Pinheiro v. State

Richard Pinheiro, v. State of Maryland, No. 3009, September Term 2018. Argued: November 7, 2019. Opinion by Reed, J. CRIMINAL LAW > NONJURY OR BENCH TRIAL AND CONVICTION > APPEAL AND TRIAL DE NOVO > REVIEW > QUESTION OF FACT > SUFFICIENCY OF EVIDENCE TO CONVICT The issue before this Court calls into question the sufficiency of evidence following Appellant’s bench trial, which we will review on both the law and the evidence, and we will not set aside the judgment of the trial court on the evidence unless clearly erroneous. CRIMINAL LAW > REVIEW > PRESUMPTIONS > FACTS OR PROCEEDINGS NOT SHOWN BY RECORD > SUFFICIENCY OF EVIDENCE > CONSTRUCTION OF EVIDENCE > CONSTRUCTION IN FAVOR OF GOVERNMENT, STATE, OR PROSECUTION CRIMINAL LAW > REVIEW > VERDICTS > CONCLUSIVENESS OF VERDICT > WEIGHT OF EVIDENCE IN GENERAL > REASONABLE DOUBT The test for sufficiency of evidence asks whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

CRIMINAL LAW > REVIEW > QUESTION OF FACT > PRESUMPTIONS > REASONABLE INFERENCE We will give deference to all reasonable inferences that the fact-finder draws, regardless of whether the appellate court would have chosen a different reasonable inference. STATUTES > CONSTRUCTION > IN GENERAL > PURPOSE > POLICY BEHIND OR SUPPORTING STATUTE STATUTES > CONSTRUCTION > PARTICULAR ELEMENTS OF LANGUAGE > ABSENT TERMS; SILENCE; OMISSIONS STATUTES > CONSTRUCTION > STATUTE AS A WHOLE; RELATION OF PARTS TO WHOLE AND TO ONE ANOTHER > CONTEXT To ascertain whether the legislature intended for physical evidence under Criminal Law Article § 9-307(b) to encompass body worn camera footage, we review the statute’s plain language, considering the context of the statutory scheme to which it belongs. CRIMINAL LAW > NATURE AND ELEMENTS OF CRIME > CRIMINAL INTENT AND MALICE > IN GENERAL The term ‘specific intent’ designates some specific mental element or intended purpose above and beyond the mental state required for the mere actus reus of the crime itself. CRIMINAL LAW > EVIDENCE > PRESUMPTIONS AND INFERENCES > INTENT OR MENS REA Because specific intent is a subjective concept and, without the cooperation of the accused, cannot be directly and objectively proven, its presence must be shown by established facts which permit a proper inference of its existence.

CRIMINAL LAW > EVIDENCE > PRESUMPTIONS AND INFERENCES > PRESUMPTIONS > INTENT This Court allows an inference that one intends the natural and probable consequences of his act. STATUTES > CONSTRUCTION > CLARITY AND AMBIGUITY; MULTIPLE MEANINGS > ABSENCE OF AMBIGUITY; APPLICATION OF CLEAR OR UNAMBIGUOUS STATUTE OR LANGUAGE > GIVING EFFECT TO STATUTE OR LANGUAGE; CONSTRUCTION AS WRITTEN If the statutory language is unambiguous and clearly consistent with the statute’s apparent purpose, we apply the statute as written. STATUTES > CONSTRUCTION > CLARITY AND AMBIGUITY; MULTIPLE MEANINGS > ABSENCE OF AMBIGUITY; APPLICATION OF CLEAR OR UNAMBIGUOUS STATUTE OR LANGUAGE > PLAIN LANGUAGE; PLAIN, ORDINARY, COMMON, OR LITERAL MEANING STATUTES > CONSTRUCTION > PARTICULAR ELEMENTS OF LANGUAGE > DEPARTING FROM OR VARYING LANGUAGE OF STATUTE We neither add nor delete language so as to reflect an intent not evidenced in the plain and unambiguous language of the statute, and we do not construe a statute with forced or subtle interpretations that limit or extend its application. STATUTES > CONSTRUCTION STATUTE AS A WHOLE; RELATION OF PARTS TO WHOLE AND TO ONE ANOTHER > CONFLICT STATUTES > CONSTRUCTION > PRESUMPTIONS AND INFERENCES AS TO CONSTRUCTION > STATUTE AS A WHOLE; RELATION OF PARTS TO WHOLE AND TO ONE ANOTHER > GIVING EFFECT TO ENTIRE STATUTE AND ITS PARTS; HARMONY AND SUPERFLUOUSNESS We must view the plain language within the context of the statutory scheme to which it belongs, considering the purpose, aim, or policy of the Legislature in enacting the statute.

