Chilcoat v. State

ADKINS, Judge. James Leonard Chilcoat, appellant, was convicted by a jury in the Circuit Court for Talbot County of first degree assault and carrying a dangerous weapon openly with the intent to injure. The trial court sentenced appellant to a term of fifteen years incarceration with all but one year suspended for the assault conviction, and to a three year sentence with all but two and one-half years suspended for the weapon conviction, six months to be served consecutive to the assault sentence. Chilcoat presents four questions, which we have reordered: ³⁹⁷ I. Was the evidence sufficient to sustain his conviction for first degree assault?

II

Was the evidence sufficient to sustain his conviction for carrying a dangerous weapon openly with intent to injure?

III

Did the trial court err by failing to merge the weapon conviction into the conviction for first degree assault?

IV

Did the trial court err by awarding restitution directly to the victim’s creditors? We hold that the evidence was sufficient to sustain Chilcoat’s conviction for first degree assault, and we affirm Chilcoat’s conviction for that offense. We hold that the evidence was insufficient to sustain Chilcoat’s conviction for carrying a deadly weapon openly with intent to injure and that the trial court should not have awarded restitution directly to the victim’s creditors. We therefore reverse Chilcoat’s conviction on the weapon charge and vacate the restitution provision.

Chilcoat’s third question is therefore moot. FACTS AND LEGAL PROCEEDINGS Chilcoat’s convictions are the result of his assault on Andrew Keene, at Pamela Hickman’s home on January 20, 2002. About one week before the assault, Hickman and Chilcoat ended their two year intimate relationship. Because Chilcoat was married and Hickman believed “he had no intentions on leaving his wife[,]” she concluded that “[h]e wasn’t doing nothing but hurting me and my son and his family.” According to Hickman, about a week before the assault, Chilcoat entered a local bar or club called Pepper Jack’s, saw Hickman sitting with Andrew Keene, and told her that he never wanted to see her again.

On January 20, 2002, Hickman invited Keene to her home in Easton for dinner. Keene arrived sometime around 3:00 or 3:30 that afternoon. Sometime after that, Chilcoat “pulled up in [her] driveway kind of fast.” Hickman was in the kitchen at the time, but Chilcoat’s arrival scared her, so she went into the living room. ³⁹⁸ Keene testified that Chilcoat came into the house through the back door. They argued, each telling the other to leave, but neither man did.

According to Keene, Chilcoat told him that he had been seeing Hickman for two years and that Keene “came sneaking in the back door.” When Chilcoat walked toward the living room, Keene followed “because [he] was afraid that [Chilcoat] would hurt Ms. Hickman.” Chilcoat then turned around and said, “I’ll show you who’s going home.” Keene put his hands up to defend himself. The next thing Keene remembered was waking up on the kitchen floor and hearing Chilcoat’s van leaving. Brian Hickman, 1 Pamela Hickman’s son, was sleeping in the living room when his mother came into the room and told him that Chilcoat had just arrived. Brian got up and went to the area where the kitchen and living room meet.

He heard Chilcoat and Keene arguing. When he saw Chilcoat pick up a beer stein, he called to his mother that they were fighting. “[Tjhat’s when Andy never got up and [Chilcoat] left[.]” Brian described the incident: I seen Andy and [Chilcoat] started arguing by saying get out of the house. And then [Chilcoat] said he dated mom for 2 years and then Andy said well just get out and then Jim walked over to ... our little Budweiser stand we have and grabbed that mug and took it over to Andy and hit him 4 or 5 times in the back of the head and then made a comment, look he’s dead. Brian did not hear Keene threaten Chilcoat, nor did he see anything in Keene’s hand when he fell.

Hickman did not see the fight, but returned to the kitchen when Brian yelled that Chilcoat and Keene were fighting. She saw Chilcoat standing over Keene with the beer stein in his hand. After Chilcoat put down the stein and left, Hickman tried to get Keene up, but he was initially unresponsive. When she was able to get him to the counter, she called the ³⁹⁹ police and an ambulance.

