                                                                                                  ILC[ t
                                                                                        COUFT OF APPEALS
                                                                                               w`lslo j 11
                                                                                      2013 DEC 10 AN g: 54

                                                                                                  VIIAsNNGTUr4

                                                                                                   U AY



    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                              DIVISION II


STATE OF WASHINGTON,


                                 Respondent,                             No. 43386 -9 -II


          V.



COLIN MITCHELL McCURDY,                                         UNPUBLISHED OPINION


                                 Appellant.




          MAXA, J. —   Colin McCurdy appeals his convictions of first degree unlawful possession of

a firearm (2 counts) and unlawful possession of more than 40 grams of marijuana. He claims


that the trial court abused its discretion in finding him competent to stand trial and that the State

failed to prove that he possessed the firearms and marijuana. Finding no such errors, we affirm.

                                                 FACTS


          Deborah Bays    rented out a room   in her Sequim home for 30 days in March 2011.          The


renter, who identified himself as Miles Twitter, paid her $ 425 in cash. On March 29, Bays


received a phone call concerning Twitter. Because she had not seen him since March 21, Bays

went into his room to gather his belongings. While doing so, she found 10 to 15 garbage bags of

marijuana. She called the police, who obtained a search warrant. While executing the warrant,

officers seized 60 pounds of marijuana packed in one pound bags. They also seized shotgun

shells,   two   rifles, ammunition, and some personal papers   bearing   the   name   Colin   McCurdy.
No. 43386 -9 -II



       An officer showed Bays a photograph of McCurdy they had discovered during the search.

Bays identified the person in the photograph as Twitter. Bays later explained that only she, her

landlord, and Twitter had a key to her house, and no other person had access to Twitter' s

bedroom. The State subsequently charged McCurdy with two counts of first degree unlawful

possession of a firearm and one count of unlawful possession of more than 40 grams of

marijuana.




        Before trial, defense counsel requested and the trial court ordered a competency

evaluation. Carl Redick, a Western State Hospital licensed psychologist, performed the


evaluation. He concluded that McCurdy did not have the capacity to assist in his defense, but

recommended that trial counsel attempt to work with him. Redick indicated that if McCurdy and

counsel could not work together, this inability was an indication of McCurdy' s incompetence.

The trial court found that this evaluation was ambiguous. McCurdy repeatedly argued that he

was competent to stand trial.


        During     a   competency       hearing,   the trial   court explained      that   based    on   the   evaluation, "   it


seems pretty clear to me that Mr. McCurdy understands the nature of the proceedings. I -hink
                                                                                       t

the only issue really     was whether       he   could   effectively     assist   his   counsel."   Report of Proceedings


 RP) ( Mar. 7, 2012)      at   3.   The trial   court   then   asked   defense    counsel, "   Have you found him to be


uncooperative    in his ability to       address   the   defenses      and so on ?"     RP ( Mar. 7, 2012) at 4. Defense


counsel responded:




         W] ell, he     and    I have   not reviewed potential          defenses....      But as far as the overall
        relationship, it' s pretty good. I met with him yesterday, we didn' t have any
        problems, but I' ll certainly defer to my client to -- for him to articulate his
        position on that since everything seems to reflect that he' s capable of doing that.




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No. 43386 -9 -II



RP ( Mar. 7, 2012) at 4. When the trial court asked McCurdy if he could work with defense

counsel, McCurdy responded:

         I certainly do.I welcome the opportunity with open arms, the same open arms I
         welcomed [ prior defense counsel]. And I pray for the mutual commitment to do
         an earnest, honest, productive and amicable civil relationship between us and I
         believe that there'      s --   I believe that will be the case.


RP ( Mar. 7, 2012) at 7. The trial court then found McCurdy competent to stand trial.

