Rich v. State

RAKER, J. Mark Terrill Rich, appellant, challenges the sufficiency of the evidence to support his convictions in the Circuit Court for Caroline County for the offenses of possession with intent to distribute cocaine, resisting arrest, and second-degree escape. We shall hold that the evidence was insufficient to support the judgments of conviction for possession with attempt to distribute cocaine and resisting arrest, and shall reverse in part. As to the offense of second-degree escape, we shall hold that the ²³¹ evidence was sufficient to sustain that judgment of conviction, and shall affirm in part. I. Appellant was charged in a criminal information in the Circuit Court for Caroline County with the following eight counts: (1) possession of a controlled dangerous substance, cocaine, with intent to distribute; (2) possession of cocaine; (3) escape in the second degree; (4) possession of marijuana; (5) conspiracy to possess marijuana; (6) resisting or interfering with arrest; (7) disorderly conduct; and (8) failure to obey a lawful and reasonable order of a law enforcement officer.

He proceeded to trial before a jury, which convicted him of possession with intent to distribute cocaine, possession of cocaine, possession of marijuana, resisting arrest, and second-degree escape. The facts in the instant case are not in controversy; the parties differ only as to their legal significance. On February 20, 2009, at approximately 11:00 p.m., Corporal Eric Peterson of the Caroline County Sheriffs Department was on drug patrol as a K-9 officer, accompanied in his patrol car by a drug-detecting dog. He stopped the vehicle in which appellant was a passenger for an inoperative right taillight.

Jennifer Smith, appellant’s girlfriend, was driving the car. Ms. Smith and appellant got out of the car. Ms. Smith consented to a search of her person, and no drugs were found. Appellant consented to a search of his person, but when the officer removed appellant’s hat from his head a bag of marijuana fell into the officer’s hand.

At that moment, appellant “took off on foot and tried to flee and elude the scene.” The officer apprehended appellant about ten to twelve feet from Ms. Smith’s vehicle, tackling him to the ground. Corporal Peterson told appellant he was under arrest, placed his hands behind his back, and handcuffed him. The officer then picked appellant up from the ground and led him to the back of Ms. Smith’s car. Two additional police patrol cars had since arrived.

When Corporal Peterson bent down to pick up the marijuana from the ground, appellant ran off again, this time ²³² in the direction of a residence to the right of the stopped cars. Corporal Peterson again tackled appellant to the right of the house and convinced appellant not to run anymore. Appellant admitted then that the marijuana was his and stated that Ms. Smith did not know he had it. Corporal Peterson searched the car and appellant and found no other controlled dangerous substances.

He checked the area around the house with a flashlight but not with the dog. Two to three days later, Corporal Peterson received a phone call and, as a result, returned to the area of the arrest. He met with Patricia Blunt, a resident of the home near which Corporal Peterson tackled appellant after his second flight. Ms. Blunt gave the officer several small bags containing crack cocaine.

She said she found them in the flowerbed near her home where she runs a daycare service. At trial, Ms. Blunt testified that she had been working in her garden three days before appellant’s arrest and did not see the cocaine at that time. She also testified that she did not believe anyone else had been in the area around her flowerbed between the night appellant was arrested and the day she found the bags. At trial, when asked by the prosecutor about any trouble the officer may have had when appellant was handcuffed and arrested, Corporal Peterson stated: “No real trouble.

I mean anytime you try to handcuff somebody behind their back usually there’s a bit of a defensive motion, but he wasn’t offensive in nature or anything like that.” Two other officers testified for the State. Corporal Leonard Nichols, a Maryland State Police officer, assigned to the Caroline County Drug Task Force, was present at Corporal Peterson’s stop and arrest of appellant. Corporal Nichols testified that he searched appellant’s cell phone and he saw a couple of text messages that stated “hey mister I need a 20” and “I need a 20.” Sergeant Ronald Crouch, also of the State Police and assigned to the Caroline County Drug Task Force, was qualified as an expert in the illegal drug trade and testified that the text messages on appellant’s phone were “consistent with a user texting a dealer attempting to set up a ²³³ purchase of $20 worth of crack cocaine.” He testified that frequently drug dealers hide small bags of drugs in their mouths. Appellant testified at trial and admitted to possession of the marijuana but denied that he possessed any crack cocaine that evening.

