*1 594
duty
protect
students. The court noted that
the due
process
guarantee
clause is not
of certain minimal levels of
safety, and that because schoolchildren were not as
as
helpless
or mental
prisons
hospitals,
those
the school did not have an
duty
protect
affirmative
the children. The court concluded
that because
still retain
“parents
primary responsibility for
child,”
...
for the
school
caring
compulsory
attendance does
had
responsibility
not mean
State
assumed
for the child’s
personal
entire
life.
children and their
re-
parents
“[T]hese
J.O.,
tain substantial
freedom to act.”
Chief state that he in the concurrence and Part I only dissent.
Sept. 2009. 495, (6th 1996); Dist., Dorothy 510 Cir. v. F.3d 729, J. Little Rock Sch. 7 F.3d (8th 1993); 727, Josey, 732 Cir. Maldonado v. 975 F.2d 731-33 Sch., (10th 1992); Cir. D.R. v. Middle Bucks Area Vocational Technical Cir.1992); (3d County 972 1372 F.2d meau Yamhill Sch. Plu Dist., (D.Or.1995); F.Supp. Douglas County 907 1442-43 Doe v. RE-1, (D.Colo.1991). F.Supp. Sch. Dist. *4 Brennan, Amy (Nancy Forster, E. Asst. Public Defender S. Defender, Baltimore), brief, on for appellant. Public Brockmeyer, Cathleen C. Asst. Atty. (Douglas Gen. F. Gansler, Atty. Baltimore), brief, of Maryland, Gen. on appellee. BELL, HARRELL, C.J., BATTAGLIA,
Argued before MURPHY, GREENE, BARBERA, ADKINS and JJ. GREENE, J.
The Adelaida Maria appellant, Tarray (“Tarray”), appeals convictions, from her Court for County, Circuit Charles adult, for the of a offense vulnerable under (1957, § Md.Code 8-801 of Repl.Vol.), the Criminal Law Article,1 conspiracy and to commit that offense. Considering Exploitation 1. prohibited. Section 8-801. of vulnerable adults (a) Definitions.—(1) following In this section the words have the meanings indicated. (2) "Deception” meaning § has the stated 7-101 of this article. (3) "Deprive” meaning § has the stated in 7-101 of this article. (4) meaning § has the stated in "Obtain” 7-101 of this article. (5) meaning "Property” § has the stated in 7-101 this article. (6) meaning § "Value” has the stated in 7-103 of this article. (7)(i) amounting "Undue influence” means domination and influence person to force and coercion exercised another such an extent prevented exercising judgment that a vulnerable adult was free and choice. (ii) influence” "Undue does not include the influence normal family one member of a over family. has another member of the meaning § "Vulnerable adult” has the stated in 3-604 of this article. (b) person may knowingly willfully not Prohibited.—A obtain intimidation, deception, property or undue influence the of an individu- person reasonably al that the knows or should is a know vulnerable deprive intent adult with the vulnerable adult of vulnerable property. adult’s (c) Penalty.—(1) person A convicted of a violation this section and; $500 property guilty felony when the value is or more is of a (i) subject imprisonment exceeding years or a fine not $10,000 both; exceeding or (ii) owner, or, property shall restore the taken or its value to if deceased, the owner is restore the or its value to the owner's estate. *5 of time, must determine the extent for the first we this statute describing in Legislature embraced the the misconduct adult and of a vulnerable what constitutes at trial was sufficient presented the evidence whether we conclude that the convictions. Because Tarray’s sustain convictions, shall we was sufficient to sustain evidence of the Circuit Court. judgment affirm
I. Wright (“Wright”) separated John D. spring late Wright, prior who for the Consequently, from his wife. medical physically debilitating from a years had suffered down, from the waist needed paralyzed him leaving condition Indeed, was neither able to Wright someone to care for him. himself, himself, in out of without get dress clean nor bed result, he into the services of began inquiring assistance. As a professional caregivers. for the first time when she
Wright May met caregiver. Although interviewed for the of live-in position (2) person A convicted of a violation of this section when the value of guilty property $500 than is of a misdemeanor is less and: (i) subject imprisonment exceeding 18 monlhs or a fine not both; exceeding $500 or (ii) owner, or, property or its shall restore the taken value to the if deceased, property the owner is restore the or its value owner's estate. (d) Sentencing.—A imposed may sepa- sentence under this section be with a rate from and consecutive to or concurrent sentence for establishing crime based on the act or acts the violation of this section. (e) Disqualification.—A disqualify this conviction under section shall inheriting, taking, enjoying, receiving, the defendant from or otherwise estate, benelitting proceeds, property or of the from the insurance adult, by operation pursuant legal vulnerable whether of law or to a document or entered into the vulnerable adult before the executed been under this section and shall have defendant shall have convicted of the taken or made full restoration of its value vulnerable adult. (f) may Construction section.—This section not be construed to who, liability impose person request criminal on a at the adult, family, appointed vulnerable the vulnerable adult's or the court adult, guardian good vulnerable has made a faith effort to assist management in the of or transfer of vulnerable adult the vulnerable property. adult's relatively independent, sense that he contractor, time for a
worked full from home defense indicated that he someone help needed around the house to *6 Also, him his perform daily activities. he indicated that he expertise needed someone with medical about knowledge how to care for someone in his physical particu- condition. lar, Wright stated that he needed someone who knew to how and maintain his catheter device. operate Tarray informed Wright practical that she was a licensed nurse.2 then Wright week, Tarray position salary offered at a of per which $350 later accepted. she work,3 weeks after starting Tarray
Within approached Wright pay and demanded a raise from to week. per $350 $500 to the work was According Tarray, simply too difficult to at her current later perform wage. Wright testified that he granted request, her in because he “no part, small drink of water.”
