Freeman v. State

Darryl Edward Freeman v. State of Maryland, No. 24, September Term, 2023. Opinion by Hotten, J. EVIDENCE – MARYLAND RULES 5-701 AND 5-702 – DISTINGUISHING BETWEEN LAY AND EXPERT TESTIMONY The Supreme Court of Maryland held that testimony by a police officer who opined regarding the definition of the slang term “lick” did not fall under Maryland Rule 5-702. Ragland v. State and its progeny instruct that a witness must be qualified as an expert under Maryland Rule 5-702 when their testimony is beyond the “ken” of a layperson. 385 Md. 706 , 870 A.2d 609 (2005). Opining to the colloquial definition of the slang term “lick” or “sweet licks” is not beyond the “ken” of a layperson.

Compare State v. Blackwell, 408 Md. 677, 681 , 971 A.2d 296, 298 (2009) (holding that testimony concerning a scientific test fell under Maryland Rule 5-702), with State v. Galicia, 479 Md. 341 , 392–94, 278 A.3d 131 , 160–61 (2022) (holding that testimony on “Google’s location history tracking” service was within the “ken” of a layperson given the prevalence of cell phones in society). Circuit Court for Charles County Case No.: C-08-CR-20-000179 IN THE SUPREME COURT Argued: April 9, 2024 OF MARYLAND No. 24 September Term, 2023 _________________________________ DARRYL EDWARD FREEMAN v. STATE OF MARYLAND _________________________________ Fader, C.J., Watts, *Hotten, Booth, Biran, Gould, Eaves, JJ. _________________________________ Opinion by Hotten, J. Watts, J., dissents. _________________________________ Filed: July 16, 2024 *Hotten, J., now a Senior Justice, participated in the hearing and conference of Pursuant to the Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State this case while an active member of this Government Article) this document is authentic. Court. After being recalled pursuant to 2025.02.25 Maryland Constitution, Article IV, § 3A, she also participated in the decision and 13:40:50 -05'00' adoption of the majority opinion.

Gregory Hilton, Clerk Petitioner, Darryl Edward Freeman, was charged in the Circuit Court for Charles County with fourteen counts 1 surrounding the killing of Mr. Bradley Brown. During the direct examination of Detective Corey Wimberly (“Det. Wimberly”) at trial, the State sought to elicit an opinion regarding the meaning of the slang terms “lick” and “sweet licks.” Petitioner objected, arguing that Det. Wimberly had not been offered as an expert relative to defining those terms.

The circuit court overruled Petitioner’s objection and allowed Det. Wimberly to testify that “lick” meant a robbery and “sweet lick” meant “an individual [who] is . . . easy to rob.” 2 Petitioner was convicted on all counts, nine of which were later merged with related counts for purposes of sentencing. Petitioner appealed to the Appellate Court of Maryland, which affirmed. Freeman v. State, 259 Md. App. 212 , 257, 303 A.3d 62 , 88 (2023).

The Appellate Court held that the opinion of Det. Wimberly was expert in nature under Maryland Rule 5-702, but that the circuit court “implicitly” accepted Det. Wimberly as an expert witness in overruling Petitioner’s objection. Id. at 235–36, 303 A.3d at 75–76. 1 Petitioner was charged with murder in the first-degree under the theories of premeditation and felony murder, assault in the first-degree, armed robbery, three counts of use of a firearm in the commission of a crime of violence, robbery, theft, possession of a firearm by a person under the age of twenty-one, transport of a handgun on public roads, and four counts of conspiracy to commit assault and robbery. 2 Aside from relevant excerpts from the transcripts, we will refer to the term “lick” as including “lick” and “sweet licks” for convenience.

Both terms were defined at the same time and asserted to have similar definitions. We granted certiorari on six questions, which we rephrase 3 into one for the sake of clarity: In the instant case, did the circuit court properly permit Det. Wimberly to opine that the word “lick” means “a robbery,” either as an expert or as a lay witness? We hold that the circuit court properly permitted Det.

Wimberly to opine regarding the definition of “lick” in his capacity as a lay witness. 3 Petitioner presented four questions: 1. Where a witness is not disclosed in discovery or offered at trial as an expert, does Maryland law recognize a theory that such a witness may “implicitly” be found to be an expert and therefore provide opinion testimony? 2. Assuming that such an implicit finding is valid, by what means does an opposing party determine the field or area of the witness’s alleged expertise? 3. In the instant case, was [Det.] Wimberly, who was not disclosed or offered as an expert, properly permitted to testify that in his opinion, the words “lick” and “sweet licks,” referred to in text messages between [Petitioner] and his alleged co-conspirators, meant “robbery” and “robbery of an easy target,” respectively? 4.

