Molina v. State

Ana Beti Molina and Javier Molina v. State, Nos. 2380 & 2537, Sept. Term, 2017, Opinion by Leahy, J. Evidence > Circumstantial Evidence Circumstantial evidence may be just as relevant as direct evidence, and our cases do not require any “greater degree of certainty [] when the evidence is circumstantial than when it is direct, for in either case the trier of fact must be convinced beyond a reasonable doubt of the guilt of the accused.” Hebron v. State, 331 Md. 219, 226-27 (1993) (internal citations omitted). Evidence > Circumstantial Evidence The significance of a single strand of circumstantial evidence may be unclear when isolated from the larger tapestry. See Sewell v. State, 239 Md. App. 571 , 614 n.12 (2018). To determine relevance, then, we must not view a piece of circumstantial evidence “in a vacuum, devoid of consideration of the other circumstances in the case.” Cf.

Smith v. State, 423 Md. 573, 590 (2011). Evidence > Defendant’s Financial Status > Special Circumstances There is a distinction of legal significance between offering evidence of a defendant’s impecuniosity to show motive for theft, and offering evidence of a defendant’s impecuniosity combined with other “special circumstances”—such as evidence that the defendant acquired money contemporaneously with the theft—to show that the money the defendant acquired was connected to the theft. Criminal Procedure > Joinder and Severance of Defendants > Discretion of Trial Judge Appellate review of a trial judge’s denial of separate trials is to resolve whether the trial judge abused the discretion endowed by Rule 4-253(c). Criminal Procedure > Joinder and Severance of Defendants > Prejudice Within the meaning of Rule 4-253, prejudice “is a term of art, and refers only to prejudice resulting to the defendant from the reception of evidence that would have been inadmissible against that defendant had there been no joinder.” Hines v. State, 450 Md. 352, 369 (2016) (citation and internal quotation marks and brackets omitted).

Thus, in the absence of non- mutually admissible evidence, a trial judge is not required to engage in the second part of the Hines analysis to “determine whether the admission of such evidence will unfairly prejudice the defendant seeking a severance.” Id. at 379 . Criminal Procedure > Inadmissibility of Evidence An appellant may not assert, as a ground for reversal, the inadmissibility of evidence when she elicited substantially the same evidence herself. See Miller v. State, 421 Md. 609, 629 (2011) (holding that the defendant’s cross-examination of the State’s expert witness “‘opened the door’ to the opinion that was elicited on redirect examination”). Criminal Procedure > Inadmissibility of Evidence > Cumulative Evidence Opinion testimony—even if admitted erroneously—that is cumulative of opinion evidence offered by several other witnesses may render the error undoubtedly harmless.

See Dove v. State, 415 Md. 727, 743-44 (2010) (“In considering whether an error was harmless, we also consider whether the evidence presented in error was cumulative evidence.”). Criminal Procedure > Jury Instructions > Accomplice Liability When there is no direct evidence of an alleged accomplice’s communications with the principal and, consequently, no direct evidence that the alleged accomplice communicated with the principal his willingness to participate in or lend support to her crimes, circumstantial evidence may satisfy the State’s burden to produce some evidence that the accomplice knowingly aided the principal in the commission of the crimes charged. Criminal Procedure > Jury Instructions > Accomplice Liability To generate a jury instruction on a defendant’s liability as an accomplice in another’s crimes, the State need not prove the defendant’s knowing participation beyond a reasonable doubt or even by a preponderance of the evidence. The State need adduce only some evidence that the defendant acted as an accomplice in the commission of the crimes charged.

See Arthur v. State, 420 Md. 512, 526 (2011). Criminal Law > Financial Exploitation of Vulnerable Adults Evidence that supports a jury’s findings, beyond a reasonable doubt, that the defendant knew or reasonably should have known that an individual was a vulnerable adult, or that an individual was at least 68 years of age; and, that the defendant “knowingly and willfully” exploited the individual by obtaining his or her property by deception, intimidation, or undue influence, is sufficient to support a conviction for financial exploitation. CR § 8- 801(b). Criminal Law > Theft > Required Knowledge Under each of the three theft modalities contained in section 7-104 of the Criminal Law Article—(1) unauthorized control over property, (2) unauthorized control over property by deception, and (3) possession of stolen property—the State is required to prove the defendant’s scienter—either that she “willfully or knowingly” deprived another of the property or that she knew the property was stolen.

Criminal Law > Conspiracy > Required Evidence The essence of a criminal conspiracy is an unlawful agreement, which “need not be formal or spoken, provided there is a meeting of the minds reflecting a unity of purpose and design.” Mitchell v. State, 363 Md. 130, 145 (2001) (citations omitted). To prove conspiracy, the State may rely on “circumstantial evidence, from which a common scheme may be inferred.” Hall v. State, 233 Md. App. 118, 138 (2017). The State does not have to show an “overt act in furtherance of the agreement” because the conspiracy “is complete when the unlawful agreement is reached[.]” Bordley v. State, 205 Md. App. 692, 723 (citation and internal quotation marks omitted). Criminal Law > Conspiracy > Multiple Convictions In Maryland, “only one sentence can be imposed for a single common law conspiracy no matter how many criminal acts the conspirators have agreed to commit” because the “unit of prosecution [for conspiracy] is the agreement or combination rather than each of its criminal objectives.” Tracy v. State, 319 Md. 452, 459 (1990).

The conviction of a defendant for more than one conspiracy turns, therefore, “on whether there exists more than one unlawful agreement.” Savage v. State, 212 Md. App. 1, 13 (2013). “If a defendant is convicted of and sentenced for multiple conspiracies when, in fact, only one conspiracy was proven, the Double Jeopardy Clause has been violated.” Id. at 26 . Circuit Court for Montgomery County Case Nos. 131134C & 131135 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND CONSOLIDATED Nos. 2380 & 2537 September Term, 2017 ______________________________________ ANA BETI MOLINA v. STATE OF MARYLAND JAVIER MOLINA v. STATE OF MARYLAND ______________________________________ Kehoe, Leahy, Adkins, Sally D., (Senior Judge, Specially Assigned), JJ. ______________________________________ Pursuant to Maryland Uniform Electronic Legal Materials Act Opinion by Leahy, J. (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2020-02-14 09:48-05:00 ______________________________________ Filed: December 23, 2019 Suzanne C. Johnson, Clerk TABLE OF CONTENTS BACKGROUND The Indictments ………………………………………………………………………… 4 Pre-Trial Motions ………………………………………………………………………. 5 Trial ……………………………………………………………………………………... 6 A. The Molinas …………………………………………………………………... 6 B. Gustave Shapiro ………………………………………………………………..6 C. Ana Assumes the Care of Gustave ……………………………………………. 9 D. Dementia and Other Diagnoses ……………………………………………… 15 E. A Second APS Investigation in 2015 …………………………………………17 F. The House on Wilton Oaks……………………………………………………21 G. The Third APS Investigation in 2016………………………………………… 25 H. End-Stage Dementia ………………………………………………………… 32 I. Additional Financial Evidence……………………………………………….. 34 J. Motions for Judgment of Acquittal ………………………………………….. 40 K. The Defense…………………………………………………………… ……. 41 L. Renewed Motions for Judgment …………………………………………….. 42 Verdict and Sentencing ……………………………………………………………….. 44 DISCUSSION I. Evidence of Gambling and the Molinas’ Financial Status …………………… 47 A. Motions in Limine ……………………………………………………….. 47 B. Parties’ Contentions on Appeal ..………………………………………… 49 C. Gambling and Finances: Special Circumstances ………………………… 50 II. Motion to Sever ……………………………………………………………… 60 A. Pre-Trial Ruling ………………………………………………………….. 62 B. Analysis ………………………………………………………………….. 63 III.

Lay Opinion Evidence……………………………………………………….. 67 A. Motion in Limine ………………………………………………………… 68 B. Testimony on Duty of Fiduciary ………………………………………… 69 C. Testimony on Gustave’s Capacity ……………………………………….. 70 IV. Accomplice Liability ………………………………………………………… 72 V. Sufficiency of the Evidence Against Ana ……………………………………. 78 VI. Sufficiency of the Evidence Against Javier …………………………………. 88 A. Financial Exploitation …………………………………………………… 88 B. Theft Scheme …………………………………………………………….. 91 C. Conspiracy ……………………………………………………………….. 96 VII. The State’s Rebuttal Closing Argument ……………………………………. 101 i Gustave Shapiro, a widowed nonagenarian, depended on others for his transportation and daily care—he was a vulnerable adult.1 In 2016, Montgomery County Adult Protective Services (“APS”) removed Gustave from the house in which he was residing with Ana Beti Molina and her husband, Javier Molina (the “Molinas” or “Appellants”).

He died from severe dementia just one week later, at the age of 99. A grand jury in Montgomery County indicted the Molinas on several charges relating to their financial gains from Gustave, including theft scheme, financial exploitation of a vulnerable adult, and financial exploitation of a person over 68 years old. The couple stood trial, as co-defendants, before a jury in the Circuit Court for Montgomery County. At trial, the evidence revealed that Ana was hired in 2012 to clean Gustave’s house after his wife passed away.

Within months, Gustave became estranged from his only living son, Dana Shapiro, and Ana gained control of Gustave’s medical care and finances. Over defense objections, the State introduced evidence that the Molinas declared income 1 The Maryland Code defines “vulnerable adult” as “an adult who lacks the physical or mental capacity to provide for the adult’s daily needs.” Criminal Law Article, § 3- 604(a)(10). Section 8-801(b)(1) of the Criminal Law Article prohibits the exploitation of a person who meets the definition of a vulnerable adult. Subsection (b)(2), added in 2009, expanded the prohibition against financial exploitation of individuals who are at least 68 years old.

More recently, the 2016 Justice Reinvestment Act altered the penalties for financial exploitation of a vulnerable adult. See SB 1005 (2016). One of the most significant risk factors for exploitation is cognitive impairment of the vulnerable adult. Kevin E. Hansen et al., Criminal and Adult Protection Financial Exploitation Laws in the United States: How Do the Statutes Measure Up to Existing Research?, 42 Mitchell Hamline L. Rev. 897, 898 (2016).

Studies show that more than a third of elderly individuals have some type of disability, “i.e., difficulty in hearing, vision, cognition, ambulation, self-care, or independent living,” and that with increased age comes an increased need for caregiving. ADMIN. FOR CMTY. LIVING, 2018 PROFILE OF OLDER AMERICANS 14, 15 (2018). between $26,000 and $68,000 from 2012 to 2016, along with evidence that the Molinas, primarily Javier, suffered gambling losses of more than $200,000 from 2011 to 2016.

Also, between 2012 and 2016, $450,000 was withdrawn from Gustave’s bank accounts to purchase a new vehicle for the Molinas and a new house in which the Molinas lived with Gustave. Neither the house nor the car had accommodations for Gustave, who was wheelchair-bound. More than $60,000 was withdrawn to pay college tuition for the Molinas’ daughter, and another $60,000 was withdrawn from ATMs near two casinos where Javier gambled. The jury found each of the Molinas guilty of theft scheme, two counts of financial exploitation, and conspiracy to commit these crimes.

