### FILED 

# COURTOFAPPEAL S DIVISION IT 201/ i 

### AUG 1 2 f 

### I2• If6

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

v. ZACHARY CRAWFORD, DIVISION II
Respondent,

Appellant. No. 44285 -0 -II UNPUBLISHED OPINION

BJORGEN, A.C.J. — 

### Zachary Crawford appeals his conviction for methamphetamine 

### possession, claiming that (1) the State and thetrial court deprived him ofhis right to a
unanimous

### jury verdict, (2) the prosecutor committed misconduct, (3) the State improperly 

### introduced opinion about his guilt, (4) the State presented insufficient evidence to convict him because our court should require proofthat he possessed a minimum quantity of a controlled substance, and (5) he received ineffective assistance of counsel. We affirm. FACTS 

### Late one evening in September 2012, aWashington State Department ofCorrections DOC) officer arrived at Crawford' s 

### doorstep with two 

### City of Vancouver police officers.No. 44285 -0 -I1

Crawford was under DOC supervision for a prior sex offense and neighbors had apparently 

### lodged complaints, requiring a home visit.' The officers asked Crawford which bedroom in the residence belonged to him, and Crawford directed them to a room he shared with a roommate. Crawford identified the areas of the room under his control, which included his bed, a closet, and part of a dresser. The officers 

### searched these areas. In Crawford's bedding the officers found a plastic bag containing a small, yet nonetheless visible, amount ofwhite crystalline substance. The officers suspected the 

### substancewas methamphetamine, a suspicion confirmed by both a field test and a later 

### laboratory analysis bythe Washington State Patrol Crime Lab.

The officers arrested Crawford. After Crawford was given Miranda2 warnings and 

### waived his rights, the officers asked him about the plastic bag. Crawford acknowledged that the 

## bag belonged to him and statedthat ithad contained $20 worth ofmethamphetamine thathe had purchased the day before.

The State charged Crawford with possession of a controlled substance " on or about September 5, 2012," 

### the daythe officers seized the methamphetamine from his room. Clerk's Papers (CP) at 1. 

### At Crawford' strial,the State introduced testimony about the discovery ofthe methamphetamine in Crawford' s bed. The State also introduced testimony about the statements 

### Crawford made after waiving his Miranda rights. In addition,the State asked one ofthe officers

The parties did not discuss the reason forthe visit in front ofthejury to avoid prejudicing Crawford. 

### 2 Miranda v.Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 ( 1966). 2No. 44285 -0 -II



### to testify about his experience with what constituted a usable amount ofthe drug. The officer responded, Well, it -- for different people, it' s a different amount. For someone who has a large habit, it could be different from someone who has a smaller habit. Someone who has a lot of money, a use sm -- 

### a user amount is probably a lot more than someone who doesn' t have much money at all. They obviously use a smaller amount. 

### In the years of my experience, I've noted speaking to people 

### while under cover and also in uniform, the one thing that I do get from users is that ifthey' re willing to 

### keep it and possess it, then it' s a useable amount. If,for someone who - someone -- 

### if it wasn't enough for them, they wouldn't keep it 

### around at the risk of getting in trouble or arrested, especially if they're on probation or parole. And that's basicallywhat I go offoffor user amount. Verbatim Report of Proceedings (VRP) (Nov. 26, 2012) at 59 -60. Crawford testified that he had unwittingly possessed the methamphetamine the police 

### found, although he admitted that he bought the methamphetamine the day before the police searched his house. Crawford claimed that he thought that he had smoked all the substance in 

### the bag,that he had simplyfailed to throwthe bag awaywhen finished with it,and had forgotten that he still had the bag. Crawford proposed an unwitting possessionjury instruction,which the trial court gave. 

### During closing argument the State made clearthat Crawford' s prosecution arose out of the possession ofthe methamphetamine the police found in Crawford' s room at the time ofthe search, stating that:

I have to prove the elements to you beyond a reasonable doubt and that' s — that' s what I' ve done. On or about September 5th, 2012, here in Clark County, Washington, the Defendant possessed a controlled substance. We know it was around September 5th. The officers came to his house on that date around midnight, September 5th / September 6th.... We know it was the Defendant. He was — he was there and the officers identified him. . . . We know it was methamphetamine, that substance recovered from his — from his bed.

