Herd v. State

MOYLAN, Judge. The appellant, Frederick Herd, was convicted in the Circuit Court for Baltimore City by Judge Paul A. Smith, sitting without a jury, of burglary in the fourth degree. The appellant, a licensed bailbondsman, asserted as a defense his allegedly reasonable belief that he was entitled to enter the premises in question. Before even reciting the list of subtle and perplexing issues raised by this appeal, it behooves us to note that this case was submitted to Judge Smith on an agreed statement of facts.

It should serve as a classic illustration of the frequently overlooked truth that simply because a defendant submits on an agreed statement of facts, forbearing to require the State to call a single fact witness and abjuring any right to cross-examine a single accuser, such a choice of trial modalities by no means implies that the procedure is the functional equivalent of a guilty plea. In this regard, see Atkinson v. State, 381 Md. 199 , 203 n. 3, 627 A.2d 1019 (1993) (“Although this procedure should not be used when there are significant witness credibility questions, we have approved of it in the past when the parties sought to argue solely legal questions at trial” (Emphasis supplied)); Ingersoll v. State, 65 Md.App. 753, 761 , 501 A.2d 1373 (1986) (“We conclude, as we did in Ward, that neither the reported cases of the Court of Appeals nor of this Court ‘stand for the broad proposition that any “not guilty plea with an agreed statement of facts” is now to ⁸¹ be regarded as “the functional equivalent to a guilty plea.” ’ ”); Ward v. State, 52 Md.App. 664, 670-73 , 451 A.2d 1243 (1982). No mere functional equivalent of a guilty plea would give rise to the fiercely contested legal issues with which the trial judge had to grapple and with which we must now contend: 1) What precisely is the mens rea of fourth-degree burglary and what is the impact on that mens rea of a defendant’s reasonable belief that he was entitled to make the intrusion in question? 2) With respect to such reasonable belief (or the absence thereof), to which party is allocated 1) the burden of initial production, 2) the burden of ultimate persuasion, and 3) what is the level of persuasion that must be satisfied by the party carrying that burden? 3) Did the trial judge, sitting as a jury, apply the appropriate burden of persuasion, both as to its allocation and as to its required level of certainty, to his ultimate, conclu-sory fact finding on this issue of reasonable belief? 4) Were the uncontested facts, recited in the agreed statement, legally sufficient to support the verdict? The Agreed Statement of Facts The narrative of events set out in the agreed statement of facts self-evidently was not in dispute.

Frederick Herd, the appellant, was at all relevant times employed by Courtside Bail Bonds (hereinafter “Courtside”) as a bail bondsman. Herd’s duties included the apprehension and arrest of fugitives. On August 9, 1996 Steven Weiner, the operator of Court-side, informed Herd that James Askins, one of Courtside’s clientele, had failed to appear for trial and that a warrant had been issued for Askins’s arrest. Askins had been released on a bond of $10,000 put up by Courtside on the charge of violation of probation.

Herd was instructed by Weiner to find Askins. Accordingly, Herd, Weiner, and two other bail bondsmen (Parsons and Doran) employed by Courtside went to Askins’s last known address at East Madison Street. While at ⁸² that residence the three men “learned that Mr. Askins was no longer residing at the Madison Street address.” They were advised by a female that Askins “was presently staying at 924 Abbott Court, which is also located in Baltimore City.” No further details were provided regarding what relationship, if any, that woman may have had to Askins. Herd and his companions then went to 924 Abbott Court in an attempt to locate Askins.

The men knocked on the door of the residence but no one answered. According to Herd, the men could hear sounds of a radio coming from within the house and “the blinds at the second floor window showed signs of movement.” At that point Herd and his companions forcibly entered the residence by breaking the lock off the front door with an axe. After entry and a sweep of the premises, the men realized that no one was inside the residence. Ms. Louise Holland, a resident of 926 Abbott Court, heard banging at her window on the evening of 9 August 1996.

When she looked outside she noticed a white male walking out of her yard. Ms. Holland continued to watch as the four men broke down the door of 924 Abbott Court with an axe. During the course of the forcible entry into 924 Abbott Court, Ms. Michelle Reed, the lawful resident of that address, returned home with two of her children. On approaching her residence, Ms. Reed was informed by neighbors that the police were in her house.

She then noticed that there were men in her home. At that point one of the men asked Ms. Reed to come inside the residence and told her they had some questions. According to Ms. Reed, she requested from the men both identification and a search warrant, but they provided her with neither. Instead, they informed her only that they were “from the fugitive unit.” Ms. Reed noticed that the men were armed and that at least one of the men was wearing a bullet proof vest.

Ms. Reed was then presented with a photograph of Askins and asked whether she knew him. She replied that she did not. By that point, Ms. Reed was visibly upset, but the men continued to search her residence. At some point during the encounter, one of the men asked Ms. Reed how much she paid for day care services for her ⁸³ children.

When she replied to his question, the man offered her that amount of money. Ms. Reed refused to take it. Ms. Reed told the men that she was going to call an attorney and the men departed. Because she was under the mistaken impression that the men who had been in her house were police officers, she called the Police Department to report that one of the “officers” had offered her a bribe (in attempting to give her money for day care services).

When the police arrived they surveyed the damage done by the bail bondsmen. They also learned that no search warrant had been executed for that particular address on that day. Later that evening, one of Ms. Reed’s neighbors saw Herd at a gas station, realized that he was the same man who had broken into Ms. Reed’s home, and recorded the license plate number of his vehicle. Thereafter, Courtside was contacted regarding the incident and further police investigation led to the ultimate arrest of Herd, Parsons, and Weiner. 1 Approximately two-and-one-half weeks later during an interview at the State’s Attorney’s office, Parsons admitted to having broken the lock of Ms. Reed’s door with an axe.

Parsons, however, would provide no detail about the woman who had given the men the information that Askins could be found at 924 Abbott Court. Although those facts themselves were not disputed, what was very hotly disputed was whether those facts could support a conviction for burglary in the fourth degree. Fourth-Degree Burglary The offense which, since the recodification of the various burglary laws by Ch. 572 of the Laws of 1994, is now called burglary in the fourth degree embraces four varieties of proscribed conduct. That variety involved in the present case is spelled out by Art. 27, § 32(a)(1), 2 which provides: ⁸⁴ A person may not break and enter the dwelling of another.

The facts set out in the agreed statement unequivocally established the actus reus of fourth-degree burglary. The structure at 924 Abbott Court was indisputably a dwelling. Its lawful residents were indisputably Ms. Michelle Reed and two of her children. From the point of view of the appellant, therefore, 924 Abbott Court was indisputably the dwelling of another.

When the appellant and his three companions broke down the door with an axe, that clearly qualified as a breaking. When they subsequently entered 924 Abbott Court, that unquestionably constituted an entering. Indisputably, the appellant broke and entered the dwelling of another. At serious issue, however, is whether the statement of facts establishes the necessary mens rea to support the appellant’s conviction.

That raises the question of what precisely is the mens rea of that variety of fourth-degree burglary spelled out by § 32(a)(1). 3 The Mens Rea of Fourth-Degree Burglary Three opinions by the Court of Appeals and by this Court have, in combination, thoroughly examined the mens rea of fourth-degree burglary of the breaking and entering variety, although they have not exhausted all of the procedural issues involved in the proof of that mens rea. The three cases, in ⁸⁵ order of their being decided, are Bane v. State, 73 Md.App. 135 , 583 A.2d 309 (1987); Warfield v. State, 315 Md. 474 , 554 A.2d 1238 (1989); and Green v. State, 119 Md.App. 547 , 705 A.2d 133 (1998). A. The Absence of Any Required Specific Intent: The most prominent characteristic of the mens rea of that variety of fourth-degree burglary dealt with by § 32(a)(1) is that it creates a mere general-intent and not a specific-intent crime. That conclusion inexorably follows from looking at the four corners of the statute itself.

Section 32(a)(1) expressly prohibits the breaking and entering of the dwelling of another and makes no mention of any specific intent that must accompany the breaking and/or entering. As in the ease of any statutory crime, a special mental element, particularly a specific intent, would have to be expressly spelled out. None has been. The same conclusion — to wit, that a fourth-degree breaking and entering requires no specific intent — follows from looking at the whole family of offenses covered by the reorganized and newly codified subtitle “Burglary and Related Offenses” and then looking at the special place of § 32(a)(1) within the larger legislative scheme.

Section 35B (c) and (e) directs particular attention to the relationship among § 29 (first-degree burglary), § 31 (third-degree burglary), and § 32(a)(1) (fourth-degree burglary). Those subsections of § 35B expressly state, with respect to those three offenses involving the breaking and entering of a dwelling, that § 29 is the greater inclusive offense, that § 31 is the intermediate included and/or inclusive offense, and that § 32(a)(1) is the lesser included offense. 4 Each of those three escalated criminal proscriptions prohibits the breaking and entering of the dwelling of another. The actus reus of all three crimes is exactly the same. The only differences are in the mens rea.

The differences among the ⁸⁶ three offenses involve only the existence of a particular specific intent or the absence of any such specific intent. Section 29 involves the specific intent to commit theft or a crime of violence in the burglarized dwelling. When that specific intent is present, the crime is a felony with a maximum term of imprisonment of twenty years. Section 31, the next step down on the ladder of blameworthiness, involves the lesser required specific intent to commit any crime in the burglarized dwelling.

When such lesser specific intent is present, the crime is still a felony but is subject to a maximum term of imprisonment of only ten years. Section 32(a)(1), the final step down on the ladder of blameworthiness, does not require a specific intent to commit a crime of any sort in the burglarized dwelling or to do anything else for that matter. For that reason, the offense is only a misdemeanor subject to a maximum term of imprisonment of but three years. The absence of a specific intent is the only thing that distinguishes § 32(a)(1) from § 31. 5 Without that distinction, the legislative scheme would be an absurdity.

A third, and arguably redundant, proof of this less demanding mens rea — to wit, the lack of a specific intent requirement — can be found in the legislative history of the predecessor statute of what is now § 32(a)(1). That predecessor criminal provision was, prior to 1994, § 31A. It was enacted by Ch. 661 of the Laws of 1973. Judge Bloom thoroughly traced its legislative history for this Court in Bane v. State, 73 Md.App. 135, 147-52 , 533 A.2d 309 (1987).

He referred to the then new statute prohibiting the breaking and entering of a dwelling as a “late starter in the burglary field.” 6 ⁸⁷ The motivation for the new 1973 statute was the desire of the State’s Attorneys of Maryland to have a lesser crime they could tactically fall back on in instances where they could readily prove the actus reus of breaking and entering but encountered difficulties of proof when it came to the mens rea of a particular specific intent. Judge Bloom explained, 73 Md.App. at 148-49 , 533 A.2d 309 : In 1973, the Maryland Senate Judicial Proceedings Committee received testimony from the State’s Attorneys of various counties and Baltimore City that there was a need for a burglary offense of less severity than common law burglary or any of the then applicable statutory burglary-type crimes. The existence of such an offense, it was argued, would facilitate prosecutors in the handling of cases in which the felonious intent, a required element of common law burglary and all of the then statutory burglary offenses, of the intruder could not be clearly shown. Senate Bill 218 was drafted and submitted to the 1973 General Session with the intent of creating a criminal offense to comply with the State’s Attorneys’ wishes.

Legislative Council of Maryland, Report to the General Assembly of 1973, at 122, item no. 187 (1973). See also, 1973 Journal of Proceedings of the Senate of Maryland — Regular Session 136. Senate Bill 218 was passed as introduced, without any amendments, by both houses of the Maryland General Assembly. See, 1973 Journal of Proceedings of the Senate of Maryland — Regular Session 136, 255, 274; 1973 Journal of Proceedings of the House of Delegates of Maryland — Regular Session 280, 2444, 2593.

Governor Marvin Mandel signed the enrolled bill into law on May 24, 1973. 1973 Md.Laws 661. That law read, as it does now, as follows: Any person who breaks and enters the dwelling house of another is guilty of a misdemeanor and, upon conviction thereof, shall be sentenced to imprisonment for a term of not more than three (3) years or a fine of not more than five hundred dollars ($500.00) or both. ⁸⁸ McLCode Ann. art. 27, § 31A (Repl.Vol.1982, Cum.Supp. 1987). (Footnote omitted; emphasis supplied). Judge Bloom characterized the new law as one involving an actus reus but no mens rea beyond the ordinary general intent to do the acts that constituted the actus reus: The gravamen of the offense is the breaking and entering of the dwelling of another.

To be convicted of statutory breaking and entering, as is evident from the legislative intent of the bill, no intent to commit a felony or to steal personal property need be shown. See, R. Gilbert & C. Moylan, Maryland Criminal Law — Practice and Procedure, § 11.3 (1983), see also, Moylan, supra, 4 U.Balt.L.Rev. 29, 31 (1974). The misdemeanor crime of statutory breaking and entering, therefore, is a nebulous one as it relates to the intent of the perpetrator, since no showing of any particular intent is required for a conviction under art. 27, § 31A. All that must be shown is that the perpetrator broke and entered a dwelling place of another. 73 Md.App. at 149-50 , 533 A.2d 309 (emphasis supplied).

In explaining in Bane why the breaking and entering of a dwelling was neither an infamous crime nor a crimen falsi nor a crime involving moral turpitude, this Court squarely held that, in terms of broad categories at least, the offense was a general-intent crime: Since misdemeanor breaking and entering involves no felonious or larcenous intent, it is. a crime of general intent that includes within its scope a variety of acts, including some that are reckless or negligent. A conviction for that offense may result either from a well-planned scheme — or merely rash, impetuous conduct of a defendant. 73 Md.App. at 150 , 533 A.2d 309 (citation omitted; emphasis supplied). See also Hawkins v. State, 291 Md. 688, 694 , 436 A.2d 900 (1981). ⁸⁹ B. General Intent Includes Awareness That Intrusion Is Unwarranted: Even a general intent, however, may involve something more than the mere voluntary doing of a physical act. In Warfield v. State, 315 Md. 474 , 554 A.2d 1238 (1989), the Court of Appeals placed its imprimatur on Bane v. State and then, in a thorough analysis by Judge Orth, built upon it.

In Warfield , to be sure, the Court of Appeals was literally dealing with what was then Art. 27, § 31B, proscribing the breaking and entering of a storehouse. It pointed out, however, that the mens rea of storehouse-breaking and-entering is indistinguishable from the mens rea of dwelling-house-breaking-and-entering. As a result of the recodification of 1994, what had been § 31B is now § 32(a)(2), just as what had been § 31A is now § 32(a)(1). In the course of explaining why the mens rea of breaking and entering a storehouse (what was then § 31B) was precisely the same as the mens rea element of breaking and entering a dwelling (what was then § 31A), Judge Orth traced briefly the legislative history of § 31B.

As earlier noted in Bane, § 31A (covering dwellings) had been placed in Article 27 in 1973 at the request of the Maryland State’s Attorneys to facilitate the prosecution of those who break and enter dwellings in circumstances where it might be difficult to prove what, if any, further criminal intent those trespassers may have harbored. It was soon noted, however, that § 31A’s limited coverage, restricted as it was to dwellings, left an obvious gap in the law. That gap was filled six years later by Ch. 598 of the Laws of 1979, which created § 31B. Judge Orth detailed the legislative history, 315 Md. at 497-98 , 554 A.2d 1238 : Section 31B was designed to fill the gap in § 31A by going beyond a dwelling house and including a bevy of structures and a boat.

It was proposed in 1979 by H.B. 986 and assigned to the Judiciary Committee. Its progress through the legislative process to enactment was uneventful. Amendments from time to time did no more than add structures to be covered. An examination of the legislative ⁹⁰ bill file reveals what prompted the introduction of the bill.

A handwritten note, undated and unidentified reads: This bill makes it a crime to break into any of the listed structures. This fills a gap in the law created by the fact that Sec. 31A of the code makes it a crime to break into a dwelling house — but the courts have said that an unoccupied beach cottage is not a dwelling house. (Emphasis supplied). After noting “that all we have said about § 31A with respect to intent applies with equal force to § 31B,” 315 Md. at 497 , 554 A.2d 1238 , Judge Orth went on to reaffirm that both crimes were merely general-intent rather than specific-intent offenses: [CJommon law burglary and the various statutory burglary and breaking offenses, except for those crimes created by §§ 31A and 31B, require a specific intent beyond the general intent to break a structure.

This is so be they felonies or misdemeanors and whether they speak of a breaking and entering or merely a breaking. Sections 31A and 31B, however, do not have a specific intent as an element. 315 Md. at 495 , 554 A.2d 1238 (emphasis supplied). The similarity of the language of the two statutes and their legislative history clearly show that § 31B, like § 31A, does not embrace a specific intent but does require a general criminal intent to break and enter. 315 Md. at 498 , 554 A.2d 1238 (footnote omitted; emphasis supplied). That, of course, does not end the inquiry.

A simple black-or-white classification of the mens rea as one involving a specific intent or one involving only a general intent is but a part of the necessary examination. An involuntary act — a muscular spasm or a fall, for example — -would not render one guilty even of a crime malum prohibitum let alone a crime malum in se. Even a crime malum prohibitum requires a voluntary act. Mens rea literally means “a guilty mind.” With respect to crimes mala in se, to wit, to crimes involving ⁹¹ a mens rea, even general intent may mean more than merely voluntarily doing the act that constitutes the actus reus.

Judge Orth began his further examination by stating that § 31A defined a crime that was malum in se rather than merely malum prohibitum and that, as such, the mens rea must, indeed, be criminal: A criminal intent requirement is usually implied in the case of a statutory offense which is malum in se. The general rule is that when an act malum in se is made a crime by statute, the statute is to be construed in the light of the common law, and the existence of criminal intent is essential. 315 Md. at 497 , 554 A.2d 1238 . In explaining why §§ 31A and 31B were mala in se, thus requiring a criminal (albeit general) intent, the Court of Appeals began its analysis by pointing out that the two offenses were, in fact, specific instances of the broader common law crime known generally as “criminal trespass,” notwithstanding the failure of the two statutes even to mention the word “trespass.” Sections 31A and 31B of Article 27 create the misdemeanors of criminal trespass. Although not expressly so labeled and not included in the group of crimes under the subtitle “Trespass” in Article 27, §§ 31A and 31B proscribe the intrusion upon the property of another with the general intent to break and enter but without the specific intent to commit a crime therein.

This is the hallmark of a criminal trespass.... Sections 31A and 31B clearly fall within the criminal trespass structures of other states, viewed schematically. 315 Md. at 498 , 554 A.2d 1238 (footnote and citations omitted; emphasis supplied). By looking then to criminal trespass law generally for guidance, the Court further concluded that an integral aspect of the mens rea was an awareness that the intrusion was unwarranted: ⁹² The common requirement of criminal trespass offenses is that the actor be aware of the fact that he is making an unwarranted intrusion. Id.

The Warfield opinion found persuasive § 221.2(1) of the' Model Penal Code, which makes an intrusion culpable when the intruder knows that he is not licensed or privileged to intrude. The Warfield opinion quoted with approval the Commentary to that section, as it explained the purpose of the awareness requirement: The knowledge requirement is designed primarily to exclude from criminal liability both the inadvertent trespasser and the trespasser who believes that he has received an express or implied permission to enter or remain. 2 Model Penal Code and Commentaries § 221.2, comment 2(a), at 88 (1980). Judge Orth explained that without the awareness requirement, §§ 31A and 31B would be, in effect, strict liability crimes, able to ensnare with undiscriminating tentacles all sorts of actors whom the Legislature never intended to treat as criminal: The literal meaning of §§ 31A and 31B could indicate' that the legislature intended to impose strict liability on a person who intrudes upon the property of another. But when we apply the precepts of statutory construction and examine the literal language of the statutes in the light of their legislative history, their affinity to common law burglary and the statutory burglary and statutory breaking and entering offenses, and their status as criminal trespass offenses, we are satisfied that the legislature intended that the intrusion, to be culpable, be with an awareness that it was unwarranted — lacking authority, license, privilege, invitation, or legality.

To make culpable the inadvertent trespasser and the trespasser who entertains a reasonable belief that his conduct was proper would be unreasonable, illogical, ⁹³ inconsistent with common sense, and contrary to the interests of justice. 315 Md. at 500 , 554 A.2d 1238 . What Bane and Warfield held with respect to the mens rea of former §§ 31A and 31B applies, of course, with unattenuated vigor to what is now § 32(a)(1) and (2). The mens rea of these two instances of criminal trespass, now known in Maryland as fourth-degree burglary, includes no specific intent. The general intent to effectuate the actus reus of the trespass, however, includes an awareness that the trespass is unwarranted.

Thus, a reasonable belief that the trespass is authorized, licensed, or privileged is a complete defense to the crime. This fully answers the first question that we posed at the outset of this opinion: What precisely is the mens rea of fourth-degree burglary and what is the impact on that mens rea of a defendant’s reasonable belief that he was entitled to make the intrusion in question? Procedural Questions Still Unresolved by Warñeld The substantive content of the mens rea of these two varieties of fourth-degree burglary, however, is only a part of what we need to know. Knowing what the probandum is does not tell us who has to prove it.

Must the State, in a vacuum, prove a negative, to wit, that the defendant lacked the reasonable belief that his intrusion was warranted? Or must the defendant prove affirmatively that he harbored such a reasonable belief? If the fact finder is in a state of equipoise on the issue, who wins the tie? If neither the State nor the defendant offers any evidence at all on the subject, who loses that classic nothing-to-nothing tie?

There are at least three plausible procedural and evidentia-ry modalities for handling the issue, but Warfield does not tell us which of these we should adopt. ⁹⁴ A. A Reasonable Belief As An Affirmative Defense: At one end of the burden-of-proof spectrum, the reasonable belief that an intrusion was warranted could readily be treated as a full-blown affirmative defense, in the most classical sense of that term. The Model Penal Code, to which the Warfield Court looked for guidance on this issue, has so treated the defense, as have several of the states. Judge Orth noted in this regard, 315 Md. at 499 , 554 A.2d 1238 : The Model Penal Code provides that it is an affirmative defense to prosecution for criminal trespass if “the actor reasonably believed that the oumer of the premises ... would have licensed him to enter____” Section 221.2(3)(c), at 144. The defense is available if the actor’s belief is reasonable, that is, a belief which the actor is not reckless or negligent in holding. 2 Model Penal Code and Commentaries § 221.2, comment (2)(a), at 88.

The comment notes that several states have adopted the Model Penal Code language to define the culpability for criminal trespass [and] several [states] have adopted the affirmative defense provision. (Emphasis supplied). The label of affirmative defense is not some passing reference or casual allusion to any exculpatory theory advanced by the defense. It is a formal legal classification or category with very significant procedural consequences. 7 A ⁹⁵ classic affirmative defense is something that the defendant must prove, not something that the State must disprove.

With respect to such an affirmative defense, there is allocated to the defendant both 1) the burden of initial production and 2) the burden of ultimate persuasion. The burden of production necessarily implies the risk of non-production. Unless the defendant satisfies the burden of production by having the evidence generate a genuine jury issue or prima facie case with respect to the defense, the defendant suffers what is, in effect, a directed verdict against him on that issue. The defense will be treated as if it is not in the case.

There will be no jury instruction with respect to it and it would be improper for defense counsel to argue with respect to it. Conversely, there is on the State no burden of production and, therefore, no risk of non-production. If the State offers no evidence with respect to the defense, as tactically it should not in such a procedural context, the State will not suffer a judgment of acquittal, at least not at the end of the State’s case. 8 ⁹⁶ Even when a defendant has successfully carried the burden of initial production with respect to a classic affirmative defense, the defendant still bears the burden of ultimate persuasion. The jury will be informed that the defendant has presented evidence of the affirmative defense.

The jury will be further informed that the defendant has the burden of persuading them by a preponderance of the evidence 9 both 1) that the defendant SUBJECTIVELY believed that his intrusion was warranted and 2) that such belief was OBJECTIVELY reasonable. If the jury is in a state of doubt, the defendant will ipso facto have failed to carry his burden of persuasion and the defense must fail. With respect to a full-blown affirmative defense, the tie goes to the State. A classic illustration of a true affirmative defense and its attendant procedures is Maryland’s handling of the defense of Not Criminally Responsible.

