Cain v. State

HOLLANDER, J. In this appeal, we must consider the conduct of Martin Todd Cain, appellant, who, in effect, sought to profit from the 9/11 disaster by posing as a good Samaritan. Cain’s conduct led a jury sitting in the Circuit Court for Wicomico County (Beck-stead, J., presiding) to convict him of theft over $500, for which he was subsequently sentenced to eight years’ imprisonment. On appeal, Cain asks: Was the evidence sufficient to sustain the conviction of felony theft? For the reasons set forth below, we shall affirm.

FACTUAL SUMMARY Following the terrorist attacks of September 11, 2001, appellant, who owned Cain Concrete Imprints (“CCI”) in Salisbury, Maryland, purportedly sought to assist with the relief efforts in New York City. According to Dawn Mitchell, the news director for WMDT Television, Channel 47, appellant contacted the television station on September 11, 2001, and asked “us to do a news story on his efforts to contribute to the tragedy that happened that very morning....” He explained that “[h]e was collecting donations, any type of thing that could be of assistance to the 9/11 fund and efforts to get everything up to New York.” Mitchell testified that the story aired on three newscasts that evening. As part of the story, appellant was interviewed on camera and viewers were told to send donations to CCI. The address and telephone number for CCI were also provided.

The following day, September 12, 2001, viewers were told to send donations to Hebron Savings Bank. ³⁶⁹ Elsie Campbell, a retiree, testified that, after she saw the story about Cain on Channel 47, she mailed a donation to CCI “for the clean-up of the World Trade Center.” Her donation, a check for $100, was dated September 12, 2001, and made payable to “Cain Concrete.” Campbell explained that she sent the money, which was never refunded, because she “just felt so bad.” She added that she never intended for appellant or CCI “to have that money.” Ms. Campbell’s check, drawn on an account with her husband, bears the following notation on the memo line: “Clean up of World Trade Center.” Dorothy Hudson, another retiree, testified that she sent a donation of $100 for the relief effort in New York, by way of a check drawn on a joint bank account "with her husband. She sent her check, dated September 12, 2001, and made payable to “Cain Construction,” after she “heard [about] it on TV....” Hudson explained that the money was intended to “help with the 9/11 disaster” in New York. Her check, which was not returned, bears the notation, “Disaster Fund N.Y.” Patricia Thorp 1 testified that she saw appellant on television, explaining that “he was collecting money and trucks and heavy equipment” to assist in the relief effort in New York. Thereafter, she mailed a check dated September 12, 2001, for $50, payable to “Cain Concrete,” to help with the relief effort.

On her check, she noted that it was for the “New York Disaster.” Thorp added that she had “absolutely” no intention of giving the money to CCI or to Cain personally. In addition, Thorp convinced her employer to send a contribution of $500 on behalf of his business, Lloyd Saunders Roofing Corp., “to go to the people in New York.” According to Thorp, that donation, by check dated September 12, 2001, payable to “Cain Concrete,” was intended to assist with the relief effort in New York, and was not meant for CCI or Cain personally. The check reflects the following notation: “Dona ³⁷⁰ tion/NY Disaster.” Neither Thorp nor her employer was ever reimbursed. Copies of the cheeks from Campbell, Hudson, Thorp, and Saunders were admitted into evidence. 2 Transcripts of the news broadcasts were also admitted into evidence, along with a videotape of the broadcasts.

Melody Carter, Vice-President of Hebron Savings Bank, worked at the branch located on Nantieoke Road in Salisbury. She testified that on September 12, 2001, appellant opened the “Red, White & Blue Strikes Back” account (the “Account” or the “RW & BSB Account”). Carter explained that deposits to the RW & BSB Account had to be made by check “[b]ecause we have to have a paper trail.” In addition, the bank kept the receipts for all deposits and expenditures. The Hebron Savings Bank records of all transactions regarding the RW & BSB Account were admitted into evidence.

A total of $8,272.87 was deposited to the RW & BSB Account. No activity was shown on the Account after October 1, 2001. At the time of trial, there was $2,175.07 left in the Account. When asked how disbursements were to be made from the RW & BSB Account, Carter responded: “They have to bring in receipts, and we have to keep the receipts.

And if they ... tell us what they’re for, we write it on there, take pictures of the check that’s going to be disbursed and get it to the person.” All withdrawals required the signatures of appellant and Carter, and the Account’s checkbook was kept at the bank “at all times.” With regard to disbursements, Carter testified that appellant would come to the bank with the receipts, tell her what the receipts were for, she would add them up, and then issue a ³⁷¹ check drawn on the RW & BSB Account. No disbursements were made from the Account without a receipt. According to Carter, there were only three disbursements from the RW & BSB Account. One was made on September 14, 2001, for $315, after appellant presented a receipt from Home Depot for the purchase of 60 hard hats.

