Chilcoat v. State

843 A.2d 240

155 Md. App. 394

James Leonard CHILCOAT v. STATE of Maryland.

No. 2032, Sept. Term, 2002.

Court of Special Appeals of Maryland.

March 3, 2004.

William E. Nolan (Stephen E. Harris, Public Defender, on the brief), Baltimore, for Appellant.

Rachel Marblestone Kamins (J. Joseph Curran, Jr., Atty. Gen., on the brief), Baltimore, for Appellee.

Panel: DAVIS, JAMES R. EYLER, ADKINS, JJ.

ADKINS, Judge.

James Leonard Chilcoat, appellant, was convicted by a jury in the Circuit Court for Talbot County of first degree assault and carrying a dangerous weapon openly with the intent to injure. The trial court sentenced appellant to a term of fifteen years incarceration with all but one year suspended for the assault conviction, and to a three year sentence with all but two and one-half years suspended for the weapon conviction, six months to be served consecutive to the assault sentence. Chilcoat presents four questions, which we have reordered:

I. Was the evidence sufficient to sustain his conviction for first degree assault?

II. Was the evidence sufficient to sustain his conviction for carrying a dangerous weapon openly with intent to injure?

III. Did the trial court err by failing to merge the weapon conviction into the conviction for first degree assault?

IV. Did the trial court err by awarding restitution directly to the victim's creditors?

We hold that the evidence was sufficient to sustain Chilcoat's conviction for first degree assault, and we affirm Chilcoat's conviction for that offense. We hold that the evidence was insufficient to sustain Chilcoat's conviction for carrying a deadly weapon openly with intent to injure and that the trial court should not have awarded restitution directly to the victim's creditors. We therefore reverse Chilcoat's conviction on the weapon charge and vacate the restitution provision. Chilcoat's third question is therefore moot.

FACTS AND LEGAL PROCEEDINGS

Chilcoat's convictions are the result of his assault on Andrew Keene, at Pamela Hickman's home on January 20, 2002. About one week before the assault, Hickman and Chilcoat ended their two year intimate relationship. Because Chilcoat was married and Hickman believed "he had no intentions on leaving his wife[,]" she concluded that "[h]e wasn't doing nothing but hurting me and my son and his family." According to Hickman, about a week before the assault, Chilcoat entered a local bar or club called Pepper Jack's, saw Hickman sitting with Andrew Keene, and told her that he never wanted to see her again.

On January 20, 2002, Hickman invited Keene to her home in Easton for dinner. Keene arrived sometime around 3:00 or 3:30 that afternoon. Sometime after that, Chilcoat "pulled up in [her] driveway kind of fast." Hickman was in the kitchen at the time, but Chilcoat's arrival scared her, so she went into the living room.

Keene testified that Chilcoat came into the house through the back door. They argued, each telling the other to leave, but neither man did. According to Keene, Chilcoat told him that he had been seeing Hickman for two years and that Keene "came sneaking in the back door."

When Chilcoat walked toward the living room, Keene followed "because [he] was afraid that [Chilcoat] would hurt Ms. Hickman." Chilcoat then turned around and said, "I'll show you who's going home." Keene put his hands up to defend himself. The next thing Keene remembered was waking up on the kitchen floor and hearing Chilcoat's van leaving. Brian Hickman,¹ Pamela Hickman's son, was sleeping in the living room when his mother came into the room and told him that Chilcoat had just arrived. Brian got up and went to the area where the kitchen and living room meet. He heard Chilcoat and Keene arguing. When he saw Chilcoat pick up a beer stein, he called to his mother that they were fighting. "[T]hat's when Andy never got up and [Chilcoat] left[.]" Brian described the incident:

I seen Andy and [Chilcoat] started arguing by saying get out of the house. And then [Chilcoat] said he dated mom for 2 years and then Andy said well just get out and then Jim walked over to ... our little Budweiser stand we have and grabbed that mug and took it over to Andy and hit him 4 or 5 times in the back of the head and then made a comment, look he's dead.

Brian did not hear Keene threaten Chilcoat, nor did he see anything in Keene's hand when he fell.

Hickman did not see the fight, but returned to the kitchen when Brian yelled that Chilcoat and Keene were fighting. She saw Chilcoat standing over Keene with the beer stein in his hand. After Chilcoat put down the stein and left, Hickman tried to get Keene up, but he was initially unresponsive. When she was able to get him to the counter, she called the police and an ambulance. Asked how long Chilcoat had been in her home before she heard Brian screaming that they were fighting, she replied, "It happened very fast."

