STATE v. MARTINEZ, 19635-6-III (Wash.App. 12-13-2001)

No. 19635-6-III.The Court of Appeals of Washington, Division Three. Panel Two.
Filed: December 13, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.

Appeal from Superior Court of Grant County, No. 001004101, Hon. Evan E. Sperline, October 3, 2000, Judgment or order under review.

Counsel for Appellant(s), Paul J. Wasson II, Attorney At Law, 2521 W Longfellow Ave, Spokane, WA 99205-1548.

Counsel for Respondent(s), Carolyn J. Fair, Deputy Prosecutor, Grant Co Pros Office, P.O. Box 37, Ephrata, WA 98823.

KENNETH H. KATO, J.

Cecilio Mendoza Martinez appeals his Grant County bench trial conviction of possession of a controlled substance — cocaine. He contends the State’s belated entry of written findings of fact and conclusions of law and/or insufficient evidence that he possessed cocaine require the conviction to be reversed and dismissed. We affirm.

The facts are closely paraphrased from the court’s written findings.[1]
At approximately 11:00 p.m. on June 16, 2000, Quincy police officer Lazaro Sanchez was patrolling on F Street and stopped a pickup for a municipal code violation. The driver pulled into the nearby Akin’s Food store parking lot. Three passengers were also inside. Officer Sanchez contacted the driver and smelled intoxicants on his person and from within the vehicle. He performed field sobriety tests on the driver and arrested him for driving under the influence.

Meanwhile, Officer John Wester arrived and was attempting to identify the passengers. He and Officer Sanchez both noticed open alcohol containers in the extended cab portion of the pickup. Officer Sanchez asked the passengers to exit the vehicle. The front seat passenger exited first and that seat was then pushed forward. The left rear passenger was next asked to exit the right-side door, requiring him to go past the right rear passenger — the defendant Mr. Martinez. Both officers watched the left rear passenger’s hands very carefully as he exited. They did not see him pass or drop anything.

When Mr. Martinez finally exited the vehicle, both officers immediately observed a clear plastic baggie corner containing white powder on the extended cab floorboard where his feet had been located. The officers arrested Mr. Martinez for possession of what he later stipulated was cocaine.

Prior to Mr. Martinez exiting the vehicle, both officers specifically looked at the floorboard and neither observed the clear plastic baggie at that time. The floorboard was dark in color and both officers had searched it using a flashlight. The truck’s dome light and lighting from the Akin’s store helped illuminate the area. The seats in the extended cab were about one foot off the floorboard and faced each other from three to four feet apart. Based upon its findings, the court found Mr. Martinez guilty as charged and entered judgment and sentence on October 3, 2000. Mr. Martinez timely appealed and filed his opening brief on February 9, 2001. The State filed written findings of fact and conclusions of law for the first time on February 20. The State filed its response brief on June 7. Mr. Martinez did not file a reply or pro se supplemental brief. Mr. Martinez first contends the conviction should be dismissed with prejudice because the State’s belated filing of written findings of fact and conclusions of law in violation of CrR 6.1(d) has precluded effective appellate review. He argues that to allow the State another chance to perfect or correct the record post-sentencing and during the appeal would violate double jeopardy rules. State v. Culp, 30 Wn. App. 879, 639 P.2d 766 (1982).

The State responds that delay in entering the written findings and conclusions does not require reversal because Mr. Martinez shows no prejudice or hindrance to effective appellate review. In particular, the State asserts it has not tailored the findings to address issues raised on appeal. State v. Head, 136 Wn.2d 619, 964 P.2d 1187 (1998). CrR 6.1(d) requires the court to enter written findings of fact and conclusions of law after a bench trial.2 The purpose of the rule is to enable the appellate court to review the questions raised on appeal. Head, 136 Wn.2d at 622. The proper remedy is to vacate the judgment and sentence and remand for entry of written findings and conclusions. Id. at 622-25. Since written findings and conclusions have now been entered in accordance with CrR 6.1(d) without the taking of new evidence, Mr. Martinez’s cited case, Culp, 30 Wn. App. 879 (double jeopardy prevents prosecution for greater charge when defendant already tried for lesser offenses within that greater offense) is inapposite. See Head, 136 Wn.2d at 625 (double jeopardy rules not violated by remand solely for entry of findings and conclusions when no new evidence taken). The question is whether Mr. Martinez can show actual prejudice from their belated entry. Prejudice occurs, for example, when there is a strong indication the State has tailored the written findings and conclusions to meet the issues raised on appeal. Id. at 624-25. Mr. Martinez makes no such showing. In its oral ruling, the court found Mr. Martinez guilty based upon circumstantial evidence that he actually possessed the cocaine and dropped it on the floorboard. The court’s written findings of fact and conclusions of law finalize its decision under the same reasoning. The thrust of Mr. Martinez’s appeal is that the facts — all of which are supported by undisputed substantial evidence — do not support the legal conclusion that he was in either actual or constructive possession of the cocaine found on the floorboard. In these circumstances, the State has not tailored the findings or conclusions to gain advantage.

