Squatting in property if a theft?
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. He held on to property on the basis of a lease document from the landlady, who denied its execution, on oath.
Defence disputing theft:
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 (Landlady) and Severn Bank (Mortgagee) of the property 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.”<!–nextpage–>
Discussion/enunciation of law of Maryland about theft:
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, 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…) 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 asportation4 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).”)
It was concluded:
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.
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.
Source: Hobby v. State [Maryland (USA) Court of Appeal]