Murphy v. State

CATHELL, Judge. David Devoid Murphy, appellant, was convicted in the Circuit Court for Baltimore County of theft over $300 after pleading not guilty on an agreed statement of facts. The court sentenced appellant to five years imprisonment and to pay restitution. This appeal followed.

Appellant argues, in essence, that the trial court abused its discretion by refusing to grant his motion to set aside the verdict. We find merit in appellant’s argument and shall reverse the judgment of the trial court. Facts We need not recount the agreed statement of facts in its entirety. Suffice it to say it established that, over a seven day period in November of 1992, appellant passed eighteen bad checks worth a total of nearly $14,500.

Several of the checks were written on the Texas account of S & D Professional Credit Corporation, were signed by one Shelby Daniels, and were payable to appellant. The rest of the cheeks were written on the Texas account of Delco Properties, were signed by appellant, and were payable to appellant. Appellant cashed all eighteen checks at various branch offices of the Bank of Baltimore. Both of the Texas bank accounts involved, however, were closed before appellant passed the checks.

Based on the statement, the court convicted appellant of theft over $300. At the start of the sentencing hearing, defense counsel moved, apparently pursuant to Md. Rule 4-331(b), to have the verdict set aside. Citing Md.Code (1957, 1992 Repl.Vol.), Art. 27 § 344(b), counsel argued, for the first time, that appellant should not have been convicted of theft under Md.Code (1957, 1992 Repl.Vol.), Art. 27 § 342 since the agreed statement of facts did not establish that appellant committed any deception other than false representations that there were sufficient funds in the drawee bank to cover the checks. The court denied the motion, stating: I think it’s a theft pursuant to a common scheme.

He’s got all kinds of phoney accounts. He has other people signing ¹³⁴ checks that he is depositing into these accounts. I think it puts it out of the realm of bad checks and put[s] it in theft pursuant to common scheme. Discussion As defense counsel pointed out at the hearing below on his motion to set aside the verdict, Art. 27 § 344(b) provides: The obtaining of property or services by a bad check as defined in §§ 140 to 144 shall not be prosecuted as theft as defined in this subheading unless the defendant commits deception as provided in § 342 in addition to any false representation or false representations that there are sufficient funds in the drawee bank to cover the check. [Emphasis added.] We have reviewed the agreed statement of facts and glean no evidence whatsoever of deception other than the implicit false representations that there were sufficient funds in the Texas accounts to cover the checks.

Contrary to the trial court’s suggestion, we know of no authority that would permit courts to disregard the requirement of additional deception if the bad checks are passed pursuant to a “common scheme.” The State urges us to affirm the judgment against appellant on the basis that § 344(b) is in pari materia with Md.Code (1957, 1992 Repl.Vol.) Art. 27 § 144(a). Section 144(a), according to the State, permits the prosecution for theft of any person who passes a bad check but does not commit any