Opinion
No. 35767-4-II.
July 22, 2008.
Appeal from a judgment of the Superior Court for Clark County, No. 05-1-02687-1, Roger A. Bennett, J., entered January 5, 2007.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Houghton, J., concurred in by Bridgewater and Quinn-Brintnall, JJ .
UNPUBLISHED OPINION
Lowell Wharton appeals his convictions of unlawful possession of a controlled substance with a firearm enhancement and bail jumping, arguing, inter alia, that the evidence was insufficient to support the possession conviction and that the trial court erred in denying his motion to sever the charges. The State cross-appeals the trial court's failure to impose an 18-month firearm enhancement on his sentence. We reverse and dismiss his conviction of unlawful possession of a controlled substance with a firearm enhancement, affirm his bail jumping conviction, and remand for resentencing.
FACTS
On December 2, 2005, at approximately 2:40 a.m., Vancouver Police Officer Spencer Harris and other officers conducted a "knock and see" at 6208 NE 17th Avenue in Vancouver, to locate Landon Kush and Joseph Hanson, who were wanted on various charges. The officers did not have a warrant.
The name Kush also appears in the record as Cush.
Harris reported that, upon arriving at the residence, he "knocked on the door normally" and the door opened by itself. Clerk's Papers (CP) at 23. He later determined that the door jam was broken. Inside the residence, Harris observed Wharton sitting on a couch alone in the room. Next to Wharton on the couch within a few inches of his leg were a methamphetamine pipe that appeared used, a baggie containing a white crystal substance, and a cellular phone. Based on his training and experience, Harris believed that the baggie and pipe were methamphetamine and drug paraphernalia.
The officers did not know Wharton or expect to encounter him at the residence.
Residue inside the baggie tested positive for methamphetamine. The State did not submit the pipe for testing, and the trial court later excluded it as evidence of unlawful use but admitted it as circumstantial evidence of possession.
Harris tried to get Wharton's attention, but Wharton failed to respond. When the officers entered the residence, Wharton looked at them and put his head down and started mumbling but would not respond to questions. The officers then found Destiny Henning and Joshua Larson in the back bedroom. Harris handcuffed Wharton and moved him from the couch to a chair. He checked both the couch and the chair for weapons, but he did not search Wharton's waistband. After placing Wharton in the chair, Harris observed him "squirming around as if trying to get something or remove something" where his hands were cuffed. I Report of Proceedings (RP) at 16. Harris discovered a handgun behind Wharton's back, slid partially down the chair cushion.
The handgun had an empty magazine and no rounds in the chamber, and Harris found no other ammunition on Wharton or inside the residence. The handgun later tested as operational. Wharton did not dispute that he was in actual possession of it.
None of the apartment's occupants were residents and none claimed ownership of the baggie or pipe. Wharton claimed ownership of the cellular phone.
On December 8, the State charged Wharton with one count of unlawful possession of a controlled substance, methamphetamine, and one count of unlawful use of drug paraphernalia. On March 2, 2006, he failed to appear in court for a readiness hearing on the charges. On March 30, the State filed an amended information adding a count of bail jumping.
Wharton moved to suppress evidence, arguing in part that the officers had no probable cause to enter the apartment or arrest him because his mere proximity to contraband was insufficient to establish dominion and control. On June 23, the State filed a second amended information adding a firearm enhancement to the possession charge. Wharton moved to dismiss the firearm enhancement, sever the bail jumping charge, and dismiss the remaining charges for lack of probable cause and/or insufficient evidence demonstrating that he was in actual or constructive possession of the pipe or baggie.
The trial court denied all of Wharton's motions. In denying his motion to dismiss for lack of actual or constructive possession, it concluded that (1) the officers were entitled to knock on the residence's front door, it was not a "knock-and-talk" situation as in State v. Ferrier, 136 Wn.2d 103, 960 P.2d 927 (1998), and it was undisputed that the door opened and gave Harris a view of Wharton and suspected methamphetamine and paraphernalia; and (2) the officers had exigent circumstances to enter the residence and probable cause to arrest Wharton because he was alone in the room in close proximity to the contraband and the officers' view of the drug paraphernalia showed recent use.
The trial court entered its written findings of fact and conclusions of law on January 19, 2007.
A jury heard the matter. At the close of the State's case, Wharton moved to dismiss the firearm enhancement for insufficient evidence, arguing that the possession charge was "purely a constructive possession case." III RP at 46. He also argued that mere proximity was insufficient to establish actual possession and that the State failed to establish the dominion and control necessary to show constructive possession.
The trial court determined that the State's case was one of actual possession as to both the possession charge and the firearm enhancement. It determined that the jury could infer actual possession from Wharton's close proximity to the items and the fact that he was alone in the room, stating, "When you've got something sitting on a couch six inches away, no one else in the room, that's a case of actual possession, not constructive possession." III RP at 65. It found that the State presented insufficient evidence to submit its case to the jury under a constructive possession theory and must base its case on "actual possession supported by the circumstantial evidence of proximity" and the fact that Wharton was alone in the room when the officers discovered the contraband. III RP at 124.
The State initially objected to the trial court's jury instructions for failure to include a constructive possession instruction but ultimately deferred to the court's direction that it would submit the charge to the jury only under an actual possession theory. After inquiry from the trial court, the State elected to proceed only on an actual possession theory. The trial court instructed the jury that "[p]ossession means having a substance in one's custody." CP at 55.
In closing argument, defense counsel told the jury that based on its instructions it could only consider the State's case under an actual possession theory. The jury convicted Wharton of unlawful possession of a controlled substance with a firearm enhancement and of bail jumping. It acquitted him of unlawful use of drug paraphernalia. The trial court denied his motion for a new trial or for arrest of judgment. He appeals.
