State of Washington v. Janette Rae Johnson ( 2016 )

FILED
APRIL 21, 2016
In the Office of the Clerk of Court
WA State Court of Appeals, Division Ill
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 33791-0-111
Respondent, )
)
v. )
)
JANETTE R. JOHNSON, ) UNPUBLISHED OPINION
)
Appellant. )
FEARING, C.J. -Janette R. Johnson appeals her conviction of unlawful
possession of a controlled substance-methaniphetamine. She challenges the sufficiency
of the evidence to support the conviction. We affirm.
FACTS
Since Janette Johnson challenges the sufficiency of evidence, we relate trial
testimony relevant to the charge of possession of a controlled substance. Police Officer
Traci Ponto and other officers of the Code Enforcement Unit went to the residence of
Janette Johnson on April 9, 2015 to enforce a stipulated abatement order. Johnson owned
the residence and rented rooms to tenants. The order of abatement required all tenants to
leave the residence by April 3 and Johnson to vacate the home no later than April 9. The
order resulted from the home becoming crowded with drug users.
When Officer Traci Ponto and her colleagues arrived at the residence, Janette
Johnson was the only occupant. After officers conducted a protective sweep and
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State v. Johnson
permitted Johnson to remove belongings, officers perused each room on the main floors
and basement to view the condition of the premises. A basement entry lay by a stairway
off the kitchen. Two officers maneuvered a three-foot by three-foot cart or frame in order
to traverse the stairwell. At trial, Officer Ponto testified that officers might have been
able to proceed down the stairwell without moving the cart, but moving of the cart
provided easier access to the basement. The position of the cart suggested that someone
earlier lugged the cart up the stairs until the cart stuck on the stairwell. Officer Ponto
joined other officers in the basement.
Janette Johnson's residence basement housed a common area with an open room
containing a mattress and bedding on the floor. A small cubbyhole area comprised a
makeshift room with a couch. Drug paraphernalia, including rubber tubing, syringes,
bloodstained cotton, and pieces of foil littered the basement. Graffiti written on the wall
next to the stairwell cleverly declared: "There is no I in team, but there is me in meth."
Report of Proceedings (RP) at 28. In plain view on the floor next to the mattress, Officer
Traci Ponto located a syringe containing a brown liquid. The liquid field tested positive
for heroin, but later proved in laboratory testing to contain methamphetamine.
PROCEDURE
The State of Washington charged Janette Johnson with unlawful possession of a
controlled substance-methamphetamine. At trial, Officer Traci Ponto served as the
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State v. Johnson
State's principal witness. Janette Johnson did not testify or present any evidence. The
jury found her guilty as charged.
ANALYSIS
The sole issue on appeal is whether sufficient evidence supported Janette
Johnson's conviction for possessing a controlled substance. In reviewing a challenge to
the sufficiency of the evidence, we view the evidence and all reasonable inferences in a
light most favorable to the State to determine whether any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt. State v. Green, 94
Wash. 2d 216, 221, 616 P.2d 628 (1980). A claim of insufficiency admits the truth of the
State's evidence and all reasonable inferences that a trier of fact can draw from the
evidence. State v. Salinas, 119 Wash. 2d 192, 201, 829 P.2d 1068 (1992).
The crime of unlawful possession of a controlled substance requires proof of two
elements: (1) possession (2) of a controlled substance. RCW 69.50.4013(1).
Methamphetamine is a controlled substance. RCW 69.50.206(d)(2).
Possession may be actual or constructive. State v. Callahan, 77 Wash. 2d 27, 29, 459
P.2d 400 (1969). A person has actual possession when she has physical custody of the
item. State v. Callahan, 77 Wash. 2d at 29. A person has constructive possession when he
has dominion and control over the item. State v. Callahan, 77 Wash. 2d at 29. Courts
determine whether a person has dominion and control over an item by considering the
totality of the circumstances. State v. Partin, 88 Wash. 2d 899, 906, 567 P.2d 1136 (1977).
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State v. Johnson
Mere proximity to a controlled substance is not sufficient to establish constructive
possession. State v. Shumaker, 142 Wash. App. 330, 333, 174 P.3d 1214 (2007).
Dominion and control over the premises where controlled substances are found
does not, by itself, prove constructive possession. State v. Tadeo-Mares, 86 Wash. App.
813, 816, 939 P.2d 220 (1997). Instead, dominion and control over the premises in which
the drugs are found raises a rebuttable inference of dominion and control over the drugs.
State v. Cantabrana, 83 Wash. App. 204, 208, 921 P.2d 572 (1996). Dominion and control
of premises is one circumstance bearing on whether a defendant had constructive
possession of the drugs. State v. Shumaker, 142 Wash. App. at 334. One indicia of
constructive possession is evidence that the defendant resides at the premises. State v.
Amezola, 49 Wash. App. 78, 87, 741 P.2d 1024 (1987). Other circumstances that may be
considered in determining constructive possession include whether the defendant had the
ability to immediately take actual possession of the controlled substance, State v. Jones,
146 Wash. 2d 328, 333, 45 P.3d 1062 (2002), and whether the defendant had the capacity to
exclude others from possession of the substance. State v. Wilson, 20 Wash. App. 592, 596,
581 P.2d 592 (1978). The trial court instructed the jury in Janette Johnson's case in
accordance with the above principles. Instruction no. 10; Clerk's Papers at 30.
Janette Johnson contends the evidence failed to show that she had dominion and
control over the basement where the methamphetamine was found. She emphasizes
testimony that the residence had been overrun by drug users and that the basement room,
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State v. Johnson
where Officer Ponto found the syringe, had been used as a sleeping quarter separate from
her own main floor bedroom. She suggests the sleeping space constituted a separate
dwelling unit under the Residential Landlord Tenant Act, chapter 59.18 RCW, thus
limiting her right of entry to the basement and precluding her ability to immediately
reduce the room's contents to her possession. She further contends that the metal cart
physically blocked her access to the basement and thus she could not have taken
immediate possession of the drugs. She thus concludes that the State's mere proof that
she owned the premises is insufficient to show dominion and control over the basement
sleeping area or constructive possession of the methamphetamine, particularly when the
State lacked evidence that she knew of the presence of the drug. We reject these
arguments.
The State's evidence showed that Janette Johnson owned and solely occupied the
residence on April 9, thus raising the inference that she constructively possessed all items
inside. Although drug users previously inhabited the house, the order of abatement
demanded all tenants to vacate the premises by April 3 and Johnson held the sole right to
occupy the home thereafter. Neither party presented evidence that anyone else inhabited
or exerted any tenancy interest after April 3. The presence of the moveable metal frame
in the stairwell did not render the basement inaccessible or preclude the jury from
determining that Johnson possessed dominion and control over the basement and its
contents.
I
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Contrary to Janette Johnson's argument, the State did not need to prove that she
knew the methamphetamine lay in the basement because knowledge is not an element of
the crime of possession of a controlled substance. State v. Bradshaw, 152 Wash. 2d 528,
537-38, 98 PJd 1190 (2004). A defendant may raise an unwitting possession defense,
which requires the defendant to show, by a preponderance of the evidence, that they did
not knowingly possess the controlled substance. State v. Balzer, 91 Wash. App. 44, 67, 954
P .2d 931 ( 1998). Johnson did not pursue that defense.
Viewing the evidence in the light most favorable to the State, a rational trier of
fact could find beyond a reasonable doubt that Janette Johnson had dominion and control
over the syringe containing methamphetamine and was guilty of possession of a
controlled substance.
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:
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