STATE v. CROMBIE, 25363-1-II (Wash.App. 2-2-2001)

No. 25363-1-II.The Court of Appeals of Washington, Division Two.
Filed: February 2, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.

Appeal from Superior Court of Pierce County, No. 99-1-02920-0, Hon. D. Gary Steiner, November 19, 1999, Judgment or order under review.

Counsel for Appellant(s), Rita J. Griffith, Griffith Cole Pllc, 1305 N.E. 45th #205, Seattle, WA 98105.

Counsel for Respondent(s), Barbara L. Corey-Boulet, Pierce County Deputy Pros. Atty., County City Bldg., 930 Tacoma Ave. S., Tacoma, WA 98402-2177.

J. ROBIN HUNT, A.C.J.

Donald Crombie appeals his conviction for unlawful possession of a controlled substance. He argues that: (1) the trial court erred in denying his motion for a mistrial, based on the State’s violations of in limine orders; (2) the trial court erred in refusing to instruct the jury that mere proximity to a controlled substance is insufficient to establish constructive possession; (3) the trial court erred in allowing the State to impeach him with six theft and burglary convictions that were more than 10 years old; and (4) his trial counsel provided ineffective assistance by failing to propose an `unwitting possession’ jury instruction. Finding both reversible and cumulative error, we reverse.

FACTS I. The Crime
Tacoma Police Officer Kenneth Bowers stopped a `Nissan 260′ for a traffic violation. Bowers `ran [a] check through LESA records’[1] and learned there had been `a report of sale on the vehicle’ more than 45 days earlier. Bowers contacted the occupants. Donald Crombie was a passenger; his sister was the driver. Crombie misidentified himself as his brother, Jeff Crombie.

Officer Bowers arrested Crombie’s sister because she lacked a valid driver’s license and was wanted on a `misdemeanor warrant for theft.’ Bowers had Crombie exit the vehicle and wait next to Bowers’ patrol car while he searched the Nissan. Under the front passenger seat Bowers found numerous items he believed to be controlled substances and drug paraphernalia. When Bowers removed `a small tin’ from the car, showed it to another officer, and mentioned `something about manufacturing or . . . sales,’ Crombie fled. A K-9 unit dog found Crombie hidden in a blackberry patch, dragged him out, and severely bit his calf. Paramedics transported Crombie to the hospital, where he underwent surgery and remained for two weeks.

Inside the tin were two baggies containing a white powdery substance (later determined to be methamphetamine), some razor blades, brass screens, and a baggie of a green liquid substance. `[S]omewhere in the front of the vehicle, either on the driver’s side or passenger side,’ Bowers later found a wallet containing Jeff Crombie’s Washington driver’s license. He also found Donald Crombie’s Kansas identification card in the driver’s side sun visor and two bags of men’s clothing in the `rear of the vehicle,’ and concluded from the Kansas identification card that Donald Crombie, and not Jeff Crombie, was the passenger in the vehicle.

Bowers interviewed Donald Crombie at the hospital. Crombie denied `any knowledge of any narcotics in the vehicle,’ said `he owned the vehicle, but he had not transferred the title,’ and admitted to using methamphetamine and having used methamphetamine the night before Bowers stopped the car.

II. The Trial
The State charged Donald Crombie with unlawful possession of a controlled substance. The trial court granted the State’s motion in limine to exclude the `crime underlying the warrant’ for Crombie’s sister’s arrest. The State also stipulated to `[e]xclude any mention of any other drugs, heroin or marijuana,’ after which, the trial court commented, `Clearly, the heroin and the marijuana are out.’

In violation of the trial court’s orders to exclude certain evidence, Bowers revealed the crime underlying Crombie’s sister’s arrest warrant and also said that he believed he had found heroin in the car. Defense counsel objected and the trial court instructed the jury to disregard `[t]he mention of heroin.’ The trial court also allowed defense counsel to attempt to elicit a negative response from Bowers to the question, `The suspected heroin did not test positive for heroin?’ But when asked the question, Bowers responded, `I don’t know.’ Bowers also testified that he had found under the passenger seat `four white tablets that say 93834 on . . . each one.’ The trial court sustained defense counsel’s objection.

