State Of Washington, Respondent/cr App V. James L. Dixon, Appellant/cr Respondent

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON , 	)
) 	No. 69629-7-1
Respondent, 	)
) 	DIVISION ONE
V. 	) 	o
) 	UNPUBLISHED OPIN©N ^4g
JAMES LEON DIXON, 	) 	£ 	~»3
) 	5 	0°-*,
Appellant. 	) 	FILED: January 13,2014 	3^p
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Appelwick, 	J. 	— During 	Dixon's 	trial 	for 	possession 	of 	control^! 	%<s>—SO
to 	3 <£
substances, the court admitted evidence that he also possessed over $1,200^ 	"••-
cash when he possessed the controlled substances. 	The court did not abuse its
discretion in admitting that evidence. 	Dixon did not preserve his challenge to a
witness' reference to a motion to seize the cash as "unlawful drug 	proceeds."
We affirm his conviction for possession of a controlled substance.
FACTS
On May 3, 2012, undercover police officers patrolling an area in downtown
Everett known for drug trafficking saw James Dixon on the sidewalk. The officers
knew Dixon was 	prohibited from 	being in that area and called for uniformed
officers 	to 	assist. 	Everett 	Police 	Officer 	Michael 	Drake 	and 	his 	partner
responded 	and 	approached 	Dixon, 	who they knew from 	a prior encounter.1
When Dixon saw the officers, he shuffled his feet as if he was preparing to flee in
the opposite direction. 	Officer Drake told him to stop. 	Dixon then turned and
walked toward Officer Drake and a garbage can. 	Officer Drake drew his firearm
1 The officers were aware that Dixon was on community custody with a
condition requiring him to stay out of drug areas, but the jury was simply told the
police had a lawful reason to contact him.

No. 69629-7-1/2
and again told Dixon to stop and to move away from the garbage can. 	Officer
Drake saw Dixon drop a small light colored object from a clenched hand into the
garbage can. 	On cross-examination, he conceded that his written report stated
that Dixon opened his hand, but did not state that something fell out of it.
The 	officers 	then 	detained 	and 	handcuffed 	Dixon. 	Officer 	Duane
Wantland, who observed the incident from across the street, approached and
removed the lid from the garbage can. 	He "pretty quickly" found a baggie that
appeared to contain a controlled substance. 	About a minute later, he found a
different 	kind 	of 	baggie 	containing 	a 	different 	substance. 	Field 	tests 	and
subsequent forensic tests showed that the substances were methamphetamine
and cocaine. 	During a search incident to Dixon's arrest, the officers found a cell
phone and $1,255 in cash on his person.
The 	State charged 	Dixon with 	possession 	of 	a 	controlled 	substance,
"cocaine and methamphetamine." 	Prior to trial, the court granted Dixon's motion
to exclude any evidence of other convictions, infractions, or bad acts. 	The court
denied Dixon's motion to prohibit testimony about the cell phone and cash found
on his person. 	Dixon argued that the evidence was not relevant and was highly
prejudicial, because it painted him as "a criminal person." 	The State countered
that the evidence was relevant to the possession charge because it showed drug
activity connected to possession of drugs. 	The court concluded the evidence
was more probative than prejudicial.
At trial, the court admitted the baggies and Dixon's cell phone as exhibits.
The cash, however, was not offered into evidence. 	In an attempt to explain its
2

No. 69629-7-1/3
absence, the prosecutor asked Officer Wantland why the cash had not been in
the evidence room with the other items. 	Defense counsel objected on relevance
grounds. 	Following an offer of proof in which the prosecutor showed the court
and counsel a "notice of seizure and intended forfeiture regarding the money,"
the court overruled the objection. 	Officer Wantland then explained that
the currency was seized -- or moved to seize for unlawful drug
proceeds. 	When that happens, that money is taken by the property
room and usually put into a bank account so it's drawing interest
until that seizure. 	It's a civil case, that seizure of drug proceeds is.
And 	so once that's completed 	... 	it is 	in an 	interest-bearing
account instead of sitting stagnant in the property room.
(Emphasis added.) 	Defense counsel did not object to the witness' references to
unlawful drug proceeds.
In closing argument, defense counsel argued in part as follows:
Now, they also didn't find any paraphernalia on Mr. Dixon or
in the trash can. 	Why is that important? Well, we talked about this
actually in voir dire. 	Somebody had 	mentioned 	- 	actually the
prosecutor brought this up, what's common for people to use drugs,
what they may have on them, what they don't have on them, and
somebody had commented that it's common for somebody who
used drugs will have some type of apparatus to use those drugs
with. 	Now, there weren't any paraphernalia found on Mr. Dixon or
in the trash can.
The jury found Dixon guilty as charged. 	He appeals.
DECISION
Dixon 	first 	contends the trial 	court 	abused 	its 	discretion 	in admitting
evidence that he possessed 	$1,255 in 	cash at the time of his arrest.2 	He
2The admissibility of evidence is within the discretion of the trial court, and
a 	reviewing court will reverse only when the trial court abuses its discretion.
State v. Atsbeha. 142 Wn.2d 904, 913-914, 16 P.3d 626 (2001). 	An abuse of
discretion occurs only when no reasonable person would take the view adopted
by the trial court. 	Id

