IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Hunt, J. — Reginald Bell appeals his jury convictions and exceptional sentence for one
count of possession of a controlled substance with intent to deliver and two counts of bail
jumping. Bell argues that (1) the trial court erroneously denied his motion to suppress drug
evidence that police found during a search of a motel room because he had automatic standing to
challenge the search and the police lacked an articulable suspicion to detain him temporarily; and
(2) the trial court’s sentence of 240 months is excessive. In his Statement of Additional Grounds
(SAG),1 Bell asserts that (1) the trial court erred by denying his motion for arrest of judgment for
his possession with intent to distribute conviction; (2) the State committed at least five instances
of prosecutorial misconduct; (3) the trial court violated his speedy trial rights; (4) the trial court
erroneously denied his motion for judgment notwithstanding the verdict for his bail jumping
convictions; and (5) his appellate counsel rendered ineffective assistance of counsel. We affirm.
On February 24, 2008, Shirley Butts was a registered guest at Tacoma’s Norman Bates
Motel. At 8:30 am, Butts and a friend were watching television in her motel room when Reginald
Bell knocked on the door, “was being real loud outside,” and asked if he could “hang out”; Butts
agreed. 2 Verbatim Report of Proceedings (VRP) at 213, 210. Bell brought cocaine into the
motel room, processed powder cocaine into “rock cocaine,” and then allowed Butts to sample it;
because she did not like it, he “recooked” some of the rock cocaine. 2 VRP at 214-15. Bell then
started “cutting up” a ball of rock cocaine into “chunks.” 2 VRP at 216.
At approximately 11:44 am, Fife Police Officer Robert Eugley received a call that there
was a “customer problem” at the Bates Motel. 1 VRP at 67. When Eugley and Fife Police
Officer Ryan Micenko responded, Eugley contacted the motel’s desk clerk, Bonnie Baker, who
advised him that there were “some guests overnight that had not checked in, or paid the overnight
fee” in a motel room and “some heavy foot traffic in and out of” that motel room. 1 VRP at 67.
Baker asked the police to make contact with the room.
As Bell was cutting up the rock cocaine into small pieces, the officers knocked on the
door to Butts’s motel room. When Bell heard the knock on the door, “he took everything and ran
and hid it in [Butts’s] closet, and put the ball [of rock cocaine] in [Butts’s] shirt pocket [of a shirt
hanging in the closet], and then he hid in the bathroom.” 2 VRP at 216, 218. When there was no
response, Micenko shouted, “[P]olice, come to the door,” and Butts opened the door. 1 VRP at
68. When Eugley asked Butts if anyone else was present in the motel room with her, Butts
initially replied that there was no one else. Butts then said that a man was in the bathroom,
walked over to the bathroom, and told Bell to come out. After first refusing to come out of the
bathroom, Bell then complied. Eugley and Micenko recognized Bell and addressed him as
“Reginald” and “Mr. Bell.” 2 VRP at 220.
Concerned for officer safety, Eugley asked Bell and Butts “if they could just both sit on
the bed while [the officers] talked to them and explained to them why [the officers] were there”;
Bell and Butts sat on the bed. 1 VRP at 68. Eugley and Micenko continued to stand outside the
motel room doorway, with Eugley on one side of the door and Micenko on the other. As Eugley
began to advise Butts that the motel desk clerk had reported “foot traffic and overnight guests,”
Butts “attempted to reach towards an item on the nightstand” that appeared to Eugley “to be a
marijuana smoking pipe.” 1 VRP at 69. Eugley ordered her to stop reaching for the pipe and to
keep her hands where he could see them. Disobeying Eugley’s command, Butts continued to
reach for and then picked up the pipe. When Eugley asked Butts, “[W]hat is that[?]” Butts
responded, “[I]t’s a pipe.” 1 VRP at 69. When Eugley asked Butts what she used the pipe for,
Butts replied that it was for smoking marijuana.
Eugley then asked Butts if there was any marijuana in the room. Butts denied that there
was. But when Micenko asked “if the marijuana was in the small canister that was sitting on the
nightstand next to her,” Butts confirmed that the canister did have marijuana in it, and then picked
up the canister. 1 VRP at 69. Eugley twice ordered her to put the canister down; Butts failed to
obey both times.
