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Spokane, Washington  Est. May 19, 1883
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Woman can’t shake felony’s impact

Appeals court says sentence too lenient for robbery while some call charge too severe

Attorneys Senit Lutgen and Deanna Crull  are helping Kristin Bell.  (Colin Mulvany)
Attorneys Senit Lutgen and Deanna Crull are helping Kristin Bell. (Colin Mulvany)

Kristin Bell had what she calls a moment of weakness that has turned into a 2  1/2-year legal nightmare and forced her to give up a dream of ever working as a grade-school teacher.

Bell, 24, admits that she foolishly stole $163 worth of items in 2008 from a craft store in Cheney. But it’s what happened on her way to her car that forever changed her life and sparked a legal debate that continues today.

“It’s just been such an ordeal,” said Bell, who is about three classes short of her degree, unemployed and recently had a son. “I obviously admitted I shoplifted and paid the fines for it. I don’t believe being charged with robbery was right at all. It’s been ridiculous.”

Because Bell bumped into a store manager who was trying to keep her from escaping to her car, Spokane County Deputy Prosecutor Dale Nagy charged Bell with second-degree robbery instead of the less-serious offense of theft, arguing that when she made physical contact with the store manager it constituted the use, or threatened use, of force.

A jury agreed, but Superior Court Judge Tari Eitzen expressed concern at sentencing that the standard punishment for robbery would be too severe for the circumstances of Bell’s case. Instead, Eitzen extended leniency by ordering the woman to serve 30 hours of community service rather than three to nine months in prison as mandated by state sentencing guidelines.

Prosecutors appealed and appellate judges last month returned the case to Eitzen for resentencing.

The case, and others like it, has raised questions within Spokane’s legal community as to whether justice is being served when prosecutors turn what appears to be a shoplifting case into a felony at the same time they complain to county commissioners and taxpayers that they are understaffed and overworked.

Prosecutors insist they’re simply upholding their duty to the law and that appeals serve to clarify important elements in the state’s criminal statutes.

But the Bell case, attorneys said, highlights the power prosecutors have to exercise discretion during their charging decisions.

Spokane attorney Senit Lutgen, who along with Deanna Crull represented Bell in the appeal filed by the county, said he agreed that shoplifting can certainly turn into robbery. But he argues that robbery charge didn’t “add up” in this case.

“I may be singing sour grapes, but there needs to be some other check and balance here. We pick this bill up as taxpayers,” Lutgen said. “We paid for the trial and now the appeal. For what purpose? For some girl who took some stuff. I want (prosecutors) to spend money on the truly evil people.”

According to court testimony, the manager and a sales clerk at Ben Franklin in Cheney followed Bell out of the store on June 2, 2008, after noticing her come in with an empty canvas bag and watching her leave with an obviously full bag.

The manager testified that he continually stepped in front of Bell, preventing her from walking to her car. As he stopped her progress, Bell and the manager bumped. Bell said her hands never came out of her pockets and the manager then ripped the canvas bag off her shoulder, causing her to fall and hurt her knee.

Later the same day, officers arrested Bell, who was a student at the time at Eastern Washington University, and charged her with second-degree robbery, which is a felony that requires a person to use force or the threat of force to take “personal property.” The statute also says that the level of force used “is immaterial.”

Bell, who had no prior felony convictions, spent more than a day in jail and waited a year before the case made it to trial in June 2009. A jury convicted her as charged.

Nagy, the deputy prosecutor, asked Judge Eitzen to sentence Bell to the standard range based on the 1981 Sentencing Reform Act (SRA). The prison term for someone with no criminal record under the sentencing guidelines would be three to nine months. But Eitzen refused, instead giving Bell what’s known as an exceptional downward sentence of just 30 hours of community service with no extra jail time.

Eitzen explained during the sentencing on Aug. 3, 2009, that it didn’t appear that Bell’s crime met the goals of the sentencing guidelines, which include a “just” punishment that is proportionate to the seriousness of the offense and offender’s criminal history.