Asked how long Chilcoat had been in her home before she heard Brian screaming that they were fighting, she replied, “It happened very fast.” Chilcoat testified that he and Hickman had spent all but one Sunday together during the year prior to the incident. He said that he had spent the night at Hickman’s house on the Thursday prior to the fight and that he had told Hickman that he would move in that Sunday. He reported that he had telephoned that morning and left messages “on her answering machine and on her personal phone that I was on my way.” He said that he had been to her house earlier that day and had left a note on her door saying he would be back. Chilcoat said that he had known Keene “a little bit” from seeing him “at the bar,” “just to talk to.” Chilcoat denied having seen Hickman and Keene together at Pepper Jack’s and telling her that he did not want to see her anymore.

Chilcoat’s version of what happened when he initially entered Hickman’s house was similar to Keene’s. According to Chilcoat, however, Keene “got all jumpy and he reached over and grabbed something off the counter.” Chilcoat reported that he then grabbed the mug. He said that after they each had picked up something, they continued telling each other to leave. He said, “And I turned my head looking towards the living room waiting for somebody to walk in and Andy just flew at me.” He said that he had the mug in his hand, and “it was just 4 or 5 seconds and it was just 1, 2, 3, 4 like that real quick blows, that was all.” Chilcoat maintained that the last blow, which hit the top of Keene’s head, occurred while Keene was pushing him backwards.

He said that Keene’s weapon cut his fingers and that he was bleeding “through the chest.” He said that his hand was bleeding and that he had bled “all over the mug.” He said that Keene was getting up when he left and that he left because Keene “had already came at me once.” Hickman, testifying in rebuttal, confirmed that Chilcoat had left several messages on her phone, including one telling her that he would be there around 11:00 or 11:30. She said that ⁴⁰⁰ she had left home for about an hour because she did not want to be there when he came. He also left a message saying he had “already taken care of’ Keene. She reported that after the incident, Chilcoat was not injured and she did not see him bleeding.

Additional facts will be set forth as needed in our discussion of the issues presented. DISCUSSION I. First Degree Assault The Medical Evidence Keene testified that he did not remember being struck, indicating that he lost consciousness as a result of the blows. This was corroborated by Pamela Hickman’s testimony that Keene was initially unresponsive when she went to help him up. Keene was taken by ambulance to Easton Memorial Hospital where medical personnel took CT scans and x-rays.

Because the hospital did not have a neurologist available, Keene was transferred to Peninsula Regional Medical Center. There, he had surgery in which a portion of his skull was replaced with wire mesh. Photographs of Keene’s external injuries were admitted into evidence. Dr. Julius Zant, a neurosurgeon, testified that he saw Keene at Peninsula Regional Medical Center and determined that he had two depressed skull fractures.

He reported that the CT scan showed open depressed fractures that “raise[d] the risk of infection.” He reported that he performed surgery to debride the areas to prevent seizures and infection. He testified that the skull on the right side of Keene’s head was in little pieces and that he had to remove that portion of the skull. To protect the “soft exposed area beneath where the bone is missing[,]” he replaced it with mesh held in with titanium screws. After the surgery, Keene was given intravenous antibiotics to prevent infection. ⁴⁰¹ Zant also testified that it would be unusual for someone to die from an injury such as Keene’s; it would be more likely for the injury to result in a treatable infection or abscess.

Abscesses were not likely when such injuries were treated appropriately, but they “can be fairly likely” if the injury were left untreated. Even if treated, abscesses could result in blindness or paralysis, and, if not treated, they could result in death. Zant explained that Keene’s surgery was necessary, not simply to avoid infection, but because Keene “had a depressed skull fracture that required elevation and debridement.” Zant added that, “[h]ad [the injuries] been an inch or two in either direction [Keene] may well have” died. Keene’s medical records were admitted into evidence.

