                                                                                                               FILED
                                                                                                     COURT OF APPEALS
                                                                                                         D V?S! 0NN 11

                                                                                                   2515 JUN - 14       AM 8: 35
                                                                                                   STA                 SHINGTOH

                                                                                                    BY
       IN THE COURT OF APPEALS OF THE STATE OF WASHI

                                                        DIVISION II


 STATE OF WASHINGTON,                                                                    No. 45488 -2 -II


                                            Respondent,


            v.

                                                                                UNPUBLISHED OPINION
 JASON SCOTT CAMPBELL,


                                            Appellant.


         SUTTON, J. —            Jason Scott Campbell appeals his convictions for one count of second degree


trafficking in         stolen   property    and    two counts of bail      jumping.      He argues that the trial court


 1) misstated the " reckless" element of the second degree trafficking jury instruction, (2) erred by

instructing      the   jury    on second    degree trafficking, ( 3)      violated his right to control his defense by

instructing      the   jury    on    uncontrollable circumstances, (       4) abused its discretion by instructing the

jury   on     missing     witnesses, (     5)    improperly commented on the evidence in answering a jury

question, and ( 6) violated his right to counsel by denying his counsel' s motion to withdraw.

Holding that ( 1) the trial court correctly stated the " reckless" element of second degree trafficking

in   stolen   property, ( 2)         Campbell waived his objection to giving the second degree trafficking in

stolen   property instruction, ( 3)             the trial court did not violate his right to control his defense by

instructing      the    jury    on uncontrollable circumstances, (          4) the trial court abused its discretion in


instructing      the   jury     on   missing    witnesses,   but that   error was   harmless, ( 5) the trial   court   did   not
No. 45488 -2 -II




improperly comment on the evidence, and ( 6) the trial court did not violate Campbell' s right to

counsel, we affirm.



                                                    FACTS


                          I. STOLEN TIRES LISTED FOR SALE ON CRAIGSLIST


          While browsing Craigslist for automobile parts, Matthew Knowlton found a for -sale

advertisement listing four tires and wheels he recognized as his personal property that had been

stolen   the week before.     Knowlton texted the phone number listed on the advertisement and


contacted law enforcement. After deputy Sonya Matthews spoke with Knowlton, she went to the

address   that Knowlton     received    from the   seller,   but   no one was   home   when she   arrived.   She


noticed, however, that the house across the street matched the background in the picture of the

tires and wheels included in the Craigslist advertisement; she was unable to contact anyone at that

house, either.


          The next day, Matthews returned to the house that matched the Craigslist picture and spoke

with Jason Campbell. Matthews asked Campbell if he knew anything about stolen tires and wheels

for sale on Craigslist, and he replied that he did not know anything. Campbell brought out a set of

tires and wheels from the garage for Matthews to examine, saying those were the only tires and

wheels on    the property.    Believing those tires were Knowlton' s stolen property, Matthews read
                 Mirandal
Campbell the                 warning.


          Campbell continued to deny knowing about the stolen tires and wheels, but said that he

could "   probably find something        out"   from his     cousin,   Michael Smith.     Verbatim Report of




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


                                                         2
No. 45488 -2 -II



Proceedings ( VRP) ( Oct. 8, 2013)             at   80.   This seemed suspicious to Matthews, so she arrested


Campbell.        With Campbell secured in her patrol car, Matthews looked closely at the tires and

determined that they were not Knowlton' s stolen property. Matthews then spoke to Campbell and

told him that she " was convinced" he knew more than he was saying because the background of

the   picture    on    the Craigslist     advertisement matched        his property.    VRP ( Oct. 8, 2013) at 81.


Campbell admitted that Smith had brought tires and wheels to his house and Campbell' s neighbor


had offered to sell them on Craigslist. Campbell told Matthews " he was pretty sure that they were

stolen,"   because Smith had been involved in theft before, but Campbell did not ask where Smith

got them. VRP ( Oct. 8, 2013) at 81.


           The State charged Campbell with one count of second degree trafficking in stolen property.

The State later amended the information to increase Campbell' s charge to first degree trafficking

in stolen property and also charged Campbell with two counts of bail jumping after he failed to

appear at two court hearings.

