IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON •••» (/) o -H '•.-'
STATE OF WASHINGTON, No. 70364-1-1 Respondent, DIVISION ONE v.
ro
JUSTIN J. FORD, UNPUBLISHED OPINION
Appellant. FILED: July 29, 2013 .)
Becker, J. — A jury convicted Justin Ford of possession of heroin after
police found drugs and drug paraphernalia in his backpack. He argues the trial
court committed reversible error by using a modified version of the standard jury
instruction on reasonable doubt. He also contends there was insufficient
evidence to support the conviction and the prosecutor's improper comments
during closing argument deprived him of a fair trial. We affirm.
Grays Harbor sheriffs deputies encountered Ford when they arrived to
serve an arrest warrant on Hali Ochsner in Ochsner's condominium in Westport.
When the deputies arrived and came into the living room, Ford was there along
with Ochsner and Jordan Lilja. Drugs and numerous items of drug paraphernalia
were visible on the coffee table. The officers obtained a search warrant and
found heroin in various locations. Ford's black backpack, located on one of the 70364-1-1/2
couches in the living room, was searched and found to contain heroin and digital
scales. This discovery led to Ford's arrest.
Ford did not have controlled substances on his person or in his car. The
State's evidence to support the charge of possession of heroin relied on the
heroin in Ford's backpack. At trial, Ochsner testified that when the police arrived,
she started putting drugs and other items from the coffee table into Ford's
backpack. She said that none of these items were Ford's. She disputed a
deputy's testimony that she told him, before the search took place, that Ford
brought the drugs to the apartment. The same deputy testified that when he and
his partner entered the living room, Oschner was closer to the backpack than
Ford was. Lilja testified that he saw Ochsner put items from the table into Ford's
backpack before the police came in. Ford argued in closing that he "never had
possession of the controlled substance because it was never in his custody or
control. Somebody just throws something in your backpack, you're not
possessing it."
The jury found Ford guilty of possession of heroin, and the trial court
sentenced him to 24 months.
Ford first assigns error to the court's instruction on reasonable doubt. He
contends a manifest constitutional error occurred because a key sentence in the
pattern instruction was omitted.
Our Supreme Court, exercising its inherent supervisory power, has
directed trial courts to use only the current pattern instruction "to inform the jury
of the government's burden to prove every element of the charged crime beyond 70364-1-1/3
a reasonable doubt." State v. Bennett. 161 Wn.3d 303, 318, 165 P.3d 1241
(2007). The pattern instruction describes the State's burden as follows,
enclosing in brackets those portions that are used in particular circumstances:
[T]he [Each] defendant has entered a plea of not guilty. That plea puts in issue every element of [the] [each] crime charged. The [State] [City] [County] is the plaintiff and has the burden of proving each element of [the] [each] crime beyond a reasonable doubt. The defendant has no burden of proving that a reasonable doubt exists [as to these elements]. A defendant is presumed innocent. This presumption continues throughout the entire trial unless during your deliberations you find it has been overcome by the evidence beyond a reasonable doubt. A reasonable doubt is one for which a reason exists and may arise from the evidence or lack of evidence. It is such a doubt as would exist in the mind of a reasonable person after fully, fairly, and carefully considering all of the evidence or lack of evidence. [If, from such consideration, you have an abiding belief in the truth of the charge, you are satisfied beyond a reasonable doubt.]
11 Washington Practice: Washington Pattern Jury Instructions: Criminal
4.01, at 85 (3d. ed. 2008) (WPIC).
The instruction Ford proposed conformed to WPIC 4.01. The instruction
the State proposed conformed to the pattern instruction except that it lacked the
sentence, "The defendant has no burden of proving that a reasonable doubt
exists [as to these elements]." The trial court gave the instruction as proposed by
the State. The record does not reflect that anyone commented on the
discrepancy, or even noticed it, during the proceedings in the trial court.
In Bennett, the Supreme Court stated, "Even if many variations of the
definition of reasonable doubt meet minimal due process requirements, the
presumption of innocence is simply too fundamental, too central to the core of 70364-1-1/4
the foundation of our justice system not to require adherence to a clear, simple,
accepted, and uniform instruction.... We have approved WPIC 4.01 and
conclude that sound judicial practice requires that this instruction be given until a
better instruction is approved." Bennett, 161 Wn.2d at 317-18. Under Bennett,
as the State recognizes, the instruction given was erroneous.
