State v. Weems

BARBERA, J. To be convicted of theft, a person must take property belonging to someone else with the intent to permanently deprive the owner of it. Maryland’s consolidated theft statute includes property that is lost, mislaid, or delivered by mistake. See Md.Code (2002, 2012 Repl.Vol.), § 7-104(d) of the Criminal Law Article. 1 Following a bench trial before the Circuit Court for Anne Arundel County, Latresha L. Weems, Respondent, was convicted of theft for cashing a counterfeit check and not returning the money. She appealed the conviction to the Court of Special Appeals, arguing that the evidence was insufficient to sustain her conviction because the State did not prove that she obtained control over the proceeds of the check knowing the money was delivered by mistake.

The Court of Special Appeals agreed and reversed the conviction. We granted the State’s request for a writ of certiorari and, for reasons we shall explain, affirm the judgment of the Court of Special Appeals. I. Respondent went to Anchor Check Cashing in Annapolis on February 17, 2009, in order to cash a check. Since 2008, she had been a customer of the business, which is licensed by the State to cash checks and provide other consumer financial ³³³ services.

The check stated that it was payable to the order of Respondent in the amount of $3,250, drawn from an attorney escrow account at SunTrust Bank in Atlanta, Georgia. An Anchor employee made a photocopy of the check and told Respondent that Anchor would have to place a phone call to verify that there were funds available before giving Respondent the money. Marie Coulter, owner of Anchor Check Cashing, arrived later that same day and examined the check for several hours. Coulter also questioned Respondent about why she had the check and Respondent told Coulter that Respondent’s uncle had given her the check. 2 Coulter called SunTrust Bank, which verified that the check was “good,” and she also called a number provided by Respondent and talked to someone about the check. 3 As a result of that phone call, Coulter testified that she decided to accept the check and release the money to Respondent.

Coulter later submitted the check to Anchor’s bank, Branch Banking and Trust, for payment. Several days later, the bank returned the check to Anchor, having marked it with a “counterfeit” stamp. Coulter called Respondent twice, explaining that the check was counterfeit, that it was a crime to have cashed the check, and that it would be in Respondent’s best interest to return the money. Respondent never returned the money and had no further contact with Anchor. 4 ³³⁴ The State charged Respondent by criminal information with theft of more than $500, uttering a forged document, and possession of a forged document.

The case came on for a bench trial on October 22, 2009. The State called two witnesses, Coulter and her employee. In addition, the State introduced the copy of the check presented by Respondent and records from the firm named on the check indicating that the check was not one of the checks issued by the firm on that date. The trial court found Respondent guilty of theft but acquitted her of the remaining charges.

In rendering its verdict of acquittal on possessing and uttering a forged document, the trial court stated that it was “not convinced beyond a reasonable doubt that [Respondent] necessarily knew that it was a counterfeit check at the time that she tendered it. There is some circumstantial evidence that that might be the case, but did she know it? ... I don’t think the State has proven that she knew it was counterfeit.” The trial court ruled, however, that, under § 7-104(d), Respondent was guilty of theft based on a “mistake as to the nature of the property,” given that she retained the funds after being told the check was counterfeit. The court sentenced Respondent to one year of incarceration, but suspended all of the sentence except for one day that already had been served.

The court also imposed two years of probation and ordered that restitution be paid to Anchor. Respondent appealed to the Court of Special Appeals claiming the evidence was not sufficient to sustain her conviction. Weems v. State, 203 Md.App. 47 , 36 A.3d 977 (2012). Specifically, Respondent argued that § 7-104(d), which states that “a person may not obtain control over property knowing that the property was ... delivered under a mistake as to the identity of the recipient or nature or amount of the property,” required that the State prove Respondent knew the check was counterfeit at the time she presented it to Anchor.

Id. at 53, 36 A.3d 977 . The State disagreed, arguing that the statute applies ³³⁵ whenever a person obtains control of property without knowing of a mistake as to its ownership, but later learns of the rightful owner and decides not to return the property. Id, at 53, 36 A.3d 977 . The Court of Special Appeals noted that, under § 7 — 104(d), it appeared that knowledge of the mistake must coincide with when a person first obtains control of the property.

