Emory v. State

MQYLAN, Judge. The appellants, James Mitchell Emory and Roger Lee Emory, were convicted by an Anne Arundel County jury of nine and seven counts, respectively, charging drug kingpin conspiracy and related offenses. On this appeal, they contend: 1. that the trial court erred in admitting “other crimes” evidence; 2. that the evidence was not legally sufficient to sustain James Emory’s conviction for importation or Roger Emo ⁵⁹⁶ ry’s conviction for possession with intent to distribute fifty pounds of marijuana; 3. that the trial court erred in denying the appellants’ motion to suppress physical evidence seized pursuant to unconstitutionally issued search warrants; 4. that the trial court erred in denying the appellants’ motion to suppress keys found in James Emory’s Ford Explorer; 5. that the trial court abused its discretion in denying the appellants’ motion for a mistrial in that the prosecutor’s statements, in rebuttal closing argument, made the jury believe that the Emorys must be guilty because they did not testify, in violation of both the Fifth Amendment privilege against compelled self-incrimination and the Maryland common law; and 6. that six sentences must be vacated, either under the Blockberger required evidence test or under merger by legislative intent. We hold that the trial court erred in admitting “other crimes” evidence.

Under the circumstances, the appellants’ fifth and sixth contentions are moot. It behooves us, however, to consider the second contention alleging the legal insufficiency of the evidence to support several of the convictions because of the possible double jeopardy ramifications such a holding might have should the State choose to retry the case. In the exercise of our discretion, we choose also to address the appellants’ third and fourth contentions because a retrial on the merits would not necessitate a rehearing on or reconsideration of the suppression motions if we should decide that the initial rulings were not incorrect. “Other Crimes” Evidence The appellants were charged with having conspired 1) with each other; 2) with three other named parties, to wit, Philip Dulany, Lawrence Leiben, and George Thomas Johnson; and 3) with persons known and unknown to violate the anti-narcotics laws in a variety of ways. It was charged in the ⁵⁹⁷ indictment, moreover, that all of the offenses alleged to have been committed by both appellants occurred during the seventeen-month period that ran from June 1,1991 through October 29, 1992.

It was on October 29,1992 that officers of the Anne Arundel County Police Department culminated their ten-month investigation. They obtained and executed twenty-one search and seizure warrants and arrested eleven individuals, including the appellants, for drug kingpin conspiracy and related offenses. The jury trial of the appellants was spread over twelve trial days. Thirty-two witnesses were called for the prosecution and seventy-six exhibits were offered in evidence.

A key witness against the appellants was Lawrence Leiben, a codefendant and co-conspirator who had entered into a plea arrangement with the State. He supplied significant inculpatory information with respect to both appellants and their activities during the seventeen-month period charged in the indictment. The critical issue now before us involves Lawrence Leiben’s testimony with respect to various narcotiesrelated activities engaged in by the appellants at various times over the course of a twenty-year period preceding the commencement of the seventeen-month period charged in the indictment. Both by way of a motion in limine and by subsequent repeated objections during the course of Lawrence Leiben’s testimony, the appellants amply preserved their challenge to this line of testimony.

The State argued that it was necessary to have Leiben’s testimony go back over the course of twenty years in order “to show the relationship between these parties almost their entire adult lives.” The appellants offered to stipulate that both of them had known Leiben socially since the late 1960’s, that Leiben and James Emory had been members of the same Army Reserve unit, and that Leiben and both appellants had once worked on the same job. The State was nonetheless permitted to have Leiben recount in detail his earlier involvement with the appellants in the narcotics traffic. Indeed, a ⁵⁹⁸ foil thirty-eight pages of transcript of Leiben’s direct examination is devoted to these pre-1991 activities. Leiben testified that he met James Emory in the late 1960’s when they served together in the same Army Reserve unit.

Through James, Leiben became acquainted with Robert Emory. He testified that at some time in the early 1970’s, he, James Emory, and Philip Dulany together bought a pound of maryuana, split it up three ways, and then sold their respective shares to make approximately $100 of profit apiece. He further testified that James Emory then began selling marijuana on a more regular basis. At some time thereafter, Leiben began purchasing small amounts of marijuana from James Emory and then resold it for profit.

He concluded that Roger Emory was James Emory’s partner because “they were always together and they had the money in it together and Mitch [James Emory] told me they were partners.” Most of Leiben’s knowledge about the drug-related activities of the appellants in the early 1970’s was based simply on what had been told him by James Emory. Leiben testified that James Emory had told him that the father of the two appellants “had put some money- up and that they [the father and both appellants] took a trip to Texas or Texas and Mexico and made a connection there and bought some marijuana and started selling it.” Leiben was questioned about whether the appellants, during the early 1970’s, had developed “any other sources.” He responded that there was “a fellow named Bud,” with a last name that sounded German. James Emory confided in him that Bud was a large dealer who dealt in “Mexican Pot.” Leiben indicated that his own purchases from James Emory were approximately “twenty pounds at a time,” although on one occasion it might have been as much as “a bale of forty or fifty.” He indicated that this arrangement that started in the 1970’s continued “off and on until we were arrested.” Because of that arrest, Leiben left Baltimore in approximately 1980 or 1981 and went to Florida. He remained in Florida, selling ⁵⁹⁹ automobiles, for three-and-a-half years.

