Snyder v. State

RAKER, J. Mark Snyder, appellant, was convicted in the Circuit Court for Harford County in two separate trials arising from two separate incidents occurring on April 26, 2009. In Case No. 872, appellant was convicted of two counts of first-degree assault, fourth-degree burglary, malicious destruction of property, four counts of reckless endangerment, and illegal possession of a firearm. In Case No. 871, appellant was convicted of two counts of first-degree assault, malicious destruction of property, and illegal possession of a firearm. Appellant presents three questions for our review: 1.

Was the evidence sufficient to find appellant guilty of first and second-degree assault against Randy and Mary Ray in Case No. 872? 2. Did the trial court err in admitting other crimes evidence in Case No. 871? ³⁷⁶ 3. Was appellant properly convicted of illegal possession of a firearm in Case No. 871? We shall hold that the trial court did not err or abuse its discretion.

Accordingly, we shall affirm. I. This appeal arises out of two separate indictments returned by the Grand Jury for Harford County. In case number 872, appellant was indicted for thirty-seven counts, including murder, first and second-degree assault, burglary and handgun violations arising from shootings which took place on the properties of appellant’s former neighbors. 1 For ease of following the case, we shall refer to Case No. 872 as the “Neighbor Case.” In Case No. 871, appellant was charged with violations similar to those in the Neighbor Case and which arose from a shooting that occurred on the property of appellant’s former employers, Richard and Janette Crouse. 2 We shall refer to Case No. 871 as the “Crouse Case.” The Neighbor event and the Crouse event occurred on the same evening. The cases proceeded in separate jury trials in the Circuit Court for Harford County. ³⁷⁷ We turn first to the Neighbor Case.

In the Neighbor Case, appellant challenges on appeal only his conviction of first and second-degree assault of Randy and Mary Ray. Accordingly, we set out the facts relevant to the assault incident only. The State’s evidence showed that appellant went to the Ray’s neighborhood and that at approximately 2:30 a.m., a neighbor, Ronald Testerman, saw appellant’s pick up truck parked adjacent to the Ray’s house and that he heard gunshots coming from the direction of the Ray’s home. Mr. Testerman observed appellant exiting the Ray’s house holding firearms.

He observed appellant fire three gunshots at the Ray’s house and then leave. Randy Ray testified that he had been away from home at the time of the incident, but, when he arrived home, he found that his windows were shot out, the front door was off, and police were in his driveway. Mr. Ray testified that while he and his wife were away, he left lights on in the living room and bedroom. The Rays also left their dogs at home.

Appellant proceeded to a trial before a jury in the Circuit Court for Harford County. The jury convicted him of first and second-degree assault of Randy Ray; first-degree and second-degree assault of Mary Ray; fourth-degree burglary; malicious destruction of property; four counts of reckless endangerment (one count each against Ronald Testerman, Sherry Testerman, Gary Babb, and Lisa Babb), illegal possession of a firearm; and wearing, carrying or transporting a handgun. Appellant was found not guilty on all other charges. The event at the Crouse home occurred on the same evening as the Neighbor event.

Janette Crouse testified that at 3:00 a.m. on April 26, 2009 she observed appellant’s truck outside her home and heard a half dozen gunshots. A window over her doorway was damaged. Her husband, Richard Crouse, testified that he recognized appellant’s voice yelling at him. Mr. Crouse then called police.

Detective Golden executed a search warrant at appellant’s home, where he found a shotgun, a 9mm handgun, and, in a safe, ammunition for both guns. Appellant objected to any ³⁷⁸ testimony referring to any handguns or ammunition found in his home. The jury in the Crouse Case found appellant guilty of first and second-degree assault of John and Janette Crouse; malicious destruction of property; illegal possession of a firearm; and wearing, carrying or transportation of a handgun. Appellant was found not guilty on all other charges.

Appellant proceeded to sentencing on both cases on October 18, 2010. 3 This timely appeal followed.

