Opinion
No. 37019-1-II.
January 13, 2009.
Appeal from a judgment of the Superior Court for Pierce County, No. 07-1-03568-2, Frank E. Cuthbertson, J., entered November 14, 2007.
Affirmed by unpublished opinion per Quinn-Brintnall, J., concurred in by Houghton and Hunt, JJ.
UNPUBLISHED OPINION
A jury found Marlin Keone Souza guilty of unlawful possession of a controlled substance. On appeal, Souza argues that, because the State failed to demonstrate that he had dominion and control over the drugs, sufficient evidence does not support his conviction. We disagree and affirm.
FACTS
On July 8, 2007, Officer Jeremy Prater attempted to stop Souza's car because the vehicle's registration had expired. Souza's passengers included three children (two in the back seat, one in the front passenger seat) and another adult male seated in the back seat behind Souza. Prater activated his emergency lights, but Souza did not pull over. The adult passenger looked back at the officer and gestured toward Souza. Souza continued driving and showed no signs of stopping, even as Prater followed him through two traffic lights. After nine blocks, Prater used his public address system (PA) to tell Souza to pull over. Souza leaned out of his car and yelled something to Prater but proceeded through the intersection when the light turned green. Souza continued driving until he reached a residence, about 12 blocks away from where Prater first attempted to pull him over.
When Souza finally stopped, Officer Prater immediately put him in handcuffs. The officer could smell intoxicants both in the car and on Souza. Other officers arrived to assist Prater and they conducted a search of the vehicle incident to Souza's arrest. Officer Timothy Borchardt found a small baggie on the floor in the space between the front passenger seat and door. The baggie contained methamphetamine.
The officers also detained and subsequently released the other adult passenger.
Souza testified that he spent July 8, 2007, drinking beer at a lake while the kids swam. Souza claimed he did not pull over for Officer Prater because he wanted to take the children home and because he thought if he drove the car home, the police could not tow it. Souza also testified that he had never seen the baggie and did not know it was in his car, although he told Prater that he had personally detailed his car a few days before the arrest. Despite denying the baggie of methamphetamine was his, Souza told Prater that he used, but did not purchase, methamphetamine.
On July 9, 2007, the State charged Souza with unlawful possession of a controlled substance, driving under the influence of intoxicants, and failure to obey a law enforcement officer. A jury found Souza guilty on all three counts.
Originally, the State also charged Souza with operating a vehicle without a valid license but amended the information and removed this charge on October 23, 2007.
The trial court sentenced Souza to six months for unlawful possession of a controlled substance. Souza challenges only the sufficiency of the evidence supporting his unlawful possession of a controlled substance conviction.
Souza received sentences of 365 days (with 236 days suspended for two years) for driving under the influence and 90 days for failure to obey an officer. All of Souza's sentences run concurrently.
ANALYSIS
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 have found guilt beyond a reasonable doubt. State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004); State v. Green, 94 Wn.2d 216, 220-22, 616 P.2d 628 (1980). A claim of insufficiency admits the truth of the State's evidence and all inferences this court reasonably can draw from that evidence. Thomas, 150 Wn.2d at 874 (quoting State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992)). Whether Souza "possessed" the methamphetamine was a question for the jury. See State v. Staley, 123 Wn.2d 794, 802, 872 P.2d 502 (1994). We defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and persuasiveness of the evidence. Thomas, 150 Wn.2d at 874-75. Circumstantial and direct evidence are considered equally reliable. Thomas, 150 Wn.2d at 874.
Possessing a controlled substance is unlawful under RCW 69.50.4013. Methamphetamine is a controlled substance. RCW 69.50.206(d)(2). To prove possession beyond a reasonable doubt, the State must establish that possession is either actual or constructive. Staley, 123 Wn.2d at 798 (citing State v. Walcott, 72 Wn.2d 959, 968, 435 P.2d 994 (1967), cert. denied, 393 U.S. 890 (1968)); State v. Callahan, 77 Wn.2d 27, 29, 459 P.2d 400 (1969). "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." Callahan, 77 Wn.2d at 29. Because Souza was not in actual possession of the contraband upon his arrest, the question is whether the State's evidence is sufficient to establish constructive possession.