During that time, he had no connection with either appellant. After that approximate three-and-a-half-year sojourn in Florida, Leiben returned to Maryland (he believed it was in 1984) because he “just wanted to live back in Maryland again.” Initially, he resumed a legitimate relationship with James Emory, going to work for him at the Brandon Contracting Company at sometime “in ’84 or ’85.” The Brandon Contracting Company was owned by James Emory and was involved in the sale of home improvements. Roger Emory also worked for Brandon Contracting. At sometime while Leiben was working at Brandon Construction, he was approached, at the small shop he owned and where he slept, by James Emory, with Roger Emory possibly in attendance.

Leiben was shown some “Thai Weed” or Thailand Pot, a very high potency and very expensive form of marijuana and asked if he wanted to sell some of it. Leiben agreed to do so and subsequently purchased the Thai Weed from James Emory in lots of one or two kilos. He explained that a kilo is 2.2 pounds and that the purchase price of the Thai Weed was between $1,800 and $2,200 a pound. Leiben would then sell it to his own customers in smaller units of quarter-pounds or ounces.

That business relationship “lasted probably for ... two to three months and then it ran out.” During the life of the relationship, there were “maybe two or three deliveries,” involving a total of “probably eight kilos ... nine kilos.” Leiben’s only sure recollection was that it was delivered to him by James Emory. Whether Roger Emory was ever involved in a delivery was by no means certain. There was no testimony with respect to the involvement of any other persons in the Thai Weed operation and there was no testimony with respect to the source of the Thai Weed. It was just at the time that the two-to-three-month involvement in the purchase of Thai Weed was coming to an end that the second phase of criminal dealing between Leiben and James Emory also came to an end.

The reason for the termination of the relationship was that James Emory be ⁶⁰⁰ lieved that Leiben had failed to make an $8,000 payment that was due to Emory. For his part, Leiben allegedly believed that he had paid the $8,000 and that James Emory had neglected to record or to remember the payment. “So, basically, we parted company at that time.” To the best of Leiben’s recollection, that second parting of the ways occurred at sometime in 1986. Leiben’s employment with Brandon Construction was also terminated. When asked initially whether he, after his return from Florida, resumed any illegal activities with James Emory, Leiben first indicated that he “fooled around a little bit with cocaine in small sales.” It was extremely difficult to get Leiben to place the time of certain of his activities within the decade, let alone within the year.

Under some probing, however, he subsequently placed his cocaine-related activities with James Emory into the time period between the second breakup (1986 or even 1987) and the final reconciliation (1991). He testified that the involvement in the cocaine trade “only lasted probably for a few weeks to a month.” Leiben would purchase cocaine from James Emory in quarterpound quantities for approximately $1,100 an ounce. After several such purchases, however, that involvement came to an end because James Emory decided to call a halt to the activity. ‘Well, he wasn’t really involved with that. He just didn’t like doing it and didn’t like using it and just stopped doing it.” With respect to the brief trafficking in cocaine, there was no testimony linking Roger Emory or Philip Dulany or any other person to that activity.

Nor was any reference made to the source of the cocaine. There was no suggestion made as to what relevance that brief foray into cocaine trafficking might have had to the crimes for which the appellants were tried. After the “split up” over the arguable $8,000 default by Leiben, there was an approximate five-year break in the relationship between Leiben and the Emory brothers with respect to his purchasing of marijuana from them. In June, 1991, however, Leiben was invited to a birthday party honoring James Emory at Emory’s new home on North Shore.

James Emory and Leiben “more or less made up” and “talked ⁶⁰¹ about maybe going back into business again together.” The business relationship involving the sale of marijuana did resume and all of Leiben’s testimony from that point on concerned criminal activity during the life of the conspiracy charged in the indictment, the seventeen-month period from June 1, 1991 through October 29, 1992. All of Leiben’s testimony as to prior activities, on the other hand, very definitely involved instance after instance, stretching out over two decades, not only of “other bad acts,” generally, but of “other crimes,” specifically, perpetrated by James Emory and, to a lesser extent, by Roger Emory. The issue before us is whether the trial judge erred in ruling such “other crimes” evidence admissible. A. A Rule of Presumptive Exclusion The starting proposition with respect to “other crimes” evidence is that it should be excluded.