After Bowers’ testimony, defense counsel moved `for [a] mistrial for another violation of the motion in limine; and . . . if the court is not inclined to grant the mistrial, that any of those items that were excluded to be removed from the evidence.’ Report of Proceedings at 148. The trial court found that the testimony concerning the four white tablets should not have been introduced, but ruled:

I do not think it’s mistrial information because I don’t think it’s very clear that the pills were excluded, but the pills should not be admitted into evidence.

Report of Proceedings at 152. The trial court also granted defense counsel the opportunity to draft a final curative jury instruction `that did not perhaps specifically identify the pills, but any substance other than [methamphetamine.]’

Crombie testified that he worked for his brother and his brother’s partner, Gary Smith, cleaning cars at their car dealership. On June 26, 1999, Crombie’s brother `was in jail and he wanted his cars off the lot before they were confiscated by’ Smith. Crombie testified that both his brother and Smith had given him permission to take the Nissan 260 car because they owed him money for Crombie’s cleaning work. So, in response to their brother’s request, Crombie and his sister went to the dealership after it had closed to remove the cars from the lot; Crombie’s sister drove the Nissan 260 because Crombie did not have a driver’s license. Bowers stopped them en route to Crombie’s sister’s house.

Crombie testified that he misidentified himself to Bowers and later fled upon hearing Bowers’ statement, concerning drug manufacturing and sales, because he was a fugitive and did not want to go back to jail. Crombie denied that the drugs were his and assumed they were his brother’s. On cross-examination, with the trial court’s approval, the State elicited from Crombie his six prior convictions for second-degree burglary and second-degree theft. Three of the convictions occurred in 1982, the remaining three convictions occurred in 1984, 1986, and 1987.

The trial court instructed the jury on `dominion and control’ and constructive possession, but it refused Crombie’s request to instruct the jury that `Proximity alone is insufficient to establish possession.’ Crombie did not request an instruction on unwitting possession. During closing, however, defense counsel argued to the jury that Crombie had not known about the drugs in the car, Crombie had not exercised dominion and control over them, and they belonged to his brother. The jury found Crombie guilty as charged.

ANALYSIS I. `Mere Proximity’ Instruction
`Trial courts have considerable discretion in wording jury instructions.’ State v. Castle, 86 Wn. App. 48, 62, 935 P.2d 656
(1997). `[A] defendant is not prejudiced by the rejection of a proposed instruction if the instructions given are a correct statement of the law and allow the defendant to argue his theory of the case to the jury.’ State v. Porter, 58 Wn. App. 57, 63, 791 P.2d 905 (1990) (citing State v. Ng, 110 Wn.2d 32, 41, 750 P.2d 632 (1988)) (emphasis added). `A specific instruction is not necessary when a more general instruction adequately explains the law.’ State v. Portrey, 102 Wn. App. 898, 10 P.3d 481, 484 (2000); accord Castle, 86 Wn. App. at 62. But it is reversible error where the instructions given do not provide the defendant `a satisfactory opportunity to argue his theory to the jury.’ State v. Hackett, 64 Wn. App. 780, 787, 827 P.2d 1013 (1992) (holding that the trial court committed reversible error by refusing to give defendant’s voluntary intoxication instruction, notwithstanding defendant’s opportunity to argue that condition, where `[n]one of the instructions discussed intoxication or its relationship to the element of intent’).

Crombie contends the trial court erred in refusing to instruct the jury that mere proximity to drugs is insufficient to establish constructive possession. He argues the instruction was necessary to support his position that his mere proximity to the drugs in the car did not give him dominion and control over them. We agree, particularly in light the facts and the absence of an `unwitting possession’ instruction.[2]

In Washington, constructive possession is established when the person charged has dominion and control over either the drug or the premises[3]
where the drug is found[.] Exclusive control is not necessary to establish constructive possession, but mere proximity to the drugs is not enough to establish constructive possession. State v. Hagen, 55 Wn. App. 494, 498-99, 781 P.2d 892 (1989) (citations omitted) (emphasis added).

Crombie argues that in Porter, 58 Wn. App. 57,[4] Division One approved the `mere proximity’ instruction that the trial court rejected here. But since Porter was decided, both Divisions One and Three have held that a trial court may reject a `mere proximity’ instruction where the State’s case does not rest solely on the defendant’s proximity to the drugs, so long as the jury is otherwise properly instructed on the law and the defendant is able to argue his theory of the case. State v. Portrey, 102 Wn. App. 898, 10 P.3d 481 (2000) (Division III); State v. Castle, 86 Wn. App. 48, 935 P.2d 656 (1997) (Division I). But here, the instructions did not allow Crombie to argue fully his theory of the case; merely being able to argue that Crombie was not in dominion and control over the drugs does not satisfy this test.

