                                                                                                                 FILED
                                                                                                        COURT OF APPEAL S
                                                                                                           DIVISION IT
                                                                                                      201/ i AUG 1 2   f   I2• If6




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                DIVISION II

STATE OF WASHINGTON,                                                               No. 44285 -0 -II


                                  Respondent,                            UNPUBLISHED OPINION


        v.



ZACHARY CRAWFORD,


                                  Appellant.


        BJORGEN, A. C. J. —      Zachary Crawford appeals his conviction for methamphetamine

possession, claiming that ( 1) the State and the trial court deprived him of his right to a

unanimous    jury verdict, (2)   the   prosecutor committed misconduct, (            3) the State improperly

introduced opinion about his guilt, (4) the State presented insufficient evidence to convict him

because our court should require proof that he possessed a minimum quantity of a controlled

substance, and ( 5) he received ineffective assistance of counsel. We affirm.

                                                     FACTS


        Late one evening in September 2012, a Washington State Department of Corrections
 DOC)   officer arrived at   Crawford'    s   doorstep   with   two   City   of   Vancouver   police officers.
No. 44285 -0 -I1



Crawford was under DOC supervision for a prior sex offense and neighbors had apparently

lodged complaints, requiring a home visit.'

       The officers asked Crawford which bedroom in the residence belonged to him, and

Crawford directed them to a room he shared with a roommate. Crawford identified the areas of

the room under his control, which included his bed, a closet, and part of a dresser. The officers

searched these areas. In Crawford' s bedding the officers found a plastic bag containing a small,

yet nonetheless visible, amount of white crystalline substance. The officers suspected the


substance was methamphetamine, a suspicion confirmed by both a field test and a later

laboratory analysis by the Washington State Patrol Crime Lab.

        The   officers arrested   Crawford. After Crawford   was given   Miranda2 warnings and


waived his rights, the officers asked him about the plastic bag. Crawford acknowledged that the

bag belonged to him and stated that it had contained $20 worth of methamphetamine that he had

purchased the day before.

        The State charged Crawford with possession of a controlled substance " on or about


September 5, 2012,"    the day the officers seized the methamphetamine from his room. Clerk' s

Papers ( CP) at 1.


        At Crawford' s trial, the State introduced testimony about the discovery of the

methamphetamine in Crawford' s bed. The State also introduced testimony about the statements

Crawford made after waiving his Miranda rights. In addition, the State asked one of the officers




  The parties did not discuss the reason for the visit in front of the jury to avoid prejudicing
 Crawford.


 2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 ( 1966).
                                                   2
No. 44285 -0 -II



to testify about his experience with what constituted a usable amount of the drug. The officer

responded,



                 Well, it -- for different               people,   it' s   a   different   amount.    For someone who
       has a large habit, it could be different from someone who has a smaller habit.
       Someone        who    has    a   lot   of money, a use sm -- a user amount is probably                            a lot
       more    than     someone who            doesn' t have much money at all. They obviously                           use a
       smaller     amount.   In the years of my experience, I' ve noted speaking to people
       while under cover and also in uniform, the one thing that I do get from users is
       that if they' re willing to keep it and possess it, then it' s a useable amount. If, for
       someone who - someone --        if it wasn' t enough for them, they wouldn' t keep it
       around at the risk of getting in trouble or arrested, especially if they' re on
       probation or parole. And that's basically what I go off of for user amount.

Verbatim Report       of   Proceedings ( VRP) ( Nov. 26, 2012) at 59 -60.


        Crawford testified that he had unwittingly possessed the methamphetamine the police

found, although he admitted that he bought the methamphetamine the day before the police

searched his house. Crawford claimed that he thought that he had smoked all the substance in

the bag, that he had simply failed to throw the bag away when finished with it, and had forgotten

that he still had the bag. Crawford proposed an unwitting possession jury instruction, which the

trial court gave.



        During closing argument the State made clear that Crawford' s prosecution arose out of

the possession of the methamphetamine the police found in Crawford' s room at the time of the

search, stating that:

        I have to    prove    the   elements        to    you   beyond         a reasonable   doubt   and   that'   s—   that' s

        what   I' ve done.          On        or   about    September 5th, 2012,              here in Clark County,
        Washington, the Defendant                   possessed        a controlled substance.           We know it was
        around      September 5th.     The officers came to his house on that date around
        midnight,       September 5th /September 6th.... We know it was the Defendant. He
        was —      he   was    there     and       the    officers    identified him. . . .           We know it was
        methamphetamine,            that      substance recovered              from his —from his bed.




