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State v. Christopher

Court of Appeals of Missouri, Western District, Fourth Division

April 25, 2017


         Appeal from the Circuit Court of Cass County, Missouri The Honorable William B. Collins, Judge

          Before Mark D. Pfeiffer, Chief Judge, Presiding, Lisa White Hardwick, Judge and Gary D. Witt, Judge.

          Gary D. Witt, Judge.

         Joshua Christopher ("Christopher") appeals his conviction of the offense of financial exploitation of the elderly pursuant to section 570.145.[1] Christopher argues that the trial court erred in dismissing his motion for acquittal because there was insufficient evidence by which a jury could convict him. Christopher also argues that the trial court abused its discretion in overruling his objection to the admission of evidence regarding money cards and copies of some of the victim Ed Burnham's ("Burnham") financial records. We affirm.

         Facts and Procedural History

         Christopher met Burnham in 2011, when Burnham was 92 years old and Christopher was approximately 24 or 25 years old.[2] The two became friends while Christopher was doing work in Burnham's neighborhood. In the beginning, Christopher helped Burnham around his home with odd jobs, such as replacing light bulbs, installing a garbage disposal, and removing a tree from his backyard. Burnham paid Christopher for his work.

         Christopher was unemployed during most of the relevant period and had a difficult time finding employment. Christopher also had a gambling addiction, which Burnham knew about. Christopher and Burnham would meet at Burnham's home three or four times a week, and Christopher would call Burnham often when he was in need of money. As time went on, the amount of money Christopher requested and the frequency of his requests for money both increased.

         Burnham testified that he and Christopher had a misunderstanding regarding whether the money given to Christopher by Burnham were loans or gifts. Many, but not all, of the checks that Burnham wrote to Christopher were denominated thereon as "loan" or "loan Joshua [Christopher]." Burnham expected Christopher to pay back the loans. Christopher did make some payments to Burnham at various times but would shortly thereafter request more money from Burnham. Over the course of their dealings, Christopher did pay back approximately $24, 269.79 of the over $300, 000 that he received. During many conversations, Christopher would tell Burnham that he was trying to get a job to "pay back the money" or "repay the money that he owed." Christopher told Burnham that he was going to receive money from helping a friend run a restaurant or he was about to inherit money from his grandmother in Italy.

         In the beginning, Burnham got cash from Commerce Bank and Bank of America to loan to Christopher. Burnham also had two brokerage accounts on which he had check writing privileges, one of which was with Morgan Stanley. On one occasion, Burnham attempted to get money for Christopher from his Commerce Bank account, but Commerce Bank suspected something inappropriate was going on because of the quantity of withdrawals he had made and the number of checks written to Christopher. Christopher told Burnham he was being held in police custody in the Topeka area, which Burnham conveyed to Commerce Bank. Commerce Bank called to verify Christopher's story and found out that he was not in custody where he claimed. Commerce Bank then informed Burnham they could not continue his account due to the trouble concerning Burnham's money transfers. Burnham moved his account to Wells Fargo. Commerce Bank also alerted the Department of Health and Senior Services to what had happened and that they suspected Burnham was being taken advantage of. The Department of Health and Senior Services contacted both Burnham and Christopher and urged Burnham to stop helping Christopher.

         On at least two occasions, Christopher told Burnham that he had "lost" a check that Burnham had given him, and Burnham gave him a "replacement" check, only to find that Christopher had cashed both the original and replacement checks. One of these checks was for the sum of $4, 700 and the other was for $8, 000.

         Christopher also taught Burnham how to get money to him through the use of money cards. The money cards allowed Burnham to purchase cards in $500 increments and he then would call Christopher with the number on the card, allowing Christopher to redeem the money wherever he was. Because there was a limit on how many money cards could be purchased at Wal-Mart on a particular day, Burnham also bought money cards from CVS pharmacy.

         As time went on, Burnham wrote checks to Christopher out of his Morgan Stanley brokerage account. On occasion there was not enough cash in the account, forcing stocks to be sold to cover those checks. Burnham had to take a personal loan from Wells Fargo, secured by his investments, to cover all the checks that he was writing. Burnham's nephew, Herbert Burnham ("Herbert"), [3] was notified by Morgan Stanley when Burnham's account managers became concerned with his unusual increase in activity. Herbert stepped in to take over Burnham's financial affairs in June 2013. Burnham's check writing privileges with Morgan Stanley were subsequently terminated.

         It is unclear how much exactly was owed to Burnham due to the seemingly arbitrary designation between what was and was not denominated as a loan. Over the course of two and one half years, Burnham claims Christopher was loaned $344, 266.44. Herbert testified that, based on his review of the records, the total was "$325, 000 and change, " while Christopher claims Burnham was only owed $100, 267.97. Christopher claimed most of the money transfers were gifts rather than loans.

         After Herbert notified the authorities about these transactions, Christopher was interviewed by a detective with the sheriff's department. Christopher waived his Miranda[4]rights orally and in writing. Christopher said that he had done some odd jobs for Burnham and that, while they did not have a specific agreement for payment, Burnham always paid him for the work. Christopher also stated that he would contact Burnham to borrow money or would just ask for money and that Burnham had loaned him some money over time. He stated he had promised on many occasions to repay the money to Burnham and that on many occasions Burnham had contacted him regarding when he would be able to pay back the borrowed money. Christopher indicated he had made some payments to Burnham and that he had tried to repay some of the money. When the detective asked him how he intended to repay Burnham, Christopher indicated he had other rich friends or wealthy individuals from whom he could obtain the money if needed. Christopher stated that he was a gambling addict, he was having trouble controlling his addiction, and that at times he had lied to Burnham about why he needed money. Christopher estimated that he had received "somewhere close to a half a million dollars" from Burnham but that he should only have to repay "somewhere just shy of $200, 000" because the remainder constituted gifts and not loans. He indicated that he believed his debt from the loans was approximately $180, 000.

         On December 12, 2013, charges were filed against Christopher in the Cass County Circuit Court. The case proceeded to jury trial in September of 2015 on one count of the Class A felony of Financial Exploitation of the Elderly with a value in excess of $50, 000, in violation of section 570.145.

         During the trial, the State sought to introduce into evidence photocopies of checks from Burnham's Morgan Stanley account. While Burnham testified that it was his handwriting on the checks, there were little black areas underneath each check where Burnham said the amount of each check had been listed by the bank. Burnham believed that the originals had been highlighted by Herbert and the black areas were caused from the copying of the highlighted portions. However, Burnham was not with Herbert during the highlighting. Christopher objected, claiming that the exhibit was not a fair and accurate reproduction of the documents at the time they were created. The trial court overruled the objection and admitted the evidence.

         Additionally, after Burnham testified regarding the use of money cards, defense counsel approached the bench and objected that the information regarding the money cards from Wal-Mart and CVS pharmacy was not disclosed to Christopher in discovery, creating "a Brady[5] violation." The trial court overruled the objection.

         On September 3, 2015, the jury found Christopher guilty of the class A felony of financial exploitation of the elderly under section 570.145 with the value of the property of $50, 000 or more. Christopher was sentenced to ten years of imprisonment and ordered to pay $100, 000 in ...

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