Farnworth garnered forty-six payments of Washington
Department of Labor and Industries (DLI) worker compensation
benefits by certifying he engaged in no employment at a time
when he labored at a car sales lot. The State aggregated the
many thefts into three counts of first degree theft.
Farnworth appeals, on numerous grounds, from two convictions
for first degree theft. He argues that the trial court abused
its discretion when denying a trial continuance, when
admitting hearsay evidence, and when excluding some of his
evidence. He also contends that the State lacked authority to
aggregate the thefts into more than one first degree theft
charge. We agree with Farnworth's aggregation argument
and vacate one of his convictions. We disagree with
Farnworth's other arguments and affirm the one conviction
for first degree theft.
prosecution arises from defendant Gary Farnworth's
receipt of worker compensation time loss benefits. On
September 10, 2007, Gary Farnworth injured his back while
working as an apprentice ironworker for Storm Steel, Inc. He
filed a claim with DLL DLI commenced paying Farnworth time
order for Gary Farnworth to garner time loss benefits, DLI
demanded that he complete and sign worker verification forms.
Each form read:
Due to my work-related injury/illness, I didn't work and
I wasn't able to work from __ to __. This means you
didn't perform any type of work-paid or unpaid-such as
volunteer work, self-employment, COPES or CHORE Services. . .
. . . .
By signing below, I certify under penalty of perjury under
the laws of the state of Washington that the foregoing is
true and correct and further that: I understand that
if I make a false statement about my activities or physical
condition, I will be required to refund my benefits and I may
face civil or criminal penalties. I understand I must
immediately notify my claim manager if I perform any work
(paid or unpaid), if my doctor releases me for work, if I am
incarcerated and under sentence, or if the custody of my
Ex. P8. Gary Farnworth completed and signed at least ten
worker verification forms between September 2010 and July
in April 2010, Gary Farnworth assisted his friend, Terry
Smith, at Smith's used car dealership, TCS Auto
Wholesale. Farnworth daily opened the car lot gates, unlocked
the office front door, accepted loan payments from customers,
and received mail. During this time, Farnworth reported to
DLI, his physicians, and his vocational counselor that he was
unemployed. Farnworth underwent back surgery on November 1,
2010, and January 9, 2012. When recuperating from surgery, he
missed work at TCS Auto from November 1 to November 6, 2010,
and from January 9 to February 13, 2012.
Farnworth received and cashed forty-six warrants for time
loss payments from DLI between November 2010 and October
2012. A payment order accompanied each warrant and identified
the pay rate and time period for the warrant's
compensation. Each payment represented two weeks' worth
of benefits in the sum of $1, 626.80 $1, 676.92, $1, 662.60,
or $1, 739.34. Each payment order admonished its recipient
not to cash the warrant if he performed any work during the
August 10, 2012, DLI received a tip that Gary Farnworth
worked while receiving time loss benefits. DLI commenced an
investigation. On September 25, 2012, DLI recorded Farnworth
showing DLI Investigator Matt McCord five vehicles for sale
on the TCS Auto Wholesale lot. Department of Licensing sales
records confirmed that Farnworth served as general manager
for TCS Auto from April 2010 through October 2, 2012.
October 9, 2012, DLI confronted Gary Farnworth with evidence
of fraud. With his attorney present, Farnworth confessed to
investigator Matt McCord that he labored at TCS Auto
Wholesale starting in April or May 2010 and that he worked
six days a week, Monday through Saturday. Farnworth further
conceded that he signed a worker verification form declaring
that he had not worked during the period of time he labored
at TCS Auto.
concluding in October 2012 that Gary Farnworth worked at TCS
Auto Wholesale, DLI continued to pay Farnworth time loss
compensation. DLI ended time loss payments on February 14,
2013, when DLI found Farnworth able to work.
