Opinion
No. 52218-3-I.
Filed: March 1, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 02-1-06725-1. Judgment or order under review. Date filed: 03/18/2003. Judge signing: Hon. Paris K Kallas.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Cheryl D Aza, Whatcom County Public Defender, 311 Grand Ave Ste 305, Bellingham, WA 98225-4038.
Michael Grah Muncy Doc#853545 (Appearing Pro Se), Stafford Creek Corrections Center, 191 Constantine Way, P.O. Box 900, Aberdeen, WA 98520.
Counsel for Respondent(s), Erin Hairopoulos Becker, King County Prosecutors Office, W554 King County Courthouse, 516 3rd Ave, Seattle, WA 98104-2390.
Prosecuting Atty King County, King County Prosecutor/appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
Evidence that a police officer observed Michael Muncy selling drugs to another person just before the officer approached and detained Muncy was not improper evidence of prior bad acts in his trial for possession of heroin with intent to deliver. Muncy's conviction is affirmed.
FACTS
A police officer observed a man hand Michael Muncy some currency. At the same time, Muncy reached into his fanny pack and handed the other man two small red objects which the other man placed in his mouth. Based upon his training and experience, the officer suspected that Muncy had delivered narcotics to the other man. As the officer approached, the other man began chewing and swallowing. The other man told the officer that he had swallowed the drugs. The officer, who was alone on duty without any backup, released the other man but detained Muncy. Muncy told the officer there were `other drugs' in his fanny pack. The officer found $146 in cash and two small balloons containing heroin in the fanny pack. Muncy told the officer that he sold two balloons of drugs to the other man for $30. He started the day with less cash but that he had made several drug transactions that day.
Muncy was charged with possession of heroin with intent to deliver. In a pretrial motion the superior court ruled that the officer's observations of the exchange between Muncy and the other man were admissible under ER 404(b). At trial, Muncy testified that he had not sold any drugs and that he did not tell the officer he had sold any drugs. Muncy claimed that he purchased the two balloons of heroin from the other man to personally use to ease his severe back pain. The jury found Muncy guilty of possession of heroin with intent to deliver.
DECISION
The sole issue raised on appeal is whether the officer's observation of Muncy selling drugs to another person minutes before he was detained should have been excluded as a prior bad act under ER 404(b). Evidence of a defendant's "prior bad acts" may only be admitted for limited purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. ER 404(b). Other misconduct is also admissible if it is 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. The trial court has wide discretion in balancing the probative value of such evidence against prejudicial effect.
State v. Tharp, 96 Wn.2d 591, 637 P.2d 961 (1981).
State v. Jackson, 102 Wn.2d 689, 693-94, 689 P.2d 76 (1984).
State v. Thomas also involved a charge of possession with intent to deliver. This court affirmed the trial court's ER 404(b) ruling that admitted two police officers' testimony of the defendant's alleged drug dealings observed by the officers shortly before his arrest. The officers observed three separate transactions, in which an individual or several individuals approached Thomas, briefly conversed with him, and gave him money in exchange for apparent drugs kept in a small white pill bottle. The officer later searched Thomas and found in his pockets a pill bottle containing rock cocaine, a baggie of cocaine, cash, and a pager. This court held that the testimony about the pre-arrest contacts was both relevant to prove intent to deliver and necessary for the jury to see the complete picture of what happened: `In addition, the officers' testimony tends to make it more probable that Thomas intended to deliver the cocaine he possessed. It also provided the jury with a complete picture of what occurred that evening.' The testimony was `highly probative of what Thomas intended to do with the cocaine, and its probative value greatly outweighed the prejudicial effect.' Muncy argues that Thomas is factually distinguishable because Thomas possessed a large quantity of drugs as well as a pager. But those distinctions are not compelling. As in Thomas, the officer's testimony provided immediate context for the arrest of Muncy and was relevant to prove intent to deliver. The inference that Muncy exchanged drugs for money shortly before his arrest makes it more probable that he intended to sell the drugs that he possessed when arrested. Muncy relies upon State v. Wade for the proposition that prior deliveries should not be admitted to prove a propensity to deliver the drugs currently in the defendant's possession. But in Wade, the State offered evidence that the defendant had previously sold drugs months earlier to prove the current charge that the defendant possessed drugs with intent to deliver. Here, as in Thomas, the delivery by Muncy occurred just minutes before he was detained and provided a complete picture of the circumstances leading up to his arrest as well as his continuous intent.
68 Wn. App. 268, 843 P.2d 540 (1992).
68 Wn. App. 268, 273-74, 843 P.2d 540 (1992).
Thomas, 68 Wn. App. at 270-71.
Thomas, 68 Wn. App. at 271.
Thomas, 68 Wn. App. at 273.
Thomas, 68 Wn. App. at 274.
See State v. Hernandez, 85 Wn. App. 672, 676, 935 P.2d 623 (1997) (reasonable to infer that defendant just delivered cocaine when, minutes later, police recover bindles of cocaine in his possession.)
98 Wn. App. 328, 334, 989 P.2d 576 (1999).
See generally, State v. Pogue, 104 Wn. App. 981, 984-85, 17 P.3d 1272 (2001) (prior bad acts evidence is inadmissible merely to show a propensity for committing misconduct).
The superior court did not abuse its discretion in admitting the officer's observations of Muncy's apparent delivery of drugs immediately prior to his detention.
Affirmed.
GROSSE and KENNEDY, JJ., concur.