State v. Clark

STATE OF WASHINGTON, Respondent, v. JAMES WALTER CLARK, Appellant.

No. 53255-7-II

Court of Appeals of Washington, Division 2

January 5, 2021

UNPUBLISHED OPINION

GLASGOW, J.

Officers executed two search warrants involving James Walter Clark. At his home and in his car, officers found various evidence that Clark was selling methamphetamine, including texts on a cell phone. Clark was tried on charges of possession with intent to deliver methamphetamine, second degree possession of stolen property, and bail jumping. The jury found Clark guilty of possession with intent to deliver methamphetamine and bail jumping, but not possession of stolen property.

Clark appeals his convictions. He argues that the trial court abused its discretion by admitting text messages without sufficient authentication. He also contends that the to convict jury instruction for bail jumping was insufficient and violated his right to due process. Finally, Clark claims the trial court erroneously excluded evidence that he appeared for a hearing subsequent to his failure to appear.

We conclude that the State presented sufficient evidence to authenticate the admitted text messages. Any error in the jury instruction was harmless, and the trial court did not err by excluding evidence of Clark's subsequent court appearance.

Clark filed a statement of additional grounds (SAG), but none of the arguments raised in Clark's SAG merits reversal.

We affirm Clark's convictions.

FACTS

I. Investigation and Search Warrants

Officers from the Vancouver Police Department obtained a warrant to search Clark's home and person for evidence of possession with intent to deliver methamphetamine and heroin. The affidavit in support of the warrant identified Clark as "James 'Jim' Walter Clark." Clerk's Papers (CP) at 35.

While officers were watching Clark's home, they saw a person who appeared to be Clark leave in a car with two or three other people. Officers stopped the car for speeding and because the warrant authorized a search of Clark's person. Clark was driving, and he told officers that the car belonged to him. Officers saw a bag of "white substance" in the front driver-side door, and a trained K-9 alerted in that area. CP at 48. Officers then seized the car pending an application for a warrant to search it. A cellular phone remained on the front passenger seat. Clark's son, Zachary Haedike, had been in the vehicle and asked to retrieve the phone, but officers denied this request. Haedike identified the cell phone as his father's.

The officers and Clark then returned to Clark's home, and officers conducted an extensive search of the property. They recovered methamphetamine, multiple scales, baggies, and other drug paraphernalia. During the search, officers retrieved a safe from an upstairs bedroom closet. When Detective Zachary Ripp showed the safe to Clark, Clark said he "couldn't remember where the key was." 1 Verbatim Report of Proceedings (VRP) at 175. So, detectives used a pry bar to open the safe. Ripp later explained "Our first procedure is to try to open [the safe] without damaging something and because there was no key, we had to damage it to open it up." 1 VRP at 176. The safe contained methamphetamine and documents with Clark's name on them.

Officers then obtained a warrant to search Clark's car. The affidavit in support of the warrant requested a search of the vehicle for evidence of possession of controlled substances related contraband, and any fruits of crime. This included cellular phones and text messages. Officers recovered a bag with "crystal like substance," a "glass smoking device," and the cell phone that had been left on the front passenger seat. 2 VRP at 239.

The State originally charged Clark with possession with intent to deliver methamphetamine, possession of heroin, second degree possession of stolen property, and third degree possession of stolen property. Before trial, the State dismissed the charges of possession of heroin and third degree possession of stolen property.

II. Failure to Appear

An omnibus hearing was scheduled for May 15, 2018. Clark was present in the courtroom on April 19, 2018 when the trial court scheduled the omnibus hearing, and he left the courtroom with a scheduling order in his hand. The scheduling order listed all upcoming required court appearances, including the omnibus hearing on May 15, 2018.

Clark's required court appearances were not listed chronologically on the court's scheduling order. Although the omnibus hearing was Clark's next required appearance, it was listed third on the order that Clark received.

It is undisputed that Clark failed to appear at the omnibus hearing on May 15, 2018. Clark did appear at the following required court appearance, the readiness hearing on June 7, 2018. The readiness hearing was listed first on Clark's scheduling order.

