Opinion
No. 35048-3-II.
August 21, 2007.
Appeal from a judgment of the Superior Court for Kitsap County, No. 06-1-00449-1, Anna M. Laurie, J., entered June 9, 2006.
Affirmed by unpublished opinion per Armstrong, J., concurred in by Van Deren, A.C.J., and Penoyar, J.
Nicholas Todd Pines appeals his convictions of three counts of unlawful delivery of a controlled substance. Bremerton police officers arranged for confidential informant Edwina Stokes to make three controlled drug purchases from Pines. Pines's defense theory was that Stokes was a drug addict who fabricated the drug purchase stories to support her addiction. Pines argues that the trial court erred in not allowing him to impeach Stokes with evidence that she used drugs during the time surrounding the controlled buys. Pines also argues that the State presented insufficient evidence to prove that he delivered a controlled substance to Stokes during the first controlled buy since another person in the house actually transferred the drugs to Stokes. Finding no error, we affirm.
FACTS
Edwina Stokes worked for Bremerton Police Detective Martin Garland as a confidential informant. On three separate occasions, Garland hired Stokes to buy crack cocaine from Nicholas Pines. Garland paid Stokes after each of the three buys. Stokes did not have a job during the relevant time period, and her only other source of income was a $542 per month SSI payment.
Garland and Stokes followed the same protocol for each of the three controlled buys. They met and talked about where the drug transaction would occur, how much money he planned to give her, and how much drugs that money could buy. After searching Stokes for drugs and money, Garland gave her the money for the controlled buy and sent her to Pines's house to purchase drugs. Garland and Stokes both testified that although Garland searched Stokes before each controlled buy, Stokes could have hidden cocaine on her person where Garland would not have found it. Garland said that he did not perform a strip search and that he did not search Stokes's underclothes. Stokes testified that although she probably could have hidden drugs on her person, she did not.
From various vantage points, undercover officers working with Garland watched Stokes enter Pines's house. None of the officers could see Stokes after she entered Pines's residence.
Stokes testified that on the first buy, she told Pines that she wanted $200 worth of crack cocaine and gave him $200. Stokes left the room to speak with one of Pines's roommates, and when she returned, another person handed her a napkin full of crack cocaine. She then left Pines's house and gave the drugs to Garland, who again searched her for drugs and money.
On the second controlled buy, Stokes asked Pines for $60 worth of crack cocaine. Pines handed her a plastic bag containing $60 worth of crack cocaine. Stokes then left Pines's house and took the drugs to Garland, who again searched her before paying her and letting her leave.
On the third controlled buy, Stokes asked Pines for $100 worth of crack cocaine. Pines provided Stokes with $100 worth of crack cocaine, which she then took to Garland. As with the previous two buys, Garland searched Stokes and then paid her for her participation in the transaction.
Later that day, police officers served a search warrant on Pines's residence and arrested him for unlawful delivery of cocaine.
The State charged Pines with three counts of delivery of a controlled substance and alleged that each delivery occurred within 1,000 feet of a school bus route.
Before trial, the State moved in limine to prevent the defense from referring to Stokes's prior drug use. In an interview with the prosecutor, Stokes said that she stopped using crack cocaine five or six years earlier. Defense counsel argued that Stokes's credibility was at issue and that if she testified that she had not used crack cocaine for several years, the court should allow him to impeach her with Pines's testimony that he had seen her use crack cocaine in the time surrounding the three controlled buys.
Finding that Stokes's drug use before the first controlled buy was irrelevant and that ER 404(b) prevented testimony regarding Stokes's drug and alcohol use during the time surrounding the controlled buys, the court limited testimony to Stokes's drug and alcohol use during the three controlled buys.
The jury convicted Pines on each unlawful delivery count and found that each delivery occurred within 1,000 feet of a school bus stop.