See Health Gen.Code Ann. § 12 — 109(b) (Supp.1994); State v. Marsh, 337 Md. 528, 539 , 654 A.2d 1318 (1995); Treece v. State, 313 Md. 665, 684 , 547 A.2d 1054 (1988); Hoey v. State, 311 Md. 473, 491 , 536 A.2d 622 (1988); McCloud v. State, 77 Md.App. 528, 530-33 , 551 A.2d 151 , aff'd in part, rev’d in part, 317 Md. 360 , 564 A.2d 72 (1989). Both burdens of proof are squarely on the defendant. Supreme Court decisions that have approved as constitutional classic affirmative defenses that impose on a defendant both the burden of initial production and the burden of ultimate persuasion include Leland v. Oregon, 343 U.S. 790 , 72 ⁹⁷ S.Ct. 1002, 96 L.Ed. 1302 (1952); Rivera v. Delaware, 429 U.S. 877 , 97 S.Ct. 226 , 50 L.Ed.2d 160 (1976); Patterson v. New York, 432 U.S. 197 , 97 S.Ct. 2319 , 53 L.Ed.2d 281 (1977); and Martin v. Ohio, 480 U.S. 228 , 107 S.Ct. 1098 , 94 L.Ed.2d 267 (1987). B. The Lack of a Reasonable Belief As An Affirmative Element: At the far end of the burden-of-proof spectrum, there could conceivably be imposed on the State both the burden of initial production and the burden of persuasion with respect to the mental element of the defendant’s awareness that the intrusion was unwarranted.

The State would thus bear the full burden of proving in a vacuum that particular element of the crime as completely as it bears the burden of establishing any of the physical elements, such as 1) the breaking, 2) the entering, or 3) the status of the place entered as the dwelling of another. Under such a procedural regime, if the police, responding to a burglar alarm at 3 A.M., were to discover the door of a residential home broken in and were to apprehend a total stranger to the residents halfway up the stairs leading to the bedrooms, but no evidence from either party gave a clue as to what the intruder was doing there or why, the State, as a consequence of the risk of non-production, would suffer a judgment of acquittal at the end of the State’s case. Such a burden of proving a negative, however, to wit, of proving what was NOT in the defendant’s mind, has not been imposed on the State. As a practical matter, only an infinitesimal percentage of fourth-degree burglars even assert a belief that the intrusion was warranted.

To require the State to disprove this or any of a number of other possible claims, to wit, to require the State, in a vacuum, to disprove a virtually open-ended number of arcane defenses that arise only on rare occasions would be calamitous. It would have the effect of introducing all of the rare and esoteric defenses into every case. When the State proves that a defendant has been ⁹⁸ apprehended at 3 A.M. inside the dwelling of another, it would be absurd to require the State, in the absence of any genuine issue in those regards, further to prove that the defendant was NOT insane, that the defendant had NOT been coerced, that the defendant had NOT been entrapped, that the defendant did NOT reasonably believe he was entitled to enter the premises, etc. In the context of a prosecution for unlawful homicide, this Court fully explored, in Gilbert v. State, 36 Md.App. 196, 199-200 , 373 A.2d 311 (1977), the policy reasons for relieving the State of the “Mission Impossible” of disproving, in a vacuum, an open-ended list of conceivable defenses: An example may serve to illustrate the absurdity of requiring anticipatory disproof of every consideration that might lower a homicidal mens rea. Posit a bank robber, armed and wearing a ski mask, apprehended at the bank door as a teller lies dead inside.

It is hypothetically conceivable that the man in the ski mask is a trusted governmental agent who has, in the nick of time, saved the country from an archenemy, cleverly disguised as a bank teller. It is conceivable, but it is not likely. Indeed, it is so unlikely that we do not require the State to disprove, as a matter of course, all such possibilities in advance as an element of its case. The catalog of things to be disproved would be endless.

The State would have to prove that the bank robber was not a lawful executioner, a policeman in pursuit of a fleeing felon, a soldier in a time of war, a threatened victim killing the teller in self-defense, the cleaner of a gun which went off by accident, a hot-blooded victim beaten by the teller, a hot-blooded combatant involved in a mutual affray with the teller, an outraged husband cuckolded by the teller, someone killing in imperfect self-defense, someone killing under imperfect duress, etc., ad infinitum. There are a number of reasons why we do not require such anticipatory disproof by the State, not the least of which is the devastating impact it would have upon judicial econo ⁹⁹ my. At the most fundamental level, however, we do not require it, because to require it would be an absurdity. (Emphasis supplied).

For precisely those reasons, we hold that the burden of proof in both of its aspects, initial production and ultimate persuasion, is not on the State to prove the lack of a reasonable belief as a necessary element of the crime. Neither Warfield v. State, 315 Md. 474 , 554 A.2d 1238 (1989), nor Green v. State, 119 Md.App. 547 , 705 A.2d 133 (1998), remotely suggested that any such burden — particularly the burden of initial production — rested on the State. In both of those cases, the defense satisfied the burden of production by generating a genuine jury issue (a prima facie case) with respect to the defendant’s harboring a reasonable belief that he was entitled to intrude into the premises in question. In neither case did the State suffer a judgment of acquittal at the end of the State’s case as a sanction for initial non-production.

Indeed, the Green case went so far as to suggest that the burdens of both production and persuasion would be on the defendant as an affirmative defense: It follows that, in a prosecution for criminal trespass, “it is an affirmative defense ... if ‘the actor reasonably believed that the owner of the premises ... would have licensed him to enter ....’” 119 Md.App. at 560 , 705 A.2d 133 (emphasis supplied). C. The Lack of a Reasonable Belief As A “Bursting Bubble” Presumption: The third possible procedural modality is a compromise between the first two. In order not to impose on the State the costly and inefficient burden of disproving in a vacuum rarely asserted defenses, the burden of initial production with respect to any such defense is allocated to the defendant. In those cases, however, where a defendant is able to generate a genuine jury issue with respect to a defense such as the reasonable belief that an intrusion was warranted, the burden then shifts to the State to prove the challenged ¹⁰⁰ mental element as surely as the State is required to prove the routine physical elements of the crime.

In effect, the burden shifts to the State to disprove the defense. The procedural device that effectuates this compromise is the Thayer-Wigmore 10 or so-called “bursting bubble” presumption. By placing the burden of initial production on the defendant with respect to relatively rare and essentially esoteric defenses, the presumption relieves the State of the inefficient and unduly onerous obligation to prove a series of negative propositions, most of which would be completely immaterial in any given case. W.R. LaFave and A.W. Scott, 1 Substantive Criminal Law (1986), at 72, well explains the reason for allocating to the defense this burden of raising an issue: Experience shows that most people who commit crimes are sane and conscious; they are not compelled to commit them; and they are not so intoxicated that they cannot entertain the states of mind which their crimes may require.

Thus it makes good sense to say that if any of these unusual features are to be injected into the case, the defendant is the one to do it; it would not be sensible to make the prosecution in all cases prove the defendant’s sanity, sobriety and freedom from compulsion. (Footnote omitted). The Thayer-Wigmore presumption is also called the “bursting bubble” presumption because once the defense has produced even a prima facie rebuttal of the presumption, the bubble bursts and the presumption totally disappears from the case. This is, generally speaking, the limited way in which a presumption may operate in favor of the State in a criminal case.

In a civil case, by contrast, a presumption may, even ¹⁰¹ after a prima facie rebuttal, remain in a case as the equivalent of an item of evidence entitled to some weight and as the subject of a jury instruction. See, e.g., Plummer v. Waskey, 34 Md.App. 470, 481, 484-86, 368 A.2d 478 (1977). 11 Lynn McLain, Maryland Evidence (1987), § 300.7, p. 173 n. 17, makes reference to the Maryland criminal practice of allocating to a defendant the burden of initial production with respect to a number of defenses: In Maryland, the defendant bears the burden of production of evidence in order to make the following defenses issues in the case: self-defense, accident, misadventure, entrapment, coercion or duress, intoxication by alcohol or drugs, and necessity, as well as theories of mitigation, including hot-blooded response to legally adequate provocation. In a criminal case, the jury will never hear of a “bursting bubble” presumption. If the defense does not meet the burden of generating a genuine jury issue by way of rebutting the presumption, the issue will never go to the jury.

Theoretically, the State will have proved the mental element in question, but it will have done so sub silentio and by operation of law. If, on the other hand, the defendant does generate a genuine issue by way of rebutting the presumption, the presumption will utterly disappear from the case and the jury will never hear of it. The State will then shoulder the burden of proving the mental element, thus thrown into doubt, by the same burden of persuasion that is required to prove any other element of the crime. In Evans v. State, 28 Md.App. 640, 722-23 , 349 A.2d 300 (1975), aff'd, State v. Evans, 278 Md. 197 , 362 A.2d 629 (1976), we explained the operation in a criminal case of a Thayer-Wigmore presumption: ¹⁰² A presumption in the Thayer-Wigmore tradition simply places upon a defendant the onus of producing evidence, or of relying at his risk upon evidence produced by the State, sufficient to generate a jury issue with respect to a particular defense.

Once the issue is generated by evidence, the presumption totally dissipates (the bubble bursts) and the State assumes the burden of persuasion on that issue beyond a reasonable doubt. Since the presumption has totally served its purpose once a jury issue has been created, the jury never hears of the presumption. If the issue has not been generated by evidence, the jury never receives the issue. Once the issue is generated, the jury gets the issue with the burden of persuasion thereon falling upon the State.

