State of Washington v. Richard Bennett 03/31/2000

                          Court of Appeals Division II
                               State of Washington

                            Opinion Information Sheet

Docket Number:       23189-1-II
Title of Case:       State of Washington, Respondent
                     Richard Bennett, Appellant
File Date:           03/31/2000

                                SOURCE OF APPEAL
Appeal from Superior Court of Grays Harbor County
Docket No:      97-1-00449-0
Judgment or order under review
Date filed:     04/13/1998
Judge signing:  Hon. F. M. McCauley

Authored by Karen G. Seinfeld
Concurring: J. Robin Hunt
            Visiting Judge

                                COUNSEL OF RECORD
Counsel for Appellant(s)
            Thomas E. Doyle
            Attorney At Law
            PO Box 510
            Hansville, WA  98340-0510

            Patricia A. Pethick
            Attorney At Law
            PO Box 111952
            Tacoma, WA  98411-1952

Counsel for Respondent(s)
            Jason S. Richards
            Grays Harbor Dep Pros Atty
            Grays Harbor Cnty Prosc
            PO Box 550
            Montesano, WA  98563


STATE OF WASHINGTON,             No.  23189-1-II


     v.                          ORDER
                                 TO AMEND OPINION

                    Appellant.   Filed:

     THE COURT hereby amends the unpublished opinion in the above entitled
action which was filed on March 31, 2000, by changing the year which
appears in the first sentence under the FACTS heading from 1975 to 1995.
     DATED:  this         day of April, 2000.

                                              CHIEF JUDGE ARMSTRONG



STATE OF WASHINGTON,             No.  23189-1-II




                    Appellant.   Filed:

Seinfeld, P.J. -- Richard Bennett appeals both his conviction of first
degree theft by deception and a contempt citation that the trial court
issued after he interrupted the court numerous times during sentencing.  We
affirm the conviction but because the trial court failed to enter findings
on the contempt conviction or to give Bennett an opportunity to speak in
favor of mitigation, as required by statute, we remand for resentencing on
the contempt.


John Boyd, Bennett's theft victim, was a 78-year-old widower whose wife had
died in 1975.  Mrs. Boyd had handled most of the couple's financial affairs
and at the time of her death, the community had approximately $140,000 in
Seafirst Bank.
After Boyd lost his wife, Bennett befriended him.  In return, Boyd gave
Bennett access to his house, thereby permitting Bennett also to gain access
to the financial papers that Boyd kept on a living room desktop.  Bennett
talked to Boyd about investing in an apartment house and a Mercedes-Benz.
Eventually Bennett obtained control over and absconded with Boyd's money.
The Aberdeen Police conducted an investigation of Bennett's activities
regarding Boyd.  As part of this investigation, Officer Clarkson submitted
a 21-page affidavit in support of a search warrant of the West Olympia
Branch of Heritage Bank.  On August 6, 1996, the court approved the warrant
authorizing the search and seizure of the following property:
Heritage Bank Checking Account No. 07120003267 in the name of Shelley A. 
Masters with a second person listed as being able to draw funds from the
account identified as Richard Bennett, to include all bank records,
correspondence, signature cards and documents related to that account
Heritage Bank Savings Account No. 07060001339 in the name of Shelley A.
Masters with a second person listed as being able to draw funds from the
account identified as Richard Bennett, to include all bank records,
correspondence, signature cards and documents related to that account

