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Molina v. State

Court of Special Appeals of Maryland

December 23, 2019

ANA BETI MOLINA
v.
STATE OF MARYLAND JAVIER MOLINA
v.
STATE OF MARYLAND

          Circuit Court for Montgomery County Case Nos. 131134C & 131135

          Kehoe, Leahy, Adkins, Sally D., (Senior Judge, Specially Assigned), JJ.

          OPINION

          LEAHY, J.

         TABLE OF CONTENTS

         BACKGROUND

         The Indictments ………………………………………………………………………… 4

         Pre-Trial Motions ………………………………………………………………………. 5

         Trial ……………………………………………………………………………………... 6

         A. The Molinas …………………………………………………………………... 6

         B. Gustave Shapiro ………………………………………………………………..6

         C. Ana Assumes the Care of Gustave ……………………………………………. 9

         D. Dementia and Other Diagnoses ……………………………………………… 15

         E. A Second APS Investigation in 2015 …………………………………………17

         F. The House on Wilton Oaks……………………………………………………21

         G. The Third APS Investigation in 2016………………………………………… 25

         H. End-Stage Dementia ………………………………………………………… 32

         I. Additional Financial Evidence……………………………………………….. 34

         J. Motions for Judgment of Acquittal ………………………………………….. 40

         K. The Defense…………………………………………………………… ……. 41

         L. Renewed Motions for Judgment …………………………………………….. 42

         Verdict and Sentencing ……………………………………………………………….. 44

         DISCUSSION

         I. Evidence of Gambling and the Molinas' Financial Status …………………… 47

A. Motions in Limine ……………………………………………………….. 47
B. Parties' Contentions on Appeal ..………………………………………… 49
C. Gambling and Finances: Special Circumstances ………………………… 50

         II. Motion to Sever ……………………………………………………………… 60

         A. Pre-Trial Ruling ………………………………………………………….. 62

         B. Analysis ………………………………………………………………….. 63

         III. Lay Opinion Evidence……………………………………………………….. 67

A. Motion in Limine ………………………………………………………… 68
B. Testimony on Duty of Fiduciary ………………………………………… 69
C. Testimony on Gustave's Capacity ……………………………………….. 70

         IV. Accomplice Liability ………………………………………………………… 72

         V. Sufficiency of the Evidence Against Ana ……………………………………. 78

         VI. Sufficiency of the Evidence Against Javier …………………………………. 88

A. Financial Exploitation …………………………………………………… 88
B. Theft Scheme …………………………………………………………….. 91
C. Conspiracy ……………………………………………………………….. 96

         VII. The State's Rebuttal Closing Argument ……………………………………. 101

         Gustave Shapiro, a widowed nonagenarian, depended on others for his transportation and daily care-he was a vulnerable adult.[1] In 2016, Montgomery County Adult Protective Services ("APS") removed Gustave from the house in which he was residing with Ana Beti Molina and her husband, Javier Molina (the "Molinas" or "Appellants"). He died from severe dementia just one week later, at the age of 99.

         A grand jury in Montgomery County indicted the Molinas on several charges relating to their financial gains from Gustave, including theft scheme, financial exploitation of a vulnerable adult, and financial exploitation of a person over 68 years old. The couple stood trial, as co-defendants, before a jury in the Circuit Court for Montgomery County.

         At trial, the evidence revealed that Ana was hired in 2012 to clean Gustave's house after his wife passed away. Within months, Gustave became estranged from his only living son, Dana Shapiro, and Ana gained control of Gustave's medical care and finances. Over defense objections, the State introduced evidence that the Molinas declared income between $26, 000 and $68, 000 from 2012 to 2016, along with evidence that the Molinas, primarily Javier, suffered gambling losses of more than $200, 000 from 2011 to 2016. Also, between 2012 and 2016, $450, 000 was withdrawn from Gustave's bank accounts to purchase a new vehicle for the Molinas and a new house in which the Molinas lived with Gustave. Neither the house nor the car had accommodations for Gustave, who was wheelchair-bound. More than $60, 000 was withdrawn to pay college tuition for the Molinas' daughter, and another $60, 000 was withdrawn from ATMs near two casinos where Javier gambled. The jury found each of the Molinas guilty of theft scheme, two counts of financial exploitation, and conspiracy to commit these crimes. Separately, the jury found Ana guilty of two counts of misappropriation by a fiduciary.

