                                                                                                                FILED
                                                                                                    COURT OF
                                                                                                             APPEALS
                                                                                                           DIVISION             II
                                                                                                 2015 HAR 31
                                                                                                                                    8' 34
                                                                                                 S TAT •    7" ` /   i   Ll t : -




                                                                                                 BY



      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                DIVISION II

    STATE OF WASHINGTON,                                                         No. 44847 -5 -II


                                      Respondent,                  Consolidated with No. 44877 -7 -II)




    SHARI ANNE BRENTIN,


                                      Appellant.
    STATE OF WASHINGTON,                                                         No. 44877 -7 -II


                                      Respondent,


          v.



    ANTHONY DAVID BRENTIN,                                                UNPUBLISHED OPINION


                                      Appellant.


         WORSWICK, J. —          Shari and Anthony Brentin, tried jointly, each appeal their first degree

theft convictions) for stealing Suzanne Faveluke' s money by color or aid of deception. The

Brentins argue that ( 1) the trial court violated CrR 3. 3' s time for trial rule by granting two

contested continuances      for State'   s witness   Teresa Loucks'   s   unavailability, (2) the trial court


erroneously    admitted evidence, (      3) the trial court violated their right to present a defense by

excluding evidence of specific acts of Faveluke' s generosity, and ( 4) the accomplice liability

1
    RCW 9A. 56. 030( 1)(   a).
No. 44847 -5 -II
Cons. wi No. 44877 -7 -II

statute   is unconstitutionally   overbroad.   Finally, Anthony2 argues that ( 5) insufficient evidence

supports his first degree theft conviction. We affirm.


                                                   FACTS

          Background3
A.


          Shari Brentin and her husband Anthony Brentin jointly owned a financial services and

insurance business. The Brentins pooled their financial resources together in joint bank

accounts. In 2011, the Brentins' house had been foreclosed upon, which led them to live in a

rental house. The landlord evicted -them for failure to pay rent, and secured a judgment against

them in the amount of $4, 680. 24.


          By 2011, the Brentins had known Suzanne Faveluke for about five years. Faveluke was a

rich, elderly woman who had a reputation for generously giving her money to nonrelatives.

Faveluke made daily visits to her local bank branch for years. Two bank tellers testified that

historically, Faveluke would never withdraw large sums of cash from the bank.

          In 2011, Faveluke fell down a flight of stairs, injuring her leg and back, and requiring her

to stay in a rehabilitation center for a few months. The Brentins visited Faveluke there almost

daily. At the rehabilitation center, Faveluke gave Anthony, who was then a candidate for city

council, $ 500   in five $ 100 bills .for his campaign. After Faveluke returned home from the


rehabilitation center, Shari and Anthony both assisted Faveluke on a daily basis.



2 For clarity, we refer to Shari Brentin and Anthony Brentin as " the Brentins" collectively, and
by their first names individually. We intend no disrespect.

3 Because Anthony challenges the sufficiency of the evidence, we describe these facts in the light
most favorable to the State. See State v. Salinas, 119 Wn.2d 192, 201, 829 P. 2d 1068 ( 1992).



                                                       2
No. 44847 -5 -I1
Cons. wi No. 44877 -7 -II


          In October of 2011, a local newspaper printed an article about Anthony' s candidacy,

criticizing him for having the outstanding $4, 680. 24 judgment against him. Also in October of

2011, Shari and Anthony talked with Faveluke about Anthony' s campaign and his lack of

campaign funding. Faveluke gave Anthony $4, 900 by check for his campaign to purchase

 signs,   flyers,   posters, etcetera."    Verbatim Report of Proceedings ( VRP) at 587.


          Anthony testified that he had no intent to campaign, and had no campaign bank account,

campaign manager, signs, or call centers. Anthony testified that he used Faveluke' s money to

pay the outstanding judgment.

          On three separate occasions from October to December of 2011, Shari asked Faveluke for

 1, 000, $ 4, 352,    and $ 5, 000 respectively. Shari told Faveluke that she needed this money to pay

her veterinarian to save her sick cat' s life, and that the veterinarian would accept only cash.

Faveluke then made a series of withdrawals from the bank when a bank teller named Teresa


Loucks was present. First, with Shari by Faveluke' s side, Faveluke withdrew $1, 000 in cash and

told Loucks that the cash was intended for Shari' s cat. Second, with Shari by Faveluke' s side,

Faveluke cashed a $ 5, 000 check and told Loucks that the cash was intended for Shari' s cat.


Third, with Shari by her side, Faveluke withdrew $3, 400 in cash and took out a $ 952 cashier' s
                                                                              4
check     for Faveluke'   s   insurance bill, for   a   total   of $4, 352.       Finally, while Shari was waiting out

in a car, Faveluke requested $ 5, 000 in cash and told Loucks that the cash was intended for

Shari' s cat. Loucks, who was growing suspicious, convinced Faveluke to take a $ 5, 000 cashier' s



4 The record is unclear as to whether Shari received all of this money or whether the $ 952 really
paid Faveluke' s insurance bill. The record is also unclear as to what kind of insurance the $ 952
was   for. These      matters are not     important to the       resolution of      this   case.
No. 44847 -5 -II
Cons. wi No. 44877 -7 -II


check instead of cash, and wait one day before cashing it. But as soon as Faveluke returned to

Shari with the cashier' s check, Shari and Faveluke drove to another bank, where Faveluke

cashed the check and gave Shari the $ 5, 000.


