### FILED August 

### 22, 2013
In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DNISIONTHREE STATE OF WASHINGTON, ) ) No. 30232-6-III Respondent, ) ) 

### v. ) ) ROBERT LEE WIDRIG, ) UNPUBLISHED OPINION ) Appellant. ) SIDDOWAY,J.

- Robert Widrig's ex-wife's homewas burglarizedwhile she was out oftownwith her and Mr. Widrig's sons, and ajuryfound thathe was responsible. He
was convicted ofresidentialburglary, second degreetheft, and a dozen counts ofsecond degree animal cruelty for releasing his ex-wife's and sons' show rabbits from theirpens. He appeals, challengingthe sufficiency ofthe evidence. He also contends thatthetrial court erred in refusing to declare a mistrial after it discoveredthat a handbook of Washington courtrules was inadvertently left in thejuryroom during thejurors' deliberations. The evidence was sufficientto supportthejury'sverdict and the record supports the trial court's conclusionthatMr. Widrig has failed todemonstrate any prejudice from thepresence ofthe rule book in thejuryroom. We affirm.No. 30232-6-III State 

### v. Widrig
FACTS AND PROCEDURAL BACKGROUND Katrina Riexinger and Robert Widrig were married for almost 30 years. Late in the marriage-in 2005-Mr. Widrig moved to Las Vegas to work constructionbecause the money was good. Initially, he returned home to Cle Elum for three- to four-day visits at a time. Trips home became increasingly infrequent and he eventually quit returning at all, having become romantically involved with TamaraRowland, whom he met in Las Vegas.By the time Ms. Riexinger filed for divorce in early 2007, three ofthe couple's
sons were adults; Ms. Riexinger was appointed the primary residential parent oftheir youngest son. In the decree ofdissolution, the trial court awarded Ms. Riexinger the family home while Mr. Widrig was awardedhis tools and a number ofother items of personal property. The decree ofdissolution was entered on September 15, 2008 and ordered Mr. Widrigtopick up any personal property awarded him that remained atthe family home by October 15. Bythe time ofentry ofthe decree, Mr. Widrig had movedback tothe Pacific Northwest and was living on property owned by his parents in North Bend. Following entry ofthe decree, Mr. Widrig gave Ms. Riexinger a list ofitemshe wanted from the home. He arranged a date to pick them up in late September, butthen canceled. Afterhe canceled the plannedpick up ofproperty and despite the deadline imposed by the decree, Ms. Riexinger decided to go forward with a trip to Disneyland 2No. 30232-6-111 State v. Widrig
that she had planned with her sons, leaving on October 5 and expecting to return on October 13. Herparents agreed to watch her house and feed the family's cats and a dozen Netherlandpedigree show rabbits that were raised as a hobby by Ms. Riexinger and the boys. On October 10, Ms. Riexinger re,ceived a frantic call from her mother, Marilyn Riexinger, who had arrived with her husband at their daughter's house for the first of their customary twice-a-day house-sitting visits and discovered some ofthe family's outside cats indoors, and the rabbits all released from their pens and gone. Ms. Riexinger asked her mother to call the police. Cutting the vacation short, she began the drive back to Cle Elum. Cle Elum police officer Jennifer Rogers responded to Marilyn Riexinger's report ofa burglary and drove to the home, where Marilyn1 and other family members were trying to find and capture the rabbits. Marilyn had not been able to determine how the burglar entered her daughter's home, but showed Officer Rogers around and said that at a minimum, her grandson's computer was missing. Marilyn told Officer Rogers that when she and her husband left the prior evening the rabbits were in their closedpens located in
an outside shed; a light was on and music was playing in the shed, as usual. Marilyn and herhusband had closed the shed door and latched it before they left. Upon arriving that

1We refer to Marilyn Riexinger by her first name to avoid confusion. We intend no disrespect. 3No. 30232-6-111 State v. Widrig morning, they found the shed door open, the lights and music off, each ofthe individual pens open and the rabbits missing. Itwould laterbe determined that an electrical cord thatran from the shed to a somewhat obscure outlet had been unplugged. After completing her investigation at the house, Officer Rogers returned to the police station and was writing up herreport when she was notified by a central dispatch agency for county law enforcement that Robert Widrig hadjustcontacted the agency to request "civil stand by" at his ex-wife's home, so that he could go there and pick up his belongings. Report ofProceedings (RP) at 229. Officer Rogers called

### Mr. Widrig and explained that she hadjustreturned from Ms. Riexinger's home after investigating a burglary. She considered Mr. Widrig a suspect and asked him his whereabouts for the prior 24 hours. Mr. Widrig told herthat he had been in North Bendthe entire time and had not been to his ex-wife's home in over a year. When the officertold himthe rabbits had been released, suggesting apersonal, malicious motive on the part ofwhoever committed the crime, 

### Mr. Widrig stated that he did not know Ms. Riexinger and the boys still hadrabbits and insisted that he had "noproblem" with his ex-wife. RP at 233. During the course ofthe conversation, 

### Mr. Widrig told the officer that his mother could verify that he had been in North Bend. OfficerRogers was willing to speak with Ms. Widrig, so Mr. Widrig handed the phoneto his mother. According to the officer's notes, he stated, while handing his motherthe phone, '" [Y]ou can verify 1was here last night and today, right?'" RP at 235. Ms. Widrigthen told the officerthather son had 

### 4No. 30232-6-II1 State 

### v. Widrig
been at her home mowing the lawn from 11 a.m. to 3 or 3:30 p.m. the prior afternoon. She also told the officer that her sonhad gone to bed about 11 p.m. the nightbefore but then corrected herselfand said that he had been feeding his chickens atthattime and had gone to bed later. Ms. Widrig did not attempt to account for her son's whereabouts at any other time during her conversation with the officer. AfterMs. Riexinger returned to Cle Elum, Officer Rogers met with her and walked throughthe home again. Ms. Riexinger had noticed on her return that the family
room window appeared to have been propped open and a ladder along the fence had been moved. Ms. Riexinger had by then determined that the only items missing otherthan the earlier-reported laptop and the rabbits were a new Coleman lantern and a ziplock bagthat contained her weddingring and otherjewelry she had received from 

### Mr. Widrig. She kept the bag of jewelry in a dresser drawer in her bedroom. The property missing was valued at $14,000. Among items pointed out to Officer Rogers that had been left untouched in the burglary were a flat screen TV, DVDs, video games and systems, and a box ofMs. Riexinger's otherjewelry. By the time Ms. Riexingerreturned to Cle Elum, 9 ofthe 12 rabbits had been captured; the other 3 were never found. One ofthe rabbits had a broken back and all of them were very stressed. Two ofthe rabbits that had been found neverrecovered, and died.

5No.30232-6-II1 State 

### v. Widrig
The next development in the case occurred a little over a month later, when OfficerRogers received a "pawnhit." RP at 246. She had asked the King County Sheriffs Office to notify her in the event anyjewelrywas reported by pawn businesses in the county to have beenpawned by Mr. Widrig or Ms. Rowland, who had moved to North Bend and was living with Mr. Widrig. Tworings pawned at an Auburn pawn shop by Ms. Rowland provedto beMs. Riexinger's wedding ring and anniversary ring. Ms. Rowland had provided the pawn shop with a false address and Officer Rogers
was unable to locate herthere, but she later contacted Ms. Rowland at Mr. Widrig's mother's North Bendhome. Ms. Rowland admitted that she had traveled to the Auburn pawn shop with Mr. Widrig and pawnedthe rings at his request, after Mr. Widrig claimed to have forgotten his identification. Mr. Widrig was thereafter chargedwithresidential burglary, second degree theft, and the animal cruelty counts. The charges against Mr. Widrig proceeded to trial in May 2011. Mr. Widrig never challenged thatthe burglary, theft, and animal cruelty had occurred, but denied that he had anything to do with them. He did not testify. His mother's testimony supportedthe likelihood thathe was atherhome during most ifnot all ofthe time frame in whichthe crimes occurred. His mother also claimed that her son gaveherrings and otherproperty for safekeeping in 2007 when he first returned from Las Vegas, and that she understood it tobeproperty he had picked up from Ms. Riexinger upon his initial return. Ms. Widrig



