Breakfield v. State

MATRICCIANI, J. On February 2, 2009, James Edward Breakfield, appellant, was convicted by a jury in the Circuit Court for Baltimore City of misappropriation by a fiduciary and felony theft. On the misappropriation count, the court sentenced appellant to one year of imprisonment. On the felony theft count, the trial judge sentenced appellant to three years, suspended all but one year, to be served concurrently with the sentence imposed for the misappropriation conviction. In addition, the court ordered appellant to serve three years probation, beginning with his release from incarceration, and to pay restitution of $14,000.00 to the Criminal Injuries Compensation Fund.

Appellant filed a timely appeal, raising the following questions, which we quote: 1. Did the trial court err in excluding the testimony of three defense witnesses? 2. Is the evidence insufficient to sustain the convictions? 3. Are separate sentences for felony theft and misappropriation by a fiduciary improper? 4.

Did the trial court err in ordering Mr. Breakfield to pay restitution of $14,000.00 to the Criminal Injuries Compensation Board (CICB)? For the reasons set forth below, the judgments shall be affirmed, but we direct the circuit court to merge the prison sentences, vacate the restitution order, and remand for a reconsideration of the restitution issue. Facts and Proceedings Appellant was co-owner and manager of C & J Peaceful Assisted Living Home, Inc. (“C & J”), which had two locations in Baltimore City. Nellie Jackson was a 78 year-old resident at the C & J facility located at 1011 Reverdy Road, where she stayed for a total of 15 days in the summer of 2006.

Appellant’s trial was conducted from January 29 until February 2, 2009, and concerned two counts: first, fraudulent misappropriation of Ms. Jackson’s money that he held in a fiduciary capacity, in violation of Md.Code (2002, 2006 Repl.Vol.), § 7- ³⁸² 113(a)(1) of the Criminal Law Article (“CL”), and, second, felony theft, in violation of CL § 7-104. The criminal acts were alleged to have taken place between June 22, 2006, and August 2, 2006. The State’s first witness at trial was Sharon Smith, assistant business manager at HCR Manor Care-Dulaney in Towson (“Manor Care”), who testified that Ms. Jackson resided at Manor Care for 41 days in May and June of 2006. On June 22, 2006, Ms. Jackson was discharged from Manor Care to C & J, and Manor Care issued her two checks, representing the balance of her funds held on account.

The first check, dated June 22, 2006, was for $25,000.00, and the second check, dated June 23, 2006, was for $2,404.49. Each check was payable to the order of “Nellie Jackson, c/o C & J Peaceful Asst. Liv. Home.” Ms. Jackson returned to Manor Care in late November 2006, where she stayed until March 2007, when she was discharged to Maryland General Hospital.

Ms. Jackson died in 2008. Gina Jennings, the Director of Nursing at Manor Care, testified that Ms. Jackson was an elderly, frail woman who spent most of the time in her room, doing things like crossword puzzles and writing letters. She neither harmed anyone nor was at risk for wandering or leaving the building. Manor Care provided additional one-on-one care only if a resident was a risk to herself or to others and only if such care was ordered by a physician.

If a resident desired one-on-one care but it was not medically ordered, Manor Care would provide it through an outside agency, at the resident’s expense. Ms. Jennings testified that the only change in Ms. Jackson’s condition between her first and second stay at Manor Care was that “she came back with more cardiac medications” due to a heart attack between the two stays, but there was no change in her psychological profile. Taressa Crest is a health facility nurse surveyor with the Assisted Living Unit of The Maryland Department of Health and Mental Hygiene. She testified that she inspected both of C & J’s locations in 2006.

She did not recall the exact dates or whether Ms. Jackson was present at the time of her ³⁸³ inspections. Ms. Crest found both facilities to be “in compliance,” meaning “they fulfilled the minimum requirements under the COMAR regulations.” Ms. Crest explained that a resident agreement, required by regulation, is a contract between an assisted living facility and its resident that lists the services to be provided and the fees. There are three levels of care in an assisted living facility, with level three being the maximum care. If a resident wants extra services not included in the resident agreement, an addendum to the resident agreement is required.

The purpose for requiring this written addendum is “to prevent misuse of resident funds.” Additional fees may be charged to the resident as long as they are documented in the addendum. If a resident wants one-on-one care, the facility must first have a healthcare practitioner assessment form completed by a physician. Ms. Crest further testified that a resident’s funds are handled by either the resident, the resident’s agent, or the assisted living facility. If the funds are handled by the facility, written authorization by the resident is required and the facility must keep the funds in an interest-bearing account, separate from the facility’s funds, and keep accurate records of how the resident’s funds are spent.

