State Of Washington, Resp-cross App v. Vincent William Barbee, App-cross Resp ( 2016 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
DIVISION ONE
Respondent,
No. 73027-4-1
UNPUBLISHED OPINION
VINCENT WILLIAM BARBEE,
Appellant. FILED: March 7, 2016
Dwyer, J. — Vincent Barbee appeals from the judgment entered on a
jury's verdict finding him guilty of one count of unlawful possession of a firearm in
the first degree. Barbee contends that insufficient evidence was presented to
prove either that he possessed a firearm or that he did so knowingly. Finding no
error, we affirm.
On July 28, 2014, U.S. Marshalls were actively searching for Barbee in the
Marysville area because he had active warrants for his arrest. Deputy U.S.
Marshall John Westland was looking for a specific vehicle—a green Pontiac
Grand Am—and learned over the radio that the vehicle he sought had been
spotted pulling into the Arco gas station located at the intersection of Fourth and
Beach streets. Westland saw Barbee park the green Grand Am. Jennifer Olson,
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whom Westland recognized as Barbee's known girlfriend, was seated in the
vehicle's passenger seat.
Westland coordinated the arrest plan via radio while Barbee made a
purchase inside the convenience store attached to the Arco. When Barbee
exited the convenience store, he walked toward the green Grand Am but, upon
seeing law enforcement officers approaching, he turned around and ran north.
Ultimately, Barbee ran only 40 to 50 yards across Beach Street to a Chevron gas
station across the street. Finding his escape routes blocked, Barbee turned to a
deputy and said, "Okay. Igive up," then threw his cell phone and "proned himself
out on the ground."
Deputies searched the green Grand Am that Barbee had been driving.
Deputy U.S. Marshall Justin Strock observed that "the trunk and the entire of the
backseat, even up to the front seat, was kind ofstrewn with men's and women's
clothes. A lot of things piled up." Deputy U.S. Marshall Robert Gerg opened the
glove compartment and found a credit card bearing Barbee's name as well as a
change of address form in Olson's name. Inside the trunk, Gerg located a small,
black metal lockbox. It was located "as you face the trunk, on the left side behind
the wheel well, against the fender." He handed this locked box to Washington
State Department of Corrections probation officer Michael Woodruff.
Immediately adjacent to the lockbox in the trunk was a green envelope folder
containing "a bunch of documents with [Barbee's] name on [them]." These
documents included blank checks with Barbee's name on them, pay stubs issued
to Barbee, and a Cash Express loan application in Barbee's name. The folder
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also contained an address book with business cards and contact information
inside, with the front page bearing the name "Vince Barbee."
Woodruff searched the vehicle as well and noticed the extremely cluttered
contents. He located a Tulalip Players card in Barbee's name at the very bottom
of the vehicle's full center console. He found another players card in Barbee's
name inside a backpack in the backseat.
Woodruff attempted to open the lockbox that Gerg had located in the
trunk. He tried all of the keys he could find, including the keys on the same key
ring as the vehicle's ignition key and multiple loose keys found on the vehicle's
floorboard. None of them opened the lockbox. Woodruff then located a small
knife on the vehicle's floorboard and was able to "gently" pry the lockbox open
with the knife. Inside the lockbox he found a small handgun and one round of .22
caliber ammunition. He subsequently tested the firearm and confirmed that it
was functional.
Deputy Marcus Dill confronted Barbee at the scene of his arrest about the
handgun that was found in the trunk of his vehicle. Barbee claimed that the car
was not his and that he had never accessed the trunk.
On August 13, 2014, the State charged Barbee by information with one
count of unlawful possession of a firearm in the first degree and further alleged
that Barbee was under community custody when the crime occurred. RCW
9.41.040(1); RCW 9.94A.525(19). The information was amended on October 17,
2014 in order to identify with specificity Barbee's prior second degree burglary
No. 73027-4-1/4
conviction as the "serious offense" that elevated the charge to first degree status.
RCW 9.41.010(3)(a), (21)(a). Barbee exercised his right to a jury trial.
