Fricke v. State

JAYSON JOHN FRICKE v. STATE OF MARYLAND

No. 2122

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2019

February 5, 2021

Circuit Court for Harford County

Case No. C-12-CR-18-000340

UNREPORTED

Fader, C.J., Beachley, Eyler, James R. (Senior Judge, Specially Assigned), JJ.

Opinion by Beachley, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

After a jury trial in the Circuit Court for Harford County, Jayson John Fricke, appellant, was convicted of one count of theft of property having a value of less than $1,000 for events that transpired on September 18, 2017; one count of theft of at least $1,000 but less than $10,000 for events that transpired on September 29, 2017; one count of theft of at least $100 but less than $1,500 for events that transpired on October 10, 2017; and, two counts of theft of at least $1,500 but less than $25,000 for events that transpired on November 16 and 27, 2017.¹ The court sentenced appellant to a total of eleven-and-a-half years' imprisonment, with all but one year suspended, to be served in the Harford County Detention Center. The court also ordered restitution in the amount of $11,758.30. This timely appeal followed.

QUESTIONS PRESENTED

Appellant presents the following two questions for our consideration:

I. Was the evidence sufficient to convict [a]ppellant?

II. Where [a]ppellant was acquitted of theft on one date and not charged with theft on a second date, did the court err in ordering him to make restitution for money allegedly stolen on those dates?

For the reasons set forth below, we shall reverse and remand the order of restitution. In all other respects, the judgments shall be affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

Patrick and Kelly Cullum own Best Friends Fur Ever, Inc. ("BFFE"), a pet day care and overnight facility that provides a wide range of pet care services.² The company has two locations, one in Joppa, in Harford County, which opened in 2004, and another in Cockeysville, in Baltimore County, which opened in 2012. BFFE employs approximately 45 people at each location, although that number changes seasonally. On August 28, 2017, appellant was hired as the site leader for the Harford County location. His responsibilities included managing the daily operations of the facility, ensuring that procedures and checklists were followed, keeping track of daily revenue, preparing a weekly spreadsheet, and depositing checks and cash into BFFE's account at PNC Bank.

Appellant's direct supervisor was Michelle Selby, the director of operations, whose responsibilities included payroll and onboarding new employees. On appellant's third day of employment, Selby provided training for him pertaining to the company's "financials" and its computer software.

Beginning in late April or early May 2017, BFFE began using a computer program known as Ginger that tracked many of the company's business functions such as client contact information, reservations, and revenue, including all cash, check, and credit card transactions. Ginger was also used to generate various financial reports.

At the end of each shift, front desk employees collected credit card receipts, checks, and cash. They filled out a drop form itemizing those items, confirmed that the total revenue on the drop form matched information in Ginger, and put the drop form, cash, and checks into BFFE's safe. Appellant, who had the combination to the safe, was responsible for collecting the drop sheets, cash, and checks from the safe, validating the information, preparing a spreadsheet that was sent to the company's accountant, and depositing the checks and cash in BFFE's bank account. If there was a discrepancy, it was appellant's responsibility to "raise a flag." Kristin Powers, the front desk manager, testified that typically there were no discrepancies between the cash in the register at the end of the day, and Ginger's revenue log for that same day. When there were discrepancies, however, they were generally less than $50. Kelly Cullum, Selby, and appellant had the combination to the safe.

The company's week, for financial purposes, ran from Sunday to Sunday. Typically, the books were reconciled and deposits were made on Mondays. Selby was not aware that anyone made deposits on appellant's behalf and testified that "it was 100 percent [appellant's] responsibility to ensure that the deposit was made."

After BFFE began using Ginger, a need arose to have petty cash on hand. The petty cash was used for a variety of purposes, including reimbursing employees who used their personal vehicles for a work purpose, purchasing food for dogs, and providing tips for groomers in cases where a client provided for a tip on a credit card. At one point, the washer and dryer at the Harford County location broke down and BFFE spent two to three hundred dollars several times per week at a laundromat. The money used for thelaundromat was taken from the petty cash box. According to Kelly Cullum, using petty cash to pay for laundry was a common occurrence at BFFE.

