Fraidin v. State

MOYLAN, Judge. The appellant, Jacob Fraidin (Fraidin), was convicted by a Howard County jury, presided over by Judge Cornelius F. Sybert, Jr., of theft. Upon this appeal, he raises, in effect, the following eight contentions: 1. That the evidence was not legally sufficient for Judge Sybert to submit the case to the jury; 2.

That Judge Sybert erroneously admitted a court order from a collateral civil case removing Fraidin as a trustee; 3. That Judge Sybert erroneously admitted prejudicial evidence of events preceding the foreclosure proceeding that was the gravamen of the theft offense; ²³⁶ 4. That Judge Sybert erroneously denied him the opportunity to assert “claim-of-right” and “honest belief” defenses; 5. That Fraidin was denied his constitutional right to a speedy trial; 6.

That Judge Raymond J. Kane, Jr. improperly failed to recuse himself from pretrial motions hearings; 7. That Judge Sybert erroneously denied his request for a bill of particulars; and 8. That Judge Sybert erroneously refused to give a jury instruction with respect to a prior inconsistent statement by a State’s witness. The Factual Background To assess the legal sufficiency of the evidence to convict, and to consider several other contentions as well, it is necessary to set out in significant detail the tangled series of financial arrangements preceding and accompanying the alleged theft by deception that took place between September 7 and December 4, 1987.

Although many of the factual issues were in strenuous dispute, the jury, after a five-day trial, was obviously persuaded by the State’s version of events. Our appellate perspective, of course, is to look at that version of the evidence, and any inferences that can fairly be drawn therefrom, most favorable to the State’s position. Fraidin was a principal of Pacific Mortgage and Investment Group, Ltd. (Pacific), which held an $85,000 second mortgage on the property known as 10601 Faulkner Circle, Columbia, first owned for purposes here pertinent by Mr. and Mrs. Solomon Easterling (Easterlings). Although the Pacific mortgage obtained by the Easterlings purported to refinance a first mortgage held by Beneficial Mortgage Co. of Maryland (Beneficial), 1 the money was actually placed in ²³⁷ an escrow account 2 .

No funds were ever disbursed to Beneficial to satisfy the Beneficial mortgage. The Easterlings almost immediately elected to rescind the Pacific mortgage. 3 While it is not clear from the record whether their election was timely, we shall proceed as if the ²³⁸ mortgage were not rescinded. The Easterlings behaved, however, as if they believed the Pacific mortgage had been rescinded and the Beneficial mortgage were still in effect. It is undisputed that the Easterlings never received the $2,496 in excess loan proceeds that would have been due them under a valid mortgage loan from Pacific, although the documents recorded in the land records show that they received the money.

The Easterlings continued to make payments to Beneficial, but made no payments to Pacific. Approximately two years later, Fraidin nevertheless commenced foreclosure proceedings under the Pacific mortgage. The foreclosure auction advertisement stated that the property was being sold “ ‘AS IS’ ... subject ... to restrictions of record ... if any,” and was read aloud by the auctioneer at the September 7, 1987 auction. Fraidin, however, told potential buyers that “Clear title is gonna pass today”.

Jonathan Scott (Scott), a home rehabilitation contractor, placed a successful bid of $112,500 and tendered his $10,000 certified check. Land Title Research of Maryland, Inc. (Land Title), principally owned by Joseph Goldberg (Goldberg), issued Scott a title insurance binder, indicating that the Beneficial mortgage was unreleased of record. Patricia Horak (Horak), office manager of Land Title, called Fraidin to confirm her assumption, based on her title search, the refinance language of the Pacific mortgage, and the tax stamps, that the Beneficial mortgage had been paid off, and the failure to record a release was a mere clerical oversight. 4 Fraidin neither confirmed nor denied her conclusions. Nor did Fraidin correct her statement that she assumed that he, as the closing agent on the last financing, had the Beneficial release.

