Schiff v. State ( 2022 )

Graham Schiff v. State of Maryland, Case No. 725, September Term 2021.
Opinion by Wells, J.
CRIMINAL LAW – STALKING – SUFFICIENCY OF THE EVIDENCE
A jury convicted appellant Graham Schiff of stalking, based on several letters and emails
he sent to one Assistant State’s Attorney (ASA#1) expressing his sexual desire for ASA#1
(among many other things) and correspondence he sent to another ASA (ASA#2) regarding
ASA#1. Schiff challenged his conviction based on his assertion that the communications
(1) did not constitute threatening conduct; (2) did not intend to cause ASA#1 serious
emotional distress; and (3) did not constitute a “malicious, persistent pattern of conduct
showing continuity of purpose.” Here, the jury was charged with reviewing Schiff’s
conduct under Maryland Code Annotated, Criminal Law Article (“CR”) § 3-802(a)(2),
where a conviction rests on a jury’s finding that the defendant “intends to cause or knows
or reasonably should have known that the conduct would cause serious emotional distress
to another.” Schiff’s correspondences, their quantity, and their content, when viewed in
totality, satisfy each element of CR§ 3-802(a)(2) proving that Schiff stalked ASA#1.
CRIMINAL LAW – HARRASSMENT – SUFFICIENCY OF THE EVIDENCE
Similarly, the same evidence was sufficient to convict Schiff of harassing ASA#1 under
CR § 3-803(a). In this instance, the prohibited conduct is where one maliciously engages
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. To satisfy the second element of
the statute, we focus only on those communications Schiff sent to ASA#1, her colleague,
and the circuit court after ASA#1 obtained a peace order against Schiff. We hold that the
peace order constituted a warning for Schiff to cease corresponding with ASA#1 directly
or indirectly, such as through her colleague. Further, the correspondence was meant to
harass ASA#1 and was without legal purpose.
CONSTITUTIONAL LAW–FREEDOM OF SPEECH
Despite Schiff’s arguments to the contrary, his correspondence to ASA#1 and her colleague
was not protected speech under the First Amendment.
Circuit Court for Montgomery County
Case No. 136380C
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 725
September Term, 2021
______________________________________
GRAHAM SCHIFF
v.
STATE OF MARYLAND*
___________________________________
Wells, C.J.,
Shaw,
Harrell, Glenn T., Jr.,
(Senior Judge, Specially Assigned)
JJ.
______________________________________
Opinion by Wells, C.J.
______________________________________
Filed: April 27, 2022
*Tang, Rosalyn and Albright, Anne K., JJ., did
not participate in the Court’s decision to
designate this opinion for publication pursuant to
Rule 8-605.1.
Several years before this appeal and in a different case, an Assistant State’s Attorney
with the Montgomery County State’s Attorney’s Office (“ASA#1”)1 secured a stalking
conviction against appellant Graham Schiff in the Circuit Court for Montgomery County.
For the two years following that trial, Schiff sent a total of eight letters or e-mails directly
to ASA#1 or to others professionally connected to her. Each correspondence detailed, to
varying degrees, Schiff’s amorous feelings for ASA#1, who wanted no contact with Schiff.
As a result, the State charged Schiff with stalking and harassing ASA#1. Ultimately, a jury
empaneled in the Circuit Court for Montgomery County convicted him of both offenses.
Schiff timely appealed both convictions, presenting the following two issues which we
have slightly rephrased2:
1. Is the evidence sufficient to sustain the convictions for stalking and harassment?
2. Were Schiff’s communications that formed the basis of the stalking and
harassment convictions outside the protection of the First Amendment?
For reasons we explain, we answer “yes” to both questions and affirm.
1
We will use “ASA#1” to protect the privacy of the victim.
2
Schiff’s questions presented, verbatim, were:
1. Is the evidence sufficient to sustain the convictions for stalking and harassment?
2. Is the evidence sufficient to sustain the convictions because the correspondence
that formed the basis of the stalking and harassment convictions were based on
protected speech?
PROCEDURAL AND FACTUAL BACKGROUND
Schiff’s Original Stalking Conviction and His First Encounters with ASA#1
In early 2018, Schiff was convicted of stalking in a case ASA#1 prosecuted in
Montgomery County. Later, after a post-conviction hearing arising from that case, a patrol
officer who was involved, Officer Melissa Weber, gave ASA#1 a letter from Schiff dated
March 12, 2018. The letter was addressed “To Whom It May Concern,” and discussed the
facts of Schiff’s stalking case. The “p.p.s” at the end of the letter explained that upon
Schiff’s release, he planned to create a “State’s Attorney Barbie,” which would come with
certain “catch phrases,” including “Mr. Schiff, I legally consent to you having your way
with me,” and “Mr. Schiff, it’s not weird at all I look like a runway model, am pushing 30,
making six figures, and have no wedding ring. I just haven’t met the right guy yet, it has
nothing to do with my personality.”
Schiff’s Direct Communications to ASA#1
On June 27, 2019, Schiff sent an e-mail to ASA#1 and ASA#2, another prosecutor
in the Montgomery County State’s Attorney’s Office.3 The e-mail was addressed to
ASA#2, but Schiff noted in the first sentence that ASA#1 was copied on the e-mail, adding
a heart (“<3”) in parentheses next to her name. The e-mail mentioned a post-conviction
petition Schiff had filed related to his stalking charge, and asked ASA#2 questions about
her connection to the victim in the stalking case, which he twice acknowledged she was
not legally obligated to answer. Schiff also described two strange occurrences he observed
3
To protect this person’s privacy, we shall refer to her only as “ASA#2.”
2
after having previously written to ASA#1, speculating they were the result of ASA#1
sharing what he had written to her with others, all of whom, he claimed, were conspiring
against him.
Because what Schiff wrote to ASA#1, ASA#2, and two judges, forms the basis of
his convictions for harassment and stalking of ASA#1, we reproduce the relevant sections
of his correspondence in this opinion. We regret the length of the quoted passages but
replicate them to show the extent and the content of Schiff’s writings.
On July 14, 2019, ASA#1 received an e-mail from Schiff with the subject line,
“Cease and Desist.” In this email, Schiff wrote that he had learned about statements
ASA#1 made about him that he considered slanderous. He also wrote:
I cannot help but notice that this aggression towards me happened nearly a
week after I filed my most recent motion and almost two weeks after I lost
contact with you. I’m assuming you considered some[]thing(s) I wrote in
those e-mails to be offensive, and/or you are threatened by the fact you
framed me for a crime I didn’t commit (<3).
…
I would like to firmly apologize for certain statements I made towards you in
these e-mails. I should have been more considerate towards your sensitivity.
And I am truly sorry.
Schiff then discussed facts relating to another legal proceeding, and said “I would like to
make clear, I am not using this . . . thing to excuse whatever offensive statements I made
towards you[.]”
