    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 STATE OF WASHINGTON,
                                                          No. 70806-6-I
                      Respondent,                                                      CT»   "fa.' h~
                                                          DIVISION ONE                       m

               v.

                                                          UNPUBLISHED OPINION £              S>r-
 ALAN JOHN NORD,                                                                      3s-    <s>r?-.'~.


                      Appellant.                )         FILED: March 23,2015        V?
                                                                                      o
                                                                                      (v



       Appelwick, J.     —   Nord appeals his conviction for unlawful delivery of

methamphetamine, unlawful possession of methamphetamine, and attempting to elude

a pursuing police vehicle.     He contends that the trial court wrongfully admitted the

testimony of a police officer relaying an out-of-court statement of a confidential informant,

and that the admission of that hearsay violated his right to confrontation. He asserts that

the charging document was insufficient, because it omitted an essential element of the

crime of attempting to elude a pursuing police officer. Nord claims that the trial court

made errors regarding three jury instructions and that the prosecutor engaged in

misconduct. He argues that the court erred by not vacating the conviction for possession,

because it violated the prohibition against double jeopardy. We affirm in part, reverse

and vacate the eluding conviction, and remand for resentencing.

                                          FACTS


       On April 10, 2013, the Bellingham Police Department conducted a controlled buy

of methamphetamine (meth) from Alan Nord. Detective Bill Medlen was in charge of the

operation. Detective Medlen was working with an informant, Brad Cave. Cave agreed to

help the police gather evidence and successfully prosecute others in exchange for

leniency for some of his own charges.
No. 70806-6-1/2



       On the day of the controlled buy, while in Detective Medlen's presence, Cave made

a phone call to arrange for the drug delivery. Detective Medlen put his ear up to the

phone during the call so that he could hear the person on the other end of the line.

Detective Medlen recognized the voice as Nord's. Cave and Nord were discussing a time

that day for Cave to purchase a quarter ounce of meth from Nord. Cave told Nord he

wanted to "hook up with him," and Nord told Cave that he was in Skagit County picking

up "product" and would not be back in Bellingham for a few hours.

      After a few more phone calls, Nord and Cave set Cave's home as the location for

the buy. Cave's home was not an ideal location for the buy, because the police officers

did not have the opportunity to search it beforehand to make sure that Cave did not

already have meth or money in the home. But, Detective Medlen was able to search

Cave's person and Cave's vehicle beforehand, and he found no money or narcotics.

      After searching Cave, Detective Medlen gave him $260 in prerecorded buy money

to complete the sale. Several police officers set up visual surveillance of Cave's house.

As the other units set surveillance locations on Cave's street, Detective Medlen followed

Cave as he drove to his home, watched Cave go into his driveway and subsequently

enter his house. Detective Medlen did not enter the driveway, but watched Cave's house

from the street. The entrance of the house was at the back of the building, out of view.

       Detective Medlen saw a white Honda, which Nord had been known to drive, arrive

at Cave's house. Cave was out of Medlen's sight for about 10 minutes prior to Nord's

arrival. Detective Medlen stayed in contact with Cave during the buy via text messages

and with other officers via radio.   Detective Medlen saw the Honda leave less than 15

minutes after he saw it arrive at Cave's house.    Less than one minute after Detective
No. 70806-6-1/3




Medlen saw the Honda leave and saw other officers following it, Detective Medlen went

into Cave's house. Cave handed Detective Medlen a plastic bag containing a quarter

ounce of meth.     Detective Medlen searched Cave's person again and Cave's home.

Detective Medlen did not find any buy money or other drugs on Cave's person or in his

house.


         As the Honda left Cave's driveway, other officers on surveillance and in

communication with Detective Medlen identified Nord as the driver. One officer deployed

spike strips and the Honda's front two tires blew out. Nord sped off. As he did, his back

tires hit the spike strips and they began to blow out. Officers observed a passenger in

the front seat of the vehicle and thought there may have also been a passenger in the

back. Officers continued to pursue Nord, chasing him with visible emergency lights and

audible sirens. Upon reaching a major parkway, at least four marked police cars with

their lights and sirens on were pursuing Nord's vehicle. As he continued to drive, Nord

drove into the oncoming lane of traffic, forcing cars to pull over to avoid a collision. As

Nord drove, all of his tires were flat with rubber flying off of them. Nord failed to stop at a

stop sign. Several times during the pursuit, Nord's vehicle nearly went off of the road.

         After chasing Nord for miles, an officer in a marked police vehicle passed Nord.

As he did so, Nord looked right at him and the officer could clearly see Nord. The officer

also saw that Nord was speaking with someone on a cell phone.

         After a total of 10 miles of pursuit, Deputy Jason Nyhus was finally able to force

Nord off of the road. Nord tried to get the car back on the road. After the car came to

rest, an officer deployed nonlethal shots into the back window of the car to shatter the

window and obtain a better visual. After repeated commands to exit the vehicle, Nord
No. 70806-6-1/4




finally did, but refused to get on the ground. The officers deployed additional nonlethal

rounds to get Nord to comply. The police arrested Nord. Two adult passengers, one

man, and one woman were also in the car.

