BREAKFIELD v. STATE

aed document provided by appellant regarding employees or contractors of C J. As to the remaining two character witnesses, appellant argues that they should have been permitted to testify because defense counsel's failure to disclose them prior to trial was not willful, but rather, the result of counsel's mistaken belief that disclosure of non-alibi witnesses was not required. As noted at trial, he raised a different reason for non-disclosure — he thought he had already advised the State.

The trial court was not erroneous in this case by utilizing the powers set forth in Rule 4-263. Simons v. State, 159 Md.App. 562, 576, 860 A.2d 416 (2004) (if there is a violation of discovery rule requiring disclosure of pretrial identifications, remedy is generally within sound discretion of trial court); see also Middleton v. State, 49 Md.App. 286, 431 A.2d 734 (1981) (in prosecution for robbery, no abuse of discretion in refusal to permit alibi witness to testify where notice of alibi given on first day of trial);. Although preventing all witnesses from testifying was a harsh sanction for violation of the discovery rules, Rule 4-263 makes plain that defendants may not wait until trial to disclose their evidence, and if they do, the trial court has authority to exclude such evidence from the case.

2. Sufficiency of the evidence.

In deciding a claim relating to the sufficiency of the evidence, the appropriate inquiry is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); accord, State v. Smith, 374 Md. 527, 533, 823 A.2d 664 (2003). In making this review, " au of the evidence is to be considered in the light most favorable to the prosecution." Jackson, 443 U.S. at 319, 99 S.Ct. 2781 (footnote omitted) (emphasis in original); accord. Bible v. State, 411 Md. 138, 156, 982 A.2d 348 (2009); Moye v. State, 369 Md. 2, 12, 796 A.2d 821 (2002). This rule applies to both direct and circumstantial evidence. State v. Albrecht, 336 Md. 475, 478-79, 649 A.2d 336 (1994).

"We give `due regard to the [fact finder's] findings of fact, its resolution of conflicting evidence, and, significantly, its opportunity to observe and assess the credibility of witnesses.' " Harrison v. State, 382 Md. 477, 487-S, 855 A.2d 1220 (2004) (citations omitted). Moreover, an appellate court does "not measure the weight of the evidence; rather we concern ourselves only with whether the verdict was supported with sufficient evidence, direct or circumstantial, which could fairly convince a trier of fact of the defendant's guilt of the offenses charged beyond a reasonable doubt." McDonald v. State, 347 Md. 452, 474, 701 A.2d 675 (1977); accord Pinkney v. State, 151 Md.App. 311, 329, 827 A.2d 124 (2003).

As the Court of Appeals reiterated in Bible, the appellate court "must give deference to all reasonable inferences [that] the fact-finder draws, regardless of whether [the appellate court] would have chosen a different reasonable inference." 411 Md. at 156, 982 A.2d 348 (quoting State v. Suddith, 379 Md. 425, 430, 842 A.2d 716 (2004)); accord Fraidin v. State, 85 Md.App. 231, 241, 583 A.2d 1065 (1991) (limited question before the reviewing court "is not whether the evidence should have or probably would have persuaded the majority of fact finders but only whether it possibly could have persuaded any rational fact finder.") (Emphasis in original).

Finally, it is well settled that a defendant's intent may be inferred from the circumstances surrounding his acts. Graham v. State, 117 Md.App. 280, 284, 699 A.2d 1204 (1997). As we have stated:

In determining the intent of the defendant, the trier of fact is permitted to infer the requisite intent from the surrounding circumstances. Intent is subjective, such that, without the cooperation of the accused, it cannot be directly and objectively proven. Consequently, without a statement from the accused, its presence must be shown by established facts that permit a proper inference of its existence.

Id.; see also Ashton v. State, 185 Md.App. 607, 615, 971 A.2d 965 (2009) (because intent to steal is subjective, it may be inferred from a totality of the circumstances).

Appellant was convicted of two offenses. The first, CL § 7-104 for felony theft, provides in relevant part that "[a] person may not willfully or knowingly obtain or exert unauthorized control over property, if the person . . . intends to deprive the owner of the property." The second offense, CL § 7-113 for misappropriation by a fiduciary, provides in relevant part that "[a] fiduciary may not . . . fraudulently and willfully appropriate money . . . that the fiduciary holds in a fiduciary capacity contrary to the requirements of the fiduciary's trust responsibility."

