State v. Tadeo-Mares, TADEO-MARE

• Decision Date: 01 July 1997
• Docket Number: TADEO-MARE,No. 14618-9-III,A,14618-9-III
• Citation: 939 P.2d 220,86 Wn.App. 813
• Court: Washington Court of Appeals
• Parties: The STATE of Washington, Respondent, v. Leonelppellant.

Page 813

86 Wn.App. 813

939 P.2d 220

The STATE of Washington, Respondent, v. Leonel TADEO-MARES, Appellant.

No. 14618-9-III.

Court of Appeals of Washington,

Division 3,

Panel Nine.

July 1, 1997.

Reconsideration Denied July 25, 1997.

Philip E. Nino, Spokane, for Appellant.

John D. Knodell, III, Prosecuting Attorney, Ephrata, for Respondent.

THOMPSON, Judge.

Leonel Tadeo-Mares challenges the sufficiency of the evidence to support his conviction for possession of a controlled substance with intent to deliver, RCW 69.50.401(a). He argues the State failed to prove he constructively possessed the cocaine. We affirm.

In September and October 1994, Detective David Ponozzo and other members of the Interagency Narcotics Enforcement Team (INET) were investigating drug activity at 512 North Grape, Apartment 7A, in Moses Lake. In addition to keeping the apartment under surveillance, the team used a confidential informant to make controlled drug purchases at the apartment on September 21, 26, 27 and 28, and October 7. On at least three of these dates, Detective Ponozzo worked surveillance and observed an unusual number of people enter the residence, stay for a minute or two, and then leave.

INET obtained a search warrant for the premises, and on the morning of October 7 they entered the apartment, removed three persons (including Mr. Tadeo-Mares), and conducted a search. The apartment was small, measuring only about 220 square feet. Next to the water heater, the officers found a .22-caliber rifle and ammunition. On top of the refrigerator and in a kitchen drawer, the officers found plastic baggies with the corners removed. ¹

The officers also found photographs in the living area of the apartment. One depicted Mr. Tadeo-Mares. Another showed Jesus Eli Cruz Hernandez, a 14-year-old who was one of the individuals present when the officers arrived. In addition, the officers found a rent receipt for apartment 7A dated October 1, 1994, in the amount of $210.24 received from "Julio Nunguia" and Jesus Eli Cruz Hernandez. A vehicle registration document for a pickup in the name of "Julio Nunguia" matched a vehicle parked outside the apartment. The apartment manager identified Mr. Tadeo-Mares as the "Julio Nungeya" who rented and paid for apartment 7A along with Mr. Hernandez and who had lived there for at least five weeks before the warrant was executed. ²

In the bathroom, the officers found a plastic medicine bottle containing 16 tied-corner baggies of a white, powdery substance, which proved to be 10.7 grams of uncut cocaine. This amount of cocaine would sell for more than $800 at prevailing prices. At that point, the occupants of the apartment were arrested and searched. In Mr. Hernandez's pockets, officers found three wallets containing a total of $1,119.75. Three $20 bills matched serial numbers of controlled-buy money given to the confidential informant earlier that day. None of the wallets contained identification. A search of Mr. Tadeo-Mares's person revealed nothing, except maybe lint in his pockets.

When sufficiency of the evidence is at issue, the test is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." State v. Gentry, 125 Wash.2d 570, 596-97, 888 P.2d 1105, cert. denied, --- U.S. ----, 116 S.Ct. 131, 133 L.Ed.2d 79 (1995). All reasonable inferences must be drawn in the State's favor and interpreted most strongly against the defendant. State v. Partin, 88 Wash.2d 899, 906-07, 567 P.2d 1136 (1977). The elements of a crime may be established by either direct or circumstantial evidence, and one type of evidence is no less valuable than the other. State v. Thompson, 88 Wash.2d 13, 16, 558 P.2d 202, appeal dismissed, 434 U.S. 898, 98 S.Ct. 290, 54 L.Ed.2d 185 (1977); State v. Brooks, 45 Wash.App. 824, 826, 727 P.2d 988 (1986).

The evidence establishes that Mr. Tadeo-Mares leased the apartment, shared the rent, and resided there. He was in constructive possession of the premises. See State v. Jeffrey, 77 Wash.App. 222, 227, 889 P.2d 956 (1995); State v. Collins, 76 Wash.App. 496, 501, 886 P.2d 243, review denied, 126 Wash.2d 1016, 894 P.2d 565 (1995); see also State v. Harris, 14 Wash.App. 414, 417, 542 P.2d 122 (1975) (constructive possession may be joint), review denied, 86 Wash.2d 1010 (1976).

However, it is not a crime to have dominion and control over the premises where controlled substances are found. State v. Olivarez, 63 Wash.App. 484, 486, 820 P.2d 66 (1991). As a Division One panel of this court recently recognized, dominion and control over the premises raises only a rebuttable inference of dominion and control over contraband inside the premises. State v. Cantabrana, 83 Wash.App. 204, 208, 921 P.2d 572 (1996). Dominion and control of the premises is only one factor in determining whether a person had constructive possession of drugs. Id. at 208, 921 P.2d 572.

In another context, this court recently addressed the propriety of a jury instruction that stated in part: "Constructive possession [of a substance] occurs when there is no actual physical possession, but there is dominion and control over the substance or the premises upon which the substance is found." State v....