Titus v. State

GREENE, J. On May 1, 2009, Petitioner, Gerald Thomas Titus, Jr., was convicted by a jury in the Circuit Court for Carroll County of obstructing and hindering, driving under the influence of alcohol per se, driving while impaired by alcohol, and giving a false or fictitious name to a uniformed police officer. 1 On appeal to the Court of Special Appeals, Petitioner challenged the sufficiency of the evidence to sustain his conviction for obstructing and hindering, as well as the legality of the sentence he received for his conviction of driving under the influence of alcohol per se. In an unreported opinion, the Court of Special Appeals affirmed Petitioner’s conviction and sentence. We granted certiorari to answer the following question: Was the evidence that Petitioner gave a false name to a police officer during a traffic stop sufficient to convict him of obstructing or hindering a police officer in the performance of his duty? We answer this question in the negative.

In cases involving the common law offense of obstructing and hindering a police officer in the performance of his duty, Maryland courts have adopted a four-part test requiring proof beyond a reasonable doubt of the following elements: (1) a police officer engaged in the performance of a duty; (2) an act, or perhaps an omission, by the accused which obstructs or hinders the officer in the performance of that duty; (3) knowledge by the accused of facts comprising element (1); and (4) intent to obstruct or hinder the officer by the act or omission constituting element ⁵⁵³ (2). Cover v. State, 297 Md. 398, 413 , 466 A.2d 1276, 1284 (1983). For the reasons discussed below, we shall hold that the evidence presented by the State at trial with regard to the charge of obstructing and hindering was insufficient to prove the necessary elements beyond a reasonable doubt. Petitioner’s conviction for this offense is, therefore, reversed.

FACTUAL AND PROCEDURAL BACKGROUND On July 9, 2008, Corporal Mario Devivio (Devivio), of the Carroll County Sheriffs Department, was on routine patrol at approximately 10:45 p.m. when he observed the operators of two motorcycles traveling parallel with each other in the southbound lane on Littlestown Pike. Devivio was traveling behind the motorcycles and observed one of them cross the double yellow line by five feet numerous times. Devivio then proceeded to perform a traffic stop of the operator of that motorcycle. After Devivio initiated the traffic stop, he ran the vehicle information and found that it was registered to Gerald Thomas Titus, Jr. Devivio approached the driver of the motorcycle, who he identified at trial as Petitioner.

When Devivio informed Petitioner of the purpose of the stop and requested his license and registration, Petitioner handed Devivio a Florida driver’s license with Petitioner’s picture and the name Frederick John Karr, Jr. 2 Although the record is not entirely clear on this issue, at some point during the evening of the traffic stop, Devivio discovered that Gerald Titus’s license was suspended and revoked in the state of Maryland, according to MVA records. Upon being questioned by Devivio, Petitioner indicated that “Gerald Titus was his roommate, and he was borrowing the motorcycle.” Not long after the traffic stop was initiated, Devivio “detected a strong odor of an alcoholic beverage emitting from [Petitioner’s] breath, or person” and observed that Petitioner had “bloodshot, glassy eyes.” Devi ⁵⁵⁴ vio questioned Petitioner about his activities that evening, and Petitioner indicated that he was coming from an Inn and that he had consumed two beers. At Devivio’s request, Petitioner agreed to perform Standardized Field Sobriety Testing. Devivio testified that he asked Petitioner whether he had any past injuries or other problems that would prevent or hinder him from performing the tests, and Petitioner indicated that he did not.

On cross-examination, however, Devivio admitted that Petitioner had mentioned having “bad ankles.” Devivio testified that he first administered the horizontal gaze nystagmus test by explaining it to Petitioner and then having him perform the test. At the conclusion of the first test, Devivio testified that Petitioner “indicated six out of six clues,” which was an indicator that Petitioner was “under the influence of an alcohol, drug, or prescription drug.” The next test administered by Devivio was the walk and turn test. Before the test had begun and while Devivio was explaining how to perform it, Petitioner “stepped off fine, [and] raised his arms for balance.” During the test, Petitioner raised his arms for balance, missed one of the initial steps, took too many steps on his approach back, and failed to count his steps out loud. Finally, Devivio administered the one-leg stand test.

