Latray v. State , 221 Md. App. 544 ( 2015 )

REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 0588
September Term, 2013
GARY ROSS LATRAY
v.
STATE OF MARYLAND
Krauser, C.J.,
Zarnoch,
Raker, Irma S.
(Retired, Specially Assigned),
JJ.
Opinion by Raker, J.
Filed: February 25, 2015
Gary Ross Latray1 , appellant, was convicted in the Circuit Court for Garrett County
of robbery with a dangerous weapon, robbery, second-degree assault, theft of property
having a value less than $1,000, representing a destructive device and making a false
statement about a destructive device. In this appeal, he presents the following question for
our review:
“Whether the merged convictions and/or sentence/s for
representation of a destructive device and/or false statement
regarding a destructive device should have merged with the
conviction and/or sentence for robbery with a dangerous or
deadly weapon.”
We shall hold that the sentences do not merge and affirm.
I.
Appellant was indicted by the Grand Jury for Garrett County with the offenses of
robbery with a dangerous weapon, robbery, second-degree assault, theft of property having
a value less than $1,000, representing a destructive device and making a false statement
about a destructive device. The jury convicted him of all the charges. The court sentenced
appellant to a term of incarceration of twenty years for robbery with a dangerous weapon
and a consecutive term of incarceration of ten years for making a false statement about a
destructive device.2
The following evidence was presented at trial. On November 20, 2009, Christina
Dawson was working at the Shoe Show store when a man entered the store. The man started
1
In the record, appellant’s last name is referred to as both LaTray and Latray. We
shall use the latter spelling throughout for the sake of consistency.
2
The court merged the robbery and second-degree assault charges with the robbery
with a dangerous weapon charge for sentencing purposes. The court also merged the
representation of a destructive device charge with making a false statement about a
destructive device “for the sake of sentencing.” As to the theft charge, the court vacated the
sentence.
looking at boots and walked around the store looking up and down around all the aisles.
When he returned to the aisle where the boots were located, Ms. Dawson asked if the man
needed any assistance. He responded that he wanted to try on the mate to a certain “Harley
boot” that was on display at the store. Ms. Dawson retrieved the corresponding boot, gave
it to the man to try on and then checked on other customers that were in the store.
After trying on the boots, the man informed Ms. Dawson that he wanted to purchase
them. Ms. Dawson took the boots to the counter and rang them up on a cash register. As
she did, the man put a bag on the counter, handed Ms. Dawson a note, walked around to the
cash register and then informed her that he had a gun and wanted “all the money.” The
handwritten note warned Ms. Dawson that there was a bomb in the box and that she had 30
seconds to hand over all of the cash. It instructed her that she was to wait for 30 minutes
before calling the police, and if she called before the 30 minutes were up, the man would
“blow this place up.”
When Ms. Dawson opened the cash register drawer, the assailant took all of the
money from the tray. He then left the store, but, moments later, he returned to the store,
approached the counter and took the boots stating, “[w]ell, I might as well take these boots,
too.” Ms. Dawson identified appellant as the perpetrator from a photographic array and
identified appellant in-court as the person who had robbed the store.
On the day of the robbery, Deputy Matthew Wrenn of the State Fire Marshal’s Office
went to the Shoe Show store in response to a call regarding a possible explosive device at
that location. When he arrived, the whole complex had been evacuated and Ryan Chapman,
a bomb technician, advised him that there was a possible explosive device on the counter
in the shoe store and that there was a note indicating that it might be a bomb. Mr. Wrenn
donned his bomb suit, x-rayed the suspected device and concluded that the device might,
2
indeed, be a bomb. Upon further examination, however, he found that there was no bomb
inside and that the box contained a cellular phone, a half-inch socket extension, a cellular
phone charger, light gauge wiring, automobile spark plugs and a t-shirt.
