State Of Washington, Respondent/cr-appellant V. Courtney M. Mackay, Appellant/cr-respondent

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COURT OF APPEALS DI’i
STATE UF WASHINGTON
2019JAN22 AHIO:08
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 77344-5-I
Respondent,
DIVISION ONE
v.
)
COURTNEY MARIE MACKAY, ) 	UNPUBLISHED OPINION
)
Appellant. 	) 	FILED: January22, 2019
_____________________________________________________________________________________)
SMITH, J. — Courtney Mackay appeals her conviction for possession of a
controlled substance and requests that the criminal filing fee assessed at
sentencing be stricken. While the State concedes that the filing fee should be
stricken, Mackay’s conviction was supported by sufficient evidence. Therefore,
we affirm in part and remand to the trial court to amend Mackay’s judgment and
sentence by striking the criminal filing fee.
FACTS
Officers contacted and arrested Mackay on May 25, 2014, after locating
her in a car that had been reported stolen. A search incident to arrest revealed a
baggie containing a substance later confirmed as heroin. The State charged
Mackay by information with possession of a controlled substance. A stipulated
bench trial was held on agreed documentary evidence, and the trial court found
Mackay guilty as charged. Mackay appeals.

No. 77344-5-112
ANALYSIS
Sufficiency of the Evidence
Mackay contends that there was insufficient evidence to support the trial
court’s finding that Mackay was in possession of heroin.1 We disagree.
Evidence is sufficient when any rational trier of fact could find beyond a
reasonable doubt the essential elements of the crime. State v. Green, 94 Wn.2d
216, 221-22, 616 P.2d 628 (1980). When considering a sufficiency challenge,
we view the evidence in the light most favorable to the State and ‘we must defer
to the trier of fact on issues of conflicting testimony, credibility of witnesses, and
the persuasiveness of the evidence.” State v. Killingsworth, 166 Wn. App. 283,
287, 269 P.3d 1064 (2012). Whether evidence is sufficient is a question of
constitutional law that we reviewde novo. Statev. Rich, 184 Wn.2d 897, 903,
365 P.3d 746 (2016).
Here, the State charged Mackay with possession of a controlled
substance. Therefore, the State was required to prove the fact of possession
beyond a reasonable doubt. RCW 69.50.4013; State v. Staley, 123 Wn.2d 794,
798, 872 P.2d 502 (1994). Possession may be actual or constructive. Staley,
123 Wn.2d at 798. “Actual possession means that the goods are in the physical
custody of the person charged with possession; whereas, constructive
possession means that the goods are not in actual, physical possession, but that
the person charged with possession has dominion and control over the goods.”
1 	Mackay does not challenge any of the trial court’s other findings.
Therefore, those findings are verities on appeal. State v. Homan, 181 Wn.2d
102, 106, 330 P.3d 182 (2014).
2

No. 77344-5-113
State v. Callahan, 77 Wn.2d 27, 29, 459 P.2d 400 (1969).
We conclude that the documentary evidence considered at trial was
sufficient to support the trial court’s possession finding. Mackay wrote in her
statement that for a few days leading up to her arrest, she and her boyfriend tried
to find heroin. She also wrote that on Sunday, May 25, 2014, “we spent the day
trying to get a sack; we were finally able to pick up around 11:00 p.m. We then
went to Walmart whe[n] the cops came.” Deputy James Sadro, Jr., who
contacted Mackay after observing her at Walmart in the driver’s seat of an
allegedly stolen car, wrote in his report that Mackay had an open purse sitting in
plain view on her lap and that clearly visible in that open purse was a partially
opened sunglasses case. Deputy Sadro arrested Mackay for vehicle theft and
searched the sunglasses case incident to arrest, discovering a baggie containing
a dark substance that later tested positive as heroin. Finally, Mackay’s written
confession states that “[o]n May 25, 2014, in Snohomish Co[unty], WA, [she] did
unlawfully possess Heroin, a controlled substance.” Considered in the light most
favorable to the State, this evidence was sufficient to prove beyond a reasonable
doubt that Mackay had physical custody of—and actually possessed—heroin.
Cf. State v. Easterlin, 126 Wn. App. 170, 174, 107 P.3d 773 (2005) (defendant
actually, not just incidentally, possessed firearm while it was in his physical
custody on his lap), affd, 159 Wn.2d 203, 149 P.3d 366 (2006).
Relying on State v. Summers, 107 Wn. App. 373, 28 P.3d 780, 43 P.3d
526 (2002), Mackay argues that “the mere finding of items of contraband next to
a person where they are sitting is not proof of the actual possession necessary to
3

No. 77344-5-1/4
convict.” But here, the contraband was not found next to Mackay—it was found
in an open purse sitting in her lap. Summers does not require reversal.
Criminal Filing Fee
Mackay argues that the criminal filing fee imposed by the trial court should
be stricken from her judgment and sentence. We agree.
When Mackay was sentenced, the trial court assessed a mandatory filing
fee under former RCW 36.18.020(2)(h). That statute was amended during the
pendency of this appeal to provide that the filing fee “shall not be imposed on a
defendant who is indigent.” LAWS OF 2018, ch. 269, § 17, at 1632. In State v.
Ramirez, 191 Wn.2d 732, 426 P.3d 714 (2018), our Supreme Court held that the
amendment applies to cases that were pending on direct review and not final
when the amendment was enacted. Ramirez, 191 Wn.2d at 747.
It is undisputed that Mackay was indigent at sentencing, and the State
concedes that the criminal filing fee should be stricken here in light of Ramirez.
We accept the State’s concession.
We affirm in part and remand to the trial court to amend Mackay’s
judgment and sentence by striking the criminal filing fee.
WE CONCUR: