Williams v. State

WATTS, J. Following a trial held from April 19, 2010, through April 20, 2010, in the Circuit Court for Montgomery County, a jury convicted Gregory Williams, appellant, of possession of cocaine, and fleeing and eluding. See Md.Code § 5-601 of the Criminal Law Article (“C.L.”) (possessing or administering controlled dangerous substance); Md.Code § 21-904(c) of the Transportation Article (“T.A.”) (fleeing on foot). On May 18, 2010, the circuit court imposed a sentence of four years’ incarceration, with all but eighteen months suspended and three years’ supervised probation as to possession of cocaine, and one year concurrent as to fleeing and eluding. On June 9, 2010, appellant noted this timely appeal and set forth the following issues, which we quote: I. Under the facts and theory of this case, did the trial court err in determining that possession of a controlled dangerous substance is a lesser included offense of distribution of a controlled dangerous substance and so instructing the jury?

II

Did the trial court err by deciding, on its own initiative, without request by either party, to instruct the jury on a lesser included offense of possession of a controlled dangerous substance?

III

Did the trial court err in its instruction to the jury on fleeing and eluding by including incorrect captions as an element of the offense and determining that the statutory requirement of “a vehicle appropriately marked as an official police vehicle” is not an element of the offense?

IV

Was the evidence insufficient to sustain a conviction for fleeing and eluding in violation of section 21-904(c) of the Transportation Article? For the reasons set out below, we answer Questions I and II in the negative and therefore shall affirm the judgment of the circuit court as to appellant’s conviction for possession of cocaine, in violation of C.L. § 5-601. We answer Question IV in the affirmative and shall reverse the judgment of the circuit ⁷⁸ court as to appellant’s conviction for fleeing and eluding, in violation of T.A. § 21-904(c). We need not address Question III.

FACTUAL AND PROCEDURAL BACKGROUND We draw the following pertinent facts from the evidence adduced at trial. Police Officer Britta Thomas of the Montgomery County Police Department testified that on November 25, 2009, she was conducting surveillance of a Shell gas station opposite the Montgomery Mall in Bethesda, Maryland. At approximately 11:30 p.m., Officer Thomas noticed a white Jeep, with two occupants, in the gas station parking lot, near the convenience store. Officer Thomas testified that she observed the Jeep for about five minutes, before the driver of the Jeep exited the vehicle and entered the store.

The driver of the Jeep was subsequently identified as Ricky Mendez (“Mendez”). As Mendez exited the convenience store, appellant approached him. According to Officer Thomas, appellant and Mendez had a brief conversation outside the store and walked together toward a silver sedan, subsequently identified as appellant’s vehicle. Officer Thomas observed Mendez enter the right rear passenger seat of the vehicle.

As a witness for the State, Mendez testified that he had arranged to meet appellant, known to him as “Mean,” at the Shell gas station to buy cocaine from him, in exchange for $200.00. Mendez testified that when he approached appellant’s vehicle, appellant informed him that the “stuff is back there” and instructed him to enter the back seat of the vehicle. According to Mendez, there was another person in the front passenger seat of appellant’s car, but he did not speak with this person nor see his face. This person was subsequently identified as appellant’s friend, John Sullivan (“Sullivan”).

Mendez entered the back seat of the car and saw a baggy of white powder wrapped in a paper towel on the seat. Upon seeing the baggy of white powder Mendez “dropped it” in his ⁷⁹ hand and, in exchange, placed $200.00 on the back seat of the car. Appellant then entered the driver’s seat of the car, drove around the station and dropped Mendez off near his Jeep. Mendez immediately exited the gas station in his vehicle.

At trial, Mendez testified that he knew the person who sold the drugs to him only as “Mean” and indicated that he did not see “Mean” in the courtroom. Sergeant William Hill of the Montgomery County Police Department testified that on November 25, 2009, he too was conducting surveillance of the Shell station in plain clothes, in an unmarked car. Sergeant Hill observed appellant’s vehicle “lap through slowly around” the gas station before exiting the gas station at a high rate of speed. Sergeant Hill followed appellant’s vehicle onto 1-270 and observed the vehicle accelerate to speeds of 70 or 75 miles per hour.

