Hayes v. State, 1912

• Decision Date: 05 November 1998
• Docket Number: No. 1912,1912
• Citation: 720 A.2d 6,123 Md. App. 558
• Parties: John Edward HAYES v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

720 A.2d 6

123 Md. App. 558

John Edward HAYES v. STATE of Maryland.

No. 1912, Sept. Term, 1997.

Court of Special Appeals of Maryland.

November 5, 1998.

Gina M. Serra, Asst. Public Defender (Stephen E. Harris, Public Defender, on the brief), Baltimore, for Appellant.

Rachel Marblestone Kamins, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Sandra A. O'Connor, State's Atty. for Baltimore County, Towson, on the brief), for Appellee.

Submitted before WENNER, DAVIS and BYRNES, JJ.

BYRNES, Judge.

John Edward Hayes, appellant, was convicted by a jury in the Circuit Court for Baltimore County of robbery with a dangerous or deadly weapon, robbery, use of a handgun in the commission of a felony, and assault. After merging the lesser offenses into the greater offenses, the trial court sentenced appellant to twenty years imprisonment for robbery with a deadly weapon and a consecutive five-year term without parole for the handgun violation. Appellant presents two questions for review, which we have rephrased, reordered, and renumbered for clarity:

I. Was the evidence sufficient to sustain his conviction for robbery?

II. Did the trial court err or abuse its discretion in a) substituting an alternate juror after the jury had retired to deliberate the verdict; b) failing to consider other options before substituting the alternate juror; c) excusing a juror without first questioning her to determine whether dismissal was warranted; or d) failing to question the alternate juror about his post-dismissal activities before re-seating him on the jury?

Finding no error or abuse of discretion that warrants reversal, we affirm the judgments.

FACTS

Shahzad Malik owns and operates a Shell gas station and convenience store located at the corner of Edmondson Avenue and North Bend Road, in Baltimore County. His father, Mohammed, is employed as a cashier at the convenience store.

On the evening of June 30, 1997, Mohammed was working at the convenience store when a woman arrived and asked to be let inside. The doors to the store were locked as they routinely were after dark. Because the woman looked "nice," Mohammed let her in. As she entered the store, a man later identified as appellant entered behind her. He remained inside the store for approximately fifteen to twenty minutes. When appellant did not make a purchase, Mohammed became suspicious. Mohammed approached appellant and asked, "Sir, how can I help you?" Appellant responded absent-mindedly, indicating that he was only looking at the merchandise. A few minutes later, he purchased a few snacks and left.

The next morning, Mohammed and Shahzad were working at the store. At about 10:00 a.m., Mohammed spotted appellant through the store windows and saw him walk around the side of the building toward the entrance. Mohammed recognized appellant as the suspicious man who had lingered inside the store the previous evening.

When appellant reached the door, he pulled a red ski mask over his head. At that moment, Shahzad was behind the counter and Mohammed was standing approximately seven to eight feet from him. Once inside the store, appellant walked toward Mohammed and Shahzad and brandished a handgun. He alternated pointing the gun first at Mohammed and then at Shahzad and ordered both men to put their hands up. They obeyed. Appellant then demanded that they give him the money in the cash register. Shahzad, who was closest to the register, quickly looked at his father. Mohammed told Shahzad to "open the cash register and just give him the money." Shahzad opened the register and handed appellant approximately $900.00 in cash. Appellant ordered the men to lie down on the floor. After they did so, appellant exited the store.

The men remained on the ground for about five seconds before getting up. Mohammed immediately called 911 while Shahzad hurried outside to follow appellant. Shahzad spotted appellant getting into a Toyota Camry in the store parking lot and caught a glimpse of the vehicle's license plate number as it sped away. Shahzad went back inside the store and reported his observations to Mohammed, who relayed the information to the 911 operator.

The next day, the police traced the license plate number provided by Shahzad to a vehicle that was owned by appellant and that matched the description Shahzad had given them. Shahzad later identified appellant's vehicle as the getaway car. The police also obtained a search warrant for appellant's apartment. In appellant's bedroom, they found a handgun underneath a chair. The barrel of the gun recovered by the police resembled the barrel of the gun used in the robbery. Appellant was arrested and charged with robbing Mohammed. He was not charged with robbing Shahzad.

