Opinion
No. 27044-1-III.
May 5, 2009.
Appeal from a judgment of the Superior Court for Spokane County, No. 07-1-00120-5, Kathleen M. O'Connor, J., entered April 10, 2008.
Affirmed in part and remanded by unpublished opinion per Kulik, J., concurred in by Schultheis, C.J., and Brown, J.
UNPUBLISHED OPINION
On April 10, 2008, Carmon Deerheim was convicted of two counts of delivery of a controlled substance. Ms. Deerheim appeals her convictions, alleging that the court abused its discretion by overruling an objection to inadmissible hearsay, and that the court imposed a manifestly unreasonable condition of community custody. The State concedes that the term of community custody is manifestly unreasonable. We affirm the convictions and remand for resentencing on the community custody.
FACTS
Timberley Thompson worked as a confidential informant for the Spokane Police Department. On June 23 and July 6, 2005, Mr. Thompson stated that after walking to 543 East Queen Street in Spokane, Washington, he entered the residence and purchased crack cocaine from Ms. Deerheim. Ms. Deerheim lived at the 543 East Queen Street residence.
On June 23, law enforcement watched Ms. Deerheim's residence until she arrived by car. They watched Ms. Deerheim as she walked into the residence. A check of the registration of the car confirmed that it belonged to Ms. Deerheim. Law enforcement drove Mr. Thompson to a site near Ms. Deerheim's residence and watched Mr. Thompson as he walked to the residence, entered, and then exited the residence a few minutes later.
On July 6, law enforcement again watched Ms. Deerheim's residence, while other officers drove Mr. Thompson to a drop site. Law enforcement once again watched Mr. Thompson as he walked to Ms. Deerheim's residence, went inside, and came out of the residence a few minutes later. While the officers watched the residence, they were unable to see who sold Mr. Thompson the controlled substances.
Mr. Thompson was strip-searched before and after each controlled purchase. Before Mr. Thompson entered Ms. Deerheim's residence, the strip searches revealed that he had no controlled substances on his person. Police officers then gave Mr. Thompson money with which to make controlled buys. After exiting Ms. Deerheim's residence, strip searches revealed that Mr. Thompson was in possession of crack cocaine, and a smaller amount of money than that which the officers originally provided to him.
Detective Kevin Langford searched, and later drove, Mr. Thompson to his designated drop site on June 23. During Detective Langford's direct examination, he testified as follows:
Q. What did [Mr. Thompson] do after he got out of the car?
A. While he was in the car, he had made phone contact with Ms. Deerheim and —
MR. ROSSI: Your Honor, I'm going to object. First of all it's unresponsive, secondly there's not a foundation for the knowledge.
THE COURT: Objection overruled, Counsel. You may proceed.
THE WITNESS: Mr. Thompson advised he was talking with Ms. Deerheim —
MR. ROSSI: Objection; hearsay.
MS. BRADY: It's not a statement.
THE COURT: Objection overruled.
THE WITNESS: And Ms. Deerheim advised she'd be back to the residence in 20 minutes. We waited at Northtown Mall for approximately 20 minutes until we saw Ms. — a vehicle arrive at Ms. Deerheim's residence.
BY MS. BRADY:
Q. Okay. And then what happened? Report of Proceedings (RP) at 61-62.
Ms. Deerheim stated that she did not sell any controlled substances to Mr. Thompson. Ms. Deerheim was ultimately convicted of both counts of delivery of a controlled substance. This appeal followed.
ANALYSIS
Ms. Deerheim contends that the trial court erred by overruling her evidentiary objections. She maintains that the testimony of Detective Langford constituted inadmissible hearsay. Hearsay is an out of court statement, offered to prove the truth of the matter asserted. ER 801(c). Hearsay is generally inadmissible, unless an exception applies. ER 802.
"The decision to admit evidence lies within the sound discretion of the trial court and should not be overturned on appeal absent a manifest abuse of discretion." State v. Bourgeois, 133 Wn.2d 389, 399, 945 P.2d 1120 (1997). An error in admitting evidence will not result in a reversal unless prejudice results. Brown v. Spokane County Fire Prot. Dist. No. 1, 100 Wn.2d 188, 196, 668 P.2d 571 (1983). "[E]rror is not prejudicial unless, within reasonable probabilities, the outcome of the trial would have been materially affected had the error not occurred." State v. Tharp, 96 Wn.2d 591, 599, 637 P.2d 961 (1981). Error in admitting evidence will be considered harmless if "the evidence is of minor significance in reference to the overall, overwhelming evidence as a whole." Bourgeois, 133 Wn.2d at 403.