Two days later, on July 16, 2019, ASA#1 received another e-mail from Schiff, with
a subject line that included the name and case number of another case ASA#1 was
prosecuting. Schiff relayed information he had obtained about that case and recounted
3
some details of his own case. He also wrote that he had learned of ASA #1’s hometown 4,
which he described as a “prison cult town.” He added, “Because of how hot I think you
are, I was afraid to bring this up. But after recent events (you going . . . Crazy on me) I
think it’s time we talk about this.” Schiff returned to talking about the stalking case ASA#1
prosecuted against him and wrote:
When you make up stories about me, it offends me because I’m assuming
you have a boyfriend or fiancé, who is probably involved in this somehow.
And you need to continue the false narrative I’m a dangerous pervert[.]
Schiff discussed his own problems and offered to help ASA#1 with the case he had
previously referenced. He wrote that he wanted ASA#1 in his life and apologized for his
behavior because he “was still psychotic.” Nonetheless, Schiff wrote that he was “not
mentally ill” and that he needed “to get over” ASA#1, but was still attracted to her, calling
her “the hottest girl [he’d] ever seen.” Schiff described himself as ASA#1’s “biggest
fanboy.”
Schiff then described someone else he knew from ASA #1’s hometown. He
continued:
Anyway, I’m sure you’ll have me arrested and sent back to prison for writing
this, so I’ll stop here, but once again, I hope you’re doing okay.
There are certain individuals connected to [NAME OF FAMILY RELATED
TO PREVIOUS STALKING CASE] who I may be e-mailing soon, and I
may include you in those e-mails.
Therefore, I just want to once again clarify:
4
ASA#1 testified that at no point did she ever communicate her hometown to Schiff.
4
I am not unstable, nor am I a threat to you. To be honest, I have had a hard
time rationalizing that if I had stayed in school, we could’ve worked together,
but it is what it is, I can find someone else.
ASA#1’s Peace Order against Schiff and Subsequent Communications
The next day, July 17, 2019, ASA#1 obtained a peace order against Schiff. A
hearing was scheduled for the following week. After the peace order was issued, on the
evening of July 17, Schiff sent ASA#1 another e-mail. He said he wanted to discuss some
of the motions he had filed in his post-conviction case. He then wrote:
Otherwise, you wanna hear something crazy? Someone filed a peace order
against me today, hearing took almost three hours. I thought it might be you,
but I looked over the e-mails I sent you, and there were legal grounds to send
each one of them, I had no intention to alarm or annoy you, furthermore you
never told me to stop, so I just assumed you enjoyed my messages, you were
just too busy with work to respond. Thus, what kind of idiot judge would
give a T[emporary]P[rotective]O[rder] for that?
He then wrote:
Anyway, look, with all this weird stuff happening to me, I’ve been thinking
……. Any chance you wanna be my girlfriend?
I really feel a connection between you and I, and I could really use some
support against whatever psycho filed this crazy TPO.
Schiff added the details of his peace order hearing and stated that he was waiting to be
physically served with the order.5 He then stated, “If you’re too busy to reply……….
Maybe I’ll see you next Friday at my hearing?”
5
Schiff maintains in his brief to this Court that at the time he wrote this e-mail, he
had not yet been served. ASA#1 also testified that she “guess[ed]” that was the case.
However, we find no clear evidence in the record, nor do the parties direct us to any, that
shows definitively whether Schiff was served with the Peace Order before or after sending
the e-mail that evening.
5
On July 18, 2019, ASA#1’s co-worker, ASA#2, received an e-mail from Schiff, that
began “Yo [ASA#2], it’s Graham Schiff. So I’m currently legally barred from contacting
the most beautiful girl in the world, and I figured I’d hit you up.” In the e-mail, Schiff
discussed an organization through which he thought he might have recognized ASA#2.
Schiff added “Please answer, don’t play games with me [ASA#2], I’m trying to be nice
here.” In the post-script, Schiff wrote:
Did you actually read [ASA#1’s] “Peace Order” against me? I’m gonna be
civil here, but holy FUCK what a mentally unstable histrionic retard. She
could’ve just told me to stop contacting her, instead she concocted a story
she’s scared I’m gonna harm her. She even included extremely private
information I gave her about certain cases, which puts me in danger. Like, I
am just lost for words.
Upon receipt, ASA#2 forwarded the e-mail to ASA#1, writing “Another one.”
The peace order hearing was held on July 26, 2019. Schiff testified that he could
understand why the letters he had sent would cause ASA#1 concern. He admitted to having
looked her up on the internet, which he acknowledged was “freaky.”
ASA#1 never responded to any of Schiff’s communications. Initially, the
Montgomery County State’s Attorney’s Office decided not to take action against Schiff to
avoid exacerbating the situation. But the office decided to contact the police after July
2019, when Schiff’s letters became more numerous and contained “more concerning
information.” After consulting with the police, on September 26, 2019, the State filed a
criminal information in the Circuit Court for Montgomery County, charging Schiff with
stalking, failure to comply with a peace order, and harassment. A bench trial was scheduled
for March 2020, with the Honorable Gary Bair presiding.
6
In the meantime, Schiff wrote a four-page letter to Judge Salant, who had presided
over Schiff’s original stalking trial.6 In the letter, Schiff discussed at length his original
conviction and why it was illegal. He also wrote about some motions that Judge Salant
had not yet addressed and asked that Judge Salant dismiss his case “ASAP.” Schiff briefly
referenced the new stalking case against him, putting four hearts in parentheses after
ASA#1’s name. On the next page, ASA#1’s initials appeared inside a heart in the middle
of a sentence. On the final page of the letter, the last line before the post-script read:
“[ASA#1] makes me . . . cum in my pants.” Beside his signature, Schiff added another
heart with ASA#1’s full name written inside. The first post-script asked Judge Salant if he
was aware of another prosecutor that he’d heard was beautiful but doubted could be more
beautiful than ASA#1. Schiff’s third post-script asked that Judge Salant be put on Schiff’s
“new case with [ASA#1],” and then added three hearts with ASA#1’s initials.
Later, Schiff wrote a letter to Judge Bair primarily providing a backstory on his
interactions with ASA#1. Schiff wrote that one day, a friend had dropped him off on a
street in Bethesda, not far from where his parents live and where he was living at the time.
He then wrote about applying for a job at “Sunrise,” an assisted living facility located there.
When trying to connect to the Wi-Fi network, Schiff wrote that he noticed that one of the
available network names referenced a university and recalled that he’d discovered ASA#1
attended that university. Schiff ended this sentence with a heart with “[ASA#1’s initials]”
6
Again, we regret reprinting these communications in detail but the letters to Judges
Salant and Bair form part of one of Schiff’s claims of error.
7
written inside. Schiff then explained how in June 2019, he e-mailed ASA#1 about his
previous stalking case in an effort to get his convictions dropped. He wrote:
The following week, an unnamed source gave me a disturbing report:
Goddess had seen me that day [outside of a grocery store] . . and was telling
people including people outside the SAO (like [BOTH OF ASA#1’S
PARENTS’ FIRST NAMES], for example) that she believed I was there to
do something offensive to her.7
Schiff concluded that in light of all these events his current charges were illegal, laying out
additional reasons in the final five paragraphs of the letter. Schiff ended by writing, “Girls
who commit perjury turn me the fuck on.”
