source: Caselaw Access Project

author: Berger, J.

license: Public Domain

text:
    168 A.3d 986
    William Louis KRANZ v. STATE of Maryland
    No. 785,
    Sept. Term, 2013
    Court of Special Appeals of Maryland.
    August 30, 2017

      Submitted by: Piedad Gomez (Paul B. DeWolfe, Public Defender, on the brief), Baltimore, MD, for Appellant.
    Submitted by: Ryan R. Dietrich (Brian E. Frosh, Atty. Gen., on the brief), Baltimore, MD, for Appellee.
    Panel: Woodward, C.J., Graeff, Berger, JJ.
   Berger, J.

William Louis Kranz, appellant, was convicted, following a jury trial in the Circuit Court for Cecil County, of two counts each of assault in the first degree and reckless endangerment. The court then sentenced Kranz to a total term of five years’ imprisonment, to be followed by three years’ supervised probation.

Thereafter, Kranz filed a petition, under the Maryland Uniform Postconviction Procedure Act, seeking to vacate his convictions on the ground that the State had committed a Brady violation—that, at the time of his trial, an Assistant State’s Attorney in Cecil County, although not involved in Kranz’s criminal case, was representing the two victims in that case in a separate civil action against Kranz, arising out of the same incident, but that that conflict had not been disclosed to the defense. The postconviction court ruled that the State had, indeed, failed to make a required disclosure to Kranz, but it nonetheless denied his petition on the basis that the State’s nondisclosure was not “material” because it did not “create a reasonable probability of a different result.”

Subsequently, Kranz filed an application for leave to appeal from that decision, which this Court granted. It, therefore, appeared that the issue before us was whether the postconviction court had erred in concluding that the State’s nondisclosure was not “material” and, concomitantly, whether the postconviction court had applied the correct materiality standard under the facts of this case. However, unbeknownst to the applications panel, sometime after Kranz had filed his application for leave to appeal but prior to the granting of that application, Kranz completed serving his sentence, including the three-year probationary period.

In its brief, the State has included a motion to dismiss, asserting that, upon the completion of Kranz’s sentence, this Court was divested of appellate jurisdiction and therefore must dismiss this appeal. For the reasons that follow, we shall grant that motion,

BACKGROUND

We quote the memorandum opinion of the posteonviction court for factual background:

Kranz was convicted of first degree assault and reckless endangerment by a jury in the Circuit Court for Cecil County, for shooting victims Brandi Schaffer and George McSwain when they were accidentally driving on his property. After his conviction, but before sentencing, Kranz learned that Ms. Schaffer and Mr. McSwain had filed a civil suit against him over the same incident. They were seeking damages in excess of one million dollars. They obtained Kevin Urick as counsel in the civil suit.
Mr. Urick (hereafter ASA Urick) serves as a full time [Assistant [Sjtate’s [Ajttorney while also maintaining a private practice. As an ASA, Mr. Urick worked under the State’s Attorney, Christopher Eastridge: the prosecuting attorney in Mr. Kranz’s criminal trial. ASA Urick was in no way involved in the criminal prosecution of Mr. Kranz and had no contact with Mr. Eastridge regarding preparation for the case. However, Mr. Eastridge was aware of ASA Urick’s representation of Ms. Schaffer and Mr. McSwain in the civil suit and at no time disclosed this information to Mr. Kranz nor to his attorney.
Mr. Kranz’s criminal trial may reasonably be considered close as he was tried twice as a result of a hung jury in his first trial. In the latter trial the [Sjtate’s case was put on primarily by use of circumstantial evidence as the [Sjtate was not able to present any direct evidence against Mr. Kranz. Likewise, victims Ms. Schaffer and Mr. McSwain were the [Sjtate’s key witnesses. The record states that neither Ms. Schaffer nor Mr. McSwain could positively identify Mr. Kranz as the shooter and instead could only testify as to seeing a shadowy figure immediately prior to the shots being fired. Mr. Kranz’s trial counsel cross-examined both witnesses but ultimately was unsuccessful in persuading the jury to find in favor of Mr. Kranz.
After the jury’s verdict but prior to being sentenced, Mr. Kranz was notified of the civil suit filed against him by Ms. Schaffer and Mr. McSwain. Subsequently, he notified his trial counsel of the information. Prior to sentencing defense counsel filed a motion for new trial that did not include claims regarding a Brady violation by the [Sjtate for failing to disclose ASA Urick’s representation of Ms. Schaffer and Mr. McSwain in the civil suit. The trial court denied this motion. Mr. Kranz filed an appeal on August 17, 2009.
On September 23, 2009 another motion for new trial was filed. A hearing for this new trial motion was held on December 11, 2009 before Judge Kahl. This motion was denied. Subsequently, the Court of Special Appeals issued Judge Moylan’s unreported opinion on November 9, 2010 affirming Judge Kahl’s denial of Mr. Kranz’s motion for a newtrial.

Kranz v. State, No. 07-K-06-000806, slip op. at 2-3 (Cecil Cnty. Cir. Ct. May 20, 2013).

Kranz was sentenced, on July 31, 2009, to two consecutive five-year sentences for the first-degree assault convictions, the latter suspended, to be followed by three years’ probation. He was thereafter released (apparently through operation of diminution credits, see Correctional Services Article, §§ 3-701 to 3-711), and his probation concluded on April 7, 2015. Thereafter, on August 31, 2016, his application for leave to appeal from the denial of his postconviction petition was granted. As we shall see, that timeline is crucial to our disposition of the instant appeal.

DISCUSSION

I.

This appeal turns upon an issue of statutory construction, which is a question of law that we review de novo. Moore v. State, 388 Md. 446, 452, 879 A.2d 1111 (2005). The canons of statutory construction are well settled and begin with the “cardinal rule”—that is, we must “ascertain and effectuate the intent of the Legislature.” Jamison v. State, 450 Md. 387, 396 n.9, 148 A.3d 1267 (2016) (citation and quotation omitted). “In ascertaining legislative intent, we first examine the plain language of the statute, and if the plain language of the statute is unambiguous and consistent with the statute's apparent purpose, we give effect to the statute as it is written.” Id.

II.

Maryland Code (2001, 2008 Repl. Vol.),. Criminal Procedure Article (“CP”), § 7-101, the first section of the Maryland Uniform Postconviction Procedure Act, provides as follows:

This title applies to a person convicted in any court in the State who is:
(1) confined under sentence of imprisonment; or
(2) on parole or probation.

(Emphasis added.)

That provision, known as the “custody” requirement, Obomighie v. State, 170 Md.App. 708, 712 n.2, 908 A.2d 132, cert. denied, 396 Md. 13, 912 A.2d 649 (2006) (citing McMannis v. State, 311 Md. 534, 539, 536 A.2d 652 (1988)), “is jurisdictional in nature.” Id. at 713, 908 A.2d 132. In Obomighie, we examined the application of that jurisdictional requirement to a person who, at an earlier stage of a postconviction proceeding, had been eligible to seek relief under the Act, but subsequently, during the pendency of that proceeding, became ineligible because he had finished serving his sentence. For reasons that will become clear, Obomighie bears closer scrutiny.

Obomighie had been convicted of assault in the second degree and sentenced to a term of eighteen months’ imprisonment, all of which was suspended in favor of eighteen months’ supervised probation. Id. at 710, 908 A.2d 132. While on probation, he filed a postconviction petition, but, before a hearing could be scheduled and his petition heard, Obomighie completed serving his sentence. Id. The postconviction court subsequently conducted a hearing and “entered an order dismissing the case for want of jurisdiction because Obomighie was no longer on probation.” Id.

He filed an application for leave to appeal from that ruling, which this Court granted, and, thereafter, we affirmed the postconviction court’s order, dismissing Obomighie’s petition for lack of jurisdiction. Especially pertinent here, we noted that the “apparent conflict” between CP § 7-101, “which limits the scope of the title, and the jurisdiction of the circuit court, to persons imprisoned or on parole or probation,” and CP § 7-102, which (subject to the ten-year statute of limitations, CP § 7-103), “on its face, permits initiating” a postconviction proceeding “at any time,” was resolved by the Court of Appeals in McMannis, which held, in effect, that the “custody” requirement of CP § 7-101 takes precedence over CP § 7-102. Obomighie, 170 Md.App. at 712, 908 A.2d 132. That is to say, “McMannis makes it clear that petitions may be ‘filed at any time,’ ” but “only by persons who are either confined, or on parole or probation.” Id. at 712-13, 908 A.2d 132. And that is true despite the fact that the purpose of the Maryland Uniform Postconviction Procedure Act is remedial, Douglas v. State, 423 Md. 156, 175, 31 A.3d 250 (2011); in other words, the remedies afforded by that Act are expressly limited to those who satisfy the “custody” requirement.

