                                                                          FILED
                                                                        MAY 24, 2018
                                                                In the Office of the Clerk of Court
                                                               WA State Court of Appeals, Division III




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

STATE OF WASHINGTON,                          )
                                              )         No. 34934-9-III
                     Respondent,              )
                                              )
       v.                                     )
                                              )
STEPHEN BENTON HARRIS, JR.,                   )         UNPUBLISHED OPINION
                                              )
                     Appellant.               )

       FEARING, J. — When a defendant raises the defense of unwitting possession to

charges of possession of a controlled substance, does the trial court abuse its discretion

under ER 403 when excluding evidence from a police officer that the officer observed

another person in contact with the defendant to be under the influence of that controlled

substance? Based on the unusual facts behind this appeal, we answer in the negative.

We affirm appellant Stephen Harris’ conviction for possession of methamphetamine.

                                          FACTS

       Although the jury convicted Stephen Harris with possession of a controlled

substance, our facts begin with Harris’ alleged assault of his girlfriend, Angela Cline.
No. 34934-9-III
State v. Harris


Harris contends that methamphetamine he possessed belonged to Cline and that a police

officer should have been allowed to testify to Cline’s methamphetamine behavior.

      On an autumn day, Spokane Police Officer Kellee Gately responded to a report of

an assault on Cline. Officer Gately entered a laundromat and encountered a distressed

and traumatized Cline, who suffered from a bloody nose. By speaking with Cline and

other witnesses, Gately concluded she held probable cause to arrest Cline’s boyfriend,

Stephen Harris, for domestic violence.

      Spokane Police Officer Kellee Gately found Stephen Harris seated in a car parked

in the laundromat parking lot. Officer Gately handcuffed Harris and searched his

pockets. Gately seized from Harris’ front pocket a ubiquitous small, clear plastic baggie

with a white residue therein. Gately believed the white substance constituted

methamphetamine, although she did not adjudge Harris as being under the influence of

the stimulant. She warned Harris that, if the bag contained methamphetamine, authorities

would charge him with a felony. Harris exclaimed, “‘that’s not mine,’” as if distancing

himself from the drugs. Report of Proceedings (RP) (Oct. 18, 2016) at 88. Officer

Gately also discovered Angela Cline’s cell phone and payee card in Harris’ pocket.

                                     PROCEDURE

      The State of Washington charged Stephen Harris, in superior court, with

possession of a controlled substance and, in district court, with domestic violence. The

district court dismissed with prejudice the domestic violence charge brought against

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No. 34934-9-III
State v. Harris


Harris. As a result of the district court dismissal, the superior court granted the following

pretrial order in limine:

              The State has stipulated that the fact that [Stephen Harris] was
       arrested for a domestic violence offense in particular is irrelevant to the
       issue of whether [Harris] knowingly possessed a controlled substance.
       Accordingly, per ER 404, the jury shall only be informed, and the State’s
       witness shall be instructed to limit their testimony, to the fact that [Harris]
       was lawfully arrested.

Clerk’s Papers (CP) at 94-95.

       During opening statement, Stephen Harris’ counsel stated that Angela Cline

appeared to be under the influence of methamphetamine at the laundromat. Angela Cline

could not be located for trial, and thus the jury heard no testimony from Cline.

       During direct examination at trial, Spokane Officer Kellee Gately testified to

responding to a call and eventually arresting Stephen Harris. She did not disclose to the

jury the purpose of the call or the reason for arresting Harris.

       During cross-examination of Police Officer Kellee Gately, the following exchange

occurred:

              Q And he exclaimed in surprise “that’s not mine.” Is that correct?
              A I don’t know if surprise is the correct word. He did exclaim
       “that’s not mine.”
              Q As if he hadn’t seen it?
              A No, as if distancing himself from it.
              Q As if trying to tell you that he didn’t expect to see that?
              A That could be.

RP (Oct. 18, 2016) at 88.


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No. 34934-9-III
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       Next during the cross-examination of Officer Kellee Gately, defense counsel

asked her whether, at the time she interviewed Angela Cline, Cline appeared under the

influence of methamphetamine. The State objected on the basis of the order in limine,

and Gately never answered the question in the presence of the jury. Counsel and the trial

court then engaged in a lengthy discussion as to the relevance of Angela Cline’s alleged

consumption of methamphetamine, the propriety of such testimony in light of the pre-

trial order in limine, and the confusing nature of any such testimony. Because we review

the trial court’s ruling on the State’s objection for an abuse of discretion, we quote much

of the discussion in order to discern arguments forwarded, facts on which the parties

relied, and the basis of the trial court’s ruling.