Clerk's Papers at 34.
Following its investigation, the State charged Bennett with one count of
theft in the first degree by deception, RCW 9A.56.020(1)(b) and RCW
9A.56.030(1)(a).  Bennett then moved to suppress the records seized from
Heritage Bank.  The trial court denied the motion.
At trial, several bank employees testified about the numerous steps
involved in the deception.  Louise Dunjic, a Seafirst Bank employee,
testified that Boyd had somewhere between $90,000 and $100,000 in the
Aberdeen branch bank.  She recommended to Boyd that he consult a financial
expert at Seafirst.
Julia McGinnis, a Seafirst financial advisor, met with Boyd and set up two
investment accounts for him:  one with Seafirst Investments and one with
Franklin Value Mark (FVM).  FVM is a variable annuity in which Boyd
invested $104,000 on September 20, 1995.
Barbara Weatherby, an employee of Heritage Bank, testified that Bennett
came into the bank's West Olympia branch in May 1996 with Shelly Masters,
whom Bennett identified as his wife.  Bennett opened a checking and savings
account in Masters's name.1  Bennett directed that all bank mailings be
sent to his address in Aberdeen.
Weatherby testified that Bennett came into her bank again on May 28, 1996.
This time Bennett came with Boyd and deposited into Masters's savings
account a check made out to Boyd in the amount of $58,300.  On June 19,
1996, Bennett deposited a check made out to Boyd in the amount of $40,000
into the same account.
Weatherby stated that Bennett referred to Boyd as his 'relative, slash,
business partner.'  Weatherby also said Bennett did not want his name on
Masters's bank account because 'he had a problem with money, and if he was
on it, he would just spend it.'  But Bennett had a power of attorney for
the Masters account.
Heritage Bank employee Camille Wilson testified as to the following
transfers between Masters's savings account and her checking account:
$23,300 on May 28, 1996; $12,000 on June 12; $8,000 on July 3, and $20,000
on July 8.  Masters closed the savings account with a final balance of
$16,084.32 on July 12.  Masters closed the checking account on July 24.
Wilson testified that she initiated closing Masters's accounts after
Bennett called and reported that the passbook had been stolen.  Wilson said
Bennett went by the name Ben-neth when he would visit the bank.  Weatherby
had also referred to Bennett as Ben-neth in her testimony.
Over defense objections, Wilson testified that she thought there was
something wrong with Boyd when he was in the bank's lobby.  She stated:
'He seemed very incognizant {sic}.  I thought that either he was either
senile or ill, and so I approached him to see if he was all right.'  But
when Wilson asked Boyd if he was all right, Boyd responded that he was
'okay' and indicated that he was with Bennett.
Jerene Heay worked at the same branch of Heritage Bank.  She testified that
Weatherby introduced Bennett, who seemed very nervous and spoke very fast
about his involvement in international business, construction work, banks
in New York, and the Japanese market.  Heay said Bennett introduced Boyd
'as his father-in-law and business partner.'
Heay then testified that she received a telephone call from a man whom she
recognized as Bennett while she was working at another bank in March or
April of 1997.  Heay said Bennett wanted to come into her branch to discuss
a possible business loan.  Heay stated that Bennett walked into her branch
two or three weeks later, but when she made eye contact with him, he turned
around without speaking and walked out.
Masters testified that she and Bennett, who sometimes went by the name Ben-
neth, divorced in 1990.  She also said that Bennett had told her that Boyd
had agreed to pay him for finding some of Boyd's money allegedly hidden by
Boyd's family; that Bennett had her open the two accounts at Heritage Bank;
and that she and Bennett obtained the initial $4,000 by cashing a check
from Boyd written in Masters's name.  Masters then identified more than 50
