State v. Manion

⁴²³ GREENE, J. Essentially, this case requires us to consider, as we did in State v. Coleman, 423 Md. 666 , 33 A.3d 468 (2011), the circumstances under which the breach of a residential construction or remodeling contract rises to the level of criminal conduct. We must determine whether the evidence adduced at trial concerning Respondent, Christopher David Manion’s (“Manion”) intent was sufficient to sustain a conviction for theft by deception under Md.Code (2002, 2012 Repl.Vol., 2014 Supp.), § 7~104(b) of the Criminal Law Article (“Crim. Law”). 1 In doing so, this Court recognizes the need to ensure the sufficiency of the evidence and emphasizes the deference to be accorded to the trier of fact in weighing that evidence. FACTUAL AND PROCEDURAL HISTORY Following a bench trial in the Circuit Court for Charles County, Manion was convicted of five counts of theft by deception and two counts of conspiracy to commit theft by deception, and sentenced to a term of sixty-five years, thirty years suspended.

Manion’s convictions stem from various construction and remodeling contracts entered into between 2009 and 2011 with several homeowners. Murphy Contract According to the testimony and other evidence presented at trial, Manion entered into a contract with Sue and Michael Murphy (the “Murphys”) in August, 2009, to perform siding and window work on their home. Prior to being hired, Manion provided the Murphys with a piece of paper purport ⁴²⁴ edly containing a home remodeler’s license number. 2 Manion, however, had no such license. To be sure, the contract itself did not contain a license number.

After entering into the contract, the Murphys issued Man-ion’s company, Comfort Construction, a check for $5,000 as an initial payment. Manion claimed shortly thereafter that the bank placed a ten-day hold on the check, and requested that the Murphys issue a second check for $5,000 in Manion’s name personally. 3 Records produced at trial confirmed that Manion cashed both checks on the same day. Moreover, the Murphys testified that, according to bank records, no such hold existed. Although work was set to begin in September, 2009, no work was performed and no materials were delivered.

Man-ion offered several excuses, which the trial court discredited as unconvincing, for his failure to perform. Manion contacted the Murphys on the date that the materials were to arrive and claimed that the delivery truck driver was involved in a horrific automobile accident and had been killed. Manion later informed the Murphys that he needed to leave the country to attend a funeral for the delivery driver. Manion was not heard from again until sometime in 2010.

After the Murphys’ repeated attempts to contact Manion, he refunded the Murphys $1,300 of the $10,000 owed in late 2010. The Murphys made several attempts to obtain a full refund. Ultimately, communications stopped after Manion’s phone was disconnected. ⁴²⁵ Lake Contract Sharon and Kenneth Lake (the “Lakes”) hired Manion in September, 2011, to re-roof their home. The contract entered into between the Lakes and Manion stated that Manion was “licensed, bonded, & insured,” each assertion being false.

Despite having paid Manion a total of $3,400, no work was performed and no materials were delivered. The delivery truck, containing the roofing materials Manion claimed would arrive, never showed. Over the next couple of weeks the Lakes attempted, on several occasions, to contact Manion concerning his failure to perform. Similar to the Murphys, the Lakes were given several excuses as to why Manion was unavailable, including that he was out-of-state or that a family member was sick and needed to be visited.

Manion ultimately stopped returning the Lakes’ calls. The week before trial, a representative of Manion came to the Lakes’ house and offered them a refund of the money, which they accepted only after providing their testimony at trial in this case. James Contract Manion contacted Clovia and Walter James (the “Jameses”), having previously performed work on their home, looking for work in February, 2011. When the Jameses informed Manion that they had no need for construction work, but were in need of an electrician, Manion falsely claimed to be a licensed electrician as well.

The Jameses ultimately contracted with Manion to replace an electrical box for $710. The following month, the Jameses also hired Manion to perform bathroom renovations. Manion’s contracts stated that he was “licensed, bonded, & insured,” which he was not. As part of the bathroom renovation project, the Jameses accompanied Man-ion on a trip to Lowe’s Home Improvement Store in order to select materials that Manion claimed he would order, and paid Manion $1,094 for the materials in advance.