Eitzen noted that there would have been no contact if the store manager had not initiated it by stepping in Bell’s way and that the case was “so far below the range of any other robbery I’ve seen” that it essentially was a shoplifting that went awry, according to court records.

“It’s become increasingly apparent over the last perhaps decade that the SRA was a horrible mistake,” Eitzen said, according to a court transcript. “The reason it’s seen now as being a horrible mistake is that you can’t put square pegs in round holes. And, we have more people in this country, more people incarcerated than anywhere else in the world per capita.

“We incarcerate people for everything, even small crimes … and the jails and prisons become one of the biggest costs of our society.”

But the case didn’t end there.

Instead, Deputy Prosecutor Mark Lindsey – at Nagy’s request – asked his superiors to appeal Eitzen’s sentence to the Division III Court of Appeals. That decision came down late last month, reversing Eitzen’s sentencing leniency and sending it back for reconsideration.

The opinion, written by appellate Judge Teresa Kulik, noted that the testimony shows that the contact between Bell and the store manager was “minor.”

“Because the charge of robbery makes the amount of force immaterial, the degree of force is not considered by the court when determining the presumptive range of the sentence,” Kulik wrote. “Therefore, the amount of force used could be a valid consideration potentially justifying a departure from the sentencing guidelines.”

However, Eitzen didn’t mention the minor use of force in her written or oral reasons for giving the exceptional sentence.

Spokane attorney Breean Beggs said Eitzen – who declined to comment because the case remains pending – can still give Bell the same sentence; she would just have to justify it better. But he, like Lutgen, questioned why prosecutors chose to make a stand in this case.

“We’ve been hearing in the media that the prosecutor’s office doesn’t have enough resources to do its job,” said Beggs, a local advocate for more police oversight. “Yet in this instance, they changed a misdemeanor to a felony. They took it to trial and then appeals. What a taxpayer would want to know is: What is the compelling reason to spend the resources in this case?”

Lindsey, who supervises the appeals unit, said Eitzen’s sentence was discussed with Prosecutor Steve Tucker and Chief Criminal Deputy Prosecutor Jack Driscoll and “the decision was made that we needed to make sure the trial court was justified in its exceptional sentence.”

“In circumstances like that, we are charged as representatives of the people to make sure we have clarification that the Sentencing Reform Act is properly imposed,” Lindsey said.

Beggs said his reading of the robbery statute gives prosecutors a wide berth in charging options because of the phrase “force or threat of force.” Beggs noted that the state has another law that gives store owners the right to reasonably detain people they suspect of shoplifting.

“If you are simply trying to get away from someone who is trying to grab you, that force can transform a shoplifting into a robbery,” he said. “But this is where prosecutors get to use their discretion and use our resources effectively.”

James Wyer, 68, served on the jury that convicted Bell. He said the only contact he remembers was from the store manager ripping the bag off Bell’s shoulder.

“I thought it should have been theft,” Wyer said. “But some of the other people thought there was force or the threat of force. The paper the judge gave us defined everything. When I saw the paper that said ‘force used or threat of force then it’s robbery,’ that’s why I voted that way.”

Wyer later learned that Eitzen gave Bell 30 hours of community service. “I thought it was a pretty reasonable sentence,” Wyer said.

Bell, too, supported Eitzen’s sentence.

“I was really relieved just simply because someone finally saw I wasn’t trying to hurt anyone and that I’m not a bad person,” she said.

Now Bell – who has spent about $13,000 in legal fees including repaying the cost of the merchandise – is waiting to find out if she’ll have to do time. She still hopes to finish her degree in art history with a minor in sociology, but she’s taking time off to care for her newborn. Every day, she wishes she had made a different decision in the store.

“I was scared and I left,” she said. “If I had just stayed there … I still would have had a chance to be a teacher.”

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