Id. at 58, 36 A.3d 977 . Given the uncertainty about the General Assembly’s intent regarding when a person must have knowledge of the mistake, the Court reversed Respondent’s conviction. Id. at 58, 61 , 36 A.3d 977 . The Court further held that the State had the burden to prove that Respondent failed “to take reasonable measures to restore the property to the owner,” id. at 59 , 36 A.3d 977 , reasoning that the State had not presented evidence that Respondent remained in possession of the money, and the trial court erred in inferring this fact based on the available evidence, id. at 60-61 , 36 A.3d 977 .

The State filed "with this Court a writ of certiorari to answer the following questions: 1. Are the requirements of § 7-104(d) met if it is shown that a defendant knew that she had obtained property by mistake, learned the identity of the owner, failed to take any measures to restore the property to the owner, and intended to permanently deprive the owner of the property? 2. Was the finder of fact entitled to infer that when [Respondent] — a regular customer of Anchor prior to this incident — learned that she was not entitled to the funds, and yet still refused to return them, she failed to take “reasonable measures” to return the funds? We granted the petition.

State v. Weems, 426 Md. 427 , 44 A.3d 421 (2012). Because we affirm the Court of Special Appeals and answer “no” to the first question, we do not address the second question.

II

The State argues that the Court of Special Appeals erred in its interpretation of § 7-104(d) by placing undue ³³⁶ emphasis on the statute’s use of the “present-tense” version of the word “obtain” in the language “may not obtain control over property knowing that the property was lost, mislaid, or was delivered under a mistake.” The State submits that the intermediate appellate court ignored the General Assembly’s intent in enacting the consolidated theft statute, which was to eliminate the common law requirement that a person who received property improperly was guilty of theft only if the person knew at the time of receipt that the property was lost, mislaid, or delivered by mistake. The State contends that a person may obtain property without knowing it was lost, mislaid, or delivered under a mistake and still violate the statute. The State claims that the Court’s interpretation renders portions of § 7-104(d) nugatory. The State points to § 7-104(d)(1), which applies to a person who “knows or learns the identity of the owner ... or learns of a reasonable method of identifying the owner” as evidence of the General Assembly’s intent to apply the statute to those who learn property was lost, mislaid, or delivered by mistake and develop a larcenous intent to steal it after taking possession of the property.

Additionally, the State notes that § 7-104(d)(3) applies to a person who “intends to deprive the owner permanently of the use or benefit of the property when the person obtains the property or at a later time.” The State argues that this subsection must be read in context with the continuing obligations of subsections 1 and 2 that require a person to take reasonable measures to restore property to an owner once learning of the owner’s identity. The State adds that, if the statute only targeted people who knew at the time that they received property that it was wrongful, there would be no need for the continuing obligation to identify the owner, and restoring the property would be irrelevant. The State points to comments from the drafters of Maryland’s consolidated theft statute in support of the notion that the legislature wished to change the common law and impose criminal liability on those who develop an intent to steal after receiving lost, mislaid, or misdelivered property. The State ³³⁷ additionally notes that § 7-102(b) defines “knowingly” as the state of mind “when the person is aware of the conduct or that the circumstance exists.” The State claims that Respondent had the requisite knowledge as soon as she was informed that the check was counterfeit.

In the State’s view, Respondent could no longer fall back on an affirmative defense of good faith once she was made aware of the check’s fraudulent status and decided to keep the money. Respondent, not surprisingly, agrees with the rationale and holding of the Court of Special Appeals.

III

We rely on the often-cited rules of statutory interpretation in construing the requirements of § 7-104(d): The cardinal rule of statutory interpretation is to ascertain and effectuate the real and actual intent of the Legislature. A court’s primary goal in interpreting statutory language is to discern the legislative purpose, the ends to be accomplished, or the evils to be remedied by the statutory provision under scrutiny. To ascertain the intent of the General Assembly, we begin with the normal, plain meaning of the statute. If the language of the statute is unambiguous and clearly consistent with the statute’s apparent purpose, our inquiry as to the legislative intent ends ordinarily and we apply the statute as written without resort to other rules of construction.

