Parker v. State

HOLLANDER, Judge. In an incident that occurred on November 29, 2005, Omar Parker, appellant, 1 threatened Kya Hicks with a gun. Appel ⁴⁰⁴ lant was arrested on February 17, 2006, with respect to that incident. Following a trial in May 2007, a jury in the Circuit Court for Baltimore City convicted Parker of second-degree assault, in violation of Md.Code (2002 Repl.Vol., 2005 Supp.), § 3-203 of the Criminal Law Article (“C.L.”), and retaliation for testimony, in violation of C.L. § 9-303. 2 The court sentenced appellant to five years’ incarceration for second-degree assault and, pursuant to C.L. § 9-303(e)(2), to a concurrent term of twenty years for retaliation.

This appeal followed. Appellant presents three questions for our review. Recasted and reordered, they are: 1. Did the trial court err by imposing a sentence of twenty years for the crime of retaliation? 2.

Did the trial court err or abuse its discretion in limiting cross-examination of the State’s key witness? 3. Did the trial court err or abuse its discretion in declining to allow character evidence from a witness who was not in attendance? 4. If preserved, did the trial court err in admitting prejudicial testimony that the victim was placed in witness protection? For the reasons set forth below, we shall affirm appellant’s convictions but vacate his sentence for retaliation and remand for resentencing.

FACTUAL AND PROCEDURAL BACKGROUND At trial, the State moved in limine to exclude evidence of a fire in Hicks’s apartment that occurred in May 2005, which resulted in Hicks’s temporary loss of custody of her children. The State also sought to exclude evidence of various complaints that Hicks made to the police “against numerous different people,” which did not result in charges against them. The court granted the State’s motions, but ruled that ⁴⁰⁵ appellant could “ask Hicks if the reason she’s telling this situation is because she blames [appellant] for her children being taken away from her without allusion to the fire.” Hicks testified that she lived in an apartment on Lennox Street in Baltimore City, located in a neighborhood that “was really drug infested.” She elaborated: “Meaning that drug dealers would stand in front of my doorway, in front of my kids [’] window, outside preying, selling drugs in front of our kids.” Hicks explained that she thought they were drug dealers because she saw “them serve a couple people .... giving things in little baggy’s [sic] or clear bottles, little tiny bottles,” and she believed the “things” to be drugs. She added that the drug dealing occurred “[r]ight by [her] doorway,” inside the apartment building.

Hicks recounted that between 11 p.m. and midnight on May 23, 2005, she awoke to the sound of a gunshot “coming through [her] son’s bedroom window.” She “seen a hole through the window and [she] looked over to the wall and [she] seen the hole through the wall.” Hicks called 911. The State entered photographs of the room and the window into evidence. When the prosecution asked Hicks how she “handl[ed] the drug dealers” before the May 2005 incident, she replied that she was “[Reporting them to the police and the rental office.” She recalled that the police would respond in a marked patrol car and, “[ojnce the police got there, [the drug dealers] would run.” With respect to the events of November 29, 2005, Hicks stated: “I was coming home from a class I had which got out at twelve o’clock[ 3 ] so I got home like twelve thirty ... and seen about thirty junkies in front of my door.” She asked the people “to move” so that she could get into her apartment. She identified appellant as one of the persons who was standing by her steps.

According to Hicks, she had seen Parker outside her apartment previously, “selling to junkies” and ⁴⁰⁶ “[g]iving out testers ... samples of the ... drug product.” The following colloquy is pertinent: [PROSECUTOR]: ... Now going back to November twenty-ninth of 2005, you saw Mr. Parker and thirty junkies in front of your door. What did you do? [HICKS]: When I asked them to move he said, “Bitch wait, don’t rush me. I’ll move when I’m finished.” I stated wait right there, I have something for you.

