Hobby v. State

Ronald Alexander Hobby v. State of Maryland, No. 33, September Term, 2013
CRIMINAL LAW – THEFT – PROPERTY – DECEPTION – SUFFICIENCY OF
THE EVIDENCE – Court of Appeals held that evidence was sufficient to support
conviction for theft where defendant occupies or possesses home for period of time
without payment to lawful owner and without authorization or consent of lawful owner,
and where such occupation or possession is obtained through deception. Court of
Appeals held that consolidated theft statute does not require asportation of property or
proof of actual deprivation.
CRIMINAL LAW – THEFT – VALUE – Court of Appeals held that where property
that is subject of theft is occupancy of house, value is to be determined based on fair
market rental value of house.
CRIMINAL LAW – BURGLARY – DWELLING – BREAKING – SUFFICIENCY
OF THE EVIDENCE – Court of Appeals held that evidence was sufficient to support
conviction for first-degree burglary where home vacant for period of months retained its
character as a dwelling and where use of keys and garage door opener, obtained through
illegitimate means, to gain access to home constituted breaking.
Circuit Court for Charles County
Case No. 08-K-10-001027
Argued: December 5, 2013
IN THE COURT OF APPEALS
OF MARYLAND
No. 33
September Term, 2013
______________________________________
RONALD ALEXANDER HOBBY
v.
STATE OF MARYLAND
______________________________________
Barbera, C.J.,
Harrell
Greene
Adkins
McDonald
Watts
McAuliffe, John (Retired,
Specially Assigned),
JJ.
______________________________________
Opinion by Watts, J.
______________________________________
Filed: January 24, 2014
Ronald Alexander Hobby (“Petitioner”) was charged with, and convicted of, theft
of property valued in excess of $100,000 and related offenses arising out of his
unauthorized occupancy of a home for a period of approximately seven months. We
must decide whether the evidence was sufficient to support the convictions for: (I) theft;
(II) theft of property valued in excess of $100,000; and (III) first-degree burglary.
For the below reasons, we hold that: (I) the evidence was sufficient to support a
conviction for theft; (II) the evidence was insufficient to support a conviction for theft of
property valued in excess of $100,000, but was sufficient to support a conviction for theft
of property having a value of at least $10,000, but less than $100,000; and (III) the
evidence was sufficient to support a conviction for first-degree burglary.
BACKGROUND
Petitioner was indicted in the Circuit Court for Charles County on five charges:
theft of property valued in excess of $100,000, forgery, uttering a false document,
identity fraud, and first-degree burglary.
From March 23 to March 24, 2011, the circuit court conducted a jury trial at which
the following evidence was adduced. In 2007, Dr. Coryse Brathwaite had a single-family
dwelling built at 2742 Kirk Drive (“the property”) in Waldorf. Brathwaite had a
mortgage on the home in the amount of approximately $900,000, and owed the builder an
additional $500,000. Brathwaite’s monthly mortgage payment was approximately
$6,000, and her monthly payment to the builder was between $2,500 and $3,500.
Brathwaite resided in the home from June 2007 until July 2009, at which point she
moved out due to “financial difficult[ies]” and offered the property for sale with a realtor
from Coldwell Banker. At the time that Brathwaite moved out, the property was in
“[e]xcellent condition” and “[e]verything was intact”; all of the doors and windows were
closed and secured.
Brathwaite did not know Petitioner and did not authorize him to occupy the
property. Brathwaite learned of an alleged lease between herself and Petitioner 1 after
receiving a letter from the successful foreclosure bidder Severn Savings Bank FSB
(“Severn Bank”), which alleged that she had been using the property to collect rent
money that belonged to Severn Bank. Upon receiving the letter, Brathwaite telephoned
Severn Bank to advise that she did not know of any lease involving the property.
Brathwaite testified that the signature on the lease was not hers; that she never signed any
lease involving the property; and that Petitioner did not have authority or permission to
put her name on the lease. Brathwaite did not know an individual named “Derrick
Williams” 2 and denied giving anyone named Derrick Williams permission to put her
information on a lease.
Kimberly Washington, a real estate agent, identified Petitioner as a former client
who had used her services to list his home in Fort Washington, Maryland, for sale in
2008. After expiration of the listing agreement, the Fort Washington home was
eventually sold at foreclosure. Thereafter, Petitioner contacted Washington regarding
1
On its face, the lease agreement purported to be a lease of 2742 Kirk Drive
between Brathwaite and Petitioner.
2
According to Petitioner’s wife, an individual named Derrick Williams, who
described himself as working for a property management company and representing the
owner of 2742 Kirk Drive, arranged the lease of the property.
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2742 Kirk Drive, which was for sale, and advised that he and his wife were interested in
purchasing the property. Washington prepared a sales contract for Petitioner and his
wife, offering $450,000 to purchase the home. Severn Bank rejected the offer.
According to Washington, after informing Petitioner that the offer had been rejected, she
had no contact with him about the property until she received a telephone call from a
detective.
Andrea Colander, general counsel and vice president of Severn Bank, testified
that on July 26, 2010, the property located at 2742 Kirk Drive was sold at foreclosure
auction to Severn Bank. After the foreclosure sale, Colander began working on behalf of
Severn Bank to take possession of the property, and was notified that the property was
occupied by a tenant pursuant to a lease agreement. Colander obtained a copy of the
purported lease. Believing the lease to be legitimate, Colander filed a motion for
possession of the property with the circuit court and served Petitioner with a copy of the
motion.
Colander noticed that the purported lease did not contain a provision designating a
rental amount and that the lease term began after foreclosure proceedings had been
initiated. Thus, Colander filed an “amended possessory order,” notifying the circuit court
of the above. Colander believed that Petitioner and Brathwaite “were in cahoots to try to
pull a fast one on the bank.” On August 4, 2010, Colander wrote letters to Petitioner and
Brathwaite alleging fraud. On August 5, 2010, Brathwaite telephoned Colander, denied
the existence of any lease, and told Colander that she did not know Petitioner. As a
result, Colander notified the sheriff’s office that she believed there was a “squatter” at
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2742 Kirk Drive. Colander filed an amended motion with the circuit court, stating that
the purported lease for 2742 Kirk Drive was a “fraudulent lease[.]”
On September 29, 2010, Severn Bank obtained a writ of possession for the
property, and Colander contacted the sheriff’s office to execute the writ. According to
Colander, Severn Bank’s re-sale of the property was “delayed by a number of months” as
a result of issues arising out of Petitioner’s tenancy; namely, Severn Bank was unable to
take action or to show the property to potential purchasers until after Petitioner had been
evicted and the property had been cleaned and repaired. Approximately forty-five days
before the start of Petitioner’s trial, Severn Bank sold the property for $650,000.
According to Colander, Petitioner left the property in late September or early October
2010.
