Date: 08-09-2024

Case Style:

State of Kansas v. Alonzo Union

Case Number: 121,648

Judge: Aaron T. Roberts

Court: District Court, Wyandotte County, Kansas

Plaintiff's Attorney: Wyndotte County, Kansas District Attorney's Office

Defendant's Attorney:

Click Here For The Best Kansas Criminal Defense Lawyer Directory

Description:

Kansas City, Kansas caretake abuse and neglect criminal defense lawyer represented the Defendant.

Alonzo Union was the caretaker of Jean Miller, an elderly woman with dementia. For several years, at one time serving as Miller's power of attorney, Union had access to Miller's finances. When a nursing home bill went unpaid, the Kansas Department for Children and Families (DCF) investigated Union's activities. Union entered a no contest plea to mistreatment of a dependent adult. As part of his sentence, the court ordered Union to pay the nursing home Miller's outstanding balance as part of his restitution, and also ordered Union to pay restitution to Miller for certain payments and cash withdrawals from Miller's account, including one-half of the Walmart purchases and one-half of the ATM withdrawals.

Union appealed and a panel affirmed the restitution amount. We granted review on one issue: whether the restitution order was supported by substantial competent evidence. Within this issue, Union argues the nursing home restitution award was not causally linked to his crime of conviction, and he also argues the evidence did not support the Walmart and ATM withdrawal restitution figures. We vacate the nursing home restitution award and affirm the rest.

FACTS AND PROCEDURAL BACKGROUND

Alonzo Union met Jean Miller in 2007. They soon became friends, and within a few years, Union moved in with Miller and they shared the rent. After Miller began to suffer from dementia, Union acted as her caretaker. By 2014, Union was authorized to use Miller's bank account.

3

Union became Miller's durable power of attorney in March 2016. That summer, Miller moved into Riverbend, a nursing home. Miller left Riverbend in March 2017, with an outstanding account balance of around $9,000. Union set up a payment schedule, but the payments stopped after two or three months. Miller moved back in with Union after leaving Riverbend.

At this point, Riverbend notified DCF that there was potential abuse or neglect. Katrina Racklyeft, a social worker for DCF, opened an investigation. She interviewed both Union and Miller. She also reviewed Miller's finances and became concerned elder abuse was occurring. Her office requested and received an emergency guardianship and conservatorship to protect Miller and her finances.

Racklyeft went with a member of the sheriff's office to serve Union and remove Miller from the home. Union was not there but they found Miller. The front door was screwed shut and the backdoor was blocked by a lawnmower. Miller appeared to be in good health. A member of the sheriff's office left the guardianship papers in the home. Racklyeft returned the next day and spoke with Union. She explained he was required to turn over Miller's accounts and cards. Yet Union continued to access Miller's funds.

In November 2018, Union agreed to plead no contest to mistreatment of a dependent adult, a level 5, person felony. In turn, the State agreed to be open to probation and would argue restitution. After advising Union of his right to a trial and asking questions about the plea agreement, the court accepted the no contest plea and found Union guilty. At the sentencing hearing, the court imposed a 43-month underlying sentence and suspended the sentence in favor of probation. Miller passed away before sentencing.

At the March 2019 restitution hearing, Racklyeft testified about her investigation of Miller's finances from November 2014 to November 2017. First, all the income in Miller's account, totaling $52,787.54, was traced to Miller and consisted solely of her social security and a pension. Second, Racklyeft testified to the expenses during that period she believed contributed to Miller's care. These expenses included utilities.

Third, Racklyeft testified to the expenses she believed did not contribute to Miller's care. These expenses were broken into many categories, with the two largest being ATM withdrawals, which came to a "ballpark figure" of $30,000, and Walmart purchases, which totaled $9,365.28. Other expenses included liquor, the YMCA, USPS, several purchases in Minnesota, a dating website, a casino, Men's Wearhouse, and a shoe store. Racklyeft presented three spreadsheets as demonstrative evidence in support of her testimony.

