*1 suppres- in, upon by, the but not ruled raised which had been sion court. ruling hearing, suppression
Despite the record (b),2 this court, Rule 8-131 suppression during ground not mentioned the case on decides Court unfair to the approach is an hearing. Such suppression in the our decisions. While inconsistent with litigants and defendant, approach the same to the it is unfair present case grant for the grounds to find could be used case in some other motion. suppression of a joins to state that he authorized me BELL has Judge
Chief dissenting opinion. this A.2d 389 COLES, Jr.
Leon Maryland. STATE Term, Sept. 2002. No. Maryland. Appeals
Court April 131(b)provides as follows: 2. Rule 8— (1) appel- Prior "(b) Appeals limitations. In Court of —Additional granting by provided the order Unless otherwise late decision. certiorari, by reviewing the Court a decision rendered writ of capacity, acting appellate in an Appeals by a circuit court Special or only that has ordinarily an issue will consider Appeals the Court of any cross-petition and that petition for certiorari in the been raised Appeals. Whenever an review the Court preserved for has been involves, cross-petition petition in a for certiorari raised issue the trial court com- assertion that implicitly, the expressly or either error, may the error Appeals consider whether the Court mitted though of harm or the matter non-prejudicial even harmless or cross-petition.” petition or in a in the prejudice was not raised *2 DC, Lyman, Washington, petitioner. P. for Jennifer *3 (J. Kelley, Attorney Joseph Assistant General Edward J. brief), Curran, Jr., Balti- Attorney Maryland, on General more, respondent. for ELDRIDGE, RAKER, WILNER, C.J.,
BELL, and BATTAGLIA, CATHELL, HARRELL and JJ. BATTAGLIA, J. “Coles”) (hereinafter Coles, entered the LeOn Jr.
Petitioner teller, occasions, up walked to a separate same bank on three money. presented demanding with a note After each and her money. on bank with the Based complied, teller Coles left the conduct, County, sitting Circuit for Baltimore this Court him of counts jury, without a convicted three on the basis that challenges the convictions Coles prove that stole there was insufficient evidence fact money instilling fear in the tellers. Because rational case, conclude, the circumstances this finder under could satisfy sufficient the intimidation there was evidence affirm the robbery, we shall “putting fear” element convictions.
\Y¡ Background I. 23, 1999, a.m., Coles, January 10:00 Saturday,
On at about hat, shirt, wearing jacket bulky and a scarf baseball neck, of First National around his entered the Dundalk branch (hereinafter National”), approached Bank of Maryland “First Estes, gave bag teller Anna her a note she “|P]ut stating, bag.” The note money recalled as some alarm, anybody “not to hit an not to also ordered her let know,” Estes, thirty and to the note. Ms. who had return teller, experience as a to talk him out of it” and years “tried pushed to the floor.” Ms. “took elbow the note [her] $120, bills, placed comprised twenty-dollar Estes then of six it, bag, opened into and handed it to closed Coles. inside, said, bag, the note?” Ms looked “Where’s know,” “I responded, whereupon Estes don’t Coles “looked at [her],” warned, “Well, you better find it.” Ms. Estes complied. with Ms. The incident Coles made Estes “a little nervous” and concerned “because people there were other “you happen” the bank” and because never know what could such a situation. Saturday, approximately
On November 10:00 a.m., bank, Coles walked into the same branch of the the name changed of which had from First National to Allfirst. Coles Hall, approached who him teller Janice “welcomed to Allfirst.” silent, Standing money Coles handed her a withdrawal market “immediately form had not been filled out. Ms. Hall felt over, something was bad.” She turned the form and on the written, recalled, bag, back was she “Put no *4 money, get bait and no one will hurt.” Ms. Hall’s “heart fast, beating really got very started nervous.” [she] Coles counter, put bag a placed then on the into which Ms. Hall $1,545.” over,” “about Ms. Hall tried to “push the note but said, “put Coles his hand over” and back [the “Give me note].” quickly She did so “as as bag [she] could.” Coles took the money and Ms. left the bank. Hall related the incident “was the moment of [her] scariest life.” later, Coles entered on December
