Opinion
No. 52146-2-I.
Filed: June 14, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 02-1-10362-2. Judgment or order under review. Date filed: 04/04/2003. Judge signing: Hon. Gain Brian D.
Counsel for Appellant(s), Eric Broman, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Roderick T McCarvel, Attorney at Law, 157 Yesler Way Ste 514, Seattle, WA 98104-2588.
Counsel for Respondent(s), E Bradford Bales, King Co Pros Aty Ofc, 516 3rd Ave, Seattle, WA 98104-2390.
Prosecuting Atty King County, King County Prosecutor/appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
Circumstantial evidence of appellant Graham Payne's dominion and control over a stolen credit card found in the console of a car was sufficient to support his conviction for possession of stolen property. The restitution order for his forgery conviction must be reversed because it was not based on the forgery for which he was charged and convicted.
Someone stole Donna Emerson's purse from a gas station on May 3, 2003, while she was inside paying the attendant. In her purse at the time were her checkbook and credit cards. She immediately put stop payment orders on the stolen checks.
A teller at the Washington Mutual Bank branch in Des Moines mistakenly cashed one of the stolen checks that had the stop payment on it. That check, made out to Graham Payne, was for $735. Branch Manager Alex Dorn talked to Emerson about it. Dorn testified that the next day Graham Payne came into the bank and attempted to cash one of Emerson's stolen checks. This check, also made out to Payne, was for $400. Payne told Dorn that the check was from his grandmother. Dorn was suspicious that Payne might be the same person who cashed the $735 check the day before, as the $400 check looked almost identical. Dorn told Payne that he would have to verify the signature and asked him to take a seat in the lobby. Dorn then called 911. Dorn remained on the line with police dispatch and described Payne's movements. After a few minutes, he saw Payne leave the branch, re-enter, and then leave again. Payne then walked across the parking lot and got into a gold four door car. At that point, police pulled up to the car and arrested Payne.
Police contacted the owner of the car, Devette Finney, and asked her to come and pick up her car. Finney testified that after she picked up her car she found a stack of credit cards and checks and immediately delivered these items to the police station.
A jury convicted Payne on a charge of forgery for the $400 check he was attempting to cash on May 4, and on another charge of possession of stolen property — a credit card in the name of Donna Emerson that was among the stack of credit cards turned in by Finney. The trial court ordered Payne to pay Washington Mutual Bank $735 in restitution, the amount lost on the forged check made out to Payne that was cashed on May 3. Payne appeals.
RESTITUTION
Payne contends the restitution order should be vacated because it is not causally related to the offense for which he was charged and convicted. The State properly concedes error.
A restitution award must be based on a causal relationship between the offense charged and proved and the victim's losses or damages. State v. Johnson, 69 Wn. App. 189, 191, 847 P.2d 960 (1993). In evaluating the causal link, this court uses a "but for" factual test. State v. Landrum, 66 Wn. App. 791, 799, 832 P.2d 1359 (1992). The factual test is not satisfied in this case. Payne's conviction for forgery was based on his attempt to cash the $400 check on May 4. Yet the court ordered restitution for the $735 check cashed the day before. Although the State presented evidence that Payne successfully cashed this check, Payne was neither charged nor convicted for the forgery of the check for $735. The order of restitution for this amount must be stricken.
CONSTRUCTIVE POSSESSION
Payne also challenges the sufficiency of the evidence for his conviction of second degree possession of stolen property — in this case a stolen credit card. A challenge to the sufficiency of the evidence to support a conviction requires that the evidence and all reasonable inferences be viewed in a light most favorable to the State. State v. Green, 94 Wn.2d 216, 616 P.2d 628 (1980). There is sufficient evidence to support the conviction if a rational trier of fact could find each element of the crime proven beyond a reasonable doubt. State v. Mewes, 84 Wn. App. 620, 622, 929 P.2d 505 (1997). It is the province of the trier of fact to resolve conflicting testimony, evaluate the credibility of witnesses, and weigh the persuasiveness of the evidence, not the court. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992).
To convict, the State had to prove that Payne had possession of the credit card with the knowledge that it was stolen. RCW 9A.56.140, 9A.56.160, State v. Plank, 46 Wn. App. 728, 731, 731 P.2d 1170 (1987). Possession may be actual or constructive. The State could not prove actual possession because the card was not found in the personal custody of Payne. The State did, however, present proof that Payne constructively possessed the card. Constructive possession is where the person charged has dominion and control over the item in question or over the location where the item is found. State v. Bradford, 60 Wn. App. 857, 862-3, 808 P.2d 174 (1991). Whether an individual has dominion and control is determined by the totality of the situation. Exclusive control is not a prerequisite to establishing constructive possession. Bradford, 60 Wn. App. at 862. No single factor is dispositive in determining dominion and control. The totality of the circumstances must be considered. State v. Turner, 103 Wn. App. 515, 521, 13 P.3d 234 (2000). The ability to reduce an object to actual possession is an aspect of dominion and control. Mere proximity to stolen property is not enough to establish dominion and control, but constructive possession may be shown by proximity along with other circumstances linking the defendant to the stolen property. See State v. Sanders, 7 Wn. App. 891, 893, 503 P.2d 467 (1972).
Payne argues that the only evidence tying him to the crime was the proximity of the card to other items stolen from Emerson's purse. The evidence about Payne's proximity to the cards in the car was conflicting. Branch manager Dorn's statement to police was that Payne got into the front passenger seat of the car after he left the bank. But at trial he could not recall if Payne got into the front or rear seat of the car. The arresting officer testified that Payne was in the rear of the car. Finney testified that she found the checks and credit cards in the middle console between the driver and front passenger. But the police report states that Finney told police she found the items in the driver side door pocket.
Payne contends Finney found the credit cards in a location in her car that was inaccessible to him, and therefore he could not have had dominion or control.
The day prior to Payne's attempt to cash Emerson's stolen check, another of her stolen checks, also made out to Payne, was cashed in error at the bank. The branch manager testified that the two checks, Payne's forged check and the stolen check already cashed, were "virtually identical". When Payne left the bank, after being asked to wait in the lobby, he got into the car where the credit card was eventually found, and attempted to leave. Whether the stolen credit card was found in the center console or the front door pocket, it was in a location that Payne had access to even as a rear passenger. And it was found along with a stolen check of Emerson's which, like the other two checks, was made payable to Payne. These circumstances were sufficient to establish Payne's dominion and control over the stolen credit card.
Report of Proceedings (March 25, 2003) at 8.
The conviction is affirmed. The order of restitution is vacated.
COLEMAN and APPELWICK, JJ.