State Of Washington v. Ricky R. Sexton

Filed
Washington State
Court of Appeals
Division Two
August 4, 2020
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 52401-5-II
Respondent,
v.
RICKY RAY SEXTON, UNPUBLISHED OPINION
Appellant.
GLASGOW, J.—A confidential informant told police that Ricky Ray Sexton was selling
methamphetamine out of his home. The police obtained a warrant to search the home for any
evidence related to the sale of methamphetamine. As the police arrived to execute the warrant, a
man on the porch of the home saw them and ran inside. The police then announced their presence
and the fact that they had a warrant over a loudspeaker as they rushed to and breached the door.
The police seized methamphetamine and other drugs, as well as a firearm and several items
typically used for packaging methamphetamine for sale.
The trial court denied Sexton’s motions to suppress the evidence from the search and to
represent himself. After a jury trial, Sexton was convicted of possession of methamphetamine with
intent to deliver, possession of methylphenidate with intent to deliver, possession of oxycodone,
and unlawful possession of a firearm.
Sexton appeals, arguing that the evidence seized from his home should have been
suppressed because the police violated the knock and announce rule and probable cause had
become stale by the time they executed the search warrant. He argues that the trial court violated
his right of self-representation and improperly commented on the evidence in the jury instructions.
No. 52401-5-II
Sexton also alleges errors related to the maximum sentence for his methylphenidate conviction
and the imposition of a community custody condition. He claims that several legal financial
obligations were improperly imposed. He also filed a statement of additional grounds (SAG)
alleging ineffective assistance of counsel.
We affirm Sexton’s convictions. The police’s actions satisfied the knock and announce rule
and were independently justified by exigent circumstances. Probable cause had not become stale.
The trial court did not err in denying Sexton’s motion to represent himself because his request was
equivocal. The jury instructions on possession did not constitute a judicial comment on the
evidence. None of the arguments in Sexton’s SAG requires reversal.
We remand for the trial court to strike the improper legal financial obligations from
Sexton’s judgment and sentence, reexamine the imposition of the supervision assessment fee,
correct the challenged community custody condition to prohibit Sexton from knowingly
associating with drug users or sellers, and determine whether Sexton had a qualifying prior
conviction under RCW 69.50.408(2) and resentence him if necessary.
FACTS
A confidential informant told the police that they had recently been to Sexton’s home and
witnessed him selling methamphetamine. The informant said that Sexton regularly sold
methamphetamine out of his home. The informant also said that they saw varying amounts of
methamphetamine in different sized baggies, other packaging of various sizes, a handgun, and a
drug scale. Based on this information, police obtained a warrant to search Sexton’s home for
evidence of the crime of possession of a controlled substance with intent to deliver, including
methamphetamine, firearms, and equipment and other items “of any kind which are used, or
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intended for use, in the manufacturing, compounding, processing, delivering, packaging,
importing or exporting of methamphetamine and/or any controlled substances.” Clerk’s Papers
(CP) at 21. The warrant was issued within 72 hours of the informant being in Sexton’s home.
The police conducted a threat assessment, identified this warrant as high risk, and
assembled a special weapons and tactics team (SWAT) to execute the warrant. The threat
assessment was based on information that Sexton was selling drugs at his home, he was known to
carry a firearm, he had a large dog at his residence that could be used for counter surveillance, and
it would be difficult for police to surprise the occupants when executing the warrant due to the
home’s location and local topography.
In the early morning, nine days after the police received the tip from the informant, a
SWAT team went to Sexton’s home to serve the warrant. As the SWAT armored vehicle
approached Sexton’s home, police officers observed a man on the front porch who saw them and
then ran inside the home. An officer yelled out that the operation was compromised, and several
officers rushed up to the home to breach the door. The officer tasked with breaching the door
testified that he did not knock and announce his presence because “compromise” had been called,
although another officer testified that he was continuously broadcasting over the vehicle’s
loudspeaker system identifying the officers as police, explaining that they had a warrant, and
ordering the occupants of the home to get on the ground. 1 Verbatim Report of Proceedings (VRP)
(Feb. 13-14, 2018) at 59, 91.
Once inside, the police seized digital scales, a spiral notebook with names and numbers, a
handgun, bottles containing oxycodone and methylphenidate, and several bags containing
methamphetamine. The officers arrested Sexton, and the State charged him with one count of
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possession of methamphetamine with intent to deliver, one count of possession of methylphenidate
with intent to deliver, one count of possession of oxycodone, and one count of unlawful possession
of a firearm. The two counts of possession with intent to deliver also carried firearm enhancements.
Sexton moved to suppress evidence seized from the search of his home. At the hearing on
the motion, police officers testified that in their experience methamphetamine is easily disposable
and that suspects often try to dispose of drugs in similar circumstances. There was also testimony
on the basis for classifying the warrant as high risk and the reasons for using a SWAT team to
execute the warrant, as described above.
There was conflicting testimony about what message the police announced over the
loudspeaker just before the officers breached the door, as well as the length of the delay between
the beginning of those announcements and the breach. One officer testified that he announced over
the loudspeaker, “[T]his is the police, we have a warrant, get on the ground,” and that the other
officers breached the door 10 to 15 seconds later. Id. at 91-92. Another officer testified that the
announcement was, “[P]olice, search warrant, open the door,” and the breach occurred three to
five seconds later. Id. at 57, 64.
The trial court denied the motion to suppress. The court found that the basis for using a
SWAT team was “information that the defendant may be dealing controlled substance out of his
residence, was known to carry a firearm, had a large dog at his residence, and the difficulty of
maintaining concealment while approaching the defendant’s residence based upon its location and
topography.” CP at 121. The trial court found that each of the testifying officers was credible in
their testimony. The court entered findings concerning the officers’ conflicting testimony, finding
that the officers informed the occupants of Sexton’s home “of their presence, their identity, their
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purpose for being there, and to demand admittance.” CP at 126. The court found that about 15
seconds passed between the beginning of the announcements and the moment the police breached
the door.
The trial court orally concluded that the officers’ actions satisfactorily complied with the
knock and announce rule. In its written conclusions, the court determined that the delay in time
between the officers’ announcements and the forced entry was reasonable and did not violate the
law. The court also ruled that exigent circumstances justified the officers’ “expedient entry” into
Sexton’s home, based on the fact that the officers “had been observed by a person at the
defendant’s residence resulting in ‘compromise’ being called out, that the search warrant was
issued for evidence that could be easily and quickly destroyed, and that Deputies had been advised
that the defendant was known to carry a firearm.” CP at 126.
