Opinion
Docket No. 31782
Filed March 9, 2007.
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Dennis E. Goff; Hon. Darla S. Williamson, District Judges.
Judgment of conviction for trafficking in a controlled substance and misdemeanor concealing a dangerous weapon, affirmed.
Westberg, McCabe Collins, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent.
This appeal requires that we decide whether evidence of a large amount of cash found in the defendant's automobile and evidence of his prior drug dealing was admissible in his trial for trafficking in methamphetamine.
I. FACTS AND PROCEDURE
John Sheldon was pulled over by a Boise police officer for failing to stop his vehicle as he emerged from an alley, and he subsequently consented to a search of the car for weapons. Officers found several concealed weapons (including brass knuckles and a nylon and fiberglass knife) giving them cause to arrest Sheldon. Searching his vehicle incident to the arrest the police further found nearly $7,000 in cash contained in Sheldon's wallet and in a day planner, and more than a pound of methamphetamine concealed under the backseat. Sheldon was later interviewed by a detective and admitted he knew what methamphetamine was, but claimed "he had no idea there was a pound of methamphetamine in his car." Sheldon further admitted that he had been involved in dealing methamphetamine in the past, but in smaller quantities than that found in his vehicle. He was charged with trafficking in methamphetamine by possession of more than 400 grams, Idaho Code § 37-2732B(a)(4), and concealing a dangerous weapon, I.C. § 18-3302(9). At trial, over Sheldon's objection, the district court admitted an officer's testimony about the quantity of cash found in Sheldon's car and the detective's testimony that Sheldon had admitted to prior methamphetamine dealing. The jury found him guilty of both charges. This appeal followed.
II. ANALYSIS
Sheldon contends the trial court erred in admitting evidence regarding the cash found in his vehicle and his acknowledgement of past methamphetamine dealing. He argues that both were inadmissible under Idaho Rule of Evidence 404(b) because they are evidence of his other bad acts used only to show criminal propensity and because the State did not provide notice of its intent to use this evidence at trial as required by that rule. Rule 404(b) disallows the admission of evidence of other "crimes, wrongs, or acts" to prove a person's character in order to show that he acted in conformity with that character. Thus, evidence of an accused's other crimes or misconduct may not be introduced just to show criminal propensity. See State v. Needs, 99 Idaho 883, 892, 591 P.2d 130, 139 (1979); State v. Winkler, 112 Idaho 917, 919, 736 P.2d 1371, 1373 (Ct.App. 1987). Such evidence may be admissible, however, for a purpose other than that prohibited by the rule. See State v. Avila, 137 Idaho 410, 412, 49 P.3d 1260, 1262 (Ct.App. 2002). In order for such evidence to be introduced, Rule 404(b) requires the prosecution to notify the defendant before trial, or during trial if the lack of prior notice is excused by the trial court, of the general nature of the evidence that the State intends to use.
Idaho Rule of Evidence 404(b) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that the prosecution in a criminal case shall file and serve notice reasonably in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.
A. The Cash Evidence
We first address the evidence of the large amount of cash found in Sheldon's vehicle the night of his arrest. We do not accept Sheldon's characterization of the challenged evidence as "other acts" evidence governed by 404(b). The presence of cash in Sheldon's vehicle, discovered contemporaneously with the methamphetamine, is not evidence of another crime, wrong or act of Sheldon. The cash is circumstantial, physical evidence implicating Sheldon in the crime he was charged with committing. As the State points out, evidence that Sheldon had contemporaneously possessed a scale, baggies, or ledgers (items normally associated with illegal drug transactions) would have been evidence of his knowing possession of the hidden methamphetamine, for which he was charged in this case, and a large amount of cash falls into the same category. The cash was relevant to show that Sheldon had the financial resources to purchase a large quantity of methamphetamine, like that found in his car. The district court did not err in overruling Sheldon's Rule 404(b) objection to this evidence.
