author: Berger, J.

text:
    158 A.3d 1140
    A.C. v. MARYLAND COMMISSION ON CIVIL RIGHTS, et al.
    No. 322,
    Sept. Term, 2016
    Court of Special Appeals of Maryland.
    Filed: April 28, 2017

      Argued by: Alfreda D. Cooper, Baltimore, MD, for Appellant.
    Argued by: Terrence J. Artis (Glendora C. Hughes, General Counsel, State of Maryland Commission on Civil Rights of Baltimore, MD) Matthew Fader (Julia D. Bernhardt, Brian E. Frosh, Attorney General of Baltimore, MD) on the briefs, for Appellee.
    Panel: Meredith, Berger, James A. Kenney III (Senior Judge, Specially Assigned), JJ.
   Berger, J.

This appeal arises from the circuit court’s dismissal of appellant’s (“A.C.”) petition for judicial review of a decision by appellee, the Maryland Commission on Civil Rights (“the Commission”). In May, 2012, A.C. was terminated from her position as an assistant attorney general with appellee, the Office of the Attorney General (“the OAG”). Thereafter, A.C. filed a charge of race discrimination and retaliation against the OAG with the Commission. Almost three years later, the Commission issued a finding of no probable cause that a discriminatory act occurred. The Commission further denied A.C.’s subsequent request for reconsideration. A.C.’s complaint was then forwarded to the United States Equal Employment Opportunity Commission (EEOC), which ultimately upheld the Commission’s findings. Pending the EEOC’s review, A.C. filed a petition for judicial review of the Commission’s decision to deny her request for reconsideration in the Circuit Court for Baltimore City. On April 5, 2016, the circuit court dismissed the petition for judicial review.

A.C. presents four issues for our review, which we have reworded as follows:

1. Whether the circuit court erred when it denied A.C.’s petition for judicial review of the Commission’s decision to deny AC.’s request for reconsideration, where no statute conferred authority on the circuit court to hear the petition.
2. Whether the circuit court erred when it permitted the Commission and the OAG to file motions to dismiss more than thirty days after each received notice of the petition for judicial review.
3. Whether the circuit court erred when it dismissed AC.’s petition for judicial review without requiring the Commission to transmit its investigative files to the circuit court.
4. Whether the circuit court erred when it denied A.C.’s motion to amend her complaint to include a motion for a writ of mandamus to require the OAG to provide certain disciplinary procedures permitted to certain employees under Md. Code (1984, 2014 Repl. Vol.), § ll-106(a) of the State Personnel and Pensions Article (“SP”).

BACKGROUND

In 2005, A.C. was appointed as an Assistant Attorney General in the Office of the Attorney General. On May 4, 2012, A.C. was terminated from her position. On October 29, 2012, A.C. filed an administrative complaint with the Commission alleging that her termination was based on race discrimination and retaliation.

On October 1, 2015, the Commission issued its written decision in which it found that A.C.’s performance “proved less than satisfactory.” A.C. asserts that she was not provided with any information regarding the reason for her termination on the day she was terminated. The Commission agreed with AC.’s assessment, but found that the absence of information was consistent with the OAG’s procedure regarding the termination of an employee who serves as a “Special Appointment.”

The Commission’s -written findings provide that A.C.’s termination was the “result of her documented consistent unwillingness to comply with her supervisor’s requests,” her unprofessional conduct (as documented in email exchanges between her and her supervisor), and other short-falls, such as her failure to recognize settlement opportunities. The Commission found that in addition to her unprofessional conduct, A.C. failed to put forward evidence of any discriminatory conduct towards her based on race. The Commission, therefore, determined that there was “[n]o Probable Cause to believe that the [OAG] discriminated against [A.C.] because of race under Title 20, Subtitle 6 of the State Government Article.”

Along with the written findings of the Commission, A.C. received a letter, dated October 1, 2015, explaining her right to pursue the claim and that she had additional appeal rights with the EEOC.

Please note that this charge was dually filed with the [EEOC]. Accordingly, the Complainant has additional appeal rights with the EEOC. The Complainant is entitled to request EEOC to perform a “Substantial Weight Review” of the Commission’s final finding. To obtain a Substantial Weight Review, the Complainant must make [his or her] request in writing, within 15 days of receipt of this letter. The request for review should contain the Complainant’s name, charge number and any other additional information the Complainant believes would be helpful for the EEOC’s review. Otherwise, the EEOC will generally adopt the Commission’s findings.
Additionally, the Complainant has the right to request a Federal Notice of Right to Sue from the EEOC which would enable the Complainant to file a complaint in Federal District Court. The issuance of a Notice of Right to Sue will normally result in EEOC terminating all further processing.

On October 15, 2015, A.C. submitted a request for reconsideration with the Commission. On November 15, 2015, after a review of the investigative file, the Commission denied reconsideration pursuant to COMAR 14.03.01.08C. The letter included the following paragraph:

You have the right to pursue your complaint with the Equal Employment Opportunity Commission or in the United States District Court for Maryland upon obtaining a Notice of Right to Sue from the EEOC. You must notify the EEOC in writing within 15 days of this letter to request a review of the Maryland Commission on Civil Rights final decision

On or around the same day that A.C. submitted a request for reconsideration with the Commission, she also submitted a request for review to the EEOC. Thereafter, the EEOC reviewed the findings and investigative file of the Commission and the additional information provided by A.C. The EEOC upheld the findings of the Commission. A letter dated December 15, 2015 to A.C. included the following information:

This review failed to reveal that the [Commission] was deficient in its investigation of your charges, and specifically, that it did not correctly apply the laws that EEOC enforces when examining the evidence and reaching its findings of facts. As a result, I am recommending that the previous findings of the [Commission], that there was no probable cause to believe that the law had been violated, be upheld.
In view of the above, your charge with EEOC is dismissed. Enclosed herein is a Notice of Rights which will enable you to file a lawsuit in Federal Court, should you so desire, within 90 days. We regret that we cannot be of further assistance to you in this matter.

A separate document, included with the letter, provided notice to A.C. of her right to bring a claim under federal law (i.e. Title VII of the Civil Rights Act of 1964) based on race discrimination in federal court and that, if brought in federal court, it must be brought within 90 days of receiving the document. Finally, additional information regarding A.C.’s right to pursue the case was attached to the notice, which included the following information and instructions:

At the time you filed your charge with the [Commission], you were notified in writing by the [Commission] that it would dual-file your charge for you with the [U.S. EEOC] in order to preserve your right to file a lawsuit in Federal District Court. The [Commission] ... notified you in writing of the reason for its closure of your charge .... EEOC has reviewed and adopted the [Commission’s] findings, and has closed the dual-filed EEOC charge. ... This Dismissal & Notice of Rights authorizes you to file a lawsuit in Federal District Court within 90 days if you choose to do so .... EEOC does not encourage or discourage such legal action; [...]
If however, you do elect to file a lawsuit, you must do so with a Federal District Court within 90 days of the date you received the Dismissal & Notice of Rights, not the date it is dated. [ ... ]
If you are going to file a lawsuit and need to obtain a copy of the information obtained during the [Commission’s] processing of your charge, make your request promptly in writing to the [Commission] that investigated your charge (NOT EEOC). EEOC does not obtain the [Commission’s] investigative case file.

(Emphasis Added.)