The trial court 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.

Clerk’s Papers at 15 (emphasis added).[5] This instruction was a correct statement of the law, as far as it went. But there are other aspects of possession and dominion and control, such as physical proximity. See Hagen, 55 Wn. App. at 499.

Based on the above instruction, the jury could have found Crombie guilty because he was in possession of the car in which the drugs were found. Defense counsel’s requested additional instruction, that mere proximity alone is not enough to establish constructive possession, would have allowed Crombie to argue his defense of unwitting possession of his brother’s drugs more effectively to the jury; such an instruction would also have allowed the jury to acquit if Crombie’s defense raised reasonable doubt. See Hagen, 55 Wn. App. at 499.

Here, the State’s evidence against Crombie consisted of little more than mere proximity to drugs. There was evidence that: (1) Crombie may have owned the vehicle in which the police found the drugs but also that it might have belonged to another; (2) Crombie had his identification card and clothes in the vehicle; and (3) Crombie misidentified himself and fled when the officer displayed drugs found in the vehicle. But Crombie had alternative explanations for his behavior, consistent with innocence, which he told to the jury: He knew he had an outstanding arrest warrant and did not want to return to jail, so he gave his brother’s name and fled; he had taken the car from his brother’s car lot shortly before Walker stopped the car; and his brother was a frequent drug user. Further, the evidence showed that Crombie’s brother’s wallet was found `somewhere in the front of the vehicle, either on the driver’s side or passenger side.’

Based upon this evidence, the jury, if given the `mere proximity’ instruction, reasonably could have found: (1) that Crombie was unaware of the methamphetamine; and (2) that Crombie’s mere proximity to the drugs, without more, was not sufficient to establish dominion and control. Thus, we cannot say that the verdict would have been the same if the jury had been properly instructed. Crombie attempted to argue to the jury `that you don’t have constructive possession only by proximity’; but without a court instruction to back up this argument, Crombie had no realistic hope of convincing the jury of his defense. Accordingly, we hold that under the totality of circumstances[6] the trial court committed reversible error in denying Crombie’s proposed jury instruction on mere proximity.

II. Violations of In Limine Orders
A trial court’s denial of a motion for a mistrial is reviewed under an abuse of discretion standard[7] and the court should grant a mistrial only when the defendant has been so prejudiced that nothing short of a new trial can insure that the defendant will be tried fairly. State v. Lewis, 130 Wn.2d 700, 707, 927 P.2d 235 (1996). `In determining the effect of an irregularity’ in trial proceedings, we examine (1) the seriousness of the irregularity; (2) whether the irregularity involved cumulative evidence; and (3) whether the trial court properly instructed the jury to disregard the irregularity. State v. Hopson, 113 Wn.2d 273, 284, 778 P.2d 1014 (1989).

Crombie argues that the following `irregularities’ warranted a mistrial — the State’s violations of the trial court’s in limine order excluding reference to (1) drugs other than methamphetamine found in the vehicle;[8]
and (2) the crime underlying the warrant for Crombie’s sister’s arrest. The prosecutor’s explanation was that he had not had a chance to advise Bowers of the court’s rulings.

Unknowingly, Bowers committed several violations of the court’s in limine order. Bowers testified that he had found `a majority’ of the drugs on the floorboard on the passenger’s side, including `two brown balls which [he] believed to be heroin’ under the passenger seat. Defense counsel objected, and the trial court instructed the jury: `The mention of heroin is not admissible in this trial. You are instructed to disregard same. It has no materiality to this case.’ The trial court also allowed defense counsel to attempt to elicit from Bowers a negative response to the question, `The suspected heroin did not test positive for heroin?’ But Bowers responded, `I don’t know.’ Bowers also testified that he had found four numbered white tablets. The trial court removed them from evidence and granted defense counsel the opportunity to draft a curative jury instruction.[9] Eventually, a forensic scientist testified that only methamphetamine had been found among the items seized from the vehicle.

