Opinion
No. 25383-0-III
Filed: October 9, 2008
ORDER GRANTING MOTION FOR RECONSIDERATION, AMENDING OPINION, AND DENYING MOTION TO PUBLISH
The court has considered appellant's motion for reconsideration and the answer thereto, the motion to publish, and the record and file herein, and is of the opinion the motion for reconsideration should be granted and the opinion shall be amended as follows:
On page 25 of the opinion after the first full paragraph which ends "that could have produced Ms. Getchell's symptoms," the following paragraphs shall be added:
Mr. Jordin argues that even if relevant, the admission of the evidence of drugs found at his home was unfairly prejudicial. We disagree. ER 403 allows the trial court to exclude relevant evidence where the evidence's probative value is substantially outweighed by the danger of unfair prejudice. The application of the rule by federal courts and the text of the rule itself demonstrate that "tremendous discretion is left with the trial court on the exclusion of relevant evidence." Lockwood v. AC S, Inc., 44 Wn. App. 330, 350, 722 P.2d 826 (1986) (citing 1 J. Weinstein M. Berger, Evidence ¶ 403[01]-[03] (1985)), aff'd, 109 Wn.2d 235, 744 P.2d 605 (1987). This broad discretion is also underscored in State v. Coe, 101 Wn.2d 772, 782, 684 P.2d 668 (1984). Under ER 403, unfair prejudice must substantially outweigh the probative value. Lockwood, 44 Wn. App. at 350. Here, there may have been prejudice but, on balance, it did not substantially outweigh the probative value of the evidence.
Moreover, even if evidence of the seized drugs was improperly admitted, "that error 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). In light of the evidence as a whole, any error here was harmless.
IT IS FURTHER ORDERED that the motion to publish this court's opinion of June 3, 2008, is hereby denied.
UNPUBLISHED OPINION
Kulik, A.C.J. — Arlin Jordin appeals his convictions for indecent liberties and second degree rape. Mr. Jordin contends the trial court erred by (1) admitting evidence of his past conduct to show a common plan or scheme, (2) concluding that he consented to the search of his apartment, and (3) admitting evidence of the drugs seized from his home. Mr. Jordin also asserts that the search warrant was constitutionally defective and that his due process rights were violated by the State's failure to preserve a portion of the victim's urine sample for testing by the defense. We conclude that Mr. Jordin's contentions are without merit and affirm his convictions for indecent liberties and second degree rape.
FACTS
The State charged Mr. Jordin with indecent liberties and second degree rape. The information alleged that he knowingly had sexual contact and intercourse with Charmaine Getchell while she "was incapable of consent by reason of being physically helpless or mentally incapacitated" in violation of RCW 9A.44.050(1)(B) and .100(1)(B). Clerk's Papers (CP) at 1.
Mr. Jordin owns and rents apartments in Spokane. Ms. Getchell testified that she accepted drinks from Mr. Jordin while visiting at his apartment. She remembered "kind of hitting a wall suddenly." Report of Proceedings (RP) (May 3, 2006) at 559. The next thing she knew, Mr. Jordin was pressing her back on the couch and kissing her. She said "no." RP (May 3, 2006) at 562. Then, she was naked in Mr. Jordin's bed and he was on top of her, having intercourse with her. Ms. Getchell believes that Mr. Jordin drugged her.
The next morning, Ms. Getchell recalled being awakened by Mr. Jordin at 7:00 am. She went home. Ms. Getchell's roommate, Mary Morton, stated that Ms. Getchell was pale, shaking, and vomiting. Ms. Morton encouraged Ms. Getchell to go to the hospital. After Ms. Getchell arrived at Holy Family Hospital, hospital personnel called police. Hospital personnel then collected a urine sample and did a quick screening test of the urine. The urine sample was then sent to two laboratories near the hospital where two other tests were performed. The initial screening test was positive for benzodiazepines, THC, and alcohol. When the second and third tests were negative, the first test proved to be a false positive for benzodiazepines. The additional tests identified alcohol and marijuana in Ms. Getchell's urine. Benzodiazepine was not found nor were flunitrazepam or GHB, two date rape drugs. After these three tests were performed, the urine sample was depleted.
Valium is a well known member of the benzodiazepine family.
Tetrahydrocannabinol (marijuana).
Rohypnol.
Gamma hydroxybutyrate.
Pictures taken at the hospital showed several bruises on Ms. Getchell's arm. Ms. Getchell had a headache, was nauseous, and repeatedly vomited. Mr. Jordin's semen was found on Ms. Getchell. Later, police searched Mr. Jordin's apartment.
At trial, a forensic chemist testified that the drugs found in Mr. Jordin's apartment included alprazolam, bupropione, cyclobenzaprine, temazepam, trazodone, and triazolam.