          The veterinarians who treated Shari' s cat testified at trial that they accepted credit cards

as well as cash, and      that Shari     spent   only approximately $ 2, 100 in             veterinarian    bills. Shari


admitted    to Detective Plaza that "[         Faveluke] probably believed the money was going towards the

vet   bills," but that Shari   spent     Faveluke'      s   money   on,   among     other   things, $ 2, 000 for the


Brentins' business      office   lease   and $   2, 900 in     rent.    VRP   at   613.   Shari also told Detective Plaza


that she had tried to return the money to Faveluke but that Faveluke refused and said she could

keep it.

B.         Police Investigation and Charges


           Loucks tried to contact the police, adult protective services, and her bank' s fraud

department about Faveluke' s withdrawals. Detective Plaza then began an investigation, which

included taking       a written statement        from Faveluke in December                of   2011.   Faveluke dictated the


statement to Detective Plaza, who wrote it down. Faveluke signed the bottom of each page of


the statement. The statement included the following:

           After   falling down my stairs, [ Anthony] and Shari started coining over every day
           to   help me....   Shari and [ Anthony] would help around the house and help me
           shower, make sure I ate, etcetera.

                                    12th,
                     On October               2011, [       Anthony]    was   at   my house       and ...     said that

           campaign signs cost money. Shari then said if we had money, they would buy nice
           signs, too. After we talked for a while, I decided to help [ Anthony] by donating to
           his campaign. I wrote [ Anthony] a check, Check Number 1389, for $5, 000 but kept
            100. 00 for   myself, so     I   gave [   Anthony] $ 4, 900. This money was to be used solely
           for his   campaign and nothing       He was supposed to buy signs, flyers, posters,
                                                      else.

           etcetera. I later found out he did not use my money for any of that.



                                                                    4
No. 44847 -5 -II
Cons. wi No. 44877 -7 -II




                 On November 16th, 2011, Shari stopped by my house and she was crying.
       She told   me her cat had cancer and it was dying. She said the vet could save the

       cat,   but it   would cost $        1, 000. 00.      She told       me   the   vet would   only take    cash....   I

       gave Shari the money. I was told the entire amount was for the vet bill.
                                      29th,
                 On November                       by my house again. She said her cat
                                               2011, Shari            came

       needed more surgery or her cat would die. She told me again that her vet only took
       cash.     She drove      me   to the bank            and   I   withdrew $ 4, 352     in    cash.    I gave her the
       money, believing that the entire amount was to be used to pay the vet.
                                      7th,
                 On December                  2011, Shari         came       to my house     again.       She said the cat
       needed more work done. At one point, she was on the telephone with who she said
       was the vet office. After she hung up, she told me the vet said either she paid them
        5, 000 in cash or they would put her cat to sleep.... I agreed to give her the money.
       She took me to the bank and I tried to withdraw the cash but was told the bank did
       not    have it. I   got a cashier' s check             instead.       The bank lady asked me to wait one
       day    before I    cashed     it,   and   I   said   okay.          When we got to my car, Shari said we
       should    look for   a   bank to       cash    the check        at.   We went to a bunch of banks before
       we found one that would cash it. After I gave her the money, she told me not to tell
         Anthony] about it. She said [ Anthony] would not agree with her spending $5, 000
        on a cat. I promised not to tell. I gave her the money thinking it would all be used
        on an operation for Shari' s cat.


VRP at 587 -89. The State charged Anthony and Shari, as principles and accomplices of one

another, with first degree theft for stealing Faveluke' s money by color or aid of deception. The

State alleged a common scheme or plan. The State charged aggravating factors against both

Anthony and Shari for committing the offense against a particularly vulnerable victim, and for

committing a major economic offense.

C.      Continuances


        The Brentins were tried jointly. The State requested, and the trial court granted, three

uncontested continuances of the trial. The third of these uncontested continuances was because




                                                                       5
No. 44847 -5 -II
Cons. wi No. 44877 -7 -II


Loucks was unavailable to testify due to illness. After these three continuances, trial was

scheduled for December 3, 2012 with a commencement dates of October 25, 2012.

       On November 29, 2012, the State requested another continuance, due to Loucks' s


continued unavailability to testify. The State' s affidavit explained:

       I have been previously contacted in October by Frank Najar, corporate security and
       legal liaison for US Bank.           Mr. Najar informed         me   that [   Loucks] had been
       diagnosed with a serious medical condition that required immediate medical care,
       including surgery. Mr. Najar informed me that this surgery would incapacitate her
       and render her unavailable for trial. Due to this, the case was previously postponed.

       I was recontacted by Mr. Najar on November 16th. He informed me that [ Loucks]
       was required to undergo further surgery on November 30th, and would therefore be
       medically unable to work or appear in court for some time thereafter. He indicated
       that the prognosis is that [ Loucks] would recover and be able to testify

       approximately 1 month after her surgery.

Clerk' s Papers ( CP) ( Anthony)   at 80.

        The Brentins orally objected to continuing the trial, but did not argue that the continuance

caused them prejudice. The trial court found good cause for a continuance and granted the

State' s motion, continuing the trial until January 7, 2013.

        On January 3, the State requested another continuance due to Loucks' s continued

unavailability. The State' s affidavit restated the facts in its previous request and added the

following:

        I spoke with Mr. Najar again on December 26th and 28th to obtain updated
        information on [ Loucks]' s status. He related that her recovery is taking more time
        than initially expected, and that she is currently still occupied with an extensive
        medical    regimen   to include     physical   therapy   and   other   recovery   efforts.   The

        lingering effects of the surgery are also currently affecting her memory and recall
        of events. He also indicated that [ Loucks]' s current physical condition is frail, but



5 CrR 3. 3( b)( 2) provides that out -of-custody defendants " shall be brought to trial" within 90 days
of the commencement date.


                                                        6
No. 44847 -5 -I1
Cons. wi No. 44877 -7 -II


        that her doctors do indicate that her recovery, though likely to not be complete, is
        proceeding better than the vast majority of patients in her situation.