Racklyeft testified she could not account for the $30,000 of ATM withdrawals because "[t]here's no way to show receipts of where that money was spent." She explained she did not know what the withdrawals were used for. When asked what the withdrawals revealed, based on her training and experience, she responded: "I can't answer that. I don't know that it went to her care. I can't say that it did, but I can't say that it didn't because there's no trail with it like with the other purchases." She explained she had to presume the money was not spent for Miller. She asked Union about the withdrawals during their initial interview, and Union said he spent the money on the house they were renting and the items in the home. Union never provided receipts for rent, though Racklyeft never requested this information. Racklyeft also noted she did not know what Union purchased at Walmart.

Racklyeft asserted Union owed Riverbend $7,632.74 for Miller's stay because, at the time, he was Miller's durable power of attorney and he signed the paperwork admitting Miller to the facility. Separately, Union had personally guaranteed the Riverbend bill.

In summary, Racklyeft asserted damages incurred by Miller consisted of Miller's entire income figure, $52,787.54, plus the Riverbend bill, $7,632.74, leading to a grand total loss of $60,420.28.

Union also testified at the restitution hearing and provided his account of the expenditures. He acknowledged that some expenditures were not for Miller, including the liquor purchases and the shoe purchase. But he testified all the ATM withdrawals were for "[t]he house, us, food." He explained some of the Walmart purchases were money orders or cash used to pay for Miller's car, including "some large amounts" around $1,000, which were required to catch up on payments that her previous caretaker, her brother, failed to make. Union drove the vehicle to Minnesota several times and used Miller's money to pay gas and to register the vehicle in Minnesota.

He explained that before Miller moved into Riverbend, they split rent down the middle. After Miller left Riverbend and they moved into a new residence, they paid $750 in rent, which came from the account he was authorized to use. He also used this account to pay utilities, insurance, and other household requirements. Miller and Union rented both residences from the same company. Union testified that he tried to contact the rental company to get proof of payments, but he failed because the company's phone was not set up and the company's business location had moved.

Union testified his income came from a VA pension and social security. He did not put the VA pension in the account he was authorized to use. Though the testimony is unclear, it appears he began drawing social security after Miller was removed from the home.

Union also testified about the outstanding bill at Riverbend. He acknowledged he owed Riverbend $7,632.74 for Miller's stay. He explained he stopped making payments because he reached out to Riverbend and Racklyeft to discuss Riverbend adding an extra $900 to the bill that he did not understand.

Union also acknowledged that, as a durable power of attorney, he had a duty to record how he used Miller's money. He testified he kept records of what was spent on himself and what he spent on Miller, but he explained these records were lost except for receipts related to furniture purchases.

The final witness at the restitution hearing was Miller's niece, Crystal Cartwright. She visited Miller when Miller was living with Union. Cartwright felt Miller was well cared for and never worried about Miller's financial or emotional stability.

After the witness testimony, the court heard arguments and then took the issue under advisement. The court issued its restitution order in June 2019. The court ordered Union to pay $31,511.26 in restitution. It reached this figure by adding up these amounts:

• $7,632.74 - Riverbend

• $15,244.89 - one-half of the total ATM withdrawals

• $531.67 - liquor store purchases

• $3,115.59 - out of state purchases

• $119.70 - dating website

• $184.03 - Men's Wearhouse

• $4,682.64 - one-half of the total Walmart purchases

The $7,632.74 was to be paid to Riverbend, and the remaining $23,878.52 was to be paid to Miller. The court observed Union provided no documentation to support his claim that the ATM withdrawals and Walmart purchases were for Miller's benefit. It explained:

"The Court finds that based upon the admitted dishonesty of this crime and the failure of Mr. Union to keep a proper account of the expenditures from Ms. Miller's account, there is clear and convincing circumstantial evidence that Defendant spent a significant portion of Ms. Miller's money on himself, with no concurrent benefit to her. The Court finds it is likely he used cash as a way to conceal this improper spending. Accordingly, the Court attributes a generously low 50% of the unaccounted-for expenditures to the benefit of the Defendant."...
State v. Union, 121,643 (Kan. Aug 09, 2024)

Outcome: Affirmed in part and vacated in part.

Plaintiff's Experts:

Defendant's Experts:

Comments: