Opinion
42133-0-II
02-20-2013
STATE OF WASHINGTON, Respondent, v. BEAU E. NUGENT, Appellant
UNPUBLISHED OPINION
Johanson, A.C.J.
Beau E. Nugent appeals his jury trial convictions for possession of a stolen motor vehicle and possession of motor vehicle theft tools. He argues that the evidence was insufficient to prove the possession of a stolen motor vehicle and possession of motor vehicle theft tools charges. We affirm.
The jury also found Nugent guilty of making a false statement to a public servant; he does not appeal that conviction.
FACTS
On December 31, 2010, Gregory Budd reported that someone had stolen his Honda Accord. In the early morning hours of January 10, 2011, Shelton Police Officer Matthew Dickinson was on routine patrol when he discovered the stolen Honda parked in the driveway of a residence that was known "as a place where people crash or hang out." 1 Report of Proceedings (RP) at 66.
After Sergeant Virgil Pentz arrived to assist him, Officer Dickinson approached the trailer and knocked on the front door for about five minutes. Tracy Doyle eventually answered the door. She denied knowing anything about the Honda in the driveway. Officer Dickinson told Doyle that he needed to know who owned the car, and Doyle went back inside and shut the door.
A man identifying himself as "James Dixon" then came to the door. 1 RP at 51. Officer Dickerson could not see the man well because he was wearing a hooded sweatshirt and the area was poorly lit. The man did not have any identification, and he stated that he did not know his social security number. When Officer Dickinson asked the man what he was doing at the residence, the man initially said that he had been partying, that a friend had dropped him off, and that he had fallen asleep on the couch; but he later claimed to have walked to the residence. He then went back inside the residence.
Sergeant Pentz then spoke to Doyle and told her about the stolen car in the driveway; Doyle had the seven people inside the residence go outside, including the man who had identified himself as "Dixon" and Joseph Tindall. 1 RP at 51. The officers asked the group if any of them knew "Mr. Dixon," and they all denied knowing who he was or how he got to the residence. 1 RP at 53. Officer Dickerson then detained "Mr. Dixon." 1 RP at 53.
When Officer Dickerson patted "Mr. Dixon" down for weapons, he found a "flathead" screwdriver, a "multi-tool," and a small flashlight on his person. 1 RP at 53. Officer Dickerson eventually recognized the man as Nugent, with whom the officer was familiar from prior police contacts and because they attended high school together.
After securing Nugent, the officers inspected the stolen car and discovered that the ignition had been "punched." 1 RP at 56, 81. The car also contained approximately 60 to 70 items that did not belong to the car's owner. Among these items were a black computer case and a backpack belonging to Nugent. The officers found the computer case in the car's trunk, behind a large speaker box that had to be removed to access the case. The computer case contained two photographs of Nugent, some Social Security paperwork with Nugent's name on it, and a prescription in Nugent's name. In the passenger compartment, the officers also found several shaved keys and a slim jim, tools commonly used to steal cars. They also found a document with "Mr. Tindall's name on it" and "Eleazar Ramirez Abundas['s]" driver's license. 1 RP at 75-76.
Abundas was not among the individuals who had been in the trailer that morning.
The State charged Nugent with possession of a stolen motor vehicle, possession of motor vehicle theft tools, and giving a false statement to a public servant. Officer Dickinson and Sergeant Pentz testified for the State as described above. In addition, the officers testified that people often steal cars by "punch[ing] the ignition" and using a screwdriver to turn the ignition. RP at 56. Nugent presented evidence suggesting that a friend of his had given Nugent and Tindall a ride to the residence on the night of the arrest, that Nugent had two bags with him that night, and that Nugent had fallen asleep on the couch with the two bags.
The jury found Nugent guilty as charged. Nugent appeals.
ANALYSIS
Nugent argues that the evidence was insufficient to prove the possession of a stolen motor vehicle and possession of motor vehicle theft tools charges. We disagree.
I. Standard of Review
Evidence is sufficient to support a conviction if, viewed in the light most favorable to the trier of fact's decision, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Kintz, 169 Wn.2d 537, 551, 238 P.3d 470 (2010). A claim of insufficiency admits the truth of the State's evidence and all reasonable inferences that a trier of fact can draw from the evidence. Kintz, 169 Wn.2d at 551 (quoting State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992)). Circumstantial evidence and direct evidence are equally reliable. State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004), abrogated in part on other grounds by Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L. Ed. 2d 177 (2004). We defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. Thomas, 150 Wn.2d at 874-75.
