Howling v. State Abongnelah v. State
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Opinion
Mashour Howling v. State of Maryland, No. 35, September Term, 2021; Funiba Abongnelah v. State of Maryland, No. 36, September Term, 2021. Opinion by Hotten, J.
CRIMINAL LAW – STATUTORY INTERPRETATION – PROHIBITED POSSESSION OF FIREARM AND AMMUNITION
The United States Supreme Court in Rehaif v. United States, 588 U.S. ___,139 S. Ct. 2191 (2019) interpreted 18 U.S.C. § 922(g), a federal statute prohibiting possession of a firearm, to require proof of the defendant’s knowledge of possessing a firearm and proof of the defendant’s knowledge of status as a person prohibited from possessing a firearm. The Court of Appeals declined to apply the reasoning of Rehaif to its interpretation of Md. Code Ann., Public Safety (“Pub. Safety”) § 5-133 and § 5-133.1 because the plain text, legislative history, and relevant case law did not require the State to prove the defendant’s knowledge of status as a person prohibited from possessing a firearm and ammunition.
CRIMINAL LAW – JURY INSTRUCTION – PROHIBITED POSSESSION OF FIREARM
A circuit court has broad discretion when delivering a jury instruction, but abuses its discretion by delivering an instruction that is not a correct statement of law. Cost v. State, 417 Md. 360, 368, 10 A.3d 184, 189 (2010). The Court held that the circuit court did not abuse its discretion by declining to give a jury instruction stating that the State must prove knowledge of prohibited status pursuant to Pub. Safety § 5-133. The circuit court correctly propounded the Maryland Pattern Jury Instruction, which provides that the State must only prove, with respect to the mens rea element of Public Safety § 5-133, the defendant’s knowledge of possession of a firearm.
CRIMINAL LAW – SUFFICIENCY OF EVIDENCE – PROHIBITED POSSESSION OF FIREARM
The State satisfies its burden of evidentiary sufficiency when “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” State v. McGagh, 472 Md. 168, 194, 244 A.3d 1117, 1131–32 (2021) (citations omitted) (emphasis in original). The Court held that the State provided sufficient evidence to convict the defendant of possession of a prohibited firearm pursuant to Pub. Safety § 5-133. The State entered into evidence a jail call recording in which the defendant admitted to possessing a firearm on his person at the time of arrest. The defendant also stipulated to a prior felony conviction, which prohibited possession of a firearm pursuant to Pub. Safety § 5-133. The State did not need to provide evidence that the defendant also knew that his prior conviction prohibited possession of a firearm pursuant to Pub. Safety § 5-133. Circuit Court for Montgomery County IN THE COURT OF APPEALS Case No. 135898C OF MARYLAND Circuit Court for Montgomery County Case No. 135936C Nos. 35 & 36 Argued: February 3, 2022 September Term, 2021 __________________________________
MASHOUR HOWLING v. STATE OF MARYLAND __________________________________
FUNIBA ABONGNELAH v. STATE OF MARYLAND __________________________________
*Getty, C.J., *McDonald, Watts, Hotten, Booth, Biran, Battaglia, Lynne A. (Senior Judge, Specially Assigned),
JJ. __________________________________
Opinion by Hotten, J. __________________________________
Filed: April 28, 2022
*Getty, C.J., and McDonald, J., now Senior Judges, participated in the hearing and conference of these cases while active Pursuant to Maryland Uniform Electronic Legal Materials Act members of this Court; after being recalled (§§ 10-1601 et seq. of the State Government Article) this document is authentic.
2022-04-28 14:48-04:00 pursuant to Maryland Constitution, Article IV, Section 3A, they also participated in the decision and adoption of this opinion. Suzanne C. Johnson, Clerk “There is wide latitude in the lawmakers to declare an offense and to exclude
elements of knowledge . . . from its definition.” Lambert v. California, 355 U.S. 225, 228,
78 S. Ct. 240, 242 (1957). We consider whether the General Assembly intended to exclude
the element of knowledge of a person’s status as a person prohibited from possessing a
regulated firearm and ammunition pursuant to Md. Code Ann., Public Safety (2018 Repl.
