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                                                  2018 DEC —3 tali



 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                     DIVISION ONE

STATE OF WASHINGTON,                           No. 76960-0-1

                    Respondent,

      V.

JASON MICHAEL SMITH,
                                        )      UNPUBLISHED OPINION
                    Appellant.          )
                                        )      FILED: December 3, 2018
                                        )

      VERELLEN, J. —Jason Smith appeals his conviction for possession of

methamphetamine with intent to manufacturer or deliver. Because the

prosecutor's comment during closing argument concerning constructive transfer

was not improper, Smith fails to establish prosecutorial misconduct.

      Therefore, we affirm.

                                     FACTS

      On January 21, 2016, Sergeant Rory Bolter arrested Smith on probable

cause developed by the Snohomish County Regional Drug Task Force that Smith

was dealing drugs. After Smith was read his rights, he agreed to talk to Detective

William McCormick. Smith admitted there was approximately half an ounce of

methamphetamine in his vehicle.
No. 76960-0-1/2


       The State charged Smith with one count of possession of

methamphetamine with intent to manufacturer or deliver.

       At trial, Smith testified that he purchased the methamphetamine for himself

and his girlfriend with both of their money. Smith also testified that after

purchasing drugs, he usually put the drugs in a container for him and his girlfriend

to share.

       During closing argument, defense counsel argued the State failed to show

Smith intended to deliver the methamphetamine. On rebuttal, the prosecutor

argued, "[C]onstructive transfer is leaving the meth in a jar knowing that it's there

for the purpose of having your girlfriend get access to it and smoke it." Defense

counsel did not object. The jury convicted Smith as charged.

       Smith appeals.

                                     ANALYSIS

       Smith contends a new trial is required because the State committed

prosecutorial misconduct during closing argument.

      "Allegations of prosecutorial misconduct are reviewed under an abuse of

discretion standard."2 To prevail on a claim of prosecutorial misconduct, the

defendant bears the burden of establishing that the conduct was both improper




       1 Report of Proceedings(RP)(Jan. 10, 2017) at 336.
       2 State v. Brett, 126 Wn.2d 136, 174, 892 P.2d 29 (1995).
No. 76960-0-1/3


and prejudicia1.3 "A prosecuting attorney commits misconduct by misstating the

law."4

         Smith argues the prosecutor's comments were improper because he

misstated the law of constructive transfer.

         Under the Uniform Controlled Substances Act, "it is unlawful for any person

to manufacture, deliver, or possess with intent to manufacture or deliver, a

controlled substance."5 "'Deliver' or 'delivery' means the actual or constructive

transfer from one person to another of a substance, whether or not there is an

agency relationship."6

         The Uniform Controlled Substances Act does not define "transfer." "In the

absence of a legislative definition, we look to a common understanding of the term

as found in dictionaries."7 "Transfer" means "to carry or take from one person or

place to another," "to move or send to a different location," or "to cause to pass

from one person or thing to another.'"5

         In accord with this definition, this court previously defined "constructive

transfer" in the context of delivery of a controlled substance as "the transfer of a

controlled substance either belonging to the defendant or under his direct or



         3 State
              v. Thorgerson, 172 Wn.2d 438, 442, 258 P.3d 43(2011)(quoting
State v. Magers, 164 Wn.2d 174, 191, 189 P.3d 126 (2008)).
         4   State v. Allen, 182 Wn.2d 364, 373, 341 P.3d 268 (2015).
         5   RCW 69.50.401(1).
         6   RCW 69.50.101(h).
         7 State   v. Morris, 77 Wn. App. 948, 950, 896 P.2d 81 (1995).
         8   WEBSTER'S THIRD INTERNATIONAL DICTIONARY at 2426-27 (2002).


                                            3
No. 76960-0-1/4


indirect control, by some other person or manner at the instance or direction of the

defendant."9

       Here, during closing argument, the prosecutor argued, "[C]onstructive

transfer is leaving the meth in a jar knowing that it's there for the purpose of having

your girlfriend get access to it and smoke it."1°

       Smith argues this comment was improper because it misstated the law of

constructive transfer. Specifically, Smith contends he and his girlfriend had joint

possession of the methamphetamine, and he could not "transfer" the

methamphetamine to a joint possessor. Even accepting this contention, which is

unsupported by citation to authority, Smith fails to show his girlfriend had joint

possession of the methamphetamine.

       Although two people may jointly possess a controlled substance,

possession requires "dominion and control over the contraband or the premises

where the contraband is found."11 Smith fails to provide evidence that his girlfriend

had dominion and control over the methamphetamine when it was in his vehicle.

The evidence shows only that Smith had actual exclusive control of the

methamphetamine when it was in his vehicle.

      "Because of the nature of the charge of possession with intent to deliver,

evidence is usually circumstantial. But evidence of an intent to deliver must be



       9 State v. Campbell, 59 Wn. App. 61, 63, 795 P.2d 750(1990)(quoting
Davila v. State, 664 S.W.2d 722, 724 (Tex. Ct. App. 1984)).
       10 RP (Jan. 10, 2017) at 336.
       11 State v. Morgan, 78 Wn. App. 208, 212, 896 P.2d 731 (1995).


                                          4
No. 76960-0-1/5


sufficiently compelling that 'the specific criminal intent of the accused may be

inferred where it is plainly indicated as a matter of logical probability.'"12

       At trial, Smith testified that he purchased the methamphetamine for himself

and his girlfriend with both of their money. Smith also testified that after

purchasing drugs, "I put it in a container that's for both of us. And I keep it on the

shelf by my bed so she can smoke when she wants and 1 smoke."13 Smith's intent

to transfer the methamphetamine to his girlfriend is plainly indicated by this

evidence as a matter of logical probability. The intended transfer to a container in

the bedroom was constructive because Smith planned to place the

methamphetamine in a container to share with his girlfriend. As a result, the

prosecutor's statement that such evidence constituted constructive transfer was

not improper.

       Because the prosecutor's conduct was not improper, Smith fails to establish

prosecutorial misconduct.

       Smith filed a supplemental brief challenging the imposition of the $100

deoxyribonucleic acid (DNA)fee and the $200 criminal filing fee. When Smith was

sentenced, these two fees were mandatory. Effective June 7, 2018, the legislature

amended the DNA fee statute, adding the words "unless the [S]tate has previously

collected the offender's DNA as a result of a prior conviction."14 The legislature


       12 State
              v. Davis, 79 Wn. App. 591, 594, 904 P.2d 306 (1995)(internal
quotation marks omitted)(quoting State v. Kovac, 50 Wn. App. 117, 120, 747 P.2d
484 (1987)).
       13   RP (Jan. 10, 2017) at 228.
       14   LAWS OF 2018, ch. 269, § 18.


                                            5
No. 76960-0-1/6


also has exempted indigent defendants from the $200 filing fee.15 These

amendments apply prospectively to cases pending appea1.16

       The State acknowledges that the amendments apply to Smith and that "this

court should remand the matter to the trial court to strike the $200 filing fee and

the $100[DNA]fee."17

       We affirm Smith's conviction but remand for the trial court to strike the $100

DNA fee and the $200 criminal filing fee.




WE CONCUR:




oit't'KA


       15 State   v. Ramirez,    Wn.2d      , 426 P.3d 714, 722(2018).
       16   Id. at 721-23.
       17 Resp't's Supp. Br. at 4. The State notes there is no need to address
interest accrual on the fees to be stricken on remand. We agree. Upon striking
the DNA fee and the criminal filing fee, no interest will have accrued on those
stricken fees.


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