State v. Cuthbert

¶1 Ronald James Cuthbert appeals 16 first degree theft convictions and 1 second degree theft conviction,1 arguing that the trial court abused its discretion in refusing to (1) authorize public funds for a forensic accountant, violating his right to due process and effective counsel; (2) admit defense testimony about the care his disabled son needs; (3) admit a superior court order entitling him to deposit a check from the Confederated Tribes of the Grand Ronde (Grand Ronde); and (4) instruct the jury on his good faith claim of title defense. He also claims that the evidence was not sufficient to support three of his first degree theft convictions and that cumulative error deprived him of a fair trial. We reverse count 2 (first degree theft) for failure to admit defense evidence relevant to one Grand Ronde check and remand for further proceedings. We affirm Cuthbert’s2 convictions on the remaining counts.

FACTS

I. Background

¶2 Ryan has lived with severe physical and mental disabilities since birth. Because he cannot care for himself, *322Ronald and Deborah3 have provided him full time care at their Vancouver, Washington home.

¶3 In 1983, after the Cuthberts settled a medical malpractice lawsuit relating to Ryan’s injuries, the superior court appointed Ronald as guardian of Ryan’s person and estate. In addition to monthly malpractice settlement checks, Ryan received disbursements as an enrolled member of the of the Grand Ronde tribe. The order amending order appointing guardian stated the following:

[A]ny cash money which may be received by the minor shall be placed in an interest bearing account at a bank or savings and loan of the Guardian’s choice. The Guardian may make such disbursements from said monies as may be required to provide for the medical and physical needs of the minor.

Ex. 3, at 1. The guardianship order also obligated Ronald to file an accounting with the superior court every three years. When Ryan turned 18, the superior court continued Ryan’s guardianship, due to his permanent incapacity, under the terms of the established guardianship.

II. Guardianship Accounting

¶4 Until 1994, when Ryan turned 21, Ronald carefully adhered to the guardianship accounting requirement. But after that time, Ronald felt that the guardianship should pay for what he believed was the true cost of Ryan’s full time care. RP at 647-48. Ronald began taking larger reimbursements from the guardianship funds in amounts he considered equal to Ryan’s share of the family’s monthly food and housing costs.4 In addition, Ronald began paying himself $2,500 each month as compensation for providing Ryan’s care.

¶5 Ronald deposited some of Ryan’s monthly malpractice settlement checks directly into his and his wife’s personal *323bank account. At other times, he transferred funds from the guardianship account to their personal account. Although Ronald continued to file the three year guardianship accountings with the superior court, he did not disclose the full amount of money that he allocated to himself or his community.

¶6 During his time as Ryan’s guardian, Ronald started an antique business, purchased a Laundromat, and bought rental houses in the towns of Tillamook and Camas. Based on his supposition that Ryan would use one-half of the space, Ronald also built a second story on his home, using $30,000 of guardianship funds to pay for one-half of the addition so they would have “sufficient room to live comfortably.” Report of Proceedings (RP) at 651-52. He did not report this use of the guardianship funds to the superior court; nor did he obtain its consent for the expenditure.

¶7 In 1999, Ronald retired from his job as a sales tax auditor for the Washington Department of Revenue. Then, beginning in 2001, when the next accounting was due, Ronald elected not to file the required three year guardianship accountings.

¶8 In 2002, Clark County’s guardianship monitoring program discovered that the required 2001 accounting for Ryan’s guardianship had not been filed. The monitoring program’s manager sent Ronald notice that he had missed the filing deadline. The superior court issued a show cause order compelling Ronald to file the accounting or appear in court. The court also appointed a guardian ad litem to investigate Ryan’s welfare and the guardianship estate’s status.

