State Of Washington v. Jason Campbell ( 2015 )

FILED
COURT OF APPEALS
D V?S! 0NN 11
2515 JUN - 14 AM 8: 35
STA SHINGTOH
BY
IN THE COURT OF APPEALS OF THE STATE OF WASHI
DIVISION II
STATE OF WASHINGTON, No. 45488 -2 -II
Respondent,
v.
UNPUBLISHED OPINION
JASON SCOTT CAMPBELL,
Appellant.
SUTTON, J. — Jason Scott Campbell appeals his convictions for one count of second degree
trafficking in stolen property and two counts of bail jumping. He argues that the trial court
1) misstated the " reckless" element of the second degree trafficking jury instruction, (2) erred by
instructing the jury on second degree trafficking, ( 3) violated his right to control his defense by
instructing the jury on uncontrollable circumstances, ( 4) abused its discretion by instructing the
jury on missing witnesses, ( 5) improperly commented on the evidence in answering a jury
question, and ( 6) violated his right to counsel by denying his counsel' s motion to withdraw.
Holding that ( 1) the trial court correctly stated the " reckless" element of second degree trafficking
in stolen property, ( 2) Campbell waived his objection to giving the second degree trafficking in
stolen property instruction, ( 3) the trial court did not violate his right to control his defense by
instructing the jury on uncontrollable circumstances, ( 4) the trial court abused its discretion in
instructing the jury on missing witnesses, but that error was harmless, ( 5) the trial court did not
No. 45488 -2 -II
improperly comment on the evidence, and ( 6) the trial court did not violate Campbell' s right to
counsel, we affirm.
FACTS
I. STOLEN TIRES LISTED FOR SALE ON CRAIGSLIST
While browsing Craigslist for automobile parts, Matthew Knowlton found a for -sale
advertisement listing four tires and wheels he recognized as his personal property that had been
stolen the week before. Knowlton texted the phone number listed on the advertisement and
contacted law enforcement. After deputy Sonya Matthews spoke with Knowlton, she went to the
address that Knowlton received from the seller, but no one was home when she arrived. She
noticed, however, that the house across the street matched the background in the picture of the
tires and wheels included in the Craigslist advertisement; she was unable to contact anyone at that
house, either.
The next day, Matthews returned to the house that matched the Craigslist picture and spoke
with Jason Campbell. Matthews asked Campbell if he knew anything about stolen tires and wheels
for sale on Craigslist, and he replied that he did not know anything. Campbell brought out a set of
tires and wheels from the garage for Matthews to examine, saying those were the only tires and
wheels on the property. Believing those tires were Knowlton' s stolen property, Matthews read
Mirandal
Campbell the warning.
Campbell continued to deny knowing about the stolen tires and wheels, but said that he
could " probably find something out" from his cousin, Michael Smith. Verbatim Report of
1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 ( 1966).
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No. 45488 -2 -II
Proceedings ( VRP) ( Oct. 8, 2013) at 80. This seemed suspicious to Matthews, so she arrested
Campbell. With Campbell secured in her patrol car, Matthews looked closely at the tires and
determined that they were not Knowlton' s stolen property. Matthews then spoke to Campbell and
told him that she " was convinced" he knew more than he was saying because the background of
the picture on the Craigslist advertisement matched his property. VRP ( Oct. 8, 2013) at 81.
Campbell admitted that Smith had brought tires and wheels to his house and Campbell' s neighbor
had offered to sell them on Craigslist. Campbell told Matthews " he was pretty sure that they were
stolen," because Smith had been involved in theft before, but Campbell did not ask where Smith
got them. VRP ( Oct. 8, 2013) at 81.
The State charged Campbell with one count of second degree trafficking in stolen property.
The State later amended the information to increase Campbell' s charge to first degree trafficking
in stolen property and also charged Campbell with two counts of bail jumping after he failed to
appear at two court hearings.
II. TRIAL
Before trial, defense counsel moved to withdraw. Defense counsel asserted a conflict of
interest with Campbell because defense counsel' s law partner represented Smith on an unrelated
misdemeanor traffic crime. Defense counsel explained that if Smith were called as a witness in
Campbell' s case defense counsel " might get to sensitive information." VRP ( July 22, 2013) at 5.
However, he did not have specific information in mind. The trial court did not make a conflict of
interest finding and denied defense counsel' s motion to withdraw.
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A. Second Degree Trafficking in Stolen Property Jury Instruction
The State proposed a jury instruction on second degree trafficking in stolen property as a
lesser included offense. The trial court asked if Campbell objected and Campbell replied, " Your
Honor, there is objection... [ Campbell' s] position is it' s all or nothing." VRP ( Oct. 9, 2013) at
222 -23. The trial court instructed the jury on second degree trafficking in stolen property.
The " to convict" instruction provided that Campbell was guilty of second degree
trafficking in stolen property if the State proved beyond a reasonable doubt that Campbell
1) " trafficked in stolen property," ( 2) " acted recklessly," and ( 3) the acts occurred in the state of
Washington. Clerk' s Papers ( CP) at 41. The instructions defined recklessly as follows: " A person
acts recklessly when he or she knows of and disregards a substantial risk that a wrongful act
may occur and this disregard is a gross deviation from conduct that a reasonable person would
exercise in the same situation." CP at 40.
B. Uncontrollable Circumstances and Missing Witness Instruction
When Campbell took the stand, defense counsel asked Campbell why he failed to appear
at the two court hearings related to his bail jumping charges. The State objected and Campbell
provided an offer of proof outside of the jury' s presence. Campbell explained that he had arranged
for first his friend and then his mother to drive him to court because he did not have a driver' s
license. In both instances, the person did not arrive. Campbell received a ride from a teacher at a
nearby elementary school one time and walked to court the other tune, but each day he arrived at
court after the hearing had already ended.
The trial court ruled that if Campbell presented this testimony to the jury, the trial court
instruct the the affirmative defense. Campbell
would jury on uncontrollable circumstances
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testified in front of the jury consistent with his offer of proof, and the trial court instructed the jury
on uncontrollable circumstances. CP at 46 ( " An `uncontrollable circumstance' means an act of
nature such as a flood, earthquake, or fire ... or an act of man such as an automobile accident. ").
The trial court also instructed the jury on missing witnesses over Campbell' s objection, reasoning
that it was " only fair ",to the State to do so because Campbell had given testimony about two people
who had failed to give him a ride to court but did not call them as witnesses. VRP ( Oct. 9, 2013)
at 227.
C. Jury Question
During deliberations, the jury sent a question to the trial court:
Instruction 15 [2] says trafficking in stolen property in the second degree is a class
C felony. Is trafficking in stolen property in the first degree a class B or class C
felony? We' re confused because Instruction No. 10[ 3] says [ Campbell] is charged
with one count of trafficking in stolen property in the first degree, while the felony
complaint and information seem to show that [ Campbell] is charged with
trafficking in stolen property in the second degree.
CP at 50. The parties discussed the State' s original charging document, which reflected a charge
of second degree trafficking in stolen property, but was later amended to first degree trafficking in
stolen property and that the jurors probably perceived this as conflicting information.
The trial court read aloud its proposed answer: " The original complaint and information
was for trafficking in the second degree, the amended information has been filed. The defendant
is currently charged with trafficking in the first degree, each of the charges [ are] either a Class B
2
Instruction 15 provided that "[ t] rafficking in Stolen Property in the Second Degree is a class
C felony." CP at 43.
3
Instruction 10 provided that "[ t]he defendant is charged in count one with trafficking in stolen
property in the first degree." CP at 38.
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or Class C felony." VRP (Oct. 9, 2013) at 267 -68. The trial court believed that its answer helped
clarify the confusion they see with one exhibit which had the original complaint and information."
VRP ( Oct. 9, 2013) at 268. Campbell stated in response, " Your Honor, I' m proposing that we just
indicate to them that they have the law and the instructions as given to them and they should
decide." VRP ( Oct. 9, 2013) at 269. The trial court replied that Campbell' s suggestion was " the
easy way out, but I don' t feel comfortable when [ the jurors] raise a specific issue that is legal in
nature as opposed to potential comment on the evidence." VRP ( Oct. 9, 2013) at 269. The trial
court answered the jury' s question as it had proposed.
