Opinion
No. 36886-2-II.
January 13, 2009.
Appeal from a judgment of the Superior Court for Pierce County, No. 06-1-05772-6, Ronald E. Culpepper, J., entered September 7, 2007.
Affirmed by unpublished opinion per Hunt, J., concurred in by Houghton and Quinn-Brintnall, JJ.
UNPUBLISHED OPINION
Ernie Henkel appeals his jury conviction for second-degree possession of stolen property. He argues that the evidence is not sufficient to support the "possession" and "knowledge" elements of the charge. Holding that sufficient evidence supports both of these elements, we affirm.
Facts I. Crime
On the morning of December 5, 2006, in the Parkland area of Pierce County, Anthony Ramsdall called the police to report that his minivan had been stolen sometime between 7:00 pm the night before and 7:00 am that morning.
Later that morning, also in the Parkland area of Pierce County, Randy Richardson called the police to report that two people were possibly stripping a car behind a vacant house next door to him. Earlier, at around 6:20 am, Richardson had looked at the vacant house, which had become a dump site for stolen cars, and had not seen anything suspicious. But when he looked again later, between 9:30 and 11:00 am, Richardson saw two cars, a sedan and a minivan, and two people, whom he later identified as Ernie Henkel and Beth McDowell. As Richardson waited for the police to arrive, he saw McDowell get into the sedan and drive slowly towards him. Shortly thereafter, Richardson saw the sedan parked two houses down from the vacant house.
When Pierce County deputy sheriffs arrived, they recognized that the minivan matched the description of Ramsdall's stolen minivan. The deputies noted that the passenger side front and sliding doors of the minivan were open, the gas tank door was ajar, and the gas tank cap was off. The deputies also found a gas can and some plastic tubing on the ground below the gas tank. Richardson directed the deputies to a parked sedan and gave them a description of the woman who had driven by in the sedan minutes earlier.
Then, noticing that Henkel had disappeared, Richardson called his neighbor, Troy Phillips, and asked him to watch for anyone coming through Phillips' yard. Phillips saw Henkel, who appeared to be carrying a "big, black, long object in his hand," and asked him what he was doing. Report of Proceedings (RP) (Aug. 7, 2007) at 83. Henkel replied that he was "working for the neighbor." When Phillips responded, "No, you're from what's going on over there," Henkel began running. RP (Aug. 7, 2007) at 83. Phillips chased Henkel and trapped him in the backyard of a nearby house until deputies arrived to arrest Henkel.
When the deputies searched Henkel incident to the arrest, in Henkel's pocket they found a key ring with numerous keys — one of which unlocked and started Ramsdall's minivan — a screwdriver, a black knit cap, gloves, some flashlights, and a number of other items, none reportedly stolen. Phillips directed the deputies to the area where he had first spoken with Henkel; there, the deputies found notebooks belonging to Ramsdall's daughter and a machete belonging to Ramsdall, both of which had been inside Ramsdall's minivan on the night it was stolen.
II. Procedure
The State charged both Henkel and McDowell with one count each of second-degree possession of stolen property.
The court held a joint jury trial for Henkel and McDowell. Witnesses for the State included Ramsdall, Richardson, the two sheriff deputies who had responded to Richardson's call to the police, and Phillips. At the close of the State's case, both Henkel and McDowell moved to dismiss the charges for failure to present a prima facie case. The court granted the motion with respect to McDowell, noting that the State's theory was that McDowell was an accomplice to the crime. The court denied the motion with respect to Henkel.
McDowell was the sole witness for Henkel's defense. According to McDowell, (1) she, Henkel, and Henkel's girlfriend had stayed at Henkel's girlfriend's house on the night before the incident; (2) Henkel had arrived at the house at 6:00 pm on December 4, 2006, and did not leave until the next morning at approximately 9:30 am; (3) accompanied by McDowell, Henkel drove the sedan to the vacant house because he was interested in buying it; (4) Henkel drove up alongside the driver's side of the minivan and got out of the sedan to knock on the back door of the vacant house; (5) when Henkel drove up to the minivan, he said, "I bet that car is stolen," RP (Aug. 8, 2007) at 40, and mentioned trying to siphon gas from the minivan, but neither McDowell nor Henkel touched or drove the minivan; (6) McDowell got out of the passenger side of the sedan to move into the driver's seat, and drove the sedan away from the house to buy a soda; (7) when she later realized that Henkel had the money, she drove around the block and parked where she best recalled the vacant house being located.
The court presented twelve instructions to the jury, including an instruction on both actual and constructive knowledge and an instruction on the statutory definition of "possessing stolen property." The jury found Henkel guilty of second-degree possession of stolen property.
Henkel appeals.
Analysis I. Sufficiency of the Evidence
Henkel argues that the evidence was insufficient to prove beyond a reasonable doubt that he knowingly possessed the stolen minivan. We disagree.
A. Standard of Review
We review a claim of insufficient evidence to determine whether a rational trier of fact could justify finding guilt beyond a reasonable doubt. State v. Brockob, 159 Wn.2d 311, 336, 150 P.3d 59 (2006) (citing State v. Hughes, 154 Wn.2d 118, 152, 110 P.3d 192 (2005), overruled on other grounds, Washington v. Recuenco, 548 U.S. 212, 126 S. Ct. 2546, 165 L. Ed. 2d. 466 (2006)). When a defendant challenges the sufficiency of the evidence, we draw all reasonable inferences from the evidence in favor of the State and interpret them most strongly against the defendant. State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977). A sufficiency challenge admits the truth of the State's evidence and all reasonable inferences therefrom. State v. Theroff, 25 Wn. App. 590, 593, 608 P.2d 1254 (1980).
