State Of Washington, V. Taryn M.k. Rehn ( 2022 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
THE STATE OF WASHINGTON, ) No. 83339-1-I
)
Respondent, ) DIVISION ONE
)
v. ) UNPUBLISHED OPINION
)
TARYN M.K. REHN, )
)
Appellant. )
)
HAZELRIGG, J. — Taryn M.K. Rehn appeals her convictions for four counts
of theft in the first degree after a jury trial. The jury found two aggravating factors
for each count: (1) the defendant knew or should have known the victim was
particularly vulnerable, and (2) the defendant used her position of trust to facilitate
the crime. While Rehn asserts a number of errors on appeal, her challenge to the
sufficiency of the evidence underlying her convictions is dispositive. Because
there is insufficient evidence to sustain each of Rehn’s convictions, we reverse
without reaching the other assignments of error raised in briefing or her pro se
statement of additional grounds for review.
Citations and pinpoint citations are based on the Westlaw online version of the cited material.
No. 83339-1-I/2
FACTS
Taryn Rehn was raised by her maternal grandmother, Emily Rehn.1 Emily
had two children: Vicky Price (Rehn’s mother) and Tami Mooers (Rehn’s maternal
aunt). Emily and Rehn were very close; Emily paid for Rehn to attend private
schools, contributed to her undergraduate and graduate education, helped her pay
for an apartment, and assisted with various expenses throughout Rehn’s life. In
2010, Rehn moved back to Seattle from New York City. At this point, Emily was
in her 80s and Rehn assisted her with paying bills, attending medical
appointments, yardwork, and other tasks as needed. Emily gave Rehn $15,000 to
help her purchase a condo in the area, but Rehn eventually moved in with Emily
instead.
In 2003, Emily executed several estate planning documents, including a
durable power of attorney and healthcare power of attorney. She conveyed shared
power of attorney to Tami and Rehn, giving them both equal power to transact
financial matters. There were several express powers and limitations, such as
allowing Tami or Rehn to transfer assets to facilitate Medicaid qualification, and
make gifts so long as they were below the annual exclusion amount pursuant to
the Internal Revenue Code. She also expressed a “strong preference to remain in
[her] residence so long as possible” in her healthcare power of attorney. In 2010,
Emily updated some of her estate planning documents, creating a revocable living
trust and placing her home in it.2 Emily was the initial trustee, Rehn would become
1Several witnesses share last names. For clarity, we refer to Taryn Rehn, the defendant,
as “Rehn,” and all others by their first names. No disrespect is intended.
2 The Power of Attorney documents were not updated.
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No. 83339-1-I/3
trustee if Emily became incapacitated, and Tami was the alternate if Rehn could
not serve as trustee. In addition to her home, Emily’s assets included three bank
accounts at Wells Fargo and a Morgan Stanley investment account.
In 2012, Rehn filed paperwork with the State to create a non-profit limited
liability company called Bright Elder Care (BEC). Rehn was listed as the director
and registered agent, with Emily as secretary. The reported purpose of BEC was
“[c]haritable, public service for underprivileged elderly.” At the end of 2012, around
$17,000 was moved from Emily’s Morgan Stanley bank account to a Bank of
America account in BEC’s name. In 2013, another transfer of approximately
$30,000 was made from Emily’s Morgan Stanley bank account to a Bank of
America account in BEC’s name and around $25,000 was moved from Emily’s
Wells Fargo living trust account to a Bank of America account in BEC’s name. In
2014, several checks from the United States Treasury, USAA, and for a settlement
Emily received, were deposited in accounts held in Rehn’s name. During this time,
Emily began to experience increasing memory challenges and Rehn requested a
neuro-psych evaluation. In August 2013, Emily’s doctor signed a certification
documenting Emily’s incapacity, which enabled her to seek Veteran’s
Administration (VA) benefits. Rehn applied for benefits from the VA for Emily and
established the required protective payee account for those benefits.
In 2013, a bank teller had concerns about activity on Emily’s living trust
account and spoke to Tami, who was a trustee on the account. Tami also
discovered a quit claim deed signing Emily’s home over to Rehn. Tami and her
husband David Mooers were concerned; they contacted Adult Protective Services
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No. 83339-1-I/4
(APS) and filed a petition for a guardianship over Emily. APS opened an
investigation, interviewing Emily and Rehn and examining bank statements. Rehn
claimed there was a verbal agreement between her and Emily, where Emily would
pay her $56,000 per year and Rehn would provide in-home care pursuant to
Emily’s wish to remain in her own home.
