Clark v. State

• Decision Date: 02 October 2009
• Docket Number: No. 0310, September Term, 2008.,0310, September Term, 2008.
• Citation: 188 Md. App. 185,981 A.2d 710
• Parties: James Lewis CLARK v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

981 A.2d 710

188 Md. App. 185

James Lewis CLARK v. STATE of Maryland.

No. 0310, September Term, 2008.

Court of Special Appeals of Maryland.

October 2, 2009.

Sherrie B. Glasser (Nancy S. Forster, Public Defender on the brief), Baltimore, for appellant.

Michelle W. Cole (Douglas F. Gansler, Atty. Gen. on the brief), Baltimore, for appellee.

Panel: DEBORAH S. EYLER, MATRICCIANI, LAWRENCE F. RODOWSKY (Retired, Specially Assigned), JJ.

RODOWSKY, J.

James Lewis Clark (Clark), appellant, is a lifelong thief and self-confessed heroin addict. On December 12, 2007, a jury in the Circuit Court for Montgomery County convicted him of multiple counts relating to the theft and use of credit cards stolen from a single victim. On March 13, 2008, he was sentenced to forty-five years in prison. His appeal presents the following questions:

"1. Was the evidence insufficient to sustain convictions for identity fraud, identity theft, and unauthorized disclosure of a credit card number?

"2. Did the trial judge impose an improper sentence?

a. Fundamental fairness and rule of lenity

b. Single Larceny Rule

c. Cruel and Unusual [Punishment]

"3. Should the conviction for theft over $500 merge into theft of a credit card under the circumstances of this case?"

Background Facts

On June 25, 2007, Dr. Kurt Schluntz, an orthopedic surgeon at Suburban Hospital Outpatient Center (the Hospital), reported that his wallet containing cash and credit cards was removed from his locker without his permission or knowledge. Dr. Schluntz testified "the locker door had been jammed open[.]"¹

The State's principal witness was Brian Kruse, the Executive Team Leader for Asset Protection for Target Corporation. He was employed at the Target store located at 20908 Frederick Road in Germantown, Maryland, where his responsibilities included protecting the store from theft and fraud offenses. On June 25, 2007, Mr. Kruse, by means of monitors in the store's security camera system room, observed a customer attempting to purchase a thirty-two inch Philips television set that retailed for $839. Mr. Kruse was alerted to the pending transaction when the customer attempted to use three different credit cards to pay for the TV, but all were declined. The customer next moved to an ATM machine located within the store and unsuccessfully attempted to withdraw cash. Then the customer went to the "Food Avenue" of the store where he made a cash purchase at Pizza Hut. The customer thereafter exited the store to the parking lot. Once in the parking lot, the customer, who was still visible on the Target camera system, discarded the ATM receipt.² When he arrived at his vehicle, he dropped what appeared to be a black wallet on the pavement and kicked it under the adjacent car. After testifying to the above facts, Mr. Kruse made an in-court identification of Clark as the customer whom he had observed by video surveillance attempting the TV purchase and ATM withdrawal and making the Pizza Hut purchase. Store records demonstrated that all three credit cards used in the attempted TV purchase were issued to Kurt Schluntz.

While Mr. Kruse was observing Clark, he contacted Detective David Hill of the Montgomery County Police Department. Detective Hill responded to the parking lot in an unmarked car and, in conjunction with other police units, blocked Clark's vehicle. Clark was in the driver's seat of the vehicle, and another man was in the passenger seat; both were arrested. Clark possessed $280 in $20 bills.³ By an inspection of the area surrounding the vehicle, the police recovered a black wallet. In the vehicle, stuffed down between the driver's seat and the center console, the police recovered credit cards issued to Kurt Schluntz by Sun Trust, American Express, Capital One Visa, and MBNA MasterCard. In the same location, the police found Dr. Schluntz's Blockbuster membership card, CVS photo ID, Care First Blue Cross/Blue Shield member card, and an Eddie Bauer store charge card. Also in the vehicle, Detective Hill recovered four Play Station 3(PS3) video games, a new PS3 game system, and a Toys `R' Us receipt dated June 25, 2007, bearing a serial number matching that of the particular PS3 game system in the car.

A witness from the Toys `R' Us store in Gaithersburg testified that when such items are purchased, the receipt will contain a serial number corresponding to that of the purchased item and that the product was valued at $599.99. Kurt Schluntz testified that he received a Sun Trust credit card statement indicating purchases from Toys `R' Us totaling $732.97. He further testified he did not make those purchases.

