STATE OF MISSOURI, )
)
Plaintiff-Respondent, )
)
vs. ) No. SD33357
)
JANICE A. LIVINGSTON-RIVARD, ) Filed: May 20, 2015
)
Defendant-Appellant. )
APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY
Honorable Robert D. Schollmeyer
AFFIRMED
Janice A. Livingston-Rivard ("Defendant") appeals from her conviction of
one count of financial exploitation of the elderly. Defendant argues that there
was insufficient evidence to support her conviction and that the trial court erred
in overruling three hearsay objections Defendant made at trial. Defendant's
claims are without merit, and her conviction and sentence are affirmed.
Factual and Procedural Background
Aften Ambrose ("Victim") and his wife lived in a 1994 Belmont mobile
home. Around 2005 or 2006 when Victim was in his 80s, Victim's health began
to decline and he was diagnosed with dementia and Alzheimer's. On April 15,
2008, Victim attempted suicide by shooting himself and was hospitalized.
Upon his recovery, Victim returned home. Defendant, who was employed
as a barmaid at a local VFW, then became involved in Victim's day-to-day life.
One day, a next-door neighbor and friend of Victim, Angie Patterson, overheard a
conversation between Defendant and Victim while at Victim's home. Defendant
told Victim that he and his wife needed to transfer their property to Defendant so
the state would not take it away when Victim and his wife had to enter a nursing
home. On another occasion, Ms. Patterson encountered Victim with a large
amount of cash in his possession. Ms. Patterson told Victim he should put the
money in the bank. Victim responded that he did not want to put the money in
the bank because Defendant would get it. In another conversation, Victim told
Ms. Patterson he and his wife had nothing left because Defendant had taken it all.
A nephew of Victim, Wayne Russell, stated Victim said he could not go to
breakfast with Mr. Russell without Defendant's permission.
During that same time period, Victim began to dispose of his property. On
July 13, 2008, Defendant purchased Victim's van for $100.00. On August 19,
2009, Victim gave Defendant the 1994 Belmont mobile home. On October 11,
2009, Victim gave Defendant a 1968 Ford automobile.
When Mr. Russell questioned Defendant about these transfers, Defendant
advised him she was a state employee who had been appointed to take care of
Victim and Victim's wife. When a nun attempted to contact Victim regarding
proceeds from the estate of Victim's deceased sister, Defendant also told the nun
that Defendant was a state employee taking care of Victim and his wife.
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Mr. Russell, whose investigation revealed there had been no such
appointment of Defendant as a caretaker, sought and obtained guardianship over
Victim and Victim's wife. Victim died in 2011.
Defendant was subsequently charged with two counts of financial
exploitation of the elderly under § 570.145.1 Defendant waived her right to a trial
by jury and had a bench trial.
The trial judge found Defendant guilty of financially exploiting Victim but
not guilty of financially exploiting Victim's wife. The trial court sentenced
Defendant to serve 15 years in the Missouri Department of Corrections but
suspended execution of the sentence and placed Defendant on five years
probation. Defendant appeals.
Discussion
For ease of analysis, we take Defendant's points out of order. First, we will
address Defendant's claims of evidentiary error.
Point II, Point III, and Point IV: Hearsay
In these points, Defendant challenges the admission of the testimony
regarding Victim's statements to Mr. Russell and Ms. Patterson. Defendant
argues the statements were hearsay. This argument is without merit.
This Court reviews trial court rulings regarding the admissibility of
evidence for an abuse of discretion. State v. Winfrey, 337 S.W.3d 1, 5 (Mo.
banc 2011). "The trial court abuses its discretion when its ruling is 'clearly
against the logic of the circumstances and is so unreasonable as to indicate a lack
1
All statutory references are to RSMo Cum. Supp. (2007).
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of careful consideration.'" Id. (quoting State v. Gonzales, 153 S.W.3d 311, 312
(Mo. banc 2005)).
