Moore v. State

ALPERT, J. Appellant, Rodney Taureen Moore, was indicted in the Circuit Court for Baltimore County, Maryland, and charged with attempted first degree murder, first degree assault, armed robbery, and various handgun offenses, including illegal possession of a regulated firearm by a person previously convicted of a disqualifying offense, pursuant to Md.Code (2003), § 133(c)(1)(H) of the Public Safety Article. (“P.S.”) On February 13, 2008, appellant made a motion in limine requesting the circuit court to determine, as a matter of law, whether this illegal possession statute applied to an inoperable handgun. After hearing argument, the circuit court denied appellant’s motion. Thereafter, appellant entered a not guilty plea on an agreed statement of facts, and the circuit court found appellant guilty of illegal possession of a regulated firearm, with the remaining counts nol prossed.

Appellant was then sentenced to five years without possibility of parole. Appellant timely appealed, and presents two questions for review, which we have rephrased as follows: 1. Did the trial court correctly determine that operability of a firearm is not a prerequisite to a conviction of illegal possession of a regulated firearm? 2. Was the evidence sufficient to sustain appellant’s conviction of illegal possession of a regulated firearm? 1 For the following reasons, we shall affirm. ⁹³ BACKGROUND Appellant was charged with a number of offenses in connection with a robbery and shooting that took place in Baltimore County on July 5, 2007.

Among other charges, appellant was charged pursuant to P.S. § 5-138(c), with illegal possession of a regulated firearm by a person previously convicted of a disqualifying offense. On February 13, 2008, appellant made a motion in the circuit court requesting the court to determine as a matter of law whether a conviction under that statute required proof of the operability of the firearm. Defense counsel argued that P.S. § 5—133(c) did not address operability, unlike the pertinent handgun offenses under the Criminal Law Article. See Md.Code (2002, 2008 Supp.), §§ 4-201-4-209 of the Criminal Law Article (“C.L.”).

Defense counsel made clear that he did not want the circuit court to decide whether the firearm recovered in this case was operable or inoperable as that would be an issue for the finder of fact. After hearing argument, the circuit court determined that the underlying issue required it to interpret P.S. § 5—101(h), regarding the definition of a “firearm.” 2 The court concluded that the definition of a firearm provided in Section 5—101(h) was unambiguous, and under the plain and ordinary meaning, a “firearm means a weapon that expels, is designed to expel or may readily be converted to expel a projectile.” The court denied the motion to exclude the gun, stating: “So I find that, for there to be a conviction under Section 5-133 of the Public Safety Article, the handgun does not have to be operable when in possession of the defendant for the crime to be committed.” Thereafter, on February 21, 2008, appellant entered a not guilty plea on an agreed statement of facts. The parties ⁹⁴ agreed the evidence would show that this case concerned a robbery and shooting in Baltimore County that occurred on July 5, 2007. During the course of the ensuing investigation, appellant was initially implicated in the underlying offense, and a search warrant was executed at appellant’s residence.

Pertinent to the issue on appeal, the parties agreed: When the tactical squad entered, they found this defendant, Rodney Moore, and his girlfriend in bed in the master bedroom, and they also recovered a handgun that was under the bed where the defendant was sleeping. They described the gun as in close proximity to this defendant. The gun recovered was a .32 caliber revolver, Harrington and Richardson, Model II. It was a hinge frame revolver.

It did bear a proper serial number. The detectives also recovered underneath the bed a shell casing, a fired casing and projectile. Both of those items were wrapped in a paper towel under the very same bed. Additionally, when the handgun was recovered, detectives checked it to make sure it was safe, and they did find that it had one loaded round in the cylinder.

Those items were properly seized and packaged and sent to the lab for analysis additionally. This defendant, Rodney Moore, was lawfully arrested. At that point, he also had been advised of his Miranda rights. The handgun had been sent for more forensic examination to the Baltimore County crime lab.

Michael Thomas, a firearms examiner, did analyze both the handgun, as well as the fired casing and the fired projectile. Mr. Thomas’s findings, specifically with regard to the handgun, was that it was defective. Though defective, it was tested and found to fire. Mr. Thomas, for his own safety, replaced a latch on the handgun that was cracked in order to test fire the gun.

