State v. Cuthbert

• Decision Date: 02 February 2010
• Docket Number: No. 37542-7-II.,37542-7-II.
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Ronald James CUTHBERT, Appellant.

225 P.3d 407

154 Wn. App. 318

STATE of Washington, Respondent, v. Ronald James CUTHBERT, Appellant.

No. 37542-7-II.

Court of Appeals of Washington, Division 2.

February 2, 2010.

Michael C. Kinnie, Attorney at Law, Vancouver, WA, for Respondent.

Lisa Elizabeth Tabbut, Attorney at Law, Longview, WA, for Appellant.

VAN DEREN, C.J.

¶ 1 Ronald James Cuthbert appeals sixteen first degree theft convictions and one second degree theft conviction,¹ arguing that the trial court abused its discretion in refusing to (1) authorize public funds for a forensic accountant, violating his right to due process and effective counsel; (2) admit defense testimony about the care his disabled son needs; (3) admit a superior court order entitling him to deposit a check from the Confederated Tribes of the Grand Ronde (Grand Ronde); and (4) instruct the jury on his good faith claim of title defense. He also claims that the evidence was not sufficient to support three of his first degree theft convictions and that cumulative error deprived him of a fair trial. We reverse count two (first degree theft) for failure to admit defense evidence relevant to one Grand Ronde check and remand for further proceedings. We affirm Cuthbert's² convictions on the remaining counts.

FACTS

I. Background

¶ 2 Ryan has lived with severe physical and mental disabilities since birth. Because he cannot care for himself, Ronald and Deborah³ have provided him full time care at their Vancouver, Washington home.

¶ 3 In 1983, after the Cuthberts settled a medical malpractice lawsuit relating to Ryan's injuries, the superior court appointed Ronald as guardian of Ryan's person and estate. In addition to monthly malpractice settlement checks, Ryan received disbursements as an enrolled member of the of the Grand Ronde tribe. The order amending order appointing guardian stated the following:

[A]ny cash money which may be received by the minor shall be placed in an interest bearing account at a bank or savings and loan of the Guardian's choice. The Guardian may make such disbursements from said monies as may be required to provide for the medical and physical needs of the minor.

Exhibit (Ex.) 3, at 1. The guardianship order also obligated Ronald to file an accounting with the superior court every three years. When Ryan turned 18, the superior court continued Ryan's guardianship, due to his permanent incapacity, under the terms of the established guardianship.

II. Guardianship Accounting

¶ 4 Until 1994, when Ryan turned 21, Ronald carefully adhered to the guardianship accounting requirement. But after that time, Ronald felt that the guardianship should pay for what he believed was the true cost of Ryan's full time care. RP at 647-48. Ronald began taking larger reimbursements from the guardianship funds in amounts he considered equal to Ryan's share of the family's monthly food and housing costs.⁴ In addition, Ronald began paying himself $2,500 each month as compensation for providing Ryan's care.

¶ 5 Ronald deposited some of Ryan's monthly malpractice settlement checks directly into his and his wife's personal bank account. At other times, he transferred funds from the guardianship account to their personal account. Although Ronald continued to file the three year guardianship accountings with the superior court, he did not disclose the full amount of money that he allocated to himself or his community.

¶ 6 During his time as Ryan's guardian, Ronald started an antique business, purchased a Laundromat, and bought rental houses in the towns of Tillamook and Camas. Based on his supposition that Ryan would use one-half of the space, Ronald also built a second story on his home, using $30,000 of guardianship funds to pay for one-half of the addition so they would have "sufficient room to live comfortably." Report of Proceedings (RP) at 651-52. He did not report this use of the guardianship funds to the superior court; nor did he obtain its consent for the expenditure.

¶ 7 In 1999, Ronald retired from his job as a sales tax auditor for the Washington Department of Revenue. Then, beginning in 2001, when the next accounting was due, Ronald elected not to file the required three year guardianship accountings.

¶ 8 In 2002, Clark County's guardianship monitoring program discovered that the required 2001 accounting for Ryan's guardianship had not been filed. The monitoring program's manager sent Ronald notice that he had missed the filing deadline. The superior court issued a show cause order compelling Ronald to file the accounting or appear in court. The court also appointed a guardian ad litem to investigate Ryan's welfare and the guardianship estate's status.