Petitioner attempted to begin the test before being instructed to do so, and while performing the test Petitioner initially failed to raise his foot high enough and put his foot down several times during the test. As a result of Petitioner’s performance on the tests, Devivio placed Petitioner under arrest. Devivio transported Petitioner to the Carroll County Sheriffs Office Detention Center and read to him an advisement of rights form, explaining to Petitioner his “rights prior to tak[ing] ... a breath test.” Petitioner agreed to take a breath test and signed the name “Frederick Karr” on the form. Corporal Jesse Clagett (Clagett), an intoximeter operator employed by the Westminster City Police, testified that he was working on the night of Petitioner’s arrest.

While being questioned on direct examination regarding the function of an intoximeter, Clagett agreed that it was used to determine ⁵⁵⁵ “how much alcohol a person has in his system[.]” Clagett identified Petitioner at trial as the person to whom he administered a breath test on the evening of July 9, 2008. Pursuant to department procedures, Clagett checked Petitioner’s mouth to “make sure there [were] no contaminants,” and he located a dime that had been concealed in Petitioner’s mouth. Clagett then instructed Petitioner to spit out the coin, and Clagett began the twenty-minute observation period over again before administering the test. Clagett explained the test to Petitioner before obtaining two samples from him, the results of which were .09 grams of alcohol per 210 liters of breath, which is above “the legal limit for DUI” in Maryland.

The name at the top of the notification of the test results, which was admitted into evidence at trial, is “John Karr Frederick, Jr.,” and Clagett testified that he witnessed Petitioner sign the bottom of the notification form. On August 26, 2008, an unrelated search warrant was executed at Petitioner’s residence, and Devivio was present as an “assisting officer.” Devivio testified that during the execution of the search warrant, he saw Petitioner, who Devivio identified at trial as the same person he arrested at the traffic stop. Devivio claimed that at some point after the night of the traffic stop, “another officer came to [him] and said that ‘The person you arrested [ha]s an alias.’ And he had prior knowledge of [Petitioner], [he] gave me his real name.” Later in his testimony on cross-examination, Devivio indicated that Lieutenant John Shippee (Shippee), with the Carroll County Sheriffs Office, told Devivio that Petitioner had given him a false name. At trial, Shippee identified Petitioner as the subject of the search warrant that had been executed.

Shippee testified that during his interaction with Petitioner while the search warrant was being executed, he asked Petitioner “if he was going by the name of Titus today, or Mr. Karr,” and Petitioner “responded with profanity, and that was it.” Devivio testified that in response to the information from Shippee regarding Petitioner’s use of a false name, he “went to the MVA, typed up his real name, [and] came up with a color photo[.]” After verifying the address associated with Petitioner’s name and ⁵⁵⁶ that Petitioner was the registered owner of the motorcycle he had stopped on the evening of July 9, 2008, Devivio “made a determination that it was an alias that [Petitioner] was using, [a] false name.” Devivio indicated on cross-examination, however, that he “didn’t go back and recharge [Petitioner].” Petitioner was convicted by a jury of obstructing and hindering, 3 driving under the influence of alcohol per se, driving while impaired by alcohol, and giving a false or fictitious name to a uniformed police officer. On appeal, the intermediate ⁵⁵⁷ appellate court affirmed Petitioner’s conviction for obstructing and hindering and the sentence that Petitioner received for his conviction of driving under the influence of alcohol per se. This Court subsequently granted Petitioner’s writ of certiorari. Titus v. State, 418 Md. 587 , 16 A.3d 977 (2011).