         Ana and Javier appealed and each presented four issues for our review, which we have consolidated, reordered, and rephrased as follows:

I. Did the circuit court err or abuse its discretion by permitting evidence of the Molinas' financial circumstances and Javier's gambling?
II. Did the circuit court err by denying Ana's motion to sever her trial from Javier's?
III. Did the circuit court err by allowing opinion evidence by one of Gustave's attorneys?
IV. Did the circuit court err in instructing the jury on accomplice liability?
V. Was the evidence sufficient to convict Ana of financial exploitation?
VI. Was the evidence sufficient to convict Javier of financial exploitation, theft scheme, and conspiracy?
VII. Did the circuit court err by permitting impermissible rebuttal argument by the prosecution?

         The statute featured in this case, Maryland Code, Criminal Law Article ("CR"), § 8-801 was enacted by the General Assembly in 2002 to prohibit the financial exploitation of vulnerable adults, and then amended in 2009 to include a prohibition against the financial exploitation of individuals who are at least 68 years old. See SB 646 (2002); HB 559 (2002); SB 304 (2009); HB 583 (2009). As Delegate Kramer, the sponsor of House Bill 583, wrote in 2009, "The financial exploitation of the elderly is a significant problem and perhaps the fastest-growing crime in the nation."[2] Our appellate courts have had few opportunities to consider CR § 8-801; indeed, the sole reported opinion discussing the statute, Tarray v. State, 410 Md. 594 (2009), pre-dates the 2009 amendment and examines only the prohibition against the financial exploitation of vulnerable adults.

         The case before us is the kind that the General Assembly intended to address when it enacted the financial exploitation statutory scheme.[3] As is common for many vulnerable adults, Gustave's cognitive impairment, caused by his worsening dementia and advanced age, prevented him from appreciating the financial abuse at the time. Although the evidence of the Molinas' intent to commit financial exploitation was largely circumstantial, we hold that it was more than sufficient to support the jury's verdicts. Finding no error or abuse of discretion in the trial court's rulings, we affirm the jury's verdicts, but remand Javier's case to the circuit court to vacate one of his two conspiracy convictions.

         BACKGROUND

         The Indictments

         On February 2, 2017, a grand jury sitting in Montgomery County returned indictments against Ana and Javier, respectively. As relevant to this appeal, [4] the first six counts in each indictment were for crimes against Gustave: (1) theft scheme over the value of $100, 000 in violation of Maryland Code (2002, 2012 Repl. Vol., 2017 Supp.), CR § 7-104; (2) conspiracy to commit theft scheme over the value of $100, 000; (3) financial exploitation, value over $100, 000, of an adult over 68 in violation of CR § 8-801(b)(2); (4) conspiracy to exploit a vulnerable adult: value over $100, 000; (5) financial exploitation, value over $100, 000, of a vulnerable adult in violation of CR § 8-801(b)(1); and (6) conspiracy to exploit a vulnerable adult: value over $100, 000.[5] Ana was also charged with two counts of misappropriation by a fiduciary.

         Pre-Trial Motions

         Four pre-trial motions are relevant to this appeal. They are treated fully in the discussion but outlined here for context. First, on April 28, 2017, the court granted a motion by the State, over the defendants' objections, to consolidate the cases against Ana and Javier.[6] The court revisited this issue later in response to Ana's motion to sever the cases and reaffirmed its earlier ruling.

         The Molinas, through two motions in limine, moved to exclude evidence of their gambling and financial status. They urged the court to bar the evidence because it was irrelevant and unduly prejudicial. The State responded that the gambling records were relevant both to show motive and to show where the money went-a fundamental element of the theft charges. The circuit court denied the Molinas' motions to suppress the gambling evidence, granted Javier a continuing objection on the issue, and ultimately allowed the State to introduce evidence of the Molinas' financial circumstances.

         In a fourth pre-trial motion, the State sought to prohibit Elizabeth Goldberg, an attorney, from offering opinion testimony at trial as to Gustave's capacity to execute legal documents. The court denied the State's motion.

         Trial

         The Molinas' trial took place over eight days between November 13 and 27, 2017. The State called 26 witnesses to testify. The following account is derived from the evidence adduced at trial, viewed in the light most favorable to the State.

         A. The Molinas

         Ana and Javier were married with three children. In 2012, their oldest child, Janesse, was 22, and their two minor children were 17 and 14 years old. The Molinas lived in a three-bedroom apartment in Montgomery County from 1996 through 2015. Their rent for that apartment, from 2010 until they moved out, was $484 per month. Javier worked at a car wash that paid him between $20, 000 and $48, 000 per year. He also declared about $43, 000 in income from gambling between 2013 and 2016. Ana cleaned houses for a living, although she did not declare any income on her Maryland tax returns aside from an amount less than $8, 000 earned from gambling between 2014 and 2016. She began working for Gustave in September 2012.