       Immediately after the objection by the State to Officer Kellee Gately’s testimony

of the appearance of Angela Cline, the following colloquy occurred outside the presence

of the jury:

              MR. NELSON [Deputy Prosecutor]: Your Honor, I think if the
       defense wants to go into her demeanor, there were a lot of things going on
       and, obviously, if he wants to elicit the fact that she is agitated and upset.
       And I think Officer Gately said she might have even been under the
       influence of drugs at the time she was interviewed. She was also, Your
       Honor, to be quite blunt, under the influence of just having the hell beat out
       of her. She was bleeding. She was crying. I have marked as State’s
       Exhibit No. 3 photographs taken of her. I think photographs are absolutely
       relevant.
               ....
              If he wants to open the door to her demeanor and her appearance, it
       would be the State’s position the fact that she reported she was beaten


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No. 34934-9-III
State v. Harris


      severely, the fact she’s bleeding from the mouth, the fact her trach tube was
      being taken from her and the fact she had been crying are all relevant.
              THE COURT: The problem I have is that you’ve [defense counsel
      has] already done it. You did it in opening statement and you did it again
      here, and it’s now in the minds of the jury that she has, she may be under
      methamphetamine when, in fact, she was traumatized from domestic
      violence and that’s what brought the police. And I struggled when you said
      that in your opening statement. “He’s opened the door,” I said that to
      myself, but the State didn’t say anything. They didn’t object in the
      opening. This is the first time.
              ....
              THE COURT: You have elicited testimony about her emotional
      condition.
              MR. ELSTON [Defense Counsel]: No.
              THE COURT: And to just unilaterally say that she is under the
      influence of methamphetamine is an unfair representation, in my
      estimation.

RP (Oct. 18, 2016) at 90-92. Defense counsel responded:

              MR. ELSTON: Your Honor, I will would [sic] be happy to call
      Officer Gately back to the stand and go through the parts of her report that
      we’re referring to. I think this court really needs to know what’s in the
      report and there is a lot of different information in the report. Okay. So
      Officer Gately does talk about her demeanor and behavior. I did not ask
      Officer Gately what was her demeanor. I did not ask Officer Gately what
      was her behavior. Officer Gately testified through her training and
      experience she recognizes in the field when people appear to be under the
      influence of methamphetamine. It is that training and experience that led
      her to the opinion that Mr. Harris was not acting as if he was under the
      influence of methamphetamine. Her observation, and we can put her on
      stand right now to confirm this, her observation that Ms. Cline appeared to
      be under the influence of methamphetamine was not based on her being
      upset. It was not based on her being assaulted. It was not based on her
      emotional state of mind, but rather on her physical behavior, manifestations
      of being under the influence of a stimulant, first of all.
              Second of all, based on the statement against interest by Ms. Cline
      herself saying “I used methamphetamine in the last 24 hours.” So the State
      has attempted to blur these issues and say that if we address

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No. 34934-9-III
State v. Harris


       methamphetamine, we’re addressing the assault case. They are two
       completely separate things. . . . I don’t believe she will testify that the
       reason why she believed Ms. Cline was under the influence of
       methamphetamine was because of her upset behavior or injuries due to the
       assault. She believes she was under the influence of methamphetamine
       because of objective physical manifestations that she looks for when she’s
       dealing with people based on her training and experience. . . .
               ....
               And I can’t stress strongly enough that it was also followed with a
       statement against interest, which is admissible, from Ms. Cline that she had,
       in fact, been using methamphetamine. So this doesn’t have anything to do
       with the assault, and it doesn’t have anything to do with the symptoms of
       the assault or the behavior generated by the assault. It’s strictly based on
       this officer’s professional training and experience in recognizing physical
       manifestations being under the influence of a stimulant such as
       methamphetamine.

RP (Oct. 18, 2016) at 92-94.

