State Of Washington, Respondent V. Derek Yates, Appellant

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

)
) No. 76296-6-1
Respondent, )
) DIVISION ONE
Vv. )
) UNPUBLISHED OPINION
DEREK CLINTON YATES, )
)
Appellant. ) FILED: November 13, 2018
)

BECKER, J. — Appellant Derek Yates was convicted of theft in the first
degree. The victim, Eleanor Ludwig, was an octogenarian suffering from
dementia. She initially hired Yates as a handyman. Over time their financial
affairs became intertwined, and Yates obtained almost $300,000 of Ludwig's
money. We conclude the evidence was sufficient to prove theft.

Eleanor Ludwig was born in 1928. According to testimony at trial, she
earned her living as a schoolteacher. Having a shrewd mind for business,
Ludwig accumulated a portfolio of rental properties in the Seattle area. She
owned 15 properties as of 2012.

Ludwig’s friends and family began to notice a decline in her mental
faculties around the time of her husband’s death in 2010. Ludwig increasingly
became confused and anxious. Her office and desk—formerly neatly

organized—became messy and cluttered with piles of unfiled papers.

No. 76296-6-1/2

in 2011 Ludwig met Yates. Yates initially worked for her as a handyman.
Ludwig's granddaughter, who saw her regularly, noticed that as time went on,
Yates’s role progressed beyond that of a simple handyman. He became a fixture
in Ludwig’s life and the focus of her conversations. Ludwig was observed to be
paying him in cash, contrary to her usual practice. Between August 2011 and
March 2012, Ludwig and Yates purchased three condominiums together. They
were both listed on the titles, though Ludwig paid the full purchase price. Yates
renovated the units and collected rent.

in February 2012, Yates’s requests for money increased dramaticaily.
Ludwig began dipping into her savings to satisfy Yates’s demands.

Ludwig's friends and family became alarmed. In September 2012,
Ludwig’s granddaughter exercised her power of attorney to stop any further
payments to Yates. She contacted the Auburn Police Department.

Health care professionals interviewed Ludwig and concluded that she was
suffering from dementia. The State charged Yates with one count of theft in the
first degree in March 2015. The jury was instructed on two alternative means of
theft: that Yates “wrongfully obtained” property belonging to Ludwig, or that he
obtained control over her property by “color and aid of deception.” The State was
required to prove that the property exceeded $5,000 in value.

Ludwig's severe dementia prevented her from testifying at the trial. The
State relied on testimony from friends, family, and financial experts to prove that
Yates obtained Ludwig's money by theft. The jury convicted Yates as charged

and found as an aggravating factor that he knew or should have known that

No, 76296-6-1/3

Ludwig was particularly vulnerable. With the aggravating factor, the sentence
was a prison term of 26 months.

Yates contends the evidence was insufficient to prove either means of
theft. He argues that without testimony from Ludwig, “the best the State could
prove was that Mr. Yates received a substantial amount of money from Ms.
Ludwig.” According to Yates, Ludwig's dementia accelerated only after his arrest
and she displayed minimal symptoms during the charging period of September 2,
2011 to September 5, 2012. He argues there is nothing but speculation to
support the allegation that he took advantage of Ludwig.

The test for determining the sufficiency of the evidence is whether, after
viewing the evidence in the light most favorable to the State, any rational trier of

fact could have found guilt beyond a reasonable doubt. State v. Salinas, 119

Wnh.2d 192, 201, 829 P.2d 1068 (1992). A claim of insufficiency admits the truth
of the State’s evidence and all inferences that reasonably can be drawn

therefrom. Salinas, 119 Wn.2d at 201. When viewed in the light most favorable

to the State, the evidence and reasonable inferences to be drawn therefrom tell a
different story.

The evidence showed that Ludwig suffered from dementia during the
charging period. On September 12, 2012, John Ramsdell, a geriatric mental
health crisis assessor, conducted an evaluation of Ludwig. Ramsdell assigned
Ludwig a score of 14 out of 30, indicating Ludwig was suffering from moderate to

severe dementia. He described the test at trial and testified that Ludwig

No. 76296-6-1/4

struggled with tasks such as simple arithmetic, naming animals, and memory
exercises.

Ramsdell’s diagnosis was consistent with testimony by Ludwig’s friends
and family. They gave examples of Ludwig’s confusion in the early months of
2012, including forgetting her first husband, forgetting that her daughter had
passed away, and getting lost on her way to a friend's house.

The State’s financial analyst determined that, of a total of $297,125 Yates
obtained from Ludwig, only $42,836 could be attributed to material related to his
renovation activities. More than $150,000 in cash was withdrawn from Yates’s
bank accounts with no documentation or receipts. When receipts were available,
they showed that Yates spent Ludwig’s money on water parks, casinos, and
retail shopping. A vintage truck, purchased by Yates with a “loan” from Ludwig
that was supposed to be paid back, was not found and the loan was never
repaid.

The jury heard testimony that Ludwig was fearful of Yates and that Yates
acted aggressively when it came to obtaining money from Ludwig. The jury also
heard testimony that Ludwig could not remember giving Yates as much money
as she did and that she became confused and upset when shown her financial
records. Ludwig's tenants testified that Yates began collecting rent on Ludwig's
behalf. This rental income was never delivered to Ludwig.

The evidence described above was sufficient to lead a reasonable fact
finder to conclude that Yates wrongfully obtained more than $5,000 of Ludwig's

property. To “wrongfully obtain” means to take without consent. The argument

No. 76296-6-1/5

that property, once voluntarily given, cannot be stolen, “is inconsistent with our

case law.” State v. Woodlyn, 188 Wn.2d 157, 168, 392 P.3d 1062 (2017). As

one example, Yates spent $5,200 of Ludwig’s money for a travel trailer, then got
the money back and never returned it to Ludwig. A jury could find the money
was obtained wrongfully because it should have been returned and was not. The
evidence was also sufficient to prove that Yates used deception to obtain large
amounts of cash from Ludwig. As one example, he told her $25,000 was needed
to fix a black mold problem in one of her properties. The black mold problem
was fictional. A jury could find that Yates deceived Ludwig into giving him money
to fix a problem and then keeping the money for his personal use.

Yates contends it is uncertain that the jury verdict was unanimous as to
the means by which he committed theft. “But in alternative means cases, where
substantial evidence supports both alternative means submitted to the jury,

unanimity as to the means is not required.” State v. Armstrong, 188 Wn.2d 333,

340, 394 P.3d 373 (2017). Because both alleged means of theft were proved by
substantial evidence, there was no problem related to the requirement for juror

unanimity.

Affirmed. Beckee, [ |
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WE CONCUR:

Dw. 3