STATE v. PEREZ (2005)

PART PUBLISHED OPINION

 ¶ 1 Silvino Perez appeals his conviction for second degree theft, arguing that the trial court instructed on an uncharged alternative means.¹  Under State v. Linehan, 147 Wash.2d 638, 56 P.3d 542 (2002), Perez correctly argues that RCW 9A.56.020(1)(a) sets forth two alternative means for committing theft:  by wrongful obtainment and by exertion of unauthorized control.   Here, while only the first means was charged, the jury was  instructed on both.   We hold, however, that such error is harmless as a matter of law because both means share the same statutory definition.   We therefore affirm.

ANALYSIS

 ¶ 2 An accused must be informed of the criminal charges against him and he cannot be tried for an offense not charged.  State v. Irizarry, 111 Wash.2d 591, 592, 763 P.2d 432 (1988).   For that reason, the court may not instruct on an uncharged alternative means of committing a crime.  State v. Bray, 52 Wash.App. 30, 34, 756 P.2d 1332 (1988).   Such an error is presumed prejudicial unless it affirmatively appears that the error was harmless.  Bray, 52 Wash.App. at 34-35, 756 P.2d 1332;  see also State v. Severns, 13 Wash.2d 542, 549, 125 P.2d 659 (1942) (error may be harmless if in “subsequent instructions the crime charged was clearly and specifically defined to the jury”).

¶ 3 RCW 9A.56.020 reads in relevant part:

(1) “Theft” means:

(a) To wrongfully obtain or exert unauthorized control over the property or services of another or the value thereof, with intent to deprive him or her of such property or services.

The definitions of “to wrongfully obtain” and “exert unauthorized control” are the same and are set out at RCW 9A.56.010(19).²

 ¶ 4 Prior to Linehan, RCW 9A.56.020(1)(a) was considered to proscribe only one alternative means of committing theft.   See State v. Ager, 128 Wash.2d 85, 91, 904 P.2d 715 (1995);  State v. Stephenson, 89 Wash.App. 217, 222, 948 P.2d 1321 (1997);  State v. Vargas, 37 Wash.App. 780, 781-82, 683 P.2d 234 (1984).   Although wrongful obtainment and exertion of unauthorized control were separated by the conjunctive “or,” either was considered a means of “theft by taking.”  Stephenson, 89 Wash.App. at 222 n. 1, 948 P.2d 1321. Theft by taking was the statutory equivalent of common law larceny.  State v. Markham, 40 Wash.App. 75, 86, 697 P.2d 263, review denied, 104 Wash.2d 1003 (1985).

¶ 5 This changed in 2002, when the Washington Supreme Court issued its opinion in Linehan, 147 Wash.2d 638, 56 P.3d 542.   Before Linehan, it was the law of this State that there were four alternative means for committing theft:  (1) by taking;  (2) by embezzlement; ³  (3) by color or aid of deception, obtaining control; ⁴  and (4) by appropriating lost or misdelivered property or services.⁵  Ager, 128 Wash.2d at 91, 904 P.2d 715;  Stephenson, 89 Wash.App. at 222 n. 1, 948 P.2d 1321. But in Linehan, the court held that theft by embezzlement is not an alternative means of committing theft;  rather, embezzlement is but one way of committing theft by taking.   147 Wash.2d at 647-48, 56 P.3d 542.   And the court held that theft by taking has two alternative means:  theft by wrongful obtainment and theft by exertion of unauthorized control.  Linehan, 147 Wash.2d at 648-49, 56 P.3d 542.   The court noted that these two means share the same definition, RCW 9A.56.010(19), and that this definition does not create additional means of theft.  Linehan, 147 Wash.2d at 644-45, 649, 56 P.3d 542.

  ¶ 6 Here, Perez was charged with theft by wrongful obtainment.   But the court instructed the jury that it could find Perez guilty either of theft by wrongful obtainment or theft by exertion of unauthorized control.   This was error.  Bray, 52 Wash.App. at 34, 756 P.2d 1332.   Nonetheless, Perez cannot show prejudice.