ASA#1 testified that until she saw the letter addressed to Judge Bair, she had
forgotten about a conversation she had had with her father about her concerns over the
situation with Schiff. She testified that the conversation had taken place inside her
apartment,8 after she had received either the first or second letter from Schiff at the end of
June 2019.
7
Indeed, ASA#1 testified that in early June of 2019, as she was driving in her car,
she recognized Schiff walking down the street near where she lived. At the time, she did
not believe he had seen her, and she remained in her car.
8
We presume ASA#1 was implying the conversation with her father had taken place
over the telephone, since she also testified that at the time of the conversation, she was the
only person in her apartment.
8
Trial on Schiff’s Stalking and Harassment of ASA#1
A jury trial was held May 24-25, 2021, the Honorable Sharon Burrell presiding.9
Schiff represented himself, did not testify, and did not present any witnesses in his defense.
Witnesses for the State included ASA#1, Officer Weber, Captain Dave McBain (who
conducted the investigation after the State’s Attorney’s Office informed the police of
Schiff’s repeated communications to ASA#1), and ASA#2. ASA#1 testified that the
communications from Schiff—as well as the trial itself—caused her “serious emotional
distress” and that she had been in therapy for several years as a result of Schiff’s
communications. At trial, ASA#1 testified that the situation had upended her life, causing
her anxiety and requiring her to adjust her living and security arrangements. The jury found
Schiff guilty of stalking and harassment. The court sentenced him to five years’
incarceration, with all but 707 days suspended for the stalking conviction, and 180 days,
concurrent, for the harassment conviction. Schiff was given credit for 707 days and placed
on a period of probation, a specific condition of which was not to contact ASA#1. This
timely appeal followed.
STANDARD OF REVIEW
“When a sufficiency challenge is made, the reviewing court is not to ‘ask itself
whether it believes that the evidence at the trial established guilt beyond a reasonable
doubt’; rather, the duty of the appellate court is only to determine ‘whether, after viewing
9
Previously, a bench trial before Judge Bair resulted in a conviction, however, Judge
Bair granted Schiff’s motion for a new trial and reset the case for a jury trial before a
different judge.
9
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.’” State v.
Albrecht, 336 Md. 475, 479 (1994) (quoting Jackson v. Virginia, 443 U.S. 307, 318–19
(1999) (emphasis in Jackson)). “Generally, if there are evidentiary facts sufficiently
supporting the inference made by the trial court, the appellate court defers to that fact-
finder instead of examining the record for additional facts upon which a conflicting
inference could have been made, and then conducting its own weighing of the conflicting
inferences to resolve independently any conflicts it perceives to exist.” State v. Smith, 374
Md. 527, 547 (2003). “Our concern, therefore, is not whether the verdict was in accord
with the weight of the evidence but rather, whether there was sufficient evidence produced
at trial ‘that either showed directly, or circumstantially, or supported a rational inference
of facts which could fairly convince a trier of fact of the defendant’s guilt of the offenses
charged beyond a reasonable doubt.’” Galloway v. State, 365 Md. 599, 649 (2001)
(quoting State v. Sowell, 353 Md. 713, 726 (1999)).
For constitutional claims, “our application of the law to the facts is de novo.”
Khalifa v. State, 382 Md. 400, 417 (2004).
I. THE EVIDENCE IS SUFFICIENT TO SUSTAIN THE STALKING AND
HARASSMENT CONVICTIONS.
Stalking
A. Parties’ Contentions
Schiff contends there was insufficient evidence to sustain his stalking conviction,
since (1) he did not engage in any threatening conduct; (2) he did not intend for his
10
communications to cause ASA#1 serious emotional distress; and (3) his communications
did not constitute a “malicious, persistent pattern of conduct showing continuity of
purpose.” In support of his first two contentions, Schiff asserts that his communications
were civil, complimentary of ASA#1, and did not contain any threats or suggestions of
violence. Further, he argues most of his correspondences were not directed to ASA#1 but
to others, and that he did not ask that his communications be relayed to ASA#1. Finally,
Schiff contends that the eight letters or e-mails sent over a near-two-year period—only
three of which were addressed to exclusively ASA#1—cannot be classified as “persistent.”
And besides, he argues, all of the communications discussed legal matters.
The State counters, first, that Schiff’s arguments that his communications do not
amount to threatening conduct and were “simply too few, far between, and varied” to
constitute a “course of conduct” for the purposes of stalking, are waived, because he did
not argue them with particularity in his motion for a judgment of acquittal. The State
concludes that the only arguments that Schiff preserved for appeal are that (1) he could not
have reasonably known his conduct would cause ASA#1 emotional distress because he
was never informed his communications were having that effect, and that (2) once he was
served with the Peace Order, he did not send any further communications to ASA#1.
The State asserts that even those preserved arguments are unavailing, since Schiff’s
communications after the Peace Order were made to persons directly connected to ASA#1,
and the jury could reasonably infer Schiff knew such persons would share the messages
with ASA#1. The State further avers that Schiff’s communications constitute a “malicious
course of conduct,” in that the five letters or e-mails Schiff sent in June and July 2019 alone
11
would constitute a persistent series of acts, and that Schiff’s obsession with ASA#1 was
the common thread running through all of his communications. Finally, the State argues
the evidence sufficiently shows that Schiff knew or reasonably should have known his
communications would cause ASA#1 emotional distress, because several of them
explicitly acknowledged that ASA#1 might have been offended or threatened by his
previous messages. Further, the content of the messages themselves—describing ASA#1
as a “State’s Attorney Barbie” with whom Schiff could “have his way with,” his knowledge
of ASA#1’s hometown, the location of her apartment, and a private conversation she had
had with her father in the apartment—are so unsettling that a reasonable person would be
aware of how distressing these revelations would be to ASA#1.
B. Analysis
1. Waiver
Rule 4-324(a) provides in part, “The defendant shall state with particularity all
reasons why the motion [for judgment of acquittal] should be granted.” Accordingly, an
appellant “is not entitled to appellate review of reasons stated for the first time on appeal.”
Starr v. State, 405 Md. 293, 302 (2008) (internal quotations and citations omitted). See also
Bates v. State, 127 Md. App. 678, 691 (1999) (“A defendant may not argue in the trial court
that the evidence was insufficient for one reason, then urge a different reason for the
insufficiency on appeal in challenging the denial of a motion for judgment of acquittal.”),
overruled on other grounds by Tate v. State, 176 Md. App. 365 (2007). Applying Rule 4-
324, we agree with the State that Schiff did not preserve his “course of conduct” argument.
He did not state with specificity this objection at the time of the motion for judgment.
