Howling v. State Abongnelah v. State

Mashour Howling v. State of Maryland, No. 35, September Term, 2021; Funiba Abongnelah v. State of Maryland, No. 36, September Term, 2021. Opinion by Hotten, J. CRIMINAL LAW – STATUTORY INTERPRETATION – PROHIBITED POSSESSION OF FIREARM AND AMMUNITION The United States Supreme Court in Rehaif v. United States, 588 U.S. ___ , 139 S. Ct. 2191 (2019) interpreted 18 U.S.C. § 922 (g), a federal statute prohibiting possession of a firearm, to require proof of the defendant’s knowledge of possessing a firearm and proof of the defendant’s knowledge of status as a person prohibited from possessing a firearm. The Court of Appeals declined to apply the reasoning of Rehaif to its interpretation of Md. Code Ann., Public Safety (“Pub. Safety”) § 5-133 and § 5-133.1 because the plain text, legislative history, and relevant case law did not require the State to prove the defendant’s knowledge of status as a person prohibited from possessing a firearm and ammunition.

CRIMINAL LAW – JURY INSTRUCTION – PROHIBITED POSSESSION OF FIREARM A circuit court has broad discretion when delivering a jury instruction, but abuses its discretion by delivering an instruction that is not a correct statement of law. Cost v. State, 417 Md. 360, 368 , 10 A.3d 184, 189 (2010). The Court held that the circuit court did not abuse its discretion by declining to give a jury instruction stating that the State must prove knowledge of prohibited status pursuant to Pub. Safety § 5-133.

The circuit court correctly propounded the Maryland Pattern Jury Instruction, which provides that the State must only prove, with respect to the mens rea element of Public Safety § 5-133, the defendant’s knowledge of possession of a firearm. CRIMINAL LAW – SUFFICIENCY OF EVIDENCE – PROHIBITED POSSESSION OF FIREARM The State satisfies its burden of evidentiary sufficiency when “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” State v. McGagh, 472 Md. 168, 194 , 244 A.3d 1117 , 1131–32 (2021) (citations omitted) (emphasis in original). The Court held that the State provided sufficient evidence to convict the defendant of possession of a prohibited firearm pursuant to Pub. Safety § 5-133.

The State entered into evidence a jail call recording in which the defendant admitted to possessing a firearm on his person at the time of arrest. The defendant also stipulated to a prior felony conviction, which prohibited possession of a firearm pursuant to Pub. Safety § 5-133. The State did not need to provide evidence that the defendant also knew that his prior conviction prohibited possession of a firearm pursuant to Pub.

Safety § 5-133. Circuit Court for Montgomery County IN THE COURT OF APPEALS Case No. 135898C OF MARYLAND Circuit Court for Montgomery County Case No. 135936C Nos. 35 & 36 Argued: February 3, 2022 September Term, 2021 __________________________________ MASHOUR HOWLING v. STATE OF MARYLAND __________________________________ FUNIBA ABONGNELAH v. STATE OF MARYLAND __________________________________ *Getty, C.J., *McDonald, Watts, Hotten, Booth, Biran, Battaglia, Lynne A. (Senior Judge, Specially Assigned), JJ. __________________________________ Opinion by Hotten, J. __________________________________ Filed: April 28, 2022 *Getty, C.J., and McDonald, J., now Senior Judges, participated in the hearing and conference of these cases while active Pursuant to Maryland Uniform Electronic Legal Materials Act members of this Court; after being recalled (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2022-04-28 14:48-04:00 pursuant to Maryland Constitution, Article IV, Section 3A, they also participated in the decision and adoption of this opinion. Suzanne C. Johnson, Clerk “There is wide latitude in the lawmakers to declare an offense and to exclude elements of knowledge . . . from its definition.” Lambert v. California, 355 U.S. 225, 228 , 78 S. Ct. 240, 242 (1957).

