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

• Court: Court of Appeals of Washington
• Decided: March 7, 2016
• Docket: 73027-4
• Status: Unpublished

Opinion

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UNPUBLISHED OPINION VINCENT WILLIAM BARBEE,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, No. 73027-4-1/2

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 No. 73027-4-1/3

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

5- 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

8 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

11 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: "Tyf-

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