Hebron v. State

WILNER, Chief Judge. A jury in the Circuit Gourt for Montgomery County convicted appellant of breaking and entering a dwelling ⁵¹⁰ house, attempted breaking and entering a dwelling house, and malicious destruction of property. These convictions stemmed from an incident that occurred on May 21, 1991 at the home of Dr. Hilary Weiner, located in the Tanglewood development. When she left in the morning to go to work, Dr. Weiner secured the house, presumably meaning that she closed and locked the front door.

When she returned later in the afternoon, she found the door frame “splintered” and “broken apart.” As a result, “you could just push the door open and could not secure the door afterwards.” Evidence from a neighbor established that, about 11:00 that morning, appellant, driving a gray car with what turned out to be stolen plates, parked near Dr. Weiner’s home and proceeded to walk between two buildings in the direction of the home. The neighbor lost sight of him but shortly heard “a loud, really loud, bang noise. Not a pop bang, but a bash bang.” About 20 seconds later, she saw appellant emerge from between the two buildings, get into his car, and drive away. Appellant makes three complaints in this appeal: that the court erred in refusing to give a jury instruction concerning circumstantial evidence, that the evidence was legally insufficient to sustain his conviction for breaking and entering, and that the court erred in allowing evidence of other crimes.

We shall deal with these complaints in a somewhat different order, but finding no merit in any of them, we shall affirm. Sufficiency of Evidence Appellant’s argument as to evidentiary sufficiency goes only to the conviction for breaking and entering and indeed only to the question of whether the State adequately proved an entry into Dr. Weiner’s home. He does not contest that the evidence sufficed to show a breaking. It is true, as he posits, that no one saw him enter Dr. Weiner’s home; nor was anything taken from the house.

The only evidence indicating an entry came from the condi ⁵¹¹ tion of the door frame and the fact that, when she returned home, Dr. Weiner found her cats “spooked.” Although there are many cases in which the Maryland courts have discussed and defined what constitutes a “breaking” for purpose of our various burglary and trespass statutes, we seem not yet to have addressed the requisites of an entry. The law on that elsewhere, stemming from the English common law, is well established, however. Wharton states the law this way: “There is an entry when any part of the defendant’s person passes the line of the threshold. Thus, there is an entry when the defendant, after opening a closed door, steps across the threshold; when, after breaking the glass of a door or window, he reaches inside to unlock the door or window or to steal property; when, in the course of breaking the glass of a door or window, his finger, hand, or foot happens to pass through the opening; or when, in the course of pushing open a closed door or raising a closed window, his finger or hand happens to pass the line of the threshold.” (Emphasis added). 3 Wharton’s Criminal Law, 14th Ed., § 332.

See also LaFave and Scott, Criminal Law, p. 710; R. Perkins, Criminal Law, pp. 155-56; Clark and Marshall, A Treatise on the Law of Crimes, 7th ed., § 13.04. We see no reason not to adopt that view. Apart from the splintering of the door frame, Dr. Weiner stated that she observed splintered wood on a mat inside the house. Officer Hall also noticed splinters or chips on the inside floor.

That evidence, coupled with the loud bang heard by the neighbor and the fact that the frame was so damaged as to make it impossible to close and latch the door, could lead a rational trier of fact reasonably to find that appellant used his body to batter the door with such force as to defeat the lock and open the door. From that, the trier of fact could further reasonably infer that, with the application of that kind of body pressure to the door, some part of appellant’s body must necessarily have ⁵¹² crossed the threshold when the door opened. We therefore conclude that the evidence was sufficient to sustain the charge. Jury Instruction The court instructed the jury that the State had the burden of proving appellant’s guilt beyond a reasonable doubt and it defined the concept of reasonable doubt.

In the course of those instructions, it told the jury: “There are two types of evidence: direct and circumstantial. The law makes no distinction between the weight to be given to either direct or circumstantial evidence. No greater degree of certainty is required of circumstantial evidence than of direct evidence. In reaching your verdict, you should weigh all the evidence presented, whether it be direct or circumstantial.” No objection was made to any of the court’s instructions.

When the court was finished, however, defense counsel, asserting that the case was based solely on circumstantial evidence and that the evidence must therefore preclude all reasonable inferences of innocence, asked for an additional instruction that “if you [i.e., the jury] can draw more than one reasonable inference from the circumstantial evidence, then [appellant] must be found not guilty.” The court declined to give that additional instruction but permitted counsel to argue the point to the jury, which he proceeded to do. Relying principally on West v. State, 312 Md. 197 , 539 A.2d 231 (1988), appellant claims that the refusal to give that additional instruction constitutes reversible error. We do not agree. The principle at issue is a simple one.

As stated in Wilson v. State, 319 Md. 530, 536-37 , 573 A.2d 831 (1990): “A conviction may rest on circumstantial evidence alone____ To ensure that the trier of fact bases a finding of guilt on the appropriate degree of certainty, we have long held that a conviction upon circumstantial evidence ⁵¹³ alone is not to be sustained unless the circumstances, taken together, are inconsistent with any reasonable hypothesis of innocence.” The validity of that principle is not in question; at issue is whether it is the proper subject of a jury instruction. There was a time when an instruction of that kind was routinely given, even when the evidence was not entirely circumstantial. The instruction was based on the notion that circumstantial evidence was of a lesser quality than direct evidence — that it was inherently less persuasive and that the jury should be so informed. Wigmore contested that view as did the great Judge Learned Hand.

See United States v. Becker, 62 F.2d 1007, 1010 (2d Cir.1933). It was not until 1954, however, that the underpinning of the instruction was authoritatively debunked and the practice of giving it sharply curtailed. In Holland v. United States, 348 U.S. 121 , 75 S.Ct. 127 , 99 L.Ed. 150 (1954), a criminal tax evasion case based on net worth evidence, the defendant complained of the trial judge’s refusal to instruct the jury that where the evidence is circumstantial, “it must be such as to exclude every reasonable hypothesis other than that of guilt.” Id. at 139, 75 S.Ct. at 137 . The Supreme Court found no error, stating, at 139-40, 75 S.Ct. at 137 -38: “There is some support for this type of instruction in the lower court decisions [citations omitted], but the better rule is that where the jury is properly instructed on the standards for reasonable doubt, such an additional instruction on circumstantial evidence is confusing and incorrect____ Circumstantial evidence in this respect is intrinsically no different from testimonial evidence.

Admittedly, circumstantial evidence may in some cases point to a wholly incorrect result. Yet this is equally true of testimonial evidence. In both instances, a jury is asked to weigh the chances that the evidence correctly points to guilt against the possibility of inaccuracy or ambiguous inference. In both, the jury must use its experience with people and events in weighing the probabilities.

If the jury is con ⁵¹⁴ vinced beyond a reasonable doubt, we can require no more.” Holland eliminated the instruction in Federal cases. See United States v. Stone, 748 F.2d 361, 362 (6th Cir.1984), cert. denied, — U.S. —, 111 S.Ct. 71 , 112 L.Ed.2d 45 (1990); Robertson v. United States, 364 F.2d 702 , 703 n. 1 (D.C.Cir.1966); State v. Wilkins, 215 Kan. 145 , 523 P.2d 728, 736 (1974) and cases cited therein. It also caused many, if not most, of the States to reexamine the instruction and to eliminate or sharply curtail its use. See D. Gaffney, The Circumstantial Evidence Charge in Texas Criminal Cases: A Retrograde Doctrine, 55 Tex.L.Rev. 1255 (1977), noting, at 1260, that, by 1977, at least 11 States had adopted the new Federal approach.

In fact, more than 11 States have abandoned their former practice, based largely on Holland. See, by way of example, State v. Wilkins, supra, 523 P.2d 728 ; State v. Harvill, 106 Ariz. 386 , 476 P.2d 841 (1970); Henry v. State, 298 A.2d 327 (Del.Supr.1972); State v. Roddy, 401 A.2d 23 (R.I.1979); State v. Jackson, 331 A.2d 361 (Me.1975); Hankins v. State, 646 S.W.2d 191 (Tex.Cr.App.1981); State v. Derouchie, 140 Vt. 437 , 440 A.2d 146 (1981); State v. Gosby, 85 Wash.2d 758 , 539 P.2d 680 (1975); Blakely v. State, 542 P.2d 857 (Wyo.1975); State v. Jenks, 61 Ohio St.3d 259 , 574 N.E.2d 492 (1991). The situation in Maryland is ambiguous — in part because of the vestige of our quaint Constitutional provision declaring the jury to be the judge of both the law and the facts, in part because, though recognizing generally that circumstantial and direct evidence are of the same quality, we adhere to the notion that a conviction cannot rest on a single strand of circumstantial evidence unless that strand is inconsistent with all reasonable hypotheses of innocence. The Court of Appeals seems clearly to have adopted the general underlying premise that, in terms of quality, there is no difference between direct and circumstantial evidence.

Quoting with approval from Nichols v. State, 5 Md.App. 340, 350-51 , 247 A.2d 722 (1968), cert. denied, 253 Md. 735 ⁵¹⁵ (1969), the Court stated in Gilmore v. State, 263 Md. 268, 292-93 , 283 A.2d 371 (1971), vacated in part, Gilmore v. Maryland, 408 U.S. 940 , 92 S.Ct. 2876 , 33 L.Ed.2d 763 (1972): “ ‘The law makes no distinction between direct evidence of a fact and evidence of circumstances from which the existence of a fact may be inferred. No greater degree of certainty is required when the evidence is circumstantial than when it is direct, for in either case the trier of fact must be convinced beyond a reasonable doubt of the guilt of the accused____ “[Circumstantial evidence need not be such that no possible theory other than guilt can stand____ It is not necessary that the circumstantial evidence exclude every possibility of the defendant’s innocence, or produce an absolute certainty in the minds of the jurors.” ’ ” Judge Moylan recently examined these cases for us in Eiland v. State, 92 Md.App. 56 , 607 A.2d 42 (1992), concluding, as did the Wilson Court, that only in that limited situation “where the State’s proof of guilt depends exclusively upon a single strand of circumstantial evidence” must it exclude every reasonable hypothesis of innocence. Id., 92 Md.App. at 69 , 607 A.2d 42 . Maryland is not unique in carving out that exception.

See Ransonette v. State, 550 S.W.2d 36, 43 (Tex.Crim.App.1977); Byrth v. United States, 327 F.2d