FILED 


AUGUST 28, 2014 


In the Office of the Clerk of Court 


W A State Court of Appeals, Division III 


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 


DIVISION THREE 


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v. ) UNPUBLISHED OPINION 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 of a controlled substance (methamphetamine) and unlawful possession ofa 

controlled substance (marijuana) with intent to deliver. He contends the trial court erred 

in concluding that he did not have automatic standing to challenge the vehicle stop of a 

third party. He also claims he received ineffective assistance of counsel when his 

attorney failed to propose an unwitting possession instruction and that instructional error 

requires reversal ofhis possession ofmethamphetamine conviction. In his statement of 

additional grounds for review (SAG), Mr. Fenton alleges police did not have a search 

warrant for his apartment. Finding no error, we affirm. 
No. 31506-I-III 

State v. Fenton 

FACTS 

During the 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, enter Mr. 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 about the 

size ofa football. She took the bag to Mr. Fenton's apartment and then left with an empty 

sack. Detective Trujillo alerted other detectives to the incident and asked them to stop 

Ms. Fuentes. 

Detective Isaac Merkl stopped Ms. Fuentes and questioned her. She admitted that 

she had just delivered marijuana to Mr. Fenton's apartment. Based on this information, 

detectives obtained a search warrant for Mr. Fenton's apartment. Upon execution ofthe 

warrant, police found Mr. Fenton in a bedroom. During the search of Mr. Fenton's 

apartment, police found hydrocodone pills, two pipes with methamphetamine residue, 

marijuana, and scales. The State charged Mr. Fenton with unlawful possession of a 

controlled substance, methamphetamine, and unlawful possession of marijuana with 

2 

No. 31506-I-III 

State v. Fenton 

intent to 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, and that he had automatic 

standing to 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 of anything over which the defendant might have claimed dominion." 

Clerk's Papers (CP) at 12. It also pointed out that a judge had recently determined that 

the police stop and questioning of Ms. Fuentes was proper. 

The court denied the motion, concluding, "[t]he defendant does not have automatic 

standing to complain ofthe seizure of drugs possessed illegally within his apartment." 

CP at 84. In its oral decision, the court noted, "I don't know that the fruits ofthe search 

would be considered [Ms. Fuentes's] comments made in an interview given after 

Miranda[l] warnings." Report of Proceedings (RP) (May 2,2012) at 13. In its written 

findings, the court found in part: (1) "[t]he application ofthe rule of automatic standing is 

limited to situations where the defendant is aggrieved by a search of premises on which 

he is on legitimately and the seizure ofphysical items on that premises," (2) "[i]n this 

application that would mean the car in which Ms. 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). 

3 

No. 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, a jury found Mr. Fenton guilty as charged. 

ANALYSIS 

Standing. We first address whether the trial court erred in concluding that Mr. 

Fenton did not have automatic standing to challenge the stop and questioning ofMs. 

Fuentes. "[R]esolution of a motion to suppress requires a two-part inquiry: (I) whether a 

defendant has standing to challenge the police conduct; and (2) whether the police 

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 of law following a suppression hearing de 

novo. State v. Mendez, 137 Wn.2d 208,214,970 P.2d 722 (1999). 

Mr. Fenton argues that he has automatic standing to raise a violation ofMs. 

Fuentes's Fourth Amendment rights because the offenses with which he is charged are 

possessory offenses and he was in possession of the contraband at the time ofthe search. 

He also claims that there was a direct relationship between the stop and the evidence 

seized from his apartment because Ms. Fuentes's statement formed the basis of the search 

warrant for his apartment. The State responds that the automatic standing doctrine does 

4 

No. 31506-1-111 

State v. Fenton 

not apply because Mr. Fenton did not have 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 of standing is moot. An appeal is moot where it 

presents purely academic issues and where the court cannot provide the relief originally 

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

Josephinium Assocs. v. Kahli, 111 Wn. App. 617,622,45 P.3d 627 (2002». In an 

unpublished decision, this court recently held that the police had reasonable suspicion to 

justifY the stop of Ms. Fuentes. State v. Fuentes, noted at 179 Wn. App. 1030,2014 WL 

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 in possession 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 

Court has declared that the automatic standing doctrine applies only when the defendant 

is asserting that his or her own rights were violated: "Inherent in the conditions for 

5 

No. 31506-1-III 

State v. Fenton 

automatic standing is the principle that the 'fruits of the 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 of an 

apartment where they expected to find Harlan Williams, who had an outstanding warrant 

for his arrest. The apartment's tenant opened the door and told the officers they could 

look inside for Mr. Wil1iams, who was an overnight guest. They found Mr. Williams and 

arrested him. In a search incident to 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 Court held automatic standing did not apply. The court 

stated that while Mr. Williams had standing to challenge the search of his 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 of contraband or 

evidence of a crime." Id. 