Sergeant Hill initiated a traffic stop of the vehicle by turning on the police siren and flashing red and blue lights on the windshield visor of his vehicle. Sergeant Hill testified that appellant’s vehicle momentarily moved toward the shoulder of the road, then moved back into the travel lane and accelerated to speeds of over 110 miles per hour. Sergeant Hill testified that appellant’s vehicle came to a stop after colliding into a curb off the exit ramp for Shady Grove Road, and the vehicle slid into the grass. At this point, both the driver and the passenger of the vehicle exited the vehicle and ran toward the woods.

Sergeant Hill gave chase on foot. Sergeant Hill testified that the passenger, Sullivan, tripped attempting to jump over a guardrail, at which point, Sergeant Hill drew his gun, ordered Sullivan to put his hands behind his back and placed him under arrest. Appellant had run about fifty feet ahead, into the woods, so Sergeant Hill called a canine unit and other officers to establish a perimeter. Police Officer Sharon Sparks of the Montgomery County Police Department answered Sergeant Hill’s call and arrived at the scene with her canine partner, Ben.

Officer Sparks testified that upon being given a command to track for scent, ⁸⁰ Ben led her over the guardrail, and through the woods to a location where appellant was lying face down, attempting to hide. Officer Sparks ordered appellant to show his hands and threatened to release Ben, at which point, appellant cooperated and was placed under arrest. Upon a search of appellant, Sergeant Hill found no drugs but found $200.00 in cash in appellant’s pants pocket. Sullivan, the passenger in appellant’s car, testified as a defense witness.

Sullivan testified that appellant picked him up from his home on November 25, 2009, at about 9:30 p.m., to go to a Holiday Inn. Sullivan testified that he and appellant had several drinks at the bar of the Holiday Inn and that appellant wanted to leave the bar “to get high.” Appellant and Sullivan left for the Shell gas station near Montgomery Mall to meet Ricky Mendez. Sullivan testified that he was in the front passenger seat when Mendez entered the back seat of appellant’s sedan. Sullivan testified that Mendez was behind him and he did not have an opportunity to further observe Mendez.

When asked on direct examination what observations he made of appellant at the time, Sullivan testified: [SULLIVAN]: I noticed [appellant], it looked like he had something in his hand and he was looking at it. And I just noticed that he said it’s a bad product. [APPELLANT’S COUNSEL]: I’m sorry, it’s bad product? [SULLIVAN]: Bad product, yes. [APPELLANT’S COUNSEL]: And based on that, what if anything did you observe [appellant] do? [SULLIVAN]: Well, he turned the car on, put it in reverse, went on the other side of the Shell gas station, and let Mendez out. Sullivan testified that he did not observe any money change hands between appellant and Mendez. Sullivan testified it was his understanding that after appellant let Mendez out of the car, he and appellant were traveling up 1-270 to locate a different source for the purchase of cocaine. ⁸¹ After Sullivan’s testimony, during a bench conference with counsel, the trial court informed counsel of the court’s intention to instruct the jury on the lesser included charge of possession of cocaine. 1 At the close of all evidence in the case, during another bench conference with counsel, the trial court again advised counsel of his intent to instruct the jury on the lesser included offense of possession of cocaine: THE COURT: I told you about the lesser included, which I’ve determined to include and will.

The question I have, did he give a statement? [PROSECUTOR]: But Your Honor, the State would agree that the possession charge would be appropriate if at least what his intent was to possess cocaine according to the defense argument. [APPELLANT’S COUNSEL]: And he did possess it for a period of time. THE COURT: One person at a time. [APPELLANT’S COUNSEL]: I’m sorry. [PROSECUTOR]: His own witness testified that in his opinion, [appellant] was holding that cocaine with the intent to keep it, to purchase it, and that he was in possession of the cocaine at that time. [APPELLANT’S COUNSEL]: Under that theory, certainly — I’m sorry. [PROSECUTOR]: I’m sorry. It certainly was in his vehicle. So he had the possession.

For all intents and purposes— THE COURT: I’m going to give it. [APPELLANT’S COUNSEL]: May I just say that I think that is a lesser included, but that would be a separate charge and for a properly worded lesser included, you have ⁸² to first find possession of cocaine and then the intent to distribute. And I don’t want to confuse the jury. If we’re going to include all the different theories by which you can distribute, I don’t want a transfer or exchange theory to be promulgated. I don’t want him to go down on distribution because of this— THE COURT: Well, the question is did he have cocaine?

