B. SIFRIT v. State

GREENE, J. A jury in the Circuit Court for Montgomery County, on April 9, 2008, convicted Benjamin Sifrit (“Benjamin”), of three crimes in connection with the death of Martha Crutchley. The crimes are: Count One, murder in the second degree, Count Three, assault in the first degree, and Count Nine, 1 accessory after the fact. 2 Benjamin’s convictions and this appeal arise out of events that occurred over the Memorial Day weekend 2002 in Ocean City, Maryland, resulting in the death of two people, Martha Crutchley and Joshua Ford. 3 ¹²² In a related case, a separate jury in the Circuit Court for Frederick County, on June 10, 2008, convicted Erika Sifrit (“Erika”), Benjamin’s wife, for her complicity in the murders of Ms. Crutchley and Mr. Ford. We granted Erika’s petition for writ of certiorari. Sifrit v. State, 380 Md. 232 , 844 A.2d 428 (2004).

Subsequently, while Benjamin’s appeal was pending in the Court of Special Appeals, we granted his petition for writ of certiorari before consideration of his claims by the intermediate appellate court. Adam, v. State, 381 Md. 324 , 849 A.2d 473 (2004). Even though many of the facts, issues, and legal arguments in these two cases overlap we answer the issues and contentions of the parties in separate opinions of this Court. Benjamin raises the following issues: 1.

Whether the State violated [Benjamin’s] fundamental right to due process by presenting factually inconsistent theories at [Benjamin’s] trial and that of his wife, Erika, .both of whom were charged with committing the same crimes. 2. Whether the trial court [erred] in admitting the testimony of Michael Mclnnis regarding a conversation that [Benjamin] had with Mclnnis three years before the murders as prior bad acts evidence. 3. Whether the trial court erred in refusing to allow the defense to present evidence regarding Erika’s ability to commit the crimes alone. 4. Whether the trial court erred in imposing separate sentences for second degree murder and first degree assault.

We shall affirm Benjamin Sifrit’s convictions. A due process violation does not exist in a situation involving multiple trials based upon a single criminal transaction, unless the prosecution presents inconsistent theories and the inconsistency exists at the core, not the margins, of the State’s case. It is not enough for a due process violation that there are discrepancies because of rational inferences drawn from ambiguous evidence, provided that the multiple theories are ¹²³ supported by consistent underlying facts. In the present case, the State’s theory that Benjamin and Erika committed the criminal offenses together as a team remained consistent throughout both trials.

Any inconsistency in inferences or emphasis placed on particular facts by the State were consistent with the State’s underlying theory of the case and did not violate Benjamin’s right to due process. In addition, we discern no reversible error in the trial court’s rulings with regard to the admissibility of the testimony of Michael Mclnnis and the exclusion of the testimony of Elizabeth Sifrit. Finally, we shall vacate the sentence imposed for Count Three, first degree assault, treating it, for sentencing purposes, as merging with the conviction for second degree murder, Count One. I. On Friday, May 24, 2002, Martha Crutchley and her boyfriend, Joshua Ford, drove from Virginia to Ocean City, Maryland, for the Memorial Day weekend.

Erika and her husband Benjamin were also vacationing in Ocean City over the holiday weekend. On Saturday night, May 25, 2002, the Sifrits met Ms. Crutchley and Mr. Ford on a bus on their way to Seacrets, a popular Ocean City nightclub. The Sifrits did not have the exact change for the fare so Ms. Crutchley and Mr. Ford offered to pay the Sifrits’ fare if they would buy them a drink when they arrived at Seacrets. The foursome and two other people from the bus, friends Anne Carlino and Jeff Hysee, spent the rest of the evening together at Seacrets.

What happened in the early morning hours following the night at Seacrets is unknown. We do know, however, that at 3:00 a.m. on Sunday, May 26, 2002, Erika called 911 claiming that people she did not know were in her condominium unit and she could not find her purse. She was “afraid I’m going to have a robbery here.” The call abruptly ended and no one was dispatched to the condominium. On Tuesday, May 28, 2002, one of Ms. Crutchley’s coworkers notified the Fairfax City police that Martha Crutch ¹²⁴ ley failed to show up at work following the Memorial Day weekend.

