No. 62363-0-I.The Court of Appeals of Washington, Division One.
January 11, 2010.
Appeal from a judgment of the Superior Court for King County, No. 07-1-08473-4, Palmer Robinson, J., entered August 21, 2008.
Affirmed by unpublished opinion per Cox, J., concurred in by Appelwick and Leach, JJ.
COX, J.
Evidence is sufficient to support a conviction if, when viewed in the light most favorable to the State, any rational trier of fact could have found beyond a reasonable doubt the essential elements of the crime.[1] Here, there was sufficient evidence upon which a rational trier of fact could find that Andrew McGuire had constructive possession of a firearm. Additionally, the trial court did not abuse its discretion in refusing to give the “mere proximity” instruction proposed by McGuire. Nor does the additional ground raised by McGuire in a pro se brief warrant relief. We affirm.
On September 10, 2007, officers from the King County Sherriff’s Department and the Department of Corrections (DOC) converged on a home in north Seatac, looking for two individuals who were under DOC’s supervision. The home belonged to McGuire’s mother, Jennifer DelFierro. One of the individuals whom the officers were looking for is DelFierro’s son, Christopher Schmaltz.
DelFierro told the officers that Schmaltz was not at her home, but gave the officers permission to enter the house and look around. DelFierro’s house has two bedrooms. DelFierro keeps the second bedroom as “the kid’s room,” where McGuire, McGuire’s son, or McGuire’s cousin sleep when they stay over.
The officers entered this second bedroom and saw McGuire lying on a bed. As they entered the room, they announced themselves as being from DOC. Two officers noticed McGuire open his eyes and then close them. McGuire’s eyes remained closed and he was initially unresponsive, but the officers did not believe he was sleeping.
At some point, McGuire opened his eyes and began speaking with the officers. A DOC officer saw a gun hanging in a shoulder strap on a closet door near the bed. After the officers determined McGuire’s actual identity, they learned that there were warrants out for him and that he had been convicted of a serious offense.[2] The officers arrested McGuire.
The State charged McGuire with unlawful possession of a firearm in the first degree and violation of the uniform controlled substances act. A jury convicted him as charged.
McGuire appeals.
SUFFICIENCY OF EVIDENCE
McGuire argues that there was insufficient evidence to convict him of unlawful possession of a firearm in the first degree because the State failed to prove his constructive possession. We disagree.
Evidence is sufficient to support a conviction if, when viewed in the light most favorable to the State, any rational trier of fact could have found beyond a reasonable doubt the essential elements of the crime.[3] “When the sufficiency of the evidence is challenged in a criminal case, all reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant.”[4] “A claim of insufficiency admits the truth of the State’s evidence and all inferences that reasonably can be drawn therefrom.”[5]
Under RCW 9.41.040(1), a person is guilty of the crime of unlawful possession of a firearm in the first degree if the person knowingly has in his or her possession, or has in his or her control any firearm after having previously been convicted of any serious offense.[6] McGuire stipulated at trial that he had previously been convicted of a serious offense. Thus, the issue on appeal is whether there was sufficient evidence to establish his possession or control of the firearm.
Possession may be either actual or constructive.[7] Actual possession occurs when the weapon is in the actual physical custody of the person charged with possession.[8] A jury may find a defendant constructively possessed a firearm if the defendant had dominion and control over it or over the premises where the firearm was found.[9] Dominion and control need not be exclusive to establish constructive possession.[10]
Close proximity alone is not enough to establish constructive possession — other facts must enable the trier of fact to infer dominion and control.[11] The ability to reduce an object to actual possession is an aspect of dominion and control.[12] Factors that point to dominion and control also include knowledge of the illegal item on the premises and evidence of residency or tenancy.[13]
Constructive possession is established by examining the totality of the situation and determining if there is substantial evidence from which a jury can reasonably infer the defendant had dominion and control over the item.[14]
At McGuire’s trial, community corrections officer Leon Neal testified that when he and other officers entered a bedroom in DelFierro’s house, he saw McGuire lying in a bed. Officer Neal saw McGuire “open his eyes and then close them.” Officer Neal did not believe that McGuire was sleeping.
Another officer asked McGuire his name, and McGuire mumbled a response. As that officer was speaking to McGuire, Officer Neal glanced around the room for officer safety purposes. Officer Neal described that he saw a closet next to the bed, “the [closet] door was opened, and I saw a — a shoulder strap with a firearm — a shoulder strap that contained a firearm hanging on the closet door.” Officer Neal estimated the closet door to be within two to four feet of the bed when he initially encountered it. He testified that it was within an arm’s length or reaching length of the bed.
