Johnson v. State

Nathan Joseph Johnson v. State of Maryland, No. 109, September Term, 2018. Opinion by Nazarian, J. CRIMINAL LAW – INVOLUNTARY MANSLAUGHTER – GROSS NEGLIGENCE The evidence was not sufficient to support a finding of gross negligence, and thus a conviction for involuntary manslaughter, where the defendant who sold drugs to the victim was a peer and fellow drug user and where there was no evidence that the defendant knew or should have known the drugs to be unusually dangerous. Circuit Court for Queen Anne’s County Case No. 17-CR-17-290 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 109 September Term, 2018 ______________________________________ NATHAN JOSEPH JOHNSON v. STATE OF MARYLAND ______________________________________ Graeff, Nazarian, Zarnoch, Robert A. (Senior Judge, Specially Assigned), JJ. ______________________________________ Opinion by Nazarian, J. ______________________________________ Filed: January 31, 2020 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2020-09-09 10:20-04:00 Suzanne C. Johnson, Clerk Brandon Roe and Nathan Johnson were friends who shared a heroin addiction.

On November 3, 2016, Mr. Johnson bought heroin that, it turned out, also contained fentanyl. The two split the purchase. Mr. Roe took his portion of the drugs, overdosed, and passed away. Months after Mr. Roe died, Mr. Johnson was charged and convicted in the Circuit Court for Queen Anne’s County of involuntary manslaughter, reckless endangerment, possession with intent to distribute heroin and fentanyl, and possession of heroin and fentanyl.

He was sentenced to ten years of incarceration (all but seven suspended) for involuntary manslaughter and a consecutive twenty years (all but five suspended) for distribution. Citing the Court of Appeals’s recent decision in State v. Thomas, 464 Md. 133 (2019), Mr. Johnson argues on appeal that the evidence was insufficient to support a finding that he acted with gross negligence and, therefore, to support his conviction for involuntary manslaughter. He also disputes his possession with intent to distribute charges on sufficiency of the evidence grounds. We reverse his conviction for involuntary manslaughter and affirm the judgment in all other respects.

I. BACKGROUND A. The Events That Led To Mr. Roe’s Death On November 3, 2016, Brandon Roe was a hard-working young man who, on the surface, was in recovery for drug addiction. Mr. Roe also bought and used drugs without being discovered. He seemed to be doing well. He worked for his stepfather’s business.

He maintained a relationship with a successful young woman. And his mother, who watched him closely to make sure he stayed clean, thought he was on the right path. Unfortunately, in the early hours of November 4th, 2016, Mr. Roe’s mother found him in his room unresponsive, face-down on his bed. The medical examiner determined Mr. Roe’s cause of death to be “Acrylfentanyl and Heroin Intoxication.” Mr. Roe had spent the day working.

After going to his day job with his stepfather, he power-washed a deck with his mother, then went home around 5:00 p.m. Mr. Roe and Mr. Johnson started texting each other at around noon to discuss how they were going to get drugs:1 [MR. JOHNSON]: [11:58 a.m.] Yo u getting anything today [MR. ROE]: [12:01 p.m.] Yea later [12:29 p.m.] You don’t get off till 4? [MR.

JOHNSON]: [12:44 p.m.] Yeah [MR. ROE]: [12:46 p.m.] Ight we’ll just hit me up. I’m about to be off and I gottago finish that job and then I got a small job to do for kaseys mom today [MR. JOHNSON]: [12:57 p.m.] Oh I gotcha I was going to see if u want to go half on a half? [MR.

ROE]: [12:58 p.m.] Yea I might be able to I gotta make the money first cause I owe JJ40 [MR. JOHNSON]: [12:59 p.m.] Oh shit I gotcha [MR. ROE]: [12:59 p.m.] Yea but il have it all I gotta do is go do the jobs [3:23 p.m.] U comin over soon u get off [3:56 p.m.] Lat me know something yo [4:36 p.m.] Yo are u comin over or what lol [MR. JOHNSON]: [4:37 p.m.] I don’t think so why what’s up [MR.