Chilcoat testified that he and Hickman had spent all but one Sunday together during the year prior to the incident. He said that he had spent the night at Hickman's house on the Thursday prior to the fight and that he had told Hickman that he would move in that Sunday. He reported that he had telephoned that morning and left messages "on her answering machine and on her personal phone that I was on my way." He said that he had been to her house earlier that day and had left a note on her door saying he would be back.

Chilcoat said that he had known Keene "a little bit" from seeing him "at the bar," "just to talk to." Chilcoat denied having seen Hickman and Keene together at Pepper Jack's and telling her that he did not want to see her anymore.

Chilcoat's version of what happened when he initially entered Hickman's house was similar to Keene's. According to Chilcoat, however, Keene "got all jumpy and he reached over and grabbed something off the counter." Chilcoat reported that he then grabbed the mug. He said that after they each had picked up something, they continued telling each other to leave. He said, "And I turned my head looking towards the living room waiting for somebody to walk in and Andy just flew at me." He said that he had the mug in his hand, and "it was just 4 or 5 seconds and it was just 1, 2, 3, 4 like that real quick blows, that was all."

Chilcoat maintained that the last blow, which hit the top of Keene's head, occurred while Keene was pushing him backwards. He said that Keene's weapon cut his fingers and that he was bleeding "through the chest." He said that his hand was bleeding and that he had bled "all over the mug." He said that Keene was getting up when he left and that he left because Keene "had already came at me once." Hickman, testifying in rebuttal, confirmed that Chilcoat had left several messages on her phone, including one telling her that he would be there around 11:00 or 11:30. She said that she had left home for about an hour because she did not want to be there when he came. He also left a message saying he had "already taken care of" Keene. She reported that after the incident, Chilcoat was not injured and she did not see him bleeding.

Additional facts will be set forth as needed in our discussion of the issues presented.

DISCUSSION

I.

First Degree Assault

The Medical Evidence

Keene testified that he did not remember being struck, indicating that he lost consciousness as a result of the blows. This was corroborated by Pamela Hickman's testimony that Keene was initially unresponsive when she went to help him up. Keene was taken by ambulance to Easton Memorial Hospital where medical personnel took CT scans and x-rays. Because the hospital did not have a neurologist available, Keene was transferred to Peninsula Regional Medical Center. There, he had surgery in which a portion of his skull was replaced with wire mesh. Photographs of Keene's external injuries were admitted into evidence.

Dr. Julius Zant, a neurosurgeon, testified that he saw Keene at Peninsula Regional Medical Center and determined that he had two depressed skull fractures. He reported that the CT scan showed open depressed fractures that "raise[d] the risk of infection." He reported that he performed surgery to debride the areas to prevent seizures and infection. He testified that the skull on the right side of Keene's head was in little pieces and that he had to remove that portion of the skull. To protect the "soft exposed area beneath where the bone is missing[,]" he replaced it with mesh held in with titanium screws. After the surgery, Keene was given intravenous antibiotics to prevent infection.

Zant also testified that it would be unusual for someone to die from an injury such as Keene's; it would be more likely for the injury to result in a treatable infection or abscess. Abscesses were not likely when such injuries were treated appropriately, but they "can be fairly likely" if the injury were left untreated. Even if treated, abscesses could result in blindness or paralysis, and, if not treated, they could result in death.

Zant explained that Keene's surgery was necessary, not simply to avoid infection, but because Keene "had a depressed skull fracture that required elevation and debridement." Zant added that, "[h]ad [the injuries] been an inch or two in either direction [Keene] may well have" died.

Keene's medical records were admitted into evidence. They indicate that Keene was discharged from the hospital on January 26, 2002, and was to receive post-operative care.

The Parties' Contentions

Chilcoat contends that the evidence was not sufficient to sustain his conviction for first degree assault because the medical testimony indicated that (1) the injury was not likely to result in death, (2) it did not cause any sensory or motor deficit, and (3) Keene did not suffer any dizziness or vomiting. The State counters that Dr. Zant's testimony established that Keene had two depressed skull fractures, that he removed a portion of Keene's skull and replaced it with...