Holland v. State

HOLLANDER, Judge. Following a bench trial in the Circuit Court for Caroline County, Samuel Marcel Holland, appellant, was convicted of first degree burglary, attempted robbery, and attempted theft under five hundred dollars. 1 Holland, who was seventeen years old at the time of the incident, was sentenced to a term of ten years, with all but five years suspended, for the first ³⁵⁵ degree burglary offense, and a concurrent term of ten years, with all but five years suspended, for attempted robbery. The court merged the theft conviction for sentencing purposes. Appellant raises the following issues on appeal: I. Is the evidence sufficient to support a conviction for first degree burglary, when there was no evidence of a breaking?

II

Did the trial court err in denying relief for a discovery violation? TIT. Did the court err in denying appellant’s motion to suppress evidence recovered in the course of a search pursuant to a warrant, when, with reckless disregard for the truth, the affiant omitted crucial information as to the identification of the suspect? For the reasons set forth below, we shall reverse the burglary conviction but affirm the remaining convictions.

FACTUAL SUMMARY Just after dark on March 3, 2002, eighty-one year old James William Carter, also known as “Ham,” left his home at 105 North Fifth Street in Denton to purchase chewing tobacco at a nearby convenience store. On route to the store, Carter passed appellant at the intersection of North Fifth and Gay Streets, approximately thirty feet from Carter’s home. Appellant, who was dressed in a heavy black coat and baggy black pants, was still at the intersection when Carter returned from the store. Upon returning to his house, Carter closed the screen door but did not lock it.

Moreover, he left the wooden door to his home ajar some twelve to fourteen inches. When Carter sat down to watch television, he heard a knock at the door. Thinking that it was one of the neighborhood boys, Carter responded, “come in.” At that point, someone opened the screen door and stood in the area between the screen door and the wooden door. After a brief silence, the individual demanded that Mr. Carter give him his money.

When Carter did not respond, ³⁵⁶ the suspect again demanded money while he “hit for his [coat] pocket.” Although Mr. Carter did not know whether the suspect had a gun, he thought he had “something.” Carter refused to give the assailant any money. Instead, he called out for his roommate, Edward Taylor. Just as Mr. Taylor responded, the suspect fled. Carter testified that he was only able to see the assailant’s eyes, nose, and mouth, because the suspect’s face was partially covered by the hood of his parka.

Mr. Carter further stated that the suspect “wasn’t no grown person.” Moreover, he was convinced that the assailant was the same person he had seen on the corner when he (Carter) went to and from the store. Although the police came to Carter’s residence with some photographs, Mr. Carter was unable to identify the assailant. He stated: “No, I didn’t see it in there.” Yet, in court, Carter identified appellant as his assailant. Carter acknowledged, however, that he “couldn’t see [the assailant’s] eyes real good because he had it [i.e., the parka hood] pulled close.” The trial court then questioned Mr. Carter at length about how he knew that appellant was the assailant if he could not see the suspect’s face.

Carter insisted that appellant was the assailant. The following exchange is noteworthy: [THE COURT]: Now I understand when the person came in, you couldn’t tell who was under that hood? [MR. CARTER]: No, ma’am, no ma’am. [THE COURT]: When you were walking to the Farm Store and you noticed the person on the comer wearing the parka, could you see that person’s face? [MR. CARTER]: No. [THE COURT]: Okay when you came back from the Farm Store and you saw that same person on the corner ... ? [MR.

CARTER]: That’s right. [THE COURT]: Could you see that person’s face? [MR. CARTER]: No, ma’am, I couldn’t see him until he come and knocked on my door. ³⁵⁷ [THE COURT]: All right and then you just saw his eyes, his nose and his mouth? [MR. CARTER]: That’s right, that’s all I could see. [THE COURT]: Now a little earlier you told Mr. Walker that it was the boy standing on the corner, the person on the corner was the Defendant? [MR. CARTER]: It wasn’t him. [THE COURT]: That it was him, you pointed to Mr. Holland, that that was the boy standing on the comer with the parka? [MR.

