Montgomery v. State

WATTS, J. Following a trial held on May 16, 2011, a jury in the Circuit Court for Washington County convicted Bashawn Moneak Montgomery, appellant, of one count of robbery, one count of second-degree assault, two counts of theft of property with a value of at least $500, 1 two counts of obtaining property with a value of over $500 by use of a stolen credit card, 2 and two counts of unauthorized use or disclosure of a credit card number. 3 See Md.Code Ann., Crim. Law Art. (“C.L.”) § 3-402 (robbery); C.L. § 3-203 (second-degree assault); C.L. § 7-104(a) (theft); 4 C.L. § 8-206(a) (obtaining property by ³⁶³ use of a stolen credit card); 5 C.L. § 8-214(a) (unauthorized use or disclosure of a credit card number). On July 11, 2011, the circuit court sentenced appellant to fifteen years’ imprisonment, with all but ten years suspended, for robbery; fifteen years’ imprisonment consecutive, with all but ten years suspended, for the first count of obtaining property by use of a stolen credit card; fifteen years’ imprisonment concurrent, with all but ten years suspended, for the second count of obtaining property by use of a stolen credit card; eighteen months’ imprisonment concurrent for each of the two counts of unauthorized use or disclosure of a credit card number; and three years’ supervised probation, with $2,120 in restitution to King’s Jewelry Store as a condition of probation. 6 Appellant noted an appeal 7 raising three issues, which we rephrase: 8 I. Did the circuit court err by purportedly failing to swear the jury? ³⁶⁴ II. Was the evidence sufficient to support the convictions for robbery, second-degree assault, and obtaining property by use of a stolen credit card?

III

Was appellant improperly convicted of and sentenced for two separate counts each of theft, unauthorized use or disclosure of a credit card number, and obtaining property by use of a stolen credit card? For the reasons set forth below, we answer question I in the negative. We answer question II in the affirmative. We answer question III in the affirmative as to the second conviction for theft (“Count Five”) and the second conviction and sentence for obtaining property by use of a stolen credit card (“Count Seven”).

We, therefore, reverse the second conviction for theft (“Count Five”) and the second conviction for obtaining property by use of a stolen credit card (“Count Seven”). We vacate the sentence for the second conviction for obtaining property by use of a stolen credit card (“Count Seven”). 9 We answer question III in the negative in all other respects. We, therefore, affirm all other sentences and judgments of conviction. 10 FACTUAL AND PROCEDURAL BACKGROUND The acts for which appellant was convicted occurred on June 8, 2008, at King’s Jewelry Store in Hagerstown, Maryland. Trial At trial, as a witness for the State, Kristi Mellott testified that on June 8, 2008, she was a sales associate at King’s ³⁶⁵ Jewelry Store.

Mellott testified that a man, whom she identified as appellant, entered the store with an unidentified man and woman. According to Mellott, appellant gave her a piece of jewelry to clean, and as she was cleaning the piece of jewelry, one of its stones fell out. Mellott offered to send out the piece of jewelry to have it fixed for free. Mellott testified that appellant declined the offer and, “seem[ing] very agitated!,]” started “trying to bargain with [her].

Maybe to give him free things or something for him having to go get [his piece of jewelry] fixed somewhere else.” According to Mellott, appellant “began pointing at the cases saying he wanted things.” According to Mellott, appellant told her to keep her hands above the counter where he could see them, and every time she moved her hands, he became “hostile.” Mellott testified that appellant’s “voice was very strong and loud. He was very demanding of [her] to do exactly what he said. Not to leave the area.” Mellott testified that appellant “told [her] to stand in a certain spot and he kept saying, ‘You’re going to do this,’ and he told [her] not to move[.]” According to Mellott, if she did not follow appellant’s directions, appellant “would start speaking louder towards [her] or demanding [her] to do things.” Mellott testified that she did not feel that she was free to leave and go into the store’s office because she “didn’t know what [appellant] was going to do.” When asked: “When you said you were scared and fearful were you fearful that you maybe hurt[,]” Mellott replied: “Yes.” 11 Mellott testified that she felt “very uncomfortable. [She] was scared for [her] life because [she] didn’t know what was going to happen if [she] didn’t listen to” appellant. According to Mellott, appellant pointed to a ring that was part of a bridal set that was priced around $2,000, and said, “I’ll take that.” Mellott testified that appellant “didn’t have his ID or a credit card.” The unidentified man left the store, ³⁶⁶ and stood outside while holding a cell phone and a piece of paper.

The man spoke into the cell phone, re-entered the store, and handed to appellant the paper—which had a credit card number and an expiration date written on it. Mellott testified that appellant, in a very “angry” voice, ordered her to type the paper’s credit card number into the store’s debit machine. Mellott was not supposed to enter a credit card number without the credit card, “but because of feeling threatened [she] did do it. [She] continuously asked [appellant] for his ID telling him [that she] could not do it----He told [her that she] had to do it.” Mellott testified that she would “never” have entered the credit card number if appellant had not acted the way that he did. Mellott testified that she “typed in a wrong number” and that appellant said, “You typed in the wrong number.

Give it to me. I’ll do it.” Mellott then typed in the correct credit card number from the paper. Mellott testified that the credit card number was declined and that appellant then chose another ring—the other ring in the $2,000 bridal set. Mellott testified that she charged the credit card number for $1,000, “[b]ut it was two thousand so [appellant] told [her] to do it again.” Mellott rang up two separate charges for $1,000 on the credit card number from the piece of paper.

According to Mellott, appellant left the store with the two rings from the $2,000 bridal set. Mellott testified that her cash register was equipped with an alarm button, which she did not press during the incident. During Mellott’s encounter with appellant, one of her coworkers was in the watch repair room, a closet-sized room directly behind the jewelry counter with a door that was “always open.” Mellott testified that, during the encounter, she telephoned Mary Screen, the store manager, to tell Screen that a customer “didn’t have an ID and [she] didn’t know what to do.” According to Mellott, Screen arrived at the store no more than about ten minutes before the transaction’s end. As a witness for the State, Screen testified that on June 8, 2008, she was the manager of King’s Jewelry Store and “got a phone call ... that there[ was] something going on in the ³⁶⁷ store.” According to Screen, she entered the store and saw Mellott behind the counter waiting on a customer, whom Screen identified at trial as appellant.

Mellott looked “nervous” and “was shaking. She was trembling.” According to Screen, appellant was “being very impatient. [She] went in and actually made the phone call to the credit card company to get it approved and [appellant] said, ‘Don’t waste the energy, hang up the phone.’ ” Screen testified that appellant made her feel “[v]ery uncomfortable” because of “[h]is demeanor. The way he was speaking.” Screen testified that she had been working at the store since 1999, and had dealt with difficult customers before. Screen responded “[v]ery” when asked if she would classify appellant as “[b]eyond being difficult.” As a witness for the State, Joan Lamoy testified that, around June or July of 2008, one of her credit cards was declined.

Lamoy testified that she called her credit card company and was told that her credit card was declined because of large purchases, “at least a couple thousand dollars,” at a jewelry store. Lamoy testified that she never gave anyone permission to use her credit card number. According to the charging document, Lamoy’s credit card number was the one that appellant used on June 6, 2008, at King’s Jewelry Store. As a witness for the State, Rhonda Maketa testified that, in 2008, she was a “point of sale coordinator” at King’s Jewelry Store’s corporate office.

Maketa testified that credit cardholders’ banks would contact her office when the credit cardholders disputed charges. Maketa testified that, in July 2008, Heartland Payment Systems—King’s Jewelry Store’s credit card processor—asked her office to investigate two charges that had been made on June 8, 2008, at King’s Jewelry Store in Hagerstown. According to Maketa, Heartland Payment Systems believed that the credit cardholder had not authorized the two charges. The State offered into evidence, as State’s Exhibit 2, a two-page document that Maketa identified as two separate requests to her office from Heartland Payment Systems for “retrieval,” or documentation, of the two ³⁶⁸ $1,000 charges that had been made on June 8, 2008, at the King’s Jewelry Store in Hagerstown.

The circuit court admitted State’s Exhibit 2 without objection. Maketa testified that Heartland Payment Systems reversed the two charges of $1,000, leaving King’s Jewelry Store without the merchandise or the $2,000 in payments. The Jury’s Impaneling On May 16, 2011, a jury panel convened for selection of the jury for appellant’s trial. Before voir dire, the jury panel was sworn, as follows: 12 CLERK: Do you and each of you solemnly promise and declare that you shall true answers make to such questions, as the Court shall demand of you?

If so please answer I do. JURY PANEL [ ]: (IN UNISON) I do. CLERK: Please be seated. Voir dire ensued, and a twelve-member jury was selected.

The circuit court picked a foreperson, dismissed the jury panel’s remainder, and took a brief recess. The circuit court resumed, ordered the witnesses sequestered, addressed a defense motion, and summoned the jury to begin opening statements. The swearing of the jury appears nowhere in the record. The docket entries say nothing about whether or not the jury was sworn.

The record reflects that neither party ever requested that the jury be sworn. After hearing all of the evidence and deliberating, the jury delivered a verdict. Motion for Judgment of Acquittal After the State rested, appellant moved for judgment of acquittal, arguing, in pertinent part: ³⁶⁹ [A]s Count 1 [robbery] goes, the State is required to establish that [appellant] took the property from the victim’s [Mellott’s] presence and control, that [appellant] took the property by force or threat of force and that [appellant] intended to deprive the victim of the property. Your Hon- or, [appellant] at this time is most concerned with the allegations as far as element number two, that [appellant] took the property by force or by threat of force.

And I would argue [Y]our Honor, in addition to the original, to the first stated argument as far as a[n] incorrect victim having been listedf[ 13 ] that there has been no testimony that there was a force or that there was a threat of force. Indeed the testimony that the State has heard was that, or that the State has presented, was that she might, [appellant] spoke in a tone of voice. The voice was strong. The voice was demanding.

He spoke louder. She [Mellott] was uncomfortable. She never said he threatened her. She never said that he threatened her with force.

Whether or not she, she very well may have been scared. The fact that she might have been scared is an element that is separate and apart from what the elements of a robbery are. Threat or threat of force. There was no[ ] testimony that there was a threat or that there was a threat of force.

It’s that simple. There’s no[ ] testimony as to [a] weapon. There was testimony that she was. She was scared.

He used a loud voice. Well that in [and] of itself [Y]our Honor I don’t think is sufficient to establish the elements that are required as far as a robbery to allow Count number 1 [robbery] to go to the jury. [I]n order to establish, in order for there to be legal and sufficient evidence [of second-degree assault] to go to the jury, the State has to establish that [appellant] committed ³⁷⁰ the attack with the intent of placing her [Mellott] in fear. What’s most important is that [appellant] had the apparent ability at the time to bring about the offensive physical contact and harm. I think that this is separate and apart from whatever her subjective belief was she believed, she was scared, she believed she was going to be hurt, I believe that’s her belief as far as whether or not there was a force or a threat of force.

But as far as whether or not [appellant] had the apparent ability, there was no testimony—The only testimony that the Court heard was that [appellant] was in the store. In fact, the Court actually heard testimony that there were two other people in the store, a customer and a sales clerk. There was no information that—The Court heard the information that she was behind the sales counter. There was no information that he tried to leap the sales counter.

There was no information that he leaned forward. There was no testimony whatsoever that he in any way, shape or form, had the ability to carry forth this assault, number one. Number two, or I guess it’s element number three, is that she [Mellott] reasonably feared immediate contact. Again, my position would be and based on what the Court’s ruling is that she may have had a subjective] belief of this or whether or not this belief was reasonable.

I don’t believe that it was a reasonable belief. There were three, 2 other people in the store. Nobody called the police so I’m not sure how reasonable her belief was. Again, I believe it was a subjective belief.

Your Honor, so far as Count 4 [theft] and Count 5 [same] we would submit on the evidence that has been presented so far. 6 [obtaining property by use of a stolen credit card], 7 [same], 8 [unauthorized use or disclosure of a credit card number], and 9 [same] [we] also submit with the argument that we don’t believe there has been legally sufficient evidence as far as all the elements that are required under the ³⁷¹ obtaining property by theft or misrepresentation or as well as the unlawful disclosing of a payment device number. The circuit court denied the motion as to all counts. DISCUSSION I. Swearing of the Jury (1) Contentions Appellant contends that the circuit court erred in failing to swear the jury. Appellant argues that “[tjhere is plainly a difference between administering an oath to prospective jurors prior to voir dire, and swearing twelve impaneled jurors.” Appellant asserts that, “[bjecause the jurors who were ultimately selected to hear [appellant’s case were never sworn to well and truly hear the evidence, follow the [circuit court’s instructions and reach a fair verdict, [appellant’s right to an impartial jury was improperly denied[.]” The State responds that appellant “has failed to rebut the presumption of regularity in the present case [because, although the record does not affirmatively show that the jury was sworn, [appellant has] not overcome the presumption that the jury was, in fact, given the oath.” The State contends that, “other than noting the absence of the oath in the record, [appellant] has not offered any evidence to support his claim that the jury was not sworn.” The State argues that “there were no affirmative statements by counsel or the [circuit] court on the record and no motion for a new trial alerting the [circuit] court to any problem.

Indeed, the first complaint regarding the swearing of the jury comes on appeal.” The State asserts that “[t]he mere fact that the record fails to show an affirmative statement indicating that the jury was sworn does not automatically invalidate the verdict.” Alternatively, the State concedes that, “[i]f this Court should find that [appellant] has established that the jury was not sworn in the present case, the proper remedy is to remand the case for retrial[.]” ³⁷² In a reply brief, appellant contends that, in Harris, infra, the Court of Appeals did not hold that a presumption of regularity applies to the issue of whether the jury was sworn. Appellant argues that “the record must affirmatively show that the jury was sworn, that there is no ‘presumption of regularity’ regarding the swearing of the jury and that he does not bear any burden other than to show that there is no swearing of the jury in the transcript.” Appellant asserts that, assuming arguendo that there is a presumption of regularity, he “has rebutted that presumption” because “the transcript lack[s] any affirmative swearing of the selected petit jury.” (2) Law (a) Requirement to Swear the Jury Maryland Rule 4—312(g)(1) provides, in pertinent part: “The individuals to be impaneled as sworn jurors ... shall be sworn.” Maryland Rule 4-312(g)(l) “represents the codification of a long-standing common law requirement.” Harris v. State, 406 Md. 115, 124 , 956 A.2d 204 (2008). 14 In Harris, id. at 132 , 956 A.2d 204 , the Court of Appeals reversed the defendant’s convictions and remanded for a new trial where “the jury which convicted the [defendant] was never sworn[.]” In Harris , after voir dire was conducted, jurors were chosen, and a foreperson was selected, the following exchange occurred: “Defense Counsel: Your Honor, is the Jury going to be sworn? “The Court: They’re going to lunch. Why? “Defense Counsel: I was just asking if they will be sworn. “The Court: They are excused until 1:30.” Id. at 118-19 , 956 A.2d 204 . “The transcript [did] not reflect that the jury was sworn once they returned from lunch or that ³⁷³ the jury was ever sworn thereafter.” Id. at 119 , 956 A.2d 204 . The unsworn jury convicted the defendant, who moved for a new trial on the ground that the jury had never been sworn.

Id. at 119-20 , 956 A.2d 204 . The trial court denied the defendant’s motion, and the Court of Appeals reversed. Id. at 118, 122 , 956 A.2d 204 . The Court held: ...

Article 21 of the Maryland Declaration of Rights requires, inter alia, that in a criminal prosecution, the accused is entitled to “trial by an impartial jury, without whose unanimous consent he ought not to be found guilty.” Courts have held that a sworn jury is an element of an “impartial” jury and is necessary for a “legally constituted” jury. Consequently, the failure to administer the oath to the jurors in the case at bar was clearly error. Id. at 125-27 , 956 A.2d 204 . The Court held that “there was no waiver of [the defendantj’s objection to the unsworn jury,” id. at 122 , 956 A.2d 204 , because “[djefense counsel twice called the trial [courtj’s attention to the failure to swear the jury” on the day of trial, id. at 130 , 956 A.2d 204 , and, after the jury delivered a verdict, moved for a new trial on the ground that the jury had never been sworn.

Id. at 119 , 956 A.2d 204 . Nonetheless, the Court stated: “[Pjrineiples of waiver and harmless error are inapplicable when a jury in a criminal case has never been sworn.... [T]he administration of the oath is an essential ingredient of a legally constituted jury and an impartial jury.” Id. at 129 , 956 A.2d 204 . The Court stated that “a jury which has never been sworn falls into the same ‘structural error’ category as a defective reasonable doubt instruction, the denial of a right to a jury trial, the total deprivation of counsel, discrimination in the selection of juries, etc.” Id. at 130 , 956 A.2d 204 (emphasis added). “A structural error is one that amounted to structural defects in the trial itself.” Boulden v. State, 414 Md. 284, 308 , 995 A.2d 268 (2010) (citation and internal quotation marks omitted). Structural error cannot be harmless.