We consider whether the General Assembly intended to exclude the element of knowledge of a person’s status as a person prohibited from possessing a regulated firearm and ammunition pursuant to Md. Code Ann., Public Safety (2018 Repl. Vol.) (“Pub. Safety”) § 5-133 and § 5-133.1. This opinion consolidates two separate cases that collectively concern the possession of a prohibited firearm and ammunition by disqualified persons.

The defendants in each case, Mr. Mashour E. Howling (“Petitioner Howling”) and Mr. Funiba T. Abongnelah (“Petitioner Abongnelah”), possessed a firearm at the time of arrest, while disqualified from doing so. Both cases proceeded separately to jury trials before the Circuit Court for Montgomery County. At varying points in the proceedings, each Petitioner requested that the respective circuit court adopt the reasoning of Rehaif v. United States, 588 U.S. ___ , 139 S. Ct. 2191 (2019), where the United States Supreme Court held that the federal statute 18 U.S.C. § 922 (g) required proof of knowledge of possession of a firearm and proof of knowledge of the defendant’s status as a person prohibited from possessing a firearm.1 Id. at ___, 139 S. Ct. at 2200 . Petitioners requested that the circuit court give a jury instruction incorporating the reasoning of Rehaif. 2 The circuit court declined to give the requested jury instruction in each case.

Both Petitioners moved for judgment of acquittal at the close of the State’s case and renewed the motion at the close of all evidence. Pertinent to this appeal, Petitioner Abongnelah argued that the State provided insufficient evidence to establish that he knew he was prohibited from possessing a firearm. The circuit court denied both motions in each case. Two separate juries found Petitioners each guilty of possessing a firearm in violation of Pub.

Safety § 5-133. Petitioner Howling was also found guilty of possessing ammunition in violation of Pub. Safety § 5-133.1. Petitioners separately appealed to the 1 Petitioner Abongnelah appeared to argue at trial that pursuant to Rehaif the State must prove that he knew his prior felony conviction disqualified him from possession.

This argument misinterprets the holding of Rehaif. He subsequently amended his argument on appeal, which we address infra at slip op. 36. 2 Only Petitioner Howling’s case concerned possession of prohibited ammunition pursuant to Pub. Safety § 5-133.1. The State argues that Petitioner Howling failed to preserve the argument with respect to Pub.

Safety § 5-133.1 because Petitioner Howling requested and received a jury instruction that did not include knowledge of status as an element of the crime. Ordinarily, the issue with respect to Pub. Safety § 5-133.1 would be unpreserved pursuant to Md. Rule 8-131(a). Given the close connection between Pub.

Safety § 5-133.1 and Pub. Safety § 5-133, and the desire to provide guidance to lower courts that will frequently address the concurrent issue of possession of a firearm and ammunition, we exercise our discretion to reach the merits of whether Pub. Safety § 5- 133.1 requires proof of knowledge of prohibited status. Jones v. State, 379 Md. 704, 713 , 843 A.2d 778, 783 (2004) (“Thus, under [Md. Rule 8-131(a)], an appellate court has discretion to excuse a waiver or procedural default and to consider an issue even though it was not properly raised or preserved by a party[]”); see Crown Oil and Wax Co. of Delaware v. Glen Const.

Co. of Virginia, Inc., 320 Md. 546, 561 , 578 A.2d 1184, 1191 (1990) (“Even if the successor argument were a new issue, raised for the first time on appeal, this Court has discretion under [Md.] Rule 8-131(a) to consider it, and we exercise that discretion to consider the ‘issue’ in this case.”). 2 Court of Special Appeals, which affirmed in separate unpublished opinions. Abongnelah v. State, No. 2561, Sept. Term, 2019, 2021 WL 1943262 (Md. Ct. Spec. App. May 11, 2021); Howling v. State, No. 2087, Sept. Term, 2019, 2021 WL 402519 (Md. Ct. Spec. App. Feb. 4, 2021).

