Smith v. State

REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 987
September Term, 2016
DANIEL NICHOLAS SMITH
.
v.
STATE OF MARYLAND
Eyler, Deborah S.,
Wright,
Zarnoch, Robert A.,
(Senior Judge, Specially Assigned),
JJ.
Opinion by Wright, J.
Filed: April 28, 2017
This appeal arises out of the criminal charges, jury trial, and guilty verdict that
resulted from events which took place on August 13, 2015.
Appellant, Daniel Smith, appeared before District Court Commissioner Marie Ann
Caron in Washington County following Smith’s arrest on a warrant. Caron imposed
money bail as a condition of Smith’s release. Smith became angry and shouted at Caron.
As a result, Smith was charged with threatening a State or local official.
On June 27, 2016, a jury trial was held in the Circuit Court for Washington
County. Smith was convicted by the jury and sentenced to three years’ incarceration, all
suspended, with nine months to be served in home detention, followed by a period of
probation.
Smith timely appealed, asking:
I. Did the trial court commit plain error in failing to require the jury to find
that the Appellant intended to threaten the complainant?
II. Did the trial court err in finding sufficient evidence to convict the
Appellant for threatening a State or local official in the manner charged in
the State’s indictment?
III. Did the trial court err in admitting testimony that the Appellant spat in
the direction of the complainant?
FACTS
On August 13, 2015, Caron met with Smith following his arrest (the “Initial
Appearance”). Caron testified that after she set money bail, Smith became furious.
Caron testified that Smith “exploded and started cursing, yelling profanities. He said,
‘Fuck you bitch.’” Caron testified that Smith also shouted, “I’m going to find you,” and
“You better find another job.” Caron further testified that Smith put his finger up, made
1
eye contact with her, and said, “I’m going to find you” while thrusting his finger into the
glass.
The guards then came to take him away. Deputy John Hinman of the Washington
County Detention Center testified that, as Smith started to leave the room, “he turned
back around and spit towards the Commissioner.”
In a pretrial motion in limine, defense counsel moved to exclude any mention of
why Smith had been arrested, citing Maryland Rule § 5-404(b), which generally prohibits
admission of evidence of the defendant’s prior bad acts, outside of the crime charged.
The prosecutor and defense counsel agreed that there would be no mention of the arrest
warrant or Smith’s criminal history. Rather, they agreed to stipulate to the jury that
Smith had been at the Initial Appearance to be given information about his rights, and
that the case for which he was coming in was subsequently dismissed.
Defense counsel also moved to exclude any testimony that Smith spat in the
direction of Caron at the conclusion of the meeting. The spitting occurred out of Caron’s
view. The circuit court denied the motion, finding that the testimony about the spitting
was admissible to provide context to Smith’s words. Defense counsel objected when
Deputy Hinman testified that Smith spat in the direction of Caron.
Before the circuit court instructed the jury, defense counsel renewed a motion for
judgment of acquittal. Defense counsel noted that the charging document in this case
narrowed the charge by alleging that Smith threatened to create bodily injury to a State
official, while omitting mention of other modes of threatening. That motion was denied.
2
Additional facts will be provided as they become relevant to our discussion,
below.
DISCUSSION
I. Intent to Threaten
Smith avers that the circuit court committed plain error, which requires reversal,
by failing to require the jury to find that Smith intended to threaten Caron.
Smith relies on Elonis v. United States, 135 S. Ct. 2001, 2012 (2015), where the
Supreme Court held that 18 U.S.C § 875(c), the federal threats statute, did not apply to
negligent conduct. According to the Supreme Court, the pattern jury instruction requiring
the government to prove only that a reasonable person would regard the communication
as a threat was erroneous and, thus, it reversed the conviction. Id. Smith asserts that the
jury instruction in Elonis is “substantially similar to the instruction propounded in the
instance case” and, therefore, employs a negligence standard of intent.
The State responds by distinguishing the law under which Smith was convicted,
Md. Code (2002, 2012 Repl. Vol.), § 3-708(b) of the Criminal Law Article (“CL”), which
includes an intent element, from the federal threats statute, which did not include an
intent element. The State also avers that the jury instructions adequately addressed the
intent requirement.
