State v. Davis, 1765--III

Citation558 P.2d 263,16 Wn.App. 657
Decision Date04 January 1977
Docket NumberNo. 1765--III,1765--III
PartiesSTATE of Washington, Respondent, v. Michael Vern DAVIS, Appellant.
CourtCourt of Appeals of Washington

Daniel W. Clark, Ringhoffer & Clark, Walla Walla, for appellant.

Arthur R. Eggers, Pros. Atty., John S. Biggs, Deputy Pros. Atty., Walla Walla, for respondent.

SHIELDS, Judge.*

Michael V. Davis appeals from a conviction of felony possession of a controlled substance, marijuana, RCW 69.50.401, and from a conviction of contributing to the delinquency of a minor, RCW 13.04.170. Reversed as to both counts.

As to the conviction of felony possession of a controlled substance, the defendant asserts three errors. The first attacks the validity of the search warrant. The second challenges the sufficiency of evidence of constructive possession based on dominion and control of the premises searched. The third challenges the sufficiency of evidence to establish the quantity of marijuana in excess of 40 grams. Because of our disposition on the second asserted error, it is unnecessary to deal with the first and third.

The record reflects that a party, involving approximately 20 people, was in progress at premises located at 302 W. Fourth Street, Waitsburg, Washington, in the late evening of November 15, 1974. During its progress, the Chief of Police and a sheriff's deputy entered the premises with a search warrant in the early morning hours of November 16, 1974. Both alcohol and marijuana were found on the premises. Three juveniles were present in the living room, together with Mr. Bradley Barton who owned the house, and Vicki Richter, a permanent resident. Defendant's vehicle was parked outside the house and he was found lying down in one of the bedrooms on the main floor of the house normally occupied by Mr. Barton and Miss Richter. No marijuana was found on defendant's person, or in the room in which he was sleeping, or in any of his belongings on the premises.

Earlier on November 15, 1974, defendant was stopped for a traffic violation in the town of Dayton, Washington, by State Patrol Trooper Goble. Defendant's driver license showed a Dayton address of 42 1/2 Washington Street, but defendant told Trooper Goble he was temporarily living in Waitsburg at a house on Fourth Street, whose house number he did not know. The Trooper used the Dayton address in issuing a warning ticket.

From October, 1974, to the night of the arrest, the defendant had been living with his mother at 1408 South Fifth Street in Dayton, Washington, and was residing there at the time of trial. The defendant also had stayed on occasion with his stepmother at 711 East Dayton Street in Dayton. It was this address defendant used on the date of his arrest. On the weekend in question, defendant's mother asked him to stay with a friend as she was expecting company.

Defendant had stayed at the Barton residence previously and kept a sleeping bag there which he rolled out on a couch in the living room. Some of his clothing was set in a pile on one side of the bedroom in which he was found at the time of arrest. After the entry and search by the officers, those not residing in the house were asked to leave. Five people remained: Mr. Barton, the owner; Vicki Richter, the permanent resident; Mr. Carter and Miss Snyder, who occupied the upstairs room, and the defendant.

As a matter of law, one cannot have constructive possession of marijuana found in a house predicated upon his mere presence therein. There must be a showing of dominion and control by him of the premises themselves. State v. Mathews, 4 Wash.App. 653, 656, 484 P.2d 942 (1971). Such possession and control of premises need not be exclusive, 1 but may be inferred from such circumstances as payment of rent, 2 or possession of keys. 3 Absent evidence of actual possession of the controlled substance 4 or of participation in its processing, 5 even additional facts of temporary residence, personal possessions in the premises, or knowledge of the presence of controlled substances are insufficient to show dominion and control of the premises, State v. Callahan, 77 Wash.2d 27, 459 P.2d 400 (1969). There is no evidence here of actual possession of the marijuana, and the evidence is insufficient to show dominion and control over the premises. Therefore, the defendant's conviction for felony possession of a controlled substance must be reversed.

As to the conviction for contributing to the delinquency of a minor, defendant asserts a lack of evidence that he in any manner willfully encouraged, caused, or contributed to the delinquency of the three minor girls. We agree. When the police entered the premises they identified three girls as minors, two of whom were drinking beer in the living room. There was half a...

To continue reading

Request your trial
32 cases
  • State v. Jacobs, No. 28384-1-II
    • United States
    • Court of Appeals of Washington
    • March 23, 2004
    ...and control necessary to establish constructive possession of the drug. 36 Wash.App. at 49, 671 P.2d 793 (citing State v. Davis, 16 Wash.App. 657, 558 P.2d 263 (1977)). But her proposed instruction was a hybridization of Hystad's proper jury instruction, instead The fact of temporary reside......
  • State v. Hansen, s. 21016
    • United States
    • Supreme Court of Utah
    • January 20, 1987
    ...Brown v. State, 481 P.2d 475 (Okl.Crim.App.1971); State v. Hystad, 36 Wash.App. 42, 671 P.2d 793 (1983); State v. Davis, 16 Wash.App. 657, 558 P.2d 263, 264 (1977).9 State v. Fox, 709 P.2d at 319. See also Whitebread & Stevens, Constructive Possession in Narcotics Cases: To Have and Have No......
  • State v. George, 59624-1-I.
    • United States
    • Court of Appeals of Washington
    • October 13, 2008
    ...the drug. We have held that knowledge of the presence of marijuana is insufficient to prove dominion and control. State v. Davis, 16 Wash.App. 657, 659, 558 P.2d 263 (1977). ¶ 37 On the spectrum of cases with Callahan and Spruell at one end and Mathews at the other, these facts are closer t......
  • State v. Storey, 2009-178-C.A.
    • United States
    • United States State Supreme Court of Rhode Island
    • December 3, 2010
    ...a single-family residence and there was no indication that Storey lacked control over the entire premises. See State v. Davis, 16 Wash.App. 657, 558 P.2d 263, 264-65 (1977) ( "[P]ossession and control of premises need not be exclusive, but may be inferred from such circumstances as payment ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT