Opinion
No. 52063-6-I.
Filed: February 2, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 02-1-10036-4. Judgment or order under review. Date filed: 02/24/2003.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Randy Lee Brown (Appearing Pro Se), Id# 4792619, Snake River Corr. Center, 777 Stanton Blvd., Ontario, OR 97914.
Maureen Marie Cyr, Washington Appellate Project, 1305 4th Ave Ste 802, Seattle, WA 98101-2402.
Counsel for Respondent(s), E Bradford Bales, King Co Pros Aty Ofc, 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.
When police officers observed appellant Randy Brown driving a stolen car, he fled and attempted to conceal himself before his arrest. On appeal, he contends that the trial court erred in admitting evidence of the circumstances surrounding his arrest. We disagree and affirm his conviction for first degree possession of stolen property.
In March 2002, Lori Garcia, an Oregon resident, purchased a 1998 Pontiac Grand Am for $11,200. At about 11:00 a.m. on October 19, 2002, appellant Randy Brown, Garcia's ex-boyfriend, appeared at the door of Garcia's apartment in Springfield, Oregon, and asked to use the shower. Garcia did not open the door and told Brown to go away.
Later that same day, Garcia drove to Bend, Oregon, and returned to her apartment at about 10:30 p.m. A short time later, Garcia went out to the parking lot to retrieve something from her car and discovered that the car had been stolen. After reporting the theft to the police, Garcia noticed that one of the windows in her apartment was broken and that a spare set of car keys was missing from her bedroom. Garcia testified that she had never lived with Brown and had never given him permission to use her car. Brown was arrested in Kent, Washington, on October 23, 2002, after he was observed driving the stolen Pontiac. He was eventually charged with one count of first degree possession of stolen property.
Prior to trial, Brown moved to exclude evidence of most of the circumstances leading up to his arrest, including evidence that he fled from officers after being spotted in the stolen car and that he then attempted to conceal himself. Defense counsel informed the court that the Kent police were particularly concerned about Brown because he had a prior conviction for attempted murder of a police officer and outstanding arrest warrants for unrelated robbery and assault charges in Oregon. Brown argued that evidence of the extensive `manhunt' was more prejudicial than probative because it would unfairly suggest to the jury that he was a particularly dangerous individual.
The trial court denied `the thrust' of Brown's motion, ruling that the probative value of the evidence outweighed any unfair prejudice and that the circumstances surrounding Brown's arrest were admissible to establish `identity, possession, [and] consciousness of guilt.' But the court excluded evidence of `helicopters or news coverage, or any reference to the police doing anything unusual because of this apparent issue in Mr. Brown's past that — that there was an offense of attempted murder of a police officer.' Report of Proceedings (2/3/03), at 15.
At trial, Kent Police Officer Dan Butenschoen testified that on October 23, 2002, Kent police officers were advised to watch out for a suspect driving a stolen Pontiac Grand Am with Oregon license plates and a broken windshield. Later in the day, Officer Butenschoen saw the suspect vehicle and identified Brown as the sole occupant. After the Pontiac drove through an intersection at high speed, Officer Butenschoen followed the car into a nearby church parking lot. While Officer Butenschoen waited for backup units, a woman walked up and said that a strange man had just entered the church's pre-school area.
When asked whether arriving officers began to search for the suspect, Officer Butenschoen replied `absolutely . . . first of all, we evacuated the preschool.' Defense counsel's objection that the comment was nonresponsive was sustained. Officer Butenschoen then testified that when officers were unable to find the suspect, `we furthered our search with K-9 officers and Guardian One, which is the King County helicopter.' Officers were unable to find Brown at this time.
At the conclusion of Officer Butenschoen's testimony, defense counsel moved for a mistrial, arguing that the officer's reference to the use of a helicopter violated the trial court's pre-trial ruling. The court denied the motion, concluding that the passing reference to the helicopter was not unduly prejudicial.
During the evening of October 23, 2002, officers received a report that Brown might be hiding in the backyard of a relative's house. The house was located less than one block from the church parking lot where Brown had fled from the stolen Pontiac. When Brown failed to respond to an officer's command to come out of the backyard, a police dog found him lying on a stack of planks behind a shed. After a brief struggle, the officers were able to handcuff and arrest Brown.
The jury found Brown guilty as charged, and he received a standard-range sentence.
On appeal, Brown first contends that the trial court erred in admitting evidence of the circumstances surrounding his arrest. He argues that such evidence, including Brown's flight and attempt to conceal himself, was only marginally relevant to prove identity and that the potential prejudice outweighed any probative value. See ER 403.
We review the trial court's admission of evidence for an abuse of discretion. State v. Pirtle, 127 Wn.2d 628, 648, 904 P.2d 245 (1995). An abuse of discretion occurs when the trial court's ruling is manifestly unreasonable or is based on untenable grounds. State v. Perrett, 86 Wn. App. 312, 319, 936 P.2d 426 (1997).
Evidence of the defendant's flight is admissible if it creates `a reasonable and substantive inference that defendant's departure from the scene was an instinctive or impulsive reaction to a consciousness of guilt or was a deliberate effort to evade arrest and prosecution.' State v. Freeburg, 105 Wn. App. 492, 497, 20 P.3d 984 (2001) (quoting State v. Nichols, 5 Wn. App. 657, 660, 491 P.2d 677 (1971)). Evidence of resistance to arrest and concealment may also support a similar inference. State v. Freeburg, 105 Wn. App. at 498.
In this case, the evidence established that Brown fled immediately after a police officer observed him driving a stolen car with a broken windshield. When police officers later found Brown a short distance away, he was attempting to conceal himself behind a shed. Under the circumstances, the evidence supported a substantial inference of consciousness of guilt. See State v. Freeburg, 105 Wn. App. at 498. Moreover, the evidence of flight and concealment also tended to establish identity, possession, and knowledge, all elements that the State was required to prove in order to convict Brown of first degree possession of stolen property. Defense counsel expressly informed the trial court that Brown was not conceding any of the elements of the charged offense. Accordingly, the trial court did not abuse its discretion in determining that the probative value outweighed any prejudicial effect and admitting evidence of the circumstances of Brown's arrest.
Brown contends that any inference of consciousness of guilt of the charged crime in this case, i.e., possession of stolen property, was unreasonable because he had outstanding warrants on more serious charges of robbery and assault. But the fact that Brown may have had additional reasons for fleeing did not undermine the strength of the inference that he deliberately attempted to avoid arrest and prosecution for possessing the stolen car.
Brown next contends that the trial court erred in denying his motion for a mistrial after Officer Butenschoen referred to evacuating the pre-school and to the police helicopter. But the objection to the evacuation was sustained, and defense counsel did not request a curative instruction for either remark. Moreover, no evidence was presented to the jury about Brown's attempted murder conviction or the outstanding warrants. Nor did the State make any further reference to the evacuation or helicopter or suggest that there was anything `unusual' about the effort to find Brown. We therefore agree with the trial court that the single passing reference to the school evacuation and police helicopter had no possible effect on the outcome of the trial. Accordingly, the trial court did not abuse its discretion in denying Brown's motion for a mistrial. See State v. Greiff, 141 Wn.2d 910, 921, 10 P.3d 390 (2000).
Affirmed.