Carl Ceder: The man who tried to steal 4949 Swiss Ave. from Mary Ellen Bendtsen loses his appeal

The man who tried to steal 4949 Swiss Ave. from Mary Ellen Bendtsen loses his appeal Robert Wilonsky

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Mark McCay, left, gets a hug from Robin Teague after Judge John Creuzot sentenced McCay to 30 days in jail and four years’ probation as punishment for trying to swindle Mary Ellen Bendtsen’s Swiss Avenue mansion. (David Woo/Staff photographer)

Mark McCay was once looking at years behind bars — 10, possibly as many as 20. His crime: swindling a former model out of her Swiss Avenue home — 4949 Swiss, to be exact. Yes, that house. Mary Ellen Bendtsen’s house. A famous house tied to an infamous case of elder abuse when, a decade ago, McCay and his partner Justin Burgess and their attorney Edwin Carl Olsen IV convinced an incapacitated 88-year-old woman to sign over her house as she lay on her deathbed. A probate court threw out the new will and turned over the decaying manse to Bendtsen’s daughter, but the damage had been done; the crime of attempted theft of property valued at more than $200,000, committed. And in July 2012, McCay received his sentence: four years’ probation, a $1,000 fine and 30 days in the Dallas County jail. It could have been much, much more.

Yet McCay, star of print and screen, has spent the last three years disputing his crime and punishment. In an appeal filed with the Fifth District Court of Appeals in Dallas, McCay contended, among other things, that the indictment “failed to allege an offense” and that “the evidence is legally insufficient to support his conviction.” He also insists that the jury should not have been been allowed to hear about his involvement with another elderly couple whose house he tried to take while letting them live in squalor.

The appeals court disagrees, and yesterday it issued its ruling upholding the trial court’s judgement.

You can read the entirety of Justice Molly Francis’ ruling below. It’s a long one — 20 pages, much of them spent recapping what Lee Hancock wrote in this newspaper years ago. But, first, a couple of highlights. To begin: McCay, writes Francis, “argues that causing a person to execute a will and filing that will for probate are not illegal acts. If that conduct were standing alone, he would be correct.” But that was not the case in this instance, Francis writes.

The indictment charged that appellant acted “with specific intent to commit the offense of theft.” At the hearing on appellant’s motion to quash, the trial court ruled that the State had alleged an offense, stressing that proof of the offense would turn on proof of appellant’s specific criminal intent. We agree. If performed with the requisite criminal intent to deprive whoever would otherwise have taken Bendtsen’s property after her death, the conduct alleged in this indictment — causing Bendtsen to execute a will in his favor and then filing the will for probate — amounts to a criminal offense.

Mark McCay, leftm and partner Justin Burgess watch as Mary Ellen Bendtsen, with the help of attorney Edwin C. Olsen IV, signs a deathbed will leaving her mansion to them. (Taken from video)

McCay also doesn’t like the fact his relationship with another elderly couple, Jack and Irene Farrington, was entered into evidence. He maintains it was tangential, even though it echoed his behavior with Bendtsen, and coincided with his relationship with the woman who served as the model for a Fair Park statue. Francis writes that, sorry, one plus one equals two:

The Farrington evidence, if the jury believed it, showed appellant’s intent to isolate frail individuals from their families and pressure them into legally transferring property, especially the interest in their homes. On the other hand, we do not see that evidence of appellant’s relationship with the Farringtons would tend to cause the jury to decide the Bendtsen case on an improper basis. The evidence tended to show appellant knew he could isolate elderly individuals from their families and obtain legal transfers of those individuals’ power and money to himself. The evidence was necessary to rebut appellant’s arguments that his conduct involving Bendtsen was based solely on affection and a desire for her well-being.

County records show that Justin Burgess, indicted three times in this case, is due in court two weeks from today. He has not yet been tried in connection with the Bendtsen case. Neither has Olsen, who, court records show, is due to appear in court in mid-November.

Read the McCay ruling below: … [visit site to read more]

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Carl Ceder

Thursday, September 10, 2015

The man who tried to steal 4949 Swiss Ave. from Mary Ellen Bendtsen loses his appeal

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