State of Missouri v. Lindsay Michelle Forbes

                                                      In the
                                Missouri Court of Appeals
                                            Western District
 STATE OF MISSOURI,                                         )
                                                            )
                    Respondent,                             )   WD84052
                                                            )
 v.                                                         )   OPINION FILED: MAY 3, 2022
                                                            )
 LINDSAY MICHELLE FORBES,                                   )
                                                            )
                     Appellant.                             )

                  Appeal from the Circuit Court of Saline County, Missouri
                           The Honorable Dennis Allen Rolf, Judge

Before Division Three: Gary D. Witt, Presiding Judge, Anthony Rex Gabbert, Judge and
                            W. Douglas Thomson, Judge


         Lindsay Michelle Forbes ("Forbes") appeals the judgment of the Circuit Court of

Saline County, Missouri ("trial court"), convicting her, following a jury trial, of the Class

B felony of financial exploitation of an elderly person (Forbes's father, "Father"), section

570.145.1 On appeal, Forbes alleges that the trial court: (1) erred by submitting the verdict

directing jury instruction because it criminalized a legal act in that it required the jury to

find that Forbes "knowingly obtained control of a bank account and proceeds from the sale



         1
          All statutory references are to the Revised Statutes of Missouri as in effect in June of 2016, unless
otherwise noted.
of a [vehicle] . . . with the intent to deprive [Father] permanently of the property, and . . .

[that Forbes] did so by the use of undue influence" while Forbes in fact obtained control of

the bank account and the vehicle by order of the probate court when she was appointed as

conservator; (2) erred by submitting the verdict directing jury instruction because it

submitted an aggregation of acts over a period of fifteen months and failed to differentiate

between various acts that would have ensured the jury unanimously convicted her of the

same act or acts; (3) plainly erred by submitting the verdict directing instruction because

the instruction aggregated various acts that may have been a series of misdemeanor

offenses into a felony offense; (4) plainly erred by submitting the verdict directing

instruction because there was no evidence to support that Father was detrimentally affected

by Forbes's actions, only that he may be detrimentally affected at some unknown future

time; (5) erred in refusing to instruct the jury on the lesser-included offense of stealing; (6)

erred in overruling Forbes's motion to dismiss because the probate court had exclusive

jurisdiction over the matter; and (7) erred in denying Forbes's motion for new trial after

having originally properly and timely sustain[ed] the motion because the trial court

erroneously concluded that its original ruling on the motion for new trial was untimely.

       We reverse the judgment of the trial court, and direct the trial court to discharge

Forbes.

                           Factual and Procedural Background

       In 2011, after his wife passed away, Father moved from Illinois to Missouri to be

near his daughter, Forbes. In 2015, Forbes found Father, who was living on his own,

unconscious with a gun under his pillow. Father was then on Hospice care for some time.

                                               2
After Father was removed from Hospice care, Forbes took twelve weeks of FMLA time

off from her job as a Registered Nurse so she could take care of Father in his home. In

June of 2015, Forbes obtained power of attorney for Father. Father also made a will, with

the help of an attorney, leaving everything to Forbes. Forbes returned to work but had to

keep taking days off because Father was falling, he was having cardiovascular issues, and

his behavior was odd.

       In approximately May of 2016, Father drove to a care home in Concordia, Missouri,

at around midnight stating that he had a delivery for them. The care home turned him

away, stating that they could not take deliveries at that time, and Father drove to Illinois in

the middle of the night, reaching a friend's house at approximately 6:30 in the morning.

From there, Father drove to a trucking company in Kanas City, Missouri, fell asleep in the

parking lot, and then went into the trucking company, demanding a paycheck and

demanding a truck to drive (Father had worked as a truck driver). After this incident,

Forbes determined that Father needed to be placed in a safe facility, and she arranged for

him to move to The Arbors, which was the memory care portion of the Westport senior

care facility. At around this same time, Forbes applied to the probate court to become

Father's guardian and conservator, and she was so appointed on June 29, 2016. When

Forbes was appointed as guardian and conservator, Father's checking account balance was

$45,764.54 and he also owned a vehicle valued at approximately $10,000.

