Schwartz v. State
| Decision Date | 01 September 1994 |
| Docket Number | No. 814,814 |
| Citation | 103 Md.App. 378,653 A.2d 958 |
| Parties | Lisa Dorene SCHWARTZ v. STATE of Maryland. , |
| Court | Court of Special Appeals of Maryland |
Laurie S. Haas, Law Student admitted pursuant to Rule 16 (), Baltimore, for appellant.
Rachel Marblestone Kamins, Staff Atty. (J. Joseph Curran, Jr., Atty. Gen., Gwynn X. Kinsey, Jr., Asst. Atty. Gen., Baltimore, and Joseph L. Cassily, State's Atty. for Harford County, Bel Air, on the brief), for appellee.
Argued before BISHOP, ALPERT, CATHELL, JJ.
The State charged appellant, Lisa Doreen Schwartz, with three counts of theft and three counts of misappropriation by a fiduciary. After a bench trial before the Circuit Court for Harford County, appellant was convicted of two counts of theft and two counts of misappropriation by a fiduciary; the court merged count one (Art. 27, § 342) into counts two (Art. 27, § 342) and three (Art. 27, § 342) and count four (Art. 27, § 132) into counts five (Art. 27, § 132) and six (Art. 27, § 132). Appellant received four concurrent five-year sentences, which the court suspended. The court ordered appellant to serve three years supervised probation, pay restitution, pay court costs, and perform 200 hours of community service.
Appellant raises five issues:
I. Was the evidence legally sufficient to sustain the convictions of theft and misappropriation by a fiduciary?
II. Did the trial court err in excluding evidence of appellant's good faith and lack of criminal intent?
III. Did the trial court err in admitting evidence of prior bad acts of which appellant was not charged?
IV. Did appellant voluntarily waive her right to a trial by jury?
V. Are convictions for both theft and misappropriation by a fiduciary inconsistent verdicts, or alternatively, must the sentences for misappropriation be vacated under the doctrine of merger?
On August 12, 1989, Adams Homes, Inc. ("Adams Homes") and Ross and Joyce Blake ("the Blakes") contracted for the construction of a single-family modular home on the Blakes' property in Whiteford, Maryland. The Blakes were required to make a $4,900 deposit, plus four additional draws, for a total payment of $64,056. On August 23, 1989, Adams Homes and David A. and Laura A. Roman ("the Romans") contracted for the construction of a single-family modular home on the Romans' property in Pylesville, Maryland. The Romans' total payment of $87,000 was to be paid in four separate draws. The Romans' contract specified a completion date of October 10, 1989, or seventy-five days from the first draw, whichever occurred later. From August 1989 until March 1990, appellant managed the day-to-day affairs of Adams Homes, deciding which bills to pay and which checks to issue. Appellant also exercised direct authority and control over the construction of the Blakes' and the Romans' modular homes; however, neither Adams Homes, nor appellant, individually, had any working capital, or a line of credit, at the time the Blakes and the Romans contracted with Adams Homes. Because of the business's financial difficulties, appellant attempted to obtain a line of credit from various financial institutions. Her attempts, however, were unsuccessful. Consequently, appellant's personal bank account and Adams Homes' bank account were repeatedly overdrawn.
Appellant signed all contract documents between Adams Homes and the Blakes and between Adams Homes and the Romans, and she controlled the funds the Blakes and the Romans deposited pursuant to their respective contracts. Appellant, however, failed to place the funds paid to Adams Homes by the Blakes and the Romans in escrow accounts, as required by Md.Real Prop.Code Ann., § 10-502 (1988). Additionally, appellant's records did not indicate how the funds paid by the Blakes and the Romans were applied under the respective sales contracts.
Appellant's record-keeping system and her business practices were deplorable. Paula Brown, an Adams Homes employee, testified that appellant often was unaware of the current balance in the checking account of Adams Homes, and that checks were removed from the checkbook without being recorded. Many checks were written out of sequence, deposits and non-check debits were not entered into the checkbook, and no separate records of debits and credits to the business's bank account were maintained. As a result, the Adams Homes checking account frequently had insufficient funds to cover the checks presented for payment.
