Marlin v. State

¹⁴⁰ HOLLANDER, Judge. Andre Marlin, a/k/a Kendrick Martin, appellant, appeared in the Circuit Court for Baltimore City on charges of attempted first degree murder and related offenses. Following a bench trial, the court found appellant guilty of first degree assault; use of a handgun in the commission of a crime of violence; reckless endangerment, and related offenses. 1 The court sentenced appellant to 10 years’ incarceration for first degree assault; a concurrent sentence of 5 years in prison, without the possibility of parole, for the handgun conviction; and a concurrent term of 5 years for reckless endangerment. The remaining convictions were merged for sentencing.

On appeal, appellant presents the following questions for our review: I. Was appellant improperly convicted on the basis of unsworn statements?

II

Did the trial court err in not merging reckless endangerment with first degree assault? For the reasons set forth below, we shall vacate the sentence for reckless endangerment, but otherwise affirm the judgments. FACTUAL BACKGROUND This case arises from events that occurred on January 4, 2006, when Derrick Williams was shot in the back. Detectives Ryan Guinn and Shawn Reiehenberg were among the police officers who responded to the scene of the shooting.

Williams was transported to the hospital by ambulance. Later that evening, after Williams was released, he was brought to the police station to make a statement. Because Williams was ¹⁴¹ “incoherent from the medication,” however, Detective Guinn sent him home. Williams contacted Detective Guinn on January 5, 2006, and provided a statement that day.

He told Detectives Guinn and Reichenberg that appellant was the person who shot him. Thereafter, Williams was shown a photographic array containing photos of six men, including appellant. According to the officers, Williams immediately identified appellant as the shooter. On the back of the sheet of photographs, Williams wrote: “This is the guy who shot me.

However, I am not going to Court, and if I do I am not going to said [sic] nothing.” Williams also provided a recorded statement, in which he again identified appellant as the shooter. But, Williams also stated: “If I go to court, if you all was to arrest Mr. Martin, I’m going to say that he ain’t do it and I don’t know nothing.” Detective Guinn conceded that, apart from Williams’s statements implicating appellant, no other evidence led to appellant as the shooter. The following colloquy occurred on cross-examination: [DEFENSE ATTORNEY]: So, you really don’t know exactly who shot this gentleman, Derrick Williams, do you? [DETECTIVE GUINN]: No. Williams testified that at about 7:45 p.m. on January 4, 2006, while he was trying to buy drugs, he was shot in the back. But, Williams claimed that he did not “remember” who shot him.

He also testified that he did not “know” appellant, although he might have seen him in “passing.” Williams identified his signature and handwriting on the back of the photo array, but he had no recollection of making any statements to the police. Williams explained that, at the time he was shot and when he spoke to the detectives, he was “strung out, real strung out” on cocaine, heroin, and alcohol, and was “out of it.” The following colloquy occurred on cross-examination: ¹⁴² [DEFENSE ATTORNEY]: So, under oath here today, sir, did Kendrick Martin shoot you? [WILLIAMS]: I don’t remember. [DEFENSE ATTORNEY]: Okay. [WILLIAMS]: I don’t remember who shot me. [DEFENSE ATTORNEY]: So, you — so you can’t say it was Kendrick Martin. [WILLIAMS]: I was — I was— [DEFENSE ATTORNEY]: Is that fair to say? [WILLIAMS]: I think it’s fair to say. I was so high at that time I couldn’t even see my own hand in front of my face. Detective Reichenberg testified after Williams.

In addition to the evidence discussed earlier, he claimed that Williams said he had been drinking, “but he didn’t say he was high,” despite having been asked that question. Moreover, the detective denied that Williams said he was shot while trying to buy drugs. Nevertheless, Detective Reichenberg conceded Williams’s pretrial statements were the only evidence against Mr. Martin. Williams’s medical records were admitted by stipulation.

They established that he suffered a gunshot wound on the date in question. The defense did not call any witnesses. In closing argument, the prosecutor stated, in part: The State does feel that this is a first degree assault case, at a minimum, due to the injuries of the victim. H* Your Honor, he made it very clear that Kendrick Martin is the man who shot him---- So, I think, Your Honor, that it is a first degree assault.

