State v. Schechert

STATE OF WASHINGTON, Respondent, v. RYAN J. SCHECHERT, Appellant.

No. 46459-4-II

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II

May 3, 2016

UNPUBLISHED OPINION

SUTTON, J. — Ryan Jacob Schechert appeals from his convictions for possession of a controlled substance (methamphetamine) and bail jumping. Schechert argues that (1) he received ineffective assistance of counsel because counsel failed to research the relevant law regarding constructive possession and "other suspect" evidence, and failed to reasonably investigate to discover the owner of the drugs, (2) the prosecutor committed misconduct during closing by arguing that the jurors could find that Schechert's excuse for his bail jumping defense was not a "legal defense," (3) the trial court erred when it admitted evidence of Schechert's prior drug use and (4) erred in imposing legal financial obligations (LFOs) as a condition of sentence without inquiring into his ability to pay.

We hold that (1) Schechert's counsel provided effective assistance, (2) the prosecutor did not commit misconduct during closing argument, and (3) the trial court did not err when it admitted testimony about Schechert's prior drug use to establish his knowledge of the presence of the methamphetamine found in his house. Further, (4) we exercise our discretion, review the trial court's imposed discretionary LFOs, and hold that the trial court failed to conduct an individualized inquiry into Schechert's ability to pay as required under RCW 10.01.160(3) and Blazina.¹ Thus, we affirm Schechert's convictions, but remand to the trial court to conduct an individualized inquiry into his current and future ability to pay as required under RCW 10.01.160(3).

FACTS

I. DRUG POSSESSION

On June 5, 2013, Kitsap County Sheriff's Department executed a search warrant for Ryan Schechert's home on Sidney Avenue in Port Orchard, Washington. When officers arrived at the residence, they encountered a man in the driveway who identified himself as CH.² Officers made contact with the homeowner, Ryan Schechert, and entered the house. Schechert was in the middle of moving to another residence, but still slept at his home on Sidney Avenue, had been subletting the property and cleaning it up, and had allowed a number of people to store their belongings there.

When conducting a search of the master bedroom, the "orange room," Detective Gerald Swayze discovered a roughly textured gold makeup compact containing methamphetamine. III Verbatim Report of Proceedings (VRP) at 192. Next to the compact was Schechert's wallet, identification, various pieces of mail addressed to Schechert, and a traffic citation with Schechert's name on it. The room was messy, and Swayze noted men's clothing among the various items in the room.

Police arrested Schechert and charged him with one count of possession of a controlled substance.

II. BAIL JUMPING

On February 10, 2014, Schechert was living at his uncle's residence with his cousin and uncle. Schechert's uncle was temporarily in an assisted living facility while he recovered from heart surgery. On February 10, Schechert's cousin woke him up in a "panic state" and told Schechert that he needed to "[g]et this place safe for [his uncle]," because the assisted living facility was releasing the uncle that morning. III VRP at 276. After Schechert's cousin dropped his uncle off, the cousin was out running errands until about 2:30 p.m., leaving Schechert to change his uncle's bandages and ensure that his uncle was comfortable.

Schechert had a court appearance scheduled for that morning for which he failed to appear, and did not attempt to contact the court or his attorney until the next day. On February 13, the next court hearing to quash the bench warrant issued after Schechert's failure to appear, Schechert's attorney told the court that he failed to appear due to an "honest mistake." III VRP at 304. During the hearing, Schechert did not explain that he was caring for his uncle that day because the judge did not allow him to speak.

The State amended the charges to add one count of bail jumping.

III. TRIAL

At trial, Schechert asserted unwitting possession as a defense to his possession charge. Schechert alleged that the makeup compact belonged to another person and denied knowing that the makeup compact was in the house or ever having seen it before. To rebut Schechert's unwitting possession defense, the State moved to admit, under ER 404(b), CH's testimony that shortly beforethe June 5 search warrant, that he and Schechert had smoked methamphetamine at Schechert's house, and that Schechert retrieved the methamphetamine and pipe from a back room.

