Holbrook v. State

HARRELL, Judge. Following a non-jury trial in the Circuit Court for Wicomico County, Reginald T. Holbrook (Petitioner) was convicted of first degree arson, eight counts of reckless endangerment, and making a threat of arson. He was sentenced to: (a) 30 years imprisonment (22/é of which were suspended) for the first degree arson conviction; (b) five years for the first reckless endangerment conviction (to run consecutive to the arson sentence); (c) five years for each of the remaining seven reckless endangerment convictions (to run consecutive to the arson sentence, but concurrent to each other and the first reckless endangerment sentence); and, (d) 10 years for the threat of arson conviction (to run concurrent to the arson sentence). On direct appeal to the Court of Special Appeals, Petitioner argued that the trial court erred at sentencing in not merging the convictions for reckless endangerment with the conviction for arson.

In a reported opinion, the intermediate appellate court affirmed the Circuit Court’s judgments. Holbrook v. State, 133 Md.App. 245 , 754 A.2d 1103 (2000). We granted Petitioner’s writ of certiorari, 1 which posed the following question: In this reported opinion on an issue of first impression, did the Court of Special Appeals err in holding that a conviction and (consecutive) sentence for reckless endangerment did not merge into the conviction and sentence for first degree arson, where the reckless endangerment was the creation of risk of harm to persons inside a dwelling where defendant ³⁶¹ set a fire, and the first degree arson was the setting of the fire at the dwelling. I. Pursuant to Maryland Rule 8-501(g), 2 the parties agreed to adopt the statement of facts contained in the opinion of the Court of Special Appeals as the statement of undisputed facts in this Court.

There is no significant dispute about the facts in this case. In 1998, Alisha Collins leased a residence at 230 Ohio Avenue in Salisbury, Maryland. Between April and May of that year, nine people lived there: Alisha Collins, her husband, and their three-year old daughter; Alisha Collins’s mother and her six-year old twins; Alisha Collins’s aunt, DeKota Collins, and her three-year old daughter; and, Mr. Holbrook, who was DeKota Collins’s boyfriend. Mr. Holbrook resided at the home for several months and contributed to the rent.

DeKota Collins was the representative payee for Mr. Holbrook’s social security payments. On May 1, 1998, Mr. Holbrook and DeKota Collins had an argument over his money during which he made a menacing gesture toward her with a screwdriver. Alisha Collins called the police. The responding officer told Mr. Holbrook that he would have to leave and not to return to the premises.

The officer stayed while Mr. Holbrook removed all of his belongings. Alisha Collins testified at trial that Mr. Holbrook was “really mad.” About an hour after leaving the premises, Mr. Holbrook returned and asked to speak to DeKota. She told him, “Reggie, I don’t want you no more. I just want you to leave me alone and don’t come back here no more.” Mr. Hol ³⁶² brook sat on the porch and cried.

About one hour later, Alisha Collins and her husband left the premises with Mr. Holbrook. The three shared a cab ride, during which Mr. Holbrook repeatedly said “I’m going to get all of you.” On May 6, 1998, Alisha Collins observed Mr. Holbrook walking back and forth across the street from her house. She testified that he said “I’ll burn this mother fucker up.” Over the objection of defense counsel, Alisha Collins testified that a week before Mr. Holbrook left the home, she overheard an argument between him and DeKota Collins during which Mr. Holbrook said “I’ll burn this mother fucker house down” and “I got people that can hurt you that live upstate.” On the evening of May 7, 1998, Mr. Holbrook came to the door of the home and asked to see DeKota Collins. Alisha Collins lied and said that she was not home.

Mr. Holbrook remained outside of the house for about 45 minutes calling DeKota’s name and saying that he wanted to talk to her. That night, Alisha Collins fell asleep on the living room sofa. Sometime after midnight, she awoke to the smell of smoke. She awoke her husband, who went out the back door and discovered a pillow burning on the back porch.

All of the occupants safely evacuated the house. Kevin Ward, a firefighter with the Salisbury Fire Department, testified that the flames from the burning pillow were about 6 to 12 inches high when he arrived, and that there were char marks on the threshold to the rear door and smoke in the basement. Alisha Collins testified that she saw Mr. Holbrook across the street 10 to 15 minutes after the fire was discovered. She told the police that Mr. Holbrook started the fire.

Mr. Holbrook was questioned by the police and by the fire marshal. He was subsequently arrested and charged with arson, reckless endangerment, and threats of arson. Holbrook, 133 Md.App. at 250-251 , 754 A.2d at 1105-1106 . On 29 April 1999, Petitioner was tried in a bench trial in the Circuit Court for Wicomico County.

The court found Petition ³⁶³ er guilty of one count of first degree arson, eight counts of reckless endangerment, 3 and one count of making a threat of arson. 4 At the 28 June 1999 sentencing proceeding, defense counsel requested that the trial judge merge the reckless endangerment convictions into the first degree arson conviction; the court declined. Petitioner received a 30 year sentence for the arson conviction, with all but 22jé years suspended. For the first reckless endangerment conviction, Petitioner was sentenced to five years, to run consecutive to the arson sentence. For each of the remaining seven convictions of reckless endangerment, Petitioner received five years, to run consecutive to the arson sentence, but concurrent to the first reckless endangerment sentence, as well as to each other.

On direct appeal to the Court of Special Appeals, Petitioner presented two questions: whether the trial judge erred in refusing defense counsel’s request to merge the reckless endangerment convictions into the first degree arson conviction; and, whether the trial judge erred in allowing the State to amend the criminal information immediately prior to trial, specifically, the date of the alleged arson threat, and then allowing testimony of threats made at times other than that originally charged. In a reported opinion filed on 1 July 2000, the intermediate appellate court, inter alia, affirmed the trial court’s refusal to merge the reckless endangerment convictions (concluding so after analysis under the required evidence test and the rule of lenity) with the arson conviction. Holbrook, 133 Md.App. at 258 , 754 A.2d at 1110 . We granted certiorari on 12 October 2000.

Holbrook v. State, 361 Md. 231 , 760 A.2d 1106 (2000). Petitioner contends that the Court of Special Appeals erred in holding that a conviction and consecutive sentence for reckless endangerment did not merge into the conviction and sentence for first degree arson, when the reckless endangerment was the cre ³⁶⁴ ation of risk of harm to persons inside a dwelling where Petitioner set a fire on a porch, and the first degree arson was the setting of the fire at the dwelling.

II

Petitioner argues that, under either the required evidence test or the rule of lenity, or for reasons of “fundamental fairness,” the reckless endangerment convictions and sentences should have merged into the arson conviction and sentence. Concluding that arson and reckless endangerment are separate and distinct crimes, we disagree with Petitioner’s assertion. For reasons we shall explain, we hold that, under the circumstances of this case, the Court of Special Appeals did not err when it affirmed the Circuit Court’s refusal to merge reckless endangerment with arson.

III

We reiterate that “the cardinal rule of statutory interpretation is to ascertain and effectuate the intention of. the legislature.” In re Anthony R., 362 Md. 51, 57 , 763 A.2d 136, 139 (2000) (quoting Oaks v. Connors, 339 Md. 24, 35 , 660 A.2d 423, 429 (1995)); Giant Food, Inc. v. Department of Labor, Licensing, and Regulation, 356 Md. 180, 188 , 738 A.2d 856, 860 (1999) (quoting Oaks, 339 Md. at 35 , 660 A.2d at 429 ). When striving to determine the legislative intent of any statute, we first examine the plain language of the statute. See In re Anthony R., 362 Md. at 57 , 763 A.2d at 139 . Ordinarily, we afford the words of the statute their natural and usual meaning in the context of the Legislature’s purpose and objective in enacting the statute.

See Roberts v. State, 361 Md. 346, 360 , 761 A.2d 885, 893 (2000) (citing Marriott Employees Fed. Credit Union v. Motor Vehicle Admin., 346 Md. 437, 445 , 697 A.2d 455, 458 (1997); Hunt v. Montgomery County, 248 Md. 403, 414 , 237 A.2d 35, 41 (1968)). Moreover, we should avoid “resorting to subtle or forced interpretations for the purpose of extending or limiting [the statute’s] operation.” Brown v. State, 285 Md. 469, 474-5 , ³⁶⁵ 403 A.2d 788, 791 (1979) (quoting Schweitzer v. Brewer, 280 Md. 430, 438 , 374 A.2d 347 (1977)) (citing Gietka v. County Executive, 283 Md. 24 , 387 A.2d 291 (1978); Mazor v. State, Dep’t of Correction, 279 Md. 355 , 369 A.2d 82 (1977); Howell v. State, 278 Md. 389 , 364 A.2d 797 (1976); Booth v. Campbell, 37 Md. 522 (1873); Allen v. Insurance Co., 2 Md. 111 (1852)). A. Common Law and Legislative History 1. Reckless Endangerment Reckless endangerment is purely a statutory crime.

Modeled after § 211.2 of the Model Penal Code (“Recklessly Endangering Another Person”) and first enacted in Maryland by chapter 469 of the Acts of 1989, reckless endangerment was codified originally as Md.Code (1957, 1992 Repl.Vol.), Art. 27, § 120 under the subtitle Destroying, Injuring, etc., Property Maliciously. Effective 1 October 1996, the Legislature repealed § 120 by Acts 1996, chapter 632, enacting in its stead Md.Code (1957, 1996 Repl.Vol), Art. 27, § 12A-2 under the subtitle of Assault. This statute presently provides, in pertinent part: (a) Creation of substantial risk of death or serious physical injury; penalties. —(1) Any person who recklessly engages in conduct that creates a substantial risk of death or serious physical injury to another person is guilty of the misdemeanor of reckless endangerment and on conviction is subject to a fine of not more than $5,000 or imprisonment for not more than 5 years or both. $ $ $ $ (c) More than one person endangered. — If more than one person is endangered by the conduct of the defendant, a separate charge may be brought for each person endangered. 5 ³⁶⁶ McLCode (1957, 1996 Repl.Vol., 2000 Suppl.), Art. 27, § 12A-2(a)(1). 6 In two recent cases, we have discussed the legislative underpinnings of the reckless endangerment statute, as well as the elements of the crime. In State v. Pagotto, 361 Md. 528 , 762 A.2d 97 (2000), we noted that [t]his statute is aimed at deterring the commission of potentially harmful conduct before an injury or death occurs.

