Opinion
No. 22376-1-III
Filed: December 30, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Grant County. Docket No. 03-1-00201-4. Judgment or order under review. Date filed: 09/02/2003. Judge signing: Hon. John Michael Antosz.
Counsel for Appellant(s), Paul J. II Wasson, Attorney at Law, 2521 W Longfellow Ave, Spokane, WA 99205-1548.
Counsel for Respondent(s), Teresa Jeanne Chen, Grant County Prosecutors Office, PO Box 37, Ephrata, WA 98823-0037.
Stephen Phillip Scott, Attorney at Law, Grant Pros Attorney, PO Box 37, Ephrata, WA 98823-0037.
Gary Hutt was convicted in a Grant County bench trial of one count of possessing methamphetamine and one count of possessing pseudoephedrine with intent to manufacture methamphetamine. On appeal, Mr. Hutt contends the evidence was insufficient to convict him of either count. We affirm.
FACTS
The facts were developed in a bench trial. On February 11, 2003, Grant County Deputy Dale Wagner was off duty and went shopping at the Othello Wal-Mart. When he parked his vehicle, he saw a tan van with three occupants pull into the parking space directly east of his vehicle. The driver of the van was later identified as Mr. Hutt. The passengers were later identified as Leroy Guillen and Michael Rosengrant.
Deputy Wagner saw Mr. Hutt and the two other occupants enter the store approximately 15 feet apart from each other. Deputy Wagner then saw Mr. Hutt proceed directly to the pharmacy aisle where he picked up approximately six to eight packages of a cold remedy containing pseudoephedrine. Mr. Hutt then placed all but three packages back on the shelf. Mr. Hutt took three packages to the check-out stand, made a purchase and proceeded to the exit with a Wal-Mart bag. Deputy Wagner also observed Mr. Rosengrant heading to the pharmacy aisle. Deputy Wagner called dispatch from the store's service center. When Mr. Hutt exited the store, he apparently saw Othello Police Lieutenant Robert Hampton in the parking lot. Mr. Hutt re-entered the store and proceeded to the restroom. Mr. Rosengrant exited the store and walked to the van. Mr. Rosengrant was contacted and arrested on an outstanding warrant. Mr. Hutt was located in the restroom and also arrested on an outstanding warrant.
He no longer had the Wal-Mart bag or any cold remedies in his possession. Mr. Guillen was seen exiting the store and was taken into custody. In a search of the van incident to arrest, officers located a black plastic bag containing jars, hoses, filters and other items consistent with use in a methamphetamine lab.
The van was searched pursuant to a warrant. In the glove box, detectives found used coffee filters with white powder residue, later identified as methamphetamine. Detectives found an address book in the glove compartment containing a listing for Mr. Hutt's mother. Throughout the van, detectives found various bags and backpacks containing pills, part of another address book, drug paraphernalia, baggies, lithium batteries, a book entitled, `Secrets of Methamphetamine Manufacture,' a pearl handled knife, and various items associated with methamphetamine manufacture. Clerk's Papers (CP) at 36.
Mr. Hutt's fingerprints were identified on the knife and a jar containing bilayer solution, which is a common byproduct of methamphetamine manufacture. In the main compartment of the van, detectives found a duffle bag containing a stuffed frog and a photo album bearing the inscription, `To Gary, Love Angie.' Report of Proceedings (RP) (July 3, 2003) at 41.
The keys to the van were examined and noted to be on a bullfrog key chain.
A cell phone displaying, `Bullfrog's phone' was found between the front seats near three packages of cold medicine in a Wal-Mart bag. CP at 36.
Mr. Hutt's street name is `Bullfrog.' CP at 36.
Mr. Hutt was originally charged with conspiracy to manufacture methamphetamine; possession of ephedrine, pseudoephedrine, or anhydrous ammonia with intent to manufacture methamphetamine; possession of methamphetamine; and use of drug paraphernalia.
Mr. Rosengrant testified for the defense. He claimed to have borrowed the van prior to February 11, 2003, but testified he asked Mr. Hutt to drive the van that day. Mr. Rosengrant testified all of the `bad stuff' found in the van belonged to him. RP (July 3, 2003) at 108. He said he asked Mr. Hutt and Mr. Guillen to buy items containing pseudoephedrine for him because he was involved in making methamphetamine, and claimed Mr. Hutt was not otherwise involved. The court did not find the testimony of Mr. Rosengrant to be `generally credible.' CP at 38.
Mr. Hutt was convicted of possession of pseudoephedrine with intent to manufacture methamphetamine and possession of methamphetamine. He appealed.
ANALYSIS
The issue is whether sufficient evidence exists to support Mr. Hutt's convictions for possessing methamphetamine and possessing pseudoephedrine with intent to manufacture methamphetamine.