He said, “You go into the house and call the police, I’ll shoot through your window like I done the first time.” [PROSECUTOR]: What did you believe he meant by that? [HICKS]: Meaning he was the one who shot through my window [in May of 2005]. [PROSECUTOR]: Okay, did Mr. Parker display anything when he said this? [HICKS]: Yes, a gun. [PROSECUTOR]: Okay. And how did he display it? [HICKS]: He opened up his coat and I seen a gun in his waistband. Hicks described the weapon as a “little gun” with a silver handle, sticking out of the waistband of appellant’s pants. When she saw it, Hicks “ran into the house and called the police.” Hicks claimed that she was “[s]cared of my life .... [b]ecause he was a drug dealer and he said he was going to shoot through my window again.” On cross-examination, the following ensued: [APPELLANT’S COUNSEL]: Now Mam, you stated on direct examination that there was an argument with my client, is that right? [HICKS]: Yes. [APPELLANT’S COUNSEL]: And I believe the words that you used was um you stated he said I have something for you, is that right? [HICKS]: No. I stated I had something to say.

Meaning I was going to call the police because I was known for around here to call the police. ⁴⁰⁷ [APPELLANT’S COUNSEL]: But you said you had never actually talked to anybody in the community or any drug dealers. [HICKS]: Talk you mean conversation. I was in an argument and I don’t consider that talking. Baltimore City Police Officer Karl D. Hayes responded to Hicks’s 911 call in May 2005. He stated that the bullet came in through the window and “lodged in the wall.” But, he did not arrest anyone for the incident, because “[n]o one was at the scene and no one actually visually saw anyone commit this offense.” At the close of the State’s case, defense counsel moved for acquittal.

With regard to the gun charges, defense counsel argued that “no gun was found.” With respect to the assault charges, he asserted that there was “no description of shooting any specific person” and “no actual threat to an individual.” As to the retaliation charge, the following ensued: [APPELLANT’S COUNSEL]: [Hicks] never testified that she actually spoke with anybody in the community about anything about calling the police. There’s no testimony that the police were ever called on several occasions besides hers. There’s no actual documentation of any of it.... [N]obody knew that [she called the police multiple times]. People have to know to retaliate to something and there was no testimony. [PROSECUTOR] ... [Appellant’s] own words indicate that he knew that she was calling the police.

The court denied the motion. Appellant testified that Hicks “live in the neighborhood” and he first had contact with her when he “saved her kids” in May 2005. 4 He denied that he had any contact with Hicks after that time. ⁴⁰⁸ The prosecutor showed appellant Detective Schuler’s notes from an oral statement that appellant gave the police on February 16, 2006, attached to a sheet that Parker signed under the statement: “I am willing to answer questions, and I do not want any attorney at this time. My decision to answer questions without having an attorney present is free and voluntary on my part.” 5 Appellant agreed that he had signed the statement. The following colloquy is pertinent: [PROSECUTOR]: All right, and there was a question at the end of that [conversation].

Did you know about her windows being shot out? And your response was “I heard about it but I didn’t do shit.” [APPELLANT]: I never said that. [PROSECUTOR]: Do you remember the detectives asking you about it? [APPELLANT]: Yea I tell them that I don’t know nothing about nothing. That’s what I told them. Appellant denied that he showed Hicks a gun on November 29, 2005.

Indeed, appellant maintained that he did not know Hicks’s name and had never talked to her. The following exchange is pertinent: [PROSECUTOR]: You knew the people in the neighborhood didn’t like her? [APPELLANT]: I mean she didn’t like people in the neighborhood. She’d chase people.... [PROSECUTOR]: You knew people in the neighborhood didn’t like her, correct? * * * [APPELLANT]: No I don’t [know] that people didn’t like her. ⁴⁰⁹ [PROSECUTOR]: You knew her window was shot out, right? [APPELLANT]: No, I didn’t. She beefs [ 6 ] with people.

She’s the one with, that chased people around like I said. Appellant admitted that he pleaded guilty to drug distribution in 2004 and possession with intent to distribute in 2006, because he “was guilty.” The defense rested and renewed its motion for acquittal, incorporating its prior arguments. The court again denied the motion. We shall include additional facts in our discussion.

DISCUSSION I. Appellant challenges his sentence for retaliation under C.L. § 9-303, claiming the court improperly imposed an enhanced sentence because a jury should have determined the underlying factual issues. C.L. § 9-303 provides, in part: § 9-303. Retaliation for testimony. (a) Prohibited.—A person may not intentionally harm another, threaten to harm another, or damage or destroy property with the intent of retaliating against a victim or witness for: (1) giving testimony in an official proceeding; or (2) reporting a crime or delinquent act.

(c) Penalty.—(1) Except as provided in paragraph (2) of this subsection, a person who violates this section is guilty ⁴¹⁰ of a misdemeanor and on conviction is subject to imprisonment not exceeding 5 years or a fine not exceeding $5,000 or both. (2) If the official proceeding or report described in subsection (a) of this section relates to a felonious violation of Title 5 of this article[ 7 ] or the commission of a crime of violence as defined in § 14-101 of this article, or a conspiracy or solicitation to commit such a crime, a person who violates this section is guilty of a felony and on conviction is subject to imprisonment not exceeding 20 years. We pause to review relevant facts. Appellant was charged, inter alia, with witness retaliation.

The Statement of Charges, dated February 15, 2006, stated that appellant “did intentionally harm/damage or destroy • property with the intent of retaliating against Kya Hicks[,] a victim or witness!,] for giving testimony in an official proceeding/reporting a crime or delinquent act,” in violation of C.L. § 9-303. 7 8 9 The Statement of Charges also indicated that the penalty for violation of. the statute was a maximum of five years’ imprisonment and/or a $5,000 fine. The State filed a “Criminal Information” on April 11, 2006. Under the heading “Intimidate/Influence a Witness,” it averred that appellant did by THREAT, try to INFLUENCE and INTIMIDATE Keya [sic] Hicks, a VICTIM and WITNESS, for reporting Drug Activity that is a felony in violation of Title 5 of Criminal Law Article Section 9—303(a)(2) of the Annotated Code of Maryland; against the peace, government and dignity of the State. [CR 9—303(a)(2) ] [ 9 ](9-303(c)(2)[) ]. ⁴¹¹ At the conclusion of the evidence, the court instructed the jury, in part: Lastly, the defendant is charged with retaliation of testimony. In order to convict the defendant with retaliation of testimony, the State must prove; (I) that the defendant intentionally harmed another or threatened to harm another, or damaged or destroyed property and; (2) that the defendant did so with the intent of retaliating against the victim or witness because the victim or witness either gave evidence in an official proceeding or reported a crime or delinquent act.

Appellant did not object to the jury instruction. At sentencing, the State claimed that appellant “was charged under the felony retaliation for testimony” and faced a maximum penalty of twenty years in prison. The defense claimed that the maximum sentence was five years. Noting that appellant “was charged under C2 not Cl,” the court stated that “the penalty that exists under the charge of retaliation, as charged in this particular case, the maximum sentence is twenty years.” It said: “I’m going to sentence him [under] the felony retaliation statute.

If you have an objection you should now make that objection.” Appellant’s counsel replied: “No, no, your Honor.” Thereafter, the court sentenced appellant to five years of incarceration for second-degree assault, and to a concurrent term of twenty years for retaliation. As noted, appellant contends that “the trial court erred in sentencing appellant pursuant to a sentencing enhancement that was not submitted to or passed upon by the jury.” He argues: Having been convicted of the crime, subsection (c)(1) provides a maximum sentence of five years. Subsection (c)(2) contains a sentencing enhancement providing that if the underlying statutory violation “relates to a felonious violation of Title 5 of this article or the commission of a crime of violence as defined in § 14-101 of this article, or a conspiracy or solicitation to commit such a crime,” the maximum ⁴¹² sentence is 20 years. Appellant was sentenced to 20 years incarceration.

