In Re Colby H.

CATHELL, Judge. On December 29, 1998, a petition was filed by the State’s Attorney for Baltimore City alleging that petitioner, Colby H., was a delinquent child based upon four alleged firearm violations. 1 On January 15,1999, an adjudicatory hearing was held before a master for the Circuit Court for Baltimore City where the master made a finding of fact that petitioner was involved in one of the four counts against him 2 — carrying a concealed weapon in violation of Maryland Code (1957, 1996 Repl.Vol.), Article 27, section 36. 3 On February 9, 1999, a disposition hearing was held by the master at which time it was recommended that petitioner be placed on probation to the Maryland Department of Juvenile Justice for an indefinite period. 4 Petitioner filed a Notice of Exceptions on February 11, 1999. On March 8, 1999, these exceptions were heard by a judge in the Circuit Court for Baltimore City. At that hearing, the court held its decision sub curia so that it could listen to the recording of the master’s adjudicatory hearing.

On April ⁷⁰⁵ 16, 1999, after listening to the recording, the court overruled petitioner’s exceptions. A timely appeal to the Court of Special Appeals was noted on May 3, 1999. In an unreported decision filed April 17, 2000, the Court of Special Appeals upheld the trial court’s delinquency finding. We granted petitioner’s Writ of Certiorari to answer one question: Is the evidence sufficient to establish “wearing and carrying” of a dangerous or deadly weapon in violation of Md. AnmCode, Art. 27, § 36, where the prosecution proves nothing more than [that] the police found a shotgun under [a] mattress in Respondent’s room at a time when Respondent was not even home?

We hold that, under the circumstances of this case, the evidence was insufficient to establish “wearing and carrying” of a dangerous or deadly weapon in violation of Article 27, section 36. Accordingly, we shall reverse the decision of the Court of Special Appeals. Facts On December 28, 1998, petitioner’s mother, Ms. H., found a shotgun under the mattress in petitioner’s bedroom and called the police. Officer Thomas Sernek received the call and responded to petitioner’s home at 4102 Eierman Avenue in Baltimore City.

Upon his arrival, Officer Sernek was met by petitioner’s mother who explained that she had found the gun when she was cleaning petitioner’s room. She led the officer to petitioner’s bedroom where, under petitioner’s mattress, Officer Sernek discovered a pistol-gripped shotgun. He seized the weapon and unloaded three shotgun shells from it. Petitioner was not home at the time the shotgun was found by his mother nor was he home at the time it was seized by Officer Sernek.

After seizing the weapon, Officer Sernek transported petitioner’s mother to another location, returned to petitioner’s home with another officer, and knocked on the front door. 5 At ⁷⁰⁶ this time, petitioner was home and when he answered the door, he was arrested by the two officers and transported to the Northern District Police Station for processing. Officer Sernek testified at the adjudication hearing that petitioner, after being properly advised of his Miranda rights, voluntarily stated that he had purchased the shotgun from a “junkie” on a street corner for $20.00. At the January 15, 2000 adjudicatory hearing in the Circuit Court for Baltimore City, the juvenile master found that petitioner had purchased the gun and that he had hidden the gun under the mattress. [The master] made the inference that [petitioner] concealed the gun from the time he bought it until the time he hid it under the mattress. Based on this finding of fact, the juvenile master found petitioner not involved on the first three counts and found petitioner involved on the fourth count against him — carrying a concealed weapon in violation of Article 27, section 36.

On February 9,1999, a disposition hearing was held at which time it was recommended that petitioner be placed on probation to the Maryland Department of Juvenile Justice. Petitioner filed a Notice of Exceptions on February 11, 1999. These exceptions were heard on March 8, 1999 by a judge in the Circuit Court for Baltimore City. At that hearing, the court held its decision sub curia so that it could listen to the recording of the adjudicatory hearing.

The court, at the hearing, overruled petitioner’s exceptions finding that the loaded shotgun was a dangerous weapon and adopted the master’s finding that petitioner was involved with illegally wearing or carrying it. The court agreed with the master’s inference that petitioner “had to wear or carry the shotgun from the street corner to his home.” Additionally, the court found that the weapon’s presence under petitioner’s mattress “may satisfy the ‘in such proximity to him’ requirement as to ⁷⁰⁷ make it available for his immediate use and therefore satisfies the standard.” The court concluded: Based on my own independent review, I do believe that it’s a proper inference that [petitioner] would have to wear or carry the shot gun from the street corner to his home, and if the shot gun was received [concealed?] or located underneath his mattress, I believe it satisfies the “in close proximity to him requirement” of the statute. Really, the next quick argument raised by [petitioner], is that the person carrying the weapon must have the general intent to carry the instrument for [its] use as a weapon either offensively or in defense. This is a question of fact to be determined by the fact finder based on all the circumstances....

