Filed Washington State Court of Appeals Division Two
February 11, 2020
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 51732-9-II
Respondent,
v.
KENNETH LEE KYLLO, UNPUBLISHED OPINION
Appellant.
MELNICK, J. — Kenneth Kyllo appeals after a jury convicted him of two counts of unlawful
possession of a controlled substance with intent to deliver. He argues that he received ineffective
assistance of counsel because his lawyer submitted an unwitting possession jury instruction, and
the court gave it. Kyllo also contends that the trial court erred by failing to exclude evidence seized
pursuant to a search warrant and that the trial court violated his right to counsel. Lastly, he argues
the court’s reasonable doubt jury instruction violated his right to due process. Kyllo also raises a
number of issues in his statement of additional grounds (SAG).
We affirm the convictions.
FACTS
In April 2017, Washington State Patrol Trooper Phillip Thoma applied for a warrant to
search a hotel room in Kelso. Thoma’s affidavit in support of the warrant stated that he met with
a confidential informant (CI) on April 19. While in room 203 of a Kelso hotel within 72 hours of
his statement, the CI saw approximately eight ounces of heroin on a table. The CI further related
that the heroin belonged to Kyllo. The CI identified Kyllo from a police photograph. Thoma 51732-9-II
asserted in the affidavit that the CI had conducted multiple controlled buys for law enforcement
and had previously provided information that had proven to be correct and reliable. The reviewing
judge approved the warrant which authorized law enforcement to search the hotel room and Kyllo
for controlled substances, paraphernalia, cash, and various other items such as computers, cell
phones, and media storage devices.
Police executed the search warrant that same day. Officers knocked and announced they
had a search warrant. No one answered the door, and, after hearing rustling coming from inside
the room, officers forcibly entered.
Upon entry, officers saw a man, later identified as Thomas Wiggins, sitting at a table, and
a woman, later identified as Nichole Williams, standing between the two beds in the room.
Officers also saw Kyllo holding a backpack and running toward a back window. Thoma ran after
Kyllo and repeatedly told him to stop. Kyllo threw the backpack out the window and then Thoma
detained him.
Kelso Police Sergeant Kimber Yund was outside of the hotel room and retrieved the
backpack after seeing it drop from the window. Thoma later searched the backpack and found a
digital scale with brown residue, packaging material, $4,800 in cash, approximately nine ounces
of heroin, and prescription pill bottles with Wiggins’s name on them. The heroin was packaged
in nine separate bags, each weighing approximately one ounce.
During a search of the hotel room, police found methamphetamine, heroin, drug
paraphernalia, a pay/owe sheet,1 a wallet containing Kyllo’s identification, and another pay/ owe
1 A “pay/owe sheet” is documentation used by drug dealers to document drug sales. They typically contain names and amounts owed to a drug dealer.
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sheet on the table where Wiggins had been sitting. Police also found heroin, packaging material,
and drug paraphernalia on, and in, the nightstand close to where Williams had been standing.
The State charged Kyllo with two counts of unlawful possession of a controlled substance
with intent to deliver, one for methamphetamine and the other for heroin. Before trial, Kyllo
moved in limine to exclude testimony that officers were executing a search warrant to look for
Kyllo and controlled substances, arguing that the testimony would be prejudicial. The trial court
denied the motion in limine. The matter proceeded to trial, at which witnesses testified consistent
with the facts above. Additionally, several police officers testified that they went to the hotel room
to find Kyllo and controlled substances.
Kyllo testified that Wiggins invited him to the hotel room and that he was just a guest. He
further related he had no knowledge that any drugs were in the room until after police arrived.
Kyllo said that he threw the backpack out the window after Wiggins tossed him the backpack and
told him to do it.
The trial court provided “to-convict” jury instructions for both counts of unlawful
possession of a controlled substance with intent to deliver that stated, in relevant part, that the State
had to prove beyond a reasonable doubt that “the defendant possessed the [controlled] substance
with the intent to deliver a controlled substance.” Clerk’s Papers (CP) at 36, 38. The trial court
also instructed the jury that “[a] person acts with intent or intentionally when acting with the
objective or purpose to accomplish a result that constitutes a crime.” CP at 34.
The court instructed the jury on unwitting possession, as proposed by Kyllo’s lawyer. The
State agreed that the instruction was appropriate. It read,
A person is not guilty of possession of a controlled substance if the possession is unwitting. Possession of a controlled substance is unwitting if a person did not know that the substance was in his possession or did not know the nature of the substance.
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The burden is on the defendant to prove by a preponderance of the evidence that the substance was possessed unwittingly. Preponderance of the evidence means that you must be persuaded, considering all of the evidence in the case, that it is more probably true than not true.
CP at 39.
