author: Wright, J.

text:
    170 A.3d 818
    IN RE: DAVID P.
    No. 1039,
    Sept.Term, 2016
    Court of Special Appeals of Maryland.
    September 27, 2017

      Argued by: Wyatt Feeler (Daniel Kobrin, Paul B. DeWolfe, Public Defender on the brief) all of Baltimore, MD, for Appellant.
    Argued by: Virginia S, Hovermill (Brian E. Frosh, Attorney General on the brief) all of Baltimore, MD, for Appellee.
    Panel: Wright, Kehoe, Shaw Geter, JJ.
   Wright, J.

This appeal arises out of a judgment of the Circuit Court for Wicomico County, sitting as a juvenile court, finding that David P. (“David”) was involved in attempted first-degree arson and reckless endangerment. At a subsequent disposition hearing, David was placed in the custody of the Maryland Department of Juvenile Services (“department”) and sent to an out-of-state facility for detention.

David now appeals, questioning the sufficiency of the evidence as to both findings of involvement.

QUESTIONS PRESENTED

We have reworded David’s questions for clarity, as follows:
I. Was the evidence sufficient to support the juvenile court’s finding of David’s involvement in attempted arson?
II. Was the evidence sufficient to support the juvenile court’s finding of David’s involvement in reckless endangerment?
III. Did the juvenile court err in denying the motion to suppress an out of court identification?

For the reasons stated below, we answer the first two questions in the negative. Accordingly, we vacate David’s convictions, and we do not reach the third question.

FACTS

Nuzhat Nada provided testimony as to the following facts.

On March 21, 2016, Nada was at her residence at 205 Walnut Street, Salisbury, in Wicomico County. At 7:00 p.m. on that evening, Nada heard a noise at her door and walked over to open it. No one was standing at the doorway, but she observed a person running away. Nada later heard the noise a second time, and again opened the door to find no one there. She then stood by the door, waiting to hear the noise again. When the noise started for a third time, she immediately opened her door and saw David running from her doorstep, looking backwards over his shoulder. Nada then followed David to his house, at 121 Chestnut Street, with the intention of informing his mother about what had happened. However, Nada returned home without speaking to anyone at David’s house.

A few minutes after returning home, Nada heard a noise at her door again. She opened the door to again see someone running away, and she saw two matches burning on the bricks in front of her door. Nada explained that the matches were about “one and a half feet away from the door,” and that she has “a lot of wood and cones” on her other porch.

Nada then called the police. She testified that while waiting for the police, she stood by the matches and let them burn because she “didn’t want to touch them.” She testified that she did not extinguish the matches, but watched to make sure they did not fly off, fearing that the matches could ignite dry leaves at the side of the house “because of the wind,” Nada testified that the matches left scorch marks “on the bricks” in front of the home and that she had photos of the marks. No such photos were offered as evidence.

The police arrived and Nada conveyed her account of what had happened. An officer took Nada to 121 Chestnut for a show-up identification. Beforehand, neighborhood residents spoke with Nada about their own experiences with David.

Officer Brian Weglarz testified next for the State. He confirmed responding to a call at 205 Walnut Street and meeting with Nada at her residence. Weglarz further testified that he observed “two extinguished matches” in front of the home on a concrete area attached to the front door. Weglarz described the matches as “about two inches in length, the cut that you would find out of a match book.” On cross examination, Weglarz answered affirmatively when asked if Nada had extinguished the matches by stepping on them, and he also answered affirmatively when asked if Nada “had to actually extinguish” the matches. Weglarz further testified that he did not see scorch or burn marks on the porch. Finally, Officer Carroll testified for the State and provided testimony regarding the circumstances of the show-up identification. The above was the extent of the evidence actually presented at trial.

STANDARD OF REVIEW

The Court of Appeals has remarked: “In a juvenile delinquency matter, an appellate court will ‘review the case on both the law and the evidence.’ We review any conclusions of law de novo, but apply the clearly erroneous standard to findings of fact.” In re Elrich S., 416 Md. 15, 30, 5 A.3d 27 (2010) (internal citation omitted). This Court has noted that “[a] delinquent act is an act which would be a crime if committed by an adult.” In re Lavar D., 189 Md.App. 526, 585, 985 A.2d 102 (2009) (citing Md. Code (1973, 2013 Repl. Vol.), Courts & Judicial Proceedings Article § 3-8A-01(l)).

Accordingly, as to the sufficiency of the evidence, we apply to juvenile delinquency proceedings the same standard of review as in criminal trials:

“Appellate review of the [trial] court’s judgment on the evidence is limited to determining whether there is a sufficient evidentiary basis for the court’s underlying factual findings. [T]he appropriate inquiry is not whether the reviewing court believes that the evidence establishes guilt beyond a reasonable doubt, but rather, whether after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”

Elrich S., 416 Md. at 30, 5 A.3d 27 (quoting In re Anthony W., 388 Md. 251, 261, 879 A.2d 717 (2005)); see also In re Kevin T., 222 Md.App. 671, 676-77, 114 A.3d 297 (2015).

The State notes that circumstantial evidence suffices to affirm a conviction as long as “the circumstances support rational inferences from which the trier of fact could be convinced beyond a reasonable doubt of the guilt of the accused.” Painter v. State, 167 Md.App. 1, 11, 848 A.2d 692 (2004) (citation omitted). “Circumstantial evidence is as persuasive as direct evidence. With each, triers of fact must use their experiences with people and weigh probabilities.” In re Lavar D., 189 Md.App. at 586, 985 A.2d 102 (quoting Mangum v. State, 342 Md. 392, 400, 676 A.2d 80 (1996)).

The juvenile court, as the finder of fact, “possesses the ability to choose among differing inferences that might possibly be made from a factual situation and [the appellate court] must give deference to all reasonable inferences [that] the fact-finder draws.” In re Landon G., 214 Md.App. 483, 491, 78 A.3d 431 (2013) (citations omitted). “However, [w]hen an action has been tried without a jury, the appellate court will review the case on both the law and the evidence. It will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and will give due regard to the opportunity of the trial court to judge the credibility of the witnesses." In re Antoine H., 319 Md. 101, 108, 570 A.2d 1239 (1990) (quoting Md. Rule 8-131(c)).

DISCUSSION

I. Sufficiency of the Evidence—Attempted Arson

David avers that the State failed to meet its burden for the charge of attempted arson, because it failed to prove the requisite mens rea for attempted first-degree arson—a specific intent crime. Holbrook v. State, 364 Md. 354, 371, 772 A.2d 1240 (2001).

The crime of first-degree arson is set out by statute:

(a) A person may not willfully and maliciously set fire to or burn:
(1) a dwelling; or
(2) a structure in or on which an individual who is not a participant is present.

Md. Code (2002, 2012 Repl. Vol.), Criminal Law Article (“CL”) § 6-102(a). The statutory offense expands the universe of the buildings covered, but retains the common-law definition of arson which has four elements:

(1) that the building burned was a dwelling house or outbuilding within the curtilage; (2) that the building burned was occupied by another; (3) that the building was actually burned, as mere scorching would not suffice; and, (4) that the accused’s mens rea was willful and malicious.

Holbrook, 364 Md. at 367, 772 A.2d 1240 (citation and footnote omitted). No arson takes place where “the fire is not communicated to any part of the structure itself.” Hines v. State, 34 Md.App. 612, 618, 368 A.2d 509 (1977) (citation omitted).

Both parties agree that arson is a specific intent crime. “A specific intent is not simply the intent to do the immediate act but embraces the requirement that the mind be conscious of a more remote purpose or design which shall eventuate from the doing of the immediate act.” Smith v. State, 41 Md.App. 277, 305, 398 A.2d 426 (1979). Applying this understanding to arson, the mens rea requires not only having an intent to do the immediate act of setting a fire, but also embracing the purpose of causing harm to person or property. Further, “[m]ere knowledge that a result is substantially certain to follow from one’s actions is not the same as the specific intent[.]” Spencer v. State, 450 Md. 530, 567, 149 A.3d 610 (2016) (quoting Thornton v. State, 397 Md. 704, 738, 919 A.2d 678 (2007) (internal citation omitted)).

Although the State agrees that the “willful and malicious” standard imposes a specific intent mens rea requirement, the State, first relying on Richmond v. State, 326 Md. 257, 604 A.2d 483 (1992), avers that “setting a fire with reckless and wanton disregard for the consequences satisfies the willful and malicious requirement” of the statute. Id. at 268, 604 A.2d 483 (citation omitted). “While this reasoning may have been true in 1992 when Richmond was filed, it is not so today.” Holbrook, 364 Md. at 371, 772 A.2d 1240. This is the case because the General Assembly repealed the arson statute in 1993, one year after Richmond, and enacted new definitional provisions defining “willfully” and “maliciously.” Id. “Maliciously” is defined as “acting with intent to harm a person or property,” CL § 6-101(c), and “willfully,” is defined as “acting intentionally, knowingly, and purposely.” Id. § 6-101(e). Therefore, in order to be convicted of arson, a person must have acted “with intent to harm a person or property,” and “intentionally, knowingly, and purposefully.” Holbrook, 364 Md. at 371, 772 A.2d 1240.

The State interprets the statutory change and Holbrook to require specific intent to do harm, but not more than reckless or wanton disregard for the consequences. The State posits that a person may be convicted where specific intent is found as to the conduct—ie., the lighting of a match, but mere recklessness is found as to the consequences that follow—¿e., the burning of the building.

We find no merit in this position, as it ignores the concept of a specific intent crime as one in which the party has not only the “intent to do the immediate act” but where his mind is also “conscious of a more remote purpose or design which shall eventuate from the doing of the immediate act.” Smith, 41 Md.App. at 305, 398 A.2d 426. We also decline the State’s invitation to examine the legislative history of the statute to determine the legislative intent to support the State’s position. Rather, we continue to follow the standard stated in Hol-brook—in order to be convicted of arson, a person must have acted “with intent to harm a person or property,” and acted “intentionally, knowingly, and purposefully.” 364 Md. at 371, 772 A.2d 1240. Although David may have acted without regard for the consequences of his actions, following the General Assembly’s abrogation of the common law, the State’s assertion—that specific intent to light a fire, but with only reckless and wanton disregard for the consequences, will satisfy the mens rea required for an arson conviction—is incorrect.

Here, David was charged with attempted arson rather than arson itself. A conviction for an attempt crime does not require completion of the crime, but rather “[a] person is guilty of a criminal attempt when, with intent to commit a crime, the person engages in conduct which constitutes a substantial step toward the commission of that crime whether or not his intention is accomplished.” Grill v. State, 337 Md. 91, 94, 651 A.2d 856 (1995) (citation omitted).

An attempt crime has a mens rea element of intending to commit the underlying crime. Dabney v. State, 159 Md.App. 225, 234-35, 858 A.2d 1084 (2004). “[A] defendant must be charged with an attempt to commit a specifically designated crime, and it is to that crime one must look in identifying the kind of intent required.” Young v. State, 303 Md. 298, 306 n.5, 493 A.2d 352 (1985) (citation omitted). “It is a mistake to speak of attempts generally as having a single monolithic intent element. Some attempts, to be sure, require a specific intent. Other attempts, however, require only a general intent. An attempt to commit a specific intent crime requires the same ultimate specific intent as would the consummated crime." Wieland v. State, 101 Md.App. 1, 40, 643 A.2d 446 (1994) (emphasis added).

The “requisite intent need not be proved by direct evidence.” Young, 303 Md. at 306, 493 A.2d 352 (citation omitted). “It may be inferred as a matter of fact from the actor’s conduct and the attendant circumstances.” Id. (citations omitted).

As discussed supra, arson is a specific intent crime, and because an attempt to commit a specific intent crime requires the same ultimate specific intent as the consummated crime, the exact question before us is whether the evidence sufficed to prove that David had the specific intent to willfully and maliciously set fire to Nada’s home. “Since intent is subjective and, without the cooperation of the accused, cannot be directly and objectively proven, its presence must be shown by established facts which permit a proper inference of its existence.” Spencer, 450 Md. at 568, 149 A.3d 610 (citation and quotations omitted). Accordingly, our evaluation focuses on the circumstances surrounding David’s actions, and the action itself, although we are looking to the actions to understand the actor’s intent—not to evaluate the actions for sufficiency of the actus reus.

David states that, “[t]wo matchbook matches dropped on the flame-retardant landing in front of a home cannot constitute an overt act evincing specific intent to commit arson.”

The facts again are as follows. After thrice causing a ruckus on her porch that brought Nada out of her home, David lit two matches and dropped them on the bricks of Nada’s front stoop, about one and a half feet away from her door. He then ran away. A wicker doormat was nearby, and there were quantities of dry leaves around the side of the house. Nada also had “a lot of wood and cones” on her other porch.

Although ample case law illustrates conduct that satisfies the elements and constitutes an attempted arson, very little case law illustrates conduct that does not rise to required level. We look to both Maryland and our sister states for guidance.

In Maner v. State, 43 Ga.App. 772, 159 S.E. 902 (1931), the Court of Appeals of Georgia addressed the threshold for an attempt crime in an appeal related to attempted arson. The Court concluded that an attempted arson occurred, where “reasonable construction of the acts alleged ... force one to the conclusion that such acts were committed for no purpose other than to set fire to the building, and thereby commit arson.” Id. at 903.

The presence of an accelerant is a common characteristic in convictions for arson. See State of Missouri v. Ailshire, 664 S.W.2d 630, 633 (Mo. Ct. App. 1984) (“The presence of gasoline splashed on the basement walls, gasoline vapors in the stairwell, and a fire burning on the bottom three steps, in close proximity to the basement door, constituted a ‘substantial step’ towards the commission of the offense of arson.”). The use of an accelerant allows a reasonable inference of intent, because it forces one to the conclusion that the actor was intending to set fire to a building, as there is no other rational purpose for conduct such as splashing gasoline on building walls.

Here, the State points to the “wicker mat nearby” where David “dropped two lit matches” as evidence to support the finding of involvement. The State avers that David’s “ ‘overt act’ of lighting the matches, coupled with the fact that he dropped them where he did, constituted a ‘substantial step’ towards the arson.” The State seemingly asks that we infer the required intent from these actions. We agree that where David put the matches is relevant, but unlike the State, we believe that where he put the matches cuts against a finding of a malicious or willful intent to burning the dwelling. We explain.

Although flammable material was nearby, the matches were laid on an nonflammable material, and not on the wicker mat. Similarly, David could have easily collected the nearby pine-cones or dry leaves to create an accelerant, but he did not do so. Where he laid the matches supports the conclusion that David was a juvenile playing with matches, not that he lit the match intending to set a fire. If an adult struck a match and threw it into an empty brick fireplace, we would not say that person was building a fire. Rather, to show intent to build a fire, we would understand that the person must first gather logs and sticks, arrange them, and only then, strike and lay the match. The mere striking and laying of a match on an nonflammable surface alone does not show intent to start a fire.

Further, the intent requirement is that David intended to set a fire to cause harm. Because of his prior behavior, Nada immediately went onto the porch as soon as she heard noise again—so quickly that she saw the matches still burning. David’s behavior essentially put Nada on notice that mischief was occurring, allowing her to immediately respond to his subsequent actions, and thereby negating any remote chance that may have existed that the matches may have ignited nearby materials. This evidence is not a basis by which a reasonable fact-finder could conclude that David did have an intent to harm, which is the State’s burden and which was not met in this case.

The State seems to ask us to affirm that David acted with specific intent, because he took a substantial step by laying the matches near the mat, and that his actions fell short of completion because the wind did not blow in such a way to carry the lit matches to the mat, while also blowing in such a way to not extinguish the matches, all before Nada came to the porch, despite her previous appearances. This theory of the case requires an external, uncontrollable, factor to intervene in order for the crime to reach fruition and therefore, undercuts the finding of specific intent.

Rather than viewing his actions as circumstances from which we can infer intent to maliciously set fire to her home, we instead infer a lack of specific intent to start a fire in order to bum the building or to cause harm to Nada herself. A “reasonable construction of the acts alleged” allows one to conclude that David was a reckless juvenile playing with matches, rather than facts which “force one to the conclusion that such acts were committed for no purpose other than to set fire to the building.” Maner, 159 S.E. at 902-03. To allow a finding of involvement on these facts would allow a conviction for attempted first-degree arson every time that a person intentionally drops a still-burning cigarette butt on a sidewalk that happens to be feet away from a building where there are nearby leaves. This position completely ignores the requirement of intending to cause harm or acting purposefully or knowingly, and it expands the bounds of arson far beyond its original constraints.

For this reason and those discussed above, we conclude that the State failed to prove that David acted willfully or maliciously with an intent to bum the dwelling, and that no rational trier of fact could have found this essential element of the crime beyond a reasonable doubt. Elrich S., 416 Md. at 30, 5 A.3d 27.

II. Sufficiency of the Evidence—Reckless Endangerment

Next, David asks if the evidence was sufficient to sustain the finding of his involvement in reckless endangerment.

CL § 3-204(a), provides, in relevant part:
(a) A person may not recklessly:
(1) engage in conduct that creates a substantial risk of death or serious physical injury[] to another[.]

The State’s burden in proving a charge of reckless endangerment is to show beyond a reasonable doubt that, “1) that the defendant engaged in conduct that created a substantial risk of death or serious physical injury to another; 2) that a reasonable person would not have engaged in that conduct; and 3) that the defendant acted recklessly.” Perry v. State, 229 Md.App. 687, 697, 146 A.3d 529 (2016) (citation omitted). The aim of the criminal prohibition is “to deal with the situation in which a victim is put at substantial risk of death or serious bodily harm but may, through a stroke of good fortune, be spared the consummated harm itself.” Moulden v. State, 212 Md.App. 331, 355, 69 A.3d 36 (2013) (citation omitted).

Here, unlike above, David admits the required mens rea, recklessness, but avers that the State failed to prove the actus reus of the crime—conduct that creates a substantial risk to another, In order to evaluate this claim, we look to what constitutes a “substantial risk.”

For a risk to be “substantial” it need not be “almost certain to occur.” Williams v. State, 100 Md.App. 468, 505, 641 A.2d 990 (1994). Rather, “[i]t is enough .,. that one has created an unnecessary risk that his conduct might cause the harmful result.” Id, (emphasis in original). “It is well established in Maryland that the actus reus of creating a substantial risk is to be measured objectively, not subjectively ... on the basis of the physical evidence in the case.” Perry, 229 Md.App. at 700, 146 A.3d 529 (citations and internal quotations omitted).

Much of the related case law in Maryland addresses situations where a party has recklessly brandished a firearm. Although not directly on point, the discussion and standards set by these cases do inform what types of conduct create a substantial risk.

To sustain a conviction for reckless endangerment in the case of a firearm, it is necessary to establish that the firearm was operable. Moulden, 212 Md.App. at 358, 69 A.3d 36 (“cases hold that the risk of death or injury created in recklessly handling a loaded, operable firearm is that the weapon may discharge”) (emphasis added). However, a loaded, and operable gun on its own also does not immediately create a substantial risk, and “even if a gun is fired, that standing alone, is not enough to constitute the commission of a crime.” Perry, 229 Md.App. at 701, 146 A.3d 529 (citation omitted). Rather, there is sufficient evidence of a substantial risk when a person puts a loaded and operable firearm in a position to discharge lethal force at an individual. E.g., State v. Albrecht, 336 Md. 475, 505, 649 A.2d 336 (1994).

To analogize the risk of harm from a match to a gun, David asks that we view the risk from the two lit matches as analogous to the situation in Perry where “shooting a pistol into the air or in the general direction of a roadway but considerably short” was found to be insufficient to be considered a substantial risk. 229 Md.App. at 701, 146 A.3d 529 (citation omitted). We agree. As David identifies, force was created, but not related in any meaningful way towards a person. Because the matches were so overwhelmingly likely to burn themselves out on the nonflammable surface, as they did, they created no appreciable risk of spreading harm to the house, much less the person inside.

David also points us to a similar case from our sister state of New York, where the New York appellate court stated:

Here, respondent lit a match, set the corner of a piece of paper on fire, and then dropped the piece of paper on the floor and stamped out the fire. The auditorium in which he was located had no carpeting, and no other students were in proximity to him. Although the seats in the auditorium were described as being made of wood, there was no proof that the seats could be set on fire by a single piece of burning paper. Because no risk of injury to any other person was actually created by the conduct of respondent, his conduct does not constitute reckless endangerment in the second degree. Consequently, the order must be reversed and the petition dismissed.

In re Kysean D.S., 285 A.D.2d 994, 728 N.Y.S.2d 323, 324-25 (2001) (emphasis added).

The State again points to Nada’s presence watching over the matches as a relevant fact of why the fire did not spread and asserts that the fire could have spread and caused Nada injury, but for her presence to prevent such harm. However, this argument once again ignores that Nada was immediately on the porch to watch or put out the matches, because she was on notice of David’s misbehavior because of his own, immediately prior actions and mischief on her porch just moments prior.

We agree with David that the likelihood that the matches would ignite the home and cause injury to Nada cannot be described as a “substantial risk.” The juvenile court noted that the lit matches “potentially could have resulted in the house catching on fire and harm to both the house, and potentially, to Ms. Nada in this case.” While the juvenile court is correct that these outcomes potentially could have occurred, that outcome is again reliant on an uncontrollable, external factor of the wind carrying the matches in such a way so as to keep them lit while blowing them to a combustible material, and ignores the aspects of his conduct that mitigated whatever very remote chance did exist. We cannot agree that the possibility of such an occurrence was likely enough for any rational trier of fact to conclude that it constituted a “substantial risk.”

The record does not disclose what motivated David to harass his neighbor. Certainly, a reasonable person in Nada’s position could have perceived the implicit threat in David’s behavior, namely that lit matches could just as easily be placed on flammable material. David’s conduct might have been the basis for a finding of involvement with the criminal harassment, CL § 3-803, but that is not the way that he was charged. For this reason, we reverse the juvenile court’s finding of David’s involvement with reckless endangerment.

Because we reverse both findings of David’s involvement, we need not address the merits of the third question regarding the suppression of the show-up identification.

JUDGMENTS OF THE CIRCUIT COURT FOR WI-COMICO COUNTY, SITTING AS A JUVENILE COURT REVERSED. COSTS TO BE PAID BY WICOMICO COUNTY.

      . In his brief, appellant asks:
      1) Was the evidence sufficient to support David’s involvement in attempted arson where there was no reasonable chance David’s behavior could have resulted in the burning of a dwelling?
      2) Was the evidence similarly insufficient to support David’s involvement in reckless endangerment for the same reasons?
      3) Did the court err in denying the motion to suppress an out of court identification when the identification occurred immediately after Ms. Nada’s neighbors identified David for her and gave her "negative information” about him?

      . Because we do not reach David’s question regarding the show-up identification, we have omitted the facts surrounding it.

      . The State was required to prove “the intent to commit a crime coupled with some overt act beyond mere preparation in furtherance of the crime.” Hardy v. State, 301 Md. 124, 128, 482 A.2d 474 (1984); Spencer, 450 Md. at 567, 149 A.3d 610. An attempt requires an actus reus of whether the defendant took "a 'substantial step’ as the criterion in determining whether an overt act is more than mere preparation to commit a crime.” Young, 303 Md. 298, 311, 493 A.2d 352 (1985). In his briefs, David notes that he also believes that the lighting of the matches was not an adequate "substantial step” towards the completion of an arson, but focuses his attention on the State's failure to prove the required mens rea. We do the same.

