Opinion
No. 36451-4-II.
November 12, 2008.
Appeal from a judgment of the Superior Court for Pierce County, No. 06-1-02177-2, Brian M. Tollefson, J., entered June 8, 2007.
Affirmed in part and reversed in part by unpublished opinion per Penoyar, A.C.J., concurred in by Armstrong and Hunt, JJ.
UNPUBLISHED OPINION.
Mark Allen Curtis appeals his convictions of unlawful possession of a controlled substance, methamphetamine, third degree driving with license suspended, and two counts of bail jumping. He claims that the trial court erred in excluding sobriety evidence and in instructing the jury on the affirmative defense of uncontrollable circumstances. Because the trial court improperly excluded evidence relevant to Curtis's unwitting possession defense, we reverse his conviction for unlawful possession of a controlled substance. We affirm in all other respects.
A violation of RCW 69.50.4013.
A violation of RCW 46.20.342(1).
Violations of RCW 9A.76.170(1) and RCW 9A.76.170(3)(c).
Facts
On Mother's Day, May 14, 2006, Pierce County Sheriff's Deputy Scott Mock was driving on 24th Street East in Edgewood when he noticed a white Pontiac coming toward him. He checked the license plate number in a database and learned that the plate was registered to a Ford Escort. When stopped, the driver had a paper copy of his driver's license, no paperwork for the Pontiac, and told Deputy Mock that he thought his license might be suspended.
Suspecting that the Pontiac might be a stolen vehicle, Deputy Mock checked the VIN numbers and simultaneously verified that the driver was Curtis and that his driver's license was suspended. The Pontiac's VIN number was not listed as a stolen vehicle, but Curtis's driver's license was suspended in the third degree. Deputy Mock then arrested Curtis and searched the Pontiac incident to that arrest. He found an Altoids® tin under the driver's seat containing a white rocky substance and he found a baggie containing white powder and a glass smoking pipe in the center console. The pipe appeared to contain a white powdery residue as well as soot.
According to Deputy Mock, Curtis explained that the white substance and pipe was his, that it was a dietary supplement he purchased at a gas station, and that he smoked it in order to appear to be a drug user as he was staying with other drug users. He also admitted that he should not have been driving but explained that he wanted to see his mother on Mother's Day.
Based on these events, the State initially charged Curtis with unlawful possession of a controlled substance, cocaine, third degree driving while license suspended, and altering a serial number. By amended information, the State changed the controlled substance charge to allege methamphetamine instead of cocaine and added additional charges of bail jumping for Curtis's failure to appear for a May 30, 2006 hearing and unlawful use of drug paraphernalia. A second amended information added a second bail jumping charge for Curtis's failure to appear at an October 24, 2006 hearing. Finally, by a third amended information, the State dismissed the charge of altering a serial number.
In addition to Deputy Mock's testimony, the State presented evidence from Maureen Dudschus, a Washington State Crime Lab forensic scientist, that the substance in the baggie and on the pipe was methamphetamine. She also testified that it was not a diet supplement containing amphetamine. The State also presented evidence from Thomas Howe, a Pierce County Deputy Prosecutor, who testified regarding Curtis's failure to appear for scheduled hearings on May 30, 2006, and October 24, 2006. Finally, the State called Steve Hillyard, a Pierce County Sheriff's Office property officer, to testify about the chain of custody.
Megan Erickson testified on Curtis's behalf. She explained that Curtis had just obtained the Pontiac a few days before, and when he did, it was out in a field, did not run, and was filled with junk. She testified that Curtis had gotten the car running and that she, Curtis, and another man named Paul, helped clean out the car that morning. At one point, she saw Paul pour a diet supplement into an Altoids® tin and light it on fire. She said that she and Curtis told him to throw it away.
Curtis then sought to introduce evidence that he had passed random urinalysis tests required for his job both at the time of the charged events and during the pretrial period. The trial court found the evidence irrelevant as the State had only charged Curtis with possession, not use, of methamphetamine. The trial court concluded, however, that Curtis could use the evidence to show that he was sober during the trial. Curtis elected not to present any testimony about his urinalysis tests.
Curtis testified that Deputy Mock's testimony was not accurate in several ways. He explained that he was on his way home from his mother's house when Deputy Mock stopped him and not on his way there. He denied telling Deputy Mock that he bought the diet supplement at a gas station and explained that he said it was something you could buy anywhere and he had seen it at the corner grocery store. Curtis also denied telling Deputy Mock that the powder was his or that he smoked it to fit in with his drug using friends. He denied knowing that the pipe, baggie, or tin were in the car when he was stopped.
Curtis also explained that he had just acquired the Pontiac three or four days earlier and that he had towed it from the field, got it running, and had repainted the outside. He also testified that Erickson and a man named Paul helped him clean out the car and that Paul had poured some of the dietary supplement in a tin, lit it, and crumbled it up. He did not know what Paul did with the tin.
As to the bail jumping charges, Curtis explained that he thought it was only May 29 instead of May 30 when his boss corrected him and so he arrived at the court after noon. He said that he immediately went to the Department of Assigned Counsel to get help quashing the bench warrant. As to the October 24, 2006 hearing he missed, Curtis said he mistakenly thought the hearing was on October 26, 2006, a date appearing on his scheduling order for a different proceeding, and got a quash order on October 25, 2006.
The State requested and the trial court adopted, over Curtis's objection, an instruction on the affirmative defense of uncontrollable circumstances. The State explained that because Curtis introduced evidence of why he failed to appear, it would be inappropriate not to instruct the jury that only uncontrollable circumstances will excuse a non-appearance. The trial court agreed without explanation and gave the instruction.
The jury convicted Curtis on all counts except for the charge that he used drug paraphernalia. The court imposed concurrent standard range sentences. Curtis appeals.
analysis
I. Sobriety Evidence
Curtis first argues that the trial court erred in not allowing him to present evidence that he had passed random urinalysis tests (UAs) about the time of his arrest and during the pretrial period. We review a decision excluding evidence for an abuse of discretion. State v. Guloy, 104 Wn.2d 412, 421, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020 (1986). A court abuses its discretion when it takes a position no reasonable person would adopt. State v. Demery, 144 Wn.2d 753, 758, 30 P.3d 1278 (2001).
Curtis relies on City of Kennewick v. Day, 142 Wn.2d 1, 11 P.3d 304 (2000), where our Supreme Court held that character evidence regarding a defendant's sobriety from alcohol and drugs may be admissible when a defendant claims that his possession is unwitting. There, police discovered a small amount of marijuana and a pipe in Day's truck when he was arrested for refusing to take a sobriety test. Day claimed that he had never seen the two items before and that he had just picked his car up from a repair shop. Kennewick, 142 Wn.2d at 3. At trial, the repair shop owner testified that Day's truck was at his shop for about four months until a couple of days before Day's arrest. Kennewick, 142 Wn.2d at 4. The shop owner also testified that one of the employees who worked on Day's vehicle had been fired for suspected drug use outside of work and that a customer had previously complained about finding drug paraphernalia in a car after it was picked up from his shop. Kennewick, 142 Wn.2d at 4. The trial court excluded testimony Day proffered from the shop owner about Day's reputation for sobriety.
Our Supreme Court reversed the lower court decision, holding:
When the defense of unwitting possession is raised, the defendant's knowledge is directly relevant to the defense of unwitting possession. Accordingly, the universe of relevant evidence expands. . . . For example, . . . if a defendant claims to have been unaware he or she possessed the substance itself (e.g., someone placed it in my car), the defendant's intent to possess the controlled substance is relevant.
