                                                                                          (.--)
      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
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STATE OF WASHINGTON,                     )       No. 74436-4-1
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                    Respondent,          )       DIVISION ONE                 val. Cri rn c:3
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      V.                                 )                                     S" GI 0
                                         )       UNPUBLISHED OPINION           4=1
                                                                               •
JANET L. BAUML,                          )
                                         )

                    Appellant.           )       FILED: October 30, 2017


      LEACH, J. — Janet Bauml appeals her conviction for nine counts of theft in

the first and second degree. She challenges the sufficiency of the evidence to

convict her and the trial court's refusal to give her proposed jury instruction

defining "by color or aid of deception." She also claims that the trial court

categorically refused to impose a first-time offender waiver. Sufficient evidence

supports the jury's verdict, and the trial court provided the jury an accurate

statement of the law that allowed Bawl to present her defense. Finally, the trial

judge properly exercised her discretion, based on the facts of the case, when

refusing to apply the waiver. Thus, we affirm.

                                 BACKGROUND

      Janet Bauml met Mariana Cooper in 2006 at Cooper's friend's home in

Redmond, Washington. Cooper was 77 years old at the time. Soon, Bauml

began visiting Cooper regularly. Cooper learned that Bauml was a single mother
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with a 12-year-old daughter and a 16-year-old son. Bauml told Cooper that she

ran a business called Organizational Specialist but was frequently concerned

about having enough money to pay for rent and utilities. By 2007, Cooper and

Bauml were close friends. Around that time, Cooper asked Bauml to help her

with her accounting and bill paying. Cooper's family did not live nearby, and

Cooper trusted Bauml with her finances)

      Bauml, in 2008, first asked Cooper for money. Cooper characterizes

Bauml's first receipt of money from her as a gift. She describes all other

transfers of her money as loans. Bauml asked Cooper for money every few

months from 2008 through 2011, and Cooper always agreed. Each time Bauml

asked for money, she would appear serious and desperate. Cooper would ask,

"[D]on't you have anyone else?" and Bauml would say no.

      Bauml told Cooper she needed money for rent and utilities, for her son's

medical care related to his drug addiction, and for her own medical care. Cooper

testified that she never specified the terms of the loans or documented them with

a writing signed by Bauml because she trusted Bauml. Cooper funded the loans

by taking cash advances on her credit cards, by taking out a reverse mortgage,

which Bauml encouraged, and through her regular income from social security


      1 Cooper also asked Bauml to be the executor of her estate and granted
her power of attorney for both her finances and health care, as well as put
Bauml's name on her Bank of America account.
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No. 74436-4-1 /3



and a Boeing pension. Bauml repeatedly promised Cooper that she would

reimburse her. Bauml assured Cooper she would be receiving money from

various sources but never repaid Cooper. As a result, Cooper now lives in an

assisted living facility. Her IRA (individual retirement account), worth $84,000, is

her only remaining asset.

      In 2012, Cooper told her granddaughter, Amy Lecoq, about the loans to

Bauml, and they reported Bauml to the police. In total, Cooper loaned Bauml

$217,887.57. The State criminally charged Bauml for $180,200.00 in transfers.2

      The State charged Bauml with seven counts of theft in the first degree and

five counts of theft in the second degree. A jury convicted Bauml of five counts

of theft in the first degree and four counts of theft in the second degree. The jury

found a major economic offense aggravator for each count. The jury could not

reach a verdict on the other three counts.3 The court sentenced Bauml to 43

months in prison and ordered her to pay $175,200 in restitution. Bauml appeals

her conviction.




       2 The State did not charge all checks as crimes due to prosecutorial
discretion and statute of limitations issues. The State charged checks amounting
to $187,500, but that total includes the $7,300 in loans from a second alleged
victim, Jeffrey Michell, who is connected to counts 11 and 12. The charges
related to Cooper's checks amounted to $180,200.
       3 Jeffrey Michell, not Cooper, was the alleged victim in two of the three
counts on which the jury could not reach a verdict.
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                                    ANALYSIS

