                                                                             FILED 

                                                                           OCT 17,2013 

                                                                   In the Office of the Clerk of Court 

                                                                 W A State Court of Appeals, Division III 





            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                               DIVISION THREE 


STATE OF WASHINGTON,                          )
                                              )         No.30848-1-III
                     Respondent,              )
                                              )
       v.                                     )
                                              )
BRIAN CARL BRAGG,                             )         UNPUBLISHED OPINION
                                              )
                     Appellant.               )

       KORSMO, C.J.      Brian Bragg challenges his conviction for possession of a stolen

motor vehicle, arguing that the jury improperly heard hearsay evidence, received a faulty

instruction, and lacked sufficient evidence to return its verdict. We affirm.

                                          FACTS

       On November 4,2011, a Toyota 4Runner was stolen from a Moses Lake car

dealership. The vehicle was eventually located on land belonging to Michael Bohn. Mr.

Bragg lived on Mr. Bohn's property in a trailer he kept there.

      The police obtained a search warrant and went to the property. Mr. Bohn

answered the door and the officer read him the search warrant, which contained a

description ofthe 4Runner. Immediately thereafter, Mr. Bohn pointed to the backyard
No.30848-I-II1
State v. Bragg


and stated, "the white Toyota 4Runner back there belongs to Brian Bragg." The officer

noted that Mr. Bohn appeared both surprised to see the officer serving the warrant and

excited when Mr. Bohn made the subsequent statement: his eyes widened, gestures were

animated, and he pointed forcefully. His voice also raised and changed pitch.

       The officer discovered the stolen 4Runner parked among other vehicles belonging

to Mr. Bragg. It was covered by a tarp and car cover, and parked about 90 to 120 feet

from Mr. Bragg's fifth wheel trailer. The officer arrested Mr. Bragg. The prosecutor

later charged one count of possession of a stolen motor vehicle.

       At trial, Mr. Bohn testified to a conversation in which Mr. Bragg told Mr. Bohn

that Matt Lowe stole the 4Runner and that Mr. Bragg traded his Ford Bronco to Mr.

Lowe for the stolen 4Runner. Mr. Bohn also testified that Bragg's Bronco was gone the

day Mr. Bohn first noticed the 4Runner on his property. On cross-examination, defense

counsel questioned Mr. Bohn about why he did not include the contents of this

conversation in his original statement to the police.

       Subsequently, the warrant-serving officer testified about his encounter with Mr.

Bohn, including Mr. Bohn's statement that the 4Runner belonged to Mr. Bragg. The trial

court allowed the testimony under the excited utterance exception to the hearsay rule.

Defense counsel in cross-examination elicited that Mr. Bohn previously had been arrested

and served with search warrants.

       Other witnesses testified that Mr. Bragg had expressed interest in the 4Runner

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before it was found stolen from the dealership. The defense presented no witnesses. The

trial court instructed the jury on constructive possession, but refused, over defense

exception, to include the word "immediate" in the definition of dominion and control.

The jury found Mr. Bragg guilty of possession of a stolen motor vehicle. He timely

appealed.

                                        ANALYSIS

       Mr. Bragg raises three arguments on appeal: (1) the trial court abused its discretion

when it admitted hearsay testimony under the excited utterance exception, (2) the trial

court erred by refusing to include the word "immediate" in the constructive possession

instruction, and (3) there was insufficient evidence of dominion and control to find Mr.

Bragg guilty of possession ofa stolen motor vehicle. We address each argument in tum.

       Hearsay Testimony

       Hearsay is any out of court statement offered to prove the truth of the matter

asserted. ER 801(c). Generally, hearsay is not admissible. ER 802. However, an

excited utterance is admissible because it is "believed to be a 'spontaneous and sincere

response to the actual sensations and perceptions already produced by [an] external

shock.'" State v. Chapin, 118 Wn.2d 681, 686, 826 P .2d 194 ( 1992) (quoting 6 J.

Wigmore, Evidence § 1747, at 195 (1976)). An excited utterance has three requirements:

(1) a startling event or condition occurred, (2) the declarant made a statement that relates .

to the startling event, and (3) the declarant made the statement while still under the stress

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No.30848-l-II1
State v. Bragg


of excitement caused by the event. ER 803(a)(2); State v. Young, 160 Wn.2d 799,806,

161 P.3d 967 (2007).

       Mr. Bragg contends that the serving of a search warrant was not a sufficiently

startling event to trigger the excited utterance exception. We find that the trial court did

not abuse its discretion by admitting the statement as an excited utterance and, at worst,

the admission was harmless error.1

       The admission of evidence under a hearsay exception is reviewed for abuse of

discretion. Young, 160 Wn.2d at 806. The trial court abuses its discretion when it

exercises discretion on untenable grounds or for untenable reasons. State ex re!. Carroll

v. Junker, 79 Wn.2d 12, 26, 482 P .2d 775 (1971). Admission of an excited utterance

"requires three preliminary factual findings" concerning the three foundational elements

ofthe exception. State v. Williamson, 100 Wn. App. 248, 258, 996 P.2d 1097 (2000).

