State v. Lee

Dooley, J.

¶ 1. Defendant appeals his convictions on two counts of felony sale of cocaine, possession of marijuana, and attempting to elude a police officer. He argues that he was unfairly prejudiced by the admission of photographic evidence of two guns the police found during searches of defendant’s home and vehicle. Defendant also challenges the court’s jury instructions. We affirm.

¶ 2. In August 2000, defendant was living in Pownal with his girlfriend and her mother, Beverly Washington. Beverly became concerned that defendant was dealing drugs, and she contacted law enforcement authorities. Eventually, Beverly spoke with a trooper *422assigned to the Southern Vermont Drug Task Force (SVDTF) and agreed to assist him in an investigation of defendant’s activities. Thereafter, Beverly purchased, cocaine from defendant on two occasions while wearing a hidden recording device. The investigation ended when Beverly informed her contact at SVDTF that defendant had acquired two guns. The information prompted the trooper to arrest defendant.

¶ 3. On August 30, 2000, the police were watching defendant’s residence when they saw defendant drive towards Route 7. The officers signaled for defendant to pull over, but he drove away. After some pursuit, defendant pulled his vehicle over to the side of the road, jumped out of the still moving vehicle, and ran. The police eventually caught up with defendant, arrested him, and searched his home and vehicle pursuant to a search warrant. During the search of defendant’s car, the police found an unloaded .410 caliber gun on the driver’s side floor. Another gun, along with marijuana, was found in a closet off of the bedroom defendant shared with his girlfriend.

¶ 4. On August 31,2000, the State filed informations in district court charging defendant with attempting to elude a police officer, possession of marijuana, and two counts of felony sale of cocaine. In May 2002, defendant filed notice with the court that he intended to raise entrapment as an affirmative defense. Defendant also filed motions in limine to exclude certain evidence, two of which are relevant to this appeal. The first sought to exclude photographic evidence of the gun found in defendant’s car and the gun found in the bedroom where defendant was staying. Defendant argued that the gun evidence would unfairly prejudice him because it lacked any probative value. Defendant’s motion noted that because he was a previously-convicted felon, possession of the guns was a federal offense, and he had already been convicted and sentenced for this offense in federal court.

¶ 5. The second motion in limine related to evidence of a nighttime intrusion into defendant’s residence by two men sometime between August 24 and August 28, 2000. The intruders ransacked defendant’s room, assaulted him,, and tied up him and his girlfriend. The intruders shouted references to crack cocaine during the break-in and assault. Defendant argued that evidence of the home invasion was overly prejudicial and irrelevant to the charges against him.

¶ 6. The court excluded evidence of defendant’s federal gun conviction and the. intrusion into, defendant’s home, and admitted the photographs of the guns. The court found that the gun evidence was probative of three issues. First, the presence of a gun in defendant’s *423car-could explain why he ran away from the police. Second, the guns were tools of the drug trade. Third, the fact that he possessed two firearms could rebut an inference that Beverly and the police entrapped him into selling cocaine — defendant’s primary defense to the drug-sale charges.

¶ 7. Before the second day of trial began, defendant’s attorney announced that he wanted to present evidence about the break-in. He argued that the gun evidence was so prejudicial to defendant that he was compelled to rebut it by introducing the break-in to support defendant’s claim that he obtained the guns for protection. Noting that defendant’s decision was a strategic one, the court ruled that it would permit him to introduce limited evidence about the break-in. The jury eventually convicted defendant of all the charges against him, and this appeal followed.

¶ 8. We first address defendant’s claim that the trial court erred in admitting the gun evidence. In deciding whether to admit evidence, the court must make an initial determination that the evidence is relevant. Y.R.E. 402 (“All relevant evidence is admissible, except as limited by constitutional requirements or as otherwise provided by statute ____ Evidence which is not relevant is not admissible.”). Relevant evidence encompasses any evidence that makes the existence of a fact that is “of consequence to the determination of the action” more probable than not. V.R.E. 401. If relevant, the court may still exclude the evidence “if its probative value 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.” V.R.E. 403.

