Appeal from Superior Court of King County. Docket No: 93-1-07763-3. Date filed: 03/23/94. Judge signing: Hon. Robert S. Lasnik.
PER CURIAM. Ronald Donaldson appeals from the judgment and sentence entered following his conviction of one count of violating RCW 69.50.401(c), i.e., VUCSA "burn". Donaldson argues that his conviction should be reversed because the trial court failed to enter written findings and Conclusions pursuant to CrR 3.6 and permitted the State to inquire into the facts underlying Donaldson's prior VUCSA "burn" conviction. These contentions fail. Contrary to Donaldson's assertion, written CrR 3.6 findings were entered by the trial court prior to the filing of Donaldson's appellate brief. We also hold that the trial court appropriately permitted the State to inquire as to the facts of the prior "burn" conviction to impeach Donaldson's assertion that he did not represent to the undercover officer that the substance purchased was cocaine. The judgment and sentence is affirmed.
On November 12, 1993, Seattle Police Detective Kevin Mason was working as an undercover officer in a "buy-bust" operation near Second Avenue. He made eye contact with Donaldson. Mason then pointed toward his nose. Donaldson approached Mason and asked him what he needed. Mason replied, "Forty." Donaldson directed Mason to an alley. They walked two-thirds of the way into the alley and Donaldson said, "This is good." He reached into his coat pocket and removed what appeared to be two rocks of cocaine. He gave the rocks to Mason in exchange for $40.
As Mason left the alley, he gave a "good buy" signal to the surveillance officer who radioed a description of Donaldson to an arrest team. Donaldson was apprehended shortly thereafter. The two twenty dollar bills used by Mason to pay for the suspected rocks were recovered from Donaldson.
Subsequent laboratory analysis revealed that the substance purchased by Detective Mason did not contain a controlled substance. Donaldson was charged with VUCSA "burn."
At trial, Donaldson asserted that he did not violate the law by selling a non-controlled substance in lieu of a controlled substance. Rather, Donaldson testified that he thought that Detective Mason was a homeless person who wanted to buy "work." "Work" is counterfeit rock cocaine that is resold to unsuspecting purchasers as actual cocaine. Donaldson stated that he did not represent to Mason that he was selling cocaine nor did he intend to.
During cross-examination, the State asked Donaldson whether he had ever sold "work" to someone after representing that the substance was actually cocaine. Donaldson denied doing so. The State was then permitted to inquire into the facts underlying Donaldson's prior conviction of VUCSA "burn."
Donaldson was convicted as charged and a standard range sentence was imposed.
Donaldson first argues that his conviction should be reversed due to the trial court's failure to enter written findings and Conclusions as required by CrR 3.6 following the pretrial suppression hearing. Donaldson cites State v. Smith, 68 Wash. App. 201, 842 P.2d 494 (1992) in support of this contention.
Unlike Smith, this court is not faced with a wholesale failure to comply with CrR 3.6. Findings and Conclusions were prepared and signed by the trial court prior to the filing of Donaldson's brief. Although the findings were not filed until after appellant's brief was filed, there is no indication that the findings have been tailored in response to the arguments raised on appeal. Reversal on this ground is, therefore, unwarranted.
Donaldson next argues that the trial court committed reversible error in permitting the State to cross-examine him regarding the facts underlying his prior conviction for VUCSA "burn." Donaldson argues that the evidence was not admissible under ER 404(b) because the underlying facts were only relevant for the improper purpose of implying that the transaction with Detective Mason was in conformity with Donaldson's prior behavior. *fn1 Donaldson reasons that the trial court's ruling obviates the purpose of ER 404(b) because it inhibits "offenders with prior convictions from telling their stories to the jury because the logical deduction is that if they did it before, they did it again." Donaldson's reliance on ER 404(b) analysis is misplaced.
The trial Judge specifically stated that he was not relying on ER 404(b) as a basis for his ruling. Instead, the court noted that Donaldson's own testimony entitled the State to cross-examine him on the issue of whether he had represented "work" as actual cocaine to purchasers in the past. The trial court's analysis is correct.
Donaldson testified on direct that he only sold "work" and that he did not sell cocaine. He presented himself as a homeless person who was selling a harmless mixture of wax and baking soda to others for resale as counterfeit cocaine. He testified that he would tell the purchasers that "It's work, they know." He stated that he thought Detective Mason wanted to purchase "work" because Mason never specifically said that he wanted cocaine. In short, Donaldson denied that he negotiated a ...