CP ( Anthony) at 83 -84.

        The Brentins again objected. The trial court found good cause and granted another


continuance, but ordered the State to provide documentation from Loucks' s physicians regarding

her medical condition. The trial court did not set a new trial date, but rather set a January 28

hearing to set the trial date. At the January 28 hearing, the trial court set the trial for March 18,
2013.   In February, the State eventually filed a sealed document explaining Loucks' s medical

condition. Trial began on March 19.


D.      Objections to the State' s Evidence


        1.   Loucks' s Testimony

        At trial, Loucks testified that on three of Faveluke' s withdrawals, Faveluke intended the


withdrawn money to go to Shari' s cat. A voir dire in aid of objection revealed Loucks' s

testimony was based on Faveluke' s out -of c- ourt statements to Loucks that Faveluke intended the

withdrawn money to go to Shari' s cat. The Brentins objected to this testimony as hearsay, and

the trial court overruled the objection.6




6 The trial court' s rationale for overruling the objection appears to be that because Loucks
testified that the withdrawn money was for Shari' s cat, rather than that Faveluke said that the
withdrawn money was for Shari' s cat, Loucks was not testifying to Faveluke' s out -of -court
statements, even though her testimony was based on Faveluke' s out -of c- ourt statements. This
rationale is incorrect. See Egede- Nissen v. Crystal Mountain, Inc., 21 Wn. App. 130, 145, 584
P. 2d 432 ( 1978),   aff'd and modified by 93 Wn.2d 127 ( 1980).



                                                   7
No. 44847 -5 -II
Cons. wi No. 44877 -7 -II


       Loucks also testified that in response to Faveluke' s suspicious withdrawals, Loucks had

tried to contact the police, adult protective services, and the bank' s fraud department. Shari


objected to this testimony as improper opinion .evidence, and the trial court overruled the

objection.




       2. Faveluke 's Testimony and Written Statement

       Faveluke testified at the Brentins' trial when she was 75 years old. Her testimony

revealed that she struggled to remember the events in the case. At one point she testified her .


own cat' s name was Brady, but then testified Shari' s cat' s name was Brady, and then testified

she could not be sure of that. Faveluke could not remember when she met Anthony or Shari.

She could not remember how much money she gave for Shari' s cat. She could not remember

whether she   had   given   Shari money for Shari'   s cat   twice   or   three times.   She was confused as to


whether the $4, 900 she gave Anthony was intended for Anthony' s campaign or for Shari' s cat.

        Faveluke testified that she had memory problems at the time of the trial, and that the

older she gets the worse her memory seems to become. She testified at different times that she

could not remember whether her memory was better at the time of the written statement or at

trial, that her written statement would help her remember events, and that her memory of the

events were better at trial than on the day she made the written statement. She testified that she

would need to read her written statement three times to remember it.

        The State moved to allow Detective Plaza to read Faveluke' s written statement verbatim


to the jury, and the Brentins objected. The trial court granted the State' s motion, ruling that

Faveluke' s written statement fell under the recorded recollections exception to the hearsay rule.

Detective Plaza read Faveluke' s full written statement to the jury.



                                                       8
No. 44847 -5 -II
Cons. wi No. 44877 -7 -II



E.      Limitations on the Brentins' Evidence


        Anthony testified at trial. Anthony' s defense was that Faveluke saw the newspaper

article criticizing Anthony for the judgment against him, and provided Anthony with unsolicited

money, not for campaigning, but rather for benefitting his campaign' s publicity by paying off his

 4, 680.24 judgment. Anthony testified that he had planned to pay Faveluke back, but that

Faveluke insisted it was a gift and that no repayment was needed.


        Shari did not testify at trial. Her defense was that Faveluke gave Shari unsolicited money

for her cat, that Shari spent some of that money on the veterinarian, and that Shari then offered

the remaining money to Faveluke. Shari argued that Faveluke refused to take the money back.

        To support their defenses, the Brentins attempted to admit evidence of both Faveluke' s


reputation for generosity and specific acts of her generosity. The Brentins sought to admit

evidence of, among other       things, ( 1) Faveluke' s $ 20, 000 gift to the owners of a restaurant she


frequented; ( 2)   Faveluke' s offer to pay for the dental care of a worker at the restaurant ( no

money   was   actually   given); ( 3).   Faveluke'   s   gift   of   money to   Anthony' s fire department; ( 4)

Faveluke' s gifts of hundreds of thousands of dollars to other organizations, and ( 5) Faveluke' s


gifts of tens of thousands of dollars to art students. The Brentins made an offer of proof that they

knew when the $ 20, 000 gift to the restaurant owners occurred, and, specifically, that Anthony

knew about this gift.at the time he took money from Faveluke. But the Brentins had no evidence

showing either when the other gifts occurred or that the Brentins knew about the other gifts.




                                                                9
No. 44847 -5 -II
Cons. wi No. 44877 -7 -II


         The trial court ruled that it would admit only evidence of Faveluke' s reputation for

generosity and those specific acts of Faveluke' s generosity that the Brentins knew about at the

time they received Faveluke' s money because this evidence was relevant to negate " color or aid

of   deception" ( by showing that the Brentins had    an apprehension of    Faveluke'   s   generosity). The


trial court excluded all other evidence of Faveluke' s specific acts of generosity.

         Thus, the trial court ruled that evidence about Faveluke' s reputation for generosity and

the specific act of the $ 20, 000 gift to the restaurant owners was admissible. But the trial court


ruled that because the Brentins made no showing that they knew about any of Faveluke' s other

specific acts of generosity, evidence of those other specific acts would not be admitted. Further,

the trial court did not allow the Brentins to cross -examine witnesses about the excluded specific

acts of Faveluke' s generosity. Evidence about Faveluke' s reputation for generosity and the

 20, 000 gift were admitted through testimony.

