Rothe v. State

Rothe v. State, No. 2454 of the 2018 Term, Opinion by Moylan J.
KUCHARCZYK V. STATE AND THE LEGAL SUFFICIENCY OF
EVIDENCE – THE CONTENTIONS – AN UNADORNED MOTION FOR
JUDGMENT – OVERWHELMINGLY SUFFICIENT EVIDENCE OF GUILT –
KUCHARCZYK’S ATTACK ON LEGAL SUFFICIENCY – BAILEY’S
COUNTERATTACK ON KUCHARCZYK – KUCHARCZYK GOES ON POST-
BAILEY – THE SOURCE OF THE PROBLEM – REQUIESCAT IN PACE – AN
UNPRESERVED CONTENTION
Circuit Court for Baltimore City
Case No. 118120008
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 2454
September Term, 2018
______________________________________
WAYNE ROTHE
v.
STATE OF MARYLAND
______________________________________
Meredith,
Gould,
Moylan, Charles E., Jr.
(Senior Judge, Specially Assigned),
JJ.
______________________________________
Opinion by Moylan, J.
______________________________________
Filed: August 2, 2019
Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.
2019-08-02
11:52-04:00
Suzanne C. Johnson, Clerk
Like a troubled spirit adrift on Walpurgis Night, an almost forgotten relic of long
repudiated caselaw eerily resurfaces to haunt the convictions of the appellant, Wayne
Rothe, for second-degree and fourth-degree burglary, for the malicious destruction of
property, and for theft in the Circuit Court for Baltimore City by a jury, presided over by
Judge Althea M. Handy. This holding should lay to rest that misbegotten ghost.
The Contentions
On this appeal, the appellant raised two contentions. He claims
1. that the State’s evidence was legally insufficient to sustain the convictions,
and
2. that Judge Handy erroneously imposed separate sentences for second-
degree burglary and for the malicious destruction of property.
An Unadorned Motion For Judgment
The only significant one of those contentions is that the State’s evidence was not
legally sufficient to support the convictions. We hold, on the contrary, that it was
abundantly sufficient. At the end of the State’s case (which was also the end of the entire
case), the appellant’s Motion for Judgment of Acquittal was unenlightening. The argument
was baldly conclusory.
Your Honor, at this time I’ll make a motion for judgment of acquittal. I’ll
submit on argument, it’s really based on credibility on Mr. Dowling the way
I see it.
THE COURT: Right.
[DEFENSE COUNSEL]: It’s a circumstantial case but it’s still, you
know, based on his credibility. So I’ll submit on argument other than that.
THE COURT: Okay. I’ll deny your motion then.
(Emphasis supplied).
Overwhelmingly Sufficient Evidence Of Guilt
Not a word was said to substantiate that challenge to the witness’s credibility. The
trial itself had been equally uneventful. The burglary and theft victim, Michael Shawn
Dowling, lived at 2132 Maisel Street in Baltimore City. He rented a garage at the rear of
that property from his neighbor, Joel Navarro. He regularly kept the garage locked and he
kept some valuable tools inside the garage, including 1) a large black toolbox with between
$300 and $400 worth of tools in it; 2) a pressure washer; and 3) a generator. Mr. Dowling
and the appellant were well acquainted with each other. The appellant lived in a “pop-up
camper,” which Mr. Dowling permitted him to park in his driveway at 2132 Maisel Street.
The burglary occurred on March 8, 2018, in the mid-afternoon. At approximately
2:30 p.m., Mr. Dowling went to pick up his daughter from school. Along the way, he saw
the appellant walking up Hollins Ferry Road. They chatted briefly. The appellant asked
Mr. Dowling where he was going. Mr. Dowling explained that he was on his way to pick
up his daughter at school. When Mr. Dowling returned home with his daughter at
approximately 3:30 p.m., he noticed that the door to his garage had been kicked in. The
lock at the bottom was gone. All of Mr. Dowling’s tools, moreover, were missing.
That testimony would have placed the burglary within the hour of 2:30 p.m. to 3:30
p.m. Actually, the time frame was tighter than that. Detective James Frauenhoffer of the
Baltimore City Police Department was assigned to the Regional Auto Theft Task Force.
He was aware of an outstanding arrest warrant for the appellant. On March 8, 2018, at
about 3:00 p.m., he received a phone call from someone at the Real Scrap scrapyard,
2
indicating that the appellant was then at that location. Detective Frauenhoffer immediately
responded. Real Scrap was just about a block away from 2132 Maisel Street. Detective
Frauenhoffer explained the nature of the scrapyard business:
THE WITNESS: Scrap yards take metal and they purchase it from
people when they deliver to the location, again, it could be any type of metal,
roofing material, tools, cars, half cars, anything, but they take it there to drop
off so they can receive money for the weight of metal.
When the appellant saw Detective Frauenhoffer approaching, he turned and ran. A
foot chase by several Baltimore City and Baltimore County officers through some nearby
heavily wooded areas followed, ultimately ending after the appellant and one of the
pursuing officers fell together into a stream. The appellant had brought to Real Scrap and
Detective Frauenhoffer recovered all of the property that had shortly before been taken
from Mr. Dowling’s garage. The property was subsequently identified by Mr. Dowling. At
Mr. Dowling’s, Detective Frauenhoffer also noted where the garage door had been kicked
in.
Kucharczyk’s Attack On Legal Sufficiency
The appellant did not take the stand, nor did he offer any witnesses or other
evidence. He never so much as offered an explanation to the police as to what he was doing
at Real Scrap with Mr. Dowling’s property. It is difficult to imagine a burglary and theft
case more open and shut than this. It was at this point in the analysis that the ghost of
Kucharczyk v. State, 235 Md. 334, 201 A.2d 683 (1964), was invoked in the appellant’s
brief. The challenge was to the legal sufficiency of the evidence, as a matter of law.
The evidence is insufficient to sustain the convictions. The State’s
circumstantial case relied entirely on Mr. [D]owling’s claim that the garage
3
had been broken into and that appellant did not have his permission to enter
the garage and take the items. However, Mr. [D]owling’s testimony was
inherently incredible, and was therefore insufficient. See Kucharczyk v.
State, 235 Md. 334, 337 (1964).
(Emphasis supplied).
It is here that we encounter, as legions of cases have encountered over the past 55
years, the massive disconnect between the case of Kucharczyk v. State, with its
microscopically narrow holding that has never been repeated, and the so-called
Kucharczyk Doctrine, a bloated attack on the legal sufficiency of evidence generally and
based ostensibly on the Kucharczyk case. In the actual case, the State’s entire case of guilt
had consisted of the uncorroborated testimony of a single witness whose testimony was
rent by unresolved contradictions about the very happening of the crime itself. The issue
was not credibility per se. It was rather the utter absence of any plausible assertion that the
crime had even taken place.
In the years since 1964, however, the defense bar has created a wildly exaggerated
Kucharczyk Doctrine that has taken on a mythic life of its own. The doctrinal mantra is
that any significant attack on the credibility of a State’s witness will serve to exclude that
witness’s testimony from evidence and thereby erode the legal sufficiency of the State’s
case by diminishing it to nothing. In his brief, albeit not before Judge Handy, the appellant
argued that Mr. Dowling’s testimony was subject to such exclusion by virtue of various
“inconsistencies, weaknesses, and deficiencies,” and, therefore, could not be relied upon
to prove the appellant’s guilt. The appellant argued:
After purportedly finding the garage door kicked in, Mr. Dowling did not call
the police on March 8. He testified, however, that within an hour, that same
4
day, the police went to his home. Detective Frauenhoffer, on the other hand,
testified that he had tried, “with negative results,” to contact Mr. Dowling on
March 8, and was only able to speak with Mr. Dowling the next day, March
9. Additionally, Mr. Dowling testified that he never gave appellant
permission to enter the garage. But he also told police that the camper in
which appellant was staying obtained electricity from an electrical outlet in
the garage. In the face of all these inconsistencies, weaknesses, and
deficiencies, Mr. Dowling’s testimony cannot be relied on to prove beyond
a reasonable doubt that appellant broke into the garage and took the tools
without Mr. Dowling’s own involvement and permission. As such, reversal
is required.
(Emphasis supplied).
Kucharczyk v. State, however, never held any such thing and the so-called
Kucharczyk Doctrine, of course, has no provenance beyond Kucharczyk v. State itself. The
heart of the problem has become one not of dealing with the Kucharczyk case itself but
with its post-Kucharczyk mantra. The so-called Kucharczyk Doctrine has never actually
prevailed, but its propaganda impact has remained a force to be reckoned with. In the
caselaw, it has become an unusual phenomenon.
Bailey’s Counterattack On Kucharczyk
This larger Kucharczyk phenomenon was before this Court in 1972, with its
exaggerated notion that witness credibility was not an issue of fact for the jury or even the
trial judge but could easily be transformed into a foreclosing issue of law for the reviewing
appellate court. We thought we had then and there laid that argument indisputably to rest
in Bailey v. State, 16 Md. App. 83, 294 A.2d 123 (1972). Apparently it has become
necessary to repeat the obsequies.
In Bailey we set out the proper context for making an assessment of testimonial
credibility in a criminal case.
5
Trial testimony frequently is replete with contradictions and
inconsistencies, major and minor. It is the quintessential approach of the
Anglo-American trial system to rely fundamentally upon cross-examination,
upon the introduction of prior inconsistent statements, upon impeachment
devices generally, upon sequestration, upon oral argument to ferret out and
to highlight such contradictions if and when they exist. It is then at the very
core of the common law trial by jury (and its counterpart of a court sitting as
a jury) to trust in its fact finders, after full disclosure to them, to assess the
credibility of the witnesses and to weigh the impact of their testimony.
16 Md. App. at 93–94 (emphasis supplied).
Bailey explained that “[t]he extreme and peculiar facts of Kucharczyk produced a
limited departure from that fundamental approach.” 16 Md. App. at 94. The conviction in
Kucharczyk was based exclusively on the testimony of the sixteen-year-old victim of the
crime, with a full scale I.Q. of only 56, whom a defense psychologist testified was
incompetent to testify. Although the victim ultimately testified that the crime had occurred,
he had testified on no fewer than three other occasions that it had never occurred. The Court
of Appeals characterized those sworn denials of the very occurrence of the corpus delicti
of the crime by the only witness to the very occurrence of the corpus delicti.
On direct examination the boy twice testified that nothing happened in the
public lavatory after the appellant gave him two drinks. On cross
examination, he testified that nothing happened in the garage. Thus there
were unqualified statements by the prosecuting witness that the crime for
which the appellant was convicted never in fact occurred.
235 Md. at 337–38 (emphasis supplied).
To the extent to which there might remain some spark of vitality in the ashes of
Kucharczyk, Bailey limned out the austere limits:
[T]he doctrine [is] confined to unresolved contradictions within a single
witness’s trial testimony as to the central issue of the case . . . .
6
16 Md. App. at 95. That sui generis fact pattern has, for the last 55 years at least, never
repeated itself. For the broader Kucharczyk Doctrine which he urges upon us, the appellant
can cite support neither in the caselaw nor in the academic literature. Bailey commented:
Some appreciation of the limited utility of the so-called Kucharczyk doctrine
may be gathered from the fact that it was never applied pre-Kucharczyk in a
criminal appeal and it has never been applied post-Kucharczyk in a criminal
appeal.
16 Md. App. at 94 (emphasis supplied). It was perilously short-lived.
Notwithstanding that limited utility, if any, of the so-called doctrine, the life of
Kucharczyk has nonetheless been amazing for the number of occasions on which it has
been invoked and for the equal number of situations in which it has been invoked in vain.
Its popularity has strangely never been diminished by its complete and utter
ineffectiveness. In its ability to punch above its weight, the case has enjoyed inexplicable
cachet. It seems to be something to say when you have nothing to say.
By way of antidote, Bailey assessed its well nigh universal inapplicability:
Kucharczyk does not apply simply because a witness’s trial testimony is
contradicted by other statements which the witness has given out of court or,
indeed, in some other trial.[1]
1
Citing Brooks v. Daley, 242 Md. 185, 191–192, 218 A.2d 184 (1966); Edwardsen
v. State, 243 Md. 131, 137–138, 220 A.2d 547 (1966); Wilson v. State, 261 Md. 551, 556–
558, 276 A.2d 214 (1971); Alexander v. State, 4 Md. App. 214, 218, 242 A.2d 180 (1968);
Moore v. State, 7 Md. App. 495, 502, 256 A.2d 337 (1969); Jones v. State, 10 Md. App.
420, 428, 270 A.2d 827 (1970); Tumminello v. State, 10 Md. App. 612, 616, 272 A.2d 77
(1971); Sun Cab Company v. Carter, 14 Md. App. 395, 407, 287 A.2d 73 (1972).
7
. . . Nor does Kucharczyk apply where a witness’s trial testimony contradicts
itself as to minor or peripheral details but not as to the core issues of the very
occurrence of the corpus delicti or of the criminal agency of the defendant.[2]
. . . Nor does Kucharczyk apply where the testimony of a witness is
‘equivocal, doubtful and enigmatical’ as to surrounding detail.[3]
. . . Nor does Kucharczyk apply where a witness is forgetful as to even major
details or testifies as to what may seem improbable conduct.[4]
. . . Nor does Kucharczyk apply where a witness is initially hesitant about
giving inculpatory testimony but subsequently does inculpate a defendant. [5]
. . . Nor does Kucharczyk apply where a witness appears initially to have
contradicted himself but later explains or resolves the apparent
contradiction.[6]
. . . Nor does Kucharczyk apply where a State’s witness is contradicted by
other State’s witnesses.[7]
2
Citing Bell v. State, 2 Md. App. 471, 472, 235 A.2d 307 (1967); Poff v. State, 3
Md. App. 289, 292–293, 239 A.2d 121 (1968); Chesley v. State, 3 Md. App. 588, 596, 240
A.2d 342 (1968); Eley v. State, 4 Md. App. 230, 234, 242 A.2d 175 (1968); Rasnick v.
State, 7 Md. App. 564, 568, 256 A.2d 543 (1969); Lindsay v. State, 8 Md. App. 100, 103,
258 A.2d 760 (1969); Gardner v. State, 8 Md. App. 694, 700–701, 261 A.2d 799 (1970);
Dorsey v. State, 9 Md. App. 80, 87, 262 A.2d 591 (1970); Pinkney v. State, 9 Md. App.
283, 295, 263 A.2d 871 (1970); Hunt v. State, 12 Md. App. 286, 292, 278 A.2d 637 (1971);
Crenshaw v. State, 13 Md. App. 361, 372, 283 A.2d 423 (1971).
3
Citing Thompson v. State, 5 Md. App. 191, 196–197, 245 A.2d 903 (1968).
4
Citing Gunther v. State, 4 Md. App. 181, 184–185, 241 A.2d 907 (1968).
5
Citing Wilkins v. State, 239 Md. 692, 693, 211 A.2d 308 (1965).
6
Citing Wilson v. State, 8 Md. App. 653, 674, 262 A.2d 91 (1970).
7
Citing Scott v. State, 2 Md. App. 709, 713–715, 237 A.2d 61 (1968); Tillery v.
State, 3 Md. App. 142, 148, 238 A.2d 125 (1968); Gunther v. State, supra; Hunt v. State,
supra.
8
. . . Nor does Kucharczyk apply where a State’s witness is contradicted by
defense witnesses.[8]
. . . Nor does Kucharczyk apply where a witness does contradict himself upon
a critical issue but where there is independent corroboration of the
inculpatory version.[9]
16 Md. App. at 95–97.
These myriad inapplicabilities highlight the distinction between infinite varieties of
damaged and impeached credibility, on the one hand, and the rare, rare case of truly
inherent incredibility, on the other hand. The insidious effect of the Kucharczyk Doctrine
is in its deliberate effort to blur the distinction by simply ignoring the numerous situations
in which exclusion, as a matter of law, would not apply notwithstanding some significant
challenge to credibility.
Syllogistically, the logical fallacy is in the lack of truth in the minor premise: All A
calls for exclusion, as a matter of law; B is an instance of A; Ergo, B calls for exclusion,
as a matter of law. The fallacy is that B, as a matter of fact, is almost never an instance of
A.
After cataloging the manifold inapplicabilities, Bailey concluded:
In each of those situations, our system of jurisprudence places reliance on the
fact finder to take contradictions or equivocations properly into account and
then to make informed judgment in assessing a witness’s credibility and in
weighing that witness’s testimony.
16 Md. App. at 97 (emphasis supplied).
8
Citing Johnson v. State, 3 Md. App. 219, 222, 238 A.2d 295 (1968).
9
Citing Tucker v. State, 237 Md. 422, 424, 206 A.2d 691 (1965); Chesley v. State,
supra.
9
Kucharczyk Goes On Post-Bailey
With that filing of Bailey v. State 47 years ago, we felt confident that the so-called
Kucharczyk Doctrine would not raise its head again. We were overoptimistic. The
invocation of the Kucharczyk Doctrine by defense counsel, civil as well as criminal, has
continued unabated. By the same token, the rejection of the Kucharczyk Doctrine has also
continued unabated. Seventeen years later, in Vogel v. State, 315 Md. 458, 554 A.2d 1231
(1989), Judge Orth noted for the Court of Appeals:
Although Vogel does not specifically refer to Kucharczyk v. State, 235 Md.
334, 201 A.2d 683 (1964), it seems that he would have its teachings reach
out to include the proposition that conflicting or impeachable testimony is so
unreliable as to be entitled to no weight. Kucharczyk does not remotely stand
for that proposition.
315 Md. at 471 n.6 (emphasis supplied).
In Pittman v. Atlantic Realty, 359 Md. 513, 546, 754 A.2d 1030 (2000), Judge
Rodowsky noted that from the filing of Bailey v. State (1972) “to date, no opinion of this
Court or of the Court of Special Appeals has encountered a set of facts that justified
applying the Kucharczyk approach.” Indeed, he pointed out that the so-called Kucharczyk
Doctrine would be even less efficacious in civil cases than it was in criminal cases.
Although the more recent Maryland cases that have rejected an
argument that contradictory evidence is legally insufficient have been
criminal cases, the restrictions that Maryland appellate courts have put on the
reach of Kucharczyk in criminal cases would seem to apply with greater
force in civil cases. Inasmuch as the standard of proof in civil cases is lesser
than in criminal, internally contradictory trial testimony should less readily
be found legally insufficient in civil than in criminal matters.
359 Md. at 547 (emphasis supplied). See also Owens-Illinois, Inc. v. Hunter, 162 Md. App.
385, 394, 875 A.2d 157 (“More recently, the Court of Appeals has suggested that, whatever
10
continuing vitality the Kucharczyk doctrine may have in criminal cases, it seems to be far
less applicable in civil cases because the lower standards of proof could tolerate less
consistent testimony.”), cert. denied, 388 Md. 674, 882 A.2d 287 (2005).
The drum-beat went rhythmically on. See, e.g., Montgomery v. State, 17 Md. App.
