Opinion
No. 53483-1-I
Filed: May 2, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Whatcom County. Docket No: 03-1-00693-1. Judgment or order under review. Date filed: 11/20/2003. Judge signing: Hon. Steven J Mura.
Counsel for Appellant(s), Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St. Seattle, WA 98122.
Lisa Nicole Ellis, Ellis Li McKinstry PLLC, 601 Union St Ste 4900, Seattle, WA 98101-3906.
D Hinton — Informational Only (Appearing Pro Se), 815 21st St. #8, Bellingham, WA 98225.
Eric J. Nielsen, Attorney at Law, 1908, E Madison St, Seattle, WA 98122.
Counsel for Respondent(s), Rosemary Hawkins Kaholokula, Whatcom Cty Pros Atty Office, 311 Grand Ave Ste 201, Bellingham, WA 98225-4038.
Kimberly Anne Thulin, Whatcom Cty Pros Atty's Office, 311 Grand Ave Ste 201, Bellingham, WA 98225-4038.
Dwight Hinton was stopped while crossing the border at Peace Arch on his way back into the United States. A border search of his car yielded cocaine and drug paraphernalia. Hinton claimed the drugs were not his and he was not aware they were in his car. He claimed that either thieves who had recently stolen his car or a prostitute who smoked crack cocaine in his car hid the drugs. He was charged and convicted by a jury of one count of possession of a controlled substance.
Hinton appeals the trial court's refusal to give his requested jury instruction that `[p]roximity alone without proof of dominion and control over the substance is insufficient to establish constructive possession.' Although the requested instruction was not an incorrect statement of the law, the instructions provided to the jury were correct and allowed Hinton to argue his theory of the case.
Hinton also appeals the trial court's refusal to admit the reputation testimony of two of his reputation witnesses, Dan Bilson and Thomas Richardson. The reputation testimony of these witnesses was properly excluded. We affirm.
FACTS
In early May, 2003, Dwight Hinton's car was stolen in Seattle. It was recovered by Edmonds police officers. Officer Jeff Rogers testified that prior to returning the vehicle, he conducted a systematic search of the car, including a search of the steering column, with a flashlight and with his hands. He found nothing out of place. The officers did not disassemble the steering column or call the K-9 unit. Hinton picked up his car on May 16, 2003, with his friend Dan Bilson. Bilson drove Hinton's car to a mechanic to have it checked. Bilson did not notice any drugs in the car.
After work on May 20, 2003, Hinton drove north to Vancouver, Canada to go `clubbing.' He first met two prostitutes. One of them had been in the front seat of his car, the other in the back seat. Hinton was in the driver's seat the whole time they were in the car, except when he got up to put some valuables in the trunk. The prostitutes did not change their seats while he was out of the car. They also did not smoke crack in his car.
Hinton later picked up a third prostitute. She took the money Hinton gave her, bought cocaine, and smoked some in the back seat of Hinton's car. She also sat in the front seat next to Hinton. Hinton testified that he `never left the driver's seat' and stayed in the front seat the whole time the third prostitute was in the car.
On his way to Bellingham from Vancouver, Hinton was stopped at the border crossing and taken into a waiting area. During a border search of his car, a single-cigarette tube containing crack cocaine was discovered sticking out from under the steering column of his car. The Department of Homeland Security inspector searching Hinton's car testified that he looked up underneath the gray dash and saw the white tube sticking out. It was obviously not part of the car and was easily reachable from the driver's seat. The inspector also found another empty single-cigarette tube and a glass pipe in the back seat.
Hinton waited for about 20 minutes in the main waiting area and was then escorted to an interrogation room. Hinton sat on a bench alone in the room. Two agents, Tumber and Smith, entered the room. Later, Agent Poore came into the room. Hinton initially denied knowledge of the drugs, any criminal history, or a previous incident at the border. Hinton then admitted the circumstances of his trip to Vancouver and that he had smoked cocaine in his car with some prostitutes. Hinton admitted the car and the drugs found in it were his. Hinton repeated some admissions to Detective Slick of the Whatcom County Sheriff's office during transport to jail: that he had smoked crack in Vancouver, but that he did not know how the cocaine got into the steering column of his car.
Hinton testified that Agents Tumber and Smith claimed to be his advocates. Prior to Agent Poore's arrival they had some discussion during which Hinton did not make an incriminating statement. Then Agent Poore came into the room and challenged Hinton by presenting proof of Hinton's criminal history. Hinton testified that he admitted to his `colorful past' but was no longer like that. Hinton testified that Poore said Hinton was a criminal, had smuggled drugs across the border, and had committed an international offense. Hinton testified he took Poore's statement lightly and tried to make a joke of it by making sarcastic comments, such as `well, did you find the guns in the tires?' Hinton testified that he was scared based on a prior experience with police brutality in California. Hinton testified that the tenor of the conversation, the accusatory tone of Poore's voice, and Poore's body movement were threatening. Hinton testified that although he indicated to the three agents that the drugs were in his car, that the car was his, and that the drugs were in his possession, he actually did not know the drugs were in the car. He denied possessing any narcotics.
