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IN THE COURT OF APPEALS OF THE STATOWVANGTON STATE OF VNIAS@ INGTON DIVISION II BY p STATE OF WASHINGTON, No. 422858-I I consolidated with Respondent, No.42284 1 II - -
V.
SCOTT EUGENE COLLINS, UNPUBLISHED OPINION
Penoyar, J. — In a consolidated appeal, Scott Collins challenges his convictions for
possession of a stolen vehicle, making a false statement to a public servant, and unlawful
possession of a controlled substance (methamphetamine). He argues that (1) was unlawfully he
seized; 2) evidence is insufficient to prove that he made a false statement to a public servant ( the
and that he possessed methamphetamine; (3)the trial court admitted propensity evidence in
violation of ER 404( ); counsel was ineffective for failing to challenge his initial detention; b 4) (
5) trial court erred when it refused to give his knowing possession jury instruction; and (6) the
the trial court erred by excluding his exculpatory statements.We hold that ( )Collins waived his 1 argument that he was seized at the outset of his encounter with the deputies; (2)there is sufficient evidence that Collins made a false statement and possessed the methamphetamine; 3) (
the trial court properly applied ER 404( ); ( s failure to argue that Collins was b 4)counsel'
unlawfully seized was not prejudicial; 5) trial court did not err by refusing to give Collins's ( the
instruction because knowledge is not an element of unlawful possession of a controlled
substance; and (6)although the trial court erred in its analysis of the admissibility of the
exculpatory statements, this was harmless error. We affirm. 42280 8 II /42284 1 II - - - -
FACTS
I. POSSESSION OF A STOLEN VEHICLE; MAKING A FALSE STATEMENT TO A PUBLIC SERVANT
On June 27, 2010, Jethro Welter heard a crash and saw a blue truck wrecked in his front
yard. Welter saw Collins exiting the driver's side of the truck. He asked Collins what happened,
and Collins said a dog ran out in front of the truck. Welter went into his home and called 911 to
report the accident.
Welter's neighbor, Marie Brenner, heard the crash and went to investigate. She saw her
neighbor, Frank Cano, talking to another man. As she approached, the other man took off
running.
Deputy Robert Stumph and Deputy Cory Robinson arrived on the scene about 10 minutes after Welter's 911 call. They saw a blue truck crashed against a tree and Brenner and 'Cano
standing across the street. They approached Brenner and Cano, and Brenner told the deputies that a man had run toward the woods behind Cano's house as the police approached. The
deputies searched the backyard for the man, and were about to enter Cano's house, when they saw Collins descending Cano's stairs.
Robinson told Collins that he was there to investigate the accident and asked Collins if he
knew what happened. Collins said that Chad Campbell was driving the truck and that he was
asleep in the passenger seat. Collins was unable to provide a phone number or address for
Campbell but said that he may have been at Allan's house. Collins did not have any contact
information for Allan, and he provided only a vague description of where Allan's house was
located.
While Robinson was speaking with Collins, Stumph went to interview other witnesses.
Before he left, Stumph overheard Collins telling Robinson that he was a passenger and that his 2 42280 8 II /42284 1 II - - - -
friend was driving. Stumph then interviewed Welter, who stated that Collins was the driver.
Stumph also learned from dispatch that Collins's license had expired. Stumph then placed
Collins under arrest.
After Stumph arrested Collins, Robinson read him his Miranda' rights. Collins then told Robinson that he was the driver and only occupant of the truck and that he "made up Chad."
Report of Proceedings ( RP) Apr. 19, 2011) at ( 27. Before placing Collins in the patrol car,
Robinson searched him incident to arrest and found an ignition switch and several keys.
After he placed Collins under arrest, Stumph went to look at the truck. He noticed that
the steering column was torn apart and the ignition was lying on the floorboard. The back
window of the truck was broken and the cab contained pieces of glass. Stumph contacted
dispatch to determine who owned the truck. The truck belonged to Gweneth McDonald, who stated that she did not give Collins permission to drive it and that the steering column, ignition,
and back window were in good condition when she last saw it.