       Father's care at Westport was, by agreement with the facility, to be equal to the

amount he was receiving from his Social Security and pension, plus the payments he would

be receiving from the VA as a veteran. However, the VA payments were delayed because

                                              3
Father owned too much property, and Father's balance at Westport grew to around $20,000.

Father also had a balance outstanding at Westport's affiliated pharmacy, although the VA

should have been providing Father's medications. Forbes wrote a check to Westport in

September of 2016 for over $17,000 to assist in paying for his care. However, because a

balance still remained on Father's account, the administrator of Westport made a "hotline"

call to report Forbes's delinquency on Father's account. Other than non-payment of the

bill, the administrator did not have any concerns over Forbes's treatment of Father; she

visited him, treated him well, and took him to appointments when needed, and Forbes

communicated well with Westport.        In response to the hotline call, the Missouri

Department of Health and Senior Services, Division of Aging together with the Marshall

Police Department began an investigation.

      In August of 2017, Forbes voluntarily relinquished her guardianship and

conservatorship over Father and his estate, and Paula Barr ("Barr"), the Saline County

Administrator, was appointed as Forbes's successor on September 11, 2017. At the time

Barr took over, Father's checking account had a balance of $3,653.69 and his vehicle had

been sold.

      The investigation determined that starting in September of 2016, Forbes had begun

making fairly regular ATM withdrawals and other debits to places such as gas stations,

Wal-Mart stores, and several other businesses. Forbes had also withdrawn $10,000 in cash

on a single day in November of 2016, and she had used money from Father's account to

pay for a vacation in Arkansas that she took with her husband. Forbes also sold Father's

vehicle, which he was no longer driving, and used the proceeds toward a new vehicle for

                                            4
herself. Forbes did pay some expenses on Father's behalf such as medical bills and property

taxes as well as providing Father cash for things such as haircuts, cigarettes, and alcohol.

         The State charged Forbes with the Class B felony of financial exploitation of an

elderly person by undue influence, pursuant to section 570.145. The information charging

the offense alleged that Forbes committed the Class B felony of financial exploitation of

the elderly, between June 29, 2016 and September 10, 2017, Forbes exerted undue

influence over Father, who was over 60 years of age, and "knowingly obtained control of

the assets and bank account" of Father, with a value of more than $25,000, and with the

intent to permanently deprive Father of the use and benefit of that property, thereby

benefitting herself and detrimentally affecting Father. A jury trial was held. At the

instruction conference following the evidence, Forbes's counsel offered verdict directors

for two different stealing offenses that he argued were lesser-included offenses to the

charged offense.2 The trial court found that these offenses were not lesser-included

offenses and rejected the proposed verdict directors. Instead, the trial court gave the jury

the State's verdict director3, which stated:

                                               Instruction Number 5

         If you find and believe from the evidence beyond a reasonable doubt[:]

         First, that between June 29th, 2016, and September 10th, 2017, in the County
         of Saline, State of Missouri, the Defendant knowingly obtained control of a


         2
           The jury instructions were not included in the record on appeal, but only in the appendix to the brief. The
inclusion of documents in an appendix to a brief does not make them part of the record on appeal. G.B. v.
Crossroads Academy-Central Street, 618 S.W.3d 581, 586 n. 4 (Mo. App. W.D. 2020).
         3
           A copy of Instruction Number 5, although in the Appendix to Forbes's brief, was not included in the legal
file. The instruction cited in this opinion is taken from the transcript of the trial. The verdict directors for the lesser
offenses offered by Forbes also do not appear in the legal file.

                                                             5
      bank account and the proceeds from the sale of a 2013 Ford Escape, property
      of [Father] and;

      Second, the Defendant did so with the intent to deprive [Father] permanently
      of the use of his property, and;

      Third, that at that time [Father] was 60 years of age or older and;

      Fourth, that the Defendant was thereby benefitted and [Father] detrimentally
      affected and;

      Fifth[,] Defendant did so by the use of undue influence and;

      Sixth, that the property had a value of at least $25,000, then you will find the
      Defendant guilty of exploitation of an elderly person involving $25,000 or
      more.

