Baires v. State

Fernando Baires v. State of Maryland, No. 955, September Term 2019. Opinion by Wells, J. CRIMINAL LAW – RELEVANCY – STANDARD OF REVIEW Trial courts are afforded wide discretion to weigh relevant evidence. Such determinations by the trial court will be upheld absent plain inadmissibility under a specific rule or principle of law or absent a clear abuse of discretion. CRIMINAL LAW – RELEVANCY – STANDARD OF REVIEW Appellate courts apply a de novo standard of review to determine whether evidence admitted by the trial court is relevant.

CRIMINAL LAW – APPEALABILITY – TIMINING OF OBJECTIONS Non-immediate objection to the admission of testimony and accompanying exhibits does not preclude appealability of admission of the testimony and exhibits so long as an objection was made as soon as the grounds for objection became apparent according to Maryland Rule 4-323. CRIMINAL LAW – PARTICIPATION IN A CRIMINAL ORGANIZATION – PATTERN REQUIREMENT Conviction under Maryland CR § 9-804 does not require proof that the individual defendant had engaged in a pattern of criminal gang activity. Conviction only requires that the defendant have knowledge that members of the organization, which may or may not comprise of the individual defendant, had engaged in a pattern of such activity. CRIMINAL LAW – APPEALABILITY – DEPTH OF ARGUMENT Arguments from a party’s brief that are scant or even implicit are properly preserved for appeal.

However, arguments that are not presented whatsoever or not presented with particularity will not be considered on appeal. CRIMINAL LAW – PARTICIPATION IN A CRIMINAL ORGANIZATION – KNOWLEDGE REQUIREMENT In addition to proving the existence of a pattern of criminal gang activity, Maryland CR § 9-804 also requires proof that the criminal defendant possessed knowledge of that pattern. In the absence of evidence of a criminal defendant’s knowledge of a pattern of gang activity, the defendant cannot be convicted under Maryland CR § 9-804. CRIMINAL LAW – HARMLESS ERROR DOCTRINE – STANDARD OF REVIEW Errors of the trial court will be disregarded so long as those errors do not affect the essential fairness of the trial.

In criminal appeals, we apply a “beyond a reasonable doubt” standard when determining whether an error of admission or exclusion of evidence is harmless. CRIMINAL LAW – HARMLESS ERROR DOCTRINE – EVIDENCE Evidence introduced solely for the purpose of proving the existence of a pattern of criminal gang activity—when admitted by the trial court in error due to the lack of evidence pertaining to the participation in a criminal gang statute’s knowledge requirement—is not a harmless error with respect to conviction under the participation in a criminal gang statute. CRIMINAL LAW – HARMLESS ERROR DOCTRINE – EVIDENCE Evidence introduced solely for the purpose of proving the existence of a pattern of criminal gang activity—when admitted by the trial court in error due to the lack of evidence pertaining to the participation in a criminal gang statute’s knowledge requirement—may be a harmless error with respect to convictions apart from participation in a criminal gang so long as the standard harmless error requirements are met. CRIMINAL LAW – CONFRONTATION OF WITNESSES – STANDARD OF REVIEW Criminal defendants are afforded the right to confront witnesses against them, but the right to cross-examine witnesses is not without limit as trial judges have the authority and sound discretion to limit the scope of cross-examination.

Judges have wide latitude to establish reasonable limits on cross-examination based on concerns about, among other factors, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant. Trial judges should balance a question’s probative value against the danger of unfair prejudice. CRIMINAL LAW – CONFRONTATION OF WITNESSES – STANDARD OF REVIEW Appellate courts review the cross-examination limitations imposed by trial judges on an abuse of discretion standard. CRIMINAL LAW – APPEALABILITY – SCOPE OF ARGUMENT Counsel requesting to the trial judge to be permitted to question a witness as to whether the defendant made a statement sufficiently makes apparent what counsel is trying to elicit and does not result in waiver of appeal.

CRIMINAL LAW – CROSS-EXAMINATION – ABUSE OF DISCRETION A trial judge’s limitation of cross-examination due to her reasonable determination that the question was asked with the purpose of eliciting inadmissible testimony is not an abuse of discretion so long as the limitation complies with Maryland Rule 5-611(b). CRIMINAL LAW – ADMISSABILITY OF EVIDENCE – CONFUSION OF THE ISSUES Excluded testimony that would have likely been relevant may nonetheless be excluded when the testimony would lead to a confusion of the issues. CRIMINAL LAW – APPEALABILITY – LIMITATION ON CROSS- EXAMINATION Voluntary abandonment of a line of questioning upon receiving advice from the trial judge on how to proceed with questioning waives the right to appeal. CRIMINAL LAW – ADMISSABILITY OF EVIDENCE – CUMULATIVENESS AND WASTE OF TIME Excluded testimony that would have likely been relevant may nonetheless be excluded when the testimony would be cumulative or a waste of time.