Robinson questioned Collins about the truck and Collins replied that he borrowed it from someone named Bruce. Collins did not know Bruce's last name or how to contact him.
The deputies also discovered a plastic bag lying next to Cano's back door. Collins said
the bag was his. The bag contained Collins's personal effects, paperwork relating to the blue
truck, and a key ring containing multiple models of car keys.
The State charged Collins with possession of a stolen vehicle, obstructing a law
enforcement officer, and making a false or misleading statement to a public servant. After a CrR court admitted both Collins's pre- and Miranda post - statements. It 3. 5 hearing, the trial
concluded that Collins.was not in custody when he made the pre -Miranda statements because he
Miranda v.Arizona, 384 U. .436, 86 S. Ct. 1602,16 L.Ed.. 694 (1966). S 2d 3 42280 8 II /42284 1 II - - - -
was not cuffed, the questions were intended to gather information about the accident and not to
elicit incriminating information, and the contact was for a short duration. The trial court
concluded that the post -Miranda statements were admissible because Robinson read Collins his
rights, there was no coercion, and Collins understood his rights and the consequences of waiving
them, as evidenced by his later invocation of his right to an attorney.
Collins also requested a CrR 3. hearing to suppress the ignition switch and keys 6
Robinson found during his search incident to arrest. At the hearing, Stumph testified that he
arrested Collins for driving a vehicle without a license.. Because the State apparently conceded
that Stumph lacked probable cause to arrest Collins for that crime, Collins argued that the arrest and the resulting search were unlawful. The State argued that Stumph had probable cause to
arrest Collins for making a false statement to a public servant. The trial court agreed that there
was probable cause to arrest .Collins for making a false statement and denied his suppression motion.
Collins made a motion in limine to prohibit testimony that he possessed a key ring with
multiple types of keys on it. He argued that the evidence should be suppressed under ER 403 and 404. The trial court ruled that the evidence was admissible to show that Collins knew the
truck was stolen.
The trial court, on the State's motion, dismissed Collins's obstruction charge. The jury
found Collins guilty of making a false statement to a public servant and possession of a stolen vehicle. The trial court sentenced him to 18 months' confinement for possession of a stolen
vehicle and 365 days' confinement for making a false statement. Collins appeals.
2 Presumably because it did not occur in the deputies' presence. 4 42280 8 II /42284 141 - - -
II. METHAMPHETAMINE POSSESSION
On September 15, 2010, Trooper Todd Surdam stopped Collins for failing to wear a seat
belt. Surdam asked Collins for identification and Collins reached into his pocket and withdrew a
folded piece of paper. Collins unfolded the paper, and a "chunk of white crystal substance" fell out of it and onto Collins's lap. RP ( Apr. 19, 2011) at 60. Based on his training, Surdam
recognized the substance as methamphetamine. Surdam asked Collins to get out of the vehicle.
After Collins left the vehicle, Surdam saw the substance on the doorjamb of the vehicle. Surdam
arrested Collins and read him his Miranda rights. Collins admitted that the substance was
methamphetamine and that " e knew it was there."RP (Apr. 19, 2011) at 64. Collins also said h
that "[ e wanted to talk to someone about where the other people were," " he meth was not h] that t
his," that he "was taking [the vehicle] for a test drive." (Apr. 19, 2011) at 10. Surdam and RP
retrieved the methamphetamine from the vehicle and sent it to the state crime lab for evaluation.
The crime lab determined that the substance was methamphetamine. The State charged Collins
with unlawful possession of a controlled substance ( methamphetamine).
