Jones v. State

• Citation: 213 Md.App. 208,73 A.3d 1136
• Decision Date: 30 August 2013
• Docket Number: No. 660,Sept. Term, 2011.,660
• Parties: Kevin E. JONES v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

213 Md.App. 208

73 A.3d 1136

Kevin E. JONES

v.STATE of Maryland.

No. 660, Sept. Term, 2011.

Court of Special Appeals of Maryland.

Aug. 30, 2013.

Brian L. Zavin (Paul B. DeWolfe, Public Defender, on the brief), Baltimore, MD, for Appellant.

Jessica V. Carter (Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, MD, for Appellee.

Panel: GRAEFF, JAMES A. KENNEY, III (Retired, Specially Assigned), RAYMOND G. THIEME, JR. (Retired, Specially Assigned), JJ.

GRAEFF, J.

Appellant, Kevin E. Jones, was charged in the Circuit Court for Somerset County with multiple counts each of attempted first and second degree murder, first and second degree assault, and reckless endangerment, as well as one count of wearing, carrying, and transporting a handgun and use of a handgun in the commission of a felony. A jury convicted appellant of two counts of second degree assault, of Ms. Christine Johnson and Ms. Nikita Tindley, and three counts of reckless endangerment, of Ms. Johnson, Ms. Tindley, and Ms. Johnson's seven-year-old grandson, Devonte Bowen. The court sentenced appellant to ten years for the assault conviction against Ms. Johnson, ten years, consecutive, for the assault conviction against Ms. Tindley, and five years, suspended, for the conviction of reckless endangerment of Devonte Bowen. ¹

On appeal, appellant presents the following question for our review:

Was the evidence sufficient to support appellant's conviction for second degree assault of Christine Johnson?

For the reasons set forth below, we shall affirm the judgments of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND

On the evening of September 17, 2010, Ms. Tindley was in an apartment in Somerset County with, among others, her mother, Ms. Johnson, and her nephew, Devonte Bowen.² After midnight, there was a knock on the apartment door. Ms. Tindley opened the door and saw appellant, whom she had met earlier that evening, accompanied by two other males. She explained what happened next as follows:

He was like where the Niggers at[?] And I was like what Niggers? And he went down to his pants. So I closed the door. And my mom was on her way to the door I said, mom, don't go to the door they got a gun. And by th[at] time then shots was fired. So everybody was getting down in the house and stuff. And I called the police since I was the one that identify him.

At the time the shots were fired, Devonte was on the computer in the living room.

Ms. Tindley was terrified by the gun shots. She did not understand why appellant would shoot through the door when she had been standing there seconds earlier. Ms. Tindley heard three gunshots.

Ms. Johnson testified that, on the night of the shooting, she heard a knock on the apartment door. Ms. Tindley answered the door, and Ms. Johnson heard a voice ask: “[W]here them Niggers at[?]” Ms. Tindley said: “[N]obody here,” and she closed the door. Ms. Johnson began to approach the front door, but she ran into the bathroom after Ms. Tindley said: “[M]om, don't go to the door they got a gun.” Ms. Johnson told Devonte to get down and go to her room, and then three shots came through the door. Ms. Johnson was scared. Ms. Tindley called the police, and officers arrived at the scene within five minutes.

Officer Dave Adams, a member of the Princess Anne Police Department, was dispatched to the apartment at approximately 1:13 a.m. on September 18, 2010. Officer Adams met Ms. Johnson, her grandson, and Ms. Tindley at the scene. He recovered bullets from the center of the front door, the living room wall, and the wall of the back bedroom, where a bullet came to rest after passing through a child's playpen.

While conducting witness interviews in the apartment complex parking lot, Officer Adams observed a blue, compact, four-door car enter the lot. After the vehicle was parked several doors down from the crime scene, several individuals, including appellant, exited the vehicle. Ms. Tindley identified appellant as the individual who had fired a weapon through her apartment door, and Officer Adams took appellant into investigative detention.

Byron Johnson testified that he and Demetrius Rogers picked up appellant and Andre Schoolfield on the night of September 17, 2010. Appellant advised that, earlier that day, he had been involved in an altercation with two boys. They drove to Wink Lane Apartments, and Mr. Johnson heard a gun “getting loaded, heard the chamber set,” and he saw appellant with a gun “through [his] peripheral.” When they arrived at the apartments, appellant and Mr. Schoolfield exited the car.

