Opinion
No. 29507-5-II.
Filed: April 27, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Skamania County. Docket No: 01-1-00078-9. Judgment or order under review. Date filed: 10/17/2002. Judge signing: Hon. E. Thompson Reynolds.
Counsel for Appellant(s), Anthony James Lowe, Attorney at Law, 1010 Esther St, Vancouver, WA 98660-3028.
Counsel for Respondent(s), Randall Charles Krog, Skamania Co Prosecutor Office, PO Box 790, Stevenson, WA 98648-0790.
Melanie A. Garcia appeals her conviction of unlawful delivery of a controlled substance, methamphetamine, within 1000 feet of a school bus route stop. She asserts trial court error in relying on the res gestae rule to admit evidence that she was a drug dealer. Although we agree that it was error not to limit the admission of this evidence, the error was harmless. Thus, we affirm.
A violation of RCW 69.50.401(a)(1)(ii) and RCW 69.50.435(a)(3).
Facts
On May 3, 2001, Garcia sold methamphetamine to Timothy Baxter from the backroom of the North Bonneville Chevron Store. Both Garcia and Baxter were employees of the store but at the time of the sale, Baxter also was working as a confidential informant for Sergeant Buettner of the Skamania County Sheriff's Office. After Baxter left the store, he gave the methamphetamine to Buettner.
The State charged Garcia with one count of unlawful delivery of a controlled substance within 1000 feet of a school bus route stop. In an offer of proof, the State provided Baxter's testimony about his past purchases of methamphetamine from Garcia and Garcia's admissions to Chief Criminal Deputy Dave Brown that she had previously sold methamphetamine to friends.
The trial court ruled that the evidence about Garcia's past deliveries was admissible under ER 404(b) because it was part of the res gestae of the crime. The court reasoned:
I believe this falls under Rule 404(b), other crimes, wrongs, and acts. The rule is that 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 be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident.
It's always dangerous in cases like this to admit evidence of other crimes and wrongdoings, because of the possibility a jury may somehow be influenced by that evidence and somehow use that to show that even though they might have some reasonable doubt about the crime charged, that they're thinking, well, this is a bad person because they've done these other things, therefore they must have done the crime charged. That's the danger.
In this particular case, there's always that danger. But in this case, as I understand the offer of proof, is that the — Ms. Garcia is charged with selling drugs out of the Chevron in North Bonneville. The State had an undercover agent go in and buy drugs from her, report back to the police. And that's pretty much what the State's case is based upon.
Ms. Garcia then, after being advised of Miranda warnings, made a statement to the officers, and to the effect that she had sold drugs to her friends. And that's the statement that is being at issue here today.
I am going to admit the statement, for the reason that I believe it falls under the res gestae exception, which is, other misconduct is admissible if it's so connected in time, place, circumstances, or means employed that proof of such other misconduct is necessary for a complete description of the crime charged, or constitutes proof of the history of the crime charged.
There is a case, State v. McBride, which is 74 Wash. App. 460, which was a prosecution for a delivery of a controlled substance. The trial court allowed a police officer to testify he observed defendant make what appeared to be three drug sales before making the sale for which the defendant was arrested. The Appeals Court held that the testimony was relevant to show defendant had an accomplice, were working together, and it was important for the jury to see the whole sequence of events.
And I think that's the situation we have here, as far as the jury seeing the whole sequence of events, that this was not just an isolated matter, that, indeed this gives some credibility, I guess, to the State's case.
Then I have to weigh the — the other thing is, before I admit it, I have to weigh the probative value against the prejudicial effect. There is some prejudice here, but in this case, I do believe the probative value outweighs the prejudicial effect that it might have.
I therefore am going to deny the motion to suppress. The statement as made by Ms. Garcia will be admitted at the time of trial.
. . . .
As far as the prior sales with T.J. Baxter, I'm going to allow that also under my ruling that the res gestae exception, that he can testify that in the past he had bought from Ms. Garcia, if that's what his testimony's going to be. And I think that's relevant.
Again, I believe the probative value outweighs the prejudicial effect.
Report of Proceedings (RP) at 13-15, 18.
