Opinion
No. 36430-1-II.
January 21, 2009.
Appeal from a judgment of the Superior Court for Clark County, No. 06-1-02357-9, Barbara D. Johnson, J., entered June 14, 2007.
Affirmed by unpublished opinion per Penoyar, A.C.J., concurred in by Hunt, J.; Armstrong, J., dissenting.
UNPUBLISHED OPINION
Catrina M. Scarpa appeals her conviction for possession of methamphetamine, arguing that (1) her trial counsel ineffectively represented her when he proposed an incorrect jury instruction on unwitting possession, and (2) the trial court deprived her of a fair trial by admitting prejudicial evidence of her prior methamphetamine use and her possession of marijuana at the time of the arrest. We affirm.
FACTS
Vancouver Police Department Officer Keith Tyler pulled Scarpa over for driving a vehicle with no front license plate. Upon reviewing her documents, Tyler discovered that her license was suspended. He arrested Scarpa, and then searched her car incident to arrest. In Scarpa's car, Tyler found a purse containing two small containers, one wooden and one metal.
The wooden container contained a green leafy substance that Tyler recognized as marijuana, and the metal container contained a white crystal substance that was later identified as methamphetamine.
After Tyler informed Scarpa of her Miranda rights, Scarpa acknowledged that the marijuana was hers. However, when presented with the metal container, Scarpa insisted that the substance inside was not methamphetamine and that she did not know what it was; she had bought the container three days earlier at Goodwill. Tyler asked Scarpa whether she had "done meth in the past" and she responded "yes." Report of Proceedings (RP) (June 11, 2007) at 89.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Scarpa testified similarly at trial, saying that she bought the container because of the picture on the front and had only glanced inside it before buying it. She noticed that there was some dust inside, but thought little of it.
The State charged Scarpa with possession of methamphetamine, possession of marijuana, and driving with a suspended license in the third degree. Scarpa pleaded guilty to the latter two charges and went to trial on the methamphetamine charge.
Before trial, Scarpa moved under ER 404(b) to exclude Tyler's testimony that after he read her the Miranda warnings, she admitted to using methamphetamine in the past. The trial court denied the motion, ruling that the State could offer the evidence in rebuttal if Scarpa presented an unwitting possession defense because her prior use was relevant to show that she knew the substance in the container was methamphetamine.
Scarpa also moved to exclude the evidence of her marijuana possession at the time of her arrest. The trial court denied this motion under the res gestae exception, ruling that the circumstances of Scarpa's marijuana possession were "an inseparable part of the crime charged" because, as counsel noted, the two containers in Scarpa's purse were "closely connected." RP (June 11, 2007) at 19. The prosecutor relied on this connection in his closing argument, arguing:
[I]f we take a step back, we take a look at the evidence, the defendant has two containers in her purse. And I submit to you, based on the evidence at trial, taken together, that the defendant with the two containers in her purse — she had them — I submit to you one container was to hold her marijuana, the other container was to hold her methamphetamine. And that's why she was in possession of those two containers in her purse.
. . . .
[T]he State would submit to you that those two containers, by the defendant's own admission, were the defendants. They were in her purse. One was for her marijuana, the other was for methamphetamine. She told Officer Tyler herself she had used meth.
. . . .
The metal container in her purse was for her meth; the wood container in her purse was for her marijuana.
RP (June 11, 2007) at 103-04. The jury convicted Scarpa of possession of methamphetamine.
Scarpa now appeals.
ANALYSIS
I. Ineffective Assistance of Counsel
Scarpa argues that her attorney ineffectively represented her when he proposed an incorrect jury instruction on unwitting possession, which stated in part:
Possession of a controlled substance is unwitting if a person did not know the nature of the substance.
Clerk's Papers (CP) at 21. She maintains that counsel should have instead asked the trial court to instruct the jury that possession is unwitting if the possessor "did not know that the substance was in her possession." Br. of Appellant at 7; see 11 Washington Practice: Washington Pattern Jury Instructions Criminal 52.01, at 679 (2d ed. 1994) (WPIC). We disagree.
Effective assistance of counsel is guaranteed by both U.S. Const. amend. VI and Wash. Const. art. I, § 22 (amend. X). Strickland v. Washington, 466 U.S. 668, 685-86, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Hendrickson, 129 Wn.2d 61, 77, 917 P.2d 563 (1996). We review an ineffective assistance of counsel claim de novo. State v. White, 80 Wn. App. 406, 410, 907 P.2d 310 (1995).
To demonstrate ineffective assistance of counsel, Scarpa must show that (1) her attorney's performance was so deficient that it "fell below an objective standard of reasonableness" and (2) the deficient performance prejudiced her. Strickland, 466 U.S. at 687-88; State v. Brockob, 159 Wn.2d 311, 344-45, 150 P.3d 59 (2006). We give great deference to trial counsel's performance and begin our analysis with a strong presumption that counsel was effective. Strickland, 466 U.S. at 689. Moreover, if trial counsel's conduct is characterized as a legitimate trial strategy or tactic, it cannot serve as a basis for a claim of ineffective assistance of counsel. State v. Adams, 91 Wn.2d 86, 90, 586 P.2d 1168 (1978).
Here, the record provides ample support for counsel's decision to propose this particular instruction on unwitting possession. Scarpa testified that she noticed "some dust" in the metal container when she bought it, but that she did not know that the dust was methamphetamine. RP (June 11, 2007) at 76-77. She did not testify that she thought the container was empty; therefore, the only issue was whether Scarpa had knowledge that the dust was actually methamphetamine. Under these circumstances, the instruction given was proper and better supported by the record than the instruction Scarpa now proposes. Scarpa's argument fails the first prong of the test for ineffective assistance of counsel; therefore, we need not address the second prong.
II. Other Drug Possession and Use
Scarpa next argues that she was denied a fair trial when the trial court admitted evidence that she possessed marijuana at the time of her arrest and that she had used methamphetamine in the past. Again, we disagree.
"Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith." ER 404(b). Evidence of other bad acts may be admissible for purposes such as proof of knowledge, intent, or absence of mistake or accident. ER 404(b); State v. Foxhoven, 161 Wn.2d 168, 175, 163 P.3d 786 (2007). Admissibility of evidence of other bad acts is a matter within the sound discretion of the trial court; we review such rulings only for abuse of discretion. Foxhoven, 161 Wn.2d at 174. A trial court abuses its discretion if it bases its decision on untenable grounds or is manifestly unreasonable. State v. Harris, 97 Wn. App. 865, 869, 989 P.2d 553 (1999).
The inference forbidden by ER 404(b) is that because the defendant committed some other misconduct, he is "the kind of person who does things like this," and, therefore, he must have committed the misconduct charged. Jerome A. Hoffman, Res Gestae's Children, 47 Ala. L. Rev. 73, 90 (1995); see also State v. Wade, 98 Wn. App. 328, 336, 989 P.2d 576 (1999). This forbidden inference is rooted in the fundamental American criminal law belief in innocence until proven guilty, a concept that confines the fact finder to the merits of the current case in judging a person's guilt or innocence. Wade, 98 Wn. App. at 336 (citing Eric D. Lansverk, Note, Admission Of Evidence Of Other Misconduct In Washington To Prove Intent Or Absence Of Mistake Or Accident: The Logical Inconsistencies Of Evidence Rule 404(b), 61 Wash. L. Rev. 1213 (1986)).
Propensity evidence is not prohibited because it is irrelevant; "on the contrary, it is said to weigh too much with the jury and to so over persuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge." State v. Herzog, 73 Wn. App. 34, 49, 867 P.2d 648 (1994) (quoting Michelson v. United States, 335 U.S. 469, 475-76, 69 S. Ct. 213, 93 L. Ed. 168 (1948)). If evidence is relevant independently of the perpetrator's propensities, the trial court has discretion to balance its probative value against the danger of the unfair prejudice. Herzog, 73 Wn. App. at 50.
Typically, before a trial court may admit other bad acts evidence, it must (1) find by a preponderance of the evidence that the misconduct occurred; (2) identify the non-propensity purpose for which the evidence is sought to be introduced; (3) determine whether the evidence is relevant to prove an element of the crime charged; and (4) weigh the probative value against the prejudicial effect. State v. Thang, 145 Wn.2d 630, 642, 41 P.3d 1159 (2002). The trial court did not explicitly do this in this case, but its failure to do so is harmless if (1) the trial court would have admitted the evidence even if it had done the analysis, or (2) there is no reasonable probability that the outcome of the trial would have been different but for the error. State v. Carleton, 82 Wn. App. 680, 686-87, 919 P.2d 128 (1996).
A. Prior Methamphetamine Use
The State's justification for offering evidence of Scarpa's prior methamphetamine use was that it was relevant to rebut her claim that she did not know the "dust" in the container was methamphetamine. Scarpa argues on appeal that the evidence was not relevant on that basis because she "never claimed she could not identify methamphetamine." Br. of Appellant at 12.
Scarpa did claim, however, that she did not identify the "dust" in her container to be methamphetamine in that instance. Her prior experiences with methamphetamine were relevant to impeach this claim just as they would have been to impeach a claim that she had never seen it before. See City of Kennewick v. Day, 142 Wn.2d 1, 11, 11 P.3d 304 (2000).
Concluding that the evidence is relevant to a non-propensity purpose, we must also weigh its probative value against the danger of unfair prejudice. See Thang, 145 Wn.2d at 642. Relevant evidence may be excluded if its probative value is "substantially outweighed" by the danger of unfair prejudice. ER 403.
We recognize that evidence of drug usage does carry a significant danger of unfair prejudice. See State v. Crane, 116 Wn.2d 315, 333, 804 P.2d 10 (1991); State v. Renneberg, 83 Wn.2d 735, 737, 522 P.2d 835 (1974). Nonetheless, the sole issue in the case was whether Scarpa knew that the "dust" in the container was methamphetamine. Scarpa's previous experience with methamphetamine was critical information that the jury needed to resolve this issue. Therefore, the probative value of the evidence outweighed any prejudicial effect and the trial court did not err in admitting the evidence.
B. Marijuana Possession
Additionally, Scarpa argues that the trial court erred in admitting evidence of her marijuana possession at the time of her arrest because it was not relevant to show that she knew the substance in the other container was methamphetamine.
"Evidence which is not relevant is not admissible." ER 402. In this case, the only dispute was whether Scarpa knew the dust in her purse was methamphetamine or whether her possession was a mistake. Therefore, we first inquire into whether Scarpa's possession of one drug has any tendency to make her knowledge that she possessed a different drug in a similar container more probable or less probable than it would be otherwise. ER 401.
Scarpa's possession of marijuana in a small container in her purse was relevant, and admissible, to rebut a defense of mistake. Her possession of marijuana established that she had a practice of storing drugs in small containers in her purse. The question is whether the possession of marijuana is "sufficiently similar" to the allegation of methamphetamine possession to show a common scheme by Scarpa. State v. Baker, 89 Wn. App. 726, 735, 950 P.2d 486 (1997). Here, the similarity was in the manner of storage. A person who stores one cosmetic in their purse, for example, is also likely to store other cosmetics there. Similarly, the presence of marijuana in a small container demonstrated Scarpa's tendency to keep narcotics in small discrete containers in her purse.
Next we turn to ER 404, and the res gestae exception, both of which allow for the admission of evidence that completes the story of the crime. Our analysis of the res gestae exception and ER 404 is the same in this case. Here, the "story" is limited to relevant evidence that tends to prove or disprove the charge. Evidence is relevant and necessary if the purpose of admitting the evidence is of consequence to the action and makes the existence of the identified fact more probable. State v. Powell, 126 Wn.2d 244, 259, 893 P.2d 615 (1995) (citing State v. Dennison, 115 Wn.2d 609, 628, 801 P.2d 193 (1990)).
Having concluded that evidence of Scarpa's possession of marijuana is relevant, we must also weigh its probative value against the danger of unfair prejudice. See Thang, 145 Wn.2d at 642. Relevant evidence may be excluded if its probative value is "substantially outweighed" by the danger of unfair prejudice. ER 403. As noted earlier, drug possession often carries a negative connotation that may lead to a prejudicial effect. See Crane, 116 Wn.2d at 333; Renneberg, 83 Wn.2d at 737. Here, possession of marijuana was relevant to show a distinct pattern of drug possession occurring at a specific time and place.
Marijuana is a drug that may be possessed lawfully for medical purposes, may (in small quantities) subject its possessor to misdemeanor instead of felony prosecution, and is relatively familiar to the public. Therefore, evidence of simultaneous possession of marijuana is less likely to be prejudicial in a prosecution for possession of methamphetamine. We conclude that the probative value of Scarpa's possession of a container of marijuana outweighed any prejudicial impact the evidence may have had.
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.
Hunt, J., Concur.
I believe that the trial court abused its discretion when it applied the "res gestae" exception to the marijuana evidence presented in this case. The evidence was not relevant for any purpose other than to show propensity to possess drugs generally, and it was therefore inadmissible under ER 404(b). The evidence also prejudiced Scarpa because the State relied on it to prove its case. I dissent.
I. Relevance
The majority concludes that the marijuana evidence is relevant to rebut Scarpa's defense of mistake, citing State v. Baker, 89 Wn. App. 726, 735, 950 P.2d 486 (1997). But Baker held that evidence of prior bad acts may be admissible to rebut a defense of accident only if the similarity of the acts meets a "threshold of noncoincidence." Baker, 89 Wn. App. at 735; see also Eric D. Lansverk, Comment, Admission of Evidence of Other Misconduct in Washington to Prove Intent or Absence of Mistake or Accident: The Logical Inconsistencies of Evidence Rule 404(b), 61 Wash. L. Rev. 1213, 1225-26 (1986). The majority reasons that Scarpa's "manner of storage" for her marijuana was sufficiently similar to that of the methamphetamine to show a "common scheme" by Scarpa, Majority at 8, but one incidence of possession does not establish a recurrence that cannot be viewed as potentially coincidental. In addition, the "manner of storage," i.e., "small discrete containers," was not so indistinguishable as to negate the possibility of coincidence. Majority at 8. Nor are marijuana and methamphetamines even in the same family of illegal drugs.
The majority suggests that both drugs are "narcotics," Majority at 8, but in fact neither of them are. Compare RCW 69.50.101(q) with (r); compare RCW 69.50.401(2)(a) with (b). The two drugs are fundamentally distinct. See NIDA — Information on Drugs of Abuse — Commonly Abused Drugs Chart, http://www.drugabuse.gov/DrugPages/DrugsofAbuse.html#DEA (last visited Jan. 6, 2009).
Here, the State argued that the marijuana evidence showed Scarpa's propensity to possess drugs. The prosecutor's use of Scarpa's marijuana possession suggested that she was a drug user generally, and that because she was a drug user, her possession of a different drug, methamphetamine, in her purse was also for her use. This is a propensity inference, which is prohibited by ER 404(b).
II. Res Gestae Exception
Professor John Henry Wigmore outlined an exception to ER 404(b) for "other criminal acts that are an inseparable part of the whole deed":
Suppose that A is charged with stealing the tools of X; the evidence shows that a box of carpenter's tools was taken and that in it were the tools of Y and Z, as well as those of X. Here we are incidentally proving the commission of two additional crimes because they are necessarily interwoven with the stealing charged and together form one deed.
IA Wigmore on Evidence § 218, at 1883 (Tillers rev. 1983). Professor Wigmore explained that the uncharged crimes against Y and Z "are not offered as affecting A's character, nor do they affect his character, because all were done, if at all, as parts of a whole and if we believe or disbelieve his doing of one part, we believe or disbelieve his doing of all." IA Wigmore on Evidence § 218, at 1883. It is therefore logically impossible for the defendant to suffer the harm that ER 404(b) seeks to prevent: that the jury "condemn him now, though innocent of the act charged, because [it is] prejudiced by his former crimes." IA Wigmore on Evidence § 218, at 1883.
Washington courts have since expanded Professor Wigmore's concept, calling it the "res gestae" exception, to include evidence of any other acts that tend to "complete the story of the crime." See, e.g., State v. Powell, 126 Wn.2d 244, 263, 893 P.2d 615 (1995) (quotations omitted). I agree with critics who have commented that this formulation is obscure, indefinite, and subject to abuse. See, e.g., State v. Fetelee, 117 Haw. 53, 175 P.3d 709, 725-28 (Haw. 2008); Jerome A. Hoffman, Res Gestae's Children, 47 Ala. L. Rev. 73, 74-75 (1995) (describing the words "res gestae" as "more impressive for their obscurity with every passing generation" and "perhaps the most famous — and certainly the hardiest — judicial nonreason of all time"). As the District of Columbia Circuit has noted, all relevant evidence offered by the prosecution completes the story, whether admissible or not; thus, the fact that omitting some evidence would render a story slightly less complete cannot justify circumventing ER 404(b) altogether. United States v. Bowie, 232 F.3d 923, 929 (D.C. Cir. 2000). Professor Wigmore himself stated that "[i]t is not too much to say that [the term "res gestae"] is nowadays most frequently used merely as a cover for loose ideas and ignorance of principles." IA Wigmore on Evidence § 218, at 1888; see also Bowie, 232 F.3d at 928 n. 2 (referring to "res gestae" as a "Latinism" that "tends merely to obscure the analysis underlying the admissibility of the evidence") (quoting United States v. Krezdorn, 639 F.2d 1327, 1332 (5th Cir. 1981)).
Moreover, because notions of "res gestae" or "context" have no real conceptual limits, the exception threatens to swallow ER 404(b)'s general rule. Fetelee, 175 P.3d at 728 (quoting People v. Agado, 964 P.2d 565, 570 (Colo.Ct.App. 1998) (Briggs, J., concurring)); see Bowie, 232 F.3d at 928-29. The fact that evidence may provide "context" to a story has never been an exception to the requirement that all evidence be relevant. ER 402. And here, the evidence of Scarpa's marijuana possession was relevant only to show her propensity to commit the crime of methamphetamine possession. To use such evidence under the guise of "completing the story" is inconsistent with Wigmore's original formulation of the res gestae exception and prohibited by ER 404(b). I would therefore hold that the trial court abused its discretion in admitting it.
III. Prejudice
I would also conclude that the trial court's err prejudiced Scarpa because there is a reasonable probability that the trial outcome would have been different had the error not occurred. See State v. Benn, 161 Wn.2d 256, 266 n. 4, 165 P.3d 1232 (2007) (quoting State v. Neal, 144 Wn.2d 600, 611, 30 P.3d 1255 (2001)).
Scarpa raised an unwitting possession defense, which required her to prove by a preponderance of the evidence that she did not know the substance in her purse was methamphetamine. City of Kennewick v. Day, 142 Wn.2d 1, 10-11, 11 P.3d 304 (2000). She testified that she had bought the metal tin at Goodwill (she offered a copy of her receipt as an exhibit) because she liked the picture on the front, and she did not look closely inside before buying it. She did notice that there was some dust inside but "didn't think too much about it." Report of Proceedings (RP) (June 11, 2007) 77. Afterwards, she put the box into her purse and did not move it or use it during the three days before her arrest.
This defense is viable, and the State did not directly rebut any part of it. Instead, it made Scarpa's marijuana possession the focal point of its theory of the case, arguing repeatedly without any evidence that "one container was to hold her marijuana, the other container was to hold her methamphetamine." RP (June 11, 2007) at 103. Under these circumstances, the prosecutor's use of Scarpa's marijuana possession was both improper and prejudicial.