                                                                                                   FILED
                                                                                                   C'1`APPEALS

                                                                                          2013 J   30          I

                                                                                                                   1?:
                                                                                                                     9

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                                                                                                        7 find



    IN THE COURT OF APPEALS OF THE STATE OF WASHINGT                                               u       Y


                                            DIVISION II

STATE OF WASHINGTON,                                                  No. 42519 0 II
                                                                                - -


                                  Respondent,

       V.




CATHERINE ANNE BETTS,                                           UNPUBLISHED OPINION




       HUNT, J. — Catherine Anne Betts appeals her jury trial convictions and exceptional

sentences for first degree theft and money laundering; she also appeals 'her convictions for 19

other counts of filing a false or fraudulent tax return. Betts argues that the trial court ( )
                                                                                           1 erred in

denying her motion to change venue, ( )violated her Fourteenth Amendment right to due
                                    2

process by admitting evidence of her coerced statements to coworkers, 3)
                                                                      ( erred in admitting an

ER 1006 summary of original documents that contained hearsay and violated her right to

confrontation, 4)
               ( wrongly instructed the jury that it could aggregate theft offenses greater than

third degree theft in order to convict her of first degree theft, 5)
                                                                  ( wrongly instructed the jury on

the elements of filing a false or fraudulent tax return and improperly commented on the evidence,

and (6) "
       penalized" her with an exceptional sentence for exercising her constitutional rights to

remain silent and to a jury trial. Betts also argues that (7) prosecutor committed reversible
                                                             the

misconduct   during   cross   examination,. ( the State presented insufficient
                                          8)                                     evidence to support her
No. 42519 0 II
          - -




convictions for first degree theft and filing false or fraudulent tax returns, and (9) convictions
                                                                                     her

for first degree theft and money laundering constituted double jeopardy.

       We affirm Betts's convictions, vacate her exceptional sentences, and remand for

resentencing by a different judge. We also impose $
                                                  350 sanctions on Betts's appellate counsel,

Jordan B.McCabe, for violation of court rules and for material misrepresentations to this court.

                                             FACTS


                                        I. BACKGROUND


       Catherine Anne Betts worked as a cashier for the Clallam County Treasurer's Office (
                                                                                          the

County)from January 2003 until May 19, 2009, when she admitted to several employees that she

had taken money from the County..As County cashier, Betts received daily revenues from

various County departments, conducted their banking, collected tax payments, cashed checks,

and reconciled and balanced the County's accounts at the end of each day. The County could

receive several hundred thousand dollars a day from its departments and taxpayers.

       One of Betts's cashier responsibilities was to collect real estate excise tax' BEET)from
                                                                                      (
sellers of real estate. When a person in the County sold real estate, he would submit a cash or

check REET payment to the     County, along with his deed and    a   REET affidavit. One of five


County employees would accept the REET payment, stamp the affidavit with a sequential

number, write the sequential number on the deed, attach the cash or check payment to the



 REET is a tax imposed upon the sale of real property. A seller of real estate must pay the tax
before the auditor will record his deed. The REET is split between the State and the local entity,
here, the County, although the "bulk"of the money goes to the State. 4 Verbatim Report of
Proceedings ( RP)at 678.
             V




                                                2
No. 42519 0 II
          - -



affidavit, and leave it in Betts's cashier box. Although these five other employees could receive

REET payments, all of the REET payments and REET affidavits were eventually given to Betts

to process, to reconcile, and to use in balancing the County's accounts at the end of the day.

       Betts was then responsible for entering information about the REET payments into a

Microsoft Excel spreadsheet; she used this information to complete her daily account

reconciliations. At the end of each month, Betts gave the County's treasurer's accountant, Anne

Stallard, a "summary receipt" of the total amount of daily REET payments the County had

received.   4 Verbatim   Report   of   Proceedings (VRP) at     748.   Relying on Betts's summary

receipts, Stallard filed monthly tax " eports"with the Washington State Department of Revenue,
                                     r

detailing the amount of REET payments collected and remitting this money to the State as

unexpected revenue." 4       VRP at 679, 683.        Stallard submitted her monthly reports to the

Department without independently checking Betts's daily accountings or,cross -referencing her

accountings with the REET affidavits received. According to Stallard, Betts was normally " ery
                                                                                         v

good" at ensuring   that her accounts balanced each      day.   4 VRP at 755.   On May 18, 2009,

however, Betts was unable to close out her accounts; she was " fidgety" and unable to

concentrate. 4 VRP at 758. The next day, May 19, Betts was still unable to concentrate or to get

her accounts to balance; and she appeared "flustered." 1 VRP at 74. Betts told coworkers that

she was only " ff by $ 99. 2" that she could not find the problem. 4 VRP at 759.
             o       2 3 and




2
  These monthly tax reports functioned much like tax " eturns."See 4 VRP at 728. The County
                                                      r
remitted to the State the full amount of taxes it (he County) had received. Then, based on its
                                                  t
monthly reports, the County would receive its portion of REET from the State.




                                                 3
No. 42519 0 II
          - -



          When Betts went to lunch, Stallard and a couple other County employees reviewed

Betts's accounts and discovered the          error   for the   missing $299. 2. In reviewing Betts's
                                                                           3

accounts, the employees also found a suspicious $ 60 check for a REET payment, which was
                                                877.

missing its accompanying REET affidavit; this check had not been entered into Betts's Excel

spreadsheet   of   daily   REET      payments.   Having discovered $299. 2 when there was also an
                                                                       3

unaccounted for $ 60 check, Stallard was concerned and did not understand why Betts
                877.

believed her accounts would balance.


          Stallard discussed the problem with County Treasurer Judy Scott, who also served as

Betts's   supervisor. When Betts returned from lunch and was at her desk, Stallard and Scott

asked Betts why the $ 60 REET check was not represented on the daily REET payments
                     877.

spreadsheet. Scott stepped away from the conversation. Betts then whispered to Stallard, Don't
                                                                                         "

look any further," urged Stallard to go with her to the auditor's office. 4 VRP at 762.
                 and

          Walking to the auditor's office with Stallard, Betts stopped outside the women's

restroom, leaned     against   the   wall, and suddenly started crying. VRP    at 762.   Stallard asked,

What['
    s] wrong ?" 4 VRP at 762. Betts responded that she (Betts)had "ruined her life,"
                                                                                   that

she "[ idn't] to go to jail," she was "going to kill"herself and her girls, and that she
     d      want            that

wanted to leave"the building. 4 VRP at 765 66. Concerned that Betts was threatening suicide,
                                           -

Stallard did not let her leave. Betts eventually confessed that she had taken " couple excises,"
                                                                              a




3
  According to Stallard, Betts had changed a deposit and had written it "
                                                                        completely wrong" in
the accounting book such that " he book"was off by $ 99. 2. 4 VRP at 759.
                              t                    2 3


                                                       4
                                                                I




No. 42519 0 II
          - -



or "about $ 200" including the $ 60 payment),from the County. 1 VRP at 82; 4 VRP at
          1, (                 877.

766. At no point did Stallard order Betts to cooperate or to answer her questions.

           Stallard urged Betts to tell Scott about the money because Scott was Betts's supervisor.

Betts requested "moral support," Stallard accompanied Betts to Scott's office; Betts was still
                               so

visibly     shaken and   sobbing.     4   VRP at 767    Before Scott asked any questions, Betts

spontaneously stated that she "had really messed up," she had t-aken approximately "$
                                                    that                           800 to

1, from the County "
 200"              on two different occasions,"
                                              and that she did not want Scott to "
                                                                                 turn

her in" the authorities. 1 VRP at 106, 107; 4 VRP at 711. Betts explained that she had taken
       to

money from the County by " xchang[ ng a] check for cash"because she needed " light money"
                         e       i                                         f

to   get   away from her abusive    husband; she again stated   that she wanted to commit suicide. 1


VRP at 107; 4 VRP at 768.            Betts made these disclosures without Stallard or Scott having

ordered her to cooperate or to answer any questions.

           Believing that Betts needed "counseling,"
                                                   Scott left her office to speak with the County's

personnel director, Marge Upham. Stallard stayed behind with Betts, who again stated that she

wanted to leave. 1 VRP at 107. Still concerned for Betts's safety, Stallard would not let Betts

leave. When Scott returned, Stallard took Betts to Upham's office, where Betts discussed more

of her problems at home. At the end of this meeting, Scott and Upham decided Betts needed an

attorney, and they called a family lawyer for her.

           Meanwhile, Stallard examined Betts's daily REET payments spreadsheet for evidence of

a "tender exchange,"
                   namely Betts's having exchanged a check for cash, as she had disclosed. 4

VRP at 769.        When Stallard manually added the figures on Betts's daily REET payments

spreadsheet, she (Stallard)derived a total different from the one at the bottom of the spreadsheet;


                                                    5
No. 42519 0 II
          - -



she did not understand how this   was     possible.   She also discovered   a   series of hidden
                                                                                          "        rows "   in


the Excel spreadsheet, with around $ 000 represented in negative dollar amounts in the last
                                   80,
few months. 4 VRP at 772.


       The County called the police and reported Betts's conduct to the County Auditor. The

Auditor's Director of Special Investigations for fraud, James Brittain, conducted an investigation

and reviewed eight boxes of Betts's daily REET reconciliations from June 2003 to May 2009.

Brittain identified at least five schemes that had been used to misappropriate money from the

County. He also noted that (1) County's five employees shared passwords and had access to
                             the

Betts's spreadsheets, (2)the total amount of money misappropriated from the County had

increased over time ( rom $ 15, 00 in 2006 to $ 98, 00 in 2008), ( the suspicious activity had
                    f     1 0                 1 0              3)

ceased when Betts was on vacation, and (4)the number of tender exchanges had dropped

dramatically after she was placed on administrative leave. Brittain discovered cash shortfalls of

at least $617, 00.
             0         Because Betts was the only person completing the daily REET account

reconciliations, Brittain concluded that she was the only person who could have taken the money.

       Port Angeles Police Department Detective Jason Viada obtained a search warrant for

Betts's personal bank account records and credit card accounts. Viada discovered that, between

2004 and 2009, Betts had made cash deposits totaling nearly $ 000 more than she had earned
                                                            150,




4 To insert a "hidden row"into a Microsoft Excel spreadsheet, a person must either (1)right click
with the   mouse                   hide
                   and then select "
                                 row[ ]" from the drop down menu; or ( )
                                                                     2 select this feature
on the top menu of commands. 4 VRP at 788.
5
  Excel's auto sum feature calculated these negative figures; but they were not readily visible on
the spreadsheet.



