author: ZARNOCH, J.

text:
    142 A.3d 679
    Michael HANSBERGER v. Bradley SMITH, et al.
    No. 0378,
    Sept. Term, 2015.
    Court of Special Appeals of Maryland.
    July 27, 2016.

      Paul V. Jorgensen, Middletown, MD (Paul G. Griffin, Silver Spring, MD), on the brief, for Appellant.
    Kathleen M. McDonald (Kerr McDonald, LLP, Baltimore, MD), Allan A. Noble (G. Calvin Awkward, III, Budow and Noble, PC, Bethesda, MD, Jennifer L. Matzye, Greenspan, Hitzel & Schrader, Linthicum, MD), on the briefs, for Appel-lee.
    Panel: NAZARIAN, REED, ROBERT A. ZARNOCH (Retired, Specially Assigned).
   ZARNOCH, J.

On the night of July 8, 2008, appellant Michael Hansberger, and his friend, Ronald Lewis, attended two “field parties” in Frederick County where underage drinking occurred. At the second party, a brawl ensued, and Lewis threw a piece of concrete, striking Hansberger in the head and causing permanent injury. In 2011, Hansberger filed a complaint in the Circuit Court for Frederick County alleging, among other things, numerous counts of negligence against Lewis, the organizers of the parties, and the owners of the farms at which the parties were held. The appellees in the present case are Claudia Riley, Thomas Riley, Thomas Riley, Jr. and Travis Riley, (the Rileys), Charles Smith, Jane Smith, Wayne Smith, Catherine Smith, Bradley Smith (the Smiths), and Jefferson Valley, LLC, Marvin E. Ausherman, Ausherman Holding Corporation, and Ausherman Development Corporation II (the Smith property owners).

The Rileys filed a motion to dismiss the suit, or in the alternative, a motion for summary judgment. The Smiths and Jefferson Valley filed a motion for summary judgment, and the Smith property owners filed a motion to dismiss on the basis of limitations, or in the alternative, motion for summary judgment. After a hearing, the court granted the Rileys’ motion to dismiss, concluding that Hansberger had failed to articulate a breach of a duty under his theory of social host liability based on Md. Code (2002, 2012 Repl. Vol., 2014 Supp.), Criminal Law Art. (“CR”) § 10-117 or sustain his theory of premises liability. The court granted summary judgment for the Smiths and Jefferson Valley, finding no dispute of material fact, and no duty for the same reasons. Finally, the court dismissed the Smith property owners and Catherine Smith because Hansberger added them after the statute of limitations had run.

The case proceeded against Ronald Lewis, and Hansberger obtained a $12 million judgment against Lewis on April 22, 2015. Taking aim at the Rileys and the Smiths, Hansberger filed a timely appeal to this Court on April 27, 2015, and presents the following questions for our review:

I. “Whether [appellees] who hosted a high-risk ‘field party’ on their residential farms at which they negligently and illegally furnished alcoholic drinks to drunken, brawling teenagers had a duty of care to their guest who was maimed by such an inebriated minor?”
II. “Does the three year period of limitations under Maryland Code Courts and Judicial Proceedings Article § 5-101 accrue when the claimant had no knowledge or reason to know of the existence of additional [appel-lees] until he received discovery from the other [appel-lees]?”

After the circuit court granted judgment for appellees and the case was briefed and argued, the Court of Appeals issued its opinion in Kiriakos v. Phillips, 448 Md. 440, 139 A.3d 1006 (2016), which recognized a limited form of social host liability based on a violation of CR § 10-117. Because Hansberger did not allege or produce facts that showed a violation CR § 10-117 or that demonstrated appellees’ knowledge of similar brawls in the past, we hold that he has failed to show the breach of a duty of care owed to him. We also hold that, because Hansberger was aware of the nature of his injury in 2008, he could not properly add new defendants in 2013, two years after the statute of limitations expired. We affirm the circuit court.

BACKGROUND

The following information is taken from Hansberger’s allegations as set forth in his second amended complaint and from depositions taken during discovery. On the night of July 12, 2008, Travis Riley hosted a party at his home in the Jefferson area of Frederick County — many young adults attended, including highschoolers and those under the age of 21. Travis advertised the party on Facebook two days before the event and planned the music. The party was “bring your own beverage,” but one attendee brought a keg. Riley collected a fee from the attendees to drink from the keg. No member of the Riley family purchased any alcohol for the party.

The party took place in a field about 300 yards away from the family house on property that was owned by Travis’s parents, Thomas and Claudia Riley, After a fight broke out, Travis ejected the attendees, Travis did not advise his parents that he planned a party at the Riley property, nor did his parents provide him with permission to host a party. In fact, Claudia Riley specifically told Travis not to host a party. The Riley parents were not home at the time, and were unaware of the event until Claudia returned home as Travis was getting people to leave.

Bradley Smith was at the Rileys’ farm, and after Travis Riley started to ask people to leave his property, Bradley invited partygoers to his parents’ farm, about three miles away. He, however, did not extend a general invitation and did not specifically invite either Hansberger or Lewis. None of the members of the Riley family attended the party hosted by Bradley Smith later that night. Bradley Smith left the Riley property at approximately 11:30 p.m.

The Smith residence was owned by Jefferson Valley, LLC. Bradley Smith lived at a home on this property with his parents, Catherine and Wayne Smith. The area of the property where the party was held contained a demolished silo, and was strewn with bricks, rocks and cement pieces. The Smith party was also “bring your own beverage” and no alcohol was provided by Bradley Smith.

Hansberger and his friend, Ronald Lewis, attended the Riley party, drank, and left when Travis ended the party. Lewis then went to another friend’s house and continued to drink, until Hansberger picked him up to go to the Smith party, where they continued to drink. After Bradley Smith uttered what Lewis thought was a racist comment, Lewis punched Bradley, and a melee ensued. Most if not all of the attendees engaged in the fight, and some of the attendees threw bricks, rocks, and cement pieces found on the property grounds. Hansberger was injured shortly after 2:00 a.m., when he was hit in the head with a piece of cement while heading to the parked cars. Lewis initially admitted being the person who threw the cement. The police were called, and Lewis and other friends left the farm to take Hansberger to receive medical attention. Hansberger sustained permanent injuries. On February 11, 2009, Lewis plead guilty to reckless endangerment stemming from Hansberger’s injury at the Smith party.

None of the other Smith defendants, nor the corporate owners of the property, were aware of the party or that underage drinking was taking place on July 12, 2008. Bradley Smith’s grandparents, Charles and Jane Smith, lived several houses away from the Smith farm, and were not present at the farm that evening. Similarly, Bradley Smith’s parents, Wayne and Catherine Smith, were unaware of the party because they returned home around 11:00 p.m. on July 12, 2008, and went to sleep around 11:20 p.m. — before any of the partiers had arrived on their property.

Hansberger filed this action in the Circuit Court for Frederick County on July 12, 2011, three years after the events described above. He asserted various theories of negligence liability against Ronald Lewis, the Rileys, the Smiths, and the owner of the Smith property, Jefferson Valley, LLC. Following some initial discovery, on September 3, 2013, Hansberger amended his complaint to add Catherine Smith, Bradley Smith’s mother, Marvin E. Ausherman, Ausherman Holding Corporation, and Ausherman Development Corp. II,

All defendants filed dispositive motions. The Rileys filed a motion for dismissal, or, in the alternative, for summary judgment. The Smiths and Jefferson Valley filed a motion for summary judgment. Catherine Smith and the remaining Smith property owners filed a motion to dismiss on the basis of limitations, or in the alternative, a motion for summary judgment. Hansberger opposed all motions.