Fairfax City police contacted the Ocean City police who found Ms. Crutchley’s car outside the condominium where she and Mr. Ford were staying for the weekend. The police found the couple’s belongings left in their condominium as if they had just stepped out. Concerned about Ms. Crutchley and Mr. Ford, the police began to search actively for them. On May 31, 2002, around midnight, the Ocean City Police Department responded to an alarm call from the closed-for-the-night Hooters Restaurant and Bar merchandise store on 122nd Street in Ocean City.

There they found Erika and Benjamin loading Hooters merchandise into their Jeep Cherokee. The couple were placed in handcuffs. Upon searching the couple, the police found a 9 millimeter handgun and a knife on Benjamin and a fully-loaded .857 magnum revolver tucked into Erika’s blue jeans in the small of her back. Another knife was found on Erika.

Discovered in the Sifrits’ car were a .45 calibre gun, ski masks, flex cuffs, and tape. 4 The two were arrested and charged with burglary. At the scene of the burglary, Erika told the officers that she had anxiety problems and that she needed her Xanax and Paxil from a brown leather pouch in her purse located in the front of the Jeep. One of the police officers, Sgt. Beene, looked in Erika’s purse for the pills.

He found only one type of pill inside the brown leather pouch. Sgt. Beene continued to look for the other type of pill inside a red pouch because he noticed medicine bottles in that pouch. When the officer did not find the second type of pill in the red pouch he looked in a zippered pouch in the back of the purse.

There he discovered four spent .357 magnum shell casings and one live round. The sergeant continued to look for the second type of pill in a gray change purse, also inside Erika’s purse, and found the identification cards of Mr. Ford and Ms. Crutchley. 5 Fearing for the ¹²⁵ safety of Ms. Crutchley and Mr. Ford, the police ordered an immediate search of the Sifrits’ condominium. Upon entering the Sifrits’ condominium, the police observed photographs and two bullets on a glass table. The pictures were of the Sifrits, Ms. Crutchley, and Mr. Ford, taken before the murders.

Both of the bullets on the table had been fired from the .357 magnum recovered from Erika at Hooters, and one of the bullets had Mr. Ford’s blood and tissue on it. Police also found a key to Ms. Crutchley and Mr. Ford’s condominium on another table. Crime scene technicians found bloodstains in the Sifrits’ master bathroom on the top of the counter, the underside of the counter top, the floor, the floor under the vanity, the back side of the bottom drawer of the vanity, under the mirror, under the baseboard, under the hot tub faucet, on the hot tub step, on a sailboat candle holder on the hot tub, on the window, and in the shower. Swabs were taken from these bloodstains, which were all later identified as matching the DNA of either Ms. Crutchley or Mr. Ford.

There was also a hole in the back wall of the bathroom, fresh paint on the wall, and numerous cleaning supplies on the floor next to the bathroom door. The cleaning supplies, it was later discovered, had been purchased on Sunday, May 26, 2002, the day after Martha Crutchley and Joshua Ford were murdered. The police ultimately found the dismembered bodies of Martha Crutchley and Joshua Ford in a Delaware landfill. The only part of Ms. Crutchley that was recovered was her left leg, consequently, her cause of death was never determined.

Police recovered the torso and both arms of Mr. Ford. Two bullets fired from the .357 magnum recovered from Erika at Hooters on the night of the burglary were found in Mr. Ford’s torso. ¹²⁶ The State’s theory in both cases was that after leaving Seacrets that night, the two couples had returned to the Sifrits’ condominium. Once in the condominium, the Sifrits engaged in a “missing purse game” in which they claimed Erika’s, purse was missing. They demanded the other couple find the purse and when it couldn’t be found, somehow got them into the upstairs bathroom where both Sifrits shot Mr. Ford and in some other manner killed Ms. Crutchley.

The team then cut up the victims’ bodies and disposed of them in trash dumpsters. The State’s theory is based, in part, on the testimony of Melissa Seling (“Melissa”) who met the Sifrits the night of May 29 through her friend, Justin Todd Wright (“Todd”). Melissa testified that when she caught up to Todd that night, he and the Sifrits were intoxicated and she was the only one who was sober. Melissa joined the Sifrits and Todd at a couple of bars, but she did not drink.