Id. at 307 , 995 A.2d 268 (citations omitted). ³⁷⁴ In Alston v. State, 414 Md. 92, 96, 109 , 994 A.2d 896 (2010), the Court of Appeals affirmed the defendant’s convictions, determining that a “belated administration of the oath to jurors” constituted harmless error. The Court stated: We agree with the majority view that draws a distinction between (1) a jury which is never sworn or not sworn prior to deliberations, and (2) a jury that is belatedly sworn, but the oath is administered before the commencement of jury-deliberations. As previously discussed, the reasons for treating the former as structural error do not apply to the latter. Accordingly, in the latter situation, the error is subject to a harmless error analysis.

Where the defendant is not prejudiced by the delay, the late administration of the oath will ordinarily cure the error. Id. at 107 , 994 A.2d 896 . (b) Presumption of Regularity In Harris, 406 Md. at 122 , 956 A.2d 204 , the Court of Appeals discussed the presumption of regularity generally, stating: There is a presumption of regularity which normally attaches to trial court proceedings, although its applicability may sometimes depend upon the nature of the issue before the reviewing court. See, e.g., United States v. Morgan, 346 U.S. 502, 512 , 74 S.Ct. 247, 253 , 98 L.Ed. 248 , 257 (1954) (“It is presumed the [trial court] proceedings were correct and the burden rests on the [challenger] to show otherwise”); Skok v. State, 361 Md. 52, 78 , 760 A.2d 647, 661 (2000) (“[A] presumption of regularity attaches to the criminal case”); Beales v. State, 329 Md. 263, 273 , 619 A.2d 105, 110 (1993) [ (“[W]e are conscious of the strong presumption that judges properly perform their duties”)]; Schowgurow v. State, supra, 240 Md. [121,] 126, 213 A.2d [475,] 479 [(1965) (“There is a strong presumption that judges and court clerks, like other public officers, properly perform their duties”) ].

Nonetheless, the presumption of regularity is rebuttable. Beales v. State, supra, 329 Md. at 274 , 619 A.2d at 110-111 . (“[W]hen viewed as a whole,” the “record thus ³⁷⁵ demonstrates” that the presumption of regularity was rebutted). (Some alterations in original).

In Harris, 406 Md. at 124 , 956 A.2d 204 , the Court of Appeals held that “any presumption of regularity was overcome” because: The trial transcript clearly shows that the jury was not sworn before the jurors were dismissed for lunch. When the jury reconvened after lunch, the transcript reveals that the Circuit Court proceeded directly with opening statements, without the oath being administered to the jury. According to the trial transcript, which the official reporter of the Circuit Court certified as being “complete and accurate,” the jury was not sworn at any point during the trial. The docket entry stating that the jury was not sworn reinforces the accuracy of the transcript.

Id. at 122-23 , 956 A.2d 204 (emphasis added). The Court discussed United States v. Pinero, 948 F.2d 698 (11th Cir. 1991), in which, according to the Court of Appeals: [T]he argument that the jury was not sworn was made for the first time on appeal, and the [federal] appellate court pointed out that there were no statements by trial counsel, the court reporter, or anyone else present at the trial, that the jury had not been sworn. In this context, the federal appellate court simply stated that “[t]he mere absence of an affirmative statement in the record ... is not enough to establish that the jury was not in fact sworn.” Pinero, 948 F.2d at 700 . The record in the present matter offers substantially more than the record in Pinero to establish that the jury was not sworn.

The docket entries contain the affirmative statement that the jury was not sworn. The trial transcript also shows two inquiries from defense counsel regarding the unsworn jury, in addition to an inquiry from the courtroom clerk. Harris, 406 Md. at 123 , 956 A.2d 204 (emphasis added) (second alteration in original). ³⁷⁶ (3) Analysis (a) Presumption of Regularity as to the Swearing of the Jury As there is an absence in the record of any information affirming or negating the administration of the oath to the jury, we must ascertain whether the presumption of regularity in trial court proceedings applies to the issue of whether the jury was sworn. After careful consideration of the holding of the Court of Appeals in Harris , and authorities from Maryland and other jurisdictions, we are convinced that the presumption of regularity applies to the issue of whether a jury has been sworn.

In Harris, 406 Md. at 123-24 , 956 A.2d 204 , the Court of Appeals identified the following circumstances that, in combination, overcame “any presumption of regularity,” ie. that the jury had been sworn: “The docket entries contain[ed] the affirmative statement that the jury was not sworn[, and t]he trial transcript also show[ed] two inquiries from defense counsel regarding the unsworn jury, in addition to an inquiry from the courtroom clerk.” Because of these four references to the jury being unsworn, the Court held that the defendant “did establish that the jury was not sworn[.]” Id. at 122 , 956 A.2d 204 . After concluding that the defendant had established that the jury was not sworn, the Court of Appeals discussed cases from other jurisdictions and declined to express an opinion with respect to the presumption of regularity. Id. at 124 n. 1, 956 A.2d 204 . The Court stated: Since the Court of Special Appeals and the arguments in this Court have focused on whether the presumption of regularity was overcome, we have dealt with the issue on this basis.

We point out, however, that there is authority holding that the record must affirmatively show that the jury was sworn. See, e.g., Slaughter v. State, 100 Ga. 323, 329 , 28 S.E. 159, 161 (1897) (“ ‘[T]he fact of swearing [the jurors] must appear on the record’ ”); State v. Frazier, 339 Mo. 966, 980 , 98 S.W.2d 707, 715 (1936) (“[I]t is imperative that the jury be sworn to try the cause and that the record ³⁷⁷ show it”); State v. Mitchell, 199 Mo. 105, 108 , 97 S.W. 561, 562 (1906) (“[I]t is everywhere held that the record proper in a criminal appeal must show that the jury was sworn to try the cause”); State v. Moore, 57 W.Va. 146, 148 , 49 S.E. 1015, 1016 (1905) (“[A] person cannot be legally convicted unless the record shows that the jury which tried the case were sworn according to law”). Moreover, most of the cases in other states, dealing with the issue of whether jurors were sworn, have not considered the issue in terms of a presumption of regularity. Nevertheless, we need not, and therefore do not, express an opinion with respect to this matter.

