Jones v. State , 440 Md. 450 ( 2014 )

Kevin E. Jones v. State of Maryland, Case No. 14, September Term, 2014
CRIMINAL LAW – SECOND-DEGREE ASSAULT – INTENT-TO-FRIGHTEN –
Court of Appeals held that defendant can commit second-degree assault of intent-to-
frighten type against victim of whose presence in particular defendant does not know.
Circuit Court for Somerset County
Case No. 19-K-10-009451
Argued: October 6, 2014
IN THE COURT OF APPEALS
OF MARYLAND
No. 14
September Term, 2014
______________________________________
KEVIN E. JONES
v.
STATE OF MARYLAND
______________________________________
Barbera, C.J.
Harrell
Battaglia
Greene
Adkins
McDonald
Watts,
JJ.
______________________________________
Opinion by Watts, J.
______________________________________
Filed: November 19, 2014
We decide whether a defendant can commit second-degree assault of the intent-to-
frighten type against a victim of whose presence in particular the defendant does not
know. We hold that a defendant can do so.
BACKGROUND
The State, Respondent, charged Kevin E. Jones (“Jones”), Petitioner, with various
criminal offenses, including second-degree assault of the intent-to-frighten type against
Christine Johnson (“Johnson”). In the Circuit Court for Somerset County (“the circuit
court”), a jury tried and convicted Jones.
Because Jones contends that the evidence was insufficient to support a conviction,
we summarize the evidence that the State offered at trial.
Byron Johnson (“Byron”) testified as follows. On the night of September 17,
2010, Byron and Jones were passengers in a car. Jones said that “he [had] got[ten] into
an altercation with two boys” at Wink Lane Apartments. Byron heard a gun being
loaded. Out of the corner of his eye, Byron saw Jones holding a gun. Eventually, the car
stopped near Wink Lane Apartments. While Byron remained in the car, Jones exited the
car, walked to an apartment’s front door, and knocked on it. A woman answered the
door. Jones asked: “[W]here the two [n*****]s at[?]” Byron heard “yelling.” The
woman shut the door, and Byron heard three gunshots. Jones returned to the car and said
that “he was going to kill . . . the two boys [whom] he was trying to get.”
Nikita Tindley (“Tindley”), Johnson’s daughter, testified as follows. On the
morning of September 18, 2010,1 Tindley, Johnson, and others were in an apartment at
Wink Lane Apartments. Jones knocked on the apartment’s front door. Tindley opened
the door. Jones asked: “[W]here the [n*****]s at[?]” Jones reached toward his pants.
Tindley shut the door, saw Johnson approaching the door, and said: “[D]on’t go to the
door[,] they got a gun.” Tindley heard three gunshots.
Johnson testified as follows. Tindley shut the door; Johnson approached the door;
and Tindley said: “[D]on’t go to the door[,] they got a gun.” Johnson “hollered” to her
grandson, who was in the living room: “[G]et down[.]” Johnson heard three gunshots,
which frightened her.
Officer Dave Adams of the Princess Anne Police Department testified that he went
to the apartment in which Tindley and Johnson had been and found: a bullet hole in the
front door; a bullet hole above the front door; a bullet in a wall in the living room; and a
bullet in a wall in a rear bedroom.
The jury convicted Jones of crimes, including second-degree assault of the intent-
to-frighten type against Johnson. Jones appealed, and the Court of Special Appeals
affirmed. See Jones v. State, 213 Md. App. 208, 222, 73 A.3d 1136, 1145 (2013). Jones
filed a petition for a writ of certiorari,2 which this Court granted. See Jones v. State, 436
Md. 327, 81 A.3d 457 (2013).
1
A review of the record reveals that Jones entered the car on the night of September
17, 2010, and that the gunshots occurred after midnight on the morning of September 18,
2010.
2
In the petition for a writ of certiorari, Jones raised one issue: “Was the evidence
sufficient to convicted [Jones] of second[-]degree assault of the intent[-]to[-]frighten [type]
where the State failed to prove that [Jones] was aware of the existence of the victim?”