The trial court also ruled that the nine-day delay in executing the warrant had not rendered
probable cause stale. The warrant was served within 10 days and the suspected criminal activity
as described in the affidavit establishing probable cause was ongoing in nature. The court also
reasoned that the fact that Sexton was operating out of a single-family home, as opposed to a car
or boat, suggested that the operation was ongoing rather than merely transitory.
The following day, when jury selection was set to begin, Sexton fired his attorney and
verbally asked to represent himself, without filing a formal motion. The trial court asked Sexton if
he intended to represent himself and Sexton replied, “At this time, yes.” 2 VRP (Feb. 15, 2018) at
7. When the court asked him to clarify, Sexton discussed at length his frustrations with the
proceeding up to that point and the emotional turmoil he was going through, saying he was
“reluctantly” firing his attorney. Id. at 8. He indicated that the reasons he wanted to fire his attorney
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were personal disagreements, frustrations over numerous delays in the proceeding, the court’s
denial of his suppression motion, and the fact that he could no longer afford to pay the attorney.
Sexton also informed the court that he had attempted to contact an attorney in Seattle that he
indicated would assist him with his case. The court then engaged in a lengthy colloquy in which
he asked about Sexton’s knowledge of the legal system, discussed the risks of self-representation,
and advised Sexton that he would be held to the same technical and procedural requirements as an
attorney.
The trial court ultimately denied the motion, finding that Sexton’s request was untimely
and made for the purposes of delaying the proceedings, that Sexton’s request was equivocal, and
that Sexton was not prepared to try his own case.
At trial, police officers testified regarding the items seized from Sexton’s home. The trial
court issued substantively identical jury instructions on possession with respect to the firearm and
the drugs. The jury instructions stated that possession can be actual or constructive, and
constructive possession occurs when there is dominion or control over the item in question. The
instructions continued:
In deciding whether the defendant had dominion and control over [an item],
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 [item], whether the defendant had the capacity to exclude others
from possession of the [item], and whether the defendant had dominion and control
over the premises where the [item] was located. No single one of these factors
necessarily controls your decision.
CP at 61, 76.
The jury found Sexton guilty on all counts but did not find that the firearm enhancements
applied. The trial court sentenced Sexton to 85 months of confinement on each of the drug
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possession counts and 24 months on the one count of firearm possession, all to be served
concurrently. The court listed the maximum sentence for the methylphenidate conviction, a class
C felony, as 10 years. Sexton’s statement of criminal history and offender score identified the
methylphenidate conviction as a class B felony.
During the sentencing hearing, the trial court stated that it would impose a condition of
community custody forbidding Sexton from knowingly associating with drug users or sellers, as
that is what the State requested. On Sexton’s judgment and sentence, the court forbade him from
associating with all drug users and sellers, leaving out the word “knowingly.” CP at 112. The trial
court also imposed a criminal filing fee, DNA collection fee, and community supervision fee.
Sexton appeals.
ANALYSIS
I. SEXTON’S RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES
Sexton argues the police violated his right to be free from unreasonable searches and
seizures when they raided his home, and all evidence from that search should have been
suppressed. First, he argues the police violated the knock and announce rule when they broke down
his door without first asking for and being denied permission to enter. Second, he argues the police
no longer had probable cause to search his home when they executed the search warrant. We reject
both arguments.
A. Knock and Announce
Sexton argues that the police violated the knock and announce rule when they executed the
search warrant because they did not knock on his door and announce their presence before breaking
in. We disagree. The trial court did not err when it concluded that the police complied with the
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knock and announce rule, but even if they had not complied, exigent circumstances supported
immediate entry into Sexton’s home.
1. The knock and announce rule generally
The Fourth Amendment to the United States Constitution and article I, section 7 of the
Washington Constitution both require that the police comply with the knock and announce rule
before entering a person’s home without consent. State v. Ortiz, 196 Wn. App. 301, 307, 383 P.3d
586 (2016). Washington has codified this requirement in RCW 10.31.040: “To make an arrest in
criminal actions, the officer may break open any outer or inner door, or windows of a dwelling
house or other building, or any other inclosure, if, after notice of his or her office and purpose, he
or she be refused admittance.” This statute applies to both arrest warrants and search warrants.
State v. Shelly, 58 Wn. App. 908, 910, 795 P.2d 187 (1990).
“‘To comply with the statute, the police must, prior to a nonconsensual entry, announce
their identity, demand admittance, announce the purpose of their demand, and be explicitly
or implicitly denied admittance.’” Ortiz, 196 Wn. App. at 307-08 (quoting State v. Coyle, 95
Wn.2d 1, 6, 621 P.2d 1256 (1980)). Denial of admittance may be inferred by lack of response. Id.
at 308. The police must observe a reasonable “‘waiting period’” before they may enter without
permission. Id. (quoting State v. Richards, 136 Wn.2d 361, 370, 962 P.2d 118 (1998)).
“‘Whether an officer waited a reasonable time before entering a residence is a factual
determination to be made by the trial court and depends upon the circumstances of the case.’” Id.
at 308 (quoting Richards, 136 Wn.2d at 374). The trial court evaluates the reasonableness of the
waiting period by considering the purposes of the rule: “‘(1) [R]eduction of potential violence to
both occupants and police arising from an unannounced entry, (2) prevention of unnecessary
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property damage, and (3) protection of an occupant’s right to privacy.’” Id. (quoting Coyle, 95
Wn.2d at 5).
Courts require strict compliance with the rule unless the police can show the existence of
exigent circumstances or that compliance with the rule was futile because police presence was
likely known. Id.; Coyle, 95 Wn.2d at 11-12. Exigent circumstances may exist where “the police
had ‘a reasonable suspicion that knocking and announcing their presence, under the particular
circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of
the crime by, for example, allowing the destruction of evidence.’” State v. Cardenas, 146 Wn.2d
400, 411, 47 P.3d 127 (2002) (quoting Richards v. Wisconsin, 520 U.S. 385, 394, 117 S. Ct. 1416,
137 L. Ed. 2d 615 (1997)). “To prove exigent circumstances, the State must ‘point to specific,
articulable facts and the reasonable inferences therefrom which justify the intrusion.’” State v.
Muhammad, 194 Wn.2d 577, 597, 451 P.3d 1060 (2019) (quoting Coyle, 95 Wn.2d at 9).
The State can make this showing either with evidence that police received specific, prior
information that the suspect may create an exigency, or that in the moment they were “‘confronted
with some sort of contemporaneous sound or activity alerting them’ to the possible presence of an
exigent circumstance.” Coyle, 95 Wn.2d at 10 (quoting State v. Mueller, 15 Wn. App. 667, 670,
552 P.2d 1089 (1976)). It is the State’s burden to show compliance or exigent circumstances
excusing noncompliance. Muhammad, 194 Wn. App. at 596. “‘The proper remedy for an
unexcused violation is suppression of the evidence obtained by the violation.’” Ortiz, 196 Wn.
