State Of Washington, V. Devon Skye Evans ( 2024 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 85372-4-I
Respondent, DIVISION ONE
v. UNPUBLISHED OPINION
DEVON SKYE EVANS,
Appellant.
FELDMAN, J. — Devon Skye Evans appeals his conviction for possession of
a controlled substance with intent to manufacture or deliver. He argues (a) there
was insufficient evidence to support his conviction, (b) the trial court abused its
discretion when it admitted “untested blue pills” as evidence of guilt, (c) the
prosecutor committed misconduct, and (d) his counsel provided ineffective
assistance. Evans also requests that the case be remanded to the trial court to
strike the Victim Penalty Assessment (VPA) imposed at sentencing. We remand
to the trial court to strike the VPA, but in all other respects we affirm.
I
On November 15, 2022, Lynnwood Police Officer Tanner Hedlund drove to
the apartment complex where Evans resided to apprehend Evans pursuant to a
felony arrest warrant. From his patrol vehicle, Hedlund observed Evans exit the
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passenger side of a pickup truck in the parking lot of the complex. Hedlund then
approached Evans and told him to “stop” and “take your hand out of your pocket.”
Evans ran away, and Hedlund ran after him.
After Evans rounded the corner of the north end of the apartment building,
Hedlund lost sight of him. During the time Hedlund could not see Evans, Hedlund
heard a “thud.” Hedlund eventually caught up to Evans, tackled him, and placed
him under arrest. A handgun was found in a bush by the north side of the building
near where Evans was running when Hedlund heard the “thud.” After a search
incident to arrest, Hedlund found a “holster, $200 in cash all in 20s, brass
knuckles,” and a jar of blue pills, marked “M30,” on Evans’ person.
After the search incident to arrest, the pickup truck was impounded and
lawfully searched pursuant to a search warrant. During the search, Hedlund found
a black Nike bag on the floor of the passenger side of the truck. Inside the bag,
Hedlund found “a scale with some residue on it, a knife, some baggies, . . . and
some rubber bands.” Additionally, Hedlund found more blue pills marked “M30”
inside the bag. The pills were sent to the Washington State Crime Laboratory,
where one of the pills retrieved from the black Nike bag was tested and found to
contain fentanyl.
Based on the forgoing facts, the State charged Evans with unlawful
possession of a firearm in the first degree and possession of a controlled
substance (fentanyl) with intent to manufacture or deliver with a special allegation
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of a firearm enhancement. 1 Evans moved to suppress the blue pills found on his
person, arguing “[w]ithout testing a pill from the sample found on Mr. Evans’
person, the State cannot say that the pills found on Mr. Evans’ person were
fentanyl.” The trial court denied the motion to suppress and found that possession
of the pills was relevant to whether Evans may have possessed the other similarly-
marked and similarly-shaped pills found in the pickup truck.
The jury convicted Evans of both counts. Following trial, Evans filed a
motion for judgment notwithstanding the verdict with regard to the conviction of
possession of a controlled substance with intent to deliver. The court denied the
motion, reasoning that sufficient evidence supported the jury’s verdict. Thereafter,
Evans was sentenced to 108 months of confinement. Evans appeals.
II
A
Evans argues that the trial court erred in “[a]dmitting the untested blue pills,”
which he claims were inadmissible under ER 403. We disagree.
Under ER 403, relevant evidence may be excluded if its probative value is
“substantially outweighed by the danger of unfair prejudice.” “We review decisions
to admit evidence using an abuse of discretion standard.” State v. Quaale, 182
Wn.2d 191, 196, 340 P.3d 213 (2014). A trial court abuses its discretion when its
decision is manifestly unreasonable or based on untenable grounds or untenable
reasons. State v. Ferguson, 25 Wn. App. 2d 727, 735, 524 P.3d 1080 (2023).
1 The State also charged Evans with a separate count of possession of a controlled substance
(methamphetamine) with intent to manufacture or deliver; however, the trial court dismissed this
count on Evans’ motion before opening statements due to “insufficient evidence to prove
possession with intent solely on the methamphetamine.”