F.        Conviction


         A jury found both Shari and Anthony guilty of one count of first degree theft. Shari and

Anthony appealed their convictions, and we consolidated their appeals.

                                              ANALYSIS


                                           I. TIME FOR TRIAL


          The Brentins argue that the trial court violated their CrR 3. 3 timely trial rights by

granting the State two continuances based upon a witness' s unavailability, which pushed the trial

date beyond the timely trial   period allowed
                                                by   CrR 3. 3.   The Brentins argue that the trial court




                                                      10
No. 44847 -5 -II
Cons. wi No. 44877 -7 -II


could not grant the State' s two requested continuances because the State failed to subpoena the

unavailable witness. We disagree.?


        CrR 3. 3 governs the time for trial in superior court criminal proceedings. CrR 3. 3


provides that out -of-custody defendants " shall be brought to trial" within 90 days of the

commencement         date. CrR 3. 3( b)( 2). Because the commencement date here was October 25,


2012, the last     allowable    date for trial   was   January   23, 2013. The Brentins' trial commenced on


March 19 because the trial court granted two State motions for continuances. CrR 3. 3 excludes


properly   granted continuances        from the time -for -trial    period.   CrR 3. 3(   e)(   3).   Therefore, if the


continuances were proper under the rule, then the Brentins' trial was timely.

        We review a trial court' s grant or denial of a continuance for manifest abuse of

discretion. State     v.   Cannon, 130 Wn.2d 313, 326, 922 P. 2d 1293 ( 1996). A manifest abuse of


discretion exists only when no reasonable person would take the view adopted by the trial court.

State v. Woolworth, 30 Wn. App. 901, 906, 639 P. 2d 216, 219 ( 1981).

          CrR 3. 3( f)(2) states in part:


          On    motion of ...     a party, the court may continue the trial date to a specified date
          when such continuance is required in the administration of justice and the
          defendant will not be prejudiced in the presentation ofhis or her defense.

 Emphasis       added.)    Under CrR 3. 3( f)(2), a trial court may grant a continuance where a material


witness    is   unavailable   if (1) there is    a valid reason   for the unavailability, ( 2) the witness will be




7 The State argues this issue is waived under CrR 3. 3( d)( 3) because while the Brentins objected,
they did not file a written motion. State v. Chavez -Romero, 170 Wn. App. 568, 581, 285 P.3d
 195 ( 2012).     We assume without deciding that the issue is not waived because it does not affect
the result.




                                                            11
No. 44847 -5 -II
Cons. wi No. 44877 -7 -II


available within a reasonable time frame, and ( 3) the defendant incurs no substantial prejudice

from the     continuance.      State    v.    Nguyen, 68 Wn.   App.   906, 914, 847 P. 2d 936 ( 1993).   The


issuance of a subpoena can also be an important factor in determining whether a continuance is

proper.8 State v. Wake, 56 Wn. App. 472, 476, 783 P.2d 1131 ( 1989).

A.          First Contested Continuance


            Here, the State requested a continuance on November 27, declaring that on November 16

the State learned that Loucks had a serious medical condition and needed immediate surgery on

November 30 and that the surgery would prevent her from testifying for approximately one

month. The Brentins provided no argument below or on appeal that this continuance prejudiced


them in any way. Because Loucks' s unavailability was due to a serious medical condition that

required surgery, there was nothing the State could have done to secure the witness' s attendance,

and a subpoena would have been futile. Thus, a reasonable person could take the view that a

valid reason for Loucks' s unavailability existed, that Loucks would be available within a

reasonable time, and that the Brentins would not be prejudiced. Therefore, the trial court did not

commit a manifest abuse of discretion by granting the first continuance.



8
    Anthony argues the trial court may not grant the State a continuance for failure to secure a
material witness' s attendance at trial if the State has not followed the standards of due diligence,
which require the issuance of subpoenas to witnesses. The brief of appellant at pages 18 to 19
cites to City ofSeattle v. Clewis, 159 Wn. App. 842, 847, 247 P. 3d 449 ( 2011) and State v.
Adamski, 111 Wn.2d 574, 577, 761 P. 2d 621 ( 1988).                    But Clewis cited to Adamski, and Adamski
interpreted JuCR 7. 8 when it still explicitly contained the " due diligence" standard. See State v.
Bible, 77 Wn.        App.   470, 473, 892 P. 2d 116 ( 1995).          The " due diligence" standard was amended
out   of CrR 3. 3 in 1979. Compare former CrR 3. 3( e)( 2)( ii)(1978) with former CrR 3. 3( f)(2)

    1979)   with   CrR 3. 3 ( f)( 2).   The due diligence standard was amended out of JuCR 7. 8 by 2004.
Compare former JuCR 7. 8(               e)(   2)( ii) (2003) with former JuCR 7. 8( f)(
                                                                                      2)( 2004) with JuCR
          Thus, we hold that while issuance of a subpoena is an important factor for this court' s
7. 8( f)(2).
consideration, Clewis and Adamski' s holdings based on " due diligence" do not apply.


