No. 27346-2-II.The Court of Appeals of Washington, Division Two.
Filed: February 25, 2003. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of Kitsap County Docket No: 00-1-01388-2 Judgment or order under review Date filed: 04/20/2001.
Counsel for Appellant(s), Eric Michael Fong, Rovang Fong
Associates, 569 Division St. Ste a, Port Orchard, WA 98366-4600.
Counsel for Respondent(s), Randall Avery Sutton, Kitsap Co Prosecutor’s Office, Msc 35, 614 Division St, Port Orchard, WA 98366-4681.
QUINN-BRINTNALL, J.
Margaret Comiskey appeals her second degree burglary and felony bail jumping convictions, claiming that they are based on irrelevant and insufficient evidence and that her trial counsel was ineffective. Because the evidence admitted was relevant and sufficient to prove Comiskey’s guilt beyond a reasonable doubt to any reasonable jury, and because counsel provided effective assistance, we affirm.
FACTS
Sheila Brown fired Margaret Comiskey from her employment-recruiting job at Michael J. Hall Company (Hall) on Friday, August 25, 2000. The following Sunday, Comiskey used the employee key, which she had failed to surrender to Brown as requested, and went to Hall’s offices. Comiskey removed everything from her former work area, including client files and office equipment belonging to her employer, and placed it into five boxes. The company’s network administrator, Scott Edwards, discovered the theft Sunday evening. Hall reported the crime to the Poulsbo Police, who telephoned Comiskey at her home. Comiskey acknowledged that she took the items, stating: `I should not have went in and took anything. It was my intention to hold it until I got my paycheck.’ Report of Proceedings (RP) at 146.
The State charged Comiskey with second degree burglary on October 4, 2000. Comiskey failed to appear for a pre-trial hearing on January 10, 2001. Comiskey’s counsel telephoned the court to inform it that Comiskey was in Hawaii caring for her sick mother and was due back on January 14th. The court issued a bench warrant. The State added a bail jumping charge on March 7, 2001.
Comiskey was tried before a jury in April 2001. The jury convicted her of both offenses, and she appeals. We address three issues: (1) whether documents from the stolen client files were admissible, (2) whether Comiskey’s trial counsel provided effective assistance, and (3) whether the evidence is sufficient to support the second degree burglary conviction.
ANALYSIS Admission of Evidence
The decision to admit evidence lies within the trial court’s sound discretion, and we will not overturn such a decision absent a manifest abuse of that discretion. State v. Bourgeois, 133 Wn.2d 389, 399, 945 P.2d 1120 (1997). A trial court abuses its discretion when it bases its decision on untenable grounds or untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
Over Comiskey’s relevance objection, the trial court admitted a job description for Ralph Tyler Companies, one of Hall’s clients. The document was in one of the files Comiskey took. The State offered the evidence to show that Comiskey intended to use the stolen files to operate a business in competition with Hall’s. Comiskey stipulated to posting a nearly identical job description for this same company on a national posting board in an attempt to recruit for the position approximately two weeks after she was fired. The exhibit was clearly relevant to show Comiskey’s motive for the theft: Comiskey intended to and did use the stolen files to continue doing business as an employment recruiter.
Comiskey also claims that the exhibit’s probative value is outweighed by the danger of unfair prejudice, and therefore it should not have been admitted under ER 403. The danger of unfair prejudice results from evidence likely to arouse an emotional response rather than a rational decision among the jurors. Carson v. Fine, 123 Wn.2d 206, 223, 867 P.2d 610
(1994). In explaining why the evidence should have been excluded, Comiskey states only that the exhibit `gave rise to the inference that Ms. Comiskey had motive to steal Hall Company information in order to establish herself as an independent recruiter.’ See Br. of Appellant at 9. But the inference of motive is competent evidence that does not engender `an emotional response.’ The trial court did not err by admitting this exhibit.[1]
Ineffective Assistance
Comiskey next claims that her trial counsel was ineffective. She bases this claim on three arguments: (1) counsel failed to request a bill of particulars; (2) counsel failed to request two jury instructions, one on the statutory defense of mistake and the other on the lesser included offense of trespass; and (3) counsel failed to arrange for Comiskey to appear at the pre-trial hearing telephonically and thereby avoid the bail jumping charges. None of Comiskey’s arguments is persuasive. To establish ineffective assistance of counsel, Comiskey must show (1) deficient performance upon review of the entire record and (2) a reasonable probability that, except for counsel’s deficient performance, the result of the proceeding would have been different. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Performance of counsel is deficient when it falls `below an objective standard of reasonableness’ based on consideration of the circumstances. State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987) (citing Strickland, 466 U.S. at 687-88). Comiskey must show there were no legitimate strategic or tactical reasons for the challenged attorney conduct. McFarland, 127 Wn.2d at 336. This court strongly presumes that a defendant received effective representation. State v. Brett, 126 Wn.2d 136, 198, 892 P.2d 29 (1995), cert. denied, 516 U.S. 1121 (1996).
Bill of Particulars
The purpose of the bill of particulars is to give the defendant sufficient notice of the charge so that she can competently defend against it. State v. Devine, 84 Wn.2d 467, 471, 527 P.2d 72 (1974). Moreover, the furnishing of a bill of particulars is discretionary with the trial court. State v. Noltie, 116 Wn.2d 831, 844, 809 P.2d 190 (1991). A bill of particulars is appropriate when `an information does not allege the nature and extent of the crime with which the defendant is accused, so as to enable the defendant to properly prepare his or her defense{.}’ State v. Bergeron, 105 Wn.2d 1, 18, 711 P.2d 1000 (1985).
