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DO NOT CITE. SEE GR 14.1(a).
Court of Appeals Division II
State of Washington
Opinion Information Sheet
| Docket Number: |
40834-1 |
| Title of Case: |
State Of Washington, Respondent V. Michael W. Jones, Appellant |
| File Date: |
01/31/2012 |
SOURCE OF APPEAL
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| Appeal from Pierce County Superior Court |
| Docket No: | 09-1-04080-1 |
| Judgment or order under review |
| Date filed: | 05/28/2010 |
| Judge signing: | Honorable Frederick Fleming |
JUDGES
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| Authored by | J. Robin Hunt |
| Concurring: | Jill M Johanson |
| David H. Armstrong |
COUNSEL OF RECORD
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Counsel for Appellant(s) |
| | Valerie Marushige |
| | Attorney at Law |
| | 23619 55th Pl S |
| | Kent, WA, 98032-3307 |
Counsel for Respondent(s) |
| | Kathleen Proctor |
| | Pierce County Prosecuting Atty Ofc |
| | 930 Tacoma Ave S Rm 946 |
| | Tacoma, WA, 98402-2171 |
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 40834-1-II
Respondent,
v.
MICHAEL WAYNE JONES, UNPUBLISHED OPINION
Appellant.
Hunt, J. -- Michael Wayne Jones appeals his sentence and jury trial convictions for two
counts of unlawful possession of a firearm and one count of unlawful possession of
methamphetamine and his special verdict enhanced sentence for the drug possession count. He
argues that (1) the trial court erred when it instructed the jury that it must unanimously agree to
answer "no" on the special verdict forms; (2) his trial counsel rendered ineffective assistance in
failing to propose "unwitting possession" instructions and in failing to propose an instruction
directing the jury to consider the evidence separately for each count; and (3) his total sentence,
including his community custody term, on his unlawful possession of a controlled substance
conviction exceeds the five-year statutory maximum for the offense. We affirm.
No. 40834-1-II
FACTS
I. Unlawful Possession of Firearm and Methamphetamine
On September 9, 2009, Pierce County Sheriff's Deputy James Oetting was on patrol when
he noticed a silver car, pulling out of a store parking lot, which fit the description of a car
connected to several recent armed robberies. As Oetting drove by, instead of leaving the parking
lot, the silver car backed up and parked. Thinking this was unusual, Oetting returned and pulled
into the parking lot. Michael Wayne Jones, who Oetting had seen driving the silver car, and
Tamera Numsen, who matched the description of one of the people involved in the recent
robberies, were standing outside the car smoking cigarettes; the car's windows were down.
Oetting told Numsen and Jones that the car matched the description of a car involved in some
armed robberies; then he walked back to his patrol car to run records checks on Jones and
Numsen.
While Oetting was at his patrol car, Jones and Numsen rolled up the silver car's windows
from outside the car. Thinking that Jones' and Numsen's behavior was strange, Oetting looked
through the car's windshield and saw two open beer containers on the floorboards. Although
Jones had previously told Oetting that he (Jones) had locked the keys in the car, Jones opened the
car door without having to unlock it and removed the beer cans. After more deputies arrived,
Oetting again looked through the car's windshield and saw a loaded black 9 mm semiautomatic
firearm "sitting on the floorboard directly in front of the driver's seat . . . right between where the
driver's legs would have been." 3 Verbatim Report of Proceedings (VRP) at 97.
Oetting arrested Jones for being a "[f]elon in possession of a firearm" and placed him in a
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No. 40834-1-II
patrol car. 3 VRP at 99. After advising Jones of his Miranda1 rights, Jones told Oetting that "he
was relatively sure [the gun in the car] was a real gun." 3 VRP at 100. Jones denied owning the
gun, but he stated that he knew it was in the car. Without removing the gun, Oetting impounded
the silver car and ran a registration check on the car. The car's previous owner was Douglas
Brudene; a report of sale had been filed about three weeks earlier, but Oetting was unable to
confirm the car's new owner.
After obtaining search warrants, the deputies searched the car twice. They found the
loaded 9 mm semiautomatic handgun that Oetting had seen on the driver's side floorboard; inside
the car's engine compartment they found a stuffed animal containing an unloaded .22 caliber
semiautomatic handgun. In the car's trunk, they found (1) a locked metal "lockbox"2 containing a
magazine that appeared to be for a 9 mm handgun, what appeared to be methamphetamine, a
digital scale, a tin containing a baggie of a "white crystal powder,"3 a "piece of glass that's
commonly used to smoke methamphetamine,"4 several small baggies marked with a dollar sign,
and several unmarked baggies; and (2) a black zippered bag that contained several bags of "white
crystal-type substance." 4 VRP at 198. The deputies also found a photograph of Jones and a key
under the floor mat near the front passenger seat, but they were unable to determine if that key fit
the lockbox because the deputies had damaged the lock when they pried the box open with a
1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
2 3 VRP at 141.
3 4 VRP at 194.
4 4 VRP at 196.
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No. 40834-1-II
screwdriver.