      However, unless you find and believe from the evidence, beyond a
      reasonable doubt, each and all of these propositions, you must find the
      Defendant not guilty of that offense.

      As used in this instruction, the term undue influence means the use of
      influence by someone who exercises authority over an elderly person or
      person with a disability in order to take unfair advantage of that person's
      vulnerable state of mind, neediness, pain or agony. Undue influence includes
      but is not limited to the improper or fraudulent use of a power of attorney,
      guardianship, conservatorship, or other fiduciary authority.

      As used in this instruction, the term elderly person means a person 60 years
      of age or older.

      During jury deliberations, the jury asked for clarification whether "intent was on the

days she took over or between the dates on said form." The trial court informed the State:

      [Court:] Well, here's the problem. This should have never been put in here
      like this. Normally it is gained control of a bank account. It is not what the
      problem should have been. The problem should have been the money that
      was taken from the bank account. But I asked when we started--

      [Defense:] I objected to that language if you recall.



                                             6
       [State:] And I wasn't privy to the drafting of this. So I don't know. I wasn't
       trying to pawn off, but I wasn't--

       [Court:] It is a big deal for you. I mean, I don't know why you would have
       objected.

       [Defense:] Well, because--

       [Court:] You must be guided by the instructions the Court has given to you,
       that is about all I can say.

The jury found Forbes guilty on September 26, 2019. The trial court granted an extension

of time to file post-trial motions.

       On October 18, 2019, Forbes timely filed her motion for new trial or, alternatively,

a motion for a judgment of acquittal. Forbes argued that the court should enter a judgment

of acquittal because the evidence had been insufficient to support her conviction as

charged. On January 13, 2020, the trial court orally sustained the motion for new trial. On

January 31, 2020, the trial court set aside its January 13, 2020 ruling on the motion for new

trial erroneously finding that the motion for new trial was denied by operation of law

because more than ninety days had passed between the filing of the motion for new trial,

October 18, 2019, and the date the trial court sustained the motion, January 13, 2020. A

sentencing hearing was scheduled for February 10, 2020.

       At the sentencing hearing, the trial court again expressed doubt about the charge and

the verdict director given to the jury:

       [Court:] Mr. [Prosecutor], I think she is guilty of something, but I will be
       shocked if the Court of Appeals doesn't set this aside. I don't see any way
       that she is going to be convicted of taking control of the bank account when
       she was given the bank account by the Probate Court. And there is a pretty
       decent chance that the Court of Appeals is going to send this back and say


                                             7
       acquitted. But if that is what happens, that is what happens. If they don't,
       Mr. [Counsel] your client is going to be serving a sentence.

                                              ***

       The 34.96 involves the right to conditional release pending appeal. One of
       the things the Court is . . . going to take into consideration is the strength of
       the case. Unless I'm wrong and every other judge I have discussed this case
       with is wrong, I think she is going to win on appeal. So I'm going to leave
       the bond as currently posted for appeal purposes.

The trial court then sentenced Forbes to ten years in the Department of Corrections and

continued the case for a restitution hearing. Forbes filed a notice of appeal, however,

because the trial court's judgment had not yet addressed the issue of restitution, and this

Court dismissed the appeal as premature. A second sentencing hearing was held on

September 14, 2020, wherein Forbes was sentenced to fifteen years in prison and ordered

to pay restitution in the amount of $26,118.51. This appeal follows.

                                        Standard of Review

       Most of Forbes's points on appeal allege instructional error either regarding the

verdict director or the failure to submit the lesser included offense instructions. Alleged

instructional error is subject to de novo review. State v. Sanders, 522 S.W.3d 212, 215

(Mo. banc 2017). "Instructional error requires reversal when the error is 'so prejudicial that

it deprived the defendant of a fair trial.'" Id. (quoting State v. Zetina-Torres, 482 S.W.3d

801, 810 (Mo. banc 2016)). If the error is failure to submit an instruction on a nested lesser-

included offense, prejudice is presumed. Id. However, it is not error to reject an improper

jury instruction for a lesser-included offense or if the instruction offered is for an offense

that is not properly a lesser-included offense. Id., See also State v. Goebel, 83 S.W.3d 639,


                                              8
645 (Mo. App. E.D. 2002) (improper to instruct on an offense not specifically charged in

the indictment or information unless it is a lesser-included offense). An unpreserved

instructional error may be reviewed for plain error, at this Court's discretion, if the Court

finds that manifest injustice or miscarriage of justice has resulted from the error. State v.