Substantial evidence must support the factual findings. State v. Bache, 146 Wn. App.

897,903, 193 P.3d 198 (2008).



        1 We also note that the statement also likely would have been admissible under the
"prior consistent statement" hearsay exception. This exception allows a statement that
would otherwise be hearsay if it is offered to rebut an express or implied charge against
the declarant of recent fabrication or improper motive. ER 801 (d)(1 )(ii); State v. Makela,
66 Wn. App. 164, 168, 831 P.2d 1109 (1992). By questioning Mr. Bohn about why the
content of his conversation with Mr. Bragg was not included in Mr. Bohn's original
statement to the police, defense counsel implicitly alleged that Mr. Bohn subsequently
made up the fact that the 4Runner belonged to Mr. Bragg. Mr. Bohn's statement to the
officer about the 4Runner was thus admissible to rehabilitate his testimony.

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State v. Bragg


       Whether an event is sufficiently startling is determined by its "effect on the

declarant." Chapin, 118 Wn.2d at 687. The officer who served the search warrant

testified that Mr. Bohn appeared surprised after opening the door and seeing the officer.

After the search warrant was read, Mr. Bohn's eyes widened, his gestures were animated,

and his voice changed pitch. These facts support the court's conclusion that the event

startled Mr. Bragg.

       Mr. Bragg argues that Mr. Bohn could not have been startled by the event because

of his previous experience being arrested and served with search warrants. He relies on

Chapin, where our Supreme Court refused to admit evidence under the excited utterance

exception because a sexual assault victim could not have been startled by seeing the

alleged perpetrator, whom she had seen three times earlier that same day. Chapin, 118

Wn.2d at 689. Because the victim saw the perpetrator so frequently, he had become "a

normal part of [the victim's] life," and thus seeing him could not be startling. Id. at 691.

Here, however, there was no indication or allegation that Mr. Bohn encountered the

police or had search warrants executed on him that frequently.

       Mr. Bragg also contends that Bohn's statement was improperly admitted as an

excited utterance because it is a statement of self-interest, thereby contradicting the

general principle of excited utterances. See State v. Brown, 127 Wn.2d 749, 758, 903

P.2d 459 (1995) (stating an excited utterance is a "spontaneous and sincere response" and

not based on "reflection or self-interest"). All that is necessary for the excited utterance

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No.30848-I-II1
State v. Bragg


exception are the three requirements noted above. See ER 803(a)(2). Mr. Bragg's

argument was a factual consideration for the trial court to weigh against the officer's

description of Mr. Bohn's excited state. It did not render the officer's observations

inadmissible as a matter of law.

       Even if the court abused its discretion by admitting the statement, the error was

harmless. Nonconstitutional error is harmless if, within reasonable probability, it did not

affect the verdict. State v. Zwicker, lOS Wn.2d 228,243,713 P.2d 1101 (1986). Mr.

Bohn testified to the same content during direct examination, the 4Runner was found

among other vehicles Mr. Bragg owned, and there was other testimony indicating Mr.

Bragg's prior interest in that particular 4Runner. We do not believe it is reasonably

probable that a different verdict would have resulted if the trial court had excluded the

excited utterance.

       For all ofthese reasons, there was no prejudicial error.

       Jury Instruction

       Mr. Bragg challenges the trial court's jury instruction on constructive possession

for failing to include the word "immediate" in the definition of dominion and control.

We find no error.

       The trial court took jury instruction 10 largely from the pattern instruction for

constructive possession of a controlled substance, Washington Pattern Jury Instructions

50.03. Mr. Bragg does not challenge the use of this jury instruction in the stolen vehicle

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No. 30848-1-111
State v. Bragg


context and takes exception only to the omitted word. The relevant portion of the jury

instruction (with the omitted word in brackets) reads as follows:

              In deciding whether the defendant had dominion and control over a
       vehicle, you are to consider all the relevant circumstances in the case.
       Factors that you may consider, among others, include whether the
       defendant had the [immediate] ability to take actual possession of the
       vehicle, whether the defendant had the capacity to exclude others from
       possession of the vehicle, and whether the defendant had dominion and
       control over the premises where the vehicle was located. No single one of
       these factors necessarily controls your decision.

Clerk's Papers at 88.

       The trial court considered Mr. Bragg's argument and concluded that the word

"immediate" is applicable only in deadly weapon cases and not in possession of stolen

vehicle cases. We review a trial court's legal determinations regarding jury instructions

de novo. State v. Lucky, 128 Wn.2d 727, 731, 912 P.2d 483 (1996), overruled on other

grounds by State v. Berlin, 133 Wn.2d 541, 947 P.2d 700 (1997). Jury instructions are

sufficient as long as they permit each party to argue his or her theory of the case, are not

misleading, and when read as a whole properly inform the jury of the applicable law.

