State v. Betts, 42519-0-II
| Decision Date | 30 July 2013 |
| Docket Number | No. 42519-0-II,42519-0-II |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. CATHERINE ANNE BETTS, Appellant. |
UNPUBLISHED OPINION
HUNT, J. - Catherine Anne Betts appeals her jury trial convictions and exceptional sentences for first degree theft and money laundering; she also appeals her convictions for 19 other counts of filing a false or fraudulent tax return. Betts argues that the trial court (1) erred in denying her motion to change venue, (2) violated her Fourteenth Amendment right to due process by admitting evidence of her coerced statements to coworkers, (3) erred in admitting an ER 1006 summary of original documents that contained hearsay and violated her right to confrontation, (4) wrongly instructed the jury that it could aggregate theft offenses greater than third degree theft in order to convict her of first degree theft, (5) wrongly instructed the jury on the elements of filing a false or fraudulent tax return and improperly commented on the evidence, and (6) "penalized" her with an exceptional sentence for exercising her constitutional rights to remain silent and to a jury trial. Betts also argues that (7) the prosecutor committed reversible misconduct during cross examination, (8) the State presented insufficient evidence to support herconvictions for first degree theft and filing false or fraudulent tax returns, and (9) her convictions for first degree theft and money laundering constituted double jeopardy.
We affirm Betts's convictions, vacate her exceptional sentences, and remand for resentencing by a different judge. We also impose $350 sanctions on Betts's appellate counsel, Jordan B. McCabe, for violation of court rules and for material misrepresentations to this court.
FACTS
Catherine Anne Betts worked as a cashier for the Clallam County Treasurer's Office (the County) from January 2003 until May 19, 2009, when she admitted to several employees that she had taken money from the County. As County cashier, Betts received daily revenues from various County departments, conducted their banking, collected tax payments, cashed checks, and reconciled and balanced the County's accounts at the end of each day. The County could receive several hundred thousand dollars a day from its departments and taxpayers.
One of Betts's cashier responsibilities was to collect real estate excise tax1 (REET) from sellers of real estate. When a person in the County sold real estate, he would submit a cash or check REET payment to the County, along with his deed and a REET affidavit. One of five County employees would accept the REET payment, stamp the affidavit with a sequential number, write the sequential number on the deed, attach the cash or check payment to theaffidavit, and leave it in Betts's cashier box. Although these five other employees could receive REET payments, all of the REET payments and REET affidavits were eventually given to Betts to process, to reconcile, and to use in balancing the County's accounts at the end of the day.
Betts was then responsible for entering information about the REET payments into a Microsoft Excel spreadsheet; she used this information to complete her daily account reconciliations. At the end of each month, Betts gave the County's treasurer's accountant, Anne Stallard, a "summary receipt" of the total amount of daily REET payments the County had received. 4 Verbatim Report of Proceedings (VRP) at 748. Relying on Betts's summary receipts, Stallard filed monthly tax "reports" with the Washington State Department of Revenue, detailing the amount of REET payments collected and remitting this money to the State as "unexpected revenue."2 4 VRP at 679, 683. Stallard submitted her monthly reports to the Department without independently checking Betts's daily accountings or cross-referencing her accountings with the REET affidavits received. According to Stallard, Betts was normally "very good" at ensuring that her accounts balanced each day. 4 VRP at 755. On May 18, 2009, however, Betts was unable to close out her accounts; she was "fidgety" and unable to concentrate. 4 VRP at 758. The next day, May 19, Betts was still unable to concentrate or to get her accounts to balance; and she appeared "flustered." 1 VRP at 74. Betts told coworkers that she was only "off by $299.32" and that she could not find the problem. 4 VRP at 759.
When Betts went to lunch, Stallard and a couple other County employees reviewed Betts's accounts and discovered the error for the missing $299.32.3 In reviewing Betts's accounts, the employees also found a suspicious $877.60 check for a REET payment, which was missing its accompanying REET affidavit; this check had not been entered into Betts's Excel spreadsheet of daily REET payments. Having discovered $299.32 when there was also an unaccounted for $877.60 check, Stallard was concerned and did not understand why Betts believed her accounts would balance.
