Pettigrew v. State

DAVIS, J. Appellant, Rahmat M. Pettigrew, was tried and convicted by a jury in the Circuit Court for Baltimore County (Cavanaugh, J.) of one count of first-degree assault, two counts of second-degree assault, one count of reckless endangerment and one count of malicious destruction of property. He was sentenced to twenty years imprisonment for the first-degree assault charge, three years imprisonment for each of the second-degree assault charges, two years for reckless endangerment and six months for the malicious destruction of property, both of the latter two charges to run concurrently to the sentence for first-degree assault. In this appeal, appellant presents the following questions for our review: 1 I. Was the evidence insufficient to support appellant’s conviction of assault in the first-degree, employing the doctrine of transferred intent?

II

Did the trial court err by instructing the jury on the doctrine of transferred intent?

III

Did the trial court err by not merging appellant’s convictions of first-degree assault and reckless endangerment for the purpose of sentencing? We answer questions I and II in the affirmative and, accordingly, reverse the judgment of conviction for first-degree assault. Perceiving that the conviction for reckless endangerment was unaffected by errors relating to the conviction for first-degree assault, we affirm the conviction and sentence for reckless endangerment. ²⁹⁹ FACTUAL BACKGROUND On the afternoon of June 15, 2005, appellant entered an Applebee’s restaurant in Baltimore County. His friend and co-worker, Jeffrey Stewart, was drinking at the bar located in the middle of the restaurant.

Appellant sat next to Stewart and began discussing a disagreement that they had had at work. After a few minutes, the conversation grew heated and Stewart “made a gun gesture” 2 at appellant’s head. Jeremy Davis, the manager of the restaurant, then attempted to intervene. Both men continued shouting obscenities and threatening each other.

Stewart “started rushing” and a punch was thrown. Davis testified that appellant threw the punch, which struck Stewart in the face and caused both Davis and Stewart to fall backwards. Appellant then picked up a heavy wooden bar stool and threw it in Davis’ and Stewart’s direction, striking Davis in the back. The brawl continued with appellant and Stewart tackling each other and falling to the ground.

As others in the restaurant attempted to halt the altercation, Stewart hid at the far end of the bar located near the entryway to the kitchen. Appellant began to hurl glassware from nearby tables at Stewart. Struck by a glass pepper shaker, Davis indicated that Stewart cowered behind him in an effort to avoid the projectiles. Stewart next ran to the side of the horseshoe-shaped bar closest to the front of the restaurant.

Davis testified that appellant “began to pick up anything that he could get his hands on, ashtrays, shot glasses, beer mugs, and began to throw them in the direction of the entrance to the kitchen,” which shattered “on a light shade and on the wall.” Thomas McNiel, an Applebee’s employee, stated that appellant was approximately ten feet away from the entrance to the kitchen as he threw the glass. McNiel testified that he was able to pull some of the glasses and things out of appellant’s ³⁰⁰ reach; however, appellant grabbed three or four “bar tumbler” glasses, among other things, and threw them in Stewart’s direction. McNiel further testified that appellant was “extremely angry ... irate,” and ignored demands to leave the restaurant. Sara Juarez, a twenty-three year old cook, and Todd Kuyawa, a plumber hired to fix a leak, were both in the kitchen as the commotion in the bar area occurred.

Juarez, five, months pregnant on the date of the incident, walked out only a step in front of Kuyawa to investigate the disturbance. Kuyawa described the scene in the dining room as “mayhem.” One of the glassware items thrown by appellant hit the wall, shattering into several pieces, approximately eight feet from where Juarez and Kuyawa were located. Shards of glass hit Juarez and she sustained cuts to her face, lower lip and eye. Kuyawa testified that all he could hear was Juarez screaming and he witnessed blood “just gushing all over the place.” Davis stated that he found Juarez in the kitchen “screaming extremely loud” and with the blood “gushing very fast and very hard out of her eye, out of her mouth, out of her cheek.” He witnessed glass actually protruding from her eye, which “appeared to be severed right down the middle.” Juarez testified that the glass cut her left eye “in half,” and also cut her lip, the top of her nose under her eye, and the top of her right eyelid.

Juarez lost all vision in her left eye, and it eventually had to be removed to prevent infection. Kuyawa was also struck by flying glass, receiving a “very deep” cut on his arm that required stitches. Undeterred by the severity of Juarez’s injury, appellant and Stewart continued to fight. Mall security attempted to pull the two men apart, finally separating them before the police arrived.

The police, upon their arrival, observed Stewart pacing back and forth while appellant sat at the bar. Although appellant’s shirt had been torn off and he had sustained a cut to his hand that was bleeding, Stewart had not suffered any visible injuries. Both men were arrested. Appellant was charged with first-degree assault and reckless ³⁰¹ endangerment as to Juarez, two counts of second-degree assault as to Kuyawa and Davis and malicious destruction of property.