¶9 In June 2004, based on the guardian ad litem’s investigation and report, the superior court removed Ronald as guardian of Ryan’s estate. The court ordered the guardianship firm of Beagle Burke & Associates (BBA) to investigate and to do an accounting of the estate. The Vancouver Police Department also began an investigation of Ronald’s use of guardianship funds. On December 30, 2004, after the superior court removed Ronald as Ryan’s *324guardian in June, Ronald deposited Ryan’s Grand Ronde check for $5,770 in his personal checking account.

¶10 The State charged Ronald with 16 counts of first degree theft (counts 1-12, 14-17) and 1 count of second degree theft (count 13). The State filed a bill of particulars clarifying that the charges were divided into three general categories. The first was limited to count 1, wherein the State alleged that, between February 1, 1994, and June 4, 2004, Ronald used a common scheme or plan to deprive Ryan’s estate of funds in excess of $200,000. Under the second category — counts 2, 8, and 13 — the State alleged that Ronald deposited Ryan’s Grand Ronde checks into Ronald’s personal account. In the final category — counts 3-7, 9-12, and 14-17 — the State alleged that Ronald deposited Ryan’s medical malpractice settlement checks into Ronald’s personal account. The State also alleged at least one of the following aggravating circumstances for each count: (1) the victim was “particularly vulnerable or incapable of resistance”; (2) Ronald used his “position of trust, confidence, or fiduciary responsibility to facilitate” the crime; and (3) the crime involved a “major economic offense.” Clerk’s Papers (CP) at 220-28.

III. Trial

¶11 Before trial, Ronald’s assigned counsel asked the trial court to authorize public funds for a forensic accountant to review financial records and to assist in preparing his defense.5 The trial court ruled that an accountant was unnecessary but offered to appoint an investigator, which counsel refused.

¶12 At trial, Jeff Nichols, formerly of the Vancouver Police Department, testified that he had interviewed Ronald after receiving a complaint that Ronald was misusing guardianship funds. According to Nichols, Ronald did not feel that he needed the trial court’s permission to determine how he spent Ryan’s guardianship money be*325cause it involved his family’s affairs. Ronald said that, although he previously submitted requests to the superior court to spend money on his son, he “just had stopped doing that” and decided himself what expenditures were appropriate. RP at 492. Gary Beagle, principal of BBA, also testified that his firm conducted a forensic accounting of Ryan’s guardianship account and Ronald’s personal and business accounts, based on all the available financial records.

¶13 The trial court granted the State’s motion in limine to exclude testimony by Niki Tucker, a social worker who had prepared a report detailing the care that Ryan required in 2006 and estimating its cost. The trial court also refused to admit a superior court order that the defense argued authorized Ronald to deposit one of Ryan’s Grand Ronde checks into Ronald’s personal account.

¶14 Ronald testified that he purchased his businesses and rental houses without using guardianship funds because he used money he had earned by providing services to Ryan or the guardianship. He admitted that he did not seek the trial court’s permission to charge Ryan for room and board, “I did not want the court involved in my household. I know what it’s like when the petty bureaucrats start to micro-manage a family. It just doesn’t work well.” RP at 650. But he said that he only spent guardianship funds “[t]o reimburse [himself and his wife] for the actual cost of raising [Ryan] plus the costs that are for the work of actually taking care of him.” RP at 650-51. Ronald concluded, “When it all works out in the wash, we took a very reasonable amount.” RP at 654.

¶15 Defense counsel unsuccessfully proposed a “good faith claim of title” jury instruction in order to argue a statutory defense to theft. RP at 773. The jury convicted Ronald as charged and returned verdicts finding all of the aggravating factors.

¶16 Ronald appeals.

*326ANALYSIS

I. Appointment of Expert Forensic Accountant at Public Expense

¶17 Ronald first argues that the trial court abused its discretion by refusing, under CrR 3.1(f),6 to authorize public funds for a forensic accountant, thus denying him due process and effective assistance of counsel. The State contends that, under the facts of this case, such an expert was unnecessary and that the trial court properly offered to authorize money for a defense investigator. We agree with the State.

