Dyson v. State

DEBORAH S. EYLER, J. A jury in the Circuit Court for Howard County convicted Lawrence Lambert Dyson, Jr., the appellant, on one count of felony theft scheme of property valued over $500 and on three counts of misdemeanor theft of property valued at less than ³⁶⁷ $500. The court sentenced the appellant to a 10-year term for the felony theft scheme conviction and to 18-month consecutive terms for each misdemeanor conviction, all to be served concurrently to the felony theft scheme sentence. On appeal, the appellant presents two questions for review: “I. Did the trial court err by admitting a hearsay statement which unduly prejudiced appellant?

II

Did the trial court err by failing to merge the convictions and sentences?” For the reasons set forth below, we shall affirm the judgments of the circuit court. FACTS AND PROCEEDINGS On December 20, 2002, the appellant, a woman named “Tam,” a woman named “Ebony,” and a man whose name is not disclosed in the record drove to Michelle Wetmore’s apartment in Columbia. 1 Ebony remained in the car while the other three met with Wetmore inside her apartment. Tam asked Wetmore if she “wanted to make some money.” Wet-more responded, “Yeah,” and left with the three. They all got in the car with Ebony, with the unnamed man at the wheel, and drove to the Patuxent Medical Group (“PMG”) building, also in Columbia, where they parked nearby.

The appellant entered the lobby of the building. He took the elevator to the third floor and then walked down a hallway to the gynecology department, and entered. He walked through the gynecology department, entering the offices of three gynecology department employees: Janet Carletto, Victoria Hendrickson, and Kimberly Guldan. Carletto’s and Hendrickson’s offices were next to each other, and Guldan’s office was one office over from Hendrickson’s.

All three women were away from their offices at lunch, but had left their purses behind. Carletto’s purse was behind a chair, by the edge of her desk; Hendrickson’s purse was ³⁶⁸ halfway underneath her desk, behind another bag; and Guldan’s purse was in a drawer in her desk. The appellant went into each woman’s purse and took credit cards. He took five credit cards from Carletto, three credit cards from Hendrickson, and one credit card from Guldan.

About ten minutes after first entering the gynecology department, the appellant returned to the elevator, rode back down to the first floor lobby, and returned to the car. The appellant showed the stolen credit cards to the occupants of the car. The group drove to a gas station, where the appellant tested the credit cards at the pump to confirm that they were valid. The group then drove to various retail stores around Howard County, including Target stores in Columbia and Ellicott City, a Wal-mart in Ellicott City, a CompUSA in Columbia, and a Rack Room Shoes in Columbia.

The appellant gave Wetmore two of the credit cards, and told her to “just go get Play Station II’s.” Before using the cards, Wet-more checked the signatures so she could imitate them. Wet-more, Tam, and Ebony used the credit cards the appellant gave them to make purchases at the stores. The appellant did not enter the stores. At the Target in Ellicott City, he assisted in loading the store purchases into the car.

The three women charged a total of $3,257.62 in merchandise using Carletto’s credit cards and $1,249.35 in merchandise using Hendrickson’s credit card. 2 After making the purchases, the group drove to a pawn shop in Baltimore City. The appellant pawned the items ³⁶⁹ purchased at the retail stores for cash. He gave Wetmore $300 of the cash he received for the items. The police were able to identify Wetmore after viewing a surveillance tape from one of the retail stores.

She was arrested on January 8, 2003. She gave oral and written statements to Howard County Police Officer James Daly, implicating the appellant, whom she knew by the nickname “the rabbit.” A statement of 31 charges was filed against the appellant on January 11, 2003. Before trial, the State nol prossed all but four charges against the appellant. Three of the remaining charges were for misdemeanor theft under Md.Code (2002), section 7-104 of the Criminal Law Article (“CL”), one each for stealing a credit card (or cards) from each victim.

The fourth remaining charge was for felony theft scheme, under CL sections 7-103 and 7-104, for, “pursuant to one scheme and continuing course of conduct, stealing] MERCHANDISE of TARGET, SHOE RACK, COMP USA, [and] WALMART having a value of $500 or greater[.]” As noted, the appellant was convicted on all four charges. We shall recite additional facts as pertinent to our discussion of the questions presented. DISCUSSION I. At trial, the State called Wetmore as a witness. She testified that she knew the appellant from having “d[one] a credit card scheme with him.” They had been introduced by a mutual friend.

Wetmore recounted the events of December 20, 2002, as we have recited them above. On cross-examination, defense counsel questioned Wetmore about the written statement she had given to Officer Daly: ³⁷⁰ Q: Can I read to you what you wrote. You essentially told the officers that [the appellant] is the one who was responsible for all of this, correct? A: Yes.

Q: And, what you wrote was a black male picks me up in the mornings, he goes around to different office buildings and goes in and makes an attempt to steal credit card[s] and brings them to the car. Then goes to check them at the gas station and that’s to see if they work. And then goes to the stores and purchases thing[s] and take to the pawn shop, and then splits money with me on the profit we make. You didn’t once in [here] say that you’re the one in the store, making the charges, correct?

