State of Washington v. Kimberly Lynn Grijalva ( 2014 )

FILED
SEPT 9,2014
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
)
Respondent, ) No. 30032-3-III
)
v. )
)
KIMBERLY LYNN GRIJALVA, ) UNPUBLISHED OPINION
)
Appellant. )
KORSMO,J. Kimberly Grijalva challenges her convictions for second degree
theft and third degree introduction of contraband, arguing that the charging document
was defective and the evidence insufficient to support the charges. We disagree and
affirm.
FACTS
Ms. Grijalva worked as an attorney in Yakima. Part of her practice was criminal
defense; she maintained an office out of her home. She set up her home telephone as an
attorney line that could accept free and unrecorded telephone calls from the Yakima
County Jail (YCJ). Also living in her house for a time was a woman named Autumn
Scribner. 1 While living in Ms. Grijalva's house, Ms. Scribner dated two men who were
inmates in the county jail.
Ms. Scribner is also referred to in the record as Autumn Hubbard. We will use
1
the surname Scribner for purposes of this opinion as that is the name used in the bench
findings.
No. 30032-3-III
State v. Grijalva
Inmates at the YCJ had to use a calling service to place phone calls. A call made
to an attorney was free; other calls cost $2.50 per 15 minutes. The calling service was
provided by Inmate Calling Solutions (ICS), which split the telephone call revenue
equally with the YCl
In a 40-day period between April and June of2010, the two inmates whom Ms.
Scribner was seeing completed 916 telephone calls to Ms. Grijalva's house on her free
attorney line. She did not represent either man. Many of the phone calls were forwarded
to Ms. Scribner's cell phone. Ms. Grijalva was aware of the calls on her office line. A
federal investigation of one of the men led to the discovery of the phone calls. The YCJ
arranged to have the calls recorded. Review of the calls revealed Ms. Grijalva
participating in some of them and otherwise present for many of the calls.
In a separate incident that October, Ms. Grijalva visited inmate Calvin George at
the YCJ to discuss undertaking his representation. The visit occurred in a professional
visiting room at the jail. Ms. Grijalva slid her telephone to Mr. George through a pass­
through window so that he could place a phone call to his mother about paying Ms.
Grijalva to represent him. The action was noted by corrections staff.
The Yakima County Prosecutor's Office filed charges against Ms. Grijalva of
second degree theft, based on the free telephone calls made by the two inmates, and third
degree introduction of contraband for passing her cell phone to Mr. George. The theft
count listed the Yakima County Department of Corrections as the victim of a theft of
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No. 30032-3-III
State v. Grijalva
telephone services. The theft count later was amended to add a theory of accomplice
liability.
Ms. Grijalva waived her right to a jury trial and the matter proceeded to trial
before a visiting judge, the Honorable Brian Altman. Ms. Scribner testified with
immunity and stated that Ms. Grijalva encouraged use of the phone line for the personal
calls and set up the forwarding of the calls to Ms. Scribner's cell phone.
At the conclusion of the State's case, the defense moved to dismiss the theft
charge, alleging that the charging document failed to state a crime. The trial court denied
the motion. The defense argued the theft charge to the bench on theories that there was
no crime stated in the charging document and that Ms. Scribner was the person
responsible for the telephone calls. After hearing argument, the court found Ms. Grijalva
guilty as charged. The court expressly found that she had aided Ms. Scribner and her
boyfriends in circumventing the YCl telephone policy, resulting in a loss to the jail of
over $750. Written findings in support of the judgment were entered.
The court imposed a total sentence of 60 days on the two counts and converted
that time to 480 hours of community service. Standard financial obligations were
imposed, and the court also ordered restitution of$2,290, with $1,145 to ICS and $1,145
to YCl. Ms. Grijalva then timely appealed to this court.
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No. 30032-3-111
State v. Grijalva
ANALYSIS
On appeal, Ms. Grijalva renews her challenge to the charging document and also
challenges the sufficiency of the evidence to support both convictions as well as the
evidentiary basis for the finding that she could afford to pay her legal financial
obligations (LFOs). We address the issues in the order stated.
Charging Document
Ms. Grijalva argues that the charging document failed to state a theft charge
because "telephone services" are not "property." We disagree.
The standards governing review of this challenge are long settled. A charging
document must state the elements of the alleged crime in order to give the accused an
understanding ofthe crime charged. "All essential elements of a crime, statutory or
otherwise, must be included in a charging document in order to afford notice to an
accused of the nature and cause of the accusation against him." State v. Kjorsvik,
117 Wn.2d 93, 97,812 P.2d 86 (1991). When challenged for the first time after a verdict
has been returned, courts will liberally construe the document to see if the necessary facts
can be found. If not, the charge will be dismissed without prejudice. Even if the charge
is stated, a defendant who shows prejudice from "inartful" pleading also receives a
dismissal of charges without prejudice. [d. at 105-06. The liberal construction standard
for documents that are not timely challenged in the trial court is designed to discourage
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No. 30032-3-111
State v. Grijalva
"sandbagging" by which the defense withholds a challenge that could otherwise be timely
remedied. Id. at 103.
Second degree theft requires proof that the defendant committed theft of "property
or services" other than a firearm valued at more than $750. RCW 9A.56.040(1)(a).
'" Services' includes, but is not limited to, labor, professional services, transportation
services, electronic computer services ... and the supplying of commodities of a public
utility nature such as gas, electricity, steam, and water." RCW 9A.56.010(15).
The amended information here alleged that Ms. Grijalva:
acting as a principal or an accomplice, you or an accomplice wrongfully
obtained and/or exerted unauthorized control over property, telephone
services, of a value exceeding $750.00 but not more than $5,000.00, which
was not a firearm or motor vehicle, belonging to Yakima County
Department of Corrections, with intent to deprive Yakima County
Department of Corrections of that property.
Clerk's Papers (CP) at 10.
Ms. Grijalva argues that telephone services are not "property" under the noted
definition of "services" listed in the preceding paragraph and that her view is further
supported by the existence of the crime of theft of telecommunication services,
RCW 9A.56.262, that makes it a crime to use a telecommunication device to obtain
telecommunication services without paying for them. We do not believe the existence of
the telecommunications theft statute furthers Ms. Grijalva's argument here. That statute
only addresses thefts committed by use of a telecommunication device, an object that is
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No. 30032-3-111
State v. Grijalva
capable of "transmitting or receiving telephonic or electronic communications."
RCW 9A.S6.01O(l9)(a). It involves only a particular method of theft that is not
applicable to the facts of this case.
The telecommunications theft statute is instructive, however, on the meaning of
"services." The previously quoted definition of "services" is, by the express language
of the statute, non-exclusive. RCW 9A.S6.010(lS). The definition of
"telecommunication service" clearly places telephone calls in the category of "services."
RCW 9A.S6.010(20). The legislature, having defined telephone calls as a service,
recognized them as something that can be stolen. We thus have no difficulty concluding
that telephone calls are a "service" under the general theft statutes. As telephone calls are
an item that can be stolen, the charging document did state a crime when it alleged that
Ms. Grijalva had stolen telephone services.
The remaining question under Kjorsvik is whether, despite charging an offense,
the use of "inartful" language prejudices the defendant. Here, the charging document
expressly stated that the crime involved the taking of "property, telephone services." Ms.·
Grijalva contends that the telephone calls were not "property," but does not persuasively
argue that she was prejudiced by the use of the word in the charging document. She
clearly was prepared to address the issue, having brought a motion to dismiss at the end
of the State's case, and then renewing the contention during closing argument. Far from
being confused or prejudiced by the charging language, Ms. Grijalva made it a central
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No. 30032-3-111
State v. Grijalva
part of her defense of the case. Both parties knew the basis for the theft charge and
disputed whether those facts constituted a crime. There was no prejudice from describing
the telephone calls as "property."
The amended information stated the crime of second degree theft. There was no
prejudice from stating that ''telephone services" constituted "property." Thus, the
charging document was sufficient.
Sufficiency ofthe Evidence
Ms. Grijalva next argues that the evidence was insufficient to support the bench
verdicts on both counts. Properly viewed, the evidence supported the verdicts. 2
Well settled standards again apply to this challenge. The question presented is
whether there was evidence from which the trier of fact could find each element of the
offense was proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319,
99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); State v. Green, 94 Wn.2d 216,221-22,
616 P.2d 628 (1980). The reviewing court will consider the evidence in a light most
favorable to the prosecution. ld.
