Wallace v. State

1

VINCENT WALLACE v. STATE OF MARYLAND

No. 1458-2023

Court of Special Appeals of Maryland

December 12, 2024

UNREPORTED ^[*]

Circuit Court for Cecil County Case No. C-07-CR-23-000152.

Berger, Nazarian, Raker, Irma S. (Senior Judge, Specially Assigned), JJ.

OPINION

Raker J Appellant was convicted in the Circuit Court for Cecil County of first-degree assault, reckless endangerment, and second-degree assault for actions on or about January 30, 2023, and second-degree assault for his actions on or about January 28, 2023. Appellant presents the following questions for our review which we have rephrased as follows^[1]:

1. Was the evidence sufficient to support the trial judge's verdict of guilty of Counts 1-3, and Count 5?

2. If preserved, did the trial court err in admitting the body camera footage as an excited utterance?

We shall hold that the evidence is sufficient to support appellant's convictions, and that the trial court did not err in admitting into evidence Ms. AB's^[2] statements on the body camera footage.

I.

Appellant was indicted by the Grand Jury for Cecil County of first-degree assault on or about January 30, 2023 (Count 1), second-degree assault on or about January 30, 2023 (Count 2), reckless endangerment on or about January 30, 2023 (Count 3), second-degree assault on January 29, 2023 (Count 4), second-degree assault on or about January 28, 2023 (Count 5); and malicious destruction of property in a scheme valued over $1,000 (Count 6). He waived his right to a jury trial and proceeded to trial before the bench. Appellant was convicted of first-degree assault, second-degree assault and reckless endangerment on or about January 30, and a second count of second-degree assault on or about January 28.

The court imposed a term of incarceration for first-degree assault of twenty-five years, ten years suspended, five years' probation, and for second-degree assault, ten years, five years suspended, five years' probation to be served consecutively. For sentencing purposes, the court merged reckless endangerment and the first count of second-degree assault with first-degree assault.

We glean the following facts from the trial. Ms. AB testified that over the weekend of January 28, 2023, Vincent Wallace, appellant, assaulted her multiple times. On January 30, 2023, she called 911 and officers went to her home. Upon arrival, Officer Michael McGonigle heard "screaming from a female." When the officers entered the home, they found appellant standing over Ms. AB yelling repeatedly, "what's wrong with you?" The officer took appellant into the hallway, separating the two. Officer McGonigle observed bruising on Ms. AB's neck, lower jaw, and arms. Corporal Nussle asked appellant about the events that evening. After observing the bruising on Ms. AB's neck, Officer McGonigle arrested appellant.

In the apartment, Officer McGonigle's body worn camera recorded his conversation with Ms. AB and, in addition, he took photos of her bruises. Ms. AB told the officer she had been "kicked, punched, and choked" all weekend and that she had tried to get away, but appellant caught her and brought her back. She told him that appellant attempted to strangle her, causing her to see spots and that she was unable to breathe. Ms. AB cried, shouted, and stammered throughout her responses and required many words of assurance from the officer.

At a bench trial, the State called Corporal Nussle, Officer McGonigal, and Ms. AB as witnesses. Corporal Nussle described his encounter with appellant at the apartment. The State offered the footage of Officer McGonigle's body worn camera. Defense counsel objected to the video as inadmissible hearsay, arguing that Ms. AB's statements did not qualify as any exception to the hearsay rule and did not qualify as an excited utterance as the statements were not made under the stress of excitement. The court overruled the objections, finding that Ms. AB "remains distressed" and that many cases support the concept that "statements made even hours after an incident . . . could fall within the umbrella of excited utterance."

Ms. AB explained that appellant punched, kicked, and choked her throughout the weekend of January 28, 2023. The worst incident occurred after leaving a Home Depot on January 30. She testified that appellant struck her in the face, causing a nosebleed and knocking her unconscious. Later that evening, Ms. AB called 911 and the officers arrived.

