Wilder v. State

J. FREDERICK SHARER, Judge, Retired, Specially Assigned. In the Circuit Court for Baltimore County, Aubrey David Wilder, appellant, was convicted by a jury of various charges of first-degree assault, reckless endangerment, and the use of a handgun in the commission of a crime of violence. 1 ³²⁷ In this appeal, Wilder raises four issues, which, as recast and reordered, are: 2 I. Whether the evidence is sufficient to sustain the convictions.

II

Whether the trial court abused its discretion by admitting “other bad acts” evidence.

III

Whether the trial court abused its discretion by permitting a police officer to provide lay opinion testimony.

IV

Whether the trial court abused its discretion by not removing a juror who had raised doubts about her ability to be “fair and just.” We conclude that the trial court abused its discretion by permitting testimony about cellular tower site location without qualifying the State’s witness as an expert, and that the error is not harmless beyond a reasonable doubt. Therefore, we shall vacate Wilder’s convictions and order a new trial on all counts except for the handgun charges. With respect to the handgun count, we are unable to hold that the evidence establishes beyond a reasonable doubt that Wilder used a “handgun” in the commission of the offenses, and shall reverse. We further conclude that the trial court did not abuse its discretion by admitting evidence of a prior threat made by Wilder, and did not abuse its discretion by not granting a mistrial.

Finally, we need not consider appellant’s challenge to the trial court’s decision not to remove a juror, as that issue is not likely to recur in a retrial. ³²⁸ FACTUAL AND PROCEDURAL HISTORY The genesis of the charges against Wilder is a shooting incident that took place in the early morning hours of July 25, 2007, in Windsor Mill, Baltimore County. A gunman fired four shots at the residence of Robert Lee Williams, Jr., at 3314 Lynne Hall Drive. 3 At the time, the residents of the house included Williams’s father; his son, Robert Lee Williams III (Robert); Robert’s girlfriend; two children; a niece, Lavivian Jones, and her child, Zaire. Williams was acquainted with Wilder through Jones. Wilder is the father of Jones’s son.

Williams testified that on the afternoon of July 24, 2007, he was outside of his house, along with Jones, her child, and Robert. Wilder drove up, stopped across the street from the house, and walked up to Jones at the edge of the property. Williams explained that because Wilder was forbidden to be on his property, he could go no further when visiting Jones and their child. Wilder had not been welcome at the Williams house because he and Jones “always had issues.” Wilder and Jones at first conversed quietly.

They began to argue, however, and Wilder, who was holding the child, walked back towards his car. Jones became concerned that Wilder would drive away without securing Zaire in a car seat, and she prevailed upon her cousin, Robert, to intervene. Robert suggested to Wilder that he place the child in a car seat. Wilder took offense, and an argument arose.

Robert explained why he intervened in the dispute: Well, at some time [Wilder] was tryin’ to take him. And, you know, no car seat. And I was, um, basically cornin’ to stop him from takin’ the baby ‘cause he was takin’ it with no car seat. And my cousin [Jones] was tellin’ me, you know, come, cause he was tryin’ to take the baby. ³²⁹ When I got down there I told him, you know, you ain’t takin’ the baby.

And specially, you know, you ain’t got no car seat. You know what I’m sayin’? And then after that I guess he, you know, went on the offensive, sayin’, this is my son, whatever, whatever. So he tryin’ to get in the car with the baby with no car seat.

Robert alluded to threats Wilder had made during an earlier conversation with Robert’s mother, and further described his confrontation with Wilder on the afternoon before the shooting: A. And I said, due to the past comments you made, you know, previous to my mother, and threats. A. I said, you got nerve to come around here with this, you know. That’s when I — I was kinda upset, you know, ‘cause what he said to my mother and all that. So I asked him to step out of the car, you know.

He— like, he ain’t step out of the car. He ain’t do none of that. Still got the baby in his hand. So I’m like, step out the car.

He never step out the car. Then after that he pulls off with the baby, goes halfway down the street, gets out the car. Ah, you messed up. You messed up.

You messed up. Then he drove off. Just after driving off, Wilder stopped for a moment and was heard to remark that “he [Robert] just F’ed up.” The elder Williams remarked that Wilder’s demeanor was “like a tough-guy thing.” Jones recounted that after Wilder took Zaire and drove away, she “had to call Baltimore County [police] to get my son back ... because Wilder had Zaire without a car seat.” ³³⁰ Williams returned home from work at about 2 a.m. on the morning of the 25th, and remained awake because he had planned to leave for a trip that morning. He had mentioned to his wife that he was concerned by the hostilities between Wilder and Robert, and that “things are gettin’ more intense with [Wilder] and Robert, considerin’ what happened earlier that day.” Just before he was set to leave on his trip, Williams heard four gunshots.

