COURT CF APPEALS DIV ] STATE OF WASIilMGTO;' 2013 SEP 30 AH 9:24

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON, Respondent,

v. JORDAN J. PORTCH, Appellant. DIVISION ONE No. 68421-3-1

UNPUBLISHED OPINION FILED: September 30, 2013 

### Dwyer, J. - Jordan Portch appeals from his conviction for residential 

### burglary and tampering with physical evidence. He contends that thetrial court violated the attorney-client privilege and work productdoctrine whenit permitted a defense investigatortotestify about hisinvestigation into an alibi defense. But to the extent the investigator's testimonyinvolved information that the defense had voluntarily disclosed when itnotified the State of its planned alibi defense, Portch has waived the right to assertthe privileges. And Portch has failed to demonstrate that the remainder ofthe investigator's testimony disclosed any 

### confidential attorney-client communications ordefense theories. Portch's 

### challenge to thejoinderof charges for trial is alsowithout merit. Weaffirm.No. 68421-3-1/2

I 

### Jordan Portch and Megan Gates began dating in late 2009. From 

### February 2010 until the couple broke up in May 2010, Portch lived with Gates in the Lynnwood home she shared with her parents. 

### On the afternoon ofJanuary 14, 2011, Lynnette Gates, Megan's mother, 

### was at home watching televisionin an upstairs bedroom. At about 4:30 p.m., the 

### family's two dogs suddenly jumpedoffthe bed and randownstairs. When she heard a rustling noise, Lynnette thought the dogs had gotten into the garbage and went to investigate. 

### At the bottom of the stairs, Lynnetteencountered Portch in the hallway. 

### Portch was wearing a dark, possibly leather, coat and dark jeans. When 

### Lynnette asked what hewas doing in her house, Portch shuffled around briefly without responding and then ran toward therearofthehouse. Lynnettefollowed and saw Portch leavethrough a broken sliding glass door. Shattered glass from the doorlay on the carpet and back deck. Lynnette called 911. Ataboutthe same time, Rebecca Tindall, a neighbor, was walking her dog
near the Gates's home. She noticed a late-model blue sedan parked in an 

### unusual spot. The carhad a dent near thefront passengerside. Theengine 

### appeared to berunning, and someone wassitting in thefront passengerseat. A man wearing darkjeans and a leatherjacketsuddenly sprinted pastTindall, got into the car, and drove off.No. 68421-3-1/3 

### The State charged Portch with one count ofresidential burglary. Prior to trial, defense counsel notified the State that Portch would present 

### an alibidefense. See CrR 4.7(b)(2)(xii). Defense counsel also provided what 

### purported to be a body shop repair estimate forPortch's car. The one-page document, dated December 10, 2010, recorded the mileage on Portch's car as 

### 115,721. The defense also informed the State that Joel Martin, a defense 

### investigator, had inspected Portch's car aftercharges were filed, taken photographs, and recorded an odometer reading of 115,726. Based on the 

### distancefrom the bodyshop to the Gates's home, the defense indicated itwould
use the odometer evidence to establish that Tindall could not have seen Portch's


### car afterthe burglary on January 14, 2011. 

### Upon further investigation, the Statediscovered thatshortly before the initial trial date, Portch asked Shayne Hedahl, the owner of the body shop, to delete the estimate from the shop's computer system. Hedahlcomplied with the 

### request. Portch later returned and asked Hedahl to recreate theestimate. 

### Initially, Hedahl could not reproduce theestimate, but helaterfound away to
recoverthe data. The restored estimate, which consisted of several pages, 

### reflected an odometerreading of114,979 on December 10,2010, and noted 

### damage totherightfront sidepanel ofPortch's car, consistentwith Tindall's observations. Some evidence indicated that Portch told the body shop 

### employees that his attorney had asked him tohave theestimate removed. TheNo. 68421-3-1/4
State asserted that Portch's actions after the burglary charge were relevant to show a consciousness of guilt. The trial court ruled that any statements Portch voluntarily made to the 

### body shop employees about his attorney having requested destruction of the evidence were admissible and fell outside the attorney-client privilege. Based on 

### the potential conflict, the court alloweddefense counsel to withdraw and appointed new counsel. The State then amended the information to add charges oftampering with 

### physical evidence and tampering with a witness. Thetrial court denied Portch's motion to sever the tampering counts. 

### Portch moved to preclude the State from calling Joel Martin as a witness. 

### The State intended to question Martin about his investigation into Portch's alibi 

### defense, including thebody shop estimate and the related evidence involving the odometerreading on Portch's car. Defense counsel objected, arguing that 

### Martin's testimony would violate both the attorney-client privilege and thework productdoctrine. The defense also maintained thatMartin's testimony was not relevant because it no longer planned to introduce the odometer evidence as part
of Portch's alibi defense. 