Once he did so, it did. It was found to properly function and fire. ■If Mr. Thomas were called to testify, he would be offered as an expert in forensic or in firearm identification. He ⁹⁵ would indicate that he, although defective, he did essentially fix the handgun for his own safety. He would indicate, if he would not have fixed the handgun and test fired it, the gun would have gone off, but it could have exploded or the shell casing could have come back and hit him in the head, and that was reason for fixing the gun, and that is for his own safety.

The shell casing that was recovered at the scene was also analyzed. It was found to have been fired from that very same handgun, the recovered handgun. In terms of that fired projectile recovered from the scene, Mr. Thomas could not make any determination whether that projectile was or was not fired from that handgun. Appellant waived his rights and told police that the gun belonged to a friend.

The parties also agreed to the following: [T]he defendant, on May 5th, 2005, was convicted of a crime which prohibits him from possessing a regulated firearm. As I indicated, he was convicted May 5th, 2005, of possession with intent to distribute cocaine. He was convicted in Baltimore City, and his sentence was two years, suspend all but a month, probably a time served type of sentence. He is prohibited from possessing a regulated firearm.

The .32 caliber revolver in this case is a regulated firearm. It is a handgun with a barrel of less than 16 inches in length, and it expels—is designed to expel or may readily be converted to expel a projectile by action of an explosive, and at a minimum is certainly also a frame of such a weapon. The court was then informed that, during the course of the subsequent investigation, neither the victim nor other witnesses could identify appellant as being involved in the underlying crime. However, there was no dispute that the police had probable cause to search appellant’s home.

The parties also agreed to stipulate to appellant’s prior conviction. After hearing these agreed facts from the prosecutor, defense counsel offered the following additions and modifications to the agreed facts: ⁹⁶ Your Honor, by way of additions or modifications, Your Honor, in addition to the expert finding, that would have been testified to concerning the test firing of the gun, itself, the latch, itself, was repaired, actually replaced from another gun. It was taken from another gun and placed onto that gun. Also defective in the gun was what is called a recoil cap, which is where the hammer engages the back of the shell.

That was actually missing from the gun, which would cause one to fire the gun to have to clear the chamber and remove residue or bullet material that would be in there, in order to get the gun to fire again. Also, what would have been testified to was that, when test firing the gun, the actual ammunition being used in the gun in its current state was .38 automatic ammunition, the problem being the gun, itself, was a revolver. So in order for it to be test fire[d], the expert actually took a regular .38 Smith and Wesson casing made for the revolver and replaced it with an automatic bullet, making a new bullet to further ensure the safety of the test fire, itself. So the only addition or modification placed on the record or that I would like placed on the record is that the gun, in the condition in which it was found, was never test fired.

The testimony of the expert was that he believes it would have fired in some way. Whether the bullet went sideways, forward or backward is still open to conjecture. The prosecutor agreed with defense counsel’s additions and modifications, with the exception that the expert used a .32 caliber bullet in the test fire. Both parties agreed that the expert used a “smaller cartridge to reduce the stress on the gun and made a new cartridge to place in the gun.” Defense counsel further agreed that the gun “was designed, in fact, to propel a projectile.” Nevertheless, defense counsel renewed his arguments and motion from the prior hearing that operability was a consideration under P.S. § 5-133(e).

The court denied these motions and found appellant guilty of a violation of P.S. § 5-133(c). The court then sentenced ⁹⁷ appellant to the mandatory minimum of five years without possibility of parole. This appeal followed. DISCUSSION I. Appellant maintains that the circuit court erred because, he contends, in order to be convicted under P.S. § 5-133(c), the State must prove operability of the firearm.

The State disagrees, averring that the plain language of the statute defining a firearm, P.S. § 5-101(h), does not include any requirement that the firearm must be operable. Although appellant asked the circuit court to decide a threshold legal issue by way of a motion in limine to exclude the gun recovered in this case, essentially, appellant asked the court to first decide the legal sufficiency of the evidence before addressing, in a later hearing, whether the underlying facts could sustain a conviction under P.S. § 5-133(c). In reviewing the sufficiency of the evidence following an action tried without a jury, Maryland Rule 8-131(c) provides: When an action has been tried without a jury, the appellate court will review the case on both the law and the evidence. It will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and will give due regard to the opportunity of the trial court to judge the credibility of the witnesses.

