                                                                             FILED 

                                                                           DEC 15,2015 

                                                                   In the Office of the Clerk of Court 

                                                                 W A State Court of Appeals, Division III 





            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                               DIVISION THREE 


STATE OF WASHINGTON,                           )
                                               )           No. 32734-5-III
                      Respondent,              )
                                               )
       v.                                      )
                                               )
VICKI S. BARRETT,                              )           UNPUBLISHED OPINION
                                               )
                      Appellant.               )

       KORSMO, J. -    Vicki Barrett appeals her conviction for first degree theft,

contending both that the evidence was insufficient and that improper admission of

hearsay evidence deprived her of a fair trial. Concluding that the evidence was sufficient

and that any error did not taint the verdict, we affirm.

                                           FACTS

       Ms. Barrett was charged with two counts of first degree theft involving her elderly

father, Clarence Swanson. He was in his late 80s at the time of the relevant events in

2010 and 2011 and residing at the Spokane Veterans Home, a nursing care facility. He

was frail and blind and unable to manage his own personal or financial affairs. He had a

history of cancer and was suffering from dementia.
No. 32734-5-II1
State v. Barrett


       At some point in late 2010, Ms. Barrett received a check for $16,980 made out to

Mr. Swanson. l Acting under her power of attorney for Mr. Swanson, she used

approximately half of the check to payoff the mortgage on the home owned by Mr.

Swanson and taxes owed on the property. She spent some of the remainder of the check

purchasing a variety of furniture, clothing, supplies, and food. Ostensibly, Ms. Barrett

was preparing the house so that Mr. Swanson could leave the Veterans Home and return

to her care, even though he had not lived in the house since 2006.

       As a result of the check, Mr. Swanson ceased qualifying for Medicaid assistance in

paying for his stay at the nursing home. Consequently, he was expected to pay the full

amount of his care until the $16,980 was accounted for and he again qualified for

Medicaid. While Ms. Barrett continued to pay the copay required under Medicaid, she

never paid the full amount, and his arrearages mounted to just over $64,000 before he died.

      Later that year, Ms. Barrett made arrangements with attorney Robert Redmond to

have a quitclaim deed drafted transferring ownership of Mr. Swanson's home to herself.

That deed was then executed, with Ms. Barrett signing for her father under the power of

attorney. Mr. Redmond was of the opinion that Mr. Swanson understood what he was

doing and manifested an intent to carry out the transfer, but was physically unable to sign

the paperwork.


       1 It
         is not clear whether the check was a refund on an insurance policy or a back­
payment of a veteran's pension. See Report of Proceedings (RP) at 62, 141.

                                             2

No. 32734-5-III
State v. Barrett


       Adult Protective Services (APS) investigated the situation and obtained findings of

neglect and financial exploitation in administrative proceedings before referring the

matter to the police. 2 The two noted charges eventually were filed against Ms. Barrett,

with one count of first degree theft relating to the check and the other to the home. The

jury convicted Ms. Barrett on the count relating to the check, but acquitted her on the

count relating to the home. The jury also found two aggravating factors present-the

victim was particularly vulnerable and Ms. Barrett abused a position of trust.

       After the trial court imposed a standard range term of zero days in jail, Ms. Barrett

timely appealed to this court.

                                       ANALYSIS

       Ms. Barrett contends both that the trial court wrongly permitted hearsay testimony

into evidence and that her confrontation clause rights were violated by that process, as

well as contending that the evidence was insufficient to support the conviction. We

address the evidentiary sufficiency claim first before turning to the hearsay/confrontation

clause contentions. 3




       2All evidence relating to the administrative proceedings was stricken during
motions in limine.
       3Ms. Barrett also contends that her trial counsel was ineffective by failing to raise
her confrontation claim. In light of our determination that any error was harmless, we do
not independently address that argument.

                                             3

No. 32734-5-111
State v. Barrett


       Sufficiency ofthe Evidence

       Very well settled standards govern review of this first issue. Appellate courts

review evidentiary sufficiency challenges to see if there was evidence from which the

trier of fact could find each element of the offense proven beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); State v.

