                                                                                  2 {11=- 1   frAl   13 '              00
                                                                                  S. y   k.                 11':'.
                                                                                                tlVJ-                r' iM


                                                    DE t
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II

 STATE OF WASHINGTON,                                              No. 45757 -1 - II


                               Respondent,


        v.




 LANE J. SMITH,                                              UNPUBLISHED OPINION


                               Appellant.


       WORSWICK, P. J. —   Lane J. Smith was convicted of second degree possession of stolen


property' following a bench trial. Smith appeals his conviction arguing that the State did not

present sufficient evidence to prove that he knowingly possessed or disposed of stolen property.

Because sufficient evidence supports the conviction, we affirm.


                                             FACTS


       Smith lived in a rental home with Teresa Dundom, Teresa' s daughter Teri Dundom,2 and

Teri' s boyfriend Jose Ayala. The rental home' s garage was locked with a padlock. Smith and

Teresa were the only two people with a key to the garage. The garage was considered off limits

to others in the home, and no one was allowed inside the garage except for Smith and Teresa.




1 See RCW 9A.56. 160.


2 For clarity, we refer to Teresa Dundom and Teri Dundom by their first names. We intend no
disrespect.
No. 45757 -1 - II



        On November 30, 2012, Smith received a text message from Robin Lavin, asking Smith

to help Lavin move a trailer. Smith agreed to help Lavin. Smith towed the trailer with his

pickup truck and stored the trailer in his garage.

        On December 1, 2012, Deputies Ryan Tully and Ronald Davis of the Pacific County

Sheriff' s Office executed a search warrant, based on an unrelated case, at Smith' s rental home.


Teresa was the only person home at the time the warrant was executed. When the police

searched the garage they noticed the trailer inside had a license plate that did not match the

trailer' s vehicle identification number. The license plate and the trailer were registered to two


different people. The police seized the trailer and the items contained inside it. While searching

the garage, the police also noticed and took pictures of several remote controlled model


airplanes. The police did not seize the airplanes. When Smith returned home on December 1, he

found a copy of the search warrant on his kitchen table with the list of items that were seized,

including the trailer.

        On December 3, the police returned to Smith' s residence to arrest him on an unrelated


outstanding warrant. On December 5, and after further investigation, the police contacted Bruce

Graham and verified that the contents of the trailer and the model airplanes had been stolen from

his residence while he was on vacation. The model airplanes were never recovered from Smith' s

garage or returned to Graham. The State charged Smith with first degree possession of stolen


property3 for possessing the contents of the trailer and second degree possession of stolen

property for possessing the model airplanes.




3See RCW 9A.56. 150.



                                                     2
No. 45757 -1 - II



         Smith waived his right to a jury trial. At the bench trial, Deputy Davis testified that when

he placed Smith under arrest for the warrant on December 3, Smith asked him " if that was all

that he [ was]   being    arrested     for." Report   of   Proceedings ( RP) ( Oct. 17, 2013) at 30. Davis read


Smith his Miranda4 rights and took him to the South Bend Police Department. At the police


department, Smith was again read his Miranda rights and initially agreed to talk to police.

         The South Bend Chief of Police, David Eastham, was present while Davis questioned


Smith   at   the police department. Davis         noticed    that Smith    appeared   to   be " very    nervous."   RP


 Oct. 17, 2013)     at   41.   Smith told Davis that he was the renter of the house and that the garage on

the property was off limits to the other people living with him. Additionally, Smith told Davis

that he was not the person who stole the items in the garage but that they were being stored there

and he would talk to Davis about how the items got there. Smith also told police that he wanted

to talk but he did       not want   to be known    as a " snitch."      RP ( Oct. 17, 2013)      at   43. Eastham


testified that he overheard Smith say he did not want to be known as a " snitch" and that he

 wasn'   t allowing      people   in   or out of the garage."       RP ( Aug. 13, 2013)    at   21.   Smith then changed


his mind and asked for an attorney, and at that point the questioning stopped. Davis testified that

based on this conversation, he believed Smith knew that the items in his garage were stolen.

         Davis also testified that, while at Smith' s residence on December 3, Teri had told him

that she saw Smith and Lavin use Smith' s truck to pull the trailer up to the garage. Teri also told

Davis that Smith said the garage was off limits after he and Lavin put the trailer in the garage.

Teri additionally told Davis that she had seen Smith remove items from the garage after the

police had seized the trailer on December 1.




4Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 ( 1966).


