IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, j No. 68518-0-1 ip &..
Respondent, ) DIVISION ONE ^ CD,"'--"-. v. ] CP %S" MARIO MORENO-CAZAREZ, ; UNPUBLISHED
Appellant. ) FILED: June 10. 2013
Cox, J. — Mario Moreno-Cazarez appeals his conviction of possession of
methamphetamine, claiming he received ineffective assistance of counsel when
his attorney failed to propose an unwitting possession instruction. Because we
conclude that defense counsel made a legitimate tactical decision, we disagree
and affirm.
Kent Police arrested Mark Vander for possession of methamphetamine
with the intent to deliver. In the presence of the police, Vander exchanged calls
with a certain cellular telephone number. Based on the calls, police approached
a white Chrysler Sebring in the parking lot of a Winco Food Store and arrested the driver, who was Moreno-Cazarez, and the backseat passenger, Charles
Louder. In a search incident to arrest, an officer found a pipe of a type often
used with crack or methamphetamine in Louder's pocket.
In a later search of the impounded Sebring, the police found a plastic bag
containing suspected methamphetamine on the floorboard behind the driver's No. 68518-0-1/2
seat. The police also found four cell phones in the car, one of which had the
number associated with Vander's calls.
The State initially charged Moreno-Cazarez with possession of
methamphetamine with intent to deliver. At a pretrial hearing, the trial court
addressed the State's request for disclosure of the defense. The court said to
defense counsel, "I saw in the omnibus order that there might be an unwitting
possession defense." Defense counsel responded, "That would only apply if this
case had been amended to a simple possession." After the court ruled on
certain evidentiary matters, the State amended the charge to possession of
methamphetamine.
At trial, Detective Eric Steffes testified that he interviewed Moreno-
Cazarez at the jail after his arrest. According to Detective Steffes, Moreno-
Cazarez said he was at Winco to meet a guy named Bones and give him a ride
to meet a woman named Theresa. He said he did not know his passenger very
well and only knew him by his nickname, "Chalky." Moreno-Cazarez admitted
that he had purchased the Sebring a few weeks before. When Detective Steffes
asked whether there were any drugs in the car, Moreno-Cazarez told him "there
shouldn't be." Moreno-Cazarez also said there was a plastic bag in the trunk that
belonged to a woman named Jamie. When asked if the bag contained drugs,
Moreno-Cazarez responded, "No drugs that I know."
After the State's last witness had testified, the trial court and the parties
reviewed the proposed jury instructions outside the presence of the jury. The
following exchange occurred: No. 68518-0-1/3
THE COURT: All right, 11 is the unwitting possession WPIC, this is WPIC 52.01, it was partly proposed by the defense but the defense did not include the second paragraph which is the burden of proof being on the defendant.
[Defense Counsel]: Your Honor, I would prefer to not have the instruction at all if it's going to read the ... way the WPICs had it. I believe the instruction, I believe it shifts the burden to the defense to actually disprove dominion and control and I don't like that instruction, I'd like to withdraw the proposal.
THE COURT: I think that this is a correct statement of the law and the other cases that were cited in the WPIC, they describe it as an affirmative defense but the defense has the burden of proof on -
[Defense Counsel]: I agree those are the current laws and this is the correct instruction but I would rather not have it.[1]
When the jury returned, the trial court informed the jury that the parties
had stipulated that the substance found in the plastic bag on the floorboard of the
Sebring was methamphetamine. The State rested. Then the defense rested
without calling any witnesses.
In closing, the prosecutor argued that Moreno-Cazarez had constructive
possession of the methamphetamine because itwas in his car and immediately
behind his seat. Referring to the jury instructions, the prosecutor argued that
more than one person could possess a single thing at one time.
Defense counsel argued that Moreno-Cazarez did not have dominion and
control over the methamphetamine because he didn't know what was going on
behind him. He argued that Louder alone had dominion and control over the
methamphetamine. Defense counsel concluded, "[W]e have a good case that
1 Report of Proceedings (March 14, 2012) at 87-88. No. 68518-0-1/4
Charles Louder possessed these drugs and [the State is] trying to include Mr.
Moreno-Cazarez in that because he was driving the car."
In rebuttal, the prosecutor argued that the State did not have to prove that
Moreno-Cazarez knew of the methamphetamine or that he was the only person
with dominion and control over it.
The jury found Moreno-Cazarez guilty and the trial court imposed a
standard range sentence.
Moreno-Cazarez appeals.
INEFFECTIVE ASSISTANCE OF COUNSEL
Moreno-Cazarez contends he received ineffective assistance of counsel
when his attorney failed to request an unwitting possession instruction. We
disagree.
