                                                                                              FILED
                                                                                       COURT OF APPEAL S
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                                                                                      2OI11 SEP 30        NI 9: 07

                                                                                      STATE OF WASHINGTON




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                    DIVISION II

 STATE OF WASHINGTON,                                                                 No. 44513 -1 - II


                                           Respondent,


              v.



 DAVID ROBERT TIMMINS,                                                          UNPUBLISHED OPINION


                                           Appellant.


          WORSWICK, P. J. —            A jury returned verdicts finding David Robert Timmins guilty of first

degree robbery, first degree burglary, second degree theft, and first degree identity theft.

Timmins appeals his convictions and sentence, asserting that ( 1) the trial court improperly

instructed the jury on uncharged alternative means of committing first degree robbery, first

degree burglary, and second degree theft, (2) the prosecutor committed misconduct that violated

his   right   to a fair trial, ( 3)   the trial court violated his right to present a defense by prohibiting

counsel from arguing an inference that missing evidence in the State' s control would have been

unfavorable to the State' s case, and ( 4) the trial court erred at sentencing by failing to treat some

of his crimes as the same criminal conduct when determining his offender score. The State

concedes that the trial court erred by instructing the jury on uncharged alternative means. We

accept the State' s concession and reverse Timmins' s first degree robbery, first degree burglary,

and second         degree theft   convictions.    We    affirm   Timmins'   s   first degree   identity theft   conviction.
No. 44513 -1 - II



                                                                FACTS


          On September 4, 2012, Timmins, who was an acquaintance of Karen Kimberling, went to

Kimberling' s home in Vancouver, Washington. Kimberling invited Timmins into her home and

the two sat down and talked.


          According to Kimberling, Timmins asked her where she kept her credit cards and then

looked through her home for her                purse.      Kimberling stated that after Timmins found her debit

card,   he demanded that         she   tell   him her     personal   identification   number ( PIN).     Kimberling said

that after she asked Timmins to leave, he punched her left eye and demanded that she tell him

her PIN. Kimberling also said that Timmins kicked her hip after she fell to the floor. After

Kimberling told Timmins her PIN, he left her home and began making several purchases and

cash withdrawals from her account totaling approximately $ 1, 900.

          According to Timmins, he and Kimberling drank alcohol and used methamphetamines

while at Kimberling' s home. Timmins stated that after they ran out of alcohol and

                                                         him her debit               PIN, asking him to    withdraw $ 120
methamphetamines,       Kimberling             gave                      card and




to purchase cigarettes, alcohol, and methamphetamines. Timmins admitted that he had planned

to take out additional money for himself. He further admitted that he kept using Kimberling' s

debit   card   beyond the   scope of          her   permission,    stating, " I   knew I had spent more money than I

could replace and     I —I   wasn'       t planning       on   going back,   so   I —I just   ended up deciding to use the

card as   many times   as    I   could while         I   could."   Report of Proceedings ( RP) at 308. Timmins


denied that he had hit      Kimberling.
No: 44513 -1 - II



             Vancouver Police Detective Spencer Harris interviewed Kimberling at the hospital.

Kimberling repeatedly told Harris that she received her injuries from a fall, but Kimberling later

went to the police station and reported that Timmins had assaulted her.


             On January 17, 2013, the State charged Timmins by amended information with first

degree robbery, first degree burglary, second degree theft, and first degree identity theft. The

State'   s   charging document           alleged     that Timmins: ( 1)        committed first degree robbery " in the

commission of [a           theft]   or   in immediate flight therefrom ...                  inflict[ing] bodily injury upon .. .

Kimberling;" ( 2) committed first degree burglary " in entering or while in the building or in

immediate flight therefrom ...                  intentionally       assault[   ing]   any   person    therein;" and ( 3) committed



second degree theft by " wrongfully obtain[ ing] or exert[ ing] unauthorized control over an access

device ...      with    intent to deprive ...             Kimberling    of such access         device." Clerk' s Papers ( CP) at


1 - 2.


