Barnes v. State, 724

• Decision Date: 31 March 1976
• Docket Number: No. 724,724
• Citation: 354 A.2d 499,31 Md.App. 25
• Parties: Sandra BARNES v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 25

31 Md.App. 25

354 A.2d 499

Sandra BARNES v. STATE of Maryland.

No. 724.

Court of Special Appeals of Maryland.

March 31, 1976.

Robert S. Sherman, Baltimore, for appellant.

Michael James Kelly, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., William A. Swisher, States Atty. for Baltimore City and James Schneider, Asst. States Atty., for Baltimore City on the brief, for appellee.

Argued before ORTH, C. J., and GILBERT and MELVIN, JJ.

ORTH, Chief Judge.

On 5 March 1975 a Statement of Charges was filed in the District Court of Maryland, District 1, charging Sandra Barnes with shoplifting proscribed by Code, Art. 27, § 551A. She demanded a jury trial. Courts Art. § 4-301(2) and § 4-302(d). When the case came on for trial in the Criminal Court of Baltimore on 14 July 1975, the prosecutor informed the court, Baer, J., presiding: 'This is to be a statement of facts on a not guilty plea.' Barnes was rearraigned. Defense counsel said: 'The plea would be not guilty. We have had prior discussions with the State. We have agreed to proceed on a statement of facts. I believe my client understands what that is and how that works and we are ready, willing and able to proceed at this point, Your Honor.' The prosecutor gave a statement of facts:

'Your Honor, may it please the court, the statement of facts in this case would be as follows. If called to testify Special Officer Albert Jones employed by the Food-A-Rama Incorporated, a body corporate of the State of Maryland, located at 3420 Clifton Avenue would state that on March 5, 1975 at approximately eight-fifty in the evening he had occasion to be on duty in those premises at the Food-A-Rama at the address I have already indicated in the City of Baltimore. At which time he observed the defendant who at that time was standing in the line at the cashier located inside of the food store. At that time he observed her remove a two pound box of Domino sugar, property of the store, valued at $1.33, place the same in her purse which was a black shoulder bag which she was carrying at that time on her shoulder and zip up the bag. That he did not observe her pay for the sugar, but I have already indicated that at the time he saw her she was in line. He would identify the lady seated at the trial table next to Mr. Sherman as the lady that he saw. This did occur in the City of Baltimore. That would be the statement of facts. The officer is not present.'

The judge asked if there were any additions or corrections and defense counsel said:

'The only addition, Your Honor, or correction would be that I believe that the police officer would testify if he was here that Miss Barnes was standing fourth in line when he first accosted her and she had her hands full of other groceries. I think it was a cabbage and something else. I am not sure what and the purse was on her shoulder (with the sugar in it).'

Defense counsel moved for judgment of acquittal. Code Art. 27, § 593 and Maryland Rule 755, implementing Art. XV, § 5 of the Constitution of Maryland.

Of course, an accused must be acquitted if the evidence is not legally sufficient to sustain his conviction. 'To be sufficient in law to justify a conviction, the admissible evidence adduced must show directly, or circumstantially, or support a rational inference of, the facts to be proved from which the trier of fact could fairly be convinced, beyond a reasonable doubt, of the defendant's guilt of the offense charged.' Metz v. State, 9 Md.App. 15, 23, 262 A.2d 331, 335 (1970); see Robinson v. State, 17 Md.App. 451, 459-460, 302 A.2d 659 (1973). Thus, evidence is the means whereby a fact in controversy may be established or disproved. ¹ 1 Wharton's Criminal Evidence §§ 2-8 (13th ed. 1972). It is the function of the trier of fact be it court or jury, to determine the facts from the evidence before it. Ordinarily, in the conduct of a criminal case upon a plea of not guilty, the State offers evidence to establish facts tending to show that the crime charged was committed and that the accused committed it, that is, the State attempts to prove the corpus delicti and the criminal agency of the accused. The defense may deny, refute or dispute this evidence. It does so by offering evidence to establish facts tending to show that the crime charged was not committed, or, if it was, that the accused did not commit it, or if he did commit it, that he was not culpable. See Whitehead v. State, 9 Md.App. 7, 9-11, 262 A.2d 316 (1970). This inevitably results in conflicts in the evidence and it is the duty of the trier of fact to resolve those conflicts so that it may determine the facts upon which it may properly decide whether the accused was guilty or innocent. In resolving the conflicts, and making factual findings from the evidence, the trier of fact weighs that evidence and judges the credibility of the witnesses. The weight to be given evidence and the credibility of the witnesses are matters solely for the trier of fact. Weaver v. State, 226 Md. 431, 436, 174 A.2d 76 (1961). See Williams v. State, 5 Md.App. 450, 452-460, 247 A.2d 731 (1968), cert. den., 252 Md. 731 and 734 (1969). This is why, on appellate review of the sufficiency of the evidence when an action has been tried by the lower court without a jury, the appellate court may not set aside the judgment of the lower court on the evidence unless clearly erroneous after giving due regard to the opportunity of the lower court to judge the credibility of the witnesses. Maryland Rules 886 and 1086. It is also why, on appellate review of the sufficiency of the evidence, when an action has been tried before a jury, it has been said that the guilty verdict may be set aside only if there is no legally sufficient evidence or inferences drawable therefrom on which the jury could find the accused guilty beyond a reasonable doubt. Wilson v. State, 261 Md. 551, 563-564, 276 A.2d 214 (1971). See Williams v. State, supra, 5 Md.App. at 458-460, 247 A.2d 731.

The proper means to challenge the sufficiency of the evidence in the trial court is by a motion for judgment of acquittal. Rule 755, § a. It may be made by an accused at the close of evidence offered by the State or at the close of all the evidence. If the motion is not granted at the close of evidence offered by the State, the accused may offer evidence, but by so doing, he withdraws his motion. Rule 755, § b. ² In a criminal action tried before a jury, appellate review of the sufficiency of the evidence may be had only upon the denial of a motion for judgment of acquittal at the close of all the evidence. Lotharp v. State, 231 Md. 239, 240, 189 A.2d 652 (1963); Williams v. State, supra, 5 Md.App. at 455-456, 247 A.2d 731. In a criminal action in which the court is the trier of fact, the appellate court must entertain the issue of the sufficiency of the evidence when presented on appeal even in the absence of a motion for judgment of acquittal below. Williams,5 Md.App. at 456, n. 10, 247 A.2d 731. This is so because Rules 886 and 1086 expressly provide: 'When an action has been tried by the lower court without a jury, (the appellate court) will review the case upon both the law and the evidence . . ..'

At the time defense counsel moved for judgment of acquittal below, the facts had been established by agreement. Although not expressly presented as an 'agreed statement of facts', it is manifest that after the addition suggested by defense counsel, the facts, as given to that point, were not disputed. There was no evidence for the court as the trier of fact to weigh and no need to judge the credibility of a witness. There was no conflicting evidence which required resolution to enable the court to determine the facts. All that remained to be done was for the court to apply the law to the undisputed facts of the case. Problems arose when the court did so.

When defense counsel moved for acquittal he said: 'I would offer a motion for judgment of acquittal based on that statement of facts on the basis that the officer may have acted, I believe in this case, prematurely.' The court asked: 'How?' and counsel replied: 'She was standing in line to pay. She did not yet refuse to pay although she had according to the officer concealed the two pound box of sugar.' The transcript reads:

'THE COURT: Under the shoplifting law is not the act of shoplifting committed as soon as you conceal it?

MR. SHERMAN (Robert Sherman, defense counsel): No, Your Honor, under the shoplifting law the act is done as soon as one intends to steal it.

THE COURT: Doesn't the law indicate-

MR. SHERMAN: The act of concealing it is not necessarily synonymous with intention.

THE COURT: Doesn't the law specifically state that when you conceal it you have committed the crime.

MR. SHERMAN: No sir, not that I know of.

THE COURT: It does not. Is that 551A?

MR. SHERMAN: I believe it is, Your Honor.

THE COURT: Is that the section, 551A? In a mercantile establishment it is unlawful for any person to conceal any goods, wares, or merchandise.

MR. SHERMAN: With the intent-

THE COURT: Of course, then it refers to the intent.

MR. SHERMAN: I believe it says with the intent.

THE COURT: When you conceal it, you have the intent under this section. All right.'

What happened next completely changed the status of the trial. Without objection noted, defense counsel proffered evidence:

'(I)f Mis Barnes was called to testify, she would testify as follows. She was indeed standing in line. She had recently been out of the hospital where she had a D and C and some stitches. She was standing in line with her hands full of groceries. She had a two pound box of sugar which she placed in her pocketbook, which remained open at all times, to hold it. While she was waiting to pay she was accosted and arrested before she had a chance to get to the cashier to pay for the merchandise. She did not conceal the sugar. She did not have any intention to conceal it. She was merely holding it...