No. 64187-5-I.The Court of Appeals of Washington, Division One.
April 4, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for King County, No. 09-1-01621-2, Mary Yu, J., entered August 21, 2009.
Affirmed by unpublished opinion per Spearman, J., concurred in by Grosse and Becker, JJ.
SPEARMAN, J.
Andrew Branch challenges the sufficiency of the evidence of his convictions for possession of a controlled substance, first degree possession of stolen property, and sixteen counts of second degree identity theft. Branch further contends the State committed prosecutorial misconduct during closing argument and raises several other issues in his statement of additional grounds. We reject his arguments and affirm.
FACTS
At 2:30 a.m. on December 1, 2008, police officers served an arrest warrant on Andrew Branch at the address Branch had given the Department of Corrections as his residence. When the officers entered the one-bedroom apartment, a woman who did not live in the apartment was sitting in the living room. Branch was in the bedroom and attempted to escape out a back window. Branch did not escape, and the officers arrested him. While inside the apartment, the officers saw a computer, still on, in the bedroom with the screen showing what they believed to be counterfeit U.S. currency. Additionally, the officers saw what appeared to be sheets of counterfeit currency in plain sight, two counterfeit $100 bills printed on white paper in plain sight, along with crack cocaine, crystal meth, methadone, and drug paraphernalia on the bed and headboard of the bed. The officers also saw stacks of mail addressed to multiple persons other than Branch scattered throughout the apartment.
The officers obtained a search warrant for the apartment based on their observations. While executing the warrant, they recovered from a cabinet in the living room personal documents belonging to Branch, including an envelope addressed to Branch with his Monroe Department of Corrections address, a copy of a fax addressed to Branch’s corrections officer, a Department of Corrections envelope addressed to Branch listing his most recent discharge date, a business card for Branch’s corrections officer, a prescription in Branch’s name, and a Department of Social and Health Services (DSHS) application form in Branch’s name.
In addition to Branch’s personal items, the officers also recovered from the cabinet an IRS W-2 form belonging to a man with cerebral palsy who had received care from Branch’s former girlfriend. The officers also recovered checks and financial documents belonging to numerous other persons from the living room of the apartment. These documents included checks from the accounts of four separate individuals and business entities; a credit card statement that did not belong to Branch or anyone else connected to the apartment; a check from a women’s health care clinic made payable to one of Branch’s girlfriends; a check from Food Services of America payable to one of Branch’s girlfriends; and a check from Food Services of America payable to A. Lopez. None of the people or entities owning the above-described accounts had given their permission to take the checks or financial information.
Additionally, in the living room, the police recovered “check stock” paper on which the above-described checks were printed; multiple checks drawn on the account of a development company payable to one of Branch’s girlfriends; and multiple checks drawn on the account of a fisheries company payable to one of Branch’s girlfriends. Inside the living room entertainment center was a shoebox full of financial documents belonging to a family that had no connection to the apartment.
From the bedroom, the police recovered a bag containing multiple stolen checkbooks. In total, there were approximately 35 checkbooks found in the bedroom. In addition, the police recovered from the bedroom a page of printed checks drawn on a Washington Mutual account with Branch’s name; a page of checks drawn on a Bank of America account with Branch’s name; another page of printed checks on the Washington Mutual account with Branch’s name but with slight variations to the checks; a Department of Corrections identification card in Branch’s name; a Washington State identification card in Branch’s name; and a debit MasterCard in Branch’s name. Further, the police found crack cocaine, crystal meth, and methadone in the bedroom.
The police also found in the kitchen hallway and closet a large number of driver’s licenses and other cards containing personal identification belonging to individuals other than Branch. On the kitchen table was a stolen Dell laptop. In the living room was a stolen Dell computer. In the bedroom were three printers, including a stolen Hewlett Packard LaserJet printer. The police also found two custom tower computers, one in the bedroom and one in the living room. A forensic computer search showed that the computer from the bedroom contained a pornographic video of Branch with two women. The computers also had been used to print counterfeit currency, create checks, and access gambling sites in Branch’s name.