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No. 44285 -0 -II



VRP ( Nov. 26, 2012) at 105 -06. The prosecutor also addressed Crawford' s claim of unwitting

possession, arguing,


                   So, the         element         that'   s   left, the issue that'            s   left is   possession.     Did the
       Defendant             possess     it? Well, it was found in his bedroom, it was found in his bed.
       As --     as    he    admitted      to the      officers, "      That' s my room, that' s my bed." When they
       found it,        when       Officer Gutierrez            confronted      him with it, he said, " Yeah, that' s my
       methamphetamine."                      He    even admitted where                    he   got   it.   He bought it a couple
       days     ago     for $20. 00. " That' s mine."
                   The Defense                wants     to say unwitting            possession         because he -- he says he
        didn' t    realize         he   still    had    some      there.         Well, that' s not unwitting possession.
       That' s sort of like saying you didn' t realize there were still some drops left in
       your     Pepsi        can and when you pour                 it   out,     that' s   still    Pepsi. Well, if you pour that
        out,    that'   s still methamphetamine.                    And he knew it was there, he knew where he
        got    it, he       used   it, he knew exactly            what      it   was.      That' s possession of a controlled

        substance. That' s why I'm asking you to convict. The State has proven it beyond
        a reasonable           doubt.         I am now asking you to do your civic duty and convict this
        Defendant. Thank you.


VRP (Nov. 26, 2012) at 106 -07. The prosecutor later returned to Crawford' s unwitting

possession defense in rebuttal, stating,

                      It'   s not a     discarded item.          It' s an item that he left in his bed after smoking
        and what            did — what          he testified to, after he purchased that bag, he had smoked
        some of         it in his bedroom               and    then he left        it there. It kind of boils down to this:
        he admitted he bought meth, he tells the police the location where it' s found is —
        is his room....   And when confronted by Officer Gutirrez, he didn' t say, " I
        thought that was                all     gone,   I didn' t       realize     anything         was    left."   He   said, "   Yeah,

        that'   s mine.        I bought it        at —   I bought it a day ago."

VRP (Nov. 26, 2012) at 110 -11.


        The jury returned a verdict of guilty, and Crawford timely appeals.
                                                                   ANALYSIS


        Crawford contends that ( 1) the evidence about multiple acts of methamphetamine




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No. 44285 -0 -II



possession deprived him of a unanimous jury verdict, (2) the prosecutor committed misconduct

by misstating the law of unwitting possession and its burden of proof, (3) the officer' s testimony

about a usable amount of controlled substances constituted impermissible testimony about his

guilt, (   4) the State failed to show he possessed a usable amount of drug, and ( 5) his trial counsel

rendered ineffective assistance. We find no merit in any of Crawford' s claims and affirm.

                                             I. JURY UNANIMITY


            Crawford first argues that the State violated his right to a unanimous jury verdict. He

contends that the evidence indicated he possessed methamphetamine on two different occasions

and that the jury could have returned a verdict of guilty based on either of these instances,

depriving him of a unanimous verdict on a criminal act. Because Crawford alleges a
constitutional violation, we review his claim de novo. State v. Dobbs, 180 Wn.2d 1,-, 10, 320

P. 3d 705 ( 2014).     We disagree that the evidence at trial involved discrete instances of possession

and therefore reject Crawford' s argument.


             Washington' s constitution requires the jury to unanimously agree to a guilty verdict.

State   v.   Smith, 159 Wn.2d 778, 783, 154 P. 3d 873 ( 2007); WASH. CONST.      art.   I, § 21.   This


requires that the jury agree unanimously on a specified criminal act. State v. Crane, 116 Wn.2d
315, 324 -25, 804 P. 2d 10 ( 1991),     overruled on other grounds in Pers. Restraint ofAndress, 147

 Wn.2d 602, 56 P. 3d 981 ( 2002).       Accordingly,

              w]hen the prosecution presents evidence of multiple acts of like misconduct, any
             one of which could form the basis of a count charged, either the State must elect
             which of such acts is relied upon for a conviction or the court must instruct the
             jury to agree on a specific criminal act.