The circuit court held a hearing on April 17, 2014. The Rileys, the Smiths, and Jefferson Valley argued that Hansber-ger failed to allege or produce facts to support the existence of a duty of care. Hansberger responded that he properly alleged a cause of action in negligence, which was based on premises liability and social host liability. He also argued that there were disputed facts, and that no defendant was entitled to judgment as a matter of law. The defendants that were added in 2013 (Catherine Smith, Marvin E. Ausherman, Aush-erman Holding Corporation, and Ausherman Development Corporation II) argued for dismissal because Hansberger had added them to the action two years after the statute of limitations had run. Hansberger responded that he was permitted to sue these defendants under the discovery rule, because he had learned of them during discovery, and had added them shortly thereafter.

Ruling from the bench, the court dismissed the later-added defendants based on limitations. The court also granted summary judgment for Jefferson Valley, reasoning that Hans-berger had failed to articulate a duty owed to him. At the end of the hearing, the court took under advisement the motions to dismiss or for summary judgment with respect to the remaining defendants. On June 9, 2014, the court issued an opinion and order, dismissing the claims against the Riley defendants and granting summary judgment in favor of the Smith defendants. The court held that neither the Rileys nor Smiths breached a duty owed to Hansberger.

Hansberger then pursued his claims against the only remaining defendant in the case, Ronald Lewis. Lewis and Hansberger reached a settlement on Hansberger’s negligence claim, resulting in a judgment of $12.2 million against Lewis. Final judgment was entered on April 22, 2015. Hansberger noted his appeal of the order granting judgment for the Rileys and the Smiths on April 27,2015.

DISCUSSION

We review a trial court’s decision to grant a motion to dismiss for failure to state a claim for legal correctness. Rounds v. Md.-Nat’l Capital Park & Planning Comm’n, 441 Md. 621, 635-36, 109 A.3d 639 (2015). In considering an appeal from that early stage, we assume the truth of those facts and allegations in the complaint, and all inferences reasonably drawn therefrom. Id. at 636, 109 A.3d 639.

On appeal from the grant of summary judgment, we “independently review the record” to ascertain whether there is a genuine dispute of material fact and, “if not, whether the moving party is entitled to judgment as a matter of law.” Wells Fargo Home Mortg., Inc. v. Neal, 398 Md. 705, 714, 922 A.2d 538 (2007) (Citation and internal quotation marks omitted). We consider “the record in the light most favorable to the nonmoving party and construe any reasonable inferences that may be drawn from the facts against the moving party.” Myers v. Kayhoe, 391 Md. 188, 203, 892 A.2d 520 (2006) (citing Livesay v. Baltimore, 384 Md. 1, 9, 862 A.2d 33 (2004)). However, a plaintiffs claim must be supported by more than a “scintilla of evidence[,]” i.e., “there must be evidence upon which [a] jury could reasonably find for the plaintiff.” Blackburn Ltd. P’ship, 438 Md. at 108, 90 A.3d 464 (quoting Beatty v. Trailmaster Products, Inc., 330 Md. 726, 738-39, 625 A.2d 1005 (1993)).

“Ordinarily, an appellate court should review a grant of summary judgment only on the grounds relied upon by the trial court.” Blades v. Woods, 338 Md. 475, 478, 659 A.2d 872 (1995) (citing Md. Rule 8-131(a) (“Ordinarily, the appellate court will not deeide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court”)). This does not mean, however, that we can only affirm the trial court using the reasoning — instead, the issue merely needs to have been raised and decided below. See Conaway v. Deane, 401 Md. 219, 243-44, 932 A.2d 571 (2007) (“[I]f two or more similar and ‘inextricably intertwined’ grounds for summary judgment exist, this Court may consider alternatively any related ground, if raised properly by the litigant in his, her, or its motion for summary judgment, if we find fault with the ground relied upon facially by the trial court”), abrogated on other grounds by Obergefell v. Hodges, — U.S. —, 135 S.Ct. 2584, 192 L.Ed.2d 609 (2015).

I. Negligence

Hansberger argues that the Rileys, Smiths, and owners of the Smith property were negligent due to their breach of a duty resulting from either social host liability or premises liability. Regarding social host liability, Hansberger argues that the appellees breached a general duty of care evidenced by the General Assembly’s enactment of CR § 10-117. Regarding premises liability, Hansberger argues that the appel-lees breached their duty to keep the property safe and warn about known dangers, i.e., the rubble strewn about the Smith farm. We address each contention in turn.

A. Social Host Liability

To state a negligence claim, a plaintiff must establish four elements: “a duty owed to him (or to a class of which he is a part), a breach of that duty, a legally cognizable causal relationship between the breach of duty and the harm suffered, and damages.” Jacques v. First Nat’l Bank of Md., 307 Md. 527, 531, 515 A.2d 756 (1986). Under the “Statute or Ordinance Rule,” the violation of an ordinance or statute may establish a prima facie case in negligence. Blackburn Ltd. P’ship v. Paul, 438 Md. 100, 111-13, 90 A.3d 464 (2014). To invoke the rule, the plaintiff must: (1) show “the violation of a statute or ordinance designed to protect a specific class of persons[ ], and [ (2) ] that the violation proximately caused the injury complained of.” Id. at 112, 90 A.3d 464 (Citations and internal quotation marks omitted). Even if a statutory violation has not occurred, the existence of a statute may provide a basis for a duty of care. Kiriakos, 448 Md. at 474-80, 486-87, 139 A.3d 1006.

In Kiriakos v. Phillips, the Court of Appeals recognized the existence of a narrow form of negligence liability on the basis of a violation of CR § 10-117(b). Id., 448 Md. at 455-56, 139 A.3d 1006. Because CR § 10-117(b) “holds adults criminally responsible for underage drinking under specific circumstances,” the Court determined that the law satisfied the first step to establishing a prima facie case in negligence because it identified “a specific class that the General Assembly sought to protect: underage people exposed to alcohol.” Id., 448 Md. at 460, 139 A.3d 1006.

Under the second step, a plaintiff must demonstrate “that the violation proximately caused the injury complained of.” Blackburn, 438 Md. at 112, 90 A.3d 464 (Citations and internal quotation marks omitted). To establish proximate cause in this context, Hansberger must show that he “is within the class of persons sought to be protected [by the statute], and [that] the harm suffered is of a kind which the drafters intended the statute to prevent.” Id. (Citations and internal quotation marks omitted).

The Court held that underage drinkers are within the class that the statute was designed to protect, and that the law was designed to protect these underage drinkers from the risky behavior associated with such drinking. Id., 448 Md. at 463-64, 139 A.3d 1006. Thus, in order to establish a prima facie case of negligence, Hansberger had to demonstrate that the appellees violated CR § 10-117(b). In this case, he must have alleged that an adult “knowingly and willfully allow[ed] an individual under the age of 21 years actually to possess or consume an alcoholic beverage at a residence, or within the curtilage of a residence that the adult owns or leases and in which the adult resides.” CR § 10-117(b).

The Kiriakos Court also recognized the existence of another theory of negligence liability — one established by the breach of a common law duty of care, which in turn is based on the strong public policy underlying CR § 10-117(b). Id., 448 Md. at 475-77, 139 A.3d 1006. The Court analogized its reasoning to that embodied in negligent entrustment cases. Id., 448 Md. at 480-84, 139 A.3d 1006. Applying common law negligence principles to decide questions of duty under the common law, the Court also considered:

the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered the injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise reasonable care with resulting liability for breach, and the availability, cost and prevalence of insurance for the risk involved.

Id., 448 Md. at 486, 139 A.3d 1006 (quoting Ashburn v. Anne Arundel Cnty., 306 Md. 617, 627, 510 A.2d 1078 (1986)).

As the basis for a common law duty, the Court acknowledged “the strong public policy underlying CR § 10— 117(b),” which represented “the General Assembly’s determination that underage persons have a diminished ability to handle alcohol and adults should not facilitate minors’ consumption in the adult’s homes, save the narrow exceptions in the statute.” Id., 448 Md. at 477, 139 A.3d 1006. Distinguishing the breach of a duty of care in the context of CR § 10-117(b) from dram shop liability, at issue in of Warr v. JMGM Group, LLC, 433 Md. 170, 70 A.3d 347 (2013), the Court observed that “an adult only violates CR § 10 — 117(b), if he ‘knowingly and willfully allow[s]’ an underage person to possess or consume alcohol at his home.” Id., 448 Md. at 478, 139 A.3d 1006. Important for our consideration of the issues here, this “knowing and willful standard” is a predicate for the limited social host liability. Id., 448 Md. at 478, 139 A.3d 1006.