### The trial court denied Portch's motion, concluding that Martin's proposed 

### testimony fell outsidethe scope oftheattorney-client privilege and thework 

### productdoctrine and that Portch had waived any privileges by asserting thealibiNo. 68421-3-1/5
defense. The court also ruled that Martin's testimony remained relevant even 

### though Portch was nowrelying on different evidence to support his alibi defense. At trial, Martin testified about his investigation ofthe body shop estimate 

### and the odometer readings on Portch's car. On behalf of the defense, Martin 

### testified that he prepared a photomontage and showed itto Rebecca Tindall, who identified someone otherthan Portch as the man she saw running after the burglary. 

### Ryan Danekastestified that he hadknown Portch sinceelementary school and continued to "hang out" with him about once a month. Danekasrecalled that 

### he gotoffwork on themorning ofJanuary 14, 2011, and thatPortch drove over 

### tohis apartment on amotorcycle atabout 11:00 a.m. The two then "sataround, hung out, [and] talked." At about4:00 p.m., Danekas and Portch walked to a 

### nearby convenience storeto buy softdrinks. Danekas estimated that Portch left the apartment at about 7:00 p.m. 

### Thejuryfound Portch guilty as charged ofresidential burglary and tampering with physical evidence.1

1Thetrial court dismissed the witnesstampering charge at the conclusion of the State's

case.No. 68421-3-1/6

Portch contends that the trial court violated the attorney-client privilege and the work product doctrine when itpermitted the defense investigator to testify about his investigation into the odometer readings on Portch's car. But because the defense had previously disclosed the essence of Martin's testimony when it provided the State with details about the alibi defense, Portch has failed to demonstrate any error. The attorney-client privilege, codified in RCW 5.60.060, "protects confidential attorney-client communications from discovery so clients will not hesitate to fully inform their attorneys of all relevant facts." Barry v. USAA, 98 

### Wn. App. 199, 204, 989 P.2d 1172 (1999). Butthe privilege is generally limited to communications between attorney and client; itdoes not generally extend to "communications between an attorney and a third party on a client's behalf, nor does itprotect materials compiled by an attorney from outside sources on a client's behalf." 5A Karl B. Tegland, Washington Practice: Evidence Lawand Practice § 501.10, at 145-46 (5th ed.2007). Portch contends that Martinwas "privy to confidential attorney-client communications" and that his entire testimony was protected because itwas "a 

### direct result of this privilege." But he fails to identify any specific portion of Martin's testimony that violated the privilege.No. 68421-3-1/7
Martin testified that he was assigned to investigate Portch's alibi defense by defense counsel and that he served a subpoena on Scott Hardy, the body shop employee who had prepared the original estimate for Portch on December 10, 2011. But Martin did not know the subject of Hardy's testimony. As part of his investigation, Martin also took pictures of Portch's car and the current odometer reading and compared the current reading with the reading on the estimate. He then determined the driving distance between the body shop and the Gates's home. Martin also interviewed Hedahl, the body shop owner, who 

### gave him a copy of the recreated complete estimate with the lowerodometer reading. 

### Martin's testimony focused primarily on his own actions in investigating the estimate and mileage issues. The testimony did not reveal any direct or implicit communications between Portch and defense counsel. At one point, when 

### Martin volunteered something that Portch had toldhim, the trial court sustained 

### the defense objection. Thetrial court also sustained objections to questions 

### aboutwhy Martin was nolonger an investigatorfor Portch and how Martin would have testified insupport of the original alibi claim. Under the circumstances, 

### Martin's testimony did notreveal anyconfidential communications. Thetrial courtproperly concluded that the testimony did notviolate the attorney-client privilege.No. 68421-3-1/8

Portch also contends that Martin's testimony violated the work product doctrine. "The work product doctrine protects from discovery an attorney's work product, so that attorneys can 'work with a certain degree of privacy and plan 

### strategy without undue interference.'" State v. Pawlvk. 115 Wn.2d 457, 475, 800 P.2d 338 (1990) (quoting Coburn v. Seda. 101 Wn.2d 270, 274, 677 P.2d 173 (1984)). The doctrine applies to "research,
. . . records, correspondence, reports
or memoranda to the extent that they contain the opinions, theories or 

### conclusions of investigating or prosecuting agencies." CrR 4.7(f)(1); Pawlvk, 115 Wn.2d at 477. But the voluntary disclosure of workproductto a third party 

### generally results in a waiver of the privilege. See Limstrom v. Ladenburg, 110 Wn. App. 133, 145, 39 P.3d 351 (2002). 