He does identify him. He picks him out in a photo array and says: “This is the guy who shot me.” Given the nature of his injuries, he was shot in the back area, which could have paralyzed him, quite honestly.... ¹⁴³ In response, the defense attorney said, in part: “I do not think that they’ve met their burden in any counts.” Further, he argued: [The police] don’t ask [Williams] why he was out there. They don’t even ask him why there would be any motivation for this young man to shoot him, whatsoever. They don’t have any other witnesses whatsoever to point to Kendrick Martin.

The only thing they have, Your Honor, is a witness who states very clearly that he was high both, at the time he was shot, and at the time in which he gave a statement. In rendering judgment, the trial judge said, in part: Here’s the problem for me, from the — looking at [t]he defense side of this case, is I generally tend to believe what a person says the first time is the truth. All the other nonsense that they come up "with at a later date is for some ulterior motive. Here we have a guy who actually tells us in advance what he’s going to do on the stand.

And, then, true to his word he comes in here and does it. I believe the first version. I find the defendant guilty beyond a reasonable doubt of first degree assault, reckless endangerment, use of a handgun in the commission of a crime of violence. Having said that, I also feel some sympathy for the defendant, because I get the sense there’s more going on between these two guys.

There’s something else happening here which nobody is telling me, right? And, I wouldn’t be amazed at all if he didn’t — he had no reason to shoot this guy, it was in the context of something else going on, and this guy may have been the poor fool standing there at the moment. The court proceeded to sentencing. 2 The defense attorney did not ask the court to merge any of the offenses for sentencing purposes. Additional facts will be provided as necessary to the discussion of the issues. ¹⁴⁴ DISCUSSION I. Appellant contends that he “was improperly convicted on the basis of unsworn statements.” However, he does not directly challenge the admission of Williams’s pretrial statements as substantive evidence.

The State casts its response in terms of sufficiency of the evidence and relies on the admissibility of Williams’s prior inconsistent statements as substantive evidence. It asserts: “The evidence was sufficient to sustain Marlin’s convictions where the trial court admitted, without any objection from defense counsel, the victim’s prior inconsistent statement identifying Marlin as the person who shot him on January 4,-2006.” According to the State, appellant has waived his complaint, because he failed to object to the admission of Williams’s pretrial statements, which were offered as substantive evidence. Alternatively, even if preserved, the State maintains that Williams’s statements were properly admitted to prove appellant’s criminal agency. Preliminarily, with respect to any underlying challenge to the admission of Williams’s pretrial statements, we agree with the State’s waiver contention, because appellant failed to object to the admission of the statements as substantive evidence.

To the contrary, appellant’s counsel affirmatively noted that he had no objection. See Md. Rule 4-323(a) (stating that objections to evidence must be made as soon as the challenged evidence is offered or as soon as the grounds for objection become apparent); Md. Rule 8-131(a) (providing that the appellate court will not ordinarily address issues not raised in or decided by the trial court). Alternatively, the statements were properly admitted as prior inconsistent statements, in accordance with the landmark case of Nance v. State, 331 Md. 549, 560-61 , 629 A.2d 633 (1993) and Maryland Rule 5-802.1. We explain. ¹⁴⁵ In Nance , the Court of Appeals “carved out an important exception to the general rule against the admissibility of prior inconsistent statements as substantive evidence.” Stewart v. State, 342 Md. 230, 237 , 674 A.2d 944 (1996) (explaining Nance).

Departing from the longstanding prohibition against use of a witness’s prior inconsistent statement as substantive evidence, the Court opted for a limited version of the “modern rule,” permitting prior inconsistent statements signed or adopted by the declarant to be admitted as probative evidence so long as the declarant is available for cross-examination at trial. Nance, 331 Md. at 565, 569 , 629 A.2d 633 . The Nance Court held, inter alia, that the factual portion of a witness’s prior signed statement is admissible at trial as substantive evidence when inconsistent with the witness’s in-court testimony, so long as the witness is subject to cross-examination concerning the statement. Id. at 570-71 , 629 A.2d 633 ; see Tyler v. State, 342 Md. 766, 775 , 679 A.2d 1127 (1996); Stewart, 342 Md. at 237 , 674 A.2d 944 ; Makell v. State, 104 Md.App. 334, 339 , 656 A.2d 348 (1995).