Circuit Court for Prince George’s County Case No. CT160618C REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 955 September Term, 2019 ______________________________________ FERNANDO BAIRES v. STATE OF MARYLAND ______________________________________ Graeff, Beachley, Wells, JJ. ______________________________________ Opinion by Wells, J. ______________________________________ Filed: January 28, 2021 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. Suzanne Johnson 2021-01-28 13:19-05:00 Suzanne C. Johnson, Clerk The State alleged that appellant, Fernando Baires, shot two men on the parking lot of an apartment complex. One man died. As a result, the State charged Baires with first- degree murder, attempted first-degree murder, conspiracy to commit first-degree murder, use of a handgun in a crime of violence, and participation in a criminal gang.

After a four- day trial, a jury sitting in the Circuit Court for Prince George’s County convicted Baires of all counts. The court sentenced him to a combined term of life imprisonment plus 20 years. Baires filed a timely appeal and poses two questions, which we reproduce verbatim: 1. Did the trial court err by admitting the evidence of unrelated gang convictions? 2.

Did the trial court err by limiting the cross-examination of State witnesses? For the reasons that follow, we hold that the circuit court improperly admitted evidence of two murders committed by members of the criminal organization known as MS-13. While those convictions might have established a pattern of gang activity, they did not establish Baires’ knowledge that he was participating with others in a criminal gang. We conclude that the impact of those convictions, however, was limited solely to Baires’ participation in a criminal gang, and we therefore reverse only that conviction.

Additionally, we perceive no error in the court’s limitation on the cross-examination of the State’s witnesses. Consequently, the remaining convictions are affirmed. FACTUAL BACKGROUND A. Events Surrounding the Shooting On April 17, 2016, Gamaliel Nerio-Rico and Carlos Aguirre Tenorio were shot outside the Newbury Square Apartments on Riggs Road in Hyattsville. Gamaliel Nerio- Rico died of his wounds; Aguirre Tenorio survived.

After an investigation, the police charged appellant Fernando Baires, Manuel Alexander Beltran-Cazun, and Darwin Monroy-Madrid with a variety of crimes including first-degree murder. Baires was tried separately from his codefendants. The Circuit Court for Prince George’s County conducted a jury trial over four days: February 11-14, 2019. Among the eighteen witnesses who testified in the State’s case-in- chief was Juan Alejandro Cedron who was the manager of the Newbury Square Apartments.

He identified the location of the shooting as well as surveillance video that was taken of the scene at the time of the shooting. Lea Flores lived with victim Aguirre Tenorio in an apartment at Newbury Square. She testified that she knew codefendants Beltran-Cazun and Monroy-Madrid and had seen them at the Newbury Square Apartments. On the night of the shooting, Flores was at the Galaxy Nightclub, just off Riggs Road in Hyattsville, with victims Aguirre Tenorio and Gamaliel Nerio-Rico.

She testified that codefendants Beltran-Cazun and Monroy-Madrid were also at the club that night. However, Baires, who later testified, claimed he had never been to the Galaxy Nightclub. Walter Cedillos Pineda was at the Galaxy Nightclub on the night of the shooting. He was with both victims at the time of the shooting.

He could not identify Baires as one of the assailants, however. At the nightclub that night was Gamaliel Nerio-Rico’s brother, Carlos Nerio-Rico. He testified that he did not see Baires there. At the time of the shooting, Tyler Lemus, a resident of Newbury Square Apartments, was at home and heard shots just before 3:00 a.m.

Lemus looked out of his window and saw a man lying in the street. Two other people were running and shooting. Lemus could 2 not identify Baires as one of the shooters. After the shooting, the victims were taken to Prince George’s County Hospital’s emergency room.

Dr. Anthony Shiflett, an emergency room physician who treated Aguirre Tenorio, testified that had he not provided treatment, Aguirre Tenorio would have died from the injuries he sustained during the shooting. Additionally, Dr. Sasha Breland of the Office of the Chief Medical Examiner, testified as an expert in the field of pathology. After reviewing and identifying Gamaliel Nerio-Rico’s autopsy report, Dr. Breland opined that Nerio-Rico died as a result of gunshot wounds. While the surviving victim, Aguirre Tenorio, was in the hospital, Detective Ruben Paz conducted a blind photographic array two days after the shooting with Aguirre Tenorio.

In the course of viewing Paz’s array, Aguirre Tenorio identified Baires as one of the shooters. Later at trial, Aguirre Tenorio, testified that Baires was one of the shooters. B. Baires’ Interview with Detective Luis Cruz The State called Detective Luis Cruz as a witness. Cruz testified that he conducted witness interviews regarding the shooting.