At trial, the State called as witnesses the law enforcement officers who
were involved in Barbee's arrest and the subsequent search of the green Grand
Am. The State also called Olson as a witness. She testified that, at the time of
Barbee's arrest, the two were dating and living together at a mutual friend's
house. She denied that they were living out of their car, instead claiming that the
car was so full of personal items because they were "transporting [their] stuff
from one place to the other." On the day of Barbee's arrest, Olson had told the
officers that she was in the process of purchasing the vehicle but did not yet
consider it hers because she was still making payments toward it. At trial,
however, she acknowledged that she and Barbee were in the process of buying
the car together.
When asked to describe the contents of the vehicle on the day of the
arrest, Olson acknowledged that the contents belonged both to her and to
Barbee. She specifically recalled that the vehicle's trunk contained her own
speakers and Barbee's "bank information." When asked if she had participated
in loading property into the vehicle's trunk, Olson answered that she had "helped
load the whole car," implying that she and Barbee had combined their efforts to
load it. The prosecutor then asked whether it was true that Barbee had been the
only one who loaded the trunk. Olson answered, "No, because Ihelped load the
car."
No. 73027-4-1/5
The prosecutor then presented Olson her handwritten statement, signed
under penalty of perjury, which she had given to the officers on the day of
Barbee's arrest. Olson admitted that she had written, "Only Vince has been in the
trunk." However, Olson asserted that her written statement was false and that
Dill had threatened to throw her in jail if she did not write what he told her to
write. She also claimed that she did not know "what perjury really mean[t]."
Dill denied making any threats or telling Olson what to write in her
statement. Furthermore, Woodruff testified that he recalled Olson stating on the
date of the arrest that Barbee was the only one who had loaded anything into the
trunk for about a week or more.
The State also presented testimony about extensive—but, ultimately,
inconclusive—forensic testing that was performed on the lockbox and the
handgun that it contained. AWashington State Patrol latent print examiner,
James Luthy, located one fingerprint on the top ofthe lockbox and excluded
Barbee as the person who left the print. There was no way to determine how
many other people had touched the lockbox or how long the lone fingerprint had
been on the lockbox. The handgun did not have any prints on it, which was of no
surprise to Luthy, as it is "pretty rare" for an impression to be left on a brushed
metal surface.
Another State Patrol forensic scientist, Mariah Low, discussed DNA
(deoxyribonucleic acid) testing performed on the lockbox and the handgun. She
swabbed the sides, top, and handle of the lockbox in an effort to collect "touch
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No. 73027-4-1/6
DNA,"1 and determined that the collected sample contained a mixture of at least
three people's DNA. However, the quantity of DNA was too small to include or
exclude Barbee (who voluntarily provided a known DNA reference sample) as a
contributor to the lockbox touch DNA mixture. Likewise, Low swabbed the
handgun to collect potential touch DNA and identified a mixture of DNA
contributed by at least three people. But, just as the touch DNA on the lockbox
had been, the handgun touch DNA sample was insufficient to include or exclude
Barbee as a contributor.
Just before the State rested, the court instructed the jury pursuant to the
parties' stipulation that "the defendant has previously been convicted of a serious
offense for purposes of proving that element ofthe charge of unlawful
possession of a firearm in the first degree." The jury returned a verdict of guilt.
The court imposed a DOSA sentence2 of 50.75 months in prison, followed by
50.75 months on community custody.
II
Barbee contends that insufficient evidence supports his conviction. This is
so, he asserts, because the evidence adduced at trial does not support the jury's
finding that he knowingly possessed a firearm. We disagree.
In determining the sufficiency ofthe evidence, the standard of review 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 charged crime
1This is also known as "cellular DNA." Low testified that it is DNA that comes from skin
cslls
2Drug Offender Sentencing Alternative, or DOSA, is an alternative to traditional
incarceration that is designed to provide chemical dependency treatment and supervision for
addicted offenders.
No. 73027-4-1/7
beyond a reasonable doubt." State v. Rempel. 114 Wn.2d 77, 82, 785 P.2d 1134(1990). "A claim of insufficiency admits the truth of the State's evidence and all
inferences that reasonably can be drawn therefrom." State v. Salinas, 119
Wn.2d 192, 201, 829 P.2d 1068 (1992).