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There was no abuse of discretion here. The pills found on Evans’ person
were relevant to show that Evans also possessed the pills found in the black Nike
bag, when considering that the pills were similar and that Evans was seen exiting
the passenger side of the vehicle where the black Nike bag was found one minute
before being arrested. Because the blue pills found on Evans’ person were not
tested for the presence of a controlled substance, the trial court instructed the jury
that the blue pills found on Evans’ person may be considered “only in determining
whether or not Mr. Evans possessed [the black Nike bag] and the items that were
found therein [(the fentanyl pills)] and for no other purpose.” This instruction
eliminated any unfair prejudice in admitting the untested pills. State v. Jackson,
145 Wn. App. 814, 824, 187 P.3d 321 (2008) (“Juries are presumed to follow
instructions.”). On this record, Evans has not shown that the probative value of
this evidence was substantially outweighed by the danger of unfair prejudice.
Relatedly, Evans argues that the trial court abused its discretion by failing
to conduct an ER 403 analysis “on the record.” Evans relies on State v. Powell,
126 Wn.2d 244, 893 P.2d 615 (1995), to support this argument, but his reliance on
Powell is misplaced. The trial court there admitted evidence of prior bad acts
(threats and other misconduct) under ER 404(b). Id. at 264. Where, as here, a
trial court admits evidence despite an ER 403 objection, our Supreme Court has
held:
Admissibility of evidence under ER 403, unlike ER 404(b) and ER
609, does not depend on the purpose for which it is offered. Thus,
the rationale for requiring the trial court to weigh its decision on the
record under ER 404(b) and ER 609 is not present in the case of an
ER 403 objection.
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Carson v. Fine, 123 Wn.2d 206, 223, 867 P.2d 610 (1994). Thus, the trial court
did not abuse its discretion or otherwise err by failing to weigh on the record the
probative value of this evidence against the danger of unfair prejudice. Nor did the
trial court abuse its discretion in admitting the untested blue pills, particularly given
its limiting instruction.
B
Evans argues there is insufficient evidence to support his conviction for
possession of a controlled substance with intent to manufacture or deliver. We
disagree.
To decide whether sufficient evidence supports a jury’s verdict, the court
must determine “whether any rational fact finder could have found the elements of
the crime beyond a reasonable doubt.” State v. Homan, 181 Wn.2d 102, 105, 330
P.3d 182 (2014). In determining this issue, “all reasonable inferences from the
evidence must be drawn in favor of the State and interpreted most strongly against
the defendant.” State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
Additionally, “Circumstantial and direct evidence are equally reliable, and we defer
to the trier of fact on conflicting testimony, witness credibility, and the
persuasiveness of the evidence.” State v. Raleigh, 157 Wn. App. 728, 736-37,
238 P.3d 1211 (2010).
Focusing solely on the first element of the charged offense—that “the
defendant possessed Fentanyl”—Evans claims that the “prosecution failed to
prove [he] possessed the fentanyl pills found in [the] vehicle.” Regarding that
element, the trial court instructed the jury as follows:
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Possession means having a substance in one’s custody or
control. It may be either actual or constructive. Actual possession
occurs when the item is in the actual physical custody of the person
charged with possession. 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. Dominion and
control need not be exclusive to support a finding of 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 immediate 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. No single one of these factors
necessarily controls your decision.
Evans did not object to this instruction, so it is “law of the case.” State v. Hickman,
135 Wn.2d 97, 102, 954 P.2d 900 (1998). Additionally, under controlling case law,
“[w]hen a person has dominion and control over a premises, there is a rebuttable
presumption that the person has dominion and control over items on the premises.”
State v. Listoe, 15 Wn. App. 2d 308, 327, 475 P.3d 534 (2020) (quoting State v.
Reichert, 158 Wn. App. 374, 390, 242 P.3d 44 (2010)).
