State Of Washington, V. Cody Thomas Moehrle

• Court: Court of Appeals of Washington
• Decided: September 27, 2021
• Docket: 82127-0
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON, ) No. 82127-0-I ) Respondent, ) DIVISION ONE ) v. ) UNPUBLISHED OPINION ) CODY MOEHRLE, ) Appellant. ) )

ANDRUS, A.C.J. – Cody Moehrle challenges his conviction for first degree

unlawful possession of a firearm. He argues the trial court erred in denying his

motion for a mistrial following a police officer’s violation of a pretrial order. Because

the trial court sustained a defense objection to the officer’s testimony, struck that

evidence, and instructed the jury to disregard it, the court did not abuse its

discretion in denying Moehrle’s motion for mistrial. We affirm Moehrle’s conviction.

Moehrle also requests remand for resentencing in light of State v. Blake,

197 Wn.2d 170, 481 P.3d 521 (2021). The State concedes that remand for

resentencing is appropriate to correct Moehrle’s offender score. We accept the

State’s concession and remand for resentencing. No. 82127-0-I/2

FACTS

On the morning of May 24, 2020, Alison Mulcahy found Cody Moehrle lying,

unresponsive, in the first floor hallway of her apartment building while walking her

dog. Moehrle, whom Mulcahy did not recognize, was lying on his side, propped

up on his elbow, with his eyes closed, and was surrounded by shopping bags,

seemingly full of personal belongings. Mulcahy asked Moehrle if he was okay and

if he could hear her. Moehrle moaned but did not otherwise respond. Mulcahy, a

clinical psychologist with experience in substance abuse treatment, believed that

Moehrle was under the influence of opiates and may have overdosed. She called

law enforcement for help, and then noticed Moehrle had a firearm near his waist.

When police officers arrived, Moehrle was still on the floor, lethargic and

breathing as if asleep. The officers removed the firearm from a leather holster

looped through Moehrle’s belt. The firearm, a Smith and Wesson pistol, was fully

loaded with a round in the chamber. The police subsequently determined the gun

was operable.

After removing the firearm, the officers handcuffed Moehrle and led him

from the building. While Moehrle appeared impaired and was initially slow to

respond to the officers, once he woke up he was able to respond to the officers’

questions. He appeared to understand what the police officers said to him and

was able to provide biographical information to them, and the officers had no

difficulty understanding his responses. When police escorted him out of the

building, Moehrle asked them to bring the shopping bags with them. When law

enforcement inventoried the shopping bags, they found a SIG Sauer pistol

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magazine inside a black zippered nylon bag. The magazine was fully loaded with

the same type of ammunition as the firearm at Moehrle’s waist.

Once outside the building, although still groggy, Moehrle conversed freely

with the officers. The Seattle Fire Department examined Moehrle, and once

medically cleared, Moehrle was arrested for unlawfully possessing a firearm.

The State charged Moehrle with unlawful possession of a firearm in the first

degree. At trial, Moehrle stipulated to the fact that he had a prior residential

burglary conviction, had received notice that he was ineligible to possess a firearm,

and knew he was prohibited from possessing a firearm. Moehrle also did not

contest the fact that he possessed a firearm on May 24, 2020. He contended,

however, that he was too intoxicated to know he possessed it.

Before trial, the court granted a defense motion in limine to exclude

evidence that the firearm was stolen. The State did not object, stating it had no

intention of eliciting that information at trial. During the State’s direct examination

of Officer Neil Collins, when asked why Moehrle was arrested, Officer Collins

responded, “For possession of a stolen firearm and possession of --.” His

response was cut off by a defense objection. The court sustained Moehrle’s

objection to this evidence, struck it from the record and instructed the jury to

“disregard the last part of that answer.”

Moehrle moved for a mistrial, arguing that the officer’s statement about the

stolen firearm violated the court’s order in limine, and even though stricken, the

statement was so prejudicial that any instruction to disregard it could not cure the

prejudice. The State represented that it had advised the testifying officers not to

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mention the fact that the gun was stolen. And it argued that because the court had

quickly granted the motion and admonished the jurors to disregard it, any prejudice

had been alleviated. The court denied the motion, reasoning:

In this case there was a statement by the officer that Mr. Moehrle was arrested for possession of a stolen firearm, rather than simply unlawful possession of a firearm. The argument is that that is prejudicial to Mr. Moehrle because there’s an indication that perhaps the firearm was stolen. That prejudice is mitigated by the fact that he’s not on trial for possession of a stole[n] firearm, so the jury may believe that the firearm wasn’t stolen in the end.

Beyond that, there was an immediate objection, there was an immediate admonishment to the jury to disregard that statement and not consider it. The jury is presumed to follow that instruction. It happened fast, and given the defense in this case, which is that Mr. Moehrle didn’t knowingly possess the firearm at all, how it came to be in his possession really is immaterial and not something that is going to prejudice the jury. For all those reasons, I will deny the motion for mistrial . . . .