They indicate that Keene was discharged from the hospital on January 26, 2002, and was to receive post-operative care. The Parties’ Contentions Chilcoat contends that the evidence was not sufficient to sustain his conviction for first degree assault because the medical testimony indicated that (1) the injury was not likely to result in death, (2) it did not cause any sensory or motor deficit, and (3) Keene did not suffer any dizziness or vomiting. The State counters that Dr. Zant’s testimony established that Keene had two depressed skull fractures, that he removed a portion of Keene’s skull and replaced it with titanium mesh, and that complications could include a brain abscess that could result in paralysis or blindness. The State also points to Zant’s testimony that death would have been likely had the blows been “an inch or two in either direction.” Standard Of Review The standard for our review of the sufficiency of the evidence is whether, after reviewing 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.

See White v. State, 363 Md. 150, 162 , 767 A.2d 855 (2001). “Weighing the credibility of witnesses and ⁴⁰² resolving any conflicts in the evidence are tasks proper for the fact finder.” State v. Stanley, 351 Md. 733, 750 , 720 A.2d 323 (1998). Discussion Md. Code (1957, 1996 Repl. Vol.), Art. 27 section 12A 1(a)(1), 2 proscribing first degree assault, provides that “[a] person may not intentionally cause or attempt to cause serious physical injury to another.” “Serious physical injury” is defined in Art. 27 section 12(c) 3 as a physical injury that: (1) Creates a substantial risk of death; (2) Causes serious permanent or serious protracted disfigurement; (3) Causes serious permanent or serious protracted loss of the function of any bodily member or organ; or (4) Causes serious permanent or serious protracted impairment of the function of any bodily member or organ. Keene suffered two skull fractures and required neurosurgery to prevent the possibility of brain abscesses or seizures.

Although Keene’s injuries, with proper treatment, were not likely to cause death, Zant testified that abscesses were “fairly likely” without appropriate treatment, and that abscesses could result in death. He also opined that even if treated, abscesses could result in such problems as blindness or paralysis. Zant explained that he had to replace a portion of Keene’s skull with mesh, and that a blow one or two inches on either side of the injured spots would have been likely to cause death. Keene’s successful recovery does not change the nature of the injury he suffered.

In determining whether an injury creates a substantial risk of death, the focus is on the ⁴⁰³ injury, not how well the victim responded to medical treatment. As the Court of Appeals of Alaska explained: “Serious physical injury” may be proved, inter alia, by evidence establishing that the defendant inflicted physical injury by “an act performed under circumstances that create a substantial risk of death.” This definition of serious physical injury focuses on the circumstances in which the defendant performed the act that caused physical injury. The fortuity of prompt medical treatment and speedy recovery by the victim is not a primary consideration. Konrad v. Alaska, 763 P.2d 1369, 1376 (Alaska Ct.App.1988) (citation omitted).

See also New Jersey v. Turner, 246 N.J.Super. 22 , 586 A.2d 850, 853 (App.Div.), cert. denied, 126 N.J. 335 , 598 A.2d 892 (1991)(“a determination of whether the victim was subjected to a substantial risk of death requires the primary focus to be upon the nature and extent of the injury rather than on the effectiveness of medical treatment”); St. Clair v. Texas, 26 S.W.3d 89, 101 (Tex.Ct.App.2000)(“ ‘The relevant inquiry is the extent of the bodily injury as inflicted, not after the effects have been ameliorated or exacerbated by medical treatment’ ”)(pet. for review refused). Here, Zant’s testimony made it clear that Keene’s injuries created a substantial risk that Keene would have died without medical treatment. In addition, the statute prohibits not only causing, but attempting to cause, a serious physical injury to another. See Art. 27 § 12A-l(a)(l).

Although the State must prove that an individual had a specific intent to cause a serious physical injury, see Dixon v. State, 364 Md. 209, 239 , 772 A.2d 283 (2001), a jury may infer the necessary intent from an individual’s conduct and the surrounding circumstances, whether or not the victim suffers such an injury. See Ford v. State, 330 Md. 682, 703 , 705 n. 9, 625 A.2d 984 (1993). Also, the jury may “infer that ‘one intends the natural and probable consequences of his act.’ ” Id. at 704 , 625 A.2d 984 (citation omitted). ⁴⁰⁴ Here, Chilcoat grabbed a beer stein and hit Keene in the head four or five times. The jury saw photographs of Keene’s external injuries, the beer stein with which Chilcoat hit Keene, and Keene’s medical records.

