Albrecht v. State

MOYLAN, Judge. Although of only peripheral concern in the initial appellate reviews of this case, a number of unresolved—and vexing— ⁴⁸ issues involving the law of reckless endangerment now command our central focus as we revisit the case. The appellant, Christopher J. Albrecht, who was a Montgomery County police officer at the time of the crime, was convicted in the Circuit Court for Montgomery County by Judge Peter J. Messitte, sitting without a jury, of one count of involuntary manslaughter and two separate counts of reckless endangerment. The first count of the indictment charged the appellant with the unlawful manslaughter of Rebecca Garnett.

After a lengthy and hard-fought trial, Judge Messitte found that the evidence did not persuade him that Officer Albrecht had intentionally fired the shotgun blast that caused Ms. Garnett’s death. Accordingly, he found the appellant not guilty of voluntary manslaughter. Judge Messitte did find, however, that Officer Albrecht’s behavior in pointing and handling the weapon was grossly negligent in that it represented a gross deviation from the standard of conduct expected of a reasonable police officer. Accordingly, he found the appellant guilty of involuntary manslaughter of the gross negligence variety.

The second count of the indictment charged the appellant with the reckless endangerment of Rebecca Garnett. Based on the same “gross negligence,” so defined (perhaps inadvertently) in the Maryland case law as to embrace the quality of “recklessness,” Judge Messitte also found the appellant guilty of the reckless endangerment of Rebecca Garnett. He merged that conviction, however, into the conviction for manslaughter. The third count of the indictment initially charged the appellant with the reckless endangerment of “other person(s) present on Larchmont Terrace.” At the end of the State’s case, the third count was amended, over the appéllant’s objection, by substituting for “other person(s) present on Larchmont Terrace” the names of seven specific persons, to wit, Officer Marvin Thomas, Darnell Budd, Iris Frazier, Tequila Frazier, James Littlejohn, Carroll Walker, and Travell Dumar.

Judge Messitte ultimately found the appellant not guilty of the ⁴⁹ reckless endangerment of Officer Marvin Thomas, Darnell Budd, and Iris Frazier. He found, on the other hand, that the appellant was guilty of having recklessly endangered Tequila Frazier, James Littlejohn, Carroll Walker, and Travell Dumar. Discriminating factors, considerations other than the undeviating factor of the appellant’s gross negligence, obviously came into play in separating the four who were recklessly endangered from the three who were not. For the conviction on that third count, Judge Messitte sentenced the appellant to one year in prison, to be served consecutively with the sentence for manslaughter, but then suspended that sentence.

In appealing his convictions to this Court, the appellant challenged the legal sufficiency of the evidence to support the finding of gross negligence that was the indispensable predicate for both the manslaughter conviction and the reckless endangerment convictions. He also challenged the reckless endangerment convictions in a number of other regards. He claimed that he was the victim of multiplicity in pleading, in that the State had twice charged him (in the second and third counts) with the single crime of reckless endangerment. He claimed, moreover, that the third count as initially drawn did not adequately charge an offense for the failure to name any victim.

The appellant claimed alternatively that if, contrary to his urging, the unit of prosecution in reckless endangerment were held to be each individual person recklessly endangered, the third count was then ultimately duplicitous, charging him with seven offenses in a single count and convicting him of four. He claimed that the amendment naming those seven victims, over his objection, was impermissibly one of substance and not merely of form. He also challenged the legal sufficiency of the evidence to support the reckless endangerment convictions with respect to Tequila Frazier, James Littlejohn, Carroll Walker, and Travell Dumar in various regards. In reversing the appellant’s convictions in Albrecht v. State, 97 Md.App. 630, 632 A.2d 163 (1993), our focus was narrow.

We held that the evidence was not legally sufficient to permit ⁵⁰ a finding of gross negligence. On the basis of both Montgomery County Police Academy instruction and the testimony of numerous Montgomery County officers, the evidence did not .permit a finding that in the circumstances of the present case Officer Albrecht was guilty of a gross and wanton deviation from permitted police conduct in the unlimbering, the loading, and the aiming of his weapon. In reversing this Court’s decision, the Court of Appeals in State v. Albrecht, 336 Md. 475 , 649 A.2d 336 (1994), was correspondingly narrow in its focus. In exposing the Achilles’ Heel of this Court’s analysis, it looked to one small, but crucial, additional factor in the officer’s conduct that had been overlooked by us.

After having unlimbered, loaded, and aimed his weapon, the officer moved his finger from the safer position of the trigger guard to the more exposed position of the trigger itself, thereby increasing, if not creating, the danger that even a nervous twitch or an uncontrollable muscular spasm might cause the weapon to fire accidentally. The police academy instruction and the testimony of fellow officers that had legitimized as acceptable practice every step leading up to that final one stopped short of legitimizing the placing of the finger on the trigger itself. The Court of Appeals held that that small but officially uncountenanced incremental risk was sufficient to permit a finding that the officer had been grossly negligent. The Unresolved Issues In reversing the convictions on the basis of the appellant’s primary contention, we found it unnecessary to deal with the appellant’s secondary contentions touching on the law of reckless endangerment.