Tarray requests communicated additional to be- Wright First, July requested tween June and of 2005. she to be paid week for per previously the same reason mentioned for $750 i.e., raise, Second, justifying a the work was too difficult. she requested Wright caregiver that fire another working at the time house to make room for another David caregiver, fall, Baker. late By Tarray pay secured third and final raise $1,000 Wright, increasing her At earnings per week. Wright Tarray 2. testified at trial that said that she was a licensed (LPN). practical points Appellee nurse out in its brief filed this Court, jury, Wright at footnote that not disclosed to the as ‘‘[w]hile suspected, Tarray appeal, Tarray is not an LPN.” On moved to strike appellee's footnote 3 from the brief on the basis its content concerning Tarray practical whether was a licensed nurse was jury. Subsequently, appellee response considered filed a Tarray's indicating motion the information is relevant because Wright authenticity Tarray’s professed occupa- had doubts about the evidence, sufficiency tion. Because our review is limited to the Tarray and the fact that was not an LPN was not offered into evidence trial, appeal. we will new at the not consider the evidence on little, transcript any, provides specific 3. The trial if detail in terms of dates of events and occurrences. Tarray’s pay trial, why agreed raising he had when asked said, time, Wright relatively period over a short so much You hard place. ... I was between a rock “Because I had no choice.” know, go[?] else am I going -where Tarray by Wright payment, paid initial Except Bank of his with check with funds from account personal first, how- At he each check. Subsequently, America. wrote ever, him from disability prevented perform- Wright’s physical on than his name any signing activities more arduous ing Thus, more he prepare. signed would checks checks, Tarray. prepared by most of which were than of her six months of employment, the course Over $24,000, withholdings. in excess of without tax earned a business Tarray presented In the fall of with should that she and suggested proposition. *7 never joint Although proposition enter into a venture. discussions, than a series of anything amounted more naming the “Jade.” Wright talking remembers about business Tar- after the business at Shortly discussing proposition, Ridgeline a late model Honda ray’s request, Wright purchased neither disability, truck. Because of his could physical Wright Notwithstanding nor ride as a in truck. passenger drive that, in Tarray it for that she Wright agreed buy hope would continue for him. working
In addition to new means acquiring transportation, a Tarray a Bank of America business account opened however, Wright, D. testi- Wright name John and “Jade.” behalf, to act his let Tarray fied that he never authorized on a Bank of America. Even open alone second account with check dated though Wright acknowledged signing prepared 22, 2005, alerted to the fact Wright December never second being that this check was drawn from the particular account, America of this Bank of nor was aware account. This fact was emphasized during prosecutor’s closing argument:
And, on, on. you going as time went heard more is open You’ve heard about at least three accounts that are that Mr. Wright did not know anything about. ofOne those on a check that he up And, ends off on. signing State’s 35. you can tell by comparing the checks that most of the [sic], checks were bank, different account. Same different account. And Mr. again, Wright says [“]I don’t know Yeah, anything about that account. I did check sign this for thousand, on dollars the 22nd[.] is an account I [T]his don’t know anything about.[”] likewise, Wright, was unaware opened had two other accounts with Maryland Bank National Association (MBNA) Citigroup, in again the name of John D. Furthermore, and “Jade.” account named Tar- Citigroup as an ray cardholder, authorized credit and she used the account to make several cash advances. increased,
As Tarray’s “gifts” wages quality of care provided Indeed, she Wright deteriorated. Tarray had taken a job, home, second outside Wright’s result, and as a she was gone day. most of the Wright testified that often he was alone, left to the extent that he saw only thing first the morning and late at before night going to bed. In addition absences, to her frequent Tarray had repeated difficulty with cleaning Wright’s catheter device properly. Consequently, Wright was hospitalized urinary tract infections on three separate occasions over the six months of Tarray’s employ- ment.
