Following a trial held on May 16, 2011, a jury in the Circuit Court for Washington County convicted Bashawn Moneak Montgomery, appellant, of one count of robbery, one count of second-degree assault, two counts of theft of property with a value of at least $500,
On July 11, 2011, the circuit court sentenced appellant to fifteen years’ imprisonment, with all but ten years suspended, for robbery; fifteen years’ imprisonment consecutive, with all but ten years suspended, for the first count of obtaining property by use of a stolen credit card; fifteen years’ imprisonment concurrent, with all but ten years suspended, for the second count of obtaining property by use of a stolen credit card; eighteen months’ imprisonment
I. Did the circuit court err by purportedly failing to swear the jury?
II. Was the evidence sufficient to support the convictions for robbery, second-degree assault, and obtaining property by use of a stolen credit card?
III. Was appellant improperly convicted of and sentenced for two separate counts each of theft, unauthorized use or disclosure of a credit card number, and obtaining property by use of a stolen credit card?
For the reasons set forth below, we answer question I in the negative. We answer question II in the affirmative. We answer question III in the affirmative as to the second conviction for theft (“Count Five”) and the second conviction and sentence for obtaining property by use of a stolen credit card (“Count Seven”). We, therefore, reverse the second conviction for theft (“Count Five”) and the second conviction for obtaining property by use of a stolen credit card (“Count Seven”). We vacate the sentence for the second conviction for obtaining property by use of a stolen credit card (“Count Seven”).
FACTUAL AND PROCEDURAL BACKGROUND
The acts for which appellant was convicted occurred on June 8, 2008, at King’s Jewelry Store in Hagerstown, Maryland.
Trial
At trial, as a witness for the State, Kristi Mellott testified that on June 8, 2008, she was a sales associate at King’s Jewelry Store. Mellott testified that a man, whom she identified as appellant, entered the store with an unidentified man and woman. According to Mellott, appellant gave her a piece of jewelry to clean, and as she was cleaning the piece of jewelry, one of its stones fell out. Mellott offered to send out the piece of jewelry to have it fixed for
According to Mellott, appellant told her to keep her hands above the counter where he could see them, and every time she moved her hands, he became “hostile.” Mellott testified that appellant’s “voice was very strong and loud. He was very demanding of [her] to do exactly what he said. Not to leave the area.” Mellott testified that appellant “told [her] to stand in a certain spot and he kept saying, ‘You’re going to do this,’ and he told [her] not to move[.]” According to Mellott, if she did not follow appellant’s directions, appellant “would start speaking louder towards [her] or demanding [her] to do things.” Mellott testified that she did not feel that she was free to leave and go into the store’s office because she “didn’t know what [appellant] was going to do.” When asked: “When you said you were scared and fearful were you fearful that you maybe hurt[,]” Mellott replied: “Yes.”
According to Mellott, appellant pointed to a ring that was part of a bridal set that was priced around $2,000, and said, “I’ll take that.” Mellott testified that appellant “didn’t have his ID or a credit card.” The unidentified man left the store, and stood outside while holding a cell phone and a piece of paper. The man spoke into the cell phone, re-entered the store, and handed to appellant the paper—which had a credit card number and an expiration date written on it. Mellott testified that appellant, in a very “angry” voice, ordered her to type the paper’s credit card number into the store’s debit machine. Mellott was not supposed to enter a credit card number without the credit card, “but because of feeling threatened [she] did do it. [She] continuously asked [appellant] for his ID telling him [that she] could not do it----He told [her that she] had to do it.” Mellott testified that she would “never” have entered the credit card number if appellant had not acted the way that he did. Mellott testified that she “typed in a wrong number” and that appellant said, “You typed in the wrong number. Give it to me. I’ll do it.” Mellott then typed in the correct credit card number from the paper.
Mellott testified that the credit card number was declined and that appellant then chose another ring—the other ring in the $2,000 bridal set. Mellott testified that she charged the credit card number for $1,000, “[b]ut it was two thousand so [appellant] told [her] to do it again.” Mellott rang up two separate charges for $1,000 on the credit card number from the piece of paper. According to Mellott, appellant left the store with the two rings from the $2,000 bridal set. Mellott testified that her cash register was equipped with an alarm button, which she did not press during the incident. During Mellott’s encounter with appellant, one of her coworkers was in the watch repair room, a closet-sized room directly behind the jewelry counter with a door that was “always open.” Mellott testified that, during the encounter, she telephoned Mary Screen,
As a witness for the State, Screen testified that on June 8, 2008, she was the manager of King’s Jewelry Store and “got a phone call ... that there[ was] something going on in the store.” According to Screen, she entered the store and saw Mellott behind the counter waiting on a customer, whom Screen identified at trial as appellant. Mellott looked “nervous” and “was shaking. She was trembling.” According to Screen, appellant was “being very impatient. [She] went in and actually made the phone call to the credit card company to get it approved and [appellant] said, ‘Don’t waste the energy, hang up the phone.’ ” Screen testified that appellant made her feel “[v]ery uncomfortable” because of “[h]is demeanor. The way he was speaking.” Screen testified that she had been working at the store since 1999, and had dealt with difficult customers before. Screen responded “[v]ery” when asked if she would classify appellant as “[b]eyond being difficult.”
As a witness for the State, Joan Lamoy testified that, around June or July of 2008, one of her credit cards was declined. Lamoy testified that she called her credit card company and was told that her credit card was declined because of large purchases, “at least a couple thousand dollars,” at a jewelry store. Lamoy testified that she never gave anyone permission to use her credit card number. According to the charging document, Lamoy’s credit card number was the one that appellant used on June 6, 2008, at King’s Jewelry Store.
As a witness for the State, Rhonda Maketa testified that, in 2008, she was a “point of sale coordinator” at King’s Jewelry Store’s corporate office. Maketa testified that credit cardholders’ banks would contact her office when the credit cardholders disputed charges. Maketa testified that, in July 2008, Heartland Payment Systems—King’s Jewelry Store’s credit card processor—asked her office to investigate two charges that had been made on June 8, 2008, at King’s Jewelry Store in Hagerstown. According to Maketa, Heartland Payment Systems believed that the credit cardholder had not authorized the two charges. The State offered into evidence, as State’s Exhibit 2, a two-page document that Maketa identified as two separate requests to her office from Heartland Payment Systems for “retrieval,” or documentation, of the two $1,000 charges that had been made on June 8, 2008, at the King’s Jewelry Store in Hagerstown. The circuit court admitted State’s Exhibit 2 without objection. Maketa testified that Heartland Payment Systems reversed the two charges of $1,000, leaving King’s Jewelry Store without the merchandise or the $2,000 in payments.
The Jury’s Impaneling
On May 16, 2011, a jury panel convened for selection of the jury for appellant’s trial. Before voir dire, the jury panel was sworn, as follows:
CLERK: Do you and each of you solemnly promise and declare that you shall true answers make to such questions, as the Court shall demand of you? If so please answer I do.
JURY PANEL [ ]: (IN UNISON) I do.
CLERK: Please be seated.