The test for sufficiency of the evidence is whether, after viewing the evidence and all reasonable inferences most favorably to the State, any rational trier of fact could have found guilt beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980). We defer to the trier of fact to weigh the evidence and judge the credibility of the witnesses. State v. Bryant, 89 Wn. App. 857, 869, 950 P.2d 1004 (1998) (citing State v. Hayes, 81 Wn. App. 425, 430, 914 P.2d 788 (1996)). Both direct and circumstantial evidence can be used to establish guilt. State v. Brooks, 45 Wn. App. 824, 826, 727 P.2d 988 (1986).
In prosecutions for both possession of methamphetamine (RCW 69.50.401) and possession of pseudoephedrine with intent to manufacture methamphetamine (RCW 69.50.440), the State must prove possession by the defendant. The State may establish possession by demonstrating either actual or constructive possession. State v. Callahan, 77 Wn.2d 27, 29, 459 P.2d 400 (1969).
First, Mr. Hutt was convicted of possession of methamphetamine based on methamphetamine residue found on coffee filters in the glove compartment of the van. Because the methamphetamine was found in the van, the State must establish Mr. Hutt constructively possessed the methamphetamine.
Constructive possession is established by showing a defendant had dominion and control over either the contraband or the premises where the contraband was found. State v. Potts, 93 Wn. App. 82, 88, 969 P.2d 494 (1998). A vehicle is a `premises' for purposes of this analysis. State v. Mathews, 4 Wn. App. 653, 656, 484 P.2d 942 (1971). The reviewing court examines the `totality of the situation' to determine if there is substantial evidence demonstrating dominion and control. State v. Morgan, 78 Wn. App. 208, 212, 896 P.2d 731 (1995) (citing State v. Partin, 88 Wn.2d 899, 906, 567 P.2d 1136 (1977)). For example, a trier of fact could reasonably infer dominion and control of an automobile from evidence a defendant had the car keys and was driving. See State v. Potts, 1 Wn. App. 614, 617, 464 P.2d 742 (1969). Constructive possession need not be exclusive and may be joint possession. Morgan, 78 Wn. App. at 212 (citing State v. Harris, 14 Wn. App. 414, 417, 542 P.2d 122 (1975)).
Mr. Hutt argues the State failed to show constructive possession based upon Mr. Rosengrant's testimony. But the court did not find Mr. Rosengrant credible. We will not second-guess witness credibility determinations on appeal. See Bryant, 89 Wn. App. at 869. In any case, Mr. Hutt's possession need not be exclusive. See Morgan, 78 Wn. App. at 212. Rather, the court was allowed to infer Mr. Hutt shared joint possession of the van with Mr. Rosengrant. Id.
Further, Deputy Wagner identified Mr. Hutt as the driver of the van where the methamphetamine was found. Mr. Hutt's fingerprints were identified on a knife and jar containing bilayer solution in the van. Investigators also found a red duffle bag containing Mr. Hutt's photo album in the van. The investigators found an address book wedged between the window and interior of the van door containing the phone numbers of Mr. Hutt's family. Another address book apparently belonging to Mr. Hutt was discovered in the glove compartment where the coffee filters containing the methamphetamine residue were found. The investigators found a stuffed frog and a cell phone that flashed, `Bullfrog's phone,' in the van. RP at 85. The keys to the van were on a bullfrog keychain. Mr. Hutt's nickname is `Bullfrog.' RP at 85.
In sum, viewing this evidence in the light most favorable to the State, the court could reasonably infer dominion and control of the `premises' where the methamphetamine was found. See Morgan, 78 Wn. App. at 212. Accordingly, sufficient evidence existed to convict Mr. Hutt of possessing methamphetamine.
Second, Mr. Hutt was convicted of possessing pseudoephedrine with intent to manufacture methamphetamine based on Deputy Wagner's observations in the Wal-Mart store. Mr. Hutt argues solely the State was required to show physical evidence of his possession of pseudoephedrine. He does not contest the evidence supports an intent to manufacture. However, the State's evidence, when taken as true, supports the inference Mr. Hutt had actual possession of pseudoephedrine prior to his apprehension. Actual possession means the item is in the personal custody of the defendant. Callahan, 77 Wn.2d at 29. The State must show `actual control, not a passing control which is only momentary handling.' Id. Deputy Wagner saw Mr. Hutt purchase three packages of medicine containing pseudoephedrine at the Wal-Mart store. He saw Mr. Hutt leave the store with the medicine in a bag, then return and go to the restroom where he was later found without the medicine. Mr. Rosengrant related he had asked Mr. Hutt to purchase items containing pseudoephedrine for him at the Wal-Mart store. Under the circumstances, it is reasonable to infer Mr. Hutt actually possessed the pseudoephedrine before entering the restroom and disposed of it before he was apprehended. Accordingly, sufficient evidence supports Mr. Hutt's conviction for possessing pseudoephedrine with intent to manufacture methamphetamine.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for pubic record pursuant to RCW 2.06.040.
KATO, C.J. and KURTZ, J., concur.