         At this same hearing, McCurdy directly addressed the court, explaining his frustration

with prior counsel because of her insistence that he have a competency evaluation. He explained

that her insistence resulted in several delays and placed him at risk of being housed in a mental

institution and forced to take psychotropic drugs. He described her as a " venomous serpent that

was    frivolously trying    to   corral me      into   either prison or an   insane   asylum."   RP ( Mar. 7, 2012) at


8. After the trial court explained to McCurdy that he was not going to the hospital but would

remain    for trial,   McCurdy     responded, "         And I thank God every day, and by the grace of God and

only by the grace of God have I been able to emerge from the putrid situation that I was cast into
with [ prior   defense   counsel]."        RP ( Mar. 7, 2012) at 18. The trial court then told McCurdy to put

that   situation   behind   and   focus    on   trial, to   which   McCurdy   responded, "   I certainly look forward

to   doing that." RP ( Mar. 7, 2012) at 18.

          On the first day of trial, the trial court had several colloquies with McCurdy. McCurdy

asked for clarification on whether a muzzle -
                                            loader or black powder rifle was a firearm under the

firearms    statute.'   He expressed concerns about his speedy trial rights being violated as a result

of his competency evaluation. He wanted clarification on whether the search of his residence

exceeded the scope of the warrant. He expressed his concern that defense counsel simply did not




  Apparently it is not under federal law.
                                                                    3
No. 43386 -9 -II



care about interviewing witnesses and investigating his case. He believed that the trial court had

demonstrated bias in a prior hearing and asked the court to recuse itself.

        After these discussions, the prosecutor again asked the court to consider whether


McCurdy was competent to assist counsel. After defense counsel explained that he and

McCurdy had discussed some viable and non -viable defenses, the trial court explained that trial

would continue:




          But, number 1, Mr. McCurdy has from day 1 been adamant that he understands
         what's going on and that he' s competent to assist his counsel in the case, he just
         disagrees with most of what his counsel tells him.
           Secondly,    we    had   a   competency determination.           That is the rule of this case at
         this point.
           Third, it is   not --    only not unusual but it is actually common for defendants to
         have no concept of what's important in their case and what isn't. And that I think
         is the problem that we are laboring under with Mr. McCurdy.

RP ( Mar. 7, 2012) at 46 -47.


         Bays then testified about the events in her home and identified McCurdy as the man who

rented from her under the name Miles Twitter. After the jury was excused for the day, McCurdy

asked the trial court why the landlord had not testified, believing that he was an essential witness.

The trial court explained that each side could call its own witnesses and that Bays had testified


that McCurdy was the only other occupant of the residence during the 30 -day tenancy. McCurdy

then   pleaded with    the   prosecutor   to   call   the   landlord " in the   name of justice."   RP ( Apr. 11,


2012) at 119.


         On the second day of trial, after the defense rested without calling any witnesses,

McCurdy expressed his frustration with not having a defense. The trial court then had an

extensive colloquy with McCurdy about his desire to represent himself during closing

arguments.    McCurdy was           frustrated that defense       counsel   did   not present witnesses on   his behalf,
No. 43386 -9 -II



explaining that he   was " sent out   to battle   without a weapon or a shield."     RP ( Apr. 12, 2012) at


43. McCurdy eventually relented and agreed to allow defense counsel to finish out the trial.

         The jury found McCurdy guilty. During sentencing, the trial court commented on

McCurdy' s competence:

         Well, the other reason was we did have the competency issue raised before we
         went to trial, I was concerned about that. And throughout the trial I was trying to
         gauge or monitor your          competency. And in every case the discussions
                                     level   of

         that you and I had convinced me that you were tracking very well with what was
         going on, you understood the issues very clearly, and you were fully capable of
         assisting your attorney in defending the case. Had I felt otherwise, we wouldn't
         have completed the [ trial]. That doesn't mean you don't have issues that have to
         be dealt   with,   but clearly   you were competent as       the law   defines it. Better than
         competent in comparison to other people similarly situated.

RP ( Apr. 25, 2012) at 42. McCurdy appeals.

                                                    ANALYSIS


A.       COMPETENCY TO STAND TRIAL


         McCurdy first contends that the trial court erred in finding that he had the ability to

understand the nature of the proceedings against him and was able to assist in his defense.


McCurdy further argues that the trial court had an obligation to hold a second competency

hearing because of his conduct during the first day of trial. We disagree.

         In Washington "[ n] o incompetent person shall be tried, convicted, or sentenced for the


commission of an offense so        long   as such   incapacity   continues."   RCW 10. 77. 050.


