FILED . COURT OF APP{ S DIVISIONii 201 JUN 24 AM 9: 03
IN THE COURT OF APPEALS OF THE STATE OF WASHING AS ' GTO1
DIVISION II
STATE OF WASHINGTON, No. 43996 -4 -II
Respondent,
v.
WILLIAM B. SHOWERS, UNPUBLISHED OPINION
Appellant.
HUNT, J. — William B. Showers appeals his bench trial conviction for possession with
intent to deliver heroin, possession of methamphetamine, and attempting to elude. He argues
that ( 1) insufficient evidence supports his possession convictions; ( 2) the warrantless search of
the backpacks found in his truck bed violated his rights under the Fourth Amendment) and article
72; (
1, section 3) admission of improper opinion testimony denied him his right to a fair trial; ( 4)
defense counsel' s failure to seek suppression of evidence and to object to improper opinion
testimony constituted ineffective assistance; and ( 5) he ( Showers) did not validly waive his state
constitutional right to trial by jury. We affirm.
FACTS
I. CRIMES
On July 6, 2012, City of Raymond Police Officer Eric Fuller observed a pickup truck
traveling with a defective windshield and without a front license plate; William B. Showers was
1 U.S. CONST. amend. IV. 2 WASH. CONST. art. I, § 7. No. 43996 -4 -II
later identified as the driver. Fuller observed Showers exit the highway and turn into the town of
Raymond. Following Showers, Fuller observed him drive through a stop sign before pulling up
to a curb, where a female exited from the passenger side, put on a backpack and a baseball cap,
and walked away at a fast pace, pulling the baseball cap down over her face. Showers quickly
drove away from the curb.
Fuller followed and activated his emergency lights to stop Showers. But Showers
accelerated to approximately 50 MPH in a 25 MPH zone, turned onto Highway 101 at a speed that
caused the pickup to sway, and spun the pickup in a complete 360 -degree turn in the middle of
Highway 101 before coming to a stop, facing the opposite direction of traffic. Pacific County
Sheriff' s Deputy Jonathon Ashley observed the pickup' s spinout and had to brake and to pull
over to the highway shoulder to avoid hitting the pickup. As Fuller pulled up to the stopped
pickup, Showers revved the pickup' s engine and sped off past Fuller into the oncoming lane of
traffic, heading back towards Raymond. Fuller followed Showers; Ashley joined the pursuit.
Off - uty City of Cosmopolis Police Deputy Chief Heath Laymen observed Showers and d
the officers enter and exit Highway 101. Sitting in his open Jeep outside a Raymond printing
shop near the Highway 101 merge lane, Laymen observed Showers drive past the printing shop
at an estimated 60 MPH in a 25 MPH zone and travel into oncoming traffic, causing at least one
vehicle to brake to avoid a head -on collision with Showers. Laymen observed Fuller' s fully
marked police car attempting to stop the pickup with its activated sirens and lights; Laymen later
identified the pickup' s driver as Showers.
Showers sped through Raymond at an estimated 50 -60 MPH in a 25 MPH zone, driving
through at least two stop signs. Standing in a park next to the fire station, City of Raymond Fire
2 No. 43996 -4 -II
Department paramedic William Didion heard tires screeching, saw Showers drive through the
park directly towards him, and ran out of Showers' path to avoid being struck.
Fuller followed Showers traveling down . an alley at more than 20 MPH over the
alleyway' s safe speed limit toward a child sweeping rocks and garbage in front of an auto parts
store. The child' s father heard tires squeal, ran out into the alley to find Showers' pickup a foot
away from his child, and immediately pulled his child out of Showers' path.
Fuller continued to follow Showers out of the alley onto Alder Street and proceeded to
the intersection of Second and Blake Streets, hoping to intercept Showers but could not locate
him. Fuller stopped at the intersection of Second and Alder Streets, looked to the left, and
observed the pickup abandoned in the middle of the street, with the driver' s door open. Officers
approached the pickup to ensure it was unoccupied, took the keys from the ignition so it could
not be driven, and then began searching for Showers. Citizens in the area pointed and directed
the officers to a local establishment, where a sweaty, out -of-breath, shirtless Showers was hiding
in the restroom. The officers took Showers into custody.
