Allen v. State

⁶² HARRELL, J. This case reaches the Court through our grant of a Petition for Writ of Certiorari filed by Ronald Robert Allen (Petitioner) seeking review of a judgment of the Court of Special Appeals finding no error with the evidentiary sufficiency of his conviction of unauthorized use of a motor vehicle under Maryland Code, Criminal Law Article § 7-203 (2002). We also granted the State’s Cross-Petition to consider whether the Maryland Legislature, in the course of its 2002 recodification of the substantive statutory criminal law, focusing particularly on Criminal Law Article (“CL”) § 7-203, added an element to the crime of unauthorized use of a vehicle beyond that previously required under the predecessor statute. 1 We shall hold ⁶³ that the Legislature in its 2002 recodification did not add a new requirement such that a defendant must be shown to have been on the real property from where a vehicle is taken and to have participated in the taking of the vehicle in order to be convicted of unauthorized use under CL § 7-203. We further shall hold that the record evidence, and reasonable inferences drawable therefrom, were legally sufficient to convict Petitioner of unauthorized use. As a result, we shall affirm the judgment of the Court of Special Appeals.

I. Ronald Robert Allen was tried in the Circuit Court for Prince George’s County on three counts of theft and one count of unauthorized use of a motor vehicle. After a two-day trial, a jury convicted Allen under Maryland Code, Criminal Law Article § 7-203 (2002), of the crime formally entitled “unauthorized removal of property,” but more commonly referred to as “unauthorized use” of an automobile. The parties do not dispute the direct facts. Early on 28 October 2003, General Motors delivered several new Hummer motor vehicles to Moore Cadillac’s Virginia dealership.

While normally the delivery driver dropped the ⁶⁴ associated paperwork and two sets of keys for each Hummer into a night drop slot at the dealership, on this occasion he noticed that one of the Hummers, a gray-colored one, had only one set of keys. On 5 November 2003, when a prospective purchaser inquired about that Hummer, employees of the dealership could not locate it and reported it stolen. The vehicle was located when Officer Gerald Caver of the Prince George’s County Police Department noticed a gray Hummer, driven by Petitioner, during his patrol in the County on 5 December 2003. While checking on his in-board computer vehicle tag numbers in search of stolen tags, a “hit” came back for the Hummer, leading him to stop the vehicle.

Officer Caver checked the vehicle identification number with the dispatcher and confirmed the vehicle was the one reported stolen fi-om Moore Cadillac’s Virginia dealership. A single set of manufacturer’s original keys were in the vehicle. The grand jury charged Petitioner with felony theft, motor vehicle theft, unauthorized use of a motor vehicle, 2 and misdemeanor theft of the license tags. The State nol prossed the misdemeanor theft count at the close of its case-in-chief at trial.

Allen moved for a judgment of acquittal on the other three charges. With regard to the count of unauthorized use, he argued that the State failed to establish the required elements, and specifically that the State did not offer any evidence that he entered on the property of the Virginia dealership and took the Hummer off its lot. His motion for acquittal was denied. In his defense, Allen and his mother testified.

His mother testified that Allen was in Florida when the Hummer disappeared from Moore Cadillac. Petitioner testified that he did not take the Hummer from the dealership and did not know that the Hummer was stolen. He claimed that the Hummer belonged to an acquaintance, Marcus Robinson, from whom he ⁶⁵ borrowed the vehicle on 5 December 2003 to go to breakfast. Marcus Robinson did not testify.

At the close of all the evidence, Allen renewed his motion for judgment of acquittal. The court denied the motion and the case was sent to the jury. The judge’s instructions to the jury included ones consistent with the Maryland Pattern Instructions on the presumption of innocence, reasonable doubt, and the requirement of impartiality. The judge also instructed the jury that it [i]s your duty to decide the facts and apply the law to those facts.

