Appeal from Superior Court of King County. Docket No: 95-1-02378-5. Date filed: 11/06/95. Judge signing: Hon. Robert Alsdorf.
PER CURIAM. Larry Tom Bates appeals from a judgment and sentence entered following his jury trial for violating the Uniform Controlled Substances Act. He contends the court erred in denying his proposed jury instruction on "mere proximity" to the drugs and in denying his motion for a mistrial for prosecutorial misconduct. We find no basis for reversal and affirm.
Auburn Police Officer Andrew Suver testified that he stopped Bates's van in the early morning hours because of erratic driving. When the officer asked Bates for his driver's license, he told him his license was suspended. Suver confirmed this and arrested Bates. When Suver shined his flashlight inside the van to search it after the arrest, he discovered on the console next to the driver's seat a syringe containing liquid and a small baggie of yellowish powder. He also found a small plastic scale on the floor. When he questioned Bates, he replied, "What drugs?" In response to the question how long he'd been "shooting methamphetamines," he responded by showing the officer track marks on his arm.
The next day during an interview, a detective asked Bates how long he had been using the drug. Bates told him 15 years, and showed him the scars on the inside of his arm. The detective also testified Bates said he was aware of the drugs found in the van.
Several witnesses testified the van was owned by someone else and was used communally by several people in Bates's household. There was testimony that the van was dirty and cluttered and had been driven earlier that evening by two other people. The defense attempted to establish that the drugs belonged to someone else.
The prosecutor began his closing argument by stating that Bates "almost accepted full responsibility" for the drugs and his drug habit during the interview with the detective. In concluding argument, the prosecutor stated:
Members of the jury: . . . Today will be a landmark day in the life of Larry Bates because you, a jury of his peers . . .
will make a decision about him and you will send him a message, and it's going to be a message . . . At that point defense counsel objected and requested a side bar. The court sustained the objection without holding a side bar and instructed: "At this point the jury's function is not to send a message. The jury will decide the questions that have been presented to it." The State then finished with a brief argument asking the jury to hold Bates "accountable" and "responsible" for being in possession of methamphetamine.
The defense argued primarily that Bates was unaware the drugs were in the van because it was dark. The defense theory was that another person had been in the van with Bates earlier that night and left the drugs behind.
After final argument, the defense moved for a mistrial based on alleged prosecutorial misconduct. The trial court denied the motion. The court also denied the following instruction requested by the defense:
Mere proximity of the defendant to an alleged controlled substance is not sufficient evidence to establish possession.
The State must prove beyond a reasonable doubt that the defendant exercised dominion and control over the alleged drugs.
Bates first contends failure to give this instruction denied him the ability to argue (1) his theory of the case that he did not know the drugs were present, and (2) an alternate theory, that he did not exercise dominion and control over the drugs and ...