Showers' Community Corrections Officer ( CCO), Linda Tolliver, was called to the
scene, where she observed Showers in the back of a police vehicle and his pickup truck with its
doors open. In her capacity as Showers' CCO, Tolliver searched the pickup, located several
backpacks in the bed of the truck, and, with Fuller' s assistance, searched the backpacks3; inside
3 See RCW 9. 94A.631( 1): " If there is reasonable cause to believe that an offender has violated a condition or requirement of the sentence, a community corrections officer may require an offender to submit to a search and seizure of the offender' s person, residence, automobile, or other personal property."
3 No. 43996 -441
the backpacks they found heroin, two scales, several small plastic baggies, methamphetamine, a
pipe and hypodermic needles.
II. PROCEDURE
The State charged Showers with possession of heroin with intent to deliver, possession of
methamphetamine, and attempting to elude a pursuing police vehicle. Showers waived his right
to a jury trial and elected a bench trial. At a pretrial hearing, the trial court reviewed the written
waiver that Showers had signed in consultation with his counsel, engaged in a colloquy with
Showers about this waiver, and ruled that Showers understood his right to a jury trial and that his
waiver of his right to a jury trial was knowing, intelligent, and voluntary.
At trial, three law enforcement officers testified that Showers had driven in a " reckless"
manner as previously described. The trial court found Showers guilty of possession of heroin
with intent to deliver, possession of methamphetamine, and attempting to elude a pursuing police
vehicle. Showers appeals.
ANALYSIS
I. JURY TRIAL WAIVER
Showers contends that he did not validly waive his right to a jury trial. This argument
fails.
Washington law requires that a defendant personally express a waiver of his or her jury
trial right in order for the waiver to be valid. State v. Pierce, 134 Wn. App. 763, 771, 142 P. 3d
610 ( 2006). But Washington law does not require the trial court to conduct an extensive on - the-
record colloquy with the defendant before determining whether the defendant validly waived his
jury trial right. Pierce, 134 Wn. App. at 771. " As a result, the right to a jury trial is easier to
4 No. 43996 -4 -II
waive than other constitutional rights." State v. Benitez, 175 Wn. App. 116, 129, 302 P. 3d 877
2013).
We review de novo the validity of a jury trial waiver. State v. Ramirez- Dominguez, 140
Wn. App. 233, 239, 165 P. 3d 391 ( 2007). A defendant' s waiver of his or her jury trial right must
be made knowingly, intelligently, voluntarily, and without improper influences. State v. Stegall,
124 Wn.2d 719, 724 -25, 881 P. 2d 979 ( 1994). A written jury trial waiver " is strong evidence
that the defendant validly waived the jury trial right." Pierce, 134 Wn. App. at 771. " An
attorney' s representation that the defendant' s waiver is knowing, intelligent, and voluntary is
also relevant" to a determination of whether the defendant' s jury trial waiver was valid. Benitez,
175 Wn. App. at 128 ( citing Pierce, 134 Wn. App. at 771). Additionally, we consider whether
the trial court informed the defendant of his or her jury trial right. Pierce, 134 Wn. App. at 771.
Showers argues that under article I, sections 21 and 22 of the Washington Constitution,
a valid waiver of the state constitutional right to a jury trial requires a thorough understanding
of the right." Br. of Appellant at 32. He argues that because the record does not prove that he
thoroughly understood the right and the practical and legal consequences of his waiver, his waiver was not knowing, intelligent, and voluntary. Showers also asks us to overrule our
recently affirmed jury trial waiver opinions in Benitez and Pierce, both upholding jury trial
waivers in similar circumstances.
Gunwall4
Showers argues that the six factors establish that waiver of a jury trial under the
state constitution requires a higher showing than waiver under the federal constitution. Showers
recognizes that we recently rejected this same argument in Pierce and Benitez, but he argues
4 State v. Gunwall, 106. Wn.2d 54, 720 P. 2d 808 ( 1986).
5 No. 43996 -4 -II
these cases were wrongly decided and should be overturned. We rejected this argument in
Pierce and Benitez because, in those cases, the defendants' reliance on Gunwall was misplaced.
And we decline to revisit or to overrule those cases here.
