author: Shaw Geter, J.

text:
    158 A.3d 1065
    Deshaune Darnell DARLING v. STATE of Maryland
    No. 2380,
    Sept. Term, 2015
    Court of Special Appeals of Maryland.
    April 27, 2017

      Submitted by: Celia A. Davis (Paul B. DeWolfe, Public Defender, on the brief) Baltimore, MD, for Appellant
    Submitted by: Brenda Gruss (Brian E. Frosh, Atty. Gen., on the brief) Baltimore, MD, for Appellee
    Panel: Krauser, C.J., Berger, Shaw Geter, JJ.
   Shaw Geter, J.

Deshaune Darling, appellant, was convicted by a jury sitting in the Circuit Court for Dorchester County of first-degree premeditated murder; conspiracy to commit first-degree murder; second-degree murder; first-degree assault; conspiracy to commit first-degree assault; second-degree assault; wearing, carrying or transporting a handgun; use of a handgun in the commission of a felony or crime of violence; kidnapping; and conspiracy to commit kidnapping. Appellant presents the following five questions on appeal, which we have slightly rephrased:

I. Did the suppression court err when it denied appellant’s motion to suppress evidence seized from two motor vehicles?
II. Did the trial court err when it admitted into evidence a letter purportedly written by appellant while he was an inmate at the detention center because it was not properly authenticated?
III. Did the trial court err when it admitted into evidence a cell phone service receipt because it was not properly authenticated and constituted inadmissible hearsay?
IV. Did the trial court err when it admitted “other crimes” evidence?
V. Did the trial court err in denying appellant’s motion for judgment of acquittal?

For the reasons that follow, we shall affirm.

FACTS

The State’s theory of prosecution was that appellant and an accomplice murdered Radames Guzman either in revenge for providing information about appellant to the police or to prevent Guzman from testifying against appellant in a subsequent trial. The State’s evidence was circumstantial and came primarily, from evidence seized from two vehicles; the decomposed body of Guzman; and the testimony of Jessie Jo Stewart, a drug addict who bought drugs from appellant. The defense’s theory was that Stewart, killed Guzman to curry favor with appellant. The defense presented no testimonial evidence.

In the summer of 2011, Guzman, a confidential informant for the Delaware State police, made several controlled drug buys from appellant. Based on those buys, a search warrant was issued and executed for appellant’s home in Dover, Delaware. Appellant was arrested, released on bond, but then “disappeared” and failed to appear for trial.

Roughly three years later, on the night of August 2, 2014, Guzman was last seen by his family leaving his house in Delaware. About three weeks later, on August 24th, his partially decomposed and buried body was found in a wooded area near Linkwood and Red Mill Roads in Dorchester County. Guzman’s wrists were bound behind his back with duct tape, and he had three gunshot wounds to the back of his head. He was identified by his fingerprints. A subsequent medical examination revealed that the cause of death was multiple gunshot wounds and the manner of death was homicide.

An investigation into Guzman’s Facebook account and cell phone usage revealed that he was last in contact with a woman named Jessie Jo Stewart. The police interviewed her on September 2, but she told the police that she did not know Guzman or what had happened to him.

Two days after that interview, police set up a covert surveillance at appellant’s home, located at 309 Prior Avenue in Salisbury. A van was parked in the driveway and a Lexus on the street; both vehicles were associated with appellant. Police officers saw appellant leaving his home in the van. They followed him and eventually stopped the vehicle. He was taken into custody, and the van was towed to a Maryland State Police Barrack. Pursuant to a search warrant, two black ski masks and a cell phone service receipt were seized from the vehicle.

After appellant’s arrest, a police canine unit made a positive alert for drugs on the Lexus. The Lexus was also towed to a Maryland State Police Barrack where it was searched pursuant to a search warrant. The executing officer observed that the car and trunk were “very clean” and noted that as soon as the door of the car and trunk were opened he was “overwhelmed” by the “strong odor of cleaning material[.]” He found what appeared to be several spots of dried blood in the trunk—on the molding, interior lid, trunk mat, and side wall. Swabs of the suspected blood were collected, pursuant to an additional search warrant obtained by the officers. DNA analysis on the swabs showed that the blood was from either Guzman or a brother based on DNA swabs taken from Guzman’s mother and father. DNA found on one of the ski masks matched appellant’s DNA.

Stewart entered into a plea agreement with the State in which she agreed to plead guilty to a charge of kidnapping and testify truthfully at appellant’s trial, and in exchange the State would recommend a sentence of eight years. Stewart testified that she was a long-time drug addict and had known appellant, who supplied her with drugs, for about a year prior to the murder. She paid for the drugs with money, if she had it, or with sex.

Stewart testified that appellant asked her to look up Ra-dames Guzman, who she did not know, on the internet and arrange to meet him. She found Guzman on Facebook, and they agreed to meet on the evening of August 2; she told appellant about the arrangement. Messages from Guzman’s and Stewart’s Facebook accounts corroborated her account and were admitted into evidence.

On August 2, appellant picked up Stewart and drove her to the Royal Farms store in Easton to obtain a car he had arranged for her to use to pick up Guzman. Once at the store, they met three people in a gold Grand Marquis. Video footage from the store’s surveillance cameras was introduced into evidence. Stewart entered the Grand Marquis and drove the three occupants to a nearby house where they got out. She then drove to Delaware to meet Guzman. During the trip, she was in cell phone contact with appellant.

After picking up Guzman, she drove to a Royal Farms store in Felton, Delaware and texted appellant while she was in the bathroom. Photographs from the store’s video surveillance corroborated Stewart’s and Guzman’s presence at the store with a Grand Marquis around 11:30 p.m. They then left the store and drove to the Cambridge area of Maryland, during which she was in cell phone contact with appellant. At some point, a car, which she later learned was appellant’s Lexus, pulled up behind her on a deserted, back road and flashed its headlights. She stopped the car she was driving and got out. As she did so, she was shoved to the ground, but saw two men wearing ski masks and all black clothing. One of the men held a gun in his hands. Both of the men pulled Guzman, who was screaming, out of the car. One man hit Guzman in the face with the gun, and both men hit Guzman all over with their fists. The men duct taped Guzman’s hands and ankles and put him in the back seat of appellant’s Lexus. The men then pulled up their masks and she recognized appellant and another man, whom she had seen before but did not know his name.

Stewart followed the Lexus to another deserted, back road where the men placed Guzman in the trunk of the Lexus. They then drove to a migrant camp where appellant sold drugs for several hours. Stewart followed appellant back to Easton where they dropped off the Grand Marquis at the house where she had earlier left the three occupants. She then got into the Lexus with appellant and the other man. Appellant drove to the Royal Farms store in Easton. Video footage from the store’s surveillance cameras shows Stewart and appellant at the store around 3:00 a.m. The video footage also shows appellant pumping gas and then walking to the rear of his car where he leans over as if to listen to noise from inside of the trunk.

Appellant then drove Stewart to her home in Cambridge, during which time she heard “kicking in the trunk.” Before she got out of the car, appellant asked for her cell phone, which she gave to him. Cell phone records from the number on the cell phone receipt found in the van in which appellant was arrested show that between 4:07 a.m. and 4:50 a.m., that cell phone was in the area where Guzman’s body was later found. The next day Stewart went to Walmart and bought a new phone with money appellant had given her. Photographs from the Walmart surveillance video support Stewart’s testimony and show her walking out of Walmart with the phone on August 3 around 7:00 a.m.

Stewart admitted that she had not been honest in her first interview with the police on September 2. She explained that she was scared—appellant had threatened her and her family. Her second interview with the police, roughly two weeks later, on September 17, was played for the jury and more closely followed her trial testimony.

Stewart’s testimony was corroborated, in part, by the testimony of Tytina Williams, her boyfriend Gary Barham, and their friend Donnie Eisman. They testified that on the afternoon of August 2, they drove in Eisman’s car to Salisbury, Maryland where Barham bought drugs from appellant, who was driving a Lexus. An arrangement was made to meet later so appellant could borrow Eisman’s car. That night the three drove to the Royal Farms store in Easton where appellant pulled up in his Lexus with a woman inside. The woman got in the passenger seat of Eisman’s car, and they drove to Bar-ham’s house. The three got out of the car, and the woman drove off. During the early morning hours of the next day, the woman drove the car back to the house. At the same time, appellant drove up in his Lexus with a man known to Barham as “Terrell” sitting in the passenger seat. The woman exited Eisman’s car and got into the back seat of the Lexus, which then left.

Following appellant’s arrest, he was held at the Wicomico County Detention Center. On January 21, 2015, the detention center seized a letter from the outgoing mail addressed to appellant’s fiancée and signed by appellant. A scanned copy was sent to the State’s Attorney’s Office. An expert in the field of handwriting analysis compared exemplars of appellant’s handwriting to the scanned letter and concluded that she “was virtually certain that the letter was written” by appellant. In the letter, appellant admitted that he knew Guzman and knew that he had acted as a drug informant against him. Appellant wrote that Stewart killed Guzman as a “surprise” for him and he “didn’t have anything to do with it.” He wrote that Stewart had asked him about borrowing someone’s car to carry out the surprise. Appellant made arrangements for her to borrow a friend’s car, and sometime that night, she showed him her “surprise”—she opened the trunk and he saw Guzman lying inside.

We will provide additional facts as needed to address the questions raised.

DISCUSSION

I.

Appellant argues that the suppression court erred when it denied his motion to suppress the evidence seized from two vehicles associated with him—a Dodge van and a Lexus sedan. Appellant makes several arguments but mostly focuses on two: the police did not possess reasonable articulable suspicion to justify the stop of the van or to engage in a canine search of the Lexus. The State disagrees, as do we.

When reviewing the denial of a motion to suppress, the record at the suppression hearing is the exclusive source of facts for our review. State v. Rucker, 374 Md. 199, 207, 821 A.2d 439 (2003). We extend great deference to the fact finding of the suppression judge and accept the facts as found, unless clearly erroneous. Id. (citation omitted). A factual finding cannot be clearly erroneous if there is any competent evidence to support the finding below. Hoerauf v. State, 178 Md.App. 292, 314, 941 A.2d 1161 (2008) (citing Fuge v. Fuge, 146 Md.App. 142, 180, 806 A.2d 716, cert. denied, 372 Md. 430, 813 A.2d 258 (2002)). We review the evidence in the light most favorable to the prevailing party, in this case, the State. Cartnail v. State, 359 Md. 272, 282, 753 A.2d 519 (2000). Nevertheless, we must make our own independent constitutional appraisal by reviewing the law and applying it to the facts of the case. Haley v. State, 398 Md. 106, 131, 919 A.2d 1200 (2007) (citing Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)).