Moreover, it ruled that “a court may admit, as substantive proof, evidence of a third party testifying as to an extrajudicial identification by an eyewitness when made under circumstances precluding the suspicion of unfairness or unreliability, where the out-of-court declarant is present at trial and subject to cross-examination.” Nance, 331 Md. at 560 , 629 A.2d 633 . Maryland Rule 5-802.1 subsequently codified the Nance decision. It provides, in part: Rule 5-802.1. Hearsay exceptions — Prior statements by witnesses.

The following statements previously made by a witness who testifies at the trial or hearing and who is subject to cross-examination concerning the statement are not excluded by the hearsay rule: (a) A statement that is inconsistent with the declarant’s testimony, if the statement was (1) given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding or in a deposition; (2) reduced to writing and was signed by the declarant; or (3) recorded in substantially ¹⁴⁶ verbatim fashion by stenographic or electronic means contemporaneously with the making of the statement; * * * (c) A statement that is one of identification of a person made after perceiving the person; In this case, Detective Guinn recounted the circumstances of William’s signature and written statement on the back of the photo array, in which Williams indicated that appellant was the man who shot him. The photo array was later admitted, without objection. Detective Guinn also discussed the audio recording provided by Williams on January 5, 2006, which the State subsequently played during Williams’s testimony. The recorded statement was also admitted into evidence, without objection.

Detective Guinn’s testimony was corroborated by Detective Reichenberg. Williams was called by the State, and took an oath to tell the truth. As noted, he testified on direct examination in a manner that was inconsistent with his prior statements to the police. He was then subject to cross-examination.

In particular, Williams said that he did not remember who shot him, and that he did not know appellant. Yet, in Williams’s first pretrial statement to the police, he named appellant as his assailant. He was then shown appellant’s picture in a photo array and identified appellant as the person who shot him. Clearly, Williams’s first statement of identification was inconsistent with his trial testimony.

Therefore, it was admissible as substantive evidence under Nance and Maryland Rule 5-802.1(c). Similarly, in Williams’s second pretrial statement to the police, an audio recording, he again implicated appellant with respect to the events of January 4, 2006. That statement was also inconsistent with Williams’s trial testimony. As a verbatim recording, it was admissible under Maryland Rule 5-802.1(a)(3).

Our view as to admissibility is not altered merely because the State knew ahead of time that Williams would not implicate appellant at trial. See Stewart, 342 Md. at 240-44 , 674 A.2d 944 (holding that the prior inconsistent statement of a ¹⁴⁷ witness was admissible even though the prosecution knew in advance that the witness intended to repudiate his prior statement). The pretrial statements were also admissible, despite Williams’s claim that he was under the influence of drugs when he made them. See Nance, supra, 331 Md. at 573 , 629 A.2d 633 (admitting pretrial statement of witness who claimed to have been intoxicated by drugs at the time the statement was made); Makell, 104 Md.App. at 339, 346-48 , 656 A.2d 348 (admitting pretrial identification of the sole witness who claimed a total loss of memory at trial due to his “continuous multi-year drug stupor.”) In sum, Williams’s pretrial identifications of appellant in the photo array and in his recorded statement (State’s Exhibits 4 and 5, respectively) met the requirements of Nance and Rule 5-802.1.

Therefore, they were properly admitted as substantive evidence of appellant’s criminal agency.

II

We turn to consider appellant’s contention that Williams’s unsworn pretrial statements were the only evidence admitted at trial to prove appellant’s criminal agency, and therefore appellant was wrongfully convicted on the basis of unsworn statements. In particular, appellant contends that because Williams testified that he was unable to remember the events of January 4, 2006, the only evidence of appellant’s culpability was contained in the unsworn written and recorded statements that Williams gave to the police on January 5, 2006. Appellant posits: Some jurisdictions have taken the position that a conviction cannot rest on prior inconsistent unsworn statements .... Other courts have unreflectively treated such statements or [sic] sufficient evidence.

State v. Mancine[, 124 N.J. 232 ], 590 A.2d 1107 ([N.J.] 1991). A third intermediate position has been taken by some courts. Such a statement may be sufficient if it “is generally corroborated ¹⁴⁸ and its reliability is supported by the circumstances under which it was given.” Id. at 1117. The latter approach is consistent with the Court of Appeals holding in Bedford v. State, 293 Md. 172 , 443 A.2d 78 (1982).

