SIX COUNTS OF CONVERSION
A Class A Misdemeanor - Filed July 15, 2004
Count 1
On or about May 29, 2001 in Jasper County, State of Indiana, Kyle S. Hamilton did knowingly exert unauthorized control over the property of Martha Ham, or the Martha E. Ham Revocable Living Trust, to-wit: cash in the amount of $93,304.49, contrary to the form of the statutes in such cases made and provided by I.C. 3 5-43-4-3 and against the peace and dignity of the State of Indiana.
Count 2
On or about July 23, 2001 in Jasper County, State of Indiana, Kyle S. Hamilton did knowingly exert unauthorized control over the property of Martha Ham, or the Martha E. Ham Revocable Living Trust, to-wit: cash in the amount of $25,000.00, contrary to the form of the statutes in such cases made and provided by IC. 35-43-4-3 and against the peace and dignity of the State of Indiana.
Count 3
On or about October 31, 2001 in Jasper County, State of Indiana, Kyle S. Hamilton did knowingly exert unauthorized control over the property of Martha Ham, or the Martha E. Ham Revocable Living Trust, to-wit: cash in the amount of $10,000.00, contrary to the form of the statutes in such cases made and provided by I.C. 3 5-43-4-3 and against the peace and dignity of the State of Indiana.
Count 4
On or about November 8, 2001 in Jasper County, State of Indiana, Kyle S. Hamilton did knowingly exert unauthorized control over the property of Martha Ham, or the Martha E. Ham Revocable Living Trust, to-wit: cash in the amount of $10,000.00, contrary to the form of the statutes in such cases made and provided by IC. 35-43-4-3 and against the peace and dignity of the State of Indiana.
Count 5
On or about December 4, 2001 in Jasper County, State of indiana, Kyle S. Hamilton did knowingly exert unauthorized control over the property of Martha Ham, or the Martha F. Ham Revocable Living Trust, to-wit: cash in the amount of $10,000.00, contrary to the form of the statutes in such cases made and provided by IC. 35-43-4-3 and against the peace and dignity of the State of Indiana.
Count 6
On or about January 2, 2002 in Jasper County, State of Indiana, Kyle S. Hamilton did knowingly exert unauthorized control over the property of Martha Ham, or the Martha E. Ham Revocable Living Trust, to-wit: cash in the amount of $5,000.00, contrary to the form of the statutes in such cases made and provided by IC. 35-43-4-3 and against the peace and dignity of the State of Indiana.
Indiana Code Applicable to Charges
IC 35-43-4-3
Conversion
Sec. 3. A person who knowingly or intentionally exerts unauthorized control over property of another person commits criminal conversion, a Class A misdemeanor.
Accusations Against Kyle
Kyle's Defense
Each of these counts comes from checks that were drawn on the Martha E. Ham Revocable Living Trust, National City Bank, Rensselaer, IN and signed by Kyle Hamilton.
All checks were payable to the Martha B. Ham Revocable Living Trust but not deposited in the local Trust Account. All checks were indorsed by Kyle Shana Hamilton without showing any representative capacity.
As of March 16, 2004, no monies which were so transferred above have been returned or account made to the successors of Kyle Hamilton. Inquires made to the Union Bank of CA, Manhattan Beach, CA branch by successor Trustee, Richard Comingore, show approximately $15.00 remaining in said account.
Kyle's intentions were to take care of her mother, because that was what her mother wanted. Kyle figured that the best way to do this when her mother reached a point where she could no longer live at home alone, was to move her mother to California to live with Kyle and her husband. With that in mind she began preparing for her mother's eventual move by opening a Martha B. Ham Revocable Living Trust account at the Union Bank of California. She also retained an attorney in California to aid in her mother's affairs. She made arrangements for her mother to be the patient of Dr. Lauren Vu whose office was less than a mile from the house. Kyle also made contact and arrangements with the local Hawthorne Seniors Center, a local Hospice organization in Inglewood, and a local Alzheimer's Group.
A part of moving her mother meant transferring monies from National City Bank in Rensselaer, Indiana, to a bank close to where her mother would be living in California. Additionally, Kyle wanted to get away from National City Bank because of the difficulties in dealing with the Rensselaer branch.
In John Potter's March 11, 2004 deposition, he stated that there was nothing wrong in Kyle moving funds from National City Bank to Union Bank of California. On page 62 of the deposition he states that "they (the checks) were written from trust of Martha Ham to the trust of Martha Ham."
On page 78 of his deposition, Potter infers that the National City Bank had a bad reputation and commentd, "You have to dial an 800-number in South Carolina to get anything done over there."
The fact is, Kyle had a power-of-attorney that authorized her to do whatever she felt she needed to do to care for her mother, including determining where her mother would live (IC 30-5-3).
As one attorney put it the authority given to Kyle in the power-of-attorney was so complete that she "could put all the money in a pile and burn it and still be within the law."