We find no prejudice. Mr. Martinez next contends the evidence was insufficient to support the conviction. He argues there was no evidence that he actually possessed the cocaine beyond mere passing control, State v. Staley, 123 Wn.2d 794, 800-02, 872 P.2d 502 (1994); or, that his mere proximity evinced dominion and control over the vehicle or the cocaine such that he constructively possessed it. State v. Cantabrana, 83 Wn. App. 204, 921 P.2d 572 (1996); State v. Ponce, 79 Wn. App. 651, 904 P.2d 322 (1995); State v. Hystad, 36 Wn. App. 42, 671 P.2d 793
(1983). The arguments fail.

In reviewing challenges to the sufficiency of the evidence this court is guided by State v. Green, 94 Wn.2d 216, 616 P.2d 628 (1980), which requires that the evidence and all reasonable inferences be viewed in a light most favorable to the State. The elements of an offense can be established by both direct and circumstantial evidence. State v. Thompson, 88 Wn.2d 13, 16, 558 P.2d 202 (1977), appeal dismissed, 434 U.S. 898 (1977). One is no less valuable than the other. There is sufficient evidence to support the conviction if a rational trier of fact could find each element of the crime proven beyond a reasonable doubt. The court’s findings after a bench trial are upheld if supported by substantial evidence. See State v. Mewes, 84 Wn. App. 620, 929 P.2d 505
(1997).

Here, as reflected in the court’s findings, there is substantial evidence that Mr. Martinez actually possessed the cocaine and dropped it on the floorboard near his foot just before exiting the back seat. The trier of fact could reasonably infer that no one but Mr. Martinez could have possessed the cocaine because it was not on the floorboard when the left rear passenger exited. The officers specifically watched that individual and were certain he did not drop anything. Yet the cocaine was on the floorboard when Mr. Martinez exited. From this evidence, a rational trier of fact could find beyond a reasonable doubt that Mr. Martinez must have already actually possessed the cocaine and put it on the floorboard.

In view of this sufficient, albeit circumstantial, evidence of actual possession, Mr. Martinez’s cited constructive possession cases, Cantabrana, 83 Wn. App. 204; Ponce, 79 Wn. App. 651, and Hystad, 36 Wn. App. 42, are not helpful to his cause. Nor is his reliance on Staley, in which the court described situations of passing control or fleeting momentary possession not rising to the level of actual or constructive possession. Staley, 123 Wn.2d at 800-01. Here, the only evidence was that Mr. Martinez was the sole actual possessor of the cocaine. It is the court’s province to believe or disbelieve any witness whose testimony it is called upon to consider. State v. Chapman, 78 Wn.2d 160, 164, 469 P.2d 883 (1970). The court believed the officers’ testimony that they searched and found no cocaine on the illuminated floorboard before the left rear passenger exited; and, that they watched that individual’s hands very carefully and were sure he did not drop the cocaine. The court’s credibility determinations will not be disturbed on appeal. Davis v. Dep’t of Labor Indust., 94 Wn.2d 119, 124, 615 P.2d 1279
(1980).A rational trier of fact could find the essential elements of possession of cocaine beyond a reasonable doubt. RCW 69.50.401(d); Green, 94 Wn.2d 216.

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.

WE CONCUR: BROWN, A.C.J., SCHULTHEIS, J.