In the instant case, we must resolve a different apparent conflict regarding which statute (CP § 7-101 or CP § 7-109) governs appeals in postconviction proceedings. The latter statute provides in pertinent part:

(a) Within 30 days after the court passes an order in accordance with this subtitle, a person aggrieved by the order, including the Attorney General and a State’s Attorney, may apply to the Court of Special Appeals for leave to appeal the order.

According to Kranz, this provision confers appellate jurisdiction upon this Court, regardless of whether or not he was in custody, at the time we purported to grant his application for leave to appeal, so long as he was in custody when the circuit court ruled on his postconviction petition. We disagree.

For the same reason that McMannis and Obomighie held that the “custody” requirement of CP § 7-101 takes precedence over the filing provisions of CP § 7-102, we conclude that the “custody” requirement must also take precedence over the appeals provisions of CP § 7-109. That is because CP § 7-101 states, without qualification, that “[t]his title applies to a person convicted in any court in the State who is” in “custody,” whether incarcerated or on parole or probation. “This title,” of course, refers to the entirety of Title 7 of the Criminal Procedure Article (that is, the Maryland Uniform Postconviction Procedure Act), including the appeals provisions of CP § 7-109.

To be eligible for relief under Title 7, the convicted person must, as we explained in Obomighie, be presently either incarcerated or on parole or probation, because CP § 7-101 “uses the present tense when it states that ‘[t]his title applies to a person ... who is ... on parole or probation.’” 170 Md.App. at 711, 908 A.2d 132 (emphasis added). And, concomitantly, as we further explained, the language, in CP § 7-101, setting forth those to whom the Act applies, “is equivalent, under the doctrine of expressio unius, to saying that people who do not meet [the ‘custody’ requirement] are ineligible” for postconviction relief “because they are outside the scope of the statute.” Id.

Throughout the time period during which Kranz filed his postconviction petition, the circuit court ruled on that petition, and Kranz filed an application for leave to appeal from the circuit court’s ruling, Kranz was in “custody” within the meaning of the Maryland Postconviction Procedure Act. However, during the pendency of his application for leave to appeal, Kranz completed serving his sentence, thereby attaining the status of a person who is “ineligible” for postconviction relief because he is “outside the scope of the statute.” Id. For the same reason that the change in Obomighie’s status, during the pendency of his postconviction petition, from a person in “custody” to one no longer in “custody,” divested the circuit court of jurisdiction to rule on the petition in that case, id, at 713, 908 A.2d 132, the change in Kranz’s status, during the pendency of his application for leave to appeal, from a person in “custody” to one no longer in “custody,” divested us of appellate jurisdiction. We, therefore, are constrained to grant the State’s motion to dismiss this appeal.

APPEAL DISMISSED. COSTS TO BE DIVIDED EQUALLY BETWEEN THE APPELLANT AND CECIL COUNTY.

      . Generally, the materiality standard in a case alleging a Brady violation is "whether there is a 'reasonable probability’ that disclosure of the suppressed evidence would have led to a different result.” Yearby v. State, 414 Md. 708, 717, 997 A.2d 144 (2010) (quoting Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995)). A different standard applies, however, in cases where "the undisclosed evidence demonstrates that the prosecution's case includes perjured testimony and that the prosecution knew, or should have known, of the perjury.” United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). In that case, a "new trial is required if ‘the false testimony could ... in any reasonable likelihood have affected the judgment of the jury[.]’” Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) (quoting Napue v. Illinois, 360 U.S. 264, 271, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959)). Whether the latter standard should apply in a case such as this, where the prosecution apparently failed to disclose a conflict of interest, which, arguably, created an appearance that the prosecution had a financial interest in obtaining a conviction, is unclear, and, given our disposition of this appeal, we need not further consider that question.

      2. It appears that Urick still maintains a private practice in Cecil County but no longer works as an Assistant State’s Attorney in that county. See "Kevin Urick, Attorney at Law, Attorney Profile," available at ht1p:// www.kevinurick.net/attorney_profile.html (last visited June 28, 2017).

      3. Not only was there a mistrial declared after the first trial, as a result of a hung jury, but, furthermore, the jury at the retrial deliberated three days before reaching a verdict.

      4. In fact, this Court concluded that Kranz’s September 23, 2009 motion for new trial was not properly before it because that motion had been filed after the notice of appeal was filed, and no notice of appeal was filed after the September 23, 2009 motion was denied. Kranz v. State, No. 1548, Sept. Term, 2009, slip op. at 2-3 (filed Nov. 9, 2010). The panel opinion went on to conclude that, even had a proper appeal been taken from the denial of the September 23, 2009 motion for new trial, Kranz could not have prevailed because the allegation raised would have had to qualify as newly discovered evidence, under Maryland Rule 4-331(c), but it was clear from the record that it did not. Id., slip op. at 16-17.

      . The reckless endangerment convictions were merged for sentencing purposes.

      . The record submitted to this Court does not contain sufficient information for us to determine the factual basis for this statement. Attached to the State’s motion to dismiss, however, is a letter, from Eleanor McMullen, Special Assistant to the Director of the Division of Parole and Probation, addressed to appellee’s counsel, stating the supporting facts. In his reply brief, Kranz does not challenge those factual assertions, claiming instead that they do not support the legal conclusion that his appeal should be dismissed. We shall therefore assume the veracity of the assertions stated in that letter. Md. Rule 5-201(b), (c).

      . CP § 7-I02(a) provides in pertinent part that, subject to various enumerated conditions (including the ten-year statute of limitations in CP § 7-103), "a convicted person may begin a proceeding under this title in the circuit court for the county in which the conviction took place at any time,” provided that his claims are cognizable under the statute.

      . McMannis interpreted Maryland Code (1957, 1982 Repl. Vol., 1987 Cum. Supp.), Art. 27, § 645A, the statutory predecessor to the current Title 7 of the Criminal Procedure Article, but the specific provisions at issue are substantially similar. In fact, the only significant substantive difference between the 1987 version of the Act and the present one is that the former was less restrictive of a petitioner’s right to file, as it lacked the ten-year statute of limitations in the present statute, which was enacted in 1995. 1995 Md. Laws, ch. 258.

      . Indeed, the Douglas Court acknowledged that, although the Maryland Uniform Postconviction Procedure Act has a remedial purpose, there are circumstances for which it does not provide a remedy. Douglas v. State, 423 Md. 156, 175, 31 A.3d 250 (2011). We think that the "custody” requirement delineates some of those circumstances.


author: Nazarian, J.

text:
    168 A.3d 992
    Walter R. HURT v. Verdena JONES-HURT
    No. 2328,
    Sept. Term, 2014
    Court of Special Appeals of Maryland.
    August 30, 2017

      Argued by: John J. Condliffe (Levin & Gann PA, on the brief), Towson, MD, for Appellant.
    Argued by: Thomas McKeon (Butler, McKeon & Associates PA, on the brief), Baltimore MD, for Appellee.
    Panel: Nazarian, Leahy, Friedman, JJ.
   Nazarian, J.

When Verdena Jones-Hurt (“Wife”) and Walter Hurt (“Husband”), a veteran, divorced, the Circuit Court for Baltimore City included one-third of Husband’s military pension in the marital property award it ordered in Wife’s favor. Years after the divorce, Husband was reevaluated for a military service disability benefit and his disability rating increased, which made him eligible for more disability benefits and allowed him to waive a portion of his pension (which is taxable and may be considered marital property) in favor of disability benefits (which are not taxable and may not, as a matter of federal law, be considered marital property). The result was that the federal government paid Husband the same amount of money each month, but Husband retained a greater share of it than the circuit court had awarded him: Wife received one-third of a smaller pension benefit, and Husband kept two-thirds of the smaller pension and all of the disability benefits.

Wife sought a declaratory judgment seeking, in effect, a ruling that Husband’s election had circumvented the divorce judgment and that awarded her the same amount she previously had been receiving. Over the course of three different orders, the court ruled that Wife was entitled to the same overall dollar amount from Husband’s total military benefits, notwithstanding the reduction in his pension payout. That result was consistent with three reported decisions of this Court and the greater weight of cases across the country. Husband challenges these decisions and argues, among other things, that our cases were wrongly decided. We need not revisit our earlier decisions ourselves, though, because the Supreme Court of the United States’s opinion in Howell v. Howell, — U.S. -, 137 S.Ct. 1400, 197 L.Ed.2d 781 (2017), issued after argument in this ease, effectively overrules our precedents and compels us to reverse the judgment of the circuit court.

I. BACKGROUND

Husband served in the Army National Guard of Maryland from July 8, 1969 to June 14, 1971 and from May 15, 1985 to October 1,1987. He suffered three injuries during his time in the service—one during the first period and two during the second. After his first injury, Husband received a ten percent disability rating that entitled him to a Wartime Disability Compensation award pursuant to 88 U.S.C. § 1110. He retired from the Army National Guard in 1998 and later applied for retirement benefits, which would kick in after he turned sixty years old.

Husband and Wife married in 1972, and divorced on October 26, 2004, via a Judgment of Absolute Divorce issued by the circuit court. Among other things, the judgment awarded Wife alimony of $600 per month for three years and “one-third of the marital share of [Husband]’s pension from the United States Army, the marital share ... to be calculated from June 3, 1972 to April 1, 2002.” Everyone agrees that at the time that it entered the Judgment of Absolute Divorce, the court was not aware that Husband was receiving disability benefits.

On January 13, 2009, Husband “filed a claim for increased evaluation” of his disability with the Department of Veterans Affairs (“DVA”). While awaiting the DVA’s decision, Husband turned sixty years old and began collecting his Army pension as a reservist. See 10 U.S.C. § 12731. Because a retiree may not receive both reservist retirement and disability compensation, see 38 U.S.C. § 5305, Husband’s receipt of disability benefits from the DVA automatically reduced his retirement pension from the Department of Defense on a dollar-for-dollar basis. On December 15, 2009, the DVA issued a Rating Decision that increased Husband’s monthly disability entitlement and allowed him to receive thirty, rather than ten, percent of his total military benefits as disability benefits rather than pension:

Evaluation of right knee replacement, which is currently 10 percent disabling, is increased to 100 percent effective December 19, 2008. An evaluation of 30 percent is assigned from February 1, 2010[.]

On October 26, 2011, Wife reopened the case and filed a Complaint for Entry of Qualified Domestic Relations Orders. One of the two orders she sought pertained to Husband’s military pension, and would have provided that “any portion of the Service Member’s Disposable Retired Pay that he waives in order to receive military disability retired pay ... in lieu of Disposable Retired Pay shall be added back in, and any deficiency resulting from any such waiver that affects the amount paid directly to [Wife] by the Designated Agent shall be paid to her directly by [Husband].” Husband filed an answer stating that Wife’s proposed orders were “seriously inconsistent with the October 26, 2004 order.” After a hearing on February 27, 2012, the circuit court denied Wife’s Motion for Entry of Qualified Domestic Relations Orders and entered an order to that effect.

On August 21, 2012, Wife filed a Motion for Declaratory Judgment and Ancillary Relief, requesting that the circuit court determine that she had a valid claim to Husband’s pension arrears and that the court enter a Constituted Pension Order that included a provision that “[t]o the extent the Designated Agent is prohibited by law or regulation from paying the entire amount required by this order to [Wife], [Husband] shall personally pay any shortfall to [Wife].” Husband responded that “[t]he order violates federal law and deprives [Husband] of disability benefits for a disability which occurred before the marriage, worsened during the marriage. Such action by the state court is explicitly barred by federal law.” The court held a hearing and determined that Wife was entitled to the same division of retirement benefits in the 2004 order:

I agree with both of you. [Husband’s counsel], yes, the court can’t order retirement benefits and disability benefits for— from your client’s military award, but at the same time I agree with [Wife’s counsel] in terms of the Allen case and the argument that every person in the military would then file then later disability and then try and cut the spouse off completely or to a certain percentage of the disability.
I don’t think that was the intent of the courts. I’ve looked at the—and reviewed the judgment of divorce in 2004, and it looks like the court contemplated that [Wife] would receive one-third of all retirement benefits accrued between June 3rd, 1972 and April 2nd, 2002.
To deny her benefits that were originally for—I’m sorry, to deny her benefits that the court originally intended for her to share today would be contrary to the intent, I believe, of the court based on the court’s determination after a hotly contested trial of the testimony and the exhibits.
And of course I’m not going to demand that the military-payments be paid directly to [Wife] because it would be in violation of federal law, but in principle not of contract, but out of principle of the intent of the original court that issued the absolute divorce I think and I believe that—and I’m not in [the 2004 judgej’s head, but I think he was trying to award her one-third of the spouse’s, [Husband]’s military retirement.
In terms of some sort of provision, [Wife’s counsel], that you’re asking the court to put in here that would limit the amount or prevent her from—that’s something in the future, and because there’s no number that we have definitive now I hesitate to do that, and of course I think if there is ever a 30 percent, they stay with 30 percent or go higher I’m sure—and this court does have jurisdiction over the parties—that you will come back to court and ask for some relief.

After two days of hearings on April 16 and 17, 2014, the circuit court entered a Constituted Pension Order that awarded Wife “26.57 percent of [Husbandí’s disposable military retired pay [and] a pro rata share of any post-retirement increases and cost of living adjustments to [Husbandj’s Disposable Retired Pay.”

On November 14, 2014, Husband filed a Motion to Modify or Reconsider Ruling As to Military Disability Compensation or, in the Alternative, for Judgment in Favor of Defendant and Request for Hearing. Wife responded on December 1, 2014, and in an order filed December 9, 2014, the circuit court denied Husband’s motion.

In March 2015, Husband filed a Motion to Amend Constituted Pension Order in which he requested that the court change the percent of the total pension to which Wife was entitled to 23.97% rather than 26.57%. The court denied Husband’s motion, and on September 18, 2015, entered a nunc pro tunc order, that provided, among other things, “that the trial court intended through its Judgment of Absolute Divorce for [Wife] to receive one-third of [Husband]’s military pension benefits accrued between June 3,1972 and April 1, 2002” and that the parties agreed that Wife’s “marital share of [Husbandj’s military pension is 26.6%.” The court further recognized that directing the military to pay the full amount of the pension owed to Wife would contravene federal law and “[ordered] that [Husband] shall pay to [Wife] the differential between the amount [Wife] receives directly from the government once [Wife] begins to receive her portion of the pension through the Constituted Pension Order, and the full amount of the pension she is entitled to receive pursuant to the divorce judgment.” On May 16, 2016, the parties filed a Proposed Supplemental Order, which the court entered on June 14, 2016, that ordered that Husband pay Wife “26.57% of [his] military disability payments by direct payment as a result of converting a portion of his military retired pay to disability pay.”

The circuit court then entered a Declaratory Judgment, dated July 15, 2016, declaring that Wife was not entitled to any portion of Husband’s disability benefits and that any portions of the Judgment for Absolute Divorce requiring division of Husband’s disability benefits was unenforceable. The circuit court explained in its accompanying memorandum that it “lack[ed] authority to order division of [Husband]’s military disability benefits, where, as here, [Husband] took no steps to dilute [Wife]’s ordered share of the benefits and the parties reached no agreement regarding division of such benefits.” The court, however, “[declared] that to the extent funds are available for payment of benefits to [Wife] from [Husband]’s disposable retirement pay, [Wife] is entitled to receive the benefits, up to one-third of [Husband]’s benefits as required by the Judgment of Absolute Divorce.” This timely appeal followed.

II. DISCUSSION

Husband challenges the portion of his military benefits that the circuit court required him to pay to Wife after his military disability benefits increased, and that decision is grounded in legal conclusions that we review de novo. Wilson v. Wilson, 223 Md.App. 599, 609, 117 A.3d 138 (2015) (citation omitted). He offers three arguments in favor of reversal. First, he attempts to distinguish this case from three reported cases of this Court that address the division by agreement of a spouse’s military retirement benefits. Second, whether or not this case is distinguishable, he argues, the earlier cases on which the circuit court relied were decided wrongly. Third, Husband argues that the circuit court considered improperly his future eligibility for military disability compensation when it considered and awarded alimony to Wife.

Although it might seem like a regular family law case, this appeal poses a thorny federalism question. Marriage, divorce, and the division of marital property are quintessentially matters of state law, and pension or retirement benefits normally are considered marital property at the time of divorce. But military benefits are creatures of federal law, and the treatment of military benefits in state divorce proceedings has been a source of federal and state tension for decades.

In 1981, the Supreme Court of the United States held that the federal statute governing military benefits preempted state family law and precluded those benefits from being treated as community property in state divorce proceedings. McCarty v. McCarty, 453 U.S. 210, 232-33, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981). The Court of Appeals extended the McCarty principle to marital property in this equitable distribution state soon after. Hill v. Hill, 291 Md. 615, 620-21, 436 A.2d 67 (1981). In response to McCarty, Congress passed the Uniform Services Former Spouses Protection Act (“USFS-PA”), codified in pertinent part at 10 U.S.C. § 1408. That statute authorized states to treat the net disposable pay of retired service members as divisible property. Collins v. Collins, 144 Md.App. 395, 421-22, 798 A.2d 1155 (2002). The USFSPA defines “disposable retired pay” as “the total monthly retired pay to which a member is entitled” minus certain amounts. 10 U.S.C. § 1408(a)(4). “Among the amounts required to be deducted from total pay are any amounts waived in order to receive disability benefits.” Mansell v. Mansell, 490 U.S. 581, 585, 109 S.Ct. 2023, 104 L.Ed.2d 675 (1989) (citing 10 U.S.C. § 1408(a)(4)). “Thus, under the Act’s plain and precise language, state courts have been granted the authority to treat disposable retired pay as community property; they have not been granted the authority to treat total retired pay as community property.” Id. at 589, 109 S.Ct. 2023.

