Opinion
No. 56041-7-I.
May 22, 2006.
Appeal from a judgment of the Superior Court for King County, No. 04-1-05890-9, Michael Heavey, J., entered March 14, 2005.
Counsel for Appellant(s), Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Dana M. Lind, Nielsen Broman Koch PLLC, 1908 E Madison St, Seattle, WA 98122-2842.
Counsel for Respondent(s), Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
Scott Frederick Leist, King County Prosecutors Office, W554 King County Courthouse, 516 3rd Ave, Seattle, WA 98104-2390.
Affirmed, by unpublished per curiam opinion.
An evidentiary error is harmless if, within reasonable probabilities, it did not affect the outcome of the trial. Here, the admission of evidence of a crime of dishonesty that was more than 10 years old was harmless. Evidence of five other convictions of crimes involving dishonesty less than 10 years old was per se admissible.
State v. Russell, 104 Wn. App. 422, 434, 16 P.3d 664 (2001).
The prosecutor's brief reference that Kevin McCauley had "six prior felony convictions involving crimes of dishonesty" did not deny him a fair trial. Finally, the court properly decided not to give a definitional instruction of "possession" in this case involving actual possession, a commonly understood term. We affirm.
In August 2004, Douglas Fix's 2000 Chevy truck was stolen from the parking lot at the Sleep Inn in Sea-Tac. The following month, Officer Michael Graddon, who was on duty, arrived at the Three Bears Motel in Des Moines around midnight. Officer Graddon parked behind a white Chevy pickup truck, checked the license plate on his mobile data computer (MDC), and discovered the truck was stolen. Officer Graddon testified at trial that he saw McCauley get out of the driver's seat and quickly walk away. Officer Graddon ordered McCauley to get on the ground and then arrested him. Officer Graddon testified that he read McCauley his Miranda rights, and McCauley indicated that he understood them and wished to waive them. Officer Graddon further testified that on the way to the precinct McCauley admitted that he stole the truck two or three days before from a parking lot at the Midway Casino in Des Moines.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
(Officer Graddon did not obtain a signed written statement or a taped statement from McCauley.).
The State charged McCauley with first degree possession of stolen property. Prior to trial, the State moved in limine under ER 609 to impeach McCauley with his 13 prior convictions for crimes involving dishonesty from 1987 to 2004 should he choose to testify. The trial court ruled that the State could impeach McCauley with only six of his prior convictions.
The jury convicted McCauley as charged.
McCauley appeals.
ER 609
McCauley argues that the trial court erred in admitting his one prior conviction that was more than 10 years old because the trial court did not conduct a balancing test on the record and did not address whether defense counsel received proper notice. We agree that the trial court erred. However, the errors were harmless.
Balancing on the Record
Prior convictions of crimes involving dishonesty or false statement are admissible in order to impeach a witness or a criminal defendant. If a conviction is more than 10 years old, its admissibility is governed by ER 609(b), which provides:
ER 609(a).
(b) Time Limit. Evidence of a conviction under this rule is not admissible if a period of more than 10 years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old . . . is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.
ER 609(b) (emphasis added).
If a conviction involves a crime of dishonesty or false statement that is 10 years old or less, no balancing test is required, and the conviction is admissible. However, when a conviction is more than 10 years old, the trial court must conduct a balancing test on the record, regardless of whether the conviction involves dishonesty or false statement. Failure to do so is error.
ER 609(a); Russell, 104 Wn. App. at 434.
Russell, 104 Wn. App. at 434.
Id.
Here, the trial court admitted six of McCauley's prior convictions involving crimes of dishonesty. Five of the convictions were within the last 10 years and admissible without balancing. However, his prior 1994 misdemeanor theft conviction was more than 10 years old. The admission of this evidence without balancing on the record was error.
(Three misdemeanor theft convictions in 2004, 1999, 1994; one first degree theft conviction in 2000; one taking a motor vehicle without permission conviction in 1996; and one misdemeanor conviction for possessing stolen property in 1995.).
Harmless Error
An evidentiary error is harmless if "`within reasonable probabilities' it did not affect the outcome of the trial." To determine whether the error was harmless, we assume that the trial court would not have admitted the conviction if it had properly balanced, and ask, in light of all of the evidence, did the conviction "within reasonable probabilities" affect the verdict.
Russell, 104 Wn. App. at 434 (quoting State v. Calegar, 133 Wn.2d 718, 727, 947 P.2d 235 (1997)).
Id. at 435, 438.
Here, Officer Graddon testified that he saw McCauley exit the truck and quickly walk away. Officer Graddon further testified that post-Miranda, McCauley confessed to stealing the truck. Given Officer Graddon's testimony, McCauley's confession, and the five other per se admissible convictions, the sixth conviction did not, within reasonable probabilities, affect the verdict.
Moreover, assuming without deciding that the State did not give McCauley sufficient notice of its intent to use the 1994 theft conviction, that error was also harmless for the same reasons.