                                                               12
No. 44847 -5 -II
Cons. wi No. 44877 -7 -II


B.     Second Contested Continuance


       The State requested another continuance on January 3, claiming that on December 26 and

28, the State learned that Loucks' s recovery was taking longer than expected, she still had an

extensive medical regimen, and that the lingering effects of her surgery were affecting her

memory. But the State also said that it learned Loucks was " proceeding better than the vast

majority   of patients   in her   situation."   CP ( Anthony Brentin) at 84. The Brentins provided no

argument below or on appeal that this continuance prejudiced them in any way. Because

Loucks' s unavailability was due to a serious medical condition and her memory was affected by

the lingering effects of the surgery, there was nothing the State could have done to secure her

attendance, and a subpoena would have been futile. Thus, a reasonable person could take the


view that there was a valid reason for Loucks' s unavailability, that Loucks would be available

within a reasonable time, and that the Brentins would not be prejudiced. Therefore, the trial

court did not commit a manifest abuse of discretion by granting the first continuance.

        Because the trial court did not abuse its discretion in granting either continuance, the

continuances are excluded from the time for trial period. Thus, the Brentins' trial was timely

under CrR 3. 3.


                                                    II. HEARSAY


        The Brentins argue that the trial court violated the hearsay rule by admitting Loucks' s

testimony of Faveluke' s out -of -court statements that she intended to use the withdrawn money

for Shari' s cat, and Detective Plaza' s testimony that read Faveluke' s out -of c- ourt written

statement to the jury. We disagree.




                                                         13
No. 44847 -5 -II
Cons. wi No. 44877 -7 -II


              Hearsay" is " a statement, other than one made by the declarant while testifying at the

trial   or   hearing,   offered   in   evidence   to   prove   the truth of the   matter asserted."   ER 801(   c).   Under


ER 802, hearsay is inadmissible unless it comes within an exception established by statute, court

rules, or common law. State v. Kirkpatrick, 160 Wn.2d 873, 881, 161 P. 3d 990 ( 2007).


             We review the trial court' s determination of whether a hearsay exception authorizes the

admission of hearsay for an abuse of discretion. State v. Woods, 143 Wn.2d 561, 595, 23 P. 3d

1046 ( 2001).      An abuse of discretion exists only when no reasonable person would take the

position adopted by the trial court. State v. Atsbeha, 142 Wn.2d 904, 913 - 14, 16 P. 3d 626

 2001).       Furthermore, "[     a] party may present a ground for affirming a trial court decision which

was not presented to the trial court if the record has been sufficiently developed to fairly consider

the     ground."   RAP 2. 5( a).


A.           Then Existing Mental, Emotional, or Physical Condition

             The Brentins argue that the trial court erred by admitting Loucks' s testimony of

Faveluke' s out -of c- ourt statements that she intended to use the money she withdrew for Shari' s

cat. The State argues that Faveluke' s out -of -court statements were not hearsay because they

were not offered in evidence to prove the truth of the matter asserted, and that if they were

hearsay, they were still admissible under ER 803( a)( 3)' s exception to the hearsay rule as

statements of then existing mental condition. We hold that Faveluke' s statements were hearsay,

but that they were admissible under ER 803( a)( 3)' s exception to the hearsay rule.




                                                                  14
No. 44847 -5 -II
Cons. wi No. 44877 -7 -II

       ER 803( a)( 3) allows admission of hearsay if it is a " then existing mental, emotional, or

physical condition" defined as:


       A statement of the declarant' s then existing state of mind, emotion, sensation, or
       physical condition ( such as intent, plan, motive, design, mental feeling, pain, and
       bodily health), but not including a statement of memory or belief to prove the fact
       remembered or believed unless it relates to the execution, revocation, identification,
       or terms of declarant' s will.


 Emphasis added.)


       Here, the State offered Faveluke' s out -of c
                                                   - ourt statements that she intended to use the


money for Shari' s cat in evidence to prove the truth of the matter asserted: that Faveluke

intended to use the money for Shari' s cat. Thus, the statements were hearsay. But Faveluke' s

statements of her intent for use of the money were made as she was withdrawing the money.

Thus, Faveluke' s statements were statements of Faveluke' s then existing state of mind, i.e., her

intent, and were admissible as statements of an existing mental condition under ER 803( a)( 3)' s

exception to the hearsay rule.

B.     Recorded Recollection


        The Brentins argue that the trial court erred by admitting, as a recorded recollection,

Faveluke' s written statement to the jury. The Brentins contend that the trial court lacked

sufficient foundation to admit this statement. We disagree.


        ER 803( a)( 5) provides an exception to the hearsay rule for a " recorded recollection,"

defined as:


        A memorandum or record concerning a matter about which a witness once had
        knowledge but now has insufficient recollection to enable the witness to testify
        fully and accurately, shown to have been made or adopted by the witness when the
        matter was fresh in the witness' memory and to reflect that knowledge correctly.




                                                  15
No. 44847 -5 -II
Cons. wi No. 44877 -7 -II


       Admission of a recorded recollection under ER 803( a)( 5) is proper when the following

requirements are met: (        1) the record pertains to a matter about which the witness once had

knowledge, ( 2) the witness has an insufficient recollection of the matter to provide truthful and


accurate   trial   testimony, ( 3) the record was made or adopted by the witness when the matter was

fresh in the witness' s memory, and ( 4) the record reflects the witness' s prior knowledge

accurately. State      v.   White, 152 Wn.     App.    173, 183, 215 P. 3d 251 ( 2009). The Brentins


challenge only the second and third requirements.

        Regarding the second requirement, Faveluke' s testimony demonstrated that she had

insufficient recollection of the details of her interactions with the Brentins to provide truthful and


accurate trial testimony about them. Regarding the third requirement, Faveluke gave the

statement   to     police   in December   of   2011,   about events    occurring in the fall   of   2011. Thus, the


record was made or adopted          by   Faveluke      when   the   matter was   fresh in her memory.      We hold


the trial court did not abuse its discretion by admitting Faveluke' s written statement as a

recorded recollection under ER 803( a)( 5)' s exception to the hearsay rule.

