Thomas v. State

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HEADNOTE: Robert L. Thomas v. State of Maryland, No. 22, September Term, 2009 CRIM INAL LAW CRIMES AGAINST PERSONS BRIBERY THEFT BY DECEPTION A local gove rnment em ployee was convicted of bribery and conspiracy to commit bribery for his ro le in a bid-rigg ing schem e relating to a g overnm ent security contract. The employee did n ot have the actual ability to award the contract on his own, but that is no defe nse to a ch arge of bribery. Th e act the e mployee offered to perform , in exchange for illicit com pensatio n, was re ason ably related to his off icial duties; this is sufficient to meet the defin ition of official duties under the bribery statute. In addition, testimony solicited at trial about witness s belief respecting the employee s ability to act was relevant to charges of theft by deception against the employee, because the testimony helped establish the employee s intent to deceive the witness. Circuit Co urt for Prince George s County Case No. CT06-2240A IN THE COURT OF APPEALS OF MARYLAND No. 22 September Term, 2009 ROBERT L. THOMAS v. STATE OF MARYLAND Bell, C.J. Harrell Battaglia Greene Murphy Adkins Barbera, JJ. Opinion by Adkins, J. Filed: April 9, 2010 Petitioner Robert L. Thomas was char ged with bribery, conspira cy to c omm it brib ery, and conspiracy to commit theft by deception for his role in an alleged bid-rigging scheme relating to the award of a local government security contract. Thomas was tried in the Circuit Court for Prince Georg e s County (the Coun ty ), and convicted on both bribery counts. On appeal, Thomas presents two questions for consideration: 1. Did the trial court err in instructing the jury that it is no t a defense to the crime o f bribery that the p ublic emp loyee did not have the actual au thority, power, o r ability to perform the act for which payment was demanded or received? 2. Did the trial co urt err by allowin g a witness for the State to testify to his opinion regarding [ Thomas s] role in the alleged bribery scheme? Because Thomas s solicitation of a bribe was for an act reasonably related to his official capa city, and because the challenged testimony was relevant to the charge of conspiracy to commit theft by deception, we affirm Thomas s convictions. FACTS AND LEGAL PROCEEDINGS During the events giving rise to this case, Thomas was the Dep uty Director of the Prince George s County Office of Central Services ( OCS ). In this capacity, he was responsible for managing the County s vehicle fleet and facilities. He wa s not respon sible for procurem ent of goo ds and serv ices, which were the re sponsibilities of another Dep uty Director, Flo yd Holt. In June 2003, the County invited contractor bids for the installation of a sec urity management system in two County buildings. The invitation to bid included a notice that the County would consider expanding the contract to cover some one hundred forty additional buildings if funding so permitted. Forney Enterprises provided the lowest bid, on June 2, 2003. The next day, however, a new Director, Pamela Piper, was appointed to head OCS, and she retracted the invitation f or bids sho rtly thereafter. In February 2004, OCS issued a request for p ropo sals t o fulfill the se curity contract, and appointed a five-person proposal analysis group to review submitted proposals and recommend a selection. Any recomm endation m ade by the gro up still required Piper s app roval in ord er to take eff ect. On July 15, 2004, the group unanimously recommended that Forney E nterprises ag ain be awarded the contract. The recommendation was rejected, however, after Thomas alerted Piper to a p ossible b usin ess relationsh ip be tween Forne y Enterprises and one of the group members, Corporal Keith Washington. Piper then directed interested vendors to give oral presentations on their pro posals, and restructured the group , replacing tw o of its members with Thom as and H olt. On S eptem ber 29, A DT/T yco, the company that wo uld ultimately receive the group s recommendation, gave its presentation. That presentation was attended by Melvin Pulley and Dallas Evans, respectively the Director of Telecommunications and President of Interior Systems, Inc. ( ISI ), which would act as a subcontractor on the pro ject. Thomas did not attend that presentation. Following what they believed to be a successful presentation, Pulley, Evans, and others went to celebrate at a restaurant. Acco rding to Pulley, he there encoun tered Robert Isom, a social friend of his who was at the time working for the County. Isom offered