State Of Washington, V Tyson T. Maxwell

• Court: Court of Appeals of Washington
• Decided: May 6, 2014
• Docket: 44077-6
• Status: Unpublished

Opinion

FILED COU I OF' APPEALS DIVISION IT 2014 HAY - 6 Ay All 8: 29 IN THE COURT OF APPEALS OF THE STATE OFS RgipOr. 3, DIVISION II ` EIDIJ'' Y STATE OF WASHINGTON, No. 44077 -6 -II

Respondent,

v.

TYSON TAKUMI MAXWELL, UNPUBLISHED OPINION

Appellant.

MELNICK, J. — Tyson Maxwell appeals his convictions for first degree unlawful

possession of a firearm, unlawful possession of a controlled substance ( methamphetamine,

MDMA1)

oxycodone, marijuana, and with intent to distribute, making false or misleading

statements to a law enforcement officer, and unlawful use of drug paraphernalia. He also

appeals the legal financial obligation ( LFO) portion of his sentences. Specifically, he argues ( 1)

his unlawful possession of a firearm conviction, ( 2) the trial court insufficient evidence supports

violated his right to a public trial and his right to be present, and ( 3) the trial court erred by

imposing LFOs. He also argues in his statement of additional grounds ( SAG) that he received

ineffective assistance of counsel and that there is insufficient evidence to uphold his unlawful

possession of a controlled substance with intent to distribute convictions. Because there is

insufficient evidence to support Maxwell' s unlawful possession of a firearm charge as either a

principal or an accomplice, we reverse that conviction and remand for the trial court to dismiss

the charge with prejudice and resentence Maxwell. We affirm Maxwell' s remaining convictions

and sentences, including imposition of LFOs.

FACTS

1 MDMA is 3 -, 4- methylenedioxymethamphetamine, or more commonly known as Ecstasy. 44077 -6 -II

I. BACKGROUND

On the morning of May 9, 2012, Officers Dave Miller and Alfred Stanford responded to a

call regarding unwanted people in a hotel room at the Comfort Inn in Lacey, Washington. When

nobody responded to their pounding on the door, the officers used the manager' s key and found two men sleeping in their respective beds. After waking the men, the officers identified

themselves as police and asked if the men were okay.

Miller observed " two smoking devices, a bag of marijuana, and then [ sic] tinfoil with a

black burnt line it." 1 Report of Proceedings ( RP) at 62. He placed the men in long on

Miranda2

handcuffs, the beds in found sleeping, and read them their sat them on which they were

rights. The men had no identification, and when questioned, both men provided false names.

Maxwell subsequently confirmed his true and correct name. The police identified the other man

as Anthony Banek. Maxwell told Miller that he came to the hotel room with a girl he met the

previous night and that nothing in the room belonged to him. The room had actually been rented

by Jisu Barbie Kim and Kim' s boyfriend, who the hotel manager testified was not Maxwell but another gentleman with Kim.

When Miller exited the room to apply for a telephonic search warrant, another officer

noticed Maxwell moving and fidgeting toward the head of the bed. The officer investigated and

found a roll banded of rubber - money on the bed and some loose $ 20 bills sticking out of

Maxwell' s pocket. The money in the rubber band totaled $ 1, 921 and the loose bills in

Maxwell' s pocket totaled $ 80.

2 Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 ( 1966). 2 44077 -6 -II

After obtaining the search warrant, the officers searched the room with Maxwell present.

hollow tinfoil4 near pen3

They found numerous pieces of evidence, including: a and a piece of

the money; a small baggie of marijuana, a marijuana pipe, and a methamphetamine pipe at the

end of Maxwell' s bed; a long piece of tinfoil with a burnt line down the middle, another hollow

pen, and two tablets inside a small container on a table; and another piece of tinfoil and pay / we o

sheets on or in the nightstand. The officers also seized a small baggie of methamphetamine, a

methamphetamine pipe, and a roll of tinfoil. In Banek' s pillowcase was a bottle containing 14

pills. Under Banek' s mattress the officers found a loaded . 357 magnum revolver and in a

backpack on the floor of the closet were three bullets. The officers also seized four knives,

including one found on Maxwell' s person, and four cell phones.

II. PROCEDURAL HISTORY

Maxwell proceeded to a jury trial. The court conducted voir dire in open court with

Maxwell present. After questioning the prospective jurors, the attorneys exercised their

challenges for cause. The trial court then stated:

The next step in this process, ladies and gentlemen, is the part where we actually choose the jurors in this During that process, the lawyers will be having a case.

discussion with the clerk to my left, and some of those discussions are going to involve maybe looking out at your numbers and indicating their preferences and some discussions that the whole idea is that you don' t hear what' s going on.