                                                      Ce
No. 42519 0 II
          - -



with her      payroll   checks and other   explainable       sources   of income.   She had also made over


66, 00 in credit card payments between June 2007 and September 2009.
  0

                                              II. PROCEDURE


         The State charged Betts with ( )
                                      1 first degree theft, Count I;2)
                                                                     ( money laundering, Count

II;and (3)19 counts of filing a false or fraudulent tax return, Counts III through XXI. The State

alleged aggravating sentencing factors on the first degree theft and money laundering counts—

that the crimes were a major economic offense or a series of offenses under RCW

d).
535( 4A.
9. 3)(
   9

                                            A. Pretrial Motions


         During a pretrial hearing,the State noted its belief that Betts might move to change venue
based    on    pretrial publicity. When the trial court asked if this belief was accurate, Betts

responded, " es, your
           Y                  Honor." 1 VRP at 61.             The trial court informed Betts that, before

deciding such motions, it normally waited to see whether it could seat an impartial jury.

Nevertheless, the trial court instructed Betts to "go ahead and file"her motion, which the court

would address before trial 6
                           .       1 VRP at 65. Betts         responded, We will."1 VRP at 65. Betts,
                                                                         "



6
    More specifically, the trial court stated:
                 If you' e going to make a motion for change of venue, ... we'll deal with
                       r
         that during those three days [before trial].But, you know, my normal procedure
         is I know there's been publicity in this case, and my normal feeling on that is we
            —
         really don't know whether or not a jury is going to be prejudiced or unable —
          we're unable to find a jury in Clallam County until we try to pick it.

              my gut reaction is I don't think we're going to have any problem finding a
          So ...
      jury that's going to be able to sit here, so but go ahead andfile your motion. I
                                                   —
       thinkifyou need to do that,go ahead and do that so it' l be part of the record.
             —                                                  l
1 VRP at 65 (emphasis added).



                                                         7
No. 42519 0 II
          - -




however, never filed a motion to change venue or raised the issue again, either before or after

jury voir dire.

       Before trial, Betts moved to suppress her statements to Stallard and Scott, arguing that
these statements were involuntary and inadmissible. According to Betts, 1) County personnel
                                                                        ( a

policy required her "to [
                        c] [ w]th a [j][p] [ i] that she
                          ooperate i  ob erformance nvestigation" and

could be disciplined or terminated for failing to do so; and (2)therefore, her statements to

Stallard and Scott were inherently "
                                   coercive"and involuntary under Garrity v. New Jersey, 385

U. .493, 87 S. Ct. 616, 7 L.Ed. 2d 562 (1967).Clerk's Papers (CP)at 201; 1 VRP at 71.
 S                    1

        At the CrR 3. suppression hearing, Stallard and Scott testified to the facts previously
                    5

described. Betts admitted (1)having cashed the $ 60 REET check and having pocketed the
                                               877.

money; 2)
       ( having spontaneously whispered, Don't look any further,"
                                         "                      when Stallard showed her

the $ 60 check without the accompanying REET affidavit; 3)
    877.                                                ( having cried and having told

Stallard that she wanted to "commit suicide" when Stallard asked what was wrong; and (4)

having confessed to Stallard and to Scott that she had taken money from the County without

anyone having ordered her to answer questions or to cooperate with a County investigation.
VRP at 130, 135, 145 46. Betts also testified that she felt she needed to answer her supervisors'
                     -

questions or she could be subject to discipline, although she was not aware of a specific County

policy that required such cooperation.




7 Betts also challenged her statements to Upham. But the State agreed it would not use Betts's
statements to Upham as part of its case in-
                                        - chief; thus, the trial court did not discuss the
admissibility   of these statements in its   findings   of fact and conclusions of law.
No. 42519 0 II
          - -



       Distinguishing the facts in Garrity, the trial ruled that Betts's statements to Stallard and

Scott were not made under coercive conditions and were not the result of pressures or coercion

that would render them involuntary. The trial entered findings of fact and conclusions of law,

denied Betts's motion to suppress, and admitted the statements. Betts also stipulated pretrial that

her underlying bank records were admissible as business records.

                                             B. Trial


       The State's witnesses testified to the facts     previously   described.   During Detective

Viada's direct exam, the State referred to a written summary of Betts's bank account

information, prepared by a Washington state attorney general's office employee and marked as

exhibit 45. Viada explained that, although he had not personally created the summary marked as

exhibit 45, he had prepared the initial summary on which exhibit 45 was based and that it was a

fair and accurate summar[y]" data that he had reviewed and included in his initial
                          of the

summary.    6 VRP at 1025.       Betts objected to admission of this exhibit based on a lack of

foundation" and " ersonal knowledge."6 VRP at 1025. Satisfied with the foundation, the trial
                p

court overruled the objection.

       Betts testified in her own defense. VRP at 1112 93. She admitted (1)
                                                       -                   having cashed the

877. 0 REET check and' having taken it home with her, 2)
   6                                                  ( having told Stallard, You don't
                                                                              "

need to look [ further],"
                        when Stallard showed her (Betts) the $877. 0 check without its
                                                                 6

accompanying affidavit, ( )having told Stallard and Scott that she ( Betts) had cashed the
                        3

877. 0 check, 4)
   6          ( having prepared monthly summary receipts of the total daily REET payments

for Stallard, and (5)having known that Stallard relied on these receipts when she filed her

monthly reports for the Department of Revenue. 6 VRP at 1140. Betts denied having taken any


                                                 M
No. 42519 0 II
          - -



money from the County other than the $ 60 and having created or used " idden rows"on her
                                     877.                            h

daily REET payments spreadsheet. And she offered no explanation for the $150, 00 in cash
                                                                            0

deposits in her personal bank account, other than that her husband had usually given her $ ,00
                                                                                         10
cash each month for living expenses and she had occasionally taken out cash advances from her

credit card.


       The prosecutor cross -examined Betts about her. inability to explain the hidden rows on

her daily REET payments spreadsheet, the large cash deposits in her personal bank account, and

how she had been able to "
                         balance" checks that did not exist. 7 VRP at 1188. The prosecutor

then said:


       STATE]:Ms. Betts, is there —without being able to explain any of that, is there
       anything else last chance is there something you want to tell us?
                      —          —
       BETTS]:No.
       STATE]:It might make a difference [at]sentencing. It might make a difference
       to someone-



7 VRP at 1189 ( emphasis     added). The trial court sustained Betts's objection, struck the

prosecutor's statements and Betts's response from the record, and told the jury to disregard this

colloquy.

       On the fourth day of trial, Betts orally challenged the State's ability to aggregate second

degree theft offenses, arguing that (1)RCW 9A. 6.
                                           c)
                                           010( 1)( aggregation of only third
                                              2
                                              5  allows

degree theft offenses, and (2) "vast majority" of Betts's alleged thefts therefore could not be
                             the

aggregated under the statute. V VRP at 925. The trial court reserved ruling on the issue. Two




8 Toward the end of Betts's employment with the County, she was depositing close to $ 0, 00 a
                                                                                    1 0
month in cash into her bank account.




                                               10
No. 42519 0 II
          - -



days later, after Betts rested her defense case, she moved for a ruling on her theft aggregation

challenge, again arguing that only third degree thefts could be aggregated under the statute.

Denying Betts's motion as "untimely," trial court ruled that the State could aggregate any of
                                    the

the thefts that were "less than the $ 000 threshold [for first degree theft],"
                                    5,                                      provided it could

prove that such thefts were part of a common scheme or plan. 7 VRP at 1198.

        During a hearing on jury instructions, Betts renewed her challenge to the State's ability to

aggregate theft offenses greater than third degree theft. She objected to the trial court's giving

Instruction 8,which defined the " alue"for theft offenses as follows:
                                v

               Value means the market value of the property at the time and in the
        approximate area of the act.

             Whenever any series of transactions that constitutes theft is part of a
        common scheme or plan, then the sum of the value of all transactions shall be the
        value considered in determining the degree of theft involved.

CP at 84 (Instruction 8)emphasis added); 7 VRP at 1245. The trial court also instructed the
                         (             see

jury about filing a false or fraudulent tax return:

                A person commits the crime of filing a false or fraudulent tax return when
        they make or cause to be made a false statement on a return with intent to defraud
        the State and evade the payment of a tax or part thereof.

CP at 96 ( Instruction   20) emphasis added). Betts neither objected to this instruction nor
                             (

proposed an alternate instruction.

        The jury found Betts guilty on all counts; in connection with her first degree theft and

money laundering counts, the jury also returned special verdicts finding that these crimes

constituted major economic offenses or a series of offenses under RCW 9.
                                                                      d).
                                                                      535( 4A. Based
                                                                         3)(
                                                                         9




                                                  11
No. 42519 0 II
          - -




on these special verdicts, the trial court imposed exceptional sentences for Betts's first degree

theft and money laundering convictions.

         For the first degree theft conviction, Count I,the trial court imposed an exceptional

sentence term of 120 months of confinement, well above the standard range of 43 to 57 months.

For the money laundering conviction, Count II,the trial court imposed an exceptional sentence

by first imposing a standard range sentence for the conviction and then running it consecutively
                              -

with both (1) enhanced first degree theft sentence and (2) standard range sentences .on
             the                                          the

counts IIIXXI for
          —             filing   a   false   or   fraudulent tax return.   The trial court also ran Betts's


standard range sentences on the filing a false or fraudulent tax return convictions, Counts III

XXI, concurrently with each other but consecutively to its exceptional sentences for first degree

theft and money laundering. Betts's resultant term of confinement was for 144 months.

         The trial court orally noted the following reasons for imposing the exceptional sentences

on Betts's first degree theft and money laundering counts: (1) crimes involved attempted or
                                                              the

actual monetary losses substantially greater than typical for the crime (e. ., $00 for first
                                                                          g 5, 0

degree theft); ( the crimes involved a high degree of sophistication or planning; 3) crimes
             2)                                                                   ( the

occurred over a lengthy period of time; and (4)Betts had used her position of trust, confidence,

or   fiduciary responsibility    to facilitate the commission of the crimes.         These reasons for the


exceptional sentences were included in the trial court's written findings and conclusions

justifying its exceptional sentence. These reasons also mirrored the language in instructions 45


9
 See RCW 9. 535,  94A. amended by 2013 Wash. Legis. Serv. Ch. 84 (S. .1383) WEST),
                                                                  B.
                                                                   H        (
without changing the substance applicable here; and RCW 9.
                                                        a).
                                                        589( 4A.
                                                           1)(
                                                           9




                                                         12
No. 42519 0 II
          - -



and 47, which defined "major economic offense or a series of offenses" for purposes of RCW

d),
535( 4A.and were reasons that the jury considered in rendering its special verdicts.
9. 3)(
   9

       In its oral sentencing ruling, the trial court also commented that Betts had not shown any

remorse" for the commission of her crimes. 8 VRP at 1390. The jury had not been asked to

find whether Betts lacked remorse for the commission of crimes as part of its special verdicts.