Prior to trial, appellant moved to suppress the evidence found in a Dodge van and Lexus sedan. Testifying for the State at the ensuing suppression hearing was appellant’s fiancée and four police officers: Detective Jordan Banks and Deputy J.C. Richardson, Wicomico County Sheriffs Office, and Trooper Kenny Moore and Detective Sergeant Chasity Blades, Maryland State Police Department.

Around 7:00 a.m. on September 4, 2015, Detective Banks set up a covert surveillance at 306 Prior Avenue in Salisbury where appellant and his fiancée lived. Detective Banks was instructed to advise other officers in the area when appellant, who had outstanding warrants, left the home. Sometime after 9:00 a.m., Detective Banks saw appellant exit the home and drive off in the green Dodge van that had been parked in the driveway of the home.

Detective Banks maintained surveillance of the van until it was observed by Trooper Moore, who then fell in behind it. Trooper Moore testified he had been ordered to take appellant into custody based on two outstanding warrants. Trooper Moore testified that he made telephone calls the day before and that morning and confirmed that the two warrants were still valid. He testified that he did not attempt to arrest appellant at his home because of the presence of others and information that appellant may be armed.

While following the van, Trooper Moore observed the van drive 35 miles per hour in a posted 25-mile per hour zone and then 40 miles per hour in a posted 30-mile per hour zone. The trooper activated his emergency equipment, the van stopped, and the trooper pulled his police car in behind it. The trooper exited his car and when he was about halfway to the van from his car, appellant “floored it” and drove off. The trooper ran back to his police car and gave pursuit.

During the ensuing 20-minute chase involving several other police officers, the van reached speeds of 20 to 30 miles per hour over the speed limit; ran stop signs and stop lights; caused damage to cars as they sought to get out of the way; crossed two median strips; and went against the flow traffic. Appellant also called 911 during the chase and said he was armed and threatened suicide. During the pursuit, Trooper Moore also observed appellant holding a black nylon holster and saw appellant’s “right hand going down to his lap” while he changed positions in his seat. The chase ended when appellant stopped the van in front of a store. The police approached the van, pulled appellant from it, and arrested him. Pursuant to a search incident to arrest, drugs were recovered from appellant’s person. The van was then towed to a Maryland State Police Barrack where, pursuant to a search warrant, a handgun, a holster, and several other items were seized from the van.

After appellant was arrested, Deputy Richardson was dispatched to appellant’s home to perform a canine scan for narcotics of a 1997 Lexus. The deputy testified that when he arrived at 10:48 a.m., he saw Detective Sergeant Blades standing near the Lexus, which was parked on the street in front of appellant’s home. Deputy Richardson’s dog, Diablo, alerted to the presence of drugs at the passenger side door of the car. As a result of the positive alert, the Lexus was towed to a Maryland State Police Barrack where Trooper Moore, pursuant to a search warrant, conducted a search of the Lexus for drugs. During the search, the trooper noticed what appeared to be dried blood. The trooper stopped the drug search and transferred the case to the homicide unit.

Appellant argued that the police had insufficient information to justify the stop of the van and the canine search of the Lexus. The suppression court disagreed and denied the motion to suppress as to both vehicles. Crediting the officers’ testimony, the court ruled that the police were justified in stopping the van for several reasons: twice it was observed traveling over the posted speed limit; the police had a valid arrest warrant for appellant; and by calling 911 and stating he had a gun and would use it, appellant was a danger to himself and the public. As to the Lexus, the court stated that while “much [has been] made of the timing” of the canine scan and when the car was towed, the court found that the scan had been completed before it was on the tow truck because the scan report was completed at 10:48 a.m. and the tow truck left at 11:04 a.m.

The van

On appeal, appellant argues that the suppression court erred in denying his motion to suppress the items found in the van because the police lacked probable cause to stop the van prior to the high speed police chase. Specifically, appellant argues that Trooper Moore’s “pacing” of the van could not justify the stop of the van for speeding because it was not an “objective” measurement. He also argues that the two arrest warrants could not justify the stop because the Delaware “capias” document was unsigned and the Dorchester County warrant was stale as it was issued in 2012. The State contends that appellant’s arguments are meritless because the Fourth Amendment was not implicated—there was no seizure because, after the police initiated the traffic stop, appellant “ ‘immediately floored it’ ” and fled the area.

The Fourth Amendment to the United States Constitution, applicable to the States through the Fourteenth Amendment, protects against unreasonable government searches and seizures. Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). From its plain language, the Constitution does not forbid all searches and seizures; just unreasonable searches and seizures. Maryland v. Buie, 494 U.S. 325, 331, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). “Reasonableness” is determined by balancing “the intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.” Id. (citations omitted).

Although a traffic stop does implicate the Fourth Amendment, no violation occurs when a law enforcement officer has probable cause to believe the vehicle stopped has violated a traffic law and the officer temporarily detains the vehicle “ ‘to enforce the laws of the roadway, and ordinarily to investigate the manner of driving with intent to issue a citation or warning.’ ” State v. Green, 375 Md. 595, 609, 826 A.2d 486 (2003)(quoting Ferris v. State, 355 Md. 356, 369, 735 A.2d 491 (1999)(citing Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996))). “Probable cause” is a non-technical conception that would justify the belief by a reasonable person that a crime has been or is being committed. Johnson v. State, 356 Md. 498, 504-05, 740 A.2d 615 (1999). It requires “less evidence than is necessary to sustain a conviction, but more evidence than would merely arouse suspicion.” Williams v. State, 188 Md.App. 78, 90-91, 981 A.2d 46 (quotation marks and citations omitted), cert. denied, 411 Md. 742, 985 A.2d 539 (2009).

In California v. Hodari D., 499 U.S. 621, 626, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991), the United States Supreme Court held that a seizure requires “either physical force ... or, where that is absent, submission to the assertion of authority.” (emphasis in Hodari). Whether conduct constitutes submission to police authority depends on “the totality of the circumstances!!]” United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). “[W]hat may amount to submission depends on what a person was doing before the show of authority: a fleeing man is not seized until he is physically overpowered, but one sitting in a chair may submit to authority by not getting up to run away.” Brendlin v. California, 551 U.S. 249, 262, 127 S.Ct. 2400, 168 L.Ed.2d 182 (2007).

Courts have held that a temporary halt of a car by the police that then drives off does not amount to a seizure. See United States v. Baldwin, 496 F.3d 215, 218-219 (2nd Cir. 2007)(classifying Baldwin’s actions in stopping his car, when approached by a police vehicle operating its emergency equipment, but then speeding off before the officers reached his car, as a momentary stop that did not constitute submission to police authority, and therefore, Baldwin was not seized within meaning of the Fourth Amendment), cert. denied, 552 U.S. 1222, 128 S.Ct. 1324, 170 L.Ed.2d 135 (2008); United States v. Washington, 12 F.3d 1128, 1132 (D.C.Cir.1994)(the defendant who initially stopped his car but who then drove off quickly before the officer even reached the car, was not seized within the meaning of the Fourth Amendment). We agree. Accordingly, because appellant never submitted to the assertion of authority by the police when he drove off as the police were approaching the van, he was never seized, and therefore, there is no Fourth Amendment violation.

Even if we were to believe that the van was “seized” within the meaning of the Fourth Amendment when it stopped, we would find that the stop of the van was justified for two reasons. First, appellant had two outstanding warrants. Even if, as appellant alleges, the “capias” was unsigned and the Dorchester County warrant was issued in 2012, they both could justify the stop of the van because Trooper Moore testified that he called the day before and the day of the stop and confirmed that the warrants were still active. See Ott v. State, 325 Md. 206, 215, 600 A.2d 111 (“[A]n officer may make an arrest on the strength of a warrant, the existence of which has been certified to him by other officers in his department[.]”), cert. denied, 506 U.S. 904, 113 S.Ct. 295, 121 L.Ed.2d 219 (1992). Thus, we agree with the State that the stop of the van was based on probable cause, or at a minimum, on the good faith belief of Trooper Moore that the warrants for appellant’s arrest were current and valid. See United States v. Leon, 468 U.S. 897, 922, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) (holding that the exclusionary rule remedy does not apply where an officer’s reliance on a warrant is objectively reasonable)(citations and footnote omitted).

Second, Trooper Moore testified that he twice paced the van traveling ten miles over the speed limit in two different zones—traveling 35 miles per hour in a 25-mile per hour zone on North Division Street and 40 miles per hour in a 30-mile per hour zone on Eastern Shore Drive. See Md. Code Ann., Transp. Art. § 21-801.1 (stating that a posted maximum speed limit is the maximum lawful speed). An officer may initiate a traffic stop, even if pretextual, when the officer has probable cause to believe that a traffic law has been violated. Whren, 517 U.S. at 812-13, 819,116 S.Ct. 1769. This is because the “subjective motivations” for conducting a traffic stop are irrelevant for Fourth Amendment purposes. Smith v. State, 214 Md.App. 195, 201, 75 A.3d 1048 (citation omitted), cert. denied, 436 Md. 330, 81 A.3d 459 (2013). Contrary to appellant’s argument, “pacing” a vehicle to measure its speed is an objectively reasonable basis to determine whether a vehicle has violated traffic laws. Cf. State v. Harding, 196 Md.App. 384, 389, 9 A.3d 547 (2010) (finding “no issue” regarding the legality of a traffic stop where an officer “paced” a car traveling 50 miles per hour in a 35-mile per hour zone.), cert. denied, 565 U.S. 826, 132 S.Ct. 118, 181 L.Ed.2d 42 (2011).

The Lexus

Although appellant’s argument regarding the Lexus is at best confusing, it seems that he believes that the seizure of the Lexus was illegal, in part, because the scan occurred after the Lexus was seized and placed on the towing bed. Specifically, he argues that the suppression court’s finding that Detective Richardson completed the canine scan at 10:48 a.m. was clearly erroneous.

