Webb v. State

DAVIS, J. Following a trial on October 24 and 25, 2007, Deron Maurice Webb, appellant, was convicted by a jury in the Circuit Court for Howard County of three counts of felony theft and numerous related offenses. Pursuant to each of the three theft convictions, the trial court imposed a ten-year prison sentence, each to run consecutively for an aggregate of thirty years. Appellant was further sentenced to an additional two years of imprisonment for his other convictions. 1 From these convictions and sentences, appellant filed the instant appeal, presenting two questions 2 for our review, which we have rephrased as follows: ⁵⁸³ 1. Does application of the single larceny doctrine dictate that appellant’s actions constituted a single criminal act? 2.

Did the trial court’s instructions to the jury adequately cover legal issues properly generated by the evidence? For the reasons that follow, we answer appellant’s first question in the affirmative and we conclude that appellant’s second question was not properly preserved. Accordingly, we reverse the judgment of the circuit court and remand for further proceedings consistent with this opinion. FACTUAL BACKGROUND On December 7, 2007, two motorcycles and a van were reported stolen from the area around Glen Burnie, Maryland.

Howard County police were not provided with information as to the identity of the perpetrators; however, they were able to locate one of the motorcycles by its LoJack 3 signal near Port Capital Drive in Howard County. The investigating officers determined that the signal emanated from a van parked in the driveway of a townhouse at 7235 Old Friendship Way. After several hours of covert surveillance of the van, appellant was seen exiting the townhouse and entering the van. The officers followed the van once it turned onto the main road.

Shortly thereafter, the van collided with two parked cars, after which appellant jumped out of the van and escaped on foot. The police pursued appellant and apprehended him two to three minutes later. The stolen motorcycles were found inside the van, which was also later determined to have been stolen. ⁵⁸⁴ A jury trial was held on October 24 and 25, 2007. Prior to jury deliberations, the trial judge charged the jury as follows during the course of his instructions: Once again, these written instructions are going back.

You can review them individually or collectively to determine what, if any, significance you give to these instructions and what, if any differences you see. Appellant’s counsel interposed no objection, nor did he take exceptions to the instruction. At the conclusion of jury deliberations, appellant was convicted of three counts of possession of stolen property—two counts of misdemeanor fleeing and eluding, and one count each of reckless driving, “failing to stop after an unattended vehicle and property damage accident” and driving while privilege was suspended. Appellant was acquitted, inter alia, of the counts of theft of motor vehicle.

On January 11, 2008, appellant was sentenced to thirty-two years to the Division of Correction. This timely appeal followed. Additional facts will be provided infra as warranted. ANALYSIS I Appellant contends that application of the single larceny doctrine dictates that his actions constituted a single criminal act.

Appellant was convicted and sentenced for three separate counts of possession of stolen property 4 subsequent to the ⁵⁸⁵ thefts of the two motorcycles and the van. According to appellant, however, the State failed to meet its burden of proving that these thefts were not part of a single larcenous scheme or course of conduct and, therefore, appellant’s thefts should have been deemed as one criminal act under the “single larceny doctrine.” Instead, appellant was sentenced to consecutive ten-year sentences for each of the three counts of possession of stolen property. A Single Larceny Doctrine The Court of Appeals first recognized the “single larceny doctrine” in State v. Warren, 77 Md. 121 , 26 A. 500 (1893), and more recently reexamined the doctrine in State v. White, 348 Md. 179 , 702 A.2d 1263 (1997) and Kelley v. State, 402 Md. 745, 756 , 939 A.2d 149 (2008). The doctrine evolved as a common law principle which typically arises in three contexts: (1) whether a count in a charging document alleging that the defendant stole the property of several persons at the same time charges more than one offense and is therefore ⁵⁸⁶ duplicitous; (2) whether a prosecution, conviction, or sentencing for stealing the property of one person bars, under double jeopardy principles, the prosecution, conviction, or sentencing for having stolen the property of another person at the same time; and (3) whether, when the property of different persons is stolen at the same time, the values of the separate items of property may be aggregated to raise the grade of the offense or the severity of the punishment, to the extent that either is dependent on the value of the property taken.

