State Of Washington, / Cross--app. v. Michael Craig Okler, / Cross-res.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, )
) No. 78750-1 -I
Respondent,
) DIVISION ONE
v. )
MICHAEL CRAIG OKLER, ) UNPUBLISHED OPINION

Appellant. ) FILED: March 9, 2020
__________________________________________________________________________________)

SMITH, J. — Michael Okler appeals his conviction for possession of a

controlled substance. He contends that evidence of methamphetamine found in

his sock should have been suppressed because it was the fruit of an unlawful

seizure. He further contends that the statute under which he was convicted was

unconstitutional and that his trial counsel was ineffective for failing to request an

unwitting possession instruction. Finally, Okler argues that the trial court erred

by ordering him to pay Department of Corrections (DOC) supervision fees and

interest on legal financial obligations.

We affirm but remand to the trial court to strike the DOC supervision fees

and interest on legal financial obligations.

FACTS

On August 6, 2017, Marysville Police Sergeant Matthew Goolsby and

Officers Joseph Belleme and Belinda Paxton responded to a 911 call regarding

suspected drug activity in a recreational vehicle (RV) parked on a public street.

Upon arrival, Sergeant Goolsby parked several blocks away from the RV, but
 No. 78750-1 -1/2

Officer Belleme parked 20 or 30 feet away from the RV. The officers did not

activate their vehicles’ lights or sirens. Officer Belleme approached the front of

the RV and attempted to have a conversation with a woman seated in the driver’s

seat in a conversation. After having difficulty hearing one another, the woman

voluntarily exited the vehicle, and Officer Belleme learned that there were other

individuals in the RV. Officer Belleme then stated, “This is Marysville Police, is

there anybody else in the vehicle? We’d like to talk to you. Can you come out

and talk to us?” Officer Belleme later testified that he did not use an “aggressive

tone.”

Okier exited the RV. At some point thereafter, Officer Belleme made

another announcement to the people in the RV, and two more individuals came

out. Officer Belleme “motioned and asked if [Okier] would come up to the front of

the vehicle where [Officer Belleme] was at, and . . . asked [Okier] what his name

was.” Okler provided his name and date of birth, and while dispatch “ran a check

on [Okler’s] name,” Officer Belleme and Okier “had casual conversation.” Officer

Belleme advised Okler of the purpose of the officers’ visit, namely a report of

drug activity. After about one minute, the results from dispatch came through,

and Officer Belleme learned that there was an outstanding warrant for Okler’s

arrest. At this point, Officer Belleme “told [Okler] to sit down and that he was not

free to leave.” Once the warrant was confirmed, Officer Belleme handcuffed and

formally arrested Okler. He failed to advise Okler of his Miranda rights. “During

[the] search incident to arrest, Officer Belleme asked [Okler] if he had anything

illegal that would affect his admissibility into the jail.” Okier responded that he

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No. 78750-1 -1/3

sold methamphetamine and “indicated he had two grams of methamphetamine in

his left sock.” Officer Belleme located the methamphetamine in Okler’s sock.

The State charged Okler with possession of a controlled substance,

methamphetamine, under RCW69.50.4013 (the possession statute). Prior to

trial, Okler moved to suppress the drug evidence obtained during his arrest,

arguing that Okler was unlawfully seized when Officer Belleme “ordered” him out

of the RV. Meanwhile, the State moved to admit Okler’s pre- and postarrest

statements to Officer Belleme. Following a CrR 3.5 and CrR 3.6 hearing, the trial

court concluded that Okler voluntarily exited the RV, that the officers did not

compel him to do so, and that he was not unlawfully seized. The court thus

denied Okler’s motion to suppress the drug evidence found in his sock. The

court also concluded that because Okler was not in custody until Officer Belleme

told him to sit on the curb, any statements that Okler made up to that point were

admissible. However, the court concluded that because Okler was not given

Miranda warnings after he was told to sit on the curb, his subsequent statements

that he had methamphetamine in his sock and that he sold methamphetamine

were inadmissible except for impeachment purposes.

At trial, Okler testified that he remembered “[v]ery little” of the morning of

his arrest because he “had just gotten out of the hospital from a drug overdose.”

He testified that one of the women in the RV “grabbed [his] feet and pulled them

up towards her and said, why don’t you just put your feet up and relax.” He

testified that he did not recall having anything, much less a controlled substance,

in his sock. Okler testified that he did not remember telling Officer Belleme that

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No. 78750-1 -114

he had “anything on [his] person” or that he sold drugs.