He “agreed” to send Horak the Beneficial release. The Howard County Circuit Court ratified the sale on November 20, 1987. At the December 4, 1987 settlement, ²³⁹ Fraidin signed a document stating that all the foreclosure proceeds were payable to him, without mention of any deduction for the Beneficial mortgage. Fraidin gave Scott a “trustee’s deed,” a type of deed lacking the customary title guarantees.

On December 7, 1987, Land Title gave Fraidin, as trustee, a check in the amount of $104,064.96, which was deposited in an escrow account. The Easterlings had stopped making mortgage payments to Beneficial in August 1987. In February 1988, as a consequence, Beneficial advised Scott and Goldberg of its intention to foreclose. Goldberg immediately telephoned Fraidin, protesting that the language of the Pacific mortgage and Fraidin’s subsequent conduct had led both him and Land Title to believe that the Beneficial mortgage had, indeed, been satisfied.

Fraidin hung up, telling Goldberg, “Get yourself an attorney.” Goldberg contacted the State’s Attorney. On February 24, 1988, Fraidin was charged with the theft of over $300, a felony violation under Md.Code Ann. art. 27, § 342 (1957, 1987 Repl.Vol.). Beneficial filed a petition in civil court on March 4 seeking satisfaction of its mortgage and Fraidin’s removal as trustee. Meanwhile, Scott made repairs on the house and sold it in April.

The civil hearing concerning the removal of Fraidin as trustee was set before Judge Raymond J. Kane, Jr. on June 6, 1988. Judge Kane recused himself, stating that there might be a conflict of interest in hearing a case wherein Goldberg, his first cousin, was a material witness. Judge Robert F. Fischer took over and adjourned the hearing until June 16 when it became apparent that the it could not be completed that day. The criminal case, meanwhile, was set in the Howard County District Court for June 15.

The State argued that the pending civil matter “may or may not have some bearing” on the criminal case and requested a postponement. Fraidin, representing himself, objected to a postponement, noting that he was not seeking “to delay the ²⁴⁰ orderly flow of justice by requesting a jury trial or requesting any postponements.” Judge James N. Vaughn granted the State’s motion for a postponement with the caveat that no further postponements would be granted. The criminal case was reset in the District Court for September 28, this time before Judge R. Russell Sadler. Judge Sadler ascertained that the appellant expressly waived his right to counsel under Maryland Rule 4-215, and wished to proceed pro se.

He then informed Fraidin of his right to a jury trial and asked him to elect. Fraidin requested that he be allowed to make a preliminary motion first. The judge advised: “If you want to pray a jury trial, you will take your preliminary motion down to the Circuit Court. If you want a trial in this court, then I will hear your motion and we will proceed to trial.” Fraidin elected a jury trial, but protested that the trial judge should have heard his motion in the interests of justice and conservation of court costs, and because it “violate[s] my Constitutional right under the 6th amendment.” In the parallel civil proceeding, Judge Fischer, finding that Fraidin had breached his duty of good faith or loyalty as a fiduciary, ordered him removed as trustee on November 23, 1988.

Judge Kane was scheduled to preside over the preliminary motions hearing in the criminal case on March 2, 1989. He again advised the parties that there might be a conflict of interest regarding Goldberg, his cousin, whose name was listed on the statement of charges. The State argued that although Goldberg might be a witness in the ultimate trial on the merits, no information concerning Goldberg would be adduced at the motions hearing. Fraidin, represented by counsel, indicated that he had no objection to Judge Kane’s presiding.

Satisfied that the statement of charges set forth a crime, Judge Kane denied Fraidin’s motion to dismiss the statement of charges. He also denied Fraidin’s motion to dismiss for lack of speedy trial. On March 23, Fraidin filed a ²⁴¹ demand for particulars, which was denied on May 18 after a hearing. The Circuit Court criminal trial, presided over by Judge Sybert, began on May 24, 1989.

Fraidin moved in limine to exclude evidence concerning Judge Fischer’s order removing him as trustee, as well as any information concerning the merits of the Beneficial or Pacific mortgages. Both motions were denied. The court noted that the State had agreed that it would not introduce the removal order unless the defense first raised the trusteeship issue as a defense. Fraidin declined to take the stand in his own defense.

