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Opinions – 7/30/12 – Maryland Court of Special Appeals

Criminal Law

Single larceny doctrine

BOTTOM LINE: The evidence was sufficient to support defendant’s convictions for robbery, second-degree assault, and obtaining property by use of a stolen credit card; however, pursuant to the “single larceny” doctrine, defendant should have incurred only one conviction for theft and one conviction for obtaining property by use of a stolen credit card.

CASE: Montgomery v. State, No. 1063, September Term, 2011 (filed July 2, 2012) (Judges Krauser, Graeff & WATTS). RecordFax No. 12-0702-00, 58 pages.

FACTS: 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. Bashawn Moneak Montgomery entered the store with an unidentified man and woman. According to Mellott, Montgomery 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 free. Montgomery declined the offer and, instead, began pointing at the cases saying he wanted things.

According to Mellott, Montgomery 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 she did not feel that she was free to leave and that she was fearful that she may be hurt.

According to Mellott, Montgomery 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 Montgomery 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 Montgomery the paper which had a credit card number and an expiration date written on it. Mellott testified that Montgomery ordered her to type the paper’s credit card number into the store’s debit machine. Mellott did it because she felt threatened by Montgomery.

Mellott testified that the credit card number was declined and that Montgomery then chose another ring. Mellott rang up two separate charges for $1,000 on the credit card number from the piece of paper. According to Mellott, Montgomery left the store with the two rings from the $2,000 bridal set.

As a witness for the State, Joan Lamoy testified that, around June or July of 2008, one of her credit cards was declined because of large purchases 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 Montgomery used.

The jury convicted Montgomery of one count of robbery, one count of second-degree assault, two counts of theft of property with a value of at least $500, two counts of obtaining property with a value of over $500 by use of a stolen credit card, and two counts of unauthorized use or disclosure of a credit card number.

The circuit court sentenced Montgomery 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 concurrent for each of the two counts of unauthorized use or disclosure of a credit card number; and three years’ supervised probation, with $2,120 in restitution to King’s Jewelry Store as a condition of probation.

The Court of Special Appeals reversed in part and affirmed in part.

LAW: Robbery in Maryland stems from the common law, and is distinguished from mere theft by the element of force, whether actual or threatened. “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.” Spencer v. State, 422 Md. 422, 428-30 (2011).

“‘[B]y intimidation’ means…in such a way that would put an ordinary, reasonable person in fear of bodily harm.” Id. at 432. In Dixon v. State, 302 Md. 447, 464 (1985), the Court of Appeals held that the evidence was sufficient to support a conviction for assault with intent to rob where the defendant 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 there was a weapon inside the newspaper.

Viewing the evidence in the light most favorable to the State, there was sufficient evidence to support the conviction for robbery because Montgomery acted “in such a way that would put an ordinary, reasonable person in fear of bodily harm.” Spencer, 422 Md. at 432. Montgomery told Mellott “to stand in a certain spot” and to keep her hands above the counter, where he could see them. Although Mellott was not supposed to charge a credit card number without seeing the customer’s credit card or identification, Montgomery kept saying, “You’re going to do this” and told Mellott that she “had to do it.” Because of Montgomery’s actions, Mellott was “scared for [her] life” and did not feel that she was free to leave the area.

Montgomery was accompanied by two other individuals, thus outnumbering Mellott and her nearest coworker. Although Montgomery and his two companions did not display a weapon, Mellott could reasonably have believed that Montgomery and his two companions had the ability to cause Mellott an immediate battery with their bare hands.

Evidence is sufficient to support a finding of intimidation where a defendant approaches a victim and, using a threatening tone or threatening body language, makes demands of the victim. See Dixon, 302 Md. at 464. Under the circumstances, the jury could reasonably have found that Montgomery intimidated Mellott.

“[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.” Hill v. State, 134 Md. App. 327 (2000).

In Hill, the evidence was sufficient to support a conviction for second-degree assault of the intentional threatening variety where the victim 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. Based on this evidence, a rational trier of fact could conclude that 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.

Viewing the evidence in the light most favorable to the State, there was sufficient evidence to support the conviction for second-degree assault because Montgomery had “an apparent present ability [to cause an immediate battery] from the viewpoint of the threatened victim.” Hill, 134 Md. App. at 355-56. Montgomery demanded that Mellott ring up a transaction even though he lacked a credit card or identification. Although Montgomery did not display a weapon, Mellott could reasonably have inferred that Montgomery possessed an unseen weapon, or that Montgomery and his two companions had the ability to cause Mellott an immediate battery with their bare hands.

