Payne v. State

Korey Vaugh Hamilton Payne v. State of Maryland, No. 1649, September Term, 2017. Submitted on Brief: August 3, 2018. Opinion by Sharer, J. CRIMINAL PROCEDURE – MOTION TO SUPPRESS – MIRANDA PROTECTIONS – VOLUNTARINESS OF POLICE INTERVIEW – CUSTODY When asserting a violation of one’s rights under Miranda v. Arizona, 384 U.S. 436 (1966) and its progeny, it is an appellant’s burden to prove that he or she was in custody when engaging in an interview with police. In this appeal, Payne failed to satisfy his burden of proving a custodial interrogation.

He agreed to speak with police in a bedroom inside his home; he was not forced or coerced to speak with police; he was told that he was not under arrest; he was not restrained or prevented from leaving the bedroom, the interview lasted 45 minutes with only two police officers; the officers used conversational tones; and, after the conclusion of the interview and the search of the home, police left Payne’s home without arresting him. This Court agreed with the suppression court’s ruling that Payne was not in custody during his interview with police, and thus, he was not subject to a custodial interrogation. Therefore, Miranda protections were inapplicable. EVIDENCE – OTHER BAD ACTS – ADMISSIBILITY – IDENTITY EXCEPTION In addition to evidence relating to the five charged child pornography images found on a data storage device that was in a box with three other data storage devices, the State offered brief testimony that one of the data storage devices, containing child pornography, also contained a video of Payne setting up a video recorder and masturbating next to a sleeping woman.

The admissibility of other bad acts evidence requires special relevancy and is subject to the Faulkner standard, a three-step analysis to: (1) determine if the evidence falls into a recognized exception; (2) determine whether appellant was involved in the other bad act; and (3) balance whether the probative value of the evidence outweighs the danger of any unfair prejudice. State v. Faulkner, 314 Md. 630 , 634–35 (1989). Payne’s defense, asserted during opening statements and in the motion’s argument, was that the storage devices were not his but were the property of another resident of the home. The State argued in satisfaction of the first prong that the testimony of the uncharged images and private video went to the identity exception, to show the jury Payne’s identity and ownership of the data storage devices containing both child pornography and his personal non-child pornography images.

Payne conceded that the existence of the video would satisfy the second prong. This Court found the trial court’s ruling concerning relevance and the identity exception sufficient when it permitted the brief testimony of the video’s existence, but prohibited the State from displaying to the jury the video or image captured from the video. CRIMINAL LAW – STATUTORY INTERPRETATION – LEGISLATIVE INTENT – UNIT OF PROSECUTION When determining the Legislature’s intended unit of prosecution for violations of a criminal statute, we review the plain language of the statute and explore the statutory structure and legislative history. The plain language of Criminal Law Article § 11-208(a)(2) (2012) proscribes that “[a] person may not knowingly possess and intentionally retain a … visual representation showing an actual child under the age of 16 years: … engaged in sexual conduct[.]” This Court determined that the statute was clear and unambiguous in proscribing each instance of possession.

Nonetheless, this Court found support from the statutory construction, legislative history, and relevant case law from this State and other jurisdictions. This Court found significant the Legislature’s use of the term “a” throughout the statute, qualifying each reference to a proscribed item in the singular, and its use of the phrase “actual child,” denoting the importance of each singular child victim. As a result, this Court concluded that each instance of possession of an image of child pornography, as proscribed by CR § 11-208, is a discrete and independent offense and, therefore, subject to separate punishment. CRIMINAL LAW – SENTENCING – UNIT OF PROSECUTION – RULE OF LENITY When a statute is clear and unambiguous, the rule of lenity does not apply.