¶ 9. Defendant argues that evidence of his gun possession was irrelevant to the crimes for which he was charged, and, even if relevant, its probative value was so limited and its prejudicial impact so great that it had to be excluded under Rule 403. The State responds that evidence of the gun found in the closet was relevant to show he possessed the marijuana also found in the closet, and evidence of the gun found in the car was relevant to show his motive to elude the police when they attempted to arrest him.

¶ 10. The decisions from other jurisdictions, particularly from the federal courts, overwhelmingly support the main ground on which the court relied — that the guns are relevant to show defendant is a *424drug dealer.1 Thus, in a leading case, the United States Court of Appeals for the Second Circuit held: “Experience on the trial and appellate benches has taught that substantial dealers in narcotics keep firearms on their premises as tools of the trade almost to the same extent as they keep scales, glassine bags, cutting equipment and other narcotics equipment.” United States v. Wiener, 534 F.2d 15, 18 (2d Cir. 1976). Other circuits have affirmed admission of gun evidence on the same rationale. See United States v. Martinez, 938 F.2d 1078, 1082-83 (10th Cir. 1991) (admitting evidence of semi-automatic submachine gun found in house defendant entered during drug transaction as “tools of the trade”) (collecting cases); see also United States v. Ward, 171 F.3d 188, 195 (4th Cir. 1999) (“Guns are tools of the drug trade and are commonly recognized articles of narcotics paraphernalia.”); United States v. Price, 13 F.3d 711, 719 (3d Cir. 1994) (recognizing that evidence of gun possession was highly probative of drug conspiracy); United States v. Fagan, 996 F.2d 1009, 1015 (9th Cir. 1993) (affirming admission of evidence of a gun and ammunition found in residence of defendant charged with possession and distribution of cocaine). Defendant argues that this relevancy theory does not apply in this case because the drug sales occurred before defendant acquired the guns. The relevancy theory does not depend on the use of the guns in the drug sale.2 See Martinez, 938 F.2d at 1083 (explaining that it is *425“basically immaterial to the admissibility inquiry” whether defendant has been charged with an offense involving use of the gun); State v. Smith, 1992 WL 61363, No. CA-8715, at *3 (Ohio Ct. App. Mar. 16, 1992). The dissent emphasizes that defendant obtained possession of the guns after the date of the drug sales for which he is charged. While the time gap between the drug sales and the possession of the guns may go to the weight of the evidence, we do not believe that it makes the gun evidence irrelevant, as the dissent argues.3 In fact, defendant had owned the guns before the drug sales, but had left them with a friend, apparently because it was a federal offense for defendant to possess a gun.

¶ 11. In addition to challenging relevancy, defendant makes the stronger argument that the gun evidence should have been excluded under Rule 403 as unduly prejudicial. Here, however, defendant must overcome a very deferential standard of review. Rule 403 rulings are “highly discretionary,” State v. Gibney, 2003 VT 26, ¶ 23,175 Vt. 180, 825 A.2d 32, even more so when they refuse to exclude evidence because the rule provides that the danger of unfair prejudice must substantially outweigh the probative value of the evidence. State v. Percy, 158 Vt. 410, 415, 612 A.2d 1119, 1123 (1992). “Absent an abuse of discretion, in which the court either totally withholds or exercises its discretion on clearly untenable or unreasonable grounds, the trial court’s evidentiary ruling stands on appeal.” State v. Ogden, 161 Vt. 336, 341, 640 A.2d 6, 10 (1993). Defendant’s prejudice argument is essentially that the jury would give too much weight to the gun evidence, especially because defendant is black, finding that he was a drug dealer solely because he possessed guns.