In reversing our decision on the primary issue, the Court of Appeals had no occasion to address those secondary issues. On remand from the Court of Appeals, it is now incumbent upon us to turn our attention to what was heretofore of only marginal concern—some of the still unresolved nuances of reckless endangerment law and the significance of those nuances to the contentions that are now back before us. ⁵¹ In first addressing this case, we found it unnecessary to assess the legal sufficiency of the evidence to support the reckless endangerment convictions with respect to any element of the crime other than that of whether the appellant’s conduct permitted a finding of an unjustified creation on his part of a substantial risk of death or serious injury to another. Holding as we did that the appellant’s conduct could not be found to have been unjustified, we had no need to demarcate any possible geographic arc of danger or to determine what the evidence showed with respect to whether any of the persons named in the third count were actually within that arc of danger at the time the danger was still operational: Holding as we do that the evidence was not legally sufficient to support the convictions for reckless endangerment because of the insubstantiality of the “risk” factor based upon the mere aiming of the shotgun and not the firing of the shotgun, it is unnecessary to examine further the question of what victims might otherwise have been recklessly endangered. The record, however, is highly dubious in that regard.

Albrecht v. State, 97 Md.App. at 684 n. 3, 632 A.2d 163 . We were similarly content to leave for another day the question of what is the appropriate unit of prosecution when it comes to the crime of reckless endangerment. Consequently, we were able to put off the alternative pleading problems attendant on the resolution of that issue as to the appropriate module of criminality: Our holding that the evidence was not legally sufficient in terms of establishing the “risk” factor itself relieves us of the burden of addressing a very nettlesome pleading problem. That is the problem of computing the units of prosecution with respect to the crime of reckless endangerment.

If it is the life-endangering act itself that is the unit of prosecution and not each victim thereby endangered, then the second and third counts, each charging reckless endan ⁵² germent, should not both have been in this cáse. One of them would have been redundant. If, on the other hand, the unit of prosecution is each endangered victim rather than the mere act itself, then the third count in this case would present numerous problems. The naming or otherwise identifying of the victim would be a critical element.

Permitting the State at the end of the State’s case to amend the third count by adding for the first time the names of victims, where theretofore none had been named, would seem to represent an amendment going to actual substance and not to mere form. 97 Md.App. at 685 -86 n. 4, 632 A.2d 163 . If we had been correct in our holding that the evidence could not support a finding that the appellant’s creation of the risk was unjustified, then it was immaterial whether one person or a hundred persons had been subjected to what was a justified risk. Accordingly, there was no occasion for us to address the possible duplicity of the third count: There would be an additional problem of how seven crimes against seven victims could be charged in a single count. What would be the double jeopardy implications, for instance, if following, arguendo, the granting of a judgment of acquittal with respect to three victims, the overturning of the convictions of two more on the ground that the evidence was not legally sufficient, and the overturning of the convictions of the other two on some mere evidentiary ground, that count with respect to those two final victims was remanded for possible retrial?

Fortunately, none of these problems is before us in this case and we intimate no answers with respect to them. The law of reckless endangerment is still relatively unplowed ground. 97 Md.App. at 686 n. 4, 632 A.2d 163 . All of these issues are now very much alive. The Factual Background In State v. Albrecht, 336 Md. at 479-82 , 649 A.2d 336 , Judge Raker fully and articulately summarized the circumstances ⁵³ that immediately preceded the fatal shooting of Rebecca Gar-nett: The basic facts of this case are undisputed.

On the afternoon of May 23, 1991, Montgomery County Police Officers Christopher Albrecht and Marvin Thomas were dispatched to Fairhaven Drive in Gaithersburg, Maryland, to investigate a reported stabbing. Upon arriving at the scene, the officers were informed that a fight had broken out between Timothy Fair and three young men and that Fair had been stabbed in the back with a broken bottle by Darnell Budd, whom Albrecht knew by name. Witnesses at the scene also told the officers that the three men involved in the fight were known to be drug dealers and that the three might have been involved in a robbery. The officers were told that Budd had left the Fairhaven Drive area in a green Chevrolet driven by Rebecca Garnett.

One witness warned the officers that there might be a gun in the Chevrolet, although no one at the scene reported seeing any of the individuals involved with a gun. While the officers were still at the scene, a witness saw the green Chevrolet pass by and shouted “There goes the car.” Albrecht saw three people in the car as it passed: a female, who was driving, and two black male passengers. Thomas and Albrecht both got into their cruisers and set off in pursuit. Although the officers initially lost sight of the Chevrolet, after a brief search of the surrounding neighborhood Albrecht spotted the car in a parking lot at Larchmont Terrace, a townhouse complex in Montgomery County.

The car was parked perpendicular to the curb with the front end facing the street. The driver, Rebecca Garnett, and one of the male passengers, whom Albrecht recognized as Darnell Budd, had exited the car and were standing in the parking lot. The other male passenger, James Littlejohn, remained in the back seat of the car. The car was parked directly in front of a neighborhood playground.

