People v. Layne
State: Illinois
Court: 5th District Appellate
Docket No: 5-96-0261
Case Date: 02/28/1997
NO. 5-96-0261
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
_________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS,) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) St. Clair County.
)
v. ) No. 94-CF-397
)
VICKYE LAYNE, ) Honorable
) Michael J. O'Malley,
Defendant-Appellant. ) Judge, presiding.
_________________________________________________________________
JUSTICE RARICK delivered the opinion of the court:
Defendant, Vickye Layne, was charged in the circuit court of
St. Clair County with financial exploitation of an elderly person
in violation of section 16-1.3(a) of the Criminal Code of 1961 (720
ILCS 5/16-1.3 (West 1992)). After a jury trial Layne was found
guilty and sentenced to three years' probation. On appeal, Layne
argues that the State failed to meet its burden of proof, that she
was deprived of her constitutional right against self-
incrimination, that the trial court erred in admitting testimony
regarding confidential interpersonal communications, and that the
trial court erroneously instructed the jury. We affirm.
Prior to trial, Layne filed a motion to suppress several
statements she had made to police. At the suppression hearing,
Officer Donald Sax testified that he took an oral statement from
Layne at Belleville police headquarters on January 19, 1994. Sax
interviewed Layne again on March 2, 1994, this time at her home.
He took a written statement which Layne looked at and signed. At
the time, Layne mentioned family problems with her son and husband.
Detective Joseph Stumpf testified that he took an oral statement
from Layne at Belleville police headquarters on May 11, 1994. He
reduced this statement to a writing, which Layne read and signed.
Layne testified that she had not read the statement given to Sax
because she needed glasses but did not have any. She signed it
after Sax read it to her. She did not read the statement given to
Stumpf because she did not have glasses. During the interview with
Stumpf, Layne expressed her concern at being away from her
grandchildren. Both were having medical problems, and she was
caring for them. She argued that such statements were not
voluntary because she did not have her glasses and could not read
them and because she needed to go home to care for her
grandchildren, one of whom had had eye surgery. The trial court
found that the statements were voluntary.
At trial Ruth Graswick, the victim, testified that several
years after her husband died, she contracted with A-1 Sitters,
which provided in-home assistance to elderly clients, to help her
with such things as cooking, cleaning, and shopping. One of the
women sent by the service was Layne. Graswick testified that she
liked and trusted Layne because she was so reliable.
In June 1992, Graswick was admitted to the hospital after
sustaining injuries as a result of a fall. Graswick requested
Layne to continue visiting her in the hospital. Graswick was
subsequently moved to the rehabilitation unit at Rosewood Care
Center, and later to the Columbia Convalescent Center, where she
remained at the time of trial. Layne continued to visit Graswick
at Rosewood.
Graswick gave Layne her checkbook and authorized Layne to
write checks to pay Graswick's bills. Graswick also authorized
Layne to write herself a check for $1,000 to compensate Layne for
various favors. Graswick specifically stated that she did not
authorize Layne to write any other checks to herself. Graswick was
unaware that Layne was writing other checks to herself. Following
Graswick's entry into a nursing home, Layne continued to purchase
items for her, but Graswick maintained that she gave Layne the
money to purchase such items. Graswick testified that she began to
notice that "things didn't seem to add up" and looked "fishy," and
that she asked her nephew, Stephen Jines, to look into it.
Stephen Jines testified that in March or April 1993 he learned
that Graswick's account had less than $1,000 in it although it
should have contained at least $21,000. He went to the bank and
looked at copies of the statements for the previous month or two.
Jines noticed considerable activity and obtained copies of the
checks drawn on Graswick's account. He noticed that many of the
checks were written by and made payable to Layne. When Jines
contacted Layne and asked to see her records, Layne claimed they
were at the tax return preparer's office. Later, Layne produced
some ledgers and receipts but claimed that the checks and check
stubs had been stolen. In October 1993, Jines spoke with Officer
Donald Sax at Belleville police headquarters. Jines told Sax that
Layne had written quite a number of checks, that there was quite a
bit of money missing, and that he felt that there was a theft
involved. Jines eventually demanded the return of $11,000 but
received no response from Layne.
