Chow v. State

Decision Date27 July 2006
Docket NumberNo. 99, September Term, 2005.,99, September Term, 2005.
Citation393 Md. 431,903 A.2d 388
PartiesTodd Lin CHOW v. STATE of Maryland.
CourtCourt of Special Appeals of Maryland

Gregory D'Alesandro, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General of Maryland, on brief), Baltimore, MD for Respondent.

Argued before BELL, C.J., and RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA and GREENE, JJ.

CATHELL, J.

This case concerns whether the temporary gratuitous exchange or loan of a regulated firearm1 between two adult individuals, who were otherwise permitted to own and obtain a handgun, constitutes an illegal transfer of a firearm in violation of Maryland Code (1957, 1996 Repl.Vol., 2002 Supp.), Art. 27, § 442.2 The particular issue before us is the contextual meaning of the word "transfer," as it is used in § 442(d), "A person who is not a regulated firearms dealer may not sell, rent, transfer, or purchase any regulated firearm . . . ." (Emphasis added). Thus, we must decide whether a temporary gratuitous exchange or loan of a regulated firearm constitutes a "transfer" under § 442(d). In addition, we will discuss Maryland Code (1957, 1996 Repl.Vol., 2002 Supp.), Art. 27, § 449,3 which establishes the penalty for a violation of § 442(d), to determine the proper mens rea for such violation.

On July 31, 2003, petitioner, Todd Lin Chow, a District of Columbia Metropolitan Police Department officer and non-dealer of firearms, was charged with illegally transferring a regulated firearm pursuant to § 442. On November 25, 2003, a bench trial was held in the Circuit Court for Prince George's County. On December 1, 2003, the court issued its ruling, finding petitioner guilty. The court sentenced petitioner to sixty (60) days, suspended the sentence and imposed a two hundred dollar ($200) fine. A timely appeal was made to the Court of Special Appeals and on June 2, 2005, after hearing arguments, the court filed its decision affirming the decision of the Circuit Court. Chow v. State, 163 Md.App. 492, 881 A.2d 1148 (2005). Petitioner then timely filed a Motion for Reconsideration, which was denied on October 4, 2005. On October 19, 2005, petitioner timely filed a petition for writ of certiorari to the Court of Appeals. We granted certiorari on December 19, 2005. Chow v. State, 390 Md. 284, 888 A.2d 341 (2005).

Petitioner presented three questions in his Petition for Writ of Certiorari4 which we rephrase to consolidate and clarify the issues:

I. Whether the temporary gratuitous exchange or loan of a regulated firearm between two adult individuals, who were otherwise permitted to own and obtain a regulated firearm, constitutes an illegal "transfer" of a firearm in violation of Maryland Code (1957, 1996 Repl.Vol., 2002 Supp.), Art. 27, § 442, as "transfer" is utilized in subsection (d)(1), "A person who is not a regulated firearms dealer may not sell, rent, transfer, or purchase any regulated firearm...?" (Emphasis added).

II. Whether Maryland Code (1957, 1996 Repl.Vol., 2002 Supp.), Art. 27, § 449(f), which states, "any dealer or person who knowingly participates in the illegal ... transfer . . . of a regulated firearm in violation of this subheading ...," establishes a general intent or specific intent mens rea? (Emphasis added).

In response to the first question we hold that the plain language and legislative history of the "Regulated Firearms" subheading indicates that the word "transfer," as used in § 442(d), is used in an ownership context and does not apply to the situation extant in the case sub judice — that of a gratuitous temporary exchange or loan between two adults who are otherwise permitted to own and obtain regulated firearms. Although we need not reach the second question because of our disposition in regards to the first question, we will discuss the requisite mens rea required by § 449(f) because of the likelihood that the issue may come before the Court again. For the reasons that follow, we hold that the word "knowingly" in § 449(f), in the particular circumstance of the applicable statutory scheme at issue here, indicates a specific intent mens rea — which we find the petitioner not to have possessed.

I. Facts

We adopt, in part, the facts as stated by the Court of Special Appeals in its opinion below:

"[Petitioner's] friend, Man Nguyen, was the State's main witness at trial. Nguyen testified that, while driving his car on April 1, 2003, he was stopped by the Prince George's County Police Department for a broken taillight. At that time, the police searched Nguyen's vehicle, and discovered a Glock semi-automatic pistol (not the weapon that is the subject of this appeal). The pistol was properly registered in Nguyen's name, but he did not have a permit to carry it. The police confiscated it in connection with their investigation of a recent murder of one of Nguyen's friends.

"The following day, Nguyen contacted [petitioner]. Nguyen explained to [petitioner] that this gun and other guns at his home had been confiscated by the police, and he was `anxious' to buy another gun. He told [petitioner] that he needed to purchase a gun for protection, by which he meant `[h]ome security,' `[s]o, [petitioner] offered me his gun.'

"The two men arranged to meet later that day for lunch at a restaurant in Bowie, Maryland. Sometime during this meeting, [petitioner] gave Nguyen a nine millimeter, semi-automatic handgun that he had owned since 1996.

"Nguyen told [petitioner] that he wanted to test fire the weapon before purchasing it. The pair got into Nguyen's vehicle and headed to a firing range in Upper Marlboro. En route, Nguyen received a business call on his cellular telephone, requiring that he abort the trip to the firing range. Nguyen drove [petitioner] back to the restaurant where [petitioner's] car was parked and dropped him off. [Petitioner's] weapon remained in Nguyen's car. No money was exchanged between Nguyen and [petitioner].

"Soon thereafter, Nguyen contacted [petitioner] by telephone. Nguyen testified: `I was interested in buying it and I called him, and, you know, I told him I'd give it back to him but he said, that's cool, just keep it in the house and he'll pick it up.' Nguyen further testified that he anticipated the weapon would be returned to appellant `as soon as possible.'"

"Detective Donnie Judd testified as a State's witness. He reported that, on April 4, 2003, he and other members of the Prince George's County Police Department stopped Nguyen on a warrant to arrest him for having illegally carried the gun that was found in his car three days earlier. In the ensuing search of Nguyen's car, the police discovered [petitioner's] loaded handgun in the car's center console. Detective Judd ran an NCIC[5] check and determined that the handgun had not been reported stolen. The gun was test fired and determined to be operable.

"Nguyen was arrested and taken to the police station, where he gave a four-page statement. The first paragraph of the statement addressed how he had obtained [petitioner's] handgun, and that portion of the statement was admitted into evidence. It varied from Nguyen's trial testimony. Ngyuen wrote:

I know [sic] [petitioner] for 2-3 [years]. I was detain [sic] on 4-1-03 and PGPD took all my guns. Next [d]ay, I called [petitioner] and asked him if I could hold on to his gun until I can get my guns back in a week or two because I felt uncomfortable without a gun[.] We then met at Olive Garden att [sic] 4pm in Bowie and had lunch and after that he give [sic] me his 9mm, out of a bag in the front Passengers [sic] seat[.]

"Sergeant William Szimanski, of the State Police Licensing Division, Firearms Registration Section, performs background checks on persons purchasing regulated firearms in Maryland and deals with records concerning firearms purchases. He testified that the records related to [petitioner's] handgun reflect that [petitioner] bought the handgun in November 1996, and it was formally transferred to him on the 27th of that month, after completion of the weapon registration process. The records show no subsequent transfer of the handgun, and no application for a transfer of the gun from [petitioner] to Nguyen.

"Sergeant Guillermo Rivera, of the Office of Internal Affairs of the District of Colombia Metropolitan Police Department, also testified. He stated that appellant had not filed a stolen weapon report between November 17, 2001 and November 17, 2003.

"At the close of the State's case, [petitioner] made a motion for judgment of acquittal. [Petitioner] argued that § 442(d) does not cover his conduct, which was simply a temporary exchange of the handgun. In the alternative, [petitioner] argued that he did not `knowingly' violate the statute, as required by § 449(f), because the State did not prove that he knew the transferee, Nguyen, had not filed the application required by § 442(d).

"The State countered that [petitioner's] leaving the gun with Nguyen was a `transfer' of it, and therefore was covered by § 442(d). The State further argued that [petitioner] was aware of the requirements for transferring a handgun, because he had fulfilled those requirements himself when he purchased the gun in 1996. The State finally argued that the `plain meaning' of transfer does not necessarily include the conveyance of title, and encompasses a mere loan.

"After hearing from counsel on both issues, the [Circuit Court for Prince George's County] denied the motion. [Petitioner] then rested without putting on any evidence, and the court issued its ruling."

Chow, 163 Md.App. at 497-500, 881 A.2d at 1151-52 (some footnotes omitted).

The Circuit Court stated:

"The Court having reviewed the statute [§ 442(d)] and now the burden is on the State to prove beyond a reasonable doubt, the Court finds based upon the testimony of the State's witnesses that there was in fact a transfer in this case.

"The Court also finds that...

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