Believing that Butts was trying to conceal or to destroy evidence,2 Eugley entered the
room and advised Butts that she was under arrest, and read her Miranda3 rights, which Butts
stated she understood. When Eugley asked if other drugs or drug paraphernalia were in the
room, Butts told Eugley “about a box underneath the table that she had stuff in.” 1 VRP at 72.
Butts admitted owning the box, which contained drug paraphernalia and a small amount of
cocaine. When Eugley asked if there were “anything else in the room,” Butts replied, “[I]t wasn’t
hers.” 1 VRP at 72. Eugley obtained Butts’s verbal consent for the officers to search the rest of
the room; Butts also agreed to provide written consent. During this time, Bell remained seated on
Butts also told Eugley about “some crack cocaine in the room on the shelf by the
bathroom above the coat rack.” 1 VRP at 72. When Eugley searched this area, underneath a
sweatshirt he found a “small plastic plate with what appeared to be suspected crack cocaine on it,
small and large pieces, along with a folding knife that had [ ] residue on the tip of it,” which
belonged to Butts. 1 VRP at 73. The officers arrested Butts.
Eugley then observed “a plastic bag sticking out of a T-shirt pocket that had a whitish
substance in it,” “pulled it out and observed a fist size rock-type substance” that he believed to be
crack cocaine. 1 VRP at 73. Butts informed Eugley that the shirt was hers but that the cocaine
According to Micenko, the motel room “was very cluttered”; Micenko believed that if Butts
were to throw the small amount of marijuana somewhere in the room, the officers would not be
able to find it. 1 VRP at 102. Micenko testified, for example, that “[Butts] could have crumbled
[the marijuana] up and thrown it and [the officers] would have never found it.” 1 VRP at 102.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
belonged to Bell. At that point, Micenko arrested Bell. Searching Bell incident to his arrest, the
officers found approximately $964 in Bell’s pocket. In total, the police seized approximately 68
to 73 grams of crack cocaine with a street value of more than $6,000.
The State charged Bell with unlawful possession of a Schedule II controlled substance
with intent to deliver, RCW 69.50.401. The State later added two counts of bail jumping after
Bell repeatedly failed to appear for various court hearings and his scheduled trial date. The
second amended information also added an aggravating circumstance to all three charges: That
the “operation of the multiple offense policy . . . results in a presumptive sentence that is clearly
too lenient . . . and/or . . . the defendant has committed multiple current offenses and [Bell’s] high
offender score will result in some of the current offenses going unpunished.” Clerk’s Papers (CP)
A. Motion To Suppress
Following multiple continuances for cause, the trial court held a suppression hearing, at
which Bell, Baker, and Officers Eugley and Micenko testified. Baker testified that (1) she had
instructed Butts to register each guest with the motel office regardless of whether the guest was
an overnight guest because “everyone [Butts] had coming to her room . . . wound up staying the
night always,” VRP (Sept. 9, 2009) at 12; and (2) Butts had not registered Bell as her guest on
February 24, 2008. Micenko testified that he recognized Bell from previous contacts, including
Bell testified that (1) he attempted to leave the motel room, but Officer Eugley “grabbed”
him and told him to sit on the bed next to Butts, VRP (Sept. 9, 2009) at 60; and (2) Officer
Eugley stated to Butts, “‘[A]ll you have to do is say this [the drug evidence] belongs to Mr. Bell
and we’ll let you go.’” VRP (Sept. 9, 2009) at 65. The trial court ruled that Bell’s testimony was
not credible. It orally denied Bell’s motion to suppress. The trial court later entered written
Findings of Fact and Conclusions of Law. In finding of fact 11, the trial court found:
Officer Eugley asked Ms. Butts and [Bell] to sit on the bed. The officers remained
outside the room by the doorway while Officer Eugley explained to Ms. Butts why
the officers were there. . . . The officers remained on either side of the door and
were not blocking the entrance. At no point did the officers draw their weapons,
threaten to use force, physically restrain . . . Butts or [Bell], or otherwise indicate
to Ms. Butts and [Bell] that they were not free to leave. At no point during the
entire incident did [Bell] ask to leave, attempt to leave, get off the bed (until he
was arrested at the conclusion of the incident), or otherwise indicate that he
wanted to terminate his contact with the officers or leave the room.