Dr. Timothy Hipskind testified that he was Graswick's
attending physician at Rosewood. Graswick was admitted with a
diagnosis of compression fracture of the spine, degenerative
arthritis, hypertension, and hypothyroidism. Hipskind related the
fracture to osteoporosis. He also stated that these conditions
were all associated with advanced age. Hipskind also testified
that Graswick was on numerous medications, some of which could
cause confusion, but that he never observed any signs of confusion
or senility, and that Graswick was normally alert and responsive.
Hipskind further testified that Graswick was confined to a
wheelchair.
Gwenn Flach, the director of nursing at Rosewood, testified
that she was the charge nurse at Rosewood while Graswick was there.
Flach testified that all Graswick could do for herself was wash her
upper torso. She was totally dependent on others for everything
else. Flach testified that it took two people to move Graswick
from her bed to a wheelchair, and that while Graswick could
ambulate with a wheeled walker, she required two people to help
provide support. Flach also testified that Graswick was talkative
and never exhibited any signs of confusion. To Flach's knowledge,
Graswick never left Rosewood.
Edna Bristoe, the former operator of A-1 Sitters, testified
that sitters were specifically forbidden to handle client's money.
She also testified that Layne had quit shortly after Graswick went
into the nursing home.
Carla Pluff, an accountant, testified that Layne asked her to
prepare Graswick's 1992 tax returns. Layne claimed to have a power
of attorney for Graswick but never produced it. After Pluff filed
for an extension, Layne claimed she needed Graswick's tax records
and picked them up. Pluff never heard from Layne again.
Walter Layne, Vickye's former husband, testified that they had
filed joint tax returns for 1992 and 1993. These returns, signed
by Vickye Layne, were admitted into evidence. Walter Layne
testified that Vickye would report her income to him and he would
report it to a tax preparation service. In both 1992 and 1993
Vickye reported income from a horse farm she owned, and in 1992 she
reported income from A-1 Sitter Service. Vickye never reported any
income paid to her by Graswick.
Stephen Hampton, a documents examiner with the Illinois State
Police, testified that Layne had altered several checks signed by
Graswick and made out to Layne so as to greatly increase the
amounts of those checks.
Officer Donald Sax took a written statement from Layne at her
home on March 2, 1994. In this statement Layne stated that after
Graswick entered Rosewood, she stopped using A-1 Sitters, but Layne
continued to work for her at an agreed wage of $6.50 per hour.
Layne claimed that 33 checks written by Layne, payable to herself,
were to pay her salary and reimburse her for items she had
purchased for Graswick. She also claimed that most of the receipts
documenting her expenses were stolen by her son.
A second statement was taken by Detective Joseph Stumpf at
Belleville police headquarters on May 11, 1994. Prior to this
statement being taken, Stumpf had used a grand jury subpoena to
obtain, from the bank, photocopies of 67 checks totaling $27,152.42
drawn on Graswick's account and payable to Layne. Stumpf testified
that Layne went over those checks one by one and admitted
converting the proceeds of checks totalling $20,035.12. She
claimed that the remaining $7,117.30 was to reimburse her for
legitimate expenses. In her written statement Layne reiterated
that upon going into the hospital, Graswick had hired her to keep
her company, pay her bills, and purchase items for her. Layne
admitted writing numerous checks in 1992 and 1993, made payable to
herself, and using the proceeds to help improve her horse farm and
to meet her own family's needs. She stated that she felt bad about
using Graswick's money and felt that she owed Graswick about
$11,000. Layne felt that her salary should be about $5,000 to
$10,000. Layne specifically stated that she knew she did not have
permission to use Graswick's money for her own purposes. She
expressed regret for taking the money and claimed she could make
restitution.
Layne called numerous witnesses who testified as to Graswick's
mental alertness. Mary Weaver, the social service and admissions
director at Rosewood, testified that she never observed Graswick
confused or disoriented. Rebecca Schrauth-Fuljham, the social
services director at Columbia Convalescent Center, testified that
Graswick was confined to a wheelchair and required assistance with
dressing, bathing, and going to the bathroom. She found Graswick
alert, very talkative, and well oriented to person, place, and
time. She testified that Graswick was cooperative and intelligent
and had no memory or communication problems and had no problem with
her thought process, and that her attention and concentration were
good. Several times in 1994 and 1995, Graswick left the nursing
home to go shopping and to go out to eat, and she also left once to
go to the St. Louis Arch and once to go to the Missouri Botanical
Gardens. She testified that when residents went on these
"outings," they would go in a van equipped with a lift and a nurse
would accompany them.
