Koushall v. State, 012221 MDSCA, 2031-2019

Docket Nº:2031-2019
Opinion Judge:FADER, C.J.
Judge Panel:Fader, C.J., Arthur, Gould, JJ.
Case Date:January 22, 2021
Court:Court of Special Appeals of Maryland




No. 2031-2019

Court of Special Appeals of Maryland

January 22, 2021

Circuit Court for Baltimore City Case No. 119038015

Fader, C.J., Arthur, Gould, JJ.



Marlon Koushall, the appellant, challenges the sufficiency of the evidence supporting his convictions for second-degree assault and misconduct in office. The charges stemmed from an incident in which Mr. Koushall, who was working as a Baltimore City police officer, struck Henrietta Middleton in the head while responding to a request for backup. Mr. Koushall contends that no reasonable factfinder could have found that his conduct was not justified. Mr. Koushall also argues that his convictions for second-degree assault and misconduct in office should have been merged for the purpose of sentencing. We discern no error by the trial court. Accordingly, we will affirm the judgments.


This case arises out of an altercation between Mr. Koushall, at the time an on-duty sergeant for the Baltimore City Police Department (the "Department"), and Henrietta Middleton, an off-duty sergeant with the Department, outside of Norma Jean's, a strip club in Baltimore. Before Mr. Koushall's arrival on the scene, Sgt. Middleton was with a group of women who had emerged from Norma Jean's, where they had been attending a bachelorette party for another off-duty officer, Detective Wanda Johnson. All of the women were in plain clothes and most had been consuming alcohol. When the group exited Norma Jean's, one of its members began to argue with a woman who was not part of their group, Jane Stancil. The argument had gotten physical when Officer Anthony Pujols, a beat officer on the scene, attempted to separate Ms. Stancil from the others, and called for back-up. Meanwhile, Sgt. Middleton attempted to shepherd the other members of the bachelorette party away from Norma Jean's.

Mr. Koushall, who was on-duty nearby, responded to the call for backup. When he arrived, he approached Officer Pujols. At the same time, Sgt. Middleton began to walk back toward Ms. Stancil, who was still being restrained by Officer Pujols on the sidewalk outside Norma Jean's. Sgt. Middleton, who believed that Ms. Stancil had spat at her, spread her arms out to her sides as she approached and asked, "what are you spitting for?" As Mr. Koushall approached, he shouted at Sgt. Middleton to "back up," and then, before she could react to that command, he pushed her back and struck her on the left side of her face. Sgt. Middleton testified that she had not had any physical contact with Mr. Koushall before the strike. Nicole Blake, a private security guard who witnessed the incident, testified that Mr. Koushall "pulled back his fist all the way and then hit [Sgt. Middleton]," while Sgt. Middleton was talking and her hands were down. As shown in security camera footage, less than five seconds passed between Mr. Koushall's approach and his strike.

After the strike, Sgt. Middleton attempted to flee, but Mr. Koushall grabbed her by the hair and took her to the ground. At that point, both Ms. Blake and Officer Pujols intervened to protect Sgt. Middleton. Ms. Blake ran in between Mr. Koushall and Sgt. Middleton, shielded Sgt. Middleton, and "pushed [Mr. Koushall] out of the way." Officer Pujols, thinking that Mr. Koushall was going to punch Sgt. Middleton again, "got on [Mr. Koushall's] back" to intervene. Mr. Koushall then told Sgt. Middleton that she was under arrest.

The Department cited Sgt. Middleton for disorderly conduct, failure to obey a lawful order, assault on a police officer, and resisting arrest. However, when the State's Attorney's Office received the case and reviewed the evidence, it decided to instead pursue charges against Mr. Koushall. The State subsequently indicted Mr. Koushall for second-degree assault and misconduct in office.

Mr. Koushall elected a bench trial. The State called three members of the bachelorette party: Sgt. Middleton, Det. Dominique Wiggins, and Det. Johnson. Their largely consistent testimony was that Mr. Koushall approached Sgt. Middleton, might or might not have said something to her, [2] and then struck her in the face before she could respond. The State also called Ms. Blake, the private security guard, who described the incident and testified that she intervened because she feared for Sgt. Middleton's safety. Officer Pujols testified as to his recollection of the incident and stated that he tried to "pull [Mr. Koushall] away . . . with a bear hug" because he was worried that the interaction was going to get out of hand.