The court gave a standard jury instruction, consistent with 11 Washington

Practice: Washington Pattern Jury Instructions: Criminal 50.03 (4th ed. 2016), for

possession of a controlled substance, and Okler’s counsel did not request an

unwitting possession instruction. The jury convicted Okler as charged. At

sentencing, the court ordered Okler to pay a $500 victim penalty assessment,

interest thereon, and DCC supervision fees. Okler appeals.

ANALYSIS

Admission of Drug Evidence

Okler contends that because he was unlawfully seized when he exited the

RV in response to Officer Belleme’s announcement, the trial court erred by not

suppressing the fruits of that seizure, i.e., the evidence of the methamphetamine

found in his sock. We disagree.

Under article I, section 7, a person is seized “only when, by
means of physical force or a show of authority,” [their] freedom of
movement is restrained and a reasonable person would not have
believed [they are] (1) free to leave, given all the circumstances, or (2)
free to otherwise decline an officer’s request and terminate the
encounter.

State v. O’Neill, 148 Wn.2d 564, 574, 62 P.3d 489 (2003) (citation omitted)

(internal quotation marks omitted) (quoting State v. Young, 135 Wn.2d 498, 510,

957 P.2d 681 (1998)). Facts indicative of a seizure include “the threatening

presence of several officers, the display of a weapon by an officer, some physical

touching of the person of the citizen, or the use of language or tone of voice

indicating that compliance with the officer’s request might be compelled.”

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No. 78750-1-115

Young, 135 Wn.2d at 512 (quoting United States v. Mendenhall, 446 U.S. 544,

554-55, 100 5. Ct. 1870, 64 L. Ed. 2d 497 (1980)).

Article I, section 7 permits social contacts between police and citizens.

Young, 135 Wn.2d at 511. And “[a] police officer’s conduct in engaging a

defendant in conversation in a public place and asking for identification does not,

alone, raise the encounter to an investigative detention.” Young, 135 Wn.2d at

511 (quoting State v.Armenta, 134 Wn.2d 1,11,948 P.2d 1280 (1997)). Where,

as here, the determinative facts are not in dispute,1 “the ultimate determination

of whether those facts constitute a seizure is one of law,” which we review de

novo. State v. Harrington, 167 Wn.2d 656, 662, 222 P.3d 92 (2009) (quoting

Armenta, 134 Wn.2d at 9). Okler has the burden of proving that a seizure in

violation of his constitutional rights occurred. O’Neill, 148 Wn.2d at 574.

Here, Okler has not met his burden. Specifically, Okler was a passenger

in a parked vehicle located in a public space and could be stopped by police for a

social contact. ~ State v. Mote, 129 Wn. App. 276, 280, 292, 120 P.3d 596

(2005) (holding that where the defendant was a passenger in vehicle parked in a

public place, he was not seized merely because an officer approached and

asked for his name and birth date). To that end, when the officers approached

the RV, they did not activate their emergency lights or sirens, nor did they block

the RV’s exit with their patrol cars. And while Okler exited the vehicle following

Officer Belleme’s first announcement, others remained in the RV, thus

1Okler assigns error to the trial court’s findings that the officers knocked
before requesting that the occupants exit the RV. We accept the State’s
concession that those findings were not supported by substantial evidence but
note that they are not material to our analysis.
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No. 78750-1-1/6

suggesting that a reasonable person would have felt free to decline Officer

Belleme’s request. See State v. Smith, 154 Wn. App. 695, 699-700, 226 P.3d

195 (2010) (concluding that the defendant was not seized when he exited a

motel room because “the officers did not instruct Smith to remain in the area

outside the room” and the other occupant “remain[ed] in the room, strongly

suggesting that the officers did not require Smith to leave”). Moreover, the

language used by Officer Belleme suggested compliance was a choice, i.e.,

“We’d like to talk to you. Can you come out and talk to us?” Finally, Officer

Belleme never touched Okler and did not prevent him from leaving until he told

him to sit on the curb. In short, the cumulative facts surrounding the initial

interaction between Okier and the officers support a determination that it was a

social contact, not a seizure.

Okler disagrees and relies on State v. Carriero2 for the proposition that,

among other things, “[t]he flanking or impediment of a vehicle by police is a factor

that tends [to] show that the person inside the vehicle was seized.” In Carriero,

two officers parked behind the defendant’s vehicle in a narrow alley which

“blocked Carriero’s egress.” 8 Wn. App. 2d at 647. The officers, standing

immediately next to the vehicle’s doors and “with guns in holsters,” asked the

occupants of the vehicle whether “either possessed identification.” Carriero, 8

Wn. App. 2d at 648, 659. Division Three concluded that Carriero was seized and

28 Wn. App. 2d 641, 439 P.3d 679 (2019); see also State v. Johnson, 8
Wn. App. 2d 728, 744, 440 P.3d 1032 (2019) (holding that a seizure existed
where “two uniformed officers” approached the defendant’s vehicle, shining
flashlights therein, and repeatedly questioning the driver “as to whether the
vehicle belonged to” another person).
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No. 78750-1 -117

held that the fruits of the unlawful possession must be suppressed. Carriero, 8

Wn. App. 2d at 666. Unlike Carriero, the officers here did not prevent the exit of

any of the RV’s occupants, and no facts in the record establish that the officers’

vehicles prohibited the RV’s egress. Thus, Okler’s reliance on Carriero is

misplaced.

