Opinion
No. 52018-1-I.
Filed: March 1, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 02-1-07299-9. Judgment or order under review. Date filed: 03/17/2003. Judge signing: Hon. Paris K Kallas.
Counsel for Appellant(s), Dale Allen Doc #974390 (Appearing Pro Se).
Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Catherine Lynn Floit, Attorney at Law, PO Box 27713, Seattle, WA 98165.
David Bruce Koch, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Counsel for Respondent(s), Cristy J Craig, King County Prosecuting Office, W554, 516 3rd Ave, Seattle, WA 98104-2390.
Prosecuting Atty King County, King County Prosecutor/appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
Dale Allen appeals his conviction for one count of delivery of cocaine and one count of possession of cocaine. He argues that the trial court erred when it admitted evidence that an undercover officer made a good buy signal to notify other officers that a controlled substance had been purchased. Because testimony about the signal was not hearsay, the trial court did not err. We affirm.
Two undercover officers testified at trial that they were conducting a buy-bust operation in Occidental Park in August, 2002 when they encountered Allen. Several other officers monitored the encounter from a distance. After the drugs changed hands, as the purchasing officer was walking away, he gave the good buy signal. Allen argues that this was assertive conduct communicating that the officer believed Allen had sold drugs to him. The State contends, however, that the testimony was not offered for its truth but rather to explain what happened next, namely that the other officers swooped in and placed Allen under arrest. The trial court agreed that the signal communicated that the undercover officers believed it was time for the arrest team to move in.
Although assertive non-verbal conduct may constitute hearsay, see, e.g., In re Dependency of Penelope B., 104 Wn.2d 643, 652, 709 P.2d 1185 (1985), in this case the good buy signal was offered to explain the sequence of events rather than as evidence establishing that a drug transaction had occurred. It thus is not hearsay. State v. Williams, 85 Wn. App. 271, 279-80, 932 P.2d 665 (1997) (statement by gate guard that defendant smelled of alcohol admitted to show basis for detaining defendant, not its truth). The trial court did not err in admitting this testimony, especially in view of the officers' testimony about the transaction that they obviously believed had occurred. Affirmed.
GROSSE and COX, JJ., concur.