Faced with the McCarty issue under the then-new statute, the Supreme Court held in Mansell that “the [USFSPA] does not grant state courts the power to treat as property divisible upon divorce military retirement pay that has been waived to receive veterans’ disability benefits.” Id. at 594-95, 109 S.Ct. 2023. And in the course of explaining the differences between the two forms of benefits, the Court recognized the tax advantages of waiving retirement pay in favor of disability benefits:

Members of the Armed Forces who serve for a specified period, generally at least 20 years, may retire with retired pay. The amount of retirement pay a veteran is eligible to receive is calculated according to the number of years served and the rank achieved.... The amount of disability benefits a veteran is eligible to receive is calculated according to the seriousness of the disability and the degree to which the veteran’s ability to earn a living has been impaired.
In order to prevent double dipping, a military retiree may receive disability benefits only to the extent that he waives a corresponding amount of his military retirement pay. Because disability benefits are exempt from federal, state, and local taxation, ... military retirees who waive their retirement pay in favor of disability benefits increase their after-tax income. Not surprisingly, waivers of retirement pay are common.

Id. at 583-84, 109 S.Ct. 2023 (emphasis added) (internal citations and footnote omitted).

As to military pension benefits, though, the USFSPA “specifically overruled the Supreme Court with the intent to return to state law. ‘Under Maryland law, ... pensions generally, including military pensions, are marital property.’” Collins, 144 Md.App. at 422, 798 A.2d 1155 (quoting Andresen v. Andresen, 317 Md. 380, 384, 564 A.2d 399 (1989)). “[A] military pension shall be considered in the same manner as any other pension or retirement benefit” when determining whether property is marital property. Md. Code (1984, 2012 Repl. Yol.), § 8-203(b) of the Family Law Article (“FL”); see also Collins, 144 Md.App. at 415, 798 A.2d 1155 (“There is no question that a pension, or rights to a pension, are part of marital property.” (citations omitted)). Thus, a court “may transfer ownership of an interest in a pension, retirement, profit sharing, or deferred compensation plan, from one party to either or both parties,” FL § 8-205(a)(2)(i), “to the extent it was earned during the marriage,” Woodson v. Saldana, 165 Md.App. 480, 488, 885 A.2d 907 (2005). “[T]he court has broad discretion in evaluating pensions and retirement benefits, and in determining the manner in which those benefits are to be distributed.” Id. at 489, 885 A.2d 907 (quoting Welsh v. Welsh, 135 Md.App. 29, 54, 761 A.2d 949 (2000)).

The veteran spouse’s ability to waive retirement pay in favor of disability benefits creates opportunities for disagreements and gaming, though, especially when the election comes after the property division is finalized. In earlier cases, we and other state courts reconciled this tension by treating the total military benefit as a whole. See Allen v. Allen, 178 Md.App. 145, 155, 941 A.2d 510 (2008) (stating that the term “pension/retirement plans” included “all retirement benefits accrued as a result of appellant’s military service”); see also Bandini v. Bandini, 935 N.E.2d 253, 260-61 (Ind. Ct. App. 2010) (stating that the term “military retirement/pension plan” is broad and refers to the appellant’s retirement benefits as one unit such that, in the absence of any limiting language, it “encompasse[d] [appellant’s gross retirement pay, before any deductions for [his Survivor Benefit Plan] costs or amounts waived to receive [DVA] disability benefits”); Johnson v. Johnson, 37 S.W.3d 892, 896-97 (Tenn. 2001) (stating that where the phrase “all military retirement benefits” was undefined, it unambiguously included “all amounts to which the retiree would ordinarily be entitled as a result of retirement from the military,” including amounts waived to receive disability benefits). Although the portions of a veteran’s gross retirement pay waived to receive disability benefits may not be included in a marital award, Mansell, 490 U,S. at 594-95, 109 S.Ct. 2023, several states’ courts have enforced agreements—in other words, kept the non-veteran spouse whole— where the veteran elected after the decree to waive all or some of a military retirement pension to receive disability benefits. See, e.g., Bandini, 935 N.E.2d at 262, 266; Allen, 178 Md.App. at 155-56, 941 A.2d 510; Dexter v. Dexter, 105 Md.App. 678, 680, 661 A.2d 171 (1995); Johnson, 37 S.W.3d at 896-97. Although the veteran was entitled as a matter of federal law to make the election, divorce courts viewed the exercise of that right as altering the parties’ bargain as a matter of state law, and took steps to maintain the balance that the parties intended.

Our Court confronted this tension in three reported cases over the years. In Dexter, the parties reached an agreement regarding the division of one spouse’s military pension, and that agreement was read into the record and incorporated into their divorce judgment. Dexter, 105 Md.App. at 680, 661 A.2d 171. Shortly thereafter, the military spouse voluntarily waived his rights to military retirement benefits in favor of disability benefits, and the non-military spouse stopped receiving pension payments. Id. at 680, 661 A.2d 171. We concluded that “[t]he inability of [the non-military spouse] to receive the benefits she bargained for [wa]s caused not by any federal statute or case law, but by [the military spouse]’s rejection, by waiver, of the retirement benefits that he had agreed were to be partially hers.” Id. at 684, 661 A.2d 171. Relying on Maryland contract law, we held that the military spouse’s voluntary waiver of his military retirement pension breached his contract:

where ... the parties enter into an agreement that one spouse will receive a percentage of pension benefits, on a periodic basis, when they become payable, and when ... they are already payable and being paid, the pensioned party may not hinder the ability of the party’s spouse to receive the payments she has bargained for, by voluntarily rejecting, waiving, or terminating the pension benefits.

Id. at 686, 661 A.2d 171.

We reached similar conclusions in Allen and Wilson. In Allen, we determined that a military spouse who had agreed to share a pension may not take steps to dilute the other spouse’s share by rejecting, waiving, or terminating pension benefits voluntarily. 178 Md.App. at 155-56, 941 A.2d 510. Viewing the case through a contractual lens, we concluded that the nonmilitary spouse would be entitled to the agreed percentage of the veteran’s overall military benefit “because [the military spousej’s disability retirement benefits are paid as pension and retirement benefits and take the place of other pension and retirement benefits, [and thus,] they are subject to the division of ‘pension/retirement plans.’ ” Id. And we recognized that although federal law precludes state courts from treating disability retirement benefits as marital property, the veteran spouse could discharge his obligations without spending disability benefits to do it:

[t]he circuit court’s ruling on appeal does not require payment to [the spouse] of any disability benefits, thus, the court, in essence, is not treating as property divisible, payment that has been waived to receive disability benefits. When [the military spouse] was discharged from the military, he received in entirety the benefits the United States owed to him for his service. These assets have become part of [the retiree’s] general assets. Accordingly, [the military spouse] can satisfy the judgment against him with any assets, thereby not violating Mansell. We, therefore, affirm the circuit court’s determination of arrearages to be satisfied by [the military spouse] out of his general assets.

Id. at 153-54, 941 A.2d 510.

In Wilson, we held as well that where a party agrees to a transfer of assignable pension benefits as part of a divorce settlement, he may not frustrate that agreement by waiving those pension benefits. 223 Md.App. at 629, 117 A.3d 138. We noted that, as in Allen, 178 Md.App. at 146, 941 A.2d 510, the parties agreed that the spouse would receive a percentage of the marital portion of the military spouse’s military retirement benefits and “that those benefits were not required to be paid by the military.” 223 Md.App. at 626, 117 A.3d 138. After looking at Allen and Dapp v. Dapp, 211 Md.App. 323, 65 A.3d 214 (2013), we concluded that the military spouse’s “anticipated military benefits were divisible and assignable at the time of contract,” that “the parties’ property settlement agreement was valid at the time it was executed, and the trial court had the authority to enforce the parties’ agreement.” Wilson, 223 Md.App. at 629, 117 A.3d 138 (citations omitted).