Nathaniel Swinton lived next door to 2742 Kirk Drive and met Petitioner in late
February or early March 2010. Swinton testified that Petitioner resided at 2742 Kirk
Drive for approximately six months.
On August 26, 2010, the lead investigator in the case, Detective Elizabeth Clark of
the Charles County Sheriff’s Office, met with Petitioner at 2742 Kirk Drive. During the
meeting, Petitioner told Detective Clark that he was renting the property from Brathwaite.
Detective Clark asked Petitioner for copies of checks as proof of the rental arrangement.
Petitioner told Detective Clark that, although he did not have the paperwork in his
possession at that time, he would provide her with the documentation at a later date.
Petitioner did not mention Derrick Williams during the meeting.
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On September 15, 2010, during a telephone conversation, Detective Clark
informed Petitioner that Brathwaite’s signature on the purported lease was a forgery.
Petitioner told Detective Clark that he was unaware of any forged signature and stated
that he was renting the property from someone other than Brathwaite, and that he would
contact her later with that information. Detective Clark received an affidavit signed by
Brathwaite, and compared Brathwaite’s signature on the affidavit to the signature on the
purported lease. According to Detective Clark, the signatures appeared to have been
made by different people.
Michelle Hobby (“Michelle”), Petitioner’s wife, testified, on his behalf, that the
adjustable rate mortgage on the home that she and Petitioner owned in Fort Washington
adjusted and more than doubled their monthly mortgage payment, and that they
ultimately lost the home in foreclosure. According to Michelle, she and Petitioner first
met Derrick Williams, in 2008, when he brought potential purchasers to view their home,
which they were attempting to sell. In December 2009, Williams contacted Michelle and
Petitioner and informed them that “he had a property in Waldorf that was for rent” for
$3,500 per month for one year. In January 2010, Michelle and Petitioner met Williams at
2742 Kirk Drive. According to Michelle, Williams entered a code at the front gate of the
property and opened the front door of the home with a key. Two or three days after the
viewing, Michelle contacted Williams to advise that she and Petitioner wanted to rent the
home.
Michelle testified that on February 1, 2010, Williams visited her home in Fort
Washington to deliver the purported lease for 2742 Kirk Drive, and she observed
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Petitioner sign the lease with Brathwaite’s signature already on the document at the time.
Michelle testified that she and Petitioner paid $7,000 in cash to Williams upon signing
the lease to cover the first month’s rent and the security deposit. In March 2010,
Michelle, Petitioner, and their family moved into the home at 2742 Kirk Drive. Michelle
and Petitioner set up utilities and cable in their own names. Michelle testified that on
April 1, 2010, Williams visited the property to collect a rent payment in the amount of
$3,500, which Michelle and Petitioner paid in cash. In mid-April 2010, Michelle and
Petitioner received a letter in the mail from Severn Bank indicating that the property at
2742 Kirk Drive was in foreclosure. Michelle testified that, as a result, she attempted to
contact Williams several times by telephone, leaving messages to no avail, and near the
end of April 2010, Williams’s “[tele]phone was disconnected.”
According to Michelle, at the end of April 2010, she and Petitioner telephoned
Severn Bank and spoke with John Marhefka in the bank’s foreclosure department.
Michelle advised that she and her family were living in the home at 2742 Kirk Drive and
had received the foreclosure notice. Marhefka told them that “there was nothing that he
could do” because Severn Bank did not own the property. Michelle testified that she and
Petitioner did not make any rent payments afterward because they were unable to get in
contact with Williams or Brathwaite. According to Michelle, she telephoned Severn
Bank once a month for a status update and was told by Marhefka that there was “nothing
[Severn Bank] could do until [it] had possession of the property.” On July 23, 2010,
upon Marhefka’s request, Michelle faxed a copy of the purported lease.
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In September 2010, Michelle was notified that the purported lease was a forgery.
Michelle testified that she and her family moved out of the property on or around October
1, 2010, which was the earliest possible opportunity after learning that the purported
lease was a forgery. According to Michelle, the family used two sets of keys and a
garage door opener supplied by Williams to enter the home, and Petitioner left the two
sets of keys and garage door opener in the mailbox when the family moved out. Michelle
testified that, during their occupancy of 2742 Kirk Drive, neither Severn Bank nor
Brathwaite asked them to pay rent, and Severn Bank never requested permission to show
the house. Michelle acknowledged that no rent was paid after April 1, 2010.
Marhefka, a senior vice president and chief risk officer for Severn Bank, did not
recall speaking with Michelle. Marhefka recalled, however, a telephone conversation he
had with Petitioner on March 19, 2010, when Petitioner told Marhefka that he was a
tenant at 2472 Kirk Drive and wanted to purchase the home. On July 23, 2010, in
response to Marhefka’s request, Petitioner provided a copy of the purported lease.
At the close of the State’s case, Petitioner moved for judgment of acquittal,
contending that the theft charge had not been proven because the house “wasn’t taken or
moved or in any way hidden[,]” and arguing that there was no testimony as to any
financial loss incurred by Severn Bank. As to first-degree burglary, Petitioner asserted
that there was no intent to commit theft of any property and no breaking as he was given
keys and a garage door opener to enter the house. The State responded that “asportation
is not a requirement for theft” and that theft can be proven through the exertion of
“unauthorized control over . . . property.” The State argued that because Brathwaite
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testified that the house was locked and secured when she left, Petitioner had gained
access into the house with the intent to exert unauthorized control over the house. The
circuit court denied the motion for judgment of acquittal.
After the court’s ruling, before the presentation of additional evidence, Petitioner
augmented the motion for judgment of acquittal arguing as to first-degree burglary that
the house was not a dwelling because it was vacant and not intended to be used as an
abode and place for persons to sleep. The circuit court reserved ruling on the issue.
At the close of all the evidence, Petitioner renewed the motion for judgment. As
to theft, Petitioner argued:
If you look at unauthorized control or control by deception . . . there has to
be evidence of an intent to deprive the owner. Now, it’s a situation in
which they are in a lease situation. The Hobbys -- And the State has never
offered any evidence indicating that [Petitioner] claiming this as his own,
meaning this is, he’s exerting his dominion and control to the exclusion of
anyone else. There’s no evidence that [] Brathwaite didn’t want to get back
in there, or that if she had that they wouldn’t have left. There’s plenty of
evidence indicating that they didn’t even control, either the bank didn’t
even own the property or have poss -- I guess there’s still a possessory
interest even if it’s attenuated but, nonetheless, there’s certainly no intent to
deprive either [] Brathwaite or the bank of that property that they happen to
reside in. Now, I think when you’re looking at authorizing exertion and
control cases, that deprivation, what is the deprivation? I don’t believe the
State’s made that case at this point and it’s not in the light most favorable to
the State. I do believe there’s some serious issues here as to whether they
can say deprivation. As soon as they’re told to leave, they leave.
