* This order and judgment is not binding precedent, except under the doctrines of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. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 18 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. SHAWN D. WALKER, Defendant - Appellant. No. 97-4086 (D.C. No. 96-CR-111) (District of Utah)

ORDER AND JUDGMENT *

Before LUCERO , McKAY and MURPHY , Circuit Judges. Defendant appeals his conviction for knowing posses sion 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 kn ewof the existence of marijuana in his vehicle. We affirm. I During a routine gate stop at the Dugway Proving Gr ounds in Utah, Officer Paul Lilenquist asked defendant, who was driving al one in a car registered in his1 According to lab policy, the seeds were never tested because other evidence

retrieved from the car tested positive for marijuana. -2- name, if he would consent to a search of his vehicl e. After momentary hesitation, defendant gave consent. Another officer then appea red 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 th e passenger’s seat. R. at 51. At that point, Lilenquist informed defendant that t he dog had alerted to his vehicle and began to “process” the vehicle to gathe r evidence. Id. When Lilenquist began to search the vehicle, he not iced the “distinct odor” of marijuana. Id. at 52. In addition to the “roach” in plain view, Lilenquist retrieved another from the ashtray and approximatel y 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 t he 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 defen se presented no witnesses. II The sole issue on appeal is whether the government introduced sufficient evidence for a jury to conclude that Walker knew th ere was marijuana in his car.-3-

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 smal l amount and its location within the vehicle. In reviewing sufficiency of the evidence, we view t he evidence in the light most favorable to the government and determine whet her 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 convi ct. See id. The government’s argument in this case is premised on defendant’s constructive possession of the marijuana. “Constru ctive possession may be found if a person knowingly has ownership, dominion or co ntrol over the narcotics and the premises where the narcotics are found.” Unite d 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 defe ndant had exclusive possession of the premises.” United States v. Mill s , 29 F.3d 545, 549 (10th Cir. 1994). But “proof of dominion or control, without the requisite showing of2Such evidence included the defendant’s use of a false name, his physical

appearance, and his attempts to divert attention away from the vehicle. SeeHooks , 780 F.2d at 1532. -4- 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 possess ion of a vehicle that he did not own is insufficient by itself to pr ove knowing possession of a controlled substance (PCP) concealed within the veh icle. 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 es tablish Hooks’s knowledge because the government failed to establish by direc t 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 evi dence as a whole,” 2 we ultimately sustained the defendant’s conviction. S ee id. at 1532. Likewise, the direct and circumstantial evidence in this case, with all of the collective inferences taken in the light most favor able to the government, is sufficient to find defendant knowingly possessed ma rijuana. First, defendant was the owner and sole occupant of the vehicle when it was stopped. Although, as defendant suggests, it is possible that someone cou ld have borrowed the car or that there may have been a passenger who left the m arijuana there, an equally reasonable inference is that defendant as owner and possessor had exclusive3 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. SeeUnited 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- control of the vehicle and its contents. Second, t here was testimony suggesting that defendant was at first hesitant to have his ca r searched at the entry gate, and that he did not appear surprised when informed thatmarijuana was ultimately found. Third, defendant’s argument that he was una ware of the presence of any marijuana is at least somewhat belied by the discov ery of marijuana in plain view of the arresting officers. Finally, Lilenquist tes tified 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 with out direct evidence that defendant knew what the odor was, defendant concede s that his refusal to submit to the urinalysis gives rise to some inference thathe 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 t o submit to a urinalysis test, support a strong inference that defendant knew thatthere was marijuana in his

car.-6-

AFFIRMED. ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge