Lawrence v. State

Neal Lawrence, IV v. State of Maryland, No. 32, September Term, 2020. Opinion by
Getty, J.
CRIMINAL LAW – PROHIBITION ON WEARING, CARRYING, OR
TRANSPORTING A HANDGUN – MENS REA
Relying on the doctrine of stare decisis, the Court of Appeals held that Md. Code (2002,
2021 Repl. Vol.), Crim. Law (“CR”) § 4-203(a)(1)(i) sets forth a strict liability offense.
Thirty-three years ago, in Lee v. State, this Court determined that the predecessor statute to
CR § 4-203(a)(1)(i) imposed strict liability for wearing, carrying, or transporting a handgun
on or about the person. 311 Md. 642 (1988). Where the language of CR § 4-203(a)(1)(i)
is substantially unchanged from its predecessor, the Court of Appeals held that the statute’s
plain language, statutory structure, and legislative history all support the Lee Court’s
holding. In light of the Supreme Court’s longstanding presumption that criminal statutes
include mens rea as an element, the Court declined to overlook the General Assembly’s
clear intent by reading a “knowingly” mens rea into the statute. Moreover, the Court
determined that, in the thirty-three years since Lee has been decided, the General Assembly
has acquiesced to the Court’s holding in that case. Thus, in checking its statutory
interpretation of CR § 4-203(a)(1)(i) against the Due Process Clause of the United States
Constitution and Maryland case law involving “public welfare offenses,” the Court
declined to depart from stare decisis.
Circuit Court for Harford County
Case No. 12-K-17-001269
Argued: February 4, 2021
IN THE COURT OF APPEALS
OF MARYLAND
No. 32
September Term, 2020
______________________________________
NEAL LAWRENCE, IV
V.
STATE OF MARYLAND
______________________________________
Barbera, C.J.
McDonald,
Watts,
Hotten,
Getty,
Booth,
Biran,
JJ.
______________________________________
Opinion by Getty, J.
Pursuant to Maryland Uniform Electronic Legal
Materials Act
______________________________________
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.
2021-08-10 Filed: August 10, 2021
11:13-04:00
Suzanne C. Johnson, Clerk
This case involves the statutory interpretation of § 4-203 of the Criminal Law
Article, which sets forth Maryland’s prohibition on “wear[ing], carry[ing], or
transport[ing] a handgun, whether concealed or open, on or about the person[.]”1 We are
tasked with determining whether the General Assembly intended for its enactment, which
does not include language indicating mens rea, to set forth a strict liability offense. Thirty-
three years ago, in Lee v. State, 311 Md. 642 (1988), this Court unanimously and
unequivocally held that the predecessor statute to CR § 4-203(a)(1)(i) imposed strict
liability for wearing, carrying, or transporting a handgun on or about the person.2 Although
short, the Lee Court’s analysis determined that the plain language and legislative history of
Article 27, § 36B(b) both pointed to one conclusion—that the General Assembly intended
to create a strict liability offense by wholly omitting mens rea as an element of the offense.
As part of Maryland’s code revision, the General Assembly enacted the Criminal
Law Article in 2002. Article 27, § 36B(b) was recodified as CR § 4-203(a) but the
language remained substantially unchanged from the wording analyzed by the Lee Court.
The General Assembly subsequently amended the statute eight times without altering the
language of CR § 4-203(a)(1)(i). Relying on the doctrine of stare decisis, which ordinarily
requires this Court to adhere to its precedent, we hold that the General Assembly intended
for CR § 4-203(a)(1)(i) to set forth a strict liability offense. While we recognize the
Supreme Court’s longstanding presumption that criminal offenses contain mens rea as an
1
Md. Code (2002, 2021 Repl. Vol.), Crim. Law (“CR”) § 4-203(a)(1)(i).
2
Of course, this prohibition was subject to the exceptions in Article 27, § 36B(c). See Lee,
311 Md. at 658 n.7; Md. Code (1957, 1982 Repl. Vol.), Article 27, § 36B(b), (c).
element, the text, structure, and legislative history of CR § 4-203(a)(1)(i) preclude us from
reading a “knowingly” mens rea into the statute.
Moreover, in declining to amend the statutory language in the thirty-three years
since Lee was decided, the General Assembly has acquiesced to this Court’s holding in that
case. Where CR § 4-203(a)(1)(i) is neither unconstitutional under the Due Process Clause
of the Fourteenth Amendment, nor in conflict with Maryland law outlining strict liability
“public welfare offenses,” we are unconvinced that an exception to the doctrine of stare
decisis applies here. Thus, because Lee is still good law, we affirm the judgment of the
Court of Special Appeals and interpret CR § 4-203(a)(1)(i) as setting forth a strict liability
offense.
BACKGROUND
A. The Arrest.
In the early morning hours of July 29, 2017, Maryland State Police Trooper Nicolas
Urbano (“Trooper Urbano”) responded to the report of a red Nissan Altima stopped in the
middle of Route 152 near Interstate 95 in Harford County. Upon arriving at the stopped
vehicle, Trooper Urbano observed that the engine was running, the brake lights were
activated, and the driver’s side window was open. Trooper Urbano approached the vehicle
and noticed that an unresponsive male was sitting in the driver’s seat. Trooper Urbano first
tried to speak to the unresponsive male through the open driver’s side window, but he did
not respond. Trooper Urbano then yelled for the male to wake up, however, he remained
unresponsive. This prompted Trooper Urbano to shake the individual’s shoulder and
2
administer a sternum rub.3 The male did not respond. Trooper Urbano then opened the
driver’s side door, put the car in park, and administered a second sternum rub.
At trial, Trooper Urbano identified the male in the driver’s seat of the Nissan as
Neal Lawrence, IV and testified that Mr. Lawrence regained consciousness after the second
sternum rub. As Mr. Lawrence regained consciousness, Trooper Urbano “observed what
appeared to be the handle or back of a handle of a handgun.” Trooper Urbano explained
that the handgun was located “kind of in between [Mr. Lawrence’s] legs in the center of
the driver’s seat but on the floorboard.” Trooper Urbano ordered Mr. Lawrence out of the
car and, after assisting him from the driver’s seat, placed him in handcuffs.
Trooper Urbano patted down Mr. Lawrence’s clothing for weapons and, according
to his testimony, he immediately noticed the odor of alcohol. At this time, Mr. Lawrence
told Trooper Urbano that he was travelling from his house in Baltimore to his girlfriend’s
house in Edgewood. Having removed Mr. Lawrence from the vehicle and placed him in
handcuffs, Trooper Urbano then “went back to the vehicle and secured the handgun that
was under the driver’s seat on the floorboard.” Trooper Urbano testified that, after
removing the handgun from the vehicle, he removed the magazine from the handgun and
observed that it contained four bullets.
3
Trooper Urbano testified that a “sternum rub” is a technique that involves using your
knuckles to “rub the sternum or bone area between the breast.” It is used to cause
“discomfort” that “usually wakes” an unconscious subject. See also Garlick v. Cty. of
Kern, 167 F. Supp. 3d 1117, 1127 n.5 (E.D. Cal. 2016) (“A sternum rub is a technique used
to wake people from unconsciousness by applying pressure with the knuckles to the
sternum.” (internal quotation marks and citation omitted)).
3
While conducting his investigation, Trooper Urbano also attempted to determine
whether Mr. Lawrence owned the Nissan. Trooper Urbano testified that, during his
investigation, he conducted a search in the National Crime Information Center (“NCIC”)
database that allowed him to access records from the Maryland Motor Vehicle
Administration (“MVA”).4 Based on MVA records found in the NCIC database, Trooper
Urbano determined that Mr. Lawrence owned the vehicle.5 At the conclusion of Trooper
Urbano’s investigation, he placed Mr. Lawrence under arrest and drove him to the State
Police Barracks in Bel Air.
After arriving at the State Police Barracks, Trooper Urbano conducted a full search
of Mr. Lawrence’s person and found “crack cocaine rocks inside one of [Mr. Lawrence’s]
socks.” Mr. Lawrence consented to a battery of field sobriety tests, from which Trooper
Urbano determined that Mr. Lawrence was under the influence of alcohol or a controlled
dangerous substance. Trooper Urbano’s conclusion was confirmed later that morning
when, while Mr. Lawrence was in custody, police officers administered an Intoximeter test
that registered a blood alcohol concentration of .13.6
4
The NCIC database is a computer system “through which licenses, vehicle registrations,
and outstanding warrants are checked[.]” Byndloss v. State, 391 Md. 462, 469 (2006).
