Molter v. State

CHARLES E. MOYLAN, JR. (Retired, Specially Assigned), J. Suppose that Scotland Yard, in late 1888, could have established that an otherwise innocuous denizen of London’s White-chapel neighborhood had been in the unexplained possession of a locket worn no more than two or three days earlier by one of the victims of Jack the Ripper. How far might the Crown have gone with the resulting inference? It is just such an inference, and the reach of its inferential potency, that is the primary focus of this appeal.

Contentions, Good and Bad The appellant, Brett Russell Molter, was convicted in the Circuit Court for Harford County by a jury, presided over by Judge Emory A. Plitt, Jr., of first-degree burglary and theft of goods of the value of $500 or more. On appeal, he raises five questions: 1. Was the evidence legally sufficient to support his conviction for first-degree burglary? ¹⁶⁰ 2. Did Judge Plitt erroneously rule that he could not impeach a State’s witness with evidence of that witness’s probation before judgment? 3.

Did Judge Plitt erroneously deny his motion for a mistrial? 4. Did the prosecutor’s .comments during opening statement and closing argument prejudice his right to a fair trial? and 5. Did Judge Plitt erroneously deny him his right to put on before the jury a simple demonstration? Legal Sufficiency of Proof of Burglary The theft in this case occurred in the course of a burglary.

The appellant does not challenge his conviction for theft. His contention is only that the evidence was not legally sufficient to support the conviction for first-degree burglary. The victims of the combined theft/burglary were Eric Eisenrauch and his live-in girlfriend, Amy Batehellor, who lived together in a two-story house in Joppa, Maryland. The burglary (and theft) occurred while Eisenrauch and Ms. Batehellor were spending a weekend in New York.

The window of- opportunity for an unimpeded burglary was one of two days and a few hours between when the two left to drive to New York on Saturday, April 18, 2009, and when they returned to their home at approximately 2 P.M. on Monday, April 20, 2009. When the two arrived home, they observed that the back door óf the house had been broken open. They walked inside and found that the house had been ransacked. Deputy First Class William Middleton responded to the scene at 2:50 P.M. and observed that the side door had been forcibly opened.

Inside the house, he noted that the “main evidence of ransacking” was in the bedroom and the closets. The appellant’s challenge to the burglary conviction was not with respect to the proof of the corpus delicti, but only to the proof of his criminal agency. ¹⁶¹ The First Strand in the Web Eisenraueh testified that, before leaving for New York, he had told two people about his impending trip: 1) his business partner, Keith Geiser; and 2) the appellant. Eisenraueh and the appellant had know each other for 20 years (since they had both been in the 6th grade together) and were, prior to April of 2009, very good friends. Eisenraueh described the appellant as a good handyman who had worked for him on various projects over the years.

The knowledge that the homeowners would not be home is far from being proof of guilt, but it is a helpful clue. And a clue need only be a clue. Presence At The Crime Scene In addition to his having knowledge that the house would be unoccupied over that weekend, the appellant was also observed at the scene during the critical window of opportunity by Paul Haye, a long-term acquaintance of both the appellant and Eisenraueh. Haye testified that on Saturday evening, April 18, 2009, he was visiting a friend who lives down the road from the Eisenraueh house.

At some time between 5:00 P.M. and 8:00 P.M. that evening, but while the sun was still out, Haye was driving on Joppa Farm Road and turned left onto the street where Eisenraueh lived. He happened to see the appellant, whom he knew, standing in front of the Eisen-rauch house but had no idea what he was doing there. Haye further testified that the appellant then walked toward the side door, the door through which the forced entry into the house was made. In seeking to devalue this testimony placing him at or near the crime scene, the appellant, it would seem, “doth protest too much:” “The only evidence that the State presented suggesting that Mr. Molter [the appellant] was ever anywhere near Mr. Eisenrauch’s house at any point during the weekend in question was the incredible testimony of Mr. Haye.” (Emphasis supplied).

The persuasiveness of evidence may depend upon the credibility of the witness, but its legal sufficiency does not. In ¹⁶² assessing the legal sufficiency of the evidence, of course, it is not our prerogative to evaluate the credibility of a witness. That is exclusively the job of the fact-finding jurors. State v. Smith, 374 Md. 527, 533-35 , 823 A.2d 664 (2003); Pinkney v. State, 151 Md.App. 311, 325-29 , 827 A.2d 124 (2003).

Inevitably, inquisitive jurors may ask themselves, “Why was the appellant at that particular place at that particular time?” They will then proceed to answer the question for themselves, particularly in the total absence of either denial or explanation by the defense. Inquisitive fact finders might suppose that no explanation was forthcoming because there was no innocent explanation. That, of course, is what circumstantial evidence is all about. A particular circumstance may not be sufficient proof of guilt unto itself, but it may nonetheless be a strand in an emerging web of proof.

A Dispositive Inference In terms of proof of the appellant’s guilt, the clincher was the inference, from his unexplained possession of recently stolen goods, that he was the thief of those stolen goods. It appears that the first reference by the Court of Appeals to this permitted inference of guilt that fact finders may draw from the unexplained possession of recently stolen goods was in Debinski v. State, 194 Md. 355, 360 , 71 A.2d 460 (1950): The law is clear that recent possession of stolen goods is evidence of guilt of the possessor and casts the burden on the .possessor of such stolen goods to give a reasonable explanation of how he came into its possession. “It has long been a well established rule of evidence in a criminal charge of larceny that recent possession of stolen goods gives rise to a presumption that the possessor is the thief.” United States v. Washington, 69 F.Supp. 143, 147 (1946), and authorities there cited. That precedent has been consistently followed for the intervening 61 years. Felkner v. State, 218 Md. 300, 305 , 146 A.2d 424 (1958); Butz v. State, 221 Md. 68, 77-78 , 156 A.2d 423 (1959); Glaros v. State, 223 Md. 272, 280 , 164 A.2d 461 (1960); ¹⁶³ Lewis v. State, 225 Md. 474, 475-76 , 171 A.2d 244 (1961); Byrd v. State, 229 Md. 148 , 182 A.2d 47 (1962); Stapf v. State, 230 Md. 106, 108 , 185 A.2d 496 (1962); Cason v. State, 230 Md. 356, 358 , 187 A.2d 103 (1963); Brooks v. State, 235 Md. 23 , 200 A.2d 177 (1964); Curry v. State, 235 Md. 378 , 201 A.2d 792 (1964); McCray v. State, 236 Md. 9 , 202 A.2d 320 (1964); Bey v. State, 237 Md. 627 , 206 A.2d 559 (1965); Anglin v. State, 244 Md. 652 , 224 A.2d 668 (1966).

By the time of Brewer v. Mele, 267 Md. 437 , 298 A.2d 156 (1972), the Court of Appeals had cleaned up the somewhat dated language of Debinski v. State in two minor respects. Instead of speaking of “the recent possession of stolen goods” it more carefully spoke of “the possession of recently stolen goods.” Instead of a legal presumption that the possessor was the thief, it more carefully referred to “the permitted inference of fact” that the possessor was the thief. It never was a presumption, of course. It was simply the case that our appellate analysis in 1950 was not yet up to making the nuanced distinction.

As of Brewer v. Mele, however, the language was more precise: We have long and consistently held that exclusive possession of recently stolen goods, absent a satisfactory explanation, permits the drawing of an inference of fact strong enough to sustain a conviction that the possessor was the thief. 267 Md. at 449 , 298 A.2d 156 (emphasis supplied). The permitted inference is more than a strand; it is proof of guilt that may stand alone. See also Cross v. State, 282 Md. 468, 480 , 386 A.2d 757 (1978); Grant v. State, 318 Md. 672, 680-81 , 569 A.2d 1237 (1990); Smith v. State, 367 Md. 348, 359 , 787 A.2d 152 (2001). All necessary elements for the permitted inference were in place in this case.

Both Eisenrauch and Ms. Batchellor had furnished the police with a lengthy and detailed description of items that had been stolen in the course of the burglary. In a search of the appellant’s car on Monday, April 27, 2009, the police recovered from the trunk of the car no less than six of ¹⁶⁴ the items that had been taken in the course of the burglary. Ms. Batchellor identified 1) a Dooney and Bourke purse; 2) a Louis Vuitton purse; 3) a Breitling watch box; 4) a black canvas tool bag; and 5) a silver necklace. Eisenrauch, in addition, identified a Sharp video camera.

All of those items had been described to the police in detail when the police first responded to the crime scene. How Recent Is “Recently”? “Recently stolen” is a relative term that cannot be pinned down with mathematical precision. In this case it was established that the appellant was in possession on April 27, 2009 of goods that had been stolen between April 18 and April 20, 2009, some seven to nine days earlier. Does that properly qualify as having been “recently stolen?” It unquestionably does.

In the archetypical case of Debinski v. State, the lapse of time between the original theft and the subsequent possession was nine days. The Court of Appeals, 194 Md. at 359-60 , 71 A.2d 460 , held, “[W]e do say that an article in one’s possession nine days after it was stolen is a recent possession.” In Butz v. State, the Court of Appeals, 221 Md. at 77 , 156 A.2d 423 , dealt with lapses of nine and fourteen days: It will be noted that the testimony disclosed that he was in possession of [stolen articles] approximately fourteen days after the first burglary and about nine days after the ..second. The appellant claims this possession is too remote from the date of the burglaries to constitute “recent” possession. ... In the instant case, we again decline to set up “a period of limitation” ... but have no hesitation in holding that the defendant’s possession ... of the articles taken from the Compion and Konski residences was “recent” for the purposes of the rule being considered.

(Emphasis supplied). In Cason v. State, 230 Md. at 358, 187 A.2d 103 , the Court of Appeals went significantly further: ¹⁶⁵ The lapse of something over four months of time, under the circumstances of this case, was insufficient to destroy the probative effect that the trier of facts was entitled, to give to the “recent” possession of the stolen property by the accused, in the absence of a reasonable explanation of his possession. (Emphasis supplied). In Anglin v. State, 1 Md.App. 85 , 227 A.2d 364 (1967), cert. denied, 246 Md. 755 (1967), Judge Orth wrote for this Court, in affirming two separate burglary convictions, that respective time lapses of one month and six months between the possession and two original larcenies did not vitiate the potency of the inferences: We feel, under the circumstance of this case, the possession was “recent” within the contemplation of the rule. 1 Md.App. at 93 , 227 A.2d 364 (emphasis supplied).

If some of these time periods seem inordinately long for the original theft to be deemed “recent,” it must be remembered that these were legal holdings and not findings of fact. The caselaw never said that the events were necessarily recent. It simply said that fact finders might reasonably deem them to be so. This is not to say, moreover, that the passage of time between the possession and the original theft may not have a debilitating effect on the inference.

Long before the point where the drawing of the inference might be prohibited, as a matter of law, the length of the interval may well have weakened the likelihood that fact finders, in their discretion, will choose to draw the inference, as a matter of fact. Short of some outside limit not yet established by the caselaw, however, the effect of attenuation remains in the province of fact-finding rather than in that of legal sufficiency review. It is simply in the nature of the respective standards that an event may cease to be recent, as a matter of fact, long before it necessarily has ceased to be recent, as a matter of law. In this case, the goods recovered from the trunk of the appellant’s car were “recently stolen” within the contemplation ¹⁶⁶ of the rule, and the inference that he was the thief was clearly permissible.

Defense Failure to Offer an Explanation Is At Its Own Peril What eight very specific items taken in a burglary were doing in the trunk of the appellant’s automobile between seven and nine days later was never explained by the defense. It did make a half-hearted attempt with respect to one of the purses but offered absolutely nothing with respect to any of the other items of stolen property. The only defense witness was the appellant’s mother. She testified that she thought that one of the purses in the trunk had earlier been given by Amy Batchellor as a gift to the appellant’s girlfriend, Jill Hamilton.

She did not testify that she had ever seen the transfer. Jill Hamilton was never called as a witness. The impact of the defense’s failure even to try to explain why the stolen articles were in the appellant’s automobile would have been overwhelming. The inference that he was, therefore, the thief is an inference in this case of almost irresistible potency.

In Anglin v. State, 244 Md. 652, 662-63 , 224 A.2d 668 (1966), Chief Judge Hammond explained that the adverse effect of the tactical decision of the defense not to counter the State’s evidence by offering some explanation for the possession of recently stolen goods does not impinge on a defendant’s Fifth Amendment privilege against compelled self-incrimination. In a sense, all evidence of guilt puts some tactical pressure on the defense to respbnd and the jurors are not blind to what responses are and are not forthcoming. Anglin’s contention that his failure to take the stand was used to or did incriminate him will not stand analysis. The constitutional prohibition against the use in any way by counsel or the trial court of the failure of the accused to testify is to prevent failure of or a deficiency in the State’s case from being supplied or supplemented in any way directly or inferentially by the compelled testimony of the ¹⁶⁷ accused.

Here the State’s case offered prima facie evidence of Anglin’s having burglarized the Weiss house by showing that soon after the burglary he had exclusive possession of an article stolen from that house, a possession that, if unexplained, permitted an inference of fact that Anglin had broken into the house and stolen the article. The trial judge showed in his dialogue with Anglin that he appreciated that Anglin’s decision not to testify added nothing to the State’s case and could not to any extent prejudice Anglin. The State’s case was prima facie complete to the point of justifying the determination of the trier or fact that Anglin was the burglar when Anglin decided not to offer evidence in rebuttal. The situation essentially is not different than if the State had offered an eyewitness to Anglin’s breaking into the Weiss house.

If he chose not to rebut the eyewitness’ testimony, his decision could not effectively be claimed to have amounted to self-incrimination. In the case before us and in the case just suggested, the State proved enough to permit a trier or fact to find guilt and the accused chose not to attempt rebuttal. Anglin’s claims on the constitutional issue must fail. (Emphasis supplied).

The Long-Distance Striking Power of the Inference The appellant seeks to sow the wind but avoid reaping the whirlwind. He may not so adroitly cut his losses. He chose not to challenge the legal sufficiency of the evidence to support his conviction for theft. He thereby implicitly acknowledged the inculpatory potency of the inference arising out of his unexplained possession of recently stolen goods.

The other two evidences of his guilt were only peripheral. In arguing that there was no evidence connecting him with the burglary, he implicitly relies on an unspoken expectation that the inference of his guilt will stop abruptly at the outer boundary of theft and will not penetrate into related crimes that may be inextricably interwoven with the theft. The fatal flaw in the appellant’s legal insufficiency argument, however, is in the insubstantiality of the wedge he ¹⁶⁸ would like to drive between proof of theft and proof of burglary. He acknowledges the legal sufficiency of the proof of theft.

Admittedly, the testimony of Mr. Eisenrauch and Ms. Batchellor identifying certain items found in Mr. Molter’s car as their stolen property provided a sufficient basis for a theft conviction, based on a theory that Mr. Molter had received the stolen items. Because the State failed to present any evidence showing that Mr. Molter broke into and entered Mr. Eisenrauch’s house, however, his conviction for first degree burglary should be reversed. (Emphasis supplied). What the appellant fails to do is to follow the permitted inference out to its ineluctable logical limits.

The permitted inference, of course, is that the unexplained possessor of the recently stolen goods was the actual original thief, who picked up the stolen goods and carried them away in the first instance. If the evidence, moreover, establishes that the theft was inextricably part and parcel of a burglary or a robbery (or, for that matter, a murder or a rape or an arson), the indivisibility of the total criminal package establishes the criminal agency of the possessor for whatever role he played in the criminal episode. Although the imprimatur of approving easelaw is always comforting, the phenomenon that we are talking about is more a function of the inherent logic of the circumstances and, only incidentally, one of law. The time-honored inference that we have been discussing establishes that A (the unexplained possessor of the recently stolen goods) is, in terms of a legally sufficient and permissible deduction, B (the original thief of the goods).

If other evidence, showing an interwoven corpus delicti, then establishes that B was to a reasonable certainty also C (a burglar or a robber or a murderer or a rapist or an arsonist), the inference has simply been taken to its logical conclusion. It is not even a double inference. If A is B and B is C, then A is C. It cannot be otherwise. ¹⁶⁹ In this case, moreover, we do have the comforting reassurance of the caselaw. The Court of Appeals stated the penetrative impact of the inference unambiguously in Brewer v. Mele, 267 Md. at 449 , 298 A.2d 156 : [Possession of recently stolen goods, absent a satisfactory explanation, permits the drawing of an inference ... that the possessor was the thief ... or, where the theft was compounded, that the possessor was also the burglar ... or the robber.

(Emphasis supplied). Indeed, the permitted inference that the possessor was the thief coupled with evidence that the theft was a compound theft has regularly been held to be legally sufficient to convict the possessor of the compound theft in all of its compounded manifestations. Debinski v. State, 194 Md. at 358 , 71 A.2d 460 (breaking and entering); Felkner v. State, 218 Md. at 305 , 146 A.2d 424 (burglary); Butz v. State, 221 Md. at 76-77 , 156 A.2d 423 (burglary); Oden v. State, 223 Md. 244, 246 , 164 A.2d 284 (1960) (burglary); Lewis v. State, 225 Md. at 475-76 , 171 A.2d 244 (“Clearly these established facts were sufficient to support a credible inference that the possessor was the burglar as well as the thief.”); Ponder v. State, 227 Md. 570, 571-72, 177 A.2d 839 (1962) (burglary); Boggs v. State, 228 Md. 168, 172 , 179 A.2d 338 (1962) (“Appellant’s possession of the stolen property ... was enough to give rise not only to the inference of fact that he was the thief ... but would also tend to support an inference that as the possessor he was the burglar as well as the thief.”); Howard v. State, 238 Md. 623, 624 , 209 A.2d 604 (1965) (“When he was arrested, appellant was wearing a pair of shoes which had been recently stolen and he could give no reasonable explanation of how they came into his possession. The trial judge could properly draw from the circumstances the inference of fact that he was the burglar.”); Anglin v. State, 244 Md. 652, 658 , 224 A.2d 668 (1966) (burglary).

