                                                                            FILED
                                                                         JUNE 23, 2020
                                                                 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

HARLAN D. DOUGLASS & MAXINE                   )         No. 36134-9-III
H. DOUGLASS, husband and wife,                )
                                              )
                     Respondents,             )
                                              )
              v.                              )         UNPUBLISHED OPINION
                                              )
BRYAN J. REILLY, an individual, and           )
DOES 1-10,                                    )
                                              )
                     Appellant.               )

       PENNELL, C.J. — Bryan Reilly appeals a jury verdict finding him liable for

unlawfully converting property owned by his former employer, Harlan Douglass.

We affirm.

                                          FACTS1

       Harlan Douglass is a wealthy real estate developer who owned a home and acreage

in Colbert, Washington. As a result of childhood experiences during the great depression,


       1
          Given the nature of the claims raised on appeal, the following facts are presented
in the light most favorable to the Douglasses, who prevailed at trial. Strange v. Spokane
County, 171 Wn. App. 585, 592, 287 P.3d 710 (2012).
No. 36134-9-III
Douglass v. Reilly


Mr. Douglass developed a mistrust of banks and had a habit of stashing away large sums

of cash in shoeboxes, hidden inside the family home. The cash was primarily large-

denomination bills. By 2014, Mr. Douglass had amassed four boxes full of cash. A tally

of one of the boxes added up to $264,900. Given the boxes all appeared similar in size

and content, it was estimated the four boxes contained approximately $1 million.2

       In addition to the cash, Mr. Douglass kept other valuables in his home, including

diamond rings, gold coins, and Rolex watches.

       Bryan Reilly grew up near Mr. Douglass and his family socialized with the

Douglasses. When Mr. Reilly entered his teenage years, he began performing odd jobs

for the Douglasses and was paid through the family business. Mr. Reilly’s tasks included

retrieving mail, letting workers in for repairs, interacting with housekeepers, and

generally protecting Mr. Douglass’s house. Mr. Reilly was entrusted with a remote

control letting him open the gate leading to Mr. Douglass’s house and a garage door

opener. Tax records for 2013 and 2014 indicate Mr. Reilly had an income of less than

$10,000 per year.

       In 2013, Mr. Reilly began purloining money and absconding with other valuable

items from the Douglass residence, then selling the items for cash. In March 2014, Mr.


       2
           A second box was counted, but there was no written tally.

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Douglass v. Reilly


Reilly obtained two diamond rings, which he then sold for $20,300.3 In December 2013,

Mr. Reilly appropriated two Rolex watches, which were sold for $9,300.4 Mr. Reilly’s

bank records indicate he deposited money from the sale of Mr. Douglass’s valuables into

his bank account and then used the funds in his account to secure loans and purchases of

high-end vehicles and boats. Throughout 2013 and 2014, Mr. Reilly’s illegal conduct

went undetected.5

       At some point in early 2015, Mr. Reilly arranged for a housekeeper to begin

cleaning the Douglass home. During one of the cleaning sessions, the housekeeper

stumbled upon Mr. Douglass’s shoeboxes full of cash. The discovery made the

housekeeper nervous. She immediately placed calls to Mr. Reilly and Mr. Douglass.

Mr. Reilly was the first to respond. He advised he knew about the shoeboxes and he urged

the housekeeper not to tell Mr. Douglass about her discovery. The housekeeper did not


       3
          At trial, Mr. Reilly claimed Mr. Douglass gave him one of the rings and he found
the other one (the more expensive one) on the side of the road. This testimony was
inconsistent with the testimony from the jeweler who purchased the two rings. The
jeweler testified that Mr. Reilly claimed to have inherited the rings. The jury was entitled
to reject as not credible Mr. Reilly’s inconsistent statements about how he obtained the
rings.
        4
          At trial, Mr. Reilly claimed Mr. Douglass gave him the two watches. He told the
jeweler who purchased the watches that they had been inherited. The jury was free to
reject Mr. Reilly’s inconsistent statements as not credible.
        5
          In addition to the rings and watches, Mr. Reilly admitted to selling several of
Mr. Douglass’s gold coins. Mr. Reilly claims he had permission to make these sales.

