Lakeysha P., In re

• Decision Date: 01 September 1994
• Docket Number: Nos. 1447,1531,s. 1447
• Parties: In re LAKEYSHA P. In re DONTANYON T. ,
• Court: Court of Special Appeals of Maryland

Page 401

106 Md.App. 401

665 A.2d 264

In re LAKEYSHA P.

In re DONTANYON T.

Nos. 1447, 1531, Sept. Term, 1994.

Court of Special Appeals of Maryland.

Sept. 28, 1995.

Edwin H. Convey, Assistant Public Defender (Stephen E. Harris, Public Defender, on the brief), Baltimore, for appellant.

Celia Anderson Davis and Timothy J. Paulus, Assistant Attorneys General (J. Joseph Curran, Jr., Attorney General and Stuart O. Simms, State's Attorney for Baltimore City, on the brief), Baltimore, for appellee.

Submitted Before MOYLAN and HARRELL, JJ., and JAMES S. GETTY, Judge (retired), Specially Assigned.

MOYLAN, Judge.

To pinpoint the precise issue before us on this consolidated appeal, it may be helpful to posit a criminal jury composed of twelve law professors. A 21-year-old defendant is before them on a two-count indictment, the first count charging the Theft of an automobile and the second, the Unauthorized Use of that automobile. Undisputed evidence established that the defendant, without the consent of the owner, broke the window of the automobile, "hot wired" the ignition, and drove off, alone. He was apprehended by the police two minutes later, four blocks away. The defendant, with no criminal record, had apparently never spoken to anyone with respect to that or any other automobile. He gave no statement to the police and did not testify. There was no suggestion that the defendant was not both sane and sober. After several hours of deliberation, the jury returned with a question:

We are unanimously persuaded beyond a reasonable doubt that the defendant unlawfully took the car and specifically intended to deprive the owner of it. As to the duration of that intended deprivation, however, we don't have a clue. We are not persuaded that the defendant intended to deprive the owner of the car permanently or for such a period as to appropriate a portion of its value. Neither are we persuaded that the defendant intended to deprive the owner of the car only temporarily. Given these findings and non-findings, must we acquit the defendant on all charges or may we resolve our doubt by convicting him of the less blameworthy charge? Please advise.

We would advise that hypothetical jury to convict of Unauthorized Use. There is no eye in the hurricane of guilt. In reaching that conclusion, we are not unmindful of Henry v. State, 273 Md. 131, 328 A.2d 293 (1974). We venture to suggest, however, that Henry v. State is no longer binding, inviting as we do so the full scrutiny of the Court of Appeals to be brought to bear on a vexing doctrinal problem. It is the problem of the relationship between two crimes that share every element of a common corpus delicti, but then differ only as to the levels of blameworthiness of their respective mentes reae. We believe that different gradations or degrees of culpability all rise in the same direction, with each level telescoping imperceptibly into the next higher level as fact finders are, one by one, persuaded that the pertinent boundary marker has been passed. We do not believe that related degrees of blameworthiness point in opposite directions, creating the anomaly (if not absurdity) of some intermediate "free zone" where one might be not guilty enough for the greater crime but too guilty for the lesser crime.

We venture to advance this position because of our belief that the whole mode of legal and semantic analysis typified by cases such as Henry and our own McCarson v. State, 8 Md.App. 20, 257 A.2d 471 (1969) has, in closely analogous situations, been superseded by a more sophisticated and semantically more finely tuned analysis exemplified by the Court of Appeals opinion in Lightfoot v. State, 278 Md. 231, 360 A.2d 426 (1976).

The Cases at Hand

In each of the two juvenile delinquency adjudications in this consolidated appeal, the key issue is exactly the same. It is not at all fact-specific, but is presented to us as an abstract legal question in two appellate briefs that are essentially verbatim copies of each other. Consolidation is appropriate.

At an adjudicatory hearing before Judge Martin P. Welch in the Circuit Court for Baltimore City, the appellant Lakeysha P. was found to have committed the delinquent acts of Theft of a Motor Vehicle and the Unauthorized Use of that same Vehicle--counts one and three, respectively, of the juvenile multi-count petition filed against her. At the subsequent disposition hearing, Lakeysha was found to be a delinquent child. She was placed on probation for an indefinite period. Judge Welch indicated that he was merging the "lesser" offense of Unauthorized Use into the "greater" offense of Theft. Notwithstanding having merged the finding on the Unauthorized Use count, the judge then dismissed the count.

