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Law Digest — Court of Appeals, Court of Special Appeals — May 12, 2022

Maryland Court of Appeals

Criminal; possession of a firearm elements: Where the Maryland Public Safety code prohibits a felon from possessing a firearm, the word “possess” requires only that the person have knowledge of possession. It does not extend the knowledge requirement to proof of the defendant’s knowledge of status as a person prohibited from possessing a firearm. Howling v. State of Maryland, No. 35, Sept. Term, 2021 (filed April 28, 2022).  

Maryland Court of Special Appeals

Administrative; waiver: Where parties challenging a county planning board decision made a “passing reference” to an issue in submitted written testimony, without making clear the substance of the argument, that passing reference was insufficient to preserve an issue for appeal, particularly in a case with a voluminous record. Concerned Citizens of Cloverly v. Montgomery County Planning Board, No. 620, Sept. Term, 2021 (filed May 5, 2022).

Domestic relations; abuse or neglect: Where the mother allowed someone who sexually assaulted two minor children back into the house, although she had previously agreed the assailant would have no further contact with the minor children, the court did not err in placing the children with the Department of Social Services as children in need of assistance. IN RE: X.R., X.R., K.D, Nos. 1051, 1052 and 1054, Sept. Term, 2021 (filed May 2, 2022).

Maryland Court of Appeals

Criminal

Possession of a firearm elements

BOTTOM LINE: Where the Maryland Public Safety code prohibits a felon from possessing a firearm, the word “possess” requires only that the person have knowledge of possession. It does not extend the knowledge requirement to proof of the defendant’s knowledge of status as a person prohibited from possessing a firearm.

CASE: Howling v. State of Maryland, No. 35, Sept. Term, 2021; Abongnelah v. State of Maryland, No. 36, Sept. Term, 2021 (filed April 28, 2022) (Judges Getty, McDonald, Watts, HOTTEN, Booth, Biran, Battaglia).

FACTS: This opinion consolidates two separate cases that collectively concern the possession of a prohibited firearm and ammunition by disqualified persons. The United States Supreme Court in Rehaif v. United States, 139 S. Ct. 2191 (2019) interpreted 18 U.S.C. § 922(g), a federal statute prohibiting possession of a firearm, to require proof of the defendant’s knowledge of possessing a firearm and proof of the defendant’s knowledge of status as a person prohibited from possessing a firearm.

The question is whether the General Assembly intended to exclude the element of knowledge of a person’s status as a person prohibited from possessing a regulated firearm and ammunition pursuant to Md. Code Ann., Public Safety § 5-133 and § 5-133.1.

LAW: The United States Supreme Court’s interpretation of 18 U.S.C. § 922(g) neither relied upon nor announced a principle of constitutional law. The scope of the Court’s review was limited to ordinary statutory interpretation of “congressional intent.” Therefore, the Court of Special Appeals correctly concluded, in each of petitioners’ cases, that the holding of Rehaif does not bind Maryland courts.

Petitioners argue that Rehaif offers highly persuasive reasoning because the state and federal statutes are analogous, and both this court and the United States Supreme Court recognize a presumption of mens rea when interpreting criminal statutes. The court is not persuaded by these arguments. Pub. Safety § 5-133 and 18 U.S.C. § 922(g) may share the same purpose to criminalize possession of firearms under certain conditions, but the textual differences in mens rea language highlight how Congress and the General Assembly intended to take separate paths in criminalizing possession of regulated firearms.

While the plain text of 18 U.S.C. § 924(a) requires knowledge of prohibited status, the plain text of Pub. Safety § 5-133(b) only requires knowledge of the defendant’s possession of a firearm. The plain text of Pub. Safety § 5-133 omits mens rea language of knowledge. The statute uses the word “possess”, which this Court has interpreted to require knowledge of possession. The plain text of Pub. Safety § 5-133.1 similarly omits mens rea language and uses the word possess. In criminalizing the possession of a firearm and ammunition by a disqualified person, the clear intent of the General Assembly was to require only knowledge of that possession.

This analysis is also consistent with case law interpreting the mens rea element of criminal statutes. Maryland appellate courts have repeatedly recognized that the General Assembly intended to only require the mens rea element of knowledge of possession pursuant to Pub. Safety § 5-133. None of the Maryland cases interpreting Pub. Safety § 5-133 have extended the knowledge requirement to prohibited status. The court’s plain language analysis conforms with the legislative history of the statute. The court thus concludes that Pub. Safety § 5-133 and § 5-133.1 do not require the state to prove that the defendant had knowledge of prohibited status.