The documentary evidence presented at trial showed the Garnett stood no more than six feet from the sidewalk that ran in front of the playground area. In photographs from the scene, some ⁵⁴ playground equipment, including a slide, is visible directly behind' the spot where Rebecca Garnett stood. A swingset is visible to the rear and the right of where Garnett stood. Both the slide and swingset appear to be set approximately ten to fifteen feet behind the sidewalk.

At the time that Albrecht spotted the Chevrolet—which was approximately 7 p.m.—it was still, daylight and there were several- children and adults both in the playground area, on the sidewalk running behind the Chevrolet and in front of the playground, and on the surrounding street. Albrecht brought his police cruiser to a stop in front of and to the right of the driver’s door of the Chevrolet. At that time, Garnett was standing next to the closed driver’s side door, holding a bag of Frito’s in one hand. Her other hand was empty.

Budd stood by the passenger side door. Littlejohn, still in the car, appeared to be either sitting on the back seat or kneeling down on the floorboards of the car’s rear passenger compartment. As Albrecht was parking his cruiser, he saw Garnett and Budd exchange words and begin to move towards the Chevrolet, appearing to him as if they were going to try to leave the scene. Exiting his cruiser, Albrecht yelled, “Stop!

Freeze!” and, at the same time, removed his shotgun from its rack inside his vehicle. Witnesses at the scene reported also hearing a command to “Put your hands in the air.” Albrecht, standing behind the open door of his cruiser, then immediately placed a shotgun shell in the chamber of the shotgun and “racked” the shotgun into its final stage of firing capability. He then leveled his shotgun at Garnett, who stood approximately' thirty-seven feet away from him. Witnesses at the scene testified that Albrecht, looking down the barrel of the gun, aimed his shotgun directly at Garnett.

Officer Thomas arrived at Larchmont Terrace a matter of seconds after Albrecht. Thomas moved his police cruiser into a position in front of and to the left of the Chevrolet. The manner in which Albrecht and Thomas parked their cruisers was in accordance with standard police procedure by which officers use their vehicles for cover while attempt ⁵⁵ ing to effectuate an arrest. When Thomas first exited his cruiser, he did not remove his shotgun from its rack inside his vehicle.

Upon hearing the racking of Albrecht’s shotgun, however, Thomas reached back into his cruiser and removed his own. Both Thomas and Albrecht were using Remington Wingmaster Model 870 shotguns, the standard model shotgun issued to Montgomery County police officers. As manufactured, the shotgun holds four rounds of ammunition. Albrecht, however, had customized his weapon by fitting it with a bandolier, or sling, that held fifteen extra rounds of ammunition and added 2.39 pounds to the weight of his weapon.

Albrecht testified that he kept his shotgun pointed at Garnett until he decided that she did not pose any danger to him or to any other person. After “checking off” Garnett as a threat, Albrecht testified that he intended to swing the shotgun to the left in order to bring it to bear on Littlejohn and Budd. The shotgun, however, discharged and struck Garnett in the chest. Garnett died almost immediately.

Witnesses at the scene testified that Albrecht was steadily holding the shotgun and directly aiming it at Garnett at the time that the weapon discharged. Although Albrecht saw Garnett sink to the ground after his gun had fired, he testified that he thought that she was simply sitting down so as to comply with his orders to “stop” and “freeze” and that he did not realize that she had been shot. Shouting “I told you not to move,” Albrecht immediately racked a second round into the shotgun’s chamber as a result, Albrecht testified, of “realizing my gun went off.” He and Thomas then approached the Chevrolet and placed Budd and Littlejohn under arrest. After Budd and Littlejohn had been arrested, Albrecht turned his attention to Garnett.

(Footnote omitted.) The Pleading Problem: Multiplicity or Duplicity? Absent some third theory that we cannot even imagine, the unit of prosecution in a reckless endangerment case has to be either 1) the reckless act of the defendant creating a substan ⁵⁶ tial danger of harm or 2) each person endangered by such reckless act. Whichever way that issue is resolved, the State has a pleading problem. If the unit of prosecution is the reckless act itself, there is a single crime whether one person or a hundred persons are endangered by that act.

Although it would be indispensable that at least one human being be recklessly endangered, the identification of a particular victim or victims would be surplusage. In the context of this case, the second and third counts of the indictment would have charged the appellant with precisely the same crime. Such multiplicious charging would be erroneous per se and the multiple conviction under the redundant third count would have to be reversed. W.R. LaFave & J.H. Israel, 2 Criminal Procedure (1984), § 19.2(e) at 457-58, discusses the problem of the multiplicious charge: A multiplicious indictment charges a single offense in several counts....

The principle danger in multiplicity is that the defendant will receive multiple sentences for a single offense, although courts have noted that multiple counts may also work against defendant by leading the jury to believe that defendant’s conduct is especially serious because it constitutes more than one crime. Multiplicity does not require dismissal of the indictment. The court may respond to a successful objection by requiring the prosecutor to elect one count, consolidating the various counts, or simply advising the jury that only one offense is charged. If the objection is first raised after conviction, the defendant will be entitled to relief from an improperly imposed multiple sentence ...