App. at 308 (quoting Coyle, 95 Wn.2d at 14).
We review de novo the conclusions of law entered in connection with a suppression order.
Cardenas, 146 Wn.2d at 407. We defer to the trial court’s assessment of conflicting evidence and
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witness credibility. State v. Edwards, 20 Wn. App. 648, 652, 581 P.2d 154 (1978); State v.
Johnson, 94 Wn. App. 882, 889-90, 974 P.2d 855 (1999). However, such evidence must still be
“constitutionally sufficient” in order to sustain a finding of exigent circumstances. Edwards, 20
Wn. App. at 652.
2. Whether the police complied with the knock and announce rule
The trial court concluded that the warrant was properly served because the officers
announced themselves and their purpose, and they waited a reasonable amount of time under the
circumstances before breaching the door. Sexton focuses on the fact that the officer who
announced the police’s arrival over the loudspeaker testified that he told the occupants of the house
to “get on the ground,” rather than to “open the door.” Br. of Appellant at 15-16 (emphasis
omitted). But the rule does not require that the police literally knock on the door and demand entry
in every case. Rather, the relevant inquiry is whether the officers’ actions effectuated the purposes
of the rule. Richards, 136 Wn.2d at 372-73. “A police officer who identifies himself and announces
that he has a search warrant has implicitly demanded admission.” Johnson, 94 Wn. App. at 889.
Multiple officers testified that the loudspeaker announcements identified the officers as
police and stated that they had a search warrant. This testimony supported the trial court’s finding
that the officers informed the occupants of Sexton’s home “of their presence, their identity, their
purpose for being there, and [demanded] admittance.” CP at 126. This announcement was similar
to the announcement found sufficient in Richards, where the officers said simply, “‘Police. We
have a search warrant.’” 136 Wn.2d at 372. It is clear that the officers here adequately announced
themselves and their purpose and at least implicitly demanded admission by telling the occupants
that they had a search warrant and to get on the ground. The announcement was broadcast over a
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SWAT van loudspeaker. It was reasonable for the officers to conclude that the occupants of
Sexton’s home were on notice of their presence and purpose. See id. at 377-78.
Turning to the reasonableness of the delay before entry, the trial court found that
“[a]pproximately [15] seconds elapsed between the time Deputies began making their PA system
announcements” and the breach. CP at 126. Although there was conflicting testimony on how
much time elapsed, the officer that made the announcements over the loudspeaker testified that the
delay was 15 seconds, and the trial court found this testimony to be credible. This testimony
adequately supported the trial court’s finding of an approximately 15-second delay between the
announcement and entry, particularly in light of the deference we give to the court’s assessment
of witness credibility when there is conflicting evidence. See Johnson, 94 Wn. App. at 889. The
Johnson court found a delay of 5 to 10 seconds to be reasonable where, as here, the police
reasonably believed there was a danger that evidence was being destroyed. Id. at 890-91. And as
the court explained in Richards, the knock and announce rule does not require the police to wait
longer when doing so would be futile: “To wait for grant or denial of admission after an occupant
has been made aware of a police officer’s presence and purpose would serve no logical purpose.
The police officer is already authorized by the search warrant to enter the premises without
permission from the occupant.” 136 Wn.2d at 378.
Given the factually dependent nature of the inquiry, we defer to the trial court’s evaluation
of witness credibility, and we agree with the trial court that a delay of several seconds was
reasonable under the circumstances. It would have served no logical purpose for the officers to
delay their entry any longer where they were already broadcasting their presence and purpose over
a loudspeaker.
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Under the circumstances, the police adequately announced their presence and purpose, and
a reasonable delay occurred before they breached Sexton’s door. Accordingly, there was no
violation of the knock and announce rule.
3. Whether exigent circumstances justified immediate entry
Even if the police had not strictly complied with the knock and announce rule, the trial
court explicitly concluded that exigent circumstances justified immediate entry into the home. The
trial court found that the warrant had been classified as high risk and necessitated SWAT
involvement, someone on the porch of Sexton’s home saw the police arrive, the police were
looking for evidence that could easily and quickly be destroyed, the police had been advised that
there was a large dog on the property, and Sexton was known to carry a firearm. Sexton challenges
these findings and argues that they did not support the trial court’s legal conclusions regarding
exigency. We disagree.
In Cardenas, the Washington Supreme Court held that exigent circumstances existed
where the officers reasonably believed the occupants were armed, the officers were aware that the
occupants had recently used force against their robbery victims, the officers observed the
occupants running away from the door, and the evidence was easily disposable. 146 Wn.2d at 412.
The court reasoned that under these circumstances it was reasonable for the officers to be
concerned that the suspects would attempt to escape, confront the officers, or try to destroy
evidence, and so the knock and announce requirement was excused. Id.In Edwards, police serving a search warrant for drugs knocked on the door and saw a man
appear at a nearby window and then quickly disappear. 20 Wn. App. at 649. The officers then
announced their presence and purpose, but did not wait for a response and instead immediately
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kicked down the door. Id. at 649-50. We held that the fact that somebody saw the officers through
a window and then moved away, even when combined with the “perishable nature of the
evidence,” did not justify a finding of exigent circumstances. Id. at 652. We reasoned that there
was no other evidence of unusual activity, noise, or conduct indicating an exceptional situation.
Id.
In State v. Johnson, 11 Wn. App. 311, 312, 522 P.2d 1179 (1974), the defendant saw police
arresting his friend outside his home and then quickly went inside. The police thought the
defendant might have been getting a weapon to stop the arrest and ran up to the door. Id. The
officers could see through the door that the defendant had not obtained a weapon but, nevertheless,
immediately entered the home and found a variety of stolen property. Id. Division One of this court
held that although there initially existed exigent circumstances, they were no longer present once
the officers could see that the defendant was not acting suspiciously. Id. at 318-19.
Sexton relies on State v. Dugger, 12 Wn. App. 74, 528 P.2d 274 (1974) and State v. Jeter,
30 Wn. App. 360, 634 P.2d 312 (1981). In Dugger, Division One noted that the mere possibility
of destruction of evidence is insufficient to create an exigent circumstance, and although concern
for officer safety can create the requisite exigency, such concern must be supported by “[s]ome
credible evidence, such as knowledge that the occupants might possess weapons and be
predisposed to respond violently.” Id. at 83. In Jeter, we similarly held that the mere knowledge
that a convicted felon kept a gun by his bed was insufficient to show exigent circumstances absent
specific information that the defendant was predisposed to use the gun, and the risk of destruction
of evidence was likewise an insufficient basis because there was no evidence to suggest that the
defendant might destroy contraband. 30 Wn. App. at 362.
