### FILED OCT 21, 2014 I n the Office ofthe Clerk ofCourt W A State Court ofAppeals, Division III

INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASINGTON, ) ) No. 31115-5-111 Respondent, ) ) v. ) ) BRIANM. PARKER, ) UNPUBLISHED OPINION ) Appellant. ) KORSMO,

### J.

- BrianParkerchallenges his conviction for possession of methamphetamine, arguing that the evidence was insufficient and that his possession was unwitting. The evidence supported thejury'sverdict. FACTS Mr. Parkerwas arrested afterofficers investigating another suspect witnessed him drive up to herresidence. Thetwo soon left and got into Mr. Parker's car. Priorto leaving, Mr. Parkerexited the driver's seat, accessed the trunkwith a key, and thenreturned to the driver's seat and drove off. Officers stoppedthe car to arrest thepassenger. While one officer arrestedher, the otherofficermade contact withMr. Parker. Theofficer smelled marijuana coming from thecar. Afterasking him to exit the vehicle, the officer smelledNo. 31115-5-111 State v. Parker marijuana onMr. Parker'sperson. Mr. Parkertold 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 blacktravel bag in the trunkthat contained methamphetamine. Mr. Parker was chargedwith one count ofpossession ofmethamphetamine. The
caseproceededto ajury trial. Although he did not testify, Mr. Parkerreceived ajury instruction on unwitting possession. (RP 210-11.) Thejury found Mr. Parker guilty as charged. He thentimely appealed tothis court. ANALYSIS Mr. Parker contends thatthere was insufficient evidence to support thejury's determination that hepossessed 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 thetruth 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 deferto the trier-of-fact on issues of

2No. 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. Parkerpossessed the methamphetamine. 1 Possession may be actual or constructive. "Actual possession means that the goods are in the personal custody ofthe person charged withpossession; 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.3d4lO (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 ofcontraband exists ifthe defendant had dominion and control
overthe contraband or overthe premises where it was found. ld. For purposes ofthis inquiry, a vehicle is a "premises." ld. Sufficient evidence ofconstructive possession

1 Unlawful possession ofa controlled substance does not have a knowledge element. State v. Bradshaw, 152 Wn.2d 528,538,98 P.3d 1190 (2004).

3No. 31115-5-111 State v. Parker (and dominion and control), exists when the defendant was either the owner ofthe premises or the driver/owner ofthe 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-includingthe trunk-thathe 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 ofthe vehicle. Sufficient evidence existed for thejuryto find Mr. Parker in constructive possession ofthe 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 ofits 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 offirearm, ownership of vehicle in which the firearm was found as well as close proximity to firearm, were sufficientto support possession notwithstanding someone else claimed ownership of firearm); State v. McFarland, 73 Wn. App. 57, 70, 867 P.2d 660 (1994) (knowing transportation ofguns 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).

4No. 31115-5-111 State 

### v. Parker
Mr. Parker also asserts that even ifthe State proved its case, he produced sufficient evidence to demonstrate that his possession was unwitting. Thejury disagreed, and so do
we. Unwittingpossession is an affirmative defense to unlawful possession ofa controlled substance. Bradshaw, 152 Wn.2d at 538. To avail himselfofthis defense, the defendant mustprove by apreponderance ofthe evidence thatpossession ofthe controlled substance was unwitting. State v. Buford, 93 Wn. App. 149, 152,967P.2d 548 (1998). Mr. Parkerbore the burden ofproving by apreponderance ofthe evidence that he did not know he was in possession ofthe methamphetamine or that he did notknow the nature ofthe 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 ofthe items inthe bag. Under these circumstances, itis difficult to understand why the trial court even gave the unwitting possession instruction. 

### It is quite understandable why thejury did not accept it. More to the point, this court simply is not in a positionto second guess the jury's decision notto find unwitting possession. The conviction is affirmed.



### 5No. 31115-5-111 State v. Parker
A majority ofthe panel has determined this opinion will notbe printed in the Washington Appellate Reports, but it will be filed for publicrecord pursuantto RCW 2.06.040.

WE CONCUR:

Brown, J.

# ~I 

# f!-J-- Siddoway, C.J.



### 6