Appeal denied in Dallas’ 4949 Swiss Ave. estate looting case (TX)

Score one for justice as the Fifth District Court of Appeals this past week upheld the trial court’s judgment in the case of Mark McCay, the Dallas antique dealer convicted in 2012 for conspiring to exploit Mary Ellen Bendtsen’s declining mental (and physical) state such that she signed a will leaving her iconic 4949 Swiss Ave. house to McCay and his partner, Justin Burgess,  instead of her daughter, Frances Ann Giron. Bendtsen died in March 2005.

This case provided important example of threats facing an unsuspecting public via savvy financial predators using probate venues and/or related legal instruments (wills, trusts, guardianships or powers of attorney) for personal enrichment by diverting assets from intended heirs and beneficiaries.

A 2012 trial ended with a jury of 10 women and two men finding McCay guilty of attempted theft of more than $200,000.  The verdict indicated the jury’s agreement with prosecutors that McCay acted with specific intent to commit theft by first having the 88-year-old Bendtsen execute a will on Feb. 22, 2005, as she lay in an ICU ward at Baylor University Medical Center at Dallas just hours after being brought to the hospital with a stroke diagnosis and then later by filing that will for probate at 8:04 a.m. March 2, about seven hours after she died.

Though the conviction brought up to 20 years potential prison time, state District Judge John C. Creuzot instead handed down a sentence of four years probation, 30 days in the county jail and a $1,000 fine.

McCay filed an appeal citing four basic issues: the indictment (1) failed to allege an offense and (2) failed to provide constitutionally sufficient notice of an offense; and (3) the evidence is legally insufficient to support his conviction; and (4) the trial court abused its discretion by admitting evidence of an extraneous offense.

In the appeals court ruling, Justice Molly Francis rejects McCay’s contention that prosecutors failed to allege an offense. She noted reviewing the indictment charge for which McCay went to trial:

with specific intent to commit the offense of theft of property of an aggregate value of $200,000 or more, did all of the following, which amounted to more than mere preparation that tended but failed to effect the commission of said intended theft, to wit: Defendant, with intent to deprive any other person having a greater right to possession of the property than Defendant upon the death of Mary Ellen Bendtsen, did cause Mary Ellen Bendtsen to execute a will, naming Defendant as a beneficiary to receive her property upon her death; and Defendant did thereafter file said will for probate.

The ruling acknowledges McCay’s argument that “the indictment failed to allege an illegal act, failed to identify the owner of the property appellant attempted to steal, and failed to describe the property that was the subject of the attempted theft.” In responding, however, the court found “the indictment needed only to allege that appellant, with the specific intent to commit a theft, committed acts amounting to more than preparation—here, causing Bendtsen to execute the Baylor will and filing it for probate—which tended, but failed, to effect the commission of the theft.”

In responding to McCay’s argument that causing a person to execute and file a will for probate are not illegal acts, Francis writes how “if that conduct were standing alone, he would be correct. But the indictment charged that appellant acted ‘with specific intent to commit the offense of theft.’”

Court testimony included much about McCay’s past pattern of predatory behavior. Witnesses detailed conduct that included targeting vulnerable parties, inciting family conflict, using isolation as a tool, taking advantage of a major health downturn – all tactics commonly seen in estate looting actions.

In another important point, Francis addressed McCay’s assertion that “prosecution in this case is an inappropriate use of the theft statute and an attempt to criminalize a will contest.”

Realistically, many bad acts are perpetrated because estate looting is not treated as a crime and instead too often relegated to the pay-to-play civil court system making justice pursuits cost prohibitive and otherwise out of reach for many probate abuse targets. And make no mistake, would-be predators know this to be the case. It’s the unassuming public that remains in the dark.

Referring to a Texas Penal Code statute, Francis responds how “the statute clearly applies to a theft when the appropriation is accomplished using a legal document” and continues that the court sees “no reason why such an unlawful transfer cannot be made by will.”

Francis further writes: “the legislature has expressed its intent in clear terms: when an actor appropriates property knowing its owner cannot give effective consent to the transfer, the appropriation—or attempted appropriation—is a criminal offense, not a probate matter.”

With regard to the issue of notice, the ruling states how the charge “sufficiently identified both the property at issue and the owners of that property so as to give appellant the notice he needed to prepare his defense.”

McCay’s contention that the evidence leading to his conviction was legally insufficient prompted a review of testimony by the court. Francis details the numerous witnesses who testified to McCay’s open discussions of working to gain control of the 4949 Swiss Ave. property as well as others recounting discomfort with the defendant’s conduct with regard to Bendtsen.

She concludes:

We conclude there was ample evidence that appellant intended to take Bendtsen’s estate and thus to deprive anyone who would otherwise inherit that estate from their rightful inheritance. Rational jurors could have concluded beyond a reasonable doubt that appellant possessed the criminal intent necessary to commit an attempted theft.

McCay’s fourth assertion of the trial court abusing its discretion by admitting evidence of an extraneous offense relates to testimony on his relationship with Jack and Irene Farrington. This testimony included allegations of the couple’s mistreatment by the defendant including his attempts to obtain possession of their home and property.

In noting the pattern that the Farrington testimony revealed, specifically McCay insinuating himself into the lives of these elderly persons and attempting to pressure Jack Farrington into signing over the couple’s home and accounts, Francis calls it “highly probative of his criminal intent in Bendtsen’s case.”

The ruling states that while McCay contends Bendtsen wanted to make first a power of attorney and then a will favoring him and that in doing so, she transferred the bulk of her estate to him voluntarily, the Farrington relationship – if believed by the jury – “showed appellant’s intent to isolate frail individuals from their families and pressure them into legally transferring property, especially the interest in their homes.” With that, the court additionally overruled this issue.

Two others, Burgess and attorney Edwin C. Olsen IV, also face charges. At the time of McCay’s sentencing, Burgess was alleged to have stage 4 throat cancer. Court records show both are due to appear in court within the next eight weeks.

Lou Ann Anderson is an information activist. As a contributor at Watchdog Arena, Raging Elephants Radio and Examiner Austin, she writes and speaks on a variety of public policy topics. Lou Ann is the creator and online producer at Estate of Denial®, a website that addresses probate abuse via wills, trusts, guardianships and powers of attorney as well as other taxpayer advocacy issues.

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