State v. A.T.P.-R.

Schultheis, J. ¶ 1 —A police officer investigating whether A.P.-R. was too young to possess cigarettes — a civil infraction — noticed the odor of alcohol coming from Mr. P.-R.’s body. Eventually Mr. P.-R. was arrested and charged with being a minor in possession of alcohol. His motion to suppress evidence obtained when the officer questioned him was denied. He now appeals his disposition, contending he was unconstitutionally seized during the investigation of a civil infraction. He also contends the evidence was insufficient to support his guilt. Because we find insufficient evidence to support Mr. P.-R.’s disposition, we reverse and dismiss with prejudice. Accordingly, we decline to address the suppression issue. Facts ¶ 2 One afternoon in May 2004, police officer Gregory Cobb saw a group of boys playing basketball in a Union Gap park. Two boys were standing together away from the others. One of the two was holding a bloodstained cloth to his face, while the other was smoking a cigarette and did not look old enough to possess tobacco products. Officer Cobb parked his patrol car and went over to talk to the two boys. 184 ¶ 3 Mr. P.-R., who was holding the cigarette, told Officer Cobb his name and that he was 17 years old. His 15-year-old friend, J.G., was holding a cloth to his nose, bloodied during the basketball game. Mr. G. was attempting to hide something from the officer. When Officer Cobb asked to see what was in his hand, Mr. G. showed him an open 40-ounce bottle of beer. Officer Cobb told both boys to sit on the ground. He called for backup when Mr. G. refused to cooperate, then placed Mr. G. in handcuffs and put him in the back of his patrol car. After securing Mr. G., Officer Cobb went back to Mr. P.-R., asked him to stand up, and began questioning him regarding his address and guardian. The officer smelled alcohol emanating from Mr. P.-R.’s body. ¶ 4 Mr. P.-R. was charged with being a minor in possession of alcohol, RCW 66.44.270(2)(a). Pretrial, he unsuccessfully moved to suppress the evidence as the fruits of an unlawful seizure. CrR 3.6. Finding that the odor of alcohol emanating from Mr. P.-R.’s body, coupled with his close proximity to a person who possessed alcohol, circumstantially proved that Mr. P.-R. possessed or consumed alcohol, the juvenile court found him guilty. This appeal followed. Sufficiency of the Evidence ¶ 5 Mr. P.-R. challenges the sufficiency of the evidence to support his disposition. He contends the odor of alcohol and his close proximity to Mr. G. — who held an open bottle of beer — were insufficient to prove beyond a reasonable doubt that he possessed or consumed alcohol. ¶ 6 In determining the sufficiency of the evidence in a juvenile or adult criminal proceeding, we view the evidence in the light most favorable to the State and ask whether any rational trier of fact could find guilt beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992); State v. E.J.Y., 113 Wn. App. 940, 952, 55 P.3d 673 (2002). We consider circumstantial evidence as reliable as direct evidence and defer to the trier of fact on issues of credibility, conflicting evidence, and the persua 185 siveness of the evidence. State v. Myers, 133 Wn.2d 26, 38, 941 P.2d 1102 (1997); E.J.Y., 113 Wn. App. at 952. Because Mr. P.-R. does not challenge the findings of fact, they are verities on appeal. State v. Gentry, 125 Wn.2d 570, 605, 888 P.2d 1105 (1995). Accordingly, we limit our review to whether the findings support the elements of the charge beyond a reasonable doubt. State v. Alvarez, 105 Wn. App. 215, 220, 19 P.3d 485 (2001). ¶ 7 Pursuant to RCW 66.44.270(2)(a), “[i]t is unlawful for any person under the age of twenty-one years to possess, consume, or otherwise acquire any liquor.” Possession is not defined by the statute, but case law has established that a person possesses alcohol “if he or she knows of the substance’s presence, it is immediately accessible, and he or she exercises dominion or control over it.” State v. Dalton, 72 Wn. App. 674, 676, 865 P.2d 575 (1994) (citing State v. Hornaday, 105 Wn.2d 120, 125, 713 P.2d 71 (1986)). If possession is not actual, it may be constructive, and constructive possession may be joint. Hornaday, 105 Wn.2d at 125; State v. Harris, 14 Wn. App. 414, 417, 542 P.2d 122 (1975). ¶ 8 Mr. P.-R. did not have actual possession of alcohol, but he stood near Mr. G., who held an open bottle of beer. Additionally, the officer detected the odor of alcohol on Mr. P.-R.’s body. A defendant’s close proximity to an object is insufficient alone to establish constructive possession. State v. Turner, 103 Wn. App. 515, 521, 13 P.3d 234 (2000). Some other indicia of dominion and control must exist, such as the defendant’s ability to actually possess the object. State v. Echeverria, 85 Wn. App. 777, 783, 934 P.2d 1214 (1997). Even the presence of liquor in the suspect’s system is not enough on its own to support conviction. Dalton, 72 Wn. App. at 676. When combined with other corroborating evidence, however, assimilation of alcohol can be sufficient to prove possession. Id. ¶ 9 In this case, the State provided no evidence that there was alcohol in Mr. P.-R.’s system. Officer Cobb testified that he smelled a “medium” odor of alcohol coming from 186 Mr. P.-R.’s body, but he did not state that Mr. P.-R. appeared intoxicated or showed any effects of alcohol consumption. Clerk’s Papers at 4. Ultimately, the only evidence to support constructive possession of alcohol was Mr. P.-R.’s proximity to a person holding a beer. Not only is mere proximity insufficient to prove constructive possession, but in this case Mr. P.-R. did not have immediate access to the alcohol. See Dalton, 72 Wn. App. at 676. The beer was in Mr. G.’s possession, to the exclusion of Mr. P.-R.’s dominion and control. ¶ 10 Even after considering the record in the light most favorable to the State, we find insufficient evidence to support Mr. P.-R.’s disposition on the basis of constructive possession or consumption or alcohol. Accordingly, we reverse and dismiss, with prejudice. Thompson, J. Pro Tem., concurs.