At trial, Branch did not testify. His theory of the case was that A. Lopez was the true mastermind behind the forging operation; that he did not live in the apartment; and that none of the stolen computers, identity and financial documents, or controlled substances were in his possession. Branch called his former girlfriend to testify. She claimed that A. Lopez was the true tenant of the apartment, and that Branch merely visited the apartment at times to help Lopez with her on-line boutique business. Branch’s downstairs neighbor testified that Branch lived in the apartment. The landlord testified Branch lived in the apartment and rented from him, paying in cash each month until Branch’s arrest. The jury convicted Branch of one count of possession of a controlled substance, one count of first degree possession of stolen property, and 16 counts of second degree identity theft. Branch appeals.
DISCUSSION Constructive Possession Instruction
Branch argues the jury instructions were faulty in that the only instruction defining constructive possession was the WPIC for constructive possession of a controlled substance. According to Branch, because the jury was not given the definition of constructive possession for the possession of stolen property and identity theft counts, the State was “required” to prove actual possession for those counts. We disagree.
Branch cites State v. Callahan, 77 Wn.2d 27, 29, 459 P.2d 400 (1969), for the proposition that “`[p]ossession,’ of necessity, and with respect to these counts, means actual possession, absent further definition.” But nowhere inCallahan does the Court say that absent a constructive possession instruction, the State is required to prove actual possession. Nor does Branch cite any other Washington case in support of that proposition. We reject this argument.
Branch is correct that the jury instructions defined constructive possession only as to the possession of a controlled substance count. That instruction reads as follows:
Possession means having a substance in one’s custody or control. It may be either actual or constructive. Actual possession occurs when the item is in the actual physical custody of the person charged with possession. Constructive possession occurs when there is no actual physical possession but there is dominion and control over the substance. Dominion and control need not be exclusive to establish constructive possession.
The State contends this instruction applied not only to the possession of a controlled substance count, but also to the counts based on possession of the stolen computers and identity theft documents. We disagree. The State does not explain how the word “substance” used in the instruction could apply to stolen computers or to identity theft documents, especially in light of the instruction that defines cocaine, methamphetamine, and methadone as “controlled substance[s].” Clerk’s Papers at 111. Moreover, the note for this washington pattern jury instruction (wpic) indicates that this definition of possession should be used “for controlled substance or legend drug cases only.” 11 washington pattern jury instructions: Criminal 50.03 (3d ed. 2008).
Branch, however, did not challenge the jury instructions regarding possession below. In general, this court will not address issues raised for the first time on appeal. RAP 2.5(a). With respect to jury instructions, objections must be “timely and well stated . . . `in order that the trial court may have the opportunity to correct any error.'” State v.Scott, 110 Wn.2d 682, 685-86, 757 P.2d 492 (1988) (quotingSeattle v. Rainwater, 86 Wn.2d 567, 571, 546 P.2d 450
(1976)). It is only where an instructional error is “of constitutional magnitude” that it may be challenged for the first time on appeal. Scott, 110 Wn.2d at 686 (citing RAP 2.5(a)(3)). The appellant must show manifest error involving a constitutional right. RAP 2.5(a)(3); State v.McDonald, 138 Wn.2d 680, 691, 981 P.2d 443 (1999). An error is “manifest” if it had “`practical and identifiable consequences in the trial of the case.'” State v. WWJCorp., 138 Wn.2d 595, 603, 980 P.2d 1257 (1999) (quotingState v. Lynn, 67 Wn. App. 339, 345, 835 P.2d 251
(1992)).
The question is thus whether the absence of a definitional instruction as to constructive possession for the counts of possession of identity theft documents and stolen property counts was a manifest error affecting a constitutional right. We conclude it was not. “[F]ailure to give a definitional instruction is not failure to instruct on an essential element[.]” Scott, 110 Wn.2d at 690 (quotingState v. Tarango, 105 N.M. 592, 599, 734 P.2d 1275
(Ct. App. 1987) (overruled on other grounds by State v.Zurla, 109 N.M. 640, 789 P.2d 588 (1990)). InScott, the trial court gave an instruction on accomplice liability that described “knowledge” as an element of the offense, but did not define the term. The defendant did not object below, and argued his objection to the instruction could be heard for the first time on appeal because it was of constitutional magnitude. Scott, 110 Wn.2d at 683-84.
The Supreme Court rejected this argument, holding that while the failure to be instructed on elements of an offense is of constitutional magnitude, “nothing in the constitution, as interpreted in the cases of this or indeed any court, requir[es] that the meanings of particular terms used in an instruction be specifically defined.” Id. at 690-91; seealso, State v. Ng, 110 Wn.2d 32, 44, 750 P.2d 632
(1988) (in a case where the trial court failed to define “theft”, “constitutional requirement is only that the jury be instructed as to each element of the offense” and “failure of the court . . . to define further one of those elements in not within the ambit of the constitutional rule”).