We have simply assumed, arguendo, that a presumption of regularity is applicable to the issue of whether the jury was sworn. Hams, 406 Md. at 124 n. 1, 956 A.2d 204 (emphasis added) (some alterations in original). With this discussion, the Court of Appeals identified four cases, the most recent of which was decided in 1936. 15 Id. All four of these cases predate the four cases that, the Court of Appeals determined, support the proposition that “[tjhere is a presumption of regularity which normally attaches to trial court proceedings, although its applicability may sometimes depend upon the nature of the issue before the reviewing court.” Id. at 122 , 956 A.2d 204 .

The four former cases were all decided by courts of other States, while the four latter cases were decided either by the United States Supreme Court or the Court of Appeals. Ultimately, in Harris, 406 Md. at 123 , 956 A.2d 204 , the Court of Appeals pointed out that in Pinero—a case upon which the State and this Court relied—the United States Court of Appeals for the Eleventh Circuit determined that the defendant had failed to show that the jury had not been sworn. The federal appellate court stated: ³⁷⁸ The mere absence of an affirmative statement in the record, however, is not enough to establish that the jury was not in fact sworn____ In the end, then, we are left with an issue of fact— whether the [trial] court administered the oath to the jury. [An appellate] court, however, is not the appropriate body to resolve factual issues. When the factual issue is raised for the first time on appeal, this is especially true.

Pinero, 948 F.2d at 700 (emphasis added) (citations omitted). In Harris, 406 Md. at 128 , 956 A.2d 204 , the Court of Appeals concluded that the record on appeal “offer[ed] substantially more than the record in Pinero to establish that the jury was not sworn.” Although the Court declined to express an opinion as to the applicability of the presumption of regularity, id. at 124 n. 1, 956 A.2d 204 , a fair reading of Harris is that the absence of an affirmative statement in the record is not enough to establish that a jury is unsworn. From this logic, we conclude that the presumption of regularity applies to the issue of whether a jury has been sworn. Our conclusion is bolstered by the holdings of the Court of Appeals in Nicolas v. State, 426 Md. 385 , 44 A.3d 396 (2012), and Black v. State, 426 Md. 328 , 44 A.3d 362 (2012).

In Nicolas, 426 Md. at 419 , 44 A.3d 396 , the Court held that the defendant failed to overcome the presumption of regularity as to whether or not the trial court received a certain note from the jury during deliberations. Although the note was part of the record, the note “was never mentioned in the trial transcript, it was never marked as an exhibit, it was never responded to by the [trial] court, and it contained no date or time-stamp.” Id. at 399 , 44 A.3d 396 . The Court stated [T]here is a presumption of regularity which normally attaches to trial court proceedings, although its applicability may sometimes depend upon the nature of the issue before the reviewing court. Harris v. State, 406 Md. 115, 122 , 956 A.2d 204, 208 (2008) (citations omitted).

To overcome the presumption of regularity or correctness, the [defendant] has the burden of producing a sufficient factual record ³⁷⁹ for the appellate court to determine whether error was committed. Id. at at 416, 44 A.3d 396 (emphasis added) (citations and internal quotation marks omitted). In a similar opinion, Black, 426 Md. at 337, 342 , 44 A.3d 362 , the Court of Appeals held that the trial court did not err in failing to inform the defendant of a jury note which appeared in the record, but was neither dated, time-stamped, nor mentioned in the transcripts. The Court stated: “[Tjhere is a presumption, under [Maryland] Rule 4-326(d), that written jury communications that are received by the trial court will be dated and time-stamped and that the time of any oral communications will be noted in the record.” Id. at 370-71 , 44 A.3d 362 .

Maryland Rule 4-426(d) provides in pertinent part: “All ... communications between the [trial] court and the jury shall be on the record in open court or shall be in writing and filed in the action. The [courtroom] clerk or the [trial] court shall note on a written communication the date and time it was received from the jury.” (Emphasis added). Pursuant to Black, 426 Md. at 369-70 , 44 A.3d 362 , where a Maryland Rule mandates that a trial court or courtroom clerk take a certain procedural action—and the record on appeal contains no information that negates the occurrence of that procedural action—there is a rebuttable presumption that the trial court or courtroom clerk took that procedural action. Unless the record offers contrary information, there is a rebuttable presumption that the jury in a criminal case was sworn pursuant to Maryland Rule 4-312(g)(l), which provides in pertinent part: “The individuals to be impaneled as sworn jurors ... shall be sworn.” (Emphasis added).

We find persuasive State v. Mayfield, 235 S.C. 11 , 109 S.E.2d 716, 723-24 (1959), in which the Supreme Court of South Carolina held that the defendant had failed to show that the jury had not been sworn where, as here, the record was devoid of any mention of the swearing of the jury. The Supreme Court of South Carolina stated: ³⁸⁰ Absence of affirmative statement in the transcript that the jury was sworn furnishes no factual support for [the defendant]^ contention that it was not. [The defendant’s statement that the jury was not sworn stands alone, and is, in our opinion, insufficient to overcome the contrary presumption. But if indeed the jury was not sworn, that was a fact known to [the defendant] during the trial and which he should then and there have called to the attention of the trial [court]. His contention, made for the first time more than eight years afterwards, comes too late.

