FILED
APRIL 3, 2018
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 34881-4-111
Respondent, )
)
v. )
)
T01111Y D. CANFIELD, ) UNPUBLISHED OPINION
)
Appellant. )
KORSMO, J. -Tommy Canfield appeals his convictions for unlawful possession
of a firearm, possession of a stolen firearm, possession of methamphetamine with a
firearm enhancement, and obstructing a public servant. We reverse the last charge,
affirm the remaining convictions, and remand for further proceedings.
FACTS
Mr. Canfield was arrested in the town of Asotin on the basis of an outstanding
arrest warrant. Law enforcement officers saw Mr. Canfield lying down inside his pickup
truck when they made contact to arrest him on the warrant. One officer called out
"Tommy" and Mr. Canfield sat up. He attempted to start the truck despite an officer's
direction to keep his hands in sight. He then attempted to leave the truck and was
detained.
No. 34881-4-111
State v. Canfield
The officers sought verification of his identity, but Mr. Canfield provided a false
name and denied that he was Tommy Canfield. Officers eventually identified him, after
checking with dispatch, through his tattoos. When an officer tried to handcuff him prior
to removing him from the scene, Mr. Canfield temporarily delayed the process by locking
his hands in an effort to prevent the handcuffing. He was then placed in a patrol car
without first being searched.
During the drive to the jail, Mr. Canfield was repeatedly moving around and
"squirming" in the back seat to the point that he was told to sit still because the officer
feared he was attempting to release his seatbelt or the handcuffs. He continued his
movements, attempting to get his hands in his back pockets, even after arriving at the jail.
Officers then searched his pockets and discovered two packets of suspected controlled
substances. They also discovered eight gun cartridges in his front pockets. He denied
having a gun and insisted that he had the ammunition for an unspecified different reason.
When the officer checked the back seat of the patrol vehicle, she discovered a "very
large" and fully loaded .357 Colt Python revolver underneath the divider between the
front and rear seats.
The gun's owner later identified it as one stolen from his home. Officers unloaded
the gun and placed all 14 shells in a single bag. They testified that the bullets found in
Mr. Canfield's pockets were identical to those removed from the gun.
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The case went to jury trial. The officer testified that she always searched the
vehicle before her shift and again whenever an arrestee leaves the vehicle. The gun was
not present before Mr. Canfield was placed in her car. The court denied motions to
dismiss the stolen firearm and obstructing charges for insufficient evidence. The
defendant did not testify and the defense called no witnesses. The prosecutor suggested
that the court instruct the jury that it could not consider the defendant's failure to testify.
However, defense counsel objected and the prosecutor acceded to that decision. The
court did not instruct the jury on that topic. The parties stipulated to the instructions
given by the court.
In closing argument, the prosecutor twice postulated possible defense arguments
and noted that no testimony had been presented in support of either one. In closing,
defense counsel made a "mystery bullet" argument, speculating that there might have
been a mix-up resulting in a mystery bullet being removed from evidence and placed
elsewhere. After noting in rebuttal that no evidence supported the theory, the prosecutor
also pointed out that no explanation was given for the matching bullets found in Mr.
Canfield's pockets. After again suggesting some possibilities, the prosecutor once more
stated that jurors had heard no other explanation at trial.
The prosecutor told jurors that Canfield obstructed a public servant in three
different ways-lying about his identity, trying to hide the evidence, and resisting
handcuffing. Report of Proceedings at 275. Defense counsel denied that the actions
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No. 34881-4-111
State v. Canfield
amounted to obstruction. In rebuttal, the prosecutor insisted that there were three
separate actions that constituted obstructing. Id. at 291-292.
The jury returned verdicts of guilty on all four charges and also found a firearm
enhancement on the controlled substance charge had been proven. In a separate hearing,
the jury then heard evidence on an aggravating factor and concluded that each of the
three felony offenses had been committed shortly after release from prison. At
sentencing, the State calculated the offender score at 13 on the methamphetamine charge
due to 10 prior felony convictions, 2 points for the other current convictions, and 1 point
for being on community custody at the time of the new crimes. The prosecutor also
posited a score of 12 for the weapons offenses. Defense counsel told the court that he
agreed with the prosecutor's computation of the standard ranges for each offense.
The prosecutor sought an exceptional sentence by having all three felony offenses
run consecutively to each other, and also noted that the firearm enhancement would run
consecutively by law. Defense counsel argued against an exceptional sentence. The trial
court imposed an exceptional sentence by running the two weapons offenses concurrent
with each other, but consecutive to the controlled substance conviction. All time served
prior to sentencing was applied to the obstructing count, which also was consecutive to
the other sentences.
The court heard from Mr. Canfield that he had trained horses since he was 15.
The court imposed standard mandatory legal financial obligations (LFOs), assessed a
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No. 34881-4-111
State v. Canfield
$2,000 drug fine, and imposed discretionary LFOs totaling $1,010 for service fees and
public defense costs.
Mr. Canfield timely appealed to this court. A panel considered the matter without
hearing argument.