         B. Gustave Shapiro

         Gustave was born in July 1917. He eventually married Ruth, and the couple adopted two sons, Dana and Marvin. Marvin would pre-decease his parents but, before he died, he had a falling out with Gustave that caused Gustave to disavow Marvin. Dana, on the other hand, maintained a relationship with Gustave until September 2012.

         Gustave worked as an electronics engineer for the federal government until his retirement. He owned a house on Munsey Street in Silver Spring where he lived with Ruth. In addition to the retirement income he received in the form of pension and Social Security payments, Gustave owned treasury bonds that reached maturity between April 2012 and June 2013. The income from these treasury bonds brought Gustave's bank account ending in -7829 to a balance of $1.9 million.

         As far back as 2004, Gustave had trouble getting around and required the assistance of a walker. He did not drive or like to take taxis, so Dana drove his parents around on their errands, normally about twice a week. Gustave bought Dana a used sedan that accommodated Gustave's and Ruth's physical disabilities for around $22, 000.

         According to Dana, Gustave was frugal, had a strict budget, and "was adamantly against gambling." Gustave "never had a credit card, never would use a credit card[, ]" and stopped investing in treasury securities after they went paperless because he felt his information and money would be exposed to hackers. From 2004 to 2012, Dana would have to drive Gustave regularly to the bank because Gustave did not have a debit card or use ATMs to withdraw cash. He also paid his bills by check.

         By 2012, Dana began to observe his father experience delusional thinking. For instance, Gustave believed that his dead lawn had been poisoned by his neighbors in retaliation for a derogatory remark Gustave made 25 years earlier. Gustave also struggled to remember Dana's telephone number despite how frequently he had called over the years.

         Between 3:00 and 4:00 a.m. on September 2, 2012, Gustave called Dana because he could not wake Ruth and did not think she was breathing. Gustave said he had not called 911 because he would not have had a way to follow the ambulance to the hospital without Dana. Dana beat the paramedics to his parents' house and found his mother unresponsive by her bed. Doctors were unable to resuscitate Ruth.

         Dana began to see his father daily. According to Dana, his parents had been inseparable, and his father became very lonely and needy after Ruth died. Dana had a preplanned vacation set for two weeks after his mother's passing, so he sought help to care for his dad while he was gone. Dana hired Ana, who came on a recommendation from his brother-in-law, Lloyd Flynn, to clean Gustave's house and look after him. Ana cleaned the homes of Mr. Flynn and Mr. Flynn's mother, and she continued to do so until the early part of 2015. Both Mr. Flynn and his mother paid Ana $200 each time she cleaned.

         Dana, for his part, was "absolutely" satisfied with Ana's work when he returned from his trip-he "thought that she was very good at what she did." According to Dana, Ana was also better than he was at convincing Gustave to do things such as routine "hygiene" and "purchasing a new mattress for the bed which was severely soiled." Dana thought Gustave paid Ana too little and convinced his father to add an extra $20 the first time he paid her.

         Soon after Ana began working for Gustave, Gustave claimed there was a box missing from under his kitchen table and thought either Dana or Ana took it. Gustave brought up the box with Dana when they went to lunch on the day after Thanksgiving. He became "extremely irate and angry" with Dana, accusing him of stealing the box. Gustave demanded that Dana turn over his key to Gustave's house, or else, Gustave would call the police. Dana testified that he didn't know what his father was talking about; regardless, he returned the key, not wanting to make a scene. After that Gustave refused Dana's calls. Dana tried to call his father "[f]or well over a year" and also went by the house "[m]any times," but his father would either ignore his knock or slam the door and not let him in. Ana told Dana that she also had to stop talking to him, or else, Gustave said she would be fired.

         C. Ana Assumes the Care of Gustave 1. Large Banking Transactions Begin in 2013

         After September 2012, with Dana no longer taking Gustave on his errands, Ana took over. The errands involved mainly trips to Gustave's doctors and his banks. Ana would take Gustave to the local branches of Wells Fargo Bank and Capital One Bank about once a month.

