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Wagner v. State

Court of Special Appeals of Maryland

October 30, 2014


Appeal from the Circuit Court for Baltimore County. Judith C. Ensor, Judge.

Argued by: David P. Kennedy (Paul B. DeWolfe, Public Defender on the brief) all of Baltimore, MD for Appellant.

Argued by: Ryan R. Dietrich (Douglas F. Gansler, Attorney General on the brief) all of Baltimore, MD for Appellee.

Woodward, Wright, Berger, JJ. Opinion by Wright, J.


Page 901

[220 Md.App. 176] Wright, J.

Appellant, Jacqueline Wagner (" Wagner" ), appeals her conviction in the Circuit Court for Baltimore County for theft and embezzlement for taking money from a joint bank account on which she was named a joint owner with her father. On February 14, 2013, Wagner was charged by information with theft of more than $500.00 and fraudulent misappropriation by a fiduciary. After a two-day bench trial on October 17 and 18, 2013, the trial court found Wagner guilty of both counts. At sentencing on October 21, 2013, the trial court sentenced Wagner to eight years with all but 18 months suspended for theft (with the misappropriation conviction merging into the theft count) and five years' unsupervised probation. After her motion for a new trial was denied on November 21, 2013, Wagner filed this appeal on December 11, 2013.

On appeal, Wagner asks: if a person is added to a bank account as a joint owner, without the intent that the person [220 Md.App. 177] have an ownership interest, can that person be guilty of theft from that joint bank account?[1]

Page 902


Marion Wagner (the " victim" ) was 84 years old at the time of trial. He had three daughters, Karen, Jacqueline, and Kathleen. The victim worked for Colonial Pipeline for 33 years until his retirement in 1994. For most of his life, he lived in a row house on South Curley Street with his wife, Jean, who died in 2005. While Jean was alive, she handled the family finances. After Jean passed away, the victim attempted to handle his finances himself. Eventually, he asked one of his three daughters, Jacqueline Wagner, to assist him. At the time, the victim's assets included $200,000.00 in an IRA account with American Century (the " IRA" ) and a checking and savings account with Provident Bank[2] (the " Account" ). The victim received a monthly pension check of $88.00, and he also received Social Security.

On July 29, 2005, the victim added Wagner as a joint owner to the Account.[3] The victim testified that he did so in case he was unable to get the money himself:

STATE: Okay. Now in 2005, you indicated that you put [Wagner] on your account. Why did that happen?
[220 Md.App. 178] [VICTIM]: That happened because I had my bank account with my wife's name on it, but since she passed away, I wanted somebody else to be able to get the money if I couldn't get it myself. So I asked my daughter if I could put her name on the account and this is my money in there, but not hers, and she agreed to do that.
STATE: What specific instructions did you give her about putting your, her name on your account?
[VICTIM]: The only reason I did that was in order for me to get my money out if I couldn't get it, would she be able to get it for me.
STATE: Okay.
[VICTIM]: That was my money.

Wagner agreed and testified that " I was put on his account in case anything happened to him[.]" The victim retained the checkbook for the Account, but Wagner had an ATM card to access the funds.[4]

In 2006, the victim mortgaged his home for $87,000.00 to help Wagner's business of transporting people to and from Bingo parlors and Delaware Park casino.[5] The victim testified that the mortgage proceeds were a loan to Wagner, and he believed

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that Wagner would make the mortgage payments to repay the loan.

In January 2007, the victim moved from his home on Curley Street in Baltimore City to Wagner's home in Baltimore County after his home was damaged by fire.[6] The victim's [220 Md.App. 179] house was in Canton, where houses were selling for up to $400,000.00. The plan was to repair the house and rent it out after the repairs were completed. He lived with Wagner until late 2009 without paying rent or household bills.

Before the victim left Wagner's home, he received a statement from his bank informing him that his mortgage on the Curley Street house had not been paid and threatening foreclosure. The victim called the bank to inquire about the notice and was informed that Wagner had not paid the mortgage and that $60,000.00 was owed to the bank. When he asked about how much money he had in the Account, the victim " was astonished to find out that it was nothing."