### 6No. 30232-6-111 State v. Widrig testified, as did Ms. Rowland, that Ms. Widrig gave her son a box ofitems to pawn, in which the rings were included. Evidently thejurydid not believe the defense witnesses. It found Mr. Widrig guilty on all counts. The day after thejuryreturned its verdict, the court wrote to the lawyers to report the following development: After court adjourned lastnight I left the bench, went to chambers and removed my robe, thenproceeded into thejuryroom to help the bailiff clean up the room. Uponentering thejuryroom I immediately noticed a book on the table, Washington CourtRules, Volume I-State. I askedthe bailiffifhe'dplaced that book in thejuryroom and he said no, the book was there when he went in to clean up. At this point I am unaware ofhow orwhen that book was introduced into thejury room. I placed my initials andthe date (5/11/II) in ink on the book, and have it available for inspection at your convenience. I have reviewed State v. Fry, 153 Wn. App. 235 (2009) and am willing to call thejurorsbackto court, place them onthe witness stand individually, place them under oath, and allow you to ask each ofthem whatever questions you may have about this issue so that you may develop a record ofwhat impact this book may have had upon their deliberations. Clerk's Papers (CP) at 166. The court conducted a hearing at which eachjurorwas questioned about any use made, orreliance on information found in the rules book. A number of jurorstestified that they sawthe book in thejuryroom but some had not seen it. Several "thumbed through" the book. RP at 385,392,414. Only a couple had attempted to usethebook, but unsuccessfully; Juror4 testified that he tried to look for things for criminal law, but
7No.30232-6-II1 State 

### v. Widrig
"itwasjust so big." RP at 403. Juror 12 testified that she attempted to look up a definition, but was unsuccessful. Everyjurorwas asked whether the book played a role in deliberations. Each responded that it had not. After questioning ofthejurors was completed 

### Mr. Widrig moved for a mistrial, arguing that thejurors had used extraneous material in reaching their verdict. The court denied the motion finding that "the court is not convincedthatjurors used the book during deliberations or that the mere presence ofthe book could influence the verdict and prejudice the defendant." CP at 182. Mr. Widrig appeals: ANALYSIS 

### I Mr. Widrig first contends that while the State presented sufficient evidence that crimes were committed, it failed toprove that he was the individual that committed them. He characterizes the State's evidence as "circumstantial at best" and emphasizes that he had "an alibi backed up with documentary evidence from his employer and hadplausible explanations for how he came to possess the weddingring and anniversary band, corroborated by his mother." Br. ofAppellant at 11. Inreviewing a claim ofinsufficient evidence, we view evidenceinthe light most favorable to the State in orderto determine whether any rational trier offact could have found the essential elements ofthe crime beyond a reasonable doubt. State v. Brockob, 159 Wn.2d 311,336, 150 P.3d 59 (2006). We defer to the trier offact when it comes to 8No. 30232-6-111 State v. Widrig conflicting testimony, credibility ofwitnesses, and the persuasiveness ofthe evidence. State v. Camarillo, 115 Wn.2d 60,71,794 P.2d 850 (1990). A conviction will be reversed only when no rational trier offact could have found that the State proved all of the elements ofthe crime beyond a reasonable doubt. State v. Smith, 155 Wn.2d 496, 501, 120 P.3d 559 (2005). Mr. Widrig's explanation ofhow he came to possess the wedding band and anniversary ring might have been backed up by his mother but itwas clearly contested by Ms. Riexinger, who testified that she had neverplaced her wedding or anniversary rings in boxes ofclothing andpossessions that she packed and provided to Mr. Widrig upon his return from Las Vegas. She testified unequivocally that she kept the rings in her bedroom dresser draweruntil they disappeared in early October 2008, during her trip to Disneyland. We deferto the trier offact, which believed Ms. Riexinger. There was some direct evidence and a significant amount ofcircumstantial evidence ofMr. Widrig's responsibility for the crimes. Circumstantial evidence and direct evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634,638,618 P.2d 99 (1980). There was direct evidence that Mr. Widrig possessed the rings that were taken from the house in early October and were thereafterpawned by his girl friend. There was circumstantial evidence that Mr. Widrig had been having financial problems and of malice, as an additional motive.

9No. 30232-6-III State v. Widrig


### Mr. Widrig had been laid offfor four to five months at the time ofthe crime and he and Ms. Rowland were getting by financially by having yard sales, making and selling crafts, andpawning tools ortrinkets he would get from his parents. Ms. Rowland characterized him as being "sad" and "bummed out" and testified that both ofthem were feeling desperate. RP at 156. The crimes were atypical property crimes. Officer Rogers testified that electronics, readily accessiblejewelry, and other items that would ordinarily be the first to be taken were left behind. The acts ofunpluggingpowerto the shed in which the rabbits were penned and releasing and removingthem from theirpens defy explanation
as the acts ofa stranger. Officer Rogers suggested it was a suspicious coincidence that 

### Mr. Widrig called to request "civil stand by" to go to his ex-wife's home to pickup his belongings so shortly after the suspected time ofthe burglary. The acts suggested the involvement ofsomeone with personal malice and familiarity with the rabbits' housing and vulnerability. There was testimony at trial that
even with the pen doors open, these docile show rabbits were unlikely tojump out of theirpens and were likely lifted out oftheirpens and placed outside. As to possible malice, 

