Chow v. State

881 A.2d 1148

163 Md. App. 492

Todd Lin CHOW v. STATE of Maryland.

No. 2366, September Term, 2003.

Court of Special Appeals of Maryland.

June 2, 2005.

Reconsideration Denied October 4, 2005.

David M. Simpson, Michael Wein, Greenbelt, for Appellant.

Annabelle L. Lisic (Joseph J. Curran, Jr., Atty. Gen., on the brief), Baltimore, for Appellee.

Panel: DAVIS, BARBERA, THEODORE G. BLOOM (Retired, specially assigned), JJ.

BARBERA, Judge.

This appeal requires us to consider the scope of conduct the General Assembly sought to prohibit by its enactment of Maryland Code (1957, 1996 Repl. Vol., 2002 Supp.), Art. 27, § 442(d). This subsection makes it unlawful for a person, who is not a regulated gun dealer, to "sell, rent, transfer, or purchase any regulated firearm" until seven days after submission by the prospective purchaser or transferee of an application to purchase or transfer the firearm. We are asked to decide in particular whether the verb "transfer," as it is used in this subsection, includes a temporary exchange—a loan—of a firearm by its owner to another person. For the reasons we shall explain, we hold that it does.

I.

The statutory provisions at issue in this case are found within then Article 27, §§ 441 et seq. of the Maryland Code, the "Regulated Firearms" subheading. Specifically at issue are §§ 442(d) and 449(f) of the subheading.¹ Section 442(d) provides:

Sale by other than regulated firearms dealer.—(1) A person who is not a regulated firearms dealer may not sell, rent, transfer, or purchase any regulated firearm until after 7 days shall have elapsed from the time an application to purchase or transfer shall have been executed by the prospective purchaser or transferee, in triplicate, and the original copy is forwarded by a regulated firearms dealer to the Secretary.

(Emphasis added.)

Section 449(f) establishes the penalty for violation of § 442(d) and provides:

Knowing participants in sale, rental, etc.—Except as otherwise provided in this section, any dealer or person who knowingly participates in the illegal sale, rental, transfer, purchase, possession, or receipt of a regulated firearm in violation of this subheading shall be guilty of a misdemeanor and upon conviction shall be fined not more than $10,000 or imprisoned for not more that 5 years, or both. . . .

Appellant, Todd Lin Chow, a District of Columbia Metropolitan Police Department officer, was tried at a court trial in the Circuit Court for Prince George's County, on charges that he violated § 442(d) for having transferred a gun he owned by lending it to a friend. Over appellant's objection that § 442(d) does not proscribe this conduct because it does not come within the meaning of the term "transfer," the court found him guilty.

Appellant's friend, Man Nguyen, was the State's main witness at trial. Nguyen testified that, while driving his car on April 1, 2003, he was stopped by the Prince George's County Police Department for a broken taillight. At that time, the police searched Nguyen's vehicle, and discovered a Glock semi-automatic pistol (not the weapon that is the subject of this appeal). The pistol was properly registered in Nguyen's name, but he did not have a permit to carry it. The police confiscated it in connection with their investigation of a recent murder of one of Nguyen's friends.

The following day, Nguyen contacted appellant. Nguyen explained to appellant that this gun and other guns at his home had been confiscated by the police, and he was "anxious" to buy another gun. He told appellant that he needed to purchase a gun for protection, by which he meant "[h]ome security," "[s]o, [appellant] offered me his gun."

The two men arranged to meet later that day for lunch at a restaurant in Bowie, Maryland. Sometime during this meeting, appellant gave Nguyen a nine millimeter, semi-automatic handgun that he had owned since 1996.

Nguyen told appellant that he wanted to test fire the weapon before purchasing it. The pair got into Nguyen's vehicle and headed to a firing range in Upper Marlboro. En route, Nguyen received a business call on his cellular telephone, requiring that he abort the trip to the firing range.² Nguyen drove appellant back to the restaurant where appellant's car was parked and dropped him off. Appellant's weapon remained in Nguyen's car. No money was exchanged between Nguyen and appellant.

Soon thereafter, Nguyen contacted appellant by telephone. Nguyen testified: "I was interested in buying it and I called him, and, you know, I told him I'd give it back to him but he said, that's cool, just keep it in the house and he'll pick it up." Nguyen further testified that he anticipated the weapon would be returned to appellant "as soon as possible."

Detective Donnie Judd testified as a State's witness. He reported that, on April 4, 2003, he and other members of the Prince George's County Police Department stopped Nguyen on a warrant to arrest him for having illegally carried the gun that was found in his car three days earlier. In the ensuing search of Nguyen's car, the police discovered appellant's loaded handgun in the car's center console. Detective Judd ran an NCIC³ check and determined that the handgun had not been reported stolen. The gun was test fired and determined to be operable.

Nguyen was arrested and taken to the police station, where he gave a four-page statement. The first paragraph of the statement addressed how he had obtained appellant's handgun, and that portion of the statement was admitted into evidence. It varied from Nguyen's trial testimony. Nguyen wrote:

I know [sic] [appellant] for 2-3 [years]. I was detain [sic] on 4-1-03 and PGPD took all my guns. Next [d]ay, I called [appellant] and asked him if I could hold on to his gun until I can get my guns back in a week or two because I felt uncomfortable without a gun[.] We then met at Olive Garden att [sic] 4pm in Bowie and had lunch and after that he give [sic] me his 9mm, out of a bag in the front Passengers [sic] seat[.]

Sergeant William Szimanski, of the State Police Licensing Division, Firearms Registration Section, performs background checks on persons purchasing regulated firearms in Maryland and deals with records concerning firearms purchases. He testified that the records related to appellant's handgun reflect that appellant bought the handgun in November 1996, and it was formally transferred to him on the 27th of that month, after completion of the weapon registration process. The records show no subsequent transfer of the handgun, and no application for a transfer of the gun from appellant to Nguyen.

Sergeant Guillermo Rivera, of the Office of Internal Affairs of the District of Columbia Metropolitan Police Department, also testified. He stated that appellant had not filed a stolen weapon report between November 17, 2001 and November 17, 2003.

At the close of the State's case, appellant made a motion for judgment of acquittal. Appellant argued that § 442(d) does not cover his conduct, which was simply a temporary exchange of the handgun. In the alternative, appellant argued that he did not "knowingly" violate the statute, as required by § 449(f), because the State did not prove that he knew the transferee, Nguyen, had not filed the application required by § 442(d).

The State countered that appellant's leaving the gun with Nguyen was a "transfer" of it, and therefore was covered by § 442(d). The State further argued that appellant was aware of the requirements for transferring a handgun, because he had fulfilled those requirements himself when he purchased the gun in 1996. The State finally argued that the "plain meaning" of transfer does not necessarily include the conveyance of title, and encompasses a mere loan.

After hearing from counsel on both issues, the court denied the motion. Appellant then rested without putting on any evidence, and the court issued its ruling:

The Court having reviewed the statute and now the burden is on the State to prove beyond a reasonable doubt, the Court finds based upon the testimony of the State's witnesses that there was in fact a transfer in this case.

The Court also finds that based upon the facts that it was a temporary transfer.

It is the Court's assessment of the testimony of the State's witness that it was in fact a loan, although he has testified to two totally opposite things; he testified that it was in fact an anticipated purchase, and on the other hand, there was testimony or at least — yeah, there was testimony that it was in fact a loan. So, we have two inconsistent statements by the State's witness.

And the State asks the Court or states to the Court — argues to the Court that under either theory, that there was an illegal transfer in this case. The Court agrees that there was an illegal transfer.

The court then found appellant guilty of the charge and proceeded immediately to sentencing. The court imposed a $200.00 fine and a 60-day suspended sentence. On appeal, appellant challenges the court's interpretation of § 442(d) and its finding that he "knowingly" violated it.

II.

Appellant's first question is a purely legal one: What is meant by the word "transfer" in the phrase in § 442(d) that makes it unlawful for a person to "sell, rent, transfer or purchase" a regulated firearm without there first being compliance with the required application process? Appellant takes the position that the term does not contemplate a loan of a regulated firearm. Without directly stating what he believes the term means, he seems to argue that "transfer" must mean "gift," i.e., something that is not a sale or rental, and also is not a loan. The State disagrees, arguing that, by its plain terms, § 442(d) prohibits all exchanges of regulated firearms: sales, rentals, and other transfers that are made without consideration, including both gifts and loans.

In deciding which position is correct, we must engage in statutory construction, the chief goal of which is to...