MILLER, P. J., DOYLE, P. J., and REESE, J.
Miller, Presiding Judge.
Escamilla was convicted by a jury of exploitation of an elder
person (OCGA § 30-5-8 (July 1, 2012)). 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.
the evidence in the light most favorable to the verdict,
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.
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 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. 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.
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.
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 Escamilla of exploitation of an elder
person. She moved for a new trial, which the trial court
denied, and this appeal followed.
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.
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
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 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 S.E.2d 504) (2005).
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 S.E.2d 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.
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.
"[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 S.E.2d
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 S.E.2d 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.)
whether alleging that the money was a gift is a defense to a
charge for exploitation of an elder person, Escamilla cannot