FILED
SEPT 9,2014
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
)
Respondent, ) No. 30032-3-III
)
v. )
)
KIMBERLY LYNN GRIJALVA, ) UNPUBLISHED OPINION
)
Appellant. )
KORSMO,J. Kimberly Grijalva challenges her convictions for second degree
theft and third degree introduction of contraband, arguing that the charging document
was defective and the evidence insufficient to support the charges. We disagree and
affirm.
FACTS
Ms. Grijalva worked as an attorney in Yakima. Part of her practice was criminal
defense; she maintained an office out of her home. She set up her home telephone as an
attorney line that could accept free and unrecorded telephone calls from the Yakima
County Jail (YCJ). Also living in her house for a time was a woman named Autumn
Scribner. 1 While living in Ms. Grijalva's house, Ms. Scribner dated two men who were
inmates in the county jail.
Ms. Scribner is also referred to in the record as Autumn Hubbard. We will use
1
the surname Scribner for purposes of this opinion as that is the name used in the bench
findings.
No. 30032-3-III
State v. Grijalva
Inmates at the YCJ had to use a calling service to place phone calls. A call made
to an attorney was free; other calls cost $2.50 per 15 minutes. The calling service was
provided by Inmate Calling Solutions (ICS), which split the telephone call revenue
equally with the YCl
In a 40-day period between April and June of2010, the two inmates whom Ms.
Scribner was seeing completed 916 telephone calls to Ms. Grijalva's house on her free
attorney line. She did not represent either man. Many of the phone calls were forwarded
to Ms. Scribner's cell phone. Ms. Grijalva was aware of the calls on her office line. A
federal investigation of one of the men led to the discovery of the phone calls. The YCJ
arranged to have the calls recorded. Review of the calls revealed Ms. Grijalva
participating in some of them and otherwise present for many of the calls.
In a separate incident that October, Ms. Grijalva visited inmate Calvin George at
the YCJ to discuss undertaking his representation. The visit occurred in a professional
visiting room at the jail. Ms. Grijalva slid her telephone to Mr. George through a pass
through window so that he could place a phone call to his mother about paying Ms.
Grijalva to represent him. The action was noted by corrections staff.
The Yakima County Prosecutor's Office filed charges against Ms. Grijalva of
second degree theft, based on the free telephone calls made by the two inmates, and third
degree introduction of contraband for passing her cell phone to Mr. George. The theft
count listed the Yakima County Department of Corrections as the victim of a theft of
2
No. 30032-3-III
State v. Grijalva
telephone services. The theft count later was amended to add a theory of accomplice
liability.
Ms. Grijalva waived her right to a jury trial and the matter proceeded to trial
before a visiting judge, the Honorable Brian Altman. Ms. Scribner testified with
immunity and stated that Ms. Grijalva encouraged use of the phone line for the personal
calls and set up the forwarding of the calls to Ms. Scribner's cell phone.
At the conclusion of the State's case, the defense moved to dismiss the theft
charge, alleging that the charging document failed to state a crime. The trial court denied
the motion. The defense argued the theft charge to the bench on theories that there was
no crime stated in the charging document and that Ms. Scribner was the person
responsible for the telephone calls. After hearing argument, the court found Ms. Grijalva
guilty as charged. The court expressly found that she had aided Ms. Scribner and her
boyfriends in circumventing the YCl telephone policy, resulting in a loss to the jail of
over $750. Written findings in support of the judgment were entered.
The court imposed a total sentence of 60 days on the two counts and converted
that time to 480 hours of community service. Standard financial obligations were
imposed, and the court also ordered restitution of$2,290, with $1,145 to ICS and $1,145
to YCl. Ms. Grijalva then timely appealed to this court.
3
No. 30032-3-111
State v. Grijalva
ANALYSIS
On appeal, Ms. Grijalva renews her challenge to the charging document and also
challenges the sufficiency of the evidence to support both convictions as well as the
evidentiary basis for the finding that she could afford to pay her legal financial
obligations (LFOs). We address the issues in the order stated.