Appellant moved for judgment of acquittal on all counts, and the following colloquy occurred: “[DEFENSE COUNSEL]: As to Count Six, resist and interfere with arrest. As to the interfere with arrest, that portion of it is interfering with the arrest of another. As to the resisting arrest itself, basically the testimony of the officer was that he wasn’t offensive, he was a little defensive, kind of went dead and it was hard to get him handcuffed. I believe there is case law and I can look it up and it’s in the case law behind the statute, basically going limp so it’s harder to arrest somebody does not equal resisting arrest, Your Honor.

I don’t think in the best light there’s a resisting arrest in this case.” THE COURT: You don’t think fleeing is a resistance to the arrest? [DEFENSE COUNSEL]: I guess I would go there, that would probably be covered by the second degree escape charge, Your Honor, the fleeing portion of it. This is the actual arrest portion. That’s the argument I would be making. THE COURT: What do you say, [prosecutor]? [PROSECUTOR]: Your Honor, on the contrary, the second degree escape comes into play once an individual’s actually been placed into custody.

Physically laid hands, has been arrested, is in the control of law enforcement, which Mr. Rich was when he was tackled to the ground in the road. He was then placed in handcuffs, in between cars. It’s that second flight that is the second degree escape. That first flight, Your Honor, I agree with the Court consists, is consistent with a resisting of arrest. [DEFENSE COUNSEL]: I would counter, rebut that by saying he wasn’t placed under arrest until the end of that ²³⁴ first flee, is when the officer testified he placed him under arrest so that first flee by the officer’s testimony wouldn’t count.

THE COURT: I have him, let’s see. The first fleeing was not, he was not placed under arrest. He was then arrested and the second time he ran off he, he had, yeah, that was after he had been arrested. Well, I think I’ll let it go to the jury on resisting arrest.

Motion is denied as to Count Six.” The court heard argument from counsel as well regarding the possession with intent to distribute cocaine and denied the motion. As to the charges of second-degree escape and possession of cocaine and marijuana, there was no additional argument, and the court permitted the charges to go to the jury. The court did, however, dismiss the conspiracy, disorderly conduct, and failure to obey charges. In the State’s closing argument to the jury, the State made clear that the conduct it was relying on to support the charge of resisting arrest was not appellant’s second flight, that is, after he was handcuffed, but instead was appellant’s first flight, when his marijuana was discovered and he ran from the officer, along with appellant’s failure to cooperate with the officer when he attempted to place the handcuffs on him.

For the escape charge, the State relied on appellant’s flight after he was formally arrested and handcuffed. The jury convicted appellant. The circuit court sentenced appellant on the distribution charge to a term of incarceration of twelve years, with all but six years suspended; on the cocaine possession charge, to a concurrent, four-year term; on the escape charge, to a consecutive two-year term; on the marijuana possession charge, to a concurrent one-year term; and on the resisting arrest charge, to a concurrent, three-year term. The court further ordered three years of supervised probation following release.

This timely appeal followed.

II

Before this Court, appellant argues that the evidence was insufficient to support the offenses of possession with intent to ²³⁵ distribute cocaine, escape in the second degree, and resisting arrest. 1 The test for sufficiency of the evidence is well-settled: Whether, after reviewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979); State v. Coleman, 423 Md. 666, 672 , 33 A.3d 468 (2011). We address first the possession with intent to distribute crack cocaine. Appellant asserts that in order to convict him of possession of cocaine with intent to distribute, the State must prove beyond a reasonable doubt that he was aware of the presence of the cocaine and that he exercised dominion and control over the substance, either actual or constructive.

Here, the only evidence linking appellant to the cocaine is that he was in the proximity of the Blunt residence a few days before the substance was recovered. Additionally, even assuming arguendo that appellant’s text messages were drug related, there is no evidence that the cocaine Corporal Peterson found in Ms. Blunt’s flower garden was ever possessed by appellant. Ms. Blunt testified that she last went into her flower garden on February 17, 2009, and that she found the drugs on February 23, 2009, six days later. The State argues that the evidence was sufficient to support this conviction beyond a reasonable doubt.