In evaluating the evidence, you should consider it in the light of your own experiences. You may draw any reasonable inferences or conclusions from the evidence that you believe to be justified by common sense and your own experiences. There are two types of evidence, direct and circumstantial. The law makes no distinction between the weight to be given to either direct or circumstantial evidence.

No greater degree of certainty is required of circumstantial than of direct evidence. In reaching a verdict, you should weigh all of the evidence presented whether direct or circumstantial. You may not convict the defendant unless you find that the evidence when considered as a whole establishes guilt beyond a reasonable doubt. You are the sole judges of whether the witness should be believed.

In making this decision, you may apply your own common sense and every day experiences. You have heard testimony about Marcus Robinson who was not called as a witness in this case. If a witness could have given important testimony on an issue in this case and if the witness was peculiarly within the power of the defendant to produce but was not called as a witness by the defendant and the absence of that witness was not sufficiently accounted for or explained, then you may decide that ⁶⁶ the testimony of that witness would have been unfavorable to the defendant. After explaining “intent” to the jury, the judge identified the elements needing to be proven in order to convict as to each of the three charges.

With regard to the charge of “unauthorized removal of property” (unauthorized use), the judge stated: Unauthorized removal of property. Without the permission of the owner, a person may not enter or be upon 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 government unit any property including a motor vehicle. No exceptions were taken to this instruction. The jury found Allen guilty of one count of unauthorized use.

He was sentenced to four years’ imprisonment, all but 90 days suspended, with three years’ probation upon release from incarceration. On appeal to the Court of Special Appeals, Allen argued that the evidence presented at trial was not sufficient to support a conviction of unauthorized use under CL § 7-203. Allen v. State, 171 Md.App. 544, 551 , 911 A.2d 453, 457 (2006). Specifically, he pointed to the language of the statute, last revised in 2002, asserting that the plain language requires proof both that a person, sans permission, entered or was present on the real property where the motor vehicle was taken and participated in the taking of such property from the premises or out of the custody or use of the owner.

Id. In this case, the evidence did not establish sufficiently either that he was present at the Virginia dealership and removed the Hummer or, when discovered behind the wheel, that he knew that the Hummer was stolen. Id. In reply, the State argued that the 2002 revision of CL § 7-203 did not work a substantive change in the elements of the offense from the predecessor statute and case law interpreting it and that it only was necessary to prove that Allen participated in the continued use of the Hummer under circumstances manifesting an intent to deprive the true owner of possession.

Id. ⁶⁷ In its reported opinion, the intermediate appellate court traced the history of the unauthorized use statute. Id. at 551-54, 911 A.2d at 457-59 . The court detailed the statute’s several revisions and the case law interpreting the iterations. Id.

According to the court, the case law decided prior to the 2002 revision supported the State’s arguments. Id. at 554 , 911 A.2d at 459 . The court noted, however, that no on-point cases had been decided since the 2002 revision and that the revision worked a substantive change in the statute’s meaning from that version existing before 2002. Id.

Specifically, the court held that, under a plain meaning reading, the statute now requires proof both of entry upon the premises of another by a defendant and the unlawful taking and carrying away of property. Id. at 557 , 911 A.2d at 460 . Based on its view of the current statute, the court next considered the sufficiency of the evidence supporting Allen’s conviction. Id. at 561 , 911 A.2d at 463 .

The court noted Maryland’s recognition that “a jury may infer, from the unexplained possession of recently stolen goods, that the possessor is the thief.” Id. at 562 , 911 A.2d at 463 (citing Painter v. State, 157 Md.App. 1, 12 , 848 A.2d 692, 698-99 (2004)). Our appellate brethren concluded that the passage of one month between the discovery that the Hummer was missing from the Virginia dealership and the arrest of Allen behind the wheel of the vehicle in Prince George’s County did not destroy the probative effect of that permissible inference. Id. at 562, 911 A.2d at 463-64 . The court noted that the jury was free not to credit Allen’s testimony and alibi evidence and also to consider that he did not call Robinson to testify in corroboration of his tendered defense.