We do not find clearly erroneous the suppression court’s finding that the scan took place before it was loaded for towing for several reasons. First, Deputy Richardson testified that when he arrived to perform a canine scan of the Lexus, it was parked on the street. Second, Detective Sergeant Blades testified that she was present during the canine scan, that the tow truck was called “shortly after the scan was positive,” and that the Lexus was not on “the rollback when the dog scan was done[.]” Notwithstanding the somewhat confusing testimony of Deputy Richardson that he was dispatched at 10:48 a.m., arrived at 10:48 a.m., and the detective’s incident report that suggests that the scan was completed at 10:48 a.m., the suppression court’s found that the scan took place before the Lexus was loaded on the tow truck. Therefore, even if the suppression court was clearly erroneous in finding that Deputy Richardson completed the canine scan at 10:48 a.m., this finding was irrelevant because, the court’s finding that the Lexus was placed on the tow truck after the scan was completed was not clearly erroneous.

Further, the seizure of the Lexus was valid based on the positive canine scan. The Court of Appeals has held that a canine search of a car during a routine traffic stop is not a search or a seizure under the Fourth Amendment. Wilkes v. State, 364 Md. 554, 581-82 & n.20, 774 A.2d 420 (2001). The decision in Wilkes was based on the holdings in United States v. Jacobsen, 466 U.S. 109, 114, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984)(the opening of a damaged cardboard box in which a private freight carrier employee observed a white powdery substance does not constitute a search within meaning of the Fourth Amendment) and United States v. Place, 462 U.S. 696, 707, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983)(a canine “sniff’ of luggage in a public place does not constitute a search within the meaning of the Fourth Amendment because the investigative technique is so narrow—the manner of the search is minimally intrusive and the content of the information revealed by the procedure is limited). Based on the above, we hold that a canine scan of an empty car in a public area does not implicate the Fourth Amendment. Cf. United States v. Friend, 50 F.3d 548, 551 (8th Cir. 1995), vacated on other grounds, 517 U.S. 1152, 116 S.Ct. 1538, 134 L.Ed.2d 643 (1996)(stating that a dog sniff of a car parked on a public street or alley does not amount to a search under the Fourth Amendment); United States v. Ludwig, 10 F.3d 1523, 1526 (10th Cir. 1993)(holding that random and suspicionless dog sniff of vehicles in motel parking lot was not a search subject to the Fourth Amendment); Horton v. Goose Creek Indep. Sch. Dist., 690 F.2d 470, 477 (5th Cir. 1982)(stating that dog sniffs of vehicles on a public parking lot of a school are not a search within the purview of the Fourth Amendment); Dowty v. State, 363 Ark. 1, 210 S.W.3d 850, 854-55 (2005)(dog scan of a an empty car parked in a restaurant parking lot does not amount to a search under the Fourth Amendment); State v. McMillin, 23 Kan.App.2d 100, 927 P.2d 949, 951-53 (1996)(holding that the dog sniff of vehicle parked in public parking lot did not constitute a “search” under the Fourth Amendment); State v. Garcia, 195 Wis.2d 68, 535 N.W.2d 124, 126-27 (App. 1995)(holding that the dog sniff of the exterior of a car parked in motel parking lot is not a search under the Fourth Amendment because there is no legitimate expectation of privacy around the air space of a car in a public parking lot). Accordingly, the Fourth Amendment was not implicated during the canine scan of the Lexus, and once the dog alerted to the presence of drugs, the police had probable cause to seize and search the car. See State v. Wallace, 372 Md. 137, 146, 812 A.2d 291 (2002)(stating that the law is settled that a positive canine scan for the presence of contraband provides probable cause for a search and seizure), cert. denied, 540 U.S. 1140, 124 S.Ct. 1036, 157 L.Ed.2d 951 (2004).

Additionally, throughout appellant’s arguments as to both vehicles he suggests that the police used the pretext of a drug investigation to cover up for what was a homicide investigation that lacked probable cause. Whether or not the seizure of the vehicles was pretextual is not relevant because, as explained above, no Fourth Amendment violation occurred in the seizing of the vehicles. See also Whren, 517 U.S. at 813, 116 S.Ct. 1769 (“Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.”).

Lastly, appellant argues that the suppression court erroneously found that the police recovered 20 grams of cocaine during a search of the van. State Trooper Moore testified at the suppression hearing that drugs were recovered from appellant’s person following a search incident to arrest. He did not specify an amount. Although defense counsel asked Trooper Moore on cross-examination several questions regarding the subsequently obtained search warrant for the Lexus, the warrant, in which it was written that the police recovered 20 grams of suspected cocaine from appellant’s person following his arrest, was apparently not admitted into evidence. Even if the court’s findings in this regard were clearly erroneous, the findings were irrelevant because the seizure of the Lexus was based on the positive canine sniff, not on the drugs recovered from appellant following his arrest.

II.

Appellant argues that the trial court abused its discretion when it admitted into evidence a letter he purportedly wrote while an inmate at the Wicomico County Detention Center. Specifically, appellant argues that the State’s handwriting expert’s opinion, that she was “virtually certain” that the letter was written by appellant, was not sufficient to authenticate the letter because “absolute certainty” was required. The State responds that appellant is wrong. We agree.

Prior to trial, defense counsel moved in limine to exclude from admission at trial a letter purportedly written by appellant. At a subsequent hearing, a Wicomico County Detention Center employee testified that on January 21, 2015, she intercepted a letter in the outgoing detention center mail and sent a scanned copy of the letter to the State’s Attorney’s Office. The letter was addressed to Sophia Schiabe, appellant’s fiancée, and signed by appellant. Handwriting exemplars were subsequently obtained from appellant. A handwriting expert testified that after comparing the “unique identifying characteristics” of the scanned letter to the handwriting exemplars she was “virtually certain” that the letter was written by appellant. The expert testified that “virtually certain” is the “highest value” a handwriting expert can give a scanned copy of a document while a “positive identification” is the highest value for an original document. The expert explained that the “virtually certain” standard was a positive identification that did not detract from the identification but only denoted that the identification was based on a copy not the original. At the conclusion of the hearing, the court denied the motion in limine, ruling that the letter was properly authenticated. The letter was admitted at trial without objection.

Md. Rule 5-901 (a), governing the authentication of evidence, provides that authentication, a condition precedent to admissibility, “is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” The Rule sets forth a non-exhaustive list of ways a document may be authenticated, including by way of “Comparison by the court or an expert witness with specimens that have been authenticated.” Md. Rule 5—901(b)(3). “[T]he burden of proof for authentication is slight, and the court need not find that the evidence is necessarily what the proponent claims, but only that there is sufficient evidence that the jury ultimately might do so.” Johnson v. State, 228 Md.App. 27, 59, 137 A.3d 253 (quotation marks, citation, and emphasis omitted), cert. denied, 450 Md. 120, 146 A.3d 471 (2016).

As explained in 2 McCormick on Evidence § 227 (John W. Strong ed.1999):

[T]he authenticity of a writing or statement is not a question of the application of a technical rule of evidence. It goes to genuineness and conditional relevance, as the jury can readily understand. Thus, if a prima facie showing is made, the writing or statement comes in, and the ultimate question of authenticity is left to the jury.

Thus, once a prima facie showing of authenticity is made, the ultimate question of authenticity is left to the jury. We review a trial court’s decision regarding authenticity for an abuse of discretion. Miller v. State, 421 Md. 609, 622, 28 A.3d 675 (2011). See also Gerald v. State, 137 Md.App. 295, 304-05, 768 A.2d 140 (“A trial judge’s decision to admit or exclude evidence will not be set aside absent an abuse of discretion.”)(citations omitted), cert. denied, 364 Md. 462, 773 A.2d 514 (2001).

Appellant’s argument that the letter should not have been admitted at trial because it was not properly authenticated is not preserved for our review because he did not object when the letter was admitted into evidence at trial. See Reed v. State, 353 Md. 628, 637, 728 A.2d 195 (1999)(“where a party makes a motion in limine to exclude irrelevant or otherwise inadmissible evidence, and that evidence is subsequently admitted, the party who made the motion ordinarily must object at the time the evidence is actually offered to preserve [its] objection for appellate review”)(quotation marks and citation omitted). Even if appellant had preserved his argument for our review, we would have found it without merit. Clearly, “absolute certainty” is not the required standard for authentication. The expert’s opinion that the letter was “virtually certain” to have been written by appellant based on her comparison of the scanned letter to the exemplars overcame the low bar necessary for authentication.

III.

Appellant argues that the trial court erred when it admitted into evidence a cell phone service receipt found during the police search of the van. Specifically, appellant argues that the receipt was not properly authenticated and constituted inadmissible hearsay. The State disagrees, arguing that the receipt was properly authenticated and was admissible circumstantial evidence, not inadmissible hearsay.

Prior to trial, appellant moved in limine to exclude admission of the receipt at trial. At a subsequent hearing, the State called the general manager of Genesis Services, a cell phone business, who identified the receipt as a sales receipt from his store. He testified that he was “able to pull up a copy” of the receipt from the Genesis Services’s “system,” and had brought a copy of the receipt with him. The receipt memorializes a transaction on July 25, 2014, in which $30 worth of minutes was bought for cell phone number 760-774-5871. The general manager testified that he did not know, and the receipt did not state, who came into the store and purchased the plan.

After the manager’s testimony, appellant stated that he would submit on the authentication argument. Appellant then argued that the receipt constituted inadmissible hearsay because the State was attempting to prove the truth of the matter asserted—that the phone number on the receipt was appellant’s cell phone number. The State responded that the receipt was not hearsay because it intended to use the receipt as “nonassertive circumstantial evidence of a number being associated with [appellant].” The trial court agreed with the State and denied the motion, ruling that the receipt “was not an implied assertion of the factual proposition that that number belonged to the Defendant. Merely, it was circumstantial evidence that could be probative of that fact.” Appellant did not object to the admission of the receipt into evidence at trial.

