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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, Respondent,

v. SAMANTHA JEAN PIERCE, Appellant. NO. 69952-1- DIVISION ONE

UNPUBLISHED OPINION FILED: July 28, 2014


### Lau, J. —Samantha Pierce appeals her conviction of first degree theft, challenging the admission of (1) an exhibit summarizing thousands offinancial transactions in addition to the charged conduct and (2) the victim's videotaped deposition. Because Pierce fails to establish any abuse ofdiscretion, we affirm. Inthe 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 himselfand his wife Sophia. After Sophia died in February 2007, Pierce continued as Doces's personal assistant. In September 2007, Doces opened ajoint bank account and credit card accountwith 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 heractivities to the police.69952-1-1/2 

### The State charged Pierce withone count of firstdegree theft based on a series of transactions occurring between September25, 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 ofresistance and thatvulnerabilitywas a substantial factor inthe commission ofthe offense and (2) Pierce used herposition of trust, confidence, or fiduciary responsibility to facilitate the commission ofthe offense. Prior to trial, the State indicated an intention to introduce summaries ofbank records that included thousands oftransactions in addition to the 273 transactions making up the criminal offense. Pierce moved to exclude the summaries as more 

### prejudicial than probative, cumulative ofwitness 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 incompetentto 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 ofthe deposition and that he lacked personal knowledge ofthe events to which he testified inthe deposition. After viewing the deposition, the court ruled that itwas admissible. At trial, the State presented the testimony offinancial analyst Rebecca Tyrell, 

### who testified at length about her review ofover 3,000 pages ofbank records. Tyrell showed a series ofslides to thejury summarizing the extent and types ofaccounts Doces held between 2003 and 2009. Tyrell traced changes inspending habits from the69952-1-1/3 

### various accounts overtime and compared average spending invarious categories before Doces hired Pierce, after Pierce began working inthe Doces household, and after Pierce became a signeron certain accounts. Tyrelldisplayed examples ofchecks written and items purchased during the differenttime frames. Tyrell also described
sources offunds and various transfers between accounts. Inhertestimony, Tyrell described the organization ofexhibit 93, three binders containing the records ofthe 273 transactions forming the basis ofthe 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 thejury. The trial court instructed thejury: The State's charges allege only those transactions that are included in State's Exhibit #93. Othertransaction evidence, not included in State's Exhibit#93, has been admitted inthis case for the limited purpose ofconsidering the defendant's 

### opportunity, intent, and plan. You may not consider it for any other purpose. This evidence of othertransactions that are not part ofthe State's 

### charges, and are not included inState's exhibit #93. Any discussion of this evidence during your deliberations must be consistentwith this limitation. The State also presented Doces's videotaped deposition for thejury as exhibit 

### 97. Thejury 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 thatexhibit 94 was 

### cumulative to Tyrell's testimony, overwhelming in volume, and likely to confuse and distract thejurors.

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### Wewill notreverse the trial court's decision as to the admissibility of evidence absent an abuse of discretion, "which 'occurs onlywhen no reasonable person would take the viewadopted bythe trialcourt.'" State v. Atsbeha. 142 Wn.2d 904, 914, 16 

### P.3d 626 (2001) (quoting State v. Ellis. 136Wn.2d 498, 504, 963 P.2d 843 (1998)). Relevant evidence "may be excluded ifits probative value is substantially outweighed by the dangerof unfair prejudice, confusion of the issues, or misleading thejury, or by considerations ofundue 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 thatthe 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 carefullydescribed its reasoning in a thorough oral ruling. The court specifically determined thatthe summaries in exhibit 94 would assistthejury 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 inthe 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 

### orother specific stores, orwhether he remembered spending $17,000 at Eddie Bauer during the charging period. 

### Awitness musttestify 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 onlyif, as a matter oflaw, no trier of fact could 

### reasonably find that the witness had firsthandknowledge." State v. Vaughn, 101 Wn.2d 604, 611-12, 682 P.2d 878 (1984). 

### The record is clearthat Doces was present and participated in hiring Pierce, 

### agreeing to her duties and pay, and opening ajointaccountwith her. Although Doces did not have clear memories of all the details, as the trial court observed, he could 

### identify Pierce,knewthat she worked for him, and was aware of the duties she 

### performed for him. And as the State points out, given Pierce'sclaimthat Doces authorized andapproved all hertransactions, Doces'slackofpersonal knowledge of certain transactions was itself probative evidence. Pierce fails to demonstrate any abuse ofdiscretion inthe admission ofthe videotaped deposition. Affirmed.

WE CONCUR: 

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