I D:LEO COURT OF APIEALS

-1.11Y 1 STATE OF WASHINGTON 

### _201811PR 23 Ali 8:30

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE THE STATE OF WASHINGTON, Respondent, V. TERRY JEREMIAH CONNORS, Appellant. No.76169-2-1

UNPUBLISHED OPINION

FILED: April 23,2018 

### SCHINDLER,J.— A jury convicted Terry Jeremiah Connors of possession ofa stolen motor vehicle in violation of RCW 9A.56.140(1). Connors seeks reversal,arguing sufficient evidence does not support possession or knowledge. Because sufficient evidence supports the conviction,we disagree,and affirm. FACTS Brian and Jennifer Desotell live in a trailer park on Yew Street Road in Bellingham. At around 5:30 a.m.on September 8,2016,Brian left his mobile home and went outside.' In front of his mobile home,Brian saw Terry Jeremiah Connors in his driveway with a motorcycle helmet,standing next to a red CBR500 motorcycle. Brian had known Connors since Connors was a child.

We refer to Brian and Jennifer Desotell by their first namesfor purposes ofclarity and mean no disrespect by doing so.No. 76169-2-1/2

Connors walked up on the porch and asked Brian for "tools to getthe bike running." Connors said the motorcycle was his, but Brian did not believe the motorcycle belonged to Connors. Brian told Connors he was on his way to the airport. Brian said he did not have time to help him and told Connors he "needed to take the bike and go." Connors took the motorcycle and pushed it about 15 to 20feet away in front ofa neighbor's house. Brian went back inside his mobile home and told his spouse Jennifer what had happened. Jennifer looked outthe kitchen window and saw the motorcycle in a neighbor's driveway. Brian left to go to the airport. Jennifer called 911. Connors began "pounding"on herfront door. Connors asked Jennifer if he could borrow a screwdriver or a flashlight. Jennifer told him no. Connors asked Jennifer if she could help "jump-start his motorcycle." Jennifer refused and told Connors he needed to leave. Whatcom County Sheriffs Office Deputy Kurt Devries responded to the 911 call. When Deputy Devries arrived, he saw Connors sleeping on the front porch ofthe Desotells'mobile home. Deputy Devries verified the motorcycle had not been reported stolen.Deputy Devries took Connors into custody on an unrelated matter. Because the motorcycle had not been reported stolen,the motorcycle remained parked in the neighbor's driveway. Deputy Devries helped Connors collect his personal property. Connors did not possess any keys for the motorcycle or any tools.

2No. 76169-2-1/3

Deputy Devries asked Connors if he wanted to bring the motorcycle helmet with him. Connors told Deputy Devries he did not want to bring the helmet and asked the deputy to throw the helmet away. Jennifer later threw away the helmet. Jennifer and two neighbors inspected the motorcycle later that day. Jennifer, whose father was a mechanic,noticed the motorcycle appeared to have been "hotwired." Jennifer and her neighborsfound the registration for the motorcycle underneath the seat ofthe motorcycle. The registration showed the motorcycle belonged to Samuel Williams. Bellingham Police Department Officer Joshua Willson contacted Williams to ask if he was missing a motorcycle. Williams lived in downtown Bellingham. He believed his motorcycle was parked next to his car in the gated parking garage attached to his apartment building. Williams checked the parking garage and discovered his motorcycle was gone. Williams met Officer Willson at the Desotells'property. Williams confirmed the motorcycle belonged to him and the motorcycle was not in the same condition as he left it. The motorcycle "had multiple scrapes on the right side of it along the exhaust,the handlebar,the mirrors,and the pegs." The wiring next to the left handlebar where the ignition key is inserted looked "mangled,"as if it had been "tampered with." Williams said the motorcycle helmetdid not belong to him. The State charged Connors with possession ofa stolen motor vehicle in violation of RCW 9A.56.068 and .140(1). Brian,Jennifer, Deputy Devries,Williams,and Officer Willson testified attrial. The jury convicted Connors as charged.

3No.76169-2-1/4
ANALYSIS

Connors argues the State did not prove beyond a reasonable doubtthe essential elements of possession and knowledge. The State has the burden of proving the elements ofa crime beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364,90 S.Ct. 1068,25 L. Ed. 2d 368 (1970); State v. Borrero, 147 Wn.2d 353,364,58 P.3d 245 (2002). Under the Fourteenth Amendment and the Sixth Amendment to the United States Constitution and article 1, sections 21 and 22 ofthe Washington State Constitution, a criminal defendant is entitled to" 'a jury determination that[he]is guilty of every element ofthe crime with which he is charged,beyond a reasonable doubt.'" Apprendi v. New Jersey, 530 U.S. 466,476-77, 120 S.Ct. 2348, 147 L. Ed.2d 435 (2000)2 (quoting United States v. Gaudin, 515 U.S. 506,510, 115 S.Ct. 2310, 132 L. Ed. 2d 444 (1995)); State v. Polo, 169 Wn.App.750,762-63, 282 P.3d 1116 (2012);State v. Johnson, 185Wn.App.655, 666,342 P.3d 338 (2015). In reviewing a challenge to the sufficiency ofthe evidence,we view the evidence in the light mostfavorable to the State to determine whether any rational trier offact could have found the essential elements ofthe crime beyond a reasonable doubt. State

v. Witherspoon, 180 Wn.2d 875,883,329 P.3d 888 (2014);State v. Salinas, 119 Wn.2d 192,201,829 P.2d 1068 (1992). A challenge to the sufficiency ofthe evidence admits the truth ofthe evidence. Witherspoon, 180 Wn.2d at 883. Circumstantial evidence and direct evidence are equally reliable. State v. Kintz, 169 Wn.2d 537,551,238 P.3d 470 (2010). "[A]ll reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant." Salinas, 119 Wn.2d at