The jury did not reach a verdict on first degree trafficking in stolen property, but found
Campbell guilty of second degree trafficking and both counts of bail jumping. Campbell appeals.
ANALYSIS
I. RECKLESSNESS JURY INSTRUCTION
Campbell argues that the jury instruction defining recklessness misstated an element of
second degree trafficking because it did not require the jury to find that Campbell acted recklessly
in relation to a specific crime.4 We disagree.
4 The State argues that we should not review this claim of error because Campbell did not preserve
it with an adequate objection. Because it is reversible error to give the jury an instruction that
relieves the State of its burden to prove every element beyond a reasonable doubt, Campbell may
challenge the jury instruction for the first time on appeal. State v. Peters, 163 Wash. App. 836, 847,
261 P.3d 199 ( 2011). Thus, we do not address the State' s argument that Campbell failed to
properly object.
Because the to- convict jury instruction given by the court was correct, it is not necessary to address
Campbell' s other arguments attacking this jury instruction.
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No. 45488 -2 -II
We review legal sufficiency of jury instructions de novo. State v. Walker, 182 Wash. 2d 463,
481, 341 P.3d 976 ( 2015), petition for cert. filed, (Apr. 22, 2015). Jury instructions are insufficient
if they relieve the State of its burden to prove every essential element ofthe charged crime. Walker,
182 Wash. 2d at 481. If a to- convict instruction includes every element that the State must prove
beyond a reasonable doubt, the generic instruction defining recklessness is sufficient. State v.
Johnson, 180 Wash. 2d 295, 306 -07, 325 P.3d 135 ( 2014). 5 The to- convict instruction in this case
satisfies the rule in Johnson.
A person commits second degree trafficking in stolen property when he or she " recklessly
6
traffics in stolen property. " RCW 9A. 82. 055( 1). Here, the trial court instructed the jury that a
person acts " recklessly" when he or she knows of and disregards " a substantial risk that a wrongful
act may occur." CP at 40. The to- convict instruction told the jury that it must find Campbell guilty
if it found that ( 1) Campbell trafficked in stolen property, ( 2) he acted recklessly, and ( 3) the acts
occurred in the state of Washington. Under these circumstances, the specific act of trafficking in
stolen property was the only element to which the term " recklessly" could have referred. As in
Johnson, the to- convict instruction accurately informed the jury of every element necessary to find
Campbell culpable of second degree trafficking in stolen property. Johnson, 180 Wash. 2d at 306.
Thus, the jury instructions did not relieve the State of its burden of proof.
5 Prior opinions from our Courts of Appeal have held that a recklessness instruction must mention
the specific crime that the defendant disregarded a substantial risk of occurring, rather than merely
a " wrongful act" occurring. Peters, 163 Wash. App. at 847; State v. Harris, 164 Wash. App. 377, 383,
263 P.3d 1276 ( 2011).
6
A person acts recklessly when he or she " knows of and disregards a substantial risk that a
wrongful act may occur" and " disregard of such substantial risk is a gross deviation" from how a
reasonable person would act in the same situation. RCW 9A.08. 010( 1)( c).
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II. SECOND DEGREE TRAFFICKING IN STOLEN PROPERTY JURY INSTRUCTION
Campbell next argues that the trial court erred in instructing the jury on second degree
trafficking because the evidence at trial did not support a jury finding that he acted recklessly as is
required to convict him of second degree trafficking, a lesser included offense. Because we hold
that Campbell did not properly preserve the error, we do not reach this issue.
We may decline to review a claim of error that was not raised in the trial court, unless the
error was manifest and affected a constitutional right. RAP 2. 5( a). The purpose of this rule is to
allow the opposing party to respond to the claim of error and give the trial court the opportunity to
correct it. State v. Davis, 175 Wash. 2d 287, 344, 290 P.3d 43 ( 2012), cent. denied, 134 S. Ct. 62
2013). Campbell' s objection, that his case was " all or nothing," did not advise the trial court of
the basis on which he now claims error: insufficient evidence to support the instruction. VRP
Oct. 9, 2013) at 223. Campbell' s objection did not provide the State an opportunity to respond to
the claim of insufficient evidence or allow the trial court to consider it. Therefore, Campbell did
not preserve the error for review on appeal.
