Filed Washington State Court of Appeals Division Two
October 2, 2018 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 50112-1-II
Respondent,
v.
SHANE CHRISTOPHER GILBERT, UNPUBLISHED OPINION
Appellant.
WORSWICK, J. — Shane Christopher Gilbert appeals his conviction for possession of a
controlled substance with the intent to deliver. Gilbert argues that (1) the trial court erred in
admitting certain items of physical evidence because the State failed to establish the chain of
custody, (2) the evidence is insufficient to show his constructive possession of drugs found in a
car, and (3) he received ineffective assistance of counsel because his trial counsel did not move
to suppress untested evidence purported to contain drugs.
We hold that (1) Gilbert failed to preserve his chain of custody argument for appeal, (2)
there is sufficient evidence to support his conviction, and (3) Gilbert received effective assistance
from his trial counsel. Consequently, we affirm Gilbert’s conviction.
FACTS
While patrolling near Bonney Lake, Deputy Dennis Miller observed a Toyota 4Runner
parked in front of a residence, seemingly unoccupied. 1 Deputy Miller peered through the rear
window of the 4Runner and observed a body lying on the floorboards between the front and back
1 Neither party contends that Mr. Gilbert is the owner of the 4Runner. No. 50112-1-II
seats. The upper half of the body was covered with clothing and a shop vac. Deputy Miller
could see the body from the waist down. Deputy Ken Solbrack arrived at the scene to assist
Deputy Miller. Both deputies repeatedly attempted to rouse the person by knocking on the
window and speaking. The body did not move.
Fearing this person between the seats was either having a medical emergency or
deceased, Deputy Miller opened the rear door. The person, later identified as Gilbert, moved his
hand quickly toward his waistband area. Deputy Miller recognized Gilbert and was aware that
he had an outstanding warrant for his arrest, so Deputy Miller took Gilbert into custody. Deputy
Miller then searched Gilbert’s person and found a glass drug pipe with residue, a zippered orange
pouch, a small clear plastic bag containing a white crystalline substance, and forty dollars cash.
Deputy Miller placed the items on the hood of his patrol vehicle. He did not open the orange
pouch, but felt that the pouch contained something.
During the search, Gilbert began to shake and convulse as if he were suffering from a
seizure. Deputy Solbrack called for medical assistance. Krystal Nyland emerged from the
residence and alerted the deputies that Gilbert was hypoglycemic. Nyland’s hair was dyed green
and red. She retrieved some chocolate pudding to give to Gilbert. While Nyland knelt and
administered scoops of pudding into Gilbert’s mouth, the pair conversed. Neither Deputy Miller
nor Deputy Solbrack heard what was said.
After speaking with Gilbert, Nyland stood up, grabbed the orange pouch from the hood of
the patrol vehicle, and ran. Deputy Solbrack gave chase but was unable to catch Nyland.
Deputy Solbrack returned to the scene, retrieved his patrol car, and continued to pursue Nyland.
He located and apprehended Nyland, who was hiding in some blackberry bushes along the road.
2 No. 50112-1-II
The amount of time between Nyland’s flight from the scene and her apprehension was less than a
minute. Deputy Solbrack searched Nyland and found a small bag of suspected
methamphetamine. She did not have the orange pouch. A K-9 Unit was brought to the scene
and found the orange pouch in blackberry bushes up an embankment along where Nyland had
run. Inside the orange pouch Deputy Miller found two bags: one containing a large uncut rock of
suspected methamphetamine and the other containing smaller pieces of suspected
methamphetamine.
Vance Mettlen, a firefighter and paramedic who responded to the aid call, observed a
female with bright multicolored hair running down the street with “something baglike” in her
hand. 2 Verbatim Report of Proceedings (VRP) at 340. Mettlen observed her moving quickly,
falling and trying to throw the bag multiple times. Thomas Lewis, who had pulled over to the
side of the road to yield to the firetruck, also saw Nyland. Lewis saw a woman with green hair
staggering down the road and carrying what looked like a paper bag. Lewis observed her
attempting to throw the bag multiple times. She then attempted to hide. Lewis directed Deputy
Solbrack to her location.