Id. at 562-63 , 911 A.2d at 463-64 . The intermediate appellate court had “no difficulty concluding that the State presented evidence from which a jury rationally could find that Appellant violated CL § 7-203.” 3 Id. at 561, 911 A.2d at 463 . ⁶⁸ Before us, as before the intermediate appellate court, Allen asserts that the State failed to produce sufficient evidence to support his conviction of “unauthorized use” of a motor vehicle. Agreeing with the intermediate appellate court’s interpretation of CL § 7-203, Petitioner claims that the evidence presented at trial by the State failed to place him on the car dealership’s property in Virginia or to show that, when found operating it, he knew that the Hummer was stolen. The State, in its cross-petition, asks that we consider whether the 2002 revision to CL § 7-203 affected a substantive change by adding a new element or elements to the offense of unauthorized use.

Even were we to conclude that such a substantive change occurred, the State urges that the evidence was sufficient as a matter of law to support the jury’s verdict.

II

The history and interpretation of the “unauthorized use” statute is of apical importance to proper analysis of this case. In 1880, the Legislature created the progenitor of this crime when it enacted a statute establishing the misdemeanor crime of larceny of the use of any horse or other animal or any carriage or other vehicle. Wright v. Sas, 187 Md. 507, 511 , 50 A.2d 809, 810 (1947). Over time, changes were made to the statute, through recodifications and targeted revisions.

Id. at 511 , 50 A.2d at 810 . The controlling text of the statute, however, was changed very little. Id. The penultimate relevant version, prior to the changes made in the 2002 recodification, was Maryland Code Art. 27, § 349, entitled “unauthorized use of livestock, boat, or vehicle.” It read in pertinent part: Any person or persons, his or their aiders or abettors who shall enter, or being upon the premises of any other person, body corporate or politic in the State, shall, against the will ⁶⁹ and consent of said person or persons, body corporate or politic or their agents, wilfully take and carry away any ... motor vehicle ..., or take and carry away out of the custody or use of any person or persons, body corporate or politic, or his or their agents, any of the above enumerated property at whatsoever place the same may be found, shall upon conviction thereof ... be adjudged guilty of a misdemeanor.

As noted by the Court of Special Appeals, this iteration of the crime of unauthorized use had four elements, “(1) an unlawful taking; (2) an unlawful carrying away; (3) of certain designated personal property; (4) of another.” Allen v. State, 171 Md.App. 544, 552 , 911 A.2d 453, 458 (2006) (citing In re Lakeysha P., 106 Md.App. 401, 411 , 665 A.2d 264, 269 (1995)). This Court’s jurisprudence interpreted the unauthorized use statute in the disjunctive, holding that it contemplated two ways of satisfying these elements. Thomas v. State, 277 Md. 257, 269 , 353 A.2d 240, 247-48 (1976). First, one may enter the premises of another and take property away.

Id., 277 Md. at 269 , 353 A.2d at 248 . Second, one may take property from wherever it is located. Id. As to this second means of committing the unauthorized use offense, this Court and the Court of Special Appeals have affirmed many convictions, notwithstanding the absence in those records of evidence linking the defendant with the original taking of the property, because admitted evidence supported a finding that a defendant had the intent to deprive the owner of possession.

See Lee v. State, 240 Md. 160 , 213 A.2d 503 (1965); Spence v. State, 224 Md. 17 , 165 A.2d 917 (1960); Anello v. State, 201 Md. 164 , 93 A.2d 71 (1952); Banks v. State, 2 Md.App. 373 , 234 A.2d 798 (1967); Johnson v. State, 2 Md.App. 486, 236 A.2d 41 (1967). The 2002 (and current) version of the unauthorized use statute, entitled “unauthorized removal of property,” is codified at Criminal Law Article § 7-203 of the Maryland Code. The recodification of the substantive criminal laws, of which § 7-203 was apart, came about as the result of a four year effort to reorganize and simplify the criminal code, consummated by the adoption of Chapter 26 of the Acts of 2002. ⁷⁰ Allen v. State, 171 Md.App. 544, 551-52 , 911 A.2d 453, 457 (2006); General Revisor’s Note To Article, Md.Code Crim. Law Art. (2002).

As the general revisor’s note recognizes: [T]he principle function of a Code is to reorganize the statutes and state them in simpler form. Consequently any changes made in them by a Code are presumed to be for the purpose of clarity rather than change of meaning. Therefore, even a change in the phraseology of a statute by a codification thereof will not ordinarily modify the law, unless the change is so radical and material that the intention of the Legislature to modify the law appears unmistakably from the language of the Code. General Revisor’s Note to Article, Md.Code Crim.

Law Art. (2002) (quoting Welch v. Humphrey, 200 Md. 410, 417 , 90 A.2d 686, 689 (1952)). The revised Criminal Law Article is organized by Title, setting out various crimes, including “Title 7. Theft and Related Crimes.” Title 7 is further broken into Subtitles and Parts. Notably, “unauthorized use of property,” or § 7-203 “unauthorized removal of property” as it is called formally, falls within Part II, “Unlawful Use of Goods.” It reads in pertinent part: (a) Prohibited.—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 ... a motor vehicle....

The annotation to this section in the bound volume of the Code also includes a Revisor’s note stating that “[t]his section is new language derived without substantive change from former Art. 27, § 349.” When the Legislature enacted this and the other sections of Chapter 26 of the Acts of 2002, all of the above language, including the Revisor’s notes appeared in the legislation. In addition and of more meaningful import, the session law included Section 13, which read, “AND BE IT FURTHER ENACTED, That it is the intention of the General Assembly that, except as expressly provided in this Act, this Act shall be construed as a nonsubstantive revision, and may ⁷¹ not otherwise be construed to render any substantive change in the criminal law of the State.” III. On the issue of the meaning of CL § 7-203, the Court of Special Appeals’s interpretation of the statute “enjoys no deferential appellate review.” Helinski v. Harford Memorial Hospital, Inc., 376 Md. 606, 614 , 831 A.2d 40, 45 (2003). We review the issue de novo.

A review of the question regarding the sufficiency of the evidence in a jury trial requires us to ask whether, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Rivers v. State, 393 Md. 569, 580 , 903 A.2d 908, 915 (2006).

IV

A. The first issue we encounter is whether, when the Legislature enacted Chapter 26 of the Acts of 2002, it intended to work a substantive change in the elements of the crime of unauthorized use. This Court often has had occasion to consider the impact of recodifications on the meaning of included statutory provisions vis a vis prior iterations of the relevant statutes. “When a substantial part of an Article is revised, ‘a change in the phraseology of a statute as part of a recodification will ordinarily not be deemed to modify the law unless the change is such that the intention of the Legislature to modify the law is unmistakable.’ ” Comptroller of the Treasury v. Blanton, 390 Md. 528, 538 , 890 A.2d 279, 285 (2006) (quoting Rettig v. State, 334 Md. 419, 427 , 639 A.2d 670, 674 (1994)); see also Pye v. State, 397 Md. 626, 634 , 919 A.2d 632, 637 (2007). Furthermore, “[r]ecodification of statutes is presumed to be for the purpose of clarity rather than change of meaning and, thus, even a change in the phraseology of a statute by a codification will not ordinarily modify the law unless the change is so radical and material that the intention ⁷² of the Legislature to modify the law appears unmistakably from the language of the Code.” Blanton, 390 Md. at 538 , 890 A.2d at 285 (quoting Md. Div. of Labor and Indus. v. Triangle Gen. Contractors, Inc., 366 Md. 407, 422 , 784 A.2d 534, 543 (2001)); see also Tipton v. Partner’s Mgmt.

Co., 364 Md. 419 , 773 A.2d 488 (2001); Riemer v. Columbia Med. Plan., Inc.,