### FILED 

### AUGUST 28, 2014 In the Office ofthe ClerkofCourt W A State Court ofAppeals, Division III
INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISIONTHREE STATE OF WASHINGTON, 

### ) No. 31S06-1-III 

### ) Respondent, ) ) 

### v. ) UNPUBLISHED OPINION ) RICHARD EDWARD FENTON, 

### ) ) Appellant. 

### ) LAWRENCE-BERREY, 

### J.
- Richard Fenton appeals his convictions for unlawful possession ofa controlled substance (methamphetamine) and unlawfulpossession ofa controlled substance (marijuana) with intentto deliver. He contends thetrial court erred inconcluding that he did nothave automatic standing to challenge the vehicle stop ofa thirdparty. He also claims hereceived ineffective assistance ofcounsel when his attorney failedtopropose an unwittingpossession instruction and that instructional error requires reversal ofhis possession ofmethamphetamine conviction. 

### Inhis statementof additional grounds for review (SAG), Mr. Fenton allegespolice didnothave a search warrant for his apartment. Findingnoerror, we affirm.No. 31506-I-III 

### State v. 

### Fenton
FACTS Duringthe evening**ofOcto~er** 5,2011, city ofKennewick detectives Roman Trujillo and Shirrell Veitenheimer were conducting undercover surveillance ofMr. Fenton's apartment. Between 10:00 p.m. and 1:00 a.m., they saw about 8 to 10 people enter and leave Mr. Fenton's apartment. All ofthese people stayed between 5 and 25 minutes. Around midnight, the detectives saw a woman, later identified as Marisa Fuentes, enterMr. Fenton's apartment. She returned to her car within about five minutes and retrieved from the trunk ofher car a grocery sack with unidentified contents aboutthe size ofa football. Shetook the bagto Mr. Fenton's apartment and then left with an empty sack. Detective Trujillo alerted other detectives to the incident and askedthem to stop Ms. Fuentes. Detective Isaac Merkl stopped Ms. Fuentes and questioned her. She admitted that she hadjustdeliveredmarijuana toMr. Fenton's apartment. Based onthis information, detectives obtained a search warrant for Mr. Fenton's apartment. Upon execution ofthe warrant, police found Mr. Fenton in a bedroom. Duringthe search ofMr. Fenton's apartment, police found hydrocodone pills, two pipes with methamphetamine residue, marijuana, and scales. The State chargedMr. Fenton with unlawful possession ofa controlled substance, methamphetamine, and unlawful possession ofmarijuanawith
2No. 31506-I-III State v. Fenton
intentto deliver. Before trial, Mr. Fenton moved to suppress evidence under CrR 3.6, arguing that police lacked probable cause to stop and detain Ms. Fuentes, andthat he had automatic standingto challenge the legality ofthe stop. The State responded that Mr. Fenton lacked standing to challenge the stop against Ms. Fuentes because "the seizure complained of
was not a seizure ofanything over which the defendant might have claimed dominion." Clerk's Papers (CP) at 12. 

### It also pointed outthat ajudgehad recently determined that the police stop and questioning ofMs. Fuentes was proper. The court denied the motion, concluding, "[t]he defendant does nothave automatic standing to complain ofthe seizure ofdrugs possessed illegally within his apartment." CP at 84. In its oral decision, the courtnoted, "I don'tknow that the fruits ofthe search would be considered [Ms. Fuentes's] comments made in an interview given after Miranda[l] warnings." Report ofProceedings (RP) (May 2,2012) at 13. In its written findings, the court found in part: (1) "[t]he application ofthe rule ofautomatic standing is limited to situations where the defendant is aggrieved by a search ofpremises on which he is on legitimately and the seizure ofphysical items on thatpremises," (2) "[i]n this application that would mean the car in whichMs. Fuentes was stopped," and (3) "[s]ince

I Miranda v. Arizona, 384 U.S. 436,86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). 3No. 3IS06-I-III State 