At trial, the State filed a motion in limine to exclude as hearsay Collins's statements that
h] wanted to talk to someone about where the other people were"and " he meth was not his." e t
RP (Apr. 19, 2011)at 10. The trial court granted the State's motion and excluded the statements
as hearsay, concluding that they did not meet the requirements for the admission by a party
opponent exception. The trial court also concluded, after "weigh[ ng]the dis- i serving and the
self - serving aspects of [he statements,]" they were not admissible under ER 106, the rule of t that
completeness. RP (Apr. 19, 2011)at 15.
3 These two cases were sentenced together and consolidated on appeal.
4 At trial,the parties stipulated that the paper identified Collins. 5 42280 8 II /42284 1 I1 - - - -
Collins proposed the following jury instruction: It is a crime. or a person to knowingly " f
possess a controlled substance." RP ( Apr. 19, 2011) at 83. The trial court rejected this
instruction, stating that knowledge is not an element of unlawful possession under Washington
law. The jury found Collins guilty of unlawful possession, and the trial court sentenced him to
18 months' confinement..Collins appeals.
ANALYSIS
I. POSSESSION OF A STOLEN VEHICLE; MAKING A FALSE STATEMENT TO A PUBLIC SERVANT
A. Seizure
Collins first argues that he was unlawfully seized from the outset of his encounter with
Robinson and Stumph and that all subsequently obtained evidence should be suppressed. The State argues that Collins waived this issue because he never argued at the trial court that he was
unlawfully seized prior to his arrest. Rather, he argued only that he was in custody for purposes
of Miranda warnings, which involves a different inquiry than whether he was unlawfully seized.
We agree with the State that Collins failed to assert this argument at the trial court and hold that
it is therefore waived on appeal because it was not a manifest constitutional error.
Generally, a defendant cannot raise an error for the first time on appeal unless it is a
manifest error affecting a constitutional right."RAP 2. ( a)(State v. McFarland, 127 Wn. d 3); 5 2
322, 333, 899 P. d 1251 (1995).The defendant must identify a constitutional error and show 2 "
how, in the context of the trial,the alleged error actually affected the defendant's rights; it is this
5 Collins also argues that the record does not support two of the trial court's findings: Robinson " testified that Collins was not seized"and "witnesses [said]they saw Collins in the crashed car." Appellant's Br.at 10. He argues that the trial court relied on these findings in concluding that Robinson's initial detention of Collins was lawful. Collins fails to provide citations to the record for these findings. Accordingly, we decline to review his argument. RAP 10. ( a)(6); ( 5), 3 Cowiche Canyon Conservancy v. Bosley, 118 Wn. d 801, 809, 828 P. d 549 (1992). 2 2 6 42280 8 II /42284 1 II - - - -
showing of actual prejudice that makes the error ` manifest', allowing appellate review."
McFarland, 127 Wn. d at 333. This requires the defendant to show that the trial court would 2
have granted the suppression motion if made. McFarland, 127 Wn. d at 334. 2 In likely
McFarland, the court determined that the record lacked a factual basis for determining the merits
of the claim. 127 Wn. d at 334 n. . However, in this case, the facts elicited in the CrR 3. 2 2 5
hearing allow us to determine whether the trial court would likely have granted the suppression
motion. See State v. Contreras, 92 Wn. App. 307, 314, 966 P. d 915 (1998)despite the absence 2 (
of a motion to suppress and a ruling,the record was sufficiently developed for the appellate court to determine whether a motion to suppress would have been granted).
Here, the record does not show actual prejudice. The evidence does not show that Collins
was seized prior to his arrest; thus, any motion to suppress would have been denied. Robinson
contacted Collins as he emerged from Cano's house and asked him a series of questions. At no
time did he order Collins to stop or restrain him in any way.
