Opinion · Washington Court of Appeals Opinions
STATE v. PEACEY, 152 Wn. App. 1022 (2009)
STATE OF Wash., Respondent, v. KAREN MARIE PEACEY, Appellant., 152 Wash. App. 1022 (Wash. Ct. App. 2009)
- Type
- Opinion
- Court
- Washington Court of Appeals Opinions
- Jurisdiction
- Washington
- Date
- 2009-09-21
- Topic
- general
STATE v. PEACEY, 152 Wn. App. 1022 (2009) THE STATE OF WASHINGTON, Respondent, v. KAREN MARIE PEACEY, Appellant. No. 62442-3-I.The Court of Appeals of Washington, Division One.
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STATE v. PEACEY,152 Wn. App. 1022(2009)
THE STATE OF WASHINGTON, Respondent, v. KAREN MARIE PEACEY, Appellant.
No. 62442-3-I.
The Court of Appeals of Washington, Division One.
September 21, 2009.
Appeal from the Superior Court, Snohomish County, No. 08-1-00637-3, Richard J. Thorpe, J., entered September 10, 2008.
Affirmedby unpublished opinion per Ellington, J., concurred in by Schindler, C.J., and Leach, J.
Karen Peacey appeals her conviction and sentence for first degree theft. She contends the court abused its discretion by admitting certain evidence and by imposing an excessive exceptional sentence. We disagree and affirm.
Subsequent investigation revealed that Peacey had also written numerous unauthorized checks to herself. A forensic accountant determined that Peacey paid herself in excess of $166,000 in 2006 and $67,000 in 2007.
The State charged Peacey with one count of aggravated first degree theft, alleging the offense amounted to a major economic offense and that Peacey had abused a position of trust to facilitate its commission.
Before trial, Peacey moved to exclude any testimony concerning her alleged drug use or addiction. The court denied the motion, but limited any such testimony to Peacey's own statements.
A jury convicted Peacey as charged and found by special verdict that she abused a position of trust to facilitate the crime and that the crime constituted a major economic offense.
On the basis of the jury's finding of aggravating circumstances, the court imposed an exceptional sentence of 60 months' confinement. The standard range for someone convicted of first degree theft with no prior criminal record is 0 to 90 days.
Peacey appeals.
Peacey next argues the court erred by imposing the 60 month sentence.
Appellate review of exceptional sentences is statutorily limited. To reverse a sentence outside the standard range, the reviewing court must find that the reasons supplied by the sentencing court are not supported by the record, that those reasons do not justify an exceptional sentence, or that the sentence imposed was clearly excessive or clearly too lenient.2
Peacey contends her sentence was clearly excessive. We review that issue for abuse of discretion.3The length of a sentence is not clearly excessive unless it is "`shown to be clearly unreasonable, i.e., exercised on untenable grounds or for untenable reasons, or an action that no reasonable person would have taken.'"4
First degree theft is a class B felony with a maximum penalty of 120 months' confinement.5The standard range for one with no criminal history is 0 to 90 days in custody.6
Peacey received a sentence of 60 months. She points out the sentence of 60 months is 20 times the high end of her standard sentence range. But beyond noting this mathematical fact, Peacey offers no argument or authority to support her position that the sentence is clearly excessive.
Instead, Peacey appears to argue the court abused its discretion in imposing an exceptional sentence because "the record . . . is silent as to what factors the jury agreed upon in returning a finding of major economic offense" and "fails to establish a consensus by the jury as to the amount of money taken by Ms. Peacey."7Again, Peacey fails to support with argument or citation to authority her suggestions that the jury must be unanimous about the particular facts relied upon to find the major economic offense aggravator or must set forth those facts in a special interrogatory. We therefore decline to address the issue.8
The evidence showed Peacey had written herself unauthorized checks totaling $166,247.07 in 2006 and $67,196.56 in 2007. The jury found two separate aggravating factors: that this amounted to a major economic crime and that Peacey had "use[d] a position of trust and fiduciary responsibility to facilitate the commission of the crime."9Noting that a person may be convicted of first degree theft for taking as little as $1,500, the court pointed out that Peacey's "crime was 56 times what you were convicted of" because "[w]ithout any authority . . . to do so, you wrote 56 checks over $1,500."10The court agreed with the jury's findings, and on that basis determined "that there are exceptional circumstances allowing and demanding a sentence in excess of the standard sentencing range."11
As Peacey concedes, the record and jury findings were sufficient for the trial court to find substantial and compelling reasons to justify an exceptional sentence. The sentence imposed represents the midpoint between the least and most amount of time Peacey could have received and is not "`so long that, in light of the record, it shocks the conscience.'"12Accordingly, we find no abuse of discretion.
Affirmed.
WE CONCUR.
BACKGROUND
Peacey had worked for nearly 20 years as a bookkeeper for Olympic Mechanical when the owners discovered she had used a company credit card to buy over $2,000 worth of jewelry for herself without authorization. Peacey initially denied any knowledge of the matter. Later, however, Peacey tearfully confessed. She promised to repay the money and never to do it again, and explained that she had an addiction to prescription drugs and needed treatment.
Subsequent investigation revealed that Peacey had also written numerous unauthorized checks to herself. A forensic accountant determined that Peacey paid herself in excess of $166,000 in 2006 and $67,000 in 2007.