2 Alteration in original. 4No. 76169-2-1/5

201. We defer to the trier offact on "issues ofwitness credibility." Witherspoon, 180 Wn.2d at 883. Under RCW 9A.56.068(1),a person commits the crime of possession of a stolen vehicle "if he or she [possesses]a stolen motor vehicle."3 RCW 9A.56.140(1)defines the crime of "possessing stolen property"as: [K]nowingly to receive, retain, possess,conceal,or dispose of stolen property knowing that it has been stolen and to withhold or appropriate the same to the use of any person other than the true owner or person entitled thereto. Possession may be actual or constructive. State v. Jones, 146 Wn.2d 328,333, 45 P.3d 1062 (2002). "A defendant has actual possession when he or she has physical custody ofthe item and constructive possession if he or she has dominion and control
over the item." Jones, 146 Wn.2d at 333. Here,the court instructed the jury on the elements ofthe crime and actual possession: A person commits the crime of possessing a stolen motor vehicle when he or she possesses a stolen motor vehicle. Possessing a stolen motor vehicle means knowingly to possess,or dispose of a stolen motor vehicle knowing that it has been stolen and to withhold or appropriate the same to the use ofany person other than the true owner or person entitled thereto. The court instructed the jury:

To convict the defendant ofthe crime ofpossessing a stolen motor vehicle,each ofthe following elements ofthe crime must be proved beyond a reasonable doubt: (1)That on or about the 8th day ofSeptember,2016,the defendant knowingly possessed or disposed of a stolen motor vehicle;

3 Alteration in original. 5No. 76169-2-1/6 (2)That the defendant acted with knowledge that the motor vehicle had been stolen; (3)That the defendantwithheld or appropriated the motor vehicle to the use of someone other than the true owner or person entitled thereto. Citing State v. Callahan, 77Wn.2d 27,29,459 P.2d 400 (1969), Connors argues the State showed only a momentary,passing control over the motorcycle. In Callahan, officers found drugs in the houseboat where the defendantwas staying. Callahan, 77 Wn.2d at 28. The officers did notfind drugs on the defendant's person but the defendant admitted he had handled the drugs earlier that day. Callahan, 77Wn.2d at 28-29. The court concluded the admission did not show actual possession because "possession entails actual control, not a passing control which is only a momentary handling." Callahan, 77Wn.2d at 29. Here, unlike in Callahan, the unrebutted evidence establishes actual possession. Both Brian and Jennifer saw Connors with a motorcycle helmet standing next to the motorcycle. Connors told Brian the motorcycle belonged to him. After Brian told Connors to leave, Connors pushed the motorcycle 15 to 20feetto the neighbor's property. Connors first asked Brian and then asked Jennifer for tools or help to jumpstart the motorcycle. When Deputy Devries arrived, Connors was on the Desotells' porch and the motorcycle was where Connors had left it, in front ofa neighbor's house. Drawing all reasonable inferences in favor ofthe State,the evidence shows Connors had physical custody and actual control over the motorcycle both before and after he arrived at the Desotells'mobile home. Under RCW 9A.56.068(1)and .140(1),the State must prove beyond a reasonable doubt that Connors knowingly possessed a stolen motor vehicle. A person

6No.76169-2-1/7

"acts knowingly"when he or she is "aware ofa fact"or "has information which would lead a reasonable person in the same situation to believe thatfacts [described by a statute defining the offense]exist." RCW 9A.08.010(1)(b)(i),(ii). Connors asserts insufficient evidence demonstrates he knew the motorcycle had been stolen. We disagree. The evidence showed Connors knew the motorcycle was stolen. When Deputy Devries took Connors into custody,Connors did not have a key to the motorcycle and told the police to "throw away"the motorcycle helmet. Officer Willson testified the wires near the front ofthe gas tank appeared to have been "stripped." Jennifer testified the motorcycle had been hot-wired. Jenniferfound the registration for the motorcycle easily accessible underneath the seat. The registration showed the motorcycle belonged to Williams. Williams did not give Connors or anyone else permission to use the motorcycle. The reasonable inference from the evidence is that Connors knew the motorcycle had been stolen. Drawing all inferences in the light mostfavorable to the State,the evidence shows Connors knowingly possessed a stolen motorcycle. Sufficient evidence supports the conviction of possession ofa stolen motor vehicle. We affirm the conviction.

WE CONCUR:

7