### COURT OF 

### FILAE

## PPEALS 

## 0 / VISION II 2015

### JAN 13 A/

### 111: 15 STATE OF

## WASHINGTON BY IN THE COURT OF APPEALS OF THE STATE OF WAS UN' I'ON

STATE OF WASHINGTON,

v. JEFFREY SITTON, DIVISION II
Respondent,

Appellant. No. 45088 - 7 -11

UNPUBLISHED OPINION

MAXA, J. — 

### Jeffrey Sitton appeals his convictions fortwo counts ofpossession ofa controlled substance (heroin and methamphetamine) and the trial court' s imposition of legal financial obligations (LFOs). He argues that (1) the prosecutor engaged in misconduct by 

### misstating the law regarding constructive possession during closing argument, (2) we should find as a matter oflawthat evidence ofdrug residue is insufficientto support convictions forfelony 

### drug possession crimes, and (3) the trial court erred in imposing LFOs to a county drug fund and for attorney fees as part ofhis sentence.

We hold that the prosecutor did not commit prosecutorial misconduct and that under 

### well - established precedent, residue constitutes a sufficient quantity ofdrugs to support a conviction for possession. Because Sitton did not object to the imposition of LFOs below, we decline to review that issue. Accordingly, we affirm Sitton' s convictions and sentence.45088 - 7 -I1 FACTS Sitton lived in a garage apartment in Centralia: He was an admitted heroin addict with whom the Centralia police were familiar. In August 2012, police officers came to Sitton' s apartment to investigate the theft ofavideo game console. The officers spoke with Sitton, who 

### was not a suspect in that crime, apparently based on a suspicion that money from the sale ofthe stolen console had been used to purchase drugs at his apartment. 

### An officer asked Sitton ifthere were drug paraphernalia in the apartment. Sitton said there might be and offered to collect them and give them to the officer. Sitton entered the 

### apartment and later returned with a pipe and a small wooden box containing items associated with heroin use. The items were covered in what appeared to be the residue ofheroin and methamphetamine. He gave the box and the items inside to the police, and the police left. Sitton was later arrested and charged with two counts ofpossession ofa controlled substance (heroin and methamphetamine) on the basis of residue found on the items. 

### Laboratory reports confirmed residual amounts ofheroin and methamphetamine on the 

### items Sitton gave the police. The items and laboratory reports were introduced as evidence at trial; and aforensic chemistfrom the state crime laboratory testified thatthe items contained residual amounts ofheroin and methamphetamine. The State produced no other evidence of heroin or methamphetamine in Sitton' s possession. 

### The key issues attrial were whether Sitton possessed the drugs and whetherthe defense ofunwitting possession applied. During the opening phase ofclosing argument, the prosecutor 

### tried to describe to thejurythe doctrine of constructive possession generally, and the concept of 

### dominion and control specifically, describing the latter concept as " the capacity to act,to 245088 - 7 -I1

exercise control over something." Report of Proceedings (RP) at 172. During rebuttal, the 

### prosecutor again revisited constructive possession, telling thejury that adefendant is guilty ofa 

### drug possession crime ifhe "can exercise dominion and control" overthe drugs. RP at 180 emphasis added). 

### Thejury returned guilty verdicts, and Sitton was convicted offelony possession ofheroin and methamphetamine. As part ofSitton' s sentence, the trial court imposed LFOs amounting to 4,200. Sitton did not object to the imposition ofthe LFOs. ANALYSIS A. PROSECUTORIAL MISCONDUCT 

### Sitton argues that the prosecutor engaged in misconduct by arguing that Sitton could be found guilty on the possession charges ifhe " can exercise" dominion and control overthe drugs. 

