Allen v. State

BARBERA, J. This case involves the crime of what formerly was referred to as “unauthorized use” of an automobile. The offense has long been a part of Maryland’s statutory criminal law, and for many years could be found at Maryland Code (1957, 1996 Repl.Vol.), Art. 27, § 349. In 2002, the General Assembly reworded and re-codified the offense, and it is now located at Maryland Code (2002), § 7-203 of the Criminal Law Article (“CL”). Unlike the lengthy description of the conduct prohibited by its predecessor statute, 1 CL § 7-203 is cast in relatively simple terms.

The current law defines the prohibited conduct ⁵⁴⁷ as follows: “Without the permission of the owner, a person may not enter or be on the premises of another, and take and carry away from the premises or out of the custody or use of the other, or the other’s agent, or a governmental unit any property, including: (1) a vehicle; (2) a motor vehicle; (3) a vessel; or (4) livestock.” CL § 7-203(a). 2 As we shall see, the changes to the statute are more than stylistic. Ronald Robert Allen, appellant, was convicted of violating CL § 7-203. He presents on appeal the sole question of ⁵⁴⁸ whether the State presented legally sufficient evidence to prove that he committed that crime. Arriving at the answer to that question requires construction of the language of CL § 7-203, which leads to the conclusion that the General Assembly, whether by design or not, substantively changed the law of unauthorized use.

No longer does the offense have as one of two alternative means of committing it the mere unlawful removal of a motor vehicle from the custody of another. Now, the offense has as a required element that the accused have entered or been present on premises of another from which the property is taken or carried away (or custody or use of it works a deprivation to the other), without permission of the owner. Allen was charged with violating CL § 7-203 for having been found in Maryland in possession of a motor vehicle that had been stolen a month earlier from a dealership in Fairfax County, Virginia. That undisputed fact exposes a question about the prosecution of this case that neither Allen nor the State recognized, but which we shall consider nonetheless, namely, where precisely did the crime occur, Virginia or Maryland?

For the reasons we shall discuss, we conclude that the offense proscribed by CL § 7-203 is committed in Maryland if it can be proven that the accused possessed the property in Maryland, even if the property was unlawfully removed from premises located outside of Maryland. But, the State must also prove that the accused participated in the removal of the property from those premises. In this case, the State’s evidence demonstrated that Allen was found in exclusive possession of the stolen motor vehicle in Prince George’s County, one month after it had been stolen from the Virginia dealership. By application of the principle that it can be inferred from the exclusive possession of recently stolen goods that the possessor is the thief, we hold that the evidence offered at Allen’s trial is sufficient to support his conviction under CL § 7-203.

We therefore affirm the judgment. ⁵⁴⁹ FACTS AND PROCEEDINGS During the early morning hours of October 28, 2003, several GMC Hummers were delivered from General Motors to Moore Cadillac, a car dealership in Vienna, Fairfax County, Virginia. The Hummers were parked in the dealership parking lot and the paperwork and keys for them were left in a night drop slot at the dealership. Each Hummer had two sets of keys, but the driver unloading the trucks notified the dealership that one set of keys was missing from one of the Hummers. On November 5, 2003, someone sought to purchase the Hummer that had the missing set of keys.

Employees of the dealership went to the lot to prepare the Hummer for sale, but could not locate it. The next day, the police were called and the Hummer was reported stolen. On December 5, 2003, Officer Gerald Caver of the Prince George’s County Police Department was on routine patrol on Marlboro Pike when he noticed a gray Hummer. He ran a computer check on the Hummer’s license tag number to determine if the tags had been stolen.

He learned that the tags were stolen, so he stopped the vehicle. Allen was driving the Hummer. There were no other occupants. Officer Caver advised Allen that the tags were stolen.

According to the officer, Allen responded that the vehicle was not stolen; it belonged to his brother. Officer Caver then ran the vehicle’s identification number through the dispatcher and learned that the Hummer, too, was stolen. Officer Caver placed Allen under arrest. The missing set of keys was found inside the Hummer.

