State v. Thompson
| Decision Date | 23 November 2009 |
| Docket Number | No. 62048-7-I.,No. 61998-5-I.,61998-5-I.,62048-7-I. |
| Citation | 223 P.3d 1165,153 Wash.App. 325 |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Respondent, v. Judith E. THOMPSON, Appellant. State of Washington, Respondent, v. James L. Thompson, Appellant. |
John Christopher Carver, Christopher Anderson, King County Prosecutor's Office, Seattle, WA, for Respondent.
Oliver Ross Davis, Washington Appellate Project, Seattle, WA, for Appellant, James L. Thompson.
Christopher Gibson, Nielsen Broman & Koch PLLC, Ellen Leslie Arbetter, Attorney at Law, Seattle, WA, for Appellant, Judith E. Thompson.
¶ 1 Appellants James and Judith Thompson exploited their relationship with Shirley Crawford, a vulnerable older woman, by stealing virtually all of her money. After the Thompsons were under investigation and were anticipating a hearing on a petition to appoint a guardian for Crawford, they made a videotape of Crawford reading a declaration they had written for her. The declaration stated that she was aware of what they had done and approved of it. In this appeal, the Thompsons challenge the sufficiency of the evidence to support their convictions for witness tampering, and James Thompson appeals his theft conviction. We affirm the convictions. We also grant the State's cross appeal and hold that the court erred in not ordering appellants to pay the $100 DNA collection fee.
¶ 2 The court will uphold a conviction against a claim of insufficient evidence if, taking all evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Bencivenga, 137 Wash.2d 703, 706, 974 P.2d 832 (1999).
¶ 3 According to the evidence presented at trial by the State, Shirley Crawford had a fall in 2001 and had to go to the hospital. Crawford, a widow, was over 80 years old. At the time, she lived at home with her only child, Anne Crawford. Anne Crawford was born with severe mental retardation. Crawford had raised, lived with, and cared for Anne for nearly 50 years. As it became clear to Crawford that she would be going into a nursing home instead of returning home right away, she made arrangements for Anne to move in with Jill Campbell, a state caseworker who had worked with Anne when Anne was employed in a supported vocational setting.
¶ 4 In consultation with an attorney, Crawford decided that a power of attorney would be the best way to handle her financial affairs until she got back on her feet. She asked Judith Thompson to assume this role. Crawford had married one of Judith Thompson's relatives and the families had remained close. Crawford and Judith Thompson signed the power of attorney form in August 2001.
¶ 5 In October 2001, Judith Thompson asked Crawford's investment firm, Merrill Lynch, for $8,000 to cover Crawford's nursing home bill. Merrill Lynch approved this request. The check was deposited into Crawford's bank account, over which Judith Thompson had signatory authority.
¶ 6 In November, Judith returned to Merrill Lynch asking for a withdrawal of $9,000 as a gift to herself from Crawford. Merrill Lynch refused and informed her that the power of attorney form did not authorize such gifts. James Thompson made calls to Merrill Lynch, pressuring them to honor Judith's request for gifts.
¶ 7 Judith Thompson did not pay the nursing home bill. The bills began to accumulate. Andrea Fukumoto, a social worker at the nursing home, found Crawford to be confused and embarrassed by the unpaid bills. She helped Crawford contact Merrill Lynch to arrange for direct payments to the nursing home, totalling almost $30,000 during the early months of 2002. Fukumoto began to discuss the possibility of changing Crawford's power of attorney to someone else. Hearing of this, the Thompsons abruptly moved Crawford to a different nursing home. Fukumoto made a referral to Adult Protective Services concerning Judith Thompson's possible financial exploitation of Crawford. The Thompsons, through their attorney, told the investigator they were in the process of setting up special needs trusts for Shirley Crawford and her daughter, Anne. Although suspicious of the Thompsons, the investigator was unable to substantiate a claim against them.
¶ 8 Meanwhile, under pressure and threats from the Thompsons, Jill Campbell resigned as guardian for Anne Crawford. The Thompsons were appointed in her place. They moved Anne to an adult family home, the first time in her life she had ever been in an institutional placement.
¶ 9 In April 2002, Shirley Crawford's attorney went to visit her at the nursing home. After this visit, he received a voice mail from Judith Thompson instructing him not to speak with Crawford without Judith's permission. He sent a letter explaining that he worked for Crawford, not for her.