### He argues thatthis statement misstated the law because a person is guilty ofpossession only ifhe 

### actually has dominion and control overthe drugs, not ifhemerely hadthe opportunityto gain dominion and control. We disagree that the prosecutor' s argument was improper when viewed in context. To prevail on a claim of prosecutorial misconduct, a defendant must show that in the context ofthe record and the circumstances ofthe trial, the prosecutor' s conduct was both improper and prejudicial. State v. Thorgerson, 172 Wn.2d 438, 442, 258 P. 3d 43 ( 2011). We 

### examine the prosecutor's conduct and whether prejudice resulted therefrom "by examining that
conduct in the full trial context, 

### including the evidence presented, ` the context of the total argument, the issues in the case, the evidence addressed in the argument, and the instructions given to thejury.' " State v. Monday, 171 Wn.2d 667, 675, 257 P. 3d 551 ( 2011) ( internal 345088 - 7 -I1

quotation marks omitted) (

### quoting State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006)). Misconduct is prejudicial ifit had a substantial likelihood ofaffecting the verdict. State v. 

## Emery, 174 Wn.2d 741, 761, 278 P.3d 653 (2012).1 A prosecutor' s misstatement ofthe law constitutes misconduct. See State v. Davenport, 100 Wn.2d 757, 764, 675 P. 2d 1213 ( 1984). 

### Similarly, aprosecutor acts improperly by arguing 

### to thejurythat the applicable law differs from the law stated in thejury instructions. State v. Perez - Cervantes, 141 Wn.2d 468, 475, 6 P.3d 1160 (2000). 

### Here, thejury instructions accurately described constructive possession as follows: Constructive possession occurs when there is no actual physical possession but there is dominion and control over the substance. 

### Proximity alone without proof ofdominion and control is insufficient to establish constructive possession. 

### In deciding whetherthe defendant had dominion and control over a substance, you are to consider all the relevant circumstances in the case. Factors that you may 

### consider, among others, include whetherthe defendant hadthe abilityto take actual possession of the substance, whether the defendant had the capacity to exclude others from possession ofthe substance, and whether the defendant had dominion and control over the premises where the substance was located. Clerk' s Papers at 18 ( emphasis added); see also State v. Davis, 176 Wn. App. 849, 862, 315 P.3d 1105 ( 2013), review granted, 179 Wn.2d 1014 (2014). 

### During rebuttal argumentthe prosecutor described the doctrine ofconstructive possession as follows:


### 1 Sitton did not object to the prosecutor' s argument at trial. A defendant waives any error by 

### failing to objectto the prosecutor's conduct, unless that conduct was so flagrant and ill - intentioned that an instruction could not have cured the resulting prejudice. Emery, 174 Wn.2d at 760 - 61. Because we hold that the prosecutor' s argument was not improper, we need not address waiver. 445088 - 7 -II P] ossession does not mean ownership and does not mean use.... 

### As long as you know [the drugs] are there andyou can exercise dominion and control, guess what? 

### You're guilty. Even ifyou didn't intendto usethose drugs, hadn'tusedthose drugs, 

### ifyou knowthey are there and you know what they are, you are guilty as long as you can exercise dominion and control. RP at 181 ( emphasis added). 

### However, in the context ofthe rest ofthe closing argument, it becomes clear thatthe 

### prosecutor accurately conveyed the concept ofconstructive possession to thejury. During the 

### opening phase ofthe argument,the prosecutor told thejury: Constructive possession occurs when there' s no actual possession, but there' s dominion and control over the substance. It means that the item is not in the 

### person' s hands but they have dominion and control over it. Dominion and control: What does that mean ?. . . You have contents in your refrigerator in your house. You live there with your significant other. Because you 

### both know there are certain items in the fridge, say a couple of cans of beer, you can be said to be both in constructive possession ofthose items at the same time. 

### You can both go to the fridge. You can both [open] up the refrigerator door. You can both take actual possession ofthese beers inside. RP at 169. He then further clarified that dominion and control is " the capacity to act, to
exercise control over something." RP at 172. This description ofthe doctrine is consistent
with the

### jury instructions in the case and accurately states the law. See Davis, 176 Wn. 

### App. at 862.

When the prosecutor' s later statement is viewed in context as a restatement ofthis earlier 

### description, it becomes clearthat he was equating the exercise ofdominion and control with 

### taking actual possession. His description may have been inartful, but itwas not amisstatement ofthe law. Therefore, we hold that the prosecutor' s argument was not improper, and reject Sitton' s prosecutorial misconduct claim.