5
However, on cross-examination, defense counsel presented Trooper Urbano with a
“temporary registration card” from the time of the arrest and a “permanent registration
card” that both named Isis England as the registered owner of the vehicle.
6
“An Intoximeter is the instrument officers use to determine the alcohol concentration of
suspected drunk drivers.” Portillo Funes v. State, 469 Md. 438, 456 n.4 (2020) (citing
Motor Vehicle Admin. v. Smith, 458 Md. 677, 683 n.5 (2018)). The legal limit for the blood
alcohol concentration of a motorist in Maryland is .08. Id. at 456.
4
Mr. Lawrence waived his Miranda7 rights and admitted that he had smoked “crack”
a few hours before he was found unresponsive by Trooper Urbano. When asked about the
handgun found in the vehicle, Mr. Lawrence stated that it was not his and “denied knowing
anything about” it. Based on Trooper Urbano’s investigation and Mr. Lawrence’s
admissions, the State charged Mr. Lawrence with possession of ammunition by a
disqualified person; possession of a regulated firearm by a disqualified person; wearing,
carrying, or transporting a handgun on or about the person; possession of cocaine; driving
under the influence of alcohol; and driving while impaired by a controlled and dangerous
substance.
B. The Trial and Appeal.
1. The Jury Instruction.
Mr. Lawrence stood trial in the Circuit Court for Harford County and, at the close
of evidence, his counsel objected to the State’s requested jury instruction on the wearing,
carrying, or transporting a handgun charge. The jury instruction sought by the State read:
The defendant is charged with the crime of carrying [or] transporting
a handgun upon their person. In order to convict the defendant, the State
must prove: (1) That the defendant, wore, carried, or transported a handgun
that was within his reach and available for his immediate use.
A handgun is a pistol, revolver, or other firearm, capable of being
concealed on or about the person, and which is designed to fire a bullet by
the explosion of gunpowder.[8]
7
Miranda v. Arizona, 384 U.S. 436 (1966).
8
The pattern jury instruction for wearing, carrying, or transporting a handgun on or about
the person, Maryland Criminal Pattern Jury Instruction 4:35.2, provides:
The defendant is charged with the crime of carrying a handgun. In
order to convict the defendant, the State must prove: that the defendant wore,
5
Mr. Lawrence’s counsel objected to the instruction and argued that it incorrectly disposed
of the mens rea—knowledge—required to convict under this charge:
There doesn’t seem to be any requirement for the person to even know
they have the firearm on their person. When I say on the person, it doesn’t
have to be on the person. It can be apparently transported somewhere in a
vehicle and under the definition still be technically on your person. So, I
guess you could have a gun in your car or someone could secret a small gun
in your jacket and you could be convicted without any knowledge at all
merely because the gun, in fact, was there without any scienter or mens rea
on your part of criminal intent.
The gun in this case is a regulated firearm. . . . To have that firearm
it has to be knowingly possessed. There is a definition for possessed, which
the possession is similar to that in the other instruction of being within your
reach or grasp. So, you have a regulated firearm, you have to have
knowledge, but if that same regulated firearm is in your car arguably you
don’t have to have knowledge, which makes no sense.
Additionally, there are bullets in the firearm and under the definition
of ammunition it again indicates that you have to have knowledge and
possess it. So, you can have a firearm in your car that you don’t know about,
you can’t be convicted on the bullets in the firearm because there you have
to have knowledge . . . but seemingly you could be convicted on a [firearm]
which is . . . in your car that you don’t know about under the definition, which
makes no sense. So, that is my objection. I just don’t think the instruction
could possibly be correct.
The trial court disagreed and overruled the objection:
THE COURT: I understand. . . . [I]f we were talking about a situation where
we were trying to craft an instruction that did not or was not addressed in the
pattern, I think we would have to spend a little bit more time on this. But
carried, or transported a handgun that was within his or her reach and
available for his or her immediate use.
A handgun is a pistol, revolver, or other firearm, capable of being
concealed on or about the person, and which is designed to fire a bullet by
the explosion of gunpowder.
Maryland State Bar Ass’n, Maryland Criminal Pattern Jury Instruction 4:35.2 (2d ed.,
2020 Supp.) (cleaned up). The pattern instruction is the same today as it was during Mr.
Lawrence’s trial.
6
when we have a pattern instruction, I am generally not going to deviate from
that pattern absent there being some compelling argument particularly citing
case law which would support such a position. I believe you indicated when
we were back in chambers that you were not aware of any case law on point
that would address the issue.
[DEFENSE COUNSEL]: No.
THE COURT: So, since we are dealing with a pattern jury instruction, I’m
not going to edit[] that in any way, shape or form. Whether that is an issue
that should be addressed by the legislature, I’ll leave that to somebody else
to decide, but it seems to me it is creating a distinction between a general
intent and a specific intent crime.
[DEFENSE COUNSEL]: But in both instances you have an intent. I’m
saying you can’t have an intent when you have no knowledge. But I
understand the Court’s position.
2. The Verdict and Motion for a New Trial.
The trial court propounded the State’s requested pattern jury instruction for wearing,
carrying, or transporting a handgun on or about the person. The jury returned a split verdict
and acquitted Mr. Lawrence of possession of ammunition and possession of a regulated
firearm by a disqualified person. The jury convicted Mr. Lawrence of wearing, carrying,
or transporting a handgun on or about the person; possession of cocaine; driving under the
influence of alcohol; and driving while impaired by a controlled dangerous substance.
Mr. Lawrence timely moved for a new trial and argued that the trial court improperly
ignored the mens rea element of wearing, carrying, or transporting a handgun by
propounding the State’s requested jury instruction. In a hearing on Mr. Lawrence’s motion
for a new trial, the trial court denied the motion from the bench and explained why it did
not add “knowledge” as a required element of the crime:
7
All right. The Court did have some pause because of the very recent
decision in Williams versus State[9] from the Court of Appeals that deals with
the issue of where a pattern instruction was wrong. Of course, it is often
hammered home to judges that you can’t go wrong with using the pattern
instructions. But, of course, as Williams indicates that is not always true
because sometimes the pattern instructions are wrong.
But the difference between Williams and this case is that in Williams,
as I read it, the pattern instruction did not properly set forth the elements that
are established in the statute and in the present case the statute very clearly
sets forth two separate elements of the two types of offenses or actually there
are five total options under Section 4-203.
The two that are applicable here are wear, carry or transport a handgun
whether concealed or open on or about the person. The State’s position, and
the Court agrees, that that [sic] is the crime, the nature of the crime that the
Defendant was charged with and which was instructed to the jury in which
the jury found the Defendant guilty of.
The second option there is wear, carry or knowingly transport a
handgun whether concealed or open in a vehicle, and that clearly contains
the knowingly element in that count, but given that the indictment in this case
is for wear, carry or transport a handgun, whether concealed or open, on or
about the person, the Court concludes that the instruction that I gave which
does not include the element of scienter is the proper instruction to give in
this case.
The trial court sentenced Mr. Lawrence to a five-year term of imprisonment with all
but two years suspended. Of that sentence, three years were attributable to the wearing,
carrying, or transporting a handgun conviction. Mr. Lawrence received credit for 355 days
of time served and was sentenced to an additional eight-year term of imprisonment for
violating the conditions of his probation.
3. The Appeal.
Mr. Lawrence appealed his conviction on the handgun charge to the Court of Special
Appeals and challenged whether “the lower court err[ed] in failing to instruct the jury, as
9
Williams v. State, 462 Md. 335 (2019).
8
requested, that Mr. Lawrence could not be convicted of carrying or transporting a handgun
about his person absent knowledge of the presence of that weapon[.]” Lawrence v. State,
No. 319, Sept. Term, 2019, 2020 WL 4015838, at *1 (Md. Ct. Spec. App. July 16, 2020).
In an unreported opinion filed on July 16, 2020, the Court of Special Appeals affirmed the
trial court and held that “knowledge” is not an element of wearing, carrying, or transporting
a handgun on or about the person. Id. at *7.
