                                                                                     ID:LEO
                                                                             COURT OF APIEALS- 1.11Y 1
                                                                              STATE OF WASHINGTON

                                                                             _201811PR 23 Ali 8:30




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                DIVISION ONE

THE STATE OF WASHINGTON,                                 No. 76169-2-1

                               Respondent,

                    V.                                   UNPUBLISHED OPINION

TERRY JEREMIAH CONNORS,

                               Appellant.                FILED: April 23, 2018

        SCHINDLER, J. — A jury convicted Terry Jeremiah Connors of possession of a
stolen motor vehicle in violation of RCW 9A.56.140(1). Connors seeks reversal, arguing

sufficient evidence does not support possession or knowledge. Because sufficient

evidence supports the conviction, we disagree, and affirm.

                                                FACTS

        Brian and Jennifer Desotell live in a trailer park on Yew Street Road in

Bellingham. At around 5:30 a.m. on September 8, 2016, Brian left his mobile home and

went outside.' In front of his mobile home, Brian saw Terry Jeremiah Connors in his

driveway with a motorcycle helmet, standing next to a red CBR500 motorcycle. Brian

had known Connors since Connors was a child.



         We refer to Brian and Jennifer Desotell by their first names for purposes of clarity and mean no
disrespect by doing so.
No. 76169-2-1/2

       Connors walked up on the porch and asked Brian for "tools to get the bike

running." Connors said the motorcycle was his, but Brian did not believe the motorcycle

belonged to Connors. Brian told Connors he was on his way to the airport. Brian said

he did not have time to help him and told Connors he "needed to take the bike and go."

Connors took the motorcycle and pushed it about 15 to 20 feet away in front of a

neighbor's house.

       Brian went back inside his mobile home and told his spouse Jennifer what had

happened. Jennifer looked out the kitchen window and saw the motorcycle in a

neighbor's driveway. Brian left to go to the airport.

       Jennifer called 911. Connors began "pounding" on her front door. Connors

asked Jennifer if he could borrow a screwdriver or a flashlight. Jennifer told him no.

Connors asked Jennifer if she could help "jump-start his motorcycle." Jennifer refused

and told Connors he needed to leave.

       Whatcom County Sheriffs Office Deputy Kurt Devries responded to the 911 call.

When Deputy Devries arrived, he saw Connors sleeping on the front porch of the

Desotells' mobile home. Deputy Devries verified the motorcycle had not been reported

stolen.

       Deputy Devries took Connors into custody on an unrelated matter. Because the

motorcycle had not been reported stolen, the motorcycle remained parked in the

neighbor's driveway. Deputy Devries helped Connors collect his personal property.

Connors did not possess any keys for the motorcycle or any tools.




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No. 76169-2-1/3

       Deputy Devries asked Connors if he wanted to bring the motorcycle helmet with

him. Connors told Deputy Devries he did not want to bring the helmet and asked the

deputy to throw the helmet away. Jennifer later threw away the helmet.

       Jennifer and two neighbors inspected the motorcycle later that day. Jennifer,

whose father was a mechanic, noticed the motorcycle appeared to have been "hot-

wired." Jennifer and her neighbors found the registration for the motorcycle underneath

the seat of the motorcycle. The registration showed the motorcycle belonged to Samuel

Williams. Bellingham Police Department Officer Joshua Willson contacted Williams to

ask if he was missing a motorcycle.

       Williams lived in downtown Bellingham. He believed his motorcycle was parked

next to his car in the gated parking garage attached to his apartment building. Williams

checked the parking garage and discovered his motorcycle was gone.

       Williams met Officer Willson at the Desotells' property. Williams confirmed the

motorcycle belonged to him and the motorcycle was not in the same condition as he left

it. The motorcycle "had multiple scrapes on the right side of it along the exhaust, the

handlebar, the mirrors, and the pegs." The wiring next to the left handlebar where the

ignition key is inserted looked "mangled," as if it had been "tampered with." Williams

said the motorcycle helmet did not belong to him.

      The State charged Connors with possession of a stolen motor vehicle in violation

of RCW 9A.56.068 and .140(1). Brian, Jennifer, Deputy Devries, Williams, and Officer

Willson testified at trial. The jury convicted Connors as charged.




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No. 76169-2-1/4

                                        ANALYSIS

       Connors argues the State did not prove beyond a reasonable doubt the essential

elements of possession and knowledge.

       The State has the burden of proving the elements of a crime beyond a

reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368

(1970); State v. Borrero, 147 Wn.2d 353, 364, 58 P.3d 245 (2002). Under the

Fourteenth Amendment and the Sixth Amendment to the United States Constitution and

article 1, sections 21 and 22 of the Washington State Constitution, a criminal defendant

is entitled to"'a jury determination that[he] is guilty of every element of the crime with

which he is charged, beyond a reasonable doubt.'" Apprendi v. New Jersey, 530 U.S.

466, 476-77, 120 S. Ct. 2348, 147 L. Ed. 2d 435(2000)2 (quoting United States v.

Gaudin, 515 U.S. 506, 510, 115 S. Ct. 2310, 132 L. Ed. 2d 444 (1995)); State v. Polo,

169 Wn. App. 750, 762-63, 282 P.3d 1116 (2012); State v. Johnson, 185 Wn. App. 655,

666, 342 P.3d 338(2015).