The court explained that the purpose ofthe automatic standing rule is to protect 

defendants forced to choose between their respective rights under the Fourth and Fifth 

6 

No. 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. (quoting State 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 not present 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 of contraband 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 of contraband was wholly unrelated to whether police lawfully stopped Ms. 

Fuentes. Given this fact, the court did not err in concluding that he lacked standing to 

7 

No. 31506-1-II1 

State v. Fenton 

collaterally attack the stop and the questioning ofMs. Fuentes. 

The court did not err in concluding that Mr. Fenton lacked standing to collaterally 

attack the stop of Ms. Fuentes. 

Instruction-Comment on the Evidence. Mr. Fenton next argues that jury 

instruction 8 constituted an improper comment on the evidence. He claims that "[b]y 

instructing the jury that residue was possession, the court commented on the evidence by 

taking away from the jury the disputed fact of whether Mr. Fenton possessed 

methamphetamine thereby relieving the State of the burden of proving that fact." Br. of 

Appellant at 20. 

We review the court's choice ofjury instructions for an abuse of discretion. State 

v. Lucky, 128 Wn.2d 727, 731, 912 P.2d 483 (1996), overruled on other grounds by State 

v. Berlin, 133 Wn.2d 541, 947 P.2d 700 (1997). We, however, review claims oflegal 

error, including whether the 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 of the Washington Constitution, judges may not 

comment to the jury on matters of fact. State v. Dewey, 93 Wn. App. 50, 58-59,966 P.2d 

8 

No. 31506-1-111 

State v. Fenton 

414 (1998). "Thus, the judge may not convey to the jury his or her opinion concerning 

the testimony." Id. at 59. If the court expresses its personal feelings on an element of an 

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 the judge's feeling as to "the truth value ofthe testimony of 

a witness has been communicated to the jury." State v. Lane, 125 Wn.2d 825, 838, 889 

P.2d 929 (1995). "The purpose ofprohibiting judicial comments on the evidence is to 

prevent the jury from being influenced by the trial judge'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 of controlled 

substance no matter how 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 of residue in one of the pipes: 

Q [Defense Counsel]: Miss Ricci, going back to Item No.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 of material 

that's either too difficult to 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. 

9 

No. 31506-1-111 

State v. Fenton 

The State objected to the line of questioning, arguing "[c ]ounsel is attempting to 

minimize this, Your Honor. As the Court knows, 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 of narcotic drug which must 

be possessed in order to sustain a conviction" for unlawful possession of a 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) ("Although the legislature had the 

power to do so, it provided no minimum amount of a 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. 

Fenton possessed the methamphetamine. As just noted, it gave the instruction because 

the defense had raised the issue ofthe amount of narcotics necessary for possession. This 

was entirely proper in order to make clear to the jury "the relevant legal standard." State 

v. Corn, 95 Wn. App. 41, 53, 975 P.2d 520 (1999). The instruction did not indicate the 

judge's opinion on the likelihood of possession. Rather, it explained a potential legal 

question regarding the amount of drug necessary for conviction, without assuming or 

implying the defendant's own possession of this drug. 

10 

No. 31506-1-111 

State v. Fenton 

Instruction 8 accurately states the law, is relevant to the issues at trial, and does not 

suggest the court's opinion on the case. We, therefore, reject the claim that this 

instruction constituted an unconstitutional comment on the evidence. 

Effective Assistance ofCounsel. Mr. Fenton next argues that we must reverse his 

conviction for unlawful possession of methamphetamine 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. of Appellant at 28. 

In reviewing an ineffective assistance of counsel claim, we start with a strong 

presumption of counsel's effectiveness. State v. McFarland, 127 Wn.2d 322, 335, 899 

P.2d 1251 (1995). To establish ineffective assistance of counsel, Mr. Fenton must show 

both deficient performance and resulting prejudice. Strickland v. Washington, 466 U.S. 

