State of Washington v. Jesse Michael Cook

• Court: Court of Appeals of Washington
• Decided: May 14, 2024
• Docket: 58126-4
• Status: Unpublished

Opinion

Filed Washington State Court of Appeals Division Two

May 14, 2024

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

STATE OF WASHINGTON, No. 58126-4-II

Respondent,

v.

JESSE MICHAEL COOK, UNPUBLISHED OPINION

Appellant.

MAXA, J. – Jesse Michael Cook appeals his convictions of unlawful possession of

methamphetamine with intent to distribute and unlawful possession of fentanyl with intent to

distribute, the two firearm sentencing enhancements associated with those convictions, and his

sentence. The drugs and the firearm were found during the search of a vehicle that Cook was

driving but did not own.

We hold that (1) the evidence was sufficient to establish that Cook had constructive

possession of the drugs, (2) the evidence was sufficient to establish that Cook was armed at the

time of the offenses, (3) the trial court did not err in determining that it did not have the

discretion to impose an exceptional sentence by running the firearm sentencing enhancements

concurrently to each other and to the sentences for the substantive offenses, and (4) defense

counsel did not provide ineffective assistance of counsel by failing to request an exceptional

sentence on an impermissible basis. Accordingly, we affirm Cook’s convictions, firearm

sentencing enhancements, and sentence. No. 58126-4-II

FACTS

Background

On February 7, 2023, Napavine police officer Taylor Nichols stopped the vehicle that

Cook was driving after observing that the vehicle’s taillights were not illuminated. Cook was the

sole occupant of the vehicle.

Cook told Nichols that he had borrowed the vehicle from a friend. After Nichols learned

that Cook’s driver’s license had been suspended, Nichols cited Cook for driving on a suspended

license. Nichols advised Cook that he either could have a licensed driver retrieve the vehicle or

leave on foot. Cook took some items from the vehicle and walked away.

After Cook left, Nichols contacted a K9 unit. The drug dog unit alerted to the vehicle’s

driver’s and passenger’s doors. The K9 officer also observed drug paraphernalia in plain view in

the back seat of the vehicle. Nichols obtained a search warrant for the vehicle.

During the vehicle search, Nichols removed the ashtray from the vehicle’s center console

and found a loaded .40 caliber handgun inside the dashboard. Nichols later testified that the

ashtray was easily removed from the dashboard.

In the back of the vehicle’s trunk behind a subwoofer, Nichols found two small scales,

one of which had methamphetamine residue on it; 21.05 grams of methamphetamine; 50 to 100

fentanyl pills weighing 10.01 grams; heroin; and some packaging materials.

Later that evening, Nichols contacted Cook and informed him that he was being charged

with unlawful possession of a controlled substance with intent to deliver and unlawful possession

of a firearm. Cook did not deny any of the allegations. He only expressed concern about what

class felony each of the charges would be. Cook also thanked Nichols for “messing up his life.”

Rep. of Proc. (RP) at 159.

2 No. 58126-4-II

Cook was arrested at his home in Tacoma the next day. At Cook’s home, officers

discovered a box of .40 caliber ammunition.

While booking Cook into the Lewis County jail, Nichols told Cook that he had almost not

investigated the vehicle further because he thought that Cook had walked away with any

potential evidence. When Nichols told Cook that he had not intended to stop Cook from walking

away, Cook responded, “Wish I would have f***ing known that.” RP at 164. After Cook

repeated this statement a second time, Nichols told Cook that he was confused about what Cook

meant. Cook explained that if he had known Nichols would not have stopped him then they

would not have been at the jail. Nichols believed that Cook was suggesting that he would have

taken evidence from the car if he had known he would not have been prevented from leaving.

The State charged Cook with unlawful possession of a controlled substance

(methamphetamine) with intent to deliver and unlawful possession of a controlled substance

(fentanyl) with intent to deliver.1 The State also alleged that Cook had committed these offenses

while armed with a firearm.

Trial

At trial, the State’s witnesses testified as described above. Cook was the only defense

witness.

Cook testified that he had borrowed the vehicle from a friend so he could visit his

children in Oregon. He stated that he and his father picked up the car from his friend’s boyfriend

in the Tacoma area and that Cook drove the vehicle to Oregon. Nichols stopped him on his way

home from Oregon the next evening.

