issues: dominion and control
DOMINION AND CONTROL
“Dominion and control” means that an object may be reduced to actual possession immediately. Mere proximity is not enough to establish possession. State v. Jones, 146 Wn.2d 328, 333 (2002)(citations omitted)(defendant driver had constructive control of girlfriend’s purse because he exercised control over car and contents and admitted he stored items in purse, also giving him automatic standing in VUFA case)
In a possession prosecution, the state may establish that possession is either actual or constructive. “Actual possession means that the goods are in the personal custody of the person charged with possession; whereas constructive possession means that the good are not in actual, physical possession, but that the person charged with possession has dominion and control over the good. To meet its burden on the element of possession the State must establish actual control, not a passing control.”
State v. Staley, 123 Wn.2d 794, 798 (1994)(citations omitted).
Absent actual physical possession, constructive possession will generally only be found where there is dominion and control 1) over the substances, or 2) the premises upon which the substance is found. Mere proximity to drugs and momentary handling is not enough to establish dominion and control. State v. Spruell, 57 Wn. App. 383, 788 P.2d 21 (1990); State v. Callahan, 77 Wn.2d 27, 29, 459 P.2d 400 (1969); see also, State v. Summers, 45 Wn. App. 761, 728 P.2d 613 (1986); State v. Hystad, 36 Wn. App. 42, 49, 671 P.2d 793 (1983).
Possession of controlled substances may be shown by proof of dominion and control over the premises where drugs are found. State v. Callahan, 77 Wn.2d 27, 29, 459 P.2d 400 (1969); State v. Weiss, 73 Wn.2d 372, 438 P.2d 610 (1968); Dominion and control does not have to be exclusive to establish constructive possession. State v. Hagen, 55 Wn. App. 494 (1989); In establishing dominion and control over the premises, no single factor is dispositive. State v. Collins, 76 Wn. App. 496, 501, 886 P.2d 243 (1995). Evidence of temporary residence or mere presence of personal possessions on the premises is not enough. Payment of rent or possession of keys can be sufficient. State v. Partin, 88 Wn.2d 899, 906, 567 P.2d 1136 (1977); State v. Summers, 107 Wn. App. 373 (2001)(admission accused lived in basement showed dominion and control over premise where gun found); See also, State v. Huff, 64 Wn. App. 641(1992)(premises includes a vehicle); State v. Knapp, 54 Wn. App. 314 (1989)(drugs in car accused driving when alone sufficient to convict).
For addition discussion of factual elements showing constructive possession, see, State v. Knapstad, 107 Wn.2d 346 (1986); State v. Partin, 88 Wn.2d 899 (1977).
Selected cases finding sufficient evidence of constructive possession
State v. Partin, 88 Wn.2d 899, 906, 567 P.2d 1136 (1977)(payment book for purchase of premises, letters addressed to him, unemployment documents); State v. Portrey, 102 Wn. App. 898 (2000)(sufficient evidence to show defendant possessed pot growing outside residence sufficient where defendant was near a growing cluster, attempt to conceal himself from helicopter flyover, trails to plants led to and from his residence and his residence contained same black plastic tubing found around base of plants); State v. Walton, 64 Wn. App. 410, 824 P.2d 533 (1992)(receipts, utility and telephone bills addressed to defendant, presence of his small children, business card with address); State v. Weiss, 73 Wn.2d 372 (1968)(court found constructive possession of pot from house where defendant was sleeping)
State v. Jones, 146 Wn.2d 328(2002)(defendant driver had constructive control of girlfriend’s purse because he exercised control over car and contents and admitted he stored items in purse, also giving him automatic standing in VUFA case); State v. Echeverria, 85 Wn. App. 777, 934 P.2d 1214 (1997)(unchallenged finding gun under car seat in plain sight within reach sufficient evidence to establish defendant possessed or controlled gun; also noting that throwing star not in plain view did not support constructive possession based on close proximity especially where driver not registered owner); State v. Knapp, 54 Wn. App. 314 (1989)(drugs in car accused driving when alone sufficient to convict); State v. Potts, 93 Wn. App. 82, 969 P.2d 494 (1998)(baggie found under car seat after defendant seen removing stuff from his pockets upon police approach).
