Parrondo v. State, 3D16–1939
Decision Date | 07 March 2018 |
Docket Number | No. 3D16–1939,3D16–1939 |
Citation | 239 So.3d 777 |
Parties | Lazaro PARRONDO, Appellant, v. The STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public Defender, for appellant.
Pamela Jo Bondi, Attorney General, and David Llanes, Assistant Attorney General, for appellee.
Before ROTHENBERG, C.J., and LAGOA and LOGUE, JJ.
Lazaro Parrondo ("the defendant") appeals his conviction for exploitation of an elderly person or disabled adult based on an alleged jury instruction error. Specifically, the defendant claims that the trial court gave a jury instruction that omitted an element of the charged offense; the omitted element was an element disputed at trial; and although the defendant's trial counsel failed to object to the defective jury instruction, the error was fundamental; and thus, he is entitled to a new trial. Alternatively, the defendant argues that his trial counsel's failure to object to the defective jury instruction demonstrates ineffective assistance of counsel on the face of the record. We agree with the defendant that the jury instruction given was defective, and the defective jury instruction constitutes fundamental error because the instruction omitted a necessary element of exploitation of an elderly person or disabled adult; the omitted element was a disputed element at trial; and the omission of this element improperly reduced the State's burden of proof. However, as will be more fully explained below, the remedy in this case is not a new trial.
The exploited elderly person or disabled adult in this case is the defendant's aunt, Rosa O. Montero, who has an eighth-grade education, does not speak English, and was seventy-nine years old on the date of the offense. The State presented evidence at trial that the defendant and his girlfriend moved into Ms. Montero's home and began living with her in 2008. Ms. Montero owned her home since 1967, and in 2008, there was no mortgage on the property.
On June 10, 2008, shortly after moving into his aunt's home, the defendant brought Ms. Montero to a title company where she signed papers written in English establishing a reverse mortgage on her home and providing a lump-sum payment to Ms. Montero in the amount of $154,528.23, a payment which was wired to Ms. Montero's account. The defendant, who was unemployed and had obtained control over Ms. Montero's checkbook, used the funds from the reverse mortgage to purchase a 2006 Cadillac Escalade for $65,000 on July 2, 2008, and a 2006 Mercedes–Benz 350 on March 13, 2009.
The State presented evidence that, at the time Ms. Montero entered into the reverse mortgage, she lacked the capacity to understand or consent to the transaction. Ms. Montero was diagnosed with dementia in 2005, and her neurologist testified that when Ms. Montero executed the reverse mortgage in 2008, she was not capable of understanding the transaction.
The defendant, however, contended that Ms. Montero possessed the capacity to consent and did consent to the transactions. Thus, Ms. Montero's mental capacity and the defendant's knowledge of Ms. Montero's mental capacity were disputed issues at trial.
Section 825.103, Florida Statutes (2008), titled "Exploitation of an elderly person or disabled adult, penalties," provides as follows:
(emphasis added).
Thus, in 2008, the State could prove a section 825.103 exploitation of an elderly person or disabled adult violation by either establishing that: (1) the defendant, who was in a position of confidence and trust, knowingly deceived or intimidated the victim ; or (2) the defendant knew or should have known that the victim lacked the capacity to consent .1 The State proceeded under the second theory—that the defendant knew or should have known that Ms. Montero lacked the mental capacity to enter into the reverse mortgage and to consent to the defendant's use of the reverse mortgage proceeds for his own benefit. The jury, however, was not instructed that, in order to find the defendant guilty of exploitation of an elderly person or disabled adult, the State was required to prove beyond a reasonable doubt that the defendant knew or should have known that Ms. Montero lacked the capacity to consent. Instead, the jury instruction, was as follows:
EXPLOITATION OF AN ELDERLY PERSON OR A DISABLED ADULT
To prove the crime of Exploitation of an Elderly Person or Disabled Adult, the State must prove the following four elements beyond a reasonable doubt:
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Schminky v. State
...failure to instruct the jury on an element of a crime is fundamental error if the element was disputed at trial." Parrondo v. State, 239 So. 3d 777, 781 (Fla. 3d DCA 2018) (citing Garcia v. State, 901 So. 2d 788, 794 (Fla. 2005) ; Reed v. State, 837 So. 2d 366, 369–70 (Fla. 2002) ); see als......