Because Criminal Law Article § 11-208(a)(2) (2012) was clear and unambiguous as to the Legislature’s intended unit of prosecution for violations of the statute, each of Payne’s five convictions and sentences for possession of the five charged child pornography images of different child victims were affirmed. Circuit Court for Anne Arundel County Case No. C-02-CR-16-002447 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1649 September Term, 2017 ______________________________________ KOREY VAUGH HAMILTON PAYNE v. STATE OF MARYLAND ______________________________________ Graeff, Arthur, Sharer, J., Frederick (Senior Judge, Specially Assigned), JJ. ______________________________________ Opinion by Sharer, J. ______________________________________ Filed: December 18, 2019 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2020-03-13 10:49-04:00 Suzanne C. Johnson, Clerk Having been charged with, and convicted of, five counts of possession of child pornography,1 Korey Vaugh Hamilton Payne raises three challenges to rulings of the Circuit Court for Anne Arundel County.2 In his brief, Payne asks: 1. Did the motions court err in denying [his] motion to suppress his statement? 2. Did the circuit court err, or abuse its discretion, in admitting other bad acts evidence? 3.

As a matter of first impression in Maryland, did the circuit court err in imposing separate sentences for each of five images of child pornography where each image was possessed at the same time and place? Finding neither error nor abuse of discretion by either the motions court or the trial court, we affirm the judgments of the Circuit Court for Anne Arundel County. 1 Payne was charged by information with five counts under Md. Code (2002, 2012 Repl. Vol.) Criminal Law Article (CR), § 11-208(a)(2), governing the “Possession of visual representation of child under 16 engaged in certain sexual acts,” more commonly known as possession of child pornography, which provides in relevant part: A person may not knowingly possess and intentionally retain a film, videotape, photograph, or other visual representation showing an actual child under the age of 16 years: … (2) engaged in sexual conduct[.] The statute has since been amended, as will be discussed further, infra, effective October 1, 2019. Unless otherwise noted, our references to CR § 11-208 are to the version in effect at the time of Payne’s violations, prior to the 2019 amendments. 2 Payne was convicted of five separate counts of possession of child pornography.

The trial court imposed a sentence of five years, with all but 18 months suspended on Count 1. On counts 2–5, the court imposed consecutive, but fully suspended, five-year sentences for each. The court further ordered a five-year period of probation on Payne’s release from incarceration. BACKGROUND Because our review does not implicate the sufficiency of the evidence adduced at trial, we need not recite the facts underlying the charges, other than to provide context for our discussion of the issues presented.

Whitney v. State, 158 Md. App. 519, 524 (2004) (citing Craig v. State, 148 Md. App. 670 , 674 n. 1 (2002)). See also, Teixeira v. State, 213 Md. App. 664, 666 (2013) (quoting Fitzpatrick v. Robinson, 723 F.3d 624, 628 (6th Cir. 2013)); Washington v State, 190 Md. App. 168, 171 (2010). DISCUSSION 1. Motion to Suppress Payne filed a timely motion to suppress a statement he made to police, in his home, on the day of the execution of a search warrant.

He challenges the voluntariness of the statement, asserting that he was in custody at the time and that his rights under Miranda3 and its progeny had been violated when he had unequivocally invoked his right to counsel, but the police persisted in questioning him thereafter. The Suppression Hearing The suppression court conducted a hearing on April 5, 2017. In his brief, Payne has included a summary of the testimony developed at the suppression hearing, which, in its brief, the State accepts. We reproduce the summary, with occasional non-substantive editing.4 3 Miranda v. Arizona, 384 U.S. 436 (1966). 4 Two witnesses testified at the suppression hearing—Detective Erick Patterson for the State, and Smita Topiwama, called by Payne.

Payne did not testify. 2 On July 29, 2016, Detective Erick Patterson, of the Anne Arundel County Police Department, executed a search warrant at Payne’s home in Hanover, Anne Arundel County, where Payne lived with his mother. The execution of the warrant was in connection with a child pornography investigation. Patterson was with ten other officers who were members of the child abuse unit, the sex offense unit, and the digital forensic unit. The officers knocked on the door, announced their presence, and identified themselves as county police officers with a search warrant for the residence.

Payne answered the door. The officers were dressed in Class C uniforms, consisting of navy-blue cargo work pants and a polo shirt displaying a police badge. They wore tactical or ballistic vests with “Police” on the back of the vests. They were armed with firearms, but there was no testimony that guns were ever drawn.

All the officers entered the house at about the same time. Payne was asked to step outside, where an officer stood with him while other officers went inside to determine the possibility of other occupants. Patterson testified that he did not know if Payne was handcuffed at that time. After finding no one else in the home, Patterson met Payne in the living room.

