Marks v. Criminal Injuries Compensation Board

RAYMOND G. THIEME, JR., J. (Retired, Specially Assigned). This is a petition for judicial review by Malcolm J. Marks, appellant, 1 from the decision by the Circuit Court for Baltimore City affirming the denial of victim’s compensation benefits issued by the Criminal Injuries Compensation Board. Although appellant presents a variety of questions for our consideration, at issue is whether the Board’s decision is supported by substantial evidence based on the record as a whole, is not arbitrary and capricious, and whether it accords with applicable law. 2 For the reasons set forth below, we shall affirm. ⁴² Procedural and Factual Background This matter involves a claim by Malcolm Marks for victim’s benefits under the Maryland Criminal Injuries Compensation Act (“Act”).

Md.Code (2001 & 2008 Repl.Vol.), §§ 11-801 et seq. of the Criminal Procedure Article (“Crim.Proc.”). 3 Procedural History On September 17, 2006, appellant was in Northeast Baltimore checking on his mother’s property in the 1100 block of East 20th Street. At about 2:00 a.m., while he was leaving the unoccupied house, appellant was shot several times by Corey ⁴³ Harrison. Appellant claimed that the assailant approached him and demanded money. Appellant suffered grievous injuries as a result and was hospitalized.

He continues to experience the effects of the assault, claiming that his injuries require physical therapy. On December 17, 2006, appellant filed a claim for victim’s benefits with the Criminal Injuries Compensation Board (“Board”). On June 5, and June 26, 2007, the Board issued a “Tentative Decision” denying benefits. The decision was affirmed on July 12, 2007, by the Secretary, Department of Public Safety and Correctional Services (“Secretary”).

Appellant filed a petition for judicial review in the Circuit Court for Baltimore City. A hearing was conducted on February 5, 2008, after which the circuit court issued an Order vacating the Board’s decision and remanding for further proceedings. The circuit court directed the Board to “determine whether there exists enough credible and probative evidence to generate the issue that [appellant] engaged in conduct that contributed to the injuries he sustained on the occasion at issue.” The circuit court added that, should the Board “conclude that this issue has been generated, the Board must afford Petitioner a full and fair opportunity at a hearing to prove that he did not contribute to the infliction of his injuries.” This hearing was conducted on September 24, 2008, and the Board issued a tentative decision on October 24 denying the claim. This denial was affirmed by the Secretary on November 17, 2008.

Appellant again sought judicial review of the Board’s decision, and on June 12, 2009, the circuit court upheld the Board’s decision. This petition for judicial review followed. Facts Appellant testified at the hearing on behalf of his claim, and he also presented the supporting testimony of Karen Marks, Lemuel Watson, and Anthony Ivory. The Board’s witnesses ⁴⁴ were Detective Frank Miller and Board Investigator Anita McKoy.

Appellant recounted that he would visit the neighborhood about two or three times per month to look after his mother’s house. Because his mother mainly resides in New York, appellant would check on her property to “secure the dwelling,” meet with the occasional tenant, and collect rent. On September 17, 2006, at about 9:00 or 10:00 p.m., appellant was at the house to “make sure all the doors were locked ... [and] all the windows were down.” After going through the house, appellant was preparing to leave. He recounted what next occurred: As I went to the front door, I opened the door, she has a security screen door.

I locked the front door. And as I was securing the security gate and locking the security gate, it was kind of odd because everybody was yelling. So as I turn around, I see a guy coming across the street. [He] was black, had a red mask on. At that point when he was coming closer to me, I didn’t recognize him at that time.

Okay. As he approached me, I acted like I was trying to get back in the house. He says, “Do you know what time it is? Lay down, get on the ground.” So I turned around and looked at him, and I told him, “I’m not getting on the ground.” At that time, I lunged off the step but he had a gun.

He had a gun in his hand. At that time I lunged up the step. And as I came down off the step, he was on the sidewalk, he shot me in my chin. And me collapsing on him, I grabbed him in a bear hug and secured the gun under my left, left arm.

And as I proceeded to slam him on the ground, he— we both fall to the ground. I gets up. I runs up the steps to try to get back in the house because he had already shot me in the face. He shoots me in the buttocks.

And then I turned back around because I can’t get in the house at this time. I grabs his armpits and we were ⁴⁵ tussling the whole time. The whole time we’re tussling[.] ... He kept shooting just rapidly.