If and to the extent that Sheldon argues that the evidence, even if not excluded by Rule 404(b), should have been excluded pursuant to I.R.E. 403, we again disagree. Rule 403 authorizes trial courts to exclude otherwise admissible evidence if its probative value is substantially outweighed by, among other things, unfair prejudice. Notably, I.R.E. 403 does not offer protection against evidence that is merely prejudicial in the sense of being detrimental to a party's case. State v. Carlson, 134 Idaho 389, 397, 3 P.3d 67, 75 (Ct.App. 2000); State v. Floyd, 125 Idaho 651, 654, 873 P.2d 905, 908 (Ct.App. 1994). Rather, it protects against evidence that is unfairly prejudicial because it tends to suggest decision on an improper basis. State v. Wood, 126 Idaho 241, 244-45, 880 P.2d 771, 774-75 (Ct.App. 1994). In Sheldon's case, we see nothing unfairly prejudicial about the evidence that officers found thousands of dollars in cash in the same vehicle where a large quantity of methamphetamine was hidden. This was significant evidence that Sheldon had access to large amounts of money that would have made it possible for him to acquire significant quantities of drugs. It is probative to show that the methamphetamine in the vehicle was his, and it does not imply a decision on an improper basis. B. Sheldon's Admission of Past Drug Dealing 1. Probative value and potential unfair prejudice
Sheldon also argues the district court erred in allowing the interrogating officer to testify about Sheldon's statement that he had dealt methamphetamine previously, but in smaller quantities. He asserts the district court erred in not analyzing this statement as 404(b) evidence and that the statement should have been excluded because it was impermissible character evidence and also because the State did not notify Sheldon that the statement would be offered at trial, as required by Rule 404(b).
The district court overruled Sheldon's Rule 404(b) objection, and referred to the evidence as simply an admission by Sheldon. Later in the proceedings, the district court appears to have acknowledged that some Rule 404(b) other acts evidence had been introduced, for the court gave a limiting jury instruction which said that such evidence may have been introduced and should not be considered to prove the defendant's character or to prove that the defendant has a disposition to commit crimes. The instruction concluded by admonishing that the evidence should only be utilized as it relates to the defendant's intent and knowledge.
We conclude the district court erred in initially failing to recognize the statement as 404(b) evidence. Evidence that Sheldon had previously sold methamphetamine is other crime evidence governed by I.R.E. 404(b). See State v. Dreier, 139 Idaho 246, 252-53, 76 P.3d 990, 996-97 (Ct.App. 2003) (Defendant's statements that he had previously carried drugs in a duffel bag and had used methamphetamine the day before police found drugs in the bag were subjected to a 404(b) analysis.); State v. Rodriguez, 118 Idaho 948, 950, 801 P.2d 1299, 1301 (Ct.App. 1990) (Evidence that a witness had previously tried to obtain drugs and sold drugs was analyzed under I.R.E. 404(b).); State v. Garza, 112 Idaho 778, 783-84, 735 P.2d 1089, 1094-95 (Ct.App 1987) (Evidence that defendant had previously sent substantial amounts of money to a known drug trafficker was analyzed under 404(b).).
On appeal, the State does not argue otherwise.
To be admissible, evidence of prior bad acts must first be relevant to a material disputed issue concerning the crime charged. State v. Moore, 120 Idaho 743, 745, 819 P.2d 1143, 1145 (1991); State v. Medina, 128 Idaho 19, 24, 909 P.2d 634, 642 (Ct.App. 1996). When evidence of an individual's other bad acts is proffered for any purpose other than to show bad character or propensity, such as to show "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident," it is not prohibited. I.R.E. 404(b). Whether evidence is relevant for a permissible purpose is an issue of law subject to our free review. State v. Atkinson, 124 Idaho 816, 819, 864 P.2d 654, 657 (Ct.App. 1993). Second, the probative value of the evidence must not be substantially outweighed by unfair prejudice. Id. The trial court's application of this balancing test is reviewed on appeal for an abuse of discretion. Id. Where, as in this case, the record does not reflect that the district court engaged in the requisite balancing analysis concerning 404(b) evidence, we must examine the record independently, without the benefit of the trial judge's reasoning. Garza, 112 Idaho at 784, 735 P.2d at 1095.
