State Of Washington, Respondent V. Adrian O. Jacobs, Appellant

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COURT OF Ai") .CALS DIV I
STATE OF IVASH1NGI
2019 JAN 22 AMICI: 22
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
V.
ADRIAN OBRYANT JACOBS,
Appellant.
No. 79062-5-1
DIVISION ONE
UNPUBLISHED OPINION
FILED: January 22, 2019
CHUN, J. — The State charged Adrian Jacobs with one count of first
degree unlawful possession of a firearm. Jacobs argued the firearm belonged to
another suspect at the residence. A jury convicted Jacobs as charged. Jacobs
contends the evidence does not suffice to support his conviction. Jacobs further
asserts that the trial court violated his right to present a defense by denying his
motion to introduce evidence of another suspect's criminal history. We affirm the
conviction, but remand for the trial court to strike the criminal filing fee and the
DNA fee it imposed against Jacobs.
BACKGROUND
Amanda Mullenix served as Jacobs's supervising community corrections
officer(CCO). The terms of Jacobs's Department of Corrections(DOC)
supervision required him to report a "valid and verifiable" current address. On
September 24, 2015, Jacobs reported his address as 1723 East 46th Street in
Tacoma, Washington. On July 12, 2016, Jacobs reported he had moved into his

No. 79062-5-1/2
mother's residence. She subsequently passed away. On September 15, 2016,
Jacobs reported he had moved back to his girlfriend's residence at 1723 East
46th Street. On September 21, 2016, Mullenix conducted a routine home visit to
that address. Leslie Cabreros, the father of Jacobs's girlfriend, answered the
door. Cabreros confirmed that Jacobs had moved back into the home.'
On September 27, 2016, Jacobs reported to the DOC office in Tacoma.
Several CCOs went to 1723 East 46th Street to conduct a search. Jacobs
remained outside in the transport vehicle with one of the officers. When they
arrived, Cabreros answered the door. He was the only person home at that time.
The CCOs entered the residence and Cabreros stepped outside. During the
search, CCOs found a loaded semiautomatic handgun on the living room floor
near the couch. Cabreros's keys and a wallet with Cabreros's identification
inside were on the floor near the gun. Upon finding the firearm, the CCOs called
for assistance from the Tacoma Police Department. A police forensic specialist
subsequently recovered one partial latent fingerprint from the firearm. The print
matched a known print of Jacobs's right little finger. Cabreros was excluded as a
match.
While searching the bedroom that Jacobs shared with his girlfriend,
Mullenix found "gender neutral" shirts and pants she thought "were bigger than
what the girlfriend would wear." She observed "female items" on one side of the
bed, but "there wasn't a whole lot of stuff" on the other side. In a downstairs
1 Cabreros told Mullenix that his daughter and children also lived at the house. The
record does not specify the children's parents.
2

No. 79062-5-1/3
closet near the rear door, Mullenix observed a jacket with a distinctive design and
a pair of tan boots she had seen Jacobs wearing before. Mullenix observed
some other men's clothing in the closet, but could not definitively say whose it
was.
On September 28, 2016, the State charged Jacobs with one count of first
degree unlawful possession of a firearm. After Jacobs's first trial resulted in a
hung jury, the court declared a mistrial and reset the matter for a second trial.
On May 10, 2017, the jury found Jacobs guilty as charged. Jacobs appeals.
ANALYSIS
Sufficiency of the Evidence
Jacobs challenges the sufficiency of the evidence to support his
conviction. "Evidence is sufficient to support a guilty verdict if any rational trier of
fact, viewing the evidence in the light most favorable to the State, could find the
elements of the charged crime beyond a reasonable doubt." State v. Cardenas-
Flores, 189 Wn.2d 243, 265, 401 P.3d 19 (2017). Our review on a challenge to
the sufficiency of the evidence in a criminal case remains highly deferential to the
jury's decision. State v. Davis, 182 Wn.2d 222, 227, 340 P.3d 820 (2014). "In
claiming insufficient evidence, the defendant necessarily admits the truth of the
State's evidence and all reasonable inferences that can be drawn from it." State
v. Drum, 168 Wn.2d 23, 35, 225 P.3d 237(2010).
A person is guilty of first degree unlawful possession of a firearm "if the
person owns, has in his or her possession, or has in his or her control, any
firearm after having previously been convicted ... of any serious offense as
3

