State v. Seitter , 127 Idaho 356 ( 1995 )

SILAK, Justice,

dissenting.

I respectfully dissent from that part of the Court’s opinion which holds that the admission of the two bags of unidentified white powder was not harmless error, although I agree that the two bags of white powder were not relevant and should not have been admitted into evidence.

As this Court stated in State v. Raudebaugh, 124 Idaho 758, 767, 864 P.2d 596, 605 (1993), if there is not a reasonable possibility that evidence has contributed to the conviction when viewed in light of the evidence as a whole, the evidence may be declared harmless beyond a reasonable doubt. Citing State v. Pizzuto, 119 Idaho 742, 762, 810 P.2d 680, 700 (1991). When considered with the evidence as a whole, the white powder appears non-contributory to conviction because there is substantial other evidence in the record of Seitter’s possession with intent to deliver.

Seitter argues on appeal to this Court that the only exhibits linking him to the methamphetamine found in the closet were the two bags of white powder discovered in the desk drawer. There is, however, other evidence that Seitter possessed the items in the closet, principally two of the three guns found in the closet. A list of firearms was seized from a filing cabinet under the desk in the bedroom. The list bore Seitter’s fingerprints, and a police officer testified, as quoted by the Court’s opinion, that Seitter told him, ‘Well, I wrote the list. Those are my guns.” Unlike the Court, I do not find the testimony of the officer ambiguous. Moreover, it is immaterial whether the loaded M-l carbine was on the list: there were two other guns in the closet that the testimony and evidence establish were Seitter’s guns. The fact that Seit-ter kept valuable personal possessions such as guns in the closet is strong circumstantial evidence that he possessed the methamphetamine, baggies and beam scale found in the closet. The baggies and beam scale were evidence that the controlled substance was possessed with intent to deliver.

Ten to twelve baggies similar to those in the closet were found in the upper left-hand drawer of the desk in the bedroom. The desk contained items personal to Seitter, as listed in the Court’s opinion. Thirty baggies were found in a blue overnight case on top of the locking cabinet where Seitter kept his tattoo equipment.¹ The evidence presented to the jury was substantial that Seitter exercised control over the desk and file cabinets, and that baggies of the type used by drug dealers were found in those locations.

I therefore conclude that the admission of the two bags of white powder was harmless error because in viewing the evidence as a whole I do not believe that their admission might have contributed to Seitter’s conviction. I believe that the admission of such evidence was harmless beyond a reasonable doubt.

TROUT, J., concurs.

1 . There were two file cabinets: one under the desk, and one mounted over the desk — this latter cabinet was locked and contained Seitter's tattoo equipment.