Charging Document
Ms. Grijalva argues that the charging document failed to state a theft charge
because "telephone services" are not "property." We disagree.
The standards governing review of this challenge are long settled. A charging
document must state the elements of the alleged crime in order to give the accused an
understanding ofthe crime charged. "All essential elements of a crime, statutory or
otherwise, must be included in a charging document in order to afford notice to an
accused of the nature and cause of the accusation against him." State v. Kjorsvik,
117 Wn.2d 93, 97,812 P.2d 86 (1991). When challenged for the first time after a verdict
has been returned, courts will liberally construe the document to see if the necessary facts
can be found. If not, the charge will be dismissed without prejudice. Even if the charge
is stated, a defendant who shows prejudice from "inartful" pleading also receives a
dismissal of charges without prejudice. [d. at 105-06. The liberal construction standard
for documents that are not timely challenged in the trial court is designed to discourage
4
No. 30032-3-111
State v. Grijalva
"sandbagging" by which the defense withholds a challenge that could otherwise be timely
remedied. Id. at 103.
Second degree theft requires proof that the defendant committed theft of "property
or services" other than a firearm valued at more than $750. RCW 9A.56.040(1)(a).
'" Services' includes, but is not limited to, labor, professional services, transportation
services, electronic computer services ... and the supplying of commodities of a public
utility nature such as gas, electricity, steam, and water." RCW 9A.56.010(15).
The amended information here alleged that Ms. Grijalva:
acting as a principal or an accomplice, you or an accomplice wrongfully
obtained and/or exerted unauthorized control over property, telephone
services, of a value exceeding $750.00 but not more than $5,000.00, which
was not a firearm or motor vehicle, belonging to Yakima County
Department of Corrections, with intent to deprive Yakima County
Department of Corrections of that property.
Clerk's Papers (CP) at 10.
Ms. Grijalva argues that telephone services are not "property" under the noted
definition of "services" listed in the preceding paragraph and that her view is further
supported by the existence of the crime of theft of telecommunication services,
RCW 9A.56.262, that makes it a crime to use a telecommunication device to obtain
telecommunication services without paying for them. We do not believe the existence of
the telecommunications theft statute furthers Ms. Grijalva's argument here. That statute
only addresses thefts committed by use of a telecommunication device, an object that is
5
No. 30032-3-111
State v. Grijalva
capable of "transmitting or receiving telephonic or electronic communications."
RCW 9A.S6.01O(l9)(a). It involves only a particular method of theft that is not
applicable to the facts of this case.
The telecommunications theft statute is instructive, however, on the meaning of
"services." The previously quoted definition of "services" is, by the express language
of the statute, non-exclusive. RCW 9A.S6.010(lS). The definition of
"telecommunication service" clearly places telephone calls in the category of "services."
RCW 9A.S6.010(20). The legislature, having defined telephone calls as a service,
recognized them as something that can be stolen. We thus have no difficulty concluding
that telephone calls are a "service" under the general theft statutes. As telephone calls are
an item that can be stolen, the charging document did state a crime when it alleged that
Ms. Grijalva had stolen telephone services.
The remaining question under Kjorsvik is whether, despite charging an offense,
the use of "inartful" language prejudices the defendant. Here, the charging document
expressly stated that the crime involved the taking of "property, telephone services." Ms.·
Grijalva contends that the telephone calls were not "property," but does not persuasively
argue that she was prejudiced by the use of the word in the charging document. She
clearly was prepared to address the issue, having brought a motion to dismiss at the end
of the State's case, and then renewing the contention during closing argument. Far from
being confused or prejudiced by the charging language, Ms. Grijalva made it a central
6
No. 30032-3-111
State v. Grijalva
part of her defense of the case. Both parties knew the basis for the theft charge and
disputed whether those facts constituted a crime. There was no prejudice from describing
the telephone calls as "property."
The amended information stated the crime of second degree theft. There was no
prejudice from stating that ''telephone services" constituted "property." Thus, the
charging document was sufficient.
