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          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


STATE OF WASHINGTON,                             NO. 69952-1-


                     Respondent,                 DIVISION ONE

                     v.



SAMANTHA JEAN PIERCE,                            UNPUBLISHED OPINION

                     Appellant.                  FILED: July 28, 2014



       Lau, J. — Samantha Pierce appeals her conviction of first degree theft,

challenging the admission of (1) an exhibit summarizing thousands of financial

transactions in addition to the charged conduct and (2) the victim's videotaped

deposition. Because Pierce fails to establish any abuse of discretion, we affirm.

       In the summer of 2005, 89-year-old G. John Doces hired Samantha Pierce as a

live-in care provider and later as a personal assistant for himself and his wife Sophia.

After Sophia died in February 2007, Pierce continued as Doces's personal assistant. In

September 2007, Doces opened a joint bank account and credit card account with

Pierce. Doces's family members became increasingly concerned about Pierce's access

to and use of his accounts. On June 11, 2009, the family members obtained a

vulnerable adult protection order against Pierce and reported her activities to the police.
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       The State charged Pierce with one count of first degree theft based on a series of

transactions occurring between September 25, 2007 and June 11, 2009. The State

also alleged two aggravating factors: (1) Pierce knew or should have known that Doces

was particularly vulnerable or incapable of resistance and that vulnerability was a

substantial factor in the commission of the offense and (2) Pierce used her position of

trust, confidence, or fiduciary responsibility to facilitate the commission of the offense.

       Prior to trial, the State indicated an intention to introduce summaries of bank

records that included thousands of transactions in addition to the 273 transactions

making up the criminal offense. Pierce moved to exclude the summaries as more

prejudicial than probative, cumulative of witness testimony, and confusing. The State

argued that the additional financial transactions were relevant as res gestae and to

show opportunity, intent, and plan. The court denied her motion to exclude the

evidence but invited Pierce to propose a limiting instruction.

       At a pretrial hearing, the court also determined that Doces, now 96 years old,

was incompetent to testify. The State sought to introduce a videotaped deposition of

Doces from October 2011. Pierce objected, arguing that Doces was not competent at

the time of the deposition and that he lacked personal knowledge of the events to which

he testified in the deposition. After viewing the deposition, the court ruled that it was

admissible.

       At trial, the State presented the testimony of financial analyst Rebecca Tyrell,

who testified at length about her review of over 3,000 pages of bank records. Tyrell

showed a series of slides to the jury summarizing the extent and types of accounts

Doces held between 2003 and 2009. Tyrell traced changes in spending habits from the
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various accounts over time and compared average spending in various categories

before Doces hired Pierce, after Pierce began working in the Doces household, and

after Pierce became a signer on certain accounts. Tyrell displayed examples of checks

written and items purchased during the different time frames. Tyrell also described

sources of funds and various transfers between accounts. In her testimony, Tyrell

described the organization of exhibit 93, three binders containing the records of the 273

transactions forming the basis of the criminal charges. Tyrell also described exhibit 94,

a notebook containing the spread sheets she created showing every transaction for

each bank and credit card account over specified time periods. The trial court admitted

exhibit 94 into evidence and allowed the State to publish it to the jury.

        The trial court instructed the jury:

               The State's charges allege only those transactions that are included in
       State's Exhibit #93.
               Other transaction evidence, not included in State's Exhibit #93, has been
       admitted in this case for the limited purpose of considering the defendant's
       opportunity, intent, and plan. You may not consider it for any other purpose.
              This evidence of other transactions that are not part of the State's
       charges, and are not included in State's exhibit #93. Any discussion of this
       evidence during your deliberations must be consistent with this limitation.

       The State also presented Doces's videotaped deposition for the jury as exhibit

97. The jury found Pierce guilty of first degree theft. Pierce appeals.

                                          ANALYSIS

       Pierce first contends that the trial court erred by admitting exhibit 94 because it

was unduly prejudicial under ER 403. As below, Pierce argues that exhibit 94 was

cumulative to Tyrell's testimony, overwhelming in volume, and likely to confuse and

distract the jurors.



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       We will not reverse the trial court's decision as to the admissibility of evidence

absent an abuse of discretion, "which 'occurs only when no reasonable person would

take the view adopted by the trial court.'" State v. Atsbeha. 142 Wn.2d 904, 914, 16

P.3d 626 (2001) (quoting State v. Ellis. 136 Wn.2d 498, 504, 963 P.2d 843 (1998)).

Relevant evidence "may be excluded if its probative value is substantially outweighed

by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by

considerations of undue delay, waste of time, or needless presentation of cumulative

evidence." ER 403. Unfair prejudice "means an undue tendency to suggest a decision

on an improper basis—commonly an emotional one." State v. Cronin. 142 Wn.2d 568,

584, 14 P.3d 752 (2000).

       The record reveals that the trial court carefully considered Pierce's arguments

and reviewed all the financial transaction summaries as well as the case law identified

by the parties. The court also carefully described its reasoning in a thorough oral ruling.

The court specifically determined that the summaries in exhibit 94 would assist the jury

in its consideration of Tyrell's testimony. Pierce does not challenge the admissibility of

Tyrell's testimony or its relevance to establish Pierce's role in the household accounts.

And the court minimized any potential for distraction and confusion by giving a proper

limiting instruction. Jurors are presumed to follow the court's instructions. State v.

Ervin, 158 Wn.2d 746, 756, 147 P.3d 567 (2006). Pierce fails to establish any abuse of

discretion.


       Pierce also claims the trial court abused its discretion by admitting Doces's

deposition, claiming that his testimony was not based on personal knowledge, in

violation of ER 602. In particular, Pierce identifies several incidents that Doces said he


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did not recall, such as how he met Pierce, how long she worked for him, how much he

paid her, whether he had a joint account with her, whether he shopped at Eddie Bauer

or other specific stores, or whether he remembered spending $17,000 at Eddie Bauer

during the charging period.

      A witness must testify based on personal knowledge. ER 602. The trial court

has broad discretion when evaluating a witness's personal knowledge, and such

"testimony should be excluded only if, as a matter of law, no trier of fact could

reasonably find that the witness had firsthand knowledge." State v. Vaughn, 101 Wn.2d

604, 611-12, 682 P.2d 878 (1984).

       The record is clear that Doces was present and participated in hiring Pierce,

agreeing to her duties and pay, and opening a joint account with her. Although Doces

did not have clear memories of all the details, as the trial court observed, he could

identify Pierce, knew that she worked for him, and was aware of the duties she

performed for him. And as the State points out, given Pierce's claim that Doces
authorized and approved all her transactions, Doces's lack of personal knowledge of

certain transactions was itself probative evidence. Pierce fails to demonstrate any

abuse of discretion in the admission of the videotaped deposition.

       Affirmed.




WE CONCUR:




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