No. 48292-1-IThe Court of Appeals of Washington, Division One.
Filed: July 1, 2002 DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of King County, No. 98-1-08517-3, Hon. Gregory Canova, March 30, 2001, Judgment or order under review.
Counsel for Appellant(s), Washington Appellate Project, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Jason B. Saunders, Washington Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101.
Counsel for Respondent(s), Kathryn Y. Kim, King County Prosecutors Office, W554, 516 3rd Ave, Seattle, WA 98104.
PER CURIAM.
Michael Mills contends his jury conviction for theft by over-reporting work hours should be reversed because the trial court erroneously excluded testimony that supported his theory of the case. The trial court, however, had a tenable basis for its decision because none of Mills’ proposed witnesses supported his claim that he was allowed to work at home during the work assignment in issue. The court therefore did not abuse its discretion. Accordingly, we affirm.
FACTS
Mills was employed by Volt Temporary services and assigned to work at Microsoft testing `Outlook Express’ software. He was paid on the basis of timesheets he submitted to Volt. At some point, Mills’ supervisor, Lonnie Ferguson, received complaints about Mills not being at work and became suspicious when he repeatedly could not find Mills during his `core’ working hours. A review of Mills’ time sheets showed that he reported work hours that did not correspond to his arrival times as recorded by the key card entry system at Microsoft. When confronted with the discrepancy, Mills admitted in writing to padding his hours, estimating he had fraudulently claimed as many as 10 hours per week over the course of a two- month period. Approximately a week later, an officer from the Redmond police department contacted Mills to tell him he would be arrested. Mills confirmed to the officer that he had made a written confession.
The State charged Mills with theft and he entered an Alford[1] guilty plea. He later moved to withdraw his plea on the ground of ineffective assistance of counsel, asserting that his attorney failed to properly investigate the matter and did not contact witnesses suggested by Mills.
The trial court allowed Mills to withdraw his plea.
Prior to trial, Mills indicated he would call three witnesses to support his claim that working at home was permitted and he could thus explain the discrepancy between the key card records and his timesheets. None of the witnesses had worked with Mills on the Outlook Express project, but two were familiar with his earlier work for a different supervisor on the `Net Meeting’ project. On the State’s motion to exclude, the trial court ruled that the testimony of each witness was not relevant because it did not demonstrate that working at home was allowed on the project Mills was working on at the time of the alleged theft.
At trial, Mills testified that he signed the confession because he thought the matter would be dropped if he did and that he actually worked at least the number of hours he claimed, either at home or outside the beginning and ending times he listed on his time sheets. Ferguson, however testified that Mills was not authorized to work at home and that he would not have had the access to Microsoft’s computer network necessary to do his work at home. Mills was convicted and received a standard range sentence.
DECISION
Mills contends he was denied his constitutional right to present a defense by the trial court’s exclusion of the testimony of his three witnesses.
The United States and Washington Constitutions guarantee criminal defendants the right to present testimony in their own defense and the right to confront and cross-examine adverse witnesses.[2] But this right does not include the right to present irrelevant evidence.[3]
`Evidence is relevant if it tends to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.’[4] The admission or exclusion of evidence lies largely within the discretion of the trial court and its decision will not be reversed on appeal absent an abuse of discretion.[5] A trial court abuses its discretion when it acts on untenable grounds or for untenable reasons.[6]
Mills sought to introduce into evidence the testimony of three witnesses. James Mayo would testify that he worked at Microsoft and knew Mills worked off-campus. Jan Renfro would testify that her husband worked on an earlier project with Mills and that her husband did all his work off-campus. David Stenberg would testify that working off-campus was accepted as an industry practice.
Mills disclosed these witnesses on his pre-trial witness list. The State moved to exclude the witnesses on relevancy grounds. Mills offered affidavits executed by Mayo and Stenberg in support of Mills’ motion to withdraw his guilty plea set out how they would testify. Renfro’s expected testimony was described in a motion pleadings and in an oral offer of proof.