Based on the interviews conducted, according to Cruz, the detectives developed several suspects, initially identifying codefendants Beltran-Cazun and Monroy-Madrid as two suspects. As part of the witness interviews, Cruz interviewed Baires. On cross-examination of Cruz, the trial judge did not allow Baires’ counsel to question how the detectives developed the suspects and whether Baires made statements to Cruz in the interview. The trial judge found that such an attempt involved questioning that was beyond the scope of what the State questioned Cruz about, ruling that counsel for Baires “can only cross[-examine] on what door is opened” by the 3 State on direct examination and that the State “didn’t open that door.” C. Testimony of Beltran-Cazun The State also called codefendant Beltran-Cazun to testify.

Beltran-Cazun testified to his familiarity of Monroy-Madrid and Aguirre Tenorio, the orders he received from another MS-13 gang member to kill Aguirre Tenorio that night, and his presence at the Galaxy Nightclub prior to the shooting. Beltran-Cazun further testified that after leaving the nightclub, he and another MS-13 member went to Newbury Square apartments and met with Monroy-Madrid and an individual whom he knew as “Stuart” (who Beltran-Cazun later testified that he believed to be Baires but “wasn’t quite sure”) to carry out MS-13 gang orders to kill a member of a rival criminal organization known as “the 18th Street gang.” The trial judge limited the cross-examination of Baires’ counsel by not allowing questions regarding the length of time that Beltran-Cazun was in the interview room with the police as well as potential punishments for MS-13 members. Baires’ mother, Marybell Baires, later testified that to her knowledge Baires had never been referred to as “Stuart.” The prosecutor asked Beltran-Cazun to relate what he believed was his plea agreement with the State. The written plea agreement was admitted into evidence as State’s Exhibit 36.

On cross-examination, the trial judge did not allow counsel for Baires to ask whether “the State will only ask for 35 years total[,]” whether “the State will cap the request for sentence at 35 years,” and whether his imprisonment would be “no more than 35” years. D. Retired Sergeant George Norris’ Testimony The State called former Prince George’s County Police Sergeant George Norris to testify as an expert witness regarding MS-13. Norris helped implement Prince George’s 4 County’s gang unit in 2002 and worked as a sergeant in that unit until he retired in 2017. He traveled to El Salvador, where MS-13 has an especially large presence, as well as to other Latin American countries, to learn about gangs and has testified as an expert witness in more than 25 cases regarding MS-13.

In this case, Norris testified as to the background, identifiers, and structure of MS-13 generally as well as its presence at the Galaxy Nightclub and in Prince George’s County. Finally, Norris opined that the shootings at issue here occurred for the benefit of MS-13. On cross-examination, counsel for Baires was permitted to ask Norris about his lack of familiarity with the shooting in this case. Baires’ counsel also questioned Norris about whether he had ever met with Baires or with a member of Baires’ family.

Norris said that he did not know Baires or his family. The trial judge sustained State objections to Baires’ counsel asking Norris if he knew anything about Baires’ past or whether he knew if Baires had tattoos. Baires’ mother, Marybell, and Baires himself later testified that he does not have tattoos. E. Gang Evidence The State also called Prince George’s County Detectives Michael Genung and Denise Shapiro to testify.

Their comparatively brief testimonies consisted of describing homicides committed by MS-13 members against 18th Street gang members in Prince George’s County. Genung testified about a homicide that occurred on June 10, 2016. This homicide, like the homicide that Baires was charged with committing in April 2016, occurred in Hyattsville, Prince George’s County, Maryland. The State questioned Genung regarding 5 MS-13 gang member Christian Alvares Beltran, who was convicted of the June 10, 2016 murder.

Counsel for Baires made no objections to the testimony. However, after cross- examination, when the State moved to enter a copy of the certified conviction of Alvares Beltran, Baires’ counsel objected based on relevancy. The trial judge allowed the evidence to be admitted. Similarly, Shapiro testified about a homicide that occurred in Adelphi, Maryland in September 2016.

Adelphi is near Hyattsville where the shooting took place, and both municipalities are in Prince George’s County. The shooting that Shapiro testified to in Adelphi occurred on Riggs Road, the same road as the shooting at issue in this case. Shapiro testified that MS-13 gang member Hernan Sanchez Vasquez killed an 18th Street gang member in a gang-motivated shooting. Counsel for Baires made no objections during this testimony.

Instead, at the conclusion of Shapiro’s testimony, when the State moved to introduce a certified copy of Sanchez Vasquez’s conviction, Baires’ counsel noted a continuing objection, which the trial judge overruled. F. Verdict and Sentencing On February 14, 2019, the jury found Baires guilty on all counts: first-degree murder, attempted first-degree murder, conspiracy to commit first-degree murder, use of a handgun in a crime of violence, and participation in a criminal gang. On June 28, 2019 the court sentenced Baires to life imprisonment for first-degree murder, and life imprisonment with all but twenty years suspended to be served consecutively for attempted first-degree murder. For conspiracy to commit first-degree murder, the court sentenced Baires to a period of life to be served concurrently with the first-degree murder count.