Nevertheless, the trial court stated that it must factor"Betts's lack of remorse into its sentencing
                                             "

decision. 8 VRP at 1390. The trial court then directly addressed Betts by further noting:

               Once you were caught, there was never any offer on your part to
       participate in the investigation or insist in any waynow,I understand you have
                                                            —
       an absolute right to remain silent. You have an absolute right to have a jury trial.
       You exercised those rights. You cannot be punished for exercising those rights.

               On the other hand, there was another choice that you could have made
       that would have made your situation this morning considerably better as far as
       the Court is concerned; and you opted not to cooperate in any way, to not express
       any remorse and to defend the case, which you have a right to do; but I am aware
       of the evidence, and the evidence was overwhelming. For example, you had no
       explanation at all, at all for how [the] 150, 00 in cash found its way into your
                                                $ 0
       personal banking account over this period of time. No explanation at all. [ ... ]
              So what we ended up was, is having an enormously complicated and
        expensive trial that the jury costs were almost $ , alone, tens of thousands of
                                                        9 000
        dollars in investigative expenses on both sides.

8 VRP at 1391 92 ( mphasis added).Unlike the trial court's earlier reasons we discussed above,
              - e

Betts's lack of remorse and the trial court's comments in this colloquy were not included in the




                                                 13
No. 42519 0 II
          - -



                                                                                                 10
trial court's written     findings and conclusions justifying        its   exceptional   sentence.



           Betts appeals her convictions and exceptional sentences.

                                                     ANALYSIS


                                                I. CHANGE OF VENUE


           Betts first argues that the trial court erred in denying her motion to change venue. The

record, however, shows neither that Betts moved to change venue nor that the trial court denied

such   a   motion.      Because the record does not support her underlying factual allegations, the

argument fails       at the outset and   we   do not address its   merits.I l

                                         II. STATEMENTS NOT COERCED


           Betts next argues that the trial court violated her right to due process under the Fourteenth
                12
Amendment            by admitting the statements she made to Stallard and Scott. She contends that (
                                                                                                   1)

the County had a personnel policy requiring employees to cooperate in internal investigations;




to In support of its exceptional sentences, the trial court entered findings of fact and conclusions
of law, paraphrased as follows: ( ) jury found both the first degree theft, Count I,and money
                                1 the
laundering, Count II,to be major economic offenses under RCW 9.    d),
                                                                   535( 4A.which was
                                                                           3)(
                                                                           9
not an element required to prove either offense; and (2)Betts "
                                                              repeatedly violat[ d]her position
                                                                               e
of trust and fiduciary responsibility" by engaging " over a lengthy period of time in a
sophisticated scheme that resulted in the theft of money of a value substantially greater than
typically seen for these types of crimes."CP at 15 (Conclusion of Law ( L)7).
                                                                      C

11 But even assuming, without deciding, that the trial court should have construed Betts's pretrial
colloquy as an oral motion to change venue, she failed to support such " otion"with affidavits
                                                                       m
or other proof of prejudice, as the law requires. RCW 4.2.CrR 5. (
                                                      030; 1         b)(State v. Eppens,
                                                                         2);
                                                                         2
30 Wn. App. 119, 127, 633 P. d 92 (1981).
                               2
12
     U. .CONST. amend. XIV.
      S




                                                           14
No. 42519 0 II
          - -



                                                                               13
2)employees could be disciplined for failing   to   comply with   this   policy; and ( )
                                                                                     3 therefore, her

statements to Stallard and Scott were inadmissible because they were " coerced" and

involuntary"under Garrity. Br. of Appellant at 14, 19. We disagree.

         In reviewing a trial court's denial of a suppression motion, we determine whether

substantial evidence supports the trial court's findings of fact and whether the findings support

the trial court's conclusions of law. State v. Ross, 106 Wn. App 876, 880, 26 P. d 298 (2001).
                                                                               3

Substantial evidence exists when there is a sufficient quantity of evidence to "persuade a fair-

minded, rational person of the truth of the finding."State v. Hill, 123 Wn. d 641, 644, 870 P. d
                                                                          2                  2

313 (1994).We review conclusions of law de novo. State v. Johnson, 128 Wn. d 431, 443, 909
                                                                         2

P. d 293 (1996).And we treat unchallenged findings of fact as verities on appeal. Hill, 123
 2

Wn. d at 644. A defendant is deprived of due process of law.if his conviction is founded, in
  2

whole or in part, upon an involuntary confession. Jackson v. Denno, 378 U. . 368, 376, 84 S.
                                                                         S

Ct. 1774, 12 L. Ed. 2d 908 (1964).A "
                                    voluntary"confession is one that is the product of the

defendant's own free will and judgment. State v. Unga, 165 Wn. d 95, 101 02, 196 P. d 645
                                                             2           -        3

2008). The inquiry is whether, under the totality of the circumstances, the [defendant's]
                                                                        "

confession was coerced."State v. Broadaway, 133 Wn. d 118, 132, 942 P. d 363 (1997).
                                                  2                  2




13
     Ex. 1.




                                                15
No. 42519 0 II
          - -



                              14
          Citing Garrity, Betts argues that her statements were similarly coerced because the

County had a personnel policy that required her to cooperate in internal investigations. We agree

with the trial court's distinguishing Garrity on its facts because, here, Stallard and Scott never

referenced the personnel policy, Betts admitted that she did not fully understand the policy, and

the personnel policy did not require the type of reporting or face dismissal that the Garrity policy

required.       The trial court's written findings of fact and conclusions of law contained the

following findings: (1)Stallard's and Scotts' primary concern was to ensure Betts's safety, not
                                                                                            "

to obtain ...       evidence of criminal       activity "; 2) s initial whispered statements to Stallard
                                                           ( Betts'

were "   entirely voluntary"           and   were " not     elicited   by   any    questions "; and (3)Betts's later

statements to Stallard and Scott were not made under "coercive"conditions. CP at 192. Betts

did not    assign   error   to these   findings   of   fact; thus, they   are   verities   on   appeal."Hill, 123 Wn.2d


14
   In Garrity, the New Jersey Attorney General investigated police officers for fixing traffic
tickets. Garrity, 385 U. . at 494. As required by a state statute, before being questioned the
                         S
police officers were advised that (1) anything they said could be used against them in a criminal
proceeding; 2)( they had the privilege to refuse to answer; but ( ) they refused to answer, they
                                                                3 if
could be removed from office. Garrity, 385 U. .at 494. The United States Supreme Court held
                                            S
that these conditions were inherently coercive because the police officers were given a choice
either to "forfeit their jobs or to incriminate themselves,"
                                                           and, therefore, they could not be used
against the defendants in a criminal proceeding. Garrity, 385 U. .at 497 98,500.
                                                               S         -
is
     Similarly; Betts does not challenge the following findings of fact, which are also are verities
on appeal:
           1.  The primary concern of Ms. Stallard and Ms. Scott was not to obtain
           admissible evidence of criminal activity, but rather to assure the physical safety of
           the defendant.
           2. This concern was the primary reason that the defendant was not left alone after
           her initial breakdown outside the Auditor's Office.
           3.  The defendant's initial whispered requests that Ms. Stallard not look further
           into the accounting discrepancy were entirely voluntary and not elicited by any
           questions.



                                                               16
No. 42519 0 II
          - -



at 644. These unchallenged findings support the trial court's conclusion of law that all of Betts's

statements to Stallard and Scott were voluntary and were not the product of pressure or coercion.

We hold that the trial court did not violate Betts's due process rights in admitting her statements

at trial.


                       III. NO HEARSAY OR CONFRONTATION CLAUSE VIOLATION


         Betts next argues that the trial court erred in admitting exhibit 45 as a written summary of

her   personal   bank account information.     As mentioned above in the facts section, an attorney

general office employee had prepared exhibit 45 based on Detective Viada's initial summary of

Betts's bank account information. Although Viada laid the foundation for this evidence at trial

and testified that exhibit 45 was a fair and accurate representation of his initial summary and the

data he had reviewed, Betts contends that exhibit 45 was inadmissible because it ( contained
                                                                                 1)

triple hearsay" and (2)violated Betts's right to confrontation. Br. of Appellant at 43. Again,

we disagree.

                                         A. Standard of Review


            We review a trial court's decision to admit or to exclude evidence for abuse of discretion.


State v. Stenson, 132 Wn. d 668, 701, 940 P. d 1239 (1997).Atrial court abuses its discretion
                        2                  2



            4. The defendant's statements to Ms. Stallard made outside the Auditor's Office
       were made after the defendant had begun to cry and were in response to Ms.
       Stallard asking[,] "
                          What is wrong ?"
       5. The encounter outside the Auditor's Office was not coercive.
       6. The defendant's statements made in Ms. Scott's office were made in response
       to Ms. Scott asking[,] " What happened ?" when the defendant and Ms. Stallard
       returned to her office and it appeared that the defendant had been crying.
       7. The encounter in Ms. Scott's office was not coercive.
CP at 192 (emphasis added).



                                                    17
No. 42519 0 II
          - -



if its decision "is manifestly unreasonable or based upon untenable grounds or reasons."

Stenson, 132 Wn. d at 701. We review alleged confrontation clause violations de novo. Lilly v.
               2

Virginia, 527 U. . 116, 137, 119 S. Ct. 1887, 144 L. Ed. 2d 117 (1999);
               S                                                      State v. Jasper, 174

Wn. d 96, 108, 271 P. d 876 (
  2                 3       2012).

                                         B. Not Hearsay

       Betts first argues that exhibit 45 was inadmissible "triple hearsay" because it recreated

Viada's initial summary of Betts's bank account information.       Br. of Appellant at 43..Betts,

however, did not object to this evidence on hearsay grounds at trial. Instead, she objected that

Viada lacked "personal knowledge" and that the State had not laid the proper "foundation"for

the exhibit. 6'VRP at 1025. This objection was insufficient to preserve Betts's triple hearsay"
                                                                                 "

objection for appeal.