Gilbert later admitted to Deputy Miller that he uses a large amount of methamphetamine.
However, Gilbert denied selling methamphetamine, and denied possessing any that day.
The following day, Deputy Eric Jank searched the 4Runner and discovered a metal box
on the floorboards between the front and back seats. The metal box was located under where
Gilbert’s legs would have been when he was first spotted by Deputy Miller. Inside the metal box
were three bags of suspected methamphetamine, a digital scale, a cigarette package containing
unused clear bags, and a plastic container with white residue. Deputy Jank photographed the
3 No. 50112-1-II
contents of the metal box before sending them for testing. One photograph depicted the three
bags of suspected methamphetamine appearing to contain similar substances and packaged
similarly.
Also on the following day, Gilbert made a telephone call while in police custody. On the
call, Gilbert was heard saying “they hit me with 101 grams.” 3 VRP at 463. He also said, “I had
five ounces on me, and I dropped off two to Michelle,” and “All I was going to do was drop off
some to you all, some to my b**ch.” 3 VRP at 463. The State charged Gilbert with possession
of a controlled substance, to wit, methamphetamine, with the intent to deliver in violation of
RCW 69.50.401(1)(2)(b).
At trial, witnesses testified to the above facts. Additionally, Deborah Price, an analyst
from the Washington State Patrol Crime Laboratory, testified. She tested five different items of
evidence obtained from the scene. She tested the bag from Gilbert’s pants pocket and confirmed
it contained 2.8 grams of methamphetamine. Price tested the contents of two bags from the
orange pouch, the uncut rock and smaller pieces found in the orange pouch, which both
contained methamphetamine. One of these bags weighed 52.5 grams. Price also randomly
tested one of the three bags found inside the metal box. She found that the tested bag contained
methamphetamine. 2 Price did not testify as to why she randomly tested one of the three bags
from the box instead of testing all three. Further, she did not test the plastic container with the
white residue found in the metal box.
2 Price did not testify regarding how much the other bag from the orange pouch or the three bags from the metal box weighed. However, Deputy Miller testified that his combined weight of two bags from the orange pouch was 106.9 grams, including the weight of the bags. Deputy Jank stated his measurement of the three bags from the metal box was 36.7 grams.
4 No. 50112-1-II
The trial court admitted several exhibits during the proceeding. The small bag from
Gilbert’s pants pocket was marked as “Exhibit” 15. Exhibits 16 and 17 were the two larger bags
containing the uncut rock and smaller pieces, found in the orange pouch. Exhibit 18 was the
orange pouch itself. Gilbert did not object to the admission of Exhibits 15, 16, 17, or 18.
Exhibit 21 contained the three bags taken from the metal box. Deputy Jank took a
photograph of these three bags during his search of the metal box, which was admitted as Exhibit
13. Gilbert did not object to the admission of either Exhibits 13 or 21. Exhibit 24 was the plastic
container found in the metal box. Gilbert objected to the relevancy of Exhibit 24, but the court
admitted the evidence over his objection. Exhibit 26 was the metal box itself and was admitted
without objection.
During closing argument, Gilbert’s counsel aimed to cast doubt on Exhibit 21, because
two of the three bags were not tested. Specifically, Gilbert’s attorney argued, “But keep in mind,
ladies and gentlemen, that what’s been admitted as No. 21, which contained three packages, she
only weighed or tested one. So what’s the other? Don’t know. If we speculate, but we can’t. . .
. You[’ve] got to run it through these tests. You got to compare the crystals.” 4 VRP at 550.
The State’s closing argument emphasized the cumulative amount of methamphetamine as
Gilbert’s intent to deliver.
A jury found Gilbert guilty as charged. Gilbert appeals his conviction.
ANALYSIS
I. CHAIN OF CUSTODY OF THE ORANGE POUCH AND ITS CONTENTS
Gilbert argues that Exhibits 15, 16, and 17 were improperly admitted because the State
did not prove a sufficient chain of custody after Nyland took the pouch from Deputy Miller’s
5 No. 50112-1-II
patrol vehicle and ran from the scene. The State argues that Gilbert failed to preserve this
argument by not objecting during trial.