The pertinent statute provides that
[a] person ... is guilty of the crime of unlawful possession of a
firearm in the first degree, if the person owns, has in his or her
possession, or has in his or her control any firearm after having
previously been convicted ... in this state or elsewhere of any
serious offense as defined in this chapter.
RCW 9.41.040(1 )(a).
Hence, as the court's instructions to the jury provided, in order for the jury
to convict Barbee as charged, it was required to find, in pertinent part, that, "on or
about July 28, 2014, the defendant knowingly had a firearm in his possession or
control." Jury Instruction 8.
Barbee contends that the State failed to prove either knowledge or
possession.
A
Barbee first asserts that the State failed to prove that he possessed the
gun that was located in the trunk ofthe green Grand Am.
"Possession may be actual or constructive." State v. Echeverria, 85 Wn.
App. 777, 783, 934 P.2d 1214 (1997). Actual possession requires the item be in
the actual physical custody ofthe person charged with the crime. State v.
Callahan, 77 Wn.2d 27, 29, 459 P.2d 400 (1969). Herein, Barbee did not have
No. 73027-4-1/8
actual physical custody of the gun. Thus, the State was required to prove that he
had constructive possession of it.
"[Constructive possession can be established by showing the defendant
had dominion and control over the firearm or over the premises where the firearm
was found." Echeverria. 85 Wn. App. at 783. No single factor is dispositive in
determining dominion and control; the totality of the circumstances must be
considered. State v. Collins. 76 Wn. App. 496, 501, 886 P.2d 243 (1995). The
ability to reduce an object to actual possession is an aspect of dominion and
control. Echeverria. 85 Wn. App. at 783. Dominion and control does not have to
be exclusive to establish constructive possession, State v. Porter, 58 Wn. App.
57, 63 n.3, 791 P.2d 905 (1990), but close proximity alone is not enough to
establish constructive possession. State v. Spruell, 57 Wn. App. 383, 388-89,
788 P.2d 21 (1990). "Courts have found sufficient evidence of constructive
possession, and dominion and control, in cases in which the defendant was
either the owner of the premises or the driver/owner of the vehicle where
contraband was found." State v. Chouinard, 169 Wn. App. 895, 899-900, 282
P.3d 117 (2012): see, e.g.. State v. Bowen. 157 Wn. App. 821, 828, 239 P.3d
1114 (2010); State v. Turner, 103 Wn. App. 515, 521, 13 P.3d 234 (2000);
Echeverria. 85 Wn. App. at 783; State v. McFarland. 73 Wn. App. 57, 70, 867
P.2d 660 (1994), affd, 127 Wn.2d 322, 899 P.2d 1251 (1995); State v. Reid. 40
Wn. App. 319, 326, 698 P.2d 588 (1985).
Herein, the evidence adduced at trial was replete with indications that
Barbee exercised dominion and control over the premises in which the firearm
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No. 73027-4-1/9
was found, the green Grand Am. For example, it was uncontroverted that
Barbee drove the vehicle and possessed keys to it. The evidence also
established that Barbee and Olson utilized the vehicle as a storage space for
their possessions, if not also as a de facto residence. Moreover, Olson told
police that, although both she and Barbee had used the vehicle, only Barbee had
accessed the trunk.3 As set forth above, this evidence is sufficient to support an
inference—upon which the jury was entitled to rely—that Barbee had dominion
and control over not only the vehicle, but also the firearm located within it.4
Moreover, Barbee's ability to take actual possession of the handgun was
demonstrated through the testimony of Woodruff, who was able to open the
lockbox and access the gun using a knife that he found on the floorboard of
Barbee's vehicle. Barbee had access to the same knife. Barbee also had
possession of the key to the trunk that contained the lockbox. Therefore,
Barbee, too, could have used the knife to gently "pop" open the lockbox.5
The record contains sufficient evidence to support the jury's determination
that Barbee had "dominion and control" over the gun and, thus, had constructive
possession of the firearm.