Mr. Lawrence filed a petition for writ of certiorari, which this Court granted on
October 6, 2020, to answer the following question:
Is wearing, carrying, or transporting a handgun on or about one’s person a
strict liability crime?
Lawrence v. State, 471 Md. 101 (2020).
For the reasons below, we answer that question in the affirmative and hold that the
trial court did not err in propounding the State’s requested jury instruction. Although this
Court and the Supreme Court disfavor omitting mens rea as an element of criminal statutes,
the doctrine of stare decisis compels us to interpret the statutory elements of Md. Code
(2002, 2021 Repl. Vol.), Crim. Law (“CR”) § 4-203(a)(1)(i) as omitting mens rea. Based
on the plain text of the statute, our previous holding in Lee, and the General Assembly’s
acquiescence to that decision, we hold that “knowledge” is not an element of the crime
charged. We therefore affirm the judgment of the Court of Special Appeals.
DISCUSSION
A. Standard of Review.
9
We review a trial court’s decision to propound or not propound a proposed jury
instruction under an abuse of discretion standard. Stabb v. State, 423 Md. 454, 465 (2011)
(citing Gunning v. State, 347 Md. 332, 351(1997)). The discretion given to trial judges
is a composite of many things, among which are conclusions drawn from
objective criteria; it means a sound judgment exercised with regard to what
is right under the circumstances and without doing so arbitrarily or
capriciously. Where the decision or order is a matter of discretion it will not
be disturbed on review except on a clear showing of abuse of discretion, that
is, discretion manifestly unreasonable, or exercised on untenable grounds, or
for untenable reasons.
Id. (quoting In re Don Mc., 344 Md. 194, 201 (1996)). We accordingly “consider the
following factors when deciding whether a trial court abused its discretion in deciding
whether to grant or deny a request for a particular jury instruction: (1) whether the
requested instruction was a correct statement of the law; (2) whether it was applicable
under the facts of the case; and (3) whether it was fairly covered in the instructions
actually given.” Id. (citing Gunning, 347 Md. at 348).
Matters of statutory interpretation are questions of law; therefore, we interpret the
meaning of CR § 4-203(a)(1)(i) de novo. Wash. Gas Light Co. v. Maryland Pub. Serv.
Comm’n, 460 Md. 667, 680 (2018). As the Court of Special Appeals aptly stated below,
our ultimate goal “is to determine whether the jury instruction correctly identified the
elements of the statutory crime.” Lawrence, 2020 WL 4015838, at *6.
B. Did the General Assembly Intend for CR § 4-203(a)(1)(i) to be a Strict Liability
Crime?
Whether the trial judge below abused his discretion in propounding the State’s
requested jury instruction, which omitted “knowledge” as an element of wearing, carrying,
10
or transporting a handgun on or about the person, turns on the statutory interpretation of
CR § 4-203(a)(1)(i). See Rehaif v. United States, 139 S. Ct. 2191, 2195 (2019) (citing
Staples v. United States, 511 U.S. 600, 605 (1994)) (“Whether a criminal statute requires
the Government to prove that the defendant acted knowingly is a question of congressional
intent.”). Specifically, we are tasked with determining whether the General Assembly
intended to include scienter, or mens rea, as an element of wearing, carrying, or
transporting a handgun on or about the person. This Court’s process of statutory
interpretation is well-defined, and “[our] primary goal is to ascertain the purpose and
intention of the General Assembly when they enacted the statutory provisions.” United
Bank v. Buckingham, 472 Md. 407, 423 (2021) (quoting Town of Forest Heights v.
Maryland-Nat’l Capital Park and Planning Comm’n, 463 Md. 469, 478 (2019)).
CR § 4-203 prohibits five acts related to wearing, carrying, or transporting a
handgun and provides:
(a)(1) Except as provided in subsection (b) of this section, a person
may not:
(i) wear, carry, or transport a handgun, whether concealed or
open, on or about the person;
(ii) wear, carry, or knowingly transport a handgun, whether concealed
or open, in a vehicle traveling on a road or parking lot generally used
by the public, highway, waterway, or airway of the State;
(iii) violate item (i) or (ii) of this paragraph while on public school
property in the State;
(iv) violate item (i) or (ii) of this paragraph with the deliberate purpose
of injuring or killing another person; or
(v) violate item (i) or (ii) of this paragraph with a handgun loaded with
ammunition.
(2) There is a rebuttable presumption that a person who transports a handgun
under paragraph (1)(ii) of this subsection transports the handgun knowingly.
11
CR § 4-203(a) (emphasis added).10 The statute also contains nine exceptions to the
prohibited acts listed above. See CR § 4-203(b).
1. The Parties’ Contentions.
Mr. Lawrence asks this Court to read into the statute a requirement that the State
prove “knowledge” as an element of CR § 4-203(a)(1)(i).11 In arguing that the General
Assembly has always intended for “knowledge” to be an element of subparagraph (a)(1)(i),
Mr. Lawrence raises several points. He first relies on the text and posits that the General
Assembly’s use of transitive verbs, i.e. “wear,” “carry,” and “transport,” suggests that the
legislative intent of subparagraph (a)(1)(i) was to punish only affirmative acts that are
carried out knowingly. Mr. Lawrence then asserts that the statute’s legislative history and
the Supreme Court’s general distaste for eliminating mens rea as an element of criminal
statutes bolster his preferred interpretation. Lastly, Mr. Lawrence makes several arguments
as to why this Court should depart from its reasoning in Lee v. State, which held that the
predecessor statute to CR § 4-203(a)(1)(i) was a strict liability offense. 311 Md. 642(1988). Mr. Lawrence contends that Lee is inconsistent with both Maryland and Supreme
10
At the time Mr. Lawrence was charged with violating CR § 4-203, subsection (a)(1) only
contained four subparagraphs. In 2018, the General Assembly amended CR § 4-203(a)(1)
to include a fifth prohibition, subparagraph (v). CR § 4-203(a)(1)(v) prohibits violating
“item (i) or (ii) of this paragraph with a handgun loaded with ammunition” and is not at
issue in this case.
11
For ease of reading, we sometimes refer to the subsections and subparagraphs of CR §
4-203 directly as such, i.e., “subparagraph (a)(1)(i).” To be clear, all references to
subsections or subparagraphs relate to CR § 4-203.
12
Court case law, and that interpreting CR § 4-203(a)(1)(i) as a strict liability offense brings
its constitutionality into question.
On the other hand, the State argues that the text of CR § 4-203(a)(1)(i)
unambiguously disposes of a mens rea requirement and creates a strict liability offense for
wearing, carrying, or transporting a handgun on or about the person. The State maintains
that the General Assembly’s decision to include “knowingly” as an element of CR §
4-203(a)(1)(ii) fortifies its conclusion that the General Assembly’s intent in enacting the
predecessor statute to CR § 4-203(a)(1)(i)—which aimed to stem widespread gun violence
in the 1970s—was to create a strict liability offense. In response to Mr. Lawrence’s
argument that Lee was wrongly decided and is incompatible with subsequent case law, the
State asks this Court to adhere to the doctrine of stare decisis. The State sets forth that Lee
does not fall under an exception that would urge the Court to abandon its previous holding
and that attaching strict liability to CR § 4-203(a)(1)(i) is compatible with both this Court’s
and the Supreme Court’s understanding of strict liability in the criminal context.
2. Lee v. State.
This is not the first time that we have considered whether the General Assembly
intended to attach strict liability to wearing, carrying, or transporting a handgun on or about
the person. In Lee v. State, this Court was presented with almost the exact issue that we
face here: “Does the Maryland statute prohibiting the carrying of a handgun require
knowledge of the presence of the handgun[?]” 311 Md. at 646.
13
At that time, the predecessor statute to CR § 4-203—Md. Code (1957, 1982 Repl.
Vol.), Article 27, § 36B(b)—contained similar language12 to the current statute:
Any person who shall wear, carry or transport any handgun, whether
concealed or open, upon or about his person, and any person who shall wear,
carry or knowingly transport any handgun, whether concealed or open, in
any vehicle traveling upon the public roads . . . shall be guilty of a
misdemeanor; and it shall be a rebuttable presumption that the person is
knowingly transporting the handgun . . . .
