Opinion
No. 53594-3-I
Filed: April 18, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Whatcom County. Docket No: 02-1-01181-3. Judgment or order under review. Date filed: 11/20/2003. Judge signing: Hon. Michael F. Moynihan.
Counsel for Appellant(s), Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
David Bruce Koch, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Counsel for Respondent(s), James T. Hulbert, Attorney at Law, 311 Grand Ave Ste 201, Bellingham, WA 98225-4038.
Hilary A. Thomas, Whatcom County Prosecutors Office, 311 Grand Ave Ste 201, Bellingham, WA 98225-4038.
Kristopher Bass moved to exclude evidence that he had used drugs in the past, but the trial court denied the motion. He was convicted of possession of cocaine. Bass appeals claiming that he was prejudiced by the evidence of his prior drug use, and he did not receive a fair trial because the prosecuting attorney committed misconduct. We reverse his conviction because the court committed prejudicial error by admitting evidence of Bass's prior drug use.
I.
Kristopher Bass was in the front passenger seat of Sheila Orne's car when two bicycle police officers stopped the vehicle at an intersection in downtown Bellingham. Although it was dark, Orne did not have her headlights on. One officer approached Orne's car on the driver's side, the other officer approached on the passenger side.
Officer Keith Johnson testified that he watched Bass while Officer Don Almer spoke with Orne. Johnson observed Bass "reach slowly down between what appeared to be the door and the passenger seat in a movement that was slow enough that it looked to me like he was trying to conceal something." Orne was directed to pull over out of the intersection as the light changed. Once the car was pulled over, Johnson attempted to speak with Bass. Because the window did not roll down, Bass opened the door. Johnson then looked at the area in which he suspected Bass had concealed something and he saw a small, tied piece of plastic with a white substance inside. He noted at the time that the car was messy, but he did not specifically recall anything else near the plastic. Once he saw the bindle, he instructed Bass to step out of the car and secured him with handcuffs. Bass denied the cocaine was his and further claimed that he did not know it was in the car. Johnson asked if Bass was a drug user and Bass replied that he had been, but he was now clean. Bass denied reaching down and concealing the drugs. He also responded to Johnson's question about who was the owner of the drugs by explaining that they had given a ride to a woman named Amber earlier in the day.
Almer spoke with Orne about the drugs that were found in her car and she stated that she did not know the drugs were in her car or to whom they belonged. She also stated that she did not believe they belonged to Bass. She never mentioned a woman named Amber. Johnson discovered a marijuana pipe in the glove compartment of the car and Orne admitted it was hers. Bass was arrested and charged with possession of a controlled substance in violation of RCW 69.50.401(d). The white substance was tested and found to be cocaine.
During a CrR 3.5 hearing, Bass moved in limine to exclude testimony of his prior drug use. The trial court denied the motion. At trial, the prosecuting attorney questioned both Johnson and Bass about Bass's statement that he had used drugs previously. Bass admitted that he had previously used cocaine. Bass also accused Officer Johnson of being under the influence of cocaine at the time of the arrest, and claimed that the cocaine actually belonged to Johnson.
Before deliberation, the court instructed the jury with an "unwitting possession" defense instruction. The jury found Bass guilty as charged.
II.
We review a trial court's evidentiary ruling for an abuse of discretion. Bass argues that the trial court erred by admitting evidence of his prior drug use. Evidence Rule 404(b) governs the admission of evidence of prior bad acts. The rule in pertinent part provides:
State v. Lane, 125 Wn.2d 825, 831, 889 P.2d 929 (1995).
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
ER 404(b).
"To admit evidence of other crimes or wrongs under Washington law, the trial court must (1) identify the purpose for which the evidence is sought to be introduced, (2) determine whether the evidence is relevant to prove an element of the crime charged and (3) weigh the probative value of the evidence against its prejudicial effect."
State v. Lough, 125 Wn.2d 847, 853, 889 P.2d 487 (1995).
But "[r]egardless of relevance or probative value, evidence that relies on the propensity of a person to commit a crime cannot be admitted to show action in conformity therewith." Moreover "[i]f the only relevancy is to show propensity to commit similar acts, admission of prior acts may be reversible error."
State v. Wade, 98 Wn. App. 328, 334, 989 P.2d 576 (1999).
State v. Pogue, 104 Wn. App. 981, 985, 17 P.3d 1272 (2001).
