2015 APR 20 AH 9:22
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 71004-4-1
Respondent, DIVISION ONE
v.
CHRISTOPHER R. DABALOS, UNPUBLISHED
Appellant. FILED: April 20. 2015
Cox, J. - Christopher Dabalos appeals his judgment and sentence for his
conviction of unlawful possession of a firearm in the first degree. The State
presented sufficient evidence to prove that Dabalos constructively possessed the
firearm. Dabalos fails in his burden to show that his trial counsel provided
ineffective assistance. And the prosecutor's arguments do not warrant reversal.
We affirm.
The material facts are largely undisputed. In March 2011, Auburn police
executed a search warrant at a house in Renton. The house was a two-story
residence with at least three bedrooms. Four people, including Dabalos, were in
the living room of the house at the time the warrant was served.
During their search of the master bedroom, officers found several items
belonging to Dabalos. These items included his wallet and some identification
cards.
No. 71004-4-1/2
In a closed wooden trunk in the master bedroom, officers found an AK-47
rifle and magazines. Also inside the trunk, officers found a temporary driver's
license belonging to Dabalos and a bill addressed to Dabalos at a different
address.
The State charged Dabalos with unlawful possession of a firearm in the
first degree.
The case proceeded to a jury trial. Dabalos stipulated that he had
previously been convicted of a serious offense, satisfying an element of this
charged offense. He did not testify or present any evidence. The jury convicted
Dabalos as charged.
Thereafter, Dabalos obtained new counsel and moved for a new trial on
the ground of ineffective assistance of counsel. He asserted that substantial
justice was not done in his case because "he was convicted when two
eyewitnesses with exculpatory evidence were not interviewed and did not testify
for the defense at trial." In support of this claim, he obtained declarations from
two people, Michael Monroe and Paula Hopper, who lived at the house when
authorities executed the search warrant.
Dabalos also moved for an arrest of judgment, arguing that there was
insufficient evidence to prove two material elements of the crime charged—that
Dabalos had possession of the gun, or, that he had knowledge he possessed
someone else's gun.
The court orally denied both motions. It sentenced Dabalos to an 87-
month standard-range sentence.
No. 71004-4-1/3
Dabalos appeals.
SUFFICIENCY OF THE EVIDENCE
Dabalos first argues that the State did not prove beyond a reasonable
doubt that he committed the crime of unlawful possession of a firearm in the first
degree. Specifically, he contends that the State did not prove that he knowingly
owned, possessed, or controlled the rifle found in the Renton house. We
disagree.
Due process requires the State to prove beyond a reasonable doubt all
the necessary facts of the crime charged.1 "The test for determining the
sufficiency of the evidence is whether, after viewing the evidence in the light most
favorable to the State, any rational trier of fact could have found guilt beyond a
reasonable doubt."2 "[A]ll reasonable inferences from the evidence must be
drawn in favor ofthe State and interpreted most strongly against the defendant."3
"A claim of insufficiency admits the truth of the State's evidence and all
inferences that reasonably can be drawn therefrom."4
Under RCW 9.41.040(1), a person is guilty of the crime of unlawful
possession ofa firearm in the first degree if the person owns, has in his or her
possession, or has in his or her control any firearm after having previously been
1 State v. Colquitt, 133 Wn. App. 789, 796, 137 P.3d 892 (2006).
2 State v. Salinas. 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
31pL
4 Id.
No. 71004-4-1/4
convicted of any serious offense. The State must prove that the defendant
knowingly owned, possessed, or controlled the firearm.5
Dabalos stipulated at trial that he had previously been convicted of a
serious offense. Thus, the issue is whether there was sufficient evidence to
establish that he knowingly owned, possessed, or controlled the firearm.
