STATE v. SHAFFER, 141 Wn. App. 1024 (2007)

No. 35826-3-II.The Court of Appeals of Washington, Division Two.
November 6, 2007.

Appeal from a judgment of the Superior Court for Pierce County, No. 05-1-03747-6, Linda CJ Lee, J., entered January 19, 2007.

Affirmed by unpublished opinion per Bridge-water, J., concurred in by Houghton, C.J., and Hunt, J.

BRIDGEWATER, J.

Bridget[1] Mary Shaffer appeals her conviction for unlawful possession of a controlled substance. We affirm.

Possession of the Controlled Substance
Bridget Mary Shaffer and Daniel Houser lived together in a residence owned by John Kreiss.

A confidential informant, Kenneth Harvey, made three purchases of methamphetamine from both Houser and Shaffer. According to Harvey, Shaffer was present during each transaction, which occurred inside her bedroom, and she personally handled the money and drugs on the second and third visits.

After Harvey’s third visit, police officers obtained a warrant to search the Kreiss residence for methamphetamine. During the search, officers found a plastic bag of methamphetamine tucked under a fitted sheet at the foot of Shaffer’s bed, and a pipe containing trace amounts of methamphetamine on a desk in Shaffer’s bedroom.

The State charged Shaffer with one count of unlawful possession of a controlled substance (count I), two counts of unlawful delivery of a controlled substance (counts II and III), and one count of unlawful use of a building for drug purposes (count IV).[2]

At trial, Shaffer testified that she did not use or sell methamphetamine, that she did not know there were any illegal drugs inside the residence, and that the methamphetamine belonged to Houser.

The jury found Shaffer guilty on all four counts.

ANALYSIS
Shaffer does not challenge her convictions for delivery or unlawful use of a building for drug purposes. Shaffer only contends that the evidence at trial was insufficient to prove she had actual or constructive possession of the methamphetamine discovered at the residence. We disagree.

When a defendant challenges the sufficiency of evidence in a criminal case, we review the evidence in the light most favorable to the State State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004). Evidence is sufficient to support a conviction when it permits a rational trier of fact to find that the State established the essential elements of the crime beyond a reasonable doubt. Thomas, 150 Wn.2d at 874.

A defendant’s challenge to the sufficiency of the evidence admits the truth of the State’s evidence, from which we draw all possible inferences. Thomas, 150 Wn.2d at 874. We defer to the finder of fact on issues of conflicting testimony, witness credibility, and persuasiveness of the evidence. Thomas, 150 Wn.2d at 874-75.

RCW 69.50.4013(1)[3] requires the State to prove that the defendant was in possession of a controlled substance. Possession can be either actual or constructive. State v. Staley, 123 Wn.2d 794, 798, 872 P.2d 502
(1994). Actual possession requires that the controlled substance be in the personal, physical custody of the person charged with the crime State v. Callahan, 77 Wn.2d 27, 29, 459 P.2d 400 (1969). Because there is nothing in the record to show Shaffer was in physical custody of methamphetamine, the evidence presented at trial must support a finding of constructive possession.

Constructive possession requires that the person charged had “dominion and control” over the drugs in question or the premises in which they are discovered. Callahan, 77 Wn.2d at 29. Exclusive control over the drugs or premises is not required to establish constructive possession, but mere proximity to a controlled substance is insufficient to show dominion and control. State v. Bradford, 60 Wn. App. 857, 862, 808 P.2d 174
(1991), review denied, 117 Wn.2d 1003 (1991). Various indicia determine dominion and control, and the cumulative effect of a number of factors is a strong indication of constructive possession. State v. Partin, 88 Wn.2d 899, 906, 567 P.2d 1136 (1977). Thus, we must look at the totality of the situation. Partin, 88 Wn.2d at 906. If sufficient evidence tends to establish circumstances from which the jury can reasonably infer the defendant had dominion and control of the drugs, then constructive possession is established. Partin, 88 Wn.2d at 906.

We hold the evidence at trial sufficiently established that Shaffer had constructive possession of the methamphetamine in question. First, Shaffer testified that the home where police discovered the methamphetamine was her primary residence since 2000. Second, testimony revealed the police discovered methamphetamine under the fitted sheet on her bed that she shared with Houser, and a pipe with methamphetamine on the desk in her bedroom. Third, testimony revealed Shaffer personally participated in two sales of methamphetamine in her bedroom with Harvey. The totality of this evidence would permit a reasonable jury to infer that Shaffer had dominion and control of the drugs. Finally, the trial court submitted to the jury the issue of whether Shaffer’s possession was “unwitting,” and the jury found against her.[4] CP at 33.

We hold that sufficient evidence supported the jury’s finding that Shaffer had possession of the methamphetamine.

Affirmed.

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.

HOUGHTON, C.J., HUNT, J. concur.