No. 69629-7-1/4
contends his possession of cash was not relevant to or probative of the crime of
possessing a controlled substance, was more prejudicial than probative, and was
an 	inadmissible 	prior bad 	act 	under 	ER 404(b). 	There 	was 	no 	abuse 	of
discretion.
Evidence is relevant if it has "any tendency 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. 	In addition, a fact
bearing on the credibility or probative value of other evidence is relevant. 	State
v. Rice, 48 Wn. App. 7, 12, 737 P.2d 726 (1987). 	In this case, the fact that Dixon
possessed a 	very large amount of cash 	in an 	area 	known for drug dealing
together with his furtive gesture upon seeing the police, supported inferences
that he was purchasing or selling drugs. 	Either inference made his possession of
the drugs found in the garbage can more likely and explained why he possessed
no drug paraphernalia. 	It was thus relevant evidence.
Relevant evidence may be excluded, however, 	"if its probative value is
substantially outweighed 	by the danger of unfair prejudice." 	ER 403. 	The
incident occurred in an area known for drug trafficking. 	Dixon started to flee
when he saw police. 	Dixon possessed no drug paraphernalia. 	And, Dixon was
charged with possessing two different drugs in different packaging. 	Given these
facts, his possession of a cell phone and $1,255 in cash was highly probative of
whether he possessed the substances found in the garbage can. 	Clearly, the
evidence was also prejudicial. 	However, we cannot say it was an abuse of

No. 69629-7-1/5
discretion to conclude that its probative value was not substantially outweighed
by the danger of unfair prejudice.
Dixon also contends the evidence was inadmissible under ER 404(b). 	He
did not directly challenge the evidence on this basis below.3 A party who objects
to evidence on one ground may not raise a different ground for that objection on
appeal. 	State v. Mason. 160 Wn.2d 910, 933, 162 P.3d 396 (2007) (objection
solely on relevancy grounds did not preserve an ER 404(b) challenge on appeal),
abrogated on other grounds by Giles v. California, 554 U.S. 353, 128 S. Ct. 2678,
171 L. Ed. 2d 488 (2008). 	And, this court will not review a claim raised for the
first time on appeal unless it involves manifest error affecting a constitutional
right. 	RAP 	2.5(a). 	Because 	evidentiary 	errors 	under 	ER 	404(b) 	are 	not
constitutional error, review of Dixon's new claim is precluded. 	State v. Gresham,
173 Wn.2d 405, 432-33, 269 P.3d 207 (2012).
But, even if Dixon had preserved the error, he could not show a manifest
abuse of discretion. 	Under ER 404(b), "[ejvidence of other crimes, wrongs, or
acts is not admissible to prove the character of a person in order to show action
in conformity therewith." 	Such evidence may be admissible, however, as res
gestae evidence "'if it is so connected in time, place, circumstances, or means
employed 	that 	proof of such 	other misconduct is 	necessary for 	a 	complete
3 In his trial brief, Dixon asked the court to "[pjrohibit any State's witnesses
from testifying about what was found or not found on Mr. Dixon" under "ER 401,
402, 403." 	During argument on the motion, defense counsel argued relevance
and prejudice. 	While counsel also argued that State v. Trickier. 106 Wn. App.
727, 	25 	P.3d 	445 	(2001) 	supported 	her argument, 	she 	never mentioned 	or
advanced any argument based on ER 404(b).