The circuit court denied the motion. Thereafter, the circuit court instructed the jury,
without objection, as to first-degree burglary and two theories of theft–(1) willfully and
knowingly obtaining or exerting unauthorized control over property and (2) obtaining
control over property by willfully or knowingly using deception.
-8-
The jury convicted Petitioner of theft of property valued in excess of $100,000,
forgery, uttering a false document, identity fraud, and first-degree burglary. The circuit
court sentenced Petitioner to five concurrent sentences of ten years’ imprisonment, with
all but fifty days suspended, a fine of $10,000, and five years’ unsupervised probation.
Petitioner noted an appeal to the Court of Special Appeals. In an unreported
opinion, by majority, a panel of the intermediate appellate court affirmed all judgments of
conviction, concluding that the evidence was sufficient to sustain convictions for theft
over $100,000 and first-degree burglary. The Honorable Christopher B. Kehoe dissented
as to the sufficiency of the evidence for the conviction of theft of property in excess of
$100,000. Judge Kehoe agreed that Petitioner was guilty of theft, but disagreed that the
State had presented sufficient evidence to support a finding that the fair market rental
value of the property during the period of Petitioner’s occupancy was in excess of
$100,000. Both the majority and Judge Kehoe agreed that Petitioner had abandoned the
claim that the “exert control” element of theft was not met by failing to raise the
argument on appeal.
Petitioner filed in this Court a Petition for Writ of Certiorari, which was granted
on April 22, 2013. See Hobby v. State, 431 Md. 219, 64 A.3d 496 (2013).
STANDARD OF REVIEW
In Derr v. State, 434 Md. 88, 129, 73 A.3d 254, 278-79 (2013), we recently
reiterated the standard of review governing appellate review of the sufficiency of
evidence to sustain a conviction, stating:
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When determining whether the State has presented sufficient
evidence to sustain a conviction, we have adopted the Supreme Court’s
standard articulated in Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct.
2781, 2789, 61 L. Ed. 2d 560, 573 (1979) (emphasis in original) (citation
omitted), namely, “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.” See Yates v.
State, 429 Md. 112, 125, 55 A.3d 25, 33 (2012), Titus v. State, 423 Md.
548, 557, 32 A.3d 44, 49-50 (2011). In applying this standard we have
stated:
The purpose is not to undertake a review of the record that
would amount to, in essence, a retrial of the case. Rather,
because the finder of fact has the unique opportunity to view
the evidence and to observe first-hand the demeanor and to
assess the credibility of witnesses during their live testimony,
we do not re-weigh the credibility of witnesses or attempt to
resolve any conflicts in the evidence. We recognize that the
finder of fact has the ability to choose among differing
inferences that might possibly be made from a factual
situation, and we therefore defer to any possible reasonable
inferences the trier of fact could have drawn from the
admitted evidence and need not decide 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.
Titus, 423 Md. at 557-58, 32 A.3d at 50 (quotations and citations omitted).
DISCUSSION
I.
Petitioner contends that the evidence is insufficient to support a conviction for
theft “in any amount.” Petitioner argues that a theft of a house did not occur, as the house
was not asported to another location, and thus, the evidence is insufficient “to prove the
mode of theft specifically set forth in the indictment.” Alternatively, Petitioner contends
that the State failed to prove that he deprived Brathwaite and Severn Bank of the property
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through deception because there was no prospective purchaser or lessee “displaced” as a
result of his occupancy; i.e., there was no deprivation and thus no theft. Petitioner also
asserts that the State failed to prove that he exerted unauthorized control over the
property, as his action in occupying the home as a “squatter” did not constitute theft
under the theory of “exerting unauthorized control.”
The State responds that Petitioner’s argument regarding the “exert control”
element of theft is not properly before the Court. The State contends that Petitioner failed
to raise the argument at three critical points: (1) in his motion for judgment of acquittal;
(2) in his brief in the Court of Special Appeals, resulting in the intermediate appellate
court determining that such an argument had been abandoned; and (3) in his Petition for
Writ of Certiorari, in which he failed to challenge the intermediate appellate court’s
abandonment holding.
The State contends that the evidence is sufficient to support Petitioner’s conviction
for theft under the theory of obtaining control by deception because the evidence
demonstrated that Petitioner, through deception, “brought about a transfer of possession
of the property.” The State argues that actual deprivation of the property is not required,
as the statute requires proof only that the defendant “intend[ed] to deprive the owner of
the property.” The State asserts that, even if actual deprivation is required, the jury could
reasonably have concluded that, because Petitioner resided in the house, he deprived the
owner of the opportunity to live there or to receive rental income from a lawful tenant.
Maryland Rule 4-324(a), concerning motions for judgment of acquittal, provides,
in pertinent part: “The defendant shall state with particularity all reasons why the motion
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should be granted.” “Under [Maryland] Rule 4-324(a), a defendant is . . . required to
argue precisely the ways in which the evidence should be found wanting and the
particular elements of the crime as to which the evidence is deficient.” Montgomery v.
State, 206 Md. App. 357, 385, 47 A.3d 1140, 1157, cert. denied, 429 Md. 83, 54 A.3d
761 (2012) (alteration and omission in original) (internal quotation marks omitted)
(quoting Fraidin v. State, 85 Md. App. 231, 244-45, 583 A.2d 1065, 1072, cert. denied,
322 Md. 614, 589 A.2d 57 (1991)). And, “[t]he language of the rule is mandatory.”
State v. Lyles, 308 Md. 129, 135, 517 A.2d 761, 764 (1986).
If a trial court denies a motion for judgment of acquittal made at the close of the
evidence offered by the State, a defendant “may offer evidence . . . without having
reserved the right to do so and to the same extent as if the motion had not been made. In
so doing, the defendant withdraws the motion.” Md. R. 4-324(c). In other words, a
defendant is required to renew a motion for judgment of acquittal at the close of all the
evidence or to argue anew why the evidence is insufficient to support a particular
conviction. See generally Warfield v. State, 315 Md. 474, 487-88, 554 A.2d 1238, 1245
(1989) (“When a party makes anew a motion for judgment at the conclusion of all the
evidence and states that the motion is based upon the same reasons given at the time of
the original motion was made, or when a party ‘renews’ a motion for judgment and
thereby implicitly incorporates by reference the reasons previously given, the reasons
supporting the motion are before the trial judge.”).
On appeal from a jury trial,
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appellate review of sufficiency of evidence is available only when the
defendant moves for judgment of acquittal at the close of all the evidence
and argues precisely the ways in which the evidence is lacking. The issue
of sufficiency of the evidence is not preserved when [the defendant]’s
motion for judgment of acquittal is on a ground different than that set forth
on appeal.