Here, considering the relevant considerations, a rational juror could properly
find that Evans was in constructive possession of the fentanyl found in the black
Nike bag. Hedlund testified that he saw Evans exit the passenger side of the
vehicle where the black Nike bag was found on the floor of the vehicle. Hedlund
testified that the bag would have been situated by Evans’ knees when he was
sitting in the passenger seat. Thus, before exiting the vehicle, Evans had the
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immediate ability to take actual possession of the controlled substance. Further,
considering the close proximity of the bag to Evans, he had the ability to exclude
others from possession of the fentanyl, including the driver. This evidence, viewed
favorably to the prosecution, is sufficient to persuade a rational fact finder that
Evans unlawfully possessed a controlled substance.
Notwithstanding the above evidence and analysis, Evans argues “no
evidence beyond mere proximity connected Mr. Evans to the fentanyl pills found”
in the vehicle. Evans relies on State v. George, 146 Wn. App. 906, 193 P.3d 693(2008), to support this argument. In George, George was convicted of drug
possession and drug paraphernalia possession when police found a marijuana
pipe on the floor of the backseat of the car near his feet. Id. at 912-13. The court
of appeals reversed, reasoning that there was nothing more than mere proximity
to link George to the pipe because there was no evidence that George had a
history of using marijuana, no drugs or paraphernalia were found on his person,
no testimony ruled out the other occupants in the car as the owner of the pipe, and
no fingerprint evidence linked George to the pipe. Id. at 922.
Here, in contrast, the State did not rely on mere proximity, but provided
evidence of proximity in addition to other circumstances linking Evans to the
fentanyl pills. Unlike George, Evans was found with blue pills on his person that
were similarly marked and of a similar size, shape, and color as the fentanyl pills
found in the black Nike bag, along with items that the trial court noted (based on
Hedlund’s testimony) could be indicative of drug dealing, such as brass knuckles,
$200 in cash, and a holster. Additionally, the only other occupant in the pickup
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truck, its owner Sadia Mazen, consented to the police searching the truck, which
Hedlund testified would be unexpected for someone who knew there were drugs
in the vehicle. Thus, unlike the State in George, the State here permissibly relied
on “evidence of proximity coupled with ‘other circumstances linking the defendant
to the [fentanyl pills].’” George, 146 Wn. App. at 921 (quoting State v. Mathews, 4
Wn. App. 653, 658, 484 P.2d 942 (1971)).
In short, sufficient evidence supports the conviction for possession of a
controlled substance with intent to manufacture and deliver.
C
Evans argues that the prosecutor committed misconduct by appealing to
juror’s emotions and inappropriately raising the specter of the war on drugs during
voir dire and closing argument. We disagree.
To prevail on a prosecutorial misconduct claim, the defendant must show
that the prosecutor’s conduct was both improper and prejudicial. State v. Emery,
174 Wn.2d 741, 756, 278 P.3d 653 (2012). Where, as here, the defendant did not
object to the alleged instances of prosecutorial misconduct, the defendant must
show on appeal that “the misconduct was so flagrant and ill-intentioned that (1) no
curative instruction would have obviated any prejudicial effect on the jury and
(2) the resulting prejudice had a substantial likelihood of affecting the jury verdict.”
State v. Mireles, 16 Wn. App. 2d 641, 656, 482 P.3d 942 (2021). We review the
prosecutor’s conduct in the context of the whole argument, issues of the case,
evidence addressed in the argument, and jury instructions. State v. Gouley, 19
Wn. App. 2d 185, 200, 494 P.3d 458 (2021).
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In State v. Loughbom, 196 Wn.2d 64, 470 P.3d 499 (2020), our Supreme
Court recognized that a prosecutor’s repeated references to the war on drugs can
rise to the level of flagrant and ill-intentioned misconduct. The prosecutor in
Loughbom referred to the war on drugs in the State’s opening argument, rebuttal,
and closing argument and framed the case as “another battle in the ongoing war
on drugs throughout our state and throughout our nation as a whole.” Id. at 68.
