State v. George

Dwyer, A.C.J.

¶39 (concurring and dissenting) — I concur in both the majority’s reasoning and its holdings with respect to the question of the sufficiency of the charging document and as to whether the trial court erred by refusing to instruct the jury on the defense of unwitting possession. I would reverse the judgment and remand the cause for retrial. However, I part company with the majority on the question of whether any jury could reasonably have concluded that Graeme George had constructive possession of the marijuana pipe and its contents. The majority’s holding on this issue is contrary to both the law and common sense, and from it I dissent.

¶40 Sufficient evidence supports a jury’s determination of guilt if, “viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” State v. Zunker, 112 Wn. App. 130, 135, 48 P.3d 344 (2002) (citing State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980)). All reasonable inferences must be drawn in favor of the verdict and interpreted most strongly against the defendant. Zunker, 112 Wn. App. at 135 (citing State v. Gentry, 125 Wn.2d 570, 597, 888 P.2d 1105 (1995)). These are long-standing principles.

¶41 Several different standards of review are pertinent to this appeal. With regard to George’s claim of error on the instructional issue, he gets the benefit of the evidence and the inferences therefrom. Indeed, all factual inferences with respect to whether a requested jury instruction is warranted are drawn in favor of the defendant. To the contrary, however, all factual inferences with respect to whether the evidence presented at trial is sufficient to support a jury’s verdict of guilt, under the instructions that were actually given, are drawn against the defendant. *925Thus, based on a given set of facts, reversal may be warranted due to the trial court’s failure to properly instruct the jury, yet not be warranted when premised upon an assertion by the defendant that insufficient evidence was adduced to support a conviction under the instructions that the trial court actually gave.

¶42 Here, it is true that insufficient evidence exists to support a finding that George exercised dominion and control over the pipe and its contents by virtue of exercising dominion and control over the premises in which they were located — the vehicle. George was not the registered owner of the vehicle. That person was present in the front passenger seat. Nor was George the driver of the vehicle. Accordingly, in order for the State to have adduced sufficient evidence at trial to support George’s convictions, it was required to demonstrate that George, from his position in the rear passenger seat, exercised dominion and control over the pipe itself, and thus the burned marijuana contained therein.

¶43 The majority holds that no reasonable jury could have concluded that the State made this showing. To reach this holding, the majority misapplies the applicable standard of review. Moreover, given where the pipe was found and the circumstances under which Trooper Thompson found it, the holding strains credulity. The holding stems from the mistaken notion that appellate cases reviewing findings of constructive possession present a “spectrum” of factual scenarios from which we are to choose, and that this case falls in some ill-defined area of that spectrum in which insufficient evidence exists to support the finding.

¶44 Determining whether sufficient facts to support a finding of constructive possession were adduced at trial is simpler than that. This court explained how to determine whether the State did so in State v. Mathews, 4 Wn. App. 653, 484 P.2d 942 (1971). In Mathews, as in this case, drugs were found on the floor of a vehicle next to where a backseat passenger was sitting. 4 Wn. App. at 655. Also as in this case, other evidence was presented by the State that tended *926to show that the passenger had dominion and control over the drugs — for example, that the persons in the front seats of the car stated that the bag of drugs in the back seat “did not belong to them and they did not know that it was there.” Mathews, 4 Wn. App. at 656-57. It was made clear in Mathews that sufficient evidence exists to support a jury’s finding that a vehicle passenger exercised dominion and control over controlled substances present in the vehicle, and thus that the passenger constructively possessed the drugs, where the State proves “proximity” of the defendant to the controlled substances, “coupled with other circumstances linking” the defendant to them. Mathews, 4 Wn. App. at 658.

¶45 Once such evidence is presented, whether the circumstantial evidence of constructive possession “ ‘excludes every reasonable hypothesis consistent with the [defendant’s] innocence is a determination properly made by the trier of the facts. This court’s only function on appeal is to determine if there is substantial evidence in the record tending to establish circumstances upon which a finding of guilt can be predicated.’ ” Mathews, 4 Wn. App. at 657-58 (emphasis added) (quoting State v. Green, 2 Wn. App. 57, 70, 466 P.2d 193 (1970)). Accordingly, in order to determine whether the State adduced sufficient evidence at trial to support George’s convictions, the only inquiry that we should make is whether evidence was presented from which the jury could find that (1) George was located sufficiently near the pipe to exercise dominion and control over it and (2) factors other than George’s proximity to the pipe and its contents linked George to them.

¶46 The majority in effect concedes that the first part of the Mathews test was met but glosses over the direct and circumstantial evidence, and the inferences to be drawn therefrom, that tend to prove that the second part of the Mathews test was met as well:

¶47 (1) When the vehicle’s driver rolled the window down to speak with Trooper Thompson, the strong odor of recently burned marijuana vented into Trooper Thompson’s *927face. From this, the jury reasonably could have inferred that marijuana had been smoked in the vehicle not long before the traffic stop occurred.

