IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

STATE OF WASHINGTON,

Respondent,

v.

CLARK ALLEN TELLVIK,

Appellant.

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No. 34525-4-III

UNPUBLISHED OPINION

PENNELL, J. — Clark Allan Tellvik appeals his convictions for first degree 

burglary, possession of a stolen vehicle, possession with intent to deliver a controlled 

substance, making or having burglary tools, possession of a stolen firearm, and second 

degree unlawful possession of a firearm. We reverse Mr. Tellvik’s controlled substance 

conviction, as the evidence in support of that conviction was obtained during an invalid 

inventory search. The remainder of Mr. Tellvik’s convictions are affirmed.

FILED

JUNE 14, 2018

In the Office of the Clerk of Court

WA State Court of Appeals, Division III
No. 34525-4-III

State v. Tellvik

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BACKGROUND

The facts of Mr. Tellvik’s case are set forth in our decision in the companion case 

of State v. Peck, No. 34496-7-III (Wash. Ct. App. May 8, 2018) (unpublished), 

https://www.courts.wa.gov/opinions/pdf/344967_unp.pdf. Those facts need not be 

recounted in detail here. In summary, a property owner in Ellensburg named Laura 

Poulter was alerted by video surveillance equipment that a suspicious person was at her 

residence. A call was placed to 911 and Ms. Poulter, who was visiting friends in Cle 

Elum, then headed home.

When police arrived at Ms. Poulter’s property, they found Mr. Tellvik and Michael 

Peck in the driveway. The two men were attempting to dislodge a truck that had become 

stuck in the snow. Further investigation revealed the truck was stolen. Mr. Tellvik and 

Mr. Peck were arrested and officers performed an inventory search of the truck. The 

search uncovered a black nylon case that looked like it was designed to hold compact 

discs (CDs). Officers opened the case and found packaged methamphetamine, an electric 

scale, and a smoking pipe.

During the days following this incident, Ms. Poulter reviewed the surveillance 

video of her residence. She came to believe that she saw one of the two men drop a gun 

in the snow. She believed the gun was still there and called the police to come out and 
No. 34525-4-III

State v. Tellvik

3

look. By that time, Ms. Poulter’s driveway had been plowed and the area where the truck 

had been parked was buried in compact snow. Officers responded to Ms. Poulter’s 

residence and looked through the driveway. Their initial search was unfruitful. After Ms. 

Poulter continued to insist that a gun had been hidden on her property, the police returned 

with a metal detector and located a handgun.

Mr. Tellvik was charged with first degree burglary, possession of a stolen vehicle, 

possession with the intent to deliver a controlled substance, third degree theft, making or 

having burglary tools, possession of a stolen firearm, and second degree unlawful 

possession of a firearm.

During pretrial proceedings, Mr. Tellvik joined Mr. Peck’s motion to suppress the

fruits of the inventory search. The trial court denied the motion, but did not enter written 

findings of fact and conclusions of law until nearly a year later on March 31, 2017.

Also prior to trial, Mr. Tellvik moved for an order prohibiting the State from 

showing the jury a copy of the surveillance video that had been modified to include 

captions, noting where the gun was believed to have been dropped. The trial court

granted this motion. The court prohibited any “commenting on the evidence.” Report of 

Proceedings (RP) (May 10, 2016) at 210. However, the court specified that witnesses 

would be able to “describe what it is they think they’re seeing” on the video. Id. Defense 
No. 34525-4-III

State v. Tellvik

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counsel raised a concern that law enforcement officers, who might be viewed by the 

jurors as having heightened credibility, should not be able to tell the jurors what is 

depicted in the video. The court agreed this concern was reasonable. The court ruled that 

even though witnesses would be allowed to testify as to what they thought they saw in the 

video, they should not phrase their testimony in terms of what was actually depicted.

At trial, Ms. Poulter was the State’s first witness. During questioning about the 

surveillance video, Ms. Poulter volunteered that what she saw in the video was a gun. 

She testified, “I saw the gun. . . . [W]ell, I know for sure it was a gun,” and “I believe—I 

know for sure because we still-framed it right on the gun.” RP (May 11, 2016) at 330. 

Ms. Poulter further testified, “it couldn’t have been anything but a gun.” Id. Mr. 

Tellvik’s counsel objected to Ms. Poulter’s statements, commenting she “doesn’t know 

for sure what anything was.” Id. The court overruled the objection. No other witness 

testified definitively about whether the object in the video was a gun. Mr. Tellvik’s 

attorney did not seek a mistrial.