We, however, do not read statutory language in a vacuum, nor do we confine strictly our interpretation of a statute’s plain language to the isolated section alone. Rather, the plain language must be viewed within the context of the statutory scheme to which it belongs, considering the purpose, aim, or policy of the Legislature in enacting the statute. ³³⁸ Gardner v. State, 420 Md. 1, 8-9 , 20 A.3d 801 (2011) (quoting State v. Johnson, 415 Md. 413, 421 , 2 A.3d 368 (2010) (internal quotation marks and citations omitted)). It is with this guidance in place that we look to the history and purpose behind Maryland’s consolidated theft statute. The General Assembly enacted the consolidated theft statute in 1978, combining what were previously seven separate larceny offenses into the one crime of theft. 5 Kelley v. State, 402 Md. 745, 751 , 939 A.2d 149 (2008).

In doing so, the legislature adopted the recommendations of its own Joint Subcommittee on Theft Related Offenses, formed to study the issue. Id. The subcommittee’s stated intention was to address the “unwieldy and in some cases unintelligible body of statutory and case law” that had developed over the past several hundred years because larceny was divided into multiple categories. Joint Subcommittee on Theft Related Offenses, Revision of Maryland Theft Laws and Bad Check Laws 1 (1978).

The result of the subcommittee’s work was Maryland Code (1957, 1982 Repl.Vol.), Article 27, § 342(d), which was, in pertinent part, identical in substance to today’s § 7-104(d): (d) Obtaining control of lost, mislaid or mistakenly delivered property. — A person commits the offense of theft when he obtains control over property of another which he knows to have been lost or mislaid, or to have been delivered under a mistake as to the identity of the recipient or nature or amount of the property____ In commentary to Article 27, § 342(d), the subcommittee elaborated on property stolen after it has been lost, mislaid, or delivered by mistake: It was a crime at common law to deprive the owner of lost property of possession of that property if the finder of the lost property formulated the intent to deprive at the time he found the property. It was reasoned that in order for there ³³⁹ to be a larceny at common law, there must be a trespatory taking. In order to avoid this fiction of the common law which requires a nebulous determination of whether there was an intent to deprive at the time the property was found, it was decided that an intent which is formulated at any time with a purpose of depriving the rightful owner of lost, mislaid, or misdelivered property is sufficient to constitute the crime of theft. However, in addition to this intent to deprive, the finder must know the identity of the owner or be aware of a reasonable method of identifying the owner ... and fail to take reasonable measures to restore the property to the owner.

Joint Subcommittee on Theft Related Offenses, Revision of Maryland Theft Laws and Bad Check Laws 42 (1978). In enacting a consolidated theft statute, the legislature followed the lead of the Model Penal Code. In § 223.5, “Theft of Property Lost, Mislaid, or Delivered by Mistake,” the authors state: A person who comes into control of property of another that he knows to have been lost, mislaid, or delivered under a mistake as to the nature or amount of the property or the identity of the recipient is guilty of theft if, with purpose to deprive the owner thereof, he fails to take reasonable measures to restore the property to a person entitled to have it. American Law Institute, Model Penal Code and Commentaries § 223.5 (1985).

The commentary to § 223.5 notes that the emphasis of this change in the law is away from “an initial fraudulent intent” and onto “a purpose to deprive accompanied by the failure to take reasonable measures to restore.” Id. At least one legal commentator has interpreted this provision as imputing criminal liability no matter when a person learns that property he or she obtained was lost, mislaid, or mistakenly delivered: “[N]othing depends upon when he discovers the mistake or when he decides to misappropriate the proper ³⁴⁰ ty. If he does not learn of the mistake until after he takes delivery, or (if he learns on delivery) if he postpones his decision to steal, he is nonetheless guilty when he fails to take reasonable steps to restore the property.” Wayne R. LaFave, Criminal Law 979 n. 56 (5th ed.2010). The subcommittee notes make clear that Maryland lawmakers sought to expand the common law notion of larceny to encompass situations in which a person acquires lost, mislaid, or mistakenly delivered property and later forms the intent to steal it.

Indeed, a plain reading of § 7-104(d) supports this notion, as subsection (d)(8) states that intent to permanently deprive the owner of the property can occur “when the person obtains the property or at a later time.” (Emphasis added). Not as clear is whether a person must have the knowledge that the property is lost, mislaid, or mistakenly delivered at the time he or she obtains the property. Subsection (d)(1) refers to a person who “knows or learns the identity of the owner or knows, is aware of, or learns of a reasonable method of identifying the owner.” (Emphasis added). This language