       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

                          CYNTHIA FRANKE,
                             Appellant,

                                    v.

                         STATE OF FLORIDA,
                              Appellee.

                             No. 4D13-1678

                           [January 27, 2016]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Jeffrey R. Levenson, Judge; L.T. Case No. 10-3225
CF10A.

  Antony P. Ryan, Regional Counsel, and Richard G. Bartmon, Assistant
Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel,
West Palm Beach, for appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Luke R.
Napodano, Assistant Attorney General, West Palm Beach, for appellee.

             ON MOTION FOR REHEARING AND/OR CLARIFICATION

STEVENSON, J.

   The State has filed a Motion for Rehearing and/or Clarification. We
deny the motion. However, we withdraw our previously issued opinion
and substitute the following.

    Cynthia Franke appeals her conviction of financial exploitation of the
elderly. Because the State’s evidence was not inconsistent with her theory
of innocence, we reverse.

   Franke and the alleged victim, Mary Teris, have been friends for thirty
years. They met when Teris became a client of the investment firm where
Franke worked as a stockbroker. Teris was at the office daily and was very
involved with her accounts. Over the years, Franke and Teris became very
close and had a mother/daughter-type relationship. Franke was always
there for Teris, driving her where she needed to go and helping her with
her two sons.

   In 1996, Teris prepared a special needs trust for her two sons, a
revocable trust, a power of attorney, and a will with Mr. Grand, her estate
planning attorney. In 2008, she brought the trust to Franke and told her
she wanted to make changes to it. Mr. Grand was out of town, so Teris
asked Franke about an attorney she had seen at the investment firm, Mr.
Friedman.

   Teris met with Mr. Friedman and made multiple changes to the trust.
At issue are changes made on June 22, 2009, when Teris changed the
trustee of the trust from her sister to Franke and made Franke a residuary
beneficiary of the trust. According to Mr. Friedman, Teris made the
changes because her sisters were close to her age and would be unable to
manage her property if something happened to her. She wanted someone
she could trust to manage her assets and take care of her sons, so she
chose Franke. Teris named Franke as residuary beneficiary because her
sons were already taken care of with the special needs trust, her sisters
did not need her money, and Franke had always been there for her.

    When Franke learned that Teris had made her a trustee and
beneficiary, she became upset because she knew there would be a conflict
of interest with her work. Franke told her boss, who informed her that she
could not be trustee, but could remain a beneficiary. Teris then amended
the trust to make her accountant a co-trustee, along with herself.

   In 2010, Franke was arrested and charged with exploitation of the
elderly, under section 825.103, Florida Statutes (2009). Franke moved for
judgment of acquittal at the end of the State’s case, arguing the State did
not prove there was any “endeavoring to obtain” on her part. The trial
court denied the motion, and Franke was convicted. This appeal followed.

   “Where the only proof of guilt is circumstantial, no matter how strongly
the evidence may suggest guilt, a conviction cannot be sustained unless
the evidence is inconsistent with any reasonable hypothesis of innocence.”
Everett v. State, 831 So. 2d 738, 741 (Fla. 4th DCA 2002). A trial court
should grant a motion for judgment of acquittal “in a circumstantial
evidence case if the State fails to present evidence from which the jury can
exclude every reasonable hypothesis except that of guilt.” Id.

   The State’s case was based on two theories under section 825.103,
Florida Statutes. The first was that: “(1) the defendant stood in a position
of trust and confidence with the victim; (2) the defendant obtained [or
endeavored to obtain] funds belonging to the victim with the intent to

                                     2
temporarily or permanently deprive the victim of those funds; and (3) the
defendant used deception or intimidation to obtain the funds.” Everett,
831 So. 2d at 741; see also § 825.103(1)(a), Fla. Stat. (2009). The second
theory required the State to prove that Franke obtained or endeavored to
obtain funds belonging to Teris with the intent to temporarily or
permanently deprive Teris of those funds, and that Franke knew or should
have known that Teris lacked the capacity to consent. § 825.103(1)(b);
Everett, 831 So. 2d at 741.

    Both theories rely on the common element that Franke obtained or
endeavored to obtain Teris’s property. “‘Endeavor’ means to attempt or
try.” § 825.101(6), Fla. Stat. (2009). Obtain “means any manner of: (a)
[t]aking or exercising control over property; or (b) [m]aking any use,
disposition, or transfer of property.” § 825.101(10). This element is
lacking under either theory here.

   Under the first theory, the State argued that Franke endeavored to
deceptively obtain Teris’s property by having herself named as the
residuary beneficiary when she “guided” Teris to Mr. Friedman, and was
at the office—but not in the room—when some of the amendments were
executed. However, this evidence is not inconsistent with Franke’s theory
that being named beneficiary was an unsolicited gift. Franke and Teris
had been friends for thirty years, and Franke constantly helped Teris
throughout the years.

   Under the second theory, the State argued that Franke endeavored to
obtain Teris’s property knowing that Teris lacked the capacity to consent.
While the State did present sufficient evidence for a jury to conclude that
Teris lacked capacity, this theory fails for the same reason as the first—
the evidence was not inconsistent with Franke’s hypothesis that she did
not obtain or endeavor to obtain Teris’s property because Teris named her
a beneficiary as an unsolicited gift.

   Finally, we note that Franke would not have received any of Teris’s
property until after Teris passed away. Even then, Franke would receive
something only if anything remained in the trust. Although we need not
decide the issue in this case, it does not seem that obtaining the future
expectancy of property under a will or trust falls under the purview of the
statute. Prior reported cases which we have found addressing section
825.103 have concerned a present transfer of property, not a future
expectancy in a will or trust. See Guarscio v. State, 64 So. 3d 146, 147
(Fla. 2d DCA 2011) (defendant used victim’s proceeds from refinancing
mortgage on a house); Bernau v. State, 891 So. 2d 1229, 1230 (Fla. 2d
DCA 2005) (victim endorsed $847,000 check to defendant); McNarrin v.

                                    3
State, 876 So. 2d 1253, 1254 (Fla. 4th DCA 2004) (defendant cashed
$6000 check signed by victim); Everett, 831 So. 2d at 739–40 (defendant
closed out one of victim’s bank accounts in the amount of $38,604.79 at
the victim’s request).

   The State failed to present evidence inconsistent with Franke’s
hypothesis of innocence that she did not obtain or endeavor to obtain
Teris’s property because Teris named her a beneficiary as a gift.
Accordingly, we reverse the trial court’s denial of Franke’s motion for
judgment of acquittal and remand for discharge.

  Reversed and remanded for discharge.

WARNER and FORST, JJ., concur.

                          *        *       *




                                  4