Defendant's arguments regarding Victim's statements are without merit
because the statements were not offered for their truth. "Hearsay evidence is in-
court testimony regarding an out-of-court statement used to prove the truth of
the matter asserted therein that derives its value from the veracity of the out-of-
court statement." State v. Newsom, 299 S.W.3d 784, 788 (Mo. App. S.D.
2009). Generally speaking, such statements are not admissible. Winfrey, 337
S.W.3d at 6. "However, if an out-of-court statement is not admitted to prove the
truth of the matter asserted, but for some other purpose that is independently
relevant without reference to the truthfulness of the statement, then the
statement is non-hearsay." Id. See also State v. McIntosh, 635 S.W.2d 370,
371-72 (Mo. App. W.D. 1982); State v. Harris, 571 S.W.2d 443, 446 (Mo. App.
St. L. D. 1978).
Here, Victim's statements to Mr. Russell and Ms. Patterson were not
hearsay because they were not offered to prove the truth of the statements. The
statement made to Mr. Russell by Victim asserted Victim needed Defendant's
permission in order to go to breakfast with Mr. Russell. However, the
statement's probative value did not depend on whether Victim actually needed
permission to go to breakfast. Rather, the mere fact that Victim made and
evidently believed the statement tended to show Defendant's influence over
Victim. Victim's first statement to Ms. Patterson asserted Defendant would get
Victim's money if Victim put it in the bank. Again, the statement tends to show
Defendant's influence over Victim regardless of whether or not it was true.
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Finally, Victim's second statement to Ms. Patterson asserted Defendant had
obtained all of Victim's property. But again, the prosecution offered the
statement not to prove that Defendant had actually obtained possession of
Victim's property—the prosecution did that through its exhibits showing Victim's
"gifts" to Defendant—but rather to show Defendant's influence over Victim. As
the statements were not hearsay, the trial court did not abuse its discretion when
it overruled Defendant's objections.
Defendant's second, third, and fourth points are denied.
Point I: Sufficiency of the Evidence
In her first point, Defendant argues the trial court erred in denying her
motion for judgment of acquittal because the State failed to prove Defendant
made a misrepresentation which caused Victim to transfer his property to
Defendant. This argument is without merit.
"The appellate court reviews the sufficiency of the evidence in a court-tried
criminal case by applying the same standard used in a jury-tried case." State v.
Holman, 230 S.W.3d 77, 82 (Mo. App. S.D. 2007). That is, the issue is whether
"any rational fact-finder 'could have found the essential elements of the crime
beyond a reasonable doubt.'" State v. Nash, 339 S.W.3d 500, 509 (Mo. banc
2011) (quoting State v. Bateman, 318 S.W.3d 681, 687 (Mo. banc 2010)). In
conducting this review, "[t]he credibility and weight of testimony are for the fact-
finder to determine." Holman, 230 S.W.3d at 83. "The fact-finder may believe
all, some, or none of the testimony of a witness when considered with the facts,
circumstances and other testimony in the case." Id. (quoting State v.
Crawford, 68 S.W.3d 406, 408 (Mo. banc 2002)). "[T]he Court does not act as
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a 'super juror' with veto powers, but gives great deference to the trier of fact."
Nash, 339 S.W.3d at 509 (quoting State v. Chaney, 967 S.W.2d 47, 52 (Mo.
banc 1998)). Thus, "[t]he Court is required to take the evidence in the light most
favorable to the State and to grant the State all reasonable inferences from the
evidence." Holman, 230 S.W.3d at 83 (quoting State v. Whalen, 49 S.W.3d
181, 184 (Mo. banc 2001)). "The Court disregards contrary inferences[.]" Id.
(quoting Whalen, 49 S.W.3d at 184).