¶ 10 Four days later, without informing Crawford's attorney, the Thompsons brought Crawford into the office of a notary public and had her sign a second power of attorney form prepared by their own attorney. This new power of attorney added James Thompson as a second attorney-in-fact and included a provision entitling the Thompsons to "reasonable compensation" for their services under the power of attorney. It also authorized the making of gifts:
The Attorney in Fact shall have the power to make gifts, whether outright or in trust, to Judith C. Thompson, James Thompson, and the Trustee of any Irrevocable Special Needs Trust established for the benefit of Anne Crawford (the "Trust") in accordance with any pattern of making gifts to such persons or the Trust which the Principal has established or planned to establish.1
¶ 11 In May 2002, six days after Crawford signed the new power of attorney, the Thompsons used it to transfer $33,500 from Crawford's Merrill Lynch account to Crawford's Federal Credit Union account. They began to transfer that money to themselves in increments.
¶ 12 In November 2002, the Thompsons began efforts to sell Crawford's house. After trying to sell it on their own they accepted the offer of Crawford's neighbor Joy Stewart, a realtor, to list the house. The Thompsons repeatedly reassured Stewart that they were selling the house to put the money "into a trust fund they set up for Shirley so she could live on it for the rest of her life with her daughter." The house sold for $360,000 within three days of being listed. Due to a property line dispute, it took a few months for the sale to close. Within a few days of the closing in February 2003, the Thompsons gifted themselves a total of $309,260 of the house proceeds. The Thompsons used the money to pay off their own vehicle and credit card loans. They also bought a $200,000 boat for their Alaska fishing charter business.
¶ 13 In 2005, a question about Shirley Crawford's Medicaid eligibility led to another investigation by Adult Protective Services. The investigation revealed that the Thompsons had not established any special needs trusts. The Attorney General's office filed a petition for guardianship of Shirley Crawford as well as a petition to remove the Thompsons as guardians for Anne Crawford. A physician examined Shirley Crawford, who was then 87 years old, and reported that she was suffering from moderately severe dementia.
¶ 14 The court scheduled a hearing on the guardianship petition for September 14, 2005. After the hearing, the court appointed a guardian for Shirley Crawford's estate. The guardian found that all that was left in Crawford's accounts was $17.24.
¶ 15 The Thompsons came to the hearing on September 14, 2005 with a videotape of Shirley Crawford that they wanted to present to the court. They indicated that they had made the videotape quite recently and that it demonstrated that Shirley Crawford wanted them to have as a gift the proceeds of the sale of her house. The State obtained this videotape and showed it to the jury at the Thompsons' criminal trial in 2008. The videotape was the foundation for the witness tampering charge against both of the Thompsons.
¶ 16 On the video, Judith and James and other members of the Thompson family are shown gathered in Crawford's nursing home room. Judith Thompson hands a typed statement to Crawford. James Thompson tells Crawford that he wrote it from things that she said. Judith Thompson reads from the statement, which is written in the first person as if Crawford were speaking. It includes statements such as, "I wanted Jim and Judy to have my house." The video shows Crawford nodding and agreeing with the statements.
¶ 17 The Thompsons were tried jointly on charges of theft and witness tampering. Judith Thompson was the sole witness for the defense. She testified that Crawford feared her estate would be wasted on her own medical care instead of providing for Anne and the Thompsons. She said they had gifted Crawford's estate to themselves in order to protect it from would-be thieves and so that Medicaid would pay for Crawford's medical care. She said they needed the gifting power provided by the second power of attorney in order to do "estate planning" for Crawford. She said they spent Crawford's money on their charter business because it was a safer investment than the stock market. She said Crawford agreed with the Thompsons' use of her estate because she knew the Thompsons would care for Anne and her. On cross-examination, she could not explain why they spent the whole estate in about two years without directing any money to Anne. She acknowledged that when she and James made the video, Crawford was willing to agree with whatever anyone said, but she said that Crawford "was very definite about what she thought" when she talked to them.
¶ 18 As set forth in the instructions given by the trial court, the jury was required to find the following elements in order to convict the Thompsons of witness tampering:
(1) That on or about August 21, 2005, the Defendant attempted to induce a ...
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