CARTER]: Yeah, yeah. [THE COURT]: How do you know that if you didn’t see his face? [MR. CARTER]: I could see it but he’s the only, he’s the only one out on the street. [THE COURT]: Okay but if you didn’t see his face, how do you know it was Mr. Holland? [MR. CARTER]: Oh, it was him. [THE COURT]: Okay, can you tell, it’s very important, how do you know it was him if you couldn’t see his face? [MR. CARTER]: I couldn’t see his face until he come in the house but if he hadn’t had that hood pulled up on his head, I could have told that, I could have saw his face but I couldn’t see.

He had it all pulled up like it was freezing out there. [THE COURT]: I understand that but at what point did you decide that that person in the hood was Mr. Holland? [MR. CARTER]: That’s the only one I saw standing there. [THE COURT]: Okay, let’s go back, okay, when you passed the person on the comer, you couldn’t see their face? [MR. CARTER]: No ma’am. [THE COURT]: When did you decide in you own mind that that person who’s face you couldn’t see was Mr. Holland? [MR. CARTER]: Well, I couldn’t say but one thing about it but when I come back and I kind of looked over there, now I say in mind, something ain’t right.

He’s standing there, why he [sic] standing there and nobody else because any ³⁵⁸ other time all them street, street be full but he was the only one on that corner. [THE COURT]: Okay, this is real, real important Mr. Carter and you’ve done a great job testifying and you’ve been, I’ve understood everything you’ve said but you have to understand that I need to know why you think it’s that young man over there that was in that parka? [MR. CARTER]: Well, I’m going to tell you, that’s the only one I saw on that corner. [THE COURT]: Okay but you just told me you didn’t, you couldn’t see their face? [MR. CARTER]: I could see, you’re right ... [THE COURT]: Okay ... [MR. CARTER]: ...

I couldn’t see a face but still, I still say he was the one on that corner. [THE COURT]: Okay you need to tell me why you think that, why, I mean how, I mean it could have been somebody else in that parka? [MR. CARTER]: No ma’am, no ma’am, no ma’am. [THE COURT]: Then you need to tell me why ... [MR. CARTER]: No ma’am, no ma’am, nuh-uh. [THE COURT]: Okay ... [MR. CARTER]: That was him. [THE COURT]: Okay, so what ... [MR.

CARTER]: Now I might, I might (inaudible) but one thing about it, no ma’am, he was the one on that corner because if a person standing on the corner and he’s standing when you go by and you come back, they got to be moved. [THE COURT]: Okay but you need, okay Mr. Carter you need to tell me why you think it was him? [MR. CARTER]: I know it was him. [THE COURT]: Tell me how you know it was him if you couldn’t see ... ? [MR. CARTER]: I couldn’t see his face good but he was the one. ³⁵⁹ Mr. Taylor testified that he responded to Mr. Carter’s call and saw “a person going out of the door from the side view and then I saw the back view of this person going outside the door.... ” He noticed the individual’s walk, which he described: “[T]he type of walk that they used, like a lazy person walk or a slur walk.” Mr. Taylor described the suspect as a dark complected male, about 120 to 130 pounds, approximately o'2" tall. He wore a dark colored, hooded jacket with fur around the outside edge of the hood and dark, baggy, “bulky” clothes.

Nevertheless, when Taylor was asked if he saw the face of the person who entered his residence, Mr. Taylor answered, “No, I did not.” Taylor recalled that Carter said the suspect had tried to rob him (Carter). Accordingly, Taylor called the police. Taylor testified: “I gave them a description of the person that I saw leaving out of the doorway.... ” Then, Taylor went outside to look for the assailant. As he “went around the street,” Taylor “noticed the police had a person standing outside on the passenger side talking to him.... ” Taylor claimed that person matched the description of the assailant.