 ¶ 7 As previously stated, theft by wrongful obtainment and theft by exertion of unauthorized control share the same statutory definition, RCW 9A.56.010(19).   As such, the two means are legally indistinguishable.   See Linehan, 147 Wash.2d at 651, 56 P.3d 542 (“What we find persuasive are the cases that have defined the alternative means of ‘wrongfully obtains' and ‘exerts unauthorized control’ as a unit.”).   If the jury found that Perez committed the theft by exertion of unauthorized control, the uncharged means, it necessarily found that Perez committed the theft by wrongful obtainment, the charged means.   Thus, as a matter of law, Perez was not prejudiced and he is not entitled to reversal of his second degree theft conviction.

¶ 8 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.

¶ 9 Having addressed Perez's alternative means challenge, we turn to the remaining assignments of error.   Perez maintains that his convictions for second degree theft and third degree malicious mischief must be reversed because of insufficient evidence, violations of his rights to silence and due process, prosecutorial misconduct, and ineffective assistance.   Perez also maintains that he was prejudiced in his defense of the malicious mischief count due to the State's amendment of the information at the close of its case. These claims require a recitation of facts.

FACTS

¶ 10 On the afternoon of February 11, 2004, Perez broke into a car at Centralia High School (CHS) and stole stereo equipment valued at $650.   Perez entered the car by breaking the passenger side window, causing damage of $110.95.   The car belonged to David Romans, the father of CHS student Dana Romans.

¶ 11 While walking through the CHS parking lot, a teacher saw a young Hispanic man, approximately 18 to 20 years of age, going through the trunk of Romans's car, with speakers sitting on the ground.   The teacher called for the CHS security guard and, while he was waiting, “a white car came flying out of the parking lot.”   1 Report of Proceedings (RP) at 34.   The teacher did not get a good look at the man and could not identify Perez at trial.

¶ 12 Another teacher also saw a Hispanic man going through the trunk of Romans's car with stereo equipment on the ground.   She saw a white four-door sedan, which she believed to be a Mazda 626, parked next to Romans's car.   The teacher also could not identify Perez at trial.

¶ 13 The CHS security guard, Timothy Fossett, testified that he saw a man, age 18 to 20, moving back and forth between Romans's car and a white car parked nearby.   Fossett yelled at the man and, as he got closer, the man jumped into the white car and sped away.   Fossett was unable to get a good look at the man, but he was able to write down the white car's license plate number.

¶ 14 Lewis County Deputy Anderson traced the license plate number to Perez, the registered owner of a white Mazda 626 sedan.   The following day, Deputy Anderson contacted Perez at his home.   Perez's physical appearance matched the description given by the CHS employees.   Deputy Anderson met Perez at the front door, told Perez that he was investigating a car break-in at CHS, and asked if Perez would be willing to answer some questions.   Perez agreed to talk.   Deputy Anderson asked Perez where he was the previous day at about 1 p.m., and Perez replied that he did not know.   Deputy Anderson then asked Perez whether it was possible that someone else may have been driving his car.   Perez said no, but then stated that he was not going to be a snitch.   At that point, Deputy Anderson placed Perez under arrest.   As the arrest occurred, Perez began asking questions and Deputy Anderson indicated that he could not respond unless Perez received Miranda6 warnings.   The record does not reflect what happened thereafter.

¶ 15 The State charged Perez with second degree theft and third degree malicious mischief.   At trial, Perez offered the testimony of Leticia Montenegro and Carla Arevalo, each of whom testified that Perez was with them around the time of the car break-in.   The jury found Perez guilty as charged.

ADDITIONAL ANALYSIS

Sufficiency of the Evidence

¶ 16 Perez first contends that the evidence was insufficient to support his convictions.   A challenge to the sufficiency of the evidence accepts as true the State's evidence and all reasonable inferences that can be drawn from it.   State v. Goodman, 150 Wash.2d 774, 781, 83 P.3d 410 (2004).   Evidence is accorded equal weight whether it be direct or circumstantial.  Goodman, 150 Wash.2d at 781, 83 P.3d 410.   Evidence is sufficient if, viewing the State's evidence in the light most favorable to the State, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt.  Goodman, 150 Wash.2d at 781, 83 P.3d 410.