      After Nord was detained, officers searched the Honda pursuant to a search

warrant. The officers found a scale and a box of empty Ziploc bags. Officers also found

Nord's wallet and social security card on the driver's side floorboard with a bag of meth

and a cell phone that Cave had called earlierthat day. The wallet had over $100 in it and

one of the $20 bills was a bill from the prerecorded buy money. Detective Medlen did not

know what happened to the other $240. The police found six other cell phones in the

Honda's console.

       Nord was charged with unlawful delivery of a controlled substance

(methamphetamine), unlawful possession of a controlled substance (methamphetamine),
attempting to elude a pursuing police vehicle, and assault in the third degree.
       On April 15, 2013, from jail, Nord made a phone call to a friend. Nord told the
friend that Cave was the only one he had talked to about "clear" and dealt "clear" to the

day of his arrest.

       The trial court found Nord guilty of all counts except assault in the third degree. At

sentencing, Nord faced a standard range sentence of 60-120 months for the delivery
count, 12-24 months for the possession count, and 34-41 months for the eluding count.
The court imposed the high end of the standard range sentence on all counts. Nord
appeals the judgment and sentence.
No. 70806-6-1/5



                                       DISCUSSION


        Nord argues that the trial court admitted hearsay evidence and violated his right of

confrontation, because it allowed Detective Medlen to testify as to Cave's out-of-court

testimonial statements that he overheard during the phone call with Nord. He argues that

the trial court erred when it provided the jury with an accomplice liability instruction based

on those statements. Nord contends that the charging document failed to include all

essential elements of the offense of attempting to elude a pursuing police vehicle. He

further argues that the trial court erred when it did not provide the jury with Nord's

requested unwitting possession instruction.        And, Nord claims that the prosecutor

engaged in misconduct. Finally, Nord maintains that the trial court erred by not vacating

his possession conviction, because it violated the prohibition against double jeopardy.

   I.   Hearsay

        Nord argues that Detective Medlen's testimony referring to Cave's out-of-court

statements is inadmissible hearsay that should have been excluded from trial. Nord

argues that, but for the admission of this hearsay, the State would not have been able to

establish that Nord was guilty of delivery of meth.

        Whether a statement is hearsay is a question of law that is reviewed de novo.

State v. Edwards. 131 Wn. App. 611, 614, 128 P.3d 631 (2006). "Hearsay" is an out of

court statement offered to prove the truth of the matter asserted.           Id.; ER 801(c).

Statements are not hearsay if they are not offered to prove the truth of the matter

asserted. State v. Chambers. 134 Wn. App. 853, 859, 142 P.3d 668 (2006).

        At trial, the State called Detective Medlen to testify about the controlled buy. The

State began by questioning Detective Medlen about one of Cave's phone calls with Nord.
No. 70806-6-1/6




Detective Medlen testified that, when Cave called Nord, he was able to listen while the

phone call took place by putting his ear next to the phone. The questioning went as

follows:


       Q.    And could you hear what the person at the other end of the phone
             line [w]as saying?

       A.    Yes, sir. The informant was talking to the male wanting to set up a
             purchase of a certain amount of methamphetamine.

       Q.    Okay. And did you recognize the voice on the other end of the
             phone?

       A.    I did. I recognized it as Mr. Nord.

       Q.    Okay. And, ah, how long did that phone call continue? How much
             time elapsed?

       A.    Not too long. About a minute. Just long enough for Mr. Cave, the
             informant, to tell Mr. Nord he was looking for a quarter, which was a
             quarter ounce and the phone call - do you want me to explain the
             phone call?

       Q.    Well, explain the content if you could, please?

       A.    So Mr. Cave called Mr. [sic] In order to say he was interested in
             buying a quarter --

                      MR. LARSON: Objection, hearsay.

                      MR. CHAMBERS: No.        The truth of the matter is irrelevant.
             It's not offered for the truth of the matter asserted because they are
             setting up a dope deal and no word on operative on their own -- it's
             not offered for the truth.

                      MR. LARSON: I think it is absolutely offered for the truth, Your
             Honor.

                      THE COURT: I will allow the testimony. Go ahead.

After the court permitted the testimony, Detective Medlen continued:

       So Mr. Cave was explaining to Mr. Nord [that] he wanted to buy a quarter
       ounce of methamphetamine, wanted to hook up with him, which is a
       common term for meet for the exchange. Mr. Nord explained that he was
No. 70806-6-1/7



      currently down in Skagit County picking up the product and he would be a
      few hours before he got back to Bellingham.