From the front passenger seat of the vehicle, Mr. Johnson observed appellant and Mr. Schoolfield walk “to some lady's door.” Mr. Rogers got out of the car as appellant knocked on the door. Mr. Rogers “didn't go all the way to the door,” but rather, “[h]e stopped as soon as the lady answered the door.” At that point, the following occurred:

Heard [appellant] state where the two Niggers at. After that I couldn't hear what the lady had said all I heard was yelling. That's when [Mr.] Rogers turned around [and] came back to the car say he didn't want nothing to do with it. That's why I stayed in the car because I didn't want nothing to do with it.

Then after that I just seen the lady slam the door. And then we just heard three gunshots.

After the gunshots were fired, appellant and Mr. Schoolfield returned to the car, and the men left the scene. Appellant stated “that he had shot a gun out there twice earlier that evening,” explaining that he “was going to kill them [,] the two boys ... he was trying to get.” Appellant made a phone call, and a person in a blue sports car picked him up.

On cross-examination, Mr. Johnson admitted that he had been charged with attempted murder as a result of the events that evening. He denied, however, playing any role in the shooting. Mr. Johnson acknowledged that he had entered a plea of guilty to the charge of conspiracy to commit first degree assault, and the State had agreed to recommend a sentence of less than 18 months.

DISCUSSION

Appellant challenges only his conviction for second degree assault relating to Ms. Johnson. In that regard, he contends that the evidence was insufficient to support his conviction, asserting that “the State presented no proof that [appellant] was aware of Ms. Johnson's presence in the apartment at the time he fired the alleged shots,” and therefore, there was no proof that he had the specific intent to place her in apprehension of an imminent battery.³

The State responds in two ways. Initially, it contends that appellant failed to preserve this issue for review because he did not make this argument below. In any event, the State argues, the claim is without merit. It asserts:

[T]he evidence was sufficient to prove: 1) [appellant] had a specific intent to frighten the occupants or residents of the apartment, and Ms. Johnson was an occupant of the apartment; 2) [appellant] knew or believed that there were people in the apartment and he had a specific intent to frighten the people in the apartment; and 3) [appellant] heard Ms. Tindley warn Ms. Johnson and/or heard Ms. Johnson warn her grandson, and thus [appellant] knew Ms. Johnson was present in the apartment when he fired three shots into the closed door.

Alternatively, the State argues that “the doctrine of transferred intent is arguably applicable, and pursuant to that doctrine, [appellant's] specific intent as to Ms. Tindley and/or ‘the two boys' was transferred to Ms. Johnson.” We will dispose of this alternative contention quickly. Initially, the doctrine of transferred intent, which was not argued below, clearly is limited to murder, and it does not apply to the crime of assault. See Pettigrew v. State, 175 Md.App. 296, 314–15, 927 A.2d 69 (2007) (there is “ ‘no reason ... for making the transferred intent doctrine travel to [crimes] other than that of actual, consummated criminal homicides ’ ”) (quoting Harvey v. State, 111 Md.App. 401, 432, 681 A.2d 628 (1996)). Moreover, transferred intent applies to “bad aim cases,” where a defendant shoots at X, misses, and hits Y instead, not to cases of “mistaken identity,” where a defendant shoots at X and hits him, although he mistakenly believes X is Y. See Wieland v. State, 101 Md.App. 1, 45–46, 643 A.2d 446 (1994). Here, as discussed, infra, the jury could infer that appellant shot into the home at Ms. Johnson, even though he mistakenly believed that he was shooting at the boys with whom he earlier had argued. Thus, for several reasons, the doctrine of transferred intent is not even arguably applicable here.

Thus, we turn to the contention of specific intent as it relates to Ms. Johnson. Initially, we address the State's preservation argument. As the State notes, pursuant to Md. Rule 4–324(a), when moving for judgment of acquittal, the defendant “shall state with particularity all reasons why the motion should be granted.” Grounds that are not raised in support of a motion for judgment of acquittal at trial may not be raised on appeal. Graham v. State, 325 Md. 398, 417, 601 A.2d 131 (1992). Accord Starr v. State, 405 Md. 293, 302, 951 A.2d 87 (2008).

Here, in the motion for judgment of acquittal, defense counsel argued multiple times, albeit relating to charges other than second degree assault, that the State had failed to introduce evidence that appellant knew Ms. Johnson and her grandson were inside the apartment when appellant fired the gun. The trial court agreed with respect to the murder charges, expressing concern that it was “not even sure [appellant] knew that there was anybody else in the apartment.”

With regard to the charges of assault, defense counsel argued:

Your Honor, with regard—and, again, it's pretty much all the same argument because the charges are, you know, while they are different underlying offenses, first degree murder, second degree murder, assault and basically shooting a gun at someone and the State essentially is in pretty much the...