A seizure occurs when, due to an officer's use of physical force or authority, an
individual's freedom of movement is restrained and the individual would not believe [that] he . .
is free to leave or decline a request." State v. Harrington, 167 Wn. d 656, 663, 222 P. d 92 2 3
2009) quoting ( State v. Rankin, 151 Wn. d 2 689, 695, 92 P. d 3 This 202 (2004)). is a purely
objective inquiry. State v. Young, 135 Wn. d 498, 501, 957 P. d 681 (1998). 2 2 Circumstances that are likely to result in a seizure include "the threatening presence of
several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's
request might be compelled." Young, 135 Wri.2d at 512 (quoting United States v. Mendenhall, 446 U. . 544, 554, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980)). S Additionally, a seizure occurs 7 42280 8 II 7 42284 1 II - - - -
when an officer commands a person to stop or demands information from him, but no seizure
occurs when an officer merely approaches an individual in public and requests to talk to him.
State v. O' eill, 148 Wn. d 564, 577 78,62 P. d 489 ( 003). N 2 - 3 2
Collins's argument that he was seized is based on Robinson's testimony at the CrR 3. 5
hearing. When asked if Collins was free to leave, Robinson replied, I' tryin' to figure out if " m
he was the driver of the car, or not." (Apr. 14, 2011) at 33. The prosecutor then said, You RP "
didn't cuff him and he wasn't arrested; .. . right ?" RP (Apr. 14, 2011) at 33. To which.
Robinson replied, No." ( Apr. 14, 2011) at " RP 33. On cross -examination, defense counsel
asked Robinson again if Collins was free to leave, and, this time, Robinson said, No." (Apr. " RP
14, 2011)at 37.
Robinson contacted Collins as he emerged from Cano's house and asked him a series of
questions. This contact lasted only a "few minutes."RP (Apr. 14, 2011) at 37. Robinson did not cuff, arrest, or otherwise restrain Collins until later. He did not command Collins to stop or
demand information from him. While there were two officers at the scene, Stumph was only
present for a short time before he left to interview other witnesses. Robinson's statement on
cross -examination that Collins was not free to leave tells us only what was in his mind. What
matters here is not what the officer thought but what,he did. Robinson's actions, viewed
objectively, would not lead someone in Collins's position to believe that he was not free to leave. Therefore, the trial court would not have granted Collins's suppression motion and he cannot
show manifest constitutional error.
6 Collins further argues that his counsel was ineffective for not challenging his initial interaction with Robinson as an unlawful seizure. As discussed above, the result of the trial would not have differed if counsel had challenged the alleged seizure. Collins's argument fails. 8 42280 8 II /42284 1 II - - - -
B. Warrantless Arrest
Collins next argues that the trial court erroneously concluded that there was probable
cause to arrest him. He argues that, because the stated crime of arrest was driving without a
license and the State conceded that Stumph lacked probable cause for that offense, the arrest was
unlawful and all evidence resulting from his arrest should be suppressed. But Stumph only
needed probable cause to arrest for an offense, not necessarily the offense he stated, and there
was probable cause to arrest Collins for making a false or misleading statement.
We review conclusions of law from a suppression hearing de novo. State v. Gaines, 154
Wn. d 711, 716, 116 P. d 993 (2005).The validity of an arrest depends on objective facts and 2 3
circumstances. State v. Huff, 64 Wn. App. 641, 645, 826 P. d 698 ( 1992). "[ n arrest 2 A]
supported by probable cause is not made unlawful by an officer's subjective reliance on, or
verbal announcement of, an offense different from the one for which probable cause exists."
Huff, 64 Wn. App. at 646. Probable cause for an arrest exists where the officer knows of
circumstances that would lead a reasonably cautious person to believe that the suspect. has
committed a crime. State v. Terranova, 105 Wn.2d 632, 643, 16 P. (1986). 7 295 Under RCW 9A. 6. 175, 7
a] person who knowingly makes a false or misleading material statement to a public servant is guilty of a gross misdemeanor. " aterial statement" means a M written or oral statement reasonably likely to be relied upon by a public servant in the discharge of his or her official powers or duties.
An officer may make a warrantless arrest for a misdemeanor if the offense was committed in the
presence of the officer. RCW 10. 1. 100. 3 42280 8 II /42284 1 II - - - -
Searches incident to lawful arrest are a recognized exception to the warrant requirement.
