Franklin v. State

• Decision Date: 01 September 1984
• Docket Number: No. 43,43
• Citation: 60 Md.App. 277,482 A.2d 168
• Parties: Patrick Henry FRANKLIN v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 277

60 Md.App. 277

482 A.2d 168

Patrick Henry FRANKLIN v. STATE of Maryland.

No. 43, Sept. Term, 1984.

Court of Special Appeals of Maryland.

Oct. 10, 1984.

Sherrie R. Berger, Assigned Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

Richard B. Rosenblatt, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen., Kurt L. Schmoke, State's Atty., for Baltimore City and Gary Honick, Asst. State's Atty., for Baltimore City on the brief, for appellee.

Submitted before WILNER, BISHOP and BLOOM, JJ.

WILNER, Judge.

In May or June of 1981, Earl Black, an investigator for the U.S. Immigration and Naturalization Service (INS), began an undercover investigation into the unlawful issuing of alien work permits. Although the investigation was directed at discovering whether any INS employees were involved in such activities, Black's attention soon began to focus on appellant, who was not an INS employee but the pastor (and senior bishop and chairman of the board of trustees) of St. Martin Spiritual Church of Christ.

Following an initial telephone conversation two days earlier, Black, posing as an illegal alien named Earl Cumberbatch, met with appellant at the church on July 2, 1981. He told appellant that he was an illegal alien and that he desired to purchase alien registration cards and other immigration documents. In particular, he gave appellant an Immigration Form I-94 to be stamped "Employment Authorized" by INS. That stamp on that form authorizes the alien to obtain employment; it serves as a type of work permit, and we shall hereafter refer to it as a work permit. The document given to appellant looked old and dirty. Appellant copied the information on it and returned it, telling Black that he (appellant) would obtain a new form.

Black met with appellant again at the church on July 9. Appellant explained that he had some people to pay in order to get the work permit, and that Black would have the permit seven days after the money was paid. Black thereupon gave appellant $175, for which he got a receipt. The receipt showed the money as a donation to the church, appellant explaining, "I have to say that for my income tax." Appellant reiterated that Black would have the work permit in seven days, stating at one point, "I guarantee my word if I don't get it I don't get your money. But you don't get it for seven days." Black was instructed to call again in seven days.

Black called on July 19; appellant said that "he had good news for me but he was going out of town until the following day." Black called again on July 22 and was told that appellant "had a 2:00 P.M. appointment at the Immigration Office to get my papers." Black went to the church later that day but was told by appellant that "yours had to go through one more thing"; he was instructed to call several days hence.

Black made several attempts thereafter to contact appellant, without success. He finally was able to meet with him on September 24, 1981. Appellant said that the person he was dealing with at INS had gone away, and that he needed another $50. At one point, appellant agreed either to obtain the work permit or refund the $175 already paid. Later, at the end of the conversation, it was left that Black would pay the extra $50 and that appellant would notify him when to bring it. Nothing more occurred until December 21, 1981, when Black called appellant and was told to call back in several days. He made no further effort to contact appellant, and so he received neither the work permit nor the return of his $175.

Pursuant to proper authority, not challenged in this appeal, Black had his conversations with appellant on July 7, July 9, July 22, September 24, and December 21 surreptitiously recorded.

Upon these facts, appellant was charged with, and convicted by a jury in the Circuit Court for Baltimore City of, theft under $300. The conviction was based on Md.Code Ann. art. 27, § 342(b), which provides:

"A person commits the offense of theft when he willfully or knowingly uses deception to obtain and does obtain control over property of the owner, and;

(1) Has the purpose of depriving the owner of the property; or

(2) Willfully or knowingly uses, conceals, or abandons the property in such manner as to deprive the owner of the property; or

(3) Uses, conceals, or abandons the property knowing such use, concealment, or abandonment probably will deprive the owner of the property."

In this appeal, appellant complains, one, that the evidence was insufficient to support his conviction, and, two, that the court erred in admitting into evidence typed transcripts of the several conversations between Black and appellant that were electronically recorded. We find no error, and shall therefore affirm.

