Montgomery v. State

• Decision Date: 02 July 2012
• Docket Number: No. 1063,Sept. Term, 2011.,1063
• Citation: 206 Md.App. 357,47 A.3d 1140
• Parties: Bashawn Moneak MONTGOMERY v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

206 Md.App. 357

47 A.3d 1140

Bashawn Moneak MONTGOMERY

v.STATE of Maryland.

No. 1063, Sept. Term, 2011.

Court of Special Appeals of Maryland.

July 2, 2012.

Nancy S. Forster, Towson, MD, for Appellant.

Michelle W. Cole (Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, MD, for Appellee.

Panel: KRAUSER, C.J., GRAEFF and WATTS, JJ.

WATTS, J.

Following a trial held on May 16, 2011, a jury in the Circuit Court for Washington County convicted Bashawn Moneak Montgomery, appellant, of one count of robbery, one count of second-degree assault, two counts of theft of property with a value of at least $500,¹ two counts of obtaining property with a value of over $500 by use of a stolen credit card,² and two counts of unauthorized use or disclosure of a credit card number.³See Md.Code Ann., Crim. Law Art. (“C.L.”) § 3–402 (robbery); C.L. § 3–203 (second-degree assault); C.L. § 7–104(a) (theft); ⁴C.L. § 8–206(a) (obtaining property by use of a stolen credit card); ⁵ C.L. § 8–214(a) (unauthorized use or disclosure of a credit card number).

On July 11, 2011, the circuit court sentenced appellant to fifteen years' imprisonment, with all but ten years suspended, for robbery; fifteen years' imprisonment consecutive, with all but ten years suspended, for the first count of obtaining property by use of a stolen credit card; fifteen years' imprisonment concurrent, with all but ten years suspended, for the second count of obtaining property by use of a stolen credit card; eighteen months' imprisonment concurrent for each of the two counts of unauthorized use or disclosure of a credit card number; and three years' supervised probation, with $2,120 in restitution to King's Jewelry Store as a condition of probation. ⁶ Appellant noted an appeal ⁷ raising three issues, which we rephrase: ⁸

I. Did the circuit court err by purportedly failing to swear the jury?

II. Was the evidence sufficient to support the convictions for robbery, second-degree assault, and obtaining property by use of a stolen credit card?

III. Was appellant improperly convicted of and sentenced for two separate counts each of theft, unauthorized use or disclosure of a credit card number, and obtaining property by use of a stolen credit card?

For the reasons set forth below, we answer question I in the negative. We answer question II in the affirmative. We answer question III in the affirmative as to the second conviction for theft (“Count Five”) and the second conviction and sentence for obtaining property by use of a stolen credit card (“Count Seven”). We, therefore, reverse the second conviction for theft (“Count Five”) and the second conviction for obtaining property by use of a stolen credit card (“Count Seven”). We vacate the sentence for the second conviction for obtaining property by use of a stolen credit card (“Count Seven”).⁹ We answer question III in the negative in all other respects. We, therefore, affirm all other sentences and judgments of conviction.¹⁰

FACTUAL AND PROCEDURAL BACKGROUND

The acts for which appellant was convicted occurred on June 8, 2008, at King's Jewelry Store in Hagerstown, Maryland.

Trial

At trial, as a witness for the State, Kristi Mellott testified that on June 8, 2008, she was a sales associate at King's Jewelry Store. Mellott testified that a man, whom she identified as appellant, entered the store with an unidentified man and woman. According to Mellott, appellant gave her a piece of jewelry to clean, and as she was cleaning the piece of jewelry, one of its stones fell out. Mellott offered to send out the piece of jewelry to have it fixed for free. Mellott testified that appellant declined the offer and, “seem[ing] very agitated[,]” started “trying to bargain with [her]. Maybe to give him free things or something for him having to go get [his piece of jewelry] fixed somewhere else.” According to Mellott, appellant “began pointing at the cases saying he wanted things.”

According to Mellott, appellant told her to keep her hands above the counter where he could see them, and every time she moved her hands, he became “hostile.” Mellott testified that appellant's “voice was very strong and loud. He was very demanding of [her] to do exactly what he said. Not to leave the area.” Mellott testified that appellant “told [her] to stand in a certain spot and he kept saying, ‘You're going to do this,’ and he told [her] not to move[.]” According to Mellott, if she did not follow appellant's directions, appellant “would start speaking louder towards [her] or demanding [her] to do things.” Mellott testified that she did not feel that she was free to leave and go into the store's office because she “didn't know what [appellant] was going to do.” When asked: “When you said you were scared and fearful were you fearful that you maybe hurt[,]” Mellott replied: “Yes.” ¹¹ Mellott testified that she felt “very uncomfortable. [She] was scared for [her] life because [she] didn't know what was going to happen if [she] didn't listen to” appellant.