Lee, 311 Md. at 647 (quoting Article 27, § 36B(b)). Article 27, § 36B(b) was enacted by
the General Assembly in 1972 when it passed emergency legislation proposed by Governor
Marvin Mandel to provide more stringent penalties against those who illegally carried
handguns on the streets of Maryland. See Senate Bill 205, 1972 Leg., 375th Sess. (Md.
1972); House Bill 277, 1972 Leg., 375th Sess. (Md. 1972). The bill was signed into law
by Governor Mandel as 1972 Md. Laws, ch. 13 “to make unlawful, generally regulate, and
provide penalties for the wearing, carrying, or transporting of handguns[.]” Senate Bill
205, 1972 Leg., 375th Sess. (Md. 1972); see also Bill File to S.B. 205 (1972).13
12
The Maryland Code was recodified in 2002 and Article 27, § 36B became § 4-203 of the
Criminal Law Article. See 2002 Md. Laws, ch. 26. The Revisor’s Note for CR § 4-203
states that “[t]his section is new language derived without substantive change from former
Art. 27, § 36B(b) and (c).” Id.
13
While the legislative history for bills enacted prior to 1976 is often scarce, in this case,
an extensive bill file for the 1972 handgun legislation exists in the Department of
Legislative Services’ library. Blue v. Prince George’s Cty., 434 Md. 681, 694 n.18 (2013)
(“It is typically difficult to locate legislative history in Maryland for bills enacted prior to
1976, when the Department of Legislative Reference began to systematically preserve bill
files for each session. The Department did, however, compile a special bound volume of
the bill files for the 1972 handgun legislation, which has been retained in the State Law
Library.”).
14
Prior to the General Assembly’s enactment of Article 27, § 36B, its prohibition on
illegal handguns fell within the more general provisions of Md. Code (1957, 1971 Repl.
Vol.), Article 27, § 36(a). The prohibition on dangerous weapons, including handguns, in
§ 36(a) was originally enacted by the General Assembly in 1886 and provided:
Every person not being a conservator of the peace entitled or required to carry
such weapon as a part of his official equipment, who shall wear or carry any
pistol, dirk-knife, bowie-knife, slung-shot [sic], billy, sand-club, metal
knuckles, razor or any other dangerous or deadly weapon of any kind
whatsoever, (penknives excepted) concealed upon or about his person, and
every person who shall carry or wear any such weapon openly with the intent
or purpose of injuring any person, shall, upon conviction thereof, be fined
not more than five hundred dollars or be imprisoned not more than six
months in jail or the House of Correction.
1886 Md. Laws, ch. 375. That language remained substantively unchanged until 1972,
albeit prescribing an enhanced $1,000 fine and maximum three-year term of imprisonment:
Every person who shall wear or carry any pistol, dirk knife, bowie knife,
switchblade knife, sandclub, metal knuckles, razor, or any other dangerous
or deadly weapon of any kind, whatsoever (penknives without switchblade
excepted) concealed upon or about his person, and every person who shall
wear or carry any such weapon openly with the intent or purpose of injuring
any person in any unlawful manner, shall be guilty of a misdemeanor, and
upon conviction thereof, shall be fined not more than one thousand
($1,000.00) dollars or be imprisoned in jail, or sentenced to the Maryland
Department of Correction for not more than three years[.]
Article 26, § 36(a) (1971 Repl. Vol.).
The General Assembly’s creation of a provision that separately—and more
stringently—punished wearing, carrying, or transporting handguns was, as is eminently
clear from the multitude of amendments made to Senate Bill 205, part of a contentious
legislative process. One such amendment, the inclusion of the word “knowingly” to the
provision involving vehicular transportation, was the focus of the Lee Court’s analysis in
15
determining whether wearing, carrying, or transporting a handgun was a strict liability
offense.
The Court first looked to the plain language of Article 27, § 36B(b) and
unequivocally held that the statute “create[d] strict liability for the wearing or carrying of
a handgun about one’s person.” Lee, 311 Md. at 647. Although the Court’s reasoning in
Lee was grounded in the plain language of Article 27, § 36B(b), it also determined that the
legislative history supported its interpretation that the General Assembly intended to create
a strict liability offense:
The scienter requirement applies only to vehicular transportation of a
handgun and was inserted “so that a person who shows that he was not aware
that his vehicle was transporting a handgun will not incur penalties.” Shell
v. State, 307 Md. 46, 69, 512 A.2d 358, 369 (1986). This interpretation is
strengthened by the fact that the legislative bill by which § 36B(b) was
proposed provided for strict liability without any knowledge requirement as
to wearing, carrying and transporting. The “knowledge” requirement for
transporting was inserted by amendment. See Acts of 1972, ch. 13. The
addition of a scienter requirement specifically for vehicular transport
underscores the corresponding omission of that requirement for wearing and
carrying handguns.
Id.
The Lee Court went no further in reconciling the language of the statute with the
legislature’s purpose in enacting § 36B(b). Neither the bill file for Senate Bill 205 nor the
language of the bill explicitly indicate the General Assembly’s intent in amending the
statute to include the word “knowingly” before the vehicular transportation provision in §
36B. In the end, however, the Court construed the omission of language indicating a mens
rea requirement and the General Assembly’s subsequent amendment adding the word
16
“knowingly” before “transport” as dispositive of the General Assembly’s intent in affixing
strict liability to “wearing and carrying handguns.” Id.
We recognize that the direct lineage between CR § 4-203 and Article 27, § 36B(b),
puts our decision today up against the doctrine of stare decisis. We address this issue
below. However, because this is the first time that this Court has interpreted the more
recently enacted CR § 4-203, we first offer our own statutory analysis.
3. Statutory Analysis.
Our statutory analysis begins “with the plain language of the statute, and ordinary,
popular understanding of the English language dictates [our] interpretation[.]” Blackstone
v. Sharma, 461 Md. 87, 113 (2018) (quoting Schreyer v. Chaplain, 416 Md. 94, 101
(2010)). “We read the ‘statute as a whole to ensure that no word, clause, sentence or phrase
is rendered surplusage, superfluous, meaningless or nugatory.’” Buckingham, 472 Md. at
423 (quoting Town of Forest Heights, 463 Md. at 478). In contrast to Article 27, § 36B(b),
CR § 4-203 provides two distinct modalities that are the focus of our statutory inquiry.
Subparagraph (a)(1)(i), which was the only violation of CR § 4-203 charged by the State
in this case, prohibits “wear[ing], carry[ing], or transport[ing] a handgun, whether
concealed or open, on or about the person[.]”14 CR § 4-203(a)(1)(i). As is evident from
14
We are fully aware that the handgun found under Mr. Lawrence’s car seat could have
also been charged as a violation of CR § 4-203(a)(1)(ii), which specifically applies to
handguns worn, carried, or transported in a vehicle and prescribes a general intent
“knowingly” mens rea. Because of the proximity of the handgun to Mr. Lawrence’s
person, an argument can be made that the handgun was “on or about” his person because
it was stored in a way that made it available for immediate use. However, our decision
today in no way expands the scope of the term “on or about” in CR § 4-203(a)(1)(i).
17
the text, the General Assembly did not expressly include an element requiring that the State
prove mens rea. Compare this with CR § 4-203’s second modality, in which the General
Assembly included “knowingly” as a required element of “wear[ing], carry[ing], or
knowingly transport[ing], a handgun, whether concealed or open, in a vehicle traveling on
a road or parking lot generally used by the public, highway, waterway, or airway of the
State[.]” CR § 4-203(a)(1)(ii) (emphasis added).
Mr. Lawrence asks that we read a “knowingly” mens rea into the statute’s first
modality even though it contains no language indicating a mens rea element. Mr.