Three women testified about their similar experiences where they had a drink with Mr. Jordin, ending up naked with him, and having little or no memory of what had occurred.
Mr. Jordin testified that both he and Ms. Getchell were intoxicated but they knew what was going on. Mr. Jordin admitted having oral sexual contact and making an unsuccessful attempt at vaginal intercourse. Mr. Jordin also denied having sexual contact with any of the three other women who testified.
The jury convicted Mr. Jordin of one count of indecent liberties and one count of second degree rape. This appeal followed.
Motions
Mr. Jordin filed several pretrial motions including: a motion to dismiss, a motion to suppress Mr. Jordin's statements to police, and motions in limine to suppress the State's proposed evidence as to a common scheme or plan and to limit expert testimony as to what might have been discovered if the urine sample had been available for testing.
Motion to Dismiss.
Mr. Jordin filed a motion to dismiss based on the State's failure to preserve a portion of the urine sample for defense testing. The trial court denied the motion, concluding that while the sample was "`potentially useful' evidence," the State's inability to preserve a portion for further testing was not the result of bad faith. CP at 65.
Motion to Suppress — CrR 3.5.
Officers went to Mr. Jordin's apartment on December 3. The officers told Mr. Jordin they wanted to talk to him about allegations made by a woman who had been in Mr. Jordin's apartment before Thanksgiving. Mr. Jordin identified the woman as Charmaine Getchell. Mr. Jordin told the officers about his evening with Ms. Getchell.
Officers asked Mr. Jordin for permission to search for drugs. Mr. Jordin gave permission for the search. During the search, the officers told Mr. Jordin they had a search warrant to look for drugs. The officers found numerous prescription drugs. The officers arrested Mr. Jordin. In the patrol car following his arrest, Mr. Jordin stated: "`You must get a lot of calls from girls who drink too much and wake up intoxicated in the morning.'" RP at (May 3, 2006) at 662.
The trial court ruled that Mr. Jordin's statements before his arrest were admissible because they were not the product of custodial interrogation. The court also concluded that the statements made in the patrol car enroute to the jail were voluntary.
Motion to Suppress — CrR 3.6.
On November 25, Officer Mylissa Coleman obtained a warrant to search for drugs at Mr. Jordin's apartment. The warrant authorized the seizure of "Benzodiazapine [sic] based medications including but not limited to Diazapam, Alprazolam, Temazepam, and Rohypnol." Ex. D4. The warrant affidavit recounted Officer Coleman's conversation with medical staff in which the officer was told that the first laboratory test result showed that Ms. Getchell's urine tested positive for benzodiazepines.
Officer Coleman attempted service of the search warrant twice before successfully serving it on Mr. Jordan on December 3. When the warrant was served, Officer Coleman did not know about the second test result. The second test showed a negative result, indicating that benzodiazepines were not present. Officer Coleman did not tell the magistrate that the initial test was subject to false positive results and could be subjected to confirmation testing. Officer Coleman also did not tell the magistrate that the first test was positive for THC and alcohol. The trial court concluded that while the results of the second test should have been given to the magistrate, the failure to do so did not negate probable cause to search Mr. Jordin's apartment.
The trial court denied Mr. Jordin's motion to suppress the drugs found at his apartment. The court's findings and conclusions state that Mr. Jordin had given a valid consent to search, that there was no evidence of coercion, and the scope of the search was clear and not exceeded by the officers.
Motion — ER 404(b).
The State sought to introduce evidence under ER 404(b) to show Mr. Jordin was acting pursuant to a common scheme or plan. In a pretrial hearing, five women testified about incidents involving Mr. Jordin.
Laura Schmitz met Mr. Jordin in early 1998 when she responded to an advertisement for an apartment. Ms. Schmitz agreed to meet Mr. Jordin so that she could see the apartment. The apartment available was actually a part of Mr. Jordin's apartment.
After showing Ms. Schmitz the apartment, Mr. Jordin asked her to come with him while he did some errands. Mr. Jordin poured margaritas for them to drink while they rode in his Jaguar. When they returned to the apartment, Mr. Jordin told her that he had just been to Russia and that he wanted her to try an alcohol found there. The name on the bottle was Bombay Sapphire. Mr. Jordin made her a drink with straight alcohol on ice. Ms. Schmitz felt that she was getting drunk and this seemed odd to her given the amount of alcohol she had consumed. The next thing Ms. Schmitz remembered was being on the floor with her pants off while Mr. Jordin was on top of her having intercourse with her.
Tracy Alexander also met with Mr. Jordin about an apartment. After viewing some possibilities, they arrived back at his residence and had some wine. Ms. Alexander blacked out. When she awoke, she and Mr. Jordin were in his bed. Ms. Alexander believed Mr. Jordin had sexual intercourse with her during the black-out period. Ms. Alexander's mother is Mr. Jordin's first cousin. Ms. Alexander told Mr. Jordin she felt no attraction toward him. Ms. Alexander was sick and dizzy while driving home.