Mills worked for Volt Computer Services, which provided temporary employees to Microsoft for specific projects. Mills was first assigned to the `Net Meeting Group.’ After that job ended, he was assigned to the `Outlook Express’ group. Although Mills performed similar tasks in each group, the two groups were working on different pieces of software. Each had its own `Lead,’ who determined how the team members would perform their tasks, including whether they could work at home. In its affidavit of probable cause, the State alleged time discrepancies for Mills’ work in both groups. But Mills’ confession was limited to a 2-month period when he worked for the `Outlook Express’ group. At the time of the trial the State had narrowed the time period and the theft charge to cover only the period of time Mills worked for the `Outlook Express’ group. James Mayo’s declaration established that he worked at Microsoft and knew Mills from the SNet Meeting’ group.[7] Although he worked in a different area and had a different `Lead’ in the `Net Meeting’ group, Mayo stated in his affidavit that employees on projects such as these could take work home. But Mayo also stated:
At Microsoft, some work can be done at home with the Lead’s approval. Whether you can work at home will vary from project to project, group to group, and Lead to Lead. It varies from Lead to Lead on the same project. My Lead said it was okay for me to work from home because the product I was working on was meant for use on the Internet. I could go home, and dial into work.[8] The State argued that Mayo’s testimony was not relevant to the issue of whether Mills was allowed to work at home because Mayo did not work in the `Outlook Express’ group under the same Lead that Mills had and did not know what policy that Lead set for his workers. The trial court agreed.[9]
Jan Renfro’s husband worked on a contract basis for Microsoft. He worked on the `Net Meeting’ project but did not work with Mills in the `Outlook Express’ group. Mrs. Renfro managed her husband’s contracts and would have testified that he worked at home. The State moved to exclude her testimony also. Finding that she had no personal knowledge concerning Mills or his work in the `Outlook Express’ group, the court granted the motion.
David Stenberg worked for GTE as a software engineer. He worked with Mills when Mills worked at GTE. Stenberg would have testified that, `It is the norm in the computer industry to have some work done from home.[10] The State moved to exclude this testimony. The court found that Stenberg had no personal knowledge of Mills’ situation with Microsoft and that there was no basis to consider Stenberg an expert on industry practices. The court granted the motion to exclude.
The trial court based its decision on its conclusion that neither Mayo nor Renfro could testify concerning working at home and billing practices for the `Outlook Express’ project. They only had personal knowledge about the work and billing practices for the `Net Meeting’ project. The Net Meeting Project had a different Lead. Consistent with the statement Mayo made in his affidavit and testimony presented at the trial, there was never any dispute about the fact that each Lead determined the working conditions for that lead’s group. Because the State’s charge depended only on the time period when Mills worked on the `Outlook Express’ project, any testimony Mayo or Renfro could provide was not relevant to the charge before the court. The trial court did not abuse its discretion in granting the State’s motion to exclude Mayo or Renfro.
Stenberg’s declaration conceded that different shops had different ways of performing software testing and acknowledged that Microsoft did not necessarily follow practices that were otherwise standard in the industry. Stenberg apparently had no personal experience working for Microsoft. Neither his affidavit nor any other evidence provided a foundation to qualify him as an expert on computer industry practices. The trial court did not abuse its discretion in excluding his testimony.
Mills brought a motion to reconsider the ruling regarding Mayo at the beginning of the trial and attached a second statement from Mayo, in which Mayo took issue with statements made by Ferguson to police.[11]
But Mayo’s observations that Microsoft allowed working at home in this second declaration again indicated that it was conditioned on the individual Lead’s approval. Moreover, Mills did not dispute the prosecutor’s report that Mayo had told the prosecutor that he did not know what Ferguson’s rules were and did not know how Ferguson had assessed worker performance.
Near the end of the State’s case, defense counsel again asked the court to revisit the issue of Mayo’s proposed testimony. Counsel argued that Mayo would be able to testify that other employees who had moved from the `Net Meeting’ project to the `Outlook Express’ project were allowed to work from home. The court allowed the defense to call Mayo to make an offer of proof, and indicated that if Mayo testified that any other employee who moved into Ferguson’s group was allowed to work from home, the court would reconsider. But when Mayo testified, he indicated that the only worker he knew on the `Outlook Express’ group who worked from home worked for a different Lead than Mills.[12] The court again ruled that Mayo’s testimony was inadmissible, finding that it was irrelevant because it did not reference Ferguson’s group.[13] Because Mayo offered nothing to cast any doubt on Ferguson’s testimony that he did not allow temporary workers under his supervision to work at home and had communicated that policy to Mills clearly, the trial court’s ruling was again within its discretion.
Mills testified that he thought it was permissible to work at home. But there was no dispute on the question of whether some workers were permitted to work at home. Ferguson specifically testified that Mills was not permitted to work at home, and could not accomplish his work in this manner. Mills’ claim that he worked outside the hours he put on his time sheet was called into question by the absence of any key card entry record on some of the days he claimed and his admission even at trial that the hours he put down did not correspond to the hours he claimed to have worked. None of the excluded witnesses dealt with any of these critical issues.
In his reply brief, Mills correctly argues that for defense evidence to be relevant, it is not necessary that it directly support the defense if it challenges the State’s version of the events.[14] Here, however, the testimony did not even indirectly challenge the evidence that Ferguson had the authority to not allow work from home and in fact had told Mills he could not work from home. The trial court did not abuse its discretion in granting the State’s motion. We therefore affirm.
(1970).