Motion for Judgment of Acquittal
After the State rested, appellant moved for judgment of acquittal, arguing, in pertinent part:
[A]s Count 1 [robbery] goes, the State is required to establish that [appellant] took the property from the victim’s [Mellott’s] presence and control, that [appellant] took the property by force or threat of force and that [appellant] intended to deprive the victim of the property. Your Hon- or, [appellant] at this time is most concerned with the allegations as far as element number two, that [appellant] took the property by force or by threat of force. And I would argue [Y]our Honor, in addition to the original, to the first stated argument as far as a[n] incorrect victim having been listedf[13 ] that there has been no testimony that there was a force or that there was a threat of force. Indeed the testimony that the State has heard was that, or that the State has presented, was that she might, [appellant] spoke in a tone of voice. The voice was strong. The voice was demanding. He spoke louder. She [Mellott] was uncomfortable. She never said he threatened her. She never said that he threatened her with force. Whether or not she, she very well may have been scared. The fact that she might have been scared is an element that is separate and apart from what the elements of a robbery are. Threat or threat of force. There was no[ ] testimony that there was a threat or that there was a threat of force. It’s that simple. There’s no[ ] testimony as to [a] weapon. There was testimony that she was. She was scared. He used a loud voice. Well that in [and] of itself [Y]our Honor I don’t think is sufficient to establish the elements that are required as far as a robbery to allow Count number 1 [robbery] to go to the jury.
[I]n order to establish, in order for there to be legal and sufficient evidence [of second-degree assault] to go to the jury, the State has to establish that [appellant] committed the attack with the intent of placing her [Mellott] in fear. What’s most important is that [appellant] had the apparent ability at the time to bring about the offensive physical contact and harm. I think that this is separate and apart from whatever her subjective belief was she believed, she was scared, she believed she was going to be hurt, I believe that’s her belief as far as whether or not there was a force or a threat of force. But as far as whether or not [appellant] had the apparent ability, there was no testimony—The only testimony that the Court heard was that [appellant] was in the store. In fact, the Court actually heard testimony that there were two other people in the store, a customer and a sales clerk. There was no informationthat—The Court heard the information that she was behind the sales counter. There was no information that he tried to leap the sales counter. There was no information that he leaned forward. There was no testimony whatsoever that he in any way, shape or form, had the ability to carry forth this assault, number one. Number two, or I guess it’s element number three, is that she [Mellott] reasonably feared immediate contact.
Again, my position would be and based on what the Court’s ruling is that she may have had a subjective] belief of this or whether or not this belief was reasonable. I don’t believe that it was a reasonable belief. There were three, 2 other people in the store. Nobody called the police so I’m not sure how reasonable her belief was. Again, I believe it was a subjective belief.
Your Honor, so far as Count 4 [theft] and Count 5 [same] we would submit on the evidence that has been presented so far. 6 [obtaining property by use of a stolen credit card], 7 [same], 8 [unauthorized use or disclosure of a credit card number], and 9 [same] [we] also submit with the argument that we don’t believe there has been legally sufficient evidence as far as all the elements that are required under the obtaining property by theft or misrepresentation or as well as the unlawful disclosing of a payment device number.
The circuit court denied the motion as to all counts.
DISCUSSION
I.
Swearing of the Jury
(1) Contentions
Appellant contends that the circuit court erred in failing to swear the jury. Appellant argues that “[tjhere is plainly a difference between administering an oath to prospective jurors prior to voir dire, and swearing twelve impaneled jurors.” Appellant asserts that, “[bjecause the jurors who were ultimately selected to hear [appellant’s case were never sworn to well and truly hear the evidence, follow the [circuit court’s instructions and reach a fair verdict, [appellant’s right to an impartial jury was improperly denied[.]”
The State responds that appellant “has failed to rebut the presumption of regularity in the present case [because, although the record does not affirmatively show that the jury was sworn, [appellant has] not overcome the presumption that the jury was, in fact, given the oath.” The State contends that, “other than noting the absence of the oath in the record, [appellant] has not offered any evidence to support his claim that the jury was not sworn.” The State argues that “there were no affirmative statements by counsel or the [circuit] court on the record and no motion for a new trial alerting the [circuit] court to any problem. Indeed, the first complaint regarding the swearing of the jury comes on appeal.” The State asserts that “[t]he mere fact that the record fails to show an affirmative statement indicating that the jury was sworn does not automatically invalidate the verdict.” Alternatively, the State concedes that, “[i]f this Court should find that [appellant] has established that the jury was not sworn in the present case, the proper remedy is to remand the case for retrial[.]”
In a reply brief, appellant contends that, in Harris, infra, the Court of Appeals did not hold that a presumption of regularity applies to the issue of whether the jury was sworn. Appellant argues that “the record must affirmatively show that the jury was sworn, that there is no ‘presumption of regularity’ regarding the swearing
(2) Law
(a) Requirement to Swear the Jury
Maryland Rule 4—312(g)(1) provides, in pertinent part: “The individuals to be impaneled as sworn jurors ... shall be sworn.” Maryland Rule 4-312(g)(l) “represents the codification of a long-standing common law requirement.” Harris v. State,
In Harris, id. at 132,
“Defense Counsel: Your Honor, is the Jury going to be sworn?
“The Court: They’re going to lunch. Why?
“Defense Counsel: I was just asking if they will be sworn.
“The Court: They are excused until 1:30.”
Id. at 118-19,
... Article 21 of the Maryland Declaration of Rights requires, inter alia, that in a criminal prosecution, the accused is entitled to “trial by an impartial jury, without whose unanimous consent he ought not to be found guilty.” Courts have held that a sworn jury is an element of an “impartial” jury and is necessary for a “legally constituted” jury.
Consequently, the failure to administer the oath to the jurors in the case at bar was clearly error.
Id. at 125-27,
In Alston v. State,
We agree with the majority view that draws a distinction between (1) a jury which is never sworn or not sworn prior to deliberations, and (2) a jury that is belatedly sworn, but the oath is administered before the commencement of jury-deliberations. As previously discussed, the reasons for treating the former as structural error do not apply to the latter. Accordingly, in the latter situation, the error is subject to a harmless error analysis. Where the defendant is not prejudiced by the delay, the late administration of the oath will ordinarily cure the error.
Id. at 107,
(b) Presumption of Regularity
In Harris,
There is a presumption of regularity which normally attaches to trial court proceedings, although its applicability may sometimes depend upon the nature of the issue before the reviewing court. See, e.g., United States v. Morgan,346 U.S. 502 , 512,74 S.Ct. 247 , 253,98 L.Ed. 248 , 257 (1954) (“It is presumed the [trial court] proceedings were correct and the burden rests on the [challenger] to show otherwise”); Skok v. State,361 Md. 52 , 78,760 A.2d 647 , 661 (2000) (“[A] presumption of regularity attaches to the criminal case”); Beales v. State,329 Md. 263 , 273,619 A.2d 105 , 110 (1993) [ (“[W]e are conscious of the strong presumption that judges properly perform their duties”)]; Schowgurow v. State, supra, 240 Md. [121,] 126, 213 A.2d [475,] 479 [(1965) (“There is a strong presumption that judges and court clerks, like other public officers, properly perform their duties”) ]. Nonetheless, the presumption of regularity is rebuttable. Beales v. State, supra,329 Md. at 274 ,619 A.2d at 110-111 . (“[W]hen viewed as a whole,” the “record thus demonstrates” that the presumption of regularity was rebutted).