      Nord contends that Cave's statements were offered for the truth of the matter

asserted, because they were offered to prove that Cave wanted to meet to purchase a

quarter ounce of meth. Nord cites to a recent case, State v. Hudlow. 182 Wn. App. 266,

331 P.3d 90 (2014), where the court considered a similar hearsay challenge involving an

informant. The facts in Hudlow are very similar to the facts at issue here, but with one

notable difference.   In Hudlow. the informant was in the backseat of the testifying

detective's car and the detective was able to hear only what the informant was saying—

not what Hudlow was saying on the other end of the phone line. id. at 271, 281. At trial,

the detective summarized the conversation between the informant and Hudlow and said

that arrangements were made between the two to purchase meth at the Jack in the Box
in Kennewick. id at 272. Hudlow challenged the detective's testimony as hearsay, id

at 276. The State argued that the testimony was admissible to show the detective's state

of mind, id. The Hudlow court found that the detective's testimony was relevant only if
offered to prove Hudlow planned to sell the illicit drugs and that the detective learned

these facts by hearing the informant's out-of-court statements. id at 281. Thedetective's
state of mind was not an issue in controversy, id, at 280. Therefore, the court concluded

that the testimony was inadmissible hearsay. id at 281.

       Nord's case is distinguishable from Hudlow's. In Hudlow. the detective never

heard Hudlow's statements nor directly quoted Hudlow. id The State attempted to use

the informant's statements independently as a means of proving that Hudlow set up the

drug deal, id As a result, the State was unable to provide a valid, nonhearsay purpose
for the testimony besides its use to prove the truth of the matter asserted, id
No. 70806-6-1/8




        Here, by contrast, Detective Medlen heard both sides of the conversation. Nord

has not challenged the admissibility of his own statements made in the conversation with

Cave.    Nord's statements are put in context by the other half of the conversation—

Detective Medlen's testimony about Cave's statements—whether or not what Cave said

was true.    In context, it is clear that the two were having a dialogue about a drug

transaction.1

        This was the case in Chambers where the defendant's agent and coconspirator

purchased meth on behalf on the defendant. 134 Wn. App. at 855-56, 859. The trial

court allowed into evidence the agent's statements that the agent told the seller that he

"'had the money'" for the buy and that he asked how much "'it was.'" ]d at 856, 859. The

Chambers court reasoned that the State did not offer the agent's statements to prove that

the agent in fact had money or cared about the price, id at 859. Rather, the State offered

the statements to prove that a dialogue occurred between the agent and the seller about

purchasing drugs, id. Consequently, it ruled that the statements were not hearsay, id.

        Similarly, a statement is not hearsay if it is used only to show the effect on the

listener without regard to the truth of the statement. Edwards. 131 Wn. App. at 614. This

is the case here. The State used Cave's statements to show their effect on Nord—not to

prove that Cave conspired to purchase meth. It made no difference to the State's case

whether Cave was telling the truth or lied about wanting to purchase meth. What matters

is what words Cave spoke to Nord. Those words complete the conversation. They inform




        1 Nord referred to "picking up the product." This statement, taken alone, is vague
and unclear. Cave's statements showed that Nord referred to "product" after hearing
Cave say he was interested in purchasing meth.


                                                8
No. 70806-6-1/9




what Nord meant when he responded that he was picking up the product and would be

back in a few hours.


      The theory of the hearsay rule is that cross-examination is the best way to reveal

whatever untrustworthiness lies beneath the assertions of a witness.       State v. Chapin.

118 Wn.2d 681, 685, 826 P.2d 194 (1992).           Accordingly, one rationale behind the

exclusion of hearsay evidence is that there is no way to cross-examine the declarant

witness. State v. Stenson. 132 Wn.2d 668, 711, 940 P.2d 1239 (1997). Here, again,

there is no underlying concern about whether Cave's assertions that he wanted to buy

meth from Nord are trustworthy. Rather, the concern is whether Detective Medlen told

the truth in recounting Cave's statements and Nord's responses.           Detective Medlen

testified and was subject to cross-examination. His testimony was not hearsay.

       Nord argues that, even if Detective Medlen's testimony was not hearsay, Cave's

statements were still used later in trial to prove the truth of the matter asserted without a

requisite limiting instruction. But, Nord did not request a limiting instruction. The trial

court is not required to give limiting instructions sua sponte. State v. Russell. 171 Wn.2d

118, 123, 249 P.3d 604 (2011).

   II. Confrontation Clause

       Nord argues that, even if the statements in question were not hearsay, their

admission violated his right to confrontation under the Sixth Amendment to the United

States Constitution and article I, section 22 of the Washington Constitution.

       "In all criminal prosecutions, the accused shall enjoy the right... to be confronted

with the witnesses against him." U.S. Const, amend. VI. We review an alleged violation
No. 70806-6-1/10




of the confrontation clause de novo. State v. Price. 158 Wn.2d 630, 638-39, 146 P.3d

1183(2006).