ANALYSIS I. Impeaching Stokes
Pines argues that the trial court should have allowed him to ask Stokes about her drug use during the time period surrounding the controlled buys. He argues that the trial court's ruling prevented him from impeaching Stokes and from arguing his theory of the case: that Stokes hid drugs on her person before entering Pines's residence to conduct the controlled buys and that she fabricated her story that Pines sold drugs to her. Pines reasons that evidence of Stokes's drug use during the time surrounding the buys shows her motive to fabricate the alleged purchases from Pines so that she could earn money to support her own addiction.
Under ER 607, any party may attack any witness's credibility. A party may not introduce extrinsic evidence of "[s]pecific instances of conduct of a witness, for the purpose of attacking or supporting the witness['s] credibility." ER 608(b). But if specific instances of a witness's conduct are "probative of truthfulness or untruthfulness," the court may allow inquiry into those specific instances "on cross examination of the witness (1) concerning the witness'[s] character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified." ER 608(b).
Generally, a defendant can impeach a witness with evidence of her drug use only when there is a reasonable inference that the witness was under the influence of drugs either at the time of the events in question, or while testifying at trial. State v. Thomas, 150 Wn.2d 821 863, 83 P.3d 970 (2004) (citing State v. Russell, 125 Wn.2d 24, 83, 882 P.2d 747 (1994)); State v. Tigano, 63 Wn. App. 336, 344, 818 P.2d 1369 (1991) (citing State v. Brown, 48 Wn. App. 654, 658, 739 P.2d 1199 (1987)).
In his offer of proof, Pines's counsel stated that Pines could testify that Stokes used cocaine at his residence and other places during the general time of the drug purchases. Pines's counsel offered no evidence that Pines saw Stokes using crack cocaine or alcohol during the three controlled buys. See Tigano, 63 Wn. App. at 344-45. And nothing in the record shows that Pines was under the influence of drugs or alcohol while she testified at trial. See Tigano, 63 Wn. App. at 344-45.
But at the State's motion in limine, Pines's counsel argued only that the court should allow him to impeach Stokes's anticipated testimony that she no longer used crack cocaine. He did not argue that the drug use evidence was admissible to show her motive to falsely accuse Pines. A party may not argue on appeal a different grounds for the admissibility of evidence than the grounds argued to the trial court. State v. Ferguson, 100 Wn.2d 131, 138, 667 P.2d 68 (1983) (quoting 5 K. Tegland, Washington Practice, Evidence § 10, at 25 (2d ed. 1982)).
Moreover, Stokes never testified on direct examination that she had not used crack cocaine during the time surrounding the controlled buys. In response to Pines's counsel's questions on cross-examination, she denied drinking alcohol or using crack cocaine during the controlled buys. Because Stokes did not testify that she did not use crack cocaine during the months surrounding the controlled buys, Pines could not impeach her with testimony to the contrary.
Regardless, evidence of drug possession and use generally is not probative of truthfulness because such evidence has little relevance to a witness's credibility. State v. Stockton, 91 Wn. App. 35, 42, 955 P.2d 805 (1998) (citing State v. Benn, 120 Wn.2d 631, 651, 845 P.2d 289 (1993) and State v. Wilson, 83 Wn. App. 546, 553-54, 922 P.2d 188 (1996)); see also Tigano, 63 Wn. App. at 344-45 (evidence of a witness's drug addiction or use on other occasions is generally inadmissible because it is impermissibly prejudicial) (citing State v. Renneberg, 83 Wn.2d 735, 737, 522 P.2d 835 (1974)); State v. Carlson, 61 Wn. App. 865, 876, 812 P.2d 536 (1991) (extrinsic evidence cannot be used to impeach a witness on collateral issues, even if the evidence may have some indirect bearing on motive, bias, or prejudice) (citations omitted). Accordingly, the trial court did not err in refusing to allow Pines to impeach Stokes with testimony that Stokes used drugs during the months surrounding the controlled buys.