Appellant denied any involvement in the robbery and provided an alibi. The police were unable to substantiate his story. At a lineup on July 10, 1997, Mohammed identified appellant as the robber. Additional facts will be recited herein as necessary to our discussion of the issues.

DISCUSSION

I.

At the close of all of the evidence, appellant moved the trial court for judgment of acquittal on the ground that the evidence was insufficient to support a conviction for robbery of Mohammed. Specifically, appellant argued that he could not be found guilty of robbing Mohammed as a matter of law because the evidence neither established that Mohammed was the store owner nor that he had handed over the money from the cash register. Appellant maintained that, at best, the evidence proved that he was guilty of robbing Shahzad, a crime for which he had not been charged. The trial court denied his motion. Appellant now contends that that ruling was in error.

The standard of review of the sufficiency of the evidence is whether, 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. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Albrecht, 336 Md. 475, 478-79, 649 A.2d 336 (1994).

Maryland retains the common-law definition of robbery, which is the "felonious taking and carrying away of the personal property of another, from his person or in his presence, by violence or putting in fear." Tilghman v. State, 117 Md.App. 542, 568, 701 A.2d 847 (1997) (citation omitted), cert. denied, 349 Md. 104, 707 A.2d 90 (1998). The "person or presence" element of the crime means that "the taking must be from the person or presence of the victim, as well as from his possession." Wayne R. LaFave & Austin W. Scott, Jr., 2 Substantive Criminal Law, § 8.11(c), at 442 (1986)(footnote omitted). Appellant argues, in essence, that the "person or presence" element of robbery is satisfied only when the stolen property is taken from its owner or from the person having physical possession of it and, therefore, because Mohammed neither owned the store nor was in actual, physical possession of the money in the cash register, there was insufficient evidence to convict appellant of robbing him.

Appellant's interpretation of the "person or presence" element of the crime of robbery is legally incorrect in two respects. First, it is well settled that ownership of property taken by force or threat of force is not a necessary predicate to robbery. See State v. Colvin, 314 Md. 1, 20, 548 A.2d 506 (1988); Tyler v. State, 5 Md.App. 158, 161, 245 A.2d 592 (1968), cert. denied, 398 U.S. 940, 90 S.Ct. 1846, 26 L.Ed.2d 274 (1970); Harrison v. State, 3 Md.App. 148, 152, 238 A.2d 153 (1968) (per curiam). The State need only prove that the robbery victim had lawful possession or custody of the property at the time of the taking. See Lee v. State, 238 Md. 224, 226-27, 208 A.2d 375 (1965); see also Creecy v. State, 235 Ga. 542, 221 S.E.2d 17, 19 (1975)("Robbery is a crime against possession, and is not affected by concepts of ownership."); State v. Cittadino, 628 So.2d 251, 255 (La.Ct.App.1993)(explaining that "it is the victim's greater possessory interest in the property stolen vis-a-vis the accused that is key in proving robbery").

In Harrison v. State, supra, 3 Md.App. 148, 238 A.2d 153, we affirmed the defendant's conviction for armed robbery of a store employee, explaining that the property need not have been taken from its owner. Id. at 152, 238 A.2d 153. To convict the defendant of robbery, it was necessary only that the State demonstrate that the property was taken "from someone who had custody over [it] and who had a legal interest or special property interest in the goods." Id. (citation omitted). We reasoned that the store employee had a sufficient interest in the money that was taken from the cash register because "she was in charge of the store at the time of the robbery, had authorized access to the cash register in making sales of the store merchandise and had custody and control of and responsibility for the moneys in the register." Id. at 153, 238 A.2d 153; see also State v. Cottone, 52 N.J.Super. 316, 145 A.2d 509, 514 (App.Div.1958) (explaining that the elements of robbery are satisfied when property is taken from an agent or employee of the owner).

In the case sub judice, the uncontradicted evidence adduced at trial established that Mohammed was an employee of the convenience store, that he was authorized to operate the cash register, and that he was responsible for the proceeds in the register. These facts were sufficient for a trier of fact reasonably to find that Mohammed was in lawful possession of the money that was taken in the robbery.

Second, we reject appellant's contention that his conviction should be overturned because there was no evidence that the money taken in the robbery was taken from Mohammed's actual, physical possession. The words "from his person or in his presence," as used in the common-law definition of robbery, make plain that the property taken need not be in the victim's physical...