Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                        )
                                            )       No. 65865-4-I
                      Respondent,           )
                                            )       DIVISION ONE
              v.                            )          
                                            )       UNPUBLISHED OPINION
DEREK AVERY HARLIN,                         ) 
                                            )
                      Appellant.            )       FILED: January 23, 2012

       Grosse, J.  --  When the  trier of fact could find from the evidence that the 

defendant admitted that he lived in a house that was adjacent to a shed housing an

obvious extensive marijuana grow operation and further admitted that the marijuana in 

the shed was his source of income, the evidence was sufficient to establish 

constructive possession.  Accordingly, we affirm.

                                            FACTS

       In the spring of 2009, police received information about a possible marijuana 

grow operation at a property in Arlington.  Officers went to investigate further and as 

they walked past the property, they saw a makeshift vent on top of a large shed and 

smelled the odor of growing marijuana.  They then obtained a search  warrant and 

executed it on May 5, 2009.  As they approached the property to serve the warrant, 

they could see Derek Harlin in an upstairs window.  Harlin came down and opened the 
door and the officers took him into custody.  His wife Merlinda1 was also in the house 

and was taken into police custody.  

1 To avoid confusion, the other Harlin family members will be referred to by first name 
only.   

No. 65865-4-I / 2

       A search of the house yielded several firearms, including one on the kitchen 

counter, one in the master bedroom, and  two  in another bedroom that contained 

identification belonging to Harlin's son, Cody.  No drugs were found in the house.  

Police also obtained a key to the large shed adjacent to the house.  Before entering the 

shed, the officers could smell the odor of marijuana coming from the building.  

       Once inside the shed, officers saw what appeared to be a 2- to 3-foot marijuana 

plant lying on the floor.  They also found what appeared to be marijuana in coolers in 

two locations on the ground floor and a triple beam balance scale on a shelf.  They also 

saw an upstairs loft area and climbed up a ladder to it, opened a door and announced 

their presence. They came back down, looked through the door using a camera on a 

pole and saw Cody.  Cody was then taken into police custody.  

       Police then entered the loft area, which was divided into three rooms set up as a 

marijuana growing operation.  In addition to several plants, they observed a watering 

system, timer, clippers, temperature gauge, rooting hormone, wiring control box, 

switches for 1000-watt bulbs, and ducts to vent both the heat and smell.  Officers 

seized 289 plants, a sample leaf of which tested positive for marijuana.  

       While the search progressed, officers told Harlin that they were looking for 

marijuana.  He responded that he did not see what "the big deal" was since "Obama 

was going to legalize" whatever they might find in the shed.  In the next few days, 

Harlin called the lead detective on the case several times, reiterating that he thought it 

was no "big deal," asking for the return of some of his paperwork and guns that were 

taken from his house, and complaining that he would now have to reconsider his child 

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No. 65865-4-I / 3

support payments because the police had taken away his source of income.  

       The State charged Harlin, Merlinda, and Cody with one count of conspiracy to 

commit manufacture of a controlled substance.  The State dismissed the charge 

against Merlinda pretrial, and filed an amended information charging Harlin with one 

count of possession of over 40 grams of marijuana while armed with a firearm.               The 

conspiracy charge against Cody remained and was joined with Harlin's possession 

charge for trial.  

       After the State rested, both Harlin and Cody moved to dismiss for insufficiency of 

the evidence.  The trial court granted Cody's motion and dismissed the charge against 

him, concluding that Harlin's statements to police were inadmissible as a co-

conspirator's statements because the conspiracy ceased once the police arrived on the 

scene.  In Harlin's case, the court found there was sufficient evidence to go to the jury 

on constructive possession, but dismissed the firearm allegation, finding that there was 

insufficient nexus tying the firearms to the crime.  

       Harlin then decided to waive his  right to a jury trial on the              constructive 

possession charge and chose not to put on any evidence.  The court found the charge 

proved beyond a reasonable doubt and entered a guilty finding on the possession 

charge.  The court sentenced Harlin to 45 days in the county jail. He appeals.

                                          ANALYSIS

        Harlin challenges the sufficiency of the evidence, contending that the State 

failed to prove he constructively possessed the marijuana because there was 

insufficient evidence to establish that he had dominion and control over it.  We 

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disagree.