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No. 36134-9-III
Douglass v. Reilly


comply. The housekeeper informed Mr. Douglass of what she had found and requested

the money be secured in a safe.

       After the housekeeper’s discovery, the shoeboxes were moved to a safe deposit

box. Meanwhile Mr. Douglass commissioned a custom safe for his valuables. Upon

completion, the safe was placed in Mr. Douglass’s basement. Mr. Douglass’s son and

daughter-in-law helped move the shoeboxes of money into the safe. Mr. Douglass had a

difficult time with the safe’s combination. The combination code was written on a sticky

note and placed in a medicine cabinet. At some later point, it appears the sticky note with

the combination was relocated to a kitchen counter top.

       In September 2015, Mr. Douglass left town for a trip to Paris. During his absence,

Mr. Reilly was tasked with facilitating the installation of a security system in the

Douglass home. Once armed, the security system’s use of different key fobs and pass

codes would enable Mr. Douglass to track various authorized individuals who came and

went from his home. Mr. Reilly received a fob as an authorized individual, as did

members of Mr. Douglass’s family. According to the alarm company, Mr. Douglass’s

alarm system was fully operable and set to go live on September 24, 2015.




The jury was free to find this claim not credible.

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No. 36134-9-III
Douglass v. Reilly


        On September 24, 2015, Mr. Reilly contacted the housekeeper and asked her to

perform a last-minute cleaning. Mr. Reilly told the housekeeper he would meet her at the

house on September 25 to explain the new alarm system. Because of the scheduled house

cleaning, Mr. Reilly did not activate the house alarm on September 24. However, Mr.

Reilly did not show up on the 25th as planned. The housekeeper proceeded to clean the

house and left around noon or 1:00 pm. The house was not armed when the housekeeper

left.

        Mr. Reilly left his parents’ home at 2:00 pm on September 25. At approximately

5:02 p.m.,6 Mr. Reilly arrived at Hills Resort in Priest Lake, Idaho. A direct trip from

Colbert to Hills Resort would typically last 1.5 hours. September 25 was a Friday. Mr.

Reilly spent the weekend at Hills Resort.

        On Saturday, September 26, Mr. Douglass’s home was discovered to have been

burglarized. The safe was open and the shoeboxes of cash were missing. A detective

dispatched to the scene found the circumstances suspicious. There was no evidence of

forced entry. A house window had been left open, but the placement of the window

screen indicated the window had been opened from inside, not outside. The detective


        6
        Mr. Reilly presented the jury with evidence that he arrived at 4:02 p.m. The jury
was not required to accept this information and was free to accept testimony from Mr.
Douglass’s forensic expert that the actual arrival time was 5:02 p.m.

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No. 36134-9-III
Douglass v. Reilly


surmised the burglary was an inside job. According to the detective, the only potential

insiders were Mr. Douglass’s son, his daughter-in-law, the house cleaner, and Mr. Reilly.

The detective’s subsequent investigation ruled out all of the aforementioned insiders

except for Mr. Reilly.

       Mr. Reilly met with Mr. Douglass’s son and daughter-in-law after he returned

home from Hills Resort. The three decided to investigate the grounds surrounding Mr.

Douglass’s property to see if the intruder left any evidence. A search took place on

Sunday, September 27, with no results. On Monday, September 28, Mr. Reilly went out to

Mr. Douglass’s property with his four-wheeler. He sent a text message to Mr. Douglass’s

daughter-in-law, advising he had spotted an unoccupied vehicle parked near the Douglass

house. Mr. Reilly later called Mr. Douglass’s daughter-in-law to report he found a

shoebox lid bearing a note with a tally of funds. The lid clearly came from one of Mr.