The jury was never instructed that it had to find the sentencing enhancement applicable beyond a reasonable doubt and sentencing Appellant to 20 years incarceration violates Maryland common law as well as Maryland and Federal due process principles. Quoting Wadlow v. State, 335 Md. 122, 129 , 642 A.2d 213 (1994), discussed infra, appellant asserts: “ ‘[Wjhere the 'legislature has prescribed different sentences for the same offense, depending upon a particular circumstance of the offense, [the courts] have held that the presence of that circumstance must be alleged in the charging document, and must be determined by the trier of fact applying the reasonable doubt standard.’ ” In appellant’s view, the court erred by failing to instruct the jury as to its duty to determine “the facts necessary to establish the sentencing enhancement,” as required by Maryland common law. Appellant also contends that the enhancement of his sentence “violates due process principles” under Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), and its progeny. In his view, “the trial court did not have in its arsenal the option of the twenty year sentencing enhancement,” because the court did not instruct the jury to determine whether “the sentencing enhancement contained in [§ 9-303](c)(2) existed beyond a reasonable doubt.” In addition, appellant contends that “the trial court failed to instruct the jury on every element of the crime charged.” In particular, he claims that the court “did not instruct the jury that it must find that ‘the official proceeding or report [that was the subject of retaliation] relates to a felonious violation of Title 5 ... or the commission of a crime of violence as defined in § 14-101 ... or a conspiracy or solicitation to commit such a crime.’ ” He posits: “By failing to instruct the jury on each and every element of the crime with which he was charged, and ultimately sentenced under, the court violated Appellant’s due process right that the State ‘prove every ingredient of an ⁴¹³ offense beyond a reasonable doubt.’ ” (Citation omitted.) Parker adds: “The trial court did not instruct the jury on an essential element of the crime, i.e. the facts that had to be established to invoke the 20 year sentencing enhancement.

The omission of this essential element constituted reversible plain error.” The State responds that “it is unclear that the Legislature created two separate offenses when it imposed a harsher penalty for witness retaliation arising out of drug felonies and crimes of violence.” It posits: In the instant case, the State was not obligated to prove that Parker was aware that Hicks had made reports of drug felonies, as such; only that he was retaliating for the reports that Hicks had made. That the specific crimes she reported (drug trafficking ...) were felonies under Title 5 of the Criminal Law Article could be determined under Maryland law by the sentencing judge. Further, the State claims: “Parker was specifically charged with retaliating against a witness to a drug felony ... and sufficient evidence was presented to a jury to allow it to determine that it was Hicks’s reports of drug felonies that led to the threats and intimidation against her.” Moreover, it points out that “there was no claim that Parker was motivated by anything other than Hicks’s police complaints regarding drug felonies!'.']” Instead, asserts the State, appellant’s defense focused on agency. Alternatively, the State maintains that, “even if the nature of the crime reported is an element of the crime of retaliation,” appellant’s jury instruction argument is unpreserved, because “Parker did not seek a specific instruction on that point, nor did he object to its absence.” As to the Apprendi claim, the State points out that “Parker did not contest the State’s evidence as to why Hicks was the victim of retaliation.” It reiterates that his “defense was that [Hicks] incorrectly identified him as the person who attempted to retaliate against her.” While distinguishing the facts of Apprendi, 530 U.S. 466 , 120 S.Ct. 2348 , in which the defendant did not deny criminal agency, the State “recognizes that, as in Apprendi , the instant case allows for an increased sentence to ⁴¹⁴ be imposed based upon the specific motivation of the defendant who committed the criminal act.” Noting that Maryland courts have not yet considered whether Apprendi applies to C.L. § 9-303, it.concedes: “If this Court were to find that Apprendi applied, the matter should be remanded for resentencing under § 9-303(c)(l).” 10 As we have seen, the court sentenced Parker under “the felony retaliation statute” after generally instructing the jury on the crime of retaliation, but without instructing the jury to determine whether Hicks’s complaints related to drug activity, in violation of Title 5 of the Criminal Law Article.

