State v. Mercer-Drummer

116 P.3d 454, 128 Wash. App. 625
CourtCourt of Appeals of Washington
DecidedJuly 26, 2005
DocketNo. 31837-7-II
StatusPublished
Cited by6 cases

This text of 116 P.3d 454 (State v. Mercer-Drummer) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Mercer-Drummer, 116 P.3d 454, 128 Wash. App. 625 (Wash. Ct. App. 2005).

Opinions

¶1 Kimberly Mercer-Drummer appeals her convictions for third degree assault, obstructing a law enforcement officer, and resisting arrest, arising from an incident aboard a Pierce Transit bus. She argues that the trial court erroneously granted the State’s motion to exclude character evidence that she had no criminal history. Finding no abuse of trial court discretion, we affirm.

Hunt, J.

[627]*627FACTS

I. Transit Bus Incident

¶2 Kimberly Mercer-Drummer boarded a Pierce Transit bus with her two children, paid her fare, and grabbed a transfer from the bus driver’s hand.1 The bus driver “told her not to do that again, that the operator is supposed to give it to her.”2 Mercer-Drummer cursed at the bus driver and walked toward the back of the bus. The driver asked her “to stop cussing” and “to respect the other passengers on the bus.”3 After Mercer-Drummer continued to curse at him, the driver asked her to leave the bus. She refused, saying she had done nothing wrong and had paid her fare. Another passenger suggested to Mercer-Drummer that she get off the bus because “they’re going to call the cops and you’re going to get arrested.”4 But Mercer-Drummer remained on the bus.

¶3 The driver called the bus dispatch communication center and asked a supervisor to meet the bus at the Lakewood Transit Center. At the Lakewood Transit Center, Pierce Transit Supervisor James Joy boarded the bus and contacted Mercer-Drummer. Mercer-Drummer “became very argumentative, elevating the level of her voice and refusing to get off the bus.”5 When Joy threatened to call the police, Mercer-Drummer replied, “Go ahead.”6 Joy called for a police officer to respond. Mercer-Drummer stepped off the bus, walked down the sidewalk, and boarded another bus despite the second driver’s attempt to prevent her. By this point, Mercer-Drummer knew that the police had been called.

[628]*628f4 Joy followed Mercer-Drummer onto the bus, telling her that she had to exit this bus. Mercer-Drummer saw three marked police cars arrive and exited the second bus. Joy contacted Pierce County Sheriff’s Department Deputy Vickie Kimbriel, told her that a female passenger had refused to leave the bus, and pointed out Mercer-Drummer to Deputy Kimbriel.

¶5 Deputy Kimbriel, in uniform, attempted to stop and talk to Mercer-Drummer about what had happened. But Mercer-Drummer kept walking away, fully aware that Kimbriel was a police officer. Eventually, Mercer-Drummer stopped and told Deputy Kimbriel that nothing had happened, although she admitted to having told the bus driver to shut up.

¶6 When Mercer-Drummer began cursing and walked away, Deputy Kimbriel placed her hand on Mercer-Drummer’s shoulder and told her that she was not free to leave. Mercer-Drummer turned around, “cocked her hand back,” and hit Deputy Kimbriel on the side of her face, exclaiming, “Don’t touch me.”7 According to Mercer-Drummer, she thought Deputy Kimbriel “maybe [ ] was arresting [her] or something,” pulled her arms back trying to get away, and did not intend to strike Kimbriel.8 According to Kimbriel, Mercer-Drummer hit her with a closed fist and knocked her off balance.

¶7 According to witness Deputy Douglas Maier, Mercer-Drummer took “a wide swing with her left hand, striking Deputy Kimbriel in the right side of her face.”9 Maier stepped in, grabbed Mercer-Drummer, and “took her down to the ground to maintain control of her.”10 Mercer-Drummer was kicking, swinging her arms, and not responding to verbal commands. Ultimately, Deputy Kimbriel first [629]*629warned Mercer-Drummer and then applied a Taser to her neck to subdue her.

¶8 The State charged Mercer-Drummer by information with one count of third degree assault, one count of obstructing a law enforcement officer, and one count of resisting arrest.

II. Procedure

¶9 At trial, before the defense presented its case, the State moved to prevent Mercer-Drummer from testifying that she had no criminal history. Mercer-Drummer countered that this testimony was relevant to establish her character, and it was relevant to support her defense that she did not intend to strike Deputy Kimbriel.

f 10 The trial court ruled that Mercer-Drummer’s lack of a criminal history (1) did not tend to show her character or reputation for peacefulness within the meaning of ER 404(a), and (2) did not meet the criteria for admissible character evidence under ER 405. The trial court granted the State’s motion and excluded the evidence. The jury returned guilty verdicts on all three counts.

f 11 Mercer-Drummer appeals.

ANALYSIS

Character Evidence

¶12 Mercer-Drummer argues that the trial court committed reversible error when it excluded her proffered “character” evidence that she had no criminal history, specifically that she had no prior arrest record. We disagree.

A. Standard of Review

¶13 We review a trial court’s decision to admit or to exclude evidence for abuse of discretion.11 “An abuse of [630]*630discretion occurs when the trial court bases its decision on untenable grounds or exercises discretion in a manner that is manifestly unreasonable.”12

¶14 Mercer-Drummer offered her testimony that she had never been convicted of a crime to establish her good character and to support her defense that she did not intend to strike Deputy Kimbriel. Assuming, without deciding, that Mercer-Drummer’s proffered character evidence was admissible under ER 404(a), she failed to meet the requirements of ER 405, which sets forth acceptable methods of proving character.

B. ER 405

¶15 ER 405 provides for the following methods of proving character:

(a) Reputation. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation. On cross examination, inquiry is allowable into relevant specific instances of conduct.
(b) Specific Instances of Conduct. In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person’s conduct.[13]

¶16 Mercer-Drummer disputes the trial court’s ruling that her proffered character evidence was not in the form of reputation testimony and, therefore, not admissible under ER 405. She also urges us to adopt the dissent’s reasoning in State v. O’Neill,14 which, she contends, would allow her lack of criminal arrests into evidence here. In short, she asks us to hold that (1) under ER 405(b), being a “law abiding citizen” is an essential element of a defense in any [631]*631criminal trial; and (2) reputation testimony is one way, but not the exclusive way, to prove character under ER 405(a).15 We decline Mercer-Drummer’s invitation to adopt the O’Neill

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Bluebook (online)
116 P.3d 454, 128 Wash. App. 625, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mercer-drummer-washctapp-2005.