State of Washington v. Stephen Benton Harris, Jr.

FILED
MAY 24, 2018
In the Office of the Clerk of Court
WA State Court of Appeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE

STATE OF WASHINGTON, )
) No. 34934-9-III
Respondent, )
)
v. )
)
STEPHEN BENTON HARRIS, JR., ) UNPUBLISHED OPINION
)
Appellant. )

FEARING, J. — When a defendant raises the defense of unwitting possession to

charges of possession of a controlled substance, does the trial court abuse its discretion

under ER 403 when excluding evidence from a police officer that the officer observed

another person in contact with the defendant to be under the influence of that controlled

substance? Based on the unusual facts behind this appeal, we answer in the negative.

We affirm appellant Stephen Harris’ conviction for possession of methamphetamine.

FACTS

Although the jury convicted Stephen Harris with possession of a controlled

substance, our facts begin with Harris’ alleged assault of his girlfriend, Angela Cline.
No. 34934-9-III
State v. Harris

Harris contends that methamphetamine he possessed belonged to Cline and that a police

officer should have been allowed to testi

fy to Cline’s methamphetamine behavior.

On an autumn day, Spokane Police Officer Kellee Gately responded to a report of

an assault on Cline. Officer Gately entered a laundromat and encountered a distressed

and traumatized Cline, who suffered from a bloody nose. By speaking with Cline and

other witnesses, Gately concluded she held probable cause to arrest Cline’s boyfriend,

Stephen Harris, for domestic violence.

Spokane Police Officer Kellee Gately found Stephen Harris seated in a car parked

in the laundromat parking lot. Officer Gately handcuffed Harris and searched his

pockets. Gately seized from Harris’ front pocket a ubiquitous small, clear plastic baggie

with a white residue therein. Gately believed the white substance constituted

methamphetamine, although she did not adjudge Harris as being under the influence of

the stimulant. She warned Harris that, if the bag contained methamphetamine, authorities

would charge him with a felony. Harris exclaimed, “‘that’s not mine,’” as if distancing

himself from the drugs. Report of Proceedings (RP) (Oct. 18, 2016) at 88. Officer

Gately also discovered Angela Cline’s cell phone and payee card in Harris’ pocket.

PROCEDURE

The State of Washington charged Stephen Harris, in superior court, with

possession of a controlled substance and, in district court, with domestic violence. The

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State v. Harris

district court dismissed with prejudice the domestic violence charge brought against

Harris. As a result of the district court dismissal, the superior court granted the following

pretrial order in limine:

The State has stipulated that the fact that [Stephen Harris] was
arrested for a domestic violence offense in particular is irrelevant to the
issue of whether [Harris] knowingly possessed a controlled substance.
Accordingly, per ER 404, the jury shall only be informed, and the State’s
witness shall be instructed to limit their testimony, to the fact that [Harris]
was lawfully arrested.

Clerk’s Papers (CP) at 94-95.

During opening statement, Stephen Harris’ counsel stated that Angela Cline

appeared to be under the influence of methamphetamine at the laundromat. Angela Cline

could not be located for trial, and thus the jury heard no testimony from Cline.

During direct examination at trial, Spokane Officer Kellee Gately testified to

responding to a call and eventually arresting Stephen Harris. She did not disclose to the

jury the purpose of the call or the reason for arresting Harris.

During cross-examination of Police Officer Kellee Gately, the following exchange

occurred:

Q And he exclaimed in surprise “that’s not mine.” Is that correct?
A I don’t know if surprise is the correct word. He did exclaim
“that’s not mine.”
Q As if he hadn’t seen it?
A No, as if distancing himself from it.
Q As if trying to tell you that he didn’t expect to see that?
A That could be.

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State v. Harris

RP (Oct. 18, 2016) at 88.

Next during the cross-examination of Officer Kellee Gately, defense counsel

asked her whether, at the time she interviewed Angela Cline, Cline appeared under the

influence of methamphetamine. The State objected on the basis of the order in limine,

and Gately never answered the question in the presence of the jury. Counsel and the trial

court then engaged in a lengthy discussion as to the relevance of Angela Cline’s alleged

consumption of methamphetamine, the propriety of such testimony in light of the pre-

trial order in limine, and the confusing nature of any such testimony. Because we review

the trial court’s ruling on the State’s objection for an abuse of discretion, we quote much

of the discussion in order to discern arguments forwarded, facts on which the parties

relied, and the basis of the trial court’s ruling.