If the jury answers that yes, he’s in possession. Then they answer the next question. So— Prior to closing argument, along with other instructions, the trial court instructed the jury as follows on possession of controlled dangerous substance: The defendant is charged with the crime of possession of cocaine, which is a controlled dangerous substance. It is unlawful for any person to possess any controlled dangerous substance unless such substance was obtained pursuant to a valid prescription or order from a physician, dentist, veterinarian, scientific investigator, or other person licensed, registered or otherwise permitted to distribute, dispense, administer or conduct research on a controlled dangerous substance, while the person was acting, of course, in the course of his professional practice.

In order to convict the defendant of possession of a controlled dangerous substance, the State must prove— number one, that the defendant knowingly possessed the substance; number two, that the defendant knew the general character or elicit nature of the substance; and number three, that the substance was cocaine. In other words, all three elements must be proven. Possession means having control over a thing, whether actual or indirect. The defendant does not have to be the only person in possession of the substance.

More than one person may have possession of the substance at the same time. A person not in actual possession who knowingly has both the power and the intent to exercise control over a thing, either personally or through another person, has indirect possession. ⁸³ In determining whether the defendant had indirect possession of the substance, consider all of the surrounding circumstances. These circumstances include the distance between the defendant and the substance, whether the defendant had some ownership or possessory interest in the place or automobile where the substance was found, and any indications that the defendant was participating with others in the mutual use and enjoyment of the substance. The court instructed the jury on the fleeing and eluding offenses as follows: In this case, defendant is charged with the crime of fleeing and eluding on foot.

Well, let me say there are two theories and two counts that will be on the verdict sheet, and they are slightly different from one another. And I’m going to give you two sets of instructions that are slightly different from each other to get you through understanding the fleeing — there are two fleeing and eluding charges. So one is by foot and one is by automobile. Defendant is charged with the crime of fleeing and eluding on foot.

In order to convict defendant, the State must prove, number one, that the defendant was driving or had been — and I think you can infer — or had been driving a vehicle; that the police gave an audio or visual signal to stop, and that the police officer was in a vehicle appropriately marked as a police vehicle and that the police officer gave an audio or visual signal to stop; or defendant willfully failed to stop the vehicle or fled on foot or eluded the officer by any other means. Visual or audible signal includes a signal by hand, voice, emergency light or siren. Now, the statute involved here comes from the transportation article which enforces the conduct with the use of automobiles. So you have to take this in the context of the use of an automobile, but that at some point after giving of a signal, that the defendant attempted or did flee by foot.

Now, that’s contrasted to the next, that defendant is charged with the crime of fleeing and eluding by failing to stop a vehicle. In order to convict defendant, the State must prove one, that the defendant was driving a vehicle; ⁸⁴ that the police gave and [sic] audio or visual signal to stop; and three, that the police officer was in uniform. Note, that’s not part of the other instruction. When it comes to an automobile, the officer has to be in uniform.

And four, that the police officer was prominently displaying his badge or other insignia of office and that five, the police officer in uniform, while prominently displaying his badge or other insignia, gave an audio or visual signal to stop defendant, who willfully failed to stop his vehicle or fled on foot or eluded the officer by other means. Very confusing, but that’s the way it’s written. That’s how the statute is written. So to clarify, there is a charge of fleeing on foot.

It does not require that the police officer who gave the signal to be [sic] in uniform. And then there is a failure to stop the motor vehicle, and that does require that the officer be in uniform, along with the other elements. During deliberations, the jury delivered a note to the trial court, which read: “If he intends to purchase cocaine and has the money to do so, does that constitute indirect possession even if he does not go through with the purchase?” After consulting with counsel, as to how to respond, the trial court responded with a note, which read: “As you have identified in your question, a person possessing the intent to buy a controlled dangerous substance and who also possesses the money to accomplish a purchase, does not have indirect possession of the illicit drugs.” Appellant’s counsel agreed with the court’s response, stating that the court’s response was acceptable to the defense. Upon receipt of the trial court’s response, the jury forwarded another note, which read: “Please reconcile your instruction (as marked) with your response.” After consulting with counsel the circuit court replied with a note, which read: “The Court declines to further define or reconcile the Court’s instructions.” When asked her position as to the court’s response, appellant’s counsel neither objected to nor agreed with the court’s proposed response, but stated: ⁸⁵ [APPELLANT’S COUNSEL]: Possession is the exercise of actual or constructive dominion or control over a thing by one or more persons.

