Shannon v. State

Nazarian, Arthur, Raymond G. Thieme, Jr. (Senior Judge, Specially Assigned), JJ. Thieme, J. ²³⁷ As the Cannon family was moving into a new home in Baltimore, they were fired upon, then threatened by an armed neighbor who vowed to burn the residence. A jury in the Circuit Court for Baltimore City acquitted Teddy Shannon, appellant, of charges in the shooting but convicted him of threatening arson and illegally possessing a firearm after a disqualifying conviction. ⁷⁸⁹ Appellant was sentenced to a total of seventeen years and ordered to pay restitution of $ 2,400, as reimbursement for the Cannons' security deposit and first month's rent under the lease they abandoned after this altercation. Appellant presents the following issues for our review: 1.

Must Appellant's conviction and sentence for possession of a regulated firearm be vacated because it is based upon an indictment that fails to charge an offense? 2. Did the trial court err in ordering restitution? For reasons that follow, we conclude there are no grounds to vacate appellant's convictions or the restitution order. In resolving the restitution challenge, we apply lessons from the Court of Appeals' recent holding in In re G.R ., 463 Md. 207 , 205 A.3d 917 (2019), considering the "direct result" standard for restitution under Md. Code, § 11-603(a) of the Criminal Procedure Article ("CP") as it relates to costs incurred "to ²³⁸ restore and maintain the sanctity and security" of a household made insecure by criminal activity.

In the circumstances presented here, we conclude that the trial court did not err or abuse its discretion in ordering restitution for a lease payment for premises abandoned by the victims after appellant threatened to burn down the building. BACKGROUND On December 10, 2016, Jason Cannon and his family "were moving into the house on the corner" at 1738 East 30th Street in Baltimore. Before taking possession of the premises, Latonya Coleman-Cannon paid their landlord $ 2,400, representing a security deposit and the first month's rent. Appellant lived across the street, at 1735 East 30th Street.

That evening, Mr. Cannon and a friend had just parked on the street in front of the new residence when Cannon "heard multiple shots" and "tires screeching." As Cannon got out of his car, "a guy from across the street approached" them, carrying a gun, "and said, what's up with you all, yo?" Cannon also heard someone say, "pick up all the shells, yo." While Cannon was walking up the steps into the new house, he heard conversation among the crowd gathered in the street, concerning a distinctive white Lexus SUV targeted in the shooting. Cannon knew his stepson had been driving to the new house with a friend, in his mother's white "old school" Lexus SUV. Cannon turned around and confronted the group, asking "why were they shooting at us." Appellant, who was carrying a gun, answered, "[T]his is my block. I protect my block.

We shoot first, ask questions second." After his friend pulled him into the house, Cannon was able to contact his stepson and his companion, who were "up the block[.]" When Cannon drove to them, he discovered that the Lexus had shattered windows and was "riddled with bullets." He called 911, then returned to the new house. While they waited for police, Ms. Coleman-Cannon arrived in a separate vehicle. "[I]rate" over the shooting, she confronted ²³⁹ individuals in the street. Cannon, attempting to de-escalate the situation, pulled her "around the back of the house[.]" Appellant followed and approached them.

Lifting his jacket to display a gun, he stated that if any shots were fired off that night that he was going to blow the house up. He was going to burn the house down. He was going to kill the kids in my house. Call the police if I ⁷⁹⁰ want.

They're not welcomed on my block. Afraid for their lives, the Cannons went inside the house and "slammed the door." When police officers arrived on the block, it "was extremely hectic" and "chaotic." Outside in the street, there were "[a] lot of people" "yelling, screaming." They were upset with the Cannons, calling them "snitches and stuff like that[.]" Appellant, who was saying "vulgar things ... a lot of negative things[,]" was arrested because he met "the description of the person who was shooting a weapon[.]" According to Detective Marcus Sanders, appellant made "threats of ... violence and arson ... not only to the officers that were on the scene, but initially, as well as to the residents that were actually right across the street." Video from the detective's body camera, which recorded the encounter with appellant, was played for the jury. Police secured appellant's house until a search warrant was executed. In that search, police recovered the leather jacket worn by appellant that evening, which later tested positive for gunshot residue.

