TWO COUNTS OF EXPLOITATION OF AN ENDANGERED ADULT
A Class D Felony - Filed May 5, 2003
Count 1 (Exploitation of an Endangered Adult)
Between April 23, 2001 and September 3, 2002 in Jasper County, State of Indiana, the defendant, Kyle S. Hamilton, did recklessly, knowingly or intentionally exert unauthorized use of the property of Martha Ham, an endangered adult whose date of birth is Jan. 14, 1918, to-wit: during said period of time, the defendant wrote approximately $60,000.00 in checks on her mother’s account not leaving enough money in the account to pay for Martha Ham’s bills at the Alternacare at the Jasper County Hospital, contrary to the form of the statutes in such cases made and provided by I.C. 35-46-1-12(a)(l) and against the peace and dignity of the State of Indiana.
Count 2 (Financial Exploitation of an Endangered Adult or Dependent)
Between April 23, 2001 and September 3, 2002 in Jasper County, State of Indiana, the defendant, Kyle S. Hamilton, did recklessly, knowingly or intentionally exert unauthorized use of the property of Martha Ham, an endangered adult, to-wit: during the said period of time, the defendant wrote approximately $60,000.00 in checks on her mother’s account, part of the money in said account was Martha Ham’s social security checks that had been deposited into said account, after writing said checks there was not enough money in the account to pay for Martha Ham’s bills at the Alernacare at the Jasper County Hospital, contrary to the form of the statutes in such cases made and provided by I.C. 35-46-1-12(c) and against the peace and dignity of the State of Indiana.
Indiana Code Applicable to Charges
IC 35-46-1-12
Exploitation of dependent or endangered adult; financial exploitation of endangered adult; violation classification
(a) Except as provided in subsection (b), a person who recklessly, knowingly, or intentionally exerts unauthorized use of the personal services or the property of:
(1) an endangered adult; or
(2) a dependent eighteen (18) years of age or older;
for the person's own profit or advantage or for the profit or advantage of another person commits exploitation of a dependent or an endangered adult, a Class A misdemeanor.
(b) The offense described in subsection (a) is a Class D felony if:
(1) the fair market value of the personal services or property is more than ten thousand dollars ($10,000); or
(2) the endangered adult or dependent is at least sixty (60) years of age.
(c) Except as provided in subsection (d), a person who recklessly, knowingly, or intentionally deprives an endangered adult or a dependent of the proceeds of the endangered adult's or the dependent's benefits under the Social Security Act or other retirement program that the division of family and children or county office of family and children has budgeted for the endangered adult's or dependent's health care commits financial exploitation of an endangered adult or a dependent, a Class A misdemeanor.
(d) The offense described in subsection (c) is a Class D felony if:
(1) the amount of the proceeds is more than ten thousand dollars ($10,000); or
(2) the endangered adult or dependent is at least sixty (60) years of age.
(e) It is not a defense to an offense committed under subsection (b)(2) or (d)(2) that the accused person reasonably believed that the endangered adult or dependent was less than sixty (60) years of age at the time of the offense.
(f) It is a defense to an offense committed under subsection (a), (b), or (c) if the accused person:
(1) has been granted a durable power of attorney or has been appointed a legal guardian to manage the affairs of an endangered adult or a dependent; and
(2) was acting within the scope of the accused person's fiduciary responsibility.
Accusations Against Kyle
Kyle's Defense
That between the approximate dates of April 23, 2001 and September 03, 2002 in the City of Rensselaer, County of Jasper, State of Indiana, this crime was committed.
That while Martha E. Ham, Kyle S. Hamilton’s mother, was in Alternacare at Jasper County Hospital between February, 2002 and July, 2002, her account balance accrued to approximately $24,000 and was several months past due. Kyle S. Hamilton was Mrs. Hams Trustee from September, 2000 to September, 2002.
That on 04/03/01, Kyle S. Hamilton wrote a check, number 1031, from her mother’s trust account held at National City Bank in Rensselaer, to a computer store (Carpe Datum) believed to be in California, for $3,600. Kyle S. Hamilton also wrote an additional five checks from her mother’s trust account made out to “Martha Ham Trust” totaling $60,000 from 07/23/01 to 01/02/02. According to Kyle S. Hamilton’s testimony in a Guardianship hearing in Jasper County, IN, on 08/13/02, she admitted that most of the money received from withdrawals out of the trust account was deposited into a trust account that she established in California, her home state. Hamilton then stated that some of the money was spent on remodeling a portion of the home she resided in and the back yard. According to Attorney John Potter, he determined that neither Hamilton nor her husbands name was listed on the home they resided in. Furthermore, according to the transcripts from the Guardianship hearing on 10/12/02, Hamilton wouldn’t divulge who owned the house she and her husband resided in.
That according to Martha Ham’s Trust bank statement ending 06/22/01, on 05/29/01, Kyle S. Hamilton conducted a wire transfer from California from her mother’s trust account at National City Bank to the trust account she had established in California for $93,304.
That according to Martha Ham’s Trust bank statement ending 09/21/01, on 08/24/01, $301.50 was debited from the account via an ATM/check card while at a shopping mall in Auburn, Washington. There are also transactions on the account utilizing the check card in Pennsylvania, at a gas station in Harrison, Ohio, and several locations in Illinois including Bedford Park and Chicago.
That on August 23, 2002, Kyle S. Hamilton was revoked as Trustee by Jasper County Superior Court Judge, Phillip McGraw and Attorney, Richard Comingore was appointed Mrs. Ham’s Guardian. On 09/03/02, Hamilton had her mother sign a check for $1600.00 which was cashed at a National City bank in Merriliville, IN. According to the bank manager, La Shaun Woods, Hamilton visited the bank twice that day. The first visit she (Hamilton) explained to Woods that she believed she was still Trustee of her mother’s account. Mrs. Woods advised Detective Beier that she advised Hamilton she wouldn’t cash the check and that the only way she would was if her mother signed it. Mrs. Woods stated that Hamilton left the bank and later returned with check signed by Martha Ham. Mrs. Woods stated that Kyle S. Hamilton never advised her that her mother was legally incompetent. Mr. Comingore also denied giving Ham or Hamilton to remove the funds.