¶48 (2) Neither another pipe, nor rolling papers, nor any other item of paraphernalia was found in the vehicle. From this, the jury reasonably could have inferred that the pipe was used to smoke the marijuana that Trooper Thompson smelled.

¶49 (3) There was partially burned marijuana in the pipe when it was found in the search. No other marijuana was found in the vehicle. None of the men was found to be in physical possession of other marijuana. From this, the jury reasonably could have inferred that the marijuana residue was the source of the marijuana odor that had been sensed by Trooper Thompson and, thus, that the marijuana in the pipe had been smoked not long before the traffic stop occurred.

¶50 (4) George was in the vehicle at the time of the traffic stop. From this, combined with the presence of the odor of marijuana still in the vehicle, the jury reasonably could have inferred that George was in the vehicle at the time marijuana was smoked therein.

¶51 (5) Three men were present in the vehicle when it was stopped by Trooper Thompson. From this, the jury reasonably could have inferred that at least one of the men in the vehicle was a person who smoked the marijuana that Trooper Thompson smelled.

¶52 (6) Trooper Thompson found the pipe on the floorboard in the back seat, next to where George’s feet had been prior to his removal from the vehicle. From this, the jury reasonably could have inferred that George was the last person to handle the pipe.

¶53 (7) Trooper Thompson did not see the pipe on the floorboard of the vehicle when he initially looked into it using his flashlight. However, after he separately removed both the vehicle’s driver and its registered owner and placed them in his patrol car, patting them down as he did *928so, and after he separately removed George from the vehicle, he found the pipe on the vehicle’s back seat floorboard. From this, the jury reasonably could have concluded that George had secreted the pipe on his person at the outset of the traffic stop but, upon seeing that he was going to be searched upon his removal from the vehicle, placed the pipe on the floorboard while either the driver or the registered owner were being secured in Trooper Thompson’s patrol car.

¶54 (8) From all this evidence, the jury reasonably could infer that George had been handling the pipe and the marijuana residue therein for the purpose of smoking marijuana, and that the odor of burned marijuana in the vehicle was the result of him doing so.2

¶55 Thus, in addition to evidence offered to show George’s physical proximity to the pipe and its contents, the State adduced significant evidence demonstrating George’s temporal proximity to an event — the recent burning of marijuana within the confined space of the vehicle — from which the jury reasonably could have concluded that George knew that marijuana was being smoked in his presence immediately prior to the traffic stop initiated by Trooper Thompson, had handled the pipe containing the marijuana, had done so for the purpose of ingesting marijuana, and had been the last person in the vehicle to ingest marijuana using the pipe prior to Trooper Thompson’s stop*929ping the vehicle. Notwithstanding all of this, the majority holds that “[t]he State’s evidence boils down to mere proximity.” Majority at 923. If our task was to draw all inferences in George’s favor, this might be so. But, of course, drawing inferences in such a manner is precisely what we do not do.

¶56 On the other hand, drawing all reasonable inferences in favor of the verdict, as should be done, Zunker, 112 Wn. App. at 135, leads to the commonsense conclusion that the evidence presented by the State was sufficient to support the jury’s conclusion that George had participated in the smoking of the marijuana and, thus, had exercised dominion and control over the pipe and its contents.3 Thus, the jury rationally could have concluded that George both was in constructive possession of the marijuana residue contained in the pipe and had been using the pipe to smoke marijuana not long before Trooper Thompson stopped the vehicle. Accordingly, sufficient evidence was adduced at trial to support George’s convictions. I dissent from the majority’s holding to the contrary.

It is the above-recited sequence of reasonable inferences that distinguishes this case from our decision in State v. Cote, 123 Wn. App. 546, 96 P.3d 410 (2004). In that case, we found that the defendant’s former presence as a passenger in a stolen truck, combined with his fingerprints on a mason jar containing chemicals used to manufacture methamphetamine found in the truck, provided insufficient evidence to sustain a conviction for constructively possessing controlled substances. Cote, 123 Wn. App. at 550. As we pointed out, “Mr. Cote was not in or near the truck at the time of his arrest” and “the fingerprint on the jar proves only that Mr. Cote touched it.” Cote, 123 Wn. App. at 550. Moreover, the evidence at issue in Cote was in the “ ‘back of the stolen pickup,’ ” not in the passenger area, where the defendant had previously been present. Cote, 123 Wn. App. at 550.

The facts in Cote are very different from the facts of this case, in that George was within the vehicle and was in close physical proximity to the contraband at the time the search of the vehicle was initiated, and given that the evidence suggests that marijuana was burned in the vehicle not long before the seizure occurred.

To reiterate, and make absolutely clear, the law does not require exclusive possession of a controlled substance in order for a conviction for its possession to be sustained. State v. Turner, 103 Wn. App. 515, 522, 13 P.3d 234 (2000). Thus, the State was not required to prove that only George had smoked marijuana out of the pipe, or to disprove that either the vehicle’s driver or its owner-passenger had done so.