State v. Mathews
| Decision Date | 09 April 1971 |
| Docket Number | No. 261,261 |
| Parties | The STATE of Washington, Respondent, v. Howard D. MATHEWS, Appellant. (41544)--II. |
| Court | Washington Court of Appeals |
D. L. Donaldson, appointed, of Walstead, Mertsching, Husemoen & Donaldson, Longview, for appellant.
Henry R. Dunn, Pros. Atty., Kelso, for respondent.
Defendant, Howard D. Mathews, was found guilty by a jury, of possession of heroin, a narcotic drug, and grand larceny. He appeals from the judgment entered upon the jury verdict.
Defendant's counsel concedes that any appeal from the grand larceny conviction would be frivolous and without merit. In accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), he discusses the two matters which might arguably support an appeal. We have reviewed the record and agree that no meritorious issues are presented in the record as to the grand larceny conviction. See State v. Mathews, 4 Wash.App. 506, 482 P.2d 812 (1971), a companion case involving the same crime and the same legal issues as to the grand larceny count.
Since the heroin was not found on the person of the defendant, the sole issue in this appeal is whether the defendant had constructive possession of the heroin. This requires a determination of whether he exercised dominion and control over that part of the automobile in which the heroin was found. See State v. Potts, 1 Wash.App. 614, 464 P.2d 742 (1969).
On the date of the arrest, the defendant and his brother were at a house in Portland, Oregon, where heroin was sold. The defendant testified that he purchased a bag of heroin and injected the contents into his veins. While at this residence the defendant met David and Angela Domeier, with whom he had been acquainted. The Domeiers brought several balloon bags of heroin and 'shot up.'
The Domeiers then asked the defendant and his brother if they would accompany them on a trip to the state of Washington. Although the testimony as to the purpose of the trip was in conflict, David Domeier testified that it was understood they were driving to Washington to 'make money.' All four left in David Domeier's automobile, the Domeiers occupying the front seat and the Mathews brothers in the back seat, with Howard seated on the right side.
Their trip eventually brought them to Sinnett's Thriftway grocery store in Longview, Washington. David Domeier 'tapped' the till of an unattended check stand while the other three served as 'blockers' by diverting the attention of the only clerk on duty at the moment. After the 'till tapping' was discovered, the four were apprehended by the police. The Domeier car was stopped and a police officer asked the suspects to follow him to the Longview Police Station.
At the station, all four suspects were interrogated about the 'till tap.' David Domeier gave the officers permission to search his automobile. The officers found a small paper package containing a balloon capsule filled with heroin underneath the carpet near the right back seat of the car. In an empty space beneath the right back seat, the officers also found a brown paper bag containing a number of syringes and two small balloons containing methapyrilene and lactose, two adulterants for diluting heroin before it is injected into the veins. The right back seat of the car had been occupied by the defendant since the foursome had left Portland.
Before trial the Domeiers pleaded guilty to both the grand larceny and possession of narcotics charges. Both Howard and Hubert Mathews were charged with grand larceny and possession of narcotics. However, at the trial, the trial court instructed the jury to return a verdict of not guilty in favor of Hubert B. Mathews as to the possession of narcotics charge.
We shall first consider the law relating to possession of narcotic drugs. Possession of narcotic drugs may be either actual or constructive. Actual possession is proved when the drugs are found to be in the actual, physical custody of the person charged with possession. Constructive possession is proved when the person charged with possession has dominion and control over either the drugs or the premises upon which the drugs were found. State v. Callahan, 77 Wash.Dec.2d 26, 459 P.2d 400 (1969).
In State v. Potts, Supra, we held that an automobile may be considered a 'premises' for the purpose of determining whether the defendant exercised dominion and control over the premises where the narcotic drugs were found. Whether a passenger's occupancy of a particular part of automobile would constitute dominion and control of either the drugs or the area in which they are found would depend upon the particular facts in each case. Mere proximity to the drugs is not enough to establish constructive possession--it must be established that the defendant exercised...
To continue reading
Request your trial
-
State v. Jimenez–Macias
...that he had dominion and control over them. State v. Jeffrey, 77 Wash.App. 222, 227, 889 P.2d 956 (1995); State v. Mathews, 4 Wash.App. 653, 656, 484 P.2d 942 (1971). “Exclusive control is not necessary to establish constructive possession, but mere proximity to [the item] is insufficient.”......
-
State v. Davis
...touching on dominion and control. State v. Jeffrey, 77 Wash.App. 222, 227, 889 P.2d 956 (1995); see also State v. Mathews, 4 Wash.App. 653, 656, 484 P.2d 942 (1971). Dominion and control over premises raises a rebuttable presumption of dominion and control over objects in the premises. Stat......
-
State v. Huff
...when he "has dominion and control over either the drugs or the premises upon which the drugs were found." State v. Mathews, 4 Wash.App. 653, 656, 484 P.2d 942 (1971). A vehicle is a "premises" for purposes of this inquiry. State v. Mathews, Here, the State produced evidence to show that Huf......
-
State v. Thornton, No. 36379-8-II (Wash. App. 4/21/2009)
...or the area in which the police discovered a controlled substance depends upon the particular facts in each case. State v. Mathews, 4 Wn. App. 653, 656, 484 P.2d 942 (1971) (citing State v. Potts, 1 Wn. App. 614, 464 P.2d 742 (1969)). But mere proximity to a controlled substance is not enou......