No. 23988-8-III.The Court of Appeals of Washington, Division Three.
May 25, 2006.
Appeal from a judgment of the Superior Court for Douglas County, No. 04-1-00190-4, John Hotchkiss, J., entered March 14, 2005.
Affirmed by unpublished opinion per Kato, J., concurred in by Brown and Kulik, JJ.
Counsel for Appellant(s), William D. Edelblute, Attorney at Law, 200 N Mullan Rd Ste 119, Spokane, WA 99206-6827.
Counsel for Respondent(s), Eric C. Biggar, Douglas County Prosecutors Office, PO Box 360, Waterville, WA 98858-0360.
KATO, J.
Martin Ray Brown appeals his convictions on two counts of possession of stolen property. He contends the evidence was insufficient to support the convictions and the court made an improper evidentiary ruling. We affirm.
On September 22, 2004, Trooper David Phelps and Deputy Sheriff Jeremy Mathena received a report of a stolen white Ford truck and trailer driving erratically along Highway 2 near Wenatchee. The trailer had become unhitched from the back of the truck and hit a guardrail. While Trooper Phelps was attempting to locate the truck, he found the trailer. Two all-terrain vehicles (ATVs) were inside the trailer. One of the ATVs was stolen. The trooper also found a license plate inside the trailer and a license plate lying outside the trailer.
While Deputy Mathena was driving east on Highway 2, he was notified by the sheriff’s department that the truck had been located. Deputy Mathena pulled over and waited for the truck to pass. Once it did, the deputy activated his emergency lights and siren and followed the truck, which got off the highway and slowed down to about 15-20 miles per hour. The truck then began to drift over into the oncoming lane and the driver’s side door opened. The driver got out, hit the ground, and ran. The truck collided with a parked vehicle. Deputy Mathena parked his patrol car and chased the driver. When he caught the driver, he arrested him and put him in his patrol car. Deputy Mathena then noticed the truck was gone. It was found about one-half mile away, where it had struck a concrete barrier.
Deputy Mathena searched the truck. A K-9 unit was also brought to the scene to do a scent track from the truck. The dog obtained a scent and followed the track for over one mile. When the dog reached a grouping of willow trees, it started barking. Deputies found Mr. Brown in one of the trees. He was arrested and placed in Deputy Mathena’s patrol car. After Mr. Brown was booked into jail, Deputy Mathena searched his backpack. Inside, the deputy found brass knuckles, night vision binoculars, screwdrivers, and a map. There was also a cell phone and over $800 cash.
Mr. Brown was charged with one count of first degree possession of stolen property for the trailer, one count of second degree possession of stolen property for one of the ATVs, and one count of third degree possession of stolen property for the two license plates. Prior to trial, Mr. Brown moved to exclude evidence that the truck was stolen. He argued he was not charged with unlawfully possessing the truck so the evidence was irrelevant. The court denied the motion.
The jury found Mr. Brown guilty of first degree possession of stolen property and second degree possession of stolen property. This appeal follows.
Mr. Brown contends the evidence was insufficient to support his convictions. He argues there was no evidence he exercised dominion and control over the trailer or its contents. He also argues there was no evidence to suggest he had knowledge the trailer and its contents were stolen.
In reviewing a sufficiency of the evidence challenge, the test is whether, after viewing the evidence in a light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 220-22, 616 P.2d 628 (1980). All reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068
(1992). It is the role of the trier of fact, not the appellate court, to resolve conflicts in the testimony and to evaluate the credibility of witnesses and the persuasiveness of the evidence. State v. Carver, 113 Wn.2d 591, 604, 781 P.2d 1308, 789 P.2d 306
(1989).
To convict Mr. Brown of first degree possession of stolen property, the State had to prove he knowingly received, retained, possessed, concealed, or disposed of stolen property exceeding $1,500 in value, knowing it was stolen, and he withheld or appropriated that property for the use of any person other than the person entitled to it. RCW 9A.56.140(1), .150. Conviction under the second degree possession of stolen property statute requires the same essential elements, except the value of the property must be at least $250 but not more than $1,500. RCW 9A.56.140(1), .160.
Possession of property may be either actual or constructive. State v. Partin, 88 Wn.2d 899, 905, 567 P.2d 1136 (1977). Constructive possession occurs when the defendant has dominion and control over the item itself or the premises where it is located. State v. Summers, 45 Wn. App. 761, 763, 728 P.2d 613
(1986). We examine the totality of the situation to see if there is substantial evidence tending to establish circumstances from which the trier of fact reasonably could have inferred Mr. Brown had dominion and control over the stolen trailer and its contents. State v. Morgan, 78 Wn. App. 208, 212, 896 P.2d 731, review denied, 127 Wn.2d 1026 (1995).
