Olson v. State

• Decision Date: 28 November 2012
• Docket Number: No. 3032,Sept. Term, 2009.,3032
• Citation: 56 A.3d 576,208 Md.App. 309
• Parties: Phillip Thane OLSON v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

208 Md.App. 309

56 A.3d 576

Phillip Thane OLSON

v.STATE of Maryland.

No. 3032, Sept. Term, 2009.

Court of Special Appeals of Maryland.

Nov. 28, 2012.

Claudia A. Cortese (Paul B. DeWolfe, Public Defender, on the brief) Baltimore, MD, for appellant.

Daniel J. Jawor (Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, MD, for appellee.

Panel: KRAUSER, C.J., WRIGHT and JAMES A. KENNEY, III (Retired, Specially Assigned), JJ.

JAMES A. KENNEY, III (Retired, Specially Assigned), J.

Appellant, Philip Thane Olson, was charged with multiple offenses arising out of incidents occurring on February 14, March 6,¹ and May 12, 2009. On January 14, 2010, a jury sitting in the Circuit Court for Washington County convicted appellant of two counts of keeping a disorderly house (February 14, May 12), two counts of disorderly conduct (March 6, May 12), two counts of failure to obey a lawful order of a police officer (March 6, May 12), and one count each of disturbing the peace (May 12) and resisting arrest (May 12). He was sentenced to three years imprisonment for resisting arrest, a concurrent six month sentence for keeping a disorderly house, and three consecutive 60–day sentences for disorderly conduct and for disturbing the peace. In his timely appeal, appellant presents the following questions for our review, which we have revised as follows:

1. Was there sufficient evidence to support appellant's conviction for resisting arrest on May 12?

2. Did the trial court commit plain error in its jury instruction on resisting arrest?

3. Was there sufficient evidence to support appellant's convictions for keeping a disorderly house on February 14 and May 12?

4. Did the trial court err in its jury instruction on keeping a disorderly house?

For the reasons set forth below, we answer the first question in the affirmative and second and third questions in the negative. Having answered the third question in the negative, we do not address the fourth question.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant's apartment, located at 417 South Potomac Street in Hagerstown, Maryland, is directly above the apartment of Michelle and Larry Straitiff. On February 14, 2009, the Straitiffs returned home from work around 5:00 p.m. Mrs. Straitiff testified, “as soon as we walked in the door, the music upstairs at [appellant's] apartment went up so loud that we couldn't even hear a conversation between ourselves.” Mr. Straitiff testified that appellant “turned up the music real loud, started jumping up and down on the floor up above us.... I could hear it clean out on the front street.” After an hour of the noise, Mrs. Straitiff called the police.

Officers R.D. Isaacs and Dwayne White from the Hagerstown City Police Department responded to the call. Officer Isaacs, who arrived first, testified that he was able to hear “loud music or the tv” when he entered the apartment building, and from inside the Straitiffs apartment he could hear that “the tv was loud and [appellant] was stomping, yelling and using profanity.” The officers went to appellant's apartment and Officer White “advised [appellant] why we were there, if I had to come back he was going to get issued a citation for disorderly household,” and Officer Isaacs “advised him that he needed to turn his music down and keep the noise under control.” Officer White told the Straitiffs to call if the noise returned.

Mrs. Straitiff testified that as soon as the officers left, “the music went back up again ... as loud as it was before” and there was “yelling and stomping and things like that.” She called the police and, approximately fifteen minutes after leaving, Officers White and Isaacs returned to the location. Officer White testified that from the first floor of the apartment building he could hear music and “was able to hear the yelling and the television on and the stomping on the floor” from inside the Straitiffs' apartment. He specified that “it was all just a lot of yelling” and “possibly some cursing.” Officer Isaacs testified that he could hear the noise from outside the apartment building.

The officers went to appellant's apartment and “had to bang on the door” for “a couple of minutes” before appellant opened the door. According to Officer Isaacs, “we entered his apartment and we advised him that he needed to turn his music down ... or actually it was the television. And he kept ranting and raving that ... his music is not loud and he wasn't cussing or doing anything wrong.” The officers entered the apartment, turned down the music, issued a citation for maintaining a disorderly house, and then left.