Although we agree with Sheldon's assertion that his admission of past drug dealing was subject to Rule 404(b) restrictions, we do not agree with his conclusion that it should have been excluded as impermissible character evidence. Sheldon's theory of defense was that he did not know that the methamphetamine was in his vehicle, just as he had asserted to officers at the time of his arrest. To prove Sheldon's guilt, the State bore the burden to show that he knew of the presence of the methamphetamine in his vehicle and that he had physical control of it, or had the power and intent to control it. State v. Blake, 133 Idaho 237, 242, 985 P.2d 117, 122 (1999); State v. Seitter, 127 Idaho 356, 360, 900 P.2d 1367, 1371 (1995). Sheldon's admission that he had been a methamphetamine dealer, albeit in smaller quantities, was relevant to prove his knowledge of the methamphetamine hidden in his vehicle. The quantity of methamphetamine was so large that it was not consistent with possession for individual use and indicated possession for purposes of sale. Evidence that Sheldon had been a drug dealer was relevant because it decreased the likelihood that he was accidentally, unknowingly or innocently in possession of the drugs.
This Court has previously upheld the admission of evidence of a defendant's other crimes in similar circumstances over a Rule 404(b) objection. In Garza, the defendant was charged with possession of more than three ounces of marijuana and his defense at trial was that he had no knowledge of the significant quantity of marijuana found in his home. We held that evidence that the defendant had previously sent substantial amounts of money to a known drug trafficker "was plainly relevant to show his knowledge of and intent to possess the marijuana found in the residence which he cohabited with his wife." Garza, 112 Idaho at 784, 735 P.2d at 1095. Similarly, in State v. Gauna, 117 Idaho 83, 785 P.2d 647 (Ct.App. 1989), the defendant was charged with possession of marijuana with intent to deliver, and the defendant's theory of defense was that the marijuana belonged to a woman that was at his residence at the time of his arrest. This Court held that evidence of the defendant's prior drug transactions was relevant to show that the defendant possessed the drugs and/or his intent to deliver. Id. at 87, 785 P.2d at 671.
Another similar case is Dreier, where officers questioning the defendant asked whether his gym bag contained controlled substances such as methamphetamine. Dreier responded that he hoped there was no methamphetamine in the bag but admitted that he had carried methamphetamine in the bag in the past. Officers subsequently found controlled substances in the bag. At trial, the district court permitted evidence of Dreier's acknowledgment that he had previously carried methamphetamine in the bag. This Court held that Dreier's admission "was relevant to both his knowledge of whether the substance found in the gym bag was methamphetamine and to his knowledge of possession of the substance." Id. at 253, 76 P.3d at 997. Indeed, we said that this evidence "was highly probative to show that the methamphetamine found in the gym bag belonged to Dreier and that he knowingly possessed it." Id. See also United States v. Vo, 413 F.3d 1010, 1017-19 (9th Cir. 2005) (Where defendant was charged with conspiracy and abetting possession of methamphetamine with intent to distribute, evidence that he was convicted in 1989 of two counts of selling cocaine was admissible as tending to show that he was familiar with distribution of illegal drugs and that his actions in this case were not an accident or mistake.); United States v. Bowie, 232 F.3d 923, 930 (D.C. Cir. 2000) (Evidence that defendant was in possession of counterfeit bills in uncharged incident on April 17 was admissible to show that he was knowingly in possession of counterfeit bills found in his car on May 16.); United States v. Wood, 924 F.2d 399, 401 (1st Cir. 1991) (Where defendant was charged with conspiracy and with aiding and abetting possession with intent to distribute cocaine, evidence that he was involved in prior drug transactions was admissible because defendant contended that he was uninvolved in wife's drug dealing business and the evidence was relevant to show his knowing participation in the charged scheme.); United States v. Martino, 759 F.2d 998, 1005 (2d Cir. 1985) (Where defendant was charged with conspiracy to distribute and possession with intent to distribute heroin and defendant denied knowledge or intent regarding transaction, evidence of his eleven-year-old narcotics conviction was admissible to show knowledge and intent.); United States v. Sinn, 622 F.2d 415, 416 (8th Cir. 1980) (Where defendant who was charged with possession of cocaine with intent to distribute and knowingly importing cocaine denied knowing the cocaine was in the camera case, evidence that he had previously been in possession of cocaine during an illegal buy-and-sell transaction was relevant to intent or knowledge.); United States v. Rocha, 553 F.2d 615, 616 (9th Cir. 1977) (Where defendant was charged with possession of marijuana with intent to distribute after 231 pounds of marijuana was found in a van he was driving, evidence of defendant's prior arrest and acquittal for transportation of marijuana in an almost identical circumstance was admissible to show that he knew about the marijuana in the present case and had an illegal intent.).
