Bane v. State

ROBERT M. BELL, Judge. The issue presented in this case is whether separate convictions of storehouse breaking and stealing 1 may be ³⁰⁷ sustained when but one breaking occurred, involving, however, two separate businesses, operated from offices located in the same building and separated from each other only by a hallway and unlocked and open doors. By affirming the judgments of the Circuit Court for Prince George’s County, which imposed separate, consecutive sentences, the Court of Special Appeals answered in the affirmative. We granted the petitioner’s petition for certiorari and now reverse.

I. A jury convicted William Craig Bane, the petitioner, of two counts of storehouse breaking and stealing $5.00 or more, two counts of theft over $300.00, and one count of storehouse breaking with intent to steal more than $300.00. The premises into which the petitioner was found to have broken was a dwelling house which had been converted to commercial use. The owner used a part of the premises as a Nationwide Insurance office and rented the remainder for use as an office for the operation of a roofing business. The two offices were separated by a hallway which gave each office free access to the other.

There were no signs on the office doors, nor any indication that there were separate offices. Nor was there, so far as the record reveals, any indication of separateness on the outside of the building. The evidence produced at trial revealed that the point of entry to the entire premises was through a back window in the insurance agency office. Because that office and the roofing company office are separated by only a hallway, and not by locked doors, each having free access to the other, once entry was made, the petitioner had access to the roofing company office as well.

Property was taken from both offices. Accordingly, as we have seen, the petitioner was charged with, and convicted of, among other offenses, breaking and stealing from both offices. ³⁰⁸ The remaining counts of which he was convicted, having been merged into the breaking and stealing counts, the trial court sentenced the petitioner to consecutive ten-year terms of imprisonment. Fifteen years of the sentence were suspended in lieu of five years probation upon the petitioner’s release from imprisonment. On appeal to the Court of Special Appeals, the petitioner argued that the storehouse breaking and stealing counts should have resulted in but one conviction.

In particular, he urged that the evidence clearly showed that there was only one storehouse into which he could have broken; that there were two businesses located in the same building did not render the space occupied by each a separate storehouse. Rejecting that argument, the intermediate appellate court held: The evidence shows that there were separate offices within the building, which were separated by a hallway. Property was stolen from both offices and both owners. Because “stealing” is an essential element of the crime, see Turner v. State, 242 Md. 408 [, 219 A.2d 39 ] (1966), the separate stealings support separate convictions and sentences.

II

We are here concerned with the propriety of multiple sentences for conduct proscribed by a single statute, which, though occurring in a single transaction, gives rise to multiple prosecutions. This raises a question of the proper unit of prosecution; the intent with which the Legislature acted when enacting the statute must be divined. See Dickerson v. State, 324 Md. 163, 170-71 , 596 A.2d 648, 651-52 , (1991); Randall Book Corp. v. State, 316 Md. 315, 323-24 , 558 A.2d 715, 719-20 , (1989). Our quest, in that regard, begins with “the words of the statute, read in light of the full context in which they appear, and in light of external manifestations of intent or general purpose available through other evidence.” Cunningham v. State, 318 Md. 182, 185 , 567 A.2d 126, 127 (1989).

See State v. Bricker, ³⁰⁹ 321 Md. 86, 92 , 581 A.2d 9, 12 (1990); Davis v. State, 319, Md. 56, 60, 570 A.2d 855, 857 ; Kaczorowski v. City of Baltimore, 309 Md. 505, 513 , 525 A.2d 628, 632 (1987). “When the language is clearly consistent with the apparent purpose of the statute and the result is not absurd, no further research is required.” Dickerson, 324 Md. at 171-72 , 596 A.2d at 652 , citing Kaczorowski, 309 Md. at 515 , 525 A.2d at 633 . Moreover, the analysis of the statute’s language must be undertaken “from a commonsensical rather than a technical, perspective, ... always seeking to avoid giving the statute a strained interpretation or one that reaches an absurd result.” (citations omitted) Id. The language of the statute, particularly, as pointed out by the State, the Legislature’s use of the article, “any,” see Cunningham v. State, 318 Md. at 188 , 567 A.2d at 129 and Brown v. State, 311 Md. 426, 435-36 , 535 A.2d 485, 489 (1988), makes clear that the unit of prosecution contemplated by the Legislature is the individual storehouse broken. This common sense approach leads to a result that is reasonable, and not absurd.

The petitioner does not disagree that the proper unit of prosecution is the individual storehouse.

III

The State argues that the petitioner was properly convicted of two violations of storehouse breaking and stealing. It reasons, relying on cases from the Court of Special Appeals, 2 that a single building may contain multiple uses, including more than one storehouse, and, thus, it is a question of the sufficiency of the evidence whether separate convictions and sentences are permitted. That the petitioner broke into two storehouses, rather than one as the petitioner claims, is shown, the State maintains, by the trial testimony that two businesses occupied separate offices in ³¹⁰ the premises broken. The fact that the offices were not separated by locked doors, but only by a hallway did not, it asserts, prevent the offices from being separate storehouses.

