Shivers v. State

Sharon Shivers v. State of Maryland, No. 879, September Term 2021. Opinion by
Beachley, J.
CRIMINAL LAW – RESTITUTION – ATTORNEY’S FEES – STATUTORY
INTERPRETATION
Facts: Appellant was convicted of one count of theft of property valued between $25,000
and $100,000. The basis for appellant’s convictions were the withdrawals of $85,000 from
her father’s accounts. The court sentenced appellant to six months’ incarceration and
ordered her to pay $6,000 in attorney’s fees her father spent to recover his funds.
Held: Judgment of conviction affirmed. Restitution order reversed.
After holding that there was sufficient evidence to support appellant’s theft
conviction, the Court addressed the restitution award.
In a matter of first impression, the Court held that the circuit court erred in awarding
the victim attorney’s fees he incurred in an attempt to retrieve his funds pursuant to CJ §
11-603(a)(2)(ii) (“as a direct result of the crime or delinquent act the victim suffered . . .
direct out-of-pocket loss”). Construing the statute’s plain language and the context of the
“direct out-of-pocket loss” provision within the subsection, the Court concluded that CP §
11-603(a)(2)(ii) exclusively authorizes a court to award restitution losses resulting from a
victim’s physical or mental injury.
Circuit Court for Prince George’s County
Case No. CT190956X
REPORTED
IN THE APPELLATE COURT
OF MARYLAND*
No. 879
September Term, 2021
______________________________________
SHARON SHIVERS
v.
STATE OF MARYLAND
______________________________________
Friedman,
Beachley,
Salmon, James P.
(Senior Judge, Specially Assigned),
JJ.
______________________________________
Opinion by Beachley, J.
______________________________________
Filed: January 3, 2023
*At the November 8, 2022 general election, the voters of Maryland ratified a constitutional
amendment changing the name of the Court of Special Appeals of Maryland to the
Appellate Court of Maryland. The name change took effect on December 14, 2022.
Following a two-day trial, a jury in the Circuit Court for Prince George’s County
convicted appellant, Sharon Shivers,1 of one count of theft of property valued between
$25,000 and $100,000. At the restitution and sentencing hearing, the trial court ordered
appellant to pay $6,000 in restitution—$5,000 directly to the victim, and $1,000 to the
victim’s attorney. The court then sentenced appellant to six months’ incarceration.
Appellant timely appealed and presents the following three questions for our review:
1. Is the evidence sufficient to support [appellant’s] theft conviction?
2. Did the lower court err in excluding relevant, non-hearsay evidence
which supported [appellant’s] defense that she lacked the necessary mens
rea for theft?
3. Did the lower court err in awarding attorney’s fees as restitution in a
criminal case?
We shall affirm appellant’s conviction, but reverse the restitution award.
FACTUAL AND PROCEDURAL BACKGROUND
John Smith, the victim in this case, is appellant’s elderly father.2 Following the
passing of Mr. Smith’s wife in 1987, he and appellant developed a somewhat strained
relationship, and at one point did not communicate for approximately ten to fifteen years.
The two reconnected, however, when Mr. Smith, who had been residing in Laurel,
Maryland, learned that appellant “was living a few miles from [him],” and that appellant
1
Although this case was docketed in the Circuit Court for Prince George’s County
as “State v. Sheron Shiver,” appellant spelled her name as “Sharon Shivers” while
testifying at trial. We have changed the caption to reflect the correct spelling of appellant’s
name.
2
At the trial, which took place on March 9 and 10, 2020, Mr. Smith testified that he
was eighty-eight years old.
had a grandson (Mr. Smith’s great grandson) whom Mr. Smith was eager to meet. Mr.
Smith then called appellant, ending their estrangement, and appellant brought her grandson
to meet Mr. Smith. Mr. Smith and appellant then began seeing each other regularly, with
appellant bringing her grandson to Mr. Smith’s home approximately twice a month.
Having reconnected with his daughter, in November of 2017, Mr. Smith decided to
add appellant’s name to his bank account. Mr. Smith did so because he had been
experiencing medical issues, and he believed he could trust her to “write checks in case
[he] couldn’t write checks” to pay his bills and his mortgage in the event his medical issues
incapacitated him or required hospitalization. Mr. Smith expressly conveyed to appellant
that he was simply adding her name to his bank account to allow her to pay his bills if he
was unable to do so.
In early 2019, there was approximately $95,000 in Mr. Smith’s account. Mr. Smith
intentionally chose not to invest this money, instead preferring to have immediate access
to his funds. Mr. Smith reasoned that he needed immediately available funds to pay for
several prescription drugs to treat his numerous medical conditions.