That rule, of course, is subject to numerous exceptions but, pending proof of entitlement to one of the exceptions, the initial presumption is in favor of exclusion. Judge Adkins stated the general rule in State v. Faulkner, 314 Md. 630, 633 , 552 A.2d 896 (1989): We have often addressed the admissibility of “other crimes” evidence. Generally, “evidence of a defendant’s prior criminal acts may not be introduced to prove that he is guilty of the offense for which he is on trial.” Evidence of other crimes may tend to confuse the jurors, predispose them to a belief in the defendant’s guilt, or prejudice their minds against the defendant, (citations omitted). The presumptively exclusionary focus of the rule was well explained by Judge McAuliffe in Harris v. State, 324 Md. 490, 500-501 , 597 A.2d 956 (1991): By stating the rule in exclusionary form—evidence of other bad acts is generally not admissible—followed by an exception for those instances in which the evidence 1) has special relevance, i.e. is substantially relevant to some contested issue in the case and is not offered simply to prove criminal character, and 2) has probative force that substan ⁶⁰² tially outweighs its potential for unfair prejudice, the focus is correct, and the burden is where it belongs.... ...

The exclusionary form of the rule clearly serves to remind the bench and bar that, unlike most other evidence, this evidence carries with it heavy baggage that must be closely scrutinized before admissibility is warranted. Finally, by employing the exclusionary approach, it is immediately clear that the party offering the evidence has a hurdle to overcome and must shoulder the burden of demonstrating relevance other than criminal character, as well as the burden of demonstrating that the probative value substantially outweighs the potential for unfair prejudice. B. Is the “Other Crimes” Evidence Substantially Relevant? Notwithstanding the presumptive exclusion of “other crimes” evidence, such evidence may be admitted, subject to clearing two additional hurdles, if it is “substantially relevant to prove some contested issue” in the case.

As State v. Faulkner explained, 314 Md. at 634 , 552 A.2d 896 : Evidence of other crimes may be admitted, however, if it is substantially relevant to some contested issue in the case and if it is not offered to prove the defendant’s guilt based on propensity to commit crime or his character as a criminal. (emphasis supplied). See also Ross v. State, 276 Md. 664, 669 , 350 A.2d 680 (1976). Harris v. State, 324 Md. at 500 , 597 A.2d 956 , used the term “special relevance” as synonymous with “substantial relevance to some contested issue.” That initial hurdle, let it be carefully noted, is not simply that the “other crimes” evidence be technically or minimally relevant to some formal issue in the case other than criminal propensity, but further 1) that the relevance be substantial and further still 2) that it be with respect to a genuinely contested issue in the case.

In L. McLain, Maryland Evidence, § 404.5 at 354 (1987), this aspect of relevance is discussed: ⁶⁰³ There are, however, several caveats regarding limited admissibility of evidence of prior misconduct for some such other purpose. First, the evidence may not be used merely as a ruse to accomplish the prohibited objective. The evidence must be strongly probative of an issue other than propensity which is truly a significant issue in the case. This requirement may mean that the prosecution will be unable to present character evidence until it puts on its case in rebuttal, (footnotes omitted) (emphasis supplied).

C. McCormick, Evidence, § 190 at 564-565 (E. Cleary ed., 3d ed. 1984), addresses the same requirement: [T]he connection between the evidence and the permissible purpose should be clear, and the issue on which the other crimes evidence is said to bear should be the subject of a genuine controversy. For example, if the prosecution maintains that the other crime reveals defendant’s guilty state of mind, then his intent must be disputed. Likewise, if the accused does not deny performing the acts charged, the exceptions pertaining to identification are unavailing, (footnotes omitted) (emphasis supplied). Dean McCormick cites two cases in support of his statement that the issue on which “other crimes” evidence is offered must be the subject of a genuine controversy.

One is People v. Golochowicz, 413 Mich. 298 , 319 N.W.2d 518, 524 (1982), where the Michigan Supreme Court held: [E]vidence of other misconduct is not admissible in this state to negate mistake or accident, to prove motive, to show intent, to demonstrate the defendant’s plan, scheme or system, or to prove his identity, unless one or more of these factors are genuinely in issue—not “in issue” in the sense that criminal intent, identity, [etc.] are nearly always in issue to some greater or lesser degree in every case, but in issue or “material” in the sense that they are genuinely controverted matters, (emphasis supplied). The other cited authority is the English decision of Thompson v. The King, [1918] App.Cas. 221, 232, where the appellate court held: ⁶⁰⁴ The mere theory that a plea of not guilty puts everything material in issue is not enough____ The prosecution cannot credit the accused with fancy [defenses] in order to rebut them at the outset with some damning piece of prejudice. See also J.B. Weinstein and M.A. Berger, 2 Weinstein’s Evidence § 404[09], at 49-50 (1980) (“Evidence directed to a category other than propensity is not, however, admissible unless this issue is actually being controverted.”) 1. The Standard of Appellate Review The “other crimes” evidence testified to by Lawrence Leiben in this case failed to pass the first part of Faulkner’s three-pronged test in that it was not “substantially relevant to some contested issue in the case,” 314 Md. at 634 , 552 A.2d 896 .