       The State countered that Police Officer Kellee Gately is not a drug recognition

expert, and, accordingly, the defense could not qualify Gately as an expert to testify

whether Angela Cline acted under the influence of methamphetamine. Nevertheless, the

State did not object to defense counsel asking Officer Gately whether Stephen Harris was

under the influence or Gately’s answer to the question. The State further contended that

defense counsel should not be allowed to surgically extract some observations regarding

Cline without the jury hearing what other circumstances could have affected her

demeanor that day. The State argued that, if the defense solicited testimony about Cline’s

deportment, the State could present evidence on all of Officer Gately’s observations:

              This lady, Angela Cline, was bleeding. She was distraught. She was
       dirty. She said she had been threatened. She said she was being held

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No. 34934-9-III
State v. Harris


       against her will. She said her dog had been threatened, her family had been
       threatened. There were all sorts of things going on with this lady.

RP (Oct. 18, 2016) at 94-95. The State also mentioned that Cline told law enforcement

that Stephen Harris had cashed her disability checks.

       After conclusion of the first colloquy, the trial court remarked:

              THE COURT: I need you to both start thinking about how I can
       mitigate this.
              So we did make provision that evidentiary prohibitions subject to
       reconsideration as evidence comes forward such as opening the door. I
       appreciate that whether there was or wasn’t domestic violence against Ms.
       Cline is not probative of whether Mr. Harris was in possession of a
       controlled substance. But the defense has cast the theory that the
       methamphetamine is Ms. Cline’s and the proof of that is how she was
       behaving. And that ignores her presence, state of being, manner of
       expression, however one would characterize it, is affected by being
       traumatized. So now what do we do?

RP (Oct. 18, 2016) at 97.

       Stephen Harris’ counsel then commented that Officer Kellee Gately could testify

that Angela Cline stated she had ingested methamphetamine in the last twenty-four hours

because of the statement against interest exception to the hearsay rule. The trial court

responded:

              THE COURT: But not in this case. She is not a party to this case.

RP (Oct. 18, 2016) at 98.

       Following further argument, the trial court granted defense counsel’s request to

question Officer Kellee Gately as an offer of proof outside the presence of the jury.


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No. 34934-9-III
State v. Harris


Defense counsel questioned Officer Gately regarding her ability to detect drug use:

               Q: So with regard to methamphetamine, what symptoms of
       methamphetamine use did you recognize in Ms. Cline’s behavior?
               A: I believed that I recognized some paranoia. Her eyes as far as
       pinpointed. She was very busy, yet not everything flowed together in
       sequence.
               Q: When you say “pinpointed,” do you mean her pupils were
       constricted?
               A: That’s correct.
               Q: And is that something in your training and experience that is a
       sign of stimulant use?
               A: Yes.
               Q: Do you – did you feel at the time of that interview that you were
       confusing her mannerisms associated with potentially being a victim of
       assault and her feelings about Mr. Harris with the symptoms of
       methamphetamine use?
               A: It was a combination of everything. That’s why I arrested him
       for the original charge of domestic violence. I believed her nose was
       broken. She was a wreck. She was a wreck.
               Q: Right. What I’m asking about is your conclusion that she
       appeared to be under the influence of methamphetamine. Do you feel
       strongly that that was a clear basis for you to make that conclusion?
               A: It was one of my deciding factors for the jumping around in the
       story, which is why I had asked her, when you befriend somebody, they
       usually become very honest. So I said, “Have you been using today?”
               Q: What did she say?
               A: She said yes.

RP (Oct. 18, 2016) at 104-05. Officer Gately also testified that Cline’s irrational

behavior could be attributable to drug use, fear, or paranoia. Ultimately, the following

exchange occurred between defense counsel and Officer Gately:

              Q: . . . Is your opinion that Ms. Cline was under the influence of
       methamphetamine separate and distinct from her symptoms of having been
       a victim of assault?
              ....

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No. 34934-9-III
State v. Harris


              A: I believe in my honest opinion that [it] is a totality of the
      circumstances. It’s not just meth. I was there for a different purpose.
              Q: . . . I understand you have a different focus and it’s hard to
      separate out the two.
              A: Impossible, I would say. I can’t tell you if there were head
      injuries onboard. It appeared she had a broken nose.
              Q: And I’m not asking you for a medical diagnosis. But it is your
      opinion, based on your training and experience, that she was under the
      influence of methamphetamine; is that correct?
              A: That was one drug, yes.
              Q: Okay. And she, in fact, admitted to you using methamphetamine
      that day or within the last 24 hours?
              A: Yes.
              Q: And notwithstanding the issues of the assault, do you still believe
      that she was under the influence of methamphetamine, in your opinion,
      based on your training and experience, not as a doctor, not as a [drug
      recognition expert], but as a law enforcement officer with 27 years
      experience?
              ....
              MR. NELSON [Deputy Prosecutor]: Your Honor, she’s already
      testified she can’t make that distinction. He’s asking the same question
      over and over and over looking for a proper response.
              THE COURT: She said it was impossible. I think I’m going to
      sustain the objection. I have to figure out what to do. I have to figure out
      what to do. It’s a stew. I mean, you made a stew.