In 2014, a professional guardian was appointed in response to Tami’s
petition. Tami moved Emily to an assisted living facility, where she resided until
she died in 2018. In 2015, the Tacoma Police Department began investigating
Rehn for financial exploitation, and a detective obtained search warrants for Emily
and Rehn’s bank accounts, including the living trust account. The State brought
criminal charges against Rehn on February 21, 2018. As amended, the State
ultimately filed four charges of theft in the first degree, each with two aggravating
factors (knowledge of the victim’s vulnerability and use of a position of trust to
facilitate the offense).3 The charging document did not name the victim, nor did
the special verdict forms for the aggravators which were presented to the jury.
After a trial, the jury convicted Rehn as charged and found both aggravating factors
for each charge. The judge imposed an exceptional sentence of 36 months in
prison by ordering the nine month sentence imposed on each count run
consecutive to the others. Rehn was permitted to post $100,000 bond for her
release pending appeal. Rehn timely appealed.
3Two other charges were dismissed pursuant to a pretrial motion under State v. Knapstad,
107 Wn.2d 346, 729 P.2d 48 (1986), after which the State amended the information.
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No. 83339-1-I/5
ANALYSIS
I. Statutory Framework: Theft by Deception Distinguished from
Embezzlement
RCW 9A.56.020 contains separate definitions for the crime of theft. An
individual may commit theft if they “wrongfully obtain or exert unauthorized control
over the property or services of another,” or if they “obtain control over the property
or services of another” “[b]y color or aid of deception.” RCW 9A.56.020(1)(a), (b).
The first provision, exerting unauthorized control, “includes what was
embezzlement under prior law.” State v. Joy, 121 Wn.2d 333, 339, 851 P.2d 654(1993).
“The chief distinction” between embezzlement and theft by deception “lies
in the manner of acquiring possession of the property.” State v. Smith, 2 Wn.2d
118, 121, 98 P.2d 647 (1939).4 In an embezzlement case, the defendant “comes
lawfully into the possession” of the property and it is then “fraudulently . . .
appropriated,” while in theft by deception “there is a trespass in the unlawful taking
of the property.” Id. Trespass “is essential to constitute” theft, but is not present
in embezzlement. Id.This court analyzed the distinction between the two crimes in its
unpublished opinion in State v. McKinnon, No. 74008-3-I, slip op. at 7. While
“[u]npublished opinions of the Court of Appeals have no precedential value and
are not binding upon any court,” we may accord them “such persuasive value as
4 Smith analyzed a previous version of the statute, but “the elements of the different means
have not materially changed—RCW 9A.56.020 merely rephrases and reorganizes the previous
statute.” State v. McKinnon, No. 74008-3-I, slip op. at 7 (Wash. Ct. App. Aug. 1, 2016)
(unpublished), https://www.courts.wa.gov/opinions/pdf/740083.pdf.
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No. 83339-1-I/6
the court deems appropriate” and may utilize them when “necessary for a
reasoned decision.” GR 14.1(a) and (c). McKinnon provides a helpful synthesis
of existing case law for distinguishing embezzlement and theft by deception.
In McKinnon, the defendant “had lawful possession” of the homeowner’s
association’s funds as its hired accountant. Slip op. at 11. Because he had lawful
possession of the funds when he “misappropriated the funds to his personal use,”
the evidence supported a conviction for embezzlement, not theft by deception. Id.The court compared and contrasted McKinnon’s case from several other cases:
Comparisons in McKinnon
Case Comparison/Distinction
State v. Smith, 2 Wn.2d 118, 98 Smith managed a business and “had
P.2d 647 (1939) complete control” of the business’s funds.
The court held the State should have
charged Smith with embezzlement because
the funds were lawfully in his possession
before the misappropriation.
State v. Johnson, 56 Wn.2d 700, Johnson cashed insurance checks obtained
355 P.2d 13 (1960) after his co-defendant created false claim
files and authorized payment. Because the
co-defendant only had authority to order
payment, and relied on other employees to
execute them, he did not possess the funds
and therefore larceny by deception was
proper.