(Footnotes omitted.) And see Brown v. State, 311 Md. 426 , 432 n. 5, 535 A.2d 485 (1988). The reversal would be based on a double jeopardy problem of the autrefois convict variety guarding against the danger of multiple punishment for a single offense. Self-evidently, a retrial on the multiplicious count would be barred. ⁵⁷ If, on the other hand, the unit of prosecution is each individual person who has been recklessly endangered, the indictment in this case was not multiplicious. There would be no reason why the appellant could not have been convicted of the reckless endangerment of Rebecca Garnett under the second count and also have been convicted of the separate crime of recklessly endangering some other person under the third count.

In terms of the amended indictment in this case, however, the State might simply be jumping from the frying pan into the fire, exchanging the error of multiplicious charging for the error of duplicitous charging. W.R. LaFave & J.H. Israel, 2 Criminal Procedure (1984), § 19.2(e) at 457, discusses the problem of the duplicitous charge: Duplicity is the charging of separate offenses in a single count. This practice is unacceptable because it prevents the jury from deciding guilt or innocence on each offense separately and may make it difficult to determine whether the conviction rested on only one of the offenses or both. Duplicity can result in prejudice to the defendant in the shaping of evidentiary rulings, in producing a conviction on less than a unanimous verdict as to each separate offense, in sentencing, in limiting review on appeal, and in exposing the defendant to double jeopardy.

Duplicity usually occurs because of prosecutor error in assuming that a particular statute creates a single offense ... rather than several offenses. (Footnotes omitted.) If the conviction on the third count were to be based on a holding that the count was duplicitous, a retrial on a charge or charges properly pleaded would not necessarily be barred. The issue, thus, is squarely before us of what is the appropriate unit of prosecution for the crime of reckless endangerment? The Unit of Prosecution The crime of Reckless Endangerment is new in Maryland.

It was enacted by Ch. 460 of the Acts of 1989. See Minor v. ⁵⁸ State, 85 Md.App. 305, 313-15 , 583 A.2d 1102 (1991) and Minor v. State, 326 Md. 436 , 605 A.2d 138 (1992). It is codified in Md.Ann. Code art. 27 § 120 (1992), which provides in pertinent part: (a) Any person who recklessly engages in conduct that creates a substantial risk of death or serious physical injury to another person is guilty of the misdemeanor of reckless endangerment and on conviction is subject to a fine not exceeding $5,000 or imprisonment not exceeding 5 years or both. For the reasons that follow, we hold that the unit of prosecution for the crime of Reekléss Endangerment is each person who is recklessly exposed to the substantial risk of death or serious physical injury.

Before immersing ourselves in the minutiae of the case law, it behooves us for a moment to stand on the mountaintop and look down on the larger field of the criminal law in perspective, for sometimes insight is permitted us in macrocosm that is not always suffered us in microcosm. It is with the benefit of this larger perspective that the academic writers perceptively group crimes into such categories as crimes against property, crimes against habitation, crimes against public morals, and crimes against persons. Although in actuality a particular crime may overlap several of these categories, the accepted categorization nonetheless serves to capture the essential nature of a criminal prohibition. In this sense, the crime of Reckless Endangerment is quintessentially a crime against persons.

It is an inchoate crime and is intended to deal with the situation in which a victim is put at substantial risk of death or serious bodily harm but may, through a stroke of good fortune, be spared the consummated harm itself. By identifying the consummated crime or crimes to which a particular inchoate crime is incipient, we are better able to appreciate the essential character and the basic purpose of the inchoate crime itself. In Williams v. State, 100 Md.App. 468, 480-490 , 641 A.2d 990 (1994), we analyzed at length the inchoate nature of ⁵⁹ reckless endangerment and identified the various forms of criminal homicide and battery, intended and unintended, to which reckless endangerment was inchoate. We observed: As with all inchoate crimes, reckless endangerment was intended to plug a gap in the law.

Inchoate crimes are designed to inhibit criminal conduct before it goes too far or to punish criminal conduct even when, luckily, it misfires. Reckless endangerment is, indeed, doubly inchoate. At the actus reus level, it is one element short of consummated harm. At the mens rea level, it is one element short of the specific intent necessary for either an attempt or for one of the aggravated assaults. 100 Md.App. at 481 , 641 A.2d 990 .

Confining ourselves to that side of the ledger where there has been no intent to inflict harm on anyone, the consummated crimes that could, with a stroke of bad fortune, eventuate from a reckless endangerment are several. Should the harm that is risked come to pass and should death result, such homicide, depending on the degree of recklessness, might be either involuntary manslaughter of the gross negligence variety (as in the case of Rebecca Garnett here) or second-degree murder of the depraved-heart variety. Should the injury to the person be in the form of non-fatal but nonetheless serious bodily harm, the consummated crime would be battery of the unintended variety. In any event, the entire range of consummated crimes from which the inchoate crime of Reckless Endangerment is either one step removed (no actual harm) or two steps removed (neither actual harm nor intent to harm) represents the very paradigm of crime against the person—homicides and batteries and assaults, simple and aggravated, intended and unintended.

