Painter v. State

• Decision Date: 05 May 2004
• Docket Number: No. 848,848
• Citation: 848 A.2d 692,157 Md. App. 1
• Parties: Robert Stanley PAINTER, Jr. v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

848 A.2d 692

157 Md. App. 1

Robert Stanley PAINTER, Jr. v. STATE of Maryland.

No. 848, Sept. Term, 2003.

Court of Special Appeals of Maryland.

May 5, 2004.

Timothy E. Clarke, Rockville, for Appellant.

Michelle W. Cole (J. Joseph Curran, Jr., Atty. Gen. on the brief), Baltimore, for Appellee.

Panel: KRAUSER, BARBERA, THEODORE G. BLOOM (Retired, specially assigned), JJ. KRAUSER, Judge.

Appellant Robert C. Painter Jr. challenges the sufficiency of the evidence that was used to convict him in the Circuit Court for Frederick County in what may be the closest thing to a "rustling" case a Maryland court may ever see. Appellant, it seems, stole a number of calves from two different Maryland farms over a one week period and then sold them at a livestock auction in Pennsylvania. While hardly the stuff of campfire legends, it did result in his being convicted of two counts of theft and one count of theft by continuing scheme.

What makes this appeal noteworthy, however, is not the novelty or the nature of his crime, but appellant's claim that his convictions should be overturned under the Interstate Agreement on Detainers Act ("IAD"), Md.Code (1999), §§ 8-402 to 8-411 of the Correctional Services Article ("CSA"). At the time that he was charged in Frederick County, Maryland with these offenses, he was incarcerated in Fulton County, Pennsylvania. After waiving extradition, he was transported to Maryland and convicted by a jury in the Circuit Court for Frederick County of the Maryland offenses.

Before sentence was imposed, however, appellant was released to Pennsylvania authorities to answer unrelated criminal charges in Mifflin County, Pennsylvania. To assure his prompt return, Maryland lodged a detainer in that county. A week later, appellant was returned to Maryland for sentencing. At sentencing, the circuit court merged the separate felony theft convictions into the theft by continuing scheme conviction and sentenced appellant to a term of fifteen years' imprisonment. The harshness of the sentence was a reflection of the fact that appellant was no stranger to thievery.

But it is not the sentence about which appellant complains. His ire is directed at having been transported back and forth between Maryland and Pennsylvania, which he claims violated both the "antishuffling" provision and the "30-day" rule of the IAD. Because we do not agree and find that there was sufficient evidence to support his convictions, we shall affirm the judgment of the Frederick County circuit court.

Background

Sometime during the evening of January 15, 2002, or the early morning of January 16, 2002, four Holstein heifer calves¹ were stolen from the farm of James Noffsinger. Two of the calves were a month and a half old; the other two were only a few days old. Three of the four calves, Noffsinger testified at trial, were of "a black and white mix," like most of his herd. The fourth calf was "predominantly all black." That calf could be readily identified because its front legs were "turned down" at birth. The two younger calves were worth approximately $400 to $500, and the two older calves were worth approximately $300 to $400. None of the calves bore any identification tags.

Noffsinger reported the theft to authorities, who, in turn, notified local livestock markets about the missing calves. Among those notified was Eugene Glick, the owner of the Belleville Livestock Market in Pennsylvania. Glick testified at trial that appellant had brought Holstein calves to his market to be sold at auction on the very day of the theft, January 16, 2002. Appellant informed Glick that the calves were bred from cattle that he had purchased at the Belleville market. That statement Glick found "a little bit odd." Appellant, he explained, had bought those cows only three or four months earlier, and the gestation period for a cow is nine months.

Of the five calves that appellant brought to the January 16th auction, three of them, according to the market's records, were sold to a John Diehl. He paid $1,230 for them. Upon learning of that sale, Noffsinger went to the Diehl farm, and, based on the calves' size and markings, he identified two of the calves as his. A third calf he believed belonged to him but he could not be "positively sure." With Diehl's permission, Noffsinger took all three calves back to his farm in Frederick, but later returned one of the calves after concluding that it was not one of his. On January 16, 2002, appellant also sold a predominantly black calf with "turned under" legs to an Amish farmer in Pennsylvania. Unfortunately, Noffsinger was not able to identify or recover that calf because it died soon after the sale. The missing fourth calf was never located.