Both Mr. Smith and appellant agree that on March 1, 2019, appellant made two
separate withdrawals from Mr. Smith’s account. The first was a withdrawal of $35,000,
which appellant placed into her own bank account. The second was a $50,000 withdrawal
which appellant placed into a certificate of deposit in Mr. Smith’s name. Appellant’s and
Mr. Smith’s respective narratives for why this occurred, however, differ.
According to Mr. Smith, it was a complete surprise for him to learn that $85,000
was missing from his account. In April 2019, Mr. Smith went to a dental appointment and
2
received bills totaling $11,000. When Mr. Smith went to his bank to withdraw the money
in order to pay the dental bills, he learned, for the first time, that appellant had taken his
money. Mr. Smith was furious. He confronted appellant and asked for the money back.
Appellant replied that she “would think about it.” As of the trial—March 9 and 10, 2020—
appellant had still not returned Mr. Smith’s money.
According to appellant, however, her withdrawals were the result of conversations
she had with Mr. Smith about how to use his funds. Appellant was partially motivated to
transfer the funds based on her perception that Mr. Smith was exhibiting concerning
behaviors. These included him asking appellant to purchase a sledgehammer so that he
could destroy his own furniture in order to purchase smaller furniture that would fit in an
assisted living facility, and Mr. Smith’s diet consisting mostly of “StoveTop dressing and
milk.” Overall, appellant perceived that Mr. Smith “wasn’t grasping what was going on.”
Based on these observations, appellant decided to withdraw $85,000 from Mr. Smith’s
account. She refused to return the money upon his request, telling Mr. Smith that she
would “think about it.” Appellant’s rationale for refusing to return the money was that she
believed she could better manage the funds than Mr. Smith. When asked at trial if she
intended to hide the transaction from Mr. Smith, appellant testified, “No. Basically he
knew about it.”
As noted above, following a two-day jury trial, the jury convicted appellant of one
count of theft of property valued between $25,000 and $100,000, leading to this timely
appeal. We shall provide additional facts as necessary.
3
DISCUSSION
I. THE EVIDENCE WAS SUFFICIENT TO SUPPORT THE THEFT CONVICTION
Appellant first argues that the evidence was insufficient to support her conviction
for theft. Specifically, she claims that the State failed to establish that she possessed the
requisite intent to deprive Mr. Smith of his money, and that she did not actually deprive
him of the money.
It is well-settled that an appellate court will not disturb a jury verdict if “after
viewing the evidence in the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979).
Generally, if there are evidentiary facts sufficiently supporting the inference
made by the trial court, the appellate court defers to that fact-finder instead
of examining the record for additional facts upon which a conflicting
inference could have been made, and then conducting its own weighing of
the conflicting inferences to resolve independently any conflicts it perceives
to exist.
State v. Smith, 374 Md. 527, 547 (2003).
In arguing that she lacked the intent to deprive Mr. Smith of his funds, appellant
asserts that she possessed a good faith belief that she could withdraw the funds to
“safeguard” them for her father due to his allegedly deteriorating mental state. In arguing
that she did not actually deprive Mr. Smith of his property, appellant notes that Mr. Smith
was able to immediately determine where his money was, and that, because she possessed
a good faith belief that she was simply protecting Mr. Smith’s assets, there was insufficient
evidence to show that Mr. Smith would not be able to eventually recover his funds.
4
Appellant further argues that Mr. Smith never placed explicit restrictions on her access to
the money. Appellant’s arguments are unpersuasive.
Md. Code (2002, 2021 Repl. Vol.), § 7-104 of the Criminal Law Article (“CR”)3
provides, in relevant part, that “(a) 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.” CR § 7-101(c) defines “deprive” as meaning:
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.
There is ample evidence on this record for the jury to have found the essential elements of
theft beyond a reasonable doubt. See Smith, 374 Md. at 533.
First, appellant clearly exerted unauthorized control over Mr. Smith’s property. Mr.
Smith testified that he relied on the funds in his account to pay medical expenses, and that
he “needed the money where [he] could get in touch with it right away.” He further testified
that he never gave appellant permission to take any money out of the account, that he never
wanted to invest his money, and that the only reason he added appellant’s name to his
3
Although we cite to the 2021 Replacement Volume, CR § 7-104 was last amended
in 2017.
5
account was so that she could pay his bills in the event his health issues incapacitated or
hospitalized him. Viewing this evidence in the light most favorable to the prosecution, a
jury could rationally conclude that appellant exerted unauthorized control over Mr. Smith’s
property. Id.
The evidence was also sufficient to show that appellant intended to deprive Mr.
