IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
STATE OF WASHINGTON, ) Respondent, )

v. LEONARD PEGS, JR., ) Appellant. )
STATE OF WASHINGTON, ) Respondent, )

v. JAMES E. BALLOU, ) Appellant. ) No. 68725-5-1 consolidated with No. 68747-6-1

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UNPUBLISHED OPINION FILED: December 30, 2013 

### Verellen, J. —Leonard Pegs, Jr. and James Ballou appeal their convictions 

### for second degree burglary. Pegs contends the State failed to preserve video surveillance footage helpful to his case. He further contends that the best evidence 

### rule precludes the admission ofsecondary testimony related to the surveillance footage, and thatthe court erred in allowing laywitnesses to give opinion testimony 

### identifying the defendants in the surveillance footage. Pegs and Balloueach contend the court abused its discretion in allowing evidence of prior bad acts underNo. 68725-5-1/2
ER 404(b), and further argue the court erred in refusing to instruct thejury on the definition of "property." There is no evidence the police acted in bad faith in failing to secure the surveillance footage. The court did not abuse its discretion in admitting testimony about the contents ofthe surveillance footage. Two witnesses who viewed the 

### surveillance footage had significant interaction withthe defendants before viewing the surveillance footage, rendering their testimony helpful to thejury. Inany event, 

### any error in admitting such opinion testimony was harmless. The trial court did not abuse its discretion under ER 404(b) in allowing the store manager to testify he had 

### met Ballou inthe past. Finally, the instructions given allowed the defendants to 

### argue their theory, the court did not err in refusing to instruct the jury on the definition of property, and any alleged error was harmless. 

### Pegs also challenges his sentence, contending the court erred when it 

## recognized hewas eligibleforthe parenting sentencing alternative1 but nevertheless declined to give him an alternative sentence. The trial court noted Pegs' significant criminal history, consistent with the legislature's directive that courts consider criminal history indetermining whetherthe parenting sentencing alternative is appropriate. 

### Pegs does not establish that the trial court abused or failed to exercise its discretion in declining to give the alternative sentence.
We affirm.

1 RCW 9.94A.644.No. 68725-5-1/3

FACTS 

### On November 1, 2009, Leonard Pegs, Jr. and James Ballou arrived at Toys 'R 

### Us in Lynnwood. The two men wentto separate areas ofthe store. Department 

### supervisor Christopher Blaine observed Ballou in the "R Zone," a separate section of the store containing electronics items. Ballouwas pacing around nearthe R Zone on 

### his phone and asked an employee to show him some keyboards in another section of 

### the store. When Blaine offered Ballou assistance, Ballou told Blaine "nevermind."2 Blaine then notified store manager Darin Jorgensen that they had a "Code Jeffrey," the store code for a suspicious situation. 

### Blaine and Jorgensen then observed Ballou pushing a shopping cart with a cardboard box in ittoward the store exit without stopping at any cash register. The 

### box had red and white tape with a white label normallyused forelectronic merchandise in the R Zone. Both Blaine and Jorgensen observed Pegs exit a few 

### steps behind Ballou. Jorgensen called after them to stop, but they sped up and continued out the door into the parking lot, where a black Jaguarwas parked. 

### Jorgensenfollowed them outside and called 911. When Jorgensen loudly provided police with a description ofthe car and licensenumber, Pegs and Ballou looked at Jorgensen and then together, theylifted the boxfrom the cart and dropped it into the trunk. When the box landed inthe trunk, Jorgensen heard a thud and saw the car 

### suspension shift. Pegs and Ballou drove awayin the Jaguar. Jorgensen ran after them while describing their route to the 911 dispatcher.


### Report ofProceedings (RP) (Mar. 28, 2012) at 295.No. 68725-5-1/4
Officer Justin Gann received the dispatch and stopped the Jaguar about seven 

### minutes later. Pegs and Ballou were detained for investigation. Jorgensen arrived and identified Pegs and Ballouas the two men he had seen in the store. While OfficerGann was detaining Pegs and Ballou, Blaine watched the Toys 

### 'R Us security video surveillancefootage. Attrial, Blaine testified about what he saw on the video footage. He saw Pegs go to the back storage room door, near the R Zone. The door is marked "forauthorized personnel only." He saw Pegs open the 

### door aftermoving his hand around near the door. The doorautomatically locks and normally can be opened only byemployees with a key. Blaine then switched to the camera that showed the interior of the R Zone 