A. Standard of Review

¶18 ‘Whether expert services are necessary for an indigent defendant’s adequate defense is within the discretion of the trial court and its decision will not be overturned absent an abuse of discretion.” State v. French, 157 Wn.2d 593, 607, 141 P.3d 54 (2006). A trial court abuses its discretion when its ruling is manifestly unreasonable or based on untenable grounds. State v. Mee Hui Kim, 134 Wn. App. 27, 41-42, 139 P.3d 354 (2006).

B. Pretrial Hearings

¶19 Ronald’s counsel asked for the appointment of a forensic accountant to assist in reviewing the discovery and in preparing Ronald’s defense. He told the trial court, “There’s still - well, discovery is still 4,000 pages. I’m still wading through it and through other things. The forensic accountant may help, but I still have a need to do that.” RP at 22. Noting that such a professional would cost roughly *327$15,000, he argued, “It may lead me nowhere, but it may not.” RP at 45.

*326(1) A lawyer for a defendant who is financially unable to obtain investigative, expert, or other services necessary to an adequate defense in the case may request them by a motion to the court.

(2) Upon finding the services are necessary and that the defendant is financially unable to obtain them, the court. . . shall authorize the services.

*327[DEFENSE COUNSEL]: . . . [M]y defense is, which is something to the effect that - or is to the effect that it’s a substance over form argument that if the defendant took the money in violation or not in conformity with the guardianship act, it went to the child’s benefit anyway.

And, as you may recall, I filed a memorandum on equitable defenses and - and their use in court -

THE COURT: I do.

[DEFENSE COUNSEL]: ~ and you said, Well, maybe not, and probably not, but, you know, I at least got to take a shot — I can take a shot at it.

So that’s where the use of these experts comets] in, to assist in that formulation.

THE COURT: Okay, well, I guess ~ of course, I don’t see the discovery, so I may ask questions that are obvious to both counsel, but is the discovery that we’re talking about that [BBA] or whoever went back and looked at bank records and said that this amount of money went in, and these checks went out?

[DEFENSE COUNSEL]: Through several different accounting departments, bank accounts.

THE COURT: I guess I’m not clear why — what is it about that that’s so complicated that I would need to appoint an expert to - I mean, either — either the money went out by a particular check or method or it didn’t.

RP at 46-47.

¶20 The State explained that the BBA firm discovered irregularities when investigating the guardianship accounting and took over the guardianship’s financial management. The firm did not use accountants; instead, it reconstructed the guardianship financial records using Quicken, a common software program for personal and small business bookkeeping. While the State objected to any duplication of BBA’s work, the State nevertheless *328admitted that “tracing money though a number of accounts I’ve found myself to be pretty confusing.” RP at 49.

¶21 When the trial court asked Ronald’s counsel whether an investigator would suffice, counsel stated, “You need somebody who is used to working with these records. And that’s somebody who works with them regularly, a forensic accountant, what do you want to -- the term you want to use, a forensic investigator/accountant.” RP at 53.

¶22 The trial court then had the following discussion with counsel:

THE COURT: Well, I guess that’s - I’m still not understanding why that — let’s say — let’s say that, for example, on Count Four, it says here that on April 15th, 2004, [Ronald]’s charged with taking more than $1500 from Ryan Cuthbert on a specific day.

I assume that ~ I’m just assuming, because I haven’t seen all this, that they’re saying, well, we put all this data in the Quicken program and it shows that on April 15th somebody made a withdrawal from x bank account that was more than $1500 and it went here.

What — why is it difficult to figure out whether or not that entry is right or not? That’s ~ I guess that’s what I’m - if — if it’s we put in here some bank deposits and some bank withdrawals, checks and those sorts of things, and all that data is available to you, I assume they’d probably say something like, Well, check No. 3326 for $1600 went out on April 15th, 2004.

