspected violation of
his community custody                In so arguing, Showers appears to concede that his CCO had
                                 conditions.

reasonable cause to believe that he had violated these conditions by attempting to elude a police
officer or .by driving recklessly; instead, he argues that his CCO could not have expected to find
evidence of violations         in the backpacks.         But Showers provides no authority for the proposition
that there must be a nexus between the suspected community custody violation and the premises
searched.

         Furthermore, the law is to the contrary:     A community custody search need not be
particularized or limited by scope. State v. Parris, 163 Wn. App. 110, 122, 259 P. 3d 331 ( 2011)
 alteration    in   original) (                    Conway, 122 F.3d 841, 843 ( 9th Cir. 1997)
                                  quoting United States            v.

     Because [ the CCO] had reasonable grounds to suspect that Conway had violated the terms of
his   release,   the    search    was   valid      under      Washington law.     It does not matter whether the
community corrections officers believed they would find evidence of Conway' s address or
contraband when         they   opened      the   shoeboxes.        Washington law does not require that the search
be necessary to confine the suspicion of impermissible activity, or that it cease once the
 suspicion     has been            Accordingly, Showers' community custody status, and the
                          confirmed.'")).

CCO' s probable cause to believe that Showers had committed a felony and that he was in
possession of the pickup, provided Showers' CCO with authority to search the pickup and the
backpacks in the pickup' s bed.



                                                                   17
No. 43996 -4 -II


before he fled from it,    which was subject          to   search   by   his CCO       under   RCW 9. 94A.631( 1).       Thus,


Showers' trial counsel may have legitimately chosen not to move to suppress the evidence seized

from the pickup because the search was pre -authorized and legal as a condition of Showers'

community custody. Thus, to the extent that Showers bases his ineffective assistance claim on of
counsel' s failure to move to suppress evidence, this claim fails.

                                                B. Failure To Object


         Given      the   deference       we    afford      defense        counsel' s    decisions    in    the   course     of


representation, the threshold for deficient performance is high. State v. Grier, 171 Wn.2d 17, 33,


246 P. 3d 1260 ( 2011),      remanded,         168 Wn.      App.    635, 278 P. 3d 225 ( 2012).            There is a strong

presumption that counsel has rendered adequate assistance and has made all significant decisions


by   exercising    reasonable professional       judgment.          State v. Lord, 117 Wn.2d 829, 883, 822 P. 2d

177 ( 1991).      To show ineffective assistance by failing to object, Showers must show ( 1) absence

of   legitimate   strategic or   tactical   reasons   for   failing   to   object; (   2) that the objection would likely

have been sustained if raised; and ( 3) that the result of the trial would have been different if the


evidence had not been admitted. State v. Saunders, 91 Wn. App. 575, 578, 958 P.2d 364 ( 1995).

This Showers fails to do.


         As a threshold matter, the law enforcement officers' testimony was not improper opinion

testimony      about   Showers'     guilt;   rather   it   was   their     eyewitness     account    about    the "   reckless"




manner in      which   they had    seen   Showers     driving —high         speeds, through narrow alleys, through a


stop sign, against the flow of oncoming traffic, spinning 360 degrees in the roadway, coming

dangerously close to a child playing at the street' s edge, through a park, and nearly colliding

head -on   with another vehicle.          We agree with the trial court that this testimony was admissible.




                                                              18
No. 43996 -4 -II



Thus, we hold that Showers fails to show the deficient performance prong of the ineffective

assistance of counsel test.


         But even if this testimony was improper opinion testimony, its admission was harmless.

Overwhelming eyewitness testimony about Showers' erratic driving would lead any reasonable

person   to   conclude   that Showers was   driving   recklessly.   Thus, Showers cannot show how the


officers' characterizing his driving as " reckless" had any significant effect on the jury' s verdict.

We hold, therefore, that he fails to show ineffective assistance of counsel when he failed to


object to the officers' testimony that his driving was reckless.

         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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