Stone v. State

1

DAVID EMMONS STONE v. STATE OF MARYLAND

No. 1282-2021

Court of Special Appeals of Maryland

June 14, 2022

Circuit Court for Cecil County Case No. C-07-CR-18-001360

Zic Ripken, Meredith, Timothy E. (Senior Judge, Specially Assigned), JJ.

OPINION ^[*]

RIPKEN, J.

David Stone ("Stone") was charged by way of an indictment with ten counts of burglary, larceny, conspiracy, and related offenses occurring "on or about August 1, 2018, through October 24, 2018." He was tried before a jury in the Circuit Court for Cecil County. The court granted Stone's motion for judgment of acquittal on the conspiracy counts and the jury acquitted Stone of second-degree burglary, malicious destruction of property, and theft of property valued at over $100, 000. The basis of that theft count was unauthorized control as defined in Maryland Criminal Law Article ("CL") § 7-104. The jury convicted Stone of one count of theft of property valued between $25, 000 and $100, 000. The basis of that theft count was continuing course of conduct as defined in CL § 7-103(f). The jury was unable to reach a verdict on fourth-degree burglary. The State entered a nolle prosequi as to that count. Stone appealed to this Court, which vacated the conviction based on trial court error and remanded to the circuit court for a new trial. Stone filed a pre-trial motion to dismiss the charge contending that a retrial would violate double jeopardy principles. The circuit court denied his motion. Stone now appeals to this Court. For the reasons to follow, we hold that the circuit court did not err in denying the motion.

FACTUAL AND PROCEDURAL BACKGROUND

We set forth the underlying facts in Stone v. State, No 1192 Sept. Term 2019, slip op. at 2-6 (Md. Ct. Spec. App. Feb. 11, 2021), Stone's first appeal to this Court:

Danilo Cabahug, a former owner of a sports memorabilia store, kept a large supply of collectible sports cards and comic books at Whalen's Storage in Elkton, Maryland. He discovered that the memorabilia had been stolen on October 24, 2018 when he visited the storage facility for the first time since July 2018. His rental unit, #16, had a large circular hole cut out from where the lock had been, which enabled anyone to enter the unit.

Upon discovering the theft, Mr. Cabahug reported it to the Elkton Police Department. Officer Andrew Tuer would later testify that while investigating the break-in, he noticed that another unit, #35, was left open. Mr. Cabahug identified some of the items in unit #35 as being his property.

Officer Tuer and Cabahug also looked into locker #15, which was an open locker next to Cabahug's and found more of his stolen property. Locker #15 belonged to [Stone]. Officer Tuer had been patrolling the unit weeks earlier on October 3, 2018, and found that locker, #15, had been "forced open." [Stone] met the police at the storage facility and told Officer Tuer that he was abandoning the locker because of the burglary. Later, on October 15, 2018, Officer Tuer was patrolling another Elkton storage facility, Cecil Mini Storage, when he encountered [Stone] with a cart of baseball cards "in booklets" as used by "collectors."

On October 29, 2018, locker #9 at the Whalen facility was the subject of a police search warrant. Cabahug identified several items found in the storage locker as being his stolen property. This locker belonged to Miguel Small. Later that day, the police executed a search warrant on the locker that [Stone] had rented at the Cecil Mini Storage facility and Cabahug identified more items as being stolen from his storage locker.

Officer Joshua Leffew interviewed [Stone] after executing the search warrant on [Stone's] locker. [Stone] said he moved his items to the Cecil Mini Storage because of the break-in at his Whalen locker. [Stone] claimed that he saw a box of baseball cards when moving his items out of the Whalen facility and took them. Leffew asked [Stone] to unlock his phone so he could look at it and [Stone] refused, saying that he would "shoot himself in the foot" if he did so and that he "didn't want to incriminate himself."

[Stone] and Small were indicted for various counts of burglary, malicious destruction of property and theft. At trial, the State called co-defendant Small as a witness pursuant to a plea agreement. Small testified that he rented locker #9 at the Whalen facility and that he did not know that the items found in his locker were stolen. He had seen Cabahug's locker left open for at least a month with many people rummaging through it. He did not see [Stone] in that locker, but he did at one point help [Stone] move 60 to 100 containers of baseball cards and comic books from [Stone's] locker at Whalen's to a vehicle "in exchange for drugs."