One may not take his chance of a favorable verdict and, after an unfavorable one, raise an objection that should have been made before the verdict was rendered. Id. (emphasis added) (citations omitted). Agreeing with the logic of Hams, Pinero, and Mayfield , and applying the holdings of Nicolas and Black, we hold that the presumption of regularity applies to the issue of whether or not a jury has been sworn.

Having determined that the presumption of regularity applies to the issue of whether or not a jury has been sworn, we conclude that appellant failed to rebut the presumption. 16 The record is devoid of any affirmative indication that the jury was unsworn. Neither the docket entries nor the transcript contain an affirmative statement that the jury was unsworn. The record is devoid of any mention by the attorneys or the courtroom clerk as to the jury not being sworn. According to the instant case’s transcript, the circuit court took a twenty-four-minute recess before proceeding to opening statements.

The record leaves open the possibility that the jury was sworn during that twenty-four-minute timeframe—or at some other time not on the record. Appellant points us to no affirmative evidence—and we find none in the record—that the jury was ³⁸¹ unsworn. For the reasons discussed above, appellant failed to rebut the presumption that the jury was sworn, and thus, has failed to show any error on the part of the circuit court. 17 Our holding discourages “defense gamesmanship” by ensuring that a defendant will not be able to get “a ‘free look’ ³⁸² at the State’s case-in-chief’ by deliberately not objecting to the trial court’s failure to swear the jury. Boulden, 414 Md. at 306 , 995 A.2d 268 (“[I]f the failure to object is, or even might be, a matter of strategy, then overlooking the lack of objection simply encourages defense gamesmanship.” (Citation and internal quotation marks omitted)); see also Mayfield, 109 S.E.2d at 724 (The Supreme Court of South Carolina rejected the defendant’s argument that the jury had been unsworn because “[o]ne may not take his chance of a favorable verdict and, after an unfavorable one, raise an objection that should have been made before the verdict was rendered.”).

To hold otherwise would allow—and even encourage—defendants to refrain from calling readily corrected errors to the trial court’s attention, and to attempt to avail themselves of automatic reversals on appeal. 18 ³⁸³ II. Sufficiency of the Evidence (1) Contentions Appellant contends that the circuit court erred in holding that there was sufficient evidence to support the convictions for robbery, second-degree assault, and obtaining property by use of a stolen credit card. Appellant argues that there was insufficient evidence to sustain the conviction for robbery because the State “failed to prove that a reasonable person under the same circumstances [as Mellott] would have felt apprehension that [appellant] was about to apply force.” Appellant asserts that Mellott’s testimony merely “established that she was dealing with an annoyed, rude, and demanding customer. Nothing she testified to would lead a reasonable person to apprehend force or fear for her life[.]” (Emphasis in original).

Appellant maintains that Mellott’s “ ‘fear for her life’ was completely unreasonable[,]” as evinced by Mellott’s failure to press her cash register’s alarm button or alert her coworker, who although she was in the watch repair room directly behind the sales counter, never came to Mellott’s aid or called the police. Appellant contends that Screen “failed to add anything to prove that a robbery had taken place” because she was not concerned enough to call the police between receiving Mellott’s call and arriving at the store. Appellant contends that there was insufficient evidence to sustain a conviction for second-degree assault because “no reasonable person would have apprehended an imminent battery under the facts present here.” Appellant argues that, “[fjor the same reason that it was not reasonable for [ ] Mellott to fear the use of force by [appellant], it was also not reasonable for [] Mellott to be frightened for purposes of proving second degree assault of the intent to frighten variety.” Appellant contends that there was insufficient evidence to sustain a conviction for obtaining property by use of a stolen credit card because “[t]here was absolutely no evidence that [appellant] violated [C.L.] § 8-204 [theft of a credit card or ³⁸⁴ receipt of a stolen credit card] or [C.L.] § 8-205 [counterfeiting of a credit card] as required for a conviction under [C.L.] § 8-206(a) [obtaining property by use of a stolen credit card]. Nor was there any evidence to establish that [appellant] used a credit card that he knew to be counterfeited.” 19 The State responds that the evidence was sufficient to support convictions as to all counts.

It contends that there was sufficient evidence of robbery because Mellott’s and Screen’s testimony established that appellant “obtained the rings by intimidation.” The State argues that there was sufficient evidence of second-degree assault because “[t]he testimony regarding [appellant’s words, actions, and demean- or showed that the victim’s fear was reasonable and the jury could infer an intent to frighten on that basis.” The State asserts that appellant “failed to articulate at trial the grounds that he now asserts on appeal, [and] has failed to preserve his claim of error regarding the sufficiency of [the] evidence for obtaining property by” use of a stolen credit card. Alternatively, the State maintains that there was sufficient evidence of obtaining property by use of a stolen credit card because “the jury could have inferred that [appellant] used a credit card in violation of [C.L. § 8-204 (theft of a credit card or receipt of a stolen credit card) ] by receiving the stolen credit card number from his companion and using it to obtain the rings.” (2) Standard of Review In Morris v. State, 192 Md.App. 1, 30-31 , 993 A.2d 716 (2010), this Court explained the standard of review for the sufficiency of the evidence to support a conviction, stating: ³⁸⁵ In reviewing a challenge to the sufficiency of the evidence to support a conviction, we view the evidence in the light most favorable to the prosecution in order to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. We defer to the fact-finder’s decisions on which evidence to accept and which inferences to draw when the evidence supports differing inferences. In other words, we give deference to all reasonable inferences [that] the fact-finder draws, regardless of whether ... [we] would have chosen a different reasonable inference.

