Johnson v. State

Everette William Johnson v. State of Maryland, No. 11, September Term, 2021. Opinion by Hotten, J. CRIMINAL LAW – INDICTMENTS AND CHARGING INSTRUMENTS – DUPLICITOUS CHARGES The constitutional guarantee to a unanimous jury verdict in a criminal case may be violated where a prosecutor introduces evidence of multiple distinct criminal incidents to prove a crime charged as a single count. In such circumstances, the prosecutor should be required to elect to pursue one of the incidents underlying the charge, or the jury should be provided with a special instruction that it must unanimously agree as to which incident underlies any conviction. CRIMINAL LAW – INDICTMENTS AND CHARGING INSTRUMENTS – DUPLICITOUS CHARGES – SINGLE INCIDENT OR TRANSACTION In determining whether a series of criminal acts may underlie a single charge or multiple charges, courts should consider whether a juror could have reasonably perceived separate incidents, and therefore, based their convictions on different underlying material facts.

Various factors may be helpful in this inquiry, including: acts occurring at different times or places and separated by intervening events; if the defendant reached a fork in the road between the acts and decided to invade another interest; if the first action concluded and the next act was motivated by a new impulse; if the jury must resolve different factual disputes concerning each action; and if the State presented the acts as separate to the jury. No individual factor is dispositive, as the central inquiry is whether a juror could have reasonably perceived the incidents as separate crimes based on the evidence presented and arguments made at trial. Circuit Court for Baltimore County Case No. 03-K-18-003634 Argued: October 4, 2021 IN THE COURT OF APPEALS OF MARYLAND No. 11 September Term, 2021 __________________________________ EVERETTE WILLIAM JOHNSON v. STATE OF MARYLAND __________________________________ Getty, C.J., *McDonald, Watts, Hotten, Booth, Biran, Gould, JJ. __________________________________ Opinion by Hotten, J. Getty, C.J., McDonald and Gould, JJ., dissent. __________________________________ Filed: March 14, 2022 *McDonald, J., now retired, participated in the hearing and conference of this case Pursuant to Maryland Uniform Electronic Legal while an active member of this Court; after Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. being recalled pursuant to Maryland 2022-06-15 14:52-04:00 Constitution, Article IV, Section 3A, he also participated in the decision and adoption of this opinion. Suzanne C. Johnson, Clerk Everette William Johnson (“Petitioner”) was tried in the Circuit Court for Baltimore County for first-degree burglary, first-degree assault, second-degree assault, use of a firearm in the commission of a crime of violence, and illegal possession of a firearm after conviction of a disqualifying crime.

He was acquitted of first-degree assault but convicted of the remaining charges. Although evidence was presented to the jury of two incidents, occurring within minutes of each other, that could have satisfied two counts each of first or second-degree assault and use of a firearm in the commission of a crime of violence, Petitioner was charged with a single count of each crime. The circuit court declined defense counsel’s request after closing arguments that the jury be instructed that it must unanimously agree as to Petitioner’s guilt for the same underlying incident to support a verdict regarding those counts. Petitioner appealed to the Court of Special Appeals, which affirmed the circuit court in a 2-1 decision.

The majority found that no special unanimity instruction or election between incidents was required, determining there was only a single ongoing incident at issue, as the two allegedly separate incidents occurred within a short period of time and space, and all in furtherance of Petitioner’s burglary. The dissent disagreed, identifying the commission of two separate assaults involving two different weapons, and thus, concluded that Petitioner’s conviction did not comply with the constitutional guarantee of a unanimous jury verdict for criminal defendants. We granted certiorari to address the following question: Whether a defendant’s right to a unanimous jury verdict is violated when the State presents evidence of multiple incidents at trial to prove a single charged count, in absence of an election between the incidents or a special jury instruction? We answer in the affirmative and reverse the decision of the Court of Special Appeals.

FACTUAL AND PROCEDURAL BACKGROUND The Underlying Incident On August 1, 2018, Petitioner entered an unoccupied and unlocked house in Catonsville, Maryland. Sometime later, the homeowner, Jeanne Robin, returned with her minor son and discovered Petitioner in her attic. Ms. Robin testified that when she discovered Petitioner, he was holding her husband’s antique rifle, which she believed to be inoperable and not loaded. She attempted to wrestle the rifle from Petitioner’s hands, but Petitioner told her “this thing is loaded” and cycled its lever, which was the rifle’s mechanism for allowing ammunition to be loaded.

Ms. Robin then testified that she became concerned that the rifle was actually operable, since she had previously assumed that its lever was jammed. She yelled for her son, who was downstairs, to go outside, and she ran down the attic stairs. While Ms. Robin was downstairs, she called 911 to report the home invader, retrieved her handgun from a lockbox located in her bedroom closet, loaded the gun with bullets located in a different location from the lockbox, and then returned to the bottom of the stairs. Armed with her handgun, Ms. Robin shouted up to Petitioner from the bottom of the attic stairs that she had called the police and would shoot him if he tried to come down the stairs.

She testified that she was surprised to find Petitioner in the same place she had left him, stating: 2 [I]n this whole thing, he has not fled. I have time to go down the stairs. Get into my bedroom. Into my closet.

Open the lockbox. Get my gun. Get the speed loader. Load the gun.

Close the gun. Get back to the door, and the man is still at the top of the stairs. Ms. Robin closed and leaned against the attic stair door, attempting to detain Petitioner until the police arrived.1 Petitioner, however, came down the stairs, managed to push through the door, and struggled with Ms. Robin over control of her handgun. During that struggle, the handgun discharged through Ms. Robin’s right hand.

Petitioner ultimately escaped from the home with Ms. Robin’s handgun.2 He was apprehended by police shortly thereafter. Legal Proceedings A. Circuit Court Proceeding Petitioner was tried in the Circuit Court for Baltimore County for one count of first- degree burglary, one count of first-degree assault, one count of second-degree assault, one count of use of a firearm in the commission of a crime of violence, and one count of illegal possession of a regulated firearm after being convicted of a disqualifying crime. During closing arguments, the State made the following statements, among others, pertaining to the assault and use of a firearm in the commission of a crime of violence charges: He committed a first -- committed a first[-]degree burglary without question. He used a crime of violence during the first -- handgun -- firearm during the 1 Ms. Robin testified that she was motivated to detain Petitioner because she feared that if he left the house, he would encounter her son who was outside on the porch. 2 Petitioner had previously dropped a backpack filled with items from the Robins’ home on the attic stairs, as it had gotten stuck while he pushed through the attic door. 3 commission of that first[-]degree burglary, initially that rifle he grabbed and also the handgun.

He also committed a first[-]degree assault during the burglary, and that was initially pulling the rifle on her, and then also the struggle over the gun and shooting her in the hand. And again, in its closing rebuttal, the State argued: It could not be anymore clear that the defendant is guilty as charged. Guilty of the first[-]degree burglary of their home. Guilty of the first[-]degree assault of Ms. Robin, not only up in the attic when he arms himself with their rifle, but when we move downstairs to the struggle and him firing that handgun.

