                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                               JUN 18 1998
                                   TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                    Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                           No. 97-4086
 v.
                                                       (D.C. No. 96-CR-111)
                                                         (District of Utah)
 SHAWN D. WALKER,

          Defendant - Appellant.




                             ORDER AND JUDGMENT *


Before LUCERO, McKAY and MURPHY, Circuit Judges.


      Defendant appeals his conviction for knowing possession of a controlled

substance in violation of 21 U.S.C. § 844(a) on the sole ground that the

government adduced insufficient evidence that he knew of the existence of

marijuana in his vehicle. We affirm.

                                            I

      During a routine gate stop at the Dugway Proving Grounds in Utah, Officer

Paul Lilenquist asked defendant, who was driving alone in a car registered in his

      *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
name, if he would consent to a search of his vehicle. After momentary hesitation,

defendant gave consent. Another officer then appeared with a drug-detecting

canine, which immediately alerted to the vehicle. Thereafter, the officers noticed

what they suspected to be a “marijuana cigarette laying approximately one-quarter

inch in length in plain view” on the floor below the passenger’s seat. R. at 51.

At that point, Lilenquist informed defendant that the dog had alerted to his

vehicle and began to “process” the vehicle to gather evidence. Id.

      When Lilenquist began to search the vehicle, he noticed the “distinct odor”

of marijuana. Id. at 52. In addition to the “roach” in plain view, Lilenquist

retrieved another from the ashtray and approximately twelve marijuana seeds from

the floor of the driver’s side of the vehicle. At trial, the government introduced

evidence from a criminalist in the Utah state crime lab who testified that the two

cigarettes tested positive for marijuana and that the seeds “definitely appear[ed]

to be marijuana seeds.” R. at 72. 1 In addition, Lilenquist testified that Walker

refused to consent to a urinalysis test. The defense presented no witnesses.

                                           II

      The sole issue on appeal is whether the government introduced sufficient

evidence for a jury to conclude that Walker knew there was marijuana in his car.



      1
         According to lab policy, the seeds were never tested because other evidence
retrieved from the car tested positive for marijuana.

                                           -2-
Contrary to the government’s brief, defendant does not argue that the crime of

possession requires “a certain amount of controlled substance.” Appellee’s Br. at

6. Rather he argues that no reasonable jury could find beyond a reasonable doubt

that he knew there was marijuana in his car because of the small amount and its

location within the vehicle.

      In reviewing sufficiency of the evidence, we view the evidence in the light

most favorable to the government and determine whether a rational jury could

have found all the essential elements of the crime beyond a reasonable doubt. See

United States v. Leos-Quijada, 107 F.3d 786, 794 (10th Cir. 1997). The jury may

draw any and all reasonable inferences in favor of the government but it may not

speculate or engage in conjecture in order to convict. See id.

      The government’s argument in this case is premised on defendant’s

constructive possession of the marijuana. “Constructive possession may be found

if a person knowingly has ownership, dominion or control over the narcotics and

the premises where the narcotics are found.” United States v. Jones, 49 F.3d 628,

632 (10th Cir. 1995) (internal quotation omitted). “Dominion, control, and

knowledge, in most cases, may be inferred if a defendant had exclusive

possession of the premises.” United States v. Mills, 29 F.3d 545, 549 (10th Cir.

1994). But “proof of dominion or control, without the requisite showing of




                                         -3-
knowledge, is insufficient to sustain a conviction” based on knowing possession.

United States v. Hooks, 780 F.2d 1526, 1531 (10th Cir. 1986).

      In Hooks, this court stated that a defendant’s mere possession of a vehicle

that he did not own is insufficient by itself to prove knowing possession of a

controlled substance (PCP) concealed within the vehicle. See id. In addition, the

Hooks court rejected the government’s argument that the smell of the drug in the

vehicle should have been sufficient by itself to establish Hooks’s knowledge

because the government failed to establish by direct evidence that the defendant

was familiar with the smell. See id. Nevertheless, in evaluating the strength of

the “collective inferences to be drawn from the evidence as a whole,” 2 we

ultimately sustained the defendant’s conviction. See id. at 1532.

      Likewise, the direct and circumstantial evidence in this case, with all of the

collective inferences taken in the light most favorable to the government, is

sufficient to find defendant knowingly possessed marijuana. First, defendant was

the owner and sole occupant of the vehicle when it was stopped. Although, as

defendant suggests, it is possible that someone could have borrowed the car or

that there may have been a passenger who left the marijuana there, an equally

reasonable inference is that defendant as owner and possessor had exclusive


      2
         Such evidence included the defendant’s use of a false name, his physical
appearance, and his attempts to divert attention away from the vehicle. See Hooks, 780
F.2d at 1532.

                                          -4-
control of the vehicle and its contents. Second, there was testimony suggesting

that defendant was at first hesitant to have his car searched at the entry gate, and

that he did not appear surprised when informed that marijuana was ultimately

found. Third, defendant’s argument that he was unaware of the presence of any

marijuana is at least somewhat belied by the discovery of marijuana in plain view

of the arresting officers. Finally, Lilenquist testified that there was a distinct

odor of marijuana in the vehicle at the time of the search. Although Hooks

instructs that evidence of odor is meaningless without direct evidence that

defendant knew what the odor was, defendant concedes that his refusal to submit

to the urinalysis gives rise to some inference that he had used marijuana before. 3

See Appellant’s Br. at 10. Collectively, the presence of marijuana in plain view,

the inference that defendant had exclusive control of the vehicle, and the odor,

taken in conjunction with the defendant’s refusal to submit to a urinalysis test,

support a strong inference that defendant knew that there was marijuana in his

car.



       3
          Defendant does not challenge the introduction into evidence of his refusal to
consent to a urinalysis test. We therefore do not consider this issue on appeal. Moreover,
because defendant explicitly concedes the propriety of drawing an inference from his
refusal to consent, we do not construe his blanket challenge to the sufficiency of the
evidence as a challenge to the permissibility of that inference. See United States v.
Hardwell, 80 F.3d 1471, 1492 (10th Cir. 1996) (“[Defendant] has waived this issue by
failing to make any argument or cite any authority to support [such a challenge].”),
modified on other grounds, 88 F.3d 897 (10th Cir. 1996).

                                           -5-
AFFIRMED.

            ENTERED FOR THE COURT



            Carlos F. Lucero
            Circuit Judge




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