He rushed to the top of the stairs and saw Wilder’s Volvo station wagon “pullin’ off.” Williams recounted that the car was “just pullin’ out my driveway, pullin’ around the circle.” He could not see the driver and could not tell how many people were in the station wagon. Four rounds hit the house and went through the walls. Williams identified four locations where the gunshots hit the house. One round entered a hallway shortly after Williams had passed by that point.

Williams described additional damage. Police responded to the scene, and found two shell casings. Williams later discovered two additional bullets as workmen were repairing the house. According to the lead detective, a firearms technician concluded that the bullets recovered were “probably” fired from a “9 millimeter-type handgun, and a 9 millimeter’s only fired out of a semi-automatic gun.” The prosecutor asked Williams about an earlier incident that had taken place on July 3, when Wilder threatened to come to the Williams house.

Over defense counsel’s objection, Williams testified that when his wife told him that Wilder had called her with this threat, he then called Wilder. Wilder “said that Vivian [Jones] disrespected him for the last time and that he was cornin’ out to our house with a gun.” 4 Williams, who was not at home at the time of the call, instructed his wife, Ursula, to call the police, and an officer responded. When he arrived home, Williams met the officer and discussed the threat. Approximately 20 minutes later, ³³¹ Wilder drove into the cul-de-sac that was adjacent to Williams’s house, made a U-turn, and drove away, apparently seeing the police car that was parked in the circle.

Ursula Williams recalled her telephone conversation with Wilder on July 3. Her niece, Lavivian Jones, had borrowed Wilder’s car, which Mrs. Williams described as “copperish” in color, and Wilder had called inquiring about the vehicle. Mrs. Williams said that neither Jones nor the car was at the house. Wilder became upset, and threatened to come to the house.

According to Mrs. Williams, Wilder said something to the effect that “he didn’t care who ... got it.” Mrs. Williams called Jones and told her to return the car, and also called her husband, who in turn instructed her to call the police. When asked why Wilder was not welcome at their house, Mrs. Williams explained that her husband enforced the ban because there had been “incidents” between Lavivian and Wilder. She elaborated: [PROSECUTOR]: And you also said that the defendant was not welcome in your home because of incidents with or between him and Lavivian? A. Yes.

Q. And what do you mean by that? A. Lavivian, she and Aubrey had gone together, but it’s like Vivian always get hurt or somethin’ when she’s with Aubrey, you know. So my husband just — you know, we don’t believe in that. Q. What do you mean, hurt?

A. Hit on, beaten. [DEFENSE COUNSEL]: Objection. THE COURT: All right. The objection’s sustained. Defense counsel also requested a mistrial.

The trial court denied this motion, noting that, initially, defense counsel failed to object when Mrs. Williams alluded to Lavivian getting “hurt.” Lavivian Jones testified that on the morning of the shootings, she and Wilder were talking to each other on their cell ³³² phones. She recalled that they were talking “off and on” at about 2:80 a.m., when Wilder said that he was at a club. Thinking that everyone assumed that Wilder had fired the shots, Jones called him shortly after the shooting “to see what he had to say.” Wilder denied any involvement in the shooting. Troy McLain Wallace lives across from the Williams house.

He was awake just before the shooting. He heard four gunshots, and reacted immediately: And I was walkin’ down the hallway, and at that time I heard four — what I would consider four shots. I then looked out my window. I was already up and walkin’, so I responded to the window probably within a second.

And I looked out, and that’s when I viewed the vehicle in the Stowe Court loopin’ and the court and goin’ out. At that time I dialed 9-1-1. And I could hear my neighbor across the street, and I hollered back to him — I can’t remember what we said to each other, but it was just to make sure he was all right and just to indicate that I just dialed 9-1-1. [The car] was a late model Volvo, a bronze, rust, copper-color car. It’s kinda hard to describe. [PROSECUTOR:] What style of Volvo?

A. It’s a little boxy, station wagon. Q. And had you seen that car before? A. Yes, ma’am, the day before. Q. The day before.

Okay. Did you know who that car belonged to? A. The defendant. Q. When you saw it the day before, did you see the defendant with that car?