The State argues that the evidence should have been admitted to prove motive or under the res gestae exception and that admission of the evidence was not unduly prejudicial. The State relies on State v. Powell to argue that prior misconduct can be especially important for establishing motive in cases where there is only circumstantial evidence. In Powell, the court ruled that testimony of previous fights, assaults, and threats demonstrated a hostile relationship between the victim and defendant, establishing a motive for the murder. But evidence of prior drug use does not establish motive in the same way that the evidence in Powell demonstrated "an impulse, desire, or any other moving power which causes an individual to act." The State essentially is arguing that once a person has used drugs, he always has a motive to use drugs. This is exactly the kind of propensity argument prohibited by ER 404(b).
126 Wn.2d 244, 893 P.2d 615 (1995).
Powell, 126 Wn.2d at 260.
Powell, 126 Wn.2d at 259.
The State also argues that the evidence was admissible to rebut Bass's defense of unwitting possession. In State v. Weiss, the defendant was charged with possession after marijuana was found in his house. Our Supreme Court allowed testimony that the defendant had smoked marijuana in the house where he was arrested, reasoning that evidence of his prior marijuana use in that house had a direct bearing on constructive possession, i.e., whether or not the defendant knew of the presence of marijuana in the house.
73 Wn.2d 372, 438 P.2d 610 (1968).
Weiss, 73 Wn.2d at 377.
Weiss, 73 Wn.2d at 377.
The facts in Weiss are distinguishable from the facts in Bass's case. Bass admitted to prior use of drugs, but not to prior use in the car in which the drugs were found. Thus, his prior use did not inform the question of whether he knew the drugs were in the car.
In State v. Hall, the defendant was convicted of possession of marijuana. As a defense, he claimed that he did not recognize that the plants growing among his berries were marijuana plants. The court allowed testimony that the defendant had previously purchased marijuana, reasoning that "when the [defendant] asserted lack of knowledge that the plants growing on his premises were marijuana, it was then proper for the state to show that he knew what marijuana was, so that the jury might properly infer that he knew what kind of plants he was growing."
41 Wn.2d 446, 249 P.2d 769 (1952).
Hall, 41 Wn.2d at 447.
Hall, 41 Wn.2d at 449.
Hall, 41 Wn.2d at 451.
But the facts of Bass's case are unlike those in Hall and more similar to those of State v. Pogue. In Pogue, the defendant was convicted of possession of cocaine found in the car he was driving. Pogue offered an unwitting possession defense, denying that he knew the drugs were in the car. The trial court allowed the State to elicit Pogue's testimony that he had used cocaine in the past. We reversed the trial court, explaining that Pogue's defense was not that he did not recognize the substance as an illegal one, but that he simply did not know it was there. Thus, the evidence of prior use was only relevant through a prohibited propensity argument.
104 Wn. App. 981, 17 P.3d 1272 (2001).
Pogue, 104 Wn. App. at 981-82.
Pogue, 104 Wn. App. at 982.
Pogue, 104 Wn. App. at 982.
Pogue, 104 Wn. App. at 985.
Pogue, 104 Wn. App. at 985.
Similarly, Bass did not claim he did not know that the substance was an illegal one, even though he did testify that he did not recognize the substance when the officer presented it to him. Instead, he claimed he did not know of the presence of the drug. Therefore, as with the evidence of prior drug use in Pogue, the evidence that Bass had used drugs previously did not respond to his defense of unwitting possession.
Finally, the State argues that the evidence was admissible under a res gestae exception. Our courts recognize a "res gestae" or "same transaction" exception in which "evidence of other crimes is admissible `[t]o complete the story of the crime on trial by proving its immediate context of happenings near in time and place.'" The evidence is admissible to complete a picture for the jury "[w]here another offense constitutes a `link in the chain' of an unbroken sequence of events surrounding the charged offense. . . ."
State v. Lane, 125 Wn.2d 825, 831, 889 P.2d 929 (1995) (quoting State v. Tharp, 27 Wn. App. 198, 204, 616 P.2d 693 (1980)).
State v. Brown, 132 Wn.2d 529, 571, 940 P.2d 546 (1997).
In State v. Brown, the court admitted testimony of a woman who had been raped by the defendant two days after and in a different state from the crimes for which he was being tried. The court reasoned that the rape was linked to his crimes in Washington in significant ways and therefore admissible under the res gestae exception. The court noted that he sexually assaulted both women in a similar manner, he forced both women to write checks from their accounts, and he threatened both women into submission with the same weapon. The court also commented that "the jury was entitled to know about the events in [California] . . . to have a more complete picture of the circumstances surrounding. . . ." the death of his victim in Washington.
