Ruth Escamilla v. State , 811 S.E.2d 77 ( 2018 )

SECOND DIVISION
MILLER, P. J.,
DOYLE, P. J., and REESE, J.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
February 22, 2018
In the Court of Appeals of Georgia
A17A2011. ESCAMILLA v. THE STATE.
MILLER, Presiding Judge.
Ruth Escamilla was convicted by a jury of exploitation of an elder person
(OCGA § 30-5-8 (July 1, 2012)).1 On appeal, she alleges that (1) the evidence was
insufficient to sustain her conviction; and (2) the trial court erred by failing to (a)
instruct the jury on her defense that the money the victim gave her was a gift, and
(b) define the term “undue influence” for the jury. After a thorough review of the
record, we affirm because the evidence was sufficient to support the conviction,
Escamilla cannot show plain error in the trial court’s failure to sua sponte instruct the
jury on her defense, and Escamilla has waived any challenge to the trial court’s
instruction on undue influence.
1
The jury acquitted Escamilla of theft by taking and forgery in the third degree.
Viewing the evidence in the light most favorable to the verdict,2 Escamilla met
the victim in 2006 when Escamilla worked as a teller at a Bank of America branch,
where the victim had an account. Escamilla moved to another state, but when she
returned to Georgia in 2010, she began working as a personal banker at a SunTrust
Bank branch in a Publix grocery store. While working there, she became reacquainted
with the victim, who also had an account at SunTrust.
As early as 2007, the victim’s family members and friends began to notice
changes in her demeanor, including repetitive behavior and memory loss. In March
2013, the victim was diagnosed as suffering from Alzheimer’s disease.
That same year, the victim noticed money missing from her account at SunTrust. The
victim mentioned this to several people, as she was concerned that something was
going on with her finances. The victim also stated that the “nice lady at the bank” was
helping her. As a result, the victim decided to close her SunTrust account and
consolidate the money into an account at Bank of America. Escamilla helped the
victim withdraw the funds, totaling $304,749.20, and advised her to get a certified
check in that amount made out to “CASH.” Escamilla then took the victim to Bank
of America to deposit the check into the victim’s existing account. Once the money
2
Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d 560) (1979).
2
was deposited, Escamilla helped the victim obtain a cashier’s check made out to
“CASH” for $304,000, which Escamilla deposited into her own account.3 Escamilla
subsequently bought a car, clothes, and dinners for her family, and took a vacation.
She also transferred nearly $50,000 to a new savings account.
In May 2013, after noticing that money was missing from the victim’s account,
the victim’s niece called the police. When questioned, Escamilla denied signing the
victim’s name on the checks and stealing from the victim, and she stated that the
money was a gift. Escamilla, however, never reported the gift to the IRS, never told
SunTrust that a client had given her such a gift, and she made a false entry in
SunTrust’s computer system when explaining why the victim closed her accounts.
The victim’s niece, who held her power of attorney, testified that the signatures
on the victim’s prior checks did not match the signature on the $304,000 check.
Additionally, the niece explained that the person who wrote the $304,000 check used
an ampersand when writing the amount, which was something the victim never did.
The victim’s family members also testified that they had never known the victim to
give financial gifts of more than several hundred dollars. The jury convicted
3
There are photos of Escamilla and the victim at the bank, and photos of
Escamilla depositing the funds into her own account. Additionally, Escamilla signed
her own name on the back of the check she deposited.
3
Escamilla of exploitation of an elder person. She moved for a new trial, which the
trial court denied, and this appeal followed.
1. Escamilla argues that the evidence was insufficient to sustain her conviction
because the State failed to prove any acts of exploitation or that she acted with undue
influence or deception. We disagree.
Under the version of the statute in effect at the time Escamilla committed the
offense, “the abuse or exploitation of any disabled adult or elder person shall be
unlawful.” OCGA § 30-5-8 (a) (1) (A) (July 1, 2012). “Exploitation” was defined as
“the illegal or improper use of a . . . elder person or that person’s resources through
undue influence, . . . for one’s own or another’s profit or advantage.” OCGA § 30-5-3
(9) (2009). The statute does not define “undue influence,” but the plain meaning of
this phrase is “improper influence that deprives a person of freedom of choice or
substitutes another’s choice or desire for the person’s own.” See www.merriam-
webster.com/legal/undue%20influence.
The evidence at trial showed that Escamilla assisted the victim in removing
over $300,000 from the victim’s account, she instructed the victim to write the check
for “CASH,” and she deposited the money into her own account. Although Escamilla
testified that she intended to use the money to open an adult day care center, she in
4
fact used that money to buy a car, clothes, dinners, and a vacation. There was
additional evidence that the victim suffered from dementia and was confused, that she
had never before given such a large monetary gift, and that the signature on the
victim’s other checks did not match the signature on the $300,000 check. This
evidence authorized the jury to conclude that Escamilla used deception or undue
influence to obtain money from the victim for Escamilla’s own personal gain. See
Marks v. State, 280 Ga. 70, 72-73 (1) (a) (623 SE2d 504) (2005).