So you look at check No. 3326 to see whether it’s for $1600. So I don’t ~

[DEFENSE COUNSEL]: And where it went can be important to the defendant’s case if it just went to — to Ryan’s benefit.

THE COURT: Well, if it says cash, let’s say you get all the forensic accountants in here you want, if they see that check and it’s there, $1600 in cash, how are they going to tell you where it went?

[DEFENSE COUNSEL]: Well, if you had a contemporaneous account deposit in the household business account that they use for the, you know, health and welfare of Ryan, then they — of $1600, then, yeah, that would be a linkup.

*329THE COURT: Well, I understand your argument. I’m not -- I’m not convinced that the services of a forensic accountant are necessary to assist the Defense based on the evidence that I’ve — or the information that I’ve received so far.

So I’m -

[DEFENSE COUNSEL]: Well, the - also -

THE COURT: - denying your request -

[DEFENSE COUNSEL]: - it keeps leaving the ~ I think I should bring all the paperwork in for you to look at the 4,000 pages and say, well, what am I supposed to do with this, Your Honor? How am I supposed to figure out how — what -- what goes in and what goes out? That may have to be the next motion.

THE COURT: I appreciate your difficulty, counsel, but the problem is that anyone who wants an expert at public expense is supposed to make a preliminary showing that it’s necessary, and it’s not good enough to come in and say it might lead to something good. That’s what it requires, a finding by the Court that the services you’re requesting are necessary.

[DEFENSE COUNSEL]: Well, I’ve ~

THE COURT: And I can’t find it based on what you’re telling me, that you want to have it because it might lead to something good.

RP at 55-57. Following this exchange, the trial court authorized an initial $1,000 for an investigator to help defense counsel. But counsel said that no investigators would agree to check all the records against BBA’s Quicken entries and apparently declined the trial court’s offer.

C. Forensic Accountant Not Necessary to an Adequate Defense

¶23 The Fourteenth Amendment7 requires that the State provide indigent defendants “with the basic tools of an adequate defense . . . when those tools are available for a price to other prisoners.” Britt v. North Carolina, 404 U.S. 226, 227, 92 S. Ct. 431, 30 L. Ed. 2d 400 (1971). Such tools *330include a “constitutional right to the assistance of an expert as provided for in CrR 3.1.”8 State v. Heffner, 126 Wn. App. 803, 809, 110 P.3d 219 (2005); see also Caldwell v. Mississippi, 472 U.S. 320, 323 n.1, 105 S. Ct. 2633, 86 L. Ed. 2d 231 (1985) (plurality opinion); Ake v. Oklahoma, 470 U.S. 68, 76, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985).

¶24 CrR 3.1(f) governs the appointment of experts at public expense. State v. Young, 125 Wn.2d 688, 691, 888 P.2d 142 (1995). “CrR 3.1(f) incorporates the constitutional right of an indigent defendant to the assistance of expert witnesses.” State v. Poulsen, 45 Wn. App. 706, 709, 726 P.2d 1036 (1986) (footnote omitted). In Ake, the United States Supreme Court recognized the possibility that a defendant’s particular request for expert assistance might be necessary to preserve fundamental fairness.9 470 U.S. at 77. The Court held that the Fourteenth Amendment requires the State to provide access to a psychiatrist when the *331accused has “made a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at trial.” Ake, 470 U.S. at 74, 76-77.

¶25 In Caldwell, the United States Supreme Court briefly considered the defendant’s unsuccessful request for the aid of a criminal investigator, fingerprint expert, and ballistics expert. 472 U.S. at 323 n.l. Citing Ake, the Court summarily rejected Caldwell’s due process argument because he failed to develop his bare claim that the publicly funded experts would have been beneficial to his defense. Accordingly, the Court implied that refusal to provide nonpsychiatric expert assistance could deny the defendant a fair trial. Caldwell, 472 U.S. at 323 n.l. And in Poulsen — a Washington case where a defendant was denied publicly funded access to a psychologist to establish a diminished capacity defense — our court “interpreted] Ake and CrR 3.1(f) to require the safeguarding of the rights of indigent defendants whose ‘mental condition’ is likely to be a significant factor at trial.” 45 Wn. App. at 710.

