Coles v. State

BATTAGLIA, J. Petitioner LeOn Coles, Jr. (hereinafter “Coles”) entered the same bank on three separate occasions, walked up to a teller, and presented her with a note demanding money. After each teller complied, Coles left the bank with the money. Based on this conduct, the Circuit Court for Baltimore County, sitting without a jury, convicted him of three counts of robbery. Coles challenges the robbery convictions on the basis that there was insufficient evidence to prove that he stole the money by instilling fear in the tellers.

Because a rational fact finder could conclude, under the circumstances of this case, that there was sufficient evidence to satisfy the intimidation or “putting in fear” element of robbery, we shall affirm the convictions. ¹¹⁷ I. Background On Saturday, January 23, 1999, at about 10:00 a.m., Coles, wearing a baseball hat, a jacket or bulky shirt, and a scarf around his neck, entered the Dundalk branch of First National Bank of Maryland (hereinafter “First National”), approached teller Anna Estes, and gave her a bag and a note that she recalled as stating, “|P]ut some money in the bag.” The note also ordered her “not to hit an alarm, not to let anybody know,” and to return the note. Ms. Estes, who had thirty years of experience as a teller, “tried to talk him out of it” and “took [her] elbow and pushed the note to the floor.” Ms. Estes then placed $120, comprised of six twenty-dollar bills, into the bag, closed it, and handed it to Coles. Coles opened the bag, looked inside, and said, “Where’s the note?” Ms Estes responded, “I don’t know,” whereupon Coles “looked at [her],” and warned, “Well, you better find it.” Ms. Estes complied. The incident with Coles made Ms. Estes “a little nervous” and concerned “because there were other people in the bank” and because “you never know what could happen” in such a situation.

On Saturday, November 25, 2000, at approximately 10:00 a.m., Coles walked into the same branch of the bank, the name of which had changed from First National to Allfirst. Coles approached teller Janice Hall, who “welcomed him to Allfirst.” Standing silent, Coles handed her a money market withdrawal form that had not been filled out. Ms. Hall “immediately felt something was bad.” She turned the form over, and on the back was written, she recalled, “Put the money in the bag, no bait money, and no one will get hurt.” Ms. Hall’s “heart started beating really fast, and [she] got very nervous.” Coles then put a bag on the counter, into which Ms. Hall placed “about $1,545.” Ms. Hall tried to “push the note over,” but Coles “put his hand over” and said, “Give me back [the note].” She did so “as quickly as [she] could.” Coles took the bag of money and left the bank. Ms. Hall related that the incident “was the scariest moment of [her] life.” ¹¹⁸ About two weeks later, on December 9, 2000, Coles entered the same branch of Allfirst bank, walked over to a counter where he picked up some forms, and got in line to speak to a teller, Bernice Swann.

Ms. Swann was “a little suspicious about what [Coles] was doing” because Coles was “writing as he was standing in line.” Ms. Swann’s suspicions were confirmed when Coles handed her a bag and a note, which was written on the back of a retail account transfer form. The note commanded, “Put all the money in the bag no alarms thank you.” Ms. Swann complied by placing $1,070 into the bag, because from her side of the teller counter, “you can’t see a person,” and she therefore “had no idea what [Coles] had.” Indeed, a photograph from the bank’s security camera entered into evidence shows Coles wearing long pants, a jacket, knit cap, and dark sunglasses. Moreover, there were “other people in the bank, so you comply. You do what you’re supposed to do.” After Ms. Swann placed the money in the bag, Coles left the bank.

During the incident, he never said anything to Ms. Swann and did not ask her to return the note. On December 16, 2000, police arrested Coles based upon information provided by his girlfriend that he had been involved in the three bank robberies. He later was charged in a nine-count criminal information filed in the Circuit Court for Baltimore County. The first three counts concerned the January 23, 1999 bank incident, charging Coles with robbery and second degree assault 1 of Anna Estes, and misdemeanor ¹¹⁹ theft. 2 Counts four through six involved the November 25, 2000 bank incident, charging robbery and second degree assault of Janice Hall, and felony theft. 3 Counts seven through nine covered the December 9, 2000 bank incident, charging robbery and second degree assault of Bernice Swann and felony theft.