Here, Sheldon's admission to a detective that he had been involved in dealing methamphetamine in the past but in smaller quantities, made it more likely that he had knowledge of the concealed methamphetamine in his car. The admission shows that Sheldon had been engaged in a drug dealing enterprise and, when combined with the discovery of methamphetamine and a large quantity of cash in his car, contributed to an inference that the enterprise was ongoing and that the hidden methamphetamine was a part of that enterprise well within Sheldon's knowledge.
The next question is whether the probative value of this evidence was substantially outweighed by the risk of unfair prejudice. This is a close question, and is further complicated by the fact that the district court, in failing to recognize the evidence as subject to Rule 404(b), did not make this determination. The risk of unfair prejudice to a criminal defendant in this circumstance is apparent and cannot be summarily dismissed. Nevertheless, the same risk is present in most cases where other bad act evidence is admitted for its legitimate relevance to an issue in the case. But just as the potential for unfair prejudice should not be trivialized, neither should a court lightly discard evidence that is directly relevant to an element of the case upon which the State bears the burden of proof. As we stated in State v. Nichols, 124 Idaho 651, 656, 862 P.2d 343, 348 (Ct.App. 1993):
The state in a criminal trial bears a heavy burden to prove the defendant's guilt "beyond a reasonable doubt." If probative evidence on one of the elements of the crime is excluded, and an acquittal ensues, the state is given no second chance through a retrial or any opportunity to reverse the acquittal by challenging the trial court's evidentiary ruling on appeal. I.A.R. 11(c)(4).
Here, in light of Sheldon's assertion that he was unaware of the presence of methamphetamine in his own vehicle, the challenged evidence was particularly probative. Moreover, the evidence consisted of Sheldon's own statement, rather than independent extrinsic evidence, and the State did not present the evidence in a way that increased its prejudicial impact. It would have been within the trial court's discretion to exclude this evidence due to its potential for such prejudice. Nevertheless, we cannot say that its probative value was significantly outweighed by the risk of unfair prejudice so as to make its admission error.
By this opinion we do not hold or imply that whenever a defendant is tried for possession of a controlled substance, evidence that the defendant previously possessed or dealt with a controlled substance will be admissible under I.R.E. 404(b) to prove knowledge of its presence or control. Such evidence is always subject to the limitations of I.R.E. 403, and the balancing to be conducted under that rule will turn upon the circumstances of each case. The trial courts have broad authority to refuse admission of such evidence when warranted by the risk of unfair prejudice to the defendant.
2. Notice requirement of Rule 404(b)
Finally, we must consider Sheldon's argument that the evidence of his prior drug dealing should have been excluded for lack of notice. Rule 404(b) specifies that other acts evidence is admissible if offered for a permissible purpose, " provided that the prosecution in a criminal case shall file and serve notice reasonably in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial." (Emphasis added.)
