STATE v. TOMLIN, 28825-7-II (Wash.App. 5-13-2003)

No. 28825-7-IIThe Court of Appeals of Washington, Division Two.
Filed: May 13, 2003 DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION

Appeal from Superior Court of Clark County Docket No: 01-1-02162-1 Judgment or order under review Date filed: 05/09/2002

Counsel for Appellant(s), Suzan L. Clark, Attorney at Law, 1101 Broadway St. Ste 250, Vancouver, WA 98660-3320.

Counsel for Respondent(s), Richard Alan Melnick, Attorney at Law, 1200 Franklin, P.O. Box 5000, Vancouver, WA 98666-5000.

QUINN-BRINTNALL, A.C.J.

David Bruce Tomlin appeals his conviction of first degree theft, arguing that the trial court erred in granting a continuance of his trial date past the expiration of the timely trial period. We affirm.

FACTS
Tomlin, an employee of SEH America, was caught on videotape stealing thermocouples[1] from the company. On December 13, 2001, the State filed an information charging Tomlin with one count of first degree theft. Tomlin’s trial was originally set for April 10, 2002. On April 5, 2002, due to court congestion, the trial court continued the trial to April 22, 2002, 89 days into the timely trial period.

On April 17, 2002, the State moved to continue Tomlin’s trial date again because the State’s two primary witnesses would be unavailable to testify on April 22, 2002. The witnesses, Paige Wilson and Kevin Ball, work for the victim company, SEH America, and they had taken statements from Tomlin regarding the theft. Wilson was also the custodian of the records in this case. On April 22-24, Wilson and Ball were scheduled for an out-of-town business trip for SEH America. In addition, the prosecutor assigned to Tomlin’s case was scheduled for an out-of-town CLE training from April 23-25, 2002. Over Tomlin’s objection, the trial court continued the case to April 29, 2002. On April 30, 2002, a jury convicted Tomlin of first degree theft, and he was sentenced to 30 days in jail and 30 days on work crew.

ANALYSIS
Tomlin contends that the trial court committed reversible error in continuing his trial date under CrR 3.3(h)(2) six days beyond the timely trial period. Specifically, he asserts that he was entitled to be brought to trial on or before April 23, 2002, and that the court abused its discretion by granting a continuance based on the unavailability of state witnesses and the prosecutor.

A defendant who has been released from jail must be brought to trial no later than 90 days after his arraignment. CrR 3.3(c)(1). However, the right to be tried within 90 days after arraignment is not absolute. Continuances granted by a court are excluded from the 90-day time period. CrR 3.3(g)(3). A court may continue a case where (1) the continuance is required for the administration of justice and (2) the defendant will not be substantially prejudiced in the administration of his or her defense. CrR 3.3(h)(2).

We review a trial court’s decision in granting a continuance under CrR 3.3 under an abuse of discretion standard. State v. Woods, 143 Wn.2d 561, 579, 23 P.3d 1046 (citing State v. Campbell, 103 Wn.2d 1, 14, 691 P.2d 929
(1984)), cert. denied, 534 U.S. 964 (2001). The granting of a continuance constitutes an abuse of discretion only if the decision was `manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.’ Woods, 143 Wn.2d at 579 (quoting In re Det. of Schuoler, 106 Wn.2d 500, 512, 723 P.2d 1103 (1986)). In the case at bar, the trial court granted a continuance due to the unavailability of material state witnesses and the prosecutor. Because the continuance was required for the administration of justice, the trial court did not abuse its discretion in granting a six-day continuance.

The unavailability of a material witness is grounds to delay a trial for a reasonable time. State v. Torres, 111 Wn. App. 323, 329, 44 P.3d 903 (2002) (citing State v. Day, 51 Wn. App. 544, 549, 754 P.2d 1021 (1988)), review denied, 148 Wn.2d 1005 (2003). The unavailability of a material witness is a valid ground for continuing a criminal trial where (1) there is a valid reason for the unavailability; (2) the witness will become available within a reasonable time; and (3) there is no substantial prejudice to the defendant. State v. Nguyen, 68 Wn. App. 906, 914, 847 P.2d 936 (citing State v. Day, 51 Wn. App. 544, 549, 754 P.2d 1021, review denied, 111 Wn.2d 1016
(1988)), review denied, 122 Wn.2d 1008 (1993). In the case at bar, the State’s two material witnesses were unavailable to testify at trial because they had been scheduled to attend an out-of-town business meeting for their employer, the victim of Tomlin’s theft. Requiring these witnesses to attend trial during a business meeting would have re-victimized SEH America by further disrupting its business. The witnesses’ unavailability was not due to personal or voluntary absence. See Nguyen, 68 Wn. App. at 916 (holding that a witness’s unavailability to testify at trial was valid where he was required to report to the Air National Guard and he was not unavailable for personal reasons). Further, the unavailability of these witnesses was unforeseen, a result of the original continuance to April 22, 2002. These witnesses were available to testify on April 25, 2002, and their absence caused only a three-day delay. Finally, Tomlin has not shown that he was substantially prejudiced by the delay.

Moreover, it is not a manifest abuse of discretion for a court to grant a continuance due to a prosecutor’s unavailability. State v. Williams, 104 Wn. App. 516, 523, 17 P.3d 648 (2001) (citing State v. Cannon, 130 Wn.2d 313, 326, 922 P.2d 1293 (1996)). Tomlin contends that the trial court erred in this case because it was not necessary for the prosecutor to attend CLE training. But in Torres, Division One held that the scheduled vacations of counsel or investigating officers are valid grounds for granting a continuance. 111 Wn. App. at 331. The purpose behind the rule that scheduled vacations may constitute good cause is to preserve the dignity of counsel or officers who might otherwise never be able to plan a vacation. Torres, 111 Wn. App. at 331. Previously scheduled out-of-town CLE trainings fall within this rule. It was not manifestly unreasonable for the trial court to grant a continuance due to the unavailability of material state witnesses or the prosecutor.

Furthermore, Tomlin has failed to present any evidence that the six-day continuance prejudiced the presentation of his defense. Accordingly, 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.

BRIDGEWATER and HOUGHTON, JJ., concur.