Our Supreme Court held, “The prosecutor’s repeated invocation of the war on
drugs was a thematic narrative designed to appeal to a broader social cause that
ultimately deprived Loughbom of a fair trial.” Id. at 70. The court explained such
“‘[r]epetitive misconduct can have a cumulative effect’” and remanded the matter
for a new trial. Id. at 77-78 (quoting State v. Allen, 182 Wn.2d 364, 376, 341 P.3d
268 (2015) (internal quotation marks omitted)).
Contrary to Evans’ argument, the prosecutor’s references in this case to
enforcement of drug laws are not analogous to the prosecutorial misconduct in
Loughbom. During voir dire, the prosecutor asked prospective jurors if they
believed “the State should not be getting involved with fentanyl distribution?” The
question appropriately probed the potential jurors’ beliefs regarding an issue at the
heart of the case: the role of law enforcement in addressing illegal drug use.
Unlike the prosecutor in Loughbom, the prosecutor in this case did not frame the
case as “another battle in the ongoing war on drugs throughout our state and
throughout our nation as a whole.” 196 Wn.2d at 68. Nor did the prosecutor
repeatedly emphasize this point throughout the trial, as the prosecutor did in
Loughbom. Instead, the issue arose briefly during voir dire and not within the trial
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itself. Lastly, even if the prosecutor’s conduct was improper, a curative instruction
would have obviated any prejudicial effect on the jury. On this record, Evans
cannot establish misconduct or prejudice as required by Mireles (quoted above)
and similar cases.
Evans attempts to show repeated misconduct, similar to Loughbom, by
pointing to the prosecutor’s references to voir dire during closing argument. During
her closing argument, the prosecutor asked jurors to “go back to voir dire for a
minute . . . . [T]here were comments made regarding the connection between guns
and drugs and dangerous activities and that those two are often coupled together.”
This, Evans claims, rises to the level of repeated misconduct similar to that in
Loughbom. But this argument mischaracterizes the prosecutor’s comments during
closing argument. The prosecutor was not invoking the war on drugs or recalling
the dangers of fentanyl, but was instead suggesting that the fact that Evans had
an empty holster on his person was circumstantial evidence that he was
distributing drugs—a theme that had been introduced earlier in the case when both
the prosecutor and defense counsel questioned the jury about the connection
between guns and dangerous activities. Evans’ argument that this case involves
repeated misconduct and is in that sense analogous to Loughbom thus fails.
Because Evans has not shown that the conduct at issue was so flagrant
and ill-intentioned that no curative instruction would have obviated any prejudicial
effect on the jury or that any resulting prejudice had a substantial likelihood of
affecting the jury verdict, his prosecutorial misconduct claim fails.
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D
Evans argues that his defense counsel was ineffective for failing to object
to (a) the prosecutor’s questioning during voir dire regarding the role of law
enforcement in addressing illegal drug use and (b) opinion testimony of Hedlund.
We disagree.
A defendant alleging ineffective assistance of counsel must establish that
(a) “counsel’s performance was deficient” and (b) “the defendant was prejudiced
by the deficient performance.” In re Pers. Restraint of Crace, 174 Wn.2d 835, 840,
280 P.3d 1102 (2012) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.
Ct. 2052 (1984)). “Performance is deficient if it falls ‘below an objective standard
of reasonableness based on consideration of all the circumstances.’” State v.
State v. Estes, 188 Wn.2d 450, 458, 395 P.3d 1045 (2017) (quoting State v.
McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995)). There is a strong
presumption of effective assistance, which “is not overcome if there is any
‘conceivable legitimate tactic’ that can explain counsel’s performance.” In re Det.
of Hatfield, 191 Wn. App. 378, 402, 362 P.3d 997 (2015) (quoting State v.