It is of significance to the State, moreover, that “both Mr. Vincent’s office and Mr. Durringer’s private office are separated from the rest of the first floor by walls and a door.” The State argues that, because it provided access to both storehouses, only a single breaking was necessary to constitute a breaking of both: Given that this single breaking at once violated the security of both offices and provided Bane with access to both offices—each a unit of prosecution—no additional breaking into either needed to have been shown to support separate convictions, (emphasis in original) Alternatively, the State relies upon the opening of a closed cabinet in the inner office of the insurance agency in order to obtain a can of soup as being a sufficient second breaking to sustain the petitioner’s convictions for two storehouse breakings. 3 The petitioner acknowledges that separate storehouses may exist in a single building. He argues, however, that to constitute separate storehouses cognizable units of prosecution, each must be separately and independently identifiable as such: ... the separate structures must be closed off and designated separate in some way. A mere separation by walls and a door is not sufficient without something to indicate to the outside world that it is a separate structure. Such separation could be made explicitly with a sign on a separate door indicating a separate business exists within the structure, or implicitly with some other designation of separateness such as locking and sealing the separate storehouse off from the rest of the storehouse.

Thus, for example, in a shopping mall, there may be many separate storehouses co-existing under one roof, each with walls ³¹¹ and a door separating them from the other storehouses and each with a separate designation on the front of the storehouse indicating the separate company that sells its product within. The fact that the separate storehouses and the mall share the same roof obviously does not change their character as separate storehouses. Because, in this case, the offices serving the roofing business could not be identified separately and independently from those servicing the insurance agency, the building did not contain, the petitioner maintains, two separate storehouses, only one. 4 IV. The State has the burden of proving, beyond a reasonable doubt, all of the elements of the alleged crime. ³¹² State v. Evans 278 Md. 197, 206-207 , 362 A.2d 629, 635 (1976).

See Franklin v. State, 319 Md. 116, 122 , 571 A.2d 1208, 1211 (1990). An essential element of a violation of § 33 is the breaking into a storehouse. 5 The term “storehouse” has been given a rather expansive definition. In Hagans v. State, 316 Md. 429, 435 , 559 A.2d 792, 794-95 (1989), we held that a school was a storehouse. We reached the same result with respect to a department store.

Brooks v. State, 277 Md. 155, 163 , 353 A.2d 217, 222 (1976). In Hackley v. State, 237 Md. 566, 567 , 207 A.2d 475, 476 (1965), we held that a motion picture theater fell within the definition of storehouse. The Court of Special Appeals has expressly stated that “§§ 32, 33, and 342 [the Maryland statutes prohibiting storehouse breakings] cover all buildings other than dwelling houses.” (emphasis added). Sizemore v. State, 10 Md.App. 682, 686 , 272 A.2d 824 , 826 cert. denied, 261 Md. 728 (1971).

See also Buckley v. State, 2 Md.App. 508, 511, 235 A.2d 754, 756 (1967), in which, relying on this Court’s analysis in Hackley, supra, concluded that all buildings other than a dwelling house are within the meaning of the structures enumerated in Article 27, § 32. 6 In Hackley , 237 Md. 566 , 207 A.2d 475 (1965), addressing the issue whether a motion picture theater was a storehouse, we construed Article 27, § 342, which makes it unlawful to break into a “shop, storehouse, tobacco house, warehouse, or other building, although the same be not contiguous to or used with any mansion house, ...” and stealing money, goods or chattels under the value of $5.00 ³¹³ or with intent to steal property under the value of $100.00. In concluding that it was, we reasoned: We said in Martin v. State, 203 Md. 66, 75 [, 98 A.2d 8, 12-13 (1953)], that a factory, which was a type of building not mentioned in the statutes there involved, was included within the meaning of the term storehouse which was named in the statutes, because goods manufactured in the building were kept there for some period after being made ready for sale. Both in Putnam v. State, 234 Md. 537, 543 [, 200 A.2d 59, 62 (1964)], and McLaughlin, Jr. v. State, 234 Md. 555, 558 [, 200 A.2d 46, 48 (1964)], Chief Judge Bruñe for the Court, pointed out that Sec. 32 of Art. 27 dealt with breaking “a storehouse or other outhouse ” (emphasis supplied) and we held in Putnam that a drugstore was an outhouse within the contemplation of Sec. 32 (and inferentially, within the contemplation of Sec. 342), and in McLaughlin that proof that a bowling alley was broken into was sufficient to sustain a verdict of guilty on an indictment which charged the breaking of a storehouse. In Hardison v. State, 226 Md. 53, 58 [, 172 A.2d 407, 409-410 (1961)], Judge Prescott, speaking for the Court, adopted a dictionary definition of storehouse ... and equated storeroom as used in Sec. 33 of Art. 27 with storehouse as used in Sec. 32.

See also Jones v. Hungerford, 4 G & J, 402, 406 [ (1832) ], which held that a schoolhouse, not parcel of a dwelling house, was an outhouse and suggested that all buildings other than dwellings were covered by the statute there involved, which made it a crime to burn a variety of specified buildings, “or other outhouse not parcel of any dwelling house.” This is significant because Putnam and McLaughlin show that a storehouse as used in Sec. 32 is a form of outhouse and Sec. 32, after referring to a storehouse and other named buildings, refers to any “other outhouse.” The term storehouse in Sec. 32 certainly is to be given the same meaning as it has in Sec. 32, since the difference between the two, on this aspect, is ³¹⁴ only as to the value of the personal property intended to be stolen. Id. at 568-69 , 207 A.2d at 476-77 . The foregoing makes clear that the building, itself, having been converted from residential to commercial use, is a storehouse. Whether the fact that two businesses, not identifiable as