In re: David P.

Wright, J. This appeal arises out of a judgment of the Circuit Court for Wicomico County, sitting as a juvenile court, finding that David P. (“David”) was involved in attempted first-degree arson and reckless endangerment. At a subsequent disposition hearing, David was placed in the custody of the Maryland Department of Juvenile Services (“department”) and sent to an out-of-state facility for detention. David now appeals, questioning the sufficiency of the evidence as to both findings of involvement.

QUESTIONS PRESENTED We have reworded David’s questions for clarity, as follows: 1 I. Was the evidence sufficient to support the juvenile court’s finding of David’s involvement in attempted arson?

II

Was the evidence sufficient to support the juvenile court’s finding of David’s involvement in reckless endangerment?

III

Did the juvenile court err in denying the motion to suppress an out of court identification? For the reasons stated below, we answer the first two questions in the negative. Accordingly, we vacate David’s convictions, and we do not reach the third question. FACTS Nuzhat Nada provided testimony as to the following facts.

On March 21, 2016, Nada was at her residence at 205 Walnut Street, Salisbury, in Wicomico County. At 7:00 p.m. on that evening, Nada heard a noise at her door and walked over to open it. No one was standing at the doorway, but she observed a person running away. Nada later heard the noise a second time, and again opened the door to find no one there.

She then stood by the door, waiting to hear the noise again. When the noise started for a third time, she immediately opened her door and saw David running from her doorstep, looking backwards over his shoulder. Nada then followed David to his house, at 121 Chestnut Street, with the intention of informing his mother about what had happened. However, Nada returned home without speaking to anyone at David’s house.

A few minutes after returning home, Nada heard a noise at her door again. She opened the door to again see someone running away, and she saw two matches burning on the bricks in front of her door. Nada explained that the matches were about “one and a half feet away from the door,” and that she has “a lot of wood and cones” on her other porch. Nada then called the police.

She testified that while waiting for the police, she stood by the matches and let them burn because she “didn’t want to touch them.” She testified that she did not extinguish the matches, but watched to make sure they did not fly off, fearing that the matches could ignite dry leaves at the side of the house “because of the wind,” Nada testified that the matches left scorch marks “on the bricks” in front of the home and that she had photos of the marks. No such photos were offered as evidence. The police arrived and Nada conveyed her account of what had happened. An officer took Nada to 121 Chestnut for a show-up identification.

Beforehand, neighborhood residents spoke with Nada about their own experiences with David. Officer Brian Weglarz testified next for the State. He confirmed responding to a call at 205 Walnut Street and meeting with Nada at her residence. Weglarz further testified that he observed “two extinguished matches” in front of the home on a concrete area attached to the front door.

Weglarz described the matches as “about two inches in length, the cut that you would find out of a match book.” On cross examination, Weglarz answered affirmatively when asked if Nada had extinguished the matches by stepping on them, and he also answered affirmatively when asked if Nada “had to actually extinguish” the matches. Weglarz further testified that he did not see scorch or burn marks on the porch. Finally, Officer Carroll testified for the State and provided testimony regarding the circumstances of the show-up identification. 2 The above was the extent of the evidence actually presented at trial. STANDARD OF REVIEW The Court of Appeals has remarked: “In a juvenile delinquency matter, an appellate court will ‘review the case on both the law and the evidence.’ We review any conclusions of law de novo, but apply the clearly erroneous standard to findings of fact.” In re Elrich S., 416 Md. 15, 30 , 5 A.3d 27 (2010) (internal citation omitted).

