State v. Warren, 16721
| Decision Date | 31 October 1990 |
| Docket Number | No. 16721,16721 |
| Citation | 462 N.W.2d 195 |
| Parties | STATE of South Dakota, Plaintiff and Appellee, v. Myria WARREN, Defendant and Appellant. |
| Court | South Dakota Supreme Court |
Sherri Sundem Wald, Asst. Atty. Gen., Pierre, (Roger A. Tellinghuisen, Atty. Gen., Pierre, on the brief), for plaintiff and appellee.
Jeffrey L. Viken of Finch, Viken, Viken & Pechota Rapid City, for defendant and appellant.
Myria Warren appeals her conviction of three counts, each, of grand theft by transfer and grand theft by exploitation. We affirm in part and reverse in part.
From 1917 until 1972, John Edward Hess operated a sheep ranch in Harding County, South Dakota. In 1972, he ceased his ranching operation. Shortly thereafter, he moved to Belle Fourche, South Dakota. In 1976, he sold his 1864-acre ranch for $70 per acre.
Warren had been operating an elderly care business in her home in Belle Fourche since 1973. She generally provided room and board to elderly people who were unable to live alone. She first met Hess in 1984. At that meeting, she informed him she would provide him with room and board for $400 a month. Hess subsequently moved into Warren's home on June 8, 1984. At the time, he was eighty-nine years old, wearing a hearing aid, had gradually deteriorating eyesight, and ultimately became dependent on a walker and wheelchair for mobility. His overall general health was poor.
Hess had only two living relatives, nephews Kenneth Hammer and A.C. Grudum. Since 1983, Hammer and his family had visited Hess at least once and sometimes twice a year. After Hess moved into the Warren home, they would call at least once a month checking on his health, knowing that it was deteriorating. Grudum had never met his uncle until June, 1987.
In March, 1986, Hess began having problems with his heart. He was taken to the Ft. Meade Veterans Hospital near Sturgis, South Dakota, where he was examined. Due to his heart condition, he was flown to a veterans hospital in Denver, Colorado, where a pacemaker was implanted. Warren testified that she accompanied Hess to Denver at his request. He had allegedly offered to pay her $500 to cover her expenses. After his discharge from the Denver hospital, he spent one night in the Ft. Meade Hospital for observation and then returned to Warren's home.
Hammer and his wife testified at trial to events surrounding their contacts with Hess and various conversations they had with Warren. Hammer testified that between June and August, 1986, he and his wife, on extension phones, called Warren to inquire into his recovery from the pacemaker surgery. Hammer testified that Warren informed them that she had started levying extra monthly charges of $500 against Hess "for bedwetting." Mrs. Hammer testified that during this telephone conversation, Warren laughed and stated that she figured out how to make Hess do what she wants, "just make him pay more money." Hammer testified that he called Warren in February, 1988, again inquiring about his uncle, and Warren informed him that Hess was angry with her for charging him another $1,000 for bedwetting. 1 Hess' attorney, Donn Bennett, confirmed similar conversations with Warren. Mrs. Hammer testified that during a visit in April, 1986, Warren informed her that Hess protested every time she asked him to sign his rent check because it had gone up from $400 to $1,000 a month. She also recalls Warren stating that, "I figure I just as well get all I can out of him because its all going for taxes anyway." Additionally, she recalls Warren stating that she would like to get Hess to pay off the mortgage on her house. Mrs. Hammer testified that during a visit in September, 1987, Warren informed her that she had brought three of Hess' matured certificates of deposit (CD's) home from the bank to get Hess' signature in order to cash them. 2 Warren testified that she could not take him to the bank every time CD's became due.
Regarding Hess' health, Mrs. Hammer testified that during a visit in April, 1988, when she and her husband had arrived at Warren's home, Hess was lying in bed. They noticed that he was lying on his back, his lips were badly swollen, his breathing irregular, and one foot was on the floor. Mrs. Hammer testified that he was filthy and wet, as was his bed. Warren informed them that nothing was wrong with him, that he was just sleeping. They attempted to awaken him to no avail and finally called an ambulance. He was taken to the Ft. Meade hospital, where it was discovered that he had a urinary infection which had become life-threatening.
