State v. Roth
| Decision Date | 26 September 1994 |
| Docket Number | No. 31067-4-I,31067-4-I |
| Citation | 881 P.2d 268,75 Wn.App. 808 |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Respondent, v. Randolph G. ROTH, Appellant. |
George C Marilyn B. Brenneman, King County Pros. Atty., Seattle, Susan K. Storey, Fraud Div., Seattle, for respondent.
Cody, Cody, Hatch & Blanchard, Inc. P.S., Lynnwood, Jeffrey C. Grant, Seattle, for appellant.
Randolph Roth appeals his convictions on one count of first degree murder, one count of first degree theft, and one count of second degree theft. He contends the trial court erred in several respects: (1) admitting evidence concerning the death of Roth's second wife; (2) denying his motion for a continuance so that his lead counsel could be present for jury voir dire; (3) denying his motion for a continuance sought to procure expert rebuttal testimony; (4) denying his motion to sever the theft counts from the murder count; (5) admitting testimony concerning Roth's harsh discipline of his stepsons; (6) admitting a handwritten note by the victim; and (7) imposing an exceptional sentence. We affirm both the conviction and sentence.
On July 23, 1991, Cynthia Baumgartner Roth drowned in Lake Sammamish during an outing on an inflatable raft with her husband, Randy Roth. At the time of Cynthia's death, Roth was the beneficiary of $385,000 in insurance on Cynthia's life. Cynthia, a 34-year-old mother of two, was Roth's fourth wife. Roth's second wife, Janis, died in 1981 when she fell from a cliff while hiking with Roth. Roth, who was the beneficiary of a $100,000 insurance policy on Janis' life, said that she had slipped and fallen off the trail.
The King County Police Department's investigation concerning the circumstances of Cynthia's death included several interviews with Roth. According to Roth, Cynthia developed a leg cramp while swimming. While Roth was preparing to steady the raft so that Cynthia could climb in, a boat went by and its wake turned the raft over on top of her. He then heard her cough, "as if she unexpectedly got water in her mouth"; after about 30 seconds he righted the raft. At that point, Cynthia was lying face down in the water. Roth then "breathed into her a couple times," but there was no response. Roth re-entered the raft, and pulled her into it. Discovering that Cynthia had no pulse, he rowed back to shore; the trip took approximately 20 minutes. Roth did not attempt to summon aid from other boats on the water, nor did he alert anyone on the shore as he approached. When Cynthia's sons came to the raft, he told them to get a lifeguard but not to create a fuss. A lifeguard and a paramedic unsuccessfully attempted to revive Cynthia Roth. During the resuscitation attempt and afterwards, Roth was seen calmly collecting the family's beach gear and loading it in the car.
The police investigation revealed discrepancies in Roth's account. Using Roth's raft, investigators conducted and videotaped attempts to reenact the events as described by Roth, which caused them to believe that Roth's account was implausible. The investigation led to the filing on October 10, 1991, of a 1-count information against Roth, charging murder in the first degree. A series of amendments to the information added two counts of theft. A count of theft in the first degree charged Roth with theft of insurance proceeds from his homeowner's insurer arising from an allegedly "staged" residential burglary. A count of second degree theft charged Roth with making a false claim for social security benefits on behalf of his son following the death of Cynthia Roth. 1 Roth entered pleas of not guilty to all charges.
Roth's trial commenced on March 10, 1992, and was submitted to the jury on April 22. The jury returned a verdict of guilty on all three counts. The court imposed an exceptional sentence of 600 months on the murder count.
Roth contends that the trial court erroneously admitted testimony relating to Roth's marriage to Janis Miranda Roth and the circumstances of her death, arguing that the evidence was inadmissible under ER 404(b).
Below, the State argued that the evidence was relevant for purposes other than to prove Roth's character, including proof of scheme or plan, proof of motive, proof of distinctive modus operandi, to rebut a claim of accident, and under the doctrine of chances. A summary of the evidence presented by the State is as follows.