(Some alterations in original). In Harris,
The trial transcript clearly shows that the jury was not sworn before the jurors were dismissed for lunch. When the jury reconvened after lunch, the transcript reveals that the Circuit Court proceeded directly with opening statements, without the oath being administered to the jury. According to the trial transcript, which the official reporter of the Circuit Court certified as being “complete and accurate,” the jury was not sworn at any point during the trial. The docket entry stating that the jury was not sworn reinforces the accuracy of the transcript.
Id. at 122-23,
[T]he argument that the jury was not sworn was made for the first time on appeal, and the [federal] appellate court pointed out that there were no statements by trial counsel, the court reporter, or anyone else present at the trial, that the jury had not been sworn. In this context, the federal appellate court simply stated that “[t]hemere absence of an affirmative statement in the record ... is not enough to establish that the jury was not in fact sworn.” Pinero, 948 F.2d at 700 .
The record in the present matter offers substantially more than the record in Pinero to establish that the jury was not sworn. The docket entries contain the affirmative statement that the jury was not sworn. The trial transcript also shows two inquiries from defense counsel regarding the unsworn jury, in addition to an inquiry from the courtroom clerk.
Harris,
(3) Analysis
(a) Presumption of Regularity as to the Swearing of the Jury
As there is an absence in the record of any information affirming or negating the administration of the oath to the jury, we must ascertain whether the presumption of regularity in trial court proceedings applies to the issue of whether the jury was sworn. After careful consideration of the holding of the Court of Appeals in Harris, and authorities from Maryland and other jurisdictions, we are convinced that the presumption of regularity applies to the issue of whether a jury has been sworn. In Harris,
After concluding that the defendant had established that the jury was not sworn, the Court of Appeals discussed cases from other jurisdictions and declined to express an opinion with respect to the presumption of regularity. Id. at 124 n. 1,
Since the Court of Special Appeals and the arguments in this Court have focused on whether the presumption of regularity was overcome, we have dealt with the issue on this basis. We point out, however, that there is authority holding that the record must affirmatively show that the jury was sworn. See, e.g., Slaughter v. State,100 Ga. 323 , 329,28 S.E. 159 , 161 (1897) (“ ‘[T]he fact of swearing [the jurors] must appear on the record’ ”); State v. Frazier,339 Mo. 966 , 980,98 S.W.2d 707 , 715 (1936) (“[I]t is imperative that the jury be sworn to try the cause and that the record show it”); State v. Mitchell,199 Mo. 105 , 108,97 S.W. 561 , 562 (1906) (“[I]t is everywhere held that the record proper in a criminal appeal must show that the jury was sworn to try the cause”); State v. Moore,57 W.Va. 146 , 148,49 S.E. 1015 , 1016 (1905) (“[A] person cannot be legally convicted unless the record shows that the jury which tried the case were sworn according to law”). Moreover, most of the cases in other states, dealing with the issue of whether jurors were sworn, have not considered the issue in terms of a presumption of regularity. Nevertheless, we need not, and therefore do not, express an opinion with respect to this matter. We have simply assumed, arguendo, that a presumption of regularity is applicable to the issue of whether the jury was sworn.
Ultimately, in Harris,
The mere absence of an affirmative statement in the record, however, is not enough to establish that the jury was not in fact sworn____
In the end, then, we are left with an issue of fact— whether the [trial] court administered the oath to the jury. [An appellate] court, however, is not the appropriate body to resolve factual issues. When the factual issue is raised for the first time on appeal, this is especially true.
Pinero,
Our conclusion is bolstered by the holdings of the Court of Appeals in Nicolas v. State,
[T]here is a presumption of regularity which normally attaches to trial court proceedings, although its applicability may sometimes depend upon the nature of the issue before the reviewing court. Harris v. State,406 Md. 115 , 122,956 A.2d 204 , 208 (2008) (citations omitted). To overcome the presumption of regularity or correctness, the [defendant] has the burden of producing a sufficient factual record for the appellate court to determine whether error was committed.
In a similar opinion, Black,
Pursuant to Black,
We find persuasive State v. Mayfield,
Absence of affirmative statement in the transcript that the jury was sworn furnishes no factual support for [the defendant]^ contention that it was not. [The defendant’s statement that the jury was not sworn stands alone, and is, in our opinion, insufficient to overcome the contrary presumption. But if indeed the jury was not sworn, that was a fact known to [the defendant] during the trial and which he should then and there have called to the attention of the trial [court]. His contention, made for the first time more than eight years afterwards, comes too late. One may not take his chance of a favorable verdict and, after an unfavorable one, raise an objection that should have been made before the verdict was rendered.
Id. (emphasis added) (citations omitted).
Agreeing with the logic of Hams, Pinero, and Mayfield, and applying the holdings of Nicolas and Black, we hold that the presumption of regularity applies to the issue of whether or not a jury has been sworn.
Having determined that the presumption of regularity applies to the issue of whether or not a jury has been sworn, we conclude that appellant failed to rebut the presumption.
Our holding discourages “defense gamesmanship” by ensuring that a defendant will not be able to get “a ‘free look’ at the State’s case-in-chief’ by deliberately not objecting to the trial court’s failure to swear the jury. Boulden,
II.
Sufficiency of the Evidence
(1) Contentions
Appellant contends that the circuit court erred in holding that there was sufficient evidence to support the convictions for robbery, second-degree assault, and obtaining property by use of a stolen credit card. Appellant argues that there was insufficient evidence to sustain the conviction for robbery because the State “failed to prove that a reasonable person under the same circumstances [as Mellott] would have felt apprehension that [appellant] was about to apply force.” Appellant asserts that Mellott’s testimony merely “established that she was dealing with an annoyed, rude, and demanding customer. Nothing she testified to would lead a reasonable person to apprehend force or fear for her life[.]” (Emphasis in original). Appellant maintains that Mellott’s “ ‘fear for her life’ was completely unreasonable[,]” as evinced by Mellott’s failure to press her cash register’s alarm button or alert her coworker, who although she was in the watch repair room directly behind the sales counter, never came to Mellott’s aid or called the police. Appellant contends that Screen “failed to add anything to prove that a robbery had taken place” because she was not concerned enough to call the police between receiving Mellott’s call and arriving at the store.
Appellant contends that there was insufficient evidence to sustain a conviction for second-degree assault because “no reasonable person would have apprehended an imminent battery under the facts present here.” Appellant argues that, “[fjor the same reason that it was not reasonable for [ ] Mellott to fear the use of force by [appellant], it was also not reasonable for [] Mellott to be frightened for purposes of proving second degree assault of the intent to frighten variety.”
Appellant contends that there was insufficient evidence to sustain a conviction for obtaining property by use of a stolen credit card because “[t]here was absolutely no evidence that [appellant] violated [C.L.] § 8-204 [theft of a credit card or receipt of a stolen credit card] or [C.L.] § 8-205 [counterfeiting of a credit card] as required
The State responds that the evidence was sufficient to support convictions as to all counts. It contends that there was sufficient evidence of robbery because Mellott’s and Screen’s testimony established that appellant “obtained the rings by intimidation.” The State argues that there was sufficient evidence of second-degree assault because “[t]he testimony regarding [appellant’s words, actions, and demean- or showed that the victim’s fear was reasonable and the jury could infer an intent to frighten on that basis.” The State asserts that appellant “failed to articulate at trial the grounds that he now asserts on appeal, [and] has failed to preserve his claim of error regarding the sufficiency of [the] evidence for obtaining property by” use of a stolen credit card. Alternatively, the State maintains that there was sufficient evidence of obtaining property by use of a stolen credit card because “the jury could have inferred that [appellant] used a credit card in violation of [C.L. § 8-204 (theft of a credit card or receipt of a stolen credit card) ] by receiving the stolen credit card number from his companion and using it to obtain the rings.”