At the end of the evening, Melissa was worried about Benjamin’s ability to drive so she agreed to follow the Sifrits back to their condominium. When the four of them arrived at the condominium, Melissa, at Benjamin’s urging, helped Erika up to the condominium because she seemed so intoxicated that she might fall over without help. Once at the door, Erika located her keys in her purse and opened the door with no problem. Erika began showing Melissa around the condominium.

Within 5-10 minutes of having the purse at the door, Erika and Benjamin claimed that someone had taken Erika’s purse and that Melissa had'to look for it. At some point during the search for the purse, Benjamin brandished a gun and became more adamant about them finding the purse. Benjamin made a number of statements during the search regarding people who had been there before who had tried to rip them off and that he was “doing the world a justice by ridding the earth of bad people.” Melissa testified that he also told her “if we ripped them off ... he would kill us the same way he killed those other people.” In her statement to police and on re-cross-examination in Benjamin’s ¹²⁷ trial, Melissa acknowledged that she was not clear in her recollection of whether Benjamin had said “just like I killed the other people” or “just like we killed the other people” (emphasis added). Melissa testified that she felt threatened by the gun and asked that it be put away.

During the search, Melissa noticed a bullet hole in the bathroom door, which had been removed from its hinges. Ultimately, Benjamin discovered the purse in a location that had previously been searched. Benjamin also sat down with Melissa to show her his gun and what he called Erika’s gun, the .357 magnum used to kill Joshua Ford. At his trial, Benjamin took the stand in his own defense.

He denied any involvement in the actual killing of the two victims. Benjamin testified that he left Seacrets with his wife, Martha Crutchley, and Joshua Ford and got on a bus. When the bus stopped at the condominium where Ms. Crutchley and Mr. Ford were staying, Erika got off the bus with them while Benjamin returned to their condominium alone. Once there, however, Benjamin realized he did not have a key to the unit, so he went and “passed out” in the couple’s jeep.

At some time later, Benjamin claims his wife woke him up in the car asking “why weren’t you there for me?” The two then returned to the condominium where he found Joshua Ford and Martha Crutchley dead on the bathroom floor. Benjamin admitted that it was his idea to dismember the bodies and that Erika helped him. He testified that he cut off both Ms. Crutchley’s and Mr. Ford’s heads, arms, and legs about an hour after they were killed. He then placed their body parts in trash bags, which Erika purchased for that purpose that morning while Benjamin dismembered the bodies, and then dumped their remains in a dumpster at a Food Lion in Rehoboth, Delaware, at around 8 a.m. or 9 a.m. on Sunday, May 26, 2002.

Benjamin was sentenced to thirty years imprisonment for second degree murder, 25 years to run concurrent for first degree assault, and 5 years to run consecutive for accessory ¹²⁸ after the fact. 6 Additional facts will be provided throughout this opinion as necessary to our analysis.

II

Inconsistent Theories of Prosecution Benjamin presents the same facts and argument as Erika Sifrit with regard to the issue of inconsistent theories of prosecution. For the reasons stated in our opinion filed in the case of Erika Sifrit, we find no merit to Benjamin’s contentions. See Erika Sifrit v. State, 380 Md. 232 , 844 A.2d 428 .

III

Admission/Exclusion of Evidence Benjamin’s second and third assignments of error relate to the admission and exclusion of certain testimony; specifically, the admission of Michael Mclnnis’s testimony regarding the conversation about disposing of a dead body and the exclusion of testimony by Benjamin’s mother that Erika once pulled a gun on her. It is well established in this State that the admission of evidence is committed to the considerable discretion of the trial court. Merzbacher v. State, 346 Md. 391, 404 , 697 A.2d 432, 439 (1997) (internal citations omitted). Relevant testimony is generally admissible and irrelevant testimony is not admissible.

Id. (citing Md. Rule 5-402). Evidence is relevant if it has a tendency to establish or refute a fact that is at issue in the case. Merzbacher, 346 Md. at 404 , 697 A.2d 432 (citing Md. Rule 5-401). “We are generally loath to reverse a trial court unless the evidence is plainly inadmissible under a ¹²⁹ specific rule or principle of law or there is a clear showing of an abuse of discretion.” Merzbacher, 346 Md. at 404-405 , 697 A.2d at 439 (citing White v. State, 324 Md. 626, 637 , 598 A.2d 187, 192 (1991)).