         On June 13, 2013, Gustave and Ana opened a checking account and high-yield savings account at Wells Fargo, listing Gustave as the primary account holder and Ana as the secondary account holder. About a month later, Ana opened another checking account and high-yield savings account with Wells Fargo in her own name. Four days later, on July 22, a withdrawal of $9, 900.47 from Gustave's account was deposited into Ana's personal account. Subsequent $300 deposits into Ana's account followed withdrawals from Gustave's account. Then, on August 10, Gustave and Ana went to Capital One with Janesse Molina and drew a cashier's check from Gustave's account in the amount of $26, 977.45 to pay for Janesse's college tuition at New York School of Visual Arts. Gustave withdrew another $37, 242 for college tuition the following year.

         The size of the transactions continued to increase. On September 9, 2013, a withdrawal of $50, 000 from one of Gustave's accounts at Capital One caused Sophia Alhalaseh, an employee at the branch office in Wheaton, to refer Gustave to APS. Ms. Alhalaseh's supervisor instructed her to call APS because Gustave typically transacted only about $5, 000 per month, so the $50, 000 withdrawal marked a significant change in the nature of his transactions. Ms. Alhalaseh had never seen Javier.

         Bank records show that, on the same day, September 9, a cashier's check in the amount of $300, 000 was drawn from a Capital One account held solely by Gustave. The $300, 000 cashier's check was then deposited into an account at Wells Fargo (ending in -9261) held jointly by Ana and Gustave that had been opened three days earlier.

         2. First APS Investigation in 2013

         Julia McGlamary is a social worker with APS who investigates allegations of abuse, neglect, and financial exploitation of vulnerable adults in Montgomery County. On October 11, 2013 she began an investigation into whether Gustave was being financially exploited. When she attempted to conduct a home visit at the Munsey Street address, on October 15, no one answered the door. While still on the doorstep, Ms. McGlamary called Gustave, who told her she could not come inside, he was well taken care of, and he didn't need her services. Two days later, Ms. McGlamary had a second, lengthier phone conversation with Gustave, during which he denied her services again. Gustave explained that he had hired a caregiver, a 45-year-old married woman with three children, to care for him two to four days a week, and that her care included helping with grocery shopping, cleaning the house, and running errands. Gustave also told Ms. McGlamary that seeing his caregiver with her husband and kids made him feel as if he were part of their family.

         Ms. McGlamary spoke with a bank manager at Capital One on October 24. In regard to the transaction that triggered the investigation, Ms. McGlamary explained that she "was informed that money was being transferred in cash withdrawals from a Capital One account to a Wells Fargo account," and that Gustave was the owner of both accounts.

         A few days after the phone call with Capital One, Ms. McGlamary called Ana and scheduled an in-person meeting with Gustave for November 4. At the meeting, Gustave's home was clean and tidy. Gustave appeared to be oriented to person, place, and time. He completed a daily-living assessment during their meeting, scoring a 24 out of 30. Ms. McGlamary explained at trial that a score of 24 indicates that the subject has some difficulty and needs assistance with completing some tasks for daily living. The tasks with which Gustave required assistance were grocery shopping, transportation, housekeeping, taking his medications, and paying some of his bills due to problems he had with use of his hands. Gustave also scored a 14 out of 15 on a brief Mental Status exam that Ms. McGlamary administered. She explained that the score indicated Gustave likely had the capacity to make his own decisions at the moment in time that the test was administered.

         According to Ms. McGlamary, Gustave's demeanor during the meeting was "fluctuat[ing] very quickly between being agitated and very angry and then being very calm." Gustave told Ms. McGlamary that he had a caregiver, Ana, but refused to disclose how much he paid her. He did tell her, however, that he paid the private-school tuition for one of Ana's daughters. Gustave mentioned that he never wanted to leave his home on Munsey Street. He also told Ms. McGlamary that he threw his son out of his house because Dana had been "robbing [him] blind" and there were expensive tools and important documents missing-although, Gustave could not identify what they were.

         After Ms. McGlamary met with Gustave and confirmed the information concerning the two different banks, APS closed the investigation on November 24, 2013.[7]

         3. More Power and Money

         Banking Transactions

         Just three days after APS concluded its investigation, on November 27, 2013, another withdrawal of $50, 000 was made from Gustave's account at Capital One. Although Gustave never had a debit card associated with his accounts, Ana requested one. Then, on December 30, Ruth's name was removed from a Capital One account ending in -7829 and Ana's name was added. Also on December 30, bank records show that the $300, 000 that had been deposited on September 9 into Ana and Gustave's Wells Fargo account ending in -9261 was withdrawn and deposited into a Wells Fargo account held solely in Ana's name. Three days later, Ana and Gustave transferred $1.3 million from the Capital One account ending in -7829 into a new account, opened under both names, ending in -7237.

         In April 2014, Ana was added to several other bank accounts that Gustave owned and she was named as a beneficiary on all of the accounts. Later that September, she was added as a co-lessee on one of Gustave's Capital One safe deposit boxes.

         Powers of Attorney

         In early 2014, Ana and Gustave met with Elizabeth Goldberg, an elder-law attorney. The first meeting took place in a car in front of Ms. Goldberg's home office because Gustave did not want to get out of the car. The second meeting was at the office of Robert Moses, a title attorney. Ms. Goldberg, who testified at trial, explained the purpose of the second meeting:

[Gustave] had wanted to have[] a revocable trust and some other documents prepared to give money to Ms. Molina. And then we were trying to come up with something that would . . . provide for him during his lifetime[.] You know, there was a little bit of confusion on his part[.] You have to have enough money for your own lifetime. So, he was very fixated on having it go to her, but[] Mr. Moses and I were trying to come up with a way to make sure [] that she could work with him but without[-w]e thought maybe he wasn't thinking fully about his own needs. He was still alive. He was going out, needed to be provided for . . . without worrying about the future when he was gone. So we prepared a power of attorney, healthcare power of attorney and a deed. . . .

         After the meeting, Ms. Goldberg prepared a power of attorney and a healthcare power of attorney. Gustave executed both on March 14, 2014, in front of a witness and notary. Ms. Goldberg testified that she "talked to both [Gustave and Ana] about what was entailed . . . to spend money as noted on Mr. Shapiro's behalf." Concerned about whether APS had visited Gustave's house, Ms. Goldberg called APS herself. When APS informed her its investigation was closed, she still "didn't feel completely secure one way or another" and "didn't feel 100% comfortable with it." But she "just made a judgment" to go forward with the transaction because she believed that Gustave "seemed to understand" the nature of the documents. Ms. Goldberg testified at trial that she did not know Javier, and his name was not on any of the documents she prepared.

         A New Toyota Highlander

         On April 28, 2014, a cashier's check for $50, 000 was drawn from one of Gustave's accounts, made payable to Ana Molina. Three days later, the Molinas paid $35, 481.50 (plus a trade-in vehicle valued at $8, 000) to purchase a 2014 Toyota Highlander from Darcars in Montgomery County. The vehicle did not include any modifications to make it handicap accessible. Ana's and Javier's names were on the sales invoice and title for the vehicle; Gustave's name was not on either document. At trial, Mr. Flynn (Dana's brother-in-law) testified that Ana told him that Javier's employer purchased the vehicle for Javier.

         The 2014 Will and Deed to the House

         That September, Gustave met with Daniel Steven, an estate attorney. Mr. Steven had met with Gustave and Ruth previously in 2011, and again in 2012 before Ruth died. Ruth and Gustave hired Mr. Steven to draft a joint revocable trust and 'pour-over wills.'[8]Both of the wills and the trust listed Dana as the beneficiary and were designed to ensure that the couple's assets went to Dana when the surviving spouse died. The wills were never executed.

         When Mr. Steven met with Gustave again on September 3, 2014, Ana accompanied Gustave. On a video recording, which was played for the jury at the Molinas' trial, Gustave can be seen executing the will. The 2014 will designated Ana as the personal representative of Gustave's estate, gave Ana all Gustave's personal property, and bequeathed to Ana the residuary estate. The will also set out explicitly, "The omission of my child, Dana Shapiro, from the provisions of this Will is intentional on my part and is done with my full knowledge." In addition to the will, Mr. Steven drafted, and Gustave executed, a new deed on the Munsey Street property. For no consideration, the deed granted Ana the property in fee simple subject to a life estate in Gustave.

         D. Dementia and Other Diagnoses

         All this time, Ana continued to take Gustave to his various appointments with doctors and specialists at Kaiser Permanente ("Kaiser"). On September 23, 2014, she brought Gustave to a follow-up appointment with the cardiology department. Dr. Joseph Joson diagnosed Gustave with congestive heart failure, cardiomyopathy, history of atrial fibrillation, a failure to thrive (based on 13-pound weight loss), hypotension, bradycardia (due to too much heart medication), and an enlarged prostate. He recommended palliative care for Gustave.