He also thought this person lived in that area. However, he noticed that the person was not wearing any bulky clothes. Rather, he wore a white tee shirt and jeans. Nevertheless, Taylor recognized the individual because of his “lazy” walk.

A few days after the incident, Taylor called the police again to report that, across the street from their home, he saw “that same type of person with that type of clothes on.... ” Because of the person’s walk and clothing, he concluded that the person across the street was the assailant. The following testimony is pertinent: [PROSECUTOR]: Can you describe what you saw? [MR. TAYLOR]: The person had that same type of slow walk with a little dip in his walk and I told Ham [Mr. Carter], I said that’s that person and Ham looked over there, he said it sure is, just like that and that’s when I had called the police. ³⁶⁰ [PROSECUTOR]: And did you provide information to the police? [MR. TAYLOR]: Yes I did.

After the incident, Taylor was shown a photo array, but he was unable to make an identification. Nevertheless, Taylor made an in-court identification of appellant. Taylor explained that he identified Holland based upon “[h]is height and his size” and “he had that same type walk.” Indeed, Taylor insisted that “[t]here’s no question at all” that Holland was the perpetrator of the crime. Patrolman First Class (“PFC”) Thomas Conneely, Jr. of the Denton Police Department testified that, on March 3, 2002, at approximately 6:30 p.m., he went to 105 North Fifth Street in Denton in response to a call about an attempted armed robbery.

There, he met Carter and Taylor. Among other things, they told Conneely that they could not see all of the suspect’s face, because it was partially covered by his hood. After the interview, the officer “broadcast a lookout giving a description of the suspect.” PFC Conneely then received information from PFC Michael Rodano, indicating that appellant had been seen wearing the described clothing. As a result, appellant was developed as a suspect.

PFC Conneely stopped appellant “a half an hour to an hour” after he interviewed Carter and Taylor. At the time, appellant was wearing a black nylon “running suit.” PFC Conneely conducted a pat-down and told appellant that “there had been an attempted robbery or a robbery, home invasion.” He also informed appellant that he resembled the description of the suspect involved in the “attempted robbery” at North Fifth Street. Appellant told PFC Conneely that he could not have been involved in the incident because he was at a relative’s house, located at 106 North Fifth Street. After talking to appellant, the officer continued to patrol the area, but was unable to locate anyone else who matched the description of the assailant.

On the day of the incident, Conneely also responded to 106 North Fifth Street, where appellant’s mother, Francis Robin ³⁶¹ son, and appellant’s cousin, Vanessa Hudson, were seated on the front porch, along with other unidentified persons. While PFC Conneely spoke with Ms. Robinson, appellant and his brother, Michael Holland, arrived. Conneely recalled that appellant asserted: “ T would have got money if I robbed somebody.’ ” Following his encounter with appellant, PFC Conneely prepared a photo array of six individuals, which included appellant. PFC Conneely related that he showed the array to both Carter and Taylor, neither of whom could identify a suspect.

On March 4, 2002, Conneely returned to the victim’s residence to conduct another interview. Thereafter, Conneely obtained a search warrant for appellant’s residence at 515 Lincoln Street, which was executed on March 6, 2002. Con-neely told appellant that a BB gun had been recovered during the search. Appellant responded that he found the BB gun at the basketball court and concealed it behind his house because he knew that his mother would not approve.

PFC Michael Rodano testified that he saw appellant on the day of the incident. He related that appellant was wearing a fur-trimmed, hooded jacket matching the one described by Mr. Carter. This information was relayed to PFC Conneely. Patrolman Daniel Franklin testified that, at the outset of the search, appellant was served with the warrant.

Franklin stated: “I believe he was reviewing the charges with his mother and in a louder voice than the rest he had been talking, he said ‘assault, I didn’t assault that man.’ ” As we discuss in more detail, infra, appellant unsuccessfully moved to strike this statement on the ground that the State failed to disclose it in discovery. During the search of appellant’s residence, the police recovered a navy blue parka with a fur lined hood. Two unused Crossman brand C02 cartridges were found in an upstairs bedroom. A plastic baggie containing suspected crack cocaine was also seized, but it was later found to contain pebbles and candle wax.

In addition, in the rear yard the police recovered ³⁶² a chrome colored Daisy C02-powered BB gun with a black handle. Appellant gave a written statement to the police after his arrest in which he said: I was chilling all day playing with my dogs at my house[.] I don’t know what time I was on the block with me and my brother and somebody and he went home and me and Mic went home I was taking my bath and Mic went outside and in the fourt [sic] of the house then he came in the house an[d][sic] side [sic] some body got rob [sic] and they said it was me my [sic] brother went back outside and then I came out[.] I don’t know about what time I was over Vanessa because it was my mom and sister Vanessa was backup [sic] at the time when the cops came to her house so she got scared and did not know what to say[.] I find [sic] the gun to the [sic] playground Tuesdayf.] Vanessa Hudson, appellant’s cousin, testified that appellant was not at her home at the time of the incident. But, she claimed that appellant had asked her to tell the police that he was at her residence at that time. Ms. Hudson further testified that appellant was close to her children, and her children may have seen him at her house at the time of the incident.

At the close of the State’s case, the court granted appellant’s motion for judgment of acquittal as to the charge of wearing, carrying, and transporting a handgun. Appellant also moved for acquittal as to the burglary charge, claiming that the evidence of a breaking was insufficient to support a burglary conviction. Defense counsel said: “The evidence is that, well, one of the elements of burglary is a break in and according to case law, break in requires entering by trespass .... ” The following colloquy ensued: THE COURT: Well but I think it also says it doesn’t preclude if someone used it by trickery, knocking on the door. To come in with the intent of robbing I think constitutes breaking. ³⁶³ [DEFENSE COUNSEL]: Well, trickery, yeah but constructive breaking would be using trickery, a falsehood to gain entry.

Now I submit knocking on a door is not trickery.... It’s not a breaking, there’s not fraud involved. I think the cases where that would apply would be where someone lies to get in or they impersonate someone else to get in. THE COURT: So if he had knocked on the door and said I’m the mailman, he said come on in that would constitute breaking but if he’s smart enough.... [DEFENSE COUNSEL]: Like if he had some story.

THE COURT: ... not to say anything at all and just wait to see if someone says come in, that’s not a breaking? [DEFENSE COUNSEL]: No, it’s, it could be ... no, it’s not. Part of, I mean ... THE COURT: Well my idea of the trickery is you knocking on the door. That’s, I mean, in other words, most people that gain entry will ring a doorbell and knock on the door and if someone inside doesn’t come to the door to see who it is and just says come on in, in my view that’s still gaining entrance by tricking someone to think you’ve got legitimate business that you’re ringing the doorbell or knocking on the door.

After the court denied the motion for judgment, appellant called Thomas Harris, an investigator with the Public Defender’s Office, as his only witness. Harris testified that on July 12, 2002, Taylor told him that when he (Taylor) entered the room, the suspect was leaving and had his back turned toward Mr. Taylor. Moreover, Taylor said he did not see the suspect’s face. Mr. Taylor also told Mr. Harris that he did not see the suspect walk to the corner, because at that point Mr. Taylor had turned to call 911.

When he turned back, however, he saw the suspect standing on the comer. Harris again spoke to Taylor on July 17, 2002, because the statement of probable cause had been issued and was inconsistent with what Taylor had told Harris. Harris testified that he asked Taylor if he had seen the suspect on March 3, 2000, ³⁶⁴ standing with a group of people on a porch, and Taylor told Mr. Harris that he had not. But, Taylor saw the suspect standing on the corner.

The State called Mr. Taylor in rebuttal. He testified that, a few days after the incident, he called the police a second time, because he saw “the same individual” standing across the street, and he “made the same identification.” We shall include additional facts in our discussion. DISCUSSION I. Appellant was convicted of first degree burglary, in violation of Md.Code Ann., Art. 27, § 29. 2 It provided: (a) In general. — A person may not break and enter the dwelling of another with the intent to commit theft or a crime of violence. (b) Penalty. — A person who violates this section is guilty of the felony of burglary in the first degree and on conviction is subject to imprisonment for not more than 20 years.

Appellant contends that the evidence was insufficient to support his conviction for first degree burglary because there was no evidence of either an actual or constructive breaking of Carter’s home. With regard to an actual breaking, appellant asserts that “no reasonable fact finder could have found beyond a reasonable doubt that appellant broke into Mr. Carter’s residence, because the entry was with consent.... ” Noting that “Mr. Carter shouted out an invitation to enter,” appellant contends the “entry [was] based upon consent,” and a “permissive or consensual entry is not a breaking” under Maryland law. In addition, appellant argues that no breaking occurred because “the screen door was closed but not locked” and “[t]he inside door was sitting open.” ³⁶⁵ Holland also maintains that the evidence did not establish a constructive breaking. In this regard, he observes that the State did not show that he gained entry through fraud, trickery, or artifice.

Further, appellant complains that, in the prosecutor’s closing argument, “the prosecutor argued that there was a burglary here, because there was an entry with the intent to commit theft.” He recognizes that, in “some other states, a mere entry can constitute burglary, as long as at the time of the entry, the defendant had the intent to commit a crime within.” Appellant adds: “If the ‘entry with intent to commit a crime’ formulation were the law in Maryland, the evidence here would be sufficient.” But, appellant insists that, under Maryland law, an entry does not amount to a constructive breaking merely because the entry is made with an illegal intent. The State counters that the evidence was sufficient to sustain Holland’s conviction. In its view, the evidence satisfied “the ‘entering’ element necessary to sustain [appellant’s] burglary conviction,” and established both an actual breaking and a constructive breaking. Pointing to appellant’s “felonious intent,” the State asserts: “Holland’s act of knocking and remaining quiet, with the sole intent to take Carter’s money, was sufficient evidence of an intent to deceive.” In addition, the State contends that “Holland’s act of knocking and remaining silent constituted a constructive breaking.” In reviewing a sufficiency claim, we must determine “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.” Jackson v. Virginia, 443 U.S. 307, 313-14 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979).

The issue is whether the verdict was supported by sufficient evidence that, directly or circumstantially, supports a rational inference of facts that could convince a trier of fact of the defendant’s guilt beyond a reasonable doubt. State v. Albrecht, 336 Md. 475, 478-79 , 649 A.2d 336 (1994). Put another way, “[t]he limited question before an appellate court is ‘not whether the evidence should have or ³⁶⁶ probably would have persuaded the majority of fact finders but only whether it possibly could have persuaded any rational fact finder.’ ” Mora v. State, 123 Md.App. 699, 727 , 720 A.2d 934 (1998), aff'd on other grounds, 355 Md. 639 , 735 A.2d 1122 (1999) (quoting Fraidin v. State, 85 Md.App. 231, 241 , 583 A.2d 1065 , cert. denied, 322 Md. 614 , 589 A.2d 57 (1991) (emphasis in original)). When, as here, the case is tried without a jury, the “appellate court will review the case on both the law and the evidence.

It will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and will give due regard to the opportunity of the trial court to judge the credibility of the witnesses.” Md. Rule 8-131(c). See State v. Raines, 326 Md. 582, 589 , 606 A.2d 265 , cert. denied, 506 U.S. 945 , 113 S.Ct. 390 , 121 L.Ed.2d 299 (1992). We agree with appellant that there was insufficient evidence to support a conviction for burglary, whether based on the theory of an actual or a constructive breaking. We explain.

The evidence showed that appellant was silent as he knocked on Carter’s door. Nor did appellant make any deceptive or threatening comments. In response to appellant’s knock, Carter answered, “come in.” At that point, appellant opened the unlocked screen door and stood between that door and the wooden door that Carter had left ajar. Carter testified: When [appellant] come in, he come in there and he stayed inside the screen door, didn’t quite shut all the way, he stand in the screen door and ain’t nobody in the wooden door and so he come, he come in there and so I didn’t say nothing.... [PROSECUTOR]: Did he move the door at all?

H* Hí [CARTER]: No, the wooden door, see I had a latch, a bundle at the wooden door, I had it open. [PROSECUTOR]: Okay.... [CARTER]: And the screen door wasn’t even locked. ³⁶⁷ To be sure, a breaking may occur by opening a closed but unlocked door. See Robinson v. State, 67 Md.App. 445, 458 , 508 A.2d 159 , cert. denied, 307 Md. 261 , 513 A.2d 314 (1986); Reagan v. State, 2 Md.App. 262, 267-68 , 234 A.2d 278 (1967). But, the State does not contend that appellant committed an actual breaking merely because he opened the unlocked screen door. Finke v. State, 56 Md.App. 450 , 468 A.2d 353 (1983), cert. denied, 299 Md. 425 , 474 A.2d 218 , cert. denied, 469 U.S. 1043 , 105 S.Ct. 529 , 83 L.Ed.2d 416 (1984), is instructive in regard to the breaking element of a burglary offense.

Finke was convicted of the felony murder of his aunt, who was found stabbed to death in her home. Id. at 457-58, 468 A.2d 353 . He argued on appeal that the evidence was insufficient regarding the breaking and intent elements of the underlying felony. Id. at 466-67 , 468 A.2d 353 .

This Court noted that there was “no direct evidence as to how or under what circumstances” Finke entered his aunt’s home, other than his statement to the detective that “he guessed his aunt let him in.” Id. at 467 , 468 A.2d 353 . Accordingly, the Court said that “the finding of a trespassory entry, or breaking, essential to the verdict could only have been reached by deduction or inference from evidence of other facts.” Id. The Court explained that “[t]he breaking of a dwelling house or other structure, within the meaning of that term as applied to burglary and related statutory crimes, may be actual, as where physical force is applied, or constructive, as where entry is gained through fraud or trickery. It may involve simply lifting a latch or opening a door closed by its own weight.” Id. at 467 , 468 A.2d 353 (citing Jones v. State, 2 Md.App. 356, 360, 234 A.2d 625 (1967)); see Reagan v. State, 2 Md.App. 262, 267-68, 234 A.2d 278 (1967).

The Court went on to state that “[tjurning a doorknob and opening a closed door or merely further opening a door left ajar involves sufficient force to constitute an actual breaking, provided it is a trespas-sory act.” Id. (Emphasis added). Nevertheless, the Court cautioned: “ ‘There is no ‘breaking’ if a person has a right to enter or if he enters with the consent of the owner.’ ” Finke, ³⁶⁸ 56 Md.App. at 467 , 468 A.2d 353 (quoting Martin v. State, 10 Md.App. 274, 279 , 269 A.2d 182 (1970)). The Court concluded that a rational inference could be drawn from the evidence that Finke “opened the door and entered” his aunt’s home “without invitation,” given that “he had not visited his aunt for about a year and half and was not expected on this occasion.” Id. at 479, 468 A.2d 353 .

Therefore, “in the absence of any legitimate basis for his presence, the jury could have rationally inferred that Finke’s entry was trespassory in nature, i.e., a breaking.” Id. Martin v. State, supra, 10 Md.App. 274 , 269 A.2d 182 , is also instructive. There, two brothers, Claude and-William Martin, were found parked in front of a recently burglarized home with stolen items in their car. Id. at 277, 269 A.2d 182 .

At trial, Claude testified that, on the night in question, his brother approached him at a bar and asked him if he would move a few things around the corner for an individual named Tony, who offered to pay them for their services. Id. at 278 , 269 A.2d 182 . The trial court did not accept Claude’s explanation of how he came into possession of the stolen goods and convicted the brothers of burglary. Id. at 278 , 269 A.2d 182 .

On appeal, Claude claimed that the evidence was not sufficient to support his conviction. Id. at 276 , 269 A.2d 182 . Specifically, he asserted that the State failed to prove that Claude, William, or Tony lacked the homeowner’s permission to enter the dwelling. Id. at 278 , 269 A.2d 182 .

The Court explained that “breaking, as an element of burglary, requires a breach of the dwelling made by a trespass. There is no ‘breaking’ if a person has a right to enter or if he enters with the consent of the owner.” Id. at 279 , 269 A.2d 182 (citing Perkins on Criminal Law, 2d Ed., p. 195; Clark and Marshall, Law of Crimes, 7th Ed., § 13.03, pp. 1000-1001.) Because the trial court did not find that the defendants had permission to enter the house, the Court held that the trial court did not err in concluding that the breaking was trespas-sory; that was a rational inference from the facts and circumstances shown. Id. ³⁶⁹ Appellant relies on Brooks v. State, 25 Md.App. 194 , 333 A.2d 352 (1975), aff'd on other grounds, 277 Md. 155 , 353 A.2d 217 (1976), to support his claim that his entry into Carter’s residence was consensual rather than trespassory. In Brooks , the defendant was convicted of storehouse breaking after he entered a department store while it was open to the public and then secreted himself in the store until after it closed.

Id. at 195 , 333 A.2d 352 . This Court held that “whether or not we can term appellant’s original entrance into the store to be by trick, fraud, artifice, deception or otherwise, we think it can be fairly said that appellant’s failure to leave the premises when the store closed for business made his original entrance a constructive, illegal breaking and entering, ah initio.” Id. at 198 , 333 A.2d 352 . The Court of Appeals affirmed, but on other grounds. Brooks v. State, 277 Md. 155 , 353 A.2d 217 (1976).

It concluded that there was sufficient evidence of an “actual breaking” because the door leading to the shoe department, where appellant had secreted himself, had been pried open. Id. at 163 , 353 A.2d 217 . But, the Court left “for another day, and for other factual findings, the resolution of the question: whether or not one, who enters premises lawfully, such as an invitee, and then, possessing an intent to steal, or commit a felony, manages by stealth or artifice, to remain upon the premises, after the termination of the lawfulness of his presence, can be guilty of either common law burglary or the statutory offense.... ” Id. at 161 , 353 A.2d 217 . In this case, Carter acknowledged that appellant merely knocked on the door and, in response, he told appellant to “come in.” Thus, there was no actual breaking by appellant in opening the unlocked door; appellant’s entrance was consensual.

See Martin, 10 Md.App. at 279 , 269 A.2d 182 (“There is no ‘breaking’ if a person has a right to enter or if he enters with the consent of the owner.”). Because there was no actual breaking by appellant, we next consider the State’s claim that appellant’s conduct amounted to a “constructive break.” ³⁷⁰ It appears to us that the State offers two primary reasons to support its position that appellant’s actions constituted a constructive breaking. First, the State contends that appellant harbored a felonious intent that gave rise to a constructive breaking. The State asserts that appellant’s “act of knocking” on Mr. Carter’s door while “remaining quiet, with the sole intent to take Mr. Carter’s money, was sufficient evidence of an intent to deceive.” Notwithstanding Carter’s statement of “come in,” the State argues that appellant knew he was not invited into Mr. Carter’s home because of his illicit purpose.

The State adds: Indeed, as Holland’s acts upon entering Carter’s apartment consisted only of repeated demands for money, there was simply no evidence to support the conclusion that Holland had anything other than a felonious intent when he entered Carter’s apartment. Second, the State contends that a constructive breaking occurred based on appellant’s trickery and fraudulent conduct. The State asserts: “Holland was posing as someone known to Carter by knocking and failing to announce himself, and therein lies the fraud.” We agree that “[t]he breaking element of burglary ‘may be satisfied where it is shown that ... the breaking occurred ‘constructively,’ through an entry gained by artifice, by fraud, conspiracy, or by threats.’ ” Oken v. State, 327 Md. 628, 662 , 612 A.2d 258 (1992) (citation omitted), cert. denied, 507 U.S. 931 , 113 S.Ct. 1312 , 122 L.Ed.2d 700 (1993); see Winder v. State, 362 Md. 275, 326 , 765 A.2d 97 (2001) (defining “constructive breaking to include ‘every unlawful entry,’ ”) (citing Brooks, 277 Md. at 159-160 , 353 A.2d 217 ); Reed v. State, 316 Md. 521, 524 , 560 A.2d 1104 (1989) (“At common law, a constructive breaking occurred ‘when entry was gained by fraud or threat of force.’ ”) (citation omitted); Jones v. State, supra, 2 Md.App. at 360, 234 A.2d 625 ; Reagan v. State, 2 Md.App. 262, 267-68 , 234 A.2d 278 (1967). However, there was no evidence adduced at trial that appellant used any threats, trickery, or force to gain entry to Carter’s home. ³⁷¹ This is not a case in which appellant gained entry by a false statement that induced Carter to open the door.

In other words, appellant did not claim to have a lawful objective and, “upon gaining entry The] turned out to have no such lawful objective.” Reed, 316 Md. at 524 , 560 A.2d 1104 . Nor did appellant respond falsely to an inquiry by Carter; the victim never inquired as to who was at the door or for what purpose. Had Carter posed such an inquiry, appellant’s silence might be construed as trickery of some sort. But, absent such an inquiry, Carter did not engage in fraud merely because he stood silent while knocking.

Oken, 327 Md. 628 , 612 A.2d 258 , is instructive. There, the State claimed that the defendant committed a constructive breaking in connection with the first degree murder of Dawn Garvin, whose body was found in her apartment. Id. at 634-35 , 612 A.2d 258 . Witnesses testified that, on several prior occasions, Oken had attempted to gain entry to residences by fraudulently representing to the occupants that he needed to use the telephone.

Id. at 662 , 612 A.2d 258 . And, on one occasion, Oken stopped a woman by posing as a policeman. Id. The State argued that, based on this evidence, “the jury could have reasonably inferred that Oken employed a similar ruse to gain entry to Dawn Garvin’s apartment.” Id.

Oken claimed, inter alia, that the evidence was insufficient in regard to the burglary. Id. at 661 , 612 A.2d 258 . The Court of Appeals agreed, concluding that the record was “completely devoid of any evidence showing a breaking, either actual or constructive, of Dawn Garvin’s apartment.” Id. at 663 , 612 A.2d 258 . Therefore, it reversed Oken’s burglary conviction.

Id. Spence v. State, 51 Md.App. 359, 362 , 443 A.2d 648 (1982), rev’d on other grounds, 296 Md. 416 , 463 A.2d 808 (1983), is also illuminating. In that case, the victim testified that he was at home with his family when, at about 10:15 p.m., his son opened the door in response to a knock. Id. at 360, 443 A.2d 648 .

Two strangers entered the apartment; one remained by the door while the other, the appellant, went into the living room. Id. This Court held that the defendant’s “mumbling to ³⁷² gain entrance to the apartment” constituted “an artifice or fraud within the meaning of Brooks.” Id. at 362, 443 A.2d 648 . Under the circumstances of this case, we cannot conclude that appellant’s silence while knocking on Carter’s door amounted to the kind of trickery or fraud that supports a finding of constructive breaking.

Moreover, the State has not provided us with any authority to support its claim that Holland’s illicit purpose or motive in knocking on Carter’s door, standing alone, constituted a constructive breaking. Accordingly, we shall reverse appellant’s first degree burglary conviction.

II

Appellant contends that the trial court erred in denying his motion to strike the testimony of Patrolman Daniel Franklin, who testified about a remark allegedly made by appellant upon arrest. Although the defense did not request the