   IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                  DIVISION ONE

STATE OF   WASHINGTON,                   )      No. 68725-5-1
                                                consolidated with
             Respondent,                 )      No. 68747-6-1


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             Respondent,                 )

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JAMES E. BALLOU,                         )      UNPUBLISHED OPINION


             Appellant.                  )      FILED: December 30, 2013


      Verellen, J. — Leonard Pegs, Jr. and James Ballou appeal their convictions

for second degree burglary. Pegs contends the State failed to preserve video

surveillance footage helpful to his case. He further contends that the best evidence

rule precludes the admission of secondary testimony related to the surveillance

footage, and that the court erred in allowing lay witnesses to give opinion testimony

identifying the defendants in the surveillance footage. Pegs and Ballou each contend

the court abused its discretion in allowing evidence of prior bad acts under
No. 68725-5-1/2



ER 404(b), and further argue the court erred in refusing to instruct the jury on the

definition of "property."

       There is no evidence the police acted in bad faith in failing to secure the

surveillance footage. The court did not abuse its discretion in admitting testimony

about the contents of the surveillance footage. Two witnesses who viewed the

surveillance footage had significant interaction with the defendants before viewing

the surveillance footage, rendering their testimony helpful to the jury. In any event,

any error in admitting such opinion testimony was harmless. The trial court did not

abuse its discretion under ER 404(b) in allowing the store manager to testify he had

met Ballou in the past. Finally, the instructions given allowed the defendants to

argue their theory, the court did not err in refusing to instruct the jury on the definition

of property, and any alleged error was harmless.

       Pegs also challenges his sentence, contending the court erred when it

recognized he was eligible for the parenting sentencing alternative1 but nevertheless
declined to give him an alternative sentence. The trial court noted Pegs' significant

criminal history, consistent with the legislature's directive that courts consider criminal

history in determining whether the parenting sentencing alternative is appropriate.

Pegs does not establish that the trial court abused or failed to exercise its discretion

in declining to give the alternative sentence.

       We affirm.




       1 RCW 9.94A.644.
No. 68725-5-1/3



                                        FACTS

      On November 1, 2009, Leonard Pegs, Jr. and James Ballou arrived at Toys 'R

Us in Lynnwood. The two men went to separate areas of the store. Department

supervisor Christopher Blaine observed Ballou in the "R Zone," a separate section of

the store containing electronics items. Ballou was pacing around near the R Zone on

his phone and asked an employee to show him some keyboards in another section of

the store. When Blaine offered Ballou assistance, Ballou told Blaine "never mind."2

Blaine then notified store manager Darin Jorgensen that they had a "Code Jeffrey,"

the store code for a suspicious situation.

       Blaine and Jorgensen then observed Ballou pushing a shopping cart with a

cardboard box in it toward the store exit without stopping at any cash register. The

box had red and white tape with a white label normally used for electronic

merchandise in the R Zone. Both Blaine and Jorgensen observed Pegs exit a few

steps behind Ballou. Jorgensen called after them to stop, but they sped up and

continued out the door into the parking lot, where a black Jaguar was parked.

Jorgensen followed them outside and called 911. When Jorgensen loudly provided
police with a description of the car and license number, Pegs and Ballou looked at

Jorgensen and then together, they lifted the box from the cart and dropped it into the

trunk. When the box landed in the trunk, Jorgensen heard a thud and saw the car

suspension shift. Pegs and Ballou drove away in the Jaguar. Jorgensen ran after

them while describing their route to the 911 dispatcher.




         Report of Proceedings (RP) (Mar. 28, 2012) at 295.
No. 68725-5-1/4



      Officer Justin Gann received the dispatch and stopped the Jaguar about seven

minutes later. Pegs and Ballou were detained for investigation. Jorgensen arrived

and identified Pegs and Ballou as the two men he had seen in the store.

      While Officer Gann was detaining Pegs and Ballou, Blaine watched the Toys

'R Us security video surveillance footage. At trial, Blaine testified about what he saw

on the video footage. He saw Pegs go to the back storage room door, near the R

Zone. The door is marked "for authorized personnel only." He saw Pegs open the

door after moving his hand around near the door. The door automatically locks and

normally can be opened only by employees with a key.

       Blaine then switched to the camera that showed the interior of the R Zone

storeroom. He testified the footage showed Pegs unload one of the boxes in the

storeroom and put several Nintendo DS game systems into the box. The box in the

video had the red and white tape with a white label normally used for electronic

merchandise in the R Zone. While filling up the box, Pegs periodically looked out the

small window in the storeroom door and put his phone to his ear. Pegs then put the

box on the floor just outside the storeroom door. Afew minutes later, Ballou came by
the storeroom door with a shopping cart. Ballou pushed the cart containing the

electronics box toward the exit. The surveillance video did not reveal and Blaine did

not see firsthand anyone else leaving the store with such a box in a cart.

       Jorgensen returned to the store after calling 911 and watched the surveillance

video several times. At trial, Jorgensen testified about what he had seen on the
No. 68725-5-1/5



surveillance footage, providing an almost3 identical account ofwhat Blaine had seen
on the footage. Jorgensen testified that the videotape included the faces of the

individuals. He recognized himself in portions of the tape near the front of the store

when Pegs and Ballou were leaving the store. Pegs and Ballou "were the only two

black customers in the store at that time."4 They were wearing the same clothes in

the tape as they were wearing in the store and at the show-up.

        Finally, Officer Gann also watched parts of the video. Gann testified that he

observed Pegs' face on the video footage to confirm Jorgensen's identification of

Pegs.

        Officer Gann asked Jorgensen for a copy of the video. Jorgensen tried to

make a copy, but the system malfunctioned. Officer Gann instructed Jorgensen that

the police needed the video as soon as possible. Officer Gann contacted Jorgensen
the next day to follow up, but Jorgensen replied that he was still having difficulty
making a copy. Officer Gann did not take the entire surveillance device because that
would have left Toys 'R Us without surveillance for the whole store, and Officer Gann

felt that "was not reasonable."5 Officer Gann never received a copy of the video.

Jorgensen testified that the drive on the video recorder would not open, so he could
not make a copy. Toys 'R Us then replaced the video surveillance equipment,

destroying the old footage.




        3Jorgensen testified that the surveillance showed Pegs loading the box on the
cart, a detail not included in Blaine's testimony.
        4RP(Mar. 27, 2012) at 115.
        5RP(Mar. 28, 2012) at 229.
No. 68725-5-1/6



       Police obtained a warrant to search the Jaguar the day after the incident.

They found a box in the trunk matching the description of the electronics box Pegs

and Ballou removed from the store in the shopping cart, but the box was empty.

Police did not endeavor to locate the purported contents. Jorgensen and Blaine

testified that several Nintendo DS game systems were missing from inventory, for a

total loss to the store of $5,779.62.

       The State charged Pegs and Ballou as codefendants with burglary in the

second degree and organized retail theft in the first degree. The defendants moved

to dismiss under CrR 8.3(b) for the State's failure to preserve the security video.

They also moved in limine to prevent testimony about the identity of the persons

depicted in the surveillance footage. Finally, they moved to exclude witness

testimony identifying the individuals in the footage based on the best evidence rule.

The court denied all the motions. The case proceeded to trial, but ended in mistrial

due to juror misconduct.

       The State then filed an amended information charging both defendants only

with burglary in the second degree. The State alleged the two entered into the Toys

'R Us with intent to commit theft therein. Before the second trial, Pegs and Ballou

renewed their pretrial motion to dismiss and motions in limine. The court denied the

motions, finding the State was not responsible for the failure to preserve the video,

and that its absence went to weight rather than admissibility of what the footage

showed.

       Pegs and Ballou also moved to exclude under ER 404(b) Jorgensen's

testimony that he knew Ballou from before. The court denied the motion because the
No. 68725-5-1/7



testimony related to Jorgensen's credibility when identifying Ballou. The court ruled

that Jorgensen could testify that he had met Ballou in the past and that he

recognized him.

      At the close of trial, the defendants proposed the standard pattern jury

instruction defining "property" as "anything of value."6 The court refused to give the
instruction, stating the term "property" is within the common understanding of the jury.

The jury found Ballou and Pegs guilty of burglary in the second degree, and the court

imposed a standard range sentence of 51 months for both defendants.