 State v. Coleman, 159 Wn.2d 509, 511, 150 P. 3d 1126 ( 2007).




                                                         5
No. 44285 -0 -II



        The law distinguishes between            a single,   continuing   offense and "'   several distinct acts'


each of which could be the basis of a criminal charge" for purposes ofjury unanimity. Crane,

116 Wn.2d     at   326 ( quoting State   v.   Petrich, 101 Wn.2d 566, 571, 683 P. 2d 173 ( 1984) ( internal


quotation marks omitted).         When considering a continuous course of conduct, a jury need not

unanimously agree on any particular criminal act or incident so long as it unanimously agrees the

course of conduct occurred. Crane, 116 Wn.2d at 330. We examine a variety of factors " in a

commonsense manner" to determine if the State alleges multiple distinct acts or a single course

of conduct.   State    v.   Hadran, 113 Wn.2d 11, 17, 775 P. 2d 453 ( 1989); State v. Love, 80 Wn.


App.   357, 361, 908 P. 2d 395 ( 1996). These factors include whether the charges involved


different times,    places, materials,    types   of possession ( actual or constructive),      and whether the


defendant engaged in the acts with a single purpose. Hadran, 113 Wn.2d at 17; Love, 80 Wn.

App. at 361; State v. King, 75 Wn. App. 899, 903, 878 P. 2d 466 ( 1994).
         The evidence at Crawford' s trial did not implicate his right to a unanimous verdict.

Crawford admitted that he purchased the bag containing the methamphetamine, brought it to his

room, smoked some of the methamphetamine, and left the remainder there until the police seized

the bag. Crawford possessed the same methamphetamine in the same container in the same

place over the course of two days so that he could have methamphetamine for his own personal

use. Crawford thus admitted to a single, continuous, and unbroken instance of possession. This

continual methamphetamine possession can sustain a single charge. See Love, 80 Wn. App. at

 362 ( two acts of possession considered continuous course of conduct when possession served the

 single objective    to   make   money   trafficking   narcotics).   A separate unanimity instruction was not

 required.




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No. 44285 -0 -II



                                      II. PROSECUTORIAL MISCONDUCT


        Crawford next contends that the prosecutor committed misconduct by arguing that

Crawford had knowingly possessed the methamphetamine found in his room and by suggesting

that the jury should disregard the date and time element of the charging document. We find no
misconduct.



        A criminal defendant has a constitutional right to a fair and impartial trial. State v.

Davenport, 100 Wn.2d 757, 762, 675 P. 2d 1213 ( 1984).              A prosecutor may deprive a defendant

of this right by engaging in misconduct. Davenport, 100 Wn.2d at 762. To demonstrate

prosecutorial misconduct, a defendant must show that the prosecutor' s conduct was improper

and prejudicial.   State   v.   Emery,   174 Wn.2d 741, 756, 278 P. 3d 653 ( 2012). Where the


defendant fails to object to the alleged improper conduct at trial, he or she waives any claim of

misconduct unless the impropriety was flagrant and ill-intentioned such that a curative

instruction would not have obviated any prejudice from the misconduct. Emery, 174 Wn.2d at

760 -61.


           We determine whether a prosecutor has made improper argument by examining the total

context of the trial, the issues in the case, the evidence, and the jury instructions. State v.

Dhaliwal, 150 Wn. 2d 559, 578, 79 P. 3d 432 ( 2003).          A prosecutor makes improper argument by

mischaracterizing the law in general or the law of the case as stated in the jury instructions. State
v.   Walker, 164 Wn.   App.      724, 736, 265 P. 3d 191 ( 2011).    However, we give prosecutors " wide


latitude" in making arguments, and a prosecutor may permissibly draw reasonable inferences
from the record. State v. Thorgerson, 172 Wn.2d 438, 453, 258, P. 3d 43 ( 2011).