       Nord did not argue below that the admission of Cave's statements violated his

confrontation clause rights. Nonetheless, Nord claims that he is entitled to bring his

confrontation clause challenge for the first time on appeal, because it is a manifest error

affecting a constitutional right under RAP 2.5(a)(3).2 RAP 2.5(a)(3) allows appellants to

raise claims for the first time on appeal if such claims constitute manifest error affecting

a constitutional right. See also. State v. Kronich. 160 Wn.2d 893, 899-01, 161 P.3d 982

(2007). overruled on other grounds by State v. Jasper. 174 Wn.2d 96, 116, 271 P.3d 876

(2012).

       The State contends that Nord waived his confrontation clause challenge, because

he raised it for the first time on appeal. It cites to State v. O'Cain. 169 Wn. App. 228, 247-

48, 279 P.3d 926 (2012) for the assertion that Nord cannot raise his confrontation clause

challenge for the first on appeal notwithstanding RAP 2.5(a)(3).

          In O'Cain. this court declined to consider a defendant's confrontation clause claim

for the first time on appeal. 169Wn. App. at 248. We noted that, underthe United States
Supreme Court's decision in Melendez-Diaz v. Massachusetts. 557 U.S. 305, 129 S. Ct.
2527, 174 L. Ed. 2d 314 (2009), a defendant loses the right to confrontation by not

objecting to the offending evidence but that states may govern the means by which
defendants may assert the right to confrontation by adopting rules applicable to trial court
proceedings. O'Cain, 169 Wn. App. at 236-37. The O'Cain court reasoned that if it were

          2 Nord does not argue, and therefore we do not analyze, whether a hearsay
objection at the trial court, if overruled, is adequate to a preserve a confrontation clause
challenge on appeal.

                                                  10
No. 70806-6-1/11




not the defendant's burden to object at the trial court, the trial judge would be placed in

the position of sua sponte interposing confrontation objections on the defendant's behalf

or risk knowingly presiding over a trial headed for apparent reversal on appeal. ]d at 243.

The court opined that objecting on confrontation clause grounds is trial counsel's tactical

decision in which trial judges should not interfere, jd

       As a result, the O'Cain court held that Washington's ER 103—which precludes

claims of error "'predicated'" on rulings admitting or excluding evidence without a timely

and specific objection—is in accord with Melendez-Diaz and trumps RAP 2.5(a)(3). id

at 242-43, 247-48 (quoting ER 103(a)(1)). As such, O'Cain was precluded from raising

his confrontation clause challenge for the first time on appeal, id at 248.

       Nord contends that this court's decision in State v. Fraser. 170 Wn. App. 13, 26-

27, 282 P.3d 152 (2012), dictates that this court should engage in a RAP 2.5(a)(3)

analysis notwithstanding the decision in O'Cain.

       In Fraser. we adhered to our decision in O'Cain. but acknowledged that RAP

2.5(a)(3) may be an example of a state procedural rule that governs the exercise of

confrontation clause objections permitted by Melendez-Diaz. Fraser. 170 Wn. App. at

26-27. The Fraser court then opted to engage in a RAP 2.5(a)(3) analysis, id at 27.

       Because the Fraser court acknowledged that RAP 2.5(a)(3) is possibly a

procedural rule by which Washington State allows defendants to raise confrontation

clause objections for the first time on appeal, it engaged in the alternative RAP 2.5(a)(3)

analysis. For the reasons stated in O'Cain. we do not believe that RAP 2.5(a)(3) is an

example of a state procedural rule that permits a confrontation clause challenge to be

raised for the first time on appeal in this case. To the extent there was error below, the


                                                11
No. 70806-6-1/12




error was not caused by the trial court, but rested with Nord's trial counsel's failure to

object based on confrontation clause grounds. The proper challenge on appeal would be

one based on ineffective assistance of counsel. See Hudlow. 182 Wn. App. at 277. Nord

does not make an ineffective assistance of counsel argument on appeal.3              By not

objecting below, Nord waived his confrontation clause challenge on appeal. Unlike the

Fraser court, we decline to engage in an alternative RAP 2.5(a)(3) analysis.4

   III. Sufficiency of the Charging Document on Eluding

       Nord argues for the first time on appeal that the charging document omitted an

essential element of the offense of attempting to elude a pursuing police vehicle.

Specifically, Nord contends that the charging document omitted the essential element that

the defendant acted "willfully." He contends that the missing element cannot be implied

from the charging document. He argues that this error requires reversal of the conviction,

vacation of the restitution order, and resentencing.

       This court reviews challenges to the sufficiency of a charging document de novo.

State v. Williams. 162 Wn.2d 177, 182, 170 P.3d 30 (2007). When hearing a challenge

to the sufficiency of the charging document for the first time on appeal, the court liberally

construes the document. State v. Kiorsvik. 117 Wn.2d 93,103, 812 P.2d 86 (1991). This

is intended to discourage defendants who may recognize the deficiency in the charging



       3 Nord cites to the Hudlow court's recognition of the possibility for an ineffective
assistance of counsel claim when trial counsel does not raise a confrontation clause
challenge. But, Nord does not specifically contend that he was subject to ineffective
assistance of counsel.
        4 Because Detective Medlen's testimony was not hearsay and because Nord
waived his confrontation clause challenge, we need not address Nord's argument that the
trial court erred in instructing the jury on accomplice liability based on Officer Medlen's
erroneously admitted testimonial statements.