Payne was not in handcuffs and Patterson did not see Payne restrained in any way. Patterson identified himself to Payne and asked if Payne would speak with him. Patterson testified that he made Payne aware that he was not under arrest. He asked if Payne would accompany him to an upstairs bedroom for an interview.

Patterson testified that he would have allowed Payne to leave if he had asked to do so. 3 A female officer, Detective Kristine Mays,5 was present for the interview which lasted for approximately 45 minutes. According to Patterson, Payne consented to an audio recording of the interview. Neither Patterson nor Mays drew their weapons at any time, nor did Patterson raise his voice or become aggressive during the interview. Patterson testified that he made no promises or threats, nor did he offer Payne inducements in return for his statement.

He did not detect that Payne was under the influence of any substance and he did not have concerns about Payne’s mental health. Patterson advised Payne of his Miranda rights. Payne was not arrested that day and charges were not filed until October 3, 2016, more than two months later. Smita Topiwama, Payne’s neighbor, testified that, on the day of the warrant execution, she looked out from her window, and saw five or six police cars, and officers “run into the [sic] Korey’s house.” Her kitchen window faces Payne’s front door.

She saw officers taking pictures of the house before they went to the door. Significantly, she testified that she saw an officer place Payne in handcuffs. The Ruling After hearing the testimony and arguments of counsel, the court held the matter sub curia and issued a Memorandum Opinion and Order on April 24, 2017, ruling that Payne was not in custody at the time he talked with police. Therefore, the court concluded, the question involving the right to counsel was not implicated. 5 Although transcribed from the suppression hearing phonetically as “Maze,” the record and subsequent trial transcripts identify her as Detective “Kristine Mays.” 4 In its Memorandum Opinion, the court indicated a thorough review of the testimony, made findings of fact, to which it applied appropriate case law, both Maryland and federal, and concluded that Payne had not met his burden of proving that he was in custody for purposes of Miranda applicability: Before the questioning occurred …, the officers asked the Defendant to go outside while they conducted a search of his home.

At that [time], the Defendant had no obligation to stay and could have left the scene. Additionally, Detective Patterson asked the Defendant if he would speak with him, he was not ordered to do so. Once the Defendant agreed, the Defendant led the officers to a bedroom on the third floor, he was not escorted by the Officers or required to comply. Further, only two officers were present in the bedroom at the time of questioning; one was a female detective who sat on the floor, and another was Detective Patterson who sat on a piece of furniture, not blocking or locking the door.

Although Detective Patterson read the Defendant his Miranda rights, he testified at the suppression hearing that he always gives Miranda warnings and he did not believe the Defendant to be in custody or under arrest. Additionally, after listening to the recording of the interview, the conversation was calm, the officers did not ask leading questions, there were no threats, inducements, or any promises made to the Defendant, the conversation only lasted about 45 minutes, and Detective Patterson made it clear that it was up to Defendant if he wished to stop. Further, the Defendant was not arrested at or near the time of the interview. The defendant was not placed under formal arrest until October 4, 2016, about 3 months after the questioning occurred.

When taking all of the factors together, the Defendant did not prove that he was in custody for purposes of Miranda applicability. Accordingly, after review of the evidence presented and consideration of the relevant case law, the Court finds that Miranda did not apply at the time of the questioning …. Standard of Review We review a circuit court’s denial of a motion to suppress on “‘only the evidence contained in the record of the suppression hearing.’” Gupta v. State, 452 Md. 103, 129 (2017) (quoting Rush v. State, 403 Md. 68 , 82–83 (2008)). “[W]e ‘extend great deference 5 to the findings of the motions court as to first-level findings of fact and as to the credibility of witnesses, unless those findings are clearly erroneous.’” Jones v. State, 213 Md. App. 483, 496 (2013) (quoting Padilla v. State, 180 Md. App. 210, 218 (2008)). In our consideration, “we ‘review the evidence and the inferences that may be reasonably drawn in the light most favorable to the prevailing party,’ in this case, the State.” Id.

