FILED 


OCT 21, 2014 


I n the Office of the Clerk ofCourt 


W A State Court of Appeals, Division III 


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 


DIVISION THREE 


STATE OF WASINGTON, ) 

) No. 31115-5-111 

Respondent, ) 

) 

v. ) 

) 

BRIAN M. PARKER, ) UNPUBLISHED OPINION 

) 

Appellant. ) 

KORSMO, J. - Brian Parker challenges his conviction for possession of 

methamphetamine, arguing that the evidence was insufficient and that his possession was 

unwitting. The evidence supported the jury's verdict. 

FACTS 

Mr. Parker was arrested after officers investigating another suspect witnessed him 

drive up to her residence. The two soon left and got into Mr. Parker's car. Prior to leaving, 

Mr. Parker exited the driver's seat, accessed the trunk with a key, and then returned to the 

driver's seat and drove off. Officers stopped the car to arrest the passenger. While one 

officer arrested her, the other officer made contact with Mr. Parker. The officer smelled 

marijuana coming from the car. After asking him to exit the vehicle, the officer smelled 
No. 31115-5-111 

State v. Parker 

marijuana on Mr. Parker's person. Mr. Parker told the officer he had a marijuana pipe on 

him. He was placed under arrest. The police obtained a search warrant for the car and 

discovered a small black travel bag in the trunk that contained methamphetamine. 

Mr. Parker was charged with one count ofpossession of methamphetamine. The 

case proceeded to ajury trial. Although he did not testify, Mr. Parker received a jury 

instruction on unwitting possession. (RP 210-11.) The jury found Mr. Parker guilty as 

charged. He then timely appealed to this court. 

ANALYSIS 

Mr. Parker contends that there was insufficient evidence to support the jury's 

determination that he possessed methamphetamine. In the alternative, he contends that 

he demonstrated unwitting possession ofthe methamphetamine. These arguments are 

two sides ofthe same coin and we address them together. 

In determining whether evidence is sufficient to sustain a conviction, we review 

the evidence in the light most favorable to the State. State v. Wentz, 149 Wn.2d 342, 347, 

68 P.3d 282 (2003). The relevant question is "whether any rational fact finder could have 

found the essential elements ofthe crime beyond a reasonable doubt." Id. In claiming 

insufficient evidence, the defendant necessarily admits the truth ofthe State's evidence 

and all reasonable inferences that can be drawn from it. State v. Salinas, 119 Wn.2d 192, 

201,829 P.2d 1068 (1992). Appellate courts defer to the trier-of-fact on issues of 

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No. 31115-5-111 

State v. Parker 

conflicting testimony, credibility ofwitnesses, and the persuasiveness ofthe evidence. 

State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). 

The only element at issue is whether Mr. Parker possessed the methamphetamine. 1 

Possession may be actual or constructive. "Actual possession means that the goods are in 

the personal custody ofthe person charged with possession; whereas, constructive 

possession means that the goods are not in actual, physical possession, but that the person 

charged with possession has dominion and control over the goods." State v. Callahan, 

77 Wn.2d 27, 28, 459 P .2d 400 (1969). 

Dominion and control are determined by the totality ofthe circumstances; no 

single factor is dispositive. State v. Cote, 123 Wn. App. 546, 549,96 P.3d 4lO (2004). 

One aspect ofdominion and control is "the ability to reduce an object to actual 

possession." State v. Turner, 103 Wn. App. 515, 521, 13 P.3d 234 (2000). Additionally, 

constructive possession of contraband exists ifthe defendant had dominion and control 

over the contraband or over the premises where it was found. ld. For purposes ofthis 

inquiry, a vehicle is a "premises." ld. Sufficient evidence of constructive possession 

1 Unlawful possession of a controlled substance does not have a knowledge element. 

State v. Bradshaw, 152 Wn.2d 528,538,98 P.3d 1190 (2004). 

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No. 31115-5-111 

State v. Parker 

(and dominion and control), exists when the defendant was either the owner of the 

premises or the driver/owner of the vehicle where contraband was found. 2 

Here, Mr. Parker demonstrated the ability to reduce the methamphetamine to 

actual possessiQn. He possessed the keys to the car-including the trunk-that he drove 

to the scene. He was also seen accessing the trunk-where the methamphetamine was 

later found-just before he was stopped. His passenger was never seen possessing the 

bag or using the trunk. He also was the owner and operator of the vehicle. Sufficient 

evidence existed for the jury to find Mr. Parker in constructive possession of the 

methamphetamine. 

2 See Turner, 103 Wn. App. at 521 (Defendant's admission that he had been driving 

truck in which rifle was found in open case on back seat and that he knew rifle was there, 

together with other evidence that defendant was in close proximity to rifle, knew of its 

presence, was able to reduce it to his possession, owned and had been driving truck in 

which rifle was found, was sufficient to support constructive possession); State v. Bowen, 

157 Wn. App. 821, 828,239 P.3d 1114 (2010) (knowledge of firearm, ownership of 

vehicle in which the firearm was found as well as close proximity to firearm, were 

sufficient to support possession notwithstanding someone else claimed ownership of 

firearm); State v. McFarland, 73 Wn. App. 57, 70, 867 P.2d 660 (1994) (knowing 

transportation of guns in defendant's vehicle sufficient for constructive possession); 

State v. Reid, 40 Wn. App. 319, 326, 698 P .2d 588 (1985) (sufficient evidence existed 

where the defendant admitted having a pistol in his car and testified that he moved it to 

the back so it would not be seen by police who were pursuing him); State v. Echeverria, 

85 Wn. App. 777, 783, 934 P.2d 1214 (1997) (sufficient evidence existed where gun was· 

in plain sight at the defendant's feet and within his reach). 

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No. 31115-5-111 

State v. Parker 

Mr. Parker also asserts that even if the State proved its case, he produced sufficient 

evidence to demonstrate that his possession was unwitting. The jury disagreed, and so do 

we. 

Unwitting possession is an affirmative defense to unlawful possession of a 

controlled substance. Bradshaw, 152 Wn.2d at 538. To avail himself of this defense, the 

defendant must prove by a preponderance of the evidence that possession of the controlled 

substance was unwitting. State v. Buford, 93 Wn. App. 149, 152,967 P.2d 548 (1998). 

Mr. Parker bore the burden of proving by a preponderance ofthe evidence that he 

did not know he was in possession of the methamphetamine or that he did not know the 

nature of the substance within the travel bag. Mr. Parker did not take the stand, nor did 

he produce any witnesses to testify that he did not know the nature of the items in the 

bag. Under these circumstances, it is difficult to understand why the trial court even gave 

the unwitting possession instruction. It is quite understandable why the jury did not 

accept it. More to the point, this court simply is not in a position to second guess the 

jury's decision not to find unwitting possession. 

The conviction is affirmed. 

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No. 31115-5-111 

State v. Parker 

A majority of the panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to 

RCW 2.06.040. 

WE CONCUR: 

Brown, J. 

~I f!-J-- Siddoway, C.J. 

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