                          I. Sufficiency of the Evidence

       Bauml first challenges the sufficiency of the evidence to support her

convictions. When reviewing a sufficiency challenge, an appellate court, viewing

the evidence in the light most favorable to the State, asks whether any rational

trier of fact could have found the defendant guilty beyond a reasonable doubt.4

Sufficient evidence must support every element of the charged offense.5 The

appellate court defers to the trier of fact on issues of conflicting testimony,

witness credibility, and persuasiveness of the evidence.6

       To find a defendant guilty of theft, either in the first or second degree, by

means of deception, the jury must find, beyond a reasonable doubt, each of the

following elements: (1) the defendant, by color or aid of deception, obtained

control over the property of another person,7 (2) the defendant intended to

deprive that person of her property,9 and (3) the property exceeded $5,000 in

value for theft in the first degree9 or $750 in value for theft in the second

deg ree.1°


       4 State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
       5 State v. Alvarez, 128 Wn.2d 1, 19, 904 P.2d 754 (1995).
       6 State v. Mehrabian, 175 Wn. App. 678, 699, 308 P.3d 660 (2013).
       7 RCW 9A.56.020(b).
       8 RCW 9A.56.020(b).
       9 RCW 9A.56.030(1)(a).
       19 RCW 9A.56.040(1)(a).
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"By color or aid of deception" means that the deception contributed to the

defendant's ability to obtain the property, but it does not need to be the sole

means by which the defendant obtained the property." "Deception" occurs when

the defendant knowingly creates or confirms another's false impression that the

defendant knows to be false, fails to correct another's impression that the

defendant previously has created or confirmed, or promises performance that the

defendant does not intend to perform or knows will not be performed.12 The

statute focuses on the 'false impression created rather than the falsity of any

particular statement.13

       Here, Bauml must show that no rational juror could have found her guilty

beyond a reasonable doubt as to at least one element of each count of theft in

the first or second degree. Bauml challenges the sufficiency of the evidence to

prove two elements: (1) that she obtained control over Cooper's money by color

or aid of deception and (2) that she intended to permanently deprive Cooper of

the money. We hold that sufficient evidence supports both elements.

A. Sufficient Evidence Shows Bauml Made Deceptive Statements, and Cooper
Relied on Those Statements.

       First, Bauml challenges the sufficiency of the evidence to prove that she

obtained control over Cooper's money by color or aid of deception. Bauml

       11 RCW  9A.56.010(4).
       12 RCW 9A.56.010(5)(a),(b),(e).
       13 Mehrabian, 175 Wn. App. at 700.
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No. 74436-4-1 /6



makes a twofold argument: she claims that (1) she did not deceive Cooper about

her reasons for needing the money, and Cooper did not rely on those reasons in

loaning her the money, and (2) she did not deceive Cooper about her intent to

repay Cooper. We address each claim in turn.

      The State provided ample evidence to support a rational juror finding

beyond a reasonable doubt that Bauml deceived Cooper about the reasons she

needed the money. The State's financial analyst, Becky TyreII, provided

extensive testimony about both Cooper's and Bauml's financial records. TyreII

traced the loans from Cooper's accounts to Bauml's and learned how Bauml

spent a particular check or if Bauml made a cash withdrawal. Bauml spent the

majority of Cooper's money by either debit or credit transactions. Although TyreII

could not account for most of Bauml's cash spending, her accounting of Bauml's

expenditures clearly shows that on the whole, Bauml did not spend Cooper's

money for the purposes she had represented to Cooper. For example, TyreII

testified that Bauml made a number of purchases at retail stores and for lodging

in Oregon, spent Cooper's money on activities such as having her nails done,

and paid off her own credit cards.

      Bauml, however, represented to Cooper that she needed money for three

primary purposes: (1) rent and utilities,14 (2) her son Christopher's medical

       14 The State does not contest Bauml's genuine need for money for rent
and utilities.
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No. 74436-4-1/ 7



treatment, and (3) her own medical treatment. Bauml told Cooper that she did

not have medical insurance. Thus, she needed money for Christopher's

treatment and medication for drug addiction. She also claimed that she needed

money for his legal affairs.

       Christopher testified that he had been addicted to heroin and had, in fact,

attended treatment. Christopher completed a rehabilitation program in 2009, but

Bauml's debit or credit transaction history does not show any payment for this

program. Christopher also sought treatment from various alternative medicine

providers and counselors, some of whom he saw on a weekly basis for months.