Following the State's case, appellant moved for Judgment of Acquittal, arguing that the State failed to present sufficient evidence to prove that an assault occurred on January 28. The court denied the motion, stating that its "recollection of the testimony offered by Ms. AB as to the 28^th would be sufficient to survive a judgment of acquittal. She was, I think clear in her testimony about an incident occurring on the 28^th."

The defense rested, presenting no evidence. The court imposed sentence and this timely appeal followed.

II.

Before this Court, appellant argues that the evidence was insufficient to support the conviction for second-degree assault on or about January 28, 2023 (Count 5). He argues that there was insufficient evidence to establish that an assault occurred prior to the visit at Home Depot. Second, he argues that the two alleged crimes, one on January 28 and one on January 30, were not separate and distinct crimes and that the State failed to prove that an assault occurred on January 28. As to the second evidentiary question, the admissibility vel non of the body camera footage, appellant argues that the evidence was inadmissible hearsay. Appellant maintains that the body camera footage was not admissible as an excited utterance because the statements made by Ms. AB were not made under the stress of the event and even if they were, they were not based on any possible assault that had occurred on January 28, as opposed to an assault on January 30.

The State presents its argument in a different format than appellant. Instead of isolating the events, the State maintains that the evidence was sufficient to show that appellant committed first-degree assault, and that there was sufficient evidence to support the trial judge's verdict of guilty of multiple assaults. As to the specific date in the indictment of January 28, the State points out that the date indicated for a crime in a charging document "does not tie the hands of the prosecutor," or the judge in finding that the criminal act occurred on that precise date. In other words, according to the State, the State is not limited to the specific date in the charging document in proving the criminal event or in evaluating the sufficiency of the evidence. The State presents an alternative argument --- that on January 30, the evidence was sufficient to establish the crimes of first-degree assault and second-degree assault. Moreover, any argument that the events were a single, continuous event is waived because appellant failed to make that argument below. The State argues that Ms. AB's testimony and the photographs were sufficient to support a series of multiple, distinct assaults, occurring over the course of the weekend of January 28-30, 2023.

As to the hearsay argument, the State presents two arguments: 1) preservation, and 2) the statements to the police qualified as excited utterances because Ms. AB demonstrated behaviors of one in distress and acting under the stress of an event in her home. As to the preservation issue, the State asserts that because appellant failed to provide the transcript of the statements on the body camera footage, appellant did not preserve this issue for our review. See Maryland Rule 8-411(a)(3). As to the single event argument, the State maintains that appellant did not argue below that the assaults over the course of the weekend of January 28 were a single, continuous event and therefore, that argument is not preserved for appellate review.

III.

We consider first whether the evidence was sufficient to support the judgment of conviction for Counts 1-3 and Count 5. We review the sufficiency of the evidence to determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979); Scriber v. State, 236 Md.App. 332, 344 (2018). As a reviewing court, we do not judge the credibility of witnesses or resolve conflicts in the evidence. Scriber, 236 Md.App. at 344. The question before us is "not whether the evidence should have or probably would have persuaded the majority of fact finders but only whether it possibly could have persuaded any rational fact finder." Id. (emphasis in original).

In analyzing the sufficiency of the evidence at a bench trial, we review both the law and the evidence but will not set aside the judgment unless clearly erroneous. Rule 8-131(c). "We review sufficiency of the evidence to determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." White v. State, 217 Md.App. 709, 713 (2014) (internal quotation marks and citation omitted).

In Maryland, the crime of second-degree assault is statutory. See Md. Code (2002, 2021 Repl. Vol.), § 3-203 of the Criminal Law Article ("Crim. Law").^[3] Assault is defined as "the crimes of assault, battery, and assault and battery." Crim. Law § 3-201(b). Second-degree assault has three alternative forms: (1) intentionally frightening the victim; (2) battering the victim; and (3) attempting to batter the victim. See Jones v. State, 440 Md. 450, 455 (2014). Here, ...