12
But we conclude that his argument that his conduct was not threatening is preserved,
in addition to his argument that he did not intend to cause ASA#1 serious emotional
distress. However, “an appellant/petitioner is entitled to present the appellate court with ‘a
more detailed version of the [argument] advanced at trial,’” but this does not include
arguments that are not at least “reasonable offshoots” of the arguments presented. Starr,
405 Md. at 304 (quoting Sifrit v. State, 383 Md. 116, 136 (2004)) (emphasis added).
In Schiff’s oral motion for judgment of acquittal, he at least inferred his “not
threatening” argument as part of his insufficiency argument, albeit not in the same
framework he presents on appeal. In his oral motion, when arguing that his constitutional
rights to effective counsel and free speech were violated, Schiff asserted that he should not
have been punished for his speech,
[a]s long as the content itself does not reach criminal liability for something
like actually threatening someone. Or something that is a specific charge
for, for written or spoken speech, then, yes, absolutely. And I believe it
complies with the provision of the stalking law which protects against
authorized, required or protected by local, state or federal law.
We determine that the issue of whether Schiff’s conduct was threatening is at least a
“reasonable offshoot” or “a more detailed version” of the argument he asserted at trial.
Therefore, we will address it.
2. The Law
Section 3-802(c) of the Maryland Code, Criminal Law Article (“CR”) prohibits
stalking. Subsection (a) defines stalking as
a malicious course of conduct that includes approaching or pursuing
another where:
13
(1) the person intends to place or knows or reasonably should have
known the conduct would place another in reasonable fear:
(i) 1. of serious bodily injury;
2. of an assault in any degree;
3. of rape or sexual offense as defined by §§ 3-303
through 3-308 of this title or attempted rape or sexual
offense in any degree;
4. of false imprisonment; or
5. of death; or
(ii) that a third person likely will suffer any of the acts listed
in item (i) of this item; or
(2) the person intends to cause or knows or reasonably should have
known that the conduct would cause serious emotional distress to
another.
Md. Code Ann., CR § 3-802(a). Subsection (b) exempts conduct that is:
(1) performed to ensure compliance with a court order;
(2) performed to carry out a specific lawful commercial purpose; or
(3) authorized, required, or protected by local, State, or federal law.
Id. at (b). Section 3-801 defines a “course of conduct” as “a persistent pattern of conduct,
composed of a series of acts over time, that shows a continuity of purpose.” Id. § 3-801.
Threatening conduct
Schiff’s argument that he did not engage in any threatening conduct is misplaced.
While CR § 3-802(a)(1) requires that the conduct create a reasonable fear of some physical
harm, CR § 3-802(a)(2)—the subsection of the statute the jury was provided in Schiff’s
case contains no such requirement. It requires only that an accused know or should know
the malicious course of conduct will cause another person serious emotional distress. For
this same reason, Schiff’s assertion that Hackley v. State, 389 Md. 387 (2005) demonstrates
14
the required egregiousness of conduct for a stalking conviction, is incorrect. 10 There, the
Court of Appeals upheld Hackley’s stalking conviction after he left letters with express
death threats on the victim’s car on three occasions, and was observed driving in her
neighborhood, all within one month. Id. at 389-91. But the language of the stalking statute
at that time was akin to only the current subsection (a)(1), as it defined stalking as “a
malicious course of conduct that includes approaching or pursuing another person with
intent to place that person in reasonable fear: (i) Of serious bodily injury or death; or (ii)
That a third person likely will suffer serious bodily injury or death.” Hackley, 389 Md. at
392 (quoting Maryland Code, Art. 27, § 124 (1996 Repl. Vol., 2001 Supp.)) (emphasis
added). The statute was amended in 2016 to include the provision for causing serious
emotional distress. 2016 Md. Laws Ch 544 (S.B. 278); 2016 Md. Laws Ch. 545 (H.N. 155).
Thus, Hackley does not provide any guidance as to the threshold of conduct that constitutes
stalking under CR § 3-802(a)(2).
In fact, our search does not reveal any Maryland cases that analyze a stalking
conviction under CR § 3-802(a)(2). We conclude that the distress reasonably caused by
the malicious course of conduct in CR § 3-802(a)(2) need not result from express physical
threats—or even any type of express threat. Although we find this to be unambiguous from
the statute’s plain language, this concept is borne out in the statutory history just discussed.
Specifically, we mean that the statute previously covered only conduct that evinced an
intent to cause another fear of physical harm, and thereafter was amended to cover
10
To our knowledge, Hackley is the only reported Maryland case that analyzes a
sufficiency of the evidence claim for a stalking conviction.
15
additional conduct that would reasonably cause severe emotional distress. Although we
believe a rational factfinder could read Schiff’s communications to contain, at the very
least, implicit threats of unwanted future contact with ASA#1 (indeed, ASA#1 testified that
she felt the need to leave her home and stay with someone else at one point after receiving
the letters and to update her security), we do not believe the absence of threats would
necessarily defeat a stalking conviction under CR § 3-802(a)(2).
Instead, we hold that the critical metric in CR § 3-802(a)(2) is the objective
knowledge that the perpetrator’s conduct would cause another person severe emotional
distress. We are further persuaded by this interpretation after reviewing other jurisdictions’
similarly worded statutes that do not require any type of express threat or assaultive
conduct to satisfy an “emotional distress” element.
For example, Florida’s stalking statute prohibits “engag[ing] in a course of conduct
directed at a specific person which causes substantial emotional distress to that person and
serves no legitimate purpose.” Fla. Stat. Ann. § 784.048(1)(a). The District Court of
Appeals for the Fourth District of Florida has focused its analysis under the statute on
whether “a reasonable person in the same position as the victim” would “be put in distress
when subjected to such conduct,” rather than on whether the conduct itself contained
express threats. DiTanna v. Edwards, 323 So. 3d 194, 202–03 (Fla. Dist. Ct. App. 2021).
In DiTanna v. Edwards, the court held the statute’s objective emotional distress prong was
satisfied where the appellant had advised a neighbor “to stay away and to keep her son
away from appellee, as well as contact[ed] other friends to warn them of listening devices,
suspected criminal conduct of appellee, and suspicions of misbehavior at appellee’s
16
workplace.” Id. Although the DiTanna appellant’s conduct may arguably have been more
defamatory to appellee than Schiff’s speech was to ASA#1, the DiTanna appellant’s
conduct contained no threats of violence or assaultive conduct. Id. at 203.
Another example is Michigan’s stalking statute, which prohibits “harassment,”
defined as:
conduct directed toward a victim that includes, but is not limited to, repeated
or continuing unconsented contact that would cause a reasonable individual
to suffer emotional distress and that actually causes the victim to suffer
emotional distress. Harassment does not include constitutionally protected
activity or conduct that serves a legitimate purpose.
