Stubbs v. State

• Decision Date: 09 September 2008
• Docket Number: No. 86, September Term, 2007.,86, September Term, 2007.
• Citation: 956 A.2d 155,406 Md. 34
• Parties: Steven STUBBS v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

956 A.2d 155

406 Md. 34

Steven STUBBS v.STATE of Maryland.

No. 86, September Term, 2007.

Court of Appeals of Maryland.

September 9, 2008.

Nancy S. Forster, Public Defender, Baltimore, for petitioner.

Brian S. Kleinbord, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen., of Maryland, Baltimore), on brief, for respondent.

Argued before BELL, C.J.,^*RAKER, HARRELL, BATTAGLIA, GREENE, MURPHY and DALE R. CATHELL(Retired, specially assigned), JJ.

MURPHY, J.

By Chapter 130, Acts of 2004, Maryland's Consolidated Theft Statute was amended to add the offense of theft of property or services with a value of less than $100 ("theft under $100").It is clear from the legislative history that this offense was created (in the words of the FLOOR REPORT of Senate Bill 513, which was passed by the General Assembly and signed by the Governor on April 27, 2004)"in an attempt to keep some relatively minor theft-related cases before the District Court."It is also clear that the General Assembly intended that, unless this new offense was specifically charged by the State, the offense of theft under $100 would not be a lesser included offense of theft of property or services with a value of less than $500 ("theft under $500").The following provisions have been "on the books" since October 1, 2004:

Section 7-104(g) of the Criminal Law Article, in pertinent part, provides:

(2) Except as provided in paragraphs (3) and (4) of this subsection, a person convicted of theft of property or services with a value of less than $500, is guilty of a misdemeanor and:

(i) is subject to imprisonment not exceeding 18 months or a fine not exceeding $500 or both; and

(ii) shall restore the property taken to the owner or pay the owner the value of the property or services.

(3) A person convicted of theft of property or services with a value of less than $100 is guilty of a misdemeanor and:

(i) is subject to imprisonment not exceeding 90 days or a fine not exceeding $500 or both; and

(ii) shall restore the property taken to the owner or pay the owner the value of the property or services.

* * *

Section 7-103 of the Criminal Law Article, in pertinent part, provides:

(a)"Value" defined.— In this section, "value" means:

(1) the market value of the property or service at the time and place of the crime; or

(2) if the market value cannot satisfactorily be ascertained, the cost of the replacement of the property or service within a reasonable time after the crime.

* * *

(e)When value cannot be determined.—

(1) For the purposes of determining whether a theft violation subject to either § 7-104(g)(1) or (2) of this subtitle has been committed, when it cannot be determined whether the value of the property or service is more or less than $500 under the standards of this section, the value is deemed to be less than $500.

(2) For the purposes of determining whether a theft violation subject to either § 7-104(g)(2) or (3) of this subtitle has been committed, when it cannot be determined whether the value of the property or service is more or less than $100 under the standards of this section, the value is deemed to be less than $100.

Section 7-108 of the Criminal Law Article, in pertinent part, provides:

(d)Lesser included crime status not available unless charged.— Unless specifically charged by the State, theft of property or services with a value of less than $100 as provided under § 7-104(g)(3) of this subtitle may not be considered a lesser included crime of any other crime.

Section 7-110(b) of the Criminal Law Article, in pertinent part, provides:

(2) It is not a defense to the crime of theft of property or services with a value of less than $100 as provided under § 7-104(g)(3) of this subtitle that the value of the property or services at issue is $100 or more.

The case at bar presents the question of whether the 2004amendments had the unintended consequences of (1) requiring the State to prove that a defendant charged only with theft under $500 stole at least $100 worth of property or services, or (2) limiting the maximum sentence that can be imposed on a defendant convicted of theft under $500 when the evidence presented at trial establishes that the stolen property was worth less than $100.For the reasons that follow, we hold that if a defendant has not been specifically charged with theft under $100, (1)the defendant cannot be convicted of that offense, (2) a conviction for theft under $500 does not require proof that the defendant stole property or services worth at least $100, and (3) the penalty for theft under $100 does not limit the sentence that can be imposed on the defendant convicted of theft under $500.