132 Wn.2d 529, 940 P.2d 546 (1997).
Brown, 132 Wn.2d at 575.
Brown, 132 Wn.2d at 575-76.
Brown, 132 Wn.2d at 575.
Brown, 132 Wn.2d at 575.
Unlike the evidence admitted in Brown, Bass's admission that he had used drugs in the past was not necessary to complete the picture for the jury. The State argues that Bass's admission is necessary to understand the officer's investigation and to assess the credibility of Bass's story. The State emphasizes that Bass denied knowledge of the drugs and stated to the police at the time of the stop that the drugs must have belonged to another person, a woman named Amber who had been in the car earlier in the day. But Bass's admission was not necessary to understand the officer's investigation. Evidence of Bass's previous drug use did nothing to inform the jury about his credibility in denying possession of the drugs found in the car. The only relevance of his prior drug use was as propensity evidence.
Determining that the evidence was not admissible does not end our analysis. We must next consider whether the error was prejudicial or merely harmless error. The "error is not prejudicial unless, within reasonable probabilities, had the error not occurred, the outcome of the trial would have been materially affected."
State v. Robtoy, 98 Wn.2d 30, 44, 653 P.2d 284 (1982).
Robtoy, 98 Wn.2d at 44.
The State argues that even if the court committed error by admitting evidence of prior drug use, that error did not materially affect the outcome of the trial. The State argues that the testimony of the officers presented enough evidence that, in combination with the incredible testimony of the defendant, even without the evidence of prior drug use, the jury would have found Bass guilty.
The State correctly asserts that Bass essentially conceded possession and instead pinned his hopes on his unwitting possession defense. The State is also correct that Bass's performance on the stand likely did not encourage the jury to trust his story. Bass was argumentative and made several odd statements. For example, he testified that the first officer questioned him for "eight minutes and 23 seconds." He then stated that the other officer talked to him for "[p]robably about one minute, two seconds." At times, his testimony strayed into the incredible. For example, he accused Officer Johnson of owning the cocaine and of being under the influence of cocaine at the time of the arrest. He also made inconsistent statements such as following up his accusation of Officer Johnson with the statement that "I don't know who it belonged to, to tell you the truth." The defense tried to rehabilitate his testimony during closing argument, explaining that Bass was upset about how he was handled at the time of the arrest. But the damage to Bass's credibility was done.
Furthermore, the testimony of the officers was clear and consistent. The defense pointed out one or two inconsistencies between the two officers' testimony but none of those differences related to any material issues. Officer Johnson testified that he saw Bass slowly reach down into the space between his passenger seat and the door in what looked like an effort to conceal something. When the officer checked the space where Bass had been reaching, he found a small piece of plastic tied with a knot that contained a substance later identified as cocaine. There is little doubt that the officers were more credible than Bass.
Bass points to the fact that neither officer saw the cocaine in Bass's hands. Orne took approximately a minute and a half to move the car out of the intersection, and Bass argues that if he were trying to hide the cocaine, he would have used that time to move the cocaine out of sight. He also notes that Orne admitted owning the marijuana pipe found in the glove compartment of the car, and suggests that the cocaine also belonged to her. The officer also testified that food wrappers and some other garbage were in the car making it more believable that a bindle of cocaine could be at Bass's feet without him realizing it was there.
Because the evidence of Bass's guilt is not overwhelming, despite his odd testimony on the stand, we conclude that within reasonable probabilities, had the error not occurred, the outcome of the trial could have been materially affected and thus, the error was prejudicial. Without the evidence of prior drug use, and given the evidence that the car had garbage strewn on the floor, that the owner of the car had a marijuana pipe in her glove compartment, and the lack of testimony that anyone saw Bass holding the cocaine, the jury could have decided that Bass had met his burden in proving by a preponderance of evidence that he unwittingly possessed the drugs. Therefore, we reverse Bass's conviction.
City of Kennewick v. Day, 142 Wn.2d 1, 11, 11 P.3d 304 (2000).
Because we reverse based on his evidentiary argument, we do not address Bass's arguments for prosecuting attorney misconduct or cumulative error.
REVERSED.
BAKER, SCHINDLER and GROSSE, JJ., Concur.