State v. Trickler

• Decision Date: 12 June 2001
• Docket Number: No. 19335-7-III.,19335-7-III.
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Kelly Fraser TRICKLER, Appellant.

25 P.3d 445

106 Wash.App. 727

STATE of Washington, Respondent, v. Kelly Fraser TRICKLER, Appellant.

No. 19335-7-III.

Court of Appeals of Washington, Division 3, Panel Four.

June 12, 2001.

William D. Edelblute, Spokane, for Appellant.

Kevin M. Korsmo, Andrew J. Metts, III, Deputy Prosecuting Attorneys, for Respondent.

SCHULTHEIS, J.

Kelly Trickler appeals the judgment and sentence entered after a jury found him guilty of possession of a stolen credit card and being a felon in possession of a firearm. He contends the trial court erred when it would not allow him to plead guilty to the stolen property count and proceed to trial on only the weapon charge. He also claims the trial court abused its discretion regarding certain evidentiary issues. Because we agree the trial court abused its discretion when it admitted certain evidence at trial, we reverse the conviction and remand for a new trial.

FACTS

On February 8, 2000, Spokane police officers responded to a call for assistance regarding allegedly stolen property. They arrived at 3014 North Standard, a home owned by Thomas Wiley. Mr. Wiley explained to them that he had entered into a lease agreement with Kelly Trickler (whom he knew as Kelly Lane). After Mr. Wiley found some of his personal property missing from boxes in a storage area that was utilized by Mr. Trickler, an eviction notice was served, which required Mr. Trickler to vacate the premises on or before February 8, 2000. When Mr. Wiley arrived at the Standard residence on that date to see if Mr. Trickler had moved out, he recognized some of his personal property located inside Mr. Trickler's vehicle. Mr. Wiley then called the police.

After being informed about his landlord's allegations of stolen property, Mr. Trickler was cooperative when the police asked if they could search his car and bedroom for evidence of Mr. Wiley's missing property. Mr. Trickler voluntarily signed a consent to search card. During the search of Mr. Trickler's vehicle, several items of personal property belonging to Mr. Wiley were found. Mr. Trickler admitted that certain items found in his car did belong to Mr. Wiley and must have been put into his car by mistake. During the search, a credit card belonging to Kathleen D. Nunez was found in a black attaché case in the back of Mr. Trickler's car.

After the search of the vehicle was completed the officers returned to the house to search the room that Mr. Trickler rented. During an initial protective sweep of the room Officer Brian Tafoya noticed a .32 caliber revolver in a leather holster lying in plain view on a dresser. The officer secured it and noticed the weapon was loaded.

Mr. Trickler was arrested at the scene and transported to the jail. After some initial investigation, he was charged in the Spokane County Superior Court with second degree possession of stolen property and first degree unlawful possession of a firearm. Shortly after his arrest, Mr. Trickler allegedly phoned Mr. Wiley's son, Matt, who also lived at the residence on Standard. Matt and Mr. Trickler had been roommates for several months and Matt said he recognized Mr. Trickler's voice on the phone. Mr. Trickler allegedly told Matt that he had better get his father, Mr. Wiley, to drop the charges or Mr. Trickler would "drop" Mr. Wiley. Report of Proceedings at 167.

The State filed an amended information, which included the charge of possession of drug paraphernalia. However, the court denied the State's attempt to amend the information and add charges so close to trial. A pretrial CrR 3.5 hearing was held to determine whether any verbal statements could be suppressed. The court determined that certain statements, not relevant to this appeal, would be suppressed. It reserved its ruling on the issue of whether Mr. Trickler's alleged threat would be allowed as evidence at trial until the State made an offer of proof regarding the substance and surrounding circumstances of the hearsay conversation.

Mr. Trickler's case was tried before a jury. At some point during the jury selection process, Mr. Trickler requested an opportunity to plead guilty to the possession of stolen property charge. He told the court he was willing to proceed to a trial on the merits on the weapon charge. After hearing the arguments of counsel, the court denied Mr. Trickler's request. The court also denied Mr. Trickler's motion to dismiss at the end of the State's case in chief. Mr. Trickler was found guilty as charged and sentenced within the standard range. This timely appeal resulted.

DISCUSSION

Mr. Trickler first contends that the trial court erred when it denied his request to enter a guilty plea to the possession of stolen property charge after the trial had begun. He claims that he has a right to plead guilty pursuant to CrR 4.2(a), and the trial court's violation of this right was prejudicial. The State responds that Mr. Trickler has demonstrated neither a legal right, which the trial court transgressed, nor resulting prejudice from the trial court's denial of his request to plead guilty.