Firing that bullet through her hand. Guilty of using that handgun in the commission of those crimes. Guilty of using that rifle upstairs to try to complete the burglary. Guilty of using that handgun during the struggle.

And then guilty of being a person who has been convicted of a disqualifying crime and being in possession of that handgun. The defendant is guilty on all counts. Thank you. Thereafter, defense counsel requested that the court provide a supplemental instruction to the jury that “what they’re finding [Petitioner] guilty or not guilty of is the allegation of firing the gun through Ms. Robin’s hand, and that the firearm we’re talking about is the revolver.” The State replied that the charges pertained to one continuing criminal event and a breakdown of each individual action was unnecessary.

The court ultimately denied defense counsel’s request, reasoning that the jury had “listened to the elements of the crime . . . [and] listened to the instructions that include that opening 4 statement and closing argument are not evidence in the case.”3 The court noted, but overruled, defense counsel’s objection to the court’s denial of its requested supplemental instruction. The jury acquitted Petitioner of first-degree assault but found him guilty of all other charges levied against him, including second-degree assault and use of a firearm in the commission of a crime of violence.4 B. Opinion of the Court of Special Appeals Petitioner filed a timely appeal to the Court of Special Appeals, asking whether the circuit court “abused its discretion in failing to provide a supplemental instruction after the State argued in closing that the jury could rely on either of two distinct incidents to find [him] guilty of crimes that were charged as single counts.”5 Johnson, 2021 WL 408845 , at ¹. The Court of Special Appeals affirmed the circuit court in a 2-1 unreported opinion. Id. at ³.

Citing to Cooksey v. State, 359 Md. 1 , 752 A.2d 606 (2000) and Mohler v. State, 3 The jury was given the following general unanimity instruction: “[y]our verdict must represent the considered judgment of each juror and must be unanimous. In other words, all 12 of you must agree.” 4 As recognized by the Court of Special Appeals, the issues raised in Petitioner’s appeal and subsequent petition for writ of certiorari to this Court only pertain to his second- degree assault and use of a firearm in the commission of a crime of violence convictions. Johnson v. State, No. 1329, Sept. Term, 2019, 2021 WL 408845 , at ¹ (Md. Ct. Spec. App. Feb. 5, 2021). 5 Unrelated to his appeal to this Court, Petitioner also asked the Court of Special Appeals, “[w]hether the trial court abused its discretion in refusing to ask potential jurors during voir dire whether they had strong feelings about firearm laws in this State or country.” Id. at ¹.

The Court held that it did not. Id. at ⁴. 5 120 Md. 325 , 87 A. 671 (1913), the majority reasoned that all of Petitioner’s conduct “was committed as part of a single incident[]” that was “in furtherance of the burglary.” Id. at ³. The majority specifically focused on the fact that all of the alleged criminal actions occurred within a short span of time and space. Id. at ³.

Judge Friedman dissented, disagreeing that Petitioner’s actions were all part of a single incident. Id. at ⁴ (Friedman, J., dissenting). His opinion stated: As I understand the record, there were allegations of two separate assaults— one at the top of the stairs, one at the bottom of the stairs—in two different modalities, and even involving two separate weapons. If the State had charged both assaults, Johnson might well have been convicted of both.

As it is, however, the State only charged one but specifically told the jury it could convict on evidence of either. As a result, in my view, we cannot know of which assault Johnson was convicted. Although it might not seem likely, it is possible that the jury was divided on whether to convict of the assault at the top of the stair[s] and divided on whether to convict of the assault at the bottom of the stairs, but all agreed to convict him of either one assault or the other. Because we don’t know, I don’t think this conviction complied with our constitutional requirements.

See Cooksey v. State, 359 Md. 1 , 8–9, 752 A.2d 606 , 609–610 (2000). I respectfully dissent. Id. (Friedman, J., dissenting) (footnote omitted).

Petitioner filed a petition for certiorari to this Court, which we granted on May 11, 2021. Johnson v. State, 474 Md. 633 , 255 A.3d 170 (2021). DISCUSSION Standard of Review This Court has held that “[t]he decision of whether to give supplemental instructions is within the sound discretion of the trial judge and will not be disturbed on appeal absent a clear abuse of discretion.” Sidbury v. State, 414 Md. 180, 186 , 994 A.2d 948, 951 (2010); 6 see also Lovell v. State, 347 Md. 623, 657 , 702 A.2d 261, 278 (1997) (“Whether to give a jury supplemental instructions in a criminal cause is within the discretion of the trial judge.”). The discretion afforded to a trial court, “is not unlimited; when the issue is whether a constitutional right has been infringed, we make our own independent constitutional appraisal.” Crosby v. State, 366 Md. 518, 526 , 784 A.2d 1102, 1106 (2001).

Contentions of the Parties Petitioner argues that the circuit court erred in failing to give the jury a special unanimity instruction or require the State to elect a single incident as the basis for criminal liability where it presented evidence of two distinct incidents, either of which could have supported a conviction for second-degree assault and use of a firearm in the commission of a crime of violence. Petitioner contends that the incident with the rifle at the top of the attic stairs was distinct from the incident at the bottom of the stairs with the handgun, first, because the State told the jury in closing arguments that the two events were distinct, second, because the two incidents involved different legal theories and factual issues, and finally, because the events were not so close in space and time as to constitute a single incident. Thus, Petitioner argues that the State should have been required to elect between the two incidents, or, the jury should have been instructed that it must be unanimous as to which underlying incident supported its conviction. The State counters that the Court of Special Appeals correctly determined that Petitioner’s encounters with Ms. Robin were part of a single continuous incident, and therefore, that a special unanimity instruction or election between incidents was not 7 required.

It reasons that the events occurred within a short period of time and in a confined space, and denies that the prosecutor portrayed the incidents as separate a trial. Multiple Charges and the Right to a Unanimous Jury Verdict Article 21 of the Maryland Declaration of Rights and the Sixth Amendment of the United States Constitution guarantee criminal defendants the right to a unanimous jury verdict. MD. CONST., Decl. of Rts. art. 21 (“That in all criminal prosecutions, every man hath a right to . . . a speedy trial by an impartial jury, without whose unanimous consent he ought not to be found guilty.”); U.S. CONST. amend.

VI; see also Ramos v. Louisiana, 140 S. Ct. 1390, 1391 (2020) (holding that the “Sixth Amendment right to a jury trial—as incorporated against the States by way of the Fourteenth Amendment—requires a unanimous verdict to convict a defendant of a serious offense[]”). “Unanimity is indispensable to the sufficiency of the verdict.” Jones v. State, 384 Md. 669, 683 , 866 A.2d 151, 159 (2005) (emphasis omitted) (quoting Ford v. State, 12 Md. 514, 549 (1859)). The constitutional right to a unanimous jury verdict is threatened when a charge levied against a criminal defendant is duplicitous. See Cooksey, 359 Md. at 9–10, 752 A.2d at 610 . This Court has long defined duplicity as “the joinder of two or more distinct and separate offenses in the same count.” Id. at 7 , 752 A.2d at 609 (quoting State v. Warren, 77 Md. 121, 122 , 26 A. 500, 500 (1893)).

