No. 29808-2-II.The Court of Appeals of Washington, Division Two.
Filed: February 24, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Mason County. Docket No: 02-1-00096-7. Judgment or order under review. Date filed: 12/19/2002. Judge signing: Hon. James B II Sawyer.
Counsel for Appellant(s), Thomas Edward Doyle, Attorney at Law, PO Box 510, Hansville, WA 98340-0510.
Counsel for Respondent(s), Monty Dale Cobb, Mason County Prosecutors Office, 521 N 4th Ave Ste a, PO Box 639, Shelton, WA 98584.
BRIDGEWATER, J.
Charles Lee Reed was convicted of unlawful possession of methamphetamine and third degree driving with a suspended license. He appeals only the unlawful possession conviction, challenging only the sufficiency of the evidence. Because the evidence was sufficient, we affirm.
The facts are straightforward. Tim Baker, a sergeant with the Skokomish Tribal Police, stopped Reed for having expired license tabs. When Baker approached, he saw on the driver’s side floorboards an orange syringe cap and `a small zip-lock bag with some white residue in it.’ Report of Proceedings (RP) at 15. Baker took the syringe cap but did not immediately seize the plastic baggie, though it was clear to him that the baggie contained drugs. Instead, he returned to his patrol car where he determined that Reed was driving with a suspended license.
When Baker approached Reed’s vehicle again, he noticed that the plastic baggie was gone. He asked Reed what had come of it, and Reed told him that he had burned it because `he didn’t want to get in trouble for it.’ RP at 17.
A state trooper, Douglas Malmstrom, arrived a few minutes later to inventory Reed’s vehicle. During his search, Malmstrom found two more plastic baggies one blue, and one pink containing a white residue. Further search of the area between the driver’s seat and the center console revealed a small black case that contained such drug paraphernalia as needles, small tools, and two spoons, one of which was inscribed with the letter `R.’ RP at 32. Remnants of white cotton balls were stuck on both spoons, which Malmstrom testified was consistent with a method of cooking methamphetamine. Both baggies and the spoon tested positive for methamphetamine.
At his jury trial, Reed attempted an unwitting possession defense. He informed the jury that he had just been released from jail in Clark County, and he came to Mason County on the day of his arrest merely to recover possession of his car, which he believed was with his ex-girlfriend. Upon locating both the girl and the car, Reed noticed that the car’s interior was in poor condition i.e. `like somebody had been living in it’ and `just garbage all over.’ RP at 58. According to Reed, his arrest occurred just a few minutes after he regained possession of his car. Grounded in the car’s dirtiness and general disarray, Reed theorized that he had no knowledge of the drugs or drug paraphernalia, and that they must have been left there by someone else.
The trial court issued an unwitting possession instruction, which informed the jury that `[t]he burden is on the defendant to prove by a preponderance of the evidence that the substance was possessed unwittingly.’ RP at 84. The jury, apparently unconvinced on Reed’s unwitting possession theory, found him guilty of unlawful possession of methamphetamine.
Reed challenges only the sufficiency of the evidence supporting this conviction. But while introduced as a sufficiency challenge, the substance of his brief focuses on the substantiality of the evidence indicating that his possession was unwitting. The gravamen of Reed’s argument is, therefore, that the evidence i.e. his own testimony suggesting that the possession was unwitting was so unassailable that the jury should have accepted his defense.
As an appellate court, we are ill-equipped to decide whether a criminal defendant’s version of events is more credible than the State’s version. That function is performed by the trier of fact, who in this case disbelieved Reed’s claim that his possession was unwitting. As the sole judge of credibility, the jury was well within its province in making this decision as long as sufficient evidence existed. See State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
Our sole function in this case is, then, to decide whether the jury’s choice that Reed knowingly possessed the methamphetamine was rationally based on the trial’s evidence. See State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). We examine the evidence in the light most favorable to the State, giving all reasonable inferences in the State’s favor. Salinas, 119 Wn.2d at 201.
The State had only to prove that Reed possessed a controlled substance.
Possession means having a substance in one’s custody or control. It may be either actual or constructive . . . Constructive possession occurs when there is no actual physical possession but there is dominion and control over the substance.
Clerk’s Papers (CP) at 34 (Instruction 9).
A driver who is the sole occupant of the vehicle that he is driving has dominion and control over the vehicle and its contents. State v. Dodd, 8 Wn. App. 269, 274-75, 505 P.2d 830 (1973); State v. Potts, 1 Wn. App. 614, 617, 464 P.2d 742 (1969). In Dodd and Potts, this principle established constructive possession of controlled substances found in the defendants’ vehicles.
The evidence of Reed’s dominion and control was sufficient. When he was arrested and the car searched, Reed was the car’s driver and sole occupant. Although these circumstances, standing alone, sufficiently indicate constructive possession of the methamphetamine found in his car, the point is strengthened by evidence suggesting a close proximity between the driver’s seat, the drugs, and the paraphernalia. The jury was justified in its decision that Reed constructively possessed a controlled substance.
In his Statement of Additional Grounds for Review, Reed makes two more arguments. First, without explaining its harmful effect, he makes the bare assertion that jurors viewed him in handcuffs during a trial break. While we recognize the dangers associated with such an occurrence, we cannot accept Reed’s claim without record support for the factual assertion or an explanation as to the prejudicial impact that the occurrence had on Reed’s trial.
Second, Reed contends that his counsel was ineffective for failing to investigate or contact the person who drove him to Mason County to retrieve his car. We examine this claim of ineffective assistance under the test announced in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), that requires Reed to show that (1) his attorney’s performance was deficient and not a matter of trial strategy or tactics, and (2) he was prejudiced. We have no record of either a request for investigation or of what this person would have testified to if called. Reed fails to explain the relevance of this person’s expected information, and he fails to establish that the outcome of his trial would have differed had counsel so acted. Therefore, the ineffective assistance claim also fails.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
ARMSTRONG, J. and QUINN-BRINTNALL, A.C.J., concur.