Lyra McGirk-MacDonald was a tenant of Mr. Jordin's. On a few occasions, Mr. Jordin asked if she would have drinks with him. She eventually agreed to meet with him because she hoped to find a bigger apartment and break her lease. Ms. McGirk-MacDonald met Mr. Jordin at his apartment. They had wine and margaritas. Then they drove to the store. Ms. McGirk-MacDonald felt the loss of her senses, and she felt that she was not in control of her body. When they returned from the store, Mr. Jordin got physical with Ms. McGirk-MacDonald. She did not want to participate, but was incapable of communicating this to him. Mr. Jordin assisted her into the bedroom and had sexual intercourse with her.
The court ruled that the testimony of Ms. Schmitz, Ms. Alexander, and Ms. McGirk-MacDonald was admissible to show a common scheme or plan. The court disallowed the testimony of two other women.
Trial.
At trial, Ms. Getchell testified about the events on November 23 and 24 at Mr. Jordin's apartment. Ms. Getchell met Mr. Jordin earlier in the month when she went to view one of Mr. Jordin's rentals. She was not interested in the rental, but she agreed to meet another day to look at another apartment. Mr. Jordin called Ms. Getchell on November 23, but by then Ms. Getchell had found a place to rent. Nevertheless, she accepted Mr. Jordin's invitation to come over to his apartment for drinks.
Mr. Jordin served Ms. Getchell the remainder of some margaritas that had been frozen since her previous visit. He offered her a shot of Jack Daniels and a bowl of soup. He poured some more Jack Daniels. Ms. Getchell drank some of this drink, and she remembers "kind of hitting a wall suddenly." RP (May 3, 2006) at 559. She remembers that one minute she was talking about her retirement plan, and the next minute Mr. Jordin was pressing her back on the couch and kissing her.
Ms. Getchell told Mr. Jordin, "no." RP (May 3, 2006) at 562. The next thing she knew, she was naked in Mr. Jordin's bed with him on top of her. The next morning, Mr. Jordin awakened Ms. Getchell and she went home. She had bruises on her arm, she had a headache, and she was vomiting.
Mary Morton, Ms. Getchell's roommate, testified that when Ms. Getchell returned home, she was speaking with a very slurred voice and her sentences kept drifting off. Ms. Morton also noticed that Ms. Getchell was pale and shaking, and that she walked slowly. Ms. Getchell became ill and vomited. Ms. Morton did not smell alcohol on Ms. Getchell and did not think that she was intoxicated. Ms. Morton urged Ms. Getchell to go to the hospital. Ms. Getchell went to the emergency room at Holy Family Hospital. The hospital called law enforcement.
Officer Coleman responded to the hospital's call to law enforcement. She noticed that Ms. Getchell's speech pattern was slow and random. The officer noticed that Ms. Getchell spoke in short sentences and appeared disoriented. In her affidavit for a search warrant, Officer Coleman stated that Ms. Getchell had a sore shoulder and that there were fresh bruises on the inside of Ms. Getchell's left arm near the armpit. Ms. Getchell also had soreness on the inside of her thigh and pelvic area and from the outer edge of both armpits toward the center of her chest.
The hospital conducted a rape examination on Ms. Getchell which tested positive for the presence of semen. Semen belonging to Mr. Jordin was recovered from Ms. Getchell's nylons. Jayne Anuan, a forensic scientist with the Washington State Crime Laboratory, identified several drugs seized from Mr. Jordin's apartment. These drugs were alprazolam, cyclobenzaprine, temazepam, and triazolam, which are all benzodiazepines. The laboratory results identifying the drugs were admitted without objection.
Officer Coleman also testified about her conversation with Mr. Jordin on December 3, 2004. Mr. Jordin told the officer about the three drinks he and Ms. Getchell had consumed. According to Mr. Jordin, Ms. Getchell "got very amorous" and suggested that they go to his bedroom. RP (May 3, 2006) at 649. Mr. Jordin described the couple's sexual activity, noting that he was too drunk and was having trouble sexually.
Officer Coleman was one of the officers who searched Mr. Jordin's apartment. During the search, Officer Coleman seized two and one-half bags of legal drugs. Numerous bottles of pills were identified. The benzodiazepines included: alprazolam, cyclobenzaprine, temazepam, and triazolam. One of Ms. Getchell's earrings was found in Mr. Jordin's bedroom. Officer Coleman then arrested Mr. Jordin. In the patrol car, Mr. Jordin told the officer that, "`[y]ou must get a lot of calls from girls who drink too much and wake up intoxicated in the morning.'" RP (May 6, 2006) at 662.