As we were tussling, I pulls the mask that he had, the bandanna that he had on his face completely off, and, like, I sees him. I said — so he keeps on shooting. When I took the mask off, I said, I recognized his face. The assailant finished shooting and ran off, while appellant returned to the house and “laid on the bed because I was in shock that I got shot.” A neighbor arrived and appellant was eventually hospitalized. 4 Appellant had recognized his assailant after he pulled off the mask, and recalled that his name was Corey Harrison.

Appellant had known Harrison “through the neighborhood,” and cited an incident in the past involving dirt bikes: I used to drive — I used to have dirt bikes in my mother’s yard. That’s my mother’s home. And I used to take the kids out Sunday, little kids in the neighborhood on Sunday and take them dirt bike riding. And one particular incident, the dirt bike come up missing.

They broke in the yard and took the dirt bikes. And he said that he did — his name — they called him Seed or something, Corey Harrison. Appellant denied having any other dealings with Harrison, and had not spoken with him in months. He insisted that there was no “drug dispute with Corey Harrison[:]” [APPELLANT’S COUNSEL]: Q So I just want to get this straight.

So you’re telling us there was no drug dispute with Corey Harrison, the man who shot you? A Absolutely not. Q Nothing related to him at all? A Absolutely not. ⁴⁶ Q Okay.

You had just seen him with the dirt bikes and you had seen him around, but there was no dispute over territory? A Absolutely not. Absolutely not. The Board then examined Investigator Anita McKoy.

McKoy interviewed appellant, and also accessed appellant’s records in the Criminal Justice Information System. She testified without objection: As part of my investigation, I had went to Criminal Justice Information System. On Mr. Marks’ application he had listed that he was robbed and shot and he had listed the offender of Corey Harrison, so I did a CJIS check on both individuals---- Mr. Marks was also listed on CJIS as a drug kingpin and there were multiple distribution charges of handgun and selling around school. Also, a look at Mr. Harrison’s record, he was known to sell in the area, the vicinity where the shooting of the victim, took place.

A review of the police report indicates the incident as a[n] assault, but according to Mr. Marks’ application in his brief description said, “I was robbed and shot.” And also in my interview with him, he said he had over $1,000 in his wallet. So I think that would have been pertinent information to pass on to the police. [COMMISSIONER ROBERTS:] The designation of drug kingpin, where did that come from? A That came from Harford County. I think it was in 1993.

He was convicted ... 1/15/93, Harford County, CDS. It was listed as — charged with drug kingpin and distribution, et cetera, firearm. And transporting a deadly weapon. Appellant’s counsel argued that these records were not accurate: [APPELLANT’S COUNSEL]: If I may interrupt.

Can I — I want Mr. Marks to talk about his criminal history, ⁴⁷ because he doesn’t have multiple convictions. That’s not correct. After the Board assured counsel that she could examine appellant about the accuracy of his records, the examination returned to the investigator. McKoy then elaborated on discussions with a detective that underscored her suspicions: On 3/30/07 I had a telephone interview with Detective Miller, and Detective Miller had conveyed that Corey — just want to back up for a minute.

Malcolm Marks was shot on 9/17/06 and Corey Harrison was shot six days later, 9/23/06, and he was shot and killed. The conversation with Detective Miller advised us that this was over drug territory, territory [in] the area of Robb Street and 20th Street. And that Malcolm Marks has the majority of the neighborhood, most of the territory, and Corey Harrison had a smaller part of that area. Appellant was examined further by his attorney about his criminal record: Q You were, as you told me, ... had a drug-related conviction, so just tell us about that.

A 1993 I had a drug conviction. Distribution of CDS. The kingpin charge was dropped, and it was dropped. They charged me with a kingpin charge and they dropped it.

They ended up giving me distribution with intent in ‘9[3]. Wearing and carrying] a handgun, that was all in the same case.... 1999, I got locked up also for simple possession. I got a simple possession charge. ⁴⁸ Appellant was also asked about the $1,000 that had been in his possession on the night of the shooting. He explained that he always has cash on hand and that he was working for a “temp” agency at the time and that Mrs. Marks is also employed.

Detective Frank Miller testified for the Board. Detective Miller investigated the homicide of Corey Harrison, the alleged assailant in this case. Harrison was shot on September 23, 2006, “within 50 feet of where Mr. Marks was shot.” Detective Miller testified that there were suspicions of a relationship between appellant and Harrison: Initial indications from the Eastern District said that there may be some relationship to Mr. Marks’ case and my victim, Harrison. Q Okay.

A And I, while investigating that, Mr. Harrison’s case, some detectives from the Eastern District had occasion to interview Mr. Marks on September 25th. Q Did you have a discussion with those detectives? A Yes. Q Okay.

A And that’s Sergeant Maureen R. Jones and Darrilynn Walker, who’s the detective at the Eastern District. They showed Mr. Marks a photographic array. It’s basically six photographs made up of people of similar characteristics and a target. Their target was Corey Harrison, ... my victim.

Mr. Marks, his mouth was wired shut. He was — he would have difficulty communicating, but he made a positive ID of Corey Harrison as the individual shot. During my investigation, I was concerned that there was a possibility of, hey, you know, okay, this guy is dead, they got a shooting, you know, they’re just going to clear their shooting with my murder victim just because, you know, close proximity. ⁴⁹ So I was concerned, and basically about my investigation, so my partner and I went to Johns Hopkins, interviewed Mr. Marks ourselves. Q Who’s your partner, for the record?

A Brian Kershaw. Okay. Continue, sir. A Again, Mr. Marks, his mouth was wired, his jaw was wired shut.

He could mumble. He couldn’t speak very well, but we had an alphabetic board. We would ask him questions and he could verify yes or no, and he would make hand gestures. We talked about, what’s this over, and you know, is it over territory?

Is it over, you know, you guys, you have something blowing back and forth. And the indication was, it was over territory. Q What did you understand territory to mean? A Over drug territory.

The ability to sell in that neighbor[hood] and sell, you know, certain drugs. His indication to me and how I took the interview was Mr. Marks was the big player, he controlled the larger of the area. Mr. Harrison mainly dealt on Robb Street, but yet he wanted to control the larger area. Q Meaning Mr. Harrison wanted to control the entire area?

A Correct. Right. Mr. Marks even said that after the shooting, someone from the neighborhood came to him and said it was taken care of, meaning that Mr. Harrison had been killed for Mr. Marks. Mr. Marks indicated he didn’t ask anybody to go do it.

Q He indicated that to you himself? ⁵⁰ A Yes. He didn’t ask anybody to go do it, but it was done and someone had come to the hospital and told him it was done. Q Okay. A I asked him if he was angry at Harrison for shooting him, and he indicated no.

It was like this was expected because of the life that they were living. He kind of shrugged his shoulders about it, like, oh, you know, it happened. Q Okay. A And that was the only dealing I had with Mr. Marks, just that one day at— Q What’s the date of that day?

A The date was either — it was either September 25th or 26th. Following this testimony, appellant, on further examination by counsel, insisted that he could not recall any conversation with Detective Miller. He explained that he had not been in any condition to speak and thus any meaningful conversation with Detective Miller would have been impossible. His mouth had been wired shut with a heavy gauge, he had been heavily sedated with morphine, and he was unable to recognize even family members.

Detective Miller was recalled to the stand to explain his testimony in view of appellant’s emphatic denials. Detective Miller described appellant when he encountered him: He’s — he’s in pain, he’s alert, he was awake. His right arm ... was in a sling. His left arm was by his side.

He could, he could explain motions. He could grunt and make gestures. He could shake his head. He could respond when asked a question, and it appeared to me that he was responding, you know, openly and honestly because anybody who’s ever dealt with the police department, obviously, if the drug detective walked in there, he’s not going to tell a guy about the drugs.

I’m not there about that. I don’t ⁵¹ care about it____ I can’t stop crime if I’m worried about (unintelligible) drugs because nobody will talk to me. So we gained a lot of drug information that’s, you know, that’s just put out there. And he explained that this is— that’s the neighborhood.

He’s been in it all his life. Corey Harrison has been there most of his life, and they occupied the same territory. Q When you were getting this information from Mr. Marks, did you ever have any sense that he was incoherent? A No. Q Okay.

Did you have any sense that he could not, that he didn’t know what he was talking about? A No. No, not at all. On cross-examination by appellant’s counsel, Detective Miller testified that he discovered that appellant was not as “heavily sedated” as he had been led to believe. He recounted that, when he went to the hospital to interview appellant, he asked the nurse whether appellant was able to communicate.

Counsel further inquired: [APPELLANT’S COUNSEL:] Okay. I just have one more. Just I’m struck on the fact that there’s explicit details in this statement that you, you know, on 3/30/07 that Ms. McKoy put in her claim summary, and I just — I don’t understand how such detail could have been extracted from somebody who was in the state that he was in, even if he could ... nod or ... make some kind of gesture, it just seems — I just still don’t understand how you could get those kind of details. Like, okay — go through rival dealers, dispute over territory, majority of the neighborhood.