It requires both a restraining or directing influence over the thing allegedly possessed. So if what they’re intimating — if we want to give them — if you want to instruct them any further on that specific point, I can say as an attorney it would be helpful to me to understand it in that sense, that you have to be able to have some restraining or directing influence over it and that is the dominion or control over the thing by one or more persons. DISCUSSION I. Appellant argues that the circuit court erred in instructing the jury on possession of cocaine as a lesser included charge of distribution of cocaine because “under the facts of this case” possession of cocaine is not a lesser included offense of distribution. Appellant maintains that, in this case, the jury’s obligation was to determine whether appellant was a seller or buyer of cocaine, and that possession is not a lesser included offense of distribution as appellant was only a potential buyer.

Relying on the jury notes, appellant contends that the jury rejected the State’s theory of the case that appellant sold cocaine to Mendez and convicted based on information as to appellant’s desire to purchase cocaine. Appellant also contends that inclusion of the possession charge after the close of the evidence was prejudicial as he was deprived of fair notice of the offense. The State contends that appellant failed to preserve an objection to the circuit court instructing the jury on the lesser included offense of possession of cocaine. The State maintains that appellant objected “only to the framing of the presented instructions,” rather than to the circuit court’s giving the instruction to the jury.

The State contends that the issue “may not” be preserved for appeal. The State argues that, if preserved, appellant’s complaint is without merit. Relying on Skrivanek v. State, 356 Md. 270, ⁸⁶ 281 , 739 A.2d 12 (1999), the State points out that “[t]he Court of Appeals ‘has held, consistent with virtually every jurisdiction in the United States which has passed upon the issue, that a defendant, charged with a greater offense, can be convicted of an uncharged lesser included offense.’” Relying on Hankins v. State, 80 Md.App. 647, 659 , 565 A.2d 686 (1989), the State argues that under the “elements test,” “[possession is without question a lesser-included offense of the crime of distribution.” Relying on Smith v. State, 412 Md. 150 , 985 A.2d 1204 (2009), the State maintains that appellant “was properly on notice of the fact that a lesser included offense was being considered and had the opportunity to make whatever argument he wished regarding the lesser charge.” It is well settled that a defendant charged "with a greater offense can be convicted of an uncharged lesser included offense. Skrivanek, 356 Md. at 281 , 739 A.2d 12 ; Hagans v. State, 316 Md. 429, 447 , 559 A.2d 792 (1989).

In Hagans , the Court of Appeals explained that: The principle that a defendant, charged with a greater offense, can be convicted of an uncharged lesser included offense, has been adopted by virtually every jurisdiction in the United States which has passed upon the issue. Today, in many jurisdictions the doctrine has been codified either by statute or rule. 316 Md. at 447 , 559 A.2d 792 (citations omitted) (footnotes omitted). The Court, in Hagans , stated: Since the rule permitting a conviction on an uncharged lesser included offense was well-established at common law, it is accepted throughout the United States today, and generally promotes a just result in criminal cases, we shall adhere to it. 316 Md. at 448 , 559 A.2d 792 (footnote omitted). In Hagans , the Court held that although an uncharged lesser included offense is accepted throughout the United States today, at the same time, there are recognized limitations to which the court shall also adhere. 316 Md. at 448 , 559 A.2d 792 .

One ⁸⁷ limitation involves the definition of a lesser included offense. 2 Id. Maryland appellate courts have applied the “elements test” or “required evidence test” to determine the existence of a lesser included offense. Id. at 449 , 559 A.2d 792 . The Court, in Hagans , explained: Under the “required evidence” or “elements tests,” courts look at the elements of the two offenses in the abstract.

