Kelley v. State

• Court: Maryland Court of Appeals
• Writing for the Court: Wilner
• Citation: Kelley v. State, 939 A.2d 149, 402 Md. 745 (Md. App. 2008)
• Decision Date: 09 January 2008
• Docket Number: No. 45, Sept. Term, 2007.,45, Sept. Term, 2007.
• Parties: Robert Leon KELLEY, Jr. v. STATE of Maryland.

939 A.2d 149

402 Md. 745

Robert Leon KELLEY, Jr. v. STATE of Maryland.

No. 45, Sept. Term, 2007.

Court of Appeals of Maryland.

January 9, 2008.

Stanley E. Fisher, Assigned Public Defender (Williams & Connolly LLP, Washington, DC), on brief, for petitioner.

Jeremy M. McCoy, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen.), on brief, for respondent.

Argued before BELL, C.J., RAKER, HARRELL, BATTAGLIA, GREENE, ALAN M. WILNER (Retired, Specially Assigned), and DALE R. CATHELL (Retired, Specially Assigned), JJ.

WILNER, J.

Petitioner, Robert Kelley, was convicted by a jury in the Circuit Court for Washington County on three counts of felony theft—theft of property having a value of $500 or more. See Maryland Code, § 7-104(g) of the Criminal Law Article (CL). The maximum penalty prescribed for felony theft is imprisonment for fifteen years and a fine of $25,000. Upon each of the three convictions in this case, the court imposed a six-year prison sentence, the sentences to run consecutively for an aggregate of eighteen years.

The thefts, which petitioner no longer contests, involved multiple items of property taken from three different owners, over differing periods of time, from three separate locations a mile or more apart from one another. Count 5 charged the theft of two items of property from Mary Trumpower between December 4 and December 18, 2003. During that period, an antique sleigh was stolen from her barn and an antique wheelbarrow was taken from her garage. Count 11 involved the theft of several items from Donald Spickler. During the period November 27 to 29, 2003, an antique sleigh was taken from Mr. Spickler's barn and miscellaneous glassware and a toy tank were taken from his house. Count 16 dealt with various items taken from Eliza Spickler, Donald Spickler's mother. During the period November 1 to December 18, 2003, certain items were taken from her vacant house and others were taken from her store. The house was vacant because Ms. Spickler was in a nursing home.¹

In each of the theft counts, the State relied on CL § 7-103(f) to aggregate the value of each item taken in order to reach the $500 threshold for felony theft. Section 7-103(f), which is part of the section dealing with the determination of value for purposes of the theft law, provides:

"When theft is committed in violation of this part under one scheme or continuing course of conduct, whether from the same or several sources:

(1) The conduct may be considered as one crime; and

(2) the value of the property or services may be aggregated in determining whether the theft is a felony or a misdemeanor."

Kelley believes that it is impermissible for the State to aggregate the value of the property taken with respect to the three individual counts, so as to make the separate takings one felony theft in each case, but then to consider the three series of thefts separate for sentencing purposes. The necessary underpinning of his argument is that he had but one scheme to steal from all three victims, not three separate schemes, and that all of the thefts were therefore committed pursuant to that one scheme as one continuing course of conduct. Accordingly, he urges, there was only one crime of felony theft, for which only one sentence could lawfully be imposed. The argument, as he articulates it, is that "where the State aggregates and there are not separate schemes, consecutive sentences merge under the single larceny doctrine." As an alternative, he insists that, because Donald Spickler was in effective control of the property of his mother, Eliza, the theft of her property must be aggregated with the theft of his property, so, at the most, there could be only two felony thefts.

The Court of Special Appeals saw no merit in his argument and, in an unreported opinion, affirmed the judgment entered by the Circuit Court. We also see no merit to the argument and shall therefore affirm the judgment of the intermediate appellate court.

At issue is what is known as the "single larceny doctrine," the substance of which this Court first recognized in State v. Warren, 77 Md. 121, 26 A. 500 (1893) and discussed most recently in State v. White, 348 Md. 179, 702 A.2d 1263 (1997). The doctrine developed as a common law principle, and, as we pointed out in White, the issue of its application, as a common law principle, has arisen principally in three contexts:

"(1) whether a count in a charging document alleging that the defendant stole the property of several persons at the same time charges more than one offense and is therefore duplicitous; (2) whether a prosecution, conviction, or sentencing for stealing the property of one person bars, under double jeopardy principles, the prosecution, conviction, or sentencing for having stolen the property of another person at the same time; and (3) whether, when the property of different persons is stolen at the same time, the values of the separate items of property may be aggregated to raise the grade of the offense or the severity of the punishment, to the extent that either is dependent on the value of the property taken."