In terms of the standard of appellate review, this is a legal “call” as to which the trial judge is either right or wrong. There is no deference extended, as there would be with respect to primary or ancillary fact finding (where the judge is affirmed unless the fact finding is clearly erroneous) or with respect to discretionary rulings (where the judge is affirmed unless the ruling is a clear abuse of discretion). Faulkner on this point was clear, 314 Md. at 634 , 552 A.2d 896 , “That is a legal determination and does not involve any exercise of discretion.” 2. The Issues, Even If Material, Were Not Genuinely Disputed As we run the list of acceptable material issues as to which “other crimes” evidence is sometimes deemed to be logically relevant or probative, we see that the “other crimes” evidence here is twice bereft of evidentiary legitimacy.

Not only is the evidence irrelevant as proof of the arguable issues as to which it might have been offered, but the issues themselves were not genuinely disputed. This trial, though hard fought, did not involve much by way of disputes on the ultimate factual merits. The disputes, moreover, were not of the type that “other crimes” evidence might help to resolve. ⁶⁰⁵ The defense consisted primarily of procedural counter-punching. It challenged, in a number of regards, the constitutionality of the search for and seizure of the physical evidence.

It challenged the neutrality of the judge who issued the search warrants. It challenged the professional behavior of the chief prosecutor. It challenged the telephonic evidence. It challenged the State’s compliance with discovery requests.

It challenged proof of the actus reus of importing, as opposed to possessing locally, on the part of James Emory. It challenged proof of the actus reus of possessing fifty pounds, rather than merely forty-five pounds, of marijuana on the part of Roger Emory. The only thing the defense did not do was to assert factual innocence. For some medical research facility it might be otherwise but, for these appellants, there was no innocent explanation for possessing hundreds of pounds of marijuana in storage lockers in Anne Arundel County.

They did not, except in the formal sense of entering a not-guilty plea, assert actual innocence. They attacked the constitutionality and the legality of the investigation. They attacked the propriety of the trial and pretrial process. These were all issues, of course, as to which “other crimes” evidence could have no pertinence. 3.

Motive Every catalogue of acceptable purposes for “other crimes” evidence begins with the classic five memorialized by the mnemonic acronym “MIMIC”—1) Motive, 2) Intent, 3) absence of Mistake, 4) Identity, and 5) Common scheme or plan. Faulkner, 314 Md. at 634 , 552 A.2d 896 ; Ross v. State, 276 Md. 664, 669-670 , 350 A.2d 680 (1976). Motive is not a formal element of a crime but, rather, a circumstantial fact that sometimes may help to prove guilt. 1 ⁶⁰⁶ “Which of the weekend guests had a motive to poison the baroness?” 2 Weinstein’s Evidence, § 401[14] describes how “other crimes” evidence may sometimes be used to establish motive: Evidence of another crime has been admitted to show the likelihood of defendant having committed the charged crime because he needed money, sex, goods to sell, was filled "with hostility, sought to conceal a previous crime, or to escape after its commission. See Veney v. State, 251 Md. 182, 199-200 , 246 A.2d 568 (1968) (evidence of armed robbery and of shooting of one police officer admissible to show motive for murder of second police officer who tried to arrest him).

See also Martin v. State, 40 Md.App. 248 , 389 A.2d 1374 (1978) (evidence that defendants had escaped from prison, to show motive for stealing car of kidnapping and sex offense victim, should not have been admitted because motive was clear and unequivocal and was not an issue in the case); Jackson v. State, 87 Md.App. 475, 485-487 , 590 A.2d 177 (1991); Stancil v. State, 78 Md.App. 376, 383 , 553 A.2d 268 (1989). There is, of course, a great deal of arbitrariness that goes into the categorizing of admissible “other crimes” evidence into discrete kinds or types of relevance. Showing that a defendant had a motive to commit a crime simply helps to establish that he had the requisite intent to commit the crime. Showing which suspect had a motive to commit a crime, moreover, also helps to establish the identity of the criminal.

Furthermore, the demonstrated possession of a motive helps to show that the criminal act was neither .a mistake nor an accident. Material purposes significantly overlap. In any event, Leiben’s recounting of criminal activities, primarily on the part of James Emory, dating back largely to the 1970’s did not supply a motive for the criminal conspiracy running from June 1991 through October 1992. The “other ⁶⁰⁷ crimes” evidence in this case was simply not relevant in proving a criminal motive on the part of either appellant.