The Jameses also split the cost of a dumpster to be used during the renovation ⁴²⁶ and paid Manion an additional $850 to use the dumpster themselves. 4 Despite having paid Manion, no work was started, much less completed, and no materials, or the dumpster, were delivered. The Jameses attempted repeatedly to contact Manion after Manion failed to perform. Manion provided the Jameses with numerous excuses for his failures. Manion, for instance, claimed to have ordered the wrong electrical box and that it needed to be reordered, that the dumpster could not be delivered because the Jameses’ driveway was blocked, that he was unavailable because he needed to pick up his daughter from school, and that his father passed away and he needed to attend the funeral.

Manion sporadically contacted the James-es about a refund and ultimately offered the Jameses a refund the weekend before his trial was to start. Harsha Contract Geraldine Harsha (“Harsha”) hired Manion in March, 2011, to perform siding and roofing work on her house for $6,071.92. In addition to Manion’s oral representation that he was a licensed contractor, the contract with Harsha stated falsely that Manion was “licensed, bonded, & insured.” Once again, Manion performed no work and failed to deliver any materials. When the work did not begin, Manion resorted to his usual excuses, including that a family member died and he needed to attend a funeral, or that he was unable to deliver materials because Harsha’s driveway was blocked, despite being told that the cars could be moved.

The week prior to trial, Harsha was offered a refund of her money for the first time. Russell Contract Between September, 2009, and December, 2011, Pat and Frank Russell (the “Russells”) hired Manion, along with Man-ion’s partner Albert Styles (“Styles”), to perform an extensive list of renovations throughout their home. Indeed, the projects included, among other things: renovating the master ⁴²⁷ bathroom, adding a cathedral ceiling in the master bedroom, installing hardwood flooring throughout several areas of the home, replacing fixtures and remodeling the kitchen, replacing windows and doors throughout the home, remodeling the deck, installing a stone facade, paving the driveway, and extending the garage. Although Manion performed a significant amount of work, according to the testimony of Styles, nearly $150,000 of $350,000 paid by the Russells represents work and materials not performed or delivered.

Manion and Styles claimed to have a business, “D & M Construction,” (“D & M”) in whose name the contracts were made. The vast majority of the contracts stated that the business was “licensed, bonded, & insured.” Despite representing themselves as owning D & M, the address listed for the business does not exist and there is no record that D & M has ever registered with the State Department of Assessments and Taxation (“SDAT”). Manion and Styles later contracted under the name “Built-Tight Construction,” which was also unregistered and unlicensed. When the Russells asked Manion about his license status, he referred them to the contracts which stated “licensed, bonded, & insured.” At trial, Styles testified that he and Manion would request and cash the Russells’ checks to buy materials immediately, even if the materials did not require payment at that time.

Styles also testified that certain materials were never ordered, and that some checks were used to pay Styles’s personal bills. Although Manion was responsible for obtaining building permits necessary for construction, he failed to do so. Indeed, permits were not obtained until the Russells themselves acquired the permits roughly one year after certain projects had met their target completion deadline. Towards the end of 2011, the Russells requested that Man-ion begin storing materials in their shed, to which only the Russells and Manion had a key.

Manion informed the Russells that he placed tiles in the outbuilding for the bathroom renovations. When the Russells attempted to gain access to their outbuilding, their key did not work and they were forced ⁴²⁸ to cut the lock. No tiles were found inside, however. During this time the Russells also rented a Personal On Demand Storage (PODS) unit through an agreement with Manion.

Under this agreement, the Russells would pay rental fees for three months, after which time Manion and Styles would assume all storage costs. After roughly two and half months, the PODS unit, along with all of the Russells’ personal belongings inside, had been removed. Manion informed the Russells that he discovered that the PODS Company had incorrectly retrieved the storage unit and that Manion would be able to recover the Russells’ possessions that had been left inside for storage. Soon thereafter, Manion represented that he had recovered the Russells’ possessions and was storing them at his own storage facility.

The Russells did not recover any of the property that had been stored inside the PODS unit. With respect to the driveway repaving work, Manion informed the Russells, having been unable to perform, that he would place all money relating to the project in escrow. Of the $9,600 he claimed to put in escrow, the State produced accounting records showing that Manion only deposited $1,800. Of the $1,800, Manion used $1,000 personally to obtain a lawyer in a matter unrelated to the Russells.