             Before trial, the State moved in limine to admit evidence that Timmins had been released

from jail on the morning of the incident, which motion the trial court declined to rule on at that

time. During the trial, the State renewed its motion to admit evidence of Timmins' s release from

jail, asserting that the evidence showed that Timmins was near Kimberling' s home on the date of
the incident. The trial court ruled that the State could not present evidence that Timmins had

been released from jail, but it allowed the State to present sanitized evidence that Timmins was

in the area on that date. The following exchange took place during the State' s examination of

Harris:


              Harris]: [    Timmins        said]     he   went   to the house       after   leaving   a —a   location in Clark

             County, where he had a few shots of vodka with her and ate some food. And then
             when   I   asked   him      what   he   did   after   that he   said   he   went— he     went to go visit some
             friends.



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No. 44513 -1 - II



         State] :   Okay. So, I just — I direct your attention to the top [ of the police report]
                                       if
        did he initially say he just went out of jail and went to visit friends?

RP at 325. Timmins objected and moved for a mistrial. The trial court denied Timmins' s


mistrial motion but instructed the jury that the State had meant to say that Timmins had been at

court on the morning of the incident. Kimberling and Timmins each testified to their version of

the facts as stated above.


        The State questioned one of the nurses who treated Kimberling about Kimberling' s blood

test results, but when Timmins objected on the basis of hearsay, the State withdrew its question.

After Timmins testified on direct examination that he and Kimberling had used

methamphetamines in her home, the State asked Timmins the following during cross-

examination:



         State]:               Do you know that they took lab tests?
         Timmins] : I did not.
         State]:               Has that been discussed previously in your presence?
         Timmins] : I' ve heard it talked about.
         State]:               Okay.     So you know that she ' took lab tests while she was at the
        hospital, correct?
         Timmins]:             Sure, yes.
         State]:               Okay.     How do   you explain    that them [ sic]   — there      was no

        methamphetamine in her system?


RP at 313.


        Defense counsel objected; the trial court sustained the objection and struck the State' s

question as well as Timmins' s response.


        The State argued the following during closing:

        He drained her account as quickly and as fast as possible until there was nothing in
         it   and   he   was able   to   get no more   money from it. This         was   the   person who —whose


         credibility is at issue. He hadn' t intended to take her money. He just happened to
         clean out       her   entire   bank   account.   You   saw what she — who —you            saw this woman.
         This is the      account—       he— this— you think that      she   has   means       for this? The kind of




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No. 44513 -1 - II



           person who is going to go drain the account of a woman who' s obviously very
           limited in her income, he took every single thing she had.

RP   at   439. Defense         counsel objected,          arguing that the State      was    appealing to "     sympathy not to

logic     of   facts."    RP   at   439. The trial       court   did   not rule on   the   objection,   but   stated   only, " Let' s


move. on,"        and the State continued:


           He took everything. But his —he'            s saying to you today that that' s not the kind of
           person        that he is.   That' s really what happened when he testified in front of you
           today. I' m not that type of person, I am a good person, I only just took her money.
           I wouldn' t have done this, I' m not the kind of person who would punch an old lady
           in the eye and stay at her house and take her debit card. That' s exactly what every
           one of his actions has shown you. He didn' t just go take something, he didn' t just
           go buy a dirt bike that he doesn' t even need from Wal - art, he took everything she
                                                                  M
           had. That' s the kind of person he is.

RP at 439 -40.


           During its closing, defense counsel argued that the State' s failure to produce

Kimberling' s blood test results suggested that the blood results were unfavorable to the State' s

case. The State objected, but the trial court did not rule on the objection, and instead instructed

defense        counsel    to " move    on   to   a   different topic." RP at 429.


           The trial court' s to- convict jury instruction for first degree robbery included means of

committing first degree robbery not mentioned in the information. The instruction listed as an

essential element each of the following alternative means of committing the offense:

                a) That in the commission of these acts or in immediate flight therefrom the
               defendant was armed with a deadly weapon or
                       b) That in the commission of these acts or in the immediate flight therefrom
               the defendant displayed what appeared to be afirearm or other deadly weapon; or
                          c) That in the commission of these acts or in the immediate flight therefrom
               the defendant inflicted bodily injury.

 CP at 38 ( emphasis added).




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No. 44513 -1 - II



        The trial court' s to- convict jury instruction for first degree burglary also included means

of committing first degree burglary not mentioned in the information. The instruction listed as

an essential element each of the following alternative means of committing the offense:

        That in so entering or while in the building or in immediate flight from the building
        the defendant or an accomplice in the crime charged [( 1)] was armed with a deadly
        weapon or [(   2)]   assaulted a person.