Possession may be either actual or constructive.6 A person actually
possesses something that is in his or her physical custody.7 A person
constructively possesses something that is not in his or her physical custody but
is still within his or her "'dominion and control.'"8
"Evidence of temporary residence, personal possessions on premises, or
knowledge of presence of [contraband], without more, [are] insufficient to show
dominion and control."9 Dominion and control need not be exclusive to establish
constructive possession, but a showing of more than mere proximity to the
contraband is required.10
Constructive possession is established by examining the totality of the
circumstances and determining ifthere is substantial evidence from which a jury
5 State v. Anderson. 141 Wn.2d 357, 359, 5 P.3d 1247 (2000).
6 State v. Raleigh. 157 Wn. App. 728, 737, 238 P.3d 1211 (2010).
7 State v. Davis. 182 Wn.2d 222, 227, 340 P.3d 820 (2014).
8]dL (quoting State v. Callahan. 77 Wn.2d 27, 29, 459 P.2d 400 (1969)).
9 State v. Collins. 76 Wn. App. 496, 501, 886 P.2d 243 (1995) (emphasis
omitted).
10
State v. Hagen. 55 Wn. App. 494, 498-99, 781 P.2d 892 (1989).
No. 71004-4-1/5
can reasonably infer the defendant had dominion and control over the item.11 "In
determining dominion and control, no one factor is dispositive."12
The ability to reduce an object to actual possession is one factor for
determining dominion and control.13 Another factor is whether a person had
dominion and control of the premises where the contraband was found.14
In State v. Cantabrana. this court stated that when the sufficiency of the
evidence is challenged on the basis that the State has only shown dominion and
control over the premises, and not over the contraband, "courts correctly say that
the evidence is sufficient because dominion and control over [the] premises
raises a rebuttable inference of dominion and control over the [contraband]."15
Here, Dabalos was in the house when the officers executed the warrant
early one morning. During the search, officers found several of Dabalos's
personal possessions in the master bedroom of the house. On the floor of the
master bedroom, officers found Dabalos's wallet. It contained his Washington
State driver's license, various other documents, credit cards, and some cash.
Under the bed in the master bedroom, officers found an expired Washington
State driver's license belonging to Dabalos. On top of the wooden chest where
the firearm was found, officers found a Department of Corrections identification
11 Collins. 76 Wn. App. at 501.
12 Id,
13 State v. Chouinard. 169 Wn. App. 895, 899, 282 P.3d 117 (2012).
14 State v. Tadeo-Mares, 86 Wn. App. 813, 816, 939 P.2d 220 (1997).
15 83 Wn. App. 204, 208, 921 P.2d 572 (1996).
No. 71004-4-1/6
card belonging to Dabalos. And inside the trunk, underneath the rifle, officers
found other items belonging to Dabalos. Specifically, they found a temporary
driver's license from 2009 and a bill addressed to Dabalos at a different address.
This evidence shows that Dabalos had dominion and control over the
master bedroom where police found the firearm. This proof of dominion and
control over the master bedroom raises a rebuttable inference of dominion and
control over the firearm found in this case.16 Noticeably absent from this record
is any evidence that would support an argument that the presumption of
dominion and control of the firearm that arises from dominion and control over
the master bedroom has been rebutted. This is telling.
Dabalos properly admits that "the State proved that [he] was in the home
when the search warrant was executed and that his wallet, driver's license,
temporary driver's license, DOC identification, and a bill were in the bedroom
where the gun was found."17 He argues, "At most, the State proved that [he] may
have lived in the bedroom along with [another person]."18 However, these
observations show much more. They establish a rebuttable presumption of
constructive possession of the firearm.
The State also argues that Dabalos could have easily actually possessed
the firearm "by simply opening the unlocked trunk."19 This observation is correct
16 Id
17 Brief of Appellant at 7.
18 Id,
19 Brief of Respondent at 8.
No. 71004-4-1/7
and further supports the conclusion that the evidence supports constructive
possession of the firearm by Dabalos.
Dabalos argues that constructive possession "requires proof that the
defendant had control over the firearm itself, not just the place where it was
located."20 But in this case, the State proved that Dabalos had dominion and
control over the master bedroom and that Dabalos could have easily reduced the
firearm to actual possession by opening the unlocked trunk. This is sufficient to
prove control over the firearm itself. Thus, this argument is not persuasive.