                                               III. OPINION TESTIMONY


        The Brentins argue that the trial court denied them a fair trial by admitting Loucks' s

testimony that she called the police, adult protective services, and her bank' s fraud department in

response to Faveluke' s withdrawals. They argue that this evidence was improper opinion

testimony as to their guilt. We disagree.

        We review claims of constitutional error de novo. State v. Iniguez, 167 Wn.2d 273, 281,

217 P. 3d 768 ( 2009). The Sixth Amendment to the United States Constitution and article I,


section 21 of the Washington Constitution guarantee the right to a trial by jury. State v. Elmore,



                                                              16
No. 44847 -5 -II
Cons. wi No. 44877 -7 -1I


154 Wn.     App. 885, 897,      228 P. 3d 760 ( 2010).       In general, witnesses may not comment, directly

or indirectly, on the defendant' s guilt or veracity because such testimony invades the jury' s

exclusive province.       State   v.   Demery,   144 Wn.2d 753, 759, 30 P. 3d 1278 ( 2001) ( plurality


opinion).



         Loucks testified that she called the police, adult protective services, and the fraud

department because she had grown suspicious of Faveluke' s unusual large withdrawals of


money. But the State never asked about, nor did Loucks opine on, Faveluke' s veracity or the

Brentins' guilt. Rather, Loucks testified only that she called various authorities because of a

general suspicion as to Faveluke' s large transactions.


         The Brentins' reliance on State v. Black, 109 Wn.2d 336, 745 P. 2d 12 ( 1987) and State v.

Johnson, 152 Wn. App. 924, 219 P. 3d 958 ( 2009) is not persuasive. In both of these cases,

unlike here, the witness gave an opinion on the veracity of the victim' s allegations against the

defendant, thus commenting             on   the defendant'   s guilt.   In Black, the   expert   testified, " There is a



specific profile   for   rape victims and [ the alleged rape victim)           fits in." Black, 109 Wn.2d at 339.


In Johnson, the trial court admitted non -expert out -of c
                                                         - ourt statements from the defendant' s

wife,   conveying her belief that the         victim   told the truth.    152 Wn. App. at 931; see also State v.

Alexander, 64 Wn.        App.     147, 154, 822 P. 2d 1250 ( 1992) ( a counselor testified that he believed


the victim was not lying).

         Here, Loucks' s testimony commented on neither Shari' s or Anthony' s guilt nor

Faveluke' s veracity. Instead, Loucks stated that she had concerns about Faveluke' s unusual

withdrawals and called the authorities. Thus, Loucks did not comment, directly or indirectly, on

the defendants' guilt or veracity, and the Brentins' claim fails.



                                                              17
No. 44847 -5 -II
Cons. wi No. 44877 -7 -II




                                        IV. RIGHT To PRESENT A DEFENSE


            The Brentins argue that the trial court violated their right to present a defense when it


ruled that they could not present evidence of Faveluke' s specific acts of generosity. We

disagree.


A.          Standard ofReview

            The United States Constitution and the Washington State Constitution guarantee the right


to   present a   defense. U. S. CONST.      amend.    VI; WASH. CONST.         art.   I § 22; State v. Wittenbarger,


124 Wn.2d 467, 474, 880 P. 2d 517 ( 1994). This constitutional right is not absolute and does not


extend to irrelevant or inadmissible evidence. State v. Jones, 168 Wn.2d 713, 720, 230 P. 3d 576

 2010); State     v.   Aguirre, 168 Wn.2d 350, 363, 229 P. 3d 669 ( 2010) ( although defendant has " a


constitutional right to present a defense, the scope of that right does not extend to the

introduction     of otherwise      inadmissible   evidence ");     State v. Mee Hui Kim, 134 Wn. App. 27, 41,

139 P. 3d 354 ( 2006) ( defendant has         right   to   present a   defense "' consisting of relevant evidence


that   is   not otherwise   inadmissible ') (   quoting State v. Rehak, 67 Wn. App. 157, 162, 834 P. 2d

651 ( 1992)).     Accordingly, where evidence is inadmissible, excluding that evidence does not

violate a defendant' s constitutional right to present a defense.


            We review a trial court' s rulings on evidentiary matters for an abuse of discretion. State

v.   Myers, 133 Wn. 2d 26, 34, 941 P. 2d 1102 ( 1997). If the excluded evidence was relevant, we


balance "[ t] he State'     s   interest in excluding   prejudicial evidence"         against "`   the defendant' s need


for the information        sought,'   and relevant information can be withheld only `if the State' s interest




                                                              18
No. 44847 -5 -I1
Cons. wi No. 44877 -7 -I1


outweighs   the   defendant'   s need. "'   Jones, 168 Wn.2d at 720 ( quoting State v. Darden, 145

Wn.2d 612, 622, 41 P. 3d 1189 ( 2002)).


B.     Admissibility ofFaveluke' s Specific Acts of Generosity

       The Brentins challenge the trial court' s refusal to allow the introduction of Faveluke' s


generosity into evidence, arguing that they should have been able to ask Faveluke about her acts

of generosity on cross -examination to rebut the bank tellers' testimony that Faveluke never

withdrew cash from her bank account and that they should have been able to admit affirmative

evidence of Faveluke' s generosity because the evidence was an essential element of their

defense. We disagree.


       ER 404( a) states in part:


                 a) Character Evidence Generally. Evidence of a person' s character or a
       trait of character is not admissible for the purpose of proving action in conformity
       therewith on a particular occasion, except:




                   2) Character of Victim. Evidence of a pertinent trait of character of the
       victim of the crime offered by an accused, or by the prosecution to rebut the same.