Mich. Comp. Laws Ann. § 750.411h. In Hayford v. Hayford, the Court of Appeals of
Michigan held that it was sufficient to sustain the trial court’s finding that a son
experienced—and a reasonable person also would have experienced—significant
emotional distress, where the son testified that his father’s behavior “caused him to feel
stressed, embarrassed, and harassed,” and where his father’s actions “penetrated his school,
work, and family life and affected other members of his family, which caused further
distress.” 279 Mich. App. 324, 332 (2008). The court explained that the “emotional
distress” portion of the statute “does not require that the petitioner feel afraid, nor does it
mention fear.” Id. at 331. We believe this principle is analogous to our conclusion that
conduct constituting stalking under CR § 3-802(a)(2) need not be threatening. Since
serious emotional distress in any of its potential forms (for example, severe embarrassment
or stress), could sustain a stalking conviction under CR § 3-802(a)(2), then the conduct that
constitutes stalking need not exclusively be the type that causes fear.
17
Intent to cause serious emotional distress
Schiff’s argument that the intent element of CR § 3-802(a)(2) is not satisfied
because he did not intend for his communications to cause ASA#1 serious emotional
distress is unavailing. To begin, we point out that the inquiry under CR § 3-802(a)(2) does
not end with Schiff’s subjective intentions as he argues. Regardless what the actor actually
intends to do, if a reasonable person would know his or her conduct would cause another
person serious emotional distress, then the intent element of CR § 3-802(a)(2) is satisfied.
We hold that a rational factfinder could have inferred that Schiff knew his
communications were causing ASA#1 serious emotional distress, based on several
statements in his letters that acknowledged that ASA#1 might feel threatened or scared by
him and apologized for his communications:
July 14 e-mail
• “I’m assuming you considered some[]thing(s) I wrote in those e-
mails to be offensive, and/or you are threatened by the fact that
you framed me for a crime I didn’t commit (<3).”
• “I would like to firmly apologize for certain statements I made
towards you in these e-mails. I should have been more considerate
towards your sensitivity.”
• “I would like to make clear, I am not using this . . . thing to excuse
whatever offensive statements I made towards you.”
July 16 e-mail
• “I am sorry if I scared and/or offended you with something I
said[.]”
• “I want to clarify why I spoke to you that way. The last time I saw
you (3/6/18), I was still psychotic . . . .”
18
• “I stupidly said ‘Oh, I need to go e-mail [ASA#1], and tell her how
hot I think she is.’ I was wrong to do that, and I’m sorry.”
• “Anyway, I’m sure you’ll have me arrested and sent back to prison
for writing this . . . .”
• “Therefore, I just want to once again clarify: I am not unstable, nor
am I a threat to you.”
• “P.S.: Just remember, it’s not harassment unless you tell me to
stop.”
Schiff’s frequent need to “remind” ASA#1 that he was not a threat to her and to apologize
for things he had said could lead a rational juror to infer that Schiff realized his
communication had led ASA#1 to consider him a threat, and yet he continued to contact
her.
We also conclude that a rational factfinder could have found the objective standard
of CR § 3-802(a)(2) satisfied—that a reasonable person in Schiff’s position would have
known his communications would cause ASA#1 serious emotional distress. We disagree
with Schiff’s characterization of his communications as mostly complimentary toward
ASA#1. A reasonable person could have found his comments alarming. For example,
Schiff accused ASA#1 of framing him for a crime he didn’t commit, alleged she might
have been involved in a criminal conspiracy against him, and accused her of making
slanderous statements about him. Further, Schiff called ASA#1 “Crazy,” stated she had
“an attitude problem,” and called ASA#1 a “mentally unstable histrionic retard” 11 to her
colleague, ASA#2. Viewing all of these statements (and others) together, could lead a trier
11
We in no way condone any of Schiff’s language and only repeat it to underscore
the inappropriateness of his language toward ASA#1.
19
of fact to reasonably conclude that they would cause ASA#1 serious emotional distress.
Schiff’s supposedly complimentary statements—calling ASA#1 a “goddess” and the “most
beautiful girl in the world,” and comparing her to a “runway model”— are designed, one
could reasonably infer, to cause her more emotional distress, given Schiff’s obsession with
ASA#1. We fail to see how such unsolicited comments could be considered
“complimentary” as Schiff suggests.
As for the second part of Schiff’s argument, we also conclude that a rational
factfinder could infer that Schiff should have known that his communications would be
shared with ASA#1 because they were addressed to persons who regularly encountered her
at work, such as ASA#2. The communications were also sent to people involved in the
prosecution against Schiff, specifically, Officer Weber, and, again, ASA#2.12 The plain
language of CR § 3-802 does not require that communication or contact be made directly
to the person being stalked.13 A juror could reasonably infer that the two communications
For reasons that will be discussed below, we decline to rely on Schiff’s letters to
12
Judges Salant and Bair to uphold Schiff’s stalking (or harassment) conviction.
13
The rationale of the Supreme Court of Montana in a case cited in the State’s brief
is compelling. That court rejected a similar contention by a defendant under a stalking
statute, which, like CR § 3-802, contained no express requirement that the communication
be made directly to the victim. The court explained:
Communicating through a third party whom the stalker knows is likely to
relay the fact of contact, and hence produce the desired effect of harassing or
intimidating the victim, constitutes an “action, device or method” of stalking.
To hold otherwise would defeat the clear purpose of the stalking statute by
permitting a stalker to intimidate and harass his intended victim simply by
communicating his threats to third parties who (the stalker knows and
expects) will inform the victim.
20
not addressed to ASA#1 were nonetheless part of a course of conduct in which Schiff was
“pursuing” ASA#1. CR § 3-802(a). This was particularly evident when Schiff stated in his
e-mail to ASA#2 that he was writing to her because he was prohibited from contacting
ASA#1.14 But, even if the communications not directly addressed to ASA#1 were set aside,
we cannot say that it would be irrational for a factfinder to conclude that Schiff should have
known his e-mails to ASA#1 on June 27, July 14, July 16, and July 17 of 2019, would
cause ASA#1 serious emotional distress. Within those e-mails, Schiff made clear that he
had had discovered ASA#1’s hometown; he said he had heard she was making supposedly
slanderous statements about him to others; he expressed that he had thought about marrying
and starting a family with ASA#1; he asked her to be his girlfriend; and he acknowledged
that the last time she had seen him, he “was still psychotic” and had “delusions” about her.
A rational juror could infer that Schiff should have known sharing these desires and his
knowledge of ASA#1’s personal details, combined with ASA#1’s role as a prosecutor
against Schiff, and that she had not responded to any of his communications, would cause
ASA#1 serious emotional distress.
State v. McCarthy, 980 P.2d 629, 632 (Mont. 1999) (internal quotations and citation
omitted).
14
Specifically, he wrote: “So I’m currently legally barred from contacting the most
beautiful girl in the world, and I figured I’d hit you up.”
21
Course of conduct
Although this argument was not preserved, we nonetheless address it given the
dearth of case law that expressly analyzes what course of conduct constitutes stalking or
harassment. Moreover, this analysis would not change the outcome of this appeal even if
preserved, because we would hold that a rational factfinder could have found Schiff’s
communications constituted a “malicious persistent pattern of conduct.”