Layne was found guilty, sentenced to three years' probation,
and ordered to make restitution.
On appeal, Layne argues first that the State failed to meet
its burden of proof. Specifically, she maintains that the State
failed to prove that Graswick was an elderly person as defined by
the statute or that a legal or fiduciary relationship existed
between herself and Graswick.
When the sufficiency of the evidence is challenged on appeal,
the appropriate inquiry is "`"whether, after viewing the evidence
in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond
a reasonable doubt."'" (Emphasis in original.) People v. Berry,
198 Ill. App. 3d 24, 28, 555 N.E.2d 434, 437 (1990) (quoting People
v. Collins, 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277 (1985)
(quoting Jackson v. Virginia, 443 U.S. 307, 61 L. Ed. 2d 560, 573,
99 S. Ct. 2781, 2789 (1979))). With this standard in mind, we turn
to an analysis of Layne's arguments.
Section 16-1.3(a) of the Code defines the offense of financial
exploitation of an elderly person as follows:
"A person commits the offense of financial exploitation of an
elderly person when he stands in a position of trust and
confidence with the elderly or disabled person and he
knowingly and by deception or intimidation 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 property." 720 ILCS 5/16-
1.3(a) (West 1992).
Section 16-1.3 requires the State to prove that the defendant (1)
stood in a position of trust or confidence with the elderly or
disabled person, (2) knowingly and by deception or intimidation
obtained control over the elderly or disabled person's property,
and (3) did so with the intent to permanently deprive the elderly
person of the use, benefit, or possession of his property.
Layne argues that the State failed to prove that she stood in
a position of trust or confidence with Graswick. What constitutes
a position of trust and confidence for purposes of section 16-1.3
is set forth in paragraph (c), which provides:
"(c) For purposes of this Section, a person stands in a
position of trust and confidence with an elderly or disabled
person when he (1) is a parent, spouse, adult child or other
relative by blood or marriage of the elderly or disabled
person, (2) is a joint tenant or tenant in common with the
elderly or disabled person or (3) has a legal or fiduciary
relationship with the elderly or disabled person." 720 ILCS
5/16-1.3(c) (West 1992).
Layne contends that the State failed to produce any evidence of a
legal relationship between herself and Graswick and failed to
produce clear and convincing evidence demonstrating that a
fiduciary relationship existed.
"A fiduciary relationship exists when one person places
trust and confidence in another who, as a result, gains
influence and superiority over the other. [Citation.] The
relationship may arise as a matter of law, such as between
agent and principal, or it may be moral, social, domestic, or
personal. [Citation.] The factors to consider in determining
whether a fiduciary relationship exists between parties ***
include the degree of kinship, the disparity in age, health,
mental condition, education, and business experience, and the
degree of trust placed in the dominant party. [Citation.]
The fiduciary is prohibited from seeking a selfish benefit
during the relationship. When the fiduciary relationship does
not arise as a matter of law, it must be proved by clear and
convincing evidence. [Citation.]" Kurtz v. Solomon, 275 Ill.
App. 3d 643, 651, 656 N.E.2d 184, 190-91 (1995).
In In re Estate of Glogovsek, 248 Ill. App. 3d 784, 618 N.E.2d
1231 (1993), this court held that a fiduciary relationship arises
where one person entrusts another with the management of property
or money. Glogovsek, 248 Ill. App. 3d at 792, 618 N.E.2d at 1238.
It is uncontested that Graswick gave Layne her checkbook so that
Layne could pay Graswick's bills. Further, Graswick was in her
late 70s, while Layne was in her mid-40s. Graswick's health was
such that she was confined to a nursing home, dependent upon others
to help her with basic life functions such as bathing and getting
out of bed. As the owner and operator of a horse farm, Layne
possessed business skills and expertise. Finally, Graswick
testified that she placed complete trust in Layne. We find that
the State produced clear and convincing evidence from which a
rational trier of fact could find that a fiduciary relationship
existed between Layne and Graswick.