Escobar, 523 S.W.3d 545, 548 (Mo. App. W.D. 2017). An alleged error in denying a

motion to dismiss for lack of jurisdiction is a legal question that is reviewed de novo. Hiler

v. Dir. of Revenue, 48 S.W.3d 683, 685 (Mo. App. W.D. 2001).

                                          Analysis

Instructional error: criminalizing legal activity

       Forbes's first point on appeal is that the trial court erred in submitting the verdict

directing Instruction No. 5 because the instruction criminalizes a legal act in that Forbes,

as the court-appointed conservator for Father, was authorized by the probate court to take

control of and manage Father's bank account and his assets, and thus Forbes did not obtain

control of these assets by the use of undue influence as is defined in section 570.145. The

statute, as it read in June of 2016, when Forbes obtained control over these assets, provided

that a person commits the offense of financial exploitation of the elderly if the person

"knowingly by deception, intimidation, undue influence, or force obtains control over the

elderly. . . person's property with the intent to permanently deprive the elderly. . . person

of the use, benefit or possession of his or her property thereby benefitting such person or

detrimentally affecting the elderly. . . person." Section 570.145 (2016). The statute defined

"[u]ndue influence" as "use of influence by someone who exercises authority over an

elderly person. . . in order to take unfair advantage of that persons's [sic] vulnerable state

                                              9
of mind, neediness, pain, or agony. Undue influence includes, but is not limited to, the

improper or fraudulent use of a power of attorney, guardianship, conservatorship, or other

fiduciary authority." Section 570.145.2(5) (2016). The statute was amended, effective

January 1, 2017, but the changes were not substantively significant as to the applicable

provisions.4

         "When an applicable MAI-CR instruction is available, that instruction must be given

by the trial court as written, and its use will not constitute error." State v. Woodworth, 941

S.W.2d 679, 699 (Mo. App. W.D. 1997). As Forbes points out, the form of Instruction No.

5 was taken directly from MAI-CR, but it was altered by the State in a way that separates

the facts, as established by the evidence presented, from Forbes's charge.

         As instructed, in order to convict Forbes, the jury had to find:

         1) Between June 29th, 2016 and September 10th, 2017, Forbes obtained control of
            the bank account and the proceeds from the sale of the vehicle, and

         2) Forbes did so with the intent to permanently deprive Father of its use, and

         3) Father was over 60 years of age, and

         4) Forbes benefited and Father was detrimentally affected, and

         5) Forbes did so by undue influence, and

         6) The property value was at least $25,000.




          4
            The range of punishment for this offense was changed, but the trial court ruled that Forbes would benefit
from the lesser range of punishment in effect at the time the charged offense and neither party appeals that
determination, so this is not an issue in this case. While Forbes's brief claims that the version of section 570.145
made no mention of undue influence prior to 2017, Forbes is mistaken. The statute included undue influence as of
all relevant dates in this case.

                                                         10
       However, this instruction differs from the State's amended felony information; the

information does not charge Forbes with obtaining control over the bank account and the

"proceeds from the sale of the vehicle," but rather it charges her with having "obtained

control of the assets and bank account of" Father. (Emphasis added). The State's evidence

consisted largely of ATM withdrawals and expenditures Forbes made from Father's bank

account between September of 2016 and September 2017, before Barr took over as

guardian and conservator. Evidence was also presented that Forbes sold Father's vehicle

and used the proceeds to purchase a newer vehicle for herself. While these transactions,

expenditures, and withdrawals could certainly be relevant to show that Forbes had an

"intent to permanently deprive" Father of the use or benefit of his assets, that is not the only

element the State was required to prove. The critical element of this offense pursuant to

the amended information filed by the State, as Forbes points out and the trial court clearly

noted, is that she "obtain[ed] control over" the bank account and the assets by undue

influence. Section 570.145.2(5). There was simply no evidence that this occurred.