### storeroom. He testified the footage showed Pegs unload one of the boxes in the 

### storeroom and put severalNintendo DS game systems into the box. Thebox in the video had the red and whitetape with a white label normally used for electronic merchandise in the R Zone. Whilefilling up the box, Pegs periodically looked out the small window inthe storeroom door and put his phone to his ear. Pegs then put the 

### box on thefloorjustoutside thestoreroom door. Afew minutes later, Ballou cameby the storeroom doorwith a shopping cart. Ballou pushed the cart containing the electronics box toward the exit. The surveillance video did not reveal and Blaine did 

### notsee firsthand anyone else leaving the store with such a box in a cart. 

### Jorgensen returned to the store aftercalling 911 andwatched the surveillance video several times. Attrial, Jorgensen testified about what he had seen on theNo. 68725-5-1/5 

### surveillancefootage, providing analmost3 identical accountofwhat Blaine had seen on the footage. Jorgensen testified that the videotape included the faces of the individuals. He recognized himself in portions ofthe tape nearthe front ofthe store 

### when Pegs and Ballouwere leaving the store. Pegs and Ballou "were the only two 

### black customers in the store at thattime."4 Theywerewearing the same clothesin the tape as they were wearing inthe store and at the show-up. 

### Finally, Officer Gann also watched parts of the video. Gann testified that he 

### observed Pegs' face on the video footage to confirm Jorgensen's identification of Pegs. 

### OfficerGann asked Jorgensen for a copy of the video. Jorgensen tried to 

### make a copy, butthe systemmalfunctioned. Officer Ganninstructed Jorgensen that 

### thepolice needed thevideo as soon as possible. OfficerGann contacted Jorgensen the nextday tofollow up, but Jorgensen replied that he was still having difficulty 

### making a copy. Officer Gann did nottake theentire surveillance device because that would have leftToys 'R Uswithout surveillance for the whole store, and Officer Gann felt that "was not reasonable."5 Officer Gann never received a copy of the video. 

### Jorgensen testified that thedrive on thevideo recorderwould not open, so hecould not make a copy. Toys 'R Us then replaced the video surveillance equipment, destroying the old footage.



### 3Jorgensen testified that the surveillance showed Pegs loading the box on the cart, a detail not included in Blaine's testimony. 

### 4RP(Mar. 27, 2012) at 115. 

### 5RP(Mar. 28, 2012) at 229.No. 68725-5-1/6
Police obtained a warrant to search the Jaguar the day after the incident. 

### They found a box in the trunk matching the description ofthe electronics box Pegs and Ballou removed from the store inthe shopping cart, but the box was empty. Police did not endeavorto locate the purported contents. Jorgensen and Blaine 

### testified that several Nintendo DS game systems were missing from inventory, for a total loss to the store of$5,779.62. 

### The State charged Pegs and Ballouas codefendants with burglary in the 

### second degree and organized retail theftin the first degree. The defendants moved to dismiss under CrR 8.3(b) for the State's failure to preserve the security video. 

### They also moved in limine to prevent testimony about the identity of the persons depicted in the surveillance footage. Finally, they moved to exclude witness 

### testimonyidentifying the individuals in the footage based on the best evidence rule. The court denied allthe motions. The case proceeded to trial, but ended in mistrial due to juror misconduct. The State then filed an amended information charging both defendants only 

### with burglary in the second degree. The State alleged the two entered into the Toys 'R Us with intent to committheft therein. Before the second trial, Pegs and Ballou 

### renewed theirpretrial motion to dismiss and motions in limine. The court denied the motions, finding the State was not responsible for the failure to preserve the video, and that its absence went to weight rather than admissibility ofwhat the footage showed. 

### Pegs and Ballou also moved to exclude under ER 404(b) Jorgensen's 

### testimonythat he knewBallou from before. The court denied the motion because theNo. 68725-5-1/7 

### testimony related to Jorgensen's credibility when identifying Ballou. The court ruled that Jorgensen could testify that he had met Ballou in the past and that he recognized him. Atthe close of trial, the defendants proposed the standard patternjury 

### instruction defining "property" as "anything ofvalue."6 The courtrefused togive the instruction, stating the term "property" is within the common understanding of the jury. 

