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State v. Ilerna

The Court of Appeals of Washington, Division One
Mar 7, 2011
160 Wn. App. 1025 (Wash. Ct. App. 2011)

Opinion

No. 64863-2-I.

Filed: March 7, 2011.

Appeal from a judgment of the Superior Court for King County, No. 09-1-04895-5, Michael Hayden, J., entered February 1, 2010.


Reversed and remanded with instructions by unpublished opinion per Spearman, J., concurred in by Dwyer, C.J., and Schindler, J.


To convict a person of actual possession of a controlled substance with the intent to deliver, the State is required to prove beyond a reasonable doubt that the controlled substance was in the personal custody of the person charged with possession with intent to deliver. Here, the State failed to make the requisite showing, and as such, we reverse Raul Ilerna's conviction for possession of cocaine with intent to deliver.

FACTS

A police officer on bicycle patrol saw Raul Ilerna engaged in hand to hand transactions with a group of people standing around him. When the officer and his partner attempted to contact Ilerna, he walked away and then ran into a nearby bar. One of the officers saw Ilerna place his hands into his pockets. The officers followed Ilerna into the bar, and placed him under arrest. One officer searched Ilerna incident to arrest and found no drugs, but found over $800 in cash. The other officer went back into the bar and recovered a pill bottle with a large amount of crack cocaine inside. The police tested the bottle for fingerprints, but found none.

The trial transcript reflects that the defendant's last name is actually "Llerna." The judgment and sentence, however, as well as the defendant's own appellate briefing, spell the defendant's last name "Ilerna." As such, we use "Ilerna" throughout this opinion.

A video surveillance tape of the bar shows the officer found the bottle on the floor about 10 feet from where the officers arrested Ilerna. The video also shows multiple people walking in and around that area after Ilerna was arrested, but before the officer returned and recovered the bottle. Additionally, the officers testified they never saw Ilerna possess and throw away the pill bottle, and the State conceded during closing argument that the surveillance video does not show Ilerna throwing the bottle away.

The State charged Ilerna with, and the jury convicted him of possession of cocaine with intent to deliver. Ilerna appeals.

DISCUSSION

Ilerna argues that the evidence is insufficient to support his conviction for possession of cocaine with intent to deliver. Evidence is sufficient where, viewed in the light most favorable to the State, it supports a rational fact finder's finding of guilt beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). A claim of insufficiency admits the truth of the State's evidence and all reasonable inferences drawn from it. Salinas, 119 Wn.2d at 201. On review, circumstantial and direct evidence carry equal weight. State v. Goodman, 150 Wn.2d 774, 781, 83 P.3d 410 (2004). Where the evidence is insufficient to support a jury verdict, we must reverse and dismiss the conviction. State v. Stanton, 68 Wn. App. 855, 867, 845 P.2d 1365 (1993).

"`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.'" State v. Staley, 123 Wn.2d 794, 798, 872 P.2d 502 (1994) (quoting State v. Callahan, 77 Wn.2d 27, 29, 459 P.2d 400 (1969)). Although Ilerna and the State spend much of their briefing discussing constructive possession, constructive possession was not at issue in this case. Indeed, the State argued during closing only that Ilerna actually possessed the cocaine, and the jury was instructed only on actual possession. The question is thus whether the evidence was sufficient to prove beyond a reasonable doubt that Ilerna actually possessed the pill bottle containing the cocaine. We conclude the evidence was not sufficient for the reasons described herein.

Two cases, State v. Callahan and State v. Spruell, 57 Wn. App. 383, 788 P.2d 21 (1990) are instructive on the issue of actual possession. In Callahan, the police entered a houseboat, and found the defendant and another person seated at a desk on which there were pills and hypodermic syringes. A cigar box containing drugs was on the floor between the two men. The defendant admitted that two guns, two books on narcotics, and a set of broken scales of a type used for measuring drugs found in the houseboat belonged to him. The defendant further admitted that he had actually handled the drugs earlier that day. Callahan, 77 Wn.2d at 28. The Supreme Court concluded all of this circumstantial evidence was insufficient to demonstrate actual possession:

Since the drugs were not found on the defendant, the only basis on which the jury could find that the defendant had actual possession would be the fact that he had handled the drugs earlier and such actions are not sufficient for a charge of possession since possession entails actual control, not a passing control which is only a momentary handling.

Id. at 29 (citing United States v. Landry, 257 F.2d 425, 431 (7th Cir. 1958)).

In Spruell, the police found a small scale, baking soda, alcohol, several vials, white powder residue, and a razor blade on the kitchen table. A person was seated at a kitchen table and an officer testified he believed the defendant, Luther Hill, had just moved away from the table when the police entered the home. A few seconds after the police entered, an officer heard what sounded like a plate hitting the back door. Near the back door was a broken plate on which the police found white powder residue and the defendant's fingerprint. The police found additional white powder on the doorjamb of the back door, on the kitchen floor, and caked between a chair and cupboards. The white powder in the kitchen was cocaine, but a test of the powder on the plate was not conclusive. As was the case in Callahan, this court concluded the above-described evidence was insufficient to prove actual possession. Spruell, 57 Wn. App. at 386.

The evidence of actual possession here is less than that presented in Callahan and Spruell. There is no evidence showing Ilerna ever physically possessed the pill bottle containing the cocaine. Instead, the video surveillance tape shows the officer found the pill bottle containing the cocaine on the floor of the bar about 10 feet from where Ilerna was arrested. The video does not show Ilerna possessing and then discarding the bottle, and the officer admitted he did not see Ilerna slough the bottle. Nor did the police find any fingerprints on the bottle. Moreover, the video shows multiple people walking in and around the area where the bottle was recovered before the police recovered it.

The State argues the jury was entitled to draw inferences regarding possession from the other evidence, namely, that the officer saw what he believed were hand to hand transactions between Ilerna and a group of people standing near him; that Ilerna fled as the police approached him; that Ilerna put his hands in his pockets, and that Ilerna had over $800 in cash in his pockets. While this may be true in the context of a constructive possession case where such inferences can sometimes bear upon whether the defendant exerted dominion and control of a controlled substance found near him, see, e.g., State v. Porter, 58 Wn. App. 57, 61, 791 P.2d 905 (1990), this is not a constructive possession case. As in Callahan and Spruell, the State failed to present sufficient evidence that the cocaine was ever "in the personal custody" of the defendant. Callahan, 77 Wn.2d at 29.

Accordingly, we reverse Ilerna's conviction for possession of cocaine with intent to deliver and remand with instructions to dismiss.

In light of our decision, we need not address Ilerna's argument that the prosecutor committed misconduct during closing, nor the arguments raised in Ilerna's statement of additional grounds.

WE CONCUR:


Summaries of

State v. Ilerna

The Court of Appeals of Washington, Division One
Mar 7, 2011
160 Wn. App. 1025 (Wash. Ct. App. 2011)
Case details for

State v. Ilerna

Case Details

Full title:STATE OF WASHINGTON, Respondent, v. RAUL ILERNA, Appellant

Court:The Court of Appeals of Washington, Division One

Date published: Mar 7, 2011

Citations

160 Wn. App. 1025 (Wash. Ct. App. 2011)
160 Wash. App. 1025