No. 79062-5-1/4
defined in this chapter." RCW 9.41.040(1)(a). The State must also prove
knowing possession of the firearm. State v. Anderson, 141 Wn.2d 357, 359,
5 P.3d 1247 (2000).
The parties stipulated that Jacobs had previously been convicted of a
felony classified as a serious offense and therefore could not lawfully own, or
have in his possession, or under his control, any firearm. Therefore, the issue
before us concerns whether sufficient evidence established his possession or
control of the firearm.2
Possession may be actual or constructive. State v. Jones, 146 Wn.2d
328, 333, 45 P.3d 1062 (2002). Actual possession means personal custody or
actual physical possession. State v. Manion, 173 Wn. App. 610, 634, 295 P.3d
270 (2013). "[C]onstructive possession can be established by showing the
defendant had dominion and control over the firearm or over the premises where
the firearm was found." State v. Echevarria, 85 Wn. App. 777, 783, 934 P.2d
1214 (1997). In determining dominion and control, the court considers the totality
of the circumstances and does not view any single factor as dispositive. State v.
Collins, 76 Wn. App. 496, 501, 886 P.2d 243(1995). Evidence of temporary
residence or the mere presence of personal possessions on the premises does
not suffice to establish dominion and control. State v. Alvarez, 105 Wn. App.
215, 222, 19 P.3d 485(2001).
Jacobs argues the evidence does not suffice to support an inference that
2 The to-convict instruction in this case required knowing possession or control, not proof
of ownership.
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No. 79062-5-1/5
he had actual or constructive possession of the firearm found at the residence.
He relies on State v. Callahan, 77 Wn.2d 27, 31-32, 459 P.2d 400 (1969), State
v. Spruell, 57 Wn. App. 383, 387-88, 788 P.2d 21 (1990), and State v. Cote, 123
Wn. App. 546, 550, 96 P.3d 410 (2004), for the proposition that mere proximity
and momentary handling of the firearm does not suffice to establish constructive
possession. But in those cases, the State did not show defendant's dominion
and control over the premises where the contraband was found. Here, in
contrast, Mullenix testified that Jacobs reported the 1723 East 46th Street
address to DOC as his residence on September 15, 2016, twelve days prior to
his arrest. Mullenix had previously observed Jacobs at the residence, and
Cabreros told her that Jacobs had moved back in.3 Mullenix also observed
clothing belonging to Jacobs in the closet. "[W]hen a person has dominion and
control over a premises, it creates a rebuttable presumption that the person has
dominion and control over items on the premises." State v. Reichert, 158 Wn.
App. 374, 390, 242 P.3d 44 (2010). Furthermore, the firearm recovered in the
living room bore Jacobs's fingerprint, thereby indicating that he was aware of the
presence of the firearm and had actually handled it. Viewed in the light most
favorable to the State and drawing all inferences against Jacobs, this evidence
suffices to establish that Jacobs had dominion and control over the premises and
the firearm. See State v. Summers, 107 Wn. App. 373, 388-90, 28 P.3d 780
3 Apart from a two month period in 2016 when Jacobs reported living at his mother's
residence, Jacobs had reported 1723 East 46th Street as his residence for almost a year prior to
discovery of the firearm.
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No. 79062-5-1/6
(2001)(defendant's admission that he lived in the basement where firearm was
found established dominion and control over the premises sufficient to allow jury
to infer constructive possession, even though he shared the space with others
and was not present when police discovered the firearm).
Jacobs seeks to rebut the presumption of dominion and control over the
premises by presenting his friend Ryan Dolan as a witness. Dolan testified that
Jacobs started staying with him approximately five to seven days before the
firearm was discovered on September 27, 2016. But Jacobs's address on file
with DOC was the 1723 East 46th Street residence. Jacobs argues the lack of
personal items at that residence corroborates Dolan's testimony that Jacobs had
been staying with him. However, "[t]his court must defer to the trier of fact on
issues of conflicting testimony, credibility of witnesses, and the persuasiveness of
evidence." State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004). The
evidence sufficiently supported the conviction.
Other Suspect Evidence
Jacobs argues the trial court violated his constitutional right to present a
defense by rejecting his motion to present evidence that Cabreros had a motive
to deny possessing the firearm. A trial court's decision to admit or exclude other
suspect evidence is reviewed for abuse of discretion. State v. Wade, 186 Wn.
App. 749, 765, 346 P.3d 838 (2015).
Both the Sixth Amendment to the United States Constitution and article I,
section 22 of the Washington Constitution guarantee a criminal defendant's right
to present a defense. State v. Strizheus, 163 Wn. App. 820, 829-30, 262 P.3d
6

