State v. ManionState v. Manion
Essentially, this case requires us to consider, as we did in State v. Coleman, 423 Md. 666, 33 A.3d 468 (2011), the circumstances under which the breach of a residential construction or remodeling contract rises to the level of criminal conduct. We must determine whether the evidence adduced at trial concerning Respondent, Christopher David Manion‘s (“Manion“) intent was sufficient to sustain a conviction for theft by deception under
FACTUAL AND PROCEDURAL HISTORY
Following a bench trial in the Circuit Court for Charles County, Manion was convicted of five counts of theft by deception and two counts of conspiracy to commit theft by deception, and sentenced to a term of sixty-five years, thirty years suspended. Manion‘s convictions stem from various construction and remodeling contracts entered into between 2009 and 2011 with several homeowners.
Murphy Contract
According to the testimony and other evidence presented at trial, Manion entered into a contract with Sue and Michael Murphy (the “Murphys“) in August, 2009, to perform siding and window work on their home. Prior to being hired, Manion provided the Murphys with a piece of paper purport
After entering into the contract, the Murphys issued Manion‘s company, Comfort Construction, a check for $5,000 as an initial payment. Manion claimed shortly thereafter that the bank placed a ten-day hold on the check, and requеsted that the Murphys issue a second check for $5,000 in Manion‘s name personally.3 Records produced at trial confirmed that Manion cashed both checks on the same day. Moreover, the Murphys testified that, according to bank records, no such hold existed.
Although work was set to begin in September, 2009, no work was performed and no materials were delivered. Manion offered several excuses, which the trial court discredited as unconvincing, for his failure to perform. Manion contacted the Murphys on the date that the materials were to arrive and claimed that the delivery truck driver was involved in a horrific automobile accident and had been killed. Manion later informed the Murphys that he needed to leave the country to attend a funeral for the delivery driver. Manion was not heard from again until sometime in 2010. After the Murphys’ repeated attempts to contact Manion, he refunded the Murphys $1,300 of the $10,000 owed in late 2010. The Murphys made several attempts to obtain a full refund. Ultimately, communications stopped after Manion‘s phone was disconnected.
Sharon and Kenneth Lake (the “Lakes“) hired Manion in September, 2011, to re-roof their home. The contract entered into between the Lakes and Manion stated that Manion was “licensed, bonded, & insured,” each assertion being false. Despite having paid Manion a total of $3,400, no work was performed and no materials were delivered.
The delivery truck, containing the roofing materials Manion claimed would arrive, never showed. Over the next couple of weeks the Lakes attempted, on several occasions, to contact Manion concerning his failure to perform. Similar to the Murphys, the Lakes were given several excuses as to why Manion was unavailable, including that he was out-of-state or that a family member was sick and needed to be visited. Manion ultimately stopрed returning the Lakes’ calls. The week before trial, a representative of Manion came to the Lakes’ house and offered them a refund of the money, which they accepted only after providing their testimony at trial in this case.
James Contract
Manion contacted Clovia and Walter James (the “Jameses“), having previously performed work on their home, looking for work in February, 2011. When the Jameses informed Manion that they had no need for construction work, but were in need of an electrician, Manion falsely claimed to be a licensed electrician as well. The Jameses ultimately contracted with Manion to replace an electrical box for $710. The following month, the Jameses also hired Manion to perform bathroom renovations. Manion‘s contracts stated that he was “licensed, bonded, & insured,” which he was not. As part of the bathroom renovation project, the Jameses accompanied Manion on a trip to Lowe‘s Home Improvement Store in order to select materials that Manion claimed he would order, and paid Manion $1,094 for the materials in advance. The Jameses also split the cost of a dumpster to be used during the renovation
Despite having paid Manion, no work was started, much less completed, and no materials, or the dumpster, were delivered. The Jameses attempted repeatedly to contact Manion after Manion failed to perform. Manion provided the Jameses with numerous excuses for his failures. Manion, for instance, claimed to have ordered the wrong electrical box and that it needed to be reordered, that the dumpster could not be delivered because the Jameses’ driveway was blocked, that he was unavailable because he needed to pick up his daughter from school, and that his father passed away and he needed to attend the funeral. Manion sporadically contacted the Jameses about a refund and ultimately offered the Jameses a refund the weekend before his trial was to start.
