Legal Opinions - Maryland Court of Appeals: July 14, 2008

Criminal Procedure

Preservation for appeal

BOTTOM LINE: Court of Special Appeals properly concluded that appellant's sufficiency of evidence argument was not preserved for appellate review.

CASE: Starr v. State, No. 79, September Term, 2007 (filed June 26, 2008) (Judges Bell, Harrell, Battaglia, Green, MURPHY, Wilner (retired, specially assigned) & Cathell (retired, specially assigned)).

FACTS: On or about September 24, 2005, Curtis Starr threatened Kevin Lucas with a shotgun that he was carrying openly. The gun was wrapped in white tape and had a pistol grip.

Starr pulled the gun out of his pants, pointed it towards Lucas, and then fired one round in the air over Lucas' head. Fire discharged about two feet from the barrel and the shot caused movement in the leaves nearby. Lucas then saw Starr reload by flicking down the barrel and inserting a shell into the breach.

Lucas testified that he, too, owned shotguns and described Starr's shotgun as being approximately 28-32 inches long. He further testified that the gun's stock had been cut off and the barrel shortened.

Charged with wearing and carrying a dangerous weapon, Starr moved for judgment of acquittal on all counts, arguing, inter alia, that the statute did not apply to shotguns or even sawed off shotguns. The trial court disagreed with Starr and denied his motion.

At the close of all the evidence, Starr renewed the motion for judgment of acquittal; however, he did not state any additional reasons why the motion should be granted, nor did he request a jury instruction that he could only be convicted if the jury was persuaded beyond a reasonable doubt that shotgun was not a handgun. The jury convicted Starr on all counts.

In the Court of Special Appeals, Starr argued that he was improperly convicted of openly wearing and carrying a dangerous weapon with intent to injure, because the relevant law did not pertain to handguns.

The court found that Starr's appeal for insufficiency of the evidence was never argued with particularity in the trial court. Specifically, the court found that, in his motion below, Starr argued that mere possession of a sawed off shotgun is not prohibited by Maryland law and, furthermore, that a shotgun is not a dangerous weapon because it is not listed in the relevant statute. Starr did not argue, however, that the shotgun qualified as a handgun and thus was not prohibited. Accordingly, the court held that Starr's insufficiency of the evidence claim was not preserved for appellate review.

Starr appealed to the Court of Appeals, which affirmed.

LAW: It is well settled that "appellate review of the sufficiency of the evidence in a criminal case tried by a jury is predicated on the refusal of the trial court to grant a motion for judgment of acquittal." Lotharp v. State, 231 Md. 239, 240 (1963).

A criminal defendant who moves for judgment of acquittal is required by Md. Rule 4-324(a) to "state with particularity all reasons why the motion should be granted[,]" and is not entitled to appellate review of reasons stated for the first time on appeal. State v. Lyles, 308 Md. 129, 135-36 (1986); Muir v. State, 308 Md. 208, 218-19 (1986); Graham v. State, 325 Md. 398, 416-17 (1992).

In Graham, the petitioner, who had been convicted of theft of property worth $300 or more, argued that this conviction should be reversed on the ground "that the State failed to establish that [the stolen] items were worth $300 or more." Id. at 416. The Court, however, refused to consider that argument because the record showed that the petitioner's trial counsel moved for a judgment of acquittal solely on the ground that the State had failed to prove that the owner of the stolen items was "a corporation, licensed to practice in the State of Maryland." Id. at 417.

"Sufficiency" arguments that were not presented to the trial judge are often presented to the Court of Special Appeals, and are rejected by that court under the authority of Lyles, Muir and Graham. For example, in McIntyre v. State, 168 Md. App. 504 (2006), while affirming possession and distribution of child pornography convictions, the Court of Special Appeals refused to decide whether "the evidence produced at trial was insufficient to establish that the images depicted actual children, as opposed to virtual images of children[,]" because that argument was not made in the Circuit Court when the appellant's trial counsel moved for a judgment of acquittal. Id. at 526-27.

In a jury trial, the only way to raise and to preserve for appellate review the issue of the legal sufficiency of the evidence is to move for a judgment of acquittal on that ground. Fraidin v. State, 85 Md. App. 231, 244-45 (1991). Under Md. Rule 4-324(a), a defendant is further 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. In State v. Lyles, 308 Md. 129, 135 (1986), this Court held that a defendant is "required to state with particularity all reasons why his motion for judgment of acquittal should be granted."