Dabalos distinguishes this case from State v. Echeverria.21 In that case,
Division Three affirmed Jose Echeverria's conviction for unlawful possession of a
firearm when he was found driving a car with a firearm sticking out from
underneath the driver's seat.22 Dabalos asserts that, in contrast to Echeverria.
the gun in this case was not visible. But this distinction is immaterial. The State
presented sufficient evidence in this case to show constructive possession of the
firearm for the reasons we have already discussed. Dabalos's reliance on
Echeverria is misplaced.
In sum, the evidence was sufficient.
20 Brief of Appellant at 7.
21 Id at 8 (citing State v. Echeverria. 85 Wn. App. 777, 779-80, 934 P.2d
1214(1997)).
22 Echeverria. 85 Wn. App. at 783.
No. 71004-4-1/8
INEFFECTIVE ASSISTANCE OF COUNSEL
Dabalos next argues that the trial court erred by denying his motion for a
new trial based on ineffective assistance of counsel. He claims that his attorney
was ineffective for failing to call two potential witnesses "who would have
provided exculpatory testimony" and for failing to investigate these two
witnesses. We disagree.
This court reviews a trial court's denial of a motion for a new trial for abuse
of discretion.23
The right to counsel includes the right to effective assistance of counsel.24
In order to prevail on an ineffectiveness claim, the defendant must prove that (1)
counsel's performance was deficient and (2) the defendant was prejudiced by the
deficient performance.25 Counsel's performance was deficient if it fell below "an
objective standard of reasonableness."26 The defendant was prejudiced ifthere
is "a reasonable probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different."27 "A reasonable probability
is a probability sufficient to undermine confidence in the outcome."28
23 State v. Holm. 91 Wn. App. 429, 435, 957 P.2d 1278 (1998).
24 Strickland v. Washington. 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984).
25 Id, at 687; State v. McFarland. 127 Wn.2d 322, 334-35, 899 P.2d 1251
(1995).
26 Strickland. 466 U.S. at 688.
27 id, at 694.
28 Id.
8
No. 71004-4-1/9
"Deficient performance is not shown by matters that go to trial strategy or
tactics."29 Reviewing courts make "every effortto eliminate the distorting effects
of hindsight and must strongly presume that counsel's conduct constituted sound
trial strategy."30 "'An attorney's action or inaction must be examined according to
what was known and reasonable at the time the attorney made his choices."'31 In
reviewing such claims, this court engages in a strong presumption that trial
counsel was effective.32
"Deciding whether to call a witness is a matter of legitimate trial tactics
that presumptively does not support a claim of ineffective assistance of
counsel."33 A defendant can overcome this presumption by showing that counsel
failed to adequately investigate or prepare for trial.34
"[C]ounsel has a duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations unnecessary."35 "The
reasonableness of counsel's actions may be determined or substantially
29 State v. Saunders. 91 Wn. App. 575, 578, 958 P.2d 364 (1998).
30 In re Pers. Restraint of Rice. 118Wn.2d 876, 888-89, 828 P.2d 1086
(1992).
31 In re Pers. Restraint of Davis. 152 Wn.2d 647, 722, 101 P.3d 1 (2004)
(quoting Hendricks v. Calderon. 70 F.3d 1032, 1036 (9th Cir. 1995)).
32 McFarland. 127 Wn.2d at 335.
33 State v. Davis. 174 Wn. App. 623, 639, 300 P.3d 465, review denied.
178Wn.2d 1012(2013).
34 id,
35 Strickland. 466 U.S. at 691.
No. 71004-4-1/10
influenced by the defendant's own statements or actions."36 "[W]hen the facts
that support a certain potential line of defense are generally known to counsel
because of what the defendant has said, the need for further investigation may
be considerably diminished or eliminated altogether."37 Further, "[W]hen a
defendant has given counsel reason to believe that pursuing certain
investigations would be fruitless or even harmful, counsel's failure to pursue
those investigations may not later be challenged as unreasonable."38
Here, Dabalos fails in his burden to show his that trial counsel provided
ineffective assistance to him.