Sergeant Clark Warnick, a Garrett County deputy sheriff, responded to a robbery call
at the Shoe Show store. He interviewed Ms. Dawson, who said that the robber had brought
into the store a plastic bag that had a box in it. The robber had warned her that there was a
bomb in the box and that if she did not do what he told her to do, it would go off. She
indicated that although the man stated that he had a gun, she never saw it. Police collected
evidence from the crime scene, including a fingerprint that was later identified as appellant’s
print.
Sergeant P.B. Cork of the West Virginia State Police was involved in apprehending
appellant. He testified that, based upon information he had received, he arrested appellant
at a residence in Upshur County, West Virginia. Sergeant Cork stated that he recovered a
pair of Harley Davidson boots from the residence.
As indicated, appellant was convicted and sentenced to incarceration. This timely
appeal followed.
II.
Before this Court, appellant contends that the court should have merged his
conviction for making a false statement concerning a destructive device with his robbery
with a deadly weapon conviction. Specifically, he posits that because the false bomb threat
formed the underlying act establishing the aggravated robbery violation, as indicated by the
Grand Jury Indictment, the sentence for that offense should have merged into the aggravated
3
robbery sentence. He relies on the required evidence test, the rule of lenity and principles
of fundamental fairness to support his argument for merger.
Conversely, the State maintains that the court imposed properly two consecutive
sentences for aggravated robbery and making a false statement concerning a destructive
device. The State argues first that the convictions do not merge under the required evidence
test because each offense requires proof of at least one fact that the other does not. The State
argues next that appellant has not preserved his arguments for merger under the rule of lenity
or principles of fundamental fairness because he did not raise them before the trial court.
Nevertheless, the State maintains that neither theory of merger is appropriate in the instant
matter because the offenses are distinct and the Legislature intended to punish them
separately.
III.
We turn to appellant’s sole issue before this Court: whether the court should have
merged his convictions for robbery with a deadly weapon and making a false statement
concerning a destructive device. We disagree with appellant.
The Fifth Amendment to the United States Constitution states that no person shall “be
subject for the same offense to be twice put in jeopardy of life or limb . . . .” U.S. Const.
amend. V. The “Double Jeopardy” rule of the Fifth Amendment “bars multiple punishments
and trials for the same offense.” State v. Long, 405 Md. 527, 536, 954 A.2d 1083, 1089
(2008). This prohibition is applicable to the states through the Fourteenth Amendment.
Odum v. State, 412 Md. 593, 603, 989 A.2d 232, 238 (2010); see Benton v. Maryland, 395
U.S. 784, 794 (1969). Although the Maryland Constitution does not contain a double
4
jeopardy clause, Maryland common law does provide “well-established protections” against
double jeopardy. Long, 405 Md. at 536, 954 A.2d at 1089.
The preferred test to determine whether offenses stemming from the same transaction
merge for double jeopardy purposes is the required evidence test. Anderson v. State, 385
Md. 123, 131, 867 A.2d 1040, 1044 (2005); Cousins v. State, 277 Md. 383, 388, 354 A.2d
825, 829 (1976). The required evidence test provides that, “where the same act or
transaction constitutes a violation of two distinct statutory provisions, the test to be applied
to determine whether there are two offenses or only one, is whether each provision requires
proof of a fact which the other does not.” Blockburger v. United States, 284 U.S. 299, 304
(1932); Thomas v. State, 277 Md. 257, 265, 353 A.2d 240, 265 (1976). Thus, if each
offense requires proof of a fact which the other does not, then “neither multiple prosecutions
nor multiple punishments are barred by the prohibition against double jeopardy even though
each offense may arise from the same act or criminal episode.” Cousins, 277 Md. at 388-89,
354 A.2d at 829.
Turning to the case sub judice, appellant maintains that his charges of aggravated
robbery and making a false statement concerning a destructive device merge under the
required evidence test. Pursuant to Maryland Code (2002, Repl. Vol. 2012) § 3-403(a) of
the Criminal Law Article,3 appellant was charged in Count 1 of the indictment with
aggravated robbery. The indictment states that appellant “unlawfully and feloniously, by
displaying a written instrument claiming that [he] had a dangerous weapon, rob[bed]
Christina Dawson . . . .” Section 3-403(a) provides as follows:
3
Unless otherwise indicated herein, all subsequent statutory references to Maryland
Code (2002, Repl. Vol. 2012) shall be to the Criminal Law Article.