II

We address first appellant’s argument in the Neighbor Case. Before this Court, appellant presents one argument: that the evidence was insufficient to support his conviction for first and second-degree assault of Randy and Mary Ray. He argues that “it is physically impossible for [him] to have committed the crime of first or second-degree assault as [he] did not have the apparent present ability to inflict serious physical injury or inflict offensive or harmful physical contact on the alleged victims who were not in the State at the time that the incident occurred.” In other words, appellant argues that, because the Rays were not home at the time he shot into their home, he did not have the apparent present ability to inflict serious physical injury upon them. ³⁷⁹ The State argues that the evidence presented at trial was sufficient for a jury to find appellant guilty of first-degree assault. The State contends that to convict appellant of the attempted battery variety of assault, it need show only that (1) appellant tried to cause immediate physical harm to Randy and Mary Ray; (2) appellant intended to cause physical harm to Randy and Mary Ray; (3) appellant’s actions were not consented to by Randy and Mary Ray; and (4) appellant used a firearm to commit the assault or that appellant intended to cause serious physical injury in the commission of the assault.

Moreover, the State contends that it is not required to prove that it was actually possible for appellant to consummate his attempted battery in order to sustain the conviction for attempted battery variety of assault.

III

First, we address appellant’s claim that there is insufficient evidence to convict him of first and second-degree assaults of Randy and Mary Ray. When reviewing a conviction for sufficiency of the evidence, this Court must be satisfied that, “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.” Jackson v. Virginia, 443 U.S. 307, 319 , 99 S.Ct. 2781, 2789 , 61 L.Ed.2d 560 (1979); State v. Mayers, 417 Md. 449, 466 , 10 A.3d 782, 790 (2010). We give due deference to the factfinder’s determination of fact and rational inferences made in reaching its decision. See State v. Smith, 374 Md. 527, 557 , 823 A.2d 664, 682 (2003).

In Maryland, first and second-degree assault are statutory crimes. See Maryland Code (2002, Repl.Vol.2012) §§ 3-202, 3-203 of the Criminal Law Article. 4 To convict appellant of first-degree assault, the State must prove all the elements of assault in the second-degree, and, to elevate the offense to first-degree, at least one of the statutory aggravating factors. ³⁸⁰ Statutory second-degree assault encompasses three types of common law assault and battery: (1) the “intent to frighten” assault, (2) attempted battery and (3) battery. To prove the attempted battery variety of second-degree assault, the State must prove that (1) appellant actually tried to cause physical harm to Randy and Mary Ray; (2) that he intended to bring about physical harm to the Rays, and (3) that his actions were not consented to by the Rays. To prove first-degree assault, in addition to proving the elements of second-degree assault, the State must prove also that appellant either used a firearm to commit an assault, or that he intended to cause serious physical injury in the commission of the assault. § 3-203.

The evidence presented at trial showed appellant fired gun shots into the Ray’s home at approximately 2:00 a.m., while the lights were on in the house. When the Rays returned home, they found that the windows had been shot out and broken and that the front door was off its hinges. There were new bullet holes in the kitchen cabinets, sheet rock, range hood, refrigerator, a recliner chair in the living room and the race car parked in the garage. Appellant argues that because the Rays were not at home, he could not be convicted of assault.

Appellant reasons that “it is physically impossible for [him] to have committed the crime of first or second degree assault as [he] did not have the apparent present ability to inflict serious physical injury or inflict offensive or harmful physical contact on the alleged victims who were not in the State at the time that the incident occurred.” Appellant is incorrect in his analysis. In order to understand why appellant is incorrect, it is important to understand more fully the crimes of assault, attempt and battery, and the history of the statutory crime of assault in Maryland. For a full and more thorough scholarly explanation of the crimes of assault and attempt, as well as the relationship between the tort concept of assault and the criminal assault, see Lamb v. State, 93 Md.App. 422 , 613 A.2d 402 (1992) by Judge Charles E. Moylan, Jr., for the Court of Special Appeals, keeping in mind Judge Moylan’s observation that “[c]ommon law assault, ³⁸¹ then, is a chameleon concept that no one should attempt to describe too precisely.” Id. at 441 , 613 A.2d 402, 411 . Until 1996, when the General Assembly codified the crimes of assault and battery, in Maryland, assault and battery were common law crimes.

See Md.Code Ann., (1957, 1996 Repl. Vol., 2000 Cum.Supp.) Art. 27, § 12-12A-7. In 1996, the Legislature enacted the statutory assault scheme, abrogating the common law offenses of assault and battery, but specifically providing that the crimes retain their judicially determined meanings. See Robinson v. State, 353 Md. 683 , 728 A.2d 698 (1999).