David Michaelsen of Pathology Associates Medical Laboratories (PAML) testified about the results of the second and third tests of Ms. Getchell's urine sample. Mr. Michaelsen is the general manager and scientific director of toxicology at PAML. He explained that the test done at Holy Family Hospital was a "quickie test" that had a subjective component because a person had to interpret or read the results. RP (May 9, 2006) at 1077. After performing this first test, Holy Family sent the urine sample to PAML and asked them to do a full screening and to follow up with additional testing for any positive results. The sample was sent to another lab, National Medical Services, to be tested for Rohypnol and GHB, two date rape drugs.
During its testing process, PAML obtained positive results for THC, and alcohol. The alcohol reading was the equivalent of a .14 reading from a blood test. However, urine is not an accurate way to determine intoxication because alcohol concentrates in the urine.
PAML performed a comprehensive drug survey. The urine was tested for numerous drugs including benzodiazepines. The drug survey is based on a limit and the result is negative if the presence of the drug is below the limit. The test produced no positives for benzodiazepines.
The benzodiazepines seized at Mr. Jordin's apartment included: alprazolam, cyclobenzaprine, temazepam, and triazolam. None of these drugs were present in the test performed by PAML on Ms. Getchell's urine. The test performed by National Medical Services was also negative.
Laura Schmitz, Tracy Alexander, and Lyra McGirk-MacDonald testified about their experiences with Mr. Jordin. Prior to testimony, the trial court read a limiting instruction regarding the testimony of each witness.
Mr. Jordin testified that two of the women who testified were intoxicated but were aware of what was going on. He described consensual sexual acts with Ms. Getchell. Specifically, there was oral sexual contact and an attempt at vaginal intercourse. Mr. Jordin denied having sexual contact with Ms. Alexander. He stated that he did not remember Ms. McGirk-MacDonald and Ms. Schmitz.
ANALYSIS
A. ER 404(b).
The trial court's decision to admit evidence of other crimes and bad acts under ER 404(b) is reviewed for an abuse of discretion. See State v. Dennison, 115 Wn.2d 609, 628, 801 P.2d 193 (1990). A trial court abuses its discretion when its decision is "manifestly unreasonable or based upon untenable grounds or reasons." State v. Brown, 132 Wn.2d 529, 572, 940 P.2d 546 (1997).
The trial court heard testimony from the three women who had previous experiences with Mr. Jordin. The court admitted the ER 404(b) evidence to show a common scheme or plan after conducting the four-step inquiry required by State v. Lough, 125 Wn.2d 847, 852, 889 P.2d 487 (1995). The court in Lough established that the prior acts must be: (1) proved by a preponderance of the evidence; (2) admitted for the purpose of proving a common scheme or plan; (3) relevant to prove an element of the crime or to rebut a defense; and (4) more probative than prejudicial. Id.
Mr. Jordin's primary argument is that the accounts given by Ms. Getchell and each of the other three witnesses were distinct rather than similar. He asserts that Ms. Getchell had no memory of the events that took place after she drank her third drink and Ms. McGirk-MacDonald was never unconscious and even left the apartment for a trip out to the store with Mr. Jordin. Further, he points out that Ms. McGirk-MacDonald did not stay the night and Ms. Alexander's memory was limited.
By focusing on these distinctions, Mr. Jordin ignores the similarities. Each of the women who testified at trial met Mr. Jordin at his apartment, each was served a drink that affected her in a way that was different than she had previously experienced, and each woman woke up to find she had an unwanted sexual encounter with Mr. Jordin. Based on these similarities, the trial court did not abuse its discretion by allowing the testimony of the three witnesses for the purpose of showing a common scheme or plan.
Significantly, the facts here are similar to the facts in Lough. Mr. Lough was a paramedic who met the victim when he was teaching a class. They made a date to watch a movie at her home. Mr. Lough mixed a drink for the victim that made her dizzy and disoriented. Id. at 849. Her memory became confused, but she recalled her sweatpants being pulled down and Mr. Lough's genitals in her hands and by her face. When she woke up, she was naked from the waist down, Mr. Lough was gone, and her underpants and pants were folded on the arm of a sofa. Id.
Mr. Lough attempted to exclude testimony of four other women, M., D., K., and P., who made similar, but not identical, allegations that he drugged and raped them.
The Lough court admitted the evidence of the other rapes, concluding that "a common plan or scheme may be established by evidence that the Defendant committed markedly similar acts of misconduct against similar victims under similar circumstances." Id. at 852.
Mr. Jordin contends that there was no common scheme or plan here because Ms. Getchell mistakenly believed she had been drugged when laboratory tests proved that she was not drugged. According to Mr. Jordin, the ER 404(b) evidence was admitted to establish a plan that was not present in his case.
