Goines v. State

ALPERT, Judge. This appeal reaches us as a result of an aborted attempt to steal a dishwasher from a dwelling. The State of Maryland charged appellant Terrence Lee Goines by criminal indictment with: 1. storehouse breaking with intent to steal goods valued at $300.00 or more; 2. storehouse breaking and stealing goods valued at $5.00 or more; 3. theft over $300.00; 4. attempted theft over $300.00; 5. theft under $300.00; and 6. attempted theft under $300.00. ¹⁰⁶ A Prince George’s County jury, on August 21,1989, convicted appellant of storehouse breaking and stealing goods valued at $5.00 or more, theft under $300.00, and attempted theft under $300.00. Circuit Court Judge Joseph S. Casula sentenced Goines on October 30, 1990.

The court merged the attempted theft conviction into the theft conviction, and imposed concurrent sentences of ten years for the storehouse breaking and stealing and eighteen months for the theft under $300.00. Goines appeals his conviction to this court, raising the following issues: I. Was there sufficient evidence below to sustain appellant Mr. Gomes’s convictions for storehouse breaking and stealing and theft under $300.00?

II

Did the lower court err by not taking corrective measures in response to the prosecutor’s allegedly improper closing argument?

III

Does appellant Mr. Goines’s conviction for theft under $300.00 merge with his conviction for storehouse breaking and stealing? FACTS Trooper Gregory C. Taylor, of the Maryland State Police, was working “secondary employment” at the Palmer Woods development on November 12, 1989. Palmer Woods is a townhouse development on Countrywood Court in Seat Pleasant, Maryland. Capital Homes of Maryland, Inc. (CHM) is the developer.

On the night of the 12th, residents occupied forty units. Six completed units stood vacant, and CHM was still working on others. Mr. Robert Donovan, of CHM, was the site superintendent for the Palmer Woods project. Mr. Donovan was responsible for locking and securing each vacant, completed unit.

He testified that on November 12, 1989, at approximately 6:00 p.m., he secured 1796 Countrywood Court. This entailed locking all the doors and windows and turning on the lights. ¹⁰⁷ Early on the morning of the 13th, at approximately 1:00 a.m., Trooper Taylor, who was out of uniform but in his marked cruiser, noticed a ten thousand pound gross weight Hertz truck parked in front of 1796 Country wood Court. 1 A black female sat in the passenger side of the truck. Trooper Taylor got out of his cruiser, walked by the female passenger, and approached 1796 Country wood Court. Upon reaching the living room window to 1796 Trooper Taylor looked in and saw the appellant Goines in the kitchen “pulling on a dishwasher.” Trooper Taylor testified that the kitchen and upstairs of the unit were well lit.

Appellant Mr. Goines was “pulling the dishwasher trying to remove it from it’s [sic] place.” He was unsuccessful in pulling out the dishwasher. The installation crew had hooked up the dishwasher to a hose that was connected through a wall to presumably plumbing in the wall. Nevertheless, Goines successfully moved the dishwasher to the middle of the floor before he stopped his activities. After observing the appellant’s behavior for about four minutes, Trooper Taylor went to his cruiser and radioed for assistance.

He then returned to the window where Goines turned around and made eye contact with him. Goines immediately exited the townhouse through a sliding glass door. Mr. Goines had some quick words with his compatriot before Trooper Taylor detained him at gunpoint. A short while later, several county police officers arrived and apprehended Goines.

As the officers placed him under arrest he said “[y]ou [Trooper Taylor] didn’t see me in there.” 2 Later that day, November 13, 1989, Trooper Taylor accompanied Detective Tony Lee Camp, of the Prince George’s County Police, to the Prince George’s County ¹⁰⁸ Detention Center. As Detective Camp was reading Goines his rights, he “blurted” out “[y]ou got me on the one last night. Tell the man who owns the property I’ll pay him back, I don’t have anything else to say.” Meanwhile, at 7:00 a.m. Mr. Donovan arrived at 1796 Countrywood Court.

He discovered a broken kitchen window above the sink, and the dishwasher 3 in the middle of the floor. The police investigators and technicians recovered several fingerprints from the relevant areas in 1796 Countrywood Court. None matched up with appellant’s prints. Mr. Donovan testified that approximately five individuals put in the dishwasher, two put in the window above the kitchen sink, and that around six prospective purchasers had inspected that particular unit.

He did admit, however, to the possibility that the cleaning crew had cleaned the interior of the unit after the construction crew completed the unit around three weeks prior. I. First, we note the standard of review for sufficiency of the evidence. Our standard of review is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 , 99 S.Ct. 2781, 2789 , 61 L.Ed.2d 560 (1979) (emphasis in the original) (quoted in State v. Rusk, 289 Md. 230, 240 , 424 A.2d 720 ) (1981)). With the Jackson test in mind we now consider the parties’ arguments.

The jury convicted Goines of storehouse breaking and stealing under 3A Md.Ann.Code article 27, § 33 (1987 repl. vol.), theft under $300.00, and attempted theft under $300.00. As appellant points out, the State must prove a breaking and a stealing beyond a reasonable doubt to sustain a conviction under § 33. He specifically takes issue ¹⁰⁹ with the elements of stealing, of which theft is one. War-field v. State, 315 Md. 474, 494-95 , 554 A.2d 1238 (1989).

The Code defines theft in § 342. For purposes of this appeal we examine the language of § 342(a). (a) Obtaining or exerting unauthorized control. — A person commits the offense of theft when he willfully or knowingly obtains control which is unauthorized or exerts control which is unauthorized over property of the owner, and: (1) He has the purpose of depriving the owner of the property; or (2) Willfully or knowingly uses, conceals, or abandons the property in such manner as to deprive the owner of the property; or (3) Uses, conceals, or abandons the property knowing the use, concealment, or abandonment probably will deprive the owner of the property. 3A Md.Ann.Code art. 27, § 342(a) (1987 repl. vol.). Appellant argues that he never obtained or exerted control over the dishwasher because it was connected to the kitchen wall.

The Code states that: (d) “Exerts control ” includes but is not limited to the taking, carrying away, appropriating to one’s own use or sale, conveyance, transfer of title to, interest in, or possession of property. The term “exerts control” does not include trespassing on the land of another or occupying without authorization the land of another. Id. § 340(d). And the Code defines “obtains” as follows: (f) “Obtain” means: (1) In relation to property, to bring about a transfer of interest or possession, whether to the offender or to another; and (2) In relation to services, to secure the performance thereof.

Id. § 340(f). The State argues that appellant Mr. Goines exerted control over the dishwasher. We consider that argument. ¹¹⁰ The Legislature wrote § 342(a) in the disjunctive. That is, one commits a theft by either willfully or knowingly obtaining unauthorized control