I mean, that’s very specific, and I guess, how were you able to extract that level of detail from him in the state that he was in? A That’s a closed question, yes or no. Just, you know, is — does Corey run the neighborhood or do you run the ⁵² neighborhood; is it a dispute over drugs. They were yes or no questions.

Q But how were you able to know that he understood the context of the conversation in the first place? A If he didn’t understand, he wouldn’t answer, and then we’d start over. We would ask a different question to make it a yes or no question. He couldn’t give me, you know, I run the territory because (unintelligible) off of 20th.

He couldn’t tell me that because he couldn’t talk. There were times when we were initially using the, they had a big alphabet board, so they could communicate with, where you’re putting up letters and you would go through A, B, C, to extract a word from him to put into a sentence. And then, you know, as we get, you know, two or three words in there, we start, okay, so is it about drugs, is it about territory. Q So he actually constructed a word— A Yes Q —to identify the fact that he understood what this conversation was about?

A Yes. Q He actually said, “Yes, drugs.” A Yes. Q Okay. Okay.

Karen Marks, appellant’s spouse, also disputed the detective’s account, and insisted that appellant had been in a coma for 21 days from September 17th, and that he could not even communicate with flash cards. Detective Miller testified in rebuttal: Well, sir [addressing a Commissioner], he was visited twice on the 25th of September by four detectives, one of which is a supervisor. He was awake and alert on two separate occasions. [COMMISSIONER ROBERTS:] And those are a part of your investigative notes, correct? A Yes, sir. ⁵³ Q And the investigative notes of the other detectives, correct?

A Yes, sir. Q Part of that interview included a lineup, correct? A Their interview included a lineup, yes, sir. Q As you were told.

A Yes, sir. Q And as a result of that, Mr. Harrison was positively identified, is that correct? A Correct. Lemuel Watson, a friend of appellant’s family from the neighborhood, confirmed that appellant would come by to check on his mother’s house, and would also visit the neighborhood with his son for bike rides.

Mr. Watson had seen Corey Harrison in the neighborhood, but could only recall a single issue between Harrison and appellant, and that involved one of appellant’s bicycles. When asked whether he had heard about appellant being involved in the drug trade, Watson testified: No. Not in any that I know, and all the times that I’ve known him. No, I’d like to say bout that, as far as that goes, I probably go off the point, but, you know, he and I have had a lot of conversations about just being older men now and being responsible and all that.... But, as far as he and I, you know, we got families, we got wives, we got our children, you know---- Anthony Ivory was appellant’s next-door neighbor, and had known appellant for some time.

He confirmed that appellant would come to the neighborhood to check on his mother’s house. Ivory noted that the house had been broken into at one point. Ivory did not know Corey Harrison, and was not “aware of any kind of dispute, drug related or otherwise between Mr. Marks and anyone in the neighborhood.” ⁵⁴ The Decisions Below On October 24, 2008, the Board issued an amended decision denying the claim. The Board credited the testimony of Detective Miller.

It also discounted the appellant’s testimony, explaining: The claimant stated at the hearing that the incident occurred when he was checking on a house owned by his mother. The claimant gave conflicting stories about whether the house was occupied by tenants or was vacant at the time of the shooting. In addition, during the investigation of the claim, the claimant told Investigator McKoy that he had over $1,000 in cash in his possession at the time of the shooting, yet had been unemployed for several months prior to the shooting and even when employed was working as a warehouse laborer and reported no other source of income. In addition, Ms. McKoy was informed by the Howard[ 5 ] County State’s Attorney’s Office that the claimant was classified in his prior criminal record as a drug “King Pin”.

After the shooting, the claimant went back into the house before seeking medical and police assistance. The Board concluded: The Board concludes after reviewing the file, the evidence submitted, and after due deliberation that the credible testimony of Detective Miller together with the results of the Board’s original investigation confirms the original conclusion that the claimant was shot as a result of participation in illegal activity; therefore the claimant’s conduct contributed to the infliction of his injury. The claimant’s own actions as noted above strongly suggest the conduct of a drug dealer engaged in his illegal activity and taking care to secure his product before seeking help. This decision was upheld by the Secretary.

