## Facts

- Doug R. Day drove around a police barrier during an accident investigation and was stopped on suspicion of DUI.
- The officer suspected intoxication; Day denied drinking and refused field sobriety and portable breath testing.
- After Day’s arrest, officers searched his truck and found a small amount of marijuana and a marijuana pipe in the center armrest console.
- Day immediately denied ownership or knowledge of the items and stated he had recently retrieved the truck from a repair shop.
- A post-arrest blood-alcohol test was 0.04; Day was charged with negligent driving in the first degree and cited under municipal code provisions for possession of marijuana under 40 grams and possession of drug paraphernalia.
- At trial, Day asserted an unwitting-possession defense, claiming he did not know the marijuana and pipe were in the truck.
- Day called the repair shop owner, who testified the truck had been in the shop for months, an employee had been fired for suspected drug use, and another customer previously complained of paraphernalia found after service.
- Defense counsel sought to ask the witness about Day’s community reputation for sobriety (non-use of drugs and alcohol); the trial court excluded the testimony.
- The jury acquitted Day of reckless driving but convicted him of possession of drug paraphernalia.

## Issues

1. Whether, when a defendant asserts unwitting possession to drug possession and paraphernalia charges, ER 404(a)(1) permits the defendant to introduce reputation evidence of sobriety as a pertinent character trait.
2. Whether excluding such reputation evidence was an abuse of discretion requiring reversal.

## Decision

- The Washington Supreme Court held the trial court abused its discretion by excluding reputation evidence of Day’s sobriety.
- The court ruled sobriety is a pertinent character trait under ER 404(a)(1) when the defense theory is unwitting possession.
- The court reversed and remanded for a new trial.

## Legal Principles

- ER 404(a)(1) allows a criminal defendant to offer evidence of a pertinent character trait to support an inference of conduct consistent with that trait.
- “Pertinence” may be evaluated in light of a recognized defense theory, not solely the formal statutory elements of the charged offense.
- In an unwitting-possession case, a defendant’s reputation for sobriety is relevant to whether the defendant likely knowingly possessed drugs or paraphernalia.
- A trial court abuses discretion when it excludes admissible character evidence based on an incorrect legal premise, including confusing reputation evidence under ER 404(a)(1) with specific-acts evidence addressed by ER 404(b).
- Erroneous exclusion of defense character evidence can be prejudicial when the defense turns on the plausibility of the defendant’s lack-of-knowledge claim.

## Conclusion

The court required a new trial because a defendant claiming unwitting possession must be allowed to present reputation evidence for sobriety under ER 404(a)(1) as a pertinent trait bearing on whether possession was knowing.


City of Kennewick v. Day, 11 P.3d 304 (Wash. 2000)