       To preserve an evidentiary objection for appeal, the defendant must make a specific

objection at the trial court. ER 103(
                                 1);a)( v. Harris, 154 Wn. App. 87, 94, 224 P. d 830
                                      State                                  3

2010).If the defendant objects to the admission of evidence on one ground at trial, she may not

assert a different ground for excluding the evidence on appeal. State v. Price, 126 Wn. App.

617, 637, 109 P. d 27,review denied, 155 Wn. d 1018 (2005).Because Betts did not object to
               3                           2

this evidence on hearsay grounds at trial,we hold that she failed to preserve this issue for appeal.

                           C. No Implication of Confrontation Clause

       For the first time on appeal, Betts also argues that the trial court violated her

confrontation rights by admitting exhibit 45 because (1) " ank records"underlying exhibit 45
                                                       the b

were "testimonial hearsay," (2) did not have the opportunity to cross -examine the bank
                          and  she

employee who provided the records to law enforcement. Br. of Appellant at 43. We disagree.


                                                 18
No. 42519 0 II
          - -



        The United States Constitution's Sixth Amendment Confrontation Clause guarantees that

i] all
 n        criminal   prosecutions, the   accused shall   enjoy   the   right ...   to be confronted with the


witnesses against him."U. . CONST. amend. VI. This right " pplies to `witnesses' against the
                        S                                a

accused . . .,    those who ` bear   testimony.' ` Testimony,' in turn, is typically `[ ]solemn
                                                                                      a

declaration or affirmation made for the purpose of establishing or proving some fact."'
                                                                                     Jasper,

174 Wn. d at 109 (internal quotation marks omitted)quoting Crawford v. Washington, 541 U. .
      2                                            (                                    S

36, 51, 124 S. Ct. 1354, 158 L.Ed. 2d 177 (2004)). "
                                                 Testimonial"hearsay statements may not

be introduced against a defendant at trial unless the proponent of the evidence shows that (1)the

declarant witness is unavailable and (2) defendant had a prior opportunity to cross -examine
                                        the

the declarant witness. Crawford, 541 U. . at 68; State v. Lee, 159 Wn.App. 795, 815, 247 P. d
                                      S                                                   3

470 (2011),
          review denied, 302 P. 3d 181 (2013).If the hearsay statements are not " estimonial,"
                                                                                t

however, they do not implicate the Confrontation Clause and no such showing is required. State

v. Hubbard, 169 Wn.App. 182, 187, 279 P. d 521 (2012);
                                       3             Lee, 159 Wn. App. at 815.

         In Crawford, the United States Supreme Court described the following statements as

comprising the " ore class"of testimonial statements:
               c

         ex parte incourt testimony or its functional equivalent—hat is,material such as
                      -                                         t
         affidavits, custodial examinations, prior testimony that the defendant was unable
         to cross -examine, or similar pretrial statements that declarants would reasonably
         expect to be used prosecutorially "; ... " extrajudicial       statements ...   contained in
         formalized testimonial materials, such as affidavits, depositions, prior testimony,
         or   confessions "; and "statements that were made under circumstances which
         would lead an objective witness reasonably to believe that the statement would be
         available for use at a later trial."

Crawford, 541 U. . at 51 52 (
               S         - emphasis added) internal quotation marks and citations omitted).
                                            (

More recent United States Supreme Court cases have also held that documents specifically



                                                    19
No. 42519 0 II
          - -



prepared for use in a criminal proceeding fall within this core class of testimonial statements.

See Melendez Diaz v. Massachusetts, 557 U. . 305, 310 11,324, 129 S. Ct. 2527, 174 L.Ed. 2d
             -                           S            -

314 (2009) holding three forensic "certificates of analysis" stating that a substance tested
           (

positive   as   cocaine   were   testimonial);
                                             see   also   Bullcoming   v. New   Mexico, _     U. . ,
                                                                                               S          131 S.


Ct.2705, 180 L.Ed. 2d 610 (2011);
                                Jasper, 174 Wn. d at 112.
                                              2

        Betts does not contend that the trial court violated her right to confrontation because the

exhibit 45 summary itself as the third level of hearsay)was testimonial and that she did not have
                          (

the prior opportunity to cross -examine the attorney general office employee who prepared it.

Instead, she challenges the testimonial nature of only the underlying bank records themselves

the first layer of hearsay         in exhibit   45). According to Betts, her bank records fall within

Crawford's core class of testimonial statements because "an unidentified bank employee" gave

the bank records to the police in compliance with a search warrant; and thus, the employee could

have   reasonably "expected [the        bank    records]   to be used in   a    criminal   proceeding."   Br. of


Appellant at 43. This argument fails.

        Betts's argument confuses the bank records' creation ( when the bank records'

statements"were made) with the employee's physical act of turning over the bank records to

another (which itself is not necessarily testimonial).The record on appeal shows that ( ) s
                                                                                      1 Betts'

bank records were already in existence when the police served their search warrant, and (2)
                                                                                          these

bank records had been made during the course of the bank's regularly conducted business

practices. Thus, Betts fails to show that any statements contained in the bank records were made

under circumstances which would lead an objective witness reasonably to believe that the




                                                          117
No. 42519 0 II
          - -



statement would be available for     use    at   a   later trial." Crawford,   541 U. . at 52 ( internal
                                                                                    S

quotation marks omitted).

       Moreover, Betts stipulated pretrial that the underlying bank records were admissible as

business records." 2 VRP at 195.           Although a business record admissible under a hearsay

exception may be excluded if it violates the Confrontation Clause, certain statements "by their

nature [are] not testimonial for example, business records or statements in furtherance of a
                             —

conspiracy." Crawford, 541 U. . at 56 (emphasis added). The United States Supreme Court
                            S

recently reaffirmed this principle in Melendez Diaz:
                                               -

       Business and public records are generally admissible absent confrontation not
       because they qualify under an exception to the hearsay rules, but because —having
       been created for the administration of an entity's affairs and not for the purpose
       ofestablishing or proving some fact at trialthey are not testimonial.
                                                    —

Melendez Diaz, 557 U. . at 324 (emphasis added). Again, nothing in the record suggests that
         -          S

Betts's bank records were prepared for the purpose of establishing or proving a fact necessary to

Betts's crimes at trial.   Instead, the bank records were prepared for administering the bank's

affairs. We hold that Betts's bank records were not testimonial and that the trial court did not err


in admitting their summary, exhibit 45.

                               IV. NO PROSECUTORIAL MISCONDUCT


       Next, Betts argues that during her cross -examination the prosecutor committed

misconduct that warrants reversal of her convictions. She contends that the prosecutor expressed

an improper opinion on her guilt when he highlighted her inability to explain the hidden rows in

her daily REET payments spreadsheet and her large cash bank deposits by stating, Ms.Betts ...
                                                                                 "

last chance is there
            —          something else   you want to tell    us ?"   because "[ t might make a difference
                                                                            i]




                                                      21
No. 42519 0 II
          - -




at sentencing." Br. of Appellant at 46 (quoting 7 VRP at 1189). The State concedes that the

prosecutor's questioning was improper, but it argues that Betts fails to show prejudice. We agree

with the State.


       A defendant claiming prosecutorial misconduct bears the burden of demonstrating "that

the prosecutor's conduct was both improper and prejudicial in the context of the entire record
and circumstances at trial."State       v. Miles, 139 Wn. App. 879, 885, 162 P. d 1169 (2007).
                                                                              3

Prejudice occurs only if there is " substantial likelihood the instances of misconduct affected the
                                  a

jury's verdict."State v. Pirtle, 127 Wn. d 628, 672, 904 P. d 245 (1995).An objection and an
                                       2                  2

appropriate jury instruction may cure any resulting prejudice. See State v. Warren, 165 Wn. d
                                                                                          2

17, 28, 195 P. d 940 (2008).Where a defendant objected at trial or moved for a mistrial on the
             3

basis of   prosecutorial misconduct, we give      deference to the trial court's    ruling   because ` [   t]
                                                                                                            he

trial court is in the best position to most effectively determine if prosecutorial misconduct

prejudiced [the] defendant's right to   a   fair trial. "' Stenson, 132   Wn. d at 719 (internal quotation
                                                                            2

marks omitted) quoting State v. Luvene, 127 Wn. d 690, 701, 903 P. d 960 (1995)); also
               (                              2                  2             see

State v. Ish, 170 Wn. d 189, 95-
                    2 96, P. d 389 ( 010).
                           1    241 3 2

       The State may not assert a personal opinion about the defendant's guilt or a witness's

credibility. State v. McKenzie, 157 Wn. d 44, 53, 134 P. d 221 ( 2006);
                                      2                3              State v. Reed, 102

Wn. d 140, 145, 684 P. d 699 (1984).In asking Betts whether she had anything to add because
  2                  2

i] might make a difference [at] sentencing," prosecutor implied that he believed she was
 t                                         the




                                                     22
No. 42519 0 II
          - -



guilty and would soon be sentenced by the trial court. 7 VRP at 1189. We accept the State's
                                                                          16
concession that this     was   improper   cross -examination   questioning.

          Betts, however, fails to demonstrate that this improper opinion prejudiced her: She does

not show a substantial likelihood that the prosecutor's statements affected the jury's verdict.

When Betts objected to the prosecutor's questioning, the trial court sustained the objection,

struck the prosecutor's statements and Betts's response from the record, and instructed the jury

to   disregard   the   testimony. The trial court's final instructions to the jury also informed the

furors:


          The   lawyers' remarks, statements, an d arguments ...     are not evidence. The
          evidence is   the testimony and. the exhibits. The law is contained in my
          instructions to you. You must disregard any remark, statement, or argument that
          is not supported by the evidence or the law in my instructions.

CP at 76 (Instruction 1)emphasis added). This instruction further provided: "If evidence was
                         (

not admitted or was stricken from the record, then you are not to consider it in reaching your

verdict."CP at 75 (Instruction 1)emphasis added).
                                  (

          We presume that the       jury followed    the trial court's instructions. State v. Swan, 114


Wn. d 613, 661 62,790 P. d 610 (1990).Here, the trial court's instructions substantially cured
  2            -       2

any prejudice resulting from the prosecutor's improper cross -examination questioning of Betts,




16 We note,however, that because Betts admitted to having taken " bout $ 200"from the
                                                                a      1
County, sentencing was likely.