Here, the jury was instructed on the elements of the charged crimes. As was the case in Scott and Ng, the fact that the trial court did not further define elements of the possession of stolen property and identity theft counts is not of constitutional magnitude. Scott, 110 Wn.2d at 683-84. We decline to review Branch’s argument on this issue.
Sufficiency of the Evidence
Evidence is sufficient to support a conviction if, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v.Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980). “A claim of insufficiency admits the truth of the State’s evidence and all inferences that reasonably can be drawn therefrom.” Statev. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992) (quoting State v. Theroff, 25 Wn. App. 590, 593, 608 P.2d 1254 (1980). “In determining the sufficiency of the evidence, circumstantial evidence is not to be considered any less reliable than direct evidence.” State v.Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980) (citingState v. Gosby, 85 Wn.2d 758, 539 P.2d 680 (1975)).
Branch first claims the evidence was insufficient to prove constructive possession of a controlled substance, the stolen property, and the identity theft documents. We disagree. Constructive possession occurs where there is no actual physical possession, but there is dominion and control over the item.State v. Jeffrey, 77 Wn. App. 222, 227, 889 P.2d 956
(1995). “Exclusive control is not necessary to establish constructive possession, but mere proximity to [the item] is insufficient.” State v. Davis, 117 Wn. App. 702, 708-09, 72 P.3d 1134 (2003); State v. Jones, 146 Wn.2d 328, 333, 45 P.3d 1062 (2002). Constructive possession need not be proved by direct evidence, but may instead “be proved by substantial circumstantial evidence.” State v.Sanders, 7 Wn. App. 891, 893, 503 P.2d 467 (1972).
The gravamen of Branch’s argument both to the jury and on appeal is that because he did not live in the apartment where the drugs, stolen computers, and identity theft documents were recovered, the evidence was insufficient to prove that he constructively possessed them. But Branch focuses on each individual piece of evidence obtained from the apartment, and argues that taken alone each piece cannot establish constructive possession. For example, Branch argues that a temporary residence alone isn’t enough to prove constructive possession; that the presence of personal items isn’t enough to prove constructive possession; that mere knowledge of the presence of contraband isn’t enough to prove constructive possession. But this court “must look at the totality of the circumstances to determine whether the jury could reasonably infer dominion and control.” State v. Potts, 93 Wn. App. 82, 88, 969 P.2d 494 (1998).
Here, viewed in a light most favorable to the State, the totality of the circumstances show the jury could have reasonably inferred Branch exercised dominion and control over the apartment and the items therein. The landlord testified Branch rented the apartment, and paid rent in cash. A neighbor testified Branch lived in the apartment. Branch’s personal documents were in various locations within the apartment, including the bedroom and common areas. Branch was arrested inside of the apartment. Branch was in the apartment with a female visitor late at night. Branch’s name was on many of the forged printed checks recovered from the apartment. The stolen computers in the apartment had been used to access internet gambling sites in Branch’s name. One of the computers also contained a pornographic video of Branch with two women filmed in the apartment bedroom. Additionally, many of the stolen computers and identity theft documents were in plain sight throughout the apartment. In short, the evidence is sufficient to demonstrate Branch constructively possessed the stolen property, identity theft documents, and controlled substances found in the apartment.
Branch next argues the evidence was insufficient to prove he intended to commit a crime for purposes of the identity theft counts. We disagree. The identity theft charges against Branch required proof that Branch possessed the identity documents with the “intent to commit or aid or abet any crime[.]” Branch claims that evidence of possession of stolen identification documents alone is insufficient to prove he intended to commit or abet a crime with the stolen identification documents. But as is described above, the State provided more than mere evidence of possession. Not only did the apartment in which he was arrested contain stolen checks, bank statements, and other financial documents, the apartment also contained fraudulent and stolen checks made payable to Branch. Additionally, the apartment in which Branch was arrested contained printers and paper used to generate fraudulent checks and other documents. Further, multiple victims testified that the stolen documents found in the apartment had been used either for the purpose of fraudulently manufacturing checks, for forging checks, or to attempt to open and access bank accounts using the stolen information.