2 Appellant assigns error to findings of fact nos. 12, 13, and 43 involving the
evidence supporting the two convictions, as well as several conclusions of law regarding
the sufficiency of the evidence. As she does not argue that the evidence does not support
the challenged findings (an argument that we would reject as each of them was supported
by the testimony), we presume the challenges are the legal efficacy of the facts and treat
these assignments of error as subsumed in her legal argument. The dissent confuses the
policy mentioned in finding 43. The finding addresses the written YCJ policy concerning
inmate telephone calls applicable to those people mentioned in the finding rather than an
unwritten attorney phone policy.
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No. 30032-3-III
State v. Grijalva
Theft Charge. Ms. Grijalva argues 3 that the evidence does not support this count
because (a) she did not exercise "wrongful" or "unauthorized" control over the telephone
calls and (b) the service did not belong to the Yakima County Department of Corrections,
the named victim. We address each argument in turn.
A person commits theft when she does "wrongfully obtain or exert unauthorized
control over the property or services of another." RCW 9A.56.020(l)(a) (partial). Ms.
Grijalva contends there was nothing improper about her use of the telephone services
because, as an attorney, she was authorized to set up the free telephone line. This argument
proves too much. The purpose ofthe free attorney telephone service is to facilitate the
attorney-client relationship and the ability to present a defense by allowing an inmate
unfettered access to his attorney. Instead, Ms. Grijalva used the service to provide her
friend, Ms. Scribner, with free telephone calls with her boyfriend(s), circumventing the pay
per use service for personal telephone calls applicable to the other YCl inmates. This
abuse of the free attorney line certainly was both unauthorized and wrongful.
Her other argument fares no better. The theft statute does not require that there
be a named victim, but only that the theft involved the property "of another." ld.
3 In contrast, the dissent makes an argument not presented by Ms. Grijalva in this
court or the trial court (and contrary to RAP 12.1) by focusing on the fact that there was no
express limitation on her use ofthe attorney line. However, Ms. Grijalva was charged and
convicted as an accomplice to the inmates' efforts to evade the phone use policy applicable
to them rather than for abusing an unwritten policy concerning attorney lines. Report of
Proceedings at 787.
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No. 30032-3-111
State v. Grijalva
State v. Lee, 128 Wn.2d 151,158,904 P.2d 1143 (1995); State v. Jefferson, 74 Wn.2d 787,
790,446 P.2d 971 (1968); State v. Easton, 69 Wn.2d 965,967-68,422 P.2d 7 (1966). A
representative oflCS testified at trial concerning the telephone system, the cost of$2.50
per telephone call paid by inmates, and how ICS would then split that sum with the jail for
each paid call. The State clearly proved that the telephone services belonged to "another."
It was not Ms. Grijalva's telephone service.
Ms. Grijalva argues that the telephone service belonged to ICS, not the YCJ or the
county's corrections department. However, that argument is a statutory irrelevancy.
Whenever the State undertakes to prove an extraneous element, that element becomes the
law of the case when it is included in ajury instruction; an appellate court's sufficiency
review must thus include the additional element. State v. Hickman, 135 Wn.2d 97,
101-05,954 P.2d 900 (1998). Assuming that the same doctrine applies in a bench trial,
the question then would become whether the prosecutor attempted to prove that the
victim's identity as an element of the case. That did not happen here. Both ICS and YCJ
were identified as the entities that would lose revenue from the free telephone calls, but
the prosecutor never included either of them as elements of his case.
Neither of Ms. Grijalva's arguments are persuasive. The State proved its case, and
the trial court entered a series of powerful findings detailing Ms. Grijalva's knowledge of
the use of the free telephone call system by Ms. Scribner and her friends, as well as her
assistance to their use of the system. She clearly was an accomplice to their actions. She
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No. 30032-3-III
State v. Grijalva
was captured on quite a few of the recordings and knew what Ms. Scribner and her
friends were using the free telephone calls to discuss. None of them involved legal
business, and none of the recorded calls involved her clients in any manner. She allowed
a friend to circumvent the ICS system in order to save money, thus costing ICS and the
county over $2,000 in lost revenue. This was theft by any stretch of the imagination.
The evidence amply supported the bench verdict on the charge of second degree
theft.