Vol.) (“Pub. Safety”) § 5-133 and § 5-133.1. This opinion consolidates two separate cases
that collectively concern the possession of a prohibited firearm and ammunition by
disqualified persons.
The defendants in each case, Mr. Mashour E. Howling (“Petitioner Howling”) and
Mr. Funiba T. Abongnelah (“Petitioner Abongnelah”), possessed a firearm at the time of
arrest, while disqualified from doing so. Both cases proceeded separately to jury trials
before the Circuit Court for Montgomery County. At varying points in the proceedings,
each Petitioner requested that the respective circuit court adopt the reasoning of Rehaif v.
United States, 588 U.S. ___,139 S. Ct. 2191 (2019), where the United States Supreme
Court held that the federal statute 18 U.S.C. § 922(g) required proof of knowledge of
possession of a firearm and proof of knowledge of the defendant’s status as a person prohibited from possessing a firearm.1 Id. at ___, 139 S. Ct. at 2200. Petitioners requested
that the circuit court give a jury instruction incorporating the reasoning of Rehaif. 2
The circuit court declined to give the requested jury instruction in each case. Both
Petitioners moved for judgment of acquittal at the close of the State’s case and renewed
the motion at the close of all evidence. Pertinent to this appeal, Petitioner Abongnelah
argued that the State provided insufficient evidence to establish that he knew he was
prohibited from possessing a firearm. The circuit court denied both motions in each case.
Two separate juries found Petitioners each guilty of possessing a firearm in violation
of Pub. Safety § 5-133. Petitioner Howling was also found guilty of possessing
ammunition in violation of Pub. Safety § 5-133.1. Petitioners separately appealed to the
1 Petitioner Abongnelah appeared to argue at trial that pursuant to Rehaif the State must prove that he knew his prior felony conviction disqualified him from possession. This argument misinterprets the holding of Rehaif. He subsequently amended his argument on appeal, which we address infra at slip op. 36. 2 Only Petitioner Howling’s case concerned possession of prohibited ammunition pursuant to Pub. Safety § 5-133.1. The State argues that Petitioner Howling failed to preserve the argument with respect to Pub. Safety § 5-133.1 because Petitioner Howling requested and received a jury instruction that did not include knowledge of status as an element of the crime. Ordinarily, the issue with respect to Pub. Safety § 5-133.1 would be unpreserved pursuant to Md. Rule 8-131(a). Given the close connection between Pub. Safety § 5-133.1 and Pub. Safety § 5-133, and the desire to provide guidance to lower courts that will frequently address the concurrent issue of possession of a firearm and ammunition, we exercise our discretion to reach the merits of whether Pub. Safety § 5- 133.1 requires proof of knowledge of prohibited status. Jones v. State, 379 Md. 704, 713, 843 A.2d 778, 783 (2004) (“Thus, under [Md. Rule 8-131(a)], an appellate court has discretion to excuse a waiver or procedural default and to consider an issue even though it was not properly raised or preserved by a party[]”); see Crown Oil and Wax Co. of Delaware v.
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Mashour Howling v. State of Maryland, No. 35, September Term, 2021; Funiba Abongnelah v. State of Maryland, No. 36, September Term, 2021. Opinion by Hotten, J.
CRIMINAL LAW – STATUTORY INTERPRETATION – PROHIBITED POSSESSION OF FIREARM AND AMMUNITION
The United States Supreme Court in Rehaif v. United States, 588 U.S. ___,139 S. Ct. 2191 (2019) interpreted 18 U.S.C. § 922(g), a federal statute prohibiting possession of a firearm, to require proof of the defendant’s knowledge of possessing a firearm and proof of the defendant’s knowledge of status as a person prohibited from possessing a firearm. The Court of Appeals declined to apply the reasoning of Rehaif to its interpretation of Md. Code Ann., Public Safety (“Pub. Safety”) § 5-133 and § 5-133.1 because the plain text, legislative history, and relevant case law did not require the State to prove the defendant’s knowledge of status as a person prohibited from possessing a firearm and ammunition.