Baumi spent only $5,235 on these alternative providers, excluding potential

spending with cash withdrawals, out of the $180,200 in transfers from Cooper

that were criminally charged. Christopher testified that Bauml paid for his 2009

rehabilitation program and for his additional treatment and counseling. But he

did not know the source of the payment funds. Although Bauml told Cooper she

needed money for Christopher's medication, Christopher was not prescribed any

medications to assist in his treatment. He purchased Suboxone off the street for

a total of $300, which Bauml funded.

       Similarly, Bauml told Cooper she needed money for Christopher's court-

ordered treatment in response to a drug charge. TyreII testified, however, that

Bauml's records show she used only $4,500 to pay Russell Dawson, who

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No. 74436-4-1 /8



Christopher confirmed was his attorney. Christopher testified that he received a

deferral that did not involve treatment.

       Bauml also represented to Cooper that she needed money for her own

imaging at the Polyclinic and vibrational psychology due to PTSD (posttraumatic

stress disorder) caused by childhood trauma. But TyreII did not find any

payments to the Polyclinic from either Bauml's bank accounts or credit cards.

Additionally, Bauml's Polyclinic records show that the Polyclinic treated her solely

for hypothyroidism. Because Bauml spent a comparatively small amount of the

total loans on the services for which she solicited money from Cooper, sufficient

evidence shows that Bauml knowingly created a false impression and used it to

deceive Cooper about the reasons she sought money from her.

       Bauml also maintains that Cooper did not rely on the reasons she gave

Cooper for needing the money. To support her claim, Bauml cites a portion of

Cooper's testimony in which Cooper says that "all [Bauml] had to do was ask,

and I'd give [the money] to her." But Cooper made this statement in the context

of explaining the extent to which she trusted Bauml, so much that Cooper did not

require an accounting of the loans. For example, Cooper also testified that she

believed the reasons Bauml gave her for needing the money and never tried to

verify her stories because she trusted her. Moreover, "by color or aid of

deception" means that the deception only contributed to Cooper's decision to

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No. 74436-4-1 /9



loan Bauml money, not that it was the sole cause.15 Substantial evidence shows

that Cooper relied on Bauml's deceptive reasons for needing the money.

      Bauml also challenges the sufficiency of the evidence to prove that she

deceived Cooper about her intent to repay Cooper. She supports her claim by

noting her repeated promises to reimburse Cooper. The evidence shows,

however, that Baumi did not have the resources to repay Cooper.

      Bauml worked for Nu Skin selling skin care products and in early 2011 told

Cooper that she would be receiving close to $1 million due to an upcoming

merger at Nu Skin, possibly as a result of an investment she had made. But in

examining Bauml's financial records, Tyre11 observed that from 2008-2012,

Bauml made a total of $350 to $400 at Nu Skin. Moreover, there is no record of

Bauml receiving a $1 million return on any investment in Nu Skin, nor is there

evidence that Baumi had invested in Nu Skin or that there was a lucrative

merger. Bauml told Cooper that she would also be receiving a settlement from a

car accident, but her daughter Kathryn does not remember Bauml ever waiting

on an insurance settlement.

      Moreover, Bauml avoided Cooper when Cooper asked for repayment to

pay for repairs on her roof in the summer of 2011. Cooper left messages on

Bauml's phone but could not get in touch with her, even after speaking with


      15   RCW 9A.56.010(4).
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No. 74436-4-1/ 10



Kathryn. Bauml attributed her absence to being in Canada and dropping her

phone. But neither Kathryn nor Christopher remembers Bauml taking a trip in the

summer or fall of 2011, nor do they remember Bauml losing or damaging her

phone. Bauml did not repay any of the more than $200,000 she received from

Cooper. From this evidence a reasonable juror could find that Bauml promised

performance that she did not intend to perform or knew she could not perform

and thus deceived Cooper when she promised to repay the loans.16

B. Sufficient Evidence Shows Bauml Intended To Permanently Deprive Cooper
of Her Money.

      Bauml also challenges the sufficiency of the evidence to prove that she

intended to permanently deprive Cooper of her money. She contends that she

always intended to repay Cooper, as shown by her repeated promises to do so.