About two weeks bank, to a counter Allfirst walked over branch of the same forms, to a speak in line to got picked up some where he suspicious was “a little teller, Ms. Swann Bernice Swann. “writing was doing” because Coles [Coles] about what suspicions were con- Ms. Swann’s standing line.” he was note, a which was bag handed her firmed when Coles account transfer form. The back of a retail written on the commanded, bag no alarms money all in the “Put note $1,070 into by placing complied you.” thank Ms. Swann counter, “you can’t see of the teller from her side bag, because had.” no what [Coles] “had idea and she therefore person,” security Indeed, bank’s camera entered from the photograph knit wearing long pants, jacket, into evidence shows Coles Moreover, peo- there were “other sunglasses. and dark cap, bank, you’re supposed what comply. You do you so ple bag, in the placed the do.” After Ms. Swann incident, anything to never said During the left the bank. to return the note. and did not ask her Ms. Swann upon based police arrested Coles December On in- girlfriend that he had been by his provided information in a charged later was robberies. He in the three bank volved for in the Circuit Court information filed criminal nine-count counts concerned the County. first three The Baltimore incident, charging Coles with 1999 bank January Estes, and misdemeanor of Anna degree assault1 and second states, Code, 12(b)(1957, "Except Repl.Vol.), §27 Art. subheading, ‘assault’ means offenses provided in this as otherwise assault, battery, which terms retain their battery, and assault prohibits §27 12A second meanings." Code. Art. judicially determined penalties the crime. The statute degree proscribes for assault provides: (a) may an assault. not commit Prohibition. —A General Violation; guilty (b) penalties. person who violates this section is —A degree and on conviction in the second misdemeanor of assault $2,500 imprisonment for not than subject a fine of not more years than 10 or both. more January 1999 was at the bank on the incident We note Code, they §§ existed in the 1996 governed by 12 and 12A as Art. incidents, subsequent The two Replacement Volume cited above.
119 25, six the through theft.2 Counts four involved November incident, charging robbery degree 2000 bank and second as- Hall, felony sault of Janice and Counts through theft.3 seven 9, incident, nine covered the bank charging December degree and second of assault Bernice Swann and felony theft.
At of pretrial hearing the conclusion motions on June Thereafter, right jury Coles waived his to a trial. on 7, 2001, June the Honorable Lawrence R. Daniels of the Circuit Court for County testimony Baltimore heard from the tellers, evidence, documentary three and including reviewed security two camera photographs given and the note to Ms. Swann on 2000. December case,
At close of the the State’s for judgment Coles moved acquittal, of arguing, among things, that other the had State to prove failed sufficient facts to meet the intimidation element of motion, After the Circuit Court denied Coles’s Coles testified that he was the who “in individual stood front 23, 1999, of’ the on January tellers November maintained, however, December 2000. Coles that he was physically mentally girlfriend was, abused his which occurred on November December were governed by Volume, Supplement the Replacement
which changes there were no substantive in Sections 12 and 12A. Code, Maryland 342(1)(2) (1957, § Repl.Vol.), Art. 27 states in 2. part: A person convicted property theft where the or services that was subject $300 of the theft has a value less guilty than is of a misdemeanor and shall property restore the taken to the owner or services, pay him the property value or and be fined not more $500, months, imprisoned than or be for not more than 18 or be both imprisoned fined and in the discretion court. . .. Code, 342(f)(1) (1957, Repl.Vol., Art. Supp.), states: A convicted theft where property or services that was subject $300 greater guilty theft has a value of or of a felony property and shall pay restore the taken to the owner or him services, property value and be fined not more that $1,000, imprisoned be years, for not more than 15 or be both fined imprisoned in the discretion of the court. case, therefore, At close of his under duress. acting acquittal, which was judgment his motion for renewed by the denied Circuit Court. *6 Daniels, “His guilt stated: adjudicating Coles’s
Judge offenses, and there- that committed these confession admits he fore, of bank guilty charged him as the three Court finds of to offenses regard the lesser-included robberies. With sentencing theft, for they merge into the robberies assault and then Judge sentenced Coles: purposes.” Daniels years is to the of the Court ten Count sentence [O]n Corrections, being imposed Department of sentence mandatory being a minimum Section 6434 under Article count, which robbery is Count sentence. As to the second imposes a Hall, consecu robbery of Janice the Court Department to years ten of Corrections. tive sentence of Judge Daniels further declared: count which is Count the Court
On the third will years. of ten The Court a consecutive sentence imposes to be time suspend years, of those so total nine jail, you’ll be on you get out years. When served years probation, with the other nine years’ supervised five your over head. hanging 4-245, Maryland the State filed notice intent
4.
