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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE STATE OF WASHINGTON, Respondent,

v. CORNELIUS RITCHIE, Appellant. No. 71191-1-1

UNPUBLISHED OPINION FILED: July 6, 2015 Verellen, A.C.J. — A jury convicted Cornelius Ritchie of five counts of possession of a controlled substance with intent to deliver. The prosecutor argued in closing that Ritchie had actual but not constructive possession ofthe drugs. The State
now concedes there is insufficient evidence ofactual possession, but argues for the first time on appeal that sufficient evidence supports constructive possession. We need not reach Ritchie's arguments that the State is precluded from changing its position on appeal. We conclude there is insufficient evidence ofactual or constructive possession 

### ofthe drugs. Knowledge ofthe presence ofdrugs togetherwith mere proximity to and momentary handling ofthe drugs are insufficient to support Ritchie's convictions. We

reverse. FACTS On May 17, 2013, Ritchie and a woman walked along a trail in a wooded area. Atthe time, Ritchie was under community custody supervision. His communityNo. 71191-1-1/2


### corrections officer Grace Sholtz had requested that Ritchie reportto the Department of Corrections. Officers Sholtz and Nathan Bajema located Ritchie nearthe trail via a 

### global positioning system device that Ritchie wore. The officers saw Ritchie leave the trail, crouch down by some bushes in a public area, and appearto move his hands under the bushes. The officers could not see Ritchie's hands. Nor did the officers see 

### Ritchie carrying anything. Ritchie returned to the trailmoments later and leftthe area. Inthe area where Ritchie had crouched down, the officers found a purse, an 

### eyeglasses case, and a film canistercovered lightly withdebris and partially hidden in the bushes. The officers had never previously seen Ritchie withthose items. Inside the 

### eyeglasses case, the officers found 27 different colored pills containing four different controlled substances. Ritchie did not have a prescription for any medication. The 

### officers alsofound marijuana inside the purse and hashish inside the film canister. Ritchie testified that he had never seen those items before, nevertouched them, and did not know whatwas inthem. He also testified that he did not put the items inthe bushes but only briefly looked atthem. 

### Soon after he returned to the trail, Ritchie reported to his community corrections 

### officers. They arrested Ritchie and readhim hisMiranda1 rights. When asked about the items, Ritchie said that his female friend had told himaboutthem, that he was only 

### checking them out, and that he furtherconcealed them to try to hide them.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).No. 71191-1-1/3


### The trial court admitted several text messages retrieved from Ritchie's phone:2

• Sent by Ritchie on May 3, 2013: "I texted you at around thattime for I was going to come pick you up if you came to town. Drive you home and getyour ass smoked the fuck out. And give ya some hash and 

### pills so you could party party with you friends and roommates. LOL."[3]

• Received on May 12, 2013: "Hey so my roomies are really interested in doing something harderthan pot, like e and Iheard you mention it once plus Idon't know anyone else so ifthats a possibility will you let me know? Hehe is that weird? I feel like i shouldnt feel awk about that 

### but idk? :)°w

• Sent by Ritchie on May 12, 2013: "Well you should ofasked sooner and Icould ofjustgave you some E. plus you shouldn'tfeel awk asking me about anything. What Iwill do is call the bitch who usually has itand ask herfor some. Enough for two or three people right. Know you wantto get in on that right. Lol. So does this sound 

### good."!5'

• Sent by Ritchie on May 15, 2013: "Jess, hey you. Might need to come overtomorrow and do some stuff. People who will meet me there don't want lots ofpeople around ifyou know what Imean. This will be around 10am. So is it cool to come over then if need be. Plus remember. You are my #1go to girl on all my product. You and Brian. 

### Hit me up."!6!

• Sent by Ritchie on May 17, 2013: "This idiot loves you to. Very much so. Plus wanted to tell you that our pills are all money makers and were looking at like 600 bucks. That's 300 each for they and the 

### money from them are ours. Okay. Promise."'71 The trial court also admitted evidence that Ritchie had used his phone to search the Internet and identify pills similarto those found inthe eyeglasses case. 