Mr. Koushall offered the testimony of Dr. Charles J. Key, an expert in use of force and police training. Dr. Key testified that when an individual is displaying "active aggression," an officer is authorized under Department guidelines to use hand and foot strikes to restrain the individual. He explained that active aggression includes "an imminent threat of an attack . . . and/or an actual attack where the person attempts to strike or actually strikes," such as "lunging towards the officer, taking a fighting stance, [or] striking the officer with hands, fists[.]" Dr. Key testified that, in his opinion, Sgt. Middleton was displaying active aggression toward Mr. Koushall and, therefore, Mr. Koushall was justified in striking Sgt. Middleton as he did and would have been justified in using even greater force.

Mr. Koushall testified on his own behalf.3 He contended that Sgt. Middleton had aggressively approached him in a fighting stance and that his response had been appropriate. He claimed that he gave Sgt. Middleton a verbal warning to back up and struck her only after she failed to comply. Mr. Koushall also testified that Department guidelines called for de-escalation techniques when possible and appropriate before resorting to the need for force.

The trial court found Mr. Koushall guilty of both second-degree assault and misconduct in office. The court expressed doubts regarding the credibility of at least some of the testimony of all of the fact witnesses and indicated that it relied in significant part on its review of the security camera footage. The court found that Mr. Koushall's "perception of [Sgt. Middleton's] active [aggression]" was not reasonable and that he had not reacted reasonably to her behavior or attempted to get the situation under control. Instead, Mr. Koushall had "overreacted [to] everything," the "force he used was totally disproportionate to the need," and, the court found, he had the "intent to do more than [to] get [Sgt.] Middleton under control." The court concluded that Mr. Koushall's "actions were not reasonable given the totality of the circumstances. They went beyond what a reasonable officer would have done with his training and experience under the same circumstances."

The court sentenced Mr. Koushall to three years' imprisonment, all suspended except time served for the assault charge, and six years' imprisonment, all suspended except time served for the misconduct charge. Mr. Koushall timely appealed.


Mr. Koushall contends that there was insufficient evidence to sustain his convictions and that the trial court erred by not merging his convictions for sentencing purposes. We conclude that the evidence was sufficient to sustain both convictions and that merger was not required and, accordingly, will affirm.

In analyzing whether there was sufficient evidence to support the verdict, we ask 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." State v. Morrison, 470 Md. 86, 105 (2020) (quoting Smith v. State, 415 Md. 174, 184 (2010)). "We give due regard to the [fact finder's] finding of facts, its resolution of conflicting evidence, and, significantly, its opportunity to observe and assess the credibility of witnesses." Spencer v. State, 450 Md. 530, 549 (2016) (quoting Harrison v. State, 382 Md. 477, 487-88 (2004)) (internal quotation marks omitted). "[O]ur concern is only whether the verdict was supported by sufficient evidence, direct or circumstantial, which could fairly convince a trier of fact of the defendant's guilt of the offenses charged beyond a reasonable doubt." State v. Manion, 442 Md. 419, 431 (2015) (quoting Taylor v. State, 346 Md. 452, 457 (1997)). Accordingly, we will overturn the convictions only if, upon review of the evidence, we determine that the judge's decision was clearly erroneous. Manion, 442 Md. at 431.

We review "without deference the question of whether a sentence is legal." State v. Wilson, 471 Md. 136, 178 (2020).

I. The Evidence Was Sufficient to Convict Mr. Koushall of Both Second-Degree Assault and Misconduct in Office.

Mr. Koushall contends that the evidence produced at trial was insufficient to sustain his conviction for second-degree assault because the State did not present any evidence that he acted without justification. He also contends that because the misconduct in office charge was predicated on the defective second-degree assault charge, that conviction too must be overturned. We hold that the evidence was sufficient to sustain both convictions.

A. Second-Degree Assault

There are three types of second-degree assault in Maryland: intent to frighten, attempted battery, and battery. State v. Frazier, 469 Md. 627, 644 (2020). Mr. Koushall was convicted of the battery type of second-degree assault, which required the State to prove that "(1) [he] caused offensive physical contact with, or harm to, [Sgt. Middleton]; (2) the contact was the result of an intentional or reckless act of [Mr. Koushall] and was not accidental; and (3) the contact...

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