Lawrence’s argument relies on the definitions of the terms used by the General Assembly
in CR § 4-203(a)(1)(i), i.e. “wear, carry, or transport[.]” “If the words of the statute,
construed according to their common and everyday meaning, are clear and unambiguous
and express a plain meaning, we will give effect to the statute as it is written.” Buckingham,
472 Md. at 423 (Fangman v. Genuine Title, LLC, 447 Md. 681, 691 (2016)). “Wear,”
according to Merriam Webster, means “to bear or have on the person[.]” Wear, Merriam
Webster, https://www.merriam-webster.com/dictionary/wear [https://perma.cc/6697-
Y6AR]. “Carry” means “to move while supporting: TRANSPORT[.]” Carry, Merriam
Webster, https://www.merriam-webster.com/dictionary/carry [https://perma.cc/HA4X-
JBYV]; see In re Colby H., 362 Md. 702, 712 (2001) (“‘Carry,’ taken in its plain meaning,
is defined as ‘to move while supporting; convey; transport’ or ‘to wear, hold, or have
around one.’”). “Transport” means “to transfer or convey from one place to another[.]”
Transport, Merriam Webster, https://www.merriam-webster.com/dictionary/transport
[https://perma.cc/EQ5R-GMH4].
18
In light of these definitions, Mr. Lawrence maintains that “wear,” “carry,” and
“transport” are affirmative verbs whose definition implies some level of knowledge on
the part of the doer. We agree to some extent that these verbs indicate some level of
knowledge or understanding of the presence of the handgun, i.e. someone does not
ordinarily “wear, carry, or transport” a handgun with no knowledge that they are doing
so. Significantly, however, this argument improperly renders the word “knowledge” in
subparagraph (a)(1)(ii) surplusage. “It is a common rule of statutory construction that,
when a legislature uses different words, especially in the same section or in a part of the
statute that deals with the same subject, it usually intends different things.” Toler v. Motor
Vehicle Admin., 373 Md. 214, 223 (2003) (citing Parkinson v. State, 14 Md. 184 (1859)).
While this rule is not “immutable,” we find it instructive in discerning whether the
General Assembly intended to include “knowledge” as an element of subparagraph
(a)(1)(i) without expressly stating so. Id. at 224. In choosing to exclude “knowingly”
from subparagraph (a)(1)(i) but include it as an element of subparagraph (a)(1)(ii), we
presume that the General Assembly “meant what it said and said what it meant.” Peterson
v. State, 467 Md. 713, 727 (2020) (quoting Bellard v. State, 452 Md. 467, 481 (2017)).
Such a construction of CR § 4-203(a)(1)(i) and (ii) conforms with this Court’s
“commonsensical” approach to statutory interpretation. Della Ratta v. Dyas, 414 Md.
556, 567 (2010) (quoting Frost v. State, 336 Md. 125, 137 (1994)). This Court’s statutory
interpretation “seek[s] to avoid constructions that are illogical, unreasonable, or
inconsistent with common sense[;]” therefore, we must also reconcile the General
Assembly’s inclusion of a rebuttable presumption in CR § 4-203(a)(2). Id. Where
19
subparagraph (a)(1)(ii) requires that the State prove “knowledge” as an element of
transporting a handgun in a vehicle, subsection (a)(2) creates a “rebuttable presumption
that a person who transports a handgun under paragraph (1)(ii) of this subsection
transports the handgun knowingly.” See CR § 4-203(a)(2). The General Assembly’s
inclusion of a rebuttable presumption as to the vehicular transport modality, and not the
modality for wearing, carrying, or transporting a handgun on or about the person, cuts
against Mr. Lawrence’s preferred interpretation.
Where both subparagraph (a)(1)(ii) and the rebuttable presumption in subsection
(a)(2) prescribe “knowingly” as the requisite mens rea for transporting a handgun in a
vehicle, we must also discern the definition of the term “knowingly.” This Court has given
different meanings to term “knowingly” in the mens rea context, which can either be read
as requiring specific intent or general intent. See, e.g., Chow v. State, 393 Md. 431 (2006).
This Court, in Shell v. State, rejected an argument that the term “knowingly” in Article 27,
§ 36B(b) required specific intent, i.e., that the State must prove that the defendant was
transporting a handgun in a vehicle with the specific purpose of doing so. 307 Md. 46, 69–
70 (1986). Rather, the Court found that “knowingly” only required the State to prove
general intent, reasoning that “the knowledge element of the offense was included largely
to prevent unwitting violations, and the purpose of the criminal provision as a whole is to
curb the transportation of handguns in vehicles . . . .” Id. Therefore, given this Court’s
analysis in Shell, we ascribe a general intent level of “knowledge” as the requisite mens
rea in the vehicular transport modality, CR § 4-203(a)(1)(ii).
20
In light of this statutory analysis, we are under no illusion that the Lee Court misread
the plain text of Article 27, § 36B(b) in that case. The statute was—as it is today—silent
as to the mens rea of wearing, carrying, or transporting a handgun on or about the person.
By citing to Shell, it appears that the Lee Court felt constrained by Shell’s pronouncement
that “knowledge” only required the State to prove general intent for the vehicular transport
modality. This ostensibly led the Court to believe that, because wearing, carrying, or
transporting a handgun on or about the person did not include the word “knowingly,” it
required no knowledge of the facts that made up the offense and therefore imposed strict
liability.
Our statutory interpretation of CR § 4-203(a)(1)(i) confirms the Lee Court’s short
analysis that affixed strict liability to wearing, carrying, or transporting a handgun on or
about the person. We do recognize, however, that the Lee Court either declined to, or failed
to, analyze the Supreme Court’s longstanding presumption that criminal statutes should
generally include a mens rea requirement. See Rehaif, 139 S. Ct. at 2195 (outlining the
“longstanding presumption, traceable to the common law, that [the legislature] intends to
require a defendant to possess a culpable mental state regarding ‘each of the statutory
elements that criminalize otherwise innocent conduct.’” (quoting United States v.
X-citement Video, Inc., 513 U.S. 64, 72 (1994))). This Court recognizes the Supreme
Court’s long-standing presumption in favor of including mens rea. Chow, 393 Md. at 463(“The requirement that an accused have acted with a culpable mental state is an axiom of
criminal jurisprudence.” (citation omitted)). For the sake of completeness, and to check
our understanding of the General Assembly’s intent, we now delve into these principles.
21
4. The Presumption in Favor of Mens Rea.
Although we agree with Mr. Lawrence that the inclusion of mens rea in criminal
statutes is generally presumed, the General Assembly has “wide latitude” to dictate the
statutory elements of its criminal enactments. Lambert v. California, 355 U.S. 225, 228
(1957); see Liparota v. United States, 471 U.S. 419, 424 (1985) (“The definition of the
elements of a criminal offense is entrusted to the legislature, particularly in the case of
federal crimes, which are solely creatures of statute.”). As we stated above, our ultimate
goal is to ascertain the intent of the General Assembly in enacting CR § 4-203(a)(1)(i).
Here, the language and structure of CR § 4-203 provide strong textual indicators that the
General Assembly intended to omit mens rea as an element. Moreover, in declining to
amend the statutory language in the thirty-three years since Lee was decided, the General
Assembly has acquiesced to the Court’s holding in that case. Thus, we are unconvinced
that the Supreme Court cases cited by Mr. Lawrence override the General Assembly’s
intent in eliminating mens rea as an element of wearing, carrying, or transporting a
handgun on or about the person.
At common law, a criminal defendant had to have a “guilty mind” to be convicted
of a crime. Morissette v. United States, 342 U.S. 246, 257 (1952). Before legislatures
began codifying criminal statutes, a criminal offense at common law “occurred only upon
the concurrence of the individual’s act and his guilty state of mind.” Dawkins v. State, 313
Md. 638, 643 (1988) (citing Morissette, 342 U.S. at 251–52).15 Beginning with the
15
This Court cited to Morissette as early as 1952, see Wild v. State, 201 Md. 73, 77 (1952),
and later pointed to Morissette’s discussion of “the construction of criminal statutes” in
22
Supreme Court’s seminal decision in Morissette, however, the Supreme Court has made
clear that the omission of language indicating mens rea does not unquestionably eliminate
mens rea as an element of a criminal statute. See, e.g., Elonis v. United States, 575 U.S.
723, 734 (2015) (“The fact that [a] statute does not specify any required mental state . . .
does not mean that none exists.”).
In Morissette, the Supreme Court declined to construe the federal conversion statute,
18 U.S.C. § 641, as omitting mens rea as an element.16 342 U.S. at 273. Morissette was
convicted of converting detonated bomb casings for scrap metal from a government-owned
bombing range in Michigan. Throughout the proceedings against him, Morissette
maintained that he thought the casings were abandoned and that he acted with no criminal
intent. While the Morissette Court recognized the legislature’s ability to regulate “public
welfare offenses” by eliminating mens rea—and imposing strict liability—it determined
that 18 U.S.C. § 641 was not a crime in which Congress intended to attach strict liability.