3No. 44285 -0 -II

VRP (Nov. 26, 2012) at 105 -06. The prosecutor also addressed Crawford' s claim of unwitting possession, arguing,

So, the element that' s left, the issue that' s left is possession. Did the Defendant possess it? Well, it was found in his bedroom, it was found in his bed. As -- as he admitted to the officers, " That' s my room, that' s my bed." When they found it, when Officer Gutierrez confronted him with it, he said, " Yeah, that's my methamphetamine." He even admitted where he got it. He bought it a couple days ago for $20. 00. " That' s mine."

The Defense wants to say unwitting possession because he -- he says he didn' t realize he still had some there. Well, that' s not unwitting possession. 

### That's sort of like saying you didn't realize there were still some drops left in your Pepsi can and when you pour it out, that' s still Pepsi. Well, if you pour that out, that' s still methamphetamine. And he knew it was there, he knew where he got it, he used it, he knew exactly what it was. That' s possession of a controlled 

### substance. That's why I'm asking you to convict. The State has proven it beyond a reasonable doubt. 

### I am now asking you to do your civic duty and convict this Defendant. Thank you. VRP (Nov. 26, 2012) at 106 -07. The prosecutor later returned to Crawford' s unwitting possession defense in rebuttal, stating,

It' s not a discarded item. It's an item that he left in his bed after smoking and what did —

### what he testified to, after he purchased that bag, he had smoked some of it in his bedroom and then he left it there. It kind of boils down to this: he admitted he bought meth, he tells the police the location where it's found is — is his room.... And when confronted 

### by Officer Gutirrez, he didn' t say, " I thought that was all gone, I didn' t realize anything was left." He said, " Yeah, that' s mine. I bought it at —I bought it a day ago." VRP (Nov. 26, 2012) at 110 -11. 

### Thejury returned averdict ofguilty, and Crawford timely appeals. ANALYSIS Crawford contends that (1) the evidence about multiple acts of methamphetamine

4No. 44285 -0 -II

possession deprived him ofa unanimousjury verdict, (2) the prosecutor committed misconduct 

### by misstating the lawofunwitting possession and its burden ofproof, ( 3) the officer's testimony about a usable amount ofcontrolled substances constituted impermissible testimony about his guilt, (

### 4) the State failed to show he possessed a usable amount ofdrug, and (5) his trial counsel 

### rendered ineffective assistance. We find no merit in any ofCrawford's claims and affirm. I. JURY UNANIMITY 

### Crawford first argues thatthe State violated his rightto a unanimousjury verdict. He contends that the evidence indicated he possessed methamphetamine on two different occasions 

### andthatthejurycould have returned averdict ofguiltybased on eitherofthese instances, depriving him ofaunanimous verdict on a criminal act. Because Crawford alleges a constitutional violation,we review his claim de novo. State v. Dobbs, 180 Wn.2d 1,-, 10, 320 P. 3d 705 ( 2014). We disagree that the evidence at trial involved discrete instances ofpossession and therefore reject Crawford' s argument. Washington' s constitution requires thejury to unanimously agree to a guilty verdict. State v. Smith, 159 Wn.2d 778, 783, 154 P. 3d 873 ( 2007); WASH. CONST. art. I, § 21. This 

### requiresthatthejuryagree unanimously on aspecified criminal act. State v. Crane, 116 Wn.2d 315, 324 -

25, 804 P.2d 10 ( 1991), 

### overruled on other grounds in Pers. Restraint ofAndress, 147 Wn.2d 602, 56 P. 3d 981 ( 2002). Accordingly, w]hen the prosecution presents evidence of multiple acts of like misconduct, any one of which could form the basis of a count charged, either the State must elect which of such acts is relied upon for a conviction or the court must instruct the juryto agree on a specific criminal act. State v. Coleman, 159 Wn.2d 509, 511, 150 P. 3d 1126 (2007).