White, 348 Md. at 182 , 702 A.2d 1263 . In Warren , the Court of Appeals, faced with the first of these fact patterns, answered the question: “Does the stealing of several articles of property at the same time, belonging to several owners, constitute one offense, or as many separate offenses as these different owners of the property stolen?” Warren, 77 Md. at 122 , 26 A. 500 . Although the Court, in its analysis, did not state that its decision was based on the single larceny doctrine, it applied the principle, expositing that “the stealing of several articles at the same time, whether belonging to the same person, or to several persons, constituted but one offense.” Id. (Emphasis added).

The Warren Court then articulated its rationale, id.: It is but one offense, because the act is one continuous act— the same transaction; and the gist of the offense being the felonious taking of the property, we do not see how the legal quality of the act is in any manner affected by the fact that the property stolen, instead of belonging to one person is the several property of different persons. The Court cautioned, however, that “the stealing of property at different times, whether belonging to the same person or different persons, constituted separate offenses.... ” Id. at 123 , 26 A. 500 . (Emphasis added); see Kelley, 402 Md. at 750 , 939 A.2d 149 . Subsequent to State v. Warren, however, the Court of Appeals had determined that a single charge against a defendant could encompass property stolen at different times.

Delcher v. State, 161 Md. 475, 483 , 158 A. 37 (1932) ⁵⁸⁷ (where defendant stole money on several occasions over a two-year period, it was not necessary to charge separate counts “covering each of the items in a series of continuing offenses”); Horsey v. State, 225 Md. 80, 83, 169 A.2d 457 (1961) (where defendant stole various items of clothing and accessories on different dates from store where he was employed, the trial court could properly conclude “that the separate takings were pursuant to a common scheme or intent” and that it “is generally held that if they are, the fact that the takings occur on different occasions does not establish that they are separate crimes”). Most recently, in Kelley, 402 Md. at 758 , 939 A.2d 149 , the Court of Appeals reasoned that a single scheme conceivably may be found where multiple takings from different owners at different locations are in quick and unbroken succession and from a limited area ... [¡however, w]here there is a more significant time lapse between the takings ... or they occur from locations that are not in very close proximity, the general rule that the takings are not part of a single scheme or continuing course of conduct should be applied.... This determination “is a factual matter that must be based on the evidence.” Id. at 756 , 939 A.2d 149 . The Court of Appeals explained that the burden of proving whether the takings were separate or part of a single scheme rested with the State: “The question, then, is whether the State has sufficiently established beyond a reasonable doubt that there was, or ... was not, a single larcenous scheme or course of conduct.” Id.

B Maryland Theft Statute The legislature created the theft statute to consolidate, in a single statutory scheme, the various common law larceny related crimes. State v. Burroughs, 333 Md. 614 , 636 A.2d 1009 (1994). Acquah v. State, 113 Md.App. 29, 48 , 686 A.2d 690 (1996). Prior to the enactment of the consolidated theft ⁵⁸⁸ statute, larceny, receiving stolen goods and related theft offenses were delineated under separate criminal statutes.

Maryland’s Theft Statute provides several theories, requiring the State to prove different elements under which an accused can be charged. See Md.Code Ann. (2002, 2008 Supp.), Criminal Law (C.L.), §§ 7-104, 7-105. 5 Section 7-104(c), entitled “Possessing personal property,” provides: (1) A person may not possess stolen personal property knowing that it has been stolen, or believing that it probably has been stolen, if the person: (i) intends to deprive the owner of the property; (ii) willfully or knowingly uses, conceals, or abandons the property in a manner that deprives the owner of the property; or (iii) uses, conceals, or abandons the property knowing that the use, concealment, or abandonment probably will deprive the owner of the property. Appellant postulates that, unlike other versions of theft which require the accused to have actually taken the property as part of the theft, § 7-104(c) requires mere possession of stolen goods. Cf. § 7-104(a) (“person may not willfully or knowingly obtain or exert unauthorized control over property”); § 7-105 (“person may not willfully take a motor vehicle”).

Appellant points out that the Court of Appeals has determined that, although one statute encompasses § 7-104(a) and § 7-104(c), an accused cannot “be both the thief and possessor of the same stolen good.” Grant v. State, 318 Md. 672, 679 , 569 A.2d 1237 (1990). The single larceny doctrine is codified under C.L. § 7-103: (f) Course of conduct—Aggregation.—When theft is committed in violation of this part under one scheme or continuing course of conduct, whether from the same or several sources: (1) the conduct may be considered as one crime; and ⁵⁸⁹ (2) the value of the property or services may be aggregated in determining whether the theft is a felony or a misdemeanor. C Preservation Prior to sentencing, the circuit court requested the preparation of a pre-sentence investigation. The investigation, submitted by the Division of Parole and Probation (DPP), did not treat the three theft counts separately for sentencing purposes.