ROE]: [4:38 p.m.] Cause I was gonna wait for u but of you ain’t comin then nevermind 1 We have reproduced the text messages verbatim. 2 [MR. JOHNSON]: [4:47 p.m.] About to pick up a half for 50 [4:47 p.m.] From a guy at work [MR. ROE]: [4:47 p.m.] Can u sell me some [MR. JOHNSON]: [4:48 p.m.] Yeah later [MR.

ROE]: [4:49 p.m.] Ok [MR. JOHNSON]: [4:50 p.m.] Okay cool [MR. ROE]: [4:51 PM] Let me know when [MR. JOHNSON]: [4:52 p.m.] Okay [4:52 p.m.] Allison and I’ll probably come over there to get dinner and I’ll do it then [MR.

ROE]: [4:52 p.m.] Ok that’s cool At around 5:30 p.m., Mr. Roe’s mother noticed that he wasn’t in the house. She texted him to ask where he was, and he responded that he was outside talking to his friend, Mr. Johnson. However, Mr. Roe was texting another individual saved in his phone as “Josh D” about meeting, apparently to acquire drugs: [MR. ROE]: [5:07 p.m.] How long u gonna be cause I gotta walk there so I don’t want u to have to wait [JOSH D]: [5:07 p.m.] Like 15-20 minutes gotta meet one person [at] [Royal Farms] in Queenstown then ill be to u [MR.

ROE]: [5:07 p.m.] Ok [JOSH D]: [5:28 p.m.] Leaving [Royal Farms] now [MR. ROE]: [5:29 p.m.] Ok I’m here [JOSH D]: [5:37 p.m.] Turning on Perry corner [MR. ROE]: [5:37 p.m.] Ok come all the way back u’ll see me [5:52 pm] That shit is all baknsoda yo that ain’t fuckin cool Mr. Roe came back home after this exchange. His mother checked his pupils, a common practice, and didn’t notice anything unusual.

The pair drove to Mr. Roe’s girlfriend’s house to replace some carpeting. At around 8:00 p.m., Mr. Roe received $50 3 for his work—the only cash he had on hand that day. Then Mr. Roe and his mom went back home and ate dinner. Throughout this period, Mr. Roe and Mr. Johnson continued to text to arrange a drug sale: [MR.

JOHNSON]: [6:19 p.m.] You never let me know what you want it so I can make it before I leave I’m not bringing it all [MR. ROE]: [6:22 p.m.] Make a 40 if I get it [MR. JOHNSON]: [6:24 p.m.] I don’t understand that make up 40 if you get it [7:07 p.m.] Just trying to find out if you wanted or not before I leave I’m not gonna bring it if you don’t want it [7:08 p.m.] But I’ll tell you what it’s some [7:10 p.m.] ? [7:10 p.m.] That’s one of the reasons why I’m coming over the bridge to [MR. ROE]: [7:17 p.m.] I want it but gotta get the money after the job forst [MR.

JOHNSON]: [7:22 p.m.] Yeah but you’re going to finish the job tonight right [7:22 p.m.] Because I’m bout to leave my house to head over there how long you think you’ll be [7:31 p.m.] Ok well I’m going to Annapolis to go get food. So when you’re ready just hit me up and I’ll wrap up what I’m doing then ride over there real quick [MR. ROE]: [7:43 p.m.] Cool [7:49 p.m.] I’m done and ready [7:53 p.m.] I want the 40 [8:04 p.m.] Let me know something soon yo [8:58 p.m.] So what’s goin on when yal leave [MR. JOHNSON]: [8:58 p.m.] Just got done paying for my 4 food now I have to leave and head that way unless I have to drop Allison and Chloe [off] either way I’ll be there within the next hour When Mr. Johnson was wrapping up at the restaurant, Mr. Roe asked how they were going to explain the impromptu visit to Mr. Johnson’s family: [MR.