                                                       23%
No. 42519 0 II
          - -



especially   in   light   of the   strength   of the State's evidence.17   Because Betts fails to demonstrate

prejudice, her prosecutorial misconduct claim fails.
                                                V. JURY INSTRUCTIONS


       Betts further argues that the trial court erroneously instructed the jury ( ) the elements
                                                                                 1 on

of filing a false or fraudulent tax return and ( ) aggregation of theft offenses greater than third
                                               2 on

degree theft to convict Betts of first degree theft. She also argues that the trial court's erroneous

instruction on filing a false or fraudulent tax return constituted a judicial comment on the

evidence. These arguments fail.

                                                A. Standard of Review


       We review instructional errors de novo, evaluating the challenged instruction "`
                                                                                      in the

context of the instructions          as a   whole. "'   In re Pers. Restraint of Hegney, 138 Wn. App. 511,

521, 158 P. d 1193 ( 2007) quoting State v. Benn, 120 Wn. d 631, 654 55, 845 P. d 289
          3                (                            2            -        2

1993)). instructions are "not erroneous if,taken as a whole, they properly inform the jury
     Jury

of the applicable law, are not misleading, and permit the defendant to argue his or her theory of

the case."State v. Wilson, 117 Wn. App. 1, 17, 75 P. d 573 (2003).Even if an instruction may
                                                   3

be misleading, we will not reverse for this reason unless the complaining party shows prejudice.

State v. Aguirre, 168 Wn. d 350, 364, 229 P. d 669 (2010).
                        2                  3



17
   Betts also moved for a mistrial on the basis of this prosecutorial misconduct. The trial court
denied the .mistrial motion, noting that it had previously sustained Betts's objection, instructed
the jury to disregard the question and the response, and believed this was "sufficient" and that
the prosecutor's questioning did not "  rise[ ]to the level of mistrial material." 7 VRP at 1248.
We accord deference to the trial court's ruling because the trial court was in the best position to
determine whether the prosecutor's improper cross -examination questioning prejudiced Betts's
right to a fair trial. Stenson, 132 Wn. d at 719.
                                      2


                                                            24
No. 42519 0 II
          - -



       Furthermore, if a party fails to object to a jury instruction below, she waives a claim as to

the instructional.error on appeal unless she can demonstrate that the instructional error was a

manifest error affecting a constitutional right."
                                                RAP 2. (
                                                    a)(State v. Edwards, 171 Wn.App.
                                                     3);
                                                     5

379, 387, 294 P. d 708 (2012). Under this standard, the defendant has the initial burden of
               3


showing that (1)the      error         truly
                                  was "`          of constitutional dimension "'       and (2)the error was

manifest. "' State    v. Grimes, 165 Wn. App. 172, 185 86,267 P. d 454 (2011)quoting State v.
                                                       -       3              (

O' ara, 167 Wn. d 91, 98, 217 P. d 756 (2009)),
 H            2                3             review denied, 175 Wn. d 1010 (2012).A
                                                                  2

defendant   cannot    simply      assert   that   an   error   occurred   at   trial   and   label   the, error

constitutional "';   instead, he must identify an error of constitutional magnitude and show how

the alleged error actually affected his rights at trial. Grimes, 165 Wn. App. at 186 (citing State v.

Gordon, 172 Wn. d 671, 676, 260 P. d 884 (2011)). the defendant successfully shows that a
              2                  3             If

claim raises a manifest constitutional error, then the burden shifts to the State to prove that the

error was harmless beyond a reasonable doubt. Grimes, 165 Wn. App. at 186 (citing Gordon,

172 Wn. d at 676 n. ).
      2           2

                                 B. Filing False or Fraudulent Tax Return

       Betts argues that the trial court erroneously instructed the jury on the elements of filing a

false or fraudulent tax return because Instruction 20, which defined the crime, included extra

words not expressly included in the criminal statute and constituted an improper comment on the

evidence. Betts did not object to this instruction at trial; and she fails to argue on appeal that the

alleged instructional error was a manifest error affecting a constitutional right that she can raise

for the first time on appeal under RAP 2. (
                                       a)( Therefore, we do not further consider these
                                        3).
                                        5




                                                       25
No. 42519 0 II
          - -




arguments. RAP 2. ( v. Bertrand, 165 Wn. App. 393, 402 03,267 P. d 511 (2011),
               a)(State
                3);
                5                                      -       3

review denied, 175 Wn. d 1014 (2012).
                     2

                                         C. Aggregating Thefts

         Betts also argues that the trial court erroneously instructed the jury on the types of theft

offenses that may be aggregated. According to Betts, Instruction 8 erroneously defined the term

value" for theft offenses because (1)RCW 9A. 6. C)provides that multiple acts of
                                         010(
                                            2 18
                                            5 1)(
third degree theft may be aggregated; and ( )
                                          2 Instruction 8 implied that the jury could aggregate

any of Betts's individual acts of theft alleged by the State, regardless of whether the individual

act would have constituted third degree theft or a greater theft offense. Br. of Appellant at 31.

The   State   responds   that   the   trial   court's jury instruction was proper because RCW

c)
010( 1)( not abrogate a prosecutor's common law ability to aggregate theft
9A. 6.
   2
   5   does

offenses that are part of a single criminal episode or common scheme or plan. We agree with the

State.




is RCW 9A. 6.
       c)
       010( 1)(
          2
          5  provides:
                Except as provided in RCW 9A. 6.and 9A. 6.whenever
                                                  340(  4
                                                        5 ) 350(          4
                                                                          5 ),
         any series of transactions which constitute theft, would, when considered
         separately, constitute theft in the third degree because ofvalue, and said series of
         transactions are a part of a criminal episode or a common scheme or plan,then the
         transactions may be aggregated in one count and the sum of the value of all said
         transactions shall be the value considered in determining the degree of theft
         involved.
                 For purposes of this subsection, " riminal episode" means a series of
                                                  c
         thefts committed by the same person from one or more mercantile establishments
      on three or more occasions within a five day period.
                                                -
Emphasis added).     The Legislature amended this statute in 2006 and 2011, but these
amendments do not affect the substance of this provision or our analysis in this opinion.



                                                    I.
No. 42519 0 II
          - -



        Betts objected to the trial court's Instruction 8 defining " alue"in the proceedings below.
                                                                   v

Therefore, she has preserved this issue for appeal. But this argument fails on the merits.

        Instruction 8,taken verbatim from 11A WASHINGTON PRACTICE: WASHINGTON PATTERN

JURY INSTRUCTIONS: CRIMINAL 79. 0 ( d ed. 2008),
                              2 3              defined " alue"as
                                                       v

        the market value of the property at the time and in the approximate area of the act.
        Whenever any series of transactions that constitutes theft is part of a common
        scheme or plan, then the sum of the value of all transactions shall be the value
        considered in determining the degree of theft involved.

CP at 84 (Instruction 8)emphasis added). Betts appears to argue that Instruction 8's "he sum
                         (                                                           t

of the value of all transactions" language was improper because (1)RCW 9A. 6.
                                                                       c)
                                                                       010( 1)(
                                                                          2
                                                                          5

provides that a jury may aggregate third degree theft offenses; and (2)the statute does not

provide for aggregation of other theft offenses. This argument ignores the State's common law

ability to charge sufficiently related theft offenses as a single crime.

        Aggregation of individual transactions to meet the threshold for a particular degree of

theft is allowed by common law and by statute."State v. Atterton, 81 Wn. App. 470, 472, 915

P. d 535 ( 1996)emphasis
 2               (                 added). Common law allows thefts to be aggregated (1)if the

defendant commits a series of thefts from the same owner and the same place and each taking

was   the result of a
                    "   single   criminal   impulse pursuant   to   a   general   larcenous scheme ";   and (2)if

the defendant commits a series of thefts from the same victim over a period of time or from

several victims at the same time and place, provided the takings were "
                                                                      part of a common scheme

or plan."Atterton, 81 Wn. App. at 472 (citing State v. Vining, 2 Wn. App. 802, 808, 472 P. d
                                                                                         2

          and State
564 (1970);                v.    Meyer, 26 Wn. App. 119, 124, 613 P. d 132 (1980)).
                                                                   2              Washington

courts have also applied these common law theft aggregation principles in situations where, as




                                                      27
No. 42519 0 II
          - -



here, a defendant's individual acts of theft may have each been greater than the value amount

constituting third degree theft. See, e. .,
                                       g State v. Barton, 28 Wn. App. 690, 691, 626 P. d 509
                                                                                     2

aggregating defendant's five acts of presenting forged bank withdrawal slips of 3000 each to
                                                                                $ ,

constitute one first degree theft offense),
                                          review denied, 95 Wn. d 1027 (1981).
                                                              2

        Betts appears to argue that RCW 9A. 6.
                                        c) these common law theft
                                        010( 1)(
                                           2
                                           5  abrogates

aggregation principles because the statute discusses aggregation only in relation to third degree

theft. Division One of this court, however, has previously rejected a similar argument where a

defendant presented forged bank withdrawal slips, each for $ 000, to the same bank on five
                                                           3,

occasions to withdraw money fraudulently from his brother's savings account. Barton, 28 Wn.

App. at 691. The State charged Barton with one count of first degree theft, even though each act

of theft would have separately constituted only second degree theft. Barton, 28 Wn. App. at 691,

694. Barton argued on appeal that the State had improperly charged him with first degree theft
because RCW 9A. 6.permitted aggregation of only third degree thefts. Barton, 28 Wn.
            010
              5

App. at 694. Division One noted that (1)nothing in the express language of RCW 9A. 6.
                                                                               010
                                                                                 5

purport[ed]to abrogate the common law"theft aggregation principles; and (2)under RCW
060, p]
9A. 4. "[
  0 the   rovisions of the common law supplement penal statutes to the extent they are

consistent." Barton, 28 Wn. App. at 694 95. Division One held that the common law theft
                                        -


aggregation principles allowing the State to charge a series of related thefts as one crime were


19
     The Barton   opinion   cited former RCW 9A. 6.1976).
                                             010 (
                                               5                   Although the Legislature has
amended this statute several times since 1976, the provision allowing aggregation of thefts that
are part of a common scheme or plan has remained virtually unchanged since Barton. Thus, we
cite the current version of the statute.




                                               28
No. 42519 0 II
          - -



consistent with RCW 9A. 6.
                    010 because RCW 9A. 6.
                      5             010 was a more specific theft aggregation
                                      5

statute. Barton, 28 Wn.App. at 695.

