Smith v. State, 1 September Term, 2009.

• Court: Court of Special Appeals of Maryland
• Writing for the Court: Greene
• Citation: 985 A.2d 1204,412 Md. 150
• Parties: Richard C. SMITH v. STATE of Maryland.
• Docket Number: No. 1 September Term, 2009.,1 September Term, 2009.
• Decision Date: 30 December 2009

985 A.2d 1204 412 Md. 150 Richard C. SMITH
v.
STATE of Maryland. No. 1 September Term, 2009. Court of Appeals of Maryland. December 30, 2009.

[985 A.2d 1207]

Kellie M. Black, Asst. Public Defender (Nancy S. Forster, Public Defender, Baltimore, MD), on brief for Respondent.

Brenda Gruss, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen., of Maryland, Baltimore, MD), on brief for Respondent.

ARGUED BEFORE BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, ADKINS, and BARBERA, JJ.

GREENE, Judge.

In a bench trial, held in the Circuit Court for Montgomery County, Richard C. Smith, the petitioner, was convicted of robbery with a dangerous weapon and use of a handgun in the commission of a felony but acquitted of several other charges, including first-degree assault. The Court of Special Appeals, in an unreported opinion, reversed the two convictions because it concluded that they were inconsistent with the acquittal for first-degree assault. The intermediate appellate court then remanded the case to the trial court with directions to enter a judgment of guilty against the petitioner for the crime of misdemeanor theft, an offense that was neither explicitly charged nor pursued at trial.

We have been asked to determine whether this remand was in error and whether a conviction for misdemeanor theft would be inconsistent with the acquittal for first-degree assault. In regard to the first issue, we shall hold that the remand was in error for two reasons: (1) the conviction for the greater offense of robbery with a dangerous weapon was reversed for inconsistency and therefore could no longer provide the basis for a conviction for the lesser offense of misdemeanor theft, and (2) neither the State nor the petitioner was given an opportunity to present an argument regarding misdemeanor theft at trial. We need not address the second issue because, consistent with our resolution of the first issue, the offense of misdemeanor theft was not properly before the Court of Special Appeals and is not properly before this Court. We shall accordingly reverse the judgment of the Court of Special Appeals with regard to the remand.

I. Procedural Background

This case originated in the Circuit Court for Montgomery County. Petitioner Richard C. Smith, under indictment, was charged with two counts of robbery with a dangerous weapon,¹ two counts of use of a handgun in the commission of a felony,² two counts of first-degree assault,³

985 A.2d 1208

and two counts of conspiracy to commit robbery with a dangerous weapon. In a bench trial, the trial judge convicted Smith of one count of robbery with a dangerous weapon and one count of use of a handgun in the commission of a felony, but acquitted Smith of the other charges, including both counts of first-degree assault.

Smith appealed his convictions to the Court of Special Appeals, arguing that, among other things, the trial court issued impermissibly inconsistent verdicts when it convicted Smith of robbery with a dangerous weapon and use of a handgun in the commission of a felony and acquitted him of first-degree assault. The intermediate appellate court, in an unreported opinion, agreed with Smith that the convictions were inconsistent, concluding that first-degree assault is a lesser included offense of both robbery with a dangerous weapon and use of a handgun in the commission of a felony. The Court of Special Appeals also agreed that the inconsistency was impermissible because the trial court had not explained the inconsistent verdicts, as required by our decision in State v. Williams, 397 Md. 172, 190, 916 A.2d 294, 305 (2007). Accordingly, the Court of Special Appeals reversed the trial court's judgment. In addition, the intermediate appellate court remanded the case to the trial court with directions to enter a guilty verdict against Smith for misdemeanor theft, an offense the State neither explicitly charged nor pursued at trial.⁴

Smith petitioned this Court for a writ of certiorari, asking us to decide the following questions:

1. Did the Court of Special Appeals err in directing the trial court to enter a guilty verdict on misdemeanor theft, where the State did not pursue such a conviction at trial?

2. Is the misdemeanor theft conviction ordered by the Court of Special Appeals impermissibly inconsistent with the trial court's acquittal on the first degree assault charge?⁵

We granted certiorari as to both questions. We answer the first question in the

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affirmative and need not answer the second question because of our resolution of the first question.