                                                        7
No. 44285 -0 -II



         Crawford alleges the first instance of improper argument occurred when the prosecutor


 misstated   the   law      of ...   unwitting possession" by arguing that Crawford knew he possessed

methamphetamine because he had acknowledged purchasing the substance the day before. Br.

of   Appellant   at   11.    Specifically, Crawford contends this argument ran contrary to the trial

court' s instruction on unwitting possession and the general law of unwitting possession, which

allows the defense when a defendant does not know he or she has a controlled substance or does

not understand        the   nature of a substance   he   or she acknowledges   having. City ofKennewick v.

Day,   142 Wn.2d 1,          10 -11, 11 P. 3d 304 ( 2000).   The prosecutor made the argument specifically to

rebut one of the elements of unwitting possession, that Crawford did not understand the nature of

the substance in his possession. The prosecutor' s argument simply noted that Crawford had

admitted to purchasing the methamphetamine and asked the jury to infer that Crawford could not

reasonably believe that his failure to promptly smoke all of it somehow transformed the

remainder into a substance he could legally possess. The prosecutor addressed the other prong of

the unwitting possession defense with a different portion of his argument. Viewed in the context
of the total argument and the issues in this case, the prosecutor was responding to Crawford' s

defense using permissible inferences from the record.

          Crawford also alleges that the prosecutor improperly argued that the jury could convict

him without finding an essential element of the crime, namely the date of possession. The to-

convict instruction incorporated the date of Crawford' s possession, on or about September 5,

2012. The State, therefore, bore the burden of proving that Crawford possessed




                                                             8
No. 44285 -0 -II



methamphetamine on or about that date beyond a reasonable doubt. State v. Hickman, 135


Wn.2d 97, 105, 954 P. 2d 900 ( 1998) (             the State bears the burden of proving all elements

articulated   in   jury   instructions).     The prosecution would have committed misconduct by

suggesting it did     not   have that burden.        Walker, 164 Wn. App. at 736. However, the record flatly

contradicts Crawford' s contention. The prosecutor explicitly acknowledged that the State

needed to prove Crawford possessed the methamphetamine on or about September 5, 2012, and

then   argued   that it had done      so.    The prosecutor did not misstate the law and did not commit

misconduct.




                                                 III. OPINION TESTIMONY


         Crawford also alleges that the State improperly introduced opinion testimony about his

guilt from one of the testifying officers. We decline to reach the merits of Crawford' s claim

because he did not raise it in the trial court.


         Normally we do not review claims of error raised for the first time on appeal, and

Crawford did       not object   to the allegedly      objectionable   testimony      at   trial. RAP 2. 5(   a);   State v.


Montgomery,         163 Wn.2d 577, 595 -96, 183 P. 3d 267 ( 2008) (            quoting State v. Kirkman, 159

Wn.2d 918, 937, 155 P. 3d 125 ( 2007)).               A limited exception to this general rule exists for

 manifest error[ s]       affecting   a constitutional right."     RAP 2. 5(   a)( 3).    While impermissible opinion


testimony may infringe on a defendant' s constitutional right to a jury trial, the admission of

improper opinion testimony is not manifest within the meaning of RAP 2. 5( a)( 3) if the trial court

properly instructs the        jury   that   they "' are the sole judges of the credibility of witnesses, and .. .




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No. 44285 -0 -II



are not    bound       by   expert witness opinions."          Montgomery, 163 Wn.2d at 595 -96, 183 ( quoting

Kirkman, 159 Wn.2d              at   937) ( internal   quotation marks omitted);   State v. Curtiss, 161 Wn. App.

673, 697, 250 P. 3d 496 ( 2011).               The court gave those instructions to Crawford' s jury, and he

makes no showing to overcome the presumption that the jurors followed them. Kirkman, 159

Wn.2d      at   937; Curtiss, 161 Wn.          App.    at   697 ( citing Montgomery, 163 Wn.2d   at   596). Under


RAP 2. 5(       a),   Crawford does not have a right to claim this error for the first time on appeal.

                                                            IV. SUFFICIENCY


           Crawford next contends that we should impose a common law element requiring the

State to prove that he possessed a usable amount of contraband. He contends that the State failed

to do so here and that we should therefore order the trial court to reverse his conviction and

dismiss the charge with prejudice.