Reichenbach, 153 Wash.2d 126, 130, 101 P.3d 80 (2004)). “Prejudice exists if
there is a reasonable probability that ‘but for counsel’s deficient performance, the
outcome of the proceedings would have been different.’” Id. (quoting State v. Kyllo,
166 Wn.2d 856, 862, 215 P.3d 177 (2009)). And although it is lower than a
preponderance standard, a “reasonable probability” is “a probability sufficient to
undermine confidence in the outcome.” Id. (citing Strickland, 466 U.S. at 694, 104
S. Ct. 2052).
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Evans’ first argument—that his defense counsel provided ineffective
assistance of counsel by failing to object to the prosecutor’s questioning regarding
the impact of fentanyl in the community during voir dire—easily fails. Given the
prosecutor’s limited questioning on the topic (as in part II.C above recounts),
Evans’ defense counsel may have chosen to refrain from objecting to the
questioning to avoid drawing additional attention to it. See, e.g., State v. McDaniel,
155 Wn. App. 829, 862, 230 P.3d 245 (2010) (counsel “may have had tactical
reasons not to ask for a limiting instruction, namely, to not call attention to the
incriminating stipulation”). Thus, the failure to object could have been a legitimate
trial strategy or tactic, which is fatal to Evans’ ineffective assistance of counsel
claim. See Hatfield, 191 Wn. App. at 402 (cited and quoted above). Additionally,
as discussed below, Evans fails to show prejudice.
Evans’ second argument—that his defense counsel provided ineffective
assistance of counsel by failing to object to Hedlund’s opinion testimony—similarly
fails. Relevant to this argument, Hedlund was asked, “based on your training and
experience, what did the combination of the scale, the baggies, the pills, the
weapons in their totality indicate to you?” He answered:
That Mr. Evans was in possession of a controlled substance with
packaging materials, things to weigh them, additional packaging
materials, including rubber bands, ways to cut them that would be
indicative that he was distributing them along with cash as well.
Evans contends that defense counsel should have objected to this answer
because Hedlund improperly opined on the issue of guilt, which in turn violated
Evans’ constitutional right to a jury trial. See, e.g., State v. Montgomery, 163
Wn.2d 577, 594, 183 P.3d 267 (2008) (“Opinions on guilt are improper whether
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direct or by inference.”).
Even if we assume, without deciding, that defense counsel’s failure to object
to this testimony was deficient performance, Evans has failed to establish
prejudice. That is so because there is overwhelming evidence of guilt, including
constructive possession of fentanyl pills moments before fleeing from law
enforcement, drug paraphernalia found in the black Nike bag, and actual
possession of pills that have the same appearance as the fentanyl pills found in
the black Nike bag in the pickup truck. Thus, it is not reasonably probable that the
outcome of the proceedings would have been different had defense counsel
objected to the testimony at issue.
Evans claims that this case is analogous to State v. Vazquez, 198 Wn.2d
239, 494 P.3d 424 (2021), but Vazquez is distinguishable. In Vazquez, defense
counsel repeatedly failed to object to evidence of Vazquez’s prior convictions,
testimony implying Vazquez threatened two witnesses, hearsay statements
regarding Vazquez’s alleged drug sales, and police testimony linking the
ownership of a tactical vest to selling drugs. Id. at 250. The court concluded that
this evidence was inadmissible and “highly prejudicial” and that Vazquez had
satisfied Strickland’s prejudice prong because “the cumulative effect of counsel’s
subpar performance likely affected the outcome of the case.” Id. at 245, 268-69.
Here, in contrast, Evans focuses narrowly on defense counsel’s failure to object to
an isolated answer in a trial that included overwhelming evidence of guilt. Whereas
Vazquez was able to establish prejudice, Evans has not. His ineffective assistance
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No. 85372-4-I
of counsel based on defense counsel’s failure to object to Hedlund’s purported
opinion testimony thus fails.
VI
Finally, Evans argues, and the State agrees, that we should remand his
case to the trial court to strike the $500 VPA imposed during sentencing. Under
the recently amended RCW 7.68.035, no VPA may be imposed upon an indigent
defendant. Although the amended statutes took effect after Evans’ sentencing,
they apply here because Evans’ case is on direct appeal. See State v. Ellis, 27
Wn. App. 2d 1, 16-17, 530 P.3d 1048 (2023). At sentencing, Evans was found to
be indigent. We therefore remand for the trial court to strike the VPA from Evans’
judgment and sentence.
In all other respects, we affirm.
WE CONCUR:
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