Opinion
No. 61318-9-I.
May 4, 2009.
Appeal from a judgment of the Superior Court for Whatcom County, No. 06-1-01029-1, Charles R. Snyder, J., entered February 21, 2008.
Reversed by unpublished opinion per Becker, J., concurred in by Dwyer, A.C.J., and Agid, J.
UNPUBLISHED OPINION
Jered Fullen was found guilty of unlawful possession of a controlled substance (methamphetamine) based upon his close proximity to a pipe containing methamphetamine residue and the trial court's finding that Fullen's behavior before and after his arrest was consistent with the behavior of someone under the influence of a controlled substance. The evidence was insufficient to convict Fullen. We reverse and dismiss the charge with prejudice.
FACTS
According to undisputed findings of fact entered by the trial court, Fullen's arrest occurred on a July evening in 2006 shortly after a drive-by shooting in Whatcom County. Sheriff's deputies saw a vehicle they believed was involved in the shooting parked at a trailer. All but one of the people inside the trailer, including someone who identified himself as the renter, came out when asked. To force the remaining person out, the deputies shot chemical gas into the trailer. Later, they saw a breeze blowing out of a bedroom window, which led them to believe that the person inside had set up a fan to ventilate the trailer. Eventually, the deputies prepared to storm the house, but the window blinds moved, and a deputy saw Fullen lying on a couch. Fullen did not respond to commands until a deputy shined a light on him.
Deputies searched the house and found a revolver in a fireplace and a rifle concealed in a pile of clothes. They also found a pipe containing methamphetamine residue under the couch cushions where Fullen had been lying. Fullen initially told the deputies that he had been sleeping and had not heard them, but he later admitted he heard them but did not want to come out.
On July 26, 2006, the State charged Fullen with one count of unlawful possession of a controlled substance: methamphetamine. He petitioned and was found eligible for drug court. By proceeding in drug court, Fullen agreed that if he was terminated from drug court, a court would determine his guilt for the charge based upon "the law enforcement/investigative agency reports or declarations, witness statements, field test results, lab test results, or other expert testing or examinations such as fingerprint or handwriting comparisons, which constitute the basis for the prosecution of the case(s)."
Fullen later violated the terms and conditions of drug court and was terminated from it. According to his agreement, he was then tried on the possession charge on stipulated facts. A laboratory analysis established that the pipe found in the couch cushions contained methamphetamine residue, and on February 21, 2008, the trial court found Fullen guilty as charged. The court stated in its findings and conclusions that Fullen's conduct before and after his arrest was consistent with a person being under the influence of a controlled substance.
ANALYSIS
Fullen argues that the evidence was insufficient to find him guilty. He contends that the court's finding that his behavior was consistent with a person being under the influence of a controlled substance was not supported by evidence in the record and did not support a conclusion that he constructively possessed the methamphetamine pipe.
Evidence is sufficient to support a conviction if, when viewed in the light most favorable to the State, any reasonable trier of fact could find the essential elements of the offense beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221-22, 616 P.2d 628 (1980). When a criminal defendant challenges the sufficiency of the evidence, he admits the truth of the State's evidence and all reasonable inferences that can be drawn therefrom. State v. Goodman, 150 Wn.2d 774, 781, 83 P.3d 410 (2004). Circumstantial evidence is as reliable as direct evidence. State v. Myers, 133 Wn.2d 26, 38, 941 P.2d 1102 (1997).
The due process clause of the Fourteenth Amendment requires the prosecution to prove beyond a reasonable doubt every element of the crime charged. State v. Hundley, 126 Wn.2d 418, 421, 895 P.2d 403 (1995). In a prosecution for unlawful possession of a controlled substance, the State must establish the nature of the substance and the fact that the defendant possessed the substance. State v. Pierce, 134 Wn. App. 763, 774, 142 P.3d 610 (2006).
Possession may be actual or constructive. State v. Callahan, 77 Wn.2d 27, 29, 459 P.2d 400 (1969). A defendant has actual possession if the substance is in his personal custody. Callahan, 77 Wn.2d at 29. A defendant has constructive possession of a substance if he has dominion and control over it or the premises where it is located. Callahan, 77 Wn.2d at 29; State v. Bradford, 60 Wn. App. 857, 862, 808 P.2d 174 (1991). Standing alone, close proximity to a substance is insufficient to establish constructive possession. State v. A.T. P.-R., 132 Wn. App. 181, 185, 130 P.3d 877 (2006). Whether an individual had dominion and control over a controlled substance is determined by considering the totality of the circumstances. Bradford, 60 Wn. App. at 862-63. Substantial evidence is required for a fact finder to reasonably infer that the defendant had dominion and control over the contraband. State v. Enlow, 143 Wn. App. 463, 469, 189 P.3d 366 (2008).