King County Sherriff’s Detective Clayton Minshull also testified that the gun was hanging from the closet door in a holster. The gun was loaded.
A sheriff’s office fingerprint examiner testified that he was able to match a fingerprint on the magazine found inside the gun to McGuire’s left index finger.
Given the unchallenged finding that the gun was in plain sight, there was a reasonable inference for the jury to decide that McGuire knew it was there. That, together with the other facts that we discuss in the next paragraphs of this opinion, establish sufficient evidence for the jury to have found that McGuire possessed or controlled the gun that was within his reach.
McGuire likens his case to State v. Callahan[15] an State v. Spruell, [16] which held that close proximity to illegal drugs was not sufficient to establish constructive possession.[17] But the evidence here showed more than McGuire’s mere proximity to the firearm. The jury also heard testimony that McGuire’s fingerprint was on a magazine loaded inside the firearm. The placement of the fingerprint was consistent with the fact that McGuire loaded the magazine himself. Detective Minshull also testified that the gun had a round in the chamber, which would require affirmative steps beyond loading the magazine into the gun.[18] This fact further confirmed McGuire’s possession of the gun. Unlike the situation in Spruell, McGuire’s fingerprint on the magazine inside the gun and the fact that a round was in the chamber of the gun show more than just momentary handling of the weapon.[19]
The officers’ testimony that McGuire feigned sleep also factors into the totality of the situation. McGuire, not actually asleep, had the ability to quickly reach the gun and place it in his actual possession. This fact also supports a finding of constructive possession in this case.
There is sufficient evidence in this record for a jury to have found McGuire’s dominion and control over the firearm.
JURY INSTRUCTION
McGuire argues that the trial court abused its discretion in refusing to instruct the jury that proximity to a firearm is not sufficient to prove constructive possession. The State argues that McGuire did not properly preserve this alleged error for review. Without further addressing the State’s argument that the issue was not preserved, we conclude that the trial court did not abuse its discretion in denying McGuire’s proposed instruction.
Instructions are sufficient if they properly inform the jury of the applicable law without misleading the jury, and permit each party to argue its theory of the case.[20] It is not error to refuse to give a specific instruction when a more general instruction adequately explains the law and allows each party to argue its theory of the case.[21]
Trial courts have considerable discretion in wording jury instructions.[22] A trial court’s refusal to give a proposed instruction is reviewed for abuse of discretion.[23]
Here, McGuire proposed the following instruction:
In considering whether or not the defendant possessed an alleged controlled substance or object as alleged it is not enough that the defendant might have been in close proximity to the alleged drugs/object or that he might have earlier handled them with a brief and passing control.[24]
The trial court refused this instruction, instead giving the following WPIC instruction on possession:
Possession means having a firearm in one’s custody or control. It may be either actual or constructive. Actual possession occurs when the weapon 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 item. Dominion and control need not be exclusive to establish constructive possession.[25]
McGuire does not contend that the court’s instruction misstated the law or misled the jury. McGuire only argues that the trial court “clearly deprived” him of his opportunity to argue his theory of the case. We disagree.
The WPIC instruction given by the trial court did not prevent McGuire from arguing his theory of the case. He argued that although he was found near the firearm, he was not in possession of it.
In both State v. Castle[26] and State v. Portrey, [27] the court of appeals affirmed a trial court’s refusal of a similar proposed instruction because the State’s case did not rest solely on the defendant’s proximity to drugs to prove possession.[28] Similarly, here, the State’s case did not rest solely on McGuire’s proximity to the firearm to prove his possession of it, as this opinion has already addressed. The trial court did not abuse its discretion in refusing McGuire’s proposed instruction.
ADDITIONAL GROUNDS FOR REVIEW
McGuire raises one additional ground for review in a pro se statement, challenging the credibility of an officer who testified at trial. We conclude that this challenge is without merit.
The essence of McGuire’s challenge is an alleged discrepancy between the officer’s written report and his testimony at trial. McGuire’s counsel cross-examined the officer on this inconsistency. We defer to the fact finder on credibility determinations and do not review them on appeal.[29]
Accordingly, McGuire’s argument fails.
We affirm the judgment and sentence.
We Concur:
(1993).