In this case, the controverted [sic ?] testimony is we have a 14 year-old hiding a loaded and operable shot gun, with a pistol grip, under his mattress, after admittedly buying it on a street corner. I do believe, based on that, that the [c]ourt can infer the intent necessary under the statu[t]e. Next, [petitioner] [posits] in his Memorandum of law, that a conviction cannot lay where a weapon is found in [petitioner’s] home. There is a discussion about the statute having potentially far reaching implications of public policy.

I do think, that it should be clear, as a result of this [c]ourt’s decision, that a 14 year-old has no legal right to possess and buy a firearm. He is not an adult homeowner in legal possession of a shotgun and therefore, it is not needed to protect his home and his family. Indeed, the purpose of a pistol grip on a shot gun is to make the weapon concealable, which is not a concern when a weapon is discovered concealed in a home.... Accordingly, for the aforegoing reasons, and based upon this [c]ourt’s own independent review of the record, I do find that [petitioner] carried a dangerous and deadly weapon concealed upon, or about his person, or in such proximity to him as would make it available for his immediate use, and he did have the general intent to carry the instrument for [its] use as a weapon, either offensively or defensively.

Accordingly, based on this [c]ourt’s own independent review of the record, I find that the State had ⁷⁰⁸ satisfied [its] burden beyond a reasonable doubt and accordingly, I will deny [petitioner’s] exception. The only evidence presented at the adjudicatory hearing was petitioner’s statement to the officer that he bought the weapon on a street corner and the fact that his mother, and the officer, found it under his mattress in his bedroom in his home. There was absolutely no other evidence regarding the status of the shotgun from the time it was purchased to the time that it was discovered by petitioner’s mother. The record does not reflect when Colby H. purchased the weapon, the specific location of its purchase, when the purchase was made, the modality of conveyance of the weapon from the street corner to the place it was found, or the identity of who conveyed it.

On appeal, the Court of Special Appeals rejected as unsupported by fact the juvenile master’s inference that petitioner “had worn or carried the shot gun concealed ‘on or about his person’ in order to transport the gun from the street corner where he acquired it to his bedroom.” That court acknowledged that the State had directly proved that petitioner had purchased a dangerous weapon on an unnamed street corner from a “junkie” and that this dangerous weapon was found in petitioner’s bedroom under his mattress. However, that court also recognized and held that there was absolutely no evidence presented that petitioner ever concealed the weapon when he transported it from the corner to his residence. The Court of Special Appeals stated: The record does not disclose either the time of day or the place where [petitioner] purchased the weapon. The shot gun could have been purchased ten feet from [petitioner’s] front door or ten miles away from his home.

The sale could have been made at 8:00 a.m. when no one else was around, or at high noon when hundreds of people might have seen [petitioner] if he had dared to carry the weapon openly. The trier of fact had no knowledge as to whether [petitioner] walked home with the shot gun or whether he had someone drive him home. With so little information, it simply cannot be inferred legitimately that [petitioner] con ⁷⁰⁹ cealed the weapon when he transported it from the place of purchase to his home. [6] We agree. The Court of Special Appeals did hold, however, that there was sufficient proof to infer legitimately that the weapon, while under the mattress, was concealed and in such proximity to petitioner as would make it available to him for immediate use.

Therefore, the Court of Special Appeals affirmed the judgment of the trial court and held “that there was sufficient evidence from which a reasonable fact-finder could conclude, beyond a reasonable doubt, that [petitioner] violated Section 36(a).” We disagree with this holding. The evidence was insufficient to establish that petitioner illegally wore and carried a dangerous or deadly weapon concealed upon his person in violation of Article 27, section 36. Part One Article 27, Section 36 The threshold issue before this Court is to determine the scope of Maryland’s concealed weapon statute and whether it applies to legal weapons 7 stored in a Maryland resident’s home. Maryland Annotated Code (1957,1996 Repl.Vol.), Article 27, section 36 provides: § 36.

Carrying or wearing concealed weapon; carrying openly with intent to injure; carrying by person under eighteen at night in certain counties. (a) In general. — (1) Every person who shall wear or carry any dirk knife, bowie knife, switchblade knife, star knife, sandclub, metal knuckles, razor, nunchaku, or any ⁷¹⁰ other dangerous or deadly weapon of any kind, whatsoever (penknives without switchblade and handguns, excepted) concealed upon or about his person, and every person who shall wear or carry any such weapon, chemical mace, pepper mace, or tear gas device openly with the intent or purpose of injuring any person in any unlawful manner, shall be guilty of a misdemeanor, and upon conviction, shall be fined not more than $1,000 or be imprisoned in jail, or sentenced to the Maryland Department of Correction for not more than three years. [Some emphasis added.] When attempting to discern the intention of the Legislature in enacting a particular statute, we have recently said in Edgewater Liquors, Inc. v. Liston, 349 Md. 803 , 709 A.2d 1301 (1998): “In construing the meaning of a word in a statute, the cardinal rule is to ascertain and carry out the real legislative intention.” Legislative intent generally is derived from the words of the statute at issue. “We are not constrained, however, by ... ‘the literal or usual meaning’ of the terms at issue.” “Furthermore, we do not read statutory language ‘in isolation or out of context [but construe it] in light of the legislature’s general purpose and in the context of the statute as a whole.’ ” Id. at 807-08 , 709 A.2d at 1303 (internal citations omitted) (alteration in original). We commented in an earlier case: When we pursue the context of statutory language, we are not limited to the words of the statute as they are printed in the Annotated Code. We may and often must consider other “external manifestations” or “persuasive evidence,” including a bill’s title and function paragraphs, amendments that occurred as it passed through the legislature, its relationship to earlier and subsequent legislation, and other material that fairly bears on the fundamental issue of legislative purpose or goal, which becomes the context within which we read the particular language before us in a given case. ⁷¹¹ ...

Thus, in State v. One 1983 Chevrolet Van, 309 Md. 327 , 524 A.2d 51 (1987), ... [although we did not describe any of the statutes involved in that case as ambiguous or uncertain, we did search for legislative purpose or meaning — what Judge Orth, writing for the Court, described as “the legislative scheme.” ... See also Ogrinz v. Jomes, 309 Md. 381 , 524 A.2d 77 (1987), in which we considered legislative history (a committee report) to assist in construing legislation that we did not identify as ambiguous or of uncertain meaning. Kaczorowski v. Mayor and City Council of Baltimore, 309 Md. 505, 514-15 , 525 A.2d 628, 632-33 (1987); see Laznovsky v. Laznovsky, 357 Md. 586, 606-07 , 745 A.2d 1054, 1065 (2000); State v. Bell, 351 Md. 709, 717-19 , 720 A.2d 311, 315-16 (1998); see also Williams v. Mayor & City Council of Baltimore, 359 Md. 101, 115-17 , 753 A.2d 41, 49 (2000); Riemer v. Columbia Medical Plan, 358 Md. 222, 235-36 , 747 A.2d 677, 684-85 (2000). The language of the statute at issue creates one offense— the carrying of a dangerous weapon under either of two circumstances: (1) concealed; or (2) openly with the intent to injure.

Eldridge v. State, 329 Md. 307, 313 , 619 A.2d 531, 534 (1993). In the case sub judice, we are concerned with the first way the offense can be committed — by carrying a concealed dangerous weapon. For our analysis it will be helpful to reduce the statute to the language of the statute pertinent to the case at bar: “Every person who shall wear or carry ... any ... dangerous or deadly weapon of any kind, whatsoever ... concealed upon or about his person, ... shall be guilty of a misdemeanor.... ” Looking to the plain language of the statute we recognize that there are three distinct elements necessary to constitute a violation. First, the weapon in question must be one of the weapons listed or considered to be a dangerous or deadly weapon.

In Anderson v. State, 328 Md. 426, 438 , 614 A.2d 963, 968 (1992), we said: ⁷¹² In order to violate § 36(a) by the concealed wearing or carrying of an instrument which has not legislatively been declared to be a dangerous or deadly weapon per se, the trier of fact must first determine whether the instrument constitutes a “dangerous or deadly weapon.” The concealed carrying prohibition of § 36(a) is not violated simply because the instrument can be used to inflict serious or deadly harm. The person carrying the object must have at least the general intent to carry the instrument for its use as a weapon, either of offense or defense. It is a question of fact, to be decided based on all of the circumstances. There is no question in the case at bar that the loaded, operable shotgun in question falls under the category as a dangerous and deadly weapon. 8 Second, the person must be wearing or carrying a weapon. “Carry,” taken in its plain meaning, is defined as “to move while supporting; convey; transport” or “to wear, hold, or have around one.” The Random House Dictionary of the English Language 227 (1983).

Similarly, “wear” is defined as ⁷¹³ “to carry or have on the body or about the person as a covering, equipment, ornament, or the like.” Id. at 1616. Recently, the Supreme Court of the United States utilized Black’s Law Dictionary’s definition of “Carry arms or weapons” as “[t]o wear, bear or carry them upon the person or in the clothing or in a pocket, for the purpose of use, or for the purpose of being armed and ready for offensive or defensive action in case of a conflict with another person.” Muscarello v. United States, 524 U.S. 125, 130 , 118 S.Ct. 1911, 1915 , 141 L.Ed.2d 111 (1998), quoting Black’s Law Dictionary 214 (6th ed.1990). However, the Supreme Court in Muscarello also recognized another “form of an important, but secondary, meaning of ‘carry,’ a meaning that suggests support rather than movement or transportation, as when, for example, a column ‘carries’ the weight of an arch. In this sense a gangster might ‘cany’ a gun (in colloquial language, he might ‘pack a gun’) even though he does not move from his chair.” Id. at 131 , 118 S.Ct. at 1915-16 , 141 L.Ed.2d 111 (citation omitted).

