Breakfield v. State, 617, Sept. Term, 2009.
| Decision Date | 04 October 2010 |
| Docket Number | No. 617, Sept. Term, 2009.,617, Sept. Term, 2009. |
| Citation | 6 A.3d 381,195 Md.App. 377 |
| Parties | James Edward BREAKFIELD v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
195 Md.App. 377
James Edward BREAKFIELD
v.
STATE of Maryland.
No. 617, Sept. Term, 2009.
Court of Special Appeals of Maryland.
Oct. 4, 2010.
Mark Colvin (Paul B. DeWolfe, Public Defender, on the brief) Baltimore, MD, for appellant.
Ryan R. Dietrich (Douglas F. Gansler, Atty. Gen., on the brief) Baltimore, MD, for appellee.
Panel: ZARNOCH, MATRICCIANI and RAYMOND G. THIEME, JR. (Retired, Specially Assigned), JJ.
MATRICCIANI, J.
On February 2, 2009, James Edward Breakfield, appellant, was convicted by a jury in the Circuit Court for Baltimore City of misappropriation by a fiduciary and felony theft. On the misappropriation count, the court sentenced appellant to one year of imprisonment. On the felony theft count, the trial judge sentenced appellant to three years, suspended all but one year, to be served concurrently with the sentence imposed for the misappropriation conviction. In addition, the court ordered appellant to serve three years probation, beginning with his release from incarceration, and to pay restitution of $14,000.00 to the Criminal Injuries Compensation Fund. Appellant filed a timely appeal, raising the following questions, which we quote:
1. Did the trial court err in excluding the testimony of three defense witnesses?
2. Is the evidence insufficient to sustain the convictions?
3. Are separate sentences for felony theft and misappropriation by a fiduciary improper?
4. Did the trial court err in ordering Mr. Breakfield to pay restitution of $14,000.00 to the Criminal Injuries Compensation Board (CICB)?
For the reasons set forth below, the judgments shall be affirmed, but we direct the circuit court to merge the prison sentences,
Facts and Proceedings
Appellant was co-owner and manager of C & J Peaceful Assisted Living Home, Inc. ("C & J"), which had two locations in Baltimore City. Nellie Jackson was a 78 year-old resident at the C & J facility located at 1011 Reverdy Road, where she stayed for a total of 15 days in the summer of 2006. Appellant's trial was conducted from January 29 until February 2, 2009, and concerned two counts: first, fraudulent misappropriation of Ms. Jackson's money that he held in a fiduciary capacity, in violation of Md.Code (2002, 2006 Repl.Vol.),
Gina Jennings, the Director of Nursing at Manor Care, testified that Ms. Jackson was an elderly, frail woman who spent most of the time in her room, doing things like crossword puzzles and writing letters. She neither harmed anyone nor was at risk for wandering or leaving the building. Manor Care provided additional one-on-one care only if a resident was a risk to herself or to others and only if such care was ordered by a physician. If a resident desired one-on-one care but it was not medically ordered, Manor Care would provide it through an outside agency, at the resident's expense.
Ms. Jennings testified that the only change in Ms. Jackson's condition between her first and second stay at Manor Care was that "she came back with more cardiac medications" due to a heart attack between the two stays, but there was no change in her psychological profile.
Taressa Crest is a health facility nurse surveyor with the Assisted Living Unit of The Maryland Department of Health and Mental Hygiene. She testified that she inspected both of C & J's locations in 2006. She did not recall the exact dates or whether Ms. Jackson was present at the time of her
Ms. Crest explained that a resident agreement, required by regulation, is a contract between an assisted living facility and its resident that lists the services to be provided and the fees. There are three levels of care in an assisted living facility, with level three being the maximum care. If a resident wants extra services not included in the resident agreement, an addendum to the resident agreement is required. The purpose for requiring this written addendum is "to prevent misuse of resident funds." Additional fees may be charged to the resident as long as they are documented in the addendum. If a resident wants one-on-one care, the facility
Ms. Crest further testified that a resident's funds are handled by either the resident, the resident's agent, or the assisted living facility. If the funds are handled by the facility, written authorization by the resident is required and the facility must keep the funds in an interest-bearing account, separate from the facility's funds, and keep accurate records of how the resident's funds are spent. A "representative payee is someone who is authorized to manage the account of the resident." Ms. Crest was not sure whether appellant was an authorized payee of Ms. Jackson.
