Opinion
No. 36337-2-II.
April 15, 2008.
Appeal from a judgment of the Superior Court for Mason County, No. 06-1-00324-1, James B. Sawyer II, J., entered May 8, 2007.
Affirmed by unpublished opinion per Bridgewater, J., concurred in by Houghton, C.J., and Hunt, J.
Remeco Z. Lewis appeals his conviction for possession of a controlled substance — methamphetamine. We affirm.
Facts
Washington State Patrol Trooper Richard Pigmon was traveling southbound on State Route 3 in Mason County when he encountered a maroon Saturn vehicle directly in front of him. The Saturn crossed the double yellow centerline of the road twice within a two-mile stretch. Pigmon activated his emergency lights to conduct a traffic stop on the vehicle. Inside the vehicle, Pigmon identified four people: Remeco Lewis in the driver seat, Leona Dudoit in the passenger seat, Davana Jones in the back driver seat, and Jack Smith in the back passenger seat.
As part of his investigation, Pigmon discovered that the Saturn's registered owner was Juan Hernandez, who was not in the vehicle.
Pigmon asked Lewis for his driver's license and vehicle registration. Pigmon then performed a background check on Lewis, and determined that Lewis's driver's license was suspended and that there was a warrant out for his arrest on charges of marijuana possession. Pigmon arrested Lewis for driving with a suspended license, escorted him to the rear of the patrol vehicle, searched him incident to arrest, and secured him in the vehicle. Pigmon followed accepted procedure and searched the driver seat area of the vehicle, including the driver seat, the center console, and the door panel.
In between the driver seat and the center console, Pigmon discovered a little red metal container. Inside the container, Pigmon found a small clear plastic baggie with a white crystal substance in it that later field tested positive for methamphetamine. In the center console, Pigmon found an ashtray that was not securely fastened. When he lifted it up, Pigmon found a clear plastic bag with a large amount of crystal substance in it, "the most meth [Pigmon has] ever found in a vehicle." RP (Nov. 2, 2006) at 33.
The parties stipulated that this crystal substance tested positive for methamphetamine.
Pigmon also found a black duffel bag on the passenger side of the vehicle. Inside the duffel bag was another baggie of white crystals, which later field tested positive for methamphetamine. When Pigmon asked Lewis if the duffel bag was his, Lewis answered affirmatively. Lewis denied, however, that the baggie of methamphetamine belonged to him.
The State charged Lewis with unlawful possession of a controlled substance — methamphetamine, unlawful use of drug paraphernalia, and third degree driving while license suspended. At trial, the State decided to dismiss the unlawful use of drug paraphernalia charge. Lewis testified that he had only been driving the Saturn for an hour prior to the traffic stop, and that he believed the Saturn belonged to Jack Smith, the passenger in the back of the vehicle. Lewis further testified that the duffel bag did not really belong to him, and that he had only claimed the duffel bag as his because the other passengers had said the duffel bag belonged to him. The jury found Lewis guilty of possession of a controlled substance and third degree driving while license suspended.
Analysis
Lewis appeals, arguing that (1) insufficient evidence supported his conviction for possession of a controlled substance, and (2) sufficient evidence proved that his possession, if any, was unwitting. In response, the State argues that sufficient evidence supported the jury's findings.
A. Sufficiency of the Evidence
We consider evidence sufficient to support a conviction if, when viewed in the light most favorable to the State, it allows any reasonable trier of fact to find each element of a crime beyond a reasonable doubt. State v. DeVries, 149 Wn.2d 842, 849, 72 P.3d 748 (2003). When the sufficiency of evidence is challenged in a criminal case, this court draws all reasonable inferences from the evidence in favor of the State and interprets them most strongly against the defendant. State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977). A claim of insufficiency admits the truth of the State's evidence and all reasonable inferences that can be drawn from it. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). We give circumstantial evidence and direct evidence equal weight. State v. Liden, 138 Wn. App. 110, 117, 156 P.3d 259 (2007). We leave resolution of conflicting testimony, credibility determinations, and the persuasiveness of evidence to the fact finder and do not review them on appeal. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004).