### The jury found Ballou and Pegs guilty of burglaryin the second degree, and the court imposed a standard range sentence of 51 months for both defendants. DISCUSSION Due Process

- Destruction ofthe Surveillance Footage by Toys 'R Us 

### Pegs contends the State's failure to obtain the surveillance footagefrom Toys 'R Us deprived him of a meaningful opportunity to present a complete defense. To 

### comportwith due process, the prosecution must disclose and preserve material 

### exculpatory evidence.7 The State'sfailure topreserve material exculpatory evidence 

### requires dismissal ofcriminal charges.8 Evidence is exculpatory ifitpossesses"an exculpatory value that was apparent before itwas destroyed" and ifit is "ofsuch a nature that the defendant would be unable to obtain comparable evidence by other 

### reasonably available means."9

6Clerk's Papers at 73. 7 State v. Wittenbarqer, 124Wn.2d 467, 474-75, 880 P.2d 517 (1994). 

### 8State v. Groth, 163 Wn. App. 548, 557, 261 P.3d 183(2011). review denied, 173 Wn.2d 1026, 272 P.3d 852 (2012). 9Wittenbarqer. 124 Wn.2d at 475.No. 68725-5-1/8
Ifthe evidence does not constitute material exculpatory evidence and is only "potentially useful" to the defense, failure to preserve the evidence does not constitute a due process violation unless the defendant demonstrates bad faith on 

### the part ofthe State.10 Ashowing of badfaith turns onwhetherthepolice knew of the exculpatory value ofthe evidencewhen itwas lost ordestroyed.11 Adefendant must show the destruction was improperly motivated.12 Here, there is no indication that the surveillance footage was exculpatory. The trial court noted that every indication is that the tape was inculpatory. Officer Gann, Blaine and Jorgensen watched the footage which revealed two men wearing identical clothing to Pegs and Ballou leaving the store with a box filled with electronic game components from Toys 'R Us without paying for them. The court did not err in determining the video surveillance was not exculpatory. While the State concedes the footage might have been potentially useful evidence, Pegs has not met his burden to show bad faith. As the State highlights, Toys 'R Us did not notify the police the surveillance equipment was being replaced, and therefore the police did not know the recording would be destroyed. Officer Gann requested a copy ofthe footage on the day ofthe crime, followed up a day later, and was ultimately frustrated by the unilateral Toys 'R Us decision to replace the surveillance equipment. As the trial court recognized, the police could have obtained the equipment via court order, but the failure to do so did not constitute bad 

### 10 Groth, 163Wn. App. at 557; State v. Burden, 104Wn. App. 507, 512, 17 P.3d 1211 (2001). 

### 11 Groth, 163Wn. App. at 558. 12 Id. at 559.

8No. 68725-5-1/9
faith. We conclude the trial court correctly determined there was no due process violation. Admission ofTestimony on Contents ofSurveillance Footage 

### We review challenges to a court's decisions on the admissibility ofevidence 

### for abuse ofdiscretion.13 Atrial courtabuses itsdiscretion ifitsruling is manifestly 

### unreasonable orexercised on untenable grounds orfor untenable reasons.14

a. Secondary Evidence and the Best Evidence Rule 

### Pegs argues that the best evidence rule precludes the admission of any 

### secondary testimony describing the contents of the surveillance footage. Pegs 

### acknowledges that the best evidence rule provides that "[t]he original is notrequired, and other evidence ofthe contents of a writing, recording, or photograph is 

### admissible if [a]ll originals are lost or have been destroyed, unless the proponent lost 

### ordestroyed them in bad faith."15 As described above, the State did not lose or destroy the footage inbad faith. 

### Pegs argues that the officerdid notfollow departmentguidelines, butOfficer Gann explained that taking the device would have leftthe store without any surveillance 

### system. Further, the State immediately requested a copy of the tape and promptly followed up on that request. Toys 'R Us, not the State, took the actions that resulted indestruction ofthe tape. Therefore, the trial court did not abuse its discretion in



### 13 State v.Williams, 137 Wn. App. 736, 743, 154 P.3d 322 (2007). 

### 14 Id, 15 ER 1004(a).

9No. 68725-5-1/10 

### determining the best evidence rule did not preventthe State from introducing secondary testimony describing the content ofthe videotape. b. Opinion Testimony 

### Pegs also argues the court erred byallowing Jorgensen, Blaine and Officer Gann to give opinion testimony identifying Pegs and Ballou as the individuals in the destroyed surveillance footage. Awitness must testifybased on personal 