Rule
Pursuant
against
subsequent
to obtain an
proceed
Coles
offender
order
as
Code,
643B(d)(1957,
Maryland
§27
Art.
sentence under
enhanced
Vol.,
requires, among
Maryland
other
Repl
Supp.).
Rule 4-245
Attorney provide
alleged prior
things,
notice of an
the State’s
may
subsequent
a defendant as
a court
sentence
conviction before
offender.
Code,
643B(d) provides:
Art. 27
Except
provided in sub-
Second conviction
crime
of violence. —
section, any
(g)
has
convicted on a
who
been
section
of this
violence,
including
for an
prior
a crime of
a conviction
occasion of
a term
October
has served
offense committed before
be
for that conviction shall
in a correctional
institution
confinement
sentenced,
being
of a crime of violence
on
convicted a second time
imprisonment
for the term
after
committed
October
on
law, but,
event,
years.
than
The court
not less
allowed
10-year
mandatory
part
all
sentence
may
suspend
required under this subsection.
robbery in
of armed
was convicted
Coles conceded
appealed to
of Special Appeals,
the Court
which
certiorari,
unreported opinion.
affirmed
an
granted
We
(2002), to
Coles v.
II. Whether the evidence was sufficient Cole’s degree convictions for three assault. counts second pronounce spe- III. Whether the Circuit Court failed to assault, on degree cific verdict counts second theft, so, felony theft, and if misdemeanor wheth- er that failure an on required acquittal those counts. case, hold that We under the of this circumstances evidence sufficient for a fact finder to beyond conclude *7 reasonable doubt that guilty Coles was of three counts not, light holding, not, In of our we need and do address Coles’s second and third contentions.
II. of Review Standard
The standard for determining whether evidence support to a is sufficient criminal conviction “whether rational trier of could fact have found the essential elements beyond State, the Moye ] reasonable doubt.” v. 369 crime! 12, 821, (2002) 2, Albrecht, Md. 796 (citing A.2d 827 v. State 475, 478-79, (1994)). 336, 336 Md. 649 A.2d In applying 337 standard, “view light we the evidence in most the favor- phrased questions presented petition in his ior as certiorari follows: presenting requesting money, I. Whether a note other without conduct, threatening satisfies the constructive force element rob- bery place if it takes a bank? teller, presenting requesting money Whether II. a note to a bank conduct, threatening supports specific without other an inference of frighten, required intent for assault? Whether, merits, III. at conclusion of a trial on a trial pronounce court's failure independent verdicts on con- counts tained operates acquittal multi-count criminal information as an those as to counts? 122 give regard “due prosecution” [fact
able evidence, facts, conflicting resolution of findings of its finder’s] and, its significantly, opportunity observe assess State, v. of witnesses.” Id. McDonald (quoting 347 credibility not, however, (1997)). 474, 675, do 452, 685 We Md. to a record that would amount “undertake review of the 275, 325, v. retrial of the case.” Winder 765 (2001). 97, Indeed, 275, A.2d our A.2d 97. 362 Md. that the evidence task not to determine whether believe v. State guilt beyond a doubt. at trial reasonable established (2000). Rather, 528, 97, A.2d Pagotto, Md. “any determining rational our is limited to whether review Id. (quot could made determination. trier fact” have Virginia, Jackson ing 443 U.S. 99 S.Ct. (1979)). 560, 573 61 L.Ed.2d
III. Discussion Ms. at the Dundalk stole Estes
When Coles $120 23,1999, robbery, a January Bank on branch of First National crime, statutorily penalty in- prescribed common law had years.” Mary- cluding not more than 15 “imprisonment for (1957, By Code, time Repl.Vol.);6 Art. 27 land Hall and Ms. the same from Ms. Swann Coles stole Allfirst on 2000 and December branch of November codified the crime Maryland Legislature had it replacing 486 and with by repealing former Section See 486.7 Laws of Ch. a revised Section 6. The version of Section 486 stated: *8 rob, attempt robbery crime of or or Every person convicted of the to fact, felony, guilty accessory thereto is of a shall restore as before owner, pay full thing shall to him the robbed or taken to the or thereof, imprisonment be to for not more than sentenced value years. 15 part: in The of 486 stated 7. 200 version Section (b) required; obtaining by services of another force.— of intent Proof (1) meaning, except Robbery judicially determined retains its deprive requires proof of of robbery intent another conviction (2) by obtaining property; Robbery the service of another or includes force of force. or threat
123 judicially robbery’s § 1. Section 486 deter- The revised retains adds, meaning, “obtaining by of another mined service Md.Code, (1957, § Art. force or of force.” 27 486 1996 threat Repl.Vol., Supp.) 2000 27,8 annotating
The
Article
Committee
Revise
the Note
27,
486,
“judicially
Art.