668,687, 104 S. Ct. 2052,80 L. Ed. 2d 674 (1984); McFarland, 127 Wn.2d at 334-36. 

Deficient performance occurs when counsel's performance falls below an objective 

standard of reasonableness. McFarland, 127 Wn.2d at 334-35. Legitimate trial strategy 

does not constitute ineffective assistance of counsel. 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)). 

11 

No. 31506-1-II1 

State v. Fenton 

Prejudice occurs when there is a reasonable probability that, but for counsel's deficient 

performance, the outcome of the case would have differed. McFarland, 127 Wn.2d at 

335. Failure on either prong defeats a claim of ineffective assistance of counsel. 

Strickland, 466 U.S. at 697. 

"Failure to request an instruction on a potential defense can constitute ineffective 

assistance of counsel." In re Pers. Restraint a/Hubert, 138 Wn. App. 924, 929,158 P.3d 

1282 (2007). To prevail on an ineffective assistance of counsel claim for failure to 

propose a jury instruction, Mr. Fenton must show that (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 of unlawful possession of a controlled substance, the State 

had to prove beyond a reasonable doubt that he possessed a controlled substance without 

a valid prescription or other authorization. RCW 69.50.4013(1). To "ameliorate[] the 

harshness of [ the] strict liability" nature of the crime, a defendant may assert the 

affirmative defense of unwitting possession. State v. Bradshaw, 152 Wn.2d 528, 538,98 

P.3d 1190 (2004). Unwitting possession requires the defendant to prove by a 

preponderance of the evidence circumstances negating culpability that are "uniquely 

12 

No. 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 pattern jury instruction on unwitting possession provides: 

A person is not guilty of possession of a controlled substance if the 

possession is unwitting. Possession of a controlled substance is unwitting if 

a person [did not know that the substance was in [his][her] possession] 

[ or] [did not know the nature of the substance]. 

The burden is on the defendant to prove by a preponderance of the 

evidence that the substance was possessed unwittingly. Preponderance of 

the evidence means that you must be persuaded, considering all of the 

evidence in the case, that it is more probably true than not true. 

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, 

not unwitting possession. During the opening statement, defense counsel pointed out that 

two women were present during the search of Mr. Fenton's apartment and asserted, 

"[t]hese drugs did not belong to my client." RP (June 18 & 19,2012) at 56. During the 

discussion ofjury instructions, defense counsel stated that unwitting possession had 

"never" been asserted, and asked the State to withdraw its proposed unwitting 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 of the two women in Mr. Fenton's apartment as well 

13 

• 

No. 31S06·1·III 

State v. Fenton 

as a pair ofwoman's jeans found in his living room, arguing "there was ample evidence 

to show as the defense that there were other people 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 of proof 

requires the defendant's testimony that he was not aware ofthe presence ofthe controlled 

substance. Under this justification, only Mr. Fenton could testify to his lack of 

knowledge ofthe presence of methamphetamine in his bedroom. Yet, Mr. Fenton's 

testifying would open him to cross-examination by the prosecution. The right to avoid 

testifying is an important constitutional right. Counsel may have legitimately weighed the 

risk of testifying with the need for an unwitting possession instruction. Mr. Fenton fails 

to establish that defense counsel's performance was deficient. Accordingly, his 

ineffective assistance claim fails. 

Statement ofAdditional Grounds tor Review. In his pro se SAG, Mr. Fenton 

contends that police did not have a search warrant when they searched his apartment and 

that Ms. Fuentes went to his apartment looking for someone other than him. 

These claims involve matters outside the record, McFarland, 127 Wn.2d at 33S, 

338 n.S (matters outside the record must be raised in a personal restraint petition), and are 

14 

No. 31506-1-II1 

State v. Fenton 

insufficiently argued. Although RAP 10.1O(c) states that reference to the record and 

citation to authorities are not required in statements of additional grounds for review, the 

rule also states that the appellate court will not consider the SAG for review if it does not 

inform the court of the nature and occurrence of the alleged errors. Here, Mr. Fenton fails 

to cite to the record or adequately describe the nature and occurrence of any alleged errors 

as required by RAP lO.lO(c). Accordingly, we are unable to address his claims. 

We affirm. 

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. 

WE CONCUR: 

Lawrence-Berrey, 

Brown, 1. Siddoway, ~ C.J. t9 I

C~ 

15