State v. Beiermann, Nos. 28948-2-II Consolidated with 29431-1-II (Wash. App. 1/28/2004)
| Decision Date | 28 January 2004 |
| Docket Number | Nos. 28948-2-II Consolidated with 29431-1-II,s. 28948-2-II Consolidated with 29431-1-II |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. TAMMY LYNN BEIERMANN, Appellant. |
Appeal from Superior Court of Pierce County. Docket No: 01-1-03567-5. Judgment or order under review. Date filed: 06/07/2002.
Counsel for Appellant(s), David William Murdach, Attorney at Law, 417 S G St, Tacoma, WA 98405-4711.
Counsel for Respondent(s), John Michael Sheeran, Attorney at Law, Pierce Cty Prosecutor S, 930 Tacoma Ave S Rm 946, Tacoma, WA 98402-2102.
Tammy L. Beiermann appeals her convictions of two counts of first degree theft and one count of first degree perjury. We affirm.
Stuart Marcus is the trustee of the Henry Marcus estate which owns the Crossbow and Vilaire Apartments in Pierce County, Washington. In 1993, Marcus hired Tammy Beiermann to be the resident manager at the Vilaire Apartments. In 1996, she also became the manager of the Crossbow Apartments. Marcus paid her $900 a month as the resident manager. Marcus also paid her husband, Michael, for doing maintenance work.
Beiermann was an authorized signator on the bank account for both apartment complexes. The bank account was under the name Sunray Associates (Sunray). In February 1997, Beiermann told Marcus that her husband was having knee replacement surgery and would be unable to continue to do maintenance at Vilaire Apartments.
On July 2, 1997, the Beiermanns and their children were involved in a car accident. In preparation for her civil suit against the driver of the car, Beiermann took part in a deposition in June 1999. During the deposition, she answered questions regarding a wage loss claim she submitted to her husband's insurance company after the accident. Beiermann stated in her deposition: Ex. 45, at 20. She further stated that at the time her employment ended with Sunray Associates in 1998, she had not returned to working full-time hours. Her testimony was that she worked about 20 or 24 hours a week. She also testified that she received $900 per month as a salary, free rent, and paid utilities as the resident manager. She also received an additional $500 a month for completing capital improvement projects.
In July 1998, Beiermann visited Marcus in California. During her visit, Beiermann told Marcus that she was moving out of the resident manager's unit and into a home she had bought. Marcus reduced Beiermann's salary by $200 a month. Beiermann continued to do the bookkeeping and record keeping for the apartment complexes.
Marcus and his wife visited the apartments in early September. Marcus gave $3,500 to Beiermann for repairs to the vacant units and for vinyl in the laundry rooms. Marcus also saw that some of the apartments had not yet been `turned over.'1 6 Report of Proceedings (RP) (Apr. 10, 2002) at 319. Marcus discussed these items with Beiermann who told him there was a shortage of funds.
While checking the apartment books, Marcus noticed the absence of memos for checks that had been written. When Marcus asked Beiermann to provide that information, she became verbally abusive and quit. Marcus spoke with Beiermann and her husband, and she returned to her job.
Marcus visited the apartments again in November. On November 5, after Beiermann left the office, Marcus went through her records. The following day Beiermann arrived with her husband and told Marcus she planned to resign. Marcus made a statement to Beiermann about why he thought she was leaving. Beiermann responded that she did not need to worry because John Ladenburg was her cousin.2 6 RP at 351. On further review of the records, Marcus found checks made payable to `cash' and drawn on the Sunray account, signed by Beiermann. RP at 369.
Beiermann and her husband sued Marcus after she resigned. While preparing for the civil suit in January 2000, Beiermann took part in another deposition. When asked about the July 1997 accident and her ability to work, she responded she was unable to perform her duties as an apartment manager. Later in the deposition, she testified to receiving her management fee for January 1998.
On July 3, 2001, the State charged Beiermann with two counts of first degree theft. Count I charged Beiermann with theft arising from her unauthorized control over money belonging to Marcus; Count II charged theft from Farmers Insurance based on her claim for lost wages due to the car accident. It also charged her with first degree perjury arising from statements made in her deposition in the case of Beiermann v. Nicholas, regarding her injuries and lost wages from the car accident. The State later amended the information, changing the time period in count III, the perjury charge.