 Incompetency" exists where a person " lacks the capacity to understand the nature of the

proceedings against him or her or to assist in his or her own defense as a result of mental disease

or   defect." RCW 10. 77. 010( 15).       Where there is reason to doubt a defendant's competency, the

trial court must appoint an expert to evaluate the defendant and report its evaluation to the court.

RCW 10. 77. 060( 1)(    a).
No.. 43386 -9 -II



          We review a trial court' s determination of a defendant' s competency to stand trial under

an abuse of discretion standard. State v. Sisouvanh, 175 Wn.2d 607, 621 -22, 290 P. 3d 942

 2012). Under this       standard, we will          find   error   only   when    the trial   court' s   decision "( 1) adopts a


view    that   no reasonable person would            take and      is thus ` manifestly       unreasonable,' (   2) rests on


facts   unsupported    in the   record and        is thus based     on ` untenable grounds,'         or ( 3) was reached by

                                                     is thus   made ` for untenable reasons.' "              Sisouvanh, 175
applying the wrong legal         standard and




Wn.2d     at   623 ( quoting State     v.   Blackwell, 120 Wn.2d 822, 830, 845 P. 2d 1017 ( 1993)). When a


competency evaluation is involved, the trial court has discretion to accept or reject that

evaluation. Sisouvanh, 175 Wn.2d at 623.


          McCurdy relies        on   State   v.   Swain, 93 Wn.         App. 1,   968 P. 2d 412 ( 1998). In Swain, the


trial court found Swain incompetent to stand trial because the expert testified that Swain' s illness

prevented him from understanding the proceedings or assisting in his defense. 93 Wn. App. at 9.

Swain' s incoherent, rambling testimony supported that conclusion. Swain, 93 Wn. App. at 9. .

His testimony also demonstrated that he did not understand the trial proceedings, the judge' s

role, or what the attorneys were thereto do. Swain, 93 Wn. App. at 5 -6 While he demonstrated

some minimal understanding of the proceedings and at times was able to assist, the appellate

court found no abuse of discretion. Swain, 93 Wn. App. at 9 -10.

          Here, the expert opinion was more ambivalent, informing the court that McCurdy' s

illness manifested itself in such a way as to potentially prevent him from assisting in his own

defense. The trial court engaged in extensive colloquies with McCurdy and newly- appointed

defense counsel assured the court that he and McCurdy were working together well. And

McCurdy confirmed this. Further, those colloquies demonstrated McCurdy' s understanding of

trial procedures and legal concepts. Based on his discussions with McCurdy, the trial court

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No. 43386- 9- 11



concluded    that   McCurdy          was "[   b] etter than competent in comparison to other people similarly

situated." RP ( Apr. 25, 2012) at 42. Under these circumstances, we find no abuse of discretion.

The trial   court   did   not ( 1)   adopt a view    that   no reasonable person would   take, ( 2) rest its decision



on facts the record did not support, or (3) apply the wrong legal standard. Sisouvanh, 175 Wn.2d

at 623.


          In addition, while the prosecutor expressed his concern during the first day of trial that

the trial court may wish to revisit the competency issue, the record does not demonstrate that the

trial court abused its discretion in not doing so. The trial court observed that the problem was

McCurdy' s unwillingness to heed his attorney' s advice. McCurdy was frustrated with defense

counsel' s failure to pursue certain defenses, interview certain witnesses, and test physical


evidence. But his complaints in this regard reflect a disagreement regarding trial strategy, not

McCurdy' s incompetency. We find no abuse of discretion in the trial court' s decision not to

reevaluate McCurdy' s competency during the trial.

B.        CONSTRUCTIVE POSSESSION


          McCurdy argues that the State failed to prove the possessory element of the firearms and

marijuana charges. He argues that at most he was merely a transient occupant at Bays' s home

and therefore the State' s evidence was insufficient.


          Evidence is sufficient to support a conviction if after viewing the evidence and all

reasonable inferences from it in a light most favorable to the State, a rational trier of fact could

find each element of the crime proved beyond a reasonable doubt. State v. Homan, 172 Wn.