The consequences of the State not providing notice under the rule has not yet been addressed by Idaho appellate courts, although our Supreme Court has expressed disapproval of a prosecutor's failure to provide the notice, calling it "inexcusable" before declining to rule on the merits as the issue was not preserved for appeal. State v. Cannady, 137 Idaho 67, 72, 44 P.3d 1122, 1127 (2002). Given that I.R.E. 404(b) is very similar to its federal counterpart, we turn to federal authority addressing the absence of notice in such situations. See State v. Jones, 140 Idaho 41, 50, 89 P.3d 881, 890 (Ct.App. 2003) (utilizing 1991 amendment committee notes to define the specificity required in 404(b) notice). The federal advisory committee notes regarding the 1991 amendment that added the notice requirement to Federal Rule of Evidence 404(b) indicate the provision was intended "to reduce surprise and promote early resolution on the issue of admissibility." The comments point out that "since the notice requirement serves as a condition precedent to admissibility of 404(b) evidence, the offered evidence is inadmissible if the court decides that the notice requirement has not been met." In United States v. Vega, 188 F.3d 1150 (9th Cir. 1999), the Ninth Circuit Court of Appeals considered whether the government was entitled to introduce evidence of certain prior acts despite a lack of notice. There, the defendant was arrested with almost ninety pounds of marijuana in a van she was driving from Mexico to the United States. Vega lodged a pretrial request for all "other acts" evidence that the government intended to use at trial, and the government identified none. Later, the government introduced, over Vega's objection, evidence of her prior border crossings and bank deposits. After deciding that the acts, although not intrinsically improper, constituted "other act" evidence under Fed.R.Evid. 404(b), the Ninth Circuit held it was an abuse of discretion for the district court to admit the evidence in view of the government's failure to give the requisite notice. Id. at 1154-55. Idaho Rule of Evidence 404(b) likewise makes notice from the prosecution a condition precedent to the admissibility of the evidence.
Federal Rule of Evidence 404(b) differs from I.R.E. 404(b) in that it requires the defendant to request notice in order to trigger the notice requirement, while I.R.E. 404(b) obligates the State to give notice even without request.
Although the State acknowledges that no express notice was given of the prosecution's intent to place Sheldon's admission of prior drug dealing into evidence, it argues that he nevertheless was sufficiently on notice of this evidence from police reports that were made available to the defense. Thus, the State contends that notice of the prosecution's intent to introduce such evidence is not required and that mere notice of the existence of any feasible Rule 404(b) evidence is sufficient to satisfy the notice requirement. We disagree. A criminal defendant may have knowledge of a multitude of "other bad acts" in his personal history, some of which may appear in police reports, but the defendant will not be aware of a need to challenge the admissibility of the evidence in limine or to counter that evidence at trial unless the prosecution has given notice that it will be proffered. The State's argument contravenes the purpose of the notice provision to reduce surprise and permit pretrial resolution on the issue of admissibility. It also contravenes the very language of the rule, which requires that the prosecution "file and serve" the notice. Because the State did not comply with the Rule 404(b) notice requirement, the evidence of Sheldon's prior drug dealing was inadmissible.
The State also relies on our decision in Jones, 140 Idaho 41, 89 P.3d 881, to support its argument that because Sheldon had knowledge of the "general nature" of the prior acts the State intended to introduce at trial, its notice was sufficient. Jones addressed the specificity required of the notice, not the consequence when notice has not been given at all. Thus, Jones is not relevant to our inquiry here.
Our final query is whether this error necessitates a new trial for Sheldon. Idaho Criminal Rule 52 provides that "[a]ny error, defect, irregularity or variance which does not affect substantial rights shall be disregarded." Therefore, a new trial is unnecessary if the error was harmless. State v. Scovell, 136 Idaho 587, 593, 38 P.3d 625, 631 (Ct.App. 2001). Because the error here stemmed only from the lack of notice, and the evidence was otherwise admissible, our harmless error analysis focuses on whether there was prejudice from the absence of notice, not prejudice from the content of the evidence.
In Vega, the Ninth Circuit concluded that the admission of 404(b) evidence for which the government had not given notice was not harmless error, reasoning as follows:
The government's failure to give Vega notice of the 404(b) evidence prejudiced Vega in that her trial strategy could not adequately address other acts evidence since she did not know it would be introduced. Vega was not able to investigate the other acts evidence that the government intended to use, nor could she prepare for cross examination of the rebuttal witnesses. Instead of giving Vega notice, as required by Rule 404(b), the government lay in wait and sprung the "other acts" evidence on her in its so-called rebuttal case.Id. at 1155. No similar prejudice occurred here. While the "other acts" evidence in Vega, as in many 404(b) cases, originated from an outside source, in this case it was Sheldon himself who provided the police with the information. He was fully aware that evidence of his statement existed, and that the State had access to it. In order to respond to this evidence of his own admission, he did not need to conduct an investigation, find and interview other witnesses, or prepare to cross-examine them. Sheldon has identified no steps he was unable to take to counter this evidence that he would have been able to take had he been given pretrial notice. As there is no discernable prejudice arising from the State's failure to give timely notice of its intent to use the evidence, and since the evidence was otherwise admissible, we conclude that the district court's error in admitting the evidence despite the State's noncompliance with the notice requirement was harmless error.