¶26 The parties have not cited, nor can we find, any Washington case addressing the necessity of appointing a forensic accountant to aid in defending a theft charge.10 But Washington Practice recognizes this possibility, “particularly in complicated or lengthy criminal proceedings.” 12 Royce A. Ferguson, Jr., Washington Practice: Criminal Practice and Procedure § 2005, at 439 (3d ed. 2004).

¶27 Federal and other state courts have considered whether their statutes required the appointment of expert *332accountants to aid criminal defendants. See, e.g., United States v. Kennedy, 64 F.3d 1465, 1473 (10th Cir. 1995); People v. Lueth, 253 Mich. App. 670, 688-89, 660 N.W.2d 322 (2002). Washington’s CrR 3.1(f) neatly tracks the requirement in the federal Criminal Justice Act of 1964, 18 U.S.C. § 3006A, that the government provide “investigative, expert, and other services ... if necessary for adequate representation.” 18 U.S.C. § 3006A(e)(2)(A). And, in Michigan, the statutory standard for appointing experts requires that “the defendant... show that he ‘cannot safely proceed to a trial’ without the proposed witness.” Lueth, 253 Mich. App. at 688 (quoting Mich. Comp. Laws § 775.15).

¶28 In Kennedy, the federal government charged the defendant with 109 criminal counts, alleging an elaborate Ponzi scheme to defraud investors in precious metals and coins. 64 F.3d at 1468. Although the trial court authorized funds for an investigator and three experts on Kennedy’s company’s inner workings, the metal industry, and Ponzi schemes, the trial court denied the defendant’s request to, among other things, hire the former accounting firm Arthur Andersen to comprehensively audit the company’s financial records — consisting of several hundred boxes of documents — and to review the work of the government’s expert witnesses. A jury ultimately convicted Kennedy of one count of racketeering, seven counts of money laundering, and nine counts of mail fraud. Kennedy, 64 F.3d at 1469.

¶29 On appeal, the Tenth Circuit held that the trial court did not abuse its discretion by denying Kennedy’s request for accounting services, under 18 U.S.C. § 3006A, because he did not sufficiently demonstrate why he needed them to adequately prepare his mismanagement defense or challenge the government expert’s testimony. Kennedy, 64 F.3d at 1470, 1472-73. First, the court noted that Kennedy suggested only that an audit would demonstrate he was not a criminal, without explaining what information he sought. In fact, the information he sought was already available in the company’s bankruptcy filings. Kennedy, 64 F.3d at 1472. Second, the Tenth Circuit pointed out that the govern*333ment’s expert witness was not a certified accountant and that the defense already had three witnesses with relevant expertise. Kennedy, 64 F.3d at 1472-73.

¶30 In Lueth, the People charged the defendant with larceny by false pretenses of over $100.00, embezzlement by an agent of over $100.00, and horse racing violations. 253 Mich. App. at 674. These charges stemmed from (1) permitting customers of his employer’s racetrack to bet on horse racing on credit, (2) falsifying records to show that customers wagered cash, (3) taking cash intended for deposit at his employer’s bank and depositing it in his personal bank account, and (4) writing checks back to the racetrack from his personal account. Lueth, 253 Mich. App. at 674, 682, 684. At trial, the People introduced evidence that an accountant’s audit showed $545,735.78 missing from corporate accounts. Lueth, 253 Mich. App. at 682. The trial court ostensibly denied Lueth’s request for an expert accountant to help him review the racetrack’s financial records. See Lueth, 253 Mich. App. at 688-89.