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Here, the police did not have any prior specific information that Sexton was predisposed
to violence or that the occupants were likely to destroy evidence. However, unlike in Dugger and
Jeter, the police’s risk assessment called for the deployment of a SWAT team based on a variety
of factors that were predetermined to pose threats to officer safety. Also unlike in Dugger and
Jeter, the officers saw someone on the porch recognize them as police officers and immediately
bolt inside. Deputy Philip Wylie testified that it was obvious that the person on the front porch had
seen the police approach the house and then went inside in a hurry. Deputy Derek Nielsen testified
that the man on the porch “obviously saw us and made the decision to bolt, run back into the house
and slam the door.” 1 VRP (Feb. 13-14, 2018) at 54. Nielsen believed this was why another officer
called “compromise.” Id. The trial court found the testimony of each officer credible.
The court in Johnson concluded that a similar event there initially created exigent
circumstances. 11 Wn. App. at 318-19. The difference is that in Johnson, the exigency dissipated
when the officers saw the defendant through an open door, whereas here, the officers could not
see inside the house and did not know whether the occupants were destroying evidence or arming
themselves. And the fact that the man on the porch “bolt[ed]” inside and “slam[med] the door”
distinguishes this case from Edwards, where the occupant merely appeared at a window and then
quickly moved away, apparently with no other indication that he was alarmed by police presence.
1 VRP (Feb. 13-14, 2018) at 54; Edwards, 20 Wn. App. at 650.
Instead, this case is similar to State v. Carson, 21 Wn. App. 318, 322, 584 P.2d 990 (1978),
where the officers’ forcible entry was justified because they had prior information that the
defendant kept a shotgun by his door for protection and saw the defendant quickly close the door
and move away when he saw the officers approach. The Carson court reasoned that the officers
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could reasonably have interpreted the defendant’s actions “as creating a risk that evidence would
be destroyed or that officers’ lives were in danger.” Id.Although the officers here did not have information that any of the occupants of the house
had recently used force against anyone, they reasonably suspected that there would be electronic
surveillance, firearms, and a large dog in the house, the evidence sought was easily disposable,
and they witnessed activity that suggested that the occupants may attempt to flee, destroy evidence,
or confront the officers. See Cardenas, 146 Wn.2d at 412; see also State v. Wilson, 9 Wn. App.
909, 914-16, 515 P.2d 832 (1973) (holding that forcible entry was reasonable where informants
told the police that the defendant was armed with a pistol and had other firearms, the officers knew
the defendant had several narcotic convictions, and there was a concern that evidence would be
destroyed). There was testimony that the specific evidence sought was easily disposable, and in
the officers’ experience, suspects have frequently tried to dispose of drugs in these circumstances.
The trial court’s findings on the justification for using a SWAT team were therefore supported by
substantial evidence, and those findings supported its conclusion that exigent circumstances
justified immediate entry into Sexton’s home.
Viewing the totality of the circumstances, it was reasonable for the police to conclude that
the man on the porch had fled inside to warn the other occupants to destroy or hide evidence or to
prepare to physically confront the officers. In light of the police’s threat assessment and the
officers’ perceived danger to their safety, it was reasonable for the officers to conclude that taking
additional time to knock and announce could have endangered officer safety and inhibited the
effective investigation of the crime. See Cardenas, 146 Wn.2d at 411. The trial court was
convinced by the officers’ testimony that the operation was compromised when the man on the
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porch saw them and ran inside, and we defer to that determination of credibility. Johnson, 94 Wn.
App. at 889. For these reasons, we hold that exigent circumstances also justified the officers’ entry
several seconds after they announced their presence.
B. Probable Cause and Staleness
Sexton next argues that although probable cause existed when the search warrant was
originally granted, it had become stale by the time the police executed the warrant nine days later.
We disagree.
A search warrant may only issue upon a determination of probable cause. State v. Youngs,
199 Wn. App. 472, 475, 400 P.3d 1265 (2017). Probable cause exists if the affidavit in support of
the warrant sets forth facts and circumstances sufficient to establish a reasonable inference that a
person is probably involved in criminal activity and the evidence of the crime could be found in
the place to be searched. State v. Constantine, 182 Wn. App. 635, 646, 330 P.3d 226 (2014).
CrR 2.3(c) provides that a warrant “shall command the officer to search within a specified
period of time not to exceed 10 days.” A delay in executing the warrant may render the
determination of probable cause stale. State v. Maddox, 152 Wn.2d 499, 505, 98 P.3d 1199 (2004).
“The information is not stale for purposes of probable cause if the facts and circumstances in the
affidavit support a commonsense determination that there is continuing and contemporaneous
possession of the property intended to be seized.” Id. at 506. A court evaluates staleness by looking
at the totality of circumstances, including the amount of time between the warrant’s issuance and
execution and the nature and scope of the suspected criminal activity and property to be seized.
State v. Lyons, 174 Wn.2d 354, 361, 275 P.3d 314 (2012).
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Sexton relies in part on Maddox. In that case, probable cause was based on an informant’s
statement that he had bought methamphetamine from the defendant, and the defendant indicated
that he may have more to sell if the informant returned with cash. Maddox, 152 Wn.2d at 503. The
search warrant authorized police to search for methamphetamine and any paraphernalia or other
evidence related to the manufacture, sale, and distribution of methamphetamine. Id. Nine days
later, the informant returned with cash, but the defendant told him he did not have any
methamphetamine at the moment and the informant would have to come back in a few days. Id. at
504. The police executed the warrant the following day, seizing evidence of methamphetamine
sales but no methamphetamine. Id.The defendant argued probable cause was rendered stale not only because of the 10-day
delay in executing the warrant, but also because police had learned new information that negatively
impacted probable cause and did not return to the magistrate for a redetermination of probable
cause. Id. at 506-07. The Washington Supreme Court held that where new information arises that
undermines probable cause, return to the magistrate for reevaluation is required. Id. at 508. This
portion of Maddox is not helpful to Sexton. The Maddox court ultimately held that the search and
seizure were still valid because probable cause remained for the paraphernalia and other evidence
of an ongoing operation to sell and distribute methamphetamine. Id. at 512-13.
The warrant here was served within the 10-day time limit of CrR 2.3(c) and within the time
limit stated in the warrant. The trial court reasoned that the location of the drug operation in a
single-family home suggested it was an ongoing operation instead of a transitory one. And the
informant told police that Sexton sold methamphetamine regularly. Unlike in Maddox, here the
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No. 52401-5-II
police received no new information to suggest that Sexton no longer had any drugs. For these
reasons, the warrant was not stale with regard to the search for methamphetamine.
