Opinion
No. 334693
10-10-2017
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. DARCY LIN LOOMIS, Defendant-Appellant.
UNPUBLISHED Gratiot Circuit Court
LC No. 15-007344-FH Before: TALBOT, C.J., and O'CONNELL and O'BRIEN, JJ. PER CURIAM.
Defendant, Darcy Lin Loomis, appeals as of right a conviction for embezzlement from a vulnerable adult, MCL 750.174a(1), in the amount of $20,000 to $50,000, MCL 750.174a(5)(a), following a jury trial. The trial court sentenced Loomis to 180 days in jail.
I. FACTUAL BACKGROUND
Patricia Schaeffer, now in her early 70s, was a longtime friend and neighbor of Darcy's brother-in-law, Tim Loomis. In 2010, shortly after Schaeffer's husband died, Schaeffer gave Tim a financial power of attorney. Tim soon found himself too busy to care for Schaeffer, so he asked Darcy for help.
Darcy helped clean Schaeffer's home and pay Schaeffer's bills. For about ten months, while Tim retained power of attorney, Schaeffer wrote 22 checks to Darcy totaling about $7,800. Darcy explained that the checks were for various items for Schaeffer and her home, such as a microwave and a television.
In the fall of 2014, Schaeffer went to see her attorney, Rhonda Clark-Kreuer, about transferring power of attorney to Darcy. Concerned about Schaeffer's memory loss and confusion, Clark-Kreuer declined to change the power of attorney. Darcy obtained power of attorney with the aid of another lawyer.
Darcy then joined Schaeffer's bank accounts at Commercial Bank and Mercantile Bank. Records also show a sum of money paid out of Schaeffer's retirement account deposited into a new bank account in Schaeffer and Darcy's names. In addition to direct purchases out of the shared accounts, Darcy used money from the accounts to pay her credit card balance. Darcy maintained that she used her credit card for Schaeffer's expenses to earn reward points and reimbursed herself, all with Schaeffer's approval.
Darcy admitted that she also purchased items for her own family, such as a one-night hotel stay for her and her daughter and guitars for her sons, but she explained that Schaeffer wanted Darcy to make these purchases. Darcy said that she also used money to fix up the house she and her family lived in, which Schaeffer owned, but maintained it was for Schaeffer's benefit also.
Schaeffer's monthly expenses were around $3,000 before 2014. After Darcy obtained power of attorney, debits from Schaeffer's bank accounts more than doubled in the following months, nearly quadrupling at their peak.
Several witnesses, including Darcy, testified about Schaeffer's cognitive decline throughout this time period and their concerns about Schaeffer's ability to live on her own.
II. ANALYSIS
On appeal, Darcy argues that the evidence was insufficient to convict her, that MCL 750.174a(1) is unconstitutionally vague, and that the trial court erred by failing to instruct the jury that the offense requires a showing of intentional fraud. We disagree.
A. STANDARD OF REVIEW
This Court reviews de novo a challenge to the sufficiency of the evidence. People v Ericksen, 288 Mich App 192, 195; 793 NW2d 120 (2010). We review unpreserved constitutional claims for plain error affecting substantial rights. People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999). Reversal is warranted only if the plain error resulted in the conviction of an innocent defendant or seriously undermined the proceedings. Id. This Court reviews de novo a claim of instructional error. People v McKinney, 258 Mich App 157, 162; 670 NW2d 254 (2003).
B. SUFFICIENCY OF THE EVIDENCE
This Court reviews the sufficiency of the evidence in the light most favorable to the prosecution to decide if a rational jury could find proof of each element of the offense beyond a reasonable doubt. McKinney, 258 Mich App at 165. We will not usurp the jury's role in weighing the evidence or evaluating the credibility of the witnesses. Id. Circumstantial evidence and reasonable inferences are sufficient to prove the elements of the offense. Id.
In this case, the prosecution was required to prove that Darcy used "fraud, deceit, misrepresentation, coercion, or unjust enrichment" to "obtain or use or attempt to obtain or use a vulnerable adult's money or property" for Darcy's direct or indirect benefit, "knowing or having reason to know the vulnerable adult is a vulnerable adult." MCL 750.174a(1). Darcy contests the sufficiency of the evidence for two of these elements: whether Darcy obtained or used the money through unjust enrichment and whether Schaeffer was a vulnerable adult.
Darcy first argues that the prosecution did not substantiate its unjust enrichment theory because it did not show that Schaeffer disapproved of Darcy's use of the money. Darcy admitted that she used some of Schaeffer's money for her own benefit but maintained that she had Schaeffer's approval. Darcy described her understanding of the power of attorney to mean that she should fulfill Schaeffer's wishes, which included giving money to Darcy's family for gifts. The jury heard this testimony, yet it found Darcy's justification unconvincing, a finding that we will not disturb.
Darcy next argues that the prosecution did not demonstrate that Schaeffer was a vulnerable adult because it produced no medical evidence of Schaeffer's condition. The statute does not require scientific evidence, however. Rather, it defines a "vulnerable adult" as an "individual age 18 or over who, because of age, developmental disability, mental illness, or physical disability requires supervision or personal care or lacks the personal and social skills required to live independently." MCL 750.145m(u)(i).