No. 79062-5-1/7
100 (2011). But criminal defendants do not have a constitutional right to present
irrelevant evidence. State v. Jones, 168 Wn.2d 713, 720, 230 P.3d 576 (2010).
ER 401 defines "relevant evidence" as "evidence having any tendency to make
the existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence." "The
standard for relevance of other suspect evidence is whether there is evidence
'tending to connect' someone other than the defendant with the crime." State v.
Franklin, 180 Wn.2d 371, 381, 325 P.3d 159(2014)(quoting State v. Downs, 168
Wn.2d 664, 667, 13 P.2d 1 (1932)). "[S]ome combination of facts or
circumstances must point to a nonspeculative link between the other suspect and
the charged crime." Franklin, 180 Wn.2d at 381. The court must focus the trial
"by excluding evidence that has only a very weak logical connection to the
central issues." Wade, 186 Wn. App. at 765 (quoting Franklin, 180 Wn.2d at
378).
At a pretrial hearing, Jacobs sought to introduce evidence of Cabreros's
criminal history to show that Cabreros was a convicted felon who could not
lawfully possess a firearm and had a motive not to claim ownership of it. Jacobs
noted that Cabreros was alone at the house with the firearm, in close proximity to
it when he answered the door, and that his wallet and keys were found on the
floor near the firearm. The trial court denied the motion on the ground that mere
evidence of motive to deny ownership was not enough to connect Cabreros with
the firearm. The court specified that its ruling did not prevent the defense from
arguing that there were other people in the home who could have actual or
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No. 79062-5-1/8
constructive possession of the firearm.
Jacobs contends that evidence of Cabreros's criminal history was relevant
because it established a reason for his failure to take ownership of the firearm at
the time of discovery. The felon status might have bore relevance had Cabreros
denied ownership. But neither side called Cabreros as a witness at trial. The
record does not indicate whether Cabreros denied ownership or possession of
the firearm. Evidence regarding Cabreros's motive to deny ownership of the
firearm was therefore not relevant. Moreover, such evidence would not make it
more or less likely that Cabreros possessed the firearm to the exclusion of
Jacobs. Dominion and control need not be exclusive to support a finding of
constructive possession. Summers, 107 Wn. App. at 384.
"The defendant has the burden of showing that the 'other suspect'
evidence is admissible." State v. Howard, 127 Wn. App. 862, 866, 113 P.3d 511
(2005). Jacobs did not meet this burden. The trial court did not abuse its
discretion in excluding irrelevant evidence of Cabreros's criminal history.4 The
court allowed Jacobs to present evidence in support of his argument that
Cabreros had dominion and control over the firearm. Exclusion of irrelevant
criminal history evidence did not undermine Jacobs's constitutional right to
present a defense.
Motion to Strike Fees
After the parties completed their briefing for this case, the Washington
4 The trial court did not exclude the evidence on this basis. We acknowledge Jacobs's
argument that the trial court erred in refusing to consider other evidence connecting Cabreros to
the gun. However, we may affirm a lower court's ruling on any grounds adequately supported in
the record. State v. Costich, 152 Wn.2d 463, 477, 98 P.3d 795 (2004).
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No. 79062-5-1/9
Supreme Court issued its decision in State v. Ramirez, 191 Wn.2d 732, 426 P.3d
714 (2018). In Ramirez, the Court held that ENGROSSED SUBSTITUTE H.B. 1783,
65th Leg., Reg. Sess.(Wash 2018)(HB 1783) applies prospectively to cases on
appeal. Id. at 747. HB 1783, which became effective on June 7, 2018, amends
RCW 36.18.020(2)(h) and prohibits courts from assessing a criminal filing fee for
defendants who are indigent at the time of sentencing. HB 1783 also amends
RCW 43.43.7541 to provide that the $100 DNA collection fee is no longer
mandatory where the State "has previously collected the offender's DNA as a
result of a prior conviction."
Jacobs moves to strike the $200 criminal filing fee and $100 DNA fee from
his judgment and sentence pursuant to HB 1783 and Ramirez. The State
acknowledges that Jacobs was found indigent at the time of sentencing. The
State further acknowledges that its records show Jacobs's DNA was previously
collected and is on file with the Washington State Patrol Crime Lab. We
therefore direct the trial court to strike the $200 criminal filing fee and $100 DNA
collection fee from his judgment and sentence.
Affirmed and remanded.
WE CONCUR:
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