CP at 271-72.
In conclusions of law 7 and 8, the trial court ruled that Bell did not have “automatic
standing” to challenge the police’s search of the hotel because (1) he “was not legitimately and
lawfully on the premises where the search occurred” in light of an order prohibiting him from
being in the area where the motel was located, and his failure to comply with the motel’s “rules
and policies regarding registering with the front desk,” and (2) “he did not have a reasonable
expectation of privacy in the premises because he was merely a ‘casual visitor.’” CP at 278.
In conclusions of law 9 and 10, the trial court further ruled that, even if Bell had standing
to challenge the search, the search was lawful because (1) the police had entered the motel room
to prevent Butts from destroying evidence, an exigent circumstance; and (2) after the police
arrested Butts and read her Miranda rights, Butts waived those rights and consented to the
police’s search of her motel room. The trial court ruled in conclusion of law 11 that the police did
not also need to seek Bell’s consent to search because Bell was not a registered co-occupant of
the motel room. Finally, in conclusion of law 12, the trial court ruled that “there was probable
cause to arrest [Bell] for crimes relating to the possession of cocaine found in the room.” CP at
B. Motions To Dismiss
Acting pro se, Bell moved to dismiss his case under CrR 3.3(h), arguing that the State was
violating his right to a speedy trial. Through his defense counsel, Bell moved a second time to
suppress the evidence that the police had obtained during their search of the motel room, arguing
that (1) he had standing to challenge the search; (2) the police did not have probable cause or a
reasonable suspicion to believe Bell was involved in criminal activity; (3) the police had “exceeded
their authority when they unlawfully contacted and entered” the motel room, CP at 17; and (4)
Butts’s consent to the police’s search was based on “an illegal detention and entry” and therefore
could not provide a legal basis for the search. CP at 20.
After law enforcement arrested him on a bench warrant for failure to appear, Bell, again
acting pro se, moved to dismiss his case, asserting that his defense counsel had requested a 30-day
continuance to which Bell objected. The record before us on appeal does not contain any ruling
on this motion. Presumably, the trial court denied it. Later, again pro se, Bell moved to dismiss
his case under CrR 8.3(b), alleging “arbitrary action or governmental misconduct” and citing the
Fifth and Fourteenth Amendments to the United States Constitution and article I, section 3 of the
state constitution. CP at 65. The record before us on appeal contains no rulings on these
Acting through his attorney, Bell filed a motion to dismiss his case under (1) CrRLJ
4.7(g)(7)(i), because the State allegedly failed to provide Butts’s name and address, as CrR
4.7(a)(1)(i) requires; and (2) under CrRLJ 8.3(b) because the State allegedly did not provide him
with “an accurate [sic] and/or current address” for Butts, which failure prejudiced his “right to a
speedy trial and the right to be represented by counsel who has had sufficient opportunity to
adequately prepare a material part of his defense.” CP at 105 (emphasis omitted). Alternatively,
Bell moved to exclude Butts’s testimony at trial. The trial court denied both motions.
C. Motions in Limine
Bell also moved in limine to exclude certain evidence under ER 404(b), including the
“SODA” Order4 that excluded him from the geographic area encompassing the Norman Bates
Motel. The trial court agreed to admit the SODA Order and its accompanying map under ER
404(b) but only “in a very limited sense”: The trial court ordered that the State could not use the
SODA Order “to prove the character” of Bell and could use it only “for the purpose of
knowledge . . . and what did [Bell] know.” 1 VRP at 48. The trial court further ordered the
parties to refrain from referring to the prohibited area as “a drug activity area.”5 1 VRP at 49.
“SODA” stands for “stay out of the area of drug activity.” 1 VRP at 35. A SODA Order is a
sentencing condition that prohibits the person from entering or remaining in a particular area “for
any reason.” Ex. 6.