Furthermore, Campbell cannot show that the error is a " manifest error affecting a
constitutional right." RAP 2. 5( a). A jury may find a criminal defendant guilty of any inferior
degree of the charged crime. RCW 10. 61. 003. RCW 10. 61. 003 provides criminal defendants with
sufficient constitutional notice of the crimes of which they may be convicted. State v. Berlin, 133
Wash. 2d 541, 545, 947 P.2d 700 ( 1997). Thus, the trial court' s decision to instruct the jury on second
degree trafficking in stolen property is not of constitutional magnitude. Because Campbell raises
this claim of error for the first time on appeal, we decline to review its merits.
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No. 45488 -2 -II
III. UNCONTROLLABLE CIRCUMSTANCES AFFIRMATIVE DEFENSE
Campbell next argues that the trial court violated his right to control his defense when it
instructed the jury on uncontrollable circumstances over his objection. We disagree.
An accused has the right to control his or her defense under the Sixth Amendment. State
v. Lynch, 178 Wash. 2d 487, 491, 309 P.3d 482 (2013). Instructing the jury on an affirmative defense
over the defendant' s objection violates the Sixth Amendment when imposing the affirmative
defense .infringes upon the defendant' s "' independent autonomy [ he or she] must have to defend
against charges. "' Lynch, 178 Wash. 2d at 493 ( quoting State v. Coristine, 177 Wash. 2d 370, 377, 300
P.3d 400 ( 2013)). We review constitutional violations de novo. Lynch, 178 Wash. 2d at 491.
Jury instructions must properly inform the jury of the law, allow each party to argue its
case theory, and may not mislead the jury. State v. McCreven, 170 Wash. App. 444, 462, 284 P.3d
793 ( 2012). A jury instruction that fails to make the applicable legal standard manifestly apparent
to the average juror amounts to a constitutional error that is presumed prejudicial. McCreven, 170
Wash. App. at 462.
When Campbell took the stand, defense counsel asked Campbell why he had not arrived
at his court hearings on time. The State objected and, in Campbell' s offer of proof, he explained
that he arrived late on both days because his friend and mother had failed to give him a ride as
7 Campbell argues that the trial court' s instruction on uncontrollable circumstances also violated
his right to counsel. Because we hold that the trial court did not err, we do not address Campbell' s
Sixth Amendment argument on this issue.
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No. 45488 -2 -I1
they had agreed. The trial court ruled that Campbell could testify to this information, but if
Campbell did testify as to his reasons for not being at his court hearings, the jury would be
instructed on the only defense to bail jumping: uncontrollable circumstances. Campbell chose to
testify as he wished with full knowledge that the trial court would instruct the jury as it informed
Campbell it would. Under these facts, the trial court did not infringe upon Campbell' s independent
dignity and autonomy to control his defense. Lynch, 178 Wash. 2d at 493.
Furthermore, once Campbell elected to testify as he wished, the trial court was required to
instruct the jury on uncontrollable circumstances so as to not allow the jury to be misled.
McCreven, 170 Wash. App. at 462. Without the affirmative defense instruction, the jury instruction
on bail jumping would have misled the jury to believe that Campbell' s reason for not appearing
excused his absence. The trial court did not violate Campbell' s right to control his defense by
instructing the jury on uncontrollable circumstances.
IV. MISSING WITNESS JURY INSTRUCTION
Campbell argues that the trial court abused its discretion in giving a missing witness jury
instruction. The missing witness jury instruction permitted the jury to infer that Campbell' s
friend' s and mother' s testimony, the two people who were supposed to drive him to his court
hearings, would have been damaging because if their testimony would have been favorable to him,
8
he would have called them as witnesses. The trial court abused its discretion in giving this
instruction, but the error was harmless.
