                                                                                                                     FILED
                                                                                                            COU I OF' APPEALS
                                                                                                                   DIVISION IT
                                                                                             2014 HAY - 6
                                                                                                   Ay     All 8: 29
      IN THE COURT OF APPEALS OF THE                                                 STATE OFS
                                                                                                                      RgipOr.
                                                                                                          3,
                                                           DIVISION II `
                                                                                                                     EIDIJ'' Y
STATE OF WASHINGTON,                                                                             No. 44077 -6 -II


                                          Respondent,


        v.




TYSON TAKUMI MAXWELL,                                                                     UNPUBLISHED OPINION


                                          Appellant.


        MELNICK, J. —                  Tyson Maxwell appeals his convictions for first degree unlawful

possession         of   a   firearm,    unlawful      possession          of a   controlled          substance ( methamphetamine,



                                          MDMA1)

oxycodone,         marijuana,       and                    with intent to distribute, making false or misleading

statements     to       a   law   enforcement        officer,     and   unlawful          use   of   drug      paraphernalia.     He also


appeals    the legal financial          obligation ( LFO) portion of                his   sentences.      Specifically, he argues ( 1)

                                             his   unlawful possession of a                firearm     conviction, ( 2)      the trial court
insufficient       evidence supports




violated     his   right     to   a public   trial   and   his    right   to   be   present,      and (   3)    the trial court erred by

imposing      LFOs.         He also argues in his statement of additional grounds ( SAG) that he received

ineffective assistance of counsel and that there is insufficient evidence to uphold his unlawful

possession         of a     controlled    substance        with   intent to distribute               convictions.     Because there is


insufficient evidence to support Maxwell' s unlawful possession of a firearm charge as either a

principal or an accomplice, we reverse that conviction and remand for the trial court to dismiss

the   charge with prejudice and resentence                   Maxwell.          We affirm Maxwell' s remaining convictions


and sentences, including imposition of LFOs.

                                                                  FACTS




1
    MDMA is 3 -, 4- methylenedioxymethamphetamine,                               or more        commonly known          as   Ecstasy.
44077 -6 -II



I.        BACKGROUND


          On the morning of May 9, 2012, Officers Dave Miller and Alfred Stanford responded to a

call regarding unwanted people in a hotel room at the Comfort Inn in Lacey, Washington. When

nobody responded to their pounding on the door, the officers used the manager' s key and found
two    men     sleeping in their           respective       beds.       After waking the men, the officers identified

themselves as police and asked if the men were okay.

          Miller observed " two smoking devices, a bag of marijuana, and then [ sic] tinfoil with a

       black burnt line                  it."     1 Report       of   Proceedings ( RP)     at    62.   He placed the men in
long                                on


                                                                                                                          Miranda2


handcuffs,                          the beds     in                          found sleeping,      and read   them their
                  sat   them   on                     which   they    were




rights.    The men had no identification, and when questioned, both men provided false names.

Maxwell subsequently                confirmed         his true   and correct name.       The police identified the other man


as   Anthony       Banek.       Maxwell told Miller that he came to the hotel room with a girl he met the

previous night and that nothing in the room belonged to him. The room had actually been rented

by Jisu Barbie Kim and Kim' s boyfriend, who the hotel manager testified was not Maxwell but
 another gentleman with Kim.


           When Miller exited the room to apply for a telephonic search warrant, another officer

 noticed   Maxwell moving                and    fidgeting   toward the head       of   the bed.    The officer investigated and


 found    a   roll                banded
                        of rubber -               money       on   the bed     and   some   loose $     20 bills sticking out of

 Maxwell'     s    pocket.          The money in the              rubber     band totaled $ 1, 921       and the loose bills in


 Maxwell' s pocket totaled $ 80.




 2 Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 ( 1966).
                                                                        2
44077 -6 -II




          After obtaining the search warrant, the officers searched the room with Maxwell present.