State v. Johnson, 128 Wn. d 431, 447, 909 P. d 293 (1996).A lawful custodial arrest supported 2 2
by probable cause is a prerequisite to a search incident to arrest. State v. Moore, 161 Wn. d 880, 2
885, 169 P. d 469 (2007). 3
Stumph had probable cause to arrest Collins for making a false statement to a public
servant. Stumph was present when Collins told Robinson that Chad Campbell was driving the
truck. A few minutes later, Stumph spoke with Welter and learned that Collins was in fact the
driver. After obtaining this information, Stumph placed Collins under arrest. At that point, there
was probable cause to arrest Collins for making a false statement. Because Stumph was present when Collins made the false statement, the warrantless arrest was lawful under RCW 10. 1. 100. 3
Since the underlying arrest was lawful, the trial court did not err by admitting the evidence
obtained from the search incident to arrest.
C. Sufficiency
Collins next argues that there is insufficient evidence to support his conviction for
making a false statement because the State failed to prove that "ying to Robinson was a crime" l
or that Robinson relied.on Collins's statements. Appellant's Br. at 22. Lying to an officer is a
crime under RCW 9A. 6.and the State provided sufficient evidence for the jury to infer that 175 7
Robinson was reasonably likely to rely on Collins's statements; thus, Collins's insufficient
evidence argument fails.
Evidence is legally sufficient to support a guilty verdict if any rational trier of fact,
viewing the evidence in .the light most favorable to the State, could find the elements of the
charged crime beyond a reasonable doubt. State v. Longshore, 141 Wn. d 414, 420 21, 5 P. d 2 - 3 1256 (2000). We interpret all reasonable inferences in the State's favor. State v. Hosier, 157 10 42280 8 II /42284 1 II - - - -
Wn. d 1, 8, 133 P. d 936 (2006). Direct and circumstantial evidence carry the same weight. 2 3
State v. Varga, 151 Wn. d 179, 201, 86 P. d 139 (2004).Credibility determinations are for the 2 3
trier of fact and are not subject to review. State v. Cantu, 156 Wn. d 819, 831, 132 P. d 725 2 3
2006).
A person is guilty of a misdemeanor if he knowingly makes a false or misleading material statement to a public servant. RCW 9A. 6. A statement is material if it is 175. 7
reasonably likely to be relied upon by a public servant in the discharge of his or her official powers or duties."RCW 9A. 6. The State does not have to prove that the officer actually 175. 7 relied on the statements. State v. Godsey, 131 Wn. App. 278, 291, 127 P. d 11 (2006). 3
Lying to a police officer is a crime. RCW 9A. 6. Collins argues that,. 175. 7 since he did
not have an obligation to talk to Robinson, he likewise did not have an obligation to be truthful. Collins is correct that he did not have an obligation to speak to Robinson. See O' eill, 148 N
Wn. d at 579. However, once he chose to speak to Robinson, he had an obligation to be truthful 2
or risk prosecution for making a false statement to a public servant.
Additionally, there is sufficient evidence that Robinson was reasonably likely to rely on
Collins's statements. When Robinson approached Collins, he did not know who the driver was
or how the accident had occurred. After Collins told Robinson that Campbell was driving,
Robinson recorded this information in his notes and attempted to learn more about Campbell and
where he could be located. Given these facts, the jury could infer that Collins knew it was
reasonably likely that Robinson would rely on these statements for his investigation. D. ER 404( ) b
Collins further argues that the trial court erred when it denied his motion to exclude the
key ring under ER b Specifically, he 404( ). argues that the trial court failed to conduct its ER 11 42280 8 II /42284 1 II - - - -
404( ) b analysis on the record and failed to establish that the evidence was relevant to prove an
element of the crime charged. Because the trial court conducted its analysis on the record and
established that the key ring was relevant to whether Collins knew the vehicle was stolen; we
affirm.