### v. Fenton
automatic standing applies to things arguably possessed by the defendant, automatic standing does not apply in the instant case." CP at 84. After trial, ajury found Mr. Fenton guilty as charged. ANALYSIS Standing. We first address whetherthe trial court erred in concluding that Mr. Fenton did nothave automatic standing to challenge the stop and questioning ofMs. Fuentes. "[R]esolution ofa motion to suppress requires a two-part inquiry: (I) whether a defendant has standing to challenge the police conduct; and (2) whether thepolice conduct is contrary to the constitutional protections and guarantees." 12 ROYCE A. FERGUSON, JR., WASHINGTON PRACTICE: CRIMINAL PRACTICE AND PROCEDURE 

### § 2402, at 533 (3d ed. 2004). We review conclusions oflaw following a suppression hearing de
novo. State v. Mendez, 137 Wn.2d 208,214,970 P.2d 722 (1999). 

### Mr. Fenton argues thathe has automatic standingto raise a violation ofMs. Fuentes's Fourth Amendmentrights becausethe offenses with which he is charged are possessory offenses and he was in possession ofthe contraband at the time ofthe search. He also claims that there was a directrelationship between the stop and the evidence seized from his apartment because Ms. Fuentes's statement formed the basis ofthe search warrant for his apartment. The State responds thatthe automatic standing doctrine does


### 4No. 31506-1-111 

### State v. 

### Fenton

not apply because Mr. Fenton did nothave a possessory or privacy interest in the information Ms. Fuentes provided to law enforcement and the challenged police conduct is not sufficiently related to the contraband found in Mr. Fenton's apartment. Initially, we note the issue ofstanding is moot. An appeal is moot where it presents purely academic issues and where the court cannot provide the relieforiginally sought. 

### IBF, LLCv. Heufi, 141 Wn. App. 624, 630-31,174 PJd 95 (2007) (quoting 

### JosephiniumAssocs. v. 

### Kahli, 111 Wn. App. 617,622,45 P.3d 627 (2002». In an unpublished decision, this court recently heldthat the police had reasonable suspicionto justifY the stop ofMs. Fuentes. 

### State v. 

### Fuentes, noted at 179 Wn. App. 1030,2014WL 

### 546587, review granted, 328 P.3d 904 (2014). Thus, even assuming Mr. Fenton had standing to challenge the stop ofMs. Fuentes, his argument fails regarding the merits of the suppression motion. Despite the fact that the issue ofstanding is moot, we address 

### Mr. Fenton's argument. To assert automatic standing, a defendant (1) must be charged with a possessory offense and (2) be inpossession ofthe subject matter at the time ofthe search or seizure. 

### State v. 

### Jones, 146 Wn.2d 328, 332,45 P.3d 1062 (2002). Additionally, our Supreme Courthas declared that the automatic standing doctrine applies only when the defendant is asserting that his orher own rights wereviolated: "Inherent in the conditions for


### 5No. 31506-1-III State 

### v. Fenton
automatic standing is the principle that the 'fruits ofthe search' bear a direct relationship to the search the defendant seeks to contest." State v. Williams, 142 Wn.2d 17,23, 11 P.3d 714 (2000). Williams is instructive here. In that case, police officers went to the door ofan apartment where they expected to find Harlan Williams, who had an outstandingwarrant for his arrest. The apartment's tenant opened the door andtold the officers they could look inside for Mr. Wil1iams, who was an overnight guest. They found Mr. Williams and arrested him. In a search incidentto arrest, officers found heroin in Mr. Williams's pocket. The superior court concluded Mr. Williams had automatic standing to assert the tenant's privacy interests. Id. at 19-20. On appeal, the Supreme Courtheld automatic standing did not apply. The court stated that while Mr. Williams had standing to challenge the search ofhis person, he lacked standing to challenge the police entry into a third party's apartment to serve an arrest warrant on him. Id. at 23. The court emphasized that "[a]utomatic standing is not a vehicle to collaterally attack every police search that results in a seizure ofcontraband or evidence ofa crime." Id. The court explained that the purpose ofthe automatic standing rule is to protect defendants forced to choose between theirrespective rights underthe Fourth and Fifth
6No. 31506-1-II1 State 

