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State v. Aker

The Court of Appeals of Washington, Division Two
Nov 23, 2004
124 Wn. App. 1022 (Wash. Ct. App. 2004)

Opinion

No. 30830-4-II

Filed: November 23, 2004 UNPUBLISHED OPINION

Appeal from Superior Court of Grays Harbor County. Docket No. 03-1-00119-1. Judgment or order under review. Date filed: 08/18/2003. Judge signing: Hon. F. Mark McCauley.

Counsel for Appellant(s), John Lester Farra, Attorney at Law, Dune Square Bldg Ste 5, PO Box 817, Ocean Shores, WA 98569-0817.

Counsel for Respondent(s), Gerald R. Fuller, Grays Harbor Co Pros Ofc, 102 Broadway Ave W Rm 102, Montesano, WA 98563-3621.


Christine M. Aker appeals a jury conviction of possession of methamphetamine. She claims insufficient evidence supports the conviction, the court erred in admitting evidence that she possessed marijuana and a marijuana pipe, and the prosecutor improperly asked her about a prior theft conviction. Finding none of these arguments persuasive, we affirm.

Facts

Hoquiam Police Officer Jeremy Mitchell stopped Aker's car for a taillight violation. Officer Mitchell noticed a strong odor of burnt marijuana on Aker when he asked for her license, registration, and insurance. While Mitchell ran a records check, Officer Jeff Salstrom arrived and approached the passenger side of Aker's car. Officer Salstrom saw Aker take a blue marijuana pipe from her purse and try to hide it between the two front seats. After arresting Aker for possessing drug paraphernalia, Salstrom searched her purse and found an Altoids tin full of marijuana and a plastic baggie containing 2.9 grams of methamphetamine.

Discussion

Evidence is sufficient to support a conviction if, viewed in the light most favorable to the State, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Joy, 121 Wn.2d 333, 338, 851 P.2d 654 (1993); State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980). A claim of insufficiency admits the truth of the State's evidence and requires us to draw all reasonable inferences in favor of the State. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). We accord circumstantial evidence equal weight with direct evidence. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). And we defer to the jury to resolve conflicting testimony, evaluate the witnesses' credibility, and weigh the evidence's persuasive value. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533, review denied, 119 Wn.2d 1011 (1992).

Aker admitted that the purse, the pipe, and the marijuana in the purse were hers. But she claimed the methamphetamine was not and that she was unaware it was in the purse. According to Aker, her sister and brother-in-law brought the purse home from the Salvation Army two days earlier. Thus, Aker admitted possessing the purse and its contents but contended that her methamphetamine possession was unwitting. The jury, however, was not obligated to accept Aker's explanation and it obviously did not. Clearly the evidence was sufficient to convict Aker of possessing the methamphetamine, and we will not tamper with the jury's credibility determination. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).

Aker claims the court erred in admitting evidence of the marijuana and pipe found in her purse. She argues that the evidence was `highly prejudicial' and that the trial court should have weighed its prejudice. Br. of Appellant at 5. She reasons that the evidence was not necessary to prove an essential element of the crime. We review a trial court's ruling on the admissibility of evidence for an abuse of discretion. State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998); State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995).

Evidence of other crimes is not admissible to prove the defendant's propensity for criminal conduct. ER 404(b). But such evidence may be admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. ER 404(b). Generally, before admitting the evidence, the trial court should weigh its possible prejudice against its probative value. State v. Lough, 125 Wn.2d 847, 853, 889 P.2d 487 (1995). Although the trial court did not weigh the possible prejudice of the evidence, we find no error.

Officer Mitchell noticed a strong odor of marijuana coming from Aker when he first approached her. And Aker conceded that the pipe and marijuana in the purse were hers. But she claimed she was unaware of another item in the purse. Evidence that she knowingly possessed and apparently had recently used the marijuana and pipe was relevant and persuasive evidence that she knew about the other contents of the purse, including the methamphetamine. Where the record clearly shows that the probative value of the challenged evidence outweighs its possible prejudice, we will excuse the trial court's failure to weigh prejudice against probative value before admitting the evidence. State v. Carleton, 82 Wn. App. 680, 686, 919 P.2d 128 (1996). We find no error in the trial court's decision to admit the evidence.

Aker contends the prosecuting attorney committed misconduct. She bears the burden of establishing both improper conduct and prejudice. State v. Brett, 126 Wn.2d 136, 175, 892 P.2d 29 (1995), cert. denied, 516 U.S. 1121 (1996). Prejudice exists where there is a substantial likelihood that the misconduct affected the jury's verdict. Brett, 126 Wn.2d at 175.

During cross-examination of Aker, the prosecuting attorney asked if she had been convicted of theft in Thurston County. Aker objected and the State withdrew the question. Aker contends that the prosecutor engaged in misconduct in asking the question. We disagree.

Evidence of a prior theft is admissible to impeach a testifying defendant under ER 609(a)(2). State v. McKinsey, 116 Wn.2d 911, 912, 810 P.2d 907 (1991). Thus, although the State withdrew the question, it could have properly pursued the issue.

During closing argument, the prosecuting attorney faulted Aker for not calling her brother-in-law to verify that the purse came from the Salvation Army several days before the incident. Aker asserts this amounted to prosecutorial misconduct. Again, we disagree. The prosecutor has wide latitude in closing argument to draw reasonable inferences from the evidence. State v. Hoffman, 116 Wn.2d 51, 94-95, 804 P.2d 557 (1991). The prosecutor may point out that the defendant failed to produce a witness or evidence that was particularly within the defendant's power to produce. See State v. Blair, 117 Wn.2d 479, 491-92, 816 P.2d 718 (1991).

During cross-examination of Officer Mitchell, Aker asked if he had gone to the Salvation Army to investigate. And Aker testified on cross-examination that her brother-in-law was not going to testify about working at the Salvation Army or bringing the purse to the house. Because both sides introduced evidence about the Salvation Army connection, the prosecutor did not engage in misconduct in arguing that Aker could have produced her brother-in-law to support her story.

We affirm.

A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.

BRIDGEWATER, P.J. and VAN DEREN, J., Concur.


Summaries of

State v. Aker

The Court of Appeals of Washington, Division Two
Nov 23, 2004
124 Wn. App. 1022 (Wash. Ct. App. 2004)
Case details for

State v. Aker

Case Details

Full title:STATE OF WASHINGTON, Respondent, v. CHRISTINE M. AKER, Appellant

Court:The Court of Appeals of Washington, Division Two

Date published: Nov 23, 2004

Citations

124 Wn. App. 1022 (Wash. Ct. App. 2004)
124 Wash. App. 1022