This Court has noted that “[a] delinquent act is an act which would be a crime if committed by an adult.” In re Lavar D., 189 Md.App. 526, 585 , 985 A.2d 102 (2009) (citing Md. Code (1973, 2013 Repl. Vol.), Courts & Judicial Proceedings Article § 3-8A-01(l)). Accordingly, as to the sufficiency of the evidence, we apply to juvenile delinquency proceedings the same standard of review as in criminal trials: “Appellate review of the [trial] court’s judgment on the evidence is limited to determining whether there is a sufficient evidentiary basis for the court’s underlying factual findings. [T]he appropriate inquiry is not whether the reviewing court believes that the evidence establishes guilt beyond a reasonable doubt, but rather, whether after reviewing 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.” Elrich S., 416 Md. at 30 , 5 A.3d 27 (quoting In re Anthony W., 388 Md. 251, 261 , 879 A.2d 717 (2005)); see also In re Kevin T., 222 Md.App. 671, 676-77 , 114 A.3d 297 (2015). The State notes that circumstantial evidence suffices to affirm a conviction as long as “the circumstances support rational inferences from which the trier of fact could be convinced beyond a reasonable doubt of the guilt of the accused.” Painter v. State, 167 Md.App. 1, 11 , 848 A.2d 692 (2004) (citation omitted). “Circumstantial evidence is as persuasive as direct evidence.

With each, triers of fact must use their experiences with people and weigh probabilities.” In re Lavar D., 189 Md.App. at 586 , 985 A.2d 102 (quoting Mangum v. State, 342 Md. 392, 400 , 676 A.2d 80 (1996)). The juvenile court, as the finder of fact, “possesses the ability to choose among differing inferences that might possibly be made from a factual situation and [the appellate court] must give deference to all reasonable inferences [that] the fact-finder draws.” In re Landon G., 214 Md.App. 483, 491 , 78 A.3d 431 (2013) (citations omitted). “However, [w]hen an action has been 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." In re Antoine H., 319 Md. 101, 108 , 570 A.2d 1239 (1990) (quoting Md. Rule 8-131(c)). DISCUSSION I. Sufficiency of the Evidence—Attempted Arson David avers that the State failed to meet its burden for the charge of attempted arson, because it failed to prove the requisite mens rea for attempted first-degree arson—a specific intent crime.

Holbrook v. State, 364 Md. 354, 371 , 772 A.2d 1240 (2001). The crime of first-degree arson is set out by statute: (a) A person may not willfully and maliciously set fire to or burn: (1) a dwelling; or (2) a structure in or on which an individual who is not a participant is present. Md. Code (2002, 2012 Repl. Vol.), Criminal Law Article (“CL”) § 6-102(a).

The statutory offense expands the universe of the buildings covered, but retains the common-law definition of arson which has four elements: (1) that the building burned was a dwelling house or outbuilding within the curtilage; (2) that the building burned was occupied by another; (3) that the building was actually burned, as mere scorching would not suffice; and, (4) that the accused’s mens rea was willful and malicious. Holbrook, 364 Md. at 367 , 772 A.2d 1240 (citation and footnote omitted). No arson takes place where “the fire is not communicated to any part of the structure itself.” Hines v. State, 34 Md.App. 612, 618 , 368 A.2d 509 (1977) (citation omitted). Both parties agree that arson is a specific intent crime. “A specific intent is not simply the intent to do the immediate act but embraces the requirement that the mind be conscious of a more remote purpose or design which shall eventuate from the doing of the immediate act.” Smith v. State, 41 Md.App. 277, 305 , 398 A.2d 426 (1979).

Applying this understanding to arson, the mens rea requires not only having an intent to do the immediate act of setting a fire, but also embracing the purpose of causing harm to person or property. Further, “[m]ere knowledge that a result is substantially certain to follow from one’s actions is not the same as the specific intent[.]” Spencer v. State, 450 Md. 530, 567 , 149 A.3d 610 (2016) (quoting Thornton v. State, 397 Md. 704, 738 , 919 A.2d 678 (2007) (internal citation omitted)). Although the State agrees that the “willful and malicious” standard imposes a specific intent mens rea requirement, the State, first relying on Richmond v. State, 326 Md. 257 , 604 A.2d 483 (1992), avers that “setting a fire with reckless and wanton disregard for the consequences satisfies the willful and malicious requirement” of the statute. Id. at 268 , 604 A.2d 483 (citation omitted). “While this reasoning may have been true in 1992 when Richmond was filed, it is not so today.” Holbrook, 364 Md. at 371 , 772 A.2d 1240 .