Introduction ofContraband. Ms. Grijalva also challenges her conviction for third
degree introduction of contraband. While we have some sympathy for her position, we
nonetheless have to conclude that the evidence supported the verdict.
A person commits third degree introduction of contraband when she "knowingly
and unlawfully provides contraband to any person confined in a detention facility."
RCW 9A.76.160(l). "Contraband," in turn, is defined as a "thing which a person
confined in a detention facility is prohibited from obtaining or possessing by statute, rule,
regulation, or order ofa court." RCW 9A.76.010(1). The amended information charged
Ms. Grijalva with providing ~'contraband, a cellular phone, to a person in a detention
facility." CP at 10.
Ms. Grijalva argues that she was permitted, as an attorney, to bring a cell phone
into the jail, and that professional visitors such as attorneys were permitted to bring cell
phones with them to the jail. She notes that the jail changed its policy for professional
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No. 30032-3-111
State v. Grijalva
visitors and expressly prohibited cell phones after this incident. Her arguments, however,
miss the mark. She was not charged for bringing her cell phone into the jail. She was
charged-and convicted-for lending it to an inmate. The policy governing professional
visitors is not apropos.
Instead, the question was whether cell phones were contraband when possessed by
an inmate. The testimony at trial, reflected in finding of fact 11, indicated that there was
"much signage in the Yakima County Jail that forbids cell phones in secure areas."
CP at 68. From that fact the court inferred that Ms. Grijalva had knowledge that inmates
were not permitted cell phones. Although Ms. Grijalva challenges finding 12, it is
certainly a reasonable inference from the evidence. A regular visitor to the challenge
would necessarily be on notice that inmates could not have cell phones. 4
Additionally, Ms. Grijalva recognized her mistake right after she made it and
acknowledged the error to jail personnel. From this evidence, the trial court could
properly conclude that cell phones were contraband when possessed by inmates and that
Ms. Grijalva knew that fact. Accordingly, the conclusion that she knowingly introduced·
contraband was supported by sufficient evidence in the record.
Although we uphold the conviction for third degree introduction of contraband, we
do question the decision to file charges in these circumstances. Ms. Grijalva dialed the
4Indeed, the existence of the ICS phone system that Ms. Grijalva worked to
bypass was additional evidence that she knew inmates were not permitted to have
personal telephones.
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No.30032-3-II1
State v. Grijalva
telephone number herself and passed the phone for a brief conversation between Mr.
George and his mother. The phone was promptly returned and there was no danger of
some other contraband being passed along at the same time. The incident occurred in the·
view ofjail personnel. This violation was de minimis and hardly seems worth the effort
to prosecute it as a crime when there were other measures available to ensure no future
violations by Ms. Grijalva.
The evidence supported both bench verdicts.
Financial Obligations
Ms. Grijalva also challenges the inclusion in the judgment and sentence form of a
standard paragraph stating that she had the means to pay the costs of incarceration and
listing the rates. CP 77 (~4.D.4). Her argument that this finding is not supported by the
record fails for two reasons.
First, she did not raise this issue at the trial court where it could have easily been
addressed and, if necessary, corrected. These types of challenges cannot be presented for
the first time on appeal. State v. Duncan, 180 Wn. App. 245, 327 P.3d 699 (2014).
Second, she has presented no evidence that the incarceration costs apply to people, like
her, whose entire sentence has been converted to community service. On this record, it
does not appear that she potentially owes any money for serving a term of community
servIce.
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No.30032-3-II1
State v. Grijalva
For both reasons, this final challenge also fails.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
WE CONCUR:
~,-4.C180 Wn.2d 1, 10,320 P.3d 705 I
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(2014). Substantial evidence exists only if there is a sufficient quantity of evidence in the i
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record to persuade a fair-minded, rational person of the truth of the finding. State v. Hill, 1
123 Wn.2d 641,644,870 P.2d 313 (1994); State v. Atchley, 142 Wn. App. 147, 154,
173 P.3d 323 (2007). A finding of fact is clearly erroneous when, although there is some
evidence to support it, review of all of the evidence leads to a definite and firm conviction
that a mistake has been committed. Wenatchee Sportsmen Ass 'n v. Chelan County,
141 Wn.2d 169, 176,4 P.3d 123 (2000); State v. Lundy, 176 Wn. App. 96, 105-06,
308 P.3d 755 (2013).
Finding of fact 43 is erroneous because there is no evidence to support a conclusion
that the Yakima County Jail had any policy concerning use of the phone lines when
calling attorneys. According to Dan Fessler, Director of the Office of Assigned Counsel,
the Office did not anticipate calls for personal use or to someone living in an attorney's
home. But an expectation does not constitute a policy. Black's Law Dictionary defines
"policy" only in other settings. The lay dictionary defines "policy," in our context, as "a
definite course or method of action selected from among alternatives and in the light of
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No. 30032-3-111
State v. Grijalva - Dissent
given conditions to guide and usually determine present and future decisions."