Separately, the jury found Ana guilty of two counts of misappropriation by a fiduciary. Ana and Javier appealed and each presented four issues for our review, which we have consolidated, reordered, and rephrased as follows: I. Did the circuit court err or abuse its discretion by permitting evidence of the Molinas’ financial circumstances and Javier’s gambling?

II

Did the circuit court err by denying Ana’s motion to sever her trial from Javier’s?

III

Did the circuit court err by allowing opinion evidence by one of Gustave’s attorneys?

IV

Did the circuit court err in instructing the jury on accomplice liability? V. Was the evidence sufficient to convict Ana of financial exploitation?

VI

Was the evidence sufficient to convict Javier of financial exploitation, theft scheme, and conspiracy?

VII

Did the circuit court err by permitting impermissible rebuttal argument by the prosecution? 2 The statute featured in this case, Maryland Code, Criminal Law Article (“CR”), § 8- 801 was enacted by the General Assembly in 2002 to prohibit the financial exploitation of vulnerable adults, and then amended in 2009 to include a prohibition against the financial exploitation of individuals who are at least 68 years old. See SB 646 (2002); HB 559 (2002); SB 304 (2009); HB 583 (2009). As Delegate Kramer, the sponsor of House Bill 583, wrote in 2009, “The financial exploitation of the elderly is a significant problem and perhaps the fastest-growing crime in the nation.”2 Our appellate courts have had few opportunities to consider CR § 8-801; indeed, the sole reported opinion discussing the statute, Tarray v. State, 410 Md. 594 (2009), pre-dates the 2009 amendment and examines only the prohibition against the financial exploitation of vulnerable adults. The case before us is the kind that the General Assembly intended to address when it enacted the financial exploitation statutory scheme.3 As is common for many vulnerable 2 The bill file for House Bill 583 from the 2009 session contains a letter from the Maryland Department of Aging, stating that “[f]inancial fraud is the fastest growing form of elder abuse” but “the incidence and impact of exploitation are difficult to measure because there is no national reporting mechanism, cases are too frequently unreported, definitions vary and the crimes are difficult to detect.” See Bill File for HB 583 (2009) (available at the Department of Legislative Services Library). 3 Recognizing the inability of many victims of financial exploitation to defend themselves, the General Assembly passed additional legislation in 2016 and 2018 authorizing divisions of the Office of the Attorney General to bring a civil action for damages against violators of CR § 8-801 on behalf of the victim or the victim’s estate.

See HB 718 (2016) (amending Maryland Code (2013 Repl. Vol., 2015 Supp.), Commercial Law Article, § 13-204); HB 1506 (2018) (amending Maryland Code (2014 Repl. Vol., 2017 Supp.), Corporations and Associations Article, § 11-209). The Fiscal and Policy Note for HB 1506 reported that the circuit courts saw 121 violations of CR § 8-801 (resulting in 24 guilty dispositions) in 2017, likely motivating the expansion of the number of divisions within OAG that can bring the civil actions. 3 adults, Gustave’s cognitive impairment, caused by his worsening dementia and advanced age, prevented him from appreciating the financial abuse at the time.

Although the evidence of the Molinas’ intent to commit financial exploitation was largely circumstantial, we hold that it was more than sufficient to support the jury’s verdicts. Finding no error or abuse of discretion in the trial court’s rulings, we affirm the jury’s verdicts, but remand Javier’s case to the circuit court to vacate one of his two conspiracy convictions. BACKGROUND The Indictments On February 2, 2017, a grand jury sitting in Montgomery County returned indictments against Ana and Javier, respectively. As relevant to this appeal,4 the first six counts in each indictment were for crimes against Gustave: (1) theft scheme over the value of $100,000 in violation of Maryland Code (2002, 2012 Repl.

Vol., 2017 Supp.), CR § 7- 104; (2) conspiracy to commit theft scheme over the value of $100,000; (3) financial exploitation, value over $100,000, of an adult over 68 in violation of CR § 8-801(b)(2); (4) conspiracy to exploit a vulnerable adult: value over $100,000; (5) financial exploitation, value over $100,000, of a vulnerable adult in violation of CR § 8-801(b)(1); and (6) 4 The grand jury also indicted both Ana and Javier on eight additional counts for crimes against the United States Department of Housing and Urban Development (“HUD”), false statements affecting housing assistance, and crimes against the Maryland Department of Health and Mental Hygiene (“DHMH”). 4 conspiracy to exploit a vulnerable adult: value over $100,000.5 Ana was also charged with two counts of misappropriation by a fiduciary. Pre-Trial Motions Four pre-trial motions are relevant to this appeal. They are treated fully in the discussion but outlined here for context. First, on April 28, 2017, the court granted a motion by the State, over the defendants’ objections, to consolidate the cases against Ana and Javier.6 The court revisited this issue later in response to Ana’s motion to sever the cases and reaffirmed its earlier ruling.

The Molinas, through two motions in limine, moved to exclude evidence of their gambling and financial status. They urged the court to bar the evidence because it was irrelevant and unduly prejudicial. The State responded that the gambling records were relevant both to show motive and to show where the money went—a fundamental element of the theft charges. The circuit court denied the Molinas’ motions to suppress the 5 The date range for Counts 1-5 on both indictments was “on or about and between September 2, 2012, through September 13, 2016.” The date range for Count 6 on both indictments was “on or about and between November 11, 2014, through February 5, 2015.” 6 Following a hearing on May 26, 2017, the court granted the Molinas’ motions to sever the counts relating to Gustave from the other counts relating to HUD, DHMH and Medicaid fraud.

Ana had also moved to dismiss Counts 4 and 6 as multiplicitous because both alleged conspiracy to commit financial exploitation of a vulnerable adult, with the only difference being the date range. The issue became moot when, at the hearing, the State nolle prossed Count 6 for conspiracy to commit financial exploitation of a vulnerable adult, in an amount over $100,000, between November 11, 2014 and February 5, 2015. Subsequently, on July 13, 2017, the State entered a nolle prosequi for the corresponding count against Javier (also Count 6). 5 gambling evidence, granted Javier a continuing objection on the issue, and ultimately allowed the State to introduce evidence of the Molinas’ financial circumstances. In a fourth pre-trial motion, the State sought to prohibit Elizabeth Goldberg, an attorney, from offering opinion testimony at trial as to Gustave’s capacity to execute legal documents.

The court denied the State’s motion. Trial The Molinas’ trial took place over eight days between November 13 and 27, 2017. The State called 26 witnesses to testify. The following account is derived from the evidence adduced at trial, viewed in the light most favorable to the State.

A. The Molinas Ana and Javier were married with three children. In 2012, their oldest child, Janesse, was 22, and their two minor children were 17 and 14 years old. The Molinas lived in a three-bedroom apartment in Montgomery County from 1996 through 2015. Their rent for that apartment, from 2010 until they moved out, was $484 per month.

Javier worked at a car wash that paid him between $20,000 and $48,000 per year. He also declared about $43,000 in income from gambling between 2013 and 2016. Ana cleaned houses for a living, although she did not declare any income on her Maryland tax returns aside from an amount less than $8,000 earned from gambling between 2014 and 2016. She began working for Gustave in September 2012.

B. Gustave Shapiro Gustave was born in July 1917. He eventually married Ruth, and the couple adopted two sons, Dana and Marvin. Marvin would pre-decease his parents but, before he died, he 6 had a falling out with Gustave that caused Gustave to disavow Marvin. Dana, on the other hand, maintained a relationship with Gustave until September 2012.

Gustave worked as an electronics engineer for the federal government until his retirement. He owned a house on Munsey Street in Silver Spring where he lived with Ruth. In addition to the retirement income he received in the form of pension and Social Security payments, Gustave owned treasury bonds that reached maturity between April 2012 and June 2013. The income from these treasury bonds brought Gustave’s bank account ending in -7829 to a balance of $1.9 million.

As far back as 2004, Gustave had trouble getting around and required the assistance of a walker. He did not drive or like to take taxis, so Dana drove his parents around on their errands, normally about twice a week. Gustave bought Dana a used sedan that accommodated Gustave’s and Ruth’s physical disabilities for around $22,000. According to Dana, Gustave was frugal, had a strict budget, and “was adamantly against gambling.” Gustave “never had a credit card, never would use a credit card[,]” and stopped investing in treasury securities after they went paperless because he felt his information and money would be exposed to hackers.

From 2004 to 2012, Dana would have to drive Gustave regularly to the bank because Gustave did not have a debit card or use ATMs to withdraw cash. He also paid his bills by check. By 2012, Dana began to observe his father experience delusional thinking. For instance, Gustave believed that his dead lawn had been poisoned by his neighbors in retaliation for a derogatory remark Gustave made 25 years earlier.

Gustave also struggled to remember Dana’s telephone number despite how frequently he had called over the years. 7 Between 3:00 and 4:00 a.m. on September 2, 2012, Gustave called Dana because he could not wake Ruth and did not think she was breathing. Gustave said he had not called 911 because he would not have had a way to follow the ambulance to the hospital without Dana. Dana beat the paramedics to his parents’ house and found his mother unresponsive by her bed. Doctors were unable to resuscitate Ruth.

Dana began to see his father daily. According to Dana, his parents had been inseparable, and his father became very lonely and needy after Ruth died. Dana had a pre- planned vacation set for two weeks after his mother’s passing, so he sought help to care for his dad while he was gone. Dana hired Ana, who came on a recommendation from his brother-in-law, Lloyd Flynn, to clean Gustave’s house and look after him.

Ana cleaned the homes of Mr. Flynn and Mr. Flynn’s mother, and she continued to do so until the early part of 2015. Both Mr. Flynn and his mother paid Ana $200 each time she cleaned. Dana, for his part, was “absolutely” satisfied with Ana’s work when he returned from his trip—he “thought that she was very good at what she did.” According to Dana, Ana was also better than he was at convincing Gustave to do things such as routine “hygiene” and “purchasing a new mattress for the bed which was severely soiled.” Dana thought Gustave paid Ana too little and convinced his father to add an extra $20 the first time he paid her. Soon after Ana began working for Gustave, Gustave claimed there was a box missing from under his kitchen table and thought either Dana or Ana took it.

Gustave brought up the box with Dana when they went to lunch on the day after Thanksgiving. He became “extremely irate and angry” with Dana, accusing him of stealing the box. Gustave 8 demanded that Dana turn over his key to Gustave’s house, or else, Gustave would call the police. Dana testified that he didn’t know what his father was talking about; regardless, he returned the key, not wanting to make a scene.

After that Gustave refused Dana’s calls. Dana tried to call his father “[f]or well over a year” and also went by the house “[m]any times,” but his father would either ignore his knock or slam the door and not let him in. Ana told Dana that she also had to stop talking to him, or else, Gustave said she would be fired. C. Ana Assumes the Care of Gustave 1.

Large Banking Transactions Begin in 2013 After September 2012, with Dana no longer taking Gustave on his errands, Ana took over. The errands involved mainly trips to Gustave’s doctors and his banks. Ana would take Gustave to the local branches of Wells Fargo Bank and Capital One Bank about once a month. On June 13, 2013, Gustave and Ana opened a checking account and high-yield savings account at Wells Fargo, listing Gustave as the primary account holder and Ana as the secondary account holder.

About a month later, Ana opened another checking account and high-yield savings account with Wells Fargo in her own name. Four days later, on July 22, a withdrawal of $9,900.47 from Gustave’s account was deposited into Ana’s personal account. Subsequent $300 deposits into Ana’s account followed withdrawals from Gustave’s account. Then, on August 10, Gustave and Ana went to Capital One with Janesse Molina and drew a cashier’s check from Gustave’s account in the amount of 9 $26,977.45 to pay for Janesse’s college tuition at New York School of Visual Arts.

Gustave withdrew another $37,242 for college tuition the following year. The size of the transactions continued to increase. On September 9, 2013, a withdrawal of $50,000 from one of Gustave’s accounts at Capital One caused Sophia Alhalaseh, an employee at the branch office in Wheaton, to refer Gustave to APS. Ms. Alhalaseh’s supervisor instructed her to call APS because Gustave typically transacted only about $5,000 per month, so the $50,000 withdrawal marked a significant change in the nature of his transactions.

Ms. Alhalaseh had never seen Javier. Bank records show that, on the same day, September 9, a cashier’s check in the amount of $300,000 was drawn from a Capital One account held solely by Gustave. The $300,000 cashier’s check was then deposited into an account at Wells Fargo (ending in - 9261) held jointly by Ana and Gustave that had been opened three days earlier. 2. First APS Investigation in 2013 Julia McGlamary is a social worker with APS who investigates allegations of abuse, neglect, and financial exploitation of vulnerable adults in Montgomery County.

On October 11, 2013 she began an investigation into whether Gustave was being financially exploited. When she attempted to conduct a home visit at the Munsey Street address, on October 15, no one answered the door. While still on the doorstep, Ms. McGlamary called Gustave, who told her she could not come inside, he was well taken care of, and he didn’t need her services. Two days later, Ms. McGlamary had a second, lengthier phone conversation with Gustave, during which he denied her services again.

Gustave explained that he had hired a caregiver, a 45-year-old married woman with three children, to care for 10 him two to four days a week, and that her care included helping with grocery shopping, cleaning the house, and running errands. Gustave also told Ms. McGlamary that seeing his caregiver with her husband and kids made him feel as if he were part of their family. Ms. McGlamary spoke with a bank manager at Capital One on October 24. In regard to the transaction that triggered the investigation, Ms. McGlamary explained that she “was informed that money was being transferred in cash withdrawals from a Capital One account to a Wells Fargo account,” and that Gustave was the owner of both accounts.

A few days after the phone call with Capital One, Ms. McGlamary called Ana and scheduled an in-person meeting with Gustave for November 4. At the meeting, Gustave’s home was clean and tidy. Gustave appeared to be oriented to person, place, and time. He completed a daily-living assessment during their meeting, scoring a 24 out of 30.

Ms. McGlamary explained at trial that a score of 24 indicates that the subject has some difficulty and needs assistance with completing some tasks for daily living. The tasks with which Gustave required assistance were grocery shopping, transportation, housekeeping, taking his medications, and paying some of his bills due to problems he had with use of his hands. Gustave also scored a 14 out of 15 on a brief Mental Status exam that Ms. McGlamary administered. She explained that the score indicated Gustave likely had the capacity to make his own decisions at the moment in time that the test was administered.

According to Ms. McGlamary, Gustave’s demeanor during the meeting was “fluctuat[ing] very quickly between being agitated and very angry and then being very calm.” Gustave told Ms. McGlamary that he had a caregiver, Ana, but refused to disclose how much he paid her. He did tell her, however, that he paid the private-school tuition for 11 one of Ana’s daughters. Gustave mentioned that he never wanted to leave his home on Munsey Street. He also told Ms. McGlamary that he threw his son out of his house because Dana had been “robbing [him] blind” and there were expensive tools and important documents missing—although, Gustave could not identify what they were.

After Ms. McGlamary met with Gustave and confirmed the information concerning the two different banks, APS closed the investigation on November 24, 2013.7 3. More Power and Money Banking Transactions Just three days after APS concluded its investigation, on November 27, 2013, another withdrawal of $50,000 was made from Gustave’s account at Capital One. Although Gustave never had a debit card associated with his accounts, Ana requested one. Then, on December 30, Ruth’s name was removed from a Capital One account ending in - 7829 and Ana’s name was added.

Also on December 30, bank records show that the $300,000 that had been deposited on September 9 into Ana and Gustave’s Wells Fargo account ending in -9261 was withdrawn and deposited into a Wells Fargo account held solely in Ana’s name. Three days later, Ana and Gustave transferred $1.3 million from the Capital One account ending in -7829 into a new account, opened under both names, ending in -7237. 7 Ms. McGlamary also testified that she never met Javier and that his name never came up during the investigation. 12 In April 2014, Ana was added to several other bank accounts that Gustave owned and she was named as a beneficiary on all of the accounts. Later that September, she was added as a co-lessee on one of Gustave’s Capital One safe deposit boxes. Powers of Attorney In early 2014, Ana and Gustave met with Elizabeth Goldberg, an elder-law attorney.

The first meeting took place in a car in front of Ms. Goldberg’s home office because Gustave did not want to get out of the car. The second meeting was at the office of Robert Moses, a title attorney. Ms. Goldberg, who testified at trial, explained the purpose of the second meeting: [Gustave] had wanted to have[] a revocable trust and some other documents prepared to give money to Ms. Molina. And then we were trying to come up with something that would . . . provide for him during his lifetime[.] You know, there was a little bit of confusion on his part[.] You have to have enough money for your own lifetime.

So, he was very fixated on having it go to her, but[] Mr. Moses and I were trying to come up with a way to make sure [] that she could work with him but without[—w]e thought maybe he wasn’t thinking fully about his own needs. He was still alive. He was going out, needed to be provided for . . . without worrying about the future when he was gone. So we prepared a power of attorney, healthcare power of attorney and a deed. . . .

After the meeting, Ms. Goldberg prepared a power of attorney and a healthcare power of attorney. Gustave executed both on March 14, 2014, in front of a witness and notary. Ms. Goldberg testified that she “talked to both [Gustave and Ana] about what was entailed . . . to spend money as noted on Mr. Shapiro’s behalf.” Concerned about whether APS had visited Gustave’s house, Ms. Goldberg called APS herself. When APS informed her its investigation was closed, she still “didn’t feel completely secure one way or another” and “didn’t feel 100% comfortable with it.” But she “just made a judgment” to go forward 13 with the transaction because she believed that Gustave “seemed to understand” the nature of the documents.

Ms. Goldberg testified at trial that she did not know Javier, and his name was not on any of the documents she prepared. A New Toyota Highlander On April 28, 2014, a cashier’s check for $50,000 was drawn from one of Gustave’s accounts, made payable to Ana Molina. Three days later, the Molinas paid $35,481.50 (plus a trade-in vehicle valued at $8,000) to purchase a 2014 Toyota Highlander from Darcars in Montgomery County. The vehicle did not include any modifications to make it handicap accessible.

Ana’s and Javier’s names were on the sales invoice and title for the vehicle; Gustave’s name was not on either document. At trial, Mr. Flynn (Dana’s brother- in-law) testified that Ana told him that Javier’s employer purchased the vehicle for Javier. The 2014 Will and Deed to the House That September, Gustave met with Daniel Steven, an estate attorney. Mr. Steven had met with Gustave and Ruth previously in 2011, and again in 2012 before Ruth died.

Ruth and Gustave hired Mr. Steven to draft a joint revocable trust and ‘pour-over wills.’8 Both of the wills and the trust listed Dana as the beneficiary and were designed to ensure 8 At trial Mr. Steven explained that a will was technically not necessary because the trust is intended to be “the primary vehicle to transfer property when someone dies[.]” But to dispose of property through a trust, the client must title all property in the trust’s name. And because “clients are not always totally compliant and sometimes [] don’t title everything in the name of the revocable trust,” the pour-over will acts as “a backup plan . . . that says that anything that is still titled in the name of the client rather than in the name of the trust, gets poured over into the trust, so you end up with everything in trust, which is the plan.” 14 that the couple’s assets went to Dana when the surviving spouse died. The wills were never executed. When Mr. Steven met with Gustave again on September 3, 2014, Ana accompanied Gustave.

On a video recording, which was played for the jury at the Molinas’ trial, Gustave can be seen executing the will. The 2014 will designated Ana as the personal representative of Gustave’s estate, gave Ana all Gustave’s personal property, and bequeathed to Ana the residuary estate. The will also set out explicitly, “The omission of my child, Dana Shapiro, from the provisions of this Will is intentional on my part and is done with my full knowledge.” In addition to the will, Mr. Steven drafted, and Gustave executed, a new deed on the Munsey Street property. For no consideration, the deed granted Ana the property in fee simple subject to a life estate in Gustave.

D. Dementia and Other Diagnoses All this time, Ana continued to take Gustave to his various appointments with doctors and specialists at Kaiser Permanente (“Kaiser”). On September 23, 2014, she brought Gustave to a follow-up appointment with the cardiology department. Dr. Joseph Joson diagnosed Gustave with congestive heart failure, cardiomyopathy, history of atrial fibrillation, a failure to thrive (based on 13-pound weight loss), hypotension, bradycardia (due to too much heart medication), and an enlarged prostate. He recommended palliative care for Gustave.

At a follow-up appointment three days later, Gustave’s primary-care provider, Dr. Adrian Hurley, discussed the possibility of moving Gustave to an assisted-living facility but Gustave did not want to go. Dr. Hurley’s notes reflect that Gustave was alert and 15 oriented that day. Still, Dr. Hurley referred Gustave to Dr. Andrew Dutka, a neurologist with Kaiser, because Gustave had abnormal thought processes and relayed non-sequiturs during appointments. Accordingly, Dr. Dutka saw Gustave for an office visit on September 29, 2014— three weeks after Gustave signed the will in Mr. Steven’s office.

Gustave was not able to say why he was seeing a neurologist. Although Gustave knew what month it was and that he was in a doctor’s office, he did not know which doctor’s office or the year. Gustave also misstated his age, and Ana had to correct him. Dr. Dutka noted that Gustave couldn’t remember a neck surgery he’d had and also repeated the same story several times.

Dr. Dutka found notes in Gustave’s file indicating that he had seen a neurologist in 2006 because he was suffering from memory loss and gait disturbance. The file also contained an MRI report that showed atrophy and white matter in Gustave’s brain, which was consistent with dementia without necessarily indicating the presence of the disease. Gustave could not “start gaits” or “get his feet to move off the floor” without assistance. This led Dr. Dutka to believe that Gustave had gait apraxia, which he described at trial as a brain disorder that affects a person’s ability to coordinate movement or push his or her foot off the floor.