Appellant contends that the State failed to show beyond a reasonable doubt that appellant possessed the necessary intent to deprive Ms. Jackson of her money permanently, as is required by § 7-104(a)(1), or that he acted willfully and with the specific intent to commit fraud, as required by § 7-113(a)(1). Rather, appellant posits that the evidence shows, at most, that he failed to comply with COMAR regulations regarding record-keeping. See Schwartz v. State, 103 Md. App. 378, 386, 653 A.2d 958 (1995) (conviction by judge for fiduciary misappropriation and theft reversed where appellee failed to show that the defendant had the requisite intent to support the convictions).

The evidence before the jury was sufficient for the jury to find that appellant acted with the requisite intent to deprive Ms. Jackson of her funds, and thus to convict him of each offense. See, e.g., White v. State, 100 Md.App. 1, 19-20, 639 A.2d 194 (1994) (intent necessary to prove theft and fraudulent misappropriation need not be proven directly but "may be shown by [the] surrounding circumstances").

When Ms. Jackson entered C J, appellant took control of her funds totaling $27,404.36, and, rather than placing the money into a separate account, he deposited them directly into C J's account. In addition, the jury was presented with evidence that, after Ms. Jackson signed a resident agreement which stated that monthly fees would total $3,500.00 for level-three care, and she spent a total of just 15 days at C J, Ms. Jackson was charged $17,404.36 for her time at appellant's facility.

The evidence showed that "level three" care was the highest level of individual care at an assisted living facility, and that there was no indication that Ms. Jackson required anything more; nor were there any doctor's orders for her to receive 24-hour, around-the-clock sitter care. Indeed, such care could only be given if a physician's assessment were issued, and there was none in her record.

However, appellant argued that she was receiving 24-hour around-the-clock sitter care, at $22 per hour. Although Ms. Jackson was documented as a sound sleeper, appellant was being paid $22 per hour for each night that she spent at C J. The jury apparently did not believe that she either required or ordered such care, assuming it had actually been provided.

Appellant testified that Ms. Jackson's monthly rate was not $3,500, but $4,000 per month because she received a private room, although no written addendum to her resident agreement was ever executed. Appellant also charged Ms. Jackson $400 in "miscellaneous fees," which was not disclosed in the resident agreement.

After reviewing all of the circumstantial evidence, the jury found appellant guilty of the two offenses. We affirm their decision because the evidence was sufficient to find appellants' criminal intent beyond a reasonable doubt.

3. Separate sentences for felony theft and misappropriation by a fiduciary.

Appellant claims that his sentence for fraudulent misappropriation by a fiduciary should be merged into his sentence for felony theft, under the rule of lenity. The State concedes that this result is mandated by the relevant case law, such as White, 100 Md.App. at 8-12, 639 A.2d 194, in which we held that although separate sentences for convictions of fraudulent misappropriation by a fiduciary and felony theft do not merge under the required evidence test, the sentences do merge under the rule of lenity. See also State v. Burroughs, 333 Md. 614, 624-7, 636 A.2d 1009 (1994) (sentence for fraudulent misappropriation by a fiduciary should be merged into sentence for theft by deception under rule of lenity).

Accordingly, appellants' sentence for fraudulent misappropriation by a fiduciary will be vacated because that count merges with felony theft, for sentencing purposes.

4. Restitution of $14,000 to Criminal Injuries Compensation Board.

Finally, appellant argues that the trial court erred in ordering him to pay restitution of $14,000.00 to the Criminal Injuries Compensation Board. Authorized recipients of restitution are listed in Md. Code (2001, 2005 RepL.VoL), § 11-606(a) of the Criminal Procedure Article ("CP"), and include, among others, the victim and the Criminal Injuries Compensation Board ("CICB"). Given that Ms. Jackson, the victim, died in 2008, the trial court was unable to order appellant to make restitution directly to her.

The Criminal Procedure Article, § 11-601, provides:

(j) Victim." "Victim" means:

(1) a person who suffers death, personal injury, or property damage or loss as a direct result of a crime or delinquent act; or

(2) if the person is deceased, the personal representative of the estate of the person.

