### FILED DEC 15,2015 In the Office ofthe ClerkofCourt W A State CourtofAppeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISIONTHREE STATE OF WASHINGTON, ) ) No. 32734-5-III Respondent, ) ) 

### v. ) ) VICKI S. BARRETT, ) UNPUBLISHED OPINION ) Appellant. ) KORSMO, J.

- Vicki Barrett appeals her conviction for first degree theft, contendingboththat the evidence was insufficient and that improper admission of hearsay evidence deprived her ofa fair trial. Concluding thatthe evidence was sufficient andthat any error did nottaint the verdict, we affirm. FACTS Ms. Barrettwas chargedwithtwo counts offirst degree theft involvingherelderly father, Clarence Swanson. He was in his late 80s at the time oftherelevant events in 2010 and2011 andresiding atthe SpokaneVeterans Home, a nursing care facility. He
was frail and blind and unableto managehis ownpersonal orfinancial affairs. Hehad a history ofcancer and was suffering from dementia.No. 32734-5-II1 State v. Barrett
At some point in late 2010, Ms. Barrettreceived a check for $16,980 made out to Mr. Swanson. l Acting under herpower ofattorney for Mr. Swanson, she used approximately halfofthe checkto payoffthe mortgage onthe home owned by Mr. Swanson and taxes owed ontheproperty. She spent some ofthe remainder ofthe check purchasing a variety offurniture, clothing, supplies, and food. Ostensibly, Ms. Barrett
was preparing the house so that Mr. Swanson could leave the Veterans Home and return to hercare, even though he had not lived in the house since 2006. As a result ofthe check, Mr. Swanson ceased qualifying for Medicaid assistance in paying for his stay at the nursing home. Consequently, he was expected to paythe full amount ofhis care until the $16,980 was accounted for and he again qualified for Medicaid. While Ms. Barrett continued to paythe copay required under Medicaid, she
neverpaid the full amount, and his arrearages mounted tojust over $64,000 before he died. Laterthat year, Ms. Barrettmade arrangements with attorney Robert Redmond to have a quitclaim deed drafted transferring ownership ofMr. Swanson'shome to herself. That deed was then executed, with Ms. Barrett signing for her father underthepowerof attorney. Mr. Redmond was ofthe opinion that Mr. Swanson understood what he was doing and manifested an intentto carry outthe transfer, but wasphysically unable to sign the paperwork.

1Itis not clear whether the checkwas a refund on an insurancepolicy or a backpayment ofa veteran's pension. 

### See Report ofProceedings (RP) at 62, 141. 2No. 32734-5-III State 

### v. Barrett
Adult Protective Services (APS) investigated the situation and obtained findings of neglect and financial exploitation in administrative proceedings before referring the matter to the police.2 The two noted charges eventually were filed against Ms. Barrett, with one count offirst degree theft relating to the check and the other to the home. The jury convicted Ms. Barrett on the count relating to the check, but acquitted her on the count relating to the home. Thejury also found two aggravating factors present-the victim was particularly vulnerable and Ms. Barrett abused a position oftrust. Afterthe trial court imposed a standardrange term ofzero days injail, Ms. Barrett timely appealed to this court. ANALYSIS Ms. Barrett contends both that the trial court wrongly permitted hearsay testimony into evidence and that her confrontation clause rights were violated by that process, as well as contending that the evidence was insufficient to support the conviction. We address the evidentiary sufficiency claim first before turning to the hearsay/confrontation clause contentions. 3

