Vincent v. State

BLOOM, Judge. Kevin Vincent a/k/a Kevin Davis, the appellant, was indicted for assault with intent to murder, assault with intent to disable, malicious shooting with intent to disable, use of a handgun in the commission of a crime of violence, assault and battery. A jury in the Circuit Court for Prince George’s County convicted him of malicious shooting with intent to disable (Third Count), use of a handgun in the commission of a crime of violence (Fourth Count), and battery (Fifth Count). Merging the battery conviction into the malicious shooting conviction, the court imposed a sentence of ten years for the shooting and a concurrent twenty year sentence for the handgun violation, but suspended all but thirteen years.

Appellant now contends that: 1. The court erred in admitting evidence of other crimes. ³⁴⁶ 2. The evidence was insufficient to sustain his conviction of use of a handgun in the commission of a crime of violence; and 3. The court committed plain error in instructing the jury.

We see no basis for reversal on either of the first two issues. On the third issue, however, we agree that the court’s instruction to the jury relative to the handgun charge constituted error that was prejudicial to appellant, and we shall reverse that conviction. Facts The facts are relatively simple. Joe Reltherford, the victim, was a pimp.

A prostitute named Angela Young worked for him. Young left Reltherford and “got with” appellant, but later returned to Reltherford. Appellant retained Young’s car. When Reltherford went to retrieve the car, appellant shot him in the arm and side.

I Appellant complains that the court permitted the State to introduce evidence to prove that appellant had prostitutes working for him. He contends that such evidence of crime other than the one with which he was charged was inadmissible and prejudicial. Other crimes evidence may be admitted if relevant to a material issue (not merely to show that the accused is a bad person with a propensity to commit crimes) and if it is reasonably necessary to the State’s case, i.e., if its prejudicial effect is outweighed by its probative value. See State v. Faulkner, 314 Md. 630 , 552 A.2d 896 (1989); Harris v. State, 81 Md.App. 247 , 567 A.2d 476 (1989); McKinney v. State, 82 Md.App. 111 , 570 A.2d 360 (1990).

One well recognized basis for the admission of other crimes evidence is the establishment of motive. Faulkner, 314 Md. at 634 , 552 A.2d 896 . Here, evidence that Ms. Young, the prostitute, had left one pimp, the victim, for ³⁴⁷ another, appellant, and then opted to resume working for the victim, furnished the motive for the shooting. The victim’s appropriation of a source of appellant’s income would be likely to cause resentment and thus provoke a violent reaction.

And when we weigh the prejudice to appellant that might result from the introduction of evidence of pandering or receiving the earnings of a prostitute against the need of the State to prove a motive for the violent crimes with which appellant was charged, we find no error or abuse of discretion in admitting the other crimes evidence. II Based upon the fact that he was acquitted of assault with intent to murder and convicted only of shooting with intent to disable, which is not a predicate crime of violence under the handgun statute, appellant argues that the evidence was insufficient to prove the crime of use of a handgun in the commission of a crime of violence. This issue was not preserved for appellate review. Appellant moved for judgment of acquittal at the end of the State’s case and then renewed his motion despite the fact that he presented no evidence.

At the time the motion was first made, the only reason for acquittal that was stated with any degree of particularity, as required by Md.Rule 4-324(a), was the inadequacy of the evidence to show an intent to murder (First Count). As to the other charges, including the handgun charge (Fourth Count), defense counsel merely made “a general motion for judgment of acquittal,” stating no grounds. That was not adequate to preserve a sufficiency issue. See State v. Lyles, 308 Md. 129, 135-36 , 517 A.2d 761 (1986).

When the motion was renewed, counsel added an assertion that the location of the bullet wounds would not support an inference of an intent to disable (Third Count). As to the handgun charge (Fourth Count), counsel posited that if the court were to grant the motions on both the First and Third counts, the Fourth Count would have to fall as well because there would then ³⁴⁸ be no predicate crime of violence. The issue that appellant now seeks to raise — that proof of the offense of shooting with intent to disable is insufficient to support the handgun conviction — was never raised below; it may not be raised for the first time on appeal. Md.Rule 8-131.

Ill During its instructions to the jury, the court stated: Lastly, ladies and gentlemen, the defendant is charged with use of a handgun in the commission of a crime of violence. Use of a handgun in the commission of a crime of violence. In order for the State to prove to you beyond a reasonable doubt that the defendant is guilty of that offense,