Everett v. State

• Decision Date: 13 November 2002
• Docket Number: No. 4D00-4165.,4D00-4165.
• Citation: Everett v. State, 831 So.2d 738 (Fla. App. 2002)
• Parties: Mollie EVERETT, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

831 So.2d 738

Mollie EVERETT, Appellant, v. STATE of Florida, Appellee.

No. 4D00-4165.

District Court of Appeal of Florida, Fourth District.

November 13, 2002.

Carey Haughwout, Public Defender, and Ursula Cogswell and Marcy K. Allen, Assistant Public Defenders, West Palm Beach, for appellant.

Richard E. Doran, Attorney General, Tallahassee, and Meredith L. Balo, Assistant Attorney General, Fort Lauderdale, for appellee.

STEVENSON, J.

Appellant, Mollie Everett, was charged with exploitation of the elderly and grand theft and tried by jury. The trial court granted a judgment of acquittal on the grand theft charge, but the jury convicted Everett on the exploitation of the elderly count. On appeal, Everett argues that the trial court erred in denying her motion for judgment of acquittal for exploitation of the elderly. We agree and reverse.

Appellant was charged with exploitation of an elderly person, for a value of $20,000 or more, and grand theft, both charges relating to the same property. During trial, Christina Arner, an employee of the South Florida Guardianship Program (the agency), testified that the agency was originally appointed as guardian for Francis Frederick's daughter, Glenda, who is mentally incapacitated. Arner and two other social workers first visited Frederick's home on July 14, 1998, to assess the situation and determine what the agency needed to do to intervene on Glenda's behalf. The house was very dark and dirty, the windows were closed providing no air flow, there were cockroaches and cobwebs, and the toilet was overflowing. And, to make matters worse, there had been a kitchen fire resulting in smoke damage, and it appeared that there was no electricity.

During the home visit, Arner became concerned not only for Glenda, but also for Frederick, who was in her seventies. Arner informed Frederick of her concerns and that she would be seeking to establish a guardianship for Frederick. Arner reported the conditions in the home to her office and called the abuse hotline, thus involving the Department of Children and Families (DCF). Two days later, the agency petitioned the court for emergency temporary guardianship of Frederick. On July 16, 1998, the court appointed the agency as Frederick's emergency temporary guardian, giving them authority to make decisions on her behalf and making them responsible for her financial affairs and assets.

When Arner returned to the home on July 20th, Mollie Everett was there with Frederick and work had been done on the house. There was new carpeting, the windows were open, there was a fan in the living room, and the house was cleaner. Arner, concerned about who was paying for the improvements, introduced herself to Everett and explained the guardianship. Everett responded that she was Frederick's goddaughter and that Frederick had already told her about the guardianship. Arner did not want to discuss the situation further in front of Frederick because it was upsetting to Frederick that the agency was involved so she asked Everett to make an appointment to come to her office.

On August 4, Everett went to Arner's office. Elaine Laird, Assistant Director of Finances for the agency, also joined the meeting. Everett brought checks and receipts to show what she had spent on Frederick's home improvements. Everett signed an affidavit stating that on July 17, 1998, she took Frederick to Barnett Bank at Frederick's request and closed out one of Frederick's accounts in the amount of $38,604.79. The money from the account was issued in two checks in the amounts of $5,000 and $28,604.79, and cash in the amount of $5,000. In the affidavit, Everett acknowledged that she had provided receipts in the amount of $15,961.62 to the agency, but that approximately $14,831.74 that was in her possession was unaccounted for by those receipts.¹ Everett didn't offer an explanation for the unaccounted money that day, but told Laird that she would look for more receipts and come back later.

