State v. Southwick
| Decision Date | 03 December 2014 |
| Docket Number | No. 40855.,40855. |
| Court | Idaho Court of Appeals |
| Parties | STATE of Idaho, Plaintiff–Respondent, v. Tami Marie SOUTHWICK, Defendant–Appellant. |
Nevin, Benjamin, McKay & Bartlett, LLP; Deborah Whipple, Boise, for appellant. Deborah Whipple argued.
Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy Attorney General, Boise, for respondent. Russell J. Spencer argued.
Tami Marie Southwick appeals from her judgment of conviction for possession of methamphetamine. Specifically, she argues that there was insufficient evidence to show that she had knowledge and control of the controlled substances hidden in her vehicle and that the district court committed fundamental error by failing to give a unanimity jury instruction. For the reasons set forth below, we affirm.
Southwick was stopped for having an expired vehicle registration. During the initial contact, the officer discovered that the vehicle was registered and insured under another person's name; however, Southwick claimed that the vehicle, which she had obtained a few months prior, was hers and that she had failed to register and insure the vehicle in her name. The officer asked Southwick and her passenger whether there were any drugs or paraphernalia in the vehicle. Southwick gave a quick negative response regarding marijuana, but provided a more drawn-out, negative response regarding methamphetamine. The officer became suspicious and called for a drug dog. After the officer returned to his vehicle, he noticed the passenger making furtive movements from side to side in Southwick's vehicle.
The drug dog arrived while the officer was completing a citation for the expired registration and lack of proof of insurance. The officers had Southwick, her passenger, and their two dogs exit the vehicle. As she was exiting the vehicle, Southwick made the following unsolicited statement: "Because this is not my car, I'm not responsible for anything in the car, correct?" Southwick had, only moments before, stated that she owned the vehicle, which was confirmed with the previous owner. During an exterior sniff of the vehicle, the drug dog positively alerted to the passenger door.
The passenger then asked whether it was illegal to possess scales. The passenger subsequently revealed that a digital scale was located between the front seats. While searching the vehicle, officers discovered the scale inside a black, zippered case wedged between the driver's and passenger's seats. A white powder residue visible on the surface of the scale tested positive for methamphetamine. Additionally, inside the passenger door where the drug dog alerted, officers found a baggie of methamphetamine. Southwick then admitted that she knew the scale was in the vehicle because she was holding it for a friend and had placed it in between the seats to prevent it from sliding around on the dashboard.
Southwick was charged with possession of methamphetamine, I.C. § 37–2732(c)(1). She was found guilty by a jury and sentenced by the district court to a unified term of six years, with a minimum period of confinement of three years. Southwick appeals.
Southwick argues that the evidence presented at trial was insufficient to prove beyond a reasonable doubt possession of either the residue on the scale or the baggie in the door. Additionally, she contends that the district court committed fundamental error by failing to give a unanimity instruction to the jury that would have required it to specify upon which act of possession the verdict was based. The state responds that there was sufficient evidence to prove possession and that a special unanimity instruction was not required in this circumstance.
Appellate review of the sufficiency of the evidence is limited in scope. A finding of guilt will not be overturned on appeal where there is substantial evidence upon which a reasonable trier of fact could have found that the prosecution sustained its burden of proving the essential elements of a crime beyond a reasonable doubt. State v. Herrera–Brito, 131 Idaho 383, 385, 957 P.2d 1099, 1101 (Ct.App.1998) ; State v. Knutson, 121 Idaho 101, 104, 822 P.2d 998, 1001 (Ct.App.1991). We will not substitute our view for that of the trier of fact as to the credibility of the witnesses, the weight to be given to the testimony, and the reasonable inferences to be drawn from the evidence. Knutson, 121 Idaho at 104, 822 P.2d at 1001 ; State v. Decker, 108 Idaho 683, 684, 701 P.2d 303, 304 (Ct.App.1985). Moreover, we will consider the evidence in the light most favorable to the prosecution. Herrera–Brito, 131 Idaho at 385, 957 P.2d at 1101 ; Knutson, 121 Idaho at 104, 822 P.2d at 1001. Substantial evidence may exist even when the evidence presented is solely circumstantial or when there is conflicting evidence. State v. Severson, 147 Idaho 694, 712, 215 P.3d 414, 432 (2009) ; State v. Stevens, 93 Idaho 48, 50–51, 454 P.2d 945, 947–48 (1969). In fact, even when circumstantial evidence could be interpreted consistently with a finding of innocence, it will be sufficient to uphold a guilty verdict when it also gives rise to reasonable inferences of guilt. Severson, 147 Idaho at 712, 215 P.3d at 432 ; State v. Slawson, 124 Idaho 753, 757, 864 P.2d 199, 203 (Ct.App.1993).
