State v. Powell

¶1 —A jury convicted Jason Vincent Powell for the attempted burglary of his ex-girlfriend’s home. The Court of Appeals reversed the conviction based on the trial court’s admission of evidence under ER 404(b) that Powell ingested methamphetamine prior to the attempted burglary to show his mental state. At trial, however, defense counsel initially condoned the testimony and later objected only to question the witness’ credibility. We hold Powell failed to preserve his ER 404(b) objection for appeal and has *75failed to demonstrate any manifest constitutional error supporting reversal. We reverse the Court of Appeals and affirm Powell’s conviction.

I. FACTUAL AND PROCEDURAL HISTORY

¶2 Powell and Amber Williams had an intermittent relationship for three and one-half years and had a son together named Zion. Three months before the attempted burglary, Powell told Williams he would kill her if she tried to keep him away from Zion. Williams “tried to laugh it off” but Powell reiterated, “[N]o, I will kill you if you ever try to keep Zion away from me.” 1 Verbatim Report of Proceedings (Feb. 6, 2006) (1 VRP) at 47-48. A few weeks before the attempted burglary, Powell and Williams were sitting with two friends in Powell’s living room. Powell cocked his gun and said someone was going to die. Williams tried to make light of the comment and replied, “[Y]eah, everybody dies some day.” 1 VRP at 49. Powell replied, “[N]o, some . . . sooner than others.” Id. Williams felt scared after both incidents.

¶3 On the night of October 12, 2005, Powell and Williams had an argument over the phone while they were “on a break” in their relationship. 1 VRP at 46. At the time, Williams and her children lived with her parents, who regarded Powell as an uninvited guest. During their quarrel, Williams informed Powell she did not want him around Zion at that time. She hung up on him and turned off her cell phone.

¶4 The following morning, Williams turned her cell phone, back on. As she prepared for the day, Williams heard someone trying to open the front door “really quietly.” 1 VRP at 52. Her 13-year-old son looked outside and said with a panicked look on his face, “[I]t’s Jason.” 1 VRP at 53. Williams’ son said Powell was headed for the back of the house. Williams went to the back of the house to close the curtains in front of the sliding glass door. As she held the curtains shut, she could hear Powell trying to open the *76sliding glass door. She gathered up her children and locked herself in the bedroom with them. On her way to the bedroom, she called 911 to report Powell’s presence. Moments before the police arrived, Williams heard Powell knock on the door.

¶5 Officer Jason Watson arrived at Williams’ residence and first observed Powell at the front door slightly bent over looking like he was “working the mechanism.” 1 VRP at 92. When Powell noticed the officer approaching, Powell’s posture changed to “extremely rigid, staring one way and coming down the stairs very quickly with his arms barely moving at all.” Id. Officer Watson addressed Powell loudly three times, but Powell did not acknowledge him and tried to walk past. Officer Watson reached out to take Powell’s elbow and said, “[H]ey, we need to talk.” 1 VRP at 95. Powell pulled away shouting, “What the f[***] are you doing? Get the f[***] away from me.” 1 VRP at 96. A tussle ensued in which Powell attempted to escape from Officer Watson. Eventually, Officer Watson subdued Powell and placed him in handcuffs. As Officer Watson put handcuffs on Powell, a loaded handgun fell out of Powell’s shorts for which he did not have a concealed weapons permit. Powell was charged with one count of attempted burglary in the first degree with a firearm.

¶6 Williams observed the arrest from inside the house. She noted Powell wore black cut-off pants with black socks, black shoes, a black beanie hat, and a camouflage-colored jacket. She testified Powell normally wore all black, but she had never seen him wear the camouflage jacket before.

¶7 Prior to trial, the prosecutor submitted Williams should be allowed to testify to three incidents occurring before the night in question: (1) Powell had been convicted of attempted unlawful imprisonment and fourth degree assault for strangling Williams in 2004; (2) Powell had threatened Williams in 2005; and (3) Williams believed Powell used drugs, possibly on the night in question. The prosecutor stated this testimony would be elicited only from Williams. In response to that proffered evidence, defense counsel said:

*77I don’t want the word drug used anywhere in this trial. It’s not a trial about drugs and I’d prefer — my problem is you say methamphetamines and drugs, he’s going to jail. I don’t want that to happen. I — it’s not a trial about drugs. I want to keep that out in particular.