(quoting Bost v. State, 406 Md. 341, 349 (2008)). However, we review the suppression court’s legal conclusions de novo by undertaking our own “independent constitutional appraisal of the record by reviewing the law and applying it to the facts ….” found by the suppression court. Gupta, 452 Md. at 129 (internal quotations and citation omitted). Moreover, a defendant must show that he was in custody and subject to interrogation as a condition of entitlement to the protection of Miranda.

Smith v. State, 186 Md. App. 498 , 519–20 (2009). Accord Moody v. State, 209 Md. App. 366, 380 (2013) (the burden of showing custody and interrogation lies with the movant). The issue before us is whether Payne established to the suppression court that he was in custody at the time of the statement given to police. Payne argues: Considering the totality of the circumstances in this case, particularly the entry of eleven officers armed and in uniform, the searching of the premises, the request to remove to an upstairs bedroom for an interview with two detectives and the failure any officer to tell Mr. Payne that he was free to leave, the circuit court erred in determining that the interrogation was not a custodial one.

Because Mr. Payne was “in custody” and was questioned, he had the right to be free from compelled self-incrimination. (Footnote omitted). 6 In support of his argument, Payne refers us to Thompson v. Keohane, 516 U.S. 99 (1995), wherein the Supreme Court reiterated that a determination of “in custody” involves two “discrete inquiries”: [F]irst, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave. Once the scene is set and the players’ lines and actions are reconstructed, the court must apply an objective test to resolve “the ultimate inquiry”: “[was] there a formal arrest or restraint [of] freedom of movement of the degree associated with a formal arrest.” 516 U.S. at 112 (quoting California v. Beheler, 463 U.S. 1121, 1125 (1983)). In that respect, courts have determined factors to be considered in determining custody including: “[W]hen and where it occurred, how long it lasted, how many police were present, what the officers and the defendant said and did, the presence of actual physical restraint on the defendant or things equivalent to actual restraint such as drawn weapons or a guard stationed at the door, and whether the defendant was being questioned as a suspect or as a witness.

Facts pertaining to events before the interrogation are also relevant, especially how the defendant got to the place of questioning whether he came completely on his own, in response to a police request or escorted by police officers. Finally, what happened after the interrogation whether the defendant left freely, was detained or arrested may assist the court in determining whether the defendant, as a reasonable person, would have felt free to break off the questioning.” Owens v. State, 399 Md. 388, 429 (2007) (quoting Whitfield v. State, 287 Md. 124, 141 (1980)). The uncontroverted testimony of Detective Patterson, relied on by the suppression court, was that Payne was not restrained, that he was cooperative, that no weapons were shown or drawn, that he responded to Patterson’s request for an interview, that he was not 7 coerced or forced to speak, that no promises or inducements were made, that he was advised that he was not under arrest, that he would have been permitted to leave the interview had he so requested, that the interview lasted about 45 minutes, after which, and after the search ended, the police left Payne in his home. He was not formally arrested until after the charges were filed in October 2016.

We do not overlook the testimony of Ms. Topiwama, who testified that she observed Payne, while outside his home, in handcuffs. The suppression court found her not to be credible because of inconsistencies in her account of the event, vis-à-vis the testimony of Patterson.6 We do not disturb the hearing court’s credibility assessments unless clearly erroneous. It was Payne’s burden to prove custody. Smith, 186 Md. App. at 519–20.

Payne opted to remain silent at the suppression hearing; therefore, we have been provided no contrast to the evidence given by Detective Patterson, upon which the court reasonably relied. We agree with the reasoning of the suppression court that Payne, at the time of the interview with, and statement to, Detectives Patterson and Mays, was not in custody. Because the circumstances were non-custodial, we need not reach his contention that he was denied the right to counsel.7 6 The testimony of Ms. Topiwama, for whom English is apparently a second language, was not the pillar of clarity and contained variations as to what and when she saw of the police interaction with Payne. 7 At the suppression hearing, Payne asserted that Patterson’s advice of rights, given at their initial contact, is a concession that he was in custody at that point. However, the giving of 8 We shall not disturb the suppression court’s rulings. 2.

