Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                        )       NO. 65467-5-I
                                            )
                      Respondent,           )       DIVISION ONE
                                            )
       v.                                   )
                                            )       UNPUBLISHED OPINION
FELIZ RAMIREZ WILHITE,                      )
                                            )
                      Appellant.            )       FILED:  March 5, 2012
________________________________)

       Leach, J.  --  Constructive possession of drugs found on premises is 

established if the person charged with possession had dominion and control 

over the premises.  Because the evidence in this case was sufficient to support 

an inference that Felix Wilhite1 had dominion and control over premises where 

cocaine was found and because his challenges to his conviction and sentence 

either  lack merit   or  need not be considered, we affirm his conviction for 

possession of cocaine with intent to deliver. 

                                        FACTS

       In November 2009, police executing a search warrant at a Burien 

residence found and opened three locked safes in an upstairs bedroom.  Two 

       1 Both the superior court record and the pleadings on appeal refer to Mr. 
Wilhite variously as "Feliz" and "Felix."     We refer to him as "Felix" throughout 
this opinion. 

No. 65467-5 -- I / 2

were located in the bedroom closet.  The third was on the floor next to the bed.  

The latter safe contained $5,000 in cash, a digital scale, and three baggies of a 

substance that tested positive for cocaine.   A safe  in the closet contained 

$2,920.  Based on evidence linking Felix Wilhite to the bedroom, the State 

charged him with possession of cocaine with intent to deliver.

       At trial, Detective Todd Salter of the King County Sheriff's Office testified 

that the room where police found the cocaine was furnished and appeared to be 

lived-in.  There were clothes in the closet, and the trash can was full.  A copy of 

Wilhite's expired temporary driver's license was in a file folder next to the safe 

containing the cocaine.  The license had expired in October 2008 and listed an 

address different than the one for the searched residence.  The detective also

found a receipt for a Western Union money order sent on September 29, 2009.  

The receipt listed Wilhite as the sender and his address as 825 South 176th 

Street -- the address of the searched residence.  

       The bedroom also contained an envelope postmarked August 11, 2009.

It was addressed to Wilhite's father, Felix Ramirez, at the 176th Street address.  

A  handwritten  letter to "Lil Felix" and a flyer for an October 17, 2009, event 

honoring Wilhite's father were also found in the room.           In other parts of the 

house, officers found a copy of Wilhite's birth certificate and a postcard

addressed to him at the 176th Street address.  The postcard was postmarked 

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No. 65467-5 -- I / 3

October 9, 2009.

       Detective Salter testified that the cocaine found in the safe had a street 

value of $7,200 to $9,000 and that the amount was much larger than an average 

user would possess.  When the prosecutor asked Salter  what purpose that 

amount of cocaine would commonly be possessed for, defense counsel objected 

on the grounds that the question called for an ultimate conclusion and invaded 

the province of the jury.  The prosecutor clarified that the he was asking the 

question based on the detective's training and experience, and the court 

overruled the objection.  The        detective  then  testified that "the amount of 

cocaine . . ., the money we found, the scale we found, . . . clearly indicated to me 

that this stuff was being sold."  

       Detective Salter also testified that Stephen Huff, who lived at the Burien 

residence at the time of the search, told him Wilhite was one of his roommates. 

The court sustained a hearsay objection to a subsequent question regarding 

which room Huff identified as Wilhite's.  The court instructed the jury "to 

disregard the witness's testimony with respect to witness Huff and who lived in 

the subject room."  

       The jury convicted Wilhite as charged.  At sentencing, the court ordered 

Wilhite to pay $1,048.28 in court costs.      This sum reflected the cost of sending 

two detectives to Mexico to extradite Wilhite for trial.  Wilhite appeals. 

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No. 65467-5 -- I / 4

                                      DECISION

       Wilhite first contends the State presented insufficient evidence to prove, 

beyond a reasonable doubt, that he possessed cocaine.  Evidence is sufficient 

if, when viewed in a light most favorable to the State, it permits any rational trier 

of fact to find the elements of the crime beyond a reasonable doubt.2         A claim of 

insufficient evidence admits the truth of the evidence and all reasonable 

inferences that can be drawn from that evidence.3        Circumstantial evidence and 

direct evidence are equally reliable,4 and we defer to the trier of fact on issues of 

conflicting testimony, credibility of witnesses, and the persuasiveness of the 

evidence.5    Applying these principles here, we conclude the evidence was 

sufficient to prove that Wilhite possessed cocaine beyond a reasonable doubt.

       The State's theory at trial was that Wilhite constructively possessed the 

cocaine found in the bedroom of the 176th Street residence.  Constructive 

possession of drugs found on premises "is established when the person charged 

with possession has dominion and control over either the drug or the premises."6  

Evidence of temporary residence or the mere presence of personal possessions 

is insufficient to establish dominion and control.7         There must be  evidence

       2 State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
       3 Salinas, 119 Wn.2d at 201.
       4 State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).
       5 State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990); State v. 
Walton, 64 Wn. App. 410, 415 -- 16, 824 P.2d 533 (1992).
       6 State v. Amezola, 49 Wn. App. 78, 86, 741 P.2d 1024 (1987) (citation 
omitted).

