Boyer v. State

BISHOP, Judge. A grand jury sitting in the Circuit Court for Charles County issued a nine-count indictment, charging appellant, Timothy Allen Boyer, with two counts of assault and battery, four counts of reckless endangerment, and single counts of assault with intent to avoid lawful apprehension, resisting arrest, and possession of a machine gun for aggressive purposes. The circuit court denied appellant’s motion to sever the count involving appellant’s alleged assault and battery upon his wife; however, at the end of the State’s case, the court granted appellant’s motion for judgment of acquittal with respect to that count. A jury found appellant guilty of possession of a machine gun for aggressive purposes and four counts of reckless endangerment.

Appellant filed a timely motion for new trial, and, after a hearing, the trial court granted appellant’s motion with respect to the count involving the reckless endangerment of appellant’s wife. As to the remaining counts, the court denied appellant’s motion. Issues Appellant raises five issues, which we rephrase: I. Was the evidence sufficient to sustain appellant’s conviction for reckless endangerment?

II

Is Md.Ann.Code, art. 27 § 374 (1994) unconstitutional?

III

Was the evidence sufficient to sustain appellant’s conviction for aggressive use of a machine gun pursuant to Md.Ann.Code, art. 27 § 374?

IV

Did the trial court err when it refused to instruct the jury that Md.Ann.Code, art. 27 § 374 is a specific intent ³⁷ offense, and to define, for the jury, the term “aggressive use,” as used in § 374? V. Did the trial court’s denial of appellant’s pre-trial motion to sever prejudice appellant? FACTS A domestic argument occurred between appellant and his wife, Joni Boyer, over the couple’s impending separation and their daughter’s custody arrangements. Following the argument, Mrs. Boyer went to a nearby gas station and telephoned the Charles County Sheriffs Department.

Officer Ralph Aquaviva met Mrs. Boyer at the gas station, where she showed him a barely visible cut on her hand and informed him that appellant had assaulted her. Mrs. Boyer also informed Officer Aquaviva that appellant was intoxicated and owned several guns. Although Mrs. Boyer’s injury was minor, Officer Aquaviva and Officer Gary Holt accompanied Mrs. Boyer to the couple’s home to investigate the dispute. When they entered the couple’s driveway, the officers triggered an alarm system, which signalled their arrival to appellant, who was inside “playing with” his licensed and registered MAC 11, 9 mm machine gun.

Upon hearing the alarm, appellant put the gun under the bedsheet and laid down to watch television with his eleven-month old daughter. Mrs. Boyer directed the officers to the bedroom, where they found appellant lying in bed, partially under the bedsheet. Officer Aquaviva testified that he smelled alcohol and noticed that appellant’s eyes were bloodshot; however, Officer Aquaviva also testified that the scene was “peaceful and quiet.” The officers refused appellant’s request that they leave his home. When questioned by Officer Aquaviva, appellant refused to discuss his wife’s assault allegations.

During his conversation with appellant, Officer Aquaviva “observed [appellant’s] right hand under the covers and ... felt like [he] was in danger.” Consequently, Officer Aquaviva ordered appellant to remove his hand from under the bedsheet, and, ³⁸ when appellant refused, Officer Aquaviva pulled the bedsheet away and discovered the gun, which he seized and handed to Officer Holt, who disengaged it. Officer Aquaviva also testified that appellant’s gun safe, located in the couple’s bedroom, was open and contained various weapons. The officers conceded that appellant made no physical contact with the gun in their presence, and they testified that appellant made no aggressive or offensive gestures with the gun. Officer Aquaviva did testify, however, that, when he pulled back the bedsheet, the machine gun was pointed directly at him.

The machine gun was loaded, with its “safety” in the “fire” position, its setting on “SMG” (sub-machine gun), and a round of ammunition in the chamber. After appellant’s arrest, the officers found a second loaded magazine for the machine gun underneath appellant’s pillow. Appellant testified that he was a gun collector and that, when the officers arrived at his house, he was only “playing with” his machine gun. Appellant conceded that he refused to relinquish custody of his daughter to the officers, but asserted that he calmly asked the officers to leave his house.