Based on our research, there are very few cases that give even a passing reference
to CR § 3-801 or its predecessors, Maryland Code, Art. 27, §§ 123(a), and 124 (a)(2) (1996
Repl. Vol., 2001 Supp.) (regarding stalking and harassment offenses respectively, from
which no substantive changes were made). At Schiff’s request we turn again to Hackley.
There, Hackley’s four contacts with the victim—three letters and a drive-by of her home
within a one-month period—were deemed a “malicious course of conduct” under the
statute. 389 Md. at 389–91. We also review Galloway v. State, where the Court of Appeals
upheld Galloway’s harassment conviction where he sent over 130 letters to his kidnapping
and stalking victims. 365 Md. 599, 605–06 (2001). Galloway does not expressly analyze
the “course of conduct” requirement. And neither Galloway nor Hackley establishes a
minimum number of contacts necessary for a stalking or harassment conviction.
We decline to read into the statutes a minimum number of contacts necessary to
sustain a stalking or harassment conviction when the legislature has not chosen to do so
and when we can find no precedent for doing so. Further, we decline Schiff’s request to
read into the statute a minimum number of contacts because the words used in the statute,
“persistent,” “pattern,” and “series” have commonly understood meanings and thus are
22
capable of being interpreted and applied by the trier of fact. We note that a similar
contention was addressed by the Supreme Court of Montana in McCarthy, where the
appellant claimed his two communications were not sufficient for “repeatedly” harassing
and intimidating the victim under the statute. The court opined:
We disagree that two unwanted attempts at contact with the victim is legally
insufficient to support a conviction for stalking. As we stated
in Martel, “Words such as ‘repeatedly,’ ‘harassing,’ and ‘intimidating’ have
commonly understood meanings. ‘Repeatedly’ means ‘more than once.’”
McCarthy, 980 P.2d at 632 (quoting State v. Martel, 902 P.2d 14, 19 (Mont. 1995)).
Further, were we to look to Hackley for comparison, the quantity of contacts—three
letters and one drive-by in one month—are not so different from Schiff’s case. Setting
aside the communications Schiff did not send directly to ASA#1, he sent four e-mails
directly to ASA#1 within a two-month period. A rational factfinder could find this to be
“a persistent pattern of conduct, composed of a series of acts over time.” CR § 3-801. A
rational trier of fact could find those communications demonstrated “a continuity of
purpose,” id., in that they all concerned, to some degree, Schiff’s obsession with ASA#1.
In sum, we hold that a rational factfinder, “after viewing the evidence in the light
most favorable to the prosecution . . . could have found the essential elements” of stalking
beyond a reasonable doubt. Albrecht, 336 Md. at 479.
Harassment
A. Parties’ Contentions
Schiff asserts none of the elements of the harassment statute could have been found
beyond a reasonable doubt in this case. First, he contends that the State failed to prove
23
that he acted with the requisite intent “to harm, alarm, or annoy” ASA#1. Second, Schiff
argues that he “did not ignore a request to stop communicating with” ASA#1, since he did
not address or direct that any communications be delivered to ASA#1 after he received the
Peace Order. Finally, Schiff maintains that each communication he sent after he received
the Peace Order had a legal purpose, thereby taking them outside of conduct that constitutes
harassment.
The State counters that some of Schiff’s arguments are unpreserved. The State says
that during Schiff’s motion for judgment of acquittal, he raised only two arguments
regarding the harassment charge: (1) that he did not contact ASA#1 directly after receiving
the Peace Order, and (2) his conduct was protected by the First Amendment. 15 The State
counters Schiff’s “no direct contact” argument by, first, asserting that a factfinder could
have found Schiff ignored a reasonable request to stop communicating with ASA#1, since
he sent ASA#1 an e-mail the evening of the day she obtained the Peace Order against him.
A rational juror could have not believed Schiff’s testimony when he claimed not to know
who obtained the Peace Order against him. Second, the State argues, a reasonable
factfinder could infer that Schiff was merely seeking to evade the Peace Order by sending
messages to ASA#1’s colleague and two judges, knowing they would relay the messages
to her.
For the sake of completeness, the State addresses what it contends are Schiff’s
unpreserved arguments. Here, the State argues that merely because parts of Schiff’s letters
We reserve discussion of Schiff’s First Amendment argument for the final section
15
of this opinion, as both he and State address this argument separately.
24
relate to pending legal cases, that “does not isolate everything else within the letters from
scrutiny.” Finally, the State asserts that determining whether Schiff acted with the requisite
intent “to harass, alarm or annoy” ASA#1 is akin to determining whether he knew his
conduct would cause her serious emotional distress. Consequently, the State reiterates the
argument it made regarding stalking, namely, that the letters Schiff sent ASA#1 after she
obtained the Peace Order were threatening because they evinced an intent to continue
harassing her since he was clearly aware of how distressing the letters were to ASA#1.
B. Analysis
1. Waiver
We agree with the State’s waiver argument: the only specific arguments Schiff
raised in his motion for judgment of acquittal relating to harassment are: 1) that he did not
contact ASA#1 directly after he was given reasonable warning to stop, and 2) that his
communications were protected by the First Amendment. However, because there is a
dearth of reported opinions on the issues Schiff raises in this appeal, we will analyze
Schiff’s unpreserved arguments regarding harassment.
2. The Law
Criminal Law § 3-803(a) prohibits harassment. There, harassment is defined as:
“follow[ing] another in or about a public place or maliciously engag[ing] 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.
25
Reasonable warning
We begin by recognizing the “reasonable warning” requirement in the harassment
statute. The parties do not dispute that the Peace Order constituted such a warning.
Therefore, for the purposes of potential harassment, we shall consider only those
communications that Schiff sent after he was aware of the contents of the Peace Order.
This leads us to the one issue that is preserved: whether the communications Schiff sent—
after the Peace Order was in place—ignored that warning.
First, we agree with the State that a rational factfinder could have inferred that
Schiff sent the e-mail to ASA#1 the evening of July 17 after he was aware it was ASA#1
who had obtained the Peace Order against him. In that e-mail, Schiff explained that he had
“thought it might be” from ASA#1, but then reasoned the Peace Order could not possibly
have come from her, since all his e-mails to her served a legal purpose. Then he stated that
“maybe” he would see her at the Peace Order hearing.
Viewing the evidence in the light most favorable to the prosecution, we conclude
that a reasonable juror might have found Schiff’s explanation to be defensive, his reference
to seeing ASA#1 at the hearing coy, and his very e-mail to ASA#1 on the ‘mystery’ Peace
Order to be beyond the possibility of coincidence—all indicative of Schiff’s knowledge
the Peace Order had been obtained by ASA#1. Thus, a factfinder could have inferred, at
the very least, that Schiff had reason to know at the time of sending the July 17 e-mail that
ASA#1 had taken steps to stop him from sending her any further communications. And
since this Court has said that “[a] reasonable warning is one in which the defendant knows
or has reason to know that his conduct is unwanted and is warned to stop,” Pall v. State,
26
117 Md. App. 242, 248 (1997), the factfinder could have inferred that Schiff’s notice of
the Peace Order, combined with his apparent knowledge it was ASA#1 who had obtained
it, constituted Schiff’s receipt of a “reasonable warning” prior to his July 17 e-mail to
ASA#1.
