State v. Porter, 22465-4-I

• Citation: 58 Wn.App. 57,791 P.2d 905
• Decision Date: 29 May 1990
• Docket Number: No. 22465-4-I,22465-4-I
• Parties: STATE of Washington, Respondent, v. Conway PORTER, Jr., Appellant.
• Court: Washington Court of Appeals

Page 57

58 Wn.App. 57

791 P.2d 905

STATE of Washington, Respondent, v. Conway PORTER, Jr., Appellant.

No. 22465-4-I.

Court of Appeals of Washington,

Division 1.

May 29, 1990.

Marc Lampson, Washington Appellate Defender, for Conway Porter, Jr.

Norm Maleng, Pros. Atty., and Barbara A. Mack, Deputy Pros. Atty., King County, for State.

PER CURIAM.

Conway Porter, Jr. (Porter) appeals his conviction of a violation of the Uniform Controlled Substances Act, possession with intent to deliver cocaine. Pursuant to RAP 18.14, this court set a motion on the merits to affirm the decision of the trial court. The matter has been referred to a panel of this court for consideration on the merits. We accelerate review pursuant to RAP 18.12 and affirm the decision of the trial court.

FACTS

Shortly before midnight on June 4, 1987, Seattle police officers executed a search warrant on a residence located at 822 South Cloverdale in Seattle. After one of the officers rang the doorbell, the door opened for a moment and then slammed shut. The police immediately forced the door open and rushed into the residence shouting "police". According to police, Porter, who was seated with another man at the kitchen table at the time, stood up and pointed a .357 magnum revolver at one of the onrushing officers. Porter thereafter dropped the weapon, fled into the living room, and was arrested.

At the time of his arrest, Porter was carrying $693 in cash. Police also recovered a pill bottle containing 16 bindles of white substance, later identified as cocaine, on the kitchen floor near where Porter had been sitting. The pill bottle was found within a few feet of where Porter dropped the gun. Other empty paper bindles with numerical markings on them were found in a garbage pail in the kitchen. On the kitchen table, papers containing the record of suspected drug sales were also seized by police. Porter was subsequently charged with possession of cocaine with intent to manufacture or deliver, a violation of the Uniform Controlled Substances Act.

At trial, Porter moved to dismiss the charge against him on the ground that there was insufficient evidence that he had actual or constructive possession of the drugs. The motion was denied. A Seattle police officer testified that Porter pointed a .357 magnum revolver at him, dropped the firearm and then Porter and the other man ran from the kitchen into the living room of the residence where they were subsequently apprehended. Porter testified on his own behalf. He admitted being in the residence at the time of the forced entry by police and having the firearm in his possession but denied pointing the revolver at the police officer or attempting to flee from police. Porter also admitted having $693 in his possession. He testified that he possessed such a large sum of cash because he had recently cashed checks from the Veteran's Administration and the Social Security Administration. These claims were disputed in varying degrees by witnesses employed by the Social Security Administration and the Veteran's of Foreign Wars.

At the close of all the evidence, the trial court refused to give Porter's proposed instruction on constructive possession. The jury found Porter guilty as charged. Porter appeals, raising two issues.

DECISION

Initially, Porter contends that the trial court erred in denying his motion to dismiss. Porter challenges the sufficiency of the evidence to establish that he possessed the cocaine. Since other people were discovered inside the residence and mere proximity to the drugs alone is insufficient to show that he had dominion and control over the drugs, Porter argues that the State failed to prove the possession element of the crime charged.

The test for determining the sufficiency of the evidence is "whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." State v. Grover, 55 Wash.App. 923, 930, 780 P.2d 901 (1989); State v. Green, 94 Wash.2d 216, 221, 616 P.2d 628 (1980). As explained in State v. Spruell, 57 Wash.App. 383, 385, 788 P.2d 21 (1990):

In appellate review of a challenge to the sufficiency of the evidence, the court must consider the evidence in the light most favorable to the State and reject the challenge if a rational trier of fact could have found all of the elements of the crime beyond a reasonable doubt. State v. Baeza, 100 Wn.2d 487, 670 P.2d 646 (1983). A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom. State v. Theroff, 25 Wn.App. 590, 608 P.2d 1254, aff'd, 95 Wn.2d 385, 622 P.2d 1240 (1980).

Porter was not in actual physical possession of the drugs when arrested. Nevertheless, possession of narcotics may also be established by application of the doctrine of constructive possession. State v. Callahan, 77 Wash.2d 27, 29-30, 459 P.2d 400 (1969); State v. Gonzales, 46 Wash.App. 388, 403, 731 P.2d 1101 (1986). To establish constructive possession, courts must "look at the totality of the situation to determine if there is substantial evidence tending to establish circumstances from which the jury can reasonably infer that the defendant had dominion and control of the drugs and thus was in constructive possession of them." State v. Partin, 88 Wash.2d 899, 906, 567 P.2d 1136 (1977). Frequently, this involves establishing dominion and control over the premises where the drugs are found. State v. Callahan, supra. There is no allegation here that Porter had dominion and control of the premises. Constructive possession can, however, be established by showing "dominion and control" over the drugs. State v. Spruell, supra, 57 Wash.App. at 387, 788 P.2d 21. Therefore, the resolution of this case depends upon whether there is sufficient other evidence to establish that Porter had dominion and control over the cocaine found on the kitchen floor of the residence.

A similar issue was recently addressed by this court in State v. Spruell, supra. In Spruell, the defendant was charged and convicted of possession of cocaine despite the absence of actual possession of the drugs or of constructive possession through dominion and control of the premises. The Spruell court reversed the conviction, finding that the evidence was insufficient to show that the defendant had dominion and control over the drugs. As stated by the court,

There is no evidence in this case involving Hill other than the testimony of his presence in the kitchen when the officers entered and the testimony of the conditions there described by Detective Greenbaum and Detective Sergeant McClure. There is no evidence relating to why Hill was in the house, how long he had been there, or whether he had ever been there on days previous to his arrest. There is no evidence of any activity by Hill in the house. So far as the record shows, he had no connection with the house or the cocaine, other than being present and having a fingerprint on a dish which appeared to have contained cocaine immediately prior to the forced entry of the police. Neither of the police officers testified to anything that was inconsistent with Hill being a mere visitor in the house. There is no basis for...