This court reversed a conviction where the trial judge gave a completely
nonstandard instruction. State v. Castillo, 150 Wn. App. 466, 470, 475, 208 P.3d
1201 (2009). In Castillo, the defendant proposed WPIC 4.01, but the court
replied that the WPIC was gobbledygook and refused to give it. Castillo, 150
Wn. App. at 470.
However, erroneous modification to WPIC 4.01 does not automatically
constitute reversible error. State v. Lundv. 162 Wn. App. 865, 871-73, 256 P.3d
466(2011).
Unlike in Castillo, where the defendant objected to the nonstandard
instruction, here Ford did not object. Because a violation of the Supreme Court's
mandate in Bennett is not in itself an error of constitutional magnitude, Ford is not
entitled to review as a matter of right. See State v. Jimenez-Macias, 171 Wn.
App. 323, 331-32, 286 P.3d 1022 (2012) (noting that in Lundv the court should
have found the instructional error was not of constitutional magnitude instead of
reviewing it under the constitutional harmless error standard).
Even if the omission were subject to a constitutional harmless error
analysis, the error would not require reversal as long as it did not relieve the
State of its burden to prove each element of the crime charged. State v. Brown. 70364-1-1/5
147 Wn.2d 330, 332, 58 P.3d 889 (2002). Ford argues the harmful potential
prejudice of the instruction given here was that the jury might believe it was his
burden to establish doubt and that the potential for prejudice was realized when
the State made a burden shifting remark during argument.
The defense closing argument emphasized that the police did not know
what the coffee table looked like before they arrived and that the testimony of
Ochsner and Lilja should be believed as to what happened before the police
arrived. Defense counsel also suggested that Ochsner might have flushed drugs
down the toilet before the police came into the living room. The prosecutor
responded in rebuttal:
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON •••» (/) o -H '•.-'
STATE OF WASHINGTON, No. 70364-1-1 Respondent, DIVISION ONE v.
ro
JUSTIN J. FORD, UNPUBLISHED OPINION
Appellant. FILED: July 29, 2013 .)
Becker, J. — A jury convicted Justin Ford of possession of heroin after
police found drugs and drug paraphernalia in his backpack. He argues the trial
court committed reversible error by using a modified version of the standard jury
instruction on reasonable doubt. He also contends there was insufficient
evidence to support the conviction and the prosecutor's improper comments
during closing argument deprived him of a fair trial. We affirm.
Grays Harbor sheriffs deputies encountered Ford when they arrived to
serve an arrest warrant on Hali Ochsner in Ochsner's condominium in Westport.
When the deputies arrived and came into the living room, Ford was there along
with Ochsner and Jordan Lilja. Drugs and numerous items of drug paraphernalia
were visible on the coffee table. The officers obtained a search warrant and
found heroin in various locations. Ford's black backpack, located on one of the 70364-1-1/2
couches in the living room, was searched and found to contain heroin and digital
scales. This discovery led to Ford's arrest.
Ford did not have controlled substances on his person or in his car. The
State's evidence to support the charge of possession of heroin relied on the
heroin in Ford's backpack. At trial, Ochsner testified that when the police arrived,
she started putting drugs and other items from the coffee table into Ford's
backpack. She said that none of these items were Ford's. She disputed a
deputy's testimony that she told him, before the search took place, that Ford
brought the drugs to the apartment. The same deputy testified that when he and
his partner entered the living room, Oschner was closer to the backpack than
Ford was. Lilja testified that he saw Ochsner put items from the table into Ford's
backpack before the police came in. Ford argued in closing that he "never had
possession of the controlled substance because it was never in his custody or
control. Somebody just throws something in your backpack, you're not
possessing it."
The jury found Ford guilty of possession of heroin, and the trial court
sentenced him to 24 months.
Ford first assigns error to the court's instruction on reasonable doubt. He
contends a manifest constitutional error occurred because a key sentence in the
pattern instruction was omitted.