### 2The text messages are unedited and intheir original form. 3Report ofProceedings (RP) (Oct. 15, 2013) at 215-16. 4id at 216. 5 Id at 216-17. 6 Id at 217. 7 Id. at 218.No. 71191-1-1/4
The trial court admitted one of Ritchie's recordedjail phone calls: [Rjemember how she [the prosecutor] told me there was six counts, she read six counts, Ikind of swore, they said five counts of possession. The prosecutor said itthen itcan only be five counts because there was only five prescription pills plus weed and marijuana, weed and hash and my weedandhash. Dude it's not. They can't even use that inthis court so 

### that leaves fi[v]e.[8] A jury convicted Ritchie of five counts ofpossession of a controlled substance with intent to deliver. Ritchie appeals. ANALYSIS Ritchie contends insufficient evidence supports the possession element of his convictions. We agree. 

### In a sufficiencychallenge, our review is "highly deferential to the jury's decision."9 Evidence is sufficientto support a conviction if itpermits any rational trier offact to find 

### the crime's essential elements beyond a reasonable doubt.10 Both circumstantial and direct evidence are equally reliable indetermining the evidence sufficientto sustain a 

### jury'sguiltyverdict.11 "An insufficiency claim admits the truth of the State's evidence."12 We view the evidence and all reasonable inferences inthe light mostfavorable to the State.13



### 8jd at 241 (emphasis added). 9State v. Davis. 182 Wn.2d 222, 227, 340 P.3d 820 (2014). 10 State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980). 11 State v. Kintz. 169 Wn.2d 537, 551, 238 P.3d 470 (2009). 12 State v. Bowen, 157 Wn. App. 821, 827, 239 P.3d 1114(2010). 13 Kintz, 169Wn.2dat551.No. 71191-1-1/5
The State was required to establish beyond a reasonable doubt both the nature 

### of the substance and the fact ofpossession by the defendant.14 "Possession is defined interms ofpersonal custody or dominion and control."15 "The State may establish that possession is either actual orconstructive."16 The prosecutor here argued to thejury in closing that Ritchie actually possessed the drugs as he walked along the trail: [T]he defendant actuallypossessedthese drugs, not constructively possessed these drugs. He was not seen with these drugs, butjustprior to seeing him our beliefis thatthe defendantwas possessing them. That 

### would be actual possession, okay.[17] But the drugs were neverfound on Ritchie's person. No one ever saw him holding any drugs or any containers on the trail or by the bushes. The State now concedes there is insufficient evidence of actual possession, but argues for the first time on appeal that sufficient evidence supports constructive possession. The trial court instructed thejury on constructive possession: Constructive possession occurs when there is no actual physical possession butthere is dominion and control overthe substances. Proximity alone without proofofdominion and control is insufficient to establish constructive possession. Dominion and control need not be exclusive to support a finding of constructive possession. In deciding whetherthe defendant had dominion and control over a 

### substance, you are to considerallthe relevant circumstances inthe case. Factors that you may consider, among others, include whetherthe defendant had the ability to take actual possession ofthe substance,

14RCW 69.50.401 15 State v. Stalev. 123 Wn.2d 794, 798, 872 P.2d 502 (1994). 

### 16 ]d 17RP(Oct. 16, 2013) at 397.No. 71191-1-1/6
whetherthe defendant had the capacity to exclude others from possession ofthe substance, and whetherthe defendant had dominion and control overthe premises where the substance was located. No single one of 

### these factors necessarily controls your decision.[18] 

### Adefendant must have dominion and control over the drugs.19 Dominion and control is determined based on the totality ofthe circumstances.20 The defendant's dominion and control need not be exclusive.21 Generally, dominion and control means 

### the defendant can immediately convertthe drugs to his or her actual possession.22 But the State "'must prove more than a passing control,'" or mere momentary handling.23 

### The State "'mustprove actual control.'"24 Mereproximityto drugs is insufficientto establish constructive possession.25 Additionally, knowledge of the presence of a controlled substance alone is insufficient to establish dominion and control.26 Viewed in a lightmostfavorable to the State, a jury could reasonably infer that (1) Ritchie knew where the containers were located, (2) he knew the containers' contents, (3) he was momentarily in close proximity to the containers, and (4) he 

### covered the containers withdebris "to tryand hide them."27 ButRitchie's mere proximity
18 Clerk's Papers at 69. 19 Bowen, 157 Wn. App. at 827-28: Statev. Shumaker. 142 Wn. App. 330, 331, 174P.3d 1214(2007). 