We agree with the State and hold that Gilbert failed to preserve his chain of custody
argument for appeal because he failed to object to the exhibits’ admission below.
With limited exceptions, we will not review an issue raised for the first time on appeal.
RAP 2.5(a). A party objecting to the admission of evidence must make a timely and specific
objection at trial unless the error constitutes manifest constitutional error. RAP 2.5(a)(3). When
the defendant fails to object to an alleged error at trial, he “has the initial burden of showing that
(1) the error was ‘truly of constitutional dimension’ and (2) the error was ‘manifest.’” State v.
Grimes, 165 Wn. App. 172, 185-86, 267 P.3d 454 (2011) (quoting State v. O’Hara, 167 Wn.2d
91, 98, 217 P.3d 756 (2009)). “Generally evidentiary errors are not of [a] constitutional
magnitude.” State v. Grier, 168 Wn. App. 635, 643 n.16, 278 P.3d 225 (2012) (citing State v.
Chase, 59 Wn. App. 501, 508, 799 P.2d 272 (1990)).
Here, Gilbert did not object to the admission of Exhibits 15, 16, or 17 during his trial. On
appeal, Gilbert makes no attempt to show that the admission of these exhibits is manifest
constitutional error. We hold that Gilbert failed to preserve his chain of custody issue regarding
Exhibits 15, 16, and 17, and we do not consider Gilbert’s chain of custody argument.
II. CONSTRUCTIVE POSSESSION OF THE METAL BOX
Gilbert argues that insufficient evidence supports his conviction because the State failed
to prove his constructive possession of the metal box that contained a digital scale, three bags of
suspected methamphetamine, a cigarette package containing unused clear bags, and a plastic
6 No. 50112-1-II
container with white residue. 3 He contends that he did not exercise dominion or control over the
metal box, but was merely in close proximity to it. Specifically, Gilbert argues that “[a]bsent
Exhibits 15, 16, and 17, as argued [previously], and absent Exhibits 21 and 24, there is no
evidence that Mr. Gilbert possessed methamphetamine with intent to deliver.”4,5 Br. of
Appellant at 18-19. We hold that sufficient evidence supports Gilbert’s possession of
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). Such inferences must be drawn in favor of the State and
interpreted most strongly against the defendant. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d
1068 (1992). We defer to the jury on issues of conflicting testimony, credibility of witnesses,
3 Gilbert appears to briefly argue that the State failed to establish his dominion and control over the methamphetamine and “scales in the box.” Br. of Appellant at 15. But the State was under no obligation to prove that Gilbert was in legal “possession” of the digital scale. In the criminal law context, the “constructive possession” doctrine allows the State to prove possession of contraband in cases where possession of the item is an element of the crime. See State v. Callahan, 77 Wn.2d 27, 29, 459 P.2d 400 (1969); State v. George, 146 Wn. App. 906, 919-20, 193 P.3d 693 (2008). Gilbert provides no law to support an argument that the State was required to prove constructive possession of the scale, so we do not address it. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549(1992); RAP 10.3(a)(5)-(6). 4 Exhibits 15, 16, 17, and 21 were all baggies containing methamphetamine. Exhibit 24 was a plastic container with white residue. 5 Despite this statement, Gilbert makes no separate argument that insufficient evidence supported his intent to distribute. His brief argues only constructive possession.
7 No. 50112-1-II
and the persuasiveness of the evidence. State v. Andy, 182 Wn.2d 294, 303, 340 P.3d 840
(2014). Circumstantial evidence is not any less reliable or probative than direct evidence in
reviewing the sufficiency of the evidence supporting a jury verdict. State v. Delmarter, 94
Wn.2d 634, 638, 618 P.2d 99 (1980).
Here, the State was required to prove beyond a reasonable doubt (1) that Gilbert
possessed methamphetamine (2) with the intent to deliver it (3) in the State of Washington.