To prove the charged crime, the State must show that Lewis possessed a controlled substance. RCW 69.50.4013(1). Methamphetamine is undoubtedly a controlled substance. See State v. Goodman, 150 Wn.2d 774, 778, 83 P.3d 410 (2004). Possession may be actual or constructive. State v. Echevarria, 85 Wn. App. 777, 783, 934 P.2d 1214 (1997). Actual possession occurs when goods are in the personal custody of the person charged with possession. Constructive possession occurs when a person not in actual possession still has dominion and control over the object or place where the object was found. State v. Chavez, 138 Wn. App. 29, 34, 156 P.3d 246 (2007). "Dominion and control" does not have to be exclusive and can be established by circumstantial evidence. Chavez, 138 Wn. App. at 34; State v. Wood, 45 Wn. App. 299, 312, 725 P.2d 435, review denied, 107 Wn.2d 1017 (1986). We will look at the totality of the situation to determine if the defendant had dominion and control. Partin, 88 Wn.2d at 906. One aspect of dominion and control is that the defendant may reduce the object to actual possession immediately. State v. Jones, 146 Wn.2d 328, 333, 45 P.3d 1062 (2002). While proximity alone is not sufficient to establish constructive possession, proximity coupled with other circumstances from which the trier of fact can infer dominion and control is sufficient to show constructive possession. Chavez, 138 Wn. App at 35.
RCW 69.50.4013(1) provides that:
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.
The evidence supports Lewis's possession of a controlled substance. The record shows: (1) Lewis was the driver of the vehicle; (2) Pigmon found a red metal container between the driver seat and the center console, which contained methamphetamine; (3) Pigmon found a large amount of methamphetamine hidden under an ashtray in the center console, within arm's reach of the driver; (4) Lewis admitted to being the owner of a duffel bag in which Pigmon found a baggie of methamphetamine; and (5) Pigmon did not witness any "[f]urtive movements" by other occupants of the vehicle to place baggies near the driver seat or in the duffel bag. RP (Nov. 2, 2006) at 44. Though Lewis later claimed that the duffel bag was not his, the jury found this evidence sufficient to convict him. We leave credibility determinations to the fact finder, and will not review them on appeal. Thomas, 150 Wn.2d at 874-75. When drawing all reasonable inferences in favor of the State, we hold that the evidence is sufficient for the jury to infer dominion and control, and therefore the evidence was sufficient for conviction.
B. Unwitting Possession Unwitting possession is an affirmative defense to the charge of possession of a controlled substance. State v. Balzer, 91 Wn. App. 44, 67, 954 P.2d 931, review denied, 136 Wn.2d 1022 (1998). To establish the defense, a defendant must prove by a preponderance of the evidence that possession of the unlawful substance is unwitting. State v. Wiley, 79 Wn. App. 117, 123, 900 P.2d 1116 (1995). "Preponderance of the evidence" means that unwitting possession must be more probably true than not true. San Juan County v. Ayer, 24 Wn. App. 852, 860, 604 P.2d 1304 (1979).
Lewis claims that the methamphetamine was concealed from view and that he had only been driving the Saturn for a short while. Lewis denied that he possessed or knew that the methamphetamine was in the vehicle. The fact finder, in convicting Lewis, was not persuaded by Lewis's testimony. Since Pigmon also found methamphetamine in a red container next to the driver seat and in a duffel bag that Lewis admitted belonged to him, we defer to the fact finder on issues of conflicting testimony, credibility of witnesses, and persuasiveness of the evidence, and he did not meet his burden of proving unwitting possession by a preponderance of the evidence. Thomas, 150 Wn.2d at 874-75.
Affirmed.
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, C.J., HUNT, J., concur