Our eases are consistent with the majority view in other states’ courts, i.e., that Mansell and the USFSPA did not preclude courts from requiring a military spouse to compensate a spouse when the spouse’s share of retirement pay was reduced by the military spouse’s unilateral waiver of retirement pay in favor of disability benefits. As in our cases, these courts proceeded from the principle that it is inequitable to allow a veteran to diminish voluntarily the military retirement benefits owed to a spouse as part of a valid and enforceable divorce judgment. E.g., In re Marriage of Krempin, 70 Cal. App.4th 1008, 83 Cal.Rptr.2d 134, 143 (1999); In re Marriage of Warkocz, 141 P.3d 926, 929-30 (Colo. Ct. App. 2006); Black v. Black, 842 A.2d 1280, 1285 (Me. 2004); Shelton v. Shelton, 119 Nev. 492, 78 P.3d 507, 509-10 (2003); Whitfield v. Whitfield, 373 N.J.Super. 573, 862 A.2d 1187, 1192 (App. Div. 2004); Hadrych v. Hadrych, 140 N.M. 829, 149 P.3d 593, 597 (App. 2006); Resare v. Resare, 908 A.2d 1006, 1009-10 (R.I. 2006). Some courts distinguished pre-divorce and post-divorce waivers on the ground that Mansell’s, holding, ie., that state courts may not “treat as property divisible upon divorce military retirement pay that has been waived to receive veterans’ disability benefits,” 490 U.S. at 594-95, 109 S.Ct. 2023 (emphasis added), extended only to waivers known at the time of the divorce. See, e.g., Krempin, 83 Cal.Rptr.2d at 139. Some focused more on the non-military spouse’s vested interest in the military retirement pay, and precluded the military spouse from waiving retirement pay in favor of disability benefits after the divorce judgment. E.g., Surratt v. Surratt, 85 Ark. App. 267, 148 S.W.3d 761, 767 (2004); In re Marriage of Neilsen & Magrini, 341 Ill.App.3d 863, 275 Ill.Dec. 369, 792 N.E.2d 844, 849 (2003); Black, 842 A.2d at 1286; Hadrych, 149 P.3d at 598; Hodge v. Hodge, 197 P.3d 511, 515-16 (Okla. Civ. App. 2008); Johnson, 37 S.W.3d at 897-98. Either way, these courts, like the circuit court in this case, recognized the federal law that creates the veteran’s right to different types of benefits, but sought, in the context of state law divorce proceedings, to blunt the opportunity for veterans to game their divorce judgments through after-the-fact elections.

But a new Supreme Court decision, issued since oral argument in this case, diminishes state courts’ efforts to carry out state law objectives in this quintessentially state law space. In Howell v. Howell, the Supreme Court held that state law purporting to recognize a vested interest in military retirement pay is preempted by federal law, period. - U.S. -, 137 S.Ct. 1400, 1405-06, 197 L.Ed.2d 781 (2017) (citing Mansell, 490 U.S. at 594-95, 109 S.Ct. 2023). Put another way, the veteran’s ability under federal law to waive retirement pay for disability benefits, at whatever time his disability status might change, overrides (preempts!) any state law agreement he might have made, or state court judgment to which he was a party, relating to his military retirement benefits, and the parties and state court should have factored this possibility when valuing the parties’ marital property:

Hence here, as the Solicitor General emphasizes, the nonmilitary spouse and the family court were likely to have assumed that a full share of the veteran’s retirement pay would remain available after the assets were distributed.
Nonetheless, the temporal difference highlights only that [the veteran’s] military retirement pay at the time it came to [the spouse] was subject to later reduction (should [the veteran] exercise a waiver to receive disability benefits to which he is entitled). The state court did not extinguish (and most likely would not have had the legal power to extinguish) that future contingency. The existence of that contingency meant that the value of [the spouse’s] share of military retirement pay was possibly worth less—perhaps less than [the spouse] and others thought—at the time of divorce. So too is an ownership interest in property (say A’s property interest in Blackacre) worth less if it is subject to defeasance or termination upon the occurrence of a later event (say, B’s death).

137 S.Ct. at 1405.

Before Howell, our decisions in Allen, Dexter, and Wilson supported the circuit court’s decision here. And as a matter of real-world logic, those decisions made sense. In a divorce like this, where the military spouse’s pension comprises a meaningful proportion of the couple’s marital property, the court presiding over the divorce has to value the assets based on the information available at the time of trial. When Husband and Wife divorced, the trial court didn’t know that Husband was receiving disability benefits, and the record before us reveals no inkling that his disability status might increase over time. Even if the parties had had such an inkling, there would have been no way to know whether the military would have granted a change in status, how much of a change it might grant, or when. Allen, Dexter, and Wilson respected the federal law defining military retirement and disability benefits, but viewed the federal law as defining the property that the divorce court was to value and divide, and allowed our courts to adapt the implementation of their marital property awards to the fluid real-life circumstances of the parties.

Howell effectively overrules these cases. And as a result, Husband’s ability to elect disability benefits over retirement pay overrides our courts’ ability to amend the marital property award to reflect post-judgment changes in circumstances. Although the circuit court could not have known this at the time, we now know that military retirement benefits are always contingent, whether or not the veteran has a disability rating at the time of divorce. The possibility of a new disability rating is always out there, and parties and courts must account for (and attempt to predict the likelihood of) these contingencies when valuing military retirement pay. To be sure, the Supreme Court recognized that its holding might work as a hardship on divorcing spouses, and “note[d] that a family court, when it first determines the value of a family’s assets, remains free to take account of the contingency that some military retirement pay might be waived, or ... take account of reductions in value when it calculates or recalculates the need for spousal support.” Id. at 1406. But of course, that doesn’t help Wife in this case, whose “one-third of the marital share of [Husbandj’s pension from the United States Army, the marital share ... to be calculated from June 3, 1972 to April 1, 2002” was grounded on a then-valid valuation of Husband’s benefit stream, but now finds herself entitled to a one-third share of a smaller pie.

Without Howell, our precedents would have supported a decision to affirm the judgment of the circuit court. Howell changed the superseding federal law on the question before us in this case, and compels us to reverse the circuit court.

Even so, the preemptive scope of Howell governs only the treatment of this particular asset in the analysis of marital property awards, and doesn’t seem to preclude a court from considering the contingent or diminished value of a military pension in connection with other relevant decisions in divorce cases. When Congress preempts state law, it does so “ ‘against the background of the total corpus juris of the states.’ ” Wallis v. Pan Am. Petro. Corp., 384 U.S. 63, 68, 86 S.Ct. 1301, 16 L.Ed.2d 369 (1966) (citation omitted). “[T]his is especially true where a statute deals with a familial relationship; there is no federal law of domestic relations, which is primarily a matter of state concern.” De Sylva v. Ballentine, 351 U.S. 570, 580, 76 S.Ct. 974, 100 L.Ed. 1415 (1956); see also U.S. v. Yazell, 382 U.S. 341, 351, 86 S.Ct. 500, 15 L.Ed.2d 404 (1966) (explaining that the Supreme Court’s theory and precedent “teach us solicitude for state interests, particularly in the field of family and family-property arrangements”); Ex parte Burrus, 136 U.S. 586, 593-94, 10 S.Ct. 850, 34 L.Ed. 500 (1890) (“The whole subject of the domestic relations of husband and wife ... belongs to the laws of the states, and not to the laws of the United States.”). As part of our federalist bargain, Congress may preempt state law “where clear and substantial interests of the National Government, which cannot be served consistently with respect for such state interests, will suffer major damage if the state law is applied.” Yazell, 382 U.S. at 351, 86 S.Ct. 500 (emphasis added). “On the rare occasion when state family law has come into conflict with a federal statute,” the Supreme Court’s review under the Supremacy Clause is limited to “determining] whether Congress ‘has positively required by direct enactment’ that state law be preempted.’ ” Hisquierdo v. Hisquierdo, 439 U.S. 572, 581, 99 S.Ct. 802, 59 L.Ed.2d 1 (1979) (quoting Wetmore v. Markoe, 196 U.S. 68, 77, 25 S.Ct. 172, 49 L.Ed. 390 (1904)). We presume, therefore, that Congress—and by extension, the Supreme Court—preempts no more broadly than necessary, and only to the extent it has said so. Cf. Wissner v. Wissner, 338 U.S. 655, 658, 70 S.Ct. 398, 94 L.Ed. 424 (1950) (Congress must preempt state authority with “force and clarity,”).

Howell dealt solely with the distribution of federal military benefits, and that is as far as we think it reaches. The Supreme Court itself has long recognized that issues of family law are “ ‘utterly incapable of being reduced to any pecuniary standard of value, as [they] rise[ ] superior to money considerations.’ ” Ex parte Burrus, 136 U.S. at 595, 10 S.Ct. 850 (citing Barry v. Mercein, 46 U.S. 103, 5 How. 103, 12 L.Ed. 70 (1847)). The distribution of the marital property, even the marital property of military couples, encompasses more than the proper valuation and treatment of federal benefits—it involves the consideration of equities that transcend accounting and money, a balancing analysis distinctly and historically a matter of state law. See Alston v. Alston, 331 Md. 496, 509, 629 A.2d 70 (1993); see also Ex parte Burrus, 136 U.S. at 597, 10 S.Ct. 850 (“[A] federal court cannot decide a family law case.”). All the more so in Maryland, an equitable property state. See Alston, 331 Md. at 508-09, 629 A.2d 70 (“The Maryland Legislature specifically rejected the notion that marital property should be divided equally” (footnote omitted)).

Howell now has redefined (or maybe re-redefined) the federal retirement and disability benefits that may be considered “marital property.” But a Maryland trial court’s equitable division of marital property only truly begins “once property [i]s determined to be ‘marital’ ” in the first place. See id. at 508, 629 A.2d 70. In other words, the Supreme Court may have shrunk the size of a slice (i.e., military pension benefits) in the marital award pie, but it is still up to our trial courts to determine the size of the pie under state law, then divide it equitably under the totality of the circumstances, and, alongside that process, to make other decisions about the parties’ post-marital financial future. To posit one other example, the impact of Howell may in a particular case constitute a change in circumstances entitling a court to revisit an alimony award, which is “always subject to reconsideration and modification in the light of changed circumstances,” Heinmuller v. Heinmuller, 257 Md. 672, 676-77, 264 A.2d 847 (1970), whether or not the parties or the court were aware ex ante that a spouse could elect to waive pension payments for disability benefits. We don’t have any of these questions before us in this case, and Howell leaves them to be decided by trial courts—our State’s trial courts—in the first instance.

JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY REVERSED. APPELLEE TO PAY COSTS.

      . Husband has appealed his thirty percent disability rating, and his DVA appeal was still pending at the time of oral argument.

      . The other order pertained to Husband’s state pension.

      3. The provided copy of the written order in Husband's record extract had 26.57 typed on it and 23.97 handwritten above the typed number. The original order in the record, however, does not contain the handwritten number. The correct number is 26.57.

      . Husband filed a notice of appeal on January 8, 2015, and the parties filed a Consent Motion to Remand or Appropriate Relief with this Court, which granted the motion, remanded the case, and stayed the appeal until now.

      . See note 4.

      . In his brief, Husband phrases the issue as: "Did the Circuit Court for Baltimore City err when it ordered, originally and on reconsideration, that Major Walter Hurt must pay to his ex-wife, Verdena Jones-Hurt, l/3rd of the marital share of his military disability benefit?”

      . Some state courts reached a contrary conclusion. See, e.g., In re Marriage of Pierce, 26 Kan.App.2d 236, 982 P.2d 995, 998 (1999); Youngbluth v. Youngbluth, 188 Vt. 53, 6 A.3d 677, 684-85 (2010).

      . But see Pierce, 982 P.2d at 998, Morgan v. Morgan, 249 S.W.3d 226, 232-33 (Mo. Ct. App. 2008), and Youngbluth, 6 A.3d at 685-87, for instances where state courts reached the contrary conclusion.

      . The potential gamesmanship and inequity are even stronger where the spouses agree on a property division, the premises of which are no longer sound. And although it is not our place to offer practice tips to the family law bar, it would seem that agreeing to a percentage of military retirement pay as part of a divorce settlement is now a much riskier gamble.


author: Graeff, J.

text:
    168 A.3d 1003
    David Deodatus NDUNGURU v. STATE of Maryland
    No. 520,
    Sept. Term, 2016
    Court of Special Appeals of Maryland.
    August 30, 2017

      Submitted by: Samuel Feder (Paul B. DeWolfe, Public Defender, on the brief), Baltimore, MD, for Appellant.
    Submitted by: Christopher Mason (Brian E. Frosh, Atty. Gen., on the brief), Baltimore, MD, for Appellee.
    Panel: Graeff, Kehoe, Lawrence F. Rodowsky (Senior Judge, Specially Assigned), JJ.
   Graeff, J.

David Deodatus Ndunguru, appellant, was convicted by a jury in the Circuit Court for Prince George’s County of robbery, assault in the second degree, and theft of property having a value of less than $100. The court imposed a sentence of ten years’ imprisonment, all but three years suspended, for the robbery conviction, to be followed by five years’ probation. The court merged the other convictions for sentencing purposes.

On appeal, appellant presents two questions for this Court’s review:

1. Did the circuit court err in sustaining the State’s objection to appellant’s testimony about a police officer’s statement of intent?
2. Did the circuit court err in asking the jury to resolve its inconsistent verdict sua spontel

For the reasons set forth below, we shall affirm the judgments of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND

On April 25, 2015, members of the Tanzanian community held a party at “Signature Blue,” an event venue in Beltsville, Maryland. Among the attendees were Andrew Ngatena and his friend, David Mwimanzi, who had been hired as the “disc jockey” (“DJ”) for the party.

During the party, Mr. Ngatena stood near Mr. Mwimanzi so he could observe him at work and learn “how to [DJ] the music.” At some point, Mr. Ngatena left “to grab a drink.” When he returned, appellant, whom he did not know, was standing near the DJ booth, impeding his path. Mr. Ngatena asked appellant to move, but appellant refused to do so. Mr. Ngatena then decided to go “outside to grab a smoke.” Although Mr. Ngatena was unable to recall precisely when he went outside to smoke, he estimated that the time was between 9:00 and 11:00 p.m.

Appellant followed Mr. Ngatena outside. At first, the two men engaged in conversation, but at some point, appellant “took offense” to something that Mr. Ngatena said and punched Mr. Ngatena in the face. Both men began throwing punches at each other. A second unknown man, who was standing behind Mr. Ngatena, then knocked Mr. Ngatena to the ground. A third man, whom Mr. Ngatena also did not know, joined the fight, and the three men kicked Mr. Ngatena repeatedly.

The assailants eventually stopped kicking Mr. Ngatena and began to walk away. At that point, Mr. Ngatena “started throwing the words at them,” prompting them to return and resume punching him. By then, Mr. Ngatena was struggling to retain consciousness, but he was able to “sense” that the three assailants began to rifle through his pockets, taking his cell phone, wallet, passport, and gold necklace. Finally, appellant and the two unknown assailants fled.

Shortly after appellant and his accomplices fled, Mr. Mwim-anzi was notified that his friend had been beaten and robbed. For the next few hours, Mr. Mwimanzi and others at the party attempted to contact appellant to recover the property taken from Mr. Ngatena and resolve the dispute without police involvement. Mr. Mwimanzi ultimately called the police, and Detective Ben Leach, a member of the Prince George’s County Police Department, responded to Signature Blue at approximately 2:46 a.m. on April 26.

Mr. Mwimanzi was acquainted with appellant because the two men had attended several events held by the tightly-knit Tanzanian community, where Mr. Mwimanzi had been a DJ and appellant had performed as a member of a three-man rap ensemble. Mr. Mwimanzi identified appellant to Detective Leach as one of the assailants. Detective Leach obtained a photograph of appellant and showed it to Mr. Ngatena, who identified appellant as the man who robbed him. An arrest warrant was issued for appellant.

Prior to appellant’s arrest on June 1, 2015, Mr. Ngatena contacted appellant via Facebook and telephone, attempting to obtain his stolen property. When Detective Leach learned of those attempts at communication with appellant, he advised Mr. Ngatena “not to contact” appellant, and Mr. Ngatena thereafter took that advice. Mr. Ngatena testified that, at one point, appellant called him. Mr. Ngatena’s property eventually was given to Mr. Mwimanzi, who returned it to Mr. Ngatena.

Appellant testified that he did not know Mr. Ngatena, did not see him the night of the incident, and he did not assault Mr. Ngatena or take his property. He denied that he ever called Mr. Ngatena.

The jury initially returned an inconsistent verdict, convicting appellant of second-degree assault and robbery but acquitting him of theft. As discussed in more detail, infra, the circuit court re-instructed the jury, advising it to continue its deliberations. The jury then convicted appellant of all three charges.

DISCUSSION

I.

Appellant contends that the circuit court erred in sustaining the State’s objection to his testimony that a police officer told him that they were going to search his cell phone to determine if he called Mr. Ngatena. Appellant concedes that this testimony was hearsay, but he argues that it was admissible pursuant to Maryland Rule 5—803(b)(3), a hearsay exception addressing, among other things, a “statement of the declarant’s then existing state of mind, ... offered to prove the declarant’s then existing condition or the declarant’s future action.” Appellant argues that the “police officer’s statement to [ajppel-lant—that he or she intended or planned to examine his phone to determine whether he or she had called [Mr.] Ngatena— was admissible to prove that the officer had acted in conformity with that plan.” He contends that excluding this testimony prejudiced his defense because testimony regarding the police officer’s intent to search his cell phone would have east doubt on the victim’s testimony, as well as bolstered his testimony.

The State argues that this claim is not preserved for this Court’s review because appellant failed to proffer below the relevance of the excluded testimony. In any event, it argues that appellant answered the question and the State did not move to strike the testimony from the record, and therefore, appellant suffered no prejudice as a result of the court’s ruling.

We begin our analysis by setting forth the relevant factual background. During appellant’s testimony, the following colloquy occurred:

[DEFENSE COUNSEL]: Okay. So is it your testimony that at no time did you assault Mr. Ngatena?
[APPELLANT]: No.
[DEFENSE COUNSEL]: Okay. And did you at any time take possession of any of his property?
[APPELLANT]: No.
[DEFENSE COUNSEL]: Okay. And at any time have you assisted or been asked to assist in the return retrieval of his property?
[APPELLANT]: No.
[DEFENSE COUNSEL]: Did you ever call him?
[APPELLANT]: No.
[DEFENSE COUNSEL]: And you spoke with the police. Correct?
[APPELLANT]: Yeah, after they came to arrest me.
[DEFENSE COUNSEL]: Okay. And you actually made a statement at the police station?
[APPELLANT]: I—when they came at my house to arrest me, they didn’t tell me why they are arresting me. So, when we got to the police station, that’s when they told me I’m arrested because I assaulted somebody.
[DEFENSE COUNSEL]: Okay. Did you offer your phone to them?
[APPELLANT]: Yeah. I gave them my phone.
[DEFENSE COUNSEL]: Did they—did anybody tell you they were going to search your phone to find out if you had called this person?
[APPELLANT]: Yeah.
[THE STATE]: Objection, Your Honor.
THE COURT: Sustained.
[DEFENSE COUNSEL]: Did they take your phone?
[APPELLANT]: Yeah.
[DEFENSE COUNSEL]: Did they give it back at some point?
[APPELLANT]: Yeah.
[DEFENSE COUNSEL]: No farther questions, Your Hon- or.

