Opinion
No. 65312-1-I.
Filed: April 18, 2011.
Appeal from a judgment of the Superior Court for King County, No. 09-8-04132-8, Julia Garratt, J. Pro Tem., entered March 25, 2010.
Affirmed by unpublished opinion per Ellington, J., concurred in by Appelwick and Spearman, JJ.
K.G. appeals his conviction for being a minor in possession of alcohol. He argues the court improperly admitted evidence that he refused to submit to a voluntary portable breathalyzer test at the scene of the arrest. We affirm.
BACKGROUND
One night in November 2009, King County Sheriff's Office Deputy Tracey Dodd responded twice to noise complaints about a house party in Kenmore. While at the house, she saw about 20 people "holding alcohol." During her second dispatch to the house, she asked to see everybody's identification. She determined that five or six guests, including K.G., were under 21.
Report of Proceedings (RP) (Mar. 25, 2010) at 9.
K.G.'s speech was slurred, his eyes were bloodshot, and he had difficulty maintaining his balance, alternating between leaning on the wall and grabbing onto a friend who was standing next to him. Dodd smelled alcohol on his breath. Dodd advised the underage guests of their rights and asked K.G. to take a voluntary portable breathalyzer test (PBT). He refused, stating if he did not take the test, Dodd "wouldn't be able to prove anything" and would have to let him go. Dodd arrested K.G. for being a minor in possession of alcohol.
Id. at 23.
The court permitted Dodd to testify about K.G.'s refusal to take the PBT and the reason he gave. K.G. was convicted as charged.
K.G. argues the evidence was insufficient to convict him of being a minor in possession of alcohol, and that the testimony about his refusal to take the PBT impeded his Fourth Amendment right to be free from warrantless searches.
DISCUSSION
Evidence is sufficient to support a conviction if, after viewing the evidence in the light most favorable to the State, any rational trier of fact could find the essential elements proved beyond a reasonable doubt. In reviewing for sufficiency, we make no distinction between circumstantial and direct evidence because both are considered equally reliable.
State v. Hendrickson, 129 Wn.2d 61, 81, 917 P.2d 563 (1996).
State v. Bencivenga, 137 Wn.2d 703, 711, 974 P.2d 832 (1999).
To prove K.G. was a minor in possession, the State must prove beyond a reasonable doubt the defendant (1) was a person under the age of 21 at the time he was charged, (2) that he possessed, consumed, or otherwise acquired any liquor, (3) while in the state of Washington. Possession can be established if a person knows the substance is present, it is immediately accessible, and he exercises dominion and control over it. Evidence of assimilation into the body is circumstantial evidence of prior possession, and when combined with other corroborating evidence, alcohol consumption may support a possession conviction.
RCW 66.44.270(2)(a). K.G. does not dispute he was underage in November 2009, nor that the event took place in the state of Washington.
State v. Dalton, 72 Wn. App. 674, 676, 865 P.2d 575 (1994).
Id.
Deputy Dodd's training and experience put her in contact with hundreds of intoxicated individuals, and she had worked the "party patrol" with an emphasis on underage alcohol consumption. Here, although Deputy Dodd did not see K.G. holding any alcoholic beverage, she found K.G. showing signs of intoxication in a room with "a large number of Bud Light" beer cans sitting around and being consumed by guests. She testified that K.G. told her, "You can't do nothing about this. It's only alcohol, it's not a big deal."
RP (Mar. 25, 2010) at 15.
Id. at 43.
The evidence of K.G.'s statements, combined with his underage status, the open containers of alcohol immediately accessible to him and the signs of intoxication Dodd observed was sufficient for a rational trier of fact to find he committed the crime of minor in possession of alcohol.
K.G.'s reliance on State v. Francisco, 148 Wn. App. 168, 199 P.3d 478 (2009) is misplaced. There, an officer found the defendant intoxicated but passed out in a driveway with no alcohol in close proximity. Id. at 175-76.
K.G. contends the court erred by admitting testimony that he refused to take a breathalyzer test, thus undermining his Fourth Amendment right to be free from warrantless searches.
To protect the integrity of constitutional rights, the courts have developed two related propositions: (1) the State can take no action that will unnecessarily penalize the assertion of a constitutional right, and (2) the State may not draw adverse inferences from the exercise of a constitutional right. A breathalyzer test constitutes a search under the Fourth Amendment and Washington Constitution article I, section 7.
State v. Rupe, 101 Wn.2d 664, 705, 683 P.2d 571 (1984).
State v. Garcia-Salgado, 170 Wn.2d 176, 184, 240 P.3d 153 (2010).
K.G. argues the State was improperly allowed to draw an adverse inference — that he would have submitted to the breathalyzer if he were innocent — from K.G.'s assertion of his right to be free from warrantless searches. The State does not respond to this argument.
The State discusses the evidence of K.G.'s refusal in the context of his Fifth Amendment right against self-incrimination. See Appellant's Br. at 10-11.
But to the extent admission of the evidence was constitutional error, it was harmless. The State has the burden of proving the error was harmless beyond a reasonable doubt. K.G.'s other statements, signs of intoxication and presence at a house party where open containers of alcohol were abundant constitute overwhelming evidence leading to a finding of guilt beyond a reasonable doubt.
State v. Jones, 71 Wn. App. 798, 812, 863 P.2d 85 (1993).
Id. (a party shows error was harmless beyond a reasonable doubt if the remaining untainted evidence is "so overwhelming that it necessarily leads to a finding of guilt").
Affirmed.
WE CONCUR: