Hall v. State

REED, J. A jury in the Circuit Court for Frederick County convicted Calvin Jerome Hall, appellant, of first-degree burglary and theft of $10,000 to under $100,000 in value. During trial, he was acquitted with respect to a charge of malicious destruction of property. He was sentenced to 20 years of imprisonment, with all but 15 years suspended, followed by three years of supervised probation for first-degree burglary. In addition, he was ordered to pay restitution totaling $12,902.04.

Appellant timely appealed and presents three questions for our review, which we rephrased: 1 1. Was the evidence sufficient to support the guilty verdict reached by the jury on the burglary charge? 1. Was the evidence sufficient to support Mr. Hall's burglary conviction? 2. Did the trial court abuse its discretion when it permitted Trooper Dwyer to testify as an expert, when he was not sufficiently qualified? . 3.

Did the trial court err when it ordered restitution that related to the malicious destruction charge of which Mr. Hall was acquitted? ⁷⁷ 2. If properly preserved for appeal, did the trial court abuse its discretion when it certified Trooper Dwyer as an expert? 3. Did the trial court abuse its discretion when it ordered Mr. Hall to pay restitution pursuant to the burglary conviction even though he was previously acquitted on the malicious destruction charge? For the following reasons, we answer the first question in the affirmative and the second and third questions in the negative.

Therefore, we affirm the judgments of the circuit court. Factual And Procedural Background On November 10, 2011, Ms. Martha Goodenough left her residence at 8049 Stone Ridge Drive in Frederick, Maryland, sometime between 7:45 and 7:50 a.m. to go to work. Such was her usual morning routine. When she arrived home from work around 3:40 p.m., she immediately noticed that her front screen door was propped open.

Then, upon opening her garage door, she noticed that the door leading into the house from the garage was also open, even though she had closed and locked it before she left for work. She entered her house and discovered that a number of her personal items were missing, including two televisions, a computer, a printer, three Coach purses, and multiple boxes of jewelry. She also discovered that her front door had been kicked in in such a way that it broke her doorframe. She called 9-1-1 and the police reported to the scene.

On the same day, at approximately 5:45 p.m., appellant sold several pieces of Ms. Goodenough’s jewelry to Frazier’s Pawn Shop in Martinsburg, West Virginia. He provided the assistant manager of the pawn shop with his driver’s license, which contained the name “Calvin J. Hall” and the address 2203 Lamp Post Lane, Frederick, Maryland. Frazier’s Pawn Shop recorded this information in its daily transactions report, which it shares with the local police department in Martins-burg, West Virginia. Appellant returned to Frazier’s Pawn Shop several times during the next two weeks and sold a total of nine pieces of Ms. Goodenough’s jewelry. ⁷⁸ After learning from the police department in Martinsburg, West Virginia, that appellant had pawned jewelry matching the description of that which was stolen from Ms. Goode-nough’s house, Detective Joseph McCallion of the Frederick County Sheriffs Office subpoenaed appellant’s telephone records.

Those records were given to Senior Trooper Dave Dwyer of the Maryland State Police, who, over appellant’s objections, was allowed to testify as an expert on reading and mapping cell phone data. He testified at trial regarding one of the maps he had made using appellant’s cell phone data. That map indicated the cell towers appellant’s cell phone had communicated with in the window of time in which the burglary occurred. It also showed where those towers were located in relation to Ms. Goodenough’s residence.

Trooper Dwyer testified that on the day of the burglary, appellant’s phone “hit” off a cell tower near Ms. Goodenough’s residence at 12:11 p.m., 12:52 p.m., and 1:09 p.m. He further testified that all three of those “hits” corresponded with the side of the cell tower closest to Ms. Goodenough’s residence, and that calls and texts made earlier in the day “hit” off towers that were farther away. The jury found that the aforementioned circumstantial evidence was sufficient to find appellant guilty of first-degree burglary and theft of $10,000 to under $100,000 in value. After sentencing, appellant filed a timely appeal.