But TyreII testified that from February of 2008 to January of 2012, Bauml

received a total of $30,257.87 that did not come from Cooper, including a

$15,000.00 inheritance. Thus, although Bauml had over $30,000.00 of her own,

she never repaid Cooper any of the more than $200,000.00 she borrowed from

Cooper. This evidence, together with Bauml's deception about her ability to




      16  Bauml does not contest that Cooper believed Bauml would repay her
and thereby relied on Bauml's promise of repayment. Cooper attested that she
would never have loaned Bauml the money if she had known that Bauml was not
going to repay her because, as a result, she lost everything.
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No. 74436-4-1/ 11



repay Cooper and Bauml's evasive behavior, provide sufficient evidence to prove

that Bauml intended to permanently deprive Cooper of her money.

                                II. Jury Instructions

   Bauml next claims that the trial court deprived her of her Sixth Amendment

right to present a defense by giving the pattern jury instruction defining "by color

or aid of deception" instead of or in addition to her proposed instruction. An

appellate court reviews de novo claimed errors of law in jury instructions.17 Error

is not considered prejudicial unless it affects or presumptively affects the

outcome of tria1.18 Jury instructions satisfy the defendant's Sixth Amendment

right to a fair triall° if, taken as a whole, they accurately inform the jury of the

relevant law, are not misleading, and allow the defendant to argue his theory of

the case.2° A trial court has discretion in the wording of jury instructions.21

       Bauml contends that the court's instruction defining "by color or aid of

deception," Washington Pattern Jury Instruction 79.03,22 did not allow her to

argue her defense to the jury. WPIC 79.03 states, "By color or aid of deception

means that the deception operated to bring about the obtaining of the property or



        State v. Kennard, 101 Wn. App. 533, 537, 6 P.3d 38 (2000).
       17
     18 State v. Hoffman, 116 Wn.2d 51, 97, 804 P.2d 577 (1991).
     19 State v. Coristine, 177 Wn.2d 370, 375, 300 P.3d 400 (2013).
     29 State v. Redmond, 150 Wn.2d 489, 493, 78 P.3d 1001 (2003).
     21 Kennard, 101 Wn. App. at 537.
     22 11A WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS:
CRIMINAL 79.03, at 202 (4th ed. 2016) (WPIC).
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No. 74436-4-I /12



services. It is not necessary that deception be the sole means of obtaining the

property or services." WPIC 79.03 states almost verbatim the statutory definition

of "by color or aid of deception"23 and thus accurately represents the law. In

addition, Bauml was able to argue her defense in closing argument. Bauml

asserted that she did not deceive Cooper because her financial records do not

represent her intentions and Cooper's few designations on the memo lines of the

checks are not sufficiently detailed or complete to represent the purpose of the

checks. Bauml was also able to emphasize that Cooper did not rely on her

stated reasons for needing the money because Cooper said she need only ask

and Cooper would give her money. The court's instruction satisfied Bauml's right

to a fair trial because it informed the jury of the relevant law, was not misleading,

and allowed Bauml to argue her theory of the case.

       Bauml also asserts that the trial court's refusal to give her requested

instruction, which she maintains accurately stated the law and effectively

represented her defense, impermissibly infringed on her right to present a

defense.       Bauml's proposed instruction, taken verbatim from State v.

Mehrabian,24 states, "Acquiring property 'by aid of deception' requires that the

victim relied on the deception. If the victim would have parted with the property

even if the true facts were known, there is no theft."

       23   See RCW 9A.56.010(4).
       24   175 Wn. App. 678, 701, 308 P.3d 660 (2013).
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       It is "well established," however, that the use of certain language in an

opinion does not mean it can be properly incorporated into a jury instruction.25

Further, Bauml's proposed instruction simply rewords the court's instruction

because both require the jury to find that the defendant's deception, at least in

part, caused the victim to part with the property. Because the court's instruction

satisfied Bauml's right to receive a fair trial and the trial court has discretion in the

wording of jury instructions, the trial court did not err in refusing to give Bauml's

instruction.