In all of their forms and degrees, they are classically crimes against the person. It is even so with this newest inchoate addition to that inherently dangerous family. We turn to the case law. With intentional homicide or any intentional crime of violence, the unit of prosecution is so self-evident that the issue seldom, if ever, arises.

In dicta, ⁶⁰ however, we did note in Albrecht v. State, 97 Md.App. 630, 685-86 . n. 4, 632 A.2d 163 : With intentional crimes of violence, it is clear that the unit of prosecution is each separate victim. To explode a bomb on an airplane containing 300 passengers and crew constitutes 300 murders, not one. In Blackwell v. State, 278 Md. 466 , 365 A.2d 545 (1976), the defendant committed one act of arson by throwing three bottles of gasoline into the window of a house with the intent to force a former girlfriend out of the house. Notwithstanding that single act, he was convicted on six charges of first-degree murder, one for each of the six persons who died in the fire.

Smith v. State, 31 Md.App. 106 , 355 A.2d 527 (1976), was a case in which the defendant feloniously set fire to a bar and restaurant wherein seven persons were sleeping on an. upper floor. Two of them were killed in the fire. The appellant was convicted for that single criminal act of two counts of murder and two counts of arson. Arson, like burglary, is generally conceptualized as a crime against habitation.

In the Smith case, therefore, the unit of prosecution for arson was determined to be the structure that was burned and the multiplication of the arson charge by two was not permitted. One of the arson convictions was, therefore, vacated, as redundant. Both murder convictions, on the other hand, were affirmed. Murder, unlike arson, is a crime against the person.

The unit of prosecution is each person murdered. The multiplication of the charge by two, therefore, inappropriate with respect to arson, was perfectly appropriate with respect to murder. Armed robbery is a classic example' of a crime against the person and so is its attendant crime of using a handgun in the commission of an armed robbery. In Brown v. State, 311 Md. 426 , 535 A.2d 485 (1988), the Court of Appeals affirmed six armed robbery convictions and six separate convictions for the use of a handgun in the perpetration of a crime of violence against the defense’s challenge that there were but two armed robberies and two handgun offenses that had been perpetrated.

Consolidated for consideration were two separate epi ⁶¹ sodes of armed robbery, each involving a single criminal act but the first involving two simultaneous victims and the second involving four simultaneous victims. The appellant did not seriously challenge the multiplying of the armed robbery charges by the number of victims but strenuously challenged the multiplying of the handgun charges by the number of victims. The Court of Appeals, 311 Md. at 434 , 535 A.2d 485 , quoted with approval our opinion in Manigault v. State, 61 Md.App. 271, 279 , 486 A.2d 240 (1985), in concluding: Brown contends that the unit of prosecution of § 36B(d) is the criminal transaction. He rests his argument on the assumption that “whether a felon robs a single individual, or hypothetically fifty people at a social gathering, there still remains only one ‘use’ of the handgun.” Under Brown’s theory, then, an individual who uses a handgun in a criminal transaction which results in one or more felony or violent misdemeanor convictions has committed only one handgun use offense regardless of the number of felony or violent misdemeanor convictions.

The State, on the other hand, maintains that the unit of prosecution is the crime of violence and relies on the following passage from Battle v. State, 65 Md.App. 38, 50 , 499 A.2d 200, 206 (1985), cert. denied, 305 Md. 243 , 503 A.2d 252 (1986) (quoting Manigault v. State, 61 Md.App. 271, 279 , 486 A.2d 240, 244 (1985)): “A single criminal episode may, of course, give rise to a number of separate charges, some of which may be multiplied but some of which may not. The key is to identify the unit of prosecution. Both an aggravated assault (Count 1) and a simple assault (Count 2) may he multiplied when there are multiple victims. The unit of prosecution is the victim.

With respect to the use of a handgun to perpetrate a crime of violence (Count 4), the unit of prosecution is the crime of violence. Assuming that the other elements have been proved, two victims imply two crimes of violence. That, in turn, implies two separate crimes of using a handgun to commit a crime of violence.” ⁶² Thus, under the State’s theory, the number of handgun use offenses will equal the number of felony or violent misdemeanor convictions. We agree with the construction advanced by the State.

(Emphasis supplied.) Brown went on to hold with respect to the multiple handgun convictions: We are convinced that multiple handgun use convictions and sentences are appropriate where there are multiple victims. Brown’s use of a handgun put each victim in the cases at bar in fear of death or serious bodily harm. Punishment for criminal conduct should be commensurate with responsibility and a defendant who terrorizes multiple persons with a handgun is more culpable than a defendant who terrorizes only one.' (Emphasis supplied.) 311 Md. at 436 , 535 A.2d 485 . A similar result was reached by Judge Alpert in Battle v. State, 65.Md.App. 38, 51, 499 A.2d 200 (1985): Here there was one criminal episode—the use of the handgun in the robbery of the two employees at Bernard’s.

But there were convictions for two crimes of violence, proper in light of Jackson. That a crime is inchoate rather than one involving consummated harm is immaterial in terms of computing the units of prosecution. In Jackson v. State, 63 Md.App. 149 , 492 A.2d 346 (1985), rev’d on other grounds sub nom. Cherry v. State, 305 Md. 631 , 506 A.2d 228 (1986), the defendant fired a single shot at two pursuing police officers.