Appellant denied that he was uncooperative with the officers and he asserted that he “threw the gun under [his] pillow” because he “didn’t want to have a gun in [his] hand while somebody walked into the house.” Appellant maintained that, while the officers were in his bedroom, he made a telephone call to his mother-in-law, during which, one of the officers “stuck” something in his face, causing him “to flinch.” According to appellant, “[b]efore [he] knew it, [his] daughter was taken from [his] right arm [and h]e was spun around head first into [his] covers.” DISCUSSION I. Reckless Endangerment Appellant asserts that the evidence was insufficient to support his convictions for reckless endangerment of his daughter, Officer Aquaviva, and Officer Holt. He insists that he engaged in no conduct that rose to the level of “substantial ³⁹ risk of death or serious injury,” as contemplated by Maryland’s “reckless endangerment” statute, now codified as Md. Ann.Code, art. 27 § 120 (1992) (hereinafter “§ 120”). Section 120 provides, in pertinent part, that “[a]ny person who recklessly engages in conduct that creates a substantial risk of death or serious physical injury to another person is guilty of the misdemeanor of reckless endangerment.... ” Id. According to appellant, neither his placement of the machine gun under the bedsheet before the officers entered his bedroom nor the presence of the gun under the bedsheet while the officers were present in his bedroom amounts to conduct sufficient to sustain his convictions under § 120. “Maryland’s reckless endangerment statute is aimed at deterring the commission of potentially harmful conduct before an injury or death occurs.

As a consequence, a defendant may be guilty of reckless endangerment even where he has caused no injury....” State v. Albrecht, 336 Md. 475, 500-01 , 649 A.2d 336 (1994). In Minor v. State, 85 Md.App. 305 , 583 A.2d 1102 (1991), aff'd, 326 Md. 436 , 605 A.2d 138 (1992), this Court concluded that, “[t]o commit the crime of reckless endangerment ..., a defendant need not intentionally cause a result or know that his conduct is substantially certain to cause a result.” Id. at 316, 583 A.2d 1102 . The Court of Appeals, affirming our decision, further stated that “whether the accused’s conduct, which created the substantial risk, was reckless under § 120(a) is a matter for objective determination, to be made by the trier of fact from all the evidentiary circumstances in the case.” Id. at 443, 605 A.2d 138 . Accordingly, “guilt under the statute does not depend upon whether the accused intended that his reckless conduct create a substantial risk of death or serious injury to another[;]” rather, the trier of fact must determine whether the accused’s conduct, when viewed objectively, ‘Vas so reckless as to constitute a gross departure from the standard of conduct that a law-abiding person would observe, ... thereby creating] the substantial risk that the statute was designed to punish.” Id. ⁴⁰ Responding to the appellant’s sufficiency of the evidence challenges in Minor v. State, the Court of Appeals found the evidence to be sufficient, and summarized: [The appellant] handed the loaded shotgun to his brother with the safety off and ready to fire; the two men had consumed three or four fifths of wine and the appellant admitted that he was “high off the drinks, cocaine and heroin”; the appellant’s brother indicated an intention to put the gun to his head and pull the trigger; and the appellant, in giving the shotgun to his brother, dared him to do so and gave him the gun in order to “call his bluff.” Id. at 443 , 605 A.2d 138 .