meaning”
identified the
determined
robbery
taking
to in that
felonious
referred
Section
“the
another,
carrying away
personal property
from
violence,
person
presence, by
by putting
his
his
or
him in
State,
fear,”
407, 413,
Darby
see
v.
584,
Md.App.
239 A.2d
denied,
Gover,
588,
(1968);
cert.
v.
State
124 (1988). in William Hawkins’ 233 The distinction described Crown, chapter in the entitled 1724 Treatise Pleas of of Robbery”: “Of 2, puts him Larceny from the Person of a Man either
Sect. Fear, him Robbery; put in then it is called or does Fear, Larceny from the barely, and then it is called Robbery Taking 3. is a felonious and violent person. Sect. another, Money away any of or from the Person Goods Value, him in putting Fear. by at 203, at A.2d 233. As least one
Id. 539 at evidenced 1826, early as to the ancient authority, Maryland, as adhered Latrobe, Practice distinction. in Justice’s common law John 1826, published in Maryland, under Laws stated 1252: Section person,
Open larceny robbery, from the or is the and violent another, taking from felonious and forcible value, violence, or him in goods money putting or distinguishes it from larce- putting fear. The in fear other nies. 4 Blac. Comm. 203, at A.2d at
Id.
539
233-34.
Constitution,
Maryland
its first
which
adopted
In 1776
Rights
provided in its Declaration of
that the “inhabitants
...
England
Law of
entitled to the Common
are
nevertheless,
of, and amendment or
subject,
to the revision
provision
This
Legislature of this
repeal by, the
State.”
Maryland.
subsequent
in all
Constitutions
Conk
remained
58,
187,
(1969).
50,
v.
255
A.2d
191
Schillinger,
lin
Md.
257
mandate,
our decisions have
Adhering to
Constitutional
consistently recognized
common law distinction between
presence
force or
theft
on the
threat
based
Co.,
434, 439,
See,
Md.
v. Home
139
e.g.,
force.
Ledvinka
Ins.
(1921)(“
596,
‘Robbery’
larceny
person,
115 A.
598
fear....”);
by putting
Lee
accompanied by violence
375,
(1965)(same); West,
State,
224,
312
A.2d
238 Md.
robbery,
(defining
part,
A.2d at 233
Md. at
putting
“larceny
person, accompanied by
from the
violence
State,
fear”);
Md.
Bowman v.
A.2d
(1989)(same);
crime
the common law
of
“(1)
offense,
by declaring
the
than
robbery
[A]
other
that:
requires proof
deprive
conviction
of intent
to
of
another
(2)
property;
Robbery
obtaining
or
includes
the service
Md.Code,
another
force or threat of
Art. 27
force.”
486(b)(1)
(2)(1957,
Repl.Vol.,
Supp.).
West,
degree
In
we addressed “the
or
putting
of violence
requisite”
fear that is
a robbery
for
conviction.