               We decline to consider Crawford' s plea to add a common law requirement of usability to


possessory offenses, because we do not consider inadequately briefed arguments. RAP
10. 3(   a)(   6); Fishburn     v.   Pierce   County Planning & Land Servs. Dep' t, 161 Wn. App. 452, 473,

250 P. 3d 146 ( 2011).           Crawford appears to identity two reasons for adopting some kind of

minimal amount element, but does not adequately brief either. First, Crawford cites, extensively,

the existence of such elements in the possessory offenses of Washington' s sister states.

 Crawford provides no reasoned argument as to why the mere existence of those elements in

 sister jurisdictions should compel our court to impose a similar one in this case. Washington' s

 legislature has made a policy choice, and we cannot overrule the people' s representatives simply

 because legislatures in sister jurisdictions have made a different one. See State v. Malone, 72

 Wn.     App.     429, 439     n. 12,   864 P. 2d 990 ( 1994) ( holding   that there is no minimum amount


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No. 44285 -0 -II



requirement for possession, in part because " it is within the province of the Legislature to decide

whether possession of a minute quantity of a controlled substance should be punished under the

statute. ")




         Second, Crawford offers policy reasons for requiring a minimum amount of a controlled

substance. He claims that the cost and expense of prosecuting and incarcerating those convicted

of possessing small amounts of controlled substances necessitates a minimal amount element in
possession crimes. Crawford, however, offers no evidence that would allow us to make a


decision based on these considerations, such as the number of such prosecutions or the actual


expenses involved. Assuming that such a policy choice is within our authority, Crawford has not
                                                                   3
supplied      the   basis   on which     we     could make       it.




3
 Even if we were to address this claim on the merits, Division One of our court rejected
                                                                  Malone " cite[ d] ...
essentially the same argument in Malone, 72 Wn. App. at 438 -39.
                                                                                        out -of-

state case     law," just     as    Crawford does        and " ask[ ed] [   Division One] to read into the statute a
requirement that, to be charged with possession, there must be a measurable or usable amount
of" a controlled substance, just as Crawford asks our court to do. Malone, 72 Wn. App. at 438.
Division One rejected Malone' s argument as incompatible with Washington law after noting that
the statutes defining the crime of possession in Washington do not make the amount the
defendant possessed .relevant to a conviction and that " possess[ ion] of any amount can support a
conviction." Malone, 72 Wn. App. at 439 ( emphasis in original).

       Crawford notes that the legislature has " authorized the judiciary to supplement penal
 statutes with common law, so long as the court decisions are ` not inconsistent with the
 Constitution       and     the   statutes of   this   state '   and asks our court to exercise that power here. Br. of
 Appellant  at 19 ( quoting RCW 9A.04. 060). In making this argument Crawford misses the

 import of Malone, which recognized that the legislature intended to strictly forbid any possession
 of a controlled substance. The legislature has signaled its approval of Malone as it has not
 amended the possession statutes to add a minimum quantity element in response. In re Custody
 ofA.F.J., 179 Wn.2d 179, 185 -86, 314 P. 3d 373 ( 2013). Enacting the common law elements
 Crawford seeks would be inconsistent with the statutes of this state. Crawford' s argument,
 therefore, asks us to make the sort of policy choice reserved to the legislative authority.

                                                                       11
No. 44285 -0 -II



          Absent a common law minimum quantity element, the State unquestionably presented

sufficient evidence to convince a rational trier of fact beyond a reasonable doubt that Crawford

had possessed methamphetamine, a controlled substance. State v. Mau, 178 Wn.2d 308, 312,

308 P. 3d 629 ( 2013).    Police seized the substance at issue from Crawford' s bed. Multiple tests


confirmed the substance is methamphetamine. Crawford himself admitted to purchasing and
                                                                                              4
possessing the     methamphetamine.      Sufficient   evidence supports   his   conviction.




                               V. INEFFECTIVE ASSISTANCE OF COUNSEL


          Finally, Crawford contends that he received ineffective assistance of counsel because his

attorney failed to object to the officer' s opinion testimony and the prosecutor' s closing

arguments. We review these claims de novo and hold that Crawford' s counsel provided


effective assistance. State v. Sutherby, 165 Wn.2d 870, 883, 204 P. 3d 916 ( 2009).