to introduce Pulley to Thomas, whom he suggested could help [ISI] win the contract. Pulley 2 followed Isom to another restaurant, where they met Thomas. According to Pulley, Thomas told Pulley that he knew all about ISI and the contract an d that ever yone on their committee worked for [Thomas] . . . . Pulley and Thomas discussed ISI; the next day, Isom contacted Pulley, sayin g that T homa s wan ts to kno w if IS I and A DT w ill play. 1 Pulley replied i n the af firmativ e, as lon g as ISI know s wha t the gam e is. On October 1, Isom called Pulley to arrange a lunch meeting between Thomas and Pulley. Thoma s and Isom went to the same restaurant that had been the site of ISI s initial celebration, and waited f or Pu lley. Before P ulley arrived, Th omas told I som that the y would ask ISI for $250,000. When Pulley arrived, he met briefly with Thomas, who then directed him to Isom s table. Isom gave Pulley a piece of paper stating that Thomas could guarantee ISI the contrac t for $250 ,000, with half to be paid up front and half to be paid when the contract was awarded. The note also said that Thomas would then issue change orders so that ISI could re coup its expenses and be able to w ork on the additional o ne hund red forty buildings that might eventually be covered by the contract. A fter leaving th e restaurant, Pulley reported the events of the meeting to Evans. On October 4, Pulley and Evans spoke to ISI s Chief Op erating Officer, William Marcellino, as well as to ISI s counsel and vicepresident. The group collectively decided to notify the authorities. 1 Isom eventually pled guilty to a charge of consp iracy to comm it bribery, and testified at Thomas s trial in exchange for a reduced sentence. H is description of these even ts differs in that he claim s that he spo ke to Evans, and not Pulley, at the first restaurant, and that it was Evans who suggested a meeting with Thomas. Nonetheless, Isom confirmed in his testimony that he c alled Pu lley the ne xt day, at T homa s s requ est, to se e if ISI w ould pl ay. 3 On October 6, Special Agent John Poliks of the Office of the State Prosecutor was assigned to investigate the c ase. T he next d ay, Po liks m et with Pulley, who allowed Poliks to copy a voicemail that had been left on Pulley s phone by Isom. The message contained directions from Isom for Pulley to contact him to set up a meeting with Thomas. In Po liks s presence, Pulley ca lled Isom , to say that he had spoken with Evans, who felt that the amoun t s a little steep. Isom replied that it was no problem and that w e just need to . . . get them together. On October 14, Pulley allowed Poliks access to five new voicema ils from Isom, which included a phone number for the other Bob[,] presumably meaning Thomas. That same day, Evans called Thomas in Poliks s presence, saying that he was trying to unders tand ex actly wh at the de al is. Thoma s replied that h e [didn t] want to talk about it on the pho ne . . . . Evans asked Th omas to cla rify what co nsideration [ISI would] be getting[,] to which Thomas replied in p art that there s 1 44 building s . . . [to] add sec urity to, and that he was going to make the decision and then g oing to send a letter o f intent to award. Later in the day, Evans called Isom, who told Evan s that wh at we re talk ing about could be completed in twelve months. Isom added that we understand that [the payment amount was] k ind of s teep . . . bu t [Tho mas] ju st wan ted to ge t assuran ce from you. Isom further added that Thomas wanted to assure [Evans] that he s going to take you on your word[,] and that ISI should g o ahead o n and sign and you ll know the job s out there for contractor [sic]. Finally, Isom stated that he needed E vans s commitment because Thomas 4 had to make a decisio n today . . . . Under Poliks s direction, Isom and Pulley met at a Washington D.C. restaurant on October 19. The meeting was surveilled by Poliks and Special Agent Rick Barger. At the meeting, Isom gave Pulley an envelope containing a draft con sulting agree ment, and told Pulley that once th e agreem ent was sig ned, Tho mas wo uld awar d the security co ntract to ADT/Tyco. The agreement called for ISI to retain Washington Business Management Consulting Group, L LC ( W CG ) f or a total fee o f $260,00 0, payable in monthly installments. WCG was a consulting company belonging to Paul Wright, who had prepared the consulting agreement. Wright testified at Thomas s trial that Thoma s had con tacted him in October 2004 with an eye towards jointly pursuing consulting opportunities, but that he had never heard of ISI prior to these