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Wagner v. State

Court of Appeals of Maryland

December 17, 2015


Argued September 28, 2015.

As Corrected March 15, 2016.

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[Copyrighted Material Omitted]

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Certiorari to the Court of Special Appeals (Circuit Court for Baltimore County, Case No. 03-K-13-001058), Judith C. Ensor, JUDGE.

ARGUED BY Wyatt Feeler, Assistant Public Defender (Paul B. DeWolfe, Public Defender of Maryland of Baltimore, MD) on brief FOR PETITIONER.

ARGUED BY Susannah E. Prucka, Assistant Attorney General (Brian E. Frosh, Attorney General of Maryland of Baltimore, MD) on brief FOR RESPONDENT.

ARGUED BEFORE Barbera, C.J., Battaglia, Greene, Adkins, McDonald, Watts, Harrell, Jr., Glenn T. (Retired, Specially Assigned), JJ. Opinion by Watts, J. Barbera, C.J., Battaglia and Adkins, JJ., dissent.


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[445 Md. 409] Watts, J.

This case arises from the circumstance that a father and daughter were parties to a multiple-party bank account, and, without the father's permission, the daughter removed funds from the account to use for her own benefit, allegedly pursuant to Md. Code Ann., Fin. Inst. (1980, 2011 Repl. Vol.) (" FI" ) 1-204(f).[1]

We decide: (I) whether the evidence was sufficient to support a conviction for theft, and whether an individual can commit theft from a joint or multiple-party bank account to which the individual is a party; and (II) whether the evidence was sufficient to support a conviction for embezzlement (fraudulent misappropriation by fiduciary).

We hold that: (I) the evidence was sufficient to support the conviction for theft where the individual willfully or knowingly obtained or exerted unauthorized control over funds--belonging to another--contained in a joint bank account without the other's knowledge or consent and with the intent to deprive the other of those funds; statutorily granted authority permitting a party to a joint or multiple-party account to access and withdraw funds in the account does not confer ownership of the funds in the account to that party such that, as a matter of [445 Md. 410] law, the party cannot be guilty of theft; and (II) the evidence was sufficient to support the conviction for embezzlement (fraudulent misappropriation by fiduciary).


On February 14, 2013, the State, Respondent, charged Jacqueline Wagner (" Wagner" ), Petitioner, with theft of property with a value of at least $500[2] and

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embezzlement (fraudulent misappropriation by fiduciary). On October 17 and 18, 2013, the Circuit Court for Baltimore County (" the circuit court" ) conducted a bench trial, at which the following evidence was adduced.

As a witness for the State, Marion Wagner (" Father" ), who was eighty-four years old at the time of trial, testified as follows. Father had three daughters, including Wagner. For most of his life, Father lived in a row house on South Curley Street in Baltimore City with his wife, Jean, who died in 2005. While Jean was alive, she handled the family finances because " [s]he was very good with figures[.]" After Jean's death, Father handled his own finances for a short period of time before asking Wagner to assist him. At that time, Father had an individual retirement account (" the IRA" ) with American Century Investments containing nearly $200,000, and a checking account and a savings account (collectively, " the Account" ) with Provident Bank containing " a few thousand" dollars.[3] [445 Md. 411] Father also received a monthly pension check in the amount of $88 and income from the Social Security Administration.

On July 29, 2005, Father added Wagner to the Account as a " joint owner." At trial, as to that event, the following exchange occurred:

[PROSECUTOR]: Okay. Now, 2005, you indicated that you put [] Wagner on your account. Why did that happen?
[FATHER]: 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 [Wagner] 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.
[PROSECUTOR]: Well, what specific instructions did you give her about putting your, her name on your account?
[FATHER]: The only reason I did that was in order for me to get my money out if I couldn't go get it, would she be able to get it for me.
[FATHER]: That was my money.

Father retained the checkbook for the Account, and " never knew [that he] had" an ATM card. Father did not let anybody else have the checkbook for the Account except when he gave it to Wagner on one occasion.

In 2006, Father mortgaged his house for $87,000,[4] and loaned the proceeds to Wagner to help with Wagner's business of transporting people to and from bingo halls.[5] Father expected Wagner to " pay [the loan] back completely."

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[445 Md. 412] In January 2007, after his house was damaged by a fire, Father moved into Wagner's home in Baltimore County. Father received $40,000 from his insurance company to pay for the cost of repairs to his house.[6] Father put Wagner in charge of the repairs and instructed " her to do whatever she want[ed] to get the house in shape" and " to pay the contractor whatever [s]he ha[d] to pay." In 2009, the repairs to Father's house were finished. Wagner " talked [Father] into letting [his] granddaughter and her boyfriend [] move into [Father's] house" ; as a result, Father kept living with Wagner. In late 2009, Wagner told Father that he needed to move out, so he moved out of Wagner's house and moved in with one of his other daughters.[7]

Before moving out of Wagner's house, Father received a statement from his bank informing him that the mortgage on his house had not been paid; the bank threatened to initiate foreclosure proceedings. After receiving the statement, Father telephoned his bank and discovered that the mortgage had not been paid and that he owed his bank $60,000.[8] When he asked the bank about the amount of funds in the Account, Father " was astonished to find out that it was nothing." The money in the IRA and the Account was missing. For several months thereafter, Father requested and reviewed copies of his bank records to find out what had happened to the funds in the Account and the IRA. In 2010, Father went to a Commissioner Station of the District Court of Maryland and filed a complaint against Wagner.