### Mr. Widrig was $50,000 in arrears for child support and according to Ms. Rowland "feltbad" because he "hadn't seen his kids [and] didn't have money to give them more and he couldn't talk to them unless Katrina said." RP at 157. Meanwhile, his ex-wife had ongoing contact with their sons and was taking them to Disneyland. 10No. 30232-6-111

.State 

### v. Widrig
As to 

### Mr. Widrig's alibi, even ifthejurybelieved his mother, she could not vouch for his whereabouts between 12 a.m. and 6:30 a.m. on October 10. Based on Marilyn Riexinger's and herhusband's routine for feeding and watering their daughter's animals, the crime occurred somewhere between 6 p.m. or so on October 9 and midmorning on October 10. Thejuryheardthat 

### Mr. Widrig lived within an hour ofMs. Riexinger's home. There was an ample window within which he couldhave committed the crimes. The evidence was sufficient for a reasonablejuryto find 

### Mr. Widrig gUilty. 

### II Mr. Widrig's second assignment oferror is to the trial court's denial ofhis motion for a mistrial based on the review by somejurors ofthe book ofcourtrules. The court rules book is a compendium ofdozens ofsets ofrules, principles, and standards, the vast majority ofwhich would have no conceivable application to 

### Mr. Widrig'strial. The right to a trial byjury includes "the right to have eachjurorreach [a] verdict uninfluenced by factors outside the evidence." State v. Boogaard, 90 Wn.2d 733, 736, 585 P.2d 789 (1978). A criminal defendant's constitutional rightto an impartialjury is denied when thejury considers extraneous material in its deliberations. Turner v. Louisiana, 379 U.S. 466, 472, 85 S. Ct. 546, 13 

### L. Ed. 2d 424 (1965). A trial courtmay grant a defendant's motion for new trial ifit "affirmatively appears that a substantial right ofthe defendant was materially affected" by thejury's receipt of"any evidence, paper,

11No. 30232-6-111 

### State v. 

### Widrig
document orbook not allowedby the court." CrR 7.5(a)(1); 

### State v. 

### Pete, 152 Wn.2d 546, 552, 98 P.3d 803 (2004). A new trial mustbe granted unless itcanbe concluded beyond a reasonable doubt that extrinsic evidence did not contribute to the verdict. 

### State v. 

### Briggs, 55 Wn. App. 44, 55-56, 776 P.2d 1347 (1989) (quoting 

### UnitedStates v. 

### Bagley, 641 F.2d 1235, 1242 (9th Cir. 1981) (Fletcher, J., concurring inpart and dissenting inpart)). The defendant must demonstrate reasonable grounds tobelieve that he or she has beenprejudiced or, at a minimum, a probability ofprejudice. 

### State v. 

### Lemieux, 75 Wn.2d 89, 91, 448 P.2d 943 

### (1968); State 

### v. Hicks, 41 Wn. App. 303, 312, 704 P.2d 1206 (1985) (showing of "probability ofprejudice" will suffice). The inquiry into whether a defendant has been prejudiced is an objective one andthe State need not delve into the actual effect ofthe extraneous material. 

### State 

### v. Boling, 131 Wn. App. 329, 332, 127 P.3d 740 (2006). Where it is not clearwhat extraneous material might have been used, orhow, it is reasonable for the trial courtto conduct a hearing atwhichjurors can be questioned, as
was done here. 

### See State 

### v. Fry, 153 Wn. App. 235, 220 P.3d 1245 (2009) (hearing conducted to questionjurorabout heruse ofa dictionary). In this case, the courtrules book was clearly extraneous; itwas not admitted into evidence or provided to thejurybythe court. But 

### Mr. Widrig has not shown how a few jurors' review ofthe book could possibly have adversely influenced the resolution ofhis
case. In light ofthe myriad contents ofthe many hundred page long book, the prospect 12No. 30232-6-111 State 

### v. Widrig
ofthejurors locating something they would perceiveas relevant to their deliberations
was remote. Theirtestimony as to what they reviewed and the inconsequential information from the book that might have been shared confirmed that they found nothing relevant. There is no reasonable doubt that access to the book did not contribute to the verdict. Affirmed. A majority ofthe panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuantto RCW 2.06.040.

WE CONCUR:

# ~)~ Brown, 1.



### 13