Regardless of whether the trial judge makes an implicit or explicit finding, does the State’s noncompliance with [Maryland] Rule 4-263(d)(8) preclude the calling of an expert witness? In its cross-petition, the State presented two additional questions: [1.] May a lay witness testify to the meaning of a slang term with which the witness is familiar? [2.] Did the [circuit] court in this case properly permit Det[. Wimberly] to give lay opinion testimony that the word “lick” means “a robbery”? 2 FACTUAL AND PROCEDURAL BACKGROUND Factual Background Both Petitioner and the State adopt the facts as outlined by the Appellate Court. We shall do the same.

According to the Appellate Court: At around 7:00 p.m. on February 18, 2020, first responders arrived at 3117 Warehouse Landing Road, Bryans Road, Maryland, and found [Mr.] Bradley Brown lying on the driveway, outside near the garage. As would be later determined, [Mr.] Brown sustained two fatal gunshot wounds, one to the chest and the other to his right thigh, and the manner of his death was determined to be a homicide. In brief, the police recovered the victim’s cellphone at the crime scene and found information therein that led them to suspect [Petitioner]. Through text messages on the victim’s and [Petitioner]’s cellphones, the police learned that the victim, [Mr.] Brown, was selling illegal THC vape pens through social media.

At around the same time, and prior to the murder, [Petitioner] was texting his co[-]conspirators and others, and those conversations concerned [Petitioner]’s attempts to obtain handguns and to commit a robbery. On the night of the murder, [Petitioner] was in the company of some of his co[-]conspirators. He was also communicating via Snapchat[4] with the eventual victim, [Mr.] Brown, less than an hour before the murder. It was the State’s theory that [Petitioner] and [Mr.] Brown were discussing an anticipated sale of some of the THC vape pens.

Through eyewitness testimony, corroborated by surveillance video, neighbors recounted that they saw a vehicle park in [Mr.] Brown’s driveway shortly before two gunshots were heard. The evidence at the scene included a loaded, but unfired[,] firearm near the victim’s feet, and THC vape pens in the open trunk of the victim’s car, parked inside the garage. Cellphone location evidence and DNA evidence from a hairbrush found nearby on the ground placed [Petitioner] at the scene. 4 “Snapchat” is “the name of a social media service for sending pictures, messages, and videos that are only available to be seen for a limited amount of time[.]” Snapchat, CAMBRIDGE DICTIONARY, archived at https://perma.cc/W5HD-VBN9. 3 Later that same evening, [Petitioner]’s alleged co[-]conspirators were in possession of THC vape pens, and the State’s theory was that these were the same ones stolen during the robbery and murder. Id. at 221–23, 303 A.3d at 67–68 (footnotes omitted).

Petitioner’s Trial Trial was held between April 26 and May 6, 2021 in the Circuit Court for Charles County. The State called Det. Wimberly to testify regarding his investigation. 5 During the course of examination, the State asked him to define the term “lick,” based on his experience in the Robbery Unit of the Charles County Sheriff’s Department. Petitioner objected, arguing the response would elicit an expert opinion.

The State countered that it provided the requisite notice of the testimony pursuant to this Court’s precedent in Ragland v. State, 385 Md. 706 , 870 A.2d 609 (2005), and State v. Blackwell, 408 Md. 677 , 971 A.2d 296 (2009). Petitioner argued that he was entitled to “specific notice [that Det. Wimberly was] an expert in the field of criminal slang.” The circuit court overruled Petitioner’s objection. Thereafter, the State resumed its questioning of Det.

Wimberly, eliciting that “lick” meant a robbery and “sweet lick” meant “an easy rob[ or] easy to rob.” Following the examination of Det. Wimberly, the State introduced phone messages between Petitioner and a contact named “Ebony[,]” wherein Petitioner asked “[w]here the sweet licks?” Additionally, the State introduced communications between Petitioner and a contact identified as “NIY 5 Relevant excerpts from the transcripts are provided below in the discussion. 4 Creations[,]” in which Petitioner asked “I [expletive] up my money on something good, but ji [sic] left me with couple hunned [sic]. You got some licks I can hit?” At the close of trial, the jury returned a verdict of guilty on the counts of first-degree felony murder, assault in the first-degree, armed robbery, use of a firearm in the commission of a crime of violence for each of the three preceding offenses, robbery, theft, possession of a firearm by a person under the age of twenty-one, transport of a handgun on public roads, and for four conspiracies related to the assault, armed robbery, robbery, and theft offenses. For purposes of sentencing, the circuit court merged the assault, armed robbery, robbery, and theft convictions into first-degree felony murder, merged the use of a firearm convictions, and merged the conspiracy convictions.