The Court of Special Appeals declined to adopt the reasoning of Rehaif in either case, and concluded that the State must prove, with respect to the mens rea element, only knowledge of possession of a regulated firearm pursuant to Pub. Safety § 5- 133 (in both cases) and knowledge of possession of ammunition pursuant to Pub. Safety § 5-133.1 (in Petitioner Howling’s case). Accordingly, the intermediate appellate court held that the circuit court did not abuse its discretion in declining to give Petitioners’ requested jury instructions.

The court also held in Petitioner Abongnelah’s case that there was sufficient evidence to establish knowledge of possession of a regulated firearm. Petitioners asked this Court to interpret Pub. Safety § 5-133 and § 5-133.1 to require knowledge of possession of a firearm and knowledge of status as a prohibited person. We granted certiorari on September 29, 2021 in each case, 476 Md. 258 , 259 A.3d 797 (2021), to address the following questions presented: 1.

In a question of first impression, did the [circuit] court err by giving a jury instruction that omitted a scienter requirement for the offenses charged, contrary to the holding of Rehaif v. United States, [ 588 U.S. ____ ,] 139 S. Ct. 2191 (2019), on the presumptions in law in the equivalent Federal Statute, the Rule of Lenity, and this Court’s decisions in Dawkins v. State, 313 Md. 638 [, 547 A.2d 1041 ] (1988) and Chow v. State, 393 Md. 431 [, 903 A.2d 388 ] (2006)? 2. Under the facts of [Petitioner Howling’s] case, in which no evidence was adduced that [Petitioner Howling] was previously notified by government authorities that he was prohibited from possessing a regulated firearm in Maryland, did the [circuit] court err in giving the pre-Rehaif pattern jury instructions lacking scienter requirements? 3 [3.] In a matter of first impression, did [the Court of Special Appeals] err by holding that the evidence was sufficient to convict Petitioner [Abongnelah] of illegally possessing a regulated firearm where the State failed to prove he had knowledge of his prohibited status - i.e., that he was a convicted felon - because that result was inconsistent with the [United States] Supreme Court’s interpretation of the analogous Federal statute in Rehaif v. United States, [ 588 U.S. ____ ,] 139 S. Ct. 2191 (2019), and was at odds with this Court’s precedent? [4.] Did [the Court of Special Appeals] err by upholding the [circuit] court’s refusal to instruct the jury that the State was required to prove that Petitioner [Abongnelah] had knowledge of his prohibited status? [5.] Was the knowledge issue raised [by Petitioner Abongnelah] adequately preserved where both trial and appellate counsel argued that Rehaif required knowledge of prohibited status and appellate counsel clarified in [Petitioner Abongnelah]’s Reply Brief [before the Court of Special Appeals] that prohibited status meant Petitioner [Abongnelah]’s status as a felon? We answer the questions presented in the negative, and shall affirm the judgments of the Court of Special Appeals. FACTS AND PROCEDURAL BACKGROUND Underlying Incidents A. Petitioner Howling On March 20, 2019, Corporal Brian Rumsey of the Maryland National Capital Park and Planning Police Department was on a lunch break at a shopping center near Layhill Road in Silver Spring, Maryland.

Corporal Rumsey observed two men in the shopping center parking lot “checking their surroundings, constantly looking around.” Corporal Rumsey entered a nearby liquor store on the suspicion of a potential robbery. He noticed one of the two men at the counter and detected the smell of marijuana. 4 Corporal Rumsey followed the two men, who crossed Layhill Road and entered the passenger side of a parked truck in a nearby parking lot. Corporal Rumsey “flagged down” Officer Sean McKinney of the Montgomery County Police Department (“MCPD”) in a marked cruiser and notified Officer McKinney of potential criminal activity. Officer McKinney approached the parked truck and detected a “strong odor of marijuana” emanating from the vehicle and/or its passengers.

One of the men told Officer McKinney that they were waiting for their friend, later identified as Petitioner Howling, who was getting a haircut at the nearby barbershop. Law enforcement searched the truck3 and found a rental agreement in Petitioner Howling’s name, a loaded Glock semiautomatic handgun, two magazines of ammunition for the handgun, and approximately $4,100 in cash. Two officers located Petitioner Howling in the barbershop and arrested him. During a police interview with Detective Tomasz Machon of the MCPD, Special Investigation Division, Petitioner Howling explained that he lived in Pennsylvania but had traveled to Montgomery County, where his mother resides, for a doctor’s appointment.

His two friends, who initially drew the attention of Corporal Rumsey, wanted to accompany him on the trip. Petitioner Howling told Detective Machon that the handgun was registered to him in Pennsylvania, and he did not realize the handgun was in the car “until on the way 3 Officer Rumsey testified during the suppression hearing that he received consent to search the truck. The suppression court did not reach the issue of consent, but found that the odor of marijuana provided probable cause to search the vehicle. Petitioner Howling did not challenge the decision of the suppression court on appeal. 5 down[.]” Petitioner Howling also informed Detective Machon that he was convicted of simple assault in Pennsylvania.4 When the interviewing officer advised that Maryland law prohibited possession of a firearm following conviction of simple assault in Pennsylvania, Petitioner Howling claimed that he did not intentionally bring the handgun into Maryland.

The State charged Petitioner Howling with possession of a firearm by a prohibited person pursuant to Pub. Safety § 5-133(c), transportation of a loaded handgun in a vehicle pursuant to Md. Code Ann., Criminal Law (“Crim. Law”) § 4-203(a)(1)(v), and possession of ammunition by a prohibited person pursuant to Pub. Safety § 5-133.1.

B. Petitioner Abongnelah In April 2019, Detective Machon began monitoring an Instagram account with the handle “gg_mikey”, believed to be used by Petitioner Abongnelah. Prince George’s County law enforcement had been monitoring the account since Petitioner Abongnelah’s release from prison in 2018, and tipped off Detective Machon that Petitioner Abongnelah may be involved in prohibited firearms activity within Montgomery County. On June 5, 2019, at 1:53 a.m., a video was posted to the Instagram account that depicted a person shooting a Kel-Tec handgun at a distant car with flashing red and blue lights. A voice in the video stated, “I’ma shoot the police.” Based on the video, other photos and videos posted to the Instagram account, and Petitioner Abongnelah’s MVA photo, Detective Machon concluded that Petitioner Abongnelah was the person firing the 4 Petitioner Howling was convicted of simple assault in 2002, a misdemeanor in Pennsylvania.

Petitioner Howling was sentenced to eighteen months of probation, twenty hours of community service, and ordered to pay a fine and other costs. Pennsylvania law permits the possession of firearms by individuals convicted of simple assault. 6 weapon in the video. Detective Machon also identified the serial number of the firearm in the video and discovered that the firearm had been reported stolen in August 2018. On the same day as the Instagram posting, MCPD officers applied for a search warrant for Petitioner Abongnelah’s apartment.

In the interim, undercover officers surveilled the outside of his apartment building. The officers witnessed Petitioner Abongnelah leave his apartment and enter a vehicle with a driver and two passengers. Officers followed the vehicle to a shopping center, where Sergeant Charlie Bullock testified that he believed he observed Petitioner Abongnelah make a drug exchange outside of a bank. When MCPD stopped Petitioner Abongnelah’s vehicle, Petitioner Abongnelah fled.

Officers caught Petitioner Abongnelah and arrested him. Officers searched his person, and found a loaded firearm in his pocket. The parties stipulated that at the time of his arrest, Petitioner Abongnelah was under twenty-one and a convicted felon. The State charged Petitioner Abongnelah with possession of a firearm by a convicted felon in violation of Pub.

Safety § 5-133(c) and possession of a firearm by a person under the age of twenty-one pursuant to Pub. Safety § 5-133(d). Circuit Court Proceedings A. Petitioner Howling Petitioner Howling moved to suppress evidence seized from the pick-up truck. Following a suppression hearing on September 19, 2019, the circuit court denied Petitioner Howling’s motion in a memorandum opinion and order.