By end of Wright decided to terminate the em- ployment of Baker and Tarray. Accordingly, Wright asked *8 later, the to move out.4 couple days Two he was hospitalized for the third and final time. 3, 2006, January
On Baker and Tarray visited at there, hospital. While they asked him to sign separate two house, relating documents to his truck and In respectively. document, the first Wright agreed to let Baker and Tarray judge objection 4. The trial Wright’s sustained defense counsel’s testimony surrounding about the other circumstances Baker’s and Tarray's termination. as he was in the long home so in his to reside continue document, transfer agreed to other In the hospital. he off the vehicle paid after truck to ownership in his loan. to leave his home already couple asked he had
Although he felt to take them, obliged that Wright explained firing after able to back on get until were they of Baker and care documents, Wright he why signed asked their feet. When me ... working due to them for said, obligated I felt “Because ,.. Similarly, ears.” them out on their I want to throw didn’t is, I care stated, “Well, feeling person. a That very I am he everybody to take care of always try And I everybody. for I that can.” informa- filed criminal State
On December County, for Charles Circuit Court against Tarray, tion theft, forgery, uttering, conspiracy, counts alleging multiple trial, Tarray’s adult.5 At of a vulnerable exploitation charge on the judgment acquittal counsel moved conspiracy to commit of a vulnerable adult that the evidence did based, upon argument solely, offense particular, of undue influence. finding support counsel for stated: ... charge ... element of the the third
Additionally using- of the victim obtained [Tarray] that argue I would intimidation or undue deception, influence[.] exchanged [Wright] ... between money ... that there was However, there [Wright] testify did not that and [Tarray]. these during [exchanges]. or coercions were threats ... money given was because He did testify ... that he Wright] hard. testified very [Also work was a hard I don’t think place. between a rock and caught influence. The definition constitute undue would amounting is domination and influence of due influence [sic] an person exercised another to such to force and coercion brought when the not indicate how and matter was 5. The record does the attention of local law enforcement. *9 extent that a vulnerable adult was prevented from exercis- free ing judgment and choice. case,
In this free [Wright’s] judgment and choice was not over ... he not prevented from this free exercising judgment and choice.... He never mentioned that there any were threats in for ... exchange being fed or a catheter for being changed, example.
There testimony was no whatsoever on behalf of [Wright] to indicate that ... [Tarray’s] behaviors prevented him exercising free or judgment choice. just counts, I all go through
Should Your Honor? motion, denying Tarray’s judge trial concluded that a justified fact finder would be in finding undue influence under Also, totality of the circumstances. noted that judge Tarray charged wages, excessive bank opened accounts authorization, Wright’s name without caused to pur- use, Tarray’s chase truck for personal rights and secured Wright’s house and truck. In the trial judge’s assessment of facts, jury could infer that Wright’s decisions were the result of undue influence. deliberations,
Following the jury returned verdicts of guilty alia, for, against Tarray theft, inter two counts of one count of adult, exploitation of a vulnerable and one conspiracy count of exploit a vulnerable adult.6 The judge trial sentenced incarceration, years a term of five with all but one year and four suspended, years probation. then filed a timely appeal to the Court of Special Appeals. Before matter, the intermediate appellate court could consider the we granted certiorari7 on our own motion to answer the following question: Is the evidence sufficient to sustain the convictions appellant closing 6. The was indicted on a total of 13 counts. Prior to however, arguments, judge granted judgment the trial motions for counts, three, acquittal eight through remaining on counts 13. The five, six, prossed. were nolle decision, prior appellate party appealing 7. Because there is no appellant, decision is referred party to as the whereas the adverse 8-111(a). appellee. referred to as Md. Rule conspiracy exploit adult and of a vulnerable adult? a vulnerable
II.
A. outset, not an present note that does Tarray At the we findings as to challenging the trial court’s argument other than the intent conspiracy charge, element the of Thus, her a adult.8 the of vulnerable accomplish exploitation to sustain legal sufficiency to the evidence challenge that the solely upon conviction whether we conclude depends for exploita was sufficient to the conviction support evidence addition, Tarray, we note that tion of a vulnerable adult.9 There is a vulnerable adult. appeal, on concedes that fore, ultimately in this case turns on whether our decision deception or undue Tarray Wright’s property by obtained influence.10 adult, successfully prove conspiracy exploit vulnerable
8. To
a
a
(1)
agreement entered in between two
State must establish
an unlawful
(2)
deprive
of
persons
or more
a vulnerable adult
the vulnerable
intimidation,
property by deception,
undue influence. See
adult's
or
State,
145,
844,
(2001)
(citing
363 Md.
767 A.2d
852-53
Mitchell v.