RP ( Jury Voir Dire) at 131.

At trial, Miller testified as an expert witness. He told the jury that, based on his training

and experience, the $ 2, 001 in cash Maxwell possessed was a large sum of money for a street

level dealer and that Maxwell likely had the cash because he was getting ready to buy more

3 Miller testified that hollow pens are often used as a pipe or straw to consume narcotics.

4 Miller testified that tinfoil is used to smoke prescription drugs. 3 44077 -6 -II

product. He also apprised the jury that people often work together or in groups to sell drugs and

for dealers to carry have Miller that it is common drug weapons and multiple cell phones.

further stated that the pay /owe sheets found in the nightstand contained various written words

and numbers that are associated with drug dealing and that the writing included Banek' s and

Maxwell' s nicknames.

A forensic scientist testified that the small baggie contained methamphetamine, the two

tablets were MDMA, and the fourteen pills tested positive for oxycodone. An evidence

technician confirmed the green leafy substance was marijuana.

Banek, who had accepted a plea bargain for his involvement, testified that the controlled

substances were his. Banek further testified that the firearm and bullets were his, that he hid the

firearm from everyone, and that Maxwell did not know about the firearm.

The jury found Maxwell guilty on all counts. The trial court sentenced Maxwell to 100

months in prison and imposed LFOs. Maxwell did not object to the trial court' s imposition of

the LFOs. Maxwell timely appeals.

ANALYSIS

I. SUFFICIENCY OF THE EVIDENCE- UNLAWFUL POSSESSION OF A FIREARM

Maxwell argues insufficient evidence exists to support the jury' s verdict on his unlawful

possession of a firearm charge. When viewing the evidence in the light most favorable to the

State, there is insufficient evidence to prove that Maxwell had dominion and control over the

firearm, or that he knew of the firearm' s presence. We reverse Maxwell' s conviction for

unlawful possession of a firearm and remand to the trial court to dismiss with prejudice.

4 44077 -6 -II

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). " A

claim of insufficiency admits the truth of the State' s evidence and all inferences that reasonably

can be drawn therefrom." Salinas, 119 W. 2d at 201. "[ A] 11 reasonable inferences from the

evidence must be drawn in favor of the State and interpreted most strongly against the

defendant." Salinas, 119 Wn.2d at 201. Circumstantial evidence and direct evidence are

deemed equally reliable. State v. Delmarter, 94 Wn. 2d 634, 638, 618 P. 2d 99 ( 1980).

determinations for the trier of fact and cannot be reviewed on appeal." State v. Credibility are

Camarillo, 115 Wn.2d 60, 71, 794 P. 2d 850 ( 1990).

A person commits first degree unlawful possession of a firearm when " the person owns,

has in his or her possession, or has in his or her control any firearm after having previously been 5 convicted ... of any serious offense as defined in this chapter. " RCW 9. 41. 040( 1)( a). To

establish that Maxwell unlawfully possessed a firearm, the State had to prove that he knowingly possessed it. State v. Anderson, 141 Wn.2d 357, 366, 5 P. 3d 1247 ( 2000).

State Raleigh, 157 Wn. App. 728, Knowing possession may be actual or constructive. v.

737, 238 P. 3d 1211 ( 2010). Constructive possession is "' established by showing the defendant

had dominion and control over the firearm. ' State v. Murphy, 98 Wn. App. 42, 46, 988 P. 2d

1018 ( 1999) ( quoting State v. Echeverria, 85 Wn. App. 777, 783, 934 P. 2d 1214 ( 1997)).

Dominion and control" means that the item " may be reduced to actual possession immediately."

State v. Jones, 146 Wn.2d 328, 333, 45 P. 3d 1062 ( 2002). In establishing dominion and control,

5 At trial, Maxwell stipulated that he had committed a serious offense prior to the events in this case and, thus, that element is not at issue on appeal. 5 44077 -6 -II

the totality of the circumstances must be considered and no single factor is dispositive. State v.

Alvarez, 105 Wn. App. 215, 221, 19 P. 3d 485 ( 2001). The defendant' s control over the firearm

does not have to be exclusive. Raleigh, 157 Wn. App. at 737. But mere proximity to the firearm

is insufficient to show control. Raleigh, 157 Wn. App. at 737.