Moreover, according to the testimony of several subcontractors, Manion failed to pay them for work performed. In addition, on several occasions, Manion failed to hire the necessary subcontractors. The Russells testified that they felt trapped in their situation with Manion and Styles, but made the decision to terminate Manion and Styles in late 2011. The Russells were given an extensive set of excuses for Manion’s lack of performance throughout the two year period.

Among the excuses, Man-ion’s unfortunate predicament included: his grandmother breaking a hip; his father, a former alcoholic, falling off the wagon; his mother, who was bipolar, failing to take medication; that his grandmother in Canada died and he needed to attend the funeral; his mom and dad’s basement flooding; and taking someone to the hospital for a spider bite. In addition, Manion claimed to have been involved in a car accident, which ⁴²⁹ injured his foot and required a hospital visit. According to the Russells’ testimony, however, the towing company Manion purported to use had no records of ever towing Manion’s car. Manion also claimed that the steel beams that the Russells purchased to be used during construction for structural support could not be delivered because the steel supplier, Bay Metals, the business Manion’s “metal guy” worked at, could not get up their driveway.

According to the testimony of the owner of Bay Metals, the company has never worked with or taken any orders from Manion or Manion’s purported businesses. Furthermore, Manion claimed, at one point, to have contracted the measles or chickenpox during an alleged outbreak in southern Maryland, and according to the testimony of the Russells, was told by his doctors “that he needed to spend the week in bed.” 5 After receiving Manion’s message, Mr. Russell “later called [Manion] and confronted him ... at [a local bar,] his reaction was [ ] that he was angry with [Mr. Russell] and the only thing he wanted to know was who had told [Mr. Russell] [that he was at the bar].” After this confrontation Manion requested a meeting with the Russells during which he indicated he was an alcoholic and needed time to become sober. The Russells decided to terminate Manion after learning he was drinking at a local bar an hour after this meeting. 6 As stated above, roughly $150,000 of the more than $350,000 paid by the time of termination represents work not performed and materials not delivered. Procedural History Following a bench trial, Manion was convicted of five counts of theft by deception, in violation of § 7-104(b) of the Criminal Law Article, and two counts of conspiracy, and sentenced to sixty-five years of incarceration, with thirty years suspended.

In an unreported opinion, the Court of Special Appeals re ⁴³⁰ versed, concluding that “there is insufficient evidence to support a reasonable inference that [Manion] had the specific intent to commit theft at the time he obtained monies.” On the State’s request, we granted certiorari, State v. Manion, 439 Md. 327 , 96 A.3d 143 (2014), to answer the following question, which we have rephrased: 7 Did the Court of Special Appeals erroneously determine that the evidence adduced at trial concerning defendant’s intent to deprive homeowners of their property was legally insufficient to sustain a conviction for theft by deception? For the reasons explained below, we shall answer in the affirmative and reverse the judgment of the Court of Special Appeals. In doing so, we take care to distinguish the instant case, in which there is sufficient circumstantial evidence upon which the trier of fact could infer reasonably that Manion intended to deprive each homeowner of their property by deception, from cases in which jurors, through the want of direct or circumstantial evidence, are left to speculate entirely as to the accused’s criminal intent at the time the criminal defendant obtained control over the homeowners’ money or property. DISCUSSION Standard of Review It is the responsibility of the appellate court, in assessing the sufficiency of the evidence to sustain a criminal conviction, to determine “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.” Taylor v. State, 346 Md. 452, 457 , 697 A.2d 462, 464 (1997) (emphasis in original) (quoting Jackson v. ⁴³¹ Virginia, 443 U.S. 307, 319 , 99 S.Ct. 2781, 2789 , 61 L.Ed.2d 560, 573 (1979)). “[0]ur concern is only whether the verdict was supported by sufficient evidence, direct or circumstantial, which could fairly convince a trier of fact of the defendant’s guilt of the offenses charged beyond a reasonable doubt.” Taylor, 346 Md. at 457 , 697 A.2d at 465 .