Showers presented the trial court with a written waiver of his jury trial right. The trial
him5, court conducted a colloquy with ensuring that ( 1) he understood his right to a jury trial, ( 2)
he had discussed the matter with his attorney so he understood what he was waiving, and ( 3) his
request was voluntary. These procedures show that Showers personally expressed his desire to
waive his jury trial right and that his waiver was knowing, intelligent, and voluntary. The record
supports the trial court' s ruling that Showers validly waived his right to a jury trial.
5 The trial court questioned Showers to be sure he was knowingly, voluntarily, and intelligently waiving his right to a trial by jury: THE COURT: ... Mr. Showers, I know Mr. Hatch reviewed this with you but I' m asking you at this time, the Waiver of Jury Trial means that you' re giving up your constitutional right to have 12 people sit over there to your left and decide whether to acquit you or whether to find you guilty of the crime that the State has charged. You' re giving up that right and if I find that you' re doing this knowingly, intelligently, and voluntarily and I certify this, then in very plain, simple vernacular, you' re stuck with me or whichever judge hears that case. It' s a one - way street. I know you know this. I' m just making sure that is what your understanding is at this present time. SHOWERS]: Yes, sir. THE COURT: Very well. And are you in agreement with the Waiver of Jury Trial? SHOWERS]: I am. THE COURT: Did you sign it only after you reviewed it with your attorney so you were certain you knew what you were signing? SHOWERS]: Yes, sir. THE COURT: Very well. Thank you. Did you sign of your own free will? SHOWERS]: I did. THE COURT: Any threats or coercion? SHOWERS]: No. THE COURT: Very well. Verbatim Report of Proceedings ( VRP) ( Aug. 31, 2012) at 3 -4.
6 No. 43996 -4 -II
II. WARRANTLESS SEARCH
For the first time on appeal, Showers challenges the warrantless search of the backpacks
Amendment6 7 under both the Fourth and article 1, section 7, arguing that the officers unlawfully
searched his vehicle without a search warrant. At trial, however, Showers neither filed a motion
to suppress nor challenged the lawfulness of the vehicle search and the seizure of evidence from
the vehicle. Because Showers failed to raise these arguments below, there was no suppression
hearing and no record developed on which we can review these first time challenges.
A party must raise an issue at trial to preserve it for appeal, unless the party can show the
presence of a "` manifest error affecting a constitutional right ' under RAP 2. 5( a)( 3). State v.
Kirwin, 165 Wn.2d 818, 823, 203 P. 3d 1044 ( 2009) ( quoting State v. McFarland, 127 Wn.2d
322, 333, 899 P. 2d 1251 ( 1995)).. Issue preservation rules " encourage ` the efficient use of
judicial resources' ... by ensuring that the trial court has the opportunity to correct any errors,
thereby avoiding unnecessary appeals." State v. Robinson, 171 Wn.2d 292, 304 -05, 253 P. 3d 84
2011) ( quoting State v. Scott, 110 Wn.2d 682, 685, 757 P. 2d 492 ( 1988)).
Courts employs a two - pronged analysis to determine whether a non - preserved error is a
manifest error affecting a constitutional right" under RAP 2. 5( a). See State v. Grimes, 165 Wn.
App. 172, 179 -80, 267 P. 3d 454 ( 2011). First, the court must determine whether an alleged error
6 The Fourth Amendment to the United States Constitution protects individuals from unreasonable searches and seizures. U. S. CONST. amend IV.
7 Article I, section 7 of the Washington Constitution provides: " No person shall be disturbed in his private affairs, or his home invaded, without authority WASH. CONST. art. I, § 7. of law." Article I, section 7 requires " no less" than the Fourth Amendment. State v. Patton, 167 Wn.2d 379, 394, 219 P. 3d 651 ( 2009). A valid warrant, subject to a few jealously guarded exceptions, establishes the requisite "` authority of law. "' State v. Afana, 169 Wn.2d 169, 176 -77, 233 P. 3d 879 ( 2010) ( quoting WASH. CONST. art. I, § 7).
7 No. 43996 -4 -II
is truly constitutional; second, the court must determine whether the alleged error is " manifest."
Grimes, 165 Wn. App. at 180. Showers' challenge to the legality of the search and seizure of the
drug evidence from his pickup is constitutional in nature. Thus, we turn to the manifest error
prong of the test.