8 The missing witness instruction provided that:
If a person who could have been a witness at the trial is not called to testify, you
may be able to infer that the person' s testimony would have been unfavorable to a
party in the case. You may draw this inference only if you find that:
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No. 45488 -2 -II
We review the trial court' s decision to give a specific instruction for abuse of discretion.
In re Det. ofAlsteen, 159 Wn. App. 93, 99, 244 P.3d 991 ( 2010). A trial court abuses its discretion
when it applies an incorrect legal analysis. State v. Tobin, 161 Wash. 2d 517, 523, 166 P.3d 1167
2007). Jury instructions are sufficient if substantial evidence supports them, they allow the parties
to argue their theories of the case, and they properly inform the jury of the applicable law. State
v. Clausing, 147 Wash. 2d 620, 626, 56 P.3d 550 ( 2002).
Here, Campbell does not argue that the language of the missing witness instruction was
legally incorrect; rather, he argues that the trial court incorrectly gave the missing witness
instruction because the facts did not permit application of the missing witness doctrine. The
missing witness doctrine allows the jury to infer that a witness' s testimony would have been
damaging where it would be natural for a party to produce a witness because the facts known to
the witness would be favorable but that party fails to do so. State v. Blair, 117 Wash. 2d 479, 488,
816 P.2d 718 ( 1991). This inference is not permitted, however, if (1) the testimony would be
cumulative or unimportant, (2) the witness' s absence is satisfactorily explained, or ( 3) the witness
is equally available to both parties. State v. Montgomery, 163 Wash. 2d 577, 598 -99, 183 P.3d 267
1) The witness is within the control of, or peculiarly available to, that party;
2) The issue on which the person could have testified is an issue of fundamental
importance, rather than one that is trivial or insignificant;
3) As a matter of reasonable probability, it appears naturally in the interest of that
party to call the person as a witness;
4) There is no satisfactory explanation of why the party did not call the person as
a witness; and
5) The inference is reasonable in light of all the circumstances.
CPat47.
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No. 45488 -2 -II
2008). Where the inference is permitted, the party against whom the rule operates has the burden
of explaining the witness' s absence. Blair, 117 Wash. 2d at 489.
Campbell testified that he did not appear in court after Campbell' s friend and mother failed
to give him a ride. Because neither Campbell' s friend nor his mother testified, the trial court gave
a missing witness instruction. However, the State did not have an opportunity to interview
Campbell before trial due to his Fifth Amendment right against self incrimination.
- Thus, the State
did not have equal access to subpoena Campbell' s friend and mother because it did not know the
witnesses' names until Campbell testified.
But these witnesses were immaterial, and according to the State, Campbell' s testimony
about his rides was irrelevant to the bail jumping charge. If Campbell' s testimony was not a
defense to bail jumping, neither could his friend' s nor his mother' s testimony operate as a defense.
The State does not explain how these witnesses would have been helpful to Campbell' s defense
and instead relies on its argument that the witnesses were not equally available. The missing
witness doctrine, however, does not employ a factor test as the State' s argument suggests; the party
asserting the missing witness doctrine must satisfy all three prongs of the test stated in Blair. Blair,
117 Wash. 2d at 488 -89; Montgomery, 163 Wash. 2d at 598 -99. Because Campbell testified to the same
events that his friend and mother would have presumably testified to as well, their testimony would
have been both cumulative to Campbell' s testimony and immaterial to Campbell' s defense to the
bail jumping charges. Thus, the trial court abused its discretion by instructing the jury on missing
witnesses.
Although the trial court abused its discretion in giving the missing witness jury instruction,
any error was harmless. An erroneous instruction is harmless if,based on the facts of the particular
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No. 45488 -2 -II
case, it appears beyond a reasonable doubt that the error did not contribute to the jury' s verdict.
Montgomery, 163 Wash. 2d at 600. To prove bail jumping, the State must have proved that ( 1)
Campbell knew about the requirement to appear and ( 2) he failed to do so. RCW 9A.76. 170( 1).