In our independent review of the evidence, we do not distinguish between circumstantial and direct evidence because [a] conviction may be sustained on the basis of a single strand of direct evidence or successive links of circumstantial evidence. (Alterations, emphasis, and omission in original) (citations and internal quotation marks omitted). (3) Law (a) Preservation of the Issue of the Sufficiency of the Evidence Maryland Rule 4-324(a) provides in pertinent part: A defendant may move for judgment of acquittal on one or more counts ... at the close of the evidence offered by the State and, in a jury trial, at the close of all the evidence. The defendant shall state with particularity all reasons why the motion should be granted.

(Emphasis added). “Under [Maryland] Rule 4-324(a), a defendant is ... required to argue precisely the ways in which the evidence should be found wanting and the particular elements of the crime as to which the evidence is deficient.” Fraidin v. State, 85 Md.App. 231, 244-45 , 583 A.2d 1065 , cert. denied, 322 Md. 614 , 589 A.2d 57 (1991). “[A] motion which merely asserts that the evidence is insufficient to support a conviction, without specifying the deficiency, does not comply with [Maryland] Rule [4-324(a),] and thus does not preserve the issue of sufficiency for appellate review.” Brooks v. State, ³⁸⁶ 68 Md.App. 604, 611 , 515 A.2d 225 (1986), cert. denied, 308 Md. 382 , 519 A.2d 1283 (1987) (citation omitted). “[F]ailure to particularize the reasons for granting a motion for judgment of acquittal in accordance with [Maryland Rule 4-324(a) ]’s requirements necessarily would result in a failure to preserve the issue for appellate review.” Muir v. State, 308 Md. 208, 219 , 517 A.2d 1105 (1986). (b) Sufficiency of the Evidence as to Robbery In Spencer v. State, 422 Md. 422, 428-30 , 30 A.3d 891 (2011), the Court of Appeals explained that robbery in Maryland stems from the common law, and is distinguished from mere theft by the element of force, whether actual or threatened. The Court stated: Robbery in Maryland is governed by a common law standard____ From [robbery’s] earliest days in Maryland law, fear has been a central component in distinguishing the crime of larceny or theft from robbery. The hallmark of robbery, which distinguishes it from theft, is the presence of force or threat of force, the latter of which also is referred to as intimidation.

Where ... it is clear that the victim was neither intimidated [n]or put in fear, there must be evidence of actual violence preceding or accompanying the taking. * * * [T]he mere force that is required to take possession, when there is no resistance, is not enough, i.e., the force must be more than is needed simply to move the property from its original to another position; there must be more force than is required simply to effect the taking and asportation of the property. Thus, it is not robbery to obtain property from the person of another by a mere trick, and without force ... nor is it robbery to suddenly snatch property from another when there is no resistance and no more force, therefore, than is necessary to the mere act of snatching. ³⁸⁷ Id. (some omissions in original) (citations and internal quotation marks omitted). “The determination of whether there has been an intimidation should be guided by an objective test focusing on the accused’s actions.... ‘[B]y intimidation’ means ... in such a way that would put an ordinary, reasonable person in fear of bodily harm.” Id. at 432 , 30 A.3d 891 (citations omitted). For example, in Spencer , the Court of Appeals held that the evidence was insufficient to support a conviction for robbery where the defendant, who never displayed a weapon, “entered an automobile service center and stated to the cashier: ‘Don’t say nothing.’ ” Id. at 425-26 , 30 A.3d 891 .

The Court held that “[tjhere was no evidence that Spencer conducted himself in a manner that could cause apprehension in a reasonable person that the petitioner was about to apply force.” Id. The Court stated: The only thing said by the defendant in this case was the statement by [the defendant] not to say anything. This brief statement, by itself, would not cause an ordinary, reasonable person to have felt apprehension that [the defendant] was about to apply force. A reasonable person in the cashier’s shoes on the day that [the defendant] entered the Jiffy Lube service center, when faced with the statement not to say anything, would not automatically hand over the cash register drawer.

A reasonable person would have likely queried what [the defendant] wanted or what he meant when he said, “Don’t say nothing.” The statement to remain silent was simply not enough to create apprehension that force was about to be applied. To intimidate or threaten an individual to the extent necessary for the legal standard of robbery, something more is needed. Id. at 436 , 30 A.3d 891 . Similarly, in West v. State, 312 Md. 197, 199, 207 , 539 A.2d 231 (1988), the Court of Appeals held that the evidence was insufficient to support a conviction for robbery where the defendant simply snatched the victim’s pocketbook and ran.

The Court stated: ³⁸⁸ [T]he mere snatching or sudden taking away of the property from the person of another does not constitute sufficient force, violence, or putting in fear to support a robbery conviction. [T]he victim here was never placed in fear; she did not resist; she was not injured. The only force applied was that necessary to take the pocketbook from her hand____A fair reading of her testimony supports only one conclusion— that she was not aware she had been dispossessed of the purse until she saw the purse snatcher running from her. Id. at 206-07 , 539 A.2d 231 (citations omitted). In contrast, in Dixon v. State, 302 Md. 447, 464 , 488 A.2d 962 (1985), the Court of Appeals held that the evidence was sufficient to support a conviction for assault with intent to rob where: [T]he defendant with a “cold, hard look” in his eyes approached the cashier with a previously written demand for all her money, in the night, at a time when she was alone in the filling station and carrying a newspaper tightly under his arm, folded in such a way that the cashier “thought it was a weapon inside the newspaper, that he kept still, pointed right towards [her].” (Second alteration in original).