Immediately after the objection by the State to Officer Kellee Gately’s testimony

of the appearance of Angela Cline, the following colloquy occurred outside the presence

of the jury:

MR. NELSON [Deputy Prosecutor]: Your Honor, I think if the
defense wants to go into her demeanor, there were a lot of things going on
and, obviously, if he wants to elicit the fact that she is agitated and upset.
And I think Officer Gately said she might have even been under the
influence of drugs at the time she was interviewed. She was also, Your
Honor, to be quite blunt, under the influence of just having the hell beat out
of her. She was bleeding. She was crying. I have marked as State’s
Exhibit No. 3 photographs taken of her. I think photographs are absolutely
relevant.
....

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State v. Harris

If he wants to open the door to her demeanor and her appearance, it
would be the State’s position the fact that she reported she was beaten
severely, the fact she’s bleeding from the mouth, the fact her trach tube was
being taken from her and the fact she had been crying are all relevant.
THE COURT: The problem I have is that you’ve [defense counsel
has] already done it. You did it in opening statement and you did it again
here, and it’s now in the minds of the jury that she has, she may be under
methamphetamine when, in fact, she was traumatized from domestic
violence and that’s what brought the police. And I struggled when you said
that in your opening statement. “He’s opened the door,” I said that to
myself, but the State didn’t say anything. They didn’t object in the
opening. This is the first time.
....
THE COURT: You have elicited testimony about her emotional
condition.
MR. ELSTON [Defense Counsel]: No.
THE COURT: And to just unilaterally say that she is under the
influence of methamphetamine is an unfair representation, in my
estimation.

RP (Oct. 18, 2016) at 90-92. Defense counsel responded:

MR. ELSTON: Your Honor, I will would [sic] be happy to call
Officer Gately back to the stand and go through the parts of her report that
we’re referring to. I think this court really needs to know what’s in the
report and there is a lot of different information in the report. Okay. So
Officer Gately does talk about her demeanor and behavior. I did not ask
Officer Gately what was her demeanor. I did not ask Officer Gately what
was her behavior. Officer Gately testified through her training and
experience she recognizes in the field when people appear to be under the
influence of methamphetamine. It is that training and experience that led
her to the opinion that Mr. Harris was not acting as if he was under the
influence of methamphetamine. Her observation, and we can put her on
stand right now to confirm this, her observation that Ms. Cline appeared to
be under the influence of methamphetamine was not based on her being
upset. It was not based on her being assaulted. It was not based on her
emotional state of mind, but rather on her physical behavior, manifestations
of being under the influence of a stimulant, first of all.

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State v. Harris

Second of all, based on the statement against interest by Ms. Cline
herself saying “I used methamphetamine in the last 24 hours.” So the State
has attempted to blur these issues and say that if we address
methamphetamine, we’re addressing the assault case. They are two
completely separate things. . . . I don’t believe she will testify that the
reason why she believed Ms. Cline was under the influence of
methamphetamine was because of her upset behavior or injuries due to the
assault. She believes she was under the influence of methamphetamine
because of objective physical manifestations that she looks for when she’s
dealing with people based on her training and experience. . . .
....
And I can’t stress strongly enough that it was also followed with a
statement against interest, which is admissible, from Ms. Cline that she had,
in fact, been using methamphetamine. So this doesn’t have anything to do
with the assault, and it doesn’t have anything to do with the symptoms of
the assault or the behavior generated by the assault. It’s strictly based on
this officer’s professional training and experience in recognizing physical
manifestations being under the influence of a stimulant such as
methamphetamine.

RP (Oct. 18, 2016) at 92-94.