The statute defined assault, in Art. 27, § 12, to mean “the offenses of assault, battery, and assault and battery, which terms retain their judicially determined meanings.” In 2002, as part of the code revision project, the assault statute became part of the Criminal Law Article, again without any substantive changes. See § 3 — 201(b); 5 see also Britton v. State, 201 Md.App. 589 , 30 A.3d 236 (2011). Today, § 3-203 states that “[a] person may not commit an assault.” Even after these revisions, assault means, “the crimes of assault, battery, and assault and battery, which retain their judicially determined meanings.” Section 3-201(b). Thus, although the General Assembly has revised the Maryland Code relatively recently, the substantive law of “simple” criminal assault remains, more or less, the same as it was before the 1996 revisions.

See Cruz v. State, 407 Md. 202 , 209 n. 3, 963 A.2d 1184, 1188 (2009) (citing earlier Maryland common law of assault). As Judge Moylan explained in Lamb , well before the statutory crime of assault in Maryland, “the term of art ‘assault’ may connote any of three distinct ideas: (1) A consummated battery or the combination of a consummated bat ³⁸² tery and its antecedent assault; (2) an attempted battery; and (3) a placing of a victim in reasonable apprehension of an imminent battery.” Lamb, 93 Md.App. at 428 , 613 A.2d at 404 ; see also Harrod v. State, 65 Md.App. 128, 131 , 499 A.2d 959, 961 (1985) (pointing out that the common law crimes of intent to frighten and attempted battery are two distinct crimes). The statutory offense of second-degree assault encompasses three modalities: (1) intent to frighten, (2) attempted battery, and (3) battery. The intent to frighten variety requires that the defendant commit an act with the intent to place another in fear of immediate physical harm, and the defendant had the apparent ability, at that time, to bring about the physical harm.

The victim must be aware of the impending battery, see id. at 133 , 499 A.2d at 961 , and there must be an apparent present ability to commit the battery. See Dixon v. State, 302 Md. 447, 456-64 , 488 A.2d 962, 966-70 (1985). The attempted battery variety of assault requires that the accused had a specific intent to cause physical injury to the victim, and to take a substantial step towards that injury. See Harrod, 65 Md.App. at 135 , 499 A.2d at 962 .

But, there is no need for the victim to be aware of the impending battery. See Young v. State, 303 Md. 298, 306 , 493 A.2d 352, 356 (1985); Hickman v. State, 193 Md.App. 238, 251 , 996 A.2d 974, 981 (2010); Harrod, 65 Md.App. at 131-35 , 499 A.2d at 960-62 . Professor Wharton also finds that the attempted battery variety of assault may be committed “even though the victim is entirely unaware of the impending battery.” C. TORCIA, Wharton’s Criminal Law § 179 (15th ed.1993). Notably, the attempted battery variety of second-degree assault does not require that the defendant have the apparent ability at the time of the act to bring about the intended result.

Lamb, 93 Md.App. at 449 , 613 A.2d at 415 (1992). Professor Perkins, in his treatise, R. PERKINS & R. BOYCE, Criminal Law 164 (3rd ed.1982), has an extensive discussion on the common law crime of assault and the different concepts of assault and attempts. In early common law, ³⁸³ and indeed, in Maryland statutory law, “the offense which the great majority of courts are calling and punishing as a criminal assault is in effect an attempted battery.” Id. at 159. The key to understanding the issue presented in the instant case is Professor Perkins’s comment that “[t]he original concept of criminal assault developed at an earlier day than the doctrine of attempt in general, and crystallized on a much narrower basis in the sense of a greater degree of proximity.” Id. at 164.

Significantly, an act constituting an attempt may be more remote in time than the timing for an assault. At common law, an assault must, of course, precede the battery, but it does so immediately. Id. Professor Perkins points out that “in the early days there was no assault until the assailant came within apparent reach of his intended victim.” Id. at 164-65.

The language, present in many cases discussing assault, crept into the law “to emphasize the requirement of proximity rather than any notion of actual present ability.” Id. at 165. Notably, Perkins observes that the one English case that did not involve assault that took the position that there could be no attempt to commit a crime if perpetration was impossible under the circumstances was later repudiated in England and has not been followed in the United States. Id. at 166. Hence, actual present ability is not required.