Layne next argues that the State failed to prove that Graswick
was an "elderly person." The statute defines an "elderly person"
as:
"a person 60 years of age or older who is suffering from a
disease or infirmity associated with advanced age and
manifested by physical, mental or emotional dysfunctioning to
the extent that such person in incapable of avoiding or
preventing the commission of the offense." 720 ILCS 5/16-
1.3(b)(1) (West 1992).
To prove that Graswick was an "elderly person" for purposes of
the statute, the State was required to prove (1) that Graswick was
60 years of age or older, (2) that she suffered from a disease or
infirmity associated with advanced age, (3) that such disease
manifested itself by physical, mental, or emotional dysfunction,
and (4) that as a result of such dysfunction the person was
incapable of avoiding or preventing the offense.
Layne argues at length that her conviction cannot be sustained
because the evidence demonstrates that Graswick did not suffer from
any mental impairment. No such showing is necessary, however. The
use of the disjunctive in the phrase "manifested by physical,
mental or emotional dysfunctioning" (emphasis added) demonstrates
that the disease or infirmity associated with advanced age need
manifest itself in only one of those ways.
Dr. Hipskind testified that Graswick suffered a compression
fracture of the spine and suffered from degenerative arthritis,
hypertension, and hypothyroidism. He also testified that these
conditions were typical in a person of Graswick's advanced age.
Defendant offered no testimony to rebut this contention. Finally,
Hipskind testified that Graswick was confined to a wheelchair.
Gwenn Flach testified that it required two people to move Graswick
from the bed to a wheelchair, that it took two people to help her
shower, and that while Graswick could ambulate with a wheeled
walker, it took two people to assist her. Flach testified that
Graswick was totally dependent "on someone getting her in bed, out
of bed, putting her on the toilet, [and] taking care of her hygiene
needs." He stated, "She's dependent on everything ***." Layne
contends that Schrauth-Fuljham's testimony demonstrates that
Graswick was not so physically impaired that she could not prevent
the crime. The jury was entitled to accord this testimony little
weight, as it apparently did, because the offense in question took
place while Graswick was at Rosewood and Schrauth-Fuljham did not
meet Graswick until she was transferred to Columbia.
Layne next argues that the trial court erred in allowing her
statements to the police to be published to the jury. She
maintains that such statements did not constitute confessions
because all of the elements of the offense are not included
therein. She further argues that even if the statements were
confessions, they are insufficient to support a conviction because
the corpus delecti has not been corroborated by the evidence.
Reviewing the record, we find that at no time did the State
argue that either statement was a confession, even though the
second statement was so incriminating that it could fairly be
characterized as such. Any statement by an accused person, unless
excluded by the privilege of self-incrimination or other
exclusionary rules, may be used against him as an admission.
People v. Aguilar, 265 Ill. App. 3d 105, 110, 637 N.E.2d 1221, 1224
(1994). Although Layne contends that these statements violated her
privilege against self-incrimination, she advances no argument in
support of that contention. Points raised in a brief but not
argued or supported by citation to relevant authority are waived.
People v. Franklin, 167 Ill. 2d 1, 20, 656 N.E.2d 750, 758 (1995).
The trial court found the statements to have been made voluntarily,
and Layne does not challenge that finding on appeal. We find the
statements to have been properly admitted.
Layne next argues that the trial court erred in permitting
Walter Layne to testify about confidential communications that
occurred during their marriage. She maintains that any acts and
conversations between her and Walter Layne regarding employment and
wages were confidential in nature and protected by marital
privilege.
In Illinois, a husband or wife may testify for or against each
other in criminal cases, provided that neither may testify as to
any communication or admission made by either of them to the other
or as to any conversation between them during the marriage. People
v. Muzard, 210 Ill. App. 3d 200, 212, 569 N.E.2d 26, 32 (1991).
The privilege applies where communications were intended to be of
a confidential nature. People v. Foskey, 136 Ill. 2d 66, 89, 554
N.E.2d 192, 203-04 (1990) (citing People v. Sanders, 99 Ill. 2d
262, 457 N.E.2d 1241 (1983)); People v. Gardner, 105 Ill. App. 3d
103, 433 N.E.2d 1318 (1982). There is a presumption that
interpersonal communications are intended to be confidential, but
if it appears from the circumstances that confidentiality was not
intended, the communication will not be regarded as privileged.