Hinton argued that he unwittingly possessed the cocaine, suggesting that either the prostitute or the thieves who stole his vehicle placed the cocaine there. Hinton also argues that the trial court failed to properly instruct the jury on constructive possession. During trial Hinton sought to present character evidence from three witnesses. The trial court permitted Toby Sala to testify as to Hinton's reputation for truthfulness. The court refused to admit the reputation testimony of the other two witnesses, Dan Bilson and Thomas Richardson. Hinton argues this was error.
ANALYSIS A. Constructive Possession Jury Instruction
Trial courts have considerable discretion in deciding the wording of jury instructions. State v. Castle, 86 Wn. App. 48, 62, 935 P.2d 656 (1997). Instructions are sufficient if they properly inform the jury of the applicable law without misleading the jury, and permit each party to argue its theory of the case. Gammon v. Clark Equip., 104 Wn.2d 613, 617, 707 P.2d 685 (1985). When a general instruction adequately explains the law, a specific instruction is unnecessary. State v. Brown, 132 Wn.2d 529, 605, 940 P.2d 546 (1997).
Hinton proposed the following instruction:
Possession means having a substance in one's custody or control. It may be either actual or constructive. Actual possession occurs when the item is in the actual physical custody of the person charged with possession. Constructive possession occurs when there is no actual physical possession but there is dominion and control over the substance.
Proximity alone without proof of dominion and control over the substance is insufficient to establish constructive possession.
The court instead instructed the jury:
Possession means having a substance in one's custody or control. It may be either actual or constructive. Actual possession occurs when the item is in the actual physical custody of the person charged with possession. Constructive possession occurs when there is no actual physical possession but there is dominion and control over the substance.
Dominion and control need not be exclusive to establish constructive possession.
The court's instruction on possession was based on WPIC 50.03, the instruction used for drug offenses when evidence of constructive possession is sufficient to submit the issue of possession to the jury. 11 Washington Pattern Jury Instructions: Criminal 50.03, at 640 (2d ed. 1994). The last sentence, provided to the jury here, is optional under WPIC 50.03. The `close proximity' paragraph Hinton proposed is based on the discussion of constructive possession in State v. Porter, 58 Wn. App. 57, 791 P.2d 905 (1990).
This court has previously upheld a trial court's decision to give only the standard instruction in cases where the state did not rely on proximity alone to prove possession. In Castle, the defendant asked the court to instruct the jury that `[m]ere proximity of the defendant to an alleged controlled substance is not sufficient evidence to establish possession.' Castle, 86 Wn. App. at 60-61. The defendant in Castle claimed that his car had been stolen, he had recovered it moments before being arrested, and that the drugs found in his car were not his. Castle, 86 Wn. App. at 61. Like Hinton, the defendant in Castle denied constructive possession and claimed unwitting possession. Castle, 86 Wn. App. at 61. This court held that the standard instruction — the same instruction given to Hinton's jury — was a complete statement of the law and allowed the defendant to argue his theory that he did not have constructive possession of the drugs. Castle, 86 Wn. App. at 61-62. Furthermore, this court held the standard instruction's requirement of dominion and control precluded the state from relying on proximity alone to establish possession, and noted that the state in fact had not relied on proximity alone. Castle, 86 Wn. App. at 61-62. Because the jury was properly instructed and the defendant could argue his theory of the case, the trial court did not abuse its discretion in refusing to give the proposed instruction. Castle, 86 Wn. App. at 62.
In State v. Portrey, 102 Wn. App. 898, 903, 10 P.3d 481 (2000), Division Three of this court followed Castle and held that a similar proposed instruction on `mere proximity' was unnecessary. The court agreed that mere proximity is not sufficient to establish constructive possession. Portrey, 102 Wn. App. at 903. However, the court held that the general instruction on constructive possession allowed the defendant to argue his theory that, although he was found near a cluster of marijuana plants, he was not in possession of them. Portrey, 102 Wn. App. at 903. The court also noted that the state presented evidence other than proximity to support constructive possession. Portrey, 102 Wn. App. at 903.
Hinton cites State v. Cantabrana, 83 Wn. App. 204, 208, 921 P.2d 572 (1996), in support of his argument that the trial court's refusal to provide his proposed instruction allowed the jury to base its decision on the fact that drugs were found in Hinton's car. The Cantabrana decision does not support Hinton's argument. In Cantabrana, the court held that a jury cannot infer that a defendant has constructive possession of drugs if the defendant exercised dominion and control merely over the premises where the drugs were found. Cantabrana, 83 Wn. App. at 207-08. The trial court in Cantabrana had instructed the jury that `[c]onstructive possession occurs when there is no actual physical possession but there is dominion and control over the substance or the premises upon which the substance was found.' Cantabrana, 83 Wn. App. at 206-07. Unlike in Cantabrana, Hinton's jury was specifically instructed that constructive possession requires `dominion and control over the substance.' (emphasis added). Therefore, the Cantabrana case is inapposite.