The trial court provided the jury with a standard reasonable doubt jury instruction that
stated, in part, “If, from such consideration, you have an abiding belief in the truth of the charge,
you are satisfied beyond a reasonable doubt.” CP at 27.
During closing argument, the State said that the Drug Task Force went to the hotel to
execute a search warrant. “They went to room 203 of that hotel looking for two specific things:
drugs and the Defendant, Ken Kyllo.” Report of Proceedings (RP) (Feb. 16, 2018) at 111.
Defense counsel stated in closing argument that the State had the burden to prove Kyllo
possessed the controlled substances with the intent to deliver the substances. Defense counsel
discussed the definitional instruction for intent and reminded the jury that the State had the burden
to prove intent. Defense counsel reiterated that the State carried the burden to prove intent despite
the unwitting possession jury instruction, stating, “And if you believe my client possessed it then
there is a defense, if proven, that the defense [sic] was—the possession was unwitting. If we
haven’t met that burden, they still have to prove that the possession was done with a specific intent
to deliver.” RP (Feb. 16, 2018) at 127. Defense counsel argued that Wiggins’s and Williams’s
presence in the hotel room created a reasonable doubt that Kyllo was the person in possession of
the drugs found in the room.
In rebuttal, the State argued that the jury should consider the fact that police went to the
hotel room to look for Kyllo, rather than the other individuals who were in the room, and should
consider this fact when evaluating the argument that another individual may have possessed the
drugs found in the hotel room.
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The jury returned verdicts finding Kyllo guilty of both counts of unlawful possession of a
controlled substance with intent to deliver.
At a hearing prior to sentencing, Kyllo personally addressed the trial court and requested a
new trial. He also asked for new counsel based on alleged ineffective assistance at trial. Kyllo
asserted that his defense counsel had urged him not to accept a plea offer from the State, failed to
call a key witness to testify at trial, and failed to request a lesser-included jury instruction.
The trial court denied Kyllo’s requests for a new trial and for a new attorney. It reasoned
that these claims would be best addressed through the appellate process. Kyllo appeals.
ANALYSIS
I. INEFFECTIVE ASSISTANCE OF COUNSEL
Kyllo contends that he received ineffective assistance of counsel because his lawyer
proposed an unwitting possession jury instruction for his charges of unlawful possession of a
controlled substance with intent to deliver. We disagree.
The Sixth Amendment to the United States Constitution and article I, section 22 of the
Washington Constitution guarantee a criminal defendant’s right to effective assistance of counsel.
State v. Estes, 188 Wn.2d 450, 457, 395 P.3d 1045 (2017). To prevail on his claim of ineffective
assistance of counsel, Kyllo must show both that his counsel’s representation was deficient and
that the deficient representation resulted in prejudice. Estes, 188 Wn.2d at 457-58. Representation
is deficient if, after consideration of the circumstances, “it falls ‘below an objective standard of
reasonableness.’” Estes, 188 Wn.2d at 458 (quoting State v. McFarland, 127 Wn.2d 322, 334-35,
899 P.2d 1251 (1995)). A strong presumption exists that counsel’s representation was reasonable.
Estes, 188 Wn.2d at 458. Performance is not deficient when the lawyer’s conduct involves
legitimate trial strategy or tactics. Estes, 188 Wn.2d at 458.
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Prejudice exists if there is a reasonable probability that the outcome of the proceeding
would have differed had counsel not rendered deficient performance. Estes, 188 Wn.2d at 458.
Reasonable probability in this context means a probability sufficient to undermine confidence in
the outcome of the trial. Estes, 188 Wn.2d at 458.
The State concedes that defense counsel rendered deficient performance by proposing an
unwitting possession jury instruction. We reject the State’s concession. The lawyer made a
reasonable tactical decision in requesting the unwitting possession instruction.
Although a trial court may not have to instruct the jury on unwitting possession when a
defendant is charged with possession with intent to deliver, a defense lawyer is not deficient for
requesting the instruction if it is consistent with the asserted defense and made for legitimate
tactical reasons.2
The State has the burden of proving all the essential elements of a charged crime beyond a
reasonable doubt. State v. Rich, 184 Wn.2d 897, 903, 365 P.3d 746 (2016). Unlawful possession
of a controlled substance is a strict liability crime for which the State has no burden of proving a
mental element. State v. Bradshaw, 152 Wn.2d 528, 538, 98 P.3d 1190 (2004). Defendants
charged with unlawful possession of a controlled substance may, however, raise the affirmative
defense that they unwittingly possessed the substance. Bradshaw, 152 Wn.2d at 538. To prove
unwitting possession, defendants carry the burden of showing by a preponderance of the evidence
that they did not know that the substance was in their possession or that they did not know the
2 It is outside the scope of this opinion to decide if a court errs by not instructing the jury at the defendant’s request on unwitting possession when the defendant is charged with possession with intent to deliver. We understand there is a strong argument that it is not error; however, we are deciding the sole issue of whether a lawyer renders ineffective assistance by requesting such an instruction. Here, Kyllo has not argued that the court erred by instructing the jury on unwitting possession.