A: Okay. Q: You took no responsibility whatsoever for these offenses, correct? A: Yes, I did. I just didn’t write it down.

Q: You never said I am the one who purchases things? A: No, I didn’t. Q: You are the one who purchases the things, correct? A: Not in the statement.

I told them verbally, I didn’t tell them in the statement. What’s the point? Q: But you didn’t tell the truth right here. You’re the one who purchases the items?

A: Okay. On redirect examination, the prosecutor sought to have Wetmore clarify her responses to defense counsel’s questions: Q. When Ofc. Daly spoke to you, did he hand you that piece of paper and just ask you to give a statement? Was that the first thing he did?

A. No. He talked to me first. Q. So you actually gave him an oral statement before you wrote something down? A. Yes. ³⁷¹ Q. And, did you admit your involvement in this credit card scheme? A. Yes, I did.

Q. And, in fact, in this written statement you admitted that you guys split the profit, right? A. Yes. Officer Daly also was called as a State’s witness. On direct examination, he testified that, after Wetmore was arrested, he “presented the evidence to her that was pretty substantial against her in the case[,]” and she “admitted she was involved.” Officer Daly’s testimony continued as follows: Q: And what, if anything, did she say as to her involvement?

A: Well, she explained what had ... been going on with her involvement with this case was that she was approached by a black male who— [DEFENSE COUNSEL]: Your Honor, I’m going to object at this point to hearsay. THE COURT: All right, why don’t you approach here. (Counsel approached the Bench and the following ensued.) THE COURT: Well, it is hearsay. You phrased the issue that badgered, induced, promised, threatened, to get a statement.

So I think that opens the door to the State to present the entire nature of how the statement was given. So I’ll overrule the objection. (Counsel returned to trial table and the proceedings continued in open court.) [PROSECUTOR]: Ofc. Daly, you started to tell us about what Ms. Wetmore indicated as to what happened.

Will you continue? A: Yes, she informed me that she was approached by a black male who had an idea, for lack of a better word, so that she could make some money. That she was having some financial difficulty. She informed me that she would be picked up by this black male sometime in ³⁷² the morning, after her husband left.

I think that’s what she indicated. Her husband wasn’t aware of the situation, so it would always be around the same time in the morning, she’d get picked up. At which time, the black male would drive to any of several different apartment, office type buildings. At which points the black male would go into [an] office building and come back out with credit cards.

I think most if not all the time belonging to females. Q: And, what did she indicate happened next? A: Then the black male would give her the credit cards at which point she would, they would drive to stores and she would go in and make purchases on the credit cards. Some of the items the black male was specific as to what he wanted purchased and then I believe she was also allowed to buy some of her own items.

Q: And what, if anything, else did she indicate as to what happened? A: Well, then they would take the items that that Black male had requested which [were] mostly electronic type items including Playstation II’s. At which point the black man would drive to unknown pawn shop in Baltimore City and would go in and then come back out with cash and they would split the cash. (Emphasis added.) The appellant contends the trial court erred in permitting Officer Daly to testify about Wetmore’s oral statement.

He argues that Wetmore’s statement was inadmissible hearsay that “d[id] not become admissible by virtue of the fact that defense counsel had previously asked about the manner in which the statement was given.” The appellant further argues that the error in allowing Officer Daly to testify about Wetmore’s oral statement was not harmless because Wet-more’s credibility was a “seminal issue” in the case and the evidence tended to bolster her testimony. ³⁷³ The State responds that Officer Daly’s testimony properly was admitted, although not for the reason given by the trial judge. Officer Daly’s testimony about what Wetmore told him about her involvement in the theft scheme was a prior consistent statement admissible to rehabilitate Wetmore, under Rule 5-616(c)(2). It is ordinarily within the sound discretion of the trial court to determine the admissibility of evidence. Fenner v. State, 381 Md. 1, 25 , 846 A.2d 1020 (2004); Blair v. State, 130 Md.App. 571, 592 , 747 A.2d 702 (2000).

We will not disturb a trial court’s evidentiary ruling absent error or a clear abuse of discretion. Young v. State, 370 Md. 686, 720 , 806 A.2d 233 (2002); Behrel v. State, 151 Md.App. 64, 126 , 823 A.2d 696 (2003). Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Md. Rule 5-801.

As this definition makes plain, whether an out-of-court statement is hearsay depends on the purpose for which it is offered at trial. Stewart v. State, 342 Md. 230 , 236 n. 1, 674 A.2d 944 (1996); Hardison v. State, 118 Md.App. 225, 234 , 702 A.2d 444 (1997). Subject to certain well-established exceptions, a hearsay statement offered to prove its truth is inadmissible. Md. Rule 5-802.

Under Rule 5-616(c)(2), a prior consistent statement is admissible to rehabilitate a witness as long as the fact that the witness has made a consistent statement detracts from impeachment of the witness. Holmes v. State, 350 Md. 412, 427 , 712 A.2d 554 (1998); Blair, supra, 130 Md.App. at 601 , 747 A.2d 702 . Prior consistent statements are not offered for their truth, and therefore are not hearsay. Holmes, supra, 350 Md. at 427 , 712 A.2d 554 .