Sheldon testified at trial and denied ever making the statement.
III. CONCLUSION
The evidence of a large amount of cash found in Sheldon's vehicle was not "other act" evidence subject to I.R.E. 404(b) and was properly admitted. Evidence that Sheldon admitted to having dealt methamphetamine in the past was relevant to show his knowledge of the presence of methamphetamine hidden in his vehicle, and its probative effect was not substantially outweighed by unfair prejudice. This admission nevertheless should have been excluded because the State failed to provide notice of its intent to introduce the evidence as required by I.R.E. 404(b). Because Sheldon has shown no prejudice arising from the failure of notice, however, we conclude that this error was harmless. Accordingly, the judgment of conviction is affirmed.
Judge Pro Tem SCHWARTZMAN CONCURS IN THE RESULT.
Judge GUTIERREZ CONCURRING IN PART AND DISSENTING IN PART
I concur with the majority's opinion that admission of the cash evidence was not error. However, I respectfully dissent from the majority's conclusion that Sheldon's statement regarding his past drug dealing constitutes relevant evidence under Idaho Rule of Evidence 404(b) and that the probative value of such evidence was not substantially outweighed by the risk of unfair prejudice.
In regards to the relevance inquiry, the pivotal issue is whether Sheldon's admission is relevant, under I.R.E. 404(b), to his knowledge the methamphetamine was in his car. The general thrust of the case law in this area is that prior acts of involvement with drugs are ordinarily admissible for this purpose. See United States v. Vo, 413 F.3d 1010, 1018 (9th Cir. 2005) ("We have consistently held that evidence of a defendant's prior possession or sale of narcotics is relevant under Rule 404(b) to issues of . . . knowledge . . . in prosecution for possession of, importation of, and intent to distribute narcotics."). However, the case law also makes clear that this avenue for admission of such evidence is not wide open. Rather, context is important; in order to avoid treading impermissibly into propensity, there must be a logical basis from which to infer, from the prior act, the knowledge actually at issue in the later crime.
Most of the following cases were decided in the context of Federal Rule of Evidence 404(b). Idaho Rule of Evidence 404(b) does not differ in any substantive manner from its federal counterpart.
For instance, in United States v. Mayans, 17 F.3d 1174, 1183 (9th Cir. 1994), the Ninth Circuit Court of Appeals explicitly noted that when attempting to introduce prior acts evidence in drug cases, the government bears the burden of proving a logical connection between appellant's purported involvement in the previous drug deal and a material fact at issue in the crime with which he was charged. In that case, a group of suspects were arrested inside an apartment in the act of consummating a drug deal. The defendant, whose family owned the apartment, was then charged with involvement in the trafficking operation after he was arrested later that day driving up and down the street in front of the residence. To prove the defendant's knowledge and intent regarding the operation, the government sought to introduce the testimony of several of those arrested inside the apartment as to their prior drug deals with the defendant. However, the Mayans Court held that without further elaboration, the mere fact the defendant had allegedly made prior drug deals with his co-defendants did not show that his purported past wrongdoing put him on notice that drugs were present at the apartment owned by his family or that drug deals were being made that day. Id.
The Fifth Circuit took a similar stance in United States v. McDonald, 905 F.2d 871, 875 (5th Cir. 1990), excluding evidence of the defendant's past drug use where the defendant had been charged with smuggling drugs. After McDonald was arrested attempting to cross the United States-Mexico border with seventy pounds of marijuana in his gas tank, he claimed to have been ignorant the drugs were there. To prove the defendant had knowingly possessed the drugs, the prosecution elicited in cross examination that McDonald had previously used speed and cocaine. The appellate court found the admission to be error, concluding there was an impermissibly "large leap" from evidence that McDonald had used drugs in the past to an inference that he therefore likely knew his car contained marijuana that day. Id.