Generally, an error raised for the first time on appeal will not be reviewed. State v. Kirkman, 159 Wn.2d 918, 926, 155 P.3d 125 (2007). Notwithstanding this general preclusion, RAP 2.5(a) allows a party to raise claims for the first time on appeal when the error is a "manifest error affecting a constitutional right." However, this exception is a narrow one. Kirkman, 159 Wn.2d at 934 (quoting State v. Scott, 110 Wn.2d 682, 687, 757 P.2d 492 (1988)).
"A 'manifest' error is an error that is 'unmistakable, evident or indisputable.'" State v. Nguyen, 165 Wn.2d 428, 433, 197 P.3d 673 (2008) (quoting State v. Lynn, 67 Wn. App. 339, 345, 835 P.2d 251 (1992)). For a manifest error to affect a constitutional right, it must have an impact, impinge upon, or make a difference in the court's determination. Lynn, 67 Wn. App. at 345. Essential to the determination of whether an alleged error is manifest "is a plausible showing by the defendant that the asserted error had practical and identifiable consequences" at the trial level. Id.
Detective Langford's first statement for which error is assigned states: "While he was in the car, he had made phone contact with Ms. Deerheim." RP at 61-62. When this statement was uttered, Ms. Deerheim objected on the ground that the statement was unresponsive and lacked foundation. On appeal, Ms. Deerheim claims the error committed by the trial court is based upon hearsay principles. However, a hearsay objection was not raised at the trial court level, and an objection on grounds of "foundation" is insufficient to preserve a hearsay objection. State v. Smith, 155 Wn.2d 496, 501, 120 P.3d 559 (2005). Therefore, the assignment of error as to whether the first statement constitutes inadmissible hearsay was not properly preserved for review.
Even if this statement is considered as a possible confrontation clause violation, under RAP 2.5 the statement does not manifestly affect a constitutional right as there is no showing that such an error had practical and identifiable consequences at Ms. Deerheim's trial. There was ample evidence supporting a determination of guilt, regardless of whether there was telephone contact with Ms. Deerheim.
Mr. Thompson stated that he purchased the controlled substances from Ms. Deerheim. Officers witnessed Ms. Deerheim entering the residence where the controlled buys occurred, and Ms. Deerheim admitted that she lived at the address where the controlled buys occurred. Mr. Thompson was strip-searched both before and after leaving the residence, and the substance Mr. Thompson gathered during his few minutes in the residence tested positive for crack cocaine. Furthermore, knowledge of the telephone call had already been admitted through the testimony of Mr. Thompson, and substantiated by Detective Langford when he testified that Ms. Deerheim returned to her residence approximately 20 minutes after the telephone call.
Ms. Deerheim also assigns error to the following statements by Detective Langford: "Mr. Thompson advised he was talking with Ms. Deerheim" and "Ms. Deerheim advised she'd be back to the residence in 20 minutes." RP at 62. Ms. Deerheim objected on hearsay grounds to the first statement but not to the second. The court overruled the objection.
Even if these statements were hearsay, however, the error is harmless. As the above overview of the evidence illustrates, the admission of the statements did not affect the ultimate outcome of the trial. Knowledge of Mr. Thompson's telephone conversations with Ms. Deerheim was previously provided by the testimony of Mr. Thompson. Detective Langford testified, without objection, that he saw Ms. Deerheim enter the residence and remain inside until Mr. Thompson arrived. Likewise, Mr. Thompson previously stated that he had spoken to Ms. Deerheim on the telephone, and made plans to meet her at the Queen Street residence.
Even if properly objected to, this testimony would not meet the narrow exception of RAP 2.5(a) as it is not reasonably probable that the statements had practical and identifiable consequences at the first trial and, therefore, the alleged error did not manifestly affect a constitutional right.
Finally, Ms. Deerheim contends the court imposed a manifestly unreasonable condition of community custody. The State concedes that compliance with these conditions is impossible. We agree. The terms of community custody imposed require Ms. Deerheim to remain within, and outside of, the same locations at the same time.
We affirm the convictions and remand the sentence for clarification as to the terms of community custody.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
BROWN, J. and SCHULTHEIS, C.J. concur.