The preliminary skirmishing on the generation vel non of the jury issue is of no concern to the jury itself. The possibly critical advantage in a criminal case of placing on a defendant only the burden of initial production but not the burden of ultimate persuasion with respect to even rarely asserted defenses is that it avoids any due process problem posed by such cases as In re Winship, 397 U.S. 358 , 90 S.Ct. 1068 , 25 L.Ed.2d 368 (1970) and Mullaney v. Wilbur, 421 U.S. 684 , 95 S.Ct. 1881 , 44 L.Ed.2d 508 (1975). Albeit not always, the rarely asserted defenses, when legitimately in issue, frequently operate to negate part of the necessary mens rea of the crime. When that is the case, it is unconstitutional to relieve the State of its due process burden of proving each and every element of the crime beyond a reasonable doubt.

A mere Thayer-Wigmore presumption, however, does not run afoul of the Due Process Clause. As this Court very carefully explained in Evans v. State, 28 Md.App. at 724-25 , 349 A.2d 300 : Maryland has traditionally placed upon a defendant, by the device of giving the State the benefit of a presumption to the contrary, the obligation to see that there is produced sufficient evidence to generate a jury question on such issues as intoxication, self-defense, and entrapment. We are persuaded that nothing in Mullaney v. Wilbur adversely affects in any way the status of presumptions in ¹⁰³ this limited function of requiring that there be produced sufficient evidence to generate a jury issue. The holding of Mullaney v. Wilbur was very careful to add a qualifying clause, at [ 421 U.S. 704 , 95 S.Ct. 1892 ] 44 L.Ed.2d 522 : “We therefore hold that the Due Process Clause requires the prosecution to prove beyond a reasonable doubt the absence of the heat of passion on sudden provocation when the issue is properly presented in a homicide case.” Mullaney v. Wilbur went on very explicitly, at [421 U.S. 702, 95 S.Ct. 1891 ] 44 L.Ed.2d 521 , no. 28: “Many States do require the defendant to show that there is ‘some evidence’ indicating that he acted in the heat of passion before requiring the prosecution to negate this element by proving the absence of passion beyond a reasonable doubt ...

Nothing in this opinion is intended to affect that requirement.” (Citations omitted; emphasis in original). See also Lynn McLain, Maryland Evidence (1987), § 300.5, pp. 150-58. D. The Procedural Posture in Maryland of the Reasonable Belief Defense: In cases charging the fourth-degree burglary of a structure, the defense that the alleged intruder reasonably believed he was entitled to make the intrusion is relatively rare. For reasons already fully discussed, we hold that there is no burden on the State to disprove, in a vacuum, the existence of such a reasonable belief.

The State enjoys the benefit of a Thayer-Wigmore presumption that an intruder does not possess such a reasonable belief. If that presumption is unrebutted, no issue in that regard will be submitted to the jury. Because, however, it is part of the mens rea of the crime that the intruder be aware that the intrusion is unwarranted, Warfield v. State, 315 Md. 474, 500 , 554 A.2d 1238 (1989), it would be unconstitutional to treat the defense as a classic affirmative defense and to impose on the defendant the burden of ultimate persuasion with respect to his reasonable ¹⁰⁴ belief in that regard. Unlike the New York statutory defense of extreme emotional disturbance dealt with in Patterson v. New York, 432 U.S. 197 , 97 S.Ct. 2319 , 53 L.Ed.2d 281 (1977), Warfield makes it clear that the awareness that an intrusion is unwarranted is a mental element necessary to constitute the offense of fourth-degree burglary of a structure: [ W]e are satisfied that the legislature intended that the intrusion, to be culpable, be with an awareness that it was unwarranted — lacking authority, license, privilege, invitation, or legality. 315 Md. at 500 , 554 A.2d 1238 .

When, therefore, the defendant meets his burden of production by generating a genuine jury issue as to his reasonable belief that the intrusion was warranted, the Thayer-Wigmore presumption is dissipated — the bubble bursts— and the State assumes the burden of persuading the fact finder beyond a reasonable doubt as to the absence of such a reasonable belief. Although Green v. State, 119 Md.App. 547 , 705 A.2d 133 (1998), did not expressly make reference to the Thayer-Wigmore presumption as the way to handle the reasonable belief defense to fourth-degree burglary, both our analysis and our ultimate decision in that case were completely compatible with the use of such a modality. The defendant was there convicted of fourth-degree burglary by virtue of having broken and entered the home of his former girlfriend and the mother of his child. He took the stand in his own defense, however, and clearly established a prima facie case that he reasonably believed that he was entitled to enter the premises: The defense contended that appellant reasonably believed he had permission to enter McDougald’s residence.

It was undisputed, for example, that McDougald was the mother of appellant’s young son, and McDougald conceded that appellant had previously lived with her. According to appellant, he and McDougald had an “on and off’ relationship that continued for about “ten and a half years.” Appellant also testified that he typically “would come up there and stay ¹⁰⁵ with [McDougald] maybe a couple of days a week----”, and that he had even stayed with McDougald the night before the incident. Appellant also claimed he had left his work tools at McDougald’s residence on a prior occasion, and had previously gained access to her residence by entering the basement window. Moreover, on the morning in question, he claimed he needed his tools for work.

Further, appellant implied