State,
(2001)) (describing
362 Md.
As to the undue maintains that she never his free will. prevented exercising Indeed, Tarray asserts that her accumulation of Wright’s of her employment merely over course in repeatedly seeking result of her assertiveness the most *11 possible. regard modality terms In to the of decep- favorable tion, maintains that the Tarray State never raised the issue at only proceeded theory trial. reasons that the State on a She and that the trial the judge only of undue influence sent undue statutory jury. definition of influence to the Further- more, even if the raised the issue of deception, Tarray State Wright’s property by decep- contends that she did not obtain misled in order to Wright tion because she never take of his property. legally
The retorts that the evidence was sufficient to State the conviction as to counts one and two.12 Specifically, sustain the contends that the could have found jury reasonably State prohibits person obtaining The a 11. statute vulnerable adult’s intimidation, property "by deception, or undue Md.Code. influence." (1957, 8-801(b) Repl.Vol.), § Ann. of the Criminal Law Article added). (emphasis provides, part: 12. The criminal information in relevant Count Attorney County, Maryland, State's for Charles on his oath [The] TARRAY, present and information does that ADELAIDAMARIA late County, day May of said between on or about the 15th of and 27th December, five, day land, County, Mary- two thousand and at Charles unlawfully, knowingly willfully by deception, and obtain did undue influ- by either Wright’s obtained regard- Tarray’s argument In deception. response ence or influence, points undue State as to the lack of evidence ing circumstances, including permissible of the totality to the consider- Specifically, from the evidence. deducible inferences wages, opened obtained excessive the evidence ing card without obtained a credit and checking accounts two Wright’s interest in authorization, a present and secured both truck, in State Wright’s a future interest home and have inferred the jury could that a reasonable maintains addition, although In the State of undue influence. presence to sustain modality deception on the brief rely did its maintains, oral that a reason- conviction, argument, it at Wright deceived have found jury able could Moreover, the his State property. him to causing relinquish for theft is sufficient conviction Tarray’s contends that adult. of a vulnerable her conviction for sustain C. legally the evidence is suffi whether determining “any to determine whether
cient, solely the record we examine greater property having value of influence intimidation and undue dollars, knowing Wright, property of John five hundred than John was a reasonably known that said should have deprive said John with intent to vulnerable adult CR, Wright's property, in violation of Article Section 8-801 said John Maryland, against peace, govern- of the Annotated Code Adult, (Exploitation Vulnerable dignity of the State. Article ment and CR, 8-801) Section *12 2 Count aforesaid, Attorney, and information State's on his oath And said TARRAY, presents ADELAIDAMARIA late of further that the said day day May and 27lh County, on or about the 15th of said between aforesaid, five, December, County and at the did of two thousand knowingly willfully unlawfully, and conspire David Baker to with intimidation, property by deception, and undue influence obtain dollars, property of having greater than five hundred a value of reasonably Wright, knowing have that the John should known deprive a vulnerable adult with the intent to said John Wright’s property, in violation of of said John said John government, dignity peace, of the State. Common Law and the Adult, Law) (Conspiracy—Exploitation Common Vulnerable 608
rational trier of fact could have found the essential elements of State, a reasonable doubt.” McKenzie v. beyond the crime 120, 136, 998, (2008) v. 407 Md. (citing Jackson 962 A.2d 1007 307, 315-16, Virginia, 2781, 2786-87, 443 U.S. 99 S.Ct. 61 (1979) 560, L.Ed.2d 571 (requiring legal sufficiency in order to conviction)). record, sustain a In examining the we view the evidence, State’s all including reasonable inferences to be therefrom, drawn most light favorable to the State. Rendelman, v. State 500, 513-14, 546, 404 Md. 947 A.2d 553 State, (2008) (citing Harrison v. 477, 487-88, 382 Md. 855 A.2d Suddith, 1220, (2004)); State 425, 429-31, 379 Md. Smith, 716, State v. A.2d (citing 718-19 374 Md. 533-34, (2003)). Moreover, 823 A.2d we will ordinari ly fact, defer to the factual findings the trier of who able is to observe the demeanor of the witnesses and their weigh credibility. Wiggins v. 551, 567, 324 Md. 597 A.2d (1991). 1366-67 Conviction
Theft begin analysis We our by addressing whether Tar- theft ray’s conviction is sufficient to her support conviction for exploitation of a vulnerable adult. provides, Section 8-801 that “a part, person may knowingly and willfully obtain intimidation, deception, or undue influence the of an individual that the knows or person reasonably should know is a vulnerable adult with deprive intent to the vulnerable adult 8-801(b) § of the vulnerable property.” adult’s of the Criminal statute, Law Article. construing language of we are guided by the principles statutory construction. As stated recently:
In statutory our interpretation, primary goal always is “to discern the legislative purpose, the ends to be accomplished, or the evils to be remedied it particular provision, be constitutional, statutory, part or of the Rules.” begin We analysis by normal, our first looking plain meaning statute, language reading the statute as a whole “ word, clause, to ensure that ‘no sentence or phrase rendered surplusage, superfluous, meaningless or nugato-
609 ” unambigu- clear the of the is and ry.’ language If statute and ous, beyond provisions need look the statute’s we If, to however, subject is analysis language ends. the our endeavor to resolve interpretation more than one ... we history, legislative to ambiguity by looking that the statute’s law, the of the well as structure statutory purpose, case as statute. 277, State, 231, 236-37, 408 A.2d & v. Md. Jackson 969
Glascoe Cumberland, 1, Firefighters v. 407 Md. (quoting 280-81 Elections, 8-9, 374, (2008); v. Board 962 A.2d 378-79 Doe 342, (2008); Supervisor 406 Md. 962 A.2d 350-51 GT, 658, 669-70, A.2d 1125-26 Md. Stellar (2008)). case, present legislature
In the the State maintains the an theft § to treat 8-801 as offense of aggravated intended “were of non-fiduciaries who providing prosecution to take” of a adult. In other able vulnerable words, against a commits a theft a vulnerable person who intimidation, adult, is no or undue even where there deception, influence, § response, Tarray is in violation of also 8-801. merit, contends that contention is without because the State’s interpretation unpersuasive its is both unreasonable. highly unlikely legislature asserts that it is intimidation, and phrase “by deception, intended to treat the meaningless devoting undue influence” as after its time statutory to it by providing effort illustrate what meant a if definition for two of the three terms. Even statute were susceptible interpretations, Tarray to both further contends § that the 8-801 is on the legislative history underlying silent offense against issue whether a theft vulnerable adult of a vulnera- sufficient establish offense of Additionally, Tarray though ble adult.13 contends even jurisdic- there are similar at-risk adult other abuse statutes histoiy Although legislative underlying § 8-801 devoles consider- 13. not, persons subject punishment, able attention to which are it does contrary expressly the statute view of address whether applies persons no who steal from adult when there is vulnerable intimidation, deception, or undue influence. tions, the wording Maryland statute at issue implicitly refutes the State’s aggravated offense theory.14
Because the State’s interpretation would unreasonably con strain the plain meaning of the statute by reading out the intimidation, phrase “by deception, influence,” or undue we agree with Tarray’s construction of the statute. See Depart 399, 420, ment Health v. 397 Kelly, 470, Md. 918 A.2d 482 (2007) (construing word, clause, sentence, statutes “so that no or phrase is rendered surplusage, superfluous, meaningless, or Lake, nugatory”) (citing 301, Oakland v. Mountain 392 Md. 316, 1036, (2006); 896 A.2d State, 1045 Mazor v. Dep’t of Correction, 355, 360-61, 82, (1977)). 279 Md. 369 A.2d 86-87 contention, In rejecting the State’s we conclude that General Assembly intended to treat the crimes of theft and exploitation of a vulnerable adult separate as and distinct offenses.
Undue Influence Next, we turn to the issue of whether ob tained Wright’s property by undue influence. The statute defines undue influence as “domination and influence amount ing and coercion by exercised another person to such force an extent that a vulnerable prevented adult was from exercis 8-801(a)(7)(i) ing free judgment § choice.” of the Criminal added). Law Article (emphasis may One infer coercion from the totality of the facts and circumstances surrounding the transfer of property. 275, 307, See Winder v. 362 Md. 97, 765 A.2d (explaining we determine whether though provide 14. Even protection against most states some form of adults, only of elders or vulnerable a few states have See, punish enacted criminal e.g., statutes that such conduct. Ark.Code (2006); 18-6.5-103(5) (West § § Ann. 5-28-103 Colo. Rev. Stat. Ann. 2004); (2007); § § Ga.Code Ann. 30-5-8 Kan. Stat. Ann. 21-3437 (2002); (West 2009); § Minn.Stat. Ann. 609.2325 Vt. Stat. Ann. tit. (2008). Meanwhile, § 1380 other have approach states taken the enhancing penalties against for theft crimes elders or vulnerable See, 13-702(c)(13) e.g., (2001); § adults. Ariz.Rev.Stat. Ann. Cal.Penal (West 2009); (2001); § § Code D.C.Code Ann. 22-3601 730 Ill. (West 2007); Comp. (Lexis- § § Stat. Nev.Rev.Stat. 193.167 5/5-5-3.2 2006); (West 2003). § Nexis Okla. tit. Stat. 991 a-17 the exercise of free will or a confession was obtained considering affecting the extant circumstances coercion confession). suspect’s interrogation case, never forced In the contends she present any property, including into Wright relinquishing nor coerced Wright’s she maintains that Accordingly, his truck or house. remained free overborne. Because free will was never own, his coercion to make decisions on force or unduly that she did not influence Tarray asserts him his See v. Coch causing relinquish property. Figgins (2008) (ex rane, 392, 411-14, 403 Md. 942 A.2d 747-49 of undue influence in a will plaining presumption that the that, in view of the by showing contest case can be rebutted circumstances, In contrast voluntary). the transfer was *15 contention, jury, the State maintains that the reason Tarray’s inferred from the of the circum ably, totality could have stances that free will was overborne. Wright’s although surrounding