Okler further contends that he was seized when Officer Belleme motioned

him to the front of the RV and told him there was an allegation of drug activity.

But Officer Belleme did not show authority to prohibit Okler from leaving and did

not tell him he could not leave, and the fact that he motioned for Okler to come to

the front of the RV without commanding him to do so does not require reversal.

See, ~ United States v. Orman, 486 F.3d 1170, 1172, 1175 (9th Cir. 2007)

(concluding that the defendant was not seized when, among other things, the

officer “motioned [him] away from the foot traffic”). Thus, Okier’s contention fails.

To-convict Instruction

Okler contends that the to-convict instruction for the possession of a

controlled substance must include an element that the defendant knowingly

possessed the substance or it is unconstitutional. We disagree.

Okler was convicted of violating RCW 69.50.4013, which criminalizes the

possession of a controlled substance. In State v. Bradshaw, our Supreme Court

upheld the constitutionality of the predecessor to RCW 69.50.4013 and

reaffirmed its earlier holding that the statute does not have a mens rea element.

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No. 78750-1-1/8

152 Wn.2d 528, 530, 98 P.3d 1190 (2004).~ Like the defendants in Bradshaw,

Okler challenges the to-convict instruction’s lack of a mens rea element. But

Bradshaw explicitly rejects the constitutional challenge Okler presents. And

since Bradshaw, the legislature has amended the possession statute numerous

times4 and has not added a mens rea element to the mere possession statute.

See Bradshaw, 152 Wn.2d at 535 (“The Legislature’s failure to amend [a

criminal statute] in light of [an appellate opinion omitting an intent requirement]

suggests a legislative intent to omit an intent requirement.” (alterations in

original) (quoting State v. Edwards, 84 Wn. App. 5, 12-13, 924 P.2d 397 (1996))).

Therefore, the challenged to-convict instruction for the possession statute was

proper and did not violate Okler’s constitutional rights.

Ineffective Assistance of Counsel

Okler contends that his Sixth Amendment right to effective assistance of

counsel was violated because his trial counsel failed to ask for an unwitting

possession instruction. We disagree.

“Where the claim of ineffective assistance is based on counsel’s failure to

request a particular jury instruction, the defendant must show he was entitled to

the instruction, counsel’s performance was deficient in failing to request it, and

the failure to request the instruction caused prejudice.” State v. Classen, 4 Wn.

App. 2d 520, 539-40, 422 P.3d 489 (2018). Counsel’s conduct is presumed

~ RCW 69.50.401, the statute at issue in Bradshaw, was amended in 2003
to move certain subsections into separate statutes, including RCW69.50.4013.
See LAWS OF 2003, ch. 53 § 331.
4See LAWS OF 2013, ch. 3 § 20; LAWS OF 2015, ch. 70 § 14, ch. 4 § 503;
LAWSOF 2017, ch. 317~ 15.

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 No. 78750-1 -119

effective and is not deficient if it “can be characterized as legitimate trial strategy

or tactics.” State v. Kyllo, 166 Wn.2d 856, 862-63, 215 P.3d 177 (2009). To

rebut the presumption, Okler must show “there is no conceivable legitimate tactic

explaining counsel’s performance.” State v. Reichenbach, 153 Wn.2d 126, 130,

101 P.3d 80(2004).

Unwitting possession is an affirmative defense to possession of a

controlled substance. Bradshaw, 152 Wn.2d at 538. “To prove unwitting

possession, a defendant must show by a preponderance of the evidence that she

did not know that the substance was in her possession or did not know the

nature of the substance.” State v. Sandoval, 8 Wn. App. 2d 267, 281, 438 P.3d

165, review denied, 193 Wn.2d 1028 (2019). And “[a] defendant is not entitled to

an instruction that inaccurately states the law or for which there is no evidentiary

support.” State v. Phillips, 9 Wn. App. 2d 368, 383, 444 P.3d 51, 59 (citing State

v. Crittenden, 146 Wn. App. 361, 369, 189 P.3d 849 (2008)), review denied, 194

Wn.2d 1007 (2019).