Smith recognizes that this issue was unpreserved for appeal because defense
counsel did not object at the time of the jury instruction. However, Smith asks that we
exercise our discretion to recognize plain error under Maryland Rules 4-325(e) and 8-
131. “Plain error is ‘error which vitally affects a defendant’s right to a fair trial.’”
3
Richmond v. State, 330 Md. 223, 236 (1993) (quoting State v. Daughton, 321 Md. 206,
211 (1990)). It is error that is “compelling, extraordinary, exceptional or fundamental to
assure the defendant a fair trial.” Id. (quoting State v. Hutchinson, 287 Md. 198, 203
(1980)).
The factors to be considered by an appellate court in deciding whether to review
jury instructions for plain error include the opportunity to use the unpreserved issue to
illuminate an area of the law, the egregiousness of the error, the likely impact of the
alleged error on the defendant, and the degree of lawyerly diligence or dereliction. See,
Austin v. State, 90 Md. App. 254, 268-72 (1992). In Austin, we stated:
On rarer occasions, we might even be influenced by the opportunity that the
notice of “plain error” might afford to illuminate a murky recess of the law.
The interpreting and molding of the law is as weighty a consideration in
appellate councils as is the correction of error in individual cases.
Id. at 271.
Smith asks that we exercise our discretion to review for plain error here. He
argues that each of the factors weigh strongly in his favor, most notably that this is an
issue of first impression since this is the first time the question has been raised since
Elonis. He also asserts that it would afford this Court an opportunity to address the
question of if a jury must be instructed to determine whether the defendant intended to
threaten as an element of the crime. For these reasons, we accept Smith’s invitation to
review for plain error.
4
We conclude that intent to threaten is indeed an element of the crime which must
be included in jury instructions, but hold that the jury was adequately instructed on this
element in the present case.
In Elonis, the petitioner was charged under 18 U.S.C. § 8-75(c) 1, and the jury
instructions were as follows:
A statement is a true threat when a defendant intentionally makes a
statement in a context or under such circumstances wherein a reasonable
person would foresee that the statement would be interpreted by those to
whom the maker communicates the statement as a serious expression of an
intention to inflict bodily injury or take the life of an individual.
135 S. Ct. 2007 (internal citations omitted). The Court held that requiring the
prosecution to prove only that a “reasonable person” would regard the communication as
a threat meant that the conduct was determined by a negligence standard. Id. at 2011.
The “reasonable person” standard “is inconsistent with the conventional requirement for
criminal conduct – awareness of some wrongdoing.” Id. (internal quotation marks and
citations omitted). The Court held that the prosecution must prove the defendant’s
subjective intent to threaten. Id.
In the present case, Smith was charged under CL § 3-708(b) which imposes an
intent requirement that 18 U.S.C. § 8-75(c) lacks. CL § 3-708(b) provides that, “A
person may not knowingly and willfully make a threat to take the life of, kidnap, or cause
1
18 U.S.C. § 8-75(c) reads:
Whoever transmits in interstate or foreign commerce any communication
containing any threat to kidnap any person or any threat to injure the person
of another, shall be fined under this title or imprisoned not more than five
years, or both.
5
physical injury to a State official, a local official, a Deputy State’s Attorney, an Assistant
State’s Attorney, or an Assistant Public Defender.”
Smith correctly states in his brief that the jury instruction was as follows:
A statement is a threat if it was made under such circumstances that a
reasonable person hearing or reading the statement would understand it as a
serious expression of an intent to physically injure a State Official. In
deciding whether the Defendant made a threat you may consider among
other circumstances the language the Defendant used and whether a
reasonable person hearing or reading the words and knowing all of the
circumstances would have considered the words to be a threat.
Smith asks that we read this instruction, derived from the Maryland Criminal Pattern Jury
Instruction 4:12.2, as substantially similar to the instruction in Elonis and, therefore,
requiring reversal.
Smith fails to recognize that this is merely an excerpt of the jury instruction. On
appeal, “instructions are reviewed in their entirety to determine if reversal is required.”
Fleming v. State, 373 Md. 426, 433 (2003).