Baires received 6 a sentence of 20 years with all but five years suspended for using a handgun in a crime of violence, to be served concurrently with the first-degree murder count. Finally, for the participation in a criminal gang count, the court sentenced Baires to 20 years with all but five years suspended. DISCUSSION I. THE TRIAL COURT ERRED IN ADMITTING EVIDENCE OF UNRELATED GANG CONVICTIONS A. The Parties’ Contentions Baires insists that the circuit court erred in allowing Detectives Genung and Shapiro to testify to the jury about homicides that other members of MS-13 committed in June 2016 and September 2016. Baires claims that the evidence regarding these convictions had no connection to him nor to his case.

In making this assertion, Baires argues that the testimonies of Genung and Shapiro are irrelevant under Maryland Rule 5-402 in that the testimonies do not make the allegations against him more probable or less probable than if this evidence had not been introduced. The trial court admitted the evidence of the other homicides relying on Maryland Code Annotated, (2002, 2012 Repl. Vol.), Criminal Law (“CR”) Article § 9-804 and its application in Marshall v. State, 213 Md. App. 532 (2013). Baires does not argue that CR § 9-804 and Marshall are inapplicable, but instead argues that the trial judge incorrectly interpreted Marshall.

Specifically, Baires distinguishes his circumstances from those presented in Marshall by pointing out that there, the State proved CR § 9-804(a)(1)’s required element of “participat[ing] in a criminal gang knowing that the members of the 7 gang engage in a pattern of criminal gang activity” by illustrating that Marshall individually participated in other gang activities. Moreover, Baires asserts that the State introduced no evidence relating to his knowledge of gang activity that MS-13 members were engaged in, a required element of CR § 9-804(a)(1). In contrast, at Baires’ trial, the State attempted to prove the element of a pattern of criminal gang activity by showing that other MS-13 murders—ones in which Baires is not accused of participating—had occurred in the same county where Baires allegedly committed his crimes for MS-13. The State contends that CR § 9-804, which requires the establishment of a pattern of criminal gang activity, makes the testimonies of Shapiro and Genung relevant.

According to the State, Marshall does not stand for the proposition that a pattern of gang activity must be proven through evidence involving the individual defendant. Rather, the State asserts that Marshall holds that a pattern of gang activity must be proven through evidence that the organization was involved in criminal gang activity, which may include evidence that does or does not concern the individual defendant so long as it concerns the gang. In essence, Baires believes that Marshall dictates that the only evidence that the State can use to prove that he participated in a criminal gang that was engaged in a pattern of gang activity is through evidence that has a direct connection between himself and the other incidents. In contrast, the State asserts that Marshall does not require that the evidence of the pattern of gang activity must involve the individual defendant.

The State also makes a twofold argument about waiver. At trial, Baires made no objection regarding Genung’s testimony regarding the June 2016 killings until the State moved to enter a certified record of the conviction into evidence. And, with Shapiro’s 8 testimony, Baires made no objection during the questioning of Shapiro but then made his “continuing objection” during the introduction of the certified conviction regarding the September 2016 killing. The State argues that Baires waived his objection under Maryland Rule 4-323(a) by not objecting at the time that the evidence was offered.

The State also claims that even if Baires’ objections relate only to the records of convictions and not to the oral testimony, any error in admitting the conviction records is harmless because the records of convictions contained information that had already been established without objection through the detectives’ testimony. Baires counters that no waiver exists because the purpose of Genung’s and Shapiro’s testimony was not immediately apparent but once its purpose was realized, Baires’ counsel immediately objected. Baires argues his objection was in close proximity to the detectives’ testimony. B. Standard of Review Relevant evidence is generally admissible.

Decker v. State, 408 Md. 631, 648-49 (2009) (citations omitted). When a trial court makes a finding regarding relevance, appellate courts “are generally loath to reverse the trial court unless the evidence is plainly inadmissible under a specific rule or principle of law or there is a clear showing of abuse of discretion.” Id. While trial judges have “wide discretion when weighing the relevancy of evidence[,]” judges do not have the discretion to admit irrelevant evidence. State v. Simms, 420 Md. 705, 724 (2011).

With regards to the issues of relevancy, therefore, “[t]he determination of evidentiary relevance is a legal question that is reviewed de novo. State v. Robertson, 463 Md. 342, 353 (2019) (citing Perry v. Asphalt & Concrete Services, Inc., 447 Md. 31, 48 (2016)). Because the trial judge’s ruling here was on the relevancy, we 9 review the ruling under a de novo standard of review. C. Waiver Analysis 1.