The case proceeded to a jury trial on October 15, 2019. The State presented witness testimony and exhibits that demonstrated Petitioner Howling was in possession of the firearm at the time of the arrest. In a recorded 7 interview between Petitioner Howling and Detective Machon, Petitioner Howling admitted to possessing the firearm: [Detective] Machon: Okay. Well, what’s the deal with that gun? [Petitioner] Howling: I didn’t realize it was there until on the way down, I had money on me for stuff I had to pick up and stuff for tomorrow.

And I went to put that in the compartment, the gun. It’s my gun. It’s registered to me. *** [Detective] Machon: So in Maryland, . . . as far as the law goes, you can’t possess a firearm if you’re (unintelligible) and certain charges, you’ve been charged with in the past. I see you initially had an assault. *** [Petitioner] Howling: . . .

I didn’t know [the firearm] was in there. I wouldn’t have brought it. [Detective] Machon: Okay. It’s not anybody else’s in that car. It’s yours and you had possession of it. [Petitioner] Howling: That’s mine and my gun is in there.

The State then admitted evidence demonstrating that ammunition for the firearm was recovered from the vehicle. At the close of the State’s case, counsel for Petitioner Howling moved for judgment of acquittal, arguing that “[Petitioner] Howling was[ not] aware that he could[ not] have a firearm and ammunition in the [S]tate of Maryland based on his prohibited conviction.” The State opposed the motion by arguing that “[k]nowledge of the law is not an element of the offenses charged.” The circuit court agreed with the State and denied the motion: “With respect to the argument of scienter of knowledge about the gun laws in Maryland, 8 the statute that prohibits a certain person[] from having a firearm is a strict liability offense. It does not require that intent be proven.” Counsel for Petitioner Howling renewed the motion for judgment for acquittal by arguing that the circuit court should adopt the reasoning of the United States Supreme Court in Rehaif and interpret Pub. Safety § 5-133(c) to require proof of knowledge that the defendant “belongs to the relevant category of persons barred from possessing a firearm.” The circuit court denied the motion.

At the same time, Counsel for Petitioner Howling requested the circuit court provide a jury instruction incorporating the reasoning of Rehaif, arguing that the State must prove that Petitioner Howling “knew he was prohibited from having this firearm.” The circuit court denied the request: [A] [circuit] court that uses a jury instruction other than a pattern jury instruction when there is a pattern jury instruction that directly addresses the elements at issue, does so at the [circuit] court’s own peril. The appellate court in Annapolis has repeatedly in many cases warned trial judges about essentially going off base and giving instructions that are not the approved Maryland pattern jury instructions. There are some occasions upon which there is an issue that is not addressed in a Maryland pattern jury instruction but this isn’t that case. I think this case does what is appropriate in this case and that is put the issue before the jury and the jury can decide whether the elements have been proven.

The circuit court delivered a near-identical version of Maryland Pattern Jury Instruction (“MPJI Cr.”) § 4:35.6: The defendant is charged with possessing a regulated firearm after having been convicted of a crime that disqualified him from possessing a regulated firearm. In order to convict[] the defendant, the State must prove that the defendant knowingly possessed a regulated firearm and that defendant was previously convicted of a crime that disqualified him from possessing a 9 regulated firearm. The State and the defense agree and stipulate that the gun in this case is a regulated firearm. The circuit court also delivered a jury instruction “[m]odified from MPJI Cr. § [4:35.6][,]” and requested by Petitioner Howling, for possession of ammunition by a disqualified person pursuant to Pub.

Safety § 5-133.1: The defendant is charged with possession of ammunition having been convicted of a crime that disqualifies him from possessing ammunition. In order to convict the defendant the State must prove that the defendant knowingly possessed ammunition and that the defendant was previously convicted of a crime that disqualified him from possessing ammunition. The jury convicted Petitioner Howling of possession of a firearm by a prohibited person, possession of ammunition by a prohibited person, and transporting a loaded a handgun in a vehicle. The circuit court sentenced Petitioner Howling to a suspended term of nine years’ imprisonment, and three years of unsupervised probation.