The trial court initially reserved its ruling, but after additional testimony, argument, and an offer of proof by the State as to CH's expected testimony, the trial court admitted the testimony for the limited purpose of demonstrating Schechert's knowledge that the drugs were in the house. The trial court gave a limiting instruction to the jury.³

During closing, the prosecutor argued that Schechert's reason for failing to appear in court on February 10 was not a valid legal defense. The prosecutor made the following remarks,

The defense [to bail jumping] is laid out for you, I believe it's Instruction No. 17.⁴ That defense includes a number of categories of [the] kind of excuses that our legislature recognizes. It's not necessarily an exclusive list, but it gives you anidea of the kind of things that -- the system we recognize -- as a valid reason to have a legal defense for missing court on a particular day.

. . . .

I would like you to think about. . . . whether or not you believe that [Schechert's excuse that he missed his court date to attend to his uncle] even qualifies as a legal defense to a bail-jumping charge.

. . . .

You'll notice that one of the defenses is not "I forgot." Or, "I got confused as to the dates." He's not asking you to find that because that's not a legal defense to this, as you can see, in your Instruction No. 17.

. . . .

[An act of nature, an emergency medical condition, or act of man] are the kind of things for which our society has recognized there's a legal defense to not showing up for your trial date.

. . . .

[Even if Schechert's excuse is true, needing to care for a sick uncle] it doesn't qualify as a legal defense. There's certain things we're willing to recognize. This doesn't fall into any of those categories.

IV VRP 413, 418-19. Schechert did not object to these remarks during closing.

IV. SENTENCING

At sentencing, the trial court imposed LFOs on Schechert as a condition of sentencing.⁵ Schechert did not object to the imposition of the LFOs. Schechert appeals.

ANALYSIS

I. INEFFECTIVE ASSISTANCE OF COUNSEL

Schechert argues that he was denied effective assistance of counsel because his attorney failed to (1) research and know the relevant law on constructive possession and the law of "other suspect" evidence and (2) reasonably investigate who owned the makeup compact where the methamphetamine was found and discover that the initials "KMM" were inscribed in it. Schechert argues that the deficient performance prejudiced him. Schechert's claim of ineffective assistance fails.

We review an ineffective assistance of counsel claim de novo, and presume that counsel's performance was adequate and reasonable. Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Grier, 171 Wn.2d 17, 33, 246 P.3d 1260 (2011). To prevail on a claim of ineffective assistance of counsel, the appellant must show that counsel's performance was deficient and that "'there is a reasonable probability that, but for counsel's deficient performance, the outcome of the proceedings would have been different.'" Grier, 171 Wn.2d at 34 (quoting State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009)). Deficient performance is that which falls "below an objective standard of reasonableness." Strickland, 466 U.S. at 688. Reasonable conduct for an attorney includes carrying out the duty to research the relevant law. Kyllo, 166 Wn.2d at 862 (citing Strickland, 466 U.S. at 690-91). Conduct categorized as legitimate trial tactics or strategies is not deficient performance. Grier, 171 Wn.2d at 33.

A. CONSTRUCTIVE POSSESSION

Schechert argues that trial counsel "unreasonably failed to research law relevant to the issue of constructive possession." Br. of Appellant at 14. We disagree.

Constructive possession is the exercise of dominion and control over an item, and is established by viewing the totality of the circumstances, including the proximity of the property and ownership of the premises where the contraband was found. State v. Enlow, 143 Wn. App. 463, 468, 178 P.3d 366 (2008) (citing State v. Callahan, 77 Wn.2d 27, 29-30, 459 P.2d 400 (1969); State v. Turner, 103 Wn. App. 515, 522-23, 13 P.3d 234 (2000)). However, exclusive control of the premises is not necessary to establish constructive possession but mere proximity is not enough. Enlow, 143 Wn. App. at 469.

Here, Schechert owned the home on Sidney Avenue, slept there, sublet it, and allowed "a number of other people" to store things in his home. III VRP at 310. Law enforcement found mail, Schechert's wallet, and a traffic citation bearing Schechert's name and identification in the orange room next to the methamphetamine. All of these facts establish that Schechert had dominion and control over the premises.

Although Schechert alleges that his counsel failed to argue that the compact belonged to someone else, counsel did elicit testimony from Schechert that he had men and women over at his house "[a]ll the time, every night" and that he did not know the compact containing the methamphetamine was in the back bedroom. III VRP at 271. Also, counsel argued that Schechert did not know that the methamphetamine was in his home, that the compact was in a messy room, and that numerous other people were often in the house and left their belongings there. During the State's...