Holmes, supra, is instructive. In that case, Ellouise Thompson testified on direct examination that she had witnessed the defendant shoot and kill her roommate. She also testified that she initially was reluctant to give any statement ³⁷⁴ to the police because the defendant knew she had witnessed the murder and she was frightened for her safety. On cross-examination, defense counsel impeached Thompson with a written statement she had given the police on the day of the shooting, in which she claimed not to have seen the assailant.

On redirect examination, the prosecutor introduced, over objection, a second statement Thompson had given to the police two days later in which she identified the defendant as the assailant. The Court of Appeals held that Thompson’s second, consistent statement was admissible for rehabilitative purposes, under Rule 5 — 616(c)(2), because it “detracted from the impeachment by rebutting her initial inconsistent' statement to police that she did not see who shot [her roommate].” 350 Md. at 428 , 712 A.2d 554 . Furthermore, the second statement “put to perspective that [Thompson’s] inconsistent statement was made because she was frightened of what [the defendant] would do to her.” Id. In the present case, the critical question to Officer Daly, and the only one objected to, was “what, if anything, did [Wetmore] say as to her involvement” in the theft scheme?

Officer Daly’s testimony about Wetmore’s oral statement to him was not being offered to prove the truth of the matter asserted — that is, Wetmore’s involvement in the credit card scheme. Rather, the statement was being offered to rehabilitate Wetmore’s credibility. Wetmore had testified on direct examination that she told Officer Daly of her participation in the theft scheme. The defense had impeached her on this point by showing that her written statement to Officer Daly did not say that she had participated in the scheme.

Officer Daly’s testimony was offered to detract from the impeachment by showing that Wetmore had told Officer Daly that she had participated in the scheme. Accordingly, Officer Daly’s testimony about Wetmore’s oral statement was not hearsay. The trial court concluded that Officer Daly’s testimony about Wetmore’s statement was hearsay, but that it fell into an exception to the hearsay rule. As discussed above, Officer ³⁷⁵ Daly’s testimony was not hearsay.

Thus, to the extent that the trial judge erred, it was in finding that the statement was hearsay. However, the trial judge’s evidentiary ruling was correct, that there was no basis for the objection and that the testimony was admissible. Accordingly, we find no abuse of discretion.

II

The appellant contends the trial court “erred by failing to merge the convictions and sentences.” He makes two assignments of error. First, he argues that the trial court erred by not merging his three misdemeanor theft convictions into one conviction, under the single larceny doctrine. Second, he argues that the trial court erred by not merging the misdemeanor theft offenses into the felony theft scheme offense for sentencing because “they were part of the same theft scheme.” We disagree with both arguments. (a) The “single larceny doctrine” was a part of Maryland common law before 1978, when the consolidated theft statute was enacted, and remains part of Maryland’s theft law.

State v. White, 348 Md. 179, 195-96 , 702 A.2d 1263 (1997). Under the doctrine, the stealing of several items at the same time, belonging to different people, ordinarily constitutes one offense. Id. at 183 , 702 A.2d 1263 ; State v. Warren, 77 Md. 121, 122-23 , 26 A. 500 (1893). See also Govostis v. State, 74 Md.App. 457, 471 , 538 A.2d 338 (1988) (holding, in a different application of the doctrine, that the stealing of several articles, at the same time, from the same person, is one theft).

The rationale behind the single larceny doctrine is that “the act of taking is one continuous act or transaction, and since the gist of the offense is the felonious taking of property, the legal quality of the act is not affected by the fact that the property stolen belonged to different persons.” White, supra, 348 Md. at 183 , 702 A.2d 1263 (quoting Daniel H. White, Single or Separate Larceny Predicated upon Stealing Proper ³⁷⁶ ty from Different Owners at the Same Time, 37 A.L.R.3d 1407 , 1409 (1971)). The single larceny doctrine is premised on the notion that the defendant’s conduct, of taking several items of property at one time, constitutes a single criminal act. That, in turn, rests on the notion that the separate takings are all part of a single larcenous scheme and a continuous larcenous act, and, when the evidence suffices to establish that fact, directly or by inference, most courts have had no problem applying the doctrine. White, supra, 348 Md. at 188-89 , 702 A.2d 1263 .

The Court in White held that the defendant in that case committed a single larceny when he entered an empty school office shared by four teachers and took a small television set belonging to one teacher and a canvas bag belonging to another teacher. Id. at 196 , 702 A.2d 1263 . The Court in White observed that defining the single larceny doctrine is easier than determining when it applies. “[Although ‘[t]he principles are easily stated and understood ... application of the doctrine becomes problematic when applied to the infinite variety of circumstances that can arise.’ ” Id. at 188 , 702 A.2d 1263 (quoting Richardson v. Commonwealth, 25 Va.App. 491, 495 , 489 S.E.2d 697 (1997)). When the facts show directly or by inference that “the defendant’s conduct, of taking several items of property at one time, constitutes a single criminal