“Knowing” can be defined as either actual knowledge — “an actual awareness or an actual belief that a fact exists” — or willful blindness — a deliberate avoidance of making a reasonable inquiry with a conscious purpose to avoid learning whether a fact exists. See id., 448 Md. at 478, n. 44, 139 A.3d 1006, n. 44; State v. McCallum, 321 Md. 451, 458, 583 A.2d 250 (1991) (Chasanow, J., concurring). A “willful” act is one that is “committed intentionally, rather than through inadvertence.” Kiriakos, 48 Md. at 478, n. 44, 139 A.3d 1006, n. 44 (quoting Deibler v. State, 365 Md. 185, 195, 776 A.2d 657 (2001)) (Internal quotation marks omitted). As the Court noted: “the terms ‘knowing’ and ‘willful’ are not usually paired with negligence. But nothing prevents us from superimposing this requirement on a cause of action for social host liability sounding in negligence where an integral statute on which the negligence depends makes knowledge and willfulness pivotal for culpability.” Id., 448 Md. at 479, 139 A.3d 1006 (citing Ghassemieh v. Schafer, 52 Md.App. 31, 40, 447 A.2d 84 (1982)).

From the text of CR § 10~117(b) and the Court’s explication in Kiriakos, it is clear that, to create a duty of care to a third party injured by the minor, an adult must intentionally and with some knowledge allow alcohol to be served to an underage person. It is helpful to review the circumstances set forth in Kiriakos to understand why the Court imposed liability in that case, and why we decline to do so here.

Kiriakos involved two unrelated incidents in which a third party was injured after a minor lost control of a vehicle he was driving while intoxicated. In one incident, a parent knew that friends of her child were drinking in her garage and allowed the intoxicated minor to drive home, even though other teenagers expressed concerns about his ability to drive safely. Kiriakos, 448 Md. at 450-52, 139 A.3d 1006. A passenger riding in the flatbed of the truck was thrown from the truck and killed when the intoxicated minor struck a barrier. Id.

In the other incident that the Court considered, a 25-year-old supplied alcohol to a person under the age of 21, who was at his house for a celebration. The adult knew that the underage person was 18, that he had driven to the adult’s house and would have to drive to leave, and that the person had too much to drink. Kiriakos, 448 Md. at 452-54, 139 A.3d 1006. The 25-year-old told the underage person that he could leave “whenever he was ready” if he “was sure that he was going to be able to drive.” Id. After waiting some time, the 18-year-old left the home in his vehicle in the early morning, and struck and severely injured a woman walking her dog on the sidewalk. Id,

By contrast, the adults (Claudia and Thomas Riley, and Jane, Charles, Catherine, and Wayne Smith) did not knowingly or willfully allow minors to drink alcohol on their respective properties. With regard to the circuit court’s dismissal of the claims against the Rileys, Hansberger did not allege any facts to show the mental state of the appellees, instead relying on conclusory statements that the Rileys knew or should have known that minors were drinking alcohol and that the Rileys negligently allowed their children to host the party. Neither allegation supports the willful element of CR § 10 — 117(b). The circuit court was correct in determining that Hansberger did not allege a duty of care supported by CR § 10-117(b) with regard to the Rileys.

Hansberger’s claims against the Smiths fail for similar reasons — even when we consider “the record in the light most favorable to the nonmoving party and construe any reasonable inferences that may be drawn from the facts against the moving party,” Myers, 391 Md. at 203, 892 A.2d 520 (citing Livesay, 384 Md. at 9, 862 A.2d 33), because Hansberger’s claim must be supported by more than a “scintilla of evidence^” i.e., “there must be evidence upon which [a] jury could reasonably find for the plaintiff.” Blackburn Ltd. P’ship, 438 Md. at 108, 90 A.3d 464 (quoting Beatty, 330 Md. at 738-39, 625 A.2d 1005).

In depositions, the Smiths denied any knowledge of the party in their bam and denied allowing minors to drink alcohol on their premises. Hansberger argues that the Smiths should have known about the party, because Jane Smith said she had heard noise from other parties in the past. However, even accepting this fact and all reasonable inferences from it, Hansberger has failed to produce facts that demonstrate any willfulness on the part of the Smiths. Hansberger has not provided more than scintilla of evidence indicating that the Smiths’ knowingly and willfully allowed minors to drink alcohol on their property. We determine that there is no genuine dispute of material fact, and that Hansberger failed to produce facts sufficient to bring the case to the fact finder on the issue of the Smiths’ breach of a duty of care. Although the circuit court did not have the guidance of the Court of Appeals’s decision in Kiriakos, the court correctly determined that CR § 10-117 did not provide a basis for negligence liability in this case. We, thus, affirm the circuit court in this regard.

B. Premises Liability

A judgment in negligence based on premises liability provides relief to plaintiffs who are subjected to dangerous conditions on an establishment’s premises. Troxel v. Iguana Cantina, LLC, 201 Md.App. 476, 491, 29 A.3d 1038 (2011). “This cause of action is based on common law principles of negligence and derives from an establishment’s lack of supervision, care, or control of the premises.” Id. at 493, 29 A.3d 1038 (citing Restatement (Second) of Torts § 344 (1965)). All landowners who open their land to the public for business are required to use reasonable care in the supervision, maintenance, or control of the premises, and may even be required to protect against the criminal acts of third persons. Id. (citing Dan B. Dobbs, 2 The Law of Torts § 324 at 876 (2001)).

The owner of a property will be liable to invitees in negligence if “(1) the [owner] controlled the dangerous or defective condition; (2) the [owner] had knowledge or should have had knowledge of the injury causing condition; and (3) the harm suffered was a foreseeable result of that condition.” Veytsman v. New York Palace, Inc., 170 Md.App. 104, 116, 906 A.2d 1028 (2006) (quoting Hemmings v. Pelham Wood Ltd. Liab. Ltd. P’ship, 375 Md. 522, 537, 826 A.2d 443 (2003)).

Hansberger argues that the appellees are liable under a theory of premises liability, and asserts that the Court of Appeals’s decision in Scott v. Watson, 278 Md. 160, 359 A.2d 548 (1976), as well as this Court’s decisions in Corinaldi v. Columbia Courtyard, Inc., 162 Md.App. 207, 873 A.2d 483, cert. dismissed, 389 Md. 124, 883 A.2d 914 (2005) and Troxel v. Iguana Cantina, LLC, 201 Md.App. 476, 29 A.3d 1038 (2011) provide a basis for his relief. Each case, however, is distinguishable because the property owner knew or should have known about the dangerous conditions prior to an injury occurring and because the resulting harm was foreseeable.

In Scott, a landlord received numerous complaints about criminal activity in the parking garage of an apartment building, but failed to take any action to secure the property. After a victim was shot and killed by an unknown assailant in the garage, the Court of Appeals determined that the landlord could be liable in negligence, holding that “[i]f the landlord knows, or should know, of criminal activity against persons or property in the common areas, he then has a duty to take reasonable measures, in view of the existing circumstances, to eliminate the conditions contributing to the criminal activity.” Scott, 278 Md. at 169, 359 A.2d 548. In Corinaldi v. Columbia Courtyard, Inc., a person was shot at a hotel party by an unrelated third party. 162 Md.App. at 213, 873 A.2d 483. There was evidence that a hotel employee was informed about the person with a gun approximately 10 minutes before the shooting and could have acted upon that information to protect the guests by calling the police immediately. 162 Md.App. at 226, 228, 873 A.2d 483. In Troxel, we determined that a nightclub had a duty to take precautions against assaults that occurred during “college nights” where there was evidence that numerous prior incidents of violence during these events. 201 Md.App. at 498-99, 29 A.3d 1038. In sum, a duty is imposed on a landowner to eliminate conditions that contribute to criminal activity if the landowner had prior knowledge of similar criminal activity — as evidenced by past events— occurring on the premises. See Corinaldi, 162 Md.App. at 223 & n. 5, 873 A.2d 483 (2005).