                                     DISCUSSION

        Due Process - Destruction of the Surveillance Footage by Toys 'R Us

       Pegs contends the State's failure to obtain the surveillance footage from Toys

'R Us deprived him of a meaningful opportunity to present a complete defense. To

comport with due process, the prosecution must disclose and preserve material

exculpatory evidence.7 The State's failure to preserve material exculpatory evidence
requires dismissal of criminal charges.8 Evidence is exculpatory if it possesses "an
exculpatory value that was apparent before it was destroyed" and if it is "ofsuch a

nature that the defendant would be unable to obtain comparable evidence by other

reasonably available means."9



       6 Clerk's Papers at 73.
       7 State v. Wittenbarqer, 124 Wn.2d 467, 474-75, 880 P.2d 517 (1994).
       8State v. Groth, 163 Wn. App. 548, 557, 261 P.3d 183(2011). review denied,
173 Wn.2d 1026, 272 P.3d 852 (2012).
       9 Wittenbarqer. 124 Wn.2d at 475.
No. 68725-5-1/8



       Ifthe evidence does not constitute material exculpatory evidence and is only

"potentially useful" to the defense, failure to preserve the evidence does not

constitute a due process violation unless the defendant demonstrates bad faith on

the part ofthe State.10 A showing of bad faith turns on whether the police knew of
the exculpatory value of the evidence when it was lost or destroyed.11 A defendant

must show the destruction was improperly motivated.12
       Here, there is no indication that the surveillance footage was exculpatory. The

trial court noted that every indication is that the tape was inculpatory. Officer Gann,

Blaine and Jorgensen watched the footage which revealed two men wearing identical

clothing to Pegs and Ballou leaving the store with a box filled with electronic game

components from Toys 'R Us without paying for them. The court did not err in

determining the video surveillance was not exculpatory.

       While the State concedes the footage might have been potentially useful

evidence, Pegs has not met his burden to show bad faith. As the State highlights,

Toys 'R Us did not notify the police the surveillance equipment was being replaced,

and therefore the police did not know the recording would be destroyed. Officer

Gann requested a copy of the footage on the day of the crime, followed up a day

later, and was ultimately frustrated by the unilateral Toys 'R Us decision to replace

the surveillance equipment. As the trial court recognized, the police could have

obtained the equipment via court order, but the failure to do so did not constitute bad

       10 Groth, 163 Wn. App. at 557; State v. Burden, 104 Wn. App. 507, 512, 17
P.3d 1211 (2001).
       11 Groth, 163 Wn. App. at 558.
       12 Id. at 559.



                                            8
No. 68725-5-1/9



faith. We conclude the trial court correctly determined there was no due process

violation.


             Admission of Testimony on Contents of Surveillance Footage

       We review challenges to a court's decisions on the admissibility of evidence

for abuse of discretion.13 A trial court abuses its discretion if its ruling is manifestly

unreasonable or exercised on untenable grounds or for untenable reasons.14
       a. Secondary Evidence and the Best Evidence Rule

        Pegs argues that the best evidence rule precludes the admission of any

secondary testimony describing the contents of the surveillance footage. Pegs

acknowledges that the best evidence rule provides that "[t]he original is not required,

and other evidence of the contents of a writing, recording, or photograph is

admissible if [a]ll originals are lost or have been destroyed, unless the proponent lost

or destroyed them in bad faith."15
        As described above, the State did not lose or destroy the footage in bad faith.

Pegs argues that the officer did not follow department guidelines, but Officer Gann

explained that taking the device would have left the store without any surveillance

system. Further, the State immediately requested a copy of the tape and promptly

followed up on that request. Toys 'R Us, not the State, took the actions that resulted

in destruction of the tape. Therefore, the trial court did not abuse its discretion in




        13 State v. Williams, 137 Wn. App. 736, 743, 154 P.3d 322 (2007).
        14 Id,
        15 ER 1004(a).


                                              9
No. 68725-5-1/10



determining the best evidence rule did not prevent the State from introducing

secondary testimony describing the content of the videotape.