Notwithstanding his claim that this constituted but a single criminal act on his part, we affirmed the multiple convictions for two separate charges of assault with intent to murder. Judge Bishop observed: Appellant argues that he cannot be convicted or sentenced for two counts of assault with intent to murder because, at best, the State proved that appellant fired only one shot at the two pursuing police officers. The essence of appellant’s argument is that where one criminal incident ⁶³ results in multiple victims, it is necessarily but one offense. This contention is without merit. 63 Md.App. at 157 , 492 A.2d 346 .

In Hall v. State, 69 Md.App. 37 , 516 A.2d 204 (1986) cert. denied, 308 Md. 382 , 519 A.2d 1283 (1987), Judge Karwacki, dealing with three aggravated assaults with intent to prevent lawful apprehension, rejected a similar defense claim that the crime should not be multiplied by the number of assault victims. He observed: The appellant’s final argument related to the aggravated assault convictions is that because the evidence disclosed his firing only two shots, it cannot support convictions of assault with intent to prevent lawful apprehension upon three victims. This same argument was considered and rejected by this Court in Jackson v. State, where the appellant was convicted of two counts of assault with intent to murder despite firing only one shot at two pursuing police officers. (Citation omitted). 69 Md.App. at 50 , 516 A.2d 204 .

See also Cousins v. State, 277 Md. 383 , 354 A.2d 825 (1976) (where defendant wielded a knife against two store detectives, acquittal on charge of assaulting one detective did not bar subsequent prosecution for assault against the other detective because the two were separate offenses); Harris v. State, 42 Md.App. 248, 258 , 400 A.2d 6 , rev’d on other grounds sub nom. Countess v. State, 286 Md. 444 , 408 A.2d 1302 (1979) (“assaults against multiple victims arising out of the same criminal incident are separate and distinct crimes”). Even in the case of an unintentional crime—where neither the harm nor even the threatening of harm is intended—the unit of prosecution remains each individual subjected to the harm or risk of harm. In Savoy v. State, 67 Md.App. 590 , 508 A.2d 1002 (1986), we affirmed convictions on two separate counts of automobile manslaughter and two separate and consecutive five-year sentences in a case arising out of a single incident of grossly negligent driving.

The issue in that case was virtually indistinguishable from the one now before us. ⁶⁴ “In appellant’s view, despite the occurrence of two deaths, only one sentence is permissible under Art. 27 § 388 because only one incident of grossly negligent driving took place.” 67 Md.App. at 592 , 508 A.2d 1002 . Speaking through Judge Bishop, we rejected that contention. “[W]e have held that where a single criminal incident results in multiple victims, the number of victims can determine the number of violations.” Id. at 594 , 508 A.2d 1002 . The only distinction between the conduct of the appellant in this case and the conduct of the defendant in Savoy is that that case involved the grossly negligent driving of an automobile, whereas this case involved the grossly negligent handling of a shotgun. Whatever the instrumentality, the common denominator is gross negligence.

Had the shotgun blast in this case killed not only Rebecca Garnett but also a hypothetical second victim, there can be no doubt that the appellant would have been guilty of two involuntary manslaughters and not one. Ratcheting the harm downward one step, if Rebecca Garnett and the hypothetical second victim had been hit by the blast but not killed, there can be no doubt that the appellant would have been guilty of two unintended batteries and not one. Ratcheting the harm downward another step, had the blast gone over the heads of Rebecca Garnett and the hypothetical second victim so that neither was injured, there can similarly be no doubt that the appellant would have been guilty of two reckless endangerments and not one. The Savoy opinion found support for the decision in various quarters.

One was the legislative reference to an automobile manslaughter victim in the singular: [T]he plain language of the statute is in the singular using the words “death of another,” and not “death of others.” Since it is manifestly apparent that a single grossly negligent act may involve several victims, use of the singular “death of another” in the statute evinces a clear legislative intent to impose separate punishment for each victim killed, and not, as appellant argues, for each incident of negligent driving. ⁶⁵ 67 Md.App. at 594 , 508 A.2d 1002 . Just as the automobile manslaughter statute uses the phrase “death of another” rather than “deaths of others,” so too does the reckless endangerment statute speak of a substantial risk of death or serious physical injury “to another person” rather than “to others” or “to other persons.” Judge Bishop also took note of a number of cases in which “multiple convictions and sentences [have] resulted] from a single incident of grossly negligent driving,” 67 Md.App. at 593 , 508 A.2d 1002 , citing Willis v. State, 302 Md. 363, 369 , 488 A.2d 171 (1985) (two convictions under § 388, total sentence of five years); State v. Moon, 291 Md. 463, 464-65 , 436 A.2d 420 (1981) (two convictions and maximum sentences under § 388, sentences running concurrently); Boyd v. State, 22 Md.App. 539, 540 , 323 A.2d 684 , cert. denied, 272 Md. 738 (1974) (two convictions and maximum sentences under § 388, sentences running concurrently). We reiterate our holding that the unit of prosecution for the crime of Reckless Endangerment is each person who is recklessly exposed to the substantial risk of death or serious physical injury. No Multiplicity As a direct result of that holding, it necessarily follows that the third count of the indictment was not, as urged by the appellant, multiplicious.