         At a follow-up appointment three days later, Gustave's primary-care provider, Dr. Adrian Hurley, discussed the possibility of moving Gustave to an assisted-living facility but Gustave did not want to go. Dr. Hurley's notes reflect that Gustave was alert and oriented that day. Still, Dr. Hurley referred Gustave to Dr. Andrew Dutka, a neurologist with Kaiser, because Gustave had abnormal thought processes and relayed non-sequiturs during appointments.

         Accordingly, Dr. Dutka saw Gustave for an office visit on September 29, 2014- three weeks after Gustave signed the will in Mr. Steven's office. Gustave was not able to say why he was seeing a neurologist. Although Gustave knew what month it was and that he was in a doctor's office, he did not know which doctor's office or the year. Gustave also misstated his age, and Ana had to correct him. Dr. Dutka noted that Gustave couldn't remember a neck surgery he'd had and also repeated the same story several times.

         Dr. Dutka found notes in Gustave's file indicating that he had seen a neurologist in 2006 because he was suffering from memory loss and gait disturbance. The file also contained an MRI report that showed atrophy and white matter in Gustave's brain, which was consistent with dementia without necessarily indicating the presence of the disease.

         Gustave could not "start gaits" or "get his feet to move off the floor" without assistance. This led Dr. Dutka to believe that Gustave had gait apraxia, which he described at trial as a brain disorder that affects a person's ability to coordinate movement or push his or her foot off the floor.

         Dr. Dutka diagnosed Gustave with mild senile dementia, which he described as "chronic or evolving over months rather than a sudden loss of cognitive ability" in someone who is over 65 and still has many of his faculties. When asked which day-to-day activities are affected by that diagnosis, Dr. Dutka explained: "Generally, those [] activities [t]hat are called instrumental activities of daily living[, ] which include things like managing finances, taking care of appointments, [] stocking the refrigerator and doing other things around the home." Dr. Dutka characterized the condition as mild, however, due to "the description of [Gustave] being able to read and dress himself and shower without assistance[, ] indicating that his basic activities of daily living were intact."

         E. A Second APS Investigation in 2015

         Following Gustave's dementia diagnosis, Ana continued driving him to his doctors' appointments and to do his banking. During one trip to the bank, on July 3, 2015, Ana pushed Gustave in his wheelchair into a Wells Fargo branch and presented a withdrawal slip for $100, 000. Mohammed Aiyedogbon was working as a branch manager of the Wells Fargo that day and noticed that Gustave wasn't saying much and "could barely [] hold onto the pen [to] write," so Ana filled out the slip for him. According to Mr. Aiyedogbon, tellers presented with these scenarios are trained to try communicating with the customer rather than the caregiver. Mr. Aiyedogbon tried communicating directly with Gustave "to get a good understanding of if he knew what was being requested." But Mr. Aiyedogbon perceived that Gustave "seemed quite unsure." Ana was asking the questions and making the demands, which prompted Mr. Aiyedogbon to sit them down to inquire further.

         According to Mr. Aiyedogbon's recollection of the conversation that followed, the purpose of the withdrawal was to move funds over to Ana. Gustave told Mr. Aiyedogbon that he was purchasing a property for Ana and her kids that would cost him about $400, 000. Although Gustave said his son was his next of kin, Gustave said their relationship wasn't in a good place. It soon became clear to Mr. Aiyedogbon that Gustave "wasn't quite sure what was going on," so Mr. Aiyedogbon consulted with his manager, and they determined to contact the elder-abuse line. The elder-abuse line instructed them to call the police.

         Montgomery County police arrived and interviewed Ana and Gustave separately. Officer Jamie Rosner[9] interviewed Gustave and observed that he "was able to carry on a conversation for some amount of time but would often seem confused and would be unclear in his responses. He would respond to questions with conflicting answers and things like that." Gustave said the $100, 000 he sought to withdraw was to supplement other funds he had already given Ana to purchase a house located in Silver Spring that had a listing price of $399, 000. According to Gustave, Ana had driven him by the house three days prior, but he had not seen the inside of the house he was purchasing and would not be able to see it until he purchased it. Officer Rosner referred the case to a detective and to APS, and Ana and Gustave left without completing the $100, 000 withdrawal.

         Erin Howard, an investigator with APS, responded to the referral from Officer Rosner and Mr. Aiyedogbon. On July 13, ten days after the incident at the bank, Ms. Howard went to Gustave's house on Munsey Street. Ana answered the door, identified herself as Gustave's friend, and let Ms. Howard inside. Ms. Howard then had a conversation with Ana and Gustave, [10] in which she spoke primarily to Ana, but Gustave would also chime in. Gustave told Ms. Howard that he was in the process of buying a house so that he and Ana's family could live together. Ana then explained that Gustave's house on Munsey Street had lead paint and asbestos, and that they wanted to get him a place that was more accessible. She also said that they planned to get Gustave a house with fewer steps and that they would install a chair lift. Although Ana told Ms. Howard that Gustave could walk independently, Ms. Howard did not see him do so herself.