checks she had written on the account at Bennett's behest.  Masters said
she sent the bank checks closing the accounts to Bennett, who was somewhere
in Canada, via one of Bennett's employees.
Aberdeen Police Officer Clarkson testified that he contacted FVM in July
1996 as part of his investigation into an allegation that Bennett had taken
approximately $98,000 from Boyd.  FVM mailed him a tape recording of a
telephone conversation involving FVM, Bennett, and Boyd.  Bennett
identified himself as Dick Masters on the tape.
Neville Ranji, an FVM employee, testified about the taped conversation,
explaining that an automatic message informs people calling FVM that their
conversation will be recorded.  Ranji stated that the tape recording FVM
sent Clarkson contained four telephone calls, which were made on May 23,
30, June 12 and 13, 1996.
The May 23 call was from Bennett, who identified himself as Dick Masters
and said he had an urgent request.  He told FVM that he was putting
together a real estate deal and asked FVM to remove $58,300 from the
annuity and send a check to Boyd.  Bennett did most of the talking but he
put Boyd on the phone long enough to authorize the transaction.
The May 30 call also was from Bennett.  This time he complained that he had
not received the $58,300 in time and, therefore, needed another $38,000 to
close the deal.  Again, Bennett put Boyd on the line briefly to approve the
The June 12 call, again from Bennett, was another complaint.  Bennett said
he had not received the previous withdrawal.  Again Boyd spoke briefly to
approve the transaction.  During the fourth call on June 13, Bennett
finalized the withdrawal of $40,000 without Boyd's participation.
David Madding, Bennett's employee, testified that he traveled to Canada
about six times to ferry cash to Bennett.  And Bennett's former business
partner, Eddie Clocks, testified that Bennett gave him a $6,000 check drawn
on Boyd's account.  At Bennett's request, Clocks cashed the check and then
returned the proceeds to Bennett.
In addition, a number of witnesses testified about automobiles Bennett
purchased with Boyd's money.  Craig Standlee testified that he sold a used
Mercedes-Benz to Bennett in May 1996 and that there was an older gentleman
accompanying Bennett whom Bennett identified as his father.  Bennett left
Standlee a calling card identifying himself as 'Richard W. Bennett, M.D.,
president, CEO of Medical Services Group, with offices in Washington,
Arizona, Utah, California, Nevada, Delaware, Texas, Oregon, New York, and
Larry Quartano testified that Bennett came into his auto painting and
bodywork shop in June 1996, identified himself as Richard Masters, and
ordered a total restoration of a 1977 Mercedes-Benz.  Bennett paid a $2,000
deposit in cash and later sent another deposit of $5,000.  Quartano said
Bennett was accompanied by an older gentleman Bennett identified as his
As part of his investigation, Clarkson talked to Bennett by phone on July
30, 1996.  According to Clarkson, Bennett said he might go to Canada to
avoid arrest and that he took Boyd's money to keep it out of the hands of
Boyd's relatives.
Clarkson said Bennett played over the telephone a recorded conversation
between Bennett and Boyd.  On the recording, Bennett asked Boyd if he could
keep one-half of the money that Bennett found and Boyd replied 'yes.'
According to Clarkson, Boyd's voice was low and slow.  Bennett did not give
Clarkson a copy of the recording.
Clarkson said Bennett called him from Canada in October 1996.  Bennett told
him he wanted to come home.  Clarkson told him there was no warrant for his
arrest at that time.
Then, Clarkson recounted the following part of their conversation:
We had a long talk about his life, and he told me that he was an alcoholic,
a drug addict, and he described himself as a pathological liar.  He said
that he wanted to straighten things out, and that he wanted to take care of
what he had done to Mr. Boyd.