At trial, appellant attributed Adams Homes' financial difficulties to a $30,000 bookkeeping error that Ms. Brown had made. Appellant also blamed Ms. Brown for the business's inadequate bookkeeping system. The trial court, however, rejected these contentions, stating that
Bank records show that For example, all checks presented on the Adams Homes account between December 1, 1989 and December 11, 1989 were dishonored because of insufficient funds. On December 12, 1989, Adams Homes made a $10,000 checking account deposit, which corresponded to the Romans' "third-draw payment" of $10,000 made the previous day. At the time the $10,000 deposit was made, the account was overdrawn by $483.21. The next deposit made on December 18, 1989, consisted of a $30,000 item and a $2,956.60 item.
Between December 11, 1989, the date that Adams Homes received the Romans' payment, and December 17, 1989, the day before the $32,956.60 deposit, Adams Homes wrote checks in excess of $13,000. Additionally, at least eight checks, written by Adams Homes prior to December 11, 1989, cleared against the Romans' $10,000 deposit. Those checks included a $600 check made payable to Meredith Britton, Adams Homes's sales manager, and a $157.50 check made payable to Lydia Britton for "casual labor." Between December 18, 1989 and December 29, 1989, checks amounting to approximately $35,000 were written against the $32,956.60 deposited in the Adams Homes checking account on December 18, 1989. During the construction of the Romans' and the Blakes' homes, appellant issued checks to herself from the Adams Homes checking account that contained funds deposited by several Adams Homes home buyers, including the Romans and the Blakes. Appellant also wrote checks from this account for payroll expenses, her mother's rent, her daughter's musical instruments, and other personal expenses. Because all funds received by Adams Homes were deposited into one checking account, and because the majority of checks written contained no notation concerning the job to which it applied, there was no way to determine the construction costs of a particular home or the monies owed to subcontractors working on a particular home site.
Regarding the construction of the Romans' home, the Romans wrote three checks, designated as the "first draw," prior to the delivery of their modular home: $1,500 on August 10, 1989, $5,000 on August 28, 1989, and $8,500 on September 8 1989. The Romans paid the second draw on the contract by a bank check made payable to Contempri Homes, the manufacturer of the modular home, in the amount of $49,800. The third draw on the contract was paid on December 11, 1989, by way of a $10,000 check, and on February 8, 1990, by way of a $7,900 check. Because of continued delays in the completion of their home, however, the Romans did not pay the final draw of $4,380, and terminated their contract.
The Romans finished the construction of their home and obtained their use and occupancy permit themselves, expending approximately the amount of the final draw still owing on their contract with Adams Homes. Although they completed the construction of their house, the Romans did not complete the construction of their garage. According to Mr. Roman, the cost of completing the garage would be $10,000. Appellant testified that all materials for the garage had been purchased by Adams Homes and were being stored in the company's warehouse at the time the Romans terminated their contract. The charges of theft and misappropriation by a fiduciary, for which appellant was convicted, arose, in part, out of appellant's failure to complete construction on the Romans' garage.
Regarding the construction of the Blakes' home, the Blakes paid Adams Homes $7,495 prior to February 8, 1990 to begin construction. The Blakes paid the second draw, $41,911 directly to Contempri Homes, and the third draw, due on February 8, 1990, was paid to Adams Homes in two installments; $6,450 on February 13, 1990, and $1,000 on February 23, 1990. The final draw of $2,200 was due on February 23, 1990. Because of numerous delays, however, the Blakes, like the Romans, terminated their contract and completed the construction themselves.
The draw schedule and specifications for the Blakes' home provided that the chimney would be completed as part of the first draw and that the basement windows and exterior door would be completed as part of the third draw. According to the Blakes, these items were never constructed or installed. The State placed the following values on these items:
two basement windows ................................ $ 540.00
basement door ......................................... 850.00
2 standard Anderson windows ........................... 150.00
chimney ............................................... 750.00
Although the parties disputed whether the chimney was constructed and whether the basement windows and door were installed, the court found, as a matter of fact, that Adams Homes failed to build the chimney and install the...
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