According to Officer White, “approximately at 7:57 p.m.” he and Officer Isaacs were “dispatched there again for the same type of complaint coming from the third floor.” Officer White could hear the noise both from the common area of the apartment building and from inside the Straitiffs' apartment. The officers began “banging” on appellant's door, and, although at first “he didn't answer,” he later “stood on the other side of the door and was talking to us.” According to Officer Isaacs, they “were just advising him he needs to turn it down and he just refused.” Officer White testified that he did not arrest appellant at this time because that would have required “kick[ing] his door in [.]” Officer White testified that “since he would not answer the door, I went back” to the police station “and filed for a criminal summons” for keeping a disorderly house.

Mrs. Straitiff testified that, on May 12, 2009 at approximately 11:00 p.m., it was

the same thing all over again.... [T]he music was always so loud that I could not watch the tv. I couldn't enjoy ... I couldn't talk on the phone. I couldn't have a conversation with anyone in my home.... This day it was really pronounced, again, the stomping, the screaming, the yelling.... Always profanity. Always bitch, whore, slut, crack whore.

At approximately 1:00 a.m. the Straitiffs called the police. Officer Langley Dean, who, with Officer Jesse Duffey, responded to the call, testified that “[a]s soon as I got out of my patrol car I could hear loud music coming from the area,” and from inside the Straitiffs' apartment “[y]ou could hear loud music and you could hear some thumping on ... the floor.” Officer Duffey testified that he could hear the music from the street when they parked the vehicle, and that “it's a heavy [sic] populated area with apartments and houses all down that street[.]”

When Officer Dean knocked on appellant's door and asked appellant “to open up so we could talk,” appellant yelled through the door, “Fuck you, you're the police. Motherfucker.... Fuck you, I am playing the music all night and Hagerstown City Police, I am recording you.” Officer Dean went to the back window of appellant's apartment, knocked on it and looked into the apartment. According to the officer, appellant came

to the window, opened the blind up. I can clearly see him inside the apartment. Ah, he was holding a laser level. Ah, the beam was protruding from the laser level and he was stating that that was his tape recorder and that he was recording everything that we were doing and what we were saying to him.

According to Officer Dean, “the whole reason we were there [was] to get [appellant] to turn the music down,” and he specifically asked appellant to turn down the music. In response, appellant “stated that he was going to play his music all night long. Ah, just kept screaming and yelling and wouldn't let us in, wouldn't come out to talk to us.” Officer Dean testified that appellant would at times turn down the music, but “[o]nly to scream more profanities” and then “[h]e would turn his music back up.”

Officer Dean called his supervisor, Sergeant David Long, to “make him aware of the situation.” Sergeant Long arrived and attempted to speak with appellant, who yelled profanities at Sergeant Long through his door “loud enough for anybody ... in the apartment building to hear.” According to Officer Dean,

[w]e made every effort that we could ... to get the music turned down. We ... had dispatch attempt to call the landlord so we could gain access.... [A]t times when we couldn't get him to come to the door, or couldn't get him to come to the window, we tapped on the air conditioner, trying to get his attention.

[W]e even made the attempt to have a deputy sent out to ... the landlord's house ... [a]nd was unable to get an answer at the door.

According to Officer Dean, after about an hour, “Sergeant Long made the decision that we were going to make entry and take [appellant] into custody.” ² Sergeant Long justified his decision based on the fact that appellant “was continually causing a disturbance in an apartment building after numerous requests for him to turn down his music, to quiet down ... and he just completely refused.” According to Sergeant Long:

We were trying to make every attempt ... to get him to calm down. We attempted to bring his level of agitation down. Actually at one point had the officers who were parked out front, told them to move their cruisers out of sight so that if he ... saw the cruisers out front and that was irritating him or whatever was agitating him, to try to defuse that as much as we could.

Ah, and that was to no avail. Ah, we made phone calls into his residence on the phone. [H]e would either not answer the phone or he would be very belligerent on the phone. We actually had [Mrs. Straitiff] come up to try to talk to him, to reason with him and that was to no avail.

Officer Dean testified that appellant was advised “that we were coming in. If he didn't open the door, we were coming in after him,” and that “he was going to be placed under arrest.” Appellant refused to open the door, and responded, “You cannot come into my house.” Meanwhile, according to Officer Dean, appellant had been seen from the back window by another officer and the police had information that appellant was washing knives and could easily grab them.³

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