Our Supreme Court, exercising its inherent supervisory power, has
directed trial courts to use only the current pattern instruction "to inform the jury
of the government's burden to prove every element of the charged crime beyond 70364-1-1/3
a reasonable doubt." State v. Bennett. 161 Wn.3d 303, 318, 165 P.3d 1241
(2007). The pattern instruction describes the State's burden as follows,
enclosing in brackets those portions that are used in particular circumstances:
[T]he [Each] defendant has entered a plea of not guilty. That plea puts in issue every element of [the] [each] crime charged. The [State] [City] [County] is the plaintiff and has the burden of proving each element of [the] [each] crime beyond a reasonable doubt. The defendant has no burden of proving that a reasonable doubt exists [as to these elements]. A defendant is presumed innocent. This presumption continues throughout the entire trial unless during your deliberations you find it has been overcome by the evidence beyond a reasonable doubt. A reasonable doubt is one for which a reason exists and may arise from the evidence or lack of evidence. It is such a doubt as would exist in the mind of a reasonable person after fully, fairly, and carefully considering all of the evidence or lack of evidence. [If, from such consideration, you have an abiding belief in the truth of the charge, you are satisfied beyond a reasonable doubt.]
11 Washington Practice: Washington Pattern Jury Instructions: Criminal
4.01, at 85 (3d. ed. 2008) (WPIC).
The instruction Ford proposed conformed to WPIC 4.01. The instruction
the State proposed conformed to the pattern instruction except that it lacked the
sentence, "The defendant has no burden of proving that a reasonable doubt
exists [as to these elements]." The trial court gave the instruction as proposed by
the State. The record does not reflect that anyone commented on the
discrepancy, or even noticed it, during the proceedings in the trial court.
In Bennett, the Supreme Court stated, "Even if many variations of the
definition of reasonable doubt meet minimal due process requirements, the
presumption of innocence is simply too fundamental, too central to the core of 70364-1-1/4
the foundation of our justice system not to require adherence to a clear, simple,
accepted, and uniform instruction.... We have approved WPIC 4.01 and
conclude that sound judicial practice requires that this instruction be given until a
better instruction is approved." Bennett, 161 Wn.2d at 317-18. Under Bennett,
as the State recognizes, the instruction given was erroneous.
This court reversed a conviction where the trial judge gave a completely
nonstandard instruction. State v. Castillo, 150 Wn. App. 466, 470, 475, 208 P.3d
1201 (2009). In Castillo, the defendant proposed WPIC 4.01, but the court
replied that the WPIC was gobbledygook and refused to give it. Castillo, 150
Wn. App. at 470.
However, erroneous modification to WPIC 4.01 does not automatically
constitute reversible error. State v. Lundv. 162 Wn. App. 865, 871-73, 256 P.3d
466(2011).
Unlike in Castillo, where the defendant objected to the nonstandard
instruction, here Ford did not object. Because a violation of the Supreme Court's
mandate in Bennett is not in itself an error of constitutional magnitude, Ford is not
entitled to review as a matter of right. See State v. Jimenez-Macias, 171 Wn.
App. 323, 331-32, 286 P.3d 1022 (2012) (noting that in Lundv the court should
have found the instructional error was not of constitutional magnitude instead of
reviewing it under the constitutional harmless error standard).
Even if the omission were subject to a constitutional harmless error
analysis, the error would not require reversal as long as it did not relieve the
State of its burden to prove each element of the crime charged. State v. Brown. 70364-1-1/5
147 Wn.2d 330, 332, 58 P.3d 889 (2002). Ford argues the harmful potential
prejudice of the instruction given here was that the jury might believe it was his
burden to establish doubt and that the potential for prejudice was realized when
the State made a burden shifting remark during argument.
The defense closing argument emphasized that the police did not know
what the coffee table looked like before they arrived and that the testimony of
Ochsner and Lilja should be believed as to what happened before the police
arrived. Defense counsel also suggested that Ochsner might have flushed drugs
down the toilet before the police came into the living room. The prosecutor
responded in rebuttal:
Well, she never said that she flushed anything down the toilet and he certainly would have asked her about it. There were no drugs in the vehicle, so what. I - I - it's a - that's neither here nor there. And do you really think that Deputy Wilson lied to get a search warrant to search the apartment and the vehicle. Do you really think he lied to do that?
