Appeal from Superior Court of King County. Docket No: 95-1-01214-7. Date filed: 07/03/95. Judge signing: Hon. Carmen Otero.
PER CURIAM -- Rodney Dee Jones fled from two police officers who were investigating a stolen car. The officers gave chase and, after a struggle, arrested Jones. A jury convicted him of assault and possession of stolen property (PSP). Holding that there was sufficient evidence that Jones constructively possessed the stolen car, and that the prosecutor's misconduct did not affect the outcome of the trial, we affirm.
Responding to an informant's tip about a stolen Ford Mustang, two uniformed King County police officers arrived at a SeaTac house shortly after 11:45 p.m. Instead of a Mustang, the officers found a Datsun 280Z parked in the driveway of the house. The officers informed dispatch of the license plate number of the Datsun, and were told the car was stolen. The officers noticed that the ignition had been "punched" so that the engine could be started without a key.
While the officers were investigating the car, Jones called down to them from a second story window of the house. Jones volunteered to speak to the officers about the car, and appeared on the front porch. One officer used the radio to inquire about Jones, while the other questioned Jones about the Datsun. When the dispatcher stated over the radio that Jones had outstanding warrants, Jones jumped over the porch railing and fled. After catching and subduing Jones, the officers arrested him. The State charged him with PSP and third degree assault of a police officer. A jury convicted him on both charges. This appeal followed.
Jones argues on appeal that this court should reverse his PSP conviction because the State presented insufficient evidence that he possessed the car. We review the evidence to determine whether the record could reasonably support a finding of guilt beyond a reasonable doubt. *fn1
Either actual or constructive possession is sufficient to support a PSP conviction. *fn2 Constructive possession is proved by showing the defendant had dominion and control of the property, or dominion and control over the premises on which the property was found. *fn3 Constructive possession is established by the totality of the situation. *fn4
Jones admitted riding in the car, but denied driving it. He testified that a woman friend named Starr had driven him to the house. He admitted he initially suspected the car was stolen because of the punched out ignition, but that Starr started it with a key, thus persuading him that it was not stolen. Relying on State v. Plank, *fn5 Jones argues that merely riding in a stolen car is insufficient to establish dominion and control over it for the purpose of the PSP statute.
From the totality of the situation in this case, a jury could infer that Jones had dominion and control over the car. Unlike Plank, no other person associated with the car was present. The jury was entitled to disbelieve all the testimony about Starr, and they were entitled to believe that Jones knew the car was stolen. The car was parked next to the house where the police found Jones. He had stored personal items, including his jacket and a satchel, in the trunk. He had been riding in the car. He had the ability to move the car at any time. In addition, when he met the officers at the door, Jones was very nervous and said "Looks like somebody's got me in trouble again." A rational trier of fact could find from these facts beyond a reasonable doubt that Jones had dominion and control of the Datsun.
Jones also argues that the prosecutor committed prejudicial misconduct during closing argument. His argument is based on the following statements:
: One final thing, ladies and gentlemen. What the defendant has done through his testimony is claimed to you that Officer Adams and Officer Linde perjured themselves. I --
MR. NICOLAI: I object, your Honor. I believe that is an improper argument. I would ask that the jury make that determination.
THE COURT: You may continue.
MR. PETERSON: Thank you, your Honor. I ask you, ladies and gentlemen. Is that the case? Did these officers perjure themselves?
It is improper for a prosecutor to argue that a defendant is lying because it misleads the jury into focusing on which witness is telling the truth rather than on whether the State has proven its case beyond a reasonable doubt. *fn6 The defendant objected, and in doing so clearly stated the basis for the objection. Because the trial court overruled the objection, it would have been futile for Jones to offer a curative instruction; the objection alone preserved the issue for review. The court should have sustained the objection.
But prosecutorial misconduct requires reversal only if there is a substantial likelihood that the misconduct affected the jury. *fn7 There is no reason in this case to believe that the brief argument Jones complains of improperly diverted the jury's attention from the relevant aspects of the case pertaining to possession of stolen property. The argument was made in reference to the police testimony about the assault. Jones claims the ...