Cabahug testified that his property found in [Stone's] possession was worth "over $50, 000" and that his total loss was "more than $1.5 million." The evidence showed that [] he had previously told officers different amounts for his total loss: $7, 880 to the responding officer and later $250, 000 to Officer Leffew.

[Stone] testified that he had only rented his locker at Whalen's for a month in September 2018 before moving out because of it being burglarized repeatedly. He denied stealing any of Cabahug's property or burglarizing his locker. He further testified that the baseball cards and comic books found in his Cecil Mini Storage locker were all his and that he had collected those since he was a child. Neither [Stone] nor Cabahug had receipts for any of the stolen items.

The jury was instructed to consider five charges in the indictment: Second-Degree Burglary, Fourth-Degree Burglary, Malicious Destruction of Property, Felony Theft ($100, 000 or more) and Theft in a Continuing Course of Conduct ($100, 000 or more). On five counts of conspiracy to commit these same charges with Miguel Small, [Stone] was granted a judgment of acquittal by the court.^[1]

The judge instructed the jury concerning the theft charges:

Then lastly there is a charge of theft, two different versions. The first version or definition is theft, unauthorized control. The defendant, Mr. Stone, is charged with the crime of theft. In order to convict the defendant of theft, the State must prove that the defendant willfully or knowingly obtained or exerted unauthorized control over the property of the owner, and that the defendant had the purpose of depriving the owner of the property, and the value of the property was over $100, 000.

After the court instructed the jury on the definitions of "property," "owner," "deprive," "exert control," and "value" from Maryland Pattern Jury Instruction 4:32, it instructed the jury on a second theft charge:

Mr. Stone is also charged with the crime of theft greater than $100, 000 pursuant to a continuing course of conduct. In order to convict the defendant under this charge of theft pursuant to a continuing course of conduct, the State must prove all the elements of theft. Course of conduct means a persistent pattern composed of a series of acts over time that shows a continuity of purpose.

Defense counsel objected to the instruction, insisting that the State had to pick one or the other of the theft charges. The prosecutor disagreed, arguing that "it's a question of fact for the jury to determine if it was one act of theft or if it was pursuant to a continuing course." Defense counsel suggested in his closing argument that the State had failed to prove that his client committed the theft but spent the bulk of his argument insisting that "there is no indication whatsoever that this property was worth over $100, 000."

During deliberations, the jury sent a note to the trial judge asking whether the course of conduct count would "also include the element of value of $100, 000?" While both the State and defense counsel believed that the question should be answered in the affirmative, the court disagreed, stating that "value is not an element of the offense. The value only deals with the punishment."

In response to the jury's question, the court answered, "No, see attached verdict sheet for Question 5." In response, defense counsel told the court, "Well, I would note that both the State and the defense are objecting." The new verdict sheet sent to the jury in response to their question read in the pertinent part:

How do you find with regard to Theft - unauthorized control? Not Guilty ____ Guilty ____

If your answer to 4 is not guilty go to question 5. If your answer to question 4 is guilty contact the bailiff.

5. How do you find with regard to Theft? Not Guilty ____ Guilty ____

If your verdict is guilty please also answer the following:

____ theft - having a value of at least $1, 500 but less than $25, 000

____ theft - having a value of at least $25, 000 but less than $100, 000

____ theft - having a value of $100, 000 or more

The jury acquitted [Stone] of Second-Degree Burglary, Malicious Destruction of Property and Theft- unauthorized control. The jury was unable to reach a verdict on the Fourth-Degree Burglary and convicted [Stone] of the Theft in a Continuing Course of Conduct ($25, 000-$100, 000). The State entered the Fourth-Degree Burglary charge nolle prosequi. [Stone] was sentenced to eight years of incarceration and ordered to pay restitution in the amount of $50, 000. (footnotes omitted).

Stone appealed his conviction to this Court asserting, in part that the court erred in giving the instruction on a lesser-included theft offense that was not requested by either party.^[2] We agreed and held that the court's allowing the jury to consider a lesser-included charge in the absence of either party's request mandated vacating Stone's conviction and remanding for a new trial. Specifically, we held that though a defendant charged with a greater offense may be...