Determinations of credibility are for the trier of fact and are not subject to our review on appeal. State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 794 P.2d 850 (2004) (citing State v. Camarillo, 115 Wn.2d 60, 71, (1990)), review granted, 163 Wn.2d 1033 (2008).
B. Possession of Stolen Property
Possession of stolen property requires proof of two elements: (1) actual or constructive possession of the stolen property, and (2) actual or constructive knowledge that the property was stolen. State v. Jennings, 35 Wn. App. 216, 219, 666 P.2d 381 (1983) (citing RCW (1)). Here, the evidence was sufficient to prove to any rational trier of fact that Henkel had both constructive possession of the stolen minivan and constructive knowledge that the minivan was stolen.
1. Possession
Actual possession occurs when the property is in the personal custody of the person charged with possession. State v. Callahan, 77 Wn.2d 27, 29, (1969). Constructive possession occurs when the property is not in actual physical possession, but nevertheless, the person charged with possession has dominion and control over the property. Callahan, (citing State v. Walcott, 72 Wn.2d 959, 435 P.2d 994 (1968). The State has not established that Henkel had actual possession of the minivan because no witnesses testified to having seen Henkel in physical possession of the minivan. Thus, in order to affirm the conviction, sufficient evidence must support constructive possession.
In reviewing whether Henkel had constructive possession of the minivan, we examine the totality of the circumstances for dominion and control. See Partin, 88 Wn.2d at 906. Part of dominion and control is the defendant's ability to reduce the property immediately to actual possession. State v. Jones, 146 Wn.2d 328, 333, 45 P.3d 1062 (2002). Mere proximity to the property is not enough to establish constructive possession; but, proximity, coupled with other circumstances from which the trier of fact could infer dominion and control, is sufficient. Jones, 146 Wn.2d at 333; State v. Couet, 71 Wn.2d 773, 775, 430 P.2d 974 (1967). Dominion and control may be inferred from circumstances such as possession of keys. See, e.g., State v. Davis, 16 Wn. App. 657, 659, 558 P.2d 263 (1977); State v. Potts, 1 Wn. App. 614. 617, 464 P.2d 742 (1969).
Henkel alleges that, at trial, the State argued only that Henkel was in actual possession of the stolen minivan, and not in constructive possession. We find nothing in the record to support Henkel's contention. Moreover, the jury instructions provided a statutory definition for possession of stolen property, and both actual and constructive possession satisfy that statutory definition. Callahan, 77 Wn.2d at 29. Henkel assigns no error to these instructions.
Early on the morning of the incident, Richardson had looked at the vacant house, which had become a dump site for stolen cars, and he had not seen the minivan. Hours later, when Richardson looked again, he saw not only the minivan, but also Henkel standing next to the sedan, which was parked near the minivan. When Phillips confronted Henkel, Henkel began running. At the site of Phillips' earlier confrontation with Henkel, sheriff deputies found items belonging to the stolen minivan's owner — items which had previously been inside the minivan. In Henkel's possession, deputies also found keys that unlocked and started the minivan, flashlights, a black cap, and gloves.
McDowell testified that Henkel had mentioned trying to siphon gas from the minivan. Consistent with this testimony, when the police arrived, they found the gas tank door on the minivan ajar, the gas tank cap off, and a gas can and some plastic tubing on the ground below the gas tank. Examining the totality of the circumstances, the jury reasonably could have inferred that Henkel had dominion and control over the stolen minivan, either by having driven the minivan to the vacant house or by having the minivan's ignition keys in his possession, thereby exercising dominion and control over the vehicle by virtue of being able to drive it away at any time. See e.g., Davis, 16 Wn. App. at 659.
Although McDowell provided an innocent explanation for why she and Henkel had been at the vacant house, as well as an alibi for Henkel's whereabouts during the time period when the minivan initially disappeared, we defer to the jury on matters of witness credibility.
We hold, therefore, that the evidence is sufficient to prove beyond a reasonable doubt that Henkle possessed the minivan.
2. Knowledge
Henkle also argues that the evidence was insufficient to prove that he knew the minivan was stolen. But the State need not establish that Henkel had actual knowledge that the minivan and its contents were stolen; it is enough that he had knowledge of facts sufficient to put him on notice that the property was stolen. See State v. Rockett, 6 Wn. App. 399, 402, 493 P.2d 321 (1972) (citing State v. Rye, 2 Wn. App. 920, 471 P.2d 96 (1970)). Possession of property recently stolen, along with slight corroboration, is sufficient to show knowledge. State v. Womble, 93 Wn. App. 599, 604, 969 P.2d 1097 (citing Couet, 71 Wn.2d at 776), review denied, 138 Wn.2d 1009 (1999). Flight also evinces guilty knowledge. Womble, 93 Wn.App. at 604, review denied, 84 Wn.2d 1006 (1974)).
We have already held that sufficient evidence supports the jury's finding that Henkel possessed the stolen minivan. As for evidence of Henkel's knowledge that the van was stolen, McDowell testified that Henkel had driven onto the property of the vacant house and parked alongside the minivan, stating, "I bet that car is stolen." RP (Aug. 8, 2007) at 40. Additionally, when Phillips had confronted Henkel about "what's going on over there," Henkel had fled. RP (Aug. 6, 2007) at 83. This corroborating evidence, along with Henkel's possession of the stolen minivan, is sufficient to prove knowledge.
Therefore, we affirm Henkel's conviction of possession of stolen 93 Wn. App. at 604 524 P.2d 466 (citing State v. Medley, 11 Wn. App. 491, 495, property.
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, PJ., and QUINN-BRINTNALL, J. concur.