Harsha Contract
Geraldine Harsha (“Harsha“) hired Manion in March, 2011, to perform siding and roofing work on her house for $6,071.92. In addition to Manion‘s oral representation that he was a licensed contractor, the contract with Harsha stated falsely that Manion was “licensed, bonded, & insured.” Once again, Manion performed no work and failed to deliver any materials. When the work did not begin, Manion resorted to his usual excuses, including that a family member died and he needed to attend a funeral, or that he was unable to deliver materials because Harsha‘s driveway was blocked, despite being told that the cars could be moved. The week prior to trial, Harsha was offered a refund of her money for the first time.
Russell Contract
Between September, 2009, and December, 2011, Pat and Frank Russell (the “Russells“) hired Manion, along with Manion‘s partner Albert Styles (“Styles“), to perform an extensive list of renovations throughout their home. Indeed, the projects included, among other things: renovating the master
Manion and Styles claimed to have a business, “D & M Construction,” (“D & M“) in whose name the contracts were made. The vast majority of the contracts stated that the business was “licensed, bonded, & insured.” Despite representing themselves as owning D & M, the address listed for the business does not exist and there is no record that D & M has еver registered with the State Department of Assessments and Taxation (“SDAT“). Manion and Styles later contracted under the name “Built-Tight Construction,” which was also unregistered and unlicensed. When the Russells asked Manion about his license status, he referred them to the contracts which stated “licensed, bonded, & insured.”
At trial, Styles testified that he and Manion would request and cash the Russells’ checks to buy materials immediately, even if the materials did not require payment at that time. Styles also testified that certain materials were never ordered, and that some checks were used to pay Styles‘s personal bills.
Although Manion was responsible for obtaining building permits necessary for construction, he failed to do so. Indeed, permits were not obtained until the Russells themselves acquired the permits roughly one year after certain projects had met their target completion deadline.
Towards the end of 2011, the Russells requested that Manion begin storing materials in their shed, to which only the Russells and Manion had a key. Manion informed the Russells that he placed tiles in the outbuilding for the bathroom renovations. When the Russells attempted to gain access to their outbuilding, their key did not work and they were forced
With respect to the driveway repaving work, Manion informed the Russells, having been unable to perform, that he would place all money relating to the project in escrow. Of the $9,600 he claimed to put in escrow, the State produced accounting records showing that Manion only deposited $1,800. Of the $1,800, Manion used $1,000 personally to obtain a lawyer in a matter unrelated to the Russells. Moreover, according to the testimony of several subcontractors, Manion failed to pay them for work performed. In addition, on several occasions, Manion failed to hire the necessary subcontractors.
The Russells testified that they felt trapped in their situation with Manion and Styles, but made the decision to terminate Manion and Styles in late 2011. The Russells were given an extensive set of excuses for Manion‘s lack of performance throughout the two year period. Among the excuses, Manion‘s unfortunate predicament included: his grandmother breaking a hip; his father, a former alcoholic, falling off the wagon; his mother, who was bipolar, failing to take medication; that his grandmother in Canada died and he needed to attend the funeral; his mom and dad‘s basement flooding; and taking someone to the hospital for a spider bite. In addition, Manion claimed to have been involved in a car accident, which
Procedural History
Following a bench trial, Manion was convicted of five counts of theft by deception, in violation of
Did the Court of Special Appeals erroneously determine that the evidence adduced at trial concerning defendant‘s intent to deprive homeowners of their property was legally insufficient to sustain a conviction for theft by deception?
For the reasons exрlained below, we shall answer in the affirmative and reverse the judgment of the Court of Special Appeals. In doing so, we take care to distinguish the instant case, in which there is sufficient circumstantial evidence upon which the trier of fact could infer reasonably that Manion intended to deprive each homeowner of their property by deception, from cases in which jurors, through the want of direct or circumstantial evidence, are left to speculate entirely as to the accused‘s criminal intent at the time the criminal defendant obtained control over the homeowners’ money or property.