Dr. Fredric Birch, a physician at the Ft. Meade hospital testified to events surrounding the history of Hess' health and medical attention he received at Ft. Meade. Dr. Birch testified that he first had contact with Hess on December 21, 1987, concerning episodes of apnea, i.e., absence of breathing, in addition to some heart problems. 3 Because of these problems, he was admitted to the intensive care unit. 4 Dr. Birch testified that communication with Hess was rather difficult. A person had to "shout directly into his ear" or "write on a piece of paper in large letters" for him to read in order to communicate. He was discharged January 5, 1988. Dr. Birch also testified that Hess was readmitted on April 11, 1988, due to a life-threatening urinary infection.
Hess' other nephew, Grudum, testified to events surrounding his visit with his uncle in June, 1987. During a conversation with Warren, she indicated to Grudum that she charged Hess $900 a month for rent and other boarders only $350-$450 per month, indicating the reason for the difference was that "he can afford it." Grudum visited with Hess who made him aware that his checking account at that time was in excess of $35,000 and that his income for the previous year was over $42,000. Just prior to his leaving the Warren home, Grudum testified that Warren stated, "well, its too damn bad you have to wait until somebody dies before you can get their money, I'm going to get Ed to pay my $23,000 mortgage."
On April 12, 1988, after Hess had been hospitalized for the urinary infection previously mentioned, Hammer went back to Warren's house with a representative of Hess' lawyer to recover Hess' property. Hammer asked Warren if he did in fact have all of Hess' property, to which she replied "Yes." The following day, Hammer went to the bank to inventory and audit Hess' safety deposit box. It was discovered that three CD's were missing: one for $20,000, one for $10,000, and one for $5,000, all listed by the bank as owned by Hess. During the next month, Hammer carefully went through all of his uncle's papers. He discovered that all the checks written for the months of January and February of 1988 were missing. He eventually discovered, with the assistance of the bank, that two checks issued during those months were made payable to Warren: check # 808 for $24,000 and check # 810 for $2,000. Hammer contacted Hess' attorney, Donn Bennett, informing him of this discovery. Bennett contacted Warren, asking her if she knew the whereabouts of the missing checks and CD's. She informed him that she did not have the checks but she did have the CD's. She refused to turn them over to Bennett before consulting with her attorney.
On September 14, 1988, Warren was indicted on three felony counts of grand theft and ten misdemeanor counts of operating a health care facility without a license. On November 23, 1988, she filed a motion to quash the indictment. On December 21, 1988, State filed a dismissal of the indictment. On that same day, the grand jury reindicted Warren, adding eight felony counts of forgery, ten felony counts of grand theft by transfer of another's property, ten felony counts of grand theft by exploitation of a disabled adult (the ten felony counts of grand theft by exploitation of a disabled adult were all plead in the alternative to grand theft by transfer of another's property and were based on the same underlying facts), and ten misdemeanor counts of operating a health care facility without a license.
Prior to trial, several counts were dismissed by the trial court on ex post facto grounds. The ten counts of operating a health care facility without a license were severed for trial and ultimately dismissed by the State after the felony convictions were rendered. Warren was found guilty on three counts of grand theft by transfer, specifically Counts X, XI, and XII, and three counts of grand theft by exploitation of a disabled adult, Counts XVI-A, XVII-A, and XVIII-A. She was found not guilty of the other charges including the forgery counts. Warren appeals.
WHETHER HESS WAS COMPETENT TO TESTIFY AT TRIAL.
Generally, every person is competent to be a witness if they have personal knowledge of the matter at hand, have sufficient understanding to receive, remember, narrate impressions and are sensible to the obligation of an oath. State v. Lufkins, 381 N.W.2d 263 (S.D.1986). See also SDCL 19-14-1 and -2. "The determination of the witness' competency is within the discretionary power of the trial judge and may be reversed only upon a showing of abuse of discretion." Lufkins, supra at 266; State v. Phipps, 318 N.W.2d 128 (S.D.1982).
In Lufkins, the trial court held that the witness was incompetent to testify. We concluded that there had been no showing of an abuse of discretion. It was determined that the witness had lost his personal knowledge of the events in question and lacked the understanding to receive, remember, or narrate any remaining impressions. 5 That is not the situation before us.
Hess' testimony clearly exhibited that he had personal knowledge of the matter before the trial court. His difficulties were not attributed to his inability to receive, remember and...
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