There is no constitutional right to enter a guilty plea. State v. Ford, 125 Wash.2d 919, 923, 891 P.2d 712 (1995). However, this state has established a right to plead guilty through the adoption of CrR 4.2(a) (defendant may, at arraignment, plead not guilty, not guilty by reason of insanity, or guilty). In State v. Martin, 94 Wash.2d 1, 5, 614 P.2d 164 (1980), the Supreme Court held: "[W]e have been informed of no statute or rule of court which grants a trial court authority to decline a plea of guilty made competently, knowingly, voluntarily, unconditionally, unequivocally and on advice of counsel." Mr. Trickler urges the panel to follow that rule of law. That holding, however, was modified in State v. James, 108 Wash.2d 483, 488, 739 P.2d 699 (1987) (unconditional right to plead guilty does not apply in subsequent proceedings if defendant voluntarily, knowingly, and intelligently enters a plea of not guilty at arraignment).

Although the arraignment hearing was not transcribed for the record it is clear that Mr. Trickler pleaded not guilty because the case proceeded to trial. As such, Mr. Trickler took advantage of his unconditional right to enter a plea at arraignment pursuant to CrR 4.2(a). Following the reasoning of James, the trial court was not required to accept his change of plea during the jury selection process. As such, the trial court did not abuse its discretion when it denied Mr. Trickler's request to plead guilty to the possession of stolen property charge.

Next, Mr. Trickler claims that the trial court erred when it permitted at trial evidence of numerous uncharged bad acts, such as testimony regarding items of personal property belonging to Mr. Wiley that were found in Mr. Trickler's car as he was moving out of Mr. Wiley's residence. He contends that had the trial court properly weighed the probative value of the evidence versus its prejudicial effect under ER 403 it would have been apparent that evidence of the uncharged bad acts was highly prejudicial and should not have been admitted at trial.

Evidence of other crimes, wrongs, or acts is inadmissible to prove the character of a person or to show that a person acted in conformity with that character. ER 404(b). However, such evidence may be admissible for other purposes, including intent, knowledge, or absence of mistake. Before a trial court may admit evidence of other crimes or misconduct, it must: (1) find by a preponderance of the evidence that the misconduct occurred; (2) determine whether the evidence is relevant to a material issue; (3) state on the record the purpose for which the evidence is being introduced; and (4) balance the probative value of the evidence against the danger of unfair prejudice. State v. Brown, 132 Wash.2d 529, 571, 940 P.2d 546 (1997). A trial court's decision to admit evidence of a defendant's prior acts is reviewed for abuse of discretion. State v. Barragan, 102 Wash.App. 754, 759, 9 P.3d 942 (2000).

At trial, the State was allowed to introduce evidence that several items of personal property belonging to Mr. Wiley were found in Mr. Trickler's possession at the same time the credit card at issue was discovered. The parties agree that the court followed the test set forth above regarding the first three requirements. Mr. Trickler, however, contends that the balancing test, the fourth requirement, was not met, which resulted in reversible error. We agree.

The trial court must balance the probative value of the evidence against any unfair prejudicial effect and this balancing test must be conducted on the record. Doubtful cases should be resolved in favor of the defendant. State v. Wade, 98 Wash.App. 328, 334, 989 P.2d 576 (1999). From this record we cannot discern whether the trial court balanced the probative value against the prejudicial impact of the evidence of other stolen property found in Mr. Trickler's possession at the same time the stolen credit card was discovered. Our independent review leads us to conclude the evidence was more prejudicial than probative.

Mr. Trickler was being tried for being in possession of a stolen credit card belonging to Kathleen Nunez. Most of the evidence the State introduced at trial concerned items of personal property belonging to others. For example, Mr. Wiley was allowed to testify about missing surgical equipment, a seat to a Mustang automobile, an antique safe, and tools. Matt Wiley told the jury that he found some of his father's equipment and his missing pocketknife in the glove box of Mr. Trickler's car. Police officers testified that stolen checkbooks and identification cards were found in Mr. Trickler's possession. This was highly prejudicial because Mr. Trickler was not on trial for possessing any of these items.

The State claims it was necessary to introduce all the above evidence under a res gestae theory. It maintains that the discovery of the other allegedly stolen...