Id. The bottom line is that “an effort to commit a battery that goes beyond preparation but lacks the element of ‘present ability’ is punishable as an attempt to assault,” id. at 171, or under the Maryland statute, the attempted battery variety of assault. Maryland has embraced the analysis expressed by Professor Perkins on the law of assault and attempt. See Dixon, 302 Md. at 457 , 488 A.2d at 966 ; Lamb, 93 Md.App. at 446-47 , 613 A.2d at 413-14 ; Harrod, 65 Md.App. at 133-34 , 499 A.2d at 961 .

Defining common law assault in Dixon , Judge Menchine, quoting R. PERKINS, Criminal Law (2nd ed.1969) stated as follows: “An assault is (1) an attempt to commit a battery or (2) an intentional placing of another in apprehension of receiving as immediate battery.” ³⁸⁴ Dixon, 302 Md. at 457 , 488 A.2d at 966 . Quoting Judge Orth, in Lyles v. State, 10 Md.App. 265 , 269 A.2d 178 (1970), and adopting the definition set forth there, Judge Menchine went on as follows: “We said in Williams v. State, 4 Md.App. 643 [, 647, 244 A.2d 619, 622 (1968),] that any attempt to apply the least force to the person of another constitutes an assault. The attempt is made whenever there is any action or conduct reasonably tending to create the apprehension in another that the person engaged therein is about to apply such force to him. It is sufficient that there is an apparent intention to inflict a battery and an apparent ability to carry out such intention.” Dixon, 302 Md. at 458-459 , 488 A.2d at 967 .

As pointed out by the California Supreme Court in People v. Williams, 26 Cal.4th 779 , 111 Cal.Rptr.2d 114 , 29 P.3d 197 (2001), “[u]nlike criminal attempt where the ‘act constituting an attempt to commit a felony may be more remote,’ ‘[a]n assault is an act done toward the commission of a battery’ and must ‘immediately’ precede the battery.” Id., Ill Cal.Rptr.2d 114, 29 P.3d at 201 (quoting R. PERKINS & R. BOYCE, Criminal Law 164 (3rd ed.1982)). The courts have required that for an assault, the perpetrator must have gone farther in the perpetration of the criminal act than for the crime of attempt, and that the “present ability” requirement of assault means that the perpetrator must have gone beyond the minimal steps involved in an attempt. See Harrod, 65 Md.App. at 134 , 499 A.2d at 961 (1985). In the case at bar, appellant could have been found guilty of attempted battery if he had been apprehended in the front yard while he was merely loading the gun, preparing to shoot, while he could not have been found guilty of the assault with intent to frighten variety of assault or the now abrogated common law assault with intent to murder.

For the attempted battery version of assault, apparent present ability exists even when the defendant mistakenly ³⁸⁵ believes he could consummate immediately a battery. 6 See Lamb v. State, 93 Md.App. at 443 , 613 A.2d at 412 . Other states follow this approach as well. For instance, in Hollingsworth v. State, 366 So.2d 326 (Ala.Cr.App.1978), the Court of Criminal Appeals of Alabama reversed a conviction for assault. The defendant shot into a house with all the lights out in the middle of the night.

The Alabama Court reversed the assault conviction because the defendant lacked the present apparent ability to commit the assault. The Court stated that the State produced no evidence that defendant knew that the house was occupied at the time of the shooting, nor that anyone inside the house was aware that the shooting occurred. Id. at 331-332 . In other words, the defendant did not perceive that he had the present apparent ability to commit an attempted battery variety of assault, nor did the alleged victims perceive that the defendant had the present apparent ability to commit an intent to frighten variety of assault.

Therefore, the court reversed appellant’s conviction for assault. In sum, the elements for an attempted battery variety of assault in the second-degree are that the defendant actually tried to cause physical harm to the victim, the defendant intended to bring about physical harm to the victim, and the victim did not consent to the conduct. In order to prove the first element, that the defendant actually tried to cause physical harm to the victim, the State must prove that the defendant believed he had the apparent presentability to consummate a battery. 7 To raise the offense from second- ³⁸⁶ degree assault to first-degree assault, the State must prove, beyond a reasonable doubt, that the defendant committed a second-degree assault and then prove the additional requirement that the defendant committed the assault with a firearm or with the intent to cause serious physical injury. Section 3-202.

