¶41 (dissenting) — I respectfully dissent from the majority’s reversal of Powell’s conviction. I disagree with the majority’s holding that lack of expert testimony about the potential effects of methamphetamine on Powell was reversible error for three reasons.
Hunt, J.¶42 First, although Powell objected generally to testimony about his ingestion of methamphetamine, he did not specifically object to the lack of expert testimony about the potential effects of methamphetamine on persons in general or on him in particular. Nor did he offer such expert testimony himself or ask the trial court to condition admissibility of his methamphetamine ingestion on the presentation of such expert testimony. Instead, he simply denied having ingested methamphetamine or being under the influence.
¶43 The law is well settled that to preserve an objection for appeal, it must be specific and we may not reverse a conviction on a nonconstitutional ground raised for the first time on appeal. See, e.g., State v. Boast, 87 Wn.2d 447, 452, 553 P.2d 1322 (1976). The majority’s holding contravenes this rule. Thus, the lack of expert testimony, never proffered or requested at trial, cannot support reversal of Powell’s conviction.
¶44 Second, even if the principles of appellate review allowed us to consider the merits of this issue, the majority cites no law for the proposition that lack of expert testimony about the “actual or potential effects of methamphetamine on Powell” is reversible error, especially where no party noted this alleged deficiency below. And I am aware of none.
*825¶45 Third, that the trial court did not sua sponte condition the admissibility of Kincaid’s testimony, about Powell’s recent ingestion, on the presentation of expert testimony about the actual or potential effects of methamphetamine does not automatically make the ingestion evidence less relevant or unduly prejudicial; nor does it demonstrate that .the trial court abused its discretion in allowing Kincaid’s testimony. The majority expressly acknowledges that Powell’s recent ingestion (1) was relevant to his state of mind — what he was intending to do if he gained entry to Williams’ home and, more specifically, whether he intended to commit a crime — and (2)
potentially completed the picture of someone who was upset with Williams about keeping his son from him, had threatened to kill her for doing so, and was dressed in camouflage clothing and carrying a loaded, fully-functional firearm. The drug use evidence could have been logically relevant to explain Powell’s seeming determination to enter Williams’s home.
Majority at 818.6
¶46 The majority further notes the well-settled rule that trial courts have broad discretion in deciding the admissibility and relevance of evidence and that we may reverse only upon a showing of abuse of that discretion. State v. Stanton, 68 Wn. App. 855, 861, 845 P.2d 1365 (1993) (citing State v. Robtoy, 98 Wn.2d 30, 42, 653 P.2d 284 (1982); State v. Thompson, 47 Wn. App. 1, 12, 733 P.2d 584, review denied, 108 Wn.2d 1014 (1987)). Yet the majority asserts the lack of expert testimony about the effects of methamphetamine was prejudicial because it left the jurors to speculate that Powell was a “law-breaking drug user.” Majority at 818. In my view, the record does not support this assertion.
*826¶47 The record shows that the trial court carefully weighed the probative value against the prejudicial effect of Powell’s ingestion of methamphetamine before exercising its discretion to admit eyewitness testimony that Powell had ingested methamphetamine shortly before going to Williams’ home and that Powell “wasn’t being himself.” Minimizing any undue prejudice, the trial court allowed only part of the State’s proffered evidence about Powell’s drug use: It expressly excluded Williams’ testimony that (1) she believed Powell was under the influence of drugs while he was trying to break into her home and (2) she was trying to keep her son away from Powell because Powell was a drug user. Contrary to the majority’s assertion, the record shows that the trial court specifically excluded evidence that tended to show Powell was a “law-breaking drug user.” Majority at 818. The trial court thus exercised its discretion to exclude this prejudicial evidence under ER 404(b) and to allow only limited evidence of Powell’s recent use as probative of his state of mind and intent at the time of the crime.7
¶48 Moreover, the record does not support the majority’s assertion that the lack of expert testimony was prejudicial to Powell so as to warrant reversal of his conviction. Even if the trial court had excluded Kincaid’s relevant testimony about observing Powell ingesting methamphetamine before leaving for Williams’ house, there is ample other evidence in the record to show that the jury would still have convicted Powell: (1) Powell’s prior threats that he would kill Williams if she prevented him from seeing their son; (2) eyewitness Kincaid’s testimony that Powell was going to Williams’ home to take custody of his son and that he “wasn’t being himself”; (3) Powell’s contrary testimony at trial that he had gone to Williams’ house to retrieve a bicycle he had left there; (4) Powell’s going to Williams’ *827home armed with a gun, unannounced, and attempts to gain entry surreptitiously, without knocking on the door; (5) eyewitness Officer Watson’s testimony that he had observed Powell hunched over, apparently working Williams’ door handle to gain entry; (6) Powell’s corresponding fabrication on the witness stand at trial that he did not try to open Williams’ door but instead knocked and rang the doorbell; (7) Williams’ clear testimony to the contrary; and (8) Powell’s initial flight, “conspicuous ignoring” of Officer Watson’s command to stop, and subsequent attempts to break away and to flee after Watson apprehended him. The law is clear that a jury can consider flight as evidence of guilt. State v. Price, 126 Wn. App. 617, 645, 109 P.3d 27 (2005) (citing State v. Bruton, 66 Wn.2d 111, 112-13, 401 P.2d 340 (1965)).
¶49 According due deference to the trial court in matters of evidence admissibility, I disagree with the majority’s implicit holding that the trial court abused its discretion and violated ER 404(b) when it allowed limited, admittedly relevant evidence of Powell’s recent ingestion of methamphetamine without sua sponte conditioning admissibility on the production of expert testimony. In my view, the record does not support the majority’s assertion that the lack of expert testimony about the effects of methamphetamine was prejudicial and warrants reversal. I would affirm Powell’s jury conviction for attempted first degree burglary while armed with a firearm.
Review granted at 163 Wn.2d 1017 (2008).
To the majority’s recounting of the facts, I would add that (1) Powell intended to gain entry into Williams’ home surreptitiously and (2) he acted on this intent when he went to Williams’ home unannounced to remove his son by force if necessary, snuck onto her front porch, and tried to open her front door and then her back door without first knocking, without ringing the doorbell, without calling out, and without seeking her consent to enter.
Furthermore, the limited testimony about Powell’s use of methamphetamine just before going to Williams’ house was consistent with other witnesses’ testimony about Powell’s acting strangely just before, during, and after the burglary of Williams’ house. Similarly, courts frequently allow evidence that a defendant had been drinking alcohol just before committing a specific intent crime without requiring expert testimony about the effects of alcohol.