Bowers committed a third violation of the court’s in limine order when he testified that Crombie’s sister was subject to an arrest warrant for theft. Although none of these violations alone might be said to have prejudiced Crombie’s case, when taken together with the other errors set forth below, we cannot say beyond a reasonable doubt that the jury would likely have reached the same verdict in the absence of these errors. See Scruggs v. State, 782 S.W.2d 499, 502-03 (Tex.Crim.App. 1989).

III. Admissibility of Prior Convictions
Crombie argues that the trial court erred in allowing the State to impeach him with six theft and burglary convictions that were more than 10 years old, contrary to ER 609. Evidence of a conviction under this rule is not admissible if a period of more than 10 years has elapsed since the date of the conviction, . . . unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. ER 609(b) (emphasis added). And `the probative value of a prior conviction may not be determined by how important the defendant’s credibility is to the opposing party.’ United States v. Bensimon, 172 F.3d 1121, 1126 (9th Cir. 1999).

The rule [in ER 609(b)] creates, in effect, a presumption against admissibility founded on a belief that the passage of time dissipates the probative value of the conviction. The burden is on the proponent of the conviction to . . . prove that the probative value substantially outweighs the danger of unfair prejudice. Before admitting the conviction, the trial court must make an on-the-record finding of the specific facts and circumstances justifying admissibility. 5A Karl B. Tegland, Washington Practice: Evidence § 609.10, at 411 (4th ed. 1999) (footnotes omitted).

Here, the trial court did not balance the probative value against the prejudicial value of Crombie’s convictions that were more than 10 years old. The court neither ruled that such probative value `substantially’ outweighed the prejudicial effect nor supported such finding with specific facts and circumstances.[10] Thus, it was error for the trial court to have allowed the State to impeach Crombie with his more than 10-year old convictions. ER 609(b).

But `an erroneous ER 609 ruling is not reversible error unless the court determines that within reasonable probabilities, had the error not occurred, the outcome of the trial would have been materially affected.’ State v. Rivers, 129 Wn.2d 697, 706, 921 P.2d 495 (1996) (quotations omitted). Here, even in the absence of the required findings, we glean from the record that had the trial court conducted the required balancing, it likely would have found the scales tipped in favor of prejudice. Admission of Crombie’s very old prior convictions, including three from 17 years earlier, served more to demonstrate his bad character, contrary to ER 404(b) and ER 608(b), than merely to impeach his credibility.[11]

The following evidence suggested that Crombie unlawfully possessed the methamphetamine: (1) Crombie gave Bowers a false name; (2) Crombie fled when Bowers showed another officer some `baggies’ that he had found in the vehicle and Bowers said `something about manufacturing or . . . sales’; (3) Crombie testified that Smith had `intended to pay Crombie with th[e] car’; (4) Crombie’s Kansas identification card was in the driver side sun visor; (5) Crombie’s clothes were in a duffel bag in the car’s back seat and he testified that he `lived out of’ the duffel bag; (6) Bowers testified that Crombie had told him in the hospital that (a) he owned the vehicle but had not yet transferred title, and (b) he had used methamphetamine the previous evening; and (7) the car had been reported sold over 45 days earlier but there had not been a transfer of title.[12] The evidence detracting from these seven points includes: (1) Crombie’s testimony that the methamphetamine was not his, and probably belonged to his brother, who often used illicit drugs; (2) Crombie’s brother’s wallet, which contained Crombie’s brother’s Washington Driver’s License, which Bowers found `somewhere in the front of the vehicle, either on the driver’s side or passenger side’; (3) Crombie’s testimony that he ran because he was a fugitive and `didn’t feel like going [back] to jail’; and (4) Crombie’s testimony that he first took possession of the car at his brother’s car lot on June 26, 1999.

In the absence of any other trial errors, it is not reasonably probable that the erroneous admission of Crombie’s prior convictions alone materially affected the outcome of the trial. But, as we previously explained, we view this error together with the State’s knowing violations of the court’s in limine orders and the deficient jury instructions, which did not fully afford Crombie a reasonable opportunity to argue his theory of the case; and we conclude that it is reasonably probable that cumulatively, these errors affected the trial’s outcome. See State v. Russell, 125 Wn.2d 24, 93-94, 882 P.2d 747 (1994).

Accordingly, we reverse Crombie’s conviction.

A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.

WE CONCUR: HOUGHTON, J., BRIDGEWATER, J.