The State countered that Police Officer Kellee Gately is not a drug recognition

expert, and, accordingly, the defense could not qualify Gately as an expert to testify

whether Angela Cline acted under the influence of methamphetamine. Nevertheless, the

State did not object to defense counsel asking Officer Gately whether Stephen Harris was

under the influence or Gately’s answer to the question. The State further contended that

defense counsel should not be allowed to surgically extract some observations regarding

Cline without the jury hearing what other circumstances could have affected her

demeanor that day. The State argued that, if the defense solicited testimony about Cline’s

deportment, the State could present evidence on all of Officer Gately’s observations:

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State v. Harris

This lady, Angela Cline, was bleeding. She was distraught. She was
dirty. She said she had been threatened. She said she was being held
against her will. She said her dog had been threatened, her family had been
threatened. There were all sorts of things going on with this lady.

RP (Oct. 18, 2016) at 94-95. The State also mentioned that Cline told law enforcement

that Stephen Harris had cashed her disability checks.

After conclusion of the first colloquy, the trial court remarked:

THE COURT: I need you to both start thinking about how I can
mitigate this.
So we did make provision that evidentiary prohibitions subject to
reconsideration as evidence comes forward such as opening the door. I
appreciate that whether there was or wasn’t domestic violence against Ms.
Cline is not probative of whether Mr. Harris was in possession of a
controlled substance. But the defense has cast the theory that the
methamphetamine is Ms. Cline’s and the proof of that is how she was
behaving. And that ignores her presence, state of being, manner of
expression, however one would characterize it, is affected by being
traumatized. So now what do we do?

RP (Oct. 18, 2016) at 97.

Stephen Harris’ counsel then commented that Officer Kellee Gately could testify

that Angela Cline stated she had ingested methamphetamine in the last twenty-four hours

because of the statement against interest exception to the hearsay rule. The trial court

responded:

THE COURT: But not in this case. She is not a party to this case.

RP (Oct. 18, 2016) at 98.

Following further argument, the trial court granted defense counsel’s request to

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State v. Harris

question Officer Kellee Gately as an offer of proof outside the presence of the jury.

Defense counsel questioned Officer Gately regarding her ability to detect drug use:

Q: So with regard to methamphetamine, what symptoms of
methamphetamine use did you recognize in Ms. Cline’s behavior?
A: I believed that I recognized some paranoia. Her eyes as far as
pinpointed. She was very busy, yet not everything flowed together in
sequence.
Q: When you say “pinpointed,” do you mean her pupils were
constricted?
A: That’s correct.
Q: And is that something in your training and experience that is a
sign of stimulant use?
A: Yes.
Q: Do you – did you feel at the time of that interview that you were
confusing her mannerisms associated with potentially being a victim of
assault and her feelings about Mr. Harris with the symptoms of
methamphetamine use?
A: It was a combination of everything. That’s why I arrested him
for the original charge of domestic violence. I believed her nose was
broken. She was a wreck. She was a wreck.
Q: Right. What I’m asking about is your conclusion that she
appeared to be under the influence of methamphetamine. Do you feel
strongly that that was a clear basis for you to make that conclusion?
A: It was one of my deciding factors for the jumping around in the
story, which is why I had asked her, when you befriend somebody, they
usually become very honest. So I said, “Have you been using today?”
Q: What did she say?
A: She said yes.

RP (Oct. 18, 2016) at 104-05. Officer Gately also testified that Cline’s irrational

behavior could be attributable to drug use, fear, or paranoia. Ultimately, the following

exchange occurred between defense counsel and Officer Gately:

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State v. Harris

Q: . . . Is your opinion that Ms. Cline was under the influence of
methamphetamine separate and distinct from her symptoms of having been
a victim of assault?
....
A: I believe in my honest opinion that [it] is a totality of the
circumstances. It’s not just meth. I was there for a different purpose.
Q: . . . I understand you have a different focus and it’s hard to
separate out the two.
A: Impossible, I would say. I can’t tell you if there were head
injuries onboard. It appeared she had a broken nose.
Q: And I’m not asking you for a medical diagnosis. But it is your
opinion, based on your training and experience, that she was under the
influence of methamphetamine; is that correct?
A: That was one drug, yes.
Q: Okay. And she, in fact, admitted to you using methamphetamine
that day or within the last 24 hours?
A: Yes.
Q: And notwithstanding the issues of the assault, do you still believe
that she was under the influence of methamphetamine, in your opinion,
based on your training and experience, not as a doctor, not as a [drug
recognition expert], but as a law enforcement officer with 27 years
experience?
....
MR. NELSON [Deputy Prosecutor]: Your Honor, she’s already
testified she can’t make that distinction. He’s asking the same question
over and over and over looking for a proper response.
THE COURT: She said it was impossible. I think I’m going to
sustain the objection. I have to figure out what to do. I have to figure out
what to do. It’s a stew. I mean, you made a stew.