DISCUSSION
Standard of Review
It is the responsibility of the appellate court, in assessing the sufficiency of the evidence to sustain a criminal conviction, to determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of thе crime beyond a reasonable doubt.” Taylor v. State, 346 Md. 452, 457, 697 A.2d 462, 464 (1997) (emphasis in original) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979)). “[O]ur concern is only whether the verdict was supported by sufficient evidence, direct or circumstantial, which could fairly convince a trier of fact of the defendant‘s guilt of the offenses charged beyond a reasonable doubt.” Taylor, 346 Md. at 457, 697 A.2d at 465. Making this determination “does not require [the appellate] court to ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.‘” Dawson v. State, 329 Md. 275, 281, 619 A.2d 111, 114 (1993) (citation omitted).
Indeed, “we are mindful of the respective roles of the [appellate] court and the [trier of fact]; it is the [trier of fact‘s] task, not the court‘s, to measure the weight of the evidence and to judge the credibility of witnesses.” Id. The appellate court gives deference to “a trial judge‘s or a jury‘s ability to choose among differing inferences that might possibly be made from a factual situation[.]” State v. Smith, 374 Md. 527, 534, 823 A.2d 664, 668 (2003). “We do not second-guess the [trier of fact‘s] determination where there are сompeting rational inferences available.” Smith v. State, 415 Md. 174, 183, 999 A.2d 986, 991 (2010). It is simply not the province of the appellate court to determine “whether the [trier of fact] could have drawn other inferences from the evidence, refused to draw inferences, or whether we would have drawn different inferences from the evidence.” Smith, 415 Md. at 184, 999 A.2d at 991. Such deference is accorded, in part, because it is the trier of fact, and not the appellate court, that possesses a better opportunity to view the evidence presented first-hand, including the demeanor-based evidence of the witnesses, which weighs on their credibility. Walker v. State, 432 Md. 587, 614, 69 A.3d 1066, 1082 (2013).
In other words, “when evaluating the sufficiency of the evidence in a non-jury trial, the judgment of the trial court will not be set aside on the evidence unless clearly erroneous[.]” State v. Raines, 326 Md. 582, 589, 606 A.2d 265, 268 (1992). We apply this standard “to all criminal cases, including those resting upon circumstantial evidence, since, general
Theft by Deception
In the present case, this Court must determine whether the State produced sufficient evidence to support Manion‘s conviction for theft by deception under
Under
A person may not obtain8 control over property by willfully or knowingly using deception9, if the person:
(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 abandоnment probably will deprive the owner of the property.
The offender deprives another of their property, under the statute, where the property is withheld:
(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.
As explained previously by this Court in State v. Coleman, 423 Md. 666, 33 A.3d 468 (2011), theft by deception
The defendant‘s intent to deprive, “may be inferred from acts occurring subsequent to the commission of the alleged crime.” Coleman, 423 Md. at 674, 33 A.3d at 472. 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 when ‘they are fairly recent and in some significant way connected with prior material events[.]’ “) (citation оmitted). Where the defendant is charged with theft by deception, the statute makes clear, however, that “an offender‘s intention or knowledge that a promise would not be performed may not be established by or inferred solely from the fact that the promise was not performed.”
An intent to deprive does not lie where the defendant has a right to the property.
The claim of right defense springs from the notion that in cases of common law larceny the defendant must have had an intent to permanently deprive the owner of the property. If the defendant acted under a mistake as to his right to deal with the property, he could not be guilty of larceny. Similarly, if the defendant can produce evidence that he was acting under an honest belief he had a “claim of right[,]” this will be weighed by the trier of the facts in resolving the issue of whether the defendant possessed the requisite mens rea to commit the offense of theft.
423 Md. at 676, 33 A.3d at 473 (emphasis in original) (quoting Sibert v. State, 301 Md. 141, 147, 482 A.2d 483, 486 (1984)).
The State requests that this Court reverse the judgment of the intermediate appellate court and conclude that the evidence adduced at trial concerning Manion‘s intent was sufficient to sustain his conviction for theft by deception. Apart from Manion‘s failure to perform, or complete, the various construction projects, the State notes:
[Manion] lied about his licensurе with the State of Maryland; he gave various false excuses10 as to why he could
not perform; he contracted using companies not registered with the SDAT; and he insisted on being paid either in cash or checks written to him personally which, in the case of the Murphys he cashed immediately; and he refunded the Lakes, Jameses, and Geraldine Harsha, only on the eve of his trial at which he expected each to testify against him.