All of the elements of the lesser included offense must be included in the greater offense. Therefore, it must be impossible to commit the greater without also having committed the lesser. 316 Md. at 449 , 559 A.2d 792 . (citations omitted) (footnotes omitted). In Anderson v. State, 385 Md. 123, 132 , 867 A.2d 1040 (2005), the Court of Appeals unambiguously held possession of a controlled dangerous substance is a lesser included offense of distribution of a controlled dangerous substance.

Applying the “required evidence test,” the Court explained: In State v. Woodson, 338 Md. 322, 329 , 658 A.2d 272, 276 (1995), we reached the necessary conclusion that, because every element of the crime of possession is also an element of the crime of possession with intent to distribute and only the latter offense contains an element-intent to distribute-not contained in the former, the two offenses “are deemed the same offense for double jeopardy purposes.” In Hankins v. State, 80 Md.App. 647 , 565 A.2d 686 (1989), the Court of Special Appeals correctly concluded that the same result pertains with respect to possession and distribution. Id. In Anderson , the Court stated: Criminal Law Art. § 5-601(a)(l) makes it unlawful to possess a controlled dangerous substance. The word “possess” ⁸⁸ is defined in § 5-101(u) as to “exercise actual or constructive dominion or control over a thing by one or more persons.” Section 5-602(1) makes it unlawful to distribute a controlled dangerous substance.... ...

It is not possible, under these statutes, to “distribute” a controlled dangerous substance in violation of § 5-602 unless the distributor has actual or constructive possession (dominion or control) of the substance. Thus, possession of the substance distributed is necessarily an element of the distribution. The crime of distribution obviously contains an element not contained in the crime of possession — the distribution — but there is no element in the crime of possession not contained in the crime of distribution. Upon the same analysis used in Woodson , therefore, possession and distribution are the “same” offenses for double jeopardy purposes. 385 Md. at 132-33 , 867 A.2d 1040 .

As a threshold matter, prior to addressing the merits, we will examine whether appellant preserved for review the contention that the trial court erred in instructing the jury on the lesser included offense. The State contends that because appellant failed to explicitly articulate an objection to the instruction in its entirety but rather objected to the phrasing of the instruction, the issue is not preserved for review. At the conclusion of the trial court’s instructions to the jury, however, the trial court asked whether the parties were satisfied with the instructions and the following colloquy occurred: [APPELLANT’S COUNSEL]: Your Honor, with respect to the possession, we would again except to the distribution. It’s not — and under the State’s theory of the case, I don’t think that a lesser included simple possession is properly generated and I would also say that I think that — we take exception to the transfer and exchange language in that with the Court’s inclusion of the possession count, that it could lead to confusion in the jury as to what constitutes ⁸⁹ transfer or exchange and he could be inadvertently convicted on a distribution charge based on that.

THE COURT: Well, I’m satisfied it should be given as stated. I overruled the exception and I said I’d deny the motion and then I overruled the exception then and now. I believe that that’s a jury question for it to determine in accordance with whatever the evidence is. But you’re preserved.

Okay? In light of appellant’s counsel’s objection to the phrasing of the instruction and the exchange with the trial court in which the court indicated the issue would be preserved, we conclude that the issue is properly before us. With the issue properly before us, applying the case law discussed above, we conclude that the circuit court did not err in instructing the jury on the lesser included offense of possession of cocaine. Appellant’s contention that the trial court erred in instructing the jury on possession is based solely on the premise that notes from the jury demonstrate the jury convicted on testimony that appellant sought to purchase cocaine rather than on the State’s theory of distribution.

In appellant’s sight, the jury notes establish that the jury accepted the defense theory of the case. Appellant’s view is not consistent, however, with applicable case law on the sufficiency of evidence for giving an instruction to the jury or the sufficiency of evidence for conviction. As to jury instructions, in Cost v. State, 417 Md. 360, 369 , 10 A.3d 184 (2010) (citing Fleming v. State, 373 Md. 426, 433 , 818 A.2d 1117 (2003)), the Court of Appeals recently stated: On review, jury instructions [Mjust be read together, and if, taken as a whole, they correctly state the law, are not misleading, and cover adequately the issues raised by the evidence, the defendant has not been prejudiced and reversal is inappropriate. Reversal is not required where the jury instructions, taken as a whole, sufficiently protected] the defendant’s rights and adequately covered the theory of the defense. ⁹⁰ In this case, the trial court instructed the jury only as to the elements of the possession offense and refrained from making any references to either the State or the defense’s theory of the case.

