Opinion
No. 29406-4-III.
Filed: July 14, 2011. UNPUBLISHED OPINION.
Appeal from a judgment of the Superior Court for Spokane County, No. 10-1-00898-6, Salvatore F. Cozza, J., entered September 17, 2010.
Reversed by unpublished opinion per Korsmo, A.C.J., concurred in by Sweeney and Siddoway, JJ.
Rodney Duprie challenges the sufficiency of the evidence to support his conviction for possession of a stolen motor vehicle. We agree that the evidence does not establish that he, as a passenger, ever possessed the stolen car.
FACTS
A 911 call at 2:00 a.m. on February 22, 2010 reported that a car was parked on the sidewalk in front of the Auto Credit car lot in Spokane Valley and a man was walking through the car lot with a flashlight. Deputies responding to the call found a white Ford Taurus parked on the sidewalk with a man seated in the driver's seat. A second man was discovered on the lot after he suddenly "popped up" near a car.
The second man was identified as Mr. Duprie. A deputy arrested him for vehicle prowling as several cars had their dome lights on and trunks open. Searches revealed that Mr. Duprie had a screwdriver, several shaved keys, some flashlights, wire cutters, and a pair of pliers. Mr. Duprie stated that he had been a passenger in the Taurus; the driver, Christopher Wilson, agreed that Mr. Duprie had been his passenger.
Investigation showed the Taurus to have previously been stolen from Auto Credit. The license plates did not match the vehicle identification number. Additional license plates were found inside the Taurus, along with other tools associated with auto theft.
A jury convicted Mr. Duprie of possession of a stolen automobile, three counts of vehicle prowling, and one count of possession of motor vehicle theft tools. The trial court imposed a 50-month, prison-based DOSA sentence on the stolen automobile count, and concurrent 12-month sentences on the four gross misdemeanor offenses. Mr. Duprie then timely appealed to this court.
Drug Offender Sentencing Alternative.
ANALYSIS
Appellant presents three arguments in this appeal, but we need only discuss the first of them. A passenger does not exercise dominion and control over stolen property merely by sitting in a car.
The sentencing issue Mr. Duprie raised was subsequently corrected by the trial court. Mr. Duprie's challenge to the charging document on the felony count is moot in light of our decision on the sufficiency of the evidence challenge. The argument also is controlled by long-settled law contrary to his position. State v. Dixon, 78 Wn.2d 796, 802-803, 479 P.2d 931 (1971); State v. Rooney, 2 Wn.2d 17, 19, 97 P.2d 156 (1939); State v. Metcalf, 14 Wn. App. 232, 237-239, 540 P.2d 459 (1975), review denied, 87 Wn.2d 1009 (1976).
Well-settled standards of review govern this case. The reviewing court does not weigh evidence or sift through competing testimony. Instead, the question presented is whether there is sufficient evidence to support the determination that each element of the crime was proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979); State v. Green, 94 Wn.2d 216, 221-222, 616 P.2d 628 (1980). The reviewing court will consider the evidence in a light most favorable to the prosecution. Green, 94 Wn.2d at 221-222.
As charged here, the State was required to prove beyond a reasonable doubt:
(1) That on or about February 22, 2010, the defendant knowingly received, retained, possessed, concealed, or disposed of a stolen motor vehicle;
(2) That the defendant acted with knowledge that the motor vehicle had been stolen;
(3) That the defendant withheld or appropriated the motor vehicle to the use of someone other than the true owner or person entitled thereto; and
(4) That any of these acts occurred in the State of Washington.
Clerk's Papers at 27 (Jury Instruction 11).
Mr. Duprie contends that the State did not show that he knew the vehicle was stolen or that he possessed it. There was sufficient evidence that he knew the Taurus was stolen. It was operated with a shaved key; Mr. Duprie possessed several shaved keys and the Taurus also contained several more. There was ample evidence that Mr. Duprie and Mr. Wilson were in the car prowl/theft business and the jury could easily conclude that Mr. Duprie knew he was riding in a stolen car.
However, the evidence does not show that Mr. Duprie possessed the car. Possession of an item is either actual or constructive. State v. Summers, 107 Wn. App. 373, 384, 28 P.3d 780 (2001). Actual possession means having physical custody of an item, while constructive possession occurs when a person exercises dominion and control over an object. Id.
There is no evidence that Mr. Duprie actually possessed the Taurus. He was never seen driving the car, nor did he possess the keys to operate it. The remaining question is whether he exercised dominion and control over the car such that he can be considered to have been in constructive possession of it.
This court has previously concluded that a passenger does not possess a stolen motor vehicle. State v. Plank, 46 Wn. App. 728, 731 P.2d 1170 (1987). There, as here, the defendant was the passenger in a stolen car. Id. at 729. He provided a false story about how he and the driver came to use the car. Id. at 729-730. Analogizing to drug possession cases, this court concluded that a passenger does not exercise dominion and control over a stolen vehicle merely by riding in the car. Id. at 731-733. The court expressly rejected the argument that a passenger engaged in a joint criminal enterprise with the driver was therefore also exercising dominion and control over the stolen car. Id. at 731.
This case is in the same factual setting as Plank. Mr. Duprie was merely a passenger in the car. Other evidence strongly suggested that he knew the car was stolen and that he was working together with Mr. Wilson in criminal activity. However, there is no evidence to suggest that he actually exercised dominion and control over the car. He did not possess the key used to operate it. He was not reported to have directed Wilson's use of the vehicle. In short, the only evidence of dominion and control comes from the fact that he was a passenger in the car. That is insufficient. Plank, 46 Wn. App. at 733.
This court has likewise concluded in a drug possession case that a passenger in a motor vehicle did not exercise dominion and control over the vehicle to support constructive possession of the controlled substances. State v. Cote, 123 Wn. App. 546, 550, 96 P.3d 410 (2004).
The conviction is reversed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
SWEENEY, J. SIDDOWAY, J., concur.