        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

                         TYRONE JAVELLANA,
                             Appellant,

                                    v.

                         STATE OF FLORIDA,
                              Appellee.

                             No. 4D13-1952

                             [June 24, 2015]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Jeffrey R. Levenson, Judge; L.T. Case No. 10-003225
CF10B.

  Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant
Public Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Monique Rolla,
Assistant Attorney General, West Palm Beach, for appellee.

CIKLIN, J.

   Tyrone Javellana (“the defendant”) appeals his conviction for financial
exploitation of an elderly person or disabled adult, arguing that his
motion for judgment of acquittal should have been granted. We agree,
and we reverse and remand for the trial court to discharge the defendant.

   The evidence at trial showed that the defendant and his wife, who was
a co-defendant, were well acquainted with Mary Teris, an elderly woman
with a vast financial estate.     The defendant’s wife worked at an
investment firm and she began assisting with Teris’ account in the early
1980s. In 1996, Teris executed a will, a special needs trust, and a
revocable trust. The estate plan focused on the long-term care of Teris’
adult sons, who were not capable of independent living.

   Beginning in 2008, Teris made multiple amendments to the estate
documents, under the advice of a different attorney than the one who
had drafted the original documents. The successor attorney testified he
considered himself a “good friend” of the defendant’s wife, who referred
him business and also referred Teris to him “to review her trust and
make some changes.”

   The documents were amended so that, ultimately, the defendant and
his wife were residual beneficiaries of the estate. The defendant and his
wife served as witnesses to Teris’ execution of some of the amendments,
and at some point in time, his wife became aware of the substance of the
amendments. However, there was no evidence that the defendant, who
also chauffeured Teris on errands, had any knowledge of a plan to exploit
the victim. As for Teris’ mental capacity at the time she executed the
amendments to her estate documents, there was conflicting evidence
before the jury.

   On appeal, the defendant argues that his conviction under a
principals theory constituted error as there was no evidence he
participated in the exploitation. We agree.

      To convict under a principals theory, the State is required to
      prove that the defendant had a conscious intent that the
      criminal act be done and . . . the defendant did some act or
      said some word which was intended to and which did incite,
      cause, encourage, assist, or advise the other person or
      persons to actually commit or attempt to commit the crime.

Hall v. State, 100 So. 3d 288, 289 (Fla. 4th DCA 2012) (citation and
internal quotation marks omitted).

   Guilt as a principal may be established by circumstantial evidence,
“but such evidence must be both consistent with guilt and inconsistent
with any reasonable hypothesis of innocence; evidence which establishes
nothing more than a suspicion, or even probability, of guilt is not
sufficient.” K.O. v. State, 673 So. 2d 47, 48 (Fla. 4th DCA 1995) (citation
omitted).

    The state points to the following evidence of its allegations that the
defendant aided and abetted his wife’s exploitation of Teris: 1) that the
defendant had a long-standing relationship with Teris and should have
known she was incapacitated, 2) that he drove Teris to the attorney’s
office, where she executed the estate document amendments that were
favorable to him, 3) that he and his wife waited until Teris had severe
dementia to have the attorney draft the amendments, and 4) that two
weeks after they were given power of attorney, they used the health care
surrogate document to arrange for a mental health physician to conduct
a “court-ordered” mental competency evaluation of Teris when in fact

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there was no such court order.

   While we do not decide whether there was sufficient evidence to
establish that the defendant’s wife exploited Teris, we find the evidence
was insufficient, however, to allow the jury to infer that the defendant
aided and abetted or otherwise willingly participated in any such
exploitation. The state points to no evidence establishing that the
defendant was ever aware that Teris was amending her estate documents
to benefit the defendant and his wife. There was no evidence that the
defendant was involved in arranging the appointment for a court-ordered
mental competency evaluation or that the defendant even spoke to his
wife about Teris’ estate.      There was simply no evidence that the
defendant knew anything about Teris’ estate or of any plan by his wife to
exploit Teris; thus, there was no evidence of his conscious intent that the
crime be committed.

   Additionally, the web of circumstantial evidence introduced against
the defendant did not refute the obvious hypothesis of innocence—that
the defendant was simply helping Teris, someone he knew for many
years, by serving as her occasional driver and witnessing the execution of
document revisions at the office of Teris’ attorney.

   Accordingly, we reverse and remand to the trial court to vacate the
conviction, enter a judgment of acquittal as to the charged offense, and
discharge the defendant.

   Reversed and remanded with directions.

FORST and KLINGENSMITH, JJ., concur.

                           *         *        *

   Not final until disposition of timely filed motion for rehearing.




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