Dr. Dutka diagnosed Gustave with mild senile dementia, which he described as “chronic or evolving over months rather than a sudden loss of cognitive ability” in someone who is over 65 and still has many of his faculties. When asked which day-to-day activities are affected by that diagnosis, Dr. Dutka explained: “Generally, those [] activities [t]hat are called instrumental activities of daily living[,] which include things like managing 16 finances, taking care of appointments, [] stocking the refrigerator and doing other things around the home.” Dr. Dutka characterized the condition as mild, however, due to “the description of [Gustave] being able to read and dress himself and shower without assistance[,] indicating that his basic activities of daily living were intact.” E. A Second APS Investigation in 2015 Following Gustave’s dementia diagnosis, Ana continued driving him to his doctors’ appointments and to do his banking. During one trip to the bank, on July 3, 2015, Ana pushed Gustave in his wheelchair into a Wells Fargo branch and presented a withdrawal slip for $100,000. Mohammed Aiyedogbon was working as a branch manager of the Wells Fargo that day and noticed that Gustave wasn’t saying much and “could barely [] hold onto the pen [to] write,” so Ana filled out the slip for him.

According to Mr. Aiyedogbon, tellers presented with these scenarios are trained to try communicating with the customer rather than the caregiver. Mr. Aiyedogbon tried communicating directly with Gustave “to get a good understanding of if he knew what was being requested.” But Mr. Aiyedogbon perceived that Gustave “seemed quite unsure.” Ana was asking the questions and making the demands, which prompted Mr. Aiyedogbon to sit them down to inquire further. According to Mr. Aiyedogbon’s recollection of the conversation that followed, the purpose of the withdrawal was to move funds over to Ana. Gustave told Mr. Aiyedogbon that he was purchasing a property for Ana and her kids that would cost him about $400,000.

Although Gustave said his son was his next of kin, Gustave said their relationship wasn’t in a good place. It soon became clear to Mr. Aiyedogbon that Gustave “wasn’t quite sure 17 what was going on,” so Mr. Aiyedogbon consulted with his manager, and they determined to contact the elder-abuse line. The elder-abuse line instructed them to call the police. Montgomery County police arrived and interviewed Ana and Gustave separately.

Officer Jamie Rosner9 interviewed Gustave and observed that he “was able to carry on a conversation for some amount of time but would often seem confused and would be unclear in his responses. He would respond to questions with conflicting answers and things like that.” Gustave said the $100,000 he sought to withdraw was to supplement other funds he had already given Ana to purchase a house located in Silver Spring that had a listing price of $399,000. According to Gustave, Ana had driven him by the house three days prior, but he had not seen the inside of the house he was purchasing and would not be able to see it until he purchased it. Officer Rosner referred the case to a detective and to APS, and Ana and Gustave left without completing the $100,000 withdrawal.

Erin Howard, an investigator with APS, responded to the referral from Officer Rosner and Mr. Aiyedogbon. On July 13, ten days after the incident at the bank, Ms. Howard went to Gustave’s house on Munsey Street. Ana answered the door, identified herself as Gustave’s friend, and let Ms. Howard inside. Ms. Howard then had a conversation with Ana and Gustave,10 in which she spoke primarily to Ana, but Gustave would also chime in.

Gustave told Ms. Howard that he was in the process of buying a house so that he and Ana’s family could live together. Ana then explained that Gustave’s 9 Officer Rosner became a special agent with the federal Bureau of Alcohol Tobacco & Firearms and Explosives before he testified as a State’s witness at trial. 10 Javier was not present at Gustave’s home during Ms. Howard’s visits. 18 house on Munsey Street had lead paint and asbestos, and that they wanted to get him a place that was more accessible. She also said that they planned to get Gustave a house with fewer steps and that they would install a chair lift. Although Ana told Ms. Howard that Gustave could walk independently, Ms. Howard did not see him do so herself.

Two days later, on July 15, Ms. Howard returned to the house on Munsey Street to speak with Gustave again. Ms. Howard determined that Gustave was a vulnerable adult because he needed assistance with medication reminders, bathing, dressing, grocery shopping, light chores, transportation, and paying bills. Gustave also had difficulty writing. He could eat independently, transfer chairs, brush his teeth, walk independently, prepare a light meal, use the telephone, use the bathroom, and plan and make decisions.

Gustave scored a three out of six on ‘the clock test.’11 Ms. Howard testified that a score of three indicates moderate dementia. But also related that Gustave only scored a seven out of 15 on a structured evaluation to assess his cognitive impairment. Ms. Howard followed up with some of Gustave’s doctors, and members of the office staff left her with the impression that, based on Gustave’s medical records, she could close the APS investigation. At trial, however, she testified that her view of the case would have been different if Gustave’s doctors had provided her accurate information about Gustave’s diagnosis. 11 The ‘clock test’ requires the subject to draw a clock.

As Ms. Howard explained at trial, the clock test is a screening tool used to test cognitive status to “flag” if the subject requires more in-depth testing. 19 Bank records reflect that on July 17, 2015, two days after Ms. Howard’s second visit with Gustave, Ana’s status on two of Gustave’s Wells Fargo accounts was changed from beneficiary to POA/POD.12 In sum, after knowing Gustave for little more than two years, Ana’s name, either as joint owner, beneficiary, or POA/POD, was on at least seven of Gustave’s separate checking and savings accounts at Wells Fargo and Capital One. Most of these accounts had been opened between mid-2013 and early 2014. Several large transactions, such as the transfer of $1.3 million and multiple $300,000 withdrawals and deposits, took place between the various accounts associated with Gustave and Ana, including the Wells Fargo account Ana opened in her own name in July 2013. In addition to taking the reins on Gustave’s bank accounts, by the summer of 2015, Ana was added as a co-lessee on his safe deposit box at Capital One; granted power of attorney and healthcare power of attorney; made the sole beneficiary of his will; and deeded his Munsey Street property in fee simple subject to a life estate in Gustave.

Moreover, Ana was listed, along with Javier, as titleholder to the $43,000 Toyota Highlander purchased primarily with Gustave’s money. As we detail next, Ana and Javier were listed on the contract and deed for the Wilton Oaks property, also purchased with Gustave’s money. 12 With POA, or power of attorney, Ana was authorized to act on behalf of Gustave, the account holder. The POD, or pay-on-death, designation made the accounts payable to Ana as beneficiary upon Gustave’s death. 20 F. The House on Wilton Oaks 1. The Purchase of a Non-Accessible House Colleen Connor, a real estate agent, received a referral to help the Molinas purchase a house they found in Silver Spring.

She testified at trial that she met with both Ana and Javier about purchasing the house, an older split-level. Ms. Connor explained that “there would have to be[] renovations made to make [the house] handicap accessible” because, as a split-level, you’d need to take stairs to go to the main level or the lower level, and there were also “a lot of stairs from the deck all the way down.” The first time Ms. Connor showed Ana the house, a least a few members of Ana’s family were with her. The Molinas “talked a lot about there needing to be renovations made. They talked about having to extend the driveway. . . . [I]t seemed to be very, very important to them that that be done.” Ana “mentioned a chair [] lift would be put in, and it would be sort of no problem[.]” Because of how quickly things were moving, Ms. Connor asked Ana how they would finance the purchase, to which Ana replied that “the man that [] she takes care of was going [] to purchase the property for her.” Ms. Connor noted that, although he was present for the conversations, “Mr. Molina didn’t do much talking at all[.]” When Gustave eventually visited the property at Wilton Oaks, the Molinas drove him there.

Ms. Connor, who showed them the property that day, later described the process of getting Gustave into the house as “tedious.” She felt a general feeling of unease. But, she said, Ana was strong and helped Gustave up the stairs. Though Ms. Connor remembered Ana pointing out the rooms to Gustave, she noticed that Gustave didn’t show 21 any real interest in the house and, instead, kept asking Ms. Connor questions about other, unrelated things. Gustave never viewed the lower level because, Ms. Connor said, it was difficult enough to get him up the stairs once.

On July 8, 2015, the Molinas and Gustave made an offer of $390,000 on the property at 13013 Wilton Oaks Drive in Silver Spring. Ana liked some of the furniture in the house, so they agreed to purchase that as well. Bank records show a deposit on the property in the form of a $40,000 cashier’s check drawn from one of Gustave’s accounts at Wells Fargo and made payable to Flynn Title. Ms. Connor attended the closing along with Ana, Javier, and Gustave on August 18, 2015.

The contract to purchase the property listed the purchasers as Ana, Javier, and Gustave. The deed listed Gustave, Javier, and Ana, with Gustave as the life tenant and the Molinas as remaindermen.13 They paid cash for the property. A wire transfer of $298,937.86 was debited from the Wells Fargo account that Ana owned solely—the same account into which she deposited $300,000 in December 2013, following a $300,000 withdrawal from Gustave’s Wells Fargo account ending in -9261. Gustave’s bank records also reflect a separate wire transfer for $60,000 to cover costs at closing, bringing the total funds withdrawn for the purchase of the house, and furniture, to $398,937.

The Molinas soon moved into the house on Wilton Oaks Drive with their children and Gustave. 13 Mr. Steven would testify at trial that he spoke to Ana and Gustave over the phone in July 2015 and drafted language for the Wilton Oaks title similar to the language he used in September 2014 giving Ana a fee simple in the Munsey Street property, subject to a life estate in Gustave. 22 2. Life at Wilton Oaks At some point in 2015, Ana stopped bringing Gustave to the bank with her. But she continued to transact business at the bank as joint owner of the accounts and through her power of attorney. She told Ms. Alhalaseh at Capital One that Gustave had been diagnosed with dementia.

Ana did continue to take Gustave to his doctors’ appointments. Notes from a November 27, 2015 visit reflect that Ana told a doctor that she was concerned by Gustave’s abusive language and his “escalating physicality.” At another appointment in February 2016, she brought Gustave to see Dr. Hurley to address mood changes and outbursts that Gustave was experiencing after moving out of his home on Munsey Street. Dr. Hurley noted, in relation to Gustave’s outbursts, that Gustave was upset because he “was a voracious reader and reportedly had a huge book collection.” When Gustave was moved to Wilton Oaks with the Molinas, his book collection was left at the house on Munsey Street. Ana met with Dr. Hurley, without Gustave, on March 3, 2016, to review Gustave’s “express wishes.” Ana reported to Dr. Hurley that Gustave was becoming “increasingly difficult to manage.” Although Ana continued to handle activities such as cooking, cleaning, bill paying, and managing the home, she said that Gustave “requir[ed] more intense assistance with his normal daily activities.” Dr. Hurley reviewed with Ana, as Gustave’s power of attorney, a document called the ‘five wishes’ and they completed a Medical Orders for Life-Sustaining Treatment (“MOLST”) document, which sets out what should be done if the patient is found non-responsive. 23 Later that month, on March 15, police responded to the Wilton Oaks house when Ana called to report that Gustave was suicidal and threatening to hurt others in the house.

Ana referred to Gustave as her father and told Officer Whitney Kujawa that Gustave was threatening to hurt people because he had not been taking his medications for dementia and depression. Officer Kujawa completed an emergency evaluation petition to have Gustave evaluated against his will, and first-responders then transported him to the hospital. Three days later, Gustave had another appointment with Dr. Hurley to address his agitation. Ana reported that Gustave “had become much more aggressive and hostile towards her and [had] struck her.” Gustave shouted and jumped at Dr. Hurley when he entered the room.

Dr. Hurley recalled at trial that Gustave “didn’t know where he was or what time [it was]. He was having some paranoid thoughts and they were loose and disjointed and they were just rambling.” Gustave could not complete the clock test and had no short-term memories. After the appointment, Dr. Hurley heard a call over the loudspeaker that there was a medical alert to which police were called because Gustave had reportedly swung at other patients in the pharmacy. Dr. Hurley subsequently referred Gustave to the psychiatry department.

After the incident at the pharmacy, an in-home nursing agency, Complete Care Solutions, began assisting in Gustave’s care based on a referral from Kaiser. The owner of Complete Care, Sonia Mundle Smith, inspected the house on Wilton Oaks and noticed that it was inadequate for Gustave’s physical condition. The main problem, as she saw it, was that the split-level house had no wheelchair access to accommodate Gustave’s lack of mobility. According to Ms. Smith, Ana mentioned that living in a house that was not 24 handicap-accessible would help justify her moving Gustave to an assisted-living facility.

Ms. Smith also recounted a conversation with Ana about the Toyota Highlander, in which Ana claimed that Gustave used to pay her an allowance but stopped doing so when he purchased the Highlander (contrary to her assertion to Mr. Flynn that the vehicle was purchased by Javier’s employer). Ms. Smith testified that Gustave said he used to have a lot of money, but Ana had taken it all, so he wanted to die. Around the same time, Ana bluntly told Ms. Smith that she worried Gustave would not die and lamented that she had paid for his funeral expenses up front: “when you do that, they don’t die.” Complete Care began working on an as-needed basis, but that gradually evolved to 24-hour care beginning in May 2016, when Ana was leaving for a family reunion in Peru. Yvonne Mundle, a certified nursing assistant, began working 12-hour shifts a few days a week while Ana was gone.

Ms. Mundle testified that she thought that “everything was great” when she started. But soon, Gustave’s clothes went from being washed weekly to being washed every other week before eventually they were washed only once every three weeks. When Ms. Mundle asked Ana about the clothes piling up, Ana said she was busy. Still, Ms. Mundle observed that Gustave would ask for Ana, and that whenever Ana would come and say good morning to him, Gustave would have a good day and not be in a bad mood.

G. The Third APS Investigation in 2016 1. Records Review and In-Person Assessments. Ms. Smith referred Gustave’s case to APS, thereby launching a third investigation 25 by the agency into Gustave’s circumstances. Judith Libert, a clinical social worker with a specialization in geriatrics, set out, in June 2016, to determine whether Gustave was a vulnerable adult who was being financially exploited.

In her testimony at trial, she noted that she began her investigation by calling Ms. Smith at Complete Care, and then she called Gustave’s doctors to obtain medical records and also his banks to obtain his financial records. She reviewed the reports that Ms. McGlamary and Ms. Howard, respectively, had made of the first two APS investigations. On July 5, Ms. Libert made an unannounced visit to the Wilton Oaks house to assess Gustave in person. When Ms. Libert arrived, the Molinas were not home.

She went inside and noticed that “you had to immediately go down a flight of stairs or up a flight of stairs.” Although she knew Gustave used a wheelchair, she noted that there was no chair lift installed. She also observed that the house was decorated beautifully, with a large, sectional leather couch in the living room downstairs, as well as “a huge flat-panel TV across the room.” She noted that the dining room furniture was “very modern and it was barstool height[,]” which “didn’t seem like a very good set up for [an] elderly person.” The caretaker on duty escorted Ms. Libert upstairs to Gustave’s room, where Ms. Libert found Gustave seated in his wheelchair. Gustave looked “extremely frail,” “very very thin.” His room was “extremely hot” with a space-heater on; yet, Gustave was wearing a fleece jacket and sweatpants. Ms. Libert pulled up a chair very close to Gustave’s wheelchair and asked if he knew why she was there, to which Gustave responded by asking how many zeros were in 2 million dollars.

He then said, “money, money, money.” 26 Ms. Libert began her psychosocial assessment with some basic questions. The next day was Gustave’s 99th birthday, so she asked him if he knew the next day “[wa]s a very important day,” but “he had no idea.” Gustave didn’t know his age, and when Ms. Libert asked for his address, Gustave responded, “They brought me here. They didn’t ask me. I want to go to my house.” (Emphasis added).

Gustave also volunteered that he did not know when he started giving Ana money and he didn’t know when he stopped. Ms. Libert tried to ascertain whether Gustave knew how much money he’d given Ana, but Gustave didn’t know. Gustave scored a five out of 30 when Ms. Libert administered a daily-living assessment. She noted that Gustave had scored a 23 out of 30 on the same assessment only a year prior during the second APS investigation.

During the interview, Ana opened the door without knocking, walked in, and gave Gustave “a huge hug and rubbed his face and was like greeting him.” Ms. Libert testified at trial that Gustave looked “very pleased to see her.” Ana fed Gustave a pill from a spoon without explaining what the medicine was, stating simply that she “had not had a chance to give him his morning medicine.” Ms. Libert asked Ana to leave the room, so she could finish the interview in private. Ms. Libert went downstairs after her assessment of Gustave to speak with Ana in the kitchen. Without prompting, Ana “immediately volunteered” several documents by “shoving some papers across the counter in the kitchen[.]” Among the papers that Ana showed Ms. Libert were the deeds to two houses and a will. Again without prompting, Ana told Ms. Libert that she “get[s] it all” when Gustave dies.

Ms. Libert asked what “all” was—if there were more assets—and then Ana informed her that Gustave had “$600,000 27 in [C]apital [O]ne and $250,000 in Wells Fargo.” Ms. Libert later testified that she thought it “seem[ed] unusual that a person would leave everything to someone they have known for such a short period of time when they have living relatives.” Ms. Libert continued her investigation after she left the Wilton Oaks house. She reviewed all Gustave’s medical records dating back to January 2013, including neurological evaluations and cognitive exams. She called the attorney, Mr. Steven, who prepared Gustave’s will; she called Gustave’s banks; and she spoke to Dana and her referral source several times. At the end of her investigation, Ms. Libert ruled that Gustave “definitely had suspected incapacity.” She also believed she “had enough findings to indicate that financial exploitation had occurred.” As a result, Gustave’s case remained open “as a continuing [APS] case.” Ms. Libert then asked Dr. Patricia Nay, a geriatric physician who works in palliative medicine, to evaluate Gustave. 2.

Evaluation by Dr. Nay Dr. Nay evaluated Gustave for 85 minutes on August 12, 2016. Ana was not there during Dr. Nay’s visit. Although it was an unannounced visit, the house was “very well- kept,” “very neat and clean.” Gustave was sitting in a chair, in his room, wearing a diaper and no pants. Dr. Nay attempted to take Gustave’s medical history, but he was unable to tell her about his past or current medical issues or his current medications.

Nor could he tell her where he was born or how he ended up living in the area. He did, however, confirm, after “much prompting,” that his wife had died. But Gustave “couldn’t remember his wife’s name or anything about his wife. . . He couldn’t recall if he had children.” It wasn’t until 28 Dr. Nay named one of his sons that Gustave finally “recall[ed] that he had a son.” Gustave did not remember anything about his own work history, although he remembered that he went to George Washington University.

Dr. Nay performed a mental-status exam to assess Gustave’s cognitive abilities. At trial, she described her interaction with Gustave: [He appeared] alert and . . . oriented to self. He knew his name. He did not know the[] day of week, the date, the year, any of that information.

Th[e] season. He didn’t know if he was in his house or another person’s house and then he decided yes, it was his home. He didn’t know his current address or any past addresses or what state he was living in. He was cooperative throughout the interview.

His speech was clear. And I could understand the words he was saying but sometimes it wouldn’t make sense to the question I would ask. So I might ask a question maybe about his medical history and he may say – he repeated the phrase urdy Gertie urdy Gertie. And he would say things like that and I wasn’t sure what he meant.

And . . . a lot of times he would answer something but it wasn’t the question I asked. He would just make a statement. He wasn’t anxious when I was there. He was a bit paranoid.

He did not appear to be depressed during my interview. He [] clearly had short-term and long-term memory deficits[,] which I mentioned already about not knowing about his children or his wife or his education. * * * So he did not understand his current situation and that he needed 24-hour caregivers for the last several years. He seemed to think that he was able to care for himself and didn’t – when I asked about this woman who was there, this caregiver that cared for him, she helped him get dressed, to toilet him, to clean him, to dress him, to feed him but he didn’t understand that he needed that help. I asked if he paid anyone to help him and he said yes.

He said he had a woman who paid his bills. . . . He came back to this throughout the time that I was there. And I asked him [] did he have a lot of bills to pay and he said the usual but he couldn’t tell me what kinds of bills he paid. But he continued to say he paid $100,000 to have this done and that’s what it cost.

(Emphasis added). 29 Dr. Nay also opined that Gustave did not understand anything about his bank accounts, investments, or property: I was trying to assess whether he understood what assets and what money he had. So starting with questions as simple as what bank do you use, do you get a retirement check, what kind of income do you have, do you have a lot of money in a savings account, do you have an investment? He was not able to answer any of those questions at all for me. As far as Gustave’s executive functioning, Dr. Nay related: [H]e had severe impairment with his insight and judgment that he wasn’t able to for instance manage his finances because he didn’t understand what he had or what the cost of services would be and that he . . . couldn’t do a shopping trip.

He couldn’t plan how to fix the meal. That he relied on others to do those things for him. Dr. Nay explained that a person suffering from dementia or Alzheimer’s disease may still be oriented to self, time, and place. She described Alzheimer’s effects on a patient’s executive functions: People with impairment in executive function[,] the more complex the issue the more difficulty they would have making the decision.

So for instance while they may be able to pay cash for a drink at a restaurant and go in and get a coffee[,] they may not be able to balance their checkbook. They may not be able to make a real estate transaction. They may not be able to figure out what to do with their investments. So it depends on the level[.] Dr. Nay confirmed Gustave’s prior diagnosis of dementia.

Specifically, she testified, within a reasonable degree of medical certainty, that Gustave had a mental disability—either Alzheimer’s disease and multi-infarct or vascular dementia. According to Dr. Nay, “[t]he duration of the dementia would have been from 2006 to the [] date of my evaluation in August of 2016.” (Emphasis added). By August 12, the date of her visit, 30 Gustave had “severe end-stage Alzheimer’s disease,” which she said puts patients “at increased risk for infections such as [] pneumonia or urinary tract infections and then that [] illness can lead to [] death.” Gustave’s disability, Dr. Nay explained, impaired his insight, judgment, and executive function, which “affected his ability to make decisions about himself or his property.” She determined that Gustave lacked the capacity and “didn’t have the skills needed to manage his property. That would be all his assets, his money, his belongings.” In regard to Gustave’s inability to make decisions regarding his health or medical care, Dr. Nay testified that he didn’t understand what his current status was regarding his health, he didn’t understand what medical problems he had or had in the past.

