Wagner v. State

• Decision Date: 30 October 2014
• Docket Number: No. 2299, Sept. Term, 2013.,2299, Sept. Term, 2013.
• Citation: 102 A.3d 900,220 Md.App. 174
• Parties: Jacqueline WAGNER, v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

220 Md.App. 174

102 A.3d 900

Jacqueline WAGNER

v.STATE of Maryland.

No. 2299, Sept. Term, 2013.

Court of Special Appeals of Maryland.

Oct. 30, 2014.

David P. Kennedy (Paul B. DeWolfe, Public Defender, on brief), Baltimore, MD, for Appellant.

Ryan R. Dietrich (Douglas F. Gansler, Atty. Gen., on brief), Baltimore, MD, for Appellee.

WOODWARD, WRIGHT, BERGER, JJ.

Opinion

WRIGHT, J.

Appellant, Jacqueline Wagner (“Wagner”), appeals her conviction in the Circuit Court for Baltimore County for theft and embezzlement for taking money from a joint bank account on which she was named a joint owner with her father. On February 14, 2013, Wagner was charged by information with theft of more than $500.00 and fraudulent misappropriation by a fiduciary. After a two-day bench trial on October 17 and 18, 2013, the trial court found Wagner guilty of both counts. At sentencing on October 21, 2013, the trial court sentenced Wagner to eight years with all but 18 months suspended for theft (with the misappropriation conviction merging into the theft count) and five years' unsupervised probation. After her motion for a new trial was denied on November 21, 2013, Wagner filed this appeal on December 11, 2013.

On appeal, Wagner asks: if a person is added to a bank account as a joint owner, without the intent that the person have an ownership interest, can that person be guilty of theft from that joint bank account?¹

Facts

Marion Wagner (the “victim”) was 84 years old at the time of trial. He had three daughters, Karen, Jacqueline, and Kathleen. The victim worked for Colonial Pipeline for 33 years until his retirement in 1994. For most of his life, he lived in a row house on South Curley Street with his wife, Jean, who died in 2005. While Jean was alive, she handled the family finances. After Jean passed away, the victim attempted to handle his finances himself. Eventually, he asked one of his three daughters, Jacqueline Wagner, to assist him. At the time, the victim's assets included $200,000.00 in an IRA account with American Century (the “IRA”) and a checking and savings account with Provident Bank² (the “Account”). The victim received a monthly pension check of $88.00, and he also received Social Security.

On July 29, 2005, the victim added Wagner as a joint owner to the Account.³ The victim testified that he did so in case he was unable to get the money himself:

STATE: Okay. Now in 2005, you indicated that you put [Wagner] on your account. Why did that happen?

[VICTIM]: That happened because I had my bank account with my wife's name on it, but since she passed away, I wanted somebody else to be able to get the money if I couldn't get it myself. So I asked my daughter if I could put her name on the account and this is my money in there, but not hers, and she agreed to do that.

STATE: What specific instructions did you give her about putting your, her name on your account?

[VICTIM]: The only reason I did that was in order for me to get my money out if I couldn't get it, would she be able to get it for me.

STATE: Okay.

[VICTIM]: That was my money.

Wagner agreed and testified that “I was put on his account in case anything happened to him[.]” The victim retained the checkbook for the Account, but Wagner had an ATM card to access the funds.⁴

In 2006, the victim mortgaged his home for $87,000.00 to help Wagner's business of transporting people to and from Bingo parlors and Delaware Park casino.⁵ The victim testified that the mortgage proceeds were a loan to Wagner, and he believed that Wagner would make the mortgage payments to repay the loan.

In January 2007, the victim moved from his home on Curley Street in Baltimore City to Wagner's home in Baltimore County after his home was damaged by fire.⁶ The victim's house was in Canton, where houses were selling for up to $400,000.00. The plan was to repair the house and rent it out after the repairs were completed. He lived with Wagner until late 2009 without paying rent or household bills.

Before the victim left Wagner's home, he received a statement from his bank informing him that his mortgage on the Curley Street house had not been paid and threatening foreclosure. The victim called the bank to inquire about the notice and was informed that Wagner had not paid the mortgage and that $60,000.00 was owed to the bank. When he asked about how much money he had in the Account, the victim “was astonished to find out that it was nothing.”