5
“(a) A person may not commit or attempt to commit robbery
under § 3-402 of this subtitle:
(1) with a dangerous weapon; or
(2) by displaying a written instrument claiming
that the person has possession of a dangerous
weapon.”
The offense of robbery requires “the felonious taking and carrying away of the personal
property of another, from his person or in his presence, by violence or putting in fear . . . .”
West v. State, 312 Md. 197, 202, 539 A.2d 231, 233 (1988). Section 9-504 provides for the
requirements constituting the offense of making a false statement concerning a destructive
device. Section 9-504 states, in pertinent part, as follows:
“(b) A person may not circulate or transmit to another, with
intent that it be acted on, a statement or rumor that the person
knows to be false about the location or possible detonation of
a destructive device or the location or possible release of toxic
material, as those terms are defined in § 4-501 of this article.”
Appellant’s convictions of aggravated robbery and making a false statement
concerning a destructive device each require proof of a fact which the other does not.
Section 9-504, unlike § 3-403(a), requires proof of a false statement about the location or
possible detonation of a destructive device. Conversely, the provision of § 3-403(a) at issue
in the case at bar, unlike § 9-504, requires proof of a written instrument and the felonious
taking and carrying away of the personal property of another. It follows that the offenses
do not merge under the required evidence test.
Before we turn to the rule of lenity and principles of fundamental fairness, we address
the State’s concern that these theories of merger are not preserved for our review. The
failure to merge a sentence when it is required is considered an inherently illegal sentence
as a matter of law. Britton v. State, 201 Md. App. 589, 598-99, 30 A.3d 236, 242 (2011).
6
As such, a court “may correct an illegal sentence at any time.” Md. Rule 4-345(a). We have
held that because of the inherent illegality of the sentence, the normal preservation
requirements do not apply in this context. Pair v. State, 202 Md. App. 617, 624, 33 A.3d
1024, 1028 (2011). Thus, we shall review appellant’s arguments based on the rule of lenity
and fundamental fairness despite his failure to raise them at sentencing.
Although the required evidence test is considered to be the most common standard,
“it is not the exclusive standard” for determining merger of offenses. Brooks v. State, 284
Md. 416, 423, 397 A.2d 596, 599 (1979). The rule of lenity may compel merger even when
the required evidence test does not. Pair, 202 Md. App. at 637, 33 A.3d at 1035. The rule
of lenity is a matter of legislative intent, which applies only where at least one of the two
offenses subject to the merger analysis is a statutory offense. Id. at 638, 33 A.3d at 1036.
In Walker v. State, 53 Md. App. 171, 201, 452 A.2d 1234, 1250 (1982), we explained as
follows:
“[The rule of lenity] is purely a question of reading legislative
intent. If the Legislature intended two crimes arising out of a
single act to be punished separately, we defer to that legislated
choice. If the Legislature intended but a single punishment, we
defer to that legislated choice. If we are uncertain as to what
the Legislature intended, we turn to the so-called ‘Rule of
Lenity,’ by which we give the defendant the benefit of the
doubt.” (internal citations omitted).
Akin to other canons of statutory construction, the rule of lenity is “neither absolute nor
exclusive.” Holbrook v. State, 133 Md. App. 245, 257, 754 A.2d 1103, 1109 (2000). In
Johnson v. State, 56 Md. App. 205, 212-16, 467 A.2d 544, 548-59 (1983), a seminal case
in rule of lenity jurisprudence, we explained the common thread in cases merging sentences
under the rule of lenity as follows:
“It is the assumption (often not articulated) that under the
circumstances of a given case, it is reasonable to believe that the
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legislature that enacted a particular statute or statutes would
express some intent as to multiple punishment. That
assumption is appropriate when a single act is charged as
multiple offenses under a single statute (Ladner, Bell and
Prince), where the subject of the two statutes is of necessity
closely intertwined (Loscomb and Fields), where one offense is
necessarily the overt act of a statutory offense (Walker), and
where one statute, by its very nature, affects other offenses
because it is designed to effect multiple punishment (Whack).