Appellant contends that it was error under Maryland law for the court to order him to pay restitution to the CICB, because Ms. Jackson did not receive any payments from the CICB. The State maintains that appellant failed to raise any objection to the restitution penalty during sentencing, and, in any event, the trial court's order is legally permissible.

We held in Chilcoat v. State, 155 Md.App. 394, 413, n. 4, 843 A.2d 240 (2004) that "[t]he identity of a restitution payee is a substantive matter. If the trial court was not authorized to order restitution to a creditor, then the provision constituted an illegal sentence." A challenge to an illegal sentence may be made at any time. Id. A sentence is "illegal" if it is beyond the statutory power of the court to impose. Id. Thus, we must address whether the statute gives the trial court the power to order that restitution be made to the CICB where it has not paid out on behalf of the victim.

The Criminal Procedure Article, § 11-603, provides:

§ 11-603. Restitution determination

(a) Conditions for judgment of restitution."A court may enter a judgment of restitution that orders a defendant or child respondent to make restitution in addition to any other penalty for the commission of a crime or delinquent act, if:

(1) as a direct result of the crime or delinquent act, property of the victim was stolen, damaged, destroyed, converted, or unlawfully obtained, or its value substantially decreased;

* * *

(5) the Criminal Injuries Compensation Board paid benefits to a victim[.]

A plain reading of this statute shows that two of the circumstances under which a trial court may order a defendant to pay restitution are if property is stolen, converted or unlawfully obtained as a result of the crime, or if the CICB pays benefits to a victim. CP § 11-603(a)(1), (a)(5). In the case before us, restitution is proper because, as a direct result of the actions of appellant, approximately $14,000 of Ms. Jackson's money was stolen, converted or unlawfully obtained by appellant.

The question is whether CICB was a proper recipient of restitution here, when it never made any payments to the victim. Criminal Procedure section 11-606 addresses restitution recipients and states, in pertinent part:

§ 11-606. Payment of restitution

(a) Restitution recipients."The court may order that restitution be paid to:

(1) the victim;

(2) the Department of Health and Mental Hygiene, the Criminal Injuries Compensation Board, or any other governmental unit;

(3) a third-party payor, including:

(i) an insurer; or

(ii) any other person that has, under Part I of this subtitle:

1. compensated the victim for a property or pecuniary loss; or

2. paid an expense on behalf of a victim; (4) any person for whom restitution is authorized by law; or

(5) a person who has provided to or for a victim goods, property, or services for which restitution is authorized under § 11-603 of this subtitle.

(b) Priority of restitution payments."(1) Subject to paragraph (2) of this subsection, payment of restitution to the victim has priority over payment of restitution to any other person or governmental unit.

(2) If the victim has been fully compensated for the victim's loss by a third-party payor, the court may issue a judgment of restitution that directs the restitution obligor to pay restitution to the third-party payor.

When the words of a statute are clear and unambiguous, according to their commonly understood meaning, our inquiry ordinarily ends. Fister v. Allstate Life Ins. Co., 366 Md. 201, 212, 783 A.2d 194 (2001). A statute should be read as a whole to ensure that none of its provisions are rendered meaningless and should not be construed to reach a result that is unreasonable, illogical, or inconsistent with common sense. Briggs v. State, 413 Md. 265, 274-5, 992 A.2d 433 (2010). The language in CP § 11-606(a) is silent as to whether "the Department of Health and Mental Hygiene, the Criminal Injuries Compensation Board, or any other governmental unit" had to have paid the victim before they can be compensated. Thus, we must look beyond the statutory language to the statute's legislative history, prior case law, the statutory purpose, and the statutory structure as aids in ascertaining the Legislature's intent. Id. at 275, 992 A.2d 433.

As indicated, the issue before us is whether the "court may order that restitution be paid to . . . the Criminal Injuries Compensation Board" where the CICB has not paid any benefits to the victim. After considering the purpose and format of the statute, we hold that the court erred by ordering that restitution be paid to the CICB.

In Pete v. State, 384 Md. 47, 55, 862 A.2d 419 (2004), the Court of Appeals explained:

Restitution under Maryland's Criminal Procedure Article is a criminal sanction, not a civil remedy. It serves at least three distinct purposes. First, it is a form of punishment for criminal conduct. Second, it is intended to rehabilitate the defendant. Lastly, it affords the aggrieved victim recompense for monetary loss.