ANALYSIS Possession Charge
In arguing that the trial court erred by denying his motions to suppress and to dismiss the firearm enhancement, Wharton contends that there was insufficient evidence to convict him of actual possession of methamphetamine. He also asserts that the State failed to demonstrate the dominion and control necessary to establish his constructive possession. We first address whether sufficient evidence supported a conviction of actual methamphetamine possession because it is dispositive here.
We find evidence 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)). Here, the officers found the methamphetamine baggie and pipe next to Wharton on the couch and not in his actual physical possession. See State v. Summers, 107 Wn. App. 373, 384, 28 P.3d 780 (2001). The State presented and the trial court submitted its case to the jury only under an actual possession theory. But there was no evidence that the items were ever in his physical custody. The State thus failed to meet its burden to prove guilt of actual possession beyond a reasonable doubt. Staley, 123 Wn.2d at 798; see also State v. Spruell, 57 Wn. App. 383, 384-87, 788 P.2d 21 (1990) (finding insufficient evidence of actual possession where the defendant was present in the kitchen where police found drugs on the table and were under the impression the defendant had just moved away from the table, and the defendant's fingerprint was on a plate found near additional drug residue). Because the evidence was insufficient to support Wharton's conviction of actual possession, we reverse and dismiss the conviction and its related firearm enhancement.
The trial court declined to instruct the jury on constructive possession on the basis that the State failed to demonstrate Wharton's dominion and control over the premises, noting that it would dismiss the State's case for insufficient evidence under a constructive possession theory. The trial court also determined that a nexus instruction for the firearm enhancement was not required because the evidence was sufficient to establish Wharton's actual possession of both the drugs and the firearm. Although the matter was not before the jury for deliberation under a constructive possession theory, we note that the State likewise failed to demonstrate sufficient evidence of constructive possession. See State v. Jones, 146 Wn.2d 328, 333, 45 P.3d 1062 (2002) (mere proximity to contraband is insufficient to establish constructive possession); Callahan, 77 Wn.2d at 31 (finding insufficient evidence to submit the question of the defendant's constructive possession to the jury where the State failed to demonstrate that he maintained, paid rent, or had dominion or control over the residence; and noting that the defendant's personal possessions inside the residence not of the clothing or personal toilet article type were insufficient to show dominion and control).
We note that Wharton never admitted to having been in possession of the drugs at any time before the officers arrived. Contra Callahan, 77 Wn.2d at 31 (finding insufficient evidence to submit the question of constructive possession to the jury where, in part, the defendant admitted he handled the drugs earlier in the day).
Because we reverse Wharton's conviction for insufficient evidence of actual possession, we do not reach his arguments regarding the trial court's denial of his motion to suppress evidence.
Severance
Wharton also assigns error to the trial court's denial of his motion to sever his bail jumping charge from other charges. He does not otherwise appeal his bail jumping conviction.
We address this argument because Wharton's bail jumping conviction could be affirmed despite our reversal of his possession conviction.
We review a trial court's ruling on a motion to sever charges for an abuse of discretion, which occurs when the trial court bases its decision on unreasonable or untenable grounds. State v. Bythrow, 114 Wn.2d 713, 717, 790 P.2d 154 (1990); State v. Perrett, 86 Wn. App. 312, 319, 936 P.2d 426 (1997). Under CrR 4.4(b), the trial court shall grant a defendant's motion for severance where it determines that severance will promote a fair determination of the defendant's guilt on each offense. "Defendants seeking severance have the burden of demonstrating that a trial involving both counts would be so manifestly prejudicial as to outweigh the concern for judicial economy." Bythrow, 114 Wn.2d at 718.
Factors offsetting prejudice included (1) the jury's ability to compartmentalize evidence, (2) the strength of the State's evidence on each count, (3) the cross admissibility of evidence between different counts, (4) whether the trial court successfully instructed the jury to decide each count separately, and (5) whether concerns of judicial economy weighed in favor of joinder. State v. Kalakosky, 121 Wn.2d 525, 537, 852 P.2d 1064 (1993).
The trial court properly tries offenses together where they are of the same or similar character or are based on the same conduct or series of acts connected together or constituting parts of a single scheme or plan. CrR 4.3(a). In Washington, we consider a bail jumping charge sufficiently connected to the underlying charge if the two offenses relate in time and the bail jumping charge stems directly from the underlying charge. State v. Bryant, 89 Wn. App. 857, 866-67, 950 P.2d 1004 (1998). The trial court properly tries bail jumping and other charges together as a matter of law if these requirements are met and the defendant is not prejudiced. Bryant, 89 Wn. App. at 867.
The rules for joinder and severance are based on the same underlying principle that a defendant receive a fair trial without undue prejudice. State v. Bryant, 89 Wn. App. 857, 865, 950 P.2d 1004 (1998).
Here, Wharton's bail jumping charge related in time to and stemmed directly from the underlying charges. Bryant, 89 Wn. App. at 867. The State's case was strong, as Wharton and others testified regarding to his failure to appear and the trial court admitted Wharton's signed written acknowledgment that he was required to appear. State v. Kalakosky, 121 Wn.2d 525, 537, 852 P.2d 1064 (1993). The trial court also properly instructed the jury to consider each count separately.
Wharton fails to demonstrate that prejudice outweighed concerns of judicial economy, particularly because he had the opportunity to present his defense to the jury that his failure to appear was an omission. The trial court did not abuse its discretion in denying his motion to sever.
Because we reverse Wharton's possession conviction and firearm enhancement and remand for resentencing, we do not reach his remaining assignments of error or the State's cross appeal.
The possession conviction with a firearm enhancement is reversed and dismissed with prejudice. We remand for resentencing on the bail jumping charge alone.
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.
BRIDGEWATER, J. and QUINN-BRINTNALL, J., concur.