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                                                                                            C-UR T OF APPEALS
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                                                                                       2013 MAR 19 AV, 8:43
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                                                                       S

                                        DIVISION II                                     B

STATE OF WASHINGTON,                                              No. 43015 1 II
                                                                            - -


                              Respondent,        I          UNPUBLISHED OPINION


       V.




STUART A.BLAZEK,




       BJORGEN, J. — Stuart Blazek appeals from his conviction for unlawful possession of

oxycodone, arguing that the State did not present sufficient evidence that he possessed the

oxycodone and that his trial counsel was ineffective for not proposing a "momentary handling"

jury instruction. We affirm.'
       On May 11, 2009, Westport Police Officer Kevin Chaufty stopped Blazek's vehicle for

driving while license suspended. Officer Chaufty arrested Blazek and, during a search incident

to arrest, found a pill bottle in a jacket pocket. The label had been removed from the pill bottle.

When booking Blazek into the jail, Officer Chaufty found three pills in the inside mesh of

Blazek's jacket pocket. Those pills were identical to those in the pill bottle and were marked

512."
    Report of Proceedings (June 29,2009)at 6. There were 41 pills in the pill bottle. Blazek .

stipulated that the pills were oxycodone.

       The State charged Blazek with unlawful possession of oxycodone. At trial, Blazek called

Bernie Hurlburt, who testified that Blazek gave him a ride to a pharmacy where Hurlburt picked

up a prescription of oxycodone for Hurlburt's father. Hurlburt said while in Blazek's vehicle, he


 A commissioner of this court initially considered Blazek's appeal as a motion on the merits
under RAP 18. 4 and then transferred it to a panel of judges.
            1
No. 43015 1 II
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divided the 120 oxycodone pills that he picked up, putting approximately 40 pills each into two

pill bottles whose labels had been removed and leaving the remainder in the bottle from the

pharmacy. Hurlbut then put the pill bottles into his backpack. He said he divided the pills to

prevent his father from overdosing. An hour after Blazek dropped Hurlburt off at his home,

Hurlburt   unpacked       his   backpack   and discovered that    one   of the   pill   bottles   was   missing.   He


identified the    pill   bottle found in Blazek's   pocket   as   the bottle that       was   missing. Even after

learning of Blazek's arrest for possessing the oxycodone, Hurlburt did not inform the police that

the pills were his father's.

       Blazek testified that after dropping off Hurlburt, he noticed a pill bottle on the floorboard

of his vehicle. As he was putting the pill bottle in his pocket, the lid came off, spilling some

pills. Blazek testified that he thought he had put all the pills back into the bottle. He said that he

was driving to Hurlburt's house to return the pills when Officer Chaufty stopped him.

       The trial court gave the following unwitting possession instruction requested by Blazek's

counsel:


                  A-
                   person -is -- -guilty of possession of a -controlled -substance if the -
                               not       - -                              -
       possession        is   unwitting. Possession of a controlled substance is unwitting if a
       person did not know that the substance was in his possession or did not know the
       nature of the substance.
                The burden is on [Blazek] to prove by a preponderance of the evidence
       that the substance    was possessed unwittingly.  Preponderance of the evidence
        means that you must be persuaded, considering all of the evidence in the case, that
        it is more probably true than not true.

Clerk's Papers at 23, 31.

        The jury found Blazek guilty as charged.

        On appeal, Blazek argues first that the State failed to present sufficient evidence that he

possessed   the   oxycodone. He contends that the State showed only that he had momentarily

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handled the oxycodone and had not shown that he had actual control over the oxycodone.

Evidence is sufficient if,when viewed in the light most favorable to the State, it permits any

rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State

v. Salinas, 119 Wn. d 192, 201, 829 P, d 1068 (1992). A claim of insufficiency admits the
                  2                  2                "

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

Salinas, 119 Wn. d at 201.
               2

         To establish actual possession of a controlled substance, the State must prove that the

defendant had " ctual control, not a passing control which is only a momentary handling."State
              a

v. Callahan, 77 Wn. d 27, 29, 459 P. d 400 (1969);
                  2                2             State v. George, 146 Wn. App. 906, 920,

193 P. d 693 (2008).Thus, the question of momentary handling goes to whether the evidence is
     3

sufficient to allow the trier of fact to find possession beyond a reasonable doubt. See State v.

Staley, 123 Wn. d 794, 800 01, 872 P. d 502 (1994).To possess means to have "actual control,
              2            -        2
care   and management of, and not   a   passing   control ... "   Staley, 123 Wn. d at 801 (citing U. . v.
                                                                                2                   S

Landry, 257 F.d 425 (7 Cir. 1958)). this inquiry, the duration of the handling is only one
             2                    In
                          Staley, 123 Vn2d ar 801 _
factor to be considered. --           - - . -                 A momentary handling, along with other - - - -

sufficient indicia of control over the drugs, can support a finding of possession under the totality

of the circumstances. Staley, 123 Wn. d at 802; State v. Summers, 107 Wn. App. 373, 386 87,.
                                    2                                                   -

28 P. d 780 (2001).
    3

         Here, the State presented evidence that Blazek had the oxycodone in his jacket pocket

while in a car over which he had complete control from the time the pills spilled to when he was

stopped by the officer. This was sufficient evidence for a jury to find beyond a reasonable doubt



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that he actually possessed the oxycodone. The jury was free to reject Blazek's and Hurlburt's

testimony.

       Second, Blazek argues that he received ineffective assistance of counsel when his trial

counsel did not offer      momentary handling" jury instruction based
                         a "                                               on   Staley. To establish

ineffective assistance of counsel, Blazek must demonstrate that his counsel's performance fell

below an objective standard of reasonableness and that. s a result of that deficient performance,
                                                      a

the result of his case probably would have been different. State v. McFarland, 127 Wn. d 322,
                                                                                     2

335 36,899 P. d 1251 (1995);
    -       2              Strickland v. Washington, 466 U. . 668, 687, 104 S. Ct. 2052, 80
                                                          S

L.Ed. 2d 674 (1984).

       Staley and Summers make clear, though, that "momentary handling" is relevant only to

whether the defendant had actual possession of the controlled substance. Staley, 123 Wn. d at
                                                                                       2

802; Summers, 107 Wn. App. at 386. Since there is no defense of " omentary handling,"
                                                                m                   it

would have been improper for the trial court to have instructed the jury on such a defense. Thus,

it was not deficient performance for Blazek's counsel not to have requested such an instruction.

Staley, 123 Wn. d at 802; Summers 1 07 -
              2                   - - Wn.App. at 387 88. -
                                          -          =   Unwitting possession, on the

other hand, is a defense to possession. Staley, 123, Wn. d at 802. Blazek's counsel requested
                                                       2
and the court issued an instruction on this defense. These actions do not demonstrate ineffective

assistance of counsel.


       We affirm Blazek's conviction.


       A majority of the panel having determined that this opinion will not be printed in the




                                                 0
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Washington Appellate Reports, but will be filed for public record in accordance with RCW

040,
2.6.it is so ordered.
 0

                                                       s


                                                                    6



                                                BJ   GEN

We concur:




 UINN-
     BRINTNALL, J.


J HANSON, A. .
          J.
           C




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