Warfield v. State

• Decision Date: 01 September 1988
• Docket Number: No. 92,92
• Citation: 315 Md. 474,554 A.2d 1238
• Parties: Kevin Walter WARFIELD v. STATE of Maryland. ,
• Court: Maryland Court of Appeals

Page 474

315 Md. 474

554 A.2d 1238

Kevin Walter WARFIELD v. STATE of Maryland.

No. 92, Sept. Term, 1988.

Court of Appeals of Maryland.

March 29, 1989.

Julia Doyle Bernhardt, Asst. Public Defender and Alan H. Murrell, Public Defender, on brief, Baltimore, for petitioner

Ann N. Bosse, Asst. Atty. Gen. and J. Joseph Curran, Jr., Atty. Gen., on brief, Baltimore, for respondent.

Argued before ELDRIDGE, COLE, RODOWSKY, McAULIFFE, ADKINS and BLACKWELL, JJ., and CHARLES E. ORTH, Jr., Associate Judge (retired, specially assigned).

CHARLES E. ORTH, Jr., Judge, specially assigned.

I

Doris Weller, 76 years of age, had lived in the same house in Westminster, Carroll County, Maryland, for 40 years. Since the death of her husband, an attorney, she lived alone, with only two small dogs for company. Her property was bounded by Willis Street, Centre Street, and Court Lane. Her dwelling was at the rear of the Willis Street side of the lot. A two-car garage, separate from the dwelling, was at the opposite side of the lot. It paralleled Court Lane and was set back a short distance from Centre Street. Automobile access to the garage was from Centre Street by way of a ramp leading to two doors which were operated by mechanical door openers. There was a small door at the rear of the side of the garage facing Willis Street. Its door was never locked but was self-closing by means of a spring device. There were sidewalks along Willis Street and Centre Street. Within the lot there was a walkway from Centre Street to the dwelling and from Willis Street to the dwelling. The latter walkway ran along the side of the dwelling, crossed the walkway from Centre Street, and continued to the small door in the side of the garage. See diagram appended hereto.

The inside of the garage was cluttered, hardly leaving room to squeeze in two cars. There were boxes piled along the wall of the garage adjacent to the side door. Amidst the boxes were two cans containing United States coins. They came from Mrs. Weller's brother, now deceased. From time to time he had tossed his loose change into the cans. When his health failed, he turned the cans over to Mrs. Weller. She put them in the trunk of her car. One can was about 10 inches high. The other was smaller, about the size of a one-pound coffee tin. The coins in the cans were described by Mrs. Weller as "[s]ilvers, halves, quarters, dimes, nickels and pennies." The cans had been in the trunk of the car for some eight years when Mrs. Weller decided to store them in the garage. She put them amidst the boxes by the side door. About 10 days later, she discovered that the small can and its contents were missing. She recounted the circumstances of their disappearance.

After a heavy snowfall, Mrs. Weller hired Kevin Walter Warfield to shovel the snow off the sidewalks and walkways. Warfield was not a stranger. He had worked for her on previous occasions. From her house she "watched every once in a while to see that he was catching everything...." The snow "was deep." At one point he "disappeared" for about a half an hour. She did not know where he went. She was not concerned because she was not paying him by the hour. He had shoveled the snow on Willis Street, "[h]alfways down Centre Street," and "the front walk to the front porch," when she looked out and saw him coming out of the side entrance door to the garage. She had not given him permission to enter the garage. She left the house and confronted him. She "asked him what he was doing in there." He replied: "[W]e'd have to get the garage doors open to shovel the snow." She explained: "There's a ... little ramp between the street and the garage. He said he had to ... have the garage doors open to shovel that snow...." She told him: "[Y]ou didn't need to go in the garage for that at all." He said: "Well, I got tired. I went in to rest." According to a police officer At the time Mrs. Weller confronted Warfield, he was not wearing his jacket, so she saw no "bulging pockets." She thought that the can was too big and heavy to be carried in a pocket in any event. She "knew" that "nobody else went in that garage" because "if anybody comes near that yard, [the dogs] bark their heads off...." She did not know where the dogs were while Warfield was shoveling snow, but she was "inclined to think they might've been up on the porch."