A. Yes, ma’am. ³³³ Wallace also recounted the scene that took place the afternoon before the shooting. He could tell that “there was some problems[,]” and recalled that there was an argument that “was gettin’ kinda hostile.” Detective Hanna 5 was the lead investigator, and it was he who arrested Wilder at his cousin’s house on Northwood Drive. Two cell phones were recovered incident to the arrest. Wilder was then taken to the station, where Hanna interviewed him after advising him of his Miranda rights. 6 Wilder denied shooting at the house, asserting that he would never shoot at a house where his child was living.

He did describe how he had been “disrespected” by Jones, and was also angry with Jones’s cousin Robert. Hanna recalled: Well, this is what I’m hearing from Aubrey, the defendant. He’s telling me that he’s being disrespected by this individual, by this other male, who has no right to come in, in his opinion — and, frankly, in mine too. I agreed with him.

He has no right to come into this. And he actually would call Aubrey names ... he was very disrespectful to [Wilder]. And it turned out that [Wilder] ended up leavin’ — leavin’ the scene kind of in a ... very hastily and in a very angry tone. Wilder told Hanna that he had been at his cousin’s house from 10:00 p.m. on the evening before the shooting until the time he was arrested “a little before lunch.” Over objection by defense counsel, on hearsay grounds, Hanna recounted that he had confronted Wilder with the fact that cell phone records suggested otherwise, and the fact that people observed his Volvo at the time of the shooting.

Wilder continued to deny that he was involved. Hanna persisted: ³³⁴ I just tried to describe to him where the — why we havin’ these questions, why this becomes an issue, showing that these hits on those towers indicate that that phone was in the area of the shooting, and then actually moved along the map and ended up hitting on the towers right near North-wood Drive. Hi H' Those towers — the hits we got on those towers also indicated calls in and out from that phone during the time around the shooting and along that so-called path, what I call it, back to the house. And I had questions to him about certain specific calls ... it deserved some sort of explanation on his part as to why certain numbers were called at certain times of the day and just how those calls were made.

Hi H? * He — he offered no explanation. He said ... other than denying during the interview ... he would continue to say, I can’t help you. Hanna testified at length about mapping Wilder’s whereabouts around the time of the shootings by the use of cell phone tracking and GPS technology. He also determined that the Volvo Cross Country was registered to Wilder.

The defense called two witnesses. Wilder’s mother, Arlene, recounted that on July 3 her son had been extremely upset over the fact that Jones had taken his car and had not returned it. In August, following the shootings, Mrs. Wilder went to the Williams house at about 4:30 a.m. and took photographs of the Volvo to substantiate her position that it would be impossible to discern the color of the vehicle at night. Dwayne McKenzie offered alibi testimony.

He testified that Wilder and he went to clubs in Baltimore in the late evening and early morning of July 24th and 25th, and then returned to McKenzie’s home in Woodlawn at about 4:00 a.m. McKenzie borrowed Wilder’s Volvo to take a companion home, ³³⁵ and returned to Woodlawn at about 4:30 a.m. Wilder was asleep on the couch. We will recite additional facts as they relate to the issues before us.

DISCUSSION Standards of Review The number of issues before us requires the application of several standards of appellate review. We review the trial court’s rulings on the admissibility of evidence under an abuse of discretion standard. Bernadyn v. State, 390 Md. 1, 7 , 887 A.2d 602 (2005). With respect to the admission of “bad acts” or “other crimes” evidence, we have plenary review over the legal determination of whether the challenged evidence meets a “special relevance” exception.

Streater v. State, 352 Md. 800, 809 , 724 A.2d 111 (1999). We review the trial judge’s refusal to grant a mistrial for an abuse of discretion. Miles v. State, 365 Md. 488, 569 , 781 A.2d 787 (2001). We review de novo the issue of whether the evidence is sufficient to sustain Wilder’s convictions.

Hudson v. State, 152 Md.App. 488, 523 , 832 A.2d 834 , cert. denied, 378 Md. 618 , 837 A.2d 928 (2003). In reviewing for sufficiency, we must determine “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 , 61 L.Ed.2d 560 (1979)(emphasis in original). Accord State v. Smith, 374 Md. 527, 533 , 823 A.2d 664 (2003). 1. Sufficiency of the Evidence Citing the lack of an identification of the shooter and physical evidence linking him to the scene, Wilder claims that the circumstantial evidence adduced at trial is insufficient to establish his criminal agency, or that a handgun was used in the commission of these crimes.