Objections to Evidence under Maryland Rule 4-323 Taking first the issue of whether the appealability of the evidence regarding the unrelated homicides was waived, Rule 4-323(a) provides: (a) Objections to Evidence. An objection to the admission of evidence shall be made at the time the evidence is offered or as soon thereafter as the grounds for objection become apparent. Otherwise, the objection is waived. The grounds for the objection need not be stated unless the court, at the request of a party or on its own initiative, so directs.

The court shall rule upon the objection promptly. When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court may admit the evidence subject to the introduction of additional evidence sufficient to support a finding of the fulfillment of the condition. The objection is waived unless, at some time before final argument in a jury trial or before the entry of judgment in a court trial, the objecting party moves to strike the evidence on the ground that the condition was not fulfilled. Moreover, with respect to the method of making continuing objections, Rule 4-323(b) states: (b) Continuing Objections to Evidence.

At the request of a party or on its own initiative, the court may grant a continuing objection to a line of questions by an opposing party. For purposes of review by the trial court or on appeal, the continuing objection is effective only as to questions clearly within its scope. 2. Timing of the Objections The State correctly asserts, and Baires does not dispute, that Rule 4-323(a) requires objections to be made “at the time the evidence is offered or as soon thereafter as the grounds for objections become apparent.” The initial dispute here, however, is whether Baires’ objection was timely. To be sure, Baires did not immediately object to the 10 prosecutor’s questions nor to Officers Genung’s and Shapiro’s answers regarding the unrelated homicides.

His objection came only when the State moved to admit a certified copy of the murder convictions into evidence at the conclusion of the direct examinations. Rule 4-323(a) also imposes that the objections not made immediately must come “as soon thereafter as the grounds for objection become apparent. Upon the State’s offer of evidence regarding the June 2016 shooting, the conversation immediately following Baires’ objection between his counsel, counsel for the State, and the trial judge illustrates that the grounds for Baires’ objection was not immediately apparent to his counsel: [COUNSEL FOR BAIRES]: Objection, Your Honor. THE COURT: You want to come up.

(Counsel approach the bench) [COUNSEL FOR BAIRES]: I failed to see the relevance of that case that happened subsequent to the incident that we are here about. It does not involve the same parties. I’m not quite sure what the relevance is. [State counsel and the trial judge discuss the “pattern of criminal gang activity” element from Maryland Criminal Law § 9-804 and the holding of Marshall v. State, 213 Md. App. 532 (2013).] [COUNSEL FOR BAIRES]: I’m still kind of lost. Following this discussion, Baires twice more noted his objection.

Upon the State’s admission of the copies of the unrelated certified convictions to prove Baires’ gang participation, Baires’ counsel made a continuing objection, which the trial judge noted and overruled. We recognize that counsel cannot be clairvoyant. At the same time, we also think that counsel’s confusion about why the prosecutor was asking the questions here should 11 have prompted an objection based on relevance. In any event, as to the timeliness of the objection, counsel objected “as soon thereafter as the grounds for objections become apparent,” namely, when the State announced that the convictions were meant to prove Baires’ participation in a criminal gang.

Therefore, we conclude that under Rule 4-323(a) Baires did not waive or otherwise forfeit his right to appeal the admissibility of the testimony and the conviction records. 3. Duplicative Evidence Most of the State’s waiver argument claims that Baires waived his right to appeal as to the Genung and Shapiro testimonies because the testimonies are duplicative to the admitted conviction records. The State points us to DeLeon v. State and Yates v. State to prove that Baires’ objection is waived. 407 Md. 16, 31 (2008); 439 Md. 112, 129 (2012). The State’s argument here is essentially that because the testimony of Genung and Shapiro cover precisely the same information as the conviction records, Baires waived his appealability on the issue of the testimony.

See DeLeon v. State, 407 Md. at 31 (citing Peisner v. State, 236 Md. 137, 145-46 (1964) (“Objections are waived if, at another point during the trial, evidence on the same point is admitted without objection.”)). The State’s argument, however, necessarily depends on this Court concluding that Baires’ objection to the testimony was not timely. As explained above, we hold that Baires timely objected. Thus, no situation exists here in which non-objected-to admitted evidence (the testimony) was “on the same point [as evidence] admitted without objection” (the conviction records).