(2) Standard of Review
In Morris v. State,
In reviewing a challenge to the sufficiency of the evidence to support a conviction, we view the evidence in the light most favorable to the prosecution in order to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. We defer to the fact-finder’s decisions on which evidence to accept and which inferences to draw when the evidence supports differing inferences. In other words, we give deference to all reasonable inferences [that] the fact-finder draws, regardless of whether ... [we] would have chosen a different reasonable inference. In our independent review of the evidence, we do not distinguish between circumstantial and direct evidence because [a] conviction may be sustained on the basis of a single strand of direct evidence or successive links of circumstantial evidence.
(Alterations, emphasis, and omission in original) (citations and internal quotation marks omitted).
(3) Law
(a) Preservation of the Issue of the Sufficiency of the Evidence
Maryland Rule 4-324(a) provides in pertinent part: A defendant may move for judgment of acquittal on one or more counts ... at the close of the evidence offered by the State and, in a jury trial, at the close ofall the evidence. The defendant shall state with particularity all reasons why the motion should be granted.
(Emphasis added). “Under [Maryland] Rule 4-324(a), a defendant is ... required to argue precisely the ways in which the evidence should be found wanting and the particular elements of the crime as to which the evidence is deficient.” Fraidin v. State,
(b) Sufficiency of the Evidence as to Robbery
In Spencer v. State,
Robbery in Maryland is governed by a common law standard____ From [robbery’s] earliest days in Maryland law, fear has been a central component in distinguishing the crime of larceny or theft from robbery.
The hallmark of robbery, which distinguishes it from theft, is the presence of force or threat of force, the latter of which also is referred to as intimidation.
Where ... it is clear that the victim was neither intimidated [n]or put in fear, there must be evidence of actual violence preceding or accompanying the taking. * * * [T]he mere force that is required to take possession, when there is no resistance, is not enough, i.e., the force must be more than is needed simply to move the property from its original to another position; there must be more force than is required simply to effect the taking and asportation of the property. Thus, it is not robbery to obtain property from the person of another by a mere trick, and without force ... nor is it robbery to suddenly snatch property from another when there is no resistance and no more force, therefore, than is necessary to the mere act of snatching.
Id. (some omissions in original) (citations and internal quotation marks omitted).
“The determination of whether there has been an intimidation should be guided by an objective test focusing on the accused’s actions.... ‘[B]y intimidation’ means ... in such a way that would put an ordinary, reasonable person in fear of bodily harm.” Id. at 432,
The only thing said by the defendant in this case was the statement by [the defendant] not to say anything. This brief statement, by itself, would not cause an ordinary, reasonable person to have felt apprehension that [the defendant] was about to apply force. A reasonable person in the cashier’s shoes on the day that [the defendant] entered the Jiffy Lube service center, when faced with the statement not to say anything, would not automatically hand over the cash register drawer. A reasonable person would have likely queried what [the defendant] wanted or what he meant when he said, “Don’t say nothing.” The statement to remain silent was simply not enough to create apprehension that force was about to be applied. To intimidate or threaten an individual to the extent necessary for the legal standard of robbery, something more is needed.
Id. at 436,
Similarly, in West v. State,
[T]he mere snatching or sudden taking away of the property from the person of another does not constitute sufficient force, violence, or putting in fear to support a robbery conviction.
[T]he victim here was never placed in fear; she did not resist; she was not injured. The only force applied was that necessary to take the pocketbook from her hand____A fair reading of her testimony supports only one conclusion— that she was not aware she had been dispossessed of the purse until she saw the purse snatcher running from her.
Id. at 206-07,
In contrast, in Dixon v. State,
[T]he defendant with a “cold, hard look” in his eyes approached the cashier with a previously written demand for all her money, in the night, at a time when she was alone in the filling station and carrying a newspaper tightly under his arm, folded in such a way that the cashier “thought it was a weapon inside the newspaper, that he kept still, pointed right towards [her].”
(Second alteration in original).
Similarly, in Coles v. State,
During the first robbery, [the defendant] entered the bank wearing a baseball hat, a scarf around his neck, and a jacket or heavy shirt in which he could have concealed a weapon. He walked up to [the victim, a bank teller,] and gave her a bag and a note telling her to “put some money in the bag,” and ordering her “not to hit an alarm ... not to let anybody know,” and to return the note. That note constituted an unequivocal demand for money and an intimidating command not to let anyone know that [the defendant] was stealing the money.
Although the defendant did not display a weapon, the Court noted that “possession of an undisclosed weapon may be inferred from the surrounding facts and circumstances.” Id. at 128,
In Hill v. State,
[S]econd degree assault ... encompasses the common law offenses of assault, battery, and assault and battery. Maryland recognizes two forms of assault: (1) an attempt to commit a battery or (2) an intentional placing of another in apprehension of receiving an immediate battery. Assault of the intentional threatening variety is a fully consummated crime once the victim is placed in reasonable apprehension of an imminent battery. All that is required in terms of perception is an apparent present ability from the viewpoint of the threatened victim.
Id. (citations and internal quotation marks omitted).
In Hill, this Court held that the evidence was sufficient to support a conviction for second-degree assault of the intentional threatening variety where:
[The victim, a mathematics instructor,] testified that [the defendant] demanded that [the victim] give him an A for the class or [the defendant] would kill him, and then raised his jacket to display a gun in a holster. [The defendant] then detailed the manner in which he would dispose of [the victim]’s body. [The victim] stated that he experienced immediate fear for his life and that he had no idea what was going on or what he should do. He explained his efforts to disavow responsibility for [the defendant’s grade and to keep [the defendant] from becoming violent, and expressed his concern, upon [the victim’s officemate]’s return, that the situation would get out of hand and that he and/or [the victim’s officemate] might be shot. He conveyed how, after [the defendant] left his office, he was afraid to use the telephone or to walk into the hallway, for fear that [the defendant] might hear him call the police or question where he was going. Based on this evidence, a rational trier of fact could conclude that, when [the defendant] displayed the gun and threatened [the victim], [the victim] was placed in reasonable apprehension of an imminent battery, even though the words that [the defendant] used constituted a threat of harm to occur conditionally and in the future.
Id. at 356,
In contrast, in Harrod v. State,
[The defendant] swung a hammer which struck the wall “not too far from” [the victim]. Significantly, there is no evidence that [the victim] was harmed.
There is ... insufficient evidence that appellant, by an unlawful intentional act, placed [the victim] in reasonable apprehension of receiving an immediate battery. By definition the victim must be aware of the impending contact. This is consistent with the tort theory of assault.
There is no evidence in the record before us that [the victim] was in fact aware of the occurrences in his home on the morning in question.
(Citations omitted).
(d) Stolen Credit Card Statutes
C.L. § 8-206(a)(l) prohibits obtaining property by use of a stolen credit card and provides, in pertinent part:
A person may not for the purpose of obtaining money, goods, services, or anything of value, and with the intent to defraud another, use: ... a credit card obtained or retained in violation of § 8-204 or § 8-205[ 20 ] of this subtitle[.]