We hold that the evidence was legally sufficient to support the judgment of conviction beyond a reasonable doubt for the offense of assault. Here, the State charged appellant with assault. The State presented evidence to prove the attempted battery variety of assault. A jury could find that appellant tried to cause Randy and Mary Ray immediate harm and intended to cause physical harm.

The evidence presented at trial was sufficient to support the conviction of assault. A jury could have found that appellant took a substantial step towards the commission of a battery, by finding that appellant actually tried to cause the Rays physical harm. Several neighbors testified that they heard gunshots from the direction of the Rays’ property. Upon arriving home, the Rays found bullet holes throughout the exterior of their home as well as bullets in furniture.

The recovered shotgun shells from the Rays’ home match a firearm found in appellant’s truck. A jury could have concluded that appellant intended to bring about physical harm to the Rays. When appellant arrived at the Ray’s house, all the lights were on, an automobile was in the Rays’ driveway and the dogs were at home. A jury could have reasonably inferred that appellant believed that the Rays were home at the time of the attack, and that from his point of view, appellant believed he had the apparent present ability to consummate a battery against both Randy and Mary Ray.

The jury could have inferred also from appellant’s act of shooting multiple rounds into the Rays’ home that appellant intended to cause the Rays immediate physical harm. See ³⁸⁷ Chilcoat v. State, 155 Md.App. 394, 403 , 843 A.2d 240, 246 (2004) (noting that a jury may infer as defendant’s intent the natural and probable results of his actions). Thus, although appellant failed to cause any injury to either Randy or Mary Ray because they were not at home at the time he fired the shots into their home, there was sufficient evidence presented to the jury at trial to convict appellant of first-degree assault.

IV

Next we turn to the appellant’s claim that in the Crouse Case, the trial court allowed inadmissible other crimes evidence. Appellant claims that the evidence of the firearms and ammunition found in his home constitutes inadmissible other crimes evidence. 8 Before this Court, appellant argues that the trial court failed to conduct the third step of “other crimes” evidence analysis by failing to weigh the probative value of the “other crimes” evidence against its undue prejudicial effect. The State argues that we should not reverse for three reasons. First, that appellant failed to preserve the issue of the admissibility of testimony regarding the guns and ammunition as other crimes evidence because appellant’s counsel “mentioned other crimes evidence only once, and then his argument was different than his argument on appeal.” Second, testimony regarding the guns and ammunition found in appellant’s home do not constitute inadmissible other crimes evidence.

Third, that the testimony regarding the guns and ammunition, even if constituting inadmissible other crimes evidence, was harmless error. There are several statements to which appellant objected at trial that appellant argues are inadmissible other crimes evidence. Appellant’s first objection, to Detective Golden’s testimony about guns and ammunition found in appellant’s home is as follows: ³⁸⁸ “DETECTIVE GOLDEN: I took photographs, and I helped search the residence for anything of evidentiary value we would be looking for. [THE STATE:] Did you find anything of evidentiary value? DETECTIVE GOLDEN: We did. [THE STATE:] What did you locate?

DETECTIVE GOLDEN: There were several different types of ammunition, a few different types of guns. DEFENSE COUNSEL: Objection. May we approach. THE COURT: Certainly. [DEFENSE COUNSEL:] I would object to the testimony concerning other guns and the amount at the house.

As I indicated in our Motion in Limine, the fact that there were other guns that were in the house isn’t relevant to this case. There is no probative value to it. There are three guns that were found in my client’s truck. The State has indicated those are the guns that were fired.

At least one of them was. There’s no probative value, and I think even if there was some probative value, I think that the testimony that there were other guns would be more prejudicial to my client, to his case. I don’t think there’s any of the exceptions, the ‘other crimes’ exception allowed here. For that reason, I’d make a motion and ask the Court to deny testimony about that, ask the answer be stricken.

THE COURT: Response, Mr. Lewis. [THE STATE:] It’s a generic categorization of what was found in the house. The ammo, as I understand it, is relevant and