According to appellant, his convictions cannot stand under Bedford . In our view, appellant’s reliance on Bedford is misplaced. In Bedford , an elderly couple who were returning to their home were confronted by a man who robbed and beat them and then ransacked their house. Id. at 173 , 443 A.2d 78 .

The attacker remained in the victims’ home for over an hour, and was within their sight for about half an hour. Id. at 173-74 , 443 A.2d 78 . After the attack, both victims participated in creating a composite sketch of the robber. Id. at 174 , 443 A.2d 78 .

They also identified Bedford as their attacker from a photo array. Id. at 174 , 443 A.2d 78 . But, several months later, at a motions hearing, the victims were unable to identify Bedford. Id. at 174 , 443 A.2d 78 .

They were not asked to attempt an identification in the presence of the jury at trial. Id. at 174 , 443 A.2d 78 . The jury found Bedford guilty of multiple offenses, including two counts of robbery with a deadly weapon and one count of daytime housebreaking. Id. at 173 , 443 A.2d 78 .

On appeal, Bedford asserted that the victims’ extrajudicial identification, which was not confirmed by an identification at trial, and which lacked corroborating evidence, was insufficient to sustain his conviction. Bedford considered the decision of the Supreme Court of California in People v. Gould, 54 Cal.2d 621 , 7 Cal.Rptr. 273 , 354 P.2d 865 (1960). 3 Quoting Gould, 7 Cal.Rptr. 273 , 354 P.2d at 867 (internal citations omitted), the Bedford Court stated, 293 Md. at 177-78 , 443 A.2d 78 : ¹⁴⁹ “Evidence of an extrajudicial [photographic] identification is admissible, not only to corroborate an identification made at the trial, but as independent evidence of identity. Unlike other testimony that cannot be corroborated by proof of prior consistent statements unless it is first impeached, evidence of an extrajudicial identification is admitted regardless of whether the testimonial identification is impeached, because the earlier identification has greater probative value than an identification made in the courtroom after the suggestions of others and the circumstances of the trial may have intervened to create a fancied recognition in the witness’ mind. The failure of the witness to repeat the extrajudicial identification in court does not destroy its probative value, for such failure may be explained by loss of memory or other circumstances.

The extrajudicial identification tends to connect the defendant with the crime, and the principal danger of admitting hearsay evidence is not present since the witness is available at the trial for cross-examination.” The Gould Court concluded, however, that an extrajudicial photographic identification, standing alone, was insufficient evidence of criminal agency to justify a conviction. Gould said, 7 Cal.Rptr. 273 , 354 P.2d at 870: “An extra-judicial identification that cannot be confirmed by an identification at the trial is insufficient to sustain a conviction in the absence of other evidence tending to connect the defendant with the crime.” In a four to three decision, the Court of Appeals rejected Bedford’s argument that Maryland should adopt a standard similar to that iterated in Gould. Indeed, the Bedford majority characterized Gould as “a puzzling case,” 293 Md. at 180 n. 2, 443 A.2d 78 , and observed, id. at 179 , 443 A.2d 78 : “Gould is the only decision of a court of last resort which either the parties or the Court have been able to locate holding that an extrajudicial photographic identification is insufficient evidence of criminal agency to warrant conviction.” ¹⁵⁰ Further, the Court noted that the holding in Gould had been previously considered and rejected by the Court of Special Appeals in Cousins v. State, 18 Md.App. 552, 556-59 , 308 A.2d 692 , cert. denied, 270 Md. 738 (1973). The Bedford Court also pointed to its own holding in Johnson v. State, 237 Md. 283 , 206 A.2d 138 (1965), involving an identification at a line-up.

In Johnson , the Court stated, id. at 291 , 206 A.2d 138 : We hold therefore that where, as here, the identifying victims or eyewitnesses were present and subject to cross-examination, the testimony of the police officer as to the extrajudicial identifications was admissible. Even where witnesses do not make a courtroom identification of the indictees, an extrajudicial identification is admissible as evidence over an objection that it is not the best evidence. State v. Simmons, 63 Wash.2d 17 , 385 P.2d 389 (1963). We note that the Simmons case cited Judy v. State, [ 218 Md. 168 , 146 A.2d 29 (1958)], for the proposition that the first identification is usually the best identification.