RP (Oct. 18, 2016) at 112-14.

      The trial court entertained additional argument. Stephen Harris’ counsel

remarked:

              I would love to have been able to track down Ms. Cline to ask her if
      it was her methamphetamine. We couldn’t find her. So we’re stuck in this
      situation of an officer who told us in an interview, “yes, I think she was
      under the influence of methamphetamine by her appearance and behavior
      and she admitted using it,” that being relevant to whose methamphetamine
      this was.


                                            9
No. 34934-9-III
State v. Harris


              We have a case where it’s clear that the officers collected a number
      of items of Ms. Cline’s from my client’s pockets at the laundromat where
      they were at. It’s our theory of the case, and we should be able or entitled
      to argue our theory of the case that that was Ms. Cline’s methamphetamine
      and it’s significant circumstantial evidence that Ms. Cline appeared to be
      under the influence. So that’s our theory. That’s what I presented in our
      opening statement.

RP (Oct. 18, 2016) at 116-17. The prosecution commented:

               But I think most importantly, Your Honor, I think this is all a red
      herring, because possession of a controlled substance, the elements of the
      offense are possession. No one can own methamphetamine, Your Honor.
      It’s contraband. And whether or not Mr. Harris had it in his possession is
      one question and the other question is whether or not that possession was
      unwitting. And that’s a statutory defense. So, whether or not it was her
      methamphetamine, we have this happen all the time where we pull over a
      car; woman has the meth and said “my boyfriend said hold this because he
      is going to jail.” It’s possession. It doesn’t matter whose it is. Nobody has
      title to it. Nobody has ownership of that drug. It’s possession. And if he
      had it in his pocket and he knew it was there, he is guilty of possession of a
      controlled substance. I don’t care who bought it. I don’t care who was
      using.

RP (Oct. 18, 2016) at 118. Stephen Harris’ counsel responded, but did not confront the

State’s theory that regardless of whether the methamphetamine belonged to Angela Cline,

Harris committed the crime of possession.

      The trial court recessed, during which recess counsel briefed the evidentiary

question. The patient trial court then entertained further argument. Defense counsel

commented:

             On the other hand, having presented the reason why we believe the
      officer’s opinion that this individual was under the influence of
      methamphetamine, we believe it is relevant because we believe, and it’s our

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No. 34934-9-III
State v. Harris


      theory of the case, these two were doing laundry together; that items were
      moved from pockets to pockets. The State has already elicited testimony
      that my client said “that’s not mine.” We already elicited testimony from
      the officer that my client was in possession of other items of Ms. Cline’s,
      which they returned to Ms. Cline. So we already have a factual basis to
      believe he is in possession of some of Ms. Cline’s items. The fact that Ms.
      Cline was under the influence of methamphetamine and the
      methamphetamine my client is accused of possessing is a used up relatively
      empty bag of methamphetamine with some residue left in it. I believe it is
      relevant to show that he unwittingly possessed it along with the other items
      of hers pursuant to our theory of the case.
             So we believe the methamphetamine, being under the influence of
      methamphetamine, is admissible and relevant, and so we asking for that.

RP (Oct. 18, 2016) at 128-29. Although defense counsel argued unwitting possession, he

did not expressly claim that Stephen Harris knew not that Angela Cline handed him

methamphetamine.