Petitioner was sentenced to life for first-degree felony murder, and a combined total of forty-eight years on the other convictions, which were to run concurrently with his life sentence. Petitioner timely appealed to the Appellate Court of Maryland. See generally Freeman, 259 Md. App. 212 , 303 A.3d 62 . Opinion of the Appellate Court of Maryland In a reported decision, the Appellate Court affirmed the convictions. 6 Id. at 257 , 303 A.3d at 88.

Regarding the meaning of “lick,” the Appellate Court held that Det. Wimberly’s opinion was within the realm of expert opinion testimony, but the circuit court had “implicitly” qualified Det. Wimberly as an expert when it overruled Petitioner’s objection. Id. at 234–36, 303 A.3d at 74–75. 6 Although not relevant to this appeal, the Appellate Court merged another count and vacated three conspiracy convictions.

Freeman, 259 Md. App. at 257, 303 A.3d at 88. 5 After reviewing nontraditional dictionaries, 7 the Appellate Court determined that “lick” may have multiple meanings, including “a successful type of theft[,]” a “sudden influx of money,” and “to beat[.]” Id. at 233, 303 A.3d at 74 (cleaned up). The Appellate Court also pointed to Armstead v. State, 342 Md. 38, 56 , 673 A.2d 221, 230 (1996), for the proposition that “words and phrases often have multiple meanings, and ‘the meanings of even common words may be context-dependent[.]’” Id. at 234, 303 A.3d at 74. “Considering these principles,” the Appellate Court held that “[t]he meaning attributed by [Det.] Wimberly may well have been foreign to members of the jury, and it is reasonable to conclude that this interpretation was based on his specialized knowledge, training and experience[]” thus requiring qualification of Det. Wimberly as an expert. Id. at 235, 303 A.3d at 75.

The Appellate Court also considered whether Det. Wimberly had been properly qualified as an expert, concluding that “although the court did not expressly accept [Det.] Wimberly as a qualified expert, he was deemed so, albeit implicitly.” 8 Id. at 236, 303 A.3d 7 The Appellate Court cited “the Urban Dictionary,” a “crowdsourced online dictionary of slang words and phrases[,]” Library of Congress, Urban Dictionary: Define Your World, archived at https://perma.cc/KXG9-3BRY, and “cyberdefintions.com” which describes itself as “contain[ing] thousands of definitions, icons, emojis, and numeronyms that will help you communicate more effectively . . . across the various communications apps and social-media platforms[,]” WELCOME TO CYBER DEFINITIONS!, archived at https://perma.cc/WWS9-69SJ. 8 We note that the circuit court did not so implicitly recognize Det. Wimberly. In discussing Petitioner’s objection, the circuit court questioned “[i]s there such thing as an expert in slang?” The circuit court further expressed, 6 at 75.

The Appellate Court reasoned that the circuit court was not required to “spell out every step in weighing the considerations that culminate in a ruling[]” and, for example, “use ‘magic words’ to find that a waiver of the right to jury trial was made ‘knowingly’ and ‘voluntarily.’” Id., 303 A.3d at 75–76 (citing Nalls v. State, 437 Md. 674, 689 , 89 A.3d 1126, 1134 (2014)). The Appellate Court concluded that, “it is clear that the [circuit] court thought, by simply overruling [Petitioner’s] objection that [Det.] Wimberly was not disclosed as an expert in slang, it was going to admit the detective’s expert opinion[,]” and held that the circuit court did not abuse its discretion. Id. at 237, 303 A.3d at 76. Petitioner filed a petition for a writ of certiorari with this Court and the State submitted a conditional cross-petition, both of which were granted.