For other cases that have admitted evidence of extrajudicial identifications even where no positive courtroom identification was made, see People v. Gould, 54 Cal.2d 621 , 7 Cal.Rptr. 273 , 354 P.2d 865 (1960) and State v. Wilson, 38 Wash.2d 593 , 231 P.2d 288 (1951), cert. den. 342 U.S. 855 , 72 S.Ct. 81 , 96 L.Ed. 644 (1951) and 343 U.S. 950 , 72 S.Ct. 1044 , 96 L.Ed. 1352 (1952). Thus, the Bedford majority held that “an extrajudicial photographic identification of an accused is sufficient evidence of his criminal agency to support a conviction, notwithstanding the fact that the victim may be unable to identify him at the time of trial.” Id. at 185 , 443 A.2d 78 . Yet, according to appellant, “[t]here can be no doubt that Bedford stands on the border of sufficiency.” 4 ¹⁵¹ In support of his position, appellant notes that in Bedford the two pretrial identifications were made by witnesses who helped to create a composite of the assailant. “Of at least equal importance,” asserts appellant, “was the fact that the good faith and integrity of the witnesses was never questioned.” In his view, “[t]his case is far different. Williams immediately called into question his identification of Appellant when he said that he would not make an identification in court.” In addition, appellant contends that the case sub judice “represents the reverse of the situation presented in Nance,” 331 Md. 549 , 629 A.2d 633 , in which “the Court was concerned with ‘turncoat’ witnesses and fairness to the State.” Appellant elaborates: Williams was not a turncoat witness: from the outset he staked out his position that he would incriminate Appellant but not swear to anything.

If he were afraid he would not have identified Appellant.... The more likely scenario is unfairness to the defendant by a victim who is afraid of the real culprit but shifts blame to another while never risking perjury. Appellant overlooks that opinions assented to by a majority of the Court, unless subsequently overruled in another case or by statute, are the law, and must be followed by this Court. Therefore, despite appellant’s preference for the dissent in Bedford , it does not constitute a binding precedent upon this Court.

Moreover, the majority opinion in Bedford later served as a basis for the Court’s decision in Nance , in which the Court said: “An extrajudicial identification is sufficient evidence of criminal agency to sustain a conviction, even though the declarant is unable to identify the accused at trial.” Nance, 331 Md. at 561 , 629 A.2d 633 . Similarly, this Court ¹⁵² determined in Belton v. State, 152 Md.App. 623, 639 , 833 A.2d 54 , cert. denied, 378 Md. 617 , 837 A.2d 928 (2003), that a prior inconsistent statement identifying an assailant was sufficient to sustain the defendant’s convictions. 5 Thus, with some minor modifications, the majority opinion in Bedford has become solidly embedded in the law of Maryland. Furthermore, while we do not dispute that the witnesses in Bedford were possessed of admirable qualities such as good faith and integrity, we do not agree that these qualities, or the lack thereof, were of primary importance, either in the majority opinion in Bedford or in subsequent cases. See, e.g., Nance, supra, 331 Md. at 557 , 629 A.2d 633 (witness was a habitual drug user); Makell, 104 Md.App. at 346-48 , 656 A.2d 348 (same).

Indeed, we are unaware of any requirement that a person must have led a blameless life in order to qualify as a trial witness. Appellant’s reliance on Dorsey v. State, 356 Md. 324 , 739 A.2d 41 (1999), to support his claim that he was improperly convicted solely on the basis of unsworn statements, is also unavailing. In Dorsey , the Court stated, id. at 353 , 739 A.2d 41 : Except for cases tried on agreed statements of facts, defendants pleading not guilty “ ‘should not be allowed to be convicted on the basis of unsworn testimony.’ ” Bradley v. State, 333 Md. 593 , 602 n. 4, 636 A.2d 999 (1994) (quoting United States v. Morlang, 531 F.2d 183, 190 (4th Cir.1975)). See Bridges v. Wixon, 326 U.S. 135, 153-54 , 65 S.Ct. 1443 , 89 L.Ed. 2103 (1945) (to “allow men to be convicted on unsworn testimony of witnesses [is] a practice which runs counter to the notions of fairness on which our legal system is founded”); United States v. Hawkins, 76 F.3d 545, 550-51 (4th Cir.1996) (criminal contempt conviction vacated because ¹⁵³ trial judge relied on the unsworn “testimony” of an Assistant United States Attorney).