Regarding the dismissal of Hansberger’s claims against the Rileys, we view his allegations in the light most favorable to him — we, thus, consider Hansberger to be an invitee to the premises. In this case, no injury occurred on the Riley property, so the circuit court properly dismissed claims in negligence against the Rileys based on premises liability. See Veytsman, 170 Md.App. at 116, 906 A.2d 1028 (requiring plaintiff to allege that the defendant property owner controlled the dangerous condition).

With regard to the Smiths, we do not consider the existence of rubble on the Smith farm to be a dangerous condition upon which liability can be based. The injury, in this case, was the result of an intentional criminal act by a third party, Lewis, and was not the result of an accident resulting from the debris or poor lighting. Under Troxel, because Lewis’s intentional act caused Hansberger’s injury, Hansberger was required to produce some evidence that the Smiths knew that prior criminal conduct had taken place at their farm.

Here, Bradley Smith stated in his deposition that scuffles had occurred at previous parties. However, there was no evidence of previous criminal complaints and no indication that anything like the large-scale brawl that precipitated Hansberger’s injuries had occurred before at the Smith farm. Unlike the owners of the nightclub in Troxel, the Smiths did not have knowledge of past criminal activity that would have created a duty to protect Hansberger from being injured by Lewis. Discerning no dispute of material fact with regard to the Smiths’ knowledge, we affirm the circuit court’s grant of summary judgment for the Smith appellees.

II. Dismissal of Late Added Defendants

Hansberger also argues that court erred in dismissing his complaint against the Smith property owners and Catherine Smith based on limitations. He avers that because he learned about the existence of these parties through discovery in 2012, his claims against them were filed well before the three-year statute of limitations set out in Maryland Code (1974, 2013 Repl. Vol.), Courts & Judicial Proceedings Article § 5-101.

The discovery rule, applicable to all civil actions, “tolls the accrual of the limitations period until the time the plaintiff discovers, or through the exercise of due diligence, should have discovered, the injury.” Windesheim v. Larocca, 443 Md. 312, 326-27, 116 A.3d 954 (2015) (quoting Frederick Rd. Ltd. P’ship v. Brown & Sturm, 360 Md. 76, 95-96, 756 A.2d 963 (2000)) (Emphasis added) (Internal quotation marks omitted). A plaintiff is not permitted to add a new defendant to a case after the limitations period has expired except to correct the name of a defendant. Talbott v. Gegenheimer, 237 Md. 62, 63, 205 A.2d 285 (1964); see Grand-Pierre v. Montgomery County, 97 Md.App. 170, 176, 627 A.2d 550 (1993).

Here, Hansberger was not correcting a misnomer of a defendant who already had notice of the suit. Instead, he sought to add several new defendants — parties that, with due diligence, he could have included in his original complaint. We affirm the judgment of the circuit court.

JUDGMENT OF THE CIRCUIT COURT FOR FREDERICK COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.

      . The initial complaint did not name Catherine Smith, Marvin E. Ausherman, Ausherman Holding Corporation, or Ausherman Development Corporation II as defendants. Hansberger filed a second amended complaint on September 3, 2013.

      . CR § 10-117 prohibits a person from knowingly furnishing alcohol to a minor and prohibits an adult from knowingly and willfully allowing a minor to possess or consume an alcohol at a residence that he or she owns or leases and in which he or she resides. This statute is discussed more fully infra, at 15-18, 142 A.3d at 687-89.

      . Hansberger alleges that “up to 150 people” attended the party. Deposition testimony indicated that more than 40 people were in attendance.

      . Thomas Riley, Jr., Travis's older brother, briefly attended the party, but did not drink.

      . The Smiths described the ownership of their farm in the following manner:
      When the Smith Farm was sold to Jefferson Valley in March 2003, Wayne Smith, Catherine Smith, and Bradley Smith were still living in the house on the Smith Farm. Because Appellee Jefferson Valley, LLC, was not, as of the date of the conveyance, ready to develop the Smith Farm, Jefferson Valley allowed Wayne Smith, Catherine Smith, and Bradley Smith to remain on the Smith Farm and occupy the farm house. All three continued to reside on the Smith Farm through at least July 12, 2008, pursuant to an informal understanding with the owner that Wayne Smith would continue to live in the farm house and serve as caretaker of the property.

      . Hansberger also asserted counts of assault and battery against Lewis.

      . The violation of a statute (or ordinance) is considered evidence of negligence, but is not negligence per se. After a violation is established, the fact-finder must still determine whether the defendant acted reasonably under all the circumstances. Hous. Auth. of Baltimore City v. Woodland, 438 Md. 415, 441, 92 A.3d 379 (2014) (quoting Brooks v. Lewin Realty III, Inc., 378 Md. 70, 85 n. 5, 835 A.2d 616 (2003)).

      . CR § 10-117(b) provides that "an adult may not knowingly and willfully allow an individual under the age of 21 years actually to possess or consume an alcoholic beverage at a residence, or within the curtilage of a residence that the adult owns or leases and in which the adult resides.”

      . Similarly, it was undisputed that employees of Jefferson Valley had no knowledge of the field party that occurred on July 13, 2008, and Hansberger produced no evidence that Jefferson Valley willfully allowed minors to consume alcohol on the property. Further, CR § 10-117(b) requires that an adult “reside” on the property where the underage drinking occurred, in order for that adult to be liable, Jefferson Valley was not "residing” on the Smith farm, even though it owned the property. We, thus, affirm the court’s grant of summary judgment for Jefferson Valley, LLC, on the ground of social host liability.

      . Hansberger also argues that he stated a negligence claim on the basis of a violation of subsection (a) of CR § 10-117, which states that
      a person may not furnish an alcoholic beverage to an individual if: (1) the person furnishing the alcoholic beverage knows that the individual is under the age of 21 years; and

        (2) the alcoholic beverage is furnished for the purpose of consumption by the individual under the age of 21 years.
      Although the Court in Kiriakos did not decide whether CR § 10-117(a) created a duty to a third party independent of that created by CR § 10— 117(b), we hold that, under these circumstances, it would not.
      In defining the public policy underlying the General Assembly's enactment of CR § 10-117, the Court emphasized the "knowing and willful” nature of a violation of the statute. See Kiriakos, 448 Md. at 455, 139 A.3d 1006 ("we hold that there exists a limited form of social host liability sounding in negligence — based on the strong public policy reflected in CR § 10-117(b), but that it only exists when the adults in question act knowingly and willfully, as required by the statute”); id., 448 Md. at 468, 139 A.3d 1006 (requiring a "finding that the social host defendant knowingly and willfully allowed a member of the protected class to consume alcohol on the host's premises in violation of the statute”).
      The Court viewed the “knowing and willful standard as a predicate for the limited social host cause of action.” Id., 448 Md. at 478, 139 A.3d 1006. Furthermore, the Court underscored that "that what is blameworthy here is not merely that an underage person drinks alcohol on an adult’s property, but that, as stated in CR § 10-117(b), the adult 'knowingly and willfully ' " allows an underage person to drink on the premises. Id., 448 Md. at 489, 139 A.3d 1006 (Emphasis added). It is inconceivable that the Court would take such pains to carefully circumscribe its holding if subsection (a) — which requires a mental state of mere knowledge and does not confine a violation to an adult’s residence — could be interpreted to confer open-ended liability. For this reason, a violation of subsection (a) alone does not create a cause of action for negligence.