                                                          II. TRIAL


           Before trial, defense         counsel moved     to withdraw.      Defense counsel asserted a conflict of


interest with Campbell because defense counsel' s law partner represented Smith on an unrelated

misdemeanor           traffic   crime.   Defense counsel explained that if Smith were called as a witness in

Campbell'       s case   defense    counsel " might get    to   sensitive   information."   VRP ( July 22, 2013) at 5.

However, he did not have specific information in mind. The trial court did not make a conflict of


interest finding and denied defense counsel' s motion to withdraw.




                                                                3
No. 45488 -2 -II




                      A. Second Degree Trafficking in Stolen Property Jury Instruction

            The State proposed a jury instruction on second degree trafficking in stolen property as a

lesser included       offense.     The trial   court asked     if Campbell         objected and     Campbell      replied, "   Your


Honor, there is       objection... [     Campbell'      s]   position   is it' s   all or   nothing."   VRP ( Oct. 9, 2013) at


222 -23.     The trial court instructed the jury on second degree trafficking in stolen property.

            The " to     convict"    instruction provided that Campbell was guilty of second degree

trafficking in stolen property if the State proved beyond a reasonable doubt that Campbell

 1) "    trafficked in   stolen   property," ( 2) "    acted   recklessly," and ( 3) the acts occurred in the state of


Washington. Clerk'          s   Papers ( CP)   at   41. The instructions defined recklessly             as   follows: " A person


         acts recklessly when he or she knows of and disregards a substantial risk that a wrongful act

may occur and this disregard is a gross deviation from conduct that a reasonable person would

exercise     in the   same situation."     CP at 40.


                      B. Uncontrollable Circumstances and Missing Witness Instruction

            When Campbell took the stand, defense counsel asked Campbell why he failed to appear

at      the two court    hearings   related    to his bail   jumping      charges.          The State objected and Campbell


provided an offer of proof outside of the jury' s presence. Campbell explained that he had arranged

for first his friend and then his mother to drive him to court because he did not have a driver' s

license. In both instances, the person did not arrive. Campbell received a ride from a teacher at a

nearby elementary school one time and walked to court the other tune, but each day he arrived at

court after the hearing had already ended.

             The trial court ruled that if Campbell presented this testimony to the jury, the trial court

             instruct the                the                                                 affirmative     defense.   Campbell
would                       jury    on         uncontrollable         circumstances




                                                                  4
No. 45488 -2 -II



testified in front of the jury consistent with his offer of proof, and the trial court instructed the jury

on uncontrollable circumstances.              CP     at   46 ( " An `uncontrollable circumstance' means an act of


nature such as a       flood,   earthquake, or      fire ...    or an act of man such as an automobile accident. ").



The trial court also instructed the jury on missing witnesses over Campbell' s objection, reasoning

that it was " only fair ",to the State to do so because Campbell had given testimony about two people

who had failed to give him a ride to court but did not call them as witnesses. VRP ( Oct. 9, 2013)

at 227.


                                                      C. Jury Question

           During deliberations, the jury sent a question to the trial court:

           Instruction 15 [2] says trafficking in stolen property in the second degree is a class
           C  felony. Is trafficking in stolen property in the first degree a class B or class C
           felony? We' re confused because Instruction No. 10[ 3] says [ Campbell] is charged
           with one count of trafficking in stolen property in the first degree, while the felony
           complaint     and     information        seem       to   show   that [ Campbell]   is   charged with

           trafficking in stolen property in the second degree.

CP   at   50.   The parties discussed the State' s original charging document, which reflected a charge

of second degree trafficking in stolen property, but was later amended to first degree trafficking in

stolen property and that the jurors probably perceived this as conflicting information.

           The trial   court read aloud       its   proposed answer: "        The original complaint and information


was for trafficking in the second degree, the amended information has been filed. The defendant

is currently charged with trafficking in the first degree, each of the charges [ are] either a Class B


2
    Instruction 15     provided    that "[   t] rafficking in Stolen Property in the Second Degree is a class
C   felony."     CP at 43.

3
    Instruction 10     provided    that "[   t]he defendant is charged in count one with trafficking in stolen
property in the first degree."         CP at 38.



                                                                    5
No. 45488 -2 -II



or   Class C   felony." VRP (Oct. 9, 2013) at 267 -68. The trial court believed that its answer helped

 clarify the confusion they see with one exhibit which had the original complaint and information."