2 All evidence relating to the administrative proceedings was stricken during motions in limine. 3 Ms. Barrett also contends that hertrial counsel was ineffective by failing to raise her confrontation claim. In light ofour determination that any error was harmless, we do not independently address that argument. 3No. 32734-5-111 State v. Barrett Sufficiency of the Evidence Very well settled standards govern review ofthis first issue. Appellate courts review evidentiary sufficiency challenges to see ifthere was evidence from which the trier offact could find each element ofthe offense proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); State v. Green, 94 Wn.2d 216, 221-222, 616 P.2d 628 (1980). The reviewing court will consider the evidence in a light most favorable to the prosecution. Id. Reviewing courts also must defer to the trier offact "on issues ofconflicting testimony, credibility ofwitnesses, and the persuasiveness ofthe evidence." State v. Thomas, 150 Wn.2d 821, 874-875, 83 P.3d 970 (2004). "Credibility determinations are for the trier offact and are not subject to review." Id. at 874. As charged, the State was required to prove that Ms. Barrett exercised unauthorized control over theproperty ofClarence Swanson in a value exceeding $5,000. Clerk's Papers (CP) at 1-2; RCW 9A.56.030(l). In particular, count II alleged that Ms. Barretthad exercised unlawful control over a $16,000 check. CP at 1-2. Here, Ms. Barrett contends the evidence was insufficient to establish that she stole the check, pointing to her use ofthe proceeds to payoffthe mortgage and improve the home, and thejury's acquittal on the house theft count. However, the existence of contradictory evidence does not create an evidentiary sufficiency issue. The focus ofthis challenge is on what thejury decided, not what 

### itcould have decided. 4No. 32734-5-III State 

### v. Barrett Here, thejury could determine that Ms. Barrett profited from the use ofthe proceeds ofthe check. First, she did not account for all ofthe $16,000 proceeds from the check. Even ifthejury decided that the $8,000 spent to pay offthe mortgage and taxes
was for her father's benefit rather than her own benefit, a determination that only thejury could make, the remaining $8,000 was not accounted for. Some ofthat amount allegedly
was spent at Costco for items used in the home, but given that Mr. Swanson had not lived in the house for five or sixyears, thejury understandably had reason to conclude that those expenditures were not for his benefit. Thejury's decision to acquit on the count involvingthe theft ofthe house is not the least bit inconsistent with the conviction for theft ofthe check. The testimony of attorney Redmond gave thejury a basis for concluding that Mr. Swanson did wantto deed the house to his daughter, Ms. Barrett. Redmond testified that he took precautions to affirm that itwas Mr. Swanson's desire to deed the house overrather than merely the desire ofMs. Barrett. Report ofProceedings (RP) at 32-40. In contrast, otherthan Ms. Barrett's own testimony, there was no similar evidence indicating that Mr. Swanson wanted Ms. Barrettto spendthe checkproceeds. Thejury easily had a basis to distinguish between the two situations. The evidence permitted thejuryto conclude thatthe proceeds ofthe check were spent to benefitMs. Barrettrather than her father. The effect ofheruse ofthe check proceeds was to burden her father's estate with a $64,000 nursing home bill. Since the 

### 5

### No. 32734·5·111 State v. Barrett only person to benefit from this arrangement was Ms. Barrett, thejury'sverdict was quite understandable. The evidence supported thejury's determination. Hearsay andConfrontation Challenges Ms. Barrett spends a substantial amount oftime arguing overthe effect ofone question asked during the brieftestimony ofa detective at the end ofthe State's case, contending that the question constituted hearsay and a violation ofherright to confront witnesses. The latter contention is utterly without merit. However, review ofthe testimony is necessary to explain her arguments. At the very end ofthe State's case, the prosecutor called detective Kirk Kimberly to very briefly4 testity concerninghis referral ofthe case to the prosecutor's office. At the time, Detective Kimberly was the vulnerable adult investigator for the Spokane Police Department. He explained that the case qualified for expedited treatment that consisted ofreview ofthe APS file and referral to the prosecutor because probable cause existed to believe that theft had occurred. It appears that the primary purpose ofcalling the detective was to preemptively explain why he did not independently interview witnesses
or further develop the case. Defense counsel focused her examination on the actions

4Direct examination ofthe detective took less than four pages ofthe transcript, including the defense objection, and cross·examination took another two pages. RP at 

### 105·110. 6No. 32734-5-111 State v. Barrett
Detective Kimberly did not take-hedid not interview Mr. Swanson, he did not interview Mr. Swanson's doctor, he did not interviewMs. Barrett, andhe did not interview Mr. Swanson's other daughter, Flori Benner. Atthe end ofthe crossexamination, the defense immediately called Ms. Benner as the first witness. Theprosecutor asked about the detective's review ofthe report by APS investigatorMartin Yacker. Mr. Yacker had testified for the State immediately before Detective Kimberly. Theprosecutor asked the following question: Reviewing the report, is ityour understanding there was a check from the V A paid to Mr. Swanson but spent by Ms. Barrett? RP at 107. Defense counsel immediately objected, "hearsay." RP at 108. The trialjudge directed the witness to answer the question "yes or no," but not repeat anything stated in the report. RP at 108. The detective answered "yes." RP at 108. Theprosecutorthen
more neutrally phrased a question whether the detective had also investigated and referredthehouse transaction to the prosecutor's office. The defense did not object to that question. 