On appellant’s petition for judicial review, the circuit court concluded that the Board’s decision was supported by “substantial evidence that the Petitioner’s conduct contributed to his injuries.” The ⁵⁵ circuit court noted that its review was limited, and that the resolution of factual issues was within the Board’s discretion. At the hearing the court pointed out: What effectually I have is presented by [counsel] that I shouldn’t believe the testimony of Detective Miller because it is not — it was the statement of Detective Miller concerning Mr. Marks’ statement which is clearly a hearsay statement, was not done in a way that leads to its admissibility. That leads to the issue concerning its viability. But again the ...

Board had the opportunity to assess Detective Miller he presented information about how he got the statement from Mr. Marks. Then Mr. Marks had the opportunity to testify as to the fact that he doesn’t remember giving the statement.... [T]hat’s still for the Board to make its determination as to who is credible and what the credible testimony means. We shall recite additional facts as necessary to address the issues before us. Discussion Standard of Review An appellate court, “[w]hen reviewing the decision of an administrative agency ... review[s] the agency’s decision directly, not the decision of the circuit court.” Comptroller of the Treasury v. Science Applications International Corp., 405 Md. 185, 192 , 950 A.2d 766 (2008) (citations omitted).

This Court will apply the identical standard of review as that employed by the circuit court. Spencer v. Board of Pharmacy, 380 Md. 515, 524 , 846 A.2d 341 (2004) (citations omitted); Neal v. Criminal Injuries Compensation Board, 191 Md.App. 664, 668 , 993 A.2d 175 (2010). See Motor Vehicle Admin. v. Shea, 415 Md. 1, 15 , 997 A.2d 768 (2010) (appellate court “looks through” circuit court’s decision while applying same standards of review) (citations omitted); Thanner Enterprises, L.L.C. v. Baltimore County, 414 Md. 265, 275 , 995 A.2d 257 (2010) (same). ⁵⁶ Judicial review of the Board’s decision is “authorized by-Maryland Code [(1984, 2009 Repl.Vol.) ], section 10-222 of the State Government Article [ (“State Gov’t”), the judicial review provision of the Maryland Administrative Procedure Act].” Johnson v. Criminal Injuries Compensation Board, 145 Md. App. 96, 105-06 , 801 A.2d 1092 (2002). Section 10-222(h) of the State Government Article provides: § 10-222.

(h) In a proceeding under this section, the court may: (1) remand the case for further proceedings; (2) affirm the final decision; or (3) reverse or modify the decision if any substantial right of the petitioner may have been prejudiced because a finding, conclusion, or decision: (i) is unconstitutional; (ii) exceeds the statutory authority or jurisdiction of the final decision maker; (iii) results from an unlawful procedure; (iv) is affected by any other error of law; (v) is unsupported by competent, material, and substantial evidence in light of the entire record as submitted; or (vi) is arbitrary or capricious. Pursuant to State Gov’t § 10-222, “ ‘Maryland courts play a limited role when reviewing adjudicatory decisions of administrative agencies[,]’” Motor Vehicle Admin. v. Dove, 413 Md. 70, 79 , 991 A.2d 65 (2010) (quoting Motor Vehicle Admin. v. Shepard, 399 Md. 241, 251 , 923 A.2d 100 (2007)), and a court’s role in conducting this review is “very narrow.” Shepard, 399 Md. at 252 , 923 A.2d 100 (citing Maryland Aviation Admin. v. Noland, 386 Md. 556, 570-71 , 873 A.2d 1145 (2005)). We are obliged “to review the agency’s decision in the light most favorable to the agency, since their decisions are prima facie correct and carry with them the presumption of validity.” Grasslands Plantation, Inc. v. Frizz-King En ⁵⁷ terprises, LLC, 410 Md. 191, 204 , 978 A.2d 622 (2009) (quoting Catonsville Nursing Home, Inc. v. Loveman, 349 Md. 560, 569 , 709 A.2d 749 (1998)) (internal quotation marks omitted). Our review of an agency’s determinations of law is plenary, although an agency’s interpretation of its organic statute is entitled to some deference.