See id. Because the State’s argument fails to meet the assumption on which it is based, we hold that Baires’ objection is not waived due to duplicity. 12 D. Admissibility of Unrelated Gang Convictions 1. Pattern of Criminal Gang Activity CR § 9-804(a) 1 states: (a) A person may not: (1) participate in a criminal gang knowing that the members of the gang engage in a pattern of criminal gang activity; and (2) knowingly and willfully direct or participate in an underlying crime, or act by a juvenile that would be an underlying crime if committed by an adult, committed for the benefit of, at the direction of, or in association with a criminal gang. A “pattern of criminal gang activity” is defined in CR § 9-801(e) as: (e) “Pattern of criminal gang activity” means the commission of, attempted commission of, conspiracy to commit, or solicitation of two or more underlying crimes or acts by a juvenile that would be an underlying crime if committed by an adult, provided the crimes or acts were not part of the same incident. 2 As evidenced in CR § 9-804(a) above, an element of the crime that the State must prove is that the criminal organization members engaged in “a pattern of criminal gang activity.” Baires argues that according to this Court’s ruling in Marshall, the CR § 9-804 1 As of October 1, 2020, a new version of CR § 9-804 went into effect.

See CRIMINAL ORGANIZATIONS—PENALTIES AND PROCEDURE, 2020 Maryland Laws Ch. 422 (H.B. 1083). This version replaces the word “gang” with “criminal organization.” This opinion references the previous version of CR 9-804 as that version was effective at the trial. However, the amendments between the previous and new version appear to make no difference as to the analysis of the issues of this case or the Court’s precedents at issue here that examine CR § 9-804. 2 Like CR § 9-804, CR § 9-801 has likewise been amended since trial. However, all amendments here occurred in subsection (g), which relates to underlying crimes.

Subsection (e), relevant here, is unchanged. Thus, the recent amendments to CR § 9-801 do not impact this case. 13 pattern of gang activity element must be proven through evidence that links defendants individually to other gang activities. See Marshall, 213 Md. App. at 546-47 (CR § 9-804 “requires proving that [the defendant] engaged in a pattern of behavior with other individuals”). Further, Baires argues that the State had to prove that he knew that other members of MS-13 were engaged in the proffered gang-related activity.

Despite Baires’ reliance on the above-quoted statement, it is important to recognize that Marshall was not decided on the basis of distinguishing whether evidence relating to “a pattern of criminal gang activity” involved the defendant individually or whether it involved separate gang members. See id. Rather, the relevant issue in Marshall was whether evidence of activities involving the defendant brought by the State could be used for § 9-804 purposes. See id.

Baires fails to appreciate that Marshall’s language pertaining to satisfaction of the CR§ 9-804 pattern of criminal gang activity proof requirement via an individual defendant’s activities was in relation to the context of the facts before the Court, in which the State there chose to prove the CR § 9-804 element through such individualized activities. By failing to take this into account, Baires requests that this Court extend Marshall in a way that would lead to a distortion of the statute. In Marshall, the defendant argued that the evidence was unfairly prejudicial because the evidence specifically related to him, while here, Baires asserts that the evidence is irrelevant because it does not relate specifically to him. The facts in Marshall show that it was necessary for the State to use the defendant’s own participation in a gang to prove the pattern of gang activity required by CR § 9-804.

The particular gang at issue there was a small gang that Marshall started himself. Id. at 536. Marshall had previously been a part 14 of the Bloods, a street gang with members throughout the United States, 3 but left it in 2007 to form the small “Family Over Everything” gang, which was confined to the City of Baltimore. Id. at 536-38.

In just the following year after starting his localized gang, Marshall was arrested for committing a kidnapping and murder of a Bloods gang member. Id. In both size and the amount of time that the gang has had a presence in a locality, the “Family Over Everything” gang sharply contrasts with MS-13. According to Norris, the State’s expert witness on street gangs, MS-13 is a huge gang that started in Los Angeles decades ago, but has now spread across the globe, and has a presence in Prince George’s County.

Given the difference in the size and scope of MS-13 with the Family Over Everything gang, it stands to reason that the CR § 9-804’s pattern-of-gang-activity element may be satisfied through activities of other MS-13 gang members, rather than the activities of the individual defendant. Additionally, the defendant in Marshall had been linked to other crimes involving the Family Over Everything gang, such as robbing a bar. Marshall, 213 Md. App. at 547 . In Marshall, defendant engaged in other gang activities that the State knew about, apart from the kidnapping and murder for which he was being tried.

Here, there is no indication from the record or the parties that Baires had ever been tied to any crimes other than those from which he now appeals. Baires would have us read into the statute, through our Marshall holding, that the only way that a pattern of criminal gang activity can be proven is when the other incidents of gang activity relate specifically 3 The Encyclopedia Britannica: The Bloods. https://bit.ly/3cQEXuR. 15 to the individual defendant. Adoption of such a reading, however, would be to add words to the statute that are not there. Indeed, Baires’ interpretation of CR § 9-804(a) would create situations where a defendant could plainly, in the precise words of the statute, “participate in a criminal gang knowing that members of the gang engage in a pattern of criminal gang activity[,]” yet still be non-prosecutable for the offense if it were the individual defendant’s first instance of known individual participation.