                                                                3
No. 45757 -1 - I1


        Smith testified that when he learned that the trailer had been seized by police, he became

 angry" because at that point he knew if the police seized it, it had to have been stolen. RP ( Oct.

17, 2013) at 84. Smith also testified that he did not want to give the police Lavin' s name


because he did      not want to     be known    as a " snitch."    RP ( Oct. 17, 2013)    at   91.   Graham testified


that the value of the      model airplanes was well over $ 750.           During its closing argument, the State

argued that though the trailer had been returned to Graham, the model airplanes had been


retained and disposed of by Smith.

        The trial court found Smith not guilty of first degree possession of stolen property, but

found Smith guilty of second degree possession of stolen property, regarding the model

airplanes. The trial court entered findings of fact and conclusions of law, including:

        9.          After execution of the search warrant, the defendant was aware that the
        items brought to the         residence were stolen:       this included the   model planes ....     The
        defendant indicated to law enforcement on December 3, 2012 that he did not want
        to be a snitch by revealing that Mr. Lavin was the source of the stolen property. At
        trial the defendant indicated that the knowledge that the items were stolen began
        upon seeing the warrant return.

        10.         After execution of the search warrant, the defendant retained possession and
        disposed      of   the   model airplanes.    He did these acts on or about December 1, 2012
        in Raymond, Washington.


        11.         The defendant did the acts described in paragraph 10 with the intention of
        depriving their true owner of his property.

        12.    The testimony of the State' s witnesses was credible. The testimony of both
        South Bend Police Chief Eastham and Deputy Ron Davis of the Pacific County
        Sheriff's Office that the defendant knew the items were stolen, that he was very
        nervous when contacted on December 3, 2012, that he knew his arrest was for more
        than a warrant before law enforcement indicated so, and revealing the source of the
        property      would make      him   a " snitch,"   as well as the testimony of Mr. Bruce Graham
        regarding the value of the stolen property were all particularly credible[.]

Suppl. CP     at   23 -24. Smith     appeals.
No. 45757 -1 - II


                                                        ANALYSIS


         Smith challenges the sufficiency of the State' s evidence supporting his conviction for

second degree possession of stolen property. Specifically, Smith argues that the State " proffered

insufficient evidence to prove that he knowingly possessed or disposed of stolen property or that

he   acted with     knowledge that the property         was stolen."     Br.   of   App.    at   11.   Smith also argues that


the evidence was insufficient to prove that he had exclusive dominion and control over the

garage after the police served the search warrant. Smith challenges the trial court' s findings of

fact that ( 1) Smith       was aware   the   model airplanes were stolen, ( 2)             Smith did not want to reveal


Lavin   as   the source of the     stolen    property, ( 3) Smith retained possession of the model airplanes


and disposed of them, and (4) Smith had the intent of depriving the owner of his property.

                                                I. STANDARD OF REVIEW


         When, as here, a trial court enters findings of facts and conclusions of law following a

bench trial, we determine whether substantial evidence supports the findings, and if so, whether

the findings support the conclusions of law. State v. Stevenson, 128 Wn. 'App. 179, 193, 114

P. 3d 699 ( 2005).         Substantial evidence is evidence sufficient to persuade a fair -minded, rational

person of     the   finding' s   truth. Stevenson, 128 Wn.        App.   at   193. We consider unchallenged


findings     of   fact   verities on appeal.   Stevenson, 128 Wn.        App.       at   193. We review conclusions of


law de novo. Stevenson, 128 Wn. App. at 193.

         A claim of insufficiency admits the truth of the State' s evidence and all reasonable

inferences drawn therefrom. State              v.   Salinas, 119 Wn.2d 192, 201, 829 P. 2d 1068 ( 1992). All


  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   201.   Circumstantial evidence and




                                                              5
No. 45757 -1 - II



direct evidence are deemed equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P. 2d 99

 1980).      We defer to the fact finder' s resolution of conflicting testimony, witness credibility, and

persuasiveness of the evidence. State v. O' Neal, 126 Wn. App. 395, 424, 109 P. 3d 429 ( 2005).

          To convict Smith of second degree unlawful possession of stolen property, the State had

to   prove   that Smith ( 1)   knowingly possessed   or   disposed   of stolen   property, ( 2) acted with


knowledge that the property had been        stolen, (   3) withheld or appropriated the property to the use

of someone other than the true owner, and ( 4) that the stolen property exceeded $ 750 in value.

RCW 9A. 56. 140( 1);       RCW 9A.56. 160( 1)( a).


