State v. Wade

• Decision Date: 16 October 1998
• Docket Number: No. 22287-6-II,22287-6-II
• Citation: 966 P.2d 384,92 Wn.App. 885
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Charles Fidel WADE, Appellant.

Page 885

92 Wn.App. 885

966 P.2d 384

STATE of Washington, Respondent, v. Charles Fidel WADE, Appellant.

No. 22287-6-II.

Court of Appeals of Washington Division 2.

Oct. 16, 1998.

Patricia Anne Pethick, Tacoma, for Appellant (Court Appointed).

Kathleen Proctor, Pierce County Deputy Prosecuting Attorney, Tacoma, for Respondent.

HUNT, Judge.

Charles Fidel Wade appeals his juvenile conviction for possession of cocaine with intent to deliver. He contends that the trial court erroneously admitted circumstances of past misconduct under ER 404(b) and his prior statement, that he does not use cocaine, to prove intent in the current charge. We agree. We reverse and remand for entry of judgement and re-sentencing on the lesser-included charge of possession.

FACTS

Officer Joe Mettler of the Tacoma Police routinely patrols in the Hilltop area of Tacoma. At about 3:00 PM on February 9, 1997, he turned southbound on 'M' Street and observed Charles Wade walking away from a white Chevrolet van. Mettler stopped his police car, got out, and invited Wade to come over and talk for a minute. Wade verbally refused and walked away. Mettler continued to observe Wade.

As Wade walked away, Mettler saw him fumbling with either his coat pocket or pants pocket. Mettler then saw a little plastic baggy-type wrapper drop to the ground and Wade began running. Mettler recovered the baggy, which contained nine (9) rocks of suspected cocaine. Mettler ran back to his vehicle and drove toward where he had last seen Wade, but Wade had disappeared from sight.

Wade was subsequently found and apprehended. The rocks were tested and found to contain 1.3 grams of cocaine.

On February 10, 1997, the State charged Wade in juvenile court with one count of possession of a controlled substance with intent to deliver, in violation of RCW 69.50.401(a)(1)(i). The State filed a motion in limine seekingadmission of two prior drug dealing acts under ER 404(b). The first act occurred on October 26, 1995, fourteen months before the current offense. Wade had pled guilty to possession with intent to deliver after selling cocaine to a named police informant in the Hilltop area. The State introduced this evidence through the testimony of the arresting officer and the informant who had purchased the drugs from Wade.

A second possession with intent to deliver charge had arisen ten months earlier when police observed Wade in the Hilltop area conducting a hand-to-hand transaction with another man. The State introduced this evidence through the testimony of the arresting officer.

The court granted the State's motion in limine, ruling the prior acts admissible as evidence of intent under ER 404(b). ¹ During trial, Wade renewed his objection. Adhering to its prior ruling, the trial court again ruled it admissible as evidence of intent.

On May 8, 1997, the juvenile court found Wade guilty of possession of a controlled substance with intent to deliver. On May 22, 1997, he was sentenced to 52 to 65 weeks in the juvenile rehabilitation center.

ANALYSIS

Absent an abuse of discretion, we will not disturb on appeal a trial court's evidentiary ruling. State v. Lane, 125 Wash.2d 825, 889 P.2d 929 (1995). An abuse of discretion occurs when the trial court bases its decision on untenable grounds or exercises discretion in a manner that is manifestly unreasonable. State v. Valdobinos, 122 Wash.2d 270, 279, 858 P.2d 199 (1993). "[E]videntiary errors under ER 404 are not of constitutional magnitude" and are harmless unless the outcome of the trial would had differed had the error not occurred. State v. Jackson, 102 Wash.2d 689, 695, 689 P.2d 76 (1984).

1. Prior Acts

a. ER 404(b)

The purpose of the rules of evidence is to secure fairness and to ensure that truth is justly determined. To that end, ER 404(b) forbids evidence of prior acts that tend to prove a defendant's propensity to commit a crime, but allows its admission for other limited purposes:

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. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Here the trial court admitted evidence of Wade's prior sales of cocaine to prove intent to sell the cocaine in his possession as charged.