The jury could determine whether inflicting a serious physical injury was the natural and probable consequence of hitting Keene with the stein. In addition, the evidence established that Chilcoat and Keene were rivals for Hickman’s affections and that Chilcoat saw Keene as an interloper in his relationship with Hickman. When Chilcoat encountered Keene in Hickman’s home and Keene refused to leave, Chilcoat deliberately grabbed a beer stein and hit Keene on the head four or five times, until Keene was rendered unconscious. After rendering Keene unconscious, Chilcoat commented, “Look, he’s dead.” The evidence was clearly sufficient for the jury to conclude that Chilcoat intended to inflict a serious physical injury on Keene.

II

Carrying A Weapon Openly With Intent To Injure Chilcoat is more successful with his contention that the evidence was insufficient to show that the beer mug was “worn” or “carried” within the meaning of Md. Code (1957, 1996 Repl. Vol.), Art. 27 section 36. Citing Thomas v. State, 143 Md.App. 97 , 792 A.2d 368 , cert. denied, 369 Md. 573 , 801 A.2d 1033 (2002), and State v. Stouffer, 352 Md. 97 , 721 A.2d 207 (1998), he asserts that the evidence showed “mere use” of a weapon. He argues that, “had the Legislature intended that a defendant receive an additional three-year sentence every time a dangerous or deadly weapon is used to commit an assault, the Legislature would have added the word ‘use’ to section 36(a).” The State disagrees, asserting that Brian Hickman’s testimony that Chilcoat “carried” the beer mug before hitting Keene with it satisfied the statute.

We agree with Chilcoat and explain. The Statute Chilcoat was convicted of violating section 36, which provides, in pertinent part: ⁴⁰⁵ § 36. Carrying or wearing concealed weapon; carrying openly with intent to injure; (a) In general. — (1) Every person who shall wear or carry any dirk knife, bowie knife, switchblade knife, star knife, sandclub, metal knuckles, razor, nunchaku, or any other dangerous or deadly weapon of any kind, ... 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 guilty of a misdemeanor.... “ ‘The cardinal rule of statutory interpretation is to ascertain and effectuate the intention of the legislature.’ ” Degren v. State, 352 Md. 400, 417 , 722 A.2d 887 (1999) (citations omitted). To determine legislative intent, we look primarily to the language of the statute itself.

See Marriott Employees Fed. Credit Union v. Motor Vehicle Admin., 346 Md. 437, 444-45 , 697 A.2d 455 (1997). “We give the language of the statute its natural and ordinary meaning, keeping in mind the aim and objective of the statute.” Jones v. State, 357 Md. 141, 159 , 742 A.2d 493 (1999). “[W]e are always free to look at the context within which statutory language appears. Even when the words of a statute carry a definite meaning, we are not ‘precluded from consulting legislative history as part of the process of determining the legislative purpose or goal’ of the law.” Morris v. Prince George’s County, 319 Md. 597, 603-04 , 573 A.2d 1346 (1990) (citations omitted). Weapons In The Home In Anderson v. State, 328 Md. 426, 432 , 614 A.2d 963 (1992), the Court of Appeals observed that the purpose of the statute in relation to concealed weapons was twofold: Criminal statutes dealing with concealed weapons serve two related purposes. First, they seek to protect the public by deterring persons from concealing on or about their persons weapons of which the public would be unaware, thereby preventing injury or death to unsuspecting members of the ⁴⁰⁶ public.

Second, these statutes protect the wearers or carriers of weapons from themselves, by attempting to deter persons from having at hand weapons that could be used in the heat of passion. (Citations omitted.) In State v. Brinkley, 102 Md.App. 774, 776-77 , 651 A.2d 465 (1995), we gave a broad reading to the statute, and declined to exclude weapons carried inside the