Graham v. State

SONNER, Judge. A jury in the Circuit Court for Wicomico County (Warren, J.)convicted appellant Edward Norris Graham of assault with intent to murder, assault and battery, assault, use of a handgun during the commission of a crime of violence, reckless endangerment, and related handgun charges. The trial judge sentenced appellant to seven years in the Division of Correction for assault with intent to murder; five years, without the possibility of parole, for use of a handgun, to run consecutively; and one year for assault, also to run consecutively. All other convictions merged for sentencing purposes.

Appellant raises two questions, which we have restated slightly: I. Is the evidence insufficient to sustain the conviction for assault with intent to murder?

II

Did the trial court err in sentencing Mr. Graham separately on two assaults? We answer both questions in the negative and, accordingly, affirm the circuit court. FACTUAL BACKGROUND On January 12, 1996, Kevin Domenick drove to a public telephone located in the parking lot of a convenience store in Delmar, Maryland. While using the telephone, which he accessed while remaining in his automobile, he noticed a car pull into the lot in front of his car with its high beam headlights shining on his face.

Thinking it was his neighbor, who drove the same model car, “horsing around,” Domenick raised his middle finger in an obscene gesture. Appellant, who was driving the other vehicle, got out of the car and walked to where Domenick was sitting in his vehicle, and ²⁸³ asked him if he “had a problem.” Bomenick testified at trial that he answered, “[YJeah, I had a problem with him pulling up in front of me and putting his high beams in my face.” The two continued to exchange remarks until appellant reached into the car, grabbed his collar, and tried to hit Bomenick in the face, and did graze his cheek. Domenick, telephone receiver still in hand, hit appellant with the receiver, at which time appellant stepped back from the car, pointed a gun at Domenick, and said, “I’ll put a cap in your ass right now, ...” The gun was pointed at Domenick for several seconds, after which appellant pointed it toward the ground and worked the slide of the gun. Domenick immediately threw the phone receiver out the window and put the car in drive, leaving the parking lot.

As he drove away, Domenick heard a gunshot, although neither he nor his car was struck. Domenick drove to the rear of the store, parked, entered the store, called police, and gave a description of appellant and the vehicle. When police officers arrived, they searched the parking lot and located a spent shell casing. A police officer later stopped the vehicle appellant was driving and arrested him.

A search of the vehicle belonging to appellant uncovered a gun, wrapped in a towel, under the passenger seat. At trial, a firearms examiner testified that the casing recovered from the crime scene had been fired from appellant’s gun. DISCUSSION ' I. Appellant, in this appeal, claims that the evidence introduced at trial was insufficient to sustain the conviction for assault with intent to murder, as the mere pointing of a weapon at another does not support an inference of an intent to kill. In reviewing a case to determine the sufficiency of the evidence to support the conviction, the court must determine whether, after viewing the evidence in the light most ²⁸⁴ 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); McMillian v. State, 325 Md. 272 , 600 A.2d 430 (1992); Wilson v. State, 319 Md. 530 , 573 A.2d 831 (1990). The intent element of assault with intent to murder requires proof of a specific intent to kill under circumstances such that, if the victim had died, the offense would be murder. State v. Jenkins, 307 Md. 501, 515 , 515 A.2d 465 (1986). Intent to murder is an element the prosecution is required to prove; as an evidentiary matter, however, such proof can be based upon a showing of, or inference from, certain other factors or circumstances.

Id. at 512 , 515 A.2d 465 . In determining the intent of the defendant, the trier of fact is permitted to infer the requisite intent from the surrounding circumstances. Intent is subjective, such that, without the cooperation of the accused, it cannot be directly and objectively proven. Consequently, without a statement from the accused, its presence must be shown by established facts that permit a proper inference of its existence.

State v. Earp, 319 Md. 156, 167 , 571 A.2d 1227 (1990) (quoting Davis v. State, 204 Md. 44, 51 , 102 A.2d 816 (1954)). Evidence showing a design to commit grievous bodily injury, such as using a deadly weapon directed at a vital part of the body, is sufficient circumstantial evidence because it gives rise to an evidentiary inference of an intent to murder. Jenkins, 307 Md. at 513 , 515 A.2d 465 . This raises the question, what is meant by the words “directed at”?

Is pointing the gun sufficient, or must the gun be fired at the victim for the act to be considered to be “directed at”? In Hall v. State, 69 Md.App. 37 , 516 A.2d 204 (1986), this Court considered whether the evidence was sufficient to support a conviction of assault with intent to murder. That case arose out of a chase in the early morning hours by Montgomery County Police officers pursuing Lorenzo Hall, a suspect in a burglary and auto theft. The officers chased Hall on foot ²⁸⁵ into a dark, wooded area.

As the officers reached the edge of the wooded area, they heard a gunshot and saw a muzzle flash. The officers dove for cover and did not enter the wooded area. The officers then heard another gunshot. Another Montgomery County police officer arrived on the other side of the wooded area and saw Hall emerge from the woods.

That officer arrested Hall and recovered a handgun. The gun had a strong odor, indicating that it had been recently fired, and contained three live shells and two spent rounds. Hall was charged and convicted on numerous counts, including three counts of assault with intent to murder, one for each of the three police officers who chased him. Judge Karwacki, sitting on this Court, wrote that the evidence was insufficient to support the convictions of assault with intent to murder: The record before us in the present case, however, is devoid of any evidence from which it can be inferred that the appellant acted with intent to kill the officers who pursued him.

Because no one actually saw the appellant fire the gun, and there was no evidence as to the path that the discharged bullet took, no inference is permissible that the shots were even randomly directed at the officers. Applying the constitutional standard of review to these convictions of assault with intent to murder, we hold that the evidence was insufficient to establish the requisite intent essential to the crime of assault with intent to murder. Id. at 47 , 516 A.2d 204 . Applied to the present case, there is no evidence as to what direction appellant fired his gun or what path the bullet took.

There were no witnesses who testified as to what position the gun was in when fired. There was no evidence as to where the bullet came to rest. It did not strike Domenick or his vehicle. The bullet fired by Graham may have passed through an open window of Domenick’s vehicle and out through the other; however, there is still no evidence of its path.

Hall is distinguishable from the case we have before us. Here, appellant pointed a gun at another person and made a threat to shoot that person. These facts give us some appreciation of ²⁸⁶ appellant’s intention, whereas the facts in Hall give us nothing to show Hall’s intent. In another case from this Court, Brown v. State, 64 Md.App. 324 , 494 A.2d 999 (1985), a suspect in a store robbery-pointed a gun at an off-duty police officer in an attempt to flee the crime scene.

The proven facts in that case showed nothing more than the pointing of the gun, with no verbal threat attached. This Court overturned Brown’s conviction for assault with intent to murder. In doing so, the Court said, “The record, then, reveals nothing more than the mere assault itself — the pointing of the weapon — and that clearly, is not enough.” Id. at 333 , 494 A.2d 999 . The Court of Appeals, in Shenberger