Johnson v. State

JOSHUA M. JOHNSON v. STATE OF MARYLAND

No. 738-2021

Court of Special Appeals of Maryland

May 16, 2022

Circuit Court for Carroll County Case No. C-06-CR-19-000553

Berger, Ripken, Wright, Alexander, Jr. (Senior Judge Specially Assigned), JJ.

OPINION ^[*]

Ripken, J.

Following a bench trial in the Circuit Court for Carroll County, Joshua Johnson ("Johnson") was found guilty of robbery, second-degree assault, and theft of property with a value greater than $100 but less than $1, 500. The court sentenced Johnson to ten years' incarceration, with all but five years suspended, to be followed by five years of probation. Johnson now appeals contending the circuit court's application of the reasonable doubt standard was erroneous. For the reasons to follow, we shall affirm the circuit court's judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The underlying facts are largely irrelevant to the issue raised in this appeal. For context in understanding the trial judge's pronouncement of the verdict, however, we set forth an abbreviated factual summary.^[1]

On October 17, 2017, Jennifer Downing ("Downing") was working an evening shift as a cashier at a 7-Eleven convenience store located on Liberty Road in Eldersburg, Carroll County. That evening, while Downing sat in a back room folding pizza boxes, she noticed on a surveillance video camera display that a customer had entered the store with his face completely concealed. Although she suspected that the person intended to rob the store, Downing went to the front anyway because her cell phone was there, and there was no telephone in the back room where she had been. As Downing anticipated, the man claimed to have a gun and demanded the money from the cash register as well as money stored beneath the register. She complied with his demand, and he fled the store, running across Liberty Road in the direction of a nearby housing development.

After the robber fled, Downing called the police. Law enforcement officers from the Carroll County Sherriff's Department and the Maryland State Police responded to the scene and established a perimeter. Within that perimeter, they encountered Johnson, who was wearing "a cutoff sleeveless shirt and shorts," which the officers deemed "peculiar" because the weather that night was "really cold." They asked to search the backpack Johnson was carrying, but he refused. Johnson gave the officers his information, and the officers then permitted him to go on his way.

Police officers subsequently discovered a nearby dumpster containing a black coat matching the description of the assailant's clothing given by Downing. A K-9 was trained on the scent of the coat and tracked that scent to a nearby house.^[2]

During the investigation, a detective contacted Johnson's probation agent and learned that Johnson had lived at the address where the K-9 had alerted. The detective went to that address and interviewed two residents, Catherine Miller ("Miller"), and her mother, the homeowner. At the time of the robbery, Miller and Johnson were romantically involved, but subsequently they ended their relationship.

According to Miller, Johnson called her the night of the robbery and told her that he was "hiding in the woods" and that he had been questioned by police about the robbery of the 7-Eleven. Cell phone records subpoenaed by the police confirmed Miller's account.

Further investigation led police to subpoena Johnson's Google account.^[3] Police discovered that, shortly before the robbery, Johnson had conducted incriminating searches on the internet, including "the best way to rob a store."

In July 2019, Johnson was indicted for robbery, assault in the second degree, and theft of property having a value of at least $100 but less than $1, 500. The case proceeded to a bench trial in the Circuit Court for Carroll County. The State called the investigating officers, Downing, and Miller to testify. Johnson called his then-fiancé to testify that they had been together earlier that evening. Johnson also testified and maintained that he did not rob the convenience store.

After hearing the evidence, the court announced its verdict. It began by discussing the different standards of proof required including preponderance of the evidence and clear and convincing evidence. It then discussed the burden of proof in criminal cases, stating:

Then comes proof beyond a reasonable doubt and to a moral certainty which applies to criminal cases. That is the highest level of proof to be proven and it requires the evidence to be such that when considered in the-what the evidence as opposed to the proposition, it carries more force or influence upon the Judge or if present, a jury such that they would act upon the evidence in the course of their normal personal or business affairs of a major nature.