      . CL § 3-201(d) defines serious physical injury as:
      (d) “Serious physical injury” means physical injury that:
      (1) creates a substantial risk of death; or
      (2) causes permanent or protracted serious:
      (i) disfigurement;
      (ii) loss of the function of any bodily member or organ; or
      (iii) impairment of the function of any bodily member or organ.

      . For a conviction of recldess endangerment, the risk must be to "another” and risk to property will not suffice. CL § 3-204(a).

      . CL § 3-803. Harassment.
      (a) Prohibited.—A person may not follow another in or about a public place or maliciously engage in a course of conduct that alarms or seriously annoys the other:
      (1) with the intent to harass, alarm, or annoy the other;
      (2) after receiving a reasonable warning or request to stop by or on behalf of the other; and
      (3) without a legal purpose.
      (b) Exception.—This section does not apply to a peaceable activity intended to express a political view or provide information to others.
      (c) Penalty.—A person who violates this section is guilty of a misdemeanor and on conviction is subject to:

        (1) for a first offense, imprisonment not exceeding 90 days or a fine not exceeding $500 or both; and
      (2) for a second or subsequent offense, imprisonment not exceeding 180 days or a fine not exceeding $1,000 or both.


source: Caselaw Access Project

author: Nazarian, J.

license: Public Domain

text:
    170 A.3d 829
    Ibrahim BROWN v. STATE of Maryland
    No. 1900,
    Sept. Term, 2016
    Court of Special Appeals of Maryland.
    September 27, 2017

      Argued by: Christopher T. Zirpoli (Kevin B. Collins of Washington, D.C. and Paul B. DeWolfe, Public Defender of Baltimore, MD) all on the brief, for Appellant

      Argued by: Robert Taylor, Jr. (Brian E. Frosh, Attorney General on the brief) all of Baltimore, MD, for Appellee
    Panel: Nazarian, Friedman, Glenn T. Harrell, Jr. (Senior Judge, Specially Assigned), JJ.
   Nazarian, J.

While breaking into a house in Silver Spring, Ibrahim Brown injured his hand and left a smudge of blood on the inside of a basement window. The police investigating the case sent a sample of the blood for comparison against the FBI’s DNA database. Mr. Brown’s blood sample matched two records of Mr. Brown’s DNA from samples collected in Washington, D.C. The D.C. samples were collected legally under District law, but their collection would not have complied with the Maryland DNA Collection Act (the “Act”) if collected here.

Mr. Brown was tried in a bench trial in the Circuit Court for Montgomery County and convicted of first-degree burglary and theft. He argues on appeal that DNA samples that would be illegal if collected in Maryland should be excluded under the Act, even if they were collected legally in another jurisdiction. He contends as well that the evidence was insufficient to support his convictions. We disagree with both sets of arguments and affirm.

I. BACKGROUND

Chris Holleyman returned to his home in Silver Spring on August 16, 2014 to discover that his home had been burgled. He noticed that his basement window had been opened and that there was a smudge of blood on the inside of the window. He testified at trial that approximately $12,000 of belongings had been stolen, including a bicycle he kept in the basement. He testified as well that the deadbolt on the exterior door of the basement, which he always left in the locked position, was unlocked when he returned home that evening.

Two police officers came to the house in response to Mr. Holleyman’s 911 call. They took a sample of the blood smudged on the inside of the opened basement window. They cross-checked the sample against the FBI’s DNA database, known as “CODIS” (the Combined DNA Index System). CO-DIS came back with two matches, both of which pointed to Mr. Brown. Both of the CODIS samples the window smudge matched had been collected in the District of Columbia: one for a prior conviction for misdemeanor sexual assault, the other from a separate investigation of first-degree sexual assault for which no charges were filed. Based on the match between the window smudge and the CODIS hits, the State obtained a warrant to take a buccal swab from Mr. Brown. The DNA from the swab matched the blood smudged on the window.

On October 22, 2015, the State indicted Mr. Brown on charges of first-degree burglary and theft between $1,000 and $10,000. On April 20, 2016, Mr. Brown filed a motion in limine to exclude all DNA evidence at trial. On May 13, 2016, the circuit court heard Mr. Brown’s motion. He argued that because neither of the biologic samples underlying the CODIS DNA matches would have been eligible for collection and use under the Act had the alleged crimes occurred in Maryland, they could not form probable cause to take the buccal swab. The circuit court denied Mr. Brown’s motion on May 19, 2016.

The circuit court conducted a bench trial on May 31 and June 1, 2016. Mr. Brown testified on his own behalf that he went to the Silver Spring house with an acquaintance after agreeing to “check [the house] out” in exchange for marijuana. He testified that he opened the basement window, got his fingers caught between the inside and outside windows (which caused him to bleed onto the window), but managed to pry his hand free and close the window. He denied entering the house or stealing property. He claimed to have implored his partner to leave with him instead of entering the house, and then left.

The circuit court announced its findings and verdict from the bench on June 9, 2016. The court found the prosecution’s witnesses (the two officers who responded to Holleyman’s initial call, one of whom had specialized forensic training) a police fingerprint examiner, the detective assigned to the case, and two analysts from the DNA lab that analyzed Mr. Brown’s DNA swabs) to be “very credible” and Mr. Brown to be “substantially less credible.” The court stated that it did not believe Mr. Brown’s testimony that he did not enter the home and was only there to “check out” the home. The court also found that Mr. Brown had entered the house with an intent to steal:

[T]he defendant was inside the home in part at least for the upper part of his body to the point where he could have grabbed the ... wall inside. I am persuaded beyond a reasonable doubt that by having made the arrangement that he did with [his accomplice], by having looked inside the home, by having seen a bicycle and because of all of the evidence generally that h[is] inten[t], was in fact to ste[a]l.

The trial court’s findings included two comments about Mr. Brown seeing a bicycle in the house from outside of the breached window, and one comment about Mr. Brown testifying about seeing the bicycle from outside of the house. But although Mr. Brown did say at one point that he “took a couple of looks [into the window] to see if anybody was in there and it was real dark,” at no point during the trial did he actually testify to having seen a bicycle.

Before announcing the verdict, the court expressed doubt that Mr. Brown was the person who actually removed the stolen items from the house. But the court explained that even if he didn’t physically remove the items from the house, he still was liable as an accomplice:

[T]he defense claimed that the defendant closed the window. ...
We went back and listened very carefully to the testimony. That was not the case from what I could tell. My understanding is what happened outside on the street is what I’ve already said. That [Mr. Brown] told [his accomplice] that the window was open.
... I don’t think the defendant did enough to eliminate himself from the criminal venture to have avoided accomplice liability.
... And so, for that reason that will be, that will be my finding.

The circuit court found Mr. Brown guilty of first-degree burglary and theft. Mr. Brown filed a timely appeal. We include additional details in the discussion as necessary.

II. DISCUSSION

Mr. Brown raises two groups of arguments on appeal. First, he claims that the circuit court erred by denying his motion to exclude DNA evidence. He reprises the argument he made in the circuit court, ie., that because the D.C. DNA samples on CODIS would not have been collectible under the Act, they could not form the basis of probable cause for the warrant compelling his matching sample in this case. Second, Mr. Brown argues that the circuit court erred by grounding his conviction on the erroneous findings that he saw a bicycle in the house and that he did not close the basement window. Without those findings, he contends, the evidence against him was insufficient to support his convictions.

The circuit court denied Mr. Brown’s motion in limine to exclude the DNA evidence based on its interpretation of the Act. Where “both parties have presented legal arguments based on their interpretation of statutory and case law[,] [w]e consider those arguments de novo; in other words, we review the questions as a matter of law.” Dickerson v. Longoria, 414 Md. 419, 433, 995 A.2d 721 (2010) (citation omitted). When reviewing a non-jury trial for the sufficiency of the evidence,

the judgment of the [cjircuit [cjourt will not be set aside on the evidence unless clearly erroneous and due regard will be given to the opportunity of the lower court to judge the credibility of the witnesses. ... [T]he findings of fact of the trial judge must be accepted unless there was no legally sufficient evidence or proper inferences therefrom, from which the court could find the accused guilty beyond a reasonable doubt.

Dixon v. State, 302 Md. 447, 450-51, 488 A.2d 962 (1985) (internal citations omitted). When reviewing bench trials, we review findings of fact under the “clearly erroneous” standard, meaning that “[a] finding of a trial court is not clearly erroneous if there is competent or material evidence in the record to support the court’s conclusion.” Lemley v. Lemley, 109 Md.App. 620, 628, 675 A.2d 596 (1996).

A. The Maryland DNA Collection Act Did Not Preclude Legally Collected DNA Samples From Serving As Probable Cause.

Mr. Brown argues first that the circuit court erred by failing to suppress the DNA evidence that ultimately was admitted at trial. He contends that the Act prohibits admission of DNA evidence when the samples giving rise to probable cause for the matching sample could not have been collected legally in Maryland, even if they were collected legally under the laws of that jurisdiction. This is a question of first impression. We disagree with Mr. Brown that the statute operates as he contends.

Mr. Brown is right that neither of the samples giving rise to the CODIS hits linking him to the window smudge could have been collected and submitted to CODIS had the crime or alleged activities been committed in Maryland. Section 2-504(a)(2) of the Public Safety Article (“PS”) of the Maryland Code (2003, 2011 Repl. VoL, 2016 Supp.) authorizes law enforcement to collect DNA samples from people convicted of felonies, burglary in the fourth degree, and breaking and entering a motor vehicle. Section 2-504(a)(3)(i) permits collection from people charged with certain crimes, including burglary and attempted burglary:

In accordance with regulations adopted under this subtitle, a DNA sample shall be collected from an individual who is charged with:
1. a crime of violence[] or an attempt to commit a crime of violence; or
2. burglary or an attempt to commit burglary.

Mr. Brown’s D.C. misdemeanor sexual assault conviction does not fall into either of these categories. Nor does the sample underlying the other CODIS hit, which was taken in connection with a separate investigation for first-degree sexual assault that never led to charges. Everyone agrees, though, that both samples were collected and submitted to CODIS in compliance with District of Columbia law, and Mr. Brown does not challenge the constitutionality of the D.C. DNA law.

Mr. Brown argues, in essence, that DNA profiles on CODIS must be collected in a manner consistent with the Act to qualify as probable cause to compel a new sample in Maryland. If not, he says, the match should be excluded, even if the samples were collected legally elsewhere and submitted properly to CODIS. Neither the text nor the legislative history of the Act compels this result.

1. The plain language and statutory scheme of the Act do not preclude reliance on CODIS hits from legal out-of-state samples.

The Act is silent on the treatment of out-of-state samples, so Mr. Brown analogizes to the Maryland Electronic Surveillance Act (“MESA”), Md. Code (1974, 2018 Repl. Vol.) §§ 10-401 to 10-414 of the Courts & Judicial Proceedings Article (“CJ”), which precludes Maryland courts from admitting most wiretapped communications that violate the Maryland statute, even if they were obtained legally elsewhere. In Mustafa v. State, the case on which Mr, Brown relies most heavily, the tape recording at issue was obtained lawfully under District of Columbia law, but “would not have been lawful had it been made [under MESA].” 323 Md. 65, 71-72, 591 A.2d 481 (1991). Ultimately, the Court of Appeals held that the statute’s exclusionary provision barred admission of the tape recordings in Maryland courts because they did not satisfy the two-party consent rule contained in MESA and that governs recordings in Maryland. Id. at 75-76, 591 A.2d 481. The Court reasoned that “the provisions of [MESA] constitute a declaration of the public policy of this State,” and that although “Maryland may not ordinarily proscribe conduct occurring outside its boundaries,” it “[q]uite plainly ... may regulate the admissibility of evidence in its courts.” Id. at 74-75, 591 A.2d 481.

This analogy doesn’t hold here, though, for two reasons. First, the language and structure of MESA and the Act reveal differences in legislative intent. Unlike the Act, MESA specifically ties the admissibility of recordings to compliance with Maryland law:

Any investigative or law enforcement officer ... who has lawfully received any information concerning a wire, oral or electronic communication or evidence lawfully derived therefrom, which would have been lawful for a law enforcement officer of this State ... to receive, may disclose the contents of that communication or the derivative evidence while giving testimony ....

CJ § 10—407(f) (emphasis added). The Court of Appeals has described MESA’s exclusionary rule as “all-encompassing.” Mustafa, 323 Md. at 73-74, 591 A.2d 481 (“There is no indication that the legislature intended to adopt anything but the ‘all-encompassing exclusionary rule which it unequivocally fashioned in [CJ] § 10-405.’ ” (quoting Wood v. State, 290 Md. 579, 584, 431 A.2d 93 (1981))). And MESA “precludes the admission of a communication intercepted, no matter where, under circumstances inconsistent with this State’s substantive law.” Id. at 75, 591 A.2d 481.

In contrast, the Act says nothing about the admissibility in Maryland courts of evidence legally collected extraterritorially. The Act’s expungement provision is tailored narrowly and requires the destruction or expungement of DNA samples or records in only three specific instances: when a criminal action against the individual sampled does not result in a conviction, when a conviction is vacated or reversed, or when the individual has been pardoned. PS § 2-511(a). Indeed, the language of the expungement provision, which addresses “DNA samples and records generated as part of a criminal investigation,” is limited only to samples and records generated in Maryland. PS § 2-511. And because samples and records can only qualify for expungement “from the State DNA data base,” and extraterritorially-collected samples are never entered into Maryland’s database, there is no statutory basis to prevent CODIS hits from establishing probable cause. PS § 2-511(a).

Second, Mr. Brown’s gloss on the Act would create serious practical problems. See CashCall, Inc. v. Md. Comm’r of Fin. Regulation, 448 Md. 412, 431, 139 A.3d 990 (2016) (“In every case, the statute must be given a reasonable interpretation, not one that is absurd, illogical or incompatible with common sense.” (quoting Gardner v. State, 420 Md. 1, 8-9, 20 A.3d 801 (2011))). When determining whether a recording, regardless of its geographic origin, complies with MESA, a court in pre-trial hearing need only inquire about the factual circumstances of the recording—who made the recording and whether the parties consented to being recorded. But CODIS reveals little to no information about the source of the sample or the circumstances under which it was taken. Reading the Act as Mr. Brown suggests would require law enforcement and the courts to determine independently, among other things, what crimes or charges underlay each sample and how that state’s criminal code maps onto ours—whether, for example, their felonies would be felonies under Maryland law, whether a particular burglary elsewhere would qualify as a fourth-degree burglary in Maryland, or whether their crimes of violence are the same as ours. See PS § 2—504(a)(2)—(3) (listing crimes that qualify charges or convictions for DNA collection). Such an interpretation as urged by Mr. Brown would impair significantly the utility of CODIS and impose additional burdens on law enforcement in Maryland.

2. The Act’s legislative history confirms our reading.

Although we could affirm the circuit court’s ruling on our plain language reading of the statute alone, we may still consult legislative history and surrounding circumstances “as a confirmatory process,” State v. Rice, 447 Md. 594, 623, 136 A.3d 720 (2016) (internal quotation marks and citation omitted). The legislative history of the Act confirms our conclusions. The Act was passed on the heels of the federal DNA Identification Act of 1994, Pub. L. No. 103-322, which formalized the FBI’s authority to establish CODIS and invited states to participate. See State Police-Statewide DNA Database System and Repository: Hearing on S.B. 298 & H.B. 410 Before the S. Judicial Proceedings Comm, and the H. Judiciary Comm., 1994 Leg., 408th Sess. (Md. 1994) [hereinafter Legislative Hearing Statement] (statement of W. Kevin Hughes, Governor’s Legislative Office, and Col. Larry Tolliver, Superintendent, Md. State Police). The legislative history reveals the Act as having two related, but clearly separate, purposes. First, the Act was designed to establish a state-wide DNA database and to formalize the process through which DNA evidence would be collected and entered into it. The original House and Senate bills established the initial set of crimes that would qualify a suspect or convict for DNA collection, the people permitted to collect DNA evidence, the technical standards that each of the labs must meet, the circumstances under which the DNA evidence should be used, when DNA evidence should be expunged or destroyed, and the funding that would be necessary to ensure high-volume operation. See, e.g., S. Judicial Proceedings Comm., Bill Analysis, H.B. 410, 408th Sess. (Md. 1994) [hereinafter Bill Analysis].

Second, and always discussed separately from the first, the Act was designed to ensure that Maryland’s collected DNA evidence and DNA laboratories would meet the federal, technical requirements for participation in CODIS. CODIS is mentioned in the legislative history only for this purpose and in short, check-the-federally-required-box style sentences. The Fiscal Note for HB 410 states that the bill requires the state police to “report DNA data to [CODIS,] operated by the Federal Bureau of Investigation.” Dep’t of Fiscal Servs., Fiscal Note, H.B. 410, 408th Sess., at 2 (Md. 1994). The Senate’s analysis of the House Bill states that the contents of the DNA database will be “made available to ... agencies participating in the FBI’s CODIS system.” Bill Analysis, at 1. The testimony about the bill before the Senate Judicial Proceedings Committee and the House Judiciary Committee on behalf of the Office of the Governor by the Superintendent of the Maryland State Police and a member of the Governor’s Legislative Office reiterated that “[t]he legislation ensures that Maryland will comply with and participate in the federal CODIS network.” Legislative Hearing Statement, at 2.

The legislative history confirms, therefore, the purposes we see in the language and structure of the Act: the creation of a state DNA database, with procedures for DNA evidence collection in Maryland, and Maryland’s participation in CODIS. Nothing in the Act’s language or structure indicates that the Act was intended to regulate the admission of extraterritorially-eollected DNA evidence, and the legislative history demonstrates that it wasn’t on the General Assembly’s mind at the time either. We affirm the circuit court’s denial of Mr. Brown’s motion in limine to exclude DNA evidence.

B. The Circuit Court Did Not Err When It Inferred That Mr. Brown Saw A Bicycle From Outside Of The House, Nor Did It Err When It Declined To Give Credence To Mr. Brown’s Testimony.

Mr. Brown contends second that the circuit court erred when it relied on testimony he never gave about seeing a bicycle inside the house to convict him, and that it erred when it declined to give weight to his exculpatory testimony. We disagree.

1. The circuit court did not commit clear error when it inferred that Mr. Brown saw the bicycle.

Mr. Brown argues that in finding that he had the intent to steal, the court relied on the misimpression that he had testified about seeing a bicycle, and that without that “finding,” the state failed to prove the intent element of the theft and burglary charges. He points to three comments the circuit court judge made in explaining why it found him guilty. First, the circuit court stated that Mr. Brown “testified that he looked inside the basement through this window and saw a bicycle.” Second, the court stated that it was “persuaded beyond a reasonable doubt that by having made the arrangement that he did with [his acquaintance], by having looked inside the home, by having seen a bicycle and because of all of the evidence generally that h[is] inten[t], was in fact to ste[a]l.” A short while later, the court elaborated in a third comment that “I think his real intent and I infer from the fact that he looked at the bicycle [and] was there in the middle of the night, I think his real intent was to steal,”

It’s true that Mr. Brown never said, in those words, that he saw a bicycle. But the court actually said that Mr. Brown testified to seeing the bicycle once—the other two times, the court inferred that Mr. Brown had seen it. Inferred findings based on circumstantial evidence are subject to the same “clearly erroneous” standard of review as any other factual finding. “A finding of a trial court is not clearly erroneous if there is competent or material evidence in the record to support the court’s conclusion.” Lemley, 109 Md.App. at 628, 675 A.2d 596. And here, the circuit court’s inference that Mr. Brown saw the bicycle is supported sufficiently.

There were two bicycles in the basement, both visible from the window Mr. Brown forced open. Mr, Brown testified to having spent time examining the windows to determine if they could be used for entry into the house. He testified that while he was examining the basement windows, he “took a couple of looks to see if anybody was in there and it was real dark.” Mr. Holleyman, the homeowner, testified that there were two bicycles in the only room in the basement, and unlike other items in the basement, he did not testify that they were tucked away in some kind of less visible fashion. From this collection of testimony, the court could have drawn a rational connection between Mr. Brown’s admitted looks in the window and the taken bicycle that was in plain sight. We see no clear error in that inference.

2. The circuit court was free to disbelieve Mr. Brown’s testimony that he closed the window before committing the burglary.

Mr. Brown argues that the circuit court erred as well by “failing to recognize and consider [his] testimony that he closed shut the window to the [residence,” and that if it had considered his testimony properly, it would have found that he repudiated the crime and could not be guilty as an accomplice. Again, we discern no error.

A finder of fact is “free to believe part of a witness’ testimony, disbelieve other parts of a witness’ testimony, or to completely discount a witness’ testimony.” Smiley v. State, 138 Md.App. 709, 719, 773 A.2d 606 (2001) (citation omitted). In this case, the judge found that Mr. Brown lacked credibility, and didn’t believe Mr. Brown’s story that he was at the house only to “check it out” and not to commit the theft. After hearing all of the evidence and taking eight days to deliberate, the court found that “the defendant was inside the home in part at least for the upper part of his body to the point where he could have grabbed the ... wall inside.” And contrary to Mr. Brown’s contention, the court did not imply that Mr. Brown left the window open—it implied only that Mr. Brown didn’t open the window, immediately close it afterwards, change his mind about committing burglary, and thus repudiate the act.

There was more than enough evidence for a rational person to believe beyond a reasonable doubt that Mr. Brown committed burglary and theft. The court did not err in finding him guilty.

JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY AFFIRMED. APPELLANT TO PAY COSTS.

      . Mr. Brown phrased the Questions Presented in his brief as follows:
      1. Did the circuit court err in denying Mr, Brown's motion in limine to exclude DNA evidence where probable cause to collect the evidence was based on DNA profiles from the District of Columbia that could not have been lawfully collected or uploaded to a DNA database by the State of Maryland?
      2. Did the circuit court err in convicting Mr. Brown of first degree burglary and theft after the circuit court made erroneous factual findings regarding Mr. Brown’s testimony, incorrectly finding that (a) he testified he looked at a "bicycle” inside the victim’s house and (b) he did not testify he closed the window to the house?

      . There is one nuance: Mr. Brown is correct if we assume that the underlying facts of his misdemeanor sexual assault conviction in Washington D.C. would have resulted in a misdemeanor, not a felony, conviction in Maryland.

      . PS § 2-501(e) defines "crime of violence” to have the meaning stated in § 14-101 of the Criminal Law Article.


author: Zarnoch, J.

text:
    170 A.3d 837
    Danyelle WALKER v. STATE of Maryland
    No. 2139,
    Sept. Term, 2016
    Court of Special Appeals of Maryland.
    September 27, 2017

      Argued by: Juan P. Reyes (Paul B. DeWolfe, Public Defender on the brief) all of Baltimore, MD, for Appellant.
    Argued by: Virginia S. Hovermill (Brian E. Frosh, Attorney General on the brief) all of Baltimore, MD, for Appellee.
    Panel: Deborah S. Eyler, Wright, Robert A. Zarnoch (Senior Judge, Specially Assigned), JJ.
   Zarnoch, J.

