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State v. Roberts

Court of Appeals of Oregon

January 16, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
KAILI JO ROBERTS, aka Kaili J. Roberts, Defendant-Appellant.

          Argued and submitted August 2, 2018

          Clatsop County Circuit Court 15CR49091; Philip L. Nelson, Judge.

          Eric Johansen, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          Greg Rios, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and Landau, Senior Judge.

         Case Summary:

         Defendant appeals a judgment of conviction for three counts of first-degree criminal mistreatment. She assigns error to the trial court's denial of her motion for judgment of acquittal. Defendant contends that the "legal duty to provide care" under ORS 163.205(1)(b) is limited to providing physical care and, therefore, she did not have a "legal duty to provide care" for her father when he authorized her to act pursuant to a general power of attorney. Held: The evidence permitted the trial court to find that defendant had a "legal duty to provide care" to the dependent victim because she had a fiduciary duty under the general power of attorney to manage the victim's finances. The legislature intended the statute to sanction the financial exploitation of an elderly or dependent person by a person under a legal duty to provide care, which includes a duty to serve as a faithful fiduciary when managing an elderly or dependent person's financial affairs pursuant to a general power of attorney.

         Affirmed.

         [295 Or.App. 671] DeVORE, J.

         The statute on first-degree criminal mistreatment, ORS 163.205(1)(b), sanctions a defendant who unlawfully takes or appropriates money or property from an elderly or dependent person if the defendant had a "legal duty to provide care" for the elderly or dependent person. After judgment of conviction on a number of offenses, defendant appeals the judgment regarding the three counts of first-degree criminal mistreatment. She assigns error to the trial court's denial of her motion for a judgment of acquittal, arguing that, for purposes of ORS 163.205(1)(b), she did not have a "legal duty to provide care" for her father when he authorized her to act pursuant to a power of attorney, regardless whether she unlawfully took or appropriated his money or property using that authority. Defendant contends that the "legal duty to provide care" under ORS 163.205 (1)(b) is limited to providing physical care. We disagree and, accordingly, affirm.

         When denial of a defendant's motion for a judgment of acquittal "centers on the meaning of the statute defining the offense," we review the interpretation of the statute for legal error. State v. Hunt, 270 Or.App. 206, 210, 346 P.3d 1285 (2015) (internal quotation marks and citation omitted). In determining the sufficiency of the evidence, we review the facts in the light most favorable to the state to determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Cunningham, 320 Or. 47, 63, 880 P.2d 431 (1994), cert den, 514 U.S. 1005 (1995).

         We provide a brief summary of the events giving rise to the issue on appeal, because the appeal reduces to a question of statutory interpretation. Defendant's father, the victim in this case, was taken to OHSU as a result of various health complications requiring surgeries. After the surgeries, he spent the next seven months in a nursing home and rehabilitation facility. Altogether, he was bedridden and unable to care for himself for about 10 months.

         While the victim was physically incapacitated in hospital care, he signed a power of attorney over to defendant [295 Or.App. 672] authorizing her to manage his financial affairs.[1] He gave power of attorney to his daughter because he "trusted her" and because she is "family." He had a conversation with defendant, telling her that he was concerned about his finances and to "pay my bills and stuff, and make sure everything-basically make sure everything gets paid." He did not ask her to open any new bank accounts or obtain any credit cards in his name, and she never asked him permission to do so. He did not ask her to make any cash withdrawals for him either. Defendant, however, used the authority granted by the power of attorney to withdraw thousands of dollars from his bank account without his consent, to open multiple fraudulent credit-card accounts, and to trade in his car for another car with defendant's name on the title. The victim's credit score dropped from 780 to 520 while defendant was caring for his financial affairs.

         Among other things, defendant was charged with three counts of criminal mistreatment in the first degree, ORS 163.205. To convict defendant of first-degree criminal mistreatment under ORS 163.205(1)(b)(D), the state had to prove that she (1) had a "legal duty to provide care" for an elderly person or dependent person or had assumed the care or supervision of the elderly or dependent person, and (2) intentionally or knowingly hid, took, or appropriated the elderly or dependent person's money or property for a use not in the due and lawful execution of defendant's responsibility. ORS 163.205(1)(b)(D); State v. Browning, 282 Or.App. 1, 3, 386 P.3d 192 (2016), rev den, 361 Or. 311 (2017).

         At the close of the state's case, defendant moved for a judgment of acquittal on the counts of first-degree criminal mistreatment, arguing that the state failed to prove that defendant had a "legal duty to provide care" to the victim within the meaning of ORS 163.205(1)(b), because the victim was in the physical care of medical professionals and defendant was not providing care for his physical needs.

         [295 Or.App. 673] Defendant contended, "To put it another way, [the victim] may have been a dependent person, but he was absolutely not dependent upon [defendant]" for his physical well-being. In defendant's view, the phrase "legal duty to provide care," as it is used in the first-degree criminal mistreatment statute, "does not mean a legal duty to provide financial care." The state countered that the phrase "legal duty to provide care" in ORS 163.205(1)(b) is not limited to persons providing "physical care" and includes the duty to provide financial care under a power of attorney. The trial court denied defendant's motion, concluding that "legal duty to provide care" includes a duty to serve as a faithful fiduciary when managing an elderly or dependent person's financial affairs pursuant to a power of attorney. The jury found defendant guilty on the criminal mistreatment counts, as well as other offenses.[2]

         On appeal, defendant renews her arguments made to the trial court. Defendant contends that a power of attorney does not establish a "legal duty to provide care," as required by ORS 163.205(1)(b). Defendant concedes that she had a "legal duty" to act in accordance with the terms of the power of attorney, but she argues that the "legal duty" created by a power of attorney did not create a "legal duty to provide care" within the meaning of ORS 163.205(1)(b). In her view, the legislature intended to limit the reach of the statute to situations involving physical care. Defendant contends that text, context, and legislative history of ORS 163.205 support her position.

         The state interprets the phrase more broadly. Also relying on the text, context, and legislative history of the statute, the state argues that violating a fiduciary duty created by a power of attorney violates a "legal duty to provide care." In the state's view, the legislature did not intend, after a series of amendments, to limit the "legal duty to provide care" to its original meaning once focused on physical caretaking.

         [295 Or.App. 674] The issue raised by the parties is narrow. It is a question of statutory interpretation about what the legislature intended in ORS 163.205(1)(b) when it used the terms "legal duty to provide care."[3] Specifically, the question is whether a person acting for a dependent or elderly person as an attorney-in-fact under the authority of power of attorney has a "legal duty to provide care" or whether, as defendant posits, the legislature intended to limit the "legal duty to provide care" to persons providing physical care. In construing a statute, we consider ...


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