Pall v. State

• Decision Date: 01 September 1996
• Docket Number: No. 1791,1791
• Citation: 117 Md.App. 242,699 A.2d 565
• Parties: Theodore Louis PALL v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 242

117 Md.App. 242

699 A.2d 565

Theodore Louis PALL v. STATE of Maryland.

No. 1791, Sept. Term, 1996.

Court of Special Appeals of Maryland.

Sept. 5, 1997.

Martha Weisheit, Asst. Public Defender (Stephen E. Harris, Public Defender, on the brief), Baltimore, for Appellant.

Celia Anderson Davis, Asst. Atty. Gen., Baltimore (J. Joseph Curran, Jr., Atty. Gen., Baltimore, Robert Dean, State's Atty. for Montgomery County, Rockville, on the brief), for Appellee.

Submitted before MOYLAN, SALMON and THIEME, JJ.

THIEME, Judge.

Appellant, Theodore Louis Pall, was convicted by a jury sitting in the Circuit Court for Montgomery County of harassment pursuant to Md. Ann.Code Ann. art. 27, § 121A. The circuit court sentenced him to 180 days, with all but 60 days suspended, and 5 years of probation. Finding that the evidence was insufficient to convict appellant, we shall reverse and remand the case with instructions that judgment be entered in his favor. To set out the factual background, we will describe the three separate instances in which appellant allegedly harassed Marci Etman.

-The First Incident-

On 16 May 1996, while shopping at MJ Designs in Gaithersburg, Marcie Etman noticed that a man, who was later identified as appellant Theodore Louis Pall, had been following her through approximately eight or ten aisles. She grew wary because the man never picked up any merchandise, although he was carrying a basket and had been in the store for quite some time. While she was purchasing her items at the check-out counter, appellant was waiting in the front of the store. He had not purchased anything. Etman became "extremely nervous" and asked an employee to escort her to her car.

-The Second Incident-

More than six weeks later, on 2 July 1996, appellant held the door for Etman as she left a record store in Congressional Shopping Center in Rockville. He then followed her to another store. When Etman realized that he was the same man who had followed her at MJ Designs, she left the second store and phoned the police. At trial, Etman described what happened after she left to call the police:

I walked the length of the shopping center very quickly, and all along the man was following, behind me the whole way, and I got to the telephone around a group--there was a lot of people. It was by a coffee shop, Starbucks. There was all kinds of people around and I went straight to the phone. And he sat down on a bench 20 feet away waiting.

The police arrived and told appellant to cease any contact with Etman; specifically, a police officer told appellant that, "if [appellant] ever saw [Etman] again, he was to just turn the other way." Appellant left without further incident.

-The Third Incident-

Two weeks later, on 20 July 1996, Etman saw appellant at a Giant Supermarket in the Flagship Shopping Center in Rockville. ¹ Appellant was again carrying an empty shopping basket. Upon seeing him, Etman immediately contacted a store employee. No evidence was presented that Etman and appellant spoke to one another, that he followed her on that day, or that appellant was aware of her presence in the grocery store. During her testimony, Etman indicated:

[R]ight away I recognized him, first of all, because it was so short of a time after, and he was wearing the exact same thing as the second time. So it was like deja vu. I mean it really, and I just panicked.

* * * * * *

I was just so frustrated, and upset, and angry, and again, I just didn't know what to do. I was like what do I do, you know, who do I go to. I didn't want to go into anymore aisles, leave myself alone. So I immediately approached a man that was working there in the meat department, and went directly over to him and told him the situation....

The employee took Etman into an office in the back of the store where she called the police. By the time police arrived, appellant could not be located.

Appellant was charged under Md. Ann.Code art. 27, § 121A (1996 Repl.Vol.), entitled "Harassment." That section reads, in pertinent part:

(a) Course of conduct defined.--In this section "course of conduct" means a persistent pattern of conduct, composed of a series of acts over a period of time, that evidences a continuity of purpose.

* * * * * *

(c) Prohibited Conduct.--A person may not follow another person in or about a public place or maliciously engage in a course of conduct that alarms or seriously annoys another person:

(1) With intent to harass, alarm, or annoy the other person;

(2) After reasonable warning or request to desist by or on behalf of the other person; and

(3) Without a legal purpose.