                           Ill. First-Time Offender Waiver

   Finally, Bauml contends that the trial court abused its discretion by

categorically refusing to impose a first-time offender waiver on any person

convicted of a theft involving a large sum of money. We disagree. Generally, a

defendant cannot appeal a sentence within the standard sentencing range.26 But

an offender may challenge the procedure a court used to impose the sentence.27

A trial court abuses its discretion when "it refuses categorically to impose an

exceptional sentence below the standard range under any circumstances.'"28




      25 State v. Alexander, 7 Wn. App. 329, 335, 499 P.2d 263 (1972); accord
Turner v. City of Tacoma, 72 Wn.2d 1029, 1034, 435 P.2d 927 (1967).
      26 RCW 9.94A.585(1).
      27 State v. Grayson, 154 Wn.2d 333, 338, 111 P.3d 1183 (2005).
      28 Grayson, 154 Wn.2d at 342 (quoting State v. Garcia-Martinez, 88 Wn.
App. 322, 330, 944 P.2d 1104 (1997)).
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No. 74436-4-1/ 14



   The first-time offender waiver allows a sentencing court to waive the

imposition of a sentence within the standard sentence range and impose a lesser

sentence that may include up to 90 days of confinement and community

custody.29 The trial court has broad discretion in sentencing a defendant under

the first-time offender option or in refusing to grant a first-time offender waiver.30

   Here, the record does not support Bauml's claim that the trial court

categorically refused to impose a first-time offender waiver. The record shows

that the trial court declined to afford Bauml a first-time offender waiver and

imposed the maximum term in the standard range for numerous reasons specific

to this case. In the court's view, the unpaid loan amount was exceptional, and

Bauml's continuous effort to take money from Cooper was "pathological." The

court further noted that Bauml did not appear to understand the gravity of her

actions and the fact that the case did not involve one friend doing a favor for

another but deceit on Bauml's part.

   Thus, the trial court did not abuse its discretion in sentencing Bauml because

it denied her the first-time offender waiver based on the specific facts and

circumstances of this case.




       29 RCW 9.94A.650(2), (3). A jury convicted Bauml of multiple counts of
theft with offense dates spanning from April 2009 to May 2011. Although RCW
9.94A.650 was amended in 2011, the changes are not relevant here.
       39 State v. Johnson, 97 Wn. App. 679, 682, 988 P.2d 460 (1999).
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No. 74436-4-1/ 15



                 IV. Statement of Additional Grounds for Review

   In her statement of additional grounds for review, Bauml appears to make an

ineffective assistance of counsel claim. She contends, "The public defender's

office was not willing to allocate the funds and time necessary to provide me an

adequate defense." Bauml asserts that the public defender's office could not

afford to manage the many out-of-state witnesses whose testimony she needed

to prove her theory of the case or to document her cash expenditures, an

essential component of her defense. Bauml also claims her attorneys prevented

her from testifying.

       To prevail on an ineffective assistance of counsel claim, the defendant

must show two components: (1) trial counsel's performance was deficient,

meaning counsel made errors so serious that counsel did not satisfy the

defendant's Sixth Amendment right to counsel, and (2) the deficient performance

prejudiced the defense, meaning counsel's errors were so serious as to deprive

the defendant of a fair tria1.31 Judicial scrutiny of counsel's performance must be

highly deferential, and the defendant must overcome the presumption that the

challenged action "might be considered sound trial strategy.'"32 The record

contains no information about many of the people Bauml identifies as witnesses

       31 Strickland   v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984).
      32 Strickland, 466 U.S. at 689 (quoting Michel v. State of Louisiana, 350
U.S. 91, 101, 76S. Ct. 158, 100 L. Ed. 83 (1955)).
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No. 74436-4-1 /16



who should have been called, placing this claim outside the scope of direct

review and possibly the subject of a personal restraint petition. Further, Bauml

has failed to show that her trial counsel did not provide a competent defense.

We therefore reject Bauml's apparent ineffective assistance claim.

                                  CONCLUSION

       The State presented sufficient evidence for a rational juror to find beyond

a reasonable doubt that Bauml deceived Cooper about the reasons she needed

the money and her ability to repay it, that Cooper relied on Bauml's deception in

loaning her the money, and that Bauml intended to permanently deprive Cooper

of the money. The trial court did not err in refusing to submit Bauml's requested

jury instruction because it repeated the court's instruction, which satisfied

Bauml's right to a fair trial. Similarly, the trial court did not err in sentencing

Bauml because it denied her a first-time offender waiver based on the facts of

this case and did not categorically refuse to consider her request.

      Affirmed.




WE CONCUR:



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