We note that the circumstances possession respect transfer of interest and with to the truck its in strongest argument and house State with provide influence, of the of undue support presence any argument based on these fails. re- Wright’s testimony circumstances jects the notion that obtained the truck or house amounting “domination and influence to force and coercion.” trial, At testified that he to agreed provide transporta- tion and for because he felt to do housing obligated so out of a in loyalty sense view of benefit received from rendered. prior Wright’s part services decision to unreasonable, way with his he did seem may but his he so testimony shows that did because of his own judgment rather than “force and coercion” to the extent that a vulnerable adult could not exercise his or her free will. Cf. Maxon, (2003) 67, 202, State v. 79 P.3d 207-08 Kan.App.2d (concluding that evidence was sufficient to show undue influence the defendant to where orchestrated transfers coincide peri- with the vulnerable adult’s “manic or ‘giving’ ods”). “between a rock though Wright Even was hard testified, he still had the place,” as he benefit of a choice. Therefore, we conclude that the evidence was insufficient Tarray unduly the conclusion that influenced support Wright, him causing property. his relinquish
Deception 8-801(a)(2) of the Criminal Law Article Section § that in 7- provides “deception” meaning has as stated 7-101, § According deception 101 of that article. occurs when, acts, among person knowingly other either “create[s] in impression or another a false that the offender confirm[s] does not believe to be true to correct a false [or] fail[s] that the offender has created or con impression previously outset, reject At the expressly Tarray’s firmed.” we conten tion, us, during argument proof made oral before of theft or of a by deception exploitation requires vulnerable adult the victim he proof actually aware that or she was being deceived. Detrimental reliance is not an element of by deception theft or of a vulnerable exploitation adult. We plain language consider the of both the theft and (as of a vulnerable adult statutes confirmed the legislative statute) of the history theft and conclude that both statutes mislead, intent require proof proof offender’s the victim was mislead. See Cardin 73 Md.App. that, (holding plain 533 A.2d of the light language legislative history, Maryland’s of the statute and its theft not require consolidated statute does detrimental reli ance as an element crime of theft by deception).
Tarray further contends that the did not prove exploi- State tation of a it vulnerable adult because did not establish the deception. Tarray element of maintains that the Specifically, on the of undue influence in proceeded only modality State to of a vulnerable adult. Ac- attempting prove exploitation cording Tarray, supports position to the record her because the not contain a jury given statutory instruction did definition influence, term other any prosecution’s for than undue and the closing argument substantially focused on undue influence. Thus, contends, Court, at Tarray argument oral before this preserve that the failed to the issue of deception State
613 is sufficient as waived that the evidence thereby argument the deception. to the element of because,
Tarray’s flawed fatally contention rather appeal, Tarray for the to the issue failing preserve than State the sufficiency the of argument to her as to preserve failed at failing object, particularity, with of to deception evidence judg a moving when for Fundamentally, the time of trial. the the close of the evidence offered acquittal ment of at trial, evidence, the and, in at the all the a close of jury State why all the reasons particularity with defendant must state 4—824(a);Muir v. motion Md. Rule granted. should be (1986). 218-19, 1105, 1110 This 308 Md. A.2d sufficiency failed as to the of evidence Tarray to do deception. prove contends, time, the first was for evidence record,
insufficient to of The support finding deception. however, case, Tarray at the reveals that close of the State’s for as to the of only judgment acquittal sufficiency moved said, Tarray’s evidence undue counsel prove influence. did threats or “[Wright] testify not there were prevented coercions.... from ... free exercising [H]e and choice” and she did not “think that that judgment Moreover, influence.” at close of would constitute undue said, I evidence, did Tarray’s “Okay. all counsel want Later, judgment ... renew for she my acquittal.” motion said, “And, I just incorporate I’d ... the same suppose judgment arguments original acquit- motion tal.” nor mentioned challenged
Because motion neither Tarray’s sufficiency deception, Tarray of the evidence to prove the trial this contention that is judge failed articulate to raised first time on being appeal. Accordingly, for the not state all the reasons the trial particularity why did with Muir, should the motion. 308 Md. at judge granted have at (citing 517 A.2d State 308 Md. 517 A.2d Lyles, (1986)). Thus, we conclude that did not preserve *17 appellate review her argument regarding the sufficiency of the evidence as to the element of deception.