He wasn’t able to remember if he was on any medicines. And if you don’t know what your problems are and if you don’t know what your medicines are it is hard to make decisions about your healthcare and how that may affect you. He also showed deficits in his judgment about things regarding that. And he had problems with his judgment going back years before I had seen him about what to do with medical emergencies.

Dr. Nay offered, as an example of Gustave’s inability to respond to medical emergencies, Gustave’s failure to call 911 when he found his wife non-responsive in 2012. In Dr. Nay’s estimation, Gustave’s reaction—taking 30 minutes to call Dana, rather than 911, because he wanted to ride to the hospital with Ruth—did not indicate that he panicked but that he didn’t understand the situation. Dr. Nay’s review of Gustave’s record also revealed evidence pre-dating Ruth’s death that Gustave was suffering from paranoia and delusions, which continued after her death as he isolated himself and became increasingly paranoid. 31 Another example that Dr. Nay offered was when Gustave, in 2010, had paranoid delusions about people spying on him from his neighbor’s shed. 3. Referral to State’s Attorney’s Office In August 2016, APS referred Gustave’s case to Daniel Wortman, a special investigator assigned to the Montgomery County State’s Attorney’s Office, Special Prosecutions Division, to investigate possible financial exploitation.

Mr. Wortman subsequently met with Gustave at the Wilton Oaks house with Ana and one of the Molinas’ daughters present. Gustave appeared to be confused during the interview; Ana held his hand under the table. The remainder of Mr. Wortman’s investigation involved looking into Gustave’s financial records and the Molinas’ financial records. He testified at trial as an expert in financial-crimes analysis.

We will discuss his testimony in more detail below. H. End-Stage Dementia APS referred Gustave to the ManorCare assisted-nursing facility in Potomac on September 13, 2016. Dr. Loreto Albiol, the medical director of ManorCare Potomac, testified for the State at trial as an expert in geriatric medicine. He explained that, when Gustave arrived at ManorCare, he was 99; “very cache[c]tic[,]” meaning he was “very weak, very emaciated[;]” he didn’t have a lot of muscle mass and “probably had not been eating well.” The “biggest diagnosis,” as described by Dr. Albiol, was Gustave’s severe and advanced dementia—Gustave wasn’t oriented to himself, and couldn’t state his age, where he was, whether he had children, or what happened to him.

According to Dr. Albiol, doctors needed to evaluate Gustave further to determine whether he suffered from vascular dementia or Alzheimer’s type dementia. Although there is no “definite test” to determine 32 whether a patient suffers from Alzheimer’s specifically because “it is a process,” Dr. Albiol opined that “you don’t get dementia overnight. You get dementia over a long period of time. I think it’s five to 15 years.” Only a week after Gustave arrived at ManorCare, he died on September 20, 2016.

His death certificate listed the immediate causes of Gustave’s death as bilateral pneumonia, dysphagia,14 and advanced dementia. But before Gustave passed away, Catherine McQueen, Esq. was designated as guardian of Gustave’s property. As guardian, she was tasked with identifying and gathering Gustave’s assets. She found two accounts at Wells Fargo, two accounts at Capital One, and two pieces of property (the two houses).

The two accounts at Wells Fargo had between $260,000 and $270,000; the Capital One accounts had between $770,000 and $780,000. Each month, Gustave’s income—consisting of a pension, Social Security, and another small payment—went into one of the Capital One accounts. In her role as guardian, Ms. McQueen closed Gustave’s bank accounts and transferred the funds into a guardianship account that only she could access. She also had an attorney at her firm draft new deeds to Gustave’s properties.

The new deeds, which Ms. McQueen signed as guardian and recorded in the land records for Montgomery County, re- granted Gustave his fee simple interest in the properties. She then took control of the properties only a few days before Gustave died. Ms. McQueen contacted the funeral home to settle Gustave’s burial arrangements. 14 “Dysphagia” is “[d]ifficulty in swallowing.” Stedman’s Medical Dictionary 599 (28th ed. 2006). 33 I. Additional Financial Evidence In addition to the testimony set out so far, several other State’s witnesses focused more directly on financial issues. 1. Tax Preparations Natalie Bernal, a certified tax preparer, prepared taxes for the Molinas, who filed jointly, as well as for Gustave.

Javier never accompanied Ana or Gustave to Ms. Bernal’s office, so Ms. Bernal never met him. Ana never reported any income. Ms. Bernal recounted that Ana would sign Javier’s name for him on their tax documents. Ms. Bernal remembered that the Molinas’ taxes reflected Javier’s gambling losses; Ana also gambled, but she told Ms. Bernal that she had better luck gambling than her husband did.

Ana would also bring Gustave to Ms. Bernal’s office to prepare his tax filings. According to Ms. Bernal, Gustave was alert and appeared aware of what he was doing during these interactions. Ms. Bernal related a few instances relevant to the relationship between Ana and Gustave. For instance, in 2013, Gustave told Ms. Bernal, when Ana wasn’t in the room, that he hoped that when he passed away Ana wouldn’t be stupid with his money.

The next year, Ana told Ms. Bernal that she couldn’t wait for Gustave to pass away because he had already lived his life and it was her turn to live her own. Then, in 2016, Ana went by herself to do Gustave’s taxes for 2015. She told Ms. Bernal that she didn’t bring Gustave because his dementia had made him more difficult to handle. 2. Financial Investigation into the Molinas Mr. Wortman, the special investigator with the State’s Attorney’s Office who, at the request of APS, investigated the financial exploitation of Gustave, outlined the findings of 34 his investigation at trial.15 Mr. Wortman reviewed all Gustave’s financial records from the end of 2011 through 2016, as well as accounts in the name of Ana, the Molinas’ daughter Janesse, and Javier—although he said there were not many financial records for Javier.

The following reflects the results of Mr. Wortman’s findings. In 2012, Gustave did not have a debit card and did not make cash withdrawals; he only wrote checks to himself at the teller’s window to get cash from the bank. After 2012, Gustave continued to write checks out to himself, but the amount of the checks increased. An “explosion in regular cash withdrawal[s]” began in January 2013 lasting through September 8, 2016.

During that period—in addition to the $398,937.86 to purchase the Wilton Oaks house and $50,000 for the Toyota Highlander—over $600,000 was withdrawn in cash and checks across two of Gustave’s Capital One accounts. Mr. Wortman noted that this was the same period during which Gustave’s Capital One account reached a peak amount of about $1.9 million as a result of deposits from matured treasury bonds. In addition to money withdrawn by cash or checks, Mr. Wortman identified other spending during that period. For instance, money from Gustave’s accounts was used to pay $64,219.45 to New York School of Visual Arts and $52,620 for contractors to remodel the two houses.

Cross-referencing bank records and surveillance footage, Mr. Wortman was able to identify Ana using a debit card linked to Gustave’s account to make several purchases at Home Depot. 15 On motion from the State, the court accepted Mr. Wortman as an expert in financial crimes analysis. 35 The investigation into the Molinas’ personal accounts also reflected increased transactions around the time Ana began working for Gustave. Ana had a checking account at Capital One that she held jointly with Janesse. The Molinas would regularly deposit into this account the paychecks from Javier’s job and checks from Ana’s housekeeping jobs. In 2012, there was $49,222.34 of deposits made into the account and $47,310.96 of expenditures drawn from the account.

For 2013, the deposits increased to $128,454.15 and the expenditures increased to $125,879.25. Similarly, in 2014, the account reflected $120,982.41 in deposits and $119,776.83 in expenditures. Two debit cards were associated with the Capital One account. One of the two debit cards made withdrawals from ATMs nearby Maryland Live Casino and Hollywood Casino at Charles Town Races.

That debit card was used to withdraw $13,769 near the casinos in 2012. The amount of withdrawals by the two casinos increased to $22,541 in 2013 and $15,564 in 2014. The amount decreased to $9,606 in 2015 and $1,514 in 2016. A separate account in Janesse’s name had a balance of $37,142 as of June 30, 2016.16 Deposits from Janesse’s jobs in New York tended to be only about $100 or $200.

Come September, Janesse made three separate cash withdrawals from the account, totaling $19,000. The balance by the end of September was $10,004.21. 16 Ms. Smith testified at trial that, sometime after Gustave was removed from Ana’s care, Ana called her and claimed that she had $30,000 hidden in an account in her and her daughter’s names that her husband didn’t know about. Ana also said she had “all of his jewelry.” 36 3. Tax Returns and Gambling Elizabeth Boone, a staff attorney with the Maryland comptroller’s office, testified as a State’s witness after retrieving the Molinas’ tax records for trial.

The Molinas’ Maryland tax records from 2012 through 2015 reflected that they filed jointly and that only Javier had W-2 forms—there was no income listed for Ana, individually. Other than Javier’s W-2s from the car wash where he worked, the only other income listed was in the form of W-2Gs—tax statements generated when a player cashes out winnings over $1,200. The Molinas’ combined adjusted gross income for the years that Ms. Boone collected was: • 2012: $31,833; • 2013: $34,643; • 2014: $47,848; • 2015: $68,927. The State called two employees from the casinos at which Javier had a player’s card.

The first of these witnesses was Ashley Pointer, a representative of Maryland Live Casino. She explained that the casino issues rewards cards, called “player’s card[s,]” to its customers so that customers can earn rewards based on the amounts they gamble at slot machines or card tables. To get a player’s card, customers submit their driver’s license to allow the casino to verify their address. The first time Javier used his player’s card at Maryland Live was May 16, 2013.

Maryland Live records a patron’s winnings any time the player wins a jackpot. Ms. Pointer explained that Maryland Live uses software called “TinCheck” that verifies the name, social security number, and address that a patron provides whenever that patron wins a jackpot. When the patron wins a jackpot, the patron must present identifying information 37 matching that from TinCheck in order to receive their winnings. Through Ms. Pointer, the state was able to admit copies of W-2Gs and win-loss statements for Javier.

Win-loss statements contain a report for the year based on gambling done with a player’s card. The reports reflect how much the patron earned in money and credits and how much they actually cashed out, as well as win-loss calculations for the year and any W-2Gs that had generated that year. Javier’s annual win-loss statements for 2013 through 2016 show the following ‘dollars in’17 and losses for Javier: • 2013: $17,339.60 dollars in, $2,205.76 in losses. • 2014: $123,318.15 dollars in, $12,565.00 in losses. • 2015: $278,167.81 dollars in, $40,719.84 in losses. • 2016: $369,774.20 dollars in, $44,214.32 in losses. The win-loss statements reflect that gambling at Maryland Live on Javier’s player’s card stopped on September 8, 2016, the same day that debits from Gustave’s Capital One account also stopped.

