Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding precedent for any proposition of law.

MEMORANDUM OPINION AND JUDGMENT

BOLGER, Judge.

A parole officer found a bottle with crack cocaine in parolee Lewis Jordan Jr.'s pocket during an unannounced home visit. At the ensuing trial, Jordan testified that he thought the bottle contained only aspirin. The trial judge allowed the State to question Jordan about several prior occasions when Jordan had been found in possession of cocaine in order to prove that Jordan knew that the substance in the bottle was cocaine. Jordan now argues that it was improper to allow the prosecution to ask about his prior experience with cocaine because, after the court ruled that this evidence was admissible, Jordan admitted on cross-examination that he had previously consumed crack cocaine and knew what it looked like. We conclude that the judge did not commit any error when he allowed the prosecutor to question Jordan about this evidence.

Background

Jordan's parole officer conducted an unannounced home visit of Jordan's residence with several other officers. After the officers arrived at Jordan's residence, one officer placed Jordan in handcuffs and pat-searched him. The officer found a small pill bottle in the front pocket of Jordan's sweat pants, which contained several pieces of crack cocaine. Jordan was charged with misconduct involving a controlled substance in the fourth degree.1

Jordan's defense was that he thought that this bottle contained aspirin. Before Jordan testified, he asked the court to rule on whether the State would be allowed to introduce evidence of his prior possession of cocaine in order to rebut this defense. Superior Court Judge pro tem Larry Card stated that, if Jordan testified along the lines of "I knew I had it, but I didn't know what it was, I thought it was aspirin," that testimony would open the door to the admission of his prior experience with cocaine to prove his knowledge.

Jordan then testified that the night before he was arrested, he was in a truck in a parking lot downtown, sitting next to another passenger named Curt. Jordan told the driver he wanted to go to a grocery store to get some aspirin because he had a headache. Curt said he had some aspirin and took a white container out of his pocket. He poured two pills into Jordan's hand, and Jordan swallowed them with a drink of soda. Jordan testified that he probably looked at the pills before he swallowed them. When Jordan asked for a third aspirin, Curt handed him the bottle, which Jordan put in his pocket. Jordan testified that he never opened the bottle to look inside, and that he did not know that it contained any controlled substances.

After this testimony, the State made an offer of proof of nine incidents when Jordan had been found in possession of cocaine or cocaine paraphernalia or had admitted using cocaine. Judge Card ruled that the State could ask Jordan about several of these incidents.

Jordan admitted on cross-examination that he knew what crack cocaine looked like and that he had consumed it before. (After this admission, Jordan's attorney did not ask the judge to reconsider his ruling admitting the evidence of his prior experience with cocaine.) Jordan testified that he started using cocaine in 1991, that he had been arrested for possessing crack cocaine in his shirt pocket, in his pants pocket, in his sock, and in his jacket, and that he had been arrested with crack pipes. Jordan again admitted that he knew what crack cocaine looked like, but he said that he hadn't seen it "in different types."

The prosecutor did not mention Jordan's prior experience with cocaine in his closing argument. At the end of the trial, Judge Card gave the jury a cautionary instruction, including a warning that this evidence "may not be considered by you to prove that the defendant is a person of bad character or that he has a tendency to commit crimes." The instruction went on to specify that the evidence "may be considered by you only for the limited purpose of deciding if it tends to show knowledge and/or absence of mistake."

Jordan was convicted after the trial, and he now appeals.

Discussion

Under Alaska Evidence Rule 404(b)(1), evidence of specific instances of a person's conduct is not admissible to show that the person acted similarly on the particular occasion being litigated. However, subject to Evidence Rule 403, evidence of a person's conduct on other occasions is admissible to prove the person's knowledge, or to prove that the person did not act from inadvertence or mistake.