Now, it does not require proof beyond all doubt. Or to a perfect mathematical certainty. It only requires proof that would be sufficient for a reasonable person to act on a major business matter or personal matter. I tend to think of it like a puzzle. When you get a puzzle out and you dump it on the table, you start with the pieces. And if you can get more than half of the pieces put together, you are past your first level of proof which is the preponderance of the evidence.

And if you get about 75 or 80 percent of the pieces, you are clear and convincing. But you don't have to get to 100 percent of the pieces to be beyond a reasonable doubt to a moral certainty. There can be odd pieces somehow in the box that don't belong to the puzzle, there could be some pieces missing and it still can meet the standard of proof.

The court then went on to detail its findings:

We start with the testimony of Catherine Miller. I find her credible in most respects. She describes a coat possessed by [Johnson]. She talks about phone calls she got from [Johnson] on the date and roughly the time of the incident where she is told that he has been questioned about the 7-Eleven having just been robbed and he is hiding in the woods.

We then get to Ms. Downing. She doesn't add a great deal to the situation. She proves the existence of a robbery, there is no question really about that in the evidence. But she does authenticate the video from the store and how [Johnson] was dressed and so on, and we have prints of that in evidence. Then we get the dog handler. The dog handler finds or is [led] to a coat and a glove in a dumpster across the street from the 7-Eleven so robbed and he obtains a sample from the clothing which is used by the dog to track the scent of someone who was wearing it. And that scent leads to 6310 Oak Hill Drive and the woods behind it and also an adjoining property. But it leads there and if we back up to Catherine Miller's testimony, we then have a situation where [Johnson] at that time lives in there with Ms. Miller and her mother.

Then the investigation continues and I find the dog, the evidence about the dogs sniffing and all credible. That there was and it did lead to that house. I mean, and the woods behind it. We then get to the investigators and how they handle all this. Now, the Defense with some legitimacy criticizes the fact [] that we have a [G]oogle search and a telephone roster. I find that the two-the records-the business records that come into evidence-those two sources are admissible. I indicate that the telephone calls corroborated by Catherine Miller and the [G]oogle search to a site about how to rob a convenience store.

And the issue then becomes is there sufficient evidence produced to convict [Johnson] beyond a reasonable doubt and to a moral certainty of robbery?

And I have gone through the evidence again, notice the proximity of the properties and the dumpster across the street where the coat is found and the glove and everything the State has. And I think the evidence is sufficient to establish a case of robbery beyond a reasonable doubt and to a moral certainty. I do not find [Johnson] or his fiancé credible in the issues that they testified to.

Therefore, he is guilty of all three counts.

The court sentenced Johnson to ten years of incarceration, with all but five years suspended, to be followed by five years of probation. This timely appeal followed.

ISSUE PRESENTED

Johnson raises one issue for our review: Did the trial court err by applying an incorrect definition of the proof beyond a reasonable doubt standard? For the reasons we explain below, we discern no error and thus shall affirm the circuit court's judgment.

STANDARD OF REVIEW

Appellate review of a bench trial is governed by Maryland Rule 8-131(c), which provides:

When an action has been tried without a jury, the appellate court will review the case on both the law and the evidence. It will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and will give due regard to the opportunity of the trial court to judge the credibility of the witnesses.

The clearly erroneous standard of Rule 8-131(c) "does not, of course, apply to legal conclusions." State v. Neger, 427 Md. 582, 595 (2012) (citation and quotation omitted). "For legal conclusions, we conduct a non-deferential review." Id.; accord Tribbitt v. State, 403 Md. 638, 644 (2008) (observing that an appellate court reviews "de novo the trial court's relation of [its factual findings] to the applicable law") (citation and quotation omitted).

DISCUSSION

Johnson contends that the trial judge applied an incorrect standard of proof, effectively denying his right to be found guilty only upon proof beyond a reasonable doubt. Specifically Johnson argues that the trial court's omission of the phrase "without reservation" from the description of the reasonable doubt standard indicates that the trial judge did not...