A week later, on the night of January 22 or the morning of January 23, 2002, nine Holstein heifer calves were stolen from the farm of Edward O'Hara, a neighbor of Noffsinger's. Eight of those calves were worth $700 each, and the ninth was worth $450.

Unlike Nonsigner's calves, most of O'Hara's calves were registered and tagged. O'Hara testified that he placed permanent round button ear tags provided by the Holstein Association USA on his cattle and registered them with that organization. Of the nine calves that were stolen, seven were tagged and registered with the Holstein Association. Holstein tags and the distinctive holes they make are rare, O'Hara opined. No other cattle in the area bore such tags.

After calling local livestock markets, authorities learned that appellant had sold seven calves at the Belleville market within twenty-four hours of the theft of O'Hara's calves. They further learned that he had visited O'Hara's farm on two occasions and had, each time, expressed an interest in purchasing some of O'Hara's calves. But no such sale had ever occurred, nor had O'Hara ever authorized appellant to sell his calves.

Advised that one of his calves may have been sold to Glick at the Belleville Market on January 23, 2002, O'Hara went to Glick's Pennsylvania farm to see if the purchased calf was his. Before O'Hara arrived, Glick instructed his son to take O'Hara to the pen where the calf was being housed with six or eight other heifers, but not to tell O'Hara which calf Glick had just purchased. When O'Hara was nonetheless able to identify the newly-purchased calf, Glick permitted O'Hara to take the calf back to his farm in Frederick.

Some of the calves that appellant brought to the auction on January 23, 2002, were sold to Diehl. On that day, Diehl paid a total of $1,250 for three calves. When O'Hara learned of this transaction, he went to Diehl's farm. There, he recognized three of the calves as his own. All three calves had distinctive holes in their ears where O'Hara's round button tags had been. O'Hara was also able to later identify a calf that appellant had sold to an Amish farmer at auction on January 23, 2002.

When Pennsylvania authorities subsequently searched appellant's Pennsylvania farm, O'Hara accompanied them and identified four more calves as his. These calves also had the telltale ear holes. By performing blood tests on the retrieved calves, the Holstein Association was able to confirm that some of those calves were indeed O'Hara's.

Joshua Yoder testified at trial that he transported calves from appellant's farm to auction "a few times," and confirmed that he did so in the middle of January. Yoder reported that appellant claimed he had raised the calves himself. That claim, Yoder thought, was "unusual." There were not "that many matured cattle around," Yoder explained, "that [appellant] could grow that many calves in that short of time from that amount of matured cattle." Yoder also testified that appellant had a truck capable of transporting calves.

The State charged appellant in the District Court in Frederick County with two counts of felony theft, two counts of unauthorized use of livestock, and one count of felony theft by scheme. At that time, appellant was imprisoned in Fulton County Pennsylvania. After waiving extradition, appellant returned to Maryland to face the pending Maryland charges.

At trial, the circuit court granted appellant's motion for judgment of acquittal on the unauthorized use of livestock charges, but allowed the remaining charges to go to the jury. The jury convicted appellant of two counts of felony theft and one count of felony theft by continuing scheme.

Before sentencing, appellant was released to Pennsylvania authorities to face unrelated criminal charges in Mifflin County, Pennsylvania, but Maryland lodged a detainer against appellant in Mifflin County to assure that he would be returned to Maryland for sentencing. A week later, he was. Upon his return to Maryland, appellant moved to dismiss the charges against him, arguing that Maryland violated the IAD, CSA §§ 8-402 to 8-411. Stating that it "did not think dismissal of the charges is a remedy here in Maryland if there are any violations [of the IAD]" the circuit court denied appellant's request and sentenced him to a term of fifteen years' imprisonment.

Discussion

I

Appellant contends that the circuit court erred in failing to instruct the jury on territorial jurisdiction. He argues that the circuit court "should have told the jury that in order to convict the State must prove beyond a reasonable doubt that [appellant] came to Maryland and that in Maryland he took and carried away the calves." The premise of appellant's argument is correct that the jury must be instructed as to jurisdiction, but not the conclusion—that the instruction was not given.

The circuit court, at appellant's request, gave the following supplemental instruction to the jury:

Now ladies and gentlemen, in outlining the elements of each crime, each crime must have been committed in Frederick County. I don't know if I mentioned that. But because we are talking about—sometimes we talked about West Virginia and sometimes Pennsylvania—Maryland has no jurisdiction to do anything

...