Moreover, the informant stated that Sexton owned a scale and baggies that he used for such
transactions, as well as a handgun. Even if we assumed that probable cause became stale with
respect to the methamphetamine, under Maddox it still existed with respect to this other evidence
that the police sought. Given their informant’s information and the nature of the suspected crime
of selling methamphetamine, it was reasonable for the police to expect that Sexton’s possession of
the handgun, scale, packaging materials, and other possible evidence related to the sale of
methamphetamine was continuous and ongoing.
Sexton also argues we should follow an Indiana case, Huffines v. State, 739 N.E.2d 1093(Ind. Ct. App. 2000). There, the police executed a warrant to search the defendant’s house for
cocaine about a week and a half after an informant bought cocaine from the defendant. Id. at 1094.
On appeal, the court determined probable cause had dissipated because it had been based on a
single, isolated transaction and there was no evidence the activity was ongoing. Id. at 1099. Here,
in contrast, the informant told police that Sexton regularly sold methamphetamine, and the trial
court legitimately reasoned that drug sales out of a residence could reasonably be perceived as
more permanent than sales from other locations.
We hold that the nine-day period between the informant’s visit to the house and the
execution of the warrant did not render probable cause stale. Considering the nature of the
suspected crime and the information provided by the informant, it was reasonable to expect that
Sexton’s possession of the items listed in the search warrant was continuous and ongoing.
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No. 52401-5-II
II. SEXTON’S RIGHT TO REPRESENT HIMSELF
Sexton argues the trial court violated his constitutional right to represent himself by
denying his motion to proceed pro se. We disagree.
A. Right of Self-Representation
Both the federal and state constitutions provide that defendants have the right to represent
themselves. State v. Curry, 191 Wn.2d 475, 482, 423 P.3d 179 (2018). The unjustified denial of
this right requires reversal. State v. Burns, 193 Wn.2d 190, 202, 438 P.3d 1183 (2019).
This right is neither self-executing nor absolute—the defendant must unequivocally and
timely request to proceed pro se. Curry, 191 Wn.2d at 482. “This requirement protects defendants
from inadvertently waiving assistance of counsel and protects trial courts from ‘manipulative
vacillations by defendants regarding representation.’” Id. at 483 (quoting State v. DeWeese, 117
Wn.2d 369, 376, 816 P.2d 1 (1991)).
For this reason, courts must “indulge in ‘every reasonable presumption’ against a
defendant’s waiver of [their] right to counsel.” Burns, 193 Wn.2d at 202 (internal quotation marks
omitted) (quoting In re Det. of Turay, 139 Wn.2d 379, 396, 986 P.2d 790 (1999)). “[E]ven with
this presumption, a trial court may deny a request to proceed pro se only if the request is ‘equivocal,
untimely, involuntary, or made without a general understanding of the consequences.’” Id. at 202-
03 (emphasis omitted) (quoting State v. Madsen, 168 Wn.2d 496, 505, 229 P.3d 714 (2010)). This
determination entails a multistep process: first the court determines whether the request is
unequivocal and timely, and if it is, then the court asks whether the request is knowing, intelligent
and voluntary. Id. at 203.
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No. 52401-5-II
We review a trial court’s grant or denial of a motion to proceed pro se for abuse of
discretion. Id. at 202. “A trial court abuses its discretion if the decision is manifestly unreasonable
such that no reasonable mind could come to that decision, if the decision is not supported by the
facts, or if the judge applied an incorrect legal standard.” Id. Absent an abuse of discretion, we will
not reverse a trial court’s decision, even if we may have reached a different conclusion on de novo
review. Curry, 191 Wn.2d at 486.1 We accordingly give great deference to the trial court’s
discretion due to the trial court’s experience in evaluating requests to proceed pro se, its favorable
position compared to appellate courts to observe and evaluate the defendant, and the inherently
fact-specific nature of the inquiry. Id. at 484-85.
B. Whether the Trial Court Abused Its Discretion
Sexton argues that the trial court erred in its conclusions that his request to proceed pro se
was untimely, equivocal, and unintelligent. We hold that the record supports the trial court’s
conclusion that Sexton’s request was equivocal, and so the court did not err in denying the request.
1. Whether Sexton’s request was timely and unequivocal
a. Timeliness
The trial court concluded that Sexton’s request to proceed pro se was both untimely and
equivocal. We need only uphold one of those determinations to affirm the trial court’s denial of
Sexton’s motion. See State v. Stenson, 132 Wn.2d 668, 740, 940 P.2d 1239 (1997) (“Even if we
1
Sexton urges us to review this issue de novo, citing Justice Gordon McCloud’s concurrence in
Curry, 191 Wn.2d at 505-11 (Gordon McCloud, J., concurring). However, it is clear from our
Supreme Court’s recent decisions that we are bound to apply an abuse of discretion standard. E.g.,
Burns, 193 Wn.2d at 202.
20
No. 52401-5-II
decided, which we do not, that the request to proceed pro se so late in the proceedings was timely,
we concur with the trial court’s conclusion that the request was equivocal.”).
[T]imeliness is determined on a continuum:
“If the demand for self-representation is made (1) well before the trial or hearing
and unaccompanied by a motion for a continuance, the right of self[-]representation
exists as a matter of law; (2) as the trial or hearing is about to commence, or shortly
before, the existence of the right depends on the facts of the particular case with a
measure of discretion reposing in the trial court in the matter; and (3) during the
trial or hearing, the right to proceed pro se rests largely in the informed discretion
of the trial court.”
Madsen, 168 Wn.2d at 508 (emphasis omitted) (quoting State v. Barker, 75 Wn. App. 236, 241,
881 P.2d 1051 (1994)).
Here, the case was called for trial and motions in limine were addressed. Perhaps because
the trial court denied his motions to exclude evidence, Sexton fired his attorney and sought to
represent himself the next morning just before jury selection was set to begin. The trial court ruled
that Sexton’s request was untimely because Sexton’s request came after the court had called the
case for trial and denied Sexton’s suppression motion, and the court found there was a rational
basis for concluding the request was made primarily for the purpose of delaying the proceedings.
Sexton argues this conclusion was unsupported by the record because he did not seek a
continuance, citing State v. Watkins, 25 Wn. App. 358, 362, 606 P.2d 1237 (1980). There is little
evidence in the record of whether Sexton was trying to delay the proceedings, other than his
indication that he was seeking the assistance of another attorney. Indeed Sexton expressed
frustration at the number of continuances sought by counsel. There accordingly may not be support
in the record for the court’s conclusion that Sexton’s request was intended to cause delay.