In the absence of the jury notes, there would be no question as to the propriety of the trial court’s instruction on possession. At oral argument, appellant acknowledged that under the State’s theory of the case, possession is a lesser included offense of distribution. The jury instruction given in this case contained language nearly identical to Md. Criminal Jury Instruction § 7.45, entitled Possession (Actual and Constructive). As such, the trial court gave an objective instruction as to the possession offense, which correctly stated the law, and was not contingent on either version of the facts at hand.

Insofar as sufficiency of the evidence is concerned, in Hall v. State, 119 Md.App. 377, 392-93 , 705 A.2d 50 (1998), we explained: The standard for our review of the sufficiency of the evidence is whether, after reviewing 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. Weighing the credibility of witnesses and resolving any conflicts in the evidence are tasks proper for the fact-finder. In performing this fact-finding role, the jury has authority to decide which evidence to accept and which to reject. In this regard, it may believe part of a particular witness’s testimony, but disbelieve other parts of that witness’s testimony.

Circumstantial evidence is entirely sufficient to support a conviction, provided the circumstances support rational inferences from which the trier of fact could be convinced beyond a reasonable doubt of the guilt of the accused[.] The same standard applies to all criminal cases, including those resting upon circumstantial evidence, since, generally, proof of guilt based in whole or in part on circumstantial evidence is no different from proof of guilt based on direct eyewitness accounts. ⁹¹ (Citations omitted.) In Morgan v. State, 134 Md.App. 113, 126 , 759 A.2d 306 , cert. denied, 361 Md. 232 , 760 A.2d 1107 (2000), this Court held that an “appellate court does not inquire into and measure the weight of the evidence to ascertain whether the State has proved its case beyond a reasonable doubt, but merely ascertains whether there is any relevant evidence, properly before the jury, legally sufficient to sustain a conviction.” In this case, there was relevant evidence properly before the jury sufficient to sustain a conviction for possession of controlled dangerous substance. Mendez testified unambiguously that the person known as “Mean” directed him into the back of the sedan where a baggy of drugs awaited sale. 3 Defense witness Sullivan testified that, prior to letting Mendez out of the car, appellant held the bag of drugs but determined it to be “bad stuff.” Mendez, of course, testified that appellant sold the drugs to him in exchange for $200.00. Without doubt, through testimony, the State generated sufficient evidence to warrant giving the possession instruction and to support the conviction. Under the circumstances, the trial court did not err in instructing the jury on the lesser included offense of possession of cocaine.

As to notice, both parties were given an opportunity to present arguments regarding the possession offense to the jury and arguments to the trial court as to the propriety of giving the instruction. The offense of possession is not so far removed or remote from the offense of distribution of a controlled substance that conviction could not stand for lack of notice. Hagans, 316 Md. at 450 , 559 A.2d 792 (citing People v. Cooke, 186 Colo. 44 , 525 P.2d 426, 428-29 (1974)) (“While holding that a defendant charged with possession of a narcotic drug with intent to distribute may be convicted of simple possession, the Supreme Court of Colorado cautioned: ‘Mindful of the primacy of notice within the constitutional guarantee of due process of law and of the duty of the courts to safeguard this right, we hold only that, where, as here, the ⁹² lesser included offense upon which the prosecution requested an instruction is (1) easily ascertainable from the charging document, and (2) not so remote in degree from the offense charged that the prosecution’s request appears to be an attempt to salvage a conviction from a case which has proven to be weak, the prosecution may obtain a lesser included offense instruction over the defendant’s objection.’ ”). In Smith, 412 Md. at 173-74 , 985 A.2d 1204 , the Court of Appeals held that the introduction of a lesser included offense instruction is proper, so long as the instruction is introduced before closing arguments, where the parties have the opportunity to address the offense before the fact-finder. 4 Here, the trial judge notified counsel of his intent to give the possession instruction at the conclusion of Sullivan’s testimony, and again at the conclusion of all the evidence in the case.

The trial court instructed the jury on the lesser included offense of possession of cocaine before closing arguments, at which point, appellant had an opportunity, through his counsel, to address the charge in front of the jury. We perceive no error in the circuit court’s instruction to the jury on possession of cocaine.

