Opinion
No. 28762-9-III.
Filed: May 10, 2011.
Appeal from a judgment of the Superior Court for Ferry County, No. 08-1-00047-8, Allen Nielson, J., entered December 18, 2009.
Affirmed in part and remanded with instructions by unpublished opinion per Brown, J., concurred in by Korsmo, A.C.J., and Siddoway, J.
UNPUBLISHED OPINION
William A. Page appeals his six unlawful trafficking in wildlife convictions. He contends a detective's testimony about an unrelated mail fraud arrest prejudiced the jury and denied him a fair trial. Considering the isolated, unresponsive remark, the court's immediate order to disregard it, the overwhelming guilt evidence, and the lack of impact on Mr. Page's defense, we disagree and affirm. Even so, we remand for resentencing due to a conceded unit-of-prosecution error requiring entry of misdemeanor convictions on certain counts.
FACTS
William Page is retired and works part-time from his home cutting meat and farming pigs. Washington Department of Fish and Wildlife (WDFW) Detectives Todd Vandivert and Dan Chadwick, working undercover, began meeting with Mr. Page at his house in September 2007. Eventually, WDFW agents arranged multiple sales shown on video from a hidden camera.
Mr. Page was charged with six counts of unlawful trafficking in wildlife. The number of bear gall bladders purchased for each count, and the price paid for each sale, are as follows: count 1: one bear gall bladder for $80; count 2: four bear gall bladders for $370; count 3: one bear gall bladder for $100; count 4: one bear gall bladder for $100; count 5: seven bear gall bladders for $650; and count 6: three bear gall bladders for $300. While it is disputed whether Mr. Page initially purchased any bear gall bladders on the first occasion, Mr. Page admitted at trial he purchased bear gall bladders on six different occasions between September 2007 and September 2008. Counts 1, 3, and 4 were charged as RCW 77.15.260(1)(a), second-degree unlawful trafficking, because the value of the single bear gall bladder purchased in each of those transactions was less than $250. Counts 2, 5, and 6 were charged as RCW 77.15.260(2)(a), first degree unlawful trafficking, because the aggregate value of the bear gall bladders purchased in each of those transactions was more than $250.
The trial evidence showed Mr. Page knew the sales were illegal. His defense theory was that he needed the gall bladders as a naturopathic remedy to treat ailments of the type he described to the jury.
Overwhelming evidence of Mr. Page's guilt was produced at trial in addition to his admissions. Detective Vandivert kept copies of the checks and cash Mr. Page paid with for each of the six sales. Detective Vandivert took tissue samples from each of the bear gall bladders sold to Mr. Page. All of the tissue samples were tested either at the State Fish and Wildlife laboratory or the U.S. Fish and Wildlife laboratory, or both. DNA forensics confirmed that all of the tissue samples came from a North American black bear. When WDFW officers executed a search warrant on Mr. Page's home and shop, they found three bear gall bladders in one of Mr. Page's freezers. The State showed the jury the video taken by the hidden camera for each contact. Mr. Page is seen inspecting the bear gall bladders. For two of the sales, Mr. Page is seen paying the detectives. The State introduced copies of the checks Mr. Page wrote and the cash he paid with. And, the State introduced evidence from WDFW laboratories connecting Mr. Page to the gall bladders recovered while executing a search warrant of Mr. Page's home.
Deoxyribonucleic acid.
In an earlier unrelated trial, Mr. Page claims he successfully moved in limine to prohibit any reference to his prior arrest for mail fraud. The motion was not extended or renewed in this trial. Even so, during the State's direct examination of Detective Vandivert, the detective related unresponsively to a tangential question: "He — he told us that he had once been arrested for mail fraud himself and that we — ." Record of Proceedings (RP) (Nov. 9, 2009) at 167.
Mr. Page's counsel immediately objected to the response and moved for a mistrial. The trial court excused the jury for a brief recess. The court ruled the remark "clearly [was] not admissible" and was prejudicial. RP (Nov. 9, 2009) at 169. However, the court denied the mistrial motion, reasoning an instruction to disregard the testimony would suffice. The court instructed the jury: "Please be seated. Alright and ladies and gentlemen, just before our recess here there was some testimony to the affect [sic] that Mr. Page had been arrested at an earlier date and you are to disregard any testimony about that and whatever was testified to by the witness." RP (Nov. 9, 2009) at 171.
The jury found Mr. Page guilty on all six counts. He appealed.
ANALYSIS A. Mistrial Motion
The issue is whether the trial court erred in denying Mr. Page's mistrial motion based on Detective Vandivert's testimony about Mr. Page's mail fraud arrest. We review a trial court's decision to grant or deny a mistrial for an abuse of discretion. State v. Gamble, 168 Wn.2d 161, 177, 225 P.3d 973 (2010).
"A mistrial should be granted when the defendant has been so prejudiced that nothing short of a new trial can insure that the defendant will be tried fairly." Id. (citing State v. Greiff, 141 Wn.2d 910, 921, 10 P.3d 390 (2000)). A trial court's denial of a motion for mistrial should be overturned only if there is a substantial likelihood that the prejudice affected the verdict. Id. Thus, when an irregularity in the trial proceedings occurs, the court must decide its prejudicial effect. Id.
In determining the effect of an irregularity, a reviewing court examines the following factors:
(1) the seriousness of the irregularity;
(2) whether the challenged evidence was cumulative of other evidence properly admitted; and
(3) whether the trial court properly instructed the jury to disregard the evidence.