      The trial court finally ruled:

               THE COURT: Here is my ruling, and you all do what you think is
      appropriate.
               I think if I had had a motion in limine before the trial to exclude
      testimony about whether Ms. Cline had methamphetamine, had taken
      methamphetamine, I would have had a better opportunity to manage the
      case, but I didn’t. And it came out, and that’s the nature of a trial. I mean,
      trials, you never know what’s going to happen and it’s a fluid circumstance.
               My sense is that under ER 401 and 402, there may be some
      probativeness about Ms. Cline’s physical condition and its impact on
      Officer Gately’s assessment that she was under the influence of
      methamphetamine, but my concern is that if I allow that in, there is no way
      for me not to risk that the jury is going to be taken by the unfortunate
      physical condition of Ms. Cline as she has been beaten, her nose had been
      broken; she’s terrified of Mr. Harris. And he’s not on trial for that. He’s
      on trial for whether or not he possessed methamphetamine, a residue
      amount, at that time. And as challenging as it is for all of us, I feel like
      following the law I would have to subscribe to [ER]403 here and not allow

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No. 34934-9-III
State v. Harris


       it because it would risk—it’s going to spill over and he’s going to be
       viewed by the jury as the person who inflicted that assault. And that’s not
       what he’s on trial for.
               ....
               THE COURT: But here is my problem: It’s the defense’s theory
       that it’s her meth, and the fact that she appeared to have meth is, you know,
       that’s not too speculative. I mean, in other words, it’s not the kind [of]
       thing that I could exclude on some evidentiary basis. It does fall within
       [ER]401 and 402. It’s rough. I don’t like the fact that what happened to
       her happened to her and she was there in that circumstance and appearing
       the way she did because of what happened to her, but I can’t change the
       other aspects of the case. It is what it is.

RP (Oct. 18, 2016) at 133-35. The trial court later added:

              I’m going to limit the defense from attributing the observation that
       she was under the influence of meth because, as this hearing has
       demonstrated, it really turns into a mini trial about what should or shouldn’t
       come in along with it and it’s just too murky for me. It’s too difficult to try
       to parse it out. For example, when you get to the fact that one of the
       behaviors that Officer Gately based her opinion on about whether she was
       or wasn’t under the effect of meth, that she declined medical attention. And
       when I asked what that was, “her face was bleeding,” we just get too far
       and I’m not comfortable with that. So I’m issuing, if you will, an order in
       limine that we’re not going to introduce the officer’s opinion that the
       witness appeared to be under the influence of meth.

RP (Oct. 18, 2016) at 144-45.

       Stephen Harris elected not to testify in his defense. The trial court, over the

State’s objection, instructed the jury on the law of unwitting possession. The jury

returned a verdict of guilty, and the court sentenced Harris to twelve months.




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No. 34934-9-III
State v. Harris


                                  LAW AND ANALYSIS

       The sole question on appeal is whether the trial court erred when denying Stephen

Harris the opportunity to question Officer Kellee Gately as to whether, based on her

observations, Angela Cline appeared under the influence of methamphetamine. The trial

court initially, to the benefit of Harris, excluded testimony under ER 403 that Harris

assaulted Angela Cline. The trial court later excluded Kellee Gately’s testimony in part

because evidence of any effects of methamphetamine intertwined with evidence of the

effects of the assault. Allowing testimony of Cline being under the influence of the

controlled substance without permitting evidence of the assault would mislead the jury as

to the condition in which Officer Gately found Cline. Although Gately testified outside

the hearing of the jury that she deemed Cline to be under the influence, Gately also

testified that she could not distinguish between the distress and injuries resulting from the

assault with the effects of methamphetamine.

       The trial court, as part of its later ruling, did not identify any evidence rule that

supported its decision. Nevertheless, the trial court noted that insertion of evidence of

Cline’s behavior would create a mini-trial on the question of what caused that behavior.

Isolated evidence of Cline suffering from the ingestion of the methamphetamine would

mislead the jury. Such a ruling incorporates concepts found in ER 403. The rule

bespeaks:

              Although relevant, evidence may be excluded if its probative value

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No. 34934-9-III
State v. Harris


       is substantially outweighed by the danger of unfair prejudice, confusion of
       the issues, or misleading the jury, or by considerations of undue delay,
       waste of time, or needless presentation of cumulative evidence.

We therefore analyze this appeal on the assumption that the trial court rendered a ruling

under ER 403. Stephen Harris does not contend otherwise and does not argue the trial

court failed to follow the steps required for an ER 403 ruling.