ROE]: [9:00 p.m.] Okay that’s fine. What we SUPPOSE to be doin lol [MR. JOHNSON]: [9:03 p.m.] Nothing I got me Chloe and Allison with Man I’m running over there real quick [9:03 p.m.] I told her it’s money from the job u owe me I just can’t stay long [MR. ROE] [9:04 p.m.] I know that lol but I’m saying why she think u’r comin [9:05 p.m.] I gotcha bro il see ya when u get here just txt me when u get on the bridge [MR.

JOHNSON]: [9:10 p.m.] Okay [9:21 p.m.] Just got off the bay bridge [MR. ROE]: [9:22 p.m.] Ok il meet you at the end of my lane Mr. Roe’s mother heard him leave the house at around 9:30 p.m. She again texted Mr. Roe to ask where he was, and he responded he was with Mr. Johnson. Mr. Roe came back inside at around 9:45 p.m. and his mom thought he looked normal.

After a few hours watching television and winding down for the evening, she discovered Mr. Roe’s body at around 12:30 a.m. He only had two five-dollar bills left in his wallet. Mr. Johnson gave the police his own version of events from that day. According to Mr. Johnson, Mr. Roe texted first thing to ask if “he was good.” Mr. Johnson said that he had a gram of marijuana and a THC-infused brownie worth $40.

He also told police Mr. Roe owed him $40 from a side job power-washing a deck together. He told police that 5 he didn’t bring the brownie with him that night to sell to Mr. Roe. He said he wanted to drop off a fishing pole and pick up the $40 from the side job. Mr. Roe then decided that he wanted to use the $40 to buy heroin from “JJ Moore” later that night.

Mr. Johnson said he saw a text from JJ Moore on Mr. Roe’s phone that said Moore was “ready to roll.” Mr. Johnson, having given Mr. Roe the fishing pole and not received the $40, left the house. Mr. Johnson gave the police a written statement about how Mr. Roe was planning to meet JJ Moore to purchase “dope.” During argument, the State indicated that the police didn’t investigate “Josh D” or “JJ Moore” because their interactions with Mr. Roe didn’t fit the timeline. When the police inspected Mr. Roe’s cell phone, it didn’t have any text messages with JJ Moore saved. The police attempted to extract the actual messages between Mr. Roe and JJ Moore, but Mr. Roe’s cell phone was incompatible with the extraction device.

Mr. Roe’s cell phone records showed that he texted JJ Moore seven times between 1:47 p.m. and 4:47 p.m.2 2 Mr. Roe’s texts with JJ Moore on November 3, 2016 all occurred between 1:47 and 4:47 that afternoon: 1:47 p.m.: Mr. Roe text to JJ Moore 1:51 p.m.: JJ Moore text to Mr. Roe 1:52 p.m.: Mr. Roe text to JJ Moore 1:52 p.m.: JJ Moore text to Mr. Roe 1:53 p.m.: Mr. Roe text to JJ Moore 3:39 p.m.: Mr. Roe text to JJ Moore 3:40 p.m.: JJ Moore text to Mr. Roe 3:40 p.m.: Mr. Roe text to JJ Moore 3:40 p.m.: JJ Moore text to Mr. Roe 6 There was no evidence that Mr. Roe texted JJ Moore on the evening that Mr. Roe died. Mr. Johnson was arrested on June 2, 2017. Mr. Johnson was charged with (1) involuntary manslaughter, (2) reckless endangerment, (3) possession with intent to distribute heroin, (4) possession with intent to distribute acrylfentanyl, (5) possession of heroin, and (6) possession of acrylfentanyl. B. Mr. Johnson’s Trial Trooper First Class Michael Buckius testified at the bench trial as the investigating officer and the State’s expert witness on drug-related code words and jargon.