To determine admissibility of evidence under ER 404(b), the trial court must engage in a three-part analysis established in State v. Saltarelli, 98 Wash.2d 358, 362, 655 P.2d 697 (1982). First, the court must identify the purpose for which the evidence will be admitted. Second, the evidence must be materially relevant. Third, the court must balance the probative value of the evidence against any unfair prejudicial effect the evidence may have upon the fact-finder. Saltarelli, 98 Wash.2d at 362-66, 655 P.2d 697. Further, to avoid error, the trial court must identify the purpose of the evidence and conduct the balancing test on the record. State v. Jackson, 102 Wash.2d 689, 693-94, 689 P.2d 76 (1984). Doubtful cases should be resolved in favor of the defendant. State v. Smith, 106 Wash.2d 772, 776, 725 P.2d 951 (1986).

Regardless of relevance or probative value, evidence that relies on the propensity of a person to commit a crime cannot be admitted to show action in conformity therewith. Saltarelli, 98 Wash.2d 358, 362, 655 P.2d 697; MCCORMICK ON EVIDENCE 190 at 811 (4th ed.1992). As Justice Cardozo eloquently explained:

It is for ordinary minds, and not for psychoanalysts, that our rules of evidence are framed. They have their source very often in considerations of administrative convenience, of practical expediency, and not in rules of logic. When the risk of confusion is so great as to upset the balance of advantage, the evidence goes out.

Shepard v. United States, 290 U.S. 96, 104, 54 S.Ct. 22, 25-26, 78 L.Ed. 196 (1933).

When the State offers evidence of prior acts to demonstrate intent, there must be a logical theory, other than propensity, demonstrating how the prior acts connect to the intent required to commit the charged offense. That a prior act "goes to intent" is not a "magic [password] whose mere incantation will open wide the courtroom doors to whatever evidence may be offered in [its name]." Saltarelli, 98 Wash.2d at 364, 655 P.2d 697, citing United States v. Goodwin, 492 F.2d 1141, 1155 (5th cir.1974). ²

b. Inference of Intent

Propriety

The inquiry here is whether it is legally appropriate to infer from Wade's past acts intent to deliver in the present act. Wigmore describes the nature of this inference as at least a three-step process because "an act is not evidential of another act"; there must be an intermediate step in the inference process that does not turn on propensity. "[I]t cannot be argued: Because A did an act last year, therefore he probably did the act X as now charged." WIGMORE ON EVIDENCE 192, at 1857.

When the State seeks to prove the element of criminal intent by introducing evidence of past similar bad acts, the State is essentially asking the fact-finder to make the following inference: Because the defendant was convicted of the same crime in the past, thus having then possessed the requisite intent, the defendant therefore again possessed the same intent while committing the crime charged. If prior bad acts establish intent in this manner, a defendant may be convicted on mere propensity to act rather than on the merits of the current case.

Use of prior acts to prove intent is generally based on propensity when the only commonality between the prior acts and the charged act is the defendant. To use prior acts for a non-propensity based theory, there must be some similarity among the facts of the acts themselves. Wigmore calls this the "abnormal factor" that ties the acts together. WIGMORE, § 302. Once this connection is established, then other reasonable inferences, such as intent or motive, can logically flow from introduction of the prior acts.

In State v. Holmes, the defendant was charged with burglary; the State sought to introduce previous theft convictions to show intent in the charged act. State v. Holmes, 43 Wash.App. 397, 717 P.2d 766 (1986). The court held that before prior acts can be admitted to show intent, the prior acts "must have some additional relevancy beyond mere propensity." Holmes, 43 Wash.App. at 400-401, 717 P.2d 766. This additional relevancy turns on the facts of the prior acts themselves and not upon the fact that the same person committed each of the acts. Otherwise, the only relevance between the prior acts and the current act is the inference that once a criminal always a criminal. It is the facts of the prior acts, not the propensity of the actor, that establish the permissive inference admissible under ER 404(b).

Using Wade's prior bad acts to prove current criminal intent, however, is tantamount to inviting the following inference: Because Wade had the same intent to distribute drugs previously, he must therefore possess the same intent now. ER 404(b) forbids such inference because it depends on the defendant's propensity to commit a certain crime. ³ 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. 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). For this reason, we do not generally allow propensity, or character evidence, to establish a basis for criminal conviction.

c. Record

Here the trial court admitted evidence of Wade's prior offenses to prove intent, on condition that the prosecution tie the offenses to intent. Thus, although the trial court...