`A person acts knowingly or with knowledge when: (i) he is aware of a fact, facts, or circumstances or result described by a statute defining an offense; or (ii) he has information [that] would lead a reasonable man in the same situation to believe that facts exist which facts are described by a statute defining an offense.’ RCW 9A.08.010(1)(b). In other words, if Mr. Brown had information that reasonably should have led him to believe the fact that the trailer and its contents were stolen, the jury was entitled to find he acted knowingly. Id. Although bare possession of recently stolen property does not establish a person knew the property was stolen, `that fact plus slight corroborative evidence of other inculpatory circumstances tending to show guilt will support a conviction.’ State v. Ford, 33 Wn. App. 788, 790, 658 P.2d 36 (1983).
Here, Shalem Hosking testified she saw the truck and trailer traveling erratically from one side of the road to the other. She saw the trailer hit the guardrail. Trooper Phelps found license plates both inside and outside the trailer. Deputy Mathena located the truck and followed it until it collided with a parked vehicle. The deputy arrested the driver of the truck. He then noticed the truck was gone. When it was located one-half mile away, a K-9 unit was brought to do a scent track. The dog picked up a track at the scene and located Mr. Brown in a tree. He had a backpack containing brass knuckles, night vision binoculars, screwdrivers, and a map. Deputy Mathena testified that through his experience and training, he was aware of the use of night vision binoculars in criminal activity.
Based on this evidence and the totality of the situation, the trier of fact could reasonably have inferred Mr. Brown had dominion and control over the trailer and its contents. The corroborating evidence was also sufficient to lead a reasonable person in Mr. Brown’s position to believe the trailer and its contents were stolen. The jury found him guilty of possession of stolen property. Given the deference accorded to the finder of fact, the evidence was sufficient to support the convictions.
Mr. Brown next contends the court erred in admitting evidence the truck was stolen. He argues the evidence was irrelevant to the crimes charged and therefore prejudicial.
The admission of evidence is within the sound discretion of the trial court. State v. Stubsjoen, 48 Wn. App. 139, 147, 738 P.2d 306, review denied, 108 Wn.2d 1033 (1987). We will not disturb the trial court’s decision on review absent a showing of abuse. Id. Abuse occurs when the trial court’s discretion is `manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.’ State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
Evidence of prior bad acts is not admissible to show propensity to commit a crime, but may be admissible for other purposes, such as motive, opportunity, intent, or to provide a jury with a complete story of the events surrounding the crime as res gestae or transaction evidence. ER 404(b); State v. Trickler, 106 Wn. App. 727, 732-34, 25 P.3d 445 (2001). Under the res gestae or “same transaction” exception to ER 404(b), evidence of other crimes is admissible to complete the story of a crime or to provide the immediate context for happenings near in both time and place to the crime. State v. Fish, 99 Wn. App. 86, 94, 992 P.2d 505 (1999) (quoting State v. Lane, 125 Wn.2d 825, 831, 889 P.2d 929 (1995)), review denied, 140 Wn.2d 1019 (2000).
To admit evidence of other crimes or misconduct, a court must (1) find by a preponderance of the evidence the misconduct occurred; (2) determine whether the evidence is relevant; (3) state on the record the purpose for which the evidence is being introduced; and (4) balance the probative value of the evidence against the danger of unfair prejudice. State v. Lough, 125 Wn.2d 847, 852-53, 889 P.2d 487 (1995). Evidence is relevant, and thus admissible, if it has any tendency to make the existence of any fact of consequence to the determination of an action more or less probable. ER 401; ER 402. But a defendant who commits a string of connected offenses may not force the prosecution to present a `truncated or fragmentary version’ of the charged offense by arguing that evidence is inadmissible because it tends only to show the defendant’s bad character. Lane, 125 Wn.2d at 832. Evidence of uncharged criminal conduct inseparable from a whole criminal scheme is both relevant and admissible. State v. Tharp, 27 Wn. App. 198, 205, 616 P.2d 693
(1980), aff’d, 96 Wn.2d 591, 637 P.2d 961 (1981).
Here, the court heard argument as to whether evidence of the stolen truck for which Mr. Brown had not been charged should be excluded. The State argued the truck was part of the res gestae exception to ER 404(b). The record reflects the court balanced the necessary factors before admitting the evidence. The court concluded the evidence was relevant, admissible for reasons underlying the res gestae exception, and was being admitted to establish the knowledge element of the offense of possession of stolen property. The court stated:
Well, in this particular case the Defendant is charged with possession of stolen property, which would be the four-wheeler, as I understand it, and the trailer that was dislodged in Douglas County. I think the fact that at the same time that he was riding in a stolen vehicle and anything attributed to that may help the jury in determining whether or not the Defendant had knowledge and all those other things.
Report of Proceedings at 22.
The court then considered the prejudicial effect of the evidence: `I don’t disagree it’s probably prejudicial, but not any more prejudicial than the four-wheeler being stolen or stolen property or the trailer being stolen property, so I think the Court would allow it.’ Id.
The fact the truck was stolen and used to tow stolen items was admissible under the res gestae exception to ER 404(b). In addition to supporting the knowledge element for the crimes charged, the evidence also completed the story and provided an immediate context as to the crimes for which he was charged. The court did not abuse its discretion by admitting evidence the truck was stolen.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
BROWN, J. and KULIK, J., concur.