In United States v. Hernandez-Miranda, 601 F.2d 1104, 1108 (9th Cir. 1979), the defendant had been arrested at a port of entry between Mexico and California after a customs inspector found hidden bags of heroin and cutting agent in his vehicle. When Hernandez-Miranda claimed that he just purchased the car and did not know the drugs were present, the government introduced evidence that three years prior, he had been convicted for backpacking marijuana into the United States. However, the appellate court held, given that the only similarity between the incidents was that Hernandez-Miranda was smuggling drugs across the border, there was no logical reason to infer from his past acts of smuggling marijuana in a backpack that he had knowledge of the presence of heroin in his vehicle. Id.
Finally, in State v. Coca, 341 N.W.2d 606, 610 (Neb. 1983), the defendant was pulled over and a subsequent search of the vehicle revealed marijuana in bags hidden behind the driver's seat and the front passenger seat. To prove Coca knew the marijuana was in his car, the state introduced evidence that two months prior to the arrest, Coca and another party had been discovered harvesting marijuana at another location in town. The appellate court, however, concluded evidence of the prior act was inadmissible, emphasizing that the fact Coca had been involved in a prior harvesting scheme did not make it more likely he knew the marijuana was behind the seat of his vehicle when he was pulled over. The important question concerning Coca's knowledge in the case was whether he knew the marijuana was in the car at the time of his arrest. Id.
Similarly, in this case, there is no logical reason to infer, aside from resorting to impermissible propensity, that because Sheldon had admitted to dealing drugs in the past, he was more likely to know of the presence of methamphetamine in his vehicle. Sheldon's defense was limited to him having no knowledge of the methamphetamine found hidden in his vehicle. Thus, evidence of his specific past involvement in dealing methamphetamine did not serve to rebut a "no knowledge" claim. Unlike the typical case, the record here was not developed with any specifics as to the prior acts to show any connection to the issue of knowledge in the present case, due in large part because the district court ruled Sheldon's statement would come in as an admission. The absence of a logical basis from which the jury could infer from the prior act that Sheldon had knowledge of the hidden methamphetamine opens the door too wide and endangers the efficacy of the general rule disallowing the use of prior acts to prove present guilt.
Even where the extrinsic offense evidence is relevant to a material issue at trial, the probative force of the evidence may be substantially outweighed by an inherent potential for prejudice. State v. Winkler, 112 Idaho 917, 920, 736 P.2d 1371, 1374 (Ct.App. 1987). In State v. Wood, 126 Idaho 241, 244-45, 880 P.2d 771, 774-75 (Ct.App. 1994), this Court discussed the intrinsic dangers of propensity evidence:
The policy expressed in Rule 404, precluding the use of character evidence or other misconduct evidence to suggest that the defendant must have acted consistently with those past acts or traits, is a long-standing element of American law. It is part of our jurisprudential tradition that an accused may be convicted based only upon proof that he committed the crime with which he is charged — not based upon poor character or uncharged sins of the past. The rule against use of other misconduct evidence to suggest that the defendant had a propensity to commit crimes of the type charged recognizes that such evidence may have too-powerful influence on the jurors, and may lead them to determine guilt based upon either a surmise that if the defendant did it before, he must have done it this time, or a belief that it matters little whether the defendant committed the charged crime because he deserves to be punished in any event for other transgressions. See, e.g., Michelson v. U.S., 335 U.S. 469, 475-76 (1948) ("The inquiry is not rejected because character is irrelevant; on the contrary, it is said to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge."); U.S. v. Avarello, 592 P.2d 1339, 1346 (5th Cir. 1979) ("The danger inherent in evidence of prior convictions is that juries may convict a defendant because he is a `bad man' rather than because evidence of a crime of which he is charged has proved him guilty."); State v. Wrenn, 99 Idaho 506, 510, 584 P.2d 1231, 1235 (1978) (The prejudicial effect of such testimony is that it induces the jury to believe the accused is more likely to have committed the crime on trial because he is a man of criminal character. It, therefore, takes the jury away from their primary consideration of guilt or innocence of the particular crime on trial."). The United States Court of Appeals for the District of Columbia Circuit has observed that:
The exclusion of other crimes evidence is not simply a "technicality" designed to prevent law enforcement personnel from doing their job; it reflects and gives meaning to the central precept of our system of criminal justice, the presumption of innocence.United States v. Daniels, 770 F.2d 1111, 1118 (D.C. Cir. 1985). Wood, 126 Idaho at 244-45, 880 P.2d at 774-75.