                                                 12
No. 70806-6-1/13




document below, but save their challenge for appeal after receiving an unfavorable

judgment. ]d

      To be constitutionally adequate, a charging document must include all essential

elements of the crime, id. at 101-02. An essential element is one whose specification is

necessary to establish the very illegality of the behavior. State v. Johnson. 119 Wn.2d

143,147, 829 P.2d 1078 (1992). Under the rule of liberal construction, even ifthere is an

apparently missing element, it may be able to be fairly implied from language within the

charging document. Kiorsvik. 117 Wn.2d. at 104. If the court does not find the missing

element, prejudice is presumed and we reverse without reaching the question of

prejudice. State v. McCartv. 140Wn.2d 420,425-26, 998 P.2d 296 (2000). If the element

is fairly implied, we ask whether the defendant was actually prejudiced by the "inartful

language." Kiorsvik. 117 Wn.2d. at 104-05; McCartv. 140 Wn.2d at 425. The primary
purpose of this rule is to give defendants sufficient notice of the charges so they can

prepare an adequate defense. Kiorsvik. 117 Wn.2d. at 101.

   The statute on attempting to elude a police vehicle provides, in part:

       Any driver of a motor vehicle who willfully fails or refuses to immediately
       bring his or her vehicle to a stop and who drives his or her vehicle in a
       reckless manner while attempting to elude a pursuing police vehicle, after
       being given a visual or audible signal to bring the vehicle to a stop, shall be
       guilty of a class C felony. The signal given by the police officer may be by
       hand, voice, emergency light, or siren. The officer giving such a signal shall
       be in uniform and the vehicle shall be equipped with lights and sirens.
RCW 46.61.024(1) (Emphasis added.) The amended information charging Nord read:

       That on or about the 10th day of April, 2013, the said defendant, ALAN
       JOHN NORD, then and there being in said county and state, did fail to
       immediately bring his vehicle to a stop after a uniformed office [sic] driving
       an appropriately marked police vehicle, equipped with emergency lights and
       siren, gave a visual or audible signal to bring his vehicle to a stop and did


                                                 13
No. 70806-6-1/14


       drive his vehicle in a reckless manner while attempting to elude a pursuing
       police vehicle, in violation of RCW 46.61.024, which violation is a Class C
       Felony and during the commission of this offense did endanger one or more
       persons for the purposes of RCW 9.94A.533(11).

       Nord argues that the omission of the word "willfully" from the charging document

did not inform him that in order to be convicted of attempting to elude he needed to (1)

willfully fail to stop and (2) that he needed to know that he was being pursued by a police

vehicle. The State concedes that "willfully" is an essential element and that it does not

appear on the face of the charging document. But, it argues that "willfully" failing to stop

can be fairly implied from the charging document's reference to Nord committing the

offense while attempting to elude the police vehicle.

       One Washington case defined "attempt" in the context of RCW 46.61.024. See

State v. Gallegos. 73 Wn. App. 644, 650, 871 P.2d 621 (1994). While the Gallegos court

analyzed a former version of the statute and considered an evidentiary challenge instead

of a sufficiency of the charging document challenge, the decision is still instructive, id at

649-50. The court in Gallegos reasoned that the word "attempt" in the statute has nothing

to do with criminal attempt and must be given its ordinary meaning of "'to try.'" id at 650.

Accepting that "attempting to" takes on its ordinary meaning and implies a volitional

element, we still must determine whether "attempting to" extends to the "fails to stop"

element of the statute and implies the necessary mental state for that element.

       This court considered the relationship between the word "attempt" and the

elements of the attempting to elude statute in State v. Stavton. 39 Wn. App. 46, 691 P.2d

596 (1984). The Stavton court, considered an earlier version of the attempting to elude

statute in the context of a challenged "to convict" jury instruction, id at 47. The court

broke the requirements of the statute into three elements that it claimed needed to occur


                                                 14
No. 70806-6-1/15




chronologically: (1) a uniformed police officer whose vehicle is appropriately marked must

give a signal, (2) the driver must be a person who willfully fails or refuses to stop

immediately, and (3) while attempting to elude a pursuing police vehicle the driver drives

recklessly, id at 49. Ultimately, the Stavton court held that the phrase "'while attempting

to elude a pursuing police vehicle'" modifies only the element that specifies the criminal

manner of driving which ensues after a driver's willful failure to stop—driving recklessly,

id at 50. In other words, attempting to elude does not provide a mental state for all of

the elements of the attempting to elude statute. Instead, recklessly provides the mental

state for how a driver must be driving while attempting to elude a police vehicle.