ANALYSIS
This appeal presents numerous issues which we address in a different order than
raised by appellant. In order, we consider whether the prosecutor committed misconduct
in closing argument, whether a nexus was established between the firearm and the drug
possession count, whether the offender score was properly calculated, whether there
needed to be a unanimity instruction on the obstructing count, whether the LFOs were
properly imposed, and whether appellate costs should be waived.
Prosecutor's Closing Argument
Mr. Canfield argues that the prosecutor violated his privilege to remain silent by
commenting on different possible defense theories that were not supported by the
evidence. Although the arguments did skate close to the line, there was no error.
The standards governing this challenge are well settled. The appellant bears the
burden of demonstrating prosecutorial misconduct on appeal and must establish that the
conduct was both improper and prejudicial. State v. Stenson, 132 Wn.2d 668, 718, 940
P.2d 1239 (1997). Prejudice occurs where there is a substantial likelihood that the
misconduct affected the jury's verdict. Id. at 718-719. The allegedly improper
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No. 34881-4-III
State v. Canfield
statements should be viewed within the context of the prosecutor's entire argument,the
issues in the case,the evidence discussed in the argument, and the jury instructions. State
v. Brown, 132 Wn.2d 529,561,940 P.2d 546 (1997).
Prosecutors can properly draw reasonable inferences from the evidence admitted
at trial and argue those inferences to the jury. State v. Hoffman, 116 Wn.2d 51,94-95,
804 P.2d 577 (1991); State v. Hale, 26 Wn. App. 211,216,611 P.2d 1370 (1980). The
prosecutor also can respond to the defense presentation and argue that the evidence does
not support the defendant's theory of the case. State v. Russell, 125 Wn.2d 24,87,882
P.2d 747 (1994). "Mere appeals to jury passion and prejudice, as well as prejudicial
allusions to matters outside the evidence,are inappropriate." State v. Belgarde, 110
Wn.2d 504,507,755 P.2d 174 (1988). However,the defendant must object to the
prosecutor's allegedly improper argument to preserve a claim of error unless the
argument was so "flagrant and ill intentioned that no curative instructions could have
obviated the prejudice." Id.
It has long been the rule in this state that the prosecutor can argue "that certain
testimony is undenied,without reference to who may or may not be in a position to deny
it." State v. Litzenberger, 140 Wash. 308,311,248 P. 799 (1926). Prosecutors may also
comment on the defense's failure to present evidence on a particular issue if someone
other than the defendant could have testified to the issue. State v. Ashby, 77 Wn.2d 33,
38,459 P.2d 403 (1969).
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No. 34881-4-111
State v. Canfield
Here, there were no objections raised at trial to the comments Mr. Canfield now
challenges. Hence, he can establish misconduct only if the remarks were so ill
intentioned that an objection could not have cured them. Belgarde, 110 Wn.2d at 507.
Mr. Canfield has not satisfied that demanding standard.
First, it is important to note that the "mystery bullet" argument was created by the
defense in closing argument and the prosecutor was quite free to point out that no
evidence supported the claim. Russell, 125 Wn.2d at 87. A slightly different problem
exists with respect to the other arguments.
In those instances, the prosecutor, without objection, speculated on certain
possibilities and pointed out that no evidence supported the claims. Although in each
instance that was a correct view of the evidence, it is still a potentially dangerous
argument for the prosecutor to make. The court may not give an instruction on an
affirmative defense over defendant's objection. E.g., State v. Coristine, 177 Wn.2d 370,
300 P.3d 400 (2013) (error to give reasonable belief instruction over defense objection).
Similarly, the State should not be suggesting defense arguments that the defense is not
itself proposing. This comes close to suggesting that the defendant had an obligation to
present evidence or argument; he does not. Here, no instructions were given and this
case does not arise to the level of the unwanted defense at issue in Coristine. Moreover,
a timely objection would have allowed the court to remind the jury that the defense bore
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No. 34881-4-111
State v. Canfield
no burden. If there was any error here at all, it simply was not so prejudicial that it could
not have been cured. 1
Mr. Canfield has not established that the prosecutor's unchallenged arguments
amount to prejudicial error. The misconduct claim is without merit.
Nexus between Firearm and Controlled Substances
Mr. Canfield next argues that the prosecutor failed to establish a nexus between
the firearm and the controlled substances, thus contending that the firearm enhancement
was improper. Since the evidence suggested that Mr. Canfield actually possessed the gun
and the drugs at the same time, no nexus needed to be established.
Whenever a firearm enhancement is based on constructive possession of the
weapon, there must be a showing of a nexus between the gun, the crime, and the
defendant. E.g., State v. Brown, 162 Wn.2d 422, 431-432, 173 P.3d 245 (2007); State v.
Schelin, 147 Wn.2d 562, 567-568, 55 P.3d 632 (2002). That rule does not apply to
situations of actual possession of a firearm during a crime. See State v. Hernandez, 172
Wn. App. 537, 544-545, 290 P.3d 1052 (2012), review denied, 177 Wn.2d 1022 (2013)
(discussing cases).
1
In light of the reversal of the obstructing count, comments by the prosecutor
concerning that offense need not be separately addressed here.