       b. Opinion Testimony

       Pegs also argues the court erred by allowing Jorgensen, Blaine and Officer

Gann to give opinion testimony identifying Pegs and Ballou as the individuals in the

destroyed surveillance footage. A witness must testify based on personal

knowledge, and a lay witness may give opinion testimony if it is "rationally based on

the perception of the witness" and "helpful to a clear understanding of the witness'

testimony or the determination of a fact in issue."16
       The parties all focus on the standard used in State v. Hardy17 and State v.
George.18 In Hardv, the court noted that "[a] lay witness may give an opinion

concerning the identity of a person in a surveillance photograph if there is some basis
for concluding that the witness is more likely to correctly identify the defendant from
the photograph than is the jury."19 Stated slightly differently, opinion testimony on the
identity of a person in a photograph or videotape may be appropriate when the

witness has had sufficient contact with a defendant.20 In Hardv, we affirmed the trial

court's decision allowing officers to testify about the identities of two defendants




       16ER602; ER701.
       17 76 Wn. App. 188. 884 P.2d 8 (1994), aff'd by State v. Clark, 129 Wn.2d211,
916 P.2d 384 (1996).
       18 150 Wn. App. 110, 206 P.3d 697 (2009).
       19 Hardy, 76 Wn. App. at 190.
       20
            George, 150 Wn. App. at 118.



                                            10
No. 68725-5-1/11



appearing in surveillance footage of drug transactions because those officers had

known the defendants for several years before identifying them in the footage.21
       By contrast, in George, Division Two of this court held the trial court abused its

discretion in allowing a police officer's lay opinion testimony identifying two

defendants as robbers in a poor quality surveillance video.22 The officer had seen
the two defendants, along with seven other men, running from a van used to flee the

scene of a robbery.23 The officer also saw one ofthe defendants later that day at the
hospital.24 The appellate court noted, "These contacts fall far short of the extensive

contacts in Hardv and do not support a finding that the officer knew enough about

[the defendants] to express an opinion that they were the robbers shown on the very

poor quality video."25
       George and Hardv may be distinguishable on the basis that in both cases, the

jury viewed the videotape and was "free to reach its own conclusion about the identity

of [the defendants]."26 Here, the jury did not have access to the unavailable footage.
But even applying George and Hardv, it is arguable that Jorgensen and Blaine had

sufficient contacts with Pegs and Ballou such that their opinions identifying Pegs and

Ballou as the individuals they saw in the video as well as during the burglary and

after the burglary were helpful to the jury and were admissible under Hardy. Officer


       21 Hardv, 76 Wn. App. at 190-92.
       22 George, 150 Wn. App. at 115-19.
       23 id, at 113.
       24 Jd, at 115.
       25 id at 119.
       26 Hardv, 76 Wn. App. at 191; see also George, 150 Wn. App. at 115.


                                            11
No. 68725-5-1/12



Gann's testimony is much closer to the opinion testimony held inadmissible in

George. But even if all of the lay opinion testimony was improper, any such error is

harmless.


       Under the best evidence rule, Jorgensen and Blaine were still allowed to

testify to the facts depicted in the video, including key circumstantial evidence linking

Pegs to the person loading the box with the missing game consoles. Jorgensen and

Blaine both testified that in the video, they observed a man who was not an

employee enter the locked store room that is limited to authorized personnel. That

person selected a brown box with red tape and white label typically used for

electronic merchandise, emptied that box of less expensive electronic items, and

then filled that box with several expensive Nintendo DS game components. While

filling the box, he periodically peeked out the window in the door and put his phone to

his ear. Then he placed the filled box outside the storeroom door. The surveillance

video revealed another man in the same area with a cart. Then both men walked out


of the store with the electronics box in the cart without stopping at any register.

Those two men were the only African American customers in the store at that time

and were wearing the same clothes that Jorgensen saw Pegs and Ballou wearing

while they were in the store, when leaving the store, and at the show-up.

       Furthermore, Jorgensen testified about what he directly observed during the

burglary. When he yelled at Pegs and Ballou to stop as they were exiting the store,

they increased their speed. When he loudly told the 911 dispatch the license number

of their car, they looked at him, together lifted the box from the cart and dropped it




                                            12
No. 68725-5-1/13



into the trunk. Jorgensen heard a thud and saw the car suspension shift. Pegs and

Ballou then drove away with Jorgensen running after them.

      Taking the firsthand observations of Jorgensen at the store, together with

Jorgensen and Blaine's descriptions of the contents of the surveillance video, there is

overwhelming circumstantial evidence that Pegs was the individual in the storeroom

loading the box later recovered from the Jaguar, and that Ballou was his accomplice.