A Prince George’s County grand jury handed down an indictment charging Allen in count one with felony theft, in violation of CL § 7-104; in count two with motor vehicle theft, in violation of CL § 7-105, in count three with “unauthorized use of motor vehicle,” in violation of CL § 7-203; and in count four with misdemeanor theft (the license tags), in violation of CL § 7-104. At the outset of trial the State moved to amend count three to charge a violation of CL § 7-104(a), instead of ⁵⁵⁰ CL § 7-203. Allen objected and the court denied the motion on the ground that the proposed amendment was substantive. In opening statement, the State told the jury that the Hummer was stolen from “Moore Cadillac Hummer dealership of Vienna, Fairfax County, Virginia.” During its case-in-chief, the State introduced the articles of merger and agreement and plan of merger for the dealership, as well as the dealership’s license, which presumably showed that the dealership was located in Virginia. 3 The State also offered the testimony of David Harris, the sales manager at Moore Cadillac, and Officer Caver, who recounted what we summarized above.

At the close of its case, the State nol grossed count four, misdemeanor theft. Allen moved for judgment of acquittal on the remaining counts. With regard to the count charging unauthorized use, Allen argued that the State failed to establish that he entered the dealership and took the Hummer away from those premises. Allen did not argue that the State lacked territorial jurisdiction to prosecute the offense.

The court reserved ruling on the motion until the close of all of the evidence. Allen and his mother testified in the defense case. Allen’s mother testified that he was in Florida when the Hummer was stolen from the dealership. Allen, in turn, denied taking the Hummer from the dealership and denied knowing that it was stolen.

He testified that the Hummer belonged to an acquaintance, Marcus Robinson, at whose home Allen had spent the previous night and who had given Allen permission to borrow the Hummer on the morning Officer Caver stopped him. Allen did not call Marcus Robinson to testify. Allen re-raised the motion for judgment of acquittal at the end of all of the evidence. He repeated the arguments that he made at the end of the State’s case, and again did not mention ⁵⁵¹ the court’s lack of territorial jurisdiction.

The court denied the motion. The jury acquitted Allen of felony theft and theft of a motor vehicle and convicted him of unauthorized use. The court sentenced appellant to four years’ imprisonment, all but 90 days suspended, with three years’ probation upon release from incarceration. This appeal followed.

DISCUSSION Allen presents the sole complaint that the evidence was not legally sufficient to support his conviction under CL § 7-203. He maintains that, in its current form, the unauthorized use statute requires proof both that a person, without permission of the owner, entered or was present on the property where the motor vehicle (or other property) was taken, and that the person participated in the taking of such property from the premises or “out of the custody or use of another....” He claims that the State offered no evidence that he was present at the Virginia dealership and removed the Hummer from it. He also argues that the evidence falls short of establishing that he had the requisite knowledge that the Hummer was stolen. Appellant does not argue now, and, as we have mentioned, he did not argue at trial that the State lacked territorial jurisdiction to prosecute him for a violation of CL § 7-203.

The State responds that the evidence was legally sufficient to sustain the conviction. The State insists that it was only necessary to prove that Allen participated in the continued use of the Hummer under circumstances manifesting an intent to deprive the owner of possession of it. For that argument the State relies on case law concerning the crime of unauthorized use that pre-dates the enactment of CL § 7-203, which, as we shall discuss, is of little continued utility. “Unauthorized Use,” as it once was The General Assembly’s enactment of CL § 7-203 in 2002 was part of an effort to revise the Criminal Law Article, begun ⁵⁵² in 1998 and completed in 2002 with the adoption of Chapter 26, Acts of 2002. The effect of the recodification of the unauthorized use statute to its current form is best understood by reviewing, first, the immediate predecessor to the current statute, Art. 27, § 349, as well as the cases construing it and its nearly identically worded predecessor, Maryland Code (1951), Art. 27, § 415.