¶31 On appeal, Lueth argued that the trial court erred in this decision. Lueth, 253 Mich. App. at 688. But the Michigan Court of Appeals disagreed, concluding that he failed to demonstrate how an expert could have explained the company’s audit findings or procedures. Lueth, 253 Mich. App. at 689. The court also noted that Lueth delayed his appointment request until a full two months after he had notice of the restitution hearing following conviction. Lueth, 253 Mich. App. at 689. The court held that he could not show that he could not have safely proceeded to trial and it affirmed the trial court’s decision. Lueth, 253 Mich. App. at 689.

¶32 Furthermore, Division Three’s decision in Heffner is instructive. There, the State charged Heffner with first degree theft while working as a casino dealer, alleging that he purposefully dealt winning cards to generate larger tips for himself. Heffner, 126 Wn. App. at 805-06. Before trial, the State prepared spreadsheets and had a statistical expert demonstrate the mathematical improbability that *334Heffner could have randomly dealt those cards. Heffner, 126 Wn. App. at 807. Without naming an expert or offering an estimate of the costs, Heffner moved for appointment of a publicly funded expert. The trial court denied the defense’s motion and allowed the State to add its statistics expert to the list of witnesses. Heffner, 126 Wn. App. at 807.

¶33 On appeal, Heffner argued, among other things, that the trial court abused its discretion in denying him an expert. See Heffner, 126 Wn. App. at 806. But Division Three affirmed, pointing out that he failed to specify a type of expert, much less why he needed one, and explaining that “[t]he mere fact that the evidence involved arithmetic does not require that an expert present or rebut the calculations.” Heffner, 126 Wn. App. at 809-10.

¶34 Here, Ronald specifically requested a forensic accountant but we, nevertheless, agree with Division Three that Washington courts will not deem experts to be necessary simply because defense counsel must rebut a prosecution case built on numbers or mathematical evidence. See Heffner, 126 Wn. App. at 809-10. Thus, based on CrR 3.1(f) and guidance from the reported cases, we conclude that the trial court is required to appoint a forensic accountant when necessary to address what is “likely to be a significant factor at trial” — that is, when the accused needs assistance on an issue relating to guilt.11 Ake, 470 U.S. at 74.

¶35 Beagle was not an accountant but Ronald, who was free on bond, had a degree in accounting from a business college, had worked as a tax auditor for the State, *335and could have assisted in his own defense by applying his own knowledge about how the money from the guardianship estate was spent. He could have used the BBA report, which identified cash and other money movements from, between, and among accounts that Ronald established, as a summary, pointing to the State’s basis for the various charges.12 Ronald should have — and very well may have— helped his attorney probe the State’s evidence from BBA for weakness or determine the end point of any questionable withdrawals or deposits to show that Ryan actually received their benefit. The trial court offered to authorize funds for the defense to hire someone to check all the records against Beagle’s Quicken entries but Ronald’s counsel declined that offer.

¶36 Like Lueth, Ronald falsified records and used Ryan’s money in diverting funds into his personal accounts. While Ronald requested an accountant at a different trial stage than Lueth — during trial preparation instead of for postconviction restitution hearings — both sought help in reviewing dense financial records. The Michigan appellate court faulted Lueth for making a delayed request, but it nevertheless held that he failed to demonstrate a sufficient need for an expert accountant at the public’s expense. Lueth, 253 Mich. App. at 689. And, like Kennedy, Ronald already had the information from his own receipt of the funds and BBA’s summary about the money at issue. See Kennedy, 64 F.3d at 1472. Ronald’s claim similarly fails.

¶37 From our own review of the record, Ronald’s counsel performed adequately by challenging Beagle’s explanation of evidence and arguing that BBA’s fees created a bias in favor of the State. Counsel also elicited that Beagle was not an accountant or forensic scientist and that Ronald did not direct any guardianship funds to Swiss bank accounts or French chateaus.