The State responds that the first argument has not been preserved, because the defense ³³⁶ motions for acquittal were argued on different grounds. The State also contends that there is sufficient circumstantial evidence pointing to Wilder as the gunman, and to the nature of the firearm he employed. At the close of the State’s case, the defense moved for acquittals, asserting that the evidence, with respect to first-degree assaults and reckless endangerment counts, failed to establish that the victims in the house were located near the entry points of the four projectiles. Therefore, counsel argues, the inhabitants of the home were not endangered.

The defense also asserted that the evidence failed to show that Wilder “ever possessed a handgun, ever shot a handgun, that would qualify for being in possession of a handgun in the use of the commission of a crime of violence.” Following the close of all the evidence, the defense submitted on its prior arguments. We first take up the State’s argument that Wilder’s sufficiency challenge has not been preserved. Citing Anthony v. State, 117 Md.App. 119 , 699 A.2d 505 , cert. denied, 348 Md. 205 , 703 A.2d 147 (1997), the State maintains that Wilder’s sufficiency contentions have not been preserved because the arguments he raises on appeal differ from those raised before the trial court. A criminal defendant “is not entitled to appellate review of reasons stated for the first time on appeal.” Starr v. State, 405 Md. 293, 302 , 951 A.2d 87 (2008).

Thus, Wilder’s appellate contention, that the evidence does not establish his participation in the shootings, has not been preserved for our review. Assuming that the sufficiency issue has been preserved, see generally Bible v. State, 411 Md. 138 , 982 A.2d 348 (2009), we conclude that the evidence of Wilder’s involvement was sufficient to sustain his convictions for assault and reckless endangerment. Even discounting the erroneously admitted cell site evidence that, as will be discussed below, should have been presented through expert testimony, the circumstantial case against Wilder is compelling. Maryland “has long held that there is no difference between direct and ³³⁷ circumstantial evidence.” Hebron v. State, 331 Md. 219, 226 , 627 A.2d 1029 (1993).

Most certainly, a jury may not return a guilty verdict “on proof amounting only to strong suspicion or mere probability.” White v. State, 363 Md. 150, 163 , 767 A.2d 855 (2001). Yet in this case, the jury heard testimony from witnesses who saw Wilder’s Volvo drive from the scene immediately after the shooting; that Wilder had a verbal altercation with Jones and a hostile confrontation with Robert Williams III on the afternoon of the day before the shootings; and that Wilder had previously threatened to come to the Williams house with a weapon. 7 Taken together, this evidence is sufficient to sustain the jury’s finding of criminal agency, and the trial court did not err in denying the defense motions for judgments of acquittal on the assault and reckless endangerment counts. As to the handgun conviction, Wilder asserts that the evidence is insufficient to establish that a firearm, meeting the statutory definition of “handgun,” was employed to fire at the Williams residence. 8 It is well-established that “evidence ³³⁸ to support a conviction for a handgun crime is insufficient unless a jury can find beyond a reasonable doubt that the weapon used met the statutory definition of ‘handgun.’ ” Brown v. State, 182 Md.App. 138, 166 , 957 A.2d 654 (2008) (citations omitted). Noting that a handgun was not recovered in this case, we emphasize that “tangible evidence in the form of the weapon is not necessary to sustain a conviction; the weapon’s identity as a handgun can be established by testimony or by inference.” Id.

In the case before us, however, we must determine whether ballistics evidence, absent more, is sufficient to permit a reasonable juror to infer that a statutory “handgun” was used by the assailant. On this record, we conclude that the evidence does not carry the State’s burden of proof on the issue of whether the firearm used in the shootings qualifies as a statutory “handgun.” The State also points out that witnesses heard gunshots, and claims that “the evidence supported the inference that the firearm used was such that it could be readily concealed, [because] Wilder was able to depart the scene immediately after the shooting occurred without disclosing the firearm’s presence.” We are not persuaded by the State’s arguments. The fact that witnesses heard gunshots does not tend to identify that the firearm was a handgun, but only that an “operable” firearm was employed. As to evidence of concealment, we note that the assailant drove away in darkness.

This fact, for example, does not rule out the use of a rifle. The State is left with the ballistics evidence. We have recognized that, “[u]nder appropriate circumstances ... ballistics evidence may give rise to ... an inference” that the weapon was a handgun. Brown, 182 Md.App. at 169 , 957 A.2d 654 .