### knowledge, and a lay witness may giveopinion testimony ifit is "rationally based on the perception of the witness" and "helpful to a clear understanding of the witness' 

## testimony orthe determination ofafactin issue."16 

## The parties allfocus onthe standard used in Statev. Hardy17 and Statev. George.18 In Hardv, the court noted that "[a] lay witness may give an opinion 

### concerning the identity of a person in a surveillance photograph ifthere is some basis for concluding that thewitness ismore likelytocorrectly identifythedefendantfrom 

## the photographthan is thejury."19 Stated slightlydifferently, opinion testimony onthe identity ofa personin a photograph orvideotape may be appropriate when the witness has had sufficient contactwith a defendant.20 In Hardv, we affirmed the trial court's decision allowing officers to testify about the identities of twodefendants

16ER602; ER701. 

### 17 76Wn. App. 188. 884 P.2d 8 (1994), aff'd by State v. Clark, 129Wn.2d211, 916 P.2d 384 (1996). 

### 18 150Wn. App. 110, 206 P.3d 697 (2009). 

### 19 Hardy, 76Wn. App. at 190. 20 George, 150 Wn. App. at 118.

10No. 68725-5-1/11 appearing in surveillance footage of drug transactions because those officers had 

### known thedefendants for several years before identifying them in thefootage.21 By contrast, in George, Division Two ofthis court held the trial court abused its discretion in allowing a police officer's lay opinion testimony identifying two 

### defendants as robbers in a poorquality surveillance video.22 Theofficerhad seen the two defendants, along with seven other men, running from a van used to flee the 

### scene ofa robbery.23 Theofficeralso saw one ofthedefendants laterthat day at the hospital.24 Theappellate courtnoted, "These contactsfall far short ofthe extensive contacts in Hardv and do not support a finding that the officer knew enough about 

### [the defendants] to express an opinion thatthey were the robbers shown on the very 

### poorquality video."25 George and Hardv may be distinguishable on the basis that in both cases, the 

### jury viewed the videotape and was "free to reach its own conclusion about the identity 

### of[the defendants]."26 Here, thejurydid not have access to theunavailable footage. Buteven applying George and Hardv, it is arguable that Jorgensen and Blaine had sufficient contacts with Pegs and Ballou such that their opinions identifying Pegs and Ballou as the individuals they saw inthe video as well as during the burglary and 

### afterthe burglary were helpful to thejury and were admissible under Hardy. Officer


### 21 Hardv, 76Wn. App. at 190-92. 22 George, 150Wn. App. at 115-19. 23 id, at 113. 

### 24 Jd, at 115. 25 id at 119. 26 Hardv, 76Wn. App. at 191; see also George, 150Wn. App. at 115.

11No. 68725-5-1/12
Gann's testimony is much closerto the opinion testimony held inadmissible in George. But even if all ofthe lay opinion testimony was improper, any such error is
harmless. Under the best evidence rule, Jorgensen and Blaine were still allowed to testify to the facts depicted inthe video, including key circumstantial evidence linking Pegs to the person loading the box with the missing game consoles. Jorgensen and Blaine both testified that in the video, they observed a man who was not an employee enter the locked store room that is limited to authorized personnel. That person selected a brown box with red tape and white label typically used for electronic merchandise, emptied that box of less expensive electronic items, and then filled that box with several expensive Nintendo DS game components. While fillingthe box, he periodically peeked out the window in the door and put his phone to his ear. Then he placed the filled box outside the storeroom door. The surveillance video revealed another man in the same area with a cart. Then both men walked out ofthe store with the electronics box inthe cart without stopping at any register. Those two men were the only African American customers in the store at that time and were wearing the same clothes that Jorgensen saw Pegs and Ballou wearing while they were in the store, when leaving the store, and at the show-up. Furthermore, Jorgensen testified about what he directly observed during the burglary. When he yelled at Pegs and Ballou to stop as they were exiting the store, they increased their speed. When he loudly told the 911 dispatch the license number of their car, they looked at him, together lifted the box from the cart and dropped it

12No. 68725-5-1/13 

### into the trunk. Jorgensen heard a thud and saw the car suspension shift. Pegs and Ballou then drove away with Jorgensen running after them. 