Douglass’s cash boxes. The son and daughter-in-law soon arrived at the property to help

investigate.

       Once Mr. Douglass’s son and daughter-in-law caught up with Mr. Reilly, the three

began searching the area around where Mr. Reilly said he found the shoebox lid. Nothing

was discovered. It was beginning to get dark. Mr. Douglass’s son and daughter-in-law

indicated they were going to leave, but Mr. Reilly said he wanted to check one more area.


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No. 36134-9-III
Douglass v. Reilly


Shortly thereafter, Mr. Reilly came back toward Mr. Douglass’s son and daughter-in-law,

yelling he had found something. He claimed he could see “50s and 100s.” Report of

Proceedings (RP) (Apr. 25, 2018) at 1595. Mr. Reilly then accompanied Mr. Douglass’s

son and daughter-in-law to the site of his alleged discovery.

       At the discovery site, Mr. Douglass’s son and daughter-in-law could see a white

plastic bag, buried in pine needles. The bag looked like it might contain garbage. No

money was visible. Mr. Reilly insisted they look inside the bag. Mr. Douglass’s daughter-

in-law poked into the bag and still saw nothing. Only after it was torn open was it

possible to see the bag contained a large amount of money. According to a later tally, the

money in the bag totaled $357,252. Mr. Douglass’s family surmised the money in the bag

came from one of the stolen boxes. The remaining cash was never recovered.

                                      PROCEDURE

       Mr. Douglass sued Mr. Reilly for conversion by theft of the money from the safe.

The complaint was later amended to include charges of conversion by theft of other

property on numerous occasions from 2013 through 2015.

       During the pretrial phase of the case, the trial court made two rulings pertinent to

this appeal. First, the court denied Mr. Reilly’s motion to bifurcate the multiple

conversion claims. Second, the court granted Mr. Douglass’s motion in limine to preclude


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Douglass v. Reilly


evidence that Mr. Reilly had not been criminally charged with theft. In granting the

motion, the court noted it would also “probably” sustain an objection to any testimony

that Mr. Reilly had been charged criminally, should such evidence be elicited at trial.

RP (Apr. 6, 2018) at 85-86.

       The trial proceedings lasted three weeks. During trial, Mr. Douglass’s attorney

asked Mr. Reilly’s mother if she was aware Mr. Reilly had been charged with six felonies

“associated with the theft of property from Harlan and Maxine Douglass.” RP (Apr. 17,

2018) at 238. Mr. Reilly immediately objected to this question and moved for a mistrial

on the grounds that Mr. Douglass violated a previous court order on the motion in limine.

The trial court sustained Mr. Reilly’s evidentiary objection but denied the mistrial motion.

       At the close of Mr. Douglass’s case-in-chief, Mr. Reilly made a motion for a

directed verdict as to the theft from the safe, arguing insufficient evidence. The trial court

denied the motion.

       The jury returned a verdict in favor of Mr. Douglass. In regard to the theft from the

safe, the jury found Mr. Reilly had converted cash in the amount of $605,148.

       Mr. Reilly timely appeals.




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                                          ANALYSIS

Sufficiency of the evidence

       Mr. Reilly contends the trial court erroneously denied his motion for a directed

verdict under CR 50(a)(1) because Mr. Douglass failed to produce sufficient evidence

that he converted money from Mr. Douglass’s safe. Reviewing the record de novo,

Paetsch v. Spokane Dermatology Clinic, P.S., 182 Wn.2d 842, 848, 348 P.3d 389 (2015),

we disagree.

       To establish conversion, a plaintiff must prove, by preponderance of the evidence,

that the defendant: (1) willfully interfered with chattel, (2) the interference was without

lawful justification, (3) the plaintiff was entitled to the chattel, and (4) the plaintiff was

deprived possession of the chattel due to the interference. Pub. Util. Dist. No. 1 of Lewis

County v. Wash. Pub. Power Supply Sys., 104 Wn.2d 353, 378, 705 P.2d 1195, 713 P.2d

1109 (1985). In short, “conversion means to take and keep another’s property.” Repin v.