VRP ( Oct. 9, 2013)    at   268. Campbell   stated   in   response, "   Your Honor, I' m proposing that we just

indicate to them that they have the law and the instructions as given to them and they should

decide."    VRP ( Oct. 9, 2013)   at   269. The trial court replied that Campbell' s suggestion was " the


easy way out, but I don' t feel comfortable when [ the jurors] raise a specific issue that is legal in

nature as opposed     to   potential comment on      the   evidence."    VRP ( Oct. 9, 2013)   at   269.   The trial


court answered the jury' s question as it had proposed.

         The jury did not reach a verdict on first degree trafficking in stolen property, but found

Campbell guilty of second degree trafficking and both counts of bail jumping. Campbell appeals.

                                                 ANALYSIS


                                   I. RECKLESSNESS JURY INSTRUCTION


           Campbell argues that the jury instruction defining recklessness misstated an element of

second degree trafficking because it did not require the jury to find that Campbell acted recklessly

in relation to a specific crime.4 We disagree.




4 The State argues that we should not review this claim of error because Campbell did not preserve
it   with an adequate objection.       Because it is reversible error to give the jury an instruction that
relieves the State of its burden to prove every element beyond a reasonable doubt, Campbell may
challenge the jury instruction for the first time on appeal. State v. Peters, 163 Wn. App. 836, 847,
261 P. 3d 199 ( 2011).        Thus, we do not address the State' s argument that Campbell failed to
properly object.


Because the to- convict jury instruction given by the court was correct, it is not necessary to address
Campbell' s other arguments attacking this jury instruction.


                                                           6
No. 45488 -2 -II




          We review legal sufficiency of jury instructions de novo. State v. Walker, 182 Wn.2d 463,

481, 341 P. 3d 976 ( 2015),       petition for cert. filed,        (Apr. 22, 2015).    Jury instructions are insufficient

if they relieve the State of its burden to prove every essential element ofthe charged crime. Walker,

182 Wn.2d        at   481.   If a to- convict instruction includes every element that the State must prove

beyond      a reasonable      doubt, the     generic      instruction    defining   recklessness   is   sufficient.   State v.


Johnson, 180 Wn.2d 295, 306 -07, 325 P. 3d 135 ( 2014). 5 The to- convict instruction in this case

satisfies the rule in Johnson.


          A person commits second degree trafficking in stolen property when he or she " recklessly
                                     6
traffics in   stolen    property. "       RCW 9A. 82. 055( 1).          Here, the trial court instructed the jury that a

person acts " recklessly" when he or she knows of and disregards " a substantial risk that a wrongful

act   may   occur."     CP at 40. The to- convict instruction told the jury that it must find Campbell guilty

if it found that ( 1) Campbell trafficked in              stolen   property, ( 2)   he acted recklessly, and ( 3) the acts

occurred in the state of Washington. Under these circumstances, the specific act of trafficking in

stolen   property      was   the only     element    to   which    the term " recklessly"   could   have    referred.   As in


Johnson, the to- convict instruction accurately informed the jury of every element necessary to find

Campbell culpable of second degree trafficking in stolen property. Johnson, 180 Wn.2d at 306.

Thus, the jury instructions did not relieve the State of its burden of proof.



5 Prior opinions from our Courts of Appeal have held that a recklessness instruction must mention
the specific crime that the defendant disregarded a substantial risk of occurring, rather than merely
a " wrongful act" occurring. Peters, 163 Wn. App. at 847; State v. Harris, 164 Wn. App. 377, 383,
263 P. 3d 1276 ( 2011).

6
    A   person   acts   recklessly       when   he   or she "   knows of and disregards a substantial risk that a
wrongful act may occur" and " disregard of such substantial risk is a gross deviation" from how a
reasonable person would act in the same situation. RCW 9A.08. 010( 1)( c).


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No. 45488 -2 -II



             II. SECOND DEGREE TRAFFICKING IN STOLEN PROPERTY JURY INSTRUCTION


          Campbell next argues that the trial court erred in instructing the jury on second degree

trafficking because the evidence at trial did not support a jury finding that he acted recklessly as is

required to convict him of second degree trafficking, a lesser included offense. Because we hold

that Campbell did not properly preserve the error, we do not reach this issue.

