Opinion
No. 36915-0-II.
November 4, 2008.
Appeal from a judgment of the Superior Court for Thurston County, No. 07-1-01343-5, Richard A. Strophy, J., entered October 31, 2007.
Affirmed by unpublished opinion per Armstrong, J., concurred in by Houghton and Quinn-Brintnall, JJ.
UNPUBLISHED OPINION.
Daniel J. Kearney appeals his Thurston County convictions of unlawful possession of methamphetamine and marijuana. He contends that the evidence was insufficient to prove possession and that, in any case, he established the affirmative defense of unwitting possession. We affirm.
A commissioner of this court initially reviewed the matter pursuant to RAP 18.14, and referred it to a panel of judges.
FACTS
Thurston County Sheriff's Sergeant Kenneth Clark contacted Kearney in response to a call about someone sleeping in a car that was parked "in the travel portion" of Evergreen Valley Road. Report of Proceedings (RP) at 45, 48. Sergeant Clark also had information from dispatch that there was an outstanding warrant for the registered owner of the car.
When Clark asked Kearney why he was parked in the middle of the road, Kearney replied that he was "trying to fix the car." RP at 51. He identified himself as Daniel Jason Carney. A warrants check on that name came up with the name Daniel Jason Kearney, and Kearney ultimately admitted that was who he was. Clark arrested him on the warrant and searched the passenger compartment of his vehicle incident to that arrest. On the front passenger seat, the officer found a blue canvas pouch. There were two bindles in the pouch, one containing some white powder, and the other, green vegetable matter. Those substances proved to be methamphetamine and marijuana.
Kearney testified that he owned the car in which the drugs were found, but denied that the blue pouch was his, or that he knew what was inside it. He said the pouch belonged to either "Angie" or "Flo," two women who had been in his car the morning before the arrest. RP at 112-113. He admitted that he used various illicit drugs; that methamphetamine was his drug of choice; and that he had used methamphetamine on the day of his arrest. He explained that he had "blacked out" afterwards, and did not know how he came to be on Evergreen Valley Road. RP at 115-16. The jury convicted him as charged, and this appeal followed.
DISCUSSION
Kearney challenges the sufficiency of the evidence, arguing that it showed only that there were drugs present in a car over which he had dominion and control, not enough to support the convictions. Evidence is sufficient to support a conviction if, viewed in the light most favorable to the State, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). An insufficiency claim admits the truth of the State's evidence and requires that all reasonable inferences be drawn in favor of the State and interpreted most strongly against the defendant. Salinas, 119 Wn.2d at 201. Circumstantial evidence is as equally reliable as direct evidence. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). Credibility determinations are for the trier of fact and are not subject to appellate review. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
Unlawful possession of a controlled substance has no mens rea requirement. See RCW 69.50.4013(1); RCW 69.50.4014; State v. Eaton, 143 Wn. App. 155, 160, 177 P.3d 157 (2008). The State simply bears the burden of proving that the substance in question is a controlled substance and that the defendant had possession of it. Eaton, 143 Wn. App. at 160. Possession can be actual or constructive. State v. Staley, 123 Wn.2d 794, 798, 872 P.2d 502 (1994). Actual possession requires that the defendant have personal, physical custody of the controlled substance. State v. Callahan, 77 Wn.2d 27, 29, 459 P.2d 400 (1969). As there was no such evidence here, the State had to prove constructive possession.
RCW 69.50.4013(1) provides that "[i]t is unlawful for any person to possess a controlled substance unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his or her professional practice, or except as otherwise authorized by this chapter."
Constructive possession requires that the defendant have dominion and control over the contraband. State v. Jones, 146 Wn.2d 328, 333, 45 P.3d 1062 (2002); Staley, 123 Wn.2d at 798. As Kearney argues, mere proof of proximity to the controlled substance is insufficient to establish possession. State v. Bradford, 60 Wn. App. 857, 862, 808 P.2d 174 (1991). We look at all the circumstances to determine whether the sufficient evidence supports a reasonable inference of dominion and control. See State v. Partin, 88 Wn.2d 899, 906, 567 P.2d 1136 (1977). One indication of dominion and control is dominion and control of the premises where the contraband is found. See State v. Huff, 64 Wn. App. 641, 653, 826 P.2d 698 (1992); State v. Potts, 1 Wn. App. 614, 617, 464 P.2d 742 (1969). Another is the ability to reduce the contraband to actual possession immediately. Jones, 146 Wn.2d at 333.
A motor vehicle is considered "premises" for the purpose of constructive possession. State v. Huff, 64 Wn. App. 641, 654, 826 P.2d 698 (1992) (citing State v. Mathews, 4 Wn. App. 653, 656, 484 P.2d 942 (1971)).
Here, Kearney owned the vehicle where the controlled substances were found, and he was its sole occupant. The pouch was within easy reach of the driver's seat where he was sitting, and it was in plain view. In addition, Kearney admitted that he was a user of methamphetamine, and had, in fact, used the drug on the day of his arrest. It was reasonable to infer that the pouch contained his supply of the drug. See Huff, 64 Wn. App. at 654 (indicia of possession included fact that Huff smelled of methamphetamine). The circumstances here support a reasonable inference that Kearney had dominion and control of the blue pouch and the drugs inside it.
Kearney also argues that even if the State established constructive possession, he provided sufficient evidence to prove that the possession was unwitting. Unwitting possession is a judicially created affirmative defense that may excuse a defendant's behavior, notwithstanding his violation of the letter of the statute. State v. Hundley, 72 Wn. App. 746, 750-51, 866 P.2d 56 (1994), aff'd, 126 Wn.2d 418, 895 P.2d 403 (1995). To successfully assert the affirmative defense of unwitting possession, a defendant must prove by a preponderance of the evidence that he was unaware of his possession, or did not know the nature of the substance. Staley, 123 Wn.2d at 799.
Unwitting possession is a question for the jury. State v. Mathews, 4 Wn. App. 653, 658, 484 P.2d 942 (1971). Kearney said that the pouch was not his, and he did not know what was in it. That was enough to allow the jury to consider the defense. But they were not required to accept it. Apparently, they did not, and that credibility determination is not subject to review. Camarillo, 115 Wn.2d at 71.
The judgment is affirmed.
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 pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, P.J. and QUINN-BRINTNALL, J., concur.