Whether viewed under the traditional harmless error rule that appears to apply to the

admission of lay opinion testimony,27 or under the more demanding constitutional
harmless error standard,28 we are convinced that the admission of the opinion

testimony of Jorgensen, Blaine and Officer Gann identifying Pegs and Ballou as the

individuals depicted on the videotape did not affect the verdict.

                                 Prior Bad Acts Testimony

       Pegs and Ballou both argue the trial court abused its discretion in allowing

Jorgensen to testify that he had met Ballou in the past because it created an

inference of prior bad acts, prohibited by ER 404(b). ER 404(b) prevents the

admission of evidence of other crimes, wrongs, or acts "to prove the character of a

person in order to show action in conformity therewith."29 Before admitting ER 404(b)
evidence, a trial court must "'(1) find by a preponderance of the evidence that the

       27 When evidence such as opinion testimony is improperly admitted, the trial
court's error is harmless if it is minor in reference to the overall evidence as a whole.
George. 150 Wn. App. at 119; State v Bourgeois, 133 Wn.2d 389, 403, 945 P.2d
1120(1997).
       28 Under the constitutional harmless error standard, we will not vacate the
jury's finding if it appears beyond a reasonable doubt that the alleged error did not
affect the verdict. State v. Monday. 171 Wn.2d 667, 680, 257 P.3d 551 (2011).
       29 State v. Foxhoven, 161 Wn.2d 168, 174-75, 163 P.3d 786 (2007).


                                            13
No. 68725-5-1/14



misconduct occurred, (2) identify the purpose for which the evidence is sought to be

introduced, (3) determine whether the evidence is relevant to prove an element of the

crime charged, and (4) weigh the probative value against the prejudicial effect.'"30
       The court ruled that although Jorgensen could testify he had met Ballou in the

past, Jorgensen was not permitted to testify about the circumstances under which the

two had met. The court also ruled that although identification of Ballou was not

necessarily at issue, the testimony was relevant to Jorgensen's credibility and not

overly prejudicial. At trial, Jorgensen testified as follows:

       Q.     Had you met James Ballou in the past?

       A.     Yes.[31]

       Pegs and Ballou argue the testimony was improperly admitted because

identity was not at issue, and even if it was, it allowed the jury to infer that Jorgensen

had met Ballou because Ballou was a "criminal type." Pegs further argues that such

an inference would prejudice him, i.e., because Ballou and Pegs were friends, Pegs

must be guilty by association. The State responds the testimony itself does not meet

the threshold of evidence of other crimes, wrongs or acts; rather, Jorgensen simply

testified he had met Ballou before.




       30 Id. at 175 (guoting State v. Thang, 145 Wn.2d 630, 642, 41 P.3d 1159
(2002)). Ifthe court decides to admit such evidence, a defendant is entitled to a
limiting instruction only if he requests one. State v. Gresham, 173 Wn.2d 405, 424,
269 P.3d 207 (2012). The defendants did not request such an instruction.
       31 RP(Mar. 27, 2012) at 86.


                                             14
No. 68725-5-1/15



       The testimony did not constitute propensity evidence. But even if it did, the

trial court's balancing analysis was appropriate. The State rightly points out that both

defendants pleaded not guilty, putting identity at issue.32 Because Jorgensen
identified Ballou at the show-up and at trial, the fact that Jorgensen met Ballou was a

"factor[ ] relating to that witness's credibility that the jury is charged to evaluate."33
The trial court's ruling was consistent with ER 404(b). The trial court did not abuse its

discretion.

                                 Jury Instruction on "Property"

       Pegs and Ballou also argue the trial court erred in refusing to give the jury a

proposed instruction defining "property" as meaning "anything of value."34 The
charge of burglary in the second degree required the State to prove Pegs and Ballou

"with intent to commit a crime against a person or property therein,. . . enter[ed] or

remained] unlawfully in a building other than vehicle or a dwelling."35 The
prosecution argued they entered the store with the intent to commit the crime of theft.
The court's instructions defined "theft" as "to take wrongfully the property of another

with intent to deprive the owner of such property."36




       32 See Foxhoven. 161 Wn.2d at 178
       33RP(Mar. 27, 2012) at 22.
       34 Clerk's Papers at 73.
       35 RCW 9A.52.030.
        36 Clerk's Papers at 44.