We presume that the Legislature intends its enactments to operate together as a consistent and harmonious body of law, and, thus, we seek to reconcile and harmonize the parts of a statute, to the extent possible consistent with the statute’s object and scope. STATUTES > CONSTRUCTION > CLARITY AND AMBIGUITY; MULTIPLE MEANINGS > RESOLUTION OF AMBIGUITY; CONSTRUCTION OF UNCLEAR OR AMBIGUOUS STATUTE OR LANGUAGE > PURPOSE AND INTENT; DETERMINATION THEREOF STATUTES > CONSTRUCTION > EXTRINSIC AIDS TO CONSTRUCTION > IN GENERAL STATUTES > CONSTRUCTION > LEGISLATIVE HISTORY > PLAIN, LITERAL, OR CLEAR MEANING; AMBIGUITY If the statutory language remains ambiguous, only then will we resolve the ambiguity by considering the history of the legislation or other relevant sources intrinsic and extrinsic to the legislative process. PUBLIC EMPLOYMENT > CRIMINAL RESPONSIBILITY > OFFENSES > IN GENERAL Maryland courts have long recognized the common law misdemeanor offense of misconduct in office, which is defined as corrupt behavior by a public officer in the exercise of the duties of his or her office or while acting under color of his or her office. PUBLIC EMPLOYMENT > CRIMINAL RESPONSIBILITY > OFFENSES > IN GENERAL A person can be found guilty of misconduct in office under one or more of the three types of behavior: (1) misfeasance, (2) malfeasance, and (3) nonfeasance.

Sewell, 239 Md. App. at 601 PUBLIC EMPLOYMENT > CRIMINAL RESPONSIBILITY > OFFENSES > IN GENERAL Nonfeasance is the omission of an act which a person ought to do. PUBLIC EMPLOYMENT > CRIMINAL RESPONSIBILITY > OFFENSES > IN GENERAL Misfeasance is the improper doing of an act which a person might lawfully do. PUBLIC EMPLOYMENT > CRIMINAL RESPONSIBILITY > OFFENSES > IN GENERAL Malfeasance is the doing of an act which a person ought not to do at all. PUBLIC EMPLOYMENT > CRIMINAL RESPONSIBILITY > OFFENSES > IN GENERAL A public officer commits malfeasance by corruptly exceeding the scope of his or her authority and commits misfeasance by acting within the scope of his or her authority but doing so corruptly.

PUBLIC EMPLOYMENT > CRIMINAL RESPONSIBILITY > EVIDENCE > WEIGHT AND SUFFICIENCY The measure of what constitutes official misconduct is an imbricating continuum of proof and conduct that toes the sometimes murky line between what is and what isn’t within an officer’s scope of authority, falls within the overlay on this continuum. PUBLIC EMPLOYMENT > CRIMINAL RESPONSIBILITY > OFFENSES > IN GENERAL The State is only required to prove that the public officer acted willfully, fraudulently, or corruptly to sustain a conviction for misconduct in office, regardless of whether the official misconduct charge is based on an act of misfeasance or malfeasance. CRIMINAL LAW > REVIEW > VERDICTS > CONCLUSIVENESS OF VERDICT > WEIGHT OF EVIDENCE IN GENERAL > WEIGHING EVIDENCE CRIMINAL LAW > REVIEW > VERDICTS > CONCLUSIVENESS OF VERDICT > CIRCUMSTANTIAL EVIDENCE To determine whether the State satisfied its burden, we will not reweigh the evidence; rather, we ask if the direct or circumstantial evidence at trial could have persuaded a rational trial judge to conclude” that Appellant was guilty of the underlining offense. Circuit Court for Baltimore City Case No. 118023003 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 3009 September Term, 2018 ______________________________________ RICHARD PINHEIRO v. STATE OF MARYLAND ______________________________________ Kehoe, Reed, Salmon, James P.