CRIMINAL LAW – JURY INSTRUCTION – PROHIBITED POSSESSION OF FIREARM
A circuit court has broad discretion when delivering a jury instruction, but abuses its discretion by delivering an instruction that is not a correct statement of law. Cost v. State, 417 Md. 360, 368, 10 A.3d 184, 189 (2010). The Court held that the circuit court did not abuse its discretion by declining to give a jury instruction stating that the State must prove knowledge of prohibited status pursuant to Pub. Safety § 5-133. The circuit court correctly propounded the Maryland Pattern Jury Instruction, which provides that the State must only prove, with respect to the mens rea element of Public Safety § 5-133, the defendant’s knowledge of possession of a firearm.
CRIMINAL LAW – SUFFICIENCY OF EVIDENCE – PROHIBITED POSSESSION OF FIREARM
The State satisfies its burden of evidentiary sufficiency when “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” State v. McGagh, 472 Md. 168, 194, 244 A.3d 1117, 1131–32 (2021) (citations omitted) (emphasis in original). The Court held that the State provided sufficient evidence to convict the defendant of possession of a prohibited firearm pursuant to Pub. Safety § 5-133. The State entered into evidence a jail call recording in which the defendant admitted to possessing a firearm on his person at the time of arrest. The defendant also stipulated to a prior felony conviction, which prohibited possession of a firearm pursuant to Pub. Safety § 5-133. The State did not need to provide evidence that the defendant also knew that his prior conviction prohibited possession of a firearm pursuant to Pub. Safety § 5-133. Circuit Court for Montgomery County IN THE COURT OF APPEALS Case No. 135898C OF MARYLAND Circuit Court for Montgomery County Case No. 135936C Nos. 35 & 36 Argued: February 3, 2022 September Term, 2021 __________________________________
MASHOUR HOWLING v. STATE OF MARYLAND __________________________________
FUNIBA ABONGNELAH v. STATE OF MARYLAND __________________________________
*Getty, C.J., *McDonald, Watts, Hotten, Booth, Biran, Battaglia, Lynne A. (Senior Judge, Specially Assigned),
JJ. __________________________________
Opinion by Hotten, J. __________________________________
Filed: April 28, 2022
*Getty, C.J., and McDonald, J., now Senior Judges, participated in the hearing and conference of these cases while active Pursuant to Maryland Uniform Electronic Legal Materials Act members of this Court; after being recalled (§§ 10-1601 et seq. of the State Government Article) this document is authentic.
2022-04-28 14:48-04:00 pursuant to Maryland Constitution, Article IV, Section 3A, they also participated in the decision and adoption of this opinion. Suzanne C. Johnson, Clerk “There is wide latitude in the lawmakers to declare an offense and to exclude
elements of knowledge . . . from its definition.” Lambert v. California, 355 U.S. 225, 228,
78 S. Ct. 240, 242 (1957). We consider whether the General Assembly intended to exclude
the element of knowledge of a person’s status as a person prohibited from possessing a
regulated firearm and ammunition pursuant to Md. Code Ann., Public Safety (2018 Repl.
Vol.) (“Pub. Safety”) § 5-133 and § 5-133.1. This opinion consolidates two separate cases
that collectively concern the possession of a prohibited firearm and ammunition by
disqualified persons.
The defendants in each case, Mr. Mashour E. Howling (“Petitioner Howling”) and
Mr. Funiba T. Abongnelah (“Petitioner Abongnelah”), possessed a firearm at the time of
arrest, while disqualified from doing so. Both cases proceeded separately to jury trials
before the Circuit Court for Montgomery County. At varying points in the proceedings,
each Petitioner requested that the respective circuit court adopt the reasoning of Rehaif v.