The State avers that, when taken together, the evidence was sufficient to establish, beyond a reasonable doubt, that Manion was guilty of theft by deception. This evidence, the State asserts, goes beyond mere non-performance, and instead exhibits an intent to deprive. Accordingly, the State contends that the determination of the trial court was not “clearly erroneous” and that the Court of Special Appeals therefore erred by “improperly stepp[ing] into the role of a fact finder” and reversing the conviction.
Manion urges this Court to uphold the decision of the Court of Special Appeals, and argues that the evidence was insufficient to establish that he intended to deprive each homeowner of their money. Manion notes that the State continues to focus solely on his intent to deceive, but has not produced sufficient evidence establishing that he “intentionally deprived” each homeowner of their money. While Manion does not seriously dispute that he “may have lied to a homeowner about his licensing status to obtain a contract[,] ... [he maintains that this] does not bear on whether he possessed a criminal intent to permanently deprive the homeowner of property by never intending to perform on the contract.” (Emphasis in original). Manion further contends that his nonperformance is insufficient to establish an intent to deprive. Moreover, Manion asserts that the “excuses” are “plainly insufficient” to establish that he intended to deprive the
In our view, the State presented sufficient evidence upon which a reasonable trier of fact could conclude that Manion intended to deceive each homeowner when he falsely represented his status as a licensed contractor. Indeed, Manion does not contest that he misrepresented his licensure status to each homeowner. As explained above, Manion (1) provided the Murphys with a sheet of paper purporting to contain a license number, (2) stated that he was “licensed, bonded, & insured” on contracts with the Lakes, the Jameses, Harsha, and the Russells, and (3) in addition to representing himself as a licensed contractor, informed the Jameses he was a licensed electrician. These representations were plainly false. Moreover, Manion made no effort to correct the false impressions he created.
From the circumstantial evidence presented regarding Manion‘s intent, a rational trier of fact could conclude, beyond a reasonable doubt, that Manion intended to deprive each homeowner of their money. This conclusion could be drawn without the need to resort to conjecture or speculation. With respect to the contracts Manion entered into with the Murphys, the Lаkes, the Jameses, and Harsha, the State presented evidence that Manion failed to begin, much less complete, the projects he contracted to perform or deliver construction materials, despite having been paid. Indeed, the Murphys issued Manion a check for $5,000 in the name of Manion‘s reputed
As for the contracts between Manion and the Russells, the еvidence adduced at trial included that nearly $150,000 was paid for services and materials not performed or received. According to Styles‘s own testimony, he used money from the Russells to pay personal bills rather than order construction materials. During the two-year relationship, Manion failed to obtain permits, pay or obtain certain subcontractors, and offered numerous excuses for his failures to perform, including the fact that he needed to take someone to the hospital for a spider bite or that he caught measles during an outbreak in Southern Maryland. We also note that Manion informed the Russells he would deposit $9,600 paid in relation to the driveway work Manion was to perform into an escrow account
We had occasion to confront this issue in State v. Coleman, 423 Md. 666, 33 A.3d 468 (2011). In Coleman, this Court considered whether the evidence adduced at trial was sufficient to sustain a conviction for theft by deception where the defendant-contractor failed to perform several construction contracts. Beginning in February, 2004, Coleman entered into several contracts to purchase and convey eight lots of a subdivision, and ultimately construct new homes for each buyer. 423 Md. at 670, 33 A.3d at 470. The buyers agreed to purchase the unimproved lots by obtaining loans with an initial advance. 423 Md. at 671, 33 A.3d at 470. Coleman purchased the lots using the advances and conveyed title to each buyer by deed at closing. Id. The remaining balance of each buyer‘s loan was held in escrow by the lenders and was to be drawn by Coleman during construction to cover his costs. 423 Md. at 671, 33 A.3d at 471. Coleman withdrew no money from the еscrow accounts as construction was never started, much less
Coleman, similar to Manion in the instant case, was arrested and convicted of theft by deception under
Manion contends that the State‘s position in the present case is inconsistent with our decision in Coleman. We disagree that the instant case contradicts the result reached in Coleman and note that the evidence adduced at trial regard
[W]ork[ing] with several companies to draft architectural drawings and floor plans; retain[ing] MDB to obtain permits and perform architectural and engineering services; hir[ing] two individuals to process permits; consult[ing] a builder about the project; consult[ing] with the CEO of Civtech about replacing MDB; and eventually replac[ing] MDB with Civtech after MDB missed its self-imposed deadlines.