Sufficiency ofthe Evidence
Ms. Grijalva next argues that the evidence was insufficient to support the bench
verdicts on both counts. Properly viewed, the evidence supported the verdicts. 2
Well settled standards again apply to this challenge. The question presented is
whether there was evidence from which the trier of fact could find each element of the
offense was proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319,
99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); State v. Green, 94 Wn.2d 216,221-22,
616 P.2d 628 (1980). The reviewing court will consider the evidence in a light most
favorable to the prosecution. ld.
2 Appellant assigns error to findings of fact nos. 12, 13, and 43 involving the
evidence supporting the two convictions, as well as several conclusions of law regarding
the sufficiency of the evidence. As she does not argue that the evidence does not support
the challenged findings (an argument that we would reject as each of them was supported
by the testimony), we presume the challenges are the legal efficacy of the facts and treat
these assignments of error as subsumed in her legal argument. The dissent confuses the
policy mentioned in finding 43. The finding addresses the written YCJ policy concerning
inmate telephone calls applicable to those people mentioned in the finding rather than an
unwritten attorney phone policy.
7
No. 30032-3-III
State v. Grijalva
Theft Charge. Ms. Grijalva argues 3 that the evidence does not support this count
because (a) she did not exercise "wrongful" or "unauthorized" control over the telephone
calls and (b) the service did not belong to the Yakima County Department of Corrections,
the named victim. We address each argument in turn.
A person commits theft when she does "wrongfully obtain or exert unauthorized
control over the property or services of another." RCW 9A.56.020(l)(a) (partial). Ms.
Grijalva contends there was nothing improper about her use of the telephone services
because, as an attorney, she was authorized to set up the free telephone line. This argument
proves too much. The purpose ofthe free attorney telephone service is to facilitate the
attorney-client relationship and the ability to present a defense by allowing an inmate
unfettered access to his attorney. Instead, Ms. Grijalva used the service to provide her
friend, Ms. Scribner, with free telephone calls with her boyfriend(s), circumventing the pay
per use service for personal telephone calls applicable to the other YCl inmates. This
abuse of the free attorney line certainly was both unauthorized and wrongful.
Her other argument fares no better. The theft statute does not require that there
be a named victim, but only that the theft involved the property "of another." ld.
3 In contrast, the dissent makes an argument not presented by Ms. Grijalva in this
court or the trial court (and contrary to RAP 12.1) by focusing on the fact that there was no
express limitation on her use ofthe attorney line. However, Ms. Grijalva was charged and
convicted as an accomplice to the inmates' efforts to evade the phone use policy applicable
to them rather than for abusing an unwritten policy concerning attorney lines. Report of
Proceedings at 787.
8
No. 30032-3-111
State v. Grijalva
State v. Lee, 128 Wn.2d 151,158,904 P.2d 1143 (1995); State v. Jefferson, 74 Wn.2d 787,
790,446 P.2d 971 (1968); State v. Easton, 69 Wn.2d 965,967-68,422 P.2d 7 (1966). A
representative oflCS testified at trial concerning the telephone system, the cost of$2.50
per telephone call paid by inmates, and how ICS would then split that sum with the jail for
each paid call. The State clearly proved that the telephone services belonged to "another."
It was not Ms. Grijalva's telephone service.
Ms. Grijalva argues that the telephone service belonged to ICS, not the YCJ or the
county's corrections department. However, that argument is a statutory irrelevancy.
Whenever the State undertakes to prove an extraneous element, that element becomes the
law of the case when it is included in ajury instruction; an appellate court's sufficiency
review must thus include the additional element. State v. Hickman, 135 Wn.2d 97,
101-05,954 P.2d 900 (1998). Assuming that the same doctrine applies in a bench trial,
the question then would become whether the prosecutor attempted to prove that the
victim's identity as an element of the case. That did not happen here. Both ICS and YCJ
were identified as the entities that would lose revenue from the free telephone calls, but
the prosecutor never included either of them as elements of his case.