ER 405 states:


                   a) Reputation. In all cases in which evidence of character or a trait of
        character of a person is admissible, proof may be made by testimony as to
        reputation. On cross examination, inquiry is allowable into relevant specific
        instances of conduct.


                   b) Specific Instances of Conduct. In cases in which character or a trait of
        character of a person is an essential element of a charge, claim, or defense, proof
        may also be made of specific instances of that person' s conduct.




                                                        19
No. 44847 -5 -I1
Cons. wi No. 44877 -7 -1I


       1.   ER 405( a) Specific Acts of Generosity on Cross- Examination

       The Brentins argue that ER 405( a) allowed them to cross -examine Faveluke about her


specific acts of generosity to rebut the State' s evidence, derived from bank tellers' testimony,

that Faveluke never withdrew cash from her bank account. We hold that ER 405 does not apply

here, and that ER 403 prohibits cross -examination of Faveluke' s specific acts of generosity.

       Character evidence is limited to that evidence which is admitted " for the purpose of


proving   action   in conformity therewith      on a particular occasion."   ER 404( a). Thus, where


evidence is admitted for a purpose other than to prove action in conformity therewith on a

particular occasion, it is not character evidence, and ER 404 and ER 405' s restrictions do not

apply. See State     v.   Kelly,   102 Wn.2d 188, 195 -96, 685 P. 2d 564 ( 1984); United States v. Keiser,


57 F. 3d 847, 853 ( 9th Cir. 1995); 5D KARL B. TEGLAND, WASHINGTON PRACTICE: COURTROOM


HANDBOOK ON WASHINGTON EVIDENCE § 405. 1, at 191 ( 2014 -15 ed.).


       Here, the Brentins argue that ER 405( a) allowed them to elicit testimony from Faveluke

on cross examination about her specific acts of generosity not for the purpose of proving

conformity with that generosity on a specific occasion, but rather for the purpose of proving that

Faveluke withdrew cash from the bank. Thus, the Brentins do not seek to elicit Faveluke' s


testimony about her generosity for the purpose of showing conformity with that generosity on a

particular occasion, and ER 404 and ER 405 do not apply.

          Therefore, to determine admissibility we look to ER 403, which states:

                 Although 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.




                                                        20
No. 44847 -5 -II
Cons. wi No. 44877 -7 -II


Here, Faveluke' s specific acts of generosity did not directly contradict the bank tellers' testimony

about her banking habits, and thus, had minimal, if any, probative value to show the amount of

cash she withdrew from her bank. Faveluke' s specific acts of generosity were cumulative of the

admitted evidence of Faveluke' s reputation for generosity and the $ 20, 000 gift that was

admitted. Any testimony elicited from Faveluke about the other specific acts of generosity

would have confused the issues by introducing transactions and parties unrelated to the case. In

addition, such testimony would have been confusing and would have wasted time. Furthermore,

the Brentins were able to argue at trial that Faveluke' s generously gave the Brentins the allegedly

stolen money as a gift.


       Thus, we hold that because the minimal probative value of the evidence was substantially

outweighed by considerations of undue delay, waste of time, or needless presentation of

cumulative evidence, it was inadmissible under ER 403, and the trial court did not err by

prohibiting the Brentins from questioning Faveluke about these acts on cross -examination.

Because the State' s interest in excluding this evidence to avoid confusing the jury greatly

outweighs the defendant' s need for the information sought, its exclusion did not violate the

Brentins' constitutional right to present a defense.


        2. ER 405( b):    Essential Element of the Brentins' Defense

        The Brentins argue that affirmative evidence of Faveluke' s specific acts of generosity

was admissible under ER 405( b) because Faveluke' s generosity is an essential element of the

Brentins' defense. We disagree.




                                                  21
No. 44847 -5 -II
Cons. wi No. 44877 -7 -II


         Affirmative evidence of specific instances of conduct may be admitted only if the

person' s character is an essential element of a charge, claim, or defense. Kelly, 102 Wn.2d at

197. For character to be an essential element, it must itself determine the parties' rights and

liabilities.   102 Wn.2d at 197.


         Here, the State did not dispute that Faveluke voluntarily and generously gave the Brentins

her money. Rather, the State argued that the Brentins intentionally deceived Faveluke as to the

purpose of     her   generous gifts.    ER 405( b).        Thus, because Faveluke' s character for generosity

does not itself determine the Brentins' rights and liabilities under the first degree theft statute, it

is not an essential element of any charge, claim, or defense to the crime with which the Brentins

were charged. Accordingly, the excluded specific acts of Faveluke' s character for generosity are

not admissible under       ER 405( b).       Because the State' s interest in excluding the specific instances

of conduct to avoid confusing the jury greatly outweighed the defendant' s minimal need for the

information sought, its exclusion did not violate the Brentins' constitutional right to present a

defense.


                                       V. ACCOMPLICE LIABILITY STATUTE


         The Brentins argue that Washington' s accomplice liability statute, RCW 9A.08. 020, is

unconstitutionally overbroad in violation of the First Amendment to the United States

Constitution because it does           not   define   or   limit the term " aid," and thus, criminalizes protected


speech that the actor knows will encourage crime, even if the actor has no intent to promote or

further crime. The Brentins ask us to revisit and reverse our decisions rejecting this identical



9 U.S. CONST. amend. I.



                                                               22
No. 44847 -5 -II
Cons. wi No. 44877 -7 -II


argument in State v. Coleman, 155 Wn. App. 951, 961 -62, 231 P. 3d 212 ( 2010) and State v.

Ferguson, 164 Wn.            App.     370, 375 -76, 264 P. 3d 575 ( 2011).            We decline to do so.


             We presume that statutes are constitutional and we review challenges to them de novo.

