Every legal dispute confronts the rules of evidence. Can a person’s past, specifically uncharged bad acts, be used as evidence in elder abuse lawsuits? A recent court ruling addressed this very question. The case stands out due to the unusual circumstances surrounding the elder abuse and conviction for murder by omission.

The Case People v. Zemek, 93 Cal.App.5th 313 (2023).

In People v. Zemek, 93 Cal.App.5th 313 (2023), a caretaker was found to have committed elder abuse and murder by omission. The basis for the claims were that: the caretaker knew the victim was incapable of taking care of herself, that the victim was taking medication that could be lethal; that the victim had overdosed on 3 prior occasions, the caretaker had the victim see her criminal defense attorney to change her will and make the caretaker the beneficiary, the caretaker knew the victim had hundreds of the deadly pills in her house, and the caretaker left the victim alone, unattended for several days, did not check on the victim, and did not respond to the victim’s telephone calls.

Immediately upon the deceased’s death, the caretaker began clearing out her accounts. The caretaker also used the deceased’s credit cards more than 100 times and pretended to be the deceased in calls with the credit card company seeking an extension of credit.

The Prior Bad Acts.

To further support the case for elder abuse and murder by omission, the prosecution introduced two other acts of the caretaker in the past. Notably, these prior acts had not resulted in convictions.

The first bad act involved the caretaker having worked for a doctor, and while the caretaker performed a sun spot removal, the caretaker stole jewelry from the patient’s purse. The caretaker, of course, was not a doctor.

The second prior bad act occurred during a house call to a patient from the surgical office where the caretaker worked. While the patient was asleep after receiving medication administered by the caretaker, the caretaker stole credit cards, cash, checks, and jewelry.

Admissibility of Prior Uncharged Acts.

The Court upheld the admissibility of the two prior bad acts even though character evidence is inadmissible. This is because an exception exists for evidence offered to prove intent, knowledge, identity, or the existence of a common design or plan. The prior acts however must be sufficiently similar to support the inference that the defendant “probably harbor[ed] the same intent in each instance.” Citing People v. Ewoldt (1994) 7 Cal.4th 380, 402.

The Court concluded that the evidence was admissible to show fraud, the caretaker’s motive – greed, and a similar scheme.

The primary issue on appeal was whether the prior acts were sufficiently similar to the elder abuse case. The Court found the prior bad acts were sufficiently similar because they shared common elements. That is, all three incidents involved quasi-medical procedures, occurred within a medical context where the caretaker was working, and the caretaker stole from each victim.

The Court found that the prior acts do not have to be identical to the conduct at issue in the trial. It was fine if the amount stolen was less and that the prior bad acts did not involve a murder by omission.

Conclusion.

While this murder by omission case involves highly unusual facts it illustrates that prior similar acts will come into evidence, even in civil matters. The standard for admissibility is not exceedingly high. The prior acts do not need to have resulted in convictions. They must only be sufficiently similar.

Then, when admitted, the evidence is admitted only to prove fraud, or “intent, knowledge, identity, or the existence of a common design or plan.” Evid. Code, § 1101, subd. (b).

However, the caveat is that the evidence will include an instruction that a jury cannot conclude from the evidence that the alleged has a bad character or was disposed to commit crime.

Still, the prior acts come into evidence.

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