WEBSTER'S 'fiIIRD NEW INTERNATION~L DICTIONARY 1754 (1993).
The State presented no evidence of even an oral policy concerning phone usage.
The Yakima County Jail adopted no definite course of action for use of the phones. The
State presented significant testimony and many exhibits with regards to jail policies for
introducing contraband into the jail, but nothing regarding phone use. Yakima County
Sheriff Deputy Chad Peterschick testified he knew of no terms or conditions imposed
upon an attorney for receipt of the free calls. Officer Peters chick had assumed attorneys
signed an agreement to participate in the fee phone call arrangement. He attempted to
find an agreement, but found none.
The majority suggests 1 am confusing the possibility of a policy that extends to
attorneys' use of the free line, when the trial court referred, in finding 43, to a policy
inside the jail that applied to inmates' use of the free line. The majority then writes that
there is evidence of an internal jail policy and it cites RP 787 for this purported fact.
RP 787 comes from the closing statement of the State. A fundamental rule posits that an
attorney's argument does not constitute evidence. Green v. A.P.e., 136 Wn.2d 87, 100,
960 P.2d 912 (1998). Anyway, the page reference contains no mention of any jail policy
concerning use of the phone. Exhibit 22 is the Yakima County Department of
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Corrections Inmate Handbook, which contains a section on telephone use. The handbook I
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No.30032-3-III
State v. Grijalva - Dissent
section does not restrict the use of the attorney line. In short, no policy applied to
attorneys or inmates as to the conduct of Kimberly Grijalva or those who called her line.
Theft
Although technically my dissent is based on insufficiency of evidence, the dissent
is centered more upon a disagreement with the trial court's and the majority's view of the
law, not the facts. Also, regardless of whether the jail promulgated a policy regarding
phone usage, the evidence falls short of theft.
The State charged Kimberly Grijalva with second degree theft in violation of
RCW 9A.56.040(l)(a). The Washington criminal code lodges a chapter on theft and
robbery that lists degrees of theft by seriousness and subject matter and provides a maze
of definitions through which one must wander to determine if particular conduct
constitutes theft. Chapter 9A.56 RCW. The second degree theft statute reads:
(1) A person is guilty of theft in the second degree ifhe or she
commits theft of:
(a) Property or services which exceed(s) seven hundred fifty dollars
in value but does not exceed five thousand dollars in value, other than a
firearm as defined in RCW 9.41.010 or a motor vehicle;
Terms in the statute are defined in other sections of the chapter. RCW 9A.56.020
declares: I
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(1) "Theft" means:
(a) To wrongfully obtain or exert unauthorized control over the
property or services of another or the value thereof, with intent to deprive
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him or her of such property or services; or
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No. 30032-3-111
State v. Grijalva - Dissent
(b) By color or aid of deception to obtain control over the property
or services of another or the value thereof, with intent to deprive him or her
of such property or services; or
RCW 9A.56.010 contains many definitions applicable to the theft chapter:
The following definitions are applicable in this chapter unless the
context otherwise requires:
(10) "Obtain control over" in addition to its common meaning,
means:
(a) In relation to property, to bring about a transfer or purported
transfer to the obtainer or another of a legally recognized interest in the
property; or
(b) In relation to labor or service, to secure performance thereof for
the benefits of the obtainer or another;
(11) "Owner" means a person, other than the actor, who has
possession of or any other interest in the property or services involved, and
without whose consent the actor has no authority to exert control over the
property or services;
(15) "Services" includes, but is not limited to, labor, professional
services, transportation services, electronic computer services, the
supplying of hotel accommodations, restaurant services, entertainment, the
supplying of equipment for use, and the supplying of commodities of a
public utility nature such as gas, electricity, steam, and water;
(21) Value.