(Internal citations and quotation marks omitted). See also In re Don Mc, 344 Md. 194, 203, 686 A.2d 269 (1996) (fundamental objective of restitution is the rehabilitation of the defendant); Anne Arundel County v. Hartford Accident and Indem. Co., 329 Md. 677, 685, 621 A.2d 427 (1993) ("The fundamental purpose of ordering restitution as a condition of probation is rehabilitating the defendant and affording the aggrieved victim recompense for monetary loss.").

The Court held in Pete that an order of restitution establishes "at most, two things: (1) that the defendant was guilty of a crime; and (2) that, as a direct result of that crime, the persons or entities to whom the restitution is ultimately payable suffered losses (i) of a kind enumerated in the statute and (ii) at least in the amount stated in the restitution order." 384 Md. at 59, 862 A.2d 419.

Here, the order of restitution did not and could not establish that the entity to whom the restitution is ultimately payable, the CICB, suffered losses of a kind enumerated in the statute. That is because the CICB provides compensation only to those persons who "suffer . . . physical injury or death as a result of a crime or delinquent act." CP § 11-808(a)(1). Nor does the record indicate that the CICB paid any benefits to Ms. Jackson.

Although the statute also provides for compensation in some circumstances where the victim has suffered psychological injury, those provisions are clearly not applicable to this case. The victim here was an elderly woman who was taken advantage of by her nursing provider because of mental frailty and suffered economic, rather than physical or psychological, injury.

We have traditionally focused on the General Assembly's inclusion of the words "direct result" when reviewing the legislative history of CP § 11-603(a). Williams v. State, 385 Md. 50, 867 A.2d 305 (2005) (theft victim, who was unable to recover his motorcycles due to a failure to produce proof of ownership, was not entitled to restitution despite the undeniable causal link between the theft and the motorcycles ending up in the city impoundment, because the nexus did not partake of directness required by the statute); see also Pete, 384 Md. at 66, 862 A.2d 419 (holding that restitution to the Local Government Insurance Trust for damages to a patrol car that occurred when defendant fled police was not a proper condition of probation for the second degree assault conviction because the damages to the patrol car did not arise as a direct result of the second degree assault);.

In Chaney v. State, 397 Md. 460, 470, 918 A.2d 506 (2007), the Court of Appeals held:

An order of restitution entered in a criminal case, even when attached as a condition of probation, is a criminal sanction — part of the punishment for the crime. Although it has a therapeutic and rehabilitative function with respect to the defendant, its predominant and traditional purpose is to reimburse the victim for certain kinds of expenses that he or she incurred as a direct result of the defendant's criminal activity. It is not a judicially imposed gift to the victim, but reimbursement that the defendant, personally, must pay.

Because restitution is part of a criminal sentence, as a matter of both constitutional due process and Maryland criminal procedure, such an order may not be entered unless (1) the defendant is given reasonable notice that restitution is being sought and the amount that is being requested, (2) the defendant is given a fair opportunity to defend against the request, and (3) there is sufficient admissible evidence to support the request — evidence of the amount of a loss or expense incurred for which restitution is allowed and evidence that such loss or expense was a direct result of the defendant's criminal behavior.

(Internal citations omitted.)

The Court ultimately vacated the restitution order in Chaney because it had no evidentiary basis and the defendant was never given the opportunity to contest it. Id. at 472-73, 918 A.2d 506.

The question before us is somewhat different than that which we addressed in the above cases, but the "direct result" statutory language is still significant in that it requires a nexus between the crime, the property damage, and the victim. That nexus is nonexistent in this case. As in Chaney, there is no evidence of any expense or out-of-pocket loss incurred by the CICB on Ms. Jackson's behalf. Although evidence of Ms. Jackson's loss was presented to the court, the nexus between the CICB and that loss was not explained. The court explained at sentencing that the award to the CICB was

. . . a result of the fact that obviously Ms. Jackson will no longer be able to benefit from these funds; and to indicate the fact that you fostered and have to incur additional expense paid for by the public because she was deprived of the benefit and use of her money by your actions.

There is no indication from the court as to how the "additional expense paid for by the public" relates to the CICB.