(emphasis added).

As the State points out, when the prosecutor objected to appellant’s testimony, and the court sustained that objection, appellant did not proffer the basis for the admissibility of the excluded testimony. At no time did appellant argue, as he does on appeal, that the testimony was admissible pursuant to Rule 5-803(b)(3).

“Ordinarily, a formal proffer of the contents and relevancy of the excluded evidence must be made in order to preserve for review the propriety of the trial court’s decision to exclude the subject evidence.” Merzbacher v. State, 346 Md. 391, 416, 697 A.2d 432 (1997). Accord Mack v. State, 300 Md. 583, 603, 479 A.2d 1344 (1984), abrogated on other grounds, Price v. State, 405 Md. 10, 949 A.2d 619 (2008). When “evi dence is inadmissible on its face and admissible only for a limited purpose or under some theory, the proponent must ... explain to the court how the evidence is admissible and why it should be received.” Randall v. State, 223 Md.App. 519, 557, 117 A.3d 91 (2015) (quoting In re Adoption/Guardianship Nos. CAA92-10852 and CAA92-10853, 103 Md.App. 1, 33, 651 A.2d 891 (1994)). Accord 5 Lynn McLain, Maryland Evidence, State and Federal, § 103:20 (May 2017) (“On appeal, the proponent cannot argue either that the evidence was admissible as nonhearsay or falls within a particular hearsay exception, unless the proponent made that particular argument below.”).

Here, as indicated, appellant failed to explain why the excluded testimony was admissible. Accordingly, this contention is not preserved for this Court’s review, and we decline to address it.

II.

Appellant’s second contention is based on the jury verdicts. On the second day of trial, the jury returned its initial verdicts, finding appellant guilty of assault in the second degree and robbery, but not guilty of theft. Defense counsel then requested the court to poll the jury. Prior to the conclusion of the polling, however, the circuit court interrupted the proceedings and convened a bench conference, where the following occurred:

THE COURT: How can it legally be guilty of robbery and not guilty of theft?
[DEFENSE COUNSEL]: I’m waiting on that answer. It’s inconsistent.
THE COURT: Okay? So, we can accept that factual inconsistent verdict, but I don’t think factually there is anything here.
This is a legally inconsistent verdict. Right?
[THE STATE]: Right.
THE COURT: So, I’m inclined to tell them that it can’t be. That’s if it’s guilty of robbery he must be guilty of theft.
[DEFENSE COUNSEL]: Of course my position is he is not guilty [of] theft. He is not guilty.
THE COURT: He must be—he must be not guilty of robbery?
[DEFENSE COUNSEL]: Right.
THE COURT: So, I will have them go back and continue their deliberation to reach a consistent verdict.
[DEFENSE COUNSEL]: I guess, for the record, again I would proffer that he has been acquitted of the theft. Therefore he must legally be acquitted of the robbery, and that leaves us—
THE COURT: He’s not acquitted or convicted of anything yet, because we haven’t accepted the verdict. So noted.
[DEFENSE COUNSEL]: Thank you, Judge.
THE COURT: Okay.

The circuit court then advised the jury that the verdicts it had reached, finding appellant guilty of robbery but not guilty of theft, were inconsistent, explaining that theft was part of robbery, i.e., robbery is a theft by force or threat of force. The court instructed the jury:

[Y]ou can’t have found him not guilty of theft but guilty of robbery. If he is guilty of robbery, he is also guilty of theft.
If he is not guilty of theft, he ... must be not guilty of robbery. Okay?
So, what I’m going to do is ask you to go back to the jury room and continue your deliberations and come up with a consistent verdict.

Fifteen minutes later, the jury came back with its verdict. It found appellant guilty of all charges: assault in the second degree, robbery, and theft. The jury was then polled and the verdict hearkened.

Appellant contends that the circuit court erred in sua sponte ordering the jury to reconsider its inconsistent verdict. He asserts that only the defendant can object to an inconsistent verdict, and because he did not do so, the proper remedy is to vacate the theft conviction.

The State contends that this claim is not preserved for this Court’s review because appellant’s “requested relief below was different [from] what he now argues on appeal.” Moreover, the State argues that the circuit court did not err in instructing the jury to resume its deliberations to resolve the inconsistent verdict because appellant did object to the inconsistency, and by asking the trial court to enter an acquittal as to the theft count, counsel was “signaling to the court that he wanted the jury to continue deliberating in the hopes that the inconsistency would be resolved in his favor.”

Until relatively recently, inconsistent verdicts of conviction and acquittal by a jury in a criminal case were permitted because the inconsistency could be the result of lenity. Travis v. State, 218 Md.App. 410, 446, 98 A.3d 281 (2014). In 2008, however, the Court of Appeals held that inconsistent verdicts would no longer be permitted in Maryland. Price, 406 Md. at 29, 949 A.2d 619. The concurring opinion written by Judge Harrell stated that the majority opinion applied only to “legally inconsistent verdicts,” not “factually inconsistent” verdicts. Id. at 36, 949 A.2d 619 (Harrell, J., concurring). The Court of Appeals subsequently confirmed this assertion, holding that, although legally inconsistent verdicts are no longer permissible, jury verdicts that are illogical or factually inconsistent are permitted in criminal trials. McNeal v. State, 426 Md. 455, 465-66, 44 A.3d 982 (2012). Accord Givens v. State, 449 Md. 433, 457-58, 144 A.3d 717 (2016).

The Court of Appeals has explained that factually inconsistent verdicts occur “ ‘where a jury renders different verdicts on crimes with' distinct elements when there was only one set of proof at a given trial, which makes the verdict[s] illogical’ ” Givens, 449 Md. at 454, 144 A.3d 717 (quoting Price, 405 Md. at 35, 949 A.2d 619 (Harrell, J., concurring)). Legally inconsistent verdicts, on the other hand, occur “where a jury acts contrary to a trial [courtj’s proper instructions regarding the law.” Id. (quoting Price, 405 Md. at 35, 949 A.2d 619 (Harrell, J., concurring)). Stated differently,

“[a] legal inconsistency ... occurs when an acquittal on one charge is conclusive as to an element which is necessary to[,J and inherent in[,J a charge on which a conviction has occurred. ... [I]f the essential elements of the counts of which the defendant is acquitted are identical and necessary to prove the count of which the defendant is convicted, then the verdicts are inconsistent. Verdicts of guilty of crime A but not guilty of crime B, where both crimes arise out of the same set of facts, are legally inconsistent when they necessarily involve the conclusion that the same essential element or elements of each crime were found both to exist and not to exist.”

Id. at 455, 144 A.3d 717 (quoting Price, 405 Md. at 37-38, 949 A.2d 619 (Harrell, J., concurring)).

Here, there is no dispute that the initial verdict, finding appellant not guilty of theft of property with a value less than $100 but guilty of robbery, was legally inconsistent. An essential element of both offenses was the taking of property, and if appellant was not guilty of taking the property, he could not legally be guilty of robbery. See Rudder v. State, 181 Md.App. 426, 467, 956 A.2d 791 (2008) (“Theft is a lesser included offense within the greater inclusive offense of robbery, for robbery is, by definition, a theft from the person accomplished by force or threat of force.”). Accord Smith v. State, 412 Md. 150, 166, 985 A.2d 1204 (2009) (“misdemeanor theft is a lesser included offense of robbery”).

As the circuit court noted, however, at the point that these initial inconsistent verdicts were announced, they had not been accepted by the court, and therefore, the jury verdicts were not final. See Givens, 449 Md. at 478, 144 A.3d 717 (“[A] jury’s verdict is final when the trial court accepts the verdict after the jury has hearkened to the verdict and/or been polled.”). Thus, defense counsel’s statement below, that appellant was entitled to an acquittal at that point, was incorrect, as appellant concedes on appeal. Id. at 479, 144 A.3d 717 (“[D]ouble jeopardy ... ‘prevents further deliberations on an acquittal only after [the] verdict is final.’ ”) (quoting Price, 405 Md. at 42 n.11, 949 A.2d 619).

The question, thus, is what was the proper course of action for the trial court to take, and specifically, did the circuit court err in sua sponte advising the jury to reconsider the inconsistent verdict? As explained below, we answer that second question in the affirmative and hold that a trial court may not, in the absence of a request from the defendant, advise a jury that its verdicts are inconsistent and send the jury back to resolve the inconsistency.