Second Degree Theft

¶ 17 The jury heard the following evidence:  a man matching Perez's description was seen reaching inside Romans's vehicle;  stereo equipment was on the ground beside the man;  the man jumped into Perez's vehicle and sped away when the security guard approached;  Perez could not account for his whereabouts at the time of the theft when asked by Deputy Anderson;  Perez admitted that no one else had access to his vehicle;  and the stolen items exceeded $250.   Accepting this evidence as true, a rational jury could find that Perez committed second degree theft.   See RCW 9A.56.040.

Third Degree Malicious Mischief

¶ 18 Third degree malicious mischief requires proof of “[k]nowingly and maliciously caus[ing] physical damage to the property of another.”  RCW 9A.48.090(1)(a).   Here, the basis for the count was the damage to the passenger side window of Romans's car.   According to Perez, the evidence was insufficient to find that he maliciously caused the damage.   Perez argues that the damage to the car had nothing to do with malice toward its owner, but was simply a way of getting inside the car to steal stereo equipment.   This argument is not well taken.

¶ 19 “Malice” is defined as “an evil intent, wish, or design to vex, annoy, or injure another person.”  RCW 9A.04.110(12). “Malice may be inferred from an act done in wilful disregard of the rights of another, or an act wrongfully done without just cause or excuse.”  RCW 9A.04.110(12).   Perez's breaking of the passenger side window very clearly reflected an evil intent:  He damaged the window for the purpose of facilitating his theft, thereby reflected disdain for the rights of the car's owner.   See State v. Mahoney, 80 Wash.App. 495, 499, 909 P.2d 949 (1996).   The evidence presented was sufficient to find Perez guilty of third degree malicious mischief.

Perez's Statements to Deputy Anderson

¶ 20 Perez next assigns error to the trial court's admission of his statements to Deputy Anderson on the day of his arrest.   Perez contends that these statements were inadmissible because he had not been given Miranda warnings.   We disagree.

¶ 21 Due process requires Miranda warnings only when an individual is subject to a custodial interrogation by a state official.  State v. Heritage, 152 Wash.2d 210, 214, 95 P.3d 345 (2004).  “Custody” for Miranda purposes occurs when, from an objective standpoint, an individual's freedom is curtailed to a degree associated with formal arrest.  Heritage, 152 Wash.2d at 218, 95 P.3d 345. A custodial interrogation stands in contrast to a routine investigative encounter, which is presumptively temporary and brief, relatively less police dominated, and does not easily lend itself to deceptive interrogation tactics.  State v. Cunningham, 116 Wash.App. 219, 228, 65 P.3d 325 (2003).

¶ 22 The record before us reflects that the encounter between Deputy Anderson and Perez was entirely investigative in nature.   The encounter occurred at Perez's front door and only after Deputy Anderson indicated the nature of his visit and made a request for Perez to answer a few questions.   Deputy Anderson's questions were exploratory and lasted only a few minutes.   On these facts, Perez was not entitled to Miranda warnings, and his statements to Deputy Anderson were admissible.

Comment on Silence

¶ 23 It is well established that the State may not comment on the exercise of a defendant's right to remain silent.  State v. Easter, 130 Wash.2d 228, 236, 922 P.2d 1285 (1996).   A comment on a defendant's silence occurs when the silence is used to the State's advantage, either as substantive evidence of guilt or to suggest to the jury that the silence was an admission of guilt.   State v. Lewis, 130 Wash.2d 700, 707, 927 P.2d 235 (1996).   A comment, however, must be distinguished from a mere reference to either silence or to events that could lead to an inference that the defendant exercised his right to remain silent.   See State v. Sweet, 138 Wash.2d 466, 480-81, 980 P.2d 1223 (1999);  Lewis, 130 Wash.2d at 706-07, 927 P.2d 235.   An improper comment on the defendant's silence is reviewed under the constitutional harmless error test;  a mere reference to silence is not reversible absent a showing of prejudice. Sweet, 138 Wash.2d at 481, 980 P.2d 1223;  Lewis, 130 Wash.2d at 706, 927 P.2d 235 (“Most jurors know that an accused has a right to remain silent and, absent any statement to the contrary by the prosecutor, would probably derive no implication of guilt from a defendant's silence.”);   Easter, 130 Wash.2d at 242, 922 P.2d 1285.

