Preview:

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON, ) Respondent, ) ) v. ) ) LESLIE J. SANDERSON, ) ) Appellant. ) ______________________________ ) ) STATE OF WASHINGTON, ) ) Respondent, ) v. JOSEPHINE T. SANDERSON, Appellant. ) ) ) ) ) ) ) No. 27580-9-III Consolidated with No. 27607-4-III

Division Three

UNPUBLISHED OPINION

Brown, J.--Leslie Sanderson and his wife, Josephine Sanderson, appeal their first degree theft convictions and the special jury verdicts for breaching their position of

No. 27580-9-III; No. 27607-4-III State v. Sanderson

trust and victim vulnerability. The Sandersons mainly contend insufficient evidence supports their convictions and the trial court should have granted their suppression motion. We reject their contentions and decline to address their remaining contentions because our record is insufficient for review. Accordingly, we affirm. FACTS Theresa Hammer and her late husband, Lloyd Hammer, Sr., executed a durable power of attorney before Lloyd Hammer, Sr., died. The document gave power of attorney to their son, Lloyd Hammer, Jr. (Mr. Hammer), in the event either of them died or was unable or unwilling to act. Ms. Hammer lived with her daughter and son-in-law, Josephine Sanderson and Leslie Sanderson, from 2003 until shortly before she died in November 2007. Mr. Hammer had little contact with his mother from 1997 until 2007. Mr. Hammer visited Ms. Hammer in late March 2007. Ms. Hammer was 85 years old, suffering health problems and was temporarily hospitalized following a March 25 stroke. Ms. Sanderson and Mr. Hammer agreed that Mr. Hammer would help transfer their mother to Franklin Hills, a nursing home. During the transfer, Mr. Hammer spoke with Ms. Hammer and perceived that she was very tired and forgetful. Ms. Hammer expressed concern for how she would pay for things. Mr. Hammer unilaterally invoked his power of attorney on March 31. Ms. Sanderson met Mr. Hammer at the Bank of America in Spokane to close the account that she co-owned with Ms. Hammer. Ms. Sanderson gave Mr. Hammer the $23,000 that had been in the account. Mr. Hammer 2

No. 27580-9-III; No. 27607-4-III State v. Sanderson

also requested Ms. Hammer's financial paperwork from Ms. Sanderson. In response, Ms. Sanderson gave him two carbon copies of recent checks. Ms. Sanderson simultaneously told him that she had written a check on March 21, 2007 for $5.78 to the city of Coulee Dam, but neglected to inform Mr. Hammer that Ms. Hammer had written a $40,000 check the same day to Ms. Sanderson. Mr. Hammer examined the check copies upon returning to his home. He saw the check for $5.78 to Coulee Dam and the $40,000 check to Ms. Sanderson. Ms. Hammer's signature on the $40,000 check appeared authentic. Mr. Hammer called Ms. Sanderson and asked about the $40,000 check. According to Mr. Hammer's recollection, Ms. Sanderson explained that she had forgotten to mention the check and that Ms. Hammer had given Ms. Sanderson the money because their mother wanted her to have the money because "she knew that [Mr. Hammer] would not take care of [Ms. Sanderson]." Report of Proceedings (RP) at 98. Mr. Hammer reported the matter to Adult Protective Services as a potential instance of fraud. Sheri Ellis, an Adult Protective Services social worker, visited Franklin Hills to speak with Ms. Hammer. By chance, Ms. Ellis first spoke with Ms. and Mr. Sanderson, who were setting up a television in Ms. Hammer's room. Ms. Ellis told the Sandersons she was investigating a financial exploitation allegation. Ms. Ellis asked them whether they had received a $40,000 check signed by Ms. Hammer and made out to Ms. Sanderson. They said they did. Ms. Sanderson also reported that they had used some of the money. Ms. Ellis requested the 3

No. 27580-9-III; No. 27607-4-III State v. Sanderson

Sandersons arrange a later meeting with her and bring with them receipts to show how they had spent the money. The Sandersons then left to allow Ms. Ellis to speak with Ms. Hammer alone. She found Ms. Hammer to be content with her situation but unaware how long she had lived at Franklin Hills, how long she had lived with the Sandersons, and who was managing her finances. Ms. Hammer did not remember whether she had written a check for $40,000 to Ms. Sanderson. Ms. Ellis later sent a letter to the Sandersons again requesting that they arrange an appointment to review receipts and the use of the money. The Sandersons scheduled and attended a meeting at the Adult Protective Services office on April 25. Ms. Ellis conducted the meeting along with Spokane Police Detective Kirk Kimberly. The detective participated in the meeting because a police report had been made around the same time as the Adult Protective Services referral. Neither Ms. Ellis nor Detective Kimberly advised the Sandersons of their protections against selfincrimination pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). The Sandersons provided receipts for how they had spent over $8,000 of the $40,000. Some of the expenditures were for Ms. Hammer, but most were for the Sandersons. The largest purchase was a used car for the Sandersons. The Sandersons produced a document purportedly dictated and signed by Ms. Hammer, Ms. Sanderson, and Mr. Sanderson on March 21, the same day of the $40,000 check. The document read as follows:

4

No. 27580-9-III; No. 27607-4-III State v. Sanderson

I, Theresa L. Hammer, being of sound mind, will be giving Josephine T. Sanderson a check for an undisclosed amount of monies to be deposited into an account with just her name on the account. This is in case I cannot think or provide for myself in the future. The funds deposited into Josephine T. Sanderson's account will be for my part of the house payment and any accumulated bills that need to be paid. It was mine and Josephine's understanding that if my daughter and her husband, Leslie J. Sanderson, were to take care of me, that we would need a place where all of us could live. . . . So we found a house, and my daughter and I shared in buying it. My daughter and her husband have taken excellent care of me, making sure I always took my medication when needed and getting me to my doctor appointments. They have put their lives on hold just so they could take care of me only because they care so much for me. And this is one way for me to help them the way they have helped me. I have had Leslie J. Sanderson, my daughter's husband, type this out for me so that in the future there would be no confusion about any of this. So I say this the 21st day of March of 2007. RP at 25-26. The Sandersons ultimately returned around $31,000 to Mr. Hammer, in his capacity as Ms. Hammer's power of attorney. The State charged Mr. Sanderson and Ms. Sanderson with first degree theft on July 27, 2007. The State charged two aggravating factors: the Sandersons (1) "should have known that the victim . . . was particularly vulnerable or incapable of resistance"; and (2) "used [their] position of trust, confidence, or fiduciary responsibility to facilitate the [theft]." Clerk's Papers (CP) (Case No. 27607-4-III, Josephine Sanderson) at 1; (Case No. 27580-9-III, Leslie Sanderson) CP at 1.

5

No. 27580-9-III; No. 27607-4-III State v. Sanderson

Trial began in October 2008. Before trial, the Sandersons moved to exclude statements they made in their meeting with Ms. Ellis and Detective Kimberly. Following a hearing in which the court heard argument from both parties and the testimony of Ms. Ellis and Detective Kimberly, the court orally ruled to admit the statements at trial. At the end of the oral ruling, the court contemplated entering written findings and conclusions, but none are in the record. The jury found the Sandersons guilty as charged and returned special verdicts finding they knew or should have known the victim was particularly vulnerable and incapable of resistance and that they used their position of trust, confidence, or fiduciary responsibility to facilitate the commission of the offense. The Sandersons appeal. ANALYSIS A. Evidence Sufficiency The Sandersons assail the evidence supporting their first degree theft convictions and argue the State's evidence did not disprove their good-faith-belief defense. In reviewing a sufficiency of the evidence challenge, we view the evidence in the light most favorable to the State and ask whether any rational fact finder could have found the elements of the crime beyond a reasonable doubt. State v. Gentry, 125 Wn.2d 570, 596-97, 888 P.2d 1105 (1995). A claim of insufficiency "admits the truth of the State's evidence and all inferences 6

No. 27580-9-III; No. 27607-4-III State v. Sanderson

that can reasonably be drawn from that evidence." Gentry, 125 Wn.2d at 597. A person commits first degree theft when he or she commits theft of property or services exceeding $1,500 in value other than a firearm. Former RCW 9A.56.030(1)(a) (1995).1 Theft, in relevant part, occurs when one "wrongfully obtain[s] or exert[s] unauthorized control over the property or services of another or the value thereof, with intent to deprive him or her of such property or services." RCW 9A.56.020(1)(a). The State's theory at trial was that Ms. Hammer was incompetent to authorize control over her money. So, even if Ms. Hammer herself signed the $40,000 check, the Sandersons wrongfully obtained the check from her. The Sandersons contend the State did not meet its burden on the element of first degree theft that the Sandersons wrongfully obtained or exerted unauthorized control over property of another. They argue the State did not prove Ms. Hammer's incapacity before or on March 21, 2007 beyond a reasonable doubt. However, the abundant trial evidence reviewed in the facts show Ms. Hammer experienced periods of confusion, memory problems, and cognitive deficit. The $40,000 check was unusually large and nearly depleted Ms. Hammer's account. The exculpatory document submitted by the Sandersons was suspicious. And, the Sandersons demonstrably used the money for their own purposes. From this evidence the jury could well find

The amount in former RCW 9A.56.030 was raised after the Sandersons' convictions to $5,000. Laws of 2009, ch. 431,

Download 275809-unp-doc.pdf

Washington Law