The presence or absence of a motive, moreover, was not a genuinely contested issue in this case. 4. Intent Except for the trial of a malum prohibitum, intent is a formal element in every criminal trial. 2 Weinstein’s Evidence, § 404[12] gives illustrative examples of when intent is genuinely in issue and when evidence of prior crimes is relevant to prove intent: Consequently, evidence of another crime which tends to undermine defendant’s innocent explanation for his act will be admitted; the oftener a like act has been done, the less probable it is that it could have been done innocently.... A claim of intoxication raises an issue of intent, and so, according to some courts, does a claim of entrapment. And see Anaweck v. State, 63 Md.App. 239 , 492 A.2d 658 (1985).

On the issue of whether either of the appellants had the criminal intent to deal in marijuana in 1991 and 1992, however, it was not permissible to show that James Emory engaged in similar crimes, presumably intentionally, twenty years or even five years earlier. That would be a classic forbidden instance of proving present intent by demonstrating a criminal propensity. In Harris v. State, 324 Md. 490 , 597 A.2d 956 (1991), a case where the intent to distribute was “very much an issue,” Id. at 501 , 597 A.2d 956 , the Court of Appeals held that it was improper, in an effort to prove present intent, to use even actual convictions for possession with intent to distribute that were two and one-half years old. “Unless we are to hold, as some courts apparently have, that proof of intent may always be shown by proof of propensity or disposition, we cannot square the admission of this evidence with the policy decisions previously made and reflected in the rule of evidence we have approved.” Id. at 501 , 597 A.2d 956 . ⁶⁰⁸ In Ross v. State, 276 Md. 664 , 350 A.2d 680 (1976), the State introduced, much as in the case before us, evidence of narcotics sales by the defendant at an unspecified time as much as fifteen years earlier. In reversing the conviction, Judge Levine commented on the irrelevance of the “other crimes” evidence on the issue of intent: Although specific intent to distribute heroin was an essential element of the crime of which appellant was convicted, the evidence that at some unspecified time or times during the period “from 1958 up to the date in question, February 6, 1973,” the informer and the accused had “work[ed] together selling narcotics” no more showed such intent than it established any of the other exceptions to the general rule. 276 Md. at 671 , 350 A.2d 680 .

Even if the law were otherwise, however, with respect to how to prove present intent, the further impediment to the use of “other crimes” evidence in this regard was that the presence or absence of criminal intent was never an issue in the trial of this case. There was no conceivable innocent explanation for what the appellants were proved to have done and they at least had the good grace, if nothing else, not to insult the court with fantasies. One does not unintentionally store hundreds of pounds of what one knows to be marijuana in storage lockers. The “other crimes” evidence in this case was not relevant in proving a criminal intent on the part of either appellant.

The presence or absence of a criminal intent, moreover, was not a genuinely contested issue in this case. 5. Absence of Mistake or Accident The analysis is the same with respect to absence of mistake or accident. The appellants never argued that their apparent involvement with marijuana was somehow an inadvertent and bizarre mistake. There was, therefore, no claim, proffer, or theory of mistake that needed to be negated. ⁶⁰⁹ L. McLain, Maryland Evidence § 404.12, at 368, makes very clear the nature of the situation or problem contemplated by this exception: If the defendant admits that he or she took an action, but claims to have done so unintentionally or by mistake, so that allegations of, for example, forgery, fraud, embezzlement, or malice are unfounded, the prosecution may offer evidence of his or her similar prior wrongs, acts, or crimes.

This use of the evidence as proof of absence of mistake is merely the obverse of proof of intent. Similarly, the defendant may claim the harm he or she is alleged to have caused was not at his or her hands, but was the result of an independent accident. Evidence of prior similar acts is then admissible to show lack of mistake or accident. For example, if a defendant charged with child abuse contends that the child’s injuries were caused by an accidental fall, evidence of prior beatings of the child by the defendant will be admissible, (footnotes omitted).

See, e.g., Hoes v. State, 35 Md.App. 61 , 368 A.2d 1080 (1977) (evidence that defendant had on two prior occasions, four and five years earlier, shot his girlfriend was admissible to negate his claim, when charged with shooting his girlfriend, that his shotgun had discharged accidentally); Dyson v. State, 6 Md.App. 453, 456 , 251 A.2d 606 (1969) (in prosecution for murder and child abuse where defendant claimed that injuries were accidental, photographs showing prior abuse of the same victim were admissible to negate claim of accident). In McKinney v. State, 82 Md.App. 111 , 570 A.2d 360 (1990), the defendant was asked, on cross-examination, whether he could have touched his alleged sexual assault victim “accidentally or incidentally.” He answered, “It’s possible.” In reversing, we held that that was not enough to constitute a genuine assertion of a defense based on mistake or accident. Judge Bloom explained, 82 Md.App. at 125 , 570 A.2d 360 : Appellant never asserted a defense of accident or mistake; the only disputed issue in each case was whether there had been any touching of any ... intimate parts. The combined ⁶¹⁰ testimony of the three alleged victims might very well have tended to disprove any defense based on accident or mistake, but since no such defense was asserted, there was no material fact to be established by the “other crimes” evidence.