Mr. Jordin's argument is unpersuasive. First, proof of a common scheme or plan does not require a showing that the facts in each situation are identical. Second, the negative laboratory tests for certain specified drugs do not negate that Ms. Getchell was drugged. Traces of a drug may have been too low to detect, or the tests may have been inaccurate. Third, even if the drug tests were correct, none of the other women were tested and they, too, believed they had been drugged.
Mr. Jordin also points out that ER 404(b) prohibits the admission of propensity evidence. He argues that the potential for prejudice related to the admission of ER 404(b) evidence is greatest in cases involving sex crimes. However, in Lough the court concluded, "the evidence at issue is repetitive and highly probative and the need for such proof is unusually great given that the victim's recall was diminished by the ingestion of the drugs. . . . The pattern of inducing such a state in other victims is relevant to proving that the victim here was induced to helplessness and then sexually assaulted." Lough, 125 Wn.2d at 859.
The trial court properly applied ER 404(b) and the four-step inquiry required by Lough when analyzing the evidence here. The testimony of Ms. McGirk-MacDonald, Ms. Alexander, and Ms. Schmitz was admissible to show a common scheme or plan.
B. Consent to Search.
Article I, section 7 of the Washington Constitution recognizes a person's right to privacy with no express limitations. State v. Ferrier, 136 Wn.2d 103, 110, 960 P.2d 927 (1998) (quoting State v. Young, 123 Wn.2d 173, 180, 867 P.2d 593 (1994)). Under article I, section 7, warrantless searches are per se unreasonable. State v. Khounvichai, 149 Wn.2d 557, 562, 69 P.3d 862 (2003). There are exceptions to the warrant requirement, and the State bears the burden of showing that the warrantless search falls within one of the exceptions. Id. Consent to search is one exception to the warrant requirement. State v. Holmes, 108 Wn. App. 511, 516, 31 P.3d 716 (2001).
Police went to Mr. Jordin's apartment to execute a search warrant. Mr. Jordin consented to their entry. Mr. Jordin contends the search of his apartment violated his right to privacy in his home. Mr. Jordin asserts that the officers should have given the Ferrier warnings when seeking entry to his apartment. See Ferrier, 136 Wn.2d at 118.
In Ferrier, the court considered the constitutional implications of a police procedure called "knock and talk." The procedure was used to gain entry to a home for the purpose of obtaining consent to conduct a warrantless search. Id. at 107. The Supreme Court concluded that, in those circumstances, the "knock and talk" violated Ms. Ferrier's state constitutional right to privacy in her home. Id. at 115. The court held that: "article I, section 7 is violated whenever the authorities fail to inform home dwellers of their right to refuse consent to a warrantless search." Id. at 118 (emphasis added).
Significantly, "the Ferrier requirement is limited to situations where police request entry into a home for the purpose of obtaining consent to conduct a warrantless search." Khounvichai, 149 Wn.2d at 563. Here, the police had Mr. Jordin's consent and a warrant. Hence, the Ferrier requirements are inapplicable.
C. Search Warrant.
The trial court found that Mr. Jordin validly consented to the search of his apartment before Officer Coleman presented the search warrant. Mr. Jordin disagrees with the trial court and also contends the search warrant was invalid.
We review a trial court's denial of a suppression motion by determining whether its findings of fact are supported by substantial evidence and we review conclusions of law de novo. State v. Levy, 156 Wn.2d 709, 733, 132 P.3d 1076 (2006). Credibility determinations are within the discretion of the trial court and we will not review such findings. In re Pers. Restraint of Davis, 152 Wn.2d 647, 682-83, 101 P.3d 1 (2004). Because Mr. Jordin does not challenge any of the trial court's findings of fact, they are verities on appeal. Unchallenged findings are verities on appeal. State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994).
An affidavit in support of a search warrant establishes probable cause if it sets forth sufficient facts to lead a reasonable person to believe that there is a probability that the defendant is involved in criminal activity and that evidence of that activity will likely be found at the place to be searched. State v. Maddox, 152 Wn.2d 499, 509, 98 P.3d 1199 (2004). Individual facts which, standing alone, would not support probable cause to issue a search warrant, may support probable cause when combined with other facts. State v. Vickers, 148 Wn.2d 91, 110-11, 59 P.3d 58 (2002). The issuing magistrate's determination of probable cause should be a practical, commonsense decision based on all of the circumstances set forth in the affidavit and any reasonable inferences that can be drawn therefrom. Maddox, 152 Wn.2d at 509.
Mr. Jordin contends the search warrant for his apartment lacked probable cause because Officer Coleman did not tell the magistrate that: (1) the first urine test had a high incidence of false positives; (2) the results of the second test were available; and (3) the first and second test also showed the presence of marijuana and alcohol in Ms. Getchell's urine.