                                                                                hollow                           tinfoil4 near
                                                                                         pen3




They     found   numerous pieces of evidence,                including:     a                   and a piece of




the money; a small baggie of marijuana, a marijuana pipe, and a methamphetamine pipe at the

end of Maxwell' s bed; a long piece of tinfoil with a burnt line down the middle, another hollow

pen, and two tablets inside a small container on a table; and another piece of tinfoil and pay / we
                                                                                               o


sheets on or        in the   nightstand.     The officers also seized a small baggie of methamphetamine, a

methamphetamine pipe, and a roll of                     tinfoil.    In Banek' s pillowcase was a bottle containing 14

pills.    Under Banek' s mattress the officers found a loaded . 357 magnum revolver and in a

backpack       on   the floor    of   the   closet were          three bullets.   The officers also seized four knives,


including one found on Maxwell' s person, and four cell phones.

II.       PROCEDURAL HISTORY


          Maxwell       proceeded      to   a   jury    trial.     The court conducted voir dire in open court with

Maxwell        present.       After questioning            the     prospective    jurors, the attorneys    exercised their


challenges for cause. The trial court then stated:


          The next step in this process, ladies and gentlemen, is the part where we actually
          choose      the jurors in this During that process, the lawyers will be having a
                                                case.


          discussion with the clerk to my left, and some of those discussions are going to
          involve maybe looking out at your numbers and indicating their preferences and
           some discussions that the whole idea is that you don' t hear what' s going on.

RP ( Jury Voir Dire) at 131.

           At trial, Miller testified        as an expert witness.          He told the jury that, based on his training

 and experience,        the $   2, 001 in cash Maxwell possessed was a large sum of money for a street

 level dealer and that Maxwell likely had the cash because he was getting ready to buy more

 3 Miller testified that hollow pens are often used as a pipe or straw to consume narcotics.

 4 Miller testified that tinfoil is used to smoke prescription drugs.
                                                                      3
44077 -6 -II




product. He also apprised the jury that people often work together or in groups to sell drugs and

                            for          dealers to carry                          have                               Miller
that it is   common               drug                           weapons     and          multiple   cell   phones.




further stated that the pay /owe sheets found in the nightstand contained various written words

and numbers that are associated with drug dealing and that the writing included Banek' s and

Maxwell' s nicknames.


          A forensic scientist testified that the small baggie contained methamphetamine, the two

tablets   were     MDMA,           and   the fourteen    pills     tested    positive   for   oxycodone.      An evidence



technician confirmed the green leafy substance was marijuana.

          Banek, who had accepted a plea bargain for his involvement, testified that the controlled

substances were          his.   Banek further testified that the firearm and bullets were his, that he hid the

firearm from everyone, and that Maxwell did not know about the firearm.

          The     jury   found Maxwell guilty         on all counts.        The trial court sentenced Maxwell to 100

months     in   prison and        imposed LFOs.       Maxwell did not object to the trial court' s imposition of

the LFOs. Maxwell timely appeals.

                                                         ANALYSIS


I.        SUFFICIENCY OF THE EVIDENCE-                 UNLAWFUL POSSESSION OF A FIREARM


          Maxwell argues insufficient evidence exists to support the jury' s verdict on his unlawful

possession of a          firearm    charge.   When viewing the evidence in the light most favorable to the

 State, there is insufficient evidence to prove that Maxwell had dominion and control over the

 firearm,    or   that    he knew        of the   firearm'   s   presence.     We reverse Maxwell' s conviction for

 unlawful possession of a firearm and remand to the trial court to dismiss with prejudice.




                                                                   4
44077 -6 -II




              The test for determining the sufficiency of the evidence is whether, after viewing the

evidence in the light most favorable to the State, any rational trier of fact could have found guilt

beyond    a reasonable      doubt."    State       v.   Salinas, 119 Wn.2d 192, 201, 829 P. 2d 1068 ( 1992). "                              A


claim of insufficiency admits the truth of the State' s evidence and all inferences that reasonably

can   be drawn therefrom."            Salinas, 119 W. 2d              at    201. "[      A] 11 reasonable inferences from the


evidence must be drawn in favor of the State and interpreted most strongly against the

defendant."        Salinas, 119 Wn.2d              at    201.     Circumstantial evidence and direct evidence are


deemed equally         reliable.      State       v.    Delmarter, 94          Wn. 2d 634,                638,   618 P. 2d 99 ( 1980).


                  determinations               for the trier    of   fact   and cannot      be   reviewed         on   appeal."      State v.
 Credibility                          are




Camarillo, 115 Wn.2d 60, 71, 794 P. 2d 850 ( 1990).