### It is from this small mound ofdirt that Ms. Barrett attempts to build a constitutional mountain. The constitutional question is easilyrejected. The author ofthe report in question, Mr. Yacker, testified at trial (as did the treating physician, Dr. Penger). When a witness testifies at trial, the opportunity for confrontation exists. Therefore, no confrontation clause violation exists when onewitness is asked about a statement
7No. 32734-5-III State v. Barrett allegedly made by another testifying witness. Thomas, 150 Wn.2d at 858-859. If Detective Kimberly was reporting a statement5 allegedly made by Mr. Yacker, there was
no confrontation issue because Mr. Yacker testified at trial.6 It is a closer question whether there was a violation ofthe rule against hearsay. ER 802. Hearsay is a statement made by a declarant, other than while testifying, that is "offered in evidence to prove the truth ofthe matter asserted." ER 801(c). Ms. Barrett argues that the form ofthe question elicited a statement from Mr. Yacker's report. Given the trial court's intervention and direction to only respond "yes or no" rather than relate a statement, there probably was no violation ofthe hearsay rule. Thomas, 150 Wn.2d at 863 (where statement not elicited, no violation ofhearsay rule). Nonetheless, the imprecise wording ofthe question unnecessarily injected a potential hearsay answer into the case and should have been avoided.

5 The substance ofthe statement at issue was Ms. Barrett's statements to Mr. Yacker concerning her use ofthe proceeds ofthe check. When offered against Ms. Barrett, her statement to Mr. Yacker would not itselfbe hearsay. ER 80 1 (d)(2)(i). A recitation ofYacker's report ofthat statement by a third party such as Detective Kimberly presents a different issue.


## , I 6 Ms. Barrett also points to the fact that the detective reviewed the medical records r r contained in the APS investigation. As the author ofthose records, Dr. Penger, also t testified at trial, there likewise was no confrontation issue presented concerning those records. 8No. 32734-5-II1 State v. Barrett Regardless ofthis possible error, there was absolutely no harm to Ms. Barrett. Nonconstitutional error is harmless if, within reasonable probability, it did not affect the verdict. State v. Zwicker, 105 Wn.2d 228,243, 713 P.2d 1101 (1986). Even constitutional error is harmless error ifit is clear beyond a reasonable doubt that the error did not contribute to the verdict. Neder v. UnitedStates, 527 U.S. 1, 15, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999) (citing Chapman v. California, 386 U.S. 18,87 S. Ct. 824,17 L. Ed. 2d 705 (1967)); Thomas, 150 Wn.2d at 840-841. Under either standard, the alleged
error was harmless in this instance. Mr. Yacker testified to the same facts on direct examination and Ms. Barrett did so as well. There was no question butthat she cashed the check and spent some ofthe proceeds. The question presented for thejury'sdecision
was whether she was permitted to do so. This third recitation ofthe same fact, to the extentthat the answer "yes"to the prosecutor's question can be construed in such a manner, was utterly harmless in this case.7 To the extent that there was any error here, it did not impact thejury'sdecision. Ms. Barretthas not established any prejudicial error. Affirmed.

7 The answer the prosecutor was trying to elicit does appear to have been offered for the purpose ofestablishing what the detective did. A statementthat the answer was for the limited purpose ofexplaining the detective's actions would have limited thejury's use ofthe testimony to a proper, nonhearsay, purpose. 9No. 32734-5-111 State v. Barrett
A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but itwill be filed for public record pursuantto RCW 2.06.040.

WE CONCUR:

# ~~f6\&-- Siddoway, C.J. 

# (J"

Lawrence-Berrey,
.

10