Appellant was not charged with second-degree assault as to Juarez, nor was he charged as to Stewart. Arguing that the doctrine of transferred intent does not apply, appellant moved for judgment of acquittal at the end of the State’s case and renewed the motion at the end of the entire case. The court denied appellant’s motion for judgment of acquittal at the close of the State’s case and at the conclusion of all of the evidence. The State argued, in opposition to the defense’s motion for judgment of acquittal, that the jury could find appellant guilty of first-degree assault by ascribing whatever intent appellant had directed at Stewart and transferring it to Juarez.

So in effect, the Defense is arguing that the Defendant should be rewarded because his aim was bad. He certainly meant to do that to Jeffrey Stewart. He did it to Sara Juarez as opposed to Jeffrey Stewart. And the Defendant should not be given the benefit of not having that doctrine of transferred intent apply in this case, and this is specifically, this is the prototypical, I would say, for a case for applying a transferred intent doctrine.

The purpose of the doctrine is basically to bridge two halves of a crime together. When you have a mens rea directed toward one victim and an actus reus that is carried out on a second victim, the transferred intent doctrine bridges the two together so you have a completed crime. And in this case, the Defendant intended to bring about a serious debilitating injury to Jeffrey Stewart. That very same injury occurred to Sara Juarez.

Therefore, the State’s arguing that the transferred intent should apply. Now, [defense counsel] has cited a bunch of cases, specifically the Harrison case, that really does go into the detailed discussion about transferred intent. And those cases discuss situations in which the defendants are charged with incoherent [sic] crimes, such as attempted murder. And that case talks about the fact that you can’t really apply a ³⁰² transferred intent to an attempted murder charge to an unintended victim.

In other words, it doesn’t make sense to charge a defendant with attempting to murder someone who was unintended. That specific intent cannot apply to two different victims. So therefore, that incoherent [sic] defense does not apply to the transferred intent doctrine. But in this case, we are not talking about incoherent [sic] defense, we’re talking about a victim that suffered an injury of that very type that the Defendant intended upon his intended victim.

(Emphasis added). During his closing argument to the jury, the assistant State’s attorney resented his theory in support of the charge of first-degree assault: Now, the judge has instructed you on the doctrine of transferred intent. The State believes that the Defendant in this case, and believes that the evidence will show, that the Defendant in this case intended to commit a serious bodily injury upon Jeffrey Stewart, the man he was fighting, the man in the black shirt, and all the evidence that you’ve heard from all the witnesses supports that conclusion. Let’s go through all the evidence that shows that the Defendant was trying to inflict a serious physical injury on Jeffrey Stewart.

Under the doctrine of transferred intent, it makes sense. The doctrine makes sense. And the reason is, the purpose of that doctrine is, so that people who have formed a criminal intent and have taken action to bring that criminal intent into fruition, they should not benefit from having bad aim or just being unlucky. In this case, the Defendant was trying to bring about a criminal result to Jeffrey Stewart, and he just had bad aim.

He should not get the benefit of having bad aim. He should be responsible because someone in fact did end up with a serious physical injury, and that’s Sara Juarez-Allender. And somebody should be responsible for that injury, and that is the man who sits across this ³⁰³ courtroom from you today, the [appellant]. (Emphasis added).

As noted, the jury found appellant guilty of first-degree assault against Juarez, reckless endangerment against Juarez, second-degree assault against Kuyawa and Davis and malicious destruction of property. At the sentencing hearing, appellant moved for a new trial, based again, in part, on the inapplicability of the doctrine of transferred intent. That motion was also denied. In consideration of the severity of Juarez’s injuries, the court sentenced appellant to twenty years’ imprisonment for first-degree assault.

The court also imposed a two year concurrent sentence for reckless endangerment of Juarez. A one year concurrent sentence for malicious destruction of property and two consecutive sentences of three years’ imprisonment for each second-degree assault conviction were also imposed. Additional facts will be set forth as warranted. LEGAL ANALYSIS I and II SUFFICIENCY OF THE EVIDENCE and JURY INSTRUCTION Appellant initially contends that the evidence was insufficient to sustain his conviction for first-degree assault because the trial court erroneously allowed the jury to apply the instruction to which appellant takes exception: There exists under the law of Maryland the doctrine of transferred intent.

Transferred intent means that whatever state of mind the Defendant entertains as to his intended target will carry over to any other victim, even if that victim is an unintended target. If you find that the Defendant’s state of mind towards Jeffery Stewart was willful and deliberate, then his intent can be said to carry over to Sara Juarez, notwithstanding that she may have been an unin ³⁰⁴ tended victim. The doctrine of transferred intent does not apply to the crime of assault with intent to disable. Generally, if there are evidentiary facts sufficiently supporting the inference made by the trial court, the appellate court defers to the fact-finder instead of examining the record for additional facts upon which a conflicting inference could have been made, and then conducting its own weighing of the conflicting inferences to resolve independently any conflicts it perceives to exist.