United States, 588 U.S. ___,139 S. Ct. 2191 (2019), where the United States Supreme
Court held that the federal statute 18 U.S.C. § 922(g) required proof of knowledge of
possession of a firearm and proof of knowledge of the defendant’s status as a person prohibited from possessing a firearm.1 Id. at ___, 139 S. Ct. at 2200. Petitioners requested
that the circuit court give a jury instruction incorporating the reasoning of Rehaif. 2
The circuit court declined to give the requested jury instruction in each case. Both
Petitioners moved for judgment of acquittal at the close of the State’s case and renewed
the motion at the close of all evidence. Pertinent to this appeal, Petitioner Abongnelah
argued that the State provided insufficient evidence to establish that he knew he was
prohibited from possessing a firearm. The circuit court denied both motions in each case.
Two separate juries found Petitioners each guilty of possessing a firearm in violation
of Pub. Safety § 5-133. Petitioner Howling was also found guilty of possessing
ammunition in violation of Pub. Safety § 5-133.1. Petitioners separately appealed to the
1 Petitioner Abongnelah appeared to argue at trial that pursuant to Rehaif the State must prove that he knew his prior felony conviction disqualified him from possession. This argument misinterprets the holding of Rehaif. He subsequently amended his argument on appeal, which we address infra at slip op. 36. 2 Only Petitioner Howling’s case concerned possession of prohibited ammunition pursuant to Pub. Safety § 5-133.1. The State argues that Petitioner Howling failed to preserve the argument with respect to Pub. Safety § 5-133.1 because Petitioner Howling requested and received a jury instruction that did not include knowledge of status as an element of the crime. Ordinarily, the issue with respect to Pub. Safety § 5-133.1 would be unpreserved pursuant to Md. Rule 8-131(a). Given the close connection between Pub. Safety § 5-133.1 and Pub. Safety § 5-133, and the desire to provide guidance to lower courts that will frequently address the concurrent issue of possession of a firearm and ammunition, we exercise our discretion to reach the merits of whether Pub. Safety § 5- 133.1 requires proof of knowledge of prohibited status. Jones v. State, 379 Md. 704, 713, 843 A.2d 778, 783 (2004) (“Thus, under [Md. Rule 8-131(a)], an appellate court has discretion to excuse a waiver or procedural default and to consider an issue even though it was not properly raised or preserved by a party[]”); see Crown Oil and Wax Co. of Delaware v. Glen Const. Co. of Virginia, Inc., 320 Md. 546, 561, 578 A.2d 1184, 1191 (1990) (“Even if the successor argument were a new issue, raised for the first time on appeal, this Court has discretion under [Md.] Rule 8-131(a) to consider it, and we exercise that discretion to consider the ‘issue’ in this case.”). 2 Court of Special Appeals, which affirmed in separate unpublished opinions. Abongnelah
v. State, No. 2561, Sept. Term, 2019, 2021 WL 1943262 (Md. Ct. Spec. App. May 11,
2021); Howling v. State, No. 2087, Sept. Term, 2019, 2021 WL 402519 (Md. Ct. Spec.
App. Feb. 4, 2021). The Court of Special Appeals declined to adopt the reasoning of Rehaif
in either case, and concluded that the State must prove, with respect to the mens rea
element, only knowledge of possession of a regulated firearm pursuant to Pub. Safety § 5-
133 (in both cases) and knowledge of possession of ammunition pursuant to Pub. Safety §
5-133.1 (in Petitioner Howling’s case). Accordingly, the intermediate appellate court held
that the circuit court did not abuse its discretion in declining to give Petitioners’ requested
jury instructions. The court also held in Petitioner Abongnelah’s case that there was
sufficient evidence to establish knowledge of possession of a regulated firearm.
Petitioners asked this Court to interpret Pub. Safety § 5-133 and § 5-133.1 to require
knowledge of possession of a firearm and knowledge of status as a prohibited person. We
granted certiorari on September 29, 2021 in each case, 476 Md. 258, 259 A.3d 797 (2021),
to address the following questions presented:
1. In a question of first impression, did the [circuit] court err by giving a jury instruction that omitted a scienter requirement for the offenses charged, contrary to the holding of Rehaif v. United States, [588 U.S. ____,] 139 S. Ct. 2191 (2019), on the presumptions in law in the equivalent Federal Statute, the Rule of Lenity, and this Court’s decisions in Dawkins v. State, 313 Md. 638[, 547 A.2d 1041] (1988) and Chow v. State, 393 Md. 431[, 903 A.2d 388] (2006)?
2. Under the facts of [Petitioner Howling’s] case, in which no evidence was adduced that [Petitioner Howling] was previously notified by government authorities that he was prohibited from possessing a regulated firearm in Maryland, did the [circuit] court err in giving the pre-Rehaif pattern jury instructions lacking scienter requirements?
3 [3.] In a matter of first impression, did [the Court of Special Appeals] err by holding that the evidence was sufficient to convict Petitioner [Abongnelah] of illegally possessing a regulated firearm where the State failed to prove he had knowledge of his prohibited status - i.e., that he was a convicted felon - because that result was inconsistent with the [United States] Supreme Court’s interpretation of the analogous Federal statute in Rehaif v. United States, [588 U.S. ____,] 139 S. Ct. 2191 (2019), and was at odds with this Court’s precedent?
[4.] Did [the Court of Special Appeals] err by upholding the [circuit] court’s refusal to instruct the jury that the State was required to prove that Petitioner [Abongnelah] had knowledge of his prohibited status?
[5.] Was the knowledge issue raised [by Petitioner Abongnelah] adequately preserved where both trial and appellate counsel argued that Rehaif required knowledge of prohibited status and appellate counsel clarified in [Petitioner Abongnelah]’s Reply Brief [before the Court of Special Appeals] that prohibited status meant Petitioner [Abongnelah]’s status as a felon?
We answer the questions presented in the negative, and shall affirm the judgments
of the Court of Special Appeals.
FACTS AND PROCEDURAL BACKGROUND
Underlying Incidents
A. Petitioner Howling
On March 20, 2019, Corporal Brian Rumsey of the Maryland National Capital Park
and Planning Police Department was on a lunch break at a shopping center near Layhill
Road in Silver Spring, Maryland. Corporal Rumsey observed two men in the shopping
center parking lot “checking their surroundings, constantly looking around.” Corporal
Rumsey entered a nearby liquor store on the suspicion of a potential robbery. He noticed
one of the two men at the counter and detected the smell of marijuana.
4 Corporal Rumsey followed the two men, who crossed Layhill Road and entered the
passenger side of a parked truck in a nearby parking lot. Corporal Rumsey “flagged down”
Officer Sean McKinney of the Montgomery County Police Department (“MCPD”) in a
marked cruiser and notified Officer McKinney of potential criminal activity. Officer
McKinney approached the parked truck and detected a “strong odor of marijuana”
emanating from the vehicle and/or its passengers. One of the men told Officer McKinney
that they were waiting for their friend, later identified as Petitioner Howling, who was
getting a haircut at the nearby barbershop.
Law enforcement searched the truck3 and found a rental agreement in Petitioner
Howling’s name, a loaded Glock semiautomatic handgun, two magazines of ammunition
for the handgun, and approximately $4,100 in cash. Two officers located Petitioner
Howling in the barbershop and arrested him.
During a police interview with Detective Tomasz Machon of the MCPD, Special
Investigation Division, Petitioner Howling explained that he lived in Pennsylvania but had
traveled to Montgomery County, where his mother resides, for a doctor’s appointment. His
two friends, who initially drew the attention of Corporal Rumsey, wanted to accompany
him on the trip. Petitioner Howling told Detective Machon that the handgun was registered
to him in Pennsylvania, and he did not realize the handgun was in the car “until on the way
3 Officer Rumsey testified during the suppression hearing that he received consent to search the truck. The suppression court did not reach the issue of consent, but found that the odor of marijuana provided probable cause to search the vehicle. Petitioner Howling did not challenge the decision of the suppression court on appeal.