The jury returned a verdict of guilty. Legal Sufficiency: The Standard of Review The appellant’s brief and especially his reply brief are almost strident in their outrage at the State’s brief for putting a decidedly pro-prosecutorial “spin” or “twist” on evidence which was hotly disputed and subject to arguably diametric interpretations. On the issue of legal sufficiency, however, both the State and the appellant are enjoined to apply just such a “spin.” The slant is required as a matter of law. Of all possible versions of events that would be permitted a fact finder, it is, of course, the most partial one permitted by logic and law which we adopt when assessing the legal sufficiency of the State’s case.

Fact finding impartiality has nothing to do with measuring a prima facie case. This is because the concern is only with whether the State has met its burden of production and not with whether it has met any burden of persuasion. On the issue of persuasion, the “court of last resort,” the petit jury itself, has already and finally determined that in the State’s favor. The limited question before us, therefore, is not whether the evidence should have or probably would have persuaded the majority of fact finders but only whether it possibly could have persuaded any rational fact finder.

With no special reference to the present case, we simply restate the axiomatic truth that the random and far-ranging ²⁴² unpredictability of the fact-finding sweepstakes is such that it accommodates the occasional “long shot” as readily as it embraces the more numerous “favorites.” Assuming then maximum permitted partiality on the part of the fact finder, how far will that carry its beneficiary as a matter of law? That is precisely the question addressed by the issue of legal sufficiency. The conviction must be affirmed if, “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.” (emphasis in original). Jackson v. Virginia, 443 U.S. 307, 319 , 99 S.Ct. 2781, 2789 , 61 L.Ed.2d 560 (1979), rehearing denied, 444 U.S. 890 , 100 S.Ct. 195 , 62 L.Ed.2d 126 (1979).

See also Wilson v. State, 319 Md. 530, 535 , 573 A.2d 831 (1990); Bloodsworth v. State, 307 Md. 164, 167 , 512 A.2d 1056 (1986) ; Cardin v. State, 73 Md.App. 200 , 533 A.2d 928 (1987) , cert. denied, 312 Md. 126 , 538 A.2d 777 (1988), cert. denied, 488 U.S. 827 , 109 S.Ct. 78 , 102 L.Ed.2d 55 (1988); Lane v. State, 60 Md.App. 412, 419 , 483 A.2d 369 (1984), cert. denied, 302 Md. 570 , 489 A.2d 1129 (1985). The test is “whether the evidence shows directly or supports a rational inference of the facts to be proved, from which the trier of fact could fairly be convinced, beyond a reasonable doubt, of the defendant’s guilt of the crime charged.” Wilson v. State, 319 Md. at 535-36 , 573 A.2d 831 . Utilizing that slant, with its unabashed and deliberately built-in partiality, we turn to the issue of the legal sufficiency of the State’s case. Legal Sufficiency of the Evidence From the opening gun, the appellant has bombarded us with an impressive pounding of seemingly heavy legal arguments.

Once one begins, however, the cooler exercise of parsing the artillery barrage into its component parts, much of the initial fury reduces itself to diffuse and not clearly differentiated sound. Legal arguments have been advanced that might have been formidable before the trial court, ²⁴³ judge or jury. Before the very different appellate bastion, however, they are not adequately focused on the precise target of judicial error. Even weighty pronouncements of law need to be reduced to specific and narrow questions such as 1) what issues of fact were submitted, over proper objection, to the jury which should not have been? 2) what precise objections to State’s evidence were made and improperly overruled? 3) what precise defenses were raised or proffered but improperly prohibited? or 4) what precise jury instructions were specifically requested but improperly denied?