The State relies on Corporal Peterson’s testimony that appellant, when he fled, came within five feet of Ms. Blunt’s flower garden; that three days later Ms. Blunt found the cocaine; and that three days earlier, when she had been working in the garden, the cocaine was not there. She testified that to her knowledge, no one had been near the flowerbed between the time of the traffic stop and when she discovered the bags containing the cocaine-like substance. She said also that, except for a short trip to the grocery store, she was at home during that period of time; that there is very little foot traffic near her home; and that ²³⁶ she did not see anyone walk past the house in the three days following appellant’s arrest. The State relies on Sergeant Crouch’s testimony that drug dealers hide drugs in their mouths frequently and that these bags could have fit inside appellant’s mouth.

Additionally, the officer testified that appellant’s cell phone text messages were consistent with a drug user texting a dealer attempting to purchase $20 worth of crack cocaine. We agree with appellant and hold that the evidence was insufficient to find beyond a reasonable doubt that he possessed the cocaine found in Ms. Blunt’s flower garden. To sustain a conviction for possession of cocaine with intent to distribute, the State must prove that: (1) the defendant knowingly possessed the cocaine; (2) the defendant knew the general character or illicit nature of the cocaine; (3) that the substance actually was cocaine; and (4) that the defendant intended to distribute some or all of the cocaine. See Jefferson v. State, 194 Md.App. 190, 214-15 , 4 A.3d 17 (2010); Colin v. State, 101 Md.App. 395, 406-08 , 646 A.2d 1095 (1994).

It is the first element of the offense that is particularly relevant here. With respect to the first element, there must be sufficient evidence of either actual or constructive possession. See Taylor v. State, 346 Md. 452, 457 , 697 A.2d 462 (1997). In other words, the evidence must demonstrate directly or support a rational inference that the defendant actually exercised some dominion or control over the cocaine, i.e., that he “exercised some restraining or directing influence over it.” Jefferson, 194 Md.App. at 214 , 4 A.3d 17 .

The mere presence of a person at the time and place of a crime is not sufficient to justify a conviction for the commission of that crime, nor, particularly, is presence at the scene three days before a controlled dangerous substance is recovered by law enforcement. See Fleming v. State, 373 Md. 426, 433 , 818 A.2d 1117 (2003). Knowledge of the presence of drugs is another necessary element of the offense and must be proven beyond a ²³⁷ reasonable doubt. See Handy v. State, 175 Md.App. 538, 563 , 930 A.2d 1111 (2007).

While this knowledge may be inferred from a defendant’s exclusive possession, ownership, or control of the premises, when a defendant is not in exclusive possession of the premises or location where the drugs were found, knowledge may not be inferred unless there are other circumstances tending to support an inference of knowledge or control. Id. Even though under some circumstances nonexclusive possession may suggest that all the occupants of a residence or car had knowledge of the contraband found there, mere suspicion is not enough. Some evidence that connects a defendant with the contraband is required.

Id. Under the circumstances presented here, appellant’s presence near the flowerbed where the cocaine was found, three days prior to the discovery of the contraband, in a place accessible to the general public, is insufficient. Although it is possible that appellant possessed the cocaine in question, and that he might have thrown it in the flowerbed that evening, the evidence is speculative and amounts to mere suspicion. Corporal Peterson testified that when appellant was first apprehended, and before he was near Ms. Blunt’s residence, appellant consented verbally to a search of his person.

No cocaine was recovered. The State emphasizes Corporal Peterson’s testimony that appellant spoke few words prior to his second flight but became more talkative after Corporal Peterson had stopped him near Ms. Blunt’s house. But the possibility that a drug dealer could conceal drugs, and that in fact appellant did conceal five plastic bags in his mouth, is nothing more than speculation. Six days had passed since Ms. Blunt had been in her flower garden and other people had access to the area where the cocaine was recovered.

Appellant was not in exclusive control of the flowerbed and, in fact, was never in control of the area. More than evidence of his proximity or presence was required to show that appellant had control over the cocaine. The evidence presented by the State was insufficient to meet the standard of proof beyond a reasonable doubt, and thus appel ²³⁸ lant’s convictions for possession with intent to distribute cocaine must be reversed.