Lab tests later revealed that some of the white substances the deputies found in the trunk
were methamphetamine and some were methylsulfonylmethane, a substance commonly used to
cut methamphetamine. The forensic investigator determined that the two guns were fully
operational, but found no fingerprints on them.
II. Procedure
The State charged Jones with two counts of first degree unlawful possession of a firearm
and one count of unlawful possession of a controlled substance (methamphetamine) with intent to
deliver. At trial, the State's witnesses testified as described above. Pierce County Deputy Sheriff
Seth Huber, who had responded to back up Oetting, and Det. James Loeffelholz, who had later
searched the silver car, also testified that someone in the car's driver's seat could have easily
reached the 9 mm firearm that the deputies found on the driver's side floorboard. Jones stipulated
to having a prior conviction for a serious offense. He presented no witnesses.
The State proposed and the trial court gave the following jury instruction:
You will also be furnished with special verdict forms for the crime charged
in count III. If you find the defendant not guilty of this crime, do not use the
special verdict forms. If you find the defendant guilty of this crime, you will then
use the respective special verdict forms and fill in the blank with the answer "yes"
or "no" according to the decision you reach. In order to answer the special verdict
forms "yes", you must unanimously be satisfied beyond a reasonable doubt that
"yes" is the correct answer. If you unanimously have a reasonable doubt as to
this question, you must answer "no."
Clerk's Papers (CP) at 86 (Instruction 24) (emphasis added). Jones did not object. Jones did not
propose, and the trial court did not give, any unwitting possession instructions or an instruction
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No. 40834-1-II
directing the jury to consider the evidence separately for each count. Again, Jones did not object.
The jury found Jones guilty of the two first degree unlawful firearm possession charges
and of the lesser included offense of unlawful possession of a controlled substance. It also found
by special verdict that Jones was armed with the 9 mm firearm, but not the .22 caliber firearm,
when he committed the drug offense. The trial court sentenced Jones to (1) 102 months of
confinement for each firearm conviction,5 and (2) 60 months of confinement, plus an 18-month
firearm sentencing enhancement, and 12 months of community custody for the drug conviction.
The judgment and sentence contained the following clause:
PROVIDED: That under no circumstances shall the total term of confinement
plus the term of community custody actually served exceed the statutory maximum
for each offense.
CP at 119.
ANALYSIS
I. Special Verdict Instruction
Jones first argues that the trial court improperly instructed the jury that its "yes" or "no"
findings on the firearm special verdicts had to be unanimous. Although we agree, and the State
concedes, that this instruction misstated the law under Bashaw,6 Jones failed to object to this
5 Jones does not challenge these sentences.
6State v. Bashaw, 169 Wn.2d 133, 145-47, 234 P.3d 195 (2010). See also State v. Goldberg, 149
Wn.2d 888, 892-94, 72 P.3d 1083 (2003) and our recent opinion in State v Grimes, No. 40392-7-
II, 2011 WL 6018399, at *8 (Wash. Ct. App. Dec. 2, 2011) and State v Bertrand, No. 40403-6-
II, 2011 WL 6097718, at *3-4, (Wash. Ct. App. Dec. 2, 2011).
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No. 40834-1-II
instruction and, thus, failed to preserve this issue for review.
We may refuse to review a claim of error that the appellant failed to raise in the trial court
unless the appellant establishes that the error is manifest and constitutional. RAP 2.5(a)(3). We
recently held in State v. Grimes, No. 40392-7-II, 2011 WL 6018399, at *8 (Wash. Ct. App. Dec.
2, 2011) (citing State v. Nunez, 160 Wn. App. 150, 248 P.3d 103, review granted, 172 Wn.2d
1004 (2011); State v. Morgan, 163 Wn. App. 341, 261 P.3d 167 (2011)); and State v. Bertrand,
No. 40403-6-II, 2011 WL 6097718, at *3-4, (Wash. Ct. App. Dec. 2, 2011), that this type of
special verdict instructional error is not an error of constitutional magnitude. Thus, under Grimes
and Bertrand, Jones cannot show that he is entitled to review under the RAP 2.5(a)(3) exception
to the usual preservation of error requirement and we do not further consider this argument.
II. Effective Assistance of Counsel
Jones next argues we must reverse his convictions for unlawful possession of the .22
caliber firearm and unlawful possession of methamphetamine because his trial counsel rendered
ineffective assistance in failing to request unwitting possession instructions or Washington Pattern
Jury Instruction: Criminal 3.01 (WPIC).7 This argument fails.
A. Standard of Review
In reviewing an ineffective assistance of counsel claim, we start with a strong presumption
of counsel's effectiveness. State v. Breitung, No. 84580-8, 2011 WL 6824965 at *2 (Wash. Dec.
29, 2011); State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). To establish
ineffective assistance of counsel, Smith must show both deficient performance and resulting
7 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 3.01, at 80 (3d ed.
2008).
