                                                                         FILED
                                                                    December 24, 2019
                                                               In the Office of the Clerk of Court
                                                              WA State Court of Appeals, Division III




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

STATE OF WASHINGTON,                              )
                                                  )    No. 36126-8-III
                      Respondent,                 )
                                                  )
       v.                                         )
                                                  )    UNPUBLISHED OPINION
THERISA MARRIE KNAPP,                             )
                                                  )
                      Appellant.                  )

       SIDDOWAY, J. — Therisa Knapp appeals her conviction for first degree theft,

assigning error to the trial court’s ruling admitting bank records for which no foundation

was laid by a record custodian. The State concedes error. Although admissible evidence

supports theft of property having some value, the State does not address whether the

court’s error was harmless. Since we will not search the record ourselves for the

sufficiency of the admissible evidence, we grant the State’s request to remand the matter

for a retrial of the first degree theft charge.
No. 36126-8-III
State v. Knapp


                     FACTS AND PROCEDURAL BACKGROUND

       In September 2016, Therisa Knapp was charged in Okanogan County with first

degree theft. Adult Protective Services had made a referral that Therisa1 and her husband

Kenneth might have wrongfully exerted control over funds belonging to Kenneth’s

mother, Geraldine Knapp. Kenneth was charged with both first degree theft and forgery.

       After her husband’s death in 2009, Geraldine had been able to live on her own, but

suffered from progressing dementia. In 2013, her daughter Vicki, who held a power of

attorney from Geraldine, became concerned about Geraldine living alone, and contacted

the New York Life Insurance Company (NY Life) to activate a long-term care policy

Geraldine had with the insurer. A nurse tasked with evaluating Geraldine agreed that she

should not be living alone, but Geraldine was adamant that she did not want anyone

living in the house with her.

       Shortly thereafter, Geraldine executed a durable power of attorney to her sons

Kenneth and Danny, revoking Vicki’s power of attorney. In or about early 2014,

Geraldine broke her hip and began to depend on Therisa and Kenneth for care and

assistance. At the end of 2014 or the beginning of 2015, Therisa and Kenneth moved into

Geraldine’s home.


       1
       To avoid confusion, all members of the Knapp family will be referred to by first
name. No disrespect is intended.



                                            2
No. 36126-8-III
State v. Knapp


       After Therisa and Kenneth began living with Geraldine, it became increasingly

difficult for other family members, including grandchildren, to visit her, arrange for her

presence at family events, or even contact her. Chains and a padlock appeared on the

entry gate to her yard. In August 2015, one of Geraldine’s granddaughters called police

and asked them to check on her; it was at that point that other family members learned for

the first time that Therisa and Kenneth had moved Geraldine into a nursing home several

months earlier, in May.

       Vicki initiated guardianship proceedings and, after being appointed guardian,

discovered that Geraldine’s assets had been dwindling rapidly, a couple of new credit

card accounts had been opened in Geraldine’s name, and a number of Geraldine’s

financial obligations had gone unpaid. Meanwhile, Adult Protective Services, which had

been in contact with Geraldine’s guardian ad litem, referred a concern to the Okanogan

County Sheriff, where it was assigned to Detective Deborah Behymer. The referral

ultimately resulted in the charges against Therisa and Kenneth.

       Therisa and Kenneth both waived their right to a jury trial, and the prosecution of

both proceeded to a joint, two-day bench trial. The State’s first witness was Detective

Behymer, and early in her testimony the prosecutor had her identify and describe the

bank record exhibits whose admission is challenged on appeal. Detective Behymer in

each case briefly described the exhibits and testified that they were accurate copies of

documents that North Cascades National Bank (NCNB) produced in response to search

                                             3
No. 36126-8-III
State v. Knapp


warrants. When the exhibits were then offered, Kenneth’s lawyer raised the following

objections, which were joined in by Therisa’s lawyer:

       Description             Objections made

Ex. 5 Checks written on        “Authentication. Yes. The foundation and
      Geraldine Knapp          authentication as to the . . . contents . . . including the
      acct ending in 1069      . . . checks and the bank statements.” RP2 at 55.

Ex. 6 Records of Kenneth       “Same objections, authentication and—also best
      and Therisa Knapp        evidence.” RP at 57. Asked by the court what he would
      accts ending in 7477     propose as the best evidence, defense counsel answered,
      and 6163                 “The original on bank paper printout with a custodian to
                               verify it is what it purports to be.” Id.

Ex. 7 Records of check         “[A]s . . . I understand it the state is offering the . . .
      deposits into            account summary . . . . [A]s such it’s objectionable.
      Kenneth and Therisa      And—there’s no information as to who did what . . . so,
      Knapp acct ending        in addition to the previous objections with
      in 6163 and 7477         authentication and such, I would also object on the basis
                               of—summary as evidence.” RP at 58. Counsel later
                               adds “also at the same time it’s hearsay.” RP at 60.

