Price v. State

⁴⁹¹ DAVIS, Judge. This is an appeal from a jury trial held in the Circuit Court for Prince George’s County (Sothoron, Jr., J.) on September 6, 1995, at the conclusion of which appellant, Tyrone Price, was found guilty of carjacking and of theft of property valued at more than $300. On December 8, 1995, the trial court sentenced appellant to fifteen years incarceration, five years suspended, for the carjacking conviction and to a one-year term, to be served concurrently, for the theft conviction. Appellant presents the following questions for our review: I. Is the evidence sufficient to support appellant’s conviction for carjacking?

II

Did the trial court’s imposition of a separate sentence on the theft conviction result in an illegal sentence, since theft is a lesser-included offense of carjacking? FACTS On February 13, 1995, after arranging to have a mini-storage facility near the Landover Metro Station outside of Washington, D.C. remain open until 11:00 p.m., Valores Evans drove to the facility in her 1990 Ford Probe at approximately 10:50 p.m. When Evans arrived at the front gate of the storage facility, it was locked. Evans blew her vehicle’s horn in an attempt to gain an employee’s attention.

When that did not work, Evans got out of her car, walked toward the fence, and shouted for either one of the two men who earlier in the day had agreed to meet her at the facility. Still, there was no response from inside the gates. Evans’s shouts did, however, rouse some unwanted attention. Appellant approached Evans with his hand at his waist and said, “Shut up, bitch.” Evans turned around, realized her situation, and said, “Oh, please don’t shoot me” and ran away from the car, eventually falling to the ground.

Appellant then took Evans’s vehicle and drove away. In the early morning hours on February 14, 1995, Officer Peter Woodburn of the Metropolitan Police observed Evans’s 1990 Ford Probe driving on Stanton Road in Southeast Wash ⁴⁹² ington, D.C. at a high rate of speed and running multiple red lights. Officer Woodburn pulled up behind the vehicle and turned on his lights and siren. The vehicle then increased its speed and attempted to evade capture.

Less than five minutes later, the 1990 Ford Probe ran into a fence and came to a stop. The driver alighted from the vehicle and ran from the officer. Officer Woodburn chased the driver, but eventually lost sight of him for about ten to fifteen minutes, until another officer, Dennis Spalding, who responded to Officer Wood-burn’s call for help, found appellant lying face down behind a retaining wall surrounding a patio. Officer Woodburn identified appellant as the driver at that time and again in court.

Ten days later, on February 24, 1995, Evans was asked by Detective Darren Palmer to come to the police station. While there, Evans identified appellant’s picture in approximately twenty seconds from six presented to her in a photo array. Evans also made an in-court identification of appellant as her attacker. At the conclusion of the trial, the jury convicted appellant of both counts.

From that conviction, appellant now appeals. DISCUSSION I EVIDENCE OF INTIMIDATION OR THREAT OF FORCE Appellant contends that the trial court erred when it denied his motion for judgment of acquittal made at the end of his trial because the State failed to produce sufficient evidence to sustain his conviction. Appellant asserts that the State’s case was fatally flawed in two ways: (1) the prosecution failed to produce evidence demonstrating that appellant used force or threat of force to effect the carjacking; and (2) the prosecution failed to show that the car was in Evans’s “actual” possession at the time appellant allegedly carjacked it. Appellant argues that each of these facts must be proven beyond a ⁴⁹³ reasonable doubt to sustain a conviction for carjacking pursuant to Md. Ann.Code art. 27, § 348A (1993).

Makyland Annotated Code art. 27, § 348A (1993), created the statutory crime of carjacking and established its elements as follows: An individual commits the offense of carjacking when the individual obtains unauthorized possession or control of a motor vehicle from another individual in actual possession by force or violence, or by putting that individual in fear through intimidation or threat of force or violence. (Emphasis added). As appellant notes, no evidence was produced at trial to suggest that appellant used actual force to carjack Evans’s automobile. Hence, in order to convict appellant, the jury necessarily found that he took the car by putting Evans in fear through intimidation or threat of force or violence.

Appellant asks that we reverse his conviction in part because he argues that there was insufficient evidence to support such a finding. At the outset, appellant only claimed that there had been presented no evidence “of force or threat of force,” rather than that the evidence offered was insufficient. By failing to particularize his objection, he denied the trial court the opportunity to consider and decide the merits of the claim pursuant to Md. Rule 8-131. Consequently, he has technically waived objection to the sufficiency claim.

See State v. Lyles, 308 Md. 129, 135 , 517 A.2d 761 (1986); Ford v. State, 90 Md.App. 673, 692 , 603 A.2d 883 (1992), aff'd, 330 Md. 682 , 625 A.2d 984 (1993); Ford v. State, 90 Md.App. 673, 692 , 603 A.2d 883 (1992), aff'd, 330 Md. 682 , 625 A.2d 984 (1993). Notwithstanding appellant’s failure to preserve the issue for review, he acknowledges that when this Court reviews a criminal appellant’s contention that the State failed to produce sufficient evidence to support his or her conviction, our review is limited in nature. As this Court recently noted in Matthews v. State, 106 Md.App. 725 , 666 A.2d 912 (1995), The standard for our review of the sufficiency of the evidence is whether after viewing the evidence in the light ⁴⁹⁴ most favorable to the prosecution any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id. at 743 , 666 A.2d 912 (citations omitted).

Hence, we shall reverse appellant’s conviction only if no rational trier of fact could have concluded that appellant took Evans’s car by-putting her in fear through intimidation or threat of force or violence. In the case sub judice, the State produced sufficient evidence from which a rational trier of fact could have found that Evans was in fear at the time appellant carjacked her automobile. As Evans was attempting to gain entry to the storage facility, appellant walked up behind her and stated, “Shut up, bitch.” When he said this, according to Evans’s testimony, one of appellant’s hands was near his waist and, as a result, she believed he had a gun. In fact, Evans stated that appellant’s order “frightened [her]” and that she believed appellant was going to shoot her.

