In Re Antonette H.

³⁴⁴ CHARLES E. MOYLAN, JR. (Retired, Specially Assigned), J. The appellant, Antonette H., adjudicated to be delinquent in the Circuit Court for Prince George’s County for an act that would have been theft if committed by an adult, presents us with a delightful dilemma. The evidence was legally sufficient to support the inference that the appellant was a receiver of stolen goods (or, in more modern terms, a criminal possessor) or to support the alternative inference that she was the original “handholding” thief for whom the hue and cry could have been raised (with full credit for both a caption and an asportation). The appellant is happy to accede to the State’s choice of either option, but, she stoutly maintains, if she is to be treated as the receiver (or criminal possessor), then she was prosecuted in the wrong state.

If, on the other hand, she is to be treated as the actual thief who took, stole, and carried away the property, then her conviction was fatally inconsistent with her acquittal for an act that was an indispensable component of the taking and carrying away. The appellant has successfully impaled the State on the horns of the dilemma. 1 The Common Basis For The Two Alternative Inferences On August 11, 2009, at 6:30 A.M., Robert Tucker parked his 1995 Jeep Cherokee in the parking lot of his apartment ³⁴⁵ building in Temple Hills, Prince George’s County. At some time later that day (we are not told exactly when), he discovered that his car had been stolen. He had not, incidentally, left his keys in the car nor did he leave the motor running.

At 4:30 P.M. on the next day, August 12, 2009, Officer Michael Milocheck of the Washington, D.C. Metropolitan Police Department observed the Jeep Cherokee being driven on Alabama Avenue in Washington Southeast. As he watched, the Cherokee suddenly struck a parked vehicle and came to a sudden and unintended stop. Three individuals abandoned the car and fled on foot. The appellant, who had been driving the car, was one of the three and was apprehended a short distance away.

The ignition to the car had been “punched out.” Officer Milocheck explained that car thieves often “punch out” an automobile’s ignition, a recognized technique for starting a car without a key. “The vehicle had a punched ignition consistent with that of stolen vehicles.” When Mr. Tucker got his car back, he observed that one of the car’s windows had been broken as well as the ignition’s having been ripped out and that neither of these damages had been present when last he saw his car. A. Possession of Recently Stolen Goods When the appellant was first observed behind the wheel of the stolen car, the time lapse since its original theft was something less than 34 hours. She qualified, therefore, for the possession of “recently stolen goods.” Debinski v. State, 194 Md. 355, 359-60 , 71 A.2d 460 (1950); Butz v. State, 221 Md. 68, 77 , 156 A.2d 423 (1959); Cason v. State, 230 Md. 356, 358 , 187 A.2d 103 (1963); Anglin v. State, 1 Md.App. 85, 93 , 227 A.2d 364 (1967), cert. denied, 246 Md. 755 (1967). B. The Inadequately Explained Possession The appellant took the stand and testified that when she first saw the Jeep Cherokee “around” her Washington neighborhood, it was being driven by a male friend named Marcus, one of the three occupants of the vehicle at the time of the ³⁴⁶ 4:30 P.M. collision.

The appellant explained that Marcus let her drive the car. She did acknowledge, however, that she knew full well the car had been stolen when she asked to drive it. That brings us face-to-face with the second requirement for an inculpatory inference. How, if at all, was the possession explained?

In announcing his verdict, the trial judge stated: “I don’t find the Respondent’s testimony all that credible. I do find the State’s witnesses very credible.” He then found the appellant guilty of theft on the basis of the inference of theft arising out of the unexplained possession of recently stolen goods. Let it be carefully noted at this point that the past participle “unexplained,” as used in the caselaw, refers not simply to the total absence of an attempted explanation but also to the failure to present a plausible explanation, to wit, an explanation that is actually believed. In Brewer v. Mele, 267 Md. 437, 449 , 298 A.2d 156 (1972), the Court of Appeals was painstaking in its phraseology in this regard: We have long and consistently held that exclusive possession of recently stolen goods, absent a satisfactory explanation, permits the drawing of an inference of fact strong enough to sustain a conviction that the possessor was the thief.

(Emphasis supplied). In People v. Galbo, 218 N.Y. 283, 290 , 112 N.E. 1041, 1044 (1916), Judge (future Supreme Court Justice) Cardozo was also carefully precise: It is the law that recent and exclusive possession of the fruits of crime, if unexplained or falsely explained, will justify the inference that the possessor is the criminal. (Emphasis supplied). Judge Prescott wrote to the same effect for the Court of Appeals in Jordan v. State, 219 Md. 36, 45 , 148 A.2d 292 (1959): His very implausible account of his close position with relation to the stolen vehicle, ... may well have led the court to conclude that his story was concocted out of the whole cloth. ³⁴⁷ (Emphasis supplied).

The appellant’s attempted explanation in this case did not fly and was, therefore, no better than no explanation at all. The Road to Consolidated Theft The launching pad of an unexplained or unsatisfactorily explained possession of recently stolen goods was in this case fully operational. It then became a question of where does the inference, once launched, go from there. The inference could take off in either of two directions.