*336¶38 Ronald was in the best position to counter the argument that the identified transactions were for his personal benefit rather than for Ryan’s. As a court-appointed guardian, he knew or should have known where all of Ryan’s money was spent or deposited. Furthermore, BBA’s creation of account ledgers identified and focused on questionable expenditures or withdrawals, thus pinpointing what Ronald needed to offer by way of testimony or financial records to show how the questioned money was spent. Thus, we hold that the trial court did not abuse its discretion by refusing to provide funds for Ronald to hire a forensic accountant.

II. Evidentiary Issues

¶39 Ronald also claims that the trial court abused its discretion by refusing to admit certain evidence. Specifically, he argues that the trial court should have admitted Tucker’s testimony regarding the care that Ryan needed and the cost of that care. He also contends that the trial court should have admitted a guardianship order allowing Ronald to keep funds from a deposited Grand Ronde check (forming the basis of count 2) to offset guardianship funds owed him from BBA. We hold that excluding Tucker’s testimony was not an abuse of discretion but that excluding the guardianship order authorizing Ronald to keep the funds from the specific Grand Ronde check constituted an abuse of discretion and was not harmless error.

A. Standard of Review

¶40 “A defendant in a criminal case has a constitutional right to present a defense consisting of relevant evidence that is not otherwise inadmissible.” State v. Rehak, 67 Wn. App. 157, 162, 834 P.2d 651 (1992). Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence . . . more probable or less probable than it would be without the evidence.” ER 401. “The threshold to admit relevant evidence is very low. Even minimally relevant evidence is admissible.” State v. *337Darden, 145 Wn.2d 612, 621, 41 P.3d 1189 (2002). The trial court has broad discretion to admit or exclude trial evidence and we will not reverse such action absent an abuse of discretion. Mee Hui Kim, 134 Wn. App. at 41.

B. Challenged Evidentiary Rulings

1. Tucker’s Testimony

¶41 Before trial, the trial court approved funds for the defense to hire Tucker to prepare a report regarding the extensive care that Ryan needed and how much these services would cost in the private sector. In responding to the State’s motion in limine to preclude Tucker’s testimony based on her report, the trial court made the following ruling:

... All right, with regard to the last motion in limine I was dealing with, I read Ms. Tucker’s report. I’d note that prior testimony indicates that [Ronald] was removed as guardian in the middle of2004. Ms. [Tucker]’s report relates to her study in September 2006 related to various costs of care options for Ryan Cuthbert.

In reviewing that report, it does not appear to contain any relevant testimony to these proceedings, so I’ll grant the motion.

RP at 361. The trial court agreed to allow an offer of proof from Tucker. Later, after Ronald testified, the trial court again asked his defense counsel if he wished to present an offer of proof about Tucker’s testimony. Counsel decided to rest on the substance of her report and the trial court did not change its prior ruling excluding the evidence as irrelevant.

¶42 Here, the State charged Ronald with multiple counts of first and second degree theft occurring before 2005. The facts “of consequence” are the elements of theft, namely, that Ronald “wrongfully obtain [ed] or exert [ed] unauthorized control over the property ... of [Ryan] or the value thereof, with intent to deprive him of such property” *338before 2005. Former RCW 9A.56.020(1)(a) (1975). At trial, Ronald essentially argued that he did not have the requisite intent to deprive Ryan of his funds. We give the word “deprive” its common meaning: “to take away” or “to take something away from.” Webster’s Third New International Dictionary 606 (2002); see State v. Miller, 92 Wn. App. 693, 705-06, 964 P.2d 1196 (1998).

¶43 Tucker’s testimony that Ryan required round-the-clock care in 2006 had no bearing on whether Ronald exerted unauthorized control over guardianship funds or whether he intended to wrongfully take money from Ryan’s estate between 1994 and 2004. Therefore, we hold that the trial court did not abuse its discretion by refusing to admit Tucker’s testimony.

