Find Legal Information

Court of Appeals Division III
State of Washington

Opinion Information Sheet

			

                                                                               FILED
                                                                          APRIL 17, 2012
                                                                    In the Office of the Clerk of Court
                                                                  WA State Court of Appeals, Division III

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                                      No.  30490-6-III
                                                )
                      Respondent and            )
                      Cross-Appellant,          )         Division Three 
                                                )
         v.                                     )
                                                )         UNPUBLISHED OPINION
ALONZO LAMAR BRADLEY, SR.,                      )
                                                )
                      Appellant.                )
                                                )

       Korsmo, C.J.  --  Alonzo Bradley challenges the sufficiency of the evidence to 

support the jury's verdicts finding him guilty of harassment and possession of a 

controlled substance.  We affirm.

                                            FACTS

       This case had its genesis in a stop of a bicyclist for traffic infractions.  Fife Police 

Officer Robert Eugley was patrolling the city at 10:45 p.m. on October 18, 2009.  He saw 

Mr. Bradley ride by on a bicycle that did not have a head lamp or reflectors.  Mr. Bradley 

then crossed the street against a red light.  The officer attempted to stop and contact him.

       Mr. Bradley did not respond to a public address system announcement to pull  

No. 30490-6-III
State v. Bradley

over.  He looked at the officer and continued riding.  The officer turned on his overhead 

lights and again directed him to stop.  Mr. Bradley continued riding and the officer kept 

ordering him to stop.  Eventually, Mr. Bradley put his left hand into his pocket.  Fearing 

he may have a weapon, the officer dropped back and called for assistance.  

       When a siren announced the arrival of another officer, Mr. Bradley stopped and 

got off his bike, which he placed on the ground.  His left hand remained clenched.  A 

verbal confrontation ensued; the officer drew his stun gun and threatened to use it.  

Eventually, Mr. Bradley got on the ground behind his bike and thrust his still-clenched 

left hand into some bushes.  He pulled the hand out of the bushes and opened it.  

       With the assistance of the backup officer, Officer Eugley arrested Mr. Bradley and 

placed him in the patrol car.  The officer then went back to the bushes and found a plastic 

bag of crack cocaine in the location where Mr. Bradley had placed his hand.  Mr. Bradley 

saw the retrieval and called out, "that is your cocaine.  I saw you. You can't put that on 

me." Report of Proceedings (RP) at 236.

       During the ensuing drive to the Pierce County Jail, Mr. Bradley kept yelling at the 

officer from the back seat of the patrol car.  Using various epithets, he also told the 

officer he would "get a 12-gauge shotgun shoved in [his] mouth and [his] head is going to 

be blown off."  RP at 241.  The threats caused the officer concern since he was aware 

that his name was visible on his uniform.  Due to Mr. Bradley's agitated state, Officer 

                                               2 

No. 30490-6-III
State v. Bradley

Eugley called ahead to have corrections officers help remove Mr. Bradley from the patrol 

car.  The officer consulted with a superior about the incident due to his concern about the 

threats.

       Charges of felony harassment, possession of a controlled substance, and 

obstructing a public servant were filed.  The case proceeded to jury trial before the Pierce 

County Superior Court.  During jury selection, the trial court ruled that Officer Eugley 

could not testify that he had been told that Mr. Bradley was a "violent offender." The 

jury returned guilty verdicts on all three counts, and also found as an aggravating factor 

that the defendant knew the victim was a law enforcement officer performing his duties at 

the time of the crime.  

       The trial court imposed an exceptional sentence of 72 months by requiring the two 

felony sentences to be served consecutively.  Mr. Bradley timely appealed.  The State 

then cross-appealed the exclusion of the testimony that Mr. Bradley was a known "violent 

offender."

                                         ANALYSIS

       Mr. Bradley's appeal challenges the sufficiency of the evidence to support the 

convictions on the felony counts of harassment and possession of a controlled substance.  

Applying well-settled standards of review, we conclude that the evidence supported each 
verdict.  We decline to address the State's cross-appeal due to mootness.1

                                               3 

No. 30490-6-III
State v. Bradley

       Evidence is sufficient to support a conviction if the trier of fact has a factual basis 

for finding each element of the offense proven beyond a reasonable doubt.  Jackson v. 

Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); State v. Green, 94 

Wn.2d 216, 221-22, 616 P.2d 628 (1980).  The evidence is viewed in the light most 

favorable to the prosecution.  Green, 94 Wn.2d at 221. Appellate courts defer to the trier 

of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness 

of the evidence.  State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). 

       Possession of a Controlled Substance. A person is guilty of possession 

of a controlled substance when he or she possesses a controlled substance.  

RCW 69.50.4013(1).  This means the State is required to prove the nature of the 

controlled substance and the fact of possession.  State v. Staley, 123 Wn.2d 794, 798, 872 

P.2d 502 (1994).  Possession, in turn, is either actual or constructive.  State v. Hathaway,

161 Wn. App. 634, 646, 251 P.3d 253, review denied, 172 Wn.2d 1021 (2011).  Actual 

possession occurs where the defendant has physical custody of the substance; 

       1 The State strenuously argues the mootness question, contending that the trial 
courts would benefit from guidance on the question presented.  An appeal is moot where 
the court cannot grant effective relief.  In re Det. of LaBelle, 107 Wn.2d 196, 200, 728 
P.2d 138 (1986).  Nonetheless, an appellate court will consider a moot case when it is in 
the public interest to do so.  Id. Factors to be considered include whether or not the 
matter is of a private or public nature, the need for guidance to public officials, and 
whether the problem is likely to recur.  In re Cross, 99 Wn.2d 373, 377, 662 P.2d 828 
(1983).  We do not think that this case is the best vehicle for deciding this issue.  

