909 P.2d 1184 (Nev. 1996), 25824, Walch v. State
|Citation:||909 P.2d 1184, 112 Nev. 25|
|Party Name:||Anne Robin WALCH, Appellant, v. The STATE of Nevada, Respondent.|
|Case Date:||January 04, 1996|
|Court:||Supreme Court of Nevada|
James J. Jackson, State Public Defender, and Robert E. West, Deputy Public Defender, Carson City, for Appellant.
[112 Nev. 26] Frankie Sue Del Papa, Attorney General, Carson City; Noel S. Waters, District Attorney, and Egan K. Walker and Anne E. Langer, Deputy District Attorneys, Carson City, for Respondent.
Nell Laird (Nell), an elderly woman, gave a durable power of attorney to appellant Anne Robin Walch. In handling Nell's financial affairs, Walch opened two joint accounts in her and Nell's names into which she placed the bulk of Nell's funds. Walch wrote a number of checks on these two accounts which she spent for her and her family's benefit. She also deposited some of Nell's funds directly in her own account and cashed checks made out to Nell. The State prosecuted Walch for theft. At her trial, she maintained that Nell allowed her to borrow the funds in question and that she intended to pay them back. Nell was not competent to testify. The jury found Walch guilty.
On appeal Walch raises two issues for the first time. She argues that as joint owner of the funds in the two accounts, she had lawful authority to withdraw them and could not be guilty of theft. She also argues that the amount of restitution ordered by the district court was arbitrary and improper. We conclude that [112 Nev. 27] these arguments are not persuasive and affirm the judgment of conviction.
Nell is an elderly resident of Carson City in her nineties. Ron Machado is a friend of Nell's who lives with her and assists her in her daily life. In early 1990, Machado was severely beaten at home by three intruders and left somewhat disabled physically and mentally. Shortly after that, Darlene Roullard, a CPA, began handling both Nell's and Machado's financial affairs. Machado became dissatisfied with Roullard. He told Walch, a friend of his, about this, and they agreed that Walch would assume control of his financial affairs.
On December 20, 1991, Nell executed a document providing Walch with a durable power of attorney for her. The document expressly precluded Walch from using Nell's assets for Walch's "own legal obligations, including but not limited to support of the agent's dependents." On that same day, Walch received the bulk of Nell's funds, approximately $11,000.00, from Roullard. Walch deposited $2,000.00 from this $11,000.00 into her personal account on December 23, 1991. She did this by endorsing Nell's name on a check drawn from an account held by Nell and Machado.
With the remaining sum of approximately $9,000.00, Walch opened a joint account for her and Nell at First Interstate Bank (FIB) on December 24, 1991. Nell herself signed the check for this deposit. Walch applied for and received an ATM card with the account. She listed herself as Nell's "guardian" on the application. Walch changed this FIB account to a trust account, to which only she had access, on January 8, 1992. Walch also opened a second joint account for her and Nell at Bank of America (later U.S. Bank) with an additional $1,950.00 which she had earlier received from Nell. (This account and the FIB account are referred to as "the two accounts.") She later lied to a sheriff's detective and told him that this money had come from the $11,000.00 first received from Roullard.
Machado had given a power of attorney to Walch as well. He became irritated with Walch and formally revoked this power. On March 13, 1992, Machado also had Nell execute a revocation of Walch's power of attorney and place that power in him. Machado said Walch knew of the revocation within a week or so. Walch said she learned of it around August 1992. However, she continued to tell a number of people, including a realtor, social worker, and assistant sheriff, that she had such power because she continued to handle Nell's and Machado's affairs despite the revocations.
[112 Nev. 28] In September 1992, Nancy Hunter, a State of Nevada social worker, received a report that Nell might not be properly cared for. Hunter visited Nell at home and spoke with her and Machado. She found no major problems and decided to wait and monitor the situation. Hunter spoke to Walch on the phone the next day. Walch informed Hunter that she was the guardian of both Nell and Machado.
In October 1992, Hunter received a report that Nell was very upset because her house was being sold. Hunter went to Nell's home and found that this was true. She subsequently met with Walch and discussed the matter. Walch told her that the plan was to sell the house and buy a bed and breakfast in Virginia City, where Nell would live, Machado would conduct tours, and Walch and her husband would run the bed and breakfast and a catering business. Hunter informed Walch that she thought such a move would not benefit Nell either personally or financially. Hunter asked Walch to meet with Dennis Green, an assistant sheriff who acted as a public guardian for the consolidated municipality.
Green, Hunter, and Walch met at Nell's on October 19, 1992, to discuss Walch's relation and actions in regard to Nell. Initially, Walch indicated she held some kind of guardianship but later backed off from that position and said she held a power of attorney for Nell. A day or two later at Hunter's office, Walch provided Hunter with some legal documents, apparently regarding her power of attorney. Hunter gave Walch guidelines for guardians used by Washoe County courts. Later that day, Walch returned to Hunter's office and said she had looked at the guidelines and needed to clear things up. Walch said she did not want to get arrested in front of her children and indicated that she had taken more than $10,000.00...
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