Chen v. State

784 A.2d 641

141 Md. App. 123

Zi Qiang CHEN, v. STATE of Maryland.

No. 2710, Sept. Term, 2000.

Court of Special Appeals of Maryland.

November 5, 2001.

Nancy S. Forster, Assistant Public Defender (Stephen E. Harris, Public Defender on the brief,) Baltimore, for appellant.

Gary E. Bair, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General,) Baltimore and (Logan C. Widdowson, State's Attorney for Somerset County, Princess Anne, on the brief) for appellee.

Argued before DAVIS, KRAUSER, and WILLIAM W. WENNER, (retired, specially assigned) JJ.

KRAUSER, Judge.

The Circuit Court for Somerset County convicted appellant, Zi Qiang Chen, of possessing and transporting unstamped cigarettes in violation of Md.Code Ann. (1988, 1997 Repl.Vol., 2000 Supp.), §§ 12-305 and 13-1015 of the Tax-General Article ("T.G."). It then fined him $3,595, whereupon he noted this appeal.

Mr. Chen now urges this Court to reverse his convictions, claiming that T.G. § 12-305 is "of no force and effect" because it does not contain a penalty, and that the evidence does not support his conviction under T.G. § 13-1015. The former claim is self-explanatory but the latter requires explanation.

Section 13-1015, as appellant notes, proscribes willfully transporting unstamped cigarettes. Therefore, according to appellant, the State had the burden of proving not only that he intentionally transported the cigarettes in question but that he did so, knowing it to be a violation of the law. That burden, appellant asserts, the State failed to bear.

Because we find no merit to either claim, we shall hold that the absence of a penalty in T.G. § 12-305 does not render that statutory provision a nullity and that the term "willful[ ]" in the context of T.G. § 13-1015 denotes only an intentional and deliberate violation of that provision and does not require that the State prove that appellant knew that what he was doing was illegal. In other words, we decline appellant's invitation to carve out another exception to the common law rule that "ignorance of the law is no excuse" and that every citizen is presumed to know the law.

BACKGROUND

Before trial, appellant presented a motion to dismiss and a motion to suppress the evidence. After a hearing, both motions were denied, and this matter proceeded to trial on a statement of the facts presented by the State and agreed to by appellant. The following is a summary of that statement:

On July 11, 2000, agents of the Field Enforcement Division of the Comptroller of the Treasury conducted a surveillance of the Peace Token store in New Church, Virginia, as part of an effort to stem the importation of large quantities of unstamped cigarettes into the State of Maryland. At approximately 4:05 p.m. that day, Agent Kane, one of the surveilling officers, observed a white caravan with North Carolina license plates parked under a wooden canopy, at the rear of the store. According to Agent Kane, this was "a common practice used by individuals when they are picking up large quantities of cigarettes from this establishment and transporting them into the State of Maryland," because a vehicle parked at that location is not visible from the highway.

At approximately 4:25 p.m., Agent Kane observed appellant open the passenger side door of the caravan and "proceed[ ] to move a few items around the passenger's compartment of the vehicle." After closing and locking the passenger side door of the caravan, appellant went to the rear of the vehicle where he opened the tailgate and removed several large trash bags. He then entered the rear of the store.

At approximately 4:35 p.m., Agent Kane observed appellant leave the rear of the store and reopen the tailgate of the caravan. Upon entering the rear of the vehicle, he began rearranging items inside. Moments later, he left the vehicle and returned to the rear of the store. There, he picked up a large black trash bag containing approximately two large rectangular objects. "Knowing this is a common method to transport cigarettes," Agent Kane believed the items in the large black trash bag to be "cases of cigarettes."

At approximately 4:41 p.m., appellant placed the trash bag into the caravan. After climbing into the driver's seat of the vehicle, he drove away from the Peace Token store, heading north. The agents followed.

Twenty minutes later, appellant was observed by the agents pulling into a Royal Farm store. At approximately 5:20 p.m., appellant left the Royal Farm store with a hand cart containing four boxes, which the agents believed, from the markings on the boxes, to be cases of cigarettes. After taking the boxes to the rear of the caravan, appellant placed them in trash bags. He covered the trash bags with a blanket and then drove across the street to "Dixieland," an Exxon gas station and "also a discount cigarette establishment." Several minutes later, appellant left Dixieland and drove north on Route 13.

The agents followed appellant as he crossed the Virginia state line into Maryland. At approximately 5:45 p.m., they stopped his vehicle in Somerset County, Maryland.