Appellant was charged with two counts of harassment. ² The first count alleged that on or about 2 July 1996, appellant followed Etman with the intent to harass, alarm, and annoy her after having been given reasonable warning to desist. The Second count alleged that on or about 2 July through 20 July 1996, appellant engaged in a course of conduct that seriously annoyed Etman, with the intent to harass, alarm, and annoy her after having been given a request to desist. The original charging document stated that the two incidents that comprised the second count occurred at Congressional Shopping Center; the third incident, however, actually occurred at Giant, which is located in the Flagship Shopping Center. After the State presented its case, appellant moved for judgment of acquittal on both counts due to insufficient evidence. He also moved for judgment of acquittal on Count II because the charging document erroneously stated that Giant was in the Congressional Shopping Center. The trial court denied the motion for judgment as to sufficiency of the evidence and allowed the prosecution to amend the charging document.

A jury found appellant guilty of both counts. For his conviction on Count I, appellant was sentenced to 90 days incarceration with all but 60 days suspended. For Count II, he received a 90-day suspended sentence to be served consecutive to the first sentence. Upon his release, he was to be placed on five years probation, a condition of which included no contact with Etman. After noting a timely appeal, appellant raises the following issues, which we have rephrased slightly, for our review:

I. Was there sufficient evidence to support the State's allegation that appellant had been warned prior to 2 July 1996 to desist from his offending conduct?

II. Was there sufficient evidence to support the State's allegation that appellant had engaged in a prohibited course of conduct on or about 2 July to 20 July 1996?

III. Did the trial judge err in allowing the State to amend the charging document?

IV. Did the trial judge fail to instruct the jury that the prohibited "course of conduct" must occur after a reasonable warning as indicated in the harassment statute?

I.

Appellant first asserts that the evidence was insufficient to support his conviction under Count I of harassment on 2 July 1996 because there was no evidence that appellant had been warned to desist prior to his conduct on 2 July 1996. We agree. There is sufficient evidence to convict when, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Dawson v. State, 329 Md. 275, 281, 619 A.2d 111 (1993) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). Appellate review is fashioned in such a way as to give "full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Barnhard v. State, 86 Md.App. 518, 532, 587 A.2d 561 (1991) (quoting Jackson, 443 U.S. at 319, 99 S.Ct. at 2789).

One cannot be charged with harassment under § 121A unless his offending conduct follows a "reasonable warning or request to desist by or on behalf of the other person." Art. 27, § 121A(c)(2). The trial court should have granted the Defendant's Motion for Judgment of Acquittal as to the first count for harassment on 2 July due to the lack of evidence of an adequate warning.

Count I charges that appellant harassed Etman during what we have labeled "the second incident" at Congressional Shopping Center. In order to be guilty of the crime charged, appellant must have: (1) followed another person in or about a public place; (2) without a legal purpose; (3) with intent to harass, alarm, or annoy the other person; and (4) after a reasonable warning or request to desist by or on behalf of the other person. Assuming that there was sufficient evidence of all the other elements, there is no evidence that appellant was given a "reasonable warning or request to desist" as defined by § 121A(c)(2) prior to his conduct on 2 July 1996. The State concedes that the police officer's warning on 2 July 1996 occurred after appellant's offending conduct and that appellant left after the police officer warned him to stay away from Etman. The State contends that appellant was given a reasonable warning or request to desist when on 16 May an employee escorted Etman to her car because she was fearful of appellant. We disagree.

A reasonable warning is one in which the defendant knows or has reason to know that his conduct is unwanted and is warned to stop. There is no evidence in the record that appellant saw Etman being escorted to her car. Quite simply, there is no evidence that anything was ever communicated to appellant that he should avoid Etman in a public place. Thus, he cannot be charged for his actions on 2 July 1996 because he had not previously been given a warning to stop following Etman.

Moreover, even assuming, arguendo, that appellant saw Etman being escorted to her car and was subjectively aware that she was being escorted to her car because she was afraid of appellant, an issue can be raised as to whether this constitutes a "reasonable...