Possession may be either actual or constructive. State v. Segovia, 93 Idaho 594, 598, 468 P.2d 660, 664 (1970) ; State v. Garza, 112 Idaho 778, 784, 735 P.2d 1089, 1095 (Ct.App.1987). In order to prove constructive possession, knowledge and control of the controlled substance must each be independently proven beyond a reasonable doubt by either circumstantial or direct evidence. State v. Seitter, 127 Idaho 356, 360, 900 P.2d 1367, 1371 (1995) ; State v. Rozajewski, 130 Idaho 644, 647, 945 P.2d 1390, 1393 (Ct.App.1997) ; see also State v. Betancourt, 151 Idaho 635, 638, 262 P.3d 278, 281 (Ct.App.2011). Constructive possession of a controlled substance exists where a nexus between the accused and the substance is sufficiently proven so as to give rise to the reasonable inference that the accused was not simply a bystander but, rather, had the power and intent to exercise dominion and control over the substance. Rozajewski, 130 Idaho at 647, 945 P.2d at 1393 ; Garza, 112 Idaho at 784, 735 P.2d at 1095.
However, constructive possession cannot be inferred from the mere fact that the defendant occupied, with a passenger, the vehicle in which the drugs were seized. State v. Burnside, 115 Idaho 882, 885, 771 P.2d 546, 549 (Ct.App.1989) ; see also State v. Gomez, 126 Idaho 700, 706, 889 P.2d 729, 735 (Ct.App.1994). Indeed, where joint occupancy is involved, substantial evidence must exist establishing the guilt of each defendant, not merely the collective guilt of both; proximity alone will not suffice as proof of possession. Garza, 112 Idaho at 784–85, 735 P.2d at 1095–96. Circumstantial evidence, other than the mere fact of possession, may be used to find the requisite knowledge and control. State v. Groce, 133 Idaho 144, 152, 983 P.2d 217, 225 (Ct.App.1999). This can include, for example: the manner in which the drug was wrapped, stored, or carried; attempts to conceal, dispose of, or destroy the contraband; attempts to avoid detection or arrest; the presence of drug paraphernalia; the possession of other contraband or cutting agents; indications that the defendant was under the influence of drugs; the presence of fresh needle marks; as well as the proximity, accessibility, and location of the contraband. Id.
In this case, methamphetamine residue was found on a scale hidden in between the driver's and passenger's seat of Southwick's vehicle, and a baggie of methamphetamine was found hidden inside the passenger door. Southwick contends that the state failed to provide sufficient evidence of her knowledge and control of the methamphetamine in either instance.
Southwick argues that the state failed to present evidence of both her knowledge and control over the methamphetamine residue on the scale. As to knowledge, Southwick asserts that, although the state presented evidence that she knew that a black, zippered bag containing the scale was in the vehicle, the state failed to present any evidence that she knew of the methamphetamine residue on the scale.
Control of the premises in which the drugs are found has often been used to infer knowledge. State v. Warden, 97 Idaho 752, 754, 554 P.2d 684, 686 (1976). However, such an inference cannot be made, absent other circumstances, where the accused does not have exclusive possession of the premises. State v. Blake, 133 Idaho 237, 242, 985 P.2d 117, 122 (1999) ; Warden, 97 Idaho at 754, 554 P.2d at 686.
Here, the state did not rely solely on Southwick's presence in the vehicle in close proximity to the methamphetamine residue on the scale to prove knowledge. At trial, an officer testified that Southwick had admitted to knowing the scale was in the vehicle. Further, the officer testified regarding Southwick's unsolicited statement that she was not responsible for anything in the vehicle because she did not own it, despite Southwick's insistence just moments prior that she owned the vehicle, which was confirmed by the previous owner. This suspicious conduct occurred only after Southwick learned that her vehicle would be searched. A reasonable jury could interpret this as being indicative of her knowledge of the controlled substances in the vehicle, including the methamphetamine residue on the scale. Indeed, suspicious behavior by an individual upon learning of an imminent search is a circumstance that can link him or her to drugs found in a vehicle in which that person is not the sole occupant. See State v. Greene, 100 Idaho 464, 466, 600 P.2d 140, 142 (1979) (...
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State v. Southwick, 40855.
...158 Idaho 173345 P.3d 232STATE of Idaho, Plaintiff–Respondentv.Tami Marie SOUTHWICK, Defendant–Appellant.No. 40855.Court of Appeals of Idaho.Dec. 3, 2014.Review Denied March 31, 2015.345 P.3d 235Nevin, Benjamin, McKay & Bartlett, LLP; Deborah Whipple, Boise, for appellant. Deborah Whipple a......