Father had not authorized Wagner to transfer funds from the IRA to the Account, make numerous ATM and cash [445 Md. 413] withdrawals from the Account, or transfer funds from the Account to Wagner's personal checking account[9] or the bank accounts of companies (KLMJ Inc. and Smythe Transportation) that Wagner owned.[10] Father did not know the full extent of the withdrawals and transfers until he started reviewing his bank records.

As a witness for the State, Detective Deborah Chenoweth (" Detective Chenoweth" ) of the Baltimore County Police Department testified that she was assigned to investigate the matter, and that her investigation revealed that, from December 9, 2005, to October 13, 2009, $181,670.09 was transferred from the IRA to the Account,[11] and $251,645.83 was taken from the Account through ATM withdrawals, cash

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withdrawals, and wire transfers to Wagner's personal checking account and the bank accounts of companies that Wagner owned. In other words, funds would be transferred from the IRA to the Account, and thereafter would be withdrawn by ATM or cash or transferred by wire from the Account to Wagner's personal checking account or the bank accounts of companies that Wagner owned. The circuit court admitted into evidence a Provident Bank signature card, which was dated July 29, 2005, identified the Account, and listed Father as the " Primary Owner." The signature card's middle section contains Father's and Wagner's signatures and Social Security numbers, and labels each of Father and Wagner as a " Joint Owner."

[445 Md. 414] On her own behalf, Wagner testified as follows. Wagner was " put on [the A]ccount in case anything happened to" Father. Wagner put money into the Account, but she had " [n]o idea" how much. Wagner sometimes gave Father money out of her personal checking account (which was a joint account with Father) and sometimes transferred money between the Account and her personal checking account. Father received his bank statement every month and balanced his checkbook, so Father knew exactly " what he had" and " what he was using and spending."

As to the IRA, originally, Father withdrew funds from the IRA by mailing a form; Father would then receive in the mail a check, which he would deposit. After Father began living with Wagner, Father informed her that he did not want to deal with " everyday things," including money, so he authorized her to handle telephonic withdrawals from the IRA. Wagner was required to fax a form confirming any telephonic withdrawal; after the form was processed, money from the IRA was deposited into the Account. Wagner did not take any money out of the IRA without Father's authorization because it was " his money." Wagner did not sign Father's name on the requests for withdrawals from the IRA.

All of the money taken out of the Account was at Father's request. Father always used cash and never had a credit card or a debit card. Wagner never took money from the Account or the IRA for her own benefit or without Father's authorization. Wagner acknowledged that the money deposited into the Account was Father's money, and that her " money was kept separate from [Father's] money." Father gave Wagner the proceeds of the $87,000 mortgage " as a gift[,]" but Wagner paid the mortgage when she had " extra money[.]" Wagner failed to pay the general contractor for the work on Father's house. When asked whether she gave Father $200,000 over the course of three years to " lose at the casinos[,]" Wagner testified " [p]ossibly" and explained: " It's [Father's] money. He wanted it, he got it, he did what he wanted with it."

[445 Md. 415] At the conclusion of the bench trial, the circuit court found that Wagner took funds from the Account, finding as follows:

I have absolutely no question in my mind, none, that [Wagner] took and used the money in [the A]ccount . . . for her own purposes. I am truly well beyond hav[ing] a reasonable doubt. I have no doubt. I reject factually as strongly as I can that [Wagner] withdrew funds at [Father]'s request and that that money was lost gambling.

After issuing its factual findings, the circuit court observed that the case presented a legal, not factual, question. Specifically, the circuit court stated: " 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

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out what is, what are the consequences or ramifications of a joint account." As to legal conclusions, the circuit court stated:

[T]here is, in fact, a rebuttable presumption. There's a difference between 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 to you from Haller v. White, [228 Md. 505, 510, 180 A.2d 689, 692 (1962), superseded by, Md. Code Ann., Fin. Inst. (1980, 2011 Repl. Vol.) § 1-204] it says we think the most significant fact is the form of the account, which on its faces creates a joint tenancy. It is true that this raises only a rebuttable presumption[,] but the burden is upon the party seeking to rebut it. In [] Stanley [ v. Stanley, 175 Md.App. 246, 262, 927 A.2d 40, 50, cert. dismissed, 402 Md. 36, 935 A.2d 406 (2007)], the common law presumption of joint ownership with the right of survivorship created by the titling of the 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 [445 Md. 416] 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 not beyond a reasonable doubt, it is beyond all doubt.

The circuit court found Wagner guilty of both theft of property with a value of at least $500 and embezzlement (fraudulent misappropriation by fiduciary).

On October 21, 2013, the circuit court sentenced Wagner to eight years' imprisonment, with all but eighteen months suspended, for theft of property with a value of at least $500, followed by five years' supervised probation; the circuit court also ordered Wagner to pay $122,355 in restitution to Father.[12] For sentencing purposes, the conviction for embezzlement (fraudulent ...

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