Making this determination “does not require [the appellate] court to ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’ ” Dawson v. State, 329 Md. 275, 281 , 619 A.2d 111, 114 (1993) (citation omitted). Indeed, “we are mindful of the respective roles of the [appellate] court and the [trier of fact]; it is the [trier of fact’s] task, not the court’s, to measure the weight of the evidence and to judge the credibility of witnesses.” Id. The appellate court gives deference to “a trial judge’s or a jury’s ability to choose among differing inferences that might possibly be made from a factual situation[.]” State v. Smith, 374 Md. 527, 534 , 823 A.2d 664, 668 (2003). “We do not second-guess the [trier of fact’s] determination where there are competing rational inferences available.” Smith v. State, 415 Md. 174, 183 , 999 A.2d 986, 991 (2010). It is simply not the province of the appellate court to determine “whether the [trier of fact] could have drawn other inferences from the evidence, refused to draw inferences, or whether we would have drawn different inferences from the evidence.” Smith, 415 Md. at 184 , 999 A.2d at 991 .

Such deference is accorded, in part, because it is the trier of fact, and not the appellate court, that possesses a better opportunity to view the evidence presented first-hand, including the demeanor-based evidence of the witnesses, which weighs on their credibility. Walker v. State, 432 Md. 587, 614 , 69 A.3d 1066, 1082 (2013). In other words, “when evaluating the sufficiency of the evidence in a non-jury trial, the judgment of the trial court will not be set aside on the evidence unless clearly erroneous[.]” State v. Raines, 326 Md. 582, 589 , 606 A.2d 265, 268 (1992). We apply this standard “to all criminal cases, including those resting upon circumstantial evidence, since, general ⁴³² ly, proof of guilt [beyond a reasonable doubt] based in whole or in part on circumstantial evidence is no different from proof of guilt based on direct eyewitness accounts.” Smith, 374 Md. at 534 , 823 A.2d at 668 .

In other words, similar to instances involving the presentation of direct evidence, where the determination of the accused’s guilt is formed entirely upon the basis of circumstantial evidence, such evidence must permit the trier of fact to infer guilt beyond a reasonable doubt, and must not rest solely upon inferences amounting to “mere speculation or conjecture.” Smith, 415 Md. at 185 , 999 A.2d at 992 . Theft by Deception In the present case, this Court must determine whether the State produced sufficient evidence to support Manion’s conviction for theft by deception under § 7 — 104(b) of the Criminal Law Article. As Judge Charles E. Moylan, Jr. writing for the Court of Special Appeals explained, this provision falls under the purview of the Consolidated Theft Statute, which “brought together under a single statutory umbrella a number of preexisting theft-related offenses [including larceny, embezzlement, false pretenses, shoplifting, and receiving stolen property].” Fraidin v. State, 85 Md.App. 231, 243 , 583 A.2d 1065, 1071 (1991). “The purpose of the [Consolidated Theft Statute] [was] to avoid the subtle distinctions that existed and had to be alleged and proved to establish the separate crimes under the former law.” Craddock v. State, 64 Md.App. 269, 277 , 494 A.2d 971, 975 (1985). See also State v. Burroughs, 333 Md. 614, 623 , 636 A.2d 1009, 1014 (1994) (“A return to the era of arcane distinctions [between the separate crimes] that once existed is hardly an inviting prospect, and would seem to be inconsistent with the intent of the legislature expressed in the enactment of the consolidated theft statute.”).

Under § 7-104(b) of the Criminal Law Article, theft by deception, which served to replace the preexisting crime of false pretenses, see Fraidin, 85 Md.App. at 243-44 , 583 A.2d at 1071 -72: ⁴³³ A person may not obtain[ 8 ] control over property by willfully or knowingly using deception[ 9 ], if the person: (1) intends to deprive the owner of the property; (2) willfully or knowingly uses, conceals, or abandons the property in a manner that deprives the owner of the property; or (3) uses, conceals, or abandons the property knowing the use, concealment, or abandonment probably will deprive the owner of the property. The offender deprives another of their property, under the statute, where the property is withheld: (1) permanently; (2) for a period that results in the appropriation of a part of the property’s value; (3) with the purpose to restore it only on payment of a reward or other compensation; or (4) to dispose of the property or use or deal "with the property in a manner that makes it unlikely that the owner will recover it. Crim. Law § 7 — 101(c).

