Molter v. State

Decision Date07 September 2011
Docket NumberSept. Term,No. 1079,2010.,1079
Citation201 Md.App. 155,28 A.3d 797
PartiesBrett Russell MOLTERv.STATE of Maryland.
CourtCourt of Special Appeals of Maryland


Kellie M. Black (Paul B. DeWolfe, Public Defender, on the brief), Baltimore, MD, for appellant.Diane E. Keller (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.

Suppose that Scotland Yard, in late 1888, could have established that an otherwise innocuous denizen of London's Whitechapel neighborhood had been in the unexplained possession of a locket worn no more than two or three days earlier by one of the victims of Jack the Ripper. How far might the Crown have gone with the resulting inference? It is just such an inference, and the reach of its inferential potency, that is the primary focus of this appeal.

Contentions, Good and Bad

The appellant, Brett Russell Molter, was convicted in the Circuit Court for Harford County by a jury, presided over by Judge Emory A. Plitt, Jr., of first-degree burglary and theft of goods of the value of $500 or more. On appeal, he raises five questions:

1. Was the evidence legally sufficient to support his conviction for first-degree burglary?

2. Did Judge Plitt erroneously rule that he could not impeach a State's witness with evidence of that witness's probation before judgment?

3. Did Judge Plitt erroneously deny his motion for a mistrial?

4. Did the prosecutor's comments during opening statement and closing argument prejudice his right to a fair trial? and

5. Did Judge Plitt erroneously deny him his right to put on before the jury a simple demonstration?

Legal Sufficiency of Proof of Burglary

The theft in this case occurred in the course of a burglary. The appellant does not challenge his conviction for theft. His contention is only that the evidence was not legally sufficient to support the conviction for first-degree burglary. The victims of the combined theft/burglary were Eric Eisenrauch and his live-in girlfriend, Amy Batchellor, who lived together in a two-story house in Joppa, Maryland. The burglary (and theft) occurred while Eisenrauch and Ms. Batchellor were spending a weekend in New York. The window of opportunity for an unimpeded burglary was one of two days and a few hours between when the two left to drive to New York on Saturday, April 18, 2009, and when they returned to their home at approximately 2 P.M. on Monday, April 20, 2009.

When the two arrived home, they observed that the back door of the house had been broken open. They walked inside and found that the house had been ransacked. Deputy First Class William Middleton responded to the scene at 2:50 P.M. and observed that the side door had been forcibly opened. Inside the house, he noted that the “main evidence of ransacking” was in the bedroom and the closets. The appellant's challenge to the burglary conviction was not with respect to the proof of the corpus delicti, but only to the proof of his criminal agency.

The First Strand in the Web

Eisenrauch testified that, before leaving for New York, he had told two people about his impending trip: 1) his business partner, Keith Geiser; and 2) the appellant. Eisenrauch and the appellant had known each other for 20 years (since they had both been in the 6th grade together) and were, prior to April of 2009, very good friends. Eisenrauch described the appellant as a good handyman who had worked for him on various projects over the years. The knowledge that the homeowners would not be home is far from being proof of guilt, but it is a helpful clue. And a clue need only be a clue.

Presence At The Crime Scene

In addition to his having knowledge that the house would be unoccupied over that weekend, the appellant was also observed at the scene during the critical window of opportunity by Paul Haye, a long-term acquaintance of both the appellant and Eisenrauch. Haye testified that on Saturday evening, April 18, 2009, he was visiting a friend who lives down the road from the Eisenrauch house. At some time between 5:00 P.M. and 8:00 P.M. that evening, but while the sun was still out, Haye was driving on Joppa Farm Road and turned left onto the street where Eisenrauch lived. He happened to see the appellant, whom he knew, standing in front of the Eisenrauch house but had no idea what he was doing there. Haye further testified that the appellant then walked toward the side door, the door through which the forced entry into the house was made.

In seeking to devalue this testimony placing him at or near the crime scene, the appellant, it would seem, “doth protest too much:”

“The only evidence that the State presented suggesting that Mr. Molter [the appellant] was ever anywhere near Mr. Eisenrauch's house at any point during the weekend in question was the incredible testimony of Mr. Haye.”

(Emphasis supplied).

The persuasiveness of evidence may depend upon the credibility of the witness, but its legal sufficiency does not. In assessing the legal sufficiency of the evidence, of course, it is not our prerogative to evaluate the credibility of a witness. That is exclusively the job of the fact-finding jurors. State v. Smith, 374 Md. 527, 533–35, 823 A.2d 664 (2003); Pinkney v. State, 151 Md.App. 311, 325–29, 827 A.2d 124 (2003).