       Stephen Harris bases his assignment of error in part on constitutional grounds. A

defendant’s right to an opportunity to be heard in his defense, including the right to

examine witnesses against him and to offer testimony, is basic in our system of

jurisprudence. Chambers v. Mississippi, 410 U.S. 284, 294, 93 S. Ct. 1038, 35 L. Ed. 2d

297 (1973); State v. Jones, 168 Wn.2d 713, 720, 230 P.3d 576 (2010). For purposes of

our review, we do not consider constitutional principles of assistance. Although the

accused enjoys a constitutional right to present a defense, the scope of that right does not

extend to the introduction of otherwise inadmissible evidence. State v. Aguirre, 168

Wn.2d 350, 362-63, 229 P.3d 669 (2010). An accused does not have a right to offer

incompetent, privileged, or otherwise inadmissible evidence. State v. Lizarraga, 191 Wn.

App. 530, 553, 364 P.3d 810 (2015), review denied, 185 Wn.2d 1022, 369 P.3d 501

(2016). Therefore, we focus on Washington evidentiary rules.

       Relevant evidence tends to make the existence of any fact that is of consequence

to the determination of the action more probable or less probable than it would be without

the evidence. ER 401. Generally, relevant evidence is admissible. ER 402. “The

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No. 34934-9-III
State v. Harris


threshold to admit relevant evidence is very low. Even minimally relevant evidence is

admissible.” State v. Darden, 145 Wn.2d 612, 621, 41 P.3d 1189 (2002). We later

examine the weight of Officer Kellee Gately’s testimony of Angela Cline’s lack of

sobriety. Nevertheless, we proceed on the assumption that the testimony holds relevance

to the guilt of Stephen Harris.

       ER 403 allows relevant evidence to be excluded when the danger of unfair

prejudice substantially outweighs its probative value. State v. Barry, 184 Wn. App. 790,

801, 339 P.3d 200 (2014). Trial courts have considerable discretion to consider the

relevancy of evidence and to balance the probative value of the evidence against its

possible prejudicial impact. State v. Rice, 48 Wn. App. 7, 11, 737 P.2d 726 (1987). A

decision to admit or exclude evidence is reviewed for an abuse of discretion. City of

Kennewick v. Day, 142 Wn.2d 1, 5, 11 P.3d 304 (2000). Because of the trial court’s

considerable discretion in administering ER 403, reversible error is found only in the

exceptional circumstance of a manifest abuse of discretion. State v. Gould, 58 Wn. App.

175, 180, 791 P.2d 569 (1990).

       To balance the weight of Angela Cline’s purported use of methamphetamine

compared to the evidence’s misleading nature and its creation of an undue waste of time,

we analyze the law with regard to the crime charged. The trial court convicted Stephen

Harris of unlawful possession of a controlled substance, in violation of RCW

69.50.4013(1). This statute declares:

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No. 34934-9-III
State v. Harris


              It is unlawful for any person to possess a controlled substance unless
       the substance was obtained directly from, or pursuant to, a valid
       prescription or order of a practitioner while acting in the course of his or
       her professional practice, or except as otherwise authorized by this chapter.

RCW 69.50.4013(1) establishes a strict liability crime in that the State need not prove

knowledge of the possession. State v. Sundberg, 185 Wn.2d 147, 149, 370 P.3d 1 (2016).

Nevertheless, to reduce the harshness of this offense, courts have created an unwitting

possession defense and placed the burden on the defendant to establish the defense by a

preponderance of the evidence. State v. Sundberg, 185 Wn.2d at 149. The doctrine

permits a defendant to avoid liability if he can prove by a preponderance of the evidence

that he did not know the substance was in his possession or did not know the nature of the

substance. State v. Deer, 175 Wn.2d 725, 735, 287 P.3d 539 (2012).

       On appeal as at the trial court, Stephen Harris contends that any opinion of Officer

Kellee Gately as to whether Angela Cline functioned under the influence of

methamphetamine related to his unwitting possession defense. According to Harris, the

testimony tended to show that he did not know the methamphetamine to be in his

possession because Officer Gately testified that Harris did not act as if he had ingested

methamphetamine. We question the practical logic behind this argument. Assuming

Cline to have ingested methamphetamine stored in the baggie found in Harris’ pocket, it

does not follow that Harris lacked knowledge of the baggie and its content within his

pocket. Harris could have given the methamphetamine to Cline. Cline could have


                                             16
No. 34934-9-III
State v. Harris


handed the methamphetamine to Harris to hold. Despite carrying the burden to show

unwitting possession, Harris never testified that he did not know the methamphetamine to

be inside his pants. He did not testify the methamphetamine accidentally landed in his

pocket. Therefore, we question the extent of the relevance of such testimony.