In the present case, there is no contention that Maxwell had actual possession of the

firearm. There is also insufficient evidence to prove Maxwell had dominion and control of the

firearm, or that he even knew of its presence. In State v. Chouinard, 169 Wn. App. 895, 902-

03, 282 P. 3d 117 ( 2012), review denied, 176 Wn. 2d 1003 ( 2013), we found the State presented

insufficient evidence of constructive possession where the State demonstrated only the

defendant' s proximity to the firearm in the vehicle in which he was a passenger and that the defendant had knowledge of the weapon' s presence in the vehicle. We held that evidence of

mere proximity and knowledge, alone, is insufficient to show the defendant had dominion and control of the firearm, and, thus, could not sustain a conviction for constructive possession of a

firearm. Chouinard, 169 Wn. App. at 902 -03. Just as the defendant in Chouinard was in close

proximity to the firearm in the vehicle, Maxwell was in close proximity to where the firearm was hidden in the hotel room — between Banek' s mattress and box spring.

The State argues that Maxwell had knowledge of the firearm because after his arrest he

had a phone conversation where he did not deny knowing about it. However, these statements

must be considered in light of the fact Maxwell was present when the officers located and seized

the firearm. There is no evidence Maxwell knew about the firearm before the officers found it

hidden between Banek' s mattress and box spring. Because the State proved only Maxwell' s

mere proximity to the firearm, there is insufficient evidence to prove that Maxwell had

constructive possession of the firearm. State v. Lee, 158 Wn. App. 513, 517, 243 P. 3d 929 6 44077 -6 -II

2010) ( "[ A] defendant with prior felony convictions may not be in violation of the law by

simply being near a firearm if [the defendant] has not exercised dominion or control over the

weapon or premises where the weapon is found. ").

Further, because there is a lack of proof that Maxwell knew of the firearm' s presence, he

cannot be found guilty as an accomplice. RCW 9A.08. 020( 3)( a). An accomplice does not have

to have knowledge of every element of the crime, but must have general knowledge of the

specific substantive crime committed. State v. Roberts, 142 Wn.2d 471, 512 -13, 14 P. 3d 713

2000); State v. Sweet, 138 Wn.2d 466, 479, 980 P. 2d 1223 ( 1999). "[ F] or one to be deemed an

accomplice, that individual must have acted with knowledge that he or she was promoting or

for that individual was eventually charged." State v. Cronin, 142 facilitating the crime which

Wn.2d 568, 579, 14 P. 3d 752 ( 2000) ( emphasis in original).

Accordingly, there is insufficient evidence to prove Maxwell possessed the firearm or knew of its, presence underneath Banek' s mattress. We reverse Maxwell' s conviction of first

degree unlawful possession of a firearm and remand this case to the trial court with instructions

to dismiss the unlawful possession of a firearm conviction with prejudice and resentence

Maxwell.

II. RIGHT TO A PUBLIC TRIAL

Maxwell argues the trial court violated his right to a public trial by allowing the attorneys

to exercise peremptory challenges during a sidebar. In State v. Dunn, No. 43855 -1 - II, 2014 WL

here. In recently decided the issue Maxwell Apr. 8, 2014), raises 1379172 ( Wash. Ct. App. we

Dunn, we held that the trial court did not violate a defendant' s right to a public trial when the

2014 WL 1379172, at * 3. In attorneys exercised peremptory challenges during a sidebar.

deciding this issue, we adopted the reasoning of Division Three in State v. Love, 176 Wn. App. 7 44077 -6 -II

911, 309 P. 3d 1209 ( 2013) ( peremptory challenges done at sidebar). Dunn controls here.

Therefore, the trial court did not violate Maxwell' s public trial right and his challenge fails.

III. RIGHT TO BE PRESENT

Maxwell also argues the trial court violated his right to be present by allowing the

attorneys to exercise peremptory challenges during a sidebar. Here, the record is unclear

whether Maxwell was present when the attorneys exercised their 'peremptory challenges. The

record shows that Maxwell was present during jury voir dire, and Maxwell argues there is no

indication in the record that he joined counsel at the clerk' s station when they exercised their

challenges. At best, this allegation is supported by the trial court' s statement, " The peremptory

next step in this process, ladies and gentlemen, is the part where we actually choose the jurors in this case. During that process, the lawyers will be having a discussion with the clerk to my left."

Although the trial court did not specifically call Maxwell to the clerk' s station with his

attorney, there is no indication whether Maxwell did or did not accompany counsel when counsel exercised the peremptory challenges. Because the record is unclear whether Maxwell was

present at the clerk' s station during the exercise of peremptory challenges, the claim relies, at

least in part, on facts outside the record on appeal. We do not address issues on direct appeal

that rely on facts outside the record. State v. McFarland, 127 Wn.2d 322, 335, 899 P. 2d 1251

1995).