(a) "Value" means the market value of the property or services at the
time and in the approximate area of the criminal act.
(c) Except as provided in RCW 9A.56.340(4) and 9A.56.350(4),
whenever any series of transactions which constitute theft, would, when
considered separately, constitute theft in the third degree because of value,
and said series of transactions are a part of a criminal episode or a common
scheme or plan, then the transactions may be aggregated in one count and
the sum of the value of all said transactions shall be the value considered in
determining the degree of theft involved.
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No. 30032~3-III
State v. Grijalva - Dissent
For purposes of this subsection, "criminal episode" means a series of
thefts committed by the same person from one or more mercantile
establishments on three or more occasions within a five-day period.
(22) "Wrongfully obtains" or "exerts unauthorized control" means:
(a) To take the property or services of another;
(b) Having any property or services in one's possession, custody or
control as bailee, factor, lessee, pledgee, renter, servant, attorney, agent,
employee, trustee, executor, administrator, guardian, or officer of any
person, estate, association, or corporation, or as a public officer, or person
authorized by agreement or competent authority to take or hold such
possession, custody, or control, to secrete, withhold, or appropriate the
same to his or her own use or to the use of any person other than the true
owner or person entitled thereto; or
(c) Having any property or services in one's possession, custody, or
control as partner, to secrete, withhold, or appropriate the same to his or her
use or to the use of any person other than the true owner or person entitled
thereto, where the use is unauthorized by the partnership agreement.
The State of Washington's amended information alleged that Ms. Grijalva:
acting as a principal or an accomplice, you or an accomplice
wrongfully obtained and/or exerted unauthorized control over property,
telephone services, of a value exceeding $750 but not more than $5,000,
which was not a firearm or motor vehicle, belonging to Yakima County
Department of Corrections, with intent to deprive Yakima County
Department of Corrections of that property.
CP at 10.
In the context of the prosecution of Kimberly Grijalva, the State of Washington
needed to prove Grijalva: (l) wrongfully obtained or exerted unauthorized control over
(2) the property or services of another or the value thereof, (3) with intent to deprive him
or her of such property or services, (4) between $750 and $5,000 in value. The State's
proof failed for at least two reasons. Kimberly Grijalva did not wrongfully obtain or
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No.30032-3-III
State v. Grijalva - Dissent
exert unauthorized control over property or services. Property or services of "another"
means the property or services of the "owner" as alleged by the State, and Grijalva took
no property or services of the alleged victim, Yakima County. She took no property or
services even from the owner of the phone system, ICS.
Owner
For purposes of theft, the meaning of "property of another" is derived from the
definition of "owner." State v. Pike, 118 Wn.2d 585,589,826 P.2d 152 (1992);
State v. Lau, 174 Wn. App. 857, 868,300 P.3d 838 (2013). The definition of "owner"
"establishes the level of interest necessary to claim a right to property." Pike,
118 Wn.2d at 589. To repeat from above, "owner" means a "person, other than the actor,
who has possession of or any other interest in the property or services involved, and
without whose consent the actor has no authority to exert control over the property or
services." RCW 9A.56.010(1l) (emphasis added). Critical to our discussion is the last f
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clause of the definition.
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To constitute the property of another person, the item must be one in which
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another person has an interest, and the defendant may not lawfully exert control over the I
item absent permission of that other person. State v. Joy, 121 Wn.2d 333,340-41,
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851 P.2d 654 (1993); State v. Jacobson, 74 Wn. App. 715, 719, 876 P.2d 916 (1994). I
Kimberly Grijalva gained access to the free phone program through ICS. She did not ,
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seek and did not need approval from Yakima County. At least, the State presented no
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No.30032-3-III
State v. Grijalva - Dissent
testimony that Grijalva needed permission from county authorities. Yakima County took
action, on June 4,2010, to end Kimberly Grijalva's participation in the program, but it
does not follow that initial permission was needed from the county.
The State might argue that RCW 10.37.090 applies and that it need not have
correctly identified the victim in the information. The statute reads:
When the crime involves the commission of, or an attempt to
commit a private injury, and is described with sufficient certainty in other
respects to identifY the act, an erroneous allegation as to the person injured
or intended to be injured is not material.