In addition, officers recovered a "silver Ruger handgun," a "30 round magazine for a Glock," a "40 caliber" shell casing, and ammunition for different weapons. Based on statements made by appellant during a phone call recorded on December 11, while he was incarcerated, police obtained a warrant to search a house at 1645 Abbotston Street, where the name "Teddy" was written on the living room wall. In the recorded call, appellant, referring to "Chris" as the person who "do got it[,]" agreed that "he had it he walked out wit it[.]" At the Abbotston Street residence, police ²⁴⁰ recovered a "black Glock 27, which is a 40 caliber[,]" "on the top floor outside roof," "inside of a black trash bag" and "wrapped up." Firearms examination established that the shell casing recovered at appellant's residence was from a cartridge fired from the Glock recovered at 1645 Abbotston Street. We shall add material from the record in our discussion of the issues raised by appellant.

DISCUSSION I. Indictment Appellant contends that his firearm conviction must be vacated because it is premised on an indictment that did not allege a criminal offense. This challenge arises from the following portion of the indictment, which states in pertinent part: FIFTH COUNT ... DEFENDANT, Teddy SHANNON, late of said City, heretofore on or about December 10, 2016, at the 1700 block of East 30th Street, in the City of Baltimore, State of Maryland, having been convicted of a crime of violence, as defined in Public Safety Article, Section 5-101(c), to wit: 05/09/2008, Possession with Intent to Distribute, Case No.: 107312013 , did possess a regulated firearm, to wit: Ruger P90DC, .45 Caliber Handgun , in violation of Public Safety Article, Section 5-133(c) of the Annotated Code of Maryland; against the peace, government and dignity of the State. [ PS 5-101 ; PS 5-133(c) ] 1 1609 (Underlining in original; boldface added.) The crime charged in this count of the indictment is a violation of § 5-133(c) of the Public Safety Article ("PS"), which provides in pertinent part: Penalty for possession by convicted felon (c)(1) A person may not possess a regulated firearm if the person was previously convicted of: ⁷⁹¹ (i) a crime of violence ; ²⁴¹ (ii) a violation of § 5-602, § 5-603, § 5-604, § 5-605, § 5-612, § 5-613, § 5-614, § 5-621, or § 5-622 of the Criminal Law Article ; or (iii) an offense under the laws of another state or the United States that would constitute one of the crimes listed in item (i) or (ii) of this paragraph if committed in this State. (Emphasis added.) The problem presented by Count Five is not a matter of dispute.

Although Public Safety § 5-101(c) defines a "crime of violence" as one of eighteen enumerated offenses, none of those predicate offenses is possession of a controlled dangerous substance with intent to distribute, which is the offense appellant was convicted of on May 9, 2008, in Case No. 1073122013. Count Five mistakenly identifies the predicate conviction for this charge under PS § 5-133(c), by mislabeling "Possession with Intent to Distribute" as a "crime of violence." Appellant contends that because the predicate offense identified in Count Five was not a crime of violence as alleged in the indictment, "the trial court was deprived of jurisdiction to render a verdict or impose a sentence" on that count. In support, appellant cites precedent establishing that "where no cognizable crime is charged, the court lacks fundamental subject matter jurisdiction to render a judgment of conviction, i.e., it is powerless in such circumstances to inquire into the facts, to apply the law, and to declare the punishment for an offense." Williams v. State , 302 Md. 787 , 792, 490 A.2d 1277 (1985) (citing Pulley v. State , 287 Md. 406 , 415-16, 412 A.2d 1244 (1980) ; Urciolo v. State , 272 Md. 607 , 616, 325 A.2d 878 (1974) ). See also Md. Rule 4-252(d) ("A motion asserting failure of the charging document to show jurisdiction in the court or to charge an offense may be raised and determined at any time.").