Washington courts apply the test set forth in Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978) when reviewing information in an affidavit for a search warrant. State v. Garrison, 118 Wn.2d 870, 872, 827 P.2d 1388 (1992). If improper information is included in the affidavit, the information is excised and the affidavit is read to determine whether probable cause still exists. If information is improperly excluded from the affidavit, the information must be added and the affidavit must be read with the additional information to determine whether probable cause still exists. Id. at 872-73.
When the warrant was issued here, the magistrate was aware that Ms. Getchell had gone to Mr. Jordin's apartment and consumed alcohol that Mr. Jordin provided. Officer Coleman's affidavit stated that after the second drink Ms. Getchell "began to feel extremely disoriented, far out of proportion to her normal reaction for [the] amount of alcoholic beverage she had consumed." Ex. D4.
Officer Coleman's affidavit further stated that Ms. Getchell woke up naked in Mr. Jordin's bed; she was disoriented, confused, and nauseous. Ms. Getchell also had bruises on the inside of her left arm that were similar to bruises formed when a person is being grabbed by another person's hand. Ms. Getchell also had soreness from the outer edge of both armpits toward the center of her chest and on the outside of her thighs, pelvic area, and vagina. The affidavit continued that, in Officer Coleman's experience, people who are unconscious are often carried in a position with the carrier standing behind the victim and wrapping his or her arms around the victim's upper body and then locking his or her hands together. As a result of Officer Coleman's training, she believed Ms. Getchell's symptoms were similar to those experienced by people who are drugged.
In her affidavit, Officer Coleman also stated that when Ms. Getchell returned home, she vomited two or three times and had a bad headache. Blood work at the hospital returned positive for benzodiazepines. Officer Coleman stated that Rohypnol, the date rape drug of choice, is from the benzodiazepine class and produces a drunk-like state. When combined with alcohol, Rohypnol "produces symptoms including dis-inhibiting and amnesia." Ex. D4.
To review the magistrate's determination of probable cause and the denial of the motion to suppress, we must add the following omitted facts to the affidavit: (1) the first test was prone to false positives and a second more reliable test would be performed, and (2) the first test showed the presence of marijuana and alcohol in Ms. Getchell's urine. Mr. Jordin maintains that while Officer Coleman's affidavit stated that Ms. Getchell behaved in the same way as people who are drugged, this also might have been the result of her ingestion of marijuana and alcohol.
The addition of these facts to the affidavit does not require reversal of the magistrate's determination of probable cause. Officer Coleman informed the magistrate of sufficient facts to lead a reasonable person to believe that there was a probability that Mr. Jordin was involved in criminal activity at his home. The magistrate did not abuse his discretion by issuing the warrant.
Mr. Jordin also asserts that Officer Coleman should have informed the magistrate that the results of the second test were available. In Mr. Jordin's view, the magistrate would not have issued the warrant if he had known the second test had been completed. However, the trial court made a specific finding that Officer Coleman did not have any knowledge of the second test results. Mr. Jordin did not assign error to this finding. We conclude that the trial court did not err by denying the motion to suppress.
D. Execution of Warrant.
A delay in executing a warrant may render a probable cause determination stale. State v. Thomas, 121 Wn.2d 504, 513, 851 P.2d 673 (1993). In evaluating whether the facts underlying a search warrant are stale, we look at the totality of the circumstances. Maddox, 152 Wn.2d at 506. Common sense is the test for staleness. Id. at 505. "The information is not stale for purposes of probable cause if the facts and circumstances in the affidavit support a commonsense determination that there is continuing and contemporaneous possession of the property intended to be seized." Id. Significantly, CrR 2.3(c) requires that the search take place within a specified period not to exceed 10 days. However, "[t]he length of time between issuance and execution of the warrant is only one factor to consider along with other relevant circumstances, including the nature and scope of the suspected criminal activity." Maddox, 152 Wn.2d at 506.
Here, there was an eight-day delay between the issuance of the warrant on November 25, and the execution of the warrant on December 3. Mr. Jordin's assertion that the police had the results of the second test in their possession when the search was executed is not supported in the record. Officer Coleman testified that she picked up Ms. Getchell's records at Holy Family Hospital on December 3 and turned them over to a detective. Officer Coleman testified that she did not have any knowledge about the results of the second test when the warrant was served.
Moreover, as previously discussed, even if the police should have obtained the test results sooner, there was still probable cause to issue the search warrant. The court properly ruled that the delay in executing the search warrant did not render the probable cause determination stale.
E. Admission of Evidence of Drugs.
During the search of Mr. Jordin's apartment, the police seized the following pills: alprazolam, bupropione, cyclobenzaprine, temazepam, trazodone, and triazolam.
Other than the first screening test showing a false positive, Ms. Getchell's urine tests were negative, except for marijuana and alcohol. Mr. Jordin argued pretrial to restrict the State from introducing evidence concerning the drugs found during the search of his apartment. The trial court allowed testimony about certain drugs but prohibited evidence about other drugs based on relevance and materiality.