The second count charged the reckless endangerment only of Rebecca Garnett specifically. Whatever else the third count may or may not have charged, it charged something other than the reckless endangerment of Rebecca Garnett and did not, therefore, redundantly charge the same offense already charged under the second count. Hence, no multiplicity. The Failure of the Third Count To Charge An Offense Accepting, arguendo, that our holding might be that each person recklessly endangered is a separate unit of prosecution, the appellant turns from an attack on the redundancy of ⁶⁶ the third count to an attack on its inadequacy to charge an offense.

His position is that if the endangerment of a specific person is a necessary element of the crime of Reckless Endangerment, the failure of the third count to identify a specific victim was as fatal to the charge as would have been the failure to identify a homicide victim to a count charging murder or manslaughter. The appellant would grant that there are circumstances in which the identity of a victim might not be ascertainable and that in such a case the victim might be identified as one whose identity is “to the grand jurors unknown.” The appellant further urges, however, that this is not such a case and that the initial designation in the third count of the persons recklessly endangered simply as “other person(s) present on Larchmont Terrace” was nothing more than a blithe generality that ignored the significance of a designated victim as a necessary element of the crime. We are not unmindful in this regard of the observation of Judge Delaplaine in Adams v. State, 202 Md. 455, 458-59 , 97 A.2d 281 (1958), rev’d on other grounds, 347 U.S. 179 , 74 S.Ct. 442 , 98 L.Ed. 608 (1954): One of the early rules of the common law was that the name of a person necessary for complete description of a crime should be stated in the indictment, if the name of such person is known. The obvious reason for this rule is that every person indicted for a crime is entitled to be informed of the nature of the charge as precisely as possible to enable him to properly prepare his defense.

State v. Rappise, 3 N.J.Super. 30 , 65 A.2d 266 . However, in order to prevent a failure of justice, it is now generally accepted that if the name of a person necessary for complete description of a crime is unknown to the grand jurors, they are justified in alleging that the name of such person is unknown to them. In response to this complaint, the State urges that the issue has not been preserved for appellate review. The State looks to Md.Rule 4-252, which provides that certain mandatory motions, including one alleging a “defect in the charging ⁶⁷ document,” must be filed not only pretrial, but within the specific deadline established by subsection (b).

The State alleges that this attack on the adequacy of the charge was not raised until the appellant made a motion for judgment of acquittal at the end of the State’s case and, therefore, was woefully too late to preserve the issue for appellate review. The State has overlooked, however, the complete wording of subsection (a)(2), which imposes the mandatory filing requirement only on “a defect in the charging document other than its failure to show jurisdiction in the court or its failure to charge an offense.” (Emphasis supplied.) The appellant’s attack on the failure of the third count to charge an offense is covered, rather, by subsection (c), which provides in pertinent part: A motion asserting failure of the charging document ... to charge an offense may be raised and determined at any time. When the appellant finally took the State to task for its failure to designate any victim in the third count, the State immediately loaded the count with a surfeit of seven victims. Although it may have sinned anew by way of excessive response, it certainly atoned for its original stinginess in terms of naming a victim.

In any event, our conclusion that the third count was fatally defective in another respect makes it unnecessary for us to decide 1) whether the count as initially drawn failed to charge an offense or 2) if that should be the case, what the consequences would be. Amendments: Of Substance and of Form The appellant takes additional umbrage at the amending process itself, claiming that the amendment to the third count was impermissibly one of substance and not merely of form. Corbin v. State, 237 Md. 486, 489-90 , 206 A.2d 809 (1965), attempted to describe just what this contrast between substance and form connotes: ⁶⁸ As to what constitutes substance and what is merely formal in an indictment, it may be said that all facts which must be proved to make the act complained of a crime are matters of substance, and that all else—including the order of arrangement and precise words, unless they alone will convey the proper meaning—is formal. We have held in the past that a criminal charge must so characterize the crime and describe the particular offense so as to give the accused notice of what he is called upon to defend and to prevent a future prosecution for the same offense.

(Citations omitted). See also Thanos v. State, 282 Md. 709, 712-16 , 387 A.2d 286 (1978). Generally speaking, amendments that have been deemed to be merely changes of form have been such things as a clerical correction with respect to the name of a defendant, the substitution of one name for another as a robbery victim, a change in the description of money, changing the name of the owner of property in a theft case, and changing the date of the offense. An amendment as to substance, by contrast, would change the very character of the offense charged.