         Two days later, on July 15, Ms. Howard returned to the house on Munsey Street to speak with Gustave again. Ms. Howard determined that Gustave was a vulnerable adult because he needed assistance with medication reminders, bathing, dressing, grocery shopping, light chores, transportation, and paying bills. Gustave also had difficulty writing. He could eat independently, transfer chairs, brush his teeth, walk independently, prepare a light meal, use the telephone, use the bathroom, and plan and make decisions. Gustave scored a three out of six on 'the clock test.'[11] Ms. Howard testified that a score of three indicates moderate dementia. But also related that Gustave only scored a seven out of 15 on a structured evaluation to assess his cognitive impairment. Ms. Howard followed up with some of Gustave's doctors, and members of the office staff left her with the impression that, based on Gustave's medical records, she could close the APS investigation. At trial, however, she testified that her view of the case would have been different if Gustave's doctors had provided her accurate information about Gustave's diagnosis.

          Bank records reflect that on July 17, 2015, two days after Ms. Howard's second visit with Gustave, Ana's status on two of Gustave's Wells Fargo accounts was changed from beneficiary to POA/POD.[12]

         In sum, after knowing Gustave for little more than two years, Ana's name, either as joint owner, beneficiary, or POA/POD, was on at least seven of Gustave's separate checking and savings accounts at Wells Fargo and Capital One. Most of these accounts had been opened between mid-2013 and early 2014. Several large transactions, such as the transfer of $1.3 million and multiple $300, 000 withdrawals and deposits, took place between the various accounts associated with Gustave and Ana, including the Wells Fargo account Ana opened in her own name in July 2013. In addition to taking the reins on Gustave's bank accounts, by the summer of 2015, Ana was added as a co-lessee on his safe deposit box at Capital One; granted power of attorney and healthcare power of attorney; made the sole beneficiary of his will; and deeded his Munsey Street property in fee simple subject to a life estate in Gustave. Moreover, Ana was listed, along with Javier, as titleholder to the $43, 000 Toyota Highlander purchased primarily with Gustave's money. As we detail next, Ana and Javier were listed on the contract and deed for the Wilton Oaks property, also purchased with Gustave's money.

         F. The House on Wilton Oaks 1. The Purchase of a Non-Accessible House

         Colleen Connor, a real estate agent, received a referral to help the Molinas purchase a house they found in Silver Spring. She testified at trial that she met with both Ana and Javier about purchasing the house, an older split-level. Ms. Connor explained that "there would have to be[] renovations made to make [the house] handicap accessible" because, as a split-level, you'd need to take stairs to go to the main level or the lower level, and there were also "a lot of stairs from the deck all the way down."

         The first time Ms. Connor showed Ana the house, a least a few members of Ana's family were with her. The Molinas "talked a lot about there needing to be renovations made. They talked about having to extend the driveway. . . . [I]t seemed to be very, very important to them that that be done." Ana "mentioned a chair [] lift would be put in, and it would be sort of no problem[.]" Because of how quickly things were moving, Ms. Connor asked Ana how they would finance the purchase, to which Ana replied that "the man that [] she takes care of was going [] to purchase the property for her." Ms. Connor noted that, although he was present for the conversations, "Mr. Molina didn't do much talking at all[.]"

         When Gustave eventually visited the property at Wilton Oaks, the Molinas drove him there. Ms. Connor, who showed them the property that day, later described the process of getting Gustave into the house as "tedious." She felt a general feeling of unease. But, she said, Ana was strong and helped Gustave up the stairs. Though Ms. Connor remembered Ana pointing out the rooms to Gustave, she noticed that Gustave didn't show any real interest in the house and, instead, kept asking Ms. Connor questions about other, unrelated things. Gustave never viewed the lower level because, Ms. Connor said, it was difficult enough to get him up the stairs once.

         On July 8, 2015, the Molinas and Gustave made an offer of $390, 000 on the property at 13013 Wilton Oaks Drive in Silver Spring. Ana liked some of the furniture in the house, so they agreed to purchase that as well. Bank records show a deposit on the property in the form of a $40, 000 cashier's check drawn from one of Gustave's accounts at Wells Fargo and made payable to Flynn Title.