events, and that he never thought the consulting agreeme nt was illega l.2 Pulley returned a marked-up copy of the consulting agreement to Thomas at the restaurant where the two had initially met. Thomas took the envelope without opening it, and told Pulley that he was going to award the contract the next day to ADT and ISI. The contract was not in fact awarded the next day, though Thomas returned the signed agreement to Wright sh ortly after receivin g it. When the contrac t was not awarded, Poliks directed 2 Wright was charged with bribery, conspiracy to c ommit brib ery, and consp iracy to commit theft in connection with these eve nts. He w as acquitted on all coun ts prior to Thomas s trial. His testimony against Thomas came as part of an agreeme nt to coope rate in an ongoing public corruption investigation in exchange for transactional, use, and derivative use immunity. 5 Pulley to arran ge a m eeting, th rough Isom, between Thomas, Pulley, and William Marcellino. The meetin g was set for N ovem ber 1. P rior to the meeting, the Federal Bureau of Investigation supplied Marcellino with a check for $10,000, d octored to look like an ISI check. Thomas called Wright before the meeting, however, to say that he would not attend. Instead, Marcellino met with Isom and Wright (who had by then signed the consulting agreement himself). At the meeting, Marcellino gave Wright the check as an initial payment on the consulting agreement. Isom told Pulley and Marcellino that Th omas w as going to release the contract that day and fo llow with chang e orders thereafter. Despite Isom s assurances, the contract was not a war ded to ADT/Tyco that d ay. During this period, the proposal analysis group did unanimously recommend that the secu rity contract be awarded to ADT/Tyco, with ISI as a subcontractor on the project. The group notified Piper of its recommendation during November 2004. Poliks again asked Marcellino to arrange a meeting with Thomas, which Thomas again did not attend. That meeting, on December 6, was atten ded by Wr ight at Tho mas s requ est. Wright gave Marcellino a copy of a recommendation memorandum from Piper to Corporal Washington, indicating that Piper had accepted the group s recommendation to award the contrac t to AD T/Tyco . In January 2005, Poliks made an unsuccessful attempt to meet with Wright while posing as a project manager for ISI. Wright testified that aro und this time he ended his business relationship with Thomas for a number of reasons. Also in January, Isom told Pulley that he was no longer part of t his mes s [Tho mas] w as doin g [sic]. 6 On May 24, 2005, Poliks and Barger executed search warrants for the homes and offices of Th omas, I som, an d Wrig ht. Numerous documents relating to WCG and the consulting agreem ent we re seize d from Wrigh t s hous e. Thomas, for his part, stated during the search that he had no capac ity to affect bidding on contracts in the County. He also denied that he had taken the marked-up consulting agreement from Pulley, though he admitted to doing paid accounting work for WCG . The seized documents showed that Wright had op ened a busine ss acco unt on W CG s name on No vemb er 3, 200 4, and had deposited the $10 ,000 ch eck into that acc ount. Both Th omas an d Wrigh t made w ithdrawals from that account, and Wright testified that he gave some or all of his withdrawals to Thomas. Thomas was tried in the Circuit Court for Prince George s County, in August 2006, on charges of bribery, conspiracy to commit bribery, and conspiracy to commit theft by deception. During trial, and over defense objections, Evans testified that at the time of h is October 14 phone call to Thomas, he believed that Thomas had the authority to influence the awarding of co ntracts for the Co unty. 3 Prior to deliberations, the jury received instructions 3 Specifically, Thomas objected to the following exchange: [THE STATE:] And what did you believe, aga in, this date and this time; what did you believe was [Thomas s] ability to influence the awarding of the contract that you were involved in bidding on? *** (contin ued...) 7 on bribery, inclu ding the fo llowing state ment: It is not a defense to the crime of bribery that th e public employee did not have the actual au thority, power o r ability to perform the act for which the money was demanded or received. Thomas was convicted on charges of bribery and conspiracy to commit bribery, and acquitted on charges of conspiracy to commit theft by deception. On May 11, 2007, Thomas was sentenced to twelve years in prison with all but thirty months suspended in fa vor of five years of supervised