Trooper Buckius indicated that “a half” refers to a half gram of drugs. Trooper Buckius believed that the text messages between Mr. Roe and Mr. Johnson described the sale of cocaine or heroin. He also testified that in his experience, the use of the fire emoji when describing drugs means that the drugs are “really good.” The trial court convicted Mr. Johnson of all charges. He appeals his convictions and sentences.

We supply additional facts as needed below.

II

DISCUSSION Mr. Johnson raises four questions on appeal that we rephrase. 3 First, did the trial 3:41 p.m.: Mr. Roe text to JJ Moore 4:46 p.m.: Mr. Roe text to JJ Moore 4:47 p.m.: JJ Moore text to Mr. Roe 3 Mr. Johnson raised four Questions Presented: 1. Is the distribution of heroin and fentanyl to an individual who subsequently dies from a fatal overdose sufficient to support an involuntary manslaughter conviction under a theory of gross negligence? 7 court err when it found Mr. Johnson guilty of involuntary manslaughter? Second, did the court err when it found Mr. Johnson guilty of possession with intent to distribute heroin and acrylfentanyl? Third, did the trial court abuse its discretion when it admitted Mr. Johnson’s text messages with Mr. Roe when the State couldn’t obtain Mr. Roe’s texts with JJ Moore?

Fourth, did the trial court err when it sentenced Mr. Johnson for distribution and involuntary manslaughter separately? Mr. Johnson elected to have a bench trial. When convictions result from a bench trial, we “review the case on both the law and the evidence.” Md. Rule 8-131(c). We will not “set aside the judgment of the trial court on the evidence unless clearly erroneous, and 2.

Is circumstantial evidence sufficient to support a conviction for distribution of a controlled substance where the buyer communicated with an had the opportunity to purchase from other potential sellers? 3. Did the lower court err in allowing the introduction of text messages from a cellphone when some of the text messages could not be considered because they had been deleted? 4. Did the lower court err in imposing separate sentences for distribution and involuntary manslaughter? The State rephrased those Questions Presented as: 1.

Was the evidence sufficient to support Johnson’s conviction for distribution of a controlled dangerous substance? 2. Was the evidence sufficient to establish that Johnson acted with reckless disregard for human life when he distributed heroin that he described as “fire” to a known addict, and which was ultimately determined to be heroin laced with acrylfentanyl? 3. Did the circuit court act within its discretion in admitting a text message conversation been Johnson and the victim? 4. Did the circuit court properly sentence Johnson? 8 will give due regard to the opportunity of the trial court to judge the credibility of witnesses.” Id.

This provision of the Maryland Rules does not apply to evidentiary rulings, Starke v. Starke, 134 Md. App. 663, 668 (2000), nor to legal conclusions, State v. Neger, 427 Md. 582, 595 (2012) (quoting Clancy v. King, 405 Md. 541, 554 (2008)). “For legal conclusions, we conduct a non-deferential review.” Id. A. The Evidence Was Insufficient To Support A Finding That Mr. Johnson Acted With Gross Negligence. First, Mr. Johnson argues that no rational factfinder could have found beyond a reasonable doubt that he acted with gross negligence, the mens rea element for the crime of involuntary manslaughter. He contends that he wasn’t a routine drug dealer, that Mr. Roe did not have a “special vulnerability” to the sale, and that he only sold Mr. Roe 0.4 grams of heroin.

The State responds that the evidence was sufficient because Mr. Johnson knew generally that heroin is inherently dangerous, because he described the heroin using a fire emoji, and because he sold Mr. Roe heroin without knowing either the heroin’s composition or what else Mr. Roe might have ingested that day. We agree with Mr. Johnson. When reviewing a conviction for sufficiency of the evidence, we ask whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Spell v. State, 239 Md. App. 495, 510 (2018) (quoting Fuentes v. State, 454 Md. 296 , 307–08 (2017)) (emphasis added). “In examining the record, we view the State’s evidence, including all reasonable inferences to be drawn therefrom, in the light most favorable to the State.” Id. It is not our role to retry the case.