A constitutional error is " manifest" if it caused actual prejudice. State v. O' Hara, 167
Wn.2d 91, 99, 217 P. 3d 756 ( 2009); State v. Gordon, 172 Wn.2d 671, 676, 260 P. 3d 884 ( 2011).
To demonstrate actual prejudice, the appellant must plausibly show that the asserted error had
practical and identifiable consequences at trial. O' Hara, 167 Wn.2d at 99. Because Showers
fails to show such consequences, he fails to show that alleged constitutional error is manifest.
O' Hara, 167 Wn. 2d at 99; McFarland, 127 Wn.2d at 333. Holding that Showers cannot argue
for the first time on appeal that the search and seizure of evidence were illegal, we do not further
address this issue. 8 RAP 2. 5( a).
III. SUFFICIENT EVIDENCE
Showers contends that sufficient evidence does not support his convictions for drug
possession because ( 1) the State failed to demonstrate that he had dominion and control over the
drugs; and ( 2) the trial court' s findings of fact were insufficient to support the legal conclusion
that he had possessed the drugs. We disagree.
A. Standard of Review
Evidence is sufficient to support a conviction if, "after viewing the evidence and all
reasonable inferences from it in the light most favorable to the State, a rational trier of fact could
8 Were we to address this claim, Showers' argument would fail because the search was pre - authorized as a condition of Showers' community custody and did not require a search warrant. No. 43996 -4 -II
find each element of the crime proven beyond a reasonable doubt." State v. Homan, 172 Wn.
App. 488, 490 -91, 290 P. 3d 1041 ( 2012) ( citing State v. Green, 94 Wn.2d 216, 221, 616 P. 2d
628 ( 1980)), review granted, 177 Wn.2d 1022 ( 2013). " A claim of insufficiency admits the truth
of the State' s evidence and all inferences that reasonably can be drawn therefrom." State v.
Salinas, 119 Wn.2d 192, 201, 829 P. 2d 1068 ( 1992). " Circumstantial evidence and direct
evidence are equally reliable." State v. Moles, 130 Wn. App. 461, 465, 123 P. 3d 132 ( 2005)
citing State v. Delmarter, 94 Wn.2d 634, 638, 618 P. 2d 99 ( 1980)). We " defer to the trier of
fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the
evidence." State v. Thomas, 150 Wn.2d 821, 874 - 75, 83 P. 3d 970 ( 2004) ( citing State v. Cord,
103 Wn.2d 361, 367, 693 P. 2d 81 ( 1985)).
Where, as here, the defendant is tried by a court sitting without a jury, our review is
limited to determining whether substantial evidence supports the trial court' s findings of fact and
whether these findings support its conclusions of law. State v. Stevenson, 128 Wn. App. 179,
193, 114 P. 3d 699 ( 2005). We consider unchallenged findings of fact as verities on appeal. Id.
We review conclusions of law de novo. Id.
B. Analysis
1. Constructive possession
Showers contends that the State failed to demonstrate that he had dominion and control
over the drugs. The State counters that as the driver and sole occupant of the pickup, Showers
constructively possessed the drugs found in the backpacks in the pickup' s bed. We agree with
the State.
9 No. 43996 - -II 4
To establish Showers' guilt, the State had to prove beyond a reasonable doubt that he
9 possessed a controlled substance. RCW 69. 50. 4013( 1). Possession can be actual or
constructive. State v. Callahan, 77 Wn. 2d 27, 29, 459 P. 2d 400 ( 1969); State v. George, 146
Wn. App. 906, 920, 193 P. 3d 693 ( 2008). A person has actual possession when he or she has
physical custody of the item and constructive possession when he or she has dominion and
control over the item. State v. Jones, 146 Wn.2d 328, 333, 45 P. 3d 1062 ( 2002). Whether a
person had dominion and control over an item depends on the totality of the circumstances.
State v. Jeffrey, 77 Wn. App. 222, 227, 889 P. 2d 956 ( 1995).
A person' s dominion and control over a premises allows the trier of fact to infer that the
person also has dominion and control over items in the premises. State v. Cantabrana, 83 Wn.