Coleman, 423 Md. at 677-78, 33 A.3d at 474. With respect to the projects Manion failed to perform, however, there was no evidence of any similar efforts.
To the contrary, the State presented evidence that Manion offered a plethora of either incredulous or outright false excuses after failing to perform. For instance, Manion informed the Russells that he needed to visit the hospital following a car accident which required his car to be towed. The Russells testified, however, that the towing company Manion claimed to have used had no records or knowledge of the accident. Moreover, Manion provided the same excuses to several homеowners which casts into doubt their viability, including the fact that materials were undeliverable because driveways were blocked in the case of Harsha—even though Harsha‘s son informed Manion that the cars could be moved—and the Jameses. Similarly, Manion claimed that a delivery truck carrying structural steel beams to the Russells, for which they had paid Manion directly, could not traverse the Russells’ driveway. The company Manion allegedly used had
In addition to the excuses upon which the State cast doubt through the presentation of testimony, Manion made outright lies to the homeowners, in addition to falsely claiming to be a licensed contractor. For instance, Manion informed the Russells he would deposit $9,600 of the money paid into escrow, when bank records show he deposited only $1,800 and used $1,000 of this money personally to fund his legal defense in a separate matter. Moreover, Styles, Manion‘s business partner, testified that money was used to pay personal bills instead of bеing spent on materials Manion claimed to have ordered. We hardly consider Manion‘s efforts to complete projects for the Russells to parallel the efforts of the defendant in Coleman. In Coleman there was simply no evidence bearing on the defendant‘s intent apart from the fact that he failed to perform and that he received more money for the unimproved lots than he actually paid. Coleman, 423 Md. at 676-77, 33 A.3d at 474. This is not the case here; as discussed supra, the State produced sufficient evidence to allow the trier of fact to conclude, beyond a reasonable doubt, that Manion possessed the requisite intent to deprive the homeowners of their property.
Apart from Manion‘s misguided reliance on Coleman, Manion offers several other arguments in support of his position,
Manion, for instance, cites to our opinion in Bible v. State, 411 Md. 138, 982 A.2d 348 (2009), for the proposition that lies—or in Manion‘s case, excuses, which the trial court discounted as suspicious or fallacious—told subsequent to the alleged wrongful act are insufficient to establish intent. In Bible, this Court addressed whether the evidence adduced at trial was sufficient to establish that the defendant intentionally touched the intimate area of the victim “for the purpose of sexual gratification.” 411 Md. at 158, 982 A.2d at 359. To be sure, we explained that the fact that Bible initially lied to police officers about being at the location of the alleged touching did not establish his mental state.11 We explained, with respect to Bible‘s statements to police, that “there are many [ ] reasons Bible could have lied to the police about his actions, including a fear that he would be charged with shoplifting or some other crime. Many people fear involvement with the police.” Bible, 411 Md. at 160, 982 A.2d at 361. Our conclusion, however, was based upon the fact that the only evidence presented to support an inference concerning
With regard to the contracts with the Russells, Manion points out that (1) a substantial amount of work was performed on their home and that (2) Styles testified that neither he nor Manion intended to steal from the Russells. The fact that Manion performed some of the many projects he contracted with the Russells to complete or that Styles, Manion‘s partner who, we note, also testified to using money to pay personal debts rather than order materials, testified that he
JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE REMANDED TO THAT COURT FOR CONSIDERATION OF RESPONDENT‘S ARGUMENTS THAT WERE NOT ADDRESSED PREVIOUSLY BY THE COURT OF SPECIAL APPEALS. COSTS IN THIS COURT TO BE PAID BY RESPONDENT. COSTS IN THE COURT OF SPECIAL APPEALS TO ABIDE THE RESULT ON REMAND.