No. 69629-7-1/6
description of the crime charged, or constitutes proof of the history of the crime
charged.'" 	State v. Schaffer. 	63 Wn. 	App. 	761, 	769, 	822 	P.2d 	292 (1991)
(quoting 5 K. Tegland, Wash. 	Prac. § 115, at 398 (3d ed. 	1989)), affd, 	120
Wn.2d 616, 828 P.2d 281 (1993).
Assuming without deciding that Dixon's possession of a large amount of
cash is evidence of other "crimes, wrongs, or acts" within the meaning of ER
404(b),4 it was nevertheless admissible as part of the res gestae of the offense.
The principal issue in this case was whether Dixon previously possessed the
drugs found in the garbage can. 	The items on Dixon's person at the moment he
allegedly sloughed the drugs were integral to the resolution of that issue. 	In
particular, items associated with drug activity tended to establish a connection
between 	Dixon 	and 	the 	drugs 	and 	explained 	why 	he 	possessed 	no 	drug
paraphernalia—a point the defense emphasized in closing and discussed during
voir dire. 	The evidence thus completed the story of the offense. 	See State v.
Jordan, 	79 	Wn.2d 	480, 	482-83, 	487 	P.2d 	617 	(1971) 	(in 	prosecution 	for
possession of codeine pills, evidence of needle marks, drug paraphernalia, and
methamphetamine either on the defendant's person or in close proximity to him
was "'an inseparable part of the whole deed'" (quoting State v. Niblack, 74 Wn.2d
200, 206, 443 P.2d 809 (1968))); State v. Flenoid. 838 S.W.2d 462, 467-68 (Mo.
4 Unlike most evidence offered under ER 404(b), res gestae evidence is
not evidence of unrelated prior criminal activity but rather a 	part of the crime
charged. 	State v. Sublett, 156 Wn. App. 160, 196, 231 	P.3d 231 (2010), affd.
176 Wn.2d 58. 	Division Two of this court has held that such evidence is "not
'prior misconduct' of the type generally inadmissible under ER 404(b)." 	State v.
Grier, 168 Wn. App. 635, 647, 278 P.3d 225 (2012).

No. 69629-7-1/7
App. 	1992) 	(where defendant was 	charged 	with 	possession 	of a 	controlled
substance and unlawful use of a weapon, evidence that he carried a beeper and
cash was "part of the res gestae of the charge being tried" and was "admissible
to present a complete and coherent picture of events surrounding the possession
of the cocaine and weapon.").
A case cited by Dixon—State v. Trickier, 106 Wn. App. 727, 25 P.3d 445
(2001)—is distinguishable. 	The State charged Trickier with possession of a
stolen credit card. 	Id. at 733. 	In addition to the credit card evidence, the trial
court admitted evidence that 16 other items belonging to victim's other than the
credit card owner were found in Trickler's actual or constructive possession, 	jd.
at 734. 	In reversing, the Trickier court noted that the trial court had not balanced
the prejudicial and probative value of the evidence, had admitted "a plethora" of
other 	uncharged 	acts, 	and 	that 	the 	State 	had 	not 	shown 	that 	Trickler's
possession of the other stolen items was an 	inseparable part of the charged
offense, 	jd. 	Here, 	by contrast, after balancing 	its probative and 	prejudicial
values the court admitted a single piece of evidence, the possession of which
was not itself a crime. 	As discussed above, the evidence was part of the res
gestae of the charged offense. Trickier is not applicable here.
Dixon also argues for the first time on appeal that testimony referring to
the cash as "unlawful drug proceeds" denied him a fair trial. 	Again, he fails to
carry his burden of demonstrating a basis to raise this alleged error for the first
time in this court. 	He provides no argument as to whether the testimony was
manifest constitutional error. 	And, 	even 	assuming the alleged 	error was of
7

No. 69629-7-1/8
constitutional magnitude, Dixon cannot demonstrate manifest error, i.e., an error
that had practical and identifiable consequences in the trial, for several reasons.
State v. Lynn, 67 Wn. App. 339, 345, 835 P.2d 251 (1992).
First, the testimony merely suggested what the jury could already infer
from the amount of drug trafficking in the area, the large amount of cash, and
Dixon's reaction to police—i.e., that Dixon was either purchasing or selling drugs.
Second, the witness did not testify that the money was in fact unlawful drug
proceeds. 	Rather, the witness testified that proceedings to seize the money as
unlawful drug proceeds had been initiated. 	And, finally, the references were
isolated 	and the 	prosecutor did 	not repeat them 	in closing argument. 	Any
constitutional error was not manifest.
Affirmed.
WE CONCUR:
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