1 The State also charged Cook with possession of a stolen firearm, but that charge was dismissed.

3 No. 58126-4-II

Cook testified that he was unaware that the firearm or the drugs were in the vehicle. He

admitted to having opened the passenger side door. Cook also denied having any firearms in his

home.

The jury found Cook guilty of unlawful possession of methamphetamine with intent to

deliver and unlawful possession of fentanyl with intent to deliver. The jury also found that Cook

was armed with a firearm when he committed each of these offenses.

Sentencing

At the April 2023 sentencing hearing, the parties and the trial court assumed that each

drug offense was a level 2 drug offense and that the standard sentencing range for each offense

was 12 months plus one day to 20 months. Because the court found that the two offenses

constituted same criminal conduct, the offender score for each offense was 0 points.

The trial court stated that because of Cook’s low offender score, it was imposing low-end

sentences of 12 months plus one day plus 36-months for the firearm sentencing enhancement.

The court ran the two sentences, including the firearm enhancements, concurrently for a total

sentence of 48 months plus one day.

Resentencing

The Department of Corrections (DOC) subsequently notified the parties that the April

2023 sentence was incorrect. After the parties reviewed the sentence, they determined that the

DOC was correct, and the trial court held a resentencing hearing.

4 No. 58126-4-II

The State advised the trial court that the original sentence was incorrect because the

parties and the court had erroneously concluded that each drug offense was a level 2 offense.

But under RCW 9.94A.518,2 the firearm enhancements raised the offenses to level 3 offenses.

The State further stated that as level 3 offenses, the standard range for each offense was

51 to 68 months rather than 12 months plus one day to 20 months. The State also asserted that

although the two counts were determined to be same criminal conduct by agreement of the

parties, case law required that the two sentencing enhancements be served consecutively.

Based on this new information, the State requested a sentence of 51 months on each

count to run concurrently and two 36 month firearm sentencing enhancements to run

consecutively to each other and to the 51 month sentence. The resulting total term of

confinement would be 123 months.

Cook agreed that the proper sentencing range was 51 to 68 months, but he argued that he

should receive only one firearm enhancement because the two offenses were same course of

conduct and only one firearm was involved. The State responded that if the trial court ran the

firearm enhancements concurrently, it would require an exceptional sentence downward.

The trial court imposed a new sentence of 51 months on each count and two 36 month

firearm sentencing enhancements. The court ran the two 51 month sentences concurrently and

the two 36 month firearm enhancements consecutive to the sentences for the substantive offenses

and to each other, for a total sentence of 123 months.

Cook appeals his convictions, the firearm sentencing enhancements, and his sentence.

2 The legislature amended this statute in 2023. LAWS Of 2023, ch. 66 §2. Because this amendment did not change the relevant portion of the statute, we cite to the current version.

5 No. 58126-4-II

ANALYSIS

A. SUFFICIENCY OF THE EVIDENCE

Cook argues that the State failed to present evidence sufficient to prove that (1) he

possessed the methamphetamine and fentanyl found in the vehicle, or (2) he was armed with the

firearm during the commission of the crimes. We disagree.

1. Legal Principles

The test for determining 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. Cardenas-Flores, 189 Wn.2d 243, 265, 401 P.3d 19 (2017).

In a sufficiency of the evidence claim, the defendant admits the truth of the evidence, and we

view the evidence and all reasonable inferences drawn from that evidence in the light most

favorable to the State. Id. at 265-66. Credibility determinations are made by the trier of fact and

are not subject to review. Id. at 266. And circumstantial and direct evidence are equally reliable.

Id.

2. Possession of Controlled Substances

Cook argues that the evidence was insufficient to establish that he possessed the

methamphetamine and fentanyl. We disagree.

a. Legal Principles

To prove unlawful possession of a controlled substance with intent to deliver, the State

had to prove, among other elements, that Cook possessed the drugs in question. RCW

69.50.401(1). When possession is an element of the charged offense, possession can be

established if the State proves that the defendant had either actual possession or constructive

6 No. 58126-4-II

possession of the item. State v. Listoe, 15 Wn. App. 2d 308, 326, 475 P.3d 534 (2020). Actual

possession, which requires physical custody of the item, is not alleged here.

Constructive possession occurs when a person has dominion and control over an item.