### v. Fenton
Amendments: We cannot agree that the automatic standing rule as originally conceived by the Supreme Court would have any application where there is no conflict in the exercise ofhis Fourth and Fifth Amendment rights. Moreover, as expressed
... in Simpson, the automatic standing rule may not be used where the defendant is not faced with "the risk that statements made at the suppression hearing will later be used to incriminate him." Id. (quotingState v. Simpson, 95 Wn.2d 170,180,622 P.2d 1199 (1980)). Applying these criteria, Mr. Fenton lacks standing to challenge the stop ofMs. Fuentes. Although the crimes at issue are possessory offenses, the nexus bet\yeen the challenged police conduct and the evidence recovered from Mr. Fenton's apartment is too indirect to give Mr. Fenton standing to raise a Fourth Amendment challenge to the stop and questioning ofMs. Fuentes. 

### Mr. Fenton was notpresent during the stop and no physical items or contraband related to 

### Mr. Fenton were removed from Ms. Fuentes's car. Because he was not present at the stop, Mr. Fenton would not be able to give any relevant statements in relation to the stop and would not be placed in the position of having to claim ownership ofcontraband or admit to any criminal conduct. As such, he
was not faced with the constitutional dilemma ofmaking statements at a suppression hearing that could later be used to incriminate him. Id. Ultimately, 

### Mr. Fenton's possession ofcontraband was wholly unrelated to whetherpolice lawfully stoppedMs. Fuentes. Given this fact, the court did not err in concluding that he lacked standing to 7No. 31506-1-II1 

### State v. 

### Fenton collaterally attackthe stop and the questioning ofMs. Fuentes. The court did not err in concluding thatMr. Fenton lacked standingto collaterally attack the stop ofMs. Fuentes. 

### Instruction-Comment on the Evidence. Mr. Fenton next argues thatjury instruction 8 constituted an improper comment on the evidence. He claims that "[b]y instructing thejury that residue was possession, the court commented on the evidence by taking away from thejurythe disputed fact ofwhether

### Mr. Fenton possessed methamphetamine thereby relieving the State ofthe burden ofproving that fact." Br. of Appellant at 20. We review the court's choice of jury instructions for an abuse ofdiscretion. 

### State
v. 

### Lucky, 128 Wn.2d 727, 731, 912 P.2d483 (1996), 

### overruledon othergrounds by State
v. 

### Berlin, 133 Wn.2d 541, 947 P.2d 700 (1997). We, however, review claims oflegal error, including whetherthe instruction amounts to a comment on the evidence, de novo. 

### State v. 

### Levy, 156 Wn.2d 709, 721, 132 P.3d 1076 (2006). Each instruction is considered in the context ofthe "instructions as a whole" rather than in isolation. 

### State v. 

### Benn, 120 Wn.2d 631, 654-55,845 P.2d 289 (1993). Under article IV, section 16 ofthe Washington Constitution,judges may not comment to thejuryon matters offact. 

### State v. 

### Dewey, 93 Wn. App. 50, 58-59,966 P.2d


### 8No. 31506-1-111 State 

### v. Fenton
414 (1998). "Thus, thejudgemay not convey tothejuryhis or her opinion concerning the testimony." Id. at 59. Ifthe court expresses its personal feelings on an element ofan offense, it is a violation to do so even ifthe court's feelings are only implied. State v. Jacobsen, 78 Wn.2d 491,495,477 P.2d 1 (1970). Whether ajudge has expressed his or her opinion turns on whether thejudge's feeling as to "the truth value ofthe testimony of
a witness has been communicated to thejury." State v. Lane, 125 Wn.2d 825, 838, 889 P.2d 929 (1995). "Thepurpose ofprohibitingjudicial comments onthe evidence is to prevent thejury from being influenced by the trialjudge's opinion ofthe evidence submitted." State v. Hansen, 46 Wn. App. 292, 300, 730 P.2d 706, 737 P.2d 670 (1986). The instruction at issue stated: "It is a crime to possess any amount ofcontrolled substance no matterhow small." CP at 56 (instruction 8). The court gave the instruction at the request ofthe State after defense counsel questioned a forensic witness about the amount ofresidue in one ofthe pipes: 

### Q [Defense Counsel]: Miss Ricci, going backto ItemNo.3, the glass smoking device, you indicated that it had a residue. What does that mean?A [Andrea Ricci]: A residue is basically any amount ofmaterial that's either too difficultto remove from something or it is something that is not a weighable amount. 