According to Mr. John Potter, Mrs. Ham’s court appointed Guardian ad Litem as of January, 2002, approximately $1300.00 of the above $1600.00 in Mrs. Ham’s account was her social security check for the month of September.
Judge McGraw signed a Court Order dated February 8, 2002, preventing Kyle from removing her mother from the Court's jurisdiction (Jasper County). In this same order, McGraw required that caregiver Tonjua Gray be allowed to continue her services to Martha.
While employed as Martha's caregiver, Gray had
- been copying Martha's mail and giving it to other individuals,
- collected financial information on Martha by posing as Martha's daughter-in-law,
- filed false charges against Kyle in an attempt to retain her $37,500 salary,
- admitted Martha to Jasper County Hospital against Kyle's orders,
- Kyle had given implicit instructions to both Gray and the local ambulance service that her mother should be taken to St. Anthony's in Crown Point unless it was a life or death emergency.
- Martha's oncologist and other doctors and records were at St. Anthony's.
- Gray took Martha to the hospital in her own vehicle to avoid having the local ambulance service take Martha to St. Anthony's.
- It was not a life or death situation.
- on admitting Martha, listed a neighbor as next of kin without listing Kyle in any way,
- informed the hospital that there were no medical records available even though she knew otherwise, and
- failed to inform hospital staff that Martha had multiple myeloma, a fact that Gray was well aware of, with nearly tragic results.
- Martha was given a contrast dye which had usage instructions specifying it not be used with patients having multiple myeloma.
- Martha had an adverse reaction and could have died from the use of that contrast dye.
Is it any wonder that Kyle did not wish to continue employing Gray in spite of McGraw's Court Order? It should be noted that Gray was employed by Kyle, not by the Trust.
Despite Kyle's wishes that Martha be at St. Anthony's rather than Jasper County Hospital, Kyle still paid the Jasper County Hospital bill through March 1, 2002, the date originally set for the first hearing. However the hearing did not take place that day because Judge McGraw was rushed to the hospital with chest pains.
Kyle remained in Indiana another three weeks after the 1st. Although Judge McGraw was back on the bench on March 4 or 5, nobody was able to reschedule a hearing during that time.
Kyle was acting within the scope of her fiduciary responsibility by refusing to pay the Jasper County Hospital Bill after March 1. Kyle was kept from transferring her mother to a better facility by the Court and she believed that the Trust should not be held financially liable for actions taken by the Court which she considered not to be in her mother's best interest.
The inference is made that a check written to a computer store was of no benefit to Kyle's mother. However, the check paid for a laptop computer along with service upgrades and software. Kyle kept all of her mother's financial affairs on the laptop. She also attempted to use the laptop to pay her mother's bills on a more timely basis through the internet. Unfortunately, however, she was not able to get the connections worked through with National City Bank and various vendors needed to accomplish this. She was able to accomplish this with Union Bank of California.
Kyle also used the laptop as a photo gallery for her mother. Kyle put family photos and photos that she had taken of events that her mother attended. She then set up slideshow presentations on the laptop and would help her mother to remember the names that went with the various faces.
ALL fund transfers refered to in the accusations were authorized by power of attorney and the Trust. These funds were transferred to a TRUST ACCOUNT in California in preparation for Martha's move to live with Kyle and any funds used for modifications to the property were for the benefit of and caring for Martha after her move.
According to IC 30-5-5-5(a)(2), Kyle had the authority to "Open in the name of the principal alone, or in a way that clearly evidences the principal and attorney in fact relationship, a deposit account with a bank, trust company, savings association, credit union, thrift company, brokerage firm, or other institution that serves as a depository for funds selected by the attorney in fact, or hire a safe deposit box or vault space and make other contracts to procure services made available by a banking institution as the attorney in fact considers desirable."
In the accussation a big deal is made of the fact that the property in question was not titled in either Kyle's or her husband's name and that Kyle refused to divulge the identity of the property owner. At the time that she refused to identify the property owner, Kyle was trying to protect his privacy. This individual performs many philanthropic acts anonomously. Kyle had been very close friends with him for over 20 years. They had a verbal agreement regarding the property in question and they worked often and honorably with verbal agreements.
Furthermore, according to IC 30-5-5-2(a)(5), Kyle had the authority to "Use, develop, modify, alter, replace, remove, erect, or install structures or other improvements upon real property in which the principal has or claims to have an interest." This specifically states that Martha only had to CLAIM to have an interest, not that she be listed on any deeds or titles.
It is implied that there is something criminal about any expenditures Kyle made outside of Rensselaer, such as "...at a shopping mall in Auburn, Washington. There are also transactions on the account utilizing the check card in Pennsylvania, at a gas station in Harrison, Ohio, and several locations in Illinois including Bedford Park and Chicago." What's not explained is that
- winter clothes for Martha were purchased in Auburn, Washington, because Kyle found a much better selection there than where she lived in Southern Californa,
- when Kyle visited her mother she often took her mother to visit friends and family in other locations, particularly in the Chicago area,
- Kyle's mother had a very friendly relationship with Kyle's sister-in-law and Martha encouraged Kyle to visit the sister-in-law in Westchester, Ohio, whenever Kyle visited with her mother, and
- the billing for purchases made over the internet for things such as airline tickets and car rentals often show up in states other than where the transaction actually took place.
More to come . . .