State v. Brentin, 44847-5-II

• Decision Date: 31 March 2015
• Docket Number: 44877 -7 -II,44847-5-II
• Court: Washington Court of Appeals
• Parties: STATE OF WASHINGTON, Respondent, v. ANTHONY DAVID BRENTIN, Appellant. v SHARI ANNE BRENTIN, Appellant. STATE OF WASHINGTON, Respondent,

STATE OF WASHINGTON, Respondent, v SHARI ANNE BRENTIN, Appellant. STATE OF WASHINGTON, Respondent, v. ANTHONY DAVID BRENTIN, Appellant.

Nos. 44847-5-II, 44877 -7 -II

Court of Appeals of Washington, Division 2

March 31, 2015

UNPUBLISHED OPINION

WORSWICK, J.

Shari and Anthony Brentin, tried jointly, each appeal their first degree theft convictions^[1] for stealing Suzanne Faveluke's money by color or aid of deception. The Brentins argue that (1) the trial court violated CrR 3.3's time for trial rule by granting two contested continuances for State's witness Teresa Loucks's unavailability, (2) the trial court erroneously admitted evidence, (3) the trial court violated their right to present a defense by excluding evidence of specific acts of Faveluke's generosity, and (4) the accomplice liability statute is unconstitutionally overbroad. Finally, Anthony^[2] argues that (5) insufficient evidence supports his first degree theft conviction. We affirm.

FACTS

A. Background? ^[3]

Shari Brentin and her husband Anthony Brentin jointly owned a financial services and insurance business. The Brentins pooled their financial resources together in joint bank accounts. In 2011, the Brentins' house had been foreclosed upon, which led them to live in a rental house. The landlord evictedthem for failure to pay rent, and secured a judgment against them in the amount of $4, 680.24.

By 2011, the Brentins had known Suzanne Faveluke for about five years. Faveluke was a rich, elderly woman who had a reputation for generously giving her money to nonrelatives. Faveluke made daily visits to her local bank branch for years. Two bank tellers testified that historically, Faveluke would never withdraw large sums of cash from the bank.

In 2011, Faveluke fell down a flight of stairs, injuring her leg and back, and requiring her . to stay in a rehabilitation center for a few months/The Brentins visited Faveluke there almost daily. At the rehabilitation center, Faveluke gave Anthony, who was then a candidate for city council, $500 in five $100 bills, for his campaign. After Faveluke returned home from the rehabilitation center, Shari and Anthony both assisted Faveluke on a daily basis.

In October of 2011, a local newspaper printed an article about Anthony's candidacy, criticizing him for having the outstanding $4, 680.24 judgment against him. Also in October of 2011, Shari and Anthony talked with Faveluke about Anthony's campaign and his lack of campaign funding. Faveluke gave Anthony $4, 900 by check for his campaign to purchase "signs, flyers, posters, etcetera." Verbatim Report of Proceedings (VRP) at 587.

Anthony testified that he had no intent to campaign, and had no campaign bank account, campaign manager, signs, or call centers. Anthony testified that he used Faveluke's money to pay the outstanding judgment.

On three separate occasions from October to December of 2011 Shari asked Faveluke for $1, 000, $4, 352, and $5, 000 respectively. Shari told Faveluke that she needed this money to pay her veterinarian to save her sick cat's life, and that the veterinarian would accept only cash. Faveluke then made a series of withdrawals from the bank when a bank teller named Teresa Loucks was present. First, with Shari by Faveluke's side, Faveluke withdrew $1, 000 in cash and told Loucks that the cash was intended for Shari's cat. Second, with Shari by Faveluke's side, Faveluke cashed a $5, 000 check and told Loucks that the cash was intended for Shari's cat. Third, with Shari by her side, Faveluke withdrew $3, 400 in cash and took out a $952 cashier's check for Faveluke's insurance bill, for a total of $4 352.^[4] Finally, while Shari was waiting out in a car, Faveluke requested $5, 000 in cash and told Loucks that the cash was intended for Shari's cat. Loucks, who was growing suspicious, convinced Faveluke to take a $5, 000 cashier's check instead of cash, and wait one day before cashing it. But as soon as Faveluke returned to Shari with the cashier's check, Shari and Faveluke drove to another bank, where Faveluke cashed the check and gave Shari the $5, 000.