RP (Oct. 18, 2016) at 112-14.

The trial court entertained additional argument. Stephen Harris’ counsel

remarked:

I would love to have been able to track down Ms. Cline to ask her if
it was her methamphetamine. We couldn’t find her. So we’re stuck in this
situation of an officer who told us in an interview, “yes, I think she was

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State v. Harris

under the influence of methamphetamine by her appearance and behavior
and she admitted using it,” that being relevant to whose methamphetamine
this was.
We have a case where it’s clear that the officers collected a number
of items of Ms. Cline’s from my client’s pockets at the laundromat where
they were at. It’s our theory of the case, and we should be able or entitled
to argue our theory of the case that that was Ms. Cline’s methamphetamine
and it’s significant circumstantial evidence that Ms. Cline appeared to be
under the influence. So that’s our theory. That’s what I presented in our
opening statement.

RP (Oct. 18, 2016) at 116-17. The prosecution commented:

But I think most importantly, Your Honor, I think this is all a red
herring, because possession of a controlled substance, the elements of the
offense are possession. No one can own methamphetamine, Your Honor.
It’s contraband. And whether or not Mr. Harris had it in his possession is
one question and the other question is whether or not that possession was
unwitting. And that’s a statutory defense. So, whether or not it was her
methamphetamine, we have this happen all the time where we pull over a
car; woman has the meth and said “my boyfriend said hold this because he
is going to jail.” It’s possession. It doesn’t matter whose it is. Nobody has
title to it. Nobody has ownership of that drug. It’s possession. And if he
had it in his pocket and he knew it was there, he is guilty of possession of a
controlled substance. I don’t care who bought it. I don’t care who was
using.

RP (Oct. 18, 2016) at 118. Stephen Harris’ counsel responded, but did not confront the

State’s theory that regardless of whether the methamphetamine belonged to Angela Cline,

Harris committed the crime of possession.

The trial court recessed, during which recess counsel briefed the evidentiary

question. The patient trial court then entertained further argument. Defense counsel

commented:

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State v. Harris

On the other hand, having presented the reason why we believe the
officer’s opinion that this individual was under the influence of
methamphetamine, we believe it is relevant because we believe, and it’s our
theory of the case, these two were doing laundry together; that items were
moved from pockets to pockets. The State has already elicited testimony
that my client said “that’s not mine.” We already elicited testimony from
the officer that my client was in possession of other items of Ms. Cline’s,
which they returned to Ms. Cline. So we already have a factual basis to
believe he is in possession of some of Ms. Cline’s items. The fact that Ms.
Cline was under the influence of methamphetamine and the
methamphetamine my client is accused of possessing is a used up relatively
empty bag of methamphetamine with some residue left in it. I believe it is
relevant to show that he unwittingly possessed it along with the other items
of hers pursuant to our theory of the case.
So we believe the methamphetamine, being under the influence of
methamphetamine, is admissible and relevant, and so we asking for that.

RP (Oct. 18, 2016) at 128-29. Although defense counsel argued unwitting possession, he

did not expressly claim that Stephen Harris knew not that Angela Cline handed him

methamphetamine.

The trial court finally ruled:

THE COURT: Here is my ruling, and you all do what you think is
appropriate.
I think if I had had a motion in limine before the trial to exclude
testimony about whether Ms. Cline had methamphetamine, had taken
methamphetamine, I would have had a better opportunity to manage the
case, but I didn’t. And it came out, and that’s the nature of a trial. I mean,
trials, you never know what’s going to happen and it’s a fluid circumstance.
My sense is that under ER 401 and 402, there may be some
probativeness about Ms. Cline’s physical condition and its impact on
Officer Gately’s assessment that she was under the influence of
methamphetamine, but my concern is that if I allow that in, there is no way
for me not to risk that the jury is going to be taken by the unfortunate
physical condition of Ms. Cline as she has been beaten, her nose had been
broken; she’s terrified of Mr. Harris. And he’s not on trial for that. He’s