probation. He was also ordered to pay $10,000 restitution. Thomas appealed the verdict on the grounds that the trial court erred in instructing the jury that Thoma s s lack of a ctual autho rity to aw ard the co ntract was no t a de fens e to b ribery, and that the trial court erred in allowing Evans to testify as to his belief in Thomas s actual authority to award the contrac t. Thoma s v. State, 183 Md. App. 152, 166, 173, 960 A.2d 666, 674, 678 (2008). The Court of Special Appeals affirmed the judgment of the trial court on both grounds, holding that the trial cou rt s jury instructions fairly conveyed Maryland law on bribery. Id. at 171, 960 A.2d at 677. The intermediate appellate court further held that even if Evans s testimony was im proper, Thoma s suffered no harm or prejudice as a result of the te stimon y. Id. at 173-74, 960 A.2d at 678. We granted Thom as s petition for a writ 3 (...continued) [EVA NS:] As [Thomas was] Deputy Director of Contracts and Procurem ent, I believed th at the position can have influence over or does influence or would influence the awarding of a contract. 8 of certiora ri to con sider bo th issues . Thoma s v. State, 407 M d. 529, 967 A.2d 182 (2009) (granting certiorari). DISCUSSION Thomas presents two issues for our consideration upon appeal. 4 We will discuss each argument in turn. The Jury Instruction On Bribery Thomas argues that the trial court erred in instructing the jury on bribery because the court stated that a defendant s lack o f actual authority to perform an act was not a defense to receiving or soliciting a bribe to commit that act. We disagree. An appellate court, reviewing jury instructions, will leave the judgment undisturbed so long as the instructions fairly cover the law . Smith v. Sta te, 403 Md. 659, 663, 944 A.2d 505, 507 (200 8). We w ill reverse a judgment an d remand for a n ew trial, however, w here the instructions are amb iguous , mislead ing, or c onfus ing to ju rors. See Battle v . State, 287 Md. 675, 684 -85, 414 A.2d 1 266, 1271 (198 0). 4 The questions presented for review are: 1. Did the trial co urt err in instructing th e jury that it is not a defense to the crime of bribery that the public employee did not have the a ctua l auth ority, power, or ability to perform the act for which payment was demanded or received? 2. Did the trial co urt err by allowin g a witness for the State to testify to his opinion regarding [Thomas's] role in the alleged bribery scheme? 9 In this case, our determ ination as to whether the instruction on bribery fairly covered the law requ ires interpretation of Section 9-2 01(c) of the Crimina l Law Article ( C .L. ), which reads as follows: A public employee may not demand or receive a bribe, fee, reward, or testimonial to: (1) influence the performance of the official duties of the public employee; or (2) neglect or f ail to perform the official d uties of the public employee. See Md. Cod e (2002, 2008 S upp.) § 9-201(c) of the Criminal Law Article.5 The statute does not discuss the connection b etween an em ployee s actual autho rity and the act for which the employee was bribed. Instead, the statute refers only to the employee s official duties. In this case, therefore, we must determine if the act for which Thomas solicited a bribe, though outside of his actual authority, was sufficiently related to the performance of his official duties so as to be encompassed by the statute. Although this question is one of first impression for this C ourt, the Court of Special Appea ls has twice before the present case held that a public employee need not have actual authority to act in a particular capacity in order to be guilty of soliciting a bribe in relation to that act. See Richards on v. State, 63 Md. App. 324, 331-33, 492 A.2d 932, 936-37 (19 85); Kable v. State, 17 Md. App. 1 6, 22, 29 9 A.2d 493, 49 7 (197 3). In Kable, for example, that 5 Unless oth erwise pro vided, all statutory references are to the Criminal Law A rticle (2002, 2008 Su pp.). 