Shivers v. State

• Decision Date: 03 January 2023
• Docket Number: 879, Sept. Term, 2021
• Parties: Sharon SHIVERS v. STATE of Maryland
• Court: Court of Special Appeals of Maryland

256 Md.App. 639

287 A.3d 1255

Sharon SHIVERS

v.STATE of Maryland

No. 879, Sept. Term, 2021

Appellate Court of Maryland. *

January 3, 2023

Argued by: Marc A. DeSimone, Jr. (Natasha Dartique, Public Defender, on the brief), Baltimore, MD, for Appellant.

Argued by: Carrie J. Williams (Brian E. Frosh, Atty. Gen., on the brief), Baltimore, MD, for Appellee.

Panel: Friedman, Beachley, James P. Salmon (Senior Judge, Specially Assigned), JJ.

Beachley, J.

Following a two-day trial, a jury in the Circuit Court for Prince George's County convicted appellant, Sharon Shivers,¹ of one count of theft of property valued between $25,000 and $100,000. At the restitution and sentencing hearing, the trial court ordered appellant to pay $6,000 in restitution—$5,000 directly to the victim, and $1,000 to the victim's attorney. The court then sentenced appellant to six months’ incarceration. Appellant timely appealed and presents the following three questions for our review:

1. Is the evidence sufficient to support [appellant's] theft conviction?

2. Did the lower court err in excluding relevant, non-hearsay evidence which supported [appellant's] defense that she lacked the necessary mens rea for theft?

3. Did the lower court err in awarding attorney's fees as restitution in a criminal case?

We shall affirm appellant's conviction, but reverse the restitution award.

FACTUAL AND PROCEDURAL BACKGROUND

John Smith, the victim in this case, is appellant's elderly father.² Following the passing of Mr. Smith's wife in 1987, he and appellant developed a somewhat strained relationship, and at one point did not communicate for approximately ten to fifteen years.

The two reconnected, however, when Mr. Smith, who had been residing in Laurel, Maryland, learned that appellant "was living a few miles from [him]," and that appellant had a grandson (Mr. Smith's great grandson) whom Mr. Smith was eager to meet. Mr. Smith then called appellant, ending their estrangement, and appellant brought her grandson to meet Mr. Smith. Mr. Smith and appellant then began seeing each other regularly, with appellant bringing her grandson to Mr. Smith's home approximately twice a month.

Having reconnected with his daughter, in November of 2017, Mr. Smith decided to add appellant's name to his bank account. Mr. Smith did so because he had been experiencing medical issues, and he believed he could trust her to "write checks in case [he] couldn't write checks" to pay his bills and his mortgage in the event his medical issues incapacitated him or required hospitalization. Mr. Smith expressly conveyed to appellant that he was simply adding her name to his bank account to allow her to pay his bills if he was unable to do so.

In early 2019, there was approximately $95,000 in Mr. Smith's account. Mr. Smith intentionally chose not to invest this money, instead preferring to have immediate access to his funds. Mr. Smith reasoned that he needed immediately available funds to pay for several prescription drugs to treat his numerous medical conditions.

Both Mr. Smith and appellant agree that on March 1, 2019, appellant made two separate withdrawals from Mr. Smith's account. The first was a withdrawal of $35,000, which appellant placed into her own bank account. The second was a $50,000 withdrawal which appellant placed into a certificate of deposit in Mr. Smith's name. Appellant's and Mr. Smith's respective narratives for why this occurred, however, differ.

According to Mr. Smith, it was a complete surprise for him to learn that $85,000 was missing from his account. In April 2019, Mr. Smith went to a dental appointment and received bills totaling $11,000. When Mr. Smith went to his bank to withdraw the money in order to pay the dental bills, he learned, for the first time, that appellant had taken his money. Mr. Smith was furious. He confronted appellant and asked for the money back. Appellant replied that she "would think about it." As of the trial—March 9 and 10, 2020—appellant had still not returned Mr. Smith's money.