Defense counsel subsequently noted that she did not intend to request any

additional curative instruction regarding the possession of a stolen firearm

comment “only because I just don’t think it would unring the bell and I think it would

actually just draw attention to the phrase.”

The jury convicted Moehrle as charged, and the court sentenced him to an

18-month, prison-based Drug Offender Sentencing Alternative sentence, based on

an offender score of 3. His offender score included a 2018 conviction for the

unlawful possession of a controlled substance. Moehrle appeals both his

conviction and sentence.

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ANALYSIS

A. Mistrial

Moehrle contends the trial court erred in denying his motion for mistrial

because Officer Collins’s statement that Moehrle was arrested for possessing a

stolen firearm denied him a fair trial.

We review a trial court’s ruling on a mistrial motion for abuse of discretion.

State v. Rodriguez, 146 Wn.2d 260, 269, 45 P.3d 541 (2002). A trial court should

grant a mistrial “only when the defendant has been so prejudiced that nothing short

of a new trial can insure that the defendant will be tried fairly.” State v. Wade, 186

Wn. App. 749, 773, 346 P.3d 838 (2015); State v. Christian, __ Wn. App. 2d __,

489 P.3d 657, 666 (2021). When a mistrial motion is based on improper testimony

from a witness, the trial judge is the best situated to assess the statement’s

prejudice. State v. Lewis, 130 Wn.2d 700, 707, 927 P2d 235 (1996). Accordingly,

we will overturn a trial court’s denial of a mistrial motion only when there is a

substantial likelihood that the error prompting the request for a mistrial affected the

jury’s verdict. Rodriguez, 146 Wn.2d at 269-70.

Moehrle argues Officer Collins’s violation of the trial court’s pretrial order

constitutes a trial irregularity warranting a new trial. A trial irregularity may be

grounds for a mistrial “when it is so prejudicial that it deprives the defendant of a

fair trial.” Christian, 489 P.3d at 666. “Courts look to three factors to determine

whether a trial irregularity warrants a new trial: (1) the seriousness of the

irregularity; (2) whether the statement was cumulative of evidence properly

admitted; and (3) whether the irregularity could be cured by an instruction.” State

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v. Perez-Valdez, 172 Wn.2d 808, 818, 265 P.3d 853 (2011) (internal quotations

omitted).

Seriousness of Irregularity

When reviewing the seriousness of an improper witness statement, we must

consider “who was responsible for the errant testimony; whether it was the result

of a witness who misunderstood or disregarded instructions or whether the witness

was misinformed or uninformed as the result of the actions, or inaction, of one of

the attorneys.” State v. Taylor, __ Wn. App. 2d __, 490 P.3d 263, 271 (2021).

While the intentional introduction of inadmissible evidence by a professional

witness is a serious irregularity, State v. Gamble, 168 Wn.2d 161, 178, 225 P.3d

973 (2010), there is no evidence that Officer Collins’s statement was anything

other than inadvertent. The State had no intention of eliciting this information, and

informed its witnesses not to mention the fact that the firearm was stolen. Officer

Collins made a single reference to arresting Moehrle for possessing a stolen

firearm and, after the court issued its curative instruction, there was no further

testimony about how Moehrle obtained it. Any violation was therefore fleeting and

unintentional. These facts weigh against mistrial.

Cumulative Nature of Inadmissible Evidence

As to the second factor, Officer Collins’s statement was not cumulative of

other properly admitted evidence. The jury did not hear any other evidence

suggesting that the firearm on Moehrle’s hip was stolen. As Officer Collins’s

statement was the sole reference to such in the record, this factor weighs in

Moehrle’s favor.

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Adequacy of Curative Instruction

As to the final factor, the trial court’s ruling sustaining the defense objection,

striking the testimony, and instructing the jury to disregard it adequately cured any

prejudice. Moehrle argues the court’s curative instruction was inadequate because

it failed to instruct the jury to disregard Officer Collins’s reference to the stolen

firearm. He bases this argument on the fact that the trial court, after striking the

answer, further instructed the jury to disregard “the last part” of Officer Collins’s

answer. Moehrle maintains that the jury would have assumed the court referred

to Officer Collins’s second, unfinished comment, not to the first comment about a

stolen firearm.

We question whether Moehrle preserved this particular argument for

appeal. When he moved for a mistrial, Moehrle did not argue that the court’s

instruction was inadequate to cover the reference to a stolen firearm. He argued

instead that no curative instruction would be adequate to ameliorate the prejudice.

Moehrle argued “I know the Court told [the jury] to disregard it, but I don’t know

that given the nature of that comment, and just how prejudicial it could be, that an

instruction to disregard it will cure the prejudice.” Defense counsel expressly

chose not to ask the court for any additional curative instruction to avoid drawing

the jury’s attention to the comments. Had Moehrle raised the sufficiency of the

instruction given, or requested an additional curative instruction, the trial court

could have made it clear to the jury that it struck Officer Collins’s answer in its

entirety.

