                                                                              Fit ED
                                                                       COURT OF APP j' LS
                                                                              ISIOE


    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SCOTT EUGENE COLLINS,                                            UNPUBLISHED OPINION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.

II.       METHAMPHETAMINE POSSESSION


          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
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      - -         - -



       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




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