The Court of Appeals reaffirmed this consistent line of holdings in Grant v. State, 318 Md. 672, 680-81 , 569 A.2d 1237 (1990): ¹⁷⁰ Ordinarily, the unexplained exclusive possession of recently stolen goods permits an inference that the possessor is the thief____and when it is shown that the property was stolen as a consequence of a breaking, the trier of fact may further infer that the thief was involved in the breaking. (Emphasis supplied). This Court has invariably taken the same approach. In Anglin v. State, 1 Md.App. 85, 92-94 , 227 A.2d 364 (1967), cert. denied, 246 Md. 755 (1967), the inference that the defendant was the thief was enough to convict him of theft as well of the two interlocking crimes of daytime housebreaking and common law burglary.

In Reagan v. State, 4 Md.App. 590, 605 , 244 A.2d 623 (1968), the inference led to a conviction for daytime housebreaking. In Bever v. State, 4 Md.App. 436, 444 , 243 A.2d 634 (1968), cert. denied, 252 Md. 729 (1969), this Court held: Possession of recently stolen goods supports a credible inference that the possessor was the thief, and, coupled with evidence of a breaking, that he was one who performed the breaking. (Emphasis supplied). See also Allen v. State, 2 Md.App. 740, 745, 237 A.2d 90 (1968) (“As to the burglaries, possession of goods recently stolen in a burglary is evidence that the possessor was the burglar and casts the burden on the possessor to give a reasonable explanation of how he came into its possession-.”) (Emphasis supplied).

In Wynn v. State, 69 Md.App. 536, 542 , 518 A.2d 1072 (1987), aff'd in part, rev’d in part on other grounds, 313 Md. 533 , 546 A.2d 465 (1988), Judge Alpert rejected a contention indistinguishable from the one now being made by the appellant in this case. Appellant next contends that the evidence was insufficient to sustain his convictions for housebreaking and theft because there was no direct evidence that he broke into the Prausers’ home and stole the items found in the bag; the only evidence against him was circumstantial. ¹⁷¹ As we reiterated in Samuels v. State, 54 Md.App. 486, 493 , 459 A.2d 213 (1983): Unexplained possession of recently stolen goods gives rise to an inference that the possessor is the thief; if the theft occurred as part of a burglary or robbery, the inference is that the possessor is the burglar or robber. The circumstantial evidence was sufficient to sustain the convictions for housebreaking and theft. (Emphasis supplied).

See also Moylan, Maryland’s Consolidated Theft Law and Unauthorized Use (MICPEL 2001), § 12.6, “Common Law Presumptions Still Operational,” pp. 88-89 n. 31. As a logically indistinguishable variation on the familiar theme, Booker v. State, 225 Md. 183, 186 , 170 A.2d 203 (1961), was a decision approving the sufficiency of the inference to prove that the possessor of the recently stolen goods was not only the thief but an armed robber as well. The evidence in this case that, without challenge, proved that the appellant was guilty of theft was also legally sufficient to prove that he was guilty of the concomitant burglary. Benjamin Nathan Cardozo was still sitting on the Court of Appeals for New York when he wrote for that Court in People v. Galbo, 218 N.Y. 283, 290 , 112 N.E. 1041, 1044 (1916): It is the law that recent and exclusive possession of the fruits of crime, if unexplained or falsely explained, will justify the inference that the possessor is the criminal.

That rule has most frequently been applied in cases of burglary and larceny and receiving stolen goods; but it is not unknown in cases of murder. The highwayman kills his victim; the purpose of the murder is robbery; the same inference that identifies the robber identifies the murderer. PBJ and Impeachment of Credibility The State’s first witness was Eric Eisenrauch, the victim of the burglary. The appellant sought to impeach the testimonial credibility of Eisenrauch by showing that Eisenrauch had ostensibly been convicted of the possession of a ¹⁷² controlled dangerous substance.

Judge Plitt ultimately did not allow the impeachment. The appellant’s primary argument relies on Maryland Rule of Procedure 5—609(a), which provides in pertinent part: (a) Generally. For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record during examination of the