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UNPUBLISHED OPINION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 for two counts of possession of a

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 of law that evidence of drug residue is insufficient to support convictions for felony

drug possession crimes, and ( 3) the trial court erred in imposing LFOs to a county drug fund and

for attorney fees as part of his sentence. 

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

well - established precedent, residue constitutes a sufficient quantity of drugs 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 of a video 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 if there 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 of heroin 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 of possession of a controlled substance ( heroin

and methamphetamine) on the basis of residue found on the items. 

Laboratory reports confirmed residual amounts of heroin and methamphetamine on the

items Sitton gave the police. The items and laboratory reports were introduced as evidence at

trial; and a forensic chemist from the state crime laboratory testified that the items contained

residual amounts of heroin and methamphetamine. The State produced no other evidence of

heroin or methamphetamine in Sitton' s possession. 

The key issues at trial were whether Sitton possessed the drugs and whether the defense

of unwitting possession applied. During the opening phase of closing argument, the prosecutor

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

dominion and control specifically, describing the latter concept as " the capacity to act, to

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

prosecutor again revisited constructive possession, telling the jury that a defendant is guilty of a

drug possession crime if he " can exercise dominion and control" over the drugs. RP at 180

emphasis added). 

The jury returned guilty verdicts, and Sitton was convicted of felony possession of heroin

and methamphetamine. As part of Sitton' s sentence, the trial court imposed LFOs amounting to

4,200. Sitton did not object to the imposition of the 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 if he " can exercise" dominion and control over the drugs. 

He argues that this statement misstated the law because a person is guilty of possession only if he

actually has dominion and control over the drugs, not if he merely had the opportunity to 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 of the record and the circumstances of the 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 the jury.' " State v. Monday, 171 Wn.2d 667, 675, 257 P. 3d 551 ( 2011) ( internal

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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 of affecting the verdict. State v. 

Emery, 174 Wn.2d 741, 761, 278 P. 3d 653 ( 2012). 1

A prosecutor' s misstatement of the law constitutes misconduct. See State v. Davenport, 

100 Wn.2d 757, 764, 675 P. 2d 1213 ( 1984). Similarly, a prosecutor acts improperly by arguing

to the jury that the applicable law differs from the law stated in the jury instructions. State v. 

Perez - Cervantes, 141 Wn.2d 468, 475, 6 P. 3d 1160 ( 2000). 

Here, the jury 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 of dominion and control is insufficient to establish

constructive possession. 

In deciding whether the 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 whether the defendant had the ability to take actual

possession of the substance, whether the defendant had the capacity to exclude

others from possession of the 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 argument the prosecutor described the doctrine of constructive possession

as follows: 

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

failing to object to 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. 

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P] ossession does not mean ownership and does not mean use.... As long as you

know [the drugs] are there and you can exercise dominion and control, guess what? 

You' re guilty. Even ifyou didn' t intend to use those drugs, hadn' t used those drugs, 

if you know they 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 of the rest ofthe closing argument, it becomes clear that the

prosecutor accurately conveyed the concept of constructive possession to the jury. During the

opening phase of the argument, the prosecutor told the jury: 

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 of those 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 of these 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 of this earlier

description, it becomes clear that he was equating the exercise of dominion and control with

taking actual possession. His description may have been inartful, but it was not a misstatement

of the law. Therefore, we hold that the prosecutor' s argument was not improper, and reject

Sitton' s prosecutorial misconduct claim. 

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45088 -7 -II

B. INSUFFICIENT EVIDENCE

Sitton argues that the State' s evidence should be considered insufficient to sustain his

convictions because the evidence showed only that he possessed a residual quantity of heroin and

methamphetamine. He asks us to recognize a non - statutory element of drug possession crimes

requiring possession of a minimum quantity ofthe drug. We deny Sitton' s request and hold that

sufficient evidence supports his conviction.. 

A criminal defendant challenging the sufficiency of the 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 if any rational trier of fact, viewing the evidence in the light most

favorable to the State, could find the elements of the charged crime beyond a reasonable doubt. 

State v. Owens, 180 Wn.2d 90, 99, 323 P. 3d 1030 ( 2014). 

Sitton argues that we have the authority to designate a minimum amount element of drug

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 may
45088 -7 -II

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

we will not construct any such requirement.2

Sitton also seems to suggest that we 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 of a

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 ability to pay before imposing the LFOs. But Sitton did

not object to the imposition of the LFOs, and we will not address their validity 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. 

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attorney fees as LFOs at sentencing without finding that the defendant has the ability to pay

impermissibly chilled his Sixth Amendment right to counsel. But our Supreme Court has held

that the constitution does not require findings as to the defendant' s ability to pay at the time of

sentencing. State v. Blank, 131 Wn.2d 230, 239 -42, 930 P. 2d 1213 ( 1997). Therefore, we hold

that the 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 of the panel having determined that this 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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