Report of Proceedings at 289.

     Clarkson finally met with Bennett at an interview between Bennett and
FBI Special Agent Joe Lurf at the Aberdeen Police Station.  According to
Mr. Bennett spoke about how he had spent the money from Mr. Boyd's account,
and he went through a description of vehicles, some of which were purchased
here, in Aberdeen, a couple of them were purchased later on, in Canada.  He
stated that he had also used Mr. Boyd's credit cards, and he stated that he
had spent money from - that he had obtained from the accounts or the credit
cards on drugs, on alcohol, and on lodging and other expenses that he had
in Canada.

Report of Proceedings at 291-92.

     Lurf testified that Bennett had told him about discovering Boyd's
'true worth' from documents in Boyd's house.  Bennett also told Lurf that
he had initially intended to invest Boyd's money but then started to spend
it without Boyd's permission.  Bennett also admitted his involvement in
transferring funds from FVM to the Heritage Bank account for his own
personal use.
     Bennett, testifying on his own behalf, stated that he and Boyd had
entered into a series of investments to protect Boyd's assets from
relatives.  He admitted, however, that he later used 'real bad judgment'
and started 'mismanaging the money{.}'  Although he admitted that he was a
pathological liar, he denied any intent to steal Boyd's money.  Bennett
asserted that Boyd had no knowledge of the FVM account until Bennett found
it, and that Boyd promised to let Bennett have half of that money.
The jury convicted Bennett of the charged crime.  As the trial court was
pronouncing sentence, the following exchange occurred:
The Defendant:  Could I say something?
The Court:  No.  No, you cannot.  No, you cannot.  You've had your say.
I'm talking now.  He was in a condition where he was in need of some
companionship.  He was not the one that handled the finances in the family;
it was his wife, who had recently died.  And you come along, under the
pretense of being a friend, and strip this man of his entire estate.
The Defendant:  That isn't true.
The Court:  I don't want you to speak.
The Defendant:  I'm not letting you go on -
The Court:  I'm going on with this.  Keep your mouth closed.
The Defendant:  This man could have been two years ago -
The Court:  I'll find you in contempt if you continue to -
The Defendant:  The truth is the truth.
The Court:  This was a situation that clearly was an offense of a major
economic nature under the statute.  There was one charge but there were at
least two incidents where he, through conning Mr. Boyd and the people that
Mr. Boyd had his deposits with, he acquired over $95,000 and then wasted it
away on drugs - as he admitted, on drugs and his own personal use.  To say
this was not a major economic situation would be unbelievable, from my
point of view, the monetary loss, I think, close to a hundred thousand
dollars, probably more.  I mean, I think there was use of credit cards.
There was never any proof of it, but I certainly could infer from the
testimony that he bled Mr. Boyd of far more than the $95,000.
The Defendant:  That's not true.  That's not true.
The Court:  That just cost you another 30 days on top of what I'm going to
give you.

Sentencing Report of Proceedings at 16-17.

At sentencing on the theft conviction, the trial court also imposed a 30-
day sentence for contempt by simply noting '+ 30 days for contempt' on the
theft judgment and sentence form.3 The court did not issue a separate order
of contempt before imposing sentence or invite Bennett to speak in
mitigation of the contempt.
     Bennett appeals the theft conviction and the contempt sanction.
I.  Jury Instructions
Although Bennett did not request a unanimity instruction at trial, on
appeal he claims that the trial court erred in not instructing the jury
that it had to be unanimous as to the particular transaction  or  series
of  transactions   that   constituted  the  theft.    The  State  contends
that  a
unanimity instruction was unnecessary because Bennett's acts constituted a
continuing course of criminal conduct.
'In Washington, a defendant may be convicted only when a unanimous jury
concludes that the criminal act charged in the information has been
committed.'  State v. Petrich, 101 Wn.2d 566, 569, 683 P.2d 173 (1984)
(citing State v. Stephens, 93 Wn.2d 186, 190, 607 P.2d 304 (1980)),
modified in State v. Kitchen, 110 Wn.2d 403, 756 P.2d 105 (1988).  'When
the evidence indicates that several distinct criminal acts have been
committed, but the defendant is charged with only one count of criminal
conduct, jury unanimity must be protected.'  Petrich, 101 Wn.2d at 572.
     To protect jury unanimity in multiple act cases, jury instructions
must provide for either:  (1) the election of one act, or (2) a unanimity
instruction.  Petrich, 101 Wn.2d at 572.  Where the evidence indicates
several distinct acts that could support a conviction, the State may elect
the act upon which it will rely for conviction.  State v. Camarillo, 115
Wn.2d 60, 64, 794 P.2d 850 (1990); Kitchen, 110 Wn.2d at 411; Petrich, 101
Wn.2d at 572.  If the State does not make such an election, the trial court
must instruct the jury 'that all 12 jurors must agree that the same
underlying criminal act has been proved beyond a reasonable doubt{.}'
Petrich, 101 Wn.2d at 572; see also Camarillo, 115 Wn.2d at 64; Kitchen,
110 Wn.2d at 411.
     But the court need not give a Petrich instruction if the evidence
shows that the defendant committed a single continuing offense.  See State
v. Crane, 116 Wn.2d 315, 330, 804 P.2d 10 (1991) (assaults resulting in
death).  Multiple acts aimed at a single overriding objective, such as
making money, may constitute a continuing course of conduct.  See, e.g.,
State v. Doogan, 82 Wn. App. 185, 192, 917 P.2d 155 (1996) (evidence of
prostitution enterprise 'showed a 'systematic pattern of exploitative
conduct'').  'To determine whether one continuing offense may be charged,
the facts must be evaluated in a commonsense manner.'  Petrich, 101 Wn.2d
at 571; see also State v. Gooden, 51 Wn. App. 615, 618, 754 P.2d 1000
(1988) (quoting Petrich).
     Here, the information charged Bennett with obtaining control of Boyd's
money 'on or between May 23, 1995, and June 13, 1996{.}'4  The evidence
shows: (1) Bennett contacted FVM four times during that period to
facilitate two withdrawals of nearly all of the money in Boyd's annuity;
(2) Bennett opened Heritage Bank accounts in his ex-wife's name and
deposited Boyd's money into those accounts; and (3) Bennett used that money
for his own personal use.
     Reviewing the foregoing facts and applying a commonsense
interpretation, we conclude that the evidence demonstrates a continuous
course of conduct aimed at a single criminal objective - obtaining control
of Boyd's money.  Doogan, 82 Wn. App. at 192; State v. Love, 80 Wn. App.
357, 362, 908 P.2d 395 (1996); State v. Fiallo-Lopez, 78 Wn. App. 717, 726,
899 P.2d 1294 (1995); State v. Barrington, 52 Wn. App. 478, 481, 761 P.2d
632 (1988); Gooden, 51 Wn. App. at 620.  Accordingly, neither an election
of a single act nor a unanimity instruction was necessary.  Love, 80 Wn.
App. at 363; Gooden, 51 Wn. App. at 620.
II.  Search Warrant
Bennett next asserts that the search warrant violated the probable cause
and particularity requirements of the Fourth Amendment.
     The Fourth Amendment provides that 'no Warrants shall issue, but upon
probable cause, supported  by  Oath  or  affirmation,  and  particularly
describing  the  place  to  be searched, and
persons or things to be seized.'  U.S. Const. amend. IV; see State v.
Riley, 121 Wn.2d 22, 28, 846 P.2d 1365 (1993); State v. Gebaroff, 87 Wn.
App. 11, 15, 939 P.2d 706 (1997).
     With regard to the probable cause requirement, this court recently
A magistrate asked to issue a search warrant is entitled to draw reasonable
inferences from the facts and circumstances related, State v. Maffeo, 31
Wn. App. 198, 200, 642 P.2d 404 (1982), and the question of probable cause
to issue a search warrant should not be viewed in a hypertechnical manner,
State v. Remboldt, 64 Wn. App. 505, 510, 827 P.2d 282 (1992), but
reasonably and with commonsense {sic}, resolving doubts in favor of the
warrant.  State v. Young, 123 Wn.2d 173, 195, 867 P.2d 593 (1994).

Gebaroff, 87 Wn.2d at 15.