Freeman v. State, 486 Md. 228 , 305 A.3d 859 (2023). DISCUSSION Standard of Review It is the general rule that the admissibility of expert testimony is within the sound discretion of the trial judge and will not be disturbed on appeal unless clearly erroneous. In this regard, the trial judge has wide latitude in determining whether expert testimony is sufficiently reliable to be admissible. I understand experts that come in to help juries with issues that are really beyond the pale of the lay person to understand . . . [b]ut like why something happened, or prognosis going forward, that sort of thing that would require expert testimony, does the rule require you to be an expert to come in, for example, to explain what LOL means in text message?

Or licks, or, you know, WYD, or whatever? The circuit court did not believe expertise was needed at all. As discussed below, the circuit court was correct. Consequently, Petitioner’s first and second proposed questions were not properly before us and were not included in the rephrased question. 7 Wilson v. State, 370 Md. 191, 200 , 803 A.2d 1034, 1039 (2002) (citation omitted).

An abuse of discretion is found where the decision is “well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable.” Devincentz v. State, 460 Md. 518, 550 , 191 A.3d 373, 391 (2018) (citation omitted). However, “even with respect to a discretionary matter, a [circuit] court must exercise its discretion in accordance with correct legal standards. We review de novo a trial judge’s decision involving a purely legal question.” Ehrlich v. Perez, 394 Md. 691, 708 , 908 A.2d 1220, 1230 (2006) (quotation marks and citations omitted). The Circuit Court Properly Allowed Det.

Wimberly to Testify as a Lay Witness Petitioner adopts and incorporates the reasoning of the Appellate Court relative to Det. Wimberly’s opinion concerning the meaning of “lick.” Petitioner asserts that we drew a “sharp line” in Ragland requiring satisfaction of Maryland Rule 5-702 9 when an opinion “is based upon specialized knowledge, training, skill, or experience[.]” According to Petitioner, the record demonstrates an “inextricable intertwining of [Det. Wimberly]’s specialized knowledge and experience with his opinion[.]” Petitioner contends that this foundation makes “[t]his case clearly fall[] on the expert side of the Ragland line.” 9 Maryland Rule 5-702 provides that: Expert testimony may be admitted, in the form of an opinion or otherwise, if the court determines that the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue. In making that determination, the court shall determine (1) whether the witness is qualified as an expert by knowledge, skill, experience, training, or education, (2) the appropriateness of the expert testimony on the particular subject, and (3) whether a sufficient factual basis exists to support the expert testimony. 8 The State argues that the circuit court correctly allowed Det.

Wimberly to testify as a lay witness. The State asserts that Maryland courts allow officers to testify as lay witnesses based on their personal knowledge. For example, the State turns to In re Ondrel M., 173 Md. App. 223, 243 , 918 A.2d 543 , 554–55 (2007), where the Appellate Court held that an officer need not be qualified as an expert to testify, based on their experience, to their opinion that a smell was of marijuana. The State compares the present case with In re Ondrel M., arguing that “[a]kin to the odor of marijuana” the detective “need only to have encountered the [term] in daily life to be able to recognize [it].” The State also relies on State v. Galicia, 479 Md. 341 , 278 A.3d 131 (2022), where we held that testimony regarding the function of cell phone applications was permissible lay opinion testimony since the subject was “common knowledge in modern society.” The State argues that “lick,” as a reference to a robbery, is so common a phrase “that it has entered the national lexicon.” The State points to the Urban Dictionary, which defines “lick” as “[a] successful type of theft” and several news articles from Pennsylvania, Florida, and Texas, all within recent months, which note similar definitions.

The State distinguishes Ragland and Blackwell from the present case, arguing Ragland held that the opinions from officers were expert in nature because the State had the officers describe their specialized knowledge of drug recognition and that Blackwell held the opinion was expert in nature because it related to a scientific test. The State argues that “an individual’s testimony giving a common meaning of a slang term, premised on that person’s own personal knowledge and life experiences[]” is not expert testimony under Maryland Rule 5-702. The State cites King v. United States, 9 74 A.3d 678 (D.C. 2013), as an illustrative example, where the District of Columbia Court of Appeals held that an officer acquired knowledge of slang terms from common experiences and could testify regarding those terms as a lay witness. The State also points to Prince v. State, 216 Md. App. 178, 201 , 85 A.3d 334, 348 (2014) to argue that Det.

Wimberly’s tenure as an officer does not render his opinion expert in nature. As we will explain, we agree with the State that Det. Wimberly’s opinion regarding the definition of the slang term “lick” is not expert testimony under Maryland Rule 5-702. Defining the slang term “lick” is not beyond the “ken” of a layperson and does not require expertise for admission.