¶ 24 According to Perez, his convictions must be reversed because Deputy Anderson commented on his right to remain silent when he testified as to their brief interaction at the time of arrest.   Perez contends that because the jury heard that Perez received Miranda warnings when he expressed a desire to talk, but then the jury did not hear about any statements having been made, it must have inferred that Perez invoked his right to silence.   This argument is not well taken.

¶ 25 Here, Deputy Anderson did not testify that Perez refused to talk or that Perez invoked his right to remain silent.   While Deputy Anderson's testimony did permit the jury to infer that Perez invoked his constitutional rights, such testimony was, at best, a mere reference to silence from which no prejudice can be discerned.   See Sweet, 138 Wash.2d at 481, 980 P.2d 1223 (no comment where officer testified that defendant agreed to give a written statement and take a polygraph test after consulting with his attorney, but the jury heard no testimony about a polygraph test or statement having occurred);  Lewis, 130 Wash.2d at 706-07, 927 P.2d 235 (officer did not comment on the defendant's silence when he testified about offering to meet if the defendant was innocent but did not testify about a meeting having been set or conducted);  State v. Henderson, 100 Wash.App. 794, 799, 998 P.2d 907 (2000) (officer did not comment on the defendant's silence where he testified about asking the defendant if he could record their conversation but did not testify about a conversation having occurred).   Accordingly, this assignment of error fails.

Amendment of the Information

¶ 26 Perez also assigns error to the trial court's decision permitting the State to amend the information at the end of its case in chief.   Absent substantial prejudice to the defendant, which the defendant bears the burden of demonstrating, the State may amend the charging document to correct a defect at any time before the State rests its case.  State v. Phillips, 98 Wash.App. 936, 940-41, 991 P.2d 1195 (2000).

¶ 27 The State's amendment, which related to the malicious mischief count, simply changed ownership of the car that Perez damaged from Dana Romans to his father.   Malicious mischief requires only that the damaged property be owned by one other than the defendant.  RCW 9A.48.090(1)(a).   This requirement was satisfied prior to and after the State's amendment;  it was never disputed that the car Perez allegedly broke into was not his own or that he did not have the owner's permission to break into it.   As such, the State's amendment did not prejudice Perez's defense.   Perez's argument fails accordingly.

Prosecutorial Misconduct

¶ 28 Lastly, Perez maintains that the prosecutor committed misconduct by (1) threatening to use Perez's criminal history for impeachment purposes after indicating that he would not do so;  (2) maintaining that vehicle prowling is a crime of dishonesty that could be used to impeach Perez;  (3) misrepresenting evidence in closing argument;  and (4) offering a personal opinion as to Perez's guilt.   We address these assertions in turn.

¶ 29 During pretrial conference, the prosecutor indicated that Perez would not be impeached with prior crimes if he took the stand because the prosecutor believed that Perez had no adult convictions.   When the prosecutor learned that Perez had adult convictions for theft and vehicle prowling, he called defense counsel to indicate that these crimes would be used if Perez testified.   The prosecutor did not commit misconduct here.

¶ 30 That the prosecutor was originally mistaken about Perez's criminal history does not mean that he committed misconduct;  the record here reflects only an honest oversight.   And while Perez contends that he relied on the prosecutor's pretrial assurance in planning his defense, it was undisputed that Perez received a copy of his criminal history in discovery.   Further, contrary to Perez's contentions, his theft and vehicle prowling convictions could be used for impeachment purposes under ER 609(a).   See State v. Teal, 117 Wash.App. 831, 843, 73 P.3d 402 (2003), aff'd, 152 Wash.2d 333, 96 P.3d 974 (2004).   We reject Perez's first two claims of prosecutorial misconduct.

