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Court of Appeals Division III
State of Washington

Opinion Information Sheet

			

                                                                    FILED

                                                                APR 19, 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.  29963-5-III
                                                )
                             Respondent,        )
                                                )         Division Three 
         v.                                     )
                                                )
S.L.B.,                                         )
                                                )         UNPUBLISHED OPINION
                             Appellant.         )
                                                )

       Korsmo, C.J.  --  S.L.B. challenges the sufficiency of the evidence to support her 

conviction for minor in possession of alcohol.  We believe the evidence allowed the trier

of fact to conclude that she possessed alcohol.  The conviction is affirmed.

                                            FACTS

       This appeal arises from a teenage party in Moses Lake on August 9, 2010.  An 

officer dispatched to a disturbance call late that evening observed male and female 

juveniles holding beer cans.  He was denied entry to the house where the party was being 

held.  He obtained a search warrant and entered the residence with three other officers.

       The officers found beer cans and several teenagers.  They began interviewing  

No. 29963-5-III
State v. S.L.B.

them.  An officer testified that S.L.B., who was born February 22, 1995, had alcohol on 

her breath.  She also exhibited bloodshot and watery eyes.  In his opinion, she had 

consumed alcohol.  S.L.B. denied having consumed any alcohol.

       S.L.B. was charged in juvenile court with minor in possession of alcohol.  The

trial judge concluded that she was guilty of the charge.  Her sentence of community 

service was stayed pending appeal to this court.  The findings required by JuCR 7.11(d) 
have not been entered.1

                                         ANALYSIS

       The sole issue presented is whether S.L.B. "possessed" alcohol.  Although 

precedent makes this a close call, we believe the evidence supports the trial judge's 

determination.

       Well-settled rules govern review of a challenge to the sufficiency of the evidence.  

The reviewing court does not weigh evidence or sift through competing testimony.  

Instead, the question presented is whether there is sufficient evidence to support the 

determination that each element of the crime was 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. 

       1 The record does not reveal why the findings have not yet been entered.  An 
appellate court can review a case in the absence of findings if the record is sufficient for 
review.  State v. Otis, 151 Wn. App. 572, 577, 213 P.3d 613 (2009).  This record is 
adequate. 

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State v. S.L.B.

Green, 94 Wn.2d 216, 221-22, 616 P.2d 628 (1980).  The reviewing court will consider 

the evidence in a light most favorable to the prosecution.  Green, 94 Wn.2d at 221.  

Reviewing courts also must defer to the trier of fact "on issues of conflicting testimony, 

credibility of witnesses, and the persuasiveness of the evidence."  State v. Thomas, 150 

Wn.2d 821, 874-75, 83 P.3d 970 (2004).  "Credibility determinations are for the trier of 

fact and are not subject to review."  Id. at 874.

       RCW 66.44.270(2)(a) provides: "It is unlawful for any person under the age of 

twenty-one years to possess, consume, or otherwise acquire any liquor." The trier of fact 

determines possession based on the totality of the evidence.  State v. Roth, 131 Wn. App. 

556, 563, 128 P.3d 114 (2006).  Possession for purposes of this statute means that the 

minor exercises dominion and control over the alcohol.  State v. Hornaday, 105 Wn.2d 

120, 125, 713 P.2d 71 (1986).  Possession can be actual or constructive.  Id.  Proximity to 

alcohol plus some other corroborating evidence may prove constructive possession.  State 

v. A.T.P.-R., 132 Wn. App. 181, 186, 130 P.3d 877 (2006).  

       In Hornaday, the court ruled that a minor who showed signs of intoxication was 

not in current possession of alcohol under the then-existing statute, which provided that a 
minor who was "in possession of or consumed"2 alcohol was in violation.  105 Wn.2d at 

125-26.  Instead, a person who had "assimilated" alcohol by consuming it was not in 

       2 See Laws of 1955, ch. 70, § 2. 

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No. 29963-5-III
State v. S.L.B.

current "possession" because he lacked control of the alcohol.  Id. at 126.3 Although 

Hornaday involved an officer's power to arrest a person for a misdemeanor committed in 

the officer's presence, RCW 10.31.100, subsequent cases have applied it to sufficiency of 

evidence challenges in minor in possession cases.  This court subsequently determined 

that evidence of consumption, when offered in conjunction with "other corroborating 

evidence," can establish possession of alcohol.  State v. Dalton, 72 Wn. App. 674, 676, 

865 P.2d 575 (1994).  

       S.L.B. argues that the evidence only shows assimilation of alcohol, not possession.  

She relies upon the decisions in A.T.P.-R., 132 Wn. App. 181; Roth, 131 Wn. App. 556;

and State v. Francisco, 148 Wn. App. 168, 199 P.3d 478 (2009).  In A.T.P.-R., the 

defendant smelled of alcohol and was standing next to another minor holding a 40-ounce

bottle of beer.  132 Wn. App. at 183-84.  In Roth, the defendant smelled of alcohol, 

swayed when he walked, and was in the company of an intoxicated youth who possessed 

five cans of beer.  131 Wn. App. at 559-60.  In Francisco, the inebriated defendant was 

found passed out in a driveway.  148 Wn. App. at 172-73.  

       In all of those cases, there was no other evidence in conjunction with the previous 

consumption that would establish possession of alcohol.  Dalton is a closer case factually 

       3 The legislature promptly amended the statute in response to Hornaday, adding 
the current language (which has been renumbered in subsequent amendments).  See Laws 
of 1987, ch. 458, § 3.  

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No. 29963-5-III
State v. S.L.B.

to this one.  There the defendant was seen leaving a house where a keg of beer and many 

empty glasses were visible.  72 Wn. App. at 675.  There was a strong odor of alcohol 

from his person, he was unsteady, his eyes were bloodshot, and his voice was slurred.  In 

the opinion of a police officer, the defendant was intoxicated.  Id.  This court affirmed the 

conviction for minor in possession, reasoning that the indicia of intoxication and his 

proximity to the beer keg supported the trial court's conclusion.  Id. at 676-77.

       The trial court correctly reasoned that this case fell on the Dalton side of the line 

because there was evidence beyond consumption to suggest that S.L.B. had possessed 

alcohol.  She was present at a party where there were many empty beer cans.  Unlike the 

facts in Roth and A.T.P.-R., there was no evidence here that the alcohol present in the 

house was in the sole control of someone other than the defendant.  Instead, the evidence 

allowed the trier of fact to conclude that S.L.B. jointly exercised control over the beer 

even though she denied having done so.  Credibility determinations will not be 

overturned on appeal.  Thomas, 150 Wn.2d at 874.

       In light of her apparent recent consumption of alcohol and the many empty beer 

cans, there was sufficient evidence for the trial judge to find that S.L.B., a minor, 

possessed alcohol.  The conviction is affirmed.

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No. 29963-5-III
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       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:

______________________________
       Kulik, J.

______________________________
       Siddoway, J.

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