Nevertheless, because Sexton’s request was made after the case was called for trial and on
the day that jury selection was set to begin, the trial court had discretion to determine whether
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No. 52401-5-II
granting the request was appropriate. In Madsen, the Supreme Court held that such a request was
timely because the trial court had been given significant advance notice that the defendant wished
to proceed pro se. 168 Wn.2d at 507-08. Here, in contrast, there was no indication such a request
was forthcoming until the day of jury selection. As a result, we afford the trial court significant
discretion to deny the request under Madsen.
b. Equivocation
The trial court separately concluded that Sexton’s request was equivocal because Sexton
indicated that he was hoping to get help from a different attorney in Seattle and said only that “[a]t
this time” he wanted to proceed pro se. 2 VRP (Feb. 15, 2018) at 7. This reasoning is supported
by the record, and in light of the discretion afforded the trial judge, we uphold the trial court’s
denial of Sexton’s motion on this basis.
In determining whether a request is equivocal, courts must examine the nature of the
request. Curry, 191 Wn.2d at 489. “Relevant considerations include whether the request was made
as an alternative to other, preferable options and whether the defendant’s subsequent actions
indicate the request was unequivocal.” Id.
The record supports the trial court’s conclusion that Sexton was equivocal in his request,
especially in light of the necessary deference to the trial court’s evaluation of Sexton’s request
after a long colloquy. Sexton did not file a formal motion, but rather told the court just before jury
selection that he wanted to fire his attorney and represent himself “[a]t this time.” 2 VRP (Feb. 15,
2018) at 7. Sexton said he wanted to proceed pro se, but also discussed at length his frustrations
with the proceeding up to that point and the emotional turmoil he was going through, saying he
was “reluctantly” firing his attorney. Id. at 8. Finally, Sexton did not seek a continuance, and
22
No. 52401-5-II
instead indicated that the reasons he wanted to fire his attorney were his personal disagreements
with the attorney, frustrations over numerous delays in the proceeding, the court’s denial of his
suppression motion, and the fact that he could no longer afford to pay the attorney.
Importantly, Sexton had already attempted to contact an attorney in Seattle that he
indicated would assist him. Although an alternative request for new counsel does not necessarily
render a request to proceed pro se equivocal, it “‘may be an indication to the trial court, in light of
the whole record, that the request is not unequivocal.’” Curry, 191 Wn.2d at 489
(quoting Stenson, 132 Wn.2d at 740-41).
These reasons supported the trial court’s conclusion that Sexton did not necessarily want
to proceed pro se, but merely wanted a different attorney. It was reasonable for the court to
conclude that Sexton was not certain he wanted to proceed pro se for the remainder of his case.
The trial court did not abuse its discretion when it concluded that Sexton’s request was equivocal
and denied his motion to proceed pro se.
III. CONSTRUCTIVE POSSESSION JURY INSTRUCTIONS
Sexton argues that the trial court’s instructions to the jury defining “dominion and control”
as it related to the crimes of possession of methamphetamine and possession of a firearm
constituted an impermissible comment on the evidence. We disagree.
A. Judicial Comments on the Evidence
Article IV, section 16 of the Washington Constitution prohibits judges from conveying to
the jury their personal attitudes regarding the case “or instructing a jury that ‘matters of fact have
been established as a matter of law.’” State v. Jackman, 156 Wn.2d 736, 743-44, 132 P.3d 136(2006) (quoting State v. Becker, 132 Wn.2d 54, 64, 935 P.2d 1321 (1997)). A jury instruction that
23
No. 52401-5-II
“essentially resolve[s] a contested factual issue” amounts to an improper judicial comment because
it “effectively relieve[s] the prosecution of its burden of establishing an element of the [crime].”
State v. Brush, 183 Wn.2d 550, 557, 353 P.3d 213 (2015). In contrast, a jury instruction that merely
states the law does not constitute an impermissible comment on the evidence. Id.We review jury instructions de novo, within the context of the instructions as a whole. State
v. Levy, 156 Wn.2d 709, 721, 132 P.3d 1076 (2006). If we conclude a jury instruction amounted
to an improper comment on the evidence, we presume the error to be prejudicial and the State
bears the burden of showing that no prejudice could have resulted. Id. at 725.
B. Whether the Trial Court’s Instructions on Dominion and Control Were Improper
Sexton argues that the trial court erred in defining “dominion and control” in its jury
instructions on possession of controlled substances and a firearm. The instructions informed the
jury that possession can be actual or constructive, and constructive possession occurs when there
is dominion or control over the item. The jury instructions continued:
In deciding whether the defendant had dominion and control over [an item],
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 [item], whether the defendant had the capacity to exclude others
from possession of the [item], and whether the defendant had dominion and control
over the premises where the [item] was located. No single one of these factors
necessarily controls your decision.
CP at 61, 76. These instructions were based on Washington Pattern Jury Instructions 50.03 and
133.52. 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL
(WPIC) 50.03, 133.52 (2016).
Sexton argues these jury instructions were improper because they defined the contours of
dominion and control by relying on tests developed in case law for evaluating sufficiency of the
24
No. 52401-5-II
evidence. In developing the pattern instructions that established the instructions given in this case,
the Washington Pattern Instructions Committee noted that appellate courts analyze “possession”
in part by deciding whether the evidence was sufficient to convict in a particular case. WPIC 50.03.
Sexton relies on Brush, where the Washington Supreme Court stated that “legal definitions
should not be fashioned out of courts’ findings regarding legal sufficiency.” 183 Wn.2d at 558.
There, the jury was tasked with determining whether the offense was part of an ongoing pattern of
abuse over “‘a prolonged period of time.’” Id. at 555. The trial court used a pattern instruction
defining “a prolonged period of time” as longer than two weeks, based on prior case law that
determined that two weeks was not legally sufficient to be a prolonged period of time. Id. at 557-
58. Brush held that the jury instruction was a comment on the evidence because it resolved a factual
question for the jury and relieved the State of its burden to prove that the pattern of abuse occurred
over a prolonged period of time. Id. at 559.
In State v. Sandoval, we cautioned that Brush’s admonition that legal definitions not be
based on rulings on legal sufficiency “should not be read in isolation.” 8 Wn. App. 2d 267, 279,
438 P.3d 165 (2019). Rather, “the reason for this admonition is because appellate courts review
the sufficiency of evidence for whether any rational jury could have found guilt beyond a
reasonable doubt and construe facts in the light most favorable to the state, while juries must find
guilt beyond a reasonable doubt.” Id. at 278-79. “‘Therefore, fashioning a jury instruction based
on an appellate court’s sufficiency holding effectively replaces the jury standard with the lesser
appellate standard.’” Id. at 279 (quoting State v. Sinrud, 200 Wn. App. 643, 651, 403 P.3d 96(2017)).