Rather than file a discrimination claim in either federal or state court, A.C. filed a petition for judicial review of the Commission’s “no probable cause” finding on December 4, 2015. On December 16, 2015, the Commission sent A.C. a letter confirming that it had received a copy of her petition for judicial review and that the Commission would not be participating as a party. Nevertheless, on February 18, 2016, the Commission filed a “Motion to Dismiss Petition for Judicial Review and Preclusion from Transmitting Investigative File.” In its motion, the Commission argued that A.C. was not entitled to judicial review in circuit court, pursuant to Md. Code (1984, 2014 Repl. Vol.), § 20-1005(d) of the State Government Article (“SG”), and that “the Commission was barred from submitting its investigative file as the agency record because the petition is improper.”

On March 1, 2016, the OAG also filed a motion to dismiss A.C.’s petition for judicial review, pursuant to Rule 7-204(b), and adopted and incorporated the arguments presented in the Commission’s motion to dismiss. The OAG asserted, as both the OAG and the Commission continue to argue on appeal, that:

The [EEOC], which assumed jurisdiction over [AC.’s] claims for discrimination and retaliation, has dismissed her claim of discrimination and issued her Notice of Right to Sue .... Thus, the Commission’s finding of no probable cause for discrimination and retaliation is not subject to judicial review by this [c]ourt. SG § 20-1005(d)(2).

Neither A.C. nor the OAG or the Commission requested a hearing on their motions to dismiss filed in the circuit court. On April 5, 2016, the circuit court granted the OAG’s motion to dismiss, granted the Commission’s “Motion to Dismiss Petition for Judicial Review and Preclusion from Transmitting Investigative File,” and denied A.C.’s request for leave to amend her complaint to include a request for a writ of mandamus. The court’s decision was based, in part, on its finding that a “no probable cause” finding by the Commission in this case was “not an appealable final order subject to judicial review in [the circuit court],” and that A.C. “has, and has had, an avenue through which to seek legal recourse.”

DISCUSSION

I. Standard of Review

Our review of the circuit court’s grant of the OAG’s and the Commission’s motion to dismiss is de novo. Gasper v. Ruffin Hotel Corp. of Maryland, 183 Md.App. 211, 226, 960 A.2d 1228, (2008), aff'd, 418 Md. 594, 17 A.3d 676 (2011). As we stated in Gasper, “[i]n reviewing the underlying grant of a motion to dismiss, we must assume the truth of the well-pleaded factual allegations of the complaint, including the reasonable inferences that may be drawn from those allegations.” Id. (quoting Adamson v. Corr. Med. Servs., 359 Md. 238, 246, 753 A.2d 501 (2000)). Furthermore, issues of statutory interpretation are legal issues for which we review for legal correctness. Falls Road Community Ass’n v. Baltimore Cnty., 437 Md. 115, 134, 85 A.3d 185 (2014).

II. Federal and State Framework

In Maryland, both state and federal agencies provide a remedy for individuals who bring claims of race discrimination in employment. At the federal level, Title VII of the Civil Rights Act of 1964 protects employees from discrimination in his or her “compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2. The EEOC is the federal agency charged with enforcing Title VII and other anti-discrimination statutes. See 42 U.S.C. § 2000e-4.

When a complaint is filed with the EEOC, the agency investigates the complaint and determines whether there is reasonable cause to believe the allegations of discrimination. 29 C.F.R. § 1601.21. If reasonable cause exists, the EEOC may decide to pursue a claim on behalf of the aggrieved party. The EEOC, however, does not have the authority to fully adjudicate claims of discrimination and impose sanctions on employers—a power that remains with the federal courts. See 42 U.S.C. § 2000e-4; Laber v. Harvey, 438 F.3d 404, 416 (4th Cir. 2006). If the EEOC does not find reasonable cause, or in some situations upon request from the claimant prior to the conclusion of the investigation, the EEOC issues a “Right to Sue” letter allowing the claimant to file a private civil action in a U.S. District Court. Laber, 438 F.3d at 416 (citing 42 U.S.C. § 2000e—5(f)(1); 29 C.F.R. § 1601.28).

As in the instant case, the EEOC works with state and local fair employment practices agencies (“FEP”) who administer similar state anti-discrimination laws. See 42 U.S.C. § 2000e-8(b). The Maryland Civil Rights Act protects the same classes as those covered by Title VII, including race, as well as additional classes. See SG § 20-606(a). In Maryland, the Commission, a FEP agency, is authorized under SG § 20-207 to hold investigatory hearings “[w]henever any problem of racial discrimination arises .... to resolve the problem promptly by gathering all of the facts from each interested party and mak[e] recommendations as necessary.” SG § 20-207(d)(1). If the Commission’s investigation does not find probable cause that the alleged discriminatory act occurred, it must issue its written findings and dismiss the complaint. SG § 20-1009. If the EEOC subsequently reviews the complaint, the EEOC “may utilize the information gathered by” the Commission. See 29 C.F.R. § 1601.15.

If the Commission finds no probable cause that the discriminatory act occurred, or if the claimant wishes to bring her claim in state court prior to the conclusion of the investigation, she may elect to file a civil action in the circuit court in the county where the alleged unlawful act occurred. See SG § 20-1013. To bring a private action, the claimant must have “initially filed a timely administrative ... complaint;” “at least 180 days have elapsed since the filing of the administrative ... complaint;” and the claimant must file the civil action in state court “within two years after the unlawful employment practice occurred.” SG § 20-1013(a). Filing a civil action terminates any ongoing proceedings before the Commission and shifts the authority to provide remedies available under SG § 20-1009(b) to the circuit court. See SG § 20-1013(c)-(d). In contrast to the two-year statutory limitations period under state law, however, receipt of a “Right to Sue” letter from the EEOC upon completion of its review provides the claimant ninety days to file a civil claim in federal court, regardless of the date of the alleged unlawful act. See 42 U.S.C. § 2000e-5(f)(1).

We analyze A.C.’s arguments on appeal through the lens of this state and federal framework. A.C.’s claim was reviewed by both the Commission under Maryland law and the EEOC under Title VII. Ultimately, the EEOC upheld and adopted the Commission’s findings and dismissed A.C.’s EEOC complaint. In accordance with the procedures outlined supra, the EEOC included a “Notice of Rights” (i.e. “Right to Sue”) letter along with the notice of the EEOC’s dismissal of her claim. At this point, because A.C. did not file a civil action in state court within two years of the date of her termination in 2012, the time for A.C. to file a private action in state court had expired. In contrast, upon receiving the “Right to Sue” letter—sent on or around December 15, 2015—A.C. was permitted to file a civil action in the U.S. District Court for Maryland under federal law within ninety days. Rather than filing in federal court, however, A.C. filed a petition for judicial review of the Commission’s decision in the circuit court in an attempt to appeal the Commission’s finding of no probable cause and denial of reconsideration. As we discuss below, a petition for judicial review of the Commission’s decision is not a proper avenue available to A.C. for pursuing her claim.

III. The Circuit Court Did Not Err When It Dismissed A.C.’s Petition For Judicial Review.

The issue before us is whether the circuit court erred—as a matter of law—in granting the OAG’s and the Commission’s motion to dismiss. Stated differently, we determine whether the circuit court was authorized to consider the petition for judicial review of the Commission’s ultimate determination. We conclude that no statute, rule or case law authorized the circuit court to entertain A.C.’s petition for judicial review. As a result, the court was legally correct in dismissing A.C.’s petition for judicial review.