The question here is whether appellant was entitled to have a jury determine the applicability of the enhancement provision of C.L. § 9-303(c)(2), and, if so, whether the burden fell on the State to make that request. Put another way, we must first consider whether appellant’s failure to raise the matter constituted a waiver of his complaint. Clearly, if appellant believed that he could be sentenced to enhancement based only upon a jury determination of the underlying elements, he would have no reason to ask for the jury to make that determination; the failure to have the jury do so would preclude imposition of an enhanced sentence. 11 Logic suggests that it was incumbent on the State, as the party seeking enhancement, to ask for a jury determination of the predicate facts. Therefore, we conclude that appellant did not waive his right to challenge imposition of the enhanced sentence merely because he did not ask the court to submit that issue to the jury. 12 ⁴¹⁵ Moreover, a trial court “may correct an illegal sentence at any time” under Md. Rule 4-845(a).

As the Court said in Walczak v. State, 302 Md. 422, 427 , 488 A.2d 949 (1985), “when the trial court has allegedly imposed a sentence not permitted by law, the issue should ordinarily be reviewed on direct appeal even if no objection was made in the trial court.” See Stubbs v. State, 406 Md. 34 , 48 n. 1, 956 A.2d 155 (2008); Jones v. State, 384 Md. 669, 678-79 , 866 A.2d 151 (2005); Fisher v. State, 367 Md. 218, 293 , 786 A.2d 706 (2001); Moore v. State, 163 Md.App. 305, 313-14 , 878 A.2d 678 (2005). An illegal sentence includes a “sentence [that] is not a permitted one for the conviction upon which it was imposed and, [therefore], is intrinsically and substantively unlawful.” Chaney v. State, 397 Md. 460, 466-67 , 918 A.2d 506 (2007); see Ingram v. State, 179 Md.App. 485, 510 , 947 A.2d 74 (2008) (same). We conclude that the court erred in sentencing appellant to twenty years for retaliation, because the issue pertaining to sentencing enhancement was not submitted to the jury. We explain.

The framework for our review begins with Apprendi, 530 U.S. 466 , 120 S.Ct. 2348 . It involved a challenge to New Jersey’s “hate crime” law, which provided that, upon a defendant’s conviction of an underlying crime, the defendant was eligible for “an ‘extended term’ of imprisonment if the trial judge [found], by a preponderance of the evidence, that ‘[t]he defendant in committing the crime acted with a purpose to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation or ethnicity.’ ” Id. at 468-69 , 120 S.Ct. 2348 (quoting statute). At sentencing, Apprendi unsuccessfully challenged the constitutionality of the statute. Id. at 471 , 120 S.Ct. 2348 . ⁴¹⁶ The Supreme Court subsequently invalidated the statute, id. at 491-92 , 120 S.Ct. 2348 , concluding that the Due Process Clause of the Fourteenth Amendment requires that, in state prosecutions, “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490 , 120 S.Ct. 2348 .

The Supreme Court observed, id. at 482-83 , 120 S.Ct. 2348 : The historic link between verdict and judgment and the consistent limitation on judges’ discretion to operate within the limits of the legal penalties provided highlight the novelty of a legislative scheme that removes the jury from the determination of a fact that, if found, exposes the criminal defendant to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone.1 ] In reaching its conclusion, the Apprendi Court differentiated between the terms “sentencing factor” and “element,” id. at 494 n. 19, 120 S.Ct. 2348 , remarking that in McMillan v. Pennsylvania, 477 U.S. 79 , 106 S.Ct. 2411 , 91 L.Ed.2d 67 (1986), it “coined the term ‘sentencing factor’ to refer to a fact that was not found by a jury but that could affect the sentence imposed by the judge.” Apprendi, 530 U.S. at 485 , 120 S.Ct. 2348 . The Apprendi Court elaborated: “The term appropriately describes a circumstance, which may be either aggravating or mitigating in character, that supports a specific sentence within the range authorized by the jury’s finding that the defendant is guilty of a particular offense.” Id. at 494 n. 19, 120 S.Ct. 2348 . In contrast, “facts that expose a defendant to a punishment greater than that otherwise legally prescribed were ... ‘elements’ of a separate legal offense.” Id. at 483 n. 10, 120 S.Ct. 2348 . The Court explained that, “when the term ‘sentence enhancement’ is used to describe an increase beyond the maximum authorized statutory sentence, it is the functional equivalent of an element of a greater offense than the one covered by the jury’s guilty verdict.” Id. at 494 n. 19, 120 S.Ct. 2348 .