Subsequently, Everett contacted Arner, stating that she wanted to account for the rest of the money. They agreed to meet again on August 7th, and this time, Bill Simpson, another social worker, was present. At the meeting, Everett signed an additional affidavit which was read into evidence at trial. According to this affidavit, Everett's attorney had advised her to offer some additional information to the agency. Everett stated in the affidavit that after the money was withdrawn from the bank, Frederick asked Everett to take her to the post office so that Frederick could send $5,000 in cash to a "psychic" in South Carolina who could help keep the guardianship agency out of her affairs. Later, Frederick sent another $4,000 cash to this same woman. Everett also stated that Frederick kept $1,000 in cash.²

Cynthia Riles and Alfred Nuevo, protective investigators with DCF, became involved with the case because of the abuse hotline report. Nuevo was assigned to Frederick's case in September of 1998 after Riles was transferred to another case. Everett spoke with Riles on August 14, 1998, and Nuevo in October of 1998. According to Riles and Nuevo, Everett stated that she was Frederick's goddaughter and admitted taking Frederick to the bank. Everett claimed, however, to have no knowledge of the whereabouts of the rest of the money and did not mention the money sent to the "psychic" in South Carolina. According to Nuevo, he could not talk to Frederick as she lacked the capacity to be a reliable source.

Defense counsel moved for a judgment of acquittal, arguing that the State failed to prove that Everett endeavored to unlawfully obtain or deprive Frederick of her funds. In addition, the defense stressed that there was no evidence that Everett took the money; rather, at best, some of the money was simply unaccounted for by written receipts. The trial judge apparently accepted Everett's argument and stated:

[T]here has to be some evidence that the defendant took this money from Francis Frederick.... Unless I missed it, there was none. The record seems totally void of any testimony that anything was taken from Ms. Frederick and appropriated by the defendant.

. . . .

The taking has to be with the intent to appropriate it to her own use or to the use of somebody else.... Where is there any showing of intent, that the defendant had the intent to temporarily or permanently deprive Frances Frederick of her right to the property and appropriate it to her own use?

The trial court then granted the motion for judgment of acquittal as to count two (grand theft), but denied it as to count one (exploitation of an elderly person).

Discussion

A special standard of review of the sufficiency of the evidence applies where a conviction is wholly based on circumstantial evidence. See State v. Law, 559 So.2d 187, 188 (Fla.1989)(citing Jaramillo v. State, 417 So.2d 257 (Fla.1982)). Where the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence. See McArthur v. State, 351 So.2d 972 (Fla.1977). Furthermore, a motion for judgment of acquittal should be granted in a circumstantial evidence case if the State fails to present evidence from which the jury can exclude every reasonable hypothesis except that of guilt. See Law, 559 So.2d at 188 (citing Wilson v. State, 493 So.2d 1019, 1022 (Fla.1986)).

Upon close review of the record, we agree with appellant that the State failed to present competent, substantial evidence of exploitation from which the jury could exclude every reasonable hypothesis except that of guilt. Although the State is not required to conclusively rebut every variation of events which may be inferred from the evidence, it is required to present competent, substantial evidence which is inconsistent with appellant's theory of events. See Law, 559 So.2d at 189. Here, the State presented no evidence contrary to Everett's theory that she used the missing money as claimed and returned the unaccounted-for money to Frederick. Therefore, as a matter of law, the State's evidence was insufficient to sustain a conviction.

Count I of the information charged appellant with exploitation of the elderly as provided in section 825.103, Florida Statutes. Subsection (1)(a) essentially has three basic elements and subsection (1)(b) has two. In brief, to prove exploitation under section 825.103(1)(a), the State was required to establish that: (1) the defendant stood in a position of trust and confidence with the victim; (2) the defendant obtained funds belonging to the victim with the intent to temporarily or permanently deprive the victim of those funds; and (3) the defendant used deception or intimidation to obtain the funds. See § 825.103(1)(a)1., Fla. Stat. (2001).³ To establish exploitation under section 825.103(1)(b), the State was required to prove that: (1) the defendant obtained funds belonging to the victim with the intent to temporarily or permanently deprive the victim of those funds and (2) the defendant knew that the victim lacked the capacity to consent to this taking. The one common element of a conviction predicated on either subsection (1)(a) or (1)(b) is proof that the defendant attempted to, or obtained or used funds of the elderly victim with the intent to temporarily or permanently deprive the victim of those funds. Here, the evidence was legally insufficient to establish this essential element.

Intent to temporarily or permanently deprive

In the instant case, as the trial court recognized, there was no proof that Everett took Frederick's money with the intent to deprive her of it either temporarily or permanently. The State's only "proof" that Everett obtained Frederick's funds with the intent to temporarily or permanently deprive Frederick of those funds was its attack on Everett's accounting for those funds. Yet, the State presented no proof...