No. 29857-1-II.The Court of Appeals of Washington, Division Two.
Filed: May 25, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Clark County. Docket No. 02-1-02045-3. Judgment or order under review. Date filed: 01/08/2003. Judge signing: Hon. Robert L Harris.
Counsel for Appellant(s), Lisa Elizabeth Tabbut, Attorney at Law, 1402 Broadway St, Longview, WA 98632-3714.
Counsel for Respondent(s), Thomas C. Duffy, Attorney at Law, 1013 Franklin St, PO Box 5000, Vancouver, WA 98666-5000.
ARMSTRONG, J.
Zachary Finders appeals his jury conviction for second degree possession of stolen property. He argues that there was insufficient evidence for the jury to find he actually or constructively possessed the stolen property. We affirm.
FACTS
On October 2, 2002, someone entered Kathleen Honore’s home and stole a toolbox (worth $100-$150), a camcorder (worth $600-$700), and jewelry and a money clip (worth $150-$200 combined). The thief or thieves also took a book of Honore’s checks. The police learned that Casey Walser had attempted to cash one of Honore’s checks for $150.00 at the Cash Connection. Walser told the Cash Connection clerk that Honore had paid him by check for some yard work. The clerk refused to cash the check.
Officers Williams and Geddry went to Walser’s residence to talk with him about the check. Zachary Finders and Walser’s neighbor, Nick, were present.
Geddry found Finders in the bathroom on the toilet. Finders said he was going to the bathroom; Geddry told him to hurry. When Finders came out, Williams handcuffed him and took him to a patrol car. Williams then searched Finders and found the dishonored check in his front pocket.
Geddry returned to the bathroom and found Honore’s checkbook floating in the toilet bowl. Nobody had been in the bathroom between the time Finders exited and the time Geddry found the checkbook.
Williams also found Honore’s camcorder and toolbox on the couch, along with a coat. Inside the coat, Williams found three watches, a money clip, a pearl necklace, a keychain, two sets of earrings, and a set of golf tees. Most of the items belonged to Honore and her husband Walser told Williams that `a guy who stopped by’ gave him the check and brought over the toolbox. Report of Proceedings (RP) at 86.
The State charged Finders with second degree possession of stolen property, second degree identity theft, and second degree theft. On the first day of trial, the State amended the information, changing the theft charge to a forgery charge. The language and penalties were the same for the theft and forgery charges.
At trial, Walser testified that several people were in and out of his house on October 2. He did not remember who gave him the check or who brought the toolbox or camcorder into the apartment. Although Finders was in Walser’s bathroom when the police arrived, Walser testified that he did not know or recognize Finders.
The jury found Finders guilty of all three crimes. The judge sentenced Finders to an upper end standard range sentence of 27 months for identity theft, and 18 months each for forgery and possession of stolen property, running concurrently.
ANALYSIS I. Sufficiency of Evidence
Finders argues that there was insufficient evidence for the jury to find him guilty of `knowingly receiving, retaining, possessing, concealing, or disposing of stolen property.’ App. Br. at 4; RCW 9A.56.160(1)(a), 140(1). Finders does not dispute the other elements of the crime (that the property was stolen, that it was worth more than $250, or that the crime occurred in Washington).
Evidence is sufficient to support a conviction if, viewed in the light most favorable to the prosecution, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). `A claim of insufficiency admits the truth of the State’s evidence and all inferences that reasonably can be drawn therefrom.’ Salinas, 119 Wn.2d at 201
(citations omitted). Circumstantial evidence and direct evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99
(1980).
Possession may be actual or constructive. State v. Callahan, 77 Wn.2d 27, 29, 459 P.2d 400 (1969). A person has actual possession when he has physical custody of the item and constructive possession when he has dominion and control over the item. Callahan, 77 Wn.2d at 29 (citing State v. Walcott, 72 Wn.2d 959, 435 P.2d 994 (1957)). Mere proximity is not sufficient to establish constructive possession. State v. Mathews, 4 Wn. App. 653, 656, 484 P.2d 942 (1971).
