People v. Cain

• Decision Date: 25 January 2000
• Docket Number: Docket No. 204590.
• Citation: 605 N.W.2d 28,238 Mich. App. 95
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Janice C. CAIN, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

605 N.W.2d 28

238 Mich. App. 95

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Janice C. CAIN, Defendant-Appellant.

Docket No. 204590.

Court of Appeals of Michigan.

Submitted May 20, 1999, at Marquette.

Decided October 12, 1999, at 9:05 a.m.

Released for Publication January 25, 2000.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, Gary L. Walker, Prosecuting Attorney, and Terrence Dean, Civil/Appellate Counsel, for the people.

Karen L. Alholm, Marquette, for the defendant on appeal.

Before WHITBECK, P.J., and MARKMAN and O'CONNELL, JJ.

WHITBECK, P.J.

A jury convicted defendant Janice Cain of larceny over $100, M.C.L. § 750.356; MSA 28.588,¹ for an extended series of events in which Cain took approximately $250,000 from the late Marguerite "Peg" Bergdahl,² an elderly woman for whom Cain acted as a limited guardian. The trial court sentenced Cain to two to five years' imprisonment, but she is free on bond pending appeal. We affirm the conviction and sentence in this case.

I. Factual Background and Procedural History

A. Bergdahl

Bergdahl's friends and acquaintances, some of whom knew her for more than fifty years, described her as a "meticulous" dresser, a "true lady," a "sweetheart," "very capable," an independent decisionmaker, and "careful" with her money. Nevertheless, after Roger, Bergdahl's husband of thirty-seven years, and her mother died within a month of each other in late fall 1988, her friends noticed changes in her demeanor, mental acuity, and outward appearance.³ According to Goldie Paul, a friend from grade school, Bergdahl began "deteriorating," seemed "very depressed," and uncharacteristically failed to notice when her clothing was in disarray. Paul discovered that Bergdahl had been swindled in several scams through the mail. Mary Trebilcock, a long-time acquaintance, also noted Bergdahl's tendency to fall for scams and her increasing forgetfulness. Mary Tasson, another acquaintance, observed that Bergdahl would repeat herself, sometimes mentioning the same thing six or seven times in an hour. Tasson noticed that Bergdahl had difficulty remembering people and seemed "confused."

James Tobin, M.D., Bergdahl's family physician, was also aware of her mental deterioration. He was generally concerned about her ability to "function at home and make decisions." Bergdahl, who had previously arranged for Mary Trebilcock's husband to hold a power of attorney⁴ to make certain financial and medical decisions for her, contacted Tobin on June 19, 1991, and requested that he prepare a letter regarding her mental status because she felt that she needed a guardian. Tobin wrote the letter and also noted in her medical record that Bergdahl wanted someone to manage her money for her.

On the basis of his review of Bergdahl's hospital records and personal observations, Tobin concluded that by June 1991 Bergdahl had "impaired mental capacity" and suffered from "senile dementia" or "chronic brain syndrome." He believed that her mental health problems may have been attributable to several short episodes in the 1980s when she had poor blood circulation to her brain. Some of Bergdahl's acquaintances, such as Shelba Johnson, did not observe anything "abnormal" about Bergdahl's appearance, demeanor, or social skills well into 1992. However, four other physicians, two doctors in general practice who treated Bergdahl and two psychiatrists testifying as experts, agreed with Tobin that Bergdahl had either Alzheimer's disease or a form of senile dementia by the summer of 1991. Although these doctors could not pinpoint a date on which Bergdahl became incompetent, they noted that her competence was likely intermittent that summer and certainly grew worse with time. As becomes apparent later in this opinion, Bergdahl's competency is critical to whether she could have granted Cain consent to take the money at issue.

B. The Relationship Between Bergdahl and Cain

The record does not indicate precisely when Bergdahl met Cain. We do, however, know that Cain was acquainted with Roger Bergdahl, although several witnesses testified that Bergdahl may not have liked Cain while Roger Bergdahl was alive. In any event, Cain and Bergdahl became better acquainted after Roger Bergdahl's death in 1988 when Cain gave Bergdahl a dog named Jet, whom Bergdahl adored. Cain began to take care of Bergdahl, who did not have children, taking her to church and including her in holiday celebrations. Cain assisted Bergdahl by driving her around town, taking her to doctor's appointments and occasionally doing tasks like grocery shopping or arranging for household repairs; other hired caregivers attended to more personal aspects of Bergdahl's care. Cain's assistance gave her increasing control over Bergdahl's money.