Additional relevant jury instructions were as follows:
Intent is a state of mind and ordinarily cannot be proven directly
because there is no way of looking into a person’s mind. Therefore, a
Defendant’s intent may be shown by surrounding circumstances. In
determining the Defendant’s intent you may consider the Defendant’s acts
and statements as well as the surrounding circumstances. Further you may
but are not required to infer that a person ordinarily intends the nature and
probable consequences of his acts or omissions.
***
. . . knowingly, knowing is generally defined as having knowledge. Mr.
Smith acted knowingly if he realized what he was doing, was aware of the
nature of his conduct and did not act through mistake, accident,
carelessness or other innocent reason. The State has the burden of proving
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knowledge beyond a reasonable doubt. Knowledge can be established from
all the surrounding facts and circumstances. You may find Mr. Smith had
knowledge if he acted with an unlawful purpose and deliberately ignored
the obvious.
***
. . . willfully means an act that is done knowingly and with deliberate
intention. An act that is done merely because of mistake, accident,
carelessness or other innocent reason is not done willfully.
The Defendant is charged with threatening a State Official. In order
to convict the Defendant the State must prove, one, that the Defendant
communicated a threat to another. Two, that the threat was to physically
injure a State Official and, three, that the Defendant made the threat
knowingly and willfully.
***
A threat is knowingly or consciously made if the person writing or
speaking comprehends the meaning of the words used.[2]
Putting aside the differences in the statutes, namely that CL § 3-708(b) includes an
intent requirement where 18 U.S.C. § 8-75(c) did not, and assuming arguendo, that the
statutes are substantially similar 3 and that Elonis is therefore controlling, Smith’s
argument that reversal is required still fails.
2
This sentence was added as an additional instruction as requested by defense
counsel.
3
In Abbott v. State, we explained CL § 3-708 in a different context, and explained
that the predecessor to the current statute “was patterned on a substantially similar
provision, U.S.C. § 871(a), which prohibits threats to take the life of or inflict bodily
harm upon the President of the United States.” 190 Md. App. 595, 617 (2010) (citation
and footnote omitted).
7
In Elonis, the defense counsel requested a jury instruction that “the government
must prove that he intended to communicate a true threat.” 135 S. Ct. at 2007 (citation
omitted). The circuit court denied that request. Id. The Supreme Court stated that “[t]he
jury was instructed that the Government need to prove only that a reasonable person
would regard Elonis’s communications as threats, and that was error.[4] Federal criminal
liability generally does not turn solely on the results of an act without considering the
defendant’s mental state.” Id. at 2012 (emphasis added). The Court also stated:
[t]he presumption in favor of a scienter requirement should apply to each of
the statutory elements that criminalize otherwise innocent conduct. . . .
communicating something is not what makes the conduct “wrongful.” Here
the crucial element separating legal innocence from wrongful conduct is the
threatening nature of the communication. The mental state requirement
must therefore apply to the fact that the communication contains a threat.
Id. at 2011 (internal quotations and citations omitted).
Here, unlike in Elonis, the jury was instructed that the State must prove that Smith
made a threat “knowingly and willfully” and further that willfully means “with deliberate
intention” and where the speaker comprehends the words. The reasonable person
standard was not used to eliminate the mens rea requirement that is fundamental to find
criminal wrongdoing. To rule otherwise would require this Court to ignore the
requirement to review instructions in their entirety. Therefore, the jury instruction given
in this case adequately meets the Elonis holding that negligence is not sufficient to
support a conviction under the relevant threats statue.
4
In Elonis, the government too, dispensed with the intent requirement, arguing in
closing that it did not matter what Elonis thought at the time he made the threat. This
was contrary to the argument made by the State in its closing.
8
II. Sufficiency of the Evidence
Next, Smith avers that there was insufficient evidence to convict him for threating
a State official.
In reviewing the merits of a claim relating to the sufficiency of evidence, the
standard of review is “whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979)
(citation omitted). In assessing the sufficiency of the evidence presented at trial, the
limited question before us is not “whether the evidence should have or probably would
have persuaded the majority of fact finders but only whether it possibly could have
persuaded any rational fact finder.” Allen v. State, 158 Md. App. 194, 249 (2004)
(citation omitted), aff’d, 387 Md. 389 (2005). The Court views not just the facts, but “all
rational inferences that arise from the evidence,” in the light most favorable to the
prevailing party. Abbott, 190 Md. App. at 616. Appellate review should not involve
undertaking “a review of the record that would amount to a retrial of the case.” Winder v.
