State v. Coleman

• Decision Date: 15 December 2011
• Docket Number: 2011.,No. 14,Sept. Term,14
• Parties: STATE of Maryland v. Leon Thomas COLEMAN, Jr.
• Court: Maryland Court of Appeals

33 A.3d 468

423 Md. 666

STATE of Maryland

v.Leon Thomas COLEMAN, Jr.

No. 14

Sept. Term

2011.

Court of Appeals of Maryland.

Dec. 15, 2011.

Brenda Gruss, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore, MD), on brief, for petitioner.

Elizabeth M. Walsh, Assigned Public Defender (JonesDay, Washington, D.C.; Paul B. DeWolfe, Public Defender, Baltimore, MD), on brief, for respondent.

Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, ADKINS, BARBERA and JOHN C. ELDRIDGE (Retired, Specially Assigned), JJ.

ADKINS, J.

In this case, we consider the State's effort to criminalize the breach of residential construction contracts. We are asked to determine whether the evidence adduced at trial was sufficient to convict the Respondent, Leon Thomas Coleman, Jr., of theft by deception under Md.Code (2009), § 7–104(a) of the Criminal Law Article. We are also asked to determine whether the Deposits on New Homes Subtitle (“Act”), Md.Code (1998, 2010 Repl.Vol.), § 10–301(a) of the Real Property Article, applies to money received in exchange for land without a residential unit on it.

After Coleman failed to perform eight construction contracts for detached homes, he was convicted of eight counts of theft by deception and eight counts of failure to escrow under the Act. The Court of Special Appeals reversed all sixteen convictions, holding that the Act did not apply and that there was insufficient evidence of intent to support the theft convictions. We granted certiorari, State v. Coleman, 419 Md. 646, 20 A.3d 115 (2011), and answer the following questions:

1. Did Respondent's breach of contract give rise to a criminal action for theft?

2. Is a transfer of property from the victim to a party other than the defendant a “transfer of interest or possession” within the meaning of the theft statute?

3. May intent to commit theft by deception be inferred based upon facts occurring after the date the defendant allegedly obtained or exerted control over the property of the victim?

4. Does the Deposits on New Homes Act apply when the land and new residential unit are not conveyed simultaneously? ¹

We shall affirm the Court of Special Appeals. The evidence was insufficient to conclude that Coleman intentionally deprived the buyers of their property, as required under the theft statute.² Thus, like the Court of Special Appeals, we assume, without deciding, that a breach of contract may give rise to a criminal action for theft in some circumstances. We also confirm our precedents establishing that (1) a transfer of property from the victim to a party other than the defendant is a “transfer of interest or possession” within the meaning of the theft statute and (2) intent may be inferred based on acts subsequent to the alleged crime. Finally, we hold that the plain meaning of the Act indicates that it did not apply to Coleman.

Facts and Legal Proceedings

In February and March of 2004, Coleman entered into contracts to convey eight lots in a subdivision and build homes on those lots.³ The subdivision was called Kings Grant Court, a collection of eleven lots in Prince George's County. Earlier that year, Coleman had acquired the right to purchase Kings Grant Court for $550,000.⁴

The contracts provided that the buyers would purchase the unimproved lots before their homes were constructed. Seven of the eight contracts identified the price of the unimproved lots, which ranged from $89,959 to $100,000. For at least seven of the eight lots, this price was at or below the appraised value of the land at the times the contracts were executed. The total price under the contracts ranged from $256,000 to $360,891, inclusive of constructing the homes.

The buyers paid for the unimproved lots by obtaining loans with an initial advance for the purchase of the land. At closing, Coleman used the initial advances to purchase one lot for each buyer and convey title by deeds to them. He received $667,993.19 from the advances and used $500,000 of it to buy the lots.

The remaining balance on the buyers' loans was held in escrow by the lenders pursuant to a draw schedule under which Coleman would make draws to cover his ongoing construction costs. To make draws, Coleman would have needed to certify that materials were received or work was done, that payment was due, and that the Bank had inspected and approved the work or materials. Coleman never applied for any construction draws, however, because construction never went forward. The only payments that Coleman received from the buyers were the initial land advances, used to purchase the lots, and amounts ranging from $900 to $3500 for paper work costs such as blueprints and site plans.

