State Of Washington v. Antoine Mills

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 80129-5-I
Respondent, DIVISION ONE
v.
UNPUBLISHED OPINION
ANTOINE R. MILLS,
Appellant.
CHUN, J. — Antoine Mills appeals his convictions for attempting to elude a
pursuing police vehicle and unlawful possession of a firearm in the first degree.
He says that the trial court erred by admitting telephone calls he made from jail
and evidence of an outstanding warrant. He also contends that the State
presented insufficient evidence to convict him of either charge. We affirm.
I. BACKGROUND
Federal Way police received an anonymous 911 call that Mills had an
outstanding warrant for his arrest and was at a house in Federal Way. Several
officers gathered near the reported address, preparing to arrest Mills. A few
minutes later, Mills and another person, later identified as his adolescent son, left
the house and got into a white pickup truck.
Mills began driving south, then made a U-turn and drove north, back
towards the officers. As Mills stopped at an intersection, Officer Jedidiah Tan
Citations and pin cites are based on the Westlaw online version of the cited material.
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pulled his police vehicle out into the intersection, blocking Mills’s path of travel,
and activated its overhead lights. Tan exited his vehicle.
Mills put the truck into reverse and starting driving backwards, then made
another U-turn. His tires squealed.
Another officer set up spike strips across the road in Mills’s path. Mills
came around the corner at about 30 to 35 miles per hour, ran over the spike
strips, and continued driving south on residential streets. Mills did not slow
down.
Tan pursued Mills down the residential streets at about 50 to 60 miles per
hour, but did not catch up to him. Tan testified that he saw about 12 to 18 people
along the path he drove, in their yards or on the sidewalk. There were no
vehicles or people on the roadway.
Mills stopped the pickup truck on the side of the road, yelled “run home” to
his son, and they ran in different directions. Tan, who had continued looking for
Mills, arrived at the abandoned truck seconds after Mills and his son had fled.
The rim was all that remained of the left front tire, and it had left grooves in the
asphalt. Officers called for a police tracking dog, and neighbors pointed in the
directions they had seen people running from the car.
The dog tracked Mills to a nearby home, where he was arrested. The
police towed Mills’s truck.
In the following days, Mills placed several phone calls from jail, during
which he discussed a gun that was hidden under the hood of the truck, by the
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battery. Detectives listened to these calls, obtained a search warrant for the
truck, searched it, and found the gun in the location Mills described.
The State charged Mills with attempting to elude a pursuing police vehicle
and unlawful possession of a firearm. After trial, a jury found Mills guilty on both
counts.
Mills appeals.
II. DISCUSSION
A. Admission of Mills’s telephone calls from jail
Mills says the trial court erred by admitting five telephone calls that he
made from jail because (1) they were not properly authenticated; (2) they were
hearsay; and (3) their probative value was substantially outweighed by the
danger of unfair prejudice, citing ER 403. We disagree.
The trial court admitted five telephone calls Mills made from jail after he
was arrested. In these calls, Mills explains that there is a gun under the hood of
the truck, by the battery. The State moved to admit the jail calls to prove
consciousness of guilt–that Mills possessed the gun–because Mills’s defense
was a general denial that he did not have control or possession of the gun.
We review a trial court’s admission of evidence for an abuse of discretion.
State v. Bradford, 175 Wn. App. 912, 927, 308 P.3d 736 (2013). A trial court
abuses its discretion when its decision is manifestly unreasonable or based on
untenable grounds. Id.3
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First, the State properly authenticated the telephone calls. Under
ER 901(a), “[t]he requirement of authentication or identification as a condition
precedent to admissibility is satisfied by evidence sufficient to support a finding
that the matter in question is what its proponent claims.” This requirement is met
“if sufficient proof is introduced to permit a reasonable trier of fact to find in favor
of authentication or identification.” State v. Danielson, 37 Wn. App. 469, 471,
681 P.2d 260 (1984). When making a determination as to authenticity, the trial
court is not bound by the rules of evidence. Bradford, 175 Wn. App. at 928. “A
trial court may, therefore, rely upon . . . lay opinions, hearsay, or the proffered
evidence itself in making its determination.” State v. Williams, 136 Wn. App. 486,
500, 150 P.3d 111 (2007). ER 901(b) provides an illustrative list that conforms to
the rule, but it does not limit the kind of evidence that may be presented or
dictate a particular method for authenticating the evidence. State v. Payne, 117
Wn. App. 99, 106, 69 P.3d 889 (2003).
Mills identified himself at the beginning of each call he placed from jail.
Mills talked at length about facts and circumstances highly personal and unique
to him. For example, he explained that he had his son in the car with him when
he got into a high-speed chase with the police, asked repeatedly about his son,
and explained exactly where the gun was hidden under the hood of the truck.
The trial court judge could rely on the contents of the calls themselves to
authenticate them. Given the extensive, personal, and detailed nature of the
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discussions, it strains credulity to believe the caller could have been anyone
besides Mills.