Background

In the District Court of Maryland, sitting in Anne Arundel County, Steven Stubbs, petitioner, was charged by Uniform Criminal Citation with the crime of theft of property with a value of less than $500.The citation issued to petitioner contained the following assertions:

It is formally charged that [petitioner] on October 12, 2006 at 4:09 p.m. at Home Depot, 66 Mountain Rd. Glen Burnie, Anne Arundel County, Maryland did steal property of Home Depot having a value $139.86 less than $500, in the violation of CL 7-104 of the Annotated Code of Maryland.

All events occurred in Anne Arundel County.

Petitioner was convicted in the District Court, noted a timely appeal, and received a de novo trial in the Circuit Court for Anne Arundel County.During the Circuit Court proceeding, the State's case consisted of a single witness — Mr. Frank Blume, a Home Depot loss prevention officer, who testified that he saw petitioner steal a set of wrenches.The prosecutor did not ask Mr. Blume any questions about the value of the wrenches.

The following transpired at the conclusion of the State's case-in-chief:

[Defense counsel]: At this time I would like to make a motion for judgment of acquittal in this matter.It's a sole count of theft under $500.Your Honor, I do not believe that the State's Attorney, I realize even though in the light most favorable to the State at this time, I don't believe that they have met their burden of proof.

I would draw the Court's attention that under 7-103, determination of value, there was no value presented here today in this case at all.Not once did the witness testify as to what the value of the wrenches were.Specifically, it says if a value can't be determined if it's a theft under that would be, and I'm looking at three, 7-103(3)(e) and it does under when value cannot be determined and then it lists basically when it's the theft, or the value of the property is more or less than $500 under the standard section it's deemed to be less than $500 and again then —

THE COURT: Could you say that again, more slowly, please.

[Defense counsel]: Sure.It says when the value cannot be determined for purposes of determining whether a theft violation is subject to 7-104(g)(1) or (g)(2), which would be the general theft provision of theft under $500 and theft under $100, it indicates that whether the value of the property or service is more or less than $500 under the standards of this section the value is deemed to be less than $500.

Then it goes on to subsection (2) and it says for purposes of determining whether a theft violation is subject again to the same 7-104(g)(2) or (3), which excuse me would then be the theft under $100, it's then whether the value of the property or service is more or less than $100 under the standard of this section, the value is deemed to be less than $100.

Not at any time did the witness testify as to what the value was of the wrench set, Your Honor.And I don't believe they've met their burden of proof.

* * *

[The Prosecutor]: Your Honor, he's only charged with theft under $500.This is not for the felony.So by not showing any value it is deemed to be the misdemeanor and not the felony, which of course he's not even charged with that.

So I would argue to the Court that I didn't have to show a value for the charge that he's charged with.

After the Circuit Court denied petitioner's motion for judgment of acquittal, petitioner's trial counsel called Mr. Blume as a defense witness, and "rested" after Mr. Blume testified that the stolen property was "worth $69.93."The following transpired at this point:

[Defense Counsel]: Your Honor, I would renew again a motion and evidence I presented in a motion for judgment of acquittal in the statements made ... in regards to determination of value, I will draw the Court's attention again to 7-103.

* * *

THE COURT: 7-103(e)?

[Defense counsel]: Yes.(e) and then (1) and then also (2).

THE COURT: 7-103(e). Okay.(e) When it cannot be determined whether the value of the property or service is more or less than $500, under the standards of this section the value is deemed to be less than $500.Okay.

[Defense counsel]: And then subsection (2) of that as well.

* * *

THE COURT: Okay.For the purpose of determining whether a theft violation subject to either 7-104(g)(2) or (3) of this subtitle have been committed, when it cannot be determined whether the value of the property or service is more or less than $100, under the standards of this section the value is deemed to be less than $100.

7-104(g)(2) and (3) is, oh, okay.What is your argument?

[Defense counsel]: Your Honor, in subsection 7-104(g)(2) and (g)(3), (g)(2) relates to theft under $500 and (g)(3) relates to theft under $100.We feel that it's been improperly charged, although it is up to the officer with the initial citation, the State's attorney, the prosecutor is the one who prosecutes this case.They are the ones who did the charging document.They are the ones who make the final decision.And oftentimes as this Court is well aware, charges in District Court become different charges if they're forwarded to Circuit Court.

At times, different state's attorneys will view it differently.What I'm saying to this Court is that the value of this...