III

We turn next to the issue of the sufficiency of the evidence for escape and for resisting arrest. In addition to our consideration of the sufficiency of the evidence for both of those crimes, this case causes us to consider the elements of resisting arrest, second-degree escape, and the relationship between the two. Before this Court, appellant argues that the evidence was insufficient to support his convictions for both resisting arrest and second-degree escape. He points out that mere flight before a person is arrested cannot constitute resisting arrest, and that because the State insisted that the resisting arrest charge was based only on appellant’s flight before he knew he was placed under arrest, the conviction cannot stand. 2 Appellant argues, however, that he cannot be convicted of resisting arrest based upon the second flight because the State only argued that the conduct constituting resisting arrest was the first flight.

The State asserts that the flight before appellant was handcuffed and told he was under arrest was sufficient to support the resisting arrest conviction as well as when he “ ‘strain[ed] his arms ... straight out’ instead of allowing the officer to place handcuffs on him.” With respect to the escape charge, the State contends that appellant’s argument is merit-less because he was in custody. ²³⁹ A. Resisting Arrest Resisting arrest is a crime in Maryland. It was a common-law offense until 2004 when the General Assembly codified it. 3 See Nicolas v. State, 426 Md. 385, 402-05 , 44 A.3d 396 (2012); 2004 Maryland Laws chs. 118 & 119, at 546-49 (codified as amended at Md.Code (2002, 2011 Cum.Supp.), § 9-408(b)(1) of the Criminal Law Article). 4 The statute, in pertinent part, merely codifies the common law and provides that “[a] person many not intentionally resist a lawful arrest.” The General Assembly did not define the term “resist a lawful arrest,” or demonstrate any intention to modify the common law. Moreover, this Court has held that § 9-408 “is referring to the well-defined parameters of Maryland common law concerning resisting arrest.” McNeal v. State, 200 Md.App. 510, 528 , 28 A.3d 88 (2011). Hence, the elements of resisting arrest remain defined by the common law, and we must revisit the case law to examine them. 5 ²⁴⁰ Upon reviewing the precedents of this Court and the Court of Appeals, however, we discover an inconsistency that neither party has brought to our attention.

The particular cases, while not focusing specifically on whether force is a required element of resisting arrest, have sent mixed signals as to whether force is necessary or whether simple failure to submit to an arrest is sufficient to constitute the crime. See, e.g., Purnell v. State, 375 Md. 678, 695-96 , 827 A.2d 68 (2003); Barnhard v. State, 325 Md. 602, 609-10 , 602 A.2d 701 (1992); Preston v. Warden of Md. House of Corr., 225 Md. 628, 629-30 , 169 A.2d 407 (1961); Washington v. State, 87 Md.App. 132, 137-38 , 589 A.2d 493 (1991). All the cases in Maryland seem to set out the first two elements of the offense consistently. The problem arises in setting out the third element of the offense, i.e., whether force or threat of force is a required element or whether simply refusal to submit to the arrest is sufficient.

Even in Nicolas v. State, the most recent reported case to address resisting arrest, where the use of force was central to one of the issues on appeal, the Court of Appeals set forth both formulations. See 426 Md. at 404-06 , 44 A.3d 396 . In order to convict a defendant of resisting arrest, the elements the State must prove, in addition to the mens rea element, are as follows: (1) that a law enforcement officer arrested or attempted to arrest the defendant; (2) that the officer had probable cause to believe that the defendant had committed a crime, i.e., that the arrest was lawful; and (3) that the defendant refused to submit to the arrest [either “and” or “or ”] resists the arrest by force. The preliminary question we must answer is whether element (3) should state “that the defendant refused to submit to that arrest or resisted the arrest by force” or “that the defendant refused to submit to that arrest and resisted the arrest by force.” The first formulation would make refusal to submit sufficient to sustain a conviction; the second would require forceful resistance in addition to a failure to submit. ²⁴¹ The issue is dispositive here, for while appellant’s flight could amount to a refusal to submit, it cannot be characterized fairly as resistance by force under the common law and, now, the statute.

If only refusal is required, his conviction for resisting arrest was proper; if both refusal and resistance are required, the conviction was improper. Professor Perkins, in his treatise Criminal Law, describes the offense of resisting arrest as a form of obstructing justice. See R.M. Perkins & R.N. Boyce, Criminal Law 553 (3d ed.1982). The offense of obstruction of justice “is an offense which may take a variety of forms,” and resisting arrest is one of its most common.

Id. (internal quotation marks omitted); see also Model Penal Code § 242.2 cmt. 1 (1980) (“Resisting arrest is perhaps the most common form of obstruction of justice.”). Another form of obstruction of justice is the common-law crime of obstructing or hindering a police officer in the execution of his lawful duties, an offense that may be committed in a broader array of situations than resisting arrest. See Perkins, Criminal Law at 555 (noting that “[o]bstruction of justice may be committed by interference with an officer’s discharge of duties other than that of making an arrest”); see also L. Hochheimer, The Law of Crimes and Criminal Procedure 436 (2d ed. 1904) (stating that “[t]o ‘obstruct’ includes any impediment, direct or indirect, active or passive, to the execution of process or exercise of authority”).

See generally Titus v. State, 423 Md. 548, 558-65 , 32 A.3d 44 (2011) (discussing the elements of obstructing or hindering). As we have noted, the difficulty we face in this case is in determining the law with respect to one particular element of the offense of resisting arrest, ie., the type of conduct encompassed by the word “resist” in the offense known as “resisting arrest.” The case law is not so clear. The key to resolving the problem—and the mixed signals from the Court of Appeals—is perhaps found in the case of Busch v. State, 289 Md. 669 , 426 A.2d 954 (1981), wherein the Court recognized that both forms of obstruction of justice discussed above use the term “resisting.” In Busch , the defendant had been charged in District Court of Maryland with the offense of “unlawfully ²⁴² resisting] and hindering] a police officer in the lawful execution of his duties.” Id. at 671 , 426 A.2d 954 . He was found guilty in District Court and he appealed to the Circuit Court for Prince George’s County.

Id. At a trial de novo, the circuit court permitted the State to amend the charges to allege that Busch “did unlawfully resist arrest by a police officer in the lawful execution of his duties.” Id. The issue before the Court of Appeals was whether the amendment to the charging document changed the character of the offense, a change not permitted without the consent of the defendant under then-Maryland Rule 713. 6 The Court of Appeals considered “whether the offense of resisting arrest requires proof of an act different from or additional to the acts necessary to prove the offense of resisting, hindering, or obstructing an officer in the performance of his duties.” Id. at 673 , 426 A.2d 954 . Writing for the Court, Judge Rita Davidson explained that under the common law there were two separate yet related crimes: one, resisting arrest, and the other, the offense of resisting, hindering, or obstructing an officer in the performance of his duties.

Id. at 675 , 426 A.2d 954 . The Court was looking to see the difference, if any, in the required elements of the two similar but distinct offenses. Judge Davidson noted that “[rjesisting arrest constitutes an offense at common law.” Id. at 673 , 426 A.2d 954 . She explained as follows, noting the forceful and violent character of the conduct undergirding the resisting arrest charge: “The character of this common law offense was described in Regina v. Bentley, 4 Cox C.C. 406, 406-08 (1850).

There it was said: ‘The prisoner was indicted for cutting and wounding with intent to resist his lawful apprehension: the evidence showed that the prosecutor, a police constable, went with a brother officer, both being in plain clothes, and with two other policemen in uniform, to a public-house, and told the ²⁴³ prisoner that he wanted him on a charge of highway robbery. He had no warrant, but from information he had received, he thought it his duty to apprehend the prisoner. The latter asked him for further information relative to the charge, which he refused to give, and the prisoner then told him that he would not go to the station-house, unless he was told why, or by what authority, he was apprehended. On the witness immediately proceeding to arrest him, the prisoner violently assaulted and seriously injured him.