                                              15
No. 68725-5-1/16



       We review the adequacy of the jury instructions de novo "in the context of the

instructions as a whole."37 Jury instructions meet the requirements of a fair trial "if
they are supported by substantial evidence, allow the parties to argue their theories

of the case, and when read as a whole properly inform the jury of the applicable

law."38 Juries are presumed to follow the court's instructions.39
       The State argued in closing that whether Pegs took the Nintendo DS consoles

or just the box, either was sufficient to convict:

               So [the] State must prove beyond a reasonable doubt that Mr.
       Pegs entered that storage room with the intent to commit the crime of
       theft, to steal something. He did. DSs, he did. The box. It doesn't
       matter what it is. If he entered there to take one DS, that's the intent to
       commit the crime of theft. If he went in there to just take this box that
       he didn't have permission to take, and we know that, right, because
       nobody called the store to ask for permission to take a box, Mr.
       Jorgensen said he didn't give permission to either of these men to have
       this box, that's enough. They had the intent to go in that storage room
       and to commit theft.' ]

       Pegs and Ballou contend the definitional instruction was necessary to respond

to the prosecutor's argument that the intent to take an empty box was sufficient

evidence of intent to commit theft, which would in turn support the burglary charge.

They further contend they needed the instruction to argue the box had no value, and

therefore was not property.




       37 State v. DeRvke, 149 Wn.2d 906, 910, 73 P.3d 1000 (2003); State v. Pirtle,
127 Wn.2d 628, 656, 904 P.2d 245 (1995).
       38 State v. Clausing, 147 Wn.2d 620, 626, 56 P.3d 550 (2002).
       39 State v. Johnson, 124 Wn.2d 57, 77, 873 P.2d 514 (1994).
       40RP(Mar. 29, 2012) at 410-11.


                                             16
No. 68725-5-1/17



       Pegs' counsel's closing argument highlighted the testimony that the box had

no value to Toys 'R Us:

       Theft is defined for you. It requires an intent to steal property. That's
       defined for you. It's the intent to deprive someone of their property. If
       there's no intent to deprive the store of their property, whether it's right
       or wrong, there's no burglary. If someone goes into a room and takes
       an empty box because they believe they're not depriving anyone of
       property that has any meaning because they give away this property,
       they throw out this property, they take in the back room and compact it,
       there's no intent to steal.14 ]

       Ballou's counsel's closing argument highlighted that the State had not found

the DS game units Pegs had allegedly taken from the storeroom:

              The State's witnesses leave us with some questions. Like where
       did the DSs go?


               . . . The problem for the State is that their case conflicts with
       itself. Eyewitness testimony conflicts with the empty box found seven
       minutes after the 911 call. Nothing was stolen. There's no evidence a
       crime occurred. And really, floating the theory that if it was just a box
       it's a burglary? Really?'42'
       With respect to the defense theory that the empty box was not property

because it had no value, that theory is contrary to law. RCW 9A.04.110(22) provides

a general definition of property criminal statutes: "'Property' means anything of value,

whether tangible or intangible, real or personal."43 RCW 9A.56.010(21) provides a
definition of "value" that is specific to theft and robbery: "'Value' means the market

value of the property or services at the time and in the approximate area of the



       41 RP(Mar. 29, 2012) at 448.
       42 RP (Mar. 29, 2012) at 440, 442.
       43 The definition of property as having anything of value may be useful in
cases involving theft of intangible assets.



                                              17
No. 68725-5-1/18



criminal act." RCW 9A.56.010(21)(e) further provides that "[property or services

having value that cannot be ascertained pursuant to the standards set forth above

shall be deemed to be of a value not exceeding two hundred and fifty dollars."

       In State v. Tinker, our Supreme Court addressed these definitions in the

context of a challenge to an information alleging third degree theft that had not

specified the value ofthe property taken.44 The court concluded that the information
did not need to allege value to charge third degree theft, finding that "all items have

some value under the statutory definition of value, . . . there is no threshold

specification necessary to establish the very illegality of the behavior. The act of

taking any item constitutes at least third degree theft."45 Pegs and Ballou are entitled

to instructions that allow them to argue their theory of the case, but they are not

entitled to argue a theory of the case that is contrary to law.