Anthony v. State, 117 Md. App. 119, 126, 699 A.2d 505, 508, cert. denied, 348 Md. 205,
703 A.2d 147 (1997) (citations omitted). Thus, “[a] defendant may not argue in the trial
court that the evidence was insufficient for one reason, then urge a different reason for
the insufficiency on appeal in challenging the denial of a motion for judgment of
acquittal.” Tetso v. State, 205 Md. App. 334, 384, 45 A.3d 788, 817, cert. denied, 428
Md. 545, 52 A.3d 979 (2012) (citation omitted).
Before this Court, where a prior appellate decision exists, Maryland Rule 8-
131(b)(1) governs:
Unless otherwise provided by the order granting the writ of certiorari, in
reviewing a decision rendered by the Court of Special Appeals . . ., the
Court of Appeals ordinarily will consider only an issue that has been raised
in the petition for certiorari or any cross-petition and that has been
preserved for review by the Court of Appeals. Whenever an issue raised in
a petition for certiorari or a cross-petition involves, either expressly or
implicitly, the assertion that the trial court committed error, the Court of
Appeals may consider whether the error was harmless or non-prejudicial
even though the matter of harm or prejudice was not raised in the petition
or in a cross-petition.
Here, as to theft of the house pursuant to Criminal Law Article (2002, 2012 Repl.
Vol.) (“C.L.”) § 7-104(a) of the Maryland Code (under the “exerting unauthorized
control” theory), we conclude that Petitioner failed to preserve an issue as to whether the
State proved the element of exerting unauthorized control. On brief, Petitioner contended
for the first time that the State failed to prove that he exerted unauthorized control over
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the property because “whatever crime a ‘squatter’ might commit, it is not theft under a
theory of exerting unauthorized control[,]” and the General Assembly did not intend to
criminalize a squatter’s conduct as theft. A review of the motion for judgment of
acquittal Petitioner made in the circuit court reveals that he did not raise the argument he
now raises before this Court. Before the trial court, Petitioner contended that there was
no evidence demonstrating that he exercised unauthorized control “to the exclusion of
anyone else[,]” in that there was no evidence that Brathwaite wanted to move back into
the home, or that if Brathwaite had wanted to move back in, that Petitioner would not
have left. Petitioner’s point as to control was that the State was required to prove actual
deprivation under the theft statute. In moving for judgment of acquittal, however,
Petitioner failed to argue with specificity that the exerting unauthorized control type of
theft is not applicable to the actions of a “squatter,” or that the General Assembly
intended the acts of a squatter to not constitute theft under the consolidated theft statute.
See Md. R. 4-324(a) (“The defendant shall state with particularity all reasons why the
motion [for judgment of acquittal] should be granted.”). The argument now raised by
Petitioner is not preserved for this Court. See Tetso, 205 Md. App. at 384, 45 A.3d at
817 (“[A] defendant may not argue in the trial court that the evidence was insufficient for
one reason, then urge a different reason for the insufficiency on appeal[.]” (Citation
omitted)); Anthony, 117 Md. App. at 126, 699 A.2d at 508 (“The issue of sufficiency of
the evidence is not preserved when [the defendant]’s motion for judgment of acquittal is
on a ground different than that set forth on appeal.” (Citations omitted)).
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Not only did Petitioner fail to preserve the lack of exerting unauthorized control
argument in the trial court, but Petitioner also failed to raise the argument in the Court of
Special Appeals. In its unreported opinion, the intermediate appellate court specifically
observed:
The State notes that [Petitioner] did not argue that he did not “exert
control” over the house by living in it for several months because it was
“land.” Although [Petitioner] raised this argument in his motion for
judgment of acquittal, which was denied by the trial court, we agree that
Hobby has, consequently, “abandoned any such claim” by not raising a
“control” or “land” argument on appeal.
Indeed, in dissent, Judge Kehoe agreed that “[t]he Majority had no choice but to accept
the State’s reasoning because the issue was not raised on appeal.” “[A] question not
presented or argued in an appellant’s brief is waived or abandoned and is, therefore, not
properly preserved for review.” State v. Jones, 138 Md. App. 178, 230, 771 A.2d 407,
438 (2001), aff’d, 379 Md. 704, 843 A.2d 778 (2004) (alteration in original) (citation and
internal quotation marks omitted).
Compounding the problem, Petitioner failed to raise his lack of exerting
unauthorized control argument in the Petition for Writ of Certiorari filed with this Court
or to challenge the Court of Special Appeals’s determination that he abandoned the
argument. Pursuant to Maryland Rule 8-131(b)(1), our review is confined ordinarily to
only those issues that have “been raised in the petition for certiorari or any cross-
petition[.]” We have not hesitated to disregard issues raised in a petitioner’s brief that
were not properly included in the petition for certiorari. See Yates v. State, 429 Md.
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112, 130 n.6, 55 A.3d 25, 36 n.6 (2012); Huger v. State, 285 Md. 347, 354, 402 A.2d
880, 885 (1979). As such, we decline to address the contention.
As to the merits of the preserved arguments, C.L. § 7-104 of the Maryland Code
prohibits theft committed in several ways, including the following two:
(a) Unauthorized control over property. – A person may not willfully or
knowingly obtain or exert unauthorized control over property, 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.
(b) Unauthorized control over property – By deception. – A person may not
obtain control over property by willfully or knowingly using deception, 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.
“Obtain” is defined, in relevant part, in C.L. § 7-101(g) as “(1) in relation to
property, to bring about a transfer of interest in or possession of the property[.]”
“Property,” as used in the theft statute, “means anything of value[,]” C.L. § 7-101(i)(1),
and includes “real estate” as well as “a thing growing on or affixed to, or found on land,
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or part of or affixed to any building[.]” C.L. § 7-101(2)(i) and (2)(vi). Contra Sheffield
v. State, 708 So. 2d 899, 900, 902, 906, 910 (Ala. Crim. App. 1997), cert. denied, 708
So. 2d 911 (Ala. 1997) (The Court of Criminal Appeals of Alabama held that a person
could not steal real property, specifically an “interest in land,” because Alabama’s theft
statute failed to explicitly include “real property” within the definition of “property”; the
Court further observed: “[I]n most states, the evolution of [the types of property that can
be the subject of theft and theft-related offenses] has produced a broader definition of
‘property’ than it has in Alabama–a definition that, in most instances, explicitly and
specifically includes real property.”).