The victim left Wagner's house and went to live with one of his other daughters, Kathy. Over the next several months, he began collecting copies of his bank records to find out what happened to the money in the Account. In 2010, the victim went to the district court commissioner's office and filed a complaint against Wagner.[7]

After he filed his complaint, the victim met with Detective Chenoweth of the Baltimore County Police Department fraud unit. From what we can ascertain from the record, Det. Chenoweth's investigation revealed that between May 8, 2006 and September 30, 2009, the Account contained money from the mortgage, withdrawals from the IRA, Social Security checks, and other sources.[8] And, during that same time, $181,670.09 was withdrawn from the IRA, and $251,645.83 in [220 Md.App. 180] total was taken from the Account. The victim testified at trial that taken from the Account, without his permission, was approximately:

1. $12,000.00 in cash withdrawals;

2. $42,000.00 in wire transfers to Wagner's personal account (which she jointly owned with the victim);

3. $99,000.00 in ATM withdrawals;
4. a $12,000.00 wire transfer to KLMJ Inc.; [9] and
5. a $4,000.00 wire transfer to Smythe Transportation.[10]

Wagner testified that she never took money from the IRA without her father's authorization and denied signing his name

Page 904

on the requests for withdrawals from his IRA. Wagner denied taking anything from the Account for her own benefit -- she stated the withdrawals were at her father's direction when he needed money to go gambling. Wagner testified that the $87,000.00 from the mortgage on her father's house was a gift, and that she paid the mortgage when she had the money do so. She acknowledged that the general contractor for the work on her father's house did not get paid.

After a two-day trial, the court found that from May 8, 2006 to September 30, 2009, Wagner took $122,355.00 from the Account.[11] The trial judge stated that she had

absolutely no question in [her] mind, none, that [Wagner] took and used the money in [the Account] for her own purposes. I am truly well beyond having a reasonable [220 Md.App. 181] doubt. I have no doubt. I reject factually as strongly as I can that [Wagner] withdrew funds at [the victim's] request[.]

After reaching its factual findings, the trial court indicated that it believed the case presented a legal issue. As the trial judge noted, " I really think factually there's no question about what happened. I think it's much more of a legal question. . . . I have, frankly, spent the majority of my time, trying to figure out what is, what are the consequences or ramifications of a joint account."

In reaching her legal findings, the trial judge noted that she reviewed Milholland v. Whalen, 89 Md. 212, 43 A. 43 (1899) (" Milholland II " ), superseded by statute, Md. Code (1980, 2011 Repl. Vol.), § 1-204 of the Financial Institutions Article (" FI" ); Kornmann v. Safe Deposit & Trust Co. of Baltimore, 180 Md. 270, 23 A.2d 692 (1942); Haller v. White, 228 Md. 505, 180 A.2d 689 (1962), superseded by statute, FI § 1-204; Hamilton v. Caplan, 69 Md.App. 566, 518 A.2d 1087 (1987); Stanley v. Stanley, 175 Md.App. 246, 927 A.2d 40 (2007); and Perhamsky v. Flinkman, Civil No. WDQ-09-1756, *5 (D. Md. July 1, 2010).[12] According to the trial judge, the review of these cases revealed:

[T]here is, in fact, a rebuttable presumption [of joint ownership]. There's a difference in ownership and ability to withdraw and one starts with the presumption that in a case where there's joint ownership with a right of survivorship, which is created by the titling of the account, that it's joint owners. But it can be rebutted and the burden is on the person who wants to rebut it. . . . I'm reading from Haller v. White, it says we think the most significant fact is the form of the account, which on its face creates a joint [220 Md.App. 182] tenancy. It is true that this raises only a rebuttable presumption but the burden is upon the party seeking to rebut it. In the Stanley case, the common law presumption of joint ownership with the right of survivorship created by the titling of the

Page 905

bank account as joint can be overcome by evidence that the owner's intent was not to create such rights in the titleholder. I have really struggled, I make no bones about it, over this issue of can you actually have a situation where there's theft when the titling is joint owners and I come down on the side that you can and that is because I am persuaded that even if one starts with this presumption that it's joint owners, it can be rebutted and I have found in this case, as I said, it's, it's really for me, I have to confess, it's not beyond a reasonable doubt, it is beyond all doubt.

The trial judge reiterated her findings at sentencing.