The circuit court in each case declined to give jury instructions that deviated from Maryland Pattern Jury Instructions. By declining to modify the pattern jury instruction with the addition of knowledge of prohibited status, the circuit court provided the jury with instructions that correctly stated Maryland law.

Finally, the state provided sufficient evidence that defendant Funiba T. Abongnelah knew that he possessed a firearm. In a recorded jail call, Abongnelah admitted that he possessed a firearm at the time of arrest: “I just so happened to get pulled over, and my man got pulled over . . . and I had a gun in my pocket.” Abongnelah also stipulated to his prior felony conviction that prohibits possession of a firearm pursuant to Pub. Safety § 5-133(b). Therefore, there was legally sufficient evidence to convict Abongnelah.

Judgments of the Court of Special Appeals affirmed.

Maryland Court of Special Appeals

Administrative

Waiver

BOTTOM LINE: Where parties challenging a county planning board decision made a “passing reference” to an issue in submitted written testimony, without making clear the substance of the argument, that passing reference was insufficient to preserve an issue for appeal, particularly in a case with a voluminous record.

CASE: Concerned Citizens of Cloverly v. Montgomery County Planning Board, No. 620, Sept. Term, 2021 (filed May 5, 2022). (Judges GRAEFF, Beachley, Eyler).

FACTS: This appeal involves an ongoing land use dispute between the Concerned Citizens of Cloverly and RCCG Jesus House DC. Jesus House seeks to build a church and a school on real property located in the Cloverly area of Montgomery County.

In 2017, the Montgomery County Planning Board of the Maryland-National Capital Park and Planning Commission adopted Resolution No. 17-019, approving Jesus House’s preliminary plan to subdivide the property. Appellants filed a petition for judicial review in the circuit court, which affirmed Resolution No. 17-019.

This court reversed the circuit court’s judgment with instructions to remand to the board for further proceedings. In 2020, after a hearing, the board adopted Resolution 20-039, approving Jesus House’s preliminary subdivision plan. Appellants filed a petition for judicial review in the Circuit Court for Montgomery County, which affirmed the board’s ruling.

LAW: Appellants contend that, when calculating wastewater use where the flow exceeds 5,000 gallons per day, or GPD, the design for a septic system requires calculating the maximum daily flow, or MDF, which takes into account all uses on the site that generate wastewater, “unless a lesser flow number is approved by” the Maryland Department of the Environment, or MDE. They assert that the board’s determination, approving a set-aside calculation based only on the school, the highest daily use, as opposed to the MDF, where the anticipated GPD of wastewater flow exceeded 5,000, was erroneous in the absence of MDE review and approval.

The court will not address this issue because it was not presented to the board. Appellants did not argue before the board that it should not approve the preliminary plan because there had not been MDE review and approval of the forest set-aside calculation.

Appellants acknowledge the rule that “a reviewing court ‘may not pass upon issues presented to it for the first time on judicial review and that are not encompassed in the final decision of the administrative agency.’” They argue, however, that they did raise the issue. The court disagrees.

At oral argument, counsel for appellants stated that the issue was raised before the board. In support, counsel did not cite to any testimony or argument at the hearing, but rather, he cited to Mr. Livay’s written testimony, which was entered into the administrative record. Counsel pointed to a sentence in Mr. Livay’s testimony that stated that “[t]he size of this hypothetical onsite treatment system would have required approval through MDE.”

The written statement, however, did not say, as appellants argue on appeal, that the preliminary plan should not be approved because MDE had not approved the set-aside calculation. The minor reference in the report to MDE, which was not discussed by either Mr. Livay or counsel at the hearing before the board, did not suffice to put the issue raised on appeal, i.e., whether MDE review and approval was required to approve the preliminary plan, before the board. A passing reference to an issue, without making clear the substance of the claim, is insufficient to preserve an issue for appeal, particularly in a case with a voluminous record.

Appellants next contend that the board “misapplied the established methodology for computing the septic field acreage required for wastewater flows exceeding 500 GPD.” They argue, as they did below, that the forest set-aside calculation did not incorporate “a 1.5 multiplier for each unit of 500 gallons after the first unit” of 10,000 square feet of absorption area, and because the multiplier was not factored into the set-aside calculation, the calculation “understated the school-use set-aside calculation by 2.3 acres.”