II. Possession of a Stolen Motor Vehicle
To convict Nugent of possession of a stolen motor vehicle, the State had to prove beyond a reasonable doubt that he knowingly possessed a stolen motor vehicle and that he knew the vehicle was stolen. RCW 9A.56.068(1), RCW 9A.56.140(1). Nugent argues that the evidence was insufficient to prove that he possessed the stolen car or knew the car was stolen.
RCW 9A.56.068(1) states that "[a] person is guilty of possession of a stolen vehicle if he or she possess [possesses] a stolen motor vehicle." RCW 9A.56.140(1) defines possession of stolen property in part as "knowingly" receiving, retaining, possessing, concealing, or disposing of stolen property "knowing that it has been stolen." RCW 9A.56.068(1) implicitly incorporates RCW 9A.56.140(1)'s definition of "[p]ossessing stolen property" because the definition applies to other stolen property crimes in the same chapter and provides the mens rea element of the offense. See 11A Washington Practice: Washington Pattern Jury Instructions: Criminal 77.21, cmt. at 178 (3d ed. 2008). The jury instructions at Nugent's trial reflected this interpretation.
A. Possession of Stolen Vehicle
Possession can be actual or constructive. "'Actual possession means that the goods are in the personal custody of the person charged with possession.'" State v. Plank, 46 Wn.App. 728, 731, 731 P.2d 1170 (1987) (quoting State v. Callahan, 77 Wn.2d 27, 29, 459 P.2d 400 (1969)). Nugent was not in actual possession of the stolen vehicle when the officers arrested him; therefore, we must determine whether there was sufficient evidence to establish that Nugent had constructive possession of the vehicle.
"Constructive possession is established by examining the totality of the situation and determining if there is substantial evidence" tending to establish circumstances "from which a jury can reasonably infer the defendant had dominion and control over the item." State v. Jeffrey, 77 Wn.App. 222, 227, 889 P.2d 956 (1995). Dominion and control need not be exclusive to establish constructive possession but close proximity alone is insufficient; other facts must enable the trier of fact to infer dominion and control. See e.g., State v. George, 146 Wn.App. 906, 920, 193 P.3d 693 (2008); State v. Turner, 103 Wn.App. 515, 521-22, 13 P.3d 234 (2000); State v. Mathews, 4 Wn.App. 653, 656-58, 484 P.2d 942 (1971).
Nugent relies on State v. McCaughey, 14 Wn.App. 326, 541 P.2d 998 (1975), State v. Cote, 123 Wn.App. 546, 96 P.3d 410 (2004), and State v. Harris, 14 Wn.App. 414, 542 P.2d 122 (1975), review denied, 86 Wn.2d 1010 (1976), to support his argument that the evidence was not sufficient to show his constructive possession of the vehicle. These cases are not persuasive.
Here, not only was Nugent in the vicinity of the stolen car, the officers found Nugent's belongings behind a large speaker secured in the car's trunk; the car's ignition was "punched," rendering the car capable of being started with an object like a screwdriver; and Nugent was carrying a screwdriver when he was arrested. 1 RP at 56. Unlike in McCaughey, Cote, or Harris, the issue here was whether there was sufficient evidence of possession of the car itself, not its contents. Additionally, unlike in McCaughey and Cote, there was more than mere proximity to the stolen property, evidence of passing possession, and inconsistent statements-taken in the light most favorable to the State, there was evidence that Nugent had been in the car and that he had the means of starting it. Thus, the totality of the evidence, viewed in the light most favorable to the State, indicates that a reasonable juror could have concluded that
In McCaughey, the State attempted to establish that McCaughey possessed stolen merchandise police found in a vehicle near which McCaughey slept. 14 Wn.App. at 327. The State argued that McCaughey's presence and the statements of a second person associated with the vehicle established constructive possession. McCaughey, 14 Wn.App. at 329. McCaughey argued that this evidence was insufficient to prove that he possessed the stolen goods. McCaughey, 14 Wn.App. at 327. We agreed, holding that evidence of McCaughey's proximity to the vehicle and inconsistent statements about the stolen merchandise were insufficient to prove that McCaughey possessed the stolen merchandise in the vehicle. McCaughey, 14 Wn.App. at 329.
