¶33 Even before Jason Vincent Powell's trial, his attorney strenuously objected to the State's mentioning anything about Powell's alleged drug use. The objection was sustained regarding the proposed testimony by witness Amber Williams of drug use because it would have been too prejudicial. Nevertheless, the trial court allowed witness Gregory Kincaid to testify *Page 90 Powell ingested methamphetamine before the attempted burglary. However there was no showing how Powell's alleged methamphetamine use had any relevance to whether Powell was guilty of the attempted burglary. Moreover no expert testified about the effect methamphetamine would likely have on a person, leaving the jury to speculate on what inference should be accorded this apparently unconnected testimony.
¶34 Powell was convicted, but the Court of Appeals reversed, holding that testimony about Powell's alleged drug use was not harmless error. But now our majority reverses the Court of Appeals, asserting Powell "failed to preserve his ER 404(b) objection for appeal and has failed to demonstrate any manifest constitutional error supporting reversal." Majority at 74-75. But Powell did in fact preserve his evidentiary objection for appeal when his attorney expressly objected to the mention of drugs during the trial. The Court of Appeals got it right.
¶35 Amber Williams was not permitted to testify about Powell's alleged drug use. During the pretrial offer of proof regarding Williams' testimony, defense counsel objected toany reference to drug use in the trial, not just Williams' testimony:
I don't want the word drug used anywhere in this trial. It's not a trial about drugs and I'd prefer — my problem is you say methamphetamines and drugs, he's going to jail. I don't want that to happen. I — it's not a trial about drugs. I want to keep that out in particular.
1 Verbatim Report of Proceedings (RP) at 12 (emphasis added). The majority asserts, "[w]hen defense counsel made this statement, the only testimony mentioned by the State was that of Williams." Majority at 77. But this objection preserved his objection to any drug testimony for appeal. As such it is not necessary to establish a manifest constitutional error to reverse the trial court.
¶36 Gregory Kincaid was permitted to testify he saw Powell ingest methamphetamine before the attempted burglary. *Page 91 Supposedly Kincaid's testimony was used to show Powell was in an agitated state of mind during the attempted burglary. However in the pretrial offer of proof, defense counsel specifically objected to the inclusion of Gregory Kincaid's testimony in the trial, saying, "I'd ask that you not include . . . the testimony." 1 RP at 39. Thus defense counsel's objection to Kincaid's testimony about Powell's alleged drug use also preserved this issue for appeal.
¶37 ER 401 states "`[R]elevant evidence' means evidence having any tendency 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." "Evidence is relevant if a logical nexus exists between the evidence and the fact to be established." State v. Burkins,94 Wn. App. 677, 692, 973 P.2d 15 (1999). But testimony Powell allegedly used methamphetamine is not relevant to determine if he attempted to commit a burglary. That Powell ingested methamphetamine does not have any tendency to make it more likely he attempted to commit a burglary. There is no logical nexus between Kincaid's testimony and the fact that Powell attempted to commit a burglary. Although it was certainly prejudicial.
¶38 The majority correctly states, "[c]ourts may admit ER 404(b) evidence to prove the defendant's state of mind where the misconduct comes to bear on the defendant's mental state at the time of the alleged offense." Majority at 81; State v.Acosta, 123 Wn. App. 424, 434-35, 98 P.3d 503 (2004). The majority asserts, "the State offered the drug use evidence to show Powell's agitated mental state when he went to Williams' home." Majority at 82. Even so, how is this "mental state" relevant here? Moreover admitting Kincaid's testimony under 404(b) did not help prove Powell's state of mind during the alleged attempted burglary. Kincaid's testimony only showed Powell ingested methamphetamine, not what state of mind Powell was in when he went to Williams' home. *Page 92
¶39 Even if testimony Powell used methamphetamine could ever be relevant to prove any element of this crime, an expert witness is still needed to explain the effects of methamphetamine on a person. A jury would not know these effects without an expert witness' testimony. The Court of Appeals correctly stated,
State v. Powell, 139 Wn. App. 808, 818, 162 P.3d 1180 (2007).The problem is that the State did not offer any expert testimony to explain the actual or even potential effects methamphetamine could have had on Powell. Thus the jurors were left to speculate on this question from their own knowledge, knowing only that Powell was a law-breaking drug user.
¶40 Furthermore, even if relevant, Kincaid's testimony should also have been excluded under ER 4039 because it was misleading to the jury without the aid of an expert witness to demonstrate its relevant purpose. "An ER 403 analysis must be applied to facts on a case-by-case basis." State v.Cohen, 125 Wn. App. 220, 226, 104 P.3d 70 (2005). The trial court judge supposedly weighed the probative value of admitting Kincaid's testimony against its prejudicial effect and found the probative value outweighed any prejudice saying, "that's the issue that we have here, is whether he intended to just go over and talk to her or whether he intended to commit some other crime." 1 RP at 40-41. However how evidence a person ingested methamphetamine is probative to prove a person intended to commit a crime is left to speculation. There is no probative value whatsoever in knowing Powell ingested methamphetamine. On the contrary, it is only prejudicial. There was nothing to "weigh."
¶41 Although Powell did not object to the absence of an expert witness, that would not have been a proper objection *Page 93 in any event since it was up to the State to decide who it would call to the stand. However Powell did object to the drug testimony, which is the proper objection here. I would affirm the Court of Appeals.
¶42 I dissent.
C. JOHNSON, J., concurs with SANDERS, J.