DISCUSSION A. Standard of Review This Court reviews an issue regarding the sufficiency of the evidence in a criminal trial by determining “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 , 99 S.Ct. 2781, 2789 , 61 L.Ed.2d 560, 573 (1979) (citation omitted); see Allen v. State, 402 Md. 59, 71 , 935 A.2d 421, 428 (2007); Rivers v. State, 393 Md. 569, 580 , 903 A.2d 908, 915 (2006); Moye v. State, 369 Md. 2, 12 , 796 A.2d 821, 827 (2002). The purpose is not to “undertake a review of the record that would amount to, in essence, a retrial of the case.” State v. Albrecht, 336 Md. 475, 478 , 649 A.2d 336, 337 (1994). Rather, because the finder of fact has “ ‘the unique opportunity to view the evidence and to observe first-hand the demeanor and to assess the credibility of witnesses during their live testimony, we do not re-weigh the credibility of witnesses or attempt to resolve any conflicts in the evidence.’ ” State v. Mayers, 417 Md. 449, 466 , 10 A.3d 782, 791 (2010) (quoting Smith v. State, 415 Md. 174, 185 , 999 A.2d 986, 992 (2010)); see Albrecht, 336 Md. at 478 , 649 A.2d at 337 (holding that evidence is reviewed “in the light most favorable to the State, giving due regard to the trial court’s finding of facts, its resolution of conflicting evidence, and, significantly, its opportunity to observe and assess the credibility of witnesses”) (internal citations omitted). We recognize that “the finder of fact has the ability to choose among differing inferences that might possibly be made from a factual situation,” Smith, 415 Md. at 183 , 999 A.2d at 991 (internal quotation omitted), and we therefore “defer to any ⁵⁵⁸ possible reasonable inferences the [trier of fact] could have drawn from the admitted evidence and need not decide whether the [trier of fact] could have drawn other inferences from the evidence, refused to draw inferences, or whether we would have drawn different inferences from the evidence.” Mayers, 417 Md. at 466 , 10 A.3d at 791 -92 (citing State v. Smith, 374 Md. 527, 557 , 823 A.2d 664, 682 (2003)); see Bible v. State, 411 Md. 138, 156 , 982 A.2d 348, 358 (2009); State v. Suddith, 379 Md. 425, 430 , 842 A.2d 716, 719 (2004).

B. Common Law Offense of Obstructing and Hindering In Maryland, obstructing and hindering a law enforcement officer in the performance of his duty is a common law offense. See Cover v. State, 297 Md. 398, 400 , 466 A.2d 1276, 1277 (1983); Busch v. State, 289 Md. 669, 675 , 426 A.2d 954, 957 (1981); Roddy v. Finnegan, 43 Md. 490, 505 (1876). Maryland courts have recognized and explained three categories of the offense of obstructing and hindering a police officer, as suggested by K.W. Lidstone in Offence of Obstruction: Obstructing Freedom?, [1983] Crim. L.R. 29, 30.

The first category is positive direct obstruction, which includes “those cases in which the constable acts directly against the citizen or his property and is physically resisted.” Id. The second category is passive direct obstruction, “in which the constable seeks to make the citizen act directly, and the citizen refuses or fails to act as required.” Id. Lastly, the third category is positive indirect obstruction, which involves situations where police are “not acting directly against the citizen but are acting indirectly against other citizens who are, or may be, about to commit offences against the criminal law, and the citizen does an act which obstructs them in their general duty to prevent or detect crime, intending to frustrate the police operation.” Id. In Cover v. State, 297 Md. 398 , 466 A.2d 1276 (1983), this Court outlined a four-part test for analyzing the offense of obstructing and hindering a police officer in the performance of his duty: ⁵⁵⁹ (1) A police officer engaged in the performance of a duty; (2) An act, or perhaps an omission, by the accused which obstructs or hinders the officer in the performance of that duty; (3) Knowledge by the accused of facts comprising element (1); and (4) Intent to obstruct or hinder the officer by the act or omission constituting element (2).

Cover, 297 Md. at 413 , 466 A.2d at 1284 . While we did not explicitly state in Cover that the four-part test would be applicable to each category of the offense of obstructing and hindering an officer, we did not foreclose this interpretation, and moreover, all of the Maryland cases discussing the common law offense of obstructing and hindering subsequent to our opinion in Cover have applied the four-part test, regardless of the category of obstruction involved. See, e.g., Attorney Grievance Comm’n v. Sheinbein, 372 Md. 224, 247-48 , 812 A.2d 981, 994-95 (2002) (involving charges of positive indirect obstruction); In re Antoine II, 319 Md. 101 , 108 n. 4, 570 A.2d 1239 , 1242 n. 4 (1990) (involving charges of positive indirect obstruction); Nieves v. State, 160 Md.App. 647, 656-57 , 866 A.2d 870, 876 (2004) (involving charges of passive direct obstruction), aff'd on other grounds, State v. Nieves, 383 Md. 573 , 861 A.2d 62 (2004). Thus, we hold that the four-part test is applicable to the circumstances of the instant case.