Duplicitous charges create a constitutional unanimity concern because a court cannot be certain “that a verdict rendered on a duplicitous count truly represents the unanimous agreement of the jury as to each offense charged in the count[,]” or whether some jurors found guilt on one offense but not the other, 8 and vice versa. Id. at 9–10, 752 A.2d at 610 . The prohibition against duplicitous charges has also been codified as a rule of pleading in Maryland Rule 4-203(a).6 This Court’s prohibition on duplicitous charges has generally addressed charges that were duplicitous on their face. See, e.g., Cooksey, 359 Md. at 4–5, 752 A.2d at 607 (holding an indictment was duplicitious that charged a criminal defendant with committing a sexual offense by engaging in a “sexual act” in a “continuing course of conduct” over the time span of a year, in a single count); Kirsner v. State, 183 Md. 1, 6 , 36 A.2d 538, 540 (1944) (holding an indictment duplicitous that charged, in a single count, various violations of the Baltimore City building code).

The same constitutional unanimity concerns arise where the State presents evidence of multiple distinct incidents to prove a crime charged as a single count, namely, that the jury will not unanimously agree as to which criminal incident the defendant committed.7 See Cooksey, 359 Md. at 9 , 752 A.2d at 610 (“[J]ury unanimity 6 Maryland Rule 4-203(a) provides that two or more offenses are permitted to “be charged in separate counts of the same charging document if the offenses charged are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.” (Emphasis added). In Cooksey, we described this Rule as an “indirect[]” codification of the prohibition against duplicity in the criminal context, reasoning that “[b]y limiting what may be charged even in separate counts of a single charging document, the Rule rather clearly precludes the charging of separate offenses in a single count.” 359 Md. at 8 , 752 A.2d at 609 . 7 This issue is distinguishable from the question presented in Watts v. State, where the court found that a jury was not required to unanimously agree whether the modality through which a defendant committed second-degree assault in a single action was battery or intent to frighten. 457 Md. 419, 440 , 179 A.3d 929, 941 (2018). In contrast, the present issue concerns factually separate incidents and the requirement that jurors must be unanimous as to which factual incident underlies a guilty verdict. 9 concerns arise because a court cannot always be certain that a verdict rendered on a duplicitous count truly represents the unanimous agreement of the jury as to each offense charged in the count.”). In such circumstances, the majority of our sister states have determined that it is proper to require the prosecutor to elect between the various incidents or to give a special jury instruction, informing the jurors that they must agree that the defendant is guilty based on the same underlying criminal incident.8 In Cooksey, this Court examined at length the rule against duplicitous charges and under what circumstances separate criminal acts may permissibly be combined to create a single punishable offense.9 359 Md. at 7–11, 752 A.2d at 609–11.

This Court found that 8 See, e.g., Ramsey v. State, 355 P.3d 601, 602 (Alaska Ct. App. 2015) (“When the State presents evidence that a defendant committed multiple different acts that could each support a criminal conviction, the court is required to instruct the jury that [it] must be factually unanimous as to which act the defendant committed.”) (footnote omitted); Williams v. United States, 981 A.2d 1224, 1228 (D.C. 2009) (“[W]hen a single count encompasses two (or more) factually separate criminal incidents, the Sixth Amendment requirement of a unanimous verdict obliges the judge to instruct the jury that it must reach unanimous agreement as to a particular incident in order to find the defendant guilty as charged.”) (footnote omitted); Ayers v. State, 844 A.2d 304, 309 (Del. 2004) (“A specific unanimity instruction is required . . . if one count encompasses two separate incidents, either of which could support a defendant’s conviction for a particular charge.”) (cleaned up); State v. Allen, 232 P.3d 861, 864 (Kan. 2010) (“In a multiple acts case, either the State must inform the jury which act to rely upon in its deliberations or the court must instruct the jury to agree on the specific criminal act.”); Commonwealth v. Palermo, 125 N.E.3d 733, 742 (Mass. 2019) (holding a special juror unanimity instruction “is required when, on a single charged offense, the prosecutor presents evidence of separate, discrete incidents, any one of which would suffice by itself to make out the crime charged”) (internal quotations omitted). 9 In that case, this Court considered whether it was unconstitutionally duplicitous for a defendant to be charged with a single count of a sexual offense in the second degree and a single count of a sexual offense in the third degree based on a series of sexual offenses (continued. . .) 10 there are at least four different, but occasionally overlapping, contexts in which such an “e pluribus unum approach”10 is permitted: (1) when the acts are committed as part of a single incident or transaction; (2) when they are simply descriptive of a single offense; (3) when they are committed at different times but in a continuing course of conduct with a single objective; and (4) when a single offense may be committed in two or more different ways. Id. at 11, 752 A.2d at 611 . Charging a series of criminal acts that falls into one of these categories under a single count will not violate constitutional and statutory prohibitions of duplicitous charges. See id., 752 A.2d at 611 .

Petitioner’s Actions as a Single Incident or Transaction11 The central disagreement in this case is whether the sequence of events, commencing with Petitioner allegedly “brandishing” the rifle in the Robins’ attic and (. . . continued) committed at different times over an extended period of time on the same victim. Cooksey, 359 Md. at 3 , 752 A.2d at 607 . We found that those charges were facially duplicitous, as a second- or third-degree sexual offense is a “single-act” crime that could not encompass in one count various distinct incidents occurring over a prolonged period of time. Id. at 23 , 752 A.2d at 618 .

This Court went on to find that the charges of sexual child abuse under Maryland Code, Article 27, § 35C, repealed by Acts 2002, c. 26, § 1, eff. Oct. 1, 2002, based on the same conduct were not unconstitutionally duplicitous, as “abuse” under the statutory definition could be committed either through a single act or a continuing course of conduct consisting of multiple acts. Id. at 23–24, 752 A.2d at 618 . 10 The phrase “e pluribus unum,” meaning “out of many, one” was used in Cooksey to describe circumstances in which separate criminal acts may combine to create a single punishable offense. 359 Md. at 11 , 752 A.2d at 611 ; see also e pluribus unum, MERRIAM- WEBSTER, https://perma.cc/9N45-25PN (last visited Nov. 30, 2021). 11 The Dissent argues that Petitioner’s constitutional duplicity challenge is not preserved for appellate review for a myriad of reasons. See Johnson v. State, No. 11 Sept. (continued. . .) 11 concluding with the struggle over the handgun and the shooting of Ms. Robin’s hand, constitutes a “single incident or transaction” as discussed in Cooksey, 359 Md. at 11, 752 (. . . continued) Term, 2021, slip op. at 19–38 (Gould, J., dissenting).

Maryland Rule 8-131(b)(1) provides that: Prior Appellate Decision. Unless otherwise provided by the order granting the writ of certiorari, in reviewing a decision rendered by the Court of Special Appeals or by a circuit court acting in an appellate capacity, the Court of Appeals ordinarily will consider only an issue that has been raised in the petition for certiorari or any cross-petition and that has been preserved for review by the Court of Appeals. Whenever an issue raised in a petition for certiorari or a cross-petition involves, either expressly or implicitly, the assertion that the trial court committed error, the Court of Appeals may consider whether the error was harmless or non-prejudicial even though the matter of harm or prejudice was not raised in the petition or in a cross- petition. Here, neither the State’s brief to this Court, nor its brief to the Court of Special Appeals alleged that Petitioner’s constitutional duplicity argument was not preserved for appellate review.

See Johnson, 2021 WL 408845 , at ¹ n.4. We are therefore not required to consider the issue under Md. Rule 8-131(b)(1). The Dissent nonetheless argues that we should sua sponte exercise our discretion to consider the preservation issue at this late stage and reject Petitioner’s constitutional claim on those grounds alone. Johnson, slip op. at 35–38 (Gould, J., dissenting).

We do not agree. This Court has stated that “except in most extraordinary circumstances, we will consider on an appeal resulting from a grant of a writ of certiorari only those questions raised in the petition and matters relevant to those questions[.]” Walston v. Sun Cab Co., 267 Md. 559, 569 , 298 A.2d 391, 397 (1973). We have declined to consider even “errors of Constitutional dimension” where a party fails to preserve the issue for appeal. See Robinson v. State, 410 Md. 91, 103 , 976 A.2d 1072, 1079 (2009).

We are much less compelled to exercise our discretion to consider an argument that would prevent Petitioner from asserting a constitutional right, where such an argument has never been advanced by the State. We do not agree with the Dissent that defendants will have a tactical advantage as a result of our opinion. See Johnson, slip op. at 36–38 (Gould, J., dissenting). We are not dismissing the obligation of defendants to preserve a duplicity claim at trial.

Rather, we are declining to comment on the merits of Petitioner’s failure to preserve his duplicity claim at trial because the State never made an argument on such grounds either before this Court or the Court of Special Appeals. Neither do we agree with the Dissent that the substance of our rule on duplicitous charges, set forth below, should prevent us from deciding the duplicity issue without considering the preservation of the argument. See id. 12 A.2d at 611. See Johnson, 2021 WL 408845 , at ²–3.

The Court of Special Appeals found that it was, reasoning that “[a]ll of [Petitioner’s] conduct while in the Robin home were [sic] in furtherance of the burglary[]” and that the whole of his confrontation with Ms. Robin “occurred within a short span of time and in a somewhat confining space[.]” Id. at ³. We do not agree that this was a sufficient basis for determining whether Petitioner’s two encounters with Ms. Robin constituted a “single incident or transaction.” Cf. Bussie v. State, 115 Md. App. 324, 335 , 693 A.2d 49, 54 (1997) (maintaining “that mere physical closeness and chronological syncopation of criminal activity are not alone sufficient to render evidence of other crimes mutually admissible based upon ‘same transaction’ relevance”). In Cooksey, we cited to State v. Warren, as an example of a circumstance where multiple criminal acts could be considered a “single incident or transaction.” 359 Md. at 11–12, 752 A.2d at 611 .

Warren involved a defendant charged in a single count with stealing various sums of money belonging to several different owners, at the same time. 77 Md. at 121 , 26 A. at 500 . This Court held that “the stealing of several articles at the same time, whether belonging to the same person or to several persons, constituted but one offense. It is but one offense because the act is one continuous act,––the same transaction[,]” and therefore concluded that the value of the stolen property could be aggregated to determine whether the offense constituted grand or petit larceny. Id. at 122– 23, 26 A. at 501 .

In Stoddard v. State, this Court explained that it was dispositive for the “single transaction” theory that the offenses in Warren were committed “at the same time.” 13 395 Md. 653, 670 , 911 A.2d 1245, 1254 (2006) (summarizing the discussion of Warren in Cooksey, 359 Md. at 11 , 752 A.2d at 611 ). Unlike the theft at issue in Warren, some crimes, including ordinary assault, “tend to be committed in a single continuous episode rather than in a series of individually chargeable acts.” Owens v. United States, 497 A.2d 1086, 1096 (D.C. 1985). “The fact that a criminal episode of assault involves several blows or wounds, and different methods of administration, does not convert it into a case of multiple crimes . . . .” Id. (quoting Smith v. United States, 418 F.2d 1120, 1121 , cert. denied, 396 U.S. 936 , 90 S.Ct. 280 , 24 L.Ed.2d 235 (1969)). A. The Standard for Determining a Single Incident or Transaction This Court has yet to outline a guiding standard for trial courts in determining whether a course of conduct involving separate criminal acts may be considered a singular incident or transaction, in order to satisfy the constitutional requirement of juror unanimity.

As discussed above, underlying this Court’s prohibition on duplicitous charges are concerns of being unable to discern from a guilty verdict rendered on a duplicitous count whether the jury unanimously found guilt as to any of particular offense contained in the count. See Cooksey, 359 Md. at 9–10, 752 A.2d at 610 . As such, any inquiry into whether a series of criminal acts underlying a single charged crime may be considered a “single incident or transaction,” id. at 11 , 752 A.2d at 611 , must center on whether a juror could reasonably perceive separate criminal incidents underlying the singular charge and base their convictions on such different underlying incidents. In circumstances where a charge is not facially duplicitous but becomes duplicitous based on evidence of multiple distinct 14 incidents presented at trial to prove a single charged count, we agree with our sister states12 that the prosecutor should be required to elect between the incidents, or the jury should be provided with a special instruction that it must unanimously agree as to which distinct criminal incident underlies its decision to convict.13 The District of Columbia Court of Appeals applied a similar standard in Hagood v. United States, 93 A.3d 210 (D.C. 2014), to facts somewhat analogous to those at issue here.

That case involved two defendants who were tried for attempting to break into the same apartment twice while armed within a span of ten minutes but were each charged with only a single count of first-degree burglary and assault with a deadly weapon. Id. at 214–15. The court found that, “[i]n determining whether a special unanimity instruction was required, we need only determine that it was possible, based on the evidence, for the jury to reasonably perceive separate incidents and then base [its] convictions on different factual predicates.” Id. at 220–21. In making this determination, it outlined a list of factors to 12 See supra note 8. 13 In Cooksey, this Court rejected the State’s suggestion of resolving issues posed by facially duplicitous pleadings by requiring the State to elect between incidents at the end of trial or giving the jury a special unanimity instruction. 359 Md. at 26–27, 752 A.2d at 619–20.

This Court correctly determined that allowing a trial to proceed on a duplicitous count until its conclusion would be an inefficient and ineffective method of addressing the issues posed by facially duplicitous pleadings, which can be identified and addressed before a trial commences. Id., 752 A.2d at 619–20. Ideally, of course, the issue will be avoided by a prosecutor charging multiple counts where there is evidence of multiple distinct incidents that could meet the definition of a crime. However, in circumstances where duplicity concerns arise only as evidence is presented and arguments are made at trial, the solutions of the State electing between the incidents or giving the jury a special unanimity instruction satisfy constitutional unanimity requirements without the need for a new trial. 15 consider when determining whether the actions underlying a criminal charge are factually distinct, including: (1) when the acts have occurred at different times and were separated by intervening events, (2) when they occurred in different places, (3) when the defendant has reached a fork in the road and has decided to invade a different interest, or (4) when the first act has come to an end and the next act is motivated by a fresh impulse.

Id. at 218 (internal quotations omitted) (quoting Gray v. United States, 544 A.2d 1255, 1258 (D.C. 1988)). The court emphasized that these factors are not dispositive but rather “offer guideposts in resolving the central question in determining whether a special unanimity instruction was required: whether a reasonable jury ‘must have’ agreed upon one particular set of facts as the factual predicate for the verdict or whether some jurors ‘could have’ believed one set of facts while other jurors could have believed another.” Id. In the same vein as Hagood, Maryland case law grappling with whether certain incidents may be considered a part of the “same transaction” in other contexts has focused on whether there was either a break in time or a separating intervening event between the incidents. See, e.g., Kelley v. State, 402 Md. 745, 757 , 939 A.2d 149, 156 (2008) (quoting Richardson v. Commonwealth, 489 S.E.2d 697, 700 (Va.

App. 1997)) (holding that in determining whether the theft of various items can be considered a part of the same larceny under the common law “single larceny doctrine,” factors to consider include “the location of the items stolen, the lapse of time between their taking, the general and specific intent of the thief, the number of owners, and whether intervening events occurred between the takings”); Purnell v. State, 375 Md. 678, 698 , 827 A.2d 68, 80 (2003) (holding that two 16 charges of resisting arrest violated double jeopardy because all the criminal activity occurred in the same place and time and “there was no break, for any appreciable time, in the sequence of events, which could categorize the counts charged as separate and distinct acts”); Smith v. State, 232 Md. App. 583, 600 , 158 A.3d 1154, 1164 (2017) (finding that evidence of the defendant spitting was admissible to support the charge of threatening a state official because the spitting and oral threats occurred in the same location, in the same half hour interview, and there were no intervening events separating the two incidents); Washington v. State, 200 Md. App. 641, 653 , 28 A.3d 164, 171 (2011) (finding that, for double jeopardy purposes, the fleeing or eluding police charges that began in a car chase and ended in a foot chase were based on one “act or transaction,” as there “was no lapse in time in which [the officer] ceased trying to apprehend the appellant and the appellant ceased trying to get away, only to have the attempt to stop and attempt to get away resume later”). As such, we conclude that the Hagood factors, with a particular focus on a lapse in time and intervening events between incidents, may be helpful in determining whether a juror might perceive a series of acts underlying a criminal charge as distinct incidents. Although we conclude that the four Hagood factors are helpful, the factors are not dispositive, to our inquiry. 93 A.3d at 218–19. In determining whether a reasonable juror might perceive incidents as distinct, is it also helpful to consider whether the jury was tasked with resolving different factual disputes pertaining to the incidents.

This methodology was utilized by the Arizona Court of Appeals in State v. Klokic in determining that a defendant’s actions of twice pointing a gun in a threatening manner during a single 17 road rage incident should have been considered two separate assaults. 196 P.3d 844, 850 (Ariz. Ct. App. 2008). The court reasoned the defendant provided different defenses as to each alleged assault, and thus “there [was] a distinct possibility that the jury was not unanimous as to the act or acts that gave rise to Klokic’s criminal liability.”14 Id. at 850– 51. Finally, we must consider whether the State invited the jury to perceive the incidents as separate.

The likelihood that a reasonable juror will perceive multiple incidents underlying a single charged count is enhanced if the prosecutor encourages them to perceive them as distinct. Many of our sister states have come to the same conclusion. The New Mexico Supreme Court in State v. Consaul, required a special jury instruction on unanimity where the “prosecutor invited the jury to convict [the defendant] of child abuse whether or not the jury agreed on what criminal act [he] actually committed.” 332 P.3d 850 , 855 (N.M. 2014). The court reasoned that “[j]urors should not be left free, let alone encouraged by the prosecutor, each to go his or her own way when it comes to determining what criminal conduct—if more than one act is alleged—caused the child’s harm.

The jury 14 Although Klokic involved distinct affirmative defenses, its reasoning was not so limited. It relied in part on the Arizona Supreme Court decision in State v. Davis, which found the inclusion of two incidents of sexual assault under the same count to be duplicitous because the defendant had an alibi for one incident and offered evidence that the victim had sexual contact with a different individual for the other incident. Id. at 849 (summarizing State v. Davis, 79 P.3d 64, 76 (2003) (en banc)); id. at 851 (“Thus, as in Davis, although some jurors might have dismissed Klokic’s claims across the board, it is entirely possible that different jurors believed different facts with respect to each of the acts.”). 18 needs to agree unanimously on what conduct caused harm to the child.” Id. at 855. Similarly, the California Supreme Court found in People v. Diedrich that although a charge of bribery could logically take place over a long period of time, a special unanimity instruction was required because the prosecutor argued to the jury that the “crime [was] completed” after the first of two incidents evidencing bribery. 643 P.2d 971, 980 (Cal. 1982).15 B. Application to this Case Applying the standard discussed above to the facts of this case, we conclude that the jury could have reasonably perceived two distinct assaults and two distinct uses of a firearm in the commission of a crime of violence from the evidence presented and arguments made in Petitioner’s trial.

Although the two incidents were separated by only a matter of minutes, there were intervening events between the alleged assault with the rifle at the top of the stairs and the alleged assault with the handgun at the bottom of the stairs. Ms. Robin ran downstairs, called 911, retrieved her handgun from a lockbox, loaded the gun with bullets 15 See also Hagood, 93 A.3d at 220 (“From this evidence of two confrontations and the government’s characterization during closing arguments of appellants’ actions as ‘two burglaries’ and ‘two shootings,’ the jury could reasonably have perceived two factually distinct burglaries and assaults.”); State v. White Face, 857 N.W.2d 387 , 395–96 (S.D. 2014) (holding that because “the State invited the jury to convict on either incident” of child abuse, it could not “be reasonably certain that White Face was found guilty by a unanimous jury”); State v. Cordeiro, 56 P.3d 692, 709 (Haw. 2002) (holding that a special unanimity instruction was required because, among other things, the prosecutor “represented to the jury that only a single offense was committed but that either act could support a guilty verdict as to first degree robbery[]”); Perley v. State, 947 So. 2d 672, 674 (Fla. Dist. Ct. App. 2007) (“By allowing the State to tell the jury it could convict Perley for either instance of escape, the trial court compromised the jury’s ability to render a unanimous verdict.”). 19 located in a different location from the lockbox, and returned to the bottom of the stairs.

These intervening events were explicitly emphasized by the State through the testimony of Ms. Robin and in the prosecutor’s closing arguments. In her testimony at trial, Ms. Robin recounted the intervening events between the two incidents, stating: . . . I see [Petitioner] still somehow walking down -- in this whole thing, he has not fled. I have time to go down the stairs.

Get into my bedroom. Into my closet. Open the lockbox. Get my gun.

Get the speed loader. Load the gun. Close the gun. Get back to the door and the man is still at the top of the stairs.

So at this point, I’m totally weirded out. I mean, at no point has this guy tried to bolt. He hasn’t -- it was really weird that he just was sauntering down my stairs. The State reiterated this point in its closing arguments, stating: You can hear [Ms. Robin’s] description of having to go, you know into the other room, into her bedroom.

Into the wall safe. Open the wall safe. Get the gun out, and then get the ammunition from another place, close by but a different place. It takes times [sic] to do all those things.

And to call 911 at the same time. What does [Petitioner] do[?] He sticks around. He gets his backpack. . . . what does he do while she’s doing those things downstairs, instead of run out of the home, get out of there as quick as possible[?] Remember the language that she used. I think the word was “sauntering” when she came back and she saw him coming back down the steps.

He’s still trying to make his crime succeed. (Emphasis added). This emphasis on Petitioner’s affirmative decision to “stick[] around” can also be categorized as a “fork in the road” moment where Petitioner decided to “invade a different interest[]” pursuant to the third Hagood factor. See Hagood, 93 A.3d at 218 .

While Ms. Robin was in her bedroom, Petitioner had a clear opportunity to leave, but instead 20 affirmatively chose to stay in the exact same place she had left him. It was not until Ms. Robin returned to the stairs with her gun minutes later and informed Petitioner that the police were on their way, that he attempted to leave the attic. For similar reasons, when Ms. Robin ran down the stairs after her initial encounter with Petitioner, it is clear that “the first act ha[d] come to an end and the next act [was] motivated by a fresh impulse[]” pursuant to the fourth Hagood factor. Id. at 218 .

When Ms. Robin ran down the stairs and into her bedroom, the alleged threat of immediate bodily harm as a result of Petitioner brandishing the rifle and telling her that it was loaded had come to an end. The incident at the bottom of the stairs also appeared to be motivated by a fresh impulse from the Petitioner. Rather than attempting to continue the burglary, as the State argued he was attempting to do in the attic while Ms. Robin was downstairs, when Petitioner struggled with Ms. Robin to get out of the attic stairway door, it appeared that he was trying to leave the house before the police arrived. Thus, Petitioner was motivated by a “fresh impulse[]” in his encounter with Ms. Robin at the bottom of the stairs.

See id. at 218 . This is further evidenced by fact that Petitioner abandoned the backpack filled with the Robin’s stolen items during his struggle at the bottom of the stairs. The distinction between the incident at the top of the stairs with the rifle and the incident at the bottom of the stairs with the handgun comes into even greater relief when we focus on the charge of a use of a firearm in the commission of a crime of violence. The two incidents involved the use of two separate firearms at two distinct times.

Petitioner not even aware of the existence of Ms. Robin’s handgun at the time he used the rifle to 21 frighten Ms. Robin. Petitioner’s impulse to shoot Ms. Robin with the handgun did not arise until the handgun was introduced by Ms. Robin – after Petitioner had already used the rifle to frighten Ms. Robin at the top of the stairs. This clear demarcation between the uses of the two firearms, in turn, aids in distinguishing between the two assaults, both of which were premised on Petitioner’s use of the firearms. The parties dispute whether the incident at the top of the stairs with the rifle and the incident at the bottom of the stairs with the handgun should be characterized as occurring in the same place pursuant to the second Hagood factor.

The State argues that these two incidents did occur in the same place, namely, the stairs to the attic, while Petitioner describes them as occurring in two different places: in the attic at the top of the attic steps and outside the door at the bottom of the steps. For purposes of our analysis, it is not important whether the incidents are described as occurring in the same place or different places. More critical is the separation of the two incidents as discussed above, namely, the break in the action and intervening events that created a “fork in the road” during which Petitioner made an affirmative decision to “stick[] around.” See id. at 218 . Further bolstering our determination that a jury could have reasonably perceived the incidents as separate is the fact that the jury was tasked in this case with resolving different factual disputes pertaining to each incident.

The State alleged in support of its assault and use of a firearm in the commission of a crime of violence charges that during the episode at the top of the attic stairs, Petitioner brandished the rifle to Ms. Robin and told her “this thing is loaded[.]” Defense counsel disputed this allegation, claiming that Petitioner was 22 holding the rifle, not in an attempt to threaten Ms. Robin, but in an attempt to steal it, focusing on the fact that Ms. Robin never testified that Petitioner pointed the rifle at her, but rather that he held it upright and titled it backwards. Defense counsel also disputed whether Petitioner told Ms. Robin that the rifle was loaded or cycled its lever, pointing to her failure to tell police who interviewed her shortly after about those details of the incident. Pertaining to the incident at the bottom of the stairs, defense counsel disputed the assault and use of a firearm in the commission of a crime of violence charges by arguing that Petitioner was simply trying to leave the house, grabbed the handgun to prevent Ms. Robin from shooting him, and that the gun went off accidently during their struggle. It is possible that some jurors believed defense counsel’s version of the incident with the rifle, and it is possible that other jurors believed defense counsel’s version of the incident with the handgun.

We have no way of knowing, based on its guilty verdict, whether a unanimous jury found Petitioner guilty of second-degree assault or use of a firearm in the commission of a crime of violence for either incident. Finally, this Court finds it conceivable that a reasonable juror could have believed there to be two distinct incidents underlying the assault and use of a firearm in the commission of a crime of violence charges because the State encouraged the jury to view the incidents as separate at trial. During closing arguments, the State told the jury that Petitioner committed a first-degree assault “initially [by] pulling the rifle on [Ms. Robin], and then also [in] the struggle over the gun and shooting her in the hand.” Again, in closing rebuttal arguments, the State urged the jury to find Petitioner “[g]uilty of the first-degree 23 assault of Ms. Robin, not only up in the attic when he arms himself with their rifle, but when we move downstairs to the struggle and him firing that handgun. Firing that bullet through her hand.” (Emphasis added).