Actual rather, force is not at issue in instant question is whether there was sufficient evidence of intimi dation, fear, placing support to Coles’s convictions for In support of his contention that the evidence was insufficient, Coles claims that component” the “assault proven beyond was not a reasonable doubt because there no “specifically evidence that he fright intended to tellers,” en the specific he threatened with “a them battery,” immediate or that an “apparent ability he had carry out” such a threat. Coles claims that our decision in State, Dixon v. (1985), 488 A.2d 962 illustrates necessary quality of evidence requisite amount that the robbery and claims evidence prove those elements Coles’s short of that standard. case falls in the instant without merit. contentions are putting Dixon, “intimidation stated that when
In action,” following “test” is “gravamen fear” is the sufficiency the evidence: determining applied be force to the apply the least [A]ny attempt attempt is made when- an assault. The constitutes another tending to reasonably any action or conduct ever there person engaged in another that the apprehension create the him. It is sufficient such force to apply about to therein is battery and to inflict a intention apparent is an there ability carry out such intention. an apparent 458-59, (quoting Lyles at 967 Id. at *11 (1970)). 178, 179 267, The defendant A.2d Md.App. his sufficiency support of the evidence to challenged Dixon 450, 488 A.2d to rob.9 Id. at with intent conviction for assault gas at a booth alone cashier was her at 963. A female approached Dixon City evening one when in Baltimore station at cashier. Id. inquiries respond and failed “thought something cashier A.2d at 963-64. The 451- “cold, ... in his hard look Dixon had a going on” because was a newspaper Dixon had because eyes” and was concerned arm, which led her to believe right his folded underneath Id. at weapon. saw a although she never weapon, had a placed Dixon a note into at 964-65. 452- read, items, want all which “I that received customer drawer A.2d at 964. The hurry.” Id. at money and your floor, alarm, and waited for dropped to the an pushed cashier at Dixon fled A.2d 964. Id. at police to come. money. Id. without battery a is to inflict of intention proof
To
whether
gauge
standard,
viewpoint of
i.e. from the
subjective
by governed
stated,
with intent to
elements of assault
"The essential
9.
In Dixon we
victim,
accused, With
By
3.
on the
1. An assault
rob are these:
451,
that an reasonable would (6th Robinson, v. F.2d 1170 Cir. United States harm”); intimidation, 1975) finding a was (holding jury justified that ... could infer position “in the teller’s as a reasonable bodily harm” when and could be “fear' implicit an threat” defendant, weap conceal coat that could a nervous leather demands, bag); a on, your money,” presents all “Give me (4th Cir.1976)(hold Harris, v. United States 530 F.2d defendant’s conduct properly could conclude ing jury that a produce fear when defendant reasonably was calculated stating, up,” hold with note “This a presented teller a manner that assumed [the teller] his hand such “placed Amos, v. United States weapon”); had a [the defendant] (4th pock hand in Cir.1977)(holding that defendant’s F.2d 899 intimidation); United States money proved and demand for et (10th Slater, jury Cir.1982)(holding that “[a] 692 F.2d upon and relied” defendant] that intended [the could conclude “unhesitatingly money when defendant entered fear steal and seized occupied tellers [bank] the area drawers”; further, that “expectation noting their cash kind of an of this in the context incident injury was reasonable it not uncom to use are weapon willingness a where mon.”)) “crystal authority, it was
In
of this
we stated
light
weapon may be
of an undisclosed
“possession
clear”
Id.
surrounding
circumstances.”
facts and
inferred from the
court was
held that
trial
at
We the same conclusion as the second Hall, toup Coles walked Janice who was working a teller time, saying and without anything, bag handed her money, that note stated that demanding In addition note. *14 Hall complied, get keep “no will hurt.” Ms. tried if she one “[Gjive said, note, his over” and me “put but Coles hand the that was reported Hall the incident “the back Ms. [the note].” Obviously, language the that life.” [her] scariest moment suggest bodily harm for get “no one will hurt” is sufficient money gave Hall him because she non-compliance. Ms. the fearful, any as actually would reasonable felt intimidated analysis, necessary in this Although actual fear is not person. a reason- “probative it is of whether nonetheless evidence the circum- have been afraid under same able would Gilmore, (6th 398, 403 States 282 F.3d stances.” United Cir.2002). Coles, jacket a in which robbery, wearing third