Under those circumstances, it is not unreasonable to assume that
the legislative body contemplated the possibility of multiple
punishment and to conclude that unless the intention in favor of
multiple punishment is clear . . . the Rule of Lenity or its
equivalent should be applied against the imposition of multiple
punishment.”
These common characteristics notwithstanding, we do not follow any “rigid of fixed
criteria” in applying the rule of lenity. White v. State, 318 Md. App. 740, 745, 569 A.2d
1271, 1274 (1990). Importantly, however, we do not create an ambiguity where none exists.
See Jones v. State, 336 Md. 255, 261, 647 A.2d 1204, 1207 (1994) (noting that the rule of
lenity is an aid to resolve an ambiguity “and it may not be used to create an ambiguity where
none exists”).
There is no indication that the Legislature intended that the offenses at issue should
merge for sentencing purposes. We start by considering the statutorily mandated penalty for
each offense. Section 9-504, prohibiting the making of a false statement concerning a
destructive device, provides that “[a] person who violates this section is guilty of a felony
and on conviction is subject to imprisonment not exceeding 10 years or a fine not exceeding
$10,000 or both.” Section 3-403, prohibiting aggravated robbery, states that “[a] person
who violates this section is guilty of a felony and on conviction is subject to imprisonment
not exceeding 20 years.” Nothing from the plain language of the statutes indicates that the
Legislature intended that the offenses should merge for sentencing purposes. We note
further that none of the common characteristics delineated by Johnson permeate this case.
8
We are not dealing with a single act charged as multiple offenses under the same statute; the
subject of the two offenses (making a false bomb threat and the felonious taking of property
of another) are not closely intertwined; we do not have a situation where one offense is
necessarily the overt act of a statutory offense; and there is nothing to suggest that one
statute, by its nature, affects the other statute because it is designed to effect multiple
punishment. Aggravated robbery and making a false statement concerning a destructive
device are distinct offenses that are intended to be punished separately.
Moreover, we reject appellant’s argument that the absence of an anti-merger
provision within the statutes creates implicitly an ambiguity as to multiple punishment. The
absence of an anti-merger provision indicates that the Legislature did not address explicitly
the topic of merger in the statutory scheme, but nothing more may be inferred from it. See
Quansah v. State, 207 Md. App. 636, 655, 53 A.3d 492, 503 (2012) (noting that “the
absence of anti-merger language . . . [does not] indicate[ ] that the Legislature intended that
sentences for violating a peace order and second-degree assault should be merged”). In light
of our analysis of the statutes at issue, we heed the words of Judge Charles Moylan, Jr.,
writing for this Court, stating that “when dealing with Maryland statutes, it is absurd to look
for legislative intent or for the lack thereof in circumstances wherein there would be no
occasion for the Legislature to have an intent, one way or the other. One does not look for
legislative intent where there was none.” Pair, 202 Md. App. at 641, 33 A.3d at 1037. We
will not create an ambiguity where none exists and hence, we hold that appellant’s
convictions for aggravated robbery and making a false statement concerning a destructive
device do not merge under the rule of lenity.
Appellant’s last line of defense relies on the principle of fundamental fairness. It is
a defense that, by itself, rarely is successful in the context of merger. See Pair, 202 Md.
9
App. at 643, 33 A.3d at 1038 (stating that “99% of [ ] merger cases have been decided by
the application” of the required evidence test and the rule of lenity). Fairness depends on
the circumstances surrounding the convictions, not solely the elements of the crimes.