RCW 69.50.401. Gilbert argues only that the State failed to adequately prove constructive
possession of the metal box.
In reviewing claims of constructive possession, this court examines whether, under the
totality of the circumstances, the defendant exercised dominion and control over the contraband
in question. State v. Turner, 103 Wn. App. 515, 521, 13 P.3d 234 (2000). In some
circumstances the ability to immediately take actual possession of an item can establish
dominion and control, however, mere proximity to the item by itself cannot. Turner, 103 Wn.
App. at 521. Where only mere proximity is established, other facts must enable the trier of fact
to infer dominion and control. Turner, 103 Wn. App. 521. Such factors include ownership of
the item or dominion and control over the premises. Turner, at 521-22. An automobile may be
considered premises for the purpose of determining whether the defendant exercised dominion
and control over the premises where the narcotic drugs were found. State v. Coahran, 27 Wn.
App. 664, 668-69, 620 P.2d 116 (1980).
In support of his argument, Gilbert cites State v. Callahan, 77 Wn.2d 27, 31, 459 P.2d
400 (1969); State v. Spruell, 57 Wn. App. 383, 388, 788 P.2d 21 (1990); and State v. George,
146 Wn. App. 906, 923, 193 P.3d 693 (2008), where there was no constructive possession found.
8 No. 50112-1-II
However, these cases are factually distinguishable. In State v. Callahan, the defendant stayed on
a houseboat for two or three days but was not a tenant. Callahan, 77 Wn.2d at 31. The
defendant was in close proximity to the drugs, admitted to handling them earlier in the day, and
had books, guns, and a set of broken scales on board the houseboat. Callahan, 77 Wn.2d at 31.
However, another person testified that the drugs belonged to him, not the defendant. Callahan,
77 Wn.2d at 31. Because the State did not controvert the direct proof of ownership of the drugs
by the other person, the State could not establish the defendant’s dominion and control over
them. Callahan, 77 Wn.2d at 31-32.
Relying on Callahan, State v. Spruell declined to find constructive possession when the
defendant was a mere visitor in the house, was proximate to the drugs found, and momentarily
handled the drugs. Spruell, 57 Wn. App. at 388. Similarly, State v. George focuses on mere
proximity with the State failing to prove facts or circumstances regarding possession. George,
146 Wn. App. at 923.
However the facts of this case are more similar to those in State v. Mathews, 4 Wn. App.
653, 484 P.2d 942 (1971). In Mathews, this court determined a passenger exercised dominion
and control over heroin found in the car because not only was the heroin located in very close
proximity to the passenger, but because additional factors existed. Mathews, 4 Wn. App. at 656-
58. Mathews was a known heroin user and had heroin paraphernalia in his pocket, he had
purchased and used heroin that day, and the other passengers in the car testified that they were
unaware the heroin was there. Mathews, 4 Wn. App. at 656-57.
Here, considering the totality of the circumstances, Gilbert exercised dominion and
control over the methamphetamine contained in the metal box. Turner, 103 Wn. App. at 521.
9 No. 50112-1-II
Similar to Mathews, Gilbert was in close proximity to the metal box, admitted to being a
methamphetamine user, and had other methamphetamine and methamphetamine paraphernalia
on his person. The metal box was in the passenger compartment, directly underneath Gilbert at
the time of his arrest, allowing him the opportunity to immediately take actual possession of it.
Further, Gilbert made incriminating statements regarding intent to deliver different amounts of
methamphetamine in a recorded phone conversation. Moreover, there was no evidence that
another person claimed ownership of the metal box.
Consequently, there was sufficient evidence for the jury to find, beyond a reasonable
doubt, that Gilbert had constructive possession of the methamphetamine in the metal box.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
Gilbert argues his trial counsel was ineffective for failing to suppress Exhibit 24, a plastic
container with white residue, and Exhibit 21, three bags of a crystalline substance. He contends
he was prejudiced by these exhibits’ admission into evidence because the substances were
partially or totally untested. The State argues Gilbert waived this issue regarding Exhibit 24
because he omitted the issue from his assignment of error. We consider Gilbert’s arguments
regarding both Exhibits 24 and 21, and hold that Gilbert did not receive ineffective assistance.