Construction never went forward because Coleman ran out of money before he was able to obtain the required permits. He had hired MDB Design Group LLC on June 30, 2004, to prepare drawings and designs and obtain the permits. His contract with MDB provided that its work would be completed by August 31, 2004. He also consulted a builder about the project and retained two individuals to process permits and provide real estate consulting. When MDB failed to obtain the permits by the deadline, Coleman contacted James Reid, CEO of Civtech Designs, Inc., to discuss replacing MDB.

Coleman extended MDB's deadline to November 10, 2004, but MDB again failed to meet it, so he retained Civtech on November 12, 2004, to do the work that MDB was supposed to have done. He notified the buyers of this change on December 3, 2004, stating that he would still be able to complete the project. By the end of December, however, Coleman's operating account had a negative balance and he began to ignore inquiries from the buyers. Ultimately, the buyers either filed for bankruptcy, had their lots foreclosed, or refinanced or modified their loans.

Sufficiency of the Evidence for Theft by Deception

When reviewing a criminal conviction for sufficiency of the evidence, “[w]e will consider the evidence adduced at trial sufficient 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.’ ” Facon v. State, 375 Md. 435, 454, 825 A.2d 1096, 1107 (2003) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)); see also Winder v. State, 362 Md. 275, 325, 765 A.2d 97, 124 (2001) (holding that a conviction must be upheld when “the record evidence could reasonably support a finding of guilt beyond a reasonable doubt”).

The prosecution needed to prove that Coleman “obtain[ed] control over property by willfully or knowingly using deception” with one of these states of mind:

(1) intends to deprive the owner of the property;

(2) willfully or knowingly uses, conceals, or abandons the property in a manner that deprives the owner of the property; or

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

Md.Code § 7–104(b) of the Criminal Law Article. The statute defines “deprive” as

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.

Md.Code § 7–101(c) of the Criminal Law Article.

Property can be “obtained,” for purposes of theft by deception, even when it is transferred to a third party. Maryland Code § 7–101(g) of the Criminal Law Article (“ ‘Obtain’ means ... in relation to property, to bring about a transfer of interest in or possession of the property[.]”); Cicoria v. State, 332 Md. 21, 32, 629 A.2d 742, 747 (1993) (observing that “obtain,” for purposes of theft, means “to bring about a transfer of interest or possession, whether to the offender or to another”).

The requirement of intentional deprivation makes theft a specific intent crime. Jones v. State, 303 Md. 323, 340, 493 A.2d 1062, 1070 (1985) (“To steal property is to take it with an intent to deprive the owner of the rights and benefits of ownership.”) (citing U.S. v. Turley, 352 U.S. 407, 411, 77 S.Ct. 397, 399, 1 L.Ed.2d 430 (1957)); Murray v. State, 214 Md. 383, 386, 135 A.2d 314, 315 (1957) (“Theft is defined as [a] crime consisting in the intentional taking, without legal warrant, of the personal property of another with the unlawful intention to deprive the owner of such property.” (citation and quotations omitted)); see also Charles E. Moylan Jr., Maryland's Consolidated Theft Law and Unauthorized Use 61 (2002) (Theft requires “a more remote intent to achieve some purpose or bring about some end result above and beyond the mere intentional commission of the actus reus.... It is required that the alleged thief ... has the purpose of depriving the owner of property[.]”).⁵

Intent may be inferred from acts occurring subsequent to the commission of the alleged crime. As we observed in Sorrell v. State,

Flight by itself is not sufficient to establish the guilt of the defendant, but is merely a circumstance to be considered with other factors as tending to show a consciousness of guilt and therefore guilt itself.... The flight doctrine has been applied to a broad spectrum of behavior occurring after the commission of a crime: flight from the scene or from one's usual haunts after the crime, assuming a false name, shaving off a beard, resisting arrest, attempting to bribe arresting officers, forfeiture of bond by failure to appear, escapes or attempted escapes from confinement, and attempts of the accused to take his own life. (Emphasis added and citations omitted.)

315 Md. 224, 228, 554 A.2d 352, 353–54 (1989); see also U.S. v. Latney, 108 F.3d 1446, 1449–50 (D.C.Cir.1997) (“[L]ater acts are most likely to show the accused's intent...