     Here, Bennett cites Gebaroff as support for the proposition that the
affidavit did not connect a crime under investigation to the place to be
searched.  See Gebaroff, 87 Wn.2d at 15.  But the affidavit clearly related
to an allegation that Bennett stole money from Boyd and that the stolen
funds could be traced to two specific bank accounts based at the West
Olympia branch of Heritage Bank.  A magistrate reviewing the affidavit
could reasonably infer that the Heritage Bank accounts located at the West
Olympia branch pertained to the stolen funds or related documentation.
Maffeo, 31 Wn. App. at 202.
     Bennett cites Riley as support for the proposition that the warrant
was defective because it did not specify the crime under investigation.
Riley, 121 Wn.2d at 27 ('A search warrant that fails to specify the crime
under investigation without otherwise limiting the items that may be seized
violates the particularity requirement of the Fourth Amendment.').  The
warrant in Riley was invalid because 'it neither specified what crimes were
being investigated nor otherwise limited the scope of the search by
reference to particular items to be seized.'  121 Wn.2d at 27.
     Here, the search warrant averred that it pertained to the possession
of stolen property, a crime under RCW 9A.56.140.  The warrant identified
the items to be seized as two specific accounts, including 'all bank
records, correspondence, signature cards and documents related to that
account number.'  Thus, it satisfies the particularity requirement of the
Fourth Amendment.  State v. Stenson, 132 Wn.2d 668, 693-94, 940 P.2d 1239
(1997), cert. denied, 523 U.S. 1008 (1998).  Consequently, the trial court
did not err in denying the motion to suppress.
III.  Contempt
Bennett seeks reversal of the contempt conviction and remand for
resentencing.  He contends that the trial court violated RCW 7.21.050(1) by
(1) failing to enter written findings and (2) by neglecting to give him an
opportunity to mitigate the contempt.5
     We review a trial court's imposition of a contempt sanction for abuse
of discretion.  Schuster v. Schuster, 90 Wn.2d 626, 630, 585 P.2d 130
(1978); State v. Dugan, 96 Wn. App. 346, 351, 979 P.2d 885 (1999); In re
Marriage of Humphreys, 79 Wn. App. 596, 599, 903 P.2d 1012 (1995).   'A
trial court abuses its discretion when it exercises it in a manifestly
unreasonable manner or bases it upon untenable grounds or reasons.'  Dugan,
96 Wn. App. at 351.
     A trial court may impose a contempt sanction on the basis of either
its constitutional authority or a statute.  State v. Hobble, 126 Wn.2d 283,
292, 892 P.2d 85 (1995).  Here, as in Hobble, the trial court did not
specify the basis for its contempt sanction.  126 Wn.2d at 292.  But an
appellate court may uphold a finding of contempt if it can find a proper
basis.  Hobble, 126 Wn.2d at 292; State v. Boatman, 104 Wn.2d 44, 46, 700
P.2d 1152 (1985).
     It appears that the trial court imposed the summary contempt sanction
here under RCW 7.21.050(1).  Hobble, at 293.  RCW 7.21.050(1) states:
The judge presiding in an action or proceeding may summarily impose either
a remedial or punitive sanction authorized by this chapter upon a person
who commits a contempt of court within the courtroom if the judge certifies
that he or she saw or heard the contempt.  The judge shall impose the
sanctions immediately after the contempt of court or at the end of the
proceeding and only for the purpose of preserving order in the court and
protecting the authority and dignity of the court.  The person committing
the contempt of court shall be given an opportunity to speak in mitigation
of the contempt unless compelling circumstances demand otherwise.  The
order of contempt shall recite the facts, state the sanctions imposed, and
be signed by the judge and entered on the record.