App. 204, 208, 921 P. 2d 572 ( 1996). For dominion and control purposes, an automobile is
considered " premises." State v. Turner, 103 Wn. App. 515, 521, 13 P. 3d 234 ( 2000). Dominion
and control of premises can be shared; it need not be exclusive to establish constructive
possession of controlled substances found thereon. State v. Cote, 123 Wn. App. 546, 549, 96
P. 3d 410 ( 2004). And "[ p] ossession of keys to a locked area is probative of constructive
possession of items within that area." State v. Turner, 18 Wn. App. 727, 731, 571 P. 2d 955
1977).
Viewed in a light most favorable to the State, the totality of the circumstances here show
that the trial court could have reasonably inferred that Showers exercised dominion and control
over the pickup and the controlled substances it contained. Showers was the pickup' s driver and
9 The legislature amended RCW 69. 50. 4013 in 2013. LAws OF 2013, ch. 3§ 20. The
amendments did not alter the statute in any way relevant to this case; accordingly, we cite the current version of the statute.
10 No. 43996 -4 -II
lone occupant at the time of the stop. He used the vehicle to the exclusion of others after the
vehicle' s earlier occupant left the pickup, taking with her another backpack. Showers' skill in
maneuvering the pickup while speeding through alleys and residential streets to elude the
officers showed that he handled the pickup with familiarity. That Showers eventually abandoned
the pickup, with the key in the ignition, and fled on foot are indicia of guilt. See State v.
Brunton, 66 Wn.2d 111, 112, 401. P. 2d 340 ( 1965) ( "[ F] light is an instinctive or impulsive
reaction to a consciousness of guilt or is a deliberate attempt to avoid arrest and prosecution. ");
State v. Porter, 58 Wn. App. 57, 58 -59, 62, 791 P. 2d 905 ( 1990) ( proximity to illegal drugs,
together with other corroborative evidence tending to show guilt, is sufficient to establish the
dominion and control over the drugs necessary to constitute constructive possession). Citizens'
pointing the officers in the direction of Showers' flight was also circumstantial evidence of his
dominion and control over the pickup. This evidence and related inferences support the trial
court' s finding that Showers had dominion and control over the vehicle and thus, constructively
possessed the controlled substances found in the backpacks in the truck.'°
2. Dominion and control over vehicle; constructive possession of drugs
Relying on a Division Three case, State v. Shumaker, 142 Wn. App. 330, 174 P. 3d 1214
2007), Showers argues that evidence of his dominion and control over the premises is
insufficient to establish that he had dominion and control of the controlled substances on the
premises. Showers' reliance on Shumaker is misplaced because the holding focused on the trial
10 Accordingly, we need not address the State' s argument that Showers' possession of the truck' s keys established his constructive possession of the truck. See State v. Bowen, 157 Wn. App. 821, 828, 239 P. 3d 1114 ( 2010). No. 43996 -4 -II
court' s erroneous jury instructions. Here, in contrast, Showers does not contend that a jury was
improperly instructed.
Rather, he argues that the trial court erred in concluding that dominion and control over
the vehicle was sufficient to establish his constructive possession of its contents. Division One
of this court, however, has noted the distinction between instructional error and claims of
insufficient evidence in the constructive possession context:
When the sufficiency of the evidence is challenged on the basis that the State has only shown dominion and control only over premises, and not over drugs, courts correctly say that the evidence is sufficient because dominion and control over premises raises a rebuttable inference ofdominion and control over the drugs.
Cantabrana, 83 Wn. App. at 208 ( emphasis added), which we cited with approval in State v.
11 Turner, 103 Wn. App. at 523.
Here, the trial court could presume Showers' constructive dominion and control over the
drugs in the backpack from his sole dominion and control over the pickup in which the backpack
was found. Viewing the facts in favor of the State, especially the inference of guilt from
Showers' frantic flight in his speeding vehicle and on foot, a rational trier of fact could find
beyond a reasonable doubt that Showers constructively possessed the drugs.
11 In Turner, we adopted Division One' s reasoning in .Cantabrana, but held that when this reasoning is applied to unlawful firearm possession, under Anderson, knowledge is required. Turner, 103 Wn. App. at 524 ( citing State v. Anderson, 141 Wn.2d 357, 357, 5 P. 3d 1247 2000)). In Anderson, the Washington Supreme Court rejected the assertion that unlawful possession of a firearm is a strict liability defense and held that knowledge of the possession or presence of a firearm is an element of the crime. Anderson, 141 Wn.2d at 359. See also State v. Chouinard, 169 Wn. App. 895, 900 -02, 282 P. 3d 117 ( 2012), review denied, 176 Wn.2d 1003 2013), in which we differentiated between constructive possession by the vehicle owner and by the passenger, citing the same rule as above, but not applying it because passenger Chouinard was in mere proximity to the gun, not in dominion and control of the gun.
