Circuit Court for Montgomery County Case Nos. 131134C &
Leahy, Adkins, Sally D., (Senior Judge, Specially Assigned),
Assumes the Care of Gustave
Dementia and Other Diagnoses
Second APS Investigation in 2015
House on Wilton
Third APS Investigation in
Motions for Judgment of Acquittal
Renewed Motions for Judgment
Evidence of Gambling and the Molinas' Financial Status
A. Motions in Limine
B. Parties' Contentions on Appeal
C. Gambling and Finances: Special Circumstances
Motion to Sever
A. Motion in Limine
B. Testimony on Duty of Fiduciary
C. Testimony on Gustave's Capacity
Sufficiency of the Evidence Against Ana
Sufficiency of the Evidence Against Javier
A. Financial Exploitation
B. Theft Scheme
The State's Rebuttal Closing Argument
Shapiro, a widowed nonagenarian, depended on others for his
transportation and daily care-he was a vulnerable
adult. 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.
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.
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and 2016, $450, 000 was withdrawn from Gustave's bank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 More than $60, 000 was withdrawn to pay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$60, 000 was withdrawn from ATMs near two casinos where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.
Javier appealed and each presented four issues for our
review, which we have consolidated, reordered, and rephrased
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
V. Was the evidence sufficient to convict Ana of financial
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?
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." 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.
case before us is the kind that the General Assembly intended
to address when it enacted the financial exploitation
statutory scheme. 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.
February 2, 2017, a grand jury sitting in Montgomery County
returned indictments against Ana and Javier, respectively. As
relevant to this appeal,  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,
Ana was also charged with two counts of misappropriation by a
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. The court
revisited this issue later in response to Ana's motion to
sever the cases and reaffirmed its earlier ruling.
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.
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.
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
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
Ana Assumes the Care of Gustave 1. Large Banking Transactions
Begin in 2013
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.
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.
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
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.
First APS Investigation in 2013
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.
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.
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
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.
Ms. McGlamary met with Gustave and confirmed the information
concerning the two different banks, APS closed the
investigation on November 24, 2013.
Power and Money
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
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
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
[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. . . .
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
New Toyota Highlander
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.
2014 Will and Deed to the House
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.'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.
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.
Dementia and Other Diagnoses
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.
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.
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.
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.
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.
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."
A Second APS Investigation in 2015
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.
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.
County police arrived and interviewed Ana and Gustave
separately. Officer Jamie Rosner 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.
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,  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.
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.' 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.
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.
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
The House on Wilton Oaks 1. The Purchase of a Non-Accessible
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."
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[.]"
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.
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.
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. 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.
Life at Wilton Oaks
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.
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
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.
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.
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.
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).
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