Appeal from Superior Court of King County. Docket No: 95-1-03796-4. Date filed: 12/22/95.
PER CURIAM. From a distance too far to confirm, Officer Timothy Fountain saw what looked like a drug transaction between Aaron Roberts and a young male in a central area parking lot. The officer drove into the lot to investigate. He stopped Roberts after noticing that the car he was driving lacked a rear license plate. After discovering that Roberts had an outstanding misdemeanor warrant for his arrest, Officer Fountain read Roberts his rights and asked him whether he had any contraband or weapons in the car. Roberts volunteered that he had half a "roach" in the ashtray, and gave him consent to seize it. Officer Fountain arrested Roberts for possession of suspected marijuana and on the warrant. The officer then searched the car and found a baggie containing rock cocaine. Roberts was charged and convicted of possession of cocaine.
The sole issue presented on appeal is whether the court erred in admitting testimony about the "roach" and the suspected marijuana under the res gestae exception to ER 404(b). While we conclude that the evidence was not properly admitted, any error in its admission was harmless since there was no reasonable possibility that the outcome of the trial would have been materially different had the evidence not been admitted. We therefore affirm.
At around 8 p.m., Officer Timothy Fountain was driving by the parking lot of Oscar's II, a central area nightclub, when he saw what he thought looked like a drug exchange between Roberts, who was sitting in the driver's seat of a 1978 Oldsmobile, and a young male on a bike. After the youth spotted Officer Fountain, he sped away.
As Officer Fountain drove into the lot to investigate, Roberts backed out of his parking space, and according to Officer Fountain, circled the lot before pulling into another parking space. While Roberts was driving, Officer Fountain saw him lean forward in his seat and put his left arm behind his back, as if he was doing something near his tailbone area.
Officer Fountain noticed that the car had a piece of paper attached to the rear window that did not appear to be a valid Washington trip permit and no rear license plate. He activated his emergency lights and contacted Roberts. Roberts produced an Oregon identification card but no driver's license. A computer check revealed that Roberts had an outstanding misdemeanor warrant for his arrest. While waiting for verification of the warrant, Officer Fountain told Roberts about the warrant, asked him to get out of the car and read him his Miranda *fn1 rights.
Officer Fountain asked Roberts whether there were any weapons or contraband in the car. Roberts replied there was half a "roach" in the ashtray, and gave the officer permission to search the car. Officer Fountain found the remains of a fully smoked roach and half of a roach in the ashtray. Although the items were never tested, Officer Fountain believed they contained marijuana. After the warrant was verified, Roberts was arrested for possession of marijuana and the outstanding warrant.
Officer Fountain then searched the car and found a plastic bag containing what was later identified as seven and a quarter grams of rock cocaine wedged in the crack between the bench portion of the front driver's seat and the seat back. Part of the plastic bag was visible though the crack of the seat. At the precinct, Fountain asked Roberts if he smoked crack cocaine. Roberts said he did not. According to Officer Fountain, Roberts later admitted using crack cocaine after he was told that he was under arrest for cocaine possession. Roberts disputed making the second statement. He was charged with possession of cocaine.
Roberts moved in limine to exclude any mention of the roach and the suspected marijuana based on ER 403 and ER 404(b). He argued that (1) the contents were never tested and (2) the evidence was not relevant and highly prejudicial because the jury might conclude that because he possessed marijuana, he also possessed the crack cocaine. The prosecutor responded that the evidence was an "intertwined fact" and, without it, the jury would be left to speculate why Roberts was arrested before the cocaine was found.
The court denied Roberts' motion, ruling that the evidence was admissible because it was "close in time and place and circumstances of the predicate charge[.]" The court also denied Roberts' request for a limiting instruction, ruling that an instruction would be "a comment on the evidence."
The only witnesses called to testify about the incident were Officer Fountain and Roberts. Roberts' three prior felony theft convictions were admitted into evidence. He testified that the young male on the bike was someone he knew from the neighborhood and that he gave him five dollars because he had "bought him ice cream before."
Although Officer Fountain testified that Roberts said he owned the car he was driving, Roberts denied making the statement. Instead, he claimed the car belonged to his ex-girlfriend, Michelle Holswrith, who had driven the car up from Oregon. According to Roberts, Holswrith went to London two weeks before the incident and left him with her car. The police never verified ownership of the car.
Roberts testified there were three set of keys to the car. Holswrith and Roberts each had a set and Roberts stated he kept a spare at his home for anyone to use. In the two weeks before the incident, Roberts believed about eight people had driven the car "because it was ragged and didn't nobody care who drove it." He also testified that he was trying to sell the car for Holswrith. He stated he regularly parked the car a half mile from his house on Union Street so that the car would be more visible to buyers. According to Roberts, he wrote "for sale" on the car's front window with white shoe polish but did not find it necessary to put his phone number or ...