In distinguishing between a sentencing factor and ⁴¹⁷ an element, the Court indicated that “the relevant inquiry is one not of form, but of effect—does the required finding expose the defendant to a greater punishment than that authorized by the jury’s guilty verdict?” Id. at 494 , 120 S.Ct. 2348 (footnote omitted). See also Ring v. Arizona, 536 U.S. 584, 609 , 122 S.Ct. 2428 , 153 L.Ed.2d 556 (2002) (“Because Arizona’s enumerated aggravating factors [lor imposition of the death penalty] operate as ‘the functional equivalent of an element of a greater offense,’ the Sixth Amendment requires that they be found by a jury.”) (Citation omitted); Jones v. United States, 526 U.S. 227, 252 , 119 S.Ct. 1215 , 143 L.Ed.2d 311 (1999) (construing carjacking statute to include three separate offenses, with “distinct elements, each of which must be charged by indictment, proven beyond a reasonable doubt, and submitted to a jury for its verdict”). In Blakely v. Washington, 542 U.S. 296 , 124 S.Ct. 2531 , 159 L.Ed.2d 403 (2004), and United States v. Booker, 543 U.S. 220 , 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005), the Supreme Court reaffirmed Apprendi . These cases were discussed by the Court of Appeals in Grandison v. State, 390 Md. 412 , 889 A.2d 366 (2005), cert. denied, 549 U.S. 956 , 127 S.Ct. 382 , 166 L.Ed.2d 275 (2006), in which the Court of Appeals said, id. at 442, 889 A.2d 366 : Relying on the Court’s holding in Blakely , the [Booker ] Court explained that its “precedents ... make clear ‘that the “statutory maximum” for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.’ ” [Booker, 543 U.S. at 232 , 125 S.Ct. 738 ] (emphasis in original).

Accordingly, the Court reaffirmed its holding in Apprendi : “Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.” Id. at [244, 125 S.Ct. 738 ], Fisher, supra, 367 Md. 218 , 786 A.2d 706 , is also instructive. There, Mary Utley was charged and convicted of child abuse, ⁴¹⁸ in violation of Art. 27, § 35(C). Id. at 226, 279, 786 A.2d 706 . The child abuse resulted in the death of the child.

Id. at 226 , 786 A.2d 706 . At that time, “§ 35C(b)(l) authorized a maximum sentence of fifteen years for child abuse and § 35C(b)(2) authorized a maximum sentence of twenty years if the abuse resulted in the death of the victim.” Id. at 279-80, 786 A.2d 706 . Utley, who was sentenced to twenty years, id. at 279 , 786 A.2d 706 , claimed on appeal that her sentence could not exceed fifteen years, because Count II of the indictment, pertaining to child abuse, did not allege that the abuse caused the victim’s death. Id. at 280-81 , 786 A.2d 706 .

The Court of Appeals thought Utley’s point was “well taken as a matter of Maryland criminal cause pleading,” id. at 280 , 786 A.2d 706 , and thus it did not reach the due process issue under Apprendi. Id. at 282 n. 19, 786 A.2d 706 . The Court recognized that the length of the sentence could be enhanced due to the presence of “ ‘a particular circumstance of the offense,’ ” i.e., that the child died as a result of the abuse, and therefore the charging document had to allege “ ‘the presence of that circumstance,’ ” and the circumstance had to “ ‘be determined by the trier of fact applying the reasonable doubt standard.’ ” Id. at 281 , 786 A.2d 706 (quoting Wadlow, 335 Md. at 129 , 642 A.2d 213 ). Reasoning that Count II of the indictment did not allege that the abuse caused the victim’s death, and “the general reference at the conclusion of Count II to § 35C” did not “cure the problem,” id., because it did not provide “notice whether the State [was] seeking the enhanced penalty under § 35C(b)(2),” the Court vacated “that part” of Utley’s conviction “represented by the sentence” in issue, and remanded for resentencing. 13 Id. at 282, 786 A.2d 706 .