According to appellant, however, her withdrawals were the result of conversations she had with Mr. Smith about how to use his funds. Appellant was partially motivated to transfer the funds based on her perception that Mr. Smith was exhibiting concerning behaviors. These included him asking appellant to purchase a sledgehammer so that he could destroy his own furniture in order to purchase smaller furniture that would fit in an assisted living facility, and Mr. Smith's diet consisting mostly of "StoveTop dressing and milk." Overall, appellant perceived that Mr. Smith "wasn't grasping what was going on." Based on these observations, appellant decided to withdraw $85,000 from Mr. Smith's account. She refused to return the money upon his request, telling Mr. Smith that she would "think about it." Appellant's rationale for refusing to return the money was that she believed she could better manage the funds than Mr. Smith. When asked at trial if she intended to hide the transaction from Mr. Smith, appellant testified, "No. Basically he knew about it."

As noted above, following a two-day jury trial, the jury convicted appellant of one count of theft of property valued between $25,000 and $100,000, leading to this timely appeal. We shall provide additional facts as necessary.

DISCUSSION

I. THE EVIDENCE WAS SUFFICIENT TO SUPPORT THE THEFT CONVICTION

Appellant first argues that the evidence was insufficient to support her conviction for theft. Specifically, she claims that the State failed to establish that she possessed the requisite intent to deprive Mr. Smith of his money, and that she did not actually deprive him of the money.

It is well-settled that an appellate court will not disturb a jury verdict if "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).

Generally, if there are evidentiary facts sufficiently supporting the inference made by the trial court, the appellate court defers to that fact-finder instead of examining the record for additional facts upon which a conflicting inference could have been made, and then conducting its own weighing of the conflicting inferences to resolve independently any conflicts it perceives to exist.

State v. Smith , 374 Md. 527, 547, 823 A.2d 664 (2003).

In arguing that she lacked the intent to deprive Mr. Smith of his funds, appellant asserts that she possessed a good faith belief that she could withdraw the funds to "safeguard" them for her father due to his allegedly deteriorating mental state. In arguing that she did not actually deprive Mr. Smith of his property, appellant notes that Mr. Smith was able to immediately determine where his money was, and that, because she possessed a good faith belief that she was simply protecting Mr. Smith's assets, there was insufficient evidence to show that Mr. Smith would not be able to eventually recover his funds. Appellant further argues that Mr. Smith never placed explicit restrictions on her access to the money. Appellant's arguments are unpersuasive.

Md. Code (2002, 2021 Repl. Vol.), § 7-104 of the Criminal Law Article ("CR")³ provides, in relevant part, that "(a) A person may not willfully or knowingly obtain or exert unauthorized control over property, if the person: (1) intends to deprive the owner of the property." CR § 7-101(c) defines "deprive" as meaning:

to withhold property of another:

(1) permanently;

(2) for a period that results in the appropriation of a part of the property's value;

(3) with the purpose to restore it only on payment of a reward or other compensation; or (4) to dispose of the property or use or deal with the property in a manner that makes it unlikely that the owner will recover it.

There is ample evidence on this record for the jury to have found the essential elements of theft beyond a reasonable doubt. See Smith , 374 Md. at 533, 823 A.2d 664.

First, appellant clearly exerted unauthorized control over Mr. Smith's property. Mr. Smith testified that he relied on the funds in his account to pay medical expenses, and that he "needed the money where [he] could get in touch with it right away." He further testified that he never gave appellant permission to take any money out of the account, that he never wanted to invest his money, and that the only reason he added appellant's name to his account was so that she could pay his bills in the event his health issues incapacitated or hospitalized him. Viewing this evidence in the light most favorable to the prosecution, a jury could rationally conclude that appellant exerted unauthorized control over Mr. Smith's property. Id.

The evidence was also sufficient to show that appellant intended to deprive Mr. Smith of his property. At trial, Mr. Smith testified that after he learned that appellant had taken $85,000 from his account, he demanded that she return it. Despite requesting that appellant return his money in April 2019, appellant had still not returned Mr. Smith's money as of the March 2020 trial. Appellant conceded this fact at trial, admitting that when Mr. Smith requested his money, she told him she would "think about it." Thus, the uncontradicted evidence showed that appellant withdrew $85,000 from Mr. Smith's account, made the funds inaccessible to Mr. Smith, and refused to return the funds upon request. Again, we conclude that a rational trier of fact could have found that appellant intended to deprive Mr. Smith of his property. Id.

Nor are we persuaded by appellant's claims that she never exerted unauthorized control over the funds because Mr. Smith never placed explicit restrictions on his account, or that appellant lacked the intent to deprive because she possessed a good faith belief that Mr. Smith's mental acuity was deteriorating. As to the explicit restrictions, Mr. Smith testified that he did not believe...