                                                                                                           FILED
                                                                                                          OF
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                                                                                                         vI' 11sL        t_S
                                                                                                2014 JUN 24
                                                                                                                  Ail 9: 03




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                               DIVISION II

STATE OF WASHINGTON,                                                        No. 43786 -4 -II


                                  Respondent,                         UNPUBLISHED OPINION


         v.



GARY ALLEN LOHR,


                                  Appellant.


         BJORGEN, J. —    A jury returned verdicts finding Gary Allen Lohr guilty of unlawful

possession of a controlled substance ( methamphetamine) and bail jumping. Lohr appeals his

convictions, asserting that the trial court violated his right to a fair trial by refusing to grant a

mistrial after the State questioned Lohr about certain facts underlying his previous conviction for

unlawful possession of methamphetamine. We affirm.

                                                    FACTS


          On the evening of December 9, 2011, Centralia police officers Adam Haggerty and Mary

Humphrey arrested Lohr for driving while his license was suspended. Humphrey searched Lohr
incident to his   arrest and   found   a small plastic   bag   containing                      in Lohr' s front


jacket pocket. Humphrey also found paperwork with Lohr' s name on it in the same jacket

pocket where she had found the methamphetamine.




1
    The parties stipulated at trial that the bag found in Lohr' s jacket pocket contained
methamphetamine.
No. 43786 -4 -II



         On December 12, 2011, the State charged Lohr with one count of unlawful possession of


a controlled substance. On April 5, 2012, the State amended its charges to add a count of bail

jumping, alleging that Lohr had failed to appear at a scheduled court hearing.

         Before trial, the State filed a motion requesting that the trial court allow it to present

evidence of facts underlying Lohr' s prior convictions for unlawful possession of

methamphetamine. The trial court denied the State' s motion, stating:

          The] [ f]irst motion the State filed was to allow the State to admit evidence
         regarding defendant' s prior use and possession of methamphetamine in response
         to the   claim of     unwitting    possession.    That   motion   is denied....       Depending on
         the defense case, depending on what testimony is given, that door might be
         opened, but unless and until it is that is not going to be allowed.

Report of Proceedings ( RP) at 12.


         At trial, Lohr testified that he used to work as a certified drug and alcohol counselor, has

had   several " run -  ins   with   the law,"   and was " familiar with the meth community in Lewis

County."    RP    at   157, 160, 163. Lohr further testified that he often allowed individuals that


needed help with their drug addiction issues to stay at his home. Lohr stated that after his

daughter passed away in 2008 or 2009, he " f[01 off the wagon" and started using marijuana,

alcohol, and prescription medications,             but that he did   not use "   illegal drugs."   RP at 163 -64.


Lohr expressed that he continued to have substance abuse issues until he was arrested on January

9, 2009, after which he pleaded guilty to second degree theft and unlawful possession of a

controlled substance. Lohr stated that after he was released from incarceration following his

guilty plea convictions, he discovered that people had inhabited his home, had caused extensive

damage to his home, and had left behind piles ofjunk, clothing, and drug paraphernalia.




                                                             2
No. 43786 -4 -II



          Lohr testified that he and some of his friends were cleaning his home on December 9,

2011, when Clarence Robbins arrived to give him a ride to pick up Lohr' s Blazer. Lohr said that

as he was leaving his house, Billie Orr handed him a jacket. Lohr testified that he put his social

security paperwork in a pocket of the jacket that Orr had handed to him. Lohr stated that he was

stunned when Humphrey found methamphetamine in his jacket later that evening. On cross -

examination, the following exchange took place:

                     State]: All right. You told counsel about a 2009 incident where you got in
          some trouble when a warrant was being served at your house; is that right?
                     Lohr] :A search warrant, yes.
                     State]: All   right.   And your testimony was that you personally were only
          using prescriptions and marijuana, things that you deemed to be not illegal at that
          time; is that right?
                     Lohr]: Yeah. That' s what I was using.
                     State]: But then you told counsel that you did get in some trouble for a
          methamphetamine issue out of that case; isn' t that right?
                     Lohr] :There       w[ ere]     methamphetamines                  there.        I    wasn'   t   using
          methamphetamines.

                     State]: Now, Mr. Lohr, I           want    you      to be very         clear   about   this.    That

          incident that got you in trouble, where was that methamphetamine, according to
          you?

                     Lohr] :I don' t know. I don' t know                where    it   was   found.      It was found in

          my house.
                     State]: Now, isn' t it true, Mr. Lohr, that in fact that methamphetamine was
          found by law enforcement inside of a wallet in a jacket pocket of yours; isn' t that
          correct?

                     Lohr] :I don' t recall.


RP   at   230.   Defense counsel objected, and the trial court excused the jury from the courtroom.