State v. Renhard, 71 Wn.2d 670, Renhard was the president of a corporation
430 P.2d 557 (1967) and had sole authority to sign checks. The
court held the State failed to prove deception
was necessary to obtain the property
because Renhard “had lawful control” of the
funds that were misappropriated. Therefore,
larceny by embezzlement was proper, rather
than larceny by deception.
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No. 83339-1-I/7
State v. Mehrabian, 175 Wn. Mehrabian worked for a city and owned a
App. 678, 308 P.3d 660 (2013) side business selling computer equipment.
He improperly sold equipment to the city
using third-party invoices, forging price
quotations, and selling equipment at
substantial markups. There, Mehrabian
obtained control over city funds through
deception by forging price quotations,
submitting them to his supervisor, who would
then purchase the equipment. The court held
theft by deception was proper.
Here, Rehn was charged with theft by color or aid of deception, not theft by
exertion of unauthorized control. As the three-year statute of limitations had
passed, Rehn could not have been convicted of theft by exertion of unauthorized
control. Another key distinction between embezzlement and theft by deception is
the statute of limitations. Under former RCW 9A.04.080, theft by deception had a
six-year statute of limitations, while embezzlement had only a three-year statute of
limitations. Former RCW 9A.04.080(1)(d)(iv), (1)(h) (LAWS OF 2017, ch. 266, § 9).
The State may have made a strategic decision to pursue charges under theft by
deception, despite the fact that embezzlement more closely fit the facts of the case,
because the statute of limitations for embezzlement had lapsed.5
With this statutory background in mind, we turn to Rehn’s sufficiency
challenge.
5 The State relied on Rehn’s act of creating BEC on January 1, 2012 and the use of that
LLC to transfer Emily’s funds beginning in December 2012 as the earliest allegedly unlawful act.
Charges were not filed until February 21, 2018.
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No. 83339-1-I/8
II. Sufficiency of Evidence
Rehn argues there was insufficient evidence to convict her of theft by
deception because the State failed to present any evidence Emily was deceived.
At oral argument, Rehn confirmed that her sufficiency challenge centers on the
element of reliance.
“Sufficient evidence exists to support a conviction if any rational trier of fact
could find the essential elements of the crime beyond a reasonable doubt.” State
v. Briejer, 172 Wn. App. 209, 217, 289 P.3d 698 (2012). We view the evidence in
the light most favorable to the State, admitting the truth of the State’s evidence and
drawing all reasonable inferences in favor of the State. Id. “Circumstantial
evidence and direct evidence are equally reliable.” Id. We defer to the jury “on
issues of conflicting testimony,” witness credibility, “and the persuasiveness of the
evidence.” Id.The court’s instructions to the jury were based on pattern instructions and
defined the thefts alleged by the State as occurring “by color or aid of deception,
to obtain control over the property of another, or the value thereof, with intent to
deprive that person of such property.” The instructions further define “by color or
aid of deception” as circumstances where “the deception operated to bring about
the obtaining of the property.” Jurors were further instructed that deception means
“an actor knowingly creates or confirms another’s false impression that the actor
knows to be false,” “fails to correct another’s impression that the actor previously
has created or confirmed,” of the actor “prevents another from acquiring
information material to the disposition of the property involved.”
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No. 83339-1-I/9
To demonstrate the victim relied on the deception, the State must show the
victim would not have parted with the property if they knew the true facts.
Mehrabian, 175 Wn. App. at 701. While the deception need not be the sole reason
the victim parted with the property, the deception must “in some measure operate[]
to induce the victim to part with the property.” Id. For example, in Mehrabian, two
city employees testified they did not know “they were approving business deals
with Mehrabian, and both said they probably would not have approved the deals
had they known the true facts.” Id. at 707. In State v. Casey, five separate victims
testified that they “relied in whole or in part upon a deceptive representation by
Casey when deciding to accept his offer,” and therefore there was sufficient
evidence of reliance. 81 Wn. App. 524, 530–31, 915 P.2d 587 (1996). In contrast,
in State v. Briejer, there was insufficient evidence to support a theft by deception
conviction because the defendant “did not conceal” information about his ankle
injury when submitting information for his claim to the Department of Labor and
Industries. 172 Wn. App. 209, 221–22, 289 P.3d 698 (2012).