In short, viewing the evidence in a light most favorable to the State, a rational juror could have found Branch intended to use the stolen identity documents to aid or abet or commit a crime.[1]
Prosecutorial Misconduct
Branch argues prosecutorial misconduct during closing argument deprived him of a fair trial. To prevail on a claim of prosecutorial misconduct, the defendant must show both improper conduct and prejudicial effect. State v. Roberts, 142 Wn.2d 471, 533, 14 P.3d 713 (2000). Prejudice is established only if the defendant shows there is a substantial likelihood that the misconduct affected the jury’s verdict. In rePersonal Restraint of Pirtle, 136 Wn.2d 467, 481, 965 P.2d 593 (1998). Here, Branch did not object to the closing argument he now claims was misconduct. As such, he has waived any error and this court cannot reverse unless the remark was so flagrant and ill-intentioned that it caused an enduring and resulting prejudice that could not have been neutralized by a curative instruction. State v. Belgarde, 110 Wn.2d 504, 507, 755 P.2d 174 (1988).
Branch contends the following remark requires reversal:
So the question is there an innocent explanation for any one thing becomes suddenly much greater when this innocent explanation needs to cover all of this.
According to Branch, this remark relieved the State of its burden of proof. We disagree. This remark was made during rebuttal argument, and was a response to defense counsel’s closing argument, which generally focused on each piece of evidence separately. In response, the prosecutor urged the jury to view the evidence not individually, but in context, as a whole:
One of the reasons I ask you to consider common sense is because this case ultimately comes down to the facts. There are explanations for many of these individual pieces of evidence many of the individual pieces of testimony. Yes, there are innocent explanations for a great deal of this stuff, but common sense tells you that you don’t look at one thing and then look at another thing and then look at a third thing and look at all of those individually. No. Common sense tells us what you are allowed to do as jurors is not just look at one individual point at a time but also to consider all of the points together.
So the question is there an innocent explanation for any one thing becomes suddenly much greater when this innocent explanation needs to cover all of this. So that’s why I ask you to use your common sense. Not to get stuck in that trap of saying well, I only look at each individual thing separately. As jurors, you are allowed and you are encouraged to look at the global picture of what’s going on in this case.
Even if this was considered misconduct, it is difficult to see how it was so flagrant and ill-intentioned that it caused enduring and resulting prejudice that could not have been neutralized by a curative instruction. We reject Branch’s argument on this issue.
Lack of unanimity instruction
Branch contends in his RAP 10.10 statement of additional grounds for review that the trial court erred by not giving a unanimity instruction. Branch, however, did not object to the lack of a unanimity instruction below, and as such, he has waived the argument unless he can show how the error was manifest, i.e., how it actually affected his rights at trial.See, State v. Kirkman, 159 Wn.2d 918, 926-27, 155 P.3d 125 (2007). Given Branch does not specify what he believes required a unanimity instruction, see, statement of additional grounds at 21, we conclude Branch has not made the requisite showing here.
Accomplice liability
Branch also contends in his RAP 10.10 statement of additional grounds for review that the trial court erred by giving an accomplice liability instruction. We review the decision whether to give a particular jury instruction for an abuse of discretion. State v. Chase, 134 Wn. App. 792, 803, 142 P.3d 630 (2006), rev. denied, 160 Wn.2d 1022 (2007). Jury instructions are sufficient when, taken as a whole, they properly inform the jury of the applicable law, are not misleading, and permit the defendant to argue his theory of the case. State v. Tili, 139 Wn.2d 107, 126, 985 P.2d 365
(1999). “It is error for a trial court to give an instruction which is not supported by the evidence.” State v.Ager, 128 Wn.2d 85, 93, 904 P.2d 715 (1995). The appellate court views the supporting evidence in the light most favorable to the party that requested the instruction. State v.Fernandez-Medina, 141 Wn.2d 448, 455-56, 6 P.3d 1150 (2000).
We conclude the instruction was warranted here. Branch’s theory of the case was that A. Lopez was the true renter of the apartment and that the forging operation was hers. To the extent the jury could have believed Branch’s theory, it could also believe that at a minimum, Branch was routinely at the apartment helping Lopez with the operation. In sum, when viewed in a light most favorable to the State, the evidence supports the trial court instructing the jury on accomplice liability.[2]
Affirmed.