Defense counsel then moved for a mistrial, asserting that the State committed misconduct by

                                                                        ruling in limine.           The trial court sustained
 eliciting testimony in         violation   of   the trial   court' s




 defense   counsel' s objection,       but denied the        motion     for   a mistrial.      When the jury returned to the

 courtroom,      the trial   court stated, "   When we broke for lunch, Mr. Lohr was on the stand and there


 was some discussion going on about the 2009 methamphetamine case. You are to disregard any
                                                                3
No. 43786 -4 -II



                                                                      facts        the   prior methamphetamine case."          RP
questions or        any testimony regarding the            alleged            of




at   252.     The jury found Lohr guilty of unlawful possession of a controlled substance and bail

jumping. Lohr appeals his convictions.

                                                            ANALYSIS


             Lohr contends that the trial court violated his right to a fair trial and abused its discretion

by denying his motion for a mistrial after the State questioned him about officers finding
methamphetamine in his jacket pocket during a 2009 arrest, which arrest led to his previous

conviction for unlawful possession of a controlled substance. We disagree and affirm Lohr' s

convictions.



             A trial   court should grant a motion          for   a mistrial "'    only when the defendant has been so

prejudiced that nothing short of a new trial can insure that the defendant will be tried fairly. '
State   v.   Johnson, 124 Wn.2d 57, 76, 873 P. 2d 514 ( 1994) (                     quoting State v. Hopson, 113 Wn.2d

273, 284, 778 P. 2d 1014 ( 1989)).                We review a trial court' s denial of a mistrial for an abuse of

discretion      and will      only find   such abuse "`     when no reasonable judge would have reached the

same conclusion. '             Hopson, 113 Wn.2d           at   284 ( quoting Sofie       v.   Fibreboard   Corp.,   112 Wn.2d


636, 667, 771 P. 2d 711 ( 1989)).                Additionally, we will overturn a trial court' s denial of a mistrial

motion only when there is a substantial likelihood that the error underlying the mistrial motion

affected      the   jury' s   verdict.   State   v.   Rodriquez, 146 Wn.2d 260, 269 -70, 45 P. 3d 541 ( 2002). In


                    the effect            irregular                  during    trial,    we examine (    1) its   seriousness, (   2)
 determining                      of an                 occurrence




 whether it involved cumulative evidence, and ( 3) whether the trial court properly instructed the

jury to      disregard it. Johnson, 124 Wn.2d               at   76. We "[    c] onsider[]      these factors with deference to


 the trial    court."    State v. Perez -Valdez, 172 Wn.2d 808, 818, 265 P. 3d 853 ( 2011).


                                                                     4
No. 43786 -4 -II



          Here, assuming that it was improper for the State to question Lohr about police finding
                                                                                2
methamphetamine         in his jacket   pocket    during   the 2009   arrest,       any impropriety was mitigated by

the cumulative evidence of Lohr' s other acts and by the trial court' s curative instruction to the

jury to disregard the State' s question. Prior to the State' s improper question to Lohr, Lohr had
                                                     issues,                 ins with        the law,"
already testified to    having drug      addiction             several " run -                           and associations




with   the Lewis   County " meth      community."       RP at 160, 163. Additionally, Lohr had already

testified as to his 2009 arrest, admitted that the 2009 arrest led to a conviction for unlawful

possession of a controlled substance, and admitted police found methamphetamines in his home

during the 2009 arrest. The only new information implied by the State' s improper question to

Lohr was that the methamphetamines found in Lohr' s home were located in a wallet in his jacket

pocket.




            While the implication of the State' s question to Lohr undermined his unwitting

possession defense, given the cumulative evidence described above we cannot say it so

prejudiced     Lohr   such "`   that nothing short of a new trial c[ ould have] insure[ d] that [he was] tried
             Johnson, 124 Wn.2d              76 ( quoting Hobson, 113 Wn.2d            at   284).   Additionally, any
fairly.'"                               at




prejudice resulting from the State' s improper question was cured by the trial court' s instruction

to the jury to disregard any questions or testimony regarding the alleged facts of the prior
methamphetamine case. "            We presume that juries follow the instructions and consider only

evidence      that is properly before them."       Perez- Valdez, 172 Wn.2d at 818 -19. Accordingly, we




 2
     The State does not cross appeal the trial court' s determination that it was improper to question
 Lohr about methamphetamine being found in his jacket pocket during the 2009 arrest leading to
 his previous unlawful possession of a controlled substance conviction.
                                                               5
No. 43786 -4 -II



hold that the trial court did not abuse its discretion by denying Lohr' s motion for a mistrial, and

we affirm his convictions.


        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

2. 06. 040, it is so ordered.



                                                                         A
We concur:




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