B. Petitioner Abongnelah Petitioner Abongnelah moved to suppress the firearm recovered from his person because it was obtained during a search incident to a warrantless arrest. The circuit court denied the motion and found probable cause to believe that Petitioner Abongnelah was in possession of a firearm as a convicted felon.5 The case proceeded to a jury trial on October 30 and 31, 2019. 5 The Court of Special Appeals affirmed the denial of the motion to suppress. Petitioner Abongnelah did not raise the issue on appeal before this Court. 10 The State introduced a jail call recording between Petitioner Abongnelah and an unidentified speaker. Petitioner Abongnelah admitted to possessing a firearm at the time of arrest: Unidentified speaker: I’m nervous[, t]hat’s all. [Petitioner] Abongnelah: I’m good.

I’m going to be all right. . . . It’s just a gun charge. You know what I’m saying? It’s not even a violent charge.

I ain’t, I ain’t rob nobody or nothing, but I just got caught with one of my, one of my dogs, man. *** I’m just protecting myself, man. . . . I’m black, I may be dead. . . . I’m staying out of the way. . . . I just so happened to get pulled over, and my man got pulled over . . . and I had a gun in my pocket. *** [J]ust so you know, . . . these calls is recorded.

So you know what I’m saying? Don’t say nothing[.] (Emphasis added). The parties stipulated that Petitioner Abongnelah had a prior conviction that prohibited him from legally possessing a firearm. The circuit court instructed the jury that “the State and the defendant agree and stipulate that the defendant was previously convicted of a crime that disqualifies him from possessing a regulated firearm.” The parties also stipulated to Petitioner Abongnelah’s date of birth, which established that he was under the age of twenty-one at the time of possession of the firearm on June 5, 2019.

Counsel for Petitioner Abongnelah moved for judgment of acquittal at the close of the State’s case, and renewed the motion at the close of evidence, arguing that there was 11 insufficient evidence that Petitioner Abongnelah knew his prior conviction prohibited possession of a firearm: [Counsel for Petitioner Abongnelah]: [T]he State presented zero evidence that he knew he was part of that prohibited class of people prohibited from possessing a firearm because of a crime of violence. . . . [A]t the end of last term, the [United States] Supreme Court . . . said in relation to the Federal Statute th[at] Congress intended for there to be a knowledge element. That knowledge element goes towards both elements knowing that he possessed the firearm and knowing that you are part of that prohibited class. *** [T]here is no evidence that he knew or that he was ever made aware that because of that prior conviction he was prohibited from possessing a firearm. *** THE COURT: . . . The law does not require at this time that [Petitioner Abongnelah] was aware that he was a disqualified person in possession of a regulated firearm. So, the State has satisfied its requisite burden with respect to a motion for judgment of acquittal as to the elements of the crime charged.

(Emphasis added). Counsel for Petitioner Abongnelah requested a jury instruction stating that the State must prove knowledge of prohibited status, which the circuit court denied. The circuit court delivered a substantially similar instruction to the one given in Petitioner Howling’s case.6 Counsel for Petitioner Abongnelah renewed his motion to add an instruction 6 The circuit court also gave a substantially similar instruction for possession of a firearm under the age of twenty-one: The defendant is charged with possessing a regulated firearm when he was under the age of 21. In order to convict the defendant, the State must prove one, that the defendant knowingly possessed a regulated firearm and two, (continued …) 12 consistent with Rehaif which “makes knowledge of his being prohibited from having a gun an element.” The jury found Petitioner Abongnelah guilty of being a person with a felony conviction in possession of a firearm in violation of Pub.

Safety § 5-133(c) and possession of a firearm under the age of twenty-one in violation of Pub. Safety § 5-133(d). The circuit court sentenced Petitioner Abongnelah to eight years of incarceration, with all but the mandatory five-year minimum suspended for the possession of a regulated firearm with a felony conviction. The circuit court also placed Petitioner Abongnelah on supervised probation for five years.