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State v. Harris

on trial for whether or not he possessed methamphetamine, a residue
amount, at that time. And as challenging as it is for all of us, I feel like
following the law I would have to subscribe to [ER]403 here and not allow
it because it would risk—it’s going to spill over and he’s going to be
viewed by the jury as the person who inflicted that assault. And that’s not
what he’s on trial for.
....
THE COURT: But here is my problem: It’s the defense’s theory
that it’s her meth, and the fact that she appeared to have meth is, you know,
that’s not too speculative. I mean, in other words, it’s not the kind [of]
thing that I could exclude on some evidentiary basis. It does fall within
[ER]401 and 402. It’s rough. I don’t like the fact that what happened to
her happened to her and she was there in that circumstance and appearing
the way she did because of what happened to her, but I can’t change the
other aspects of the case. It is what it is.

RP (Oct. 18, 2016) at 133-35. The trial court later added:

I’m going to limit the defense from attributing the observation that
she was under the influence of meth because, as this hearing has
demonstrated, it really turns into a mini trial about what should or shouldn’t
come in along with it and it’s just too murky for me. It’s too difficult to try
to parse it out. For example, when you get to the fact that one of the
behaviors that Officer Gately based her opinion on about whether she was
or wasn’t under the effect of meth, that she declined medical attention. And
when I asked what that was, “her face was bleeding,” we just get too far
and I’m not comfortable with that. So I’m issuing, if you will, an order in
limine that we’re not going to introduce the officer’s opinion that the
witness appeared to be under the influence of meth.

RP (Oct. 18, 2016) at 144-45.

Stephen Harris elected not to testify in his defense. The trial court, over the

State’s objection, instructed the jury on the law of unwitting possession. The jury

returned a verdict of guilty, and the court sentenced Harris to twelve months.

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State v. Harris

LAW AND ANALYSIS

The sole question on appeal is whether the trial court erred when denying Stephen

Harris the opportunity to question Officer Kellee Gately as to whether, based on her

observations, Angela Cline appeared under the influence of methamphetamine. The trial

court initially, to the benefit of Harris, excluded testimony under ER 403 that Harris

assaulted Angela Cline. The trial court later excluded Kellee Gately’s testimony in part

because evidence of any effects of methamphetamine intertwined with evidence of the

effects of the assault. Allowing testimony of Cline being under the influence of the

controlled substance without permitting evidence of the assault would mislead the jury as

to the condition in which Officer Gately found Cline. Although Gately testified outside

the hearing of the jury that she deemed Cline to be under the influence, Gately also

testified that she could not distinguish between the distress and injuries resulting from the

assault with the effects of methamphetamine.

The trial court, as part of its later ruling, did not identify any evidence rule that

supported its decision. Nevertheless, the trial court noted that insertion of evidence of

Cline’s behavior would create a mini-trial on the question of what caused that behavior.

Isolated evidence of Cline suffering from the ingestion of the methamphetamine would

mislead the jury. Such a ruling incorporates concepts found in ER 403. The rule

bespeaks:

Although relevant, evidence may be excluded if its probative value

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State v. Harris

is substantially outweighed by the danger of unfair prejudice, confusion of
the issues, or misleading the jury, or by considerations of undue delay,
waste of time, or needless presentation of cumulative evidence.

We therefore analyze this appeal on the assumption that the trial court rendered a ruling

under ER 403. Stephen Harris does not contend otherwise and does not argue the trial

court failed to follow the steps required for an ER 403 ruling.

Stephen Harris bases his assignment of error in part on constitutional grounds. A

defendant’s right to an opportunity to be heard in his defense, including the right to

examine witnesses against him and to offer testimony, is basic in our system of

jurisprudence. Chambers v. Mississippi, 410 U.S. 284, 294, 93 S. Ct. 1038, 35 L. Ed. 2d

297 (1973); State v. Jones, 168 Wn.2d 713, 720, 230 P.3d 576 (2010). For purposes of

our review, we do not consider constitutional principles of assistance. Although the

accused enjoys a constitutional right to present a defense, the scope of that right does not

extend to the introduction of otherwise inadmissible evidence. State v. Aguirre, 168

Wn.2d 350, 362-63, 229 P.3d 669 (2010). An accused does not have a right to offer

incompetent, privileged, or otherwise inadmissible evidence. State v. Lizarraga, 191 Wn.