State v. Howell, 119 Wn. App. 644, 649, 79 P.3d 451 (2003). We agree with the trial

court that the word "immediate" is not required and find that the court properly instructed

the jury on the totality ofthe circumstances test for dominion and control.

       The crime of possession of a stolen motor vehicle requires an individual to have

knowingly received, retained, possessed, concealed, or disposed of a stolen motor


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No. 30848-1-III
State v. Bragg


vehicle. RCW 9A.56.068, .140. Possession can be either actual or constructive. State v.

Lakotiy, 151 Wn. App. 699, 714, 214 P.3d 181 (2009). Constructive possession means

that the goods were not in actual, physical possession, but the defendant had dominion

and control over them. Id.

       Mr. Bragg notes that the pivotal case for constructive possession of a stolen

vehicle uses the word "immediately" when defining dominion and control. Lakotiy, 151

Wn. App. at 714 ('" Dominion and control means that the object may be reduced to actual

possession immediately."') (quoting State v. Jones, 146 Wn.2d 328, 333, 45 P.3d 1062

(2002)). For two reasons, the Lakotiy language does not persuade us that the word

"immediate" is required in the jury instruction in this case.

       First, Lakotiy was quoting Jones, which is a search and seizure case, not a jury

instruction case. Jones itself was merely quoting the standard from a discussion about

deadly weapon enhancements in State v. Simonson, 91 Wn. App. 874, 881, 960 P.2d 955

(1988). Jones, 146 Wn.2d at 333. In Simonson the court noted that more than dominion

and control is needed to find that a person is "armed" with a deadly weapon-there also

must be evidence of ready availability for use. 2 Simonson, 91 Wn. App. at 882. As in

Jones, Simonson was not discussing jury instructions.


       2Division One has considered whether some variation of "immediately" is
required in unlawful possession of a firearm instructions. See Howell, 119 Wn. App. at
649. The court found that the immediacy element is not required for the jury instruction
because the statute does not require the ability to take immediate possession. Id. at 650.

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No. 30848-1-III
State v. Bragg


       Second, Lakotiy went on to apply the proper "totality of the circumstances" test for

determining dominion and control. Lakotiy, 151 Wn. App. at 714. Outside of the deadly

weapon context, which requires proof of "readily available for use" in addition to

possession of the deadly weapon, our Supreme Court has used the totality of the

circumstances test in determining dominion and control. See, e.g., State v. Partin, 88

Wn.2d 899, 906, 567 P.2d 1136 (1977) ("we will look to the totality of the situation to

determine ... dominion and control"), overruled on other grounds by State v. Lyons, 174

Wn.2d 354,275 P.3d 314 (2012).

       Lakotiy did not create an immediacy requirement for dominion and control in

possession cases, let alone do so in conflict with Partin. Here, the trial court properly

instructed the jury on the totality of the circumstances test for dominion and control.

There was no error.

       Sufficiency ofthe Evidence

       Mr. Bragg claims that there was insufficient evidence of dominion and control to

support a conviction for possession of a stolen motor vehicle. Again, we disagree.

       Evidence is sufficient to support a verdict if the trier of fact has a factual basis for

finding each element proved beyond a reasonable doubt. State v. Green, 94 Wn.2d 216,

221-22,616 P.2d 628 (1980). We review the evidence in a light most favorable to the

prosecution. Id. at 221.

       As noted previously, possession can be either actual or constructive. Lakotiy, 151

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State v. Bragg


Wn. App. at 714. Constructive possession does not require that the goods be in actual

physical control, but merely that the defendant has dominion and control over them. Id.

In determining dominion and control, the totality of the circumstances is considered,

including the "proximity of the property" and the "ownership of the premises where the

contraband was found." Id. While physical proximity alone is insufficient, "proximity

coupled with other circumstances from which the trier of fact can infer dominion and

control is sufficient to show constructive possession." State v. Chavez, 138 Wn. App. 29,

35, 156 PJd 246 (2007).

       There was more than mere proximity here. The 4Runner was found among Mr.

Bragg's other vehicles, 90 to 120 feet from where Mr. Bragg lived in his trailer, and Mr.

Bohn testified that Mr. Bragg admitted to trading his Bronco for the stolen 4Runner. He

also had expressed an interest in acquiring the vehicle before it joined his collection.

There was more than mere proximity supporting the jury's dominion and control finding.

Thus, the evidence was sufficient to support the jury's decision.

       Affirmed.




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No. 30848-1-111
State v. Bragg


      A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.



                                                        orsmo, C.J.

WE CONCUR:




      Brown, J.




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