We review ineffective assistance of counsel claims de novo.2 To prevail,
a defendant must show that his counsel's performance fell below an objective
standard of reasonableness and that the deficient performance prejudiced his
trial.3 The reasonableness inquiry presumes effective representation and
requires the defendant to show the absence of legitimate strategic or tactical
reasons for the challenged conduct.4 To show prejudice, the defendant must show that but for the deficient performance, there is a reasonable probability that
2 In re Pers. Restraint of Brett, 142 Wn.2d 868, 873, 16 P.3d 601 (2001); see also State v. White. 80 Wn. App. 406, 410, 907 P.2d 310(1995). ^Strickland v. Washington. 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland. 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). 4 McFarland, 127 Wn.2d at 336. No. 68518-0-1/5
the outcome would have been different.5 Failure on either prong defeats a claim
of ineffective assistance of counsel.6
The pattern jury instruction on unwitting possession provides:
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][her] possession] [or][did not know the nature of the substance].
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.[7]
Unwitting possession is a judicially-created affirmative defense; it requires
the defendant to prove by a preponderance of the evidence circumstances
negating culpability that are "uniquely within his knowledge and ability to
establish."8
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
STATE OF WASHINGTON, j No. 68518-0-1 ip &..
Respondent, ) DIVISION ONE ^ CD,"'--"-. v. ] CP %S" MARIO MORENO-CAZAREZ, ; UNPUBLISHED
Appellant. ) FILED: June 10. 2013
Cox, J. — Mario Moreno-Cazarez appeals his conviction of possession of
methamphetamine, claiming he received ineffective assistance of counsel when
his attorney failed to propose an unwitting possession instruction. Because we
conclude that defense counsel made a legitimate tactical decision, we disagree
and affirm.
Kent Police arrested Mark Vander for possession of methamphetamine
with the intent to deliver. In the presence of the police, Vander exchanged calls
with a certain cellular telephone number. Based on the calls, police approached
a white Chrysler Sebring in the parking lot of a Winco Food Store and arrested the driver, who was Moreno-Cazarez, and the backseat passenger, Charles
Louder. In a search incident to arrest, an officer found a pipe of a type often
used with crack or methamphetamine in Louder's pocket.
In a later search of the impounded Sebring, the police found a plastic bag
containing suspected methamphetamine on the floorboard behind the driver's No. 68518-0-1/2
seat. The police also found four cell phones in the car, one of which had the
number associated with Vander's calls.
The State initially charged Moreno-Cazarez with possession of
methamphetamine with intent to deliver. At a pretrial hearing, the trial court
addressed the State's request for disclosure of the defense. The court said to
defense counsel, "I saw in the omnibus order that there might be an unwitting
possession defense." Defense counsel responded, "That would only apply if this
case had been amended to a simple possession." After the court ruled on
certain evidentiary matters, the State amended the charge to possession of
methamphetamine.
At trial, Detective Eric Steffes testified that he interviewed Moreno-
Cazarez at the jail after his arrest. According to Detective Steffes, Moreno-
Cazarez said he was at Winco to meet a guy named Bones and give him a ride
to meet a woman named Theresa. He said he did not know his passenger very
well and only knew him by his nickname, "Chalky." Moreno-Cazarez admitted
that he had purchased the Sebring a few weeks before. When Detective Steffes
asked whether there were any drugs in the car, Moreno-Cazarez told him "there
shouldn't be." Moreno-Cazarez also said there was a plastic bag in the trunk that
belonged to a woman named Jamie. When asked if the bag contained drugs,
Moreno-Cazarez responded, "No drugs that I know."
After the State's last witness had testified, the trial court and the parties
reviewed the proposed jury instructions outside the presence of the jury. The
following exchange occurred: No. 68518-0-1/3
THE COURT: All right, 11 is the unwitting possession WPIC, this is WPIC 52.01, it was partly proposed by the defense but the defense did not include the second paragraph which is the burden of proof being on the defendant.
[Defense Counsel]: Your Honor, I would prefer to not have the instruction at all if it's going to read the ... way the WPICs had it. I believe the instruction, I believe it shifts the burden to the defense to actually disprove dominion and control and I don't like that instruction, I'd like to withdraw the proposal.
THE COURT: I think that this is a correct statement of the law and the other cases that were cited in the WPIC, they describe it as an affirmative defense but the defense has the burden of proof on -
[Defense Counsel]: I agree those are the current laws and this is the correct instruction but I would rather not have it.[1]
When the jury returned, the trial court informed the jury that the parties
had stipulated that the substance found in the plastic bag on the floorboard of the
Sebring was methamphetamine. The State rested. Then the defense rested
without calling any witnesses.
In closing, the prosecutor argued that Moreno-Cazarez had constructive
possession of the methamphetamine because itwas in his car and immediately
behind his seat. Referring to the jury instructions, the prosecutor argued that
more than one person could possess a single thing at one time.