(emphasis supplied). The “other crimes” evidence in this case was not relevant in proving the absence of mistake or accident with respect to either appellant. The question of a mistake or an accident, moreover, was not a genuinely contested issue in this case. 6. Identity The leading analysis of the identity exception is that in State v. Faulkner, 314 Md. 630, 637-640 , 552 A.2d 896 (1989).

Judge Adkins looked initially at the threshold requirement of relevance, observing that, [Ejvidence of other offenses may be received under the identity exception if it shows any of the following: (a) the defendant’s presence at the scene or in the locality of the crime on trial; (b) that the defendant was a member of an organization whose purpose was to commit crimes similar to the one on trial; (c) the defendant’s identity from a handwriting exemplar, “mug shot,” or fingerprint record from a prior arrest, or his identity through a ballistics test; (d) the defendant’s identity from a remark made by him; (e) the defendant’s prior theft of a gun, car or other object used in the offense on trial; (f) that the defendant was found in possession of articles taken from the victim of the crime on trial; (g) that the defendant had on another occasion used the same alias or the same confederate as was used by the perpetrator of the present crime; ⁶¹¹ (h) that a peculiar modus operandi used by the defendant on another occasion was used by the perpetrator of the crime on trial; (i) that on another occasion the defendant was wearing the clothing worn by or was using certain objects used by the perpetrator of the crime at the time it was committed; (j) that the witness’ view of the defendant at the other crime enabled him to identify the defendant as the person who committed the crime on trial. Id. at 637-638 , 552 A.2d 896 . Illustrative cases dealing generally with the identity exception are Simms v. State, 39 Md. App. 658, 663-666, 388 A.2d 141 (1978) and Mollar v. State, 25 Md.App. 291 , 333 A.2d 625 (1975). Although Ross v. State, 276 Md. 664, 670 , 350 A.2d 680 (1976), characterizes it as an exception in its own right, it is generally recognized that the so-called “peculiar modus operandi ” phenomenon is simply a subset of the “identity” exception.

It is, indeed, so classified by State v. Faulkner, 314 Md. 630, 637-638 , 552 A.2d 896 (1989). C. McCormick, Evidence, § 190 at 559-560 (E. Cleary ed., 3d ed. 1984), describes this modality for proving identity: To prove other crimes by the accused so nearly identical in method as to earmark them as the handiwork of the accused. Much more is demanded than the mere repeated commission of crimes of the same class, such as repeated murders, robberies or rapes. The pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature, (footnotes omitted).

Professor McLain not only characterizes proof of a peculiar or unique modus operandi or signature as an aspect of the identity exception but also gives a good example of how it might be used: [I]f on the prior occasions [the defendant] had used a unique way of defeating a burglar alarm, and the same method was ⁶¹² used by the perpetrator of the crime with which he is charged, the evidence may be admitted as proof of identity. L. McLain, Maryland Evidence § 404.11, at 367. The leading Maryland cases dealing with a peculiar modus operandi or a signature offense are McKnight v. State, 280 Md. 604, 612-614 , 375 A.2d 551 (1977), a joinder/severance case, (signature or unique modus operandi not established); State v. Brown, 327 Md. 81, 87 , 607 A.2d 923 (1992) (signature or unique modus operandi not established) and State v. Faulkner, 314 Md. 630, 638-640 , 552 A.2d 896 (1989) (signature or unique modus operandi was established). James Emory’s sales of marijuana to Lawrence Leiben did not establish, in any of the prescribed ways, James Emory’s identity as one of those involved in the charged criminal activity of 1991 and 1992.

Identity, moreover, was not remotely a contested issue. In L. McLain, Maryland Evidence, § 404(11), at 366, Professor McLain illustrates a way in which identity might be genuinely disputed: “When identity is in issue, as when a criminal defendant ..., raises an alibi defense, proof of other crimes ... committed by the defendant may be admitted.” In Tichnell v. State, 287 Md. 695, 699 , 713 n. 5, 415 A.2d 830 (1980), prior crimes evidence was deemed inadmissible to prove identity because the defendant had admitted being at the scene and shooting the victim and identity, therefore, was not a genuinely contested issue. In this case, the defense offered no alibi or a claim of misidentification or functional equivalent thereof. The “other crimes” evidence in this case was not relevant in proving the identity of either appellant.