People v. Murphy, 241 Ill. App. 3d 918, 924, 609 N.E.2d 755, 760
(1992). Thus, communications made in the presence of a third
person are generally not considered to be confidential. People v.
Simpson, 68 Ill. 2d 276, 280, 369 N.E.2d 1248, 1251 (1977).
While Vickye Layne's transmittal of income and expense
information to Walter Layne was not made in the presence of a third
person, it was clearly done in contemplation that such information
would be transmitted to a third person. The circumstances
demonstrated that the communications in question were not intended
to be confidential and therefore are not privileged.
Further, even if Walter Layne's testimony was in violation of
the marital privilege, any error was harmless. Walter Layne
testified that when Vickye gave him information about her income
for tax return preparation purposes, she did not report any income
from Ruth Graswick. The Laynes' 1992 and 1993 tax returns, signed
by Vickye Layne and admitted into evidence as People Exhibit 5,
provide the same information. The returns show that Vickye Layne
reported income from her horse farm and from A-1 Sitters but did
not report any income from Ruth Graswick. A violation of the
marital communication privilege is harmless when the same facts are
proved by other evidence. Muzard, 210 Ill. App. 3d at 213, 569
N.E.2d at 33.
Finally, Layne argues that the trial court erred in allowing
the addition of paragraph 6 of Illinois Pattern Jury Instructions,
Criminal, No. 13.33E (3d ed. 1992) (hereinafter IPI Criminal 3d),
which provides various definitions for the term "deception."
Defendant's proposed Instruction No. 5 included only paragraph
1 of IPI Criminal 3d No. 13.33E, which defines deception as
knowingly:
"creat[ing] or confirm[ing] another's impression which is
false and which the defendant does not believe to be true."
IPI Criminal 3d No. 13.33E(1).
The State moved to include paragraph 6, which defines "deception"
as knowingly:
"misrepresent[ing] or conceal[ing] a material fact relating to
the terms of a contract or agreement entered into with [(an
elderly)(a disabled)] person or the existing or preexisting
condition of any of the property involved in such contract or
agreement." IPI Criminal 3d No. 13.33E(6).
The trial court added paragraph 6 over Layne's objection.
Layne argues that there was no evidence of any contractual
relationship between herself and Graswick, and that the inclusion
of paragraph 6 was therefore improper.
It is well settled that both the State and the defendant are
entitled to appropriate instructions on any theory of the case that
is supported by the evidence. People v. Sims, 244 Ill. App. 3d
966, 1008, 612 N.E.2d 1011, 1042 (1993). Layne claimed in both
written statements that she had entered into a contract with
Graswick. This evidence would support a theory that Graswick had
agreed to pay Layne a salary and that Layne had deceived Graswick
by taking far more from Graswick's account than she was entitled.
The definition of deception provided in paragraph 6 was supported
by the evidence and properly given.
For the foregoing reasons, the judgment of the circuit court
of St. Clair County is affirmed.
Affirmed.
WELCH and MAAG, JJ., concur. NO. 5-96-0261
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
___________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS,) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) St. Clair County.
)
v. ) No. 94-CF-397
)
VICKYE LAYNE, ) Honorable
) Michael J. O'Malley,
Defendant-Appellant. ) Judge, presiding.
___________________________________________________________________________
Opinion Filed: February 28, 1997
___________________________________________________________________________
Justices: Honorable Philip J. Rarick, J.
Honorable Thomas M. Welch, J., and
Honorable Gordon E. Maag, J.,
Concur
___________________________________________________________________________
Attorneys Don W. Ward, Patricia H. Kievlan, Pessin, Baird, Wells &
for Ward, 105 North Illinois Street, P.O. Box L, Belleville, IL
Appellant 62222
___________________________________________________________________________
Attorneys Hon. Robert Haida, State's Attorney, St. Clair County, 10
for Public Square, Belleville, IL 62220
Appellee
Norbert J. Goetten, Director, Stephen E. Norris, Deputy
Director, Kevin Sweeney, Contractual Attorney, Office of the
State's Attorneys Appellate Prosecutor, Rt. 15 East, P.O.
Box 2249, Mt. Vernon, IL 62864
___________________________________________________________________________
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