### Portch's arguments on work product rest solely on Martin's identity as a 

### defense investigator. In argument before the trial court, Portch did not dispute the fact that Martin's proposed testimony involved information that had already been disclosed to the State in conjunctionwith the defense's claim ofalibi, 

### including the nature of the alibi defense, the original body shop estimate, the 

### potential defense witnesses thatMartin had subpoenaed, and the photos of Portch's car and odometer. Portch has not addressed the substance of Martin's 

### testimony oridentified any testimonydisclosing defense "opinions, theories orNo. 68421-3-1/9
conclusions" that had not already been voluntarily disclosed. The trial court properly determined that Portch had waived any work product privilege.
IV Citing State v. Garza. 99 Wn. App. 291, 994 P.2d 868 (2000), Portch contends that the trial court violated his Sixth Amendment right to counsel when itpermitted the State to call the defense investigator as a witness. But Garza involved a potential "'intentional intrusion into the attorney-client relationship'" whenjail officers searched inmates' legal materials. Garza, 99 Wn. App. at 299 (quoting Shillinqerv. Haworth. 70 F.3d 1132, 1142 (10th Cir. 1995)). Because Portch has failed to demonstrate any violation ofthe attorney-client privilege or 

### work product doctrine, Garza has no application to the facts of this case. 

### Moreover, our Supreme Court has rejected the contention that the attorney-client 

### privilege is part of the Sixth Amendment rightto counsel. Pawlvk. 115 Wn.2d at
468-69.
V Portch contends that the trial court erred in permitting joinder ofthe 

### burglary and tampering offenses and denying his motion forseverance. Because Portch failed to renew the motion to sever before the close oftrial, he has waived the issue of severance. State v. Bryant, 89 Wn. App. 857, 864, 950 P.2d 1004 

### (1998). Consequently, only the issue of joinder is preserved forreview. Bryant. 89 Wn. App. at 865. The question ofwhether multiple offenses are properlyNo. 68421-3-1/10 joined "is a question of law subjectto full appellate review." Bryant. 89 Wn. App.
at 864.Portch concedes thatjoinder ofthe burglary and tampering charges was proper under CrR 4.3(a)(1) and (2) because the offenses involved "the same or similar character" or were "a series ofacts connected together." He contends, however, thatjoinderwas unfairly prejudicial because the evidence was not cross-admissible and likely caused thejury to cumulate evidence to find guilt. Thejoinder of multiple offenses may prejudice the defendant because: "(1) [the defendant] may become embarrassed or confounded in presenting separate defenses; (2) thejury may use the evidence of one ofthe crimes charged to infer a criminal disposition on the part of the defendant from which is found his guilt of the other crime or crimes charged; or (3) thejury may cumulate the evidence ofthe various crimes charged and find guilt when, ifconsidered separately, itwould not so find."
State v. Bvthrow. 114 Wn.2d 713, 717, 790 P.2d 154 (1990) (quoting State v. Smith. 74 Wn.2d 744, 755, 446 P.2d 571 (1968) vacated in part. 408 U.S. 934, 92 S. Ct. 2852, 33 L. Ed. 2d 747 (1972), overruled on other grounds in State v. Gosbv. 85 Wn.2d 758, 539 P.2d 680 (1975)). Factors that offset the potential 

### prejudice ofjoinder include: "(1)the strength ofthe State's evidence on each count; (2) the clarity ofdefenses to each count; (3) the court's instruction to the jury as to the limitedpurpose for which itwas to considerthe evidence ofeach crime; and (4) the admissibility ofthe evidence ofthe other crimes even ifthey

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### had been tried separately or never charged or joined." State v. Eastabrook. 58 Wn. App. 805, 811-12, 795 P.2d 151 (1990). Here, the charges were based primarily on eyewitness testimony. The relatively strong evidence supporting each charge reduced the possibility that the jury might base its "finding of guilt on any one count on the strength ofthe evidence of another." Bvthrow, 114 Wn.2d at 721-22. Portch's defenses were also clear and distinct. He claimed that he was not the intruder at the Gates's home and that the State had failed to prove that any tampering occurred. In addition, the instructions directed thejury to consider each count separately and provided that the "verdict on one count should not control [the] verdict on any other count." Instruction 2; see also 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 3.01 (3d ed. 2008); Bvthrow. 114 Wn.2d at 723. We must presume that thejury followed those instructions. State v. Howard, 52 Wn. App. 12, 24, 756 P.2d 1324 (1988). Finally, contrary to Portch's assertions, the trial court correctly determined that the evidence was cross admissible. See State v. Sanders, 66 Wn. App. 878, 885-86, 833 P.2d 452 (1992) (in prosecution for rape and witness tampering, fact ofrape charge admissible in separate witness tampering trial to show why the tampering occurred; evidence ofwitness tampering admissible in separate rape trial to show consciousness ofguilt).

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Under the circumstances, the concern for judicial economy clearly outweighed the potential prejudice. See Bvthrow, 114 Wn.2d at 723. The trial 

### court properly joined the charges fortrial.2

Affirmed.

We concur:

2The State contends thatcontrary to ourdecision in Bryant, Portch alsowaived any right to challenge the prejudiceresulting fromjoinderwhen he failed to renew his severance motion. Because the offenses were properly joined, we do not address this contention.
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