State v. Phillips

• Decision Date: 08 February 2011
• Docket Number: Nos. 38646–1–II,39253–4–II.
• Citation: State v. Phillips, 160 Wash.App. 36, 246 P.3d 589 (Wash. App. 2011)
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent,v.Kimberly Ann PHILLIPS, Appellant.

160 Wash.App. 36

246 P.3d 589

STATE of Washington, Respondent,

v.Kimberly Ann PHILLIPS, Appellant.

Nos. 38646–1–II

39253–4–II.

Court of Appeals of Washington, Division 2.

Feb. 8, 2011.

Sheri Lynn Arnold, Attorney at Law, Tacoma, WA, for Appellant.Kimberley Ann Demarco, Pierce County Prosecutor's Office, Tacoma, WA, for Respondent.

PART PUBLISHED OPINION

WORSWICK, A.C.J.

[160 Wash.App. 38] ¶ 1Kimberly Phillips was convicted of eight counts of first degree theft.Phillips appeals, arguing (1)the trial court's ruling on her prior convictions was an abuse of discretion and denied her the right to present a defense, (2) a photograph of one of the elderly victims was irrelevant and prejudicial, (3) one of the witnesses who testified against her was incompetent, (4) insufficient evidence supports her convictions and exceptional sentences, (5)the trial court erred by not giving her proposed instructions, and (6)the trial court erred in arriving at the restitution amount.In a statement of additional grounds (SAG),¹she raises six additional issues.Finding no error, we affirm.

FACTS

¶ 2 A jury convicted Phillips of eight counts of first degree theft against five elderly victims, all occurring between March and September 2007.These victims were between 79 and 93 years old at the time of the trial.

I. Marie Adams

¶ 3 The first victim, Marie Adams, was 84 years old at the time of trial in October 2008.For more than 20 years, she had been unable to walk and had been on oxygen.Adams, who lived alone, put an ad in the paper seeking a part-time caretaker.Phillips responded to the ad.When Phillips met Adams to discuss the caretaker position, Phillips told Adams that Phillips needed money before an escrow company would release a $67,000 check being held for her.She promised Adams a bonus if Adams lent her the money she needed.Adams agreed to go with Phillips to an escrow office, but she wanted to verify the escrow before lending Phillips the money.

¶ 4 Phillips drove Adams's car because Adams no longer had a driver's license and Adams's car could accommodate her mobility scooter.Phillips took Adams to a Washington Mutual Bank to withdraw $5,000, but Adams insisted on holding the money until she could verify the escrow.Phillips then drove Adams to a building that supposedly housed the escrow company, but she told Adams that she could not come inside because it was not wheelchair accessible.Adams refused to hand over the money and asked Phillips to take her home; she could not leave by herself because she could not reach her mobility scooter.Phillips insisted that Adams hand over the money and Adams refused for several hours, until Phillips finally struggled with Adams and took the money.Phillips then drove Adams home, promising to repay the money, but she never did so.

II.Audrey Seitz

¶ 5 The second victim, Audrey Seitz, was 79 years old at the time of trial.Seitz had Alzheimer's and dementia and had no memory of the five years prior to trial.Seitz required 24–hour care, and her niece, Luanne Larson, hired Phillips as one of Seitz's caretakers.Larson left town for the Fourth of July weekend, leaving Seitz with Phillips.Larson returned to find that Phillips had left her caretaker position.Larson also discovered the bank had “flagged” Seitz's checking account based on withdrawal activity.Larson learned that over the Fourth of July weekend there had been a bank withdrawal for $2,500 and a check for $4,783.20 cashed at a Money Tree check cashing location.Larson identified Phillips in a bank surveillance photograph that showed Phillips and Seitz at the bank on the day that the $2,500 was withdrawn.Evidence at trial also established that Phillips had escorted Seitz to the Money Tree and had persuaded her to cash the check.

III.Corinne Gunderson

¶ 6 The third victim, Corinne Gunderson, was 88 years old at the time of trial.Gunderson lived alone, but her son helped her around the house and monitored her finances.When Gunderson was walking home from the grocery store, Phillips approached and offered Gunderson a ride home.Phillips told Gunderson that employees at Gunderson's bank branch were stealing and that Phillips needed $7,500 to catch them.Gunderson agreed to give Phillips the money, and the two drove to a different branch where Gunderson withdrew $7,500, which Phillips pocketed.Phillips took Gunderson home and said that she would catch the thieving employees and then return the money.Phillips never repaid the money.