The State's final witness was Yvette Finney, from the Attorney General's Office, Medicaid Fraud Control Unit. She had interviewed Ms. Jackson, employees of assisted living facilities in which Ms. Jackson resided, and she had subpoenaed bank and medical records from the facilities in which Ms. Jackson resided in 2006.
Ms. Jackson signed a resident agreement with C & J on June 16, 2006, which provided that she would pay $3,500.00 per month for level three services, plus a $600.00 security deposit. There was no reference to 24-hour one-on-one care
Ms. Finney testified that on a C & J initial nursing assessment, signed by Dionne Hudgins, RN on June 27, 2006, it was stated that Ms. Jackson had no difficulty sleeping but she was incapable of administering medications to herself. The pre-printed portion of the form included the following:
Resident's Medical Status Criteria:
1. The resident's health care needs are Chronic, Stable, Uncomplicated, Routine.
2. The Environment is Conducive to the Delegation of Nursing Tasks.
3. The Resident is Unable to Perform All of His/Her Own Care.
4. The Resident is in Need of 24-hour Supervision And/or Assistance.
Initially, Ms. Jackson remained at C & J for five days, from June 22 until June 27, 2006, and then was admitted into Good Samaritan Hospital for arthritic pain. She remained at Good Samaritan through June 29, and on June 30, Ms. Jackson was transferred to University of Maryland Hospital for inpatient psychiatric services. Ms. Jackson returned to C & J on July 5, 2006, where she remained until July 14, 2006, after which she was returned to the University of Maryland Hospital for respiratory problems. Ms. Jackson was then admitted to Belle Vista, another assisted living facility, on July 31, 2006. The total time Ms. Jackson spent at C & J was fifteen days.
Ms. Finney testified regarding documents produced by appellant pursuant to a grand jury subpoena which was served on April 16, 2007. None of the records mentioned 24 hour one-on-one care being provided for her. State's Exhibit 10 was a check written from C & J Assisted Living Facility, signed by appellant, payable to Belle Vista Assisted Living Facility, LLC, dated July 31, 2006, which, in the memo column, says "file account closed." Ms. Finney testified that the M & T
State's Exhibit 7A was a document dated May 14, 2007, produced by appellant in response to a grand jury subpoena. The document states in relevant part as follows:
Ref: Fees for contract services regarding Nellie Jackson
| 1. | Sitter service/in room 24/7 flat fee | $14,000.00 |
| 2. | Room and Board fee | 3,500.00 |
| 3. | Security Deposit | 600.00 |
| 4. | Miscellaneous items | 400.00 |
| 5. | Total | $18,500.00 |
Note: $10,000.00 Transferred with client to new place of resident. (See in file)
At the conclusion of the State's case, defense counsel moved for judgment of acquittal on the ground that the State had failed to prove that appellant acted with an intent to permanently deprive Ms. Jackson of her money or that he fraudulently and wilfully misappropriated her money. The motion was denied.
The State then moved to exclude the testimony of three defense witnesses based on Maryland Rule 4-263, because the State had just learned their names during voir dire the day before. After a hearing, which lasted more than an hour, the trial judge granted the State's motion.
Appellant testified in his own defense. He first met Ms. Jackson at Manor Care, and described her as "70-ish", frail, and able to carry on a conversation and to discuss her personal business. She signed a C & J resident agreement, which called for her to pay $3,500 per month for a semi-private room. Appellant testified that he gave her a private room for an additional $500 per month, although he normally charged...
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