Accordingly, we hold the circuit court did not abuse its discretion in permitting Det. Wimberly to testify as a lay witness regarding the meaning of “lick.” “Expert testimony is required only when the subject of the inference is so particularly related to some science or profession that is beyond the ken of the average lay[person]; it is not required on matters of which the jurors would be aware by virtue of common knowledge.” Johnson v. State, 457 Md. 513, 530 , 179 A.3d 984, 994 (2018) (cleaned up). “When a court considers whether testimony is beyond the ‘ken’ of the average lay[person], the question is not whether the average person is already knowledgeable about a given subject, but whether it is within the range of perception and understanding.” Galicia, 479 Md. at 394 , 278 A.3d at 161 . Ragland and its progeny reflect the interpretation and application of Maryland Rules 5-701, 10 which concerns lay opinion testimony, and 5-702, which concerns expert 10 Maryland Rule 5-701 provides: 10 testimony, by this Court. In Ragland, we addressed whether the testimony of two officers, regarding whether an observed interaction was a drug transaction, fell under Maryland Rule 5-701 or Maryland Rule 5-702.

Ragland distinguished Maryland Rules 5-701 and 5-702 through review of their federal equivalents, Federal Rules 701 and 702. 385 Md. at 720– 25, 870 A.2d at 617–20. We noted two competing interpretations regarding the scope of permissible lay testimony, and elected to follow the “more narrow” interpretation “as expressed in the amended [Federal Rule] 701.” 11 Id. at 725, 870 A.2d at 620 . Additionally, we agree[d] . . . that by permitting testimony based on specialized knowledge, education, or skill under rules similar to [Maryland] Rule 5[-]701, parties may avoid the notice and discovery requirements of our rules and blur the distinction between the two rules. Accordingly, we will follow the approach as reflected in the 2000 amendment to [Federal Rule] 701 and hold that [Maryland] Rules 5[-]701 and 5[-]702 prohibit the admission as “lay opinion” of testimony based upon specialized knowledge, skill, experience, training or education. [i]f the witness is not testifying as an expert, the witness’s testimony in the form of opinions or inferences is limited to those opinions or inferences which are (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue. 11 In 2005, [a]s amended, [Federal] Rule [701] read[] as follows: “If the witness is not testifying as an expert, the witness’[s] testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness’[s] testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of [Federal] Rule 702.” Ragland, 385 Md. at 722 , 870 A.2d at 618 (emphasis omitted). 11 Id. at 725 , 870 A.2d at 620 (emphasis added) (footnote omitted).

Key to our holding in Ragland was that neither Maryland Rules 5-701 nor 5-702 permitted “the admission as ‘lay opinion’ of testimony based upon specialized knowledge, skill, experience, training or education.” Id., 870 A.2d at 620 . At issue in Ragland was testimony of police officers concerning their recognition of an interaction that they witnessed as being a drug transaction. We concluded that the testimony [could not] be described as lay opinion. These witnesses had devoted considerable time to the study of the drug trade.

They offered their opinions that, among the numerous possible explanations for the events on Northwest Drive, the correct one was that a drug transaction had taken place. The connection between the officers’ training and experience on the one hand, and their opinions on the other, was made explicit by the prosecutor’s questioning. Such testimony should have been admitted only upon a finding that the requirements of [Maryland] Rule 5[-]702 were satisfied. Id. at 726 , 870 A.2d at 620–21.

Thus, the testimony from the officers elucidated the lengths at which they needed to develop their skills in order to opine regarding the observed interaction. Following Ragland, Blackwell considered whether an officer needed to be qualified as an expert to testify about his administration of the Horizontal Gaze Nystagmus (“HGN”) test, a field sobriety test administered upon drunk driving suspects, in which the test administrator looks for signs of inadvertent eye movement while the subject is directed to look in different directions, was expert testimony, “emphasizing that the HGN test is a scientific test[.]” 408 Md. at 681 , 971 A.2d at 298 . “Applying the rule from Ragland[,]” and “emphasizing that the HGN test was a scientific” one, we concluded that an officer’s testimony about [Mr.] Blackwell’s performance on the HGN test constituted expert testimony subject to the strictures of Md. Rule 5-702. [The officer] 12 reported, among other things, that [Mr.] Blackwell had “lack of smooth pursuit” and “distinct nystagmus at maximum deviation” in each eye. This testimony was not based upon [the officer]’s general knowledge as a layperson but upon his specialized knowledge and training. To be sure, the HGN test is a scientific test, and a layperson would not necessarily know that “distinct nystagmus at maximum deviation” is an indicator of drunkenness; nor could a layperson take that measurement with any accuracy or reliability.