Pines also maintains that the trial court erred by precluding him from presenting Stokes's inconsistent statements about her alcohol use at the time of the buys. Pines argues that during the State's motion in limine, the prosecutor stated that Stokes had admitted consuming alcohol during the time of the buys. Pines mischaracterizes the record. The prosecutor stated that Stokes admitted to using illegal drugs, but that she quit using them approximately five or six years earlier. Stokes told the prosecutor that she drank alcohol between December and March, the time period during which she conducted the controlled buys. The prosecutor stated that she was "not sure that [Stokes] said she was drinking alcohol while she was doing the buy. It's possible that she did." Report of Proceedings (RP) at 8. In any event, the trial court expressly ruled that the parties could elicit testimony about Stokes's drug or alcohol use during the buys. And at trial, Stokes testified that she did not consume alcohol during the controlled buys. Pines's argument that the court's ruling precluded him from presenting Stokes's inconsistent statement is without merit because Stokes never made an inconsistent statement.
II. Sufficiency of the Evidence
The State charged Pines with three counts of unlawful delivery of a controlled substance; each count pertained to one of the three controlled buys. Pines argues that the State did not present sufficient evidence to support a conviction on count 1.
Evidence is sufficient to support a conviction if, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992) (citing State v. Green, 94 Wn.2d 216, 220-22, 616 P.2d 628 (1980)). An insufficiency claim admits the truth of the State's evidence. Salinas, 119 Wn.2d at 201 (citing State v. Theroff, 25 Wn. App. 590, 593, 608 P.2d 1254 (1980)). In reviewing a sufficiency challenge, we draw all reasonable inferences from the evidence in the State's favor. State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977) (citing State v. Woods, 5 Wn. App. 399, 404, 487 P.2d 624 (1971)).
To convict Pines of unlawful delivery of a controlled substance, as charged in count 1, the State had to prove that Pines or an accomplice delivered cocaine and that Pines knew the substance was cocaine. RCW 69.50.101(f), .401(1). Delivery "means the actual or constructive transfer from one person to another of a substance." RCW 69.50.101(f). The court instructed the jury that anyone who is present at the scene and ready to assist, by his presence, aids in the commission of the crime and is therefore an accomplice. See RCW 9A.08.020(3); State v. Mora, 110 Wn. App. 850, 859, 43 P.3d 38 (2002) (Washington law does not distinguish between principal and accomplice liability in criminal cases) (citing State v. Rodriguez, 78 Wn. App. 769, 773, 898 P.2d 871 (1995)).
Pines contends that the State failed to provide sufficient evidence that he "took a substantial step in delivering drugs to" Stokes during the first controlled buy. Br. of Appellant at 24. He admits that Stokes gave him money and told him that she wanted drugs, but argues that another individual gave Stokes the drugs. He points out that Stokes did not see him talk with the individual or give the individual any drugs.
Stokes's testimony corroborates Pines's statement that although he took the money, another person gave her the drugs. But the definition of delivery of a controlled substance contemplates a middleman like Pines. See RCW 69.50.101(f) (delivery means actual or constructive transfer). And although Pines did not physically transfer the drugs to Stokes, he is still criminally liable as an accomplice to the delivery if he "[w]ith knowledge that it will promote or facilitate the commission of the crime, . . . encourages, or requests [another] person to commit it; or aids or agrees to aid such other person in planning or committing it." RCW 9A.08.020(3)(a)(i)-(ii).
At trial, Stokes testified that Pines was talking to his mother on the telephone when she entered his house. She said that when he saw her enter the room he said, "What's up?" and told her to "wait for a second." RP at 136. Stokes sat down on the couch next to him, said she wanted to buy $200 worth of crack cocaine, and gave him $200. Stokes then left the room and went to another room to speak with Pines's roommate. When she returned, Pines was still talking on the phone. Another individual in the room handed her a napkin full of crack cocaine.
Viewing the evidence in the State's favor, a rational trier of fact could find beyond a reasonable doubt that Pines was at least an accomplice to the delivery alleged in count 1.
Affirmed.
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.
VAN DEREN, A.C.J., PENOYAR, J., concur.