I have a case where the middle-aged son of an elderly woman, who suffers from dementia, wrote or had his mother sign checks that he passed at several retail stores. Over the course of a year it appears many thousands of dollars worth of checks were passed in this manner. On occasion the Mother would have the son go to the grocery store for her but the "suspicious" checks were for booze, cash, etc., that were of no benefit whatsoever to the elderly mother. Because of her dementia, she is unable to tell us much other than she did give him some of her signed checks to use, but she never would have given him permission to go buy liquor or some of the other items we know the checks were used for. We have one witness who says the son would get angry with the mom when she didn't want to give him a check but he would intimidate her into giving him a check. I think this easily fits the exploitation statute, but I'm not sure how best to charge this.
Should I charge each suspicious check as a separate count? Should (or can I properly) charge the entire course of passing the 50 suspicious checks over the last year as one offense? I need to be able to prove up all of these transactions in the trial of any one of them.
I would imagine conduct like this has also been prosecuted under 32.45(a)(1)(C), (b) and 32.46(a)(1). Of course, the forgery statute may also apply. The validity of 32.53 is untested. I would at least shy away from reliance on "improper use." I would guess each illegal use is a separate offense. But, the fact that it is a felony to use any amount of resources scares me about the vagueness of the statute. SB 688 emphasized Medicaid fraud as its prime objective, but the language is far broader.
Thanks, Martin. I had the same concerns with the exploitation statute. However, I am still troubled by forgery since my victim, due to her decreased mental capacity, is not able to say confidently she didn't authorize the act, as most forgery victims can.
I suppose I could try to argue that the son was a fiduciary when he took his mother's signed checks, or even signed her name with her consent, and purchased items only for his benefit. However, he held no POA/guardianship, etc. This basically boils down to a confused elderly lady who kept giving her son (a 55 year old 2 time felon) checks to "get stuff he needed." She just had no idea he was bleeding her account dry over the course of a year buying booze and dope.
Still not sure how to proceed on this one. Any ideas appreciated.
