Rivas-Membreno v. State

DENNIS A. RIVAS-MEMBRENO v. STATE OF MARYLAND

No. 2211

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2014

February 3, 2016

UNREPORTED

Berger, Nazarian, Leahy, 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.

Following a jury trial in the Circuit Court for Montgomery County, appellant, Dennis A. Rivas-Membreno ("Rivas-Membreno"), was convicted of two counts of robbery with a dangerous weapon, three counts of false imprisonment, conspiracy to commit robbery with a dangerous weapon, inducing false testimony, witness intimidation, solicitation of witness intimidation, and obstruction of justice. On August 21, 2014, Rivas-Membreno was sentenced to a total of thirty years' incarceration.

On appeal, Rivas-Membreno presents two issues for our review,¹ which we rephrase as follows:

1. Whether the trial court erred in admitting evidence relied upon by an expert, regarding the locations of cell phone towers.

2. Whether the trial court erred in failing to merge Rivas-Membreno's sentences for witness intimidation, solicitation of witness intimidation, and inducing false testimony, with his sentence for obstruction of justice.

For the reasons set forth below, we shall affirm the judgment of the Circuit Court for Montgomery County.

FACTUAL AND PROCEDURAL BACKGROUND

On September 29, 2013, two men wearing ski-masks and gloves entered a Five Guys restaurant in Gaithersburg, Maryland. One of the men pointed what appeared to be a gun at the supervisor, Rosa Gomez-Melendez ("Gomez-Melendez"), and demanded that she open the restaurant's safe. While one of the men took money from the safe, the other took Gomez-Melendez's and two other employees' cell phones, and led the three employees into the restaurant's walk-in freezer. After the employees determined that the assailants had left, they emerged from the freezer and used a computer to contact their family, who, in turn, contacted the police.

Carolina Caero ("Caero") was one of the employees who was placed in the freezer the night of the robbery. After the robbery, Caero informed the police that she recognized one of the robbers as Alvin Compres ("Compres"). Caero averred that she and Compres had gone to school together, and that in the past Compres frequently came to the restaurant to pick up his wife who had previously worked at the restaurant. Likewise, Stephanie Majia ("Majia"), another employee working that evening, also identified Compres as one of the robbers.

Upon Compres' apprehension, he disclosed that he planned the robbery with Rivas-Membreno. Compress further reported that he and Rivas-Membreno entered the restaurant together, and that it was Rivas-Membreno who ordered Gomez-Melendez to open the safe and that Rivas-Membreno took the money. Additionally, Compres averred that after the robbery he and Rivas-Membreno went to Compres' house and split the $1,500 they stolebetween themselves and a third accomplice who drove the getaway vehicle. At the time of Rivas-Membreno's trial, Compres had already pled guilty for crimes relating to his participation in the robbery, and he was awaiting sentencing.

Rivas-Membreno was originally charged with two counts of robbery with a dangerous weapon, three counts of false imprisonment, and conspiracy to commit robbery with a dangerous weapon. Before trial, however, Compres wrote a letter to Rivas-Membreno. Rivas-Membreno responded to the correspondence from Compres and wrote back:

Oh tambien [sic] man. Look, I'm being offered many years, and I talked to my attorney and he says they don't have evidence on me so for that reason I'm going to trial, if I lose the trial I'm going to get 20 to 30 years and the only way I'll lose is if you with your [woman, wife] accuse me at trial. so look man be very careful don't you two play with my life that way talk to your [woman, wife], because if you do it I swear to you on what's most holy I have to have you m . . . you're older now, you're the father of a family so really think about things if you accuse me they're not going to lower your sentence or are they going to be with you all the time remember that my people are bosses in prison. it's not a threat it's a warning. think about it man it's better if we continue to be friends, and if I win and I get out I'm going to help you with whatever I can. I already did it the first time but you talked and that's why I'm here I let you get away with it the first time but not again man.

so that's it man, take care and don't forget to talk to God so everything comes out okay for us. . . . (alterations in original).²

In light of Rivas-Membreno's correspondence to Compres, the State secured a second indictment changing Rivas-Membreno with inducing false testimony, witness intimidation, solicitation of witness intimidation, and obstruction of justice.