In Maryland, the common law crime of larceny was traditionally defined as “the
intentional taking, without legal warrant, of the personal property of another with the
unlawful intention to deprive the owner of such property.” Murray v. State, 214 Md. 383,
386, 135 A.2d 314, 315 (1957) (citation and internal quotation marks omitted) (emphasis
added). “[M]odern [theft] statutes[, however,] have generally covered other kinds of
property as well.” Wayne R. LaFave, Substantive Criminal Law § 19.4 (2d ed.) (updated
Oct. 2013). In Maryland, “[b]y chapter 849 of the Acts of 1978, . . . the General
Assembly . . ., effective July 1, 1979, consolidated a number of theft-related offenses . . .
into a single newly created statutory offense known as theft.” Jones v. State, 303 Md.
323, 326, 493 A.2d 1062, 1063 (1985). 3 By Chapter 849 of the Acts of 1978, the General
3
The consolidated theft statute “combin[ed] what were previously seven separate
larceny offenses into the one crime of theft[,]” including “larceny, larceny by trick,
larceny after trust, embezzlement, false pretenses, shoplifting, and receiving stolen
(Continued...)
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Assembly expanded the common law definition of “property” to include, among other
things, “real estate” and “things growing on or affixed to, or found on land, or part of or
affixed to any building[.]” 1978 Md. Laws 2466. That definition remains in force today.
The theft statute distinguishes between “personal property” and “property,” as
seen in C.L. § 7-104(c), which, in contrast to C.L. § 7-104(a) and (b), narrowly prohibits
possessing stolen personal property; specifically, pursuant to C.L. § 7-104(c), “[a] person
may not possess stolen personal property knowing that it has been stolen, or believing
that it probably has been stolen[.]” (Emphasis added). The modern consolidated theft
statute does not distinguish, however, between “movable” and “immovable” property, as
does the Model Penal Code. See Model Penal Code § 223.2. In addition, the modern
consolidated theft statute does not require asportation 4 of property. See Charles E.
Moylan, Jr., Maryland’s Consolidated Theft Law and Unauthorized Use § 4.2, 24 (2001)
(“Significantly missing from the current definition of theft’s proscribed acquisition,
however, are common law larceny’s requirements of a trespassory taking (the caption)
and a carrying away (asportation).”).
In People v. Perry, 864 N.E.2d 196, 201 (Ill. 2007), the Supreme Court of Illinois
“determine[d] whether [a] defendant was properly convicted of theft of property valued
in excess of $10,000 when the property at issue was the occupancy of a hotel room for a
period of more than three months.” The Court observed that, although under the common
property.” State v. Weems, 429 Md. 329, 338, 338 n.5, 55 A.3d 921, 926, 926 n.5 (2012)
(citations omitted).
4
“Asportation” is “[t]he act of carrying away or removing (property or a person).”
Black’s Law Dictionary 122 (8th ed. 2004).
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law occupancy of a hotel room could not have been larceny, under the modern Illinois
theft statute, “some items that would not have been subject to the crime of larceny at
common law were nevertheless property subject to statutory theft.” Id. at 204-05. 5 The
Court noted that, although “[r]eal estate cannot be taken and carried away,” it is
“property” under the Illinois theft statute. Id. at 206. The Court characterized the
property at issue in the case as occupancy of the hotel room (as opposed to the room
itself), and held that “use of a hotel room is a thing of value” and, thus, “property” within
the meaning of the Illinois theft statute. Id. at 209. The Court’s characterization of the
property was further explained as follows:
The property at issue here is the use of a hotel room. The hotel’s
complement of rooms can be analogized to a store’s inventory of goods.
The hotel has a finite number of rooms, which it can rent to members of the
public 365 nights each year. One night in one room is a thing of value.
When this thing of value is taken by deception, the owner has permanently
lost the benefit of one night’s income. We, therefore, hold that each night
of occupancy that is obtained by deception permanently deprives the owner
of the beneficial use of the hotel room within the meaning of [the Illinois
theft statute].
Id. at 211. Accordingly, the Court held that “the taking of such property [occupancy of a
hotel room] by deception can result in the owner[] being permanently deprived of its use
or benefit” sufficient to support a conviction under the Illinois theft statute. Id. at 222.
The Court held that the value of the hotel suite, which the defendant occupied with his
family for several months without payment, exceeded $10,000, based on a rental rate of
5
Like Maryland’s theft statute, Illinois’s theft statute defines property as “anything
of value” including “real estate” and “things growing on, affixed to, or found o[n] land,
or part of or affixed to any building[.]” Perry, 864 N.E.2d at 202 (citation omitted).
- 19 -
at least $130 per night. Id. at 211. The Court rejected the defendant’s claim that the
prosecution did not show “a permanent loss of possession by the owner.” Id.
C.L. § 7-101(c) defines “deprive” as used in Maryland’s theft statute, as follows:
“Deprive” means to withhold property of another:
(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.
The Court of Special Appeals has observed that, “[u]nder the plain language of the [theft]
statute, actual deprivation to the owner is merely one circumstance from which the jury
may infer that the offender committed the prohibited act with the requisite criminal
intent.” Lane v. State, 60 Md. App. 412, 423, 483 A.2d 369, 375 (1984), cert. denied,
302 Md. 570, 489 A.2d 1129 (1985). In other words, proof of actual deprivation is not
required under the statute; rather, proof of the defendant’s intent to deprive is required.
See C.L. § 7-104(a)(1) and (b)(1).
In the instant matter, we examine first whether the “property” at issue may be the
subject of theft under C.L. § 7-104(b). Under the consolidated theft statute, a house most
certainly may be the subject of a theft as it is a thing “of value.” C.L. § 7-101(i)(1).
More specifically, a house is also “real estate” and “a thing . . . affixed to, or found on
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land[.]” C.L. § 7-101(i)(2)(i) and (2)(vi). 6 From our perspective, theft of a house could
conceivably be accomplished in any number of ways. For example, a home could be
detached from its foundation and physically removed from its original location. Or, a
thief could effect a transfer of fee simple title of the home, or the transfer of some other
interest in the home. 7 Or, as in this case, theft of a house could occur where a thief
temporarily occupies or possesses the home without authorization or payment to the
lawful owner. On this point, Perry, 864 N.E.2d 196, is instructive. In Perry, the Supreme
Court of Illinois determined occupancy, or use, of a hotel room, to be theft of “property”
for purposes of Illinois’s theft statute, as the hotel room was a thing of value that earned
income for the owner, and when taken by deception, “the owner . . . permanently lost the
benefit of one night’s income.” Id. at 211.
Here, Petitioner was alleged to have occupied or possessed 2742 Kirk Drive
without payment or authorization for a period of approximately seven months. Simply
put, finding the holding of the Supreme Court of Illinois in Perry, id., instructive, we are
satisfied that theft of a house may occur through occupancy or possession of the house
without payment for it or its use to the lawful owner and without authorization or consent
of the lawful owner–i.e., the occupancy or possession of the house is a thing of value that
can be the subject of theft.
6
This is, of course, in contrast to common law larceny, which was limited to theft
of tangible personal property that could be carried away by the thief.