Danyelle Walker, appellant, was charged with two counts of criminal contempt and four counts of failure to pay child support. Following a jury trial in the Circuit Court for Frederick County, appellant was found guilty of all charges. The court sentenced appellant to three years of imprisonment, with all but twelve months suspended. Appellant appealed, and now presents two questions for our review:

1. Was the evidence legally insufficient to sustain the convictions for criminal contempt and failure to provide child support?
2. Did the circuit court err in ordering separate sentences for criminal contempt and failure to provide child support?

For the following reasons, we conclude that there was sufficient evidence of willful nonpayment to sustain the convictions for criminal contempt and failure to provide child support, and that the court did not err by ordering separate sentences. Accordingly, we affirm the judgments of the circuit court.

BACKGROUND

Appellant was charged with two counts of criminal contempt and four counts of failure to provide child support in violation of Md. Code (1984, 2012 Repl. Vol.), Family Law Article (“FL”), § 10-208. Count One charged him with constructive criminal contempt from March 2013 through March 2015. Count Two charged him with constructive criminal contempt since April 2015. Counts Three through Six charged him with failure to provide child support for each of his four minor children. On December 7, 2016, a jury trial was held in the Circuit Court for Frederick County. The following testimony was elicited at trial.

Paula Coleman testified as one of the State’s witnesses. Coleman is a teacher in Frederick County and has four daughters with appellant. At the time of the trial, all four daughters were minors. Coleman testified that appellant did not work regularly between 1996 and 2006. According to Coleman, appellant lived with his mother. On August 4, 2006, appellant entered into a consent order to pay $500 per month in child support for the four children. From 2006 through 2015, Coleman stated that she spoke to appellant about three times a year. Coleman testified that she did not receive any child support payments directly from appellant between April 2013 and October 2015. During that period, she would occasionally talk to appellant and ask for support, but never received it, despite appellant making promises to provide support. In 2015, the child support order was increased to $700 per month. At the time that the order was changed, appellant’s salary was listed as $17.33 per hour. Coleman did not know if appellant was actually working at that time.

The jury also heard testimony from Edward Buell, a Department of Social Services (“DSS”) employee who handled the case. Buell described the various measures taken by DSS when a parent fails to make their required child support payments. DSS attempts to make contact with the parent, then sends a demand letter, then initiates bank garnishment, and then directs suspension of the parent’s driver’s license. Buell explained that the State also files for civil contempt prior to charging the non-paying parent with criminal contempt. Buell testified that these efforts were taken in this case with appellant, but that he still repeatedly failed to pay child support from May 2013 through October 2015. Buell further testified that for at least seven of those months, appellant earned income but made no child support payments. On cross-examination, Buell testified about various payments and nonpayments made by appellant during the relevant time frame. In the first quarter of 2014, appellant made $172 and paid $670 in child support. In the second quarter of 2014, appellant made $2,991 and paid no child support. In the third quarter of 2014, appellant made $4,588 and paid $730.77 in child support. In the fourth quarter of 2014, appellant made $1,434 and paid $1,477 in child support. In the first quarter of 2015, appellant made $2,347 and paid $1,611 in child support. Buell admitted that appellant never indicated to him that he did not intend to pay the child support.

Appellant also testified in his defense. He told the jury that he has lived with his mother his entire life. From 2014 through 2015, appellant worked for Ruppert Landscaping for about a year and a half. He testified that child support was taken out of his check when he worked for Ruppert Landscaping. Appellant also did construction work for Eagle Contracting for a period of time. When he worked for Eagle Contracting, he paid child support on his own, because he did not make enough money to have his wages garnished. He claimed that he always looked for work during the 32-month period that the State claimed he had ignored the child support order. He stated that he looked for a job about two or three times a month. Appellant received unemployment when he was not working, and claimed that some of that money went to child support. Appellant admitted that he paid no child support from May through October 2013 and from June through October 2015. He told the court that he was not working during those periods. Appellant testified that he did not intentionally fail to pay child support. At the time of the trial, appellant was over $68,000 in arrears.

At the conclusion of the trial, appellant was convicted of two counts of criminal contempt and four counts of failure to provide child support. The court sentenced appellant to three years of imprisonment, with all but twelve months suspended for each count. The sentences were to run concurrent to each other. This appeal followed.

DISCUSSION

I. Sufficiency of the Evidence

An appellate court “reviews a question regarding the sufficiency of the evidence in a jury trial by asking 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.” Grimm v. State, 447 Md. 482, 494-95, 135 A.3d 844 (2016) (Citation and internal quotation marks omitted). “We conduct such a review, however, keeping in mind our role of reviewing not only the evidence in a light most favorable to the State, but also all reasonable inferences deducible from the evidence in a light most favorable to the State.” Smith v. State, 415 Md. 174, 185-86, 999 A.2d 986 (2010). “We give ‘due regard to the fact finder’s findings of facts, its resolution of conflicting evidence, and, significantly, its opportunity to observe and assess the credibility of witnesses.’ ” State v. Suddith, 379 Md. 425, 430, 842 A.2d 716 (2004) (quoting Moye v. State, 369 Md. 2, 12, 796 A.2d 821 (2002)).

Criminal contempt has been defined by the Court of Appeals as follows:

Criminal contempts may be direct or constructive. A “direct” criminal contempt has been defined as conduct which occurs in the presence of the court or so near the court that it interferes with the proper function and authority of the court. An “indirect” or “constructive” criminal contempt is any contempt other than a direct contempt. Whether direct or constructive, only that conduct that is willful or intentional may constitute a criminal contempt.

Ashford v. State, 358 Md. 552, 563, 750 A.2d 35 (2000) (Citations omitted).

The Court remarked in Dodson v. Dodson, 380 Md. 438, 452, 845 A.2d 1194 (2004), that “constructive criminal contempt [ ] is the appropriate means to punish a past willful violation of a court order.” Appellant was convicted of two counts of constructive criminal contempt. “[I]n order to convict an accused of constructive criminal contempt, [the State] has the burden of proving, beyond a reasonable doubt, ‘a deliberate effort or a willful act of commission or omission by the alleged contemnor committed with the knowledge that it would frustrate the order of the court.’” Dorsey v. State, 356 Md. 324, 352, 739 A.2d 41 (1999) (quoting In re Ann M., 309 Md. 564, 569, 525 A.2d 1054 (1987)). “These mens rea elements must be established by evidence, and cannot simply be ‘assumed.’ Nevertheless, like scienter generally in criminal cases, they ‘may be proven by circumstantial evidence and by inferences drawn therefrom.’” Id. at 352, 739 A.2d 41 (quoting Dawkins v. State, 313 Md. 638, 547 A.2d 1041 (1988)).

Appellant contends that the evidence was insufficient because the State failed to show that he willfully or deliberately failed to comply with the child support orders. Appellant argues that all the State showed was that appellant failed to make all monthly child support payments during the periods in question. The State counters that it gave the jury ample evidence to infer willfulness on appellant’s part to sustain the convictions.

Both appellant and the State rely primarily on the cases of Dorsey and Ashford. In both cases, the appellate court held that the evidence was insufficient for a criminal contempt conviction. Appellant argues that this case is analogous to both of those cases, thus, requiring a reversal of his conviction. The State contends that the instant case is distinguishable because the State did provide evidence of willfulness on appellant’s part.