The two destinations, however, are not unrelated. For several centuries at least, larceny and receiving stolen goods were separate crimes with separate and distinct elements. Larceny, of course, was one of the nine original common law felonies (“MR. & MRS. LAMB”). 2 Although initially emerging out of the shadow of larceny as a form of accessoryship-after-the-fact, receiving stolen goods was fully recognized in England as a statutory crime in its own right by no later than 1827 by 7 & 8 Geo.

IV, chapter 29, § 54. Maryland actually anticipated Parliament’s passage of such a statute and created (or at least recognized) receiving stolen goods as an autonomous criminal offense by chapter 138 of the Acts of 1809. 3 Jordan v. State, 219 Md. 36, 43 , 148 A.2d 292 (1959) (“Our statutes do not define the crime of receiving stolen property, they merely prescribe the punishment therefor.”); Henze v. State, 154 Md. 332 , 140 A. 218 (1928). Although receiving was regularly characterized as a larceny-related offense, the relationship between the two crimes was at times a tricky one. Unlike their latter-day, post-1979, descendants, they were once mutually exclusive.

The original thief could not be a receiver, one of the explanations being that he could not unlawfully receive ³⁴⁸ stolen property from himself. Conversely, it was always a successful defense to a charge of receiving if the alleged receiver were shown to have been the original thief. By Chapter 849 of the Acts of 1978, effective as of July 1, 1979, however, Maryland brought both larceny and receiving stolen goods together (along with dozens of other larceny-related offenses) under the broad umbrella of the then new Consolidated Theft Act. State v. Burroughs, 333 Md. 614, 623 , 636 A.2d 1009 (1994).

That consolidated statute is now codified as Maryland Code, Criminal Law Article, §§ 7-101 through 7-110. The scope of the Consolidated Theft Act is set out, in part, in § 7-102(a): Conduct described as theft in this part constitutes a single crime and includes the separate crimes formerly known as: (1) larceny; (2) larceny by trick; (3) larceny after trust; (4) embezzlement; (5) false pretenses; (6) shoplifting; and (7) receiving stolen property. Section 7-104 is the operative criminal prohibition. That section spells out six separate modalities for committing the now very generic crime of theft.

It is subsection (a) that essentially covers what would formerly have constituted common law larceny, as the subsection provides, in pertinent part: A person may not wilfully or knowingly obtain or exert unauthorized control over property. (Emphasis supplied). In Moylan, Maryland’s Consolidated Theft Law and Unauthorized Use (MICPEL, 2001), § 4.2, p. 24, it is observed: Even if the notion of exerting control is broad enough to subsume the narrower instance of obtaining control, the focus on “obtaining” at least emphasizes the criminality of the defendant’s conduct in the act of initial acquisition. It is the act of obtaining unauthorized control that most unam ³⁴⁹ biguously embraces, but no longer makes necessary, what once were the trespassing, taking and carrying way elements of common law larceny.

(Emphasis supplied). This subsection (a) remains the “heartland” of the new and broader crime of theft. By contrast, it is subsection (c) that brings into the fold the related criminal behavior that once constituted the separate crime of receiving stolen property. Subsection (c) provides, in pertinent part: A person may not possess stolen personal property knowing that it has been stolen, or believing that it probably has been stolen.

(Emphasis supplied). Moylan, op. cik, § 6. 1, p. 39, notes with respect to the change from the crime of receiving into the crime of unlawful possession: The key to understanding this aspect or subdivision of the theft law is to note and then to appreciate the significance of the name change from “receiving stolen goods” to “criminal possession.” Any conduct that would, before July 1, 1979, have made one guilty of the common law offense of receiving stolen goods would now make one guilty of theft generally and of that subdivision of theft, § 7-104(c) known as criminal possession particularly. Criminal possession, however, is a broader crime than was receiving stolen goods, because several required elements of the earlier offense have been eliminated. The Subcommittee Commentary noted in this regard: “This criminal possession concept is new to Maryland law.

Its scope is broader than the crime of ‘receiving stolen goods’ which it encompasses.” (Emphasis supplied). Just as larceny and receiving, before 1979, constituted distinct crimes with distinct characteristics, the separate modalities for committing theft continue to possess, post 1979, distinct characteristics. Although subsection (a) and subsection (c) are no longer mutually exclusive (as their progenitors once were), they are nonetheless different, as are the respective inferences that lead to them. It is no longer a successful ³⁵⁰ defense to subsection (c) that one is actually guilty under subsection (a).

Since theft is now a single and all-embracing crime, transferring one’s guilt from subsection (c) to subsection (a) would just be a case of “out of the frying pan into the fire.” A Choice of Inferences Just as the subsection (a) modality of theft, the obtaining of unauthorized control, and the subsection (c) modality, the criminal possession, remain distinct, so too are the inferences distinct that may lead to those respective conclusions. From the common denominator predicate of inadequately explained possession of recently stolen goods, a choice of inference arises, and the choice, post-1979, is indistinguishable from the choice, pre-1979. For either original crime or for either modality of the new consolidated crime, the proof would be by inference from the inadequately explained possession of the recently stolen automobile. Brewer v. Mele, 267 Md. at 449 , 298 A.2d 156 , described the choice of inferences: We have long and consistently held that exclusive possession of recently stolen goods, absent a satisfactory explanation, permits the drawing of an inference of fact strong enough to sustain a conviction that the possessor was the thief ... or, under appropriate circumstances, that the possessor was a receiver of stolen goods.