The State charged Peacey with one count of aggravated first degree theft, alleging the offense amounted to a major economic offense and that Peacey had abused a position of trust to facilitate its commission.
Before trial, Peacey moved to exclude any testimony concerning her alleged drug use or addiction. The court denied the motion, but limited any such testimony to Peacey's own statements.
A jury convicted Peacey as charged and found by special verdict that she abused a position of trust to facilitate the crime and that the crime constituted a major economic offense.
On the basis of the jury's finding of aggravating circumstances, the court imposed an exceptional sentence of 60 months' confinement. The standard range for someone convicted of first degree theft with no prior criminal record is 0 to 90 days.
Peacey appeals.
DISCUSSION
Peacey first contends the court erred by admitting evidence of her drug addiction under ER 608 and ER 404(b). But the evidence was not offered under either of these rules, and her sole objection below was made under ER 403, an argument she abandons on appeal. Because she has not preserved the issue, we decline to address it.1
Peacey next argues the court erred by imposing the 60 month sentence.
Appellate review of exceptional sentences is statutorily limited. To reverse a sentence outside the standard range, the reviewing court must find that the reasons supplied by the sentencing court are not supported by the record, that those reasons do not justify an exceptional sentence, or that the sentence imposed was clearly excessive or clearly too lenient.2
Peacey contends her sentence was clearly excessive. We review that issue for abuse of discretion.3The length of a sentence is not clearly excessive unless it is "`shown to be clearly unreasonable, i.e., exercised on untenable grounds or for untenable reasons, or an action that no reasonable person would have taken.'"4
First degree theft is a class B felony with a maximum penalty of 120 months' confinement.5The standard range for one with no criminal history is 0 to 90 days in custody.6
Peacey received a sentence of 60 months. She points out the sentence of 60 months is 20 times the high end of her standard sentence range. But beyond noting this mathematical fact, Peacey offers no argument or authority to support her position that the sentence is clearly excessive.
Instead, Peacey appears to argue the court abused its discretion in imposing an exceptional sentence because "the record . . . is silent as to what factors the jury agreed upon in returning a finding of major economic offense" and "fails to establish a consensus by the jury as to the amount of money taken by Ms. Peacey."7Again, Peacey fails to support with argument or citation to authority her suggestions that the jury must be unanimous about the particular facts relied upon to find the major economic offense aggravator or must set forth those facts in a special interrogatory. We therefore decline to address the issue.8
The evidence showed Peacey had written herself unauthorized checks totaling $166,247.07 in 2006 and $67,196.56 in 2007. The jury found two separate aggravating factors: that this amounted to a major economic crime and that Peacey had "use[d] a position of trust and fiduciary responsibility to facilitate the commission of the crime."9Noting that a person may be convicted of first degree theft for taking as little as $1,500, the court pointed out that Peacey's "crime was 56 times what you were convicted of" because "[w]ithout any authority . . . to do so, you wrote 56 checks over $1,500."10The court agreed with the jury's findings, and on that basis determined "that there are exceptional circumstances allowing and demanding a sentence in excess of the standard sentencing range."11
As Peacey concedes, the record and jury findings were sufficient for the trial court to find substantial and compelling reasons to justify an exceptional sentence. The sentence imposed represents the midpoint between the least and most amount of time Peacey could have received and is not "`so long that, in light of the record, it shocks the conscience.'"12Accordingly, we find no abuse of discretion.
Affirmed.
WE CONCUR.
- [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] ↩
- State v. Powell,166 Wn.2d 73,82,206 P.3d 321(2009) ("We will not reverse the trial court's decision to admit evidence where the trial court rejected the specific ground upon which the defendant objected to the evidence and then, on appeal, the defendant argues for reversal based on an evidentiary rule not raised at trial.); State v. Koepke,47 Wn. App. 897,911,38 P.2d 295(1987) ("A party may only assign error in the appellate court on the specific ground of the evidentiary objection made at trial"). ↩
- RCW9.94A.585(4). ↩
- State v. Ritchie,126 Wn.2d 388,392,894 P.2d 1308(1995). ↩
- Id. at 393 (quoting State v. Oxborrow,106 Wn.2d 525,531,723 P.2d 1123(1986)). ↩
- RCW9A.56.030(2); RCW9A.20.021(1)(b). ↩
- RCW9.94A.510, .515. ↩
- Appellant's Br. at 17. ↩
- See Cowiche Canyon Conservancy v. Bosley,118 Wn.2d 801,809,828 P.2d 549(1992) (declining to review arguments not supported by authority); Saunders v. Lloyd's of London,113 Wn.2d 330,345,779 P.2d 249(1989) (declining to review issues unsupported by adequate argument and authority); In re Marriage of Arvey,77 Wn. App. 817,819n. 1,894 P.2d 1346(1995) (declining to review assignments of error unsupported by argument and citation to authority). ↩
- Clerk's Papers at 118. ↩
- Report of Proceedings (Sept. 10, 2008) at 13. ↩
- Id. at 14. ↩
- Ritchie,126 Wn.2d at 396(quoting State v. Ross,71 Wn. App. 556,571,861 P.2d 473(1993)). ↩