Opinion
No. 36848-0-II.
May 12, 2009.
Appeal from a judgment of the Superior Court for Clark County, No. 07-1-00616-8, Robert A. Lewis, J., entered October 9, 2007.
Affirmed in part and remanded by unpublished opinion per Penoyar, A.C.J., concurred in by Bridge-water, J.; Quinn-Brintnall, J., dissenting in part.
UNPUBLISHED OPINION
A jury convicted Joseph Edington on two counts of delivery of a controlled substance. He argues that the trial court violated his right to present a defense of his choosing by prohibiting testimony of a witness. Further, he claims that a community custody provision in his judgment and sentence is unconstitutionally vague. We affirm the trial court's evidentiary rulings but remand for resentencing on the community custody issue.
FACTS
On April 9, 2007, the State charged Edington with four counts of delivery of a controlled substance. The State alleged that each of these four deliveries occurred within 1,000 feet of a school bus stop, in violation of RCW 69.50.435(1)(b) and RCW 9.94A.533(6).
At trial, the State offered the testimony of police informant Kristine Taskey. Taskey testified that she agreed to work as a police informant after her 2006 arrest for possession of illegal drugs. Taskey told the jury that she knew she was "in a lot of trouble" and that in exchange for a police officer putting in a "good word" for her in her drug case, Taskey agreed to "do some buys" involving Edington. 2B Report of Proceedings (RP) at 341-42. Ultimately, Taskey participated in four controlled drug buys with the police and Edington.
Taskey knew Edington prior to her involvement with police. She had known Edington for about two years as he was her sister-in-law's boyfriend.
Taskey testified that the procedure for each of the controlled buys was the same: (1) Taskey would meet with police, (2) police would search her car, (3) police would strip search her, (4) Taskey would make a phone call to Edington in police presence, (5) police would give Taskey forty dollars in marked bills to make the buy, (6) police would observe Taskey making the buy from Edington, (7) Taskey would give crack cocaine to police who would (8) strip search her and (9) search her car again.
Before cross examination, and outside the presence of the jury and Taskey, defense counsel raised the issue of bringing in a witness who would testify that several years earlier, Taskey concealed clean urine in a vial placed in her vagina, and used that urine to pass court ordered urinalysis tests. As an offer of proof, defense counsel noted that his witness was prepared to testify that she had seen a strange liquid-holding device at Taskey's residence and that when she asked Taskey about it she was told that its purpose was to "smuggle" clean urine. 2B RP at 381-82. This witness would also testify to seeing a bottle of what appeared to be urine at Taskey's house. Defense counsel noted that though this witness "was not present when [Taskey] actually inserted [the vial]" into her vagina, "[s]he observed the items, she observed the urine and she observed Ms. Taskey go into the bathroom, apparently to insert [the vial]." 2B RP at 383. Defense counsel argued that this testimony should be permitted to show that Taskey "[had] experience in successfully smuggling contraband past police using a body cavity. . . ." 2B RP at 387.
In response, the State argued that Edington's offer of proof was nothing more than speculation and further, that "in this instance" there was no evidence that "Ms. Taskey used her body or orifices . . . to store any controlled substance." 2B RP at 384. Further, the State noted, the way the narcotics were packaged would make it virtually impossible to store the items in the matter described in defense's offer of proof. The trial court agreed with the State. In its ruling, the trial court said:
All right. I've had the opportunity to hear both counsel extensively on the issue. My understanding originally was that the testimony was going to be that the witness in this case, Ms. Taskey, had previously, according to eyewitnesses, concealed controlled substances in her body cavity and smuggled them.
That's not the testimony that I'm receiving. Instead, it's [the] testimony of a witness who says that on one occasion she observed paraphernalia for smuggling urine, a liquid substance, and that Ms. Taskey indicated that she had on previous occasions and on this occasion smuggled clean urine into an area. That has extremely slight probative value and it is outweighed by prejudicial effect, so I will not permit that testimony.
You've already elicited that body cavity searches weren't performed in this area. That's — and certainly you're not prohibited from arguing that there's a possibility that there was something in her body cavities, but that's all the speculation I'll allow with regard to that.
2B RP at 387-88.
Examination, direct and cross, continued. In addition to Taskey, the State offered the testimony of several police officers who participated in the controlled buys. The defense offered three character witnesses. Edington did not testify.
The jury convicted Edington on two of the counts, plus enhancements, but was hung on the remaining two. On the two hung-jury counts the trial court declared a mistrial. Instead of refiling those charges, the State dismissed the two counts. The trial court then sentenced Edington to the standard range sentence of 80 months plus 24 months for the enhancements for each count to run concurrently. The sentence also included 9 to 12 months of community custody and an order to not "possess or use any paraphernalia that can be used for the ingestion or processing of controlled substances or that can be used to facilitate the sale or transfer of controlled substances including scales, pagers, police scanners, and hand held electronic scheduling and data storage devices." Clerk's Papers at 133.
Edington now appeals.
ANALYSIS
I. Evidence of Prior Bad Act
Edington argues that the trial court violated his constitutional right to call witnesses and present a defense by excluding testimony that Taskey had previously hidden contraband on her body to deceive law enforcement. The State responds that the trial court ruled properly and did not abuse its discretion. We agree with the State and affirm the trial court's ruling.
We review a trial court's exclusion of evidence for an abuse of discretion. State v. Posey, 161 Wn.2d 638, 648, 167 P.3d 560 (2007). The trial court's balancing of the danger of prejudice against the probative value of the evidence is a matter within the trial court's discretion, which we will overturn "only if no reasonable person could take the view adopted by the trial court." Posey, 161 Wn.2d at 648 (citing State v. Hudlow, 99 Wn.2d 1, 17, 659 P.2d 514 (1983)).
