On Appeal from the 21 st Judicial District Court, In and for the Parish of Livingston State of Louisiana. Trial Court No. 27,344. Honorable Bruce C. Bennett, Judge Presiding.
Scott M. Perrilloux, District Attorney, Charlotte Herbert, Patricia Amos, Assistant District Attorneys, Amite, LA, Attorneys for Appellee, State of Louisiana.
S. Stephen Spring, II, Baton Rouge, LA, Attorneys for Defendant-Appellant, Gary Thomas Gorman.
Michael Andrew Betts, Denham Springs, LA.
BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ. Whipple, C.J. concurs in the result. McClendon, J. concurs in the result reached by the majority.
[2014 1108 La.App. 1 Cir. 2]
The defendant, Gary Thomas Gorman, was charged by bill of information with exploitation of the infirmed, a violation of La. R.S. 14:93.4. He pled not guilty and, following a jury trial, was unanimously found guilty as charged. The trial court sentenced the defendant to seven years imprisonment at hard labor. The defendant now appeals, designating the following seven assignments of error:
1) The trial court allowed the presently incompetent alleged victim to testify not under oath to display her present mental and physical condition to the jury over the defendant's objection, which served no probative value and prejudiced the jury before it heard any evidence regarding the competency of the victim from the dates of August 1, 2009, to May 7, 2011;
2) After allowing the unsworn testimony of the alleged victim, the trial
court informed the jury that her testimony was not to be considered as evidence
of anything relevant, but also instructed the jury to draw any inference about
victim's physical and mental infirmities as to the offense;
3) Defense counsel, although making an objection, was ineffective by not moving for a mistrial and failing to take emergency supervisory writs while allowing the trial to proceed with a tainted jury;
4) The trial court should have set aside the jury's verdict of guilty because there is no evidence in the record that during the time frame in the indictment the alleged victim was incompetent, but was fully competent and functional;
5) While the trial court instructed the jury the alleged victim was incompetent, it allowed the introduction by the State of a revocation of the power of attorney previously given by the victim to the defendant during the period the State claimed she was incompetent. The State claimed the victim was incompetent from August 1, 2009, and fully incompetent after the last date in the indictment continuously to the present day. The trial court allowed testimony that the incompetent victim was competent on the date she signed with her brother the revocation which occurred during the time frame the State claimed she was incompetent;
6) La. R.S. 14:93.4 requires sufficient evidence to prove the defendant intentionally used, took property of the victim without express voluntary consent or use of fraud or use of the alleged victim's power of attorney by use of fraud. The trial court prejudiced the jury by allowing the testimony of the alleged victim for the stated purpose of demonstrating her age; however, by instructing the jury that the victim was " incompetent" and allowing unsworn testimony, the trial court erred by unfairly and prejudicially instructing the jury the victim was incompetent and thereby, not only giving the prosecution an advantage or providing less evidence to the jury regarding the " incompetence" of the victim, but requiring the defendant to produce substantial evidence unfairly switching the burden of proof required for a conviction. Under either provision of proof " without express voluntary consent" or " power of attorney" by fraud, any evidence produced by the defendant was useless because of the prejudice of the jurors and errors of the trial court above;
[2014 1108 La.App. 1 Cir. 3] 7) Although the defendant was indigent, the trial court refused to determine same preventing any opportunity for him to file any motion for new trial, arrest of judgment, etc., despite these being clearly defined rights for all defendants.
For the following reasons, we affirm the conviction and sentence.
In 2011, seventy-three-year-old Gloria (also known as " Nancy" ) Cushing lived alone in her home in Watson, Louisiana. She had no children, and her husband, Arthur, had died in 1999. JoAnn Carr, Gloria's sister and closest living relative, lived about 200 miles away from Gloria in West Carroll Parish. JoAnn often tried to get Gloria to move to north Louisiana to be with her since Gloria was alone without family and was having physical problems, including being legally blind.
The forty-one-year-old defendant, who was from
Greenwell Springs, did some repair work on Gloria's home following Hurricane
Gustav in 2008. Over time, the defendant began visiting Gloria more often and
they became friends. Based on the testimony contained in the record, it appears
the defendant undertook somewhat of a caretaker role and began helping Gloria by
checking in on her, driving her around, laying down newspaper on her
floors for her dog, and repairing damage to her home
caused by fallen trees. Gloria became infatuated with the defendant and, for
some reason, thought that she and the defendant were going to get married.
According to JoAnn, Gloria was having some cognitive difficulties, but after Arthur died, Gloria's confusion and forgetfulness worsened. In February of 2009, Gloria was driving alone in Watson and wrecked her car. She suffered a severe head injury, broken arms, a broken leg, and broken pelvis. She was taken to a hospital in Zachary, then airlifted to Tulane Hospital, where she spent several weeks. She was moved from Tulane Hospital to Our Lady of the Lake Hospital, where she stayed for several weeks. From there, she was moved into Golden Age, a nursing home in Denham Springs. After several months in the nursing home, Gloria moved back to [2014 1108 La.App. 1 Cir. 4] her home in Watson. Following the car accident, the defendant looked after Gloria more often. Gloria stayed in her home until May of 2011, but because of her progressively worsening mental and physical condition, she was admitted to Ochsner Hospital. From the hospital, Gloria went back to the nursing home briefly. Then in October of 2011, Gloria moved to north Louisiana to be with JoAnn.
Before Gloria made her final move out of her home in Watson, JoAnn discovered Gloria had been giving money and property to the defendant from late 2009 to mid-2011. In early 2010, JoAnn contacted Elderly Protective Services, which investigated the matter. It was discovered that in September of 2009, Gloria had a last will and testament drawn up, leaving everything to the defendant. Gloria also had a power of attorney executed in July of 2010, naming the defendant as her agent. Subsequently, Gloria revoked that power of attorney and had a new one drawn up. In December of 2009, Gloria donated the two lots of land she owned on either side of her Watson home to the defendant. Also in December of 2009, Gloria gave the defendant $132,000. In August of 2010, Gloria took out two reverse mortgages on her home and gave most of those proceeds, $80,000, to the defendant.
Dr. Durwin Walker, Gloria's primary care doctor in Watson, testified that as early as December of 2009 (the first time he saw her after her car accident), Gloria had symptoms of dementia, which is a progressive, declining condition involving the loss of intellectual and cognitive function. When Dr. Walker saw Gloria in March and June of 2010, he made a note about her dementia on both visits, and he noted that she had recently suffered a stroke.
Robin Hatheway, the defense's expert in the area of registered nursing and psychiatric home care, testified that she reviewed Gloria's medical records, including those records for Gloria's home health care. Ms. Hatheway noted that when Gloria received home health care from August to October of 2009, the nurses did not make any notations of dementia, but did indicate " late effect cognitive [2014 1108 La.App. 1 Cir. 5] difficulties." Ms. Hatheway reviewed Dr. Walker's records of Gloria's office visit in December of 2009, wherein he noted dementia. When asked by defense counsel if she could tell from the doctor's records what was meant by that, Ms. Hatheway replied, " No. Because he didn't elaborate and he didn't prescribe any medications for dementia, and that's one of the things, if you get a diagnosis of dementia, you want to stop the progression of dementia."
The defendant did not testify at trial.
ASSIGNMENT OF ERROR NO. 4
In his fourth assignment of error, the defendant
argues the evidence was
insufficient to convict him. Specifically, the defendant
contends there is no evidence that Gloria was incompetent during the relevant
time frame, rather than being fully competent and functional.
When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. If viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could not reasonably conclude that all of the essential elements of the offense have been proved beyond a reasonable doubt, then the defendant may be entitled to an acquittal. Accordingly, we proceed first to determine whether the entirety of the evidence, both admissible and inadmissible, was sufficient to ...