Fountain v. State

DEMETRIES FOUNTAIN v. STATE OF MARYLAND

No. 122

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2020

April 2, 2021

Circuit Court for Wicomico County

Case No.: C-22-CR-19-000545

UNREPORTED

Berger, Arthur, Woodward, Patrick L. (Senior Judge, Specially Assigned), JJ.

Opinion by Berger, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

Appellant, Demetries Fountain ("Fountain"), was convicted by a jury sitting in the Circuit Court for Wicomico County, of false imprisonment, two counts of conspiracy to commit false imprisonment, second degree assault, two counts of conspiracy to commit second degree assault, reckless endangerment, two counts of conspiracy to commit reckless endangerment, verbal extortion by threat of injury, conspiracy to commit verbal extortion, extortion of less than a $1000 and conspiracy to commit extortion of less than $1000. Fountain was sentenced to four consecutive terms of imprisonment of ten years each for false imprisonment, conspiracy to commit false imprisonment, second degree assault, and conspiracy to commit second degree assault, followed by five years, consecutive, for extortion by threat of injury and to five years, concurrent, for conspiracy to commit extortion by threat of injury. The trial court merged the remaining convictions for sentencing purposes. On this timely appeal, Fountain asks us to address the following questions:

1. Whether the evidence was insufficient to sustain the convictions for false imprisonment and conspiracy thereof.

2. Assuming, arguendo, that the evidence is sufficient to sustain the convictions, whether Fountain's separate sentences for false imprisonment, conspiracy to commit false imprisonment and second-degree assault are improper.

3. Whether the trial court erred in sentencing Fountain on multiple conspiracy counts.

For the following reasons, we answer question 3 in the affirmative and shall remand for resentencing. Otherwise, the judgments are affirmed.

BACKGROUND

On February 5, 2019, at around 11:00 p.m., Oliver Jackson stopped at a Wawa store in Salisbury, Maryland, to buy cigarettes. He ran into Dywan Marshall, a person he knew as "Pete," and asked him about purchasing $40 worth of crack cocaine. Jackson had purchased drugs from Marshall on prior occasions. He told him that he would be receiving his tax refund from the I.R.S. the following morning and that he could pay him then.

Marshall got into Jackson's car and they then drove to 910 East Church Street in Salisbury, where they were met outside by Fountain. They then went inside the apartment, and Jackson saw approximately six other people, both male and female, drinking, smoking marijuana and playing cards. After approximately 45 minutes, and after Marshall and Fountain spoke, Fountain gave Jackson the crack cocaine and Jackson smoked it immediately on the premises. Jackson did not pay for the drugs at that time. Jackson would later admit on cross-examination that, "at the beginning" it was his intention to stay in the apartment with everyone until the money was in his bank account and pay for it then.

Nevertheless, a couple hours later, Marshall and Fountain wanted to know when Jackson would pay for the crack cocaine he had just ingested. Jackson testified "I told them when it comes on my account. I wasn't going anywhere. I'm right here." Jackson also testified that he "felt threatened" and that Fountain "got in my face" and told him, "I want my money" and "I'm not going to play with you."

Shortly thereafter, Fountain left the apartment and returned with two foot-long snakes, both wrapped around his hands. Jackson testified that Fountain then "[p]ut them in my face" and told him they would bite him. As he did this, Fountain yelled andscreamed, "I want my money, I want my money." Jackson again testified that he did not feel free to leave the apartment. Fountain then left the apartment again, taking his snakes with him.

Fountain then returned and ordered Jackson to accompany a woman he did not know, but later identified at trial as Eleanor Callis, to a nearby bank. Jackson went into the building with Callis, gave her his ATM card and his pin, and she tried to retrieve the $40 owed to Fountain.¹ Asked later on cross-examination how Callis obtained his card, Jackson testified "I gave it to her. I felt threatened all night." Because he only had $32 in the bank, Callis did not retrieve any money at that time, and the two of them returned to the apartment in question.

At some point, apparently after this first trip to the bank, and according to Jackson, Callis took Jackson's cell phone and his car keys and Jackson maintained that he did not feel that he was free to leave. He later testified:

And they kept saying, well - okay, well, she kept checking, wanted to make sure if my money was there.