This conclusion is bolstered by testimony from King County Jail Sergeant
Ben Frary about the security procedures inmates must use to make telephone
calls from jail. Frary testified that when a person is admitted to jail, they are
assigned a unique booking and arrest number (BA number). The inmate uses
the BA number to create a unique personal identification number (PIN). The
inmate must use both the BA number and PIN to make a telephone call. Frary
also testified that the jail also uses a voice biometric system to ensure the voice
stating an inmate’s name at the beginning of each call matches their voice
sample in the system. Frary explained that the voice biometrics system
establishes the identity of the inmate making the call and prevents people from
stealing others’ PIN numbers. Mills contends that another inmate could have
bypassed the voice biometrics system by blowing into the phone, but offers no
evidence that this occurred here. Frary also testified that the telephone calls
were placed from the area of the jail where Mills was housed at the time. Mills
does not even allege, nor does he offer any evidence, that he did not follow these
standard procedures when he placed the calls at issue here.
Mills fails to make a serious argument that the caller was anyone but
himself. The trial court could reasonably conclude that the five jail calls were
what they purported to be based on Mills’s self-identification, the highly personal,
specific contents of the calls, and the testimony regarding the security
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procedures in place for making telephone calls at the jail. The State properly
authenticated the messages.
Second, the calls were not hearsay. Hearsay is “a statement, other than
one made by the declarant while testifying at the trial or hearing, offered into
evidence to prove the truth of the matter asserted.” ER 801(c). A statement by a
party-opponent is not hearsay. ER 801(d)(2). Mills’s statements in the phone
calls were statements of a party-opponent, and thus not hearsay. The
statements made by the other party on the line were not offered for the truth of
the matter asserted, but to provide context for Mills’s statements. Mills offers a
bulleted list of statements by the other party on the line that he contends were
offered for the truth of the matter asserted. However, he fails to offer any
explanation as to why he believes any of the listed statements were offered to
prove their content—i.e., for their truth. For example, the statements include that
Mills’s son was with his uncle, that the truck was in “Ashley’s name” or “your
girlfriend’s name,” and statements about the cost and process of retrieving the
truck or its contents from the impound lot. Because these statements would not
tend to prove any element of the crimes Mills was charged with, it does not
appear that they were offered to prove their contents. It was Mills’s own
statements about the gun hidden in the truck that were offered to prove that he
possessed the gun.
Third, Mills did not object to the five admitted telephone calls on the basis
of ER 403 at the trial court. Mills raised an ER 403 objection only to a separate
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June 7, 2018 jail call, which the trial court excluded. A party may only assign
error in the appellate court on the specific ground of the evidentiary objection
made at trial. State v. Powell, 166 Wn.2d 73, 83, 206 P.3d 321 (2009). Because
Mills failed to raise an ER 403 objection to the five admitted telephone calls
below, he may not raise the objection for the first time on appeal and we decline
to reach the issue.
The trial court acted within its discretion in admitting the recordings.
B. Admission of outstanding warrant for Mills’s arrest
Mills argues that the State erred in admitting evidence of his outstanding
warrant at trial.
The State moved in limine to admit evidence that Mills had a warrant out
for his arrest. Mills responded by offering to stipulate that “the officers had a
legal reason to pursue Mr. Mills.” After the State explained why it believed the
warrant was relevant and probative, the trial court commented to Mills’s attorney,
“Well, but the State doesn’t have to accept your stipulation and it doesn’t appear
that [the State] . . . is willing to accept that stipulation.”
The discussion about the warrant continued. At the end, the attorney for
the State explained, “My expectation is that I will direct the witnesses to say that
they respond- that they reported to this particular location because an
anonymous caller had indicated that the defendant was there and had a warrant.”
Mills’s attorney replied, “And I think if – if it just goes to that, I think that would be
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acceptable to defense.” The trial court agreed that if the State adhered this
stated plan, it would allow the testimony of the warrant to come in.
At trial, Officer Sean Warrick testified that he responded to an anonymous
911 call alerting officers that Mills was at a specific address and had an
outstanding warrant. He said the officers confirmed there was a warrant.
By agreeing to the State’s proposal of limited testimony on the warrant,
Mills abandoned or waived this issue. See State v. Valladares, 99 Wn. 2d 663,
672, 664 P.2d 508 (1983) (defendant who voluntarily withdraws motion to
suppress waives or abandons objection to admission of evidence). The State
adhered to the agreed-upon testimony of the warrant. Because Mills abandoned
this issue, we decline to address it further.
Mills points to the court’s comment about the State not having to accept
his proposed stipulation as an error. But as the exchanges quoted above show,
this was merely part of the discussion, not an oral ruling or final decision of the
court. Instead, the discussion continued until the parties agreed on testimony
that Mills’s attorney specifically stated was acceptable to defense. Because Mills
agreed to this, he did not preserve any objection for appeal.
The trial court did not abuse its discretion in admitting five telephone calls
that Mills made from jail.