(Emphasis added). C.L. § 8-204 prohibits credit card theft and provides, in pertinent part:
(a) Taking credit card from another; receiving credit card taken from another with intent to sell.—
(1) A person may not:
(i) take a credit card from another, or from the possession, custody, or control of another without the consent of the cardholder; or
(ii) with knowledge that a credit card has been taken under the circumstances described in item (i) of this paragraph, receive the credit card with the intent to use it or sell or transfer it to another who is not the issuer or the cardholder.
(2) A person who violates this subsection is guilty of credit card theft.
(d) Receiving credit card with knowledge of credit card theft or other violations.—A person other than the issuer may not receive a credit card that the person knows was taken or retained under circumstances that constitute:
(1) credit card theft[.]
(4) Analysis
(a) Robbery
Returning to the instant case, viewing the evidence in the light most favorable to the State, we conclude that there was sufficient evidence to support the conviction for robbery because appellant acted “in such a way that would put an ordinary, reasonable person in fear of bodily harm.” Spencer,
Appellant’s actions were far beyond those of what he describes on brief as “an annoyed, rude and demanding customer.” According to Screen—who had been working at the store since 1999 and had dealt with difficult customers before— appellant went beyond being a difficult customer. Although a rude customer might insist
Mellott could reasonably have believed that appellant possessed a weapon, which he would use if Mellott did not comply with appellant’s demands. See Coles,
We find unpersuasive appellant’s argument that the facts show that Mellott’s and Screen’s apprehension was unreasonable because Mellott did not press the cash register’s alarm button or alert her coworker in the room behind her, and Screen did not call the police between receiving Mellott’s call and arriving at the store. The standard for determining whether intimidation is sufficient to constitute robbery turns on how “an ordinary, reasonable person” would react to the defendant’s actions, not how the actual victim reacted to the defendant’s actions. Spencer,
(b) Second-Degree Assault
Viewing the evidence in the light most favorable to the State, we conclude that there was sufficient evidence to support the conviction for second-degree assault because appellant had “an apparent present ability [to cause an immediate battery] from the viewpoint of the threatened victim.” Hill,
(c) Obtaining Property by Use of a Stolen Credit Card
Preliminarily, we conclude that the issue of sufficiency of the evidence to support the conviction for obtaining property by use of a stolen credit card is not preserved for appellate review. During the motion for judgment of acquittal, Maryland Rule 4-324(a) required appellant to “state with particularity all reasons why” the evidence was insufficient as to obtaining property by use of a stolen credit card. Appellant’s counsel, however, simply stated: Counts “6, 7, 8, and 9 [we] also submit with the argument that we don’t believe there has been legally sufficient evidence as far as all the elements that are required under the obtaining property by theft or misrepresentation[.]” In the motion for judgment of acquittal, appellant’s counsel: “merely assert[ed] that the evidence [was] insufficient to support a conviction, without specifying the deficiency, [did] not comply with [Maryland] Rule [4-324(a),] and thus [did] not preserve the issue of sufficiency for appellate review.” Brooks,
Alternatively, viewing the evidence in the light most favorable to the State, we are satisfied that there was sufficient evidence to support the conviction for obtaining property by use of a stolen credit card. Although Mellott “continuously asked [appellant] for his ID” and told appellant that she could not charge a credit card number without seeing identification and an actual credit card, appellant never produced identification or an actual or purported credit card. Instead, appellant’s male companion left the jewelry store, spoke on a cell phone, and returned with a piece of paper with a credit card number and an expiration date written on it, which appellant then forced Mellott to use for the transaction. In either that month or the next—in June or July 2008—one of Lamoy’s credit cards was declined, and her credit card company told her that the credit card had been used to make large purchases at a jewelry store. Lamoy testified that she had never given anyone permission to use her credit card number. In July 2008, Maketa—King’s Jewelry Store’s point of sale coordinator—was contacted by Heartland Payment Systems, King’s Jewelry Store’s credit card processor. Heartland Payment Systems informed Maketa that it believed that the credit cardholder had not authorized the two charges at King’s Jewelry Store, and asked Maketa’s office to investigate.
All of the evidence makes clear the following sequence of events, which the jury
Although we find no case in which a Maryland appellate court has ruled on the sufficiency of the evidence as to obtaining property by use of a stolen credit card, we hold that evidence is sufficient to support a conviction for obtaining property by use of a stolen credit card where the evidence shows that a defendant obtained goods or services by using, without the credit cardholder’s permission, a credit card number that did not belong to the defendant.
III.
A. Multiplicity
(1) Contentions
Appellant contends that the circuit court erred in entering two judgments of conviction each for theft, unauthorized use or disclosure of a credit card number, and obtaining property by use of a stolen credit card because “there was but a single transaction.” Appellant argues that, pursuant to the “ ‘single larceny’ doctrine ... there was but one single scheme or course of conduct thereby precluding two convictions and sentences for” theft and obtaining property by use of a stolen credit card. Appellant asserts that “[t]he rings that were stolen were part of a bridal set and were not sold separately. Thus, there was a single taking.” Appellant maintains that the two counts of unauthorized use or disclosure of a credit card number “also arose out of a single use of a credit card number.” Appellant contends that, “[j]ust because the salesperson had to manually enter the same credit card number two times in order for [appellant] to obtain the bridal set, does not amount to two ‘disclosures’ under” C.L. § 8-214.
The State responds that appellant’s “sentences are not illegal and [appellant] failed to raise any contention regarding [multiplicity
(2) Law
(a) Preservation of the Issue of Multiplicity
“Multiplicity is the charging of the same offense in more than one count.” Brown v. State,
[The defendant] also appears to argue that the criminal information was defective for improperly charging her with multiple violations of one criminal offense, to -wit, possessing counterfeit currency, issuing counterfeit currency, and theft. The State responds that, because [the defendant] did not file a mandatory pre-trial motion in accordance with Maryland Rule 4-252(a)(2)[28 ] and (b), she waived her challenge to any alleged improper charging document. We agree with the State and hold that [the defendant’s multiplicity argument regarding the charging document has not been preserved for appellate review.
When the State charges multiple counts for a single offense, the charging document is multiplicitous.... Because [the defendant] in the instant case did not file a mandatory motion in accordance with [Maryland] Rule 4-252, her multiplicity argument in reference to the charging document is deemed waived. [The defendant], however, may challenge her convictions on multiplicity grounds.
Id. (emphasis in original) (citations omitted).
In Webb v. State,
On numerous occasions this Court has pointed out that “illegal sentences may be challenged at any time, even on appeal[.'J” ... See, e.g., Jordan v. State,323 Md. 151 , 161,591 A.2d 875 , 880 (1991) (even though the defendant did not raise the issue at trial, “Jordan has not waived his right to object to the unlawful sentence”); Osborne v. State,304 Md. 323 , 326 n. 1,499 A.2d 170 , 171 n. 1 (1985) (“where the trial court has allegedly imposed an illegal sentence, the issue may be reviewed on direct appeal even if no objection was made in the trial court”)[.]
