Moosavi v. State ( 1999 )

RODOWSKY, Judge,

dissenting.

I join in Parts 1 and II of the Court’s opinion. I write separately, however, because I respectfully disagree with the holding in Part III. In my opinion Article 27, § 9 is not the exclusive statute under which Moosavi could properly be charged.

The words of Article 27, § iolA embrace Moosavi’s conduct. Focusing on the words of the statute that are relevant to the State’s theory of the case and stripping the statute of language that describes other ways in which the crime can be committed, § 151A reads:

“A person is guilty of a misdemeanor if, knowing the statement ... to be false, he ... transmits to another ... with intent that it be acted upon, a statement ... concerning the ... possible detonation of a bomb.... ”

Moosavi certainly made a statement concerning the possible detonation of a bomb. A statement is “1: the act or process of stating, reciting, or presenting orally or on paper” and “[2]b: a single declaration or remark.” Webster’s Third New International Dictionary 2229 (1976). Under the evidence most favorable to the State, Moosavi’s statement was knowingly false because he had no intention actually to bomb the Bank. Further, Moosavi intended that the false statement be acted upon. The supervisor of the credit card division of the Bank, Rona Bowers, testified that Moosavi stated to her “that he would blow up Chevy Chase Bank if we didn’t do ... what he wanted done.” The jury could find that the statement was intended to have the effect of forcing the Bank to credit Moosavi’s account to offset the $30 charge.

The majority concludes that a false statement concerning the detonation of a bomb that is a threat is not embraced within the prohibition of § 151A because a threat to “[ejxplode a destructive explosive device ... in, on, or under a structure” is expressly prohibited by § 9. Moosavi, 355 Md. at 665, 736 A.2d at 292. The issue before us, however, is not whether Moosavi could have been charged under § 9, but whether he was properly charged under § 151A. It does not follow that because one statute makes certain conduct criminal that another statute may not also make the same conduct criminal. Our jurisprudence is replete with illustrations of circumstances where the same conduct can constitute two crimes. See, e.g., Miles v. State, 349 Md. 215, 219-21, 707 A.2d 841, 843-45 (1998) (listing cases that address, inter alia, the merger of offenses for sentencing purposes).

As part of its analysis the majority has construed Article 27, § 9 from the intent standpoint. The Court says: “Section 9 does not look to the truth or falsity of the statement; rather, it punishes statements which constitute communicated intentions to do harm.” Moosavi, 355 Md. at 664, 736 A.2d at 292. Under the majority’s construction of § 9, § 151A, on the facts of this case, simply creates a crime that has at least two elements, falsity of the statement and the intent that it be acted upon, that are in addition to the required elements of § 9.

Further, the legislative history does not, in my view, demonstrate a legislative intent to exclude from the scope of § 151A a threat to explode a bomb which the maker has no intention of carrying out. Section 151A antedates § 9 by some twenty-six years, the former having been enacted by Chapter 395 of the Acts of 1963 and the latter by Chapter 494 of the Acts of 1989. Section 151A, since its inception, has addressed false statements about the detonation of a bomb. No provision in § 151A defines “another or others” to whom the false statement is transmitted as excluding the owner or occupant of the building or other place where a bomb is falsely stated to be detonated. Further, the majority opinion, in footnote 5, rejects the construction by the Court of Special Appeals of § 151A and concludes, as do I, that § 151A does not require that the false statement originate with a third person. In other words, the false statement may originate with the maker of the statement.

Thus, during the first twenty-six years of its existence, it would seem that the accused-originating scenarios to which § 151A might apply could fall into two general categories. First, the accused says, in effect, “I am going to detonate a bomb in your building,” without any intent on the part of the accused to do so. Second, the accused says that a third party, either identified or unidentified, plans to detonate a bomb in the building of the person to whom the statement is transmitted and the accused knows that either there is no such third person or that the third person does not intend to do that act. Under the majority’s construction, § 151A has never applied at any time to the first set of circumstances (“I am going to detonate a bomb in your building”) because that is a threat. I find nothing in the language of § I51A that can support excluding that false threat from the false “statement” referred to in § 151A. Inasmuch as our jurisprudence is replete with instances in which the same conduct constitutes a crime under two statutes, I find unconvincing the argument that, because the later enacted statute expressly addressed bomb threats, the earlier enacted statute should be construed as excluding bomb threats.¹

There is no legislative history available on the original enactment of § 151A by Chapter 395 of the Acts of 1963. There is some legislative history available on Chapter 494 of the Acts of 1989, by which what is now § 9 was first enacted. As the majority points out, “the Maryland Chiefs of Police Association, the Baltimore City Police Department and the Maryland Sheriffs’ Association had urged the General Assembly to enact § 9 because they often found that, in the investigation of arson, ‘the crime of arson was committed after the occupants of the house were threatened with having their house burned down.’ (Emphasis added).” Moosavi, 355 Md. at 665, 736 A.2d at 292. The bill enacting present § 9 was amended in the course of passage to add a proscription against threats to bomb. The majority infers from the 1989 legislative history that threats to bomb were being addressed for the first time. To me it is equally inferable that threats to bomb were added in 1989 because the police were encountering situations in which threats to burn were actually consummated, and the same could be the situation with respect to threats to bomb, but § 151A could not be the basis of prosecution where the threat to bomb was a genuine threat that the communicator intended to carry out. It is consistent with the known facts that the purpose of adding threats to bomb to § 9 was to fill the void created by the fact that it would be a defense to a charge under § 151A that the accused actually intended to bomb.

For these reasons I would affirm the judgment of the Court of Special Appeals.

Judge WILNER has authorized me to state that he joins in the views expressed herein.

1 . By taking the position that the original intent of § 151A was to exclude threats from "statement[s],” the majority seeks, unconvincingly to me, to avoid saying that the later enacted statute partially repealed, as to threats, the earlier enacted statute. That would, of course, violate a cardinal rule of statutory construction “that repeals not express will not be found unless demanded by irreconcilability or repugnancy.” Harden v. Mass Transit Admin., 277 Md. 399, 407, 354 A.2d 817, 821 (1976).