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No. 65467-5 -- I / 5

demonstrating "that the defendant resides at the premises and is not merely 

visiting."8 Whether a defendant had dominion and control over premises is 

determined by considering the totality of the circumstances.9  

       The totality of the circumstances in this case supports an inference that 

Wilhite had dominion and control over the bedroom where the cocaine was 

found.  Detective Salter testified without objection that an occupant of the 176th

Street residence told him Wilhite resided there at the time of the search.10  The 

bedroom containing the cocaine showed signs of current occupancy, including 

recent mail, a full trash can, and men's clothing in the closet.  Documents in the 

room, including Wilhite's expired driver's        license, the recent  money order 

receipt, a flyer for a recent event honoring Wilhite's father, and the letter to "Lil 

Felix" supported an inference that the room was Wilhite's.11       The safe containing 

the cocaine, digital scale, and $5,000 was found on the bedroom floor next to the 

bed and Wilhite's license.  

       7 State v. Alvarez, 105 Wn. App. 215, 222, 19 P.3d 485 (2001).
       8 Amezola, 49 Wn. App. at 87; see Alvarez, 105 Wn. App. at 221-22. 
       9 Alvarez, 105 Wn. App. at 221.
       10 Wilhite's claim that this testimony was "apparently stricken" is not 
supported by the record.  The defense did not object to this testimony.  A 
subsequent objection, ruling, and motion to strike only concerned the detective's 
testimony that Wilhite's roommate said Wilhite lived in the bedroom where police 
found the cocaine.  
       11 State v. Weaver, 38 Wn. App. 17, 19, 683 P.2d 1136 (1984) (evidence 
of dominion and control includes letters and other documents bearing the 
defendant's name and the address of the premises and the defendant's driver's 
license).

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No. 65467-5 -- I / 6

       Viewed in a light most favorable to the State, this evidence was sufficient 

to support a finding that Wilhite had constructive possession of the bedroom and 

its contents, including the cocaine.12  

       Wilhite next contends his counsel was ineffective for failing to object 

when, on three occasions, the prosecutor and Detective Salter referred to the 

bedroom containing the cocaine as "the Defendant's" or  "Mr. Wilhite's."   To 

establish  ineffective assistance of counsel, Wilhite         must demonstrate both 

deficient performance and a reasonable probability that, but for counsel's 

omissions, the result of the proceeding would have been different.13  He must 

overcome a strong presumption of effective assistance14 and demonstrate "in the 

record the absence of legitimate strategic or tactical reasons supporting the 

challenged conduct by counsel." 15

       Wilhite has not carried this burden.  He fails to demonstrate the absence 

of any tactical basis for counsel's failure to object.  Whether to object to 

evidence is a classic example of a tactical decision.16   In this case, defense 

       12 Contrary to Wilhite's assertions, this case bears no resemblance to 
State v. Knapstad, 107 Wn.2d 346, 348,  729 P.2d 48 (1986)                  (insufficient 
evidence of constructive possession where drugs were found in attic of house 
rented by defendant's brother, defendant's car was parked at the residence on 
three occasions, receipt bearing defendant's name was found in a bedroom and 
showed a different address for defendant, and ticket bearing defendant's name 
was found in common area and showed different address); State v. Knapstad, 41 
Wn. App. 781, 783-84, 706 P.2d 238 (1985).  
       13 State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).
       14 McFarland, 127 Wn.2d at 335.
       15 McFarland, 127 Wn.2d at 336.

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No. 65467-5 -- I / 7

counsel could have reasonably concluded that objecting to the few references to 

"Wilhite's" bedroom would have done more harm than good.  Furthermore, there 

is no reasonable probability that the references affected the verdict.  The court 

instructed the jury that the lawyers' statements were not evidence and that they 

should disregard "any remark, statement, or argument that is not supported by 

the evidence."     In addition, the  evidence  of occupancy pointed  solely and 

strongly  to Wilhite.    He has not overcome the strong presumption that he 

received effective assistance of counsel. 

       Wilhite  also  contends the trial court abused its discretion in allowing 

Detective Salter to testify that, based on his "training and experience, the 

amount of cocaine . . . that we found, the money we found, the scale we 

found, . . . clearly indicated to me that this stuff was being sold."    Wilhite claims

this testimony constituted an impermissible opinion on guilt.  We disagree. 

       The general rule is that no witness may offer an opinion regarding the 

defendant's guilt because such opinions invade the province of the jury.17           But 

Washington courts have "expressly declined to take an expansive view of claims 

that testimony constitutes an opinion on guilt."18     Instead, our courts have held 

that  opinion testimony, including testimony embracing an ultimate issue,              is 

       16 State v. Madison, 53 Wn. App. 754, 763, 770 P.2d 662 (1989).
       17 City of Seattle v. Heatley, 70 Wn. App. 573, 577, 854 P.2d 658 (1993); 
State v. Demery, 144 Wn.2d 753, 759, 30 P.3d 1278 (2001).
       18 Heatley, 70 Wn. App. at 579; State v. Cruz, 77 Wn. App. 811, 815, 894 
P.2d 573 (1995).