During the bank, weapon, the easily concealed a entered he could have counter, and her Swann’s handed up to teller Bernice walked read, money bag no that “Put all the the bag and note complied because from behind you.” thank Ms. Swann alarms counter, person” and “had could not “see a therefore her she Moreover, had.” there were “other no idea what [Coles] you’re bank, you comply. You do what the so people Viewing testimony light this most to do.” supposed fact State, conclude that a rational finder favorable to the we of, money “Put all that the demand could have concluded alarms,” command, “no were sufficient to bag,” and the in the bodily fear of harm. create time, in which wearing jacket also at the easily weapon. As we observed could have concealed
Dixon, may weapon an undisclosed be inferred presence Dixon, circumstances, A.2d at 302 Md. at from the may satisfy deadly weapon of a presence and the robbery. Bowman v. constructive violence element (1989). Thus, A.2d at we Md. at conduct was for a that of Coles’s sufficient hold the evidence constructive violence rational fact finder to conclude in the case. robbery was satisfied instant aspect concluding, majority In align so ourselves with of federal that have addressed situations similar to circuits interpreting instant federal bank statu case while Gilmore, te.11 See 403 (holding “unequivocal 282 F.3d at employees written and verbal demands for bank are intimidation,” finding reasoning a sufficient for a basis “[ijntimidation require proof does not of express threats of harm, bodily motions, threatening body physical possi or the Hill, United States v. bility of a weapon”); concealed 187 F.3d (7th Cir.1999)(characterizing actions intimidating counter, stated, plastic bag where defendant threw on “Give your money” give all funny me and “don’t me term, money” using derogatory hurry); ordered teller (5th McCarty, United States v. 36 F.3d 1357-59 Cir. *15 1994) (affirming robbery by conviction of intimidation where defendant in disguise gave entered bank and note to teller United States v. stating, robbery”); calm. This is “Be Lucas, (9th 248 Cir.1992)(finding F.2d intimidation where the and “put money verbal written demand was the in bag,” counter); the placed plastic bags and defendant two on Smith, United v. (8th States 973 F.2d 603-605 2113(a) § 11. 18 part: U.S.C. states in Whoever, takes, violence, intimidation, by by attempts force and or or take, another, presence the or or obtains or attempts any property any thing to obtain extortion or or to, care, control, belonging custody, management, value inor or of, bank, union, possession any savings credit and loan imprisoned . . [s]liall association . be fined under this title or twenty years, more than or both. 2113(a) (2003). § 18 U.S.C. Coles claims that the federal statute is inapplicable Maryland robbery it is than because broader law. We disagree. 2113(a) predecessor phrase "putting The to Section used the fear,” description type the same of the of constructive violence required Higdon, cases. United States. v. F.2d (5th Cir.1987). change The in the federal statute has been viewed substantive, as technical than dictionary rather and the definition of synonymous phrase "putting intimidation with fear.” Id. Moreover, Maryland cases have used term "intimidation” and the Dixon, phrase "putting interchangeably. e.g. in fear” See 302 Md. at (declaring properly applied A.2d at 967 "test to be in cases . .. putting gravamen where intimidation in fear is the action”) Cir.1992)(finding intimidation had been established where de nervous, stated, fanny pack, and “I appeared wore fendant $2,500 I want in fifties and want to make a withdrawal. $5,000, hundreds,” and leaned into where he twice demanded on, window, said, on, give “come come me mon (1st Henson, ey”); United States v. 945 F.2d Cir. read, 1991) demand note (finding intimidation written now!”); United envelope “put into an fifties twenties Graham, (11th Cir.1991)(af States v. F.2d 1442-43 robbery glared defendant firming conviction where teller, if who could not tell he had leaned over counter toward stating, robbery. is a weapon, and handed her note “This small, bills, alarms, touch no give Please me unmarked off United you”); for ten minutes. Thank alert no one at least (4th Cir.1971)(“We Epps, States F.2d think stated, note, which ‘Put all by Epps, handed to the teller hurt,’ get your money bag nobody will sufficient this permit jury to find that the the circumstances under by intimidation within the bank had been committed 2113(a).”) meaning of 18 U.S.C.A. contention, remaining
Finally, we not address Coles’s do verdict of specific failed to render thát the Circuit Court degree and theft counts of the guilt for the second assault information, because conclude that the evidence criminal support his convictions of was sufficient IN THIS AFFIRMED. COSTS COURT JUDGMENT THE APPEALS TO BE AND IN COURT OF SPECIAL *16 PAID BY PETITIONER. ELDRIDGE, BELL,
Dissenting Opinion by C.J. and J. Judge Eldridge essentially for Judge dissent Chief Bell in Dixon v. dissenting opinion in the set forth reasons (1985). 464-465, A.2d