5 down[.]” Petitioner Howling also informed Detective Machon that he was convicted of
simple assault in Pennsylvania.4 When the interviewing officer advised that Maryland law
prohibited possession of a firearm following conviction of simple assault in Pennsylvania,
Petitioner Howling claimed that he did not intentionally bring the handgun into Maryland.
The State charged Petitioner Howling with possession of a firearm by a prohibited person
pursuant to Pub. Safety § 5-133(c), transportation of a loaded handgun in a vehicle pursuant
to Md. Code Ann., Criminal Law (“Crim. Law”) § 4-203(a)(1)(v), and possession of
ammunition by a prohibited person pursuant to Pub. Safety § 5-133.1.
B. Petitioner Abongnelah
In April 2019, Detective Machon began monitoring an Instagram account with the
handle “gg_mikey”, believed to be used by Petitioner Abongnelah. Prince George’s
County law enforcement had been monitoring the account since Petitioner Abongnelah’s
release from prison in 2018, and tipped off Detective Machon that Petitioner Abongnelah
may be involved in prohibited firearms activity within Montgomery County.
On June 5, 2019, at 1:53 a.m., a video was posted to the Instagram account that
depicted a person shooting a Kel-Tec handgun at a distant car with flashing red and blue
lights. A voice in the video stated, “I’ma shoot the police.” Based on the video, other
photos and videos posted to the Instagram account, and Petitioner Abongnelah’s MVA
photo, Detective Machon concluded that Petitioner Abongnelah was the person firing the
4 Petitioner Howling was convicted of simple assault in 2002, a misdemeanor in Pennsylvania. Petitioner Howling was sentenced to eighteen months of probation, twenty hours of community service, and ordered to pay a fine and other costs. Pennsylvania law permits the possession of firearms by individuals convicted of simple assault. 6 weapon in the video. Detective Machon also identified the serial number of the firearm in
the video and discovered that the firearm had been reported stolen in August 2018.
On the same day as the Instagram posting, MCPD officers applied for a search
warrant for Petitioner Abongnelah’s apartment. In the interim, undercover officers
surveilled the outside of his apartment building. The officers witnessed Petitioner
Abongnelah leave his apartment and enter a vehicle with a driver and two passengers.
Officers followed the vehicle to a shopping center, where Sergeant Charlie Bullock
testified that he believed he observed Petitioner Abongnelah make a drug exchange outside
of a bank. When MCPD stopped Petitioner Abongnelah’s vehicle, Petitioner Abongnelah
fled. Officers caught Petitioner Abongnelah and arrested him. Officers searched his
person, and found a loaded firearm in his pocket. The parties stipulated that at the time of
his arrest, Petitioner Abongnelah was under twenty-one and a convicted felon.
The State charged Petitioner Abongnelah with possession of a firearm by a
convicted felon in violation of Pub. Safety § 5-133(c) and possession of a firearm by a
person under the age of twenty-one pursuant to Pub. Safety § 5-133(d).
Circuit Court Proceedings
Petitioner Howling moved to suppress evidence seized from the pick-up truck.
Following a suppression hearing on September 19, 2019, the circuit court denied Petitioner
Howling’s motion in a memorandum opinion and order. The case proceeded to a jury trial
on October 15, 2019. The State presented witness testimony and exhibits that demonstrated
Petitioner Howling was in possession of the firearm at the time of the arrest. In a recorded
7 interview between Petitioner Howling and Detective Machon, Petitioner Howling admitted
to possessing the firearm:
[Detective] Machon: Okay. Well, what’s the deal with that gun?
[Petitioner] Howling: I didn’t realize it was there until on the way down, I had money on me for stuff I had to pick up and stuff for tomorrow. And I went to put that in the compartment, the gun. It’s my gun. It’s registered to me.
***
[Detective] Machon: So in Maryland, . . . as far as the law goes, you can’t possess a firearm if you’re (unintelligible) and certain charges, you’ve been charged with in the past. I see you initially had an assault.
[Petitioner] Howling: . . . I didn’t know [the firearm] was in there. I wouldn’t have brought it.