Green, 94 Wn.2d 216, 221-222, 616 P.2d 628 (1980). The reviewing court will consider

the evidence in a light most favorable to the prosecution. Id. Reviewing courts also must

defer to the trier of fact "on issues of conflicting testimony, credibility of witnesses, and

the persuasiveness of the evidence." State v. Thomas, 150 Wn.2d 821, 874-875, 83 P.3d

970 (2004). "Credibility determinations are for the trier of fact and are not subject to

review." Id. at 874.

       As charged, the State was required to prove that Ms. Barrett exercised

unauthorized control over the property of Clarence Swanson in a value exceeding $5,000.

Clerk's Papers (CP) at 1-2; RCW 9A.56.030(l). In particular, count II alleged that Ms.

Barrett had exercised unlawful control over a $16,000 check. CP at 1-2.

       Here, Ms. Barrett contends the evidence was insufficient to establish that she stole

the check, pointing to her use of the proceeds to payoff the mortgage and improve the

home, and the jury's acquittal on the house theft count. However, the existence of

contradictory evidence does not create an evidentiary sufficiency issue. The focus of this

challenge is on what the jury decided, not what it could have decided.

                                              4

No. 32734-5-III
State v. Barrett


       Here, the jury could determine that Ms. Barrett profited from the use of the

proceeds of the check. First, she did not account for all of the $16,000 proceeds from the

check. Even if the jury decided that the $8,000 spent to pay off the mortgage and taxes

was for her father's benefit rather than her own benefit, a determination that only the jury

could make, the remaining $8,000 was not accounted for. Some of that amount allegedly

was spent at Costco for items used in the home, but given that Mr. Swanson had not lived

in the house for five or six years, the jury understandably had reason to conclude that

those expenditures were not for his benefit.

       The jury's decision to acquit on the count involving the theft of the house is not

the least bit inconsistent with the conviction for theft of the check. The testimony of

attorney Redmond gave the jury a basis for concluding that Mr. Swanson did want to

deed the house to his daughter, Ms. Barrett. Redmond testified that he took precautions

to affirm that it was Mr. Swanson's desire to deed the house over rather than merely the

desire of Ms. Barrett. Report of Proceedings (RP) at 32-40. In contrast, other than Ms.

Barrett's own testimony, there was no similar evidence indicating that Mr. Swanson

wanted Ms. Barrett to spend the check proceeds. The jury easily had a basis to

distinguish between the two situations.

       The evidence permitted the jury to conclude that the proceeds of the check were

spent to benefit Ms. Barrett rather than her father. The effect of her use of the check

proceeds was to burden her father's estate with a $64,000 nursing home bill. Since the

                                               5

No. 32734·5·111
State v. Barrett


only person to benefit from this arrangement was Ms. Barrett, the jury's verdict was quite

understandable.

       The evidence supported the jury's determination.

       Hearsay and Confrontation Challenges

       Ms. Barrett spends a substantial amount of time arguing over the effect of one

question asked during the brief testimony of a detective at the end of the State's case,

contending that the question constituted hearsay and a violation of her right to confront

witnesses. The latter contention is utterly without merit. However, review of the

testimony is necessary to explain her arguments.

       At the very end of the State's case, the prosecutor called detective Kirk Kimberly

to very briefly4 testity concerning his referral of the case to the prosecutor's office. At

the time, Detective Kimberly was the vulnerable adult investigator for the Spokane Police

Department. He explained that the case qualified for expedited treatment that consisted

of review of the APS file and referral to the prosecutor because probable cause existed to

believe that theft had occurred. It appears that the primary purpose of calling the

detective was to preemptively explain why he did not independently interview witnesses

or further develop the case. Defense counsel focused her examination on the actions



       4 Direct examination of the detective took less than four pages of the transcript,
including the defense objection, and cross· examination took another two pages. RP at
105·110.

                                              6

No. 32734-5-111
State v. Barrett


Detective Kimberly did not take-he did not interview Mr. Swanson, he did not

interview Mr. Swanson's doctor, he did not interview Ms. Barrett, and he did not

interview Mr. Swanson's other daughter, Flori Benner. At the end of the cross-

examination, the defense immediately called Ms. Benner as the first witness.

