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Court of Appeals Division II
State of Washington

Opinion Information Sheet

			

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                       DIVISION  II

STATE OF WASHINGTON,                                             No.  41552-6-II

                             Respondent,

       v.

WENDY S. PETERSON,                                         UNPUBLISHED OPINION

                             Appellant.

       Quinn-Brintnall, J.   --   Wendy Peterson appeals her conviction of theft of a motor vehicle, 

arguing that the trial court erred when it answered a jury question without first consulting the 

parties.1 Holding that the error was harmless, we affirm.

                                            FACTS

       On December 13, 2009, Peterson and Charles Showalter went to the residence of Jack 

Sergojan on Sudderth Road in Hoquiam, near Humptulips.  Sergojan used this residence as a 

vacation home.  He did not visit the home during December 2009 and early January 2010, and 

had not given anyone permission to stay there or remove anything in his absence.  When 

1 A commissioner of this court considered the matter pursuant to RAP 18.12 and 18.13 and 
referred it to a panel of judges. 

No. 41552-6-II

Peterson and Showalter arrived, they found that their acquaintance, Don Erickson, had removed 

Sergojan's 1968 Camaro from the garage.  Peterson and Showalter took the Camaro, placed it on 

a tow dolly, and transported it to their home.  Peterson and Showalter sold the Camaro to Frank 

Hejna, Peterson's brother, on December 17 or 18.  

       On January 19, 2010, Deputy Sheriff Carl Lovgren was dispatched following a report of a 

burglary at Sergojan's home.  It appeared to Deputy Lovgren that people had been living at 

Sergojan's residence without permission for an extended period.  Sergojan's 1968 Chevy Camaro 

was also missing from the garage. 

       Grays Harbor County       Sheriff's Office Sergeant Brad Johansson supervised the 

investigation of Sergojan's stolen Camaro.  He contacted Peterson, who said that Erickson told 

Showalter about a Camaro he had found in an abandoned garage in Humptulips.  In her statement 

to Deputy Johansson, Peterson said that she and Showalter decided to steal the Camaro and sell it 

to Hejna because they needed money to buy their children presents for Christmas.  Peterson 

explained that she and Showalter borrowed a car dolly from Erickson, took their S-10 Blazer up 

to the Sudderth Road house, and, with Erickson's help, towed the Camaro to Hoquiam.  

       The State charged Peterson with theft of a motor vehicle.  At trial, Peterson testified that,

after picking up the tow dolly from Erickson's house, she went to the Sudderth Road house.  She 

was told that Erickson's friend, Jimmy Simpson, and Simpson's female companion lived there.  

When Peterson arrived, the house looked as though Simpson had been living there because the 

power was on and the phone rang.  Erickson asked Peterson and Showalter to tow the Camaro to 

their house, from where Erickson's brother would retrieve it, because Erickson could not keep the 

vehicle at his house.  Peterson did not find this request to be out of the ordinary because 

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No. 41552-6-II

Showalter and Erickson often help each other with towing.  Peterson believed the Camaro 

belonged to Erickson.  After she did not hear from Erickson for about eight days about his 

brother picking up the vehicle, Peterson contacted her own brother about selling the car because 

they needed money to buy Christmas gifts.  

       The to-convict instruction read, in part,

              To convict Wendy Peterson of the crime of theft of a motor vehicle, each 
       of the following three elements of the crime must be proved beyond a reasonable 
       doubt:
       (1) That on or about the period beginning September 15, 2009 and ending January 
              18, 2010, Wendy Peterson wrongfully obtained a motor vehicle belonging 
              to another;
       (2) That Ms. Peterson intended to deprive the owner Jack Sergojan of the motor 
              vehicle; and
       (3) That this act occurred in the State of Washington.

Clerk's Papers (CP) at 20-21.  The State asked that subsection (2) instruct the jury that Peterson 

intended to deprive simply "the owner" of the motor vehicle, rather than to specifically name 

Sergojan, because the identity of the owner is not an element of the crime of theft of a motor 

vehicle.  The court denied that request because the name "Jack Sergojan" had been specified in 

the information.  

       During deliberations, the jury submitted a question to the court.  The question, referring to 

subsection (2) of the to-convict instruction read, "Can the name 'Jack Sergojan' be interchanged 

with Don Erickson since she thought he was the owner."         CP at 26.  The court, without 

consulting counsel, responded, "You will be guided by the instructions given to you by the court."  

