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Top court upholds daughter’s conviction for stealing from family’s joint account

A sharply divided Maryland high court has upheld the theft and embezzlement convictions of a daughter who surreptitiously withdrew about $200,000 in a bank account her elderly father held jointly with her but which he testified that he controlled.

In its 4-3 decision, the Court of Appeals said Thursday that Maryland’s criminal statute governing theft and embezzlement can trump a state law providing that each owner of a joint bank account can withdraw all the funds.

Jacqueline Wagner withdrew and used the account’s funds for personal use knowing her actions would deprive her father, Marion Wagner, of the money, the court said, citing the elements of theft under Maryland’s Criminal Law Article. The high court noted the father added his daughter’s name to the account primarily to enable her to withdraw funds for him when he could not.

“[T]hat the signature card submitted to the bank identified Wagner as a ‘joint owner’ of the account is not dispositive of [Jacqueline] Wagner’s ownership interest; both father and Wagner testified that the funds in the account were father’s and that it was understood that the funds were to be withdrawn only upon father’s direction and on his behalf,” Judge Shirley M. Watts wrote for the majority. “Plainly put, under the circumstances of this case, nothing in [Maryland’s Financial Institutions Article] prevents a conviction for theft.”

As for embezzlement, Watts said the “the father’s familial relationship with Wagner, and the trust and confidence such a relationship engenders” created a fiduciary relationship between them, which the daughter breached in converting the funds for personal use.

The Maryland attorney general’s office hailed the court’s decision.

“We are pleased the court agreed that a joint bank account holder can be convicted for theft if they steal money from the account,” Alan Brody, a spokesman for the office, stated in an email message. “This decision protects seniors against this type of deception.”

More emotion than law?

The court’s decision, however, drew a strong dissent from Judge Lynne A. Battaglia, who said the ruling was based more on emotion than law and could enable one owner of a joint bank account to make criminal allegations against another based on a withdrawal of funds.

“The decision of the majority creates havoc because now a joint owner can orally criminalize withdrawals from a joint account, which in its establishment and maintenance did not reflect the post hoc limitations testified to in this case,” Battaglia wrote. “Family relationships, forever complicated, henceforth could engender criminal sanctions were a parent to become disenchanted with a child who is a joint owner.”

Byron L. Warnken, who has written a treatise on Maryland criminal procedure, said he agrees with the court’s decision based on the facts that indicate a daughter took funds she knew were reserved for her father.

But Warnken voiced concern about a potential future case in which a civil dispute between family members over the handling of a joint account can turn into a criminal complaint based on the testimony of one relative.

“I get a little bit nervous about that,” said Warnken, who teaches at the University of Baltimore School of Law and was not involved in the case.

Assistant Maryland Public Defender Wyatt A. Feeler, Jacqueline Wagner’s appellate attorney, did not return a telephone message seeking comment on the court’s decision.

Joint ownership

Baltimore County prosecutors charged the daughter in February 2013 with theft and embezzlement related to her withdrawal of funds from the joint account. The funds consisted primarily of her father’s nearly $200,000 retirement account, as well as checking and savings accounts totaling a few thousand dollars.

The father, who is now in his mid-80s, had added Wagner to the account as a “joint owner” following his wife’s death.

“This is my money in there, but not hers, and she agreed to that,” he testified at the Baltimore County Circuit Court bench trial.

The father further testified that he discovered what his daughter had done only after his mortgage lender threatened foreclosure of his house for nonpayment. The bank told the father he had no money left in the joint account, upon which he filed a criminal complaint against his daughter in district court.

In October 2013, Judge Judith C. Ensor found the daughter guilty of theft and embezzlement and sentenced her to eight years in prison, with all but 18 months suspended, followed by five years’ supervised probation. Ensor also ordered her to pay her father $122,355 in restitution.

The intermediate Court of Special Appeals affirmed the conviction last year, prompting the daughter’s appeal to Maryland’s top court.

Watts was joined in the majority opinion by Judges Clayton Greene Jr., Robert N. McDonald and Glenn T. Harrell Jr., a retired jurist specially assigned to hear the case.

Chief Judge Mary Ellen Barbera and Judge Sally D. Adkins joined Battaglia’s dissent.

The case was Jacqueline Wagner v. State of Maryland, No. 11, September Term 2015.