State Of Washington v. Brian Christopher Oltman ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON, ) No. 79309-8-I
)
Respondent, )
)
v. )
)
BRIAN CHRISTOPHER OLTMAN, ) UNPUBLISHED OPINION
)
Appellant. )
)
VERELLEN, J. — Prior conduct evidence must be relevant to the crime
charged to be admissible under ER 404(b). When charged with the possession of
methamphetamine with intent to manufacture or deliver, evidence of the current
production of a large quantity of marijuana, together with packaging materials
adjacent to a scale with traces of methamphetamine and marijuana, is relevant to
the intent to manufacture or deliver. Although the State did not charge Brian
Oltman for illegally manufacturing or delivering marijuana, the trial court’s
admission of the marijuana grow operation in his home was not precluded by
ER 404(b).
Oltman argues the prosecutor committed misconduct during his closing
argument by using evidence of the marijuana grow operation to argue Oltman had
a larger plan to manufacture and distribute a variety of drugs. Because a
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prosecutor has wide latitude to make arguments from the evidence and the
argument stayed within the scope of the trial court’s decision to admit evidence of
the grow operation, Oltman fails to show any misconduct.
Therefore, we affirm.
FACTS
The police conducted a drug raid on Oltman’s split-level house in southeast
Everett in May of 2016. On the upper level, officers found “a little bit” of crystalline
methamphetamine in the master bedroom.1 Three used pipes for
methamphetamine were in the master bathroom. They found a 16 gram bag of
methamphetamine inside Oltman’s office with a likely street value of $640. The
office also contained a digital scale that tested positive for traces of
methamphetamine, heroin, and marijuana. There were clean, empty baggies near
the scale. On the lower level, officers found a marijuana grow operation. The
State charged Oltman with one count of possession of methamphetamine with the
intent to manufacture or deliver.
Pretrial, Oltman moved to exclude evidence of the grow operation and of
electricity theft. The court denied the motion for the grow operation, reasoning it
was allowed under ER 404(b) as relevant evidence of a “larger enterprise,” and
granted the motion for electricity theft.2 The jury found Oltman guilty on the single
1Report of Proceedings RP (Oct. 31, 2018) at 207, 279 (drug lab technician
testimony confirming the powder found was meth).
2 Id. at 139.
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charge of possession of methamphetamine with the intent to manufacture or
deliver.
Oltman appeals.
ANALYSIS
Oltman argues retrial is required because he was prejudiced by the trial
court’s admission of testimony and photos of the marijuana grow operation. We
review a trial court’s interpretation of an evidentiary rule de novo.3 If the trial court
interpreted the rule correctly, we review its decision to admit or exclude evidence
for abuse of discretion.4
“ER 404(b) is a categorical bar to admission of evidence for the purpose of
proving a person’s character and showing that the person acted in conformity with
that character.”5 But character evidence can be admitted for any number of proper
purposes, such as showing the existence of a common scheme or plan or as
intent evidence.6 To admit character evidence, the trial court must
“(1) find by a preponderance of the evidence that the misconduct
occurred, (2) identify the purpose for which the evidence is sought to
be introduced, (3) determine whether the evidence is relevant to
3 State v. Gresham, 173 Wn.2d 405, 419, 269 P.3d 207 (2012) (quoting
State v. Foxhoven, 161 Wn.2d 168, 174, 163 P.3d 786 (2007)).
4 Id.5 Id. at 420.
6 Id. at 421; State v. Dillon, ___ Wn. App. 2d ___, 456 P.3d 1199, 1207
(2020).
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prove an element of the crime charged, and (4) weigh the probative
value against the prejudicial effect.”[7]
Oltman does not dispute that he had a marijuana grow operation in his house.
The State offered the evidence “to show that a drug distribution operation
was occurring within the home” because “it goes part and parcel [ ] with the drug
distribution operation that the substances found in the home are also found on
attendant paraphernalia that are used to distribute those substances” such as the
scale.8 The court reasoned Oltman’s general plan was the “delivery of substances
of . . . a chemical nature”9 and admitted the marijuana grow operation evidence
because it allowed an inference Oltman was running “a larger enterprise” and
intended to distribute various controlled substances, including
methamphetamine.10
A court may admit evidence of other acts under ER 404(b) as proof of
intent. The evidence must be relevant to the crime charged. It may not be
admitted “simply to prove the character of the accused in order to show that he or
she acted in conformity with it.”11
7
State v. Sage, 1 Wn. App. 2d 685, 699, 407 P.3d 359 (2017) (quoting
Gresham, 173 Wn.2d at 421).
8 RP (Oct. 31, 2018) at 136, 137.
9 Id. at 138.
10 Id. at 139.
11 State v. Thomas, 68 Wn. App. 268, 273, 843 P.2d 540 (1992).
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In State v. Thomas, this court upheld the conviction of Thomas for
possession of cocaine with intent to manufacture or deliver.12 The trial court
admitted evidence of three apparent drug sales by Thomas witnessed by police
officers outside a restaurant before they arrested him inside the restaurant. This
court recognized that the three apparent drug sales “logically relate[d] directly to
the material issue of what Thomas intended to do with the cocaine he possessed
when he was arrested.”13 Because the evidence was highly probative of what
Thomas intended to do with the cocaine and its probative value greatly
outweighed the prejudicial effect, the trial court properly admitted the evidence
consistent with ER 404(b).14
Here, the intent of Oltman to package and distribute the $640 worth of
methamphetamine in his possession was in dispute. The scales and the clean,
empty baggies next to it were relevant to his intent by showing he owned and used
the tools to divide larger quantities of drugs into measured amounts. Evidence of
Oltman’s intent to manufacture or distribute one controlled substance in his
possession, marijuana, logically related to his intent to distribute the other
controlled substance in his possession. On the record before us, the marijuana
grow operation was relevant to Oltman’s intent to carry out the manufacture and/or
12 68 Wn. App. 268, 843 P.2d 540 (1992).