12 No. 43996 -4 -II
3. Actual possession not required
Showers further contends that the trial court failed to find that he could have reduced the
controlled substances to actual possession, apparently based on our decision in State v.
Chouinard, 169 Wn. App. 895, 282 P. 3d 117 ( 2012), review denied, 176 Wn.2d 1003 ( 2013),
which he believes stands for the proposition that, to establish possession, a trial court must find
that a defendant could have reduced the controlled substances to actual possession. Showers is
incorrect.
First, Chouinard, in which we focused on a passenger charged with possession of a
firearm, does not stand for the proposition that a defendant must be able to reduce a controlled
substance to actual possession. Second, in Chouinard, we determined that a backseat
passenger' s mere proximity to a weapon in the trunk of a vehicle not owned by the passenger,
and his knowledge of the weapon' s presence, were insufficient to establish dominion and control
and that this evidence alone could not sustain a conviction for constructive possession of a
firearm by the passenger. Chouinard, 169 Wn. App. at 903.
Nevertheless, we distinguished between vehicle drivers /owners and vehicle passengers,
noting that ( 1) courts have found " sufficient evidence of constructive possession, and dominion
and control, in cases in which the defendant was either the owner of the premises or the
12 driver / owner of the vehicle where the contraband was found, " but ( 2) courts " hesitate to find
sufficient evidence of dominion or control where the State charges passengers with constructive.
12 See Bowen, 157 Wn. App. at 828; Turner, 103 Wn. App. at 521; State v. McFarland, 73 Wn. App.57, 70, 867 P. 2d 660 ( 1994), aff'd, 127 Wn.2d 322, 899 P. 2d 1251 ( 1995); State v. Reid, 40 Wn. App. 319, 326, 698 P. 2d 588 ( 1985); State v. Echeverria, 85 Wn. App. 777, 783, 934 P.2d 1214 ( 1997).
13 No. 43996 -4 -II
13 possession. " Chouinard, 169 Wn. App. at 899 -900. Here, in contrast with passenger
Chouinard, Showers drove the vehicle: He was never a backseat passenger. And after his earlier
passenger exited the pickup with a backpack, he was in sole control of the pickup and its
remaining contents. Here, constructive possession of the drugs was sufficient to support
Showers' conviction; it was not necessary for the State to prove actual possession or the ability
to reduce the drugs to his immediate dominion and control.
C. Findings of Fact Support Conclusions of Law about Controlled Substances Possession
Showers further contends that in finding that he possessed the drugs, the trial court relied
on facts not relevant to establishing dominion and control, such as "' the, circumstances of the
elude ..., flight from the vehicle, [ and manner] in which the vehicle was controlled. "' Br. of
Appellant at 14 ( some alterations in original) ( quoting Clerk' s Papers ( CP) at 8 ( Findings of Fact
FF) 20)). Showers mischaracterizes the trial court' s findings; he also fails to articulate the
relevant facts" on which the trial court should have relied in finding dominion and control.
The trial court found:
Given the totality of the circumstances of the elude, flight from the vehicle, manner] in which the vehicle was controlled, the fact that Mr. Showers was the lone occupant, and that Mr. Showers utilized the vehicle to the exclusion of others demonstrates to this Court that Mr. Showers had dominion and control over this vehicle. Mr. Showers had sufficient dominion and control over the vehicle to be in possession of the c ontents therein including the controlled substances found therein.
CP at 8 ( FF 20). As we have previously noted, whether a person has dominion and control over
an item depends on the totality of the circumstances. Jeffrey, 77 Wn. App. at 227. Here, the trial
court properly considered the totality of the circumstances in concluding that Showers had
13 See George, 146 Wn. App. at 923; Cote, 123 Wn. App. at 546.
14 No. 43996 -4 -II
dominion and control over the pickup, including the drugs found in the backpack in the pickup.