The trial court instructed the jury that it must find both of these elements of the crime beyond a
reasonable doubt and Campbell admitted that he knew he was required to come to court on a
particular date and that he failed to do so. 9 Even if the trial court had not given the missing witness
instruction, there is no likelihood that it contributed to the jury' s verdict. Any error in giving the
missing witness instruction was harmless.
V. TRIAL COURT' S RESPONSE TO JURY QUESTION
Campbell argues that the trial court improperly commented on the evidence in its answer
to the jury' s question. We disagree.
A. Campbell Properly Objected
The State argues that Campbell did not preserve this issue for appeal because he did not
object, citing State v. Cordero, 170 Wn. App. 351, 371, 284 P.3d 773 ( 2012). We
properly
disagree.
9 The to convict instruction required the jury to find four elements beyond a reasonable
doubt:
1) That on or about January 28th, 2013, the defendant failed to appear before a
court;
2) That the defendant was charged with a class B or class C felony;
3) That the defendant had been released by court order with knowledge of the
requirement of a subsequent personal appearance before that court; and
4) That the acts occurred in the State of Washington.
CP at 44. Elements two and four were undisputed at trial.
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No. 45488 -2 -II
In Cordero, the defendant did not preserve error when he failed to specifically object to the
trial court' s proposed answer and, instead, proposed a different answer. Cordero, 170 Wash. App.
at 371. The record here is distinguishable from Cordero because the context of Campbell' s
discussion with the trial court and the State makes it clear that the trial court understood the nature
of Campbell' s objection.
After the trial court read aloud its proposed answer to the jury' s question, the State said, " I
agree. That' s fine." VRP ( Oct. 9, 2013) at 268. Campbell immediately replied, " Well, Your
Honor, you read them the charges against the defendant." VRP ( Oct. 9, 2013) at 268. The trial
court and the parties then discussed the jury' s confusion and the evidence presented to the jury.
During this colloquy, the trial court twice acknowledged that the basis of Campbell' s objection
was to prevent a comment on the evidence. Campbell then proposed an answer at the trial court' s
urging. VRP ( Oct. 9, 2013) at 269 ( " The Court: [ Defense counsel], any association with you?
Defense counsel]: Your Honor, I' m proposing that we just indicate to them that they have the
law and the instructions as given to them and they should decide. ").
Campbell' s colloquy with the trial court made it clear that he disagreed with the trial court' s
answer to the jury' s question and that the trial court understood the reason for his objection.
Campbell properly objected.
B. Trial Court Did Not Comment on Evidence
Campbell argues that the trial court commented on the evidence by telling the jury that the
second degree trafficking in stolen property charge against Campbell had been amended to first
degree trafficking in stolen property and explaining that first degree trafficking was a class B
felony. We hold that the trial court did not improperly comment on the evidence.
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The trial court may give the jury additional instructions on a point of law according to its
discretion. State v. Kindell, 181 Wn. App. 844, 850, 326 P.3d 876 ( 2014). The trial court cannot
answer jury questions in a way that relieves the State of its burden of proof or add a new legal
theory that the parties did not have an opportunity to argue. Kindell, 181 Wash. App. at 850; State
v. Becklin, 163 Wash. 2d 519, 529, 182 P.3d 944 ( 2008). We review the legal accuracy of the trial
court' s jury instructions de novo. Kindell, 181 Wash. App. at 850.
The to- convict instruction for the first count of bail jumping in this case required the State
to prove that Campbell was charged with a " class B or class C felony" at the time he did not appear
for his hearing. 10 CP at 44. The jury' s original instructions did not inform the jury whether
court .
first degree trafficking in stolen property, Campbell' s charge at trial, was a class B or class C
felony; the jury was instructed only that second degree trafficking in stolen property, Campbell' s
charge when he missed two court hearings, was a class C felony. The trial court admitted as an
exhibit the State' s original felony complaint and information that listed Campbell' s original charge
of second degree trafficking in stolen property, but the jury was not given information that this
charge had been amended to first degree trafficking in stolen property. In its answer to the jury' s
inquiry about this discrepancy, the trial court told the jury that an amended information had been
filed and Campbell was currently charged with first degree trafficking in stolen property.
