State v. Perry, 2047--I

• Decision Date: 10 December 1973
• Docket Number: No. 2047--I,2047--I
• Citation: 516 P.2d 1104,10 Wn.App. 159
• Parties: STATE of Washington, Respondent, v. Arthur PERRY, Appellant.
• Court: Washington Court of Appeals

Page 159

10 Wn.App. 159

516 P.2d 1104

STATE of Washington, Respondent, v. Arthur PERRY, Appellant.

No. 2047--I.

Court of Appeals of Washington, Division 1.

Dec. 10, 1973.

Review Denied April 30, 1974.

Richard B. Sanders, Seattle (Court Appointed), for appellant.

Christopher T. Bayley, King Co. Pros. Atty., Charles E. Yates, Deputy Pros. Atty., Seattle, for respondent.

HOROWITZ, Judge.

Defendant Arthur Perry appeals his conviction after jury trial for violating the Uniform Controlled Substances Act--Possession of Heroin with Intent to Deliver. He appeals. We affirm.

The controlling facts are these. On August 11, 1972, Seattle police officers served a warrant on defendant to search apartments Nos. 203 and 204 and a storage closet near the main entrance of the Royal Crest apartment house, 1820--24th Avenue, Seattle. The defendant owned and managed the building and resided in apartment No. 203. At the time of the search, the defendant stated that he had the only key to apartment No. 204.

As a result of the search of apartment No. 203, a condom and a balloon were found. Both contained a residue of a substance which when tested was found to have been consistent with heroin but was of insufficient quantity to positively identify. While searching apartment No. 204, the officers found balloons and spoons containing heroin, a tightly wrapped condom also containing heroin, a paper bag containing receipts and other papers bearing the defendant's name, and a sawed-off shotgun. The defendant's receipt book was also found. Officer Murphy testified that he was not sure whether the receipt book was taken from apartment No. 203 or 204, but understood it to have come from apartment No. 204 since it was packaged with the other items taken from that apartment. Each of the items found, with the exception of the shotgun, was admitted into evidence. Defendant testified that apartment No. 204 had been vacant for 3 weeks since the last tenant moved out, and he did not know that the heroin found was in the vacated apartment.

The defendant was sentenced upon conviction to 20 years in prison--double the normal sentence--because of a prior conviction in a drug-related offense on appeal at the time of sentencing. Defendant's appeal in this case followed.

Defendant contends the court erred in denying his motion to dismiss the state's case because of insufficient evidence of constructive possession of the heroin to go to the jury. We are not called upon by defendant to determine the sufficiency of evidence concerning his 'intent to . . . deliver' and, accordingly, limit ourselves to the issue of constructive possession. RCW 69.50.401 makes it unlawful 'for any person to . . . possess with intent to .. . deliver, a controlled substance.' Heroin is such a substance. RCW 69.50.204(c)(10). We are called upon here to apply the word 'possess' in the sense intended by the legislature. See generally R. Dias, Jurisprudence 333--360 (3d ed. 1970); G. Paton, A Text-Book of Jurisprudence 499--534 (3d ed. D. Derham 1964).

The possession prohibited by RCW 69.50.401 is either possession or custody in fact, or possession in law, I.e., constructive possession. Defendant argues he had neither possession in fact nor in law of the heroin found in apartment No. 204, first, because he had no dominion and control over the heroin, and, secondly, because he had no actual knowledge of its presence in that apartment. We find neither argument persuasive. Constructive possession means 'that the one not in actual possession still has dominion and control over the goods.' State v. Cabigas, 3 Wash.App. 740, 743, 477 P.2d 648, 650 (1970). The court in State v. Callahan, 77 Wash.2d 27, 30--31, 459 P.2d 400 (1969), after reviewing the Washington cases on constructive possession, concluded 'that in each instance there is evidence that the defendant was in dominion and control of either the drugs or the premises on which the drugs were found.' In the course of its opinion, the court in Callahan summarized the holding in State v. Weiss, 73 Wash.2d 372, 438 P.2d 610 (1968), as follows:

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.