This is the case because the General Assembly repealed the arson statute in 1993, one year after Richmond, and enacted new definitional provisions defining “willfully” and “maliciously.” Id. “Maliciously” is defined as “acting with intent to harm a person or property,” CL § 6-101(c), and “willfully,” is defined as “acting intentionally, knowingly, and purposely.” Id. § 6-101(e). Therefore, in order to be convicted of arson, a person must have acted “with intent to harm a person or property,” and “intentionally, knowingly, and purposefully.” Holbrook, 364 Md. at 371 , 772 A.2d 1240 . The State interprets the statutory change and Holbrook to require specific intent to do harm, but not more than reckless or wanton disregard for the consequences. The State posits that a person may be convicted where specific intent is found as to the conduct—ie., the lighting of a match, but mere recklessness is found as to the consequences that follow—¿e., the burning of the building.

We find no merit in this position, as it ignores the concept of a specific intent crime as one in which the party has not only the “intent to do the immediate act” but where his mind is also “conscious of a more remote purpose or design which shall eventuate from the doing of the immediate act.” Smith, 41 Md.App. at 305 , 398 A.2d 426 . We also decline the State’s invitation to examine the legislative history of the statute to determine the legislative intent to support the State’s position. Rather, we continue to follow the standard stated in Hol-brook—in order to be convicted of arson, a person must have acted “with intent to harm a person or property,” and acted “intentionally, knowingly, and purposefully.” 364 Md. at 371 , 772 A.2d 1240 . Although David may have acted without regard for the consequences of his actions, following the General Assembly’s abrogation of the common law, the State’s assertion—that specific intent to light a fire, but with only reckless and wanton disregard for the consequences, will satisfy the mens rea required for an arson conviction—is incorrect.

Here, David was charged with attempted arson rather than arson itself. A conviction for an attempt crime does not require completion of the crime, but rather “[a] person is guilty of a criminal attempt when, with intent to commit a crime, the person engages in conduct which constitutes a substantial step toward the commission of that crime whether or not his intention is accomplished.” Grill v. State, 337 Md. 91, 94 , 651 A.2d 856 (1995) (citation omitted). An attempt crime has a mens rea element of intending to commit the underlying crime. 3 Dabney v. State, 159 Md.App. 225, 234-35 , 858 A.2d 1084 (2004). “[A] defendant must be charged with an attempt to commit a specifically designated crime, and it is to that crime one must look in identifying the kind of intent required.” Young v. State, 303 Md. 298 , 306 n.5, 493 A.2d 352 (1985) (citation omitted). “It is a mistake to speak of attempts generally as having a single monolithic intent element. Some attempts, to be sure, require a specific intent.

Other attempts, however, require only a general intent. An attempt to commit a specific intent crime requires the same ultimate specific intent as would the consummated crime." Wieland v. State, 101 Md.App. 1, 40 , 643 A.2d 446 (1994) (emphasis added). The “requisite intent need not be proved by direct evidence.” Young, 303 Md. at 306 , 493 A.2d 352 (citation omitted). “It may be inferred as a matter of fact from the actor’s conduct and the attendant circumstances.” Id. (citations omitted).

As discussed supra, arson is a specific intent crime, and because an attempt to commit a specific intent crime requires the same ultimate specific intent as the consummated crime, the exact question before us is whether the evidence sufficed to prove that David had the specific intent to willfully and maliciously set fire to Nada’s home. “Since intent is subjective and, without the cooperation of the accused, cannot be directly and objectively proven, its presence must be shown by established facts which permit a proper inference of its existence.” Spencer, 450 Md. at 568 , 149 A.3d 610 (citation and quotations omitted). Accordingly, our evaluation focuses on the circumstances surrounding David’s actions, and the action itself, although we are looking to the actions to understand the actor’s intent—not to evaluate the actions for sufficiency of the actus reus. David states that, “[t]wo matchbook matches dropped on the flame-retardant landing in front of a home cannot constitute an overt act evincing specific intent to commit arson.” The facts again are as follows. After thrice causing a ruckus on her porch that brought Nada out of her home, David lit two matches and dropped them on the bricks of Nada’s front stoop, about one and a half feet away from her door.

He then ran away. A wicker doormat was nearby, and there were quantities of dry leaves around the side of the house. Nada also had “a lot of wood and cones” on her other porch. Although ample case law illustrates conduct that satisfies the elements and constitutes an attempted arson, very little case law illustrates conduct that does not rise to required level.