State v. Hults

513 P.2d 89, 9 Wash. App. 297, 1973 Wash. App. LEXIS 1195
CourtCourt of Appeals of Washington
DecidedJuly 13, 1973
Docket504-2
StatusPublished
Cited by12 cases

This text of 513 P.2d 89 (State v. Hults) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Hults, 513 P.2d 89, 9 Wash. App. 297, 1973 Wash. App. LEXIS 1195 (Wash. Ct. App. 1973).

Opinions

Petrie, J.

— Defendant, Richard Hults, was charged by information with unlawful possession of a dangerous drug, marijuana, with intent to sell. The information was dismissed at the conclusion of the state’s evidence for failure to present a prima facie case and the state appeals. The posture of the case requires that we view the evidence and all reasonable inferences derived therefrom in the light most favorable to the state.

On Thursday, June 25, 1970, four officers attached to the Tacoma police narcotics detail began periodic surveillance of a 2-story residence on Northeast 65th Street. The house was situated in a secluded spot, set back some 300 yards from the road. Between Thursday and Sunday, the defendant was seen coming and going from the house on several occasions. On Sunday, June 28, 1970, the officers obtained a search warrant and returned to the vicinity of the residence. Before approaching the house, the four officers observed the defendant, accompanied by another person, drive up to the house in an older model Cadillac. Two of the officers went to the back door of the house and were admitted by one Carlton Gunther. The other two officers went to the front of the house. Defendant, another man and a woman were on a sun deck, outside the house. All parties proceeded into the house, the warrant was read to the assembled group and the officers began their search of the premises.

The search of the house resulted in the discovery of a large quantity of suspected marijuana. The substance discovered was individually packaged in separate 2.2 pound quantities, and each “kilo” was similarly wrapped in foil. An open cardboard box was found in a bedroom on the first floor. This box contained 33 kilos. Exhibit No. 1. Among some camping gear in the basement, a duffel bag was found with 7 kilos. Exhibit No. 4. A single, opened kilo was discovered in a dresser drawer in an upstairs bedroom. In the [299]*299headboard of the bed in the same bedroom a handbook on marijuana was also found. In addition, two live potted plants resembling marijuana were seized from the sun deck. Defendant was found to have $1,600 in cash on his person. The officers testified that sales of marijuana were cash transactions almost without exception, and that a kilo of marijuana was worth between $140 and $200.

The search further revealed defendant’s Corvette automobile and defendant’s motorcycle parked in the basement garage. The basement of the house had been set up for band rehearsal and a number of instruments were discovered. Moreover, defendant was known to be a musician; a guitar and case, which he admitted owning, were found somewhere in the house.

Correspondence addressed to various individuals at the 65th Street house was also discovered. Detective White found “some papers with Rick Hults’ name on them in the dining room area.” Three pieces were introduced in evidence by the state: (1) a bank statement, postmarked May 7, 1970, addressed to defendant; (2) a bill for repairs to a Corvette, postmarked June 1, 1970, addressed to defendant; and (3) a garbage bill for the house, covering the months of April, May and June, 1970, postmarked June 2, 1970, addressed to Doug Taylor. Detective Six found some two hundred to three hundred pieces of paper in one of the two dressers of the upstairs bedroom in which the marijuana was found. He testified that he saw Mr. Hults’ name on approximately 40 of the “letters, bills, so forth.” He saw no other name on the other bits of correspondence.

Subsequent to the search of the house, the individual kilos found in the duffel bag and cardboard box were checked for fingerprints. Seven latent prints were found, of which three were identifiable. The state offered to show that the identifiable prints belonged to defendant and were recovered from two, possibly three, different kilos. The fingerprint expert, however, had not kept record of precisely where the prints came from and could only testify that they were lifted either from kilos in the duffel bag (exhibit [300]*3004) or the cardboard box (exhibit 11 or both. The kilo found in the upstairs bedroom was excluded as a source of the prints. The trial court refused the state’s offer of proof.

After the police fingerprinted the kilos, they were taken to the drug analysis unit, where random samples from the cardboard box and from the kilo found in the upstairs bedroom were analyzed and found to be marijuana. Moreover, during the trial, two randomly selected samples from the duffel bag were examined and found to contain marijuana. The trial court admitted only those kilos from which samples had been analyzed. All other kilos were rejected. None of the state’s witnesses could testify that any kilo admitted into evidence was one from which a latent identifiable fingerprint had been lifted.

The state first assigns error to the trial court’s granting of defendant’s motion to dismiss at the close of the prosecution’s case. It contends that sufficient evidence of possession of marijuana was introduced to warrant submission of that issue to the jury. The state concedes that defendant did not have marijuana on his person at the time of his arrest. No serious issue of actual possession is presented by this appeal. The defendant’s access and proximity to the cache of marijuana and his fingerprints on two or three of the kilos is totally insufficient to establish actual possession. State v. Callahan, 77 Wn.2d 27, 459 P.2d 400 (1969). We turn, therefore, to consideration of whether or not the state has presented sufficient evidence from which a jury could infer the defendant was constructively in possession of marijuana.

In order to establish that defendant had constructive possession of the drugs it is essential to prove that he exercised dominion and control over the premises at the time of the search. State v. Callahan, supra. The state’s evidence that the defendant was in constructive possession •of the marijuana was entirely circumstantial. There was no direct testimony that defendant resided in the house. The scope of our review is limited, therefore, “to a determination of whether the state has produced substantial evidence [301]*301tending to establish circumstances from which the jury could reasonably infer the fact to be proved.” State v. Dugger, 75 Wn.2d 689, 690, 453 P.2d 655 (1969). If that quantum of evidence exists then there is some proof of this element and its weight becomes a question for the jury. State v. Randecker, 79 Wn.2d 512, 487 P.2d 1295 (1971).

The officers testified that they observed the defendant coming and going from the residence on the 3 days prior to the search. No personal clothing or toilet articles identifiable as belonging to the defendant were found inside the house, but such items are not readily amenable to individual identity. However, the officers did find his car, motorcycle, and musical instrument on the premises. On the day of the search, he drove to the premises in a third motor vehicle. In addition, many items of personal correspondence belonging to defendant were found in a chest of drawers in an upstairs bedroom. A search of the same chest of drawers also produced a kilo1 of marijuana.

Two items of correspondence found in the dining area, addressed to defendant, were introduced into evidence.

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State v. Hults
513 P.2d 89 (Court of Appeals of Washington, 1973)

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Bluebook (online)
513 P.2d 89, 9 Wash. App. 297, 1973 Wash. App. LEXIS 1195, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hults-washctapp-1973.