Id. To determine whether sufficient evidence proves that a defendant had dominion and control

over an item, we examine the totality of the circumstances and a variety of factors. Id. Aspects

of dominion and control include (1) whether the defendant could immediately convert the item to

his or her actual possession, (2) the defendant’s physical proximity to the item, and (3) whether

the defendant had dominion and control over the premises where the item was located. Id. at

326-27. A vehicle is considered a “premises.” State v. George, 146 Wn. App. 906, 920, 193

P.3d 693 (2008).

But mere proximity to an item is not enough to establish constructive possession. Listoe,

15 Wn. App. 2d at 327. Similarly, the defendant’s knowledge of the item’s presence on a

premises alone is insufficient to show constructive possession. Id.

Consistent with these rules, the trial court gave the following jury instruction:

Possession means having a substance in one’s custody or control. It may be either actual or constructive. Actual possession occurs when the item is in the actual physical custody of the person charged with possession. Constructive possession occurs when there is no actual physical possession but there is dominion and control over the substance. ....

In deciding whether the defendant had dominion and control over a substance, you are to consider all the relevant circumstances in the case. Factors that you may consider, among others, include whether the defendant had the immediate ability to take actual possession of the substance, whether the defendant had the capacity to exclude others from possession of the substance, and whether the defendant had dominion and control over the premises where the substance was located. No single one of these factors necessarily controls your decision.

Clerk’s Papers (CP) at 63.

7 No. 58126-4-II

b. Analysis

Cook was the sole occupant and driver of the vehicle in which the drugs were found. The

jury was instructed that one factor that they could consider in determining dominion and control

over the drugs was “whether the defendant had dominion and control over the premises where

the substance was located.” CP at 63. This means that a jury could infer constructive possession

of items on the premises from the defendant’s dominion and control over the premises. See State

v. Shumaker, 142 Wn. App. 330, 334, 174 P.3d 1214 (2007). Therefore, this factor supported a

finding that Cook had dominion and control over the drugs.

In addition, other evidence demonstrated that Cook had control over the drugs. The drug

dog alerted to the driver’s door and passenger’s door of the vehicle, and Cook touched both of

these locations. Taking this evidence in the light most favorable to the State, this evidence

supports the conclusion that Cook had had physical control of drugs at the time he was in contact

with the vehicle. Cook also did not appear surprised when he initially was informed that he was

going to be charged, suggesting that he was aware of what was in the vehicle. And Cook later

made statements to Nichols to the effect that if he had realized Nichols would have let him leave

the scene, Nichols would not be in jail. This statement suggests that Cook knew what was in the

vehicle and could have easily accessed the drugs to remove them before he left.

Considering this evidence in the light most favorable to the State, we hold that the

evidence was sufficient to establish that although the drugs were in the trunk, Cook had

dominion and control over the drugs.

3. Armed with a Firearm

Cook argues that the State failed to provide sufficient evidence to establish that he was

armed with a firearm during the commission of the offenses. We disagree.

8 No. 58126-4-II

For purposes of firearm sentencing enhancements, to establish that the defendant was

armed “the State must prove (1) that a firearm was easily accessible and readily available for

offensive or defensive purposes during the commission of the crime and (2) that a nexus exists

among the defendant, the weapon, and the crime.” State v. Sassen Van Elsloo, 191 Wn.2d 798,

826, 425 P.3d 807 (2018). Mere “presence, close proximity, or constructive possession of a

weapon at the scene of a crime is, by itself, insufficient to show that the defendant was armed for

the purpose of a firearm enhancement.” Id. at 825.

But the defendant is not required “ ‘to be armed at the moment of arrest to be armed for

purposes of the firearms enhancement,’ and the State ‘need not establish with mathematical

precision the specific time and place that a weapon was readily available and easily accessible,

so long as it was at the time of the crime.’ ” Id. at 826-27 (quoting State v. O’Neal, 159 Wn.2d

500, 504-05, 150 P.3d 1121 (2007)). In addition, to establish that there was a nexus among the

defendant, the weapon, and the crime, we “look[ ] at the nature of the crime, the type of weapon,

and the circumstances under which it was found.” Sassen Van Elsloo, 191 Wn.2d at 827.

Cook argues that the State failed to prove a nexus between the firearm and himself or the

firearm and the crimes. He contends that the State failed to establish a nexus between himself

and the firearm because he testified that (1) he did not own the vehicle and others drove the

vehicle, (2) he did not know that the firearm was in the vehicle because it was hidden and not in

plain view, and (3) the firearm was not his and he was unaware that it was in the vehicle. He

also notes that there was no fingerprint or DNA evidence linking the firearm to him.