During pretrial motions, Beiermann moved to exclude her statement regarding her relationship with John Ladenburg. She argued that the statement was not material to the State's case. The court disagreed with Beiermann, ruling her statement an admission that was admissible.
At trial, the State offered exhibit 4 into evidence. Exhibit 4 was a compilation of checks drawn on the Sunray account. Marcus testified that all the checks in the exhibit were written for items that he had not authorized and that the checks were signed by Beiermann. The State also used the exhibit to contradict statements in Beiermann's deposition.
The exhibit showed checks written to Beiermann in the amount of $900 during the period she received lost wages payments, August 1997 through July 1998. She testified during her deposition for the Beiermann v. Nicholas case that at the time of the accident in August 1997, $900 a month was the salary Marcus paid her. She also received an additional $500 for doing improvements on the apartments.
Also offered as evidence were the State's exhibits 6 and 7. Exhibit 6 is a letter Marcus allegedly wrote to Farmers Insurance (Farmers) explaining how Beiermann was going to lose wages due to the car accident. Exhibit 7 explains lost wages from Sunray assigned to Beiermann's husband. Marcus testified that he did not write either of the letters. Farmers subsequently paid Beiermann $12,629.28 in lost wages under her husband's personal injury protection policy because of the forged letters. Farmers was also unaware that Michael Beiermann had resigned earlier in 1997 from his duties at Sunray, and they paid him $26,476.76 for lost wages.
Beiermann attempted to get exhibits 11 and 13 entered as evidence. These exhibits represented the civil complaint and answer from the Beiermann v. Marcus lawsuit. Beiermann wanted to use the documents to show Marcus's bias toward her. The court refused to admit the exhibits.
The State also offered exhibits 37, 38, and 39. These exhibits were the Beiermanns' tax returns for 1996, 1997, and 1998. The court admitted the tax returns as evidence over Beiermann's objection. The State also presented testimony from Scott Fohn, a claims supervisor from Farmers, regarding wage loss payments to Michael Beiermann. He testified that Farmers paid Michael for lost income based on exhibit 7. Beiermann objected to the testimony, but the court denied the objection.
During presentation of her case, Beiermann attempted to get portions of her deposition transcripts from the Beiermann v. Marcus case and the Beiermann v. Nicholas case entered as exhibits. The court refused the exhibits but allowed Beiermann's counsel to ask questions of her similar to the ones in the deposition. .
At the close of Beiermann's case, she proposed jury instructions and special verdict forms. The trial court excluded proposed instruction 3. Beiermann also proposed instruction 7, which the court refused to give. The court also refused to give Beiermann's special verdict forms for counts I and II.
The jury found Beiermann guilty on all three counts. As part of her sentence, the trial court ordered Beiermann to pay restitution of $47,854.24. This appeal followed.
Beiermann contends the trial court erred by denying her motion to dismiss count II of the amended information. She contends that because Farmers waived its subrogation rights to monies it paid, some $12,629.28, she cannot be convicted of theft. Her contention is that this is a contractual dispute between her and her personal injury protection (PIP) insurance carrier. She does not argue that she had a superior interest in the money she got from Farmers; but her argument is that because Farmers did not pursue its legal remedy civilly, the State could not prosecute her. She argues that the contractual debt between her and Farmers cannot constitutionally support her theft conviction. Beiermann's contention lacks legal support.
For the jury to find Beiermann guilty of first degree theft, the State had to prove: Beiermann, by color or aid of deception, obtained control over the property of another, with the intent to deprive the owner of such property, and that the value exceeded $1500. RCW 9A.56.020(1)(b). RCW 9A.56.030(1)(a). Beiermann offers no legal authority to justify her proposition that because Farmers decided not to seek civil remedies that decision altered what the State had to prove. Thus, Beiermann's argument is meritless.
Beiermann contends the State failed to meet its burden of proof for count III. Beiermann's contention is that the State failed to prove that her testimony in the Beiermann v. Nicholas case concerned a material matter. Her contention is incorrect.
RCW 9A.72.010(1) defines a `materially false statement' as ...
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