      . We also affirm the court’s grant of summary judgment for Jefferson Valley, LLC, on premises liability. It was undisputed that Jefferson Valley was not occupying the Smith farm, and that it had no knowledge of the field party that occurred on July 13, 2008 or any previous violent activity.


source: Caselaw Access Project

author: WOODWARD, J.

license: Public Domain

text:
    142 A.3d 692
    Marcus Allen GROSS v. STATE of Maryland.
    No. 727,
    Sept. Term, 2015.
    Court of Special Appeals of Maryland.
    July 27, 2016.

      Mark Colvin (Paul B. DeWolfe, Public Defender, on the brief), Baltimore, MD, for Appellant.
    Todd W. Hesel (Brian E, Frosh, Atty. Gen., on the brief), Baltimore, MD, for Appellee.
    Panel: WOODWARD, FRIEDMAN, J. FREDERICK SHARER (Retired, Specially Assigned), JJ.
   WOODWARD, J.

A jury in the Circuit Court for Prince George’s County convicted Marcus Allen Gross, appellant, of the commission of a theft scheme of property valued over $100,000, theft of property valued between $10,000 and $100,000, and conspiracy to commit theft of property valued over $100,000. Appellant noted this appeal and presents two questions for our review:

1. Did the trial court err in admitting GPS [global positioning system] records and testimony based upon those records?
2. Did the trial court commit plain error in instructing the jury on the elements of the crime of theft scheme?

For the reasons that follow, we answer both questions in the negative and affirm the judgments of the circuit court.

BACKGROUND

Harry Eklof & Associates (“Eklof’) distributes heating and plumbing supplies on the East Coast. The company is located at 3401 Pennsy Drive in Landover, Maryland, which is near 75th Avenue, East West Highway, and Route 50. At this location, the company has a warehouse that contains on any given day millions of dollars worth of inventory, including over $5 million in copper materials. Richard Jenkins, Eklof s operations manager, stated that the warehouse opens Monday through Friday at 6:00 a.m. for the company’s drivers, and the warehouse employees arrive for work at 7:00 a.m. Although the warehouse remains open until 5:00 p.m., most warehouse employees leave by 3:45 p.m. In 2012, the company had approximately sixty employees, including two drivers. The company hired appellant as a warehouse employee in February 2012.

In July 2012, Eklof conducted its annual inventory. Jenkins testified that the company was “[a] little short, but nothing to raise a major concern.” In early November 2012, however, the company encountered a problem: employees reported shortages of copper fittings that the company’s computer records indicated should have been in abundant supply. Jenkins conducted his own inventory and determined that 506 cartons of copper fittings, weighing a total of 19,065 pounds, were missing, meaning a loss to the company of $263,078.10. Concerned, Jenkins had video surveillance installed in the warehouse to monitor the company’s copper.

Shortly after installation of the surveillance, Jenkins reviewed the footage from November 19, 2012. The footage showed Terrence Mason, one of the company’s drivers, take copper from the warehouse, place it in his personal vehicle, and drive away, Jenkins decided to continue his observations to determine if Mason was acting alone.

The Monday after Thanksgiving, November 26, 2012, Jenkins arrived at the warehouse early, hid his vehicle, and concealed himself in a position from which he could observe the employee parking lot. From his hiding spot, Jenkins witnessed Mason arrive at the warehouse and place several cartons of copper fittings in his personal vehicle. Jenkins summoned police, and Mason was arrested at the warehouse. Shortly after 7:00 a.m. on the same day, appellant called Jenkins to say that he would be absent that day because he could not find a babysitter for his son. Appellant called with the same excuse the following day. On the next day, appellant gave the same excuse and told Jenkins he would re-apply for his job “after he got everything taken care of,” but he never contacted Jenkins again.

Detective Jeffrey Higgins of the Prince George’s County Police Department was the lead investigator of the case. He ran the names of Eklofs employees through the Regional Automated Property Information Database (“RAPID”), which tracks pawn shop sales and scrap metal transactions. Appellant “stood out” to Detective Higgins because appellant scrapped a large amount of copper number 1. Between May 1, 2012, and November 26, 2012, appellant completed ten scrap transactions — five at Joseph Smith & Sons, Inc. (“Smith”), and five at Ultra Recycling, Inc. (“Ultra”). In total, appellant scrapped 408 pounds of copper number 1 for $1,118.80 at Smith and 3,980 pounds of copper number 1 for $11,433 at Ultra. Brian Benko, an information officer at Smith, testified that copper number 1 is rare in scrapping transactions because it is new and unused.

Benko also explained that, before a customer scraps metal, his company, as well as other scrap yards, document the scrapper’s driver’s license and license plate number. In examining the scrap records, Detective Higgins noticed that appellant usually drove his personal vehicle to the scrap yards, but, on two occasions, appellant drove a white box truck with Maryland tag number 71T531. Detective Higgins searched for this license plate in RAPID and discovered more scrap transactions completed by Jeff Ragland, appellant’s cousin.

Ragland worked for the Schindler Elevator Company (“Schindler”) as a driver. Ragland conducted eleven scrapping transactions with Ultra in which he sold a total of 6,846 pounds of copper number 1 for $16,689.50, and three sales with East Coast Metals, LLC (“East Coast”) totaling 3,965 pounds of copper number 1 for $10,675.

Tom Tritle, the supervisor for repairs and truck teams at Schindler, testified that the company’s drivers drove Ford F-550s or Isuzu box trucks. A driver’s duties would be to make deliveries to work sites. Tritle stated that drivers would sometimes scrap metal taken from a site, but Schindler had a contract with PG Scrap for this business. Drivers are also required to keep a log of their work travels, indicating the time they were at particular locations.

Unbeknownst to the drivers, Schindler installed GPS units on its vehicles in July 2012. Tritle monitored the GPS information and occasionally compared the GPS data with the drivers’ logs for accuracy. At trial, the State introduced through Tritle the records of GPS data for Ragland’s truck, a white Isuzu box truck with Maryland tag number 71T531. The State asked Tritle to (1) read the date, time and address from the GPS records for certain dates, and then (2) highlight the entries that he read. The complete GPS records, with the highlighted entries, were introduced as an exhibit under the business records exception to the hearsay rule. See Md. Rule 5-803(b)(6). The GPS data indicated that on the days where the truck was used in scrap transactions, it would generally be at or near Eklofs warehouse at some point shortly before being at or near one of the scrap yards. Indeed, Detective Higgins testified that the GPS data revealed that “[t]here seems to be a pattern” of the truck going to Eklof and then to one of the scrap yards. Tritle testified that appellant was not an employee of Schindler and thus was not authorized to drive the box truck. Tritle also stated that Schindler had no business dealings with Eklof; Jenkins said the same.

Mason testified as part of a plea deal. He stated that, sometime in September 2012, appellant approached Mason and said he had a way to make some extra money. Appellant offered Mason $200 if he would be a lookout while appellant took copper. Appellant identified Ragland and Ragland’s truck as the vehicle that took the copper from Eklof s warehouse. As to the November 19th and 26th incidents, Mason testified that he worked alone and sold the copper to a friend for drug money.

The jury convicted appellant of a theft scheme of property valued over $100,000, theft of property valued between $10,000 and $100,000, and conspiracy to commit theft of property valued over $100,000, but acquitted him of theft of property valued over $100,000, theft of property valued between $1,000 and $10,000 as to the November 26, 2012 incident, and theft of property valued between $1,000 and $10,000 as to the November 19, 2012 incident. The circuit. court merged appellant’s conviction for theft into the conviction for theft scheme and sentenced appellant to a prison term of 26 years and a consecutive sentence of 26 years, suspending all but 20 years, for the conspiracy conviction, with five years of probation. Appellant was also ordered to pay $188,000 in restitution.

We will discuss more facts as necessary below.