       Spokane Officer Kellee Gately also testified that she found Angela Cline’s payee

card and cellphone in Stephen Harris’ pocket. Harris likewise did not proffer any

evidence that he lacked knowledge of the cellphone and card sitting in his pocket.

       Stephen Harris emphasizes Police Officer Kellee Gately’s testimony that Harris

declared that the methamphetamine was not his and that Harris could have, with this

utterance, been claiming that he lacked knowledge of the methamphetamine being in his

pants. Nevertheless, Harris never exclaimed to Gately that he knew not of the presence

of methamphetamine. Gately’s concession that Harris could have meant to protest any

knowledge of the methamphetamine lacks a firm evidentiary foundation. Gately first

observed that Harris wanted to distance himself from the methamphetamine, without

Harris denying knowledge of the substance. Gately’s testimony as to the purpose behind

Harris’ comment incorporated speculation.

       In addition to the tangential relevance of Officer Kellee Gately’s observations of

Angela Cline’s sobriety to the issue of unwitting possession, the trial court based a ruling

on witness Kellee Gately’s inability to detach her observations consistent with Angela



                                             17
No. 34934-9-III
State v. Harris


Cline’s drug use from her viewing the results of domestic violence. For these reasons,

we hold the trial court did not abuse its discretion.

       Stephen Harris emphasizes the state Supreme Court decision in City of Kennewick

v. Day, 142 Wn.2d 1 (2000) to support his position. In Day, the city charged Doug Day

with possession of marijuana and possession of drug paraphernalia. An officer found

marijuana and a marijuana pipe in the console of Day’s car. Day denied knowledge of

the marijuana and pipe being present in his car and testified to his car previously being

repaired by an employee of a repair shop, which employee the shop fired for drug use.

The trial court prohibited testimony regarding Day’s reputation for sobriety on the ground

that such evidence did not constitute character evidence but instead addressed Day’s

earlier conduct. On this basis, the trial court ruled the evidence irrelevant.

       On appeal, the Supreme Court, in City of Kennewick v. Day, determined the lower

court abused its discretion in excluding evidence of Doug Day’s reputation of avoiding

drugs. The court held the evidence relevant. The court declared in part:

             When the defense of unwitting possession is raised, the defendant’s
       knowledge is directly relevant to the defense of unwitting possession.
       Accordingly, the universe of relevant evidence expands.

City of Kennewick v. Day, 142 Wn.2d at 11.

       The facts, contentions, and rulings in City of Kennewick v. Day diverge greatly

from Stephen Harris’ appeal. Stephen Harris never testified. He provided no direct

evidence that he lacked knowledge of the presence of the methamphetamine. He sought

                                              18
No. 34934-9-III
State v. Harris


only to introduce a police officer’s impression of a third-party’s use of

methamphetamine. Harris never sought to introduce evidence of his reputation for

sobriety. Harris’ trial court did not rule the offered testimony irrelevant. The trial court

recognized the relevancy of the evidence but barred the evidence under ER 403. The

Supreme Court, in City of Kennewick v. Day, noted that the trial court abused its

discretion by misreading the law as prohibiting the introduction of the character evidence.

       We agree with the State that the trial court might have properly permitted the

introduction of Officer Kellee Gately’s testimony that Angela Cline looked to be

influenced by methamphetamine. Nevertheless, even when evidence is admissible, the

trial court retains discretion to preclude its use under ER 403. State v. Perez-Valdez, 172

Wn.2d 808, 815, 265 P.3d 853 (2011).

       We note that Kellee Gately testified, outside the presence of the jury, that Cline

told her she had imbibed methamphetamine that day. On appeal, Harris does not argue

that Officer Gately should have been able to testify to Cline’s concession of

methamphetamine use. An out-of-court statement against interest survives the hearsay

rule only with the unavailability of the declarant. ER 804(b)(3). We do not know what

attempts either party asserted to subpoena Cline in order to render Cline unavailable for

purposes of the hearsay exception. ER 804(a)(5).

       The State also argues that any error in excluding testimony was harmless error.

We need not address this additional argument.

                                             19
No. 34934-9-111
State v. Harris


                                     CONCLUSION

       We affirm Stephen Harris' conviction of possession of a controlled substance.

Due to Harris' indigency, we deny the State costs on appeal.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.




WE CONCUR:




Pennell, A.CJ.




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