The Fisher Court relied on Wadlow, 335 Md. 122 , 642 A.2d 213 , in which the Court of Appeals analyzed Md.Code (1992 RepLVol., 1993 Supp.), Art. 27, § 286(a) and (f) (since recodified as C.L. §§ 5-602, 5-612). Section 286(a)(1), as it was then written, proscribed possession with intent to distribute a ⁴¹⁹ controlled dangerous substance. Section 286(f)(l)(ii) and (f)(3) provided that, if the substance was 448 grams or more of cocaine, then it was “mandatory upon the court to impose no less than 5 years’ imprisonment,” with additional limitations on parole. Although Wadlow’s indictment charged possession with intent to distribute “ ‘over 448 grams of cocaine, in violation of Article 27, Section 286(a)(1),’ ” it made no mention of subsection (f).

Wadlow, 335 Md. at 126 , 642 A.2d 213 (quoting indictment). The Wadlow Court held that a sentence of four years imposed under Count 1 could not be increased to five years. Id. at 134 , 642 A.2d 213 . It reasoned, id. at 128-29 , 642 A.2d 213 : In Maryland, ... we have generally drawn a distinction between sentence enhancement provisions that depend upon prior conduct of the offender and those that depend upon the circumstances of the offense.

In the former situation, involving recidivism, we have made it clear that determination of the requisite predicate facts is for the sentencing judge.... In the latter case, however, where the legislature has prescribed different sentences for the same offense, depending upon a particular circumstance of the offense, we have held that the presence of that circumstance must be alleged in the charging document, and must be determined by the trier of fact applying the reasonable doubt standard. Wadlow’s conduct fell into the category in which the statute provided for a greater sentence based on the “particular circumstance” of the amount of narcotics that the defendant possessed. See id. at 126 , 642 A.2d 213 .

The Court concluded that “when the State seeks the enhanced penalties provided by § 286(f) it must allege the necessary fact concerning the amount, and prove that fact beyond a reasonable doubt.” Id. at 132, 642 A.2d 213 . Yet, “the jury was not called upon to decide whether the amount of cocaine involved in the conviction under Count I was 448 grams or more.” Id. at 133 , 642 A.2d 213 . The Court noted that “the language of Count I” mentioned the quantity, but “the body of the count and statute citation referred only to a violation of Art. 27, § 286(a)(1),” ⁴²⁰ and the jury instructions provided: “ ‘No specific quantity is required for you to find the intent to distribute. There is no specific amount below which the intent to distribute disappears and there is no specific amount above which the intent to distribute appears.’ ” Id.

With the cases discussed above in mind, we return to C.L. § 9-303. C.L. § 9—303(c)(1) provides for a five-year maximum. But, under C.L. § 9—303(c)(2), if “the official proceeding or report” against which a defendant retaliated “relates to a felonious violation of Title 5 of [the Criminal Law] article or the commission of a crime of violence as defined in [C.L.] § 14-101,” the defendant may be sentenced to a maximum of twenty years. In the Criminal Information, appellant was charged with retaliating against Hicks “for reporting Drug Activity,” a violation of Title 5 of the Criminal Law Article, and it referred specifically to C.L. § 9—303(c)(2).

Thus, the circumstance of drug activity was alleged in the Information. Therefore, there is no issue here, as there was in Fisher , of a defective pleading. See Fisher, 367 Md. at 281 -82 & n. 19, 786 A.2d 706 (vacating sentence “in view of the Maryland common law” and remanding for resentencing where “indictment did not allege the fact that the State needed to prove in order to enhance the penalty”). Complaints of illegal drug activity are, however, “the functional equivalent of an element of a greater offense,” Apprendi, 530 U.S. at 494 n. 19, 120 S.Ct. 2348 , because this is the basis on which appellant was exposed “to a punishment greater than that otherwise legally prescribed[.]” Id. at 483 n. 10, 120 S.Ct. 2348 .