DISCUSSION

I. The GPS Data

Appellant contends that the trial court erred in admitting the records of GPS data and testimony based on those records related to the box truck. The GPS records were admitted over objection during the direct examination of Tritle. Appellant argues that, in order for the circuit court to admit the GPS records, the State needed to offer expert testimony, because the GPS records are similar to cell phone geolocation data. According to appellant, although people are more familiar now with GPS technology because of smart phones and car navigation systems, the court still needed someone with specialized training and experience to testify as to the GPS data contained in the records. In particular, appellant argues that an expert was needed to testify as to, among other things, how GPS satellites work, how the system was installed in the truck, how frequently the system transmits data, and how often the GPS data is inaccurate.

The State counters that no expert testimony was necessary for the admission of the records of GPS data. The State argues that the GPS data is different from cell phone geolocation data. According to the State, whereas the testifying witnesses in the cell phone cases use specialized training and experience to interpret the records, Tritle was not using any sort of expert knowledge to read the GPS records. Furthermore, the State asserts that jurors could readily understand the GPS data in this case, and no expert was, therefore, necessary.

The Court of Appeals has noted: “ ‘It is frequently stated that the issue of whether a particular item of evidence should be admitted or excluded is committed to the considerable and sound discretion of the trial court....’” State v. Simms, 420 Md. 705, 724, 25 A.3d 144 (2011)(quoting Ruffin Hotel Corp. of Md., Inc. v. Gasper, 418 Md. 594, 619, 17 A.3d 676 (2011)). Furthermore, “ ‘[b]road discretion is vested in the trial court with regard to expert testimony, and that discretion will not be disturbed on appeal absent an error of law or fact, a serious mistake, or clear abuse of discretion.’ ” Johnson & Higgins of Penn., Inc. v. Hale Shipping Corp., 121 Md.App. 426, 444, 710 A.2d 318 (quoting Braxton v. Faber, 91 Md.App. 391, 396, 604 A.2d 543 (1992)), cert. denied, 351 Md. 162, 717 A.2d 385 (1998). A court abuses its discretion where “ ‘a trial judge exercises discretion in an arbitrary or capricious manner or when he or she acts beyond the letter or reason of the law.’ ” Kelly v. State, 392 Md. 511, 531, 898 A.2d 419 (2006) (quoting Cooley v. State, 385 Md. 165, 175, 867 A.2d 1065 (2005)).

Expert testimony is governed by Maryland Rule 5-702, which permits a trial court to admit the testimony of an expert “if the court determines that the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue.” Expert testimony is “ ‘based upon specialized knowledge, skill, experience, training or education.’ ” State v. Payne, 440 Md. 680, 699, 104 A.3d 142 (2014) (quoting Ragland v. State, 385 Md. 706, 725, 870 A.2d 609 (2005)). Stated another way, “[testimony elicited from an expert provides useful, relevant information when the trier of fact would not otherwise be able to reach a rational conclusion; such information Is not likely to be part of the background knowledge of the judge or jurors themselves.’ ” Payne, 440 Md. at 699, 104 A.3d 142 (quoting David H. Kaye, et al., The New Wigmore: a Treatise on Evidence: Expert Evidence § 1.1 (2d ed. 2010)).

Appellant contends that the GPS data in this case is similar to cell phone geolocation data. In Wilder v. State, 191 Md.App. 319, 991 A.2d 172, cert. denied, 415 Md. 43, 997 A.2d 792 (2010), Coleman-Fuller v. State, 192 Md.App. 577, 995 A.2d 985 (2010), and Payne, this Court and the Court of Appeals concluded that expert testimony was necessary for the admission of cell phone geolocation data. In Payne, for example, a police officer testified as a lay witness concerning the call detail records of Payne and Bond, who were suspects in a murder. 440 Md. at 685-86, 104 A.3d 142. The police officer stated that he had used the call detail records provided by Payne’s and Bond’s cell phone providers to create a chart listing certain information, including the cell towers through which calls were routed. Id. at 686, 104 A.3d 142. The officer explained that he would match certain data points about a call with a table on an “Excel spread sheet that c[a]me[ ] with the records” or a “secure Web site” — neither of which were offered into evidence — and he could then determine the latitude and longitude of the cell tower through which the call had been routed. Id. at 686-87, 104 A.3d 142. The officer testified that both Payne and Bond made calls that had been routed through towers very near to the scene of the crime. Id. at 687-89, 104 A.3d 142.

The Court of Appeals determined that the State needed to qualify the police officer as an expert witness to testify about the cell phone geolocation data, because he “engaged in a process to derive his conclusion that Payne’s and Bond’s cell phones communicated through [specific] cell towers that was beyond the ken of an average person.” Id. at 700, 104 A.3d 142. The officer applied specialized knowledge and experience to interpret the records and did more than simply read entries from the records. Id. at 700-01, 104 A.3d 142. Indeed, the officer’s “testimony was that of an expert, because Call Detail Record entries are not entries typical of a cell phone bill where a juror could ‘rely upon his or her personal experience’ to understand their meaning.” Id. at 701, 104 A.3d 142 (quoting State v. Blackwell, 408 Md. 677, 692, 971 A.2d 296 (2009)); see also Coleman-Fuller, 192 Md.App. at 614, 619, 995 A.2d 985 (holding that expert testimony was required for cell phone geolocation data, because the testifying officer stated that he had attended classes on the subject and had extensive experience); Wilder, 191 Md.App. at 368, 991 A.2d 172 (“[The testifying officer] elaborated on the information provided by the cell phone records — the bills and records of calls — by his use of a Microsoft software program to plot location data on a map and to convert information from the cellular phone records in order to plot the locations from which Wilder used his cell phone.”).

We find appellant’s comparison inapposite. Unlike the cell phone geolocation data cases, Tritle was not relying on special knowledge, skill, or training to interpret the GPS records for the box truck, nor did he “engaget ] in a process to derive his conclusion ... that was beyond the ken of an average person.” See Payne, 440 Md. at 700, 104 A.3d 142. Rather, Tritle simply read the GPS data as it appeared in the GPS records. Furthermore, we conclude that the average juror could understand the GPS records without expert help. The records indicate simply and clearly the date and time of the reading and the address at which the truck was then located. Furthermore, appellant was free to question Tritle on cross-examination about the company’s GPS system, how it worked, and its reliability, but he failed to do so.

We note that neither appellant nor the State has cited to a case in Maryland addressing whether an expert is needed to admit GPS records into evidence, and our research has not revealed one. Some of our sister state courts and federal courts have, however, addressed this issue. For example, the United States Court of Appeals for the First Circuit concluded that no expert was needed to authenticate GPS records. See United States v. Espinal-Almeida, 699 F.3d 588, 612-13 (1st Cir.2012), cert. denied, — U.S. —, 133 S.Ct. 1837, 185 L.Ed.2d 845 (2013).

Although the crimes were different, Brown v. State presented a similar situation to the case sub judice. 163 S.W.3d 818 (Tex.Ct.App.2005). Brown was a truck driver, and his company had GPS units installed on all of its vehicles. Id. at 820. Approximately a year after a body had been discovered in a park, Brown, then being held for other crimes, gave a statement to police that another truck driver had killed the victim in New Jersey, and Brown had agreed to drive the body to Texas and dispose of it. Id. at 821. In investigating further, police believed that Brown had acted alone. Id. 820-21. At Brown’s trial, prosecutors introduced records of GPS data from his truck that showed that his truck had been near the park where the body had been discovered at approximately the time the body had been dumped there. Id. at 820. A witness from the trucking company testified as a lay witness as to the GPS data and its accuracy and reliability. Id. at 824-25. The Texas court concluded that this witness did not need to be an expert. Id. at 825 (“Her purpose was to explain how the GPS data ... became a business record of the trucking company.”).

