Superior Court Judge Peter Cahill on Monday rejected a motion to dismiss charges alleging that a Payson doctor and his wife took advantage of their position to manipulate a dying woman into giving them her $500,000 estate.
Attorneys for Dr. Michael Lowe and Heather Driscoll-Lowe argued that police and prosecutors had manipulated and misled the grand jury. They maintained that Alicia Christopherson made it clear she wanted to leave her estate to Lowe’s family long before she developed debilitating dementia.
Elizabeth Flynn, Lowe’s attorney, said the prosecution presented “hearsay upon hearsay” concerning Christopherson's mental state and intentions. She termed the prosecution’s case before the grand jury “incomplete, inaccurate, false and misleading.”
However, after listening to arguments from both sides for nearly two hours, Cahill rejected the motions to dismiss the grand jury indictment and ordered all sides to set a date for a trial as soon as possible.
“With regard to any mistakes or misstatements before the grand jury,” said Cahill, “I find they were not material. No clearly exculpatory facts were omitted. No applicable law that should have been presented was excluded. So now we do have to move along.”
The case turns on whether Christopherson was legally capable of changing her estate trust in July of 2003 to make Lowe the sole trustee. She signed the same trust agreement a year later, this time witnessed by a notary and a neighbor. She had set up the trust originally in 1993 with her grandson, Roger Wolfram, as the beneficiary and changed it several times after that — including one version in which she would have left the bulk of the estate to Hospice.
Lowe became her doctor in 2002 and testimony showed that the doctor, his wife and their daughter began visiting Christopherson socially well before she redrafted her trust agreement. Lowe also served as her doctor both before and after she began receiving hospice care.
The hearing on Monday centered on several points revolving around whether Christopherson was either a “vulnerable adult” or so drugged, demented and confused that she could not legally make Lowe her beneficiary.
Dr. Lowe has been charged with manipulating her into retaining him as her beneficiary by taking advantage of her medical and mental condition. Heather Lowe, who has since filed for divorced from her husband, is charged with theft, mostly in connection with the purchase of a $14,000 SUV with money from the trust before Christopherson died.
Her attorney, Michael Bernays, said prosecutors manipulated the grand jury by not presenting better information on when a person loses the legal capacity to do things like change their will. Moreover, prosecutors should have told the grand jury about a portion of the law that says a pattern of gift-giving can be used to demonstrate a person’s intentions, even if they become confused later.
He said Christopherson made Lowe her beneficiary in 2003 and then again in 2004. Moreover, she gave the Lowes’ daughter a $10,000 gift, which the Lowes later returned to her. Therefore, he said, the gift of the SUV was part of a pattern of gift-giving to the Lowe family and the law says such a pattern can be used to determine the person’s intent.
Prosecutor Lacy Cooper said she didn’t tell the grand jury about that statute because the gifts were all so different in size and intent that they didn’t establish a pattern under the terms of the law.
Cahill questioned her closely about that decision, but in the end ruled in favor of the prosecution.
Bernays argued the Lowes committed no crime because Christopherson put them in her will long before she became so vulnerable and confused that she lost the legal right to do so. He noted that both a notary and a neighbor who witnessed the resigning of the document in 2004 considered her competent.
Cooper said Christopherson’s death certificate listed dementia as a contributing cause and indicated the condition had existed for at least two years before her death, which could include both revisions of the trust.
Flynn also argued that Lowe should not have been charged with theft from a vulnerable adult because he did not control her estate until after she died and was therefore no longer a vulnerable adult.
“But didn’t the grand jury conclude that Dr. Lowe, through his wife, got the money and purchased the Land Rover for $14,000, acting in consort with his wife?” asked Cahill.
“Yes. But that’s not theft,” said Flynn.
“Why isn’t that ‘control?’” asked Cahill.
“The check was to the owner of the Land Rover,” said Flynn, and the vehicle was then registered to the trust.
“That’s pretty smart and clever. But who drove it?” asked Cahill.
Flynn said the prosecution had not presented any evidence that anyone drove it, beyond the insurance policy in Heather Lowe-Driscoll’s name. So the presentation of that key issue to the grand jury “was false and misleading.”
Despite the arguments of the defense attorneys, Cahill made his ruling quickly and quietly at the end of the hearing, dismissing the claims of the lawyers in three sentences.