### Taking the firsthand observations ofJorgensen at the store, togetherwith Jorgensen and Blaine's descriptions ofthe contents ofthe surveillance video, there is overwhelming circumstantial evidence that Pegs was the individual in the storeroom loading the box later recovered from the Jaguar, and that Ballouwas his accomplice. Whether viewed under the traditional harmless error rule that appears to apply to the 

### admission oflay opinion testimony,27 orunderthemore demanding constitutional harmless errorstandard,28 we are convinced that the admission of the opinion testimony ofJorgensen, Blaine and Officer Gann identifying Pegs and Ballou as the individuals depicted on the videotape did not affect the verdict. Prior BadActs Testimony 

### Pegs and Ballou both argue the trial court abused its discretion inallowing 

### Jorgensen to testify that he had met Ballou in the past because itcreated an inference of prior bad acts, prohibited by ER 404(b). ER 404(b) prevents the admission ofevidence ofother crimes, wrongs, or acts "to prove the character of a 

## person in orderto show action in conformitytherewith."29 Before admitting ER404(b) evidence, a trial court must "'(1) find by a preponderance ofthe evidence that the 

### 27 When evidence such as opinion testimony is improperly admitted, the trial court's error is harmless if it is minor in reference to the overall evidence as a whole. 

### George. 150 Wn. App. at 119; State v Bourgeois, 133 Wn.2d 389, 403, 945 P.2d 1120(1997). 28 Under the constitutional harmless error standard, we will not vacate the 

### jury's finding ifitappears beyond a reasonable doubt that the alleged error did not affect the verdict. State v. Monday. 171 Wn.2d 667, 680, 257 P.3d 551 (2011). 

### 29 State v. Foxhoven, 161 Wn.2d 168, 174-75, 163 P.3d 786 (2007).

13No. 68725-5-1/14
misconduct occurred, (2) identify the purpose for which the evidence is sought to be introduced, (3) determine whether the evidence is relevant to prove an element ofthe 

### crime charged, and (4) weigh theprobative value against theprejudicial effect.'"30 The court ruled that although Jorgensen could testify he had met Ballou in the past, Jorgensen was not permitted to testify about the circumstances under which the two had met. The court also ruled that although identification of Ballou was not necessarily at issue, the testimony was relevant to Jorgensen's credibility and not overly prejudicial. At trial, Jorgensen testified as follows: Q. Had you met James Ballou inthe past? A. Yes.[31] Pegs and Ballou argue the testimony was improperly admitted because 

### identity was not at issue, and even if itwas, it allowed thejury to inferthat Jorgensen had met Ballou because Ballou was a "criminal type." Pegs further argues that such
an inference would prejudice him, i.e., because Ballou and Pegs were friends, Pegs must be guilty by association. The State responds the testimony itself does not meet the threshold of evidence of other crimes, wrongs or acts; rather, Jorgensen simply testified he had met Ballou before.



### 30 Id. at 175 (guoting State v. Thang, 145 Wn.2d 630, 642, 41 P.3d 1159 (2002)). Ifthe court decides to admit such evidence, a defendant is entitled to a 

### limiting instruction only if he requests one. State v. Gresham, 173 Wn.2d 405, 424, 269 P.3d 207 (2012). The defendants did not request such an instruction. 

### 31 RP(Mar. 27, 2012) at 86.

14No. 68725-5-1/15


### The testimony did not constitute propensity evidence. Buteven if it did, the 

### trialcourt's balancing analysis was appropriate. The State rightly points out that both 

### defendants pleaded notguilty, putting identity atissue.32 BecauseJorgensen identified Ballou at the show-up and at trial, the fact that Jorgensen met Ballou was a 

## "factor[ ]relating tothatwitness's credibilitythatthejury is charged to evaluate."33 The trialcourt's ruling was consistent with ER 404(b). The trial court did not abuse its
discretion. JuryInstruction on "Property" 

### Pegs and Ballou also argue the trial court erred in refusing to give the jurya 

## proposed instruction defining "property" asmeaning "anything ofvalue."34 The charge ofburglary in the second degree required the State toprove Pegs and Ballou "with intent to commit a crime against a person or propertytherein,. . . enter[ed] or 

## remained] unlawfully in abuilding otherthan vehicle oradwelling."35 The prosecution argued they entered the storewith theintenttocommitthecrime oftheft. The court's instructions defined "theft" as "totake wrongfully the property ofanother 