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nature of the substance. State v. Sandoval, 8 Wn. App. 2d 267, 281, 438 P.3d 165, review denied,
193 Wn.2d 1028 (2019). When used as an affirmative defense to unlawful possession of a
controlled substance, an unwitting possession jury instruction does not improperly shift the burden
of proof. Bradshaw, 152 Wn.2d at 538.
On the other hand, unlawful possession of a controlled substance with intent to deliver
includes the mens rea element of intent that the State must prove beyond a reasonable doubt. State
v. Sims, 119 Wn.2d 138, 142, 829 P.2d 1075 (1992). There is an argument that requiring the
defendant to prove that their possession was unwitting by a preponderance of the evidence in a
prosecution for unlawful possession of a controlled substance with intent to deliver improperly
shifts the State’s burden to prove the mens rea element of intent to the defendant, because
knowledge of the nature of the substance is subsumed by the intent element. See State v. Carter,
127 Wn. App. 713, 717, 112 P.3d 561 (2005).
Here, defense counsel relied on the unwitting possession instruction in his closing
argument. This argument demonstrates that defense counsel clearly had a tactical reason for asking
the court to give the instruction and supports the strong presumption that defense counsel’s
performance was reasonable.
Even if a court need not instruct on unwitting possession, the unwitting possession
instruction in this case permitted Kyllo’s lawyer to argue his theory of the defense with the support
of a jury instruction from the court, thus making his arguments stronger. Requesting the instruction
was a legitimate tactical decision.3
3 Because we conclude that Kyllo’s counsel did not render ineffective assistance, we need not address prejudice. However, we do agree with the State that Kyllo has also not shown prejudice. Kyllo argued his theory of the case and the jury found both that he possessed the controlled substances and that he intended to deliver them.
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II. VALIDITY OF SEARCH WARRANT
Next, Kyllo raises several claims regarding the validity of the search warrant including that
the search warrant affidavit contained stale information, the affidavit failed to establish probable
cause because it did not show the CI’s basis of knowledge, and it is overbroad.
Generally, a search warrant can be issued only if there is a determination of probable cause.
State v. Thein, 138 Wn.2d 133, 140, 977 P.2d 582 (1999). “Probable cause exists if the affidavit
in support of the warrant sets forth facts and circumstances sufficient to establish a reasonable
inference that the defendant is probably involved in criminal activity and that evidence of the crime
can be found at the place to be searched.” Thein, 138 Wn.2d at 140. A nexus must exist between
the criminal activity and the items to be seized, and between the item to be seized and the place
that will be searched. Thein, 138 Wn.2d at 140.
A. Raised for the First Time on Appeal
As an initial matter, Kyllo did not move at trial to suppress any evidence seized pursuant
to the search warrant. In general, we do not address claims of error raised for the first time on
appeal. RAP 2.5(a). But in RAP 2.5(a)(3) an exception exists where an appellant can show a
manifest error affecting a constitutional right. State v. Gordon, 172 Wn.2d 671, 676, 260 P.3d 884
(2011). To show manifest error, Kyllo must demonstrate actual and identifiable prejudice to his
constitutional rights at trial. State v. Kirkman, 159 Wn.2d 918, 926-27, 155 P.3d 125 (2007). To
demonstrate actual prejudice in this context, Kyllo must show that the trial court would have
excluded evidence in response to a suppression motion raising these claims and that such exclusion
would have had a practical and identifiable consequence at trial. McFarland, 127 Wn.2d at 333-
34; Gordon, 172 Wn.2d at 676. To determine whether Kyllo has made this threshold showing, we
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necessarily must evaluate the merits of his alleged errors. State v. Walsh, 143 Wn.2d 1, 8, 17 P.3d
591 (2001).
B. Staleness
Kyllo first challenges the search warrant affidavit for staleness.
A search warrant affidavit must contain facts to support an issuing court’s conclusion “that
the evidence is probably at the premises to be searched at the time the warrant is issued.” State v.
