The Supreme Court has confirmed the prison sentence for the caregiver who used two cards from her neighbor in Girona, who had hired her to care for her dependent daughter, for making "numerous" calls to tarot phones between July 2018 and January 2018. 2019.
The Girona Court imposed a sentence of 3 and a half years in prison and a fine of 2,160 euros for a continued crime of fraud aggravated by the abuse of personal relationships. The court concluded that he took advantage of the trust that the victim had in him, with whom he had forged a bond of “familiarity” because he was taking care of her daughter.
The judgment of the fourth section of the Girona Court, now handed down two years ago, concluded that the defendant began working for the victim in 2014 as an intern to take care of domestic chores and, above all, to care for the daughter of the victim.
The court considered it proven that, three years after hiring her, the defendant "took advantage" of the trust that the victim had in her because "due to the time that had elapsed and because they lived together in the house, a strong personal relationship of familiarity had been forged." . In this context, according to the sentence, the defendant decided to use the data of two of the victim's bank cards to make "telephone contracts."
The Court placed the fraud between July 2018 and January 2019 and stated that the defendant used the cards to make numerous tarot calls and to contract two telephone services. In total, the court placed the fraud at 2,522.88 euros, far from the 14,579.31 of those who accused it and which also included purchases over the internet, telephone or gas bills and the withdrawal, in cash, of more than 10,000 euros in ATMs.
The court did not believe the exculpatory version of the caretaker, who claimed that she had done the good fortune consultations following the victim's orders, that she did not want to do them herself "out of shame."
The Supreme follows the same reasoning as the High Court and supports the victim's account: "the victim, almost 90 years old, in the act of the oral trial said that she only paid with cards in certain trusted establishments, such as the usual hairdresser's" .
The resolution also states that the woman "did not know how to use the Internet" and flatly denied "having made purchases over the Internet or by telephone or having given the defendant the PIN for her cards." In the case there were recordings of the calls where the voice of the defendant was heard and, in addition, they were made from her mobile phone.
The caregiver's defense appealed the ruling of the High Court first to the TSJC and now to the Supreme Court, which has rejected the appeal, ratifying the sentence of the Girona court. The defense argued that the courtroom refused to call a witness to testify that it claimed would confirm that the victim had an interest in tarot and that it also questioned whether there was sufficient evidence to support the conviction.
The court argues that the defense proposed it the same day of the trial and without having brought it to the visiting room to testify, which would have forced the hearing to be suspended again and contravenes the criminal procedure law. As regards the lack of evidence, the Supreme Court rejects and maintains that what the defense "intends" to do is a "new assessment 'pro domo sua'" of the evidence and that this "exceeds the margins of the appeal ”.
In this way, the Supreme confirms the sentence of the Audiència de Girona that condemns the defendant to 3 and a half years in prison and a fine of 2,160 euros for aggravated fraud. As regards liability, the court set the compensation at 2,522.88 euros.
The same sentence acquitted the defendant of the crime of usurpation of civil status, of which she was accused by the private prosecution, and also determined that it had been possible to prove that "all the fraudulent operations attributed by the accusations were carried out by the defendant." because there was only evidence to attribute the fraud related to the tarot calls and two telephone contracts.