5No. 44285 -0 -II The law distinguishes between a single, continuing offense and "' several distinct acts' 

### each ofwhich could be the basis ofa criminal charge" for purposes ofjury unanimity. Crane, 116 Wn.2d at 326 ( quoting State v. Petrich, 101 Wn.2d 566, 571, 683 P.2d 173 ( 1984) ( internal quotation marks omitted). 

### When considering a continuous course ofconduct, ajury need not 

### unanimously agree on any particular criminal act or incident so long as itunanimously agrees the course ofconduct occurred. Crane, 116 Wn.2d at 330. We examine a variety offactors " in a commonsense manner" to determine ifthe State alleges multiple distinct acts or a single course
of conduct. State v. Hadran, 113 Wn.2d 11, 17, 775 P.2d 453 ( 1989); State v. Love, 80 Wn. App. 357, 361, 908 P. 2d 395 ( 1996). These factors include whether the charges involved different times, places, materials, types of possession ( actual or constructive), and whether the defendant engaged in the acts with a single purpose. Hadran, 113 Wn.2d at 17; Love, 80 Wn. 

### App.at 361; State v. King,75 Wn.App. 899, 903, 878 P.2d 466 ( 1994). The evidence at Crawford' s trial did not implicate his right to a unanimous verdict. 

### Crawford admitted thathe purchased the bag containing the methamphetamine, brought itto his room, smoked some ofthe methamphetamine, and left the remainder there until the police seized 

### the bag. Crawford possessed the same methamphetamine in the same container in the same place over the course oftwo days so that he could have methamphetamine for his own personal 

### use. Crawford thus admitted to a single, continuous, and unbroken instance ofpossession. This continual methamphetamine possession can sustain a single charge. See Love, 80 Wn. App. at 362 (two acts ofpossession considered continuous course of conduct when possession served the single objective to make money trafficking narcotics). 

### A separate unanimity instruction was not required. 6No. 44285 -0 -II II. PROSECUTORIAL MISCONDUCT 

### Crawford next contends that the prosecutor committed misconduct by arguing that 

### Crawford had knowingly possessed the methamphetamine found in his room and by suggesting 

### thatthejury should disregard the date and time element ofthe charging document. We find no
misconduct. A criminal defendant has a constitutional right to a fair and impartial trial. State v. Davenport, 100 Wn.2d 757, 762, 675 P. 2d 1213 ( 1984). 

### A prosecutor may deprive a defendant 

### ofthis right by engaging in misconduct. Davenport, 100 Wn.2d at762. To demonstrate prosecutorial misconduct, a defendant must show that the prosecutor' s conduct was improper
and prejudicial. State v. Emery, 174 Wn.2d 741, 756, 278 P. 3d 653 ( 2012). Where the defendant fails to object to the alleged improper conduct at trial, he or she waives any claim of 

### misconduct unless the impropriety was flagrant and ill-intentioned such that a curative 

### instruction would not have obviated any prejudice from the misconduct. Emery, 174 Wn.2d at 760 - 61.

### We determine whether a prosecutor has made improper argument by examining the total 

### context ofthe trial,the issues in the case, the evidence, and thejury instructions. State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P. 3d 432 (2003). A prosecutor makes improper argument by 

### mischaracterizing the law in general orthe law ofthe case as stated inthejury instructions. State

v. Walker, 164 Wn.App. 724, 736, 265 P. 3d 191 ( 2011). However, we give prosecutors " wide 

### latitude" in making arguments, and aprosecutor may permissibly draw reasonable inferences from the record. State v. Thorgerson, 172 Wn.2d 438, 453, 258,P.3d 43 ( 2011).

7No. 44285 -0 -II Crawford alleges the first instance of improper argument occurred when the prosecutor
misstated the law of ... 

### unwitting possession" by arguing that Crawford knew he possessed methamphetamine because he had acknowledged purchasing the substance the daybefore. Br.
of Appellant at 11. Specifically, Crawford contends this argument ran contraryto the trial 

### court' s instruction on unwitting possession and the general law ofunwitting possession, which allows the defense when a defendant does not know he or she has a controlled substance or does

not understand the nature of a substance he or she acknowledges having. City ofKennewickv. Day, 142 Wn.2d 1, 10 -11, 11 P. 3d 304 (2000). The prosecutor made the argument specifically to 

### rebut one ofthe elements ofunwitting possession, that Crawford did not understand the nature of 

### the substance in his possession. The prosecutor' s argument simply noted that Crawford had 

### admitted to purchasing the methamphetamine and asked thejury to inferthat Crawford could not 

### reasonably believe that his failure to promptly smoke all ofit somehowtransformed the remainder into a substance he could legally possess. The prosecutor addressed the other prong of 

## the unwitting possession defense with adifferentportion ofhis argument. Viewed inthe context ofthe total argument and the issues in this case, the prosecutor was responding to Crawford's 

### defense using permissible inferences from the record. Crawford also alleges thatthe prosecutor improperly argued that thejury could convict 

### him without finding an essential element ofthe crime, namelythe date ofpossession. Thetoconvict instruction incorporated the date of Crawford' s possession, on or about September 5, 

### 2012. The State, therefore, bore the burden ofproving that Crawford possessed

8No. 44285 -0 -II

methamphetamine on or about that date beyond a reasonable doubt. State v. Hickman, 135 Wn.2d 97, 105, 954 P. 2d 900 ( 1998) (the State bears the burden of proving all elements
articulated injury instructions). 

### The prosecution would have committed misconduct by suggesting it did not have that burden. 

### Walker, 164 Wn.App. at 736. However, the record flatly contradicts Crawford's contention. The prosecutor explicitly acknowledged thatthe State needed to prove Crawford possessed the methamphetamine on or about September 5, 2012, and then argued that it had done so. The prosecutor did not misstate the law and did not commit
misconduct. III. OPINION TESTIMONY 

### Crawford also alleges thatthe State improperly introduced opinion testimony about his guilt from one ofthe testifying officers. We decline to reach the merits ofCrawford's claim because he did not raise it in the trial court. 

### Normally we do not review claims oferror raised forthe first time on appeal, and Crawford did not object to the allegedly objectionable testimony at trial. RAP 2. 5( a); State v. Montgomery, 163 Wn.2d 577, 595 -96, 183 P. 3d 267 (2008) (

### quoting State v. Kirkman, 159 Wn.2d 918, 937, 155 P. 3d 125 ( 2007)). A limited exception to this general rule exists for
manifest error[ s] affecting a constitutional right." RAP 2. 5( a)(3). While impermissible opinion 

### testimony may infringe on a defendant's constitutional right to ajurytrial,the admission of 

### improper opinion testimony is not manifestwithin the meaning ofRAP 2.5( a)(3) ifthe trial court properly instructs thejury that they "' are the solejudges ofthe credibility ofwitnesses, and .. .

9No. 44285 -0 -II

are not bound by expert witness opinions." 

### Montgomery, 163 Wn.2d at 595 -96, 183 ( quoting Kirkman, 159 Wn.2d at 937) ( internal quotation marks omitted); State v. Curtiss, 161 Wn.App. 673, 697, 250 P. 3d 496 ( 2011). The court gave those instructions to Crawford' sjury, and he 

### makes no showing to overcome the presumption that thejurors followed them. Kirkman, 159 Wn.2d at 937; Curtiss, 161 Wn.App. at 697 (citing Montgomery, 163 Wn.2d at 596). Under RAP 2. 5( a), Crawford does not have a right to claim this error for the first time on appeal. IV. SUFFICIENCY Crawford next contends that we should impose a common law element requiring the 

### State to prove that he possessed a usable amount ofcontraband. He contends that the State failed to do so here and thatwe should therefore order the trial court to reverse his conviction and dismiss the charge with prejudice. We decline to consider Crawford' s plea to add a common law requirement of usability to 

### possessory offenses, because we do not consider inadequately briefed arguments. RAP 10. 3( a)( 6); Fishburn v. Pierce County Planning & 

### LandServs. Dep't, 161 Wn.App. 452, 473, 250 P. 3d 146 (2011). 

### Crawford appears to identity two reasons for adopting some kind of minimal amount element, but does not adequately briefeither. First, Crawford cites, extensively, the existence ofsuch elements in the possessory offenses ofWashington' s sister states. 

### Crawford provides no reasoned argument as to whythe mere existence ofthose elements in sisterjurisdictions should compel our court to impose a similar one in this case. Washington' s legislature has made a policy choice, and we cannot overrule the people' s representatives simply 

### because legislatures in sisterjurisdictions have made a different one. See State v. Malone, 72 Wn. App. 429, 439 n. 12, 864 P.2d 990 ( 1994) (

### holding that there is no minimum amount
10No. 44285 -0 -II

requirement for possession, in part because " it is within the province ofthe Legislature to decide 

### whether possession ofa minute quantity ofa controlled substance should be punished underthe statute. ") 

### Second, Crawford offers policy reasons for requiring a minimum amount ofa controlled substance. He claims thatthe cost and expense ofprosecuting and incarcerating those convicted 

### ofpossessing small amounts ofcontrolled substances necessitates aminimal amount element in possession crimes. Crawford, however, offers no evidence that would allow us to make a decision based on these considerations, such as the number of such prosecutions or the actual 

### expenses involved. Assuming that such apolicy choice is within our authority, Crawford has not supplied the basis on which we could make it.3

3 Even ifwe were to address this claim on the merits, Division One ofour court rejected essentially the same argument in Malone, 72 Wn.App. at 438 - 39. Malone " cite[d] ... out -ofstate case law," just as Crawford does and " ask[ ed] [ Division One] to read into the statute a requirement that, to be charged with possession, there must be a measurable or usable amount 

### of" a controlled substance,just as Crawford asks our court to do. Malone, 72 Wn.App. at 438. Division One rejected Malone' s argument as incompatible with Washington law after noting that 

### the statutes defining the crime ofpossession in Washington do not make the amountthe defendant possessed .

relevant to a conviction and that "possess[ ion] ofany amount can support a conviction." 

### Malone, 72 Wn.App. at 439 (emphasis in original). Crawford notes that the legislature has " authorized thejudiciary to supplement penal 

### statutes with common law,so long asthe court decisions are `not inconsistent with the Constitution and the statutes ofthis state ' and asks our court to exercise that power here. Br. of Appellant at 19 ( quoting RCW 9A.04. 060). 

### In making this argument Crawford misses the import ofMalone, which recognized that the legislature intended to strictly forbid any possession ofa controlled substance. The legislature has signaled its approval ofMalone as it has not 

### amended the possession statutes to add a minimum quantity element in response. In re Custody ofA. F.J.,179 Wn.2d 179, 185 -86, 314 P. 3d 373 ( 2013). 

### Enacting the common law elements Crawford seeks would be inconsistent with the statutes ofthis state. Crawford' s argument, 

### therefore, asks us to make the sort ofpolicy choice reserved to the legislative authority. 11No. 44285 -0 -II Absent a common law minimum quantity element, the State unquestionably presented sufficient evidence to convince a rational trier offact beyond a reasonable doubt that Crawford had possessed methamphetamine, a controlled substance. State v. Mau, 178 Wn.2d 308, 312, 308 P. 3d 629 (2013). Police seized the substance at issue from Crawford' s bed. Multiple tests confirmed the substance is methamphetamine. Crawford himself admitted to purchasing and possessing the methamphetamine. Sufficient evidence supports his conviction.4 V. INEFFECTIVE ASSISTANCE OF COUNSEL 

### Finally, Crawford contends thathe received ineffective assistance ofcounsel because his attorney failed to objectto the officer' s opinion testimony and the prosecutor' s closing arguments. We review these claims de novo and hold that Crawford' s counsel provided 