According to Tobin and notes taken by nurses at Bell Memorial Hospital, by early June 1991 Cain was aware that Bergdahl was experiencing episodes of dementia. Cain expressed concern about Bergdahl's mental status to medical staff and even called the probate court in June 1991 to inquire about guardianship for Bergdahl. In early July 1991, Cain took Bergdahl to see Bergdahl's attorney, David Savu, to draft a power of attorney and a new will. Savu finished drafting the power of attorney giving Cain authority to make medical and financial decisions for Bergdahl's benefit in September 1991. After going through several drafts, including making changes Bergdahl allegedly proposed but which Cain typed, Savu finalized the new will in December 1991, making Cain the personal administrator and leaving Cain the residue of the estate; at that time Savu did not know that the residue of Bergdahl's estate likely totaled hundreds of thousands of dollars.

Meanwhile, in late July 1991, Bergdahl purportedly agreed to allow Cain to "borrow" as much of Bergdahl's money as Cain desired. The writing for this agreement said:

An Agreement Between

Marguerite G. Bergdahl

and

Janice C. Cain

I Marguerite G. Bergdahl do here by [sic] give permission to Janice C. Cain to have access to and use any of my personal money for her professional and/or personal use.

The payback schedule will commence upon the first anniversary of the opening of her business, in an amount affordable to her business.[⁵]

This is due to her not taking payment for any of her work done for me.

Both Cain and Bergdahl signed the document and dated it July 30, 1991. Two witnesses, Trisha Signs and Jackie Caskey signed at the bottom of the agreement, also dating their signatures as July 30, 1991.

We say that Bergdahl "purportedly" agreed to allow Cain to borrow this money because, in addition to the question of capacity to consent, there is some dispute in the record regarding the circumstances under which she and Cain executed the writing. One of the witnesses, Trisha Signs, testified that she did not witness Bergdahl sign the agreement; in fact, Signs did not recall any signatures on the page at the time she signed her name to the document. Rather, Bergdahl waited in the car outside Signs' home one evening while Signs and Cain went in the home to "witness" the document's execution. Signs did not remember the document looking as it did in court. She recalled, but could not describe, several other pages, perhaps a cover sheet or letter to Bergdahl's attorney, attached to the agreement. Furthermore, she did not believe that she actually signed the document on July 30, 1991, but that Cain asked her to write that date. In contrast, Jackie Caskey testified that she was present when Bergdahl signed the document and that she appeared to sign the document willingly, having said, "[I]t's my money, I will do as I please." Caskey, who admitted that she did not read the written agreement, said that she did not have any reason to believe that she witnessed Bergdahl and Cain sign the writing on any date other than July 30, 1991. Regardless of the legal validity of this document, it had an immediate effect on Bergdahl's finances.

Lisa Blondeau, a teller at the Ishpeming Credit Union in July 1991, said that she was working July 30, 1991, the same day Cain and Bergdahl signed the writing, when Cain walked in shortly before closing time. Cain had three checks totaling more than $147,000 issued by other financial institutions and made out to Bergdahl. Cain asked Blondeau to open joint checking and savings accounts in Cain's name and Bergdahl's name. Blondeau originally objected because the bank was only open for business for another five minutes and Bergdahl was not present. However, Cain persuaded Blondeau to open the accounts by arguing that she did not want to carry the checks with her because she might lose them and promising to bring Bergdahl into the bank the next day to sign the paperwork for the accounts. Bergdahl apparently did sign the account papers at some later date.

The following year, in July 1992, Bergdahl's cousin, Judy Spencer, filed a petition for guardianship in the probate court. The probate court appointed attorney Paul Peterson as Bergdahl's guardian ad litem late that summer and appointed Cain as Bergdahl's limited guardian in December 1992. Peterson, who did not know about the July 1991 agreement between Cain and Bergdahl when Cain was appointed guardian, said that the guardianship order only permitted Cain to use Bergdahl's money for Bergdahl's benefit. Peterson also clarified that the order made no provisions for Cain to be paid for her work as guardian.

Peterson recommended to the probate court that it appoint a conservator to audit Bergdahl's financial records because Cain had already been acting in what he considered to be a fiduciary role with Bergdahl for some time. The effort to find a conservator continued until August 1993, when the court appointed Richard Wilson as conservator over Cain's request to be appointed for that position. Cain placed Bergdahl in a nursing home that same month.

Wilson immediately began investigating...