          A person commits first degree unlawful possession of a firearm when " the person owns,

has in his or her possession, or has in his or her control any firearm after having previously been
                                                                                                      5
convicted ...        of   any   serious     offense      as   defined in this           chapter. "         RCW     9. 41. 040( 1)(   a).    To



establish that Maxwell unlawfully possessed a firearm, the State had to prove that he knowingly
possessed it. State v. Anderson, 141 Wn.2d 357, 366, 5 P. 3d 1247 ( 2000).

                                                                                         State        Raleigh, 157 Wn.         App.        728,
          Knowing      possession     may be           actual or constructive.                   v.




 737, 238 P. 3d 1211 ( 2010).          Constructive             possession      is "'   established by showing the defendant

 had dominion        and control over           the firearm. '        State v. Murphy, 98 Wn. App. 42, 46, 988 P. 2d

 1018 ( 1999) ( quoting State             v.    Echeverria, 85 Wn.              App.      777, 783, 934 P. 2d 1214 ( 1997)).


  Dominion and control" means that the item " may be reduced to actual possession immediately."

 State   v.   Jones, 146 Wn.2d 328, 333, 45 P. 3d 1062 ( 2002).                          In establishing dominion and control,



 5 At trial, Maxwell stipulated that he had committed a serious offense prior to the events in this
 case and, thus, that element is not at issue on appeal.
                                                                      5
44077 -6 -II



the   totality   of   the   circumstances must            be   considered and no single          factor is dispositive. State v.


Alvarez, 105 Wn.            App.    215, 221, 19 P. 3d 485 ( 2001).              The defendant' s control over the firearm


does not have to be exclusive. Raleigh, 157 Wn. App. at 737. But mere proximity to the firearm

is insufficient to show control. Raleigh, 157 Wn. App. at 737.

          In the present case, there is no contention that Maxwell had actual possession of the

firearm.    There is also insufficient evidence to prove Maxwell had dominion and control of the

firearm,    or   that   he   even   knew    of    its   presence.        In State v. Chouinard, 169 Wn. App. 895, 902-

03, 282 P. 3d 117 ( 2012),            review      denied, 176 Wn. 2d 1003 ( 2013), we found the State presented


insufficient evidence of constructive possession where the State demonstrated only the

defendant' s proximity to the firearm in the vehicle in which he was a passenger and that the
defendant had knowledge                of   the    weapon' s         presence   in the   vehicle.   We held that evidence of


mere proximity and knowledge, alone, is insufficient to show the defendant had dominion and
control of the firearm, and, thus, could not sustain a conviction for constructive possession of a

firearm. Chouinard, 169 Wn.                  App.        at   902 -03.   Just as the defendant in Chouinard was in close


proximity to the firearm in the vehicle, Maxwell was in close proximity to where the firearm was
hidden in the hotel          room —    between Banek' s mattress and box spring.

           The State argues that Maxwell had knowledge of the firearm because after his arrest he

 had   a phone conversation where                 he did       not   deny knowing        about   it. However, these statements


 must be considered in light of the fact Maxwell was present when the officers located and seized

 the firearm.         There is no evidence Maxwell knew about the firearm before the officers found it

 hidden between Banek' s               mattress         and    box spring.      Because the State proved only Maxwell' s

 mere     proximity to the            firearm,          there is insufficient evidence to prove that Maxwell had

 constructive         possession      of   the firearm.          State v. Lee, 158 Wn. App. 513, 517, 243 P. 3d 929
                                                                         6
44077 -6 -II



 2010) ( "[   A] defendant with prior felony convictions may not be in violation of the law by

simply being near a firearm if [the defendant] has not exercised dominion or control over the

weapon or premises where the weapon is found. ").

          Further, because there is a lack of proof that Maxwell knew of the firearm' s presence, he

cannot   be found guilty         as an accomplice.       RCW 9A.08. 020( 3)(           a).    An accomplice does not have


to have knowledge of every element of the crime, but must have general knowledge of the

specific substantive crime committed.                State v. Roberts, 142 Wn.2d 471, 512 -13, 14 P. 3d 713


 2000); State      v.   Sweet, 138 Wn.2d 466, 479, 980 P. 2d 1223 ( 1999). "[                    F] or one to be deemed an


accomplice, that individual must have acted with knowledge that he or she was promoting or

                                for           that individual   was    eventually        charged."    State v. Cronin, 142
facilitating     the    crime         which




Wn.2d 568, 579, 14 P. 3d 752 ( 2000) ( emphasis in original).