Other Bad Acts Evidence The search conducted by police at Payne’s home resulted in the seizure of several data storage devices, which the State characterized in its brief as “USB thumbdrives and ScanDisc cards.”8 Collectively, those devices contained more than 3,000 images, of which 527 were identified by the State’s witnesses as either child pornography or child erotica. Of those images so identified, the State’s Attorney selected five as the basis of the possession charges. Those five images were found on the same data stick but depicted five different children. Over objection, the State’s witness, Detective Joshua Williams, described images stored on other storage devices.

Williams was asked: [THE STATE]: You indicated that there were other things on the data stick other than child pornography. What, if any, data did you observe on that thumb drive? [WITNESS]: Again, it had similar images that had pictures of the defendant taking selfies. It had some captures of the defendant in these video chats. It had some pictures of teen girls.

This one also had a video that depicted the Miranda-type advice in a non-custodial setting does not render the setting custodial as a matter of law. See Chase v. State, 224 Md. App. 631, 646 (2015) (explaining, “‘courts have made clear that a cautious or gratuitous recitation of Miranda warnings is irrelevant to whether there has been an arrest, or even a custodial interrogation’” (quoting Cotton v. State, 386 Md. 249, 266 (2005))). Accord Cummings v. State, 27 Md. App. 361, 376 (1975) (determining that “the gratuitous and unnecessary giving of Miranda warnings will [not] operate to convert an otherwise noncustodial situation into a custodial one”). 8 The terms “data stick” and “thumb drive” are also used interchangeably by both parties in reference to the electronic data storage devices seized from in Payne’s home pursuant to the search warrant. Merriam-Webster defines a “thumb drive” as “a small usually rectangular device used for storing and transferring computer data.” Thumb Drive, Merriam-Webster, https://www.merriam-webster.com/dictionary/thumb%20drive (last visited Oct. 28, 2019). 9 defendant setting up a recording device and masturbating next to a sleeping woman.9 It is that response that forms the basis of Payne’s claim that the trial court erred in permitting that “other bad acts” evidence, contrary to Rule 5-404.10 His trial counsel argued that the Williams’ testimony about the existence of a video of Payne masturbating next to a sleeping woman was not relevant to the charges of possession of child pornography and while characterized as admittedly “unsavory” and “repulsive” it was unnecessary to prove the State’s case and, therefore, prejudicial.

The State responded to defense counsel’s prejudice arguments by asserting that the evidence was admissible under the identity exception in Rule 5-404(b) because Payne’s defense, in part, was that the pornographic images were the property of his mother’s companion and were not in his possession.11 9 Defense counsel responded by saying “Your Honor, may we approach?” Although counsel did not request any specific relief, it is clear from the extensive colloquy, including counsel’s argument, that a timely objection was lodged. 10 Maryland Rule 5-404, governing “Character evidence not admissible to prove conduct; exceptions; other crimes,” provides, in relevant part: (b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts including delinquent acts as defined by Code, Courts Article, § 3-8A-01 is not admissible to prove the character of a person in order to show action in conformity therewith. Such evidence, however, may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, common scheme or plan, knowledge, identity, or absence of mistake or accident. 11 The State also argued that Payne’s statement to investigators that he made reports to the Center for Missing and Exploited Children of images inadvertently viewed was impeached by the evidence in the masturbation video. The State does not pursue that contention on appeal. 10 Payne is correct that Rule 5-404 is a rule of relevance, requiring a finding of special relevance to the crime(s) charged in order to admit otherwise inadmissible evidence of other bad acts.

See generally Streater v. State, 352 Md. 800 (1999). See also Rules 5-401 through 5-413 (governing “Relevancy and its Limits” for the admissibility of evidence). Thus, “[e]xcept as otherwise provided by constitutions, statutes, or [the Maryland Rules], or by decisional law not inconsistent with these rules, all relevant evidence is admissible.” Rule 5-402. We have said “‘a bad act is an activity or conduct, not necessarily criminal, that tends to impugn or reflect adversely upon one’s character, taking into consideration the facts of the underlying lawsuit.’” Brice v. State, 225 Md. App. 666, 692 (2015) (quoting Klauenberg v. State, 355 Md. 528, 549 (1999)).