We review a trial court's decision to admit evidence under ER 404( ) determine b to
whether the decision was manifestly unreasonable or based on untenable grounds or reasons.
State v. DeVincentis, 150 Wn. d 11, 17, 74 P. d 119 (2003); 2 3 State v. Rohrich, 149 Wn. d 647, 2
654, 71 P. d 638 (2003).Evidence of other crimes, wrongs, or acts is inadmissible to prove that 3
the defendant has a criminal propensity. ER 404( ). b However, such evidence may be admissible
to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake. ER 404( ). b
Before admitting the evidence, the trial court must (1)find by a preponderance of
evidence that the action occurred, 2) ( identify the purpose for which the evidence is sought to be
introduced, ( )determine whether the evidence is relevant to prove an element of the crime 3
charged, and (4)weigh the probative value against the prejudicial effect. State v. Vy Thang, 145 Wn. d 630, 642, 41 P. d 1159 (2002). This 2 3 analysis must be conducted on the record. State v.
Foxhoven, 161 Wn. d 168, 175, 163 P. d 786 (2007). 2 3
Here, the trial court did conduct its analysis on the record:
The State's position is that [the key ring] goes to show knowledge that the vehicle was stolen.
I think hereI think the evidence is relevant. It has a tendency to prove a — fact that's at issue, more or less likelyso,I think it' relevant. Then, I guess, the — s question is does itis it propensity evidence, or is it [sic] the danger of unfair — prejudice, is it outweighed by the probative value of it. 12 42280 8 II /42284 1 II - - - -
I don't think the . . .danger of unfair prejudice here outweighs the probative value; so and I don't think it' propensity evidence, I think that's — s allowable under ... 403 and also 404.
RP (Apr. 14, 2011) at 56. As for the first prong, it was uncontested that the key ring was found
in Collins's possession. The trial court considered the other three prongs in the analysis quoted
above. It identified the purpose for admitting the evidence: to show knowledge that the vehicle
was stolen; it determined that the evidence was relevant: the State must prove that Collins knew
the vehicle was stolen; and it weighed the probative value of the evidence against its prejudicial
effect.
Further, the trial court established that the evidence was relevant to prove an element of
the crime charged. Collins was charged with possession of a stolen vehicle under RCW
068( 9A. 6.This requires the State to prove that Collins knew the vehicle was. stolen. RCW 1 5 ).
9A. 6. Robinson testified that it is common to find large numbers of keys on people 140( 1). 5
caught stealing vehicles because they use the keys to access the vehicle without forcing entry.
Immediately before concluding that the evidence was relevant, the trial court restated the State's
argument that it was relevant to show knowledge that the vehicle was stolen. Thus, the trial
court considered the reasons for admitting the evidence immediately before ruling that it was
relevant. The trial court did not err.by admitting the key ring.
A. Sufficiency
Collins first argues that the evidence is insufficient to prove he possessed the
methamphetamine found on the doorjamb. Because it is reasonable to infer that the
13 42280 8 II /42284 1 II - - - -
methamphetamine from his pocket fell to the doorjamb when he left the vehicle, this argument is
not persuasive.
It is unlawful for any person to possess a controlled substance." Former RCW
4013( 69. 0. 1 2003). Possession may be actual or constructive. State v. Staley, 123 Wn. d 5 ) ( 2
794, 798, 872 P. d 502 ( 1994). 2 Here, the trial court only instructed the jury on actual
possession. A defendant has actual possession if the substance is in his personal custody. Staley, 123 Wn. d at 798. 2
Collins attempts to argue that there were two crystalline substances: one that fell from the
folded paper onto his lap and one that was lying on the doorjamb. Collins contends that there is
no evidence that he "ever touched"the substance found on the doorjamb. Appellant's Br. at 35.