Id. at 255, 276.
The Supreme Court’s reasoning was grounded in the historical common law
requirement that a criminal offense include mens rea as an element. Id. at 250–52. In
reversing Morissette’s conviction, the Supreme Court explained that “[t]he contention that
an injury can amount to a crime only when inflicted by intention is no provincial or
declining to read an intent requirement into the criminal statute prohibiting bigamy. See
Braun v. State, 230 Md. 82, 89–90 (1962).
16
When Morissette was convicted of violating 18 U.S.C. § 641, it provided: “‘[W]hoever
embezzles, steals, purloins, or knowingly converts’ government property is punishable by
fine or imprisonment.” Morissette, 342 U.S. at 248.
23
transient notion. It is as universal and persistent in mature systems of law as belief in
freedom of the human will and a consequent ability and duty of the normal individual to
choose between good and evil.” Id. at 250. Morissette’s conviction under 18 U.S.C. § 641constituted a larceny-type offense at common law, therefore the Supreme Court declined
to construe the statute as disposing of culpable intent, or mens rea, as an element of the
offense.
Moreover, the Supreme Court determined that 18 U.S.C. § 641 did not fit the mold
of a “public welfare offense,” where the accused “usually is in a position to prevent
[conviction] with no more care than society might reasonably expect and no more exertion
than it might reasonably exact from one who assumed his responsibilities.” Id. at 256. In
reversing Morissette’s conviction, the Supreme Court’s holding had the practical effect of
recognizing the divide between the original common law requirement that a criminal
defendant have some level of culpable intent and the legislature’s prerogative to strictly
regulate conduct without prescribing an intent requirement.
The Supreme Court has repeatedly relied on its reasoning in Morissette as creating
a framework of statutory analysis for interpreting the mens rea element in criminal statutes.
As the Supreme Court explained in Staples, “[t]here can be no doubt” that the concepts
outlined in Morissette have “influenced [its] interpretation of criminal statutes.” Staples,
511 U.S. at 605; see also United States v. United States Gypsum Co., 438 U.S. 422, 436
(1978) (“We start with the familiar proposition that ‘[t]he existence of a mens rea is the
rule of, rather than the exception to, the principles of Anglo-American criminal
jurisprudence.’” (quoting Dennis v. United States, 341 U.S. 494, 500 (1951) (alteration in
24
original))). “Indeed, [the Supreme Court has] noted that the common-law rule requiring
mens rea has been ‘followed in regard to statutory crimes even where the statutory
definition did not in terms include it.’” Staples, 511 U.S. at 605–06 (quoting United States
v. Balint, 258 U.S. 250, 251–52 (1922)).
More recently, in Elonis, the Supreme Court expanded on its hesitancy to simply
credit the plain language of a criminal statute that is silent as to mens rea. Relying on the
analysis in Morissette, which we have described above, the Elonis Court succinctly
summarized Justice Robert Jackson’s reasoning as the foundation for its holding:
We have repeatedly held that “mere omission from a criminal enactment of
any mention of criminal intent” should not be read “as dispensing with it.”
This rule of construction reflects the basic principle that “wrongdoing must
be conscious to be criminal.” As Justice Jackson explained, this principle is
“as universal and persistent in mature systems of law as belief in freedom of
the human will and a consequent ability and duty of the normal individual to
choose between good and evil.” The “central thought” is that a defendant
must be “blameworthy in mind” before he can be found guilty, a concept
courts have expressed over time through various terms such as mens rea,
scienter, malice aforethought, guilty knowledge, and the like. Although there
are exceptions, the “general rule” is that a guilty mind is “a necessary element
in the indictment and proof of every crime.” We therefore generally
“interpret [] criminal statutes to include broadly applicable scienter
requirements, even where the statute by its terms does not contain them.”
Elonis, 575 U.S. at 734 (alteration in original) (in text citations omitted).
Significantly, however, the Supreme Court made clear in Morissette that the
legislature may enact strict liability offenses as it sees fit to regulate the public welfare.
Just five years after Morissette, in Lambert, the Supreme Court declined to “go with
Blackstone in saying that ‘a vicious will’ is necessary to constitute a crime . . . for conduct
alone without regard to the intent of the doer is often sufficient.” Lambert, 355 U.S. at 228
25
(quoting 4 Bl. Comm. *21). The Supreme Court explained that “[t]here is wide latitude in
the lawmakers to declare an offense and to exclude elements of knowledge and diligence
from its definition.” Id. (citation omitted).
Here, the General Assembly exercised its discretion in declining to include language
indicating mens rea in CR § 4-203(a)(1)(i). While Mr. Lawrence’s argument in favor of a
presumption of mens rea is well-founded, it fails to overcome the significant indicia of
legislative intent to the contrary in this case. Specifically, the General Assembly omitted
mens rea as an element of CR § 4-203(a)(1)(i) while simultaneously including the word
“knowingly” in CR § 4-203(a)(1)(ii). While this does not automatically require us to omit
mens rea as an element, the text and structure of CR § 4-203 make it clear that the General
Assembly did not intend to include “knowledge” as an element of subparagraph (a)(1)(i).
The purpose behind the enactment of CR § 4-203 also supports such a conclusion.
This Court explained in Kelley that Article 27, § 36B included a declaration of the General
Assembly’s purpose in enacting the statutory scheme:
(i) There has, in recent years, been an alarming increase in the number of
violent crimes perpetrated in Maryland, and a high percentage of those
crimes involve the use of handguns;
(ii) The result has been a substantial increase in the number of persons killed
or injured which is traceable, in large part, to the carrying of handguns on the
streets and public ways by persons inclined to use them in criminal activity;
(iii) The laws currently in force have not been effective in curbing the more
frequent use of handguns in perpetrating crime; and
(iv) Further regulations on the wearing, carrying, and transporting of
handguns are necessary to preserve the peace and tranquility of the State and
to protect the rights and liberties of its citizens.
26
Kelley v. R.G. Indus., Inc., 304 Md. 124, 141–42 (1985) (quoting 1972 Md. Laws, ch. 13);
see CR § 4-202 (outlining similar legislative findings for Title 4, Subtitle 2 of the Criminal
Law Article).
“From the 1960s through the 1980s, violent gun crime was rampant in America.
The wave of violence destroyed lives and devastated communities, particularly in
America’s cities.” United States v. Davis, 139 S. Ct. 2319, 2336 (2019) (Kavanaugh, J.,
dissenting). Maryland was not immune to this wave of violence involving illegal
handguns. In fact, just as the General Assembly detailed in its policy declaration for Article
27 § 36B, “handgun use resulting in death and serious injuries had risen to troubling levels
in [Maryland]” in the 1970s. Blue, 434 Md. at 693. Thus, the language enacted as Article
27, § 36B was submitted by Governor Marvin Mandel to the General Assembly as
emergency legislation to “curb ‘the widespread carrying of handguns on the streets and in
vehicles by persons who have no legitimate reason to carry them.’” Id. at 693 n.16 (quoting
Letter from Governor Marvin Mandel to Delegate Donald B. Robertson (December 21,
1971)); see also Senate Bill 205, 1972 Leg., 375th Sess. (Md. 1972); House Bill 277, 1972
Leg., 375th Sess. (Md. 1972).
The language used by the General Assembly in its policy declaration for Article 27,
§ 36B, and in its legislative findings in CR § 4-202, supports the State’s assertion that the
General Assembly intended to create a strict liability offense. Additionally, we are
convinced that the General Assembly has acquiesced to this Court’s holding in Lee. “The
General Assembly is presumed to be aware of this Court’s interpretation of its enactments
and, if such interpretation is not legislatively overturned, to have acquiesced in that
27
interpretation.” Williams v. State, 292 Md. 201, 210 (1981) (citing Harden v. Mass Transit
Admin., 277 Md. 399, 406 (1976)). In declining to amend the language of CR § 4-
203(a)(1)(i) in the thirty-three years after Lee was decided, the General Assembly has
acquiesced to the Lee Court’s pronouncement that wearing, carrying, or transporting a
handgun on or about the person is a strict liability offense.