Yet, the jury was not asked to determine whether the evidence proved those facts. Rather, it was only instructed that “the State must prove ... [that appellant retaliated] because the victim or witness either gave evidence in an official proceeding or reported a crime or delinquent act.” Therefore, the jury returned a guilty verdict for “retaliation,” without deciding whether Hicks’s complaints concerned drug activity. In Apprendi, 530 U.S. at 495 , 120 S.Ct. 2348 , where the sentence enhancement increased Apprendi’s maximum sen ⁴²¹ tence from ten years to twenty years, the Supreme Court stated that “the differential here is unquestionably of constitutional significance.” In this case, appellant’s sentence quadrupled, from five years to twenty years, an increase which is also undoubtedly “of constitutional significance.” The matter of illegal drug activity was not merely a sentencing “factor.” Id. at 494 n. 19, 120 S.Ct. 2348 . Under Apprendi and its progeny, the question of whether Hicks’s complaints related to drug activity had to be “submitted to a jury, and proved beyond a reasonable doubt,” id. at 490 , 120 S.Ct. 2348 , before the judge could sentence appellant to the greater offense of retaliation for reporting drug activity.

To be sure, the jury had ample evidence as to the alleged drug activity that Hicks perceived, and it heard Hicks’s testimony that she was “reporting” the drug dealers “to the police.... ” Hicks further testified that she told appellant that she “had something to say. Meaning I was going to call the police because I was known for around here to call the police.” But, the jury was never asked to determine whether Hicks’s complaints pertained to drug activity. Rather, the jury was merely told that the State had to prove that appellant “intentionally harmed another or threatened to harm another, or damaged or destroyed property,” and that appellant “did so with the intent of retaliating against the victim ... because the victim ... reported a crime or delinquent act.” We conclude that the Due Process Clause required that the circumstances allowing for the enhanced penalty should have been “submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490 , 120 S.Ct. 2348 . That did not occur.

Therefore, we shall vacate the sentence for retaliation and remand for resentencing under C.L. § 9-303(c)(l).

II

A. Appellant argues that “the trial court erred in excluding relevant evidence and limiting cross-examination that would ⁴²² have impeached the credibility of the State’s key witness.” We pause to review additional facts. As noted, prior to the presentation of evidence the State moved in limine to exclude evidence of a fire in Hicks’s home in May 2005. The fire occurred a few days before a bullet went through Hicks’s apartment window, and resulted in Hicks’s temporary loss of custody of her children. The following colloquy is pertinent: [PROSECUTOR]: ... [T]he charges in this case are assault and handgun charges.

They arise from an incident that occurred in November of '05, but they also relate to an incident that occurred in May of '05 in which ... a bullet went through the victim’s window. The State’s theory is that this was done in retaliation for the victim calling on drug dealers that are outside her home, dealing drugs outside her home.' THE COURT: So what does that have to do with a fire? [PROSECUTOR]: It doesn’t, Your Honor, which is why the State is asking that any testimony that the Defense wants to elicit about a fire be excluded. I don’t believe it’s relevant to the case. Defense counsel responded that “approximately two days prior to the supposed[ ] shooting through the window ... there was a [grease] fire in Ms. Hicks’ house.” Appellant’s counsel indicated that “although Ms. Hicks is going to deny the fact,” appellant “kicked the door in” and rescued her two young children, who had been left unattended.

Counsel claimed that this was relevant because Hicks “was blaming” appellant for the fact that her children were temporarily removed from her care after the fire. He said: “And that’s sort of a motive for her not only to make this up, but to select my client as the person.” In addition, he argued that it was relevant because “it shows a lack of a motive, that somebody would go and save somebody’s children in a burning house and