       With respect to the defense theory that taking only a box was not sufficient to

show intent to commit theft, the instructions as given allowed Pegs and Ballou to

argue that taking a cardboard box did not demonstrate intent to commit theft. They

elicited testimony that Toys 'R Us would compact and discard its cardboard boxes,

including the boxes containing electrical items. Because the store had the policy of

discarding its boxes, Pegs and Ballou were free to argue, and in fact did argue, that

taking such a box did not deprive the store ofany of its property.46 This defense

       44 155 Wn.2d 219, 220-21,118 P.3d 885 (2005).
       45 id, at 222.
       46
          The underlying concept that merely taking an empty box destined for
disposal should not support an intent to steal the box is more likely grounded in
concepts of abandonment, presumed consent, claim of right, good faith, or mistake,
rather than the definition of "property." See generally 3 Charles E. Torcia,


                                            18
No. 68725-5-1/19



theory did not require the definitional instruction. We conclude the court did not err in

refusing to instruct the jury on the definition of "property" as "anything of value."

       Further, even if the court did err in failing to give the definitional instruction,

any error is harmless. Under the constitutional harmless error standard,47 we will not
vacate the jury's finding if it appears beyond a reasonable doubt that the alleged

error did not affect the verdict.48 The State presented evidence that Pegs entered a
restricted storeroom, put Nintendo DS game consoles in a cardboard box and placed

the box outside the storeroom for Ballou. Ballou and Pegs pushed the shopping cart

with the box out of the store, ignored the store manager's request that they stop,

placed the box in the trunk of their car, and drove away. Even though police did not

find the Nintendo DS game consoles during the search of the Jaguar, Jorgensen saw

Pegs and Ballou lifting the box out of the cart together, heard a thud and saw the car


Wharton's Criminal Law 15th Ed. §§ 372 , 377 (1995) ("If an owner casts away
property, intending no longer to have any interest therein, he is said to have
'abandoned' it. Abandoned property belongs to no one . . . [and] cannot be the
subject of larceny."); see also 1 Paul H. Robinson, Criminal Law Defenses §§ 66(b),
66(h), 109(c) (1984).
       47 To the extent Pegs and Ballou argue the court's refusal to instruct the jury
on an element of the offense charged was error, the constitutional harmless error
standard would apply. However, failure to further define a "commonly understood"
element is not an error of constitutional magnitude. State v. Bledsoe, 33 Wn. App.
720, 727, 658 P.2d 674 (1983) (quoting State v. Pawling, 23 Wn. App. 226, 232-33,
597 P.2d 1367 (1979)). Under the nonconstitutional harmless error standard,
reversal is required only if there is a reasonable probability that error materially
affected the trial's outcome. State v. Ray. 116 Wn.2d 531, 546, 806 P.2d 1220
(1991) (quoting State v. Smith, 106 Wn.2d 772, 780, 725 P.2d 951 (1986)). As the
note on use to Washington pattern jury instruction 2.21 provides, the definition of
property should only be used when the term "may not be understood as applied to
the facts of a particular case." 11 Washington Practice: Washington Pattern Jury
Instructions Criminal 2.21, at 68 (3d ed. 2008).
       48 Monday, 171 Wn.2d at 680.



                                              19
No. 68725-5-1/20



suspension shift when they dropped the box into the car trunk. And several game

units were missing from the inventory taken immediately after the incident. In light of

the strong evidence of a burglary, any error in refusing the instruction was harmless.

                           Parenting Sentencing Alternative

       Pegs requested a sentence under the parenting sentencing alternative statute

(PSA), RCW 9.94A.655. A community corrections officer evaluated Pegs and

reported to the court that he was eligible for the alternative sentence. The court first

noted that Pegs and Ballou "each have substantial criminal history."49 The court
recognized Pegs was eligible,50 but declined to authorize the alternative sentence:
       Mr. Pegs, while you meet the statutory criteria for a parenting
       sentencing alternative, I will note that it is a new statute in the sense
       that it was passed into law in 2010, but I believe there were only 17
       people in the entire state of Washington that have received a parenting
       sentencing alternative. It is an extraordinarily rare sentence to receive.
       The fact is I think reflective of some of the policy ... to balance ... the
       needs of accountability under the Sentencing Reform Act to the needs
       of an offender who has a young family and may in fact be the only
       parent available to parent.... Here I'm not finding a—well, I simply will
       not authorize a parent sentencing alternative sentence for you, Mr.
       Pegs.'511
Pegs' sentence is stayed pending this appeal.