       To evaluate a challenge to the sufficiency of the evidence, we view the evidence 

in the light most favorable to the State and determine whether any rational trier of fact 

could have found the essential elements of the charged              crime proved beyond a 
reasonable doubt.2  A challenge to the sufficiency of the evidence admits the truth of 

the State's evidence and all reasonable inferences must be drawn in favor of the State 
and interpreted against the defendant.3        We defer to the trier of fact to weigh the 

evidence, resolve conflicts in testimony,             and evaluate witness credibility.4  

Circumstantial evidence is no less reliable than direct evidence and is sufficient to 
prove any element of the crime.5

       To prove the crime of possession of more than 40 grams of marijuana, the State 

must  establish  that the defendant possessed that amount                either  by  actual or 
constructive possession.6  Actual possession of contraband means that the goods are 

in the personal custody of the person charged with possession; whereas, constructive 

possession means that the person charged with possession has dominion and control 
over the goods.7   Constructive possession is established by proof that the person 

charged with possession had dominion and control of either the drugs or the premises 
upon which the drugs were found.8

2 State v. Wentz, 149 Wn.2d 342, 347, 68 P.2d 282 (2003).
3 State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).  
4 State v. Stewart, 141 Wn. App. 791, 795, 174 P.3d 111 (2007).
5 State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).
6 RCW 69.50.4013; State v. Callahan, 77 Wn.2d 27, 29, 459 P.2d 400 (1969); see also
11 Washington Practice: Washington Pattern Jury Instructions: Criminal 50.03, at 949 
(3d ed. 2008).
7 Callahan, 77 Wn.2d at 29.
8 Callahan, 77 Wn.2d at 31.
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       To determine whether there is constructive possession, courts examine the 

"totality of the situation"   to ascertain   if substantial evidence exists that tends        to 

establish circumstances from which the trier of fact can reasonably infer the defendant 
had dominion and control over the contraband.9            Constructive possession may be 

proved by circumstantial evidence.10      Proof of the defendant's exclusive control is not 

necessary to establish constructive possession, but the defendant's mere proximity to 
the contraband is insufficient.11  

       Here, viewing the evidence in the light most favorable to the State and drawing 

all reasonable inferences therefrom, the State produced sufficient evidence from which 

a rational trier of fact could find that Harlin was in constructive possession of the 

premises on which the marijuana was found.  Harlin was present in the house at the 

time of the seizure, a picture of him and his wife was in the master bedroom of the 

house, and his son Cody had a separate bedroom in the house.  The shed was 

adjacent to the house and the keys to the shed were not obtained from Cody, who was 

inside the shed when police unlocked it.  The shed housed an obvious extensive grow 

operation, had a makeshift vent on top that was visible from the outside and emanated 

a marijuana odor that was detectable from outside the shed.  

       More importantly, there was evidence of Harlin's admission that this was his 

house.  The detective testified that Harlin asked police to return his paperwork and 

guns seized from the house and stated that the guns were seized from his house.  

9 State v. Partin, 88 Wn.2d 889, 906, 567 P.2d 1136 (1977) (emphasis omitted).
10 State v. Sanders, 7 Wn. App. 891, 893, 503 P.2d 467 (1972).
11 State v. Davis, 117 Wn. App. 702, 708-09, 72 P.3d 1134 (2003), review denied, 151 
Wn.2d 1007 (2004).
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No. 65865-4-I / 6

Harlin contends that this was not his verbatim statement, but a summary of his 

statement to the detective and was therefore insufficient evidence of an admission.  But 

we defer to the trier of fact to determine the weight of this statement, which is sufficient 

to support a finding that Harlin admitted that this was his house.  The detective also 

testified that Harlin complained that the detective "took away his source of income."  

The reasonable inference to be drawn from this statement is that he was referring to 

the seized marijuana plants as his source of income, which establishes his possessory 

interest in the marijuana.  Finally, Harlin made statements to the detective that "he 

didn't think this was a big deal at all because Obama was going to legalize what was 

found in the shop anyway."        Again, a reasonable inference to be drawn from this 

statement is that Harlin admitted to housing an illegal operation in the shed.  Thus, 

applying  "the totality of circumstances"       standard, all of this evidence and the 

reasonable inferences drawn therefrom provide sufficient evidence to support a finding 

of guilt.  

       We affirm the judgment and sentence.

WE CONCUR:

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