For the possession of a regulated firearm while under twenty-one, the circuit court sentenced Petitioner Abongnelah to five years of incarceration with all but two years suspended and five years of supervised probation to run concurrently with the possession of a firearm with a felony conviction. The Opinions of the Court of Special Appeals A. The Howling Opinion The Court of Special Appeals affirmed the decision of the circuit court. The intermediate appellate court did not find Rehaif “dispositive” because it involved the interpretation of a federal statute and did not announce a rule of constitutional law that (. . . continued) that the defendant was under 21 years of age at the time of that possession. The State and the defendant agree and stipulate that the defendant’s age was under the age of 21 on June 5, 2019. 13 would be binding on the states.

Howling, 2021 WL 402519 at ⁴ (quoting Mata v. United States, 969 F.3d 91, 93 (2d Cir. 2020)) (“the [United States] Supreme Court ‘was simply construing a [federal] statute.’”). After rejecting the application of Rehaif, the court found that its recent decision in Brice v. State, 225 Md. App. 666 , 126 A.3d 246 (2015), was controlling. In Brice, the court noted that “[t]here is no language in the statute requiring a defendant to know that he [or she] is disqualified. . . .” Id. at 694 , 126 A.3d at 263 . Therefore, according to the court, “to satisfy the mens rea requirement for [Pub.

Safety §] 5-133, the State [is] required to prove only that the defendant knew that he [or she] [is] in possession of a handgun.” Id. at 694, 126 A.3d at 263 . Applying the analysis from Brice to the instant case, the court found that “the State was only required to prove that [Petitioner] Howling knew he was in possession of a firearm and ammunition, not that [Petitioner] Howling knew his Pennsylvania conviction disqualified him from possessing a regulated firearm and ammunition in Maryland.” Howling, 2021 WL 402519 at ⁶. The court concluded that Petitioner Howling’s requested jury instructions predicated on the reasoning of the United States Supreme Court in Rehaif were not correct statements of Maryland law. The Court of Special Appeals held that the circuit court did not abuse its discretion by declining to give the requested jury instructions and by giving the pattern jury instructions instead.

Id. B. The Abongnelah Opinion The Court of Special Appeals also affirmed the circuit court in Petitioner Abongnelah’s case. Similar to Petitioner Howling’s case, the intermediate appellate court 14 declined to adopt the reasoning of the United States Supreme Court in Rehaif, which “held that the government must prove that not only did the defendant knowingly possess a firearm in violation of [18 U.S.C.] § 922(g) but also that the defendant knew of his status as a prohibited person under [18 U.S.C.] § 922(g).” Abongnelah, 2021 WL 1943262 at ⁶ (citation and footnote omitted) (emphasis added). By declining to adopt Rehaif, the court concluded that “the State only needs to prove that a defendant [knew] they [were] in possession of a firearm.” Id. at ⁷.

The court found that the State provided sufficient evidence to establish Petitioner Abongnelah’s knowledge of possession of a regulated firearm. MCPD officers testified that a firearm was recovered on Petitioner Abongnelah’s person. Id. A video posted to Petitioner Abongnelah’s Instagram account indicated that Petitioner Abongnelah shot at what appeared to be a police vehicle using the same firearm.

Id. Finally, in a jail call recording, Petitioner Abongnelah admitted that he was arrested while possessing a firearm. Id. In a Reply Brief submitted to the court, Petitioner Abongnelah argued that the State must prove that the defendant knew he was a felon at the time of the incident.

The court declined to address this argument because it was not raised in the circuit court or opening briefs. Id. Assuming arguendo that knowledge of status was required, the court found that the State met its evidentiary burden because Petitioner Abongnelah stipulated to the fact that he committed a prior felony, which prohibited him from possessing a firearm pursuant to Pub. Safety § 5-133(c).

Id. at ⁸. 15 The court rejected Petitioner Abongnelah’s argument that the circuit court erred by not giving a jury instruction aligned to Rehaif. Id. Since it had already concluded that Rehaif did not apply to Maryland law, the Court of Special Appeals held that the circuit court did not err by giving a jury instruction that, with respect to the mens rea element, only required knowledge of possession of a prohibited firearm pursuant to Pub. Safety § 5-133(c).