The second check, made payable to appellant, was for $57.80, after appellant presented a receipt for the purchase of a U.S. flag. The third check, in the total amount of $726, was based on several receipts presented by appellant. Thus, the total disbursement amounted to $1,098.80. 3 Carter had no knowledge of what the objects purchased would be used for, other than what appellant told her. Carter testified: That’s a lot of receipts that were added together.

The first one was for the Exxon, for Tiger Mart, for gas, that he [appellant] had been using to ride around to get donations, for 35 dollars. There is another one for fuel at the Mini Market for 20. [One was] on 9/14. 9/21. Another gas for 7.80 on, yeah, 9.80, 9/21. The Home Depot for wood on, that was on 9/13 for 146.48.

The Home Depot for fasteners, bolts, for 183.99. * * * And fuel on 9/19 for 40 dollars. Then the Home Depot for 58.45, and that was for, it looks like some kind of, I’m not sure what that is. A bolt maybe, something, I’m not sure what that was. Some kind of equipment or something.

And then I’ve got another one here to the K-Mart that he ³⁷² had gotten drinks for people that were working out there, 19 dollars. The Home Depot for 92.35, and that was for lumber to build beds in a truck body, I believe. 51.04 for diesel fuel. And foam and plywood on this one here at the Home Depot and that was for 71.95. It was for beds to go in the trailer.

And that total should total ... 726 dollars. According to Carter, appellant never made a “transfer” of funds from his personal account or from CCI’s account to the RW & BSB Account. All deposits to the Account were made by personal checks, except for one that was in the form of a cashier’s check. The bank did not accept cash contributions, so any cash was exchanged for a cashier’s check.

From July to September of 2001, Buffy Brittingham worked as a secretary at CCI, a sole proprietorship owned by Cain. Brittingham recalled that donations for the relief effort were received at CCI’s business office; people either “dropped off’ checks or mailed them in. According to Brittingham, the checks were made payable to appellant or CCI and “were handed over” to appellant. In addition, approximately $300 in cash was received at the office as a donation for the relief effort.

Brittingham recalled: “A mother and some children brought in a bottle-type thing full of change, money that they had collected.... It was counted and left in the office for [appellant].” Brittingham did not know what happened to the cash. She claimed, however, that she had no dealings with the RW & BSB Account at Hebron Savings Bank. Further, Brittingham stated that appellant’s business account was kept at Peninsula Bank and that appellant was the only one authorized to sign checks on that account.

She maintained that she had no control over the business account, nor did she handle deposits for that account. Brittingham was questioned about the endorsements on the backs of the checks issued by Campbell, Hudson, and Thorp. When asked if she recognized the signatures, Brittingham testified that although she was “not positive,” the signatures “look like ... Marty Cain’s.” And, upon viewing the deposit slips, Brittingham stated that the handwriting on one “resem ³⁷³ bles Marty’s.” However, she was unable to identify the handwriting on a second deposit slip.

The witness was also asked about the receipts obtained during the relief efforts. She explained: Sometimes we had volunteers who would go to different places or schools that had had some sort of fund raiser, they would use their own vehicles to go and pick up the donations, bring them back, and if they had to fill up with gas or something like that, Marty would reimburse them. Or if we had volunteers out, outside organizing the trailers [ 4 ], Marty would get them sodas and things like that for them. According to Brittingham, some individuals or entities donated items, rather than money.

These included socks, t-shirts, toothpaste, razor blades, hard hats, water, canned goods, and a computer. Brittingham left CCI in late September of 2001, because CCI was experiencing financial problems. Brittingham took a computer when she left CCI. She explained that she did not see appellant during her last week of employment, but CCI’s sales manager, Bill Bellfield, told her that appellant had indicated that she “could have one of the computers in the office. 5 She recalled that the computer was sitting, “all taken apart,” on appellant’s desk, and she believed it was an office computer, not the one that had been donated.

Britting-ham also testified that Bellfield gave her permission to take two pagers that had been donated to the relief effort. Further, she acknowledged that he allowed other employees to “take donated items from the storage trailers.” Brittingham maintained that she was given the computer in lieu of part of her pay. Moreover, she claimed that she did not learn until after she left CCI that the computer she took was the one that had been donated by Rent-A-Center. Bell-field contacted her at her new job and told her that she had to ³⁷⁴ return the computer.