See id. Importantly, though, nothing in the language of CR § 9-804 requires the individual defendant to have engaged in a pattern of criminal gang activity. All that is required is that the defendant have knowledge that “members of the gang” had engaged in the pattern of such activity. CR § 9-804(a) (emphasis added).

We perceive nothing in CR § 9-804(a) which limits the prosecution to instances of participation where there is evidence that the defendant had already or subsequently personally participated in a pattern of gang activity. Specifically, the statute only requires that “members” participate in criminal gang activity. Id. The statute makes no distinction whatsoever as to whether the “members” must or must not include the individual defendant.

The statute moreover provides no protections for individuals against prosecution simply because it cannot be proven that the individual has at separate times participated in gang activities. Marshall was correctly decided and is applicable in analyzing CR § 9-804(a) issues. Contrary to Baires’ argument, however, Marshall does not limit the State to proof of only the individual defendant’s activities to prove the necessary pattern of criminal gang activity. Baires points to our statement that “we agree with the State that [CR § 9-804] requires proving that [the defendant] engaged in a pattern of behavior with other 16 individuals” to mean that in all contexts, such proof involving the defendant individually is the only way for the State to prove the element of the statute.

See Marshall, 213 Md. App. at 546-47 . However, such a reading fails to appreciate that this language from Marshall was in direct reference to the specific evidence that was before this Court and referred to that evidence in its appropriately narrow context. Indeed, the sentence immediately following the cited statement reads: “To the extent that such evidence [regarding the defendant’s activities] may show a ‘propensity for criminal behavior,’ the statute clearly allows such evidence as an exception to the Rule, and in fact makes such evidence directly relevant to the offense.” Id. As illustrated by this subsequent statement, we were discussing the CR § 9-804 requirement as it applied to that case.

Our statement there in no way created a broad rule that limits the type of evidence that the State can admit to prove the pattern of criminal gang activity element from CR § 9-804 to evidence that relates only to activities of the individual defendant. In re Kevin T., 222 Md. App. 671 (2015), decided after Marshall, supports that we did not impose an interpretation like the one Baires proposes. There, we held that “[i]n order to prove a violation of CR § 9-804, the State [is] required to show that the MS-13 gang engaged in a pattern of criminal activity as defined in CR § 9-801(d).” Id. at 679. We went on to conclude: Our review of the record indicates that there was no evidence before the circuit court regarding “underlying crimes” that MS-13 either committed, attempted to commit or had conspired to commit.

Sergeant Norris, the State's MS-13 expert, never testified to specific crimes attributable to MS-13. The prosecutor appeared to be getting to that point, but stopped short of asking about specific criminal activity that would 17 have established that MS-13 engaged in a pattern of criminal gang activity[.] Id. at 679 (emphasis added). Consequentially, In re Kevin T.’s holding illustrates that in proving a pattern of gang activities, the State is not bound to activities in which Baires personally participated. Id.

Rather, the activities can be proven through the actions of any of the gang’s members. Id. 2. Knowledge Element of CR § 9-804(a) In addition to CR § 9-804 requiring the State to establish a pattern of criminal gang activity, the statute also requires that the State prove that the defendant possessed knowledge that the gang members engaged in such gang activity. CR § 9-804(a)(1) (“A person may not . . . participate in a criminal gang knowing that the members of the gang engage in a pattern of criminal gang activity[.]”).

Accordingly, in order for Baires to be convicted of participation in a criminal gang, at trial, the State must introduce evidence showing that Baires had knowledge that MS-13 members were engaged in a pattern of criminal gang activity. Baires argues that the State introduced no evidence whatsoever that relates to whether he had knowledge that MS-13 members engage in criminal gang activity. Specifically, Baires asserts that the introduction of evidence regarding the June and September 2016 shootings did not prove that Baires knew that members of MS-13 were engaged in a pattern of criminal gang activity. In making this argument, Baires distinguishes the facts here from those in Marshall.

Baires notes that in Marshall, the State presented evidence that connected the defendant to gang activity because the defendant 18 himself committed the crimes while acting as the head of gang. But, Baires argues such a connection is absent here. For the State’s part, it made no argument, at trial or on appeal, as to how the evidence of the unrelated convictions—or any other evidence introduced at trial—established Baires’ knowledge that MS-13 members were engaged in a pattern of criminal gang activity. Although the State asserted at oral argument that Baires’ argument regarding the lack of State evidence pertaining to his knowledge that MS-13 was engaged in a pattern of criminal gang activity was waived for not being asserted in Baires’ brief, the State made no argument as to the merits of the claim at oral argument nor in its brief.