I need not address whether the statute, which limits itself to "private injury," applies
when the State alleges the theft of government property, because of other circumstances
in this case.
After the State rested, it sought to amend its information to allege ICS, in addition
to Yakima County, was the victim of the theft. The court granted the motion to amend,
but the State later withdrew the motion when the court cautioned the State that the ruling
might be erroneous based upon case law and prejudice to Kimberly Grijalva. Indeed
Grijalva's counsel may have conducted additional discovery and asked other questions if
he knew the State contended ICS was a victim. The State's limitation of the victim to
Yakima County should be fatal to the theft prosecution.
InState v. Lee, 128 Wn.2d 151,904 P.2d 1143 (1995), the Supreme Court
reversed a conviction and dismissed charges of second degree theft. Although other
grounds supported the dismissal, the court based the decision, in part, upon the ground
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No. 30032-3-111
State v. Grijalva - Dissent
that the purported victim was one other than the victims listed in the information. The
court noted that:
The name of the victim, however, is not superfluous in a theft case,
as the court of appeals correctly observed. Though not a necessary element
of a theft instruction, allegations of ownership must be sufficiently stated in
an information to establish that the property was not that of the accused, to
protect the accused against a second prosecution for the same crime, and to
avoid misleading or embarrassing the accused in the preparation of his or
her defense.
128 Wn.2d at 159.
Property
In conflict with the majority's decision, the State argues that Kimberly Grijalva
took property, not services, of another. The State admits that ICS owned the phone
equipment and even the phone services. The State argues that Yakima County was a
victim because it did not receive revenue it would have otherwise received. But the State
forwards no case that allows conviction of an accused because a non-owner of property
or services did not receive the income it desired.
"Property" is not defined in chapter 9A.56 RCW, but is expansively defined for
the entire criminal code as "anything of value, whether tangible or intangible, real or
personal." RCW 9A.04.110(22). Money is property. State v. Morris, 109 Wash. 490,
.187 P. 350 (1920). But property has not been determined to be prospective income.
To be guilty of theft in the second degree, the accused must "wrongfully obtain"
or "exert unauthorized control" over property of another. RCW 9A.56.020. In tum, for
29
No.30032-3-III
State v. Grijalva - Dissent
one to "wrongfully obtain" or "exert unauthorized control" over property, one must take
possession or custody of the property. RCW 9A.56.010(22). One party might exert
control over future income of another through an assignment of income or an
encumbrance on the income. Kimberly Grijalva never obtained or controlled Yakima
County's prospective income.
Prospective income fits awkwardly into a statutory scheme whereby one obtains
property from another. In criminal cases, fairness dictates that courts should refrain from
using possible but strained interpretations of statutes. State v. Garcia, 179 Wn.2d 828,
837,318 PJd 266 (2014); State v. Bell, 83 Wn.2d 383,388,518 P.2d 696 (1974).
Wrongfully Obtain or Unauthorized Control
Although the State charged Kimberly Grijalva alternatively with wrongfully
obtaining and unauthorized control over property, the State does not argue that Kimberly.
Grijalva intended to use the free phone service for personal use by others when she
registered for the program. Thus, the State must argue that Grijalva asserted
unauthorized control over the program after she rightfully obtained participation in the
program. Yet the State presented no testimony that participation in the program was
conditioned upon refraining from any personal calls.
The director of the Office of Assigned Counsel testified that he or his office did
not anticipate personal calls on the free line. But he did not testilY that this anticipation
was communicated to Kimberly Grijalva. There was no agreement with Grijalva limiting
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No.30032-3-III
State v. Grijalva - Dissent
the purpose of phone calls. If unauthorized use of a service or property ripens into a
crime, at the least there should be some express agreement between the user and owner of
the service as to what use is not authorized. Preferably there should be a written
agreement between the parties.
Unauthorized control over property is generally labeled as "embezzlement." Joy,
121 Wn.2d at 335. I question whether a court has ever considered unauthorized phone
calls during participation in a free phone program as embezzlement.