Alternatively, appellant argues that "an additional basis for vacating [his] conviction and sentence for possession of a regulated firearm" is Md. Rule 4-345(a), providing that "[t]he court may correct an illegal sentence at any time." See, e.g., Johnson v. State , 427 Md. 356 , 362, 47 A.3d 1002 (2012) (vacating conviction and sentence on ground that "sentence for ²⁴² assault with intent to murder was illegal because that crime was not contained in the indictment returned by the Grand Jury"). The State, acknowledging the "drafting error" in the indictment, points out that appellant failed to complain about the mistake when it "could have been corrected by a simple amendment to the indictment at any time prior to entry of the verdict." Moreover, the State continues, "this drafting error had absolutely no bearing on [appellant's] due process right to a fair trial or on the court's jurisdiction to impose the conviction and sentence." Nor was appellant "prejudiced by this drafting error" because the defense "stipulated that he had a prior disqualifying conviction, under Section 5-133(c)," and "the jury was made aware of [his] prior criminal activity through recordings of two jail house calls" during which the jury learned that appellant "had a prior assault conviction, which would have qualified as a 'crime of violence' under [PS] § 5-101(c)(2) or (3)." For this reason, the State maintains that appellant "was properly convicted of violating ... Public Safety, § 5-133(c), and the sentence imposed was legal." A. Legal Standards Governing Indictments Under Article 21 of the Maryland Declaration of Rights, "in all criminal prosecutions, every man hath a right to be informed of the accusation against him; to ⁷⁹² have a copy of the Indictment, or charge, in due time (if required) to prepare for his defence[.]" The purpose of this guarantee is "(i) to put the accused on notice of what he is called upon to defend by characterizing and describing the crime and conduct; (ii) to protect the accused from a future prosecution for the same offense; (iii) to enable the defendant to prepare for his trial; (iv) to provide a basis for the court to consider the legal sufficiency of the charging document; and (v) to inform the court of the specific crime charged so that, if required, sentence may be pronounced in accordance with the right of the case.... [I]n order to place an accused on adequate notice, two different types of information ought to be provided by the charging document.... ²⁴³ First, it is essential that [the charging document] characterize the crime, and second, it should furnish the defendant such a description of the particular act alleged to have been committed as to inform him of the specific conduct with which he is charged.... As to the former of these dual requisites, where a statutory offense is alleged, it has generally been held in Maryland that, at least where the terms of the statute include the elements of the criminal conduct, the crime may be sufficiently characterized in the words of the statute." Counts v. State , 444 Md. 52 , 57-58, 118 A.3d 894 (2015) (quoting Ayre v. State , 291 Md. 155 , 163-64, 433 A.2d 1150 (1981) ).

" '[I]t is elementary that a defendant may not be found guilty of a crime of which he was not charged in the indictment.' " Johnson v. State , 427 Md. 356 , 375, 47 A.3d 1002 (2012) (quoting Turner v. State , 242 Md. 408 , 414, 219 A.2d 39 (1966) ). Convicting a defendant of a crime that was not charged " 'would be a sheer denial of due process.' " Stickney v. State , 124 Md. App. 642 , 646, 723 A.2d 542 (1999) (quoting De Jonge v. Oregon , 299 U.S. 353 , 362, 57 S. Ct. 255 , 81 L.Ed. 278 (1937) ); accord Johnson , 427 Md. at 376 , 47 A.3d 1002 (citing Dunn v. United States , 442 U.S. 100 , 107, 99 S. Ct. 2190 , 60 L.Ed.2d 743 (1979) ; Turner v. New York , 386 U.S. 773 , 775, 87 S. Ct. 1417 , 18 L.Ed.2d 522 (1967) ; Landaker v. State , 327 Md. 138 , 140, 607 A.2d 1253 (1992) ). Implementing these protections, the Maryland Rules provide that "[a]n offense shall be tried only on a charging document." Md. Rule 4-201(a). A charging document must "contain a concise and definite statement of the essential facts of the offense with which the defendant is charged." In addition, "[t]he statute or other authority for each count shall be cited at the end of the count, but error in or omission of the citation of authority is not grounds for dismissal of the charging document or for reversal of a conviction." Md. Rule 4-202(a). ²⁴⁴ A court may amend an indictment "at any time before verdict ... except that if the amendment changes the character of the offense charged, the consent of the parties is required." Md. Rule 4-204.

This rule "gives effect to Article 21" rights, by precluding unilateral changes to the substance of charged offenses. See Counts , 444 Md. at 57 , 118 A.3d 894 . Cf . Beckwith v. State , 320 Md. 410 , 414-15, 578 A.2d 220 (1990) (a reasonable defendant would conclude that he was charged under a particular subsection to the exclusion of another subsection when the indictment charged the defendant "in a way which clearly appeared to exclude" one of those charges).

When determining "the character of the offense," courts look at "what is stated in the body of an indictment, not the statutory reference or caption." ⁷⁹³ Thompson v. State , 371 Md. 473 , 489, 810 A.2d 435 (2002) (citing Busch v. State , 289 Md. 669 , 678, 426 A.2d 954 (1981) ). The statutory reference in a charging document " 'exists as a matter of convenience to the parties and the court, and thus possesses no substance of its own.' " Id. (quoting Ayre , 291 Md. at 168 n.9, 433 A.2d 1150 ). As the Court of Appeals has recognized, substituting different criminal acts in an indictment constitutes a "change in the character of the charged offense" even if both acts are prohibited by the same statute.

"When the State delineate[s] the particular section of the statute, ... it charge[s] only the conduct and circumstances proscribed by that section, and, absent appellant's consent, [is] barred from later amending the indictment to charge different circumstances." Tapscott v. State , 106 Md. App. 109 , 135, 664 A.2d 42 (1995). "[W]here a specific criminal act has been charged, another may not be substituted for it on the theory that it is simply a matter of 'form.' " Thanos v. State , 282 Md. 709 , 716, 387 A.2d 286 (1978) (amendment substituting allegation that defendant "remove[d]" a price tag, for allegation that defendant "alter[ed]" a price tag, erroneously changed the character of the offense, even though defendant was charged with violating the same section of the code). Cf. ²⁴⁵ Johnson v. State , 358 Md. 384 , 392, 749 A.2d 769 (2000) ("An amendment, changing the identity of the controlled dangerous substance, changes an element of the offense charged, and charges the defendant with a different offense. Such an amendment, without the defendant's consent, is not permitted."); Clark v. State , 218 Md. App. 230 , 255, 96 A.3d 901 (2014) (offenses of wearing, carrying, or transporting a handgun differed depending on allegation that it occurred "on or about the person" or "in a vehicle traveling on a roadway").

B. Appellant's Challenge Appellant contends that Count Five is fatally flawed because it charges the wrong predicate offense for his conviction for possessing a firearm after a disqualifying conviction. To be sure, the offenses codified in PS § 5-133(c)(i) and PS § 5-133(c)(ii) "contain distinct elements that are not included in the other," because the two subsections require proof of different predicate offenses as the disqualifying prior conviction. Both subsections are implicated because the indictment mislabels "Possession with Intent to Distribute" as a "crime of violence," while correctly identifying that offense both by name and provenance (i.e., a judgment on "05/09/2008" in "Case No.: 107312013"). Although the caption in Count Five does not specify by number which subsection of § 5-133(c) is charged, the body of the indictment misidentifies the predicate conviction of "Possession with Intent to Distribute" as a "crime of violence." Consequently, we must treat the original indictment as charging a violation of PS § 5-133(c)(i).

See Thompson , 371 Md. at 489 , 810 A.2d 435 . In turn, because appellant's indictment charged a violation of subsection 5-133(c)(i), an amendment with appellant's consent was necessary to change the character of that predicate offense to a violation of subsection 5-133(c)(ii). Cf. Counts , 444 Md. at 65 -66 , 118 A.3d 894 (court erred in unilaterally substituting felony theft for misdemeanor theft); Busch , 289 Md. at 679 , 426 A.2d 954 (court erred in substituting charge of resisting arrest for charge of resisting, obstructing, or hindering an officer in performance of his duties).

We conclude that ²⁴⁶ appellant agreed to change the character of the predicate offense when he stipulated that he had been "convicted of a crime for which he is prohibited from possessing ⁷⁹⁴ a regulated firearm under the Public Safety Article 5-133(c)." Thereafter, the trial court instructed the jury that "[t]he State and Defendant agree and stipulate that the Defendant was previously convicted of a crime that disqualifies him from possessing a regulated firearm." In closing, the prosecutor reminded the jury that "[w]hether or not he is a prohibited person is no longer in question" because "[t]here is a stipulation that he is not allowed to possess [a regulated firearm]." By admitting that his prior conviction made it illegal for him to possess a firearm under PS § 5-133(c), appellant agreed that Count Five of the indictment properly charged a violation of § 5-133(c), based on an admitted predicate conviction. In doing so, appellant necessarily agreed to change the character of the charged offense. For that reason, appellant is not entitled to reversal of his firearm conviction based on the initial prosecutorial drafting error corrected by his stipulation.