In the days before the consolidated theft statute, an amendment that would have changed a larceny into a larceny after trust or into an embezzlement or into a receiving of stolen goods would self-evidently be one of substance. In Thanos v. State, 282 Md. 709 , 387 A.2d 286 (1978), an amendment of a shoplifting charge from one alleging the altering of a price tag to one alleging the removal of the price tag was deemed to have been an impermissible amendment as to substance. In Busch v. State, 289 Md. 669, 673 , 426 A.2d 954 (1981), the Court of Appeals observed: We think it equally clear that the basic description of the offense is indeed changed, not only when the amended charge requires proof of an act different from the act originally charged, but also when the amended charge requires proof of acts additional to those necessary to prove the offense originally charged. After an offense has been charged, another offense that requires proof of a different ⁶⁹ or additional act may not be substituted for the offense originally charged on the theory that such an amendment is simply a matter of form.

None of this case law, however, squarely addresses the problem here raised by the appellant. All of the amendments that have been the subject of prior appellate analysis, whether they have changed the nature of the offense or not, have been internal amendments within the boundaries of a single offense. That is not what is before us. If it is not permitted to amend a charge so as to change the essential character of a single offense, it would seem, a fortiori, to be impermissible to add totally new offenses to the charge.

Quite aside from any question of whether the amended charge would otherwise be fatally flawed, it would seem that an amendment resulting in the charging of seven offenses where theretofore there had been but one, or none, would be preeminently an amendment going to substance. It would be an amendment, as Gyant v. State, 21 Md.App. 674 , 321 A.2d 815 , cert. denied, 272 Md. 742 (1974), prefers to phrase it, that would change (by multiplication) the character of the charge. Indeed, the precise wording of Maryland Rule 4-204 is, in pertinent part: On motion of a party or on its own initiative, the court at any time before verdict may permit a charging document to be amended except that if the amendment changes the character of the offense charged, the consent of the parties is required. (Emphasis supplied.) Linguistically, of course, we may have a distinction without a difference.

What was traditionally referred to as an impermissible amendment going to substance would now, ipso facto, be referred to as an equally impermissible “amendment changing] the character of the offense.” Similarly, what was traditionally a permissible amendment going only to form would not be deemed to be a forbidden changing of “the character of the offense.” Plus ca change, plus c’est la meme chose. ⁷⁰ Once again, however, our conclusion that the third count was fatally defective in another respect relieves us of the necessity of dealing.with the propriety of the amendment. The Duplicity of the Third Count Assuming, arguendo, that precise and timely objection had not been made to the amending process itself, but only to the substantive content of the count as ultimately amended, what then would we have? We would have exactly what is before us in this case—an amended third count that was fatally duplicitous. It would be before us just as if it had come from the Grand Jury in freshly minted, albeit duplicitous, form with no amending process having been involved.

Maryland Rule 4-203(a) permits, under certain circumstances, the charging of multiple offenses in a single indictment, provided each such offense is charged in a separate count: Two or more offenses, whether felonies or misdemeanors or any combination thereof, may be charged in separate counts of the same charging document if the offenses charged are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan. (Emphasis supplied.) The general rule was well stated in Weinstein v. State, 146 Md. 80 , 125 A. 889 (1924), a case wherein the Court of Appeals reversed a conviction because a duplicitous count charged two distinct offenses: One of the appellant’s objections to that indictment is that it includes in a single count charges of two several distinct, separate and unconnected offenses, and is therefore, duplicitous. If that objection is true in fact, it is in our opinion sound in law. For if two distinct crimes are charged in the same count, although they may believe him guilty of the other, the jury trying the case must nevertheless either convict the traverser of both or acquit him of both, since in such a case as this there could be under the laws of this ⁷¹ State no splitting of the verdict____ (Emphasis supplied.) (Citations omitted.) Id. at 83 , 125 A. 889 .

The trial judge here did on the third count the very thing that Weinstein said no jury is ever permitted to do. He split the verdict—not guilty as to three victims but guilty as to four others. See also State v. Warren, 77 Md. 121 , 26 A. 500 (1893); Mohler v. State, 120 Md. 325, 327 , 87 A. 671 (1913). Kirsner v. State, 183 Md. 1, 5 , 36 A.2d 538 (1944), was also a case in which the Court of Appeals reversed a conviction because of duplicitous pleading.

(“It is the general rule of the common law that an indictment should not charge in the same count the commission of two or more substantive offenses, and in the event that it does so it is objectionable because of duplicity.”) See also Jackson v. State, 176 Md. 399, 401 , 5 A.2d 282 (1939). This Court first reversed a conviction because of duplicitous pleading in Morrissey v. State, 9 Md.App. 470, 473-74 , 265 A.2d 585 (1970). Chief Judge Murphy (now Chief Judge of the Court of Appeals) there observed: The object of all pleading, civil and criminal, is to present a single issue in regard to the same subject matter; hence, it is against this fundamental rule to permit two or more distinct offenses to be joined in the same count. It is, therefore, the general rule that an indictment charging the commission of two or more substantive offenses in the same count is objectionable as being duplicitous.

See also Maryland Rule 716a, [now Rule 4-203(a) ] providing that “Two or more offenses may be charged in the same indictment in a separate count for each offense.” (Emphasis supplied.) (Citations omitted.) In Ayre v. State, 21 Md.App. 61 , 318 A.2d 828 (1974), we reversed a conviction because of our conclusion that the charging document “was fatally defective because it lumped all the offenses in one charge rather than having a separate charge for each