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DISCUSSION
Jones contends that the evidence was insufficient to support the conviction for
second-degree assault of the intent-to-frighten type against Johnson because: (1) the
evidence was insufficient to support a reasonable inference that Jones knew that
Johnson—or anyone other than Tindley, for that matter—was in the apartment; and (2) a
defendant cannot commit second-degree assault of the intent-to-frighten type against a
victim of whose presence in particular the defendant does not know. The State responds
that the evidence was sufficient to support the conviction for second-degree assault of the
intent-to-frighten type against Johnson because: (1) the evidence was sufficient to support
a reasonable inference that Jones knew that multiple people were in the apartment; and
(2) a defendant can commit second-degree assault of the intent-to-frighten type against a
victim of whose presence in particular the defendant does not know, as the State may
prove a defendant’s intent through circumstantial evidence.
Evidence is sufficient to support a conviction where, “after viewing the evidence
in the light most favorable to the [State], any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Hobby v. State, 436 Md.
526, 538, 83 A.3d 794, 800 (2014) (emphasis in original) (citation and internal quotation
marks omitted). In determining whether evidence was sufficient to support a conviction,
an appellate court “defer[s] to any possible reasonable inferences [that] the trier of fact
could have drawn from the . . . evidence[.]” Id. at 538, 83 A.3d at 801 (citation omitted).
Md. Code Ann., Crim. Law (2002, 2012 Repl. Vol.) § 3-203 criminalizes second-
degree assault, of which there are three types: “(1) intent to frighten, (2) attempted
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battery, and (3) battery.” Snyder v. State, 210 Md. App. 370, 382, 63 A.3d 128, 135
(Raker, J.), cert. denied, 432 Md. 470, 69 A.3d 476 (2013). A defendant commits second-
degree assault of the intent-to-frighten type where: (1) “the defendant commit[s] an act
with the intent to place [a victim] in fear of immediate physical harm”; (2) “the defendant
ha[s] the apparent ability, at [the] time, to bring about the physical harm”; and (3) “[t]he
victim [is] aware of the impending” physical harm. Snyder, 210 Md. App. at 382, 63
A.3d at 135 (citation omitted). The State may prove a defendant’s intent through “direct
[evidence] or circumstantial evidence[.]” Bible v. State, 411 Md. 138, 158, 982 A.2d
348, 359 (2009) (plurality op.) (quoting Thornton v. State, 397 Md. 704, 714, 919 A.2d
678, 683 (2007)) (second alteration in original).
In Ford v. State, 330 Md. 682, 708, 689, 625 A.2d 984, 996, 987 (1993), this Court
held that evidence was sufficient to support convictions for assault with the intent to
disable drivers and passengers where a defendant threw rocks at moving vehicles. First,
this Court determined that the evidence was sufficient to support a finding that the
defendant knew that passengers were in the vehicles. See id. at 705, 625 A.2d at 995.
Next, this Court concluded that the evidence was sufficient to “support[] a finding that
[the defendant] inten[ded] to disable any passengers in the vehicle[s,]” as the defendant
“created a zone of extreme peril inside the vehicles.” Id. at 707, 625 A.2d at 996.
Here, we conclude that a defendant can commit second-degree assault of the
intent-to-frighten type against a victim of whose presence in particular the defendant does
not know. A defendant commits second-degree assault of the intent-to-frighten type only
if “the defendant commit[s] an act with the intent to place another in fear of immediate
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physical harm[.]” Snyder, 210 Md. App. at 382, 63 A.3d at 135. Where a defendant
intentionally commits an act that creates a zone of danger, and where the defendant
knows that multiple people are in the zone of danger, the defendant intends to place
everyone in the zone of danger in fear of immediate physical harm—even if the
defendant does not know of a particular victim’s presence in the zone of danger. See
Ford, 330 Md. at 689, 705, 707, 25 A.2d at 987, 995, 996 (Where a defendant threw rocks
at moving vehicles, and where the evidence was sufficient to support a finding that the
defendant knew that passengers were in the vehicles, this Court concluded that the
evidence was sufficient to “support[] a finding that [the defendant] inten[ded] to disable
any passengers in the vehicle[s,]” as the defendant “created a zone of extreme peril inside
the vehicles.”).