Id. at 182, 702 A.2d at 1264.

It was in the first context that the principle arose in Warren, the issue being whether a count in an indictment that charged the defendant with stealing, at the same time, several sums of money belonging to different owners was duplicitous: "Does the stealing of several articles of property at the same time, belonging to several owners, constitute one offense, or as many separate offenses as these different owners of the property stolen?" Warren, 77 Md. at 122, 26 A. at 500.

Although recognizing that, at the time, there was some conflict regarding the matter, this Court, without mentioning the single larceny rule by name, concluded that, upon principle, "the stealing of several articles at the same time, whether belonging to the same person or to several persons, constituted but one offense." Id. (Emphasis added). The rationale for that ruling was as follows:

It is but one offense because the act is one continuous act,—the same transaction; and, the gist of the offense being the felonious taking of the property, we do not see how the legal quality of the act is in any manner affected by the fact that the property stolen, instead of belonging to one person, is the several property of different persons."

Id.

The Warren Court stressed that the rule applied only when the stealing of the different articles occurred at the same time, which was consistent with the "one continuous act" characterization, and was careful to note that "the stealing of property at different times, whether belonging to the same person or different persons, constituted separate offenses, . . ." Id. at 123, 26 A. at 500. (Emphasis added). That caveat, which, in light of the facts of the case was in the nature of dicta, was essentially ignored in at least two subsequent cases. In Delcher v. State, 161 Md. 475, 158 A. 37 (1932), the Court found non-duplicitous a single count of larceny where a bill of particulars showed that the defendant had stolen money from his employer on several occasions over a nearly two-year period. It was not necessary, the Court said, for there to be separate counts "covering each of the items in a series of continuing offenses,. . . ." Id. at 483, 158 A. at 41.

In Horsey v. State, 225 Md. 80, 169 A.2d 457 (1961), the Court, in a per curiam Opinion that cited neither Warren nor Delcher, essentially followed the Delcher approach. The defendant was charged with stealing various items of clothing and accessories on May 23, 1960, from the store at which he was employed, i.e., from a single owner. The evidence showed, however, that those items were not all taken at one time and that he was in possession of some of the property in March. In light of that, the defendant argued that separate crimes had been committed and that the State could not add the value of the property taken in March to the value of the property taken in May in determining whether the felony threshold had been met. The Court rejected that argument and concluded that the trial court could properly have found "that the separate takings were pursuant to a common scheme or intent" and that it "is generally held that if they are, the fact that the takings occur on different occasions does not establish that they are separate crimes." Id. at 83, 169 A.2d at 459. As an alternative holding, the Court quickly observed that there was sufficient evidence to show that the value of the property found in the defendant's possession in March surpassed the felony threshold, and that "[t]his alone would support the verdict."

Delcher and Horsey expanded Maryland common law to the point of recognizing the single larceny doctrine, or at least its substance, where several items of property are stolen either at the same time from the same or different people or at different times from the same owner. See also Govostis v. State, 74 Md.App. 457, 538 A.2d 338 (1988) (where evidence showed that defendant loaded victim's clothing into victim's car and then stole both, as part of one criminal scheme, separate sentences for stealing the car and the clothing could not stand). The one circumstance still outside the common law rule, or at least not addressed in that context, was where several items are stolen from different owners at different times. That circumstance— the one now before us—is addressed by statute.

In 1978, the General Assembly, following the lead of the Model Penal Code, enacted a new, consolidated theft statute that encompassed seven pre-existing larceny offenses. See 1978 Md. Laws, ch. 849. The new statute was the product of a joint subcommittee of the Legislature. See REVISION OF MARYLAND THEFT LAWS AND BAD CHECK LAWS, Joint Subcommittee on Theft Related Offenses, Maryland General Assembly (1978). As part of the statute, the Legislature codified the common law single larceny doctrine as it had...