       Here, the State argued that Betts was guilty of first degree theft under the second

common law requirement—hat Betts's thefts were from the same victim over a period of time
                      t

and were part of a common scheme or plan. Adopting Barton's analysis, we hold that ( )
                                                                                   1 RCW

c)
010( 1)(
9A. 6. not abrogate the State's ability to aggregate a series of sufficiently related
   2
   5  did

thefts of any degree under common law; and (2) trial court's Instruction 8 was not erroneous
                                              the

in stating that the jury could aggregate " he sum of the value of all transactions"if the thefts were
                                         t

part of a common scheme or plan.

                                  VI. SUFFICIENCY OF EVIDENCE


       Betts next argues that the State presented insufficient evidence to support her convictions

for first degree theft and filing a false or fraudulent tax return. We disagree.

                                      A. Standard of Review


       When reviewing a sufficiency of the evidence challenge, we ask whether, after viewing
                                                                               "

the 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. Hosier, 157 Wn. d 1, 8,
                                                                                      2

133 P. d 936 (2006).A claim of insufficiency admits the truth of the State's evidence and all
     3              "

inferences that reasonably can be drawn therefrom."State v. Salinas, 119 Wn. d 192, 201, 829
                                                                           2

P. d 1068 (1992) en bane). Circumstantial evidence and direct evidence are equally reliable.
 2               (

State v. Moles, 130 Wn. App. 461, 465, 123 P. d 132 (2005).On appeal, we defer to the trier of
                                            3

fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the




                                                 29
No. 42519 0 II
          - -



evidence. State v. Thomas, 150 Wn. d 821, 874 -75,. P. d 970 (2004)citing State v. Cord,
                                 2               83 3               (

103 Wn. d 361, 367, 693 P. d 81 (1985)).
      2                  2

                                       B. First Degree Theft

         To convict Betts of first degree theft, the State needed to prove that she committed theft

of "[p]
      roperty   or services which exceed(s) thousand dollars in value other than a firearm as
                                          five

defined in RCW 9.1.RCW 9A. 6.
               010." 030(
                 4     a). 6.
                         1)(
                         5   RCW 9A.
                                 a)
                                 020(
                                    1)(
                                    5 defines "theft"as
wrongfully obtain[ ng] or exert[ ng] unauthorized control over the property or services of
                 i             i

another or the value thereof, with intent to deprive him or her of such property or services."

         Here, the evidence showed that, as the County's cashier, Betts had access to large

amounts of money and was responsible for reconciling the County's REET accounts at the end

of each day. Although other employees may have also accepted REET payments, Betts was the

only employee responsible for processing these payments and imputing this information into her

daily REET payments Microsoft Excel spreadsheet. Moreover, Betts readily admitted to Stallard

and Scott that she had taken "a couple excises," around 1800 to $ 200,"
                                               or               1, from the County

and that she had done so by " xchang[ ng]a check for cash" i. a tender exchange). 1 VRP at
                            e       i                      ( e.,

82,4 VRP at 711, 767.

         When the County and the police investigated Betts's admitted tender exchange thefts,

they discovered that ( ) had around $ 000 in " idden rows"in her daily REET payments
                     1 she          80,      h


20
     The Legislature amended this statute in 2007, 2009, and 2012, but these amendments do not
affect the 'substance of this provision or our analysis here.
21
     The Legislature amended this statute in 2004, but these amendments do not affect our analysis
here.




                                                  W
No. 42519 0 II
          - -




spreadsheet; ( )someone had misappropriated at least $
             2                                        617, 00 from the County using five
                                                         0

schemes, including tender exchanges; ( )the suspicious activity ceased when Betts was on
                                     3

vacation; 4) number of tender exchanges dropped when Betts was on administrative leave;
          ( the

and ( )
    5 between 2004 to 2009, Betts had made nearly $ 000 in cash deposits in excess of her
                                                  150,

payroll   and other     explainable    sources    of income.      Brittain testified that only Betts could have

perpetrated the crimes because she was the only person who reconciled and balanced the daily

REET accounts.          This evidence was sufficient for a rational trier of fact to have found the


essential elements of first degree theft beyond a reasonable doubt.

          Betts primarily challenges the adequacy of Brittain's investigation methods for

determining that she had taken the full $ 17, 00 amount from the County and his conclusion
                                        6 0

Betts   was    the   only   person who could have       perpetrated     the crimes.   Betts argues that, without

Brittain's testimony, 1) only evidence that showed she had wrongfully obtained or exerted
                      ( the

unauthorized control over the property of another was her admission that she had cashed the

877. 0 REET check; and ( )
   6                   2 this evidence was not sufficient to convict her of first degree theft

because the first       degree   theft statute   requires theft   in   excess      $ 000. We do not find these
                                                                                of 5,


arguments persuasive; at most, they raise questions about Brittain's credibility and the proper

weight of his testimony, which were issues for the jury to decide. See State v. Camarillo, 115

Wn. d 60, 71, 794 P. d 850 (1990);
  2                2             State v. Walton, 64 Wn. App. 410, 415 16, 824 P. d 533,
                                                                       -        2

review denied, 119 Wn. d 1011 (1992).
                     2

          Furthermore, Stallard also testified that she had discovered over $ 0, 00 in hidden rows
                                                                            8 0

on   Betts's    daily   REET     payments spreadsheet.         Even if the jury believed that this $ 000
                                                                                                    80,

represented the entire amount of money that Betts had unlawfully taken from the County, this


                                                          31
No. 42519 0 II
          - -



amount alone would have been sufficient to establish the value element required for first degree

theft. Viewing the evidence and reasonable inferences in the light most favorable to the State,

we hold that the State presented sufficient evidence to support Betts's first degree theft

conviction.


                               C. Filing False or Fraudulent Tax Return

           Betts also argues that the State presented insufficient evidence to support her convictions

for filing false or fraudulent tax returns. Again, we disagree.

           The State charged Betts with 19 counts of complicity in filing a false or fraudulent tax

return, under RCW          82. 2. RCW 9A. 8. RCW 82. 2.
                           a)(2)( 020.
                           290(
                              iii)
                              3  and    0        a)(
                                                 290(
                                                    iii)
                                                    2)(
                                                    3

provides that it is unlawful "[
                              flor any person to make any false or fraudulent return or false

statement in any return, with intent to defraud the state or evade the payment of any tax or part

thereof."The relevant portion of the complicity statute, RCW 9A. 8.also provides:
                                                             020,
                                                               0

           1) person is guilty of a crime if it is committed by the conduct of another
               A
           person for which he or she is legally accountable.
           2) person is legally accountable for the conduct of another person when:
               A
                   a) Acting with the kind of culpability that is sufficient for the commission
           of the crime, he or she causes an innocent or irresponsible person to engage in
           such conduct.


Emphasis added). Thus, in order to convict Betts of filing a false or fraudulent tax return under

a complicity theory, the State needed to present evidence that Betts ( ) caused an innocent or
                                                                     1 had




22
   The Legislature amended this statute in 2009 and 2010, but these amendments do not affect
this statutory provision or our analysis here.
23
      Legislature amended this statute in
     The                                            2011   to   add   gender -neutral language.   These
amendments do not affect our analysis here.



                                                    32
No. 42519 0 II
          - -



irresponsible person to file a false or fraudulent tax return or to make a false statement in any

return and ( ) so with intent to defraud the State or to evade paying tax.
           2 did

       The State met its burden here. The State presented evidence at trial that Betts had been

unlawfully taking REET payments for several years and had hidden this information from her

supervisors, Stallard   and Scott.   Although Betts did not personally file any REET tax returns

with the State, she submitted monthly summary receipts to Stallard that contained false

representations about the total amount of daily REET payments the County received. Stallard

relied on these false representations when submitting the County's monthly reports to the

Department of Revenue, which detailed the amount of REET payments received and remitted the
                   24
money to the State.     The State also presented evidence that Stallard did not know about Betts's

theft and money laundering schemes and did not independently check Betts's daily REET

account reconciliations before filing the County's monthly reports. And Betts testified that she

was aware that Stallard was using her (Betts's)
                                              false summary receipt figures to complete the

County's monthly reports.

       Based on this evidence, a rational trier of fact could conclude that Betts caused an

innocent or irresponsible individual (
                                     Stallard)to make a false statement on a tax return and that




24
  Betts also argues for the first time on appeal that Stallard's monthly "
                                                                         reports" were not "tax
returns"and, thus, did not invoke RCW 82. 2. of Appellant at 22. Betts cites
                                         a)(Br.
                                         290(      iii).
                                                   2)(
                                                   3
no case law supporting this argument, as RAP 10. (
                                               a)(requires. Therefore, we do not further
                                                    6)
                                                    3
consider this argument.




                                                 33
No. 42519 0 II
          - -



Betts did so with the intent to defraud the State or to evade the payment of a tax or part thereof.

Accordingly, we hold that the State presented sufficient evidence to support Betts's convictions

for filing a false or fraudulent tax return.

                                       VII. DOUBLE JEOPARDY


        For the first time on appeal, Betts argues that her convictions for first degree theft and

money laundering constitute double jeopardy. We disagree.

                          A. Standard of Review; Statutory Construction

        We review claims of double jeopardy de novo. State v. Jackman, 156 Wn. d 736, 746,
                                                                             2

132 P. d 136 (2006).The double jeopardy clauses of the state and federal constitutions protect a
     3

defendant against multiple punishments for the same offense. U. . CONST. amend. V; WASH.
                                                              S

CONST. art. I, § State
               9;         v. Calle, 125 Wn. d 769, 772, 888 P. d 155 (1995).When analyzing a
                                          2                  2

double jeopardy claim,we first look to the statutory language to determine if it expressly permits

multiple punishments in the applicable statutes. Jackman, 156 Wn. d at 746. If the legislature
                                                                2

authorized cumulative punishments for both crimes, then ,double jeopardy is not implicated.

State v. Freeman, 153 Wn. d 765, 771, 108 P. d 753 (2005).
                        2                  3



25
  Betts also argues that she cannot be held liable for the false statements Stallard made in her
monthly reports filed with the Department of Revenue because (1)Stallard did not intend to
defraud the State; and (2)Betts was not legally accountable for Stallard's conduct because
Stallard was negligent in performing her oversight functions and should have reviewed Betts's
daily REET account reconciliations. Betts appears to misunderstand the nature of her culpability
under the legal accountability provisions of the complicity statute. Under RCW 9A. 8.the
                                                                                    020,  0
State needed to prove that Betts, not Stallard, had the requisite intent to defraud the State or to
evade paying any tax or part thereof. Similarly, Stallard's negligence in overseeing Betts's daily
work is not relevant here because such negligence would only reinforce that Stallard was an
innocent"or "rresponsible"person under RCW 9A. 8.
             i                                 a).
                                               020(  2)(
                                                     0




                                                34
No. 42519 0 II
          - -



        If the statutes do not expressly allow multiple punishments, then we turn to statutory

construction and we apply the "same evidence" test. Jackman, 156 Wn. d at 746. Under the
                                                                   2

same evidence test, if each offense contains an element not contained in the other offense, the

offenses are different for purposes of double jeopardy and the multiple convictions can stand.