A “representative payee is someone who is authorized to manage the account of the resident.” Ms. Crest was not sure whether appellant was an authorized payee of Ms. Jackson. The State’s final witness was Yvette Finney, from the Attorney General’s Office, Medicaid Fraud Control Unit. She had interviewed Ms. Jackson, employees of assisted living facilities in which Ms. Jackson resided, and she had subpoenaed bank and medical records from the facilities in which Ms. Jackson resided in 2006. Ms. Jackson signed a resident agreement with C & J on June 16, 2006, which provided that she would pay $3,500.00 per month for level three services, plus a $600.00 security deposit.

There was no reference to 24-hour one-on-one care ³⁸⁴ in the resident agreement. When Ms. Jackson first arrived at C & J on June 22, 2006, she had $27,404.49 in her account. Ms. Finney testified that on a C & J initial nursing assessment, signed by Dionne Hudgins, RN on June 27, 2006, it was stated that Ms. Jackson had no difficulty sleeping but she was incapable of administering medications to herself. The pre-printed portion of the form included the following: Resident’s Medical Status Criteria: 1.

The resident’s health care needs are Chronic, Stable, Uncomplicated, Routine. 2. The Environment is Conducive to the Delegation of Nursing Tasks. 3. The Resident is Unable to Perform All of His/Her Own Care. 4. The Resident is in Need of 24-hour Supervision And/or Assistance.

Initially, Ms. Jackson remained at C & J for five days, from June 22 until June 27, 2006, and then was admitted into Good Samaritan Hospital for arthritic pain. She remained at Good Samaritan through June 29, and on June 30, Ms. Jackson was transferred to University of Maryland Hospital for inpatient psychiatric services. Ms. Jackson returned to C & J on July 5, 2006, where she remained until July 14, 2006, after which she was returned to the University of Maryland Hospital for respiratory problems. Ms. Jackson was then admitted to Belle Vista, another assisted living facility, on July 31, 2006.

The total time Ms. Jackson spent at C & J was fifteen days. Ms. Finney testified regarding documents produced by appellant pursuant to a grand jury subpoena which was served on April 16, 2007. None of the records mentioned 24 hour one-on-one care being provided for her. State’s Exhibit 10 was a check written from C & J Assisted Living Facility, signed by appellant, payable to Belle Vista Assisted Living Facility, LLC, dated July 31, 2006, which, in the memo column, says “file account closed.” Ms. Finney testified that the M & T ³⁸⁵ Bank Statement for C & J showed that on June 26, 2006, there was a deposit of $25,000 made into the account.

State’s Exhibit 7A was a document dated May 14, 2007, produced by appellant in response to a grand jury subpoena. The document states in relevant part as follows: Ref: Fees for contract services regarding Nellie Jackson 1. Sitter serviee/in room 24/7 flat fee.....$14,000.00 2. Room and Board fee................. 3,500.00 3.

Security Deposit....................... 600.00 4. Miscellaneous items..................... 400.00 5. Total...............................$18,500.00 Note: $10,000.00 Transferred with client to new place of resident. (See in file) At the conclusion of the State’s case, defense counsel moved for judgment of acquittal on the ground that the State had failed to prove that appellant acted with an intent to permanently deprive Ms. Jackson of her money or that he fraudulently and wilfully misappropriated her money.

The motion was denied. The State then moved to exclude the testimony of three defense witnesses based on Maryland Rule 4-263, because the State had just learned their names during voir dire the day before. After a hearing, which lasted more than an hour, the trial judge granted the State’s motion. Appellant testified in his own defense.

He first met Ms. Jackson at Manor Care, and described her as “70-ish”, frail, and able to carry on a conversation and to discuss her personal business. She signed a C & J resident agreement, which called for her to pay $3,500 per month for a semiprivate room. Appellant testified that he gave her a private room for an additional $500 per month, although he normally charged $7,000 per month for a private room. According to appellant, he interpreted the line in the C & J initial nursing assessment that states “resident is in need of 24-hour supervision and/or assistance,” to mean that Ms. Jackson was in need of 24-hour personal care service around the clock.

He testified that such service required assisting ³⁸⁶ with medications, changing soiled bed sheets, providing special dietary food, toilet-training assistance, health and safety concerns, and staying with Ms. Jackson 24/7 when providing such services. The cost for these services was $22 per hour. However, he testified that it was “a mistake, an administrative oversight” for him not to place the additional charges into a written addendum. Appellant took the two checks made payable to Ms. Jackson and placed them in a business account “to establish a payee account and transfer the money to the account when such time the account has been established, usually 30 to 60 days.” During that time, Ms. Jackson requested not to return to the facility.