I understand completely that this is titled a joint account and I understand that, pursuant to the Financial Institutions Article, that means either one may withdraw money. But I have also found that they each put the other on their accounts for the sole purpose of allowing the non-incapacitated person to get the funds in the event someone was incapacitated. . . . when I read the cases that I cited to you on Friday, including Perhanski v. Flipman [sic] and Stanley v. Stanley and your Korman [sic] case, I am understanding from those cases that there is a distinction between ownership and ability to withdraw and the agreement that these people had was an agreement that the money was only to be withdrawn by the other one, in this case, [Wagner] was only to withdraw [the victim's], which she repeatedly said was his money[.] . . . that's the agreement they made among themselves and, while I understand she could, pursuant to Financial Institutions, withdraw money from a joint account, the agreement that these people had was that she would only withdraw it for his benefit.

[220 Md.App. 183] Discussion

Wagner was convicted of theft based on her act of withdrawing funds from a joint account to which both she and the victim were parties and using those funds for her own benefit. Wagner does not dispute the fundamental factual findings made by the trial court: (1) that the victim added Wagner as a holder of his account for the sole purpose of allowing Wagner to access funds in his account for the victim's benefit, (2) that Wagner understood that the funds in the joint account belonged to the victim, and (3) that Wagner withdrew funds from the account on her own accord and used them for her own benefit.

Wagner instead argues that the above factual findings are irrelevant because, as a party to the joint account, she was an " owner" of the property, and thus could not be convicted of stealing her own property. Wagner's argument is based on FI § 1-204(f), which states as follows:

Unless the account agreement expressly provides otherwise, the funds in a multiple-party account may be withdrawn by any party or by a convenience person for any party or parties, whether or not any other party to the account is incapacitated or deceased.

In essence, Wagner claims that because she, as a party to the account, was authorized under FI § 1-204(f) to withdraw funds from that account, she was also authorized to use these funds for her own use. Wagner's strained reading of FI § 1-204(f) fails.

As the trial court found, the language in FI § 1-204(f) relates only to the relationship between the parties to an account as it affects the financial institution. In other words, FI § 1-204(f) governs only an account holder's ability to access funds from a joint account, and it does not relate to the underlying ownership interests in

Page 906

those funds. Thus, by referencing only a party's withdrawal rights, and not any ownership interests, FI § 1-204(f) does not affect or supersede any relationship or agreement between the parties themselves relating to the ownership of the funds in an account.

[220 Md.App. 184] I. The Statutes at Issue

Wagner's question requires us to examine two statutes and determine their meaning. Because this question demands that we review Maryland statutory law, " our Court must determine whether the trial court's conclusions are 'legally correct' under a de novo standard of review." Schisler v. State, 394 Md. 519, 535, 907 A.2d 175 (2006) (citations omitted). As to the trial judge's factual findings, we " will reverse only for clear factual error. A factual finding is clearly erroneous if there is no competent and material evidence in the record to support it." Hoang v. Hewitt Ave. Ass'n, LLC, 177 Md.App. 562, 576, 936 A.2d 915 (2007) (citations omitted).

" [T]he starting point in every case involving construction of a statute is the language itself." Kaczorowski v. Mayor & City Council of Balt., 309 Md. 505, 514, 525 A.2d 628 (quoting Watt v. Alaska, 451 U.S. 259, 265, 101 S.Ct. 1673, 68 L.Ed.2d 80 (1981)).

In determining the meaning and scope of a legislative enactment, the Court considers the language thereof in its natural and ordinary connotation. If there by no obscurity or ambiguity on the face of it, there is no necessity for construction, and the language will be accorded its apparent meaning. Where, however, the words of a statute are of doubtful meaning, the Court, in determining legislative intent, will consider not only the usual and literal meaning of such words, but will also consider their meaning and effect in the light of the setting, the objectives and the purposes of the enactment.

League v. State, 1 Md.App. 681, 687, 232 A.2d 828 (1967) (citations omitted). We list each statute here as a precursor to our discussion.

A. Maryland's Consolidated Theft Statute

Md. Code (2002, 2012 Repl. Vol.), § 7-104 of the Criminal Law Article (" CL" ) states:

Unauthorized control over property

[220 Md.App. 185] (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;
(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.[13]

The definition of " owner," provided in CL § 7-101(h), is particularly pertinent to our discussion:


(h) Except as otherwise expressly provided in this part, " owner" means a person, other than the offender:

(1) who has an interest in or possession of property regardless of whether the person's interest or possession is unlawful; and

Page 907

(2) without whose consent the offender has no authority to exert control over the property.