### effective assistance. State v. Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009). A criminal defendant has the rightto effective assistance by his or her counsel. State v. Grier, 171 Wn.2d 17, 32, 246 P. 3d 1260 (2011). We begin with "`a strong presumption that
counsel' s performance was reasonable. "' 

### Grier, 171 Wn.2d at 33 ( quoting State v. Kyllo, 166 Wn.2d 856, 862, 215 P. 3d 177 (2009)). To overcome this presumption, the defendant must show 

### that counsel performed deficiently and that this deficientperformance prejudiced him or her. Grier, 171 Wn.2d at 32 -

33 ( quoting State v. Thomas, 109 Wn.2d 222, 225 - 26, 743 P.2d 816 1987)). To show deficient performance, the defendant must show "that `there is no conceivable

4 Even ifwe accepted Crawford' s argument, the evidence at trial showed he possessed " a measureable amount." 

### Br. ofAppellant at 24. Officers testified that the bag they found 

### contained avisible quantity ofmethamphetamine, which would make it measureable. Further, Crawford testified that he would have " licked the bag clean" ifhe knew it had methamphetamine in it. VRP ( Nov. 26, 2012) at 83. This indicates Crawford could and would have used the 

### methamphetamine had he laterfound it,providing sufficient evidence to convict him even where a minimal, usable amount is required for a conviction. 12No. 44285 -0 -II

legitimate tactic explaining counsel' s performance. ' 

### Grier, 171 Wn.2d at 33 ( quoting State v. Reichenbach, 153 Wn.2d 126, 130, 101 P. 3d 80 ( 2004)). 

### Demonstrating prejudice requires the defendant to show that ' 

### there is a reasonable probability that, but for counsel' s deficient performance, the outcome ofthe proceedings would have been different. ' Grier, 171 Wn.2d at 

### 34 (quoting Kyllo, 166 Wn.2d at 862). Crawford claims that one ofthe officers expressed an opinion as to Crawford' s guilt by 

### testifying that ifa user is

willing to 

### keep it and possess it, then it' s a usable amount [ I]f it wasn' t 

### enough forthem,theywouldn't keep it around at the risk of getting in trouble .. . especially ifthey're on probation or parole. VRP ( Nov. 26, 2012) at 60; Br. of Appellant at 17. For purposes of this analysis, we assume
without deciding that this testimony improperly expressed an opinion. Crawford' s counsel did

not object to this testimony. 

### Failing to object to the admission of improper evidence can
constitute deficient performance. 

### State v. Hendrickson, 138 Wn. App. 827, 833, 158 P.3d 1257 2007). However, Crawford' s attorney cross - examined the officer about the same subject. 

### Crawford's attorney therefore appears to have decided not to object and instead address the impropriety in other ways. 

### State v. Kloepper, 179 Wn. App. 343, 355 -356, 317 P.3d 1088,
review denied, 180 Wn.2d 1017 ( 2014) ( 

### holding that the decision not to object is generally
considered a legitimate trial tactic to avoid emphasizing damaging evidence). This was a legitimate tactical choice and, as such, cannot serve to show deficient performance. Kloepper, 179 Wn.App. at 355 -56. 

### Similarly, Crawford' s counsel did not object to the prosecutor' s closing statements. A 

### defense attorney's failure to object to impermissible closing argument can constitute deficient
13No. 44285 -0 -II
performance that might prejudice the defendant. See State v. McFarland, 127 Wn.2d 322, 337

n.4, 899 P. 2d 1251 ( 1995). However, as held above, the prosecutor did not commit misconduct,
and Crawford' s attorney had nothing to object to. Further, as with Crawford' s claim of 

### ineffective assistance related to the opinion testimony, his attorney appears to have made a tactical decision to address the prosecutor' s argument during her own closing, where she 

### specifically used the State's comments as a springboard to present hertheory ofthe case. Again, we find no ineffective assistance based on what trial counsel saw as a legitimate trial tactic. CONCLUSION 

### We find no merit in any ofCrawford' s claims and affirm his conviction for possession of methamphetamine. 

### Amajority ofthe panel having determined thatthis opinionwill notbe printed inthe Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it is so ordered.

We concur:

LJ.

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