13 Id. at 273.
14 Id. at 274.
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distribution of controlled substances. The court did not err by concluding
ER 404(b) allowed admission of the grow operation evidence.
Oltman argues the State did not prove the marijuana grow operation was
illegal and so was more prejudicial than probative. But a past act does not need to
have been illegal to be admissible as evidence of intent under ER 404(b).15 As the
State contends, Oltman’s “intent to deliver or manufacture marijuana was
interrelated and co-occurring with evidence of his plan to deliver marijuana.”16
This connection is particularly probative of his intent because the scale used to
weigh methamphetamine and divide it into smaller quantities was also used to
weigh marijuana, which is a controlled substance regardless of its legality. The
marijuana grow operation evidence was prejudicial, but “unfair prejudice,” not
mere prejudice, is the standard for exclusion.17 As discussed, the marijuana grow
operation and the drug-tainted scale were part of the relevant circumstances. The
circumstances showed a direct link between the methamphetamine and
marijuana. The jury could infer Oltman’s intent “‘as a logical probability from all the
facts and circumstances.’”18 The grow operation evidence was more probative of
15See State v. Johnson, 159 Wn. App. 766, 773, 247 P.3d 11 (2011)
(concluding ER 404(b) allowed as intent evidence a receipt showing a defendant’s
sale of 150 pounds of copper wire from the day before he was arrested for
allegedly stealing copper wire).
16 Resp’t’s Br. at 6.
17 ER 403.
18State v. Yarbrough, 151 Wn. App. 66, 87, 210 P.3d 1029 (2009) (quoting
State v. Wilson, 125 Wn.2d 212, 217, 883 P.2d 320 (1994)).
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Oltman’s intent to manufacture and distribute controlled substances than it was
prejudicial. The court did not abuse its discretion by admitting evidence of the
grow operation.
Oltman contends the prosecutor engaged in misconduct by arguing in
closing that the existence of the marijuana grow operation demonstrated his intent
to manufacture or distribute methamphetamine.
Oltman must demonstrate the prosecutor’s closing argument was both
improper and prejudicial.19 A prosecutor has “wide latitude” during closing
argument to argue reasonable inferences from the evidence.20 We review
allegedly improper arguments in the circumstances of the entire trial.21
Oltman relies on State v. Fisher.22 In Fisher, a stepfather was on trial for
sexually abusing his stepdaughter. The trial court properly allowed evidence of
the stepfather’s history of physically abusing his children but only for a limited
purpose and only then if the defense opened the door for it.23 But the prosecutor
brought up the history of physical abuse both in his opening argument and
repeatedly in his case in chief, violating the court’s ruling and depriving the
defendant of the decision on whether to open the door to that evidence. 24 And
19 State v. Fisher, 165 Wn.2d 727, 747, 202 P.3d 937 (2009).
20 Id.21 Id.22 165 Wn.2d 727, 733, 202 P.3d 937 (2009).
23 Id. at 734, 736.
24 Id. at 734-35, 747-48.
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during closing, the prosecutor again violated the court’s ruling by urging the jury to
rely on the defendant’s history of physical abuse to conclude he committed sexual
abuse.25 Because the prosecutor repeatedly violated the court’s pretrial ruling and
those violations introduced highly prejudicial evidence, the court ordered a retrial.26
Here, the prosecutor’s closing argument stayed within the scope of the
court’s pretrial ruling allowing the State to introduce testimony and photos of the
grow operation and evidence about the marijuana on the scale. It prohibited
pictures of “marijuana-related paraphernalia” only.27 In closing, the prosecutor
argued:
It is not a large, logical leap that a person who is conducting a
drug-trafficking business is doing so out of his office. It is also not a
large, logical leap that while doing so he is keeping his drug-dealing
supplies nearby. It’s also not a large, logical leap—and this is going
back to the marijuana grow [operation]—that he may be dealing in
multiple controlled substances. The digital scale was covered in
residue of two other drugs besides methamphetamine. Heroin. No
heroin was found in the house. And marijuana. Plenty of marijuana
was found in the house. Now, while the State is not asking you to
convict him of distributing or possessing with intent to distribute
marijuana or heroin, it is certainly indicative of a drug-dealing
operation occurring in that home.[28]
Unlike Fisher, the prosecutor here made arguments within the scope of the court’s
pretrial ruling. Although the prosecutor used the marijuana grow operation to
argue Oltman was distributing more than methamphetamine, the argument was a
25 Id. at 747-48.
26 Id. at 749.
27 RP (Oct. 31, 2018) at 139.
28 RP (Nov. 1, 2018) at 306-07.
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logical inference permitted by the evidence properly admitted by the trial court.
Because the prosecutor did not engage in misconduct by making arguments within
the scope of the court’s ruling, Oltman fails to demonstrate prosecutorial
misconduct occurred.
Therefore, we affirm.
WE CONCUR:
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