We reject Jones’s implicit contention that this Court decided Ford wrongly by
relying on the doctrine that “[i]t is permissible to infer that ‘[a defendant] intends the
natural and probable consequences of [the defendant’s] act.’” Ford, 330 Md. at 704, 625
A.2d at 994 (quoting Davis v. State, 204 Md. 44, 51, 102 A.2d 816, 819-20 (1954)).
Although Jones does not expressly criticize this Court’s logic in Ford, he contends that
the “natural and probable consequences” doctrine should not apply to specific intent
crimes in general. Jones relies on secondary sources whose authors criticize the “natural
and probable consequences” doctrine, under which, supposedly, the State must prove
merely that a defendant’s actions were negligent, not intentional. See, e.g., Wayne R.
LaFave, Criminal Law 270 (5th ed. 2010) (The “natural and probable consequences”
doctrine “destroy[s] the concept of intention and replace[s] it entirely with negligence.”);
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Model Penal Code § 2.06 at 312 n.42 (1985) (“To say that the accomplice is liable if the
offense committed is . . . the ‘probable consequence’ of another crime is to make him [or
her] liable for negligence[.]”).
These concerns are unfounded. This Court has already “disagree[d]” with
LaFave’s and the Model Penal Code’s supposition that the “natural and probable
consequences” doctrine “predicates liability on . . . negligence[.]” Sheppard v. State, 312
Md. 118, 123 n.3, 538 A.2d 773, 775 n.3 (1988). As this Court has clarified, under the
“natural and probable consequences” doctrine, a defendant is not presumed to have
intended the natural and probable consequences of the defendant’s actions; instead, a
finder of fact may, but need not, infer that the defendant intended the natural and
probable consequences of the defendant’s actions. See Thornton, 397 Md. at 733, 919
A.2d at 695 (“[O]nly an inference, rather than a presumption of intent, may be drawn
from voluntary acts . . . . [T]he trier of fact is [not] allowed to presume that one intends
the natural and probable consequences of his or her acts[.]” (Citation omitted)); see also
MPJI-Cr 3:31 (“[Y]ou may, but are not required to, infer that a person ordinarily intends
the natural and probable consequences of [his] [her] acts [and/or omissions].” (Some
brackets in original)). The lack of a presumption of intent negates the criticism of the
“natural and probable consequences” doctrine. See Model Penal Code § 2.02 at 236 n.12
(1985) (The “natural and probable consequences” doctrine “should not be taken as an
invitation to dispense with the need for making the inference” about intent. (Emphasis
added)).
Here, first, we determine that the evidence was sufficient to support a reasonable
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inference that Jones knew that multiple people were in the apartment. It is undisputed
that Jones knocked on the apartment’s front door; Tindley answered the door; and Jones
asked: “[W]here the two [n*****]s at[?]” In other words, Jones indicated that he was
seeking people other than Tindley and that he believed that at least two people (in
addition to Tindley) may have been in the apartment. Indeed, Byron testified that: (1)
before the shootings, Jones said that “he [had] got[ten] into an altercation with two boys”
at Wink Lane Apartments; and (2) after the shootings, Jones said that “he was going to
kill . . . the two boys [whom] he was trying to get.” Johnson testified that, after Tindley
shut the door, but before she heard the gunshots: (1) Tindley told Johnson: “[D]on’t go to
the door[,] they got a gun”; and (2) Johnson “hollered” to her grandson: “[G]et down[.]”
Byron testified that, while he remained in the car (i.e., while he was farther away from the
apartment than Jones was), he heard “yelling.” Based on Johnson’s testimony and
Byron’s testimony, a finder of fact could reasonably infer that Jones knew that multiple
people were in the apartment.
Next, we conclude that the evidence was sufficient to support a reasonable
inference that Jones intended to place everyone in the apartment in fear of immediate
physical harm. It is undisputed that, while Johnson was in the apartment, Jones
intentionally fired a gun three times, and at least two bullets entered the apartment. In
other words, Jones intentionally committed an act that turned the apartment into a zone of
danger.3 As discussed above, the evidence was sufficient to support a reasonable
3
The extent of a zone of danger will depend on each case’s particular circumstances.
For example, in Ford, 330 Md. at 707, 625 A.2d at 996, the zone of danger was the interior
of the vehicles at which the defendant threw rocks. Here, the zone of danger is the apartment
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inference that Jones knew that multiple people were in the zone of danger. Thus, Jones
intended to place everyone in the zone of danger in fear of immediate physical
harm—even if Jones did not know of Johnson’s presence in the zone of danger.