       "Willfulness" in the attempting to elude statute context is identical with knowledge.

State v. Flora. 160 Wn. App. 549, 553, 249 P.3d 188 (2011). There can be no attempt to

elude unless there is the prerequisite knowledge that there is "'a pursuing police vehicle.'"

Stavton. 39 Wn. App. at 49 (quoting former RCW 46.61.024 (1983)). There can be no

willful failure to stop unless there is the prerequisite knowledge that a statutorily

appropriate signal has been given by a statutorily appropriate police officer. ]d at 49-50.

       Here, "attempting to" or "trying to" elude a pursuing police vehicle, does not inform

Nord that the State must prove that he knew he was given a statutorily appropriate signal

to stop and knew it was given by a statutorily appropriate police officer and knew that it

was a police vehicle that was pursuing him. On its face, the charging document would

allow conviction if the state proved an officer gave an appropriate signal, Nord failed to

stop, Nord was pursued by a police vehicle, and Nord was driving recklessly while trying

to elude the vehicle. Even under a liberal reading, the language does not fairly imply that

Nord could defend on the basis that he did not know a signal was given, did not know the


                                                 15
No. 70806-6-1/16




person giving a signal was a police officer, or did not know that the vehicle pursuing him

was a police vehicle.

         Because the missing element cannot be fairly implied, prejudice is presumed.

McCartv. 140 Wn.2d at 425-26. We reverse the trial court and vacate Nord's attempting

to elude a pursuing police officer conviction.

         Nord also requests resentencing and vacation of the restitution order, because we

reverse his attempting to elude conviction. The State concedes that if we reverse Nord's

eluding conviction, Nord is entitled to resentencing. We vacate the restitution order and

remand for resentencing.5

   IV.      Unwitting Possession Jury Instruction

         Nord argues that the trial court erred when it did not provide the jury with an

unwitting possession instruction.     He contends that this error requires reversal of the

possession conviction.

         A trial court must instruct on a party's theory of the case if the law and evidence

support it. State v. Otis. 151 Wn. App. 572, 578, 213 P.3d 613 (2009).             Unwitting

possession is a judicially created affirmative defense that may excuse violation of the

offense of possession of a controlled substance. State v. Buford. 93 Wn. App. 149, 151-

52, 967 P.2d 548 (1998). A criminal defendant is not entitled to an unwitting possession

instruction unless the evidence presented at trial is sufficient to permit a reasonable juror

         5See State v. Osborne. 140 Wn. App. 38, 42, 163 P.3d 799 (2007) (holding that a
court may not require restitution beyond the crime charged if the defendant did not
expressly agree to pay restitution or if the state failed to establish a causal connection
between the crime and damages); State v. Houf. 120 Wn.2d 327, 333, 841 P.2d 42 (1992)
(finding that sentencing decisions should only consider the actual crime of which the
defendant has been convicted, his or her criminal history, and the circumstances
surrounding the crime).


                                                 16
No. 70806-6-1/17




to find, by a preponderance of the evidence, that the defendant unwittingly possessed the

contraband, jd at 152. The defendant is entitled to the benefit of all the evidence—no

matter which party presented it. State v. Callahan. 87 Wn. App. 925, 933, 943 P.2d 676

(1997); State v. Olinger. 130 Wn. App. 22, 26, 121 P.3d 724 (2005). The evidence is

viewed in the light most favorable to the defendant. Otis. 151 Wn. App. at 578. A trial

court's refusal to give instruction to a jury, if based on a factual dispute, is reviewable for

abuse of discretion. State v. Walker. 136 Wn.2d 767, 771-72, 966 P.2d 883 (1998),

adhered to on remand, noted at 173 Wn. App. 1027 (2013).

       Nord argues that he was entitled to the unwitting possession jury instruction,

because the meth was found on the floor of the Honda and there were two other adult

passengers in the car who could have owned the meth. He contends that while the meth

was found on the driver's side of the car, it is common for items to slide around on the

floor of cars. He contends that this evidence admitted by the State is sufficient to permit

a reasonable juror to find, by a preponderance of the evidence, that Nord unwittingly

possessed meth.

       While Nord is correct that he is entitled to the benefit of all of the evidence and that

it is to be viewed in the light most favorable to him, no evidence suggested that the drugs

slid around in the car, had been in the possession of another, or belonged to someone

else. Some basic facts must be put into evidence that would prevent a jury from merely

engaging in speculation or conjecture. Buford. 93 Wn. App. at 153.

       Instead, the evidence showed that the bag of meth, Nord's wallet, and Nord's cell

phone were found on the driver's side floorboard of the car that he had been driving




                                                 17
No. 70806-6-1/18




immediately before his arrest. We find that the trial court did not abuse its discretion when

it denied Nord's request for an unwitting possession jury instruction.