Id. “Because the fact- 9 finder possesses the unique opportunity to view the evidence and to observe first-hand the demeanor and to assess the credibility of witnesses during their live testimony, we do not re-weigh the credibility of witnesses or attempt to resolve any conflicts in the evidence.” Smith v. State, 415 Md. 174, 185 (2010). “[T]he finder of fact has the ‘ability to choose among differing inferences that might possibly be made from a factual situation . . . .’” Id. at 183 (quoting State v. Smith, 374 Md. 527, 534 (2003)). “Involuntary manslaughter is the unintentional killing of a human being, irrespective of malice.” State v. Thomas, 464 Md. 133, 152 (2019). “[A] conviction of manslaughter will not lie on a showing of simple negligence or misadventure or carelessness but must rather be predicated upon that degree of aggravated negligence which is termed ‘gross’ negligence.” State v. Albrecht, 336 Md. 475, 499 (1994). The required mens rea is determined by “whether the accused’s conduct, ‘under the circumstances, amounted to a disregard of the consequences which might ensue and indifference to the rights of others . . . .’” Id. (quoting Duren v. State, 203 Md. 584, 590 (1954)). Accordingly, “the State must demonstrate wanton and reckless disregard for human life” and the risk must fall “somewhere between the unreasonable risk ordinary negligence and the very high degree of risk necessary for depraved-heart murder.” Thomas, 464 Md. at 160–61.

In Thomas, the Court of Appeals addressed for the first time the standard for gross negligence involuntary manslaughter in the context of a heroin transaction resulting in a fatal overdose. Thomas held that to support a conviction for a gross negligence involuntary manslaughter from the sale of heroin, (1) the defendant must have known, or should have known under the reasonably prudent person standard, that the underlying act of selling 10 heroin carried a severe risk of harm, and (2) the sale of heroin must be the actual and legal cause of the victim’s death. Id. at 171, 173. The first half of the analysis itself has two components: the activity must be inherently dangerous and environmental risk factors must elevate that risk to rise to gross negligence.

This is a relatively new frontier for gross negligence law, and the Court of Appeals walked a delicate line in Thomas. On the one hand, the Court emphasized that “a per se rule providing that all heroin distribution resulting in death constitutes gross negligence involuntary manslaughter is unwise and not in keeping with our precedent.” Id. (emphasis added). And although heroin distribution is inherently dangerous, the Court noted that “distribution, alone, does not always amount to gross negligence.” Id. at 169.

On the other hand, the Court quoted a 1990 Massachusetts decision stating that “the consumption of heroin in unknown strength is dangerous to human life, and the administering of such a drug is inherently dangerous . . . .” Id. (quoting Commonwealth v. Catalina, 407 Mass. 779, 791 (1990)).4 How, then, does the law distinguish a run-of-the-mill, or perhaps not- 4 In Catalina, Massachusetts’s highest court held the evidence was sufficient to support a defendant’s indictment for involuntary manslaughter when the defendant knew the heroin he sold was particularly potent. 407 Mass. at 790 . The Massachusetts court then described, as Thomas quoted above, the inherent risk of selling heroin. Id. at 790–91.

But the issue in Catalina was a question of sufficiency of the evidence “to support the probable cause needed for an indictment, not whether the evidence was sufficient to support a conviction of involuntary manslaughter.” Commonwealth v. Carrillo, 483 Mass. 269 , 278 (2019). Since then, the Massachusetts court noted that Catalina has been misconstrued as standing for the proposition that “the distribution of heroin alone is sufficient to support a guilty finding of involuntary manslaughter where the heroin causes the user’s death.” Carrillo, 483 Mass. at 281. The court recently rejected that proposition because it would create a per se rule, 483 Mass. at 281–82, and cited Thomas as consistent with that holding, id. at