In McNeal, the Court of Appeals stated:

The discretionary power of the trial court to disallow inconsistent jury verdicts was delved into in Price, 405 Md. at 21, 949 A.2d at 626 (citing Mack v. State, 300 Md. 583, 599-600, 479 A.2d 1344, 1352 (1984)). Quoting from its opinion in Mack, the Court reiterated “it is the duty of a jury to decide a criminal case according to established rules of law, however, the trial court is empowered to set aside the verdict when the jury misapplies the law.” Id. Inconsistent jury verdicts are contrary to the law, “contrary to the trial court’s instructions,” and granting of relief “is within the discretion of the trial court.” Id.

426 Md. at 464, 44 A.3d 982. Similarly, this Court has stated

“It is a generally accepted rule that if the jury should return a verdict which is defective in form or substance, it should not be accepted by the trial judge. It is essential for the prompt and efficient administration of justice to prevent defective verdicts from being entered upon the records of the court as well as to ascertain the real intention of the jury in their finding. Where a verdict is ambiguous, inconsistent, unresponsive, or otherwise defective, it is the duty of the trial judge to call the jury’s attention to the defect and to direct them to put the verdict in proper form either in the presence of the court or by returning to their consultation room for the purpose of further deliberation.”

Bates v. State, 127 Md.App. 678, 699, 736 A.2d 407 (quoting Jenkins v. State, 59 Md.App. 612, 621, 477 A.2d 791 (1984)), cert. denied, 356 Md. 635, 741 A.2d 1095 (1999), overruled on other grounds, Tate v. State, 176 Md.App. 365, 933 A.2d 447 (2007).

In Givens, however, Judge Watts, writing for the majority of the Court of Appeals, stated that the “choice of whether to object to inconsistent verdicts belongs to the defendant alone,” and “the trial court may not, sua sponte, send the jury back to resolve the inconsistency.” 449 Md. at 476, 144 A.3d 717. The Court explained why a criminal defendant might want to object when a jury returns an inconsistent verdict:

A defendant has not only an opportunity, but in some cases an incentive, to object to inconsistent verdicts before the verdicts become final. Where a guilty verdict is inconsistent with a not-guilty verdict, the defendant might raise such an issue with the expectation that the trial court will send the jury back to resolve the inconsistency, and in hopes that the jury may find the defendant not guilty of both charges.

Givens, 449 Md. at 475, 144 A.3d 717. Sending inconsistent verdicts back to the jury, however, amounts to another “roll [of] the dice, double or nothing,” Tate v. State, 182 Md.App. 114, 134, 957 A.2d 640, cert. denied, 406 Md. 747, 962 A.2d 373 (2008). Thus,

[q]uite often[,] a defendant’s optimal choice will be to remain silent, thus waiving his [or her] challenge to the inconsistent verdicts and accepting the conviction that may be inconsistent. A defendant, aware of his or her guilt, or the overwhelming evidence of guilt, of all of the crimes of which he or she stands charged, may choose to accept the jury’s lenity. A defendant may be wise to accept the inconsistent conviction and accompanying sentence, rather than look a gift horse in the mouth. If the defendant objects to the inconsistent verdicts, the jury, given a second chance, may choose to remedy the error in a manner [that is] not in the defendant’s favor.

Givens, 449 Md. at 475-76, 144 A.3d 717 (quoting Price, 405 Md. at 40 n.9, 949 A.2d 619 (Harrell, J., concurring)).

To be sure, the issue presented in Givens was different. In that case, the circuit court accepted the inconsistent verdicts, and the Court of Appeals held that the defendant could not challenge those verdicts on appeal where he failed to object before the verdicts became final. Id. Given the Court’s specific statement that the trial court may not, without a request from the defense, “sua sponte, send the jury back to resolve the inconsistency,” id. at 476, 144 A.3d 717, however, we conclude that the circuit court erred in sua sponte sending the jury back to resolve the inconsistency in its initial verdicts.

That, however, is not the end of the inquiry. We still must address whether, based on the arguments made below, appellant is entitled to relief on appeal.

When the circuit court questioned how the verdicts initially reached were consistent, defense counsel agreed that the verdicts were inconsistent. He did not, however, object to the verdict or request the court to send the jury back to resolve the inconsistency. Rather, counsel requested an acquittal on the theft charge, which appellant now agrees was not warranted. When the court rejected that request and stated its intent to advise the jury to continue deliberating to reach a consistent verdict, defense counsel did not object.

In Givens, the Court of Appeals held that Givens “waived any issue as to allegedly inconsistent verdicts by failing to object before the verdicts bec[a]me final and the circuit court discharged the jury.” Id. at 486, 144 A.3d 717. It held that, “to preserve for review any issue as to allegedly inconsistent verdicts, a defendant in a criminal trial by jury must object ... before the verdicts are final and the trial court discharges the jury.” Id. at 486, 144 A.3d 717.

Again, we recognize that the issue presented in Givens was different. We conclude, however, that the same analysis applies here. For the same reason that an appellant who does not object to an inconsistent verdict is not entitled to appellate relief, a defendant who fails to object when the trial judge sua sponte instructs a jury to continue deliberating to reach a consistent verdict is not entitled to appellate relief. As Judge Watts explained in Givens, “one of the purposes of the requirement that a defendant preserve issues for review is to give a trial court the opportunity to correct any error in the proceedings.” Id. at 473, 144 A.3d 717. Accord Peterson v. State, 444 Md. 105, 126, 118 A.3d 925 (2015) (“ ‘Fairness and the orderly administration of justice is advanced by requiring counsel to 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.’ ”) (quoting Robinson v. State, 410 Md. 91, 103, 976 A.2d 1072 (2009)). If appellant had presented to the circuit court the argument he makes on appeal, the court may have decided not to advise the jury, over defense counsel’s objection, to reconsider its verdicts.

In this case, the court made clear its intent to resolve what everyone agreed were legally inconsistent verdicts by instructing the jury to continue to deliberate to reach a consistent verdict. At no time did defense counsel object or express disagreement with this intended action. He merely stated: “Thank you, Judge.” Under these circumstances, appellant’s contention on appeal that the court erred in sua sponte advising the jury to reconsider its verdicts is not preserved, and he is not entitled to relief on this ground. See Gilliam v. State, 331 Md. 651, 691, 629 A.2d 685 (1993) (“As [defendant] did not object to the course of action ... taken by the court, and apparently indicated his agreement with it, he cannot now be heard to complain that the court’s action was wrong.”), cert. denied, 510 U.S. 1077, 114 S.Ct. 891, 127 L.Ed.2d 84 (1994); Watkins v. State, 328 Md. 95, 99-100, 613 A.2d 379 (1992) (where party acquiesces in court’s ruling, there is no basis for appeal of that ruling), overruled on other grounds, Calloway v. State, 414 Md. 616, 996 A.2d 869 (2010). See also Tate, 182 Md.App. at 135, 957 A.2d 640 (“The defendant may not stand mute and later complain about the verdicts he did nothing to cure at the only time a cure was still possible.”). Accordingly, we decline to vacate appellant’s conviction for theft.

JUDGMENTS OF THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.

      . We note that, in the situation where a defendant is charged with felony theft, which was not the case here, the value of the property stolen is an element of the offense. Counts v. State, 444 Md. 52, 64, 118 A.3d 894 (2015). In that situation, theft is not a lesser included offense of robbery because each offense contains an element that the other does not, i.e„ felony theft requires proof of a taking of property in excess of a certain value and robbery requires proof of a use of force. See Jackson v. State, 141 Md.App. 175, 197, 784 A.2d 670 (felony theft and robbery do not merge under the required evidence test, but the rule of lenity required merging the sentence for felony theft because both convictions “were predicated on the taking of the same property from the same victim in a single incident”), cert. denied, 368 Md. 240, 792 A.2d 1177 (2001). As indicated, appellant was convicted, not of felony theft, but of theft of property with a value less than $100, and therefore, it was a lesser included offense of robbery.

        . Defense counsel did not, as the State suggests, "signal” to the court that counsel wanted the court to instruct the jury to continue deliberating to resolve the inconsistency. As discussed, infra, however, he did fail to object to the court’s stated intention to do so.

      . The dissenting opinion, written by Judge Greene, and joined by Judges Adkins and Battaglia, however, was of the view that a trial judge not only can address an inconsistent verdict sua sponte, but he or she “has a duty to remedy the problem with regard to inconsistent verdicts.” Givens v. State, 449 Md. 433, 493, 144 A.3d 717 (2016) (Greene, J., dissenting).

      . Appellant did not ask this Court to review the circuit court’s decision for plain error, and he gave no reason why he did not object to the court's instruction to the jury. Cf. Givens, 449 Md. at 481-82, 144 A.3d 717 (declining to engage in plain error review where Givens did not request it and did not argue that the failure to raise the argument that the verdicts were inconsistent was not a matter of trial tactics).