A discussion of each of the elements comprising the offense of obstructing and hindering an officer is instructive for our analysis of the facts in this case. The first element that must be proved by the State, at trial, beyond a reasonable doubt is that there was a police officer engaged in the performance of a duty at the time of the offense. In examining what actions constitute the performance of a “duty,” the court in Lamb v. State, 141 Md.App. 610, 626 , 786 A.2d 783, 792 (2001) (quotation omitted), determined that “a police ‘duty’ sufficient to trigger a hindering charge need not be an arrest.” Relying on the reasoning of a Connecticut court in defining the scope of an officer’s duty, the ⁵⁶⁰ court in Glover v. State, 88 Md.App. 393 , 594 A.2d 1224 (1991), explained, “ ‘[T]he test is whether the officer is acting in good faith within the scope of his [or her] duties as an officer or is pursuing a personal intent or frolic of his [or her] own.’ ” Glover, 88 Md.App. at 406 , 594 A.2d at 1230 (quoting State v. Biller, 5 Conn.App. 616 , 501 A.2d 1218, 1221 (1985) (considering the question of whether a police officer is performing an official duty, sufficient to satisfy that element of obstructing and hindering, if he is making an illegal arrest)); see State v. Richardson, 38 N.H. 208, 212 (1859) (holding that “[t]here is no such sacredness attached to personal property as can justify, in its defence, resistance to an authorized officer of the law, acting in good faith, under lawful process”). In discussing the duty element of obstructing and hindering, the court in People ex rel.

Fried v. Frank, 73 Misc. 1, 4 , 130 N.Y.S. 807 (N.Y.Spec. Term 1911), explained that “it is not the whole duty of police officers to detect and cause the punishment of crime after it is committed; they are also charged with the duty of preventing the commission of crime.” Thus, in a broad sense, “provided that the means adopted [by an officer] do not in themselves break the law, it will be difficult to establish that any action taken by a constable is outside his [or her] duty.” Lamb, 141 Md.App. at 625 , 786 A.2d at 792 (quotation omitted). The second element of the offense is an act or omission that obstructs or hinders an officer in the performance of a duty. This element requires proof of “how [a defendant’s] act actually obstructed and hindered the police officers ... based on the totality of the circumstances[.]” Nieves, 160 Md.App. at 658 , 866 A.2d at 876-77 (emphasis added).

In Cover , this Court reviewed the sufficiency of the evidence for a conviction of obstructing and hindering an officer in the performance of his duty. Cover, 297 Md. at 400 , 466 A.2d at 1277 . In that case, a plainclothes officer was observing an individual “acting in a generally suspicious manner” in an area where a burglary had recently been perpetrated. Cover, 297 Md. at 400, 404 , 466 A.2d at 1277, 1279 .

While the officer was attempting to perform surveillance, he became aware of the defendant sit ⁵⁶¹ ting in her vehicle in a nearby lot. Cover, 297 Md. at 402 , 466 A.2d at 1278 . During the surveillance, the defendant started her engine and turned on her headlights, at which point the officer approached the defendant to identify himself as a police officer and to inform the defendant of the purpose of his presence in the area. Cover, 297 Md. at 403 , 466 A.2d at 1279 .

The officer instructed the defendant to leave the area to avoid interfering with his investigation. Id. The defendant drove away, passing by the suspect of the investigation, but apparently without any conversation exchanged between them. Cover, 297 Md. at 403-04 , 466 A.2d at 1279 .

The officer then heard the defendant “sounding her car’s horn and continuing] to sound it for one and one-half to two minutes,” Cover, 297 Md. at 404 , 466 A.2d at 1279 , allegedly in an attempt to “warn[ ] the subject that he was being observed by the police,” according to the State’s theory at trial. Cover, 297 Md. at 414 , 466 A.2d at 1284 . The officer continued to observe the suspect during this time until he lost sight of the suspect and could no longer locate him. Cover, 297 Md. at 404 , 466 A.2d at 1279 .

In holding that the State’s evidence was insufficient to convict the defendant of obstructing and hindering an officer, this Court in Cover cited with approval the reasoning adopted by the court in Hinchliffe v. Sheldon, [1955] 3 All E.R. 406 (D.C.) at 408, which defined “obstructing” as an act or omission “making it more difficult for the police to carry out their duties.” Cover, 297 Md. at 410 , 466 A.2d at 1282 . Finding the-court’s reasoning in Green v. Moore, [1982] 1 All E.R. 428 (D.C.), instructive, we determined it was “necessary to define an act of hindering to include an act which deprived [the officer] of the opportunity of seeing whether, in normal circumstances, the unidentified subject would attempt to [break the law].” Cover, 297 Md. at 414 , 466 A.2d at 1284 . While we determined that there was sufficient evidence to support a finding that it was the defendant’s intent to warn the suspect of police presence, “the evidence was insufficient to support a finding beyond a reasonable doubt that the sounding of the car horn was understood as a warning and in fact hindered [the ⁵⁶² officer] from further observing the subject.” Cover, 297 Md. at 415 , 466 A.2d at 1285 (emphasis added). 4 Several treatises are instructive in defining and explaining the terms necessary to constitute the element of actual obstruction or hindrance of an officer. Lewis Hochheimer, in his treatise, stated that the act of obstructing, in the context of the offense of obstructing and hindering, “includes any impediment, direct or indirect, active or passive, to the execution of process or exercise of authority.” Lewis Hochheimer, The Law of Crimes and Criminal Procedure 436 (2d ed. 1904).