       Pegs contends the court created additional criteria not present in the statute,

and that the refusal to properly consider the PSA alternative was a failure to exercise



       49 RP (May 3, 2012) at 32.
       50 "An offender is eligible for the parenting sentencing alternative if: (a) The
high end of the standard sentence range for the current offense is greater than one
year [and] [t]he offender has physical custody of his or her minor child or is a legal
guardian or custodian with physical custody of a child under the age of eighteen at
the time of the current offense." RCW 9.94A.655(1)(a), (e).
       51 RP (May 3, 2012) at 33-34.


                                           20
No. 68725-5-1/21



discretion. He notes that the statute does not say the sentence should only be given

in extraordinary cases, nor does it say the offender must be the only parent or

guardian of the child or children. Pegs relies upon State v. Grayson, where the

Supreme Court held the trial court abused its discretion by refusing to give a drug

offender sentencing alternative (DOSA) sentence where the principal reason was the

judge's belief that there was inadequate funding to support the program, and where

the court did not state on the record any other reason for its denial.52 Pegs argues
Grayson is analogous because here, the trial court found he was eligible but refused

to give him the sentence based on the sole ground that the PSA was "extraordinarily

rare," similar to the Grayson court's refusal to give the alternative because DOSA

was underfunded.

       Unlike Grayson, the court's rationale here was grounded in statutory

considerations. In addition to the eligibility requirements set forth in

RCW 9.94A.655(1)(a), subsection (4) expressly requires that the court "shall consider

the offender's criminal history when determining if the alternative is appropriate."

While the court acknowledged Pegs was eligible, the court also noted his substantial

criminal history and then immediately referred to the need to balance accountability

with the responsibilities of offenders with children. While the court did not explicitly

state that its refusal to sentence Pegs under the PSA was due to his criminal history,

the overall rationale expressed in the ruling does not constitute a categorical refusal to

consider Pegs' request. We conclude the trial court did not refuse to exercise its



       52
            154 Wn.2d 333, 342, 111 P.3d 1183 (2005).



                                            21
No. 68725-5-1/22



discretion and did not abuse its discretion in declining to sentence Pegs under the

PSA.

                             Statement of Additional Grounds

       Ballou raises numerous additional grounds for review, but many overlap with

the unsuccessful arguments made by his counsel. The issues surrounding the

surveillance footage have been addressed above.53
       Ballou also argues his trial should have been severed. A trial court's denial of

a motion to sever is reviewed for manifest abuse of discretion.54 To show that the

trial court abused its discretion in denying severance, "the defendant must be able to

point to specific prejudice."55 A defendant seeking severance has "the burden of
demonstrating that a trial involving all counts would be so manifestly prejudicial as to

outweigh the concern for judicial economy."56 Because the State charged Ballou
based on accomplice liability, Ballou argues it was improper for him to be tried with

Pegs. No abuse of discretion occurred because Ballou does not point to any specific

prejudice. Nor could he likely point to any prejudice because Pegs' defenses—that

Pegs took nothing of value from the storeroom and that the identification testimony

based on the surveillance footage was inadmissible—were Ballou's defenses as well.




       53 Ballou suggests that the State's failure to secure the video violated a broad
range of his rights, but all of his arguments fail because there is no showing the
police acted in bad faith.
       54 State v. Medina, 112 Wn. App. 40, 52, 48 P.3d 1005 (2002).
       55 State v. Bvthrow, 114 Wn.2d 713, 720, 790 P.2d 154 (1990).
       56 Id. at 718.



                                           22
No. 68725-5-1/23



       Ballou also challenges the sufficiency of the evidence. Viewing the evidence

in a light most favorable to the State, as we must,57 there is sufficient evidence of
intent to commit theft and burglary.

       Finally, Ballou advances arguments related to Officer Gann's stop of the

Jaguar, including that the officer was outside his jurisdiction and lacked probable

cause to stop him and Pegs. The record does not support either of these arguments.

      Affirmed.




WE CONCUR:




                                                %^'VHI.^,




       57
            State v. Hosier, 157 Wn.2d 1, 8, 133 P.3d 936 (2006).



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