Instead, she contacted the donor of the computer and paid for it. Brittingham acknowledged that, after appellant discovered that she had taken the computer, he called her “a thief.” Trooper Tracy Ilczuk of the Maryland State Police subpoenaed the records for appellant’s business account at Peninsula Bank. Upon reviewing the records from September 12, 2001, through December 2001, the trooper determined that the checks from Hudson, Campbell, Thorp, Saunders Roofing, and Cooper had been deposited to CCI’s account, totaling $770. In particular, the Campbell and Cooper checks, totaling $120, were deposited to CCI’s account on or about September 14, 2001. 6 A second deposit was made on September 20, 2001, in the amount of $650, consisting of the checks of Saunders Roofing, Thorpe, and Hudson.

The bank records also indicated that only appellant was permitted to sign checks on the account. During the period of September 12, 2001, through December of 2001, no checks drawn on the Peninsula Bank account were made payable to the RW & BSB Account. In addition, there were no transfers of any kind from appellant’s personal accounts or business accounts to the RW & BSB Account. Defense counsel conceded that donated money had been deposited in appellant’s business account.

During cross-examination of the trooper, the following occurred: [DEFENSE COUNSEL:] I think it’s clear from what we see in the bank records that 770 dollars donated by people that should have gone into the Red, White & Blue account ended up in the Peninsula account, okay? No dispute. Did you or any other law enforcement person ever approach Marty Cain and say, hey, we looked at this stuff and 770 belongs in the other account? ³⁷⁵ [TROOPER ILCZUK:] I attempted to contact Mr. Cain. I was unsuccessful, unable to do so....

Appellant was the sole witness for the defense. He strenuously denied stealing any money that was donated to the 9/11 relief effort. He also denied ever seeing the cash donation of approximately $300. Cain testified that CCI was in the business of “concrete imprinting, pouring concrete work, curb and gutter.” Appellant recalled that, when 9/11 happened, he wanted to help, and thought he could use his expertise to “look for survivors and clean up the mess.” Therefore, he set up the RW & BSB Account.

Moreover, he claimed he had previously been involved in charitable work as a volunteer, and made donations of considerable value, such as the construction of a fountain in an area park. Appellant explained that he “ran all my job sites,” and was present every time his employees poured concrete. He did not, however, handle “the business details” for CCI. Rather, appellant stated that Brittingham and Bellfield were responsible for handling the bank deposit slips and for making CCI’s deposits.

In addition, he stated that Brittingham “handled most of the bill work, paperwork.” Cain agreed that several checks totaling $770 and intended for the RW & BSB Account at Hebron Savings Bank, had been deposited into CCI’s account at Peninsula Bank. But, he denied that he was the one who put the funds in the wrong account. He also denied that he knowingly spent the money. Moreover, Cain claimed that no one ever contacted him to advise that the monies had been deposited into the wrong account. 7 Further, appellant denied having any control over the RW & BSB Account.

He testified: “Buffy [Brittingham] was asked if she could handle everything [for the RW & BSB ³⁷⁶ Account], and she agreed to it. So that was all under Buffy.... I was out on the job sites.” When asked how often he reviewed the bank statements for his business account, appellant responded: “Very seldom.” Appellant added: “I hired a staff to handle my finances inside while I ran the job sites, and that’s how our company was running. And then I discovered that Buffy [Brittingham] and Bill [Bellfield] were stealing from my business.” Appellant agreed that his signature was on the checks for the business account at Peninsula Bank, but explained: “I would leave signed blank checks in the morning, and that’s how most of that was taken care of.

And the payroll checks, I might have signed them that Friday evening, but most of the time they were signed in the morning. And they were left blank.” When asked to identify the endorsements on the back of the donation checks deposited to CCI’s account, he acknowledged that they looked like his signature. Further, appellant recalled that, in the summer of 2001, he was on pain medication for his back. He took various prescribed medications, including Darvocet, Oxycontin, and Vioxx.

Appellant testified: “The Oxycontin, you couldn’t remember nothing at all. I had a poor memory.” With respect to the purchase of 50 or 60 hard hats, appellant said: “The hard hats, when we planned on going to New York City, we wanted all construction workers and we wanted to have experienced men up there because it would be a big demolition job.” As to the lumber, he added: “All that stuff was used to go up there and stabilize anything, to whatever we needed to build a temporary shelter, to build temporary housing, anything.” Appellant conceded that he never took any of the material to New York City; the material was stored in trailers on the site. However, Cain claimed he attempted to bring the material to New York, explaining: “They just didn’t get back with us as far as I know.” He insisted: “I didn’t steal any money, and I didn’t do anything wrong.” ³⁷⁷ In October 2001, appellant realized that the finances for his business were in “chaos.” Therefore, he hired a business attorney and filed for bankruptcy. We shall include additional facts in our discussion.

DISCUSSION Appellant maintains that the evidence was insufficient to sustain his conviction for felony theft. While he concedes that “[t]he evidence showed that Appellant could have misappropriated the money,” he insists that it also showed “that two others at the business had the