Therefore, appellant explained that the funds for C & J’s services were deducted, and the balance of $10,000 was passed on to the new facility. He further explained that there was generally a 30-day delay to establish a payee account properly, but because C & J was already in the system, he simply deposited the two checks into that account. Appellant testified that Ms. Jackson was in his facility for a total of eighteen days. However, he charged her $8,000 for two months because he needed to maintain her residence while she was in the hospital.

Appellant could not explain why the resident agreement stated $3,500 per month, and why there was no addendum showing any higher charge for a private room. According to appellant, the 18 days Ms. Jackson stayed with C & J equaled 432 hours, so the sitter services at $22 per hour cost an additional $9,504. There was a $600 security fee, and a $400 miscellaneous fee, which included a charge for sending flowers from C & J to Ms. Jackson when she was at the hospital. The $10,000 check he wrote to the next place of residence brought the total to $28,500, which he pointed out was more money than she had when she first entered C & J. Appellant testified that he personally provided all extra one-on-one services for Ms. Jackson, although he had general staff assist with female toiletry activities.

Appellant testified that he was there around the clock when Ms. Jackson was there, ³⁸⁷ despite the fact that he was listed as assisted-living manager at the other C & J assisted living facility on Lucia Avenue. According to appellant, C & J had no clients at the other facility at that time. After closing arguments, the jury deliberated and convicted appellant of both charges. On April 14, 2009, the court sentenced appellant to one year of imprisonment and ordered him to pay $14,000 to the CICB.

On May 4, 2009, the appellant filed his appeal to this court. On that same date, the appellant filed a motion for modification of sentence, which the court denied on May 7, 2009. DISCUSSION 1. Trial court’s exclusion of three defense witnesses Appellant’s first argument is that the trial court committed reversible error by excluding the testimony of three defense witnesses.

He argues that the ruling was based on defense counsel’s unfamiliarity with Maryland Rule 4-363’s new 1 disclosure requirement. The excluded witnesses were two character witnesses and one fact witness. Appellant argues that the State had sufficient time to investigate their background prior to their testimony, given that the prosecutor was provided with their names on the first day of a three-day trial. The State maintains that the trial court properly exercised its discretion when it excluded these witnesses due to a failure to abide by the rules governing discovery in criminal cases, and that “the exclusion of the witnesses was an appropriate remedy given the severity of the violations committed by defense counsel.” On April 8, 2008, the Court of Appeals adopted a new version of Maryland Rule 4-263, which currently provides, in relevant part, as follows: Rule 4-263.

Discovery in circuit court * * * ³⁸⁸ (e) Disclosure by Defense. Without the necessity of a request, the defense shall provide to the State’s Attorney: (1) Defense Witness. The name and, except when the witness declines permission, the address of each defense witness other than the defendant, together with all written statements of each such witness that relate to the subject matter of the testimony of that witness. Disclosure of the identity and statements of a person who will be called for the sole purpose of impeaching a State’s witness is not required until after the State’s witness has testified at trial.

(3) Character Witnesses. As to each defense witness the defense intends to call to testify as to the defendant’s veracity or other relevant character trait, the name and, except when the witness declines permission, the address of that witness; (4) Alibi Witnesses. If the State’s Attorney has designated the time, place and date of the alleged offense, the name and, except when the witness declines permission, the address of each person other than the defendant whom the defense intends to call as a witness to show that the defendant was not present at the time, place, or date designated by the State’s Attorney[.] (h) Time for Discovery. Unless the court orders otherwise: (2) the defense shall make disclosure pursuant to section (e) of this Rule no later than 30 days before the first scheduled trial date.

(j) Continuing Duty to Disclose. Each party is under a continuing obligation to produce discoverable material and information to the other side. A party who has responded to a request or order for discovery and who obtains further ³⁸⁹ material information shall supplement the response promptly- (k) Manner of Providing Discovery; Material Not to be Filed with Court. (3) Not to be Filed with the Court.

Except as otherwise provided in these Rules or by order of court, discovery material shall not be filed with the court. This section does not preclude the use of discovery material at trial or as an exhibit to support or oppose a motion. (n) Sanctions. If at any time during the proceedings the eourt finds that a party has failed to comply with this Rule or an order issued pursuant to this Rule, the court may order that party to permit the discovery of the matters not previously disclosed, strike the testimony to which the undisclosed matter relates, grant a reasonable continuance, prohibit the party from introducing in evidence the matter not disclosed, grant a mistrial, or enter any other order appropriate under the circumstances.

The failure of a party to comply with a discovery obligation in this Rule does not automatically disqualify a witness from testifying. If a motion is filed to disqualify the witness’s testimony, disqualification is within the discretion of the court. After appellant’s motion for judgment of acquittal was denied and he advised the court of his desire to testify, the prosecutor moved to exclude the three defense witnesses, whose names she had learned the previous day. Defense counsel’s response was as follows: I thought we had supplied the witnesses.