Kennewick, 142 Wn.2d at 11-12 (citations omitted). The Court further explained:
Character evidence may assist a defendant in meeting his or her burden of proving by a preponderance of the evidence a lack of knowledge under the unwitting possession defense. For instance, if a defendant claims to have believed a bag of marijuana was oregano, evidence that the defendant has the reputation for not using drugs lends support to this contention. It is more likely that a defendant who does not use drugs (by reputation at least) would be unable to identify marijuana. Similarly, if a defendant claims to have been unaware of the presence of a controlled substance at all, the defendant's nonuse of drugs lends support to this claim. A person who does not use drugs (by reputation) is less likely to possess drugs. In this case, Day asserted the defense of unwitting possession, claiming he was unaware that the marijuana and marijuana pipe were inside his vehicle. His knowledge was thus at issue, and his reputation for sobriety from drugs and alcohol was a "pertinent" trait of character under ER 404(a)(1).
Kennewick, 142 Wn.2d at 12.
Our case is strikingly similar to Kenniwick. There, as here, the defendant claimed that someone else put the drugs in his car without his knowledge. There, as here, the defendant had just recently come to possess the vehicle. And there, as here, the trial court failed to analyze the proffered evidence in light of the defendant's unwitting possession defense, simply finding it inadmissible because it was not relevant to possession. Finally, as in Kennewick, the trial court had an untenable basis for excluding the evidence and, as such, abused its discretion.
Curiously, the State does not cite or address Kennewick. It simply responds that Curtis failed to properly preserve this issue for review. We disagree. After Curtis explained that he was a diesel technician for Mountain Pacific Rail, the following occurred at trial:
DEFENSE COUNSEL: Okay. And as part of your employment do they do —
PROSECUTOR: Objection. I'm not sure where he's going but I'd like to be heard outside the presence of the jury if he's going where I think he's going.
THE COURT: I'd like to hear the question so I can make a determination whether I need to excuse the jury or not.
DEFENSE COUNSEL: Mr. Curtis, as part of your employment do you have to submit to random urinalysis? Don't answer yet.
THE COURT: Do you have —
PROSECUTOR: Yes.
THE COURT: Do you want to be heard outside the presence of the jury?
PROSECUTOR: Yes.
THE COURT: All right.
. . . (Jury leaves the Courtroom). . . .
PROSECUTOR: Your Honor, I would object. I think that whether or not he has given urinalysis at his place of employment I believe that's irrelevant to this proceeding of whether or not he was in possession on this date. The State is not allowed to bring in BTC urinalysis or any kind of urinalysis of that type, and the State feels it should be excluded.
THE COURT: What's the relevance, Mr. Currie?
DEFENSE COUNSEL: Well, Your Honor, he's working right now, he's testifying on the stand. Evidence that first — well, number one, that he's — we suggest that he is sober while on the stand I think is relevant.
Number two, it is circumstantial evidence to suggest that he is not in fact — was not in fact using if he was giving UAs around the time that the incident occurred.
Now I don't intend or expect to be able to elicit the fact of any particular UA or the findings of any particular UA, but the fact that he was doing UAs around this time I think would certainly be evidence to suggest that in fact he was not using.
PROSECUTOR: He's — Your Honor, he's asking the jury to speculate that he's giving clean UAs.
DEFENSE COUNSEL: Well, I do in fact have clean UAs from around that period of time which I intend to admit, but he would be fired if he did give a dirty UA —
THE COURT: Okay. Well, you can cover the issue of sobriety, that's certainly a relevant issue. But whether he gives UAs or not is irrelevant to a possession charge.
Ready for the jury?
DEFENSE COUNSEL: Yep.
PROSECUTOR: And that's sobriety as of today?
THE COURT: Right now while he's on the witness stand.