Here, there was no doubt as to what underlying crime the State would argue supported the burglary conviction; from the initial police contact Comiskey was on notice that the theft of the five boxes from Hall was the underlying crime. The charging documents adequately alleged the nature and extent of the crimes charged and enabled Comiskey and her counsel to properly prepare her defense. A bill of particulars would not have told Comiskey anything she did not already know; therefore, neither was it reasonable for counsel to request one, nor was Comiskey prejudiced by the lack of her counsel’s request for one.
(b) Jury Instruction on Mistake
RCW 9A.56.020(2) sets out the elements of the statutory defense of mistake:
In any prosecution for theft, it shall be a sufficient defense that the property or service was appropriated openly and avowedly under a claim of title made in good faith, even though the claim be untenable.
Comiskey appears to argue that her attorney should have proposed an instruction on this statutory defense of mistake.
But the evidence does not support this defense. Comiskey did not appropriate the property openly; she went to the office after hours, using a key that she did not rightly possess. She also did not take the property under a good faith claim of title; even as an employee she was told more than once not to take the company’s files home.
Instructions must be based on the evidence. See State v. Hughes, 106 Wn.2d 176, 191, 721 P.2d 902 (1986) (holding that it is `prejudicial error to submit an issue to the jury when there is not substantial evidence concerning it’). Here the evidence did not support the statutory defense of mistake, and the trial court should not have given the instruction if requested. Therefore it was appropriate that Comiskey’s counsel did not propose this instruction.
(c) Lesser Included Instruction
Where the evidence supports it, the court should instruct the jury on a lesser-included offense. State v. Workman, 90 Wn.2d 443, 447, 584 P.2d 382
(1978). A defendant is entitled to such an instruction if each of the elements of the lesser offense must also be a necessary element of the offense charged, and if the evidence in the case supports an inference that only the lesser crime was committed. Workman, 90 Wn.2d at 447-48; State v. Fernandez-Medina, 141 Wn.2d 448, 455, 6 P.3d 1150 (2000).
The first part of the Workman test is satisfied in this case: Both second degree burglary and criminal trespass require proof that the accused entered or remained unlawfully in a building. See RCW 9A.52.030(1) (second degree burglary); RCW 9A.52.070(1) (first degree criminal trespass). See also State v. Soto, 45 Wn. App. 839, 841, 727 P.2d 999
(1986) (observing first degree criminal trespass is lesser-included offense of second degree burglary). But the evidence does not support an inference that Comiskey committed only the lesser crime. See Fernandez-Medina, 141 Wn.2d at 455.
Comiskey argues that the facts in this case `do not evince `theft.” Br. of Appellant at 17. She points to evidence that she asked Brown `if she could work on the files she had taken home’ (Br. of Appellant at 16 (citing RP 136-38)) and asserts that Brown allowed Comiskey to keep the materials until her paycheck was ready. But these things happened after Comiskey had already removed five postal boxes full of materials that did not belong to her. Comiskey was unequivocally fired on Friday and surrendered what was supposed to be her office key; she knew the building was not open to the public on weekends; Comiskey entered the building on Sunday afternoon. Thus, she clearly entered the building unlawfully. The evidence does not support instructing the jury on the lesser-included offense of criminal trespass. Additionally, because Comiskey was a first-time offender, her standard range sentence was less for the conviction of second degree burglary under the Sentencing Reform Act than the maximum possible for first degree criminal trespass. Comiskey’s counsel made a legitimate strategic choice to argue for an acquittal and avoid a guaranteed conviction of criminal trespass.
(d) Bail Jump Charge
Comiskey claims that her trial counsel should have appeared in court on the date of her scheduled appearance and arranged for her to appear telephonically from Hawaii.
But there is no evidence that Comiskey was available by telephone or that the court would have allowed her to appear that way.[2]
Telephoning the court and reporting that Comiskey was out of state caring for her sick mother might have been the only option available to counsel, and is the only one supported by the record. This record does not support Comiskey’s claim that her counsel’s performance was deficient.
Sufficiency of the Evidence
Comiskey also claims that the State failed to prove beyond a reasonable doubt that she intended to commit a crime against Hall. In reviewing a claim of insufficient evidence, we view the evidence and all reasonable inferences therefrom in the light most favorable to the State and determine whether any rational trier of fact could have found the essential elements of the charged crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221-22, 616 P.2d 628 (1980). A person is guilty of burglary in the second degree if, (1) with intent to commit a crime against a person or property therein, (2) she enters or remains unlawfully in a building other than a vehicle or a dwelling. RCW 9A.52.030(1).
Here, the evidence establishes the following: After being fired, Comiskey declined to immediately remove her personal belongings under Brown’s supervision. She passed off another key as her office key and entered her former workplace on a Sunday while it was closed. She took five boxes of office supplies and files, leaving only the computer and telephone at her workstation. Brown had refused Comiskey’s request that she be allowed to continue to recruit employees for two of Hall’s clients. The files Comiskey took included the prohibited files, and she attempted to recruit employees using a job announcement identical to that belonging to Hall. Comiskey’s evidence that she returned the stolen materials does not negate the evidence that she entered the building unlawfully and intentionally took Hall’s office supplies and files knowing that they were not hers.
The evidence admitted was relevant and sufficient to prove Comiskey’s guilt beyond a reasonable doubt to any reasonable jury.
We affirm.
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 pursuant to RCW 2.06.040, it is so ordered.
ARMSTRONG, J. and HUNT, C.J., concur.