¶ 31 Turning then to the prosecutor's alleged misstatement of the evidence in closing, Perez cites the following passage:

Leticia Montenegro said she saw [Perez] about 1 o'clock.   She said on or about, you know, approximately 12:40-give or take I think is [sic] the words that she used, wasn't quite sure-he left.   But she wasn't sure about the date, whether it was February 11th.   She says that the defendant comes over there a bit, not a lot but enough, but she wasn't sure about the date, calling into question whether or not her testimony is actually that credible.

Carla Arevalo testified that he arrived about 1:10 more or less.   So if we were to believe Ms. Montenegro, whether or not she got the date right, and Ms. Arevalo, 12:40 to 1:10 or maybe a longer period of time he was unaccounted for.   Where was he?   Nobody knows.

2 RP at 133-34.   Contrary to Perez's position, this argument accurately characterized the testimony.   Montenegro testified that Perez came to her house “more or less” around 12 p.m. and left “around 12:40, 12:45” on a day that might have been February 11.   2 RP at 110-12.   Arevalo testified that Perez arrived at her house on February 11 “[a]bout five, ten [minutes], more or less” after 1 p.m. 2 RP at 115.

¶ 32 Lastly, as to an improper opinion of Perez's guilt, Perez points to the following remark:  “So based on this evidence, ladies and gentlemen, I believe that beyond a reasonable doubt Mr. Perez should be convicted of malicious mischief in the third degree and theft in the second degree.”   2 RP at 128.   We agree with Perez that the prosecutor's use of “I believe” may have conveyed an improper personal opinion as to guilt.  State v. Dhaliwal, 150 Wash.2d 559, 577, 79 P.3d 432 (2003).   But defense counsel did not object and, because a curative instruction would have remedied the error, this claim must fail.   State v. Jerrels, 83 Wash.App. 503, 508, 925 P.2d 209 (1996).7

¶ 33 Affirmed.

FOOTNOTES

1.   Perez also appeals a conviction for third degree malicious mischief.   We address the issues pertaining to that conviction, as well as several additional issues pertaining to Perez's theft conviction, in the unpublished portion of this opinion.

2.   RCW 9A.56.010(19) provides:“Wrongfully obtains” or “exerts unauthorized control” means:(a) To take the property or services of another;(b) Having any property or services in one's possession, custody or control as bailee, factor, lessee, pledgee, renter, servant, attorney, agent, employee, trustee, executor, administrator, guardian, or officer of any person, estate, association, or corporation, or as a public officer, or person authorized by agreement or competent authority to take or hold such possession, custody, or control, to secrete, withhold, or appropriate the same to his or her own use or to the use of any person other than the true owner or person entitled thereto;  or(c) Having any property or services in one's possession, custody, or control as partner, to secrete, withhold, or appropriate the same to his or her use or to the use of any person other than the true owner or person entitled thereto, where the use is unauthorized by the partnership agreement.

3.   Theft by embezzlement derived from a joint reading of RCW 9A.56 .020(1)(a) and former RCW 9A.56.010(7) (1998), recodified as RCW 9A.56.010(19)(b).  See Vargas, 37 Wash.App. at 781-82, 683 P.2d 234.

4.   RCW 9A.56.020(1)(b).

5.   RCW 9A.56.020(1)(c).

FN6. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)..  FN6. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

FN7.  Perez also argues that defense counsel was ineffective for not objecting.   Such a claim requires deficient performance that was prejudicial.  Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).   Prejudice requires a reasonable probability that the outcome would have differed but for the deficient representation.  Strickland, 466 U.S. at 687, 104 S.Ct. 2052.   Here, prejudice cannot be found:  the prosecutor's statement was fleeting and the jury, even without a requested curative instruction from defense counsel, was instructed that it was the sole judge of credibility and the weight to be given the evidence..  FN7.  Perez also argues that defense counsel was ineffective for not objecting.   Such a claim requires deficient performance that was prejudicial.  Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).   Prejudice requires a reasonable probability that the outcome would have differed but for the deficient representation.  Strickland, 466 U.S. at 687, 104 S.Ct. 2052.   Here, prejudice cannot be found:  the prosecutor's statement was fleeting and the jury, even without a requested curative instruction from defense counsel, was instructed that it was the sole judge of credibility and the weight to be given the evidence.

QUINN-BRINTNALL, C.J.