In Franke v. State, 2016 Fla. App. LEXIS 1049 (Fla. 4th DCA 2016), the Fourth DCA held that Appellant was entitled to be acquitted of exploitation of the elderly under Section 825.103, Fla. Stat. because the State failed to present evidence inconsistent with Appellant’s hypothesis of innocence, which was that she did not obtain or endeavor to obtain the alleged victim’s property. In the subject case, Cynthia Franke (“Appellant”) appealed her conviction of financial exploitation of the elderly. Appellant and the alleged victim, Mary Teris, had been friends for thirty years. They met when Teris became a client of the investment firm where Appellant worked as a stockbroker. Teris was at the office daily and was very involved with her accounts. Over the years, Appellant and Teris became very close; Appellant was always there for Teris, driving her where she needed to go and helping her with her two sons. In 1996, Teris prepared a special needs trust for her two sons, a revocable trust, a power of attorney, and a will with her estate planning attorney. In 2008, she brought the trust to Appellant and told her she wanted to make changes to it. The attorney who prepared the trust for Teris was out of town so Teris asked Appellant about an attorney she had seen at the investment firm, whom Teris then met with and made changes to the trust.
At issue were changes made in 2009, when Teris changed the trustee of the trust from her sister to Appellant and made Appellant a residuary beneficiary of the trust. According to the attorney at the investment firm, Teris made the changes because her sisters were elderly and would be unable to manage her property, if something happened to her. Teris wanted someone she could trust to manage her assets and take care of her sons which is why she chose Appellant. She named Appellant as residuary beneficiary because her sons were already taken care of via the special needs trust, her sisters did not need her money, and Appellant had been there for her in times of need. When Appellant learned that Teris had made her a trustee and beneficiary, she was unhappy because she knew there would be a conflict of interest with her work so she told her boss, who informed her that she could not be trustee, but could remain a beneficiary. Teris then amended the trust to make her accountant a co-trustee, along with herself. In 2010, Appellant was arrested and charged with exploitation of the elderly, under Section 825.103, Fla. Stat. Appellant moved for judgment of acquittal at the end of the State’s case, arguing the State did not prove there was any “endeavoring to obtain” on her part. The trial court denied the motion, Appellant was convicted, and appealed.
On appeal, the Fourth DCA noted that where the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence. Everett v. State, 831 So. 2d 738, 741 (Fla. 4th DCA 2002). A trial court should grant a motion for judgment of acquittal in a circumstantial evidence case, if the State fails to present evidence from which the jury can exclude every reasonable hypothesis except that of guilt.
The State’s case against Appellant was based on two theories under Section 825.103, Fla. Stat. The first was that Appellant was in a position of trust and confidence with the victim, obtained or endeavored to obtain funds belonging to the victim with the intent to deprive the victim of those funds, and used deception or intimidation to obtain the funds. The second theory required the State to prove that Appellant obtained or endeavored to obtain funds belonging to Teris with the intent to deprive Teris of those funds, and that Appellant knew or should have known that Teris lacked the capacity to consent. Both theories relied on the common element that Appellant obtained or endeavored to obtain Teris’s property. The Court noted that as defined under applicable law, Section 825.101, Fla. Stat., “endeavor” means to “attempt or try” and that “obtain” means any manner of “taking or exercising control over property or making any use, disposition, or transfer of property.” The Court found this “endeavored to obtain” element to be lacking under both of the State’s theories.
Under the first theory, the State argued that Appellant endeavored to deceptively obtain Teris’s property by having herself named as the residuary beneficiary when she “guided” Teris to the attorney at her work, and was at the office, but not in the room, when some of the amendments were executed. The Court found this evidence was not inconsistent with Appellant’s theory that being named beneficiary was an unsolicited gift. Appellant and Teris had been friends for thirty years. Under the second theory, the State argued that Appellant endeavored to obtain Teris’s property knowing that Teris lacked the capacity to consent. Although Teris may have lacked capacity, the Court found that this theory failed for the same reason as the first; the evidence was not inconsistent with Appellant’s hypothesis that she did not obtain or endeavor to obtain Teris’s property because Teris named her a beneficiary as an unsolicited gift. Therefore, the Court found that the State failed to present evidence inconsistent with Appellant’s hypothesis of innocence that she did not obtain or endeavor to obtain Teris’s property. Accordingly, the Court reversed the trial court’s denial of Appellant’s motion for judgment of acquittal and remand for discharge.
The Court also went beyond the necessary issues to address, noted above, to make a point that Appellant would not have even received any of Teris’s property until after Teris passed away and that even then, Appellant would receive something only if something remained in the trust. This is noteworthy because it does not seem that obtaining the future expectancy of property under a will or trust falls under the purview of the statute at issue. To this point, the Court cited prior cases addressing Section 825.103, Fla. Stat., noting that they all concerned a present transfer of property, not a future expectancy in a will or trust.
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