7
The State notes that “at no time” has it “claim[ed] that [Petitioner] stole fee
simple title” to the home.
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We reject Petitioner’s argument that theft of the house did not occur as the house
remains at its original location and was not asported to another location. Petitioner
confuses the common law crime of larceny with theft under the modern consolidated
theft statute. Asportation, or the carrying away or removal of property, is not required
under the modern consolidated theft statute. See C.L. § 7-104; Moylan, supra, at 24.
Stated otherwise, the State is not required to demonstrate that Petitioner carried away the
house from its original location to prove that Petitioner committed theft of the house.
And, the indictment did not aver that Petitioner carried away the home.
As to theft of the house pursuant to C.L. § 7-104(b)–theft by deception–viewing
the evidence in the light most favorable to the State (as we must), we are convinced that
the evidence is sufficient to support the conclusion that Petitioner committed theft by
obtaining control and possession of the property through deception, and, specifically, that
Petitioner brought about the physical transfer of possession of the house located at 2742
Kirk Drive through deception. There was ample evidence from which the jury could
reasonably have concluded that Petitioner resided in, or possessed, the home for
approximately seven months, without the consent or knowledge of Brathwaite, the lawful
owner, and that he forged the lease with the intent to remain in the home rent-free. The
jury was entitled to discredit, in its entirety, Michelle’s testimony that an individual
named Derrick Williams arranged for lease of the property, and to conclude instead that
the purported lease was a bogus creation by Petitioner meant to fraudulently arrange his
possession and occupancy of the property. Or, the jury may have believed Michelle’s
testimony that an individual named “Derrick Williams” existed, but concluded instead
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that Petitioner and Williams schemed together to enable Petitioner to reside in the
property rent-free. 8 Without a doubt, testimony concerning the existence and forging of a
lease agreement, purporting to be a lawful lease of the property from Brathwaite to
Petitioner, was sufficient to support a finding that Petitioner intended to deprive
Brathwaite and Severn Bank of the property, and was sufficient to establish theft through
deception.
We find no merit in Petitioner’s contention that the State was required to prove
actual deprivation to support a conviction pursuant to C.L. § 7-104(b). By its plain
language, C.L. § 7-104(b) does not require proof of actual deprivation. A person may
commit theft by “willfully or knowingly using deception, if the person[] intends to
deprive the owner of the property[.]” C.L. § 7-104(b)(1) (emphasis added). Although
“actual deprivation to the owner is . . . one circumstance from which the jury may infer
that the offender committed the prohibited act with the requisite criminal intent[,]” Lane,
60 Md. App. at 423, 483 A.2d at 375, the statute does not require that exact proof.
Petitioner’s reliance on Fraidin, 85 Md. App. 231, 583 A.2d 1065, for the
proposition that actual deprivation is required for conviction under the theft statute is not
persuasive. In Fraidin, id. at 245, 583 A.2d at 1072, the Court of Special Appeals
focused “in assessing legal sufficiency [for theft], [on] only two sub-issues: 1) proof of
deception and 2) proof of obtaining control.” The Court of Special Appeals did not find
proof of deprivation to be a required element of theft under either theory. Indeed, this
8
We note also that the jury convicted Petitioner of forgery and identity fraud, two
other crimes involving deception and dishonesty.
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Court later observed that, in Fraidin, the Court of Special Appeals “did not even address
the intentional deprivation element of the theft statute.” Coleman v. State, 423 Md. 666,
678, 33 A.3d 468, 475 (2011) (citation omitted). Any reliance on, or citation to, Fraidin
for the proposition that actual deprivation is required under C.L. § 7-104(b) is misplaced.
For the reasons above, the evidence is more than sufficient to support Petitioner’s
conviction for theft under C.L. § 7-104(b).
II.
Petitioner contends that the evidence is insufficient to support a conviction for
theft of property valued in excess $100,000. Petitioner argues that the State bears the
burden of proving the value of the property stolen, and asserts that the evidence adduced
was vague concerning financial loss. Petitioner asserts that, at most, the State proved a
financial loss of between $21,000 to $24,500, not $100,000. Petitioner maintains that the
proper valuation method to be used is the value of the occupancy of the property, not the
total market value of the property.
The State responds that the evidence was sufficient to support a conviction of theft
over $100,000. The State contends that the evidence at trial demonstrated that the house
was sold for $650,000, and that, given the value of the house, Petitioner was properly
convicted of theft over $100,000. Alternatively, the State contends that, even if the value
of the property stolen was under $100,000, i.e., that the amount of the theft was the value
of the rental of the property, the appropriate remedy is to enter a judgment of conviction
for theft of property having a value over $10,000 and less than $100,000, and to remand
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for resentencing. We agree with Petitioner that the evidence was insufficient to support a
conviction for theft of property in excess of $100,000, and explain.
The general theft statute sets forth penalties dependent on the value of the property
or services stolen. C.L. § 7-104(g). C.L. § 7-103 provides, in relevant part:
(a) “Value” defined. – In this section, “value” means:
(1) the market value of the property or service at the time and
place of the crime; or
(2) if the market value cannot satisfactorily be ascertained,
the cost of the replacement of the property or service within a
reasonable time after the crime.
(b) In general. – The value of property or service under this part shall be
determined in accordance with this section.
The Court of Special Appeals has stated that “[w]hether a theft is a felony or a
misdemeanor depends on the value of the property that was the subject of the theft.”
Lane v. State, 60 Md. App. at 425, 483 A.2d at 376 (emphasis in original) (citation
omitted). The State bears the burden of proving that the property stolen has value and, if
seeking an enhanced penalty, the value of the property stolen. See Mercer v. State, 237
Md. 479, 484-85, 206 A.2d 797, 801 (1965) (“[T]he State has the burden of showing that
the article taken had a value of $100 or more.”); Jackson v. State, 10 Md. App. 337, 348,
270 A.2d 322, 327-28 (1970), cert. denied, 260 Md. 721 (1971) (“Of course, the State
must prove the value of the goods received to establish the punishment authorized[.]”).
As to convictions for lesser included offenses, in Brooks v. State, 314 Md. 585,
586, 552 A.2d 872, 873 (1989), a robbery case, we held that the evidence was insufficient
to establish robbery with a deadly or a dangerous weapon within the meaning of a
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criminal statute. Nonetheless, although reversing the Court of Special Appeals with
directions to remand the case to the trial court, we held:
There need be no new trial, however. When the jury convicted [the
defendant] of armed robbery, it necessarily convicted him of simple
robbery as well. We shall further direct that the judgment in the trial court
be vacated, that a verdict of guilty of robbery be entered, and that [the
defendant] then be sentenced on the robbery conviction. E.g., United States
v. Dickinson, 706 F.2d 88, 92-93 (2d Cir. 1983) (when there is insufficient
evidence to convict of a greater offense, appellate court may reverse
conviction and enter judgment on a lesser-included offense); Dickenson v.