Smith of his property. At trial, Mr. Smith testified that after he learned that appellant had
taken $85,000 from his account, he demanded that she return it. Despite requesting that
appellant return his money in April 2019, appellant had still not returned Mr. Smith’s
money as of the March 2020 trial. Appellant conceded this fact at trial, admitting that when
Mr. Smith requested his money, she told him she would “think about it.” Thus, the
uncontradicted evidence showed that appellant withdrew $85,000 from Mr. Smith’s
account, made the funds inaccessible to Mr. Smith, and refused to return the funds upon
request. Again, we conclude that a rational trier of fact could have found that appellant
intended to deprive Mr. Smith of his property. Id.
Nor are we persuaded by appellant’s claims that she never exerted unauthorized
control over the funds because Mr. Smith never placed explicit restrictions on his account,
or that appellant lacked the intent to deprive because she possessed a good faith belief that
Mr. Smith’s mental acuity was deteriorating. As to the explicit restrictions, Mr. Smith
testified that he did not believe such action was necessary because he was “dealing with
[his] blood daughter.” As to appellant’s good faith belief that she was protecting Mr.
Smith’s assets, the jury was free to reject that testimony. See Abbott v. State, 190 Md. App.
595, 616 (2010) (“Put another way, the jury is ‘free to discount or disregard totally [a
6
defendant’s] account of the incident[.]’” (quoting Binnie v. State, 321 Md. 572, 581
(1991))). Accordingly, we conclude that the evidence was sufficient to support appellant’s
theft conviction. Smith, 374 Md. at 547.
II. THE TRIAL COURT DID NOT ERR IN EXCLUDING EVIDENCE CONCERNING
APPELLANT’S DEFENSE
Appellant’s second issue for our review is whether the trial court erred in excluding
evidence that related to her perception of Mr. Smith’s mental acuity. Specifically,
appellant points to three instances during her direct examination in which the trial court
sustained objections to her testimony. As we shall explain, in all three instances, appellant
failed to meet her burden of establishing that the evidence—which was presumably
excluded as hearsay—was admissible. In fact, at no point during the trial did appellant
even raise the hearsay arguments she now presents in her brief. Even assuming, arguendo,
that the evidence was improperly excluded, we conclude that any error was harmless
beyond a reasonable doubt.
Maryland Rule 5-801(c) provides that “‘Hearsay’ is a statement, other than one
made by the declarant while testifying at the trial or hearing, offered in evidence to prove
the truth of the matter asserted.” Generally, hearsay evidence is not admissible at trial. See
Md. Rule 5-802. The Maryland Rules provide, however, that certain out-of-court
statements are admissible despite the rule against hearsay. See Md. Rule 5-803; 5-804;
5-805. When a party seeks to admit ostensible hearsay, that party bears the burden of
proving that the evidence is admissible. See Morten v. State, 242 Md. App. 537, 549–50
(2019) (noting that the proponent bears the burden of showing that a statement constituted
7
an exception to the rule against hearsay); see also Stewart v. State, 151 Md. App. 425, 447
(2003); Parker v. State, 365 Md. 299, 313 (2001).
The first statement appellant challenges on appeal concerned Mr. Smith’s mental
acuity. During her direct examination, appellant was explaining that, prior to her taking
Mr. Smith’s money, she had been helping him prepare papers in order to move him into an
assisted living facility. Appellant testified that “we had signed papers for [Mr. Smith] to
move into assisted living after his girlfriend called and told me that he needed to go into--.”
The prosecutor objected, and the trial court sustained the objection. Appellant attempted
to continue, stating, “After I was contacted about him needing to move --.” The prosecutor
again objected and the trial court sustained the objection.
According to appellant, the trial court improperly excluded this evidence on hearsay
grounds. On appeal, she argues that the court erred in excluding this testimony because
the statements in question were not offered for their truth and therefore did not constitute
hearsay. Despite her appellate assertion, the trial record is completely devoid of any
argument by appellant that this evidence did not constitute hearsay because it was not
offered for its truth. Indeed, at no point did appellant proffer any justification to the court
that the evidence in question was admissible. By failing to make any arguments explaining
why the evidence was admissible, appellant failed to meet her evidentiary burden. See
Morten, 242 Md. App. at 549–50.
The second statement at issue also purported to relate to Mr. Smith’s mental acuity.
Appellant testified, “There were concerning behaviors. I talked to his -- the doctors.
Someone had called me from a facility saying that--” at which point the prosecution
8
objected, and the trial court sustained the objection. Appellant’s counsel seemingly
acknowledged that appellant’s intended testimony constituted inadmissible hearsay,
advising appellant, “We’re not telling us what other people said to you. You became
concerned because at least you thought the -- what was happening to [Mr. Smith]?” Similar
to the first statement, appellant never proffered why the excluded evidence should have
been admitted, and therefore failed to meet her evidentiary burden. Id.
