Gainer v. State, 3 Div. 23

• Decision Date: 25 August 1989
• Docket Number: 3 Div. 23
• Citation: 553 So.2d 673
• Parties: Frances C. GAINER v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 673

553 So.2d 673

Frances C. GAINER v. STATE.

3 Div. 23.

Court of Criminal Appeals of Alabama.

Aug. 25, 1989.

Rehearing Denied Sept. 29, 1989.

Certiorari Denied Dec. 1, 1989

Alabama Supreme Court 89-65.

James F. Hampton, Montgomery, for appellant.

Don Siegelman, Atty. Gen., and Mary Elizabeth Culberson, Asst. Atty. Gen., for appellee.

BOWEN, Judge.

Between May of 1986 and July of 1987, Frances C. Gainer, a beautician at a nursing home earning less than $11,000 per year, obtained $111,000 from 83-year-old Margaret S. Endicott. Gainer was convicted of first degree theft of property, sentenced to ten years' imprisonment (to be served on work release), and ordered to make restitution in the amount of $111,000. Five issues are raised in this appeal from that conviction.

I

Gainer's first argument is that the state failed to establish a prima facie case of first degree theft.

The state's evidence against Gainer was largely circumstantial. The victim, Mrs. Margaret Endicott, was deceased at the time of trial. This evidence showed that Gainer was employed as a beautician at Tyson Manor Nursing Home from 1977 until July of 1987. She did not serve as a nurse's aide. During the year between July 1, 1986, and June 30, 1987, Gainer's net income from Tyson Manor was $10,680.15.

Mrs. Endicott was a patient at Tyson Manor from October 26, 1984, to November 21, 1984. She was readmitted as a patient on September 19, 1985, following hospitalization for malnutrition. During this hospitalization, she was diagnosed as having Parkinson's Disease. At the time of her second admission to Tyson Manor, Mrs. Endicott had in her possession a $5,000 certificate of deposit and eleven checks which totalled over $3,700. These items were discovered by Tyson Manor personnel on October 14, 1986, and were placed in the nursing home safe. Several of the checks were stale dated and Ms. Mary Tucker, bookkeeper and administrative assistant at Tyson Manor, obtained replacement checks for Mrs. Endicott from the issuers.

Mrs. Endicott remained at Tyson Manor almost ten months. On July 7, 1986, she was discharged and returned to her home. Her doctor agreed to discharge her on the condition that she obtain full-time, in-house care, as she was confined to a wheelchair and was unable to properly care for herself. At the time she left the nursing home, Mrs. Endicott was approximately two weeks shy of her 84th birthday. She was a widow and childless, and had no relatives residing in Alabama. Mrs. Endicott died on July 9, 1987.

Shortly before Mrs. Endicott's discharge from Tyson Manor, Gainer began taking her on outings. Tyson Manor records show that Gainer "checked her out" on May 15, May 28, June 4, June 17, June 26, and June 27. After Mrs. Endicott's discharge from Tyson Manor, Gainer stayed with her at times. One of Mrs. Endicott's neighbors testified that Gainer said "she was just going to look after Mrs. Endicott because she was practically totally disabled and she was going to stay with her so Mrs. Endicott could be at home." Other sitters were also engaged to care for Mrs. Endicott at the rate of $1,000 per month, although it does not appear that Mrs. Endicott initially had the 24-hour-a-day care deemed necessary by her doctor.

On July 22, 1986, some two weeks after Mrs. Endicott's discharge from Tyson Manor, a joint checking account (the "City Federal account") in the names of "Fran Gainer or Margaret Endicott" was opened at City Federal Savings and Loan Association in Montgomery. The address given for this account was 4055 Strathmore Drive, which was Gainer's address. The signature card/account agreement for this account provided in pertinent part: "This account is a joint account. All sums now on deposit or hereafter deposited in this account ... shall be owned jointly with the right of survivorship and not as tenants in common...." Certificates of deposit payable to Mrs. Endicott and totalling over $40,000 were closed out and deposited into the City Federal account.

Mrs. Endicott had an individual checking account at First Alabama Bank (the "First Alabama account"). On October 13, 1986, this account was changed to a joint account with Gainer. The signature card for this account indicates that the account was joint with right of survivorship. The account contract on the reverse of the signature card provides in pertinent part: "Deposits to such accounts become the joint property of all Depositor(s)." The bank's "CHANGE OF TITLE--DEPOSIT ACCOUNT" form states as the reason for this change: "Mrs. Endicott has requested because of difficulty in signing checks."