Similarly, in Coles v. State, 374 Md. 114, 129 , 821 A.2d 389 (2003), the Court of Appeals held that the evidence was sufficient to support a conviction for robbery where: During the first robbery, [the defendant] entered the bank wearing a baseball hat, a scarf around his neck, and a jacket or heavy shirt in which he could have concealed a weapon. He walked up to [the victim, a bank teller,] and gave her a bag and a note telling her to “put some money in the bag,” and ordering her “not to hit an alarm ... not to let anybody know,” and to return the note. That note constituted an unequivocal demand for money and an intimidating command not to let anyone know that [the defendant] was stealing the money. ³⁸⁹ Although the defendant did not display a weapon, the Court noted that “possession of an undisclosed weapon may be inferred from the surrounding facts and circumstances.” Id. at 128 , 821 A.2d 389 (citation and internal quotation marks omitted). (c) Sufficiency of the Evidence as to Second-Degree Assault In Hill v. State, 134 Md.App. 327, 355-56 , 759 A.2d 1164 , cert. denied, 362 Md. 188 , 763 A.2d 735 (2000), this Court explained that second-degree assault in Maryland stems from the common law, and is recognized in two forms.

This Court stated: [S]econd degree assault ... encompasses the common law offenses of assault, battery, and assault and battery. Maryland recognizes two forms of assault: (1) an attempt to commit a battery or (2) an intentional placing of another in apprehension of receiving an immediate battery. Assault of the intentional threatening variety is a fully consummated crime once the victim is placed in reasonable apprehension of an imminent battery. All that is required in terms of perception is an apparent present ability from the viewpoint of the threatened victim.

Id. (citations and internal quotation marks omitted). In Hill , this Court held that the evidence was sufficient to support a conviction for second-degree assault of the intentional threatening variety where: [The victim, a mathematics instructor,] testified that [the defendant] demanded that [the victim] give him an A for the class or [the defendant] would kill him, and then raised his jacket to display a gun in a holster. [The defendant] then detailed the manner in which he would dispose of [the victim]’s body. [The victim] stated that he experienced immediate fear for his life and that he had no idea what was going on or what he should do. He explained his efforts to disavow responsibility for [the defendant’s grade and to keep [the defendant] from becoming violent, and expressed his concern, upon [the victim’s officemate]’s return, that the ³⁹⁰ situation would get out of hand and that he and/or [the victim’s officemate] might be shot.

He conveyed how, after [the defendant] left his office, he was afraid to use the telephone or to walk into the hallway, for fear that [the defendant] might hear him call the police or question where he was going. Based on this evidence, a rational trier of fact could conclude that, when [the defendant] displayed the gun and threatened [the victim], [the victim] was placed in reasonable apprehension of an imminent battery, even though the words that [the defendant] used constituted a threat of harm to occur conditionally and in the future. Id. at 356 , 759 A.2d 1164 . In contrast, in Harrod v. State, 65 Md.App. 128, 138 , 499 A.2d 959 (1985), this Court held that the evidence was insufficient to support a conviction for second-degree assault of the intentional threatening variety where: [The defendant] swung a hammer which struck the wall “not too far from” [the victim].

Significantly, there is no evidence that [the victim] was harmed. There is ... insufficient evidence that appellant, by an unlawful intentional act, placed [the victim] in reasonable apprehension of receiving an immediate battery. By definition the victim must be aware of the impending contact. This is consistent with the tort theory of assault.

There is no evidence in the record before us that [the victim] was in fact aware of the occurrences in his home on the morning in question. (Citations omitted). (d) Stolen Credit Card Statutes C.L. § 8-206(a)(l) prohibits obtaining property by use of a stolen credit card and provides, in pertinent part: A person may not for the purpose of obtaining money, goods, services, or anything of value, and with the intent to ³⁹¹ defraud another, use: ... a credit card obtained or retained in violation of § 8-204 or § 8-205[ 20 ] of this subtitle[.] (Emphasis added). C.L. § 8-204 prohibits credit card theft and provides, in pertinent part: (a) Taking credit card from another; receiving credit card taken from another with intent to sell.— (1) A person may not: (i) take a credit card from another, or from the possession, custody, or control of another without the consent of the cardholder; or (ii) with knowledge that a credit card has been taken under the circumstances described in item (i) of this paragraph, receive the credit card with the intent to use it or sell or transfer it to another who is not the issuer or the cardholder.

(2) A person who violates this subsection is guilty of credit card theft. (d) Receiving credit card with knowledge of credit card theft or other violations.—A person other than the issuer may not receive a credit card that the person knows was taken or retained under circumstances that constitute: (1) credit card theft[.] (4) Analysis (a) Robbery Returning to the instant case, viewing the evidence in the light most favorable to the State, we conclude that there was sufficient evidence to support the conviction for robbery ³⁹² because appellant acted “in such a way that would put an ordinary, reasonable person in fear of bodily harm.” Spencer, 422 Md. at 432 , 30 A.3d 891 (citation omitted). Appellant told Mellott “to stand in a certain spot” and to keep her hands above the counter, where he could see them. Whenever Mellott moved her hands, appellant became “hostile.” Although Mellott was not supposed to charge a credit card number without seeing the customer’s credit card or identification—and Mellott “continuously asked [appellant] for his ID telling him [she] could not do it”—appellant “kept saying, ‘You’re going to do this’ ” and told Mellott that she “had to do it.” According to Mellott, appellant’s voice was very “angry” and “very strong and loud.

He was very demanding of [her] to do exactly what he said. Not to leave the area.” Because of appellant’s actions, Mellott was “scared for [her] life” and did not feel that she was free to leave the area. Appellant told Mellott: “You typed in the wrong number. Give it to me.

I’ll do it[,]” when Mellott entered the credit card number incorrectly. Appellant told Screen, “[d]on’t waste the energy, hang up the phone[,]” when the manager, Screen, called the credit card company. Appellant’s actions were far beyond those of what he describes on brief as “an annoyed, rude and demanding customer.” According to Screen—who had been working at the store since 1999 and had dealt with difficult customers before— appellant went beyond being a difficult customer. Although a rude customer might insist that a sales associate ring up a transaction, appellant told Mellott “to stand in a certain spot” and to keep her hands above the counter, where appellant could see them.

Mellott could reasonably have believed that appellant possessed a weapon,