                               SECOND DIVISION
                                 MILLER, P. J.,
                            DOYLE, P. J., and REESE, J.

                      NOTICE: Motions for reconsideration must be
                      physically received in our clerk’s office within ten
                      days of the date of decision to be deemed timely filed.
                                  http://www.gaappeals.us/rules


                                                                     February 22, 2018




In the Court of Appeals of Georgia
 A17A2011. ESCAMILLA v. THE STATE.

      MILLER, Presiding Judge.

      Ruth Escamilla was convicted by a jury of exploitation of an elder person

(OCGA § 30-5-8 (July 1, 2012)).1 On appeal, she alleges that (1) the evidence was

insufficient to sustain her conviction; and (2) the trial court erred by failing to (a)

instruct the jury on her defense that the money the victim gave her was a gift, and

(b) define the term “undue influence” for the jury. After a thorough review of the

record, we affirm because the evidence was sufficient to support the conviction,

Escamilla cannot show plain error in the trial court’s failure to sua sponte instruct the

jury on her defense, and Escamilla has waived any challenge to the trial court’s

instruction on undue influence.

      1
          The jury acquitted Escamilla of theft by taking and forgery in the third degree.
      Viewing the evidence in the light most favorable to the verdict,2 Escamilla met

the victim in 2006 when Escamilla worked as a teller at a Bank of America branch,

where the victim had an account. Escamilla moved to another state, but when she

returned to Georgia in 2010, she began working as a personal banker at a SunTrust

Bank branch in a Publix grocery store. While working there, she became reacquainted

with the victim, who also had an account at SunTrust.

      As early as 2007, the victim’s family members and friends began to notice

changes in her demeanor, including repetitive behavior and memory loss. In March

2013, the victim was diagnosed as suffering from Alzheimer’s disease.

That same year, the victim noticed money missing from her account at SunTrust. The

victim mentioned this to several people, as she was concerned that something was

going on with her finances. The victim also stated that the “nice lady at the bank” was

helping her. As a result, the victim decided to close her SunTrust account and

consolidate the money into an account at Bank of America. Escamilla helped the

victim withdraw the funds, totaling $304,749.20, and advised her to get a certified

check in that amount made out to “CASH.” Escamilla then took the victim to Bank

of America to deposit the check into the victim’s existing account. Once the money

      2
          Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

                                          2
was deposited, Escamilla helped the victim obtain a cashier’s check made out to

“CASH” for $304,000, which Escamilla deposited into her own account.3 Escamilla

subsequently bought a car, clothes, and dinners for her family, and took a vacation.

She also transferred nearly $50,000 to a new savings account.

      In May 2013, after noticing that money was missing from the victim’s account,

the victim’s niece called the police. When questioned, Escamilla denied signing the

victim’s name on the checks and stealing from the victim, and she stated that the

money was a gift. Escamilla, however, never reported the gift to the IRS, never told

SunTrust that a client had given her such a gift, and she made a false entry in

SunTrust’s computer system when explaining why the victim closed her accounts.

      The victim’s niece, who held her power of attorney, testified that the signatures

on the victim’s prior checks did not match the signature on the $304,000 check.

Additionally, the niece explained that the person who wrote the $304,000 check used

an ampersand when writing the amount, which was something the victim never did.

The victim’s family members also testified that they had never known the victim to

give financial gifts of more than several hundred dollars. The jury convicted

      3
       There are photos of Escamilla and the victim at the bank, and photos of
Escamilla depositing the funds into her own account. Additionally, Escamilla signed
her own name on the back of the check she deposited.

                                          3
Escamilla of exploitation of an elder person. She moved for a new trial, which the

trial court denied, and this appeal followed.

      1. Escamilla argues that the evidence was insufficient to sustain her conviction

because the State failed to prove any acts of exploitation or that she acted with undue

influence or deception. We disagree.

      Under the version of the statute in effect at the time Escamilla committed the

offense, “the abuse or exploitation of any disabled adult or elder person shall be

unlawful.” OCGA § 30-5-8 (a) (1) (A) (July 1, 2012). “Exploitation” was defined as

“the illegal or improper use of a . . . elder person or that person’s resources through

undue influence, . . . for one’s own or another’s profit or advantage.” OCGA § 30-5-3

(9) (2009). The statute does not define “undue influence,” but the plain meaning of

this phrase is “improper influence that deprives a person of freedom of choice or

substitutes another’s choice or desire for the person’s own.” See www.merriam-

webster.com/legal/undue%20influence.