Lyons, 174 Wn.2d 354, 360, 275 P.3d 314 (2012). We evaluate it “in a commonsense manner,
rather than hypertechnically, and any doubts are resolved in favor of the warrant.” State v. Jackson,
150 Wn.2d 251, 265, 76 P.3d 217 (2003).
Whether information in a search warrant affidavit is stale depends on the
circumstances of each case. Lyons, 174 Wn.2d at 361. Some length of time naturally passes
between the observations of suspected criminal activity and the presentation to a judge of a search
warrant affidavit. Lyons, 174 Wn.2d at 360. But when the passage of time is so prolonged that it
is no longer probable that a search warrant will uncover evidence of criminal activity, the
information underlying the affidavit is deemed stale. Lyons, 174 Wn.2d at 360-61. In addition to
the passage of time, a determination of staleness depends on the nature and scope of the alleged
criminal activity, the length of the activity, and the type of property to be seized. State v. Maddox,
152 Wn.2d 499, 506, 98 P.3d 1199 (2004).
Here, the April 19 search warrant affidavit stated that Thoma met with a CI that same day.
The CI told Thoma that he/she was in a hotel room “within the last 72 hours” and saw
approximately eight ounces of heroin on a table in the room. CP at 6. The search warrant issued
that same day and required that it be executed within one day of its issuance.
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Kyllo argues that, given the transient nature of hotel guests, the CI’s statement about seeing
drugs in the hotel room within the past 72 hours was stale. We disagree.
When evaluating the search warrant affidavit in a commonsense manner and resolving all
doubts in favor of the search warrant’s validity, it is reasonable to infer that evidence of illicit drug
activity would be found at the hotel room within, at most, two days of the CI’s statement, given
the large quantity of drugs observed. Accordingly, Kyllo fails to make the threshold showing of
actual prejudice as required under RAP 2.5(a)(3).
C. CI’s Basis of Knowledge
Next, Kyllo argues that the search warrant affidavit failed to establish the CI’s basis of
knowledge for asserting the drugs belonged to Kyllo. Again, Kyllo fails to make a threshold
showing of actual prejudice.
When determining whether probable cause existed to issue a search warrant based on an
informant’s information, we apply the Aguilar-Spinelli4 two-pronged test. State v. Atchley, 142
Wn. App. 147, 161, 173 P.3d 323 (2007). This test examines the (1) “‘veracity’” or credibility of
the informant and (2) the informant’s “‘basis of knowledge.’” Atchley, 142 Wn. App. at 161
(quoting State v. Jackson, 102 Wn.2d 432, 435, 688 P.2d 136 (1984)). The basis of knowledge
prong is satisfied by information that the informant personally saw the facts asserted and is passing
on firsthand information. State v. McCord, 125 Wn. App. 888, 893, 106 P.3d 832 (2005). The
veracity and basis of knowledge prongs are independent and both must be established in the
affidavit. Jackson, 102 Wn.2d at 437.
4 Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969), abrogated by Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983), but adhered to by State v. Jackson, 102 Wn.2d 432, 688 P.2d 136 (1984).
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Kyllo challenges only the basis of knowledge prong and only insofar as the CI failed to
supply a basis of knowledge that the drugs observed in the hotel room belonged to Kyllo. The
ownership of the drugs is not at issue in the search warrant. The issue is whether the contraband
would be found in the hotel room at the time of the search. Here, the CI passed on firsthand
information about personally seeing a large quantity of heroin in a specific hotel room. This
information satisfied the basis of knowledge prong and gave rise to probable cause to search the
hotel room for evidence of illicit drug activity.
The CI’s reference to Kyllo owning the drugs does not form a basis to suppress the evidence
found in the hotel room or backpack. At trial, the State would have to prove Kyllo possessed the
drugs; even if he did not own them, it does not diminish the probable cause that the drugs would
be found in the place to be searched.5 In arriving at this conclusion, we note that Kyllo does not
argue that his arrest after police entered the hotel room was somehow invalid.
Kyllo cannot demonstrate that a motion to suppress evidence seized from the hotel room
would have been granted. Accordingly, Kyllo cannot demonstrate actual prejudice to review this
claim on its merits under RAP 2.5(a)(3).6
5 Moreover, the search warrant affidavit provides support for the conclusion that the CI had a basis of knowledge that the controlled substances belonged to Kyllo. The CI observed Kyllo with a large quantity of drugs in the hotel room, and the CI identified Kyllo by identifying a photograph of him. 6 A factual dispute existed at trial about whether the police obtained Kyllo’s wallet from his person or on a table. Even assuming the police unlawfully seized Kyllo’s wallet from his person and that it should have been suppressed, sufficient evidence existed to convict Kyllo based on the remaining evidence.
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D. Overbroad Search Warrant
Next, Kyllo argues that the search warrant was overbroad because it permitted the police
to search and seize items lacking any nexus to the suspected criminal activity. The State concedes
that the search warrant was overbroad, but contends that the valid portion of the search warrant
was severable and that no evidence seized outside the scope of the valid portion of the search
warrant was used at trial.
