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State v. Miller

Court of Appeals of Washington, Division 2

January 22, 2014

The State of Washington, Respondent,
v.
Thomas E. Miller, Appellant

Page 1144

Appeal from Lewis County Superior Court. Docket No: 11-1-00721-3. Date filed: 03/01/2012. Judge signing: Honorable Richard Lynn Brosey.

Jodi R. Backlund and Manek R. Mistry (of Backlund & Mistry ), for appellant.

Jonathan L. Meyer, Prosecuting Attorney, and Sara I. Beigh, Deputy, for respondent.

AUTHOR: Christine Quinn-Brintnall, J. We concur: J. Robin Hunt, P.J., Bradley A. Maxa, J.

OPINION

Page 1145

[179 Wn.App. 95] Quinn-Brintnall, J.[*]

¶ 1 A jury found Thomas Miller guilty of second degree theft and making a false statement in application for or assignment of certificate of title to a tractor-trailer. Miller appeals, arguing that (1) the trial court violated his and the public's right to an open and public trial by meeting with counsel in chambers; (2) the trial court violated his

Page 1146

right to be present by discussing a statute with counsel in chambers; (3) insufficient evidence supports that his statement was false, an element of his application for or assignment of certificate of title conviction; and (4) the trial court improperly commented on the evidence by instructing the jury on the statutory process for legally claiming title to found property. We affirm.

FACTS

¶ 2 In July 2010, Aubrey Cole parked his 53-foot tractor-trailer outside the Great Wall Chinese Restaurant in Silver Creek, Washington. Cole told a restaurant employee that he was parking his tractor-trailer, wrote down his telephone number, and asked the employee to call him if there was any problem.

¶ 3 Miller was secretary and registered agent for the Great Wall restaurant. Miller believed that Cole's tractor-trailer was illegally parked at the restaurant and called the police to have it removed. Lewis County Sheriff's Deputy Matthew McKnight told Miller to contact a tow company if he wanted the tractor-trailer civilly impounded. McKnight also gave Cole's address to Miller.

¶ 4 On October 4, Miller mailed Cole an affidavit for lost title, the release of interest for the tractor-trailer, and a note asking Cole to contact him. Upon receiving the documents, Cole immediately tried to contact Miller, leaving Miller a voice mail message. Cole went to the Great Wall restaurant to move his tractor-trailer, but Miller had blocked access to [179 Wn.App. 96] the tractor-trailer with his van and had removed the tractor-trailer's license plate. A few days later, Cole met Miller at the Great Wall restaurant parking lot. Miller told Cole that he needed to pay $200 before Cole could remove the tractor-trailer. Cole said he would give Miller $100. Cole returned the next day with $100 but found that his tractor-trailer had been moved to a locked facility across the street from the restaurant. Cole reported his tractor-trailer stolen on October 13.

¶ 5 On October 26, Miller went to the Department of Licensing (DOL) and signed a " Three-Year Registration Without Title Affidavit." Ex. 4. The affidavit contained the following preprinted language: " I certify I am the rightful owner of this vehicle/vessel having obtained ownership from the last rightful owner. The circumstances under which I obtained ownership and the reasons satisfactory evidence of ownership is unavailable are: ... ." Ex. 4. Under this preprinted language, Miller handwrote the following: " Trailer was left on my property, attempted to get ahold [sic] of owner of record by certified mail with return receipt with no reply." Ex. 4. The DOL issued Miller a " Vehicle Title Application/Registration Certificate" that stated in the comment section, " [N]o title issued - ownership in doubt." Ex. 4 (capitalization omitted).

¶ 6 On October 30, Miller asked Chuck Norris if he wanted to purchase a " trailer that had been abandoned on his property." Report of Proceedings (RP) (Jan. 26, 2012) at 28. Norris eventually purchased the tractor-trailer from Miller for $1,000. After police notified Norris that there was a dispute regarding ownership of the tractor-trailer, he returned it to Cole. Norris asked Miller to return the money he had paid for the tractor-trailer but Miller refused.

¶ 7 The State charged Miller by second amended information with second degree theft and making a false statement in application for or assignment of a certificate of title. On the first day of trial, the trial court referred to a discussion that had taken place in chambers before trial, [179 Wn.App. 97] stating, " The statute we were talking about in chambers pretrial, with respect to what a person is obligated to do, with respect to abandoned or found property, the entire chapter is RCW 63.21.010 and that's for the benefit of both defense and prosecution." RP (Jan. 26, 2012) at 22. On the second day of trial, the trial court stated, " I want to see both of you in my chambers at 1:00 to go over instructions." RP (Jan. 27, 2012) at 60. The trial court instructions to the jury included an instruction based on RCW 63.21.010, the statute providing the procedure for legally claiming found property.[1]

Page 1147

¶ 8 The jury returned verdicts finding Miller guilty on both counts. Miller timely appeals his convictions.

ANALYSIS

Public Trial Right

¶ 9 Miller first argues that the trial court violated his and the public's right to an open and public trial by meeting with counsel in chambers without conducting a Bo ...


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