Following this ruling, Baxter testified at trial that he was 19 years old, that he had started using methamphetamine about two years earlier, and that he obtained the drugs for himself and five friends from Garcia when he worked with her at the Chevron Store. When the State asked: `Have you purchased methamphetamine from Ms. Garcia before?' Baxter responded: `Yes . . . a hundred or so [times], [most] of them were at the store.' RP at 110-111.
The State later asked Baxter: `[H]ave you ever purchased methamphetamine from Ms. Garcia in the back room before?' RP at 125. Baxter said he had, `a bunch [of times]. I don't know an exact number. Quite a few.' RP at 125. After Baxter explained that he told Garcia that he was buying the drugs for a friend, the State asked, `is that consistent with what you had done months prior when you used to purchase methamphetamine from Ms Garcia?' Baxter said, `Yes.' RP at 127.
Baxter also testified that he made only this one undercover buy because people in the area drug culture, including Garcia, knew that he had quit using the drug and they would suspect that he was working undercover. In addition, he feared that his involvement could lead him back into the drug culture.
Chief Criminal Deputy Brown testified and described his interview with Garcia and her written statement. He said that Garcia admitted that she had previously sold methamphetamine to friends from the Chevron Store, `that she did it just to make a few extra dollars, and that she was not a user.' RP 181.
Buettner testified that he had twice used an undercover informant to purchase methamphetamine from Baxter and, in April 2001, Baxter had agreed to work undercover in exchange for a positive recommendation to the prosecutor. Buettner also testified that although he was disappointed that Baxter made only the May 3 purchase, Buettner was encouraged that Baxter had taken positive steps in his life.
The jury rejected Garcia's defense that Baxter planted the methamphetamine and found Garcia guilty as charged.
Analysis
Garcia's sole claim on appeal is that the trial court erred in admitting Baxter's testimony about purchasing methamphetamine from Garcia over one hundred times and Brown's testimony as to her oral and written admissions that she was a drug dealer. She argues that this was prejudicial improper propensity evidence admitted in violation of ER 404(b).
The State responds that the evidence was admissible under ER 404(b) to show the context of Garcia's delivery to Baxter and to overcome the defense suggestion that Baxter had planted the drugs at the store and then later turned them over to Sgt. Buettner.
ER 404(b) governs the use of propensity evidence. It provides: 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.
When admitting evidence under ER 404(b), the trial court must identify the purpose of the evidence and determine that the evidence is logically relevant to that purpose and will not cause unfair prejudice that substantially outweighs its probative value. State v. Barragan, 102 Wn. App. 754, 758, 9 P.3d 942 (2000).
Evidence is not relevant merely because it shows the defendant's propensity to engage in criminal conduct. State v. Saltarelli, 98 Wn.2d 358, 362, 655 P.2d 697 (1982). `In no case, however, regardless of its relevance or probativeness, may the evidence be admitted to prove the character of the accused in order to show that he acted in conformity therewith.' Saltarelli, 98 Wn.2d at 362.
The trial court here admitted the evidence under the res gestae exception to ER 404(b). The res gestae exception allows a trial court to admit evidence of other bad acts that is helpful `[t]o complete the story of the crime on trial by proving its immediate context of happenings near in time and place.' State v. Tharp, 27 Wn. App. 198, 204, 616 P.2d 693 (1980) (quoting Edward W. Cleary, McCormick's Evidence sec. 190, at 448 (2d ed. 1972)); see State v. Powell, 126 Wn.2d 244, 263, 893 P.2d 615 (1995) (certain events and statements in the last two days of the victim's life were relevant to establish that hostilities between the victim and the defendant continued until the victim's death.); see also State v. Lane, 125 Wn.2d 825, 832, 889 P.2d 929 (1995) (armed robbery 30 hours before murder was part of murder's `res gestae'); State v. Thompson, 47 Wn. App. 1, 11-12, 733 P.2d 584 (1987).
The Thompson Court approved the use of the res gestae exception in a murder-assault trial. There the court had admitted evidence that the defendant was seen brandishing a gun and yelling, `I'm going to kill the bastard[,]' and had pointed a gun at two witnesses after they shouted at him from their car. Thompson, 47 Wn. App. at 4. The Thompson Court noted that the conduct took place in the immediate time frame of the assault and murder and that the evidence refuted Thompson's claim of self defense by showing a continuing course of provocative conduct. Thompson, 47 Wn. App. at 12. Here, the State and the trial court relied on State v. McBride, which applied the res gestae exception to uphold the admission of evidence of three drug transactions that occurred before the charged sale. 74 Wn. App. 460, 464, 873 P.2d 589 (1994). The McBride Court explained that the earlier transactions showed the sequence of events, why the officer's attention was drawn to McBride, and that the defendant was working with his brother. 74 Wn. App. at 464.
