Dixon v. State

Citation302 Md. 447,488 A.2d 962
Decision Date01 September 1984
Docket NumberNo. 51,51
PartiesBentley DIXON v. STATE of Maryland. ,
CourtCourt of Appeals of Maryland

Julia Doyle Bernhardt, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on brief), for appellant.

Bernard A. Penner, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on brief), for appellee.

Argued before MURPHY, C.J., SMITH, ELDRIDGE, COLE, RODOWSKY and COUCH, JJ., and W. ALBERT MENCHINE, Associate Judge of the Court of Special Appeals (retired), Specially Assigned.

W. ALBERT MENCHINE, Judge.

In a non-jury trial in the Circuit Court for Baltimore City, Bentley Dixon was convicted of assault with intent to rob and sentenced to three years imprisonment. Upon appeal to the Court of Special Appeals, that Court by per curiam opinion filed on October 21, 1983, reversed the judgment of the Circuit Court. On November 21, 1983, 1 however, the State filed a motion for reconsideration that was granted on December 7, 1983, and the per curiam opinion was recalled. On January 6, 1984, the Court of Special Appeals affirmed the judgment below in an unreported opinion. 2 We granted certiorari to consider the cause.

The sole contention made by the defendant is that the evidence did not establish all elements of the offense charged. In such circumstances, we review the case upon the law and the evidence, but the judgment of the Circuit Court will not be set aside on the evidence unless clearly erroneous and due regard will be given to the opportunity of the lower court to judge the credibility of the witnesses. Maryland Rule 886.

In State v. Rusk, 289 Md. 230, 245, 424 A.2d 720, 728 (1981), we declared that in appeals in criminal cases, the constitutional standard for such review was "whether after considering 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 reasonable doubt." Otherwise stated, the findings of fact of the trial judge must be accepted unless there was no legally sufficient evidence or proper inferences therefrom, from which the court could find the accused guilty beyond a reasonable doubt. Tucker v. State, 244 Md. 488, 501, 224 A.2d 111, 119 (1966), cert. denied, 386 U.S. 1024, 87 S.Ct. 1381, 18 L.Ed.2d 463 (1967); McCray v. State, 236 Md. 9, 15, 202 A.2d 320, 323 (1964).

The essential elements of assault with intent to rob are these:

1. An assault on the victim,

2. By the accused,

3. With the intent to rob.

Bryant v. State, 4 Md.App. 572, 578, 244 A.2d 446 (1967), cert. denied, 252 Md. 730 (1969).

The Evidence

At 9:00 p.m. on June 6, 1982, the 24-year old female cashier of the self-service Citgo Filling Station in the 1700 block Russell Street 3 in Baltimore City was inside her booth. The booth was constructed with three glass walls 4 and a solid rear wall through which entry to the booth was provided by a door not open to the public. She sat behind a counter with a drawer that she could open for receipt of customer items. It was dark although the station itself was well lighted. She was alone in the station during the episode. While so located, the cashier observed a man coming up to the window. She asked if she could help him.

The following quotations from her testimony will serve to describe her version of the subsequent events:

"... I sat there and asked him could I help him. And he stated that--he didn't say nothing. And then I asked him again, may I help you. And by seeing his face, I also seen a paper underneath of his arm, and I thought something was going on.

* * *

* * *

Q. You say he had a newspaper?

A. Yes, sir, folded underneath his arm, with his hand underneath of it.

Q. Take this newspaper and just show Judge Karwacki how he had the newspaper folded, if you would, please. Stand up so the Court can see you.

(Whereupon, the witness doing same.)

A. Like this, under his arm (indicating).

Q. Okay.

The Court: Was it his right arm? Do you remember?

A. Yes, sir.

* * *

* * *

A. He approached the window where I was working.

Q. Go ahead.

A. And I noticed the newspaper. And I noticed his face, and I thought something was going on because he wouldn't say nothing. So, I opened the drawer and he put a note into the drawer. And the note said, 'I want all your money and hurry.'

Q. You picked the note up and read it?

A. I picked the note up and read it.

Q. After you had seen the newspaper and read the note, what did you think?

A. The guy was going to rob me.

* * *

* * *

Q. All right. Now, did you notice anything unusual about his face?

A. Yes. I notice this cold, hard look he had in his eyes.

Q. What happened? What did you do after you read the note?

A. I pushed the alarm, which is an arm's distance from underneath the cash register. And it was on the floor beside the safe, underneath the counter.

* * *

* * *

Q. What happened then?

A. Well, I went on the floor and I waited there for the police to come. And when I looked around to the side of the safe, I seen the guy running off to the side toward north on Haines Street.

Q. You say the guy, who do you mean?

A. The gentleman sitting at the table over there.

* * *

* * *

Q. Did the police come?

A. Yes, after I had to get up and call them.

Q. You called the police because the alarm didn't work?

A. The alarm didn't work.

* * *

* * *

Q. And I have in my hand a copy of the Daily Record, December 10th, '82, which is folded in half or actually quartered.

Now, you could see the man's hand; is that correct?

A. Right.

Q. And you could see that in that hand, in the right hand, that he held no weapon of any kind?

A. I thought it was a weapon.

Q. What, the newspaper?

A. Inside of the newspaper.

Q. But you said it was folded in this fashion and held--

A. As if something was inside of it, yes, sir.

Q. Something was on the other side?

A. Inside of it.

Q. Did you ever see any weapon whatsoever?

A. Not visible to my eyes.

Q. Did the man ever make any move with this paper as if he had a weapon?

A. He kept it still, pointed right towards me."

Dixon denied that he had been in the filling station on the evening in question.

On this conflicting evidence the trial judge declared that "I am convinced beyond a reasonable doubt that the Defendant was the person who approached Miss Cole on June 10, 1982, at the service station where she worked. ... I am also convinced beyond a reasonable doubt, for the reasons I have articulated in denying the Motion for Judgment of Acquittal at the close of the State's case, 5 that the defendant did at that time make an assault upon Miss Cole and that when he made that assault, he had performed [sic] an intent to rob her."

We have said time and time again that the question under Maryland Rule 886 "is not whether we might have reached a different conclusion from that of the trial court, but whether the trial court had before it sufficient evidence upon which it could fairly be convinced beyond a reasonable doubt of the defendant's guilt of the offense charged...." Cooper v. State, 220 Md. 183, 192, 152 A.2d 120, 124 (1959) (emphasis in original). See also Bird v. State, 231 Md. 432, 436, 190 A.2d 804, 806 (1963).

Elements of the Offense

We shall discuss the elements of the offense in the reverse order of that previously stated.

(a) Intent to Rob

In Davis v. State, 204 Md. 44, 51, 102 A.2d 816, 819 (1954), (a prosecution for assault with intent to murder) we said, "Since intent is subjective and, without the cooperation of the accused, cannot be directly and objectively proven, its presence must be shown by established facts which permit a proper inference of its existence."

The testimony of the cashier, the attitude of the accused, the demanding note, and the reasonable inferences deducible therefrom were found by the trial court to show an intent to rob. We cannot say that its conclusion was clearly erroneous.

(b) Criminal Agency

Judging the credibility of witnesses is one of the functions of the trial court and it may disbelieve exculpatory statements of an accused. Bird v. State, supra. The defendant was identified by the cashier. The trial court rejected the testimony of the accused and accepted that of the cashier. We cannot say that his decision was clearly erroneous. The evidence was legally sufficient to show the criminal agency of the accused. Turner v. State, 242 Md. 408, 416, 219 A.2d 39, 43 (1966) and cases there cited.

(c) Assault

In the trial court 6 and in this Court, 7 counsel for the accused has argued that the essential elements of assault have not been shown. Assault is a common law offense that has been the subject of many definitions. In his dissertation upon Private Wrongs, Blackstone observed that "injuries, affecting the limbs or bodies of individuals ... may be committed ... [b]y threats and menaces of bodily hurt, through fear of which a man's business is interrupted" and noted that "[an] assault which is an attempt or offer to beat another, without touching him; as if one lifts up his cane, or his fist, in a threatening manner at another; or strikes at him, but misses him.... This also is an inchoate violence amounting considerably higher than bare threats; and therefore, though no actual suffering is proved, yet the party injured may have redress by action of trespass vi et armis; wherein he shall recover damages as a compensation for the injury." 3 Blackstone, Commentaries * 120

In his subsequent disscussion of Public Wrongs, Blackstone declared:

"... I have nothing farther to add to what has already been observed [concerning assault] in the preceding book of these commentaries; when we considered them as private wrongs.... But, taken in a public light, as a breach of the king's peace, an affront to his government, and a damage done to his subjects, they are also indictable and punishable with fine and imprisonment; or with other ignominious corporal...

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