## with intentto deprivethe ownerofsuch property."36

32 See Foxhoven. 161 Wn.2d at 178 

### 33RP(Mar. 27, 2012) at 22. 34 Clerk's Papers at 73. 35 RCW 9A.52.030. 

### 36 Clerk's Papers at 44.

15No. 68725-5-1/16


### We review the adequacy ofthejury instructions de novo "inthe context ofthe 

### instructions as awhole."37 Juryinstructions meet the requirements ofafairtrial "if they are supported by substantial evidence, allowthe parties to argue their theories ofthe case, and when read as a whole properly inform thejury ofthe applicable 

### law."38 Juries arepresumed tofollow thecourt's instructions.39 The State argued inclosing that whether Pegs took the Nintendo DS consoles
orjustthe box, either was sufficient to convict: So [the] State must prove beyond a reasonable doubt that Mr. Pegs entered that storage room with the intent to committhe crime of theft, to steal something. He did. DSs, he did. The box. Itdoesn't matter what it is. Ifhe entered there to take one DS, that's the intent to commit the crime oftheft. Ifhe went inthere to justtake this box that he didn't have permission to take, and we know that, right, because 

### nobody called the store to ask for permission to take a box, Mr. 

### Jorgensen said he didn't give permission to either ofthese men to have this box, that's enough. They had the intent to go inthat storage room 

### and to commit theft.' ] Pegs and Ballou contend the definitional instruction was necessary to respond 

### to the prosecutor's argumentthatthe intent to take an empty box was sufficient evidence of intent to commit theft, which would in turn support the burglary charge. 

### They further contend they needed the instruction to argue the box had no value, and therefore was not property.



### 37 State v. DeRvke, 149 Wn.2d 906, 910, 73 P.3d 1000 (2003); State v. Pirtle, 127 Wn.2d 628, 656, 904 P.2d 245 (1995). 

### 38 State v. Clausing, 147 Wn.2d 620, 626, 56 P.3d 550 (2002). 39 State v. Johnson, 124 Wn.2d 57, 77, 873 P.2d 514 (1994). 

### 40RP(Mar. 29,2012) at410-11.

16No. 68725-5-1/17 Pegs' counsel's closing argument highlighted the testimony that the box had
no value to Toys 'R Us: Theft is defined for you. Itrequires an intent to steal property. That's defined for you. It's the intent to deprive someone oftheir property. If there's no intent to deprive the store oftheir property, whether it's right or wrong, there's no burglary. Ifsomeone goes into a room and takes an empty box because they believe they're not depriving anyone of property that has any meaning because they give away this property, 

### they throw out this property, they take in the backroom and compactit, there's no intentto steal.14 ] Ballou's counsel's closing argument highlighted that the State had not found the DS game units Pegs had allegedly taken from the storeroom: The State's witnesses leave us with some questions. Like where did the DSs go?

. . . The problem for the State is that their case conflicts with itself. Eyewitness testimony conflicts with the empty box found seven minutes after the 911 call. Nothing was stolen. There's no evidence a crime occurred. And really, floating the theory that if itwasjust a box 

### it's a burglary? Really?'42' With respect to the defense theory that the empty box was not property because ithad no value, that theory is contrary to law. RCW 9A.04.110(22) provides


### a general definition ofproperty criminal statutes: "'Property' means anything of value, 

### whethertangible orintangible, real orpersonal."43 RCW 9A.56.010(21) provides a definition of "value" that is specific to theft and robbery: "'Value' means the market value ofthe property or services at the time and inthe approximate area ofthe


### 41 RP(Mar. 29, 2012) at 448. 42 RP(Mar. 29, 2012) at 440,442. 43 Thedefinition ofproperty as having anything of value may be useful in cases involving theft of intangible assets.

17No. 68725-5-1/18
criminal act." RCW 9A.56.010(21)(e) further provides that "[property or services having value that cannot be ascertained pursuant to the standards setforth above shall be deemed to be of a value not exceeding two hundred and fiftydollars." In State v. Tinker, our Supreme Court addressed these definitions inthe context of a challenge to an information alleging third degree theft that had not 

### specified thevalue ofthepropertytaken.44 Thecourt concluded that the information did not need to allege value to charge third degree theft, finding that "all items have
some value underthe statutory definition of value,
. . . there is no threshold specification necessary to establish the very illegality ofthe behavior. The act of 

### taking anyitem constitutes at leastthird degree theft."45 Pegs and Ballou are entitled to instructions that allow them to argue their theory ofthe case, but they are not entitled to argue a theory ofthe case that is contrary to law. With respect to the defense theory that taking only a box was not sufficient to show intent to commit theft, the instructions as given allowed Pegs and Ballou to argue that taking a cardboard box did not demonstrate intentto commit theft. They elicited testimony that Toys 'R Us would compact and discard its cardboard boxes, including the boxes containing electrical items. Because the store had the policy of discarding its boxes, Pegs and Ballou were free to argue, and infact did argue, that 

### taking such a box did not deprive the store ofany ofits property.46 This defense 44 155Wn.2d 219, 220-21,118 P.3d 885 (2005). 

