Allen v. State

• Citation: 935 A.2d 421,402 Md. 59
• Decision Date: 08 November 2007
• Docket Number: No. 5, Sept. Term, 2007.,5, Sept. Term, 2007.
• Parties: Ronald Robert ALLEN v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

935 A.2d 421

402 Md. 59

Ronald Robert ALLEN v. STATE of Maryland.

No. 5, Sept. Term, 2007.

Court of Appeals of Maryland.

November 8, 2007.

[935 A.2d 422]

Allison M. Sayers, Asst. Public Defender (Nancy S. Forster, Public Defender, on brief), Baltimore, for petitioner/cross-respondent.

Carrie J. Williams, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, on brief), Baltimore, for respondent/cross-petitioner.

Argued before BELL, C.J., RAKER, HARRELL, BATTAGLIA, GREENE, ALAN M. WILNER (Retired, specially assigned), and DALE R. CATHELL (Retired, specially assigned), JJ.

HARRELL, J.

This case reaches the Court through our grant of a Petition for Writ of Certiorari filed by Ronald Robert Allen (Petitioner) seeking review of a judgment of the Court of Special Appeals finding no error with the evidentiary sufficiency of his conviction of unauthorized use of a motor vehicle under Maryland Code, Criminal Law Article § 7-203 (2002). We also granted the State's Cross-Petition to consider whether the Maryland Legislature, in the course of its 2002 recodification of the substantive statutory criminal law, focusing particularly on Criminal Law Article ("CL") § 7-203, added an element to the crime of unauthorized use of a vehicle beyond that previously required under the predecessor statute.¹ We shall hold that the Legislature in its 2002 recodification did not add a new requirement such that a defendant must be shown to have been on the real property from where a vehicle is taken and to have participated in the taking of the vehicle in order to be convicted of unauthorized use under CL § 7-203. We further shall hold that the record evidence, and reasonable inferences drawable therefrom, were legally sufficient to convict Petitioner of unauthorized use. As a result, we shall affirm the judgment of the Court of Special Appeals.

I.

Ronald Robert Allen was tried in the Circuit Court for Prince George's County on three counts of theft and one count of unauthorized use of a motor vehicle. After a two-day trial, a jury convicted Allen under Maryland Code, Criminal Law Article § 7-203 (2002), of the crime formally entitled "unauthorized removal of property," but more commonly referred to as "unauthorized use" of an automobile. The parties do not dispute the direct facts.

Early on 28 October 2003, General Motors delivered several new Hummer motor vehicles to Moore Cadillac's Virginia dealership. While normally the delivery driver dropped the associated paperwork and two sets of keys for each Hummer into a night drop slot at the dealership, on this occasion he noticed that one of the Hummers, a gray-colored one, had only one set of keys. On 5 November 2003, when a prospective purchaser inquired about that Hummer, employees of the dealership could not locate it and reported it stolen.

The vehicle was located when Officer Gerald Caver of the Prince George's County Police Department noticed a gray Hummer, driven by Petitioner, during his patrol in the County on 5 December 2003. While checking on his in-board computer vehicle tag numbers in search of stolen tags, a "hit" came back for the Hummer leading him to stop the vehicle. Officer Caver checked the vehicle identification number with the dispatcher and confirmed the vehicle was the one reported stolen from Moore Cadillac's Virginia dealership. A single set of manufacturer's original keys were in the vehicle.

The grand jury charged Petitioner with felony theft, motor vehicle theft, unauthorized use of a motor vehicle,² and misdemeanor theft of the license tags. The State nol prossed the misdemeanor theft count at the close of its case-in-chief at trial. Allen moved for a judgment of acquittal on the other three charges. With regard to the count of unauthorized use, he argued that the State failed to establish the required elements, and specifically that the State did not offer any evidence that he entered on the property of the Virginia dealership and took the Hummer off its lot. His motion for acquittal was denied.

In his defense, Allen and his mother testified. His mother testified that Allen was in Florida when the Hummer disappeared from Moore Cadillac. Petitioner testified that he did not take the Hummer from the dealership and did not know that the Hummer was stolen. He claimed that the Hummer belonged to an acquaintance, Marcus Robinson, from whom he borrowed the vehicle on 5 December 2003 to go to breakfast. Marcus Robinson did not testify. At the close of all the evidence, Allen renewed his motion for judgment of acquittal. The court denied the motion and the case was sent to the jury.

The judge's instructions to the jury included ones consistent with the Maryland Pattern Instructions on the presumption of innocence, reasonable doubt, and the requirement of impartiality. The judge also instructed the jury that it

[i]s your duty to decide the facts and apply the law to those facts.

. . . .

In evaluating the evidence, you should consider it in the light of your own experiences. You may draw any reasonable inferences or conclusions from the evidence that you believe to be justified by common sense and your own experiences.

. . . .

There are two types of evidence, direct and circumstantial. The law makes no distinction between the weight to be given to either direct or circumstantial evidence.

No greater degree of certainty is required of circumstantial than of direct evidence. In reaching a verdict, you should weigh all of the evidence presented whether direct or circumstantial. You may not convict the defendant unless you find that the evidence when considered as a whole establishes guilt beyond a reasonable doubt.

You are the sole judges of whether the witness should be believed. In making this decision, you may apply your own common sense and every day experiences.

. . . .

You have heard testimony about Marcus Robinson who was not called as a witness in this case. If a witness could have given important testimony on an issue in this case and if the witness was peculiarly within the power of the defendant to produce but was not called as a witness by the defendant and the absence of that witness was not sufficiently accounted for or explained, then you may decide that the testimony of that witness would have been unfavorable to the defendant.

After explaining "intent" to the jury, the judge identified the elements needing to be proven in order to convict as to each of the three charges. With regard to the charge of "unauthorized removal of property" (unauthorized use), the judge stated:

Unauthorized removal of property. Without the permission of the owner, a person may not enter or be upon the premises of another and take and carry away from the premises or out of the custody or use of the other or the other's agent or a government unit any property including a motor vehicle.

No exceptions were taken to this instruction.

The jury found Allen guilty of one count of unauthorized use. He was sentenced to four years' imprisonment, all but 90 days suspended, with three years' probation upon release from incarceration.

On appeal to the Court of Special Appeals, Allen argued that the evidence presented at trial was not sufficient to support a conviction of unauthorized use under CL § 7-203. Allen v. State, 171 Md.App. 544, 551, 911 A.2d 453, 457 (2006). Specifically, he pointed to the language of the statute, last revised in 2002, asserting that the plain language requires proof both that a person, sans permission, entered or was present on the real property where the motor vehicle was taken and participated in the taking of such property from the premises or out of the custody or use of the owner. Id. In this case, the evidence did not establish sufficiently either that he was present at the Virginia dealership and removed the Hummer or, when discovered behind the wheel, that he knew that the Hummer was stolen. Id. In reply, the State argued that the 2002 revision of CL § 7-203 did not work a substantive change in the elements of the offense from the predecessor statute and case law interpreting it and that it only was necessary to prove that Allen participated in the continued use of the Hummer under circumstances manifesting an intent to deprive the true owner of possession. Id.

In its reported opinion, the intermediate appellate court traced the history of the unauthorized use statute. Id. at 551-54, 911 A.2d at 457-59. The court detailed the statute's several revisions and the case law interpreting the iterations. Id. According to the court, the case law decided prior to the 2002 revision supported the State's arguments. Id. at 554, 911 A.2d at 459. The court noted, however, that no on-point cases had been decided since the 2002 revision and that the revision worked a substantive change in the statute's meaning from that version existing before 2002. Id. Specifically, the court held that, under a plain meaning reading, the statute now requires proof both of entry upon the premises of another by a defendant and the unlawful taking and carrying away of property. Id. at 557, 911 A.2d at 460. Based on its view of the current statute, the court next considered the sufficiency of the evidence supporting Allen's conviction. Id. at 561, 911 A.2d at 463. The court noted Maryland's recognition that "a jury may infer, from the unexplained possession of recently stolen goods, that the possessor is the thief." Id. at 562, 911 A.2d at 463 (citing Painter v. State, 157 Md.App. 1, 12, 848 A.2d 692, 698-99 (2004)). Our appellate brethren concluded that the passage of one month between the discovery that the Hummer was missing from the Virginia dealership and the arrest of Allen behind the wheel of the vehicle in Prince George's County did not destroy the probative effect of that permissible inference. Id. at 562, 911 A.2d at 463-64. The court noted that the jury was free not to credit Allen's testimony and alibi evidence and also to consider that he...