Here, the State argues Rehn created a false impression she was spending
Emily’s money to meet Emily’s needs, deceptively used a “web of accounts” and
a “misleadingly titled corporation” to “exert control over the trust funds.” It also
argues the “sophisticated scheme made it difficult for the co-designated attorney
to know what had happened to Emily’s funds,” and from this “the jury could
reasonably infer that Emily was also deceived.”
While there was extensive documentary and testimonial evidence about
what money was moved from which accounts on particular dates and by whom,
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No. 83339-1-I/10
there is no testimony demonstrating that Emily was deceived by these actions.
The State’s evidence of Tami being deceived is, at best, circumstantial. First, Tami
was a co-attorney in fact to Rehn under Emily’s estate planning documents, not an
owner of the property. Second, the State sought an aggravator on each count
alleging that the victim was particularly vulnerable, which strongly suggests the
victim is Emily, who was an older adult with memory difficulties.6 And while we
give direct and circumstantial evidence the same weight, the evidence does not
support a reasonable inference that because the Mooers were deceived, Emily
was deceived as well.
A reasonable inference must be based on “logic, common sense, and
experience.” State v. Jameison, 4 Wn. App. 2d 184, 197, 421 P.3d 463 (2018). It
must “follow from an underlying truth,” more than just “speculation or conjecture.”
Id. at 198. If “evidence is equally consistent with two hypotheses, the evidence
tends to prove neither.” Id. And, particularly in a criminal case, “[w]e will not infer
a circumstance when no more than a possibility is shown,” or infer “the existence
of facts” “from mere possibilit[y].” Id.
Here, Tami testified she only saw Emily a few times a year, Emily was “very
close” to Rehn and treated her as a daughter, Emily did not discuss her financial
situation with Tami, and Tami “would be unaware of” any agreement Emily had
with Rehn. David’s testimony was similar, and he admitted he and Tami were not
6 The State’s Amended Information does not name a victim, nor do the to-convict
instructions or special verdict forms for the aggravators. However, the State confirmed at oral
argument that Emily was the victim referenced in these documents and in the presentation of its
case to the jury.
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No. 83339-1-I/11
involved in or informed of Emily’s financial affairs prior to 2014. David also
admitted Emily “did things for Taryn that she didn’t do” for Tami, such as paying
for more expensive private schools. Rehn took the stand at trial, and testified that
Emily paid for her to take dance lessons, voice lessons, piano lessons, and beauty
pageants. Emily had custom dresses made and booked photography sessions for
Rehn’s portfolio, and would take her to pageants and stay in hotels. Emily paid for
Rehn to attend private elementary school, middle school, and high school. She
contributed financially for Rehn’s undergraduate degree and graduate degree
(including a semester studying in Rome). Emily also paid $5,400 to help Rehn
obtain an apartment in Manhattan. Rehn testified Emily helped her pay bills, health
insurance, and for travel.
In light of Rehn’s testimony as to Emily’s consistent financial support over
many years, and the testimony of the State’s witnesses as to their general lack of
knowledge of Emily’s financial arrangements, the State failed to demonstrate the
essential element of the charged crimes that Emily was deceived. There was no
direct evidence, nor any reasonable inference that could be drawn, that Emily was
deceived and that deception operated even in part to induce her to part with her
property. Even if we were to disregard Rehn’s testimony as to her grandmother’s
history of generosity toward her and any financial arrangements the two may have
had, the Mooers’ testimony was that they were not involved in Emily’s financial
decision making and were generally unaware of the state of Emily’s finances.
Viewing the evidence in the light most favorable to the State, the State failed to
prove beyond a reasonable doubt that Emily parted with her money due to
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No. 83339-1-I/12
deception by Rehn. Accordingly, this rendered the State unable meet its burden
to prove all elements of the charged crimes beyond a reasonable doubt. As such,
we reverse Rehn’s conviction as to each of the four counts of theft in the first
degree by color or aid of deception.7
Reversed.
WE CONCUR:
7Because the sufficiency issue as to the element of deception is dispositive to Rehn’s case
as a whole, we need not reach the other assignments of error.
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