Jackman, 156 Wn. d at 747. This test requires the court to determine ""
               2                                                     whether each provision

requires proof of a      fact which the other does not. ""   Jackman, 156 Wn. d at 747 (quoting State
                                                                            2

v. Baldwin, 150 Wn. d 448, 455, 78 P. d 1005 (2003) quoting Blockburger v. United States,
                  2                 3               (

284 U. .299, 304, 52 S. Ct. 180, 76 L.Ed. 306 ( 932))).
     S                                        1

        As a rule of statutory construction, the same evidence test serves as a means of discerning

legislative purpose; but it should not be controlling where there is a clear indication of contrary

legislative    intent.   Calle,   125 Wn. d at 778.
                                        2                Thus, even if the two statutes pass the same

evidence test, the multiple convictions may not stand if the legislature has "` therwise clearly
                                                                              o

indicated its intent that the same conduct or transaction will not be punished under both

statutes. "'   Jackman, 156 Wn. d at 746 ( mphasis omitted) quoting Baldwin, 150 Wn. d at 455-
                              2          e                  (                      2

56).

                               B. First Degree Theft and Money Laundering

         We first turn to the language of the pertinent criminal statutes to determine whether the

legislature expressly authorized multiple punishments for            these acts.       We first note that the

                                                                                                           26
crimes of money      laundering and theft   are   located in different   chapters   of the criminal code        and


serve different purposes, which our Supreme Court has cited to support that the legislature


26
     Compare RCW 9A. 6 ( heft),
                   5 t        with 9A. 3 (
                                     8 money laundering).



                                                       35
No. 42519 0 II
          - -




intended to punish two offenses separately. See, e. .,
                                                  g Calle, 125 Wn. d at 780 (incest and child
                                                                 2

rape are located in different chapters in the criminal code and address different harms).

Furthermore, the      money   laundering   statute    expressly requires   additional   punishment:

Proceedings under this chapter shall be in addition to any other criminal penalties, civil

penalties, or   forfeitures authorized under state law." RCW    020(
                                                                9A. 3.emphasis added).
                                                                   6
                                                                   8 ) (

Accordingly, we hold that (1)the legislature intended to allow cumulative punishments for

money laundering and other criminal offenses, and ( 2)the trial court did not violate the

constitutional prohibitions against double jeopardy by entering Betts's convictions for both first
                                    28
degree theft and money laundering.



27 This provision is analogous to the burglary antimerger language in RCW 9A. 2.which
                                                                          050,
                                                                            5
our Supreme Court has recognized as expressly authorizing cumulative punishments. Calle, 125
Wn. d at 777 n. . RCW 9A. 2.
  2           2       050 provides:
                        5
       Every person who, in the commission of a burglary shall commit any other crime,
       may be punished therefor[e] well as for the burglary, and may be prosecuted
                                   as
       for each crime separately.

28 The result would not be any different under the same evidence test. To commit first degree
theft as charged here, a person must "
                                     wrongfully obtain or exert unauthorized control over the
property or services of another [which exceeds $ , in value],
                                               5000         with intent to deprive him or her
of such property or services." RCW 9A. 6.
                                      a)(
                                      020(         emphasis added);RCW 030(
                                                   1)( 9A. 6.
                                                   5                           a).    1)(
                                                                                      5
In contrast, RCW 9A.83. 20 provides:
                         0
        1) person is guilty of money laundering when that person conducts or attempts
            A
        to conduct a financial transaction involving the proceeds of specified unlawful
        activity and:
               a)  Knows the property is proceeds of specified unlawful activity; or
               b)  Knows that the transaction is designed in whole or in part to conceal or
       disguise the nature, location, source, ownership, or control of the proceeds, and
       acts recklessly as to whether the property is proceeds of specified unlawful
       activity.
Emphasis added). A "inancial transaction"means "a purchase, sale, ... transfer, transmission,
                       f
delivery, trade, deposit, withdrawal,payment, transfer between accounts, exchange of currency,
extension of credit, or any other acquisition or disposition of property." RCW 9A. 3.010(   3
                                                                                            8 )



                                                 36
No. 42519 0 II
          - -



                          VIII. EXCEPTIONAL SENTENCES; LACK OF REMORSE

       Last, Betts argues that we should vacate her exceptional sentences and remand for

resentencing before   a   different trial   judge   because the trial court   improperly " enalized "
                                                                                         p              her for


exercising her trial rights and considered improper reasons when imposing her exceptional

sentences. Betts bases her argument on the trial court's oral comments at sentencing that she had

not . . .   cooperate[d] in "'
                            the investigation of her case, had been given an "` normously
                                                                              e

complicated and expensive trial; "'and lacked remorse. Br. of Appellant at 48, 49 (quoting 8

VRP at 1392).

       The State responds that we should reject Betts's argument because (1)the trial court

clearly stated that it imposed its exceptional sentences based on the jury's special verdict

findings that Betts's first degree theft and money laundering crimes were both major economic




emphasis added).A " pecified unlawful activity"includes class A and B felonies, such as first
                  s
degree theft. RCW 9A. 3.
                    010(   7 RCW 030(
                           8 );9A. 6.            2
                                                 5 ).
       The first degree theft statute includes a specific value as a fact that the State must prove
in addition to proving the underlying conduct of the crime, i. obtaining or exerting
                                                             e.,
unauthorized control       over   the property of another.           RCW      9A. 6. The money
                                                                              a).
                                                                              030(
                                                                                 1)(
                                                                                 5
laundering statute includes an additional requirement that the defendant conducted or attempted
to conduct a "financial transaction" with the proceeds of the specified unlawful activity, here,
first degree theft. Because these statutes each require proof of an element or fact that the other
does not, first degree theft and money laundering do not constitute the same offense under the
same evidence test. We hold, therefore, that Betts's two convictions for these two crimes do not
constitute double jeopardy.

29 Br. of Appellant at 48.



                                                          37
No. 42519 0 II
          - -



offenses or series of offenses under RCW 9.
                                         d)
                                         535( 4A. (2)
                                            3)(
                                            9    and although "unfortunate,"
                                                                           the
trial court's passing comments referencing Betts's exercise of her jury trial rights were not the

basis for her exceptional sentences because the trial court "specifically acknowledge[d] it
                                                                                       that

could not take those facts into consideration at sentencing."Br. of Resp't at 34.

          Although we agree with the State that the trial court properly relied on the jury's two
                                                                    31
special   verdicts when   imposing   Betts's   exceptional sentences, we also agree with Betts that the

record shows that the trial court improperly considered her lack of remorse"when it imposed
                                                                    "

these sentences.    Because this error was not harmless beyond a reasonable doubt, we vacate

Betts's   exceptional   sentences.   We also grant Betts's request for resentencing before a new

judge.

                                         A. Standard of Review


          A court may impose an exceptional sentence above the standard range if it finds

substantial and compelling reasons"for doing so and those reasons support the purposes behind



30 The Legislature has amended this statute several times since 2003, including the amendments
in .2005, which required that "major economic offense" and " egregious lack of remorse"
aggravating factors be submitted to a jury rather than decided by a trial court judge. Because this
provision has not changed in substance since the 2005 amendments, we cite the current version
of the statute.


31 At sentencing the trial court mentioned Betts's lack of cooperation with the County's
                                                enormously complicated and expensive. "' Br.of
investigation and noted that her trial had been "`
Appellant at 48, 49 (quoting 8 VRP at 1392). As the State acknowledges.in its brief, These "
references are unfortunate, and if relied upon by the trial court would form an improper basis for
the sentence."Br. of Resp't at 34. We note that, in imposing her exceptional sentences, the trial
court explicitly recognized that (1)Betts had "an absolute right to remain silent" and "an
absolute right to a jury trial," (2)she "cannot be punished for exercising those rights." 8
                               and
VRP   at    1391 92.
                 -  Therefore, we decline to presume that these " unfortunate" comments
penalized"Betts in the manner that she asserts. Br. of Appellant at 48.



                                                      38
No. 42519 0 II
          - -



the Sentencing Reform Act. RCW 9. State v. Davis, 146 Wn. App. 714, 719, 192 P. d
                               535;
                                94A.                                          3

29 (2008).We review exceptional sentences under a three part test, considering: 1)
                                                        -                       ( whether the

record supports the reasons for departure under a clearly erroneous standard, 2)
                                                                              ( whether those

reasons justify the departure as a matter of law, and (3)whether the exceptional sentence was

clearly too excessive or lenient under an abuse of discretion standard. State v. 411ert, 117
Wn. d 156, 163, 815 P. d 752 (1991).
  2                  2

                                         B. Exceptional Sentences

         In its written findings of fact and conclusions of law, the trial court found that ( ) jury
                                                                                            1 the

had returned two special verdicts finding that Betts's first degree theft and .money laundering

crimes each constituted "a major economic offense or [ a] series of offenses" under RCW

d);
535( 4A. 2) these] aggravating(
9. 3)(
   9        "[                circumstances                            separately   considered   and


affirmatively found to exist by the jury... for the Court to impose an exceptional sentence
                                         allow
                              34 (
above the standard range";           3)Betts's first degree theft conviction was the highest ranked

offense at sentencing; ( ) had occurred over a lengthy period of time and had involved (a)
                       4 it

monetary losses substantially greater than the $ 000 required for the crime; b) high degree of
                                               5,                            ( a

sophistication; and ( c) Betts's repeatedly violating her position of trust and fiduciary



32 Because Betts does not argue that the trial court abused its discretion in imposing her
exceptional sentence above the standard range, we do not address the third prong of the test —
whether the length of the trial court's exceptional sentence was permissible. We do, however,
address the first and second prongs of the test.
33
     CP at 14 (FF 3,4).
34
     CP at 15 (FF 5).




                                                    39
No. 42519 0 II
          - -



                                          35
responsibility   to   perpetrate the crime;    and (5)these factors were "substantial and compelling
                                                          36
reasons"to   depart from the    standard range sentence.