In its Memorandum in Aid of Sentencing, the State took issue with the DPP’s treatment of the theft counts as a single event: In reviewing the sentencing guidelines submitted by the [DPP] the State does not agree that they correspond with the calculations as provided by the Maryland Sentencing Guidelines Manual. The manual provides sufficient guidance in calculating multiple criminal events. * * * The evidence presented during the trial was that the motorcycles and tags were stolen on different days and from different victims at different locations. The convicted offenses for thefts all relate to different victims and different location [sic] as to where the thefts occurred. Additionally, at the sentencing hearing, the State opposed the manner in which appellant’s sentence was calculated in the Memorandum in Aid of Sentencing prepared by DPP: Your Honor, as the State has submitted already in their memorandum, in our request to correct the sentencing guidelines that was submitted by the [DPP], the State believes that the individual count that they relate to the (inaudible) of those items, those are separate criminal events and so, therefore, they should be added and not taken together from the low to high as ivas suggested by the Parole and Probation agent that submitted the report. ⁵⁹⁰ I do have a copy, Your Honor, of each guidelines [sic] for each event as separated as is required by the Maryland Sentencing Guidelines Manual showing the (inaudible) of each offense for each one of the criminal events for the separate thefts.

(Emphasis added). i The Parties’ Contentions Approximately the first half of the State’s appellate brief is devoted to the argument that appellant, by failing to object, has not preserved for appellate review the issue of the court’s refusal to apply the single larceny doctrine. The State posits that the DPP concluded that appellant’s convictions constituted only one crime; however, appellant’s counsel did not object to the State’s opposition to the position taken by DPP and failed to otherwise address the issue. The gravamen of the State’s position is that, “Because the jury could have found that Webb received the vehicles at different times or places ..., it was appropriate to sentence Webb on three separate theft counts.” (Emphasis supplied). Appellant likewise concedes, in his brief, that his counsel failed, at sentencing, to object to the trial court’s imposition of three separate, consecutive sentences.

The trial court, after hearing the State’s argument and DPP’s findings, determined not to apply the single larceny doctrine. The State maintains that, generally, appellate courts have held that a failure to lodge an objection during sentencing waives the right to appeal the sentence. See, e.g., Brecker v. State, 304 Md. 36, 40 , 497 A.2d 479 (1985). The State also relies on Reiger v. State, 170 Md.App. 693 , 908 A.2d 124 (2006), where we said: [I]t is the availability of an opportunity to ask for and obtain immediate relief from the sentencing court that determines whether a contemporaneous objection is necessary.

Simply ⁵⁹¹ stated, when there is time to object, there is opportunity to correct. Id. at 701 , 908 A.2d 124 . The State thus sums up its argument: To be clear, this is not a case where trial counsel failed to recognize an issue, trial counsel did not object, and the judge made no ruling. The issue was raised and discussed twice—once in the prosecutor’s sentencing memorandum, and once at the sentencing hearing itself.

Thus, the applicability of the single larceny doctrine to this case ivas raised and decided below; but due to his failure to object, [appellant] has not preserved his claim for review. Appellant, citing the above excerpt from the State’s brief, retorts that we should reject its claim of waiver “[w]here the State concedes the issue was raised in and decided by the trial court.” Expounding, he relies on DeLeon v. State, 407 Md. 16 , 962 A.2d 383 (2008), for the proposition that the primary purposes of the preservation rule are to bring errors to the attention of the trial court so the court has an opportunity to correct them and to prevent piecemeal litigation and aid in the speedy resolution of litigation. The error, he says, “was brought to the attention of the trial court by Parole and Probation, disputed by the State, and then decided by the trial court.” Citing Carter v. State, 73 Md.App. 437, 443 , 534 A.2d 1015 (1988), he maintains that the court, having had the opportunity to consider both sides of the issue before ruling against him, further objection, by his trial counsel would have been futile, and was not required. He further suggests that our review of the issue on this appeal will obviate the expense of post-conviction review and further the objective of preventing piecemeal litigation and aiding in the speedy resolution of litigation.