### 45 id, at 222. 46 The underlying concept that merely taking an empty box destined for disposal should not support an intent to steal the box is more likely grounded in concepts of abandonment, presumed consent, claim of right, good faith, or mistake, rather than the definition of "property." See generally 3 Charles E. Torcia,

18No. 68725-5-1/19 theory did not require the definitional instruction. We conclude the court did not err in refusing to instruct thejury on the definition of "property" as "anything ofvalue." Further, even ifthe court did err in failing to give the definitional instruction, 

### anyerrorisharmless. Undertheconstitutional harmless error standard,47 wewill not vacate thejury's finding if itappears beyond a reasonable doubt that the alleged 

### errordid notaffecttheverdict.48 The State presented evidence that Pegs entered a restricted storeroom, put Nintendo DS game consoles in a cardboard box and placed the box outside the storeroom for Ballou. Ballou and Pegs pushed the shopping cart with the box out ofthe store, ignored the store manager's request that they stop, 

### placed the box in the trunk of their car, and drove away. Even though police did not find the Nintendo DS game consoles during the search ofthe Jaguar, Jorgensen saw 

### Pegs and Ballou lifting the box out of the cart together, heard a thud and saw the car

Wharton's Criminal Law 15th Ed. §§ 372 , 377 (1995) ("Ifan owner casts away 

### property, intending no longer to have any interesttherein, he is said to have 'abandoned' it. Abandoned property belongs to no one . . . [and] cannot be the 

### subject oflarceny."); see also 1 Paul H. Robinson, Criminal LawDefenses §§ 66(b), 66(h), 109(c) (1984). 

### 47 To the extent Pegs and Ballou argue the court'srefusal to instructthejury on an element ofthe offense charged was error, the constitutional harmless error 

### standard would apply. However, failure to further define a "commonlyunderstood" element is not an error ofconstitutional magnitude. State v. Bledsoe, 33 Wn. App. 

### 720, 727, 658 P.2d 674 (1983) (quoting State v. Pawling, 23 Wn. App. 226, 232-33, 

### 597 P.2d 1367 (1979)). Under the nonconstitutional harmless error standard, reversal is required only ifthere is a reasonable probability that error materially affected the trial's outcome. State v. Ray. 116 Wn.2d 531, 546, 806 P.2d 1220 

### (1991) (quoting State v. Smith, 106 Wn.2d 772, 780, 725 P.2d 951 (1986)). As the note on use to Washington patternjury instruction 2.21 provides, the definition of property should only be used when the term "may not be understood as applied to the facts of a particular case." 11 Washington Practice: Washington Pattern Jury Instructions Criminal 2.21, at 68 (3d ed. 2008). 48 Monday, 171 Wn.2d at 680.

19No. 68725-5-1/20 suspension shift when they dropped the box into the car trunk. And several game units were missing from the inventory taken immediately after the incident. In light of the strong evidence of a burglary, any error in refusing the instruction was harmless. Parenting SentencingAlternative Pegs requested a sentence under the parenting sentencing alternative statute (PSA), RCW 9.94A.655. A community corrections officer evaluated Pegs and reported to the court that he was eligible for the alternative sentence. The courtfirst 

### noted that Pegsand Ballou "each have substantial criminal history."49 The court recognized Pegs waseligible,50 butdeclined toauthorize thealternative sentence: Mr. Pegs, while you meet the statutory criteria for a parenting sentencing alternative, Iwill note that it is a new statute inthe sense that itwas passed into law in 2010, but Ibelieve there were only 17 

### people inthe entire state ofWashington that have received a parenting sentencing alternative. It is an extraordinarily rare sentence to receive. The fact is Ithink reflective of some ofthe policy
... to balance
... the 

### needs ofaccountability under the Sentencing Reform Act to the needs ofan offender who has a young family and may infact be the only 

### parent available to parent.... Here I'm not finding a—well, Isimply will not authorize a parent sentencing alternative sentence for you, Mr. 