There were no win-loss reports for Ana; although there were several W-2Gs spanning from 2014 through 2016 that reflect her winning several thousands of dollars in jackpots. Ms. Pointer explained that, although the casinos do not prefer it, a customer can gamble with someone else’s player’s card. The wins and losses generated by that customer 17 Ms. Pointer explained that the ‘dollars in’ figure is the amount a player physically puts into the machine plus money won and any credit the player may be using. So, if a player gambles $50 and wins $100 (the original $50 plus an additional $50 in winnings), then decides to gamble the $100, a report of the player’s ‘dollars in’ would reflect $100.

Additionally, if the player has $15 in “free slot play” on their player’s card, the player cannot cash out that $15 and can only play it. The machine tallies that $15 as “dollars in.” The machine does not distinguish between types of cash in. 38 would be reflected on the records of the player whose card is used; although, regardless of whether a customer used another player’s card, or no player’s card at all, a customer who wins a jackpot over $1,200 must still verify her own identity. The second casino employee was Ronnie Little, the Director of Finance at Hollywood Casino at Charles Town Races in Charles Town, West Virginia. Hollywood Casino had one W-2G for Ana but no other records, indicating that she was not using a player’s card at that casino.

A Hollywood Casino records search from 2011-2016 for Javier showed W-2Gs from 2013, 2015, and 2016. There was no W-2G for 2014, meaning he never won a jackpot over $1,200 at Hollywood Casino that year. Javier’s annual losses at Hollywood Casino were as follows: • 2011: 19,956.46 • 2012: 14,216.28 • 2013: 24,813.30 • 2014: 24,230.07 • 2015: 21,418.67 • 2016: 4,516.86 Total: $109,151.64 4. Stipulation Without waiving prior objections to evidence about the Molinas’ financial status, defense counsel for Javier and Ana agreed to the following stipulation that was read to the jury: The Molinas first moved into the high rise building in 1992.

In 1996, the Molinas moved to a three[-]bedroom apartment[.] . . . This is a garden style building. They remained in the same apartment until October of 2015. . . . The Molinas lived in this apartment with their three children. . . . 39 In 2010, the Molinas paid $484 per month in rent.

Their rent remained at $484 per month until they moved out in October of 2015. From 2009 to 2014, Javier Molina listed his annual income as $20,800 on leasing documents. Ana Molina listed that she had no income each year. J. Motions for Judgment of Acquittal At the close of the State’s case, Ana moved for judgment of acquittal.

She argued, in large part, that the State failed to adduce evidence that Ana exerted undue influence over Gustave’s ability to make decisions based on his own free will. In response, the State asked the court “to consider both the testimony of [Gustave’s] cognitive decline across the years in connection with the different financial decisions, in quotation marks, that he made throughout the years.” The State argued that Gustave’s cognitive impairment made it “a lot easier to show undue influence,” and that there was no evidence that Gustave “knowingly and willfully consented to all of these financial transactions.” As for the conspiracy charges, Ana argued that the State failed to adduce evidence “of two separate agreements between the same two people on the same day to take the property from the same victim.” The State responded that the increase in Javier’s gambling “circumstantially [came] from [Gustave’s] account, money that comes from [Ana] who is[] the person orchestrating [the] whole affair.” Finally, on the theft scheme counts, the State asserted that it was “arguing theft under unauthorized control of property as it pertains to Ana [], as well as theft by deception[,]” and relying on similar arguments to the counts of financial exploitation. The court denied Ana’s motion as to all counts. The court noted, however, that it might revisit the motion for judgment on the conspiracy counts based on duplicity. 40 Javier also moved for judgment of acquittal.

His counsel argued that “[t]here [wa]s simply no testimony putting my client in the same room ever with Gustav[e.] . . . [T]here’s never any testimony that he exploited him. . . . [And] there’s no testimony he used deception, intimidation, undue influence.” Although he admitted that there were “some gambling records showing that he may have used some of Gustav[e]’s money to gamble[,]” Javier reasoned that his gambling proved only the recent possession of stolen goods. Javier also agreed with the court that there was evidence of him enjoying the benefits of the vehicle and the house, but he argued that “there’s no action showing that he [was] involved in exploiting or deceiving [] or manipulating, there’s none. He’s benefiting, there’s no question.” The State responded by pointing to the evidence showing that Javier’s increased gambling coincided with the increased money in the Molinas’ bank accounts and observed that “there is no evidence at all . . . that [Javier] believed that his wife just got this $1 million job and all of a sudden she became a $1 million housekeeper.” And, the State argued, Javier met the definition of an accomplice to Ana’s crimes through his “participation in at least the two key events, the purchase of the car and the purchase of the house[.]” The court denied Javier’s motion with respect to Counts 1 and 2 for theft scheme and conspiracy to commit theft scheme but reserved on Counts 3, 4, and 5, all of which related to financial exploitation. K. The Defense Ana called one witness in her defense, Mulvina Pauline Crossman, a registered nurse case manager with Kaiser.

Ms. Crossman recounted her interactions with Gustave. She testified that Gustave did not want the hospital to contact Dana, and that Gustave 41 agreed to buy a house to live in with the Molinas. In 2015, Ms. Crossman told APS that Gustave “was in his right mind” based on having known him since 2013. It was not until 2016 that Gustave’s soundness of mind declined, according to Ms. Crossman.

On cross- examination, Ms. Crossman testified, without objection, that her opinion of Gustave’s condition would have changed if she knew more facts. Javier called no witnesses so, following Ms. Crossman’s testimony, the defense rested their cases. L. Renewed Motions for Judgment The Molinas both renewed their judgments for acquittal. The court ruled that there was sufficient evidence for a fact-finder to conclude that Ana was guilty on the counts with which she was charged and denied her motion.

As for Javier, the court ruled, with respect to theft and conspiracy to commit theft: I comm[en]ted yesterday that there was more than enough evidence at that point to go forward on the theft and conspiracy to commit theft on the theory of receiving stolen property alone. And, if we merely look at the gambling expenditures in two different establishments, i[n] amounts [that] yearly equal more than his take-home [pay]. I say that because there’s two different casinos going on. * ** . . . [I]s there a debt [from the years before Gustave]? I don’t know.

But, he’s spending more money than his take-home. I don’t know what his take- home is, but I know what his gross pay is. And, until that last year where it’s 68,000, it’s in the 30 and 40,000 [range], $38,000, something like that. And, somehow this family’s supposed to survive on his salary.

She makes [$]100, $300 here and there doing housecleaning. But, it’s impossible to find that I should grant a judgment of acquittal on just the mere amounts of money that were being used to fund this pastime of gambling. And, the wife’s [gambling], too. . . . Then, the court turned to financial exploitation: 42 . . .

At first blush, it’s like, well, what evidence do we have of Javier Molina other than he’s titled on the car and two houses? And, I think the key word . . . to look at was [] did the defendant knowingly and willfully obtain property of Gustav[e] Shapiro? Maybe. That the defendant had the purpose of depriving Gustav[e] Shapiro of the property?

Maybe. That at the time of the conduct, Gustav[e] was [over] 68. * * * And, that the defendant knew or reasonably should have known that Gust[ave] Shapiro was at least 68, [] and the property had value. The more troublesome element is . . . that the defendant did so by deception, intimidation, or undue influence. And, that’s the key part that defendant, Javier Molina, rightfully argues.

But, then you look at the definition of accomplice where it says that the defendant doesn’t have to be present in order to be convicted. But, that it would have to have occurred with Javier Molina doing so with the intent that the crime of financial exploitation happened; that he knowingly aided, counseled, commanded, or encouraged the commission of the crime; or communicated to a participant that he was ready, willing, and able to lend support. But, the keywords are aided, or rather, counseled, or commanded, or encouraged the commission of a crime. And, when you look at the sheer overwhelming evidence of the amounts of money that are going to the Molina family, when before it was a – I don’t want to – it was a lower income [family,] when you consider the fact that there is a wife who’s making not too much money, and there are three dependents.

Now, here you have evidence that they’re living in, and have been for some long time, in housing, three-bedroom apartment, where the rent is like $460 a month. That’s extraordinary. And, then the next thing you know, in 2015 we have a house paid free and clear with his name on it, a car which is not tricked out in a way that would work for Mr. Shapiro. It’s totally unsuitable for his needs and a fancy car at that, a nice one, a $41,000 car, cash.

And, I note that on the car purchase Mr. Molina’s name is first. We also have Mr. Molina’s name on the deeds. We have the increase in gambling. He benefited from this house free and clear.

He benefited from the car free and clear. There’s brand new appliance[s] in the home. There’s $18,000 worth of supply and remodeling. We have evidence of increasing d[ementia].

Now, I know the Defense pitch is he was doing fine, and that’s really a jury consideration. We have, okay, starting in 2013, we have the daughter going to an expensive college in New York. I mean, the jury’s free to believe that Mr. Shapiro wanted to do that on his own freewill given that he had this new family. When you factor in that he didn’t even pay for Dana Shapiro’s college, admittedly that was many, many years ago when he had less money 43 no doubt, and now Mr. Shapiro’s got a lot of money, you know, I just think it’s one thing after another.

And, the combination of the largesse that is bestowed upon this family in addition to Mr. Shapiro’s aging process, we have APS involvement [] several times. He may not have known any of it, but we have several points when APS is starting to get involved. They’re moving into a house that clearly does not meet Gus[tave]’s needs. And, admittedly, at this point, he’s 98.

And, maybe they just thought we’ll just suck it up until, he’s not going to live long. He doesn’t get around. The real estate agent, Colleen Connor, said she had some dealing with Mr. Molina. And, this was a house paid in cash.

No loan. He had to have known. I mean the jury could infer from the evidence that Mr. Molina knew that this man was vulnerable. And, in the Court’s view, there is sufficient circumstantial evidence to present the charges of financial exploitation on the accomplice theory that he may have encouraged his wife to commit these acts of theft, or these alleged acts of theft, or financial exploitation.

But, really, it’s based on, and we have evidence that in 2009, there’s an MRI, and the reasons are memory loss. You don’t just get an MRI for nothing. And, in 2014, he’s diagnosed with mil[d] dementia. And, then we have little incidents of him acting up here and there.

And, I just think it’s the overwhelming amounts of money and gifts, if the defendant’s theory is correct, [ ] support[] sending this case to a jury as I find that a reasonable fact-finder could find that Mr. Molina was an accomplice to the financial exploitation that may have been occurring in [] that household. So, for all of those reasons, the motion for judgment of acquittal as to all five counts is denied. (Emphasis added). Verdict and Sentencing The jury found Ana guilty of: • a theft scheme over $100,000 • conspiracy to commit the theft scheme; • financial exploitation of an adult over 68 in an amount over $100,000; 44 • conspiracy to commit financial exploitation of a vulnerable adult in an amount over $100,000;18 • financial exploitation of a vulnerable adult in an amount over $100,000; and • two counts of misappropriation by a fiduciary.