Tarray acknowledges that the State may prove exploitation of a vulnerable adult by any one of the three modalities prescribed statute, but she contends that the State failed to raise the issue of deception at trial and thereby did not preserve the issue for appeal. According to the Tarray, record supports this theory because the jury instruction given did not contain a statutory definition for any term other than influence, undue and the prosecution’s closing argument fo- cused substantially on undue influence. record, however,
The clearly refutes this theory in several First, respects. the criminal information charged Tarray with § violating 8-80115 and the specific tracked language statute. Because the statute is disjunctive, drawn State was entitled to prove the offense by any one of the prescribed modalities, including Second, deception. although Tarray correctly out points that the jury was only given the statutory definition of undue influence before closing argu ments, conveniently she overlooks the fact the jury instruction provided that may State prove that Tarray Wright’s obtained property by any one of the three modalit Moreover, ies.16 at closing argument, said, the prosecutor “The Defendant obtained property of the victim by using ” deception, intimidation or Thus, undue influence.... we con- provides, 15. The part: statute in relevant (b) person may knowingly Prohibited.—A willfully obtain intimidation, deception, or undue of an individ- influence person ual reasonably that the knows or should know is a vulnerable adult with deprive intent the vulnerable adult of the vulnerable added.) property. (Emphasis adult’s 8-801(b) § of the Criminal Law Article. one, instructing jury 16. When judge on count the trial court stated: offense, [Tarray] In order to convict of this prove the State must (1) adult; following things: (2) the victim was a [Tarray] vulnerable adult; (3) knew the victim [Tarray] was a vulnerable proper- obtained ty by using deception, the victim intimidation or undue influence property; [Tarray] obtain the deprive intended to the victim of the added). property. (Emphasis argument not waive the did elude State *18 deception. of as to the element evidence is sufficient involving instances separate at least two The record reveals conduct, is sufficient to either of which Tarray’s deceptive obtained the vulner- Tarray conclusion that jury’s support First, evidence there is by deception. able adult’s using bank accounts several unauthorized Tarray opened Amer- a Bank of Tarray opened name. Wright’s Specifically, in initial place Wright’s and used it checking ica account the ac- Tarray opened account. checking Bank of America account by misleading representatives the phone count over to the account (Tarray) open was authorized believing into she cash, Wright initial in payment for the Wright. Except for initial Bank check'—from his Tarray weekly by personal paid As opened by Tarray. the one of America account—not time, Tarray began preparing over Wright’s health declined Tarray prepare to continued to Wright sign. the checks for at the Wright’s signature every for end paychecks her own pay period. 22, 2005, however, from the Tarray December deviated
On check, she with a practice presented course of when in the amount of obtaining signature, his purposes $1,000, the same address as earlier checks. Unlike bearing $1,000 checks, however, the check for was written the earlier misleading Wright believing into By on a different account. account, on his authorized that he had a cheek drawn signed in knew impression Wright Tarray created a false Tarray may have been entitled to Although Tarray was not true. rendered, for services she was entitled compensation her and then by creating, failing into paying deceive correct, that he was impression Wright signing the false on the account that he had opened check drawn personal Second, there is evidence that over initially and authorized. Tarray earned well Tarray’s employment the course of $24,000, em withholdings. Generally, over without tax payroll are to withhold federal and state ployers required States, 435 Public Co. v. United taxes. See Cent. Ill. Serv. 917, 919-20, 24-25, 55 L.Ed.2d 86-87 U.S. 98 S.Ct. (1978) Lowe, (discussing tax see also withholdings); Shanks 538, 542, 364 Md. 774 A.2d (requiring reports on the amount of tips withholding received for purposes). Wright testified that he intended to deduct from Tar- taxes but he he ray’s paychecks, enough admitted that did not know do so. He testified that informed him that she knew how to make the calculations and would make the deductions. never made the A withholdings. reason inferred, evidence, jury able could have from the that Wright was under the that he impression delegated duty had Further, payroll Tarray. withhold taxes to the jury could have concluded that had no intention to taxes withhold and deceived to make the Wright by failing deductions. Con circumstances, sidering totality jury reasonable *19 could have deception inferred from the fact that Wright trusted and she Wright’s failed handle affairs competently and Also a reasonable could have honestly. jury that Wright found was deceived when various Tarray opened accounts, unauthorized named herself as authorized credit account, card holder on the Citigroup and made cash with drawals. evidence, our upon
Based review of the State’s all including therefrom, reasonable inferences drawn in a light most favor- State, able to the we conclude that a rational trier of fact could not have found the element beyond of undue influence a Nevertheless, reasonable doubt. because waived argument regarding sufficiency of the evidence to support review, finding deception, using the same standard of we found, that conclude a rational trier of fact could beyond have doubt, Thus, a reasonable the element of deception. we hold that the evidence legally was sufficient to sustain the convic- tions for exploitation of a vulnerable adult and conspiracy exploit a vulnerable adult.