Later acting pro se, Bell orally moved for the trial court to reconsider its ER 404(b) ruling,
arguing that “there is strong evidence that suggest[s] that the [SODA Order] is a forged
document.” 1 VRP at 52. After granting Bell’s counsel time to research the forgery issue during
the lunch recess, which produced no evidence of forgery, the trial court denied Bell’s motion to
reconsider its ER 404(b) ruling.
The jury found Bell guilty of unlawful possession with intent to deliver a controlled
substance under RCW 69.50.401, and guilty of both counts of bail jumping. At the close of trial,
Bell moved for judgment notwithstanding the verdict on the bail jumping charges, arguing that the
State did not provide sufficient evidence either that Bell had notice of his appearance dates or that
Bell did not make an appearance. The trial court denied this motion.
On October 5, 2009, the trial court entered Findings of Fact and Conclusions of Law
regarding Bell’s sentencing that (1) Bell had an offender score of 15 for all three counts, (2) the
standard range for the possession with intent to deliver conviction was “60+ to 120 months,” and
(3) the standard range for the bail jumping convictions was 51 to 60 months. CP at 187 (Findings
of Facts (FF) III, IV). Citing former RCW 9.94A.535(2)(c) (2007), the trial court found that
“[b]ecause of [Bell’s] high offender score on all counts, some of his current offenses will go
unpunished if a sentence within the standard range is imposed.” CP at 187 (FF V). The trial
court then ruled:
Because of the presence of the above aggravating factor [former RCW
9.94A.535(2)(c)], and considering the purposes of the Sentencing Reform Act,
sentencing with[in] the standard range is not an appropriate sentence. RCW
9.94A.589(1)(a) authorizes a court to impose consecutive sentences for multiple
current offenses when an aggravating factor has been found under [former] RCW
9.94A.535(2)(c). The court therefore ORDERS that the sentence for [the
possession with intent to deliver and bail jumping convictions] be served
CONSECUTIVELY to each other and all other sentences. The precise period of
confinement for these counts are set forth in the judgment and sentence.
CP at 188 (FF VI). The trial court also concluded, “[T]here are substantial and compelling
reasons justifying an exceptional sentence outside the standard range.” CP at 188 (Conclusion of
Law (CL) I). The trial court sentenced Bell to 120 months of confinement for possession with
intent to distribute and 60 months for each bail jumping conviction. The trial court also ordered
Bell to serve these three sentences consecutively.
F. Pro Se Post-trial Motions
After sentencing, Bell filed two additional pro se motions: a motion for an arrest of
judgment under CrR 7.4(a)(3) and a motion for a new trial under CrR 7.5(a). He argued that
there was insufficient evidence to satisfy the “actual . . . [or] constructive possession” element of
his possession with intent to distribute charge. CP at 229. He argued for a new trial because (1)
the prosecutor had committed misconduct by referring to Bell’s SODA Order during closing
argument, introducing “false evidence with regard to the court order that was not issued by a
court,” “telling jury, in effect, that . . . Bell was a street level crack dealer,” and “by arguing in
closing a profit motive when there [wasn’t] any evidence of such”; (2) the trial court erred in
denying Bell’s motion to reconsider its ER 404(b) ruling; (3) “substantial justice ha[d] not been
done in that the prosecution had previously convicted . . . Butts of possessing the same unlawful
contraband”; and (4) the State had made “inconsistent prosecutorial positions and inconsistent
assertion[s] of facts in arguing that . . . Butts possessed the cocaine in State v. Butts and in State
v. Bell[;] Bell possessed the cocaine and then using Butts as a witness to provide testimony
diametrically opposite than [sic] the testimony in State v. Butts.” CP at 236-38. The record
before us on appeal does not contain any ruling on these motions.
I. Denial of Motion To Suppress
Bell first argues that the trial court erroneously denied his motion to suppress because (1)
the police lacked a lawful basis to seize him; (2) accordingly, they seized him unlawfully when
they asked him to sit on the bed with Butts; and (3) therefore, the subsequent search of the motel
room and seizure of evidence were unlawful. Bell asserts that he has automatic standing to bring
this challenge because he was in constructive possession of the cocaine the police discovered in
the motel room. Assuming, without deciding, that Bell has automatic standing to raise these
challenges, we hold that the police did not seize Bell and that the trial court did not err in denying
his motion to suppress.