3Hearsay statements admitted without objection are competent evidence sufficient to
support a finding that the statement is true. See State v. Rochelle. 11 Wn. App. 887, 889, 527
P.2d87(1974). j iu .. , .
4Barbee's argument to the contrary relies upon the fact that he possessed the vehicle in
common with Olson. While this istrue, at least as regards the use ofthe vehicle in general (but
not as regards access to the vehicle's trunk), it is of no moment to our analysis. As set forth
above, exclusive ownership or possession is not required to establish constructive possession.
5Barbee's further argument to the contrary relies on the absence of DNA evidence
affirmatively linking him to the firearm. He cites no authority for the proposition that such
evidence is required to sustain his conviction.
No. 73027-4-1/10
B
Barbee next asserts that the State failed to prove that he knowingly
possessed the gun found in the trunk of the green Grand Am.
As the jury was instructed,
A person knows or acts knowingly or with knowledge with
respect to a fact or circumstance when he is aware of that fact or
circumstance. It is not necessary that the person know that the fact
or circumstance is defined by law as being unlawful or an element
of a crime.
If a person has information that would lead a reasonable
person in the same situation to believe that a fact exists, the jury is
permitted but not required to find that he acted with knowledge of
that fact.
Jury Instruction 10; accord RCW 9A.08.010(1)(b).
"Knowledge may be inferred when the defendant's conduct
indicates the requisite knowledge as 'a matter of logical probability.'"
State v. Warfield. 119 Wn. App. 871, 884, 80 P.3d 625 (2003) (quoting
State v. Stearns. 61 Wn. App. 224, 228, 810 P.2d 41 (1991)). Although
knowledge may be inferred from the surrounding facts and circumstances,
it may not be inferred from evidence that is "'patently equivocal.'" State v.
Vasquez, 178 Wn.2d 1, 8, 309 P.3d 318 (2013) (quoting State v. Woods.
63 Wn. App. 588, 592, 821 P.2d 1235 (1991)). "A reasonable inference of
knowledge of the item possessed can come from an extended period of
control ofthe premises." State v. Gerke. 6 Wn. App. 137, 142, 491 P.2d
1316 (1971); see, e.g.. State v. Weiss. 73 Wn.2d 372, 438 P.2d 610(1968); State v. Emerson, 5 Wn. App. 630, 489 P.2d 1138 (1971).
-10
No. 73027-4-1/11
Herein, the evidence adduced at trial indicated that Barbee knew of
the gun that was located within the trunk of the Grand Am. Testimony
established that Barbee and Olson, who were purchasing the vehicle
together, had enjoyed possession of the Grand Am for approximately one
month at the time of Barbee's arrest. Moreover, they had used the vehicle
not only for travel, but also as a storage space. Barbee's and Olson's
possessions were "piled up" inside the vehicle—in both the passenger
compartment and the trunk. In the trunk, immediately adjacent to the
lockbox in which the gun was found, was a green envelope folder
containing documents with Barbee's name on them. These documents
included blank checks with Barbee's name on them, pay stubs issued to
Barbee, and a Cash Express loan application in Barbee's name.
Furthermore, evidence was presented that, on the date of Barbee's arrest,
Olson told police that "only" Barbee had accessed the vehicle's trunk.
From this evidence of Barbee's control over the vehicle, particularly the
trunk, for an extended period of time, there is a reasonable inference—
upon which the jury was free to rely—that Barbee knew of the presence of
the firearm in the vehicle.
Additionally, the State presented evidence that Barbee tried to
minimize his connection to the vehicle, and the trunk in particular, when
speaking to officers on the day of his arrest. Specifically, Barbee claimed
that day that the vehicle was not his and that he had never accessed its
trunk. The jury reasonably could have perceived Barbee's efforts in this
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No. 73027-4-1/12
regard as evidence of his consciousness of guilt and, thus, as evidence of
his knowledge of the presence of the gun in the vehicle's trunk.
The record contains sufficient evidence to support the jury's
determination that Barbee knew that a firearm was located in the trunk of
his vehicle. Therefore, sufficient evidence was presented to support
Barbee's conviction.
Affirmed.
We concur:
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