The State filed an amended information adding a charge of bail jumping on a class B or C felony.

III. Pretrial Motions in Limine

Clark filed a motion in limine to exclude any text messages from the cell phone that was recovered from the front passenger seat of his car, arguing the State could not authenticate the messages as required by ER 901. The State responded that the phone was located within Clark's car and Clark's son had identified the phone as belonging to Clark. The State also argued that the contents of the phone would support its authentication because "Facebook, Google Drive, and Google Photo accounts on the phone were linked to 'James Clark, '" the e-mail address on the phone contained "jamesclark," and "several messages on the phone [were] addressed to 'Jim' and the sender refers to himself as 'Jim' on other occasions." CP at 31. The trial court denied Clark's motion, holding the State's evidence was sufficient to present the messages to the jury and Clark's objection went to the weight of the text messages as evidence, rather than to their admissibility.

The State filed a motion in limine to exclude any evidence regarding Clark's subsequent appearance in court after his failure to appear on May 15, 2018. The State argued this evidence was irrelevant and inadmissible under ER 401 and 402. The State explained that it needed to prove "the defendant had knowledge he was required to appear on May 15, 2018 and that he failed to do so," and Clark's "subsequent reappearance in court does not prove or disprove any of those elements." CP at 57. Further, the State contended that even if the evidence of Clark's subsequent appearance were relevant, it was still inadmissible under ER 403 because "any remedial measures taken by the defendant after his failure to appear can only serve the purpose of eliciting sympathy and muddying the waters around the actual issue at trial: that he failed to appear on a specific date." CP at 58.

Clark's defense to the charge of bail jumping was that the scheduling order was confusing, the court dates were not listed chronologically, and Clark appeared on the date listed first. Therefore, according to Clark, evidence of his later appearance showed that he did not knowingly fail to appear; he was just confused about his court dates. The trial court granted the State's motion and informed Clark that he could still argue his defense theory without presenting evidence of a subsequent appearance.

IV. Trial

At trial, Ripp testified about the contents of the cell phone that was recovered from the front passenger seat of Clark's car. Ripp identified himself as a "certified [cellebrite] operator and certified [cellebrite] physical analyst," which he explained means he "extract[s] data from cell[]phones." 2 VRP at 261. Ripp testified that he located "multiple accounts in the name of James Clark" on the phone and an e-mail address "associated with James Clark." 2 VRP at 263.

Ripp also took photographs of text messages from the phone. There were text messages with contacts identified as "Zach SON" and "Zach's Girlfriend." Ex. 68. There were also several received text messages with an introduction of "hey Jim" or "good morning, Jim" and one sent text stating, "[T]his is Jim." 2 VRP at 279, 282, 289, 300. Ripp testified, "[W]e knew that James Clark also went by the name Jim." 2 VRP at 289. One message referenced a meeting place "right down the street from [Clark's] residence," and another referenced a meeting place "a few blocks away from the residence." 2 VRP at 277, 282.

To undermine the reliability of the text messages as evidence against Clark, Clark's caregiver testified that Clark's son, Haedike, who had been in the vehicle during the traffic stop, used Clark's phone "quite a bit." 2 VRP at 341. She told the jury that Haedike would borrow his father's phone and sometimes take it with him when he left the house.

To prove Clark had knowledge of his May 15, 2018 omnibus hearing, the State played a video recording showing Clark in the courtroom when the judge asked, "[H]ow about May 15^th at 1:30?" 2 VRP at 323. It also showed Clark walking out of the courtroom with a scheduling order in his hand. The prosecuting attorney who handled the docket that day testified that she wrote all of Clark's required court appearances on the scheduling order, including the date for the omnibus hearing. The order was admitted into evidence. On cross-examination, defense counsel clarified, "So, the way that the Court listed them orally, the dates were actually in reverse order, correct? . . . And then on the form that is given to the parties, isn't it true that the dates are not listed in sequential order?" 2 VRP at 328. The prosecuting attorney confirmed this.

The jury was instructed that to find Clark guilty of bail jumping, they had to find beyond a reasonable doubt that Clark failed to appear on May 15,...