Total Audio-Visual Systems, Inc. v. Dept. of Labor, 360 Md. 387, 394 , 758 A.2d 124 (2000) (citations omitted). See Spencer, 380 Md. at 529 n. 3, 846 A.2d 341 . “While we frequently give weight to an agency’s experience in interpretation of a statute that it administers, it is always within our prerogative to determine whether an agency’s conclusions of law are correct.” Kushell v. Dept. of Natural Resources, 385 Md. 563, 576 , 870 A.2d 186 (2005) (citations omitted). See Adventist Health Care, Inc. v. Md. Health Care Comm’n, 392 Md. 103, 121 , 896 A.2d 320 (2006). “When the agency is acting in a fact-finding or quasi-judicial capacity, we review its decision to determine ‘whether the contested decision was rendered in an illegal, arbitrary, capricious, oppressive or fraudulent manner.’ ” Baiza v. City of College Park, 192 Md.App. 321, 331 , 994 A.2d 495 (2010) (quoting Dept. of Natural Resources v. Linchester Sand & Gravel Corp., 274 Md. 211, 224 , 334 A.2d 514 (1975)). The findings of fact by the administrative agency are reviewed under a deferential “substantial evidence” standard.

See Stansbury v. Jones, 372 Md. 172, 182-83 , 812 A.2d 312 (2002). See generally, A. Rochvarg, Maryland Administrative Law § 4.33 at 137-39 (2007). Judicial review “does not involve an independent decision on the evidence.” Johnson, 145 Md.App. at 107 , 801 A.2d 1092 . Instead, “[w]e are limited to determining whether there is substantial evidence in the record as a whole to support the agency’s findings and conclusions, and to determine if the administrative decision is premised upon an erroneous conclusion of law.” Neal, 191 Md.App. at 668 , 993 A.2d 175 .

Substantial evidence review is narrow; the question is not whether we would have reached the same conclusions, but merely whether “a reasoning mind” could have reached ⁵⁸ those conclusions on the record before the agency____We appraise an agency’s fact finding in the light most favorable to the agency, and this deference extends to subsequent inferences drawn from that fact finding, so long as supported by the record. ... Indeed, “ ‘not only is it the province of the agency to resolve conflicting evidence, but where inconsistent inferences from the same evidence can be drawn, it is for the agency to draw the inferences.’ ”... We give great deference to the agency’s assessment of the credibility of the witnesses. The agency’s determination of factual issues will be upheld if the record of the agency proceeding affords a substantial basis of fact from which the issue can be reasonably inferred.

Schwartz v. Dept. of Natural Resources, 385 Md. 534, 554 , 870 A.2d 168 (2005) (quoting Gigeous v. ECI, 363 Md. 481, 504 , 769 A.2d 912 (2001) (citations omitted)). We have pointed out that “great deference is due [the findings of the administrative agency] under the ‘clearly erroneous’ standard.” Blakehurst Life Care Community/Chestnut Real Estate Partnership v. Baltimore County, 146 Md.App. 509, 516 , 807 A.2d 179 (2002) (citation omitted). Introduction The General Assembly enacted the Criminal Injuries Compensation Act in 1968 “for the purpose of enabling innocent victims of certain crimes to receive State-funded compensation for physical injury sustained by them as a result of the crime.” Opert v. Criminal Injuries Compensation Board, 403 Md. 587, 590 , 943 A.2d 1229 (2008) (citing Criminal Injuries Compensation Board v. Remson, 282 Md. 168, 171 , 384 A.2d 58 (1978)). See 1968 Laws of Maryland, Chap. 455, § 1.

The legislation was prompted by the General Assembly’s express finding of the “need for governmental financial assistance for such victims[.]” Id. See Criminal Injuries Compensation Board v. Gould, 273 Md. 486, 496 , 331 A.2d 55 (1975). Without a statutory compensation scheme, a crime victim may be left without an adequate remedy at law. See generally, Comment, Criminal Victim’s Compensation in Maryland, 30 Md. ⁵⁹ L.Rev. 266, 267-68 (1970).

The Act is remedial in nature, and “to the extent possible,” must be liberally construed to further its beneficent purposes. See Opert, supra, 403 Md. at 594 , 943 A.2d 1229 (citations omitted). Contributory Conduct The denial of an award in this case was based on the Board’s finding that appellant’s conduct contributed to his injuries, thus disqualifying him from entitlement to an award under the Act. Appellant presents a variety of arguments to challenge this finding.