Id. at 598,
(b) Challenges to Convictions on the Grounds of Multiplicity
In Brown,
The Double Jeopardy Clause protects a criminal defendant against ... multiple punishment for the same offense. Multiple punishment challenges generally arise in one of two broad contexts:
“(a) A statute or a portion thereof proscribes designated conduct, and the question is whether the defendant’s conduct constitutes more than one violation of this proscription. Thus, murdering two people simultaneously might well warrant two punishments but stealing two one-dollar bills might not. (b) Two statutes or two portions of a single statute proscribe certain conduct, and the question is whether the defendant can be punished twice because his conduct violates both proscriptions. Thus, selling liquor on a Sunday might warrant two punishments for violating a prohibition law and a blue law, but feloniously entering a bank and robbing a bank, though violative of two statutes, might warrant but a single punishment.”
Whether a particular course of conduct constitutes one or more violations of a single statutory offense affects an accused in three distinct, albeit related, ways: multiplicity
in the indictment or information, multiple convictions for the same offense, and multiple sentences for the same offense. All three turn on the unit of prosecution of the offense and this is ordinarily determined by reference to legislative intent.
(Emphasis added) (citations omitted).
(c) The “Single Larceny” Doctrine
In Kelley v. State,
[W]hen considering whether the theft of multiple items of property, at the same time or at different times, from the sameowner or from ■ different owners, constitutes one offense or separate offenses (and with that, whether the value of the different items can be aggregated or not aggregated), the ultimate criterion is whether the separate takings were part of a single scheme or continuing course of conduct. If so, one offense must be charged and the values may be aggregated to determine whether the offense is a felony. To the extent that is not the case, the takings constitute separate offenses and aggregation of values is permissible only with respect to the takings included in each of the respective separate offenses.
... [T]he determination of whether multiple takings were part of a single scheme or course of conduct, for any purpose other than resolving the sufficiency of the charging document, is a factual matter that must be based on evidence. We observed there that the single larceny doctrine “rests on the notion that the separate takings are all part of a single larcenous scheme and a continuous larcenous act, and, when the evidence suffices to establish that fact, directly or by inference, most courts have had no problem applying the doctrine.” The question, then, is whether the State has sufficiently established beyond a reasonable doubt that there was, or, in this case, was not, a single larcenous scheme or course of conduct.
(Emphasis in original) (citations and footnotes omitted).
(3) Analysis
(a) This Court’s Authority to Review an Allegedly Illegal Conviction
Returning to the instant case, we initially note that an appellate court has the authority to review an allegedly illegal conviction regardless of whether or not an objection is made at trial. See Brown,
(b)(i) Convictions for Theft and Obtaining Property by Use of a Stolen Credit Card
We conclude that appellant and the State are correct that appellant should have received one conviction for theft, and
(b)(ii) Convictions for Unauthorized Use or Disclosure of a Credit Card Number
As to the convictions for unauthorized use or disclosure of a credit card number, we are satisfied that the circuit court did not err in entering two judgments of conviction. In the instant situation, “two portions of a single statute proscribe certain conduct, and the question is whether the defen-
dant can be punished twice because his conduct violates both proscriptions.” Brown,
that has no bearing on our conclusion that appellant was properly convicted of two violations of C.L. § 8-214(a). For all the reasons discussed above, we affirm the convictions for unauthorized use or disclosure of a credit card number.
B. Merger
(1) Contentions
Appellant contends that the circuit court erred in not merging, for sentencing purposes, the convictions for unauthorized use or disclosure of a credit card number with the conviction for obtaining property by use of a stolen credit card because unauthorized use or disclosure of a credit card number “includes the elements of’ obtaining property by use of a stolen credit card.
The State responds that appellant “failed to raise any contention regarding the merger of [convictions for sentencing purposes] below[; thus], this claim is not properly before this Court.” Alternatively, the State contends that the circuit court properly refrained from merging, for sentencing purposes, the conviction for unauthorized use or disclosure of a credit card number with the conviction for obtaining property by use of a stolen credit card. The State argues that “the conduct of disclosing a credit card number and using a credit card number are not the same, as is evident from the statute which may be violated by either act of using the credit card number or disclosing the credit card number.” We agree with the State on this point. See supra footnote 33.
(a) “Required Evidence Test” for Merger
In Purnell v. State,
Generally, this Court has relied upon the Blockburger v. United States,284 U.S. 299 ,52 S.Ct. 180 ,76 L.Ed. 306 (1932)] “required evidence test” in resolving double jeopardy challenges involving two offenses stemming from the same act or acts.
We outlined the application of the required evidence test in Williams [v. State,323 Md. 312 ,593 A.2d 671 (1991) ] as follow[s]:
The required evidence test focuses upon the elements of each offense; if all of the elements of one offense are included in the other offense, so that only the latter offense contains a distinct element or distinct elements, the former merges into the latter. The test was explained in Thomas v. State,277 Md. 257 [,] 267 [353 A.2d 240 (1976)] as follows:
The required evidence is that which is minimally necessary to secure a conviction for each ... offense. If each offense requires proof of a fact which the other does not, or in other words, if each offense contains an element which the other does not, the offenses are not the same for double jeopardy and merger purposes, even though arising from the same conduct or episode. But, where only one offense requires proof of an additional fact, so that all elements of one offense are present in the other, the offenses are deemed to be the same for double jeopardy and merger purposes.
This does not end the inquiry, however, because the focus is upon the intent of the Legislature. [T]he Blockburger rule does not provide the final answer in cases involving multiple punishment because, when specifically authorized by the legislature, cumulative sentences for the same offense may under some circumstances be imposed after a single trial[ ]. In such instances, the appropriate measure of the allowable unit of prosecution would be what the legislature intended. Indeed, our primary task in a unit of prosecution analysis is to find and give effect to the legislative intent underlying the statute.
Purnell,
(b) Rule of Lenity and Principle of Fundamental Fairness
In Moore v. State,
Even though two offenses do not merge under the required evidence test, there are nevertheless times when the offenses will not be punished separately. Two crimes created by legislative enactment may not be punished separately if the legislature intended the offenses to be punished by one sentence. It is when we are uncertain whether the legislature intended one or more than one sentence that we make use of an aid to statutory interpretation known as the“rule of lenity.” Under that rule, if we are unsure of the legislative intent in punishing offenses as a single merged crime or as distinct offenses, we, in effect, give the defendant the benefit of the doubt and hold that the crimes do merge.
Id. (citation and internal quotation marks omitted). As to the principle of fundamental fairness, this Court stated:
Considerations of fairness and reasonableness reinforce our conclusion [to merge].... We have ... looked to whether the type of act has historically resulted in multiple punishment. The fairness of multiple punishments in a particular situation is obviously important.
Implicit in this reasoning is the idea that when a single act is sufficient to result in convictions for both offenses, but the victim suffered only a single harm as a result of that act, then as a matter of fundamental fairness there should be only one punishment because in a real-world sense there was only one crime.
Id. at 686-87,
In Jackson v. State,
The rule of lenity dictate[d] merging the sentence for felony theft. Both convictions were predicated on the taking of the same property from the same victim in a single incident. We cannot say that the legislature intended cumulative punishment in that circumstance; accordingly, the ambiguity must be resolved in the [defendant’s favor.
(Emphasis added).