Here, Finders had a piece of the stolen property (the check) in his pocket. And the remainder of the victim’s checks were found in the toilet after Finders left the bathroom and before anybody else had entered. The jury could have inferred that Finders had `dominion and control’ over the checkbook in the toilet. The jury could also infer that Finders possessed the unclaimed coat containing the victim’s stolen jewelry, money clip, golf tees and keychain. Walser told Williams that he did not know who owned the coat. And the only other person present when police arrived was Nick, who did not claim the coat. The jury could also infer that whoever possessed the coat also possessed the camcorder and toolbox on the couch near the coat. In short, Finders’s presence in the apartment in actual possession of the check and the checkbook tie him to the other stolen property in the apartment, particularly because neither of the other two men in the apartment claimed the coat or other property.
Finders relies on Callahan. There, the police found a cigar box of illegal drugs sitting between the defendant and another man. Callahan, 77 Wn.2d at 28. The men were on a houseboat where the defendant was temporarily staying, and the defendant admitted handling the drugs earlier that day. Callahan, 77 Wn.2d at 28. But in Callahan, another individual testified that the drugs were his and that he had sole control over them. Callahan, 77 Wn.2d at 31. And that testimony was substantiated by others. Callahan, 77 Wn.2d at 31. Thus, Callahan is distinguishable.
Finders also objects to the use of Walser’s inconsistent statements as `substantive evidence’ against him. App. Br. at 2. The State impeached Walser with his inconsistent statements. Finders objected and the trial judge instructed the jury that it could use the evidence only to determine Walser’s credibility. We presume that jurors follow instructions. State v. Cunningham, 51 Wn.2d 502, 505, 319 P.2d 847 (1958) (citing Traverso v. Pupo, 51 Wn.2d 149, 152, 316 P.2d 462 (1957)). We find no error in the court’s rulings on the impeachment evidence.
II. Pro Se Statement of Additional Grounds
RAP 10.10 permits an appellant in a review of a criminal case to file a pro se statement of additional grounds to identify and discuss those matters that he believes have not been adequately addressed by counsel. In his statement of additional grounds for review, Finders raises the issues of same criminal conduct and prosecutorial misconduct. He also challenges the judge’s discretion and the sufficiency of the evidence.
A. Same Criminal Conduct
Finders cites to RCW 9.94A.589(1)(a), and states the definition of `[s]ame [c]riminal [c]onduct.’ Stmt. of Add’l Grounds, Ground 1. But he does not clearly identify the alleged error as required by RAP 10.10(c). Presumably, he is arguing that the three crimes for which the jury convicted him (second degree possession of stolen property, second degree identity theft, and forgery) were same criminal conduct and should have been treated as such for sentencing.
Finders did not raise this issue below. And we generally will not review the issue of same criminal conduct first raised on appeal. See In re Pers. Restraint Petition of Goodwin, 146 Wn.2d 861, 875, 50 P.3d 618
(2002).
Because the error is not clearly identified and was not raised below, we decline to address the issue.
B. Prosecutorial Misconduct
Finders argues that the prosecutor engaged in misconduct by amending the second degree theft charge to a forgery charge the morning of trial. Finders argues this violated his due process rights because it did not allow him `adequate time to prepare a proper defense.’ Stmt. of Add’l Grounds, Ground 2. Generally, the court may permit the State to amend the information at any time before a verdict if such amendment does not prejudice the substantial rights of the defendant. CrR 2.1(d). Here, the State did not present the amended information until the first day of trial. But the only change, as the trial court noted, was a change in caption. The amended information identified the charge as `forgery’ instead of `theft,’ but the language and penalties were the same for both charges. RP at 1-2.
Finders has failed to show that the filing of the second amended information prejudiced him. He has not shown prosecutorial misconduct.
C. Evidentiary Issues
Finders next asserts that evidence was not logged properly or printed or retained. Stmt. of Add’l Grounds, Ground 3. And he argues ownership was never proven. Finders does not clearly identify the `nature and occurrence’ of the alleged error as required by RAP 10.10(c). And `ownership’ is not an issue. Accordingly, we decline to address the argument.
D. Judicial Discretion
Finally, Finders challenges the judge’s `discretion and the sufficiency of his decisions to overrule.’ Stmt. of Add’l Grounds, Ground 4. Again, Finders does not clearly identify the alleged error as required by RAP 10.10(c). And we are not required to search the record in support of claims of alleged error. RAP 10.10(c). We decline to address this issue.
Finding no error, we affirm.
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.
SEINFELD, J. and QUINN-BRINTNALL, C.J., concur.