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No. 40834-1-II
prejudice. Strickland v. Washington, 466 U.S. 668, 690 -- 91, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984); McFarland, 127 Wn.2d at 334 -- 36. Deficient performance occurs when counsel's
performance falls below an objective standard of reasonableness. McFarland, 127 Wn.2d at
334 -- 35. But legitimate trial strategy does not constitute ineffective assistance of counsel.
Breitung, 2011 WL 6824965 at * 2; State v. Grier, 171 Wn.2d 17, 33, 246 P.3d 1260 (2011)
(citing State v. Kyllo, 166 Wn.2d 856, 863, 215 P.3d 177 (2009); State v. Garrett, 124 Wn.2d
504, 520, 881 P.2d 185 (1994)). Prejudice occurs when there is a reasonable probability that, but
for counsel's deficient performance, the outcome of the case would have differed. McFarland,
127 Wn.2d at 335.
B. Unwitting Possession Instruction
Unwitting possession is an affirmative defense; it is not usually applicable to an unlawful
firearm possession charge, for which the State bears the burden of proving knowing possession of
the firearm. State v. Michael, 160 Wn. App. 522, 527, 247 P.3d 842 (citing State v. Cleppe, 96
Wn.2d 373, 381, 635 P.2d 435 (1981), cert. denied, 456 U.S. 1006 (1982)), review denied, 172
Wn.2d 1015 (2011). Even if defense counsel had requested an unwitting possession instruction
on the firearm possession charges and the trial court had given this instruction, it would have
shifted the burden to Jones to establish that his possession was unwitting and, arguably, relieved
the State of its burden of proving knowing possession. See Michael, 160 Wn. App. at 527. Thus,
defense counsel's failure to request an unwitting possession instruction on the unlawful possession
of the .22 caliber firearm charge was a reasonable tactical decision and did not amount to deficient
performance.
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No. 40834-1-II
As to the unlawful methamphetamine possession charge, the trial court would likely have
given an unwitting possession instruction had defense counsel so requested. But Jones must
overcome a strong presumption of effective assistance by demonstrating that defense counsel's
decision not to request this instruction was an unreasonable tactical decision. Breitung, 2011 WL
6824965 at * 2-3; Grier, 174 Wn.2d at 33-34. Jones does not demonstrate that defense counsel's
decision was not based on legitimate tactical concerns, such as the risk that arguing unwitting
possession, which Jones had the burden of proving, could have opened the door to other
damaging evidence that could have tied Jones to the drugs in the car's trunk. Accordingly, Jones
does not overcome the presumption that defense counsel's failure to request an unwitting
possession instruction was a tactical decision; therefore, claim of ineffective assistance also fails.
C. WPIC 3.01
Jones next argues that (1) defense counsel should have proposed WPIC 3.01;8 and (2)
without this instruction, there was a risk that the jury would "improperly cumulate the evidence
and infer that since Jones knew about the handgun in the car, he must have known about the
handgun underneath the hood and the methamphetamine in the trunk." Br. of Appellant at 16.
Again, this argument fails.
The evidence for each count was clear. Additionally, each "to convict" instruction
properly informed the jury about the elements for each offense and other jury instructions clearly
8 This WPIC provides:
A separate crime is charged in each count. You must decide each count
separately. Your verdict on one count should not control your verdict on any
other count.
WPIC 3.01, at 80.
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No. 40834-1-II
instructed the jury that it had to find each element of each offense beyond a reasonable doubt.9
Given the nature of the evidence in this case and the jury instructions given, Jones does not
establish that there is a reasonable probability that the outcome of the trial would have been
different had the trial court given WPIC 3.01. Accordingly, his ineffective assistance of counsel
claim fails.
III. No Excessive Sentence
Finally, Smith argues that his sentence on the drug charge exceeded the five-year statutory
maximum for the offense because his total sentence, including the 12-month community custody
term, was 72 months. He contends that RCW 9.94A.701(9)10 requires the trial court "to remove
the term of community custody" and enter a corrected judgment and sentence. Br. of Appellant
at 19. Our Supreme Court recently rejected this argument in State v. Franklin, 172 Wn.2d 831,
837-43, 263 P.3d 585 (2011). Because Jones's judgment and sentence includes language
specifying that "the total term of confinement plus term of community custody actually served"
shall not "exceed the statutory maximum for each offense,"11 this argument fails.
We affirm.
9 See CP at 64 (Instruction 3: advising jury that the State has the burden of establishing every
"element of each crime beyond a reasonable doubt."), 67 (Instruction 6: to-convict for unlawful
possession of 9 mm firearm), 68 (Instruction 7: to-convict for unlawful possession of .22 caliber
firearm), and 81 (Instruction 20) (to-convict for unlawful possession of a controlled substance).
10 RCW 9.94A.701(9) provides:
The term of community custody specified by this section shall be reduced by the
court whenever an offender's standard range term of confinement in combination
with the term of community custody exceeds the statutory maximum for the crime
as provided in RCW 9A.20.021.
11 CP at 119.
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No. 40834-1-II
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 pursuant to RCW 2.06.040, it is so
ordered.
Hunt, J.
We concur:
Armstrong, P.J.
Johanson, J.
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