Discussion I. Sufficiency of the Evidence A. Parties’ Contentions Appellant argues that the State “failed to prove beyond a reasonable doubt that [he] was the person who broke and entered Ms. Goodenough’s home.” Appellant argues that the two main pieces of circumstantial evidence linking him to the crime—namely, the fact that he had pieces of Ms. Goodenough’s jewelry in his possession a short time after the burglary and that his cell phone “hit” off a cell tower near Ms. Goodenough’s home around the time of the burglary—were ⁷⁹ insufficient to prove his guilt beyond a reasonable doubt. He notes that the State provided no direct evidence in the form of eyewitness testimony or fingerprint evidence linking him to the scene of the crime. Appellant acknowledges that in Molter v. State, 201 Md.App. 155 , 28 A.3d 797 (2011), we held that the “unexplained possession of recently stolen goods ... permits the trier of fact to infer that the possessor was the burglar.” Id. at 168 , 28 A.3d 797 . However, he argues that more circumstantial evidence was presented against Molter than was presented against him.

Therefore, he argues that there was insufficient evidence to support an inference that he committed the burglary. The State argues that there was sufficient evidence to support the jury’s verdict. The State points to evidence that appellant sold several pieces of Ms. Goodenough’s jewelry to a pawn shop on the evening of the burglary, the fact that he sold additional pieces of Ms. Goodenough’s jewelry to the same pawn shop over the course of the next two weeks, and the fact that his cell phone “hit” off a cell tower near Ms. Goode-nough’s home between noon and 1:00 p.m. on the day of the burglary to support its contention that the jury’s verdict was based on sufficient evidence. In response to appellant’s argument based on our decision in Molter , the State argues that evidence that an individual was in possession of recently stolen property is sufficient to support an inference that that individual was the burglar.

The State argues that even if Molter does require additional evidence, the jury’s verdict should still be upheld because additional evidence was presented. The additional evidence the State points to is the fact that appellant was in possession of the stolen property on the very same day as the burglary and the fact that his cell phone records place him in the vicinity of Ms. Goodenough’s home when the burglary is thought to have occurred. B. Standard of Review We recently laid out the applicable standard of review for determining whether sufficient evidence exists to support a conviction on appeal: ⁸⁰ The test of appellate review of' evidentiary sufficiency 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.’ ” State v. Coleman, 423 Md. 666, 672 [ 33 A.3d 468 ] (2011) (quoting Facon v. State, 375 Md. 435, 454 [ 825 A.2d 1096 ] (2003)). The Court’s concern is not whether the verdict is in accord with what appears to be the weight of the evidence, “but rather is only with whether the verdicts were supported with sufficient evidence—that is, evidence that either showed directly, or circumstantially, or supported a rational inference of facts which could fairly convince a trier of fact of the defendant’s guilt of the offense charged beyond a reasonable doubt.” State v. Albrecht, 336 Md. 475, 479 [ 649 A.2d 336 ] (1994). “We ‘must give deference to all reasonable inferences [that] the fact-finder draws, regardless of whether [the appellate court] would have chosen a different reasonable inference.’ ” Cox v. State, 421 Md. 630, 657 [ 28 A.3d 687 ] (2011) (quoting Bible v. State, 411 Md. 138, 156 [ 982 A.2d 348 ] (2009)).

Further, we do not “ ‘distinguish between circumstantial and direct evidence because [a] conviction may be sustained on the basis of a single strand of direct evidence or successive links of circumstantial evidence.’ ” Montgomery v. State, 206 Md. App. 357, 385 [ 47 A.3d 1140 (2012) ] (quoting Morris v. State, 192 Md.App. 1, 31 [ 993 A.2d 716 ] (2010)), cert. denied, 429 Md. 83 [ 54 A.3d 761 ] (2012). Kyler v. State, 218 Md.App. 196, 214-15 , 96 A.3d 881 (2014) (quoting Donati v. State, 215 Md.App. 686, 716 , 84 A.3d 156 , cert. denied, 438 Md. 143 , 91 A.3d 614 (2014)). C. Analysis The statute in effect on November 10, 2011, defined first-degree burglary as the “breaking] and entering] [of] the dwelling of another with the intent to commit theft or a crime of violence.” Md.Code Ann., Crim. Law § 6-202 (2002 Repl.