545088 - 7 -II
B. INSUFFICIENT EVIDENCE Sitton argues that the State' s evidence should be considered insufficient to sustain his 

### convictions because the evidence showed onlythat he possessed a residual quantity ofheroin and methamphetamine. He asks us to recognize a non - statutory element ofdrug possession crimes 

### requiring possession ofa minimum quantity ofthe drug. We deny Sitton' s request and hold that sufficient evidence supports his conviction.. 

### A criminal defendant challenging the sufficiency ofthe State' s evidence on appeal admits' the truth ofthat evidence, and we draw all reasonable inferences therefrom in the State' s favor. State v. Homan, 181 Wn.2d 102, 106, 330 P. 3d 182 ( 2014). 

### Evidence is legally sufficient to 

### support a guilty verdict ifany rational trier offact, viewing the evidence in the light most favorable to the State, could find the elements ofthe charged crime beyond a reasonable doubt. State v. Owens, 180 Wn.2d 90, 99, 323 P. 3d 1030 ( 2014). 

### Sitton argues thatwe have the authority to designate aminimum amount element ofdrug possession crimes. He states that under RCW 9A.04.060 and State v. Chavez, 163 Wn.2d 262, 180 P. 3d 1250 (2008), we can recognize non - statutory elements of statutory crimes. 

### RCW 9A.04.060 recognizes that the common law supplements all statutory crimes. And in Chavez, our Supreme Court held that "[ t]he legislature can be deemed to have acquiesced in the definition [of common law assault] when it supplemented the criminal code with the common law in 1975." 

### 163 Wn.2d at 274. But drug possession was never a common law crime. As a result, the legislature did not acquiesce in any preexisting definition that might have included a
minimum amount requirement. Because Sitton points to no authority showing that we may45088 - 7 -II 

### supplement criminal statutes with entirely new elements not derived from common law crimes, 

### wewill not constructany such requirement.2 Sitton also seems to suggestthatwe should interpret former RCW 69.50.4013 (2004)3 as including an unstated minimum quantity requirement. But, as we recently noted, "[ i]t is well settled that RCW 69.50.4013 does not require that a defendant possess a minimum amount ofa
controlled substance in order to sustain a conviction." 

### State v. Higgs, 177 Wn. App. 414, 436, 311 P. 3d 1266 ( 2013), review denied, 179 Wn.2d 1024 ( 2014); see also State v. Bennett, 168 Wn.App. 197, 210, 275 P. 3d 1224 (2012). In Higgs, we made it clear that no minimum amount requirement may be harmonized with the statute. 177 Wn. App. at 436 - 37. We therefore reject Sitton' s argument and hold that sufficient evidence supports Sitton' s convictions. C. LEGAL FINANCIAL OBLIGATIONS 

### Sitton argues that the trial court erred by imposing LFOs against him without statutory 

### authority and without inquiring into his abilityto pay before imposing the LFOs. But Sitton did not objectto the imposition ofthe LFOs, and we will not address theirvalidity for the first time

on appeal.

In general, we may decline to review any issue not raised below. RAP 2. 5( a). Sitton argues that we must consider the LFO issue under RAP 2.5( a)( 3) because the trial court 

### committed a manifest error affecting a constitutional right. Specifically, he argues that imposing
2 Sitton argues that because most other states have recognized some minimum quantity requirement, and because such a requirement would be good public policy, we should recognize 

### such a requirement. However, such arguments are properly directed to the legislature, not this court. 3 RCW 69. 50.4013 was amended in 2013. LAws OF 2013, ch. 3, § 20. 745088 - 7 -I1 

### attorneyfees as LFOs at sentencing withoutfinding thatthe defendant has the abilityto pay 

## impermissibly chilled his Sixth Amendment rightto counsel. Butour Supreme Court has held that the constitution does not require findings as to the defendant's abilityto pay at the time of sentencing. State v. Blank, 131 Wn.2d 230, 239 - 42, 930 P.2d 1213 ( 1997). Therefore, we hold 

### thatthe trial court in this case committed no constitutional error. Because Sitton failed to object below, we decline to review the trial court' s imposition of LFOs.

We affirm Sitton' s convictions and sentence. 

### A majority ofthe panel having determined thatthis 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.

We concur:

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