Accordingly, we hold that there was sufficient evidence to support Showers' possession
convictions.
IV. OPINION TESTIMONY
Showers next argues that the trial court erred by admitting improper opinion testimony
from three law enforcement witnesses, Officer Fuller, Officer Layman, and Deputy Ashley,
whom he claims impermissibly testified about their opinions of his guilt. Showers failed to
trial14
preserve this issue for appeal when he did not object at to any of this purportedly improper
opinion testimony. Generally, parties may not claim errors for the first time on appeal. State v.
Kirkman, 159 Wn.2d 918, 926, 155 P. 3d 125 ( 2007).
As we have previously explained, appellants may raise a claim for the first time on appeal
if it is a " manifest error affecting a constitutional right." RAP 2. 5( a). But "[ a] dmission of
witness opinion testimony on an ultimate fact, without objection, is not automatically reviewable
as a ` manifest' constitutional error." Kirkman, 159 Wn.2d at 936. To merit appellate review in
these circumstances, a defendant must show that the alleged error caused " actual prejudice" or
practical and identifiable consequences ' at his trial. Kirkman, 159 Wn.2d at 935 ( internal
quotation marks omitted) ( quoting State v. WWJ Corp., 138 Wn.2d 595, 603, 980 P. 2d 1257
1999)). Here, Showers has not shown that the admission of this challenged testimony caused
actual prejudice at trial. Therefore, we do not further consider this argument.
14 Showers did object to Fuller' s testimony about whether he thought the child in the alley was in danger when Showers sped by in his pickup truck, which objection the trial court overruled. But this testimony is not what Showers now challenges on appeal. Instead, he challenges Fuller' s, Layman' Ashley' characterizing his ( Showers') driving as " reckless," which Showers now s, and s
claims for the first time on appeal were improper opinions of guilt. Br. of Appellant at 21.
15 No. 43996 -4 -II
V. EFFECTIVE ASSISTANCE OF COUNSEL
Showers argues that his trial counsel rendered ineffective assistance by ( 1) failing to
move to suppress the drugs, and ( 2) failing to object to improper opinion testimony. These
arguments also fail.
We review ineffective assistance of counsel claims de novo. State v. Cross, 156 Wn.2d
580, 605, 132 P. 3d 80 ( 2006). To prevail on an ineffective assistance of counsel claim, Showers
must show both that ( 1) counsel' s performance was deficient and ( 2) the deficient performance
prejudiced him. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674
1984); State v. 45, Brockob, 159 Wn.2d 311, 344 - 150 P. 3d 59 ( 2006). If Showers fails to
establish either prong of this test, our inquiry ends and we need not consider the other prong.
State v. Hendrickson, 129 Wn.2d 61, 78, 917 P. 2d 563 ( 1996).
A. Failure To Move To Suppress Drugs
Failure to bring a motion to suppress is not per se deficient performance. McFarland,
127 Wn.2d at 322. Counsel can legitimately decline to seek suppression if there is no viable
ground for such a motion. State v. Nichols, 161 Wn.2d 1, 14, 162 P. 3d 1122 ( 2007). Thus, to
base an ineffective assistance claim on counsel' s failure to move to suppress evidence, the
defendant must show that the trial court would likely have granted such a motion. McFarland,
127 Wn.2d at 333 -34. Showers fails to make such a showing.
At the time of his arrest, Showers was in community custody, which allowed his CCO to
search his person, residence, automobile, or personal property if there was reason to believe that
16 No. 43996- 4- 11
he had violated a condition of supervision» See RCW 9. 94A.631( 1). Here, in fleeing from law
enforcement in a speeding truck, Showers was in the process of committing a felony, a violation
of his community custody. He also had an outstanding Department of Corrections' arrest
warrant for another violation. The pickup Showers was driving had been in his exclusive control
15 Although Showers does not address this point in the context of his ineffective assistance of counsel argument, in his warrantless search argument, he contends that his community custody status did not justify the search and seizure at issue in this appeal. He argues that ( 1) under State v. Winterstein, 167 Wn.2d 620, 220 P. 3d 1226 ( 2009), a CCO must have probable cause to believe that the premises to be searched are actually connected to the supervisee; ( 2) here, his CCO lacked probable cause to believe that the backpacks belonged to him; and ( 3) thus, his CCO' s search of the backpacks was unauthorized. This argument fails. First, the Winterstein holding does not apply here because it addresses only a supervisee' s residence, not a vehicle. Second, even if Winterstein applied here, there was probable cause to search the backpacks in the pickup: The record shows that the officers had probable cause to believe that Showers had committed a violation of his community custody release by committing a felony ( attempting to elude) and that he was in exclusive control of the vehicle searched until he fled from it. As we explained earlier, Showers' possession of the pickup gave the CCO probable cause to believe the backpacks in the pickup' s bed were also in Showers' possession. Showers further contends that his community custody status did not justify his CCO' s search of the backpacks because there was no nexus between them and his suspected violation of his community custody In so arguing, Showers appears to concede that his CCO had conditions.