Vol.) (amended 2014). Looking at the evidence in the light most favorable to the prosecution and giving deference to all ⁸¹ reasonable inferences drawn by the jury, we hold that appellant’s first-degree burglary conviction is upheld because there was sufficient evidence to support the jury’s findings. Appellant argues that his possession of Ms. Goodenough’s jewelry on the day of the burglary and the presence of his cell phone near Ms. Goodenough’s house was insufficient evidence for the jury to find him guilty of first-degree burglary. We disagree.

The fact that no direct evidence was produced linking appellant to the crime does not mean that no reasonable jury could have found him guilty beyond a reasonable doubt. That all the evidence against him was circumstantial is irrelevant. As we have repeated time and time again, “[a] conviction may be sustained on the basis of a single strand of direct evidence or successive links of circumstantial evidence.” Kyler, 218 Md.App. at 215 , 96 A.3d 881 (citations omitted). Therefore, the only inquiry is whether the circumstantial evidence presented to the jury was sufficient for “any rational trier of fact ... [to find] the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979).

As appellant stated in his brief, the jury was presented with evidence that he was “[in] possession of some of the stolen items after the crime and [that] ... his cell phone [was] in the general vicinity of a cell tower near Ms. Goodenough’s home on the day of the crime.” Additionally, the jury heard the testimony of Detective Joseph McCallion that, based on his experience investigating thefts and burglaries, individuals who steal personal property frequently sell the property out-of-state in order to avoid detection by local police. He further testified that during the investigation he searched appellant’s phone number on Craig’s List and found several postings for the sale of electronics during the months of October and November of 2011. Based on these successive links of circumstantial evidence, a reasonable jury could have inferred that appellant was guilty. In Molter v. State, we reiterated that “[possession of recently stolen goods, absent a satisfactory explanation, per ⁸² mits the drawing of an inference ... that the possessor was the thief ... or, where the theft was compounded, that the possessor was also the burglar.” 201 Md.App. 155, 169 , 28 A.3d 797 (2011) (quoting Brewer v. Mele, 267 Md. 437, 449 , 298 A.2d 156 (1972)) (emphasis in original).

We went on to explain that the validity of such an inference has been upheld by the Court of Appeals. 2 Molter was seen by an eyewitness at the burglarized home on the day of the burglary and the homeowner testified that the appellant was one of only two people who knew that he was going to be out of town on the day the burglary took place. Molter, 201 Md.App. at 161 , 28 A.3d 797 . Appellant argues that similar evidence is necessary to support his conviction. We disagree.

Molter does not stand for the proposition that a minimum amount of evidence is necessary in addition to the possession of recently stolen property in order to support an inference that the possessor was the thief or the burglar. Rather, it stands for the proposition that the unexplained possession of recently stolen property permits the jury to infer guilt by itself. In the end, our job is to determine whether a reasonable jury could have determined, based on all of the evidence viewed in the light most favorable to the prosecution, that all of the elements of the crime were satisfied. It is not even necessary that we agree with the inferences made by the jury.

Smith v. State, 415 Md. 174, 184 , 999 A.2d 986 (2010). All we concern ourselves with is whether their inferences were reasonable. Kyler, 218 Md.App. at 214 , 96 A.3d 881 (2014) (internal citations omitted). Employing that analysis, we hold that the evidence presented against appellant was sufficient to fairly convince the jury of his guilt beyond a reasonable doubt. ⁸³ II.

