Opinion
No. 28973-7-III.
January 13, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for Spokane County, No. 08-1-01964-1, Annette S. Plese, J., entered April 13, 2010.
Affirmed by unpublished opinion per Korsmo, A.C.J., concurred in by Brown and Siddoway, JJ.
Michael Reid argues that the evidence was insufficient to support convictions for possession of controlled substances after baggies of crack cocaine and hydrocodone were found in the backseat of a police car where he had been previously secured. We disagree and affirm.
FACTS
In the early morning hours of March 31, 2008, Deputy Brian Frost received a report that an unknown vehicle had almost run over a fellow officer. Deputy Frost identified and stopped the vehicle, which was driven by Mr. Reid, who had been in the course of delivering newspapers. Upon finding that Mr. Reid was driving with a suspended license, Deputy Frost arrested, handcuffed, and secured Mr. Reid in the back of his patrol car.
After placing Mr. Reid in the patrol car, Deputy Frost noticed the car rocking back and forth. Deputy Frost removed Mr. Reid from the car, and noticed two small baggies on the floorboard of the backseat. The substances in the baggies were later identified as crack cocaine and hydrocodone.
Mr. Reid was charged with two counts of possession of a controlled substance; he waived his right to a jury trial. Deputy Frost testified at trial that he always searches the back of his patrol car after making an arrest and that he was certain that the drugs had not been in the car prior to Mr. Reid's presence in the vehicle. Mr. Reid's father testified that Mr. Reid had previously used hydrocodone without a prescription. At the close of the State's case, Mr. Reid moved to dismiss for lack of evidence proving constructive possession. The trial court denied the motion, and Mr. Reid presented his defense.
The trial court determined that Mr. Reid was guilty of both counts. This appeal timely followed.
ANALYSIS
Mr. Reid first argues that the trial court erred when it denied his motion to dismiss for insufficiency of evidence. The State contends that Mr. Reid waived his right to challenge dismissal of his motion when Mr. Reid presented his defense case. We find that Mr. Reid made a technical mistake in his assignment of error, but this will not prevent adjudication of his sufficiency of the evidence claim.
Waiver
Mr. Reid's first assignment of error is that the trial court failed to grant his motion to dismiss for insufficiency of evidence. In response, the State correctly states that Mr. Reid waived his right to challenge the dismissal when he presented his defense case after the State's case in chief. See State v. Jackson, 82 Wn. App. 594, 608, 918 P.2d 945 (1996), review denied, 131 Wn.2d 1006 (1997). However, Mr. Reid is more accurately challenging the sufficiency of the State's evidence, a claim that can be brought at "a late stage of the proceedings." Id.
We conclude that Mr. Reid may not appeal the denial of his motion to dismiss, but he may challenge the sufficiency of the evidence that led to his convictions.
Sufficiency of the Evidence
Mr. Reid contends that the evidence did not support the finding that he constructively possessed the drugs found in the backseat of the patrol car. This court reviews a challenge to the sufficiency of evidence to see if there is evidence from which the finder of fact could find each element of the offense proven beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221-222, 616 P.2d 628 (1980). This court must defer to the trier of fact "on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence." State v. Thomas, 150 Wn.2d 821, 874-875, 83 P.3d 970 (2004). "Credibility determinations are for the trier of fact and are not subject to review." Id. at 874.
It is unlawful to possess a controlled substance. RCW 69.50.4013(1). Possession can be actual or constructive. State v. Staley, 123 Wn.2d 794, 798, 872 P.2d 502 (1994). Constructive possession means, "the goods are not in actual, physical possession, but . . . the person charged with possession has dominion and control over the goods." State v. Callahan, 77 Wn.2d 27, 29, 459 P.2d 400 (1969). Dominion and control is determined by looking at the totality of the circumstances. State v. Collins, 76 Wn. App. 496, 886 P.2d 243, review denied, 126 Wn.2d 1016 (1995). "[M]ere proximity to a controlled substance is not sufficient to establish constructive possession." State v. Shumaker, 142 Wn. App. 330, 333, 174 P.3d 1214 (2007).
The sufficiency challenge fails because the court's unchallenged factual findings confirm Mr. Reid had dominion and control over the drugs. When Mr. Reid was placed in the patrol car, Deputy Frost noticed the car rocking violently back and forth. Deputy Frost further testified that he was certain that the baggies had not been in his car prior to the arrest. Mr. Reid's father testified that Mr. Reid had previously taken hydrocodone without a prescription. This evidence was sufficient to support the bench verdict that Mr. Reid had placed the controlled substances in the car.
Mr. Reid does not contest a specific finding of fact, and his evidentiary challenge is more concerned with the weight of the evidence rather than the sufficiency. This court is unable to judge the weight of the evidence, and, therefore, we must defer to the findings made by the trial court. See Thomas, 150 Wn.2d at 874-875.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
BROWN, J. and
SIDDOWAY, J., concur.