But the ballistics evidence in the case before us leads only to speculation about whether the firearm used met the statutory definition of “handgun.” Hanna’s testimony on this point is revealing: ³³⁹ [PROSECUTOR]: Okay. Were you actually ever able to determine if this was a semi-automatic weapon or a revolver? A. The only indication I got back from our — I guess you’d call them, like, a firearms technician, the indication he gave me was, it was more than likely — and he wasn’t — he cannot give a certainty — that it was probably a 9 millimeter-type handgun, and a 9 millimeter’s only fired out of a semiautomatic gun. Again, the trier-of-fact cannot return a guilty verdict “on proof amounting only to strong suspicion or mere probability.” White v. State, 363 Md. at 163 , 767 A.2d 855 (2001).

In Brown , we iterated that the calibers of bullets found at the scene of a shooting “alone cannot support the inference that a handgun was used.” 182 Md.App. at 172 , 957 A.2d 654 . The technician’s statement to Hanna, that the provenance of the rounds that were recovered at the Williams house was “probably” a handgun, does not exclude the fact that the bullets may have been fired by a rifle. The “prosecution’s burden of proof is more than possibly, probably, or likely — it is beyond a reasonable doubt.” United States v. Kellam, 568 F.3d 125, 145 (4th Cir.), cert. denied sub nom. Michel v. United States, 558 U.S.-, 130 S.Ct. 657 ,-L.Ed.2d-(2009).

We therefore reverse Wilder’s conviction for use of a handgun in the commission of a crime of violence. 2. Evidence of Prior Bad Acts Wilder asserts that the trial court abused its discretion by permitting the State to present testimony that Wilder had threatened to come to the Williams house with a weapon. He argues that this evidence of “bad” conduct was “highly prejudicial” and that it would serve “solely to convince the jury that [Wilder] had a criminal propensity.” In a related argument, Wilder contends that the trial court abused its discretion by refusing to declare a mistrial after Ursula Williams referred to an instance in which Lavivian Jones had been “beaten” by Wilder. We are not persuaded. ³⁴⁰ The State moved, pre-trial, in limine for the admission of evidence that “on July 3rd of 2007 [Wilder] made statements to the homeowner that he planned to bring a gun to the location and start shooting.” The trial court ruled that the State could present this testimony.

During his testimony, Williams recalled that Wilder threatened to come to the house with a weapon: [PROSECUTOR]: ... Describe the circumstances under which you had a phone conversation with the defendant. [WILLIAMS]: My wife called me ... and told me that he had called her and told her he was cornin’ to our house with a gun. I called him and asked what was goiri on. He said that Vivian disrespected him for the last time and that he was comin out to our house with a gun.

And I told him, no, you don’t want to bring that to my house. He says, yeah, he’s cornin’. He said, Mr. Rob, I’m cornin’ up. And I said, no, you don’t want to come out.

Little Rob [Williams III] don’t own that house. Lavivian don’t own that house. This is my and Miss Ursula’s house, so you have no right to bring anything to my house like that. He said, no, I’m comin.

He said, whoever come out, Little Rob, whoever, they goin’ down. He said, only way that won’t happen, if you put your niece [Jones] out. And I told him, you don’t tell me who to put in my house and who to let out of my house. So I told him, if you comin,’ I’ll meet him.

And I was there waitin’ on him. A bench conference ensued, and defense counsel voiced his objection: ³⁴¹ [DEFENSE COUNSEL]: Your Honor, same objection I put on before during the pretrial motions. This testimony is beyond highly inflammatory. It’s so prejudicial.

It has no probative value whatsoever. It’s not going to an ID. It’s going just to inflame the jury. He’s talking about a conversation ... three weeks earlier.

Nothing was acted upon at that point. The State’s using this solely to show the jury — I mean, it’s clearly gonna prejudice them against my client. I don’t think I can say anything more clearly than that, Your Honor. The prosecutor responded: [PROSECUTOR]: It is permitted for the State to use under the Faulkner case, as I argued in my motion.

I haven’t gotten to it yet, but there will be testimony that the police were called and did make a report in connection with the incident, which means that there is clear and convincing evidence that the conversation actually took place ... and it goes to an essential element of the State’s case establishing the identity of the person who shot the home. And then we have the defendant making a statement of intent to shoot the home and bring a gun there. It is extremely probative, Your Honor. The trial court overruled the defense objection.