A statute must authorize judicial review for the circuit court to have authority over a petition for judicial review from an administrative agency’s order or action. See Md. Rule 7-201(a) (“The rules in this Chapter [Judicial Review of Administrative Agency Decisions] govern actions for judicial review of ... an order or action of an administrative agency, where judicial review is authorized by statute .... ”). As we observed in Oltman v. Maryland State Bd. of Physicians,

Title 7, Chapter 200 of the Maryland Rules of Procedure explicitly applies to “judicial review of ... an order or action of an administrative agency, where judicial review is authorized by statute[.]” Md. Rule 7-201 (a) (emphasis added). This is consistent with the well-established principle that, “in order for an administrative agency’s action properly to be before ... any court[ ] for judicial review, there generally must be a legislative grant of the right to seek judicial review.” Harvey v. Marshall, 389 Md. 248, 273, 884 A.2d 1171 (2005). Thus, there is typically no right to judicial review of an administrative decision unless that right is established by statute.

182 Md.App. 65, 73, 957 A.2d 611 (2008) (emphasis and alterations in original); see also Md. Rule 7-202(a) (“A person seeking judicial review under this chapter shall file a petition for judicial review in a circuit court authorized to provide the review.”) (emphasis added). No provision under Title 20 of the State Government Article of the Maryland Code confers jurisdiction on the circuit court to hear petitions for judicial review of a denial of reconsideration by the Commission in cases covered by Title VII.

More generally, to permit judicial review in the circuit court, the contested administrative agency decision must be a final, appealable order. Maryland Comm’n on Human Relations v. Baltimore Gas & Elec. Co., 296 Md. 46, 51-52, 459 A.2d 205 (1983) (“Generally, a party can resort to a court only when there is a final order in the administrative proceeding.”). Our well-established test for determining whether a judicial determination is a final, appealable order is to inquire whether that determination “concludes the rights of the parties or denies them means of further prosecuting or defending their rights and interests in the subject matter of the proceedings.” Maryland-Nat’l Capital Park & Planning Comm’n v. Anderson, 395 Md. 172, 188, 909 A.2d 694 (2006) (quoting Baltimore Gas & Elec. Co., supra, 296 Md. at 56, 459 A.2d 205).

Specifically, whether an administrative decision by the Commission constitutes a final, appealable order depends, in part, on the subject matter of the case reviewed. Subsection 20-1005(d)(2) of the State Government Article provides that “\u\nless the United States Equal Employment Opportunity Commission (EEOC) has jurisdiction over the subject matter of the complaint, a denial of a request for reconsideration of a finding of no probable cause by the Commission, is a final order appealable to the circuit court ....” In other words, the Commission’s cases over which the EEOC has jurisdiction under Title VII are excluded, specifically, from those that are “appealable to the circuit court.” Id.

In the instant case, A.C.’s claim, which is based on claims of race discrimination and retaliation, falls squarely within the subject matter over which the EEOC holds jurisdiction. See 42 U.S.C. 2000e. The Commission’s denial of A.C.’s motion for reconsideration, therefore, did not constitute a final appealable order. Instead, A.C. had the option—which she elected to pursue—to request a “substantial weight” review of her claim by the EEOC. The EEOC reviewed the findings of the Commission and upheld the Commission’s decision, finding “no probable cause to believe that the law had been violated.” As we explained above, once A.C. was provided notice of her right to sue from the EEOC, she was free to file a claim in the U.S. District Court for Maryland within ninety days of the receipt of the notice. A.C. chose not to pursue that course of redress. Regardless, without a statutory grant of authority to the circuit court, her petition for judicial review was improper and unauthorized.

IV. The Commission And The OAG Had Standing To File Motions To Dismiss A.C.’s Petition For Judicial Review Of The Commission’s Finding Of No Probable Cause And Denial Of Reconsideration.

A.C. challenges the Commission’s standing to file a “Motion to Dismiss for Judicial Review and Preclusion from Transmitting Investigative File.” Similarly, A.C. challenges the OAG’s standing to file its motion to dismiss. Her challenge to the standing of the Commission is grounded, in part, on the Commission’s letter of December 16, 2015 notifying her of its receipt of her petition for judicial review in which the Commission indicated that it did not intend to participate as a party. The Commission subsequently filed a motion to dismiss on February 18, 2016. Thereafter, on March 1, 2016, the OAG filed a motion to dismiss, adopting and incorporating the Commission’s arguments.

Maryland Rule 7-204 provides the following procedural requirements for a response to a petition for judicial review:

(a) Who May File; Contents. Any person, including the agency, who is entitled by law to be a party and who wishes to participate as a party shall file a response to the petition. The response shall state the intent to participate in the action for judicial review. No other allegations are necessary.
[...]
(c) Time for Filing Response; Service. A response shall be filed within 30 days after the date the agency mails notice of the filing of the petition unless the court shortens or extends the time. The response need be served only on the petitioner, and shall be served in the manner prescribed by Rule 1-321.

Md. Rule 7-204.

Regarding the Commission’s standing, A.C. argues that “when the [Commission’s] Motion to Dismiss was filed on February 18, 2016—two full months after it had already relinquished the right to oppose the pétition, the Circuit Court should have rejected the submission and allowed A.C.’s case to move forward.” In support of her argument, A.C. cites to our opinion in Egloff v. Cty. Council of Prince George’s Cty, 130 Md.App. 113, 744 A.2d 1083 (2000).

Egloff, however, involved a third-party petitioner in a land development case where an objector to the County’s approval of a development plan sought to enter the case as a third-party petitioner. 130 Md.App. at 120, 744 A.2d 1083. Critically, in Egloff, a statute authorized judicial review of the particular administrative decision and provided certain criteria for who was permitted to petition for judicial review. See id. at 123, 744 A.2d 1083. We determined that Egloff did not have standing because she did not meet the criteria—specifically because she was not domiciled in the county in which the development was to occur. Here, however, the circuit court was not statutorily authorized to hear a petition for judicial review, and both the Commission and the OAG sought to dismiss the case on that basis.

Secondly, neither the Commission nor the OAG is a third-party petitioner, where an analysis of the party’s stake in the case is not as clear. Here, the Commission is the administrative agency that rendered the challenged decision. As such, it was clearly entitled to respond to the petition. See Oltman, 182 Md.App. at 79, 957 A.2d 611 (holding that an administrative board that issued the challenged decision may “challenge a petitioner’s right to obtain judicial review of its decision via a ‘preliminary motion.’ ”). Thus, under these circumstances, the Commission is a proper respondent to A.C.’s action.

A.C.’s argument that the OAG did not have standing to challenge her petition for judicial review rests on A.C.’s view that the OAG “does not have a stake in the application for reconsideration process.” A.C. describes the process the Commission follows in reviewing an application for reconsideration and points out that the OAG would not be able to participate in the process of the Commission’s review of her application for reconsideration. Therefore, A.C. argues that the OAG is not a stakeholder in the outcome of her petition for judicial review. Had A.C. filed a proper action, the federal or state trial court’s review of the case would not have focused on the Commission’s decision denying A.C.’s request for reconsideration. As éxplained, supra, A.C. improperly petitioned for judicial review of a decision that the circuit court does not have the statutory authority to review. As a result, the OAG was certainly entitled to file a motion to dismiss, and to include as a basis for its motion the circuit court’s lack of authority to entertain the case.