The petty cash box started with $300. Initially, a log book similar to a checkbook ledger was placed in the petty cash box. Front desk workers would log in the amount of money they were withdrawing, as well as the purpose for their withdrawal. If there was money returned to the petty cash box, it was logged in. Several employees, including appellant, had the code required to open the petty cash box. The petty cash was replenished from the weekly cash drops, and that amount was to be deducted from the amount deposited at the bank and noted on the weekly revenue spreadsheets that were sent to the accountant.

After appellant was hired, he eliminated the log book used to record petty cash transactions and replaced it with a system that required sticky notes to be placed in the petty cash box. The same information that was collected in the log book was supposed to be included on the sticky notes. Powers described the petty cash box containing the sticky notes as "a mess" and said that she did not have a firm handle on what was going in and out.

Throughout appellant's employment, there were problems reconciling the company's books with the information provided by Ginger. Sometimes the books comported with the information provided by Ginger and sometimes they did not. BFFE's accountant advised Kelly Cullum in late October 2017 that there were discrepancies between the information provided by Ginger and the bank records. Initially, the investigation focused on whether Ginger was properly recording transactions, as it was a new system.

On a weekly basis, Kelly Cullum communicated with Selby, who in turn communicated with appellant about the accounting problems. Ultimately, appellant was never able to master the process. According to Selby, appellant initially made multiple deposits instead of a single weekly deposit, but he was apparently able to correct the issue after she spoke with him. Other problems with the deposits persisted, including that they were not made on Mondays, did not correlate to a single day's revenue, and were lower than the figures provided by Ginger. Selby communicated her concerns to appellant throughout his employment.

In preparation for appellant's ninety-day employment review on December 2, 2017, Patrick Cullum spoke to appellant's superiors and other employees to see how they viewed appellant as a leader. At that time, Patrick and Kelly Cullum and Selby began investigating the deposits that appellant was supposed to have made and the financial information obtained from Ginger. They also reviewed security camera footage, but the system maintained only ten days of footage before the files were recorded over. They discovered missing cash deposits over the course of several months. Initially, they believed that $7,000 to $8,000 was missing, and they concluded that appellant was "the only person that had access to that level of cash and had that responsibility for deposits." Later, after further analysis, the deficiencies from the expected deposits increased.

Selby did not find any documentation to show that money from the cash deposits had been used to replenish the petty cash. Selby discovered the following discrepancies between the deposits made and the amount that should have been deposited according to Ginger: (1) on September 18, 2017, $3,412 was deposited but the amount that should havebeen deposited was $4,275.25; (2) On September 29, 2017, $1,755 was deposited but the amount that should have been deposited was $3,280.25; (3) on October 10, 2017, $2,636 was deposited but the amount that should have been deposited was $3,610.30; (4) on October 28, 2017, $2,915 was deposited but the amount that should have been deposited was $4,274.74; (5) on November 8, 2017, $1,171 was deposited but the amount that should have been deposited was $4,515.86; (6) on November 16, 2017, $2,090 was deposited but the amount that should have been deposited was $3,823.10; and, (7) on November 27, 2017, $1,107.50 was deposited but the amount that should have been deposited was $3,065.30.

In late September and early October 2017, around the time of the September 29, 2017 deposit, appellant, Selby, and Kelly Cullum attended a professional conference in Florida. At trial, Kelly Cullum was questioned about the dates of that conference as follows:

Q. Okay. Now, Ms. Cullum, do you recall a period from approximately September 27th through October 5th that you attended a conference in Jacksonville, Florida?

A. Yes.

Q. Okay. And Mr. Fricke was at that conference with you, correct?

A. Yes.

Selby was also questioned about the dates of the conference:

Q. Now, I'd like to take a second to discuss September 29th with you. Do you know where you were on September 29th?

A. On September 29th, I was getting ready to go to

...