Dorsey involved two cases that were consolidated on appeal. Mr. Craft, one of the appellants, was tried for criminal contempt for failure to pay child support. At trial, however, no sworn testimony was taken. Id. at 353 , 739 A.2d 41 .

Rather, Craft was convicted on the basis of a proffer from trial counsel and the unsworn statement of a child support enforcement agency representative. Id. at 337-40 , 739 A.2d 41 . This case differs markedly from Dorsey . Williams’s lack of recollection about his pretrial photo identification of Marlin and his prior recorded statement identifying Marlin as the person who shot him constituted prior inconsistent statements of Williams that were admissible under Nance, 331 Md. at 572-74 , 629 A.2d 633 , and Rule 5-802.1.

Notably, two police witnesses also testified under oath and corroborated that Williams made the pretrial identifications that he was unable to recall at trial. It is axiomatic that weighing the credibility of witnesses and resolving any conflicts in the evidence are tasks properly assigned to the factfinder, State v. Smith, 374 Md. 527, 533-34 , 823 A.2d 664 (2003), and shall not be undertaken by an appellate court upon review. Owens v. State, 170 Md.App. 35, 101-02 , 906 A.2d 989 (2006), affd, 399 Md. 388 , 924 A.2d 1072 (2007). Further, it is well established in Maryland that the testimony of even a single eyewitness, if believed, is sufficient evidence to support a conviction.

See, e.g., Walters v. State, 242 Md. 235, 237-38 , 218 A.2d 678 (1966) (stating that “[ijdentification by the victim is ample evidence to sustain a conviction”). See also Md. Rule 8-131(c). 6 ¹⁵⁴ We readily conclude that the evidence was sufficient to convince a rational fact finder, beyond a reasonable doubt, that appellant was guilty of the crimes of which he was convicted.

III

Appellant contends: “The trial court erred in not merging reckless endangerment with first degree assault.” In support of his position, appellant relies solely on Williams v. State, 100 Md.App. 468 , 641 A.2d 990 (1994). 7 Asserting that “Marlin is wrong,” the State maintains that appellant’s reliance on Williams is “misplaced.” It points out that “first degree assault is a ‘multi-purpose criminal statute,’ as it may be proved by alternative theories,” and suggests that, in analyzing the issue of merger, we must consider “the alternative elements relevant to the case.” We begin with a review of the relevant statutes. Section 3-201(b) of the Criminal Law (“C.L.”) Article of the Md.Code (2002) defines “assault” as “the crimes of assault, battery, and assault and battery, which retain their judicially determined meanings.” C.L. § 3-202 states, in part: § 3-202. Assault in the first degree. (a) Prohibited. — (1) A person may not intentionally cause or attempt to cause serious physical injury to another.

(2) A person may not commit an assault with a firearm _ _ [ 8 ] C.L. § 3-204 provides, in part: Reckless endangerment. ¹⁵⁵ (a) Prohibited. — A person may not recklessly: (1) engage in conduct that creates a substantial risk of death or serious physical injury to another; or (2) discharge a firearm from a motor vehicle in a manner that creates a substantial risk of death or serious physical injury to another. The crime of reckless endangerment is “purely a statutory crime.” Holbrook v. State, 364 Md. 354, 365 , 772 A.2d 1240 (2001). It was first enacted in Maryland by 1989 Md. Laws, Ch. 469, and took effect on July 1, 1989. Id.

It was initially codified in Md.Code (1957, 1992 Repl.Vol.), Art. 27, § 120. 9 Effective October 1, 1996, the General Assembly repealed Art. 27, § 120 and enacted Art. 27, § 12A-2 of the Md.Code (1957, 1996 RephVol.), within a new subtitle, “Assault.” Id. 10 The text of Art. 27, § 12A-2(a)(l) contained the same text as that previously found in Art. 27, § 120. Id. at 366 n. 6, 772 A.2d 1240 . As noted, the reckless endangerment statute is now found in C.L. § 3-204. As C.L. § 3-204(a)(l) reflects, that text is substantively the same as the predecessor statutes.