Tell us not that the judgment was wrong; point to the page and line where an erroneous ruling occurred. The appellant’s first and major legal argument is entitled, “Mr. Fraidin Was Guilty of No Crime.” It is divided into five sub-arguments. We agree with the State’s suggested rearrangement of the issues in this case that four of the five sub-issues under that first heading, along with two other sub-issues under a subsequent heading, all deal with whether the State’s evidence was legally sufficient to permit Judge Sybert to submit the issue of theft to the jury. The new (effective July 1, 1979) Consolidated Theft Statute, Md.Ann.Code art. 27, §§ 340-344 (1987 Repl.Vol.), has brought together under a single statutory umbrella a number of preexisting theft-related offenses.

Section 341 provides, in pertinent part: “Conduct designated as theft in this subheading constitutes a single crime embracing, among others, the separate crimes heretofore known as larceny, larceny by trick, larceny after trust, embezzlement, false pretenses, shoplifting, and receiving stolen property.” (emphasis supplied). The preexisting crime reflected by the variety of theft before us in this case is false pretenses. The former crime of false pretenses was spelled out in Art. 27, § 140: “Any person who shall by any false pretenses obtain from any other person any chattel, money or valuable security, with intent to defraud any person of the same, ²⁴⁴ shall be guilty of a misdemeanor____” (footnote omitted). In Polisher v. State, 11 Md.App. 555, 560 , 276 A.2d 102 (1971), cert. denied, 262 Md. 749 (1971), cert. denied, 404 U.S. 984 , 92 S.Ct. 449 , 30 L.Ed.2d 368 (1971), Judge Orth thoroughly analyzed the legal elements, most of which are still viable under the new consolidated statute, that constituted the crime of false pretenses: “The false pretense is the crux of the crime.

So the crime is committed when a person: 1) by making a false representation of a past or existing fact; 2) with intent to defraud; and 3) knowledge of its falsity; 4) obtains any chattel, money or valuable security from another; 5) who relies on the false representation; 5 6) to his detriment.” 6 See also Smith v. State, 237 Md. 573 , 207 A.2d 493 (1965). The parallel provision of the supervening statute is § 342(b)(1), which provides, in pertinent part: “A person commits the offense of theft when he willfully or knowingly uses deception to obtain and does obtain control over property of the owner, and; (1) Has the purpose of depriving the owner of the property.” In a jury trial, the only way to raise and to preserve for appellate review the issue of the legal sufficiency of the evidence is to move for a judgment of acquittal on that ground. Under Md.Rule 4-324(a), a defendant is further required to argue precisely the ways in which the evidence should be found wanting and the particular elements of the ²⁴⁵ crime as to which the evidence is deficient. In State v. Lyles, 308 Md. 129, 135 , 517 A.2d 761 (1986), the Court of Appeals held clearly that a defendant is “required to state with particularity all reasons why his motion for judgment of acquittal should be granted.” “Moving for judgment of acquittal on the grounds of insufficiency of the evidence, without argument, does not preserve the issue for appellate review.” Parker v. State, 72 Md.App. 610, 615 , 531 A.2d 1313 (1987).

See also Jordan v. State, 82 Md.App. 225, 244 , 571 A.2d 238 (1990), cert. granted, 320 Md. 312 , 577 A.2d 362 (1990). Because Fraidin put on a defense, the only motion for judgment of acquittal that remains before us is the motion made at the end of the entire case. Except for the limited purpose of reference back to it, Warfield v. State, 315 Md. 474, 487 , 554 A.2d 1238 (1989), the earlier such motion, made at the close of the State’s case, was withdrawn by operation of law. Md.Rule 4-324(c).

