State v. Kennedy, 118 Wn. App. 1023, 2003

Sharon Elizabeth Chirichillo

Case Conclusion Date:August 26, 2003

Practice Area:Criminal Defense

Outcome:The judgment of the superior court was affirmed.

Description:Appellant sought review from the judgment of the Superior Court of Clallam County (Washington), challenging her conviction for unlawful possession of heroin found in the pocket of a jacket she was wearing and in her purse on the ground that the possession was unwitting. During a search incident to a valid arrest, officers found heroin in appellant's jacket pocket and purse. Appellant was convicted and sought an appeal. Appellant argued that the trial court should have given a unanimity instruction, as the state charged her with one count of possession, but presented evidence of two instances of possession: the purse and the jacket. The state claimed that a unanimity instruction was unnecessary, as the two instances of possession constituted a continuing course of conduct. Appellant did not deny that she possessed the heroin, but asserted an unwitting possession defense. Thus, there was no need for a unanimity instruction, because the jury was required to either find that someone else placed the heroin in appellant's possession or that appellant was lying and knew that she possessed it. Appellant next claimed prosecutorial misconduct, because the prosecutor expressed his personal opinion of her guilt and about the evidence. Although the prosecutor improperly expressed his opinion as many as five times during closing argument, the trial judge issued curative instructions, and appellant failed to show prejudice from the comments. The judgment of the superior court was affirmed.

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