Dabalos asked his trial counsel to contact Michael Monroe who was
present in the home when Dabalos was arrested. He also told her "that Paula
Hopper was present but that she may have criminal history so he did not want
[trial counsel] to contact her."39 Dabalos told his trial counsel that both Monroe
and Hopper would say that someone named Dennis Bertram was in the house
with a gun and that they heard Dabalos say "get the gun out of here."40
Monroe and Hopper's declarations, obtained after trial, generally confirm
this anticipated testimony. In her declaration, Hopper testified that a few days
prior to the search, Bertram came over to the house and said he had a gun to
36 Id,
37 id,
38 id,
39 CP at 68 (emphasis added).
40 id, (internal quotation marks omitted).
10
No. 71004-4-1/11
keep at the house for a short time. She further stated that she never saw
Dabalos with the gun and that she was "pretty certain" that Dabalos did not know
the gun was in the house or his bedroom.
Monroe, in his declaration, testified that a week before the search,
Bertram brought something into Dabalos's room and a few minutes later,
Dabalos "came down and said something like he didn't mess with guns and to
get that out of here" and then Dabalos left. Monroe stated that Bertram told him
that he needed to keep a gun at the house for a short time and that "[Bertram]
sort of decided it was okay to keep it in a chest in [Dabalos's] room."41 Monroe
further stated, "I went back up there to [Dabalos's] room and [Bertram] put the
gun in a chest."42 He asserted, "[Dabalos] had no part in [Bertram] putting the
gun in the chest and [Dabalos] was already gone when that happened."43
Dabalos's trial counsel stated that the defense in this case was a general
denial of the offense. Specifically, the defense strategy was to show that
Dabalos "had no knowledge of the gun being present in his room and that he did
not have dominion and control over the gun."44 With respect to trial counsel's
decision not to call Hopper as a witness, she stated in her declaration:
Strategically at this point, Ithought it also best not to call Paula
Hopper as a witness due to the fact that her testimony would place
the gun and Mr. Dabalos in the bedroom of the house, which I
41
id. at 119.
42
Id,
43
id. at 68.
44
Id.
11
No. 71004-4-1/12
thought would not be helpful to proving that Mr. Dabalos had no
knowledge of the gunJ45'
Given Dabalos's direction to trial counsel not to contact Hopper because
of the possibility she had a criminal record, it is at least inconsistent for him to
now criticize defense counsel for not doing so. More importantly, trial counsel's
decision not to contact Hopper was objectively reasonable given the testimony
that would have come from her would have strengthened the State's case and
been inconsistent with the general denial defense. Because he fails to establish
the first prong of the test, we need not address the second prong, prejudice.
As for the testimony of Monroe, we reach the same conclusion. It, too,
would have been inconsistent with the general denial defense and would also
have strengthened the State's case. The choice to not pursue investigation and
not call to trial this witness is well within the bounds of objectively reasonable
decisions by defense counsel at trial.
In sum, after looking to all the circumstances and applying "a heavy
measure of deference to counsel's judgments," Dabalos fails to show that trial
counsel's performance was deficient. The trial court properly concluded that
Dabalos's trial counsel made reasonable, strategic decisions not to investigate,
or call as witnesses, Monroe and Hopper. The trial court properly denied
Dabalos's motion for a new trial.
Dabalos argues that the trial court used the wrong legal standard when it
ruled that trial counsel's performance was reasonable based upon the
45 Id. at 70.
12
No. 71004-4-1/13
information that Dabalos provided to her. He cites Strickland for the proposition
that "[a] strategic choice cannot reasonably be made in the absence of a
thorough investigation" and he argues that counsel's duty to investigate extends
beyond investigating the information her client has provided her.46 But Strickland
also expressly recognized that "[counsel's actions are usually based, quite
properly, on informed strategic choices made by the defendant and on
information supplied by the defendant."47 Dabalos gave trial counsel reasons to
believe that pursuing this investigation would be fruitless. Accordingly, this
argument is not persuasive.
