State v. Maxon
| Decision Date | 21 November 2003 |
| Docket Number | No. 87,696, No. 87,697,87,696, No. 87,697 |
| Citation | 79 P.3d 202,32 Kan.App.2d 67 |
| Parties | STATE OF KANSAS, Appellee, v. CHRISTOPHER MAXON, Appellant. STATE OF KANSAS, Appellee, v. JODI MAXON, Appellant. |
| Court | Kansas Court of Appeals |
Allan E. Coon, of Norton, Hubbard, Ruzicka & Kreamer L.C., of Olathe, and Scott C. Gyllenborg, of Scott C. Gyllenborg, P.A., of Olathe, for appellants.
Stephen M. Howe and Steven J. Obermeier, assistant district attorneys, Paul J. Morrison, district attorney, and Phill Kline, attorney general, for appellee.
Before JOHNSON, P.J., GREENE, J., and DAVID W. KENNEDY, District Judge, assigned.
Christopher and Jodi Maxon were each convicted of two counts of theft and one count of mistreatment of a dependent adult. They appeal, challenging the sufficiency of the evidence and the imposition of Christopher's upward dispositional departure sentence. We affirm the mistreatment of a dependent adult convictions but reverse the theft convictions, thereby rendering the sentencing question moot.
The scenario presented is one in which the defendants took unfair advantage of the vulnerability of an elderly, recently-widowed woman for the defendants' personal and financial gain. The difficult legal questions presented emanate from the State's charging the defendants with felony thefts for conduct that appears to fit squarely within the definition of misdemeanor mistreatment of a dependent adult.
The victim, Bea Bergman, lost her husband, Paul, to a heart attack in January 1999. Bea and Paul had lived modestly and accumulated substantial assets valued in the millions of dollars. Bea had relied on Paul to handle all their major financial decisions and, at his death, was even relying exclusively on him for transportation. After Paul's death, Bea was "[v]ery confused and very lost"; she experienced several episodes of anxiety for which she summoned emergency medical assistance. The month following Paul's death, Dr. Yvette Crabtree of the Kenyon Clinic examined Bea and prescribed an anti-anxiety medication and an antidepressant.
Also in the month following Paul's death, Bea called Maxon Moving to arrange for the hauling of Paul's personal effects to the Salvation Army. Maxon Moving was a family-owned operation and had been one of Paul's regular customers since the 1940s. Further, Paul and Bea had hired Maxon Moving to move their belongings on a number of occasions. Bea talked with Joyce Maxon and mentioned that she intended to give her husband, Ron Maxon, Sr., a marble-top table that Ron Sr. had admired during previous moves. The next day Ron Sr. went to Bea's house. Bea gave him the table, as well as a thank you card containing a $2,000 check.
Shortly thereafter, Joyce became a frequent visitor at Bea's house. She would transport Bea to antique shops, to the grocery store, to the doctor's office, and to church. Eventually, Joyce was spending weekday nights at Bea's house, and Bea would spend the weekend at Joyce's house. Bea became progressively integrated into the Maxon family, which, in addition to Ron Sr. and Joyce, included Ron Maxon, Jr., Christopher Maxon, Jodi Maxon, and Sharyl Ledom. Bea attended Maxon family functions and wanted the Maxons to call her "Aunt Bea." Coincidentally, as Bea was being welcomed into the Maxon family circle, she began writing checks to and purchasing property for the various Maxon family members. During the approximately 8-month long feeding frenzy, Bea dispersed over $600,000 to or for the benefit of the Maxons. However, during this same period, Bea also wrote checks to her daughter, her granddaughter, and a niece.
Specifically, the theft charges in this case involved: (1) the sale of Bea's house to Christopher and Jodi; and (2) Christopher's purchase of a new truck. In May 1999, Bea had listed her house for sale with her real estate agents, Linda and Charles Stanfield; the listing price was $177,500. Shortly after the listing, Bea moved into an apartment. The listing was cancelled in June 1999, and Christopher and Jodi moved into the house. In July, the new occupants fenced the yard, installed a hot tub, and built a new deck, albeit Bea footed the bill. In late July or early August, Christopher and Jodi contracted with Bea to purchase the house for $100,000, financed in part with a $99,500 promissory note which was to balloon upon the Maxons' sale of their La Cygne, Kansas, house. The note was paid in full within 3 or 4 months. There was some testimony that Bea had offered to give the house to Christopher and Jodi.