Here, Okler testified that he had left the hospital earlier that morning,

arriving at the RV shortly before the police. He admitted to using

methamphetamine, cocaine, and heroin but said that he did not “really

remember” what happened that morning and could not “recollect” having

anything in his sock. He also testified that one woman told him, “[W]hy don’t you

just put your feet up and relax.” This testimony is insufficient to support an

unwittingly possession instruction. See State v. Powell, 150 Wn. App. 139, 154,

206 P.3d 703 (2009) (“A defendant is entitled to a jury instruction supporting his

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 No. 78750-1-1/10

theory of the case if there is substantial evidence in the record supporting his

theory.”). And, in order to request an unwitting possession instruction, Okler’s

trial counsel would have had to elicit testimony from Okier that he did not know

that he possessed methamphetamine. But had he elicited this testimony, the

State could have—and no doubt would have—impeached Okler’s testimony with

his statement to Officer Belleme that he had methamphetamine in his sock.

Therefore, Okler’s trial counsel had a tactical reason not to elicit testimony in

support of an unwitting possession instruction, and thus, his counsel was not

ineffective. See State v. McNeal, 145 Wn.2d 352, 362, 37 P.3d 280 (2002)

(holding that a legitimate trial strategy cannot serve as a basis for an ineffective

assistance of counsel claim).

Okler contends that his trial counsel’s decision could not have been

tactical because there was no defense available to Okler other than unwitting

possession. However, as discussed above, Okler would not have been entitled

to the instruction because the record lacked adequate evidence to support it.

Therefore, Okler’s contention is unpersuasive. See State v. Flora, 160 Wn. App.

549, 556, 249 P.3d 188 (2011) (“[I}f the defendant would not have received a

proposed instruction, counsel’s performance was not deficient.”).

Nonrestitution Interest Accrual and DCC Suiervision Fees

Okler contends that because he is indigent, we must remand to strike the

interest accrual provision of his judgment and sentence and the imposition of

DCC supervision fees. The State concedes that remand is appropriate to strike

the interest accrual provision, and we accept the State’s concession.

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No. 78750-1-I/il

As for the DOC supervision fees, RCW 9.94A.703(2)(d) provides that

“[u]nless waived by the court, as part of any term of community custody, the court

shall order an offender to.. [play supervision fees as determined by the
.

[DCC].” (Emphasis added.) Because supervision fees can be waived by the

court, they constitute discretionary LFOs. See RCW 9.94A.030(31) (“‘Legal

financial obligation’ means a sum of money that is ordered by a superior court of

the state of Washington for legal financial obligations which may include. . . any

financial obligation that is assessed to the offender as a result of a felony

conviction.”). To this end, a trial court’s decision whether to impose a

discretionary LFO is reviewed for abuse of discretion. State v. Ramirez, 191

Wn.2d 732, 741, 426 P.3d 714 (2018).

Here, the record reflects that the trial court intended to waive all

discretionary LFOs. Specifically, the court stated, “I’ll impose the $500 victim

penalty assessment. I’ll find you’re indigent, waive the other financial

obligations.” Because the record indicates that the trial court intended to waive

all discretionary LFC5 but the court did not waive DCC supervision fees, we

remand to the trial court to strike the DCC supervision fees. See State v. Dillon,

No. 78592-3-I, slip op. at (Wash. Ct. App. Feb. 3, 2020),

https://www.courts.wa.gov/opinions/pdf/785923.pdf (remanding to trial court to

strike DCC supervision fees where the record reflected the trial court’s intent to

waive all discretionary LFCs).

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No. 78750-1-1/12

We affirm but remand to the trial court to strike the DCC supervision fees

and interest accrual.

WE CONCUR:

F— — -~

F

12
 State v. Micha& Craig Okier
No. 78750-1-I
DWYER, J. (concurring) — I have said it before and I will say it again:
In a constitutional sense, the term “social contact” is
meaningless. The term has been adopted by lawyers and judges
to describe circumstances that do not amount to a seizure. But it
never matters whether an encounter can be called a social contact.
In seizure analysis, what matters is whether a person is seized. If
not, the inquiry ends regardless of whether the encounter can be
said to have been a social contact. If so, the requirements for a
lawful seizure apply—again without concern for the claimed “social”
purpose for the “contact.”

State v. Johnson, 8 Wn. App. 2d 728, 735, 440 P.3d 1032 (2019).

Accordingly, I do not join the majority’s efforts to characterize the

encounter between Mr. Okler and the officers as a “social contact.” Such an

analysis is entirely unnecessary.
In all other respects, I join in the majority opinion.