The last statement at issue concerned Mr. Smith’s financial ability to qualify for an
assisted living facility. Appellant testified, “[Mr. Smith] asked about whether he was going
to qualify because of his assets. The person at the assisted living facility said --.” The trial
court sustained the prosecutor’s objection. Again, appellant made no proffer at trial as to
why this evidence should not be excluded as hearsay, and therefore failed to preserve the
issue for our review. Id.
In summary, although appellant argues that all three excluded statements were
relevant to her “honest belief” defense, she never informed the trial court of the non-
hearsay purpose for which she wanted to introduce these statements.4 We note that, from
the trial court’s perspective, all three statements made by third parties to appellant would
4
In an effort to support her claim that she did not need to make a proffer to the court,
appellant points to several comments made by the court indicating that it did not believe
Mr. Smith’s mental state was relevant. Two of those comments by the court occurred
during Mr. Smith’s testimony as a rebuttal witness. We fail to see how these comments
could relate to the statements the court excluded during appellant’s earlier testimony.
Appellant also quotes an excerpt from the court’s ruling at the beginning of the trial on the
inadmissibility of a police report, a ruling that she does not challenge on appeal. We
likewise fail to see how that evidentiary ruling has any bearing on the court’s exclusion of
the three statements she complains were improperly excluded during her testimony later in
the trial.
9
seemingly be quintessential hearsay. Because she failed to make known her purpose for
introducing these statements, their admissibility is not preserved.
Even assuming that appellant properly preserved these issues for our review, and
that the trial court erred by excluding the three statements, we would have no difficulty
concluding that any error was harmless. It is well-settled in Maryland that
[W]hen an appellant, in a criminal case, establishes error, unless a reviewing
court, upon its own independent review of the record, is able to declare a
belief, beyond a reasonable doubt, that the error in no way influenced the
verdict, such error cannot be deemed ‘harmless’ and a reversal is mandated.
Such reviewing court must thus be satisfied that there is no reasonable
possibility that the evidence complained of—whether erroneously admitted
or excluded—may have contributed to the rendition of the guilty verdict.
Dionas v. State, 436 Md. 97, 108 (2013) (quoting Dorsey v. State, 276 Md. 638, 659
(1976)). We conclude that the exclusion of the evidence here in no way influenced the
verdict.
Regarding the first two statements, appellant was able to introduce other evidence
showing that she was concerned about Mr. Smith’s deteriorating mental acuity.
Specifically, she testified that Mr. Smith intended to purchase a sledgehammer in order to
destroy his furniture, that “[h]e wasn’t grasping what was going on[,]” and that he was
mostly eating “StoveTop dressing and milk” but declined to have appellant arrange Meals
on Wheels to deliver food to him. Thus, even assuming the trial court erred in excluding
evidence regarding appellant hearing from other people that Mr. Smith exhibited
concerning behaviors, appellant herself was permitted to testify why she believed Mr.
Smith’s mental state was deteriorating. As appellant notes in her brief, the purpose of
showing these concerning behaviors to the jury was to justify her good faith belief that she
10
was protecting Mr. Smith’s assets from himself. Because appellant was permitted to testify
as to her own opinions and experiences regarding Mr. Smith’s mental state, we conclude
beyond a reasonable doubt that the court’s exclusion of the first two statements in no way
influenced the verdict.
We are further bolstered in our conclusion that any error in excluding the two
statements concerning Mr. Smith’s mental acuity was harmless beyond a reasonable doubt
because, in closing argument, appellant’s counsel barely mentioned Mr. Smith’s mental
state as a justification for appellant’s actions. Instead, defense counsel’s closing argument
focused on the timing of the withdrawal in light of when appellant’s name was added to
the account, and that her leaving $10,000 in the account undermined any intent to
permanently deprive Mr. Smith of his money.
We reach the same conclusion as to appellant’s third challenged statement regarding
whether Mr. Smith’s assets would allow him to qualify for an assisted living facility.
Although the trial court sustained the State’s objection to appellant testifying what
someone from the assisted living facility said regarding his assets, immediately following
that ruling, appellant testified as follows:
--for that particular assisted living facility there was no qualification
requirements. However, in anticipation of planning for [Mr. Smith’s] future,
we talked about what look back period is which is basically a period of time
that some facility and some government agencies look at your assets to
determine whether or not you’re qualified.
In light of the fact that appellant was permitted to testify as to Mr. Smith’s assets
impacting his qualification for an assisted living facility, we conclude that the trial court’s
11
exclusion of the statement from someone at an assisted living facility was harmless beyond
a reasonable doubt.