App. 530, 553, 364 P.3d 810 (2015), review denied, 185 Wn.2d 1022, 369 P.3d 501

(2016). Therefore, we focus on Washington evidentiary rules.

Relevant evidence tends to make the existence of any fact that is of consequence

to the determination of the action more probable or less probable than it would be without

the evidence. ER 401. Generally, relevant evidence is admissible. ER 402. “The

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State v. Harris

threshold to admit relevant evidence is very low. Even minimally relevant evidence is

admissible.” State v. Darden, 145 Wn.2d 612, 621, 41 P.3d 1189 (2002). We later

examine the weight of Officer Kellee Gately’s testimony of Angela Cline’s lack of

sobriety. Nevertheless, we proceed on the assumption that the testimony holds relevance

to the guilt of Stephen Harris.

ER 403 allows relevant evidence to be excluded when the danger of unfair

prejudice substantially outweighs its probative value. State v. Barry, 184 Wn. App. 790,

801, 339 P.3d 200 (2014). Trial courts have considerable discretion to consider the

relevancy of evidence and to balance the probative value of the evidence against its

possible prejudicial impact. State v. Rice, 48 Wn. App. 7, 11, 737 P.2d 726 (1987). A

decision to admit or exclude evidence is reviewed for an abuse of discretion. City of

Kennewick v. Day, 142 Wn.2d 1, 5, 11 P.3d 304 (2000). Because of the trial court’s

considerable discretion in administering ER 403, reversible error is found only in the

exceptional circumstance of a manifest abuse of discretion. State v. Gould, 58 Wn. App.

175, 180, 791 P.2d 569 (1990).

To balance the weight of Angela Cline’s purported use of methamphetamine

compared to the evidence’s misleading nature and its creation of an undue waste of time,

we analyze the law with regard to the crime charged. The trial court convicted Stephen

Harris of unlawful possession of a controlled substance, in violation of RCW

69.50.4013(1). This statute declares:

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State v. Harris

It is unlawful for any person to possess a controlled substance unless
the substance was obtained directly from, or pursuant to, a valid
prescription or order of a practitioner while acting in the course of his or
her professional practice, or except as otherwise authorized by this chapter.

RCW 69.50.4013(1) establishes a strict liability crime in that the State need not prove

knowledge of the possession. State v. Sundberg, 185 Wn.2d 147, 149, 370 P.3d 1 (2016).

Nevertheless, to reduce the harshness of this offense, courts have created an unwitting

possession defense and placed the burden on the defendant to establish the defense by a

preponderance of the evidence. State v. Sundberg, 185 Wn.2d at 149. The doctrine

permits a defendant to avoid liability if he can prove by a preponderance of the evidence

that he did not know the substance was in his possession or did not know the nature of the

substance. State v. Deer, 175 Wn.2d 725, 735, 287 P.3d 539 (2012).

On appeal as at the trial court, Stephen Harris contends that any opinion of Officer

Kellee Gately as to whether Angela Cline functioned under the influence of

methamphetamine related to his unwitting possession defense. According to Harris, the

testimony tended to show that he did not know the methamphetamine to be in his

possession because Officer Gately testified that Harris did not act as if he had ingested

methamphetamine. We question the practical logic behind this argument. Assuming

Cline to have ingested methamphetamine stored in the baggie found in Harris’ pocket, it

does not follow that Harris lacked knowledge of the baggie and its content within his

pocket. Harris could have given the methamphetamine to Cline. Cline could have

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State v. Harris

handed the methamphetamine to Harris to hold. Despite carrying the burden to show

unwitting possession, Harris never testified that he did not know the methamphetamine to

be inside his pants. He did not testify the methamphetamine accidentally landed in his

pocket. Therefore, we question the extent of the relevance of such testimony.