Trooper Dwyer’s Expert Testimony A. Parties’ Contentions The State offered Senior Trooper Dave Dwyer of the Technical Surveillance Unit of the Maryland State Police as an expert in “cell phone and cell tower data reading, and utilizing the information to plot on a map to create a historical record of a cell phone’s location at the time of communications.” Appellant argues that when defense counsel stated that Trooper Dwyer was “not an expert,” a proper objection was thereby made to the trial court’s determination that he was sufficiently qualified to provide expert testimony. Thus, appellant argues that that issue is preserved for appeal and that Trooper Dwyer’s qualifications as an expert fall short of what we have required in Coleman-Fuller v. State, 192 Md.App. 577 , 995 A.2d 985 (2010), and Wilder v. State, 191 Md.App. 319 , 991 A.2d 172 , cert. denied, 415 Md. 43 , 997 A.2d 792 (2010). Appellant argues that a cell tower engineer or an employee of his cell phone company would have been sufficiently qualified to testify as an expert on data plotting, but Trooper Dwyer was not. The State, on the other hand, argues that defense counsel’s objections at trial were insufficient to preserve the issue of Trooper Dwyer’s expert qualifications for appeal.

The State asserts that the objections defense counsel made before Trooper Dwyer’s testimony were on the grounds that an expert was not required in order to map appellant’s cell phone data because a mere lay witness could have done so. The State contends that defense counsel’s final objection at the end of Trooper Dwyer’s testimony was made on the same grounds as his earlier objections because he began by saying “I’m [going to] renew my objection to ... Trooper Dwyer being admitted as an expert.” Therefore, the State asserts that appellant is precluded from raising a different objection (namely as to whether Trooper Dwyer was sufficiently qualified to be an expert) on appeal. However, if we decide that defense counsel’s objections were sufficient to preserve this issue for appeal, then the State’s alternative argument is that ⁸⁴ the trial court did not abuse its discretion by admitting Trooper Dwyer as an expert.

B. Standard of Review Maryland Rule 4-323 provides, in relevant part: (a) Objections to Evidence. An objection to the admission of evidence shall be made at the time the evidence is offered or as soon thereafter as the grounds for objection become apparent. Otherwise, the objection is waived. The grounds for the objection need not be stated unless the court, at the request of a party or on its own initiative, so directs.

In addition, Maryland Rule 5-103(a) states: (a) Effect of Erroneous Ruling. Error may not be predicated upon a ruling that admits or excludes evidence unless the party is prejudiced by the ruling, and (1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was requested by the court or required by rule; or (2) Offer of Proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer on the record or was apparent from the context within which the evidence was offered.

The court may direct the making of an offer in question and answer form. While a party need not state the specific grounds for objection unless directed to do so by the court, the Court of Appeals has nonetheless held that “where a party voluntarily states his grounds for objection even though not asked, he must state all grounds and waives any not so stated.” von Lusch v. State, 279 Md. 255, 261 , 368 A.2d 468 (1977). Therefore, our ability to review the issue of Trooper Dwyer’s expert qualifications is dependent upon whether a proper objection was made at trial. If the issue has been preserved for appeal, we will review the admission of Trooper Dwyer’s testimony under an abuse ⁸⁵ of discretion standard.

See Brown v. Contemporary OB/GYN Assocs., 143 Md.App. 199, 252 , 794 A.2d 669 (2002). In Brown , we noted that “admissibility of expert testimony is within the sound discretion of the trial court, and its action will seldom constitute a ground for reversal.” Id. (quoting Pepper v. Johns Hopkins Hosp., 111 Md.App. 49, 76 , 680 A.2d 532 (1996), aff'd, 346 Md. 679 , 697 A.2d 1358 (1997)) (internal quotations and citations omitted). We further noted that “[t]he trial court’s determination is reversible [only] if it is founded on an error of law or some serious mistake, or if the trial court clearly abused its discretion,” Brown, 143 Md.App. at 252 , 794 A.2d 669 (quoting Pepper, 111 Md.App. at 76-77 , 680 A.2d 532 ) (internal quotations omitted), and that “[a]n appellate court will only reverse upon finding that the trial judge’s determination was both manifestly wrong and substantially injurious.” Brown, 143 Md.App. at 252 , 794 A.2d 669 (quoting Commercial Union Ins.