Hinton also cites Porter in support of his argument. In Porter, this court held that the constructive possession instruction given — the same as Hinton's proposed instruction — `amply covered' constructive possession. Porter, 58 Wn. App. at 63. Therefore, under Porter, Hinton's proposed instruction is not an erroneous explanation of the law. To the extent Hinton is arguing that Porter required such an instruction, however, the argument fails. The Porter court did not require the instruction be given. Rather, the Porter court noted that because that instruction had been given, the trial court did not err in refusing to give another requested instruction. Porter, 58 Wn. App. at 62-63. The Porter court made no comment that would entitle a defendant to the instruction Hinton requested. In this case, the general instruction on constructive possession allowed Hinton to argue his theory that, although the cocaine was found in his car, he was not in constructive possession of it. See Castle, 86 Wn. App. at 62; Portrey, 102 Wn. App. at 903. Further, the state presented evidence other than proximity to support constructive possession. For example, the state presented Hinton's admissions to border inspectors and a Whatcom County detective, and corroborated these admissions with other physical evidence found in Hinton's car. We follow Castle and Portrey and hold that the trial court did not err in refusing to give Hinton's proposed jury instruction.
B. Reputation Testimony
The trial court refused to allow the reputation testimony of two of Hinton's three reputation witnesses, Thomas Richardson and Dan Bilson. Washington Evidence Rule 608(a) provides:
Reputation Evidence of Character. The credibility of a witness may be attacked or supported by evidence in the form of reputation, but subject to the limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by reputation evidence or otherwise.
ER 608(a). The application of ER 608(a) has been broken down into five elements:
When presenting reputation testimony, the first requirement is a foundation for the testimony — the knowledge of the reputation of the witness attacked.
Second, the impeaching testimony must be limited to the witness's reputation for truth and veracity and may not relate to the witness's general, overall reputation.
Third, the questions must be confined to the reputation of the witness in his or her community. . . .
Fourth, the reputation at issue must not be remote in time from the time of the trial.
Finally, the belief of the witness must be based upon the reputation to which he has testified and not upon his or her own personal opinion.
5A Karl B. Tegland, Washington Practice: Evidence sec. 608.4, at 357-59 (4th ed. 1999) (footnotes omitted).
1. Dan Bilson Reputation Testimony
Dan Bilson testified in defense of Hinton and provided some evidence of the circumstances surrounding the recovery of Hinton's vehicle after it was stolen. Hinton also sought to have Bilson testify about Hinton's reputation in the community. Outside the presence of the jury, the state had the following discussion with Bilson:
Q So really what you would be testifying to is your opinion as to whether or not you think Mr. Hinton is truthful or not?
A Yes, it would be my opinion.
The court then asked:
THE COURT: Prior to this incident arising, or prior to coming into court today when you were at the RSN board meetings, did the subject of discussion ever come up at those board meetings where people sat around and talked about truth and veracity of any particular person?
THE WITNESS: No.
THE COURT: At the local board meetings, when you were discussing the mental health issues, am I correct in assuming that no discussions were had amongst any of those people about anyone's truth or veracity?
THE WITNESS: Not that I'm aware of. I'm not aware of what others might have been talking.
THE COURT: The St. Luke's general meetings, you hear other subjects talked about and mental health issues?
THE WITNESS: Right.
THE COURT: Do people ever get up and talk about various people being truthful or untruthful?
THE WITNESS: Truthful? Not that I'm aware of. They might complain about services and that was primarily the problem and trying to improve them.
THE COURT: Am I correct in assuming that you have a personal opinion as to Mr. Hinton being a truthful person or not?
THE WITNESS: That's correct.
The court then sustained the objection to Bilson's testimony about Hinton's reputation.
The trial court did not err in excluding Bilson's testimony about Hinton's reputation. Under ER 608(a), reputation evidence based solely on the witness's personal opinion is disallowed. See State v. Land, 121 Wn.2d 494, 500, 851 P.2d 678, (1993) (citing ER 608 comment). In response to questions by both the state and the court, Bilson said that his opinion as to Hinton's truthfulness was a personal opinion not based on discussions with others in his community. Therefore, the trial court properly excluded Bilson's testimony.