B. The Financial Institutions Article

The parties also draw our attention to FI § 1-204, Transfer of account on death, which states:

(a) A provision in an account agreement for a transfer on death in compliance with this section is nontestamentary and shall be effective according to the provisions of this section. Transfers pursuant to this section are effective in the form and manner prescribed by this section and are not to be considered testamentary.
. . .
(f) Unless the account agreement expressly provides otherwise, the funds in a multiple-party account may be withdrawn [220 Md.App. 186] by any party or by a convenience person for any party or parties, whether or not any other party to the account is incapacitated or deceased.

Even though FI § 1-204's purpose is to govern the relationship between a financial institution and its depositors, there is no other statute that addresses " multiple-party" bank accounts.[14]

II. Statutory Analysis

The majority of the case law discussion on the question of ownership of joint bank accounts has been in the context contemplated by FI § 1-204: ownership upon death of one of the parties. We previously recognized in Stanley, 175 Md.App. at 265, that FI § 1-204 does govern the ownership interests of joint owners upon the death of a co-owner and abrogates all of the case law before it related to the issue, but we have not determined the applicability of FI § 1-204 to the rights of joint owners while all owners are still living, as is the case here. Our charge here is to decide if Wagner owned the account within the meaning of CL § 7-104.

A. Ownership of a Bank Account

Like the trial judge below, we start with the question of who was an actual owner of the bank account. Whether titling a bank account as " joint owners" creates equal ownership in each of the joint owners is key to our findings. In Barker v. Aiello, 84 Md.App. 629, 634-37, 581 A.2d 462 (1990), we outlined relevant case law involving litigation to resolve ownership [220 Md.App. 187] rights of various parties upon the death of one of the parties to the account:

Maryland distinguishes between joint bank accounts and joint trust accounts. Joint bank accounts do not contain trust language, and the depositor retains legal and equitable title to the monies. Whalen v. Milholland, 89 Md. 199, 43 A. 45 (1899) ( Milholland I ). In order for a donee-beneficiary to inherit there must be a perfected inter vivos gift by the donor-decedent. Otherwise, locus penitentiae remains in the owner who then retains control and dominion over the funds. 89 Md. at 201, 43 A. 45. In Milholland I, the passbook entry read:

Page 908

" Elizabeth O'Neill and Mary Whalen. Joint owners. Payable to the order of either or the survivor." The court held that Mrs. O'Neill did not make a valid and effective gift to Mrs. Whalen, despite the wording " joint owners," because Mrs. O'Neill retained the passbook and there was no effective delivery. The balance in the account was held an asset of the estate. Milholland I, 89 Md. at 202, 43 A. 45.
A trust account does not necessarily contain trust language, either. Pearre v. Grossnickle, 139 Md. 274, 279, 115 A. 49 (1921). The donor's act creates the trust, but it is the donor's " intention with which he does the act that is material." Milholland v. Whalen, 89 Md. 212, 216, 43 A. 43 (1899) ( Milholland II ). The general rule regarding trust accounts in Maryland, stemming from Milholland II and its progeny, is that a revocable trust account is presumed to exist where there is an unexplained passbook entry containing trust language, " because it indicates an intention to establish a trust; but this may be rebutted." 89 Md. at 216, 43 A. 43. The declaration of a trust transfers legal title to the trustee, and the beneficial interest passes to the cestui que trust. 89 Md. at 216, 218, 43 A. 43. If the trust is challenged by an interested party or the estate's administrator, the burden of proof lies with the challenger. Where a confidential relationship can be shown between the donor and the beneficiary, the burden shifts to the beneficiary to show that there was no undue influence. Coburn v. Shilling, 138 Md. 177, 199, [220 Md.App. 188] 113 A. 761 (1921); Bollack v. Bollack, 169 Md. 407, 416, 182 A. 317 (1936); Wenger, Adm. v. Rosinsky, 232 Md. 43, 50, 192 A.2d 82 (1963).
The passbook entry in Milholland II differed from that in Milholland I : " Metropolitan Savings Bank, in account with Miss Elizabeth O'Neill. In trust for herself and Mrs. Mary Whalen, widow, joint owners, subject to the order of either; the balance at the death of either to belong to the survivor." (Emphasis supplied.) After stating the rule, the court found that Mrs. O'Neill intended to create a trust and that the funds passed to Mrs. Whalen, not by right of survivorship or by an inter vivos gift, but because Mrs. O'Neill held the money in trust for Mrs. Whalen should the latter happen to outlive her. Milholland II, 89 Md. at 218, 43 A. 43.
* * *
The intent of the donor is a factual issue, and is determined at the time the entry in the passbook was made. Ragan v. Kelly, 180 Md. at 331, 24 A.2d 289. The case law generally focuses on the intent of the donor as to the creation of the trust itself; some cases, however, also allude to the intent of the donor as to the result of the trust's creation at the time it was created.

