Opinion
Nos. 48327-7-I, c/w 48328-5-I.
Filed: March 4, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of King County, No. 011004448, Hon. Larry Jordan, March 19, 2001, Judgment or order under review.
Counsel for Appellant(s), Nielsen Broman Koch Pllc, 810 Third Avenue, 320 Central Building, Seattle, WA 98104.
Eric Broman, Nielsen Broman Assoc. Pllc, 810 3rd Ave Ste 320, Seattle, WA 98104.
Counsel for Respondent(s), Randi J. Austell, King Co Pros Attorney, 516 3rd Ave 5th Floor, Seattle, WA 98104.
A jury convicted Anthony Roessler of possession of a stolen car. He appeals, contending that a second false driver's license found in his wallet following his arrest was improperly admitted under ER 404(b). We find that the trial court did not abuse its discretion by admitting the license. Roessler also argues that his attorney's failure to request a limiting instruction constituted ineffective assistance of counsel. Because the failure to request a limiting instruction could have been a legitimate trial tactic, we reject this claim.
On the day of trial, the trial court denied the State's motion to amend the information to add charges of identity theft, forgery, and second degree possession of stolen property for the laptop computer. The State filed the additional charges under a new cause number. In exchange for the dismissal of the forgery charge, Roessler pled guilty to the identity theft and possession charges. The cases were consolidated for appeal. Because Roessler does not assign any error in the second case, we affirm the judgment and sentence.
FACTS
Responding to a report of a car prowl on October 29, 2000, at approximately 11:30 p.m., Officer Gabriel Shank approached Anthony Roessler as he sat in the driver's seat of a Nissan Maxima and asked if he owned the car. Although Roessler claimed to be the owner, he could not produce a registration, title, or bill of sale. Instead, Roessler removed keys from the ignition and handed them to the officer. When Shank requested his license, Roessler produced a license with his picture and the name `Benjamin Curran.' While Officer Shank spoke to Roessler, another officer ran the license plate. The Nissan had been reported stolen. Roessler was arrested. In a search incident to arrest, officers found a second driver's license with Roessler's picture and the name `Kurtis Gazin,' as well as a large set of car keys that appeared to be for `miscellaneous foreign cars.'
Police also arrested Adrienne Thurston, a friend of Roessler's, who was in a Honda Civic nearby. A search of the Honda revealed various items of personal property, including a laptop computer. According to Thurston, she had driven Roessler to the Nissan and the items in her car belonged to him.
The State charged Roessler with second degree possession of stolen property (the Nissan). The trial court denied a defense motion to exclude the second license, admitting it to prove intent, preparation, and knowledge. Following a jury trial, Roessler was convicted.
DECISION Admission of Second False License
Roessler argues that the trial court erred by admitting into evidence the second false driver's license. A trial court's ruling on admissibility of evidence will not be overturned absent an abuse of discretion. Evidence of other crimes, wrongs, or acts is inadmissible to prove propensity, but may be admitted for other purposes, `such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.' ER 404(b). Even if admissible for a valid purpose, evidence admitted under ER 404(b) must be relevant to a material issue and its probative value must outweigh its prejudicial effect.
State v. Lane, 125 Wn.2d 825, 831, 889 P.2d 929 (1995).
State v. Brown, 132 Wn.2d 529, 571, 940 P.2d 546 (1997); ER 403.
Roessler argues that the second license was not relevant to any material issue regarding knowledge but simply tended to show his propensity for dishonesty, a violation of ER 404(b). The State argues that the second license was properly admitted as circumstantial evidence of intent, knowledge, preparation, and lack of mistake.
The trial court properly ruled that the second license was probative of motive, intent, preparation, and knowledge. In State v. White, a false identification discovered in a search incident to the defendant's arrest for possession of a stolen credit card was similarly admissible to show knowledge, plan, preparation, and absence of mistake. The trial court also weighed prejudice against probative value on the record, concluding that the evidentiary value of the second license outweighed any prejudicial effect, particularly in light of the fact that the jury would learn that Roessler presented the first false license to Officer Shank. The trial court did not abuse its discretion.
43 Wn. App. 580, 718 P.2d 841 (1986).
White, 43 Wn. App. at 588.
Even assuming error, we conclude any such error was harmless. Evidentiary errors under ER 404(b) are not of constitutional magnitude. We must determine, within reasonable probabilities, whether the outcome of the trial would have been different if the evidentiary error had not occurred. Here, the outcome of the trial would not have been any different if the second license had been excluded. There was overwhelming evidence that Roessler knowingly possessed a stolen car.
State v. Jackson, 102 Wn.2d 689, 695, 689 P.2d 76 (1984).
Bryce Eipert, the Nissan's registered owner, testified that he had last seen the car on October 25. On the morning of October 26, Eipert reported to the police that it was stolen. He testified that he did not give Roessler permission to possess the car. Adrienne Thurston testified that she had driven Roessler to the Nissan where he began transferring bags of his things from her car to the Nissan. She also testified that she had seen Roessler driving the Nissan for three or four days before his arrest.
Officer Shank testified that Roessler claimed he bought the car but was unable to produce a registration, title, or bill of sale, and eventually provided the false identification with the name `Benjamin Curran.' Auto Theft Detective Richard Bourns testified at length about `altered' keys, which he identified as the `tools of the trade' for auto thieves. He testified that the keys Roessler had removed from the Nissan's ignition had been altered. He also testified that at least two of the keys on the key ring recovered in the search incident to arrest had been altered as well.
Given the overwhelming evidence, exclusion of the second license would not have changed the outcome of the trial. Any error was harmless.
Ineffective Assistance of Counsel
Roessler contends that his attorney's failure to request an instruction limiting the jury's consideration of the second license constituted ineffective assistance of counsel.
To establish ineffectiveness, the defendant must show that counsel's performance was deficient and prejudice resulted from the deficiency. There is a strong presumption that defense counsel's conduct constituted sound trial strategy. Thus, one claiming ineffective assistance must show that, in light of the entire record, no legitimate strategic or tactical reasons support the challenged conduct.
Strickland v. Washington, 466 U.S. 668, 80 L.Ed.2d 674, 104 S.Ct. 2052 (1984); State v. Thomas, 109 Wn.2d 222, 743 P.2d 816 (1987).
State v. Barragan, 102 Wn. App. 754, 762, 9 P.2d 942 (2000).
State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
At trial, the defense theory was that Roessler did not know the car was stolen. A decision to not request a limiting instruction that would highlight the second license as proof of knowledge is consistent with the defense theory. We conclude that Roessler failed to meet his burden of showing that no legitimate strategic or tactical reasons supported counsel's conduct.
Cumulative Error
Finally, Roessler contends that he was denied a fair trial due to the cumulative effect of the errors. But, as stated above, the trial court did not err.
We affirm.