Opinion
No. 28366-6-III.
January 20, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for Benton County, No. 08-1-00232-6, Carrie L. Runge, J., entered July 29, 2009.
Affirmed by unpublished opinion per Sweeney, J., concurred in by Kulik, C.J., and Korsmo, J.
In a drug possession case, evidence of momentary handling does not establish actual possession. State v. Callahan, 77 Wn.2d 27, 29, 459 P.2d 400 (1969). But momentary handling is not established where police action terminates a person's control over a controlled substance. State v. Summers, 107 Wn. App. 373, 385, 28 P.3d 780, 43 P.3d 526 (2001). Here, officers found a pipe with cocaine residue in the defendant's pocket during a search incident to arrest. This evidence establishes actual possession, not momentary handling. We, therefore, conclude that the trial court properly refused to instruct on momentary handling. And we conclude that substantial evidence supports the jury's guilty verdict. We therefore affirm the defendant's conviction.
FACTS
Officers Wayne Meyer and Ken Melone arrested Mark Davis on some misdemeanor charges in 2007. Officer Meyer searched Mr. Davis incident to that arrest. He found and seized a little metal pipe with cocaine residue from the right front pocket of Mr. Davis's pants. The State charged Mr. Davis with unlawful possession of a controlled substance.
At trial, Officer Melone testified that his report said he, not Officer Meyer, found the pipe in the right pocket of Mr. Davis's coat. But, when asked who better remembered the search, he said that Officer Meyer searched Mr. Davis and would therefore remember the details of the search better than he would. Mr. Davis objected to this question and answer but the court overruled his objection.
Mr. Davis then testified in his own defense. He admitted that the pipe was in his pocket the day of his arrest. He also admitted to using drugs earlier that day but denied using the pipe in his pocket. He explained that he had found the pipe in a toolbox while cleaning his garage and put it in his pocket to throw away so his grandchildren would not find it.
Defense counsel proposed a jury instruction on momentary handling. The trial court declined to give the instruction. It reasoned that the facts did not establish momentary handling and that its instruction defining possession allowed Mr. Davis to argue that the evidence of his temporary possession of the pipe did not amount to possession. The court instructed the jury that possession is "having a substance in one's custody or control. Actual possession occurs when the item is in the actual physical custody of the person charged with possession." Clerk's Papers (CP) at 16.
The court also instructed the jury that it was the sole judge of the credibility of each witness. The court told the jury that when judging credibility, it could consider "the quality of a witness's memory while testifying," among other things. CP at 7-8. Mr. Davis then argued in closing that the State had failed to prove more than momentary handling of cocaine and that the jury should find him not guilty. The jury found Mr. Davis guilty.
DISCUSSION
Sufficient Evidence of Possession
Mr. Davis contends the State failed to show possession because the pipe in his pocket contained only a small amount of cocaine residue and he possessed the pipe with the intention of throwing it away.
We pass on a claim of insufficient evidence by reviewing the record for evidence that supports the jury's verdict. Summers, 107 Wn. App. at 388. Substantial evidence is any evidence that would allow a fact finder to find an essential element of the crime beyond a reasonable doubt. Id.
It is illegal to possess a controlled substance. RCW 69.50.4013(1). It is illegal even if the controlled substance is drug residue in a pipe because there is no minimum amount of drug that must be possessed in order to establish possession of a controlled substance. State v. George, 146 Wn. App. 906, 919, 193 P.3d 693 (2008). Nor is intent required. State v. Bradshaw, 152 Wn.2d 528, 98 P.3d 1190 (2004).
A finding of possession is supported by evidence that the possession was either actual or constructive. State v. Staley, 123 Wn.2d 794, 798, 872 P.2d 502 (1994). "Actual possession means that the goods are in the personal custody of the person charged with possession; whereas, constructive possession means that the goods are not in actual, physical possession, but that the person charged with possession has dominion and control over the goods." Callahan, 77 Wn.2d at 29. The length of time a substance was in the defendant's control "is only one factor to be considered in determining whether control, and therefore possession, has been established." Staley, 123 Wn.2d at 801; Callahan, 77 Wn.2d at 29.
Here, Mr. Davis had personal custody of a pipe containing cocaine residue in the pocket of the pants he was wearing when the officers arrested him. This is substantial evidence of possession regardless of how long the pipe was in his pocket. Id. Jury Instruction on Momentary Handling
Mr. Davis requested that the trial court give the jury at least one of the following instructions on momentary handling:
1. "The jury may consider momentary, temporary, or fleeting handling of a narcotic drug." CP at 36.
2. "Evidence of brief duration or momentary handling of a narcotic drug goes to the question of whether the defendant had possession in the first instance." CP at 37.
3. "Momentary, temporary, or fleeting handling of a narcotic drug is lawful without other evidence of control over the narcotic drug." CP at 38.