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No. 65467-5 -- I / 8

admissible if it does not directly comment on the defendant's guilt, is helpful to 

the jury, and is based on inferences from the evidence.19              The detective's 

testimony in this case did not directly comment on Wilhite's guilt.  It was also 

based on inferences from the evidence and assisted the jury in understanding 

that evidence.  The court did not abuse its discretion in admitting it.20  

       A case cited by Wilhite -- State v. Montgomery21 -- is distinguishable.  In 

Montgomery, the State charged the defendant with possessing pseudoephedrine 

with intent to manufacture methamphetamine.            At trial, police officers and a 

forensic chemist expressed their personal belief that  the defendant and an 

accomplice      "'were, in fact, buying ingredients to manufacture 

methamphetamine,'"       "'purchased [the items] for manufacturing,'"                and 

"'possessed [pseudoephedrine] with intent.'"22  Because these opinions explicitly 

commented on the defendant's intent and "went to the core issue and the only 

disputed element" in the case, they were improper.23  The court noted that it 

would have been proper for the detective to testify that "[t]he chemicals 

possessed and the manner in which they were obtained was consistent with 

intent to manufacture methamphetamine."24  

       19 Heatley, 70 Wn. App. at 578.
       20 See Cruz, 77 Wn. App.  at  815 (detective's testimony about typical 
heroin transaction was not opinion on defendant's guilt).  
       21 163 Wn.2d 577, 183 P.3d 267 (2008).
       22 Montgomery, 163 Wn.2d at 588.
       23 Montgomery, 163 Wn.2d at 594-95.
       24 Montgomery, 163 Wn.2d at 594 n.8.

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No. 65467-5 -- I / 9

       Detective Salter's testimony, by contrast, did not go to the core issue in 

this case (constructive possession) or the only disputed element.  Nor did Salter

explicitly comment on Wilhite's intent.  While it would have been better if Salter 

had not used the words  "to me,"25 his testimony was otherwise proper and 

distinguishable from the improper statements in Montgomery.               Furthermore, 

because the challenged statements were               essentially cumulative      of the 

detective's other unchallenged testimony, any error was harmless beyond a 

reasonable doubt. 

       Last, Wilhite contends the trial court exceeded its authority in requiring 

him to pay extradition costs of $1,048.28.  He contends RCW 10.01.160(2) limits 

such costs to $100.00.  The statute provides in pertinent part that "[c]osts for 

preparing and serving a warrant for failure to appear may not exceed one 

hundred dollars."  In its response, the State points out that the statute nowhere 

mentions extradition costs and that extradition and the service of warrants for 

failure to appear are distinct processes.26    It concludes that the statute does not 

apply to extradition costs.

       25 See Montgomery, 163 Wn.2d at 594.
       26 Compare CrR 2.2(b)(4),(c), (d) (providing process for issuance of arrest 
warrants following failure to appear), with ch. 10.88 RCW (providing process for 
extradition); see also State v. Cintron-Cartegena, 79 Wn. App. 600, 603, 904 
P.2d 781 (1995) ("Although another state may hold a defendant through the 
provisions of the Uniform Criminal Extradition Act, Ch. 10.88 RCW, a warrant of 
arrest has no independent validity beyond the borders of the state by whose 
authority it is issued.").

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No. 65467-5 -- I / 10

       In his reply brief, Wilhite does not dispute the State's observations about 

the statute or the difference between extradition proceedings and failure to 

appear warrants.    Instead, he argues for the first time that the trial court lacked 

statutory authority to award any costs for extradition.  We need not consider 

claims raised for the first time in a reply brief.27    Moreover, Wilhite's argument 

overlooks a decision from this court -- State v. Lass28 -- upholding the imposition 

of extradition costs under RCW 10.01.160.29

       Affirmed.  

WE CONCUR:

       27 State v. Wilson, 162 Wn. App. 409, 417 n.5, 253 P.3d 1143 (2011), 
review denied, No. 86336-9 (Wash. Nov. 28, 2011).
       28 55 Wn. App. 300, 307-08, 777 P.2d 539 (1989).
       29 Wilhite also overlooks the fact that RCW 10.01.160 is based on an 
Oregon statute, that "we consider as authoritative that state's construction of [its 
statute]," and that Oregon courts have held that extradition costs are recoverable 
under their statute.  Utter v. Dep't of Soc. & Health Servs., 140 Wn. App. 293, 
305, 309-10, 165 P.3d 399 (2007); see also Maroney v. State, 849 N.E.2d 745, 
749 (Ind. Ct. App. 2006) ("The majority of jurisdictions having considered the 
question regarding extradition expenses as costs have held that the definition of 
prosecution costs includes extradition costs.").

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