In the course of arguing the motion at the end of the entire case, Fraidin affirmatively argued only the adequacy of the State’s evidence to prove an act of deception on his part. He did in addition, however, “renew all the arguments that have previously been made.” Those arguments that had “previously been made” at the end of the State’s case included, in addition to the deception issue, 1) that the State’s proof in court was at variance with the charging document 7 and 2) that Fraidin was acting only as a trustee and thus did not obtain the money in his personal capacity. Our concerns, therefore, in assessing legal sufficiency, are with only two sub-issues: 1) proof of deception and 2) proof of obtaining control. Legal Sufficiency: Proof of Deception In § 340, “Definitions,” the theft statute defines “Deception” as including, inter alia, four types of decep ²⁴⁶ tive action of which Fraidin could have been found guilty in this case, any one of which would suffice for legal sufficiency purposes: “(b)(1) ‘Deception’ means knowingly to: (i) Create or confirm in another an impression which is false and which the offender does not believe to be true; or (ii) Fail to correct a false impression which the offender previously has created or confirmed; or (iii) Prevent another from acquiring information pertinent to the disposition of the property involved; or (iv) Sell or otherwise transfer or encumber property, fail- ing to disclose a lien, adverse claim, or other legal impediment to the enjoyment of the property, whether the impediment is or is not of value or is or is not a matter of official record____” It was Fraidin who moved for the foreclosure sale.

The advertisement for the sale, both as contained in the legal notice itself and as read aloud by the auctioneer, did, to be sure, contain the general language, “ ‘AS IS’ ... subject ... to restrictions of record ... if any” (emphasis supplied). The use of stock language and the inclusion of the modifying phrase “if any,” however, does raise in the mind of the reader or hearer at least the suggestion that perhaps there were no “restrictions of record.” In any event, it is clear that neither in the pre-auction advertising nor at the auction itself did Fraidin disclose the existence of the Beneficial mortgage. Deferring for the moment any issue of an affirmative defense on Fraidin’s part, it was clearly an act of “deception” for him, by the very terms of the statute, to “sell or otherwise transfer or encumber property, failing to disclose a lien, 8 adverse claim, ²⁴⁷ or other legal impediment to the enjoyment of the property, whether the impediment is or is not of value or is or is not a matter of official record.” Indisputably, he failed to disclose the existence of the Beneficial mortgage. Any argument that the possibility that the Beneficial mortgage could have been paid off from existing funds somehow excuses Fraidin from the failure to disclose the mortgage cannot prevail in the face of the statutory language.

The Beneficial mortgage was clearly a “legal impediment to the enjoyment of the property” and the statute required its disclosure regardless of “whether the impediment [was] or [was] not of value.” This failure to disclose the mortgage was itself an adequate predicate for the jury fairly to infer an act of deception on Fraidin’s part. The deception, however, did not stop at that point with the mere failure to disclose. There were acts of deceptive commission as well as acts of deceptive omission. For reasons to be more fully discussed hereinafter, the auction of September 7, 1987 will not be viewed by us as an isolated and self-contained act to be assessed in a vacuum.

It was nonetheless the cresting of a larger pattern of deceptive behavior. The representation made by Fraidin to all of the prospective bidders at the auction, including the ultimately successful bidder Scott, that “clear title is gonna pass today,” would qualify under § 340(b)(l)(i) as another form of criminal deception: “Create or confirm in another an impression which is false and which the offender does not believe to be true.” Fraidin created the impression that the title was unencumbered. That impression was false. Fraidin knew that it was false. ²⁴⁸ Fraidin nonetheless maintains that his statement “Clear title is gonna pass today” could not be the basis of any violation of the theft statute.

He reasons: “As a matter of law, clear title is marketable title. Black’s Law Dictionary at 228 (5th ed. 1979). It is undisputable from the record that Mr. Scott was in fact able to remarket his title to buyers who had a title company protecting them, while the Beneficial lien remained of record, and also while it apparently remained unpaid. By definition, therefore, the title that Mr. Fraidin sold Mr. Scott was marketable, and thus clear title.

Mr. Fraidin was stating no more than the truth.” Fraidin is asserting the ipse dixit that because a seller is somehow able, by one means or another, actually to market the title, the title is thereby “marketable.” 9 As a legal term of art, however, “marketable” means more than that. Clear title, to be sure, means marketable title. Black’s Law Dictionary 228 (5th ed. 1979). In Maryland, a marketable title is one free from encumbrances and from any reasonable doubt as to its validity.