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No. 34881-4-III
State v. Canfield
Here, the defendant had actual possession of the firearm and the drugs at the same
time-both items were on his person at the time he was placed in the police vehicle. The
State presented circumstantial evidence that Mr. Canfield actually possessed the gun
based on his movements during the ride and the subsequent discovery of the gun at his
feet. The trier of fact was permitted to infer actual possession of the gun and the drugs at
the same time. No nexus was required.
The evidence supported the enhancement finding.
Offender Score
Mr. Canfield next argues that the court erred in calculating the offender score,
claiming that his prior history was not proved. Because the defense agreed with the
prosecutor's summary of criminal history and the resulting standard ranges, this
challenge is waived.2
It is the State's burden to prove criminal history at sentencing. State v. Ford, 137
Wn.2d 472, 480, 973 P.2d 452 (1999). However, that burden is relieved if the defendant
affirmatively acknowledges the alleged criminal history. State v. Hunley, 175 Wn.2d
901, 917, 287 P.3d 584 (2012). That is what the defense did here. When presented with
the summary of criminal history, and an offer to present certified copies of the prior
2
The prosecutor advised the court that he had certified copies of the prior
convictions available in the event they were needed. Clerk's Papers at 120.
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No. 34881-4-111
State v. Canfield
convictions,defense counsel told the court that he agreed with the computation of the
ranges.
This was sufficient acknowledgement to relieve the State of having to do more.
The trial court did not err by agreeing with the offender scores calculated by the parties
and the ensuing high end ranges for each offense.3
The sentencing challenge was waived.
Obstructing Charge
Mr. Canfield next argues that his right to a unanimous verdict on the obstructing
charge was violated by the failure of the prosecutor to either elect which action he was
relying on or propose a unanimity instruction. A majority of the court agrees with this
argument and reverses the obstruction charge.
Where the evidence shows multiple acts occurred that could constitute the charged
offense,the State must either elect which act it relies on or the jury must be instructed that
it must unanimously agree on which act it found. State v. Petrich, 101 Wn.2d 566,572,
683 P.2d 173 (1984). Constitutional error occurs if there is no election and no unanimity
instruction is given. State v. Bobenhouse, 166 Wn.2d 881,893,214 P.3d 907 (2009); State
3In the event that Mr. Canfield believes he can show that some of his prior
offenses were used in error,he is free to present his evidence and argument at the next
sentencing hearing. However,the State is not under any obligation to again prove the
offenses unless it desires to address a defense argument.
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No. 34881-4-111
State v. Canfield
v. Kitchen, 110 Wn.2d 403,411,756 P.2d 105 (1988). This type of error requires a new
trial unless shown to be harmless beyond a reasonable doubt. State v. Camarillo, 115
Wn.2d 60,64,794 P.2d 850 (1990).
However,no election or unanimity instruction is needed if the defendant's acts
were part of a continuing course of conduct. State v. Handran, 113 Wn.2d 11,17,775
P.2d 453 (1989). Appellate courts must "review the facts in a commonsense manner to
decide whether criminal conduct constitutes one continuing act." State v. Fiallo-Lopez,
78 Wn. App. 717,724,899 P.2d 1294 (1995). A continuing course of conduct exists
when actions promote one objective and occur at the same time and place. Petrich, 101
Wn.2d at 571; State v. Love, 80 Wn. App. 357,361,908 P.2d 395 (1996).
Although this author believes that this fact pattern involves a continuing course of
conduct,thus negating the unanimity issue,a majority believes that this case was treated
as a multiple acts case and needed a unanimity instruction. For that reason,the
conviction is reversed.
Additionally,this court recently decided that passive resistance to handcuffing
does not constitute obstructing a public servant. State v. D.E.D., 200 Wn. App. 484,496,
402 P.3d 851 (2017).4 Because that type of evidence was presented to the jury here,and
was argued as a basis for conviction,the jury may have relied on an insufficient
4
D.E.D. was released after the trial in this case.
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No. 34881-4-III
State v. Canfield
evidentiary theory to support its verdict. Reversal is required for that reason. State v.
Maupin, 63 Wn. App. 887, 822 P.2d 355 (1992).
The conviction for obstructing a public servant is reversed. Whether or not the
State elects to retry the obstructing count, a new sentencing hearing is required. If there
is no obstructing conviction, the trial court must reallocate the credit for time served prior
to sentencing to the felony offenses. In the event that the charge is retried and a
conviction again ensues, a sentence would have to again be imposed for the offense. In
either instance, Mr. Canfield will need to be resentenced.
LFOs
Mr. Canfield next argues that the trial court conducted an insufficient inquiry
before imposing the discretionary LFOs. Because this matter must be remanded for
resentencing, he is free to pursue this claim at that hearing. Accordingly, we do not
otherwise address this argument.
Costs on Appeal
Lastly, Mr. Canfield asks that we waive appellate costs. Since he has prevailed to
the extent of earning a new trial, the State is not a prevailing party. No costs will be
awarded. RAP 14.2.
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No. 34881-4-111
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Affirmed in part and reversed in part.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
WE CONCUR:
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Lawrence-Berre C.J.
13