                                                                                                                FIL- p
                                                                                                       t
                                                                                                           OMIT OF APPEAL 3-
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DI` v' l .S10                                                         II

                                                                                                     2014 JAN 22 AN 9:        7
                                            DIVISION II
                                                                                                     S T,
STATE OF WASHINGTON,                                                            No. 43226 -9 -II
                                                                                                     By

                                      Respondent,                       UNPUBLISHED OPINIO


         V.




NATHEN R. WRIGHT,




         BJORGEN,       J. —    Nathen Wright appeals from his convictions for unlawful


possession of heroin and unlawful possession of drug paraphernalia, arguing that the

State failed to    present sufficient evidence      to   support   them.'   He also argues that the trial


court erred   in   imposing    sentence conditions.       We affirm his convictions, but remand for

                                  2
correction of   his   sentence.




A.       Sufficiency of the Evidence

         Evidence is sufficient if, when viewed in a light most favorable to the State, it


permits any rational trier of fact to find the essential elements of the crime beyond a

                                    119 Wn.2d 192,- 201, 829 - 2d -1068 ( 1992). " A claim - -- _
reasonable doubt. State v. Salinas; -                        P.


of insufficiency admits the truth of the State' s evidence and all inferences that reasonably

can   be drawn therefrom." Salinas, 119 Wn.2d at 201.


         On October 27, 2010, a sport utility vehicle ( SUV) driven by Wright rear -ended

an unoccupied         school   bus that   was   preparing to    make   a    signaled   left turn.   Wright' s




1
    He does not appeal from his conviction for vehicular homicide.

2
    A commissioner of this court initially considered Wright' s appeal as a motion on the
merits under    RAP 18. 14      and then   transferred it to   a panel of judges.
43226 -9 -11



passenger, Kahil Marshall, the registered owner of the SUV, died as a result of the

accident.




          A search of the SUV following the collision resulted in the seizure of two

syringes on the passenger' s side floorboard and a spoon with a small piece of cotton


found in the        center console.   Spoons are used to dissolve heroin into water, after which


the   cotton   is   added.   The cotton seized from the SUV tested positive for the presence of


heroin.       During the investigation, Wright admitted to having used methamphetamines

three days before the collision, but denied he was under the influence of any drugs at the

time of the collision. He also admitted to knowing there were drugs present in the SUV.

             Wright argues that the State failed to present sufficient evidence that he

constructively possessed the heroin or the spoon and so failed to present sufficient

evidence that he unlawfully possessed a controlled substance or unlawfully possessed

drug    paraphernalia.       Constructive possession is established when " the defendant was in

dominion and control of either the drugs or the premises on which the drugs were found."

State   v.   Callahan, 77 Wn.2d 27, 30 -31, 459 P. 2d 400 ( 1969)            Dominion and control over


an    object means      that it " may be    reduced   to    actual              immediately. " - State
                                                                     possession -                        v. - - - - -


Jones, 146 Wn.2d 328, 333, 45 P. 3d 1062 ( 2002).                    A vehicle is a type of premises for


purposes       of constructive possession.        State v. Turner, 103 Wn. App. 515, 521, 13 P. 3d

234 ( 2000).


             We consider the totality of the circumstances in determining whether the

defendant has such dominion and control. State v. Cote, 123 Wn. App. 546, 549, 96 P. 3d

410 ( 2004).        Possession   need not   be   exclusive.   State v. Weiss, 73 Wn.2d 372, 375, 438


P. 2d 610 ( 1968).       The State presented evidence that Wright was in dominion and control




                                                       16
43226 -9 -11



of   the SUV    when    it   collided with     the school     bus. It also presented evidence that Wright


knew that drugs were present in the SUV. Under the standards above, the State presented

sufficient evidence that Wright constructively possessed the heroin and the spoon.

         Wright also argues that the jury erred in not finding that his possession of the

heroin   and   the   spoon was     unwitting     and   therefore      not unlawful.    To establish the defense


of unwitting possession, Wright had the burden of proving by a preponderance of the

evidence either that he did not know he was in possession of the heroin or spoon or that

he did   not   know the      nature of   the   substance     in the   spoon.    City of Kennewick v. Day, 142

Wn.2d 1,       11,   11 P. 3d 304 ( 2000).       The trial court instructed the jury on the defense of

unwitting      possession.      In finding Wright guilty of unlawful possession of controlled

substances and of unlawful possession of drug paraphernalia, the jury rejected that

defense.       Under the standards above, the evidence before the jury was sufficient for a

reasonable trier of fact to reject the defense of unwitting possession.

B.       Sentencing Conditions

                      Wright                    two         the                    his community custody.         He
         Finally,               challenges             of          conditions of




argues that the trial court erred in requiring him to undergo a substance abuse evaluation -

and    any     recommended        treatment,     because it did          not    make   a    finding,   under RCW


9. 94A. 607( 1),     that he has   a chemical      dependency          that   contributed   to the   crime.   State v.


Jones, 118 Wn.        App.    199, 209 -10, 76 P. 3d 258 ( 2003). But even though the court did not


make such a finding, Wright' s conviction for vehicular homicide, which he did not

appeal, required the court to order him to undergo a substance abuse evaluation and any

recommended treatment under RCW 9. 94A.703( 4).




                                                             It"
43226 -9 -11



          Wright also argues that the trial court erred in ordering that he " shall not go into

bars, taverns, lounges, •or other places whose primary business is the sale of liquor."

Clerk' s Papers     at   14.   The State concedes that without a finding by the trial court that the

use of alcohol contributed to Wright' s crimes, the court lacked the authority to impose

that   condition.   Jones, 118 Wn.         App.   at   207 -08. We accept the concession and remand to


the trial court to strike that condition.


          We affirm Wright' s convictions but remand for correction of his sentence.


          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.


                                                                                        1517




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