IV.Joy Ostrander

¶ 7 The fourth victim, Joy Ostrander, was nearly 93 years old at the time of trial.Ostrander's neighbors saw Phillips and her vehicle at Ostrander's house several times.One neighbor saw Phillips take Ostrander to Phillips's car and also saw Phillips arrive at Ostrander's house with two young girls.The neighbors also saw Phillips put on nurse's scrubs before entering Ostrander's house.Nobody had hired a nurse to care for Ostrander.Phillips's theft came to light when Ostrander called his 72–year–old girlfriend, Anne Lizotte, telling her that something bad had happened.When Lizotte arrived, Ostrander had $100 and said that a woman got a bunch of money and left him with just the $100.Ostrander told Lizotte that the woman had driven him to the bank and withdrawn money.Ostrander could not describe the woman specifically and did not know her name.Ostrander could not remember who took his money, or when she took it, or how much she took.

[160 Wash.App. 41] ¶ 8 Ostrander's daughter, Karen Anderson, testified that Ostrander “usually” kept between $2,000 and $4,000 in a black case hidden in the basement of his house.4 Verbatim Report of Proceedings (VRP)at 521.Anderson would count the money for Ostrander at least every other month.After Lizotte reported the incident to Anderson, Anderson found that Ostrander's black case had been rifled through and only $300 remained.Anderson did not report the theft immediately because Ostrander had misplaced his money in the past.But several weeks after finding that money was apparently missing from the case, Anderson discovered that $5,500 had been withdrawn from Ostrander's bank account, and she notified the police.A bank surveillance photograph showed Ostrander at the bank with a woman on the date of the withdrawal, and the combined testimony at trial demonstrated that this woman was Phillips.

V. Robert Hokenson

¶ 9 The fifth victim, Robert Hokenson, was 86 years old at the time of trial.He had a valid driver's license and was able to drive, although he suffered from memory problems due to a stroke.Hokenson's family helped with his finances, and would call almost daily and visit about once a week to ensure his well-being.When Hokenson was working outside, Phillips approached and asked him for $400, explaining that she needed to get her car out of impound and that her purse was locked inside.Hokenson agreed to help and Phillips followed Hokenson inside his house, taking an envelope with $1,200 in it from Hokenson's top dresser drawer.Hokenson's wife Virginia had found the envelope earlier that day and counted it, placing it in the dresser.²

¶ 10 After Phillips left, Virginia found that an envelope with $700 inside was also missing from his desk.Hokenson testified that were also five to six other envelopes in his dresser, each containing $300 to $400, and Virginia testified that none of them were in the dresser after Phillips left.After leaving his home, Hokenson drove to the bank with Phillips, with Hokenson driving part of the way.Hokenson withdrew $3,800 at the bank and Phillips took the money.³Phillips never returned Hokenson's money.

VI.Charges, Motions and Trial

¶ 11 On October 17, 2007, the State charged Phillips with eight counts of theft in the first degree—one count for stealing $5,000 from Adams (count I), two counts for stealing $4,783 and $2,500 from Seitz (counts II and III), one count for stealing $7,500 from Gunderson (Count IV), two counts for stealing approximately $2,000 from Ostrander's home and $5,500 from his bank account (counts V and VI), and two counts for stealing $3,300 from Hokenson's home and $3,080 from his bank account (counts VII and VIII).For each count, the State charged the aggravating factor that the defendant knew or should have known that the victim was particularly vulnerable or incapable of resistance.The State also charged the aggravating factor of abuse of a position of trust for the thefts from Seitz (counts II and III).

¶ 12 Before trial, the State filed an ER404(b) motion to admit evidence of Phillips's past forgery and theft crimes against elderly and vulnerable victims in the 1980s.The State sought to admit evidence of Phillips's past convictions and a summary of the facts underlying each one.The trial court found the prior convictions admissible to show a common scheme or plan.During motions in limine, the trial court amended this ruling, ruling that the convictions would not be admissible unless Phillips testified that the victims consented to lend her money.The trial court ruled that if Phillips testified, the convictions would be admissible to impeach her, but if she did not testify, the convictions would be excluded.

[160 Wash.App. 43] ¶ 13 At trial, in response to defense counsel's request for clarification, the trial court amended its order again, ruling that the prior convictions would be admissible not to impeach Phillips, but to rebut any material assertion by Phillips that the victims consented to lend her money.The trial court found that the prior convictions would be highly prejudicial and irrelevant unless Phillips first testified and made such a material assertion.The trial court ruled that the evidence would come in under ER404(b), even though it was “sort of a hybrid” between ER404(b) and ER 609. 5 RPat 670.The trial court ruled that the facts underlying the convictions that Phillips had pleaded guilty to (including the...