Similarly, in the case sub judice, the State introduced the records of GPS data as a business record of Schindler. The witness in Brown was the trucking company’s safety administrative coordinator; id. at 824; Tritle was the supervisor for the repair and truck teams. Both witnesses were testifying as to facts within their knowledge that did not require any specialized training, knowledge, or experience. Accordingly, we hold that expert testimony is not necessary for the admission of records of GPS data, where the witness merely reads the GPS data as it appears in the records. See also Commonwealth v. Thissell, 457 Mass. 191, 928 N.E.2d 932, 934, 936-38 (2010) (concluding that GPS records were business records and admissible in probation revocation hearing, despite testifying witness claiming that he was “not an expert”); State v. Jackson, 229 N.C.App. 644, 748 S.E.2d 50, 56-57 (2013) (holding that lay witness testimony as to GPS data was admissible). But see State v. Pirsig, 670 N.W.2d 610, 616-17 (Minn.Ct.App.2003) (concluding that expert testimony regarding GPS data was admissible).

II. The Jury Instructions

Appellant contends that the circuit court committed plain error in its instruction to the jury as to the crime of theft scheme. Appellant concedes that the issue was not preserved, because there was no objection to the jury instructions at trial. Appellant argues, however, that the court failed to include a critical element of the charge in the instructions. Specifically, according to appellant, in order to find him guilty of a theft scheme, the court was required to instruct the jury that it must first find that appellant committed two or more thefts of property with an aggregate value of $100,000 or more as part of the scheme. Appellant also contends that the court failed to instruct the jury that theft is an element of a theft scheme.

The State responds that the circuit court did not commit plain error in instructing the jury. The State argues that a theft scheme implies the commission of more than one act of theft, and, in any event, the court’s error was not plain or material.

Rule 4-325(e) states: “No party may assign as error the giving or the failure to give an instruction unless the party objects on the record promptly after the court instructs the jury, stating distinctly the matter to which the party objects and the grounds of the objection.” The Rule also provides that an appellate court may review any plain error in the giving of jury instructions, if that error is “material to the rights of the defendant.” Id. This Court has noted: “The plain error hurdle, ‘high in all events, nowhere looms larger than in the context of alleged instructional errors.’ ” Peterson v. State, 196 Md.App. 563, 589, 10 A.3d 838 (2010) (quoting Martin v. State, 165 Md.App. 189, 198, 885 A.2d 339 (2005)). The Court of Appeals has noted that appellate courts will generally “not invoke this discretion except in situations that are ‘compelling, extraordinary, exceptional or fundamental to assure the defendant a fair trial.’ ” Conyers v. State, 354 Md. 132, 171, 729 A.2d 910 (quoting State v. Hutchinson, 287 Md. 198, 203, 411 A.2d 1035 (1980)), cert. denied, 528 U.S. 910, 120 S.Ct. 258, 145 L.Ed.2d 216 (1999).

The evidence that appellant had committed multiple thefts — a scheme of thefts — with other cohorts was substantial. As Judge Moylan has explained, writing for this Court, plain error review is reserved for cases of “ ‘truly outraged innocence [that] call for the act of grace of extending’ ” plain error review. Jeffries v. State, 113 Md.App. 322, 326, 688 A.2d 16, cert. denied, 345 Md. 457, 693 A.2d 355 (1997). This is not one of those cases. The State introduced documentary and photographic evidence that appellant and Ragland sold thousands of pounds of copper number 1 between May and November 2012, that the box truck’s GPS data indicated that the truck was at Eklof and then later at a scrap yard on days that appellant or Ragland scrapped copper, and that Eklof was missing nearly 20,000 pounds of copper. We, therefore, decline to exercise our discretion and engage in a plain error review of the jury instructions in this case.

JUDGMENTS OF THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY AFFIRMED; APPELLANT TO PAY COSTS.

      . The missing copper was unused and new; hence, it is sometimes referred to as “copper number 1.” "Copper number 2” refers to used copper and may turn green due to exposure to the elements.

      . We note that Jenkins testified that he "believed” he reviewed the footage from November 13th, but he was "reluctant to say the date without his notes." Mason testified that he took copper on November 19th, and this is the date used in charging appellant.

      . Smith is located at 2001 Kenilworth Avenue in Capitol Heights; Ultra is located at 8046 Femham Lane in Forestville.

      . East Coast is located at 1015 Ritchie Road in Capitol Heights.

      . The GPS records indicated the following data that is relevant to this case:
      Date Time Address
      August 20, 2012 1:13 p.m. 3395 Pennsy Drive and 75th Avenue
      August 20, 2012 2:37 p.m. 8036 Femham Lane and Cryden Way
      August 24, 2012 1:22 p.m. 3395 Pennsy Drive and 75th Avenue
      August 24, 2012 2:56 p.m. 8038 Femham Lane and Ciyden Way
      September 7, 2012 6:00 a.m. Pennsy Drive and Corporate Drive

        September 7, 2012 9:02 a.m. 8036 Fernham Lane and Cryden Way
      October 3, 2012 6:28 a.m. 3574 Pennsy Drive and Veterans Parkway
      October 3, 2012 2:11 p.m. 8038 Fernham Lane and Ciyden Way
      October 4, 2012 6:21 a.m. 3395 Pennsy Drive and 75th Avenue
      October 4, 2012 9:47 a.m. 8036 Fernham Lane and Cryden Way
      October 5, 2012 6:31 a.m. 3393 Pennsy Drive and 75th Avenue
      October 5, 2012 10:16 a.m. 8036 Fernham Lane and Cryden Way
      October 19, 2012 2:12 p.m. 3393 Pennsy Drive and 75th Avenue
      October 19, 2012 3:24 p.m. 8038 Fernham Lane and Ciyden Way
      October 20, 2012 12:06 p.m. 1015 Ritchie Road and Ritchie Drive
      October 22, 2012 1:00 p.m. 995 Ritchie Road and Ritchie Drive
      November 9, 2012 6:16 a.m. 3377 75th Avenue and Pennsy Drive
      November 9, 2012 1:48 p.m. 995 Ritchie Road and Ritchie Drive

      . The State also argues that this issue is not preserved, because appellant initially argued that the GPS data was inadmissible hearsay. Appellant, thereafter, raised a general objection when the State sought to admit the GPS records. Notwithstanding appellant’s initial argument, a general objection preserves any argument as to the admissibility of evidence. See Addison v. State, 188 Md.App. 165, 176, 981 A.2d 698 (2009). Moreover, when the State sought to have Tritle read certain GPS entries from the records, appellant objected and raised the argument that he presents on appeal. Accordingly, this issue is preserved.

      . The State of Texas also had an expert witness testify as to how GPS worked. Brown v. State, 163 S.W.3d 818, 824 (Tex.Ct.App.2005). This expert may have been necessary because the GPS data in Brown was recorded in 1993. Id. at 820. The expert testified about GPS technology in 1993 and informed the jury as to technological advances since that time. Id. at 824.


author: FRIEDMAN, J.

text:
    143 A.3d 173
    Robin Vera COLBERT v. STATE of Maryland.
    No. 2332,
    Sept. Term, 2014.
    Court of Special Appeals of Maryland.
    July 28, 2016.

      Wyatt Feeler, Anne K. Olesen (Paul B. DeWolfe, Public Defender, on the brief), Washington, DC, for Appellant.
    Benjamin Harris (Brian E. Frosh, Atty. Gen., on the brief), Baltimore, MD, for Appellee.
    Panel: WOODWARD, WRIGHT, and FRIEDMAN, JJ.
   FRIEDMAN, J.

The sole question in this case is the constitutionality of § 16-205.1(c) of the Transportation (“TR”) Article of the Maryland Code, which allows a warrantless breath or blood alcohol test of a driver who is (1) “involved in a motor vehicle accident”; that (2) results in “death ... or a life threatening injury”; and (3) that law enforcement has “reasonable grounds to believe” that the driver is under the influence of drugs or alcohol. TR § 16-205.1(c). If the law is constitutional, then Colbert’s conviction stands. If the law is unconstitutional, her conviction must be reversed. Because we find that this law is precisely the kind envisioned by Justice Kennedy in his controlling concurrence to Missouri v. McNeely, 569 U.S. —, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013), we find that the law is constitutional with respect to breath tests and therefore affirm Colbert’s conviction.