Here, Kyllo does not address severability of the search warrant and does not identify any
evidence admitted at trial that was obtained as a result of the overbroad portion of the search
warrant in either his opening brief or in his reply to the State’s response brief. This failure to
address severability renders Kyllo’s argument insufficient to merit judicial review. Accordingly,
we decline to address the merits of this claim.
E. Ineffective Assistance of Counsel
In the alternative, Kyllo argues that he received ineffective assistance of counsel because
of the failure to file a motion to suppress evidence. But, as discussed, the record fails to
demonstrate that a suppression motion should have been granted. Accordingly, Kyllo cannot show
the requisite prejudice to support a claim of ineffective assistance of counsel on this basis.
III. EVIDENCE NOT OVERLY PREJUDICIAL
Next, Kyllo contends that the trial court violated ER 403 and denied his due process right
to a fair trial by denying his motion to suppress evidence that the search warrant permitted police
to search for him and for controlled substances in the hotel room. We disagree.
We review a trial court’s evidentiary ruling for an abuse of discretion. State v. Scherf,
192 Wn.2d 350, 387, 429 P.3d 776 (2018).
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“A trial court abuses its discretion when its decision is manifestly unreasonable or exercised on
untenable grounds or for untenable reasons.” State v. Lord, 161 Wn.2d 276, 283-84, 165 P.3d
1251 (2007). “Allegations that a ruling violated the defendant’s right to a fair trial does not change
the standard of review.” State v. Dye, 178 Wn.2d 541, 548, 309 P.3d 1192 (2013).
ER 403 states, “Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading
the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative
evidence.” Here, evidence that the search warrant permitted police to search for Kyllo and for
controlled substances was relevant to show the reasons for the police presence at the hotel room
and a lawful basis for their entry into the hotel room.
The probative value of this evidence was not “substantially outweighed” by the danger of
unfair prejudice because the testimony regarding the subjects of the search warrants was brief,
limited to the fact that police had a warrant permitting them to search for Kyllo and drugs in the
hotel room, and did not expand on the facts supplying probable cause for issuance of the warrant.
Accordingly, the trial court acted within its discretion when denying Kyllo’s motion to suppress
evidence.7
IV. MOTION FOR APPOINTMENT OF NEW COUNSEL
Next, Kyllo contends that the trial court violated his right to counsel by denying his motion
for appointment of new counsel absent an adequate inquiry about his alleged conflict with counsel.
We disagree.
7 Kyllo asserts that the prosecutor’s closing argument emphasizing that he was the subject of the search warrant demonstrates the prejudicial nature of such evidence. But Kyllo does not claim that the prosecutor committed misconduct during closing argument, and even assuming that such argument is improper, we fail to discern how it would inform our review of the trial court’s evidentiary decision.
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The Sixth Amendment to the United States Constitution and article I, section 22 of the
Washington Constitution provide criminal defendants with the right to counsel. The constitutional
right to counsel does not, however, provide indigent defendants with the right to choose a particular
advocate. State v. Varga, 151 Wn.2d 179, 200, 86 P.3d 139 (2004).
A defendant must show good cause to justify the appointment of new defense counsel.
Varga, 151 Wn.2d at 200. Good cause includes a conflict of interest, an irreconcilable conflict, or
a complete breakdown in communication between the defendant and defense counsel. Varga, 151
Wn.2d at 200. In general, “a defendant’s loss of confidence or trust in his counsel is not sufficient
reason to appoint new counsel.” Varga, 151 Wn.2d at 200.
“We review a trial court’s refusal to appoint new counsel for an abuse of discretion.” State
v. Lindsey, 177 Wn. App. 233, 248, 311 P.3d 61 (2013). A trial court abuses its discretion when
its decision is manifestly unreasonable or based on untenable grounds. Lindsey, 177 Wn. App. at
248-49. When reviewing a trial court’s refusal to appoint new counsel, we consider the timeliness
of the motion, the adequacy of the trial court’s inquiry, and the extent of the conflict. Lindsey, 177
Wn.2d at 249.
Here, Kyllo moved for appointment of new counsel after the jury returned its verdicts
finding him guilty but before sentencing. The trial court permitted Kyllo to state his concerns.
Kyllo did not allege any conflict of interest, irreconcilable conflict, or complete breakdown in
communications preventing defense counsel from adequately representing him at his forthcoming
sentencing hearing. Instead, Kyllo requested a new trial with a newly appointed counsel, asserting
that his counsel was ineffective at trial for failing to present certain evidence. The trial court denied
Kyllo’s motion for a new trial with a newly appointed attorney, noting that his ineffective
assistance of counsel claims were a proper subject for appeal.
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We conclude that the trial court did not abuse its discretion by denying Kyllo’s motion for
new counsel. Kyllo moved for new counsel after the jury returned its verdicts, the trial court
permitted Kyllo to fully air his concerns with defense counsel, and Kyllo did not allege any conflict
preventing adequate representation at sentencing.