Finally, A.C. argues that both the Commission and the OAG’s responses were filed too late. Pursuant to Md. Rule 7-204, a respondent must to file a response to a petition for judicial review within thirty days of notice of the petition, unless the court extends that time. The Commission did not file a response until more than two months after it received notice of the petition, and the OAG filed its motion more than a week later. A.C. contends that “had the situation been reversed and a private party like A.C.... did not comply with the time limits for filing a response, ... the private party would not have been allowed to participate in the review.” A.C. overlooks the vastly different roles that a petitioner and a respondent play in the course of bringing an action in the circuit court. Indeed, separate statutes govern a petitioner’s and a respondent’s pleading requirements. In Dep’t of Pub. Safety & Corr. Servs. v. Neal, a case in which the administrative agency petitioned for judicial review and the respondent was a private person, we explained:

Unlike Rule 7-203 ..., Rule 7-204 expressly grants the court discretion to extend the time for filing a response to the petition; and the language of Rule 7-204 does not preclude the court from exercising that discretion to extend the filing deadline retroactively, after it has passed.

160 Md.App. 496, 509, 864 A.2d 287 (2004).

Although the rule permits the trial court to reject a late response, it does not require the court to do so. See Md. Rule 7—204(c); see also Toomey v. Gomeringer, 235 Md. 456, 459, 201 A.2d 842 (1964) (holding that Rule B9, the predecessor to Rule 7-204, is not “inflexible and mandatory” where “it is not shown that the applicants were prejudiced by the delay”). Accordingly, we hold that the circuit court did not err when it considered preliminary motions to dismiss from both the OAG and the Commission.

V. The Commission Was Not Required To Transmit Its Confidential Investigative Files To The Circuit Court.

A.C. contends that she was entitled to have the Commission’s investigatory file transmitted to the circuit court. Section § 20-1101(a), State Government Article, provides the following statutory framework regarding the Commission’s requirement to keep its investigative files confidential:

Except as provided in paragraph (2) of this subsection, [] during an investigation of a complaint alleging a discriminatory act, and until the matter reaches the stage of public hearings:
(i) the activities of all members and employees of the Commission in connection with the investigation shall be conducted in confidence and without publicity ....

SG § 20-1101. Additionally, pursuant to COMAE 14.03.01.19, “requests] for information relating to investigative files before the charge has reached the public hearing stage will be denied, except those made pursuant to [SG § 20-1101].” A “public hearing” is a “public hearing before either the Office of Administrative Hearings or any federal or State court of law.” COMAR 14.03.01.18B.

As we have explained, the circuit court did not have the statutory authority to entertain A.C.’s petition for judicial review of the Commission’s denial of A.C.’s request for reconsideration. The circuit court, therefore, properly dismissed the petition without a hearing. The Commission was entitled to keep its investigation of A.C.’s complaint confidential until the charge of discrimination and retaliation was properly filed and reached the public hearing stage in either a federal or state court. The circuit court, therefore, did not err when it dismissed the case without requiring the transmission of the Commission’s investigative file.

VI. The Circuit Court Did Not Abuse Its Discretion In Denying A.C.’s Motion To Amend Her Complaint To Include A Request For A Writ Of Mandamus.

Finally, A.C. appeals the circuit court’s decision to deny her motion to amend her petition for judicial review to include a request for a writ of mandamus, in order to allow her to compel the OAG to provide the procedures available to certain state employees under SP § 11-106. Our review of a trial court’s decision denying a motion to amend a pleading, is as follows:

With respect to procedural issues, a trial court’s rulings are given great deference. The determination to allow amendments to pleadings or to grant leave to amend pleadings is within the sound discretion of the trial judge. See Robertson v. Davis, 271 Md. 708, 710, 319 A.2d 816, 818 (1974) (discussing Rule 320, the predecessor to Rule 2-341, and stating “whether to permit an amendment rests within the sound discretion of the trial judge”); Prudential Sec. v. E-Net, Inc., 140 Md.App. 194, 231-32, 780 A.2d 359, 381 (2001); Residential Warranty Corp. v. Bancroft Homes Greenspring Valley, Inc., 126 Md.App. 294, 317-18, 728 A.2d 783, 794-95, cert. denied, 355 Md. 613, 735 A.2d 1107 (1999). Only upon a clear abuse of discretion will a trial court’s rulings in this arena be overturned.

Schmerling v. Injured Workers’ Fund, 368 Md. 434, 443-44, 795 A.2d 715 (2002).

A writ of mandamus is an “extraordinary” remedy, and the power to issue this writ is one that is “exercised ... with caution, treading carefully so as to avoid interfering with legislative prerogative and administrative discretion.” Wilson v. Simms, 380 Md. 206, 223, 844 A.2d 412 (2004) (citing Lamb v. Hammond, 308 Md. 286, 292, 518 A.2d 1057 (1987)). Furthermore, “the party seeking enforcement of that duty must have a clear entitlement to have the duty performed.” Baltimore Cty. v. Baltimore Cty. Fraternal Order of Police Lodge No. 4, 439 Md. 547, 571, 96 A.3d 742 (2014).

The circuit court was well within its discretion to deny A.C. leave to amend to include a request for a writ of mandamus to compel the pre-termination procedures afforded to state employees under SP § 11-106. Specifically, A.C. had “no clear entitlement” to the disciplinary procedures under SP § 11-106 or appeal procedures under SP § 11-305 for a host of reasons, not the least of which is that she failed to properly appeal her termination. Pursuant to SP § 11—108(b)(1), “[i]f an employee fails to appeal a decision in accordance with this subtitle, the employee is considered to have accepted the decision.” Additionally, A.C. was not entitled to the disciplinary procedures she sought to compel under SP § 11-106, because she was a “specially appointed” at-will employee.

Under SP § 11-106, certain disciplinary procedures are available to state employees in the skilled and professional services. See SP § 11-102 (providing that the subtitle applies “to all employees in the State Personnel Management System within the Executive Branch except temporary employees”). An employee who is specially appointed, however, is employed “at-will” and “may be terminated for any reason that is not illegal or unconstitutional, solely in the discretion of the appointing authority.” SP § ll-305(b). Because of her “at-will” status, as well as the post-termination appeals procedures that apply specifically to specially appointed employees, the Court of Appeals has held that SP § 11-106 protections are afforded to specially appointed employees only for disciplinary actions prior to or other than termination. See Forster v. Office of Pub. Defender, 426 Md. 565, 570, 45 A.3d 180 (2012) (stating that SP § 11-113 procedures apply to at-will employees of the State only where the action taken was prior to termination).

A.C. argues that because Title 11 excepts only temporary state employees from its scope of coverage, the protections of SP § 11-106 should have applied to the circumstances of her termination. See SP § 11-102. In Smack v. Dep’t Of Health And Mental Hygiene, the Court of Appeals addressed the appearance of a conflict between SP § 11-102 and the narrower appeals procedure in SP § 11-303 (a provision applicable to probationary employees) that is similar to SP § 11-305:

To be sure, § 11-106 does apply to disciplinary actions against probationary employees and, as we have seen, termination is a disciplinary action. On the other hand, it is undisputed that § 11-303 does as well. This being the case, the statutes would appear to be irreconcilably in conflict. Section 11-303 is more narrowly focused, however, than § 11-106, referring only to one form of disciplinary action, termination. Thus, they can be reconciled by treating § 11— 303, the more specific of the two, as an exception to § 11-106, the more general. Of course, if there were no § 11-303, § 11-106 undoubtedly would apply to the case sub judice. Where, however, as here, there is a provision that specifically, and without any doubt, addresses the termination, as opposed to the discipline generally, of probationary employees, that provision must control over a provision that applies, but only generally, as § 11-106 does.

Smack v. Dep’t Of Health And Mental Hygiene, 378 Md. 298, 312-13, 835 A.2d 1175 (2003).