9 No. 58126-4-II

However, although the firearm was hidden from view, it was located in the center console

immediately next to Cook while he was transporting the drugs. Nichols testified that the firearm

was accessible by merely removing the ashtray and that the ashtray was easily removed. This

evidence creates a reasonable inference that at the time Cook was transporting the drugs, the

firearm was easily accessible and readily available to him. In addition, there was evidence that

the ammunition found in Cook’s home was the same caliber as the firearm found in the vehicle.

This evidence creates a reasonable inference that the firearm belonged to Cook and therefore that

he knew that the firearm was in the vehicle. Taken in the light most favorable to the State, the

evidence provided the required nexus between Cook, the firearm, and the offenses.

Considering this evidence in the light most favorable to the State, we hold that the

evidence was sufficient to establish that Cook was armed with a firearm at the time of his

offenses.

B. SENTENCING ISSUES

1. Consecutive Sentences for Firearm Enhancements

Cook argues that the trial court abused its discretion at sentencing because the court

failed to understand that it had the discretion to impose a 36 month exceptional sentence by

running the firearm sentencing enhancements concurrently to each other and to the sentences on

the substantive offenses instead of consecutively. We disagree.

RCW 9.94A.533(3)(e) states, “Notwithstanding any other provision of law, all firearm

enhancements under this section are mandatory, shall be served in total confinement, and shall

run consecutively to all other sentencing provisions, including other firearm or deadly weapon

enhancements.” In State v. Brown, the Supreme Court held that based on the language of RCW

9.94A.533(3)(e), sentencing courts do not have discretion to impose an exceptional sentence

10 No. 58126-4-II

with regard to deadly weapon enhancements. 139 Wn.2d 20, 29, 983 P.2d 608 (1999). In State v.

Kelly, this court held that RCW 9.94A.533(3)(e) and Brown preclude a trial court from imposing

an exceptional sentence by ordering the firearm sentencing enhancements to run concurrently

with one another. 25 Wn. App. 2d 879, 887-89, 526 P.3d 39 (2023), review granted, 2 Wn.3d

1001 (2023). Several cases in other divisions of this court also have followed the holding in

Brown. E.g., State v. Wright, 19 Wn. App. 2d 37, 52, 493 P.3d 1220 (2021), review denied, 199

Wn.2d 1001 (2022).

Cook relies on In re Personal Restraint of Mulholland, 161 Wn.2d 322, 166 P.3d 677

(2007), and State v. McFarland, 189 Wn.2d 47, 399 P.3d 1106 (2017). In Mulholland, the

Supreme Court held that trial courts have discretion to impose concurrent sentences for multiple

serious violent offenses based on its interpretation of RCW 9.94A.589(1) and RCW 9.94A.535.

161 Wn.2d at 327-31. But the court did not address RCW 9.94A.533(3)(e) or firearm

enhancements. In McFarland, the Supreme Court held that a trial court has discretion to impose

concurrent sentences for multiple firearm-related convictions. 189 Wn.2d at 53-55. But this

case involves firearm enhancements, not firearm-related convictions.

We conclude that the trial court did not have the discretion to impose concurrent

sentences for Cook’s firearm enhancements.

2. Ineffective Assistance of Counsel

Cook argues that he received ineffective assistance of counsel because defense counsel

failed to argue that under Mulholland and McFarland the trial court could impose an exceptional

sentence downward by running the firearm sentencing enhancements concurrent to each other

and to the sentences for the substantive offenses. We disagree.

11 No. 58126-4-II

To prevail on an ineffective assistance of counsel claim Cook must show both that (1)

defense counsel’s representation was deficient and (2) the deficient representation was

prejudicial. State v. Vazquez, 198 Wn.2d 239, 247-48, 494 P.3d 424 (2021). Representation is

deficient if, after considering all the circumstances, it falls below an objective standard of

reasonableness. Id.

As discussed above, the trial court did not have the discretion to impose an exceptional

sentence by running the firearm enhancements concurrently to each other or to the sentences for

the substantive offenses. Defense counsel did not provide deficient representation by failing to

argue that the court could impose an exceptional sentence on a legally impermissible basis.

Accordingly, Cook’s ineffective assistance of counsel claim fails.

CONCLUSION

We affirm Cook’s convictions, firearm sentencing enhancements, and sentence.

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.

MAXA, J.

We concur:

VELJACIC, A.C.J.

GLASGOW, J.