State v. Potts, 39

• Citation: 1 Wn.App. 614,464 P.2d 742
• Decision Date: 30 December 1969
• Docket Number: No. 39,39
• Parties: The STATE of Washington, Respondent, v. Richard L. POTTS, Appellant. (40706) II.
• Court: Court of Appeals of Washington

Page 614

1 Wn.App. 614

464 P.2d 742

The STATE of Washington, Respondent, v. Richard L. POTTS, Appellant.

No. 39 (40706) II.

Court of Appeals of Washington, Division 2.

Dec. 30, 1969.

Van Buskirk, Haas & Rorem, Tacoma, for appellant, Henry Haas, Tacoma, appointed.

Joseph D. Mladinov, Special Counsel to Pros. Atty., Pierce County, Tacoma (Ronald L. Hendry, Pros. Atty., and Eugene G. Olson, Chief Crim. Deputy Pros. Atty. on the brief) for State of Washington.

PETRIE, Judge.

Defendant, Richard L. Potts, appeals from the entry of judgment and sentence following conviction of the crime of illegal possession of marijuana. Trial was before the court with the right to a jury being waived.

In his first assignment of error, defendant claims the contraband was discovered as the result of an illegal search and seizure. The pertinent facts are as follows: On the evening of September 30, 1968, Trooper Dorsey of the Washington State Patrol observed the defendant speeding south on Pacific Highway. A chase ensued during which defendant repeatedly crossed the center line of the highway and ran through several stop lights. It culminated within the city limits of Tacoma where defendant was forced to stop the car to avoid a roadblock. Defendant Potts got out of the car and stated: 'They are after me, they are chasing me.' In the words of Trooper Dorsey, 'he didn't appear to be all there.' Potts was immediately arrested for reckless driving and taken to jail. Dorsey remained with the car and called a wrecker to impound it. He then searched the car and found a tin box containing marijuana in the glove compartment and a marijuana plant in the trunk. Defendant contends that this was an unlawful search. The trial court sustained the search upon two separate grounds: (1) a lawful inventory search, and (2) a valid search incidental to a lawful arrest. We agree that it was a lawful inventory search and thus do not reach the second ground.

In State v. Montague, 73 Wash.2d 381, 438 P.2d 571 (1968) our Supreme Court sustained the validity of an inventory search when conducted after a lawful arrest and preparatory to or following a reasonable impoundment. Defendant Potts contends, however, that the present search was an unlawful exploratory search, because Trooper Dorsey suspected that Potts, because of his strange behavior at the time, was under the influence of alcohol or drugs. We are not unmindful of the difficulty in distinguishing between a reasonable and lawful inventory search and an unlawful exploratory search. The ultimate determination must be based upon the facts of the particular search in question. The record reflects that defendant, the sole occupant of the car, was in custody pursuant to a lawful arrest. There was no one to attend to the car. Consequently, Trooper Dorsey, pursuant to regulations, impounded and searched the car. At trial he stated that he conducted the search for the dual purpose of protecting the contents from possible theft and the police from false claims of theft.

The record indicates that there was sufficient evidence to support the trial court's finding that the search was not exploratory, but was conducted in good faith for the purpose of taking an inventory of the contents of a car that had been justifiably impounded. We will not disturb its finding.

Defendant's second assignment of error challenges the admissibility of exhibits 1 and 3. Exhibit 1 was the tin box containing marijuana and exhibit 3 was the marijuana plant. Defendant argues that the exhibits are not admissible because there had been a 'break in the chain of evidence.' Because proof of illegal possession of either exhibit would be sufficient to sustain conviction, we will, for the sake of brevity, limit the inquiry to whether exhibit 3, the marijuana plant, was properly received into evidence. Exhibit 3 was seized by Trooper Dorsey, the arresting officer. He initialed the plant and delivered it to Officer White of the Narcotics Division of the Tacoma Police Department. At trial, Trooper Dorsey, identified the plant and stated it was 'in substantially the same condition' as before. That testimony alone was sufficient. An exhibit is sufficiently identified when it is identified as being the same object and when it is declared to be in the same condition as at the time of its initial acquisition by the state. State v. Russell, 70 Wash.2d 552, 424 P.2d 639 (1967). Exhibit 3 was properly admitted into evidence.

Defendant next challenges the trial court's decision to allow Officer Potter to testify as to the result of marijuana identification tests conducted upon exhibit 3.

Officer Potter, a member of the Records and Identification Division of the Tacoma Police Department, conducted three widely recognized tests upon exhibit 3. All three tests positively identified exhibits 3 as marijuana. Defendant contends however that Officer Potter was not qualified to testify as an expert witness. The contention lacks merit.

The determination of the qualifications of an expert witness is a matter within the discretion of the trial court. State v. Nelson,72 Wash.2d 269, 432 P.2d 857 (1967). The trial court did not abuse its discretion. The record shows that Officer Potter has received chemical analysis training and has performed over 250 marijuana identification tests. Defendant's next assignment of error concerns the quantum of proof necessary to sustain a conviction of the crime of illegal possession of narcotics. It is well established that the state need not prove actual possession but that proof of constructive possession will suffice. State v. Callahan, 77 Wash.Dec.2d 26, 459 P.2d 400 (1969). Defendnat contends however that the evidence was insufficient to prove constructive possession. More specifically, he contends that the state's failure to allege or prove that he was the owner of the car in which marijuana was found was fatal. We do not agree.

Constructive possession is proved when it can be said a person has dominion and control over the property alleged to be possessed. State v. Walcott, 72 Wash.2d 959, 435 P.2d 994 (1967). What constitutes dominion and control is not so clear. In State v. Callahan, Supra, the court reviewed cases that have involved constructive possession of narcotics and drugs and concluded that in each instance there was evidence that the defendant had dominion and control of either the drugs or the premises on which the drugs were found. In the instant case, it is clear that the defendant had dominion and control over the 'premises.' He had the keys to the car and was driving it. He was the sole occupant of the car. We believe these facts sufficient to support the trial court's finding that the defendant was in dominion and control over the contents of the car, to wit; the marijuana. That being so, it was incumbent upon defendant to establish that his possession was unwitting, lawful or otherwise excusable. State v. Morris, 70 Wash.2d 27, 422 P.2d 27 (1966).

Defendant finally contends that the trial court abused its discretion in imposing sentence.

Following the rendition of its oral decision of guilt, the court set the sentencing date for November 21, 1968. On that date the court heard argument relative to the sentence that should be imposed. Defendant's counsel pleaded leniency. Because of defendant's apparent lack of any previous criminal convictions, the deputy prosecutor recommended that he be placed on probation with the condition he serve 6 months in the county jail. What transpired next, within the span of a few minutes, is more than a little mystifying. The court orally imposed the maximum sentence but placed defendant on probation with the condition he serve one year in the county jail. The court then directed the prosecutor to prepare an order to that effect; and asked defendant for permission to sign the judgment and sentence, ex parte, at a future date. Both defendant and his counsel gave their consent. Defendant's counsel then gave notice of appeal and the following colloquy between ...