77 Wash.2d at 30, 459 P.2d at 402. See also State v. Parent, 123 Wash. 624, 212 P. 1061 (1923); State v. Dodd, 8 Wash.App. 269, 505 P.2d 830 (1973); State v. Potts, 1 Wash.App. 614, 464 P.2d 742 (1969). The evidence here showed defendant was purchasing the Royal Crest apartment house and was managing it from apartment No. 203 occupied by him. He had the only key to apartment No. 204 across the hall from apartment No. 203. The evidence described was sufficient to raise a rebuttable presumption of dominion and control of the contents of apartments No. 203 and 204.

Defendant also contends the state failed to prove he had constructive possession of the heroin in apartment No. 204 because the state failed to prove he actually knew of the heroin. Whether such knowledge need be proved to establish an intent to deliver the object constructively possessed is a separate matter neither argued nor presented for decision. The state relied upon the presumption of possession of the heroin arising from its proof defendant had dominion and control of the premises on which the heroin was found. The presumption necessarily covered the constituent elements making up the constructive possession, namely, custody and intent to possess. The intent to possess may be a general intent without actual knowledge of the existence of the object possessed. J. Salmond, Jurisprudence § 97, at 300 (7th ed. 1924), explains the intent to possess

need not be specific, but may be merely general. That is to say, it does not necessarily involve any continuous or present knowledge of the particular thing possessed or of the possessor's relation to it. A general intent with respect to a class of things is sufficient (if coupled with the necessary physical relation) to confer possession of the individual objects belonging to that class, even though their individual existence is unknown. Thus I possess all the books in my library, even though I may have forgotten the existence of many of them. . . . So I have a general purpose to possess my flocks and herds, which is sufficient to confer possession of their increase though unknown to me. So if I receive a letter, I have forthwith the Animus possidendi with respect to its enclosure; and I do not first acquire possession of the cheque that is inside it, when I open the envelope and see it . . .

See also J. Salmond, Jurisprudence § 53, at 278--79 (12th ed. P. Fitzgerald 1966), cited in State v. Cabigas, Supra.

In Washington, when the crime charged is possession of prohibited drugs, the charge is proved without the necessity of proving defendant's knowledge of the existence of the drugs deemed possessed. State v. Singleton, 9 Wash.App. 327, 511 P.2d 1396 (1973); State v. Dodd, Supra. It is true defendant may affirmatively defend against the charge by showing the possession ascribed to him was unwitting, or the duration of that possession was so momentary that it could not be fairly said the defendant had an intent to possess. See State v. Gerke, 6 Wash.App. 137, 491 P.2d 1316 (1971). The fact that an unwitting or momentary possession is a defense suggests that knowledge of the existence of the subject matter is in fact an ingredient of constructive possession regardless of the order of proof. However, being an affirmative defense, it is one which if not believed does not serve to rebut the presumption of possession on which the state relies. State v. Dodd, Supra. With a presumption in the case, the state's case of constructive possession is prima facie made out--and this without the necessity of proving actual knowledge of the thing possessed.

Assuming arguendo actual knowledge of the heroin must be shown before constructive possession of the heroin may be said to exist, there is sufficient circumstantial evidence from which the jury could find defendant had the required actual knowledge. Defendant had the only key to apartment No. 204; the apartment was vacant for 3 weeks prior to the time the officers discovered the heroin in that apartment; there is no evidence anyone broke into the apartment during that period of time; the paper bag containing receipts and other papers bearing the defendant's name, and defendant's receipt book were found in that apartment; defendant, although testifying, did not disclaim ownership of a sawed-off shotgun found in that same apartment. The 3-week period between the date the prior tenant left and the date the heroin was discovered by the officers, especially when considered together with the other circumstances described, was a period long enough from which the jury could reasonably infer defendant knew of the existence and presence of the heroin. See State v. Gerke, Supra.

Defendant inferentially suggests the heroin was left in the apartment by the prior tenant. However, the jury were not compelled to draw that inference. The heroin had substantial value. The jury could have believed the tenant would not have left the heroin behind when his tenancy terminated; that if the heroin had been secreted by the tenant in the hem of the curtain, the tenant would have found some excuse to come back to regain the heroin, surreptitiously or otherwise. There is no evidence he did so.

The state having made a prima facie case of constructive possession, the court correctly instructed the jury the defendant had the burden of going forward with evidence to show his constructive possession was an unwitting or lawful one. Instruction No. 7. Until the prima facie case of constructive possession was overcome, it remained in the case. See instruction No. 4; State v. Morris, 70 Wash.2d 27, 422 P.2d...