Further, following a bench trial, the test for sufficiency of the evidence is whether that evidence, if believed, directly or inferentially permits the court to be convinced, beyond a reasonable doubt, of the defendant’s guilt. State v. Smith, 374 Md. 527, 533-34 , 823 A.2d 664 (2003); accord State v. Stanley, 351 Md. 733, 750 , 720 A.2d 323 (1998). In considering the legal sufficiency of the evidence following a non-jury trial, the appellate court must determine whether “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” State v. ⁹⁸ Albrecht, 336 Md. 475, 479 , 649 A.2d 336 (1994) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979) (emphasis in original)). “When the trial court’s order ‘involves an interpretation and application of Maryland statutory and case law, our Court must determine whether the lower court’s conclusions are legally correct under a de novo standard of review.’ ” Gray v. State, 388 Md. 366, 374-75 , 879 A.2d 1064 (2005) (quoting Nesbit v. GEICO, 382 Md. 65, 72 , 854 A.2d 879 (2004)). Here, appellant was charged in Count 9 of the indictment with illegal possession of a regulated firearm as enumerated in P.S. § 5—133(c)(l)(ii).

That statute states: (c) Penalty for possession by person convicted of crime of violence.— (1) A person may not possess a regulated firearm if the person was previously convicted of: (i) a crime of violence; or (ii) a violation of § 5-602, § 5-603, § 5-604, § 5-605, § 5-606, '§ 5-607, § 5-608, § 5-609, § 5-612, § 5-613, or § 5-614 of the Criminal Law Article. P.S. § 5-133(c). A “regulated firearm” is defined as a “handgun” or a firearm that is one of any number of delineated assault weapons. P.S. § 5-101(p).

A “handgun” is defined as “a firearm with a barrel less than 16 inches in length,” as well as “signal, starter, and blank pistols.” P.S. § 5-101(n). This last definition leads us to the definition of a “firearm” which is provided in P.S. § 5-101(h), as follows: (h) Firearm.— (1) “Firearm” means: (i) a weapon that expels, is designed to expel, or may readily be converted to expel a projectile by the action of an explosive; or (ii) the frame or receiver of such a weapon. ⁹⁹ (2) “Firearm” includes a starter gun. P.S. § 5-133(h). The issue presented is one of statutory construction.

The Court of Appeals has stated: We have stated the controlling principles of statutory construction so often that only the briefest exposition is necessary. Our predominant mission is to ascertain and implement the legislative intent, which is to be derived, if possible, from the language of the statute (or Rule) itself. If the language is clear and unambiguous, our search for legislative intent ends and we apply the language as written in a commonsense manner. We do not add words or ignore those that are there.

If there is any ambiguity, we may then seek to fathom the legislative intent by looking at legislative history and applying the most relevant of the various canons that courts have created. Downes v. Downes, 388 Md. 561, 571-72 , 880 A.2d 343 (2005); see also Schisler v. State, 394 Md. 519, 535 , 907 A.2d 175 (2006) (“where an order [of the trial court] involves an interpretation and application of Maryland constitutional, statutory or case law, our Court must determine whether the trial court’s conclusions are ‘legally correct’ under a de novo standard of review”). The starting point for statutory interpretation is the plain language of the statute itself. See Barbre v. Pope, 402 Md. 157, 172 , 935 A.2d 699 (Md.2007) (“We begin our analysis by first looking to the normal, plain meaning of the language of the statute, reading the statute as a whole to ensure that ‘no word, clause, sentence or phrase is rendered surplusage, superfluous, meaningless or nugatory’”) (citations omitted); see also State v. Brantner, 360 Md. 314, 320 , 758 A.2d 84 (2000) (“This requires reading and interpreting the entire statute, neither adding, nor deleting, words in order to give it a meaning not otherwise evident by the words actually used”).

Further, where the words of the statute are clear and unambiguous, there usually is no need to go further in construing the statute. See Derry v. State, 358 Md. 325, 335 , 748 ¹⁰⁰ A.2d 478 (2000) (“If the words of a statute clearly and unambiguously delineate the legislative intent, ours is an ephemeral enterprise: we need investigate no further but simply apply the statute as it reads”); see also Gargliano v. State, 334 Md. 428, 435 , 639 A.2d 675 (1994) (“If the language of the statute is plain and clear and expresses a meaning consistent with the statute’s apparent purpose, no further analysis is ordinarily required”). The definition of “firearm” provided in P.S. § 5-101(h) includes “a weapon that expels, is designed to expel, or may readily be converted to expel a projectile by the action of an explosive.” P.S. § 5-101(h)(l)(i). Although the words “operable” or “inoperable,” are not specifically included within this definition, the actual wording of the statute gives meaning to those same concepts.