February 15, 2013, Gary Farnworth assumed a full-time, paid
position as an automobile salesperson with TCS Auto
Wholesale. This position paid less than his job as an
ironworker at Storm Steel, Inc.. Due to the disparity in
income, DLI's Board of Industrial Insurance Appeals ruled
that Farnworth incurred a loss of earning power, within the
meaning of RCW 51.32.090(3), from February 15 through April
29, 2013. The board also concluded that the industrial injury
proximately caused the loss and the loss exceeded more than
five percent of his earning power at the time of his back
State of Washington charged Gary Farnworth with three counts
of first degree theft by color or aid of deception. Each
count alleged theft over different time frames: February 15,
2010 to January 4, 2011; November 6, 2010 to January 14,
2012; February 13, 2012 to October 5, 2012. To arrive at
first degree theft charges, the State aggregated a series of
payments to Farnworth from DLI. In its last information, the
second amended information, the State alleged that, for
purposes of aggregation of discrete thefts, Farnworth engaged
in a "series of transactions which were part of a
criminal episode or common scheme or plan." Clerk's
Papers (CP) at 463. During the proceeding, Farnworth argued
that he volunteered rather than worked at the auto
dealership, he never intended to deceive DLI, and DLI did not
rely on any deception.
trial, the State filed notice of its intent to offer
certified business records as allowed by RCW 10.96.030. Gary
Farnworth never responded to the notice. On August 28, 2014,
the State filed its witness list, which included "Alan
Gruse, LNI Fraud Adjudicator." CP at 31. One month after
the court-ordered deadline for filing a witness list,
Farnworth filed a witness list that included Jerry Myron, a
purported expert witness. The State attempted to interview
Myron, but he refused an interview.
that DLI, beginning in February 2013, paid time loss benefits
to Gary Farnworth but at a lower rate than when DLI lacked
knowledge of the employment at TCS Auto Wholesale.
Farnworth's income as a used car salesperson deceeded his
remuneration as an ironworker. The State moved to exclude
evidence that DLI could or would have paid time loss benefits
to Farnworth from 2010 to 2012 if Farnworth had reported his
employment. The trial court granted the motion in limine on
the rationale that whether DLI might have paid a lower sum of
time loss benefits had Farnworth been honest was irrelevant
was scheduled to begin June 1, 2015. According to Gary
Farnworth, the prosecution disclosed J.R. Wyatt, a vocational
counselor, as an expert witness for the first time on May 22,
2015, and the State did not then disclose Wyatt's
opinions. Accordingly, Farnworth argued a motion, on May 27,
2015, to continue the trial. Farnworth maintained that he
wished to hire a rebuttal expert witness. The State responded
that Wyatt was a fact, not an expert, witness and that the
State a half-year earlier provided discovery concerning
Wyatt's testimony. On May 27, the trial court denied the
motion to postpone the trial date.
Farnworth renewed his motion to postpone the June 1, 2015
trial date at the commencement of trial on June 1. Farnworth
did not then complain about any late disclosure of a State
expert witness. Farnworth mentioned the inability to subpoena
two witnesses and to interview one witness. The trial court
denied the renewed motion to postpone the trial date.
trial, the State called as a witness DLI Workers Compensation
Fraud Adjudicator Alan Gruse. Through Gruse, the State sought
to admit as exhibits payment orders prepared by DLI claims
managers. The claims managers who prepared the orders did not
testify in the case. Gary Farnworth objected to admission of
the payment orders on the grounds of hearsay, lack of
authentication, and the confrontation clause. The trial court
overruled the objection. When the State moved to admit
exhibit PI04, a payment order, the following testimony and
MS. MILNOR [Prosecutor]: State would offer Plaintiffs Exhibit
MR. SMITH [Defense Counsel]: Permission to voir dire, Your
THE COURT: You may.
MR. SMITH: Thank you.
Q (By Mr. Smith) Mr. Gruse, this is a payment order, correct?
Document you're referring to is a payment order?
A Yes, it is.
Q Right. You said that's a legal document; is it not?
A It is.
Q All right. And this is a legal document created by the
claims manager, correct?
Q All right. And at no time during the period February 15,
2010 through October 5, 2012, were you a claims manager in
this case, correct?
A I was not a claims manager in this case, no.
Q All right. And the claims manager in this particular
document at the time was Vicky Damora, correct?
A That is correct.
MR. SMITH: Thank you, Your Honor. I have an objection on
hearsay. It violates right to confrontation, as well as
relevance in any-it is irrelevant, substantially outweighed
by the prejudicial effect.
THE COURT: I'll note your objection. The Court is going
to admit P104.
Report of Proceedings (RP) (June 9, 2015) at 994-95. Vicky
Damora never testified at trial.
the jury, the State asked Alan Gruse whether DLI relied on
the worker verification forms signed by Farnworth when paying
him time loss compensation benefits. The defense
unsuccessfully objected to this question on the basis of
hearsay, the confrontation clause, and lack of a foundation.