[Detective] Machon: Okay. It’s not anybody else’s in that car. It’s yours and you had possession of it.
[Petitioner] Howling: That’s mine and my gun is in there.
The State then admitted evidence demonstrating that ammunition for the firearm was
recovered from the vehicle.
At the close of the State’s case, counsel for Petitioner Howling moved for judgment
of acquittal, arguing that “[Petitioner] Howling was[ not] aware that he could[ not] have a
firearm and ammunition in the [S]tate of Maryland based on his prohibited conviction.”
The State opposed the motion by arguing that “[k]nowledge of the law is not an element
of the offenses charged.” The circuit court agreed with the State and denied the motion:
“With respect to the argument of scienter of knowledge about the gun laws in Maryland,
8 the statute that prohibits a certain person[] from having a firearm is a strict liability offense.
It does not require that intent be proven.”
Counsel for Petitioner Howling renewed the motion for judgment for acquittal by
arguing that the circuit court should adopt the reasoning of the United States Supreme
Court in Rehaif and interpret Pub. Safety § 5-133(c) to require proof of knowledge that the
defendant “belongs to the relevant category of persons barred from possessing a firearm.”
The circuit court denied the motion.
At the same time, Counsel for Petitioner Howling requested the circuit court provide
a jury instruction incorporating the reasoning of Rehaif, arguing that the State must prove
that Petitioner Howling “knew he was prohibited from having this firearm.” The circuit
court denied the request:
[A] [circuit] court that uses a jury instruction other than a pattern jury instruction when there is a pattern jury instruction that directly addresses the elements at issue, does so at the [circuit] court’s own peril.
The appellate court in Annapolis has repeatedly in many cases warned trial judges about essentially going off base and giving instructions that are not the approved Maryland pattern jury instructions. There are some occasions upon which there is an issue that is not addressed in a Maryland pattern jury instruction but this isn’t that case. I think this case does what is appropriate in this case and that is put the issue before the jury and the jury can decide whether the elements have been proven.
The circuit court delivered a near-identical version of Maryland Pattern Jury
Instruction (“MPJI Cr.”) § 4:35.6:
The defendant is charged with possessing a regulated firearm after having been convicted of a crime that disqualified him from possessing a regulated firearm. In order to convict[] the defendant, the State must prove that the defendant knowingly possessed a regulated firearm and that defendant was previously convicted of a crime that disqualified him from possessing a
9 regulated firearm. The State and the defense agree and stipulate that the gun in this case is a regulated firearm.
The circuit court also delivered a jury instruction “[m]odified from MPJI Cr. §
[4:35.6][,]” and requested by Petitioner Howling, for possession of ammunition by a
disqualified person pursuant to Pub. Safety § 5-133.1:
The defendant is charged with possession of ammunition having been convicted of a crime that disqualifies him from possessing ammunition. In order to convict the defendant the State must prove that the defendant knowingly possessed ammunition and that the defendant was previously convicted of a crime that disqualified him from possessing ammunition.
The jury convicted Petitioner Howling of possession of a firearm by a prohibited
person, possession of ammunition by a prohibited person, and transporting a loaded a
handgun in a vehicle. The circuit court sentenced Petitioner Howling to a suspended term
of nine years’ imprisonment, and three years of unsupervised probation.
Petitioner Abongnelah moved to suppress the firearm recovered from his person
because it was obtained during a search incident to a warrantless arrest. The circuit court
denied the motion and found probable cause to believe that Petitioner Abongnelah was in
possession of a firearm as a convicted felon.5 The case proceeded to a jury trial on October
30 and 31, 2019.
5 The Court of Special Appeals affirmed the denial of the motion to suppress. Petitioner Abongnelah did not raise the issue on appeal before this Court. 10 The State introduced a jail call recording between Petitioner Abongnelah and an
unidentified speaker. Petitioner Abongnelah admitted to possessing a firearm at the time
of arrest:
Unidentified speaker: I’m nervous[, t]hat’s all.
