                                                                           FILED 

                                                                         OCT 21, 2014 

                                                                 I n 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 WASINGTON,                           )
                                              )         No. 31115-5-111
                     Respondent,              )
                                              )
       v.                                     )
                                              )
BRIAN M. PARKER,                              )         UNPUBLISHED OPINION
                                              )
                     Appellant.               )

       KORSMO, J.   - Brian Parker challenges his conviction for possession of

methamphetamine, arguing that the evidence was insufficient and that his possession was

unwitting. The evidence supported the jury's verdict.

                                         FACTS

       Mr. Parker was arrested after officers investigating another suspect witnessed him

drive up to her residence. The two soon left and got into Mr. Parker's car. Prior to leaving,

Mr. Parker exited the driver's seat, accessed the trunk with a key, and then returned to the

driver's seat and drove off. Officers stopped the car to arrest the passenger. While one

officer arrested her, the other officer made contact with Mr. Parker. The officer smelled

marijuana coming from the car. After asking him to exit the vehicle, the officer smelled
No. 31115-5-111
State v. Parker


marijuana on Mr. Parker's person. Mr. Parker told the officer he had a marijuana pipe on

him. He was placed under arrest. The police obtained a search warrant for the car and

discovered a small black travel bag in the trunk that contained methamphetamine.

       Mr. Parker was charged with one count of possession of methamphetamine. The

case proceeded to ajury trial. Although he did not testify, Mr. Parker received a jury

instruction on unwitting possession. (RP 210-11.) The jury found Mr. Parker guilty as

charged. He then timely appealed to this court.

                                       ANALYSIS

       Mr. Parker contends that there was insufficient evidence to support the jury's

determination that he possessed methamphetamine. In the alternative, he contends that

he demonstrated unwitting possession of the methamphetamine. These arguments are

two sides of the same coin and we address them together.

       In determining whether evidence is sufficient to sustain a conviction, we review

the evidence in the light most favorable to the State. State v. Wentz, 149 Wn.2d 342, 347,

68 P.3d 282 (2003). The relevant question is "whether any rational fact finder could have

found the essential elements of the crime beyond a reasonable doubt." Id. In claiming

insufficient evidence, the defendant necessarily admits the truth of the State's evidence

and all reasonable inferences that can be drawn from it. State v. Salinas, 119 Wn.2d 192,

201,829 P.2d 1068 (1992). Appellate courts defer to the trier-of-fact on issues of




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No. 31115-5-111
State v. Parker


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

State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).

       The only element at issue is whether Mr. Parker possessed the methamphetamine. 1

Possession may be actual or constructive. "Actual possession means that the goods are in

the personal custody of the person charged with possession; whereas, constructive

possession means that the goods are not in actual, physical possession, but that the person

charged with possession has dominion and control over the goods." State v. Callahan,

77 Wn.2d 27, 28, 459 P .2d 400 (1969).

       Dominion and control are determined by the totality of the circumstances; no

single factor is dispositive. State v. Cote, 123 Wn. App. 546, 549,96 P.3d 4lO (2004).

One aspect of dominion and control is "the ability to reduce an object to actual

possession." State v. Turner, 103 Wn. App. 515, 521, 13 P.3d 234 (2000). Additionally,

constructive possession of contraband exists if the defendant had dominion and control

over the contraband or over the premises where it was found. ld. For purposes of this

inquiry, a vehicle is a "premises." ld. Sufficient evidence of constructive possession




       1  Unlawful possession of a controlled substance does not have a knowledge element.
State v. Bradshaw, 152 Wn.2d 528,538,98 P.3d 1190 (2004).



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No. 31115-5-111
State v. Parker


(and dominion and control), exists when the defendant was either the owner of the

premises or the driver/owner of the vehicle where contraband was found. 2

       Here, Mr. Parker demonstrated the ability to reduce the methamphetamine to

actual possessiQn. He possessed the keys to the car-including the trunk-that he drove

to the scene. He was also seen accessing the trunk-where the methamphetamine was

later found-just before he was stopped. His passenger was never seen possessing the

bag or using the trunk. He also was the owner and operator of the vehicle. Sufficient

evidence existed for the jury to find Mr. Parker in constructive possession of the

methamphetamine.




      2   See Turner, 103 Wn. App. at 521 (Defendant's admission that he had been driving
truck in which rifle was found in open case on back seat and that he knew rifle was there,
together with other evidence that defendant was in close proximity to rifle, knew of its
presence, was able to reduce it to his possession, owned and had been driving truck in
which rifle was found, was sufficient to support constructive possession); State v. Bowen,
157 Wn. App. 821, 828,239 P.3d 1114 (2010) (knowledge of firearm, ownership of
vehicle in which the firearm was found as well as close proximity to firearm, were
sufficient to support possession notwithstanding someone else claimed ownership of
firearm); State v. McFarland, 73 Wn. App. 57, 70, 867 P.2d 660 (1994) (knowing
transportation of guns in defendant's vehicle sufficient for constructive possession);
State v. Reid, 40 Wn. App. 319, 326, 698 P .2d 588 (1985) (sufficient evidence existed
where the defendant admitted having a pistol in his car and testified that he moved it to
the back so it would not be seen by police who were pursuing him); State v. Echeverria,
85 Wn. App. 777, 783, 934 P.2d 1214 (1997) (sufficient evidence existed where gun was·
in plain sight at the defendant's feet and within his reach).



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No. 31115-5-111
State v. Parker


       Mr. Parker also asserts that even if the State proved its case, he produced sufficient

evidence to demonstrate that his possession was unwitting. The jury disagreed, and so do

we.

       Unwitting possession is an affirmative defense to unlawful possession of a

controlled substance. Bradshaw, 152 Wn.2d at 538. To avail himself of this defense, the

defendant must prove by a preponderance of the evidence that possession of the controlled

substance was unwitting. State v. Buford, 93 Wn. App. 149, 152,967 P.2d 548 (1998).

       Mr. Parker bore the burden of proving by a preponderance of the evidence that he

did not know he was in possession of the methamphetamine or that he did not know the

nature of the substance within the travel bag. Mr. Parker did not take the stand, nor did

he produce any witnesses to testify that he did not know the nature of the items in the

bag. Under these circumstances, it is difficult to understand why the trial court even gave

the unwitting possession instruction. It is quite understandable why the jury did not

accept it. More to the point, this court simply is not in a position to second guess the

jury's decision not to find unwitting possession.

       The conviction is affirmed.




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No. 31115-5-111
State v. Parker


      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.




WE CONCUR:




      Brown, J.



     ~I
      Siddoway, C.J.
                                 f!-J--




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