                Warfield later said that he went in to clean his boots off.   Mrs. Weller looked in the garage and noticed that the boxes stored therein were "dissembled" and that the smaller can of coins was missing.   She discussed the missing can with Warfield.   He "denied that he had anything to do with it.   He kept denying that he had taken--had anything to do with the can."   The discussion ended when Warfield remarked that there was a lot of snow to shovel and indicated that he should be paid more.   Mrs. Weller agreed to give him an additional $5.   He completed the job, and she paid him.   She never saw the smaller can or the coins it contained again
                

The value of the coins in the missing can was not clearly determined. Mrs. Weller admitted that she "truly did not know"--she had never counted them. After some urging and suggestion, she thought that the value "couldn't have been less than 50 [dollars] and I'm sure it was more than 50." According to a police officer, she had told him that the value of the coins in the missing can was $150.

It was also not certain just when Mrs. Weller had last seen the smaller can after she removed it from the trunk and placed it in the garage. She said that she had last seen the cans the evening of the day before the smaller can was missing. According to a police officer, she told him that she had seen the cans "earlier in the week." Warfield's sister testified that Mrs. Weller told her that she did not know when she last saw the coins. In any event, Mrs. Weller said that the last time she saw the cans, the garage was "undisturbed."

Mrs. Weller's view of the affair can be summed up by her response to the observation by defense counsel at the subsequent trial:

Now Mrs. Weller, isn't it a fact that you really don't know what coins you had ... you really don't know when they were missing or what was missing. All you know is that you saw [Warfield] come out of the garage. And, therefore, you surmised that he had taken your coins.

Mrs. Weller said: "Well they were there the night before and they weren't there after he came out of the garage."

Later, thinking the matter over, Mrs. Weller, "got scared." Her house was the only one on the block, her next door neighbors were away, and she thought that somebody should know about the incident. She "didn't know who to call" so she called City Hall. A police officer was sent to investigate. ¹

II

The police investigation of the missing can of coins ended with the arrest of Warfield. He was charged in an information filed by the State's Attorney for Carroll County with storehouse breaking (Maryland Code (1957, 1987 Repl.Vol.), Art. 27, § 33) first count; misdemeanor theft (Art. 27, § 342), second count; and breaking and entering a storehouse (Art. 27, § 31B), third count. A jury found him guilty of each offense. He was sentenced to 10 years on the first count and to 18 months on the second count to run concurrently. The conviction on the third count was merged into the conviction on the first count.

Warfield asks us to review the sufficiency of the evidence to sustain the convictions. The Court of Special Appeals refused to do so. Warfield v. State, 76 Md.App. 141, 543 A.2d 885 (1988). It opined that Warfield failed to preserve the sufficiency issue for the court's review. Id. at 144-147 Warfield looked to us by way of certiorari, and we granted his petition. He claims that the holding of the Court of Special Appeals that he had failed to preserve the issue of the sufficiency of the evidence was erroneous. He declares that the evidence was insufficient and urges us to pass on it.

                543 A.2d 885. 2  The intermediate appellate court affirmed the judgment as to count 1, but vacated the sentence on count 2.   It merged the conviction on count 2 into the conviction on count 1 pursuant to the teaching of Young v. State, 220 Md. 95, 100-101, 151 A.2d 140 (1959), cert. denied, 363 U.S. 853, 80 S.Ct. 1634, 4 L.Ed.2d 1735 (1960)
                

III

Article 23 of the Maryland Declaration of Rights declares:

In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact, except that the Court may pass upon the sufficiency of the evidence to sustain a conviction. ³

The constitutional authority to pass upon the sufficiency of the evidence is implemented by statute and rule. Maryland Code, Art. 27, § 593, provides:

In the trial of all criminal cases, the jury shall be the judges of law, as well as of fact, except that at the conclusion of the evidence for the State a motion for judgment of acquittal on one or more counts, or on one or more degrees of an offense, may be made by an accused on the ground that the evidence is insufficient in law to justify his conviction as to any such count or degree. If the motion is denied, he may offer evidence on his own behalf without having reserved the right to do so, but by so doing, he withdraws his motion. The motion may be made at the close of all the evidence whether or not such motion was made at the conclusion of the evidence for the State. If Maryland Rule 4-324(a) reads (emphasis added):

the motion is denied the defendant may have a review of such ruling on appeal.

A defendant may move for judgment of acquittal on one or more counts, or on one or more degrees of an offense which by law is divided into degrees, at the close of the evidence offered by the State and, in a jury trial, at the close of all the evidence. The defendant shall state with particularity all reasons why the motion should be granted. No objection to the motion for judgment of acquittal shall be necessary. A defendant does not...