   V.      Prosecutorial Misconduct

        Nord argues that he was deprived of his right to a fair trial, because the prosecution

engaged in flagrant and ill-intentioned misconduct. Nord makes these assertions based

on remarks the prosecutor made during closing argument. He claims his failure to object

at trial is immaterial because the remarks were so prejudicial that they would not have

been cured by an instruction.

        An appellant claiming prosecutorial misconduct must show both improper conduct

and resulting prejudice. State v. Walker. 164 Wn. App. 724, 729, 265 P.3d 191 (2011).

Prejudice exists only where there is a substantial likelihood the misconduct affected the

jury's verdict, id A prosecutor's comments during closing argument are reviewed in

context of the total argument, the issues in the case, the evidence addressed in the

argument, and the jury instructions, jd The absence of a motion for mistrial at the time

of the argument strongly suggests to a court that the argument or event in question did

not appear critically prejudicial to an appellant in the context of the trial. State v. Swan.

114 Wn.2d 613, 661, 790 P.2d 610 (1990). Defense counsel's failure to object to alleged

prosecutorial misconduct at trial fails to preserve the issue for appeal, unless the

misconduct is so flagrant and ill-intentioned that it evinces an enduring and resulting

prejudice incurable by a curative instruction. ]d

        First, Nord challenges the remarks the prosecutor made regarding the actions of

Deputy Nyhus—the police officer who eventually forced Nord's car off the road. The

prosecutor described the officer's actions as "selfless" and "heroic." Nord argues the


                                                  18
No. 70806-6-1/19




prosecutor insinuated the jury should find Nord culpable so that the officer's actions would

be reinforced and appreciated.

       Nord relies on State v. Casteneda-Perez. 61 Wn. App. 354, 810 P.2d 74 (1991),

for the assertion that a prosecutor's remarks are improper if they insinuate that an

acquittal would denigrate the police.     In Casteneda-Perez. the court held that it was

improper for a prosecutor to create a false choice for the jury of finding the defendant

guilty or finding that the police officer witnesses were deliberately giving false testimony,

id 360, 362-63.

       The case at hand is distinguishable. The assault charge was based on Nord's

actions against Deputy Nyhus. In order to find Nord guilty of third degree assault, the jury

had to find that Deputy Nyhus had apprehension and fear of bodily injury based on Nord's

driving. The relevant jury instruction read, "An assault is an act, with unlawful force, done

with the intent to create in another apprehension and fear of bodily injury, and which in

fact creates in another a reasonable apprehension and imminent fear of bodily injury."

(Emphasis added.) The prosecutor stated in closing argument: "You know, the question

is meanwhile if [Officer Nyhus was] afraid and [Officer Nyhus] didn't want to have a

collision, [Officer Nyhus is] afraid of pursuing [Nord], why didn't [Officer Nyhus] just stop?"

The prosecutor was attempting to make its case on Nord's assault charge. He asked the

jury to consider that Officer Nyhus was afraid but acted selflessly and heroically by

pursuing Nord anyway. He was not attempting to express to the jury that an acquittal

would cast the veracity of Deputy Nyhus into question. This was not a statement intended

to inflame the jury or insinuate that an acquittal would denigrate the police.            The




                                                  19
No. 70806-6-1/20




statements were not flagrant and ill-intentioned. Notably, the jury did not convict Nord of

the assault charge.

       Secondly, Nord challenges the prosecutor's reference to him in closing arguments

as a "madman." Nord argues that the remark was nothing but an appeal to the jury's

passion and together with the comments about Deputy Nyhus sent the prejudicial

message that Nord was a mad villain who had to be stopped by the heroic police. Nord

relies on State v. Belgarde. 110 Wn.2d 504, 506, 755 P.2d 174 (1988) for the assertion

that referring to Nord as a "madman" was improper. Belgarde was a murder case in which

the prosecutor told the jury that the defendant was "'strong in'" a group which the

prosecutor described as "'a deadly group of madmen,'" and "'butchers that kill

indiscriminately.'" id at 508.

       Like in Belgarde. Nord did not object to the prosecutor's remarks in closing

argument, request a curative instruction, or move for a mistrial. ]d at 507. As such, on

appeal, Nord would have to make a showing that the prosecutor's misconduct was so

egregious that any resulting prejudice could not have been obviated by a curative

instruction. State v. Riley. 69 Wn. App. 349, 354, 848 P.2d 1288 (1993). The jury was

instructed and reminded on multiple occasions not to make determinations based on

emotions. Nord's argument is that it is a naive assumption that prejudicial effects can be

overcome by instructions to the jury and that all practicing lawyers know this to be fiction.

This argument does not satisfy the burden placed on Nord.