       In reviewing a challenge to the sufficiency of the evidence, we view the evidence

in the light most favorable to the State to determine whether any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt. State

v. Witherspoon, 180 Wn.2d 875, 883, 329 P.3d 888 (2014); State v. Salinas, 119 Wn.2d

192, 201, 829 P.2d 1068(1992). A challenge to the sufficiency of the evidence admits

the truth of the evidence. Witherspoon, 180 Wn.2d at 883. Circumstantial evidence

and direct evidence are equally reliable. State v. Kintz, 169 Wn.2d 537, 551, 238 P.3d

470 (2010). "[A]ll reasonable inferences from the evidence must be drawn in favor of

the State and interpreted most strongly against the defendant." Salinas, 119 Wn.2d at

       2 Alteration   in original.


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No. 76169-2-1/5

201. We defer to the trier of fact on "issues of witness credibility." Witherspoon, 180

Wn.2d at 883.

       Under RCW 9A.56.068(1), a person commits the crime of possession of a stolen

vehicle "if he or she [possesses] a stolen motor vehicle."3 RCW 9A.56.140(1) defines

the crime of "possessing stolen property" as:

      [K]nowingly to receive, retain, possess, conceal, or dispose of stolen
      property knowing that it has been stolen and to withhold or appropriate the
      same to the use of any person other than the true owner or person entitled
      thereto.

       Possession may be actual or constructive. State v. Jones, 146 Wn.2d 328, 333,

45 P.3d 1062(2002). "A defendant has actual possession when he or she has physical

custody of the item and constructive possession if he or she has dominion and control

over the item." Jones, 146 Wn.2d at 333.

       Here, the court instructed the jury on the elements of the crime and actual

possession:

            A person commits the crime of possessing a stolen motor vehicle
       when he or she possesses a stolen motor vehicle.

       Possessing a stolen motor vehicle means knowingly to possess, or
       dispose of a stolen motor vehicle knowing that it has been stolen and to
       withhold or appropriate the same to the use of any person other than the
       true owner or person entitled thereto.

The court instructed the jury:

              To convict the defendant of the crime of possessing a stolen motor
       vehicle, each of the following elements of the crime must be proved
       beyond a reasonable doubt:

             (1) That on or about the 8th day of September, 2016, the defendant
       knowingly possessed or disposed of a stolen motor vehicle;



       3 Alteration   in original.


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No. 76169-2-1/6

             (2) That the defendant acted with knowledge that the motor vehicle
       had been stolen;

            (3) That the defendant withheld or appropriated the motor vehicle to
      the use of someone other than the true owner or person entitled thereto.

       Citing State v. Callahan, 77 Wn.2d 27, 29, 459 P.2d 400 (1969), Connors argues

the State showed only a momentary, passing control over the motorcycle. In Callahan,

officers found drugs in the houseboat where the defendant was staying. Callahan, 77

Wn.2d at 28. The officers did not find drugs on the defendant's person but the

defendant admitted he had handled the drugs earlier that day. Callahan, 77 Wn.2d at

28-29. The court concluded the admission did not show actual possession because

"possession entails actual control, not a passing control which is only a momentary

handling." Callahan, 77 Wn.2d at 29.

       Here, unlike in Callahan, the unrebutted evidence establishes actual possession.

Both Brian and Jennifer saw Connors with a motorcycle helmet standing next to the

motorcycle. Connors told Brian the motorcycle belonged to him. After Brian told

Connors to leave, Connors pushed the motorcycle 15 to 20 feet to the neighbor's

property. Connors first asked Brian and then asked Jennifer for tools or help to jump-

start the motorcycle. When Deputy Devries arrived, Connors was on the Desotells'

porch and the motorcycle was where Connors had left it, in front of a neighbor's house.

Drawing all reasonable inferences in favor of the State, the evidence shows Connors

had physical custody and actual control over the motorcycle both before and after he

arrived at the Desotells' mobile home.

       Under RCW 9A.56.068(1) and .140(1), the State must prove beyond a

reasonable doubt that Connors knowingly possessed a stolen motor vehicle. A person



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No. 76169-2-1/7

"acts knowingly" when he or she is "aware of a fact" or "has information which would

lead a reasonable person in the same situation to believe that facts [described by a

statute defining the offense] exist." RCW 9A.08.010(1)(b)(i), (ii).

       Connors asserts insufficient evidence demonstrates he knew the motorcycle had

been stolen. We disagree. The evidence showed Connors knew the motorcycle was

stolen. When Deputy Devries took Connors into custody, Connors did not have a key to

the motorcycle and told the police to "throw away" the motorcycle helmet. Officer

Willson testified the wires near the front of the gas tank appeared to have been

"stripped." Jennifer testified the motorcycle had been hot-wired. Jennifer found the

registration for the motorcycle easily accessible underneath the seat. The registration

showed the motorcycle belonged to Williams. Williams did not give Connors or anyone

else permission to use the motorcycle. The reasonable inference from the evidence is

that Connors knew the motorcycle had been stolen.

       Drawing all inferences in the light most favorable to the State, the evidence

shows Connors knowingly possessed a stolen motorcycle. Sufficient evidence supports

the conviction of possession of a stolen motor vehicle. We affirm the conviction.




WE CONCUR:




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