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 ...