His arguments are not persuasive. Interpreting all reasonable inferences in the State's favor,
there is sufficient evidence to prove that Collins actually possessed the methamphetamine that
was on the doorjamb. Surdam saw the crystalline substance fall from the folded paper onto
Collins's lap. Collins does not attempt to argue that there is insufficient evidence that he actually -
possessed this substance. Surdam then found a substance, later identified as methamphetamine,
on the doorjamb next to Collins's seat immediately after Collins left the vehicle. It is reasonable
to infer that the substance from the paper fell from Collins's lap and onto the doorjamb when he
left the vehicle. There is sufficient evidence that there was only one crystalline substance and
that Collins had personal custody of it.
7" Instruction No. 8: Possession' means having a substance in one's custody. Possession occurs ` when the item is in the actual physical custody of the person charged with possession."RP (Apr. 19, 2011)at 101 - 2. 0 14 42280 8 II /42284 1 II - - - -
B. Jury Instruction
Collins next argues that the State was relieved of its burden to prove the essential
elements of unlawful possession because the trial court rejected his jury instruction requiring
knowing possession. Because knowledge is not an element of unlawful possession, the trial
court did not err.
When a trial court's decision whether or not to give a proposed jury instruction is based
on law, we review that decision de novo. State v. Lucky, 128 Wn. d 727, 731, 912 P. d 483 2 2
1996), overruled on other grounds by State v. Berlin, 133 Wn. d 541, 947 P. d 700 (1997). 2 2
Washington courts have repeatedly held that knowledge is not an element of unlawful
possession. See State v. Bradshaw, 152 Wn. d 528, 98 P. d 1190 (2004). 2 3
In State v. Cleppe, the Supreme Court held that knowledge is not a required element of
unlawful possession. 96 Wn. d 373, 378, 635 P. d 435 (1981).The court reasoned that, since 2 2
the legislature removed the mens rea requirement from a previous version of the bill, it intended
to omit knowledge as an element of unlawful possession. Cleppe, 96 Wn. d at 380. The court 2
further stated that the unwitting possession defense "ameliorates the harshness" of the unlawful
possession statute by allowing the defendant to prove he had no knowledge of his possession.
Cleppe, 96 Wn. d at 380 81. More than twenty years later, in Bradshaw, the Supreme Court 2 -
specifically declined to overrule Cleppe..152 Wn. d at 539. The court noted that the legislature 2
had amended RCW 69. 0.seven times since Cleppe and had not added a mens rea element to 401 5
the unlawful possession statute. Bradshaw, 152 Wn. d at 533. Given this clear legal precedent, 2 the trial court did not err when it rejected Collins's proposed knowledge instruction.
15 42280 8 II /42284 1 II - - - -
C. Exculpatory Statements
Finally, Collins argues that the trial court violated the rule of completeness and denied
him a complete,defense when it excluded his exculpatory statements to Surdam. He argues that 1) statements were not hearsay, 2) State opened the door to the statements, and (3) the ( the the
trial court misapplied the rule of completeness. Because (1) trial court properly concluded the
that the statements were hearsay, 2) statements were not relevant to an issue at trial, and (3) ( the
the trial court's misapplication of ER 106 was harmless error, we disagree.
We review a trial court's admission of evidence to determine if the decision is
manifestly unreasonable or based on untenable grounds or reasons. State v. Bourgeois, 133
Wn. d 389, 399, 945 P. d 1120 (1997); 2 2 Rohrich, 149 Wn. d at 654. 2
Collins first contends that his statements were not hearsay. Because his statements do not
qualify as admissions by a party opponent and because he failed to argue the mental state
exception at the trial court, we disagree.
An admission by a party opponent is not hearsay. ER 801( 2). a party's However, d)(
self-serving statements do not fall within this hearsay exception. State v. Pavlik, 165 Wn. App. 645, 653 54, 268 P. d 986 (2011).A party cannot change theories of admissibility on appeal. - 3
Pavlik, 165 Wn. App. at 651.