### 20 State v. Summers. 107 Wn. App. 373, 384, 28 P.3d 780 (2001). 21 State v.Weiss. 73 Wn.2d 372, 375, 438 P.2d 610 (1968). 22 State v. Reichert. 158 Wn. App. 374, 390, 242 P.3d 44 (2010). 23 Davis. 182 Wn.2d at 227 (quoting Stalev, 123 Wn.2d at 801). 

### 24 id (quoting Stalev. 123 Wn.2d at 801). 25 State v. Portrev. 102 Wn. App. 898, 902-03, 10 P.3d 481 (2000). 

### 26 State v. Davis. 16 Wn. App. 657, 659, 558 P.2d 263 (1977). 27RP(Oct. 15, 2013) at 135.

6No. 71191-1-1/7

to and momentary concealment ofthe containers were limited in both scope and duration. Even ifwe view Ritchie's conduct by the bushes as handling the containers, his handling was only momentary. No evidence suggests Ritchie could have immediately converted the drugs to his actual possession before or after he was nearthe bushes. He had no ability to exclude others from possessing the drugs underthe bushes in a public area. Even viewed in a lightmostfavorable to the State, there is no evidence or inference that Ritchie had dominion and control over eitherthe drugs orthe public area where the drugs were found. 

### The State relies upon State v. Hults28 and State v. Portrev.29 Butthose cases
are distinguishable. In Hults, the court held thatthe defendant constructively possessed drugs found in a house. Hults frequented the house for several days before police searched it. His vehicles and musical instruments were found on the premises. His personal correspondence (along with some drugs) and a marijuana handbookwere also found in the house. A large amount ofcash was found on Hults's person. Hults's fingerprints


### were found on drug packaging inthe house. The court concluded Hults had dominion 

### and control over the premises and thus constructivelypossessed the drugs.30 Unlike Hults. Ritchie's connection with the drugs found underthe bushes was minimal. The officers saw Ritchie by the bushes only once and only momentarily. No


### 28 9 Wn. App. 297, 513 P.2d 89 (1973). 29 102 Wn. App. 898, 10 P.3d 481 (2000). 30 Hults, 9 Wn. App. at 302-03.No. 71191-1-1/8 

### evidence suggests Ritchie had any otherconnection with the bushes where the drugs
were found. None ofRitchie's correspondence or personal items were found nearthe 

### drugs or underthe bushes. The containers were in a public area, not a house. Further, there was no fingerprint evidence connecting Ritchie withthe containers. 

### In Portrev, the court held that the defendant constructivelypossessed drugs in a field. Portrey was found near marijuana plants growing in a field. He tried to conceal himself from aerial police spotters bylying inbushes nearthe marijuana plants. He


### wore a camouflagejacketon a warm day. Hisresidence was 200 yards from the marijuana plants. Trails nearthe marijuana plants led to Portrey's residence. Police found blacktubing in his residence similarto that used around the base ofsome ofthe 

### marijuana plants. The court concluded a jury could reasonably inferthatthe defendant 

### constructivelypossessed the marijuana.31 Unlike Portrev. Ritchie's momentary proximity to the drugs, his knowledge ofthe containers' contents, and his attemptto conceal the containers do not establish dominion and control. The State argues there is a reasonable inference that Ritchie handled and 

### controlled the drugs and was not merely inclose proximity. Butany handling ofthe containers was fleeting, and any control was passing. The State cites no compelling authority that Ritchie had dominion and control ofthe drugs inthe containers. The State also argues Ritchie admitted inthe recordedjail phone call thatthe weed and hash were his. But the State fails to considerthe context. Inthe recordedjail phone call, Ritchie stated:



### 31 Portray, 102 Wn. App. at 904.

8No. 71191-1-1/9 [Rjemember how she told me there was six counts, she read six counts, I 

### kind ofswore, they said five counts ofpossession. The prosecutor said 

### it[,] then itcan only be fivecounts because there was only fiveprescription pills plus weed and marijuana, weed and hash and my weedand hash. 