New Freedom Corp. v. Brown, 260 Md. 383, 389 , 272 A.2d 401 (1971); Zulver Realty Co. v. Snyder, 191 Md. 374, 384 , 62 A.2d 276 (1948). Whether a title is marketable is a question of law for the court. Berlin v. Caplan, 211 Md. 333, 341 , 127 A.2d 512 (1956). The title to the property in this case was subject to the Beneficial mortgage when Scott bought the property at the foreclosure sale September 7, 1987, and was still encumbered on December 7, 1987, when Fraidin, as trustee, received the check for $104,064.96.

A mortgage which is not released of record is an encumbrance. Black’s Law Dictionary 473 (5th ed. 1979). The title was not marketable, as a matter of law, because it was not free ²⁴⁹ from encumbrance. New Freedom Corp. v. Brown, 260 Md. at 389 , 272 A.2d 401 .

The property was still encumbered when Scott resold the property in April, 1988. The fact that the purchasers were able to obtain title insurance does not make the title marketable and is, furthermore, irrelevant in light of Fraidin’s explicit assertion that “clear title” would pass on the day of the foreclosure sale. There can be a cloud upon title, notwithstanding the probability that the cloud will ultimately dissipate. In arguing for the judgment of acquittal, Fraidin’s counsel insisted: “With regard to the testimony dealing with clear title, again, it is clear that this matter is still before the Court, that the auditor’s report has yet to be ratified.

And if Beneficial is determined to be entitled to the funds, they will get it. If they’re not entitled to the funds, they’re not gonna get it. But either way, clear title has passed and will continue to pass.” To be sure, the entitlement to the funds in escrow may ultimately be adjudicated and title may ultimately pass and pass again. That, however, does not vindicate Fraidin’s representation of September 7, 1987, that “Clear title is gonna pass today." That representation was a far cry from the very different representation, now urged by Fraidin as an after-the-fact palliative, that the “unclear and clouded title that is gonna pass today will, in the inexorable course of future events, become clearer and less clouded.” The clarity sought by and deceptively offered to the purchaser Scott was as of the moment of the purchase.

The purchaser Scott had every right not to buy into an unanticipated lawsuit. That Scott may have been protected by title insurance no more obliterates the wrong done him than a victim’s anti-burglary insurance would obliterate a burglary. If Scott had received clear title, Beneficial would never have moved, as it signaled its intention of doing in February, 1988, to foreclose on his property. That Scott might have impleaded Fraidin and/or Pacific would not have been a sure guarantee of ultimate success.

The result, moreover, might have remained in doubt for months ²⁵⁰ or even years. At the very least, Scott might have been afflicted with legal expenses, with uncertainty, with a cloud upon his assets, with anxiety, with inconvenience, and with a general nuisance that he might have preferred to avoid and that he might not have risked taking on but for the assurance that he was buying “clear title.” Fraidin’s convoluted reasoning that Scott would have defenses to civil actions that might be brought against him does not erase the criminal deception practiced upon him, assuring him that he would not be subjected to such civil actions. Suggesting, after the fact, ways in which one may clarify unclear title is not the same as conferring clear title in the first instance. The claim made by Fraidin here — that notwithstanding the deception, Scott suffered no actual loss because funds were available to satisfy the undisclosed mortgage — is essentially indistinguishable from one made by the defendant in Lane v. State, 60 Md.App. 412 , 483 A.2d 369 (1984), cert. denied, 302 Md. 570 , 489 A.2d 1129 (1985).

The defendant there had induced the victimized mortgage company (Steed) to make two loans to mortgagors that Steed would not have made but for the false impressions created by the defendant about the financial status of the mortgagors. The defendant there maintained, as did Fraidin here, that the victim suffered no loss because it was adequately protected by alternative means, to wit, deeds of trust adequate to serve as full security: “Appellant relies heavily on the fact that a purchase money deed of trust was transferred to Steed, securing future repayment of the fraudulently obtained loans.” 60 Md.App. at 423 , 483 A.2d 369 . Judge Bishop, in writing for this Court, rejected such a defense, reasoning that the victim had parted with its money because of the false impression deceptively created about the status of the transaction and had not bargained for this alternative avenue of redress: “Steed bargained for, and had a primary right to receive, repayment pursuant to the loan documents. What ²⁵¹ it got was the burdensome, costly and necessarily risky alternative of foreclosure.” (emphasis supplied). 60 Md.App. at 424 , 483 A.2d 369 .

