Maryland Appellate Court

Administrative; disqualifying crime: Where a man who applied to purchase a handgun was previously convicted for witness tampering, the Maryland State Police did not err in denying his application. In the Matter of Mark McCloy, No. 673, Sept. Term, 2022 (filed May 1, 2023).

Criminal; lesser included charge: Where the defendant was expressly charged with aggravated felony of second-degree assault, that necessarily included the lesser charge of simple second-degree assault. As such, the conviction for the lesser included offense of simple second-degree assault was not improper. Love v. State, No. 0488, Sept. Term, 2022 (filed May 2, 2023).

Administrative

Disqualifying crime

BOTTOM LINE: Where a man who applied to purchase a handgun was previously convicted for witness tampering, the Maryland State Police did not err in denying his application.

CASE: In the Matter of Mark McCloy, No. 673, Sept. Term, 2022 (filed May 1, 2023) (Judges Wells, BERGER, Albright).

FACTS: This appeal arises from the denial by the Maryland State Police, or MSP, of an application to purchase a handgun filed by Mark McCloy. The MSP determined that McCloy’s 1999 conviction in the District of Columbia to witness tampering, in violation of 18 U.S.C. § 1512(c)(1), qualified as a “disqualifying crime” that prohibited him from possessing a regulated firearm under Maryland law. The Office of Administrative Hearings reviewed the decision, and an administrative law judge, or ALJ, affirmed the denial of the application. The circuit court affirmed the ALJ’s decision.

LAW: “[A] person may not possess a regulated firearm if the person has been convicted of a disqualifying crime.” “[A] ‘[d]isqualifying crime’ means: (1) a crime of violence; (2) a violation classified as a felony in the State; or (3) a violation classified as a misdemeanor in the State that carries a statutory penalty of more than [two] years.”

The MSP determined § 1512(c)(1) was comparable to § 9-302 of Maryland’s Criminal Law Article, or CR, and because this statute carried a penalty of up to 10 years’ imprisonment, it constituted a “disqualifying crime” under Maryland law. McCloy argues that because his conviction occurred in 1999, it can only be compared to other Maryland statutes that existed in 1999. McCloy asserts that, since CR § 9-305 became effective on Oct. 1, 2002, he could not have been charged or convicted under this purportedly equivalent Maryland statute in 1999.

Regardless, even if the statutes could be compared, McCloy argues that § 1512(c)(1), does not sufficiently align with the Maryland statute to be considered equivalent. Further, he maintains that because the underlying facts of his conviction would not support a conviction under the Maryland statute, the laws are not equivalent, and his conviction is therefore not a “disqualifying crime.”

McCloy’s argument that his 1999 conviction cannot be compared to CR § 9-305(a), or to § 9-306, because those statutes were not in existence in 1999 is unavailing. In short, it is irrelevant what the laws of Maryland were at the time of his conviction; what matters is that the statute deemed comparable to the out-of-state conviction was in place at the time he submitted his handgun qualification license, or HQL, application.

No entity tasked with assessing whether McCloy’s conviction was a “disqualifying crime” — not the MSP, the ALJ nor the circuit court — erred by considering a potentially comparable Maryland law that was in effect at the time McCloy sought his HQL in 2021 rather than an equivalent Maryland statute in effect at the time of his 1999 conviction. Therefore, this court’s review of whether the MSP erred in denying McCloy’s permit depends upon whether the statute under which McCloy was convicted can be characterized as equivalent to CR § 9-305(a), thereby qualifying the conviction as a “disqualifying crime.”

When assessing the determinations made by the MSP of the equivalency of out-of- state convictions against comparable misdemeanors in Maryland, this court compares the statutory elements of the applicant’s out-of-state conviction with the elements of the comparable Maryland misdemeanor with a penalty in excess of two years’ imprisonment. If this court concludes that the statutes are comparable, it assesses whether a reasonable mind could conclude that the out-of-state and Maryland statutes prohibit similar conduct, based upon a comparison of the elements of the respective statutes. If both these inquiries are affirmative, then the determination that the out-of- state conviction is a “disqualifying crime” should be affirmed.

Applied here, a reasonable mind could reach the determination made by the MSP that 18 U.S.C. § 1512(c)(1) and CR § 9-305(a) are equivalent such that substantial evidence exists to support the conclusion that McCloy had been convicted of a “disqualifying crime” that precluded him from obtaining a handgun permit. This court therefore agrees with the ultimate determination of the ALJ that the MSP did not err in denying McCloy’s application to purchase a regulated firearm.

McCloy asserts that even if the MSP correctly applied the law and determined that his 1999 conviction prohibits the approval of his 2021 HQL application, numerous equitable principles bar the MSP from denying him his right to gun ownership. These principles do not warrant the outcome advanced by McCloy, particularly in this context.

Judgment of the Circuit Court for Queen Anne’s County affirmed.

Criminal

Lesser included charge

BOTTOM LINE: Where the defendant was expressly charged with aggravated felony of second-degree assault, that necessarily included the lesser charge of simple second-degree assault. As such, the conviction for the lesser included offense of simple second-degree assault was not improper.

CASE: Love v. State, No. 0488, Sept. Term, 2022 (filed May 2, 2023). (Judges Nazarian, Reed, MOYLAN).

FACTS: Tia Danielle Love was convicted in the circuit court of second-degree assault and trespassing on private property. On the conviction for assault in the second degree, the trial court imposed a sentence of 10 years in prison but suspended all but two days. On the conviction for trespassing, the trial court imposed a consecutive sentence of 90 days, but suspended all of it. The combined sentence to be served was thus one of two days hard time. A term of probation for five years was also imposed.

In this appeal, the appellant raises the two contentions: (1) that the trial judge erroneously submitted an uncharged offense to the jury and (2) that the evidence was not legally sufficient to sustain the two convictions.

LAW: The appellant asserts that second-degree assault was never charged. In a more nuanced sense, of course, it definitely was charged. It was charged implicitly. In the course of the charge for the aggravated felony of second-degree assault against an emergency medical technician pursuant to § 3-203(c), every constituent element of simple second-degree assault pursuant to § 3-203(a) would necessarily have been expressly charged as well.

There is not a single element of simple second-degree assault that is not also an indispensable element of aggravated second-degree assault. With respect to any actual element of simple second-degree assault, it necessarily had been charged and could, therefore, have come as no surprise as an element.

The appellant is, in effect, arguing that § 3-203(a) is not a lesser included offense as a part of § 3-203(c). The statute itself, however, flatly provides otherwise. This is the very nature of being a lesser included offense. It is what “lesser included” means. The conviction in this case of the appellant for the lesser included offense of simple second-degree assault was perfectly proper.

Second, the appellant contends that she was legally entitled to a verdict of acquittal at the end of the case because the evidence was not legally sufficient to support either her conviction for a second-degree assault or her conviction for trespassing. The contention is without merit.

Judgment of the Circuit Court for Anne Arundel County affirmed.