We review the trial court’s denial of a motion to suppress to determine whether substantial
evidence supports the factual findings and, if so, whether the findings support the conclusions of
law. State v. Garvin, 166 Wn.2d 242, 249, 207 P.3d 1266 (2009). We review the trial court’s
conclusions of law de novo.
Garvin, 166 Wn.2d at 249.
A seizure occurs when a law
enforcement officer uses physical force or displays of authority to restrain a suspect’s freedom of
movement such that a reasonable person would not believe he is free to leave under the
circumstances or free to decline the officer’s request or to terminate the encounter. State v.
O’Neill, 148 Wn.2d 564, 574, 62 P.3d 489 (2003). A seizure does not occur, however, when the
police initiate contact “without duress or compulsion.” State v. Harrington, 167 Wn.2d 656, 665,
222 P.3d 92 (2009).
Based on the suppression hearing, the trial court found that (1) the officers “asked Ms.
Butts and [Bell] to sit on the bed”; (2) “[t]he officers . . . were not blocking the entrance” to the
motel room; (3) “[a]t no point did the officers draw their weapons, threaten to use force,
physically restrain Ms. Butts or [Bell], or otherwise indicate to Ms. Butts and [Bell] that they
were not free to leave”; and (4) “[a]t no point during the entire incident did [Bell] ask to leave,
attempt to leave, get off the bed . . . or otherwise indicate that he wanted to terminate his contact
with the officers or leave the motel room.” CP at 271-72. Bell does not challenge these findings
of fact on appeal;6 thus, we treat them as verities. State v. Eriksen, 170 Wn.2d 209, 215 n.4, 241
P.3d 399 (2010).
Given these unchallenged findings of fact, we hold that, under the circumstances, law
enforcement did not restrain Bell’s freedom of movement and that a reasonable person would
have believed he was free to leave the motel room or free to decline the officers’ request and to
terminate the encounter. O’Neill, 148 Wn.2d at 574. Accordingly, we affirm the trial court’s
denial of Bell’s motion to suppress.
II. Exceptional Sentence
Bell next argues that the trial court’s exceptional sentence of 240 months of confinement
is clearly excessive because, according to Bell, “20 years of confinement for non-violent class B
and class C felonies is clearly excessive.” Br. of Appellant at 21. We disagree.
The “abuse of discretion” standard applies to our review of whether an exceptional
sentence is clearly excessive. State v. Kolesnik, 146 Wn. App. 790, 805, 192 P.3d 937 (2008),
review denied, 165 Wn.2d 1050 (2009). A “‘clearly excessive’” sentence is one that is clearly
unreasonable, “‘i.e., exercised on untenable grounds or for untenable reasons, or an action that
no reasonable person would have taken.’”7 Kolesnik, 146 Wn. App. at 805 (quoting State v.
RAP 10.3(g) requires the appellant to include in his brief a “separate assignment of error for
each finding of fact [he] contends was improperly made,” including “reference to the finding by
When a sentencing court bases an exceptional sentence on tenable reasons, however, we rule
that sentence excessive only if its length, in light of the record, “‘shocks the conscience.’”
Ritchie, 126 Wn.2d 388, 393, 894 P.2d 1308 (1995) (internal quotation marks omitted)). We
find no such abuse here.
To justify ordering Bell to serve his multiple sentences consecutively under RCW
9.94A.589(1)(a), the trial court found a “substantial and compelling reason justifying an
exceptional sentence” that exceeded “the standard sentencing range”—that Bell “ha[d] committed
multiple current offenses and the defendant's high offender score [would otherwise result] in some
of the current offenses going unpunished.”
CP at 187, 188 (quoting former RCW
9.94A.535(2)(c)). Neither the law nor the facts here support Bell’s argument that the resulting
240 months of total confinement is “clearly above and beyond the length of time that the
Legislature deemed appropriate punishment for these crimes.” Br. of Appellant at 21.