In a similar way, the State bifurcated the incidents underlying the use of a firearm in the commission of a crime of violence charge, stating that Petitioner’s use of a firearm during the burglary included “initially [the] rifle he grabbed and also the handgun.” It similarly went on to state in its closing rebuttal arguments that the jury should find Petitioner “[g]uilty of using that rifle upstairs to try and complete the burglary[] [and] [g]uilty of using that handgun during the struggle.” In addition, the State’s emphasis on the break between the incidents and the time period when Ms. Robin went downstairs, called 911, and retrieved her gun, similarly invited the jury to perceive the incidents as separate. In applying this standard, we reiterate that the course of events should not be viewed from the prospective of Ms. Robin or Petitioner, but from the prospective of a reasonable juror. Here, the State’s emphasis at trial on the intervening events between the incidents and Petitioner’s affirmative decision to “stick around” during that time, as well as State’s presentation of the incidents as separate in its closing, make it particularly likely that a reasonable juror could perceive two separate incidents instead of one. Tasking the jury with resolving different factual disputes pertaining to each of the incidents further reinforced the likelihood that it could view them as separate.

This is true even though, as the Dissent points out, it is possible that neither Ms. Robin nor the Petitioner actually viewed any “fork in the road” or differing motivation between their two encounters. See 24 id. at 218 (“[O]ur inquiry focuses on the jury’s perception of the evidence presented at trial. It does not focus on the defendant’s choice of actions at the time of the alleged crime.”) (Emphasis omitted). Petitioner’s case is comparable to Hagood, where the District of Columbia Court of Appeals determined a single charge of attempted armed burglary and assault with a dangerous weapon to be duplicitous.

Id. at 220–21. In that case, two armed men attempted to break into an apartment, but its occupants were able to successfully push them out. Id. at 214–15. The men briefly went outside, but a few minutes later they entered the same apartment but again were quickly pushed out by its occupants.

Id. at 215 . Shots were fired during both of these encounters. Id. The court found that a special unanimity instruction was necessary for the charges of attempted armed burglary and assault with a dangerous weapon, reasoning, in part, that [w]hile it is true that both incidents occurred at the same apartment, involved the same parties, and took place within a relatively short time— approximately ten minutes—of each other, these facts alone are not determinative.

It is significant that in this case, when the trial is viewed as a whole, the jury was presented with evidence of what the government referred to in closing as “two burglaries” and “two shootings[.]” Id. at 219–20 (footnote and internal citations omitted). The court emphasized that “a single purpose and a single criminal action are not necessarily the same thing,” and pointed out that the jury in that case was tasked with resolving different factual disputes pertaining to two incidents, making it such that a jury could “reasonably perceive separate incidents and then base [its] convictions on different factual predicates.” Id. at 221 . The same is true in 25 Petitioner’s case, as the State emphasized the separation between two incidents at trial, and the jury was tasked with resolving different factual disputes as to each incident. We do not agree with the Dissent’s assertion that Petitioner’s case is more akin to Guevara v. United States, 77 A.3d 412 (D.C. 2013).

Johnson, slip op. at 12–14 (Gould, J., dissenting). In that case, the District of Columbia Court of Appeals found that a special unanimity instruction was not required where three separate threats to a victim’s life were made during the course of his hour-long abduction. Guevara, 77 A.3d at 418–19. The defense never requested a special unanimity instruction at trial, and the court found that the trial court did not commit plain error by failing to give such an instruction.

Id. at 419–20. In addition to considering that all of the threats occurred during the abduction and that they were communicated in the same manner, to the same person, and with the same intent, the court pointed to the fact that the jury was tasked with resolving the same factual dispute as to each threat, namely, whether the victim had correctly identified the defendant as one of the perpetrators.16 Id. at 420–21. Thus, “if the jury rejected [defendant’s] defense as to one of the threats, it necessarily rejected it as to all three threats[.]” Id. at 421 . As discussed above, the same is not true in Petitioner’s case, as some jurors could have easily believed defense counsel’s theory that Petitioner was not threatening Ms. Robin with the rifle in the 16 Although we characterize this consideration as resolving a factual dispute, the District of Columbia Court of Appeals refers to this as a consideration of whether the incidents were “legally separate,” meaning that different legal defenses could applied to each.

Id. at 421 . It is unimportant for our purposes how exactly this consideration is framed. 26 attic but stealing it instead, and not believed its theory that the handgun was accidently discharged into her hand, or vice versa. We reiterate that no single factor is dispositive, and the central inquiry remains whether jurors could have reasonably perceived the incidents as separate, such that some of them could have based their conviction on an entirely different set of underlying facts than other jurors.17 Considering the foregoing, we conclude that the jury could have reasonably perceived two separate incidents underlying the second-degree assault and use of a firearm in the commission of a crime of violence charges. As such, the incidents cannot be categorized as a “single incident or transaction[,]” such that the State’s decision to charge only a single count of second-degree assault and use of a firearm in the commission of a crime of violence could be considered not unconstitutionally duplicitous.

See Cooksey 359 Md. at 11 , 752 A.2d at 611 . 17 Contrary to the Dissent’s assertions, we cannot deduce, based on the jury’s acquittal of Petitioner’s first-degree assault charge, which factual incident underlies the jury’s conviction for second-degree assault and use of a firearm in the commission of a crime of violence. See Johnson, slip op. at 3–5 (Gould, J., dissenting). This Court has expressly permitted factually inconsistent verdicts, which are “illogical merely[,]” although not legally inconsistent. McNeal v. State, 426 Md. 455, 466 , 44 A.3d 982, 988 (2012).

This is because we have recognized that “[j]uries may engage in internal negotiations, compromise, or even make mistakes; however, we cannot divine whether the inconsistency is the product of lenity. We will not risk disturbing a verdict for the wrong reasons.” Id. at 472 , 44 A.3d at 992 . Because we permit a jury’s verdict to be factually inconsistent, or in other words, illogical, we cannot not make logical deductions about the facts that must underly one jury verdict based on the jury’s verdict on another charge. 27 Petitioner’s Actions as a Continuing Course of Conduct with a Single Objective Although Petitioner’s actions cannot be categorized as a “single incident or transaction[,]” they could still satisfy this Court’s rule against duplicitous charges if they can be categorized as a “continuing course of conduct with a single objective[.]” Cooksey, 359 Md. at 11 , 752 A.2d at 611 . Although the Court of Special Appeals’ majority determined that Petitioner’s actions constituted a single ongoing incident, it also relied on the following quote from Mohler, 120 Md. at 327–28, 87 A. at 671–72: If the acts alleged are of the same nature and so connected that they form one criminal transaction, they may be joined in one count, although separately considered they are distinct offenses.

If they can be construed as stages in one transaction and are not inherently repugnant, the count will not be bad for duplicity. Johnson, 2021 WL 408845 , at ³. Mohler and this exact quote were used by this Court in Cooksey to describe the “continuing course of conduct[]” exception to duplicitious charges. 359 Md. at 12–13, 752 A.2d at 612 . Thus, in-as-much as that theory was relied on by the Court of Special Appeals in reaching its conclusion, this Court will consider whether the theory is applicable to Petitioner’s case.