2. Court Order Authorizing Monetary Offset to Ronald

¶44 During trial, Ronald’s counsel had the opportunity to review Ryan’s civil guardianship file and found a superior court order entered February 4, 2005, containing the following language:

[BBA] will pay [Ronald] $1500 per month for Ryan’s care and living expenses commencing June 10, 2004 less the $5770.00 check received by [Ronald] from the Grand Ronde, together with additional reasonable expenses incurred by him on Ryan’s behalf if receipts are provided to BBA, and any medical expenses paid for by [Ronald].

Ex. 48, at 3-4.

¶45 Upon finding this order, Ronald’s counsel moved for dismissal of count 2 “because the order implicitly if not expressly authorized [Ronald] to have the Grand Ronde money as an offset.” RP at 664. But the trial court disagreed:

Well, the order appears to have no relevance, and I would deny the request to dismiss based on the order.

It’s true that if the court had made an express or implicit finding that [Ronald] was entitled to take the money out in December 2004 from the Grand Ronde tribe, then there may be questions of judicial estoppel.

*339However, the order does not indicate either of those things. The fact that he’s being - it’s an offset against living expenses in fact appears to imply that he had no authority to take the money and that he has to repay it back by forgoing certain benefits to which he would otherwise be entitled.

And ... a person’s civil liability is not the same thing as his criminal liability, and so whether or not he was civilly liable to take an offset or not is not relevant to the question of whether he’s criminally liable for having taken the money in the first place.

So your motion to dismiss is denied, and to the extent that the order is being offered, it seems to have no relevance in this proceeding.

RP at 664-65.

¶46 Unlike Tucker’s testimony, the superior court order was indeed relevant to Ronald’s defense, specifically count 2. According to the State’s bill of particulars, count 2 consisted of the following:

The State alleges that in May, 2004 [Ronald], acting as Guardian for Ryan Cuthbert, applied for a distribution of benefit funds from the Grand Ronde tribe. The State further alleges that on or about December 30, 2004, after having been removed as Guardian for Ryan Cuthbert, [Ronald] obtained the distribution check, which was payable to Ryan J. Cuthbert in the amount of $5,770.00, and deposited into his personal account # 9299 at U.S. Bank, and thereafter converted the funds to his own use.

CP at 62-63. The disputed guardianship order directed BBA to pay Ronald certain guardianship funds, less Ryan’s $5,770 Grand Ronde check, to offset BBA’s tardy payments for Ryan’s expenses that Ronald had already paid.

¶47 Ronald’s defense was twofold. First, he maintained that he did not exercise unauthorized control of guardianship funds. Second, he argued that he did not convert the funds to his own use; rather, he used all the money for Ryan’s needs.

¶48 Ronald’s testimony reflected his understanding that the superior court had repeatedly authorized him to use the *340check as an offset before he deposited it on December 30, 2004:

[RONALD:] ... Then I eventually deposited [the 2004 Grand Ronde check] in my account.

[DEFENSE COUNSEL:] Okay. And why did you do that?

[RONALD:] Because in the middle of October, around the 10th — well, somewhere around the 14th to 18th of October, we were in Judge Poyfair’s courtroom and Judge Poyfair gave a verbal instruction from the bench that Gary Beagle was to furnish [Ronald’s civil counsel] with a copy of a personal services contract so they could begin paying Ryan’s support.

Ryan - or [Ronald’s civil counsel] never received that.

Then on December 17th we were in front of Judge Wulle, and Judge Wulle again said, I don’t care what you think happened to the money in the past, that money is to take care of Ryan’s immediate needs and you will do that.

[DEFENSE COUNSEL:] Well ~

[RONALD:] So there were two court orders, and I had already paid $1600 for an attorney to represent me in those two, and nothing had happened.

[DEFENSE COUNSEL:] Well, these orders you’re talking about, were they orders to - for you to be paid for being caregiver?

[RONALD:] Yes.

[DEFENSE COUNSEL:] Okay. And ~ and you hadn’t b