No. 52342-2-IThe Court of Appeals of Washington, Division One.
Filed: December 27, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Snohomish County. Docket No. 02-1-00722-2. Judgment or order under review. Date filed: 04/28/2003. Judge signing: Hon. Richard J Thorpe.
Counsel for Appellant(s), Eric Broman, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Counsel for Respondent(s), Charles Franklin Blackman, c/o Snohomish County Pros, 3000 Rockefeller Ave, Everett, WA 98201-4061.
BECKER, J.
Police found methamphetamine residue after searching an apartment in which Lisa Kelley was present. We reverse her conviction for possession of methamphetamines because the State relied on improperly admitted hearsay about who police expected to find in the apartment to prove that Kelley’s presence there was more than fleeting. The investigation leading to the search began when a confidential informant told police that he could buy methamphetamine from `Mike’, at an Everett apartment that Mike shared with his girlfriend, `Lisa’.[1] The police arranged a controlled buy. The informant bought drugs from `Mike’ at the apartment.[2] After the buy, he informed police that there was additional methamphetamine in the apartment as well as a scale. The police obtained a search warrant. The warrant directed them to search the apartment and Mike, and to seize, among other things, all methamphetamine, implements used for the illegal sale or manufacture of illicit drugs, and `papers of occupancy’.[3] The police went to the small apartment in the early evening, where they found Michael Hults and Lisa Kelley just about to go out. Both were placed under arrest. An officer searched Kelley and found a small baggie of methamphetamine in her jacket pocket.
Among items seized in the search of the apartment were two scales, a suspected drug `ledger’,[4] and syringes. Up on a shelf in the bedroom, police found a spoon encrusted with methamphetamine residue. They also found a small baggie containing methamphetamine residue underneath some women’s clothing in a drawer, along with an expired Washington identification card for Lisa Kelley. Documents seized included a bankruptcy document in Kelley’s name.
The State charged Kelley and Hults with possession of a controlled substance. Hults pled guilty. Kelley successfully moved to suppress the drugs found in her jacket pocket on the basis that it was the fruit of an illegal arrest. The court found that the police lacked probable cause to arrest her when they first entered the apartment. The case then went to a two-day jury trial.
The State presented its case through testimony of police officers. The defense called no witnesses and did not present an unwitting possession defense. The State argued in closing that Kelley constructively possessed the baggie of residue found in the dresser drawer next to her identification and the residue on the spoon. Defense counsel emphasized that it was Hults who had been the focus of police suspicion, and argued that Kelley unlike Hults, who resisted arrest was fully cooperative during her encounter with the police at the apartment, indicating that she personally had nothing to hide. Counsel attacked as insufficient the State’s attempt to prove that Kelley had dominion and control over the apartment or the drug residue found during the search.
Kelley raises several evidentiary issues in this appeal from her conviction. Decisions involving evidentiary issues lie within the sound discretion of the trial court and will not be reversed unless abuse of discretion can be shown. State v. Castellanos, 132 Wn.2d 94, 97, 935 P.2d 1353 (1997).
ADMISSION BY HULTS
During cross-examination of a police witness, the court refused to allow Kelley to elicit testimony about an admission Hults made to Officer Eby at the time of the arrest. According to Kelley, Hults admitted that he owned the methamphetamine in the dresser drawer. Kelley contends that the court’s exclusion of Hults’ admission unconstitutionally impaired her defense.
But Kelley is mistaken as to what is shown by the portion of the record she cites. She did not attempt to elicit the actual statement that Hults made to Officer Eby. Rather, she tried to establish, during the cross-examination of a different officer, that it was Officer Eby who took charge of Hults after the arrest and took his statement. Asked to explain the relevance of this inquiry, counsel responded that the officer, `without testifying to the fact that Michael Hults admitted to possession of the drugs, can testify that he is aware that officer Eby is the one who took care of Mr. Hults and took any statements that Mr. Hults had to make.’[5] One can see from the colloquy cited in the appellant’s brief[6] that Hults’ statement was not what Kelley was seeking to admit, nor what the court refused to admit. And his statement would have been irrelevant in any event because the methamphetamine that Hults admitted possessing was the baggie found in Kelley’s jacket pocket during the search.[7]
Because the court excluded that particular drug item from evidence in the trial of Kelley, nothing Hults said about it was relevant.
PAPERS OF OCCUPANCY
The State used Kelley’s bankruptcy papers as evidence tending to show her residence in the apartment. The State introduced the papers into evidence during the testimony of the officer who found them on a coffee table. The jury learned that the papers were in Lisa Kelley’s name, and had an address that was different than that of the searched apartment. The State argued in closing that despite the different address, the document did bear Kelley’s name and `would you take a legal document and put it in someone else’s place and just leave it there?’[8] The State amalgamated the presence of the document with the presence of the women’s clothing, Kelley’s identification card, and Kelley’s actual physical presence in the apartment, to argue that she had dominion and control over the apartment and any drugs found in it.