Carroll v. State, 428 Md. 679, 695, 53 A.3d 1159, 1168 (2012). It follows then that our
inquiry on appeal will be fact-intensive. See Pair, 202 Md. App. at 644-46, 33 A.3d at 1028
(noting that fundamental fairness doctrine is drastically different from the required evidence
test and the rule of lenity because it is “heavily and intensively fact-driven”). The principal
justification for rejecting a claim that fundamental fairness begs merger in a given case is
that the offenses punish separate wrongdoing. See Carroll, 428 Md. at 697-99, 53 A.3d at
1170-71 (noting that conspiracy to commit armed robbery and attempted armed robbery do
not merge under the principles of fundamental fairness because the defendant’s convictions
“targeted two different crimes”). Our research has uncovered only two cases in Maryland
that have required merger based solely on principles of fundamental fairness— Monoker v.
State, 321 Md. 214, 582 A.2d 525 (1990) and Marquardt v. State, 164 Md. App. 95, 882
A.2d 900 (2005). See Bishop v. State, 218 Md. App. 472, 507, 98 A.3d 317, 337 (2014)
(noting the same). Likewise, appellant points us to Monoker and Marquardt to support his
argument for merger based on fundamental fairness. To better determine whether appellant
can seek succor under the principles espoused from either of these cases, we shall discuss
them in turn.
In Monoker, the Court of Appeals considered whether solicitation to commit daytime
housebreaking merged with conspiracy to commit daytime housebreaking. Monoker was
the victim’s attorney and had been charged with and convicted of the offenses of theft and
forgery. While awaiting sentencing, Monoker asked a fellow inmate, Stanley Almony, if
upon his release from incarceration he would break into the victim’s home, assault her and
10
her mother and steal everything he could. Almony agreed and enlisted several other inmates
to provide assistance. Monoker briefed the group on the layout of the victim’s home and the
location of valuables. Almony and the others were spotted and arrested before they could
complete the offense. For his part in the scheme, the jury convicted Monoker of solicitation
and conspiracy to commit daytime housebreaking. The court sentenced him on each charge
to a term of incarceration of ten years, to be served consecutively. The Court of Appeals
raised and dismissed the required evidence test and the rule of lenity as bases for merger.
Monoker, 321 Md. at 222-23, 582 A.2d at 528-29. The Court held nonetheless that it was
“unfair to uphold convictions and sentences for both crimes” because, in Monoker’s case,
the conspiracy to burglarize the victim’s home “certainly did ripen from the solicitation of
Almony to commit that same crime.” Id. at 223, 582 A.2d at 529. The Court shed a
glimmer of light on the elusive concept of fundamental fairness by noting that “the
solicitation was part and parcel of the ultimate conspiracy and thereby an integral component
of it.” Id., 582 A.2d at 529. The Court concluded that it would be unfair to Monoker to
“suffer twice, once for the greater crime and once for a lesser included offense of that
crime.” Id. at 224, 582 A.2d at 529.
In Marquardt, we considered whether a charge of malicious destruction of property
merged into a charge of burglary for sentencing purposes. On the night of the incident
giving rise to the charges, Marquardt was looking for his wife. He entered an apartment
building in which he suspected that his wife was smoking crack cocaine with another
person. Marquardt approached apartment number 17 and broke the glass of the front door.
The resident encountered Marquardt and, after speaking with him, informed him that he had
the wrong apartment. Marquardt proceeded to apartment number 13 where he used a
baseball bat to break through the front door. He saw his wife and another man smoking
11
what appeared to be crack cocaine and a fight between Marquardt and the other man ensued.
Marquardt was charged and convicted of two counts of malicious destruction of property
and two counts of burglary in connection with the incidences at both apartments. The trial
court sentenced Marquardt to two separate sentences for the two counts of malicious
destruction of property and the two counts of burglary. On appeal, we held that the
“malicious destruction of property was clearly incidental to the breaking and entering of
[apartments] 13 and 17 . . . .” Marquardt, 164 Md. App. at 152, 882 A.2d at 934.
