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State v. Davis

Supreme Court of Vermont

March 23, 2018

State of Vermont
v.
Jeffrey Davis

          On Appeal from Superior Court, Chittenden Unit, Criminal Division A. Gregory Rainville, J.

          James Pepper, Deputy State's Attorney, Montpelier, for Plaintiff-Appellee.

          Matthew Valerio, Defender General, and Joshua O'Hara, Appellate Defender, Montpelier, for Defendant-Appellant.

          PRESENT: Reiber, C.J., Robinson, Eaton and Carroll, JJ., and Davenport, Supr. J. (Ret.), Specially Assigned.

          CARROLL, J.

         ¶ 1. Defendant Jeffrey Davis appeals his conviction for financial exploitation of a vulnerable adult under 13 V.S.A. § 1380(a) following a jury trial. He raises four arguments on appeal. His first two arguments arise from the trial court's denial of his motion for a judgment of acquittal and the sufficiency of the State's evidence. He also argues that the court's instructions to the jury were erroneous, and that the court erroneously permitted the victim's guardian, rather than the victim, to testify during sentencing. We affirm.

         ¶ 2. In 1995, defendant's mother and father had an attorney draft a conditional power of attorney document. The terms of the power of attorney were general, granting the attorney-in-fact "full power to act for [defendant's mother and in defendant's mother's] name in all matters and to do all things which [defendant's mother] could do if personally present." It granted the attorney-in-fact the authority to deposit, withdraw, and invest defendant's mother's money, and to sign checks and drafts on her behalf. The power of attorney named defendant's father as primary attorney-in-fact and listed conditions that had to be met before defendant's father could assume this role. The power of attorney named defendant as secondary attorney-in-fact, and, again, the document required that conditions be met before defendant could assume his role as his mother's attorney-in-fact. Specifically, defendant was required to attach one of three documents to the power of attorney: a statement signed by defendant's father to the effect that he was unable or unwilling to serve as defendant's mother's attorney-in-fact, a statement signed by a medical doctor stating that defendant's father was unable or unwilling to serve as attorney-in-fact, or a copy of defendant's father's death certificate. There was no evidence presented showing that any of these conditions precedent were ever met.

         ¶ 3. Defendant's father died in 2006. Upon his death, defendant's mother moved into an assisted living facility, eventually settling at an elder living facility in Colchester. Until 2014, she controlled her own finances. Her monthly income from Social Security and her husband's pension were directly deposited into a checking account jointly owned with defendant. She paid her rent and other expenses from this checking account.

         ¶ 4. In early 2014, defendant's mother suffered a fall. An employee of the elder living facility testified that, at this point, defendant became more involved in his mother's care. Employees of the elder living facility and defendant's mother's doctor testified that around this time defendant began to represent himself as his mother's attorney-in-fact. It is undisputed that at this time defendant began controlling his mother's finances, including taking her checkbook and credit card and redirecting her mail for delivery at his address.

         ¶ 5. Within a few months, staff at the elder living facility began to notice anomalies in the payment of defendant's mother's rent. Until March 2014, the rent was withdrawn directly from the joint account shared by defendant and his mother. Beginning in April, the rent could not be withdrawn because the account held insufficient funds. In August, defendant wrote a check on the joint account for payment of all overdue rent. In September, the rent went unpaid again until December. At that time, defendant wrote a check from the joint account for the unpaid rent. This check was returned for insufficient funds. The rent subsequently went unpaid again through March of 2015. Two staff members at the elder living facility separately confronted defendant about the validity of the power of attorney. Staff later initiated eviction proceedings and, in December 2014, made a report to Adult Protective Services.

         ¶ 6. Adult Protective Services began an investigation. The investigator testified that during the course of his investigation he told defendant that the investigation would cease if he paid the overdue rent. Defendant gave the elder living facility a check for all back rent, which was, like defendant's prior rent check, returned for insufficient funds. Eventually, Adult Protective Services petitioned the court to appoint a guardian to take control of defendant's mother's finances. The court granted the petition and appointed a temporary guardian, who then became defendant's mother's attorney-in-fact. In April 2015, the temporary guardian was named as defendant's mother's permanent guardian.

         ¶ 7. Adult Protective Services also investigated defendant's mother's financial records. These records were admitted in full during defendant's trial. They showed that at the end of January 2014, the last month during which defendant's mother paid her expenses herself, the joint checking account shared with defendant had a balance of over twelve thousand dollars. The January transaction history for the account showed deposits for defendant's mother's Social Security and defendant's father's pension. There were withdrawals for rent, groceries, healthcare, and other miscellaneous daily living expenses. The ending balance in February was just under two thousand dollars. The February transaction history showed the same deposits as those in January, as well as many of the same expenditures. The transaction history also showed a substantial payment to a car dealership made via cashier's check. At the end of March, the account balance was less than one dollar. According to the account transaction history, defendant made two large deposits in March and July 2014, in the amount of three thousand dollars and just over six thousand dollars. The only other deposits were from defendant's mother's Social Security and defendant's father's pension. The account balance was negative at the end of August 2014, and the account was eventually closed in March 2015. The transaction history showed numerous withdrawals and charges inconsistent with the pattern of transactions prior to defendant taking control of the account in February 2014.

         ¶ 8. While the Adult Protective Services investigation was ongoing, in January 2015, defendant contacted an attorney and informed the attorney that he was being told that he could not speak on his mother's behalf unless he was her attorney-in-fact. The attorney reviewed the 1995 power of attorney executed by defendant's mother and then drafted a new document for defendant that, if signed by his mother, would render defendant her attorney-in-fact. Defendant's mother signed this document before a notary on January 22, 2015. At the urging of the Adult Protection Services investigator, defendant's mother signed another document on February 20, 2015, which revoked any power of attorney and authority to act previously conferred to defendant.

         ¶ 9. Adult Protective Services eventually referred the matter to local police. In an information dated March 7, 2016, defendant was charged with exploiting a vulnerable adult under 13 V.S.A. § 1380(a). In relevant part, this statute provides that: "No person shall willfully use, withhold, transfer, or dispose of funds or property of a vulnerable adult, without or in excess of legal authority, for wrongful profit or advantage." Id. The information specifically charged defendant with being "a person who willfully withheld funds of a vulnerable adult, to wit, [defendant's mother], by not paying her rent at [the elder living facility], without legal authority, for wrongful profit or advantage, and such money, funds, or property exceed 500 dollars in value." A jury convicted defendant after a two-day trial.

         ¶ 10. The trial court ordered a presentence investigation report following delivery of the jury's verdict. The initial report did not include a victim-impact statement from defendant's mother; instead, defendant's mother's guardian submitted a statement on her behalf. Defendant moved to exclude the guardian's statement from the presentence investigation report and to bar her from testifying at the sentencing hearing. Defendant requested that instead the court permit his mother to testify on her own behalf. The State opposed this motion. The court denied defendant's motion and permitted the guardian ...


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