       Betts does not dispute that her first degree theft and money laundering offenses were

major economic offenses or series of offenses within the meaning of RCW 9.
                                                                        d).
                                                                        535( 4A.
                                                                           3)(
                                                                           9

Nor does she dispute the trial court's written findings,which are verities on appeal. Stenson, 132

Wn. d at 697; State v. Schmeck, 98 Wn. App. 647, 650 51,990 P. d 472 (1999).We agree that
  2                                                  -       2

these reasons for the trial court's exceptional sentence are supported by the record and justify

departure from the standard range as a matter of law. Nevertheless, this conclusion does not end

our inquiry into the propriety of Betts's exceptional sentences.

       When imposing Betts's exceptional sentences, the trial court orally stated that it "
                                                                                          must

factor"Betts's lack of remorse"into its sentencing decision. 8 VRP at 1390 (emphasis added).
                       "

But under RCW 9.
              q),
              535( 4A.a defendant's egregious lack of remorse" is an aggravating
                 3)(
                 9                   "

factor that only a jury may determine; our legislature has not authorized the trial court to make

this determination. RCW 9.
                        q).
                        535( 4A. Consistent with RCW 9.
                           3)(
                           9                         q),
                                                     535( 4A.the United
                                                        3)(
                                                        9

States Supreme Court has also held that the Sixth Amendment to the United States Constitution

requires any fact that increases the penalty for a crime beyond the prescribed statutory maximum

other than the fact of a prior conviction) to be submitted to the jury and proved beyond a

reasonable doubt. Blakely v. Washington, 542 U. . 296, 301, 303 04, 124 S. Ct. 2531, 159 L.
                                              S                 -

Ed. 2d 403 ( 2004).        Again, here, the jury was not asked to address this "lack of remorse"



31 CP at 15 16 (
            - CL 7, 8).We review a finding of fact as such, even if erroneously labeled a
conclusion of law. State v. Ross, 141 Wn. d 304, 309 10,4 P. d 130 (2000).
                                        2            -     3




                                                     IN
No. 42519 0 II
          - -



aggravating factor. We hold, therefore, that the trial court violated Betts's Washington statutory

and federal constitutional rights to have a jury determine lack of remorse before the trial court

may impose an exceptional sentence based on this factor. RCW 9.
                                                             q);
                                                             535( 4A.Blakely, 542
                                                                3)(
                                                                9

U. . at 303 04.
 S          -


         To affirm Betts's exceptional sentences, we must be convinced that the trial court would

have imposed the same sentences even if it had not considered her lack of remorse. State v.

Jackson, 150 Wn. d 251, 276, 76 P. d 217 (2003).We acknowledge the trial court's extensive
               2                 3

recitation of compelling factors, including the extreme amount of money (more than half a

million dollars)that Betts stole from the County while abusing the public trust for several years,

which clearly supported an upward departure from a standard range sentence for Betts. But the

trial court expressly stated that, if Betts had admitted guilt, shown remorse, or avoided a lengthy

and   expensive trial, her   situation at   sentencing would             considerably better "; thus, we
                                                               have been "


are not persuaded beyond a reasonable doubt that Betts would have received the same

exceptional sentences absent the trial court's statutorily unauthorized consideration of her lack of

remorse. 8 VRP at 1392. Accordingly, we vacate Betts's exceptional sentences and remand for

resentencing.

         Finally, we consider Betts's request that we remand for resentencing before a different

judge.    Because we vacate the exceptional sentences based on the trial court's improper

consideration of a factor that the legislature has provided only the jury can decide, we do not

address another ground that Betts asserts to justify resentencingthe trial court's statements



36 CP at 15 (CL 7).


                                                      41
No. 42519 0 II
          - -



that, if Betts had admitted guilt or avoided a lengthy and expensive trial, her situation at

sentencing would     have been "considerably better." 8 VRP at 1392. As the trial court itself


acknowledged, Betts's objectionsthat these comments impinged on her having exercised her

Fifth Amendment right to remain silent and her Sixth Amendment right to a jury trialmade her
                                                                                    —

situation at   sentencing considerably          worse.   These constitutional claims are likely to delay

resolution of this   case   if   we   do not   respond   to them    now.       Thus, in the interests of judicial

economy and in furtherance of a timely and apparently fair resolution of Betts's sentencing
                                                                                      37
issues, we grant her request for resentencing before          a   different judge.


                                                   SANCTIONS


       RAP     a)
               18. (                  The appellate
                 9 provides, in part: "                           court   on   its   own   initiative ...   may order. .

 counsel ...   who ...   fails to     comply   with these rules ...    to pay sanctions to the court."Betts's

appellate counsel, Jordan McCabe,has blatantly violated our appellate rules in several significant

respects, each of which warrants the imposition of sanctions under RAP 18. (RAP 10. also
                                                                       a). 7
                                                                         9

provides, The appellate
          "                  court     will   ordinarily impose    sanctions     on ...      counsel for a party who

files a brief that fails to comply with these rules."




37 In so doing, we do not imply that the trial court, who has announced his retirement, would not
be fair on resentencing. Nevertheless, we are mindful of the judicial canons's emphasis on the
appearance of fairness," well as actual fairness. CJC 1. ( A judge shall act at all times in a
                       as                              2 "
manner that promotes public confidence in the independence, integrity, and impartiality of the
judiciary, and shall avoid impropriety and the appearance of impropriety. "). By remanding to a
different judge for resentencing, we remove any contention about judicial impartiality from
further debate:



                                                         42
No. 42519 0 II
          - -



                             I. CITATION OF UNPUBLISHED OPINION


       RAP 10. (
           a)(requires the argument portion of an appellate brief to include " itations to
             6)
             3                                                               c

legal authority." But in her brief of appellant, counsel cites 'unpublished portions of two

appellate decisions, contrary to GR 14. (
                                    a),
                                      1 which provides:

       A party may not cite as an authority an unpublished opinion of the Court of
       Appeals. Unpublished opinions of the Court of Appeals are those opinions not
       published in the Washington Appellate Reports.

See Br.of Appellant at 44 45,49 (citing unpublished portions of State v Dingman, 149 Wn.App.
                          -

648, 202 P 3d 388 (2009), support her double jeopardy argument; and State v. Radcliffe, 139
                        to

Wn.App. 214, 159 P. d 486 (2007), support her exceptional sentence " enalizing"argument).
                  3             to                                 p

For each of these two violations, we impose a $ 0 sanction, for a total of 100.
                                              5                            $

                        II. MATERIAL MISREPRESENTATIONS ON APPEAL


                                           A. Written


       RAP 10. (
           a)(requires the argument portion of an appellate brief to include " eferences
             6)
             3                                                               r

to relevant   parts of the record." Rule of Professional Conduct 33(
                                                                 1),
                                                                   a)(
                                                                     entitled "CANDOR

TOWARD THE TRIBUNAL,"provides that a lawyer shall not knowingly "make a false

statement of fact or law to a tribunal."Here, appellate defense counsel, Jordan McCabe, made at

least two false statements of fact in her briefing filed with our court: Counsel misrepresented the

record at pages 9 and 12 of her brief of appellant, asserting that she "requested a change of

venue" and that the " rial court said it would deny the motion."Br. of Appellant at 9, 12 (citing
                    t

VRP at 63, 65, respectively). The record does not support these factual assertions. For these

material written misrepresentations to the court, we impose a $ 00 sanction.
                                                              1




                                                BE
No. 42519 0 II
          - -



                                                     B. Oral


       McCabe similarly and repeatedly misrepresented to this court at the April 1, 2013 oral
argument that trial counsel had moved the trial court for a change of venue and that the trial court

had denied her motion.      More specifically, McCabe stated that trial counsel had informed the

trial court that she intended to file a motion to change venue, but that the trial court had flatly

stated "don't bother"and that, despite pretrial publicity," (he trial court)was "convinced it
                               "                          it t

      be able to seat
would "                    an    impartial jury. "     During oral argument, our court (1)explained our

understanding that, although Betts' trial counsel had mentioned a change of venue to the trial

court, trial counsel had never followed through with a written or oral motion; and (2)asked

counsel where in the record it showed that she had actually moved for a change of venue below.

McCabe again replied that the trial court had stated that trial counsel need not file a motion to

change venue because it would be a "futile act."Oral Argument, supra, at 2 min., sec. Our
                                                                               30

court repeatedly challenged McCabe at oral argument to support these assertions with citation to

the record. Although McCabe continued to make these assertions, she pointed to no support in

the record. Nor could she because the record shows that the trial court never said what counsel


represented it had said.

       The record shows that Betts never moved for a change of venue below and that the trial

court never denied such a motion. Instead, the record shows that when the State mentioned that

Betts might seek a change of venue, the trial court asked Betts's counsel whether she intended to



38 Wash. Court of Appeals oral argument, State v. Betts, No. 42519 0 II ( pril 1, 2013),at 1
                                                                   - - A
    57
min.,       2
         sec. —       14
                  min.,             on
                                sec. (   file with   court).
No. 42519 0 II
          - -



file a motion for change of venue based on pretrial publicity; and counsel replied, Yes, your
                                                                                    "

honor." 1 VRP at 61. After explaining that it normally waited to see whether it could impanel

an impartial jury before deciding such motions, the trial court told Betts to "go ahead and file"

her motion and that it (he court)would address the motion before trial; counsel responded, We
                       t                                                                   "

will."1 VRP at 65. But nowhere does the record show that counsel ever filed a motion to


change venue in the trial court or raised the venue issue again, not pretrial or even during or after

jury selection.

       Nevertheless, at oral argument before us on appeal, defense counsel persisted in asserting

that Betts had moved to change venue below and that the trial court had said the filing of a

motion to   change   venue   would be futile.        Even when the panel explained its contrary

understanding of the record and gave counsel an opportunity to check the record and to correct

her assertions, she persisted in attempting to mislead the court. Giving counsel the benefit of the

doubt, we do not believe that these misrepresentations were intentional. Nevertheless, even if we

assume that these misrepresentations were the result of carelessness, they were inexcusable,

especially in light of the panel's expressed incredulity about counsel's claims and her refusal or

inability to check their accuracy. For these repeated blatant oral misrepresentations to the court,

we impose sanctions of 150.
                       $




                                                 L
No. 42519 0 II
          - -



       We affirm Betts's convictions, vacate her exceptional sentences, and remand for

resentencing by a different judge. We also impose $
                                                  350 in total sanctions against her appellate

counsel, Jordan B.McCabe, payable to the registry of this court.

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

Washington Appellate Reports, but will be filed. for public record in accordance with RCW

040,
2.6.it is so ordered.
 0
                                                           r




                                                 Hunt,J.
We concur:




      Brintnall, J.