II

Appellant argues that the circuit court erred by instructing the jury, on its own initiative, regarding possession ⁹³ of cocaine as a lesser included offense of distribution of cocaine. Appellant contends that by initiating discussion with counsel, concerning the giving of an instruction for a lesser included offense, “the trial court improperly inserted itself in the proceeding.” Relying on Skrivanek, 356 Md. 270 , 739 A.2d 12 , appellant argues that an “affirmative agreement” from one of the parties is required before the trial court may instruct the jury on a lesser included offense. Appellant asserts that neither party “affirmatively agreed” to the court’s instruction on possession of cocaine as a lesser included offense. Appellant argues that while the State ultimately “gave qualified acquiescence to inclusion of the charge, it was well after the court’s inclusion of the charge was a foregone conclusion.” In contrast, the State contends that it explicitly agreed to the instruction being given to the jury.

In Hagans , the Court recognized that there is disagreement among jurisdictions “as to whether the trial court should, sua sponte, give a jury instruction on an uncharged lesser included offense.” 316 Md. at 454 , 559 A.2d 792 . The Court pointed out that some courts uphold the trial court’s giving the instruction where it was neither requested nor supported by either side. Id. (citing U.S. v. Cooper, 812 F.2d 1283 (10th Cir.1987); People v. Wickersham, 32 Cal.3d 307 , 650 P.2d 311, 319 , 185 Cal.Rptr. 436 (1982); People v. Johnson, 409 Mich. 552 , 297 N.W.2d 115 (1980); State v. Pribil, 224 Neb. 28 , 395 N.W.2d 543 (1986); State v. Hicks, 241 N.C. 156 , 84 S.E.2d 545 (1954); State v. Cook, 319 N.W.2d 809 (S.D.1982)).

Other courts take the view that it is appropriate for the parties to decide whether the instruction is to be given. Id. (citing Walker v. United States, 418 F.2d 1116, 1119 (D.C.Cir.1969); People v. Sowinski, 148 Ill.App.3d 231, 247 , 101 Ill.Dec. 326, 335 , 498 N.E.2d 650, 659 (1986)). In Hagans , the Court held that: The better view, we believe, is that the trial court ordinarily should not give a jury an instruction on an uncharged lesser included offense where neither side requests or affirmatively agrees to such instruction.

It is a matter of prosecution ⁹⁴ and defense strategy which is best left to the parties. There is no requirement that the jury pass on each possible offense the defendant could have committed. We permit, for example, the State to nolle prosse an offense, and we allow plea bargains. When counsel for both sides consider it to be in the best interests of their clients not to have an instruction, the court should not override their judgment and instruct on the lesser included offense. 316 Md. at 455 , 559 A.2d 792 .

The issue was addressed squarely by the Court in Skriva-nek, 356 Md. 270 , 739 A.2d 12 . In Skrivanek , the defendant was charged with possession of a controlled dangerous substance, and possession of a controlled dangerous substance with the intent to distribute. 356 Md. at 277 , 739 A.2d 12 . The trial court explained to the prosecutor: “I think the State is going to have an awful tough time with this thing when you have a person almost in custody. However, you are probably entitled to a lesser included offense instruction.” Id. at 278 , 739 A.2d 12 .

The prosecutor replied: “With these cases I am not going to object to the [cjourt offering that to the jury” and “I would like to have the [c]ourt keep attempt alive.” Id. at 279 , 739 A.2d 12 (emphasis removed). The Court of Appeals held that, “[tjhe prosecutor not only stated that he was ‘not going to object to the [cjourt offering [the attempt theory] to the jury,’ but he also affirmatively said that he ‘would like to have the [cjourt keep attempt alive.’ ” Id. at 282 , 739 A.2d 12 . In Skrivanek , the Court explained: “Like the trial judge in Hagans , the trial judge in the present case initiated the discussion of the lesser included offense instruction.... A prosecutor may be said to ‘request or affirmatively agree to such an instruction’ even though the judge initially raises the possibility of giving the instruction.” 356 Md. at 282 , 739 A.2d 12 .