¶ 9 In June 2004, based on the guardian ad litem's investigation and report, the superior court removed Ronald as guardian of Ryan's estate. The court ordered the guardianship firm of Beagle Burke & Associates (BBA) to investigate and to do an accounting of the estate. The Vancouver Police Department also began an investigation of Ronald's use of guardianship funds. On December 30, 2004, after the superior court removed Ronald as Ryan's guardian in June, Ronald deposited Ryan's Grand Ronde check for $5,770 in his personal checking account.

¶ 10 The State charged Ronald with 16 counts of first degree theft (counts 1-12, 14-17) and 1 count of second degree theft (count 13). The State filed a bill of particulars clarifying that the charges were divided into three general categories. The first was limited to count one, wherein the State alleged that, between February 1, 1994, and June 4, 2004, Ronald used a common scheme or plan to deprive Ryan's estate of funds in excess of $200,000. Under the second category— counts 2, 8, and 13—the State alleged that Ronald deposited Ryan's Grand Ronde checks into Ronald's personal account. In the final category—counts 3-7, 9-12, and 14-17—the State alleged that Ronald deposited Ryan's medical malpractice settlement checks into Ronald's personal account. The State also alleged at least one of the following aggravating circumstances for each count: (1) the victim was "particularly vulnerable or incapable of resistance"; (2) Ronald used his "position of trust, confidence, or fiduciary responsibility to facilitate" the crime; and (3) the crime involved a "major economic offense." Clerk's Papers (CP) at 220-28.

III. Trial

¶ 11 Before trial, Ronald's assigned counsel asked the trial court to authorize public funds for a forensic accountant to review financial records and to assist in preparing his defense.⁵ The trial court ruled that an accountant was unnecessary but offered to appoint an investigator, which counsel refused.

¶ 12 At trial, Jeff Nichols, formerly of the Vancouver Police Department, testified that he had interviewed Ronald after receiving a complaint that Ronald was misusing guardianship funds. According to Nichols, Ronald did not feel that he needed the trial court's permission to determine how he spent Ryan's guardianship money because it involved his family's affairs. Ronald said that, although he previously submitted requests to the superior court to spend money on his son, he "just had stopped doing that" and decided himself what expenditures were appropriate. RP at 492. Gary Beagle, principal of BBA, also testified that his firm conducted a forensic accounting of Ryan's guardianship account and Ronald's personal and business accounts, based on all the available financial records.

¶ 13 The trial court granted the State's motion in limine to exclude testimony by Niki Tucker, a social worker who had prepared a report detailing the care that Ryan required in 2006 and estimating its cost. The trial court also refused to admit a superior court order that the defense argued authorized Ronald to deposit one of Ryan's Grand Ronde checks into Ronald's personal account.

¶ 14 Ronald testified that he purchased his businesses and rental houses without using guardianship funds because he used money he had earned by providing services to Ryan or the guardianship. He admitted that he did not seek the trial court's permission to charge Ryan for room and board, "I did not want the court involved in my household. I know what it's like when the petty bureaucrats start to micro-manage a family. It just doesn't work well." RP at 650. But he said that he only spent guardianship funds "[t]o reimburse [himself and his wife] for the actual cost of raising [Ryan] plus the costs that are for the work of actually taking care of him." RP at 650-51. Ronald concluded, "When it all works out in the wash, we took a very reasonable amount." RP at 654.

¶ 15 Defense counsel unsuccessfully proposed a "good faith claim of title" jury instruction in order to argue a statutory defense to theft. RP at 773. The jury convicted Ronald as charged and returned verdicts finding all of the aggravating factors.

¶ 16 Ronald appeals.

ANALYSIS

I. Appointment of Expert Forensic Accountant at Public Expense

¶ 17 Ronald first argues that the trial court abused its discretion by refusing, under CrR 3.1(f),⁶ to authorize public funds for a forensic accountant, thus denying him due process and effective assistance of counsel. The State contends that, under the facts of this case, such an expert was unnecessary and that the trial court properly offered to authorize money for a defense investigator. We agree with the State.

A. Standard of Review

¶ 18 "Whether expert services are necessary for an indigent defendant's adequate defense is within the discretion of the trial court and its decision will not be overturned absent an abuse of discretion." State v. French, 157 Wash.2d 593, 607, 141 P.3d 54 (2006). A trial court abuses its discretion when its ruling is manifestly unreasonable or based on untenable grounds. State v. Mee Hui Kim, 134 Wash.App. 27, 41-42, 139 P.3d 354 (2006).

B. Pretrial Hearings

¶ 19 Ronald's counsel asked for the appointment of a forensic accountant to assist in reviewing the...