(Senior Judge, Specially Assigned), JJ. ______________________________________ Opinion by Reed, J. ______________________________________ Filed: March 2, 2020 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2020-03-02 13:08-05:00 Suzanne C. Johnson, Clerk On January 23, 2018, Richard Pinheiro (hereafter “Appellant”) was indicted by a grand jury in the Circuit Court for Baltimore City on two counts: (1) fabricating physical evidence in violation of § 9-307(b) of the Criminal Law Article of Md. Ann. Code and (2) the Maryland common law crime of misconduct in office. Following a bench trial, Appellant was found guilty and sentenced to three years’ imprisonment, with all but time served suspended. Appellant timely filed this appeal and presents the following question for our review, which we condensed for concision:1 I. Was the evidence before the trial judge sufficient to support Appellant’s conviction for fabricating evidence and misconduct in office? For the following reasons, we hold that the evidence was sufficient and affirm the trial court’s ruling. 1 Appellant presents the following questions: 1.

Did the Trial Court err in finding that the body worn camera video created by the Appellant constitutes “physical evidence?” 2. Did the Trial Court err in finding that the Appellant acted with the intent to “impair the verity” of the body worn camera video? 3. Did the Trial Court err in finding that the Appellant acted with an “intent to deceive” a tribunal when he created the body worn camera video? 4. Did the Trial Court err in finding that the Appellant created the body worn camera video with the intent that it be “introduced in a pending or future official proceeding?” 5.

Did the Trial Court err in finding that Appellant’s actions constituted malfeasance, to wit, doing something unlawful or wrong in its own right? FACTUAL AND PROCEDURAL BACKGROUND On January 24, 2017, Appellant was part of a district drug unit conducting surveillance in Southwest Baltimore City, Maryland. In the course of the investigation, a covert officer observed several suspected narcotics transactions in an alley under surveillance. Based on the observation of the covert officer, Appellant and another unit officer stopped and briefly detained a suspected buyer.

Acting on the information obtained from the brief detention, officers found narcotics in the center console of the buyer’s vehicle. The officers were then directed to search for additional narcotics in the alley where the covert officer initially observed the alleged transactions. Upon searching the alley, the officers’ body worn cameras2 (BWC) were in activation mode.3 Hidden in the alley, officers found a knotted bag containing twenty-two 2 The Baltimore City Police Department General Order Policy 824 on BWC defines BWC as: Audio and/or video recording equipment that is affixed to an officer’s person, uniform, or equipment, with the capability of capturing, recording, and storing information for later viewing. This definition is quoted from the BWC policy published on January 1, 2018.

This version was not available at any time relevant to the facts of this case. 3 The Baltimore City Police Department General Order Policy 824 on BWC defines activation as: Pressing the “event” button twice to begin recording audio and video with the BWC. Deactivation is defined as: Pressing and holding the “event” button for approx. four seconds to cease audio and video recording. Upon deactivation, the BWC will enter Buffering Mode. These definitions are quoted from the BWC policy published on January 1, 2018.

This version was not available at any time relevant to the facts of this case. 2 capsules of white powder suspected to be heroin. Officers then exited the alley and deactivated their BWC. Recognizing how the first bag of drugs was packaged, Appellant, unaccompanied by the other officers, returned to continue the search based on his experience and belief that more drugs existed in the alley. Appellant found an additional plastic bag containing capsules of suspected heroin and then left the alley to show the other officers.

