By Al Camp
The Chronicle

     OKANOGAN - An Omak man convicted more than two years ago of stealing $19,089 from an elderly neighbor lost the appeal of his conviction.
     Brian Douglas Ellis, who's been out of jail after posting a $20,000 appeals bond Jan. 2, 2008, has not been scheduled for sentencing. The mandate on the appeal was issued and a review may be held next week, Okanogan County Prosecutor Karl Sloan said.
     Ellis, 34, was found guilty in a jury trial Nov. 9, 2007, of three counts of first-degree theft for taking the money from retired sawmill worker Glen Schachtschneider, now 77, between February 2006 and February 2007.
     Ellis has been making payments of $100 each month for the last two years. He made his last payment Jan. 29. Interest on what he owes has gone up faster than his payments, leaving a balance of $22,630.73.
     Superior Court Judge Jack Burchard, citing the aggravating factor of abuse by Ellis of a trust with his neighbor, sentenced Ellis to an exceptional sentence of 14 months.
     The sentence was five months more than the high end of a sentencing range of three to nine months.
     Ellis appealed Burchard's ruling allowing two prior theft convictions to be heard in the trial and the exceptional sentence.
     The Court of Appeals, Division III, received the appeal Dec. 19, 2007, and returned an unpublished opinion Jan. 20, signed by Judge Kevin M. Korsmo.
     On both points, the appeals court affirmed the court's actions.
     Schachtschneider gave Ellis access to his checking account while the elderly man was hospitalized in 2006 for shoulder surgery. He testified that once he came home he did not receive a bank statement for six months.
     The thefts came to light in early 2007 when a social worker found Schachtschneider's bank account was overdrawn.
     The appeals court said Burchard did not abuse his discretion by admitting the convictions to impeach Ellis once he opened the door by discussing the facts of the underlying convictions.
     The prosecutor then presented additional evidence concerning the convictions for second-degree theft in 1995 from a former employer and third-degree theft in 1994 from a youth baseball team.
     Ellis, when asked by his defense counsel about the convictions, told jurors that he pleaded guilty to second-degree theft for taking $350 but was not guilty of that crime. He said he pleaded guilty at the insistence of his public defender because he would not have to do any jail time, the appeals court said.
      "He also discussed the third-degree theft conviction," the appeals court said. "He informed the jurors that he had used the baseball team's money, but was unaware at the time he was not allowed to use the funds for the purposes he did."
     In cross examination, Ellis told jurors that he had paid for some team pizza parties and rented a van to drive the team to Wenatchee. He later learned he could not use the team's money for those purposes.
     Burchard ruled after the defense rested that the two convictions involved "special relationships" and evidence about those matters was admissible to establish the defendant's intent.
     The prosecution brought in Ellis's former employer to discuss the second-degree theft incident. He testified that Ellis received money from customers and did not place it in the till.
     Ellis told a deputy sheriff that he did not take money from the till for his personal use.
     The employer eventually installed a video camera that showed Ellis taking money from the till, court testimony said.
     One of the parents of a baseball player testified that money was discovered missing from the team's account when there was not sufficient funds to order new uniforms for the following season.
     In rebuttal, Ellis testified that he did not steal money from customers, but that on one occasion he placed a large payment on the shelf instead of in the till.
     In closing arguments, the defense said Schachtschneider was confused about his checks.
     The prosecutor stressed the problems began during the period Ellis had access to the account and that he was the beneficiary of the checks.
     The prosecutor concluded that Ellis was the one with the motive and that he was not above taking money from people who trusted him.
     The appeals court said the court did not err in admitting the two convictions even though they occurred 11 and 13 years prior to the three counts facing Ellis.
     The appeals court said Burchard could admit the crimes, as they involved dishonesty that could be used to attack the credibility of a witness.
     The appeals court said there was a similarity between the prior crimes and the current one because the defendant took advantage of money entrusted to him.