II

Restitution Appellant next challenges the order requiring him to pay $ 2,400 in restitution to Ms. Coleman-Cannon, to reimburse her for the deposit and first month's rent she paid on the residential lease for 1738 East 30th Street, before her family fled without spending a single night in the house. In appellant's view, "even if there is some causal link between the threat of arson and the breaking of the lease," her loss merely had a "reasonable connection," but was not the "direct result" of those crimes that is required under CP § 11-603(a), because Ms. Coleman-Cannon's "decision to break the lease" was the intervening cause for her loss. We disagree. While this appeal was pending, the Court of Appeals held that out-of-pocket expenses incurred when residences became insecure as a result of a robbery satisfied the "direct result" standard for restitution under CP § 11-603(a), in In re G.R ., 463 Md. 207 , 214, 205 A.3d 917 (2019).

Applying ²⁴⁷ lessons from that decision, we hold that the sentencing court did not err or abuse its discretion in ordering restitution for the forfeited security deposit and rent, because that loss was a direct result of appellant's armed threats of arson against that residence and its occupants. A. Legal Standards Governing Restitution An illegal restitution order may be challenged at any time, as an illegal sentence. See Goff v. State , 387 Md. 327 , 340, 875 A.2d 132 (2005). "We review a trial court's restitution order ordinarily for abuse of discretion." Ingram v. State , 461 Md. 650 , 659, 197 A.3d 14 (2018).

See In re G.R., 463 Md. at 214 , 205 A.3d 917 . If "determining the propriety of a restitution order" involves a matter of "statutory interpretation, however, the review is conducted without deference to the trial court's action." Ingram , 461 Md. at 659 , 197 A.3d 14 . An order to pay restitution "as part of a sentence" under CP § 11-603(a) is "a criminal sanction, not a civil remedy." State v. Stachowski , 440 Md. 504 , 512, 103 A.3d 618 (2014) (citation omitted). Although restitution may have "a therapeutic and rehabilitative function with respect to the defendant, its predominant and traditional purpose is to reimburse the victim for certain kinds of expenses that he or she incurred as a direct result of the defendant's criminal activity." Chaney v. State , 397 Md. 460 , 470, 918 A.2d 506 (2007).

"It is not a judicially imposed gift to the victim, but reimbursement that the defendant, personally, must pay." Id. ⁷⁹⁵ This public policy is implemented in Subtitle 6, of Title 11 of the Criminal Procedure Article. Pertinent to this appeal, CP § 11-603 provides: Grounds for restitution (a) A court may enter a judgment of restitution that orders a defendant ... to make restitution in addition to any other penalty for the commission of a crime ..., if ... (2) as a direct result of the crime ..., the victim suffered ... (ii) direct out-of-pocket loss .... ²⁴⁸ Victim presumed to have right to restitution (b) A victim is presumed to have a right to restitution under subsection (a) of this section if: (1) the victim or the State requests restitution; and (2) the court is presented with competent evidence of any item listed in subsection (a) of this section.

"Determining whether an injury is a " 'direct result' of the criminal conduct is central traditionally to mapping the outer limits of a trial court's discretion in ordering restitution in most cases." Stachowski , 440 Md. at 513 , 103 A.3d 618 . As the Court of Appeals has explained, "[o]ur cases are clear that restitution may be compelled only where the injury results from the actions that made the defendant's conduct criminal." Id. at 513 , 103 A.3d 618 . The Court of Appeals has rejected "proximate causation, mere nexus, or single charging document" theories for restitution, instead requiring "a direct result between the qualifying crime committed and the damages inflicted before restitution may be ordered." Pete v. State , 384 Md. 47 , 60-61, 862 A.2d 419 (2004). In Pete , the Court vacated a restitution order covering collision damages that the defendant caused to a police vehicle while he was fleeing apprehension following an assault he committed two hours earlier.

See id. at 51, 57 , 862 A.2d 419 . The Court held that "restitution to the [Local Government Insurance Trust] as part of a sentence for the second degree assault conviction was inappropriate under § 11-603 because the damage to Patrolman Cheesman's cruiser did not arise as a 'direct result' of the second degree assault on Ms. Raickle." Id. at 57 , 862 A.2d 419 . The Court rejected the victims' direct result argument, reasoning that the collision with, and resultant damage, to Patrolman Cheesman's cruiser are a direct result of Pete's reckless driving, not his assault on Ms. Raickle. The damage to the cruiser is a direct result of Pete stopping abruptly, from a relatively high rate of speed, in the path of the cruiser.

Reckless driving, by definition, is driving with a "wanton or willful disregard for the safety of persons or