     A trial court's failure to produce written findings of contempt may
necessitate remand for entry of such findings.  Templeton v. Hurtado, 92
Wn. App. 847, 850-51, 853, 965 P.2d 1131 (1998) (oral ruling but no written
findings).  A trial court's order of contempt must contain at least a 'bare
minimum' recitation of the salient facts in order to comply with RCW
7.21.050(1).  Hobble, 126 Wn.2d at 295 (written finding that defendant's
refusal to answer questions constituted contempt).  Here, where the trial
court failed to identify the facts constituting contempt on the record, but
instead merely noted, '+ 30 days for contempt' on the judgment and sentence
form, it did not satisfy this 'bare minimum' test.
In Hurtado, the trial transcript clearly indicated the basis for the
contempt sanction; the defendant defiantly refused to sign a no-contact
order.  92 Wn. App. at 850.  Nonetheless, the Hurtado court held that the
trial court's oral ruling did not obviate the requirement for written
findings.  Hurtado, 92 Wn. App. at 853.
     The Hurtado court applied by analogy the holding of State v. Head, 136
Wn.2d 619, 964 P.2d 1187 (1998).  The Head court reasoned that a trial
court's failure to enter written findings of fact and conclusions of law at
the conclusion of a bench trial pursuant to CrR 6.1(d) requires remand for
entry of such record.  136 Wn.2d at 621-22.  The Head court rejected the
proposition that the trial court's oral ruling was sufficient, reasoning
that oral rulings are not binding until reduced to writing and that written
findings are necessary to allow proper review of issues raised on appeal.
136 Wn.2d at 622-23.
     The Hurtado court also relied on dictum in Hobble advising 'trial
courts to provide a thorough description of the relevant facts sufficient
in law to show contempt.''  Hurtado, 92 Wn. App. at 853 (quoting Hobble,
126 Wn.2d at 295).  In addition, it quoted State ex rel. Dunn v. Plese, 134
Wash. 443, 449, 235 P. 961 (1925), wherein the Supreme Court reasoned:
If, as we have held, findings are necessary in the ordinary case, they
ought to be more useful and necessary in a case of this character where the
defendant may not only be fined but imprisoned.  This court ought to know
upon what specific acts the trial court held appellant to be guilty of

(quoted with approval in Hurtado, 92 Wn. App. at 852).

