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State v. Love

Court of Appeals of Washington, Division 3

September 24, 2013

STATE OF WASHINGTON, Respondent,
v.
UNTERS L. LOVE, Appellant.

OPINION

KORSMO, C.J.

Mr. Unters Love challenges his conviction for six counts of second degree theft and one count of bail jumping on the basis that the court erred in considering his challenges for cause at sidebar during jury selection. He also argues that he should have been present at the sidebar conference and that a postdated check that was cancelled before it came due had no value under our theft statute. We conclude that the court did not close the courtroom, Mr. Love has not shown that his due process claim was manifest, and that the check did have value at the time it was acquired. Accordingly, we affirm the convictions.

FACTS

The noted charges were filed in three different cause numbers, but all of the matters proceeded to a single jury trial Mr, Love was represented by counsel, although their relationship appeared on the record to be strained on occasion.

At the conclusion of voir dire, the trial judge called the attorneys forward for a bench conference to discuss challenges for cause; the record does not reflect whether Mr. Love joined the conference. Defense counsel challenged jurors 15 and 30 for cause; the prosecutor had no objection and the court struck the two jurors for cause. Counsel also discussed three other jurors, but no challenges were raised to those jurors after it appeared they were too far down the list to end up serving on the panel. Counsel also both assented to the trial judge's suggestion that two alternates be used. The court reporter then noted that the bench conference concluded.

At that point, the transcript reads: "(Peremptory challenge process is being conducted.)" The judge explained to the jurors that this process "generally takes a couple minutes, so if you want to stand and stretch, talk quietly amongst yourselves, feel free." Report of Proceedings (RP) at 134. The record of jurors shows that the prosecutor exercised one peremptory challenge. Defense counsel waived his peremptory challenges and the prosecutor waived further challenges. Both declined to strike any alternate i jurors.[1]

After the judge's remarks inviting the jurors to relax, the transcript reports: "(Peremptory challenges continuing, )" RP at 134. The next line of the report of proceedings contains the beginning of the following exchange:
THE DEFENDANT: Your Honor, may I—may I approach the bench? THE COURT: No.
THE DEFENDANT: Please, may I approach the bench, your Honor? THE COURT: No.
THE DEFENDANT: Mr. Knox cannot represent this case. THE COURT: Sir, if you say one more word.... (The defendant sat down.)

RP at 135.

The essence of the charges against Mr. Love was that he would advertise and sign leases with people for residences that he did not own and collect their down payments for himself. One of the counts at trial involved a victim, Ms. L. who gave him a postdated check along with a $500 money order. She had second thoughts about the transaction and cancelled the check before the date on the check; Mr. Love never presented the check to the bank. Ms. L. never saw the money order again.

The jury convicted Mr. Love as charged. The court imposed a standard range sentence term. Mr. Love then timely appealed to this court. After the decision in State v. Sublett, 176 Wn.2d 58, 292 P.3d 715 (2012), the parties provided ...


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