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




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

 STATE OF WASHINGTON,                             )     No. 36053-9-III
                                                  )
                        Respondent,               )
                                                  )
        v.                                        )     UNPUBLISHED OPINION
                                                  )
 KENNETH K. KNAPP, JR.,                           )
                                                  )
                        Appellant.                )

       SIDDOWAY, J. — Kenneth Knapp appeals his conviction for first degree theft,

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

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

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

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

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

for a retrial of the first degree theft charge.
No. 36053-9-III
State v. Knapp


                     FACTS AND PROCEDURAL BACKGROUND

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

degree theft and forgery. Adult Protective Services had made a referral that Kenneth1

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

mother, Geraldine Knapp.

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

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

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

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

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

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

living in the house with her.

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

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

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

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

into Geraldine’s home.




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

                                            2
No. 36053-9-III
State v. Knapp


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

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

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

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

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

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

months earlier, in May.

       Vicki initiated guardianship proceedings and, after being appointed guardian,

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

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

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

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

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

ultimately resulted in the charges against Kenneth.

       Kenneth waived his right to a jury trial of the charges, and the matter proceeded to

a two-day bench trial. The State’s first witness was Detective Behymer, and early in her

testimony the prosecutor had her identify and describe the bank record exhibits whose

admission is challenged on appeal. Detective Behymer in each case briefly described the

exhibits and testified that they were accurate copies of documents that North Cascades



                                             3
No. 36053-9-III
State v. Knapp


National Bank (NCNB) produced in response to search warrants. When the exhibits were

then offered, Kenneth’s lawyer raised the following objections:

          Description              Objections made

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

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

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

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

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



      2
          Report of Proceedings.

                                                4
No. 36053-9-III
State v. Knapp


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

       The trial court overruled the objections. Particularly after defense counsel

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

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

records.

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

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

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

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

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

week later to announce its findings and verdict that Kenneth was guilty as charged.

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

only his conviction for first degree theft.

       After Kenneth filed his opening brief, the State chose not to submit a brief, filing,

instead, a motion for remand. Its motion stated that it could “not defend the admission of

the bank records without a Custodian of Records.” Resp’t’s Mot. for Remand to Trial Ct.

for a New Trial at 2.


                                              5
No. 36053-9-III
State v. Knapp




                                         ANALYSIS

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

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

witness did not testify about their identity, mode of preparation, and whether they were

prepared in the course of ordinary business.

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

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

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

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

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

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

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

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

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

(1983).

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

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

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

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

                                               6
No. 36053-9-III
State v. Knapp


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

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

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

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

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

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

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

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

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

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

exception to the hearsay rule.

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

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

for NCNB was required.

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

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

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

Kenneth of an opportunity to reply.

       Kenneth additionally assigns error to the court’s imposition of a criminal filing

fee, claiming indigence. Because we reverse the first degree theft conviction and remand

                                              7
No. 36053-9-III
State v. Knapp


for a new trial, we leave it to the trial court to address the application of the criminal

filing fee at the time it enters a new judgment and sentence.

       We reverse the first degree theft conviction and remand for proceedings consistent

with this opinion.

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

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

2.06.040.


                                                      &aWi~1ft·
                                                       doway,J.

WE CONCUR:




Q_
Pennell, A.CJ.




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