The full history of the offense of unauthorized use has been thoroughly discussed in previous opinions of the Court of Appeals and this Court, see In re Wallace W., 333 Md. 186 , 634 A.2d 53 (1993); In re Lakeysha P., 106 Md.App. 401 , 665 A.2d 264 (1995), so we do not restate that discussion here. It is sufficient for present purposes to examine the text of former Art. 27, § 349, the pertinent part of which we set forth below: Any person or persons, his or their aiders or abettors who shall enter, or being upon the premises of any other person ... against the will and consent of said person or persons ..., take and carry away any ... motor vehicle ..., or take and carry away out of the custody or use of any person ... any of the above-enumerated property at whatsoever place the same may be found, shall upon conviction thereof ... be adjudged guilty of a misdemeanor.... (Emphasis added). 4 Section 349 (and its predecessor, Art. 27, § 415) had four basic elements: (1) an unlawful taking; (2) an unlawful carrying away; (3) of certain designated personal property; (4) of another. See In re Lakeysha P., 106 Md.App. at 411 , 665 A.2d 264 .

Article 27, § 349, moreover, was written “in the disjunctive.” Thomas v. State, 277 Md. 257, 269 , 353 A.2d 240 (1976). The Thomas Court explained: “The offense can be established either by showing an entry [onto the premises of another] and a taking or by showing a taking of a vehicle [or other property designated in the statute] from wherever it. may be located.” ⁵⁵³ See id (emphasis added). See also Lakeysha P., 106 Md.App. at 410 , 665 A.2d 264 . It was the second of those two means of prohibited conduct (the unlawful taking and carrying away of the custody or use of the property of another, from wherever that property might be located) that was at issue in a line of cases dating back at least to 1952.

In those cases, the Court of Appeals and this Court upheld convictions of unauthorized use (whether under Art. 27, § 349 or Art. 27, § 415), based on evidence that the defendant did not participate in the taking of the property but did participate in the continued use of the property. Anello v. State, 201 Md. 164, 169 , 93 A.2d 71 (1952), is at the head of that line of cases. The Court of Appeals stated in Anello that the misdemean- or of unauthorized use (described at that time as “larceny by use”) does not require that the offender or his aiders or abettors have the intent of appropriating or converting property taken. Id at 167, 93 A.2d 71 .

Rather, the intent of the statute was to deprive the owner of his possession^ including] future possession^] and is not limited, as in common-law larceny, to a taking out of present possession. Therefore, participation in the continued use of the car after the original taking would manifest an intent to deprive the owner of his possession during such participation. Id at 167-68, 93 A.2d 71 . The Anello Court upheld the unauthorized use conviction of a passenger in a stolen car because circumstantial evidence supported the conclusion that the passenger possessed the requisite criminal intent.

Id at 168-69, 93 A.2d 71 . Several reported decisions followed on the heels of Anello . In each, the Court of Appeals or this Court upheld a conviction for unauthorized use based on evidence that the appellant participated in the continued unauthorized use of property unlawfully taken, notwithstanding the lack of evidence that the appellant was responsible for the unlawful taking. See e.g., Lee v. State, 240 Md. 160, 162 , 213 A.2d 503 (1965) (finding ⁵⁵⁴ that the evidence adduced at trial, which showed that the appellant was driving a stolen vehicle less than seven hours after the theft occurred, was sufficient to sustain the appellant’s conviction of unauthorized use); Spence v. State, 224 Md. 17, 19 , 165 A.2d 917 (1960) (affirming the appellant’s conviction of unauthorized use on the grounds that he participated in the continued use of the stolen vehicle after the original taking); Banks v. State, 2 Md.App. 373, 376-77 , 234 A.2d 798 (1967) (affirming the unauthorized use conviction of the appellant, who was a passenger in a stolen vehicle, despite the lack of direct evidence demonstrating that the appellant was responsible for the theft of the vehicle); Johnson v. State, 2 Md.App. 486, 491, 236 A.2d 41 (1967) (same).