If a trial court does not impose an exceptional sentence in these circumstances, then a
defendant with an offender score higher than 9 (the highest score that RCW 9.94A.510
contemplates), like Bell, whose offender score was 15, does not receive any greater punishment
than a defendant with an offender score of exactly 9. A standard-range sentence in this instance
“would not be proportionate to the seriousness of the offense, promote respect for the law, or be
commensurate with the punishment imposed on others committing similar offenses.” State v.
Garnier, 52 Wn. App. 657, 664, 763 P.2d 209 (1988), overruled on other grounds by State v.
Stephens, 116 Wn.2d 238, 803 P.2d 319 (1991); see also State v. Brundage, 126 Wn. App. 55,
66-67, 107 P.3d 742 (2005), review denied, 157 Wn.2d 1017 (2006).
Kolesnik, 146 Wn. App. at 805 (quoting State v. Vaughn, 83 Wn. App. 669, 681, 924 P.2d 27
(1996) (internal quotation marks omitted)). A sentence that shocks the conscience is one that “no
reasonable person would adopt.” State v. Halsey, 140 Wn. App. 313, 324-25, 165 P.3d 409
For defendants with very high offender scores, often times the “presumption of concurrent
sentencing” under RCW 9.94A.589(1)(a) results in an actual sentence that does not reflect the
deserved punishment. State v. Vance, 168 Wn.2d 754, 760, 230 P.3d 1055 (2010); Stephens, 116
Wn.2d at 244-45. Thus,“[s]omething more is required” to impose an appropriate sentence.
Stephens, 116 Wn.2d at 243. Our legislature responded by authorizing consecutive sentences
under RCW 9.94A.589(1)(a), the imposition of which is left to the “total discretion” of the trial
court. State v. Linderman, 54 Wn. App. 137, 139, 772 P.2d 1025 (1989), review denied, 113
Wn.2d 1004 (1989).8 We hold that the trial court did not abuse its discretion here in running
Bell’s sentences consecutively.
III. Statement of Additional Grounds (SAG)
Bell next asserts five additional grounds for reversal of his convictions and exceptional
sentence: (1) The trial court erred by denying his motion for arrest of judgment on his possession
with intent to distribute conviction; (2) the State engaged in several instances of prosecutorial
misconduct; (3) the trial court violated his speedy trial rights; (4) the trial court erroneously
denied his motion for judgment notwithstanding the verdict on his bail jumping convictions; and
(5) his appellate counsel rendered ineffective assistance. None of these assertions merit reversal.
A. Denial of Motion for Arrest of Judgment
The record does not support Bell’s contention that the State failed to provide sufficient
See also State v. Grayson, 130 Wn. App. 782, 786, 125 P.3d 169 (2005) (“‘A sentencing judge
has unfettered discretion to impose any sentences . . . either concurrently with, or consecutively
to, a prior sentence for multiple current offenses.’”) (quoting In re Personal Restraint of Long,
117 Wn.2d 292, 305, 815 P.2d 257 (1991)).
evidence that he had constructive possession of the cocaine that police found in Butts’s motel
A defendant may move to arrest the judgment under CrR 7.4(a)(3) because of
“insufficiency of the proof of a material element of the crime.” Reviewing denial of a motion for
arrest of judgment requires us to engage in the same inquiry as the trial court. State v. Ceglowski,
103 Wn. App. 346, 349, 12 P.3d 160 (2000). The evidence presented in a criminal trial is legally
sufficient to support a guilty verdict if any rational trier of fact, viewing the evidence in a light
most favorable to the State, could find the essential elements of the charged crime beyond a
reasonable doubt. State v. Longshore, 141 Wn.2d 414, 420-21, 5 P.3d 1256 (2000). “‘A claim
of insufficiency admits the truth of the State’s evidence and all inferences that reasonably can be
drawn therefrom.’” Ceglowski, 103 Wn. App. at 349 (quoting State v. Salinas, 119 Wn. 2d 192,
201, 829 P.2d 1068 (1992)). We review a trial court’s decision on a motion for arrest of
judgment under an abuse of discretion standard. State v. Meridieth, 144 Wn. App. 47, 53, 180
P.3d 867 (2008). We find no such abuse of discretion here.