The jury found Mr. Tellvik guilty of all charges except third degree theft. The 

court sentenced Mr. Tellvik to 267.5 months’ total confinement. Mr. Tellvik appeals.
No. 34525-4-III

State v. Tellvik

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ANALYSIS

Motion to suppress evidence—inventory search

For the same reasons set forth in our decision in Peck, we agree with Mr. Tellvik 

that the contents of the CD case should have been suppressed as fruits of an illegal 

inventory search. Peck, No. 34496-7-III, slip op. at 7-9. Because the police officers 

lacked either consent or exigent circumstances, the closed CD case should have been 

inventoried as a sealed unit. State v. Wisdom, 187 Wn. App. 652, 671, 675-76, 349 P.3d 

953 (2015); State v. Houser, 95 Wn.2d 143, 158, 622 P.2d 1218 (1980). The doctrine of 

automatic standing applies in this case and confers on Mr. Tellvik the ability to challenge 

the police search. State v. Evans, 159 Wn.2d 402, 407, 150 P.3d 105 (2007).

The trial court should have granted the motion to suppress the contents of the 

closed CD case. Mr. Tellvik’s conviction for possession of a controlled substance must 

therefore be reversed. The trial court’s failure to enter timely findings of fact and 

conclusions of law is moot.

Ineffective assistance of counsel

Mr. Tellvik argues his counsel provided ineffective assistance because she failed 

to move for a mistrial after Ms. Poulter violated the court’s in limine ruling by testifying 

that she knew she saw a gun depicted in the surveillance video. Mr. Tellvik also contends 
No. 34525-4-III

State v. Tellvik

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that had counsel moved for a mistrial, the trial court would have granted the motion. 

Ineffective assistance of counsel is a manifest error affecting a constitutional right that 

can be raised for the first time on appeal. RAP 2.5(a)(3); State v. Brown, 159 Wn. App. 

1, 17, 248 P.3d 518 (2010).

To demonstrate ineffective assistance of counsel, Mr. Tellvik must show both 

deficient performance and resulting prejudice. State v. McFarland, 127 Wn.2d 322, 334-

35, 899 P.2d 1251 (1995). If a defendant fails to satisfy either prong, this court need not 

inquire further. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996). Deficient 

performance occurs when counsel’s performance falls below an objective standard of 

reasonableness. State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997). To show 

prejudice, Mr. Tellvik must demonstrate there is a probability that, but for counsel’s 

deficient performance, “the result of the proceeding would have been different.” 

McFarland, 127 Wn.2d at 335. There is a strong presumption of effective assistance, and 

Mr. Tellvik bears the burden of demonstrating the absence of a strategic reason for the 

challenged conduct. State v. McNeal, 145 Wn.2d 352, 362, 37 P.3d 280 (2002).

Failure to move for a mistrial does not constitute ineffective assistance where it is 

clear that counsel’s motion would have been denied. “A mistrial should be granted when 

the defendant has been so prejudiced that nothing short of a new trial can [e]nsure that the 
No. 34525-4-III

State v. Tellvik

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defendant will be tried fairly.” State v. Gamble, 168 Wn.2d 161, 177, 225 P.3d 973 

(2010). Three factors are necessary to consider when assessing whether an error warrants 

a new trial: the seriousness of the alleged error, whether erroneously admitted evidence 

was cumulative, and whether a proper curative instruction was given to the jury. State v. 

Emery, 174 Wn.2d 741, 765, 278 P.3d 653 (2012).

Here, we find no error that would have warranted a mistrial. Ms. Poulter’s 

testimony that she saw a gun depicted on the surveillance video did not carry any special 

weight that could have prejudiced the jury. Ms. Poulter was not a law enforcement 

officer. She did not purport to have any unique ability to decipher the video or perceive 

firearms. The video was admitted into evidence free from captions and the jurors were 

afforded the same opportunity to assess its contents as Ms. Poulter. At the same time, 

Ms. Poulter’s insistence that she believed she saw a gun in the video was relevant to 

explain why the police twice returned to Ms. Poulter’s residence after the night of Mr. 

Tellvik’s arrest in order to search the driveway.

Given that Ms. Poulter’s testimony helped explain why law enforcement went to 

unusual lengths to search the driveway and that Ms. Poulter’s testimony was not 

particularly prejudicial, the trial court acted within its discretion to alter its in limine 
No. 34525-4-III 

State v. Tellvik 

ruling and permit Ms. Poulter's testimony. Mr. Tellvik has not, therefore, shown that 

counsel was ineffective in failing to request a mistrial. 

CONCLUSION 

We reverse Mr. Tellvik's conviction for possession of a controlled substance with 

intent to deliver and the associated firearm enhancement, affirm his remaining 

convictions, and remand for resentencing consistent with the terms of this opinion. 

A majority of the panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to 

RCW 2.06.040. 

Pennell, J. Q-. 

WE CONCUR: 

Lawrence-Berrey, C.J. 

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