10 court held that it was bribery for a public official [to accept money] to act corruptly in a matter to which he bears some official relation . . . . Id. (quotation marks and citation omitted). Likewise, several of o ur sister states, without e xplicit legislative c omman ds on this issue, have con sistently held that a p ublic employee ac ting within h er official ca pacity need not have authority to complete a specific act in order to be convicted of soliciting a bribe in connection with that ac t.6 The Supreme Court of Arizona clearly stated the rationale for interpreting bribery statutes to encompass those activities within a broad definition of an employee s official duties: The reason for making it an offense to bribe a pu blic officer is because of its tendency to pervert justice. . . . An officer s conduct need not b e specifically pre scribed by statu te in order to constitute of ficial action, an d it is sufficien t that the duty exists by reason of natural implication fro m the powers specifically granted by statute, or by reason of the lawful custom or regulation of a depa rtment of g overnm ent. . . . Once the gist of the crime is apparent, a strict and technical interpretation of an officer s duty becomes as senseless to logic as it is legally deplored by th e we ight of au thority. 6 See, e.g., State v. Hendricks, 186 P.2d 943 (Ariz . 1947); State v. Carr, 374 A.2d 1107 (Conn. 1977); Raines v. State, 65 So.2d 558 (Fla. 1 953); Taylor v. State, 162 S.E. 504 (Ga. 1931), overruled on other grounds, Moore v. State, 333 S.E.2 d 605 (G a. 1985); State v. Potts , 43 N.W. 53 4 (Iowa 1 889); State v. Ca mpbell, 85 P. 784 (Kan. 19 06); Commonwealth v. Avery, 18 N.E.2d 353 (M ass. 1938); State v. Ellis, 33 N.J.L. 1 02 (N.J. 18 68); People v. Chapman, 192 N.E .2d 160 (N .Y. 1963) ; Wells v. State, 129 S.W.2d 203 (Tenn. 1939); see also United States v. Anderson, 32 M.J. 949, 950 (N-M. Ct. Crim. App. 1991) (holding that apparent auth ority to do th e object o f the bribery is sufficient to sustain a conviction under the Uniform C ode of M ilitary Justice). 11 State v. Hendricks, 186 P.2d 943, 947-48 (Ariz. 1947) (citations and quotation marks omitted). We view this line of authority as implicitly introducing an element of reasonableness into the determination of what are the bribed person s off icial duties. In our view, the reasonableness element involves both consideration of what an objective, outside observer wo uld under stand her d uties to be, an d what the public em ployee wou ld expect the penal statute to prosc ribe, or common se nse for that matter. Our sister states have permitted a lack of actual authority to stand as a defen se only when the act that is the object of bribery is completely and utterly un related to a pu blic employee s official duties. Those co urts have correctly held that, under such circumstances, while it might be morally improper and may well involve some other crime to give or offer money to [induce] an officer to do an act totally unrelated to his job , it woul d not be bribery. Hendricks, 186 P.2d at 948. Thus, if a public employee accepts a payment for an act that could not reasonably be construed as related to her official duties, it cannot be considered a bribe. Thomas, in his brief, argues tha t we shou ld apply this ration ale in holdin g that his solicitation here was entirely outside of his official duties. We disagree. Thomas was a member of the proposal analysis group charged w ith evaluating bids for the security contrac t. Even if he lacked the actual authority to award the contract himself, he was intimately involved in the award process as a function of his official position, and it is therefore reasonab le to view his solicitation as related to his official duties. Accepting T homas s 12 position on this issue w ould mea n that only the most powerful public officials, those vested with the unilateral or ultimate powe r to act, could be convicted u nder the bribery statute. This is not co nsona nt with the text o r purpo se of th e statute . Thomas s case bears a particular resemblance to Raines v. S tate, 65 So.2d 558 (Fla. 1953). In Raines, the Supreme Court of Florida held that a member of a state licensing board for barbers co uld be con victed of so liciting a bribe to issue a barb er s license, in sp ite of the fact that he himself could never issue such a license without the acquiescence of other members of the licensing board.7 Id. at 560. The court noted that it was well settled that an officer cannot be charged and convicted of an act that is entirely outside the scope o f his legal duties. Id. Noneth eless, the cou rt upheld the bribery con viction, applying the rationale 7 The Florida statute o n bribe ry, see Florida Statutes § 838.02 (1953), at the time was as follows: 838.02 Officer accepting bribe. Every officer, state, county or municipa l, or any public appointee, or any deputy of any such officer or appointee, who corruptly accep ts, requests or s olicits a gift or gratuity, or a promise to make a gift, or do an act beneficial to such officer, public appointee or deputy, under an agreement or with an understanding that his vote, opinion or judgment shall be given in any particular man ner or upon a particular aside of any question, cause or proceeding which is or may be by law br ought bef ore him, in his official capacity, or that in such capacity he shall make any particular nomination or appointm ent, shall forfeit his office or appointment, be forever disqualified to hold any public office, trust or appointment under the constitution or laws of this state, and be punished by imprisonment in the state prison not excee ding ten years, o r in the county jail not exceeding one year, or by fine not exceeding five thousand dollars. 