It is difficult to see how this argument about the possible flushing of drugs down
the toilet has any relevance to the heroin that was found in Ford's backpack. It is
even more difficult to imagine the jury taking it as a direction that Ford had the
burden of establishing reasonable doubt.
The instruction in this case did not misstate the State's burden of proof.
The instruction correctly communicated the fundamental concept that the
defendant was presumed innocent until the State proved each element of the
crime beyond a reasonable doubt. There is no reason to believe the jury was
influenced by the omission of the sentence stating the defense has no burden. 70364-1-1/6
Next, Ford argues there was insufficient evidence to prove he possessed
the heroin in his backpack. The test for determining the 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. Salinas. 119 Wn.2d 192, 201, 829 P.2d 1068 (1992) (citations omitted).
In claiming insufficient evidence, the defendant admits the truth of the State's
evidence and all reasonable inferences that can be drawn from it. Salinas, 119
Wn.2dat201.
Ford argues the State failed to prove he constructively possessed the
heroin in his backpack. Constructive possession occurs when there is no actual
physical possession but there is dominion and control over the substance. Jury
Instruction 8; State v. Callahan. 77 Wn.2d 27, 30-31, 459 P.2d 400 (1969).
Courts will look at the totality of the situation to determine sufficiency of the
evidence of dominion and control. State v. Cote, 123 Wn. App. 546, 549, 96
P.3d 410 (2004).
A defendant's mere proximity to drugs is insufficient to prove constructive
possession. State v. George, 146 Wn. App. 906, 920, 193 P.3d 693 (2008).
Unlike in George, the evidence here does not boil down to mere proximity.
Ochsner testified she put the heroin and other items from the coffee table into the
backpack, but Deputy Sheriff Robert Wilson said Ochsner told him at the scene
that Ford had brought the drugs into her home. The jury was free to discount
Ochsner's credibility and the corroborating testimony of Lilja, and to rely instead
on Wilson's testimony. There is no question that the backpack belonged to Ford. 70364-1-1/7
He had the right to exclude others from the backpack. Thus, the evidence was
sufficient.
Finally, Ford argues he was deprived of a fair trial by prosecutorial
misconduct during closing arguments. To establish misconduct, a defendant
must show that the remark was "both improper and prejudicial in the context of
the entire record and the circumstances at trial." State v. Magers, 164 Wn.2d
174, 191, 189 P.3d 126 (2008), quoting State v. Hughes, 118 Wn. App. 713, 727,
77 P.3d 681 (2003). The defendant establishes prejudice by showing there is "a
substantial likelihood" that the remark affected the jury's verdict. Magers. 164
Wn.2d at 191. If the defendant objected to the allegedly improper comment, we
evaluate the trial court's ruling for abuse of discretion. State v. Gregory. 158
Wn.2d 759, 810, 147 P.3d 1201 (2006).
The remark at issue came in the course of the prosecutor's discussion of
the term "abiding belief in the reasonable doubt instruction. The prosecutor
characterized it as "knowing that you have done the right thing":
An abiding belief in the truth of the charge. Ifyou can walk out—if you can find the defendant guilty and walk out of here knowing that you have done the right thing, that you don't have any question in your mind that you've done the right thing, you've been convinced beyond a reasonable doubt.
Ford objected. The trial court referred the jury to the instructions and told the
jury, "The instructions speak for themselves. Remarks and statements of
counsel are not evidence." The State made no further reference to reasonable
doubt. At sentencing, Ford moved for a new trial based on the remark about "the
right thing." The trial court denied the motion. 70364-1-1/8
The remark was improper. Attempts to describe the meaning of
reasonable doubt in terms other than the approved jury instruction are chancy at
best. Nevertheless, we perceive no likelihood that the remark affected the jury's
verdict. It bore no relationship to the omission, in instruction 7, of the sentence
stating that the defendant has no burden of proving that a reasonable doubt
exists. The prosecutor consistently affirmed that the State had the burden of
proof, as did defense counsel. Immediately after the objectionable comment, the
trial court correctly referred the jury to the instructions, saying "The jury will follow
the instructions." We presume the jury followed the instructions given. State v.
Brown. 132 Wn.2d 529, 618, 940 P.2d 546 (1997). cert, denied. 523 U.S. 1007
(1998).
Affirmed.
WE CONCUR:
^bx.j .