Second, a rational factfinder also could infer that Schiff’s subsequent
communication to ASA ASA#2—one of ASA#1’s colleagues, and a person who Schiff
included on a previous communication to ASA#1—ignored the reasonable warning he had
received to stop such conduct. As we have observed, the e-mail begins with Schiff all but
admitting that he was writing to ASA#2 since he was barred from contacting ASA#1. The
most impactful part of the e-mail is the post-script calling ASA#1 a “mentally unstable
histrionic retard.” A rational trier of fact could have reasonably found that this e-mail had
no purpose other than to have ASA#1’s co-worker, ASA#2, pass on Schiff’s message to
ASA#1 and avoid the reasonable warning provided by the Peace Order. Consequently, we
hold that a rational factfinder could have found beyond a reasonable doubt that Schiff
ignored the “reasonable warning” element of the statute.16
Without legal purpose
Next, Schiff’s contention that his communications to ASA#1 and ASA#2 cannot
constitute harassment because each letter or e-mail contained some commentary on a legal
matter is unavailing. Although Schiff did not specifically raise this point in his motion for
16
For reasons we discuss under the “Without legal purpose” heading below, we
decline to categorize Schiff’s subsequent communications to Judges Salant and Bair to be
in violation of the reasonable warning.
27
judgment of acquittal, we nonetheless analyze these communications because they relate
to the preserved argument just discussed—that the challenged communications Schiff sent
after receiving the Peace Order were not in violation of a reasonable warning he received.
We agree with the State that merely because a piece of correspondence serves some
legal purpose does not isolate all other parts of the correspondence from scrutiny. We see
no reason why a factfinder could not separate out parts of a communication unrelated to a
legal purpose and find those to be harassing. Thus, language from Schiff’s July 17 e-mail
where he asks ASA#1 to be his girlfriend, and language from his July 18 e-mail to ASA
ASA#2 where he calls ASA#1 a “mentally unstable histrionic retard,” are not so related to
a legal purpose that they shield Schiff from scrutiny for harassment. Perhaps more to the
point, as we view them, neither of those e-mails serve a clear “legal purpose” to begin with.
Although they reference pending legal matters, they do not ask for any formal legal action,
legal advice, or seek to start some legal process.17
But we have difficulty extending this same analysis to Schiff’s letters to Judges
Salant and Bair. Distinct from the communication to ASA#2, the judges do not work
directly with ASA#1, such that it could be automatically assumed that they would share
these communications with ASA#1. And we conclude, notwithstanding Schiff’s
references to his feelings for ASA#1 in both communications, and the fact that both letters
are undoubtedly prohibited ex parte communications, that both letters primarily relate to
17
See, e.g., Borkowski v. Balt. Cnty., Md., 492 F. Supp. 3d 454, 476 (D. Md. 2020)
(holding the plaintiff’s repeated filings of charges was not “without a legal purpose” under
§ 3-803 and thus was not harassment).
28
legal matters, pending cases and motions Schiff wanted each judge to act upon. For
example, in Schiff’s letter to Judge Bair—which has many more references to ASA#1—
Schiff’s discussion of ASA#1 is ostensibly for the purpose of explaining his behavior and
demonstrating why his actions did not amount to stalking and harassment charges. And in
his letter to Judge Salant, Schiff asked the judge to dismiss his pending case. We hold that
the majority of both letters’ references to ASA#1 were for a broadly legal purpose.
We acknowledge the inappropriateness of many of Schiff’s references and the
harmful effect they likely had on ASA#1 upon learning of them. For example, in Schiff’s
letter to Judge Salant, Schiff included hearts after ASA#1’s name, referred to her as a
“goddess,” said that “love is painful,” referring to the fact that ASA#1 refused to
communicate with Schiff, and concluded by inappropriately referencing his sexual
attraction to ASA #1. And in Schiff’s letter to Judge Bair, Schiff repeatedly referred to
ASA#1 as his “goddess,” and said, “girls who commit perjury turn me the fuck on,” a clear
reference to ASA#1. Nonetheless, we decline to hold that communication (even when
distasteful and inappropriate) about the victim to persons sufficiently removed from the
victim will constitute harassment, because doing so could violate the First Amendment.18
18
See, for example, DiTanna v. Edwards, 323 So. 3d 194, 203 (Fla. Dist. Ct. App.
2021), where the District Court of Appeals for the Fourth District of Florida held that an
injunction’s terms that “prohibit [appellant’s] contact with third parties about appellee,”
even after appellee was found to have been stalking appellant, constituted a prior restraint
of speech in violation of the First Amendment.
Although we recognize that this case does not involve a “prior restraint,” which are
the “most serious and the least tolerable infringement on First Amendment rights,” Neb.
Press Ass'n v. Stuart, 427 U.S. 539, 559 (1976), there is commonality between DiTanna
and this appeal in that the prior restraint in DiTanna applied to future communications on
29
In conclusion, Schiff’s July 17 e-mail to ASA#1 and the July 18 e-mail to ASA#1’s
colleague ASA#2, were sufficiently without legal purpose to constitute potential
harassment under CR § 3-803(a)(3). We do not conclude that the letters Schiff sent to the
judges were harassing because they were sufficiently removed from ASA#1 and although
inappropriate, touched on legitimate legal issues which could be covered by the First
Amendment.
Intent to harass, alarm or annoy
Although this argument was unpreserved, we nonetheless conclude that a rational
factfinder could likely have inferred Schiff sent the July 17 and 18 communications to
ASA#1 and ASA#2 with the “intent to harass, alarm, or annoy” ASA#1. Schiff asserts that
Galloway “strongly supports” his position that the evidence is insufficient to show Schiff
had the requisite intent. He points out that Galloway’s intent to harass the victim there was
readily inferred from the volume of communications (130 letters), previous incidents of
Galloway stalking and kidnapping the victim, “the implicitly threatening content of the
letters,” and Galloway’s “persistence in sending the letters after repeated requests to stop.”
the basis of nothing more than that they were “about” the appellee. Having concluded that
Schiff’s letters to Judges Salant and Bair were not made in ignorance or violation of the
reasonable warning Schiff received (i.e., with the intent that the content be passed on to the
victim), the only remaining ground on which to find them problematic would be that they
make distasteful comments about ASA#1. Such a prohibition begins to look less like
punishment for speech integral to criminal conduct and more like a content-based
restriction that we doubt would survive strict scrutiny. See People v. Relerford, 104 N.E.3d
341, 350 (Ill. 2017) (holding a statutory “proscription against ‘communicat[ions] to or
about’ a person that negligently would cause a reasonable person to suffer emotional
distress . . . must be considered a content-based restriction because it cannot be justified
without reference to the content of the prohibited communications”).