Although appellant argued that his involvement in his brother’s death was limited to “handing [his brother] a loaded gun and, in effect, daring him to use it on himself[,]” Minor, 85 Md.App. at 313 , 583 A.2d 1102 , the Court of Appeals held that, “[i]n light of the evidence ...[,] the trial judge did not err in finding the appellant guilty of the offense of reckless endangerment[,]” Minor, 326 Md. at 444 , 605 A.2d 138 , because whether the appellant’s conduct was reckless under § 120(a) was a matter for objective determination. “[W]hen an appellate court is called upon to determine whether sufficient evidence exists to sustain a criminal conviction, it is not the function or duty of the appellate court to undertake a review of the record that would amount to, in essence, a retrial of the case.” Albrecht, 336 Md. at 478 , 649 A.2d 336 . Stated succinctly, when a sufficiency challenge is made, the reviewing court is not to “ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt[;]” rather, the duty of the appellate court is only to determine “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.” Id. at 479 , 649 A.2d 336 (quoting Jackson v. Virginia, 443 U.S. 307, 318-19 , 99 S.Ct. 2781, 2788-89 , 61 L.Ed.2d 560 (1979)). ⁴¹ In the case sub judice, the jury convicted appellant of reckless endangerment based on the following evidence: (1) appellant had been drinking and allegedly assaulted his wife; (2) when appellant heard the driveway alarm, he placed, underneath his bedsheet, a loaded, sub-machine gun with the safety off, ready to fire; (3) appellant refused to cooperate with the officers and was visibly agitated while the officers were in his room; (4) appellant’s eleven-month old daughter was in bed with appellant, just inches away from the loaded machine gun; (5) when Officer Aquaviva pulled appellant’s bedsheet back, the submachine gun was pointed at him; and (6) Officer Aquaviva found a loaded magazine clip underneath appellant’s pillow. Appellant argues that his placement of the gun under the sheets “was a finite act that had a beginning and an end, happening only once,” and that “the mere presence of [his] gun under the bed sheets, without more, does not rise to the requisite level of conduct required for a showing of reckless endangerment.” Appellant claims that he never made physical contact "with the gun while the officers were in his bedroom and, therefore, he never engaged in any reckless conduct. In Minor, the Court of Appeals held that the appellant’s act of handing a loaded shotgun to his brother and “daring” his brother to pull the trigger amounted to reckless conduct.

The Court believed that the appellant did not intend for his brother to get hurt and only gave the gun to his brother to “call his bluff[;]” however, the Court concluded that, when viewed objectively, a reasonable trier of fact could have determined that appellant behaved recklessly. “In reviewing the sufficiency of the evidence presented on the charges of ... reckless endangerment, we emphasize that we are not sitting as the trier of fact and, therefore, we are not to ask ourselves whether we would convict based upon the evidence presented.” Albrecht, 336 Md. at 502 , 649 A.2d 336 . We must “only determine whether any rational trier of fact could have found [appellant] guilty of [reckless endangerment] based upon the evidence presented at trial.” Id. Although ⁴² appellant may not have had physical contact with the machine gun hidden beneath his bedsheet, it was in his possession and control. Also, the evidence demonstrated- that, while the officers were in the bedroom, the machine gun was loaded, pointed at Officer Aquaviva, and its safety was off.

Appellant and his eleven-month old daughter were inches away from the gun and appellant had his hand under the sheet, next to the gun. Like the appellant in Minor, appellant arguably did not intend to harm the officers or his daughter; however, as in Minor, we hold that, viewing the evidence in a light most favorable to the State, a reasonable trier of fact could have reasonably concluded that appellant’s conduct, when viewed objectively, was so reckless that “[it] constitute^] a gross departure from the standard of conduct that a law-abiding person would observe and ... create[d] the substantial risk that [§ 120] was designed to punish.” Albrecht, 336 Md. at 501 , 649 A.2d 336 (quoting Minor, 326 Md. at 443 , 605 A.2d 138 ).

II

Constitutionality of § 374 Appellant challenges the constitutionality of Md.Ann.Code, art. 27 §§ 374, 375 & 377, which cover the use and possession of a machine gun. Appellant’s argument is twofold: (1) appellant maintains that § 374 is void for vagueness and (2) appellant maintains that § 375 applies an impermissible presumption. A. § 374 “[T]he vagueness doctrine does not require absolute precision or perfection.” Williams v. State, 329 Md. 1, 13 , 616 A.2d 1275 (1992). Rather, the doctrine requires “that a penal statute ‘be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties.’” Id. at 8 , 616 A.2d 1275 (quoting Connolly v. General Constr.

