Opinion
No. 25899-8-III.
May 13, 2008.
Appeal from a judgment of the Superior Court for Spokane County, No. 06-1-01623-9, Robert D. Austin, J., entered February 7, 2007.
Affirmed by unpublished opinion per Thompson, J. Pro Term., concurred in by Kulik, A.C.J., and Sweeney, J.
Timothy Lynn Gunning challenges the sufficiency of the evidence to convict him of possession of a controlled substance (methamphetamine). He contends that the State did not prove constructive possession of methamphetamine found in a backpack he left at an acquaintance's apartment for a week. He happened to be at the apartment complex to retrieve the backpack and other belongings on the day of a police search. He admitted ownership of the backpack, but disavowed any knowledge of the drugs in the backpack, implying the drugs were stashed with his belongings after he left them in the apartment. Sufficient evidence supports the conviction and we affirm.
FACTS
Mr. Gunning was charged with one count of possession of a controlled substance (methamphetamine). He waived his right to a jury trial. The following unchallenged facts were educed through his combined bench trial and CrR 3.5 hearing.
On March 14, 2006, police executed a search warrant after conducting controlled buys in a lower unit apartment located at 1808 West College in Spokane, Washington. After the warrant was executed, police received information of drug activity in the upper unit of the same building. Robert Kinyon, an acquaintance of Mr. Gunning's and a resident of that unit, consented to a search of his apartment. Mr. Gunning, who was outside the apartment building when the search was conducted, was detained. Police found methamphetamine and drug paraphernalia inside Mr. Kinyon's apartment unrelated to Mr. Gunning. Police also found several backpacks in a corner on the floor of the studio apartment. All of the backpacks contained men's clothing. In one of the backpacks, which Mr. Gunning later claimed, was a baggie that contained an off-white substance, a cinnamon canister containing small gray rocks, and a baggie that contained a red substance. The white substance tested positive for methamphetamine.
Mr. Gunning was informed of his constitutional rights and questioned outside of the apartment building. He told police that he had found the cinnamon canister and baggie of "red clay" while riding on a local bike path a week earlier. Report of Proceedings (RP) at 48. He denied, however, any knowledge of the presence of the methamphetamine. The backpack was out of Mr. Gunning's dominion and control for at least some period of time following his bike ride.
Police suspected that the cinnamon canister contained rock salt and the red substance was red phosphorus, but no tests were conducted to determine the substances. The officer testified that both items are used in the manufacture of methamphetamine.
Mr. Gunning's statements were found admissible. He was convicted as charged. The court later entered findings of fact and conclusions of law.
ANALYSIS
The State was required to prove that the substance was a controlled substance and that Mr. Gunning possessed it. State v. Staley, 123 Wn.2d 794, 798, 872 P.2d 502 (1994). Mr. Gunning does not challenge the nature of the substance.
The State had to prove that Mr. Gunning had actual or constructive possession of the drugs. Id. "`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.'" Id. (quoting State v. Callahan, 77 Wn.2d 27, 29, 459 P.2d 400 (1969)). Mr. Gunning was not in physical custody of the drugs when they were discovered. The State therefore had to prove constructive possession.
"Whether an individual has dominion and control over a controlled substance is determined by considering the various indicia of dominion and control and their cumulative effect — that is, the totality of the situation." State v. Bradford, 60 Wn. App. 857, 862-63, 808 P.2d 174 (1991) (citing State v. Partin, 88 Wn.2d 899, 906, 567 P.2d 1136 (1977)). Factors noted by our courts as evidence of dominion and control include the ability to reduce the object to actual possession and proximity to the contraband, although mere proximity is insufficient to establish constructive possession. State v. Hagen, 55 Wn. App. 494, 498-99, 781 P.2d 892 (1989). No one factor is dispositive. State v. Turner, 103 Wn. App. 515, 521, 13 P.3d 234 (2000).
Once the State establishes prima facie evidence of possession, the defendant may affirmatively assert that his possession of the contraband was unwitting. Staley, 123 Wn.2d at 799. A defendant must establish unwitting possession by a preponderance of the evidence. State v. Buford, 93 Wn. App. 149, 152-53, 967 P.2d 548 (1998). This standard requires that the evidence establish the proposition at issue is more probably true than not true. State v. Ginn, 128 Wn. App. 872, 878, 117 P.3d 1155 (2005).