### Q [Defense Counsel]: So you're referring to a very small amount of drugs? RP (June 18 & 19,2012) at 150. 9No. 31506-1-111 State 

### v. Fenton
The State objected to the line ofquestioning, arguing "[c]ounsel is attempting to minimizethis, YourHonor. As the Courtknows, it doesn't matter how small the amount is." RP (June 18 & 19, 2012) at 150. The State is correct. "There is no minimum amount ofnarcotic drug which must be possessed in orderto sustain a conviction" for unlawful possession ofa controlled substance. State v. Williams, 62 Wn. App. 748, 751, 815 P.2d 825 (1991); see also State
v. Larkins, 79 Wn.2d 392,394,486 P.2d 95 (1971) ("Althoughthe legislature had the powerto do so, itprovided no minimum amount ofa narcotic drug, possession ofwhich would sustain a conviction."). Thus, the instruction was an accurate statement ofthe law. Moreover, the court did not expressly or impliedly indicate that it assumed Mr. Fentonpossessed the methamphetamine. Asjustnoted, it gave the instruction because the defense hadraisedthe issue ofthe amount ofnarcotics necessary for possession. This
was entirelyproper in order to make clearto thejury "therelevant legal standard." State


### v. Corn, 95 Wn. App. 41, 53, 975 P.2d 520 (1999). The instruction did not indicate the judge's opinion onthe likelihood ofpossession. Rather, it explained a potential legal question regarding the amount ofdrug necessary for conviction, without assuming or implyingthe defendant's ownpossession ofthis drug.

10No. 31506-1-111 

### State 

### v. Fenton
Instruction 8 accurately states the law, is relevant to the issues at trial, and does not suggestthe court's opinion on the case. We, therefore, reject the claim thatthis instruction constituted an unconstitutional comment on the evidence. 

### EffectiveAssistance of Counsel. Mr. Fenton next argues that we must reverse his conviction for unlawful possession ofmethamphetamine because his trial counsel rendered ineffective assistance in failing to request an unwitting possession instruction. He argues, "[t]here was no tactical reason why defense counsel did not seek an unwitting possession instruction because the defense theory was primarily that Mr. Fenton was not
aware ofthe drugs." Br. ofAppellant at 28. In reviewing an ineffective assistance ofcounsel claim, we start with a strong presumption ofcounsel's effectiveness. 

### State v. 

### McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). To establish ineffective assistance ofcounsel, Mr. Fenton must show both deficientperformance and resulting prejudice. 

### Stricklandv. 

### Washington, 466 U.S. 668,687, 104 S. Ct. 2052,80 L. Ed. 2d 674 (1984); 

### McFarland, 127 Wn.2d at 334-36. Deficientperformance occurs when counsel'sperformance falls below an objective standard ofreasonableness. 

### McFarland, 127 Wn.2d at 334-35. Legitimate trial strategy does not constitute ineffective assistance ofcounsel. 

### State v. 

### Grier, 171 Wn.2d 17, 33, 246 P.3d 1260 (2011) (quoting

### State v. 

### Kyllo, 166 Wn.2d 856, 863,215 P.3d 177 (2009)).


### 11No. 31506-1-II1 

### State v. Fenton Prejudice occurs when there is a reasonable probability that, but for counsel's deficient performance, the outcome ofthe case wouldhave differed. 

### McFarland, 127 Wn.2d at 335. Failure on either prong defeats a claim ofineffective assistance ofcounsel. 

### Strickland, 466 U.S. at 697. "Failureto request an instruction on a potential defense can constitute ineffective assistance ofcounsel." 

### In re Pers. Restraint a/Hubert, 138 Wn. App. 924, 929,158 P.3d 1282 (2007). To prevail on an ineffective assistance ofcounsel claim for failure to propose ajury instruction, Mr. Fenton must showthat (1) had counsel requested the instruction, the trial court likely would have given it, and (2) defense counsel's failure to request the instruction was not a legitimate tactical decision. 

### State V. 

### Powell, 150 Wn. App. 139, 154-55,206 P.3d 703 (2009). To convict Mr. Fenton ofunlawful possession ofa controlled substance, the State had to prove beyond a reasonable doubt that he possessed a controlled substance without
a validprescription orother authorization. RCW 69.50.4013(1). To "ameliorate[] the harshness of[ the] strict liability" nature ofthe crime, a defendant may assert the affirmative defense ofunwittingpossession. 

### State v. Bradshaw, 152 Wn.2d 528, 538,98 P.3d 1190 (2004). Unwitting possessionrequires the defendant toprove by a preponderance ofthe evidence circumstances negating culpability that are "uniquely
12No. 31506-1-III State v. Fenton
within his knowledge and ability to establish." State v. Knapp, 54 Wn. App. 314, 321, 773 P.2d 134 (1989). The patternjury instruction on unwittingpossessionprovides: A person is not guilty ofpossession ofa controlled substance ifthe possession is unwitting. Possession ofa controlled substance is unwitting if a person [did notknow that the substance was in [his][her] possession] [or][did not know the nature ofthe substance]. The burden is on the defendant to prove by a preponderance ofthe evidence that the substance was possessed unwittingly. Preponderance of the evidence means that you must be persuaded, considering all ofthe evidence in the case, that it is more probably true thannottrue. 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 52.01, at 1007 (3d ed. 2008). Contrary to his claim on appeal, Mr. Fenton's defense at trial was general denial, notunwittingpossession. During the opening statement, defense counsel pointed out that two women were present during the search ofMr. Fenton's apartment and asserted, "[t]hese drugs did not belong to my client." RP (June 18 & 19,2012) at 56. During the discussion of jury instructions, defense counsel stated that unwitting possession had "never" been asserted, and asked the State to withdraw its proposedunwitting possession instruction based on Mr. Fenton's general denial defense. The court withdrew the instruction without objection from defense counsel. And during the closing argument, Mr. Fenton again noted the presence ofthe two women in Mr. Fenton's apartment as well 13•



### No. 31S06·1·III State v. 

### Fenton

as apair ofwoman'sjeans found in his living room, arguing "there was ample evidence to show as the defense that there were otherpeople living in that apartment." RP 

### (June 18 & 

### 19,2012) at 174. Moreover, defense counsel's decision not to request an unwitting possession instruction can be deemed a legitimate trial tactic. Usually, carrying the burden ofproof requires the defendant's testimony thathe was not aware ofthe presence ofthe controlled substance. Under thisjustification, only Mr. Fenton could testify to his lack of knowledge ofthe presence ofmethamphetamine in his bedroom. Yet, Mr. Fenton's testifying would openhim to cross-examination by the prosecution. The right to avoid testifying is an important constitutional right. Counsel may have legitimately weighedthe risk oftestifying with the need for an unwitting possession instruction. Mr. Fenton fails to establish that defense counsel'sperformancewas deficient. Accordingly, his ineffective assistance claim fails. Statement of Additional Grounds tor Review. In his pro se SAG, Mr. Fenton contends thatpolice did not have a search warrant when they searched his apartment and that Ms. Fuentes went to his apartment looking for someone otherthan him. These claims involve matters outside the record, McFarland, 127 Wn.2d at 33S, 338 n.S (matters outside the record mustbe raised in a personal restraint petition), and are
14No. 31506-1-II1 State 

### v. Fenton insufficiently argued. AlthoughRAP 10.1 O(c) states thatreference to the record and citation to authorities are notrequired in statements ofadditional grounds for review, the rule also states thatthe appellate court will not considerthe SAG for review if

### itdoes not inform the court ofthe nature and occurrence ofthe alleged errors. Here, Mr. Fenton fails to cite to the record or adequately describe the nature and occurrence ofany alleged errors
as required by RAP lO.lO(c). Accordingly, we are unable to address his claims. We affirm. A majority ofthepanel has determined this opinion will notbeprinted in the Washington Appellate Reports, but it will be filed for public recordpursuantto RCW 2.06.040.

WE CONCUR: Lawrence-Berrey,

Brown, 1.

# ~**C~** Siddoway, C.J. I 

# t9

15