Because of the significant risks associated with the admission of such evidence, it is admissible only when the bad acts evidence “has ‘special relevance—that it is substantially relevant to some contested issue.’” Smith v. State, 218 Md. App. 689, 710 (2014) (quoting Wynn v. State, 351 Md. 307, 316 (1998)). Accord Wilder v. State, 191 Md. App. 319, 343 (2010) (explaining that “[t]his Rule and ‘the common law preclude the admission of other crimes [or other acts] evidence, unless the evidence fits within a narrowly circumscribed exception.’” (quoting Carter v. State, 366 Md. 574, 583 (2001))). Rule 5-404(b) provides the “special relevancy” exceptions to the limited admissibility of bad acts evidence, allowing admission of such evidence for the purpose of proving “motive, opportunity, intent, preparation, common scheme or plan, knowledge, identity, or absence of mistake or accident.” See Smith, 218 Md. App. at 710 (citations omitted). 11 We review a trial court’s ruling on the admissibility of other crimes/bad acts evidence by following the “Faulkner standard,” a three-step process: First, the court determines whether the evidence falls into one of the recognized exceptions[]…. This is not a matter of discretion, and we review that categorization de novo.

Second, if the evidence falls into a category of exceptions, the court decides by clear and convincing evidence whether the defendant was involved in the prior … bad act, and we review that finding for sufficiency of the evidence. Third, the court balances the probative value of the evidence against the danger of unfair prejudice, a determination we review for abuse of discretion. Bellard v. State, 229 Md. App. 312 , 342–43 (2016) (emphasis in Bellard) (citing State v. Faulkner, 314 Md. 630 , 634–35 (1989)). Under the first prong, the State’s justification for the admissibility of the testimony concerning the masturbation video is the “identity” exception to the rule.

The State argues that the video having been found in close proximity to the proscribed images, in Payne’s home, serves to establish his ownership or control of the images for which he was charged, indeed of all of the storage devices that were recovered together in the same white box. In support of its position, the State points to defense counsel’s comments in his opening statement: [DEFENSE COUNSEL]: … you’re going to hear they found child porn in that house without a doubt. But it didn’t belong to Mr. Korey Payne. And the government won’t prove that it did because it belonged to somebody else.

You heard the government tell you who lived in that home. It was Korey Payne, his mother, Gloria Payne, and her fiancé, Antonio Kohl. You’re going to hear evidence that, in fact, it was not Korey Payne’s pornography. It was somebody else’s.

It was his mother’s fiancé’s. Those comments, the State argues, placed “the issue of identity as to the possessor of the child pornography contained on the storage devices found in the white box … 12 squarely before the jury[,]” and that “‘the test of relevance is whether, in conjunction with all other relevant evidence, the evidence tends to make the proposition asserted more or less probable.’” (Quoting Donati v. State, 215 Md. App. 686, 736 (2014)). While denying its relevance, Payne concedes that the masturbation video constitutes an “act” as contemplated by the rule, thereby satisfying the second prong of the Faulkner standard. Lastly, even if “bad acts” evidence has a special relevance to an issue, it may be excluded if its probative value is “‘substantially outweighed by the danger of unfair prejudice[.]’” Gutierrez v. State, 423 Md. 476 , 497–98 (2011) (quoting Rule 5-403).

And, “[p]rejudice that would ‘outweigh probative value involves more than [mere] damage to the opponent’s cause.’” Id. at 486 (quoting State v. Allewalt, 308 Md. 89, 102 (1986)). After hearing defense counsel’s full argument at the time of the introduction of the evidence, the trial court overruled the implicit objection. In its consideration of the potential prejudice, the court permitted Williams’ description of the video, but prohibited the State from displaying the video. We are satisfied that the court engaged in a sufficient balancing of the probative value of the evidence against the danger of unfair prejudice.

We find neither error nor abuse of discretion in the court’s rulings. 3. Merger of Sentences — Unit of Prosecution Finally, Payne argues that the trial court erred in sentencing separately on each of the five convicted counts. Payne asserts, conversely, that he was subject to but one sentence because all the images were held by him at the same time and place, thus 13 constituting but one offense. Alternatively, he suggests that we apply the rule of lenity.