Appellant urges that the appropriate standard of causation, by which the effect of a victim’s conduct on his injuries is evaluated, is that of “proximate cause,” and he claims that the evidence does not meet this standard. He further avers that the evidence does not show that he was participating in a crime at the time he suffered his injuries, and that any past conduct on his part should not preclude his entitlement to an award. Appellant contends that the Board improperly “based its denial solely on an alleged ‘continuing circumstance’ without citing to any specific behavior or conduct that would foreseeably lead to [his] injuries.” Appellant maintains that, regardless of a prior drug-related conviction “from approximately ten years ago,” there is “no evidence ... of his re-engagement in any illegal activities.” He adds that the “Board did not (and could not) point to any specific criminal behavior” in denying an award. In response, the Board contends that appellant has “argue[d] for a cramped interpretation of the statutory term, ‘contributed,’ ” and it rejects appellant’s claim that a victim contributes to his injuries, for purposes of the Act, only if the victim is found to have been involved in criminal activity at the time of injury.

The Board contends that “there is no [statutory] requirement that the contributory conduct consist of a specific act that occurs at the same time and location as the crime during which injuries are inflicted.” The Board does not specifically address appellant’s “proximate cause” argument. ⁶⁰ Statutory Provisions Preliminarily, this petition for judicial review requires us to determine the causation standard by which a victim’s conduct is found to have contributed to the infliction of his injuries. Crim. Proc. § 11-810 sets forth conditions for an award generally. Crim.

Proc. § 11 — 810(d) addresses a victim’s contributory conduct, and provides in pertinent part: § 11-810. (d)(l)(i) Except as provided under [a provision not relevant to this case], in considering a claim and in determining the amount of an award, the Board shall determine whether the victim’s conduct contributed to the infliction of the victim’s injury, and, if so, reduce the amount of the award or reject the claim. (3) A claimant may not receive an award if: (i) the victim initiated, consented to, provoked, or unreasonably failed to avoid a physical confrontation with the offender; or (ii) the victim was participating in a crime or delinquent act when the injury was inflicted. While we reserve our holding regarding the Board’s findings of fact for later in this opinion, we shall hold that the standard of proximate causation shall apply where the effect of a victim’s conduct on the infliction of his or her injuries is to be assessed pursuant to Crim.

Proc. § 11 — 810(d)(1)(i), the provision at issue here, and Crim. Proc. § 11 — 810(d)(3)(ii). We begin with an examination of the relevant statutory language. It is well-settled that, [i]n statutory interpretation, our primary goal is always to discern the legislative purpose, the ends to be accomplished, or the evils to be remedied by a particular provision, be it statutory, constitutional, or part of the Rules.

We begin our analysis by first looking to the normal, plain meaning of the language of the statute, reading the statute as a whole ⁶¹ to ensure that no word, clause, sentence or phrase is rendered surplusage, superfluous, meaningless or nugatory. If the language of the statute is clear and unambiguous, we need not look beyond the statute’s provisions, and our analysis ends. If, however, the language is subject to more than one interpretation, or when the language is not clear when it is part of a larger statutory scheme, it is ambiguous, and we endeavor to resolve that ambiguity by looking to the statute’s legislative history, case law, and statutory purpose, as well as the structure of the statute. Friedman v. Hannan, 412 Md. 328, 337 , 987 A.2d 60 (2010) (quoting People’s Insurance Counsel Div. v. Allstate Ins.

Co., 408 Md. 336, 351-52 , 969 A.2d 971 (2009) (citations omitted)). The Act does not define the term “contribute,” but its various provisions offer a statutory context for an inquiry into its meaning. Crim. Proc. § 11-808 sets forth the criteria for a claimant’s eligibility for an award, defining, for example, a “victim” or eligible “dependant,” extending eligibility to certain Maryland residents who are victims in other states, and explaining “who may file a claim.” Crim.

Proc. § 11-808(a)(c). A claimant’s eligibility is not unconditional, however, for the Act contains specific provisions that bar entitlement in certain circumstances where the victim’s conduct is responsible in some manner for the infliction of his injuries. Crim. Proc. § 11-808(a)(2) precludes an award to a “person who commits the crime or delinquent act that is the basis of a claim, or an accomplice!.]” Crim.

Proc. § 11-810 places additional conditions on a claimant’s eligibility, providing, inter alia, that certain conduct on the part of the victim would disqualify that person from obtaining an award in whole or in part. See Crim. Proc. § 11-810(d). Our concern in this case is with the application of Crim.

Proc. § 11-810(d), which in certain circumstances forecloses entitlement to benefits under the Act because of the victim’s conduct. Specific disqualifying acts are governed by Crim. Proc. § 11 — 810(d)(3)(i), which, as noted above, provides for a denial of benefits where the victim “initiated, consented to, provoked, or unreasonably failed to avoid a physical confronta ⁶² tion with the offender.” This section is similar to Crim. Proc. § 11-808(a)(2).