Bell argues that we should analogize to State v. Callahan, 77 Wn.2d 27, 459 P.2d 400
(1969), in which our Supreme Court reversed a defendant’s narcotics possession conviction,
holding that “there was insufficient evidence for the jury to find that the defendant had
Bell actually argues that the State “did not meet its burden of establishing any of the elements”
of the possession with intent to deliver charge, SAG at 5 (emphasis added), but Bell provides
argumentation only for the “possession” element. See RCW 69.50.401(1) (“Except as authorized
by this chapter, it is unlawful for any person to manufacture, deliver, or possess with intent to
manufacture or deliver, a controlled substance.”)
constructive possession of the drugs.” Callahan, 77 Wn.2d at 32;10 SAG at 10. But Bell
overlooks a major component of Callahan’s analysis: After discussing the lack of indicia of
dominion or control, our Supreme Court underscored clear evidence that another person had
admitted at trial that “the drugs belonged to him,” that “he had brought them on the boat,” and
“that he had sole control over them.”11
Callahan, 77 Wn.2d at 31.
Based on these
uncontroverted facts, our Supreme Court concluded:
Evidence pointing to any dominion or control [Callahan] might have over the
drugs was purely circumstantial and it is not within the rule of reasonable
hypothesis to hold that proof of possession by [Callahan] may be established by
circumstantial evidence when undisputed direct proof places exclusive possession
in some other person.
Callahan, 77 Wn.2d at 31-32 (emphasis added).
Here, unlike in Callahan, in addition to circumstantial evidence of Bell’s possession of the
Law enforcement officers executing a search warrant on a houseboat found Callahan and
another person sitting at a desk that had “various pills and hypodermic syringes” on it and a cigar
box with narcotics on the floor between the Callahan and the other man; they discovered more
narcotics throughout the kitchen and bedroom areas. Callahan, 77 Wn.2d at 28. Callahan
admitted (1) possessing firearms, two books on narcotics, and a set of broken scales; (2) having
handled the drugs earlier that day; and (3) having stayed on the houseboat for two to three days
before his arrest, which he later denied during trial. Callahan, 77 Wn.2d at 28. Holding that
these facts were insufficient to support a theory of constructive possession, our Supreme Court
Although there was evidence that [Callahan] had been staying on the houseboat for
a few days there was no evidence that he participated in paying the rent or
maintained it as his residence. Further, there was no showing that [Callahan] had
dominion or control over the houseboat. The single fact that he had personal
possessions, not of the clothing or personal toilet article type, on the premises is
insufficient to support such a conclusion.
Callahan, 77 Wn.2d at 31.
Testimony from several others corroborated these facts. Callahan, 77 Wn.2d at 31.
cocaine, the State presented direct evidence of his dominion and control over the cocaine: At
trial, Butts testified, “Reginald Bell came to my door at 8:30 on February 24th . . . and he brought
cocaine into the room.” 2 VRP at 210. Moreover, again unlike Callahan, the record here
contains no evidence that any person other than Bell had exclusive possession of the cocaine.12
Nor does Bell’s argument that Butts had domain and control over the motel room undercut the
undisputed other evidence of his possession and control of the cocaine.13 Here, there was direct
uncontroverted evidence that Bell brought the cocaine into the motel room, differing markedly
from the undisputed evidence in Callahan that the drugs belonged to someone other than the
defendant. We hold that, viewing the evidence in a light most favorable to the State, a rational
trier of fact could find beyond a reasonable doubt that Bell exercised dominion and control over
the cocaine, and, therefore, the trial court did not err in denying Bell’s motion to arrest judgment.
Although Bell argues to the contrary that Butts had sole possession of the cocaine, most of
these asserted facts do not support his argument. For example, Bell’s cites Butts’s testimony that
after the Bell made bail, he returned to the motel room to retrieve his DVD player. SAG at 10
(citing 2 VRP at 242-43); this fact is irrelevant to the issue of his constructive possession of the
The dominion and control aspect of constructive possession does not require exclusive control.
State v. Nyegaard, 154 Wn. App. 641, 647, 226 P.3d 783 (2010); see also State v. George, 146
Wn. App. 906, 920, 193 P.3d 693 (2008) (“[M]ore than one defendant may be in possession of
the same prohibited item.”)