      The evidence at trial showed that Escamilla assisted the victim in removing

over $300,000 from the victim’s account, she instructed the victim to write the check

for “CASH,” and she deposited the money into her own account. Although Escamilla

testified that she intended to use the money to open an adult day care center, she in

                                          4
fact used that money to buy a car, clothes, dinners, and a vacation. There was

additional evidence that the victim suffered from dementia and was confused, that she

had never before given such a large monetary gift, and that the signature on the

victim’s other checks did not match the signature on the $300,000 check. This

evidence authorized the jury to conclude that Escamilla used deception or undue

influence to obtain money from the victim for Escamilla’s own personal gain. See

Marks v. State, 280 Ga. 70, 72-73 (1) (a) (623 SE2d 504) (2005).

      Moreover, Escamilla testified in her own defense, and it is the jury’s role to

evaluate the credibility of witnesses. “This Court does not weigh the evidence,

determine witness credibility, or resolve evidentiary conflicts. Rather, those duties

rest within the province of the jury and it is the jury’s function to draw an inference

from the evidence when more than one inference can be drawn.” (Citations and

punctuation omitted.) Nelson v. State, 317 Ga. App. 527, 534 (2) (731 SE2d 770)

(2012). The jury weighed the evidence when it acquitted Escamilla of theft and

forgery and convicted her of exploitation of an elderly person, and we will not disturb

that decision where, as here, there is evidence to support it.

      2. Escamilla argues that the trial court committed reversible error when it failed

to instruct the jury on her sole defense that the money was a gift. We disagree.

                                          5
       Generally, “[t]he trial court must charge the jury on the defendant’s sole

defense, even without a written request, if there is some evidence to support the

charge.” Tarvestad v. State, 261 Ga. 605, 606 (409 SE2d 513) (1991). Nevertheless,

because Escamilla did not request a jury instruction on her defense either orally or in

writing, we review this argument for plain error. White v. State, 291 Ga. 7, 8-9 (2)

(727 SE2d 109) (2012) (applying plain error review to omission of an unrequested

instruction on defendant’s sole defense). Under plain error review, we will reverse a

conviction only if all four prongs of the plain error test are met: “the instruction was

erroneous, the error was obvious, the instruction likely affected the outcome of the

proceedings, and the error seriously affects the fairness, integrity or public reputation

of judicial proceedings.” (Citation omitted.) Id.

       Pretermitting whether alleging that the money was a gift is a defense to a

charge for exploitation of an elder person, Escamilla cannot meet her burden under

the plain error test.4




       4
         Escamilla recognizes that there is no criminal jury instruction for the defense
of gift. She argues, however, that the trial court could have looked to the civil jury
instruction. In light of our conclusion that there was no error, we need not reach the
question of what an appropriate instruction would have been.

                                           6
      Here, the trial court instructed the jury that the state had the burden of proof

and was required to establish Escamilla’s guilt beyond a reasonable doubt, and that

to be convicted Escamilla must have acted with the requisite specific intent to exploit

the victim. Thus, the jury instructions adequately covered the elements of the charge

and were not erroneous. Moreover, in her own testimony, Escamilla claimed that the

victim had given the money as a gift,5 and in finding Escamilla guilty, the jury

necessarily rejected Escamilla’s testimony. Thus, Escamilla has not shown that the

outcome of her trial would have been different had the jury been instructed on her

defense. See Hall v. State, 258 Ga. App. 156, 157 (1) - (2) (573 SE2d 415) (2002).

Accordingly, Escamilla cannot meet her burden of showing plain error, and this

enumeration of error has no merit.

      3. Escamilla next argues that the trial court erred by not instructing the jury on

the definition of “undue influence.” We discern no error.

      During deliberations, the jury asked whether there was a legal definition of

“undue influence.” After discussing the issue with both the prosecutor and defense



      5
        Closing arguments were not transcribed. Nevertheless, there is no dispute that
Escamilla’s defense, in her own testimony, was that the victim gave her the money
as a gift.

                                          7
counsel, the trial court advised the jury that it must rely on its own understanding of

the plain meaning of those words. Importantly, Escamilla agreed to this response.

       Escamilla has waived her challenge to the trial court’s response by failing to

object to – and instead affirmatively agreeing to – the trial court’s answer. Hill v.

State, 269 Ga. App. 459, 460-461 (1) (604 SE2d 300) (2004). Thus, this enumeration

presents nothing for us to review.6

       Accordingly, for the foregoing reasons, we affirm the denial of Escamilla’s

motion for new trial.

       Judgment affirmed. Doyle, P. J., and Reese, J., concur.




       6
        We note that there is an exception to this waiver rule. See Hill, supra, 269 Ga.
App. at 461 (1) (“the only exception to the waiver rule is when a trial court commits
a substantial error in the charge that is harmful as a matter of law. . . . [h]owever, [the
defendant] must show that the allegedly erroneous charge was blatantly apparent and
prejudicial to the extent that it raises a question whether [she] was deprived, to some
extent, of a fair trial. No issue is presented for appellate consideration unless a gross
miscarriage of justice attributable to the jury charge is about to result.”) (citations
omitted). Escamilla has not argued, much less shown, that this exception applies.

                                            8
