Bacon v. State

GARRITY, Judge. This appeal arises from the appellant’s conviction by jury trial in the Circuit Court for Prince George’s County (Rea, J.) on the charge of carrying a weapon openly with the intent to injure. Two issues are presented for our review: 1) Whether the lower court erred in finding the appellant’s weapon to be a dangerous and deadly weapon as defined in Article 27, § 36(a), thus supporting his conviction for carrying a weapon openly with intent to injure; and 2) Whether the evidence was sufficient to justify the appellant’s conviction for carrying a dangerous weapon openly. FACTS On December 21, 1988, at about 9:15 p.m., Diwann Tyer and Janine Gardner were standing at the window of a Texaco station near Ms. Tyer’s apartment complex.

Ms. Tyer was in the process of purchasing cigarettes. Ms. Tyer testified that the appellant was standing to her left and ⁷³⁹ appeared to be looking at her wallet as she prepared to pay for the cigarettes. 1 She demanded to know why he was looking in her wallet, at which point the appellant directed a stream of profanity at her, and an argument ensued. Ms. Tyer testified that during the argument, the appellant pulled a pocketknife from his pocket and waved it in her face, threatening to cut her if she did not go home. Ms. Tyer did not recall seeing the appellant open the knife.

She testified that Ms. Gardner, who was standing behind Ms. Tyer, put her arm around Ms. Tyer’s waist and pulled her away from the scene. Ms. Gardner corroborated Ms. Tyer’s testimony. 2 The women left and met with Ms. Gardner’s brother. Ms. Gardner relayed to him what had happened, and her brother then confronted the appellant. Ms. Gardner testified that upon confrontation the appellant pulled out the pocketknife, at which point her brother went to his car and retrieved a tire iron.

Ms. Gardner’s brother, Tyrone Gardner, testified that his friends joined him, someone hit the appellant, and they chased after him as he ran toward a Roy Rogers where police officers were located in the parking lot. Corporal Timothy Long of the Prince George’s County Police Department testified that he told the appellant to drop the knife, which he characterized as a “buck knife.” Corporal Long had to repeat the request twice before the appellant complied. The appellant was arrested at that point. ⁷⁴⁰ The knife was estimated to have a five-inch blade. Corporal Long described it as a buck knife, which is a folding knife with a locking blade.

A photograph of the knife was admitted into evidence. I. The appellant contends that the trial court erred in denying his motion for acquittal on the basis that the weapon in his possession was a penknife within the exception enunciated in Article 27, § 36(a). Before we address the merits of this argument, however, we are compelled to respond to the State’s contention that this argument was not preserved below. Pursuant to Maryland Rule 8-131(a), this court generally reviews only those issues which have been raised or decided in the trial court.

Further, when a defendant moves for a judgment of acquittal, he is required to state with particularity all reasons why the motion should be granted. See Md.Rule 4-324(a); State v. Lyles, 308 Md. 129, 135 , 517 A.2d 761 (1986). The State contends that, in his motion for acquittal, the appellant only addressed the applicability of Article 27, § 36(a) in the context of the nolle prossed charge of carrying a concealed weapon. The State maintains that the argument on the motion for acquittal focused on insufficiency of the evidence, and, accordingly, the issue of whether the weapon falls within the penknife exception was neither raised nor decided below.

We disagree. In denying the appellant’s motion for judgment of acquittal, the court stated: There is testimony, along with what Mr. Creech said, and I have to agree with Mr. Creech that what would be a perfectly legal knife, folded up knife in the pocket, can become a weapon carried openly with intent to harm, and that’s about the circumstances, and it has to come about what the jury understands the circumstances to be, and I will deny the motion. ⁷⁴¹ Clearly, the trial court contemplated the character of the weapon at issue in its determination to deny the appellant’s motion. Although the court did not specifically state that it found the -weapon not to fall within the statutory exception, one can reasonably infer from the court’s statement that under certain circumstances, the weapon would be a “perfectly legal knife” and thus, fall within the exception. Accordingly, we hold that the issue was raised and decided below.

As to the merits of this issue, Article 27, § 36(a) states, in part: Every person who shall wear or carry any dirk knife, bowie knife, switchblade knife, star knife, sandclub, metal knuckles, razor, nunchaku, or whatsoever (penknives without switchblades and handguns, excepted) concealed upon or about his person, and every person who shall wear or carry any such weapon ... openly with the intent or purpose of injuring any person in any unlawful manner, shall be fined not more than $1,000 or be imprisoned in jail,.... The appellant maintains that because his pocketknife had a fold-out blade that had to be locked manually into place, it must be characterized as a penknife without switchblade, and thus, fall within the statutory exception. We disagree. The appellant relies on the case of In re Daryl L., 68