Inevitably, inquisitive jurors may ask themselves, “Why was the appellant at that particular place at that particular time?” They will then proceed to answer the question for themselves, particularly in the total absence of either denial or explanation by the defense. Inquisitive fact finders might suppose that no explanation was forthcoming because there was no innocent explanation. That, of course, is what circumstantial evidence is all about. A particular circumstance may not be sufficient proof of guilt unto itself, but it may nonetheless be a strand in an emerging web of proof.

A Dispositive Inference

In terms of proof of the appellant's guilt, the clincher was the inference, from his unexplained possession of recently stolen goods, that he was the thief of those stolen goods. It appears that the first reference by the Court of Appeals to this permitted inference of guilt that fact finders may draw from the unexplained possession of recently stolen goods was in Debinski v. State, 194 Md. 355, 360, 71 A.2d 460 (1950):

The law is clear that recent possession of stolen goods is evidence of guilt of the possessor and casts the burden on the possessor of such stolen goods to give a reasonable explanation of how he came into its possession.

“It has long been a well established rule of evidence in a criminal charge of larceny that recent possession of stolen goods gives rise to a presumption that the possessor is the thief.” United States v. Washington, 69 F.Supp. 143, 147 (1946), and authorities there cited.

That precedent has been consistently followed for the intervening 61 years. Felkner v. State, 218 Md. 300, 305, 146 A.2d 424 (1958); Butz v. State, 221 Md. 68, 77–78, 156 A.2d 423 (1959); Glaros v. State, 223 Md. 272, 280, 164 A.2d 461 (1960); Lewis v. State, 225 Md. 474, 475–76, 171 A.2d 244 (1961); Byrd v. State, 229 Md. 148, 182 A.2d 47 (1962); Stapf v. State, 230 Md. 106, 108, 185 A.2d 496 (1962); Cason v. State, 230 Md. 356, 358, 187 A.2d 103 (1963); Brooks v. State, 235 Md. 23, 200 A.2d 177 (1964); Curry v. State, 235 Md. 378, 201 A.2d 792 (1964); McCray v. State, 236 Md. 9, 202 A.2d 320 (1964); Bey v. State, 237 Md. 627, 206 A.2d 559 (1965); Anglin v. State, 244 Md. 652, 224 A.2d 668 (1966).

By the time of Brewer v. Mele, 267 Md. 437, 298 A.2d 156 (1972), the Court of Appeals had cleaned up the somewhat dated language of Debinski v. State in two minor respects. Instead of speaking of “the recent possession of stolen goods” it more carefully spoke of “the possession of recently stolen goods.” Instead of a legal presumption that the possessor was the thief, it more carefully referred to “the permitted inference of fact” that the possessor was the thief. It never was a presumption, of course. It was simply the case that our appellate analysis in 1950 was not yet up to making the nuanced distinction. As of Brewer v. Mele, however, the language was more precise:

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.

267 Md. at 449, 298 A.2d 156 (emphasis supplied).

The permitted inference is more than a strand; it is proof of guilt that may stand alone. See also Cross v. State, 282 Md. 468, 480, 386 A.2d 757 (1978); Grant v. State, 318 Md. 672, 680–81, 569 A.2d 1237 (1990); Smith v. State, 367 Md. 348, 359, 787 A.2d 152 (2001).

All necessary elements for the permitted inference were in place in this case. Both Eisenrauch and Ms. Batchellor had furnished the police with a lengthy and detailed description of items that had been stolen in the course of the burglary. In a search of the appellant's car on Monday, April 27, 2009, the police recovered from the trunk of the car no less than six of the items that had been taken in the course of the burglary. Ms. Batchellor identified 1) a Dooney and Bourke purse; 2) a Louis Vuitton purse; 3) a Breitling watch box; 4) a black canvas tool bag; and 5) a silver necklace. Eisenrauch, in addition, identified a Sharp video camera. All of those items had been described to the police in detail when the police first responded to the crime scene.

How Recent Is “Recently”?

“Recently stolen” is a relative term that cannot be pinned down with mathematical precision. In this case it was established that the appellant was in possession on April 27, 2009 of goods that had been stolen between April 18 and April 20, 2009, some seven to nine days earlier. Does that properly qualify as having been “recently stolen?”


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