III. THE COURT DID NOT HAVE THE AUTHORITY TO AWARD ATTORNEY’S
FEES UNDER THE RESTITUTION STATUTE
Appellant’s final argument on appeal is that the sentencing court erred in ordering
her to pay $6,000 in restitution. She essentially argues a per se rule that “attorney’s fees
are not recoverable as restitution in a criminal case” because a contrary holding “would
violate Maryland public policy.”
For background, we note that, prior to sentencing, the court held a hearing on Mr.
Smith’s request for restitution. At the hearing, William Byrd, Esquire, testified that Mr.
Smith retained him to recover the stolen funds. After being retained, Mr. Byrd
communicated with a Prince George’s County detective as well as with the bank where
Mr. Smith kept his money. Mr. Byrd explained that he successfully obtained a temporary
restraining order and a preliminary injunction to prevent appellant from dissipating Mr.
Smith’s funds. Mr. Byrd testified that Mr. Smith had paid $5,000 in legal fees, and that
Mr. Smith still owed an outstanding balance of $1,000. Appellant’s counsel did not
challenge the reasonableness of Mr. Byrd’s fees. Nor did appellant argue that the
attorney’s fees incurred were not a direct result of the crime. At the time of the restitution
hearing, Mr. Smith’s civil conversion case against appellant was still pending, but both
parties had agreed to stay the case pending the outcome of the restitution hearing.
In the circuit court, appellant’s counsel made a cursory argument concerning
restitution—he simply asserted that because attorney’s fees were not in “the list established
12
in Section [11]-603,” the court had no authority to award attorney’s fees as restitution.5
The court disagreed, finding that Mr. Smith was forced to hire an attorney as a direct result
of appellant unlawfully converting the funds in his bank account. Relying on Md. Code
(2001, 2018 Repl. Vol.), § 11-603(a)(2)(ii) of the Criminal Procedure Article (“CP”), the
court determined that Mr. Smith had suffered a “direct out-of-pocket loss,” and awarded
Mr. Smith $5,000 in restitution, and Mr. Byrd $1,000 representing the outstanding balance
due.
In her opening brief, appellant again argues that attorney’s fees are not eligible for
restitution under Maryland law. In addition to pointing out that attorney’s fees are not
enumerated as a recoverable expense under the restitution statute, appellant argues that
“attorney’s fees should not be recoverable as ‘out of pocket losses’ under CP
§ 11-603(a)(2)(ii) because this construction would violate Maryland public policy.”6 In
her view, because attorney’s fees are generally not recoverable in civil actions under the
“American Rule,” “this penal statute should not allow greater recovery for a victim via a
5
Defense counsel further argued that the court should decline to order restitution
because of appellant’s indigency.
6
We agree with the State’s observation that appellant, in her opening brief, did not
challenge the finding that the attorney’s fees were incurred as a direct result of the crime.
It is not surprising that appellant made no such appellate argument because defense counsel
likewise made no contention in the trial court that the attorney’s fees were not a direct
result of the theft. We therefore agree with the State that whether the attorney’s fees were
incurred as a “direct result” of the crime is not preserved for appellate review. In that same
vein, however, we reject the State’s reliance on In re G.R., 463 Md. 207, 214 (2019),
because that case involved the interpretation of “the meaning and scope of the term ‘direct
result’ in CP § 11-603(a).” Moreover, In re G.R. expressly construed the provisions of CP
§ 11-603(a)(1). Id. at 219. For the same reasons, the State’s reliance on Shannon v. State,
241 Md. App. 233 (2019), is misplaced.
13
criminal restitution award than the victim could recover in a civil case.”
As noted, the sentencing court awarded restitution pursuant to CP § 11-603(a)(2),
which provides, in relevant part, that:
(a) A court may enter a judgment of restitution that orders a defendant . . . to
make restitution in addition to any other penalty for the commission of a
crime . . . if:
....
(2) as a direct result of the crime or delinquent act the victim suffered:
(i) actual medical, dental, hospital, counseling, funeral, or burial
expenses or losses;
(ii) direct out-of-pocket loss;
(iii) loss of earnings; or
(iv) expenses incurred with rehabilitation[.]