The veterinarians who treated Shari's cat testified at trial that they accepted credit cards as well as cash, and that Shari spent only approximately $2, 100 in veterinarian bills. Shari admitted to Detective Plaza that "[Faveluke] probably believed the money was going towards the vet bills, " but that Shari spent Faveluke's money on, among other things, $2, 000 for the Brentins' business office lease and $2, 900 in rent. VRP at 613. Shari also told Detective Plaza that she had tried to return the money to Faveluke but that Faveluke refused and said she could keep it.

B. Police Investigation and Charges

Loucks tried to contact the police, adult protective services, and her bank's fraud department about Faveluke's withdrawals. Detective Plaza then began an investigation, which included taking a written statement from Faveluke in December of 2011. Faveluke dictated the statement to Detective Plaza, who wrote it down. Faveluke signed the bottom of each page of the statement. The statement included the following:

After falling down my stairs, [Anthony] and Shari started coming over every day to help me. . . . Shari and [Anthony] would help around the house and help me shower, make sure I ate, etcetera.

On October 12^th, 2011, [Anthony] was at my house and . . . said that campaign signs cost money. Shari then said if we had money, they would buy nice signs, too. After we talked for a while, I decided to help [Anthony] by donating to his campaign. I wrote [Anthony] a check, Check Number 1389, for $5, 000 but kept $100.00 for myself, so I gave [Anthony] $4, 900. This money was to be used solely for his campaign and nothing else. He was supposed to buy signs, flyers, posters, etcetera. I later found out he did not use my money for any of that.

On November 16^th, 2011, Shari stopped by my house and she was crying. She told me her cat had cancer and it was dying. She said the vet could save the cat, but it would cost $1, 000.00. She told me the vet would only take cash. ... I gave Shari the money. I was told the entire amount was for the vet bill.

On November 29^th, 2011, Shari came by my house again. She said her cat needed more surgery or her cat would die. She told me again that her vet only took cash. She drove me to the bank and I withdrew $4, 352 in cash. I gave her the money, believing that the entire amount was to be used to pay the vet.

On December 7^th, 2011, Shari came to my house again. She said the cat needed more work done. At one point, she was on the telephone with who she said was the vet office. After she hung up, she told me the vet said either she paid them $5, 000 in cash or they would put her cat to sleep----I agreed to give her the money. She took me to the bank and I tried to withdraw the cash but was told the bank did not have it. I got a cashier's check instead. The bank lady asked me to wait one day before I cashed it, and I said okay. When we got to my car, Shari said we should look for a bank to cash the check at. We went to a bunch of banks before we found one that would cash it. After I gave her the money, she told me not to tell [Anthony] about it. She said [Anthony] would not agree with her spending $5, 000 on a cat. I promised not to tell. I gave her the money thinking it would all be used on an operation for Shari's cat.

VRP at 587-89. The State charged Anthony and Shari, as principles and accomplices of one another, with first degree theft for stealing Faveluke's money by color or aid of deception. The State alleged a common scheme or plan. The State charged aggravating factors against both Anthony and Shari for committing the offense against a particularly vulnerable victim, and for committing a major economic offense.

C. Continuances

The Brentins were tried jointly. The State requested, and the trial court granted, three uncontested continuances of the trial. The third of these uncontested continuances was because Loucks was unavailable to testify due to illness. After these three continuances, trial was scheduled for December 3, 2012 with a commencement date^[5] of October 25, 2012.

On November 29, 2012, the State requested another continuance, due to Loucks's continued unavailability to testify. The State's affidavit explained:

I have been previously contacted in October by Frank Najar, corporate security and legal liaison for U.S. Bank. Mr. Najar informed me that [Loucks] had been diagnosed with a serious medical condition that required immediate medical care, including surgery. Mr. Najar informed me that this surgery would incapacitate her and render her unavailable for trial. Due to this, the case was previously postponed.

I was recontacted by Mr. Najar on November 16^th. He informed me that [Loucks] was required to undergo further surgery on November 30^th, and would therefore be medically unable to work or appear in court for some time thereafter. He indicated that the prognosis is that [Loucks] would recover and be able to testify approximately 1 month after her surgery.

Clerk's Papers (CP) (Anthony) at 80.

The Brentins orally objected to continuing the trial, but did not argue that the continuance caused them prejudice. The trial court found good cause for a continuance and granted the State's motion, continuing the trial until January 7, 2013.

On January 3, the State requested another continuance due to Loucks's continued unavailability. The State's affidavit restated the facts in its previous request and added the following:

I spoke with Mr. Najar again on December 26^th and 28^th to obtain updated information on [Loucks]'s status. He related that her recovery is taking more time than initially expected, and that she is currently still occupied with an

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