JUDGMENT THE OF CIRCUIT COURT FOR CHARLES COUNTY AFFIRMED. APPELLANT PAY THE TO COSTS.
HARRELL, BARBERA, JJ., BATTAGLIA and Concur. HARRELL, J., which BATTAGLIA Concurring Opinion JJ., BARBERA, join. analysis Majority opinion fully I concur with of a Tarray’s exploitation conviction for affirming regarding modality of commit- deception based on vulnerable adult however, my separately, register the crime. I write ting conclusion disappointment Majority opinion’s with conclude, jury evidence also to there was insufficient for doubt, exerted undue influ- beyond reasonable her ence over victim. I separately
A reader write may (reasonably) why wonder affirmed, I at issue is a result to which where conviction I it is that it my especially subscribe. write because view carefully correctly for the Court important prospectively This is first interpret opportunity this statute. the Court’s statute, of a Adult Exploitation to consider the Vulnerable (2002 RepLVol., Supp.), Code Criminal Maryland Law Article, § with a in this large aging population 8-801.1 Faced predict likely and in I that the courts will country our of vul- prosecutions involving exploitation see an increase in not, itself, advanced and of age nerable adults. While does ac- necessarily vulnerability with often equate vulnerability, companies aging.2
I would of a Tarray’s affirm conviction ground on the vulnerable adult also evidence to prove sufficient undue influence. *20 review to the in challenge sufficiency a evidence
[W]e evidence, trial in jury by determining whether viewed light most favorable the prosecution, supported conviction of such that rational trier of fact [Appellant], could have the essential of the crime beyond found elements a reasonable doubt. citations, indicated,
1. All otherwise are to the Criminal Law unless Article. always Wright, A2. vulnerable adult will not be a senior citizen. here, only fifty years age victim at the time of the here. offense 618 State, 59, 76-77, (2007).
Allen v.
402 Md.
421,
935 A.2d
431
province
is not the
of an appellate
case;
court to retry
“It
rather, we
review
evidence and all inferences in a light
most favorable to the State.” Id. at
Although transactions involving truck and the home occurred outside the time period specified in the criminal information, there remained sufficient evidence that could convince a rational fact finder of Tarray’s guilt under the undue influence standard. For example, as noted by the 611-12, Majority opinion (Maj. Op. 739), at 979 A.2d at expressed in his testimony that he agreed to the demanded increases in Tarray’s salary he because felt as if he was between a rock and a hard place. He explained that he was in if position because he “didn’t have ... [Tarray] where I go?” would At that in point his testimony, the trial judge ordered a recess because the witness had become “extremely resumed, emotional.” When testimony that, Wright stated in survive, order to he needed help his house. He also that he indicated lost’contact with family his as a result of the from his wife. separation
619
“in between a
position,
Wright’s
characterizes
Majority
The
and
including a choice
as
place,”
rock and a hard
was the result of
he
of his
disposed
manner in which
than “force and coercion.”
rather
judgment,
bad
inferentially
that is not an
611-12,
Although
Instead, jury’s function and Majority usurps appro- role of an On a appellate jury. sufficiency to itself the priates duty “give regard our is to ‘due question, of the evidence fact, resolution findings conflicting its evi- [jury’s! dence, opportunity its observe and assess significantly, ” Smith, at of witnesses.’ 374 Md. credibility State, 2, 12, 796 A.2d Moye A.2d at 668 369 Md. (quoting (2002)). however, substitutes Majority opinion, The in light most favorable to place jury. itself Viewed trier of fact could have found the a rational essential influence a reasonable doubt. beyond element of undue I with the although judgment concur Accordingly, and its affirmance of the relevant conviction Majority opinion there on I would further hold that deception grounds, *22 evidence ground sufficient to sustain conviction on the of undue influence.
Judges BATTAGLIA and BARBERA authorize me to state join this they concurrence.
OF GILLAND, Respondent. Michael Brian 35, Sept. Term, Misc. Docket AG No. 2009. Appeals Maryland. Court of of Sept. 2009. ORDER consideration of the Upon Joint Petition for Disbarment by herein, 16-772, Consent filed pursuant Maryland Rule it is 14th day September, this
ORDERED, Appeals Court of that the Maryland, Gilland, be, Michael Brian Respondent, and is hereby dis- barred consent from the practice of law in the State of further, Maryland; and it is
ORDERED, that the Clerk of this shall Court strike name of Michael Brian Gilland from the register attorneys, 16-772(d) pursuant Maryland Rule shall certify fact to the Trustees of the Client Protection Fund and the judicial of all Clerks tribunals this State.