Accordingly, we merged each count of malicious destruction of property with each count
of burglary for sentencing purposes. Id. at 153, 882 A.2d at 934.
We find appellant’s reliance on Monoker to be ineffectual. First, Monoker’s “part
and parcel” language is inapplicable in the case at bar. Appellant committed separate and
distinct acts to complete the aggravated robbery and making a false bomb threat charges.
For example, even if appellant had not taken any property from the shoe store, he could have
nonetheless been convicted of making a false bomb threat through his act of handing the
store clerk a note threatening that he had a bomb in the box. Without the taking of the cash
and the boots from the store, however, appellant could not have been convicted of the
aggravated robbery charge. Under these circumstances, to merge the sentences on the basis
that the offenses were “part and parcel” of one another, would be paramount to rewarding
appellant for completing successfully the robbery. See Bishop, 218 Md. App. at 508, 98
A.3d at 338 (declining to merge for fundamental fairness conspiracy to commit murder with
first-degree murder because the defendant committed “separate and distinct” crimes and
should not be rewarded with a reduced sentence merely because he was successful in
carrying out his “plan” to murder the victim). And, as we explain infra, each act—making
a false bomb threat and the felonious taking of property of another—resulted in distinct
12
harms to multiple victims. Second, in Monoker, the Court created a logical fallacy when it
held, on one hand, that the solicitation and conspiracy charges did not merge under the
required evidence test, but later stated that merger is appropriate for fairness purposes
because it would be unfair for Monoker to suffer twice, once for the greater crime and once
for the lesser included offense of that crime. The Monoker Court used “language of double
jeopardy to describe a situation which it candidly acknowledge[d] does not involve double
jeopardy . . . .” Williams v. State, 100 Md. App. 468, 490, 641 A.2d 990, 1000 (1994).
Monoker’s inconsistent reasoning has not gone unnoticed by this Court. In Williams, Judge
Moylan noted that “the Monoker principle is by no means free of doctrinal ambiguity.”
Williams, 100 Md. App. at 489-90, 641 A.2d at 1000. It is perhaps in light of this doctrinal
ambiguity that only one case, Marquardt, has followed Monoker and found merger solely
on fundamental fairness grounds. See Marquardt, 164 Md. App. at 152, 882 A.2d at 934.
In light of the circumstances present in the case at bar, we find that a rigid application of the
principles delineated by Monoker would be inadequate for “such a fluid test dependent upon
a subjective evaluation of the particular evidence.” Pair, 202 Md. App. at 649, 33 A.3d at
1042.
Marquardt is also inapposite. Both offenses in Marquardt, malicious destruction of
property and burglary, result inevitably in the destruction of property. The offenses are
codified together under Title 6 of the Criminal Law Article governing “Crimes Against
Property.” Conversely, as explained infra, making a false bomb threat and aggravated
robbery are wholly distinct crimes intended to punish separate harms. Unlike in Marquardt,
the two offenses at issue are codified under separate sections of the Criminal Law Article.
Making a false bomb threat is promulgated under “Crimes Against Administration” and
aggravated robbery falls under “Other Crimes Against the Person.” Finally, in Marquardt,
13
the Court provided little insight as to its reasoning for merging the malicious destruction
charge with the burglary charge under fundamental fairness other than to state that the
crimes were “clearly incidental” to one another. Accordingly, we derive little, if any,
guidance from Marquardt to resolve the issue before this Court.
Appellant’s contention that it would be inequitable to impose separate punishments
for a single act or transaction is unpersuasive. There were two separate acts arising from a
single criminal episode. Appellant first handed Ms. Dawson a note that represented falsely
that he had a bomb. He then took the money and the boots from the store and exited the
premises. Although these two acts were part of the same criminal episode, we find little
difficulty in concluding that the separate acts resulting in distinct harms may be charged and
punished separately. See State v. Boozer, 304 Md. 98, 105, 497 A.2d 1129, 1132 (1985)
(noting that “separate acts resulting in separate insults to the person of the victim may be
separately charged and punished even though they occur in very close proximity to each
other and even though they are part of a single criminal episode or transaction”).