Mr. Jordin contends the seized drugs, and the testimony related to those drugs, were not relevant. He argues that the court erred by allowing the State to offer evidence of the seized drugs and their possible effects. According to Mr. Jordin, the scientific evidence proved that Ms. Getchell had not been drugged at Mr. Jordin's apartment because none of his drugs showed up in her urine. Mr. Jordin contends there is no nexus between the crime charged, and the seized drugs and their side effects. In Mr. Jordin's view, the State was allowed to circumvent the lack of any confirming drug test through the testimony of the three women about their experience with Mr. Jordin.
We review a trial court's evidentiary ruling for an abuse of discretion. State v. Quigg, 72 Wn. App. 828, 835, 866 P.2d 655 (1994). According to ER 401, evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Unless otherwise limited, all relevant evidence is admissible. ER 402.
Evidence is relevant if a logical nexus exists between the evidence and the fact to be established. State v. Peterson, 35 Wn. App. 481, 484, 667 P.2d 645 (1983). "[W]hether evidence actually plays a part in a crime is not the definition of relevant evidence." Quigg, 72 Wn. App. at 838. The threshold to admit relevant evidence is low, and even minimally relevant evidence is admissible. State v. Darden, 145 Wn.2d 612, 621, 41 P.3d 1189 (2002).
In State v. Burkins, 94 Wn. App. 677, 973 P.2d 15 (1999), Mr. Burkins was convicted of the first degree murder of Donna Anderson. Testimony of another woman, M.L., was allowed to show a common scheme and plan. M.L. alleged that Mr. Burkins had taken her to a secluded place, tied her hands, pinched her nipples, sexually assaulted her, and threatened to kill her if she disobeyed him. Id. at 683-84.
Mr. Burkins argued that a rope found at the murder site was not relevant because the State presented no evidence that the rope had been used on the murder victim. The State argued that Mr. Burkins obtained the rope to tie Ms. Anderson's hands and that the rope provided evidence of premeditation regardless of whether it was used. Id. at 693. The court found that the presence of the rope at the murder site supported the State's theory that Mr. Burkins intended to tie Ms. Anderson's hands just as he had tied M.L.'s hands. The court concluded that the trial court had not abused its discretion by determining that the rope was relevant evidence. Id.
Here, Ms. Getchell believed she had been drugged and had symptoms consistent with being drugged. The other victims also believed they were drugged. Ms. Getchell's test results identified the substances which were screened and the levels present. These tests were negative, except for marijuana and alcohol. However, a rational trier of fact could have inferred that Ms. Getchell was correct about being drugged, and that the test results were wrong, or that the drug levels were too low to be detected. Moreover, the presence of the drugs at Mr. Jordin's apartment showed that Mr. Jordin had knowledge of drugs that could have produced Ms. Getchell's symptoms.
Mr. Jordin argues that even if relevant, the admission of the evidence of drugs found at his home was unfairly prejudicial. We disagree. ER 403 allows the trial court to exclude relevant evidence where the evidence's probative value is substantially outweighed by the danger of unfair prejudice. The application of the rule by federal courts and the text of the rule itself demonstrate that "tremendous discretion is left with the trial court on the exclusion of relevant evidence." Lockwood v. AC S, Inc., 44 Wn. App. 330, 350, 722 P.2d 826 (1986) (citing 1 J. Weinstein M. Berger, Evidence ¶ 403[01]-[03] (1985)), aff'd, 109 Wn.2d 235, 744 P.2d 605 (1987). This broad discretion is also underscored in State v. Coe, 101 Wn.2d 772, 782, 684 P.2d 668 (1984). Under ER 403, unfair prejudice must substantially outweigh the probative value. Lockwood, 44 Wn. App. at 350. Here, there may have been prejudice but, on balance, it did not substantially outweigh the probative value of the evidence.
Moreover, even if evidence of the seized drugs was improperly admitted, "that error 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). In light of the evidence as a whole, any error here was harmless.
The trial court's decision to allow the testimony as to the seized drugs and their side effects was not an abuse of discretion.
F. Preservation of Sample.
Due process imposes a duty on the State to disclose and preserve material exculpatory evidence for use by the defense. State v. Wittenbarger, 124 Wn.2d 467, 475, 880 P.2d 517 (1994). The State's failure to preserve material exculpatory evidence requires dismissal of the charges against the defendant. State v. Copeland, 130 Wn.2d 244, 279, 922 P.2d 1304 (1996). A different test is used if the evidence is merely potentially useful. Id. at 280. Where the evidence is merely potentially useful evidence, no denial of due process occurs unless the defendant shows bad faith on the part of law enforcement. Id.