The Contentions of the Parties A. Petitioner Howling Petitioner Howling contends that this Court should adopt the reasoning of the United States Supreme Court in Rehaif and require that the State prove knowledge of a defendant’s prohibited status pursuant to Pub. Safety § 5-133 and § 5-133.1. Petitioner Howling notes that similar to the United States Supreme Court in Rehaif, this Court also presumes a mens rea element of knowledge when interpreting criminal statutes. Applying this presumption to the instant case would “advance society at large and separate ‘wrongful from innocent acts.’” (Citation omitted).

Petitioner Howling argues that recognizing a scienter requirement of knowledge of prohibited status would be consistent with this Court’s decisions in Chow v. State, 393 Md. 431 , 903 A.2d 388 (2006), and Dawkins v. State, 313 Md. 638 , 547 A.2d 1041 (1988). According to Petitioner Howling, Chow held that the defendant “must know that the activity they are engaging in is illegal.” (Citation omitted). Petitioner Howling also reads Dawkins for the proposition that mens rea, including knowledge of illegal status, should be adjudicated by a jury. Petitioner Howling asserts that the need for an element of 16 knowledge is particularly acute “when multiple states have differing statutes[]” criminalizing possession.

Petitioner Howling asks this Court to discount the Court of Special Appeals’ reasoning in Brice, because the legal analysis was “very abbreviated[]” and “the facts were so negative against the Appellant Brice[.]” Instead, Petitioner Howling contends that this Court should rely on the reasoning of Lawrence v. State, 475 Md. 384 , 257 A.3d 588, 602 (2021), which analyzed whether the General Assembly intended for Crim. Law § 4-203 to be a strict liability crime, to find that Pub. Safety § 5-133 requires knowledge of prohibited status. Petitioner Howling argues that unlike Crim.

Law § 4-203, Pub. Safety § 5-133 is modified by the word “knowingly” in Pub. Safety § 5-144, and any ambiguity regarding the statute should be resolved in favor of the defendant pursuant to the rule of lenity. Finally, Petitioner Howling asserts arguendo that if this Court does not generally recognize a knowledge of status requirement pursuant to Pub.

Safety § 5-133, the facts in Petitioner Howling’s particular case supported a jury instruction that specifically recognized the knowledge requirement. B. Petitioner Abongnelah Similar to Petitioner Howling’s argument, Petitioner Abongnelah contends that there was insufficient evidence to establish a conviction of an illegal possession of a firearm because the State failed to prove that Petitioner Abongnelah knew that he belonged to the category of persons prohibited from possessing a firearm. According to Petitioner Abongnelah, the text of Pub. Safety § 5-133 imposes the requirement of knowledge of prohibited status by reference to Pub.

Safety § 5-144, which includes the word 17 “knowingly[.]” The legislative history of the Public Safety Article, as explained by this Court in Jones v. State, 420 Md. 437 , 23 A.3d 880 (2011), confirms this interpretation of the plain text. Petitioner Abongnelah argues that even if Rehaif is not binding on this Court, it offers “a highly persuasive guide to reading” Pub. Safety § 5-133 because “the federal and Maryland statutes are directly analogous” and both the United States Supreme Court and this Court employ “the same presumption in favor of requiring mens rea. . . .” This presumption in favor of mens rea should, according to Petitioner Abongnelah, prompt this Court to recognize an element of knowledge of prohibited status even if it also concludes that Pub. Safety § 5-144 does not apply.

Petitioner Abongnelah asserts that the Court of Special Appeals incorrectly found arguendo that the parties’ stipulation of Petitioner Abongnelah’s prior felony conviction would have satisfied the element of knowledge of prohibited status. According to Petitioner Abongnelah, the stipulation did not establish knowledge of prohibited status at the time of offense. Petitioner Abongnelah also contends that the court erred by finding that the knowledge issue was unpreserved because defense counsel for Petitioner Abongnelah used language, both at trial, and in the opening brief to the Court