According to Mellott, appellant pointed to a ring that was part of a bridal set that was priced around $2,000, and said, “I'll take that.” Mellott testified that appellant “didn't have his ID or a credit card.” The unidentified man left the store, and stood outside while holding a cell phone and a piece of paper. The man spoke into the cell phone, re-entered the store, and handed to appellant the paper—which had a credit card number and an expiration date written on it. Mellott testified that appellant, in a very “angry” voice, ordered her to type the paper's credit card number into the store's debit machine. Mellott was not supposed to enter a credit card number without the credit card, “but because of feeling threatened [she] did do it. [She] continuously asked [appellant] for his ID telling him [that she] could not do it .... He told [her that she] had to do it.” Mellott testified that she would “never” have entered the credit card number if appellant had not acted the way that he did. Mellott testified that she “typed in a wrong number” and that appellant said, “You typed in the wrong number. Give it to me. I'll do it.” Mellott then typed in the correct credit card number from the paper.

Mellott testified that the credit card number was declined and that appellant then chose another ring—the other ring in the $2,000 bridal set. Mellott testified that she charged the credit card number for $1,000, “[b]ut it was two thousand so [appellant] told [her] to do it again.” Mellott rang up two separate charges for $1,000 on the credit card number from the piece of paper. According to Mellott, appellant left the store with the two rings from the $2,000 bridal set. Mellott testified that her cash register was equipped with an alarm button, which she did not press during the incident. During Mellott's encounter with appellant, one of her coworkers was in the watch repair room, a closet-sized room directly behind the jewelry counter with a door that was “always open.” Mellott testified that, during the encounter, she telephoned Mary Screen, the store manager, to tell Screen that a customer “didn't have an ID and [she] didn't know what to do.” According to Mellott, Screen arrived at the store no more than about ten minutes before the transaction's end.

As a witness for the State, Screen testified that on June 8, 2008, she was the manager of King's Jewelry Store and “got a phone call ... that there [ was] something going on in the store.” According to Screen, she entered the store and saw Mellott behind the counter waiting on a customer, whom Screen identified at trial as appellant. Mellott looked “nervous” and “ was shaking. She was trembling.” According to Screen, appellant was “being very impatient. [She] went in and actually made the phone call to the credit card company to get it approved and [appellant] said, ‘Don't waste the energy, hang up the phone.’ ” Screen testified that appellant made her feel “[v]ery uncomfortable” because of “[h]is demeanor. The way he was speaking.” Screen testified that she had been working at the store since 1999, and had dealt with difficult customers before. Screen responded “[v]ery” when asked if she would classify appellant as “[b]eyond being difficult.”

As a witness for the State, Joan Lamoy testified that, around June or July of 2008, one of her credit cards was declined. Lamoy testified that she called her credit card company and was told that her credit card was declined because of large purchases, “at least a couple thousand dollars,” at a jewelry store. Lamoy testified that she never gave anyone permission to use her credit card number. According to the charging document, Lamoy's credit card number was the one that appellant used on June 6, 2008, at King's Jewelry Store.

As a witness for the State, Rhonda Maketa testified that, in 2008, she was a “point of sale coordinator” at King's Jewelry Store's corporate office. Maketa testified that credit cardholders' banks would contact her office when the credit cardholders disputed charges. Maketa testified that, in July 2008, Heartland Payment Systems—King's Jewelry Store's credit card processor—asked her office to investigate two charges that had been made on June 8, 2008, at King's Jewelry Store in Hagerstown. According to Maketa, Heartland Payment Systems believed that the credit cardholder had not authorized the two charges. The State offered into evidence, as State's Exhibit 2, a two-page document that Maketa identified as two separate requests to her office from Heartland Payment Systems for “retrieval,” or documentation, of the two $1,000 charges that had been made on June 8, 2008, at the King's Jewelry Store in Hagerstown. The circuit court admitted State's Exhibit 2 without objection. Maketa testified that Heartland Payment Systems reversed the two charges of $1,000, leaving King's Jewelry Store without the merchandise or the $2,000 in payments.

The Jury's Impaneling

On May 16, 2011, a jury panel...