Selected cases finding insufficient evidence of constructive possession
State v. Alvarez, 105 Wn. App. 215 (2001)(miscellaneous articles insufficient in light of evidence juvenile defendant living elsewhere to find he possessed gun); State v. Gutierrez, 50 Wn. App. 583, 749 P.2d 213 (1993)(insufficient evidence to show dominion and control of contraband found in trailer); State v. Spruell, 57 Wn. App. 383, 788 P.2d 21 (1990)(presence in house, proximity on fingerprint on plate containing cocaine insufficient to establish dominion and control); State v. Callahan, 77 Wn.2d 27, 29, 459 P.2d 400 (1969)(proximity of drugs near defendant who was guest on houseboat and admission of handling drugs earlier in day insufficient to establish dominion and control); State v. Hystad, 36 Wn. App. 42 (1983).
Jury instruction on dominion and control WPIC 50.03
A jury instruction which provides that constructive possession occurs where there is dominion and control over the substance or the premise is error. Such an instruction operates as a directed verdict on the element of possession. As a matter of law, control over premises raises only a rebuttable inference of dominion and control over the drugs. State v. Cantabrana, 83 Wn. App. 204, 921 P.2d 572 (1996)(reversing and remanding); Cf
State v. Portrey, 102 Wn. App. 8988 (2000)(court did not err in refusing defense modified WPIC 50.03 because control over premises was not a factual issue in the case and there was more evidence than mere proximity to drugs).
In VUFA case, state proposed instruction read: “Constructive possession occurs when there is no actual physical possession but there is dominion and control over the item.” Defense proposed addition “...and such dominion and control may be immediately exercised” rejected by the trial court. Appellate court upholds court action because defense proposed instruction was “not accurate because it added an element to the crime of unlawful possession of a firearm that is not included” in RCW 9.94.040(1)(a). State v. Howell, 119 Wn. App. 644 (2003).
Use of supplemental instruction on dominion and control (i.e. “Dominion and control is the ability to reduce an object to actual possession”) was a misstatement of law and conviction as to co-defendant reversed. State v. Hagen, 55 Wn. App. 494 (1989).
In an unwitting possession case, instructions must contain requirement defendant knew cocaine on premises. State v. Ponce, 79 Wn. App. 651, 653 (1995). Requirement not applicable in appeal from dominion and control cases where sufficiency of evidence challenged. State v. Tadeo-Mares, 86 Wn. App. 813 (1997).
“Unwitting possession” versus “fleeting, momentary” possession
“Unwitting possession” should not be confused with a defense based on “momentary, temporary and fleeting” possession. Unwitting possession is a legal excuse and an affirmative defense. The amount of time drugs are possessed is irrelevant where one presents an “unwitting possession” defense. By contrast, “fleeting” possession is obviously concerned with the amount of time involved. A “fleeting possession” defense attacks whether the government can produce the quantum of evidence necessary to establish the defendant’s control over the drugs and carry its burden on the element of possession. Put differently “momentary handling” goes to the question of whether the defendant had “possession” in the first instance. State v. Staley, 123 Wn.2d 794 (1994)(trial court properly refused “unwitting possession” instruction where the defense was premised on “momentary, temporary or fleeting possession”).
Possession is more than passing control Momentary handling, without more, while illegal, is insufficient without more to prove possession. Momentary handling, when combined other evidence, such as dominion and control of premises, or a motive to hide the police, is sufficient to prove possession. State v. Summers, 107 Wn. App. 373 (2001)(defense instruction that jury must find defendant not guilty if they found only passing or momentary control not an accurate instruction on law and properly refused).
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