          Accordingly, there is insufficient evidence to prove Maxwell possessed the firearm or
knew     of   its, presence      underneath    Banek'    s mattress.       We reverse Maxwell' s conviction of first

degree unlawful possession of a firearm and remand this case to the trial court with instructions

to dismiss the unlawful possession of a firearm conviction with prejudice and resentence

Maxwell.


II.       RIGHT TO A PUBLIC TRIAL

          Maxwell argues the trial court violated his right to a public trial by allowing the attorneys

 to   exercise   peremptory       challenges    during   a sidebar.    In State v. Dunn, No. 43855 -1 - II, 2014 WL

                                                                                                                     here.   In
                                                              recently decided the issue Maxwell
                                       Apr. 8, 2014),                                                       raises
 1379172 ( Wash. Ct.            App.                     we




 Dunn, we held that the trial court did not violate a defendant' s right to a public trial when the

                                                                                             2014 WL 1379172,    at *   3.   In
 attorneys     exercised        peremptory     challenges     during   a    sidebar.




 deciding this issue, we adopted the reasoning of Division Three in State v. Love, 176 Wn. App.
                                                                7
44077 -6 -II



911,   309 P. 3d 1209 ( 2013) ( peremptory                   challenges    done    at   sidebar).     Dunn controls here.


Therefore, the trial court did not violate Maxwell' s public trial right and his challenge fails.

III.    RIGHT TO BE PRESENT


        Maxwell also argues the trial court violated his right to be present by allowing the

attorneys     to    exercise    peremptory       challenges     during    a   sidebar.     Here, the record is unclear


whether     Maxwell        was present when          the   attorneys exercised     their 'peremptory       challenges.      The


record shows that Maxwell was present during jury voir dire, and Maxwell argues there is no

indication in the record that he joined counsel at the clerk' s station when they exercised their

                   challenges.   At best, this       allegation   is   supported
                                                                                   by   the trial   court' s statement, "   The
peremptory


next step in this process, ladies and gentlemen, is the part where we actually choose the jurors in
this case. During that process, the lawyers will be having a discussion with the clerk to my left."

RP ( Jury Voir Dire) at 131.

           Although the trial court did not specifically call Maxwell to the clerk' s station with his

attorney, there is no indication whether Maxwell did or did not accompany counsel when counsel
exercised      the peremptory          challenges.         Because the record is unclear whether Maxwell was


present at the clerk' s station during the exercise of peremptory challenges, the claim relies, at

 least in   part, on    facts   outside    the   record on appeal.        We do not address issues on direct appeal

that rely    on    facts   outside   the   record.    State v. McFarland, 127 Wn.2d 322, 335, 899 P. 2d 1251

  1995).


 IV.        LEGAL FINANCIAL OBLIGATIONS ( LFOS)


            Maxwell argues the trial court lacked authority to impose a drug court fee and erred when

 it determined he had the            present or   future ability to pay. But Maxwell did not object to the trial


 court' s imposition of the fines or fees. Therefore, he has waived his ability to challenge the trial
                                                                  8
44077 -6 -II



court' s   imposition     of   LFOs    on appeal.      RAP 2. 5(     a);   State v. Blazina, 174 Wn. App. 906, 911,

301 P. 3d 492, review granted, 178 Wn.2d 1010 ( 2013).


V.         SAG ISSUES


           A.       INEFFECTIVE ASSISTANCE OF COUNSEL


           Maxwell      asserts     his trial    counsel   provided        ineffective   assistance.   Because counsel' s


performance was not deficient, we hold Maxwell received effective assistance of counsel.