Dorsey involved consolidated cases of two defendants, Dorsey and Craft, who had been convicted of criminal contempt because of their failure to pay child support. 356 Md. at 354, 739 A.2d 41. In Dorsey’s case, he was convicted “based on the lack of support payments for [a] ten-month period, the lack of employment information in the agency’s records, and the fact that the agency’s records reflected an incorrect address for Dorsey.” Id. The Court of Appeals held that those facts were “entirely insufficient to support an inference that Dorsey’s failure to make support payments during the period was willful and done with a contumacious intent.” Id. The Court highlighted the lack of evidence of Dorsey’s ability to pay, stating that “[t]he only evidence relating to the period was Dorsey’s testimony that he worked ‘a couple of weeks at Wendy’s,’ that the pay was ‘not that much,’ and that, during the remainder of the period ... he was either incarcerated or, when not incarcerated, he was unable to find work and ‘basically’ did ‘nothing.’” Id. at 354-55, 739 A.2d 41. On the issue of a defendant’s ability to comply, the Court provided that:

[Ejvidence of an ability to comply, or evidence of a defendant’s conduct purposefully rendering himself unable to comply, may, depending on the circumstances, give rise to a legitimate inference that the defendant acted with the requisite willfulness and knowledge. By contrast, evidence of an inability to comply during the relevant period may, again depending upon the circumstances, support an inference that the defendant lacked a contumacious intent.

Id. at 352, 739 A.2d 41. In Craft’s case, the circuit court noted that the defendant did not have the ability to pay, but found him guilty on the theory that he could have obtained a better job at a fast food restaurant. Id. at 355, 739 A.2d 41. However, as the Court of Appeals noted, “[t]here was no ‘evidence’ relating to the employment opportunities at the fast food places, Craft’s qualifications for a job at these establishments, the wages available at such places, the distance between Craft’s residence and the fast food places, or the availability of public transportation.” Id. Accordingly, the Court held that this evidence was insufficient “to support an inference that Craft’s failure to comply was accompanied by a contumacious intent.” Id.

In Ashford, the State failed to offer sufficient evidence to support a conviction for failure to pay child support because the evidence only showed a lack of compliance. 358 Md. at 574, 750 A.2d 35. The Court held that:

[T]he State’s evidence showed neither that the appellant had sufficient money to pay the child support order nor that he had the ability to earn sufficient money and willfully failed to work and pay. In fact, the State’s sole witness testified that she was not aware of the appellant’s financial or personal situation since July 21, 1997, the time that the appellant made his last child support payment. Thus, in limiting its proof to lack of compliance with the order, the State has failed to offer sufficient evidence to prove the crime of constructive criminal contempt beyond a reasonable doubt.

Id.

Appellant contends that like the defendants in these cases, he was convicted only on evidence of non-compliance. Like Craft, appellant argues that the State did not present evidence on his qualifications for available jobs. Appellant points out that he testified at trial that he was always looking for work. Appellant asserts that “the State’s evidence showed neither that appellant had sufficient money to meet his obligations nor that he had the ability to earn sufficient money and that he willfully failed to work and pay.”

The State contends that there was enough evidence of willfulness and points to four features of this case for support: 1) appellant earned income from a landscaping company during some months where he did not pay child support; 2) appellant made only lukewarm efforts to find a job; 3) Coleman testified that appellant made repeated promises to pay over the phone but failed to do so; and 4) Buell’s testimony that DSS made increasingly vigorous efforts to collect child support. We agree that the evidence presented in the instant case was sufficient to distinguish it from Dorsey and Ashford.

Although establishing an affirmative intent to not do something is a difficult task, there was enough evidence for the jury to infer willfulness on appellant’s part. As the State points out, appellant signed two consent orders acknowledging the existence and magnitude of his obligation. Nevertheless, despite being fully aware of his obligation, he repeatedly failed to make the required payments and allowed the amount he owed to increase up to $68,000. Furthermore, unlike the cases discussed above, there was evidence regarding appellant’s financials during some of the relevant periods. Testimony at trial established that appellant worked for a landscaping company and earned income during at least seven of the months that he did not pay child support. In contrast with Dorsey and Ashford, we know that appellant was earning income at certain points and still not paying child support. Meanwhile, appellant was living with his mother and paying her rent. During periods of unemployment, appellant claimed that he was always looking for work, but when questioned about it he said he looked for jobs only two or three times a month. Looking for a job only two or three times a month is not equivalent to always looking for work. For someone who owes such a substantial amount in child support, that is not an adequate effort at obtaining employment. Moreover, Coleman’s testimony about her communications with appellant also show a pattern of deliberate non-payment. Coleman testified that she would tell appellant over the phone that he needed to make his child support payments, and that he also promised her that he would. Nevertheless, he repeatedly failed to honor these promises to pay. As the State argues, appellant’s “regular awareness that he was supposed to do so, his guarantees that he would do so, and his consistent and repeated failure to do so, permitted an inference that he knowingly and intentionally did not do so.” Taken all together, appellant’s knowledge of his obligations, promises to pay, employment history, and repeated failure to pay supports the jury’s conclusion that appellant willfully failed to pay his required child support.

II. Merger

The trial court sentenced appellant to three yeai's of incarceration with all but twelve months suspended on Count One for criminal contempt. Appellant received the same sentence for his second criminal contempt conviction and for all four of his failure to provide child support convictions. Appellant’s sentences on Counts Two through Six were to run concurrently with his sentence for Count One. At no time during appellant’s sentencing did counsel object to the sentence or request a merger.

On appeal, appellant argues that his convictions for failure to provide child support should have merged with each other as well as with his convictions for criminal contempt. Merger of sentences can be done under the required evidence test, the rule of lenity, or principles of fundamental fairness. Potts v. State, 231 Md.App. 398, 413, 151 A.3d 59 (2016). Appellant contends that his sentences should have been merged under either the rule of lenity or the principles of fundamental fairness.

The rule of lenity is as follows:

Two crimes created by legislative enactment may not be punished separately if the legislature intended the offenses to be punished by one sentence. It is when we are uncertain whether the legislature intended one or more than one sentence that we make use of an aid to statutory interpretation known as the “rule of lenity.” Under that rule, if we are unsure of the legislative intent in punishing offenses as a single merged crime or as distinct offenses, we, in effect, give the defendant the benefit of the doubt and hold that the crimes do merge.

Monoker v. State, 321 Md. 214, 222, 582 A.2d 525 (1990). “The rule of lenity is neither absolute nor exclusive, nor are there any fixed criteria for applying it. One fact is, however, undeniably clear. The rule of lenity, formulated as an aid to statutory construction, applies to statutory offenses.” Id. at 223, 582 A.2d 525.

Criminal contempt is a common law offense; however, failure to provide child support is a statutory offense under FL § 10-203. “[T]he rule of lenity applies ... where one offense is statutory and the other is a derivative of common law.” Khalifa v. State, 382 Md. 400, 434, 855 A.2d 1175 (2004). Appellant contends that under the plain language of the statute, “nothing indicates that the General Assembly intended to authorize separate sentences for criminal contempt and failing to provide child support, where both are based on the same act or acts.” However, as the State points out, the two crimes serve different purposes. The purpose of the child support statute is “to assist spouses and children in directly procuring support and thereby preventing them from becoming public burdens, to punish the offense of failing to provide support, and, by the fear of punishment, to prevent the commission of such an offense.” State v. Berry, 287 Md. 491, 497, 413 A.2d 557 (1980). Criminal contempt is a common law offense “inherent in all courts as a principal tool to protect the orderly administration of justice and the dignity of that branch of government that adjudicates the rights and interests of the people.” Smith v. State, 382 Md. 329, 337, 855 A.2d 339 (2004). Therefore, the court did not err in imposing sentences for both crimes. Accordingly, we decline to merge the convictions under the rule of lenity.

Appellant also argues that his convictions should have merged under principles of fundamental fairness. However, “[a]lthough a defendant may attack an illegal sentence by way of direct appeal, the fundamental fairness test does not enjoy the same procedural dispensation of Md. Rule 4-345(a) that permits correction of an illegal sentence without a contemporaneous objection.” Potts, 231 Md.App. at 414, 151 A.3d 59. Appellant did not make a contemporaneous objection as to the lack of fundamental fairness of his sentences. Accordingly, this issue was not preserved for our review.

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