                                                                                             Filed
                                                                                       Washington State
                                                                                       Court of Appeals
                                                                                        Division Two

                                                                                         May 3, 2016

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II
 STATE OF WASHINGTON,                                              No. 47020-9-II

                       Respondent,

        v.

 JAMIE A. HESLEN,                                              UNPUBLISHED OPINION

                       Appellant.


       SUTTON, J. — Jamie A. Heslen appeals her conviction for unlawful possession of a

controlled substance (methamphetamine) and the imposition of a community custody provision.

We hold that the State provided sufficient evidence to show that Heslen had actual or constructive

possession of methamphetamine and the trial court did not err when it imposed a community

custody condition prohibiting her from possessing or consuming marijuana. Accordingly, we

affirm Heslen’s conviction and sentence.

                                             FACTS

       On January 17, 2014, Officer Garrett Spencer stopped a pickup truck and arrested the

driver. During a search incident to arrest, he found a small baggie of suspected methamphetamine

in the driver’s pocket. Heslen was a passenger in the truck.

       Officer Spencer contacted Deputy Ryan Tully, who advised that he had probable cause to

arrest Heslen for delivery of a controlled substance. Officer Spencer arrested Heslen and read her
No. 47020-9-II


Miranda1 warnings. Deputy Tully arrived at the scene and spoke with Heslen. Heslen told Deputy

Tully that the backpack in the passenger seat belonged to her and that there was “possibly some

marijuana in it.” Verbatim Report of Proceedings (Aug. 6, 2014) at 32.

         The following morning Deputy Tully, Officer Spencer, and Lieutenant Jim Bergstrom

executed the search warrant for the truck. While searching the truck, Lieutenant Bergstrom located

the only backpack found in the truck and found three cards that he believed to be health cards with

Heslen’s name on them. Deputy Tully assisted in searching the backpack and located a pipe

containing methamphetamine within a pouch inside the backpack.

         After a bench trial, the trial court found Heslen guilty of unlawful possession of a controlled

substance (methamphetamine). At sentencing, the trial court found that Heslen had a chemical

dependency that contributed to the offense unlawful possession of a controlled substance

(methamphetamine), ordered her to submit to a drug evaluation, ordered her to comply with

recommended services and treatment, and prohibited her from possessing or consuming marijuana

during her community custody term. Heslen appeals her conviction and the community custody

prohibition related to possessing or consuming marijuana.

                                              ANALYSIS

                      I. UNLAWFUL POSSESSION OF A CONTROLLED SUBSTANCE

         Heslen argues that the State did not show that she physically controlled a backpack, pipe,

or methamphetamine at the time of her arrest or that she had constructive possession of the

methamphetamine. We disagree.




1
    Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).


                                                   2
No. 47020-9-II


       The test for determining the sufficiency of the evidence is whether, after viewing the

evidence in the light most favorable to the State, any rational trier of fact could have found guilt

beyond a reasonable doubt. State v. Berg 181 Wn.2d 857, 867, 337 P.3d 310 (2014). A claim of

insufficiency admits the truth of the State’s evidence, and all reasonable inferences from the

evidence must be drawn in favor of the State and interpreted most strongly against the defendant.

State v. Andy, 182 Wn.2d 294, 303, 340 P.3d 840 (2014). We defer to the trier of fact on issues of

conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. Andy, 182

Wn.2d at 303.

       Possession may be actual or constructive. State v. Chouinard, 169 Wn. App. 895, 899, 282

P.3d 117 (2012). Constructive possession is the exercise of dominion and control over an item.

State v. Davis, 182 Wn.2d 222, 227, 340 P.3d 820 (2014). Constructive possession is established

by viewing the totality of the circumstances, including the proximity of the property and ownership

of the premises where the contraband was found. Davis, 182 Wn.2d at 234. However, mere

proximity is insufficient to show dominion and control. Davis, 182 Wn.2d at 234.

       Here, by claiming insufficiency of the evidence, Heslen admits the State’s evidence that

the pipe containing methamphetamine was found within a pouch located in the backpack that she

admitted belonged to her. The totality of the circumstances provides substantial evidence for the

fact finder to reasonably infer that Helsen had constructive possession of the backpack and that

she possessed the pipe containing methamphetamine.             Accordingly, we affirm Helsen’s

conviction.




                                                 3
No. 47020-9-II


                               II. COMMUNITY CUSTODY CONDITION

        Heslen also argues that the trial court erred when it imposed a prohibition from possessing

or consuming marijuana while in community custody. We disagree.

A. RIPENESS

        The State argues that the matter is not ripe for review because marijuana is a federally

controlled substance and state law is preempted. We disagree.

        The claim is ripe if the issues raised are primarily legal, do not require further factual

development, and the challenged action is final. State v. Cates, 183 Wn.2d 531, 534, 354 P.3d 832

(2015). Here, the issue is primarily legal because Heslen is arguing that the trial court did not have

the statutory authority to prohibit her possession or consumption of marijuana as a condition of

community custody. No factual developments are required and the challenged action is final. State

v. Valencia, 169 Wn.2d 782, 789-90, 239 P.3d 1059 (2010) (holding that sentencing conditions

are final).

B. COMMUNITY CUSTODY CONDITIONS

        Heslen argues that the trial court did not have the statutory authority to impose a

community custody condition prohibiting her possession or consumption of legal quantities of

marijuana because it is not crime-related and it did not contribute to the offense of unlawful

possession of a controlled substance (methamphetamine). We disagree.

        We review a trial court’s statutory authority to impose a community custody condition de

novo. State v. Acevedo, 159 Wn. App. 221, 231, 248 P.3d 526 (2010). Where the trial court has

statutory authority, we review the imposition of a condition for abuse of discretion. State v. Polk,

187 Wn. App. 380, 397, 348 P.3d 1255 (2015). We review the trial court's finding that the



                                                  4
No. 47020-9-II


community custody prohibition is crime-related for substantial supporting evidence. State v.

Zimmer, 146 Wn. App. 405, 413, 190 P.3d 121 (2008).

         A sentencing court has the statutory authority to impose crime-related prohibitions and

community custody conditions as part of a sentence under RCW 9.94A.505(9).2 RCW 9.94A.703

authorizes specific mandatory, waivable, and discretionary conditions as a part of any term of

community custody. Unless waived by the court, the court shall order an offender to refrain from

possessing or consuming controlled substances except pursuant to lawfully issued prescriptions.

RCW 9.94A.703(2)(c). Additionally, the court may order an offender to refrain from possessing

or consuming controlled substances, including alcohol, or to comply with any crime-related

prohibitions. RCW 9.94A.703(3)(e), (f); see State v. Julian, 102 Wn. App 296, 304-05, 9 P.3d

851 (2000) (“While the link between the condition imposed and the crime committed need not be

causal, the condition must be related to the circumstances of the crime.”).

         Here, the trial court expressly found that Heslen had a chemical dependency that

contributed to her offense of unlawful possession of methamphetamine and Heslen does not

challenge the trial court’s finding. Thus, the prohibition against possession and consumption of

marijuana was crime-related and we hold that the trial court properly exercised its discretion by

prohibiting Heslen from possessing or consuming marijuana during her community custody.




2
    Former RCW 9.94A.505(8) (2010), amended by LAWS OF 2015, ch. 287, § 10.


                                                 5
No. 47020-9-II


                                        CONCLUSION

        We affirm Heslen’s conviction and hold that the trial court did not err when it imposed a

community custody condition prohibiting Heslen from possessing or consuming marijuana.

        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.




                                                    SUTTON, J.
 We concur:



 MAXA, A.C.J.




 MELNICK,




                                                6