Whether the forest set-aside calculation was correct turns, in part, on the interpretation of COMCOR 27A.00.01.05.K. A manager of Montgomery County Department of Permitting Services, or MCDPS’s, well and septic section testified regarding the meaning of COMCOR 27A.00.01.05.K. Giving the board and MCDPS deference in the interpretation of this regulation, the board’s determination that the preliminary plan satisfied the requirement of Resolution 14-334 was legally correct, and was supported by substantial evidence.

Judgment of the Circuit Court for Montgomery County affirmed.

Domestic relations

Abuse or neglect

BOTTOM LINE: Where the mother allowed someone who sexually assaulted two minor children back into the house, although she had previously agreed the assailant would have no further contact with the minor children, the court did not err in placing the children with the Department of Social Services as children in need of assistance.

CASE: IN RE: X.R., X.R., K.D, Nos. 1051, 1052 and 1054, Sept. Term, 2021 (filed May 2, 2022) (Judges WELLS, Shaw, Zic).

FACTS: Two of the mother’s children, child one and child three, while in her care, were sexually abused by their half-brother. Another of mother’s children, child two, witnessed the abuse of child one. The circuit court found child one and child two to be children in need of assistance, or CINA, and placed them with the Department of Social Services. While the court did not find child three to be a CINA, it awarded custody to child three’s father, who, the department determined, was an appropriate person to entrust with child three’s care. Mother now appeals from that order.

LAW: Mother first argues that the juvenile court erred when it declared child one and child two to be CINAs. Mother argues that the juvenile court failed to establish that she was unable to care for the children because, in mother’s view, “repeated acts of abuse and/or neglect over time” is a necessary finding. The court holds that an ongoing pattern of repeated neglectful conduct is sufficient to substantiate a CINA finding, but mother fails to cite to a case that holds it is necessary.

Maryland courts have cited past behavior as an indicator of the potential for further abuse or neglect. Because the parties stipulated that mother violated the safety plan, the juvenile court did not abuse its discretion in finding child one and child two to be CINAs based on mother’s violation of the safety plan.

Mother next asserts that the denial of custody at the dispositional stage of a CINA proceeding must be made by clear and convincing evidence. But the CINA statute does not explicitly call for employment of a heightened standard to deny a parent custody at the dispositional stage. The phrase “more stringent standard” does not connote a new standard of proof, but refers to the quality of the evidence to be adduced at CINA dispositions.

The court holds that once a child is declared a CINA, a juvenile court must only make a custody determination that abides by the requirements provided in Maryland Code Annotated, Family Law, or FL, § 9-101. Mother submits that because FL § 9-101 is triggered as soon as a neglect finding is made (which shifts the burden to the parent to demonstrate why he or she is entitled to custody), it does not fit into a CINA dispositional proceeding—where the burden is on the department—because CINA requires a finding of neglect and a finding that the parent is unwilling or unable “to give proper care and attention to the child and the child’s needs,” which is not required under FL § 9-101. Mother’s argument is inapplicable because the juvenile court consulted FL § 9-101 only after finding the children to be CINAs.

At oral argument, Mother’s appellate counsel argued that a custody award at disposition is merely a prelude to an inevitable terminating parental rights, or TPR, further buttressing the need for a higher burden. The court disagrees. The CINA statute is permeated with provisions that underscore the impermanence of a dispositional custody award with the goal of trying to reunite the child with the parent. Because of the inherent modifiability of a CINA dispositional order, it is clear that a CINA disposition is far from a prelude to an inevitable TPR. It would therefore be illogical to require clear and convincing evidence when denying custody at the dispositional stage of a CINA proceeding.

Mother argues that even under a preponderance of the evidence standard, the department failed to prove that it was “necessary and proper” to remove child one and child two from mother’s custody. For many of the same reasons the court found that the juvenile court did not abuse its discretion in finding child one and child two to be CINAs, it holds that the juvenile court did not err in denying custody to mother.

Mother next contends that the juvenile court erred in awarding custody of child three to child three’s father because she was “able to care for the child and it was in [child three]’s best interests to remain with her Mother.” The court disagrees. By violating the safety plan, mother placed child three in an “abusive situation[,]” and it would be “contrary to the child’s welfare” to return her to mother’s custody.

Judgment of the Circuit Court for Baltimore County affirmed.

 


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