Neither provision, which addresses conduct directly applicable to the commission of the criminal act at the basis of the claim, applies on these facts. Crim. Proc. § 11 — 810(d)(3)(ii) forecloses entitlement where the victim “was participating in a crime or delinquent act when the injury was inflicted.” Citing Crim. Proc. § 11-810(d)(3)(ii), appellant contends that “there is no evidence that [he] was participating in a crime.” We need not address appellant’s argument with respect to Crim.

Proc. § 11— 810(d)(3)(ii), because Crim. Proc. § 11 — 810(d)(1)(i), the pertinent provision here, permits the Board to reject a claim if “the victim’s conduct contributed to the infliction of the victim’s injury.” This section addresses conduct generally, and it does not specify that such conduct be unlawful. Nor does it define the term “contributed” or offer guidance as to how a victim’s conduct renders him responsible in the infliction of the injuries so as to bar his entitlement to an award under the Act. Proximate Cause Appellant maintains that a victim’s conduct must be a proximate cause of his injuries in order for an award to be foreclosed. 6 We agree and explain.

The language of the Act as a whole, the context of its enactment, available legislative history, and Maryland cases that have interpreted provisions of the Act, do not reveal any legislative intent regarding the problem of gauging whether and how a victim’s conduct “contributed” to the infliction of his ⁶³ injury. 7 What is clear, however, is that a victim must be responsible for his or her actions, and where there is some nexus between the victim’s conduct and the “compensable” injury, the victim/claimant may forfeit an award in whole or in part. The question of whether a victim’s conduct must be a proximate cause of his injuries so as to foreclose an award under the Act appears to be a matter of first impression in Maryland. After reviewing decisions from sister jurisdictions under their respective victim’s compensation statutes, we shall conclude that a victim’s conduct must be a “proximate cause” of his injury before he would be disqualified from an award pursuant to Crim. Proc. §§ 11 — 810(d)(1)(i) and 11 — 810(d)(3)(ii). “Proximate causation is not a concept susceptible of precise definition.” Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687, 713 , 115 S.Ct. 2407 , 132 L.Ed.2d 597 (1995) (O’Connor, J., concurring).

In a case involving restitution, the Court of Appeals has noted that “tort scholars have described the ‘art’ of determining proximate cause,” and that there is “nothing in the entire field of law which has called forth more disagreement, or upon which the ⁶⁴ opinions are in such a welter of confusion.” Pete v. State, 384 Md. 47 , 60 n. 15, 862 A.2d 419 (2004) (citations and internal quotation marks omitted). In a negligence case, Judge McAuliffe stated for the Court in Atlantic Mutual Insurance Co. v. Kenney, 323 Md. 116, 127-28 , 591 A.2d 507 (1991): “In order to be a proximate cause, the negligence must be 1) a cause in fact, and 2) a legally cognizable cause.” As to the latter element, the Court emphasized the importance of the foreseeability of harm resulting from the actor’s negligence. Id. at 130 , 591 A.2d 507 (citing cases). More recently, Judge Raker elaborated on the issue of proximate cause: Legal cause and proximate cause has been widely discussed in cases and legal literature and has posed obstacles to recovery for victims for generations....

The principles have been set out, explored, explicated and expanded____It is a basic principle that “[njegligence is not actionable unless it is a proximate cause of the harm alleged.” ... Proximate cause “involves a conclusion that someone will be held legally responsible for the consequences of an act or omission.” ... To be a proximate cause for an injury, “the negligence must be 1) a cause in fact, and 2) a legally cognizable cause.” ... In other words, before liability may be imposed upon an actor, we require a certain relationship between the defendant’s conduct and the plaintiffs injuries.

The first step in the analysis to define that relationship is an examination of causation-in-fact to determine who or what caused an action. The second step is a legal analysis to determine who should pay for the harmful consequences of such an action. Pittway v. Collins, 409 Md. 218, 243-44 , 973 A.2d 771 (2009) (citations omitted). The Court of Appeals has also observed: Proximate cause ultimately involves a conclusion that someone will be held legally responsible for the consequences of an act or omission.

This determination is subject to considerations of fairness or social policy as well as mere causa ⁶⁵ tion. Thus, although an injury might not have occurred “but for” an antecedent act of the defendant, liability may not be imposed if for example the negligence of one person is merely passive and potential, while the