State, 362 Md. 275, 325 (2001) (citation omitted).
“[T]he general rule is that matters essential to the charge must be proved as
alleged in the indictment.” Green v. State, 23 Md. App. 680, 685 (1974) (citation
omitted). “[T]he evidence in a criminal trial must not vary from those allegations in the
indictment which are essential and material to the offense charged.” Id. (citation omitted).
Smith avers that “the State’s evidence presented at trial deviated from the essential
elements the State charged in its indictment.” The statute prohibits threats to “take the
9
life of, kidnap, or cause physical injury[.]” CL § 3-708(b). Smith asserts that the State
specified the distinct type of injury threatened, bodily harm, which therefore limited the
scope or type of threat that the jury could convict him for, but that the State then failed to
present any evidence that Smith threatened bodily injury.
Smith avers that here, the variance between the elements alleged and the evidence
presented was fatal to the conviction and requires reversal. To support this position,
Smith looks to McDuffy v. State, 6 Md. App. 537, 538 (1969), where an indictment
charged the defendant with forgery of an “American Oil Credit Card” but the evidence
proved the forgery of a receipt for purchased merchandise. We reversed the forgery
conviction on the grounds of insufficient evidence, stating “an individual cannot be
convicted of forging one instrument when the proof shows that he forged an entirely
different instrument.” Id. at 539. “When there is a material variance between the
allegata and the probata, the judgment must be reversed.” Green, 23 Md. App. at 685
(citation omitted). Smith asserts that the same is true here – that he “cannot be convicted
for threatening to cause bodily injury to a State official when the State’s evidence at trial
does not show that there was a threat to cause bodily injury.”
Smith misinterprets McDuffy, stating that the allegata was “bodily harm” but the
probata were nonspecific words. McDuffy would apply if the State had charged Smith
with threatening bodily injury (the allegata), but at trial, it attained a conviction by
proving that he threatened kidnapping (the probata). That is not the case.
Rather, what Smith is asserting is that the State failed to present adequate evidence
that the words Smith communicated to Caron threatened bodily injury. Smith asserts that
10
even if the statement, “I’m going to find you,” was indeed a threat to do “some harm,”
that “some harm” is not sufficient to constitute bodily harm beyond a reasonable doubt.
Smith states that “egging the complainant’s house, slashing her tires, or lobbying in front
of her office building to get her fired” are all types of “some harm” that are not
criminalized by the statute.
While Smith correctly identifies examples of harm that a jury could infer from the
statement, he fails to recognize that his burden is to persuade that no rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt when
considering the statements and circumstances. Jackson, 443 U.S. at 319.
The State responds that the words and actions used by Smith suggested that he was
going to harm Caron and the movements toward her, when viewed in context, sufficed
for a jury to find a threat of bodily injury. See State v. Rusk, 289 Md. 230, 246 (1981)
(“That threats of force need not be made in any particular manner in order to put a person
in fear of bodily harm is well established. Indeed, conduct, rather than words, may
convey the threat.”) (Citations omitted).
Here, the State presented evidence that numerous components of Smith’s behavior
coalesced to show that Smith threatened Caron with bodily harm, including that Smith
threatened to “find” her, he shouted obscenities at her, he made “violent motions” with
his body, and that he leaned as close to the glass barrier as he could and pointed at her
menacingly. The State further avers that Smith’s action of spitting at Caron is
particularly suggestive and notes that in a number of jurisdictions, spitting is sufficient to
support a conviction for battery or assault because it shows intent to harm the target. See,
11
e.g., Ray v. U.S., 575 A.2d 1196, 1199 (D.C. 1990); Hobbs v. State, 251 P.3d 177, 180
(Nev. 2011); Gilbert v. Commonwealth, 608 S.E.2d 509, 511 (Va. Ct. App. 2005). The
State concludes that these are all words and actions that Smith used to suggest that he was
going to harm Caron.