1 VRP at 12.

¶8 When defense counsel made this statement, the only testimony mentioned by the State was that of Williams. Subsequently, the State informed the court it also wished to call Powell’s roommate, Greg Kincaid, who would testify he witnessed Powell ingest methamphetamine just before he left for Williams’ home. In response, defense counsel stated:

And this Greg guy, I guess, can bring out that testimony. If in fact he was doing drugs with the Defendant the night before, he can bring... that stuff out, I imagine. But the things that Greg said was he was — he told me he was going to get his son.

1 VRP at 15-16.

¶9 The trial court ruled Williams could not testify to the 2004 strangling incident. The court allowed the evidence of the July and October threats against Williams. The court further ruled the evidence of drug use should not be mentioned in opening statement, but it would examine the evidence of drug use during an offer of proof.

¶10 After opening statements, the prosecutor submitted the offers of proof for the testimonies of Williams and Kincaid. The court ruled on the offers of proof separately.

¶11 During Williams’ offer of proof, the focus of the proffered testimony was on her general belief that Powell used drugs. The court ruled it would not allow Williams to testify that Powell had used drugs on the night in question because she had no personal knowledge. The court also ruled that, under ER 404(b), testimony that Williams did not want Powell around her son because Powell had used drugs was inadmissible. The court reasoned the prejudicial value outweighed the probative value of the evidence.

¶12 After a lunch recess, in the second offer of proof, Kincaid testified he observed Powell with his friend, An*78drew, from around 3:00 a.m. until 7:00 or 8:00 a.m. He testified he witnessed Powell use methamphetamine right before he left with Andrew and that Powell was acting unusually agitated. Kincaid also testified Powell was “upset ’cause she was - I think they had an argument and he wanted to see his kid and she would - she wouldn’t let him see him.” 1 VRP at 34. The State sought to introduce the testimony regarding drug use under ER 404(b) to establish Powell’s agitated mental state. Defense counsel did not offer expert testimony or object to the admission of the testimony based on the lack of expert testimony. Defense counsel’s cross-examination focused on Kincaid’s memory of the night, that Kincaid had left drug paraphernalia at Powell’s house, and that Kincaid had told officers the drugs belonged to Powell when the officers were executing a search warrant on Powell’s home. During argument, defense counsel contended:

I’d ask that you not include the in - the testimony because the motive in this case is so strong.

It’s uncontroverted that they got a - they got a warrant - warrant which gave them permission to go over there. But when they went over there, the officer testifies that he put a — or he writes that he put a piece of paper in the door and then came back and his paper was ~ had been gone. It tells him somebody’s been there. He went into the place, there’s new groceries that weren’t there the day before. Then he finds this Greg, the witness. And I’m sure inquiries were made and perhaps deals cut to clear himself.

1 VRP at 39. After the prosecutor explained there was no deal, the court ruled that the evidence was admissible:

Well, first of all, neither of these issues - arguments has anything to do with the admissibility of the evidence. In determining whether the evidence is admissible, it is - doesn’t make any difference whether I personally believe the witness or not. So, arguing his credibility to me is not something that I need to have considered. What I have to determine is whether the probative] value of the testimony outweighs its potential prejudicial effect.

*79This witness is willing to testify, as I understand it, that shortly before the Defendant went over to the residence of Ms. Williams, his mental state was somewhat incoherent, he apparently was acting in an unusual manner, and that he consumed a controlled substance just before he left.

The pro[bative] value of that is pretty strong, in my opinion, because apparently, that’s the issue that we have here, is whether he intended to just go over and talk to her or whether he intended to commit some other crime. I don’t - haven’t heard any argument that its prejudicial effect is outweighed by its probative] value and I wouldn’t find that it was in this point. So I’m going to admit the testimony, as indicated by the witness.

It’s permissible for you to question the witness about credibility, whether he thought he was going to get a deal or not. Permissible for you to bring up that in fact he wasn’t offered any deal. That’s all credibility issues and it’s up to the jury to decide whether they’re going to give any weight to this testimony based on the credibility of the witness. Not my job.

1 VRP at 40-41.

¶13 At trial, Kincaid provided the following testimony:

[Prosecutor]: Did you see the Defendant use methamphetamines that morning?

[Kincaid]: Yes, I did.