RCW 69.50.4013 states:
(1) It is unlawful for any person to possess a controlled substance unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his or her professional practice, or except as otherwise authorized by this chapter.
(2) Except as provided in RCW 69.50.4014, any person who violates this section is guilty of a class C felony punishable under chapter 9A.20 RCW.
Souza does not contest that the substance found in the baggie in the car was methamphetamine.
Methamphetamine is listed as a controlled substance in Schedule II of the Uniform Controlled Substances Act under RCW 69.50.206:
(d) Stimulants. Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of the following substances having a stimulant effect on the central nervous system:
. . . .
(2) Methamphetamine, its salts, isomers, and salts of its isomers.
Souza presents four premises he claims support his argument that the State failed to show he had dominion and control over the methamphetamine: (1) the State did not directly prove Souza owned the car, so it failed to show he had dominion and control over the premises in which the drugs were found, (2) the State did not provide sufficient evidence showing that Souza could immediately reduce the baggie to actual possession, (3) because proximity to the contraband is not enough to prove constructive possession, the State needed to present other evidence showing Souza's connection to the baggie, and (4) Souza was not the only person in the car.
None of Souza's claims alone is determinative of his guilt or innocence; rather, "[v]arious factors determine dominion and control, and the cumulative effect of a number of factors is a strong indication of constructive possession." State v. Ibarra-Raya, 145 Wn. App. 516, 525, 187 P.3d 301 (2008) (citing State v. Partin, 88 Wn.2d 899, 906, 567 P.2d 1136 (1977)). Control over the premises raises a rebuttable inference that the defendant possessed the drugs. 13A Seth A. Fine Douglas J. Ende, Washington Practice: Criminal Law, § 906 at 174 (1998); see also Callahan, 77 Wn.2d at 30. A car may be considered a "premises" for the purpose of determining whether the defendant had dominion and control. State v. Mathews, 4 Wn. App. 653, 656, 484 P.2d 942 (1971). Either proximity to the controlled substance or the ability to reduce the substance to immediate possession does not, by itself, show dominion and control. State v. Hagen, 55 Wn. App. 494, 499, 781 P.2d 892 (1989); Mathews, 4 Wn. App. at 656.
Dominion and control over the substance need not be exclusive. State v. Cote, 123 Wn. App. 546, 549, 96 P.3d 410 (2004). Establishing constructive possession is a fact-specific inquiry that requires examining the totality of the circumstances to determine whether the jury could have reasonably inferred that Souza had dominion and control over the methamphetamine. Cote, 123 Wn. App. at 549 (citing Partin, 88 Wn.2d at 906).
Here, despite Souza's claims, the totality of the evidence presented at trial sufficiently supports his conviction. Souza was driving the car, he told the officers he detailed the car himself two days before he was arrested, and he referred to the car as "my vehicle" during his testimony. 6 Report of Proceedings at 294. Although the drugs were not found directly next to Souza, the passengers sitting closest to the baggie were all children and Officer Prater testified that Souza easily could have reached from the driver's seat to the passenger door. In addition, Souza failed to pull over for 12 blocks, despite Prater's use of his emergency lights and PA. See State v. Womble, 93 Wn. App. 599, 604, 969 P.2d 1097, review denied, 138 Wn.2d 1009 (1999) (flight corroborates guilty knowledge). Souza and the car smelled like intoxicants and he admitted to drinking beer before driving that day. Finally, Souza admitted to Prater that he used methamphetamine. Viewed in the light most favorable to the State, this evidence supports the jury's finding that Souza had dominion and control over the drugs found in his car. We affirm Souza's conviction of unlawful possession of a controlled substance.
The evidence against Souza is very similar to State v. Huff, 64 Wn. App. 641, 654, 826 P.2d 698, review denied, 119 Wn.2d 1007 (1992), where we found constructive possession of a controlled substance based upon the State's showing that Huff was driving the car where drugs were found, he and the car smelled like methamphetamine, Huff failed to stop when the officer flashed his emergency lights, Huff's passenger made furtive movements while Huff continued to drive, and the drugs were found in a pile of laundry in the back seat.
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.
HOUGHTON, PJ. and HUNT, J., Concur