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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II
STATE OF WASHINGTON, Respondent, v. UNPUBLISHED OPINION KENNETH ANDRE JACOBS, Appellant. No. 43182-3-II

Van Deren, J. -- Kenneth Jacobs appeals from his conviction for unlawful possession of heroin, arguing that the trial court erred in admitting the heroin into evidence because the chain of custody was inadequate. We affirm.1 On October 25, 2011, Community Corrections Officer Edward Sparrowgrove was present at the Cowlitz County Jail while Jacobs was being booked into jail for violations of his community custody conditions. He watched while the jail's corrections officer, Officer McGone, searched Jacobs. He saw Officer McGone remove a small tinfoil packet from Jacobs's left rear pants pocket and heard Jacobs say he forgot that the packet was there. Officer McGone opened the packet and handed it to Officer Sparrowgrove. The packet contained black burned residue. A

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A commissioner of this court initially considered Jacobs's appeal as a motion on the merits under RAP 18.14 and then transferred it to a panel of judges.

43182-3-II portion of that residue was removed from the packet. A second corrections officer took photographs of the packet and portion of residue. Officer Sparrowgrove put the packet and portion of residue on a shelf and later gave it to Longview Police Officer Calvin Ripp. Officer Ripp collected the packet and portion of residue and advised Jacobs of his constitutional rights. After Jacobs waived those rights, he told Officer Ripp that he had smoked heroin on the tinfoil packet the day before. Officer Ripp transported the packet and the portion of residue to the police department. The portion of residue was sent to the crime lab, where it tested positive for heroin. The State charged Jacobs with unlawful possession of heroin. Officers Sparrowgrove and Ripp testified as described above, but Officer McGone did not testify. The State proffered the portion of residue, which had been marked Exhibit 2A, into evidence. Jacobs objected as to chain of custody. The trial court admitted Exhibit 2A. Jacobs later renewed his objection as to chain of custody and the court again overruled his objection. The jury convicted Jacobs as charged. Jacobs argues that the trial court erred in admitting Exhibit 2A. "Before a physical object connected with a crime may properly be admitted into evidence, it must be satisfactorily identified and shown to be in substantially the same condition as when the crime was committed." State v. Campbell, 103 Wn.2d 1, 21, 691 P.2d 929 (1984). When the evidence is susceptible to alteration by tampering or contamination, the proponent of the evidence must "establish a chain of custody `with sufficient completeness to render it improbable that the original item has either been exchanged with another or been contaminated or tampered with.'" State v. Roche, 114 Wn. App. 424, 436, 59 P.3d 682 (2002) (emphasis omitted) (quoting United States v. Cardenas, 864 F.2d 1528, 1531 (10th Cir. 1989)). In assessing the completeness of the chain of custody, the trial 2

43182-3-II court shall consider "`the nature of the article, the circumstances surrounding the preservation and custody of it, and the likelihood of intermeddlers tampering with it.'" Campbell, 103 Wn.2d at 21 (quoting Gallego v. United States, 276 F.2d 914, 917 (9th Cir. 1960)). Minor discrepancies in the chain of custody affect the weight of the evidence, not its admissibility. Campbell, 103 Wn.2d at 21; Roche, 114 Wn. App. at 436. We review the trial court's ruling on chain of custody for an abuse of discretion. Campbell, 103 Wn.2d at 21. Jacobs contends that the State did not establish a sufficiently complete chain of custody because: (1) Officer McGone, who removed the packet containing Exhibit 2A from Jacobs's pocket, did not testify; (2) Officer Sparrowgrove did not identify who took the residue identified as Exhibit 2A from the tinfoil packet; and (3) Officer Sparrowgrove did not specify that the tinfoil packet and residue that he placed on the shelf were the same ones that he gave Officer Ripp. But given Officer Sparrowgrove's presence throughout Jacobs's booking search, testimony from Officer McGone was not necessary to establish a chain of custody. And the lack of specific testimony from Officer Sparrowgrove about who removed the residue from the packet and whether the packet and residue he gave to Officer Ripp were the same ones he put on the shelf, are minor discrepancies that go to the weight of Exhibit 2A, not its admissibility. Jacobs does not show that the trial court abused its discretion in determining that the chain of custody as

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43182-3-II to Exhibit 2A was sufficiently complete. Accordingly, we affirm Jacobs' conviction. A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it is so ordered.

Van Deren, J. We concur:

Hunt, J.

Penoyar, J.

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