Spokane Officer Kellee Gately also testified that she found Angela Cline’s payee

card and cellphone in Stephen Harris’ pocket. Harris likewise did not proffer any

evidence that he lacked knowledge of the cellphone and card sitting in his pocket.

Stephen Harris emphasizes Police Officer Kellee Gately’s testimony that Harris

declared that the methamphetamine was not his and that Harris could have, with this

utterance, been claiming that he lacked knowledge of the methamphetamine being in his

pants. Nevertheless, Harris never exclaimed to Gately that he knew not of the presence

of methamphetamine. Gately’s concession that Harris could have meant to protest any

knowledge of the methamphetamine lacks a firm evidentiary foundation. Gately first

observed that Harris wanted to distance himself from the methamphetamine, without

Harris denying knowledge of the substance. Gately’s testimony as to the purpose behind

Harris’ comment incorporated speculation.

In addition to the tangential relevance of Officer Kellee Gately’s observations of

Angela Cline’s sobriety to the issue of unwitting possession, the trial court based a ruling

on witness Kellee Gately’s inability to detach her observations consistent with Angela

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State v. Harris

Cline’s drug use from her viewing the results of domestic violence. For these reasons,

we hold the trial court did not abuse its discretion.

Stephen Harris emphasizes the state Supreme Court decision in City of Kennewick

v. Day, 142 Wn.2d 1 (2000) to support his position. In Day, the city charged Doug Day

with possession of marijuana and possession of drug paraphernalia. An officer found

marijuana and a marijuana pipe in the console of Day’s car. Day denied knowledge of

the marijuana and pipe being present in his car and testified to his car previously being

repaired by an employee of a repair shop, which employee the shop fired for drug use.

The trial court prohibited testimony regarding Day’s reputation for sobriety on the ground

that such evidence did not constitute character evidence but instead addressed Day’s

earlier conduct. On this basis, the trial court ruled the evidence irrelevant.

On appeal, the Supreme Court, in City of Kennewick v. Day, determined the lower

court abused its discretion in excluding evidence of Doug Day’s reputation of avoiding

drugs. The court held the evidence relevant. The court declared in part:

When the defense of unwitting possession is raised, the defendant’s
knowledge is directly relevant to the defense of unwitting possession.
Accordingly, the universe of relevant evidence expands.

City of Kennewick v. Day, 142 Wn.2d at 11.

The facts, contentions, and rulings in City of Kennewick v. Day diverge greatly

from Stephen Harris’ appeal. Stephen Harris never testified. He provided no direct

evidence that he lacked knowledge of the presence of the methamphetamine. He sought

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State v. Harris

only to introduce a police officer’s impression of a third-party’s use of

methamphetamine. Harris never sought to introduce evidence of his reputation for

sobriety. Harris’ trial court did not rule the offered testimony irrelevant. The trial court

recognized the relevancy of the evidence but barred the evidence under ER 403. The

Supreme Court, in City of Kennewick v. Day, noted that the trial court abused its

discretion by misreading the law as prohibiting the introduction of the character evidence.

We agree with the State that the trial court might have properly permitted the

introduction of Officer Kellee Gately’s testimony that Angela Cline looked to be

influenced by methamphetamine. Nevertheless, even when evidence is admissible, the

trial court retains discretion to preclude its use under ER 403. State v. Perez-Valdez, 172

Wn.2d 808, 815, 265 P.3d 853 (2011).

We note that Kellee Gately testified, outside the presence of the jury, that Cline

told her she had imbibed methamphetamine that day. On appeal, Harris does not argue

that Officer Gately should have been able to testify to Cline’s concession of

methamphetamine use. An out-of-court statement against interest survives the hearsay

rule only with the unavailability of the declarant. ER 804(b)(3). We do not know what

attempts either party asserted to subpoena Cline in order to render Cline unavailable for

purposes of the hearsay exception. ER 804(a)(5).

The State also argues that any error in excluding testimony was harmless error.

We need not address this additional argument.

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No. 34934-9-111
State v. Harris

CONCLUSION

We affirm Stephen Harris' conviction of possession of a controlled substance.

Due to Harris' indigency, we deny the State costs on appeal.

A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.

Fearing,~'

WE CONCUR:

Pennell, A.CJ.

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