Defense counsel argued that Moreno-Cazarez did not have dominion and
control over the methamphetamine because he didn't know what was going on
behind him. He argued that Louder alone had dominion and control over the
methamphetamine. Defense counsel concluded, "[W]e have a good case that
1 Report of Proceedings (March 14, 2012) at 87-88. No. 68518-0-1/4
Charles Louder possessed these drugs and [the State is] trying to include Mr.
Moreno-Cazarez in that because he was driving the car."
In rebuttal, the prosecutor argued that the State did not have to prove that
Moreno-Cazarez knew of the methamphetamine or that he was the only person
with dominion and control over it.
The jury found Moreno-Cazarez guilty and the trial court imposed a
standard range sentence.
Moreno-Cazarez appeals.
INEFFECTIVE ASSISTANCE OF COUNSEL
Moreno-Cazarez contends he received ineffective assistance of counsel
when his attorney failed to request an unwitting possession instruction. We
disagree.
We review ineffective assistance of counsel claims de novo.2 To prevail,
a defendant must show that his counsel's performance fell below an objective
standard of reasonableness and that the deficient performance prejudiced his
trial.3 The reasonableness inquiry presumes effective representation and
requires the defendant to show the absence of legitimate strategic or tactical
reasons for the challenged conduct.4 To show prejudice, the defendant must show that but for the deficient performance, there is a reasonable probability that
2 In re Pers. Restraint of Brett, 142 Wn.2d 868, 873, 16 P.3d 601 (2001); see also State v. White. 80 Wn. App. 406, 410, 907 P.2d 310(1995). ^Strickland v. Washington. 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland. 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). 4 McFarland, 127 Wn.2d at 336. No. 68518-0-1/5
the outcome would have been different.5 Failure on either prong defeats a claim
of ineffective assistance of counsel.6
The pattern jury instruction on unwitting possession provides:
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][her] possession] [or][did not know the nature of the substance].
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.[7]
Unwitting possession is a judicially-created affirmative defense; it requires
the defendant to prove by a preponderance of the evidence circumstances
negating culpability that are "uniquely within his knowledge and ability to
establish."8
Our review of the record indicates that defense counsel's decision to
withdraw his request for an unwitting possession instruction was a legitimate trial
tactic. As such, there is no basis for concluding that counsel's performance was
deficient.
Based on his statements on the record, it is clear that defense counsel
understood the applicable law and that he correctly conceded that the above
instruction is a correct statement of the law. When it became clear that the trial
5 In re Pers. Restraint of Pirtle. 136 Wn.2d 467, 487, 965 P.2d 593 (1998). 6 Strickland, 466 U.S. at 697; State v. Foster, 140 Wn. App. 266, 273, 166 P.3d 726 (2007). 711 Washington Practice: Washington Pattern Jury Instructions: Criminal 52.01 (3d ed. 2008). 8 State v. Knapp. 54 Wn. App. 314, 317-22, 773 P.2d 134 (1989). No. 68518-0-1/6
court was prepared to give the instruction, counsel made the strategic choice to
withdraw his request for the instruction. It is clear he did so based on his
concern regarding the defense's duty to carry its burden of proof.
The evidence presented at trial regarding Moreno-Cazarez's knowledge
was limited to Detective Steffe's testimony. By not offering the unwitting
possession instruction, counsel was able to argue that Moreno-Cazarez didn't
know what was on the floor behind his seat without assuming any burden of
proof or unnecessarily risking confusing the jury with distinct burdens of proof.
Moreno-Cazarez's defense counsel's tactical decision to put the State to its
burden of proving possession was reasonable and not deficient.
Moreno-Cazarez relies on State v. Thomas.9 That reliance is misplaced.
In Thomas, the defense theory of the case was that Thomas was too intoxicated
to have formed the subjective mental state of wanton or willful disregard of others
required to prove the charged crime.10 But defense counsel failed to propose instructions indicating the subjective component of the law or the relevance of
intoxication to the mental element of the crime.11 The supreme court concluded that defense counsel's performance was deficient because the lack of the proper
instructions allowed opposing counsel to argue conflicting rules of law to the 12 jury.
Here, the trial court properly instructed the jury on the law. Both the
prosecutor and defense counsel presented arguments consistent with the
9 109 Wn.2d 222, 743 P.2d 816 (1987). 10 Id, at 227. 11 Id. at 228. 12 Id.
6 No. 68518-0-1/7
instructions requiring the State to prove possession beyond a reasonable doubt.
Thomas does not support Moreno-Cazarez's claim.
Because Moreno-Cazarez fails to demonstrate defective performance of
his trial counsel, we need not address the prejudice prong of ineffective
assistance of counsel.
We affirm the judgment and sentence.
£*, J" WE CONCUR:
$