Florida Appellate Court Reverses Conviction of Caregiver Who Received $61,000.00 Gift from an Elderly Woman in the Defendant
The case of Johnson v. State, 991 So. 2d 962 (Fla. 4th DCA 2008) reversed a conviction for violating section 825.103(1), Florida Statutes, which makes it a crime for a person in a position of trust and confidence or who has a business relationship, with an elderly person or disabled adult, by deception or intimidation, to obtain or use property of the victim; or if the defendant knew or should have known that a victim lacked the capacity to consent, and obtained or endeavored to obtain assets or property of the victim.
The defendant was the care-giver for an elderly woman who suffered from dementia and/or Alzheimer's disease. The defendant was charged with obtaining a $61,000.00 cashier's check from the alleged victim. The state introduced evidence that in addition to obtaining the check, the defendant was also the beneficiary of half of the victim's estate, plus the victim's condominium.
While caretaker, caring for the alleged victim, the defendant took the alleged victim to the victim's bank where the elderly woman closed out a $61,000.00 matured certificate of deposit and had a cashier's check drawn payable to the defendant. This formed the basis of the criminal charge.
During the trial, the state entered into evidence that the victim had prepared a Will and left a significant part of her estate to the defendant.
The first trial resulted in a hung jury. Prior to the first trial, counsel for the defendant moved to prohibit the state from introducing any evidence concerning the Will. The state argued that it was necessary to prove that the defendant was in a position of trust to the alleged victim.
The trial court denied the motion and let the state introduce that testimony.
The lawyer who prepared the Will testified that the defendant brought the victim to his office, however, the defendant did not participate in any of the meetings with the alleged victim. The witness further testified that he prepared the Will based upon his meetings with the alleged victim by herself and would not have prepared the Will if he felt that the client was not competent.
Prior to the second trial, counsel for the defendant again moved to prohibit the introduction of any evidence concerning the Will. During the second hearing, the state argued that the Will proved the exploitation pursuant to the allegations in the information. The defense argued that the information was limited to the CD transaction, and there were no allegations concerning or involving the Will. Prior to the second trial, the alleged victim died.
The state also argued in the second trial that the Will was inextricably intertwined with the charged offense and the trial court agreed. The evidence involved the defendant's testimony during which she acknowledged being in a position of trust with the victim and stated that the check was a gift.
The defendant also testified that she did not see any sign of dementia in the alleged victim during the summer of 2002. The victim could initially take care of herself, pay her own bills and go shopping, but sometimes needed help with her checkbook. The new Will was prepared in March 2003, and the check was given to the defendant in April 2003.
All agreed that by August 2003, the victim was incapacitated due to Alzheimer's. The trial focused on when the victim became incapacitated, when the defendant became aware of that fact and whether the defendant had exploited her position of trust and confidence in relation to taking the money from the CD.
The state argued that the defendant's inclusion in the Will was part of the exploitation charge. The appellate court reversed the conviction stating that the trial court committed error in admitting evidence concerning the Will.
The court noted that the Florida Evidence Code defines relevant evidence in theWilliams rule, which is contained in $ 90.401, Florida Statutes. While "[s]imilar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue," it is "inadmissible when the evidence is relevant solely to prove bad character or propensity" of the defendant to commit crimes. See $ 90.404(2)(a), Fla. Stat. (2007).
In determining relevance of the Will, the court looked to the elements of the crime charged and whether the evidence tends to prove or disprove a material fact. The court noted that the exploitation statute provides for two theories of prosecution under $$ 825.103(1)(a)(1) and (2), Fla. Stat. (2007). At trial and on appeal, the state continued to argue that the Will proved the defendant occupied a position of confidence and trust with the victim.
The appellate court disagreed. It noted that being a "beneficiary of a Will proves nothing more than that the testator chose to leave assets to that person, regardless of the nature of any relationship. And it is unnecessary for the state to admit the Will to prove that the defendant occupied a position of trust and confidence because the defendant readily admitted that fact." Johnson v. State, 991 So. 2d at 966, 967.
The Will, viewed in isolation, was not a bad act. However, the state's argument suggested that the defendant possessed bad character or propensity to exploit the elderly, and that she was a greedy person who, unsatisfied with being a beneficiary in the Will, considered herself entitled to the additional cash. The court held that this "turned the otherwise irrelevant and generic fact of being the beneficiary in a Will into the very "bad act" evidence deemed inadmissible under section 90.404, Florida Statutes (2007)." Johnson at 967.
The court also noted that the state must prove "bad act" evidence by clear and convincing evidence. McLean v. State, 934 So. 2d 1248, 1256 (Fla. 2006).
The court commented on the state's opening statement to the jury that the defendant exploited the victim by not only taking the money from the CD, but also by becoming a future recipient of the condominium and half of the estate through the Will. The prosecutor argued in closing that the defendant "saw an opportunity to get what she thought she was entitled to, because no one else was helping her care for [the victim]... She thought she was entitled to $61,000.00 and while at it, throw in half of the estate and the condo as well." Johnson at 967.
Section 825.103(1)(a), Florida Statutes, states that an individual who either stands in a position of trust and confidence with the victim or has a business relationship with the victim is guilty of exploitation when he/she "knowingly, by deception or intimidation," obtains or uses the victim's property.
Section 825.103(1)(b), Florida Statutes, states any person "who knows or reasonably should know that the elderly person or disabled adult lacks the capacity to consent," commits a crime when obtaining or using the victim's property with the intent to deprive the victim of said property.
The statutes valid purpose can sometimes be misapplied. Here the court reversed the conviction and rejected the evidence concerning the Will.