Because this case was tried to the court without a jury we must determine, first, whether the evidence supports the findings of fact, next, whether the findings of fact support the conclusions of law and, finally, whether the conclusions of law support the judgment. Enlow, 143 Wn. App. at 467. When findings are based solely on stipulated facts, we review the factual findings de novo. State v. Rowe, 93 Wn.2d 277, 280, 609 P.2d 1348 (1980).
Fullen contends that the stipulated record does not support one of the court's findings of fact:
Mr. Fullen initially claimed that he had been sleeping and had not heard the deputies outside. Later, he admitted that he heard the deputies requesting that he come out, but did not want to leave the trailer. Mr. Fullen's conduct both before and after his arrest was consistent with a person being under the influence of a controlled substance.
Finding of Fact 7. Fullen argues that no evidence in the record supports the part of the finding regarding his story about sleeping and not hearing the deputies, but he stipulated that the court could determine his guilt based upon investigative agency declarations, and the evidence that he first claimed he was sleeping was included in the prosecutor's affidavit of probable cause. The finding that his conduct before and after his arrest was consistent with a person being under the influence of a controlled substance, however, is more problematic.
A trier of fact may infer the existence of a fact essential to guilt from another fact if reason and experience support the inference. State v. Bencivenga, 137 Wn.2d 703, 707, 974 P.2d 832 (1999). The State argues that the finding was supported by the judge's reason and experience. The judge stated in his oral ruling that he could not think of any reason why Fullen remained in the trailer after the deputies shot chemical gas into it other than that he was under the influence of a controlled substance.
The inference that Fullen would not have remained in the trailer unless his judgment was somehow impaired is not unreasonable, but there is no basis for making the leap that he must have been under the influence of a controlled substance, and there is no basis in the record to support a further inference that he was under the influence of methamphetamine specifically. Therefore, even though it may be fair to say that Fullen's behavior was "consistent with" being under the influence of a controlled substance, the finding does not support the conclusion that Fullen constructively possessed the methamphetamine that was under the cushions on the couch.
We next consider whether the remaining evidence was sufficient to establish that Fullen had dominion and control over the pipe. The court noted in its oral findings that Fullen was the only person on the couch or in the trailer. But at least five people were detained outside the trailer before Fullen was arrested. Any one of them could have placed the pipe in the couch cushions. Fullen's fingerprints were not found on the pipe and there was no evidence to show how recently the pipe had been used. Nor was there evidence that Fullen had dominion and control over the trailer. Someone else who was detained at the scene identified himself as the renter.
The State asks us to infer from Fullen's staying in the trailer that he was conscious of his guilt and was trying to avoid being arrested and prosecuted. Because we are reviewing the evidence de novo, we may consider this argument even though the trial court did not draw this inference or make a finding that Fullen was trying to avoid being arrested. As discussed above, the trial court believed no one in his right mind would stay in a trailer that was being gassed.
Evidence of resistance to arrest, concealment, assumption of a false name, and related conduct are admissible if they allow a reasonable inference of consciousness of guilt of the charged crime. State v. Freeburg, 105 Wn. App. 492, 497-98, 20 P.3d 984 (2001); see also State v. Bruton, 66 Wn.2d 111, 112, 401 P.2d 340 (1965) (rationale underlying admissibility of evidence of flight following the commission of a crime is that flight is an instinctive reaction to consciousness of guilt or is an attempt to avoid arrest and prosecution). Fullen's behavior does not suggest what crime he might have feared being prosecuted for. If he was aware of the pipe containing methamphetamine residue and wanted to avoid being arrested for possession of it, one would assume he would have come out of the trailer and left the pipe behind.
The only substantial evidence indicating that Fullen possessed the methamphetamine was his proximity to the pipe. That evidence was insufficient to to support an inference of dominion and control.
Reversed and dismissed.
WE CONCUR.