Viewing all rational inferences that arise from the evidence in the light most
favorable to the prevailing party, we affirm that a reasonable jury could have found that
Smith threatened Caron with bodily harm. Abbott, 190 Md. App. at 616.
III. Evidence that Smith Spat at Caron
Finally, Smith avers that the circuit court erred in admitting testimony that he spat
in the direction of Caron.
Defense counsel moved in limine to exclude evidence that Smith spat at Caron,
asserting that it occurred outside of the Initial Appearance. Defense counsel contended
that it should be excluded as irrelevant because it happened out of her sight and as unduly
prejudicial because the jury could draw harmful inferences regarding Smith’s character
and criminal propensity. The following exchange occurred regarding the admission of
the spitting:
THE COURT: Well, and to me that’s an uncharged act. I guess they - -
DEFENSE COUNSEL: Right. He’s not charged with a Second Degree
Assault here so I don’t - -
THE COURT: Having said that I don’t know that it’s inadmissible. I mean,
it’s part of the, his, part of his conduct as to his person and how is it not
admissible.
DEFENSE COUNSEL: Well, I think it simply paints a picture that is not
necessary to the charge of actually making a threat to a State official in this
12
case. It’s outside of her presence. He’s not charged with an assault. If
he’d been charged with an assault in this case we’d be having a different
discussion but he’s not. He’s simply charged with an oral threat with a
State official. There’s nothing in the language of Section 3709 that says a
gesture or a motion can constitute a threat. It has to be an oral or written
statement that’s a threat. Spitting is not an oral or written statement so I
think it is outside of what is relevant to the charge of threatening a State
official.
THE STATE: Your Honor, often times when you have a statement that is
not completely explicit like you do in this case you have to take the context.
The context is important. If he were laughing and joking and said this we
may not even be here. But the fact that he spit at the end of it after having
several outbursts is part of the context of whether he meant it as a threat
and whether the trier of fact can determine that it was a threat or not.
THE COURT: I do think that it’s necessary information. For example, if
instead of that if he, you know, were making a punching motion while it
may not have been charged as an intent to frighten assault it certainly
would be part of his demeanor and character during the time that these
statements were made.
DEFENSE COUNSEL: And if it had happened during the Initial
Appearance again I think it’s something that we’d be having a difference
discussion over but this happened outside the Initial Appearance. She
doesn’t even see it happen.
THE COURT: Right. But the statute - - The purpose of the statute is not to
limit what the person sees or is exposed to. The purpose of the statute is to
get to any, any threat made. I do think it’s a part of the relevant context. I
think it’s probative as to what was meant by the statements that were made.
And it’s not unfairly prejudicial. It’s not going to mislead the jury. It’s not
going to confuse the jury. It’s simply part of the context of what was said
or done.
Defense counsel objected during the trial when a State’s witness testified about the
spitting, properly preserving this question for review.
Maryland Rule 5-403 provides that “[a]lthough relevant, evidence may be
excluded if its probative value is substantially outweighed by the danger of unfair
13
prejudice, confusion of the issues, or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of cumulative evidence.” Whether
evidence is relevant under Maryland Rule 5-403 is reviewed for abuse of discretion.
Brooks v. State, 439 Md. 698, 708-09 (2014). “Abuse of discretion” has been said to
occur “‘where no reasonable person would take the view adopted by the [trial] court,’ or
when the court acts ‘without reference to any guiding rules or principles.’” Nash v. State,
439 Md. 53, 67 (2014) (quoting North v. North, 102 Md. App. 1, 13 (1994)). A ruling
reviewed for an abuse of discretion will not be reversed “simply because the appellate
court would not have made the same ruling.” Norwood v. State, 222 Md. App. 620, 643
(2015) (citation omitted). Rather, a trial court’s “decision is an abuse of discretion when
it is well removed from any center mark imagined by the reviewing court and beyond the
fringe of what that court deems minimally acceptable.” Id. (citation omitted).
Maryland Rule 5-404(b) prohibits admission of a defendant’s “bad acts” at trial,
subject to certain exceptions, reading in full:
Evidence of other crimes, wrongs, or acts including delinquent acts as
defined by [Md.] Code [1973, 2013 Repl. Vol.], Courts [& Judicial
Proceedings] Article, § 3-8A-01 is not admissible to prove the character of
a person in order to show action in conformity therewith. Such evidence,
however, may be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, common scheme or plan, knowledge,
identity, or absence of mistake or accident.
Maryland Rule 5-404(b) prohibits other bad acts evidence to protect against the
risk that a jury will assume that because a defendant committed other crimes, he is more
likely to have committed the crime for which he is on trial. Smith v. State, 218 Md. App.
689, 709-10 (2014). The prohibition “reflects a fear that jurors will conclude from
14
evidence of other bad acts that the defendant is a ‘bad person’ and should therefore be
convicted, or deserves punishment for other bad conduct and so may be convicted even
though the evidence is lacking.” Behrel v. State, 151 Md. App. 64, 124 (2003) (citations
omitted).
The Court of Appeals has established a three-part test for admission of other bad
acts. Jackson v. State, 230 Md. App. 450, 458 (2016). The first step is to determine
whether the evidence fits into one or more of the special relevancy exceptions, which
include motive, intent, absence of mistake, a common scheme or plan, identity,
opportunity, preparation, or knowledge. State v. Faulkner, 314 Md. 630, 634 (1989).
The second step is to determine whether the accused’s involvement in the other crimes is
established by clear and convincing evidence. Id. Finally, the court must carefully weigh
the necessity for and the probative value of the “other crimes” evidence against any
undue prejudice likely to result from admission. Id. at 635.
Smith asserts that the circuit court engaged in only a “cursory analysis” of the
evidence and failed to conduct the second prong of the three-part test. However, Smith
fails to recognize that if an act is part of the alleged offense, the act does not constitute an
“other” act to which the rule applies. See Dixon v. State, 133 Md. App. 325, 330 (2000),
rev’d on other grounds, 364 Md. 209 (2001). In Odum v. State, 412 Md. 593 (2010), the
Court of Appeals found no abuse of discretion in the trial court’s admittance of evidence
of the defendant’s “other” conduct in a kidnapping prosecution. The Court held that the
trial court properly allowed the jury to consider evidence of the robberies, carjacking, and
murders that surrounded the kidnapping for which the defendant on trial, because these
15
acts took place “during the criminal episode.” Id. at 615. Thus, the prohibition against
“other crimes” evidence does not apply to evidence of wrongs “that arise during the same
transaction and are intrinsic to the charged crime[.]” Id. at 611. The Odum Court defined
“intrinsic” in this context to mean, at a minimum:
other crimes that are so connected or blended in point of time or
circumstances with the crime or crimes charged that they form a single
transaction, and the crime or crimes charged cannot be fully shown or
explained without evidence of the other crimes.
Id.Therefore, before turning to the merits of Smith’s assertion that the circuit court
did not property apply the three-prong test, we must first determine whether the spitting
occurred during “the criminal episode,” and we hold that it did. Here, Smith’s spitting at
Caron was sufficiently connected with the orally communicated threats to form a “single
transaction” as identified by the Odum Court. The entire interview lasted only
approximately half an hour. No events intervened between the communications to Caron
and the spitting. The oral communications and the spitting all occurred in the same
geographic location. For these reasons, we agree that the spitting was sufficiently
connected to the single episode so as to be offered for context to the act, not as an “other”
act under Md. Rule 5-404(b).
Moreover, the purpose of the rule would not be served by excluding this
testimony. The purpose of the rule is to keep a jury from assuming the commission of
one crime based on the commission of another crime or act. Here, Smith’s conduct is
undisputed. Rather, it was the significance of the conduct that mattered. Therefore, the
16
spitting did not unfairly suggest that Smith committed the act, but rather, appropriately
provided context for the act.
Accordingly, the circuit court did not abuse its discretion in admitting the
testimony, and we need not turn to the merits of the argument regarding the application of
the Faulkner three-prong test.
JUDGMENT OF THE CIRCUIT COURT FOR
WASHINGTON COUNTY AFFIRMED.
COSTS TO BE PAID BY APPELLANT.
17