On appeal, Kelley assigns error to the ruling permitting the bankruptcy document to come into evidence. She argues that the seizure went beyond the scope of the warrant. The search warrant identified Hults, not Kelley, as the person to be searched. And it directed police to seize `papers of occupancy’ found at the apartment. Kelley argues that her bankruptcy papers did not pertain either to Hults or to occupancy in the apartment and therefore should have been suppressed. She also argues that the court erred in failing to enter findings concerning this issue, as is normally expected in denying a motion to suppress.
The State contends that Kelley did not bring a proper motion to suppress. Kelley brought a Knapstad[9] motion to dismiss before the first trial (which ended in a declaration of mistrial due to the State’s violations of orders in limine). She argued that the evidence was insufficient to establish constructive possession. The trial court denied the motion. Before the second trial she moved to reconsider the Knapstad sufficiency ruling. Within that motion, she also moved to suppress her personal papers police seized from the apartment during the search, including her bankruptcy papers. She argued that by taking documents of occupancy in her name, officers exceeded the scope of the warrant. The trial court denied the motion in its entirety.
The State contends that the `law of the case’ doctrine should preclude Kelley from appealing a suppression issue that was not presented during the course of the first trial. This contention is unfounded. The law of the case doctrine provides that questions determined on appeal, or which might have been determined had they been presented, will not be considered in a subsequent appeal if there is no substantial change in the evidence at the remanded trial. Rodriguez v. Perez, 119 Wn. App. 928, 931, 83 P.3d 1026 (2004); Folsom v. County of Spokane, 111 Wn.2d 256, 263-64, 759 P.2d 1196 (1988); RAP 2.5(c)(2). It does not govern what happens at a second trial when there has been no intervening appeal.
The State says findings were not required because the only issue in a Knapstad motion is the sufficiency of the evidence. The record indicates that Kelley did tack a suppression argument on to the end of an eight-page brief that primarily addressed the insufficiency of the evidence. Also, the State moved to strike Kelley’s suppression argument as being inappropriate in a motion for reconsideration, but the court denied the State’s motion to strike. Theoretically, then, Kelley did move to suppress. But we cannot conclude that the lack of findings is an error that compels reversal, because there was no disputed issue of fact. The only question for the court was a legal one — whether the document did or did not come under the heading of `papers of occupancy’.
The Fourth Amendment prohibits the issuance of any warrant except one `particularly describing the place to be searched and the persons or things to be seized.’ Maryland v. Garrison, 480 U.S. 79, 84, 107 S. Ct. 1013, 94 L. Ed. 2d 72 (1987). The Washington Constitution contains a similar requirement. State v. Myrick, 102 Wn.2d 506, 510, 688 P.2d 151 (1984). Evidence seized that exceeds the scope of a warrant must be excluded. State v. Kelley, 52 Wn. App. 581, 588, 762 P.2d 20 (1988). For example, in State v. Kelley, the search warrant authorized officers to search the defendant’s “one story, wood framed residence, green in color, with an attached carport bearing the specific address of. . . .” Kelley, 52 Wn. App. at 584 (quoting the warrant). In executing the search warrant, the officers searched a barn and a garage not included in the warrant. The court upheld suppression of the evidence found in the barn and garage because the warrant did not refer to the outbuildings; and, although the affidavit supporting the warrant did mention them, the warrant did not incorporate that affidavit by reference. Kelley, 52 Wn. App. at 586. Here, the affidavit for probable cause was incorporated reference into the warrant. It identified the apartment as both Hults’ and Kelley’s, and said that methamphetamine could be bought from `them’. Thus, a search of the premises for `papers of occupancy’ in the name of either occupant was not outside the four corners of the warrant’s scope. The fact that Hults was the primary focus of the warrant did not negate the information known to the police and the issuing magistrate indicating that Hults and Kelley cohabited at the apartment. In light of that information, papers of occupancy pertaining to Kelley could have potentially been useful in proving a case against Hults.
Because the bankruptcy papers did contain an address, it was not unreasonable for the police to perceive them as `papers of occupancy.’ Kelley has not explained why `papers of occupancy’ must necessarily show occupancy of the premises being searched, nor has she cited authority on the issue. We conclude the court did not err in failing to suppress the document.
SCALES AND DRUG LEDGER
Kelley assigns error to the court’s refusal to grant her motion in limine to exclude testimony about the drug ledger and scales. The State contends these items were relevant to show Kelley’s knowledge that drug activity was going on in the apartment, and inferentially, her awareness that drugs were present. Kelley contends the evidence was irrelevant to the charge of possession.
Constructive possession is where the person charged has dominion and control over the item in question or over the location where the item is found. State v. Bradford, 60 Wn. App. 857, 862-3, 808 P.2d 174 (1991). Knowledge is not an element of the crime of possession of a controlled substance, thus it was not necessary for the State to prove that Kelley was aware of the presence of the methamphetamine in the apartment or that she had the intent to possess it. State v. Cleppe, 96 Wn.2d 373, 378-81, 635 P.2d 435 (1981). The State argues, however, that evidence showing Kelley’s awareness of drug dealing activity was relevant as part of the totality of the circumstances from which the jury could find dominion and control. A finding of dominion and control can arise from `the cumulative effect’ of various pieces of evidence. State v. Partin, 88 Wn.2d 899, 906, 567 P.2d 1136
(1977). But the pieces of evidence must still be relevant to show dominion and control. State v. Weiss, 73 Wn.2d 372, 375, 438 P.2d 610 (1968) (`These facts indicate not only that Weiss was residing in the house but also that he was exercising dominion and control over it.’). The State relies on a discussion in Weiss suggesting that evidence is relevant if it shows the defendant `knew’ about drugs found in the premises. Because Weiss predates Cleppe, we do not rely on it for that proposition. Other cases cited by the State do not explain why a person who can see that drug sales are going on in a particular apartment is thereby more likely to be exercising dominion and control over that apartment or over certain drugs found in it. In the absence of any connection between the evidence of drug selling activity and the particular residue Kelley was convicted of possessing, Kelley’s imputed knowledge that drug sales were going on in the apartment is too tenuous to be relevant, and we conclude it was error to admit it.
At the same time, the error was not particularly prejudicial. The jury was already aware that police had a warrant to search the apartment based on undercover narcotics buys, so hearing that items relating to the sale of drugs were found there would not have been surprising. And the testimony of the officers informed the jurors that Hults was the primary focus of the search warrant that issued after the controlled buy.[10] The State mentioned the scale briefly in closing, but did not rely on it as critical evidence of possession. The admission of this evidence, by itself, does not warrant reversal.
`MALE’ AND `FEMALE’
The same cannot be said for an error in the admission of hearsay. The State desired to prove that Kelley was in residence at the apartment, or at least that her connection to it was more enduring than if she had just happened to be visiting when the police came to serve the warrant. The prosecutor asked every officer who testified if, without naming any names, the pre-raid briefing indicated how many individuals were expected to be at the apartment, and their gender. Kelley objected on hearsay grounds. The court overruled the objection, and allowed each officer to testify that according to their briefing, they should expect to find two people — a male and a female. Kelley argues that what the police heard during the pre-raid briefing is inadmissible hearsay.
Hearsay is a statement, other than the one made by the declarant while testifying at the trial, offered in evidence to prove the truth of the matter asserted. A statement is an oral or written assertion. ER 801(a),(c). The State first argues that the testimony was not an assertion but merely a statement about officer expectation.
The key to the definition of hearsay `is that nothing is an assertion unless intended to be one.’ State v. Collins, 76 Wn. App. 496, 499, 886 P.2d 243 (1995). The out-of-court declarant who conducted the pre-raid briefing could not have intended the statement to be anything other than an assertion that police should expect to find a woman at the apartment. We conclude the testimony was an assertion.
The State then argues that to the extent that the statements were assertions, they were not offered to prove the truth of the matter asserted. According to the State, the information about who the police expected to find was properly admitted to give context to the execution of the warrant, so that the jury would understand why the police arrested Kelley along with Hults when they entered the apartment.[11]
Context, or showing why the police acted as they did, is not an exception to the hearsay rule, as can be seen in State v. Johnson, 61 Wn. App. 539, 811 P.2d 687 (1991). There, an officer testified that he had reason, based on information in a search warrant affidavit, to suspect that the appellant could be found at her boyfriend’s residence, and was involved with drug trafficking at that residence. The State gained admission of the testimony on the theory that it went to the officer’s state of mind at the time the search warrant was executed. The reviewing court rejected the State’s theory and reversed the defendant’s conviction for possession with intent to deliver. The officer’s state of mind was not at issue and was therefore irrelevant. The inescapable inference from the testimony was that a non-testifying witness had furnished the police with evidence of the defendant’s guilt. Admitting it defeated the defendant’s right of confrontation. Johnson, 61 Wn. App. at 545-47, 549.
In this case, the State’s closing argument used the testimony to prove the truth of the matter asserted — namely, that police expected to find a woman at the apartment with Hults. That assertion was, in turn, used to bolster the argument that Kelley was a resident of the apartment. Because the police expected to find a female to be at the apartment, Kelley — who was found there — was more likely be a person whose presence at the apartment was predictable.[12]
In short, the State was allowed to fortify the inference that Kelley resided at the apartment by supplying a statement from a person Kelley was unable to cross-examine. That statement, offered to prove the truth of the matter asserted, was inadmissible hearsay.
The State argues that the error was harmless because the jury did not have to find that Kelley was a resident of the apartment, only that she had dominion and control over the drug residue in the drawer and on the spoon. But in a harmless error analysis, the question is not the sufficiency of the evidence; it is whether, with reasonable probability, the error affected the outcome of the trial. State v. Smith, 148 Wn.2d 122, 139, 59 P.3d 74 (2002). The State put the question about the pre-raid briefing to every officer who testified, and in closing argument relied on the inference that Kelley was a resident of the apartment. While the discovery of the residue in a drawer of women’s clothing along with Kelley’s identification card was substantial evidence against her, it is reasonably probable that the jury would not have convicted her without additional proof that she lived at the apartment on a regular basis. The testimony about what the officers expected to find supplied that proof. The error requires a new trial.
The judgment is reversed.
APPELWICK, J. and SCHINDLER, J., Concur.