In support of the court’s ruling, the State asserts that because Mr. Smith hired an
attorney to prevent “further, likely irreparable, losses,” the attorney’s fees incurred are
“akin to medical expenses and other direct out-of-pocket losses” which Maryland courts
have approved as restitution. The State further argues that the “American Rule” is
irrelevant in criminal restitution proceedings.7
7
Although appellant’s brief includes a summary assertion that “attorney’s fees are
not recoverable . . . under CP § 11-603(a)(1)” (“as a direct result of the crime or delinquent
act, property of the victim was stolen, damaged, destroyed, converted, or unlawfully
obtained, or its value substantially decreased”), the State did not address this argument in
its brief. The State’s failure to do so is understandable because the circuit court granted
restitution based on CP § 11-603(a)(2)(ii), not CP § 11-603(a)(1). In any event, we shall
not consider whether the court’s order for attorney’s fees could be sustained under CP §
11-603(a)(1). Klauenberg v. State, 355 Md. 528, 552 (1999) (stating that “arguments not
presented in a brief or not presented with particularity will not be considered on appeal”).
14
“We ordinarily apply the abuse of discretion standard in reviewing a trial court’s
order of restitution.” In re Cody H., 452 Md. 169, 181 (2017). However, we review de
novo questions involving statutory interpretation. Id.The canons of statutory interpretation are well-settled in Maryland. “When
undertaking an exercise in statutory interpretation, we start with the cardinal rule of
statutory interpretation—to ascertain and effectuate the General Assembly’s purpose and
intent when it enacted the statute.” Wheeling v. Selene Fin. LP, 473 Md. 356, 376 (2021)
(citing 75-80 Properties, L.L.C. v. RALE, Inc., 470 Md. 598, 623 (2020)). Our 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.” Id.(quoting Lockshin v. Semsker, 412 Md. 257, 274 (2010)).
When undertaking a statutory interpretation analysis, “our analysis begins with the
normal, plain meaning of the language of the statute. In doing so, we read the plain
meaning of the language of the statute ‘as a whole, so that no word, clause, sentence or
phrase is rendered surplusage, superfluous, meaningless or nugatory.’” Id. (internal
citation omitted) (quoting Koste v. Town of Oxford, 431 Md. 14, 25–26 (2013)). “[A]ll
statutory interpretation begins, and usually ends, with the statutory text itself for the
legislative intent of a statute primarily reveals itself through the statute’s very words.” Pete
v. State, 384 Md. 47, 57 (2004) (quoting Price v. State, 378 Md. 378, 387–88 (2003)). Our
review of the plain language is not exclusively limited to the provision in question. Berry
v. Queen, 469 Md. 674, 687 (2020) (citing Neal v. Balt. City Bd. of Sch. Comm’rs, 467 Md.
399, 415 (2020)). “Instead, ‘[t]he plain language must be viewed within the context of the
15
statutory scheme to which it belongs, considering the purpose, aim or policy of the
Legislature in enacting the statute.’” Id. (quoting Johnson v. State, 467 Md. 362, 372
(2020)).
If the words of a statute are “ambiguous and subject to more than one reasonable
interpretation, or where the words are clear and unambiguous when viewed in isolation,
but become ambiguous when read as part of a larger statutory scheme, a court must resolve
the ambiguity by searching for legislative intent in other indicia[.]” Blackstone v. Sharma,
461 Md. 87, 113 (2018) (quoting State v. Bey, 452 Md. 255, 266 (2017)). Even where the
statutory language is not ambiguous, however, “it is useful to review legislative history of
the statute to confirm that interpretation and to eliminate another version of legislative
intent alleged to be latent in the language.” Id. (quoting State v. Roshchin, 446 Md. 128,
140 (2016)). As a penal statute, CP § 11-603 must be narrowly construed. Addison v.
State, 191 Md. App. 159, 180–81 (2010); McCrimmon v. State, 225 Md. App. 301, 307
(2015). Nevertheless, if there is competent evidence to support the victim’s restitution
claim, a victim is presumed to have a right to restitution. CP § 11-603(b).
We begin with the statute’s plain language. The court awarded attorney’s fees
because it determined that the victim suffered a “direct out-of-pocket loss” pursuant to CP
§ 11-603(a)(2)(ii). The phrase “direct out-of-pocket loss” is not defined in the subtitle’s
definitional section, CP § 11-601. In considering the phrase within the context of the
statutory scheme, we note that CP § 11-603(a)(2)(i), (iii) and (iv) allow a victim to recover
as restitution: “actual medical, dental, hospital, counseling, funeral, or burial expenses or
losses” (CP § 11-603(a)(2)(i)); “loss of earnings” (CP § 11-603(a)(2)(iii)); and “expenses
16
incurred with rehabilitation” (CP § 11-603(a)(2)(iv)). Thus, we note that CP
§ 11-603(a)(2)(i), (iii), and (iv) relate to expenses incurred and losses sustained by a victim
as a result of physical or mental injury.