The victim left Wagner's house and went to live with one of his other daughters, Kathy. Over the next several months, he began collecting copies of his bank records to find out what happened to the money in the Account. In 2010, the victim went to the district court commissioner's office and filed a complaint against Wagner.⁷

After he filed his complaint, the victim met with Detective Chenoweth of the Baltimore County Police Department fraud unit. From what we can ascertain from the record, Det. Chenoweth's investigation revealed that between May 8, 2006 and September 30, 2009, the Account contained money from the mortgage, withdrawals from the IRA, Social Security checks, and other sources.⁸ And, during that same time, $181,670.09 was withdrawn from the IRA, and $251,645.83 in total was taken from the Account. The victim testified at trial that taken from the Account, without his permission, was approximately:

1. $12,000.00 in cash withdrawals;

2. $42,000.00 in wire transfers to Wagner's personal account (which she jointly owned with the victim);

3. $99,000.00 in ATM withdrawals;

4. a $12,000.00 wire transfer to KLMJ Inc.;⁹ and

5. a $4,000.00 wire transfer to Smythe Transportation.¹⁰

Wagner testified that she never took money from the IRA without her father's authorization and denied signing his name on the requests for withdrawals from his IRA. Wagner denied taking anything from the Account for her own benefit—she stated the withdrawals were at her father's direction when he needed money to go gambling. Wagner testified that the $87,000.00 from the mortgage on her father's house was a gift, and that she paid the mortgage when she had the money do so. She acknowledged that the general contractor for the work on her father's house did not get paid.

After a two-day trial, the court found that from May 8, 2006 to September 30, 2009, Wagner took $122,355.00 from the Account.¹¹ The trial judge stated that she had

absolutely no question in [her] mind, none, that [Wagner] took and used the money in [the Account] for her own purposes. I am truly well beyond having a reasonable doubt. I have no doubt. I reject factually as strongly as I can that [Wagner] withdrew funds at [the victim's] request[.]

After reaching its factual findings, the trial court indicated that it believed the case presented a legal issue. As the trial judge noted, “I really think factually there's no question about what happened. I think it's much more of a legal question.... I have, frankly, spent the majority of my time, trying to figure out what is, what are the consequences or ramifications of a joint account.”

In reaching her legal findings, the trial judge noted that she reviewed Milholland v. Whalen, 89 Md. 212, 43 A. 43 (1899) (“Milholland II ”), superseded by statute, Md. Code (1980, 2011 Repl. Vol.), § 1–204 of the Financial Institutions Article (“FI”); Kornmann v. Safe Deposit & Trust Co. of Baltimore, 180 Md. 270, 23 A.2d 692 (1942) ; Haller v. White, 228 Md. 505, 180 A.2d 689 (1962), superseded by statute, FI § 1–204 ; Hamilton v. Caplan, 69 Md.App. 566, 518 A.2d 1087 (1987) ; Stanley v. Stanley, 175 Md.App. 246, 927 A.2d 40 (2007) ; and Perhamsky v. Flinkman, Civil No. WDQ–09–1756, slip op., 2010 WL 2651293 (D.Md. July 1, 2010).¹² According to the trial judge, the review of these cases revealed:

[T]here is, in fact, a rebuttable presumption [of joint ownership]. There's a difference in ownership and ability to withdraw and one starts with the presumption that in a case where there's joint ownership with a right of survivorship, which is created by the titling of the account, that it's joint owners. But it can be rebutted and the burden is on the person who wants to rebut it.... I'm reading from Haller v. White, it says we think the most significant fact is the form of the account, which on its face creates a joint tenancy. It is true that this raises only a rebuttable presumption but the burden is upon the party seeking to rebut it. In the Stanley case, the common law presumption of joint ownership with the right of survivorship created by the titling of the bank account as joint can be overcome by evidence that the owner's intent was not to create such rights in the titleholder. I have really struggled, I make no bones about it, over this issue of can you actually have a situation where there's theft when the titling is joint owners and I come down on the side that you can and that is because I am persuaded that even if one starts with this presumption that it's joint owners, it can be rebutted and I have found in this case, as I said, it's, it's really for me, I have to confess, it's not beyond a reasonable doubt, it is beyond all doubt.

The trial judge reiterated her findings at sentencing.

I understand completely that this is titled a joint account and I understand that, pursuant to the Financial Institutions Article, that means either one may withdraw money. But I have also found that they each put the other on their accounts for the sole purpose of allowing the non-incapacitated person to get the funds in the event someone was incapacitated.... when I read the cases that I cited to you on Friday, including Perhanski [Perhamsky ] v. Flipman [sic] and Stanley v. Stanley and your Korman [Kornmann ] [sic] case, I am understanding from those cases that there is a distinction between ownership and ability to withdraw and the agreement that these people had was an agreement that the money was only to be withdrawn by the other one, in this case, [Wagner] was only to withdraw [the victim's], which she repeatedly said

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