[Prosecutor]: And was the Defendant — what kind of mood was the Defendant in?

[Kincaid]: Umm, oh, how would you say? He wasn’t being himself. He was anxious.

[Prosecutor]: Uh-huh.

[Kincaid]: Uh, you could tell he was getting ready to do something, you know.

[Prosecutor]: Was he upset with Amber Williams?

[Kincaid]: Yes.

....

[Prosecutor]: Did he say that he was going over to Amber’s house?

[Kincaid]: Yes.

*801 VHP at 120-21. Defense counsel did not object. When Powell testified, he denied either taking methamphetamine or being high on the day of the incident. He claimed he went to Williams’ home to reclaim a bicycle he left there three months earlier. Neither the State nor defense counsel referred to Powell’s drug use thereafter.

¶14 A jury convicted Powell of attempted burglary in the first degree, and he was sentenced to 49 months of confinement and 18-36 months of community custody. Powell appealed his conviction arguing, inter alia,1 that the trial court’s admission of drug use evidence was prejudicial in violation of ER 403.2 The Court of Appeals, Division Two, reversed the conviction by split decision. State v. Powell, 139 Wn. App. 808, 811, 162 P.3d 1180 (2007). The majority found the trial court properly admitted evidence of Powell’s drug use, noting its relevance to explain Powell’s state of mind when he arrived at Williams’ door. Id. at 818. However, the Court of Appeals reversed the trial court due to the admission of Kincaid’s testimony without an expert’s explanation of the possible effect methamphetamine would have *81on its user. Id. This theory was neither advanced by the parties in their briefs nor raised at trial.

¶15 We granted the State’s petition for review. State v. Powell, 163 Wn.2d 1017, 180 P.3d 1292 (2008).

II. ISSUE

Whether the trial court’s admission of drug use evidence under ER 404(b) without testimony explaining the potential effect of the drug constitutes reversible error even though neither party raised the issue at trial or in their briefs.

III. ANALYSIS

¶16 Generally, evidence of a defendant’s prior misconduct is inadmissible to demonstrate the accused’s propensity to commit the crime charged. ER 404(b). However, the trial court may admit evidence of prior misconduct for other purposes like demonstrating intent so long as the probative value outweighs its prejudicial effect.3 Id.; State v. Foxhoven, 161 Wn.2d 168, 175, 163 P.3d 786 (2007). Generally, we defer to the assessment of the trial judge who is best suited to determine the prejudicial effect of a piece of evidence. State v. Posey, 161 Wn.2d 638, 648, 167 P.3d 560 (2007). Courts may admit ER 404(b) evidence to prove the defendant’s state of mind where the misconduct comes to bear on the defendant’s mental state at the time of the alleged offense. State v. Acosta, 123 Wn. App. 424, 434-35, 98 P.3d 503 (2004). For example, in State v. Lord, 117 Wn.2d 829, 872-73, 822 P.2d 177 (1991), we held the court did not abuse its discretion by admitting evidence of the defen*82dant’s alcohol and marijuana use under ER 404(b) to demonstrate his state of mind during the commission of the crime.

¶17 Similarly here, the State offered the drug use evidence to show Powell’s agitated mental state when he went to Williams’ home. Defense counsel objected to the testimony solely on the ground that Kincaid lacked credibility. The trial court found the probative value of Kincaid’s testimony was “pretty strong” as it went to Powell’s state of mind and whether “he intended to just go over and talk to her or whether he intended to commit some other crime.” 1 VRP at 41. The court concluded the probative value of the testimony outweighed its prejudicial effect, noting no argument to the contrary had been made. It admitted the evidence of Powell’s drug use for the limited purpose of demonstrating his mental state. 1 VRP at 40-41.

¶18 The Court of Appeals agreed the admission of Powell’s drug use was employed for the proper purpose — to show his state of mind. Powell, 139 Wn. App. at 818. However, the Court of Appeals reversed Powell’s conviction because the State failed to offer expert testimony to explain the actual or potential effect of methamphetamine. Id. It reasoned, without expert testimony “the jurors were left to speculate on this question from their own knowledge, knowing only that Powell was a law-breaking drug user.” Id.