Id. at 691 , 971 A.2d at 304 . Blackwell further demonstrated that the nature of the topic informs whether the testimony requires “specialized knowledge and training[]” beyond the “ken” of a layperson. Id., 971 A.2d at 304 . Blackwell stands for the proposition that terminology derived from the application of a scientific test is beyond the “ken” of a layperson, i.e., an average person would not be familiar with the test or how to apply it.

Next, in State v. Payne, this Court held that an officer was required to be qualified as an expert under Maryland Rule 5-702 to testify about the process he used to parse cell phone data. 440 Md. 680, 701 , 104 A.3d 142, 154 (2014). There, an officer used his experience to narrow phone records from “thousands of pages” down to dozens of pages and, eventually, “to a single page document and . . . a quarter-page exhibit[]” with the information pertinent to the matter. Id. at 685 , 104 A.3d at 145 . We considered this a process “beyond the ken of an average person[]” which in turn made the officer’s “conclusions regarding the communication path . . . require[] that he be qualified as an expert witness.” Id. at 700 , 104 A.3d at 154 . “Against the foregoing technical background,” we rejected the State’s assertion “that a layperson with the same phone records and instructions could have determined the location of the cell sites[.]” Id. at 697, 700 , 104 A.3d at 152, 154 (internal quotation marks omitted).

We explained that similar 13 to Blackwell’s scientific test, a phone record “contains a string of data unfamiliar to a layperson and is not decipherable based on ‘personal experience[.]’” Id. at 701 , 104 A.3d at 154 . In 2018, Johnson explored “whether expert testimony is required before a [circuit] court may admit . . . GPS data.” 457 Md. at 530 , 179 A.3d at 993 . We concluded that it did not, id. at 537 , 179 A.3d at 998 , reasoning that “GPS technology is pervasive and generally reliable[]” and that the “technology is also familiar to the general public,” id. at 530–31, 179 A.3d at 994 .

Johnson distinguished Payne, noting that the testimony in Payne concerned cell phone records [which] were “not decipherable” based on common experience because they consisted of a “string of data.” The detective had to rely on “knowledge, skill, experience, training or education” to understand the “technical language of the entries” to hone in on the pertinent entries and eliminate extraneous data. Id. at 534 , 179 A.3d at 996 (citations omitted). “By contrast,” the testimony in Johnson consisted of an officer reading report entries which, given the common understanding of GPS technology, were “decipherable without specialized knowledge.” Id. at 535 , 179 A.3d at 996 . In 2022, Galicia distinguished testimony concerning “Google’s location history tracking” from the cell phone data of that in Payne. 479 Md. at 394 , 278 A.3d at 161 . We concluded that, unlike Payne, testimony regarding the function of Google’s service was “simple recitation” that “used no specialized skill to reformat or translate any of the raw data.” Id. at 393 , 278 A.3d at 161 .

Indeed, we noted that “Google’s location history tracking is a consumer feature designed to be understood and managed by accountholders.” 14 Id. at 394 , 278 A.3d at 161 . The prevalence of cell phone ownership and usage made it “common knowledge” that “a mobile electronic device allows its users to customize the data they share with the manufacturer, the cell phone service provider, and various apps[.]” Id., 278 A.3d at 161 . Ragland and its progeny reinforce that the determinative factor between lay opinion testimony under Maryland Rule 5-701 and expert opinion testimony under Maryland Rule 5-702 is whether the topic and the foundation undergirding it lies within the “ken” of a layperson. The testimony at issue is distinguishable from what we have determined to be expert testimony as illustrated in these cases.

Here, the colloquy between the State and Det. Wimberly proceeded as follows: [The State]: Okay. Now, you indicated that you have been in the robbery unit for nine years now? [Det. Wimberly]: Correct. [The State]: In the course of your training and experience in that particular unit, have you come across the term, “lick”? [Det.