          We may decline to review a claim of error that was not raised in the trial court, unless the

error was manifest and affected a constitutional right.                 RAP 2. 5(   a).    The purpose of this rule is to


allow the opposing party to respond to the claim of error and give the trial court the opportunity to

correct   it. State   v.   Davis, 175 Wn.2d 287, 344, 290 P. 3d 43 ( 2012), cent. denied, 134 S. Ct. 62


 2013).    Campbell'       s objection,   that his   case was " all or   nothing," did not advise the trial court of


the basis   on which       he   now claims error:        insufficient   evidence    to    support   the instruction.   VRP


 Oct. 9, 2013)   at   223.      Campbell' s objection did not provide the State an opportunity to respond to

the claim of insufficient evidence or allow the trial court to consider it. Therefore, Campbell did

not preserve the error for review on appeal.


          Furthermore, Campbell              cannot    show   that the    error   is     a "   manifest error affecting a


constitutional   right."        RAP 2. 5(   a).   A jury may find a criminal defendant guilty of any inferior

degree of the charged crime. RCW 10. 61. 003. RCW 10. 61. 003 provides criminal defendants with

sufficient constitutional notice of the crimes of which they may be convicted. State v. Berlin, 133

Wn.2d 541, 545, 947 P. 2d 700 ( 1997).               Thus, the trial court' s decision to instruct the jury on second

degree trafficking in stolen property is not of constitutional magnitude. Because Campbell raises

this claim of error for the first time on appeal, we decline to review its merits.




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No. 45488 -2 -II




                       III. UNCONTROLLABLE CIRCUMSTANCES AFFIRMATIVE DEFENSE


            Campbell next argues that the trial court violated his right to control his defense when it

instructed the jury      on uncontrollable circumstances over            his   objection.   We disagree.


            An accused has the right to control his or her defense under the Sixth Amendment. State

v.   Lynch, 178 Wn.2d 487, 491, 309 P. 3d 482 (2013).                Instructing the jury on an affirmative defense

over the defendant' s objection violates the Sixth Amendment when imposing the affirmative

defense .infringes      upon       the defendant'   s "'   independent autonomy [ he or she] must have to defend

against charges. "'      Lynch, 178 Wn.2d at 493 ( quoting State v. Coristine, 177 Wn.2d 370, 377, 300

P. 3d 400 ( 2013)).      We review constitutional violations de novo. Lynch, 178 Wn.2d at 491.


            Jury instructions must properly inform the jury of the law, allow each party to argue its

case theory, and may not mislead the jury. State v. McCreven, 170 Wn. App. 444, 462, 284 P. 3d

793 ( 2012).       A jury instruction that fails to make the applicable legal standard manifestly apparent

to the average juror amounts to a constitutional error that is presumed prejudicial. McCreven, 170


Wn. App. at 462.

            When Campbell took the stand, defense counsel asked Campbell why he had not arrived

at   his   court   hearings   on   time.   The State objected and, in Campbell' s offer of proof, he explained


that he arrived late on both days because his friend and mother had failed to give him a ride as




7 Campbell argues that the trial court' s instruction on uncontrollable circumstances also violated
his right to counsel. Because we hold that the trial court did not err, we do not address Campbell' s
Sixth Amendment argument on this issue.


                                                                 9
No. 45488 -2 -I1




they had   agreed.     The trial court ruled that Campbell could testify to this information, but if

Campbell did testify as to his reasons for not being at his court hearings, the jury would be

instructed on the only defense to bail jumping: uncontrollable circumstances. Campbell chose to

testify as he wished with full knowledge that the trial court would instruct the jury as it informed
Campbell it would. Under these facts, the trial court did not infringe upon Campbell' s independent


dignity and autonomy to control his defense. Lynch, 178 Wn.2d at 493.

        Furthermore, once Campbell elected to testify as he wished, the trial court was required to

instruct the jury on uncontrollable circumstances so as to not allow the jury to be misled.

McCreven, 170 Wn. App. at 462. Without the affirmative defense instruction, the jury instruction

on bail jumping would have misled the jury to believe that Campbell' s reason for not appearing

excused    his   absence.    The trial court did not violate Campbell' s right to control his defense by

instructing the jury on uncontrollable circumstances.

                                 IV. MISSING WITNESS JURY INSTRUCTION


        Campbell argues that the trial court abused its discretion in giving a missing witness jury

instruction.     The missing witness jury instruction permitted the jury to infer that Campbell' s

friend' s and mother' s testimony, the two people who were supposed to drive him to his court

hearings, would have been damaging because if their testimony would have been favorable to him,
                                                    8
he   would   have   called   them   as witnesses.       The trial court abused its discretion in giving this

instruction, but the error was harmless.