App.   488, 490 -91, 290 P. 3d 1041 ( 2012),            review      denied, 177 Wn.2d 1022 ( 2013). We defer to


the trier of fact on issues of conflicting testimony, witness credibility, and persuasiveness of the

evidence. State v. Thomas, 150 Wn.2d 821, 874 -75, 83 P. 3d 970 ( 2004).

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No. 43386 -9 -II



           Possession may be actual or constructive. State v. Jones, 146 Wn.2d 328, 333, 45 P. 3d

1062 ( 2002).          A person has actual possession when he or she has physical custody of the item

and constructive possession when he or she has dominion and control over the item. Jones, 146

Wn.2d      at   333.    Whether a person had dominion and control over an item depends on the totality

of   the   circumstances.        State   v.   Jeffrey,   77 Wn.   App.   222, 227, 889 P. 2d 956 ( 1995).    And a


person' s dominion and control over a premises allows the trier of fact to infer that the person has

dominion and control over items in the premises. State v. Shumaker, 142 Wn. App. 330, 333,

174 P. 3d 1214 ( 2007) ( dominion                and control of premises is one factor indicating constructive

possession);       State   v.   Contabrana, 83 Wn.          App.   204, 208, 921 P. 2d 572 ( 1996) ( showing


dominion and control raises rebuttable presumption of constructive possession).


            The question here is whether McCurdy had dominion and control over the premises. We

hold that the evidence was sufficient to prove that he did, and therefore that he had possession of

the contents. Bays testified that she rented the room to Miles Twitter for the month of March

2011 for $425, and that no other person had been in the house for the entire month. She also

testified that besides she and the landlord, only Twitter had a key to the residence. And she

identified McCurdy in open court as her renter. Further, police officers found signs of current

occupancy in the bedroom: including bedding, clothing, boxes, and a large tool box containing

McCurdy' s personal effects and firearms. The officers recovered tax and banking information,

business letters, personal letters addressed to and written by McCurdy, pay stubs,. travel

documents, personal identification documents, and school work. This evidence is sufficient to

 show that McCurdy had dominion and control over the room he rented. See State v. Tadeo-

Mares, 86 Wn.            App.    813, 816, 939 P. 2d 220 ( 1997) ( defendant had constructive possession of


the   premises where            he leased the     apartment, shared      the   rent, and resided   there).
No. 43386 -9 -II



        McCurdy argues that there was less evidence here than in State v. Alvarez, 105 Wn. App.

215, 222, 19 P. 3d 485 ( 2001).         There, the police discovered a handgun during a search for drugs.

at a teenage hangout apartment. Alvarez, 105 Wn. App. at 217. They also discovered some of

Alvarez's personal property in the same room as the handgun. Alvarez, 105 Wn. App. at 218.

But because the evidence did not show that Alvarez had dominion and control of that room, the


reviewing court held that the State had failed to show constructive possession and it reversed

Alvarez' s   conviction.   Alvarez, 105 Wn.           App.   at   223. We agree that the mere presence of


personal possessions on the premises is not enough to show dominion and control. State v.

Partin, 88 Wn.2d 899, 906, 567 P. 2d 1136 ( 1977).                   But here, unlike in Alvarez, there was


evidence that McCurdy had dominion and control over the room.

         Similarly, in   State   v.   Spruell,   a   defendant    was   found in   a   house containing drugs. 57 Wn.


App.   383, 387 -88, 788 P. 2d 21 ( 1990).            The reviewing court determined the defendant did not

have dominion and control of the drugs because no evidence connected the defendant to either

the house or the cocaine. Spruell, 57 Wn. App. at 388. As in Alvarez, the State failed to show

dominion and control of the premises. Here, there was sufficient evidence that McCurdy had

dominion and control over the room.


         The State produced sufficient evidence that McCurdy had dominion and control of the

room he rented, which was sufficient to attribute ownership of the room' s contents, i:e., the

marijuana and     firearms, to him.       McCurdy' s      sufficiency     claim    fails.
No. 433 86 -9 -II


        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.




                                                                                 1
                                                    MAXA, J.




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