Wimberly]: Yes. [The State]: Okay, and what is lick, in your training and experience? Following objection from Petitioner, which the circuit court overruled, the colloquy continued: [The State]: So anyway, [Det.] Wimberly, over the course of your nine years in the robbery unit, have you had the occasion to come across the term, lick? [Det. Wimberly]: Yes, I have. [The State]: Okay, and what, through your training and experience as law enforcement officer, again, as robbery detective, does that term mean? 15 [Det. Wimberly]: A robbery. [The State]: Okay, and what about in the context of sweet, or something like that? [Det.

Wimberly]: Yeah, [an] individual, they might refer to it as saying lick, meaning an individual is an easy rob, easy to rob. *** [The State]: Okay, and this is, I guess, how often have you come across this, generally speaking, in your times investigating robberies? [Det. Wimberly]: Numerous times[.] Det. Wimberly’s testimony defining the slang term “lick” is distinguishable from the testimony at issue in Blackwell and Payne. Blackwell emphasized the scientific nature of the HGN test, 408 Md. at 681 , 971 A.2d at 298 , and Payne focused on the breadth of technical data being tailored down and interpreted into a consumable format based on experience in the field, 440 Md. at 700–01, 104 A.3d at 154 .

Here, Det. Wimberly offered a nontechnical definition for a colloquial slang term. While we recognize that Det. Wimberly testified that his opinion was derived from his tenure with the robbery unit, and the questions from the Assistant State’s Attorney referenced the officer’s “training and experience,” 12 the nature of his opinion was not reliant on processes or methodology 12 As explained, our decision turns on the nature of the opinion being offered and the discretion afforded circuit court judges who must consider whether to admit it.

The manner in which the State introduced Det. Wimberly is not at issue. We acknowledge that the State, in introducing Det. Wimberly, attempted to have him opine regarding the definition of “lick,” through the veneer of expertise.

Maryland Rule 5-702 requires the circuit court consider whether an offered witness “is qualified as an expert by knowledge, skill, experience, training, or education, . . . the appropriateness of the expert testimony on the particular subject, and . . . whether a sufficient factual basis exists to support the expert 16 testimony.” Prior to attempting to elicit the definition of “lick,” the State participated in the following colloquy with Det. Wimberly, [The State]: How long have you been with the Sheriff’s office? [Det. Wimberly]: For the last fifteen years, since 2005. [The State]: Okay, and how long have you been with the Robbery Unit? [Det. Wimberly]: For the last nine years.

The following exchange then occurred following the court overruling Petitioner’s objection: [The State]: So anyway, [Det.] Wimberly, over the course of your nine years in the robbery unit, have you had the occasion to come across the term, lick? [Det. Wimberly]: Yes, I have. [The State]: Okay, and what, through your training and experience as a law enforcement officer, again, as a robbery detective, does that term mean? [Det. Wimberly]: A robbery. [The State]: Okay, and what about in the context of sweet, or something like that? [Det. Wimberly]: Yeah, [an] individual, they might refer to it as saying a lick, meaning an individual is an easy rob, easy to rob. *** [The State]: Okay, and this is, I guess, how often have you come across this, generally speaking, in your times investigating robberies? [Det.

Wimberly]: Numerous times[.] The record does not reveal an attempt by the State to connect anything specific about Det. Wimberly’s training or experience, beyond the fact that he had heard the term while investigating robberies, to the relevant definition for “lick.” 17 outside the “ken” of a layperson. In our view, much like Johnson and Galicia, the facts of this case present an opinion derived from processes that were discernible to the average person and fall under Maryland Rule 5-701. We agree with the State that the reasoning in King is persuasive.

King concerned testimony “to the meaning of certain ‘street lingo’” used in the District of Columbia. 74 A.3d at 679 . The terms at issue, “gleezy” and “bagged” were opined to mean a firearm and robbery. Id. at 680 . In holding that expertise was not required to opine on the meanings of these words, the District of Columbia Court of Appeals reasoned that learning slang terms represented “the everyday process of language acquisition” and “knowledge acquired through basic reasoning processes . . . accessible to an average person.” Id. at 683 .

Det. Wimberly’s opinion on the definition of “lick,” based on his encounters with that term on the street while working in the robbery unit, progressed through similarly “everyday process[es] of language acquisition . . . accessible to an average person.” Id. In Inversely, the record reveals that the State met the standard for a lay opinion. Maryland Rule 5-701 requires the circuit court consider whether an offered witness’s opinion is “rationally based on the perception of the witness[,]” i.e., if it is derived from their personal knowledge.

See also Robinson v. State, 348 Md. 104, 118 , 702 A.2d