       The probate court appointed Forbes as the guardian and conservator for Father in

June of 2016, after Father had exhibited strange behavior that was consistent with dementia

and exhibited signs that he was a risk to his physical health and safety. There is no

argument that Father was not in need of a guardian or conservator at the time Forbes was

appointed or that she exerted any undue influence over Father to be appointed to this

position. No one objected to Forbes's appointment, and she had been caring for Father

intermittently for some period of years prior to her appointment.               The Westport

administrator was working with Forbes to obtain arrangements for the care of Father and

                                              11
informed Forbes about VA benefits for which Father was eligible. There was no indication

at the time she was appointed that Forbes was exerting any undue influence on Father, and

she was not charged with inappropriately spending the corpus of Father's assets. The

verdict director instructed the jury that it could find Forbes "obtained control of the

proceeds" from the sale of his vehicle, but in this respect the instruction is at odds with the

charge as filed by the State.5 And while undue influence can include "the improper or

fraudulent use of a power of attorney, guardianship, conservatorship, or other fiduciary

authority," the improper use of the guardianship or conservatorship shown by the evidence

in this case did not relate to Forbes's obtaining control over Father's assets but rather to her

depletion of the assets months after she had obtained control over them pursuant to the

order of the probate court. See section 570.145.2(5). Thus, there was no evidence that she

obtained control over Father's assets by means of undue influence, and the verdict directing

instruction was erroneously submitted to the jury.

        Instructional error only warrants reversal when the error is "'so prejudicial that it

deprived the defendant of a fair trial.'" Sanders, 522 S.W.3d at 215 (quoting Zetina-Torres,

482 S.W.3d at 810).            As the trial court surmised, this erroneous instruction clearly

prejudiced Forbes such that it deprived her of a fair trial because it allowed the jury to

convict her of the criminal offense based on the legal action of taking control of the bank

account pursuant to the order of the probate court.



         5
           Even if the amended information had charged Forbes with improperly obtaining control over the proceeds
of the vehicle, the evidence showed that the vehicle was worth only nine to ten thousand dollars, which is far below
the $25,000 threshold required to constitute a B felony under section 570.145, which is how the State charged
Forbes.

                                                        12
         Forbes's first point is granted. Her remaining points on appeal are therefore moot.

         Forbes's motion before the trial court was alternatively for a new trial or a verdict

of acquittal. An information may not be amended after a verdict. Rule 23.08; State v.

Urban, 796 S.W.2d 599, 602 (Mo. banc 1990). The amendment charged Forbes with

felony financial exploitation of an elderly person by obtaining control over Father's bank

account and his assets, with a value of $25,000, with the intent to permanently deprive him

thereof, by way of undue influence. As stated above, the State did not produce sufficient

evidence to prove its charge that Forbes "obtained control" of Father's assets by way of

undue influence because it is undisputed the probate court ordered her to take control of

the assets as Father's conservator. Therefore, the trial court should have granted Forbes's

motion for acquittal. "If the information did not state an offense, the court had no

[authority] to proceed. If the evidence was not sufficient to support the verdict, then the

defendant was entitled to a judgment of acquittal, and the state [is] not entitled to proceed

with a new trial." Urban, 796 S.W.2d at 602.6 Accordingly, Forbes should be discharged.




          6
            As did the court in Urban, we "recognize the rule that a defendant who is found guilty and asks for a new
trial cannot plead double-jeopardy when tried again." 796 S.W.2d at 601. However, Forbes pled alternatively for a
judgment of acquittal, and, also similarly to Urban, "it is clear that the [trial] judge was of the opinion either that
[the information] did not state an offense, or that the evidence did not support the charge[] made." Id. at 601-02.
We find that double jeopardy would prohibit the state from retrying Forbes for this offense.

                                                          13
                                         Conclusion

       For all of the above-stated reasons, we reverse the judgment of conviction and the

sentence of the trial court, and direct the trial court to discharge Forbes.



                                            __________________________________
                                            Gary D. Witt, Judge

All concur




                                              14