State, 198 Wn. App. 243, 270, 392 P.3d 1174 (2017). Money, just like any other piece of

property, can be the subject of a conversion action so long as it is capable of

identification. Westview Investments, Ltd. v. U.S. Bank Nat. Ass’n, 133 Wn. App. 835,

852, 138 P.3d 638 (2006). Circumstantial evidence can support a claim of conversion, so




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No. 36134-9-III
Douglass v. Reilly


long as inferences from the circumstantial evidence are reasonable. See Arnold v. Sanstol,

43 Wn.2d 94, 99, 260 P.2d 327 (1953).

       From the evidence at trial, it was entirely reasonable to conclude Mr. Reilly was

the person responsible for taking Mr. Douglass’s cash-filled shoeboxes. Mr. Reilly had an

ongoing practice of stealing from Mr. Douglass, he had unmonitored access to the

shoeboxes at the time of the theft, and he exhibited suspicious knowledge about where to

recover a portion of the stolen cash after the theft was complete.

       In addition to its liability determination, the jury’s loss calculation was justified by

competent, nonspeculative evidence. A fair inference from the trial evidence was that the

shoeboxes contained at least $1 million in cash. Of that sum, $357,252 was recovered.

Subtracting the recovered funds from the original total, the jury’s award of $605,148 was

a conservative loss estimate. Given the manner in which Mr. Douglass had stored his

money, mathematical precision was not required. Kwik-Lok Corp. v. Pulse, 41 Wn. App.

142, 150, 702 P.2d 1226 (1985). The jury’s assessment must stand.

Motion to bifurcate

       The trial court did not abuse its discretion in denying Mr. Reilly’s motion to

bifurcate the 2015 conversion claim (pertaining to the shoeboxes) from the other

conversion claims. The earlier thefts were prior acts relevant to proving the 2015 theft


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No. 36134-9-III
Douglass v. Reilly


based on a common plan and motive. ER 404(b). Mr. Reilly complains that evidence of

the pre-2015 acts of conversion was prejudicial. True enough. But the prejudice arises

from the strong probative value of the pre-2015 acts, not any improper character

implications. Because the prior acts were highly relevant to proving the theft of the 2015

conversion claim, joinder was proper. CR 42.7

Violation of motion in limine and request for mistrial

       Although we agree with Mr. Reilly that Mr. Douglass’s attorney improperly

questioned Mr. Reilly’s mother about the existence of criminal charges, the trial court did

not abuse its discretion in denying the mistrial motion. Regardless of whether counsel’s

question violated an in limine order, the propriety of a new trial turned on the question of

prejudice. Aluminum Co. of America v. Aetna Cas. & Sur. Co., 140 Wn.2d 517, 540,

998 P.2d 856 (2000). Here, there was none. Counsel’s improper question was an isolated

incident in a lengthy trial. Mr. Reilly’s objection was sustained and the subject was not

explored further. There was uncontested trial evidence suggesting Mr. Reilly could face

criminal charges, including testimony from the lead detective that Mr. Reilly was the only

suspect who had not been ruled out as a possible perpetrator. Given the totality of these


       7
        Prior act evidence is substantive evidence, not impeachment evidence. ER 609 is
inapplicable.


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No. 36134-9-III
Douglass v. Reilly


circumstances, the lone impropriety attributed to Mr. Douglass’s counsel did not deprive

Mr. Reilly of a fair trial. We will therefore respect the jury’s verdict.

                                      CONCLUSION

       The judgment is affirmed. Mr. Reilly’s request for attorney fees is denied.

       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.

                                            _________________________________
                                            Pennell, C.J.

WE CONCUR:



______________________________
Korsmo, J.



______________________________
Fearing, J.




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