30
Schiff contrasts those factors to his case, asserting he did not make any threatening
communications, nor did he ignore any request to stop communicating with ASA#1.
For the reasons already explained, we disagree with both contentions. More
germane to us in Galloway is that the Court of Appeals recognized that
[a]lthough the threat may not have been explicit, and even considering that
some of the letters began with such statements as “[n]othing in this letter is
meant to be a threat,” a threat reasonably may be inferred considering all of
the circumstances presented and the other language in the letters. . . . As the
Court of Special Appeals stated, “[a] person of common intelligence would
have no trouble understanding that frequent written communication by a
convicted felon to the home of a person whom he previously kidnapped and
stalked, will seriously annoy or alarm the recipient.”
365 Md. at 650–51 (quoting Galloway v. State, 130 Md. App. 89, 100 (2000)). Drawing
from these principles, we conclude it is of no matter that Schiff asserted in his July 17 e-
mail to ASA#1 that each of his communications to her had a legal purpose, and that he had
no intent to alarm or annoy her. Nor does it help Schiff in any way that in his letter to
ASA#2 he claimed ASA#1’s alleged fears of him are “concocted,” and that “she could
have just told me to stop.” Schiff’s mere assurances that he was doing nothing wrong are
meaningless in light of the fact that he knew, or should have known, that the sum of his
communications was causing ASA#1 severe emotional distress.
Also, similar to Galloway, a rational factfinder could infer Schiff’s intent to alarm
or annoy ASA#1 from his decision to continue writing her, and then ASA#2, regarding his
‘situation’ with ASA#1, even after he received a reasonable warning to stop. At that point,
a factfinder could infer that Schiff was aware that his communications about his feelings
for ASA#1 were causing her serious distress, and that she was informed when
31
communications about her were received by those with whom she worked closely. Finally,
it could be inferred that Schiff should have been aware that given the way he became
acquainted with ASA#1—she prosecuted a case against him—such communications to her
and about her to close colleagues would be unwanted and unsettling. In sum, the evidence
supports rational inferences, such as these, “which could fairly convince a trier of fact” that
Schiff acted with the intent to harass, alarm, or annoy ASA#1 even after receiving the
Peace Order. Galloway, 365 Md. at 649 (2001).
Holding each of Schiff’s arguments without merit, we affirm the harassment
conviction.
II. SCHIFF’S CONDUCT WAS NOT PROTECTED BY THE FIRST
AMENDMENT.
A. Parties’ Contentions
Schiff asserts that under the First Amendment, “individuals are permitted . . . to
express ideas that are offensive, and against mainstream conventions and opinions.” It
follows, he contends, “that it was within his First Amendment right to express his attraction
and desire for [ASA#1].” He adds, once more, that his communications were not
threatening. The State counters that the First Amendment permits restrictions on “speech
integral to criminal conduct,” and that harassment and stalking fall into this category,
because “both are forms of criminal conduct that can be accomplished through the use of
speech.”
32
B. Analysis
The First Amendment to the United States Constitution, applicable to the States
through the Fourteenth Amendment, prohibits laws “abridging the freedom of speech.”
U.S. CONST. amend. I; Polk v. State, 378 Md. 1, 8–9 (2003) (citing Eanes v. State, 318 Md.
436, 445 (1990)). Even so, “it is undisputed that ‘the First and Fourteenth Amendments
have never been thought to give absolute protection to every individual to speak whenever
or wherever he [or she] pleases, or to use any form of address in any circumstances that he
[or she] chooses.’” Polk, 378 Md. at 9 (quoting Cohen v. California, 403 U.S. 15, 19
(1971)) (alterations in Polk). As the State points out, “speech integral to criminal conduct”
is one such area that is not protected. United States v. Stevens, 559 U.S. 460, 468 (2010).
Indeed, this Court has long recognized the same:
We think it plain that it is not an abridgment of the constitutional right of free
speech to make a course of conduct illegal merely because the conduct was
in part initiated, evidenced, or carried out by means of language. It is the
substance rather than the form of communication to which the First
Amendment protection attaches, and regulation of the form is constitutional
where it arises from a legitimate State interest and not for the sole purpose of
censoring the underlying thought or idea.
The State may, therefore, prevent and punish some classes of speech, among
which are ‘the lewd and obscene, the profane, the libelous, and the insulting
or fighting’ words-those which by their very utterance inflict injury or tend
to incite an immediate breach of the peace (since) such utterances are no
essential part of any exposition of ideas, and are of such slight social value
as a step to truth that any benefit that may be derived from them is clearly
outweighed by the social interest in order and morality.[’]
And as we recognized in Lynch v. State, [2 Md. App. 546, 557 (1967] the
resort to epithets or personal abuse is not in any sense communication of
information or opinion safeguarded by the Constitution.
Luthardt v. State, 6 Md. App. 251, 257–58 (1969) (internal citations omitted) (cleaned up).
33
To the extent we have concluded that there was sufficient evidence before the trial
court to find that Schiff’s conduct constituted stalking and harassment under CR §§ 3-802
and 3-803 respectively, those communications constitute speech integral to criminal
conduct. Because Schiff has raised neither a facial nor an as-applied19 challenge to the
statutes themselves, our analysis on this issue need not go any further. 20 Schiff’s
challenged communications—perhaps with the exception of his letters to Judges Salant and
Bair, which we do not include in our bases for affirming the decisions below—are not
protected under the First Amendment.
Accordingly, we do not disturb either of Schiff’s convictions and affirm the
judgment of the circuit court.
19
Although the State infers Schiff “appears to challenge the laws as applied to him,”
we believe this gives him too much credit. Schiff does not refer even once to either the
stalking or harassment statutes in the section of his brief devoted to his First Amendment
argument. His subheading for this section reads: “The evidence was insufficient to sustain
the convictions because the correspondence that formed the basis of the stalking and
harassment convictions were based on protected speech.” We note that were Schiff making
an as-applied challenge to either criminal statute, he would not be arguing that the evidence
was insufficient to convict him; instead, he would be arguing that in the event the evidence
was sufficient to render his (protected) conduct criminal under the statutes, those statutes
must be unconstitutional.
20
We observe that Schiff argued in his motion for judgment of acquittal that the
stalking statute was “unconstitutionally vague.” But that argument is not even remotely
raised in this appeal, and we do not address it. Moosavi v. State, 355 Md. 651, 660 (1999)
(“[I]f a point germane to the appeal is not adequately raised in a party's brief, the [appellate]
court may, and ordinarily should, decline to address it.”). While we have the discretion to
address such an argument, id. at 661, we decline to do so, noting that the Court of Appeals
rejected a facial challenge on grounds of vagueness and overbreadth to the similarly
worded (but substantially indistinct) former harassment statute, Maryland Code, Art. 27,
§123. Galloway, 365 Md. at 638–39.
34
JUDGMENT OF THE CIRCUIT COURT
FOR MONTGOMERY COUNTY
AFFIRMED. APPELLANT TO PAY THE
COSTS.
35