In distinguishing the offense of resisting arrest from that of obstructing and hindering, it has been noted that “[t]o constitute obstruction of an officer in the performance of his duties it is not necessary that there be an actual or technical assault upon the officer, but there must be acts clearly indicating an intention on the part of [the] accused to prevent the officer from performing his duty____”2 Hascal R. Brill, Cyclopedia of Criminal Law 1783 (1923). This Court in Busch v. State, 289 Md. 669, 677 , 426 A.2d, 954, 958 (1981) (quotation omitted), recognized that “resisting an officer in the performance of his duties was an offense that could occur even before there was an arrest.” Thus, it follows that “the offense of resisting ⁵⁶³ 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[.]” Busch, 289 Md. at 678 , 426 A.2d at 959 ; see Rollin M. Perkins & Ronald N. Boyce, Criminal Law 555 (3d ed. 1982) (noting that “there is a distinction between avoidance and resistance or obstruction” and that “[ojbstruction of justice may be committed by interference with an officer’s discharge of duties other than that of making an arrest”). Based on the language of the discussion in the foregoing authorities, we look to the meaning of several key words and phrases as defined in both legal and general purpose dictionaries. Black’s Law Dictionary defines “obstruction of justice” generally as “[interference with the orderly administration of law and justice[.j” Black’s Law Dictionary 1107 (8th ed. 2004); see also Bryan A. Garner, A Dictionary of Modem Legal Usage 611 (2d ed. 1995) (defining “obstruction of justice” as “interference with the orderly administration of law”).

Black’s Law Dictionary defines the word “obstruction” as “[t]he act of impeding or hindering something; interference.” Black’s Law, supra, at 1107. As defined by Webster’s Dictionary, the meaning of the word “obstruct” includes “[t]o impede, retard, or interfere withf.j” Webster’s II New College Dictionary 773 (3d ed. 2005). The word “hinder” is defined by Webster’s Dictionary as “t[o] impede or delay the progress of.” Webster’s, supra, at 536. The third element of the offense of obstructing and hindering is knowledge by the accused that he or she is being confronted by an officer in the performance of a duty.

In proving this element, “[mjere knowledge that the person allegedly hindered was a police officer does not suffice; there also must be knowledge that the officer was engaged in performing police duties when hindered.” DiPino v. Davis, 354 Md. 18, 28 , 729 A.2d 354, 359 (1999) (internal quotation omitted). The trier of fact is permitted to make reasonable inferences from the surrounding facts and circumstances presented by the State at trial to come to the conclusion that the ⁵⁶⁴ defendant was aware that his or her actions were directed toward an officer engaged in the performance of official duties. See Hall v. United States, 235 F.2d 248, 249 (5th Cir.1956) (holding that based on the facts of the case, including statements made to the defendant and the display of a gold police badge in plain view, “[ajdequate evidence was adduced from which the jury was justified in finding that Hall was aware that the men approaching him for questioning were federal officers”); DiPino, 354 Md. at 36 , 729 A.2d at 363 (holding that “[i]n terms of their observed and observable conduct at the time, it was wholly unreasonable for [the officer] to conclude, or even suspect, that [the defendant] was aware that she and [another officer] were then and there engaged in the performance of an official duty”). The fourth element of the offense is an intent on the part of the accused to obstruct or hinder the officer in the performance of his or her duty.

In the case of Attorney Grievance Comm’n v. Sheinbein, 372 Md. 224 , 812 A.2d 981 (2002), this Court relied on the established legal principle that “[u]nless there is evidence presented to the contrary, the law presumes that a person intends the natur[al] and probable consequences of his acts.” Sheinbein, 372 Md. at 245 , 812 A.2d at 993 (internal quotations and citations omitted). We