State v. Davis, No. 58698-0-I (Wash. App. 12/10/2007), 58698-0-I.

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Unpublished Opinion

STATE OF WASHINGTON, Respondent, v. NATHANIEL JAMES DAVIS, JR., Appellant.

No. 58698-0-I.

Court of Appeals of Washington, Division One.

Filed: December 10, 2007.

Appeal from King County Superior Court. Docket No: 05-1-08735-4. Judgment or order under review. Date filed: 08/14/2006. Judge signing: Honorable Julie A Spector.

Counsel for Appellant(s), Christopher Gibson, Nielsen Broman & Koch PLLC, 1908 E Madison St, Seattle, WA 98122-2842.

Counsel for Respondent(s), Brian Martin Mcdonald, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.

PER CURIAM

A jury convicted Nathaniel Davis, Jr., of two counts of obtaining a signature by deception or duress, four counts of offering a false instrument for filing or recording, six counts of theft in the first degree, one count of forgery, and one count of identity theft in the first degree. The jury also returned a special verdict finding the victim to be particularly vulnerable, an aggravating factor that the trial court relied on in imposing an exceptional sentence. Davis appeals, contending that 1) the trial court improperly commented on the evidence by referring to specific documents in each of the to-convict instructions for the four counts of offering false instrument for filing or recording;¹ 2) the trial court failed to instruct the jury of the proper legal standard for finding that the victim was particularly vulnerable; and 3) that the legislation that allowed the jury to find an aggravating factor supporting an exceptional sentence unconstitutionally chills the exercise of the Sixth Amendment right to jury trial. We affirm.

Facts

Ethel Jackson is a retired public school teacher and a widow. In the fall of 2004, Jackson, an elderly woman in her late 70s, was living alone in her Seattle home. She had no children and no members of her family lived nearby. In addition to her home, Jackson owned a duplex in Seattle's central area. She lived off her teacher's pension, social security allotments, and rental income from the duplex. Friends testified at trial that Jackson was a trusting and gullible person. By December of 2004, Jackson needed help with meals, laundry and paying bills. She had difficulty remembering names and paying bills on time, and sometimes she reverted to a different language when she could not remember certain words in English.

In the fall of 2004, Jackson paid Davis, a man in his mid 40s, to do some yard work for her. Jackson had first met Davis when he was a youngster. Davis' father had once been the pastor of a church that Jackson attended. In 2004, Davis owned a business called "Juice Works." His product was a purple juice that he claimed could help the body heal from, among other things, cancer, diabetes and eczema. He sometimes used his mother's kitchen as his laboratory.

In October of 2004, several draft checks without Jackson's signature were issued from her account to pay for Davis' bills. Jackson went to her bank on October 15, 2004, and, as a result, a general alert was placed on her account.

From November 2004 through June 2005, Davis recorded several documents with the King County Recorder's Office.

The first instance occurred on November 2, 2004, when Davis filed two documents, a "Special Power of Attorney" and a quitclaim deed.² The quitclaim deed purportedly transferred Jackson's home and duplex to Davis "for and in consideration of love and affection." This document was allegedly signed by Jackson on October 28, 2004. The document was not notarized.

There were also irregularities in the power of attorney document. The power of attorney purported to give Davis control over "Ethel R. Jackson['s]" real property. Jackson's name appears only once, handwritten at the top of the printed page.³ At the bottom of the one-page document are underscored spaces for a date and a signature. The date was filled in as October 27, 2004, but Jackson's signature was not affixed. Instead, the document was signed by Cheryl L. Lawrence. Lawrence's notary stamp appears at the bottom of the document. However, the document contained no acknowledgment from Lawrence that either Davis or Jackson appeared before her or that she witnessed them signing documents.

Lawrence testified at trial that she was a notary public and had retired on November 1, 2004. She remembered Davis bringing into her office an elderly woman whom he introduced as his aunt. Lawrence testified that the woman signed a document as "F. R. Jackson," and Lawrence notarized the document. When Lawrence was shown a copy of the power of attorney document at trial, she testified that she recognized her signature and stamp, and stated that the date was written in her handwriting. When asked if she remembered if the older woman who came to see her with Davis came to see her on October 27, 2004, Jackson replied, "[i]t was the date unless this was cut and pasted." Lawrence could not recall much detail about the interaction. Lawrence testified that she did remember that the day Davis brought in his "aunt" was the only time that she ever saw the woman and that it was the first time Davis had ever brought someone with him to her office.