V. REASONABLE DOUBT JURY INSTRUCTION
Next, Kyllo contends that the trial court’s standard reasonable doubt jury instruction
violated his due process and jury trial rights. We disagree.
The reasonable doubt instruction provided here was based on 11 WASHINGTON PRACTICE:
WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 4.01, at 93 (4th ed. 2016) (WPIC). WPIC
4.01 provides in relevant part, “If, from such consideration, you have an abiding belief in the truth
of the charge, you are satisfied beyond a reasonable doubt.” CP at 27 (emphasis added). Kyllo
claims that the emphasized language impermissibly directed the jury to engage in a search for the
truth.
We previously rejected this same claim in State v. Jenson, 194 Wn. App. 900, 901-02, 378
P.3d 270 (2016), and decline Kyllo’s request to revisit the issue here.
VI. STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW
A. Confrontation Right
Kyllo first argues in his SAG that his constitutional confrontation right was violated
because he was not permitted to confront the CI who provided information in the search warrant
affidavit. We disagree.
The Sixth Amendment of the United States Constitution “bars ‘admission of testimonial
statements of a witness who did not appear at trial.’” State v. Pugh, 167 Wn.2d 825, 831, 225 P.3d
892 (2009) (internal quotation marks omitted) (quoting Davis v. Washington, 547 U.S. 813, 821,
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126 S. Ct. 2266, 165 L. ED. 2d 224 (2006)). Here, the State did not present any statements made
by the CI at trial and, thus, Kyllo cannot show a violation of his confrontation right. Moreover,
Kyllo has waived his right to raise a confrontation clause violation on appeal because he did not
object on that ground at trial. See State v. Burns, 193 Wn.2d 190, 208, 438 P.3d 1183 (2019).
B. Sufficiency of the Evidence
Kyllo appears to argue that the State failed to present sufficient evidence to support his
convictions. Again, we disagree.
Evidence is sufficient to support a guilty verdict if any rational trier of fact, viewing the
evidence in the light most favorable to the State, could find the elements of the charged crime
beyond a reasonable doubt. State v. Longshore, 141 Wn.2d 414, 420-21, 5 P.3d 1256 (2000). “In
claiming insufficient evidence, the defendant necessarily admits the truth of the State’s evidence
and all reasonable inferences that can be drawn from it.” State v. Homan, 181 Wn.2d 102, 106,
330 P.3d 182 (2014). “We defer to the jury ‘on issues of conflicting testimony, credibility of
witnesses, and the persuasiveness of the evidence’”. State v. Andy, 182 Wn.2d 294, 303, 340 P.3d
840 (2014) (quoting State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004).
To convict Kyllo of unlawful possession of a controlled substance with intent to deliver,
the State had to prove beyond a reasonable doubt that he (1) possessed (2) a controlled substance
(3) with intent to deliver the controlled substance. Former RCW 69.50.401 (2015).
Possession of a controlled substance may be actual or constructive. State v. Ibarra-
Cisneros, 172 Wn.2d 880, 897, 263 P.3d 591 (2011). Actual possession occurs when a defendant
has physical custody of the item, and constructive possession occurs if the defendant has dominion
and control over the item. State v. Jones, 146 Wn.2d 328, 333, 45 P.3d 1062 (2002). Dominion
and control can be over “either the drugs or the premises on which the drugs were found.” State
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v. Callahan, 77 Wn.2d 27, 31, 459 P.2d 400 (1969). “Dominion and control need not be
exclusive.” State v. Summers, 107 Wn. App. 373, 384, 28 P.3d 780 (2001).
Mere possession of a controlled substance is insufficient to prove an intent to deliver. State
v. Reichert, 158 Wn. App. 374, 391, 242 P.3d 44 (2010). Rather, the State must prove possession
and at least one additional factor that indicates the defendant’s intent to deliver, which may include
substantial amounts of cash, scales, cell phones, address books, baggies, or materials used to
manufacture narcotics. State v. Goodman, 150 Wn.2d 774, 783, 83 P.3d 410 (2004).
Viewing the evidence in the light most favorable to the State, we conclude that sufficient
evidence supported Kyllo’s unlawful possession of a controlled substance with intent to deliver
convictions. Here, the State presented evidence that Kyllo had actual possession of a backpack
containing nine ounces of heroin. The backpack also contained evidence supporting a finding that
Kyllo possessed the heroin with the intent to deliver, including $4,800 in cash and a digital scale
with brown residue on it. Additionally, the fact that the heroin was packaged in nine separate bags,
each containing approximately one ounce of heroin further supported the jury’s finding that Kyllo
intended to deliver the controlled substance.