Neither of Ms. Grijalva's arguments are persuasive. The State proved its case, and
the trial court entered a series of powerful findings detailing Ms. Grijalva's knowledge of
the use of the free telephone call system by Ms. Scribner and her friends, as well as her
assistance to their use of the system. She clearly was an accomplice to their actions. She
9
No. 30032-3-III
State v. Grijalva
was captured on quite a few of the recordings and knew what Ms. Scribner and her
friends were using the free telephone calls to discuss. None of them involved legal
business, and none of the recorded calls involved her clients in any manner. She allowed
a friend to circumvent the ICS system in order to save money, thus costing ICS and the
county over $2,000 in lost revenue. This was theft by any stretch of the imagination.
The evidence amply supported the bench verdict on the charge of second degree
theft.
Introduction ofContraband. Ms. Grijalva also challenges her conviction for third
degree introduction of contraband. While we have some sympathy for her position, we
nonetheless have to conclude that the evidence supported the verdict.
A person commits third degree introduction of contraband when she "knowingly
and unlawfully provides contraband to any person confined in a detention facility."
RCW 9A.76.160(l). "Contraband," in turn, is defined as a "thing which a person
confined in a detention facility is prohibited from obtaining or possessing by statute, rule,
regulation, or order ofa court." RCW 9A.76.010(1). The amended information charged
Ms. Grijalva with providing ~'contraband, a cellular phone, to a person in a detention
facility." CP at 10.
Ms. Grijalva argues that she was permitted, as an attorney, to bring a cell phone
into the jail, and that professional visitors such as attorneys were permitted to bring cell
phones with them to the jail. She notes that the jail changed its policy for professional
10
No. 30032-3-111
State v. Grijalva
visitors and expressly prohibited cell phones after this incident. Her arguments, however,
miss the mark. She was not charged for bringing her cell phone into the jail. She was
charged-and convicted-for lending it to an inmate. The policy governing professional
visitors is not apropos.
Instead, the question was whether cell phones were contraband when possessed by
an inmate. The testimony at trial, reflected in finding of fact 11, indicated that there was
"much signage in the Yakima County Jail that forbids cell phones in secure areas."
CP at 68. From that fact the court inferred that Ms. Grijalva had knowledge that inmates
were not permitted cell phones. Although Ms. Grijalva challenges finding 12, it is
certainly a reasonable inference from the evidence. A regular visitor to the challenge
would necessarily be on notice that inmates could not have cell phones. 4
Additionally, Ms. Grijalva recognized her mistake right after she made it and
acknowledged the error to jail personnel. From this evidence, the trial court could
properly conclude that cell phones were contraband when possessed by inmates and that
Ms. Grijalva knew that fact. Accordingly, the conclusion that she knowingly introduced·
contraband was supported by sufficient evidence in the record.
Although we uphold the conviction for third degree introduction of contraband, we
do question the decision to file charges in these circumstances. Ms. Grijalva dialed the
4Indeed, the existence of the ICS phone system that Ms. Grijalva worked to
bypass was additional evidence that she knew inmates were not permitted to have
personal telephones.
11
No.30032-3-II1
State v. Grijalva
telephone number herself and passed the phone for a brief conversation between Mr.
George and his mother. The phone was promptly returned and there was no danger of
some other contraband being passed along at the same time. The incident occurred in the·
view ofjail personnel. This violation was de minimis and hardly seems worth the effort
to prosecute it as a crime when there were other measures available to ensure no future
violations by Ms. Grijalva.
The evidence supported both bench verdicts.
Financial Obligations
Ms. Grijalva also challenges the inclusion in the judgment and sentence form of a
standard paragraph stating that she had the means to pay the costs of incarceration and
listing the rates. CP 77 (~4.D.4). Her argument that this finding is not supported by the
record fails for two reasons.
First, she did not raise this issue at the trial court where it could have easily been
addressed and, if necessary, corrected. These types of challenges cannot be presented for
the first time on appeal. State v. Duncan, 180 Wn. App. 245, 327 P.3d 699 (2014).
Second, she has presented no evidence that the incarceration costs apply to people, like
her, whose entire sentence has been converted to community service. On this record, it
does not appear that she potentially owes any money for serving a term of community
servIce.
12
No.30032-3-II1
State v. Grijalva
For both reasons, this final challenge also fails.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
WE CONCUR:
~,-4.C