State v. Callahan, 40020

• Decision Date: 02 October 1969
• Docket Number: No. 40020,40020
• Court: Washington Supreme Court
• Parties: The STATE of Washington, Respondent, v. Cheryl Lee CALLAHAN, Larry Edwin Donlan, Defendants, Michael Anthony Hutchinson, Appellant.

Page 27

77 Wn.2d 27

459 P.2d 400

The STATE of Washington, Respondent, v. Cheryl Lee CALLAHAN, Larry Edwin Donlan, Defendants, Michael Anthony Hutchinson, Appellant.

No. 40020.

Supreme Court of Washington, Department 2.

Oct. 2, 1969.

Kroum, Bass & Mack, Gary F. Bass, Seattle, for appellant.

Charles O. Carroll, Pros. Atty., Robert E. Dixon, Deputy Pros. Atty., Seattle, for respondent.

NEILL, Judge.

Defendant, Michael Anthony Hutchinson, was found guilty by a jury of violating the Uniform Narcotic Drug Act and illegally possessing dangerous drugs. He appeals from the judgment entered upon the jury verdict. (Codefendants Cheryl Lee Callahan and Larry Edwin Donlan do not join in the appeal.)

On the evening of February 3, 1967, members of the Seattle Police Department and federal officers, armed with a search warrant, went to a houseboat in Seattle. One of the officers knocked on the door and asked if 'Larry was there.' The door was opened slightly and when someone inside attempted to close it, the officers pushed open the door, announced who they were, why they were there, and entered the houseboat. The search warrant was then served on the tenant of the houseboat, Cheryl Callahan. When the officers entered the living room, they found the defendant and Larry Donlan sitting at a desk on which were various pills and hypodermic syringes. A cigar box filled with various drugs was on the floor between the two men. Other drugs were found in the kitchen and bedroom of the premises.

Defendant admitted that two guns, two books on narcotics and a set of broken scales of a type which could be used for measuring drugs, if operable, found in the houseboat belonged to him. He further admitted that he had actually handled the drugs earlier that day. He first stated, at the time of his arrest, that he had stayed on the houseboat for 2 or 3 days prior to the time of his arrest, but at trial denied that he lived there.

Defendant alleges error in the admissibility of certain items of evidence on grounds of irrelevancy and unlawful search and seizure. However, in view of ou disposition of his assignment of error to the trial court's failure to dismiss for insufficiency of the evidence, we do not reach the suppression of evidence and other trial rulings issues. Our reading of the record convinces us that there was not sufficient evidence that defendant was in possession of narcotics and drugs to permit the jury to reach a guilty verdict.

Possession of property may be either actual or constructive. Actual possession means that the goods are in the personal custody of the 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. Walcott, 72 Wash.2d 959, 435 P.2d 994 (1967).

In order for the jury to find the defendant guilty of actual possession of the drugs, they must find that the drugs were in the personal custody of the defendant. There was no evidence introduced that the defendant was in physical possession of the drugs other than his close proximity to them at the time of his arrest and the fact that the defendant told one of the officers that he had handled the drugs earlier. Since the drugs were not found on the defendant, the only basis on which the jury could find that the defendant had actual possession would be the fact that he had handled the drugs earlier and such actions are not sufficient for a charge of possession since possession entails actual control, not a passing control which is only a momentary handling. See United States v. Landry, 257 F.2d 425, 431 (7th Cir.1958).

Consequently, the validity of the defendant's conviction rests on whether there was sufficient evidence for the jury to find, beyond a reasonable doubt, that the defendant had constructive possession of the drugs. There must be substantial evidence to show that he had dominion and control over the drugs.

We discussed constructive possession in State v. Weiss, 73 Wash.2d 372, 438 P.2d 610 (1968), wherein we affirmed the conviction of the defendant on the charge of possession of marijuana, when the evidence showed that the defendant had been living on the premises for about a month, had stated that he and the other resident were sharing the rent and that not only had the defendant brought furniture into the house but had invited others to spend the night. We held that there was sufficient evidence of the defendant's dominion and control over the premises to find him guilty of constructive possession of the marijuana found in the living room of the house although the defendant denied any knowledge of its presence.

The question was also raised in State v. Chakos, 74 Wash.Dec.2d 156, 443 P.2d 815 (1968). The defendant and her husband had rented a house and sublet some of the rooms. Drugs were found not only in the sublet rooms, but throughout the house. Defendant denied knowledge of the drugs and argued that there was insufficient evidence to find her guilty of possession. The evidence showed, however, that she and her...