Co., 269 U.S. 385, 391 , 46 S.Ct. 126, 127-28 , 70 L.Ed. 322 (1926)). The touchstone in determining whether a statute passes constitutional muster under the fourteenth amendment’s guarantee of procedural due process is “whether ⁴³ persons ‘of common intelligence must necessarily guess at [the statute’s] meaning.’” Id. (quoting Broadrick v. Oklahoma, 413 U.S. 601, 607 , 93 S.Ct. 2908, 2913 , 37 L.Ed.2d 830 (1973)). Additionally, for a penal statute to satisfy the vagueness doctrine, the statute must “provide ‘legally fixed standards and adequate guidelines for police, judicial officers, triers of fact and others whose obligation it is to enforce, apply and administer the penal laws.’ ” Id. at 8-9, 616 A.2d 1275 (quoting Bowers v. State, 283 Md. 115, 121 , 389 A.2d 341 (1978)).

See also Kolender v. Lawson, 461 U.S. 352, 358 , 103 S.Ct. 1855, 1858-59 , 75 L.Ed.2d 903 (1983) (holding that, to satisfy the void-for-vagueness doctrine, it is imperative that a penal statute avoid arbitrary enforcement). Appellant mb judice contends that § 374, which criminalizes the possession or use of a machine gun for aggressive or offensive purposes, is void for vagueness because it “fail[s] to put a criminal defendant on notice as to what conduct will constitute the aggressive or offensive use of a machine gun.” See Md.Ann.Code, art. 27 § 374 (1992). “The Supreme Court ‘has long recognized that the constitutionality of a vague statutory standard is closely related to whether that standard incorporates a requirement of mens rea.’ ” Williams, 329 Md. at 9 , 616 A.2d 1275 (quoting Colautti v. Franklin, 439 U.S. 379, 395 , 99 S.Ct. 675, 685-86 , 58 L.Ed.2d 596 (1979)). When the statute requires a specific intent to do a prohibited act, the statute is relieved “ ‘of the objection that it punishes without warning an offense of which the accused was unaware.’ ” Id. (quoting Screws v. United States, 325 U.S. 91, 102 , 65 S.Ct. 1031, 1035-36 , 89 L.Ed. 1495 (1945)).

In Williams , the appellant argued that the Maryland Drug Kingpin Act was void for vagueness because “the average person [could] not ascertain the upper limit of one’s conduct before becoming a drug kingpin, and that the statute invite[d] law enforcement officials to wield its enhanced penalties selectively.” Id. According to the appellant, “it [was] unclear who qualifie[d] as an ‘organizer, supervisor, financier, or manager’ in a drug conspiracy.” Id. The Court of Appeals, however, upheld the act as constitutional, stating: ⁴⁴ While the Maryland Drug Kingpin Act does not expressly require a specific intent to “wilfully” or “purposefully” occupy a position as an “organizer, supervisor, financier, or manager” in a drug conspiracy, the statute does, of course, impliedly necessitate a deliberate foray into some threshold of criminal drug involvement before one can reach the brink of kingpin status. Thus, in the same manner as specific intent statutes, the drug kingpin statute can in no way be “a trap for those who act in good faith.” United States v. Ragen, 314 U.S. 513, 524 [ 62 S.Ct. 374, 379 , 86 L.Ed. 383 ] ...

(1942). See also Boyce Motor Lines v. United States, 342 U.S. 337, 340 [ 72 S.Ct. 329, 330-31 , 96 L.Ed. 367 ] ... (1952) (It is not “unfair to require that one who deliberately goes perilously close to an area of proscribed conduct shall take the risk that he may cross the line.”) Id. at 10, 616 A.2d 1275 . The Court also emphasized that, when the meaning of a statute’s questionable terms “comport with everyday understandings of the words they define, the ... statute employs language accessible to persons of common intelligence^ who] need not guess at the statute’s meaning.” Id. at 11 , 616 A.2d 1275 .

Section 374 expressly punishes those who specifically intend to use or possess a machine gun for an aggressive or offensive purpose. Accordingly, § 374 “can in no way be ‘a trap for those who act in good faith’ ” Id. at 10, 616 A.2d 1275 . (quoting United States v. Ragen, 314 U.S. 513, 524 , 62 S.Ct. 374, 378-79 , 86 L.Ed. 383 (1942)). Furthermore, the use of the words “aggressive” and “offensive” as employed in § 374 are not technical terms.