     The State challenges the reasoning of Hurtado but fails to cite to any
authority.  In any event, we agree with the Hurtado court's reasoning; the
plain wording of the statute requires the trial court to enter an order of
contempt that recites the facts and states the sanctions, a requirement
that helps assure a reasoned decision and facilitates review of the order.
See Erection Co. v. Department of Labor & Indus., 121 Wn.2d 513, 518, 852
P.2d 288 (1993); State v. Wright, 97 Wn. App. 382, 383, 985 P.2d 411 (1999)
(statute's use of the word 'shall' indicates mandatory requirement).
     In addition, the statute requires the trial court to give the
contemnor an opportunity to mitigate the contempt.  RCW 7.21.050(1).   The
right to mitigate operates as a check against potential abuse of the trial
court's power to punish contempt summarily.  Hurtado, 92 Wn. App. at 854.
''The right is so basic that it will not be inferred from the record.''
Hurtado, 92 Wn. App. at 854 (quoting Contempt in State v. Kruse:  Oliveto
v. Circuit Court for Crawford County, 194 Wis. 2d 418, 435, 533 N.W.2d 819
(1995)).  A trial court's failure to provide this opportunity requires
remand.  Hurtado, 92 Wn. App. at 855.
The State suggests, again without authority, that Bennett, by engaging in
such flagrant contempt, waived his right to mitigate.  See Holland v. City
of Tacoma, 90 Wn. App. 533, 538, 954 P.2d 290, review denied, 136 Wn.2d
1015 (1998) (passing treatment of issue or lack of reasoned argument
insufficient to merit judicial consideration).  We disagree.
The contemptuous behavior arose out of Bennett's desire to speak to the
court.  Although it was appropriate for the court to deny him that
opportunity when it was in the midst of pronouncing sentence, there was no
reason not to allow him to speak at the point when he had a statutory right
to do so.
Consequently, we find that the trial court abused its discretion by not
entering written findings and by not allowing Bennett to speak in
mitigation of the contempt sentence.  Thus, we vacate the 30-day sentence
and 'remand for a new hearing on the appropriate sanction for contempt
after {Bennett} is given an opportunity to speak in mitigation.'  Hurtado,
92 Wn. App. at 855.
IV.  Sufficiency of the Evidence
In his pro se supplemental brief, Bennett argues that there was
insufficient evidence to convict him of theft in the first degree.
     RCW 9A.56.030(1) states in pertinent part:  'A person is guilty of
theft in the first degree if he or she commits theft of: (a) Property or
services which exceed(s) one thousand five hundred dollars in value other
than a firearm as defined in RCW 9.41.010{.}'  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 of such property or services{.}'
In reviewing a sufficiency of the evidence challenge, we apply a
deferential standard to the jury verdict, drawing all reasonable inferences
from the evidence in favor of the State and interpreting them most strongly
against the defendant.  State v. Joy, 121 Wn.2d 333, 339, 851 P.2d 654
(1993); State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).  We
defer to the jury on the credibility of witnesses and the persuasiveness of
evidence.  State v. Bonisisio, 92 Wn. App. 783, 964 P.2d 1222 (1998),
review denied, 137 Wn.2d 1024 (1999).
A jury may infer criminal intent from a defendant's conduct where it is
plainly indicated as a matter of logical probability.'  State v. Myers, 133
Wn.2d 26, 38, 941 P.2d 1102 (1997) (citing State v. Bright, 129 Wn.2d 257,
270, 916 P.2d 922 (1996)).  'Circumstantial evidence provides as reliable a
basis for findings as direct evidence.'  Myers, 133 Wn.2d at 38.
Bennett claims that he had no intent to deprive Boyd of his money, rather,
he merely entered a legitimate investment partnership or joint venture
wherein Boyd promised Bennett half of the proceeds.  But Bennett readily
admitted to being a pathological liar and the evidence portrays a scenario
where Bennett convinced Boyd, an easily confused and vulnerable man, to
entrust nearly all of the money in his annuity to Bennett.  The record also
shows that Bennett used the funds for his personal enjoyment.  This
evidence is more than sufficient to persuade a reasonable juror beyond a
reasonable doubt that Bennett intended to deceive Boyd and acted under that
cloak of deception to steal his money.  See Myers, 133 Wn.2d at 38.
Bennett also asserts that he could have not have stolen the money because
he was Boyd's business partner and thus had no control over the disputed
funds. But the cases that Bennett relies upon,  State v. Birch, 36 Wn. App.
405, 675 P.2d 246 (1984) and State v. Eberhart, 106 Wash. 222, 179 P. 853
(1919), have been superseded by RCW 9A.56.010(7)(c), which makes theft of
partnership property a crime.  See State v. Webb, 64 Wn. App. 480, 489-90,
824 P.2d 1257 (1992).  Consequently, Bennett's 'partnership' theory is
devoid of any merit.
We affirm the theft conviction but remand the contempt citation for further
proceedings consistent with this opinion.
     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 pursuant to RCW 2.06.040, it is so ordered.

                                                      Seinfeld, P.J.

We concur:

Hunt, J.

Tabor, J.P.T.

1 The opening balance on each account was $2,000 from Boyd's checking
2 Bennett admitted at trial that the information on the business card was
3 The trial court imposed an exceptional sentence on the theft conviction,
which Bennett challenged on appeal.  A commissioner of this court issued a
ruling affirming sentence and the court denied Bennett's subsequent motion
to modify the commissioner's ruling.
4 The reference to 1995 appears to be a typographical error.  Bennett first
called FVM on May 23, 1996.  Bennett does not allege the typo was
5 Bennett does not claim that he did not commit contempt.  And his
disruptive behavior fits the definition of contempt set forth in RCW
7.21.010(1)(a) ('Disorderly, contemptuous, or insolent behavior toward the
judge while holding the court, tending to impair its authority, or to
interrupt the due course of a trial or other judicial proceedings{.}').
See, e.g., In re Salvesen, 78 Wn.2d 41, 46, 469 P.2d 898 (1970) (witness's
act of defiance before court warranted summary contempt sanction).
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