Kyle Boorstein, the building engineer at the Hospital, testified that there are surveillance cameras at the front entrance of the Hospital that record people entering and exiting the building. Mr. Boorstein viewed the surveillance tapes for June 25, 2007, with Detective Hill. The tapes show a man entering the Hospital and, later, the same man exiting the Hospital with items under his left arm. Detective Hill compared the Hospital's video surveillance to that of Target. He was able to determine that Clark was the man represented in both. Subsequently, Detective Hill made an in-court identification of Clark as the person shown on the tapes and the person whom he had arrested in the parking lot.

In the subject criminal cause, Clark was charged with seven counts of theft and identity fraud and found guilty on six.⁴ These six offenses were alleged to have occurred on June 25. They related to Dr. Schluntz.

Count 1 charged that Clark did "with fraudulent intent possess and obtain personal identifying information of Kurt Schluntz," in violation of Maryland Code (2002, 2006 Cum.Supp.), § 8-301(b) of the Criminal Law Article (Cr).

Count 2 charged that Clark "did knowingly and willfully assume the identity of Kurt Schluntz" in violation of Cr § 8-301 (c).

Count 3 charged that Clark did steal a Play Station 3 Game System and one game from Toys `R' Us, Inc., valued at over $500, in violation of Cr § 7-104.

Count 4 charged that Clark did steal Schluntz's Sun Trust credit card, in violation of Cr § 8-204(a).

Count 5 charged that Clark "did unlawfully use and disclose a credit card number" of Schluntz, namely, that of the Sun Trust issued credit card, in violation of Cr § 8-214.

Count 6 charged attempted theft from Target of the television set, valued at over $500.

The court sentenced Clark on March 13, 2008, to five years on Count 1; to five years on Count 2, to be served concurrently with the sentence on Count 1; to fifteen years on Count 3, consecutive to the sentence on Count 2; to ten years on Count 4, consecutive to the sentence on Count 3; to fifteen years on Count 5, concurrent with the sentences on Counts 3 and 4; and to fifteen years on Count 6, to be served consecutively to the sentences on Counts 1, 3, and 4. Thus, the sentences in the criminal cause before us total forty-five years.⁵

From the judgment of conviction, Clark appealed to this Court. Additional facts will be stated as necessary to the analysis of the issues presented.

I

Clark asserts that there was insufficient evidence to support convictions on Count 1 (Cr § 8-301(b)), Count 2 (Cr § 8-301(c)), and Count 5 (Cr § 8-214). He labels the sections respectively as "Identity Theft," "Identity Fraud," and "Unlawful Disclosure of a Credit Card Number." He argues that the conduct proven should have been charged under Cr § 8-206(a)(1), which prohibits use of a stolen credit card. His theory is that the Identity Theft and Identity Fraud statutes, as well as Cr § 8-214, were enacted after the criminal proscription of using a stolen credit card and were intended to address conduct that was not reached by that pre-existing statute. Clark suggests, as examples of Identity Theft and Identity Fraud, using "the card to procure access to the victim's accounts or to create new lines of credit in the victim's name[.]" We shall address the none-too-clear interrelationship between the statutes, infra. But, first, the State presents the argument that this issue has not been preserved.

Although Clark characterizes his argument as based on insufficient evidence, the argument essentially is that the facts proved by the State do not satisfy the elements of the crimes charged. In this respect, the preservation issue here is much like that presented in Moosavi v. State, 355 Md. 651, 736 A.2d 285 (1999). Moosavi was convicted for violating Maryland Code (1957, 1996 Repl.Vol.), Article 27, § 151A, which criminalized circulating or transmitting a statement or rumor concerning the location or possible detonation of a bomb or other explosive device by one who knew the statement or rumor to be false and who intended that it be acted upon. Moosavi contended in the trial court that the appropriate charge was under Article 27, § 9, proscribing the threat to explode a destructive explosive device. He did not renew this argument in this Court. Moosavi v. State, 118 Md.App. 683, 703 A.2d 1302 (1998). This Court reasoned that Moosavi had been inappropriately charged, but affirmed because the issue had not been raised on appeal. The Court of Appeals considered the merits and reversed the conviction. It reasoned that, if § 151A were clearly inapplicable to Moosavi's conduct, then, even if counsel had not preserved the issue, Moosavi "would be entitled to relief in an appropriate post conviction proceeding collaterally attacking his conviction." 355 Md. at 662, 736 A.2d at 290-91 (citing State v. Evans, 278 Md. 197, 211, 362 A.2d 629, 637 (1976); Franklin v. State, 319 Md. 116, 122, 571 A.2d 1208, 1210-11 (1990); Walczak v. State, 302 Md. 422, 427, 488 A.2d 949, 951 (1985)). As a further reason for considering the argument, the Moosavi Court held that the conviction under an entirely inapplicable statute could be reviewed on the theory that the resulting sentence was illegal and therefore could be challenged at any time. Id. at 662, 736...