Mohler involved a defendant charged with a single count of malfeasance in office based on allegations that he had, by virtue of his office, unlawfully and corruptly accused a man of selling goods without a license, corruptly obtained a warrant and arrested that man, coerced him to pay money to a justice of the peace without a trial, and then received part of that sum from the justice of the peace. 120 Md. at 326–27, 87 A. at 671 . The court 28 concluded that the single charge of malfeasance in office was not unlawfully duplicitous, reasoning: The particular misconduct with which the appellant was charged was that he corruptly obtained money under cover of his office. This was clearly the charge he was called upon to meet. The other averments in the count, although they may have charged distinct and separate offenses, were only recitals of the means taken by him to accomplish the end.

Considered as a whole, they constitute but one transaction, and are the steps employed from the beginning to the end. We are therefore of the opinion that the count was not bad for duplicity. 120 Md. at 328 , 87 A. at 672 . We conclude that the circumstances and rationale behind Mohler are inapplicable to Petitioner’s case. Unlike in Mohler, Petitioner’s actions at the top of the stairs with the rifle and at the bottom of the stairs with the handgun cannot be considered merely steps employed from the beginning to the end of a single transaction.

It is not clear from the record that the two incidents were designed to accomplish a single objective. At trial, the State characterized Petitioner’s objective in brandishing the rifle at the top of the stairs as continuing his burglary. Such an interpretation is bolstered by the fact that Petitioner did not immediately flee when given the opportunity while Ms. Robin ran downstairs to get her gun. In contrast, Petitioner’s objective during the incident at the bottom of the stairs, culminating in the shooting of Ms. Robin’s hand, could fairly be characterized as escape.

By the time the shooting occurred, Petitioner had dropped his backpack filled with stolen items in order to get through the door. He was no longer, as the State put it, trying “to make his crime succeed[,]” but rather he was trying to get out of the house before the police arrived. Thus, unlike in Mohler, the episode with the rifle and the episode with the handgun 29 were not merely the steps from beginning to end of a course of conduct with the same objective.18 Petitioner’s actions therefore cannot be characterized as a “continuing course of conduct with a single objective[,]” so as to prevent this Court’s finding of unlawfully duplicitous charges. See Cooksey, 359 Md. at 11 , 752 A.2d at 611 .

CONCLUSION Based on the record before us, a reasonable jury could have perceived two separate incidents underlying Petitioner’s assault and use of a firearm in the commission of a crime of violence charges that were not a part of a continuing course of conduct with a single objective. As such, we cannot know whether the guilty verdicts as to those charges were based on unanimous findings of guilt with respect to either incident. Petitioner’s convictions therefore do not meet this Court’s constitutional standards for unanimity and must be vacated. See MD.

CONST., Decl. of Rts. art. 21; U.S. CONST. amend.

VI

JUDGMENT OF THE COURT OF SPECIAL APPEALS IS REVERSED WITH INSTRUCTIONS TO REMAND FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS TO BE PAID BY RESPONDENT. 18 The fact that these two assaults did not have a single objective is further reflected in the conflict between the Court of Special Appeals’ characterization of Petitioner’s purpose, and the State’s characterization in its brief to this Court. The Court of Special Appeals stated that both assaults were “in furtherance of the burglary.” Johnson, 2021 WL 408845 , at ³. In contrast, the State claimed that the single impulse motivating Petitioner in both encounters was escape: “[t]he whole time, Johnson was trying to escape from the house.” 30 Circuit Court for Baltimore County Case No. 03-K-18-003634 IN THE COURT OF APPEALS Argued: October 4, 2021 OF MARYLAND No. 11 September Term, 2021 ______________________________________ EVERETTE WILLIAM JOHNSON v. STATE OF MARYLAND ______________________________________ Getty, C.J. *McDonald Watts Hotten Booth Biran Gould, JJ. ______________________________________ Dissenting Opinion by Gould, J., which Getty, C.J. and McDonald, J., join. ______________________________________ Filed: March 14, 2022 *McDonald, J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to Maryland Constitution, Article IV, Section 3A, he also participated in the decision and adoption of this opinion.

Mr. Johnson proposes “a modest rule,” namely, “[w]hen a defendant is charged with a single count of an offense but evidence of multiple incidents is presented to the jury, the right to a unanimous verdict requires an election by the State or an instruction that a guilty verdict requires unanimous agreement as to which incident supports conviction.” The Majority accepts his invitation, holding that: [i]n circumstances where a charge is not facially duplicitous, but becomes duplicitous based on evidence of multiple distinct incidents presented at trial to prove a single charged count, . . . the prosecutor should be required to elect between the incidents, or the jury should be provided with a special instruction that they must unanimously agree as to which distinct criminal incident underlies their decision to convict. My disagreement lies not with the Majority’s articulation of the rule, but rather in its application of the rule to this case. As a substantive matter, this rule should not apply here. From the jury verdict, we know that the duplicity problem that concerns the Majority did not, in fact, come to pass.

Moreover, on the core issue, I believe the jury was presented with evidence of a single offense of assault and use of a firearm, not separate offenses. From a procedural standpoint, for the reasons explained below, even if the evidence showed multiple incidents of assault and use of a firearm,1 Mr. Johnson should not be entitled to benefit from the Majority’s holding. From the substance and timing of the specific objection raised at trial, as well as the jury’s verdict on each of the charges, the conclusion that Mr. Johnson waived the errors he claims on appeal is, in my view, inescapable. I will use the phrase “use of a firearm” as shorthand for “use of firearm in the 1 commission of a crime of violence.” I. THE FACTS OF THIS CASE DO NOT GIVE RISE TO A DUPLICITY PROBLEM According to the Majority, during Mr. Johnson’s singular burglary event at the Robins’ home, the jury could have “perceived two distinct assaults and two distinct uses of a firearm in the commission of a crime of violence from the evidence presented and arguments made in Petitioner’s trial.” Maj. op. at 19.

The Majority explains that “although the two incidents were separated by only a matter of minutes, there were intervening events between the alleged assault with the rifle at the top of the stairs and the alleged assault with the handgun at the bottom of the stairs.” Id. I see three fatal flaws in the Majority’s reasoning. First, it does not appear that the Majority has fully taken into consideration the ramifications of the jury’s actual verdicts. Put simply, we know that the jury unanimously acquitted Mr. Johnson of first-degree assault as to both incidents.

The Majority’s unanimity concern is, therefore, unfounded. Second, in my view, the so-called “intervening events” did not present Mr. Johnson with a fork in the road or time for a new impulse, as the Majority contends. Rather, this was one continuing encounter without a single break in the action. Third, the Majority’s conclusion is not, in my view, supported by the relevant caselaw.

I will address each issue in