And I kept saying it's going to be there, I'm not going anywhere. And eventually, she - was it her? Someone hollered, make sure the doors are locked. Don't let him get out the window. So at that point, I realized that I wasn't going anywhere.

Jackson had testified:

At that point, I was really scared. I wanted to get away. I didn't know - because they had my phone. They had my keys, and I just wanted to pay them and that was it and get away from there.

Jackson told Fountain that the money would be there in the morning. Despite that, Fountain ordered him to remove all his clothes and then began beating him with a belt and his fists. The beating went on for several minutes, with the remainder of the group "egging" Fountain on.

At some point after these beatings, Fountain produced a silver handgun and put it up to Jackson's temple. Jackson testified that Fountain "told me he could kill me if he wanted to." Asked what Fountain's demeanor was at this point, Jackson replied, "[e]vil." Jackson identified the gun that was used that evening and it was admitted into evidence.

Later that morning, Callis took Jackson's car, without asking, and went back to the bank with his ATM card and his PIN number to try to retrieve the money. Callis withdrew $32 and returned to the apartment, and Jackson was ordered to strip down and was beaten again. Jackson testified that they "[w]hipped me with a belt and it seemed like everyone was punching and stomping on me" and that included everyone in the apartment, which included Fountain, Marshall, and several others.

Jackson then testified that, after again telling them that his tax refund would be deposited when the bank opened, the group then demanded he pay them $250. At around 5:00 or 6:00 a.m., someone handed Jackson his cellphone and he called his mother, Jacqueline Jackson. When he told her he needed more money, Marshall grabbed the phonefrom him and told Jackson's mother that Jackson was a "crack addict" and they "wanted their money." Jackson's mother was told where and when to meet the group to pay the $250.

One of the beatings was recorded on Jackson's own cell phone and that recording was played for the jury.² Jackson identified Fountain as the man beating him with a belt on the video.

Shortly thereafter, Jackson testified that the same woman from before, i.e., Callis, and another man took Jackson's car to go meet Jackson's mother.³ After they returned, Callis put the money, along with Jackson's keys and cellphone on the dining room table. As Fountain and Marshall were "splitting the money up," Jackson grabbed his belongings and fled out the door. Jackson met his parents, and they took him to the hospital. He sustained bruises, cuts and abrasions. He also reported the incident to the police.

On cross-examination, Jackson admitted that his initial intention was to stay in the apartment after smoking the drugs and wait until the money was in his bank account before paying and then leaving. He also agreed that he told police that he believed Fountain hit him in the head with the handgun, but he was not sure that was the case at trial. Jackson further testified: "I did try to leave, but I felt threatened. So that's when they started hollering about the -- make sure all the doors are locked, don't let him go through the windows."

Jackson was then asked who was the "leader" of this incident, and he replied that Fountain was the "leader" during the beatings with the belt. Jackson agreed that someone took his watch during the evening, but it was not Fountain. He also agreed that Fountain did not take him to the bank.

On redirect examination, Jackson clarified that, although he originally intended to stay at the house until the money was in his bank account, he did not want to stay after Fountain threatened him with the snakes, or after he was beaten and whipped with a belt, or after Fountain held a gun to his head. Asked whether he intended to stay after Fountain became aggressive, Jackson testified: "No. I was - I was scared. I was terrified. Terrified and confused."

Jackson's mother, Jacqueline Jackson, then testified at trial. She was getting ready to go to her work that morning as a school crossing guard when she got the call saying that her son, Jackson, owed the unidentified callers $250. She testified, in part, as follows:

The phone call, itself, it sound like my son was in hell. That's what it sound like, the background noises. This guy's asking me for money. Say, I got your son. He said, I got your son, and he owes me money, and I want my money, you know. So I said, well, how much does he owe you?

He said $250. I said, well, there's no way I - I don't have $250 on me. So I said, I'll have to go to the bank and get the money, but I need to -- I need to know he's all right. I think -- I said I need to know that's he's all right.

So they put him on the phone, and all he said was, I'm all right.

Ms. Jackson testified she heard "crazy stuff" in the background, including someone telling her...