2. Thomas Richardson Reputation Testimony
When examining Richardson, the court noted that any testimony about being a hard worker or being involved in the community would not reflect on the reputation for being truthful. Responding to the court's inquiry of Richardson's knowledge of Hinton's reputation for truthfulness and veracity in his community, Richardson discussed an event involving Hinton and a candy sale:
THE WITNESS: The other — within the NAMI group, just as I have described, probably the only one I can remember anyway, it was around the candy sale where that came up in part of the conversation.
THE COURT: Were these four individuals telling you that they believed that he was a truthful person or that Mr. Hinton had a reputation within that group of being a truthful person?
THE WITNESS: The discussion was that he was our leading salesman and the money always came back which was not true for everybody who had sold candy.
THE COURT: So the conversation with these four people was about his being an honest person with the money?
HE WITNESS: Yes. And it's frankly fairly loose. People just go into the office, take a box of candy and sometimes it's written down and sometimes it's not.
. . .
THE COURT: To the extent, if this is a reputation, it's a reputation for honesty, which is different than reputation for truthfulness. And the pertinent trait of character here is not one of honesty or dishonesty with regard to theft issues, it' not a theft issue. It's whether in speaking there's a reputation for being truthful in speech. So I will not allow the inquiry.
Honesty and veracity are not equivalent. See, e.g., State v. Harper, 35 Wn. App. 855, 861, 670 P.2d 296 (1983) (noting that evidence of prior forgeries attacks a reputation for honesty but not veracity). Prior acts of theft are not directly relevant to the witness's propensity for truthfulness and veracity as a witness. State v. Cummings, 44 Wn. App. 146, 152, 721 P.2d 545 (1986). In this case, Richardson's reputation testimony was based on a single act of Hinton relating to theft (or lack of theft). The fact that Hinton was honest in his dealings with relation to the candy sale does not support a reputation for truthfulness in the community.
In addition, Hinton did not establish a proper foundation for admitting Richardson's reputation testimony. `A party seeking to admit evidence bears the burden of establishing a foundation for that evidence.' Land, 121 Wn.2d at 500. To establish a valid community for ER 608(a) purposes, the party seeking to admit the reputation evidence must show that the community is both neutral and general. State v. Lord, 117 Wn.2d 829, 874, 822 P.2d 177 (1991). Some relevant factors to decide whether a community is neutral and general include `the frequency of contact between members of the community, the amount of time a person is known in the community, the role a person plays in the community, and the number of people in the community.' Land, 121 Wn.2d at 500.
The decision as to whether the foundation for a valid community has been established rests within the proper discretion of the trial court. Land, 121 Wn.2d at 500. A trial court abuses its discretion in determining whether a foundation for a valid community has been laid when it acts in a manner that is manifestly unreasonable or based on untenable grounds or reasons. Land, 121 Wn.2d at 500 `An appellate court may affirm a trial court's decision on any theory supported by the record and the law.' State v. Bradley, 105 Wn. App. 30, 38, 18 P.3d 602 (2001).
The foundation laid for Richardson's testimony was insufficient as to the size of the community and the nature of the contacts. In Land, the court accepted a small community where the defendant worked as adequate foundation to allow reputation testimony. Land, 121 Wn.2d at 500. The Land court found that the community was close-knit and that the defendant had numerous personal contacts with various members of the community from which his bad reputation for veracity was well known. Land, 121 Wn.2d at 500. By contrast, the community with respect to which Richardson would testify was composed of a maximum of four people, a small cross-section of the people Hinton worked with. The reputation was based on a single event, not a series of contacts with various members of the community. Therefore, given the isolated nature of the event and number of people in the community, the trial court did not abuse its discretion in refusing to allow Richardson's testimony.
Finally, even had Richardson's testimony been admissible, any error in excluding it would have been harmless. Evidentiary error that is harmless beyond a reasonable doubt and that could not have reasonably affected the outcome of the trial will not be the basis of reversal on appeal. See State v. Russell, 125 Wn.2d 24, 94, 882 P.2d 747 (1994). Here, Hinton had another witness, Toby Sala, testify about his reputation for truthfulness based on a community of approximately 50 people who worked with Sala and Hinton. The community included people working in various capacities who spoke with Sala specifically about Hinton's reputation for being truthful and having a good character for veracity. Sala was permitted to testify that based on this extended community, Hinton had a reputation for truthfulness.
Given Sala's testimony that Hinton had a reputation for truthfulness, and the substantial evidence supporting the jury's verdict of guilt, it is improbable that Richardson's testimony, if allowed, would have changed the outcome of the trial. The jury would still have Hinton's admissions and physical evidence supporting Hinton's guilt. Additional witness testimony about Hinton's reputation for truthfulness would probably not have affected the outcome of the trial.
The trial court did not err in refusing to provide Hinton's requested instruction on constructive possession because the instructions given were correct and allowed Hinton to argue his theory of the case. Further, the trial court did not err in refusing to permit the testimony of two of Hinton's reputation witnesses.
We affirm.
SCHINDLER and COX, JJ., Concur.