No. 23189-1, State Of Washington, Respondent
V. Richard Bennett, Appellant
Nature of Case:
Appeal from theft in the first degree by deception, claiming error in the lack of unanimity instruction, an overly broad warrant, and failure in not allowing the defendant to speak in mitigation of contempt.
Richard Bennett was charged with theft in the first degree by deception. During a CrR 3.5 hearing, the defense stipulated that the appellant’s statements were admissible pursuant to Miranda. The jury found the defendant guilty and he was given an exceptional sentence of 72 months plus 30 days for contempt. He was also ordered to pay restitution.
Mr. John Boyd is 78 years old victim and widower. He met the defendant when he was delivering papers to him on his route. Mr. Boyd stated that he did not give money to Mr. Bennett as a gift. In September 1995, Mr. Boyd invested in a $104,000 variable annuity with FVM.
In May 1996, Mr. Bennett and Shelley Masters opened a savings and checking account in Masters name at Heritage Bank. Bennett was not a signatory but later received a power of attorney card in regards to the accounts. Between May 28, 1996, and July 8, 1996, $63,300 was deposited into Master’s savings account via checks made out to Boyd and then transferred into Master’s checking account.
Heritage Bank closed the savings account July 12, 1996, after Bennett told it that documents related to the account were either missing or lost. A check for $16,084.32 was made out to Masters and the checking account was closed July 24.
Shelley Masters stated that Bennett told her he had found money Boyd’s family was hiding from him and that Boyd had told Bennett he could have half of the money for finding it. The accounts at Heritage had been established with a $4,000 check from Boyd. She had written and signed checks at Bennett’s direction and had forwarded the $16,084.32 check
to Bennett after endorsing it. She did not know what Bennett did with the money.
Bennett spoke with FVM on four occasions, all of which were tape-recorded. On May 23, 1996, the first call, Bennett introduced himself as Dick Masters and explained that he was working on Boyd’s “portfolio in an investment for him”. He stated Boyd needed $55,000
to make an offer on a foreclosure sale for an apartment building. Which, at the time of trial, was in Boyd and Bennett’s name. Boyd authorized the transaction and FVM agreed to a partial surrender of $58,300 (including surrender penalty charges). The check was issued the next day. On May 30, Bennett called again asking for $30,000 because the initial transfer was late. Due to the delay, FVM issued a $40,000 check without surrender fees on June 13, 1996.
Masters and Eddie Clocks cashed checks for Bennett in amounts varying from $400-$16,000. Bennett purchased a minivan, Mercedes, rented a copy machine for his business, did repair work on the Mercedes, a Dodge Dart, Buick, and a Lincoln. At some point, Bennett moved to Canada and had Masters forward money to him there.
Sergeant James Clarkson spoke with Bennett on July 30, 1996. Bennett told him he had taken Boyd’s money to protect it from Boyd’s relatives. He played a tape recording on which Bennett had asked Boyd if he could have half of the money and Boyd had stated yes. Clarkson said the response was “slow”.
Special Agent Joe Lurf of the FBI interviewed Bennett. In addition to what Clarkson reported, Bennett told Lurf that he started using Boyd’s money without Boyd’s permission or knowledge and that he had used the funds for his personal use. At trial, he admitted that none of the cars he purchased were registered in Boyd’s name and the entire amount of $98,300 deposited in Heritage Bank came from Boyd’s annuity with FVM.
1. Did the trial court err when it refused to instruct the jury that it must be unanimous on which transaction(s) constituted which crime charged when the State did not elect the transaction(s) it was relying upon to prove the crime?
2. Was the warrant overbroad when it does not list the crime under investigation and the affidavit for the warrant was not attached or incorporated into the warrant by reference?
3. Did the trial court err when it refused to allow Bennett to speak in mitigation of the contempt of court and submit written findings specifying the act the court found contemptuous?