State   v.   Lanciloti, 165 Wn.2d 661, 667, 201 P. 3d 323 ( 2009). Under RCW 9A.08. 020( 3),                            a



person is an accomplice of another' s crime if:

              a) With knowledge that it will promote or facilitate the commission of the crime,
             he or she:


                      ii) Aids or agrees to aid such other person in planning or committing it.

A.           The Law as Established by Coleman and Ferguson

             In Coleman, Coleman argued that the accomplice liability statute " criminalize[ d] speech,

press, or assembly activity that the actor knows will encourage vandalism, traffic obstruction, or

other crimes, even          if the    actor   has   no   intent to   promote or   further   crime."   155 Wn. App. at 960

 emphasis added).            Division One of this court held that the accomplice liability statute was not

unconstitutionally overbroad because it "requires the criminal mens rea to aid or agree to aid the

commission of a specific crime with                      knowledge the     aid will   further the   crime,"   thus showing that

the speech at issue was intended to and was likely to produce or incite imminent lawless action.

155 Wn.        App.   at   960 -61.    We adopted this reasoning in Ferguson. 164 Wn. App. at 375 -76.

B.           The Brentins' Challenges to Coleman and Ferguson


             The Brentins acknowledge Coleman and Ferguson, but argue that the cases were wrongly

decided for two reasons. We reject both arguments.




                                                                      23
No. 44847 -5 -II
Cons. wi No. 44877 -7 -II


            First, the Brentins argue that because the trial courts' reliance on the mens rea


requirement does not meet the federal Brandenburg standard, the statute criminalizes speech

other   than that "' directed to        inciting   or   producing imminent lawless           action.. '   Br. of Appellant


Anthony Brentin) at 26 ( quoting Brandenburg v. Ohio, 395 U.S. 444, 447, 89 S. Ct. 1827, 23 L.

Ed. 2d 430 ( 1969)).           But the Brentins are mistaken. In Ferguson, we did address the


Brandenburg            standard and concluded       that "[   b] ecause the [ accomplice liability] statute' s

language forbids advocacy directed at and likely to incite or produce imminent lawless action, it

does not forbid the mere advocacy of law v_iolation that is protected under the holding of

Brandenburg." Ferguson, 164 Wn. App. at 376. We once again reject this constitutional

challenge.         See State   v.   McCreven, 170 Wn.         App.   444, 484 -85, 284 P. 3d 793 ( 2012) ( rejecting


the   same argument and             following Ferguson),       review denied, 176 Wn.2d 1015 ( 2013).


             Second, the Brentins argue that this court in Coleman and Ferguson erroneously relied on

cases involving conduct, whereas the act of aiding can involve pure speech. We recently

rejected this argument in State v. Holcomb by holding that the accomplice liability statute cannot

punish pure speech because it "has been construed to apply solely when the accomplice acts with

knowledge of the specific crime that is eventually charged, rather than with knowledge of a

different crime or generalized knowledge of criminal activity. And the required aid or agreement

to    aid   the   other person must     be ` in planning      or   committing [ the      crime]."   180 Wn. App. 583,

590, 321 P. 3d 1288,           review   denied, 180 Wn.2d 1029 ( 2014) ( internal citations omitted)


 alteration       in   original) ( quoting   RCW 9A. 08. 020( 3)(       a)(   ii)).   Thus, the accomplice liability statute

is not unconstitutionally overbroad.




                                                                   24
No. 44847 -5 -II
Cons. wi No. 44877 -7 -II

                                              VI. INSUFFICIENT EVIDENCE


         Anthony argues that insufficient evidence supports his first degree theft conviction

because the State failed to produce sufficient evidence that he stole more than $5, 000 by color or

aid of deception. We disagree.


         Evidence is sufficient to support a conviction if, viewed in the light most favorable to the


State, it permits any rational trier of fact to find the crime' s essential elements beyond a

reasonable         doubt. State   v.   Salinas, 119 Wn. 2d 192, 201, 829 P. 2d 1068 ( 1992). A claim of


insufficiency admits the truth of the State' s evidence and all reasonable inferences that a trier of

fact   can   draw from that       evidence.    119 Wn.2d at 201.


         Under RCW 9A. 56. 020( 1)( b), " theft" means:


         By color or aid of deception to obtain control over the property or services of
         another or the value thereof, with intent to deprive him or her of such property or
         services.




         Under RCW 9A. 56. 030( 1)(            a), a person commits      first degree theft    by   stealing "[ p] roperty


or services which exceed( s) five thousand dollars in value."


         Here, evidence at trial supports that Faveluke provided Anthony with $5, 400 for his

campaign:      her testimony       provides evidence       that   she gave   Anthony $ 500     in five $ 100 bills at the


rehabilitation center, and her written statement supports that she gave Anthony $4, 900 by check.

Anthony testified that he had no intent to campaign, and no campaign bank account, campaign

manager, signs, or call centers. Anthony also testified that Faveluke' s money was used to pay

off his debt on the first rental house, for which he owed $4, 680.24. Taking this evidence in the

light most favorable to the State, this is sufficient evidence that Anthony took $5, 400 of

Faveluke'      s   money   by deceiving      her into   falsely believing    that the $   5, 400 was for his campaign,




                                                                  25
No. 44847 -5 -II
Cons. wi No. 44877 -7 -II


when he had no intent to campaign. Thus, there is sufficient evidence to convict him of first

degree theft.'°


        We affirm.


        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


2. 06. 040, it is so ordered.




 We concur:




                      I   A,
                  a




 Melnick, J.




 1° Because we hold that sufficient evidence supports Anthony' s conviction as a principal, we
need not consider whether sufficient evidence supports his conviction as an accomplice. See
State v. McDonald, 138 Wn.2d 680, 686 -87, 981 P. 2d 443 ( 1999).




                                                 26