       Here, the prosecutor did not say Nord was a madman. He said that Nord was

"driv[ing] like a madman." "Driving like a madman" is a commonly used hyperbole to

describe someone driving unsafely, and his unsafe driving was at issue in the alluding


                                                 20
No. 70806-6-1/21




and assault charges. This is distinguishable from Belgarde where the prosecutor claimed

the defendant belonged to a specific murderous group of madmen. Secondly, the

reference to Nord in closing argument as a "madman" was made well before the

statement about Officer Nyhus acting heroically and was made in a different context. The

prosecutor did not directly juxtapose the characterizations.      To claim that it was the

prosecutor's deliberate ill-intention to send the message to the jury Deputy Nyhus was a

hero and Nord was a madman by contrast is a mischaracterization of the closing

argument.

         We conclude that the prosecutor's remarks were not flagrant and ill-intentioned

and that there was no resulting prejudice.

   VI.      Double Jeopardy

         Nord argues that his convictions for delivery of a controlled substance and

possession of a controlled substance violate the prohibition against double jeopardy. He

claims these convictions may rest on the same evidence and the jury was not instructed

that the two crimes have to be based on separate and distinct acts. He contends that the

remedy for this error is vacation of the possession conviction.

         The constitutional guaranty against double jeopardy protects a defendant against

multiple punishments for the same offense. State v. Mutch, 171 Wn.2d 646, 661, 254

P.3d 803 (2011). To determine whether a defendant received multiple punishments for

the same offense, we may review the entire record to establish what was before the trial

court, id at 664. Based on this review, if it was not manifestly apparent to the jury that

the State was not seeking to impose multiple punishments for the same offense, and that

each count was based on a separate act, there is a double jeopardy violation, id The


                                               21
No. 70806-6-1/22




risk of double jeopardy is eliminated where separate crimes are charged, evidence is

presented on each charge, and the argument of counsel clearly identifies the acts

corresponding to each charge. State v. Fisher. 74 Wn. App. 804, 818, 874 P.2d 1381

(1994) vacated in part on other grounds bv State v. McFarland. 127 Wn.2d 322, 899 P.2d

1251 (1995). There is no requirement that a specific jury instruction be provided detailing

the act or acts which form the basis for each count when there is no evidence of jury

confusion as to the factual basis for each count. ]d at 817-18. Double jeopardy is a

question of law which is reviewed de novo. State v. Knight. 176 Wn. App. 936, 952, 309

P.3d 776 (2013), review denied. 179 Wn.2d 1021, 318 P.2d 279 (2014).

       Nord points to a question from the jury6 for the proposition that the jury struggled

in determining whether Nord possessed the meth the police found in the car.            Nord

speculates that the jury may have rested its verdict for delivery and possession on the

same delivery facts because of this confusion about the elements of constructive

possession. This misstates the standard. It does not matter if the jury ultimately rested

its verdict on the same set of facts. What matters is that it is clear to the jury that each

count was based on a separate act and that the State was not seeking to impose multiple

punishments for the same offense. Mutch. 171 Wn.2d at 664. Just because the jury may

have had doubt about whether the State met its burden of proof on the possession charge

does not mean that the State did not make the separate delivery and possession acts

clear to the jury. It also does not mean that the jury was confused as to the factual basis

for the possession charge.



       6The jury asked for further instruction on the meaning of "dominion and control" in
the possession instruction.


                                                22
No. 70806-6-1/23



      The jury was informed that a separate crime was charged in each count and that

their decision regarding one count should not control their verdict on another. For the

delivery charge, the jury was instructed that it had to find that Nord or an accomplice

delivered the meth whereas the possession charge omitted any reference to an

accomplice. The jury received additional instructions about possession and constructive

possession that would not apply to the delivery charge. At trial, two separate exhibits of

meth were admitted into evidence. Exhibit 16 was the quarter ounce of meth that was

delivered to Cave, and Exhibit 17 was the meth found on the floorboard of the Honda at

the end of the pursuit. During closing arguments the prosecutor addressed the meth

delivered to Cave and the meth in the Honda separately and explained constructive

possession in conjunction with only the possession instruction.

      Considering the record as a whole as the case law instructs, we find that it was

manifestly apparent to the jury from the instructions, evidence admitted at trial, and

closing arguments that the delivery count was based on Nord being either a principal or

accomplice to the delivery that occurred at Cave's house and that the possession charge

was based on the drugs found in the Honda at the end of the police pursuit.7 Therefore,

there was no double jeopardy violation.




        7Nord contends that possession of meth and delivery of meth are the same in law.
He does so ostensibly to argue that, if the possession and delivery charge are the same
in fact, then there is a double jeopardy violation. See State v. Kier. 164 Wn.2d 798, 804,
194 P.3d 212 (2008) (When determining whether there is a double jeopardy violation if
the legislative intent is unclear we may turn to the same evidence test, which asks if the
crimes are the same in law and in fact.). But, because we find that the possession and
delivery counts were not the same in fact in this case, we need not decide whether
delivery of meth and possession of meth are the same in law.

                                               23
No. 70806-6-1/24




      We affirm in part, reverse and vacate the eluding conviction, and remand for

resentencing.




                                                               +77*
WE CONCUR:




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