We are unpersuaded by Jones’s reliance on State v. Whalen, 49 S.W.3d 181, 185
(Mo. 2001), in which the Supreme Court of Missouri held that evidence there was
insufficient to support convictions for first-degree assault. In Whalen, see id., while two
law enforcement officers were in a hallway and outside of the defendant’s sight, the
defendant shot a third law enforcement officer who was in his bedroom’s doorway. A
jury convicted the defendant of first-degree assault against the two unharmed law
enforcement officers. See id. On appeal, the defendant contended that the evidence was
insufficient to support a finding that he knew of the two unharmed law enforcement
officers’ presence. See id. The Supreme Court of Missouri agreed, stating that “only
speculation support[ed] the inference that” the defendant knew of the two unharmed law
enforcement officers’ presence. Id. (emphasis added). The Supreme Court of Missouri
implicitly acknowledged that a finder of fact may infer a defendant’s knowledge of a
victim’s presence; in Whalen, see id., the evidence was simply insufficient to support
such an inference.
Similarly, we are unpersuaded by Jones’s reliance on State v. Wilson, 924 S.W.2d
648, 649, 650 (Tenn. 1996), in which the Supreme Court of Tennessee held that evidence
because Jones shot at the apartment’s front door; one bullet entered the living room; and
another bullet entered a rear bedroom. Because there is no issue as to second-degree assault
of the intent-to-frighten type against anyone who was outside the apartment, we need not
consider whether the zone of danger included other parts of, or any area outside, the
apartment building.
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there was insufficient to support convictions for aggravated assault where a defendant
shot at a house that contained multiple people. No people or vehicles were near the
house, and “[n]o testimony pointed to any facts—lights, noises, or other signs—which
would indicate to a passerby that the house was occupied.” Id. at 652. Thus, the
Supreme Court of Tennessee determined that the evidence was insufficient to support a
finding that the defendant knew that the house was occupied. See id.Likewise, Jones’s reliance on Hollingsworth v. State, 366 So. 2d 326 (Ala. Crim.
App. 1978), is misplaced. In Hollingsworth, id. at 331-32, 327, the Court of Criminal
Appeals of Alabama held that evidence there was insufficient to support a conviction for
assault with the intent to murder where a defendant shot into a house. “[T]here [was] no
evidence what[so]ever” that the defendant knew “that the house was . . . occupied[.]” Id.
at 331-32.
Because we determine that the evidence was sufficient to support a reasonable
inference that Jones knew that multiple people—i.e., people other than Tindley—were in
the apartment, this case is distinguishable from Whalen, 49 S.W.3d 181, Wilson, 924
S.W.2d 648, and Hollingsworth, 366 So. 2d 326, in which appellate courts held that
certain evidence was insufficient to support convictions for assault where the evidence
was insufficient to support findings that the defendants knew of the presence of more than
one victim, or the presence of any victims at all.4
4
We also reject Jones’s contention that the circuit court erred in denying the motion
for judgment of acquittal as to second-degree assault of the intent-to-frighten type against
Johnson, because, in granting the motion for judgment of acquittal as to attempted first-
degree murder against Johnson and her grandson, the circuit court stated: “I’m not even sure
[that] Jones knew that there was anybody [other than Tindley] in the apartment.” Although
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We hold that the evidence was sufficient to support Jones’s conviction for second-
degree assault of the intent-to-frighten type against Johnson, and a defendant can commit
second-degree assault of the intent-to-frighten type against a victim of whose presence in
particular the defendant does not know.
JUDGMENT OF THE COURT OF SPECIAL
APPEALS AFFIRMED. PETITIONER TO PAY
COSTS.
the circuit court may have speculated as much in considering attempted first-degree murder,
attempted first-degree murder is comprised of elements that second-degree assault lacks,
such as deliberation, premeditation, and a substantial step beyond mere preparation; thus, it
does not follow from the circuit court’s grant of the motion for judgment of acquittal as to
attempted first-degree murder that the evidence was insufficient to support a conviction for
second-degree assault of the intent-to-frighten type against Johnson.
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