Capsulizing his argument is the language of Maryland Rule 8-131 (a), which he points out, makes no mention of the requirement to object and provides, in the disjunctive, rather than the conjunctive, for appellate review when an issue has been “raised in or decided by the court.” ⁵⁹² ii Generally, a party preserves an issue for appeal by interposing an objection—with particularity—on the record. This requirement provides full opportunity for the trial court to evaluate and assess a party’s argument. See DeLeon v. State, 407 Md. at 21 , 962 A.2d 383 (primary purposes of the preservation rule are to bring errors to the attention of the trial court so the court has an opportunity to correct them and to prevent piecemeal litigation and aid in the speedy resolution of litigation). The Court of Appeals, in Abeokuto v. State, 391 Md. 289, 326-27 , 893 A.2d 1018 (2006), articulated the rationale for the requirement that an objection be interposed to preserve an issue for appellate review: In Conyers, we explained the reasons why we ordinarily do not exercise the discretion to address and decide unpreserved issues: The rules for preservation of issues have a salutary purpose of preventing unfairness and requiring that all issues be raised in and decided by the trial court, and these rules must be followed in all cases including capital cases.

The few cases where we have exercised our discretion to review unpreserved issues are cases where prejudicial error was found and the failure to preserve the issue was not a matter of trial tactics. The Abeokuto Court added, “We will review the unpreserved claim only where the unobjected to error can be characterized as compelling, extraordinary, exceptional, or fundamental to assure the defendant a fair trial.” Id. We deem instructive our prior decisions and decisions by the Court of Appeals, which have considered the preservation issue, in the context o'f a defendant’s claim that his conviction should be merged for sentencing purposes. In Slye v. State, 42 Md.App. 520, 522-23 , 401 A.2d 195 (1979), a case involving merger, we considered the effect of the imposition of concurrent sentences where the convictions should have been merged: ⁵⁹³ Examination of the record reveals that appellant’s trial counsel moved for a judgment of acquittal at the close of the State’s case and stated, in the course of his supporting-argument, that “the application of both the grand larceny and grand shoplifting would seem to merge somehow or some way in that aspect.” The motion was denied.

Appellant did not object thereafter when the trial court submitted both offenses to the jury nor when the jury returned a verdict convicting him under each count nor when the court sentenced him to 10 years for grand larceny and a concurrent three-year term for shoplifting. The State, citing Rose v. State, 37 Md.App. 388 , 377 A.2d 588 , cert. denied, 281 Md. 743 (1977), argues that Rule 1085 precludes appellate review of the merger issue when, as here, the sentences imposed were concurrent, not consecutive. Writing for the Court in Rose v. State, Judge Davidson observed: This Court will not ordinarily decide any point or question which does not plainly appear to have been tried or decided by the trial court. We have, however, occasionally decided such points or questions.

While we have often refused to decide a question of merger which has not been raised or decided in the trial court in cases in which concurrent terms were imposed, we have not declined to consider such questions in cases in ivhich consecutive terms ivere imposed. In such cases we shall decide the merger question in order to avoid the manifest injustice which would result if consecutive sentences were imposed for merged offenses. (Emphasis added.) 37 Md.App. at 393-94 , 377 A.2d 588 . Explicating the reasoning underpinning the exception to the requirement that an objection be registered in order to obtain appellate review, we continued in Slye : The “manifest injustice” rationale enunciated in Rose is, we think, clearly applicable to the instant appeal.

Here, appellant contends that the larceny conviction, for which he received a sentence of 10 years, should merge into the ⁵⁹⁴ shoplifting conviction, for which he received a 3-year term. The latter, it is true, was concurrent. However, if we were not to entertain the merger issue because of Md. Rule 1085, appellant is faced with the prospect of an additional seven years incarceration for an offense which he claims, on the authority of Newton v. State, 280 Md. 260 , 373 A.2d 262 (1977), should have been merged into the conviction for which he received the lesser, 3-year, sentence. The situation is, in practical effect, indistinguishable from that where consecutive sentences are imposed and considerations of “manifest injustice” are equally present.