Moreover, Escamilla testified in her own defense, and it is the jury’s role to
evaluate the credibility of witnesses. “This Court does not weigh the evidence,
determine witness credibility, or resolve evidentiary conflicts. Rather, those duties
rest within the province of the jury and it is the jury’s function to draw an inference
from the evidence when more than one inference can be drawn.” (Citations and
punctuation omitted.) Nelson v. State, 317 Ga. App. 527, 534 (2) (731 SE2d 770)
(2012). The jury weighed the evidence when it acquitted Escamilla of theft and
forgery and convicted her of exploitation of an elderly person, and we will not disturb
that decision where, as here, there is evidence to support it.
2. Escamilla argues that the trial court committed reversible error when it failed
to instruct the jury on her sole defense that the money was a gift. We disagree.
5
Generally, “[t]he trial court must charge the jury on the defendant’s sole
defense, even without a written request, if there is some evidence to support the
charge.” Tarvestad v. State, 261 Ga. 605, 606 (409 SE2d 513) (1991). Nevertheless,
because Escamilla did not request a jury instruction on her defense either orally or in
writing, we review this argument for plain error. White v. State, 291 Ga. 7, 8-9 (2)
(727 SE2d 109) (2012) (applying plain error review to omission of an unrequested
instruction on defendant’s sole defense). Under plain error review, we will reverse a
conviction only if all four prongs of the plain error test are met: “the instruction was
erroneous, the error was obvious, the instruction likely affected the outcome of the
proceedings, and the error seriously affects the fairness, integrity or public reputation
of judicial proceedings.” (Citation omitted.) Id.
Pretermitting whether alleging that the money was a gift is a defense to a
charge for exploitation of an elder person, Escamilla cannot meet her burden under
the plain error test.4
4
Escamilla recognizes that there is no criminal jury instruction for the defense
of gift. She argues, however, that the trial court could have looked to the civil jury
instruction. In light of our conclusion that there was no error, we need not reach the
question of what an appropriate instruction would have been.
6
Here, the trial court instructed the jury that the state had the burden of proof
and was required to establish Escamilla’s guilt beyond a reasonable doubt, and that
to be convicted Escamilla must have acted with the requisite specific intent to exploit
the victim. Thus, the jury instructions adequately covered the elements of the charge
and were not erroneous. Moreover, in her own testimony, Escamilla claimed that the
victim had given the money as a gift,5 and in finding Escamilla guilty, the jury
necessarily rejected Escamilla’s testimony. Thus, Escamilla has not shown that the
outcome of her trial would have been different had the jury been instructed on her
defense. See Hall v. State, 258 Ga. App. 156, 157 (1) - (2) (573 SE2d 415) (2002).
Accordingly, Escamilla cannot meet her burden of showing plain error, and this
enumeration of error has no merit.
3. Escamilla next argues that the trial court erred by not instructing the jury on
the definition of “undue influence.” We discern no error.
During deliberations, the jury asked whether there was a legal definition of
“undue influence.” After discussing the issue with both the prosecutor and defense
5
Closing arguments were not transcribed. Nevertheless, there is no dispute that
Escamilla’s defense, in her own testimony, was that the victim gave her the money
as a gift.
7
counsel, the trial court advised the jury that it must rely on its own understanding of
the plain meaning of those words. Importantly, Escamilla agreed to this response.
Escamilla has waived her challenge to the trial court’s response by failing to
object to – and instead affirmatively agreeing to – the trial court’s answer. Hill v.
State, 269 Ga. App. 459, 460-461 (1) (604 SE2d 300) (2004). Thus, this enumeration
presents nothing for us to review.6
Accordingly, for the foregoing reasons, we affirm the denial of Escamilla’s
motion for new trial.
Judgment affirmed. Doyle, P. J., and Reese, J., concur.
6
We note that there is an exception to this waiver rule. See Hill, supra, 269 Ga.
App. at 461 (1) (“the only exception to the waiver rule is when a trial court commits
a substantial error in the charge that is harmful as a matter of law. . . . [h]owever, [the
defendant] must show that the allegedly erroneous charge was blatantly apparent and
prejudicial to the extent that it raises a question whether [she] was deprived, to some
extent, of a fair trial. No issue is presented for appellate consideration unless a gross
miscarriage of justice attributable to the jury charge is about to result.”) (citations
omitted). Escamilla has not argued, much less shown, that this exception applies.
8