State v. Jordin

• Decision Date: 09 October 2008
• Docket Number: 25383-0-III
• Court: Washington Court of Appeals
• Parties: STATE OF WASHINGTON, Respondent, v. ARLIN REYNOLDS JORDIN, Appellant.

STATE OF WASHINGTON, Respondent, v. ARLIN REYNOLDS JORDIN, Appellant.

No. 25383-0-III

Court of Appeals of Washington, Division 3

October 9, 2008

ORDER GRANTING MOTION FOR RECONSIDERATION, AMENDING OPINION, AND DENYING MOTION TO PUBLISH

JOHN A SCHULTHEIS, CHIEF JUDGE

The court has considered appellant's motion for reconsideration and the answer thereto, the motion to publish, and the record and file herein, and is of the opinion the motion for reconsideration should be granted and the opinion shall be amended as follows:

On page 25 of the opinion after the first full paragraph which ends "that could have produced Ms. Getchell's symptoms," the following paragraphs shall be added:

Mr. Jordin argues that even if relevant, the admission of the evidence of drugs found at his home was unfairly prejudicial. We disagree. ER 403 allows the trial court to exclude relevant evidence where the evidence's probative value is substantially outweighed by the danger of unfair prejudice. The application of the rule by federal courts and the text of the rule itself demonstrate that "tremendous discretion is left with the trial court on the exclusion of relevant evidence." Lockwood v. AC & S, Inc., 44 Wn.App. 330, 350 722 P.2d 826 (1986) (citing 1 J. Weinstein & M. Berger Evidence ¶ 403[01]-[03] (1985)), aff'd, 109 Wn.2d 235, 744 P.2d 605 (1987). This broad discretion is also underscored in State v. Coe, 101 Wn.2d 772, 782, 684 P.2d 668 (1984). Under ER 403, unfair prejudice must substantially outweigh the probative value. Lockwood, 44 Wn.App. at 350. Here, there may have been prejudice but, on balance, it did not substantially outweigh the probative value of the evidence.

Moreover, even if evidence of the seized drugs was improperly admitted, "that error is not prejudicial unless, within reasonable probabilities, the outcome of the trial would have been materially affected had the error not occurred." State v. Tharp, 96 Wn.2d 591, 599, 637 P.2d 961 (1981). In light of the evidence as a whole, any error here was harmless.

IT IS FURTHER ORDERED that the motion to publish this court's opinion of June 3, 2008, is hereby denied.

UNPUBLISHED OPINION

Kulik, A.C.J.

Arlin Jordin appeals his convictions for indecent liberties and second degree rape. Mr. Jordin contends the trial court erred by (1) admitting evidence of his past conduct to show a common plan or scheme, (2) concluding that he consented to the search of his apartment, and (3) admitting evidence of the drugs seized from his home. Mr. Jordin also asserts that the search warrant was constitutionally defective and that his due process rights were violated by the State's failure to preserve a portion of the victim's urine sample for testing by the defense. We conclude that Mr. Jordin's contentions are without merit and affirm his convictions for indecent liberties and second degree rape.

FACTS

The State charged Mr. Jordin with indecent liberties and second degree rape. The information alleged that he knowingly had sexual contact and intercourse with Charmaine Getchell while she "was incapable of consent by reason of being physically helpless or mentally incapacitated" in violation of RCW 9A.44.050(1)(B) and .100(1)(B). Clerk's Papers (CP) at 1.

Mr Jordin owns and rents apartments in Spokane. Ms. Getchell testified that she accepted drinks from Mr. Jordin while visiting at his apartment. She remembered "kind of hitting a wall suddenly." Report of Proceedings (RP) (May 3, 2006) at 559. The next thing she knew, Mr. Jordin was pressing her back on the couch and kissing her. She said "no." RP (May 3, 2006) at 562. Then, she was naked in Mr. Jordin's bed and he was on top of her, having intercourse with her. Ms. Getchell believes that Mr. Jordin drugged her.

The next morning, Ms. Getchell recalled being awakened by Mr. Jordin at 7:00 am. She went home. Ms. Getchell's roommate, Mary Morton, stated that Ms. Getchell was pale, shaking, and vomiting. Ms. Morton encouraged Ms. Getchell to go to the hospital. After Ms. Getchell arrived at Holy Family Hospital, hospital personnel called police. Hospital personnel then collected a urine sample and did a quick screening test of the urine. The urine sample was then sent to two laboratories near the hospital where two other tests were performed. The initial screening test was positive for benzodiazepines,^[1] THC,^[2] and alcohol. When the second and third tests were negative, the first test proved to be a false positive for benzodiazepines. The additional tests identified alcohol and marijuana in Ms. Getchell's urine. Benzodiazepine was not found nor were flunitrazepam^[3] or GHB,^[4] two date rape drugs. After these three tests were performed, the urine sample was depleted.

Pictures taken at the hospital showed several bruises on Ms. Getchell's arm. Ms. Getchell had a headache, was nauseous, and repeatedly vomited. Mr. Jordin's semen was found on Ms. Getchell. Later, police searched Mr. Jordin's apartment.

At trial, a forensic chemist testified that the drugs found in Mr. Jordin's apartment included alprazolam, bupropione, cyclobenzaprine, temazepam, trazodone, and triazolam.

Three women testified about their similar experiences where they had a drink with Mr. Jordin, ending up naked with him, and having little or no memory of what had occurred.

Mr. Jordin testified that both he and Ms. Getchell were intoxicated but they knew what was going on. Mr. Jordin admitted having oral sexual contact and making an unsuccessful attempt at vaginal intercourse. Mr. Jordin also denied having sexual contact with any of the three other women who testified.

The jury convicted Mr. Jordin of one count of indecent liberties and one count of second degree rape. This appeal followed.

Motions

Mr Jordin filed several pretrial motions including: a motion to dismiss, a motion to suppress Mr. Jordin's statements to police, and motions in limine to suppress the State's proposed evidence as to a common scheme or plan and to limit expert testimony as to what might have been discovered if the urine sample had been available for testing.

Motion to Dismiss.

Mr. Jordin filed a motion to dismiss based on the State's failure to preserve a portion of the urine sample for defense testing. The trial court denied the motion, concluding that while the sample was "'potentially useful' evidence," the State's inability to preserve a portion for further testing was not the result of bad faith. CP at 65.

Motion to Suppress—CrR 3.5.

Officers went to Mr. Jordin's apartment on December 3. The officers told Mr. Jordin they wanted to talk to him about allegations made by a woman who had been in Mr. Jordin's apartment before Thanksgiving. Mr. Jordin identified the woman as Charmaine Getchell. Mr. Jordin told the officers about his evening with Ms. Getchell.

Officers asked Mr. Jordin for permission to search for drugs. Mr. Jordin gave permission for the search. During the search, the officers told Mr. Jordin they had a search warrant to look for drugs. The officers found numerous prescription drugs. The officers arrested Mr. Jordin. In the patrol car following his arrest, Mr. Jordin stated: "'You must get a lot of calls from girls who drink too much and wake up intoxicated in the morning.'" RP at (May 3, 2006) at 662.

The trial court ruled that Mr. Jordin's statements before his arrest were admissible because they were not the product of custodial interrogation. The court also concluded that the statements made in the patrol car enroute to the jail were voluntary.

Motion to Suppress—CrR 3.6.

On November 25, Officer Mylissa Coleman obtained a warrant to search for drugs at Mr. Jordin's apartment. The warrant authorized the seizure of "Benzodiazapine [sic] based medications including but not limited to Diazapam, Alprazolam, Temazepam, and Rohypnol." Ex. D4. The warrant affidavit recounted Officer Coleman's conversation with medical staff in which the officer was told that the first laboratory test result showed that Ms. Getchell's urine tested positive for benzodiazepines.

Officer Coleman attempted service of the search warrant twice before successfully serving it on Mr. Jordan on December 3. When the warrant was served, Officer Coleman did not know about the second test result. The second test showed a negative result, indicating that benzodiazepines were not present. Officer Coleman did not tell the magistrate that the initial test was subject to false positive results and could be subjected to confirmation testing. Officer Coleman also did not tell the magistrate that the first test was positive for THC and alcohol. The trial court concluded that while the results of the second test should have been given to the magistrate, the failure to do so did not negate probable cause to search Mr. Jordin's apartment.

The trial court denied Mr. Jordin's motion to suppress the drugs found at his apartment. The court's findings and conclusions state that Mr. Jordin had given a valid consent to search, that there was no evidence of coercion, and the scope of the search was clear and not exceeded by the officers.

Motion—ER 404(b).

The State sought to introduce evidence under ER 404(b) to show Mr. Jordin was acting pursuant to a common scheme or plan. In a pretrial hearing, five women testified about incidents involving Mr. Jordin.

Laura Schmitz met Mr. Jordin in early 1998 when she responded to an advertisement for an apartment. Ms. Schmitz agreed to meet Mr. Jordin so that she could see the apartment. The apartment available was actually a part of Mr. Jordin's apartment.

After showing Ms. Schmitz the apartment, Mr. Jordin asked her to come with him while he did some errands. Mr. Jordin poured margaritas for them to drink while they rode in his Jaguar. When they...