The Sixth Amendment to the United States Constitution and article I, section 22 of the
Washington Constitution guarantee effective assistance of counsel. State v. Grier, 171 Wn.2d
17, 32, 246 P.3d 1260 (2011). To show that he received ineffective assistance of counsel, a
defendant must show that defense counsel’s conduct was deficient and that the deficient
performance resulted in prejudice. State v. Linville, ___Wn.2d___, 423 P.3d 842, 847 (2018).
10 No. 50112-1-II
Because both prongs must be met, a failure to show either prong will end our inquiry. State v.
Classen, ___Wn. App. 2d ___, 422 P.3d 489, 498 (2018).
To establish deficient performance, the defendant must show that trial counsel’s
performance fell below an objective standard of reasonableness. State v. Johnston, 143 Wn.
App. 1, 16, 177 P.3d 1127 (2007). Trial strategy and tactics cannot form the basis of a finding of
deficient performance. State v. Cienfuegos, 144 Wn.2d 222, 227, 25 P.3d 1011 (2001).
Prejudice can be shown only if there is a reasonable probability that, absent counsel’s
unprofessional errors, the result of the proceeding would have been different. Johnston, 143 Wn.
App. at 16. We review ineffective assistance claims de novo. State v. Sutherby, 165 Wn.2d 870,
883, 204 P.3d 916 (2009).
There is a strong presumption that defense counsel’s conduct was not deficient. State v.
Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004). Because of this presumption, “the
defendant must show in the record the absence of legitimate strategic or tactical reasons
supporting the challenged conduct by counsel.” State v. McFarland, 127 Wn.2d 322, 336, 899
P.2d 1251 (1995). We do not consider matters outside the trial record. Linville, 423 P.3d at 847.
Failing to bring a motion to suppress evidence can constitute ineffective assistance.
Reichenbach, 153 Wn.2d at 137. But counsel may legitimately decline to move for suppression
on a particular ground if the motion is unfounded. State v. Nichols, 161 Wn.2d 1, 14, 162 P.3d
1122 (2007). There is no ineffectiveness of counsel if a challenge to admissibility of evidence
would have failed. Nichols, 161 Wn.2d at 14-15.
11 No. 50112-1-II
A. Exhibit 24, the Plastic Container
As an initial matter, the State contends that we should not consider this issue because
Gilbert failed to assign error regarding Exhibit 24, the plastic container found in the metal box.
We disagree.
Generally, error must be assigned for an issue to be considered on appeal. State v. Olson,
74 Wn. App 126, 128, 872 P.2d 64 (1994), aff’d 126 Wn.2d 315, 893 P.2d 629 (1995).
Nevertheless, a “‘technical violation of the rules will not ordinarily bar appellate review, where
justice is to be served by such review. . . . [W]here the nature of the challenge is perfectly clear,
and the challenged finding is set forth in the appellate brief, [we] will consider the merits of the
challenge.’” State v. Williams, 96 Wn.2d 215, 220, 634 P.2d 868 (1981) (some alterations in
original) (quoting Daughtry v. Jet Aeration Co., 91 Wn.2d 704, 710, 592 P.2d 631 (1979)).
Here, although Gilbert fails to mention Exhibit 24 in his assignment of error 5, Brief of
Appellant at 1, he makes arguments regarding Exhibit 24 multiple times in his brief. The nature
of the challenge is clear, and the State was on notice of Gilbert’s argument regarding Exhibit 24
and had the opportunity to respond. Thus, we reach the merits of Gilbert’s argument on Exhibit
24 for his ineffective assistance of counsel claim.
Gilbert contends that because the white residue in the container was not tested, his
counsel was ineffective for failing to move to suppress Exhibit 24. We disagree.