In 1981, after a very short courtship, Roth married Janis Miranda, a single mother of an 8-year-old girl. A $100,000 life insurance policy on Janis Roth's life went into effect on November 7, 1981. On November 27, Janis Roth died from a 300-foot fall from Beacon Rock in Skamania County. Roth made numerous conflicting statements as to whose plan it was to visit Beacon Rock that day and about the circumstances of Janis' fall. Investigators found no physical evidence at the scene consistent with someone slipping or falling off the trail and did not believe that the scenario described by Roth was consistent with the location of the fall identified by Roth. There was evidence that the relationship was not going well and that Roth had made certain inferentially incriminating statements to a friend. Specifically, Tim Brocato testified that shortly before the incident Roth had asked whether Brocato could ever kill his wife. After the incident, when Brocato asked about what had happened, Roth stated that he didn't want to tell Brocato something he would have to lie about. Roth did not notify any close friends or relatives of Janis' death, and acted as if nothing had happened after Janis died. The morning after she died, a Saturday, Roth called the insurance agent who sold the policy on Janis Roth's life to discuss receipt of the proceeds. The agent advised Roth that he would have to wait until Monday morning. Within days of the death, Janis Roth's daughter was returned to her natural father in Texas; she received no portion of the insurance proceeds, and Roth applied for and collected the daughter's social security benefits for several months.
In 1985, Roth married Donna Clift, a single mother of one girl, after a 3-month courtship that Clift described as "extremely intense." Shortly before the marriage, Roth suggested Clift obtain a large life insurance policy. Roth also convinced Clift to make him the beneficiary of a policy she already held, instead of her daughter. Clift separated from Roth after 3 months because she was scared of him.
In 1986, Roth began a relationship with Mary Jo Phillips, a single mother of six. Shortly after they met, Phillips moved in with Roth, and they discussed marriage. Roth suggested that Phillips would need some life insurance, but she advised him that she was uninsurable because she had been diagnosed with cancer. Shortly thereafter, Roth became increasingly cold toward her, and she moved out.
The State compared these circumstances to the circumstances of Roth's relationship with Cynthia Baumgartner, and to the events surrounding her death. The State pointed out that Cynthia, a single mother, married Roth in 1990 after a very short courtship. Shortly after the marriage, a large insurance policy was obtained on Cynthia's life, naming Roth as beneficiary. At Roth's behest, and against the advice of her insurance agent, Cynthia changed the beneficiary of an existing life insurance policy from her sons to Roth. As with Janis Miranda, Roth claimed the insurance was obtained to cover the home mortgage, even though both women were homemakers and Roth was the primary wage earner. Shortly before Cynthia's death, which occurred within a year of the marriage, Roth expressed unhappiness with the relationship. The death occurred in a recreational area, but the defendant was the only witness nearby. Afterwards, Roth made inconsistent statements about the events surrounding the death. Many witnesses observed Roth to be unemotional after the incident, and he did not inform relatives and friends of Cynthia's death. Roth quickly filed an insurance claim, and submitted a falsified claim for social security benefits on behalf of his son by a prior marriage, Greg Roth.
Based on this series of relationships, together with several incidents of other alleged fraudulent insurance claims, the State claimed that evidence of Janis Roth's death was "critical to the state's theory that the defendant in fact was engaging in acts to defraud insurance companies, it was a common motive ... that led to the murder of Cynthia Roth."
The trial court ruled that the Janis Roth evidence
is highly relevant. I can't see any other solution to it.
... [T]he similarities between the acts themselves and the circumstances surrounding them, what went before and what went afterwards, and the relationship of the parties involved, all are strikingly similar in both Janis and Cynthia's events.
... [I]t is clear the Janis Roth events would certainly tend to make the later one more probable, which is the test for relevance.
I also think that the evidence, particularly regarding the similarity between the two events, is sufficient to be relevant to the issue of accident. And I have to agree with the state that defendant's position regarding Cynthia's death has to be accident.
. . . . .
They're also clearly relevant to motive, which the state is entitled to prove and which is really at the essence of their theory of the case.
... I think [State v. Fernandez, 28 Wash.App. 944, 628 P.2d 818, 640 P.2d 731, review denied, 94 Wash.2d 1026 (1980) ] is strikingly on point.
I will for those reasons permit the Janice [sic ] Roth testimony to be utilized.
... I am ... convinced that its necessity for the state's case outweighs the prejudice it will engender.
The court's written findings reiterated "the state's theory that the current charges against the defendant are part of a larger scheme by the defendant to profit from insurance frauds," which...
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