Because Evans was actually in fear at that time, she ran away and appellant was able to take her car. Appellant argues that it was unreasonable for Evans to have been in fear merely because he said, “Shut up, bitch,” and had one arm by his waist. We disagree. Evans was by herself at approximately 10:50 p.m. and was accosted in a threatening manner.

Appellant asserts that his statement, “Shut up, bitch,” was no more than an admonition to Evans to stop yelling and implied nothing else. To the contrary, this comment, by itself, under these circumstances would be enough to cause the average person to be put in fear. ACTUAL POSSESSION UNDER § 348A Appellant chronicles the sordid events that spawned the legislation in the 1993 Session of the General Assembly involving the tragic death of Pamela Basu at the hands of Rodney Solomon and Bernard Miller. In his brief, appellant refers to the enactment of § 348A in the 1993 Session of the General Assembly “in response to the alarming escalation of armed ⁴⁹⁵ hijacking of vehicles” and specifically as a result of the case of Pamela Basu who was dragged to her death when her arm became entangled in the vehicle’s seatbelt after defendants Rodney Solomon and Bernard Miller forcibly took her car and drove away with her daughter in the backseat.

Appellant observes in his brief that Steven B. Larsen of the Governor’s Legislative Office testified to 445 carjacking incidents within the first nine months of 1992, in which twelve people were seriously injured or killed and that thirty-nine others received minor injuries. He also references the statement of Myron V. Wotring, Governmental Relations Officer of Anne Arundel County, in support of Senate Bill 339, referring to the terror of the victim “being ordered out of one’s vehicle at gun point.” The testimony of Larsen, speaking for the Governor’s Legislative Office, set forth in appellant’s brief, included the observation that the “death of Pamela Basu in Howard County during a carjacking demonstrated the brutal dangers associated with the theft of an occupied motor vehicle.” Larsen’s testimony concluded that “the automobile can no longer be considered a safe haven.” According to appellant, the amendment to the bill “indicates clearly that the legislature intended that the statute apply to thefts of occupied vehicles.” At the outset, appellant’s principal argument regarding actual possession is that the language of the statute was intended only to apply to a victim seated within the interior of the vehicle at the point when it is commandeered. This contention is based on the premise that the legislation was intended to apply only to “occupied vehicles.” This argument is akin to, but slightly different from, the assertion that the victim was several feet from the vehicle at the time the car was driven away, a circumstance which resulted because the victim fled in fear of her assailant. Where the victim was when the assailant drove off with her car need not detain us long because whether the victim fled after being accosted while inside her car or, in the alternative, next to the hood, the result is the same.

In either event, the vehicle would have been commandeered when the victim was initially accosted by ⁴⁹⁶ appellant not at the point in time when she had fled some distance from the vehicle. Consequently, that appellant drove off at a point in time when there existed some distance between where the victim was and the point from which the car was driven away is of no moment. Her flight was the result of fear generated by the actions of appellant. Turning to the question of whether the legislature intended the statute only to apply to “occupied vehicles,” appellant stresses the legislative history in an attempt to discern the intent of the legislature.

The goal of statutory construction is to ascertain and effectuate the legislative intent. Jones v. State, 336 Md. 255, 260 , 647 A.2d 1204 (1994); Mustafa v. State, 323 Md. 65, 73 , 591 A.2d 481 (1991). To determine legislative intent, the reviewing court looks “first to the words of the statute, read in light of the full context in which they appear and in light of external manifestations of intent or general purpose available through other evidence.” Richmond v. State, 326 Md. 257, 262 , 604 A.2d 483 (1992), quoting Cunningham v. State, 318 Md. 182, 185 , 567 A.2d 126 (1989). In so doing, the court gives the language of the statute its ordinary and common meaning.

Richmond, 326 Md. at 262 , 604 A.2d 483 . Moreover, statutory language is analyzed from a “commonsensical” rather than a technical perspective, with the reviewing court seeking to avoid giving the statute a strained interpretation or one that reaches an absurd result. Id.; Dickerson v. State, 324 Md. 163, 171 , 596 A.2d 648 (1991). It is axiomatic that the cardinal principle of statutory interpretation is that the words of the statute must be accorded their ordinary meaning.

Condon v. State, 332 Md. 481, 491 , 632 A.2d 753 (1993); Reisch v. State, 107 Md.App. 464, 480 , 668 A.2d 970 (1995). In that regard, it is significant that the statute itself refers to an individual obtaining unauthorized possession or control “from another individual in actual possession by force or violence.” Nowhere does the statute refer to an “occupied motor vehicle.” In an attempt to equate Evans’s possession of her vehicle as constructive, appellant cites Nutt v. State, 9 ⁴⁹⁷ Md.App. 501, 508, 267 A.2d 280 (1970) (holding that a conviction for control of a narcotic drug is duplicitous with one for constructive possession) and Cable v. State, 65 Md.App. 493, 498 , 501 A.2d 108 (1985) (holding that the possession of a ticket for a briefcase was tantamount to possession of the briefcase itself). Admittedly, the language of § 348A does not contemplate constructive possession nor must we consider such an interpretation. Appellant asserts “a victim who is not in the car is not in ‘actual’ possession of it; she possesses the car constructively.” We disagree.

When accosted by appellant, Evans was positioned outside of her car along side of the hood. It matters not that, once Evans ran away from the car and fell in reacting to being accosted by appellant, as appellant indicates “at that