B. Untimely Allegations of Prosecutorial Misconduct
Bell attempts, contrary to RAP 2.5(a), to raise numerous claims of prosecutorial
misconduct for the first time on appeal.14 See SAG at 13-15. But Bell does not show that any of
his allegations of prosecutorial misconduct were “so flagrant and ill-intentioned that no curative
instructions could have obviated the prejudice engendered by the misconduct.” State v. Belgarde,
110 Wn.2d 504, 507, 755 P.2d 174 (1988) (citations omitted). Therefore, we do not further
address these allegations.
C. Speedy Trial
Bell argues that the trial court violated his constitutional speedy trial rights by continuing
the trial seven times between April 7 and September 15, 2009.15 Bell bases his argument on CrR
3.3(b)(1)(i), which requires trial to begin within 60 days of arraignment if the defendant is in
custody. The record shows, however, that the trial court validly ordered the continuances under
CrR 3.3(f) for appropriate reasons, such as allowing for time for counsel to interview witnesses
and the lack of open courtrooms, and, therefore, did not violate CrR 3.3(b)(1)(i). Nor does Bell
show that these continuances violated his constitutional rights to a speedy trial under U.S. Const.
amend. VI or Wash. Const. art. I, §22.
These allegations of prosecutorial misconduct include: (1) the State’s decision to charge Bell
with possession with intent to deliver; (2) the State’s forcing Butts to “conjure testimony” that
Butts witnessed Bell handling the cocaine; (3) the State’s rendering Butts “unavailable for
interviews prior to trial so that the substance of her testimony cannot be determined prior to trial”;
(4) the State’s submitting a forged SODA Order; and (5) the State’s use of Officer Micenko’s
“perjured testimony.” SAG at 13-15.
Bell objected to each of the seven continuances, but his attorney signed each one.
D. Judgment Notwithstanding the Verdict
Bell next contends that the trial court erred by denying his motion for judgment
notwithstanding the verdict on his bail jumping convictions because (1) the State failed to provide
sufficient evidence that he was aware of his appearance dates or (2) alternatively, the State failed
to establish that Bell actually did not show up to his appearances. The record supports neither
The trial court should not grant a motion for a judgment notwithstanding the verdict
unless the court can say, as a matter of law, that there is neither evidence nor reasonable
inferences from it sufficient to sustain the verdict. McGreevy v. Oregon Mut. Ins. Co., 74 Wn.
App. 858, 866, 876 P.2d 463 (1994), aff’d, 128 Wn.2d 26 (1995). The court must accept the
truth of the nonmoving party's evidence and draw all reasonable inferences in the light most
favorable to the party that moves for a judgment notwithstanding the verdict. McGreevy, 74 Wn.
App. at 866. The court may grant the motion only when there is no competent evidence or
reasonable inference that would sustain a verdict for the nonmoving party. McGreevy, 74 Wn.
App. at 866. Such is not the case here.
The scheduling order that set Bell’s pretrial conference date for March 11, 2008 (for
which Bell did not appear) appears to bear Bell’s signature. Ex. 18. The continuance order that
rescheduled Bell’s trial for August 14, 2008 (for which Bell also did not appear), has the words
“refused to sign” above Bell’s signature line. Ex. 27. Although Bell disputes the authenticity of
these documents,16 we cannot say that “there is no competent evidence or reasonable inference”
The proper method for seeking court consideration of matters outside the record is through a
personal restraint petition under RAP 16.4.
to sustain the jury’s two convictions for bail jumping. McGreevy, 74 Wn. App. at 866. We hold,
therefore, that the trial court did not err by denying Bell’s motion for judgment notwithstanding
E. Ineffective Assistance of Appellate Counsel
To prevail on an ineffective assistance of appellate counsel claim, the appellant must
demonstrate merits of issues that counsel failed to argue or argued inadequately. In re Personal
Restraint Petition of Lord, 123 Wn.2d 296, 314, 868 P.2d 835 (1994), cert. denied, 513 U.S. 849
(1994). As we explained above, all of Bell’s SAG issues are without merit. Thus, we hold that
Bell’s appellate counsel did not render ineffective assistance by failing to raise those issues in his
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it
is so ordered.