WORK, SYDNEY

Work was pulled over for speeding. During a consensual search, police found marijuana and methamphetamine in a cup of coffee in the center console area. Work admitted to having a marijuana pipe in the truck, but both he and his passenger denied possessing what was in the coffee cup. The passenger said that she had found the marijuana and methamphetamine (after getting the truck back from someone they’d lent it to) and had put it in the cup to throw way. She said Work was unaware the drugs were in the vehicle. Work made other statements to the officer about his criminal history and drug use. These statements were recorded and later offered in Work’s trial for possession of methamphetamine. The trial court excluded part of the statements under Rule 404(b) and 403 but admitted others, including that he had been previously arrested for drugs, had a prior felony drug conviction, and had used marijuana earlier that day and meth several months earlier. It admitted the evidence to show Work’s knowledge, intent, identity, and to rebut a defensive theory that the passenger was in sole possession of the contraband. The jury convicted.

On appeal, Work challenged the trial court’s decision to admit the extraneous offense evidence on the recording. Much of the same evidence was admitted without objection during the officers’ testimony, but the court of appeals assumed, without deciding, that Work had not forfeited his complaint. Citing Work’s argument in opening statement that he didn’t know there was methamphetamine in the vehicle, the court of appeals held that Work’s prior conviction and drug use were circumstantial evidence that his possession on this occasion was intentional or knowing. It cited other courts of appeals cases, one of which held that a prior drug offense reduces the possibility that the defendant’s act of possession on the occasion in question was done with innocent intent. The court of appeals also held that the trial judge could have reasonably found the Rule 403 factors weighed in favor of admission.  

Work argues that the extraneous offense evidence does not refute his claim that he was unaware of the drugs in the coffee cup and that it is nothing more than propensity evidence. He contends that, in the federal courts of appeals, a defendant’s prior possession or use is not admissible unless the defendant claims he was unfamiliar with the contraband. In absence of such a claim, the defendant’s knowledge is not at issue. He argues that the evidence could not have been admitted under an identity theory to prove he was the one who possessed the contraband because this ignores the concept of joint possession. He also contends that the circumstances are not so unusual as to be evidence of the defendant’s “handiwork” or “signature” or to be admissible under the doctrine of chances.