A “weapon that expels” clearly refers to a weapon that fires a projectile, i.e., an operable weapon. The issue appellant wants us to decide is whether a weapon “designed to expel” or one that “may readily be converted to expel” also only refers to operable weapons. “Ordinary and popular understanding of the English language dictates interpretation of terminology within legislation.” Deville v. State, 383 Md. 217, 223 , 858 A.2d 484 (2004). Consequently, “[w]e may consult a dictionary to discern the generally understood meaning of a word.” Hackley v. State, 161 Md.App. 1, 14 , 866 A.2d 906 , aff'd, 389 Md. 387 , 885 A.2d 816 (2005). The ordinary meaning of “designed,” means: “a.

Marked out, appointed, designate, b. Planned, purposed, intended. c. Drawn; outlined, formed, fashioned, or framed according to design.” 4 The Oxford English Dictionary, p. 521 (2d ed. 1989) (“O.E.D.”). “Designed” also means: “done, performed, or made with purpose and intent often despite an appearance of being accidental, spontaneous, or natural.” Webster’s Third New International Dictionary of the English Language, p. 612 (2002) (“Webster’s ”). Considering this, a weapon “designed to expel” means one planned, purposed, or intended to expel a projectile by an explosive.

Whether that weapon does or does not actually ¹⁰¹ expel a projectile is of no consequence, so long as that weapon was originally fashioned or framed with that purpose in mind. Therefore, we conclude that operability is not a requirement where a firearm is a weapon designed to expel a projectile. As for a weapon that “may readily be converted to expel,” the definition of “converted” includes “[cjhanged into something else,” 3 O.E.D., at 873, or “c (1): to change or turn from one use, purpose, or function to another ... (2): to remodel in order to accommodate to a new manner of operation or change from one type to another ...” Webster’s, at 499. “Readily” means “in a ready manner ... a: with prompt willingness ... b: with fairly quick efficiency: without needless loss of time: reasonably fast ... c: with a fair degree of ease: without much difficulty: with facility: easily ...” Webster’s, at 889, as well as “[pjromptly, in respect of the time of the action; quickly, without delay; also, without difficulty, with ease or facility.” 13 O.E.D., at 264.

Based on this, a weapon that “may readily be converted to expel” is one that promptly, easily and without much difficulty can be changed or turned into a weapon that may expel a projectile by the action of an explosive. This might include a previously inoperable weapon. Thus, this provision also does not require proof of operability before the weapon is considered a firearm under P.S. § 5—101(h). Finally, under the statute, a “firearm” may also simply be “the frame or receiver of such a weapon.” P.S. § 5-101(h)(l)(ii).

Clearly, this subsection does not depend upon proof of operability of the weapon. 3 Accordingly, under the plain and ordinary meaning of the words in Section 5—101(h), proof that a weapon is a firearm ¹⁰² does not depend on a showing that the weapon is operable. Even an inoperable weapon that is “designed to expel” or one that “may readily be converted to expel” a projectile via an explosive, is included within the definition of a “firearm” under Subtitle 1, Title 5, of the Public Safety Article (“Regulated Firearms”). Moreover, although our analysis could end here because the statute is not ambiguous, we also conclude that the legislative history supports our interpretation. See Melton v. State, 379 Md. 471, 476 , 842 A.2d 743 (2004) (“the cardinal rule of statutory interpretation is to ascertain and effectuate the intention of the legislature”) (citations omitted).

The Revisor’s Note to P.S. § 5-101(h) indicates that “[t]his subsection is new language derived without substantive change from former Art. 27 § 441(i).” Former Section 441(i) provided as follows: (i) “Firearm” means: (1) Any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; or (2) The frame or receiver of any such weapon. Md.Code (1957, 1996 Repl.Vol.), § 441(i) of Article 27 (superseded). Section 441(i) was added as part of the Maryland Gun Violence Act of 1996. See 1996 Md. Laws, chs. 561, 562.

Relevant to our discussion, one of the purposes of that Act included “revising, reorganizing, and clarifying certain laws pertaining to the sale, rental, or transfer of certain regulated firearms by certain individuals.” 1996 Md. Laws, eh. 561, p. 3140.