The statutory structure also supports our interpretation of the statute. The Criminal Procedure Article, § 11-603(a)(1)-(6), lists the conditions for a judgment of restitution. Each of the six possible conditions envisions a scenario whereby either the victim (CP § 11-603(1)(2)) or a governmental unit (CP § 11-603(3)(6)) has incurred some loss of money, loss of property, or a loss in property value. Additionally, CP § 11-603(a)(5) states that a court may enter a judgment of restitution if "the Criminal Injuries Compensation Board paid benefits to a victim." This is the only mention of the CICB in CP § 11-603 and indicates that the General Assembly meant to limit the CICB's ability to receive restitution to those circumstances where it has paid the victim. Similarly, CP § 11-603(a) includes the other entities listed in CP § 11-606(a)(2) as possible restitution recipients, namely the Department of Health and Mental Hygiene and "any other governmental unit," but requires them to have paid the victim's expenses as a condition for a restitution judgment.

The State argues, however, that "had the Legislature intended that an order of restitution payable to the CICB would be premised on a prior award from the CICB, it could have easily provided for such a limitation in the plain language of the statute." Indeed, several of the provisions allowing payment of restitution to other recipients under CP § 11-606(a) contain self-executing limitations. Under CP § 11-606(a)(3), payment to a "third-party payor" requires that such an entity or person must have "compensated the victim for a property or pecuniary loss . . . [or] paid an expense on behalf of a victim."

Should we accept the State's argument, however, we would be forced into countenancing the payment of restitution to the CICB, the Department of Health and Mental Hygiene, or any other governmental unit, so long as one of the conditions listed in CP § 11-603(a) has been satisfied, regardless of whether those entities paid, or were even authorized to pay, any benefits to the victim. In the recent case of Addison v. State, 191 Md.App. 159, 180, 990 A.2d 614 (2010), we reiterated that

statutory limitations and due process considerations do not permit an order of restitution for counseling expenses that are not yet certain to occur. We are mindful that the restitution statutes, because they are penal in nature and modify the common law, need to be strictly construed.

(Citation omitted). Thus, we are unwilling to hold that the General Assembly intended for sentencing courts to order restitution to the CICB where it is not a direct reimbursement for payment of a victim's expenses.

The State argues that should we find that the trial court erred in ordering that restitution be paid to the CICB, we should remand the case to the trial court for a new sentencing. We agree. The statutory scheme allows the trial court to order that the appellant pay restitution to the personal representative of Ms. Jackson's estate. See CP § 11" 601(j)(2). We see no reason why, upon re-sentencing, appellant could not be ordered to pay restitution to the personal representative of Ms. Jackson's estate. See, e.g., Chilcoat, 155 Md.App. at 414, 843 A2d 240 (trial court has authority to correct its error regarding restitution payee upon re-sentencing). Thus, we vacate that portion of the sentence that ordered appellant, as a condition of probation, to make full restitution of $14,000.00 to the CICB and remand for a reconsideration of the restitution issue.

In Addison, the trial court had suspended a ten-year prison sentence because it decided that a more appropriate sentence was to order appellant to pay restitution. Id. at 184, 990 A.2d 614. After holding that CP § 11-603 does not authorize a court to order restitution for a victim's pain and suffering, we vacated the entire sentence, which included the ten years' incarceration that had been suspended, 200 hours of community service, completion of an anger management program, and court costs. Id. at 181, 184, 990 A.2d 614.
This case is different than Addison in that the restitution was made a condition of probation rather than essentially replacing incarceration, as was the case in Addison. Thus, we will vacate only that portion of the sentence that is illegal, namely the condition that appellant pay $14,000.00 to the CICB.

SENTENCE FOR FRAUDULENT MISAPPROPRIATION BY A FIDUCIARY VACATED. PROVISION OF RESTITUTION TO CRIMINAL INJURIES COMPENSATION BOARD VACATED. CASE REMANDED TO CIRCUIT COURT FOR BALTIMORE CITY TO RECONSIDER THE RESTITUTION ASPECT OF THE SENTENCE. JUDGMENTS AFFIRMED IN ALL OTHER RESPECTS.

COSTS TO BE PAID 75% BY APPELLANT AND 25% BY MAYOR AND CITY COUNCIL OF BALTIMORE.