Dabalos cites Lord v. Wood, a Ninth Circuit case, to argue that trial
counsel could not make a reasonable decision to call Monroe and Hopper as
witnesses without speaking to them personally.48 But even the Lord court
acknowledged that counsel "is not obligated to interview every witness personally
in order to be adjudged to have performed effectively."49 Instead, where an
attorney does not put a witness on the stand, his or her decision is entitled to less
deference than if he or she interviews the witness.50 Accordingly, while Lord
46 Brief of Appellant at 16 (quoting Strickland. 466 U.S. at 691) (citing
Rompilla v. Beard. 545 U.S. 374, 387-89, 125 S. Ct. 2456, 162 L. Ed. 2d 360
(2005)).
47 Strickland. 466 U.S. at 691.
48 Briefof Appellant at 17 (citing Lord v. Wood. 184 F.3d 1083, 1095 (9th
Cir. 1999)).
49 Lord. 184F.3dat1095n.8.
50 Id.
13
No. 71004-4-1/14
indicates that Dabalos's trial counsel's decision is entitled to less deference
based on her failure to interview Monroe and Hopper, Lord does not stand for the
proposition that this failure is per se deficient.
Dabalos compares this case to State v. A.N.J..51 But that case is
distinguishable. In A.N.J., the defense attorney did little to no investigation or
research into the case, did not follow up with witnesses who could have provided
an alternative explanation for the victim's report, never spoke to the investigating
officer, made no requests for discovery, filed no motions, spent as little as 55
minutes with A.N.J, prior to the plea hearing, did not carefully review the plea
agreement, and did not consult with experts.52 In contrast, Dabalos's trial
counsel was well-informed of the factual and legal issues, interviewed the lead
detective, successfully excluded other evidence found at the house, and pursued
a sound trial strategy. In short, Dabalos's reliance on A.N.J, is not persuasive.
PROSECUTORIAL MISCONDUCT
Dabalos argues that prosecutorial misconduct in closing argument and in
rebuttal denied him his constitutional right to a fair trial. We disagree.
To prevail on a claim of prosecutorial misconduct, the defense bears the
burden of establishing that the prosecutor's conduct was both improper and
prejudicial.53
51 Brief of Appellant at 17-18 (citing State v. A.N.J.. 168 Wn.2d 91, 225
P.3d 956 (2010)).
52 A.N.J.. 168 Wn.2d at 100-02.
53 State v. Emery. 174 Wn.2d 741, 756, 278 P.3d 653 (2012).
14
No. 71004-4-1/15
A prosecutor's closing argument may only address the law as stated in the
trial court's instructions.54 It is misconduct for a prosecutor to argue to the jury in
a manner that removes or reduces its burden of proof of every element of the
crime.55
When defense counsel fails to object to alleged improper conduct, it
constitutes a waiver of any prosecutorial misconduct unless the remark was "so
flagrant and ill intentioned that an instruction could not have cured the resulting
prejudice."56 Under this "heightened standard," the defendant must show that
"(1) 'no curative instruction would have obviated any prejudicial effect on the jury'
and (2) the misconduct resulted in prejudice that 'had a substantial likelihood of
affecting the jury verdict.'"57 "[T]he absence of an objection by defense counsel
'strongly suggests to a court that the argument or event in question did not
appear critically prejudicial to an appellant in the context of the trial.'"58
"Instead of examining improper conduct in isolation, [a reviewing court]
determine^] the effect of the prosecutor's improper conduct by examining that
conduct in the full trial context, including the evidence presented, 'the context of
54 State v. Davenport. 100 Wn.2d 757, 760, 675 P.2d 1213 (1984).
55 State v. Warren. 165 Wn.2d 17, 27, 195 P.3d 940 (2008).
56 Emery. 174 Wn.2d at 760-61.
57 id, at 761 (quoting State v. Thorgerson, 172 Wn.2d 438, 455, 258 P.3d
43(2011)).