Stallard discussed the problem with County Treasurer Judy Scott, who also served as Betts's supervisor. When Betts returned from lunch and was at her desk, Stallard and Scott asked Betts why the $877.60 REET check was not represented on the daily REET payments spreadsheet. Scott stepped away from the conversation. Betts then whispered to Stallard, "Don't look any further," and urged Stallard to go with her to the auditor's office. 4 VRP at 762.
Walking to the auditor's office with Stallard, Betts stopped outside the women's restroom, leaned against the wall, and suddenly started crying. VRP at 762. Stallard asked, "What['s] wrong?" 4 VRP at 762. Betts responded that she (Berts) had "ruined her life," that she "[didn't] want to go to jail," that she was "going to kill" herself and her girls, and that she "wanted to leave" the building. 4 VRP at 765-66. Concerned that Betts was threatening suicide, Stallard did not let her leave. Betts eventually confessed that she had taken "a couple excises,"or "about $1,200" (including the $877.60 payment), from the County. 1 VRP at 82; 4 VRP at 766. At no point did Stallard order Betts to cooperate or to answer her questions.
Stallard urged Betts to tell Scott about the money because Scott was Betts's supervisor. Betts requested "moral support," so Stallard accompanied Betts to Scott's office; Betts was still visibly shaken and sobbing. 4 VRP at 767 Before Scott asked any questions, Betts spontaneously stated that she "had really messed up," that she had taken approximately "$800 to $1,200" from the County "on two different occasions," and that she did not want Scott to "turn her in" to the authorities. 1 VRP at 106, 107; 4 VRP at 711. Betts explained that she had taken money from the County by "exchanging a] check for cash" because she needed "flight money" to get away from her abusive husband; she again stated that she wanted to commit suicide. 1 VRP at 107; 4 VRP at 768. Betts made these disclosures without Stallard or Scott having ordered her to cooperate or to answer any questions.
Believing that Betts needed "counseling," Scott left her office to speak with the County's personnel director, Marge Upham. Stallard stayed behind with Betts, who again stated that she wanted to leave. 1 VRP at 107. Still concerned for Betts's safety, Stallard would not let Betts leave. When Scott returned, Stallard took Betts to Upham's office, where Betts discussed more of her problems at home. At the end of this meeting, Scott and Upham decided Betts needed an attorney, and they called a family lawyer for her.
Meanwhile, Stallard examined Betts's daily REET payments spreadsheet for evidence of a "tender exchange," namely Betts's having exchanged a check for cash, as she had disclosed. 4 VRP at 769. When Stallard manually added the figures on Betts's daily REET payments spreadsheet, she (Stallard) derived a total different from the one at the bottom of the spreadsheet;she did not understand how this was possible. She also discovered a series of "hidden rows"4 in the Excel spreadsheet, with around $80,000 represented in negative dollar amounts5 in the last few months. 4 VRP at 772.
The County called the police and reported Betts's conduct to the County Auditor. The Auditor's Director of Special Investigations for fraud, James Brittain, conducted an investigation and reviewed eight boxes of Betts's daily REET reconciliations from June 2003 to May 2009. Brittain identified at least five schemes that had been used to misappropriate money from the County. He also noted that (1) the County's five employees shared passwords and had access to Betts's spreadsheets, (2) the total amount of money misappropriated from the County had increased over time (from $115,000 in 2006 to $198,000 in 2008), (3) the suspicious activity had ceased when Betts was on vacation, and (4) the number of tender exchanges had dropped dramatically after she was placed on administrative leave. Brittain discovered cash shortfalls of at least $617,000. Because Betts was the only person completing the daily REET account reconciliations, Brittain concluded that she was the only person who could have taken the money.
Port Angeles Police Department Detective Jason Viada obtained a search warrant for Betts's personal bank account records and credit card accounts. Viada discovered that, between 2004 and 2009, Betts had made cash deposits totaling nearly $150,000 more than she had earnedwith her payroll checks and other explainable sources of income. She had also made over $66,000 in credit card payments between June 2007 and September 2009.
The State charged Betts with (1) first degree theft, Count I; (2) money laundering, Count II; and (3) 19 counts of filing a false or fraudulent tax return, Counts III through XXI. The State alleged aggravating sentencing factors on the first degree theft and money laundering counts—that the crimes were a major economic offense or a series of offenses under RCW 9.94A.535(3)(d).
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