Co. v. Porter Hayden Co., 116 Md.App. 605, 641 , 698 A.2d 1167 , cert. denied, 348 Md. 205 , 703 A.2d 147 (1997)) (internal quotations omitted). C. Analysis We first turn to whether defense counsel’s objections were sufficient to preserve the issue of Trooper Dwyer’s expert qualifications for appeal. After the State moved to admit Trooper Dwyer as an expert in “cell phone and cell tower record data reading, and utilizing that information to plot on a map to create a historical record of a cell phone’s location at the time of communications,” and prior to performing voir dire on Trooper Dwyer, defense counsel made a preliminary objection: THE COURT: Mr. Frawley, would you like to voir dire on that? [Defense counsel]: Your Honor, I’m going to object ... at this point ... because the State just made the case that he’s not an expert. An expert’s purpose is to clarify information that is cloudy, that could be cloudy to a jury.

All, according to Mr. Shoemaker, all this trooper’s going to testify to is ⁸⁶ that he looked at a charge, he looked down one column, he looked down another column and he was able to then pinpoint something on a map, which, if the State provides that evidence to the jury, they can do themselves. And I know this, because I could figure out how to do this and I’m not an expert in this. [Defense counsel]: I’m sorry. The State is simply trying to introduce ... cell phone records through an expert that they didn’t want to use the cell phone company for. This is not expert testimony that he’s doing.

He’s not, he isn’t doing any analysis. A DNA expert uses scientific methods to create an answer to a question that none of us can do. If I can figure out these cell phone records than [sic] any member of this jury can as well. And, therefore, this is not expert testimony and this testimony is no [sic] subject to expert testimony.

The court overruled that objection, and defense counsel proceeded to perform voir dire on the witness. At the end of voir dire, defense counsel made a second objection: [Defense counsel]: Trooper, I’m going to rephrase the question ... [I]f I had these documents would I be able to calculate where a cell phone tower is? [Trooper Dwyer]: With the training yes, you should be able to do that. [Defense counsel]: I would have the training to do it. Is that what your testimony is? [Trooper Dwyer]: It would help you along the way, yes, to understand them. [Defense counsel]: Would I have to have the training? [Trooper Dwyer]: Not necessarily, no. [Defense counsel]: Okay. So, your testimony is if given the right records I could figure our [sic] to do this? [Trooper Dwyer]: My opinion, yes. ⁸⁷ [Defense counsel]: At this point I would ... argue that he’s not an expert.

He’s just said that I could do this. THE COURT: Well ... [Defense counsel]: And I’m not an expert. [Prosecutor]: Your Honor, that’s not the standard. He has special training and experience [sic] do this. THE COURT: It’s whether it would be helpful to the jury.

Objection’s overruled. THE COURT: Any other questions, Mr. Frawley? [Defense counsel]: No, Your Honor, thank you. THE COURT: Do you object? [Defense counsel]: Yes, Your Honor. THE COURT: Objection’s overruled.

He’s received. Finally, at the conclusion of Trooper Dwyer’s testimony, defense counsel made one last objection: [Defense counsel]: I’m gonna’ renew my objection to not, Trooper Dwyer being admitted as an expert. Uh, the State intended to, called him as an expert on the functions of cell phone towers and yet he didn’t even know the size of a cell. He doesn’t know what he needs to know as an expert.

Your Honor, I would ask that he be not designated as an expert and that all of his testimony be stricken and an [sic] curative instruction being told to the jury that he’s not to be considered an expert in cell phones. Again, his objection was overruled. Because defense counsel voluntarily stated grounds for each objection, he waived any not so stated. See von Lusch v. State, 279 Md. at 261 , 368 A.2d 468 .

Therefore, in order for us to review whether the trial court abused its discretion by admitting Trooper Dwyer as an expert witness, defense counsel must have objected at least once on the grounds that Trooper