The holding was that the theft by deception was a fait accompli, notwithstanding the fact that the “alternative” might have sufficed to make good the financial loss. In pushing this proposition, Fraidin makes the extreme statement that even if the purchaser Scott had relied upon Fraidin’s implicit representation that there were no liens on the property, the misrepresentation would not have been material. In support of this, Fraidin, in his brief, makes the bold statement: “It has been established since Ivrey v. Karr, 182 Md. 463 [ 34 A.2d 847 ] (1943) that where a mechanism exists to satisfy a non-foreclosing lienholder, the buyer cannot complain of having been misled by the trustee’s failure to mention it.” Further along in his brief, Fraidin again cites Ivrey v. Karr as authority for such a proposition: “In Ivrey , the trustee was held not to have gone below the Wicks [v. Wescott, 59 Md. 270 ] standard though he failed to mention a lien while promising good title — be cause a payment mechanism existed for the lien.” (emphasis supplied). Our readings of Ivrey v. Karr fail to reveal to us any such express discussion or even implicit rationale.

The case involved an exception by the purchaser to the ratification of a foreclosure sale. The thrust of the challenge was that “there was no disclosure by the assignee that the first mortgage was due and demandable.” 182 Md. at 473 , 34 A.2d 847 . The Court of Appeals rejected the challenge and affirmed the ratification of sale — on the exclusive ground that there had been full and adequate disclosure and that there had been no representations that were “in anywise misleading”: “We have concluded from all the evidence in the case that the disclosure, in the advertisement and at the sale, with ²⁵² respect to the status of the first mortgage and the rents, was fair, accurate and not in anywise misleading.” (emphasis supplied). 182 Md. at 474 , 34 A.2d 847 . If the very different principle for which Fraidin cites this case is there, it has been too subtle for us to discern.

After having created the false impression, a legally sufficient act of deception in and of itself, Fraidin arguably compounded the initial deception by further “deception” in two of its other manifestations. Section 340(b)(l)(ii) and (iii) provide that “deception” also means “knowingly to: (ii) Fail to correct a false impression which the offender previously has created or confirmed; or (iii) Prevent another from acquiring information pertinent to the disposition of the property involved.” The highest bidder at a foreclosure auction does not consummate the resulting purchase with a single and decisive act. The purchase is rather a process extending over some period of time and involving several distinct stages. The auction sale took place on September 7, 1987.

It was not until November 20, however, that the Howard County Circuit Court ratified the sale. Even following ratification, the ultimate settlement did not take place until December 4. At any time between September 7 and December 4, Scott was at liberty to withdraw from the transaction if he had learned that he was suffering under a false impression as a result of Fraidin’s deception. During that period, with the contemplated sale not yet wrapped up, Fraidin took pains to prevent Scott and the title company acting on Scott’s behalf from learning that the property was actually encumbered by the Beneficial mortgage.

At the very least, Fraidin had every reason to believe that Scott and the title company were operating under a false impression created by him and he failed to correct that false impression. Land Title issued Scott a title insurance binder indicating that the Beneficial mortgage was unreleased of record. ²⁵³ Mr. Goldberg, the owner of Land Title, testified that it is not at all uncommon to discover paid but unreleased mortgages, as lenders are frequently dilatory in forwarding releases to title companies and title companies assemble releases for recording in groups. The office manager for Land Title, Patricia Horak, testified that her review of the Pacific mortgage, certifying that the Beneficial mortgage had been refinanced, led her to believe that Beneficial had in fact been paid and that the failure to record a release was a mere oversight. Ms. Horak called Fraidin for the explicit purpose of confirming her assumption in that regard.