See Minor, 326 Md. at 442, 605 A.2d at 141. The statute was enacted “to punish, as criminal, reckless conduct which created a substantial risk of death or serious physical injury to another person. It is the reckless conduct and not the harm caused by the conduct, if any, which the statute was intended to criminalize.” Minor, 326 Md. at 441, 605 A.2d at 141. Thus, the focus is on the conduct of the accused.

Pagotto, 361 Md. at 549 , 762 A.2d at 108 ; 7 see also State v. Albrecht, 336 Md. 475, 500-01 , 649 A.2d 336, 348 (1994) (“Maryland’s reckless endangerment statute is aimed at deterring the commission of potentially harmful conduct before an injury or death occurs. As a consequence, a defendant may be guilty of reckless endangerment even where he has caused no injury.”). In Jones v. State, 357 Md. 408 , 745 A.2d 396 (2000), we concluded that [t]he elements of a prima facie case of reckless endangerment are: 1) that the defendant engaged in conduct that created a substantial risk of death or serious physical injury to another; 2) that a reasonable person would not have engaged in that conduct; and 3) that the defendant acted ³⁶⁷ recklessly. See Albrecht, 336 Md. at 501 , 649 A.2d at 348-49 .

Jones, 357 Md. at 427 , 745 A.2d at 406. Noting that most Maryland cases addressing these elements discuss the requisite mental state to sustain a reckless endangerment conviction, both Pagotto and Jones cite to Minor, where the Court adopted and applied an objective mens rea: [Gjuilt under the statute does not depend upon whether the accused intended that his reckless conduct create a substantial risk of death or serious injury to another. The test is whether the appellant’s misconduct, viewed objectively, was so reckless as to constitute a gross departure from the standard of conduct that a law-abiding person would observe, and thereby create the substantial risk that the statute was designed to punish. Pagotto, 361 Md. at 549 , 762 A.2d at 108 (quoting Minor, 326 Md. at 443, 605 A.2d at 141); Jones, 357 Md. at 427 , 745 A.2d at 406 (quoting Minor, 326 Md. at 443, 605 A.2d at 141). 2.

Arson At common law, arson was defined as the malicious burning of the dwelling of another. See Brown, 285 Md. at 473, 403 A.2d at 791 ; Gibson v. State, 54 Md. 447, 450 (1880). Moreover, “at common law, arson [was] an offense against the security of habitation or occupancy, rather than against ownership or property.” Richmond v. State, 326 Md. 257, 264 , 604 A.2d 483, 487 (1992); see also Brown, 285 Md. at 473 , 403 A.2d at 791 . To be convicted of common law arson, the State had to establish four elements: (1) that the building burned was a dwelling house or outbuilding within the curtilage; (2) that the building burned was occupied by another; (3) that the building was actually burned, as mere scorching would not suffice; and, (4) that the accused’s mens rea was willful and malicious. 8 See ³⁶⁸ Brown, 285 Md. at 473 , 403 A.2d at 791 (citing Clark & Marshall, A Treatise on the Law of Crimes, §§ 13.09-13.13 (7th ed.1967)).

We most recently addressed the early legislative history of arson in Richmond : By Ch. 138 of the Acts of 1809 the Legislature prescribed punishments for the various common law crimes. Section 5 of that Act dealt with the crime of arson, which at common law is the willful and malicious burning of the dwelling house of another, either by night or day. R. Perkins and R. Boyce, Criminal Law, 273-74 (3d ed.1982); 3 C.Torcia, Wharton’s Criminal Law, § 345 (14th ed. 1980)____ In 1904, the General Assembly slightly expanded upon the common law definition of arson by making illegal the burning of one’s own dwelling house if the intent in burning it was to injure or defraud. Ch. 267, § 6 of the Acts of 1904.

The first substantive attempt to codify the elements of the crime of arson occurred in 1929. Ch. 255, § 6 of the Acts of 1929. The wording of the statute in force today, Art. 27, § 6 [see infra ], remains unchanged since that time. While retaining the common law definition of arson in Art. 27, § 6, other sections of Art. 27 have been added by the Legislature to cover burning of buildings not specified in § 6, burning of personal property of another, burning goods with the intent to defraud an insurer, attempted arson, and other criminal burnings.

Art. 27, §§ 7-10.... Richmond, 326 Md. at 263-64 , 604 A.2d at 486 (internal citations and footnotes omitted). The present day arson statute, under which Petitioner was convicted, defines arson as “willfully and maliciously set[ting] fire to or burning] a dwelling or occupied structure, whether the property of the person or another.” Md.Code (1957, 1996 Repl. Vol.), Art. 27, § 6(a). “Dwelling,” the term applicable in this case, is defined as “a structure, regardless of whether an individual is actually present, any portion of which has been adapted for overnight accommodation of individuals.” Md. Code (1957, 1996