Prior to the change in the First Alabama account, a number of checks payable to Gainer or "Cash" in varying amounts were written on this account and signed by Mrs. Endicott as maker. Subsequent to the opening of the City Federal account and the change in the First Alabama account, funds in these accounts were utilized to purchase various items for Gainer and members of her family. These purchases included a red 1986 Corvette, a 1987 Hunter-23 sailboat, a home computer, a tanning bed, furniture, a refrigerator, a dishwasher, and a number of pieces of gold jewelry. Gainer also utilized these accounts to pay her cable television, telephone, water, and electric bills; to make payments on her MasterCard debt and certain other debts; and to pay automobile insurance premiums and dental bills for herself and members of her family. Mrs. Endicott's utilities and other bills were also paid out of these accounts, along with payments to the various sitters who were engaged to care for her. It appears that Gainer signed the majority of these checks as maker, although Mrs. Endicott also signed some checks from time to time.

Between May 1986 and June 1987, over $185,000 was expended from these accounts. The state alleged that some $111,000 was used by Gainer without Mrs. Endicott's authorization for purchases and expenditures inuring to the benefit of Gainer or her family members. With the exception of $197.29 representing checks payable to Gainer, all of the funds in both these accounts originated from checks payable to Margaret Endicott. These included Veteran's Administration checks, Indiana State Teachers Retirement Fund checks, Social Security checks, checks representing the proceeds of certificates of deposit in Mrs. Endicott's name, and various dividend and interest checks.

Several witnesses, some of whom had been acquainted with Mrs. Endicott for a number of years, described Mrs. Endicott as "very frugal," "tight," "a miser," and a person who "kept close to her money." One of these witnesses stated that Mrs. Endicott's furniture was "poor," and that her clothes were "nice clothes, but real old." While in Tyson Manor, Mrs. Endicott rented a semi-private room rather than a private room, although the monetary difference was only four dollars per day. It was established that Mrs. Endicott owned a 1975 Chrysler New Yorker and did not have a dishwasher. Several witnesses testified that Mrs. Endicott saved paper towels and tin foil for reuse.

Ola Johnson testified that her mother had worked for Mrs. Endicott and that she had known Mrs. Endicott 27 years, since she (Ola) was a child. Ola had also worked for Mrs. Endicott after her mother retired and had visited Mrs. Endicott at Tyson Manor in order to "do for her." Mrs. Endicott would lend members of the Johnson family money from time to time. In 1985, Mrs. Endicott made a $5,300 loan to Ola so that Ola could purchase an automobile. An agreement embodying this loan was drawn up at a bank. Although Ola made some payments on this loan, she did not repay it in full, as the debt was forgiven in Mrs. Endicott's will. In all the years Ola knew and worked for her, Mrs. Endicott never gave Ola a car, a sailboat, or a home computer, or bought her furniture and jewelry.

Various witnesses testified as to Mrs. Endicott's mental condition after her release from Tyson Manor. Mrs. Endicott often asked about her husband and her mother, both of whom were deceased. She also requested to go upstairs, but lived in a single floor residence. Several times, she requested one sitter to prepare supper for her deceased husband. She once requested another sitter to bring tea into her bedroom and share it with she and her friends, although no one else was there. Ola Johnson testified that Mrs. Endicott was "alert" when she first left Tyson Manor, but her mental condition began to deteriorate thereafter. However, the sitter who began staying with Mrs. Endicott in the summer of 1986 testified that, "[e]ver since I first went there," Mrs. Endicott requested to go upstairs and that her mother be brought out of the back room. A long-time neighbor of Mrs. Endicott's stated that Mrs. Endicott did not always recognize her when she visited Mrs. Endicott at her home. When asked by the assistant district attorney if Mrs. Endicott was of sound mind from the time she left Tyson Manor until the time of her death, this neighbor responded, "Not all the time."

At some point in time after Mrs. Endicott returned to her home, Gainer had Mrs. Endicott's telephone number changed to an unlisted number and also had the locks on Mrs. Endicott's doors replaced. Prior to the locks being changed, several neighbors and Ola Johnson, all of whom Mrs. Endicott had given keys to her house, would frequently check on Mrs. Endicott. In October 1986, Betty McCain, a neighbor, came over to check on Mrs. Endicott and found her alone, semi-conscious on her bed, and lying in her own excrement.

Two of the sitters engaged to care for Mrs. Endicott stated that Gainer instructed them not to give Mrs. Endicott any bank statements. One sitter, Ramona Anderson, stated that this was "because [Gainer] said Mrs. Endicott had lost some important mail." The other sitter, Ann Jordan, also testified that Mrs. Endicott was given medication which Gainer "fixed up in envelopes with the date and time." Additionally,...