In Skrivanek , the Court stated: Here, the instructions given on the lesser included offenses supported the State’s stated strategy. The prosecutor’s adherence to the viability of the charges of actual possession did not reflect an “all or nothing” strategy in favor of those charges. Faced with the trial court’s view that the State’s ⁹⁵ case on the greater charged offenses was legally insufficient, and anticipating the grant of a motion for acquittal, the prosecutor enlarged his theory of the case and adopted a fall-back position. In other words, the State’s modified strategy included the alternative of a lesser included offense instruction.

Thus, the court’s submission of the attempt instruction to the jury cannot be viewed as a decision by the trial judge acting without the affirmative agreement of at least one party. 356 Md. at 283 , 739 A.2d 12 (emphasis in original). In this case, the record reflects, the State affirmatively agreed to, and indeed argued for, the possession of cocaine instruction. The State advised the circuit court that “the State would agree that the possession charge would be appropriate if at least what his intent was to possess cocaine according to the defense argument.” In addition to agreeing that the instruction was warranted, the State affirmatively argued for inclusion of the lesser included offense instruction on possession of cocaine. The State pointed out that defense witness, Sullivan, testified appellant held the cocaine and that the cocaine was in appellant’s vehicle.

Based on this evidence, the State argued that appellant “had the possession[,] [f]or all intents and purposes.” It is only “when counsel for both sides consider it to be in the best interests of their clients not to have an instruction” given that it is inappropriate for the circuit court to give an instruction on the lesser included offense. Hagans, 316 Md. at 455 , 559 A.2d 792 (emphasis added). In light of the affirmative agreement and argument of the State, the trial court did not err in instructing the jury on the lesser included offense instruction on possession of cocaine.

III

Appellant contends that evidence introduced at trial was not sufficient to sustain a conviction for fleeing and eluding, in violation of T.A. § 21-904(c). Appellant argues that T.A. § 21-904(c) prohibits fleeing and eluding a police officer, who “is in a vehicle appropriately marked as an official police ⁹⁶ vehicle,” and that the evidence introduced at trial established that the officer who pursued him was in an “unmarked” vehicle. Appellant maintains that the evidence “was insufficient as a factual and legal matter” to convict him of fleeing and eluding, in violation of T.A. § 21 — 904(c), because the legislature failed to provide a definition of the phrase “a vehicle appropriately marked as an official police vehicle.” The State responds that the evidence adduced at trial was sufficient for the jury to conclude that Sergeant Hill was “in a vehicle appropriately marked as an official police vehicle” because no definition of the phrase “vehicle appropriately marked as a police vehicle” is required as the words have common sense meanings. The State contends that Sergeant Hill’s initiation of the siren and red and blue lights on the windshield visor of the vehicle “provide[d] appropriate notice to [appellant] of the vehicle’s use by a police officer.” The State points out that the testimony of defense witness, Sullivan, confirmed the State’s contention that appellant knew he was being pursued by a police vehicle.

The State contends that whether Sergeant Hill was operating a “vehicle appropriately marked as an official police vehicle” was a factual determination for the jury. Maryland statute T.A. § 21-904(c) provides: (c) Fleeing on foot. — If a police officer gives a visual or audible signal to stop and the police officer, whether or not in uniform, is in a vehicle appropriately marked as an official police vehicle, a driver of a vehicle may not attempt to elude the police officer by: (1) Willfully failing to stop the driver’s vehicle; (2) Fleeing on foot; or (3) Any other means. (Emphasis added). When an issue on appeal involves an interpretation and application of Maryland statutory law, this Court must determine whether the trial court’s conclusions are legally correct under a de novo standard of review.

Schisler v. State, 394 Md. 519, 535 , 907 A.2d 175 (2006). In our view, with the argument that the legislature has not defined the phrase “appropriately marked as an official police ⁹⁷ vehicle,” appellant raises an issue of statutory interpretation. Maryland appellate courts have not yet commented on what constitutes a “vehicle appropriately marked as an official police vehicle” under T.A. § 21-904(c) or whether the existence of lights and sirens on a vehicle satisfies the definition of a vehicle so marked. Courts in other jurisdictions, interpreting similar statutes, have addressed the issue.

We shall discuss those authorities below. A. Other Jurisdictions (1) Washington In State v. Ritts, 94