As explained previously by this Court in State v. Coleman, 423 Md. 666 , 33 A.3d 468 (2011), theft by deception ⁴³⁴ is a specific intent crime requiring both an intent to deceive and an intent to deprive. 423 Md. at 673 , 33 A.3d at 472 (“The requirement of intentional deprivation makes theft a specific intent crime.”). See also Mitchell v. State, 363 Md. 130, 146 , 767 A.2d 844, 853 (2001) (explaining that “conspiracy is necessarily a specific intent crime; there must exist the specific intent to join with another person in the accomplishment of an unlawful purpose or lawful purpose by unlawful means”). Given the subjective nature of intent, the trier of fact may consider the facts and circumstances of the particular case when making an inference as to the defendant’s intent. Titus v. State, 423 Md. 548, 564 , 32 A.3d 44, 54 (2011) (explaining that “the trier of fact can infer from a defendant’s actions and the surrounding circumstances whether the defendant had the requisite intent”); Bible v. State, 411 Md. 138, 157 , 982 A.2d 348, 359 (2009) (“Because ‘intent is subjective and, without the cooperation of the accused, cannot be directly and objectively proven, its presence must be shown by established facts which permit a proper inference of its existence.’ ”) (quoting State v. Smith, 374 Md. 527, 536 , 823 A.2d 664, 669 (2003)); State v. Raines, 326 Md. 582, 591 , 606 A.2d 265, 269 (1992) (“[Ijntent must be determined by a consideration of the accused’s acts, conduct and words.”).

The defendant’s intent to deprive, “may be inferred from acts occurring subsequent to the commission of the alleged crime.” Coleman, 423 Md. at 674 , 33 A.3d at 472 . See also U.S. v. Latney, 108 F.3d 1446, 1449-50 (D.C.Cir.1997) (“[L]ater acts are most likely to show the accused’s intent when ‘they are fairly recent and in some significant way connected with prior material events[.]’ ”) (citation omitted). Where the defendant is charged with theft by deception, the statute makes clear, however, that “an offender’s intention or knowledge that a promise would not be performed may not be established by or inferred solely from the fact that the promise was not performed.” Crim. Law § 7-104(f) (emphasis added).

To be sure, this is not to suggest that a conviction for theft by deception may never be based, in part, upon the defendant’s failure to perform, so long as other evidence ⁴³⁵ sufficient to permit the trier of fact to ascertain the defendant’s intent exists. An intent to deprive does not lie where the defendant has a right to the property. Crim. Law § 7-lOKj) (defining “property of another” as “property in which a person other than the offender has an interest that the offender does not have the authority to defeat or impair, even though the offender also may have an interest in the property”).

Coleman, 423 Md. at 675 , 33 A.3d at 473 . Moreover, a defendant’s intent to commit theft may be negated by an honest belief in the right to the property. As explained by this Court in Coleman : The claim of right defense springs from the notion that in cases of common law larceny the defendant must have had an intent to permanently deprive the owner of the property. If the defendant acted under a mistake as to his right to deal with the property, he could not be guilty of larceny.

Similarly, if the defendant can produce evidence that he was acting under an honest belief he had a “claim of right[,]” this will be weighed by the trier of the facts in resolving the issue of whether the defendant possessed the requisite mens rea to commit the offense of theft. 423 Md. at 676, 33 A.3d at 473 (emphasis in original) (quoting Sibert v. State, 301 Md. 141, 147 , 482 A.2d 483, 486 (1984)). The State requests that this Court reverse the judgment of the intermediate appellate court and conclude that the evidence adduced at trial concerning Manion’s intent was sufficient to sustain his conviction for theft by deception. Apart from Manion’s failure to perform, or complete, the various construction projects, the State notes: [Manion] lied about his licensure with the State of Maryland; he gave various false excuses[ 10 ] as to why he could ⁴³⁶ not perform; he contracted using companies not registered with the SDAT; and he insisted on being paid either in cash or checks written to him personally which, in the case of the Murphys he cashed immediately; and he refunded the Lakes, Jameses, and Geraldine Harsha, only on the eve of his trial at which he expected each to testify against him. The State avers that, when taken together, the evidence was sufficient to establish, beyond a reasonable doubt,