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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND

No. 1711 September Term, 2011

DELORES CRAFT O'BRIEN HEFFERNAN v. STATE OF MARYLAND

Wright, Graeff, Eyler, James R. (Ret'd, Specially Assigned) JJ.

Opinion by Eyler, James R., J..

Filed: December 21, 2012

Following a jury trial in the Circuit Court for Montgomery County, Delores Craft O'Brien Heffernan, appellant, was convicted of two counts of obtaining property with a value over $500, by presenting a bad check. The sentencing court imposed a ninety-day term of incarceration for each count, which was to be served consecutively. Appellant appealed and presents the following questions, which we quote: 1. Is the evidence insufficient to sustain the convictions for obtaining property by bad check where the checks were written for rent and a security deposit and if so, was [appellant] denied her right to effective assistance of counsel where her trial attorney failed to argue the motion for judgment of acquittal with particularity? 2. Did the trial court abuse its discretion in denying appellant's motion to set aside the verdict on the basis that bad checks for rent and a security deposit may not be prosecuted under the bad check statute? For reasons that follow, we are unable to address the merits of the first question, and we answer no to the second question. Accordingly, we affirm the judgments of the trial court. FACTUAL AND PROCEDURAL BACKGROUND In late October 2009, appellant saw an advertisement in a local newspaper for a basement apartment owned by Constance Heckert. On November 1, 2009, after visiting the apartment at 11410 Stonewood Lane in Rockville, appellant and Ms. Heckert executed a lease agreement. The term of the lease was one year with a rental of $11,400, payable in $950 monthly installments. The lease also required a security deposit in the amount of $950. Ms. Heckert testified that, in accordance with her usual practice, she required payment of the first month's rent and payment of the security deposit at the time she entered into the lease. Appellant gave Ms. Heckert two checks dated November 1, 2009, each in the amount

of $950, one for the security deposit and one for the first month's rent. Ms. Heckert testified that she "deposited [the checks] right away" and, on November 10, left to spend the winter in Florida. Ms. Heckert testified that, prior to leaving for Florida, she gave appellant an extra key to her home, so appellant could water plants. According to Ms. Heckert, she also instructed appellant to pay rent by directly depositing money in Ms. Heckert's bank account. In order to do this, Ms. Heckert stated that she provided appellant with the necessary information and deposit slips. Ms. Heckert testified to the following. On November 21, she discovered that appellant's November 1 checks bounced due to insufficient funds. Two days later, on November 23, appellant promised to pay Ms. Heckert the amount owed. On November 26, Ms. Heckert called appellant again because appellant failed to pay any money owed. The following day, appellant promised that, on November 30, she would deposit money into Ms. Heckert's account. On December 2, 2009, appellant "called to say she had put in $1,000 after 6 o'clock," but in fact she had deposited $340. Appellant claimed to have deposited an additional $950 that day, but in fact, the total amount appellant deposited into Ms. Heckert's account between November 30-December 4, 2009 was $750. On December 17, Ms. Heckert returned to her home in Rockville because she "knew that something was really wrong." Upon her arrival, she discovered that items of personalty were missing and that there was damage to both her home and appellant's apartment.

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Appellant testified to the following. While seeing the apartment for the first time, she informed Ms. Heckert that she could not immediately move in due to her financial situation. Appellant explained that she could not move in because she would not receive enough money to cover rent until November 15, after which time she could enter into a lease. Appellant asked Ms. Heckert if she would be willing to take postdated checks, but Ms. Heckert was unwilling to oblige. While Ms. Heckert was unwilling to take postdated checks, she was willing to refrain from cashing the rent check until November 15. Specifically, Ms. Heckert said: "We can start the lease today and, if you give me the checks, I will hold the checks until you tell me when is appropriate to deposit them." Ms. Heckert stated that she would not cash the security deposit check until November 30. Appellant testified that there were many problems with her apartment. She stated that she contacted Ms. Heckert on either November 20 or November 23 about problems with the heating and ventilation. Ms. Heckert was unwilling to resolve the problem to appellant's satisfaction, and as a result, according to appellant, she informed Ms. Heckert that she was vacating the premises. Appellant also explained that she deposited $750.00, not the $950.00 owed for the first month's rent, because she and Ms. Heckert had an agreement that appellant would clean Ms. Heckert's house for $200.00. Appellant did not deposit the additional $950.00 owed for the security deposit because, according to her testimony, Heckert said "forget about the other check since [appellant] was prorating and moving out."

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After appellant's motion for judgment of acquittal was denied, the jury convicted appellant of two counts of obtaining property with a value over $500. Subsequently, appellant, despite having counsel of record, filed, without counsel's signature, an "Emergency Motion To Set Aside Jury Verdict As A Matter of Law." In the motion, appellant argued that bad checks for rent are not subject to criminal penalties. In support of her motion, appellant attached a copy of the District Court of Maryland's webpage, which provided that bad checks in payment "under a contract" cannot be deemed a criminal violation. Specifically, in pertinent part, the attached page provided: What is a Bad Check Violation? A bad check violation occurs when a person gives another person or business a bad check for an immediate exchange of goods or services. Two conditions must be met to charge an individual with a bad check violation:

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