(1) Sufficiency Of The Evidence

The Maryland theft law under which appellant was convicted (Md.Code Ann. art. 27, §§ 340-344) consolidated into the single crime of theft a number of separate crimes that formerly existed, one of which was false pretenses. See art. 27, § 341. Conduct formerly amounting to false pretenses was made punishable as theft by deception under § 342(b). The word "deception," as used in § 342(b), supra, is defined in § 340(b) as including, among other things, knowingly to "[p]romise performance which the offender does not intend to perform or knows will not be performed." Section 340(b) goes on to provide that "[t]he defendant's intention or knowledge that a promise would not be performed shall not be established by or inferred from the fact alone that the promise was not performed" and that deception does not include "puffing or false statements of immaterial facts and exaggerated representations unlikely to deceive ordinary persons."

At appellant's request, and without objection from the State, the court, in its instructions to the jury, defined the crime of theft by deception in terms of the elements of the former crime of false pretenses, as though the two offenses were synonymous. Indeed, the court at one point characterized the crime as "theft by false pretense," and defined it as follows:

"Now, this crime is committed when money or some other property is obtained from another by making a false representation of a past or existing fact with the intent to defraud, and with knowledge of such falsity. In order for the defendant to be guilty of this offense the State must prove that the defendant made a false representation of a past or existing fact, the representation was made with the knowledge of its falsity, this representation was made with the intent to defraud, the person to whom these false representations were made relied upon them to his detriment and, as a result of that reliance, the defendant obtained money or other property from that person."

That statement, essentially, is the definition of the former crime of false pretenses, as set forth in repealed § 140 of art. 27 and explicated in Polisher v. State, 11 Md.App. 555, 560, 276 A.2d 102 (1971).

As no one objected to this instruction below and as no one complains of it in this appeal, we have no occasion to consider its propriety. We do note, however, that § 342(b) of art. 27 is not cast in the same language as former § 140 and does not purport merely to codify the concept of "false pretense" set forth in Polisher. Rather, although the crime of theft generally encompasses what formerly was false pretenses, §§ 340(b) and 342(b) seem to have been based on analogous statutes in other States, and not on any preexisting Maryland law. See Revision Of Maryland Theft Laws And Bad Check Laws, Md.Gen. Assembly (1978), pp. 8-10 and 34, and compare State v. Finch, 223 Kan. 398, 573 P.2d 1048 (1978). Section 340(b)(vii), in particular, defining "deception" in terms of promises not intended to be kept, was apparently taken from an Oregon statute. Revision, supra, p. 10. Using the elements of the former crime to define theft by deception may not, therefore, be entirely appropriate, and we caution the trial courts to be wary of uncritically doing so.

Proceeding upon the premise that theft by deception is indeed the same crime as false pretenses, appellant argues that the evidence failed to establish three of the requisite elements--that appellant made a false representation, that he intended to defraud Black, and that Black actually relied on appellant's representations in parting with the $175. We shall assume, for purposes of this case, that those three elements are, in fact, required to prove theft by deception under § 340(b)(vii) and § 342(b)--that making a promise that the promisor does not intend to perform or knows will not be performed in order to obtain money or other property is the equivalent of making a false representation with intent to defraud, and that, at least implicitly, there is no deception unless the victim relies on the empty promise to his detriment. Cf. State v. Jones, 657 P.2d 1263 (Utah 1982).

With that assumption, the evidence nevertheless clearly sufficed to establish all three elements, and with them the requisite elements of theft by deception. Appellant extracted $175 from Black upon the express promise (representation) that he could and would obtain an INS stamp on the I-94 Form within seven days. The seven days dragged out to five months; Black contacted appellant on four separate occasions, was put off each time, and never received either the stamped form or the return of his money. Although one might reasonably infer that appellant initially accepted the money in good faith in the belief that he could in fact obtain the stamped form and that he simply became unable to carry out his end of the bargain, it is equally inferrable that he knew in July, when he extracted the money, that he either could not or would not obtain the promised stamp. The statements made by appellant and the excuses given by him between July and December were inconsistent enough to warrant a finding that...