Robinson (for the prisoner) contended that, upon this evidence, the prisoner could not be convicted of the crime alleged against him.... Talfourd, J.-—I am of opinion, that the objection taken is not well founded. There is, upon the evidence, a sufficient case for the jury. I think that, to support a charge of resisting a lawful apprehension, it is enough that the prisoner is lawfully apprehended, and it is his determination to resist it’ ” Id. at 673-74 , 426 A.2d 954 (alteration and emphasis in original).

The Busch Court went on to discuss the case of Preston v. Warden of Maryland House of Correction. Preston resisted when a state trooper attempted to arrest him for larceny. He was charged subsequently with “resisting an officer in making arrest,” and was convicted. See Busch, 289 Md. at 674 , 426 A.2d 954 (citing Preston, 225 Md. at 629 , 169 A.2d 407 ).

On appeal, Preston argued, inter alia, that the offense of resisting arrest was not recognized in Maryland. Judge Davidson noted that the Court rejected Preston’s argument: «In Preston , this Court recognized that the offense of resisting arrest ordinarily requires resistance to a lawful arrest made by an officer of the law in the performance of his official duties. Accordingly, in Maryland, a lawful arrest ordinarily is essential to the offense of resisting arrest.” Busch, 289 Md. at 675 , 426 A.2d 954 (citations omitted). The Court of Appeals then went on to consider the separate common-law offense of resisting, hindering, or obstructing an ²⁴⁴ officer of the law in the performance of his duties, noting that there existed such a separate offense at common law.

See id. (citing, inter alia, Roddy v. Finnegan, 43 Md. 490, 505 (1876); Perkins, 'Criminal Law at 496-97; Hochheimer, Criminal Law at 435-36, 440). The specific conduct punishable under this broader offense, in contrast to conduct punishable as resisting arrest, did not need to rise to the level of violence or resistance and could be verbal in nature. The Court explained the type of conduct that constituted the offense of resisting, hindering, or obstructing as follows: “The character of such a common law offense was described as long ago as 1634 in Sheffelds Case, Clayt. 10, 10-11 (1634).

There it was said: ‘An Action of false imprisonment brought against a Constable, who pleaded not guilty, the Defendant did shew in evidence, that he came to search in time of the plague for lodgers in the town, and he found a stranger and questioned him which way he came into the town; who answered, over the bridge, and the Judge conceived this to be a scornfull answer to an Officer, and because he had no Passe, but travelled without one, and gave such an answer, the Defendant did offer to apprehend him, and the Plaintiffe thereupon being present said to the Defendant he shall not go to prison, but yet offered to passe his word for his forth coming, upon which the Defendant did commit the Plaintiffe, and it was ruled upon evidence, there was good cause to commit the Plaintiffe for opposing the Constable though but verbally in his Office, who is so ancient an Officer of the commonwealth. ’ (Emphasis added.) In Maryland, such an offense was recognized in Roddy v. Finnegan, 43 Md. at 500-05 . There, Curran sold a wagon-load of hay to Finnegan that was delivered by a driver to the street in front of Finnegan’s stable. Either Finnegan or Curran directed the driver to put the hay in a window opening into Finnegan’s stable loft. The driver drove the wagon onto the pavement below the window in violation of a city ordinance that made it a crime to drive a wagon onto ²⁴⁵ the pavement of a street.

When Roddy, a police officer, arrived on the scene, he asked why the wagon was on the pavement and ordered the wagon to be removed. After Finnegan told the officer to stop interfering with his business, Roddy told Finnegan that he was under arrest. In response to Finnegan’s statement that he was going home, Roddy seized him. Finnegan sued Roddy for assault and battery.

Roddy defended on the ground that he was justified in using a reasonable amount of force because he was making a lawful arrest. Judgment was entered against Roddy. This Court, holding that Roddy was making a lawful arrest and was, therefore, justified in using a reasonable amount of force, reversed and remanded for a new trial. In reaching this result, this Court relied upon two separate grounds for its finding that Roddy was engaged in making a lawful arrest.