It was also at an adjudicatory hearing before Judge Welch that the appellant Dontanyon T. was found to have committed the delinquent acts of Theft of a Motor Vehicle and the Unauthorized Use of that same Vehicle. It was at a subsequent disposition hearing before Judge Paul A. Smith that Dontanyon was found to be a delinquent child. He was placed on probation for one year. Judge Smith ordered restitution in the amount of $300 on the Theft count and opined that the Unauthorized Use count had merged into the Theft count.

The Issue

Both appellants contend that their judgments of delinquency, based on findings that they had committed automobile Thefts, were fatally flawed because such findings were inconsistent with the companion findings that they had been guilty of the Unauthorized Use of the automobiles in question. The argument is that if they only intended to take the cars temporarily, findings they claim to be implicit in the Unauthorized Use convictions, they could not, ipso facto, have intended to take the cars permanently (or quasi-permanently), which would preclude Theft convictions. There is a surface appeal to such an argument, but it is fallacious.

The argument, we note, is not a complaint about multiple punishment, and In re Montrail M., 325 Md. 527, 535, 601 A.2d 1102, 1106 (1992) (holding that a failure to merge two counts is not reversible error where only one penalty is imposed) is not apposite. The argument, rather, is that inconsistent verdicts of Theft and Unauthorized Use cannot stand, quite aside from any concern about multiple punishment. Nor is State v. Anderson, 320 Md. 17, 30, 575 A.2d 1227, 1233 (1990), apposite (where an apparent inconsistency in verdicts was explained away and shown not to have been an inconsistency at all).

This contention poses squarely the question of whether the crime of Unauthorized Use of an Automobile is logically inconsistent with the Theft (or larceny) of that automobile or is simply a closely related crime with a lesser included mens rea.

What Did the Legislature of 1880 Intend?

The specimen on the dissecting table is the mens rea of Unauthorized Use. The crime itself is now codified as MD.ANN.CODE, art. 27, § 349 (1993). The statute creating the crime was ch. 164 of the Acts of 1880. It was a companion provision to the Maryland "horse stealing" statute, which had been on the books since 1744 and which created a special penalty for the common law larceny of horses and other related chattels. As a mere sub-variety of common law Larceny, dealing with certain specific chattels, the crime of horse stealing required proof of an animus furandi or intent permanently to deprive the owner of the horse.

The newly created crime of Unauthorized Use was not a crime recognized at the common law and the 1880 statute had, therefore, to spell out all of its required elements. The essential difference between traditional larceny and the newly enacted crime of Unauthorized Use was that the latter did not require proof of an animus furandi nor of any other specific intent.

The question before us is whether the Legislature simply eliminated the requirement of a specific intent to deprive the owner of the chattel permanently--a mere dropping of an element--or whether it intended to create a substitute mental element of an affirmative intent to deprive the owner of the use of the chattel temporarily. Some latter-day champions of the "temporary" position maintain that the crime requires affirmative proof of an intent to deprive that is: 1) temporary in duration, 2) nothing but temporary, and 3) proved to be temporary beyond a reasonable doubt. "Temporary" to them is not something that is merely "less than permanent;" it is the very opposite of "permanent." The indecisive thief, therefore, who has not yet decided whether to keep the horse (or the car) either temporarily or permanently would presumably be guilty of nothing. That is the unavoidable logical consequence of making an affirmative element out of an intended temporary deprivation. That, however, cannot be the law.

Dealing With Horse Thieves

As we begin to probe legislative intent, much can be deduced about the legislators' collective purpose in 1880 by looking at the older law that the new Unauthorized Use statute was fashioned to complement. Wright v. Sas, 187 Md. 507, 510, 50 A.2d 809 (1947), provides an excellent history of the horse-stealing statute; see also In re Wallace W., 333 Md. 186, 191, 634 A.2d 53, 56 (1993); Robinson v. State, 17 Md.App. 451, 456, 302 A.2d 659, 662 (1973). The Wright opinion points out how at early English law "horse stealing had been punished more severely than other cases of larceny." 187 Md. at 510, 50 A.2d 809. A series of English statutes in 1547, 1549, and 1589, see 1 Edw. 6, ch. 13; 2 & 3 Edw. 6, ch. 33; 31 Eliz., ch. 12, had removed the benefit of clergy from horse thieves, whether they were principals or accessories before or after the fact, thereby making the stealing of a horse a capital offense. The Maryland Colonial Assembly of 1744 replicated the English penalty provision, making it punishable by death to "steal any horse or horses, mare or mares, gelding or geldings, colt or colts." 1744...