See also In re Levon A, 124 Md.App. 103, 139 , 720 A.2d 1232 (1998) (restating the Anello principle that one “who participates in the continued use of [a] stolen car after the original taking may be found to have committed the offense of unauthorized use”) (internal quotation marks omitted). We repeat that the line of cases cited above, and on which the State relies in the instant case, involved the second of the two alternative means of committing the then-prevailing crime of unauthorized use. Again, the second means of committing what used to be the crime of unauthorized use does not require a trespassory entry upon the premises of another and a taking from those premises, but rather, only a “showing [of] a taking of a vehicle from wherever it may be located.” Thomas, 277 Md. at 269 , 353 A.2d 240 (emphasis added). The 2002 re-codification of the unauthorized use statute: a change in substance, or not?

Bearing in mind the language and construction of the former versions of the unauthorized use statute, we turn our attention to the current statute, CL § 7-203. To date, no reported decision has construed CL § 7-203, so we shall do so here. We must construe CL § 7-203 to discern the actual intent of the legislature in enacting it. See Chow v. State, 393 ⁵⁵⁵ Md. 431, 443-44, 903 A.2d 388 (2006).

We discern the legislature’s intent by application of the usual rules of statutory construction. See id. Those rules require first and foremost an examination of the language of the statute itself, and, absent an ambiguity in the statutory text, we “will neither look beyond the words of the statute itself to determine legislative intent nor add to or delete words from the statute.” Stanley v. State, 390 Md. 175, 182 , 887 A.2d 1078 (2005). That is to say, “ ‘[w]here the words of [the] statute, construed according to their common and everyday meaning, are clear and unambiguous and express a plain meaning,’ the Court will give effect to the statute as the language is written.” Id. at 184 , 887 A.2d 1078 (quoting Moore v. Miley, 372 Md. 663, 677 , 814 A.2d 557 (2003)); see Price v. State, 378 Md. 378, 387-88 , 835 A.2d 1221 (2003).

The portion of CL § 7-203 at issue in this case is found in subsection (a), which states the prohibition: “Without the permission of the owner, a person may not enter or be on the premises of another, and take and carry away from the premises or out of the custody or use of the other, or the other’s agent, or a governmental unit any property,” including, among the enumerated types of property, a motor vehicle. Of significance to the meaning of the section is the conjunction “and” between the two main clauses of CL § 7-203, the “presence on the premises clause” and the “taking and carrying away” clause. Use of the conjunction “and” makes plain that both presence on the premises of another, and taking and carrying away property are required elements of the offense. In that respect, CL § 7-203 departs from its predecessors, Art. 27, § 349 and Art. 27, § 415, in both of which an unauthorized use could be committed by either of the two modalities we have discussed, “either by showing an entry [onto the premises of another without permission] and a taking or by showing a taking of a vehicle [or other designated property] from wherever it may be located.” Thomas v. State, 277 Md. at 269 , 353 A.2d 240 (emphasis added).

The General ⁵⁵⁶ Assembly captured in the new statute the first modality of what formerly was unauthorized use, which required presence on the premises and a taking. But the legislature deleted from CL § 7-203 what formerly was the second modality by which an unauthorized use can be committed, requiring simply a taking from wherever the property might be located. By no reasonable reading of the current statute can it be concluded that the State must prove only an unlawful taking of property from wherever it may be located. Further, because the statute is unambiguous, “there is no reason to consult legislative history as an aid to construing it.” Stanley, 390 Md. at 185 , 887 A.2d 1078 .

Indeed, although the legislative history of CL § 7-203 might shed light on a contrary intent, Stanley teaches that we may not look to that source for evidence that would suggest a meaning not expressed in the language. See id. at 182 , 887 A.2d 1078 . In that regard, we may take no account of the Re-visor’s Note to CL § 7-203, which declares: “This section is new language derived without substantive change from former Art. 27, § 349.” (Emphasis