It was at that time Appellant was reminded that his BWC was not in activation mode. Appellant then reentered the alley, placed the drugs in a red can, and arranged the can under debris near where he alleged he initially discovered the drugs. After the drugs were in place, Appellant exited the alleyway, activated his BWC, and is heard saying, “I’m going to check here.” He then reentered seconds later to “reenact” his search and the discovery of the additional bag of heroin. Appellant picked up the can and pulled out the bag of heroin.

He is heard to say, “yo,” then displayed the narcotics in front of the camera as if he had discovered the drugs for the first time. Unbeknownst to Appellant at the time, the buffering footage4 captured video of him placing the drugs in the can and exiting the 4 The Baltimore City Police Department General Order Policy 824 on BWC defines buffering mode as follows: When Powered On, but not activated, the BWC captures video but not audio. The video is not stored in permanent memory until BWC activation. Once Activated, the BWC will permanently store video captured 30 seconds prior to the BWC Activation, and all audio and video captured until Deactivation.

This definition is quoted from the BWC policy published on January 1, 2018. This version was not available at any time relevant to the facts of this case. 3 alley. Appellant subsequently submitted the video to evidence.com5 at the end of his work shift, however, he did not make any effort to document his failure to record the initial search and seizure or make clear that the video he submitted was a “reenactment.” A man was subsequently charged with possessing the drugs Appellant had found in the alleyway. The Assistant State’s Attorney (ASA) assigned to prosecute the case received the BWC footage for review and learned that the video appeared to portray Appellant staging the evidence.

When the ASA contacted Appellant for an explanation, he admitted that he arranged the drugs and reenacted the recovery because “they ding us for holidays if we forget to turn our [BWC footage] on.” Appellant testified similarly at trial that he created the video to avoid “any kind of repercussions” or “actions from the agency for failure to turn on the camera.” Appellant also admitted to another ASA in an unrelated trial that he staged a “‘do-over’…because he didn’t want to lose days” for failing to activate his BWC. Following a two-day bench trial before the Circuit Court for Baltimore City, Appellant was found guilty of fabricating physical evidence in violation of § 9-307(b) of the Criminal Law Article and misconduct in office under Maryland common law. He was sentenced to three years’ incarceration, with all but time served suspended. 5 Evidence.com is a website owned by Axon Enterprise, Inc. The company provides cloud-based digital evidence storage and management services for law enforcement agencies to manage, review, and share digital evidence, generally for video evidence captured with Axon-branded cameras. Its features include an automated redaction tool, audit trails for chain of custody purposes, and the capability to share evidence with prosecutors and third-parties.

See Axon Evidence. AXON, https://www.axon.com/products /axon-evidence (last visited Dec. 12, 2019). 4 STANDARD OF REVIEW The issue before this Court calls into question the sufficiency of evidence following Appellant’s bench trial, which we will review “on both the law and the evidence, and [we] will not set aside the judgment of the trial court on the evidence unless clearly erroneous.” Jones v. State, 178 Md. App. 454, 476 (2008); see Smith v. State, 415 Md. 174 , 184–85 (2010). The test for sufficiency of evidence asks whether “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Titus v. State, 423 Md. 548, 557 (2011) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). We will give “deference to all reasonable inferences [that] the fact-finder draws, regardless of whether [the appellate court] would have chosen a different reasonable inference.” Moody v. State, 209 Md. App. 366, 387 (2013) (quoting Robinson v. State, 209 Md. App. 174, 196 (2012)) (internal quotation marks omitted).

DISCUSSION A. Parties’ Contentions Appellant contends that the evidence at trial was insufficient to support his conviction for fabricating evidence and misconduct in office. In doing so, Appellant first disputes each element of the criminal statute serving as the basis of his convictions. Appellant argues that (1) the BWC footage does not constitute physical evidence; (2) the evidence at trial was insufficient to conclude he intended to impact the verity of the BWC footage; (3) the evidence at trial was insufficient to conclude he acted with the intent to 5 deceive a tribunal or other official proceeding; and (4) the evidence at trial was insufficient to conclude he created the BWC with the intent that it be introduced in a pending or future proceeding. Appellant also disputes the validity of his conviction under the common law crime of misconduct in office.

