State v. Miller
| Decision Date | 01 September 2020 |
| Docket Number | No. 37351-7-III,37351-7-III |
| Citation | 14 Wash.App.2d 469,471 P.3d 927 |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Respondent, v. Mark Allan MILLER, Appellant. |
Oliver Ross Davis, Gregory Charles Link, Washington Appellate Project, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-1683, for Appellant.
Aaron Bartlett, Attorney at Law, 1013 Franklin St., Vancouver, WA, 98660-3039, for Respondent.
OPINION PUBLISHED IN PART
Siddoway, J. ¶ 1 Mark Miller, a former financial advisor, appeals his convictions following a jury trial for first degree theft, first degree criminal impersonation, and attempted first degree theft. The victim was an almost 87-year-old woman who was a client of Mr. Miller's prior to his June 2016 resignation from J.P. MorganChase (Chase). After he resigned, he guided or assisted his elderly former client in withdrawing substantial financial assets, some, but not all of which, he succeeded in misappropriating.
¶ 2 He assigns error to an accomplice liability instruction given over his objection, challenges the sufficiency of the evidence to support the criminal impersonation and attempted theft counts, challenges the criminal impersonation conviction on double jeopardy grounds, and points out a scrivener's error in the judgment and sentence. We remand with directions to correct the scrivener's error but otherwise affirm.
FACTS AND PROCEDURAL BACKGROUND
¶ 3 Lillian Meador was living in the Brookdale Orchards assisted living facility in Vancouver in the summer of 2016 when she suffered an infection and was hospitalized. She was discharged for recovery in early August to Prestige Care, a nursing and rehabilitation center, where her initial assessment and care plan were assigned to Stephanie Williams, a social services director. Mark Miller, who Ms. Williams learned was Ms. Meador's financial advisor and friend, was identified as her emergency contact. Ms. Williams phoned Mr. Miller on August 15 because she wanted to set up a care conference and determine whether someone held a power of attorney for Ms. Meador.
¶ 4 Mr. Miller told Ms. Williams that someone did hold a power of attorney, but since that person had not been involved for many years, steps were being taken to appoint Mr. Miller as Ms. Meador's attorney-in-fact. In a conversation with Mr. Miller in Ms. Meador's room two days later, Ms. Williams again asked for the name of the existing attorney-in-fact, explaining that because Ms. Meador performed poorly on a cognitive test, Prestige needed to find someone who could assist with planning for her discharge. Mr. Miller became upset, telling Ms. Williams that he needed to be present for any cognitive testing of Ms. Meador, to make sure that the questioning was done appropriately. He provided Ms. Williams with a name of the existing attorney-in-fact but did not provide contact information, telling Ms. Williams that he would contact the woman himself. Concerned that Ms. Meador might be being exploited by Mr. Miller, Ms. Williams filed a report that day with Adult Protective Services (APS).
¶ 5 On August 23, while at a visit at Prestige, Mr. Miller told Ms. Williams that his role as Ms. Meador's financial advisor prevented him from becoming her attorney-in-fact, but he would obtain and provide a copy of her existing power of attorney. He never did. Lacking an attorney-in-fact who could make decisions for Ms. Meador, personnel at Prestige initiated a guardianship proceeding.
¶ 6 In late August, Max Horn, an APS investigator, met with Ms. Meador. Ms. Meador struck Mr. Horn as confused and uncomfortable about answering Mr. Horn's questions about Mr. Miller, saying she "had to speak with Mark first." Report of Proceedings (RP) at 567. She did provide Mr. Horn with Mr. Miller's cell phone number at some point, however, and Mr. Horn phoned Mr. Miller on September 6. Mr. Horn's purpose for calling Mr. Miller was to find out where Ms. Meador banked, and Mr. Miller said he did not recall, other than that she had some funds at Chase. Mr. Miller agreed during the phone conversation to call Mr. Horn back with a phone number for the woman who held Ms. Meador's power of attorney, but he never did.
¶ 7 On the afternoon of September 8, Vancouver lawyer James David received a call from Mr. Miller. Mr. Miller was with Ms. Meador, who participated in the call. Mr. Miller explained that Ms. Meador was seeking legal representation to fight the guardianship proceeding commenced by Prestige. Mr. David traveled to meet with Ms. Meador at Prestige the next day, and spoke with her without Mr. Miller present. She engaged him as counsel.