FACTS

Robin Vera Colbert was driving a grey Nissan along Route 50. She took an exit ramp toward Ritchie Highway but missed and ended up on the Baltimore & Annapolis (“B & A”) Bicycle Trail instead. There she struck two cyclists from behind: Katie Pohler and Todd Green. Bystanders called 911 and applied pressure to a bleeding wound to Pohler’s neck. Paramedics arrived quickly and summoned helicopters to transport Pohler and Green to Shock Trauma. Later Pohler would be diagnosed as suffering from a broken fibula, ulna, collarbone, shoulder blade, and vertebrae. She also suffered a lacerated carotid artery and a crushed trachea.

When Officer Eric Trumbauer of the Anne Arundel County Police Department arrived at the scene, Colbert identified herself as the driver of the grey Nissan. Officer Trumbauer smelled alcohol from Colbert, noted that she was slurring her speech and was unable to keep her balance. Officer Trum-bauer performed a field sobriety test on Colbert, which she failed. Officer Trumbauer then instructed Corporal Doyle to take Colbert to the Eastern District Police Station for a breath test, which resulted in a reading of .15 blood-alcohol content, well above the legal limit of ,08.

Colbert was charged with eleven criminal counts related to the incident. Colbert moved to suppress the breath test results because they had been obtained without a warrant. After the trial court denied that motion, Colbert proceeded by way of a Not Guilty Agreed Statement of Facts as to two of the counts. She was found guilty of those two counts and the State nolle prossed the remaining counts. The two counts on which Colbert was convicted were merged for sentencing and the trial court sentenced Colbert to three years incarceration with all but eighteen months suspended and five years of supervised probation. This appeal followed.

ANALYSIS

The Fourth Amendment to the U.S. Constitution provides that

[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized,

U.S. Const, Amend. IV. Compelled breath and blood alcohol tests are searches and are thus subject to a Fourth Amendment analysis. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). In Schmerber, however, the U.S. Supreme Court affirmed a warrantless blood test of an individual arrested for driving under the influence of alcohol, reasoning that the natural metabolization of alcohol in the bloodstream creates an exigency justifying an exception to the warrant requirement. More recently, courts split on the question of “whether the natural dissipation of alcohol in the bloodstream establishes a per se exigency that suffices on its own to justify an exception to the warrant requirement.” McNeely, 569 U.S. at -, 133 S.Ct. at 1558. In trying to resolve that split, the Supreme Court, as it so often does, fractured, leaving readers to puzzle out the meaning of the various Opinions.

Justice Sotomayor wrote for a five-judge majority of the Court (Scalia, Kennedy, Ginsburg, Sotomayor, and Kagan, JJ), holding that the metabolization of the alcohol in the bloodstream does not create an automatic exception to the warrant requirement. McNeely, 569 U.S. at -, 133 S.Ct. at 1559. Her majority fell apart, however, when she suggested that each case must be considered on its individual facts to determine whether a warrant was required. Justice Kennedy wrote a separate concurrence, in which he took the position that States and local governments may define categories of cases in which warrants are not required:

The repeated insistence in Part III[ ] that every case be determined by its own circumstances is correct, of course, as a general proposition; yet it ought not to be interpreted to indicate this question is not susceptible of rules and guidelines that can give important, practical instruction to arresting officers, instruction that in any number of instances would allow a warrantless blood test in order to preserve the critical evidence. States and other governmental entities which enforce the driving laws can adopt rules, procedures, and protocols that meet the requirements of the Fourth Amendment and give helpful guidance to law enforcement officials.

McNeely, 569 U.S. at -, 133 S.Ct. at 1568-69 (Kennedy, J., concurring). Pursuant to the so-called Marks rule governing the interpretation of plurality opinions, Justice Kennedy’s concurrence states the governing rule of decision. Therefore, we read McNeely as holding that state and local governments may develop appropriate per se rules to help law enforcement to decide when warrants will be required.

In our judgment, TR § 16-205.1(c) is precisely the type of per se rule that Justice Kennedy was contemplating in his McNeely concurrence. Moreover, by utilizing a three-part test, TR § 16-205.1(c), helps law enforcement identify a category of cases in which it is particularly reasonable to dispense with the warrant requirement. First, there must have already been a “motor vehicle accident,” which eliminates the routine sobriety checkpoint type cases at issue in McNeeley. Second, the accident must have caused “death ... or a life threatening injury.” This requirement limits the warrant exception to the most serious cases, in which the attention of law enforcement and first responders will necessarily be divided between a variety of critical tasks, including providing medical attention to the victim(s), crowd control, traffic control, detaining a suspect, investigation, and collecting evidence. In such a circumstance, we cannot fault the General Assembly for assigning a lower priority to swiftly obtaining a warrant before the evidence metabolizes. Third, there must be “reasonable grounds to believe” that the driver is under the influence of alcohol, which assures that this exception won’t be used on a generalized basis, but only when law enforcement has an articulable suspicion that the defendant is under the influence of drugs or alcohol. Together, these three factors identify an appropriate category of cases in which it is reasonable to automatically dispense with the warrant requirement. We hold, therefore, that TR § 16-205.1(c) is constitutional.

We also hold, if there was any doubt, that the trial court did not abuse its discretion in finding that, at the time of the accident, all three conditions of TR § 16-205.1(c) were satisfied: there had been a motor vehicle accident, the victim had suffered a life threatening injury, and Officer Trumbauer had reasonable grounds to believe that Colbert was under the influence of alcohol. Thus, the statute applied, and it was appropriate to require Colbert to submit to a breath test without need for a warrant.

JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.

      . After this case was briefed and argued, the United States Supreme Court issued its Opinion in Birchfield v. North Dakota, in which it approved of a per se rule allowing warrantless breath (but not blood) tests incident to drunk driving arrests. 579 U.S. -, 136 S.Ct. 2160, 2185, 195 L.Ed.2d 560 (2016) ("Because breath tests are significantly less intrusive than blood tests and in most cases amply serve law enforcement interests, we conclude that a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving.”). While not controlling of the instant case, Birchfield compels us to add two caveats to our decision.

        First, Birchfield analyzed a different exception to the warrant requirement than we are concerned with here. In Birchfield, the Supreme Court analyzed the exception pertaining to searches incident to arrest. Although at the motions hearing there was a dispute about whether Colbert was under arrest at the time she was subjected to the breath test, that issue was not resolved below, and we cannot reach it on appeal. Instead, the parties have argued and we address this case solely pursuant to the exigent circumstances exception to the warrant requirement.

        Second, Birchfield places great emphasis on a distinction it draws between the bodily intrusion involved in a breath test and that involved in a blood test. Birchfield, 579 U.S. —, 136 S.Ct. at 2176-78. We take no position on the constitutionality of the administration of a blood alcohol test pursuant to TR § 16-205.1(c).

      . “Part III” refers to a section of Justice Sotomayor’s opinion that commanded the support of only four justices and which Justice Kennedy declined to join.

      . Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977) ("When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds’ ”).

      . Although we believe ourselves bound by the Marks rule to follow Justice Kennedy’s concurrence, we also believe that Justice Sotomayor and the members of her plurality would also approve of the constitutionality of TR § 16-205.1(c). See McNeely, 569 U.S. at - n. 9, 133 S.Ct. at 1566 n. 9 (citing, with apparent approval, State statutes “plac[ing] significant restrictions on when police officers may obtain a blood sample despite a suspect’s refusal (often limiting testing to cases involving an accident resulting in death or serious bodily injury)” and citing as an example, among others, Maryland’s TR § 16-205.1(c)).

      . We note that at the hearing, Colbert contested whether the victims objectively satisfied the standard of having suffered a "life threatening injury.” We don’t think that is the right question. A law enforcement officer, in the field, in stressful circumstances, should not be held to the same standard of diagnosis as a medical professional. Rather, the correct question is whether the officer had a reasonable belief that the victim had suffered a "life threatening injury.” Given Pohler’s blood loss, we don’t think it is possible to think otherwise.