Defendant was charged and convicted under Section 570.145. That section
provides that:
A person commits the crime of financial exploitation of an elderly
or disabled person if such person knowingly by deception,
intimidation, undue influence, or force obtains control over the
elderly or disabled person's property with the intent to permanently
deprive the elderly or disabled person of the use, benefit or
possession of his or her property thereby benefiting such person or
detrimentally affecting the elderly or disabled person.
§ 570.145.1. Defendant does not contest that Victim met the statutory definition
of elderly or that Defendant did obtain Victim's property. The issue in this case is
whether Defendant's statements met the definition of "deception, intimidation,
undue influence, or force[.]" The statute defines deception as follows:
a misrepresentation or concealment of material fact relating to the
terms of a contract or agreement entered into with the elderly or
disabled person or to the existing or preexisting condition of any of
the property involved in such contract or agreement, or the use or
employment of any misrepresentation, false pretense or false
promise in order to induce, encourage or solicit the elderly or
disabled person to enter into a contract or agreement.
§ 570.145.2(1).
There is no reported Missouri case addressing the issue of what constitutes
sufficient evidence to support a conviction under this statute. However, similar
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crimes have long been prosecuted under general theft statutes. See, e.g., State
v. Crow, 487 S.W.2d 461 (Mo. 1972); State v. Davis, 675 S.W.2d 652 (Mo.
App. S.D. 1984) (overruled on other grounds by State v. Carson, 941 S.W.2d
518, 520 (Mo. banc 1997)). In such cases, even where the victim cannot testify,
the courts will find sufficient evidence to support the conviction where there is
evidence of a false statement in connection with a transaction in which the victim
transferred property to the defendant. See Crow, 487 S.W.2d at 464-65.
Here, there was evidence from which a rational finder of fact could
reasonably infer Defendant made a misrepresentation which induced Victim to
give Defendant substantial property for either none or very little consideration.
Ms. Patterson overheard a conversation in which Defendant said Victim and his
wife should transfer all their property to Defendant so the state would not
confiscate the property when Victim and his wife had to go to a nursing home.
Furthermore, Defendant told both Mr. Russell and Ms. Patterson and a nun that
Defendant had been appointed by the state to take care of Victim and his wife. A
jury could have inferred that Defendant made such statements to Victim to
deceive him.
The falsity of Defendant's statements can be inferred from the fact that
Defendant never provided documentation that she had been appointed by the
state and that Mr. Russell was able to obtain a guardianship over Victim and
Victim's wife. Victim's reliance can be inferred from the fact that Victim and his
wife transferred two vehicles and their home to Defendant for a total of $100
consideration. This evidence is sufficient such that a reasonable trier of fact
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could infer Defendant made a misrepresentation which induced Victim to enter
into an agreement to transfer his property to her.
Defendant argues Ms. Patterson's testimony regarding Defendant's
statement to Victim is not sufficient to support the conviction because Ms.
Patterson could not remember whether Defendant was talking to Victim or to
Victim's wife. However, nothing in the statute requires that the
misrepresentation be made directly to the victim. The statute simply requires
that the defendant obtain control over property "by deception, intimidation,
undue influence, or force[.]" § 570.145.1. The plain meaning of this language
requires proof that deception was used, not necessarily that the defendant lied
directly to the victim. See People v. Owsley, 996 N.E.2d 118, 125 (Ill. App.
2013) (finding sufficient evidence of deception under Illinois's financial
exploitation of the elderly statute where the defendant lied to lawyers and bank
officials regarding transactions the victim completed). Based on the
circumstances of this case, a fact-finder could reasonably infer that Defendant's
statements, whether made to Victim or Victim's wife or to Victim's family and
friends, were used to help deceive Victim and to enable Defendant to obtain the
property.
There was sufficient evidence to support Defendant's conviction.
Defendant's first point is denied.
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Decision
The trial court's judgment is affirmed.
MARY W. SHEFFIELD, P.J. – OPINION AUTHOR
GARY W. LYNCH, J. – CONCURS
DON E. BURRELL, J. – CONCURS
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