8 The missing witness instruction provided that:
        If a person who could have been a witness at the trial is not called to testify, you
        may be able to infer that the person' s testimony would have been unfavorable to a
        party in the case. You may draw this inference only if you find that:

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No. 45488 -2 -II



            We review the trial court' s decision to give a specific instruction for abuse of discretion.

In   re   Det.    ofAlsteen,   159 Wn.     App.     93, 99, 244 P. 3d 991 ( 2010). A trial court abuses its discretion


when       it   applies an   incorrect legal    analysis.    State v. Tobin, 161 Wn.2d 517, 523, 166 P. 3d 1167


 2007).         Jury instructions are sufficient if substantial evidence supports them, they allow the parties

to argue their theories of the case, and they properly inform the jury of the applicable law. State

v. Clausing, 147 Wn.2d 620, 626, 56 P. 3d 550 ( 2002).

                Here, Campbell does not argue that the language of the missing witness instruction was

legally incorrect; rather, he argues that the trial court incorrectly gave the missing witness

instruction because the facts did               not permit application      of   the missing   witness   doctrine.   The


missing witness doctrine allows the jury to infer that a witness' s testimony would have been

damaging where it would be natural for a party to produce a witness because the facts known to

the   witness would          be favorable but that party fails to do       so.   State v. Blair, 117 Wn.2d 479, 488,


816 P. 2d 718 ( 1991).            This inference is not permitted, however, if (1) the testimony would be

cumulative or unimportant, (2) the witness' s absence is satisfactorily explained, or ( 3) the witness

is equally         available   to both   parties.    State v. Montgomery, 163 Wn.2d 577, 598 -99, 183 P. 3d 267




                 1) The witness is within the control of, or peculiarly available to, that party;
                 2) The issue on which the person could have testified is an issue of fundamental
                importance, rather than one that is trivial or insignificant;
                 3) As a matter of reasonable probability, it appears naturally in the interest of that
                party to call the person as a witness;
                 4) There is no satisfactory explanation of why the party did not call the person as
                a witness; and

                 5) The inference is reasonable in light of all the circumstances.
CPat47.



                                                                 11
No. 45488 -2 -II




 2008).   Where the inference is permitted, the party against whom the rule operates has the burden

of explaining the witness' s absence. Blair, 117 Wn.2d at 489.

          Campbell testified that he did not appear in court after Campbell' s friend and mother failed

to give him a ride. Because neither Campbell' s friend nor his mother testified, the trial court gave

a   missing   witness    instruction.   However, the State did not have an opportunity to interview

Campbell before trial due to his Fifth Amendment right against self incrimination.
                                                                    -              Thus, the State

did not have equal access to subpoena Campbell' s friend and mother because it did not know the

witnesses' names until Campbell testified.


          But these witnesses were immaterial, and according to the State, Campbell' s testimony

about   his   rides was   irrelevant to the bail   jumping    charge.   If Campbell' s testimony was not a

defense to bail jumping, neither could his friend' s nor his mother' s testimony operate as a defense.

The State does not explain how these witnesses would have been helpful to Campbell' s defense

and   instead   relies   on   its argument that the   witnesses were not   equally   available.   The missing

witness doctrine, however, does not employ a factor test as the State' s argument suggests; the party

asserting the missing witness doctrine must satisfy all three prongs of the test stated in Blair. Blair,

117 Wn.2d at 488 -89; Montgomery, 163 Wn.2d at 598 -99. Because Campbell testified to the same

events that his friend and mother would have presumably testified to as well, their testimony would

have been both cumulative to Campbell' s testimony and immaterial to Campbell' s defense to the

bail jumping charges. Thus, the trial court abused its discretion by instructing the jury on missing

witnesses.




          Although the trial court abused its discretion in giving the missing witness jury instruction,

any error was harmless. An erroneous instruction is harmless if,based on the facts of the particular


                                                         12
No. 45488 -2 -II



case, it appears beyond a reasonable doubt that the error did not contribute to the jury' s verdict.

Montgomery,       163 Wn.2d         at   600.   To prove bail jumping, the State must have proved that ( 1)

Campbell knew         about   the   requirement    to   appear and ( 2)   he failed to do   so.   RCW 9A.76. 170( 1).