¶ 8 In Mr. David's second or third meeting with Ms. Meador, which took place at Brookdale following her September 12 discharge from Prestige, they opened her mail, which included two substantial checks from the Standard Insurance Company ("the Standard"), where she had held annuities. Previously, during Ms. Meador's stay at Prestige, Mr. Miller had been stopping at Brookdale to pick up her mail. Mr. David had Ms. Meador endorse the $240,000 in value of checks for deposit and arranged for them to be deposited into her bank account.
¶ 9 Mr. David attempted to meet with Mr. Miller twice, because he had questions about Ms. Meador's financial affairs, but Mr. Miller missed both appointments. Mr. Miller, who had visited Ms. Meador 18 times and called her room 36 times during the six weeks she was at Prestige, also stopped visiting Ms. Meador.
¶ 10 The investigation by APS led it to refer Ms. Meador's situation to the Vancouver Police Department. An investigation by Detective Michael Day led him to information that in August, Mr. Miller persuaded Ms. Meador to withdraw $50,000 in cash from her bank accounts with Chase and give it to Eddie Besaw, a former colleague of Mr. Miller's. Ms. Meador was led to understand that Mr. Miller was going to invest the $50,000 on her behalf. Ms. Meador, who used a wheelchair, was able to travel by C-VAN1 to a Fred Meyer store with an in-store Chase location suggested to her by Mr. Miller, but on arriving, she needed someone to push her to the bank and, following the withdrawal, take and deliver the $50,000 cash. Mr. Besaw told Detective Day that Mr. Miller engaged him to assist Ms. Meador at the bank and deliver the cash to Mr. Miller, who said he would invest it on her behalf. Mr. Besaw delivered $45,000 of the cash to Mr. Miller, reduced by $5,000 that Mr. Miller had allowed Mr. Besaw to keep for his trouble.
¶ 11 The detective also received information that the large checks from the Standard that Ms. Meador received in September at Brookdale were the result of a cash-out process that had been initiated by Mr. Miller. Mr. Miller had called the Standard and requested withdrawal documentation, holding himself out as Ms. Meador's nephew. His call had been recorded. The completed forms, signed by Ms. Meador but apparently completed by someone else, had been returned to Standard on September 6.
¶ 12 Detective Day also learned that Mr. Miller was unemployed, having resigned from Chase a couple of months earlier, and was in financial distress.
¶ 13 Mr. Miller was charged with first degree theft of the $50,000 withdrawn from Ms. Meador's bank accounts, criminal impersonation for the call to the Standard, and attempted first degree theft for the steps taken to cash out the Standard annuities. The State alleged three aggravating circumstances for the theft and attempted theft counts: that the victim was particularly vulnerable or incapable of resistance, Mr. Miller used his position of trust, confidence, or fiduciary responsibility to commit the crimes, and the crimes were major economic offenses.
¶ 14 In August 2018, the case proceeded to a jury trial. In opening statements, the State described Mr. Miller as someone financially underwater, who charmed Ms. Meador into allowing him to assist with her finances after he left Chase. It characterized Mr. Besaw as "a fall guy" Mr. Miller engaged to help Ms. Meador make the $50,000 cash withdrawal and deliver the cash to him. RP at 256. The prosecutor suggested that after Mr. Miller succeeded in causing Ms. Meador to withdraw the $50,000, he took steps to obtain the even more substantial value of her annuities, falsely telling the Standard's customer service representative that he was Ms. Meador's nephew and that the funds were needed to pay her mounting medical expenses. "Fortunately," the prosecutor told jurors, "someone intercepts those disbursement checks before they get to Mark Miller." RP at 260.
¶ 15 Defense counsel responded, telling jurors in opening statement that it was Mr. Miller who was the fall guy for Mr. Besaw's theft of $50,000 cash from Ms. Meador. Defense counsel described Mr. Besaw as a person "who's kind of gone from career to career trying to make something of himself." RP at 266. He said that Mr. Miller had a referral relationship with Mr. Besaw, who sold supplemental Medicare policies and annuities, but the relationship soured after clients referred by Mr. Miller were unhappy with Mr. Besaw's services. He told jurors that before the referral relationship ended, Mr. Miller had provided Mr. Besaw with Ms. Meador's name and phone number. He told jurors "there's no question that Eddie Besaw is the one who took $50,000 cash from Lillian Meador." RP at 270. As for the annuities, defense counsel told jurors that Mr. Miller simply helped Ms. Meador surrender her annuities because she wanted to make other investments, and there was no theft: "The money comes in, goes right into her bank, done deal." Id .
¶ 16 The jury was instructed on accomplice liability over Mr. Miller's objection. The State requested the instruction at the close of the evidence, and defense counsel argued that the State had not charged Mr. Miller as an accomplice and "[t]hat's a different kind of case." RP at 1269. He also argued:
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