58 State v. McKenzie. 157 Wn.2d 44, 53 n.2, 134 P.3d 221 (2006)
(emphasis omitted) (quoting State v. Swan. 114 Wn.2d 613, 661, 790 P.2d 610
(1990)).
15
No. 71004-4-1/16
the total argument, the issues in the case, the evidence addressed in the
argument, and the instructions given to the jury.'"59
Here, Dabalos contends that the prosecutor committed misconduct "by
misstating the elements of the crime, thus reducing the State's burden of proof."60
He first contends that the following statement from closing argument was
improper:
You may have heard the word ownership. The Defendant owned a
firearm.
If you read the instructions carefully, you will see that
actually we don't have to prove that. We don't have to prove the
gun belonged to him. And if you step back and think about it, that
makes sense. Because if you're going to say in the law that if you
have been convicted of a serious offense in your past, you're not
allowed to have a firearm, what kind of law would that be if you
could say, well, yeah, I had it, but I didn't own it.
The law says we don't want the gun in your hands,
period. We don't want the gun within your reach, period. And
so the way the law is written, the way the instructions read, it's
reflective ofthatS^
He next contends that the following statement from rebuttal was improper.
It is [the] fact, not that he made a simple mistake, but that he was
convicted of a serious offense, that means he has no business
being anywhere around a gun, much less having a gun in a
chest in his bedroom.[62]
59 State v. Monday. 171 Wn.2d 667, 675, 257 P.3d 551 (2011) (quoting
McKenzie. 157 Wn.2d at 52).
60 Brief of Appellant at 24.
61 Report of Proceedings (May 14, 2013) at 10-11 (emphasis added).
62 id, at 40 (emphasis added).
16
No. 71004-4-1/17
Dabalos's trial counsel did not object to either statement. Thus, Dabalos
must meet the heightened standard to show prosecutorial misconduct. He fails
to do so.
Assuming, without deciding, that these statements were improper,
Dabalos fails to show that the statements were so flagrant or ill-intentioned that
no curative instruction would have obviated any prejudicial effect on the jury and
that the misconduct had a "substantial likelihood" of affecting the jury verdict.
After each of the statements identified by Dabalos, the prosecutor properly
stated the law and elements in subsequent comments.
Not long after the first statement, the prosecutor stated that the State had
the burden of proving that Dabalos "knowingly had a firearm in his possession or
control."63 Thus, a proper statement of the law and of the burden of proof quickly
followed the first identified statement. Additionally, the prosecutor then continued
on to discuss this element in detail when he summarized the evidence that
proved that Dabalos knowingly had possession or control of the firearm. The
extended discussion of this element also properly reflected the law.
Likewise, not long after the second statement, the prosecutor asked the
jury to find that Dabalos "knowingly had in his possession or control a firearm."64
Thus, a proper statement of the law quickly followed the second identified
statement.
63 id, at 12.
64 Id. at 41.
17
No. 71004-4-1/18
Moreover, on more than one occasion, the prosecutor indicated to the jury
that the instructions in the packet contained the correct statements of the law.
And the prosecutor expressly stated that the written instructions are what
"actually controls."
In sum, Dabalos fails to meet the heightened standard to show
prosecutorial misconduct.
Dabalos compares this case to State v. Gotcher.65 But in that case, the
defense attorney objected to the prosecutor's misstatement and thus, the
heightened standard did not apply.66 In short, that case is distinguishable, and
Dabalos's reliance on it is not persuasive.
Finally, Dabalos argues that a curative instruction would not have
guaranteed that the prejudice caused by the prosecutor's error would be cured.
But for the reasons already discussed, we disagree.
We affirm the judgment and sentence.
Cat, J-
WE CONCUR:
TA J< \*\ ^T"" S/?^^\a^.Cu,
65 52 Wn. App. 350, 759 P.2d 1216 (1988).
66 Id. at 352.
18