Toward the end of December 2004, with the help of Jackson's pastor and his wife, Richard and Susan Thompson, Jackson learned of the quitclaim deed and the power of attorney filed by Davis. Jackson went to her bank and signed an affidavit stating that she had not given Davis power of attorney or any authority to sell, transfer or gift her property. Jackson also signed and caused to be recorded a revocation of the power of attorney. On behalf of Jackson, an attorney filed and recorded a notice of lis pendens on both of Jackson's properties on January 13, 2005.

Davis recorded a second quitclaim deed for Jackson's properties with the recorder's office on March 24, 2005.⁴ The deed was again handwritten, granted both of Jackson's properties to Davis "for and in consideration of love and affection," and was purportedly signed by Jackson on October 28, 2004, the same date on which she allegedly signed the first quitclaim deed. This time the deed included a second page acknowledgement from notary public Darlene Pryor, the person who bought Lawrence's business when Lawrence retired. The acknowledgement stated that Davis, "POA 10/28/04 Ethel R Jackson," appeared before Pryor and that "he" signed the foregoing instrument as "His (POA)" on October 28, 2004.

In addition to recording the second quitclaim deed, Davis recorded an "addendum of fact" with a petition to remove the lis pendens from each of the properties. This addendum included a typed letter dated September 30, 2004, stating that Grace Beeler witnessed Jackson sign documents authorizing Davis to have power of attorney and explaining, in a separate paragraph, how Beeler knows Jackson.⁵ The document was purportedly signed by Beeler, Jackson, and Davis, and notarized on the second page by Pryor. The acknowledgement from Pryor stated that all three persons appeared before her and that "he" signed the foregoing instrument as "their" free and voluntary act. The petition signed by Davis was dated March 24, 2005, a day after Pryor purportedly notarized Davis' signature on March 23, 2005.

Beeler, Davis' aunt, testified at trial that Davis came to her at work and asked her to type out on a computer an explanation of how she knew Jackson, which she did. Beeler testified that Davis "had a part that he put on the statement and I had a part, my part as to being friends of Mrs. Jackson." Beeler testified that Davis "asked me to put my statement with his." Beeler testified that she did not write the first paragraph on the statement regarding the power of attorney. Beeler also testified that Davis asked her to go to Jackson and have her sign the document, which Beeler did. She also testified that no notary public was present when either she or Jackson signed the document. Beeler said that she never witnessed Davis signing the document. Beeler also said that she never witnessed Jackson sign documents authorizing Davis to have a power of attorney over her affairs.

On cross-examination, Davis admitted that he filled in the date of September 30, 2004, and added Jackson's and Beeler's name to the acknowledgement by Pryor. Davis also admitted at trial that Pryor was nowhere near him, Beeler or Jackson on September 30, 2004.

The third time Davis recorded a quitclaim deed for Jackson's properties was on June 13, 2005.⁶ This document was a copy of the first deed Davis recorded on November 2, 2004, only this time it had attached to it a second page, which contained an acknowledgment from notary public Pryor. This acknowledgment was a copy of the same acknowledgement that had been included with the deed Davis recorded on March 24, 2005, except that it now contained several handwritten changes. The notation "POA 10/28/04" was scratched out. Instead of stating that "he" signed the forgoing instrument, the acknowledgment now averred that "he, she" signed the forgoing instrument. Instead of stating that the attached document had been signed as "His (POA)" voluntary act, the "(POA)" was scratched out and the acknowledgment now stated that the document had been signed as "His/Her" voluntary act. No initials appeared next to any of the changes.

Pryor testified at trial that she officially became a notary public on November 29, 2004, when she received her notary stamp. Davis came to her twice after she had her stamp, first in late November of 2004, and again in March 2005. Pryor said that she did not recall the specific document she notarized for Davis in November, but that she did remember notarizing a quitclaim deed on March 23, 2005. Pryor denied notarizing anything for Davis on October 28, 2004, explaining that on that date she did not yet have her stamp or an office. She testified that she never notarized anything with Jackson in her presence. She testified that she never...