At the conclusion of a pretrial motions hearing on June 6, 2001, Coles waived his right to a jury trial. Thereafter, on June 7, 2001, the Honorable Lawrence R. Daniels of the Circuit Court for Baltimore County heard testimony from the three tellers, and reviewed documentary evidence, including two security camera photographs and the note given to Ms. Swann on December 9, 2000. At the close of the State’s case, Coles moved for judgment of acquittal, arguing, among other things, that the State had failed to prove sufficient facts to meet the intimidation element of robbery. After the Circuit Court denied Coles’s motion, Coles testified that he was the individual who stood “in front of’ the tellers on January 23, 1999, November 25, 2000, and December 9, 2000.

Coles maintained, however, that he was physically and mentally abused by his girlfriend and was, ¹²⁰ therefore, acting under duress. At the close of his case, Coles renewed his motion for judgment of acquittal, which was denied by the Circuit Court. Judge Daniels, in adjudicating Coles’s guilt stated: “His confession admits that he committed these offenses, and therefore, the Court finds him guilty as charged of the three bank robberies. With regard to the lesser-included offenses of assault and theft, they merge into the robberies for sentencing purposes.” Judge Daniels then sentenced Coles: [O]n Count 1, the sentence of the Court is ten years to the Department of Corrections, that sentence being imposed under Article 27, Section 643 4 being a minimum mandatory sentence.

As to the second robbery count, which is Count 4, the robbery of Janice Hall, the Court imposes a consecutive sentence of ten years to the Department of Corrections. Judge Daniels further declared: On the third robbery count which is Count 7, the Court imposes a consecutive sentence of ten years. The Court will suspend nine of those 10 years, so the total time to be served is 21 years. When you get out of jail, you’ll be on five years’ supervised probation, with the other nine years hanging over your head. ¹²¹ Coles appealed to the Court of Special Appeals, which affirmed in an unreported opinion.

We granted certiorari, Coles v. State, 370 Md. 268 , 805 A.2d 265 (2002), to address the following issues, which we have rephrased: 5 I. Whether the evidence in the instant case was sufficient to support Coles’s convictions for three counts of robbery.

II

Whether the evidence was sufficient to support Cole’s convictions for three counts of second degree assault.

III

Whether the Circuit Court failed to pronounce a specific verdict on the counts of second degree assault, misdemeanor theft, and felony theft, and if so, whether that failure required an acquittal on those counts. We hold that under the circumstances of this case, the evidence was sufficient for a fact finder to conclude beyond a reasonable doubt that Coles was guilty of three counts of robbery. In light of our holding, we need not, and do not, address Coles’s second and third contentions.

II

Standard of Review The standard for determining whether evidence was sufficient to support a criminal conviction is “whether any rational trier of fact could have found the essential elements of the crime! ] beyond a reasonable doubt.” Moye v. State, 369 Md. 2, 12 , 796 A.2d 821, 827 (2002) (citing State v. Albrecht, 336 Md. 475, 478-79 , 649 A.2d 336, 337 (1994)). In applying that standard, we “view the evidence in the light most favor ¹²² able to the prosecution” and give “due regard to the [fact finder’s] findings of facts, its resolution of conflicting evidence, and, significantly, its opportunity to observe and assess the credibility of witnesses.” Id. (quoting McDonald v. State, 347 Md. 452, 474 , 701 A.2d 675, 685 (1997)). We do not, however, “undertake a review of the record that would amount to a retrial of the case.” Winder v. State, 362 Md. 275, 325 , 765 A.2d 97 . 362 Md. 275 , 765 A.2d 97, 124 (2001).

Indeed, our task is not to determine whether we believe that the evidence at trial established guilt beyond a reasonable doubt. State v. Pagotto, 361 Md. 528, 534 , 762 A.2d 97, 100 (2000). Rather, our review is limited to determining whether “any rational trier of fact” could have made that determination. Id.

(quoting Jackson v. Virginia, 443 U.S. 307, 319 , 99 S.Ct. 2781, 2789 , 61 L.Ed.2d 560, 573 (1979)).