Turning to the threshold issue, we hold that it is not unfair to uphold multiple
punishments in the instant matter because making a false statement concerning a destructive
device and aggravated robbery punish separate harms. Making a false statement concerning
a destructive device is aimed at the transmittal of “false bomb scare rumors or statements,
intending to create havoc by, for example, having buildings evacuated and police bomb
squads summoned.” Moosavi v. State, 355 Md. 651, 663-64, 736 A.2d 285, 291 (1999)
(emphasis in original). Representing that one has a bomb not only creates havoc, but also
likely invokes different and more extreme responses on the part of security officers. For
example, in attempting to apprehend an armed robber, security officers likely would take
14
different measures when dealing with a person claiming to have a bomb than a person armed
with a handgun.
Robbery with a dangerous or deadly weapon is a crime committed against a person
that prohibits the taking of property of any value, by force, with a dangerous or deadly
weapon. § 3-403; West, 312 Md. at 202, 539 A.2d at 233. The distinct nature of these
offenses, and, that they are prohibited to protect distinct harms is evidenced by their
codification in the Criminal Law Article. Aggravated robbery is promulgated under “Title
3,” which governs “Other Crimes Against the Person.” Conversely, the making of a false
bomb threat charge falls under “Title 9,” which prohibits “Crimes Against Public
Administration.” In fact, because of the financial harm that results from the havoc created
by making a false bomb threat, §9-504(e) provides that the court may order the offender to
pay restitution. The provision permits the court to order restitution to, inter alia, the State,
county or a municipal corporation for the costs incurred for “responding to a location and
searching for a destructive device.” § 9-504(e). The offender may also be ordered to pay
restitution to the “owner or tenant of a property” for “goods, services, or income lost as a
result of the evacuation of the property . . . .” Id. That the offenses at issue were intended
to punish separate harms is no more apparent then as illustrated by the circumstances in the
instant matter.
The record reveals that appellant’s actions caused the type of harm intended to be
punished by making a false statement concerning a destructive device. Deputy Wrenn of the
State Fire Marshal’s Office received a call concerning a possible bomb at the shoe store.
When he arrived, the entire complex had been vacated and a bomb technician had been
summoned. The officer believed initially that the device could be a bomb. Only upon
further inspection could he conclude that it was not a bomb. Summoning Deputy Wrenn,
15
the bomb technician and evacuating the entire complex was necessary because of the note
that appellant handed to Ms. Dawson threatening that he had a bomb, not because he took
money and boots from the shoe store. Because the offenses result in distinct harms—one
harms a person, the other harms public administration—it is of little consequence that the
aggravated robbery was perpetrated by means of making a false statement concerning a
destructive device. See Pryor v. State, 195 Md. App. 311, 339, 6 A.3d 343, 359 (2010)
(noting that first-degree assault, a crime against a person, and first-degree arson, a crime
against property, did not merge under principles of fundamental fairness because while it
was true that “the crime of first-degree assault was perpetrated by means of arson, each
crime punishes a different harm”). It is equally unavailing, for fairness purposes, that the
two offenses culminated in the commission of the robbery of the store. See Carroll, 428
Md. at 699, 53 A.3d at 1170 (rejecting the argument that fairness dictates merger when two
offenses “culminate in the commission of the same crime”).
In sum, making a false statement concerning a destructive device is a wholly distinct
offense from aggravated robbery. The offenses do not merge under the required evidence
test, there is no evidence of legislative intent for merger under the rule of lenity and, under
these circumstances, we do not find compelling appellant’s argument that fairness mandates
merger. We hold that the court sentenced appellant properly to two separate terms of
incarceration, one term for robbery with a deadly or dangerous weapon and another term for
making a false statement concerning a destructive device.
JUDGMENTS OF THE CIRCUIT
COURT FOR GARRETT COUNTY
AFFIRMED. COSTS TO BE PAID BY
APPELLANT.
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