CP at 44 ( emphasis added).


        The trial court' s to- convict jury instruction for second degree theft also included means

of committing second degree theft not mentioned in the information. The instruction listed as an

essential element each of the following alternative means of committing the offense:

         T] he defendant
         a) wrongfully obtained or exerted unauthorized control over property of another;
         b) by color or aid ofdeception, obtained control over property of another; or
         c)   appropriated lost or misdelivered property of another.

CP at 47 ( emphasis added).


        The jury returned verdicts finding Timmins guilty of first degree robbery, first degree

burglary, second degree theft, and first degree identity theft. Timmins timely appeals his

convictions and resulting sentence.


                                                   ANALYSIS


                                           I. JURY INSTRUCTIONS


        Timmins first contends that the trial court erred by instructing the jury on uncharged

alternative means of committing first degree robbery, first degree burglary, and second degree

theft. The State concedes reversible error. We accept the State' s concession and reverse

Timmins' s convictions of first degree robbery, first degree burglary, and second degree theft.




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No. 44513 -1 - II



        It is fundamental that the State inform an accused of the criminal charges to be met at


trial, and the State cannot try an accused for an uncharged crime. State v. Irizarry, 111 Wn.2d

591, 592, 763 P. 2d 432 ( 1988). Alternative means statutes provide multiple ways in which a


person may commit a single crime. State v. Arndt, 87 Wn.2d 374, 376 -77, 553 P. 2d 1328

 1976). When the State charges an accused of committing one of several alternative means to a


single crime, a trial court errs by instructing the jury that it may consider the uncharged means by

which the accused could have committed the crime. State v. Bray, 52 Wn. App. 30, 34, 756 P. 2d

1332 ( 1988).   Instructing a jury on an uncharged alternative means violates the defendant' s right

to be informed of the charges against him or her. State v. Laramie, 141 Wn. App. 332, 343, 169

P. 3d 859 ( 2007) ( citing U. S. CONST.   amend.   VI; WASH, CONST.,    art.   1, §   22).


         An erroneous instruction given on behalf of the party in whose favor the verdict was

returned is presumed prejudicial unless it affirmatively appears that the error was harmless."

Bray, 52 Wn. App. at 34 -35. Because a jury instruction that contains uncharged alternative

means is   presumed prejudicial, "[   o] n direct appeal, it is the State' s burden to prove that the error


was   harmless."    In re Pers. Restraint ofBrockie, 178 Wn.2d 532, 536, 309 P. 3d 498 ( 2013)

 citing Bray, 52 Wn. App. at 34 -35).

         Here, the trial court' s first degree robbery, first degree burglary, and second degree theft

jury instructions each contained alternative means of committing those offenses that the State did

not allege in its charges against Timmins. Accordingly, those jury instructions were erroneous,

and we presume that the error prejudiced Timmins. Because the State concedes reversible error,


it does not meet its burden to show that the instructional errors were harmless. Accordingly, we




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No. 44513 -1 - II



reverse Timmins' s convictions of first degree robbery, first degree burglary, and second degree

theft.


                                        II. PROSECUTORIAL MISCONDUCT


         Next, Timmins contends that the prosecutor committed misconduct depriving him of his

right to a fair trial. Specifically, Timmins asserts that the prosecutor committed misconduct by

 1) mentioning his   release       from jail in   violation of   the trial court' s ruling in limine, (2)



attempting to impeach him with evidence of lab tests that were not presented as evidence at trial,

and ( 3) arguing at closing that the jury should convict based on sympathy to the victim. Because

we reverse Timmins' s first degree robbery, first degree burglary, and second degree theft

convictions based on the trial court' s instructional errors, we address his prosecutorial


misconduct claim only in relation to his remaining first degree identity theft conviction.

         To prevail on his prosecutorial misconduct claim, Timmins must establish " that the


prosecutor' s conduct was both improper and prejudicial in the context of the entire record and

the   circumstances at   trial."    State v. Thorgerson, 172 Wn.2d 438, 442, 258 P.3d 43 ( 2011)

 internal   quotation marks omitted).        To show prejudice, Timmins must prove that there is a


substantial likelihood that prosecutorial misconduct affected the jury verdict. Thorgerson, 172

Wn.2d at 442 -43.