          A criminal defendant has the right to effective assistance by his or her counsel. State v.

Grier, 171 Wn.2d 17, 32, 246 P. 3d 1260 ( 2011).         We begin   with "`     a strong presumption that

counsel' s performance was reasonable. "'       Grier, 171 Wn.2d at 33 ( quoting State v. Kyllo, 166

Wn.2d 856, 862, 215 P. 3d 177 ( 2009)). To overcome this presumption, the defendant must show


that counsel performed deficiently and that this deficient performance prejudiced him or her.

Grier, 171 Wn.2d at 32 -33 ( quoting State v. Thomas, 109 Wn.2d 222, 225 -26, 743 P.2d 816

    1987)).   To show deficient performance, the defendant must show " that `there is no conceivable



4
 Even if we accepted Crawford' s argument, the evidence at trial showed he possessed " a
measureable amount." Br. of Appellant at 24. Officers testified that the bag they found

contained a visible quantity of methamphetamine, which would make it measureable. Further,
 Crawford testified that he would have " licked the bag clean" if he knew it had methamphetamine
in it. VRP ( Nov. 26, 2012)     at   83. This indicates Crawford could and would have used the
methamphetamine had he later found it, providing sufficient evidence to convict him even where
 a minimal, usable amount is required for a conviction.
                                                        12
No. 44285 -0 -II


legitimate tactic explaining              counsel' s performance. '            Grier, 171 Wn.2d at 33 ( quoting State v.

Reichenbach, 153 Wn.2d 126, 130, 101 P. 3d 80 ( 2004)).                             Demonstrating prejudice requires the

defendant to     show      that '     there is a reasonable probability that, but for counsel' s deficient

performance,        the   outcome of        the    proceedings would       have been different. '        Grier, 171 Wn.2d at


34 ( quoting Kyllo, 166 Wn.2d at 862).

          Crawford claims that one of the officers expressed an opinion as to Crawford' s guilt by

testifying that if a user is

          willing to      keep      it   and possess      it, then it' s   a usable     amount [           I] f it wasn' t
          enough for them, they wouldn' t keep it around at the risk of getting in trouble .. .
          especially if they' re on probation or parole.

VRP ( Nov. 26, 2012)             at      60; Br.   of   Appellant   at   17.   For purposes of this analysis, we assume


without    deciding       that this       testimony improperly           expressed an opinion.         Crawford' s counsel did


not   object    to this     testimony.            Failing to object to the admission of improper evidence can

constitute     deficient    performance.            State v. Hendrickson, 138 Wn. App. 827, 833, 158 P. 3d 1257

 2007).      However, Crawford' s attorney cross -examined the officer about the same subject.

Crawford' s attorney therefore appears to have decided not to object and instead address the

impropriety      in   other    ways.         State v. Kloepper, 179 Wn. App. 343, 355 -356, 317 P. 3d 1088,

review    denied, 180 Wn.2d 1017 ( 2014) (                      holding that the decision not to object is generally

considered      a    legitimate trial tactic to             avoid   emphasizing         damaging       evidence).     This was a


legitimate tactical        choice and, as such, cannot serve                   to   show   deficient   performance.     Kloepper,



 179 Wn. App. at 355 -56.

                           Crawford'                      did                  to the   prosecutor' s               statements.   A
          Similarly,                        s counsel           not object                              closing


 defense attorney' s failure to object to impermissible closing argument can constitute deficient

                                                                    13
No. 44285 -0 -II



performance      that   might prejudice   the defendant.    See State v. McFarland, 127 Wn.2d 322, 337


n. 4,   899 P. 2d 1251 ( 1995).   However, as held above, the prosecutor did not commit misconduct,


and     Crawford'   s   attorney had nothing to    object    to.   Further, as with Crawford' s claim of


ineffective assistance related to the opinion testimony, his attorney appears to have made a

tactical decision to address the prosecutor' s argument during her own closing, where she

specifically used the State' s comments as a springboard to present her theory of the case. Again,

we find no ineffective assistance based on what trial counsel saw as a legitimate trial tactic.

                                                CONCLUSION


           We find no merit in any of Crawford' s claims and affirm his conviction for possession of

methamphetamine.




           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.




We concur:




 LJ.




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