(Emphasis in original) (internal footnotes omitted).

Based on the language in Barker as derived from Milholland I and II, the issue of ownership becomes whether the victim gifted the money in the account to Wagner by adding her name to the Account's title, instead of creating a trust account. The following language in Jones v. Hamilton, 211 Md. 371, 376-77, 127 A.2d 519 (1956) is instructive:

In Whalen v. Milholland, 89 Md. 199, 202, 203, 43 A. 45, 47, 44 L.R.A. 208, the Court said: 'But much stress was laid on the words 'joint owners,' which were subsequently stamped on the pass book. Of themselves these two words, as we said in Gorman v. Gorman, supra, are not sufficient, in a deposit made in a Savings Bank, to transfer title to the

Page 909

fund; that is, they are not sufficient to convert the fund [220 Md.App. 189] from being the property of the person to whom it belongs into the property of the original owner and another individual. Whatever their technical import may be when employed in other instruments, they cannot operate to vest an ownership, to the extent of one-half of the fund in some one else, when, under the terms and according to the legal effect of the very paper in which they are used, the depositor retains such a dominion over the fund deposited that he may at any moment withdraw the whole of it. * * * Always bearing in mind that the fund belonged to only one of the parties named as joint owners, and that you are searching for evidence tending to show a gift of that fund, or of a part of it, to a person who confessedly, in the first instance, owned none of it, the control retained over the whole of it by the original owner, under the very terms of the deposit which he makes, is of great significance in repelling any inference that he intended to part with his ownership in any way whatever. Particularly is this so when the original owner retains possession of the pass book, and when the deposit is made in a Savings Bank, by the rules of which the book must be produced before the deposit can be withdrawn.'
The Court went on to point out that there would be an effective gift of the money on deposit under certain circumstances, saying: 'Where, however, it appears that the original owner purposely deposited the fund to his and another's credit, as joint owners, retaining the pass book so as to continue his dominion over the money, a distinct, unequivocal delivery of the book to the other person named as co-owner, with the intention to part with the ownership, and to make an irrevocable gift of the fund and an acceptance of it by the donee, would pass the whole interest therein to the donee, because there would then be no inconsistency between the legal effect of the entry on the book, and the right in which the donee of the book could claim the deposit, and there would no longer be a locus penitentiae in the original owner. Every element of a perfected gift would then be present.'
[220 Md.App. 190] It was noted, however, that if the intent was to make the purported donee of the book an agent, and delivery of the book was to him in his capacity as agent, the result would be otherwise because title to the deposit would not pass.

(Emphasis in original).

This Court in Stanley reviewed the state of the law prior to the enactment of FI § 1-204. From our analysis of the act's legislative history, we concluded that the act " was intended to alter the common law," including Milholland I, Milholland II, and their progeny, as it applies to all deposit accounts established in the name of one or more parties, whether in trust with survivorship rights or payable on death, with a financial institution. In the context of death of one of the parties, the rebuttable presumption of a perfected gift created by adding a party as a joint owner that was available at common law was abrogated by statute, regardless of the entitlement of a party to make withdrawals. Stanley settled the question of the limited application of FI § 1-204 -- that of survivorship rights upon the death of one of the parties to the account, but not the issue to be addressed in this appeal.

B. The Victim's Intent

In approaching ownership of a bank account prior to the death of one of the parties, the current state of the law requires us to look to the intent of the victim and determine if he intended to make an irrevocable gift of ownership of

Page 910

the account. Thus, the trial judge was correct in finding that titling an account as " joint owners" presumptively creates an ownership interest in both parties, but that presumption can be rebutted by evidence of a contrary intent of the original owner of the account.

Based on the record below, the trial judge had substantial ...

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