Certainly, upon termination, a specially appointed employee, such as A.C. at the time of her termination (who believes that her termination was illegal or unconstitutional), may appeal the termination decision by following the procedures described under SP § 11—113(b). See SP § 11-305 (providing the right to appeal pursuant to the procedures outlined in § 11-113). Pursuant to SP § 11-113, however, the employee must file a written appeal within fifteen days after the employee receives notice of the disciplinary action. SP § 11—113(b)(2)(i).

A.C. was notified of her termination on May 4, 2012. She did not file an appeal with the OAG until June 21, 2012. The OAG denied A.C.’s appeal based on her failure to submit the appeal within the 15-day appeals period. A.C. was, therefore, not entitled either to an internal appeal of her termination under § 11-113 due to her delay in submitting an appeal, nor was she afforded the post-termination procedures provided to various other state employees under SP § 11-106.

Therefore, A.C. was not entitled to judicial review of the Commission’s decision. Further, the decision to deny A.C.’s motion to amend her complaint was within the sound discretion of the trial court. See Schmerling, supra, 368 Md. at 443-44, 795 A.2d 715. Assuming arguendo that the court would have been inclined to grant her leave to amend for these reasons, it would have only delayed the same result, as A.C. had no right to the internal pre-termination procedures she sought. Under these circumstances, the trial court did not abuse its discretion in denying A.C.’s motion to amend her petition for judicial review to seek relief through a writ of mandamus.

In sum, A.C. was not entitled to file a petition for judicial review of the Commission’s decision to deny reconsideration of her complaint, or upon receipt of the EEOC’s “Right to Sue” letter. To pursue her race discrimination and retaliation claims in the circuit court, A.C. was required to file a claim within two years of the alleged discriminatory action—in this case, A.C.’s termination. Further, the Commission was not required to transmit the confidential investigative file of the agency to the circuit court upon the filing of A.C.’s unauthorized petition for judicial review. Lastly, A.C. was not entitled to a writ of mandamus compelling the OAG to afford her the internal pre-termination procedures available under SP § 11-106, or the appeals procedures under SP § 11-305, for her termination in 2012.

The circuit court, therefore, did not err in dismissing A.C.’s petition for judicial review and denying her leave to amend. Accordingly, we affirm the circuit court’s order (1) granting the OAG’s motion to dismiss; (2) granting the Commission’s “motion to dismiss petition for judicial reviewed preclusion from transmitting its investigative file,” and (3) denying A.C.’s request for leave to amend her complaint to include a request for a writ of mandamus.

JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY AFFIRMED. COSTS TO BE PAID BY APPELLANTS.

      . In a letter dated February 22, 2016, A.C. sent a letter to the OAG asserting that,
      "[plursuant to Maryland Rule 7-206, the [Commission] was required to transmit the record from the agency’s determination of No Probable Cause “within 60 days after the agency receive[d] the first petition for judicial review.” (Md. Rule 7-206(d)). The agency's record is now overdue. Please be kind enough to submit the agency’s record .... ”

      . Federal employees’ claims are treated differently; in those cases, the EEOC does have the authority to adjudicate those claims and impose sanctions. See 42 U.S.C. § 2000e-16(b).

      . Section 20-902(a) of the State Government Article provides:
      In an employment discrimination case in which a unit, officer, or employee of the State, a county, or a municipality is a respondent, the rules, procedures, powers, rights, and remedies that apply are the same as those that apply in a discrimination case in which a private person is the respondent.

      . The right to bring a private action after receiving notice of the "Right to Sue” is provided by 42 U.S.C. § 2000e-5(f)(l) as follows:
      If a charge filed with the [EEOC] is dismissed .... the [EEOC] ... shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge [ ] by the person claiming to be aggrieved ... by the alleged unlawful employment practice.

      . Notably, the Maryland Register published a “Proposed Action on Regulation” in 1977 that would have provided a complainant with the opportunity to appeal the Commission’s denial of a request for reconsideration of a “no probable cause” determination. See Maryland Register, Volume 4, Issue 21 (Oct. 7, 1977). Currently, however, S.G. § 20-1005(d)(2) specifically excludes claims that fall under the jurisdiction of the EEOC, including claims of race discrimination.

      . The option to file in state court under Maryland's anti-discrimination statute, SG § 20-606, expired two years after the discriminatory act occurred. § 20-1013(a). In this case, the alleged discriminatory act occurred no later than A.C.'s termination in May of 2012, more than two years prior to the conclusion of the Commission's investigation and the EEOC’s review of her claim. On the other hand, a claimant is permitted to file in federal court within 90 days of receiving the EEOC’s "Notice of Right to Sue” letter. See 42 U.S.C. § 2000e-5(f)(l) ("[WJithin ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge [ ] by the person claiming to be aggrieved.”).

      . The OAG had previously entered its appearance and filed a response on January 12, 2016.

      . Egloff, supra, 130 Md.App. 113, 744 A.2d 1083, was subsequently abrogated by Gosain v. Cty. Council of Prince George's Cty., 420 Md. 197, 22 A.3d 825 (2011). Specifically, the Court of Appeals held that in order to have standing pursuant to the relevant statute, objectors to the development plan were not required to be domiciled in the county. This abrogation of our holding, however, does not impact our substantive analysis.

      . Paragraph (2) provides that “information may be disclosed at any time if both the complainant and the respondent agree to the disclosure in writing.” SG § 20-1101(a)(2).

      . The State Personnel Management System Reform Act of 1996 provides the following protections for certain state employees:
      (a) Before taking any disciplinary action related to employee misconduct, an appointing authority shall: (1) investigate the alleged misconduct; (2) meet with the employee; (3) consider any mitigating circumstances; (4) determine the appropriate disciplinary action, if any, to be imposed; and (5) give the employee a written notice of the disciplinary action to be taken and the employee's appeal rights.
      Md. Code Ann., State Pers. & Pens., § 11-106(a).

      . See Forster, supra, 426 Md. at 590, 45 A.3d 180 (“Section 11-305, which governs termination of at-will employees, including those in the executive service, is analogous to § 11-303, governing termination of probationary employees.”).


source: Caselaw Access Project

author: Wright, J.

license: Public Domain

text:
    158 A.3d 1154
    Daniel Nicholas SMITH v. STATE of Maryland
    No. 987,
    Sept. Term, 2016
    Court of Special Appeals of Maryland.
    April 28, 2017

      Argued by: Krystal E. Quinlan (Paul B. DeWolfe, Public Defender on the brief), Baltimore, MD, for Appellant.
    Argued by: Virginia S. Hovermill (Brian E. Frosh, Attorney General on the brief), Baltimore, MD, for Appellee.

      Panel: Deborah S. Eyler, Wright, Robert A. Zarnoch (Senior Judge, Specially Assigned), JJ.
   Wright, J.

This appeal arises out of the criminal charges, jury trial, and guilty verdict that resulted from events which took place on August 13, 2015.

Appellant, Daniel Smith, appeared before District Court Commissioner Marie Ann Caron in Washington County following Smith’s arrest on a warrant. Caron imposed money bail as a condition of Smith’s release. Smith became angry and shouted at Caron. As a result, Smith was charged with threatening a State or local official.

On June 27, 2016, a jury trial was held in the Circuit Court for Washington County. Smith was convicted by the jury and sentenced to three years’ incarceration, all suspended, with nine months to be served in home detention, followed by a period of probation.

Smith timely appealed, asking:

I. Did the trial court commit plain error in failing to require the jury to find that the Appellant intended to threaten the complainant?
II. Did the trial court err in finding sufficient evidence to convict the Appellant for threatening a State or local official in the manner charged in the State’s indictment?
III. Did the trial court err in admitting testimony that the Appellant spat in the direction of the complainant?

FACTS

On August 13, 2015, Caron met with Smith following his arrest (the “Initial Appearance”). Caron testified that after she set money bail, Smith became furious. Caron testified that Smith “exploded and started cursing, yelling profanities. He said, ‘Fuck you bitch.’ ” Caron testified that Smith also shouted, “I’m going to find you,” and “You better find another job.” Caron further testified that Smith put his finger up, made eye contact with her, and said, “I’m going to find you” while thrusting his finger into the glass.

The guards then came to take him away. Deputy John Hinman of the Washington County Detention Center testified that, as Smith started to leave the room, “he turned back around and spit towards the Commissioner.”

In a pretrial motion in limine, defense counsel moved to exclude any mention of why Smith had been arrested, citing Maryland Rule § 5—404(b), which generally prohibits admission of evidence of the defendant’s prior bad acts, outside of the crime charged. The prosecutor and defense counsel agreed that there would be no mention of the arrest warrant or Smith’s criminal history. Rather, they agreed to stipulate to the jury that Smith had been at the Initial Appearance to be given information about his rights, and that the case for which he was coming in was subsequently dismissed.

Defense counsel also moved to exclude any testimony that Smith spat in the direction of Caron at the conclusion of the meeting. The spitting occurred out of Caron’s view. The circuit court denied the motion, finding that the testimony about the spitting was admissible to provide context to Smith’s words. Defense counsel objected when Deputy Hinman testified that Smith spat in the direction of Caron.

Before the circuit court instructed the jury, defense counsel renewed a motion for judgment of acquittal. Defense counsel noted that the charging document in this case narrowed the charge by alleging that Smith threatened to create bodily injury to a State official, while omitting mention of other modes of threatening. That motion was denied.

Additional facts will be provided as they become relevant to our discussion, below.

DISCUSSION

I. Intent to Threaten

Smith avers that the circuit court committed plain error, which requires reversal, by failing to require the jury to find that Smith intended to threaten Caron.

Smith relies on Elonis v. United States, — U.S. -, 135 S.Ct. 2001, 2012, 192 L.Ed.2d 1 (2015), where the Supreme Court held that 18 U.S.C § 875(c), the federal threats statute, did not apply to negligent conduct. According to the Supreme Court, the pattern jury instruction requiring the government to prove only that a reasonable person would regard the communication as a threat was erroneous and, thus, it reversed the conviction. Id. Smith asserts that the jury instruction in Elonis is “substantially similar to the instruction propounded in the instance case” and, therefore, employs a negligence standard of intent.

The State responds by distinguishing the law under which Smith was convicted, Md. Code (2002, 2012 Repl. Vol.), § 3-708(b) of the Criminal Law Article (“CL”), which includes an intent element, from the federal threats statute, which did not include an intent element. The State also avers that the jury instructions adequately addressed the intent requirement.

Smith recognizes that this issue was unpreserved for appeal because defense counsel did not object at the time of the jury instruction. However, Smith asks that we exercise our discretion to recognize plain error under Maryland Rules 4-325(e) and 8-131. “Plain error is ‘error which vitally affects a defendant’s right to a fair trial.’ ” Richmond v. State, 330 Md. 223, 236, 623 A.2d 630 (1993) (quoting State v. Daughton, 321 Md. 206, 211, 582 A.2d 521 (1990)). It is error that is “compelling, extraordinary, exceptional or fundamental to assure the defendant a fair trial.” Id. (quoting State v. Hutchinson, 287 Md. 198, 203, 411 A.2d 1035 (1980)).

The factors to be considered by an appellate court in deciding whether to review jury instructions for plain error include the opportunity to use the unpreserved issue to illuminate an area of the law, the egregiousness of the error, the likely impact of the alleged error on the defendant, and the degree of lawyerly diligence or dereliction. See, Austin v. State, 90 Md.App. 254, 268-72, 600 A.2d 1142 (1992). In Austin, we stated:

On rarer occasions, we might even be influenced by the opportunity that the notice of “plain error” might afford to illuminate a murky recess of the law. The interpreting and molding of the law is as weighty a consideration in appellate councils as is the correction of error in individual cases.

Id. at 271, 600 A.2d 1142.

Smith asks that we exercise our discretion to review for plain error here. He argues that each of the factors weigh strongly in his favor, most notably that this is an issue of first impression since this is the first time the question has been raised since Elonis. He also asserts that it would afford this Court an opportunity to address the question of if a jury must be instructed to determine whether the defendant intended to threaten as an element of the crime. For these reasons, we accept Smith’s invitation to review for plain error.

We conclude that intent to threaten is indeed an element of the crime which must be included in jury instructions, but hold that the jury was adequately instructed on this element in the present case.

In Elonis, the petitioner was charged under 18 U.S.C. § 8-75(e) , and the jury instructions were as follows:

A statement is a true threat when a defendant intentionally makes a statement in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily injury or take the life of an individual.

135 S.Ct. at 2007 (internal citations omitted). The Court held that requiring the prosecution to prove only that a “reasonable person” would regard the communication as a threat meant that the conduct was determined by a negligence standard. Id. at 2011. The “reasonable person” standard “is inconsistent with the conventional requirement for criminal conduct— awareness of some wrongdoing.” Id. (internal quotation marks and citations omitted). The Court held that the prosecution must prove the defendant’s subjective intent to threaten. Id.

In the present case, Smith was charged under CL § 3-708(b) which imposes an intent requirement that 18 U.S.C. § 8-75(c) lacks. CL § 3-708(b) provides that, “A person may not knowingly and willfully make a threat to take the life of, kidnap, or cause physical injury to a State official, a local official, a Deputy State’s Attorney, an Assistant State’s Attorney, or an Assistant Public Defender.”

Smith correctly states in his brief that the jury instruction was as follows:

A statement is a threat if it was made under such circumstances that a reasonable person hearing or reading the statement would understand it as a serious expression of an intent to physically injure a State Official. In deciding whether the Defendant made a threat you may consider among other circumstances the language the Defendant used and whether a reasonable person hearing or reading the words and knowing all of the circumstances would have considered the words to be a threat.

Smith asks that we read this instruction, derived from the Maryland Criminal Pattern Jury Instruction 4:12.2, as substantially similar to the instruction in Elonis and, therefore, requiring reversal.

Smith fails to recognize that this is merely an excerpt of the jury instruction. On appeal, “instructions are reviewed in their entirety to determine if reversal is required.” Fleming v. State, 373 Md. 426, 433, 818 A.2d 1117 (2003).

Additional relevant jury instructions were as follows:

Intent is a state of mind and ordinarily cannot be proven directly because there is no way of looking into a person’s mind. Therefore, a Defendant’s intent may be shown by surrounding circumstances. In determining the Defendant’s intent you may consider the Defendant’s acts and statements as well as the surrounding circumstances. Further you may but are not required to infer that a person ordinarily intends the nature and probable consequences of his acts or omissions.
... knowingly, knowing is generally defined as having knowledge. Mr. Smith acted knowingly if he realized what he was doing, was aware of the nature of his conduct and did not act through mistake, accident, carelessness or other innocent reason. The State has the burden of proving knowledge beyond a reasonable doubt. Knowledge can be established from all the surrounding facts and circumstances. You may find Mr. Smith had knowledge if he acted with an unlawful purpose and deliberately ignored the obvious.
... willfully means an act that is done knowingly and with deliberate intention. An act that is done merely because of mistake, accident, carelessness or other innocent reason is not done willfully.
The Defendant is charged with threatening a State Official. In order to convict the Defendant the State must prove, one, that the Defendant communicated a threat to another. Two, that the threat was to physically injure a State Official and, three, that the Defendant made the threat knowingly and willfully.
A threat is knowingly or consciously made if the person writing or speaking comprehends the meaning of the words used.[]

Putting aside the differences in the statutes, namely that CL § 3-708(b) includes an intent requirement where 18 U.S.C. § 8-75(c) did not, and assuming arguendo, that the statutes are substantially similar and that Elonis is therefore controlling, Smith’s argument that reversal is required still fails.

In Elonis, the defense counsel requested a jury instruction that “the government must prove that he intended to communicate a true threat.” 135 S.Ct. at 2007 (citation omitted). The circuit court denied that request. Id. The Supreme Court stated that “[t]he jury was instructed that the Government need to prove only that a reasonable person would regard Elonis’s communications as threats, and that was error.[] Federal criminal liability generally does not turn solely on the results of an act without considering the defendant’s mental state.” Id. at 2012 (emphasis added). The Court also stated:

[t]he presumption in favor of a scienter requirement should apply to each of the statutory elements that criminalize otherwise innocent conduct.... communicating something is not what makes the conduct “wrongful.” Here the crucial element separating legal innocence from wrongful conduct is the threatening nature of the communication. The mental state requirement must therefore apply to the fact that the communication contains a threat.

Id. at 2011 (internal quotations and citations omitted).

Here, unlike in Elonis, the jury was instructed that the State must prove that Smith made a threat “knowingly and willfully” and further that willfully means “with deliberate intention” and where the speaker comprehends the words. The reasonable person standard was not used to eliminate the mens rea requirement that is fundamental to find criminal wrongdoing. To rule otherwise would require this Court to ignore the requirement to review instructions in their entirety. Therefore, the jury instruction given in this case adequately meets the Elonis holding that negligence is not sufficient to support a conviction under the relevant threats statute.

II. Sufficiency of the Evidence

Next, Smith avers that there was insufficient evidence to convict him for threatening a State official.

In reviewing the merits of a claim relating to the sufficiency of evidence, the standard of review is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (citation omitted). In assessing the sufficiency of the evidence presented at trial, the limited question before us is not “whether the evidence should have or probably would have persuaded the majority of fact finders but only whether it possibly could have persuaded any rational fact finder.” Allen v. State, 158 Md.App. 194, 249, 857 A.2d 101 (2004) (citation omitted), aff'd, 387 Md. 389, 875 A.2d 724 (2005). The Court views not just the facts, but “all rational inferences that arise from the evidence,” in the light most favorable to the prevailing party. Abbott, 190 Md.App. at 616, 989 A.2d 795. Appellate review should not involve undertaking “a review of the record that would amount to a retrial of the case.” Winder v. State, 362 Md. 275, 325, 765 A.2d 97 (2001) (citation omitted).

“[T]he general rule is that matters essential to the charge must be proved as alleged in the indictment.” Green v. State, 23 Md.App. 680, 685, 329 A.2d 731 (1974) (citation omitted). “[T]he evidence in a criminal trial must not vary from those allegations in the indictment which are essential and material to the offense charged.” Id. (citation omitted).

Smith avers that “the State’s evidence presented at trial deviated from the essential elements the State charged in its indictment.” The statute prohibits threats to “take the life of, kidnap, or cause physical injury!.]” CL § 3-708(b). Smith asserts that the State specified the distinct type of injury threatened, bodily harm, which therefore limited the scope or type of threat that the jury could convict him for, but that the State then failed to present any evidence that Smith threatened bodily injury.

Smith avers that here, the variance between the elements alleged and the evidence presented was fatal to the conviction and requires reversal. To support this position, Smith looks to McDuffy v. State, 6 Md.App. 537, 538, 252 A.2d 270 (1969), where an indictment charged the defendant with forgery of an “American Oil Credit Card” but the evidence proved the forgery of a receipt for purchased merchandise. We reversed the forgery conviction on the grounds of insufficient evidence, stating “an individual cannot be convicted of forging one instrument when the proof shows that he forged an entirely different instrument.” Id. at 539, 252 A.2d 270. “When there is a material variance between the allegata and the probata, the judgment must be reversed.” Green, 23 Md.App. at 685, 329 A.2d 731 (citation omitted). Smith asserts that the same is true here—that he “cannot be convicted for threatening to cause bodily injury to a State official when the State’s evidence at trial does not show that there was a threat to cause bodily injury.”

Smith misinterprets McDuffy, stating that the allegata was “bodily harm” but the probata were nonspecific words. McDuffy would apply if the State had charged Smith with threatening bodily injury (the allegata), but at trial, it attained a conviction by proving that he threatened kidnapping (the probata). That is not the case.

Rather, what Smith is asserting is that the State failed to present adequate evidence that the words Smith communicated to Caron threatened bodily injury. Smith asserts that even if the statement, “I’m going to find you,” was indeed a threat to do “some harm,” that “some harm” is not sufficient to constitute bodily harm beyond a reasonable doubt. Smith states that “egging the complainant’s house, slashing her tires, or lobbying in front of her office building to get her fired” are all types of “some harm” that are not criminalized by the statute.

While Smith correctly identifies examples of harm that a jury could infer from the statement, he fails to recognize that his burden is to persuade that no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt when considering the statements and circumstances. Jackson, 443 U.S. at 319, 99 S.Ct. 2781.

The State responds that the words and actions used by Smith suggested that he was going to harm Caron and the movements toward her, when viewed in context, sufficed for a jury to find a threat of bodily injury. See State v. Rusk, 289 Md. 230, 246, 424 A.2d 720 (1981) (“That threats of force need not be made in any particular manner in order to put a person in fear of bodily harm is well established. Indeed, conduct, rather than words, may convey the threat.”) (Citations omitted).

Here, the State presented evidence that numerous components of Smith’s behavior coalesced to show that Smith threatened Caron with bodily harm, including that Smith threatened to “find” her, he shouted obscenities at her, he made “violent motions” with his body, and that he leaned as close to the glass barrier as he could and pointed at her menacingly. The State further avers that Smith’s action of spitting at Caron is particularly suggestive and notes that in a number of jurisdictions, spitting is sufficient to support a conviction for battery or assault because it shows intent to harm the target. See, e.g., Ray v. U.S., 575 A.2d 1196, 1199 (D.C. 1990); Hobbs v. State, 127 Nev. 234, 251 P.3d 177, 180 (2011); Gilbert v. Commonwealth, 45 Va.App. 67, 608 S.E.2d 509, 511 (2005). The State concludes that these are all words and actions that Smith used to suggest that he was going to harm Caron.

Viewing all rational inferences that arise from the evidence in the light most favorable to the prevailing party, we affirm that a reasonable jury could have found that Smith threatened Caron with bodily harm. Abbott, 190 Md.App. at 616, 989 A.2d 795.

III. Evidence that Smith Spat at Caron

Finally, Smith avers that the circuit court erred in admitting testimony that he spat in the direction of Caron.

Defense counsel moved in limine to exclude evidence that Smith spat at Caron, asserting that it occurred outside of the Initial Appearance. Defense counsel contended that it should be excluded as irrelevant because it happened out of her sight and as unduly prejudicial because the jury could draw harmful inferences regarding Smith’s character and criminal propensity. The following exchange occurred regarding the admission of the spitting:

THE COURT: Well, and to me that’s an uncharged act. I guess they—
DEFENSE COUNSEL: Right. He’s not charged with a Second Degree Assault here so I don’t—
THE COURT: Having said that I don’t know that it’s inadmissible. I mean, it’s part of the, his, part of his conduct as to his person and how is it not admissible.
DEFENSE COUNSEL: Well, I think it simply paints a picture that is not necessary to the charge of actually making a threat to a State official in this case. It’s outside of her presence. He’s not charged with an assault. If he’d been charged with an assault in this case we’d be having a different discussion but he’s not. He’s simply charged with an oral threat with a State official. There’s nothing in the language of Section 3709 that says a gesture or a motion can constitute a threat. It has to be an oral or written statement that’s a threat. Spitting is not an oral or written statement so I think it is outside of what is relevant to the charge of threatening a State official.
THE STATE: Your Honor, often times when you have a statement that is not completely explicit like you do in this case you have to take the context. The context is important. If he were laughing and joking and said this we may not even be here. But the fact that he spit at the end of it after having several outbursts is part of the context of whether he meant it as a threat and whether the trier of fact can determine that it was a threat or not.
THE COURT: I do think that it’s necessary information. For example, if instead of that if he, you know, were making a punching motion while it may not have been charged as an intent to frighten assault it certainly would be part of his demeanor and character during the time that these statements were made.
DEFENSE COUNSEL: And if it had happened during the Initial Appearance again I think it’s something that we’d be having a difference discussion over but this happened outside the Initial Appearance. She doesn’t even see it happen.
THE COURT: Right. But the statute—The purpose of the statute is not to limit what the person sees or is exposed to. The purpose of the statute is to get to any, any threat made. I do think it’s a part of the relevant context. I think it’s probative as to what was meant by the statements that were made. And it’s not unfairly prejudicial. It’s not going to mislead the jury. It’s not going to confuse the jury. It’s simply part of the context of what was said or done.

Defense counsel objected during the trial when a State’s witness testified about the spitting, properly preserving this question for review.

Maryland Rule 5-403 provides that “[although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Whether evidence is relevant under Maryland Rule 5-403 is reviewed for abuse of discretion. Brooks v. State, 439 Md. 698, 708-09, 98 A.3d 236 (2014). “Abuse of discretion” has been said to occur “ ‘where no reasonable person would take the view adopted by the [trial] court,’ or when the court acts ‘without reference to any guiding rules or principles.’ ” Nash v. State, 439 Md. 53, 67, 94 A.3d 23 (2014) (quoting North v. North, 102 Md.App. 1, 13, 648 A.2d 1025 (1994)). A ruling reviewed for an abuse of discretion will not be reversed “simply because the appellate court would not have made the same ruling.” Norwood v. State, 222 Md.App. 620, 643, 114 A.3d 267 (2015) (citation omitted). Rather, a trial court’s “decision is an abuse of discretion when it is well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable.” Id. (citation omitted).

Maryland Rule 5-404(b) prohibits admission of a defendant’s “bad acts” at trial, subject to certain exceptions, reading in full:

Evidence of other crimes, wrongs, or acts including delinquent acts as defined by [Md.] Code [1973, 2013 Repl. Vol.], Courts [& Judicial Proceedings] Article, § 3-8A-01 is not admissible to prove the character of a person in order to show action in conformity therewith. Such evidence, however, may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, common scheme or plan, knowledge, identity, or absence of mistake or accident.

Maryland Rule 5-404(b) prohibits other bad acts evidence to protect against the risk that a jury will assume that because a defendant committed other crimes, he is more likely to have committed the crime for which he is on trial. Smith v. State, 218 Md.App. 689, 709-10, 98 A.3d 444 (2014). The prohibition “reflects a fear that jurors will conclude from evidence of other bad acts that the defendant is a ‘bad person’ and should therefore be convicted, or deserves punishment for other bad conduct and so may be convicted even though the evidence is lacking.” Behrel v. State, 151 Md.App. 64, 124, 823 A.2d 696 (2003) (citations omitted).

The Court of Appeals has established a three-part test for admission of other bad acts. Jackson v. State, 230 Md.App. 450, 458, 148 A.3d 95 (2016). The first step is to determine whether the evidence fits into one or more of the special relevancy exceptions, which include motive, intent, absence of mistake, a common scheme or plan, identity, opportunity, preparation, or knowledge. State v. Faulkner, 314 Md. 630, 634, 552 A.2d 896 (1989). The second step is to determine whether the accused’s involvement in the other crimes is established by clear and convincing evidence. Id. Finally, the court must carefully weigh the necessity for and the probative value of the “other crimes” evidence against any undue prejudice likely to result from admission. Id. at 635, 552 A.2d 896.

Smith asserts that the circuit court engaged in only a “cursory analysis” of the evidence and failed to conduct the second prong of the three-part test. However, Smith fails to recognize that if an act is part of the alleged offense, the act does not constitute an “other” act to which the rule applies. See Dixon v. State, 133 Md.App. 325, 330, 755 A.2d 560 (2000), rev’d on other grounds, 364 Md. 209, 772 A.2d 283 (2001). In Odum v. State, 412 Md. 593, 989 A.2d 232 (2010), the Court of Appeals found no abuse of discretion in the trial court’s admittance of evidence of the defendant’s “other” conduct in a kidnapping prosecution. The Court held that the trial court properly allowed the jury to consider evidence of the robberies, carjacking, and murders that surrounded the kidnapping for which the defendant on trial, because these acts took place “during the criminal episode.” Id. at 615, 989 A.2d 232. Thus, the prohibition against “other crimes” evidence does not apply to evidence of wrongs “that arise during the same transaction and are intrinsic to the charged crime[.]” Id. at 611, 989 A.2d 232. The Odum Court defined “intrinsic” in this context to mean, at a minimum:

other crimes that are so connected or blended in point of time or circumstances with the crime or crimes charged that they form a single transaction, and the crime or crimes charged cannot be fully shown or explained without evidence of the other crimes.

Id.

Therefore, before turning to the merits of Smith’s assertion that the circuit court did not property apply the three-prong test, we must first determine whether the spitting occurred during “the criminal episode,” and we hold that it did. Here, Smith’s spitting at Caron was sufficiently connected with the orally communicated threats to form a “single transaction” as identified by the Odum Court. The entire interview lasted only approximately half an hour. No events intervened between the communications to Caron and the spitting. The oral communications and the spitting all occurred in the same geographic location. For these reasons, we agree that the spitting was sufficiently connected to the single episode so as to be offered for context to the act, not as an “other” act under Md. Rule 5-404(b).

Moreover, the purpose of the rule would not be served by excluding this testimony. The purpose of the rule is to keep a jury from assuming the commission of one crime based on the commission of another crime or act. Here, Smith’s conduct is undisputed. Rather, it was the significance of the conduct that mattered. Therefore, the spitting did not unfairly suggest that Smith committed the act, but rather, appropriately provided context for the act.

Accordingly, the circuit court did not abuse its discretion in admitting the testimony, and we need not turn to the merits of the argument regarding the application of the Faulkner three-prong test.

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

      . 18 U.S.C. § 8-75(c) reads:
      Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.

      . This sentence was added as an additional instruction as requested by defense counsel.

      . In Abbott v. State, we explained CL § 3-708 in a different context, and explained that the predecessor to the current statute "was patterned on a substantially similar provision, U.S.C. § 871(a), which prohibits threats to take the life of or inflict bodily harm upon the President of the United States.” 190 Md.App. 595, 617, 989 A.2d 795 (2010) (citation and footnote omitted).

      . In Elonis, the government too, dispensed with the intent requirement, arguing in closing that it did not matter what Elonis thought at the time he made the threat. This was contrary to the argument made by the State in its closing.