Under Evidence Rule 403, a judge must exclude evidence if its probative value is outweighed by its potential for unfair prejudice. When the question is whether the trial judge properly weighed these competing interests, we review the judge's ruling for an abuse of discretion.2 A trial court abuses its discretion when "the reasons for [its] exercise of discretion are clearly untenable or unreasonable."3

Jordan concedes that after his direct testimony, the question of whether he had used crack cocaine in the past and knew what it looked like was "arguably" relevant to whether he knew there was crack cocaine in the bottle the parole officer found in his pants. We agree that Judge Card reasonably concluded that Jordan's testimony put his knowledge regarding crack cocaine at issue.

But Jordan now argues that once he admitted during cross-examination that he had used crack cocaine and knew what it looked like, any further testimony concerning his knowledge of crack cocaine was minimally relevant. Jordan did not make this argument in the trial court, so we review this issue only for plain error.

Both parties suggest that the answer to this issue is in the case of Gargan v. State.4 Gargan was charged with solicitation to commit perjury and tampering with physical evidence, after he tried to have burglary charges against his son dismissed by persuading the alleged victim to sign a letter falsely stating that the son had permission to enter the victim's house.5

At trial, Gargan claimed that he did not have a good understanding of the criminal justice system.6 The trial judge allowed the prosecutor to cross examine Gargan on his criminal record, which included twenty-five prosecutions, and eleven convictions, between 1945 and 1968.7 The judge gave the jury a limiting instruction that the prosecutions and convictions were to be considered only with regard to Gargan's knowledge of the criminal justice system.8

This court agreed that Gargan's extensive experience with the criminal justice system was highly probative of his mental state.9 We also concluded that the probative value of this testimony outweighed the obvious prejudice, because Gargan relied on his claimed ignorance of the criminal justice system and denied the general facts concerning his criminal record, and because the prejudicial impact of this evidence was mitigated by a limiting instruction.10

In this case, the fact that Jordan had previously been arrested several times for possession of cocaine created an obvious danger of unfair prejudice. The jury was likely to conclude that, because Jordan had previously illegally possessed cocaine, he was likely to have illegally possessed cocaine in the incident for which he was on trial. Used in this manner, the evidence would be inadmissible evidence of propensity.

On the other hand, the Gargan case suggests that Judge Card's rulings in this case were reasonable. The evidence that Jordan was familiar with cocaine was relevant to evaluating his defense that he was unaware that the bottle he had in his possession actually contained cocaine. He was much more likely to be able to recognize cocaine than someone who was unfamiliar with it.

If Jordan had represented, before he testified, that he would be admitting that he was familiar with cocaine because he had previously possessed it, it seems unlikely that there would have been any reason to admit the evidence that Jordan had previously been arrested for possession of cocaine or to admit the details of those arrests. But Jordan did not make this representation. He merely argued that his prior experiences with cocaine were not relevant. Judge Card properly ruled otherwise.

We also conclude that it was not obvious that Jordan's later admissions destroyed the relevance of this evidence. Even after Jordan admitted that he was familiar with crack cocaine, he continued to equivocate about whether the rocks in the bottle appeared to be crack cocaine. And after the prosecutor cross-examined Jordan about his prior experience with cocaine, he denied that he had seen cocaine "in different types." Judge Card could have reasonably concluded that the extent of Jordan's experience with cocaine was necessary to show the likelihood that he recognized the contents of the bottle, and that the cautionary instruction adequately mitigated the prejudicial impact of this evidence.

Jordan also argues that one of the prior incidents, when he was arrested with cocaine in his shirt and pants pockets, may have involved powdered cocaine, rather than crack cocaine. When Judge Card addressed this argument, he relied on expert testimony that cocaine is the same substance regardless of its form, and that the expert witness had occasionally misidentified the form of cocaine based on a visual examination alone. Therefore, Judge Card could reasonably conclude that Jordan's experience with powdered cocaine could be relevant to his knowledge of the crack cocaine in the bottle.

We thus conclude that Judge Card did not abuse his discretion when he ruled that this evidence was admissible, and that he did not plainly err when he allowed the prosecutor to continue to question Jordan about his experience with cocaine even after Jordan admitted that he was familiar with crack cocaine.

Conclusion

We AFFIRM the superior court's judgment.