                                                                                            Filed
                                                                                      Washington State
                                                                                      Court of Appeals
                                                                                       Division Two

                                                                                       August 7, 2018




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II
 STATE OF WASHINGTON,                                             No. 50341-7-II

                              Respondent,

        v.

 ANTHONY JAMES LUJAN,                                       UNPUBLISHED OPINION

                              Appellant.

       LEE, A.C.J. — Anthony James Lujan appeals his two unlawful possession of a controlled

substance convictions. He contends that trial court erred by instructing the jury on constructive

possession when the charges were based on actual possession. We affirm.

                                            FACTS

       Lacey Police Officer Alex Ficek was working overtime detail at a department store when

he recognized Lujan and followed him outside. When Lujan stopped by a trash can, Officer Ficek

approached him. Lujan told the officer that he had a warrant for his arrest. After confirming the

warrant, Officer Ficek attempted to arrest Lujan. Lujan resisted, but the officer eventually

handcuffed Lujan.

       Officer Ficek searched Lujan incident to the arrest. Inside the jacket that Lujan was

wearing, the officer found a case. The case contained methamphetamine and heroin.

       The State charged Lujan with two counts of unlawful possession of a controlled substance

based on the methamphetamine and heroin found in the jacket he was wearing. The State proposed
No. 50341-7-II


a jury instruction that stated possession can be actual or constructive and that “[c]onstructive

possession occurs when there is no actual physical possession but there is dominion and control

over the substance.” Clerk’s Papers (CP) at 35. When the trial court questioned the State why it

wanted to instruct the jury on constructive possession, the prosecutor stated, “I don’t want them to

get lost in argument . . . it gives us a little bit of a difference in terms of different types of possession

or control and so it helps define that idea of possession a little bit more.” Verbatim Report of

Proceedings (VRP) (February 22, 2017) at 85.              Defense counsel objected to the proposed

instruction, arguing that the language defining constructive possession was inappropriate in this

case because the evidence showed only actual possession.

        The trial court allowed the instruction, concluding:

        I don’t see error and I concur that the context of possession, while it might not be
        very helpful, I think is more helpful than not, and so ultimately I decided that this
        would be helpful to the jury and so I included that language that was proposed by
        the State.

VRP (February 22, 2017) at 94. The trial court instructed the jury:

                Possession means having a substance in one’s custody or control. It may
        be either actual or constructive. Actual possession occurs when the item is in the
        actual physical custody of the person charged with possession. Constructive
        possession occurs when there is no actual physical possession but there is dominion
        and control over the substance.

 CP at 70.

        During closing arguments, the State discussed the difference between actual and

constructive possession, stating, “you’re given two different definitions for what possession

means. We have an actual possession and constructive possession. We don’t have to deal with

constructive possession in this case. We know that the defendant actually possessed it. It was in




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No. 50341-7-II


his coat.” VRP (February 22, 2017) at 147. The State continued by explaining that an example of

constructive possession “would be . . . like a woman who has a purse that she’s set down on the

side or set under a chair . . . for example. It’s still yours, you still are asserting a dominion and

control over it, but you’re not actually physically holding it. It’s not attached to your body at the

time.” VRP (February 22, 2017) at 147. The State then reiterated, “In this case, we’re just dealing

with the actual possession . . . . He actually possessed [the drugs] at the time.” VRP (February 22,

2017) at 147

        The jury found Lujan guilty as charged. Lujan appeals.

                                             ANALYSIS

        Lujan contends the trial court erred by instructing the jury on constructive possession when

the State’s theory of the case was actual possession. We disagree.

A.      LEGAL PRINCIPLES

        We review a trial court’s choice of jury instructions for an abuse of discretion if based on

factual determinations. State v. Schierman, 84614-6, slip op. at 77 (Wash. Apr. 12, 2018)

http://www.courts.wa.gov/opinions/pdf/846146.pdf “A jury instruction is proper if it permits each

party to argue its theory of the case, is not misleading, and properly informs the jury of the

applicable law.” Id. (citing State v. Clark, 143 Wn.2d 731, 771, 24 P.3d 1006 (2001)). “Each side

is entitled to have the trial court instruct upon its theory of the case if there is evidence to support

that theory.” State v. Theroff, 95 Wn.2d 385, 389, 622 P.2d 1240 (1980)




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No. 50341-7-II


B.     CONSTRUCTIVE POSSESSION JURY INSTRUCTION

       Possession of a controlled substance may be actual or constructive. State v. Ibarra-

Cisneros, 172 Wn.2d 880, 897, 263 P.3d 591 (2011). Actual possession occurs when a defendant

has physical custody of the item, and constructive possession occurs if the defendant has dominion

and control over the item. State v. Jones, 146 Wn.2d 328, 333, 45 P.3d 1062 (2002).

       Here, the trial court instructed the jury:

               Possession means having a substance in one’s custody or control. It may
       be either actual or constructive. Actual possession occurs when the item is in the
       actual physical custody of the person charged with possession. Constructive
       possession occurs when there is no actual physical possession but there is dominion
       and control over the substance.

 CP at 70. The trial court’s jury instruction correctly stated the law.

       Moreover, the State discussed the difference between actual and constructive possession

during closing arguments, stating, “you’re given two different definitions for what possession

means. We have an actual possession and constructive possession. We don’t have to deal with

constructive possession in this case. We know that the defendant actually possessed it. It was in

his coat.” VRP (February 22, 2017) at 147. The State reiterated, “In this case, we’re just dealing

with the actual possession . . . . He actually possessed [the drugs] at the time.” VRP (February 22,

2017) at 147. Thus, the jury instruction allowed the State to argue its theory of the case by clearly

explaining to the jury the two different ways of possessing a controlled substance and that the facts

of this case fall under actual possession. Also, the instruction was not misleading because the State

repeatedly clarified that its theory of the case was that Lujan’s possession of the methamphetamine

and heroin was based on actual possession.




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No. 50341-7-II


        Because the possession jury instruction permitted each party to argue its theory of the case,

was not misleading, and was a correct statement of the law, the instruction was proper. Thus, the

trial court did not abuse its discretion by instructing the jury on constructive possession.

        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.




                                                      Lee, A.C.J.
 We concur:



 Bjorgen, J.




 Melnick, J.




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