13 that the defendant s acts could fairly be termed receiv[ing] anything of value to influence the receiver s official action . . . . Id. Similarly, Thomas himself was incapable of awarding the security contrac t, despite his b lunt assertion to ISI that he p ossessed th e powe r to ensure the award in exchange for illicit compensation. But with Thomas s position in the proposal analysis group, he could influence the award to be made by the Director of OCS. The combination of Thom as s official p osition and h is statements to ISI make it reasonable to view this solicitation as related to his o fficial duties. A s such, his ac tions are inclu ded within our bribery statute. We hold that a public employee cannot claim as a defense to bribery the lack of actual authority to commit an act w here the act is reasonably related to the employee s official duties. The trial court s jury instruction was thus a proper statement of Maryland law on bribery, and do es not requ ire a reversal o f that court s ju dgment. Propriety of Evans s Testimony Thomas additionally argu es that it was e rror for the trial c ourt to perm it Evans to testify that he believed Thom as was ac tually capable o f award ing the secu rity contract. Thomas contends that Evans s subjective beliefs are irrelevant to all three of the charges allayed against Thomas. Preservation Before reaching the substance of this issue, we must first dispen se with the State s argument that [t]here is nothing in the record which sugges ts this basis for the petitioner s 14 objection at the trial. The record shows that the following exchange occurred during Eva ns s testim ony: THE STATE: And what did you believe, again, this date and this time; what did you believe was [Thomas s] ability to influence the awardin g of the co ntract that you w ere involve d in bidding on? THOM AS S CO UNSE L: Objection, Yo ur Honor. THE COU RT: Let s approach the bench. [At the be nch:] THE COURT: Do you have much more to go on this witness [Evans]? THE STA TE: I have about maybe two minutes. THE COU RT: His beliefs, his understandings, his perceptions are not at issue. The issue is, did this man enter into a conspiracy and accept a bribe. THE STATE: If I may, Your Honor, I respectfully disagree insofar as it s been no secret from the beginning of the case that [it is the] defense s position that [Thomas] didn t have actual ability to influence, actual abili ty to do certain things. And I think it s crucial that the jury hear what these people believed [Thomas] could do the whole way. If they believed he had the ability to influence the contract, that would be why he s entering w hy he s going into the con tract. This is also, as [co-counsel] just pointed out to me, we re talking about conspiracy to commit theft by deception. This is evidence of his intent to deceive, as w ell. THE COU RT: Anything else? THE ST ATE: N o, Your Hon or. 15 THE COURT: You can ask the questions, but let s get it to a close. What we deduce from the colloquy above is that the trial court's initial reaction to the testimony offered b y the State wa s that the testim ony was no t relev ant b ecau se Evans's understanding or beliefs were not relevant to the question of whether Thomas accepted a bribe. The State countered with two theories of relevancy, and the trial judge then stated that he wou ld all ow the te stimony, apparently accepting one or both of those theories. This Cou rt ordinarily will not consider any issue on review unless it has been raised in or decided by the trial court. See Md. R ule 8-131 (a). Groun ds for obje ction, however, need not be stated unless so directed by the trial court or on a party s own in itiative. See Md. Rule 4-3 23(a)-(c). In this case, Thomas s objection was a general one, and thus preserved all available grounds, including the arguments he now presents. Merits Thomas argues that Evans s testimony should not have been admitted because it was not relevant to the charges against him. He also contends that the testimony was lay opinion that does not qualify under Maryland Rule 5-701, which governs opinion