Identity, moreover, was not a genuinely contested issue in this case. 7. Common Scheme or Plan L. McLain, Maryland Evidence, § 404.9 at 361-362, is instructive with respect to the “common scheme or plan” exception: ⁶¹³ Wrongful acts planned and committed together may be proved in order to show a continuing plan or common scheme.... With regard to proof of “common scheme”, the Court of Appeals has suggested that there must be evidence that the crimes involved were conceived of by the defendant as part of one grand plan; the commission of each is merely a step toward the realization of that goal. The fact that the crimes are similar to each other or occurred close in time to each other is insufficient, (footnotes omitted).

In State v. Jones, 284 Md. 232 , 395 A.2d 1182 (1979), a case from the partially overlapping field of joinder/severance law, the Court of Appeals held that upon the trial of the defendants for the armed robbery of a liquor store, the fact that they had committed two similar holdups within the preceding two and one-half hours was not admissible as proof of a common scheme or plan, absent evidence that all three crimes had been planned together. The Court observed: In order to gain admission under this exception it is necessary that the crimes “so relate to each other that proof of one tends to establish the other.” In other words, to establish the existence of a common scheme or plan, it is necessary to prove that the various acts constituting the offenses naturally relate to one another by time, location, circumstances and parties so as to give rise to the conclusion that they are several stages of a continuing transaction. The State argues that the record establishes a pattern of criminal conduct within a period of two and one-half hours by the same parties in the same geographical area and that this evidence suffices to show a plan under the exception. We note first of all, that mere proximity in time and location within which several offenses may be committed does not necessarily make one offense intertwine with the others.

Immediateness and site are not determinative. Nor does the fact that the offenses were committed by the same persons qualify them to be admitted under the exception, (citations omitted). ⁶¹⁴ Id. at 243 , 395 A.2d 1182 . Perhaps the definitive analysis of the exception was that made by Judge Digges in Cross v. State, 282 Md. 468, 475-476 , 386 A.2d 757 (1978): As a general rule, in order to gain the admission of evidence of other criminal acts under the common scheme or plan exception it is necessary that the crimes, including the crime charged, so relate to each other that proof of one tends to establish the other. Moreover, there must be “not merely a similarity in the results but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations.

The concurrence of common features under this exception, however, must be more than simply a manner of operation, which is possessed to some extent by most criminal recidivists. A method of operation is not, by itself, a common scheme, but merely a repetitive pattern. Thus, evidence of other crimes can be introduced under the common scheme exception only when the relationship between the time, place, circumstances, or parties involved in the crimes is such that the uncharged crime or crimes “support the inference that there exists a single inseparable plan encompassing both the charged and uncharged crimes, typically, but not exclusively, embracing uncharged crimes committed in order to effect the primary crime for which the accused has been indicted.” (emphasis in original) (citations omitted) (emphasis supplied). The “other crimes” evidence in this case was not relevant in proving a common scheme or plan.

The existence of a common scheme or plan, moreover, was not a genuinely contested issue in this case. 8. Sexual Propensity The exception whereby “other crimes” evidence may be admitted to show that the defendant has a passion or propensity for illicit sexual relations with the particular victim concerned in the crime on trial, Berger v. State, 179 Md. 410, 414 , 20 A.2d 146 (1941); Ross v. State, 276 Md. 664, 670 , 350 A.2d 680 (1976); Vogel v. State, 315 Md. 458, 465 , 554 A.2d 1231 ⁶¹⁵ (1989); Acuna v. State, 332 Md. 65, 72-76 , 629 A.2d 1233 (1993), obviously has no applicability to the case under review. 9. Close Connection It is permissible to use “other crimes” evidence where several offenses are so connected in point of time or circumstances that one cannot be fully shown without proving the other. Ross v. State, 276 Md. 664, 670 , 350 A.2d 680 (1976); Tichnell v. State, 287 Md. 695, 712 , 415 A.2d 830 (1980) (a case from the partially overlapping field of severance/joinder law).

There is a significant overlap of, or at least significant confusion between, this exception and that involving a common scheme or plan. To the extent to which there is a definitional integrity to the distinction between the two, the notion of a common scheme or plan seems to suggest a functional or progressive connection as one crime triggers or, at least, sets the stage for the next. In the alternative, the several crimes are similar effects proceeding from a common cause. In either event, there is some sort of a cause-and-effect relationship at work.

When, by contrast, the case law speaks, as does for example Ross v. State, of an exception for crimes so connected in point of time or circumstances that one cannot be fully shown without proving the other, the contemplated connection seems to be more narrative than functional. The unities of time, space, and circumstance make it difficult to fragment too finely the narrative of a criminal episode even when there is no necessary cause-and-effect relationship between its parts. If the “other crimes” evidence is relevant in any event, it does seem foolish to anguish over which label it depends upon for its admissibility. This, however, may be one of the costs attendant upon our conceptualization of the “other crimes” evidence rule as exclusionary rather than inclusionary.