After identifying himself, Agent Kane explained to appellant that he believed that appellant was transporting cigarettes into Maryland. He asked appellant "if he had cigarettes in his vehicle." Appellant replied, "yes, I have cigarettes." But when asked if he had any paperwork permitting him to transport the cigarettes, appellant stated, "I speak little English but I have cigarettes."

Agent Kane asked appellant to get out of his vehicle. Standing at the rear of the vehicle with appellant, Agent Kane again asked appellant "if he had any form of paperwork allowing him to transport his load of cigarettes." Appellant replied, "I don't understand, I have cigarettes." When the agents requested permission to look inside his vehicle, appellant responded by nodding his head up and down several times. Appellant stated, "the cigarettes are in the car."

Opening the tailgate of appellant's vehicle, agents found a blanket covering several large black trash bags. Inside the bags were numerous cases of cigarettes bearing Virginia tax stamps. They placed appellant under arrest for transporting and possessing unstamped cigarettes and then transported him to the Maryland State Police barrack in Somerset County. A search of appellant's vehicle uncovered 7,190 packs of various brands of cigarettes.

The statement of facts concluded with the following synopsis of appellant's testimony:

The defendant would testify that he was traveling through the State of Maryland on his way to another state when he was stopped by the Maryland agents. And his testimony would further be that at no time were the cigarettes intended for use, distribution or sale into or within the State of Maryland.

Before addressing the merits of appellant's claims, a review of the history of the statute at issue, known as the "State Tobacco Tax Act" and now contained in Title 12 and portions of Title 13 of the T.G. Article, provides a helpful context in which to consider his claims.

The State Tobacco Tax Act

In 1958, the Maryland General Assembly enacted the State Tobacco Tax Act (the "Act"). 1958 Md. Laws ch. 1, § 4. The Act added thirty-four new sections to then Article 81 (Revenue and Tax) of the Maryland Annotated Code of 1957. Md. Ann. Code (1957, 1958 Supp.), Art. 81, §§ 414-47. The Act, among other things, imposed "a tax to be paid and collected ... on all cigarettes used, possessed or held in the State of Maryland." Id. at § 414. To evidence such payment, the Act required that stamps be "affixed by the first vendor or user who [had possessed said cigarettes]...." Id. at § 420. Persons found selling or possessing unstamped cigarettes, who did not fall within an enumerated exemption, such as certain "wholesaler[s]" or "consumer[s]," were subject to a fine or imprisonment or both. Id. at § 446.

In 1961, the legislature revised the Act and added new sections to it. 1961 Md. Laws ch. 669, § 2. Among the revisions made was that § 446, which had previously both prohibited the possession and sale of unstamped cigarettes and imposed a penalty for violating that prohibition, was divided into two sections: § 438(a), which defined the acts prohibited, and § 463(a), which set forth the penalty for committing those acts. Also, the legislature added language to § 463(a), imposing a penalty: a fine "not more than $1000.00 or imprison[ment] for not more than one year, or both ..." for the "willful[ ]" and "knowing[ ]" possession of unstamped cigarettes.¹ And it enacted § 455, which prohibited, and imposed a penalty for, the transport of unstamped cigarettes without the appropriate invoices or delivery tickets on the roads and highways of Maryland.

In 1988, Article 81 was repealed "in its entirety and substantial portions [including those sections dealing with the Act] were transferred into the concurrently enacted Tax-General Article." Rossville Vending Mach. Corp. v. Comptroller of Treasury, 97 Md.App. 305, 313 n. 5, 629 A.2d 1283 (1993)(citing 1988 Md. Laws ch. 2). As a result, Article 81, § 438(a), prohibiting the possession of unstamped cigarettes, became T.G. § 12-305; Article 81, § 463(a), containing the penalty provision for § 438, became T.G. § 13-1014; and Article 81, § 455, which prohibited and imposed a penalty for the transport of unstamped cigarettes on the roads of Maryland, became T.G. § 13-1015. T.G. § 12-305 provides that, "[u]nless otherwise authorized under this title, a person may not possess, sell, or attempt to sell unstamped cigarettes in the State."² Its penalty provision, T.G. § 13-1014(a), provides that "[a] person who willfully possesses, sells, or attempts to sell unstamped ... cigarettes in the State in violation of Title 12 of this article is guilty of a misdemeanor...."³ And T.G. § 13-1015 provides that "[a] person who willfully ... transports within, this State cigarettes ... on which the tobacco tax has not been...