We have found no Maryland case that has addressed the question presented by Payne. Payne was sentenced separately and consecutively for each of the five convicted counts of possession of child pornography. On appeal, he argues that a conviction for possession of multiple images, found on the same device at the same time and place should be considered as a single act and, therefore, “[f]our of the convictions and sentences in this case must be vacated ….” He contends that, on these facts, there was but one unit of prosecution warranting but one sentence. He submits, as well, that, “at a minimum,” this case is ripe for application of the rule of lenity.12 At sentencing, the State offered a sentencing memorandum urging the court to impose separate sentences for each convicted count because “possession of each photo, all depicting a different pre-pubescent girl, constitutes a separate criminal act. [Payne’s] crimes for possession of child pornography are not based on a single criminal act since each count stems from the possession of a separate and different pornographic image of a child[.]” (Footnote omitted). 12 Recently, in State v. Bey, 452 Md. 255, 275 (2017), the Court of Appeals said “[t]he rule of lenity instructs that courts ‘will not interpret a … criminal statute so as to increase the penalty that it places on an individual when such an interpretation can be based on no more than a guess as to what [the legislature] intended.’ ‘Stated simply, the rule of lenity only informs our interpretation of a criminal statute when the standard tools of statutory interpretation fail to discern the intent of the Legislature.’” (Internal citations omitted).

Because, in this case, we conclude that “the standard tools of statutory interpretation” have led us to understand the intent of the Legislature, we find no need for consideration of the rule of lenity. 14 The parties acknowledge that the courts of our sister states, and the federal judiciary, have not reached unanimity on the question of sentencing following conviction of more than one count of possession of child pornography or the proper unit of prosecution under the applicable statute. When interpreting a statute and its statutory scheme, “[w]e assume that the legislature’s intent is expressed in the statutory language and thus our statutory interpretation focuses primarily on the language of the statute to determine the purpose and intent of the General Assembly.” Phillips v. State, 451 Md. 180, 196 (2017). Therefore, we begin with the plain language of CR § 11-208, the statute under which Payne was charged and convicted. See Mihailovich v. Dep’t of Health & Mental Hygiene, 234 Md. App. 217, 224 (2017), cert. denied, 457 Md. 396 (2018) (“When this Court is ‘called upon to construe a particular statute, we begin our analysis with the statutory language itself since the words of the statute, construed according to their ordinary and natural import, are the primary source and most persuasive evidence of legislative intent.’” (quoting Duffy v. CBS Corp., 232 Md. App. 602, 613 (2017), rev’d on other grounds, 458 Md. 206 , reconsideration denied (May 17, 2018))).

As we have explained, “[a]ll ‘[l]egislation is created with a particular objective or purpose.’” Mihailovich, 234 Md. App. at 224 (quoting Bowers v. State, 227 Md. App. 310, 322 (2016)). As such, it is “[o]ur cardinal rule of statutory interpretation is to ascertain and effectuate the real and actual intent of the Legislature. We first look to the language of the statute to determine its plain meaning, and we neither add nor delete language so as to reflect an intent not evidenced in the plain and unambiguous language of the statute.” 15 Connor v. State, 223 Md. App. 1, 15 (2015) (quoting McCloud v. Dep’t of State Police, Handgun Permit Rev. Bd., 426 Md. 473 , 479–80 (2012)). However, “[w]here the statute’s language is ambiguous or not clearly consistent with the statute’s apparent purpose, the court search[es] for [the General Assembly’s] intent in other indicia, including the history of the [statute] or other relevant sources intrinsic and extrinsic to the legislative process[,] in light of: (1) the structure of the statute; (2) how [the statute] relates to other laws; (3) the statute’s general purpose; and (4) [the] relative rationality and legal effect of various competing constructions.” Mihailovich, 234 Md. App. at 224 (quoting Hailes v. State, 442 Md. 488 , 495–96 (2015)).

Pertinent to our discussion, CR § 11-208(a)(2) provides that: “A person may not knowingly possess and intentionally retain a film, videotape, photograph, or other visual representation showing an actual child under the age of 16 years: … (2) engaged in sexual conduct[.]” But, the statute does not define the unit of prosecution. The statute, on its face, is clear and unambiguous as to the proscribed conduct, expressly providing that the possession of “a … visual representation” is prohibited. (CR § 11-208(a) (emphasis added). Payne posits that the use of the word “a” in the statute is not conclusive as to its meaning, and thus, we “cannot end [our] inquiry and ‘apply the plain meaning of the statute.’” (Citation omitted).

