State v. Knapstad, 15123-1-I

• Decision Date: 16 September 1985
• Docket Number: No. 15123-1-I,15123-1-I
• Citation: 706 P.2d 238,41 Wn.App. 781
• Parties: STATE of Washington, Appellant, v. Douglas W. KNAPSTAD, Respondent.
• Court: Washington Court of Appeals

Page 781

41 Wn.App. 781

706 P.2d 238

STATE of Washington, Appellant, v. Douglas W. KNAPSTAD, Respondent.

No. 15123-1-I.

Court of Appeals of Washington,

Division 1.

Sept. 16, 1985.

Review Granted Dec. 19, 1985.

Seth Dawson, Snohomish County Pros. Atty., Everett (Court-appointed), for appellant.

Washington Appellate Defender Dori Jones and Julia A. Kesler, Seattle (Court-appointed), for respondent.

GROSSE, Judge.

Douglas W. Knapstad was charged by information with possession of a controlled substance with intent to manufacture and deliver. The State sought to prove the crime by establishing constructive possession by Knapstad of the premises where the marijuana was seized. The seizure was the result of execution of a valid search warrant. An informant had supplied information which formed the basis for probable cause for the search warrant. The State decided not to call this informant as a witness and decided not to disclose the name and address of the informant to the defense.

Upon motion by defendant, the trial court dismissed the information. At the hearing on the motion the State made the following offers of proof:

(1) Detective Miller would testify that he personally conducted surveillance on the premises prior to February 22, 1984; that a car known to be driven by Knapstad was located at the premises; and that he observed the car at the premises on three different occasions at 2 a.m. and 11 a.m. Detective Miller would testify that he did not observe the car all night long on these three occasions. He would testify that on February 22, 1984 he searched the premises and found 160 grams of marijuana in the attic, and drug paraphernalia in common areas.

(2) The premises were rented to Knapstad's brother.

(3) One gasoline credit card receipt issued to Douglas Knapstad was found in a dresser drawer in a bedroom of the premises. This receipt reflects an address for Knapstad that is different from the address of the premises.

(4) One traffic ticket issued to Knapstad was found in a common area of the house. This traffic ticket reflects an address for Knapstad which is different from that of the premises where the marijuana was found.

The main issue raised by the State is whether the trial court had authority to dismiss the information prior to trial. The State also argues that there was sufficient evidence to allow the case to go to the jury on the question of whether Knapstad was in constructive possession of the marijuana.

Assuming the trial court had authority to dismiss the information, the order of dismissal can be reviewed only for manifest abuse of discretion. State v. Dailey, 93 Wash.2d 454, 610 P.2d 357 (1980) (citing State v. Burri, 87 Wash.2d 175, 550 P.2d 507 (1976), and State v. Sulgrove, 19 Wash.App. 860, 578 P.2d 74 (1978)). To reverse we must find that the trial court's exercise of discretion was manifestly unreasonable or exercised on untenable grounds, or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wash.2d 12, 26, 482 P.2d 775 (1971). We hold that the court did not abuse its discretion in dismissing the information on grounds of insufficient evidence to prove constructive possession.

Constructive possession is established by proof that defendant had dominion and control over the premises where the drugs are found. State v. Callahan, 77 Wash.2d 27, 31, 459 P.2d 400 (1969). The evidence of dominion and control in this case was Detective Miller's observations of three visits by Knapstad to the premises and the presence of a gasoline credit card and traffic ticket issued to Knapstad at a different address. The drugs were found in the attic, not in the common area, and the premises were rented to Knapstad's brother. The informant's testimony is not before us because the State chose not to call the informant as a witness and would not disclose his name and address. A comparison of this case with the signal case of State v. Callahan, supra, persuades us that there was insufficient evidence to prove constructive possession of the premises. ¹

We are further persuaded that the trial court did not abuse its discretion in light of the tests set forth in State v. Randecker, 79 Wash.2d 512, 487 P.2d 1295 (1971), and State v. Green, 94 Wash.2d 216, 616 P.2d 628 (1980). The Randecker test for granting a motion in arrest of judgment is whether there is substantial evidence from which the jury could reasonably conclude that there was some proof of the elements of the crime. The Green test for appellate review of sufficiency of evidence in a criminal case is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Viewing the evidence of Knapstad's constructive possession in the light most favorable to the prosecution, we cannot conclude that there is substantial evidence from which a jury could find some proof of constructive possession nor can we conclude that from this evidence a rational juror could find constructive possession by Knapstad beyond a reasonable doubt.

