In re H.

• Decision Date: 31 August 2011
• Docket Number: No. 0944,2010.,Sept. Term,0944
• Citation: 200 Md.App. 341,27 A.3d 616
• Parties: In re ANTONETTE H.
• Court: Court of Special Appeals of Maryland

200 Md.App. 341

27 A.3d 616

In re ANTONETTE H.

No. 0944

Sept. Term

2010.

Court of Special Appeals of Maryland.

Aug. 31, 2011.

Brian M. Saccenti (Paul B. DeWolfe, Public Defender, on the brief), Baltimore, MD, for appellant.Brenda Gruss (Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, MD, for appellee.Panel: GRAEFF, WATTS, CHARLES E. MOYLAN, JR. (Retired, Specially Assigned), JJ.CHARLES E. MOYLAN, JR. (Retired, Specially Assigned), J.

The appellant, Antonette H., adjudicated to be delinquent in the Circuit Court for Prince George's County for an act that would have been theft if committed by an adult, presents us with a delightful dilemma. The evidence was legally sufficient to support the inference that the appellant was a receiver of stolen goods (or, in more modern terms, a criminal possessor) or to support the alternative inference that she was the original “handholding” thief for whom the hue and cry could have been raised (with full credit for both a caption and an asportation). The appellant is happy to accede to the State's choice of either option, but, she stoutly maintains, if she is to be treated as the receiver (or criminal possessor), then she was prosecuted in the wrong state. If, on the other hand, she is to be treated as the actual thief who took, stole, and carried away the property, then her conviction was fatally inconsistent with her acquittal for an act that was an indispensable component of the taking and carrying away. The appellant has successfully impaled the State on the horns of the dilemma.¹

The Common Basis For The Two Alternative Inferences

On August 11, 2009, at 6:30 A.M., Robert Tucker parked his 1995 Jeep Cherokee in the parking lot of his apartment building in Temple Hills, Prince George's County. At some time later that day (we are not told exactly when), he discovered that his car had been stolen. He had not, incidentally, left his keys in the car nor did he leave the motor running. At 4:30 P.M. on the next day, August 12, 2009, Officer Michael Milocheck of the Washington, D.C. Metropolitan Police Department observed the Jeep Cherokee being driven on Alabama Avenue in Washington Southeast. As he watched, the Cherokee suddenly struck a parked vehicle and came to a sudden and unintended stop. Three individuals abandoned the car and fled on foot. The appellant, who had been driving the car, was one of the three and was apprehended a short distance away.

The ignition to the car had been “punched out.” Officer Milocheck explained that car thieves often “punch out” an automobile's ignition, a recognized technique for starting a car without a key. “The vehicle had a punched ignition consistent with that of stolen vehicles.” When Mr. Tucker got his car back, he observed that one of the car's windows had been broken as well as the ignition's having been ripped out and that neither of these damages had been present when last he saw his car.

A. Possession of Recently Stolen Goods

When the appellant was first observed behind the wheel of the stolen car, the time lapse since its original theft was something less than 34 hours. She qualified, therefore, for the possession of “recently stolen goods.” Debinski v. State, 194 Md. 355, 359–60, 71 A.2d 460 (1950); Butz v. State, 221 Md. 68, 77, 156 A.2d 423 (1959); Cason v. State, 230 Md. 356, 358, 187 A.2d 103 (1963); Anglin v. State, 1 Md.App. 85, 93, 227 A.2d 364 (1967), cert. denied, 246 Md. 755 (1967).

B. The Inadequately Explained Possession

The appellant took the stand and testified that when she first saw the Jeep Cherokee “around” her Washington neighborhood, it was being driven by a male friend named Marcus, one of the three occupants of the vehicle at the time of the 4:30 P.M. collision. The appellant explained that Marcus let her drive the car. She did acknowledge, however, that she knew full well the car had been stolen when she asked to drive it. That brings us face-to-face with the second requirement for an inculpatory inference. How, if at all, was the possession explained?

In announcing his verdict, the trial judge stated: “I don't find the Respondent's testimony all that credible. I do find the State's witnesses very credible.” He then found the appellant guilty of theft on the basis of the inference of theft arising out of the unexplained possession of recently stolen goods. Let it be carefully noted at this point that the past participle “unexplained,” as used in the caselaw, refers not simply to the total absence of an attempted explanation but also to the failure to present a plausible explanation, to wit, an explanation that is actually believed. In Brewer v. Mele, 267 Md. 437, 449, 298 A.2d 156 (1972), the Court of Appeals was painstaking in its phraseology in this regard:

We have long and consistently held that exclusive possession of recently stolen goods, absent a satisfactory explanation, permits the drawing of an inference of fact strong enough to sustain a conviction that the possessor was the thief.

(Emphasis supplied). In People v. Galbo, 218 N.Y. 283, 290, 112 N.E. 1041, 1044 (1916), Judge (future Supreme Court Justice) Cardozo was also carefully precise:

It is the law that recent and exclusive possession of the fruits of crime, if unexplained or falsely explained, will justify the inference that the possessor is the criminal.

(Emphasis supplied). Judge Prescott wrote to the same effect for the Court of Appeals in Jordan v. State, 219 Md. 36, 45, 148 A.2d 292 (1959):

His very implausible account of his close position with relation to the stolen vehicle, ... may well have led the court to conclude that his story was concocted out of the whole cloth.

(Emphasis supplied). The appellant's attempted explanation in this case did not fly and was, therefore, no better than no explanation at all.

The Road to Consolidated Theft

The launching pad of an unexplained or unsatisfactorily explained possession of recently stolen goods was in this case fully operational. It then became a question of where does the inference, once launched, go from there.

The inference could take off in either of two directions. The two destinations, however, are not unrelated. For several centuries at least, larceny and receiving stolen goods were separate crimes with separate and distinct elements. Larceny, of course, was one of the nine original common law felonies (“MR. & MRS. LAMB”).² Although initially emerging out of the shadow of larceny as a form of accessoryship-after-the-fact, receiving stolen goods was fully recognized in England as a statutory crime in its own right by no later than 1827 by 7 & 8 Geo. IV, chapter 29, § 54. Maryland actually anticipated Parliament's passage of such a statute and created (or at least recognized) receiving stolen goods as an autonomous criminal offense by chapter 138 of the Acts of 1809.³ Jordan v. State, 219 Md. 36, 43, 148 A.2d 292 (1959) (“Our statutes do not define the crime of receiving stolen property, they merely prescribe the punishment therefor.”); Henze v. State, 154 Md. 332, 140 A. 218 (1928). Although receiving was regularly characterized as a larceny-related offense, the relationship between the two crimes was at times a tricky one. Unlike their latter-day, post–1979, descendants, they were once mutually exclusive. The original thief could not be a receiver, one of the explanations being that he could not unlawfully receive stolen property from himself. Conversely, it was always a successful defense to a charge of receiving if the alleged receiver were shown to have been the original thief.

By Chapter 849 of the Acts of 1978, effective as of July 1, 1979, however, Maryland brought both larceny and receiving stolen goods together (along with dozens of other larceny-related offenses) under the broad umbrella of the then new Consolidated Theft Act. State v. Burroughs, 333 Md. 614, 623, 636 A.2d 1009 (1994). That consolidated statute is now codified as Maryland Code, Criminal Law Article, §§ 7–101 through 7–110. The scope of the Consolidated Theft Act is set out, in part, in § 7–102(a):

Conduct described as theft in this part constitutes a single crime and includes the separate crimes formerly known as:

(1) larceny;

(2) larceny by trick;

(3) larceny after trust;

(4) embezzlement;

(5) false pretenses;

(6) shoplifting; and

(7) receiving stolen property.

Section 7–104 is the operative criminal prohibition. That section spells out six separate modalities for committing the now very generic crime of theft. It is subsection (a) that essentially covers what would formerly have constituted common law larceny, as the subsection provides, in pertinent part:

A person may not wilfully or knowingly obtain or exert unauthorized control over property.

(Emphasis supplied). In Moylan, Maryland's Consolidated Theft Law and Unauthorized Use (MICPEL, 2001), § 4.2, p. 24, it is observed:

Even if the notion of exerting control is broad enough to subsume the narrower instance of obtaining control, the focus on “obtaining” at least emphasizes the criminality of the defendant's conduct in the act of initial acquisition. It is the act of obtaining unauthorized control that most unambiguously embraces, but no longer makes necessary, what once were the trespassing, taking and carrying way elements of common law larceny.

(Emphasis supplied). This subsection (a) remains the “heartland” of the new and broader crime of theft.

By contrast, it is subsection (c) that brings into the fold the related criminal behavior that once constituted the separate crime of receiving stolen property. Subsection (c) provides, in pertinent part:

A person may not possess stolen personal property knowing that it has been stolen, or believing that it probably has been stolen.

(Emphasis supplied). Moylan, op. cit., § 6. 1, p. 39, notes with respect to the change from the crime of receiving into the crime of unlawful possession:

The key to understanding this aspect or subdivision of the theft law is to note and then...