Our research reveals that CP § 11-603 traces its lineage to the enactment of chapter
581 of the Laws of Maryland (1977) that became Article 27, Section 640 of the Maryland
Code effective July 1, 1977. The purpose paragraph of the statute provided, in relevant
part:
For the purpose of providing that a court may order a criminal
defendant to make restitution of certain losses sustained by a victim or
certain property owned by a victim of the crime perpetrated by the
defendant[.]
(Emphasis added). Article 27, Section 640(b) provided:
Upon conviction for a crime where property of another has been
stolen, converted, unlawfully obtained, or its value substantially decreased
as a direct result of the crime, or where the victim suffered actual medical
expenses, direct out of pocket losses, or loss of earning as a direct result of
the crime, the court may order the defendant to make restitution in addition
to any other penalty provided for the commission of the crime.
(Emphasis added).
The initial restitution statute enacted in 1977 evidences an intent to distinguish
between property crimes and crimes involving injury to a person. As noted in Gilroy v.
SVF Riva Annapolis LLC, the word “‘Or’ generally has a disjunctive meaning, that is, the
word is used to indicate ‘an alternative between unlike things, states, or actions[.]’” 234
Md. App. 104, 111 (2017) (quoting WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY
UNABRIDGED 1585 (1986)). Although this interpretation is not absolute, “Maryland courts
generally interpret ‘or’ in the disjunctive sense when they construe statutes.” Id. at 111.
17
Thus, from a grammatical standpoint, Article 27 Section 640(b) distinguishes between
restitution for crimes “where property of another has been stolen, converted, unlawfully
obtained, or its value substantially decreased,” and crimes “where the victim suffered
actual medical expenses, direct out of pocket losses, or loss of earning.”
Section 640(f), as enacted in 1977, supports the distinction between property crimes
and personal injury crimes:
An order of restitution may not preclude the owner of the property or
the victim who suffered personal physical or mental injury or out of pocket
loss of earnings or support from proceeding in a civil action to recover
damages from the defendant. A civil verdict shall be reduced by the amount
paid under the criminal restitution order.
(Emphasis added). We note that the language in § 640(f) concerning “personal physical or
mental injury” was also included in the initial version of HB 1680 related to Section 640(b),
but that language was ultimately deleted. See House Bill file for HB 1680 (regular session
1977) p. 68/69. It is apparent from the statute’s purpose paragraph and adopted text that
the legislature sought to distinguish property crime victims from victims who sustain
physical or mental injury. That the legislature struck “personal physical or mental injury”
in subsection (b) in favor of “actual medical expenses” does not undermine that conclusion,
particularly in light of the retention of language in CP § 11-603(c) of the current statute
that distinguishes between “property owner or the victim who suffered personal physical
or mental injury.”
In 1982, the General Assembly amended Art. 27 § 640 because of its disagreement
18
with the Supreme Court of Maryland’s8 decision in Montgomery v. State, 292 Md. 155(1981), where the Court held that insurers and similar third parties could not be awarded
restitution under the statute. The 1982 amendments therefore had no substantive effect on
the provisions of subsection (b) that are relevant in the case at bar, but the 1982 amendment,
for the first time, separated property losses from other losses:
(1) On conviction of a crime, the court may order the defendant to make
restitution in addition to any other penalty for the commission of the
crime, if:
(i) Property of the victim was stolen, converted, unlawfully obtained,
or its value substantially decreased as a direct result of the crime;
(ii) The victim suffered actual medical expenses, direct out-of-pocket
losses, or loss of earnings as a direct result of the crime; or
(iii) The victim incurred medical expenses that were paid by the
Department of Health and Mental Hygiene or any other
governmental entity.
The statute was next amended as part of the Victims’ Rights Act of 1997. Relevant
here, the legislature amended Art. 27 § 640(b)(1)(ii) to add dental, hospital, counseling,
funeral, and burial expenses as recoverable restitution. Consequently, after passage of the
Victims’ Rights Act of 1997, Section 640(b)(1)(ii) provided for restitution where “[t]he
victim suffered actual medical, dental, hospital, counseling, funeral, burial expenses, any
other direct out-of-pocket losses, or loss of earnings as a direct result of the crime.”
Significantly, “direct out-of-pocket losses” and “loss of earnings” were included in the
8
On December 14, 2022, the name of the Court of Appeals was changed to the
Supreme Court of Maryland.
19
same paragraph as actual medical, dental, and other expenses sustained by the victim as a
result of the criminal or delinquent act.