25
No. 52401-5-II
In Sinrud, the trial court instructed the jury that to convict the defendant of possession of a
controlled substance with intent to deliver, the law requires substantial corroborating evidence of
such intent. 200 Wn. App. at 650. The instruction continued, “‘The law requires at least one
additional corroborating factor.’” Id. (emphasis omitted). Division One of this court held this last
sentence was a comment on the evidence because it improperly implied that the presence of only
one additional factor necessarily meant that the jury should find intent. Id. at 651.
Sexton argues that the trial court here made the same error as in Sinrud, claiming that by
instructing the jury that no single factor necessarily controls the jury’s decision, the court implied
that a single factor may control the jury’s decision. But unlike Sinrud, the trial court here did not
tell the jury that a certain number of factors was required. Rather, the court told the jury that it did
not even have to consider the factors listed and was free to consider other factors.
Unlike the jury instructions in Brush and Sinrud, the instructions here did not resolve the
factual issue of dominion and control for the jury. Although the instructions were based in part on
sufficiency of the evidence case law, they did not compel the jury to make a specific determination
of whether Sexton had dominion and control over the methamphetamine or the firearm. The
instructions correctly stated that there are several possible indicia of dominion and control, any or
none of which the jury may consider along with all of the relevant circumstances in the case, and
none of which necessarily controlled the jury’s decision. The trial court did not indicate that any
one of the factors listed would be sufficient to convict, and so did not make the same error as the
trial courts in Brush and Sinrud by replacing the jury standard with the lesser appellate standard.
We hold that the challenged jury instructions did not constitute improper judicial comment
on the evidence.
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No. 52401-5-II
IV. SENTENCING ISSUES
A. Incorrect Maximum Sentence
Sexton argues that the trial court improperly sentenced him to 85 months on his conviction
for possession of methylphenidate with intent to deliver, because the maximum sentence on that
count, a class C felony, should have been 5 years, not 10 years. RCW 9A.20.021(1)(c); RCW
69.50.401(2)(c). The State says that the trial court incorrectly identified this conviction as a class
B felony. However, the State argues that Sexton does not need to be resentenced because, based
on his criminal history, the trial court should have doubled the statutory maximum sentence, so 10
years ultimately was the correct maximum sentence.
“Any person convicted of a second or subsequent offense under [chapter 69.50 RCW] may
be imprisoned for a term up to twice the term otherwise authorized.” RCW 69.50.408(1). An
offense is considered a second or subsequent offense if the defendant was ever previously
convicted under chapter 69.50 RCW “or under any statute of the United States or of any state
relating to narcotic drugs, marihuana, depressant, stimulant, or hallucinogenic drugs.” RCW
69.50.408(2). The Washington Supreme Court recently held that RCW 69.50.408 automatically
doubles the maximum sentence. State v. Cyr, 195 Wn.2d 492, 504, 461 P.3d 360 (2020).
Sexton’s criminal history lists multiple prior felony convictions for possession of a
controlled substance. However, it is unclear from the record the statutory basis for these
convictions. In Cyr, the Supreme Court remanded for the trial court to determine whether the
defendant had a qualifying prior conviction under RCW 69.50.408(2). Id. at 511.
We do the same. The trial court should determine on remand whether Sexton’s prior
convictions implicate the statute’s doubling provision. If Sexton’s prior convictions for unlawful
27
No. 52401-5-II
possession of a controlled substance arose under chapter 69.50 RCW “or under any statute of the
United States or of any state relating to narcotic drugs, marihuana, depressant, stimulant, or
hallucinogenic drugs,” then the maximum sentence for his methylphenidate conviction doubled
automatically from 5 years to 10 years and the maximum sentence reflected on the judgment and
sentence, 10 years, is correct. RCW 69.50.408(2). If not, the sentence imposed for count II, 85
months, would exceed the statutory maximum of 5 years and resentencing would be required.
B. Condition of Community Custody
Sexton next challenges the trial court’s community custody order that Sexton have no
contact with drug users or sellers. Sexton reasons that the record makes clear that the trial court
intended to forbid him from knowingly associating with drug users or sellers. That is what the State
requested and what the court stated it would order. The State concedes that the trial court erred in
this regard and agrees we should remand to correct this community custody provision.
It is clear from the record that the trial court intended to limit Sexton’s contact only with
those he knows to be drug users or sellers. We remand for the trial court to make this correction.
C. Legal Financial Obligations
Sexton argues the criminal filing fee and DNA collection fee were improperly imposed.
The State concedes that both fees were improper. We agree.
RCW 36.18.020(2)(h) prohibits the imposition of the criminal filing fee if a defendant is
indigent as defined in RCW 10.101.010(3) (a)-(c). RCW 43.43.7541 authorizes the imposition of
a DNA collection fee “unless the state has previously collected the offender’s DNA as a result of
a prior conviction.”
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No. 52401-5-II
The State concedes that the trial court found Sexton indigent, Sexton’s DNA is on file with
the Washington State Patrol Crime Laboratory, and these statutes apply. We accordingly remand
for the trial court to strike the DNA collection fee and criminal filing fee.
Sexton also argues that the trial court improperly imposed a community supervision fee.
RCW 9.94A.703(2)(d) governs supervision fees and states, “Unless waived by the court, as part
of any term of community custody, the court shall order an offender to . . . [p]ay supervision fees
as determined by the [Department of Corrections].” The supervision fee is a discretionary financial
obligation. State v. Lundstrom, 6 Wn. App. 2d 388, 396 n.3, 429 P.3d 1116 (2018), review denied,
193 Wn.2d 1007 (2019).
However, the supervision fee is not a discretionary “cost” merely because it is a
discretionary financial obligation. Rather, the supervision fee fails to meet the RCW 10.01.160(2)
definition of a “cost” because it is not an expense specially incurred by the State to prosecute the
defendant, to administer a deferred prosecution program, or to administer pretrial supervision.
Because the supervision fee is not a “cost” as defined under RCW 10.10.160, the statutes do not
prohibit the trial court from imposing the fee even where a defendant is indigent.
We note, however, that “[t]he barriers that [legal financial obligations] impose on an
offender’s reintegration to society are well documented . . . and should not be imposed lightly
merely because the legislature has not dictated that judges conduct the same inquiry required for
discretionary costs.” State v. Clark, 191 Wn. App. 369, 376, 362 P.3d 309 (2015). We agree that
this important policy should be broadly supported. Therefore, we encourage the trial court on
remand to reexamine the imposition of the supervision assessment fee.
29
No. 52401-5-II
V. STATEMENT OF ADDITIONAL GROUNDS
A. Ineffective Assistance of Counsel
Sexton argues that he received ineffective assistance of counsel in several respects. We
reject each of his arguments.