After hearing Wilder’s threat, Williams instructed his wife to contact the police, and a cruiser responded. Shortly after Williams returned home, Wilder drove by Williams’s house in the brown Volvo station wagon. Wilder made a U-turn before arriving at the house “because [according to Williams] I guess he saw the police sittin’ there in the circle.” The second ruling of which Wilder complains involves the trial court’s refusal to declare a mistrial after Mrs. Williams, in describing the stormy relationship between Jones and Wilder, referred to instances when Jones was “beaten.” The court sustained counsel’s objection to this testimony, but de ³⁴² nied counsel’s motion for a mistrial after offering to strike the offending testimony. This issue arose during the direct examination of Ursula Williams: [PROSECUTOR]: And you stated that the defendant was not welcome in your home because of incidents with or between him and Lavivian.

A. Yes. Q. And what do you mean by that? A. Lavivian, she and Aubrey had gone together, but it’s like Vivian always got hurt or somethin’ when she’s with Aubrey, you know. So my husband just — you know, we don’t believe in that.

Q. What do you mean, hurt? A. Hit on, beaten. [DEFENSE COUNSEL]: Objection. THE COURT: All right, the objection’s sustained. * ❖ * [DEFENSE COUNSEL]: Your Honor, I’d like to actually make a motion for a mistrial at this time. The witness testified to prior beatings.

We’ve never heard any of this before. She put that before the jury, that he beat her. THE COURT: Well, the first question, she said that Lavivian got hurt when she was with the defendant. There had been no objection, no motion. [DEFENSE COUNSEL]: Well, I didn’t think we were getting into physical beatings.

And then that’s where the witness goes, into physical beatings. Now they’re painting him as a person who beats a woman. I mean, how much more could be put before the jury, Your Honor? THE COURT: Well, I can ask that — I can advise the jury that that answer is stricken. [DEFENSE COUNSEL]: But it’s still out there, Your Honor. ³⁴³ Wilder’s argument implicates the application of the “propensity rule” set forth in Md. Rule 5-404(b), which provides: (b) Other crimes, wrongs, or acts.

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, common scheme or plan, knowledge, identity, or absence of mistake or accident. Md. Rule 5 — 404(b). This Rule and “the common law preclude the admission of other crimes [or other acts] evidence, unless the evidence fits within a narrowly circumscribed exception.” Carter v. State, 366 Md. 574, 583 , 785 A.2d 348 (2001).

In addition, Md. Rule 5-403 requires the exclusion of relevant evidence if its admission proves to be unfairly prejudicial. The propensity rule is a rule of exclusion. See Wynn v. State, 351 Md. 307, 312 , 718 A.2d 588 (1998); Harris v. State, 324 Md. 490, 500 , 597 A.2d 956 (1991). “Evidence of prior criminal acts is not admissible to prove the guilt of the defendant.” Carter, 366 Md. at 583 , 785 A.2d 348 . The ordinary prohibition against the admission of “other crimes” evidence “ensure[s] that a defendant is tried for the crime for which he or she is on trial and to prevent a conviction based on reputation or propensity to commit crimes, rather than on the facts of the present case.” Sessoms v. State, 357 Md. 274, 281 , 744 A.2d 9 (2000).

In order for other crimes evidence to be admissible, it must pass a three-step test: First, the evidence must be ‘“relevant to the offense charged on some basis other than mere propensity to commit crime.’ ” ... Second, there must be “clear and convincing evidence that the defendant participated in the alleged acts.” ... Finally, “the court must determine that the probative value of the evidence substantially outweighs its potential for unfair prejudice.” ³⁴⁴ Skrivanek v. State, 356 Md. 270, 291 , 739 A.2d 12 (1999) (citations omitted). The Court has emphasized the need for those “substantive and procedural protections ... to guard against the potential misuse of other crimes or bad acts evidence[.]” Streater v. State, 352 Md. 800, 807 , 724 A.2d 111 (1999).

See also State v. Faulkner, 314 Md. 630, 634 , 552 A.2d 896 (1989). This analysis extends to “bad acts” that “tend[ ] to impugn or reflect adversely upon [a defendant’s] character!)]” See Klauenberg v. State, 355 Md. 528, 549 , 735 A.2d 1061 (1999). We discern no error in the trial court’s allowance of testimony about Wilder’s threat to come to the Williams house. Testimony that Wilder had earlier threatened to come to the house with a weapon has special relevance to establishing the identity of the shooter in this case, and it is also relevant to Wilder’s motive for revenge against Jones and Robert.

Moreover, the State established the existence of the threats by clear and convincing evidence, based on testimony from both Mr. and Mrs. Williams. Finally, we see no abuse of discretion in the determination that the probative value of this evidence outweighed potential prejudice. Although the trial court did not articulate the basis for its ruling, it overruled defense counsel’s objection only after an extensive argument by the State in favor of admissibility. We presume that the trial judge knew the law and properly applied it in overruling the defense objection to Robert’s testimony.