This case presents an instance where the danger of propensity evidence is on full display. Planted in the jury's mind was the fact that Sheldon was an admitted drug dealer, giving rise to a significant possibility the jury would be more likely to believe he was involved in the drug offense charged here and/or to use this trial as a vehicle to punish him for his past uncharged acts — exactly the unacceptable influences against which I.R.E. 404(b) is designed to protect.
Also in Wood, this Court discussed several studies bearing out the perception that jurors are apt to be heavily influenced by propensity evidence. We noted that a study of over 3,500 jury trials showed that juries acquitted in forty-two percent of the cases where they were informed the accused had no prior convictions but acquitted in only twenty-five percent of cases where they were not presented with such information. 126 Idaho at 245 n. 5, 880 P.2d at 775 n. 5. I am convinced there was an especially high risk of the phenomenon manifesting itself in the instant case. One cannot ignore that our society wages an ever-increasing "war on drugs" by utilizing aggressive media campaigns and enacting tougher laws. The campaign has succeeded, at least in the mainstream, in vilifying illegal drug use and distribution, and properly so. Consequently, it cannot be discounted that the typical juror sitting in judgment of Sheldon would have approached his or her task from this perspective, and it is with this in mind that I cannot in good conscience discount the influence such highly incriminating character evidence may have had on the verdict.
In addition, the admission's probative value for any purpose other than propensity was decidedly diminished. As discussed above, there was no evidence on the record of a permissible link between Sheldon's admission of past dealing and his knowledge that methamphetamine was in his vehicle. Without any elaboration on the prior act evidence, the extent of its probative value is that Sheldon is familiar with methamphetamine. Thus, in light of the danger of unfair prejudice and its substantially subordinate probative value, I would hold it was erroneous to admit the statement.
I would further conclude the error was not harmless. Without the inclusion of Sheldon's incriminating statement, the state's case consisted largely of physical evidence found in Sheldon's car: the drugs, the large amount of cash, and the weapons. However, in support of his contention that he did not know the drugs were in his vehicle, Sheldon testified he had lent the vehicle to a friend, Dan Heiderman, the day before. Then, mere minutes before he was stopped, he had parked the vehicle in front of a house where Heiderman was present, and Heiderman had gone out to the car looking for cigarettes and was absent from the residence for approximately ten to fifteen minutes. Sheldon also testified that he had a legitimate business purpose, related to his shop which sold motorcycles and corresponding inventory, for carrying such a large amount of cash. In addition, the weapons found in the vehicle — brass knuckles and a nylon and fiberglass knife — are not the type typically associated with drug enterprises; thus, they fail to carry special significance in terms of establishing Sheldon was knowingly harboring methamphetamine. See State v. Pierce, 137 Idaho 296, 299-300, 47 P.3d 1266, 1269-70 (Ct.App. 2002) (recognizing the propensity of persons engaged in selling narcotics to carry firearms). See also United States v. Sakyi, 160 F.3d 164, 169 (4th Cir. 1998) ("[T]he indisputable nexus between drugs and guns presumptively creates a reasonable suspicion of danger to the officer." (emphasis added)).
Finally, I am not persuaded the weak rendition of a limiting instruction where the court stated there may have been an admission of character evidence was sufficient to mitigate the evidence's dangerous effect. See State v. Guinn, 114 Idaho 30, 34, 752 P.2d 632, 636 (Ct.App. 1988) (noting that the danger a jury will convict a defendant solely upon a belief that the defendant is a person of criminal character is "not easily cured by an instruction"). Consequently, I cannot say, beyond a reasonable doubt, the jury would have convicted Sheldon of trafficking absent the error, and would hold the erroneous admission of Sheldon's prior statement of dealing methamphetamine necessitates a new trial.