She communicated to him not only her assumption but the premises upon which it was based, making reference to both the refinancing language of the Pacific mortgage and the tax stamps. The escrow documents had not been recorded in the Land Records and were not discovered by Ms. Horak. Fraidin, in the course of that telephone conversation, was meticulously careful neither to confirm nor to deny Ms. Horak’s conclusions. He was obviously aware, however, of the false impression under which she was laboring.

His deceptive conduct was in failing to correct that false impression. The false impression that there was no outstanding Beneficial mortgage, moreover, was one that he had initially created. However clever he may have imagined himself, his calculated silence spoke volumes in the ears of the law. His deception then progressed from the realm of careful and calculated omission into at least the borderland of commission with their next exchange in the course of that telephone conversation.

Ms. Horak communicated to him her belief that he, as the closing agent on the last refinancing, had possession of the release from Beneficial. When she proposed that Fraidin send her the Beneficial release so the settlement could proceed, Fraidin “agreed” to do so. Fraidin’s present protestation that all he “agreed” to do was to furnish whatever release, if any, might happen to be in his possession without suggesting that there was one is so disingenuous as to beggar belief. ²⁵⁴ When the settlement finally took place on December 4, moreover, Fraidin signed a settlement statement indicating that all of the foreclosure proceeds were payable to him as trustee. There was no deduction for the Beneficial mortgage and no mention that it even existed.

His silence on a critical issue was, again, pregnant. Further evidence that Fraidin was not naively innocent of the false impression he had created and allowed to persist was his callous reaction to a telephone call from Mr. Goldberg in February, 1988. Mr. Goldberg informed him of Beneficial’s intent to foreclose on the mortgage. Mr. Goldberg pointed out that it had been Fraidin’s language in the Pacific mortgage and Fraidin’s subsequent conduct that had led Land Title to believe that the Beneficial mortgage had been satisfied.

Instead of expressing any regret, chagrin, or surprise that his oversight had somehow given rise to such an unfortunate mistake, Fraidin coldly replied, “Get yourself an attorney,” and hung up the phone. That attitude was not, of course, criminal per se. It was nevertheless some evidence of Fraidin’s state of mind with respect to the false impression. Legal Sufficiency: Proof of Obtaining Control Fraidin staunchly maintains that he could not personally have been guilty of theft because he never personally obtained the stolen goods, to wit: the $114,000 that Scott was deceived into transferring.

Fraidin maintains that he acted only as a trustee and was, therefore, acting at all times as an agent of the court. He maintains that the funds coming to him in his capacity of trustee were not for his personal use but for the benefit of the foreclosing Pacific Mortgage Company and possibly various creditors, including Beneficial. He reads that statute, however, too narrowly. The gravamen of theft by deception is “obtaining control by deception.” § 342(b).

Section 340(f)(1), in turn, defines “obtain”: “(f) ‘Obtain ’ means: ²⁵⁵ (1) In relation to property, to bring about a transfer of interest or possession, whether to the offender or to another.” (emphasis supplied). A claim similar to that made by Fraidin here was made by the defendant in Lane v. State, 60 Md.App. 412 , 483 A.2d 369 (1984). The defendant there had engaged in deceptive conduct that induced a mortgage company (Steed) to make two loans: “The jury could have and apparently did conclude that had appellant not engaged in these acts of deception and had Steed been aware of the financial stati of the real purchasers, Steed would not have parted with its money. From this fact, the jury could fairly infer that appellant used deception to obtain control of the property of Steed.” 60 Md.App. at 421 , 483 A.2d 369 .

The defendant there, as Fraidin here, adamantly insisted that he could not have been guilty of theft by deception because he never obtained the money. The money that was the subject of the theft had been obtained by others, the mortgagors themselves who, coincidentally, had every bona fide intention of repaying the loans. Judge Bishop pointed out that the defendant was imparting far too narrow a meaning to the verb “obtain” within the contemplation of the theft statute: “That the checks