The resolving of the conflicting evidentiary inferences is for the fact-finder. State v. Smith, 374 Md. 527, 547-48, 823 A.2d 664 (2003). Three principles must be adhered to in our analysis: (1) we must give great deference to the trier of facts’ opportunity to assess the credibility of witnesses, weigh the evidence, and resolve conflicts in the evidence, (2) circumstantial evidence alone can provide a sufficient basis upon which a trier of fact can rest its determination of guilt, even for first degree murder, and (3) we do not re-weigh the evidence or substitute our own judgment, but only determine whether the verdict was supported by sufficient evidence to convince the trier of fact of the defendant’s guilt beyond a reasonable doubt. Pinkney v. State, 151 Md.App. 311, 329 , 827 A.2d 124 (2003).

In denying the appellant’s motion for judgment of acquittal, the trial court analyzed the incident from which this appeal emanates as follows: Parties are involved in a fray in a bar. It seems like the only innocent people in this case are the victims. Miss Juarez has lost an eye. She’s scarred, probably for life, with that disfigurement there.

In the Harrison case, 3 this is a case where it’s an attempted second degree murder. Going to a basketball court, they start firing shots at somebody they thought was a drug dealer. The person that was killed was nowhere in ³⁰⁵ the vicinity or the zone of harm, as they referred to it. Transferred intent didn’t apply there.

This is not an attempted second degree murder case. It’s a first degree assault charge. They refer to the zone of harm. Clearly in Applebee’s there was a zone of harm created by [appellant’s] actions.

He threw the bar stools. They didn’t go far enough. He started throwing the glass. Instead of going in her eye, it just as easily could have cut her carotid artery.

It could have killed her. I don’t think that the Harrison case is on point. It’s not a first degree assault case. I don’t think the Ford 4 case is on point.

Likewise, that’s not a first degree assault case. He intended to commit serious bodily harm based upon the testimony that I’ve heard at this point. (Emphasis added). Assault is defined in § 3-201 (b) of the Criminal Law Article as “the crimes of assault, battery, and assault and battery, which retain their judicially determined meanings.” Section 3-202(a)(l) delineates assault in the first degree: “A person may not intentionally cause or attempt to cause serious physical injury to another.” Serious physical injury is defined as (1) creates a substantial risk of death; or (2) causes permanent or protracted serious: (i) disfigurement; (ii) loss of the function of any bodily member or organ; or (iii) impairment of the function of any bodily member or organ.

Md.Code Ann., Criminal Law § 3-201(d) (2007). In Gladden v. State, 273 Md. 383 , 330 A.2d 176 (1974), the Court of Appeals considered Gladden’s contention that he could not be convicted of murder when his intent was to kill his drug supplier, but, missing his target, he killed a twelve- ³⁰⁶ year-old boy sitting in his living room. In affirming this Court’s decision, the Court expressly adopted the doctrine of transferred intent, stating that “the doctrine of ‘transferred intent’ is the law of Maryland and that the mens rea of a defendant as to his intended victim will carry over and affix his culpability when such criminal conduct causes the death of an unintended victim.” Id. at 405 , 330 A.2d 176 . The doctrine was later applied in Ford, supra.

In that case, Ford and three other young boys threw large landscaping rocks at vehicles traveling on the Baltimore Beltway. Several people in those vehicles were injured and significant damage was done to many vehicles. Ford was convicted by a jury of one count of assault with intent to maim, eleven counts of assault with intent to disable, seventeen counts of assault and battery, six counts of assault and seventeen counts of malicious destruction of property. Id. at 689, 625 A.2d 984 .

In his appeal to this Court, all but two of the convictions for malicious destruction of property were affirmed. See Ford v. State, 90 Md.App. 673 , 603 A.2d 883 (1992). In dictum, the Court of Appeals addressed the applicability of the doctrine of transferred intent as it related to the charge of assault with intent to disable and related crimes. The Court commented that [t]he underlying rationale for the doctrine also suggests that transferred intent should apply only when, without the doctrine, the defendant could not be convicted of the crime at issue because the mental and physical elements do not concur as to either the intended or the actual victim.

As Dean Prosser notes, “[t]he early criminal cases were understandably preoccupied with mens rea, moral guilt, and the obvious fact that if the defendant was not convicted there would be no one to punish for the crime.” Thus, transferred intent makes a whole crime out of two halves by joining the intent as to one victim with the harm caused to another victim. Transferred intent does not make two crimes out of one. Where the crime intended has actually been committed against the intended victim, transferred ³⁰⁷ intent is unnecessary and should not be applied to acts against unintended victims. Ford, 330 Md. at 711-12 , 625 A.2d 984 (citations and footnote omitted).

The Court continued: Transferred intent is equally inapplicable to other circumstances where the subject crime is already completed as to an intended victim, such as attempts or other crimes that can be completed without the necessity of physical contact. Such crimes have one thing in common-where the “bullet” ends up is superfluous to the crime, so there is no need for the intent to “follow the bullet” to link the crime’s mental and physical elements. The crime at issue here, assault with intent to disable, is such a crime. Because the elements of an assault with intent to disable are (1) an assault and (2) an intent to disable, the crime is complete regardless of whether the projectile reaches its target.

The requisite intent has already been formed and the requisite assault has already been committed; no intent need be transferred to complete a crime. Id. at 713, 625 A.2d 984 . The dictum in Ford was adopted in Poe v. State, 341 Md. 523 , 671 A.2d 501 (1996). In that case, Poe intended to kill his estranged wife by shooting her, but instead the bullet traveled through his wife’s arm and killed the daughter of his wife’s boyfriend.

At the close of evidence, the court instructed the jury on the theory of transferred intent as it applied to the killing of the boyfriend’s daughter. Id. at 527 , 671 A.2d 501 . Poe was convicted of murder of the daughter and attempted murder of his wife. 5 On appeal, he claimed that the doctrine of transferred intent was inapplicable because he depleted all of his intent when he successfully shot his intended victim. Id. at 528 , 671 A.2d 501 .

In rejecting Poe’s contention, the Court held: ³⁰⁸ In Ford, we made clear that if a defendant intends to kill a specific victim and instead wounds an unintended victim without killing either, the defendant can be convicted only of the attempted murder of the intended victim and transferred intent does not apply. This is not true where, as is the case sub judice, the defendant intends to murder one victim and instead kills an unintended victim. Here, transferred intent applies because there is a death and the doctrine is necessary to impose criminal liability for the murder of the unintended victim in addition to the attempted murder of the intended victim. In Ford, this Court asserted that the doctrine is used when the defendant fails to commit the crime intended upon the targeted victim and completes it upon another.

Thus, the doctrine should be applied to the instant case. Id. at 530, 671 A.2d 501 (internal citations and emphasis omitted) (emphasis added). To summarize the evolution of transferred intent and its current application under Maryland law, there is no conflict among legal authorities that the principle applies when lethal force is directed toward an intended victim, but misses its target and kills an unintended victim. 6 Likewise, it is settled Maryland law that there can be no transferred intent when the unintended victim is neither killed nor injured. 7 More problematic was the so-called “intermediate position,” where the unintended victim is actually hit though not killed. Judge Moylan, writing for this Court in Harvey v. State, 111 ³⁰⁹ Md.App. 401, 425-28 , 681 A.2d 628 (1996), analyzed the fact pattern under review in the case at hand: It is the intermediate situation — when the unintended victim is actually hit though not killed — that has divided the Court of Appeals.

In State v. Wilson, 313 Md. 600 , 546 A.2d 1041 (1988), the two defendants fired four or five shots at a fleeing Marvin Brown, indisputably intending to kill him. They missed Brown, however, and one of the errant shots hit Juan Kent, an innocent bystander. Kent survived his wound, but suffered paralysis on one side of his body and brain damage that left him unable to walk or to speak. The defendants were convicted of two separate counts of attempted first-degree murder, one with respect to the intended victim, Marvin Brown, and the other with respect to the unintended victim, Juan Kent. 313 Md. at 601-02 , 546 A.2d 1041 .

We observed in Harvey that the Wilson Court, under traditional attempt law, had no difficulty affirming the conviction for the attempted first-degree murder of Marvin Brown. We then pointed out that the Court affirmed the conviction in the case of Juan Kent on the ground that the actual battery inflicted on him was the actus reus and that the murderous mens rea intended for Marvin Brown had transferred to Juan Kent. The Wilson Court, we said, held that “the doctrine of transferred intent applies to the crime of attempted murder and ... the mens rea or specific intent of a defendant as to his intended victim will carry over and determine his culpability when such criminal conduct causes injury to an unintended victim.” Id. at 425, 681 A.2d 628 . We pointed out that, in earlier dicta in the same opinion, the Court of Appeals had also concluded that its application of the transferred intent doctrine would apply, not only to attempted murder, but also to the inchoate crime of assault with intent to murder.

We then chronicled the Court’s later view of Wilson : Five years after Wilson , a four-judge majority in Ford v. State, 330 Md. 682 , 625 A.2d 984 (1993), in dicta to be sure but in extensive and well-considered dicta, effected a massive correction of course. It reasoned that the Wilson ³¹⁰ rationale was incorrect and that the transferred intent doctrine should not have been applied by Wilson to any of the inchoate homicides such as attempted