1. Sufficiency of the evidence
Mills argues that the State failed to present sufficient evidence to prove
either of his convictions. We disagree.
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The test for determining the sufficiency of the evidence is whether, after
viewing the evidence in the light most favorable to the State, any rational trier of
fact could have found guilt beyond a reasonable doubt. State v. Salinas, 119
Wn.2d 192, 201, 829 P.2d 1068 (1992). “A claim of insufficiency admits the truth
of the State’s evidence and all inferences that reasonably can be drawn
therefrom.” Id. We “defer to the trier of fact on issues of conflicting testimony,
credibility of witnesses, and the persuasiveness of the evidence.” State v.
Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004), abrogated in part on other
grounds by Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d
177 (2004).
First, Mills argues that the State presented insufficient evidence to convict
him of attempting to elude a pursuing police vehicle because no rational jury
could have found that he drove in a reckless manner.
To convict Mills of attempting to elude a police vehicle, the State needed
to prove that Mills drove his car “in a reckless manner while attempting to elude a
pursuing police vehicle.” RCW 46.61.024. For this statute, “reckless manner”
means a “rash or heedless manner, with indifference to the consequences.”
State v. Naillieux, 158 Wn. App. 630, 644, 241 P.3d 1280 (2010) (quoting State
v. Ratliff, 140 Wn. App. 12, 14, 164 P.3d 516 (2007)); State v. Ridgley, 141 Wn.
App. 771, 781, 174 P.3d 105 (2007).
The State presented evidence that Mills drove recklessly down residential
streets for about 15 blocks. After spike strips deflated his tires, Mills continued
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speeding down the road on his tire rims. A witness described the incident as
follows: “I was outside with my cat and I hear, like, a freight train sound coming
from one of the side streets turning into . . . the neighborhood. And it was a . . .
truck . . . [T]here were sparks flying from the front tire, it looks like it was blown
out, and then it stops, like, right on that street, where I was.” Officer Tan testified
that he pursued Mills at a speed of 50 to 60 miles per hour on the residential
road, but was unable to catch him. The speed limit on the residential road was
only 25 miles per hour. Mills’s young son was in the car with him. There were
also about 12 to 18 people along Mills’s route of travel that were also
endangered by him speeding unsafely down the road. This evidence reflects that
Mills drove in a rash or heedless manner, indifferent to the consequences.
Viewing this evidence in the light most favorable to the State, a reasonable jury
could find that Mills drove recklessly.
Second, Mills says that the State presented insufficient evidence to
convict him of unlawful possession of a firearm because no jury could have found
that he was in constructive possession of the gun.
To convict Mills of first degree unlawful possession of a firearm, the State
had to prove that he possessed or had control over any firearm.
RCW 9.41.040(1)(a). Possession may be actual or constructive. State v.
Chouinard, 169 Wn. App. 895, 899, 282 P.3d 117 (2012). The State may
establish constructive possession by showing the defendant had dominion and
control over the firearm. Id. Courts have found sufficient evidence of
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constructive possession of contraband, and dominion and control, when the
defendant was the driver or owner of the car in which it was found. See, e.g.,
State v. Bowen, 157 Wn. App. 821, 828, 239 P.3d 1114 (2010); State v. Turner,
103 Wn. App. 515, 521, 13 P.3d 234 (2000); State v. Echeverria, 85 Wn. App.
777, 783, 934 P.2d 1214 (1997).
Mills was driving the truck in which the gun was hidden. The only other
person in the truck was his minor son. In telephone calls from jail, Mills
repeatedly described exactly where the gun was hidden, by the battery under the
hood of the truck, and requested that someone retrieve the gun from the truck to
help him avoid another criminal charge. No evidence exists that anyone else
knew where the gun was before Mills told them. He describes the truck as “my
truck,” and his medication was found in the glove box. Mills could quickly access
the gun while it was in the hood of his truck, and exclude others from using it, or
even knowing of its presence, because of its hiding place.
Mills says that the evidence linking him to the gun here is more attenuated
than in Chouinard. In Chouinard, Division Two of this court held the State
presented insufficient evidence against Chouinard to establish dominion and
control over a firearm because Chouinard was a passenger in the car and the
State demonstrated only his mere proximity to the weapon and his knowledge
that the weapon was in the vehicle. Chouinard, 169 Wn. App. at 902-03. By
contrast, Mills was the driver. Even from jail, Mills repeatedly tried to exercise
dominion and control over the gun by making phone calls requesting that others
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remove the gun from the truck on his behalf.
Mills argues that the gun did not have his fingerprints on it, was not tested
for DNA, and was not registered to him. None of these are requirements for
constructive possession. Mills also argues that other people may have had
dominion over the truck. But he points to no evidence that anyone else
possessed or controlled the gun, or even knew where the gun was before he told
them.
Viewing the evidence in the light most favorable to the State, a reasonable
jury could find that Mills possessed or had control over the gun.
We affirm.
WE CONCUR:
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