                                                                                             Filed
                                                                                       Washington State
                                                                                       Court of Appeals
                                                                                        Division Two

                                                                                       January 23, 2019




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
    STATE OF WASHINGTON,                                            No. 50813-3-II

                                 Respondent,

           v.

    DAVID MARC LOISELLE,                                      UNPUBLISHED OPINION

                                 Appellant.

          MELNICK, J. — David Marc Loiselle appeals his conviction of possession of heroin. He

contends that the State presented insufficient evidence that he had constructive possession of the

drugs found in his bathroom. We affirm.

                                               FACTS

I.        INCIDENT

          In March 2017, Department of Corrections (DOC) officers went to Stephanie Suttles’s

residence, intending to arrest her. Suttles lived with her parents, David and Tammy Loiselle.1

Tammy answered the door and the officers said they had a warrant to arrest Suttles. Tammy gave

them permission to search the residence. Loiselle was outside the residence and the officers did

not see him.




1
     To prevent confusion, we refer to Tammy by her first name. We intend no disrespect.
50813-3-II


       While searching the residence for Suttles, the officers found drugs and drug paraphernalia,

including several hypodermic needles with heroin inside them and several small containers that

contained heroin residue. They then contacted Landon Jones, a Cowlitz County Deputy, to assist

in the drug investigation. Jones observed and took pictures of syringes, bottle caps, cotton swabs,

and “stuff commonly used to inject heroin.” Report of Proceedings (RP) (June 2, 2017) at 81. At

some point, the DOC officers found Suttles hiding inside an air vent and placed her under arrest.

       The officers found the drugs in the master bathroom attached to the Loiselles’ master

bedroom. Suttles lived in a separate portion of the house. Suttles sometimes used the master

bathroom where the drugs were found, but it was Tammy and Loiselle’s bathroom. Mixed in with

the drugs and drug paraphernalia was some paperwork with Suttles’s name on it, a Bible with

Suttles’s name in it, and various bathroom products that Jones believed likely belonged to all three

residents.

       Jones and the DOC officers gathered Tammy, Suttles, and several visitors who were in the

residence into a room of the house to question them about the heroin. Tammy told Jones that the

drugs must be Loiselle’s because they were not hers. While Jones questioned Tammy about the

heroin, he heard a male voice from a nearby room call out that “‘[a]nything you saw in there is

mine.’” RP at (June 2, 2017) at 87-88. Jones discovered it was Loiselle who had shouted and

questioned him further about the drugs. Loiselle repeated that the drugs were his, and added that

his drug of choice was heroin. He further stated that he had used heroin that morning.

       Tammy testified that, when she saw police coming, she gathered drugs from Suttles’ part

of the house and hid them in her master bathroom, thinking the police would not search there.

When she saw the officers searching her bedroom and saw Loiselle enter the house, she told him,




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50813-3-II


“‘Oh my God I’m going to jail. Don’t let me go to jail.’” RP (June 2, 2017) at 122. Loiselle then

told police the drugs were his to protect her. Tammy said Loiselle does not do drugs.

       Loiselle testified that he assumed police were at the residence on a drug issue due to

Suttles’s history of drug problems. When he heard Tammy say, “‘Don’t let me go to jail,’” he told

the officers the drugs were his, although he did not know there were any drugs in the house. RP

(June 2, 2017) at 138. Loiselle denied telling Jones that heroin was his drug of choice or that he

had used that morning. He said the drugs were not his, he lied to cover for his wife, and he has

never used heroin.

II.    CHARGES

       The State charged Loiselle with one count of violating the Uniform Controlled Substances

Act by possessing heroin. Clerk’s Papers (CP) at 4. After a trial, the jury found him guilty.

Loiselle appeals.

                                          ANALYSIS

       Loiselle contends that the State failed to prove that he had constructive possession of the

drugs. We disagree.

       To determine whether sufficient evidence supports a conviction, we view the evidence in

the light most favorable to the State and determine whether any rational fact finder could have

found the elements of the crime beyond a reasonable doubt. State v. Engel, 166 Wn.2d 572, 576,

210 P.3d 1007 (2009). In claiming insufficient evidence, “the defendant necessarily admits the

truth of the State’s evidence and all reasonable inferences that can be drawn from it.” State v.

Drum, 168 Wn.2d 23, 35, 225 P.3d 237 (2010). Any inferences “‘must be drawn in favor of the

State and interpreted most strongly against the defendant.’” State v. Homan, 181 Wn.2d 102, 106,

330 P.3d 182 (2014) (quoting State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992)).



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       RCW 69.50.4013 makes it unlawful for any person to possess a controlled substance

without a valid prescription. The jury instructions in this case required that the jury find: “(1) That

on or about March 8, 2017, the defendant possessed a controlled substance, and (2) That this act

occurred in the State of Washington.” CP at 19. In this case, Loiselle challenges the sufficiency

of the State’s evidence that he “possessed” heroin.

       “Possession” of an item may be “actual or constructive to support a criminal charge.” State

v. Jones, 146 Wn.2d 328, 333, 45 P.3d 1062 (2002). Actual possession is where the defendant

“has physical custody of the item,” whereas constructive possession is where the defendant “has

dominion and control over the item” such that it “may be reduced to actual possession

immediately.” Jones, 146 Wn.2d at 333. Whether the person has control depends on the totality

of the circumstances presented. State v. Davis, 182 Wn.2d 222, 227, 340 P.3d 820 (2014).

       “[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). However,

dominion and control over the premises where a drug is found may imply that the person has

dominion and control over items on the premises. State v. Reichert, 158 Wn. App. 374, 390, 242

P.3d 44 (2010).     The defendant need not have exclusive control to establish constructive

possession. State v. Cote, 123 Wn. App. 546, 549, 96 P.3d 410 (2004).

       In this case, officers found the drugs in the master bathroom attached to Loiselle’s master

bedroom. Loiselle and Tammy both told Jones that the drugs belonged to Loiselle. Loiselle also

told Jones that heroin was his drug of choice and he had used it that morning. Although Loiselle

testified that he had been lying to protect Tammy, credibility determinations are for the trier of

fact. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). Taking the evidence in the light




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most favorable to the State, a reasonable fact finder could have found that Loiselle had constructive

possession of the drugs beyond a reasonable doubt. 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.




                                                              Melnick, J.

We concur:




        Maxa, C.J.




        Lee, J.




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