                                            II. FINDINGS OF FACT


          Smith argues that insufficient evidence supports the trial court' s findings of fact. We

disagree. The trial court found the testimony of the State' s witnesses credible and that testimony

provides substantial evidence supporting the trial court' s findings of fact.

          Smith argues that the trial court failed to find that he had exclusive dominion and control

over the garage, and as such, someone else could have accessed the garage. The trial court' s


finding of fact 6 states that Smith did have dominion and control over the garage and there is

substantial evidence to support this finding. Deputy Davis testified ,that Smith said the garage

was off limits to the other people living with him. Chief Eastham also testified that Smith said

that he was not allowing people in or out of the garage. This testimony provides substantial

evidence sufficient to support the trial court' s finding that Smith had dominion and control over

the garage for the purpose of possession. And, contrary to Smith' s apparent assertion, dominion

and control does not need to be exclusive to support a finding of constructive possession. State




                                                          6
No. 45757 -1 - II



v.   Chavez, 138 Wn.      App. 29,     34- 35, 156 P. 3d 246 ( 2007) ( citing      State v. Weiss, 73 Wn.2d 372,

375, 438 P. 2d 610 ( 1968));      State v. Wood, 45 Wn. App. 299, 312, 725 P. 2d 435 ( 1986)).

         Smith argues the evidence was insufficient to prove that he knew the model airplanes


were   in the   garage.   Smith does not challenge the trial court' s finding that he did possess the

model airplanes     in his   garage on    December 1.      The police left the model airplanes in the garage

after seizing the trailer on December 1, and Davis testified that Teri told him Smith had gone into

the garage at that time. A reasonable inference can be made that Smith knew the model airplanes

were in the garage because he went inside the garage while the model airplanes were also inside.

         Smith challenges the trial court' s finding that he knew the model airplanes in the garage

were stolen. Davis testified that Smith indicated to him that Smith knew the items being stored

in his garage were stolen. Davis also testified that Smith told him that he was not the person

 who stole      the items   but they   were   being   stored   in his   garage."   RP ( Oct. 17, 2013) at 33.


Because the trial court found the testimony of Davis credible, particularly the testimony that

Smith knew the items in his garage were stolen, a reasonable inference can be made that Smith

knew that the model airplanes were stolen.


         Smith challenges the trial court' s finding that he retained possession and disposed of the

model airplanes after        December 1.      Again, Davis testified that he left the model airplanes in the


garage when the police seized the trailer. Davis also testified that Teri told him she saw Smith


removing items from the garage after the police seized the trailer. A reasonable inference can be

made that Smith retained possession of the model airplanes when the police left them in the

garage after seizing the trailer. A reasonable inference can also be made that Smith disposed of




                                                               7
No. 45757 -1 - II



the model airplanes when Teri saw him taking items out of the garage the same day the trailer

was seized.




        Smith also challenges the trial court' s finding that he knowingly possessed the model

airplanes with the intent to deprive the true owner of his property. As stated above, it can be

reasonably inferred that Smith retained possession of the model airplanes in the garage, that he

knew they were stolen, and that he disposed of them. In light of these inferences, it is also

reasonable to infer that Smith committed those acts with the intent to deprive the true owner of


his property.

                                         III. CONCLUSIONS OF LAW


        The findings of fact support the trial court' s conclusions of law that Smith ( 1) wrongfully

possessed and   disposed   of stolen   property, ( 2)   knew that property to be stolen, and ( 3) intended

to deprive the true owner of possession of that property.

        Finding of fact 10, supported by substantial evidence, states that Smith retained

possession and disposed of the model airplanes. This finding supports the conclusion that Smith

wrongfully possessed and disposed of stolen property. Findings of fact 9 and 12, supported by

substantial evidence, state that Smith was aware that the items brought to the garage were stolen,


including the model airplanes, and that the State' s testimony was credible, particularly the

testimony of Davis, stating that Smith knew the items were stolen. These findings support the

conclusion that Smith knew the model airplanes were stolen. Finding of fact 11, supported by

substantial evidence, states that Smith possessed and disposed of the model airplanes with the


intent of depriving their true owner of his property. This finding supports the conclusion that

 Smith intended to deprive the true     owner of   his property.
No. 45757 -1 - II



          Substantial evidence supports the trial court' s findings of fact and the findings of fact


support the conclusion that Smith is guilty of second degree possession of stolen property.

Therefore, sufficient evidence supports Smith' s conviction. Accordingly, 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.




                                                                         Worswick, P. J.

 We concur:




 Maxa, J.




Lee, J.




                                                     9