3 Report of Proceedings (RP) at 245-47. This, in our view, was an adequate offer of proof.
The State also argues that the evidence was inadmissible character evidence under ER 404(a)(1) and ER 405(a). While character evidence may be used circumstantially to show that a person acted consistently with that character, it is not admissible for "the purpose of proving action in conformity therewith on a particular occasion." ER 404(a). Under certain circumstances, an accused may offer "[e]vidence of a pertinent trait of character." ER 404(a)(1). When an accused offers evidence of a pertinent character trait, ER 405(a) governs the allowable methods of proof. State v. Kelly, 102 Wn.2d 188, 194, 685 P.2d 564 (1984). ER 405(a) requires that proof of the character trait "may be made by testimony as to reputation."
The State thus reasons that Curtis's testimony about his employer requiring him to take UAs was not reputation evidence or evidence of a particular character trait. It reasons that this is evidence about specific past events and, as such, was inadmissible.
The Kenniwick court specifically held that this type of evidence pertains to reputation and is admissible to show that his claim of unwitting possession is more likely true because this evidence tends to show that he was not a user at the time of his arrest. In any case, the trial court did not consider this argument and as such we cannot review the exclusion of this evidence on this basis. The trial court never considered whether this evidence was relevant to Curtis's unwitting possession defense and thus it did not base its decision on tenable grounds.
The excluded evidence would have bolstered Curtis's claim that drugs must have been in the car when he obtained it three days earlier. The evidence would also have bolstered his claim that he never told Deputy Mock that it was a dietary supplement and that he smoked it to fit in with other drug users. We also note that proof that Curtis believed he was facing drug testing at work also tends to show that he had a motive to avoid drugs to maintain his employment. Because we believe there is a reasonable probability that the excluded evidence could have materially affected the trial outcome, we reverse the possession conviction and remand for a new trial. Kenniwick, 142 Wn.2d at 15.
II. Uncontrollable Circumstances Instruction
Curtis next argues that the trial court erred in giving instructions 17 and 18, which explain the affirmative defense to bail jumping. Curtis objected at trial:
DEFENSE COUNSEL: Your Honor, we're objecting to the inclusion of the affirmative defense of bail jumping in this case. I don't believe that the — I think the WPIC indicates that the affirmative defense is generally to be presented if there's been some evidence presented that would support such affirmative defense. I'm not sure that that was in fact there. And in fact what I think what it does is basically the inclusion of it can only at this point move — suggest to the jury a reason why they should — additional reasons why they should ignore the actual elements of the offense and whether the proof of why the elements existed by suggesting that there's not something more.
4 RP 279-280.
Although Curtis did not present evidence of uncontrollable circumstances that prevented him from appearing, he did present evidence about why he did not appear and his defense essentially asked the jury to excuse his absence. Based on this testimony, the State argued that the instructions were necessary to properly inform the jury as to what circumstances were legally sufficient to excuse Curtis from failing to appear. Without such instructions, the State argues, the jury may have erroneously believed that Curtis's forgetfulness and confusion as to his hearing dates constituted a legally sufficient excuse. See State v. Carver, 122 Wn. App. 300, 305, 93 P.3d 947 (2004) ("I forgot" is not a defense to bail jumping).
Juxtaposed against the State's right to argue its theory of the case, however, is the defendant's constitutional right to control his own defense. "[E]very competent defendant 'has a constitutional right to at least broadly control his own defense.'" State v. McSorley, 128 Wn. App. 598, 604, 116 P.3d 431 (2005) (quoting State v. Jones, 99 Wn.2d 735, 740, 664 P.2d 1216 (1983)). Thus, giving the instruction here over Curtis's objection infringed on Curtis's constitutional right to conduct his own defense. McSorley, 128 Wn. App. at 604 (discussing Jones, 99 Wn.2d 735, discussing Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975)).
In light of these competing interests, we assume error and look to see if it was nonetheless harmless. An instructional error is harmless if it appears beyond a reasonable doubt that the error did not contribute to the verdict. State v. Brown, 147 Wn.2d 330, 341, 58 P.3d 889 (2002) (citing Neder v. United States, 527 U.S. 1, 15, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999)), see also Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967).