The State also presented evidence sufficient for a jury to find that Kyllo constructively
possessed the methamphetamine found in the hotel room. Kyllo was in the hotel room when police
entered, placing him in close proximity to the methamphetamine. Although Wiggins and Williams
were also present in the hotel room in close proximity to the methamphetamine, dominion and
control need not be exclusive. And, in addition to the evidence showing an intent to deliver found
in the backpack, other evidence found in the hotel room supported a finding of intent to deliver,
including pay/owe sheets and packaging material. Accordingly, sufficient evidence supported
Kyllo’s convictions for unlawful possession of a controlled substance with intent to deliver.
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C. Validity of Search Warrant
Kyllo raises a contention with the validity of the search warrant used to enter his hotel
room that is difficult to discern. We do not address his contention because it is not sufficiently
developed to merit judicial consideration. See RAP 10.10(c) (“[T]he appellate court will not
consider a defendant’s statement of additional grounds for review if it does not inform the court
of the nature and occurrence of alleged errors.”). Moreover, Kyllo did not challenge the validity
of the search warrant at trial and does not argue that RAP 2.5(a) applies to permit us to review his
challenge for the first time on appeal.
D. Right to Counsel and Miranda Violation
Kyllo argues that the State violated his right to counsel by failing to honor his invocation
of Miranda8 rights. Kyllo admits, however, that this alleged violation is not present in the record
before us. The proper avenue for bringing claims based on evidence outside the record is through
a personal restraint petition, not a direct appeal. McFarland, 127 Wn.2d 335. We therefore decline
to address this argument.
Kyllo argues that his defense counsel was ineffective for failing to investigate the Miranda
violation alleged above. But, again, we cannot address this argument in this direct appeal because
the alleged violation is not present in this record.
F. Cumulative Error
Kyllo argues that the cumulative effect of trial errors denied his right to a fair trial. A
“defendant may be entitled to a new trial when cumulative errors produce a trial that is
fundamentally unfair.” State v. Emery, 174 Wn.2d 741, 766, 278 P.3d 653 (2012). Cumulative
8 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. ED. 2d 694 (1996).
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error applies to instances where there are “several trial errors” that alone do not merit reversal, but
when combined, deny the defendant a fair trial. State v. Greiff, 141 Wn.2d 910, 929, 10 P.3d 390
(2000). Because Kyllo has not established that multiple errors occurred at trial, reversal under the
cumulative error doctrine is not warranted.
We affirm.
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.
Melnick, J.
I concur:
Maxa, C.J.
19 51732-9-II
GLASGOW, J. (Dissenting) —The majority improperly rejects the State’s concession that
Kenneth Kyllo’s counsel performed deficiently when he requested an unwitting possession jury
instruction, even though Kyllo had been charged with possession with intent to deliver and not
mere possession of a controlled substance. Because an unwitting possession instruction is
improper where a person has been charged with possession of a controlled substance with intent
to deliver, I respectfully dissent. Instructing the jury that Kyllo had to prove unwitting possession
by a preponderance of the evidence improperly undermined the State’s burden to prove intent
beyond a reasonable doubt. When Kyllo’s counsel undertook a burden of proof for his client while
undermining the State’s burden, that constituted deficient performance. Applying the resulting
presumption of prejudice established in case law, I would also find the contradiction regarding the
burden of proof was error sufficient to undermine confidence in the outcome of the trial. I would
therefore find prejudice and reverse.
Unwitting possession is an affirmative defense to unlawful possession of a controlled
substance. State v. Bradshaw, 152 Wn.2d 528, 538, 98 P.3d 1190 (2004). In Bradshaw, the
Supreme Court clarified that unlawful possession of a controlled substance does not have a
knowledge element; it is a strict liability offense. Id. Thus, unwitting possession is a judicially-
created affirmative defense that was designed to ameliorate the harshness of the strict liability
crime. Id.; State v. Balzer, 91 Wn. App. 44, 67, 954 P.2d 931 (1998). “To establish the defense,
the defendant must prove, by a preponderance of the evidence, that his or her possession of the
unlawful substance was unwitting.” Balzer, 91 Wn. App. at 67.
20 51732-9-II
When used as an affirmative defense to an unlawful possession of a controlled substance
charge, an unwitting possession jury instruction does not improperly shift the burden of proof.
Bradshaw, 152 Wn.2d at 538. In contrast, the elements of the crime of unlawful possession with
intent to deliver include a requisite mental state—intent. State v. Sims, 119 Wn.2d 138, 142, 829
P.2d 1075 (1992). We presume that one who acts with the requisite mental state of intent also acts
with knowledge because one must know something is a controlled substance in order to “deliver”
it under the statute. State v. Sanders, 66 Wn. App. 380, 390, 832 P.2d 1326 (1992). As a result,
knowledge is not a separate element of possession with intent to deliver, but rather is subsumed
within intent. Sims, 119 Wn.2d at 142. Unwitting possession is therefore not an affirmative
defense to the crime of possession with intent to deliver because “[i]t is impossible for a person to
intend to . . . deliver a controlled substance without knowing what he or she is doing.” Id.