An enlightening decision is State v. Joy, 121 Wn.2d 333. The jury convicted
defendant Kenneth Joy of five counts of theft, alternatively charged as theft by color or
aid of deception and theft by exertion of unauthorized control over funds paid him by
homeowners for contracting work. The five charges arose out of contracts between Joy
and five unrelated homeowners for repair work. Joy obtained substantial advance
payments from each owner and then never completed the work. Joy returned none of the
advance payments. Joy specifically promised three of the homeowners that he would
purchase material for their respective homes with the advance payment. The promise lay
in written contracts with two of the owners. Joy made no promises to two of the
homeowners that he would apply the advance payment to materials for the respective
homes. Those homeowners anticipated, however, that their respective payments would
be used for purchase of material for their respective homes.
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No. 30032-3-III
State v. Grijalva - Dissent
The Joy court stated the issue at hand was whether the owners had an interest in the
money paid so as to meet the definition of "property of another," and whether defendant.
appropriated that property to his own use, contrary to agreements authorizing defendant to
hold possession of or control the money. The court reasoned that, if the particular
agreement between the owner and defendant restricted the use of the funds to a specific
purpose, the owner would have an interest in the money, i.e., the application of the money
to the purpose for which it was entrusted to defendant. The court based this proposition
upon W. LAFAVE & A. SCOTT, CRIMINAL LAW § 89, at 648 (1972), which read that
embezzlement may occur when a contractor appropriates money, paid in advance on a
contract, which is earmarked to be used only for a construction purpose. The Joy court
upheld convictions of the three charges based upon agreements with owners that advance
payments would be used to purchase materials for the contract work. The court reversed
the convictions on the two remaining contracts in which Joy had given no express promise
to use payment for purchase of materials. The court concluded that "the key is whether
there was a restriction or limitation in the agreements giving the owners an interest in
having the funds applied to the purchase of materials." Joy, 121 Wn.2d at 343.
One might argue that Kimberly Grijalva understood that free calls to her phone
were to be based only on an attorney-client relationship. But contractor Kevin Joy had to
have also understood that money paid to him by homeowners was meant to purchase
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No.30032-3-III
State v. Grijalva - Dissent
materials and pay for employees working on the respective homes. Understandings do
not form the basis of theft.
A conviction in this case sets a dangerous precedent. A worker at a business may
have access to a business phone, and the employer expects that the worker will not place
a long distance call for personal use. The worker may have an emergency and make one
or more calls long distance without reimbursing the employer. Under the majority's
ruling, that worker is now subject to criminal charges. A worker may be given a
company vehicle to drive with the employer expecting the worker to operate the vehicle
only for business purposes. The employee may divert his path for five minutes to buy
some groceries at a store. Under our ruling, that employee is now subject to criminal
charges. Although these examples are not as extreme as the conduct of the Yakima
County Jail inmates and Autumn Scribner, the principle remains the same that the
workers exerted unauthorized control over the property of another because the worker's
use of the property conflicted with the owner's expectations. Ajail may have a policy
that allows an inmate only one cup of coffee per day, but an inmate may sneak an
additional cup on a particular day. Under our ruling, the inmate has committed theft by
violating the jail policy.
The Yakima County Department of Corrections Inmate Handbook contains no
policy restricting use of the attorney phone line. Assuming it did, the handbook contains
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No.30032-3-III
State v. Grijalva - Dissent
a disciplinary process for violations of the policies. Neither the handbook nor a statute
renders a violation of a jail policy to be a crime.
Other problems arise with the conviction of Kimberly Grijalva. The two men,
Matthew Cornell and Bradley McCord, who made almost all of the personal calls
testified at trial. Although Kimberly Grijalva, rather than the State, called both to testify,
the State could have, but did not, ask either if he would have continued to pay for a
thousand dollars worth of phone calls ifhe was unable to call Kimberly Grijalva's
business line. Each man's excessive use of the phone may suggest he would have
continued to pay for calls. Nevertheless, Autumn Scribner's and Matthew Cornell's
complaints about the cost of the calls may suggest the calls would have ended. The trial
court entered no finding of fact that either Bradley McCord or Matthew Cornell would
have paid for any more phone calls if there had not been a free line.
Whether ICS or Yakima County lost revenue because of the abetting by Kimberly
Grijalva in the free phone calls is speculative. More speculative is whether any loss
would have exceeded $750.
I concur in the majority's affirmation of the conviction on the charge of introducing
contraband and with the majority's comments about the State charging Kimberly Grijalva
with a crime for lending cell phone to a prisoner.
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34