This answer was not a comment on the evidence because the trial court' s answer to the jury
merely clarified confusion on a procedural issue. The State presented evidence at trial that
Campbell was charged with second degree trafficking and that he failed to appear at two court
1° In contrast, the to- convict instruction for the second count of bail jumping required proof that
Campbell was charged with a class C felony at the time he failed to appear.
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No. 45488 -2 -II
hearings. The trial court instructed the jury that Campbell' s charge at the time he failed to appear
was a class C felony, but the to- convict instruction for Campbell' s first count of bail jumping stated
the elements for first degree trafficking in stolen property. Informing the jury of the amendment
of Campbell' s charge from second to first degree trafficking in stolen property did not relieve the
State of its burden to prove each element of the crimes charged nor did it add a new legal theory
the parties did not have an opportunity to argue. Thus, the fact that Campbell' s charge was
amended does not amount to a new theory of culpability and it did not change any element that the
State was required to prove beyond a reasonable doubt. The trial court' s answer was not an
improper comment on the evidence.
VI. DEFENSE COUNSEL' S MOTION TO WITHDRAW
Lastly, Campbell argues that the trial court improperly denied his counsel' s motion to
withdraw because defense counsel' s duty of loyalty was likely to be materially limited due to
defense counsel' s firm' s responsibilities to Smith, who was a potential defense witness. The trial
court properly denied defense counsel' s motion to withdraw because he did not present an actual
conflict of interest.
The Sixth Amendment guarantees the right to effective assistance of counsel. U. S. CONST.
amend. VI; In re Pers. Restraint of Gomez, 180 Wash. 2d 337, 348, 325 P.3d 142 ( 2014). This right
includes the right to conflict -free counsel at all critical stages of prosecution. Gomez, 180 Wash. 2d
at 348. We review de novo whether a conflict of interest precludes continued representation.
Gomez, 180 Wash. 2d at 347.
The trial court has a duty to investigate potential conflicts of interest when it knows or
reasonably should know of a conflict of interest between counsel and his or her client. State v.
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Regan, 143 Wn. App. 419, 425 -26, 177 P.3d 783 ( 2008). When a defendant or attorney alerts the
trial court to a conflict, the trial court must appoint substitute counsel or take " adequate steps" to
determine whether the risk of a conflict of interest is too remote to require substitute counsel.
Holloway v. Arkansas, 435 U.S. 475, 484, 98 S. Ct. 1173, 55 L. Ed. 2d 426 ( 1978). On appeal, a
defendant must demonstrate that an actual conflict of interest adversely affected trial counsel' s
performance. State v. Dhaliwal, 150 Wash. 2d 559, 570, 79 P.3d 432 ( 2003). A defendant must
show how concurrent representation affects trial counsel' s performance. Dhaliwal, 150 Wash. 2d at
573. If two matters in an alleged conflict are not substantially related, we will not presume that
confidential information was disclosed requiring disqualification. State v. Hunsaker, 74 Wash. App.
38, 47, 873 P.2d 540 ( 1994).
Here, defense counsel moved to withdraw, claiming a conflict of interest, because his firm
represented Smith on a factually unrelated misdemeanor traffic offense. The trial court inquired
into defense counsel' s asserted conflict of interest. Defense counsel told the trial court that he did
not have any information that would lead to uncovering sensitive information from Smith. Thus,
the trial court found the record insufficient to find a conflict. The trial court did not err in denying
defense counsel' s motion to withdraw.
We hold that ( 1) the trial court correctly stated the " reckless" element of second degree
trafficking in stolen property, ( 2) Campbell waived his objection to giving the second degree
trafficking in stolen property instruction, ( 3) the trial court did not violate his right to control his
defense by instructing the jury on uncontrollable circumstances, ( 4) the trial court abused its
discretion in instructing the jury on missing witnesses, but that error was harmless, ( 5) the trial
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No. 45488 -2 -II
court did not improperly comment on the evidence, and ( 6) the trial court did not violate
Campbell' s right to counsel, we affirm.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06.040,
it is so ordered.
We concur:
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