The trial court instructed the jury that it must find both of these elements of the crime beyond a

reasonable doubt and Campbell admitted that he knew he was required to come to court on a


particular date and that he failed to do so. 9 Even if the trial court had not given the missing witness

instruction, there is no likelihood that it contributed to the jury' s verdict. Any error in giving the

missing witness instruction was harmless.

                               V. TRIAL COURT' S RESPONSE TO JURY QUESTION


         Campbell argues that the trial court improperly commented on the evidence in its answer

to the jury' s question. We disagree.

                                              A. Campbell Properly Objected

         The State argues that Campbell did not preserve this issue for appeal because he did not

            object,   citing State       v.   Cordero, 170 Wn.     App.    351, 371, 284 P. 3d 773 ( 2012).        We
properly


disagree.




9 The to convict instruction required the jury to find four elements beyond a reasonable
doubt:

            1) That on or about January 28th, 2013, the defendant failed to appear before a
         court;


           2) That the defendant was charged with a class B or class C felony;
           3) That the defendant had been released by court order with knowledge of the
         requirement of a subsequent personal appearance before that court; and
           4) That the acts occurred in the State of Washington.

CP at 44. Elements two and four were undisputed at trial.



                                                              13
No. 45488 -2 -II



            In Cordero, the defendant did not preserve error when he failed to specifically object to the

trial court' s   proposed     answer   and,   instead,   proposed a     different    answer.    Cordero, 170 Wn. App.

at   371.    The record here is distinguishable from Cordero because the context of Campbell' s

discussion with the trial court and the State makes it clear that the trial court understood the nature


of Campbell' s objection.


            After the trial   court read aloud    its   proposed answer     to the   jury' s   question,   the State    said, "   I


agree.      That' s fine."    VRP ( Oct. 9, 2013)         at   268.   Campbell   immediately        replied, "    Well, Your


Honor,      you read   them the    charges against       the defendant."     VRP ( Oct. 9, 2013)           at   268.   The trial


court and the parties then discussed the jury' s confusion and the evidence presented to the jury.

During this colloquy, the trial court twice acknowledged that the basis of Campbell' s objection

was to prevent a comment on the evidence. Campbell then proposed an answer at the trial court' s


urging.      VRP ( Oct. 9, 2013)       at   269 ( " The Court: [ Defense       counsel],       any association with you?


 Defense       counsel]:     Your Honor, I' m proposing that we just indicate to them that they have the

law and the instructions as given to them and they should decide. ").

            Campbell' s colloquy with the trial court made it clear that he disagreed with the trial court' s

answer to the jury' s question and that the trial court understood the reason for his objection.

Campbell properly objected.

                                 B. Trial Court Did Not Comment on Evidence


            Campbell argues that the trial court commented on the evidence by telling the jury that the

second degree trafficking in stolen property charge against Campbell had been amended to first

degree trafficking in stolen property and explaining that first degree trafficking was a class B

felony. We hold that the trial court did not improperly comment on the evidence.


                                                                14
No. 45488 -2 -II




          The trial court may give the jury additional instructions on a point of law according to its

discretion. State        v.   Kindell, 181 Wn.    App.   844, 850, 326 P. 3d 876 ( 2014). The trial court cannot


answer jury questions in a way that relieves the State of its burden of proof or add a new legal

theory that the parties did not have an opportunity to argue. Kindell, 181 Wn. App. at 850; State

v.   Becklin, 163 Wn.2d 519, 529, 182 P. 3d 944 ( 2008).                  We review the legal accuracy of the trial

court' s jury instructions de novo. Kindell, 181 Wn. App. at 850.

          The to- convict instruction for the first count of bail jumping in this case required the State

to prove that Campbell was charged with a " class B or class C felony" at the time he did not appear

for his         hearing. 10 CP at 44. The jury' s original instructions did not inform the jury whether
          court .




first degree trafficking in stolen property, Campbell' s charge at trial, was a class B or class C

felony; the jury was instructed only that second degree trafficking in stolen property, Campbell' s

charge when         he   missed   two   court   hearings,   was a class   C   felony.   The trial court admitted as an


exhibit the State' s original felony complaint and information that listed Campbell' s original charge

of second degree trafficking in stolen property, but the jury was not given information that this

charge had been amended to first degree trafficking in stolen property. In its answer to the jury' s

inquiry about this discrepancy, the trial court told the jury that an amended information had been

filed and Campbell was currently charged with first degree trafficking in stolen property.