119, 127, 300 A.2d 218, cert. denied, 269 Md. 763 (1973); Grady v. State, 24 Md. App.
85, 87–90, 329 A.2d 726 (1974), aff’d, State v. Grady, 276 Md. 178, 345 A.2d 436 (1975);
Wright v. State, 24 Md. App. 309, 311–12, 330 A.2d 482 (1975); Walker v. State, 53 Md.
App. 171, 174–78, 452 A.2d 1234 (1982); Smith v. State, 302 Md. 175, 182–83, 486 A.2d
196 (1985); Hounshell v. State, 61 Md. App. 364, 380–81, 486 A.2d 789, cert. denied, 303
Md. 42, 491 A.2d 1197 (1985); Fuget v. State, 70 Md. App. 643, 654–55, 522 A.2d 1371
(1987); Cooley v. State, 157 Md. App. 101, 117–118, 849 A.2d 1026 (2004), rev’d, 385
Md. 165, 867 A.2d 1065 (2005); Brown v. State, 182 Md. App. 138, 182–84, 957 A.2d
654 (2008); Marcantonio v. Moen, 406 Md. 395, 410, 959 A.2d 764 (2008); Turner v.
State, 192 Md. App. 45, 81–83, 993 A.2d 742 (2010). These inexplicably persistent
reappearances could readily provide a theme for Bram Stoker.
The Source Of The Problem
The protracted life of the Kucharczyk Doctrine may, however, have served a useful
purpose. In law it can sometimes be helpful if a perplexing problem is allowed to marinate.
Only then, sometimes, does its essential nature become clear. Look past the details. They
can be distracting. In most basic terms, what are the fundamental principles in play? From
time immemorial, the assessment of testimonial credibility has always been the
fundamental responsibility of the factfinder, jury or trial judge, as a matter of fact. It is not
11
and never was the function of appellate review, as a matter of law. We begin with that as
an axiomatic truth.
In 1964, the extreme factual circumstances in a rare case that has not been replicated
in 55 years was the occasion for what seemed to be a limited and narrow departure from
that basic allocation of responsibility. In Kucharczyk, moreover, the Court of Appeals was
not really assessing credibility as such. It was analyzing, rather, whether a single shred of
contradictory testimony could qualify as a piece of probative evidence. That, of course, is
a proper appellate function, as a matter of law. The problem was that the analysis was
operating right at the borderline between an issue of fact and an issue of law. A blurred
boundary is by its very nature ambiguous and one should be very cautious about making
unambiguous pronouncements from such an unsure launching pad. The very discussion of
the proper legal issue inevitably and necessarily included some mention of credibility,
ordinarily a factual issue. From such a line-straddling context, it is inevitable that
resourceful attorneys will cherry-pick a word here or a phrase there and then reinsert those
words and phrases into far different and opportunistic contexts. It is a rhetorical stratagem
that comes with the territory.
In an extreme situation such as Kucharczyk, something that was accepted as
inherently or intrinsically incredible did not even call for an assessment of credibility by a
factfinder. The Court was measuring legal sufficiency, as a matter of law. It was not
deciding credibility, as a matter of fact. The clever rhetoricians who have since
promulgated the so-called Kucharczyk Doctrine, however, were able to take any passing
allusion to or mention of credibility out of a context, where credibility was not the issue,
12
and to create out of those very words a so-called doctrine dealing basically with credibility.
In the course of taking any reference to inherent credibility out of context, they sought to
transform any significant attack on credibility into a question of law for the appellate court
rather than leave it as a question of fact for the factfinder.
It has been a fallacious effort, but a clever one. What was posited as a proper legal
question of what to do with inherent incredibility was misused to embrace a wide variety
of unspoken factual questions determining what actually is inherent incredibility. That is
the essential disconnect between Kucharczyk v. State and the Kucharczyk Doctrine. The
disconnect can easily be missed, however, because it is subtle. The Kucharczyk Doctrine
blithely assumes that damaged credibility is inherent incredibility and proceeds
automatically to the exclusionary sanction.
The insidious impact of the Kucharczyk Doctrine has been in its attempt to take any
significant impeachment of testimonial credibility, of a dozen possible variations, and then
to take the assessment of that challenged credibility out of the hands of the factfinder, who
ordinarily assesses it as a matter of fact, and to transfer it to the appellate courts, as they
measure the legal sufficiency of the evidence, as a matter of law. That is a tectonic shift in
the allocation of adjudicative responsibility. The determination of what is inherently
incredible should remain with those whose primary job it is to assess testimonial
credibility.
More broadly, what are we saying? Unanchored words and phrases can make for a
treacherously unstable launching pad. Even modest shifts on the lift-off platform can
produce widely divergent trajectories. The “inherent incredibility” in Kucharczyk v. State
13
is not the “inherent incredibility” the appellant urges upon us in the present case and they
do not, therefore, propel us to the same destination. They might each be labeled “inherent
incredibility” but they are not the same “inherent incredibility,” and that is the critical flaw
in the appellant’s argument. It is, moreover, the essential flaw in most evocations of the so-
called Kucharczyk Doctrine. The implicit major premise of that doctrine is not a constant.
The launching pad is, in a word, unstable. Stare decisis, like the Aristotelian syllogism,
requires exactitude.
Requiescat In Pace
The simple message of this opinion is that the so-called Kucharczyk Doctrine, if it
ever lived, is dead. It has been dead for a long time. Forget it. Damaged credibility is not
necessarily inherent incredibility. That is all that needs to be said.
An Unpreserved Contention
Immediately after the jury announced its verdicts, Judge Handy proceeded to
sentencing. For his crime of second-degree burglary, the appellant received a sentence of
twelve years. The appellant was also sentenced to a term of 60 days for the malicious
destruction of property. That sentence was to run concurrently with the twelve-year
sentence for burglary.10 The appellant now contends that the conviction and the sentence
for the malicious destruction of property should have merged into the conviction for
second-degree burglary. He predicates his brief argument in support of that contention not
on the theory that the two offenses are the “same offense” pursuant to the required elements
10
The appellant was also sentenced to a term of six months for theft. That sentence,
however, is irrelevant to our consideration of the merger contention now before us.
14
test and not upon the “rule of lenity.” His predicate is based exclusively on the highly
questionable and essentially ambiguous notion of “fundamental fairness.”
At sentencing, the appellant raised no question with respect to merger or non-
merger. Ordinarily, the lack of any objection would mean that nothing has been preserved
for appellate review and that would end our consideration of this contention. Appellant’s
counsel, moreover, affirmatively agreed that merger was not called for. In speaking first
with the prosecutor, Judge Handy noted, “Malicious destruction, that wouldn’t merge.”
The judge then addressed defense counsel, who agreed that the burglary and malicious
destruction of property counts did not merge.
[Defense counsel], do you agree count that the only count that merges
is Count 2 [fourth-degree burglary] merges into Count 1 [second-degree
burglary]?
[DEFENSE COUNSEL]: Yes, I believe that’s --
THE COURT: Okay.
[DEFENSE COUNSEL]: -- I believe that’s true, Your Honor, because
there would be elements in malicious destruction and theft that aren’t --
THE COURT: Okay.
[DEFENSE COUNSEL]: -- necessary for the burglary. So I do agree
with that.
(Emphasis supplied).
Under no theory urged upon us by the appellant can we agree that the merger issue
is properly before us for review. Pair v. State, 202 Md. App. 617, 623–25, 643–49, 33 A.3d
1024 (2011), cert. denied, 425 Md. 397, 41 A.3d 571 (2012); Potts v. State, 231 Md. App.
398, 414, 151 A.3d 59 (2016). Therefore, we shall not review it.
15
JUDGMENT AFFIRMED; COSTS TO BE
PAID BY APPELLANT.
16