CP at 27.

       The jury found Peterson guilty of theft of a motor vehicle.  

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                                          ANALYSIS

       Peterson argues that the trial court erred when it answered the jury's question without 

having solicited a response from the parties.  She contends that because the question suggested 

that the jury believed Peterson's account of the facts, particularly her belief that she was stealing 

the car from Erickson rather than from Sergojan, the court's response prejudiced her.

       A defendant has a constitutional right to be present at all stages of the proceedings, 

including a trial judge's consideration of jury questions.  State v. Ratliff, 121 Wn. App. 642, 646, 

90 P.3d 79 (2004).  CrR 6.15(f)(1) further provides,

       The jury shall be instructed that any question it wishes to ask the court about the 
       instructions or evidence should be signed, dated and submitted in writing to the 
       bailiff.  The court shall notify the parties of the contents of the questions and 
       provide them an opportunity to comment upon an appropriate response.  Written 
       questions from the jury, the court's response and any objections thereto shall be 
       made a part of the record.  The court shall respond to all questions from a 
       deliberating jury in open court or in writing.  In its discretion, the court may grant 
       a jury's request to rehear or replay evidence, but should do so in a way that is least 
       likely to be seen as a comment on the evidence, in a way that is not unfairly 
       prejudicial and in a way that minimizes the possibility that jurors will give undue 
       weight to such evidence.  Any additional instruction upon any point of law shall be 
       given in writing.

       Thus, a court is to "communicate with a deliberating jury only with all counsel and the trial 

judge present."  State v. Russell, 25 Wn. App. 933, 948, 611 P.2d 1320 (1980).  However, a 

court's error in answering jury questions in the defendant's absence may be harmless if the State can 

show the harmlessness beyond a reasonable doubt.  State v. Caliguri, 99 Wn.2d 501, 509, 664 P.2d 

466 (1983); State v. Allen, 50 Wn. App. 412, 419, 749 P.2d 702, review denied, 110 Wn.2d 1024 

(1988).  If the court's answer to a jury question is "'negative in nature and conveys no affirmative 

information,'" the defendant suffers no prejudice and the error is harmless.  Allen, 50 Wn. App. at 419 

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No. 41552-6-II

(quoting Russell, 25 Wn. App. at 948).

       In State v. Langdon, 42 Wn. App. 715, 713 P.2d 120, review denied, 105 Wn.2d 1013 (1986), 

the court instructed the jury on the elements of first and second degree robbery, accomplice 

liability, and theft.  During deliberations, the jury sent a note to the judge reading, "Does 

'committing' mean aid in escaping?"   Langdon, 42 Wn. App. at 717.  The judge, without 

consulting with counsel, responded, "You are bound by those instructions already given to you."

Langdon, 42 Wn. App. at 717.  Langdon argued that this communication violated CrR 6.15(f)(1) 

and his right to be present at all stages of the proceedings.  The court disagreed and found any 

error was harmless because the communication was neutral and simply referred the jury back to 

the previous instructions.  Langdon, 42 Wn. App. at 717-18.

       As in Langdon, the trial court erred when it communicated with the jury in the absence of 

counsel.  Ratliff, 121 Wn. App. at 646.  But the note merely directed the jurors to refer to the 

instructions of the court.  The to-convict instruction required the jury to conclude that Peterson 

had stolen the car from Sergojan in order for it to convict her of theft of a motor vehicle.  It is 

presumed that a jury follows the court's instruction.  State v. Johnson, 124 Wn.2d 57, 77, 873 

P.2d 514 (1994).  Therefore, Peterson's contention that the court's reply to the jury's question 

caused the jury to convict her of a crime other than that defined in the to-convict instruction is 

meritless.  Because the response was neutral in nature like that in Langdon, no prejudice resulted 

from the trial court's response.  42 Wn. App. at 717-18.  Although the court erred in answering 

the question because Peterson and her counsel were not present during the court's response, the 

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No. 41552-6-II

error is harmless beyond a reasonable doubt.  Russell, 25 Wn. App. at 948.      Accordingly, we 

affirm.

       A majority of the panel having determined that this opinion will not be printed in the 

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it 

is so ordered.

                                                 QUINN-BRINTNALL, J.
We concur:

HUNT, P.J.

JOHANSON, J.

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