We first recognize that Gilbert’s counsel objected to the relevance of Exhibit 24, but the
objection was overruled. Counsel’s relevancy objection could be viewed as addressing the lack
of testing because without knowing the identity of the residue, the container’s relevancy was
12 No. 50112-1-II
doubtful. Viewed in this light, counsel’s performance was not deficient because he made the
objection, but was overruled.
Moreover, even assuming counsel’s performance was deficient, Gilbert has not shown
prejudice. Although the State emphasized the cumulative amount of methamphetamine in this
case to help prove the intent to deliver, the record does not reflect that the plastic container
residue was calculated in this total amount.
The evidence admitted at trial included the digital scale, clean plastic bags,
methamphetamine in Gilbert’s pants pocket, methamphetamine in the orange pouch, and
Gilbert’s statements in the recorded phone conversation. There is not a reasonable probability
that the outcome of Gilbert’s trial would have been different. We hold that Gilbert did not
receive deficient performance from his trial counsel, nor was he prejudiced by the admission of
Exhibit 24 into evidence. As such, Gilbert’s ineffective assistance of counsel as to Exhibit 24
fails.
B. Exhibit 21, Three Bags of a White Crystalline Substance
Exhibit 21 consisted of three baggies filled with what appeared to be a similar substance.
Deborah Price, the crime laboratory analyst, tested the substance from one of these three baggies,
yet all three baggies were admitted into evidence without objection. Gilbert contends that his
trial counsel was deficient for failing to move to suppress the two untested bags of crystalline
substance in Exhibit 21. Gilbert argues he was prejudiced because the jury convicted him
partially because of the sheer volume of methamphetamine produced in evidence. We hold that
Gilbert’s trial counsel was not deficient.
13 No. 50112-1-II
When a substance is consistent in appearance and packaging, scientific testing of a
random portion of the substance is reliable and supports a finding that the total amount is
consistent with the result of the randomly tested portion. State v. Caldera, 66 Wn. App 548, 550,
832 P.2d 139 (1992). “[A] toxicologist can sometimes provide random sampling testimony,
indicating a tested substance was most likely similar to an untested substance. . . . [S]uch
testimony must be based on the foundation that the tested and untested materials appeared
similar.” State v. Crowder, 196 Wn. App. 861, 879, 385 P.3d 275 (2016), review denied, 188
Wn.2d 1003 (2017).
Here, Exhibit 21 consisted of three bags of a white crystalline substance. These three
bags were discovered in the metal box found where Gilbert was laying in the 4Runner. The
analyst chose one of the three bags at random. The results reveal the tested bag in Exhibit 21
contained methamphetamine. The analyst did not explain why she chose only one bag at random
in Exhibit 21 instead of testing all three, nor did she testify that they all appeared similar.
Because the State arguably failed to lay a proper foundation, Gilbert’s counsel could have
properly objected to admission of the untested bags.
However, Gilbert does not point to any evidence of trial counsel’s strategic or tactical
decisions in the record supporting his argument that his trial counsel was ineffective.
Conversely, the failure to object to this easily remedied foundational error appears to be tactical
as evidenced in the record by counsel’s closing argument. In his closing remarks, Gilbert’s
attorney argued, “But keep in mind, ladies and gentlemen, that what’s been admitted as No. 21,
which contained three packages, she only weighed or tested one. So what’s the other? Don’t
know. If we speculate, but we can’t. . . . You[’ve] got to run it through these tests. You got to
14 No. 50112-1-II
compare the crystals.” 4 VRP at 550. The reasonable doubt argument about the two untested
bags was a tactic utilized by Gilbert’s counsel. Trial tactics cannot form the basis of a finding of
deficient performance.
Because Gilbert fails to meet his burden to show that trial counsel’s performance was
deficient as to Exhibit 21, his ineffective assistance of counsel claim fails.
APPELLATE COSTS
Gilbert argues that this court should decline to impose appellate costs because he is
indigent. The State represents that it will not seek appellate costs in this case. We accept the
State’s representation and waive appellate costs.
We affirm Gilbert’s conviction.
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.
Worswick, P.J. We concur:
Johanson, J.
Melnick, J.