First, the State’s assertion pertaining to Baires’ alleged waiver of the argument cannot succeed. The State claimed at oral argument (1) that the argument was not preserved for appeal during trial and (2) that the argument was not raised in Baires’ brief. However, as was more fully discussed in Part I, Section C, Subsection 4 of this opinion, counsel for Baires appropriately objected to the introduction of the June and September 2016 certified convictions based on relevancy. That relevancy objection preserved for appeal Baires’ argument asserting that the introduction of the certified convictions is irrelevant for failure to establish the necessary knowledge requirement of CR § 9-804(a)(1).

Regarding the State’s assertion made at oral argument that Baires failed to argue the knowledge element in his brief or reply brief, the Maryland Rules indeed require that an appellant’s brief must include an “[a]rgument in support of the party’s position on the issue.” Md. Rule 8-504(a)(6). However, as illustrated on the thirteenth page of Baires’ brief, Baires did, in fact, argue in his brief on appeal that the knowledge element from CR § 9-804(a)(1) was not met: 19 The glaring difference between [Baires’] case and the facts in Marshall is that the other criminal act introduced by the State in Marshall [(sic)] directly involved the defendant. In Marshall, the State introduced evidence of a robbery that took place after the incident in the case Marshall was charged with. The witness who testified indicated that Marshall was present during the robbery and was “together” with the other individuals in ordering the robbery.

The Court [in Marshall] held that the evidence of his presence during the robbery “was relevant to the statutory requirement that Marshall ‘knowingly and willfully direct [(sic)] or participate [(sic)] in the commission an [(sic)] underlying crime . . . committed at the direction of, or in association with a criminal gang.’” [Marshall, 213 Md. App.] at 547. .... In [Baires’] case, there was no such testimony or evidence connecting him to the unrelated crimes. [Baires] was not alleged to have been present at, a party to or have any knowledge of the crimes that the State introduced against him at trial. Without a connection between [Baires] and the introduced convictions, they do not satisfy the element that he participated in a criminal gang knowing that the members of the gang were engaged in a pattern of criminal gang activity. As such, the evidence was not relevant and the [c]ourt committed a reversible error by admitting it against [Baires].

In fairness to the State, the above-quoted language from Baires’ brief appears to be the only part in either Baires’ brief or his reply where the knowing requirement was addressed. Baires largely focused his argument on other issues in his brief yet made the knowing requirement more central during oral argument. Nonetheless, while “[a]rguments not presented in a brief or not presented with particularity will not be considered on appeal[,]” Klauenburg v. State, 355 Md. 528, 552 (1999), arguments that are “scant” or even “implicit” are properly preserved. See Barnes v. State, 437 Md. 375, 388 (2014) and Grant v. State, 414 Md. 483, 489 (2010).

Here, Baires’ argument regarding the knowledge element, though perhaps scant, is certainly more than implicit. Therefore, Baires’ 20 argument in his brief meets the minimum requirement to be considered on appeal, contrary to the State’s suggestion at oral argument. Since we conclude that the issue is appropriate to consider on appeal, we next address the merits. The State made no argument at trial or on appeal as to how the knowledge requirement was met with respect to the certified convictions of the June and September 2016 killings.

This Court has reviewed the transcript of the four-day trial to determine whether such knowledge might be inferred elsewhere. To be sure, a substantial amount of evidence exists that (1) codefendant Beltran-Cazun, self-admittedly, was a member of MS-13 and present at the shooting, (2) the shooting occurred on behalf of MS- 13, (3) Baires was at the scene of the shooting, (4) Baires actively participated in the shooting, (5) MS-13 is a criminal gang with a presence in Prince George’s County, and (6) members of MS-13 were engaged in a pattern of criminal gang activity. Notably, however, there appears to be no evidence presented at any point during the four-day trial that suggests any knowledge that Baires might have possessed regarding a pattern of criminal gang activity. As discussed in detail in Part I Section D above, the State introduced evidence at trial of MS-13 shootings that occurred in June and September 2016 to satisfy CR § 9-804 and to prosecute Baires on his participation in a criminal gang charge.

However, in explaining the purpose of this evidence, the State repeatedly referred only to the pattern of criminal gang activity element and never to the knowledge element. For example, in arguing at trial that Baires’ counsel’s objection to the introduction of the certified conviction involving the June 2016 shooting should be overruled, the State asserted that “the relevance is that as part of being charged with violation of gang 21 participation statute [(sic)], the State has to prove that there was a pattern of criminal gang activity. One of the underlying events to establish that is murder.” No mention of Baires’ knowledge was made by the State. The immediately ensuing exchange between the counsel for Baires and the trial judge reveals that the trial judge similarly appears to have overlooked the knowledge requirement: THE COURT: [T]here is an element in [the participation in a gang] statute that says it has to be proven by the State that there is similar gang activity.

And that’s what they have to prove. It’s an