See State v. Chaney, 375 Md. 168, 179-80 , 825 A.2d 452 (2003) (judges presumed to know the law and apply it properly). We turn, then, to Mrs. Williams’s reference to the beating of Jones, and Wilder’s challenge to the trial court’s denial of his motion for a mistrial. The court offered to strike the testimony, but counsel declined, stating that “it’s still out there, Your Honor.” In Hubbard v. State, 395 Md. 73 , 909 A.2d 270 (2006), the issue was whether the trial court erred by declaring a mistrial after the prosecution called a witness, whose testimony against one co-defendant had been suppressed, to identify the other defendant. The trial court ³⁴⁵ explained that its action was justified by manifest necessity.

Hubbard, 395 Md. at 87 , 909 A.2d 270 . The Court of Appeals disagreed that the trial court was required by manifest necessity to grant a mistrial, because there were reasonable alternatives to that action. Relevant to the case before us, the Court stated: Other jurisdictions have considered the exclusion of testimony as a reasonable alternative to declaring a mistrial. In State v. Dodge, 564 P.2d 312 (Utah 1977), the Supreme Court of Utah considered whether the trial judge’s denial of defendant’s motion for a mistrial was proper.

The court held that the trial judge correctly declined to grant a mistrial, stating: “The trial court had other alternatives to the mistrial the appellant requested. A motion to strike or exclude the violating witnesses testimony could have been made.” Id. at 313 (also noting that defendants should avail themselves of “less drastic means” to limit possible prejudice before moving for a mistrial). Hubbard, 395 Md. at 94 , 909 A.2d 270 . Certainly, “ ‘it is unrealistic to expect jurors to ignore seemingly relevant evidence which they have already heard.’ ” Id.

(quoting McKnight v. State, 280 Md. 604, 615 , 375 A.2d 551 (1977)). But, we are unable to conclude that the trial court abused its discretion by refusing to declare a mistrial when counsel declined the court’s offer to strike the testimony. See also Mack v. State, 300 Md. 583, 603 , 479 A.2d 1344 (1984) (“[IJf a question is answered and subsequently an objection is made and erroneously sustained, the erroneous ruling is nonprejudicial in the absence of a motion to strike”), overruled on other grounds, Price v. State, 405 Md. 10 , 949 A.2d 619 (2008). We note that the “ ‘declaration of a mistrial is an extraordinary act which should only be granted if necessary to serve the ends of justice.’ ” Cooley v. State, 385 Md. 165, 173 , 867 A.2d 1065 (2005)(citation omitted).

On these facts, we find no abuse of discretion in denial of the motion for mistrial. Notwithstanding our conclusion, Wilder has waived any challenge to this testimony, because there was no objec ³⁴⁶ tion when Robert testified that he had seen “altercations” between Wilder and Jones. Further, when Robert was asked on cross-examination whether he was angry with Wilder, he responded, without objection: A. No. Actually, I won’t even say angry. It’s not really angry.

You know what I’m sayin’? And for anybody in my family to be, you know, gettin’ abused or beat on or somethin’ like that, that’s somethin’ anybody be mad about. [DEFENSE COUNSEL]: So you protect your family? A. Yeah. Of course.

In Williams v. State, 131 Md.App. 1, 26 , 748 A.2d 1 , cert. denied, 359 Md. 335 , 753 A.2d 1032 (2000), this Court noted that “[w]hen evidence is received without objection, a defendant may not complain about the same evidence coming in on another occasion even over a then timely objection.” The jury thus heard additional testimony from Robert on cross-examination to the effect that there was prior physical abuse. To conclude, we hold that testimony about Wilder’s threat to come to the Williams house early in July is especially relevant to the issues of identity and motive. We also conclude that the State proved Wilder’s earlier acts by clear and convincing evidence, and that the trial court did not abuse its discretion by implicitly finding that the probative value of this testimony outweighed its prejudicial effect. 9 Fi ³⁴⁷ nally, we see no abuse of discretion by the trial court in denying the defense motion for a mistrial. 3. Lay Opinion Testimony Detective Hanna testified that he utilized cellular telephone tracking to determine that Wilder was in the vicinity of the Williams home at the time of the shooting.