Initially, it stated that Finnegan had violated the ordinance either because he had himself directed the driver to drive the wagon onto the pavement or because he had silently acquiesced in that action. Secondly, it specifically stated: ‘If Finnegan had not been concerned in the violation of the Ordinance, yet, if when Roddy was inquiring into the circumstances, to enable him to ascertain the offending party, Finnegan obstructed him in the discharge of his duty; such conduct was unlawful, and justified Roddy in arresting him.’ [Roddy, 43 Md. at 505 .]” Busch, 289 Md. at 675-77 , 426 A.2d 954 . Because the Roddy Court acknowledged that obstructing an officer in the performance of his duties was an offense that could occur even before there was an arrest, the Busch Court concluded that “an arrest is not essential to the offense of resisting, hindering, or obstructing an officer in the performance of his duties.” Id. at 677 , 426 A.2d 954 (citing Roddy, 43 Md. at 505 ). Notably, in both cases discussed by the Busch Court—Shejfelds Case and Roddy v. Finnegan—an individual could resist, hinder, or obstruct an officer’s duties through ²⁴⁶ verbal acts; physical action was not at issue or apparently required.

Whereas, in formulating the offense of resisting arrest, Judge Davidson recounted that in Regina v. Bentley the defendant “violently assaulted and seriously injured” the police officer who was trying to arrest him. Since the necessity of a lawful arrest distinguished the two offenses, the Busch Court did not delve further into what type of conduct constitutes “resistance” for purposes of sustaining a charge of resisting arrest, or articulate the distinction between the types of conduct that the two offenses embrace. Thus, because the sufficiency of the specific conduct at issue in a resisting arrest charge has been in controversy in Maryland rarely, if at all, Maryland courts have been less than uniform in describing that element. In Preston v. Warden of Maryland House of Correction, for example, the Court observed that “[a] refusal to submit to lawful arrest and resistance to an officer of the law in the performance of his duties constitutes an offense at common law.” 225 Md. at 629 , 169 A.2d 407 (emphasis added).

The Court cited treatises on the common law to confirm this rule, such as Wharton’s Criminal Law & Procedure, which states that “[rjefusal to submit to arrest and resistance to an officer acting in the execution of his official powers constitute an offense indictable at common law.” See id. (citing, inter alia, 4 Wharton’s Criminal Law and Procedure § 1617 at 284 (12th ed. 1957)). When resisting arrest was considered again in Barnhard v. State, however, the explanation of the required elements had changed. Barn-hard was present at the scene of a bar stabbing and became uncooperative, loud, obscene, and threatening when police sought to question him or prevent him from interfering with their investigation.

When officers informed him that he was being arrested for disorderly conduct and began to handcuff him, Barnhard “broke free and started swinging the loose handcuff at” them, leading to a scuffle. See 325 Md. at 606-07 , 602 A.2d 701 . On appeal, Barnhard’s essential claim was that his resistance to arrest was justified because he was arrested illegally. Thus, he argued, the evidence was insufficient to sustain his ²⁴⁷ conviction for resisting arrest.

Id. at 607 , 602 A.2d 701 . The Court considered the instructions the trial court gave to the jury: “The court then instructed the jury on the elements of the crime of disorderly conduct, followed by a detailed instruction on the elements of the crime of resisting arrest. The court stated that the' prosecution had the burden of proving that: 1) the defendant was arrested; 2) the arrest was lawful; and 3) the defendant resisted or refused to submit to that arrest.” Id. at 609-10 , 602 A.2d 701 (emphasis added). Note that the Bamhard Court inexplicably changed the “and” in Preston to “or.” The change did not affect the outcome in Bamhard because his actions constituted clearly a refusal to submit and resistance by force, and whether force was a necessary element of the crime was not at issue in the case.

Yet the inconsistency remained in future formulations of the offense. In Purnell v. State, to cite an example, Chief Judge Bell, writing for a unanimous Court, discussed both Preston and Barnhard , and reiterated the elements of resisting arrest, holding as follows: “The elements of the offense of resisting arrest, we have stated, are: refusal to submit to lawful arrest and resistance to an officer of the law in the performance of his duties. See Preston v. Warden of Maryland House of Correction, supra, 225 Md. at 629, 169 A.2d at 408 ; Accord, State v. Huebner, 305 Md. 601, 608 , 505 A.2d 1331, 1334-1335 (1986); Busch v. State, supra, 289 Md. at 673 , 426 A.2d at 956 ; and Matter of Nawrocki, 15