The statute plainly states that it is a violation for a person to “wear or carry ” a concealed deadly weapon. The weapon must be concealed erad it must be either worn or carried. If it is neither worn nor carried, it is not illegal to conceal it. We hold that the Legislature merely intended that the weapon needed to be on the body or about the person and concealed.

It is not necessary that the weapon actually be transported from place to place. Third, the weapon must be concealed upon or about the person. In Corbin v. State, 237 Md. 486 , 206 A.2d 809 (1965), we explained the scope of “upon or about” when we said that “[i]n order to support [a] conviction of the carrying or wearing a dangerous or deadly weapon, it [is] necessary that the State establish the fact that the accused was carrying the weapon or that it was in such proximity to him as would make it available for his immediate use.” Id. at 491, 206 A.2d at 812 (emphasis added) (citing Veney v. State, 227 Md. 608 , 177 A.2d 883 (1962)). In Corbin , we held that Corbin was not in such proximity to two guns, which were concealed in his car while he was standing beside the car and therefore was ⁷¹⁴ not in violation of Article 27, section 36.

It is clear from Corbin that we have limited the term “wear” to include areas that are in very close proximity to an alleged offender. In Corbin , we recognized that a deadly weapon needed to be in such close proximity to the person so as to be available for his immediate use in order to constitute a violation of Article 27, section 36. Such an interpretation makes sense in the context where the weapon concealed is in close proximity to the defendant, and it is “show that the defendant had at least the ‘general intent’ to carry the instrument for use as a weapon.” State v. Brinkley, 102 Md.App. 774, 779 , 651 A.2d 465, 467 (1995); see also Anderson, 328 Md. at 443 , 614 A.2d at 971 (“Factors to be considered include (1) the nature of the instrument, i.e., its size, shape, condition and possible alteration; (2) the circumstances under which it is carried, ie., the time, place and situation in which defendant is found with it; (3) defendant’s actions vis-a-vis the item; and (4) the place of concealment.” (quoting State v. Blea, 100 N.M. 237, 238-39 , 668 P.2d 1114, 1115-16 (Ct.App.1983))). The State has merely proven that there was a weapon under petitioner’s mattress and that the weapon was purchased by petitioner.

We do not have any other facts before us concerning the circumstances surrounding the placement of the weapon beneath the mattress and the State has failed to demonstrate that petitioner had the general intent of doing anything other than placing the weapon in its hiding place in the bedroom of his home, presumably a place of safety to him. In the case sub judice, the Court of Special Appeals agreed with the ruling of the trial judge and concluded that “although [petitioner] did not carry the gun while concealed, he concealed it in such close proximity to himself [under the mattress] that it was available for his immediate use.” Under this interpretation of Article 27, section 36, the fact that petitioner was in close proximity with the shotgun at the time he concealed it under his mattress, although he was nowhere near at the time it was found, is sufficient to sustain a conviction. The State has proven, in the courts below, only ⁷¹⁵ two instances where the weapon might have been in close proximity to petitioner and available for his immediate use— when he bought it and when he placed it under his mattress. That is not enough to sustain a conviction for possessing a concealed weapon.

The Court of Special Appeals’ interpretation of Article 27, section 36 distorts the ruling of Corbin as it makes it a violation of Article 27, section 36 simply to conceal a deadly weapon. 9 The weapon was not discovered on petitioner while he was on the street or in a public place. In fact, as we discussed, supra, petitioner was not even home at the time the shotgun was found by his mother nor was he home at the time it was seized by Officer Sernek. The weapon was discovered and seized inside petitioner’s place of residence when he was not present. He was not “carrying” or “wearing” it while it was concealed.

Part Two Weapons on Private Property The true issue in this case is whether a conviction of wearing and carrying a dangerous or deadly weapon in violation of Article 27, section 36, can be sustained where the weapon in question, otherwise legal to possess, is found in a place not in open view in the residence of the alleged offender but in close proximity to him. We hold that it cannot. State v. Brinkley, 102 Md.App. 774 , 651 A.2d 465 (1995), relied on by the State, is distinguishable. In Brinkley , the Court of Special Appeals first addressed the issue, which is presented today, “whether the crime of carrying a concealed weapon may be accomplished when the accused is on private property.” Id. at 775 , 651 A.2d at 465 .

Brinkley was a guest at a private residence in Montgomery County