Facts of the Case

This case involves two incidents that occurred after midnight on September 9, 2006, in Silver Spring. In the first incident, Ruben Levell was walking near his apartment when a man approached him, pointed a gun at Levell's face, demanded Levell's cell phone, and searched Levell's pockets and removed Levell's keys. A second man joined the gunman and asked what the gunman had gotten from Levell. When the gunman informed the second man that he had gotten nothing, one of the men dropped Levell's keys and told him to run. Levell told the men that he needed his keys to get into his apartment, and one of the men told him to pick them up. Levell did so and ran home. Levell later identified Smith as the second man, although he acknowledged that he could not be sure.

In the second incident, Joseph Durbin was jogging when he was approached by a man who pointed a gun at his head and asked if Durbin had any money. Durbin did not, so the gunman asked if Durbin had anything else. Durbin gave the gunman his MP3 player. The gunman then patted down Durbin, asked him again if he had any money, and turned out Durbin's pockets. A second man approached and told Durbin to run away, after which the gunman asked Durbin if he wanted his house key, which had dropped from Durbin's turned-out pocket. Durbin took the key, ran to a nearby house, and called the police. Later that night, police officers drove Durbin to a location where the police had two men under arrest, and Durbin identified them as the men from the incident. At trial, Durbin said that it was possible that Smith was one of the men from the incident, but that he could not be sure.

Smith and another man, Christopher Bailey, were arrested later on the night of the two incidents. Detective Sheila Sugrue of the Montgomery County Police saw Smith and another man standing on a street corner and saw that they matched the description she had received of two men who had committed an armed robbery. When Detective Sugrue exited her car and identified herself as a police officer, Smith stopped and spoke with her while the other man, later identified as Bailey, ran away. Smith told Detective Sugrue that he had watched a movie at a nearby theater and was waiting for a bus, although no movies were playing at the theater that late at night and Detective Sugrue had seen Smith fail to get on a bus that had arrived and departed while Smith waited. Bailey was apprehended later.

Smith and Bailey were arrested. Smith was charged with eight counts: robbery with a dangerous weapon of Levell (count 1); use of a handgun in the commission of a felony, with respect to Levell (count 2); first degree assault of Levell (count 3); conspiracy to commit the armed robbery of Levell (count 4); robbery with a dangerous weapon of Durbin (count 5); use of a handgun in the commission of a felony, relating to Durbin (count 6); first-degree assault of Durbin (count 7); and conspiracy to commit robbery with a dangerous weapon of Durbin (count 8).

The case proceeded to trial in the Circuit Court for Montgomery County. At the close of the State's case, Smith moved for a judgment of acquittal on all counts. He argued that the evidence was insufficient to identify him as the second man in either incident and that, even if he were the second man, the evidence was insufficient to show that he had aided and abetted the gunman. The trial court granted the motion with respect to counts one, two, and three, and denied the motion with

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respect to the other counts. At the close of all evidence, Smith renewed his motion for a judgment of acquittal, which the trial court granted with respect to counts four and eight, as well as count seven for first-degree assault. The trial court ultimately convicted Smith of robbery with a dangerous weapon and use of a handgun in the commission of a felony, as those charges related to Durbin.

On appeal, as explained above, the Court of Special Appeals reversed both convictions because it concluded they were inconsistent with the acquittal for first-degree assault. The intermediate appellate court then remanded the case to the trial court with instructions to enter a verdict of guilty against Smith for misdemeanor theft. We granted Smith's petition for a writ of certiorari. Smith v. State, 407 Md. 276, 964 A.2d 675 (2009).

II.

We first address whether the Court of Special Appeals erred in remanding the case to the trial court with directions to enter a verdict of guilty for misdemeanor theft even though that offense was never charged or pursued at trial. We shall hold that such a remand was impermissible for two reasons. First, the Court of Special Appeals reversed the conviction for robbery with a dangerous weapon due to inconsistency. This conviction, now reversed, could no longer provide the basis for a conviction for the lesser included offense of misdemeanor theft. Second, neither Smith nor the State had an opportunity to present arguments regarding misdemeanor theft in the trial court. The parties must be given that opportunity before a defendant may be convicted of an uncharged lesser included offense.

Parties' Contentions

Smith presents several arguments why he believes that the intermediate appellate court erred. He first refutes the Court of Special Appeals' reliance on Hagans v. State, 316 Md. 429, 559 A.2d 792 (1989), in directing the trial court to...