*426¶ 12. We conclude that the balance to be struck falls within the wide discretion of the trial court. See Ward, 171 F.3d at 195 (decision whether to admit gun evidence in a drug sales prosecution must be made on a case-by-case basis by the trial court). The trial court noted that the guns were probative of whether defendant was involved in the drug transactions, and that possession of firearms is common in Vermont so the danger of unfair prejudice was minimized. The dissent claims the gun evidence was prejudicial because it depicted defendant as a dangerous person and cumulative because neutral evidence could have established defendant’s possession of the marijuana. The dissent then goes on to do its own balancing of the gun’s probative weight versus the danger of unfair prejudice or confusion of the issues, concluding that the “combination of prejudice and cumulativeness tips the 403 scales toward the side of exclusion,” post, ¶ 36, so that the court’s admission was error. “Our precedents have not required that the trial court specify precisely the weight it assigns to probative value. or prejudicial effect or specify why one overweighs the other.” State v. Derouchie, 153 Vt. 29, 35, 568 A.2d 416, 419 (1989). We find no abuse of discretion in the decision to admit the gun evidence under Rule 403.

¶ 13. The dissent further asserts that the trial court’s error in concluding that the prejudicial effect of the gun evidence did not substantially outweigh its probative value under Rule 403 was not harmless and requires reversal. Under our rules, erroneous admission of evidence is harmless if the jury would have returned a guilty verdict regardless of the error. State v. Wright, 154 Vt. 512, 519-20, 581 A.2d 720, 725 (1989); see V.R.Cr.P. 52(a) (“Any error ... which does not affect substantial rights shall be disregarded.”). The dissent speculates that the gun evidence so influenced the jury’s consideration of defendant’s entrapment defense that the verdict is compromised. Because we decide that the court’s decision was within its discretion, we do not reach the question of whether such an error would be reversible.

¶ 14. Defendant fares no better in arguing that the court should have examined the admissibility of the gun evidence under Rule of Evidence 404(b). Rule 404(b) prohibits “[ejvidence of other crimes, wrongs, or acts” to prove an accused’s bad character, but permits such evidence as “proof of motive, opportunity, intent, preparation, plan, knowledge, identify, or absence of mistake or accident.” Defendant claims that the trial court failed to specifically articulate the reason it admitted the evidence under Rule 404(b). This argument is raised for the first time on appeal. Defendant never argued to the trial court that the gun evidence was inadmissible bad act evidence intended to demonstrate *427defendant’s character. Thus, the argument is not preserved for our review. V.R.E. 103(a)(1); State v. Lettieri, 149 Vt. 340, 343-44, 543 A.2d 683, 685 (1988).

¶ 15. Even if defendant had preserved the argument, the result would be no different because he has not explained how the mere possession of a firearm amounts to a bad act. The trial court’s ruling recognizes that gun ownership in Vermont is not unusual. The fact that defendant was convicted of possessing the guns unlawfully does not alter the analysis because the jury was unaware defendant was prohibited from possessing a firearm and of his resulting conviction. Absent evidence to demonstrate that defendant’s gun possession was somehow wrongful, the court was not required to analyze admission of the evidence under a Rule 404(b) standard.

¶ 16. Defendant also argues that the admission of the gun evidence was reversible error because it required him to explain why he possessed them by presenting testimony about the home invasion. Defendant characterizes his circumstances as a Hobson’s choice, because although he knew the home invasion evidence was prejudicial, he was forced to introduce it due to the trial court’s ruling on the gun evidence.

¶ 17. Defendant’s argument is unpersuasive. The trial court’s obligation is to rule on admissibility questions prior to trial when the evidence may affect defense strategy. See State v. Ryan, 135 Vt. 491, 497, 380 A.2d 525, 528-29 (1977) (directing trial court to rule on motion at inception of trial if ruling will affect defense strategy). After an admissibility ruling, it is the defendant’s decision how to proceed with trial strategy. See State v. Byrne, 149 Vt. 257, 263, 542 A.2d 667, 671 (1988) (holding that once defendant decided to open the door to a line of questioning, defendant could not claim error on appeal). Defendant adopted the trial strategy of showing the home invasion although, in retrospect, it may have reinforced the impression that defendant wanted to avoid — that he obtained the guns to combat the kind of violence associated with drug dealing. As a result, the testimony focused in detail on the guns, where the references to them would otherwise have been brief. Defendant, not the trial court, bears the responsibility for these choices.