Harris v. State, 324 Md. 490 , 597 A.2d 956 (1991). In Tichnell v. State, 287 Md. 695, 712 , 415 A.2d 830 (1980), Chief Judge Murphy described this category: ⁶¹⁶ One such exception permits the admission of evidence of other crimes when the several offenses are so connected or blended in point of time or circumstances that they form one transaction, and cannot be fully shown or explained without proving the other. In Presley v. State, 224 Md. 550, 558 , 168 A.2d 510 (1961), evidence of anal penetration was admitted in the trial of a rape case because it was closely related in time and was part of the larger criminal episode. Presley did, somewhat dubiously, categorize the evidence as showing a “common scheme of sexual gratification.” See also Tinnen v. State, 67 Md.App. 93, 99 , 506 A.2d 656 (1986) (crimes were part of one “continuous transaction”); Hicks v. State, 3 Md.App. 225 , 238 A.2d 577 (1968) (evidence that the defendant took a second little girl upstairs and told her to take off her bathing suit, minutes after he had committed statutory rape of prosecutrix, was admissible as part of what the court quaintly characterized as the “res gestae”).

In a joinder/severance context, we held in Green v. State, 81 Md.App. 747 , 569 A.2d 741 (1990) that the defendant was properly tried jointly for two gas station robberies committed •within half an hour. We observed, “The episodes were so intertwined that proof of involvement in either would have been admissible to help prove criminal agency with respect to the other.” Id. at 751 , 569 A.2d 741 . There are in that passage also overtones of the identity exception. As Dean McCormick has observed, however, the lists of exceptions thus far compiled are “neither mutually exclusive nor collectively exhaustive.” C. McCormick, Evidence § 190 at 558 (E. Cleary ed., 3d ed. 1984).

In the case before us, there is no such close connection between the charged crimes of 1991 and 1992 and the “other crimes” of the 1970’s and 1980’s that the story of the former could not have been fully shown without reference to the latter. It is in this regard, perhaps, that the State made its claim that a showing of the relationship between the appellants and ⁶¹⁷ Lawrence Leiben during the preceding twenty years was necessary to explain the willingness of the appellants to trust him in 1991 and 1992. The appellants were willing to stipulate, however, that there had been an essentially life-long social relationship and friendship among the three. The criminal nature of the earlier phase of that relationship was by no means critical to an understanding of or acceptance of Lawrence Leiben’s involvement in the conspiracy of 1991 or 1992.

The State’s insistence on the logical imperative of telling the whole story of the relationship between Lawrence Leiben and the appellants is very akin to its similar insistence on recounting the entire course of an investigation, which we discounted in Zemo v. State, 101 Md.App. 303 , 646 A.2d 1050 (1994): The jury, of course, has no need to know the course of an investigation unless it has some direct bearing on guilt or innocence. That an event occurs in the course of a criminal investigation does not, ipso facto, establish its relevance. A valid criminal trial might well consist of nothing more than evidence of the corpus delicti of a crime on the East Coast on January 1 followed by the confession of the perpetrator on the West Coast on December 31. What the East Coast investigators did in the intervening year could be completely immaterial, just as could the intervening history of the perpetrator....

The State’s theory that the course of an investigation somehow must be shown, pertinent or not, assumes that a criminal trial should unfold upon the stage of the courtroom ■with the unbroken linear quality of a silent movie. Modern audiences, however, both in the jury box and out, are capable of “leaping o’er time and space” as relevance and admissibility dictate. The intelligibility, the narrative flow, and the persuasiveness of the testimony of Lawrence Leiben would not have been noticeably impaired had he first landed on Planet Earth in June of 1991. His pre-1991 history was of minuscule significance and we really didn’t need to know what he had been doing before that time. ⁶¹⁸ 10.

Opportunity State v. Faulkner, 314 Md. 630, 634 , 552 A.2d 896 (1989); State v. Edison, 318 Md. 541, 547 , 569 A.2d 657 (1990), a joinder/severance case; Harris v. State, 324 Md. 490 , 501 n. 3, 597 A.2d 956 (1991); and Solomon v. State, 101 Md.App. 331 , 646 A.2d 1064 (1994), all classify “Opportunity” as a distinct exception to the exclusion of “other crimes” evidence. C. McCormick, Evidence § 190 at 563 (E. Cleary ed., 3d ed. 1984) at 563, describes it as evidence tending to establish opportunity, in the sense of access to or presence at the scene of the crime or in the sense of possessing distinctive or unusual skills or abilities employed in the commission of the crime charged. McCormick cites United States v. Barrett, 539 F.2d 244 (1st Cir.1976) (evidence admissible to show familiarity with sophisticated means of neutralizing burglar alarms) and United States v. DeJohn, 638 F.2d 1048, 1053 (7th Cir.1981) (earlier thefts from YMCA mailbox “highly