Mr. Gunning points to a portion of the court's oral ruling, which he claims is indicative of the trial court's confusion concerning the parties' respective burdens of proof. Even if confusion of this nature were evident in the oral opinion, it is not of particular consequence. The trial court's written order is its ultimate decision. State v. Michielli, 132 Wn.2d 229, 242, 937 P.2d 587 (1997).
The relevant conclusions of law state:
1. The State made a prima facie showing of all elements of Possession of Controlled Substance — methamphetamine.
. . . .
3. After the State brought forth a valid prima facie case showing possession, the burden then shifted to the defense to show by preponderance of the evidence that the possession was unknowing or unwitting.
4. The defense proved to the court that for some period of time the backpack was out of Mr. Gunning's immediate dominion and control. That raises some doubt.
5. Despite this, the court finds that the affirmative defense of unwitting possession fails[,] applying the preponderance of the evidence standard.
Clerk's Papers at 34-35.
On review of this bench trial, we determine whether the findings of fact support the trial judge's conclusions of law. State v. Munson, 120 Wn. App. 103, 106, 83 P.3d 1057 (2004); State v. Stevenson, 128 Wn. App. 179, 193, 114 P.3d 699 (2005). The trial court made the undisputed finding that the backpack was Mr. Gunning's. This is significant indicia of control.
Further, consistent with its written findings, the trial court mentioned in its oral opinion that Mr. Gunning was returning for his backpack, along with his helmet and gloves. See Ferree v. Doric Co., 62 Wn.2d 561, 567, 383 P.2d 900 (1963) ("if the court's oral decision is consistent with the findings and judgment, it may be used to interpret them"). This shows that Mr. Gunning intended to exercise control over the backpack and, by implication, the methamphetamine. The intent to appropriate for oneself the exclusive use of the item possessed is relevant in determining whether possession has shifted. State v. Cabigas, 3 Wn. App. 740, 743, 477 P.2d 648 (1970) (citing P.J. Fitzgerald, Salmond on Jurisprudence 270 (12th ed. 1966)).
The court also noted that because Mr. Gunning returned for the items, including the methamphetamine, they held some value to him. See State v. Perry, 10 Wn. App. 159, 164, 516 P.2d 1104 (1973) (holding that the jury could infer that heroin was left behind by a former tenant of the apartment in which it was found, but it could also believe that because of its value, a tenant would not leave it behind).
"[T]he question of possession involves the possession of sufficient control, either actual or potential, over the object." Cabigas, 3 Wn. App. at 743 (citing Fitzgerald, supra, at 270). Although he did not have present control, Mr. Gunning did not abandon his property. He trusted the apartment tenant to keep his backpack and its contents safe — as well as his gloves and helmet — from others as he evidently expected them to be there when he returned for them. See id.
As noted, although mere proximity to the contraband is not sufficient in itself to establish dominion and control over it, proximity coupled with other circumstances linking the defendant to the contraband is sufficient evidence for a trier of fact to find constructive possession. State v. Mathews, 4 Wn. App. 653, 484 P.2d 942 (1971). That is the case here.
The trial court's oral opinion stated: "[A]lthough there is some absence of dominion and control, it is not sufficient to defeat the prima facie case that the state has proven." RP at 58. It is clear that the trial court was not convinced that, despite the fact that the backpack was not in Mr. Gunning's physical possession for a time, someone other than Mr. Gunning probably put the substance in the backpack. This credibility determination is not subject to review. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992). The trial court's disbelief is well-grounded in evidence at trial. An officer testified that the three nonclothing items found in Mr. Gunning's backpack — the cinnamon canister, the red material, and the methamphetamine — were each similarly, yet individually, wrapped in a piece of clothing. The fact that these materials were commonly packed leads to a reasonable conclusion that they were placed in the backpack by the same person.
While there is a lack of direct evidence, there is sufficient circumstantial evidence in the record to support the trial court's conclusion of constructive possession.
Affirmed.
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, A.C.J. and SWEENEY, J., concur.