¶ 18. Defendant’s last challenge is to the court’s jury instruction, explaining that evidence of defendant’s “alleged prior bad acts” had been admitted, but the evidence could be considered for a limited purpose only. The court explained that such evidence cannot be used to *428prove defendant has a bad character, and that because of this character, he committed the offenses charged. Defendant claims the instruction labeled the gun evidence as “bad,” thereby causing the prejudice the court said was absent from the mere ownership of guns in Vermont. He also contends that the court did not put the instruction in context by failing to identify the evidence to which it related and to explain its proper purpose.

¶ 19. We review this last claim for plain error because defendant did not object to any portion of the jury instructions, including the instruction he now asserts was erroneous. V.R.Cr.P. 30; State v. Little, 167 Vt. 577, 578, 705 A.2d 177, 179 (1997) (mem.). To prevail under this standard, defendant must show that the error was so grave and prejudicial that “failure to recognize it would strike at the heart of defendant’s constitutional rights or result in a miscarriage of justice.” State v. Carrasquillo, 173 Vt. 557, 559, 795 A.2d 1141, 1144 (2002) (mem.). As we discussed above, defendant’s possession of the guns was not a bad act, and there is no indication that the jury would have thought it so. Because we have no transcript of a jury charge conference to show how the charge was constructed, we do not know why the court included a bad act charge or to what evidence it referred. See V.R.Cr.P. 26(c) (requiring court to give a limiting instruction, “if requested,” when evidence of “other criminal offenses” is admitted). In any event, we cannot conclude that this instruction prejudiced defendant and certainly cannot conclude that it struck at the heart of defendant’s constitutional rights or resulted in a miscarriage of justice.

Affirmed.

We agree with the State that the gun found in the closet was admissible to show defendant possessed the drugs also found in the closet. The evidence discloses that defendant admitted to the police officer that he owned the gun.

We cannot agree, however, that evidence of the gun found in the car was relevant to show defendant’s motive for fleeing from the police. The jury members were not aware that defendant’s possession of the gun was a federal crime, and, as a result, they could not understand that defendant would flee from the police to avoid being found with the gun. Moreover, defendant was charged with attempting to elude a police officer, 23 V.S.A. § 1133, and this is a strict liability offense that does not contain an element of intent. State v. Roy, 151 Vt. 17, 26-27, 557 A.2d 884, 890-91 (1989). Thus, we find that defendant’s motive in fleeing from the police was irrelevant to the offense.

The dissent characterizes this decision as a per se ruling that guns are always relevant in a drug prosecution. Our holding is not so broad. We simply affirm the trial court’s assessment that in this case, given our broad relevance standard, the evidence of the guns made it more probable than not that defendant sold drugs. See V.R.E. 401.

The dissent also concludes that the guns had ‘‘infinitesimal probative value,” post, ¶ 24, because of the other evidence linking defendant to the drug sales. This comparison is not the proper method for determining relevancy because “[t]he test of relevancy is... not whether the evidence makes the proposition for which it is offered more probable than competing propositions, but rather whether the evidence has any tendency to *425establish (or refute) the proposition.” Reporter’s Notes, V.R.E. 401. At the time the court ruled on the motion in limine, defendant had not admitted to the drug sales, and thus the State was required to prove the offenses with which he was charged including that defendant was engaged in “knowingly and unlawfully selling cocaine,” 18 V.S.A. § 4231(b)(1). As we hold above, the gun evidence was relevant to the State’s proof.

The dissent contends that defendant’s acquisition of the guns was irrelevant as a matter of law because it was so far removed in time from the drug transactions. Although situations exist where acts are too remote to be relevant, such is not the case here where defendant obtained the guns within two weeks of the drug sales. See State v. Winter, 162 Vt. 388, 397-98, 648 A.2d 624, 629-30 (1994) (concluding prior act that occurred four years previously too remote); Bradley v. Buck, 131 Vt. 368, 370-71, 306 A.2d 98, 100-01 (1973) (affirming exclusion based on remoteness where over three years passed between events).