In this respect, we deem it appropriate to point out that, upon close scrutiny, the cases wherein we have declined to review the question of merger of concurrent sentences because of Rule 1085, do not involve these considerations. In those cases, unlike the present appeal, the sentence imposed for the conviction proposed to be merged was less than or, at most, equal to the sentence imposed for the other conviction. Therefore, under the circumstances of this case, we shall decide the merger question. Id. at 524, 401 A.2d 195 .

See, e.g., Brooks v. State, 38 Md.App. 550, 552 , 381 A.2d 718 (1978) (Where appellant had received consecutive sentences of twelve years for assault with intent to murder and three years for carrying a weapon openly with intent to injure, citing Rose v. State, 37 Md.App. at 393-94 , 377 A.2d 588 , we held: “Because appellant was given consecutive sentences, we will consider the issue of merger even though it was not raised or decided below.”). See also Johnson v. State, 38 Md.App. 306, 316 , 381 A.2d 303 (1977); Colbert v. State, 18 Md.App. 632, 645 , 308 A.2d 726 , cert. denied, 269 Md. 756 (1973); Carter v. State, 15 Md.App. 242, 248 , 289 A.2d 837 , cert. denied, 266 Md. 734 (1972); Moore v. State, 15 Md.App. 396, 406 , 291 A.2d 73 , cert. denied, 266 Md. 740 (1972); Alston v. State, 11 Md.App. 624, 630 , 276 A.2d 225 , cert. denied, 262 Md. 745 (1971). ⁵⁹⁵ In this case, the trial court imposed three ten-year prison sentences, each to run consecutively, for an aggregate of thirty years. Assuming, arguendo, that the trial court erred in refusing to apply the single larceny doctrine, the error, under the court’s ruling, would result in appellant serving twenty years in excess of what he would have served had he received the benefit of a favorable ruling. Similar to the rationale underpinning the Slye and Rose decisions, appellate review should be afforded Webb in order to avoid the manifest injustice which would result if consecutive sentences were improperly imposed.

Slye, 42 Md.App. at 524 , 401 A.2d 195 . Moreover, the State is not unduly prejudiced in the case sub judice because the State was not deprived of the opportunity to present evidence on whether the single larceny doctrine should have been applied since the issue does plainly appear by the record to have been raised in or decided by the trial court. See Fitzgerald v. State, 384 Md. 484, 505-06 , 864 A.2d 1006 (2004) (Permitting the appellant to raise the issue of whether canine’s ability to detect diazepam tablets renders his sniff a search for the first time on appeal would undermine the purposes behind Rule 8-131, i.e., “it would prejudice unfairly the State, because the State did not have the opportunity to present evidence on this complex issue.”). Contrary to what occurs most often, here, the State insists that it is the very fact that the issue ivas raised and decided below which imposed a heavier burden on appellant to object, which should operate to preclude appellate review of the court’s refusal to apply the single larceny doctrine.

The State emphasizes in its brief, “This is not a case where trial counsel failed to recognize an issue, trial counsel did not object, and the judge made no ruling.” As appellant concedes, his trial counsel did not object to the trial court’s ruling. DDP, however, in its pre-sentence memorandum and at the sentencing hearing, had articulated the precise position which appellant now embraces and the State, at that hearing and in its pre-sentence memorandum, argued against the position taken by DDP. The court, having consid ⁵⁹⁶ ered the pre-sentence memorandum of the State and DDP, decided the issue averse to appellant. Patently, the precise issue for which appellant now seeks appellate review was raised and was decided by the trial court.

Accordingly, the requirement “that counsel bring the position of their client to the attention of the lower court at the trial so that the trial court can pass upon, and possibly correct any errors in the proceedings,” Fitzgerald, 384 Md. at 505 , 864 A.2d 1006 , was achieved in this case, albeit by a third-party, DDP, in its Memorandum in Aid of Sentencing. That the court would have ruled differently had appellant’s counsel added his voice to DDP’s Memorandum in Aid of Sentencing is nowhere evident from the record. In Smith v. State, 394 Md. 184, 201 , 905 A.2d 315 (2006), the appellant’s counsel revealed allegedly privileged information to the trial court and the judge repeatedly stated that her determination concerning Smith’s Fifth Amendment rights “was based upon the proffer of the State and [Smith’s counsel]^ statement that, after consulting with his client, he didn’t believe he had a Fifth Amendment privilege.” Noting the Court had held in Newman v. State, 384 Md. 285 , 863 A.2d 321 (2004) that “only the client has [the]