They are common words with well understood meanings. Webster’s Tenth New Collegiate Dictionary defines “aggressive” as “tending toward or practicing aggression[;] marked by combative- readiness....” Webster’s Tenth New Collegiate Dictionary 23 (1993). The term “offensive” means “making an attack: AGGRESSIVE ... of, relating to, or designed for attack____” Id. at 806. “[A] statute does not become unconstitutionally vague merely because it may not be perfectly ⁴⁵ clear at the margins [what conduct] qualifies as [‘aggressive’ or ‘offensive’].” Williams, 329 Md. at 11-12 , 616 A.2d 1275 . We hold that § 374 plainly provides fair warning of serious consequences to persons who would possess or use a machine gun for a purpose “related to attack” or “marked by combative readiness.” B. § 375 Section 375 lists certain circumstances under which the machine gun possession or use prohibited by § 374 shall be presumed: (a) When the machine gun is on premises not owned or rented, for bona fide permanent residence or business occupancy, by the person in whose possession the machine gun may be found; or (b) When in the possession of, or used by, an unnaturalized foreign-born person, or a person who has been convicted of a crime of violence in any court of record, state or federal, of the United States of America, its territories or insular possessions; or (c) When the machine gun is of the kind described in § 379 and has not been registered as in said section required; or (d) When empty or loaded shells which have been used or are susceptible of being used in the machine gun are found in the immediate vicinity thereof.

According to appellant, because no rational connection exists between an “aggressive purpose” and “the mere existence of empty or loaded shells in the vicinity of the machine gun,” § 375 creates an impermissible statutory presumption. To determine the validity of a statutory presumption, the United States Supreme Court, in Tot v. United States, 319 U.S. 463 , 63 S.Ct. 1241 , 87 L.Ed. 1519 (1943), provided the following test: Under our decisions, a statutory presumption cannot be sustained if there be no rational connection between the fact proved and the ultimate fact presumed, if the inference of ⁴⁶ the one from proof of the other is arbitrary because of lack of connection between the two in common experience. This is not to say that a valid presumption may not be created upon a view of relation broader than [w]hat a jury might take in a specific case. But where the inference is so strained as not to have a reasonable relation to the circumstances of life as we know them it is not competent for the legislature to create it as a rule governing the procedure of courts.

Id. at 467-68 , 63 S.Ct. at 1245 . Stated another way, “a criminal statutory presumption must be regarded as ‘irrational’ or ‘arbitrary,’ and hence unconstitutional, unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend.” Leary v. United States, 395 U.S. 6, 36 , 89 S.Ct. 1532, 1548 , 23 L.Ed.2d 57 (1969). The constitutionality of § 375 depends on whether it can be said with substantial assurance that it is more likely than not that a person possesses a machine gun for an aggressive or offensive purpose when empty or loaded machine gun shells are found in its immediate vicinity. According to the State, that constitutional inquiry is irrelevant to the case sub judice because the trial court instructed the jury that it could “infer,” rather than “presume,” an aggressive or offensive purpose from the presence of ammunition found near the machine gun in appellant’s presence.

We disagree that appellant’s constitutional inquiry is irrelevant. Appellant was charged and convicted under § 375. The issue of the constitutionality of § 375 does not evaporate because the trial court instructed the jury that “[it] might but need not conclude that the purpose was aggressive ... when empty or loaded shells which have been used or are susceptible of being used in the machine gun are found in the vicinity thereof.” We do agree, however, that we must limit our constitutional analysis of § 375 to subsection (d) because the trial court explicitly instructed the jury that subsections (a), (b), and (c) were not relevant to determining appellant’s guilt ⁴⁷ or innocence. “It has long been settled that when a case is submitted to the jury on alternative theories the unconstitutionality of any of the theories requires that the conviction be set aside.” Leary, 395 U.S. at 31-2 , 89 S.Ct. at 1545-46 . Because the trial court submitted the machine gun possession count to the jury with instructions that only subsection (d) applied, we need not address appellant’s argument that § 375(b) is unconstitutional.

Appellant argued that § 375(d) is over-inclusive because “an individual cleaning