Payne relies on the Revisor’s Note for CR § 11-208, contending that “[w]hile the version of the statute applicable to [his] prosecution uses the phase ‘a film, videotape, photograph…,’ the [Note] states that the recodification ‘is new language derived without substantive change from former Art. 27, § 419B.’” (Emphasis in brief) (quoting Revisor’s Note for CR § 11-208 (2002)). Because of that, he insists that “it cannot be said that the 16 Legislature, in using ‘a’ instead of ‘any,’ meant to express its intention that the unit of prosecution for possession of child pornography is each individual image possessed at one time and one place.” Payne suggests that, with that interpretation, the statute is ambiguous, and the Legislative intent “could just as likely have been to make clear that even one image will suffice to bring a prosecution.” Statutory Construction Section 11-208 of the Criminal Law Article is found in Title 11, governing Indecency and Obscenity, under Subtitle 2—Obscene Matter. Subtitle 2 also includes statutes that proscribe the distribution, display, and advertising of obscene matter, and statutes relating to child pornography. See CR §§ 11-201 through 11-211.

We first look to the language of the related child pornography statutes. In doing so, we are mindful that [t]he articles “a” or “an” are indefinite articles, in contrast to the definite article “the.” They do not, however, necessarily imply the singular, but generally take their meaning in that regard from the context in which they are used. Most courts have construed “a” or “an” as meaning “any” and as not restricted to just one. Evans v. State, 396 Md. 256, 341 (2006).

Thus, we consider both the language and context in order to discern the Legislature’s intended meaning. Section 11-207, which immediately precedes CR § 11-208 in Subtitle 2, is the overarching statute that proscribes the production, solicitation, promotion, and distribution of child pornography. The statute provides, in relevant part, that: (a) A person may not: (1) cause, induce, solicit, or knowingly allow a minor to engage as a subject in the production of obscene matter or a visual representation 17 or performance that depicts a minor engaged as a subject in sadomasochistic abuse or sexual conduct; (2) photograph or film a minor engaging in an obscene act, sadomasochistic abuse, or sexual conduct; (3) use a computer to depict or describe a minor engaging in an obscene act, sadomasochistic abuse, or sexual conduct; (4) knowingly promote, advertise, solicit, distribute, or possess with the intent to distribute any matter, visual representation, or performance: (i) that depicts a minor engaged as a subject in sadomasochistic abuse or sexual conduct; or (ii) in a manner that reflects the belief, or that is intended to cause another to believe, that the matter, visual representation, or performance depicts a minor engaged as a subject of sadomasochistic abuse or sexual conduct[.] CR § 11-207(a)(1)–(4) (emphasis added). We glean from the language of these subsections that the drafters were focused on the individual victim in the singular, e.g., “a minor” engaged as “a subject.” The use of “a” throughout this statute qualified each reference in the singular.

Similarly, when considering subsection (4) of the statute, it is equally apparent that the use of the term “any” was a qualifier for what kinds of matter were proscribed, intending it to be all inclusive of the listed items, statutorily defined as “matter.”13 In this instance, the term “matter” is not 13 Section 11-201 of the Criminal Law Article defines the term “matter” as meaning: “(1) a book, magazine, newspaper, or other printed or written material; (2) a picture, drawing, photograph, motion picture, or other pictorial representation; (3) a statue or other figure; (4) a recording, transcription, or mechanical, chemical, or electrical reproduction; or (5) any other article, equipment, machine, or material.” CR § 11-201(d)(1)–(5). 18 used in reference to a single identifiable item, rather, it is used to identify a category of items. Comparing the language of CR § 11-207 with that of CR § 11-208, we are persuaded that this interpretation is consistent with what the Legislature intended. Section 11-208(a), provides: “A person may not knowingly possess and intentionally retain a film, videotape, photograph, or other visual representation showing an actual child under the age of 16 years[.]” (Emphasis added). While, as noted, the use of “a” can be interpreted to be all- inclusive, as can be the use of “any,” it is clear within the context of this statute,