¶19 On appeal, a party may not raise an objection not properly preserved at trial absent manifest constitutional error. State v. Kronich, 160 Wn.2d 893, 899, 161 P.3d 982 (2007); RAP 2.5(a)(3). We adopt a strict approach because trial counsel’s failure to object to the error robs the court of the opportunity to correct the error and avoid a retrial. State v. Kirkman, 159 Wn.2d 918, 935, 155 P.3d 125 (2007). We will not reverse the trial court’s decision to admit evidence where the trial court rejected the specific ground upon which the defendant objected to the evidence and then, on appeal, the defendant argues for reversal based on an evidentiary rule not raised at trial. State v. Korum, 157 *83Wn.2d 614, 648, 141 P.3d 13 (2006); State v. Ferguson, 100 Wn.2d 131, 138, 667 P.2d 68 (1983); State v. Koepke, 47 Wn. App. 897, 911, 738 P.2d 295 (1987) (“A party may only assign error in the appellate court on the specific ground of the evidentiary objection made at trial.” (citing State v. Guloy, 104 Wn.2d 412, 422, 705 P.2d 1182 (1985))).

¶20 The facts before the court mirror that which we confronted in Korum where the trial court considered the admission of misconduct evidence under ER 404(b) but defense counsel objected based on lack of foundation. 157 Wn.2d at 648. On appeal, the defendant alleged error under ER 403. Id. We found the defendant had not properly preserved the issue for appeal because, at trial, defense counsel objected only on the basis of lack of foundation. Id.

¶21 Here, defense counsel’s only argument regarding Kincaid’s testimony was that Kincaid was not credible. Defense counsel explicitly stated that if the court believed Kincaid, then his testimony was admissible.4 The trial court rejected the argument, determining Kincaid’s credibility irrelevant to the court’s ER 404(b) analysis. The trial court noted for the record that defense counsel presented no argument regarding the probative or prejudicial value of the offered evidence.5 During trial, defense counsel did not *84object to Kincaid’s testimony at all. Further, defense counsel neither objected to the lack of nor offered or requested expert or lay testimony to connect Kincaid’s observations of drug use to the possible effect on Powell. On appeal, Powell challenged the admissibility of the evidence based on ER 403. Given defense counsel’s failure to properly object to Kincaid’s testimony at trial, the assignment of error is not properly preserved for appellate review. We may not review the unpreserved assignment of error unless we determine the admission of Kincaid’s testimony constitutes manifest constitutional error.

¶22 First, the court must determine whether the alleged error is constitutional. Kronich, 160 Wn.2d at 899. An evidentiary error, such as erroneous admission of ER 404(b) evidence, is not of constitutional magnitude. State v. Everybodytalksabout, 145 Wn.2d 456, 468-69, 39 P.3d 294 (2002). This case concerns the allegedly erroneous admission of ER 404(b) evidence, and therefore the alleged error is not of constitutional magnitude.

¶23 Even if the alleged error was constitutional, it is dubious whether the error was manifest. An error is “ ‘manifest’ ” where it had “ ‘practical and identifiable consequences in the trial of the case.’ ” State v. Kirkpatrick, 160 Wn.2d 873, 880, 161 P.3d 990 (2007) (quoting State v. Stein, 144 Wn.2d 236, 240, 27 P.3d 184 (2001)). “The admission of evidence on an uncontested matter is not prejudicial error.” Brown v. Quick Mix Co., 75 Wn.2d 833, 839, 454 P.2d 205 (1969) (citing Matthews v. City of Spokane, 50 Wash. 107, 96 P. 827 (1908)).

¶24 Defense counsel specifically agreed that the State could introduce testimony from Kincaid regarding Powell’s drug use on the day of the attempted burglary. Defense counsel did not argue that the prejudicial effect of Kincaid’s testimony outweighed its probative value. Rather, defense counsel aired concerns about Kincaid’s credibility. There*85fore, that the probative value of Kincaid’s testimony outweighed its prejudicial effect was an uncontested issue. In addition, Powell has not shown how the admission of Kincaid’s testimony had practical and identifiable consequences on the outcome of the trial. The record shows the jury had ample testimony from Williams and Officer Watson to support its guilty verdict.

IV. CONCLUSION

¶25 We hold defense counsel failed to properly object to the admission of the drug use testimony under ER 404(b) and the record does not show the admission of the drug use testimony constitutes manifest constitutional error. We reverse the Court of Appeals and affirm Powell’s guilty verdict.