Albertson v. State

• Decision Date: 27 June 2013
• Docket Number: No. 2583,Sept. Term, 2011.,2583
• Citation: 69 A.3d 1186,212 Md.App. 531
• Parties: Kirk ALBERTSON v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

212 Md.App. 531

69 A.3d 1186

Kirk ALBERTSON

v.STATE of Maryland.

No. 2583, Sept. Term, 2011.

Court of Special Appeals of Maryland.

June 27, 2013.

Robert A. Thornton, Jr., Denton, MD, for Appellant.

Jessica V. Carter (Douglas F. Gansler, Attorney General, on the brief), Baltimore, MD, for Appellee.

Panel: WRIGHT, BERGER, JAMES R. EYLER, (Retired, Specially Assigned) JJ.

JAMES R. EYLER, J.

Appellant, Kirk Albertson, was charged in the Circuit Court for Talbot County, Maryland, with theft scheme, multiple counts of passing bad checks which were dishonored for insufficient funds and stop payment orders, and multiple counts of theft over $500. After a jury trial, appellant was convicted of four counts of passing bad checks in violation of Section 8–103(a) of the Criminal Law Article, and three counts of passing bad checks in violation of Section 8–103(b). Appellant was sentenced to seven concurrent terms of eighteen months, with twelve months suspended on each count, for an aggregate unsuspended sentence of six months. He was also ordered to pay restitution and was placed on supervised probation for five years. Appellant timely appealed and, rephrased and reordered, presents the following questions for our review:

1. Did the trial court err in declining to give a jury instruction that explained the difference between a civil cause of action and a criminal charge for passing a bad check based on insufficient funds?

2. Was the evidence insufficient to sustain appellant's convictions for violations of Sections 8–103(a) and 8–103(b) of the Criminal Law Article?

For the following reasons, we agree that there was error in instructing the jury as to the four counts under Section 8–103(a). We also agree that the evidence was insufficient to sustain the convictions under those counts. The judgments are otherwise affirmed.

BACKGROUND

State's Case–In–Chief

This case concerns the business dealings between the victim, Ed Scherl, a licensed auto-broker, and Rokabil Motors LLC (“Rokabil”), a retail used car dealership owned by appellant and William Haddaway.¹ Scherl's role was to provide Rokabil with used cars that Rokabil would then place on its lot for sale to the general public, including to persons with poor or no credit. When a car sale was made, Scherl would deliver title to said vehicle to Rokabil, in exchange for a check in the amount of the sale.

Scherl testified that, when he received checks in exchange for title to the cars, he would collect them and deposit them between one and ten days after the transfer. After certain checks started bouncing, Scherl went directly to Rokabil's bank, Talbot Bank, where he learned that the checks were not “any good.” Scherl testified that appellant or Haddaway normally signed the checks, and that Carol Northcut, an employee of Rokabil, would sometimes sign paperwork associated with the transfer of the vehicles.

A bank representative from Talbot Bank, Wanda Hutchinson, testified that appellant and Haddaway had signature authority for the Rokabil bank account. Referring to certificates of dishonor for the pertinent checks, Hutchinson explained that a check is “uttered” on the day it is written, and is “presented” when it comes to the bank for payment. Hutchinson then addressed the first four checks at issue in this appeal, testifying to the check number, the amount, the day the check was uttered (issued), the amount of funds available on that day, the day the check was presented for payment, and the amount of funds available on the date of presentment. According to Scherl, the checks were signed and delivered to him by appellant in appellant's office. ² Looking to both Hutchinson's and Scherl's testimony at trial, the following table details the relevant figures for these four checks, including the vehicles associated with these checks:

IMAGE

Thereafter, all four of the checks were presented on the same day, November 3, 2009, notably more than thirty days after they were uttered. On that day, these four checks were all dishonored for insufficient funds (“ISF”). The Rokabil account was overdrawn by $159.09 at opening, the high balance for the day; at closing, the account was ultimately overdrawn by $579.08. Scherl testified at trial that he received neither the money due for these four vehicles, nor the return of the vehicles themselves.

A representative from Queenstown Bank of Maryland, Heather Jarrell, testified to the remaining three checks at issue. Jarrell testified that a new bank account in the name of William Haddaway doing business as RMC Holdings was opened on October 5, 2009, with a $75.00 deposit. By the end of October, the balance had increased to $1,305.00.