The State has the burden to prove each element of a charged crime beyond a reasonable
doubt. In re Matter of Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). Where
the State has charged possession with intent to deliver, the burden to prove possession of a
controlled substance with the requisite intent falls squarely on the State, while the unwitting
possession instruction places a burden on the defendant to prove their state of mind. Therefore,
requiring the defendant to prove unwitting possession by a preponderance of the evidence where
the defendant has been charged solely with unlawful possession with intent to deliver improperly
contradicts the State’s burden to prove the mental state element of intent, in which “knowledge”
is subsumed.
The unwitting possession instruction given in this case misled the jury to believe Kyllo had
the burden to prove his mental state, which conflicted with the State’s burden to prove the requisite
21 51732-9-II
mental state beyond a reasonable doubt. This inconsistent instruction was a clear misstatement of
the law and it was deficient performance for defense counsel to request it.
The majority incorrectly concludes that “defense counsel clearly had a tactical reason” to
request an unwitting possession instruction—to support Kyllo’s argument that he did not know
there were controlled substances in the backpack he threw out the window. Majority at 8. But the
tactical reason must be a legitimate one. State v. Estes, 188 Wn.2d 450, 458, 395 P.3d 1045 (2017).
Here it was not.
The majority reasons that the unwitting possession instruction “permitted Kyllo’s lawyer
to argue his theory of the defense with the support of a jury instruction from the court.” Majority
at 8. But the jury instruction was not necessary to argue Kyllo’s theory of the case. Where a
defendant has been charged with possession of a controlled substance with intent to deliver, they
can argue that the State has failed to prove possession with the requisite intent because the
defendant did not know that the controlled substance was in their possession. No unwitting
possession instruction is necessary to argue to the jury that a defendant’s lack of knowledge defeats
the element of intent, and presenting the argument in this way firmly preserves the burden on the
State to prove each element of the crime, including the required intent to deliver, beyond a
reasonable doubt.
When the majority concludes that “[r]equesting the instruction was a legitimate tactical
decision,” it misses a fundamental point. Id. The unwitting possession instruction
unconstitutionally shifted to Kyllo the burden to prove his state of mind and contradicted the
State’s burden to prove the element of intent. Defense counsel performed deficiently when he
undertook this burden.
22 51732-9-II
The majority attempts to avoid this problem by declining to decide whether giving an
unwitting possession instruction is proper where the defendant has been charged with possession
of a controlled substance with intent to deliver. Majority at 8 n.3. But this ignores the obvious
fact that an instruction that shifts the burden to the defendant to prove the absence of an element
of a crime is a clear violation of the defendant’s constitutional rights. See Winship, 397 U.S. at
364. When defense counsel invited the burden shifting, he invited the violation of his client’s
constitutional right, a clear example of deficient performance. See State v. Carter, 127 Wn. App.
713, 717-18, 112 P.3d 561 (2005).
Where counsel’s deficiency leads to an improper jury instruction on unwitting possession
that creates an inconsistency that misstates the law, prejudice is presumed, even where the jury
was also properly instructed that the State carries the burden of proof. Id. at 718. “If the
inconsistency results from a clear misstatement of the law, the misstatement is presumed to have
misled the jury in a manner prejudicial to the defendant.” Id. Here, the unwitting possession
instruction presented an inconsistency to the jury because it placed the burden on Kyllo to prove
his state of mind by a preponderance of the evidence. The unwitting possession instruction misled
the jury as to who had the burden to prove Kyllo’s state of mind. Although there was ample
evidence that drugs and paraphernalia were in the hotel room and in the bag that Kyllo threw out
the window, I would not conclude that there was enough evidence that the controlled substances
belonged to Kyllo, rather than the others present in the hotel room, to overcome the presumption
of prejudice established in Carter.
I would accept the State’s concession and conclude that it was ineffective assistance of
counsel for defense counsel to seek an unwitting possession instruction where Kyllo was charged
solely with possession of a controlled substance with intent to deliver. The direction to the jury
23 51732-9-II
that Kyllo had a burden to prove his state of mind was fundamentally inconsistent with the State’s
burden to prove intent to deliver beyond a reasonable doubt. The State has not overcome the
resulting presumption of prejudice. I would therefore reverse. Kyllo is entitled to a new trial
where the State’s burden of proof is clearly presented to the jury without contradiction.
____________________________________ Glasgow, J.