Garcia argues that the holding of State v. Pogue, 104 Wn. App. 981, 988, 17 P.3d 1272 (2001), supports her position. The Pogue Court held that it was error to admit evidence of the defendant's past conviction for delivery of cocaine to rebut Pogue's claim that he did not know that the car he was driving contained cocaine.
The trial court in Pogue had reasoned that the defendant's assertion of unwitting possession made knowledge an issue and that the evidence demonstrated his knowledge of cocaine. Pogue, 104 Wn. App. at 985. But, as the Pogue Court explained, the defendant's prior possession had no tendency to show that he knew there was cocaine in his sister's car. The evidence's only relevance was to show that because the defendant had knowingly possessed cocaine in the past, it was more likely that he knowingly possessed it on the day of the charged incident, but this is a prohibited propensity use of evidence. 104 Wn. App. at 985-86.
Here, some evidence of the past relationship between Baxter and Garcia, including their drug transactions at the Chevron Store, was relevant `[t]o complete the story of the crime on trial by proving its immediate context of happenings near in time and place.' Tharp, 27 Wn. App. at 204. This evidence also helped show Garcia's motive in selling to Baxter — their friendship and to make a few dollars — and that there was an opportunity to purchase drugs in the back room, both of which support admission under ER 404(b). The evidence was essential to explain why Baxter contacted Garcia and to rebut Garcia's suggestion that the drugs Baxter gave Buettner were drugs that Baxter had earlier secreted in the backroom.
Nonetheless, given the danger that the jury will misuse evidence of past misconduct, we conclude that the trial court erred in not limiting this evidence to a few facts about the past relationship between Garcia and Baxter. It was not necessary to allow Baxter to state that he made over one hundred buys from Garcia or to admit all of Garcia's statements about her past sales. The State argues that any error was harmless. Garcia disputed this, pointing to the State's following use of the evidence in closing argument:
[PROSECUTING ATTORNEY]: I sell methamphetamine. I sell methamphetamine to make a few extra bucks. I sell methamphetamine to my friends. I sell methamphetamine out of the back room of the Chevron store. Those are the words spoken of Melanie Garcia.
I get methamphetamine for my friends. I get methamphetamine for my friends who come to the store. I'm a small person on the totem pole. Those are the words written by Melanie Garcia.
Those are the words that she uses to characterize herself and her activities. The words that she did not use is that she sold methamphetamine more than a hundred times to a high schooler, over a year period.
RP at 220-21. In determining whether this nonconstitutional evidentiary error was harmless, we ask whether within reasonable probabilities, the error likely affected the outcome. State v. Leuluaialii, 118 Wn.App. 780, ___ P.2d ___ (2003). Here, given the overwhelming evidence of Garcia's criminal conduct, we hold that the error was harmless.
A highly experienced sergeant conducted a strictly controlled undercover purchase using an undercover buyer who was motivated by the threat of a lengthy jail sentence to cooperate. Buettner thoroughly searched Baxter and his car before and after the transaction. The only factual issue was whether Baxter had planted the cocaine in the back room of the Chevron or whether he obtained it from Garcia.
The untainted testimony was that Garcia and Baxter worked together and had been friends. There was no evidence suggesting that Baxter had a motive to plant the drugs. See State v. Jackson, 102 Wn.2d 689, 695, 689 P.2d 76 (1984) (harmless error); see also State v. Halstien, 122 Wn.2d 109, 127, 857 P.2d 270 (1993) (the erroneous admission of ER 404(b) evidence requires reversal if there is a reasonable probability that the error materially affected the trial outcome). Cf. State v. Saunders, 91 Wn. App. 575, 580-81, 958 P.2d 364 (1998) (admission of defendant's prior drug conviction was not harmless where the jury would have been more likely to believe the defendant's unwitting possession defense but for the evidence). Thus, the error was harmless.
We affirm.
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.
QUINN-BRINTNALL, C.J. and ARMSTRONG, J., concur.