As the State points out, the statutory language of CR § 4-203(a)(1)(i) has remained
substantially unchanged despite numerous reenactments over the years. In 2002, Article
27 was repealed, and its language was recodified in the Criminal Law Article without
substantive change as part of Maryland’s code revision.17 See 2002 Md. Laws, ch. 26.
Since the recodification of Article 27, the General Assembly has amended CR § 4-203
eight subsequent times without changing the language of subparagraph (a)(1)(i). 18 “This
Court provides judicial deference to the policy decisions enacted into law by the General
17
As we noted in Johnson v. State, “code revision is a periodic process by which statutory
law is re-organized and restated with the goal of making it more accessible and
understandable to those who must abide by it.” 467 Md. 362, 381 n.8 (2020) (quoting In
re S.K., 466 Md. 31, 56 n.21 (2019)). We further explained that:
Maryland Code Revision began in 1970 as a long-term project to create a
modern comprehensive code when Governor Marvin Mandel appointed the
Commission to Revise the Annotated Code. This formal revision of the
statutory law for the General Assembly was coordinated by the Department
of Legislative Services. Code Revision was completed in 2016 with the
enactment by the General Assembly of the Alcoholic Beverages Article.
Id.18
See 2003 Md. Laws, ch. 17; 2003 Md. Laws, ch. 21; 2004 Md. Laws, ch. 25; 2005 Md.
Laws, ch. 482; 2010 Md. Laws, ch. 712; 2011 Md. Laws, ch. 65; 2013 Md. Laws, ch. 427;
2018 Md. Laws, ch. 146.
28
Assembly.” Blackstone, 461 Md. at 113 (quoting Phillips v. State, 451 Md. 180, 196
(2017)). If the General Assembly intended for subparagraph (a)(1)(i) to set forth a
“knowingly” mens rea, it had ample opportunity post-Lee to amend the statute to include
language indicating such. Thus, even in light of the Supreme Court’s well-founded
presumption that a criminal offense ought to include mens rea as an element, the text,
purpose, and history of § 4-203(a)(1)(i) all suggest that the General Assembly intended for
it to impose strict liability.
5. Stare Decisis.
The Lee Court’s statutory interpretation, which affixed strict liability to the
prohibition on wearing, carrying, or transporting a handgun on or about the person, requires
us to consider the doctrine of stare decisis. “The crux of the doctrine of stare decisis is
that courts should reaffirm, follow, and apply ordinarily the published decisional holdings
of our appellate courts even though, if afforded a blank slate, the court might decide the
matter differently.” State v. Stachowski, 440 Md. 504, 520 (2014) (citing Coleman v.
Soccer Ass’n of Columbia, 432 Md. 679, 689 (2013)).
Although the doctrine is not absolute, we employ stare decisis to “encourage[] the
consistent development of legal principles, public reliance on our judicial decisions, and
the perceived integrity of the courts.” Id. (citing Livesay v. Baltimore Cty., 384 Md. 1, 14
(2004)). We have recognized two “extremely narrow” situations where it “would be
appropriate to overrule our own precedent.” Wallace v. State, 452 Md. 558, 582 (2017)
(quoting DRD Pool Serv., Inc. v. Freed, 416 Md. 46, 63–64 (2010)). The first exception
allows the Court to “strike down a decision that is[] ‘clearly wrong and contrary to
29
established principles.’” Id. (quoting DRD Pool Serv., Inc., 416 Md. at 64). The second
allows the Court to overrule its own precedent “when there is a showing that the precedent
has been superseded by significant changes in the law or facts.” Id. In essence, we “need
not adhere to stare decisis where changed conditions or increased knowledge have
rendered [our] precedent unsound in the circumstances of modern life, a vestige of the past,
[and] no longer suitable to [the] people[.]” Thompson v. UBS Fin. Servs., Inc., 443 Md.
47, 58 (2015) (first alteration added) (citation and internal quotation marks omitted).
Neither exception to the doctrine of stare decisis applies here. Although short, the
Lee Court’s analysis was not “clearly wrong and contrary to established principles.”
Wallace, 452 Md. at 582 (quoting DRD Pool Serv., Inc., 416 Md. at 64). The plain
language approach taken by the Court in Lee, in conjunction with its reliance on the General
Assembly’s amendment adding the word “knowledge” to the vehicular transport modality,
accords with this Court’s fundamental rules of statutory construction. Our statutory
analysis of CR § 4-203 confirms the Lee Court’s statutory interpretation of Article 27, §
36B(b). Unlike the Lee Court’s analysis, we checked our statutory interpretation of CR §
4-203 against the Supreme Court’s longstanding and well-founded rules of statutory
construction for ascertaining the legislature’s intent as to the mens rea element. Still, we
determined that the General Assembly made clear its intent that CR § 4-203(a)(1)(i) impose
strict liability.
We also disagree with Mr. Lawrence that this Court’s decision in Lee is in conflict
with our decisions in Dawkins v. State and State v. McCallum. 313 Md. at 638; 321 Md.
451 (1991). In Dawkins v. State, this Court set forth several considerations for determining
30
whether the General Assembly intended for a statute to set forth a strict liability “public
welfare offense.” See 313 Md. at 643. The Court subsequently adopted the Dawkins
factors in McCallum, 321 Md. at 456. Notably, however, the statutes at issue in those cases
are distinguishable from CR § 4-203 because they were entirely silent as to mens rea.
Furthermore, given the strong indicia of legislative intent here, we need not apply the
Dawkins factors to determine whether the General Assembly intended to classify CR § 4-
203 as a regulatory “public welfare offense.”
In Dawkins, this Court addressed whether “knowledge” was “an element of the
offenses of possession of a controlled dangerous substance and possession of controlled
paraphernalia under Maryland Code (1957, 1987 Repl. Vol.), Art. 27, § 287(a) and (d).”
313 Md. at 639–40. The defendant in that case, Leonard Dawkins, was arrested in a
Baltimore City hotel room after police officers searched a tote bag that he was holding and
found both heroin paraphernalia and heroin residue inside. Id. at 640. Mr. Dawkins
testified at trial that the tote bag belonged to his girlfriend and that he had no knowledge
of its contents. Id.At the close of evidence, the Circuit Court for Baltimore City instructed the jury on
the elements of Article 27, § 287(a) and (d), and declined to include “knowledge” as an
element of either crime. Id. at 641. The Court of Special Appeals affirmed, holding that
neither Article 27, § 287(a) nor (d) prescribed a mens rea requirement. Id. This Court
reversed and, in citing to Morissette, recognized that at common law, “a crime occurred
only upon the concurrence of the individual’s act and his guilty state of mind.” Id. at 643
(citing Morissette, 342 U.S. at 251–52). The Court also recognized the history of strict
31
liability offenses in the public welfare context and their common characteristics; how they
are: (1) “generally regulatory in nature,” (2) generally involve light penalties, and (3)
generally put the defendant “in a position to prevent the violation from occurring.” Id. at
644–65 (citation omitted). Where the text and statutory structure of Article 27, § 287(a)
and (d) suggested that the General Assembly intended for “possession” to require a
“knowingly” mens rea, and neither crime was a “public welfare offense,” the Court held
that the General Assembly did not intend for its omission as to the mens rea element to
dispose of that element altogether.
Although the General Assembly omitted mens rea as an element of the statute in
Dawkins, that statute was derived from the model language of the Uniform Controlled
Substances Act (“UCSA”). Id. Unlike the text of the Maryland statute, the model language
of the USCA only prohibited “knowing and intentional possession.” Id. at 646. Given this
extrinsic indication that the General Assembly may have intended to include mens rea as
an element, the Court turned to several out-of-state cases to resolve whether the General
Assembly intended for its omission of language indicating mens rea to create a strict
liability offense. See id. at 647–48.
In surveying those cases, this Court pointed out that a majority of states construed
the word “possession” as requiring a “knowingly” mens rea. See id. Thus, the General
Assembly’s use of the word “possession” in Article 27, § 287(a) and (d), especially in light
of its statutory definition in Article 27, § 277,19 inferred that “knowledge” was an element
19
Article 27, § 277 defined “possession” as “the exercise of actual or constructive dominion
or control over a thing by one or more persons.” (Emphasis added).