Here the error is harmless because Curtis admitted that he failed to appear for both court dates after knowing that he was required to appear. The trial court instructed the jury that to convict Curtis of the crime of bail jumping, the State had to prove the following beyond a reasonable doubt:
(1) That on or about the 30 day of MAY, 2006, the defendant failed to appear before a court;
Instruction 20 is identical but substitutes "24 day of OCTOBER, 2006." CP at 76.
(2) That the defendant was charged with unlawful possession of a controlled substance;
(3) That the defendant had been released by court order or admitted to bail with knowledge of the requirement of a subsequent personal appearance before the court; and
(4) That the acts occurred in the State of Washington.
Clerk's Papers (CP) at 75.
Curtis's own testimony leaves no reasonable doubt that he committed these offenses. He admitted that he was not in court at 8:30 am on May 30, 2006, and that he did not appear at all on October 24, 2006. He testified that he recognized exhibit 9, a certified copy of the court order showing that he had a court date on May 30 at 8:30; he acknowledged that he had signed the bottom of this document and that he understood that he was to be in court at 8:30 in the morning. He testified that while he knew that he was to appear on May 30, 2006, on that day he was confused about the date and, when he realized his mistake and came to court, the courtrooms were closed for the lunch break. He testified that he recognized exhibit 14, a certified copy of the court order showing that he had a court date on October 24 at 8:30 am; he acknowledged that he had signed the bottom of this document and that he understood that he was to be there at 8:30 in the morning.
The State also admitted a certified copy of the information charging Curtis with unlawful possession of a controlled substance and with driving with license suspended and other court documents showing that the court set bail at $10,000. Curtis admitted being on bail and testified that he was at work both days when he should have been in court.
Even without the affirmative defense instructions, there is no reasonable doubt that the jury would have convicted Curtis of both counts of bail jumping. The error was harmless.
III. Statement of Additional Grounds
In his pro se statement of additional grounds (SAG), Curtis argues that (1) he was not treated fairly, (2) there was insufficient evidence to support the convictions, (3) the court improperly instructed the jury, (4) his foreman was not allowed to testify, (5) his car was not a wreck but in perfect condition, (6) the officer gave a false reason for stopping him, (7) the forensic scientist tampered with the evidence, and (8) the testifying prosecutor mistakenly gave the wrong date for the October hearing.
To the extent these claims rely on evidence outside the record, we cannot consider them. See State v. McFarland, 127 Wn.2d 322, 338 n. 5, 899 P.2d 1251 (1995) ("a personal restraint petition is the appropriate means of having the reviewing court consider matters outside the record"). Thus we address only issues (2), (3), (7), and (8).
As to (2), as a reviewing court, we ask whether, after viewing the evidence in a light most favorable to the State, any rational trier of fact could have found the essential elements of the charged crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980). Here, the evidence as set out above amply shows that Curtis constructively possessed methamphetamine. It also amply shows that Curtis failed to appear when he was required to do so. Finally, it shows that he was driving his car with a suspended driver's license.
As to (3), Curtis does not explain which instructions were improper and thus we cannot address his claim. If he is referring to the affirmative defense instructions, we discussed that above and found the error harmless. RAP 10.10(c) (defendant must inform court of nature and occurrence of alleged error).
As to (7), nothing in the record supports his claim that the forensic scientist tampered with the evidence. Instead, the testimony illustrates that she followed proper scientific procedures in analyzing the chemical composition of the substances tested.
As to (8), the deputy prosecutor testified that exhibit 14 was an order setting an omnibus hearing for October 24, 2006. He also testified that it moved the trial date from October 26 to November 28. The only confusion apparent from the record is when the State asked the deputy prosecutor testifying: "An omnibus hearing on October 24 and then a trial date of — sorry, I missed it." The witness responded, "November 28th, 2006." 3 RP at 175. The record does not support Curtis's claim. RAP 10.10(c).
We reverse Curtis's drug conviction and affirm the driving and bail jumping convictions.
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.
ARMSTRONG and HUNT, JJ., concur.