IV. LEGAL FINANCIAL OBLIGATIONS ( LFOS)

Maxwell argues the trial court lacked authority to impose a drug court fee and erred when

it determined he had the present or future ability to pay. But Maxwell did not object to the trial

court' s imposition of the fines or fees. Therefore, he has waived his ability to challenge the trial 8 44077 -6 -II

court' s imposition of LFOs on appeal. RAP 2. 5( a); State v. Blazina, 174 Wn. App. 906, 911,

301 P. 3d 492, review granted, 178 Wn.2d 1010 ( 2013).

V. SAG ISSUES

A. INEFFECTIVE ASSISTANCE OF COUNSEL

Maxwell asserts his trial counsel provided ineffective assistance. Because counsel' s

performance was not deficient, we hold Maxwell received effective assistance of counsel.

To prove ineffective assistance of counsel, Maxwell must show that counsel' s

performance was so deficient that it "fell below an objective standard of reasonableness" and that

the deficient performance prejudiced him. State v. Thomas, 109 Wn.2d 222, 225 -26, 743 P. 2d

816 ( 1987) ( quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984)). Performance is not deficient if counsel' s conduct can be characterized as a

legitimate trial strategy. State v. Kyllo, 166 Wn.2d 856, 863, 215 P. 3d 177 ( 2009). To establish

prejudice, the defendant must show a reasonable probability that the deficient performance

affected the outcome of the trial. Thomas, 109 Wn.2d at 226 ( quoting Strickland, 466 U. S. at

694). We review ineffective assistance of counsel claims de novo. State v. Sutherby, 165 Wn.2d

870, 883, 204 P. 3d 916 ( 2009).

Maxwell first contends that counsel provided ineffective assistance for not requesting a

fingerprint analysis of the firearm found in the hotel room. and for not requesting that a

be the pay / owe sheets found in the hotel room. Counsel' s handwriting analysis performed on

decisions were legitimate trial strategies. By not requesting fingerprint or handwriting analyses,

trial counsel avoided any possible negative findings from the analyses and was also able to argue

at trial that the investigating officers had not done fingerprint or handwriting analyses nor did

they have such proof that the items in the room were Maxwell' s or that the pay /owe sheets were 9 44077 -6 -II

authored by him. Trial counsel asked Miller, "[ Y] ou didn' t have any fingerprints taken off of

of the items, tinfoil or otherwise ?" to which Miller responded that he did not " believe so." 2 any

RP at 233. Thus, counsel' s performance in not requesting fingerprint and handwriting analyses

was a legitimate trial strategy.

Maxwell next asserts counsel provided ineffective assistance for objecting to a

photograph of him only for its depiction of his tattoo and not because it showed him in handcuffs. The challenged photograph is not in the record, and other than Maxwell' s argument

that the photograph shows him in handcuffs, there is no other evidence or support in the record

that the challenged photograph shows him in handcuffs. Thus, we cannot properly review

Maxwell' s argument.

Lastly, Maxwell contends counsel provided ineffective assistance for failing to object to the jail phone conversations and allowing the State to play portions of the recording, which, in

turn, Maxwell argues allowed the jury to take his statements out of context. The State, however,

played the entirety of the call and not portions as Maxwell alleges. Thus, this argument fails.

We hold Maxwell' s trial counsel provided effective assistance of counsel.

B. SUFFICIENCY OF THE EVIDENCE - POSSESSION WITH INTENT TO DELIVER

Maxwell asserts there is insufficient evidence to uphold his unlawful possession of a

controlled substance with intent to deliver convictions. We hold there was sufficient evidence

to allow a rational trier of fact to find, beyond a reasonable doubt, that Maxwell is guilty of

unlawful possession of a controlled substance ( methamphetamine, oxycodone, MDMA, and

marijuana) with intent to deliver. See Salinas, 119 Wn.2d at 201. The officers found a small

6 Maxwell does not specifically identify which unlawful possession with intent to deliver convictions he is challenging and, instead, argues generally that there is insufficient evidence to support the convictions. 10 44077 -6 -II

baggie of marijuana, two MDMA tablets, 0. 1 grams of methamphetamine, fourteen oxycodone

pills, a marijuana pipe, a methamphetamine pipe, hollowed pens that are commonly used for

consumption of drugs, a piece of burnt foil with a black line down the middle, approximately

2, 000 in cash, four cell phones, a roll of tinfoil, and pay /owe sheets in the hotel room in which

Maxwell was found sleeping. Additionally, Maxwell provided a false name to officers when

asked for his identification in the hotel room. Accordingly, there is sufficient evidence to

support Maxwell' s unlawful possession of a controlled substance with intent to deliver

convictions.

We reverse Maxwell' s unlawful possession of a firearm conviction and remand for the

trial court to dismiss the conviction with prejudice and resentence Maxwell. We affirm.

Maxwell' s remaining convictions and sentences, including imposition of LFOs.

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.

We concur: