State v. Smith

• Decision Date: 30 December 2014
• Docket Number: 31698-0-III
• Court: Washington Court of Appeals
• Parties: STATE OF WASHINGTON, Respondent, v. STEVEN LEE SMITH, Appellant.

STATE OF WASHINGTON, Respondent, v. STEVEN LEE SMITH, Appellant.

No. 31698-0-III

Court of Appeals of Washington, Division 3

December 30, 2014

UNPUBLISHED OPINION

Fearing, J.

Steven Lee Smith appeals his conviction for possession of a stolen firearm in violation of RCW 9A.56.310. On appeal, Smith alleges (1) the trial court erred by admitting into evidence the firearm in question because the State failed to prove that the firearm was stolen; (2) the trial court erred when it admitted evidence of other bad acts; and (3) the State's evidence was insufficient to support his conviction for possession of a stolen firearm. We affirm Smith's conviction.

FACTS The firearm the State of Washington alleged Steven Smith stole is a Hi-Point model 995 9mm rifle. On January 2, 2013 Lieutenant Reggie Bartkowski of the Goldendale Police Department received a report about the Hi-Point stolen rifle. The owner reported that the rifle was stolen from his vehicle on December 24, 2012, while the vehicle sat parked in the city of Goldendale. The owner did not know the serial number of the rifle, and Lieutenant Bartkowski was unable to garner the serial number from the store where the owner purchased the rifle. Bartkowski entered the owner's description of the 9mm rifle into the department's computer system.

On February 4, 2013, a confidential informant informed Klickitat County Detective Michael Kallio that he or she saw three firearms, including a 9mm rifle, at a home belonging to Steven Smith. Detective Kallio knew Smith to be a convicted felon. Based on the information from the informant, Kallio procured a search warrant for Smith's home. Before executing the search warrant, Detective Kallio learned of the stolen Hi-Point rifle.

On February 5, 2013, law enforcement officers executed the search warrant on Steven Smith's residence. During the execution of the search warrant, officers arrested Smith at his residence. After taking Smith into custody, Detective Michael Kallio read Smith his Miranda warnings. While still at Smith's residence, Smith identified to officers the location of six firearms inside his residence. Smith also informed officers he hid a 9mm Hi-Point rifle in the back of his Dodge Durango.

Following Steven Smith's disclosure, Detective Kallio secured a search warrant for Smith's Durango. Officers found the Hi-Point rifle in a hidden storage compartment in the back of Smith's vehicle. The Hi-Point rifle was the only firearm recovered outside of Smith's residence.

On February 6, 2013, Steven Smith gave Detective Kallio a recorded statement. Smith stated he purchased the Hi-Point rifle in Goldendale from two individuals for $50 and four grams of methamphetamine. The two individuals from whom Smith purchased the Hi-Point rifle then divided the money and methamphetamine between themselves and a third individual.

On February 7, 2013, the Goldendale Police Department closed its case file on the Hi-Point rifle reported stolen January 2.

PROCEDURE

On February 6, 2013, the State of Washington charged Steven Smith with seven counts of unlawful possession of a firearm in violation of RCW 9.41.040. These seven charges are not the subject of this appeal. On March 18, 2013, the State amended the information to include possession of a stolen firearm, in violation of RCW 9A.56.310(1). The Hi-Point rifle was the basis of the new charge.

Prior to trial, the State moved in limine to present ER 404(b) evidence of "other acts" of Steven Smith. Clerk's Papers (CP) at 103. The State sought to introduce testimony from Charles Lloyd and Detective Michael Kallio that; (1) Steven Smith attempted to repay a debt by supplying his creditor with firearms; (2) Smith acquired the Hi-Point rifle from two individuals for $50 and four grams of methamphetamine; (3) Smith knew that all guns he previously purchased from one of the sellers were stolen; and (4) one or two days before Smith's arrest, he was in his Durango with Lloyd, the Durango was "armed to the teeth, " and Smith told Lloyd that all of the firearms in the vehicle including the Hi-Point rifle, were stolen.

On April 15, 2013, at the motion in limine hearing, the State posited that the proffered testimony served the purpose of establishing that Steven Smith knew the Hi-Point rifle was stolen, an element of the crime. During the motion hearing the State explained:

[W]e want to keep this related to the gun charges. Mr. Lloyd also has said in his interviews that he was involved in dealing drugs for Mr. Smith and various other things that he has testified to, but the state wishes to keep this fairly narrow for the purposes just of the gun charges.

Mr. Smith has admitted to possession of the - of the guns. In fact when he spoke to Det. Kallio he even told him where some of them were. The key issue in this case is Count 8, and that's the possession of the stolen firearm. Mr. Smith is alleging that he had no knowledge that that firearm was stolen.

Report of Proceedings (RP) at 55.

At the hearing, the State clarified that Charles Lloyd would testify that (1) Steven Smith attempted to repay a debt by procuring between 1, 000 and 2, 000 firearms for the creditor; (2) the individual from whom Smith purchased the Hi-Point rifle had supplied Smith with firearms before, the firearms were stolen, and Smith knew they were stolen; and (3) the night before Smith's arrest, Smith and Lloyd traveled in Smith's Dodge Durango, wherein Smith acknowledged that he possessed stolen firearms in the vehicle, one of which was the Hi-Point rifle. The State argued that the testimony related to Smith's knowledge that the Hi-Point rifle was stolen, an element of count VIII, and was thus proper under ER 404(b). In other words, the State argued that Lloyd's testimony rendered the fact that the rifle was stolen, and Smith knew of its pilfered nature, more likely than not. The State also asserted that testimony concerning the transaction during which Smith obtained the Hi-Point rifle illuminated the circumstances under which he gained possession and further supported the State's burden of proof. The State recognized prejudice to Steven Smith of Charles Lloyd's testimony, but noted the close relevance of the testimony to the elements of the charges. As noted by the State, it would not offer the testimony unless it had some prejudice to Steven Smith. The State specifically remarked that the probative value of the evidence outweighed the prejudice.

Steven Smith objected to the State's offer of testimony on several grounds. First, the hearing was only two days before trial and the State had not provided Smith with a copy of the police report indicating that the Hi-Point rifle found in his possession was stolen. Nor had the State identified the owner of the firearm. Second, Charles Lloyd's potential testimony regarding repayment of a debt with 2, 000 firearms is preposterous, let alone, irrelevant, given that law enforcement found only seven firearms in Smith's possession, two of which belonged to others. Third, Smith argued that the prejudicial impact of Lloyd's testimony far exceeded the probative value, since the testimony characterized Smith as a "large scale gun dealer" trafficking in stolen firearms, when the State had not charged Smith with trafficking firearms. RP at 65. Fourth Smith objected to testimony of the low price that he allegedly paid for the Hi-Point rifle, because the testimony unfairly portrayed him as a drug dealer, which was also not an issue before the jury.

After affording extensive argument, the trial court granted the State's motion in limine because the State intended to use the testimony to establish elements of the crime of possession of a stolen firearm, not for the purpose of propensity evidence. The trial court declared on the record:

THE COURT: Well, the incorrect use of 404(b) is where the state tries to get evidence in front of the jury around the corner, as it were, by insisting that it's relevant and that what they're really trying to do is get propensity evidence in front of the jury. And that's - that's an improper use of 404(b).

The proper use of 404(b) is where the state is attempting to get relevant evidence in front of the jury that are admissible for some other purpose that is a relevant purpose which is not propensity evidence. And I believe that's the case here, and I'm granting the state's motion.

The defendant was attempting to fill a large purchase order. That goes directly and has a nexus with the state's theory of the case that the defendant had in his possession several firearms and there was one stolen - one stolen firearm that he knew was stolen. That he acquired the gun (inaudible) in Count 8 from two individuals - that goes to the defendant's knowledge and the possible inference by the jury that in fact he knew it was stolen.

That the defendant knew all the guns the defendant purchased in the past from at least one of these individuals had been stolen is admitted for the same reason.

This is all through testimony of a witness, obviously, and the jury will make what they want of that. They're going to test Mr. Lloyd's veracity and credibility, and we'll have to let them do that.

The conversation in the car also seems to me to be relevant, more probative than prejudicial, and a proper usage of 404(b) to the extent that it is.

RP at 71-72.

On April 17, 2013, the first day of trial, the State informed the trial court that it had recently received the stolen firearm police report, but the report lacked any identifying serial number for the Hi-Point rifle. The court ruled that because of the State's failure to provide the report to Smith, the State could not reference the report during trial. The trial court, however, authorized Lieutenant Reggie Bartkowski to testify...