(Emphasis supplied). The avenues of proof for these two distinct modalities of consolidated theft are as distinct today as they were for the two predecessor crimes before 1979. The contrast between the two modalities of theft is as sharp as ever was the contrast between the predecessor crimes. Offutt v. State, 55 Md.App. 261, 264-65 , 463 A.2d 876 , rev’d on other grounds, 297 Md. 520 , 467 A.2d 181 (1983), is on point: The evidence was legally sufficient to support the finding of guilt in two separate ways.

The law is settled that at least two separate permitted inferences may follow from the predicate fact of possession of recently stolen goods. ³⁵¹ “In the present case, the evidence was, therefore, legally sufficient to support a jury finding that the appellant was the thief within the contemplation of the common law of larceny. That is now one of the forms of criminal conduct rendering him eligible for conviction under Maryland’s new Consolidated Theft Statute. Art. 27, § 342(a) [now CR Article, § 7-104(a) ] provides: “A person commits the offense of theft when he willfully or knowingly obtains control which is unauthorized.... ” In the alternative, the evidence was also legally sufficient to support a jury finding that the appellant was a receiver of stolen goods within the contemplation of the common law of receiving. That is also now one of the alternative forms of criminal conduct rendering him eligible for conviction under Maryland’s new Consolidated Theft Statute, Art. 27 § 342(c) [now CR Article, § 7-104(c) ] provides: “A person commits the office of theft if he possesses stolen personal property knowing that it has been stolen.” (Emphasis supplied).

Rice v. State, 311 Md. 116, 135 , 532 A.2d 1357 (1987) (“[T]he same evidence of possession will support each of two inconsistent views of the appellant’s actus reus, that is, it will support inference of violation of either subsection.”). Inferential Similarities and Dissimilarities With their long and distinct histories still vitalizing them, the subjects before us for examination are two separate and finely calibrated inferences and not a single undifferentiated inference. They may, to be sure, both establish generic theft, but they establish very different modalities of theft. With criminal possession, as was true with receiving stolen goods before it, a critical element of guilt is that the possessor (or receiver) either knew or had good reason to know that the goods were stolen.

Jordan v. State, 219 Md. at 48—49, 148 A.2d 292 ; Henze v. State, 154 Md. at 341 , 140 A. 218 . The primary function of the inculpatory inference when dealing with this modality of theft (or formerly with the crime ³⁵² of receiving) is to supply this critical element of scienter. The inference does not carry us anywhere in time or space; it goes only into the mens rea of the possessor. It is a sedentary inference, confined to the “here and now” of its predicate facts.

It establishes the necessary scienter. By contrast, with the subsection (a) modality of obtaining control, as formerly with larceny’s elements of caption and asportation, there is generally no problem in concluding that the thief knew what he was doing. The concern is more with the actus reus than with the mens rea. What we seek to know is where the obtaining of control (or the trespassory taking and carrying away) happened and when it happened.

The inculpatory inference in this regard is not concerned with scienter. See Rice v. State, 311 Md. at 135 , 532 A.2d 1357 (“With respect to the mental state, subsection (c) has a scienter requirement absent in subsection (a).”). For proof of that modality of theft that once was classic larceny, the evidentiary instrument that is needed, rather, is the inferential magic carpet, carrying the fact-finder from the time and place of the unexplained possession back to a possibly far-removed place at some earlier time. Albeit arising from a common denominator predicate, these respective inferences do very different things.

Modality (a) does not require a showing of scienter, but modality (c) does. Modality (c) does not require being transported from the here and now of present possession to a different place at a different time, but modality (a) does. Although both inferences arise out of precisely the same factual predicate, there is a dramatic difference in what they do and how they do it. One could prove that the appellant committed a criminal act (stealing a car) in the State of Maryland on August 11, 2009.

The other could prove that the appellant committed a different criminal act (criminal possession) miles away in the District of Columbia on a different day, August 12, 2009. That’s a big difference, a difference deserving of some analytic attention. ³⁵³ As legally sufficient evidence of the appellant’s guilt of theft, either of these two inferences arising from her unsatisfactorily explained possession of the recently stolen Jeep Cherokee could have been brought to bear. When brought to bear, what might these two very different inferences have done, and what impact might they have had on the possible guilt of the appellant? The Situs of Criminal Possession Turning our focus first on the more sedentary inference, it would have been sufficient to show that the appellant would have been guilty, assuming that the crime occurred in Maryland, of criminal possession pursuant to § 7-104(c) or could have been guilty, prior to 1979, of the predecessor crime of receiving stolen goods.

That inference