III

Discussion When Coles stole $120 from Ms. Estes at the Dundalk branch of First National Bank on January 23,1999, robbery, a common law crime, had a statutorily prescribed penalty including “imprisonment for not more than 15 years.” Maryland Code, Art. 27 § 486 (1957, 1996 Repl.Vol.); 6 By the time Coles stole money from Ms. Hall and Ms. Swann at the same branch of Allfirst on November 25, 2000 and December 9, 2000, the Maryland Legislature had codified the crime of robbery by repealing former Section 486 and replacing it with a revised Section 486. 7 See Laws of Maryland 2000, Ch. 288 ¹²³ § 1. The revised Section 486 retains robbery’s judicially determined meaning, and adds, “obtaining the service of another by force or threat of force.” Md.Code, Art. 27 § 486 (1957, 1996 Repl.Vol., 2000 Supp.) The Committee to Revise Article 27, 8 in the Note annotating Art. 27, § 486, identified the “judicially determined meaning” of robbery referred to in that Section as “the felonious taking and carrying away of the personal property of another, from his person or in his presence, by violence, or by putting him in fear,” see Darby v. State, 3 Md.App. 407, 413 , 239 A.2d 584, 588 , cert. denied, 251 Md. 748 (1968); State v. Gover, 267 Md. 602, 606 , 298 A.2d 378, 380-81 (1973), and as “larceny from the person, accompanied by violence or putting in fear.” See Tyler v. State, 5 Md.App. 158, 162 , 245 A.2d 592, 595 (1968), cert. denied, 252 Md. 733 (1969). Finally, the Note observed that “[ujnder the common law, robbery is a specific intent crime that requires intent to permanently deprive the owner of property.” See Gover, 267 Md. at 606 , 298 A.2d at 381 ; Hadder v. State, 238 Md. 341, 355 , 209 A.2d 70, 78 (1965). The hallmark of robbery, which distinguishes it from theft, is the presence of force or threat of force, the latter of which also is referred to as intimidation.

Spitzinger v. State, 340 Md. 114, 121 , 665 A.2d 685, 688 (1995) (“Robbery requires a taking of property of any value whatsoever which is accomplished by violence or putting in fear.”) Former Chief Judge Robert Murphy, writing for the Court in West v. State, explained that the distinction between robbery and theft, based on the presence of force or threat of force, “has ancient origins in the common law.” 312 Md. 197, 203 , 539 A.2d 231, ¹²⁴ 233 (1988). The distinction was described in William Hawkins’ 1724 Treatise of the Pleas of the Crown, in the chapter entitled “Of Robbery”: Sect. 2, Larceny from the Person of a Man either puts him in Fear, and then it is called Robbery; or does not put him in Fear, and then it is called barely, Larceny from the person. Sect. 3. Robbery is a felonious and violent Taking away from the Person of another, Goods or Money to any Value, putting him in Fear.

Id. at 203 , 539 A.2d at 233 . As evidenced by at least one authority, Maryland, as early as 1826, adhered to the ancient common law distinction. John Latrobe, in Justice’s Practice under the Laws of Maryland, published in 1826, stated in Section 1252: Open and violent larceny from the person, or robbery, is the felonious and forcible taking from the person of another, of goods or money to any value, by violence, or putting him in fear. The putting in fear distinguishes it from other larcenies. 4 Blac.

Comm. 242. Id. at 203 , 539 A.2d at 233-34 . In 1776 Maryland adopted its first Constitution, which provided in its Declaration of Rights that the “inhabitants of Maryland are entitled to the Common Law of England ... subject, nevertheless, to the revision of, and amendment or repeal by, the Legislature of this State.” This provision remained in all subsequent Constitutions of Maryland. Conklin v. Schillinger, 255 Md. 50, 58 , 257 A.2d 187, 191 (1969).