Pertinent to our discussion, Jarrell testified that three checks, all payable to Scherl, were ultimately dishonored and not paid due to the placement of stop payment orders. (“SPO”). Scherl testified at trial that these checks were signed by appellant at Rokabil Motors. Scherl also explained that these checks were purportedly to replace three checks from the Talbot Bank account that were given by Rokabil in exchange for the transfer of title of three vehicles different from those listed above:

IMAGE

A stop payment was ordered on these three Queenstown Bank checks on October 19, 2009. There is no indication in the record who ordered the stop payment. The checks were then dishonored when presented on October 23, 2009. Scherl testified that he did not receive payment or the return of these three vehicles.

Initial Argument on Motion for Judgment of Acquittal

At the end of the State's case-in-chief, defense counsel generally argued that there was insufficient evidence of identification of who was responsible for drafting the bad checks in this case. The court ruled that there was sufficient evidence of appellant's involvement in the business and denied the motion.

The court then went through the charged counts individually, but we address only the counts for which the jury returned convictions. As to Count 10, concerning the Mazda, after the State argued that there was testimony that appellant signed the check, the court denied the motion. On Count 12, the Pontiac, defense counsel conceded that appellant signed the check, and the court denied the motion. Defense counsel made no specific argument on either Count 14, the Saturn, or Count 16, the Nissan, and the court denied the motions.

As for the replacement checks for the three remaining vehicles, on Count 18, the Honda, and on Count 22, the Ford, defense counsel made no additional argument, and the court denied the motions. As for Count 24, the Dodge, defense counsel simply noted that the court had granted the motion for the count charging uttering a bad check initially from the Talbot account, and the court then denied the motion for the count concerning issuance of the replacement check for this vehicle. No further argument was made on the motions at the end of the State's case-in-chief.

Defense Case

Pertinent to our discussion, Carol Northcut was an employee of Rokabil and knew that Scherl was a wholesaler that provided cars for Rokabil to sell. Northcut's understanding of the arrangement between Rokabil and Scherl was that “[Rokabil] Motors would give Ed Scherl a check for whatever car that we had sold and Ed was supposed to hold the check until he was given an okay by either Kirk [Albertson] or Bill [Haddaway].” Sometimes Scherl would call and ask Northcut to ask appellant whether he could cash certain checks. Northcut denied that she ever signed checks to Scherl, and testified that appellant kept the books and the checkbook register.

Northcut further explained that Rokabil used a bank called Credit Acceptance Corporation (“CAC”) to help customers finance the purchase of vehicles provided by Scherl. When a customer obtained a loan for a vehicle, CAC paid Rokabil a certain percentage of the loan amount. Northcut then testified that, after a vehicle was sold, Scherl would sign over the title to an employee of Rokabil.

On cross-examination, Northcut provided further details, testifying that Scherl was the only person providing cars for resale to Rokabil. Scherl would pass title to Rokabil, and then Rokabil would retitle the car to the individual purchaser. With respect to the manner in which Scherl was to be paid, Northcut then testified that she “knew it was fact that Mr. Scherl was supposed to hold the checks.” Northcut confirmed that appellant signed the seven checks at issue in this appeal.

On redirect examination, Northcut maintained that Scherl was supposed to hold the checks, explaining that “on some of the cars it was because we were waiting for funding from the bank.” Northcut testified that when funding came through, she would inform appellant. She also indicated that there was “no set system for when we gave [Scherl] a check,” and that appellant and Haddaway were the only ones who could sign a check to Scherl. Northcut concluded by testifying that Scherl was given a check “about 50 to 60 percent of the time” on the same day he delivered title.

Appellant testified on his own behalf and explained the arrangement between Rokabil and Scherl as follows:

We did discuss a business deal. Ed Scherl was going to provide us with as many cars as we needed, which I believe he said the number would be 40, which would keep our lot full all the time. When we sold a car he would give us a title and we would pay for the car. Bill and I both explained to Ed Scherl that our dealership was not in a position to pay cash, as would be known as cash at the time we sold the car. We would have to wait for a few other actions to transpire before we could pay the car off. Ed Scherl said that that wouldn't be a problem. Just give me a check and I will hold it and when you had enough money to make that check good I would go to the bank and deposit that check. I reiterated with Ed Scherl that I felt a little uncomfortable with writing a check that he would hold. Ed Scherl promis...