The jury found Javier guilty of: • a theft scheme over $100,000; • conspiracy to commit the theft scheme; • financial exploitation of an adult over 68 in an amount over $100,000; • conspiracy to commit financial exploitation of a vulnerable adult in an amount over $100,000; and • financial exploitation of a vulnerable adult in an amount over $100,000. The court sentenced the Molinas on January 29, 2018. In Ana’s case, for the conviction for theft scheme and two convictions for financial exploitation, the court imposed three concurrent sentences of 20 years and suspended all but 10 years. The conspiracy convictions merged into their related substantive offenses.

Additionally, the court imposed concurrent suspended five-year sentences for both counts of misappropriation by a fiduciary (as well as and a concurrent suspended 10-year sentence for fraud against the government). Ana was further ordered to complete five years of supervised release and pay $60,000 in restitution. The court also prohibited her from working as a caregiver in the home of any person over the age of 68. Javier received three concurrent sentences of 20 years with all but six years suspended for his convictions for theft-scheme and the two counts of financial exploitation.

The two conspiracy convictions merged into the respective substantive offenses. Javier 18 As noted earlier, one of the two charges against Ana and against Javier, of conspiracy to commit financial exploitation of a vulnerable adult in an amount over $100,000, was nolle prossed. 45 was also ordered to complete five years of supervised release and pay $60,000 in restitution to Gustave’s estate.19 Ana noted her timely appeal on February 9, 2018;20 Javier noted his own timely appeal on February 13.21 We supply additional facts in the discussion as necessary. 19 On December 4, 2017, Javier pleaded guilty to theft scheme over $10,000 against the Department of Housing and Urban Development (Count 7), for which the court sentenced Javier to an additional sentence of 10 years with all but five suspended, to run concurrently. With the State’s agreement, at a hearing on November 9, 2017, the court dismissed Counts 9, 10, and 11 related to housing fraud. The State nolle prossed all remaining counts. 20 As we noted in our introduction, we have consolidated the issues that the Molinas presented individually in this consolidated appeal.

Ana’s questions presented, as listed in her opening brief, are as follows: I. Did the trial court err by admitting impermissible opinion evidence by a witness who was not qualified as an expert under Md. Rule 5-702?

II

Did the trial court err by admitting into evidence unduly prejudicial evidence of other crimes under Md. Rule 5-404(b)?

III

Did the trial court err by overruling the Defendant’s objection to the rebuttal closing by the State? Ana then filed a supplemental Appellant’s Brief with this Court, in which she added a fourth issue: IV. The evidence was legally insufficient to sustain Appellant’s conviction under Section 8-801 of the Criminal Law Article of the Md. Code. 21 In his brief, Javier presented the following questions for our review: I. Was the evidence insufficient to sustain all of the convictions?

II

Did the circuit court err in admitting irrelevant and unfairly prejudicial evidence?

III

Did the circuit court err in instructing the jury on accomplice testimony?

IV

Did the circuit court err in permitting impermissible rebuttal argument? 46 DISCUSSION I. Evidence of Gambling and the Molinas’ Financial Status A. Motions in Limine As mentioned earlier, the Molinas moved in limine to exclude evidence of their gambling activities and financial circumstances. At a pre-trial hearing, Javier’s counsel argued that, “[o]nce the[ jury] start[s] thinking about gambling and the money being lost on gambling, and once [the State] comes with these documents and charts that show gambling, gambling, gambling, no one is going to hear anything else. Of course they stole that money. They did it to gamble.

Does it prove they stole the money? No.” The court inquired, “But is it not a motive?” Javier’s counsel responded that the gambling evidence was prejudicial, and that the jurors would be unable to judge the case fairly because Once the[ jury] hear[s] that, the[ defendants are] not going to be judged fairly. Agreed that there is some relevance to it if you’re saying it’s motive, but . . . * * * . . . [w]e don’t believe it proves that they did this crime, and we think it’s just inflammatory, and while it makes everyone uncomfortable, and it makes everybody feel sick to think, God, was that money stolen to gamble? Was it?

It’s too speculative. It could have been stolen for many other reasons, and it basically damns[] the clients. The State pressed that the gambling records were relevant to show motive, “because there’s no other source from their own income to be able to gamble with.” The gambling evidence was also relevant to a fundamental element of the theft crimes charged—where the money went. The court ruled that evidence of gambling would be permitted to show motive. 47 At the beginning of the proceedings on November 13, the court resumed consideration of the other issue addressed in the Molinas’ motion in limine—financial status.

The Molinas asserted that evidence of their financial status related solely to “the general and impermissible assumption that lower income people, who rely on public benefits, crave money and will commit a crime to obtain it.” They added that, when combined with the gambling evidence, the evidence of their financial status “becomes overwhelming for the jury. Here’s poor people and they gamble, they must have [] taken this money.” The State urged that the Molinas’ financial circumstances, including Ana’s declaration of no income, was directly relevant to whether they had motive to steal money from Gustave in order to support their significant gambling habits. After hearing the parties’ arguments, the court decided to permit the State to admit the Molinas’ joint Maryland tax returns and evidence of the couple’s gambling activities. The court also indicated that it would allow testimony regarding the Molinas’ rent payments and Ana’s certifications of no income.22 In lieu of such testimony, and without waiving their objections presented in the motions in limine, the Molinas agreed to the stipulation set out above. 22 Ana signed several certifications of no income on HUD forms during the relevant period of time.

The State maintained that it did not intend to use this evidence to show that the Molinas were lying unless they testified – the evidence was purely to show motive. After hearing objections from the lawyers representing the Molinas, the State offered to “sanitize the HUD issue” through testimony from Tiana Wardell, an employee of Rock Creek Terrace Apartments. The court ruled that the State could ask Ms. Wardell about the rent that the Molinas paid and what Ms. Molina certified as to her income. The court reasoned that Ms. Wardell’s testimony would “take out any need to bring up Section- 8 housing or subsidized housing[.]” 48 B. Parties’ Contentions on Appeal Before this Court, Javier contends that the trial judge committed reversible error by admitting evidence of gambling and financial status to show motive because such evidence “was irrelevant, [] unfairly prejudicial, and relied on crude stereotypes.” Javier asserts that “[w]ithout resorting to stereotypes,” his financial status or that of his family “did not make it more likely than not that he would have a motive to commit the offenses.” To demonstrate the lack of probative value, Javier points out that his gambling activities predated Ana’s employment with Gustave, “and, in any event, it does not follow that [his] gambling meant that he was an accomplice or even a co-conspirator.” Citing Vitek v. State, 295 Md. 35 (1982), Javier posits that with few inapplicable exceptions, “evidence of a defendant’s lack of financial wealth may not be introduced at trial.” He maintains that any marginal relevance was substantially outweighed by the “immense” danger of unfair prejudice that the jury might conclude that he was guilty “just because he was gambling large sums of money” or because his family received government subsidies.

The State seeks affirmance of the circuit court’s discretionary ruling that the probative value of the evidence outweighed its prejudicial effect. In the State’s view, “special circumstances” existed, Vitek, 295 Md. at 41 , that made the Molinas’ financial status relevant and admissible. Evidence of the couple’s financial circumstances, coupled with the gambling evidence, was relevant to show that Javier “was aware that money well in excess of the couple’s stated income was available to fund his gambling activity,” and Javier’s “lack of candor on his tax returns and income statements was relevant to show a guilty conscious.” The State concludes that the circuit court properly exercised its “very 49 broad” discretion in determining that the probative value of this evidence outweighed any unfair prejudice—particularly because the court instructed the jury to “perform their duty without any bias or prejudice to any party.”23 Javier replies that there is no evidence in the record to support the notion that he knew or had reason to know that money he gambled was obtained unlawfully. Javier also rejects the idea that the tax documents evince a lack of candor given that testimony showed Ana prepared the taxes and signed on his behalf.

Regardless, he adds, “it would still be unclear” how filing a false tax return would show consciousness of guilt in this case. C. Gambling and Finances: Special Circumstances Relevant evidence is that which “tend[s] to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Md. Rule 5-401. The Court of Appeals has instructed that 23 The State contends that Javier waived his argument that the gambling evidence was irrelevant when he conceded at trial that the gambling evidence was relevant to show motive. Javier maintains that “the defense did not exactly concede the issue of relevance.

Rather, defense counsel argued that even if the evidence was relevant, the probative value was outweighed by the danger of unfair prejudice.” Regardless, he contends, “the issue of the relevance of the gambling evidence was ‘decided by the trial court’ and therefore preserved as an issue to review on appeal.” We will ordinarily address only those issues that were raised in or decided by the trial court. Md. Rule 8-131(a). Javier’s objection to the relevance of the gambling evidence was both raised and decided below. Even if, during his argument, Javier’s counsel suggested that the evidence may have some relevance to motive, he maintained that the evidence was “too speculative.” We cannot say this was an affirmative waiver by trial counsel.

Regardless, we are well within our discretion to address the merits of Javier’s contention that unfair prejudice outweighed any relevance the evidence may have had. See Dolan v. Kemper Indep. Ins. Co., 237 Md. App. 610, 626 (2018) (exercising discretion to consider an argument on appeal despite grounds to conclude the appellant waived the argument). 50 relevance has two components: materiality and probative value.

Smith v. State, 423 Md. 573, 590 (2011) (citations omitted). “A material proposition is also called a ‘consequential fact.’ Materiality looks to the relation between the proposition for which the evidence is offered and the issues in the case. Probative value is the tendency of evidence to establish the proposition that it is offered to prove.” Id. (internal citations and some quotation marks omitted). A trial court may, in its discretion, exclude otherwise relevant evidence if the court determines that “the danger of unfair prejudice, confusion of the issues, or misleading the jury” substantially outweighs the evidence’s probative value.

Md. Rule 5-403. The “threshold determination of whether evidence is relevant is a legal conclusion” that we review without deference. Fuentes v. State, 454 Md. 296 , 325 n.13 (2017). The trial court has no discretion to admit irrelevant evidence.

Md. Rule 5-402; Fuentes, 454 Md. at 325 . If, however, we determine that evidence was relevant, our review shifts to a consideration of whether the trial court’s ruling was a sound exercise of discretion. See Fuentes, 454 Md. at 325 n.13. When dealing with circumstantial evidence, as in the present case, we must bear in mind that such evidence may be just as relevant as direct evidence, and, that our cases do not require any “greater degree of certainty [] when the evidence is circumstantial than when it is direct, for in either case the trier of fact must be convinced beyond a reasonable doubt of the guilt of the accused.” Hebron v. State, 331 Md. 219 , 226–27 (1993) (internal citations omitted).

The significance of a single strand of circumstantial evidence may be unclear when isolated from the larger tapestry. See Sewell v. State, 239 Md. App. 571 , 614 n.12 (2018). To determine relevance, then, we must not view a piece of circumstantial 51 evidence “in a vacuum, devoid of consideration of the other circumstances in the case.” Cf. Smith, 423 Md. at 590 .

Accordingly, we will consider whether evidence of Javier’s gambling