4. "A momentary, temporary, or fleeting handling of a narcotic drug goes to the question of whether the State has carried its burden of proof on the element of possession." CP at 39.
5. "A momentary handling of a narcotic drug along with other sufficient indicia of control over the narcotic, may support a finding of possession." CP at 40.
We review de novo the trial court's refusal to instruct the jury on momentary handling because the refusal was based on a legal ruling that the evidence did not support the instruction. State v. Walker, 136 Wn.2d 767, 772, 966 P.2d 883 (1998).
Mr. Davis contends the trial court confused his request for a momentary handling instruction with a request for an unwitting possession instruction. The record does not support this contention. It shows Mr. Davis based his request for a momentary handling instruction on Staley, 123 Wn.2d 794. The trial court accurately noted that the issue in Staley was whether the defendant was entitled to an instruction on the affirmative defense of unwitting possession. It then refused to instruct the jury on momentary handling on the ground that there was insufficient evidence to support the theory.
A criminal defendant is entitled to a proposed jury instruction on his theory of the case only if sufficient evidence supports it. State v. Redmond, 150 Wn.2d 489, 493, 78 P.3d 1001 (2003). Mr. Davis's theory was that he did not actually possess cocaine because he pocketed the pipe with the intention of throwing it away. But Mr. Davis did not throw the pipe away. He put it in his pocket. Indeed, he had actual physical control over the pipe until a police officer seized it from him during the search incident to his arrest. We agree that evidence of momentary handling (or passing control) does not establish actual possession. Callahan, 77 Wn.2d at 29. But Mr. Davis fails to show momentary handling where police action terminated his control over the controlled substance. Summers, 107 Wn. App. at 385; State v. Werry, 6 Wn. App. 540, 548, 494 P.2d 1002 (1972).
Mr. Davis's stated intention for handling the pipe alone is not evidence of momentary handling. Summers, 107 Wn. App. at 385 (quoting Werry, 6 Wn. App. at 548). The State produced substantial evidence of actual possession. We, therefore, conclude that, based on the evidence in this case, the trial court properly refused to instruct the jury on momentary handling.
Prosecutorial Misconduct — Witness Vouching
Mr. Davis next claims the prosecutor committed misconduct by asking Officer Melone if he or Officer Meyer had a better memory of the search incident to Mr. Davis's arrest. To prevail, Mr. Davis had to show that the prosecutor's conduct was improper and prejudicial. State v. Yates, 161 Wn.2d 714, 774, 168 P.3d 359 (2007). "The trial judge is generally in the best position to determine whether the prosecutor's actions were improper and whether, under the circumstances, they were prejudicial." State v. Ish, ___ Wn.2d ___, 241 P.3d 389, 392 (2010). So we review Mr. Davis's claim of prosecutorial misconduct for an abuse of discretion. Id.
Officers Meyer and Melone arrested Mr. Davis. Officer Meyer testified that he searched Mr. Davis incident to arrest and seized the pipe from Mr. Davis's pants pocket. Officer Melone testified likewise but admitted that his incident report said he searched Mr. Davis and seized the pipe from Mr. Davis's coat pocket. In an attempt to resolve the inconsistency between the testimony and Officer Melone's report, the prosecutor asked Officer Melone if he or Officer Meyer had a better memory of the search:
Q. Do you have an opinion on whose memory would be better of that aspect of the incident? Yours or his?
A. It would be Officer Meyer.
[DEFENSE COUNSEL]: Objection.
THE COURT: The answer will stand.
Report of Proceedings (June 29-30, 2009) at 32-33.
It is improper for a prosecutor to ask a witness to judge the credibility of another witness. State v. Suarez-Bravo, 72 Wn. App. 359, 366, 864 P.2d 426 (1994). The question invades the province of the jury. Id. But improper conduct is prejudicial only if it is substantially likely to affect the jury's verdict. Yates, 161 Wn.2d at 774. We assess the prejudicial effect of improper conduct in the context of the parties' arguments, the evidence addressed in the arguments, the issues in the case, and the jury instructions. Id. And we conclude that the question here was not prejudicial.
First, the question did not bear upon an ultimate issue of fact. There was no question that the pipe was on Mr. Davis at the time of his arrest. Mr. Davis admitted as much. The question for the jury was whether Mr. Davis possessed a controlled substance given the fact that the pipe was in his pocket. Moreover, the court instructed the jury that it was the sole judge of each witness's credibility. And we presume the jury followed that instruction. State v. Stein, 144 Wn.2d 236, 247, 27 P.3d 184 (2001). Finally, the State did not refer to the challenged question and answer during closing. But Mr. Davis did. He used the inconsistency in the officers' testimonies to his advantage and argued that, in light of Mr. Davis's admission, the jury should find his testimony credible. The prosecutor's question, then, had little, if any, prejudicial effect.
We affirm the conviction for possession of a controlled substance.
A majority of the panel has determined that 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.
KULIK, C.J. and KORSMO, J., concur.