At Rivas-Membreno's trial, Detective Scott Sube ("Detective Sube"), who worked in the Electronic and Technical Surveillance Unit of the Montgomery County Police Department, testified as an expert in cell tower mapping. Detective Sube used cell phone data associated with the cell phone number belonging to Rivas-Membreno to plot the approximate locations of calls made and received by Rivas-Membreno between the hours of 8:30 p.m. and 3:00 a.m. on September 29 and 30, 2013. Detective Sube's analysis showed that nine calls were made either to or from Rivas-Membreno's cell phone in close proximity to the scene of the robbery on the night the robbery took place.

After a jury trial in the Circuit Court for Montgomery County, Rivas-Membreno was convicted of two counts of robbery with a deadly weapon, three counts of false imprisonment, one count of conspiracy to commit robbery with a deadly weapon, solicitation of witness intimidation, witness intimidation, obstruction of justice, and inducing false testimony. On August 21, 2014, Rivas-Membreno was sentenced to a total of thirty years' imprisonment. This timely appeal followed. Additional facts will be discussed as necessitated by the issues presented.

DISCUSSION

Rivas-Membreno presents two allegations of error. First, Rivas-Membreno argues that it was error for the trial court to admit evidence relied upon by Detective Sube in hisanalysis of Rivas-Membreno's cell phone data. In response, the State maintains that Rivas-Membreno waived his objection to the evidence because he failed to object when the contents of the evidence were admitted prior to, and after, his initial objection. We agree with the State that Rivas-Membreno waived his objection to the admission of the cell phone data. Secondly, Rivas-Membreno asserts that his sentences for solicitation of witness intimidation, witness intimidation, and inducing false testimony should merge with the greater offense of obstruction of justice. We reject Rivas-Membreno's merger argument because the relevant Maryland Code sections clearly provide that a defendant may receive cumulative sentences for the conduct at issue here. Finally, Rivas-Membreno also appears to challenge the sufficiency of the evidence relating to his conviction for solicitation of witness intimidation. We hold that Rivas-Membreno's challenge to the sufficiency of the evidence is not properly preserved for appellate review. For the reasons that follow, we affirm the judgment of the Circuit Court for Montgomery County.

I. Rivas-Membreno Waived His Objection to the Location of Cell Phone Towers.

Rivas-Membreno first argues that it was error for the circuit court to admit evidence regarding the location of cell phone towers admitted through the testimony of Detective Sube. The State avers that Rivas-Membreno waived this objection because his objection was not timely, and he failed to object when the substance of the evidence was admitted without challenge at subsequent points throughout the trial. Accordingly, the State argues that Rivas-Membreno's challenge to the admission of the location of the cell phone towers is not preserved for appellate review. We agree with the State.

At trial, the State called Detective Sube as an expert to testify about cell tower mapping. Detective Sube explained generally how cell phones and cell towers work. Then, through Detective Sube's testimony, the State admitted a disc containing cell phone records for Rivas-Membreno's phone. The cell phone records were accompanied by an affidavit attesting to the records' authenticity. Rivas-Membreno did not object to the admission of the cell phone records. Accordingly, the cell phone records were admitted into evidence and marked as State's exhibit 35.

In total, the cell phone records contained in exhibit 35 consisted of a comprehensive digital spreadsheet documenting 858 activities that occurred on Rivas-Membreno's phone between 11:23 a.m. on September 20, 2013, and 6:02 a.m. on October 18, 2013. The 26 data points in the columns of that spreadsheet contained, amongst many other things, the time the call was made, the phone number the call was connected to, the Location Area Code ("LAC"), and the Cellular Identification ("CID") corresponding with the cell towers from which the phone calls commenced and concluded,³ and the geographic coordinates of the cell towers from which each phone call commenced and concluded.

The State sought to admit a second disc containing information upon which Detective Sube would rely in forming his expert opinion. The second disc was admitted as exhibit 37.Exhibit 37 was a digital spreadsheet that contained the LACs, CIDs, geographic coordinates, addresses, and other technical data relating to all of T-Mobile's cell phone towers in the northeast region. Rivas-Membreno objected to the admission of the second disc, and the following colloquy ensued:

[THE PROSECUTOR]: Your Honor, I'd ask that State's 37 enter as a full exhibit at this time.

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