### Dudeit's not. They can'teven use that in this court so that leaves fi[v]e.[32] Ritchie's statementcould hardly be more equivocal. Immediately after saying "my weed and hash," Ritchie said, "Dude it's not." Ritchie did not admit ownership. Evidence at trialrevealed that Ritchie had searched the Internet on his cellphone 

### to identify pills similar tothose found in the eyeglasses case. This evidence may support a reasonable inference that Ritchie knew the case's contents. But that 

### inference does not establish that Ritchie actually controlled the pills. The State contends the five text messages are consistentwith constructive possession. The text messages were admitted over ER 404(b) objections as evidence 

### of a common scheme orplan.33 The State nowconcedes that the textmessages did not evidence a common scheme or plan but qualifyas res gestae evidence, completing the story ofthe crime and providing contextto events close in time and place to the charged crimes. 

### We are especially troubled bythe prosecutor's argumentto the trial courtthatthe text messages should be admitted because "essentially we're calling the defendant a 

### drug dealer."34 "[Ejvidence that relies on the propensity of a person to commit a crime

32 RP (Oct. 15, 2013) at 241 (emphasis added). The record also includes a compact disk containing the recorded phone call. 

### 33 Ritchie's counsel at trialmade a comprehensive ER404(b) objection to the admission ofthe five text messages. 

### 34RP(Oct. 14, 2013) at 32.No. 71191-1-1/10


### cannotbe admitted to show action inconformitytherewith."35 The prosecutor's theory would gut the essential purpose of ER404(b).36 The textmessages are not admissible
on the theory that because Ritchie is a drug dealer, he must have possessed the drugs with the intentto deliverthem. Additionally, the May 3, 2013 text message was remote, 

### notwithin two orthree days of the May 17, 2013 events at issue.37 The May 12, 2013 text messages requesting and offering delivery ofEcstasy are not relevantto the charged crimes. Even assuming the May 15, 2013 text message referring to "product" and the May 17, 2013 text message referring to the pills as "money makers" are admissible as


### res gestae evidence, they do not establish Ritchie's dominion and control overthe drugs found underthe bushes in a public area. Those text messages at most provide circumstantial evidence of Ritchie's interest in selling pills but do not necessarily demonstrate his dominion and control overthe drugs inthe containers. Even when viewed inthe light mostfavorable to the State, a mere scintilla ofevidence connecting 

### Ritchie to the drugs does not support an inference of dominion and control.38



### 35 State v.Wade. 98 Wn. App. 328, 334, 989 P.2d 576 (1999). 36\± at 336 37 See State v. Brown. 132Wn.2d 529, 569-76, 940 P.2d 546 (1997) (evidence of similarevents occurring within a two-day period ofthe charged crime admissible under res gestae theory); State v. Lane, 125 Wn.2d 825, 833, 889 P.2d 929 (1995) (same). 38 See State v. Harris. 14 Wn. App. 414, 418, 542 P.2d 122 (1975) (deputy's 

### testimony that he obtained trunk keys from eitherthe husband orthe wifewas a mere "scintilla ofevidence" insufficientto establish dominion and control by the wife overthe trunk's contents).

10No. 71191-1-1/11

CONCLUSION 

### The State concedes that Ritchie did not actually possess the drugs and fails to establish constructive possession. There is no evidence or reasonable inference that Ritchie had more than mere proximity, momentary handling, or passing control ofthe drugs. His knowledge that drugs were present does not establish actual control. Ritchie did not have the ability to exclude others from the drugs inthe bushes in a public
area. The State provides no persuasive authority that Ritchie constructively possessed the drugs. We conclude there is insufficient evidence to support Ritchie's convictions for five counts ofpossession of a controlled substance. Consequently, we need not reach Ritchie's other assignments oferror. We reverse.

WE CONCUR: 

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