         Ms. Connor attended the closing along with Ana, Javier, and Gustave on August 18, 2015. The contract to purchase the property listed the purchasers as Ana, Javier, and Gustave. The deed listed Gustave, Javier, and Ana, with Gustave as the life tenant and the Molinas as remaindermen.[13] They paid cash for the property. A wire transfer of $298, 937.86 was debited from the Wells Fargo account that Ana owned solely-the same account into which she deposited $300, 000 in December 2013, following a $300, 000 withdrawal from Gustave's Wells Fargo account ending in -9261. Gustave's bank records also reflect a separate wire transfer for $60, 000 to cover costs at closing, bringing the total funds withdrawn for the purchase of the house, and furniture, to $398, 937. The Molinas soon moved into the house on Wilton Oaks Drive with their children and Gustave.

         2. Life at Wilton Oaks

         At some point in 2015, Ana stopped bringing Gustave to the bank with her. But she continued to transact business at the bank as joint owner of the accounts and through her power of attorney. She told Ms. Alhalaseh at Capital One that Gustave had been diagnosed with dementia.

         Ana did continue to take Gustave to his doctors' appointments. Notes from a November 27, 2015 visit reflect that Ana told a doctor that she was concerned by Gustave's abusive language and his "escalating physicality." At another appointment in February 2016, she brought Gustave to see Dr. Hurley to address mood changes and outbursts that Gustave was experiencing after moving out of his home on Munsey Street. Dr. Hurley noted, in relation to Gustave's outbursts, that Gustave was upset because he "was a voracious reader and reportedly had a huge book collection." When Gustave was moved to Wilton Oaks with the Molinas, his book collection was left at the house on Munsey Street.

         Ana met with Dr. Hurley, without Gustave, on March 3, 2016, to review Gustave's "express wishes." Ana reported to Dr. Hurley that Gustave was becoming "increasingly difficult to manage." Although Ana continued to handle activities such as cooking, cleaning, bill paying, and managing the home, she said that Gustave "requir[ed] more intense assistance with his normal daily activities." Dr. Hurley reviewed with Ana, as Gustave's power of attorney, a document called the 'five wishes' and they completed a Medical Orders for Life-Sustaining Treatment ("MOLST") document, which sets out what should be done if the patient is found non-responsive.

         Later that month, on March 15, police responded to the Wilton Oaks house when Ana called to report that Gustave was suicidal and threatening to hurt others in the house. Ana referred to Gustave as her father and told Officer Whitney Kujawa that Gustave was threatening to hurt people because he had not been taking his medications for dementia and depression. Officer Kujawa completed an emergency evaluation petition to have Gustave evaluated against his will, and first-responders then transported him to the hospital.

         Three days later, Gustave had another appointment with Dr. Hurley to address his agitation. Ana reported that Gustave "had become much more aggressive and hostile towards her and [had] struck her." Gustave shouted and jumped at Dr. Hurley when he entered the room. Dr. Hurley recalled at trial that Gustave "didn't know where he was or what time [it was]. He was having some paranoid thoughts and they were loose and disjointed and they were just rambling." Gustave could not complete the clock test and had no short-term memories. After the appointment, Dr. Hurley heard a call over the loudspeaker that there was a medical alert to which police were called because Gustave had reportedly swung at other patients in the pharmacy. Dr. Hurley subsequently referred Gustave to the psychiatry department.

         After the incident at the pharmacy, an in-home nursing agency, Complete Care Solutions, began assisting in Gustave's care based on a referral from Kaiser. The owner of Complete Care, Sonia Mundle Smith, inspected the house on Wilton Oaks and noticed that it was inadequate for Gustave's physical condition. The main problem, as she saw it, was that the split-level house had no wheelchair access to accommodate Gustave's lack of mobility. According to Ms. Smith, Ana mentioned that living in a house that was not handicap-accessible would help justify her moving Gustave to an assisted-living facility. Ms. Smith also recounted a conversation with Ana about the Toyota Highlander, in which Ana claimed that Gustave used to pay her an allowance but stopped doing so when he purchased the Highlander (contrary to her assertion to Mr. Flynn that the vehicle was purchased by Javier's employer).

         Ms. Smith testified that Gustave said he used to have a lot of money, but Ana had taken it all, so he wanted to die. Around the same time, Ana bluntly told Ms. Smith that she worried Gustave would not die and lamented that she had paid for his ...


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