This is the first time I’ve heard that counsel didn’t have it, but I think she’s had them now for two days to in fact have time to question them.... Judge, I thought the State was in possession of them. I thought — I can’t say when they were sent, but I talked to the State on several occasions and I never thought that they did not have them. ³⁹⁰ Throughout the hearing, appellant’s counsel maintained that he mistakenly believed that the State already had the witnesses’ names. On appeal, however, appellant raises a different reason: he argues that defense counsel was unfamiliar with the new version of Maryland Rule 4-263 and the fact that it required both State and defense counsel to provide all witness names within 30 days of trial.

Simply put, this argument was never raised by defense counsel during trial, and, for that reason, Maryland Rule 8 — 131(a) precludes it from being raised for the first time on appeal. “[U]nless a defendant makes timely objections in the lower court or makes his feelings known to that court, he will be considered to have waived them and he cannot now raise such objections on appeal.” Caviness v. State, 244 Md. 575, 578 , 224 A.2d 417 (1966); accord. Halloran v. Montgomery County Dep’t of Public Works, 185 Md.App. 171, 202 , 968 A.2d 1104 (2009). This Court has repeatedly stated that we will not decide an issue unless it plainly appears to have been decided below. Sutton v. State, 139 Md.App. 412, 424 , 776 A.2d 47 (2001); Acquah v. State, 113 Md.App. 29, 43 , 686 A.2d 690 (1996) (Maryland Rule 8-131 requires party to raise issue before trial court to preserve it for appeal).

Even if appellant were to have preserved this issue properly by raising it before the trial judge, we cannot say that the judge committed error by granting the State’s motion to exclude the witnesses. In the case before us, the State was not provided "with the names of any defense witnesses prior to trial. The first time any name was provided was during voir dire, when defense counsel provided the names of Mary Moses, a witness who had allegedly performed 24-hour personal care services for Ms. Jackson, and two character witnesses, Charles Cremartie and Ernest Widener. The trial had been rescheduled at least twice since the new rules came into effect, and defense counsel had ample opportunity to provide the names of character witnesses prior to trial. ³⁹¹ Although it is true that Rule 4-263(n) does not automatically require exclusion of evidence for a violation of discovery, the Rule states that the trial court has discretion to decide what sanction is appropriate under the circumstances.

In Thomas v. State, 397 Md. 557, 570-71 , 919 A.2d 49 (2007), the Court of Appeals held that in exercising its discretion regarding sanctions, “a trial court should consider: (1) the reasons why the disclosure was not made; (2) the existence and amount of any prejudice to the opposing party; (3) the feasibility of curing any prejudice with a continuance; and (4) any other relevant circumstances.” The Court further noted that exclusion of evidence is not a favored sanction, and should be ordered only in extreme cases. Id. at 572-73 , 919 A.2d 49 . In the case before us, the trial court’s exclusion of Mary Moses as a fact witness was reasonable, because her name had never been disclosed on any subpoenaed document provided by appellant regarding employees or contractors of C & J. As to the remaining two character witnesses, appellant argues that they should have been permitted to testify because defense counsel’s failure to disclose them prior to trial was not willful, but rather, the result of counsel’s mistaken belief that disclosure of non-alibi witnesses was not required. As noted at trial, he raised a different reason for non-disclosure — he thought he had already advised the State.

The trial court was not erroneous in this case by utilizing the powers set forth in Rule 4-263. Simons v. State, 159 Md.App. 562, 576 , 860 A.2d 416 (2004) (if there is a violation of discovery rule requiring disclosure of pre-trial identifications, remedy is generally within sound discretion of trial court); see also Middleton v. State, 49 Md.App. 286 , 431 A.2d 734 (1981) (in prosecution for robbery, no abuse of discretion in refusal to permit alibi witness to testify where notice of alibi given on first day of trial);. Although preventing all witnesses from testifying was a harsh sanction for violation of the discovery rules, Rule 4-263 makes plain that defendants may not wait until trial to disclose their evidence, and if they do, the trial court has authority to exclude such evidence from the case. ³⁹² 2. Sufficiency of the evidence.

In deciding a claim relating to the sufficiency of the evidence, the appropriate inquiry is “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 the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979); accord, State v. Smith, 374 Md. 527, 533 , 823 A.2d 664 (2003). In making this review, “all of the evidence is to be considered in the light most favorable to the prosecution.” Jackson, 443 U.S. at 319 , 99 S.Ct. 2781 (footnote omitted) (emphasis in original); accord. Bible v. State, 411 Md. 138, 156 , 982 A.2d 348 (2009); Moye v. State, 369 Md. 2, 12 , 796 A.2d 821 (2002). This rule applies to both direct and circumstantial evidence.