In October 1999, Christopher picked out a new Ford truck at a dealership in Olathe. He asked the salesman for permission to drive the truck to show his mother, because if she approved of the vehicle, she would give him the purchase money. Christopher drove to Bea's apartment, gave her a ride, and presented her with the bill. Bea wrote a $38,745.34 check, payable to Olathe Ford, and gave it to Christopher to purchase the truck. Bea was not sure, but she thought Jodi accompanied Christopher when this transpired. The truck was titled solely in Christopher's name.
In November 1999, Bea reconciled with her estranged son, Paul Thorpe. Thorpe and his wife subsequently moved into an apartment down the hall from Bea.
During the Christmas season of 1999, Bea severed her relationship with the Maxons. The rift was precipitated by the Maxons' Christmas gifts to Bea, which she considered to be miserly responses to her Christmas gifts to them of $25,000 checks. She was hurt by the Maxons' failure to reciprocate her generosity and had no further contact with the Maxons.
Subsequently, Bea's son examined her financial records and noted the checks that had been written to the Maxons. Bea and her son met with the attorney that was acting as Paul's executor, who referred them to another attorney, Harry Wigner. Wigner sent Bea to a psychiatrist for an examination and contacted the district attorney's office about the possibility of filing criminal charges.
The psychiatrist, Dr. Everette Sitzman, diagnosed Bea as suffering from bipolar disorder with episodes of hypomania and prescribed a mood stabilizing agent. The doctor opined that people with Bea's affliction are vulnerable to influence by others and often require a protective trust or conservatorship to protect their assets.
After a year-long investigation, the Johnson County District Attorney's office filed charges against Ron Sr., Joyce Maxon, Jodi Maxon, Christopher Maxon, Sharyl Ledom, and Ron Maxon, Jr. All of the defendants, except for Ron Jr., were tried together. The case before us involves the charges against Christopher and Jodi which were identical: (1) one count of felony theft of Bea's house; (2) one count of felony theft of United States currency (used to purchase the Ford truck); and (3) one count of misdemeanor mistreatment of a dependent adult. The thefts were charged in the alternative, alleging that they were committed by obtaining or exerting unauthorized control over the property or that they were committed by obtaining the property through deception. Further, the jury was given an aiding and abetting instruction. Christopher and Jodi were convicted on all counts; the jury found the thefts were committed in both alternative manners. The district court granted the State's motion for an upward dispositional departure sentence in Christopher's case based on Bea's vulnerability and sent him to prison for 38 months. Jodi received a presumptive probation sentence.
Appellants structure their appeal to first challenge the sufficiency of the evidence to support a conviction based upon K.S.A. 2002 Supp. 21-3701(a)(1), arguing they did not obtain or exert unauthorized control over any of Bea's property, i.e. no theft occurred. As a sub-issue, appellants assert that they could not have aided or abetted a theft that did not occur. Next, the Maxons argue the absence of any evidence to establish that any false statements or representations were made to induce Bea to transfer her property, negating the sufficiency of the evidence to support the theft by deception convictions under K.S.A. 2002 Supp. 21-3701(a)(2). Again, as a sub-issue, appellants assert that the aiding or abetting instruction could only have been applicable to Jodi, if at all, but that no evidence exists that she advised, counseled, procured, or encouraged Christopher to commit a crime. The third issue presented challenges the sufficiency of the evidence to support the convictions for mistreatment of a dependent adult, asserting that Bea was not a "dependent adult" in 1999 and that appellants did not mistreat her. Included in the third issue is a multiple acts argument. Finally, appellants challenge the constitutionality of Christopher's upward dispositional departure sentence, as well as the existence of substantial and competent evidence of a substantial and compelling reason to depart. We will take the liberty of addressing the issues in a different order than that presented.
In deciding appellants' challenge to the sufficiency of the evidence to support their convictions for mistreatment of a dependent adult, we review all of the evidence, viewed in the light most favorable to the prosecution, to determine if a rational jury could have found the defendants guilty beyond a reasonable doubt. See State v. Zabrinas, 271 Kan. 422, 441-42, 24 P.3d 77 (2001). We are to refrain from the temptation to weigh the evidence or pass on the credibility of the witnesses. State v. Sanders, 272 Kan. 445, 455, 33 P.3d 596 (2001).
The statute creating this crime is K.S.A. 21-3437, the relevant portions of which are:
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