The Sixth Amendment to the United States Constitution and article I, section 22 of the
Washington Constitution guarantee effective assistance of counsel. State v. Grier, 171 Wn.2d 17,
32, 246 P.3d 1260 (2011). To demonstrate that he received ineffective assistance of counsel,
Sexton must show both that defense counsel’s performance was deficient and that the deficient
performance resulted in prejudice. State v. Linville, 191 Wn.2d 513, 524, 423 P.3d 842 (2018).
Defense counsel’s performance is deficient if it falls below an objective standard of
reasonableness. State v. Estes, 188 Wn.2d 450, 458, 395 P.3d 1045 (2017). Prejudice ensues if the
result of the proceeding would have been different had defense counsel not performed deficiently.
Id. Because both prongs of the ineffective assistance of counsel test must be met, the failure to
demonstrate either prong will end our inquiry. State v. Classen, 4 Wn. App. 2d 520, 535, 422 P.3d
489 (2018).
We strongly presume that defense counsel’s performance was not deficient. State v. Emery,
174 Wn.2d 741, 755, 278 P.3d 653 (2012). To overcome this presumption, the defendant must
show “‘the absence of legitimate strategic or tactical reasons supporting the challenged conduct
by counsel.’” Id. (quoting State v. McFarland, 127 Wn.2d 322, 336, 899 P.2d 1251 (1995)).
1. Stipulation to prior serious offenses
Sexton argues counsel was ineffective for convincing him to stipulate that he had a prior
serious offense, a necessary element for his conviction of first degree unlawful possession of a
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No. 52401-5-II
firearm. See RCW 9.41.040(1)(a). Sexton argues that counsel should have instead requested an
instruction on second degree unlawful possession of a firearm, which does not include the element
of having a prior serious offense. He argues counsel was deficient for failing to argue that his prior
conviction for second degree burglary was not a serious offense and so could not have formed the
basis of raising his firearm conviction to the level of first degree. We reject these arguments.
RCW 9.41.010(27)(a) defines “‘[s]erious offense’” as including “[a]ny crime of violence.”
RCW 9.41.010(4)(a) identifies “second degree burglary” as a crime of violence. It is therefore
clear that Sexton’s prior conviction for second degree burglary qualified as a serious offense for
the purposes of his conviction for first degree unlawful possession of a firearm. Sexton points out
that this definition is inconsistent with RCW 9.94A.030(56), which does not include second degree
burglary in its definition of “‘[v]iolent offense.’” But the applicable definition here is not the one
defining “violent offense” in RCW 9.94A.030(56), but the one defining “crime of violence” under
RCW 9.41.010(4)(a). Counsel was not deficient on this basis.
Sexton also suggests it was improper for the prosecutor to refer to his prior offenses during
the State’s opening statement because Sexton had not yet signed the stipulation at that time, citing
State v. Humphries, 181 Wn.2d 708, 336 P.3d 1121 (2014). He claims therefore that defense
counsel was deficient for failing to contest the existence of a prior serious offense. But the State
had other evidence of Sexton’s criminal history and did not need to rely on Sexton’s stipulation.
Sexton does not explain how, absent his stipulation, the State would have been unable to prove the
existence of a prior serious offense. Sexton therefore has not shown that counsel was deficient or
that this issue would have resolved differently had counsel challenged this particular point.
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No. 52401-5-II
2. Failure to object to prosecutorial misconduct
Sexton next argues that counsel was deficient for failing to object to an alleged instance of
prosecutorial misconduct during the State’s closing argument. We disagree.
Arguments that shift or misstate the State’s burden of proving guilt beyond a reasonable
doubt constitute prosecutorial misconduct. State v. Lindsay, 180 Wn.2d 423, 434, 326 P.3d 125(2014). We review a prosecutor’s closing argument “in the context of the issues in the case, the
total argument, the evidence addressed in the argument, and the jury instructions.” State v. Curtiss,
161 Wn. App. 673, 699, 250 P.3d 496 (2011). “During closing argument, a prosecutor has ‘wide
latitude in drawing and expressing reasonable inferences from the evidence.’” Id. (quoting State v.
Hoffman, 116 Wn.2d 51, 94-95, 804 P.2d 577 (1991)).
Sexton claims the State misstated its burden of proof when it analogized the evidence
presented at trial to pieces of a jigsaw puzzle and explained that the jury’s job was to determine
whether there were enough pieces of the puzzle to find Sexton guilty of the charges beyond a
reasonable doubt. Sexton claims this comment was improper when read together with the State’s
later statement that, similar to the question of possession, the question of whether the crimes
occurred in the state of Washington was not a “close call.” 5 VRP (Feb. 28, 2018) at 16. According
to Sexton, these statements trivialized the State’s burden of proof and constituted misconduct.
An analogy to jigsaw puzzles in closing argument is permissible if the prosecutor “made
no reference to any number or percentage and merely suggested that one could be certain of the
picture beyond a reasonable doubt even with some pieces missing.” Lindsay, 180 Wn.2d at 436.
Such an analogy becomes improper when the prosecutor uses it to somehow quantify the standard
of proof. Id. Here, the prosecutor merely stated that the jury had to determine if enough pieces
32
No. 52401-5-II
were present to find Sexton guilty beyond a reasonable doubt. This was not a misstatement of the
State’s burden of proof under Lindsay.
As for the State’s reference to the element of possession when discussing whether the acts
occurred in Washington, this statement also did not improperly misstate or trivialize the State’s
burden to prove Sexton’s crimes beyond a reasonable doubt. In the context of the prosecutor’s
entire closing argument, it is clear that he was merely arguing that the State had definitively met
its burden to show the elements of possession beyond a reasonable doubt and the acts in question
occurred in Washington. Given the prosecutor’s wide latitude to argue reasonable inferences from
evidence, we hold these comments were not improper. Defense counsel was therefore not deficient
for not objecting.
3. Failure to argue same criminal conduct
Finally, Sexton argues counsel was deficient for failing to argue that some of his prior
convictions constituted same criminal conduct, and Sexton should have been sentenced with a
lower offender score. This argument relies on information outside the record and we do not
consider it.
B. Cumulative Error
Sexton also argues that cumulative error requires reversal, based on the alleged errors he
describes in his SAG. As discussed above, Sexton has not shown that counsel was ineffective.
Because Sexton has not identified any errors, reversal is not required.
CONCLUSION
We affirm Sexton’s convictions. We remand for the trial court to strike the improper legal
financial obligations, reexamine the imposition of the supervision assessment fee, correct the
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No. 52401-5-II
challenged community custody condition to prohibit Sexton from knowingly associating with drug
users or sellers, and determine whether Sexton had a qualifying prior conviction under RCW
69.50.408(2) and resentence him if necessary.
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.
Glasgow, J.
We concur:
Maxa, J.
Sutton, A.C.J.
34