PROSECUTORIAL MISCONDUCT
McCauley next argues that the State committed prosecutorial misconduct by referring to his six prior convictions as "six prior felony convictions," and he was therefore deprived of his right to a fair trial. We disagree.
Prosecutorial misconduct requires a showing that the prosecutor's conduct was both improper and prejudicial in the context of the entire record and circumstances at trial. The defendant bears the burden of showing both prongs of prosecutorial misconduct. If a defendant does not object or request a curative instruction, the defendant waives such error, unless the comment is "so flagrant and ill-intentioned that it evinces an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury." Where the defendant does object to the alleged prosecutorial misconduct, we will give deference to the trial court's ruling on the matter. "The trial court is in the best position to most effectively determine if prosecutorial misconduct prejudiced a defendant's right to a fair trial."
___, review denied, 151 Wn.2d 1039 (2004).
Id.
State v. Stenson, 132 Wn.2d 668, 719, 940 P.2d 1239 (1997); State v. Hoffman, 116 Wn.2d 51, 93, 804 P.2d 577 (1991).
Stenson, 132 Wn.2d at 719.
Id. (quoting State v. Luvene, 127 Wn.2d 690, 701, 903 P.2d 960 (1995)).
Here, the trial court ruled that the State could impeach McCauley with at least six prior convictions for crimes involving dishonesty. During cross-examination, the prosecutor asked McCauley whether he had "over six prior felony convictions for crimes of dishonesty." McCauley answered yes. There was no objection.
After redirect, outside the presence of the jury, McCauley informed the court that he did not have six prior felony convictions, but only two. He requested a curative instruction. The trial court denied the request, finding McCauley was not prejudiced by the comment.
The trial court was in the best position to determine whether the comment was prejudicial. Giving a curative instruction would likely have focused the jury's attention on McCauley's prior convictions. On this record, the denial of the request was proper.
We note that the prosecutor corrected her earlier mistake during closing. She explained to the jury that McCauley admitted to "at least six prior convictions for crimes of dishonesty."
We hold that the trial court was within its discretion to find that the prosecutor's comment did not prejudice McCauley. Accordingly, there is no basis to reverse the decision of the court on the basis of prosecutorial misconduct.
DEFINITIONAL INSTRUCTION
McCauley argues that the trial court erred in failing to instruct the jury on the definition of possession. We disagree.
Jury instructions are sufficient if they are supported by substantial evidence, allow each party to argue his or her theory of the case, and properly inform the jury of the applicable law. The jury must be instructed on each element of the criminal offense. Trial courts must define technical words and expressions used in jury instructions, but need not define words and expressions that are of common understanding, even if those terms are defined by statute. It is within the trial court's discretion to define commonly understood terms.
State v. Clausing, 147 Wn.2d 620, 626-27, 56 P.3d 550 (2002).
State v. Allen, 101 Wn.2d 355, 358, 678 P.2d 798 (1984).
Id.; State v. Scott, 110 Wn.2d 682, 691, 757 P.2d 492 (1988) (Holding that a definitional instruction for `knowledge' was not required because `knowledge' is a commonly understood term, and although it is defined by statute, that `does not mean that it has acquired a technical meaning.').
Scott, 110 Wn.2d at 692.
Here, McCauley proposed a jury instruction defining possession as including both actual and constructive possession:
Possession means having property in one's custody or control. It may be either actual or constructive. Actual possession occurs when the item is in the actual physical custody of the person charged with possession. Constructive possession occurs when there is no actual physical possession but there is dominion and control over the property. Dominion and control need not be exclusive to establish constructive possession.
WPIC 50.03 (modified to change substance to property).
McCauley's proposed WPIC 50.03, which is the definitional instruction for possession of a controlled substance. The trial court ruled that an instruction defining possession in this case was "not appropriate," and declined to define possession for the jury. We agree.
This was a case of actual, not constructive possession. Thus, an instruction on constructive possession was irrelevant. The State's evidence showed that McCauley was seen exiting the driver's side of the truck, and that he confessed to stealing it. Although McCauley denied being in the truck or that he confessed to taking it, the State never asserted that McCauley exercised dominion and control over the truck. McCauley's reliance on two cases is misplaced. In State v. Plank, the defendant's conviction for possession of stolen property was reversed because there was insufficient evidence to establish that he constructively possessed, had dominion and control over, the automobile as a passenger. In State v. McCaughey, the court held that the defendant did not have dominion and control of the stolen merchandise found in a vehicle he was sleeping by because the only evidence presented was that the defendant had access to the property and was in close proximity to it.
46 Wn. App. 728, 733, 731 P.2d 1170 (1987).
14 Wn. App. 326, 329-30, 541 P.2d 998 (1975).
We affirm the judgment and sentence.
COX, GROSSE and COLEMAN, JJ.