Wilder challenges the admission of that testimony. 10 Wilder does not question the reliability of the science at issue, see Reed v. State, 283 Md. 374 , 391 A.2d 364 (1978), but asserts that such location evidence, and the explanation and interpretation of the cell phone records, requires the presentation of expert testimony. 11 ³⁴⁸ The State responds that this issue has been waived because Wilder’s argument on appeal differs from that presented to the trial court. We are satisfied that this issue has been preserved. At the beginning of the trial, the defense moved in limine to exclude testimony about how the police managed to track Wilder’s movements, at or near the time of the shootings, by the use of cellular telephone records. Counsel explained the basis for his objection: [DEFENSE COUNSEL]: Yes, Your Honor.

And the second motion is — and I believe the State has an extremely large exhibit to the right, Your Honor, which is a map. What the officers did in this ease is, after the alleged shooting took place,— THE COURT: What is the nature of the motion? [DEFENSE COUNSEL]: Oh, I apologize, Your Honor. A motion to — I guess for the State to call an expert witness instead of put the evidence in through a detective. I don’t know how you would phrase that though, Your Honor.

THE COURT: Well, therein may lie the problem. You’re objecting to— [DEFENSE COUNSEL]: I’m — I believe the State is gonna try to put phone records in through a detective where I believe they need to put it in through an expert witness. THE COURT: Well, a detective can be an expert. [DEFENSE COUNSEL]: I don’t— THE COURT: I don’t know. I think you need to refine what this argument is just a bit more. ³⁴⁹ [DEFENSE COUNSEL]: As I was saying, Your Honor, after the alleged shooting takes place— THE COURT: I guess I need to know the nature of the relief that you seek.

Then I’ll hear all the facts and legal argument you want. [DEFENSE COUNSEL]: Well, I — they tracked the phone, Your Honor. That’s what I’m alleging. They call Nextel and they say to Nextel, where is this phone? And the Nextel— THE COURT: Is it a motion about Nextel? [DEFENSE COUNSEL]: I guess it’s a motion in limine to preclude this officer from testifying to what Nextel told him, I guess would be the best way to say it, Your Honor.

THE COURT: All right. To preclude a detective from testifying as to some hearsay from— [DEFENSE COUNSEL]: Yes. THE COURT: — Nextel. All right.

Go ahead. You may— [DEFENSE COUNSEL]: Thank you. THE COURT: — continue. [DEFENSE COUNSEL]: After the shooting takes place at 4:46 a.m., Your Honor, the detectives develop my client as a possible suspect, and they get his cell phone number and they start tracking it from that time until when he’s arrested at 12 p.m. the next day. And the State has a map that shows all the locations that his cell phone was, as they say, pinging off of or bouncing off of.

This is information that — my understanding on how it’s done is, the detective will contact an organization in the— maybe the Baltimore City or Baltimore County Police Department called TARU, which is — what they do is, they do cell phone tracking, they do the wiretaps, stuff like that. They call Nextel. Nextel says the phone — they’ll ping it. They’ll find out where it’s hitting off of, what tower, and then they’ll call back and say, it’s hitting off of tower location blah, blah, blah, whatever the location of the tower ³⁵⁰ is, and the detective can follow the towers to eventually find the person.

And I believe that’s what happened here, Your Honor. I would state that the information relayed to the detective is hearsay, Your Honor, — or the detective relaying it to this Court would be hearsay. There would need to be someone from Nextel who did this tracking to testify to that. Also, Your Honor, the detectives then at that point do what’s called a historical cell phone analysis.

They ask Nextel for all prior to this incidences, I think some time before, to find out exactly where my client was prior to this location, and Nextel passes over that information. And, again, the same sort of testimony will be given, a detective testifying, information given to him by someone else, and then he’s gonna testify. What my main worry is, Your Honor, is that a detective’s gonna take the stand and state, at 4:47 a.m., Mr. Wilder’s phone was hitting off of this tower in the general location of where the shooting took place. On cross examination I’m not gonna be able to get into anything ‘cause he’s not an expert on this.

He’s gonna testify to what the tower information is, and I think it needs to come in through an expert who can testify to where the towers are located, how close the towers are, how a phone pings off a certain tower compared to one two miles away, all this information that would come out, and I don’t think a detective — unless [the prosecutor] says this detective has that kind of expertise, and I don’t think he does. It’s twofold: The hearsay aspect of it; and I think this needs to come in through an expert witness, even the Baltimore County Police Department, or someone from Nextel. THE COURT: All right. [Prosecutor]? [PROSECUTOR]: Thank you, Your Honor. Respectfully, Detective Hanna is not going to— ³⁵¹ He is not going to render any opinion