Gruse answered in the affirmative.
trial, the State called as a witness Department of Licensing
Custodian of Records Richard Letteer. Through Letteer, the
trial court admitted as exhibits Department of Licensing
sales transaction records from February 15, 2010 to November
20, 2012 purportedly signed by Gary Farnworth as an agent for
the dealership, TCS Auto Wholesale. Farnworth objected to the
exhibits on grounds of hearsay, lack of authentication, and
the confrontation clause. Letteer admitted he never compared
all of the Department of Licensing documents introduced as
exhibits to the originals on file with the department, he did
not know the criteria used to request and select the
documents, and he did not gather the documents himself.
Letteer testified that Susan Mitchell assembled the exhibits.
Mitchell did not testify at trial. A certification
accompanying the exhibits stated that Mitchell served as
Department of Licensing forms and records analyst, she was
the custodian of records, and as part of her duties, she
researched and copied the records.
State also called as a witness DLI investigator Matt McCord.
During McCord's cross-examination, Gary Farnworth
attempted to elicit testimony about McCord's involvement
in a fraudulent Ponzi scheme. According to Farnworth, McCord
resigned from the Simi Valley, California police force in
lieu of termination because of participation in the scheme,
and McCord, when subpoenaed to testify before a grand jury on
the subject, asserted his Fifth Amendment right not to
incriminate himself. Out of the presence of the jury,
Farnworth moved for dismissal based on the State's
purported Brady violations. As part of the motion,
Farnworth requested to voir dire McCord concerning his
behavior in order to perfect the trial record. The trial
court denied the request to voir dire on the basis that
McCord's involvement in fraud lacked relevance to
Farnworth's prosecution. The trial court denied the
motion to dismiss.
trial, Gary Farnworth wished his witness, Jerry Myron, to
testify that, during some of the charging period, DLI would
have paid time loss compensation benefits even if it knew
Farnworth worked at TCS Auto Wholesale, since Farnworth's
pay before his injury exceeded his pay at the car dealership.
The trial court precluded the testimony and commented:
The statute for theft by deception does not focus on the net
result of the defendant's benefit based on the amount
that he might have legally received.
Instead, theft by deception centers on the deceptive act and
the value of the property obtained by that deceptive act, and
it's not a defense under the Casey [decision]
that he could have gotten benefits [no matter] what happened.
So based on that, the Court is not going to allow him to
testify to what he would have gotten.
RP (June 8, 2015) at 935.
the State rested, Gary Farnworth moved to dismiss two counts
of first degree theft by arguing the State improperly
aggregated the small thefts. The State responded that it
charged three different counts because of Farnworth's two
surgeries respectively on November 1, 2010 and January 9,
2012. Farnworth missed work at TCS Auto Wholesale from
November 1 to November 6, 2010 and from January 9 to February
13, 2012. The State maintained that Gary Farnworth was
entitled to full time loss payments during those absences.
The respective charging periods covered before November 1,
2010, between November 6, 2010 and January 9, 2012, and after
February 13, 2012. The trial court denied the motion to
dismiss two of the three counts.
trial court instructed the jury. Jury instruction 10 read:
Value means the market value of the property or services at
the time and in the approximate area of the act.
Whenever any series of transactions that constitutes
theft is part of a common scheme or plan, then the sum
of the value of all transactions shall be the value
considered in determining the amount of value.
CP at 499 (emphasis added). Instructions 15, 16, and 17
constituted the respective to- convict instructions for each
count of theft in the first degree. Jury instruction 15 read:
To convict the defendant of the crime of Theft in the First
Degree as charged in Count I, each of the following five
elements of the crime must be proved beyond a reasonable
(1) That during the period from February 15, 2010, through
January 4, 2011, the defendant, by color or aid of deception,
obtained control over property or services of the State of
Washington or the value thereof;
(2) That the State of Washington, Department of Labor and
Industries, relied on the defendant's deception in paying
(3) That the property or services exceeded $5, 000 in value;
(4) That the defendant intended to deprive the State of
Washington of the property or services; and
(5) That any of these acts occurred in the State of
If you find from the evidence that each of these elements has
been proved beyond a reasonable doubt, then it will be your
duty to return a verdict of guilty.
On the other hand, if, after weighing all of the evidence,
you have a reasonable doubt as to anyone of these elements,
then it will be your ...