State Of Washington, Respondent V. Kerry D. Grohs, Appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 49666-6-II
Respondent,
v. UNPUBLISHED OPINION
KERRY DEAN GROHS,
Appellant.
SUTTON, J. — Grohs appeals his conviction for possession of a controlled substance -
methamphetamine. Grohs argues that he received ineffective assistance of counsel because his
attorney failed to propose an unwitting possession instruction. Grohs did not receive ineffective
assistance of counsel and we affirm.
FACTS
The State charged Grohs with one count of possession of a controlled substance—
methamphetamine. After a CrR 3.5 hearing, the trial court admitted statements that Grohs made
to the arresting officer prior to his formal arrest.
The arresting officer, Deputy Brady Spaulding of the Cowlitz County Sheriff’s Office,
testified at Grohs’s jury trial. Spaulding testified that, on September 1, 2016, he stopped Grohs
for riding a bicycle after dark without a headlight. Spaulding ran his name and learned that Grohs
had a warrant for his arrest from Lewis County. While Spaulding was waiting for confirmation of
the warrant from Lewis County, he allowed Grohs to sit on the curb, eat the pie Grohs had with
him, and smoke a cigarette.
Filed
Washington State
Court of Appeals
Division Two
February 6, 2018

No. 49666-6-II
2
Grohs asked if he could get some more food out of his backpack. Prior to giving his
permission, Spaulding asked Grohs if there were any weapons, drugs, or contraband in the
backpack. Spaulding testified that Grohs told him there was methamphetamine in the backpack.
Spaulding asked Grohs to hand him the methamphetamine and Grohs handed him a salmon colored
folded piece of paper. The salmon colored paper contained a white crystalline substance that
Spaulding identified as consistent with methamphetamine. Later, the Washington State Crime Lab
confirmed that the white crystalline substance contained methamphetamine.
Grohs also testified at trial. Grohs testified that there were two officers present while they
were waiting for confirmation of the warrant from Lewis County. Grohs stated that the second
officer searched his backpack and was the one who removed the methamphetamine from the bag.
Finally, Grohs testified that he did not tell Spaulding that there was methamphetamine in the
backpack; Grohs told Spaulding “there might be meth in the bag.” Verbatim Report of Proceedings
(VRP) at 97. Grohs testified that he did not know for certain that the substance was
methamphetamine.
Grohs did not propose any jury instructions. During closing argument, Grohs argued
extensively that the State failed to prove that the substance the crime lab tested was the substance
Grohs had in his possession. In conclusion, Grohs told the jury,
[S]o you have to decide what was tested and what connection Mr. Grohs had to
what the substance was that was tested. And on that basis I would ask you to
consider it very carefully before you rush to do what the prosecutor wants you to
do and convict him of possessing methamphetamine.
There was something in the backpack that he doesn’t know if that was what
was tested at all. And the scientist who tested it can’t tell you if that’s what was in
the backpack, she doesn’t know. And so we’re asking that you not rush to convict
him on something that you can’t answer that question, period.

No. 49666-6-II
3
VRP at 121.
The jury found Grohs guilty of possession of a controlled substance—methamphetamine.
The trial court imposed a standard range sentence. Grohs appeals.
ANALYSIS
Grohs argues that he received ineffective assistance of counsel because his trial counsel
failed to propose an unwitting possession instruction.1 Because Grohs has failed to show the
absence of any legitimate trial tactic, Grohs ineffective assistance of counsel claim fails.
To prevail on an ineffective assistance of counsel claim, a defendant must show both
deficient performance and resulting prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
Counsel’s performance is deficient if it falls below an objective standard of reasonableness.
State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). Our scrutiny of counsel’s
performance is highly deferential; there is a strong presumption of reasonableness. McFarland,
127 Wn.2d at 335. To rebut this presumption, a defendant bears the burden of establishing the
1 WPIC 52.01 “Unwitting Possession” states,
A person is not guilty of possession of a controlled substance if the possession is
unwitting. Possession of a controlled substance is unwitting if a person [did not
know that the substance was in [his][her] possession] [or] [did not know the nature
of the substance].
The burden is on the defendant to prove by a preponderance of the evidence that
the substance was possessed unwittingly. Preponderance of the evidence means
that you must be persuaded, considering all of the evidence in the case, that it is
more probably true than not true.
11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 52.01, at 1196
(4th ed. 2016) (WPIC).

No. 49666-6-II
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absence of any conceivable trial tactic explaining counsel’s performance. Grier, 171 Wn.2d at 33.
To establish prejudice, a defendant must show a reasonable probability that the outcome of the
trial would have differed absent the deficient performance. Grier, 171 Wn.2d at 34. If a defendant
fails to establish either deficient performance or prejudice, the ineffective assistance of counsel
claim fails. Strickland, 466 U.S. at 697.
Here, Grohs would have been entitled to an unwitting possession instruction if his counsel
had requested it. Each party is entitled to have the trial court instruct the jury on its theory of the
case if there is evidence to support that theory. State v. Hughes, 106 Wn.2d 176, 191, 721 P.2d
902 (1986). The affirmative defense of unwitting possession requires the defendant to prove, by
a preponderance of the evidence, either that he did not know he was in the possession of the
controlled substance or that he did not know the nature of the substance he possessed. State v.
Staley, 123 Wn.2d 794, 799-800, 872 P.2d 502 (1994). Grohs testified that he told Spaulding that
he might have had methamphetamine, but that he did not know exactly what the substance was.
Because Grohs’s testimony could support the affirmative defense of unwitting possession, Grohs
would have been entitled to an unwitting possession instruction if his counsel had requested it.
Although Grohs was entitled to an unwitting possession instruction, Grohs cannot show
that there was an absence of a legitimate trial tactic in failing to request an unwitting possession
instruction. Here, Grohs’s defense was based on attacking the chain of custody and arguing that
the substance that was tested was not the substance that Grohs had in his backpack. Under this
strategy, the State continued to bear the burden of proof on the charge. However, if Grohs argued
the affirmative defense of unwitting possession, he would bear the burden of proving that the
possession was unwitting by a preponderance of the evidence. Because the only evidence that the

No. 49666-6-II
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possession was unwitting was Grohs’s testimony that he stated he might have had
methamphetamine in his backpack, trial counsel may have legitimately decided that the chain of
custody argument was more likely to be successful. Therefore, there is a legitimate trial tactic
supporting Grohs’s counsel’s decision not to request an unwitting possession instruction and Grohs
cannot show deficient performance. Because Grohs cannot show deficient performance, his
ineffective assistance of counsel claim fails.
We affirm.
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.
SUTTON, J.
We concur:
JOHANSON, J.
MAXA, A.C.J.