Authentication

Appellant has failed to preserve his authentication argument on appeal because he “submitted” below on the issue. See Md. Rule 8-131(a)(Ordinarily, the appellate court will not decide any issue “unless is plainly appears by the record to have been raised in or decided by the trial court[.]”). Additionally, appellant has not preserved his argument that the receipt was not properly authenticated because he did not object to the admission of the receipt at trial. See Reed, 353 Md. at 637, 728 A.2d 195. However, even if appellant had preserved his argument for our review, we would have found it without merit. As stated above, Maryland’s authentication rule lists several means of authentication, including: “[cjomparison by the court ... with specimens that have been authenticated” and “[cjircumstantial evidence[J” Md. Rule 5—901(b)(3), (4). Clearly, the receipt was authenticated on both bases—by comparing the receipt with the copy pulled from the Genesis Services’s system, and the similarity of the copy and receipt was circumstantial evidence of the receipt’s authenticity. Like the letter written by appellant, this was sufficient to overcome the low bar necessary for authentication.

Hearsay

“Hearsay” is defined as a “statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Md. Rule 5-801(c). Hearsay is generally inadmissible at trial because of its inherent untrustworthiness, unless some exception applies. See Md. Rules 5-802 and 5-802.1; see also Parker v. State, 365 Md. 299, 312-13, 778 A.2d 1096 (2001). Clearly, the purpose for which the document is admitted will determine whether the evidence constitutes hearsay. “Whether evidence is hearsay is an issue of law reviewed de novo.” Bernadyn v. State, 390 Md. 1, 8, 887 A.2d 602 (2005).

Three cases are relevant to determine whether the receipt constituted inadmissible hearsay or was admissible circumstantial evidence: Bernadyn, supra; Fields v. State, 168 Md.App. 22, 895 A.2d 339, aff'd, 395 Md. 758, 912 A.2d 637 (2006); and Fair v. State, 198 Md.App. 1, 16 A.3d 211 (2011).

In Bemadyn, during the execution of a search warrant for a residence at 2024 Morgan Street in Edgewood, the police arrested Michael Bernadyn, the sole occupant of the residence, and seized, among other things, large quantities of marijuana and a medical bill. The question before the Court of Appeals was “whether a medical bill containing the words ‘Michael Bernadyn, Jr., 2024 Morgan Street, Edgewood, Maryland 21040’ is hearsay when used to establish that Michael Bernadyn lived at 2024 Morgan Street in Edgewood, Maryland.” Bernadyn, 390 Md. at 8-9, 887 A.2d 602. During closing argument, the State repeatedly argued that the bill established that Bernadyn lived at the residence. Id. at 4-7, 887 A.2d 602. The Court of Appeals held that, under the circumstances presented, the bill constituted inadmissible hearsay, explaining that “[t]he State did not argue simply that an item bearing Bernadyn’s name was found in the house and that Bernadyn probably resided at the house. Rather, the State argued that the bill itself was ‘a piece of evidence that shows who lives there.’ ” Id. at 11,14-15, 23, 887 A.2d 602. The Court added that the bill constituted inadmissible hearsay because “the State suggested that Bayview Physicians had Bernadyn’s correct address because ‘any institution is going to make sure they have the right address when they want to get paid.’ ” Id. at 11, 887 A.2d 602.

In Fields, supra, Saturio Fields was charged with, among other things, first-degree murder of a man at a bowling alley. At trial, the trial court admitted into evidence that Fields’s nickname, “Sat Dogg,” was among those displayed on a monitor screen above one of the bowling lanes. Fields, 168 Md.App. at 29, 895 A.2d 339. The question before us on appeal was whether the evidence that Fields’s nickname was on the monitor was an implied assertion that Fields “was present in the bowling alley that night, and was offered by the State to show his presence; or whether it was an item of circumstantial crime scene evidence from which reasonable jurors could infer that [Fields] was present in the bowling alley that night.” Id. at 36, 895 A.2d 339. After reviewing the distinction in Bernadyn between evidence admitted to show the truth of the declarant’s belief and evidence admitted as circumstantial evidence linking defendant to a particular item, we concluded that the nickname on the screen was admissible non-hearsay evidence for it was evidence from which a juror could infer that Fields was present in the bowling alley the night of the murder. Id. at 38, 895 A.2d 339.

In Fair, supra, we reaffirmed our holding in Fields. In Fair, Arnell Fair was arrested, and during a search of an automobile that the police had reason to believe Fair had driven, the police seized marijuana and a firearm, next to which was a paycheck issued to Fair and dated the day before the seizure. Fair, 198 Md.App. at 3-7, 16 A.3d 211. The paycheck was admitted into evidence, and during trial the State emphasized the date on the check, arguing in closing: “[Appellant] who knew that there was a gun in there when he put his paycheck in there within the last 24 hours, because the paycheck was dated the day before and it had to be within 24 hours.” Id. at 7, 16 A.3d 211. On appeal, we held that the trial court committed no error in admitting the check, stating:

[W]e are persuaded that the check was merely circumstantial non-assertive crime scene evidence. Though the recent date of the paycheck was emphasized, the date on which appellant was paid was not a contested issue in the case. The contents of the check, including the date, were not relevant to the crime with which appellant was charged. Its relevance was that its presence supported an inference that appellant, who happened to be the payee of the check, had recently accessed the console and was therefore aware of its contents.

Id. at 37-38.

Appellant has not preserved his argument that the receipt was inadmissible hearsay because he did not object to the admission of the receipt at trial. See Reed, 353 Md. at 637, 728 A.2d 195. Even if preserved, however, we are persuaded that admission of the receipt did not violate the rule against hearsay. Here, the State did not use the receipt to assert that appellant’s phone number was the number on the receipt. Rather, the State used the receipt to link appellant to the phone to establish appellant’s whereabouts and cell communications with Stewart before, during, and after the murder. For example, during closing argument, the State argued: “We know we can trust the number. When [appellant] is arrested a short time later he’s got the phone receipt in his van from Genesis Services. And it’s got the phone number, 760-774-5871. That’s the connection between him to that phone.” (emphasis added). Because there was no assertion “to prove the truth” of any matter contained in the receipt, the receipt was properly admitted into evidence as non-hearsay evidence.

IY.

Appellant argues that the trial court erred when it admitted “other crimes” evidence, ie., evidence that he committed drug crimes in Delaware in 2011. Specifically, appellant argues that the trial court failed to undertake the required three-part analysis before the evidence was admitted at trial, and the evidence was not relevant and unduly prejudicial. The State disagrees, as do we.

Prior to trial, appellant moved in limine to preclude the State from admitting evidence of his 2011 drug crimes involving Guzman to show motive. In support of its motion, defense counsel argued that there was little evidence that appellant knew of Guzman’s participation as a confidential informant in the drug crimes, and therefore, the risk of unfair prejudice outweighed its probative value. The State responded that appellant’s knowledge of Guzman’s participation would be shown through the testimony of the Delaware detective that he gave appellant or left at appellant’s home a copy of the search warrant, which detailed the confidential buys in which appellant and Guzman participated. The court ruled that the State could introduce the other crimes evidence to prove motive but agreed to defense counsel’s request to give a limiting instruction to the jury.

At trial, defense counsel sought and was granted a continuing objection to the testimony of Detective Thomas Lamon of the Delaware State Police. Detective Lamon testified that in June, July, and August 2011, Guzman worked for the Delaware police as a confidential informant and made five controlled buys of cocaine from appellant. One controlled buy occurred in a parking lot off a highway; the other four took place just outside of appellant’s home in Dover, Delaware where he lived with his wife and stepson. The detective testified that he witnessed the controlled buys that occurred outside appellant’s home. Based on the controlled buys, in September 2011, the detective executed a search warrant for appellant’s home, after which appellant was arrested. The detective testified that he could not remember if, after appellant’s arrest, he gave appellant a copy of the search warrant or left a copy at his home. A copy of the search warrant was admitted into evidence. The detective additionally testified that after appellant was released on bond, “we haven’t had [any] word of him. He disappeared.” After Detective Lamon’s testimony, the trial court gave the jury the following limiting instruction:

Ladies and gentlemen, yesterday you heard testimony of alleged prior drug activity from 2011 involving the Defendant in Delaware. The testimony that you heard has the limited purpose in this trial or has a limited purpose in this trial and you may only consider that as evidence of a prior relationship between the [Defendant and Radames Guzman the decedent as well as a possible motive. You may not consider that evidence for any other purpose. And you must not infer that just because the Defendant allegedly committed a prior wrong that he’s more likely to be guilty in the present case. So, again, what you heard yesterday from the Delaware State Police Sergeant is for the limited purpose of showing there is a prior relationship between the Defendant and the decedent and as well as a possible motive. That is the only purpose that you can consider that testimony for.

Md. Rule 5-404(b) provides that:

Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts ... is not admissible to prove the character of a person in order to show action in conformity therewith. 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.

It is well-settled that subject to several exceptions, evidence of other crimes is not admissible in Maryland. Hurst v. State, 400 Md. 397, 406, 929 A.2d 157 (2007). It may be admissible, however, if the “evidence is substantially relevant to some contested issue in the case and is not offered to prove guilt based on propensity to commit crimes.” Id. at 407, 929 A.2d 157 (citation omitted).

A three-part analysis is required before other crimes evidence is admitted. First, the court must determine whether the evidence fits into one or more of the exceptions. Sifrit v. State, 383 Md. 116, 133, 857 A.2d 88 (2004)(citing Faulkner v. State, 314 Md. 630, 634, 552 A.2d 896 (1989)). This is a legal determination. Id. (citation omitted). Second, it must be shown by “clear and convincing” evidence that the defendant engaged in the alleged criminal acts. In this regard, “[w]e review the trial court’s decision to determine if there is sufficient evidence to support” its finding. Id. (citation omitted). Third, the court must find that the probative value of the evidence outweighs any unfair prejudice. Id. (citation omitted) “This determination involves the exercise of discretion by the trial court.” Id. (citation omitted).

Appellant puts forth two arguments to support his contention that the trial court erred in admitting the other crimes evidence. Appellant first argues that the trial court erred because it “did not undertake the required analysis[.]” Contrary to appellant’s argument, the trial court did state that the other crimes evidence was admissible to prove motive and the other crimes evidence was proven by clear and convincing evidence based on what was written in the search warrant and Detective Lamon’s testimony that he witnessed several of the controlled buys. Although it is true that the trial court did not place its balancing of the probative versus prejudicial impact of the evidence on the record, the court was not required to do so. “The fact that the record does not reflect whether a trial court conducted the balancing test does not mean the court did not do so.” Jones v. State, 178 Md.App. 123, 144, 941 A.2d 498 (2008). This is because “[t]here is a strong presumption that judges properly perform their duties.” Id. (quotation marks and citation omitted). See also Ridgeway v. State, 140 Md.App. 49, 69, 779 A.2d 1031 (2001)(rejecting challenge to trial court’s failure to expressly conduct a balancing test regarding admissibility of other crimes evidence), aff'd on other grounds, 369 Md. 165, 797 A.2d 1287 (2002).

We also reject appellant’s second argument that the other crimes evidence was irrelevant and prejudicial because it did not contain “direct proof’ that appellant knew of Guzman’s “cooperation with the police or involvement in the criminal case against him.” It is true that the warrant did not identify Guzman specifically, but appellant could have easily deduced Guzman’s identity based on the dates, places, and circumstances of the drug transactions described in the warrant, which Detective Lamon testified he had either given a copy to appellant or left a copy at appellant’s home where he lived with his wife and stepson. Additionally, appellant’s knowledge that Guzman had acted as a confidential informant can be inferred from the letter he wrote to his fiancée that was confiscated while he was held at the detention center following his arrest. In the letter he wrote:

I have to tell you the truth about what I know [about] what happened to Radames. One day Emily & Jess and I was talking about how friends have been back stabbed by friends. ... So I had told them about how my so called friend had set me up and how the courts was trying to give me a lot of time for it and that I was on the run for the charges. They asked me who he was and I told them his name.

We also note that following the detective’s testimony the trial court gave an instruction to the jury to limit any undue prejudice. Under the circumstances presented, we are persuaded that the trial court did not err in admitting evidence that appellant committed drug crimes in Delaware.

y.

Lastly, appellant sets forth several arguments regarding the sufficiency of the evidence as to his convictions for first-degree murder, his conspiracy convictions (conspiracy to commit first-degree murder, conspiracy to commit first-degree assault, and conspiracy to commit kidnapping) and his handgun convictions (wearing, carrying or transporting a handgun, and use of a handgun in the commission of a felony or crime of violence). Appellant’s arguments are either not preserved or meritless. We shall address each argument in turn.

The standard for appellate review of evidentiary sufficiency 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.’ ” Taylor v. State, 346 Md. 452, 457, 697 A.2d 462 (1997)(quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). “That standard applies to all criminal cases, regardless of whether the conviction rests upon direct evidence, a mixture of direct and circumstantial, or circumstantial evidence alone.” Smith v. State, 415 Md. 174, 185, 999 A.2d 986 (2010)(citation omitted). “Where it is reasonable for a trier of fact to make an inference, we must let them do so, as the question is not whether the [trier of fact] could have made other inferences from the evidence or even refused to draw any inference, but whether the inference [it] did make was supported by the evidence.” State v. Suddith, 379 Md. 425, 447, 842 A.2d 716 (2004)(quota-tion marks and citation omitted)(brackets in Suddith). This is because weighing “the credibility of witnesses and resolving conflicts in the evidence are matters entrusted to the sound discretion of the trier of fact.” In re Heather B., 369 Md. 257, 270, 799 A.2d 397 (2002)(quotation marks and citations omitted). Thus, “the limited question before an appellate court 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)(quotation marks and citation omitted).

First-degree murder conviction

Appellant has waived any argument regarding premeditation. In his brief, appellant makes only one argument to support his position that the State failed to establish premeditation: “[Defense] counsel argued that there was insufficient proof of premeditation to establish murder in the first degree.” This is insufficient. See Md. Rule 8-504(a)(6)(An appellate brief “shall” contain “[ajrgument in support of the party’s position on each issue.”). Because appellant offers no support for his position, we shall not address it. See Poole v. State, 207 Md.App. 614, 633, 53 A.3d 479 (2012)(we will not consider appellant’s argument where it is made in one sentence, in a footnote, and with no supporting argument)(cases cited therein).

Conspiracy convictions

Appellant was convicted of three counts of conspiracy: conspiracy to commit first-degree murder, conspiracy to commit first-degree assault, and conspiracy to commit kidnapping. Appellant argues that the only evidence “tending” to prove conspiracy was Stewart’s testimony that two men, appellant and another man, whom she recognized but did not know his name, assaulted and kidnapped Guzman, and Barham’s testimony that when Stewart returned Eisman’s car, appellant and a man named “Terrell” were waiting to pick her up in appellant’s Lexus. Appellant argues that this testimony was insufficient to prove an agreement to commit conspiracy and points out that Stewart’s and Barham’s testimony lacked credibility.

In Mitchell v. State, 363 Md. 130, 145, 767 A.2d 844 (2001), the Court of Appeals summarized the elements of common law conspiracy as a “combination of two or more persons to accomplish some unlawful purpose, or to accomplish a lawful purpose by unlawful means. The essence of a criminal conspiracy is an unlawful agreement.” (quotation marks and citations omitted). The Court added: “The agreement need not be formal or spoken, provided there is a meeting of the minds reflecting a unity of purpose and design.” Id. (quotation marks and citations omitted). We have stated:

In conspiracy trials, there is frequently no direct testimony, from either a co-conspirator or other witness, as to an express oral contract or an express agreement to carry out a crime. It is a commonplace that we may infer the existence of a conspiracy from circumstantial evidence. If two or more persons act in what appears to be a concerted way to perpetrate a crime, we may, but need not, infer a prior agreement by them to act in such a way. From the concerted nature of the action itself, we may reasonably infer that such a concert of action was jointly intended. Coordinated action is seldom a random occurrence.

Jones v. State, 132 Md.App. 657, 660, 753 A.2d 587, cert. denied, 360 Md. 487, 759 A.2d 231 (2000). See also Alston v. State, 177 Md.App. 1, 42, 934 A.2d 949 (2007)(“Conspiracy may be proven through circumstantial evidence, from which an inference of a common design may be shown.”)(citation omitted), aff'd, 414 Md. 92, 994 A.2d 896 (2010). As to the State’s burden of proof, we have explained: “[I]t is sufficient if the parties tacitly come to an understanding regarding the unlawful purpose. In fact, the State was only required to present facts that would allow the jury to infer that the parties entered into an unlawful agreement.” Dionas v. State, 199 Md.App. 483, 532, 23 A.3d 277 (2011)(quotation marks and citation omitted), rev’d on other grounds, 436 Md. 97, 80 A.3d 1058 (2013).

Contrary to appellant’s argument, Stewart’s and Barham’s testimony was sufficient for a juror to infer a conspiracy between appellant and Terrell Lakes. Cf. Jones v. State, 132 Md.App. at 661-64, 753 A.2d 587 (holding that there was sufficient evidence of conspiracy where, among other circumstances, the defendants emerged from an alley together and approached the victim). Appellant’s argument that Stewart and Barham were not credible is of no consequence—credibility is a matter left to the fact-finder and we do not re-weigh on appeal evidence presented at trial.

Handgun convictions

Appellant argues that there was insufficient evidence to sustain his convictions for wearing, carrying, or transporting a handgun and use of a handgun in the commission of a felony or a crime of violence because the State failed to prove that a “handgun” was used. Appellant, as the State correctly argues, has failed to preserve his argument for our review.

Md. Rule 4-324(a) provides, in pertinent part: “A defendant may move for judgment of acquittal ... at the close of the evidence offered by the State and, in a jury trial, at the close of all the evidence. The defendant shall state with particularity all reasons why the motion should be granted.” (emphasis added). The rule is mandatory. Bates v. State, 127 Md.App. 678, 691, 736 A.2d 407 (citing State v. Lyles, 308 Md. 129, 135, 517 A.2d 761 (1986)), cert. denied, 356 Md. 635, 741 A.2d 1095 (1999).

Appellant argued below that that the evidence did not establish whether he or the “other man” used a gun. On appeal, appellant argues that there was no proof that a “handgun” was used in the crimes. See Crim. Law § 4-203 (criminalizing the wearing, carrying, or transporting of a handgun) and § 4-204 (criminalizing use of a firearm, which includes a handgun, in the commission of a crime of violence or felony). By not arguing below the argument he now raises on appeal, appellant has failed to preserve his argument for our review. See Berry v. State, 155 Md.App. 144, 180, 843 A.2d 93 (because appellant raised different issues in his motion for judgment of acquittal before the trial court than he raises on appeal, he has failed to preserve the issues he raises on appeal for our review), cert. denied, 381 Md. 674 (2004).

JUDGMENTS AFFIRMED.

COSTS TO BE PAID BY APPELLANT.

      . Appellant was sentenced to life imprisonment for both first-degree murder and conspiracy to commit that crime, twenty years of imprisonment for use of a handgun, and thirty years of imprisonment for kidnapping; all sentences to be served consecutively. His remaining convictions were merged for sentencing purposes.

      . Guzman’s body was too decomposed to allow recovery of DNA.

      . Appellant makes no argument regarding the legality of the stop of the van after the high speed police chase presumably because of the additional numerous traffic offenses appellant engaged in during the chase and his 911 call suggesting that he might commit suicide. See Wilson v. State, 409 Md. 415, 439, 975 A.2d 877 (2009)(holding that a police officer may stop a citizen to investigate whether that person is in apparent distress).

      . A “capias” is "[a]ny of various types of writs that require an officer to take a named defendant into custody.” BLACK’S LAW DICTIONARY 188 (11th ed. 2014).


source: Caselaw Access Project

author: Berger, J.

license: Public Domain

text:
    158 A.3d 1087
    Valerie HENEBERRY v. Bashar PHAROAN
    No. 2440,
    Sept. Term, 2015
    Court of Special Appeals of Maryland.
    April 27, 2017

      Argued by: Mark E. Herman, Baltimore, MD, for Appellant
    Argued by: Anthony J. Breschi (John T. Sly, Waranch & Brown, LLC, on the brief) Lutherville, MD, for Appellee
    Panel: Krauser, C.J., Berger, James P. Salmon (Senior Judge, Specially Assigned), JJ.
   Berger, J.

This appeal arises from a medical malpractice case in which the circuit court granted appellee, Bashar Pharoan’s (“Dr. Pharoan”) motion to dismiss one count of appellants’, Valerie Heneberry, et al. (“Heneberry”), complaint. Heneberry alleges that Dr. Pharoan, in performing an appendectomy for acute appendicitis, failed to completely remove her appendix in contravention of his agreement to perform an appendectomy. Heneberry claims that this failure caused her severe pain and resulted in her having to undergo an additional surgical procedure to remove the remaining appendiceal stump. The question we address in this appeal revolves around whether Hene-berry was permitted—as a matter of law—to bring a claim against Dr. Pharoan for breach of contract.

The Circuit Court for Baltimore County granted Dr. Pha-roan’s motion to dismiss Count III (alleging breach of contract) of Heneberry’s amended complaint. Heneberry timely noted an appeal to this Court.

On appeal, Appellant presents one issue for our review, which we rephrase as follows:

Whether the circuit court’s dismissal of Heneberry’s breach of contract claim was legally correct, where the basis of the claim was that Dr. Pharoan agreed to perform an appendectomy but did not remove the stump of her appendix.

For the reasons discussed below, we shall affirm the judgment of the Circuit Court for Baltimore County.

FACTUAL AND PROCEDURAL BACKGROUND

On or around October 15, 2011, Heneberry went to the Greater Baltimore Medical Center (GBMC) complaining of abdominal pain. She was treated by Dr. Pharoan, the surgeon who was on call for the emergency room. After a CT scan, Dr. Pharoan diagnosed Heneberry with acute appendicitis and recommended that she undergo a laparoscopic appendectomy, a surgical procedure to remove the appendix. Dr. Pharoan performed the procedure at GBMC. His medical notes describe an apparently uneventful surgery and that Heneberry responded well to the surgery. During the surgery, however, Dr. Pharoan removed most of the appendix, but left the “stump” of the appendix in place.

Thereafter, Heneberry alleges that she experienced severe pain and was forced to undergo an additional surgical procedure, performed by a different physician, to remove the stump of the appendix left behind by Dr. Pharoan. Heneberry alleges that Dr. Pharoan’s failure to completely remove her appendix was the cause of her subsequent pain and surgery.

On September 11, 2014, Heneberry filed a complaint in the Circuit Court for Baltimore County against Dr. Pharoan for medical malpractice. Count I of the complaint was based on the grounds of negligence, and Count II alleged a loss of consortium. On March 17, 2015, Heneberry filed an amended complaint, this time adding Count III, a breach of contract claim based on the same facts.

On March 31, 2015, Heneberry filed a motion for partial summary judgment on the issues of liability on the negligence count and on the breach of contract count. On June 2, 2015, the court denied partial summary judgment on Count I for negligence based on the existence of a dispute of material fact related to causation. Thereafter, Dr. Pharoan filed a motion to dismiss Count III of the amended complaint, and on August 28, 2015, the court heard oral argument on the motion. In an Order filed August 31, 2015, the circuit court granted Dr. Pharoan’s motion to dismiss for failure to state a claim on Count III, the breach of contract claim.

The case proceeded to a jury trial on the issue of liability for medical negligence. The jury found in favor of Dr. Pharoan on Heneberry’s claim of negligence. On December 16, 2015, He-neberry noted a timely appeal.

DISCUSSION

I.

Before reaching the merits of this case, we first address a procedural concern regarding the circuit court’s consideration of materials appended to Dr. Pharoan’s motion to dismiss and his reply to Heneberry’s opposition. Heneberry argues in her appeal to this Court that Dr. Pharoan’s

attempt to introduce a part of [Heneberry’s] deposition in support of their motion misdirects the court from construing the four corners of [Heneberry’s] Amended Complaint and introduced clear error.

More specifically, the circuit court considered a consent form executed by Heneberry prior to surgery, as well as Heneberry’s deposition testimony, in connection with Dr. Pharoan’s motion to dismiss. The trial court explained the basis of its reasoning in the following way:

[W]hen you turn to the second page of that consent form, Paragraph 4 reads, quote, No warranty or guarantee has been given to me by anyone as to the results that may be obtained from the procedures covered by Paragraph 1 ....
[E]ven though that’s outside of the four corners of the pleadings, I think it is important to refer to [the consent form], and also important to note that [Heneberry], when deposed, never indicated that there was any express promise, special promise, special agreement in connection with this procedure.
I do think and find that the Dingle case is instructive .... [S]ince there is no allegation of a special promise or agreement, any type of expressed warranty or agreement, then it is appropriate for the [c]ourt to grant [Dr. Pharoan’s] motion to dismiss as to the breach of contract claim under Count [III].

Accordingly, we first consider whether the trial court should have converted the motion to dismiss into a motion for summary judgment pursuant to Maryland Rule 2-322(c). The pertinent part of the Rule governing the disposition of preliminary motions provides:

If, on a motion to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 2-501, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 2-501.

Md. Rule 2-322(c) (emphasis added).

For purposes of our review on appeal, we treat the trial court’s grant of a motion to dismiss as one for summary judgment when the court “is presented with factual allegations beyond those contained in the complaint ... and the trial judge does not exclude such matters.” Nickens v. Mount Vernon Realty Group, LLC, 429 Md. 53, 62-63, 54 A.3d 742 (2012) (quoting Okwa v. Harper, 360 Md. 161, 177, 757 A.2d 118 (2000)); see also Smith v. Danielczyk, 400 Md. 98, 105, 928 A.2d 795 (2007) (explaining that the appellate court assumes extraneous documents were considered by the trial court where “[t]he record does not indicate that the extraneous documents or averments were ‘excluded’ ” from the court’s consideration); accord Anne Arundel Cnty. v. Bell, 442 Md. 539, 552, 113 A.3d 639 (2015) (treating the trial court’s grant of a motion to dismiss as a grant of summary judgment where the court considered affidavits attached to the motion); Okwa, supra, 360 Md. at 177, 757 A.2d 118 (treating the motion as one for summary judgment where the court relied on facts stated at a motions hearing and in the plaintiffs affidavit, but not in the complaint); Green v. H & R Block, Inc., 355 Md. 488, 501, 735 A.2d 1039 (1999) (treating the trial court’s dismissal as a grant of summary judgment where the court in its memorandum opinion referred to exhibits appended to a motion filed by the defendant).

We have held, however, that it is proper for a trial court to decide a motion to dismiss without converting it to a motion for summary judgment when the court considers, or does not exclude, materials that are central to the allegations in the complaint. See Advance Telecom Process LLC v. DSFederal, Inc., 224 Md.App. 164, 175-76, 119 A.3d 175 (2015). In Advance Telecom, where the material not excluded from consideration (a “Teaming Agreement”) was the document upon which the plaintiffs claim was based, we held that the document merely supplemented the allegations in the complaint, rather than adding new facts to the court’s consideration. Id.

Like the “Teaming Agreement” in Advance Telecom, the language of the consent form in the instant case consisted of the sole basis for Heneberry’s allegation that an enforceable contract was formed prior to surgery. Indeed, Heneberry’s counsel averred at the motions hearing that the consent form provided the language of the alleged contract between Hene-berry and Dr. Pharoan. Heneberry’s counsel stated the following:

[Tjhere’s a potential for liability if you find, as a matter of law, that there was a breach of contract by looking at the informed consent, even if she doesn’t remember specifically what the language is. That’s why we too adopt and accept ... being bound by the informed consent because that is ... the surgical procedure he promised to do.

Heneberry alleged that Dr. Pharoan made certain promises to her. Those allegations were based on the language in the consent form. As such, the court’s consideration of the consent form did not convert the motion to dismiss into a motion for summary judgment.

In the circuit court’s oral opinion, the court also referred, specifically, to Heneberry’s deposition testimony, highlighting the absence of any indication that Dr. Pharoan made a separate or additional promise sufficient to establish a claim for breach of contract. Although it was not necessary to the court’s conclusion to consider anything other than the sufficiency of the allegations in the complaint, the expressed reason for the court’s reliance on the testimony at Heneber-ry’s deposition was to emphasize the absence of facts necessary to establish a breach of contract claim in a medical malpractice case. The trial court, therefore, did not consider any additional facts, but rather the absence of certain necessary facts in materials outside of the four corners of the complaint.

In addition to referring to these two documents appended to Dr. Pharoan’s motion and reply, the court also did not expressly exclude other materials appended to other court filings that were outside of Heneberry’s complaint and amended complaint. See Danielczyk, supra, 400 Md. at 105, 928 A.2d 795. Assuming arguendo that the trial court’s consideration of these materials transformed the motion to dismiss to one for summary judgment pursuant to Md. Rule 2—322(c), the outcome would have been the same as there were no material facts were in dispute. Moreover, “when reviewing the grant of either a motion to dismiss or a motion for summary judgment, an appellate court must determine whether the trial court was legally correct.” Hrehorovich v. Harbor Hosp. Cntr., Inc., 93 Md.App. 772, 785, 614 A.2d 1021 (1992). Because the trial court did not exclude all extraneous materials from its consideration of the motion to dismiss, we treat the trial court’s dismissal of the breach of contract claim as a determination of summary judgment in favor of Dr. Pharoan.

Viewing the motion as one for summary judgment, the trial court was well within its discretion to consider the consent form and Heneberry’s deposition testimony, as well as other relevant documents submitted by the parties. See id. at 783-85, 614 A.2d 1021 (1992). As we explained in Hrehorovich, “Rule 2-322(c) gives the trial court discretion to convert a motion to dismiss to a motion for summary judgment by considering matters outside the pleading.” Id.

We recognize that converting a motion to dismiss to a motion for summary judgment carries the risk of unfair prejudice to a non-movant by potentially denying that party “a reasonable opportunity to present material that may be pertinent to the court’s decision as required by Maryland Rule 2-501.” Worsham v. Ehrlich, 181 Md.App. 711, 722-23, 957 A.2d 161 (2008). This risk, however, is not present here, where both parties had the opportunity to fully brief the issues on which the court based its determination and had the opportunity to submit materials pertinent to the court’s decision. Green, supra, 355 Md. at 502, 735 A.2d 1039 (concluding the non-moving party suffered no unfair prejudice as a result of converting the motion where the court’s opinion turned on the plaintiffs failure to establish facts necessary to assert a prima facie case and both parties had fully briefed that issue).

In this case, Heneberry suffered no unfair prejudice as a result of converting the motion to dismiss into a motion for summary judgment. The central issue in this case is whether Heneberry was required to and did properly allege that Dr. Pharoan made an additional, separate promise sufficient to establish a breach of contract claim. Both parties had ample opportunity to argue and brief this issue to the trial court. Critically, Heneberry filed a motion for partial summary judgment, which included the claim for breach of contract. Indeed, with her motion, Heneberry appended several exhibits, including Dr. Pharoan’s deposition testimony. Furthermore, neither party controverted any material facts contained in the exhibits filed with the court. Heneberry, therefore, did not suffer prejudice by the court’s consideration of any materials outside of the four corners of the amended complaint. Accordingly, we treat the circuit court’s grant of Dr. Pharoan’s motion to dismiss as a grant of summary judgment in favor of Dr. Pharoan.

We review de novo a trial court’s grant of a motion for summary judgment. See Worsham, supra, 93 Md.App. at 784. We described our standard of review on appeal in Worsham in the following way:

The question of whether a trial court’s grant of summary judgment was proper is a question of law subject to de novo review on appeal. Livesay v. Baltimore, 384 Md. 1, 9, 862 A.2d 33 (2004). Summary judgment is appropriate when there is no genuine dispute as to any material fact and the party in whose favor judgment is entered is entitled to judgment as a matter of law. Maryland Rule 2—501(f). On appeal, the appellate court will review the record in the light most favorable to the non-moving 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). In reviewing a grant of summary judgment under Maryland Rule 2-501, we independently review the record to determine whether the parties properly generated a dispute of material fact and, if not, whether the moving party is entitled to judgment as a matter of law. Wells Fargo Home Mortgage, Inc. v. Neal, 398 Md. 705, 714, 922 A.2d 538 (2007) (quoting Livesay, 384 Md. 1, 9-10, 862 A.2d 33 (2004)).

Id. at 723-24.

We note that there is no genuine dispute of material fact in this case, as the parties do not dispute any statements made by the parties prior to the surgery, nor the series of events that followed. We construe the facts in the light most favorable to Heneberry as the non-moving party to determine whether Dr. Pharoan was entitled to judgment as a matter of law.

II.

Heneberry’s argument on appeal is that Dr. Pharoan is liable for breach of contract because he had a “contractual obligation to perform an appendectomy, which is the removal of the appendix, not a portion of the appendix, and [there was] no testimony that he intended to leave a portion behind.” In Heneberry’s words, “[Heneberry] contracted with [Dr. Pha-roan] for the removal of all of her appendix, and not just some of her appendix ... Appellant [pled] sufficient facts to entitle! ] her to relief because ‘all’ means all.” Thus, according to Heneberry, the circuit court erred by granting judgment in favor of Dr. Pharoan on the breach of contract claim, rather than granting Heneberry’s motion for partial summary judgment on the same claim.

Although Maryland courts generally recognize that the doctor-patient relationship is contractual in nature, and that the doctor impliedly agrees to exercise a reasonable degree of care and medical skill, the failure to exercise that care is tortious in nature and is generally not governed by contract law. Benson v. Mays, 245 Md. 632, 636, 227 A.2d 220 (1967). As we explain below, to establish a prima facie case of breach of contract where the facts relate to a physician’s performance of a medical procedure, the plaintiff must show that the physician made an additional promise or warranty separate and apart from the physician’s agreement to properly perform the procedure. See Dingle v. Belin, 358 Md. 354, 372, 749 A.2d 157 (2000) (“Malpractice is predicated upon the failure to exercise requisite medical skill and is tortious in nature. The action in contract is based upon a failure to perform a special agreement.”) (quoting Robins v. Finestone, 308 N.Y. 543, 546, 127 N.E.2d 330, 332 (1955)); Sard v. Hardy, 281 Md. 432, 451-52, 379 A.2d 1014 (1977).

Heneberry’s amended complaint, adding Count III claiming breach of contract, incorporated no new facts, such as an additional promise or warranty supporting the breach of contract claim. On the count of negligence, Heneberry alleged that Dr. Pharoan diagnosed her with appendicitis, recommended surgery, and stated that he was “familiar with that procedure and could perform it safely and successfully.” Hene-berry argued that “the procedure, an appendectomy, was not performed properly and in accordance with generally accepted medical and surgical standards.” Finally, Heneberry alleged, “[a]s a sole, direct and proximate result of the negligence of the Defendant in failing to completely remove Plaintiff Hene-berry’s entire appendix, she suffered injuries and damages.”

Similarly, on the breach of contract count, Heneberry alleged the following:

10. The Plaintiff contracted with the Defendant for the removal of all of her appendix, and not just some of her appendix.
11. The Defendant breached the contract by removing only a portion of her appendix.
12. The Defendant left an [appendiceal] stump measuring 3.5 centimeters.
13. Thereafter, the Plaintiff came under Dr. [Rotolo’s] treatment and care. Dr. [Rotolo] performed a second surgical procedure and removed the stump.
14. As a direct and proximate result, Plaintiff incurred medical expenses, other treatment and care, injuries and [was] otherwise damaged and wounded.
15. The Defendant breached his contract because he agreed to and was contracted to remove the complete appendix as a part of an appendectomy.
16. The Defendant breached the contract by failing to do so.
17. That as a direct and proximate consequence, Plaintiff suffered injuries and damages.

In her amended complaint, Heneberry merely alleged that Dr. Pharoan agreed to perform an appendectomy and that not all of the appendix was removed; therefore, Heneberry argues that a breach of contract occurred. Indeed, in the amended complaint, Heneberry alleged virtually the same facts as those alleged in the original complaint for negligence, adding no new allegations to establish any special promise or warranty in addition to Dr. Pharoan’s agreement to perform an appendectomy. Heneberry, therefore, did not allege the facts necessary to sustain a prima facie case of breach of contract in her amended complaint.

Notably, Heneberry’s counsel was never able to articulate to the trial judge any evidence of a separate promise in addition to Dr. Pharoan’s ordinary obligation to properly perform the appendectomy. At the hearing on Dr. Pharoan’s motion, the following exchange occurred:

MR. HERMAN: [T]here is from our viewpoint from being called on the scene to the time of my client being submitted to general anesthesia, that important period, that conversation is where the breach of contract action (inaudible). What representations, what statements of fact, what did Dr. Pha-roan promise to do? And at that point, he dearly, in consideration for being paid, made affirmative representations of what he would do.
THE COURT: But I thought Mr. Breschi said he took your client’s deposition, and she really didn’t have any recollection of what was said or communicated with the doctor.
MR. HERMAN: That’s—that’s—and she doesn’t recall what happened on the surgical table either, Your Honor, (inaudible).
THE COURT: Yes, but—but with respect to the breach of contract and the need to establish that some special promise, special agreement, expressed agreement was made, she didn’t recall anything. There doesn’t seem to be any dispute about that.
MR. HERMAN: Absolutely none. But he does, and he put it in writing, and he represented what it was that he was going to do. In other words, it is typical, Your Honor, I know you’ve seen it time and time again, where the one side causes the other side adversely and says, now, tell the jury what it was that [you] promised you would do as part of your surgical procedure to get her to consent, and he would say, just as he did in deposition, just as I represented to you, he was going to take the appendix out.

(Emphasis added.)

Even the consent form executed by Heneberry prior to surgery did not provide any indication of any additional promise or warranty. In fact, as the trial court noted, the consent agreement expressly provided that “[n]o warranty or guarantee has been given to me by anyone as to (a) the results that may be obtained from the procedures” that were to be performed as indicated in the first paragraph of the form. Because Heneberry could not establish a case for breach of contract without an express promise separate from the agreement to perform the surgery, the trial court correctly determined that Dr. Pharoan was entitled to judgment as a matter of law.

The court’s reasoning was based in part on its analysis of Dingle, which recognized that a breach of contract claim may be available in limited circumstances when the medical provider makes an additional promise or gives a separate warranty. 358 Md. at 371, 749 A.2d 157. Although the Court in Dingle held that the plaintiff properly alleged the breach of contract claim, the Court further explained:

[A]s an alternative to tort-based actions, a separate action for breach of the contract may lie when the doctor acts in contravention of a contractual undertaking, at least in some settings. Those actions are often founded either on a breach of warranty theory, alleging a warranty by the physician of a particular result, or on a promise independent of a medical procedure.

Id. at 371 (emphasis added).

In Maryland, when a plaintiff alleges that a medical procedure was not properly performed, the claim is ordinarily governed by tort law. In Sard v. Hardy, the Court of Appeals held that a patient could not submit to a jury a medical malpractice claim under a breach of contract theory where the claim was based on the physician’s assurances to the patient that she was sterile and not capable of becoming pregnant. See generally Sard, 281 Md. at 432, 379 A.2d 1014. Without more, this type of reassurance “does not by itself rise to the level of a guarantee, and beyond a mere hopeful expression of opinion or prediction of an expected result.” Id. at 454, 379 A.2d 1014. The Court in Sard summarized the basis for our policy of distinguishing cases that allege a separate or additional promise, and those in which the circumstances merely call into account whether the physician performed the procedure with the proper standard of care, in the following way:

Courts confronted with the question whether a physician may be liable in contract for breach of express warranty have agreed generally that a physician is not an insurer of the success of his treatment and absent an express agreement, does not warrant or guarantee that he will effect a given result. Coleman v. Garrison, 349 A.2d 8, 11 (Del. 1975). The argument against imposing contractual liability on the physician is that considering the unpredictability of medical results and the differences in individual patients, it is unlikely that the physician of integrity can in good faith promise a particular outcome.

Id. at 451-52, 379 A.2d 1014 (emphasis added).

In short, Dingle and Sard reflect the policy in Maryland and other states that medical malpractice cases typically sound in negligence and are not determined by the laws of contract, unless unique circumstances are present. Accordingly, we do not recognize contract actions in medical malpractice cases unless the physician made some special promise or warranty apart from a promise to use the medical skill necessary to deliver the treatment in the manner generally accepted by other physicians in the community. In some cases, however, the court may find that these special circumstances exist and that a jury may consider whether the physician breached a contract that is separate and distinct from the physician’s agreement to provide medical treatment.

In an attempt to counter this well-established principle, Heneberry cites numerous out-of-state cases in which a plaintiff was allowed to proceed with a breach of contract claim; however, all of these cases involve a special promise or warranty in addition to the doctor’s commitment to perform the medical procedure itself. In Noel v. Proud, the Supreme Court of Kansas found that a case for malpractice may be brought under a theory of breach of contract where the plaintiff alleged “a special contract between [the] physician and his patient,” and where there was “an express warranty by [the] physician for which there was consideration given by his patient.” 189 Kan. 6, 11, 367 P.2d 61, 66 (1961). Before reaching that conclusion, the court found that the alleged warranty from the physician to the patient in that case—that his hearing “would not be worsened as a result of the operations” even if his hearing was not improved—constituted a special contract for a particular result. Id. at 11, 367 P.2d at 66.

In other cases raised by Heneberry, various courts allowed juries to hear medical malpractice claims under a breach of contract theory where the physician had promised the plaintiff that he or she would be cured by the procedure. For instance, the New York Court of Appeals in Robins, held that a contract claim could lie where the physician agreed to remove a growth during a relatively minor procedure that involved an incision into the abdomen, and the physician promised to cure the plaintiff by removing the growth and that he could return to his occupation in two days or less. See Robins, supra, 308 N.Y. at 545-46, 127 N.E.2d 330. During the procedure, the physician punctured the abdomen wall twice, and the plaintiff had to undergo a major operation for which he incurred extensive medical costs and missed work for a month. The Court found that the claim set forth a cause of action in contract, because the plaintiff alleged that the physician specifically warranted an outcome.

Heneberry cites a series of cases in which the plaintiff alleged that a physician warranted the effectiveness of a sterilization or other birth-control related procedure. For instance, in Shaheen v. Knight, the Pennsylvania trial court explained that a doctor and his or her patient may form a contract for a particular result such as sterilization. Pa. D. & C.2d 41, 44 (Pa. Com. PI. 1958). The trial court found the plaintiffs contract theory to be viable because he had alleged that “under a special contract,” the doctor “agreed to make him immediately and permanently sterile and guaranteed the results thereof.” Id.

Similarly, Heneberry cites as support for her argument, Custodio v. Bauer, a California case in which doctors gave a specific warranty for a particular result to a patient who underwent a procedure to have part of her fallopian tubes removed to prevent pregnancy. 251 Cal.App.2d 303, 59 Cal. Rptr. 463 (1967). Critically, the Court of Appeals of California found that the allegations were sufficient to permit the breach of contract claim, because the plaintiffs alleged “an express contract” with the physician such that he could “be held liable for a promise to effect a cure or a certain result.” Id. at 315, 59 CaLRptr. 463. Indeed, the court articulated a policy similar to ours requiring an additional promise or warranty in order to hold a physician liable for breach of contract:

It is thoroughly settled in California that ... [i]n the absence of an express contract the physician or surgeon does not warrant cures. By taking a case he represents that he possesses the ordinary training and skill possessed by physicians and surgeons practicing in the same or similar communities and that he will employ such training, care and skill in the treatment of his patients.

Id. at 314-15, 59 CaLRptr. 463.

In Guilmet v. Campbell, the court found that the plaintiffs had put forward enough evidence to present a jury question as to whether three surgeons’ statements to the plaintiff constituted a “specific, clear and express promise to cure or effect a specific result which was in the reasonable contemplation of both themselves and the patient and which was relied upon by the patient.” 385 Mich. 57, 70, 188 N.W.2d 601, 607 (1971). In that case, the plaintiff underwent surgery for a bleeding peptic ulcer at the defendant doctors’ recommendations. The plaintiff alleged that, before deciding to undergo surgery, the doctors provided numerous reassurances that the procedure was simple and routine, involved no serious risks of complications, that he could “throw [his] pillbox away,” and that he would be out of work “[ajpproximately [t]hree to four weeks at the most.” Id. at 63, 188 N.W.2d at 603-04. Further, the plaintiff alleged that one doctor stated, “[y]ou can eat as you want to, you can drink as you want to, you can go as you please.” Id. at 62, 188 N.W.2d at 603. Notably, the court offered the following caveat to its holding:

Here we do not say that every time a doctor says to his patient prior to the formation of their contract for example “I recommend an immediate appendectomy. It will fix you up fine. You will be back at work in no time. Do not worry about it ... I have done hundreds of these operations. It is really a very simple thing” [—that] [i]t may be said that he contracted to “cure” his patient.

Id. at 69, 188 N.W.2d at 606.

Unlike the cases that Heneberry cites in support of her breach of contract claim, Heneberry does not refer us to any additional or special promise or warranty regarding the surgical procedure. Indeed, when the circuit court inquired into what evidence could satisfy “the need to establish that some special promise, special agreement, expressed agreement was made,” Heneberry’s counsel responded by simply summarizing the case as follows:

This is just so straight forward. He made a representation this is how the surgical procedure will be, and this is what he was going to do. And the bottom line is, Your Honor, no matter how many words we parse, he didn’t do it.

Heneberry’s claim clearly overlooks a necessary element to establish a case for breach of contract when the facts of the case relate to a physician’s delivery of medical care. Without an additional express promise or warranty, Heneberry’s claim that she suffered damages as a result of Dr. Pharoan’s failure to completely remove all of her appendix falls squarely within the traditional realm of medical negligence.

Viewing all of the facts and reasonable inferences in the light most favorable to Heneberry, Heneberry did not—and could not—establish that Dr. Pharoan made a promise or warranty separate from his obligation to perform the appendectomy with the requisite standard of care. We, therefore, affirm the circuit court’s determination that Dr. Pharoan was entitled to judgment as a matter of law. Accordingly, we affirm the circuit court’s entry of judgment in favor of Dr. Pharoan on Count III of the amended complaint.

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

      . Appellants are Valerie Heneberry and Patrick O’Brien, who were married at the time of the circumstances surrounding Heneberry's complaint.

      . Heneberry phrased two issues for our review as follows:
      1. Did the court err in dismissing Appellant's breach of contract claim given that Appellant alleged that Appellee promised to remove all of the appendix, however, he left a residual appendi-ceal stump necessitating a second operation to remove it?
      2. Did the court err in denying Appellant’s Motion for Partial Summary Judgment on the issue of liability given that Appellee agreed to remove all of the appendix while leaving behind a residual appendiceal stump measuring 3.2 centimeters, as documented by the pathology report from the second procedure?

      . Attached to Dr. Pharoan's motion to dismiss were several exhibits, including Heneberry's original complaint, Heneberry’s expert's certificate for Dr. Carl Warren Adams and the report filed in the Health Care Alternative Dispute Resolution Office, and Heneberry's deposition testimony. Dr. Pharoan’s reply to Heneberry’s opposition to the motion to dismiss contained the consent form signed by Heneberry prior to surgery.

      . The trial court did not need to bolster its finding that Heneberry's complaint did not allege facts sufficient to state a claim for breach of contract in a medical malpractice suit. The court could have excluded from its consideration on the record all other extraneous materials, looked solely within the four corners of the complaint, and granted the motion to dismiss based on Heneberry's failure to state a claim for which relief can be granted. See Md. Rule 2-322(c).

      . The exhibits attached to Heneberry's motion for partial summary judgment included Dr. Pharoan's surgical notes, Dr. Pharoan's deposition testimony, a pathologist’s report, and the deposition of Dr. Carl Warren Adams and his resume.

      . To be clear, we treat the circuit court’s order as a grant of summary judgment in favor of Dr. Pharoan, despite the styling of the order as a grant of Dr. Pharoan’s motion to dismiss. See, e.g., Hrehorovich, supra, 93 Md.App. at 783, 614 A.2d 1021 ("[Appellees’s] motion was titled 'Motion to Dismiss’ and not 'Motion to Dismiss, or in the Alternative, for Summary Judgment’ .... ”). As we have observed, “[n]othing in the language of the rule suggests that the application of the rule is triggered only by a motion with 'Summary Judgment’ in the title.” Id.

      . Heneberry does not argue that Dr. Pharoan warranted the outcome of the surgery or a special promise to cure as is the basis for other breach of contract cases. Indeed, counsel for Heneberry conceded before the circuit court that Heneberry does “not claim[] at all that somehow that there was a promised result. We didn’t say that Dr. Pharoan promised [Heneberry] ... that she’ll be up and about in a week or two.”

      . Here, the form described the procedure to be performed as a "laparo-scopic appendectomy.”

      . In Robins, unlike most of the other cases where a contract action was allowed, the plaintiff hoped to bring his claim under a theory of negligence rather than merely breach of contract because the statute of limitations was shorter for contract than tort claims. 308 N.Y. at 547, 127 N.E.2d at 332. The Court found that the plaintiff’s claim was barred as a result of finding that his claim sounded in contract law rather than in negligence. See id.

      . Two other cases cited by Heneberry—Burns v. Barenfield and Shuster v. Sutherland—reiterate the same point that a physician may be held liable under contract law when he or she makes a special promise or warranty to the plaintiff above and beyond the commitment to perform the operation with the degree of skill of other professionals in the community. See Burns v. Barenfield, 84 Ind. 43 (1882); Shuster v. Sutherland, 92 Wash. 135, 158 P. 730 (1916).

      . Two similar cases include Murray v. Univ. of Pa. Hospital, 340 Pa.Super. 401, 490 A.2d 839 (1985) (permitting a breach of contract claim where the physician gave an express warranty that the tubal ligation procedure would prevent future pregnancies), and Hackworth v. Hart, 474 S.W.2d 377 (Ky. 1971) (permitting a breach of contract claim where doctor told the plaintiff that the vasectomy operation would be a "fool-proof thing, 100%”). In both Murray and Hackworth, the physician provided an express warranty beforehand that the procedure would prevent reproduction in the future, the procedure allegedly failed, and the plaintiffs were allowed to go forward on a breach contract claim.

      . In light of our determination that the circuit court did not err in granting summary judgment in favor of Dr. Pharoan on Heneberry’s breach of contract claim, we need not address Heneberry’s additional argument on appeal that the circuit court erred by denying Heneberry's motion for partial summary judgment on the same issue.