He argues that the evidence at trial could not have supported the finding that he committed malfeasance because the act of recording a “reenactment” is not in and of itself wrongful. In response to these contentions, the State retorts that the trial court’s verdict—that Appellant violated § 9-307(b) of the Criminal Law Article as well as the common law crime of misconduct in office—was sufficient based on the evidence presented at trial and the reasonable inferences drawn therefrom. We agree with the State. B. Analysis 1.

Fabrication of Physical Evidence The statute serving as the basis of Appellant’s conviction provides, “A person may not fabricate physical evidence in order to impair the verity of the physical evidence with the intent to deceive and that the fabricated physical evidence be introduced in a pending or future official proceeding.” Md. Code Ann., Crim. Law § 9-307 (b). Since this statute has yet to be interpreted by Maryland courts and because Appellant disputes each element of the statute, we will address each element in turn. i. Physical evidence under § 9-307(b) Appellant argues that, absent instructive language from the legislature or case law, a digital recording does not constitute physical evidence under § 9-307(b).

In contrast, the State contends that video recordings fit under the logical definition and practical 6 application of physical evidence because, “if introduced at trial, it would be marked as an exhibit and entered into evidence.” Moreover, the State notes that § 9-307(b) operates in “contrast to the nearby statutes[,] which govern influencing testimonial evidence,” and suggests that § 9-307(b) was intended to encompass evidence not testimonial in nature. To ascertain whether the legislature intended for physical evidence under § 9-307(b) to encompass BWC footage, we review the “statute’s plain language,” considering “the context of the statutory scheme to which it belongs.” Gardner v. State, 420 Md. 1, 9 (2011) (quoting State v. Johnson, 415 Md. 413 , 421–22 (2010)). The plain language of § 9-307(b) states in part that, “[a] person may not fabricate physical evidence.” Black’s Law Dictionary defines the term “physical evidence” to be interchangeable with its definition of “real evidence.” Compare Evidence, BLACK’S LAW DICTIONARY (11th ed. 2019) (defining real evidence as “physical evidence (such as clothing or a knife wound) that itself plays as a direct part in the incident in question”), with Evidence, BLACK’S LAW DICTIONARY (11th ed. 2019) (defining testimonial evidence as “a person’s testimony offered to prove the truth of the matter asserted; [especially], evidence elicited from a witness” and explaining “[a]n assertion is testimonial evidence whether made out of court or in court, if it is offered with a view to persuading the tribunal of the matter asserted”) (internal citation omitted); see also MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (11th ed. 2020) (defining testimony as “c: a solemn declaration [usually] made orally by a witness under oath in response to interrogation by a lawyer or authorized public official,” cross-referencing “testimonial” with “1: EVIDENCE, TESTIMONY,” defining evidence as “1 a : an outward sign: INDICATION b: something that furnishes proof: TESTIMONY; specf: 7 something legally submitted to a tribunal to ascertain the truth of a matter,” and defining physical as “2 a: having material existence: perceptible [especially] through the senses and subject to the laws of nature….”). Although these definitions are not mandated by law or binding, we find them persuasive in construing the nature of the BWC footage at issue.

We are also guided by the context of the statutory scheme in which § 9-307(b) belongs. See Gardner, 420 Md. at 9 . The provision appears in Subtitle 3 of Title 9 of the Criminal Law Article and is among other crimes involving the inducement of false testimony, retaliation, and witness intimidation. See Md. Code Ann., Crim.

Law § 9-302 (prohibiting harming or threatening to harm another with the intent to influence a witness to testify falsely, fail to appear to testify, or fail to report facts relating to a crime); § 9-303 (prohibiting, in part, the harming or threatening to harm