           To    prove    ineffective      assistance      of   counsel,       Maxwell      must   show   that   counsel' s


performance was so deficient that it "fell below an objective standard of reasonableness" and that

the deficient      performance prejudiced           him. State v. Thomas, 109 Wn.2d 222, 225 -26, 743 P. 2d


816 ( 1987) (      quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d
674 ( 1984)).          Performance is not deficient if counsel' s conduct can be characterized as a

legitimate trial strategy. State          v.    Kyllo, 166 Wn.2d 856, 863, 215 P. 3d 177 ( 2009). To establish


prejudice, the defendant must show a reasonable probability that the deficient performance

affected     the   outcome     of   the trial.    Thomas, 109 Wn.2d at 226 ( quoting Strickland, 466 U. S. at

694).      We review ineffective assistance of counsel claims de novo. State v. Sutherby, 165 Wn.2d

 870, 883, 204 P. 3d 916 ( 2009).

            Maxwell first contends that counsel provided ineffective assistance for not requesting a

 fingerprint analysis of the firearm found in the hotel room. and for not requesting that a

                               be                     the pay /
                                                              owe          sheets   found in the hotel   room.   Counsel' s
 handwriting       analysis         performed on




 decisions      were   legitimate trial    strategies.     By not requesting fingerprint or handwriting analyses,

 trial counsel avoided any possible negative findings from the analyses and was also able to argue

 at trial that the investigating officers had not done fingerprint or handwriting analyses nor did

 they have such proof that the items in the room were Maxwell' s or that the pay /owe sheets were
                                                                 9
44077 -6 -II



authored      by    him. Trial      counsel asked     Miller, "[   Y] ou didn' t have any fingerprints taken off of

      of   the    items, tinfoil   or otherwise ?" to which      Miller   responded   that he did   not "   believe   so."   2
any


RP    at   233.    Thus, counsel' s performance in not requesting fingerprint and handwriting analyses

was a legitimate trial strategy.

            Maxwell next asserts counsel provided ineffective assistance for objecting to a

photograph of him only for its depiction of his tattoo and not because it showed him in
handcuffs.         The challenged photograph is not in the record, and other than Maxwell' s argument

that the photograph shows him in handcuffs, there is no other evidence or support in the record

that the      challenged     photograph        shows   him in handcuffs.        Thus, we cannot properly review

Maxwell' s argument.


            Lastly, Maxwell contends counsel provided ineffective assistance for failing to object to
the jail phone conversations and allowing the State to play portions of the recording, which, in

turn, Maxwell argues allowed the jury to take his statements out of context. The State, however,

played      the entirety    of     the   call and not portions as     Maxwell   alleges.    Thus, this argument fails.


We hold Maxwell' s trial counsel provided effective assistance of counsel.


            B.         SUFFICIENCY OF THE EVIDENCE -               POSSESSION WITH INTENT TO DELIVER


            Maxwell asserts there is insufficient evidence to uphold his unlawful possession of a

 controlled substance with               intent to deliver   convictions.   We hold there was sufficient evidence


 to allow a rational trier of fact to find, beyond a reasonable doubt, that Maxwell is guilty of

 unlawful possession of a controlled substance ( methamphetamine, oxycodone, MDMA, and

 marijuana) with          intent to deliver.      See Salinas, 119 Wn.2d        at   201.   The officers found a small



 6 Maxwell does not specifically identify which unlawful possession with intent to deliver
 convictions he is challenging and, instead, argues generally that there is insufficient evidence to
 support the convictions.
                                                                 10
44077 -6 -II



baggie of marijuana, two MDMA tablets, 0. 1 grams of methamphetamine, fourteen oxycodone

pills, a marijuana pipe, a methamphetamine pipe, hollowed pens that are commonly used for

consumption of drugs, a piece of burnt foil with a black line down the middle, approximately

 2, 000 in cash, four cell phones, a roll of tinfoil, and pay /owe sheets in the hotel room in which

Maxwell     was      found sleeping.   Additionally, Maxwell provided a false name to officers when

asked    for his identification in the hotel      room.       Accordingly, there is sufficient evidence to

support Maxwell' s unlawful possession of a controlled substance with intent to deliver

convictions.



         We reverse Maxwell' s unlawful possession of a firearm conviction and remand for the

trial   court   to   dismiss the   conviction   with   prejudice   and   resentence   Maxwell.   We affirm.


Maxwell' s remaining convictions and sentences, including imposition of LFOs.

          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:




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