In Dorsey v. State, 276 Md. 638, 643 , 350 A.2d 665, 668-669 (1976), we discussed the test for admissibility of evidence in a criminal trial. We said: The real test of admissibility of evidence in a criminal case is the connection of the fact proved with the offense charged, as evidence which has a natural tendency to establish the fact at issue.... [Ejvidence, to be admissible, must be relevant to the issues and must tend either to establish or disprove them. Evidence which is thus not probative of the proposition at which it is directed is deemed irrelevant. (Internal quotations and citations omitted.) Admission of Michael Mclnnis’s Testimony The trial court admitted the testimony of Michael Mclnnis (“Mclnnis”) regarding a conversation he had with Benjamin in 1999.

The Court admitted the testimony pursuant to Md. Rule 5-404(b), governing the admission of evidence related to other crimes, wrongs, or acts. Benjamin challenges the admission of this testimony. We affirm the trial judge’s decision to admit the evidence pertaining to Benjamin’s statement, but for different reasons. Mclnnis is a former Navy SEAL and friend of Benjamin.

He was called by the State at Benjamin’s trial to recount a conversation that he had with Benjamin. Mclnnis testified that in 1999 the two men were at a strip club having drinks when the discussion turned to how Benjamin would dispose of a body if he ever killed someone. According to Mclnnis, Benjamin stated that he would do it by laying down plastic in a living room or an open space and then remove the arms, legs and head with a knife. Then he would remove the body in separate bags and dispose of the body in either the same dumpster over the course of a month or in different dumpsters throughout the city in a single trip.

On cross-examination, Mclnnis stated that the conversation was a typical conversation between SEALs, that they were “simply talking trash ¹³⁰ with guys over a few beers” and that the conversation was not to be taken seriously. Outside the presence of the jury, Mclnnis testified that the conversation had, in fact, arisen when Mclnnis stated to Benjamin, “I should send you to go whack my wife.” To which, Benjamin responded, “[y]eah sure.” The conversation then turned to the discussion of how it could be done without getting caught. That is when the discussion about quartering and disposing of the bodies arose. Later, Mclnnis asked what the going rate was, and Benjamin responded “$20,000 to $40,000, $30,000.” On April 1, 2003, counsel for Benjamin made an oral motion to exclude the testimony of Mclnnis.

The defense argued that the conversation did not amount to another crime, wrong, or act. The conversation was just “a drunken discussion three years ago.” The State countered that the act of offering to kill someone’s wife for money constitutes solicitation to commit murder, which is a crime. The Court took a brief recess and then made an initial ruling that the testimony qualified under Md. Rule 5-404(b); however, before a final determination could be made on whether to admit the testimony, a hearing was necessary outside the presence of the jury. Following the hearing, the trial court held that the testimony was admissible pursuant to Rule 5 — 404(b), based on its interpretation that the conversation amounted to an offer or solicitation to commit murder.

The trial court, relying on the case of Ridgeway v. State, 140 Md.App. 49, 67 , 779 A.2d 1031, 1041 (2001), aff'd, 369 Md. 165 , 797 A.2d 1287 (2002), conducted the required three-part analysis regarding the admissibility of “other crimes” testimony and concluded that it was admissible. The testimony was admitted, without any reference to the statement about “whacking” Mclnnis’s wife. Additionally, the court gave a cautionary instruction to the jury regarding the proper use of the testimony. 7 ¹³¹ Benjamin contends that the trial court erred in admitting this testimony because it “simply did not qualify as relevant evidence, as it neither ‘tended to make the proposition asserted more or less probable,’ nor was [it] ‘related logically to the matter in issue in the case.’ ” He further argues that the testimony does not fall within any of the stated exceptions embodied in Rule 5-404(b) and relied upon by the trial court. On appeal, the State contends that the conversation did not amount to “prior bad acts” evidence because the version actually admitted at trial, the version without reference to “whacking” Mclnnis’s wife, did not fall within the exceptions for the admission of