Israel, 482 F. Supp. 1223, 1225-1226 (E.D. Wis. 1980), aff’d, 644 F.2d 308
(7th Cir. 1981) (same); State v. Grant, 177 Conn. 140, 147-149, 411 A.2d
917, 920-921 (1979) (same); see Morris v. Mathews, 475 U.S. 237, 246-
247, 106 S. Ct. 1032, 1038, 89 L. Ed. 2d 187, 197 (1986) (defendant’s
jeopardy-barred conviction may be cured by reducing it to a conviction of a
lesser-included offense which is not jeopardy-barred).
Brooks, 314 Md. at 601, 552 A.2d at 880-81 (some citations omitted). See also Smith v.
State, 412 Md. 150, 166, 985 A.2d 1204, 1214 (2009) (If a conviction for a greater
offense is reversed, a defendant may be convicted of a lesser included offense without a
new trial, so long as the reversal is not due to inconsistent verdicts.) (Citation omitted).
Here, although the State does not contend that Petitioner stole fee simple title or
ownership to 2742 Kirk Drive, or asported away the house, the State argues that the value
of the property stolen–the occupancy of the home for a period of months–is equivalent to
the value of the home itself. It is undisputed that the theft involved the occupancy or
possession of the house without payment to the lawful owner and absent authorization or
consent of the lawful owner. We agree with the thorough and well-reasoned dissenting
opinion of Judge Kehoe that, under this circumstance, “the proper approach is the one set
forth in Perry, [864 N.E.2d at 211,] namely, to determine the fair market value of the
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right to possess the house during the period of [Petitioner]’s occupancy.” As Judge
Kehoe aptly explained, “title ownership of real property is distinct from the right to
occupy.”
We reject Petitioner’s argument that rental value is not relevant in this case
because Petitioner was not charged with stealing rental value, i.e., Petitioner was charged
with theft of the house. As discussed above, theft of a house, which was properly
charged in the indictment, can be achieved in numerous ways, including occupying or
possessing the house without authorization or consent of the lawful owner and without
payment to the lawful owner. The indictment need not specify whether the value of the
stolen property is to be calculated based on fair market rental value or fair market value
so long as the indictment charges that the property alleged to have been stolen is a thing
of a certain value.
Likewise, we reject the argument that rental value attaches only to certain types of
property, such as a hotel room or a boarding house, and not to a house that is vacant and
not being leased. This argument strikes us as disingenuous. Obviously, a house, like a
hotel room or a boarding house, may be rented or leased, at the owner’s discretion. That
an owner is not in the process of offering a house or room for rent, or that there is not a
demand on a particular day to rent the house or room, does not mean that the house or
room is incapable of being rented or that the lawful owner could not collect rent from
tenants. Stated otherwise, the absence of a tenant or an attempt to procure a tenant does
not mean that occupancy of the house or room is not a thing of value.
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Like Judge Kehoe, we are convinced that the appropriate measure of the value of
the property stolen in this case is the fair market rental value of the house at 2742 Kirk
Drive. The evidence at trial demonstrated that Brathwaite’s monthly mortgage payment
was approximately $6,000, and that her monthly payment to the builder was an additional
$2,500 to $3,500. According to Michelle, she and Petitioner signed a lease agreeing to
pay $3,500 per month to rent the home at 2742 Kirk Drive. Michelle testified that she
and Petitioner moved into the home in March 2010, and vacated the home around the first
of October 2010, after a period of approximately seven months. Thus, the State
demonstrated a financial loss, at a minimum, of $24,500, and, at a maximum, of $66,500.
As such, we agree with the Judge Kehoe that the evidence was insufficient to support
Petitioner’s conviction for theft of property valued in excess of $100,000.
In finding Petitioner guilty of theft of property valued in excess of $100,000, the
jury, of necessity, found Petitioner guilty of theft of property of a value of at least
$10,000. Although we reverse the conviction for theft of property valued in excess of
$100,000, a new trial is not required. Rather, as in Brooks, 314 Md. at 601, 552 A.2d at
880-81, we direct that the judgment of the trial court as to this count be vacated, that a
verdict of guilty of theft of property having a value of at least $10,000 but less than
$100,000 be entered, and that on remand Petitioner then be sentenced on the conviction. 9
9
Such a result is consistent with Petitioner’s position in the Petition for Writ of
Certiorari: “[I]f the reversal is limited to the element of value, resentencing on the theft
count is in order.”
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III.
Petitioner contends that the evidence was insufficient to support his conviction for
first-degree burglary. Specifically, Petitioner asserts that he was charged with breaking
and entering the property “with the intent to commit theft,” and argues–as he did with the
theft conviction–that he did not commit theft, and that the intent to occupy an
“abandoned property” is not an intent to commit theft. Petitioner argues that the house
was not a “dwelling” within the meaning of the burglary statute because Brathwaite had
abandoned the house in July 2009 and Severn Bank did not yet own the property at the
time of his occupancy. As a final matter, Petitioner maintains that there was no evidence
of a breaking because there were no broken doors or windows and, according to
Petitioner, no force or deception was utilized to gain entry into the house.
The State contends that the house was a dwelling, and that its vacancy for a period
of months did not deprive the house of its status as a dwelling. The State argues that the
evidence was sufficient to establish a breaking because testimony demonstrated that there
was “illegitimacy” in Petitioner’s use of keys and a garage door opener to enter the home.
C.L. § 6-202(a) prohibits first-degree burglary; specifically, “[a] person may not
break and enter the dwelling of another with the intent to commit theft or a crime of
violence.” As used in the statute, the terms “break” and “dwelling” “retain[ their]
judicially determined meaning[s] except to the extent that [the] meaning[s are] expressly
or impliedly changed in this subtitle.” C.L. § 6-201(b) and (e).
- 29 -
In McKenzie v. State, 407 Md. 120, 121-22, 962 A.2d 998, 999 (2008), we held
that an apartment vacant between tenancies was a “dwelling” for purposes of the fourth-
degree burglary statute. In so concluding, we stated:
To be a dwelling, the place must be of human habitation, that is, a
“place to sleep in[.]” A structure does not become a dwelling until
someone occupies it. Once a dwelling, however, the structure does not lose
its character as a dwelling simply because it is left vacant for a time. The
length of the vacancy, moreover, does not, of itself, disturb the character of
the place as a dwelling. “Certain it is that the dweller and his entire
household may be away for months, without depriving the house of its
character as his dwelling.”