                                               4 

No. 30490-6-III
State v. Bradley

constructive possession occurs where the defendant exercises dominion and control.  Id.  

Dominion and control are determined by examining the totality of the circumstances. 

State v. Collins, 76 Wn. App. 496, 501, 886 P.2d 243 (1995). Mere proximity alone is 

insufficient to establish constructive possession.  State v. Echeverria, 85 Wn. App. 777, 

784, 934 P.2d 1214 (1997).  

       Mr. Bradley does not dispute that the substance involved was cocaine, a controlled 

substance.  He does dispute whether he possessed the cocaine.  He argues that he was 

only in mere proximity to the cocaine and did not exercise dominion and control over it.  

We disagree for two reasons.

       First, the evidence was sufficient to support conviction on a theory of actual 

possession.  He withdrew a closed fist from his pocket and placed that fist in the location 

where the cocaine was found.  He also knew what the substance was long before it was 

tested.  The trier of fact was entitled to determine that Mr. Bradley actually possessed the 

cocaine throughout the encounter up to the point where he placed it in the bushes.

       Second, even if this is treated as a constructive possession case, the evidence was 

still sufficient.  Evidence was presented to the jury putting Mr. Bradley at the location 

where the cocaine was found.  In addition to proximity, his hand was seen in the very 

spot in the bushes where the drugs were found, a fact that showed his control over the 

cocaine.  His statement also indicated his knowledge of the identity of the substance.  The 

                                               5 

No. 30490-6-III
State v. Bradley

jury could conclude that Mr. Bradley exercised dominion and control over the cocaine by 

placing it in the bushes.  On these facts, the evidence is very similar to State v. Nyegaard,

154 Wn. App. 641, 647-48, 226 P.3d 783 (2010), superseded on recons., 164 Wn. App. 

625, 267 P.3d 382 (2011) (holding movement of hands and dropping of pipe in location 

where controlled substance recovered was sufficient to demonstrate constructive 

possession when taken in conjunction with proximity).

       The evidence permitted the jury to find either actual or constructive possession of 

the cocaine.  It was sufficient.

       Harassment. As charged here, felony harassment requires proof that the 

offender without lawful authority threatened to kill another and by words or conduct 

placed the person threatened in reasonable fear that the threat would be carried out.  

RCW 9A.46.020(1)(a)(i); (2)(b)(ii).  In order to punish speech under the First 

Amendment to the United States Constitution, there must be a "true threat" involved.  

Consistent with the statute, a "true threat" is one that a reasonable person would 

understand to be "'a serious expression of an intention to . . . take the life'" of the victim.  

State v. Johnston, 156 Wn.2d 355, 360-61, 127 P.3d 707 (2006) (quoting United States v.

Khorrami, 895 F.2d 1186, 1192 (7th Cir. 1990)).  

       Mr. Bradley contends that his conduct did not constitute a "true threat." He relies 

primarily on State v. C.G., 150 Wn.2d 604, 80 P.3d 594 (2003).  There a high school 

                                               6 

No. 30490-6-III
State v. Bradley

student, C.G., became disruptive and had to be removed from the classroom by the 

school's vice-principal, Tim Haney.  Id. at 606.  As she was being removed, she twice 

told Mr. Haney that she would kill him.  Id. at 607.  He testified that he believed she 

might try to harm him or someone else in the future.  C.G. was found guilty of 

harassment for threatening Mr. Haney.  Id. The Supreme Court reversed, holding the 

evidence insufficient because Mr. Haney testified that he was concerned, not that C.G. 

would kill him as she said, but that she would cause harm to him or someone else.  Id. at 

609-10.  The court reasoned that the threatened individual must be placed in reasonable 

fear of the actual threat expressed.  Id. at 610.  Mr. Bradley argues that here, as in C.G., 

there was no evidence that Officer Eugley was actually placed in reasonable fear that he 

would be killed.  

       C.G. is easily distinguishable.  The holding in C.G. turned upon the fact that the 

target of the threat did not fear that he would be killed, resulting in the conclusion that the 

evidence was insufficient.  Id. at 609-10.  Here, Officer Eugley testified that he was 

concerned that the death threat would be carried out at some point in the future and even 

discussed the incident with his supervisor.  Viewing this evidence in the light most 

favorable to the State, the evidence allowed the jury to conclude that Officer Eugley was 

reasonably afraid that Mr. Bradley would try to kill him in the future.

       As with the possession count, the evidence was sufficient to support the 

                                               7 

No. 30490-6-III
State v. Bradley

harassment conviction.  The convictions are affirmed.2

       A majority of the panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to 

RCW 2.06.040.

                                                    _________________________________
                                                    Korsmo, C.J.

WE CONCUR:

______________________________                 _________________________________
Sweeney, J.                                    Siddoway, J.

       2 Mr. Bradley also filed a lengthy statement of additional grounds (SAG).  His 
arguments are difficult to discern.  He does challenge the credibility of the State's 
evidence, an issue that we do not reconsider on review.  Camarillo, 115 Wn.2d at 71.  
His remaining issues, to the extent they can be identified, either have no support in the 
record or insufficient argument to be addressed.  RAP 10.10(c).  

                                               8