Id.; see State v. Babcock, 145 Wn. App. 157, 163-66, 185 P.3d 1213 (2008).
Regarding seriousness, when the irregularity is testimony about the defendant's criminal history, seriousness can depend on whether there was a motion in limine prohibiting the testimony, similarity of the past offense to the crime charged, and the strength of the rest of the State's evidence. See State v. Hopson, 113 Wn.2d 273, 284-86, 778 P.2d 1014 (1989); State v. Thompson, 90 Wn. App. 41, 46, 950 P.2d 977 (1998); State v. Escalona, 49 Wn. App. 251, 254, 742 P.2d 190 (1987).
Despite Mr. Page's assertion, no motion in limine explicitly prohibited the remarks. Nonetheless, evidence of prior bad acts is generally inadmissible. ER 404(b). In addition, the statement was made by a detective. Mr. Page notes, "[T]testimony from law enforcement officers often carries a special aura of reliability for juries." Br. of Appellant at 8 (citing State v. Demery, 144 Wn.2d 753, 765, 30 P.3d 1278 (2001)). The detective's comment, however, was inadvertent. An unintentional introduction of inadmissible evidence relating to criminal history is less serious than one that is intentional. Gamble, 168 Wn.2d at 178. And, an arrest for mail fraud is not similar to a charge of trafficking wildlife. Given the overwhelming incriminating facts and Mr. Page's admissions and defense theory, the statement was not a serious irregularity.
Detective Vandivert's statement about Mr. Page's mail fraud arrest was singular, not cumulative of any other evidence. The State argues Hopson is instructive when an irregularity is not cumulative. 113 Wn.2d at 286. In Hopson, the Supreme Court reasoned that although the irregularity was not cumulative, it was not prejudicial because it did not change defense strategy. Id. Testimony about his mail fraud arrest did not change Mr. Page's defense.
Finally, the court properly instructed the jury to disregard the improper testimony. Mr. Page cites State v. Suleski, 67 Wn.2d 45, 51, 406 P.2d 613 (1965), for the proposition that although juries are presumed to follow court instructions, sometimes the prejudicial effect is too serious to remove an adverse impression. But as discussed above, the testimony was not a serious irregularity in the context of this trial. Thus, the trial court's immediate recess and its direction to disregard the testimony sufficiently mitigated any prejudicial effect the testimony might have had on the jury.
Mr. Page reiterates the same concerns in his statement of additional grounds (SAG). Though Mr. Page mistakenly attributes the comment to a different detective, his argument is identical to his counsel's argument. Since it has been adequately briefed by counsel, we will not address it. See RAP 10.10(a) (purpose of SAG is to permit appellant, "to identify and discuss those matters which the defendant/appellant believes have not been adequately addressed by the brief filed by the defendant/appellant's counsel").
Given all, we conclude the irregularity here was not so seriously prejudicial as to deny Mr. Page a fair trial. Accordingly, we hold the trial court did not abuse its discretion in denying the mistrial motion.
B. Unit of Prosecution
The next issue is whether the trial court erred in allowing the jury to find Mr. Page guilty of first degree wildlife trafficking when the State aggregated the value of multiple gall bladders purchased in a single transaction.
Mr. Page did not raise this issue at trial, but the parties agree after we invited further briefing that the trial court erred under State v. Yon, 159 Wn. App. 195, 246 P.3d 818 (2010). A person is guilty of second degree unlawful trafficking in wildlife if the person traffics in wildlife with a value of less than $250. RCW 77.15.260(1). If the wildlife has a value of $250 or more, the person is guilty of first degree unlawful trafficking in wildlife. RCW 77.15.260(2)(a). Where it is unlawful to traffic in wildlife, "each individual animal unlawfully taken . . . is a separate offense." RCW 77.15.030.
We recently recognized in State v. Yon that RCW 77.15.030 applies to trafficking in wildlife under RCW 77.15.260 by its plain language. Yon, 159 Wn. App. at 200. We clarified, "[t]he term 'wildlife' includes the body parts of big game animals such as black bears." Id. Thus, a trafficking transaction involving the purchase of more than one bear gall bladder, which necessarily came from more than one individual animal, amounts to two separate crimes under the legislature's chosen unit of prosecution. Id. at 202. Therefore, we held that RCW 77.15.030 does not allow the value aggregation of more than one bear gall bladder when purchased in one transaction. Id.
In order to find a defendant guilty of a crime, the State must prove each element beyond a reasonable doubt. State v. Kroll, 87 Wn.2d 829, 840, 558 P.2d 173 (1976). The State did not prove the value element of first degree wildlife trafficking here, since no evidence suggests that the value of any individual gall bladder was $250 or more. Mr. Page's first degree wildlife trafficking convictions must therefore be vacated.
We may direct the trial court to enter convictions for the lesser-included offense of wildlife trafficking in the second degree so long as the jury made findings sufficient to support those convictions. State v. Gilbert, 68 Wn. App. 379, 385, 842 P.2d 1029 (1993). In order to find Mr. Page guilty of first degree wildlife trafficking, the jury necessarily found all the facts necessary to convict him of second degree wildlife trafficking beyond a reasonable doubt. We therefore vacate Mr. Page's three felony convictions of wildlife trafficking in the first degree and direct resentencing as misdemeanors.
Affirmed. Remanded for action consistent with this opinion.
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, A.C.J. and SIDDOWAY, J., concur.