CL §8-206(a)(1) prohibits obtaining property by use of a stolen credit card. CL §8-204 prohibits credit card theft and provides that a person may not take a credit card from another without the consent of the cardholder; or with knowledge that a credit card has been taken under, receive the credit card with the intent to use it. CL §8-204(a). Furthermore, a person other than the issuer may not receive a credit card that the person knows was taken. CL §8-204(d).

Viewing the evidence in the light most favorable to the State, there was sufficient evidence to support the conviction for obtaining property by use of a stolen credit card. Although Mellott continuously asked Montgomery for his ID and told Montgomery that she could not charge a credit card number without seeing identification and an actual credit card, Montgomery never produced identification or an actual or purported credit card. Instead, Montgomery ‘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 Montgomery then forced Mellott to use for the transaction.

Lamoy testified that her credit card company told her that her 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, 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 the coordinator that it believed that the credit cardholder had not authorized the two charges at King’s Jewelry Store.

Based on the circumstances, a rational trier of fact could have determined beyond a reasonable doubt that the facts were sufficient to support the conclusion that Montgomery obtained property by use of a stolen credit card.

COMMENTARY: “Multiplicity is the charging of the same offense in more than one count.” Brown v. State, 311 Md. 426, 432 n.5 (1988). “[W]hen considering whether the theft of multiple items of property, at the same time or at different times, from the same owner or from different owners, constitutes one offense or separate offenses, the ultimate criterion is whether the separate takings were part of a single scheme or continuing course of conduct. [T]he 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…most courts have had no problem applying the doctrine.” Kelley v. State, 402 Md. 745, 756 (2008).

Here, although Montgomery took two rings, “the separate takings were part of a single scheme or continuing course of conduct[,]” Kelley, 402 Md. at 756, because Montgomery took both rings during the same visit to the same jewelry store. Pursuant to the “single larceny” doctrine, Montgomery should have incurred one conviction for theft, and one conviction for obtaining property by use of a stolen credit card.

“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.” Brown, 311 Md. at 431.

CL §8-214(a) prohibits unauthorized use or disclosure of a credit card number. Montgomery took two actions, each of which was distinct and thus independently punishable. First, Montgomery disclosed Lamoy’s credit card number to Mellott when Montgomery showed Mellott the piece of paper with Lamoy’s credit card number written on it. Second, Montgomery used Lamoy’s credit card number when Montgomery forced Mellott to enter Lamoy’s credit card number. Thus, Montgomery was properly convicted of two violations of CL §8-214(a).

Montgomery contended 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.

“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.” Purnell v. State, 375 Md. 678, 693-95 (2003).

However, if the offenses at issue do not merge under the required evidence test, merger may still be required under the rule of lenity or the principle of fundamental fairness. Moore v. State, 198 Md. App. 655, 686 (2011). Under the rule of lenity, “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. As to the principle of fundamental fairness, the Court has looked to whether the type of act has historically resulted in multiple punishment. “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.

Pursuant to the “required evidence test,” the convictions for unauthorized use or disclosure of a credit card number would not merge, for sentencing purposes, with the conviction for obtaining property by use of a stolen credit card. The element of disclosure is present in CL §8-214(a) (unauthorized use or disclosure of a credit card number), but absent from CL §8-206(a)(1) (obtaining property by use of a stolen credit card). The element of using a stolen credit card for “the purpose of obtaining money, goods, services, or anything of value” is present in CL §8-206(a)(1), but absent from CL §8-214(a). Montgomery took two separate actions that were independently punishable: disclosing Lamoy’s credit card number and using Lamoy’s credit card number to obtain property. Furthermore, the two convictions did not merge, for sentencing, under the rule of lenity, or the principle of fundamental fairness.

PRACTICE TIPS: “[W]here a…Rule mandates that a trial court or courtroom clerk take a certain procedural action-and the record on appeal contains no information that negates the occurrence of that procedural action-there is a rebuttable presumption that the trial court or courtroom clerk took that procedural action. Unless the record offers contrary information, there is a rebuttable presumption that the jury in a criminal case was sworn pursuant to…Rule 4-312(g)(1).” Black v. State, No. 73, 2012 Md. LEXIS 264 (Md. May 3, 2012).