       The prosecutor asked about the detective's review of the report by APS

investigator Martin Yacker. Mr. Yacker had testified for the State immediately before

Detective Kimberly. The prosecutor asked the following question:

       Reviewing the report, is it your understanding there was a check from the
       VA paid to Mr. Swanson but spent by Ms. Barrett?

RP at 107. Defense counsel immediately objected, "hearsay." RP at 108. The trial judge

directed the witness to answer the question "yes or no," but not repeat anything stated in

the report. RP at 108. The detective answered "yes." RP at 108. The prosecutor then

more neutrally phrased a question whether the detective had also investigated and

referred the house transaction to the prosecutor's office. The defense did not object to

that question.

       It is from this small mound of dirt that Ms. Barrett attempts to build a

constitutional mountain. The constitutional question is easily rejected. The author of the

report in question, Mr. Yacker, testified at trial (as did the treating physician, Dr. Penger).

When a witness testifies at trial, the opportunity for confrontation exists. Therefore, no

confrontation clause violation exists when one witness is asked about a statement



                                              7

No. 32734-5-III
State v. Barrett


allegedly made by another testifying witness. Thomas, 150 Wn.2d at 858-859. If

Detective Kimberly was reporting a statement5 allegedly made by Mr. Yacker, there was

no confrontation issue because Mr. Yacker testified at trial. 6

       It is a closer question whether there was a violation of the rule against hearsay.

ER 802. Hearsay is a statement made by a declarant, other than while testifying, that is

"offered in evidence to prove the truth of the matter asserted." ER 801(c). Ms. Barrett

argues that the form of the question elicited a statement from Mr. Yacker's report. Given

the trial court's intervention and direction to only respond "yes or no" rather than relate a

statement, there probably was no violation of the hearsay rule. Thomas, 150 Wn.2d at

863 (where statement not elicited, no violation of hearsay rule). Nonetheless, the

imprecise wording of the question unnecessarily injected a potential hearsay answer into

the case and should have been avoided.




       5 The substance of the statement at issue was Ms. Barrett's statements to Mr.
Yacker concerning her use of the proceeds of the check. When offered against Ms.
Barrett, her statement to Mr. Yacker would not itself be hearsay. ER 80 1(d)(2)(i). A
recitation ofYacker's report of that statement by a third party such as Detective Kimberly
presents a different issue.
       6  Ms. Barrett also points to the fact that the detective reviewed the medical records   ,rI
                                                                                                r
contained in the APS investigation. As the author of those records, Dr. Penger, also            t

testified at trial, there likewise was no confrontation issue presented concerning those
records.

                                              8

No. 32734-5-II1
State v. Barrett


       Regardless of this possible error, there was absolutely no harm to Ms. Barrett.

Nonconstitutional error is harmless if, within reasonable probability, it did not affect the

verdict. State v. Zwicker, 105 Wn.2d 228,243, 713 P.2d 1101 (1986). Even

constitutional error is harmless error if it is clear beyond a reasonable doubt that the error

did not contribute to the verdict. Neder v. United States, 527 U.S. 1, 15, 119 S. Ct. 1827,

144 L. Ed. 2d 35 (1999) (citing Chapman v. California, 386 U.S. 18,87 S. Ct. 824,17 L.

Ed. 2d 705 (1967)); Thomas, 150 Wn.2d at 840-841. Under either standard, the alleged

error was harmless in this instance. Mr. Yacker testified to the same facts on direct

examination and Ms. Barrett did so as well. There was no question but that she cashed

the check and spent some of the proceeds. The question presented for the jury's decision

was whether she was permitted to do so. This third recitation of the same fact, to the

extent that the answer "yes" to the prosecutor's question can be construed in such a

manner, was utterly harmless in this case. 7

       To the extent that there was any error here, it did not impact the jury's decision.

Ms. Barrett has not established any prejudicial error.

       Affirmed.




       7  The answer the prosecutor was trying to elicit does appear to have been offered
for the purpose of establishing what the detective did. A statement that the answer was
for the limited purpose of explaining the detective's actions would have limited the jury's
use of the testimony to a proper, nonhearsay, purpose.

                                               9
No. 32734-5-111
State v. Barrett


      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:




   ~~f6\&--
    Siddoway, C.J. (J"
      Lawrence-Berrey, .




                                           10 