32
of possession of drug paraphernalia and possession of a controlled dangerous substance.
Id. at 648–51 (“[A]n individual ordinarily would not be deemed to exercise ‘dominion or
control’ over an object about which he is unaware[.]”); accord Parker v. State, 402 Md.
372, 407 (2007) (“A possession conviction normally requires knowledge of the illicit
item.”).
We have found no such indicia demonstrating that the General Assembly intended
to include mens rea as an element of CR § 4-203(a)(1)(i). In contrast to the relationship
between CR § 4-203(a)(1)(i) and (ii), the statutory structure in Dawkins supported the
assertion that the General Assembly intended to include mens rea as an element of Article
27, § 287(a) and (d). The statute at issue in McCallum is similarly distinguishable on the
ground that it was entirely silent as to mens rea and provided no indication that the General
Assembly intended to omit mens rea as an element.
In that case, the Court was tasked with determining whether “knowledge” was an
element of Md. Code (1984, 1987 Repl. Vol.), Transp. (“TR”) § 16-303(c).20 McCallum,
321 Md. at 452. In the absence of any concrete indication as to the General Assembly’s
intent, the Court applied the three Dawkins factors to determine whether, in omitting
language indicating mens rea, the General Assembly intended for TR § 16-303(c) to
20
TR § 16-303 provided: “A person may not drive a motor vehicle on any highway . . .
while the person’s license or privilege to drive is suspended in this state.”
33
impose strict liability as a “public welfare offense.” This Court held that it did not and
ascribed a “knowingly” mens rea to the driving while suspended statute.
However, nothing in McCallum speaks directly to the statute at issue here, nor does
it constitute “a showing that [Lee] has been superseded by significant changes in the law
or facts.” Wallace, 452 Md. at 582 (quoting DRD Pool Serv., Inc., 416 Md. at 64). Because
the General Assembly’s intent in enacting CR § 4-203(a)(1)(i) (and by extension, Article
27, § 36B(b)) is clear by its plain language and legislative history, the approach taken in
Dawkins and followed in McCallum does not supersede the Lee Court’s holding or call its
analysis in into question. See Owens v. State, 352 Md. 663, 672 (1999) (“The Supreme
Court . . . has never suggested that strict criminal liability may be imposed only for
regulatory offenses.”).
Lastly, Mr. Lawrence challenges the Lee Court’s holding on constitutional grounds.
While the scope of CR § 4-203(a)(1)(i) gives the Court some pause, we do not go as far as
finding the statute unconstitutional under the Due Process Clause of the Fourteenth
Amendment of the United States Constitution. As this Court explained in Owens v. State,
“constitutional due process does not impose a universal requirement that criminal laws
. . . include a mens rea element[.]” 352 Md. at 679. We further explained that, “[i]n
contrast to its policy of favoring inclusion of a mens rea element when interpreting a
statute, when interpreting the Due Process Clause[,] the Supreme Court has often endorsed
the concept of strict criminal liability.” Id. at 677. This much was made clear in both the
Supreme Court’s Morissette and Lambert decisions, supra.
34
Mr. Lawrence cites to Lambert in attempting to analogize CR § 4-203(a)(1)(i) with
an unconstitutional Los Angeles felon-registration statute. However, such a comparison is
inapposite. In Lambert, the Supreme Court considered the constitutionality of a Los
Angeles ordinance that criminalized visiting the city as a convicted felon without
registering with the authorities. 355 U.S. at 225. The issue in that case was “whether a
registration act of this character violates due process where it is applied to a person who
has no actual knowledge of [that person’s] duty to register, and where no showing is made
of the probability of such knowledge.” Id. at 227.
The Supreme Court explained that “[e]ngrained in our concept of due process is
the requirement of notice[,]” and that the notice requirement inherent in the Due Process
Clause “is equally appropriate where a person, wholly passive and unaware of any
wrongdoing, is brought to the bar of justice for condemnation in a criminal case.” Id. at
228. Because the ordinance punished entirely passive conduct, the Court struck down the
ordinance as unconstitutional. The Court reasoned, in quoting the academic work of
Supreme Court Justice Oliver Wendell Holmes,21 that “[a] law which punished conduct
which would not be blameworthy in the average member of the community would be too
severe for that community to bear.” Id. at 229 (quoting Oliver Wendell Holmes, Jr., The
Common Law (1881)). Because entirely passive conduct could subject a defendant to
21
Oliver Wendell Holmes, Jr. served as an Associate Justice of the Supreme Court of the
United States from 1902 to 1932. Justice Holmes published The Common Law while
working in private practice in Boston in 1881. Shortly thereafter, in 1882, Justice Holmes
accepted an endowed professorship at Harvard Law School and was appointed Associate
Justice of the Massachusetts Supreme Judicial Court. Justice Holmes would go on to
become Chief Justice of the Massachusetts Supreme Judicial Court in 1899.
35
conviction under the Lambert ordinance without any knowledge of their duty to register
with the city, the Court held that the ordinance was inconsistent with the requirements of
the Due Process Clause.
We disagree that CR § 4-203(a)(1)(i)’s prohibition on wearing, carrying, or
transporting a handgun on or about the person punishes entirely passive conduct, such that
it offends the requirements of the Due Process Clause. This Court has interpreted the term
“on or about the person” as including handguns that are in close proximity to the defendant.
See Corbin v. State, 237 Md. 486, 491 (1965) (“In order to support the conviction of the
carrying or wearing a dangerous or deadly weapon, it was necessary that the State establish
the fact that the accused was carrying the weapon or that it was in such proximity to him
as would make it available for his immediate use.”); see Lee, 311 Md. at 647 n.1 (citing
Corbin for the same proposition). More recently, in Jefferson v. State, the Court of Special
Appeals determined that a handgun under the passenger seat of a car was “about” the
defendant’s person because “the loaded gun was in close proximity to [the defendant’s]
person and was available for immediate use.” 194 Md. App. 190, 216 (2010). We disagree
with Mr. Lawrence’s argument that having a handgun so close to one’s person that it is
available for immediate use constitutes entirely innocent, passive conduct. It is for this
reason that we decline to strike down CR § 4-203(a)(1)(i) as violative of the Due Process
Clause.
However, we do think that this Court’s, and the Court of Special Appeals’, broad
application of the term “on or about” leaves some questions about the notice afforded to
defendants alleged of wearing, carrying, or transporting a handgun “about” their person.
36
While we do not see fit to invalidate CR § 4-203(a)(1)(i) on constitutional grounds, the
correct course of action in instances such as these is to signal to the General Assembly that,
“in light of these policy concerns, . . . legislation ought to be considered” to address the
scope CR § 4-203(a)(1)(i) given its classification as a strict liability offense. In re S.K.,
466 Md. at 57–58.
Nonetheless, we hold that CR § 4-203(a)(1)(i) sets forth a strict liability offense.
Thirty-three years ago, in interpreting the predecessor statute to CR § 4-203(a)(1)(i), this
Court’s Lee decision affixed strict liability to the crime of wearing, carrying, or transporting
a handgun on or about the person. Our interpretation of the text, statutory structure, and
legislative history of CR § 4-203(a)(1)(i) confirms such an interpretation, even in light of
the Supreme Court’s presumption in favor of including mens rea as an element of criminal
statutes. Moreover, in declining to amend the language of the offense in the thirty-three
years since Lee was decided, it is apparent that the General Assembly has acquiesced to
our holding in that case. The General Assembly has “wide latitude” to set forth strict
liability offenses as long as they are constitutional. Where CR § 4-203(a)(1)(i) neither
violates the Due Process Clause of the United States Constitution nor requires us to
consider whether the General Assembly intended to set forth a “public welfare offense,”
we see no need to depart from the doctrine of stare decisis.
CONCLUSION
For the foregoing reasons, we hold that CR § 4-203(a)(1)(i) sets forth a strict liability
offense that does not require the State to prove mens rea as an element. Thus, we affirm
the judgment of the Court of Special Appeals below and hold that the Circuit Court for
37
Harford County did not abuse its discretion in propounding the State’s requested pattern
jury instruction.
JUDGMENT OF THE COURT OF
SPECIAL APPEALS AFFIRMED. COSTS
TO BE PAID BY PETITIONER.
38