The central issue in this appeal is the authority of the trial court to dismiss an information on a pretrial motion for insufficiency of the evidence. The trial court dismissed the information pursuant to CrR 8.3(b) which allows a court to dismiss a case "in the furtherance of justice". The State argues that the court has no authority to review a prosecutorial decision to charge and that the sufficiency of evidence is for the trier of fact to determine. Although there is no established practice or rule specifically providing for pretrial challenges to the sufficiency of the State's evidence, we hold, on the basis of the facts of this case, that the trial court had inherent authority to dismiss the Knapstad information.

Despite the State's argument to the contrary, the Washington Supreme Court has often stated that while the prosecutor is vested with broad discretion as to whether or not to charge a person with a crime, he or she is not without standards. State ex rel. Schillberg v. Cascade District Court, 94 Wash.2d 772, 780, 621 P.2d 115 (1980). An example of a charging standard is set forth in State v. Pettitt, 93 Wash.2d 288, 609 P.2d 1364 (1980), where the Supreme Court reviewed a prosecutor's charging decision in a habitual criminal case. The Court reversed the conviction on grounds that the prosecutor did not consider mitigating facts before filing a complaint.

The principal standard for the charging decision is the prosecution's ability to prove all elements of the charge. United States v. Lovasco, 431 U.S. 783, 790-91, 97 S.Ct. 2044, 2048-49, 52 L.Ed.2d 752, 759-60 (1977); State v. Campbell, 103 Wash.2d 1, 691 P.2d 929 (1984); State v. Judge, 100 Wash.2d 706, 713, 675 P.2d 219 (1984); State ex rel. Schillberg, supra; State v. Lee, 87 Wash.2d 932, 934, 558 P.2d 236 (1976); State v. Canady, 69 Wash.2d 886, 891, 421 P.2d 347 (1966). This requirement of ability to prove the crime is also set forth in standard 3-3.9 of the American Bar Association standards on the prosecution function.

It is unprofessional conduct for a prosecutor to institute, or cause to be instituted, or to permit the continued pendency of criminal charges when it is known that the charges are not supported by probable cause. A prosecutor should not institute, cause to be instituted, or permit the continued pendency of criminal charges in the absence of sufficient admissible evidence to support a conviction.

1 American Bar Ass'n, Standards for Criminal Justice, Std. 3-3.9(a) (2d ed. 1980).

Cr.R 8.3(b) has been interpreted to require that dismissal be based on a showing of arbitrary action or governmental misconduct. State v. Whitney, 96 Wash.2d 578, 637 P.2d 956 (1981); State v. Starrish, 86 Wash.2d 200, 544 P.2d 1 (1975); State v. Boldt, 40 Wn.App. 798, 700 P.2d 1186 (1985). However, the authority of a trial court to dismiss an information on the basis of insufficient evidence is inherent and distinct from the authority to dismiss upon a showing of arbitrary action. Therefore, we do not have to decide whether the prosecutor acted arbitrarily by prosecuting Knapstad without sufficient evidence. ²

Washington appellate courts have upheld the inherent authority of the trial court to dismiss for insufficiency of the charge. In State ex rel. Clark v. Hogan, 49 Wash.2d 457, 303 P.2d 290 (1956), the Supreme Court upheld dismissal of an illegal hunting complaint after the State refused to make the complaint more definite and certain. In State v. Maurer, 34 Wash.App. 573, 663 P.2d 152 (1983), the Court of Appeals held that a trial court has inherent power to dismiss criminal charges...