The statute was amended without substantive change as part of the Code revision
creating the Criminal Procedure Article (effective October 1, 2001). See Grey v. Allstate
Ins. Co., 363 Md. 445, 450 n.1 (2001). However, as part of the Code revision process, the
statute further separated into distinct subsections the types of expenses and losses that a
victim could recover:
(a)(2) As a direct result of the crime or delinquent act, the victim suffered:
(i) Actual medical, dental, hospital, counseling, funeral, or burial
expenses;
(ii) Any other direct out-of-pocket loss; or
(iii) Loss of earnings[.]
Finally, in 2005, the General Assembly amended CP § 11-603(a)(2) to make clear
that the court was authorized to award “expenses incurred with rehabilitation.” S.B. 873,
2005 Leg., Reg. Sess. (Md. 2005). Accordingly, since 2005, CP § 11-603(a)(2) has
delineated four categories of recoverable losses and expenses directly attributable to a
criminal or delinquent act:
(i) actual medical, dental, hospital, counseling, funeral, or burial expenses
or losses;
(ii) direct out-of-pocket loss;
(iii) loss of earnings; or
(iv) expenses incurred with rehabilitation.
20
Our review of the plain statutory text and legislative history leads us to conclude
that CP § 11-603(a)(2)(i)-(iv) exclusively authorizes a court to award restitution for a
victim’s expenses and losses resulting from physical or mental injury. Nothing in the
legislative history or caselaw construing the statute would support the view that a property
crime victim could recover actual medical and hospital expenses, loss of earnings, or
rehabilitation expenses as set forth in subsections (i), (iii) and (iv) of the statute. It would
therefore be illogical to conclude that subsection (ii)’s authorization for direct out-of-
pocket loss would be applicable to victims of theft and other property crimes, but the
adjacent subsections would not. See Lawrence v. State, 475 Md. 384, 406–07 (2021)
(noting that statutory interpretation “seek[s] to avoid constructions that are illogical,
unreasonable, or inconsistent with common sense” (quoting Della Ratta v. Dyas, 414 Md.
556, 567 (2010))).
Our conclusion is bolstered by the doctrine of ejusdem generis, a canon of statutory
construction which applies where
(1) the statute contains an enumeration by specific words; (2) the members
of the enumeration suggest a class; (3) the class is not exhausted by the
enumeration; (4) a general reference supplement[s] the enumeration, usually
following it; and (5) there is not clearly manifested an intent that the general
term be given a broader meaning than the doctrine requires.
In re Wallace, 333 Md. 186, 190 (1993) (quoting 2A Sutherland Stat. Const. § 47.18, at
200 (5th ed. 1992)). Where these conditions are present, “the general words will usually
be construed to include only those things or persons of the same class or general nature as
those specifically mentioned.” Id. (quoting Giant of Md. v. State’s Att’y, 274 Md. 158, 167
(1975)). “In addition, ejusdem generis is applied ‘more strictly in the construction of penal
21
statutes . . . since penal statutes shall be narrowly construed.’” Id. at 191 (alteration in
original) (quoting Giant of Md., 274 Md. at 167–68).
Of the four categories of restitution delineated in CP § 11-603(a)(2), subsection
(ii)’s “direct out-of-pocket loss” represents the only category defined by a general word or
phrase. Subsections (i), (iii), and (iv) delineate specific recoverable expenses and losses
that suggest a class of expenses and losses likely to be sustained by victims of crimes that
result in physical or mental injuries. Moreover, the class is not exhausted by the
specifically enumerated items, as the statute does not include, for example, transportation
expenses related to medical appointments or the installation of a ramp outside the home of
a victim who requires a wheelchair as a result of his or her injuries. In our view, the
legislature adopted the general phrase “direct out-of-pocket loss” in CP § 11-603(a)(2)
because it intended to authorize courts to award restitution for out-of-pocket losses
resulting from physical and mental injuries that were not specifically enumerated in
subsections (i), (iii), and (iv). See also Emmert v. Hearn, 309 Md. 19, 25 (1987) (noting
that “[t]he maxims [of noscitur a sociis and ejusdem generis] mean that the meaning of a
word is or may be known from the accompanying words so that, under the rules, general
and specific words, capable of analogous meaning, when associated together, take color
from each other, so that general words are restricted to a sense analogous to less general”
(quoting Leroy v. Kirk, 262 Md. 276, 283 (1971))).
In short, CP § 11-603(a)(2)(i)–(iv) apply exclusively to crimes involving physical
and/or mental injury. We therefore conclude that the court erred in awarding Mr. Smith
22
attorney’s fees he incurred to recover his funds pursuant to CP § 11-603(a)(2)(ii)’s
provision for direct out-of-pocket loss.
JUDGMENT OF CONVICTION AFFIRMED.
JUDGMENT FOR RESTITUTION REVERSED.
COSTS TO BE EQUALLY DIVIDED BETWEEN
THE PARTIES.
23