Ex. 8 Monthly account          “The same objections as the other documents.”
      statements for acct      RP at 66.
      ending in 8031 for
      1/2015 through
      August 2015.

Ex. 9 Signature cards for      “It’s not notarized, or—we don’t have anybody to verify
      Geraldine Knapp          who signed.” RP at 68.
      account adding
      Kenneth Knapp as
      signatory in 2014



      2
          Report of Proceedings.

                                             4
No. 36126-8-III
State v. Knapp


Ex.    Records of Kenneth       Asked by the court, “[T]he same objections?,” counsel
11     and Therisa Knapp        answers, “Yes.” RP at 71.
       accts ending in 7477
       and 6163 for 7/2015
       through 10/2015

       The trial court overruled the objections. Particularly after defense counsel

objected on hearsay grounds, it was error not to sustain the objections. Much of

Detective Behymer’s testimony that followed was based on information from the bank

records.

       The State called as additional witnesses Kenneth’s siblings Danny and Vicki,

Mary Jane Isley, a custodian of records for NY Life, and Renee Ewalt, Geraldine’s

guardian ad litem. Additional financial records for a Discover credit card and the NY

Life policy were offered and admitted. Kenneth was the only defense witness.

       The trial court took the matter under advisement and reconvened the parties a

week later to announce its findings and verdict that Therisa and Kenneth were guilty as

charged. Written findings and conclusions were filed by the trial court thereafter.

       Therisa appeals. After filing a brief in response to Therisa’s opening brief, the

State filed a motion to withdraw it. Its motion states that it “concedes the custodian of

records should have testified in this case.” Resp’t’s Mot. to Withdraw Response to

Appellant’s Br. & Remand Matter to Super. Ct. for Trial on the Merits at 2. We grant the

State’s motion in part, and deem its response to appellant’s brief withdrawn.


                                             5
No. 36126-8-III
State v. Knapp


                                         ANALYSIS

       Therisa argues that exhibits 5 through 9 and 11—all records produced to Detective

Behymer by NCNB—should not have been admitted because a qualified witness did not

testify about their identity, mode of preparation, and whether they were prepared in the

course of ordinary business.

       Under RCW 5.45.020, “A record of an act, condition or event, shall in so far as

relevant, be competent evidence if the custodian or other qualified witness testifies to its

identity and the mode of its preparation, and if it was made in the regular course of

business, at or near the time of the act, condition or event, and if, in the opinion of the

court, the sources of information, method and time of preparation were such as to justify

its admission.” See also ER 803(a)(6). Washington courts interpret the terms

“custodian” and “qualified witness” broadly, finding that a person who supervises the

creation of records is sufficient even if he does not have a sophisticated understanding of

how the records were compiled. State v. Ben-Neth, 34 Wn. App. 600, 603, 663 P.2d 156

(1983).

       Error may not be predicated on a ruling that admits evidence unless a substantial

right of the party is affected and a timely objection or motion to strike is made, stating the

specific ground of objection if the specific ground was not apparent from the context.

ER 103(a)(1). Subject to that requirement for error preservation, we review a trial court’s

interpretation of the rules of evidence de novo and, if its interpretation is correct, we

                                               6
No. 36126-8-III
State v. Knapp


review its decision whether to admit evidence for abuse of discretion. State v.

Arredondo, 188 Wn. 2d 244, 256, 394 P.3d 348 (2017).

       Detective Behymer’s testimony that she served search warrants on NCNB and

recognized the documents comprising exhibits 5 through 9 and 11 as ones she received

in response to the warrant provided sufficient foundation for a limited (and irrelevant)

purpose: it established that the documents are ones the bank produced in response to the

warrant. Her testimony was insufficient to establish that the documents are genuine bank

records or that they were prepared in the regular course of the bank’s business.

Accordingly, her testimony was insufficient to establish that the documents qualify for an

exception to the hearsay rule.

       Bank records do not have an inherent reliability that takes them outside the

requirements of RCW 5.45.020. The testimony of a custodian or other qualified witness

for NCNB was required.

       While conceding that the evidentiary ruling was error, the State does not explicitly

concede that it was reversible error. We will not search the record to determine the

extent of harm caused by the error where the State’s election not to file a brief deprives

Therisa of an opportunity to reply.




                                             7
No. 36126-8-III
State v. Knapp


       We reverse the first degree theft conviction and remand for a new trial.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.




WE CONCUR:




Fearing, J.



Q_            ,S)_   I   l'«-;J'.
Pennell, A.CJ.




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