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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND

No. 617 September Term, 2009

JAMES EDWARD BREAKFIELD v. STATE OF MARYLAND

Zarnoch, Matricciani, Thieme, Raymond G., Jr. (Retired, Specially Assigned), JJ.

Opinion by Matricciani, J.

Filed: October 4, 2010

On February 2, 2009, James Edward Breakfield, appellant, was convicted by a jury in the Circuit Court for Baltimore City of misappropriation by a fiduciary and felony theft. On the misappropriation count, the court sentenced appellant to one year of imprisonment. On the felony theft count, the trial judge sentenced appellant to three years, suspended all but one year, to be served concurrently with the sentence imposed for the misappropriation conviction. In addition, the court ordered appellant to serve three years probation, beginning with his release from incarceration, and to pay restitution of $14,000.00 to the Criminal Injuries Compensation Fund. Appellant filed a timely appeal, raising the following questions, which we quote: 1. Did the trial court err in excluding the testimony of three defense witnesses? 2. Is the evidence insufficient to sustain the convictions? 3. Are separate sentences for felony theft and misappropriation by a fiduciary improper? 4. Did the trial court err in ordering Mr. Breakfield to pay restitution of $14,000.00 to the Criminal Injuries Compensation Board (CICB)? For the reasons set forth below, the judgments shall be affirmed, but we direct the circuit court to merge the prison sentences, vacate the restitution order, and remand for a reconsideration of the restitution issue. Facts and Proceedings Appellant was co-owner and manager of C&J Peaceful Assisted Living Home, Inc. ("C&J"), which had two locations in Baltimore City. Nellie Jackson was a 78 year-old resident at the C&J facility located at 1011 Reverdy Road, where she stayed for a total of

15 days in the summer of 2006. Appellant's trial was conducted from January 29 until February 2, 2009, and concerned two counts: first, fraudulent misappropriation of Ms. Jackson's money that he held in a fiduciary capacity, in violation of Md. Code (2002, 2006 Repl. Vol.),

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