reasonable cause to believe that he had violated these conditions by attempting to elude a police officer or .by driving recklessly; instead, he argues that his CCO could not have expected to find evidence of violations in the backpacks. But Showers provides no authority for the proposition that there must be a nexus between the suspected community custody violation and the premises searched.
Furthermore, the law is to the contrary: A community custody search need not be particularized or limited by scope. State v. Parris, 163 Wn. App. 110, 122, 259 P. 3d 331 ( 2011) alteration in original) ( Conway, 122 F.3d 841, 843 ( 9th Cir. 1997) quoting United States v.
Because [ the CCO] had reasonable grounds to suspect that Conway had violated the terms of his release, the search was valid under Washington law. It does not matter whether the community corrections officers believed they would find evidence of Conway' s address or contraband when they opened the shoeboxes. Washington law does not require that the search be necessary to confine the suspicion of impermissible activity, or that it cease once the suspicion has been Accordingly, Showers' community custody status, and the confirmed.'")).
CCO' s probable cause to believe that Showers had committed a felony and that he was in possession of the pickup, provided Showers' CCO with authority to search the pickup and the backpacks in the pickup' s bed.
17 No. 43996 -4 -II
before he fled from it, which was subject to search by his CCO under RCW 9. 94A.631( 1). Thus,
Showers' trial counsel may have legitimately chosen not to move to suppress the evidence seized
from the pickup because the search was pre -authorized and legal as a condition of Showers'
community custody. Thus, to the extent that Showers bases his ineffective assistance claim on of counsel' s failure to move to suppress evidence, this claim fails.
B. Failure To Object
Given the deference we afford defense counsel' s decisions in the course of
representation, the threshold for deficient performance is high. State v. Grier, 171 Wn.2d 17, 33,
246 P. 3d 1260 ( 2011), remanded, 168 Wn. App. 635, 278 P. 3d 225 ( 2012). There is a strong
presumption that counsel has rendered adequate assistance and has made all significant decisions
by exercising reasonable professional judgment. State v. Lord, 117 Wn.2d 829, 883, 822 P. 2d
177 ( 1991). To show ineffective assistance by failing to object, Showers must show ( 1) absence
of legitimate strategic or tactical reasons for failing to object; ( 2) that the objection would likely
have been sustained if raised; and ( 3) that the result of the trial would have been different if the
evidence had not been admitted. State v. Saunders, 91 Wn. App. 575, 578, 958 P.2d 364 ( 1995).
This Showers fails to do.
As a threshold matter, the law enforcement officers' testimony was not improper opinion
testimony about Showers' guilt; rather it was their eyewitness account about the " reckless"
manner in which they had seen Showers driving —high speeds, through narrow alleys, through a
stop sign, against the flow of oncoming traffic, spinning 360 degrees in the roadway, coming
dangerously close to a child playing at the street' s edge, through a park, and nearly colliding
head -on with another vehicle. We agree with the trial court that this testimony was admissible.
18 No. 43996 -4 -II
Thus, we hold that Showers fails to show the deficient performance prong of the ineffective
assistance of counsel test.
But even if this testimony was improper opinion testimony, its admission was harmless.
Overwhelming eyewitness testimony about Showers' erratic driving would lead any reasonable
person to conclude that Showers was driving recklessly. Thus, Showers cannot show how the
officers' characterizing his driving as " reckless" had any significant effect on the jury' s verdict.
We hold, therefore, that he fails to show ineffective assistance of counsel when he failed to
object to the officers' testimony that his driving was reckless.
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.