Several witness described Schaeffer's cognitive decline. Tim expressed concern about Schaeffer's hygiene. He noticed other troubling signs, such as Schaeffer's uncharacteristic failure to keep track of the repayment of a personal loan, Schaeffer's concern that she did not have enough money to last the winter despite the sizeable balances in her accounts, and Schaeffer's weight loss despite having rotting groceries in the house. Schaeffer's pastor also noticed Schaeffer's confusion and poor hygiene. In addition, a bank teller recalled Schaeffer's visit to the bank with a grocery list, confused about whether she was in the right place.
Clark-Kreuer became so concerned about Schaeffer's memory and confusion that she would not let Schaeffer sign documents without a medical examination. Clark-Kreuer's assistant, Tammy Oswald, testified about Schaeffer's inability to recall any details about changing her estate planning documents at a previous appointment.
Bridgett Vermeesch, an Adult Protective Services Specialist with the Department of Health and Human Services, stated that Schaeffer could not recall her social security number, the President's name, or the date and time, and had difficulty recalling her birthday. Vermeesch was also concerned that Schaeffer had not seen a physician in around 20 years. After learning of the results of Schaeffer's neurology examination, Vermeesch successfully petitioned for a conservator to oversee Schaeffer's finances.
Darcy also testified about her concern for Schaeffer's ability to live on her own. Concerned about Schaeffer's increasing forgetfulness, Darcy paid her step-daughter to spend time with Schaeffer. Darcy cleaned Schaeffer's home by clearing extensive clutter, throwing away rotting food, and getting rid of dead mice. This testimony was sufficient to show beyond a reasonable doubt that Schaeffer was a vulnerable adult because it established that Schaeffer required supervision or personal care because of age, mental illness, or disability. In sum, viewing the evidence in the light most favorable to the prosecution, a rational jury could find, beyond a reasonable doubt, that Darcy obtained and used Schaeffer's money through unjust enrichment and that Schaeffer was a vulnerable adult.
Darcy argues that the prosecution's description of Schaeffer as "young" during closing argument was an admission that Schaeffer's decline was not age-related. The prosecution made this comment in the context of arguing that Schaeffer was a "vulnerable adult." The prosecution's point was that Schaeffer could live for several more years and faced the possibility of running out of money at the rate Darcy spent it. --------
C. VOID FOR VAGUENESS
Darcy next argues that the terms "vulnerable adult" and "mental illness" in MCL 750.174a(1) and MCL 750.145m(u)(i) are unconstitutionally vague and set no bounds for the jury's consideration of those terms. Darcy did not preserve this claim, so we review it for plain error. Carines, 460 Mich at 763-764. The void for vagueness doctrine stems from constitutional due process guarantees. People v Roberts, 292 Mich App 492, 497; 808 NW2d 290 (2011). A statute may be vague if it does not give notice of the prohibited conduct or if it is so indefinite that the fact-finder has unlimited discretion to decide whether the defendant has committed the offense. Id.
The statutory definitions and the trial court's instructions to the jury defining pertinent terms defeat Darcy's argument. The statute of conviction refers to the definition of a "vulnerable adult" in "section 145m, whether or not the individual has been determined by the court to be incapacitated." MCL 750.174a(15)(c). MCL 750.145m(u)(i) defines a "vulnerable adult" as "[a]n individual age 18 or over who, because of age, developmental disability, mental illness, or physical disability requires supervision or personal care or lacks the personal and social skills required to live independently." Thus, the statute provides specific guidance in determining who is a vulnerable adult.
Additionally, the trial court instructed the jury about the definitions of the terms "mental illness," "personal care," "vulnerable," and "exploitation." Darcy mounted no objection to these instructions in the trial court or on appeal. In sum, the jury had ample direction about how to determine whether Schaeffer was a vulnerable adult, and the statute was not unconstitutionally vague.
D. JURY INSTRUCTION
Finally, Darcy argues that the trial court erred by denying her request to instruct the jury that the prosecution was required to prove that Darcy acted with fraudulent intent. Jury instructions must state all of the elements and should include any defenses that find support in the evidence. McKinney, 258 Mich App at 162-163. We evaluate jury instructions as a whole to determine whether the trial court's instructions were erroneous. People v Kowalski, 489 Mich 488, 501; 803 NW2d 200 (2011).
In this case, the trial court instructed the jury about all of the elements of the offense. The trial court properly specified fraud, deceit, misrepresentation, coercion, and unjust enrichment as the five possible methods for using the money. By separating the five methods with an "or," the instruction signaled to the jury that it could find guilt on the basis of any one of the five. Thus, the trial court did not err by declining to instruct the jury about fraudulent intent, particularly because the prosecution proceeded on a theory of unjust enrichment, which it characterized as encompassing more behavior than fraud.
Darcy relies on People v Douglass, 293 Mich 388; 292 NW 341 (1940), to argue that the trial court should have included an instruction that the prosecution had to prove that Darcy acted with fraudulent intent. In Douglass, the 293 Mich at 391-392, our Supreme Court ruled that the trial court erred by failing to instruct the jury about fraudulent intent because it was an essential element of the embezzlement offense charged. That offense is distinguishable from the embezzlement charge in this case, MCL 750.174a(1), enacted and amended decades after Douglass. Further, MCL 750.174a(1) excludes the innocent receipt of money by requiring the defendant to obtain or use the money "through fraud, deceit, misrepresentation, coercion, or unjust enrichment." Therefore, the trial court properly instructed the jury accordingly.
We affirm.
/s/ Michael J. Talbot
/s/ Peter D. O'Connell
/s/ Colleen A. O'Brien