Creighton v. State

• Decision Date: 01 September 1986
• Docket Number: No. 436,436
• Citation: 520 A.2d 382,70 Md.App. 124
• Parties: Robert Thomas CREIGHTON v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 124

70 Md.App. 124

520 A.2d 382

Robert Thomas CREIGHTON v. STATE of Maryland.

No. 436, Sept. Term, 1986.

Court of Special Appeals of Maryland.

Feb. 4, 1987.

Mark Colvin, Asst. Public Defender (Alan H. Murrell, Public Defender on the brief), Baltimore, for appellant.

John S. Bainbridge, Jr., Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen., Baltimore, Sandra A. O'Connor, State's Atty. for Baltimore County and Joseph J. Steigerwald, Assistant State's Atty. for Baltimore County, Towson, on the brief), for appellee.

Submitted before GILBERT, C.J., and WEANT and ROSALYN B. BELL, JJ.

ROSALYN B. BELL, Judge.

Robert Thomas Creighton was convicted by a jury in the Circuit Court for Baltimore County of daytime housebreaking ¹ and theft. He was sentenced to 25 years imprisonment as an habitual offender for the housebreaking offense under Md.Code Ann. Art. 27, § 643B(c) (1957, 1982 Repl.Vol., 1986 Cum.Supp.), and a concurrent 18-month term for the theft conviction. Both Creighton and the State appeal. Creighton asks this Court to consider the following questions:

"1. Is the evidence insufficient to sustain the convictions?

"2. Did the State waive its right to seek a sentence of twenty-five years without the possibility of parole under Art. 27, § 643B(c)?"

The State cross-appeals, contending that the trial court should have sentenced Creighton instead to life imprisonment without the possibility of parole under Md.Code Ann. Art. 27, § 643B(b) (1957, 1982 Repl.Vol., 1986 Cum.Supp.). We will consider the issues raised on the cross-appeal after we resolve the question of the sufficiency of the evidence. Since Creighton's second issue on appeal only becomes significant because of our holding on the State's cross-appeal, we will consider his second challenge after our disposition of the cross-appeal.

I. SUFFICIENCY OF EVIDENCE

Creighton asserts that the evidence adduced at trial was insufficient to sustain his convictions for daytime housebreaking and theft. Specifically, he contends that the proof failed to establish his criminal agency. In reviewing this contention, we are guided by the Supreme Court's mandate in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979), wherein the Court set out the test for the sufficiency of evidence as follows:

"[W]hether, 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." (Emphasis in original.)

See also Bloodsworth v. State, 307 Md. 164, 167, 512 A.2d 1056 (1986).

At trial, Carolyn Fickus testified that on June 10, 1985 she saw her next door neighbor, Curtis Harris, leave his house. She stated that moments later she observed a man near the Harris house whose height, build and clothing reminded her of "somebody else" who "didn't belong in our community ... [b]ecause he had done some B & E's down there, and his prior record stated that he was not able to come back into our community." She further related that she watched the man walk past the Harris residence and disappear from her view. After she heard Harris's dog bark a few moments later, she walked over to Harris's house but saw nothing unusual. Fickus recounted that shortly thereafter Harris began shouting that "somebody was in his house, call the police." Fickus then telephoned the police and relayed Harris's description of the offender. She stated she later gave the police her own description of the man. Fickus described the man as between 5'10""'-6'0""' in height and very thin. She also stated that he had short dark hair, but she could not see whether he had any facial hair. She described his attire as including dark, straight-leg pants, a "conductor's cap," black boots, a black T-shirt displaying a white circle with a red emblem, and a chain hanging out of his left back pants pocket. She could not identify Creighton at trial as the man she saw in her neighborhood.

Harris took the stand and stated that after he arrived home around 12:15 p.m. he walked into his kitchen, and a man "walked out of the bedroom behind me, and he said someone had broken in your house, and I came in to see--first I asked him, what are you doing here? He said, Someone broke in your house, and I came in to see what I could do." When Harris went into the bedroom to see if any property was missing, the man ran out of the house. Harris stated he then shouted for Fickus and asked her to call the police. He gave her a description of the intruder to give to the police. Harris described the man as approximately 6'0""' tall, weighing 175-180 pounds, with dark brown hair, long sideburns, and a short "scrubby" beard. He stated the intruder was wearing a black shirt with white letters on it, blue jeans, and a bandanna tied around his head. He did not remember whether the man was wearing a cap. The property missing from Harris's house included jewelry and about $40 in quarters. Harris did not identify Creighton at trial.

Alvin Nehus, a taxicab driver, identified Creighton at trial and testified that on June 10, 1985 he picked up Creighton a few blocks from Harris's residence at approximately 12:55 p.m. and dropped him off at another location 10-12 minutes later. He stated Creighton paid his fare, $6.60, with $6.75 worth of quarters. Nehus recounted that after Creighton entered the cab, he asked if he could lie down because "several of his buddies ... was hunting for him to beat up on him...." According to Nehus, Creighton also told him that he wanted to lie down on the rear seat because he had been putting shingles on his grandfather's roof and he was "a little bit overcome from heat.... He was feeling bad." Nehus described Creighton as having a dark beard, whiskers and dark hair which at the time he picked him up appeared shorter than it was at trial. He did not recall how Creighton was dressed the day of the incident.

Officer James May testified that he received a call about a break-in at approximately 12:20 p.m. on June 10 and went to Harris's residence. There he interviewed Harris and Fickus. He stated that both individuals gave the same description of the offender. After following several leads, Creighton was arrested and the officer recounted that he interviewed Creighton at which time Creighton denied being in the area of the Harris house. Later in the interview, Creighton admitted being in the neighborhood and explained that "his girlfriend, Ruby Jacobs, had sent him down there in regards to some kind of a dope deal." May recounted that during the interview Creighton also stated at different times that he had been in the area of the Harris residence to visit a friend or to do some roof work. Creighton denied to May that he took a taxi but after being advised that he had been identified by the cabdriver, he stated he had taken a taxi because his car had broken down. In explanation for how he paid the fare, May recalled Creighton stated that quarters were "what he had on him at the time."

Ruby Jacobs was called as a State's witness and averred that she was having a relationship with Creighton at the time of this incident. She stated that on the morning of June 10, he was wearing "[a] pair of dark jeans and a brown leather hat." She could not recall what shirt he was wearing and in response to inquiry, she also could not recall whether Creighton owned a black T-shirt with white lettering and a red emblem.

It was stipulated at trial that entry into the Harris residence was accomplished "by breaking ... a pane of glass in the rear kitchen door and unlocking this door." It was also agreed on the record that the scene was processed by the crime laboratory, but no physical evidence or latent fingerprints were recovered.

Viewing this evidence in the appropriate posture, we hold the proof was sufficient to sustain Creighton's convictions. Circumstantial evidence can be sufficient to support a conviction. Finke v. State, 56 Md.App. 450, 468, 468 A.2d 353 (1983), cert. denied, 299 Md. 425, 474 A.2d 218, cert. denied, 469 U.S. 1043, 105 S.Ct. 529, 83 L.Ed.2d 416 (1984). Presence near the scene of a crime "when coupled with other suspicious circumstances may be enough to base a conviction upon circumstantial evidence." Yopps v. State, 234 Md. 216, 221, 198 A.2d 264, cert. denied, 379 U.S. 922, 85 S.Ct. 279, 13 L.Ed.2d 336 (1964).

In the case sub judice, Creighton was identified at trial by Nehus, a witness who placed him near the crime scene. The descriptions offered by the neighbor, the homeowner, and Creighton's girlfriend with respect to the offender's clothing and appearance were very similar and were also similar to that offered by Nehus. In addition, Creighton lied to police several times about his presence in the area and behaved suspiciously in the taxicab. He also paid for his ride in quarters. These facts combined presented sufficient proof for a rational trier of fact to conclude that Creighton had committed the offenses charged.

Creighton relies on Craig v. State, 14 Md.App. 515, 287 A.2d 330 (1972), and In re Appeal No. 504, Sept. Term, 1974, 24 Md.App. 715, 332 A.2d 698 (1975), to support his conclusion that Fickus's and Harris's failure to identify him at trial mandates reversal. Both these cases were tried by the court rather than by a jury and are otherwise factually distinguishable. In Craig, Craig and another boy were accused of breaking into the home of Mrs. Hines. The only evidence adduced to support Craig's conviction was Hines's observation of someone breaking glass and entering her hall. She came face-to-face with the intruder but could not describe his facial features and Hines could not identify Craig at trial. Craig and his companion were apprehended by a State Trooper approximately one-half mile from the scene of the breaking. Judge Gilbert, now Chief Judge, speaking for this Court, ruled that the evidence was insufficient to sustain Craig's conviction. As...