Adhering to that Constitutional mandate, our decisions have consistently recognized the common law distinction between theft and robbery based on the presence of force or threat of force. See, e.g., Ledvinka v. Home Ins. Co., 139 Md. 434, 439 , 115 A. 596, 598 (1921)(“ ‘Robbery’ is larceny from the person, accompanied by violence or by putting in fear....”); Lee v. State, 238 Md. 224 , 208 A.2d 375, 376 (1965)(same); West, 312 Md. at 202 , 539 A.2d at 233 (defining robbery, in part, as “larceny from the person, accompanied by violence or putting in fear”); Bowman v. State, 314 Md. 725, 730 , 552 A.2d 1303, ¹²⁵ 1304 (1989)(same); Spitzinger, 340 Md. at 123 n. 2, 665 A.2d at 689 n. 2 (same); Ball v. State, 347 Md. 156, 182 , 699 A.2d 1170, 1183 (1997)(same). The October 1, 2000 codification of the crime of robbery did not modify the common law meaning of the offense, other than by declaring that: “(1) [A] robbery conviction requires proof of intent to deprive another of property; or (2) Robbery includes obtaining the service of another by force or threat of force.” Md.Code, Art. 27 § 486(b)(1) and (2)(1957, 1996 Repl.Vol., 2000 Supp.).

In West, we addressed “the degree of violence or putting in fear that is requisite” for a robbery conviction. 312 Md. at 203 , 539 A.2d at 234 . The victim in that case was leaving a drug store in Baltimore City when “a man just snatched [the victim’s] purse from [her] hand and ... ran.” Id. at 199 , 539 A.2d at 232 . The victim did not notice that her purse was gone until after the snatcher began to run from her. Id.

We concluded that the evidence was not sufficient to prove that the purse was taken with violence, or that the victim was put in fear. Id. at 207 , 539 A.2d at 235 . In so doing, we adopted the view that “the mere snatching or sudden taking away of the property from the person of another does not constitute sufficient force, violence, or putting in fear to support a robbery conviction.” Id. at 206 , 539 A.2d at 235 . We then reasoned that the victim was not even “aware she had been dispossessed of the purse until she saw the purse snatcher running from her.” Id. at 207 , 539 A.2d at 235 .

Actual force is not at issue in the instant case; rather, the question is whether there was sufficient evidence of intimidation, or placing in fear, to support Coles’s convictions for robbery. In support of his contention that the evidence was insufficient, Coles claims that the “assault component” of robbery was not proven beyond a reasonable doubt because there was no evidence that he “specifically intended to frighten the tellers,” that he threatened them with “a specific and immediate battery,” or that he had an “apparent ability to carry out” such a threat. Coles claims that our decision in Dixon v. State, 302 Md. 447 , 488 A.2d 962 (1985), illustrates ¹²⁶ the requisite amount and quality of evidence necessary to prove those elements of robbery and claims that the evidence in the instant case falls short of that standard. Coles’s contentions are without merit.

In Dixon , we stated that when “intimidation or putting in fear” is the “gravamen of the action,” the following “test” is to be applied in determining the sufficiency of the evidence: [A]ny attempt to apply the least force to the person of another constitutes an assault. The attempt is made whenever there is any action or conduct reasonably tending to create the apprehension in another that the person engaged therein is about to apply such force to him. It is sufficient that there is an apparent intention to inflict a battery and an apparent ability to carry out such intention. Id. at 458-59 , 488 A.2d at 967 (quoting Lyles v. State, 10 Md.App. 265, 267 , 269 A.2d 178, 179 (1970)).

The defendant in Dixon challenged the sufficiency of the evidence to support his conviction for assault with intent to rob. 9 Id. at 450 , 488 A.2d at 963 . A female cashier was in her booth alone at a gas station in Baltimore City one evening when Dixon approached and failed to respond to inquiries from the cashier. Id. at 451- 52, 488 A.2d at 963-64 . The cashier “thought something was going on” because Dixon had a “cold, hard look ... in his eyes” and was concerned because Dixon had a newspaper folded underneath his right arm, which led her to believe that he had a weapon, although she never saw a weapon.

Id. at 452- 53, 488 A.2d at 964-65 . Dixon placed a note into the drawer that received customer items, which read, “I want all your money and hurry.” Id. at 452 , 488 A.2d at 964 . The cashier pushed an alarm, dropped to the floor, and waited for the police to come. Id. at 452 , 488 A.2d at 964 .

Dixon fled without any money. Id. To gauge whether proof of intention to inflict a battery is governed by a subjective standard, i.e. from the viewpoint of ¹²⁷ the teller regarding his or her fear, or by an objective standard, i.e. from the circumstances of the robbery, and to determine whether the display of a weapon is necessary to show intimidation or putting in fear, we reviewed cases decided by the federal courts under 18 U.S.C. §