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Moreover, the State, defense counsel, and the trial court all expressed their

understanding that the curative instruction referred to the objectionable statement

about the stolen firearm. And when reading the court’s curative instruction in

context, we conclude a reasonable jury would have reached the same

understanding. If during trial, Moehrle understood the court instructed the jury to

disregard the entirety of Officer Collins’s statement, it is likely that the jury

understood the instruction the same way. The trial court immediately struck the

answer, in its entirety. It then gave a curative instruction and did so in a way that

did not unduly emphasize the testimony. The court instructed the jury that it could

not discuss any evidence the court ruled was inadmissible or that it asked the jury

to disregard. These instructions ensured the jury would not consider the evidence

for an improper purpose because “the jury is presumed to follow instructions from

the court.” State v. Sanjurjo-Bloom, 16 Wn. App. 2d 120, 128, 479 P.3d 1195

(2021).

Finally, if the jury believed the instruction was inadequate to exclude the

testimony about Moehrle being arrested for possessing a stolen firearm, then there

was, at most, an erroneous admission of ER 404(b) evidence, a ruling subject to

the non-constitutional harmless error standard. See State v. Brown, 113 Wn.2d

520, 554, 782 P.2d 1013 (1989) (non-constitutional harmless error standard

applies to ER 404(b) rulings). This requires us to decide whether “within

reasonable probabilities, had the error not occurred, the outcome of the trial would

have been materially affected.” State v. Gunderson, 181 Wn.2d 916, 926, 337

P.3d 1090 (2014).

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We conclude that any error in admitting testimony that Moehrle was

arrested for possessing a stolen firearm was harmless. To convict Moehrle of

unlawful possession of a firearm in the first degree, the State had to prove beyond

reasonable doubt that (1) he knowingly had a firearm in his control; (2) he had

previously been convicted of a serious offense; and (3) the possession occurred

in Washington State. The only disputed element in this case was whether Moehrle

knew he had a gun in his possession on the day of his arrest.

There was overwhelming evidence that Moehrle knowingly possessed the

firearm. A person “knows or acts knowingly” when he is aware of a fact,

circumstance or result. Here, the police found the firearm in a holster on Moehrle’s

hip, looped through his belt. To remove the holster, police officers had to unbuckle

and remove Moehrle’s belt from his waistband. The location of the gun in a holster

attached to Moehrle’s belt is strong evidence that he knew it was there. Moreover,

the gun was fully loaded with a bullet in the chamber. A fully loaded firearm with

a bullet in the chamber suggests preparation or readiness to use the weapon, an

act inconsistent with the unknowing possession of that weapon.

Moreover, Moehrle had an extra, fully loaded magazine for the gun in a

nearby shopping bag. Moehrle identified the shopping bag as his when he asked

the officers to carry it out of the building with him. The fact that Moehrle was

carrying extra ammunition for the pistol is compelling evidence that he knew he

possessed the firearm.

Although there was evidence that Moehrle was intoxicated, there was also

evidence that his impairment did not prevent him from knowing he had a gun on

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his hip. He was able to freely converse with police officers. He understood their

questions and the officers understood his responses. The officers’ body cameras

captured their interaction with Moehrle, and the jurors were able to assess for

themselves the extent of Moehrle’s impairment. Mulcahy, the clinical psychologist

who found Moehrle, rejected the suggestion that his intoxication would have

prevented him from knowing what he was doing. Mulcahy testified that

“[g]enerally, substances might affect your decision-making. You might be more

impulsive and things like that, but I don’t think you can argue that they’re not aware

of what they’re doing.”

The court instructed the jurors that a state of voluntary intoxication “may be

considered in determining whether the defendant acted with knowledge.” Yet, they

found Moehrle guilty, indicating the jurors rejected his contention that his state of

intoxication rendered him incapable of knowing he possessed a firearm.

In light of this overwhelming evidence of Moehrle’s guilt, any testimony that

the gun Moehrle possessed was stolen was harmless error. This factor weighs

against a mistrial.

Based on the record before us, we cannot conclude that there is a

substantial likelihood that Officer Collins’s fleeting and unintentional reference to

the stolen gun affected the jury’s verdict. Nor can we conclude the curative

instruction was ineffective and necessitated a new trial. The trial court did not

abuse its discretion in denying Moehrle’s motion for a mistrial, and we therefore

affirm his conviction.

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B. Resentencing under Blake

Moehrle has requested resentencing in light of State v. Blake. We accept

the State’s concession that remand for resentencing is appropriate. “A prior

conviction based on a constitutionally invalid statute may not be considered when

calculating an offender score.” State v. Markovich, No. 81423-1-I, slip op. at 15

(Wn. Ct. App. Aug. 2, 2021), http://www.courts.wa.gov/opinions/pdf/814231.pdf.

In Blake, the Washington Supreme court held that RCW 69.50.4013(1), the statute

criminalizing simple possession, is unconstitutional. 197 Wn.2d at 186. Because

RCW 69.50.4013(1) is void, Moehrle’s prior conviction for simple possession is

unconstitutional on its face, and cannot be included in Moehrle’s offender score.

Accordingly, we remand for resentencing.

We affirm Moehrle’s conviction but remand for resentencing.

WE CONCUR:

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