Additionally, we review a trial court's relevancy determinations for manifest abuse of discretion. State v. Gregory, 158 Wn.2d 759, 835, 147 P.3d 1201 (2006). A trial court, not an appellate court, is in the best position to evaluate the dynamics of a jury trial and, therefore, the prejudicial effect and relevancy of evidence. Posey, 161 Wn.2d at 648.
Here the trial court did not abuse its discretion by prohibiting the testimony about prior alleged smuggling. It determined that probative value of permitting the testimony was outweighed by its prejudicial effect. The testimony was not overly probative for one main reason: the packaging of the contraband. As the State noted, the way in which the cocaine was delivered to the police from Taskey's controlled buy from Edington, would have made concealing in the way suggested by the defense nearly impossible. Rocks of cocaine were wrapped only in a thin piece of tissue paper with no other packaging. The State argued that Taskey could not have removed this packaging from her body cavity without some evidence of it being discovered, such as plastic wrap, some other container or the package itself would have been wet with moisture. Further, the testimony in this case from Taskey and the police officers indicates that the searches of Taskey were thorough enough and police monitoring of the controlled buys was strict enough that Taskey would not have had the requisite time or privacy to conceal the cocaine inside her person.
Additionally, the trial court determined the testimony to be overly prejudicial when balanced against probative value. ER 403. This is likely because the witness did not actually see Taskey conceal the contraband rather, she claims to have seen the vials and heard Taskey talk about what she did with them. Also, in light of the testimony regarding the thoroughness of the searches and the monitoring of the controlled buys, the trial court likely concluded that unfair prejudice would result if the court permitted information of this unrelated situation.
It is worth noting that the trial court permitted defense counsel to argue its theory that Taskey could have set up Edington by concealing the cocaine on her person. Defense counsel argued that theory quite effectively. The jury convicted Edington on only two of the four counts; counts one and three. For those two counts, the jury heard testimony that the police were able to observe Taskey's movements at all times. For the other two counts, the controlled buys occurred inside an apartment where the police could not observe Taskey and Edington. In one of those instances Taskey and others testified that Edington was not the only person present in the apartment. It appears the jury took defense counsel's point as they did not convict Edington of the charges where the police did not observe all of Taskey's movements. We affirm the trial court's ruling.
II. Community Custody Condition
Edington argues that the community custody condition the trial court imposed, prohibiting his possession of drug paraphernalia, is unconstitutionally vague. If a case can be decided on nonconstitutional grounds, however, we should decline to consider the constitutional issues. State v. Hirschfelder, 148 Wn. App. 328, 333, 199 P.3d 1017 (2009). As such, we do not address the unconstitutionality of the community custody condition because we can resolve the issue on a statutory basis.
RCW 9.94A.703(3)(f) allows courts to impose "crime related prohibitions" as part of community custody. In State v. Zimmer, we held that a prohibition on possession of a cellular phone and an "electronic data storage device" was not a crime related prohibition because there was no evidence in the record indicating that the defendant used such a device in committing the crime. 146 Wn. App. 405, 413-14, 190 P.3d 121 (2008). Erwin's judgment and sentence prohibits him from possessing things that "can be used" for drug related purposes, even if Erwin has no such intent. As in Zimmer, in this case it is hard to see how possession of things such as boxes, matches, knives or other random objects is crime related, unless the intent is to use these items for drug related purposes.
We hold that the drug paraphernalia provision in Edington's judgment and sentence is not a "crime-related prohibition" under RCW 9.94A.703. We therefore strike this provision and remand this matter for the trial court to consider imposing of a more narrowly worded and "crime related" provision. The trial court may consider referencing RCW 69.50.102(a) that defines "drug paraphernalia" and may also consider limiting the prohibition on possession to items that Edington actually intends to use for drug purposes.
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.
BRIDGEWATER, J., concur.
I concur with the majority's decision to affirm Joseph Edington's delivery of a controlled substance convictions. But for the reasons stated in State v. Valencia, 148 Wn. App. 302, 198 P.3d 1065 (2009), I respectfully dissent from that portion of the majority's decision holding that the drug paraphernalia provision of Edington's judgment and sentence is not a "crime related prohibition." "Forbidding a defendant from possessing drug paraphernalia, where the conviction was related to drugs or substance abuse, `is a "crime-related prohibition[]" authorized under RCW 9.94A.700(5)(e).'" Valencia, 148 Wn. App. at 323 (alteration in original) (quoting State v. Motter, 139 Wn. App. 797, 804, 162 P.3d 1190 (2007), review denied, 163 Wn.2d 1025 (2008)). In my opinion, community custody conditions such as the prohibition on possession of drug paraphernalia which do not infringe on a convict's constitutionally protected First Amendment rights are not ripe for review on direct appeal. Compare State v. Bahl, 164 Wn.2d 739, 752-53, 193 P.3d 678 (2008) (pre-enforcement challenge to possessing pornography ripe because First Amendment rights implicated as a matter of law, issue not fact specific) with Motter, 139 Wn. App. 797 (pre-enforcement challenge to prohibition of possessing drug paraphernalia not ripe for review because requires factual determination); Valencia, 148 Wn. App. at 317-20. Accordingly, because the trial court was sentencing Edington on two counts of delivering a controlled substance, I would decline to review Edington's challenge to the trial court's community custody condition prohibiting him from possessing drug paraphernalia as premature.