In Moore v. State,
There is nothing in the legislative file that indicates that the General Assembly intended for dual convictions. There is no suggestion in either of the statutory provisions or legislative history or prior court opinions, that one of the purposes in establishing the offense of credit card theft was to compound the punishment for theft. Rather, it would appear reasonable that the credit card theft offenses were enacted to ensure that a credit card thief, who has possession of the physical credit card but has not used it for some reason or another, can still be prosecuted for theft, even though the physical card itself has very little intrinsic value. The rule of lenity instructs that a court not interpret a ... criminal statute so as to increase the penalty that it places on an individual when such an interpretation can be based on no more than a guess as to what [the legislature] intended. Moreover, the General Assembly typically makes clear when it intends to allow dual convictions or consecutive sentences, and no such direction is present here.
Id. at 321,
(3) Analysis
(a) This Court’s Authority to Review an Allegedly Illegal Sentence
Returning to the instant case, we initially note that an appellate court “has
(b)(i) Merger of the Convictions Pursuant to the “Required Evidence Test”
Pursuant to the “required evidence test,” the convictions for unauthorized use or disclosure of a credit card number (“Count Eight” and “Count Nine”) would not merge, for sentencing purposes, with the conviction
(b)(ii) Merger of the Convictions Pursuant to the Rule of Lenity and the Principle of Fundamental Fairness
Upon careful consideration of the rule of lenity, the principle of fundamental fairness, and the instant case’s unique circumstances, we conclude that the circuit court properly refrained from merging, for sentencing purposes, unauthorized use or disclosure of a credit card number (“Counter Eight” and “Count Nine”) with obtaining property by use of a stolen credit card (“Count Six”). Appellant’s convictions were not predicated on a single harm or taking of property from the same victim. Rather, appellant caused two distinct harms to two distinct victims—Lamoy and King’s Jewelry Store. By obtaining property
Upon review of the statutory scheme, it is clear that the General Assembly intended to punish the two crimes differently. C.L. § 8-206(a) is contained within “Part I. General Provisions” of subtitle 2, Credit Card Crimes, and C.L. § 8-214(a) is contained within “Part II. Credit Card Number Protection,” of subtitle 2, Credit Card Crimes. Depending on the value of property obtained in violation of C.L. § 8-206(a), a defendant may be convicted and sentenced of either a felony or a misdemeanor. See C.L. § 8-206(c). In contrast, a defendant who violates C.L. § 8-214(a), contained within a part titled “Credit Card Number Protection,” is guilty of a felony and subject to civil penalties and injunctions. See C.L. § 8-216 (criminal penalty); C.L. § 8-217 (civil penalty; injunction). The General Assembly plainly intended the crimes committed under the Credit Card Number Protection Part to be punished separately than the offense set forth in C.L. § 8-206(a).
For all the reasons discussed above, we conclude that the circuit court properly refrained from merging, for sentencing purposes, unauthorized use or disclosure of a credit card number (“Counter Eight” and “Count Nine”) with obtaining property by use of a stolen credit card (“Count Six”).
SECOND CONVICTION FOR THEFT (“COUNT FIVE”) AND SECOND CONVICTION FOR OBTAINING PROPERTY BY USE OF A STOLEN CREDIT CARD (“COUNT SEVEN”) REVERSED. SENTENCE FOR THE SECOND CONVICTION FOR OBTAINING PROPERTY BY USE OF A STOLEN CREDIT CARD (“COUNT SEVEN”) VACATED. ALL OTHER SENTENCES AND JUDGMENTS OF THE CIRCUIT COURT FOR WASHINGTON COUNTY AFFIRMED. COSTS TO BE PAID 3/4 BY APPELLANT AND 1/4 BY WASHINGTON COUNTY.
Notes
. Although the circuit court-as well as the parties, both at trial and on brief-used the term "over,” the statute uses the term "at least[.]” See Md.Code Ann., Crim. Law Art. § 7-104(g)(l)(i). We will henceforth omit the phrase "with a value of at least $500” from the convictions for theft and refer to the convictions as "theft.”
. We will henceforth omit the phrase "with a value over $500” from the convictions for obtaining property by use of a stolen credit card and refer to the convictions as "obtaining property by use of a stolen credit card.”
. The jury acquitted appellant of false imprisonment.
. Since the trial, C.L. § 7-104 has been amended to increase "$500” to “$1,000.”
. The circuit court—as well as the parties, both at trial and on brief— referred to the convictions pursuant to C.L. § 8-206(a) as convictions for “obtaining property by misrepresentation.’' But obtaining property by misrepresentation is prohibited by C.L. § 8-206(b), not C.L. § 8-206(a), which was the statute that the State charged appellant with violating. Thus, we refer to the convictions as “obtaining property by use of a stolen credit card.”
. For sentencing purposes, second-degree assault and theft merged with robbery.
. By agreement of the parties on the day on which oral argument was scheduled, the instant appeal was submitted on brief pursuant to Maryland Rule 8-523(a)(l).
. Appellant phrased the issues as follows:
I. Should [appellant]’s convictions be reversed where the jury was never sworn and [appellant] did not personally waive this infringement of his Constitutional right to an impartial jury?
II. Was the evidence insufficient to convict [appellant]?
III. Was [appellant] improperly convicted of and sentenced for two separate counts each of theft over $500, unauthorized disclosure of credit card information and obtaining property by misrepresentation?
. Appellant received two convictions, but no sentences, for theft, which merged with robbery for sentencing purposes. As a result, the second conviction for theft ("Count Five”) has no sentence for us to vacate.
. After the instant reversal, appellant will have incurred: one conviction and one sentence for robbery ("Count One”), one conviction for second-degree assault ("Count Three”), one conviction for theft ("Count Four"), one conviction and one sentence for obtaining property by use of a stolen credit card ("Count Six”), and two convictions and two sentences for unauthorized use or disclosure of a credit card number ("Count Eight” and "Count Nine”).
. After Mellott said "Yes[,]” appellant objected on the ground of asked and answered, and the circuit court sustained the objection. Appellant, however, did not move to strike the response from the record.
. The original transcript reads simply: "(JURY PANEL SWORN).” On March 20, 2012, this Court granted appellant’s Motion to Correct the Record by replacing the original transcript’s words with the actual exchange that we note here.
. As part of the motion for a judgment of acquittal as to the count of robbery, appellant argued at the conclusion of the State’s case that King’s Jewelry Store, not Mellott, was the robbery's victim. Appellant does not raise this issue on appeal.
. Although Maryland Rule 4-312 has been amended since Harris, its pertinent language remains unchanged.
. The advanced age of these four cases discounts their persuasive value not only on general principle, but also because, in the seventy-six years that have passed since the latest of the four cases, trial practice has become so much more standardized that the presumption of regularity is much stronger today than it would have been when the four cases were decided.
. Appellant correctly notes that the courtroom clerk administered an oath to the jury pool before voir dire, and that this oath cannot substitute for the oath that is administered to selected jurors. Whether or not the voir dire oath was administered, however, is of zero guidance in determining from the record whether the jury was sworn after being selected.