Id. at 127, 962 A.2d at 1002 (citations omitted). We observed:
To be sure, burglary does not require that the dwelling be occupied by its
residents at the time of the breaking; however, the law distinguishes a
temporarily unoccupied dwelling house from a building [that], although at
times used as a dwelling, has at the time of the breaking been abandoned by
its occupants. The former is a proper subject of burglary; the latter is not.
Id. at 133, 962 A.2d at 1005 (emphasis in original) (internal quotation marks omitted)
(quoting Wallace v. State, 63 Md. App. 399, 407, 492 A.2d 970, 975, cert. denied, 304
Md. 301, 498 A.2d 1186 (1985)). And, in McKenzie, id. at 133, 962 A.2d at 1007, we
stated: “To the extent that any of the case law developed in the Court of Special Appeals
intimates to the contrary, [i.e., that a unit between rentals is not a “dwelling,”] it is hereby
overruled to that extent.”
In Jones v. State, 395 Md. 97, 101, 118-19, 909 A.2d 650, 652, 662 (2006), upon
finding evidence insufficient to establish a breaking, we stated that “[a] breaking occurs
where there has been either an actual breaking or a constructive breaking.” (Citations
omitted). “Actual breaking” occurs by “unloosing, removing or displacing any covering
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or fastening of the premises.” Id. at 119, 909 A.2d at 663 (citation and internal quotation
marks omitted). “Constructive breaking,” on the other hand, “involves entry gained by
artifice, fraud, conspiracy or threat.” Id. at 119, 909 A.2d at 663 (citation omitted).
To begin, we dispose of Petitioner’s argument that, because he did not commit
theft, or have the intent to do so, there was insufficient evidence to support the burglary
conviction. Petitioner’s contention is without merit. As set forth in detail above, the
evidence was sufficient for the jury to have concluded that Petitioner committed theft,
and, as a corollary, that he broke and entered the property “with the intent to commit
theft.” The first-degree burglary statute does not require the completion of the crime of
theft, but rather only “the intent to commit theft.” C.L. § 6-202(a). It would be
nonsensical to conclude that the evidence was sufficient to support the theft conviction,
but not sufficient to support a burglary conviction, where an element of first-degree
burglary is the intent to commit a theft. 10
As to whether the home at 2742 Kirk Drive was a “dwelling” for purposes of the
burglary statute, our holding in McKenzie is instructive. In McKenzie, 407 Md. at 127,
962 A.2d at 1002, we recognized that a dwelling is a place to sleep in, and that once a
structure becomes a dwelling, by virtue of someone having occupied it, it “does not lose
its character as a dwelling simply because it is left vacant for a time.” (Citations
10
On brief, the State asserts that Petitioner’s argument that he did not commit a
theft, and therefore did not commit a burglary, is not preserved for appellate review as the
argument was not raised in the motion for judgment of acquittal, in the Court of Special
Appeals, or in the Petition for Writ of Certiorari. We need not address the matter of
preservation, however, as the sufficiency of the evidence as to the theft conviction has
already been determined by this Court, and Petitioner’s argument lacks merit on its face.
- 31 -
omitted). Indeed, a dweller may leave his or her home for months, “without depriving
the house of its character as his [or her] dwelling.” Id. at 127, 962 A.2d at 1002 (citation
omitted). There exists a distinction for purposes of burglary between a temporarily
unoccupied dwelling and a dwelling that has been completely “abandoned by its
occupants.” Id. at 133, 962 A.2d at 1005 (citation omitted). As such, in McKenzie, id. at
135, 962 A.2d at 1007, we held that an unoccupied apartment between rentals, but
suitable for occupancy, was a dwelling for purposes of fourth-degree burglary.
Likewise, in this case, the unoccupied home at 2742 Kirk Drive, vacant, but
suitable for occupancy–and, indeed, occupied by Petitioner and his family for seven
months–was a dwelling for purposes of first-degree burglary. Clearly, the home was a
dwelling in June 2007, when Brathwaite first moved into the newly built structure and
slept in the home nightly. Brathwaite continuously resided in the home for the next two
years until July 2009, when she moved out. Although Brathwaite moved out of the
home, there was no testimony suggesting that she intended the home to remain forever
vacant or unoccupied by others. Indeed, Brathwaite had initially attempted to sell the
home on the open market. Brathwaite left the home intact with the windows and doors
locked and intended to sell the house as a dwelling. Colander, general counsel and vice
president of Severn Bank, testified that she worked on behalf of the bank to take
possession of the property for the bank so that it could be sold to an individual who
would occupy it. And, as the Court of Special Appeals noted, “[b]etween the time of her
departure and the time the property was purchased by the bank, Brathwaite could have
legally returned to the home at any time.” Petitioner moved into the property in March
- 32 -
2010, only eight months after Brathwaite moved out, and found the home intact and
suitable for occupancy. The dwelling did not lose its character as a dwelling, under these
circumstances, simply because it was unoccupied for an eight-month period.
We reject Petitioner’s contention that there was no evidence of a “breaking”
because he used keys and a garage door opener to access the home, and did not break any
windows or doors, or use force to gain entry. An “actual breaking” can occur by “turning
a key or knob[.]” Jones, 395 Md. at 119, 909 A.2d at 663 (citation omitted). There was
sufficient evidence for a determination beyond a reasonable doubt that Petitioner
obtained the keys and garage door opener, which he used to access the home, without
authorization from Brathwaite. Brathwaite testified that she did not know Petitioner or
anybody named Derrick Williams. Brathwaite testified that she did not rent the property
to anyone, and she did not make or authorize her signature on Petitioner’s lease. This
testimony supports the conclusion beyond a reasonable doubt that Petitioner obtained the
keys and garage door opener without Brathwaite’s authorization. Taken in the light most
favorable to the State, the evidence presented at trial was sufficient to establish a
“breaking” and to support a conviction for first-degree burglary.
JUDGMENT OF THE COURT OF SPECIAL
APPEALS REVERSED, IN PART, AND
AFFIRMED, IN PART, AS STATED IN THE
OPINION. CASE REMANDED TO THAT
COURT WITH DIRECTIONS TO: VACATE THE
JUDGMENT OF CONVICTION FOR THEFT OF
PROPERTY VALUED IN EXCESS OF $100,000;
ENTER A JUDGMENT OF CONVICTION FOR
THEFT OF PROPERTY HAVING A VALUE OF
AT LEAST $10,000 BUT LESS THAN $100,000;
- 33 -
AND REMAND THE CASE TO THE CIRCUIT
COURT FOR CHARLES COUNTY FOR
RESENTENCING FOR THE CONVICTION OF
THEFT OF PROPERTY HAVING A VALUE OF
AT LEAST $10,000 BUT LESS THAN $100,000.
COSTS IN THIS COURT AND THE COURT OF
SPECIAL APPEALS TO BE PAID 2/3 BY
PETITIONER AND 1/3 BY CHARLES COUNTY.
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