testimony by lay witnesses.8 8 Rule 5-701 provides: If the witness is not testifying as an expert, the witness s testimony in the form of opinions or inferences is limited to those opinions or inferences which are (1) rationally based on (contin ued...) 16 To determine whether there was error in the admission of Evans s testimony, we consider the purposes for which it was admitted. Although the trial court did not indicate any basis for its decision to admit Ev ans s testimony, it decided to do so after the State offered two theories of relevancy, which are stated above. We begin and end with the State s second theory - that Evans s testimony was relevant to the charge of conspiracy to commit theft by deception. Section 7-104 of the Crimin al Law A rticle makes it a crime to obtain control over property by willfully or knowingly using deception . . . . C.L. § 7-104(b). Section 7-101 of the Crimin al Law A rticle defines deception, in part, as knowingly fail[ing] to correct a false impression that the offender previously has created or confirmed . . . . C.L. § 7101(b)(ii). Applying these definitions, we consider it clear that Evans s testimony was relevant to the charg e of cons piracy to commit theft by deception. As the State indicate s in its brief, Thomas told Evans that he was go ing to mak e the decisio n during the phone call that was the su bject of Ev ans s testimo ny. It is indisputable that Thom as made th is statement, as the pho ne call wa s recorded by Poliks at trial, the recordin g was pla yed in open court, and a transcript of the call was admitted as an exh ibit. The fac t-finder cou ld conclude that Thomas endeavored to create a false impression in E vans s mind that Thomas 8 (...continued) the perception of the witn ess and (2) helpful to a clear understanding of the witness s testimony or the determination of a fact in issue. 17 had the ca pacity to awar d the contra ct. Indeed, Thomas s fraudulent i ntent is suggested by his defense that he had no authority to award the contract, when there was evidence that Thomas told Evans the exact opposite, i.e., that he was going to make t he co ntract aw ard d ecision a lmost immed iately. In this context Evans s testimony was admissible not to prove that Thomas actually had the authority to award the contract, but that Thomas said that he did, intending to deceive Evans. Evans s belief in Thomas s abilities to influ ence the co ntract is relevan t in that it helps to demonstrate the shrewdness of Thomas s deception. Thomas also argues that Evans s testimony was lay opinion evidence in violation of Maryland Rule 5-701. We do not agree. Evans s testimony that he believed Thomas had that authority is not a lay opinion, because it was admitted not to show that Thomas actually had any authority. Rather, the testimony simply demonstrated the skillfulness that Thomas brought to bear on his deception of Evans. 9 Because Evans s belief in Thomas s authority to deliver the security contract was relevant to the charge of consp iracy to commit theft by deception, the trial cou rt did not err in permitting Evans to testify on that matter. Thomas could have sought an instruction limiting the use of E vans's testim ony to the br ibery cha rges alo ne. See Md. Rule 5-105. 9 Even if we were to treat E vans s testimony as lay opinion, it likely would meet the criteria of Rule 5-701. His testimony that he believed E vans had the authority to award the contract is the direct product of Ev ans s personal p erceptions (h is phone c onversatio n with Thomas), and is relevant to understanding part of his testimony (the false impression that Thom as creat ed). Ev ans s tes timony th us mee ts both re quirem ents of Rule 5 -701. 18 There is no indication that he did so. Thus, we need not decide if Evans's testimony was also admissible with respect to the bribery charges. CONCLUSION We hold that the trial court s jury instruction on bribery was sufficient b ecause it fairly described Maryland law on bribery - namely, that it was not a defense to bribery that Thomas lacked the actual a uthority to perform an act. Because the act to be performed was reasonab ly related to Thomas s official duties, the bribery convictions will stand. We also hold that the admission of Evans s testimony was not in error, because Ev ans s beliefs with respect to Thoma s s actual auth ority were relev ant to the ch arge of co nspiracy to com mit theft by deception. The judgment of the Court of Special Appeals is affirmed. JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY THE PETITIONER. 19

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