In Cote, Division Three of this court held that the fact that Cote had been a passenger in a truck in which officers found the components of a methamphetamine lab and the fact his fingerprints were on some mason jars containing manufacturing chemicals was insufficient to establish his constructive possession of the manufacturing materials because these facts showed only that he may have been in the proximity of the contraband and that he may have touched it. 123 Wn.App. at 548-50 (citing Callahan, 77 Wn.2d 27).
In Harris, a case addressing a married couple's convictions for possession of marijuana and possession of marijuana with intent to deliver, we held that the evidence was insufficient to establish possession by the wife when the evidence was only that she was a passenger in the truck containing the contraband and that a deputy may have obtained the keys to the vehicle's trunk from the wife. 14 Wn.App. at 417-18.
Nugent had had possession of the stolen car and accordingly this sufficiency argument fails.
B. Knowledge
In proving unlawful dominion and control over stolen property, the State must prove beyond a reasonable doubt that the defendant knew that the property was stolen. Plank, 46 Wn.App. at 731; see also 11A Washington Practice: Washington Pattern Jury Instructions: Criminal 77.21, cmt. at 178 (3d ed. 2008). The fact finder may infer knowledge if "a reasonable person would have knowledge under similar circumstances." State v. Womble, 93 Wn.App. 599, 604, 969 P.2d 1097 (citing State v. Shipp, 93 Wn.2d 510, 516, 610 P.2d 1322 (1980)), review denied, 138 Wn.2d 1009 (1999).
Mere possession of recently stolen property is insufficient to establish that the possessor knew the property was stolen. State v. Couet, 71 Wn.2d 773, 775, 430 P.2d 974 (1967). But possession of recently stolen property, coupled with "'slight corroborative evidence,'" is sufficient to prove knowledge. Womble, 93 Wn.App. at 604 (internal quotation marks omitted) (quoting Couet, 77 Wn.2d at 776). Evidence of Nugent's evasive behavior, the car's "punched" ignition, and Nugent's possession of a screwdriver that could be used to start the car constitutes sufficient corroborative evidence to support the jury's finding that Nugent knew the vehicle was stolen. See State v. L.A., 82 Wn.App. 275, 276, 918 P.2d 173 (1996). Accordingly, this argument fails.
III. Possession of Motor Vehicle Theft Tools
Finally, Nugent argues that the State failed to present sufficient evidence that he possessed motor vehicle theft tools. Specifically, he argues that there was no evidence that (1) he possessed the shaved keys; (2) the shaved keys were used to steal the vehicle; or (3) the screwdriver he possessed had been adapted, designed, or commonly used for vehicle theft or had caused the damage to the vehicle.
RCW 9A.56.063 provides in part:
(1) Any person who makes or mends, or causes to be made or mended, uses, or has in his or her possession any motor vehicle theft tool, that is adapted, designed, or commonly used for the commission of motor vehicle related theft, under circumstances evincing an intent to use or employ, or allow the same to be used or employed, in the commission of motor vehicle theft, or knowing that the same is intended to be so used, is guilty of making or having motor vehicle theft tools.
(2) For the purpose of this section, motor vehicle theft tool includes, but is not limited to, the following: Slim jim, . . . altered or shaved key, . . ., [or] any other implement shown by facts and circumstances that is intended to be used in the commission of a motor vehicle related theft, or knowing that the same is intended to be so used.
Even presuming that there was insufficient evidence to show that Nugent possessed the slim jim or the shaved keys, the evidence was sufficient to prove that Nugent possessed the screwdriver as a motor vehicle theft tool. Although a screwdriver is not necessarily such a tool, the circumstances here, which were sufficient for the jury to find that Nugent possessed the stolen the car, namely the presence of his belongings inside the car and the fact the ignition had been punched, coupled with his possession of a screwdriver that could be used to start the car, also demonstrate that the evidence was sufficient for a jury to find that he used the screwdriver to commit the theft. Thus, this argument also fails.
We affirm.
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 in accordance with RCW 2.06.040, it is so ordered.
We concur: Wiggins, J., Bridgewater, J.P.T.