         Assuming without deciding that Timmins has shown that the prosecutor' s conduct was

improper, he cannot demonstrate any resulting prejudice with regard to his first degree identity




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No. 44513 -1 - II



theft conviction.1 Timmins admitted in his trial testimony that he had used Kimberling' s debit

card   beyond the       scope of   her   permission   to   obtain   money   and goods, which exceeded $   1, 500 in


total value. See RCW 9.35. 020. And defense counsel similarly conceded during closing

argument    that Timmins         committed    first degree    identity theft,   stating, " Mr. Timmins admitted he


took the   card, admitted       he developed the intent       outside   the   house to —to use it when he was at


the Arco and saw how much money was there, and so he says that he used the card, that' s not in

dispute." RP       at   411.   In light of Timmins' s admissions at trial, he cannot demonstrate that any

improper conduct on the part of the prosecutor affected the jury' s verdict finding him guilty of

first degree identity theft.

                                          III. RIGHT TO PRESENT A DEFENSE


         Next, Timmins contends that the trial court violated his right to present a defense when it

limited defense counsel' s argument at closing that the State' s failure to produce Kimberling' s lab

results allowed the jury to infer that the lab results were unfavorable to the State.2 We disagree.
         A criminal defendant has a constitutional right to present a defense. State v. Rehak, 67

Wn.    App.   157, 162, 834 P. 2d 651 ( 1992). " The right of an accused in a criminal trial to due


process is, in essence, the right to a fair opportunity to defend against the State' s accusations."

Chambers      v.   Mississippi, 410 U. S. 284, 294, 93 S. Ct. 1038, 35 L. Ed. 2d 297 ( 1973).             A trial


court has broad discretion to limit the scope of closing argument. State v. Frost, 160 Wn.2d 765,




1 In holding that the prosecutor' s conduct did not prejudice Timmins with regard to his first
degree identity theft conviction, we do not mean to imply that the prosecutor' s conduct would
not have been prejudicial with regard to Timmins' s other counts.


2 Again, we address this claim only in relation to Timmins' s remaining first degree identity theft
conviction.




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No. 44513 -1 - II



771 -72, 161 P. 3d 361 ( 2007): However,           a   trial   court' s "[   i]mproper limitation of closing

argument       may ...    infringe upon a defendant' s" constitutional rights. Frost, 160 Wn.2d at 773.


         A trial court' s error in limiting the scope of defense counsel' s closing argument is subject

to harmless error analysis. Frost, 160 Wn.2d at 779 -82. A constitutional error is harmless


beyond a reasonable doubt if "any reasonable jury would have reached the same result in the

absence of      the   error."   State v. Guloy, 104 Wn.2d 412, 425, 705 P. 2d 1182 ( 1985).

         Here, even assuming without deciding that the trial court erred by limiting defense

counsel' s closing argument, such error was harmless beyond a reasonable doubt as to Timmins' s

first degree identity theft conviction.3 As discussed above, Timmins admitted at trial to the

elements forming the basis of his first degree identity theft conviction. Thus, any reasonable jury

would have found Timmins guilty of that offense even if the trial court had allowed counsel to

argue that the jury could infer an unfavorable lab result due to the State' s failure to produce the

lab results at trial. Accordingly, we affirm Timmins' s first degree identity theft conviction.

                                                  IV. SENTENCING


             Finally, Timmins contends that the trial court erred at sentencing by failing to treat some

of his convictions as the same criminal conduct when computing his offender score. Because we

reverse three of Timmins' s four convictions, this claim is moot and we do not address it further.

State   v.   Harris, 148 Wn.      App.   22, 26, 197 P. 3d 1206 ( 2008).          We reverse Timmins' s first degree




3 Because we address Timmins' s right - present -a- defense claim only in relation to his first
                                      to-
degree identity theft conviction, our analysis should not be read to suggest that any error in the
trial court' s limitation of defense counsel' s argument would have been harmless beyond a
reasonable doubt with regard to Timmins' s remaining counts.


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No. 44513 -1 - II



robbery, first degree burglary, and second degree theft convictions based on the State' s

concession and affirm Timmins' s first degree identity theft conviction.

        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.




                                                                      Worswick, P. J.
 We concur:




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