. Although appellant failed to raise the issue of the purportedly unsworn jury at trial as required by Maryland Rule 8-131(a) ("Ordinarily, the appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court[.]”), the State does not argue that the issue is not preserved for appellate review. Nonetheless, we observe that the issue of an unsworn jury, although structural error, would be subject to plain error review where the issue is unpreserved. See Savoy v. State,
Although in Harris,
The instant case's circumstances would fail plain error review’s fourth prong, as set forth in State v. Rich,
. Nothing in this opinion encroaches upon the holding of the Court of Appeals in Harris,
As the Court of Appeals observed in Harris,
. Within his argument regarding sufficiency of the evidence, appellant contends that, in instructing the jury as to obtaining property by use of a stolen credit card, the circuit court "did not even inform the jury that” the violation of either C.L. § 8-204 (theft of a credit card or receipt of a stolen credit card) or C.L. § 8-205 (counterfeiting of a credit card) was an element of violating C.L. § 8-206(a) (obtaining property by use of a stolen credit card). The issue of the jury instructions is distinct from the issue of the sufficiency of the evidence. None of appellant’s questions for our consideration concern the jury instructions. Thus, we do not address any issue as to the jury instructions.
. C.L. § 8-205 prohibits credit card counterfeiting. According to the instant case’s Information, the State charged appellant with two counts violating C.L. § 8-206(a) by "us[ing] a credit card issued to Joan Lamoy ... knowing the said card to have been stolen[.]” Thus, the statute that underlay the conviction pursuant to C.L. § 8-206(a) was C.L. § 8-204 (credit card theft), not C.L. § 8-205 (credit card counterfeiting). We address neither C.L. § 8-205 nor C.L. § 8-206(a)(2) (obtaining property by use of a counterfeited credit card).
. In contrast, evidence is insufficient to support a finding of intimidation where a defendant, although making a demand of a victim, does not use a threatening tone or threatening body language, see Spencer,
. "[W]e give deference to all reasonable inferences [that] the fact-finder draws[.]” Morris,
. C.L. § 8-201(c)(2)(iii)l provides in pertinent part: " ‘Credit card’ includes ... [an] account number[.]” (Emphasis added). Thus, that appellant used only a credit card number, without an actual or purported credit card, is not relevant.
. Within his argument regarding multiplicity and merger—which we discuss separately in Part III.A and Part III.B, respectively—appellant contends that the circuit court, in instructing the jury as to unauthorized use or disclosure of a credit card number, referred only to "disclosure” and not "use.” The issue of the jury instructions is distinct from the issues of multiplicity and merger. As stated earlier, none of appellant’s questions for our consideration on appeal concern the jury instructions.
. We substitute "multiplicity” for the State's briefs language, "merger of sentences!,]” because, although the parties discussed the two issues together, we distinguish appellant's argument regarding multiplicity— that appellant should have received fewer convictions—from appellant's argument regarding merger—that appellant should have received fewer sentences. We discuss the argument regarding multiplicity here in Part III.A, and we discuss the argument regarding merger infra in Part III.B.
. Although the State’s concession does not bind us, see Sanders,
. Multiplicity is not to be confused with duplicity, which is "the joinder of two or more distinct and separate offenses in the same count.” Cooksey v. State,
. Maryland Rule 4-252(a)(2) governs mandatory motions in criminal cases and provides, in pertinent part:
In the circuit court, the following matters shall be raised by motion in conformity with this Rule and if not so raised are waived unless the court, for good cause shown, orders otherwise: ... [a] defect in the charging document other than its failure to show jurisdiction in the court or its failure to charge an offense[.]
. Although the defendant did not object, the trial court still addressed the issue of the single larceny doctrine because the Division of Parole and Probation, after a pre-sentence investigation at the trial court’s request, “did not treat the three theft counts separately!.]” Id. at 589,
. Because appellant challenges the convictions, not the charging documents, we find unpersuasive the State's reliance of Ford v. State,
. Although the State argues that appellant’s convictions "are not illegal[,]” the State does not explain how convictions that are contrary to the single larceny doctrine are not illegal. The State seems to imply that appellant has not challenged the convictions on "substantive grounds[.]” We decline the State’s invitation to treat the instant challenge as not being on substantive grounds.
. Appellant received two convictions, but no sentences, for theft, which merged with robbery for sentencing purposes. As a result, the second conviction for theft (“Count Five") has no sentence for us to vacate.
. Presumably, the State charged appellant with two counts of violating C.L. § 8-214(a) because appellant took two rings and forced Mellott to charge Lamoy's credit card number twice. In contrast, we view the two credit card charges as a single "use” of Lamoy's credit card number—but we view separately appellant’s act of "disclosing” Lamoy’s credit card number to Mellott by showing her the piece of paper with Lamoy’s credit card number written on it.
Two hypothetical situations prove that appellant could have violated one or the other of C.L. § 8-214(a)’s "use” or "disclosure” portions. (1) Appellant could have disclosed Lamoy's credit card number, without using it, by showing the piece of paper to Mellott—or anyone else, for that matter—and then leaving, without charging anything to Lamoy's credit card number. (2) Appellant could have used Lamoy’s credit card number, without disclosing it, by forcing Mellott to set up the cash register so that it was ready for the credit card number’s input, forcing Mellott to step away and look away, and then typing Lamoy’s credit card number himself—ensuring that Mellott would not see Lamoy’s credit card number.
Arguably, by using Lamoy’s credit card number, appellant "disclosed” it to Heartland Payment Systems, King's Jewelry Store's credit card processor. If this were the case—and thus it would be impossible to "use” a credit card number without "disclosing" it—then the Maryland General Assembly would have had no reason for writing C.L. § 8-214(a) to prohibit both "use" and "disclosure.” Instead, C.L. § 8-214(a) could have merely prohibited "disclosure” because, by definition, using a credit card number would disclose it. We decline to interpret the word "use” in C.L. § 8-214(a) as being superfluous to the word "disclosure.” See Parker v. State,
. Although we conclude that the circuit court properly entered two judgments of conviction for unauthorized use or disclosure of a credit card number, we find unpersuasive the State’s reliance on Carter v. State,
. On brief, appellant refers to the conviction pursuant to C.L. § 8-214(a) as "the disclosure conviction” and the conviction pursuant to C.L. § 8-206(a) as "the use conviction.” This distinction, however, applies C.L. § 8-214(a)'s language—“[ujnauthorized use or disclosure”—to both convictions. For clarity, we continue to refer to the conviction pursuant to C.L. § 8-214(a) as “unauthorized use or disclosure of a credit card number” and the conviction pursuant to C.L. § 8-206(a) as "obtaining property by use of a stolen credit card.”
. We use the singular word "conviction” because we reverse the second conviction for obtaining property by use of a stolen credit card ("Count Seven”). See supra Part III A.
. It is true that, pursuant to our conclusion supra in Part III A regarding multiplicity, appellant violated C.L. § 8-214(a) once by disclosing Lamoy’s credit card number, and once more by using Lamoy's credit card number. Arguably, because one of the convictions pursuant to C.L. § 8-214(a) was for use, one of those convictions must, for sentencing purposes, merge with the one remaining conviction for obtaining property by use of a stolen credit card pursuant to C.L. § 8-206(a)(1).
Such an argument fails, however, because only the doctrine of multiplicity turns on a particular case’s facts. In contrast, the doctrine of merger turns only on the elements contained in the two statutes in question—regardless of the particular case's facts. As a result, our analysis concerns only the language of C.L. § 8-214(a) (unauthorized use or disclosure of a credit card number) and C.L. § 8-206(a)(l) (obtaining property by use of a stolen credit card), rather than what appellant did or did not do. Examining these two statutes, we conclude that the element of disclosure and the element of ''the purpose of obtaining money, goods, services, or anything of value” distinguish them, and prevent merger pursuant to the “required evidence” test.