Reckless endangerment “is quintessentially an inchoate crime.” Williams, 100 Md.App. at 480 , 641 A.2d 990 . It was “designed to punish potentially harmful conduct even ¹⁵⁶ under those fortuitous circumstances where no harm results.” Id. See State v. Pagotto, 361 Md. 528, 549 , 762 A.2d 97 (2000) (stating that the reckless endangerment statute is aimed at deterring the commission of potentially harmful conduct); State v. Albrecht, 336 Md. 475, 500-01 , 649 A.2d 336 (1994) (recognizing that the reckless endangerment statute “is aimed at deterring the commission of potentially harmful conduct before an injury or death occurs”); Minor v. State, 326 Md. 436, 442 , 605 A.2d 138 (1992) (“It is the reckless conduct and not the harm caused by the conduct, if any, which the statute was intended to criminalize”). The elements of the offense were set forth in Jones v. State, 357 Md. 408, 427 , 745 A.2d 396 (2000): “(1) that the defendant is engaged in conduct that created a substantial risk of death or serious physical injury to another; and (2) that a reasonable person would not have engaged in that conduct; (3) that the defendant acted recklessly.” For the crime of reckless endangerment, mens rea is determined on an objective basis.

See Jones, 357 Md. at 427 , 745 A.2d 396 ; Minor, 326 Md. at 443 , 605 A.2d 138 . In Holbrook , the Court explained, 364 Md. at 367 , 772 A.2d 1240 (quoting Pagotto, 361 Md. at 549 , 762 A.2d 97 ): “[G]uilt under the statute does not depend upon whether the accused intended that his reckless conduct create a substantial risk of death or serious injury to another. The test is whether the appellant’s misconduct, viewed objectively, was so reckless as to constitute a gross departure from the standard of conduct that a law-abiding person would observe, and thereby create the substantial risk that the statute was designed to punish.” Writing for the Court in Williams, 100 Md.App. at 481 , 641 A.2d 990 , Judge Moylan explained: “At the actus reus level, [reckless endangerment] is one element short of consummated harm. At the mens rea level, it is one element short of the specific intent necessary for either an attempt or for one of the aggravated assaults.” Further, he wrote, id. at 476-77 , 641 A.2d 990 : ¹⁵⁷ To be guilty of reckless endangerment, the defendant must be shown to have possessed nothing less than a reckless disregard of the consequences of his life-threatening act.

He may, however, be shown to have possessed a more blameworthy mens rea, such as an intent to maim, but that excess culpability will be simply surplusage as far as the reckless endangerment charge is concerned. It certainly does not operate to exculpate him of the reckless endangerment. The Williams Court also said, id. at 495 , 641 A.2d 990 : The actus reus of the crime of reckless endangerment is “conduct that creates a substantial risk of death or serious physical injury to another person.” Md. Ann.Code art. 27, § 120(a) (1992)____ [I]t is undisputed that the actus reus of creating a substantial risk is to be measured objectively, not subjectively. The mens rea of the defendant, although indispensable to an ultimate finding of guilt, has nothing to do with the establishment of the actus reus.

Whether the conduct in issue has, indeed, created a substantial risk of death or serious physical injury is an issue that will be assessed objectively on the basis of the physical evidence in the case. Cf. Robinson v. State, 307 Md. 738, 745 , 517 A.2d 94 (1986) (recognizing, in regard to depraved heart murder, that the crime may be committed “absent intent to injure,” but rejecting the contention that “the crime is not committed if there is an intent to injure.... The terms, “recklessness’ or ‘indifference’ ... do not preclude an act of intentional injury”).

We next consider the offense of assault. As noted, in 1996 the Legislature enacted a new statutory scheme for assault, and abrogated the common law crimes of assault and battery. Christian v. State, 405 Md. 306, 317-18 , 951 A.2d 832 (2008). See also Robinson v. State, 353 Md. 683, 694 , 728 A.2d 698 (1999) (recognizing that the repeal of the existing assault provisions in 1996, coupled with the enactment of a new assault statute, “represent the entire subject matter of the law of assault and battery in Maryland, and as such, abrogate the ¹⁵⁸ common law____”) The revised statutory scheme for assault “subsumed all previous statutory assault provisions as well as the common law into a single scheme and established a two-tiered regimen.” Id.

With respect to the statutory assault scheme, the Court explained in Christian, 405 Md. at 320 , 951 A.2d 832 : By its terms, viewed in the context of the applicable definition of “serious physical injury,” the first