Evidence is material exculpatory evidence if it (1) possesses an exculpatory value that was apparent before it was destroyed, and (2) is of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means. Id. at 279-80 (quoting Wittenbarger, 124 Wn.2d at 475). The good or bad faith of the State is irrelevant when the State fails to disclose material exculpatory evidence to the defense.
On November 25, 2004, after the hospital's initial screening test of Ms. Getchell's urine was positive, additional tests were ordered "ASAP." RP (May 3, 2006) at 669. That same day, Officer Coleman obtained a medical release from Ms. Getchell. The three tests by the hospital, PAML, and National Medical Services depleted the urine sample. Police did not seek to secure a portion of the sample for evidentiary purposes or defense testing until February 2005.
According to Mr. Jordin, the State's theory was that benzodiazepines might have been present in Ms. Getchell's urine because the test administered by PAML was not comprehensive enough to eliminate all possibilities. Mr. Jordin contends that he could have countered this assertion if he had been given the opportunity to perform additional tests on the urine sample. He asserts that because of the contradictory test results, and PAML's failure to perform a comprehensive drug test, the State had an affirmative duty to take actions to preserve the sample for defense testing.
The State maintains that the urine sample was never in the State's possession and, therefore, the State had no obligation to preserve it. The State further argues that the sample was depleted by necessity through testing done for Ms. Getchell's benefit by hospital personnel.
The trial court concluded that the urine sample was potentially useful evidence. The court reasoned that the urine sample had been tested three times resulting in two negative tests that were favorable to Mr. Jordin, and the initial test was subject to false positives. The court concluded that the ability to retest the sample would only confirm the previous tests. The court explained that Mr. Jordin had the opportunity to demonstrate his innocence, without the use of a sample, through testimony that the first test was faulty while the second tests were accurate.
We agree that the State's failure to preserve a sample of the evidence did not violate due process of law. The evidence is merely potentially useful and Mr. Jordin failed to show bad faith on the part of the State.
Mr. Jordin contends that the State was allowed to argue that there were benzodiazepines present because PAML's tests were not comprehensive. He points to the following exchange which took place between the prosecutor and Ann Gordon, Laboratory Manager of the Washington State Toxicology Laboratory:
Q So, then, if there's a follow-up screen to try to classify which kind of benzodiazepine, is it guaranteed that you're going to find a benzodiazepine?
A Well, the — no, not always. There's a couple of possibilities. One is that the positive was — was due to a metabolite of the parent drug. And, if you're not also — so, you have to make sure that your confirmation test is looking at every possible benzodiazepine that's there that would react and, also, that it would also pick up — if all you had present was metabolites, that you're also looking for those metabolites. So — but you can't say it's there if you don't have the confirmation. I mean, that's — that's the caveat of that. The false positive doesn't — or something that screens positive that doesn't confirm could be because it isn't there or because you didn't have as comprehensive enough test to detect all the possibilities.
RP at 776-77 (emphasis added). Mr. Jordin did not object to this testimony.
This question concerns the motion in limine order. In response to Mr. Jordin's motion in limine, the court excluded expert testimony "as to what might have been discovered if a urine sample was still available for testing." CP at 476 (emphasis added).
The purpose of a motion in limine is to avoid the requirement that counsel object when contested evidence is introduced at trial. State v. Powell, 126 Wn.2d 244, 256, 893 P.2d 615 (1995). For this reason, the losing party is given a standing objection. Id. However, where the prevailing party obtains an order in limine excluding certain evidence, that party has a duty to bring the violation to the attention of the court and to allow the court to decide what remedy, if any, is necessary. State v. Sullivan, 69 Wn. App. 167, 171-72, 847 P.2d 953 (1993). In other words, the prevailing party, by failing to object, waives review of the trial court's action or inaction on the violation of the order in limine. Id. at 173.
Here, Mr. Jordin, who prevailed on the motion in limine, failed to object to the State's alleged violation of the order in limine. And Mr. Jordin cannot show that the State's conduct constituted deliberate disregard of the court's ruling or that the violation could not have been cured by an admonishment or curative instruction following an objection. In the absence of any unusual circumstances that make it impossible to avoid the prejudice of this evidence, Mr. Jordin waived review of the court's action or inaction by his failure to object.
Finally, Mr. Jordin contends that, during closing, the State made arguments about the initial test and the prescription drugs found at Mr. Jordin's apartment. Mr. Jordin also waived this issue by failing to object at trial. Joyce v. Dep't of Corr., 116 Wn. App. 569, 603, 75 P.3d 548 (2003), aff'd in part, rev'd in part, 155 Wn.2d 306, 119 P.3d 825 (2005).
G. Conclusion.
We affirm Mr. Jordin's convictions for indecent liberties and second degree rape.
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 THOMPSON, J. PRO TEM., concur.