### Pegs.'511 Pegs' sentence is stayed pending this appeal. 

### Pegs contends the court created additional criteria not present inthe statute, and that the refusal to properly considerthe PSA alternative was a failure to exercise


### 49 RP (May 3, 2012) at 32. 50 "An offender iseligible for the parenting sentencing alternativeif: (a) The high end ofthe standard sentence range forthe current offense is greaterthan one 

### year [and] [t]heoffender has physical custody of his or her minor child or is a legal guardian or custodian with physical custody of a child underthe age ofeighteen at the time of the current offense." RCW 9.94A.655(1)(a), (e). 

### 51 RP(May 3, 2012) at 33-34.

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discretion. He notes that the statute does not say the sentence should only be given inextraordinary cases, nor does itsay the offender must be the only parent or guardian ofthe child or children. Pegs relies upon State v. Grayson, where the Supreme Court held the trial court abused its discretion by refusing to give a drug offender sentencing alternative (DOSA) sentence where the principal reason was the judge's beliefthat there was inadequate funding to support the program, and where 

### thecourtdid not state on therecord anyotherreason for its denial.52 Pegs argues Grayson is analogous because here, the trial courtfound he was eligible but refused to give him the sentence based on the sole ground that the PSA was "extraordinarily rare," similarto the Grayson court's refusal to give the alternative because DOSA

was underfunded. Unlike Grayson, the court's rationale here was grounded in statutory considerations. In addition to the eligibility requirements setforth in 

### RCW 9.94A.655(1)(a), subsection (4) expressly requires that the court "shall consider the offender's criminal history when determining ifthe alternative is appropriate." While the court acknowledged Pegs was eligible, the court also noted his substantial criminal history and then immediately referred to the need to balance accountability withthe responsibilities ofoffenders with children. While the court did not explicitly state that its refusal to sentence Pegs under the PSA was due to his criminal history, the overall rationale expressed inthe ruling does not constitute a categorical refusal to 

### consider Pegs' request. We conclude the trial court did not refuse to exercise its

52 154 Wn.2d 333, 342, 111 P.3d 1183 (2005).

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discretion and did not abuse its discretion in declining to sentence Pegs under the
PSA. Statement ofAdditional Grounds Ballou raises numerous additional grounds for review, but many overlap with the unsuccessful arguments made by his counsel. The issues surrounding the 

### surveillancefootage have been addressedabove.53 Ballou also argues his trial should have been severed. A trial court's denial of 

### a motion to sever is reviewed for manifest abuse of discretion.54 To show that the trial court abused its discretion in denying severance, "the defendant must be able to 

### pointtospecific prejudice."55 Adefendant seeking severance has "the burden of demonstrating that a trial involving all counts would be so manifestly prejudicial as to 

### outweigh the concern forjudicial economy."56 Because the Statecharged Ballou based on accomplice liability, Ballou argues itwas improperfor him to be tried with 

### Pegs. Noabuse of discretion occurred because Balloudoes not point to any specific prejudice. Nor could he likely point to any prejudice because Pegs' defenses—that Pegs took nothing ofvalue from the storeroom and thatthe identificationtestimony based on the surveillance footage was inadmissible—were Ballou's defenses as well.



### 53 Ballou suggests that the State's failure to secure the video violated a broad range of his rights, but all of his arguments fail because there is no showing the police acted in bad faith. 

### 54 State v. Medina, 112Wn.App. 40, 52, 48 P.3d 1005 (2002). 55 State v. Bvthrow, 114 Wn.2d 713, 720, 790 P.2d 154 (1990). 56 Id. at 718.

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Ballou also challenges the sufficiency ofthe evidence. Viewing the evidence 

### in a light mostfavorable to the State, as wemust,57 there issufficientevidence of intent to committheft and burglary. Finally, Ballou advances arguments related to Officer Gann's stop ofthe Jaguar, including that the officer was outside hisjurisdiction and lacked probable
cause to stop him and Pegs. The record does not support either ofthese arguments. Affirmed.

WE CONCUR: 

# %^'VHI.^,

57 State v. Hosier, 157 Wn.2d 1, 8, 133 P.3d 936 (2006).

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