Here, Collins's statements that others were involved and that the methamphetamine was
not his were hearsay. The trial court correctly concluded that the statements were self - serving
and did not qualify as admissions by a party opponent. On appeal, Collins argues that his
statements were not hearsay because they fall within the existing mental state exception. At trial,
Collins argued only that the statements were admissible under ER 106, the rule of completeness.
16 42280 8 II /42284 1 II - - - -
He cannot now assert that his statements were admissible under a hearsay exception not argued
at the trial court.
Next, Collins argues that the State opened the door to his statements. Because Collins's
statements regarding ownership of the methamphetamine were not relevant to an issue at trial,
his statements were not admissible under the open door doctrine.
O]ce a party has raised a material issue,. opposing party is permitted to explain, n the
clarify, or contradict the evidence."State v. Berg, 147 Wn. App. 923, 939, 198 P. d 529 (2008), 3
abrogated on other grounds by State v. Mutch, 171 Wn. d 646, 254 P. d 803 ( 2011). This 2 3
means that otherwise inadmissible evidence may be admissible if a party first " pens the door" o
and the inadmissible evidence is relevant to an issue at trial. State v. Stockton, 91 Wn. App. 35,
40, 955 P. d 805 (1998). 2
Here, even if the State had opened the door, Collins's statements about ownership of the
methamphetamine were not relevant to an issue at trial. Collins did not assert an unwitting
possession defense. Therefore, as long as the State proved that Collins possessed the
methamphetamine, which it did, it is irrelevant whether Collins "owned"the methamphetamine.
Collins also argues that the trial court misapplied the rule of completeness, ER 106.
Although the trial court did not perform the correct analysis under ER 106, this was harmless error.
Under ER 106, when part of a statement is admitted, an adverse party may require the "
party at that time to introduce any other part . .. which ought in fairness to be considered
contemporaneously with it." However, the redacted parts are admissible only if they are relevant
to an issue in the case and then only if they are needed to clarify or explain the admitted
17 42280 8 II /42284 1 II - - - -
statements. State v. Larry, 108 Wn. App. 894, 910, 34 P. d 241 (200 1)quoting United States v. 3 (
Haddad, 10 F.d 1252, 1258 59 ( th Cir. 1993)). 3 - 7
Here, the trial court did not engage in the correct analysis under ER 106. The trial court
determined that the statements were hearsay and then proceeded to balance the "self- serving
aspects and the dis- serving aspects of the statement[s]." 2011) at 13 14: This is not RP (Apr. 19, -
the test; rather, the trial court considers whether the statements are relevant and then whether
they are necessary to clarify or explain the admitted statements.
However, the trial court's failure to apply the correct analysis is harmless error. Collins's
defense at trial was that he did not possess the methamphetamine. He argued that the State could
not connect the methamphetamine found on the doorjamb with the suspected methamphetamine
that fell from the folded paper. Thus, the trial court's exclusion of Collins's statements that the
methamphetamine found on the doorjamb belonged to someone else did not deprive him of his
constitutional right to present his defense, and the trial court's error in applying ER 106 was not
a constitutional error. See State v. Anderson, 112 Wn. App. 828, 837, 51 P. d 179 (2002). 3
Accordingly, the non -constitutional harmless error.tandard applies and the trial court's error is s
harmless unless it materially affected the outcome of the trial. Bourgeois, 133 Wn. d at 403. 2
If the trial court had performed the proper analysis under ER 106, the outcome would
have been the same. As discussed above, Collins's statements regarding ownership of the
methamphetamine were not relevant to an issue in the case because Collins did not assert an
unwitting possession defense. Therefore, the statements did not meet the first requirement for
admissibility under ER 106. Although the trial court did not use the proper analysis, this error
did not prejudice Collins.
18 42280 8 II /42284 1 II - - - -
We affirm.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
040, 2.6.it is so ordered. 0
We concur:
Van Deren, .
Worswick, C. . J