          This answer was not a comment on the evidence because the trial court' s answer to the jury

merely     clarified     confusion      on   a procedural    issue.   The State presented evidence at trial that


Campbell was charged with second degree trafficking and that he failed to appear at two court




1° In contrast, the to- convict instruction for the second count of bail jumping required proof that
Campbell was charged with a class C felony at the time he failed to appear.

                                                               15
No. 45488 -2 -II




hearings. The trial court instructed the jury that Campbell' s charge at the time he failed to appear

was a class C felony, but the to- convict instruction for Campbell' s first count of bail jumping stated

the elements for first degree trafficking in stolen property. Informing the jury of the amendment

of Campbell' s charge from second to first degree trafficking in stolen property did not relieve the

State of its burden to prove each element of the crimes charged nor did it add a new legal theory

the parties     did   not   have   an    opportunity to   argue.    Thus, the fact that Campbell' s charge was


amended does not amount to a new theory of culpability and it did not change any element that the

State   was    required     to   prove   beyond   a reasonable     doubt.   The trial court' s answer was not an


improper comment on the evidence.

                                 VI. DEFENSE COUNSEL' S MOTION TO WITHDRAW


            Lastly, Campbell argues that the trial court improperly denied his counsel' s motion to

withdraw because defense counsel' s duty of loyalty was likely to be materially limited due to

defense counsel' s firm' s responsibilities to Smith, who was a potential defense witness. The trial


court properly denied defense counsel' s motion to withdraw because he did not present an actual

conflict of interest.


            The Sixth Amendment guarantees the right to effective assistance of counsel. U. S. CONST.


amend.      VI; In   re   Pers. Restraint of Gomez, 180 Wn.2d 337, 348, 325 P. 3d 142 ( 2014). This right


includes the right to conflict -free counsel at all critical stages of prosecution. Gomez, 180 Wn.2d

at   348.    We review de novo whether a conflict of interest precludes continued representation.


Gomez, 180 Wn.2d at 347.


            The trial court has a duty to investigate potential conflicts of interest when it knows or

reasonably      should      know   of a conflict of   interest between      counsel and   his   or   her   client.   State v.




                                                             16
No. 45488 -2 -II




Regan, 143 Wn.       App.    419, 425 -26, 177 P. 3d 783 ( 2008).           When a defendant or attorney alerts the

trial court to a conflict, the trial court must appoint substitute counsel or take " adequate steps" to

determine whether the risk of a conflict of interest is too remote to require substitute counsel.


Holloway    v.   Arkansas, 435 U. S. 475, 484, 98 S. Ct. 1173, 55 L. Ed. 2d 426 ( 1978).                   On appeal, a


defendant must demonstrate that an actual conflict of interest adversely affected trial counsel' s

performance.       State    v.   Dhaliwal, 150 Wn.2d 559, 570, 79 P. 3d 432 ( 2003).                 A defendant must


show how concurrent representation affects trial counsel' s performance. Dhaliwal, 150 Wn.2d at

573.   If two matters in an alleged conflict are not substantially related, we will not presume that

confidential information was disclosed requiring disqualification. State v. Hunsaker, 74 Wn. App.

38, 47, 873 P. 2d 540 ( 1994).


        Here, defense counsel moved to withdraw, claiming a conflict of interest, because his firm

represented      Smith   on a    factually     unrelated misdemeanor       traffic   offense.   The trial court inquired


into defense counsel' s asserted conflict of interest. Defense counsel told the trial court that he did


not have any information that would lead to uncovering sensitive information from Smith. Thus,

the trial court found the record insufficient to find a conflict. The trial court did not err in denying

defense counsel' s motion to withdraw.


          We hold that ( 1) the trial court correctly stated the " reckless" element of second degree

trafficking in     stolen    property, (      2) Campbell waived his objection to giving the second degree

trafficking in    stolen    property instruction, ( 3) the trial court did not violate his right to control his


defense    by instructing        the   jury    on uncontrollable     circumstances, (    4) the trial court abused its


discretion in     instructing     the   jury   on   missing   witnesses,   but that   error was   harmless, ( 5) the trial




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court   did   not   improperly   comment   on   the   evidence,   and (   6) the trial court did not violate


Campbell' s right to counsel, 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 in accordance with RCW 2. 06.040,

it is so ordered.




 We concur:




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