[Petitioner] Abongnelah: I’m good. I’m going to be all right. . . . It’s just a gun charge. You know what I’m saying? It’s not even a violent charge. I ain’t, I ain’t rob nobody or nothing, but I just got caught with one of my, one of my dogs, man.
I’m just protecting myself, man. . . . I’m black, I may be dead. . . . I’m staying out of the way. . . . I just so happened to get pulled over, and my man got pulled over . . . and I had a gun in my pocket.
[J]ust so you know, . . . these calls is recorded. So you know what I’m saying? Don’t say nothing[.]
(Emphasis added).
The parties stipulated that Petitioner Abongnelah had a prior conviction that
prohibited him from legally possessing a firearm. The circuit court instructed the jury that
“the State and the defendant agree and stipulate that the defendant was previously
convicted of a crime that disqualifies him from possessing a regulated firearm.” The parties
also stipulated to Petitioner Abongnelah’s date of birth, which established that he was
under the age of twenty-one at the time of possession of the firearm on June 5, 2019.
Counsel for Petitioner Abongnelah moved for judgment of acquittal at the close of
the State’s case, and renewed the motion at the close of evidence, arguing that there was
11 insufficient evidence that Petitioner Abongnelah knew his prior conviction prohibited
possession of a firearm:
[Counsel for Petitioner Abongnelah]: [T]he State presented zero evidence that he knew he was part of that prohibited class of people prohibited from possessing a firearm because of a crime of violence. . . . [A]t the end of last term, the [United States] Supreme Court . . . said in relation to the Federal Statute th[at] Congress intended for there to be a knowledge element. That knowledge element goes towards both elements knowing that he possessed the firearm and knowing that you are part of that prohibited class.
[T]here is no evidence that he knew or that he was ever made aware that because of that prior conviction he was prohibited from possessing a firearm.
THE COURT: . . . The law does not require at this time that [Petitioner Abongnelah] was aware that he was a disqualified person in possession of a regulated firearm. So, the State has satisfied its requisite burden with respect to a motion for judgment of acquittal as to the elements of the crime charged.
Counsel for Petitioner Abongnelah requested a jury instruction stating that the State
must prove knowledge of prohibited status, which the circuit court denied. The circuit
court delivered a substantially similar instruction to the one given in Petitioner Howling’s
case.6 Counsel for Petitioner Abongnelah renewed his motion to add an instruction
6 The circuit court also gave a substantially similar instruction for possession of a firearm under the age of twenty-one:
The defendant is charged with possessing a regulated firearm when he was under the age of 21. In order to convict the defendant, the State must prove one, that the defendant knowingly possessed a regulated firearm and two,
(continued …) 12 consistent with Rehaif which “makes knowledge of his being prohibited from having a gun
an element.”
The jury found Petitioner Abongnelah guilty of being a person with a felony
conviction in possession of a firearm in violation of Pub. Safety § 5-133(c) and possession
of a firearm under the age of twenty-one in violation of Pub. Safety § 5-133(d). The circuit
court sentenced Petitioner Abongnelah to eight years of incarceration, with all but the
mandatory five-year minimum suspended for the possession of a regulated firearm with a
felony conviction. The circuit court also placed Petitioner Abongnelah on supervised
probation for five years. For the possession of a regulated firearm while under twenty-one,
the circuit court sentenced Petitioner Abongnelah to five years of incarceration with all but
two years suspended and five years of supervised probation to run concurrently with the
possession of a firearm with a felony conviction.
The Opinions of the Court of Special Appeals
A. The Howling Opinion
The Court of Special Appeals affirmed the decision of the circuit court. The
intermediate appellate court did not find Rehaif “dispositive” because it involved the
interpretation of a federal statute and did not announce a rule of constitutional law that
(. . . continued)
that the defendant was under 21 years of age at the time of that possession. The State and the defendant agree and stipulate that the defendant’s age was under the age of 21 on June 5, 2019.
13 would be binding on the states. Howling, 2021 WL 402519 at *4 (quoting Mata v. United
States, 969 F.3d 91, 93 (2d Cir. 2020)) (“the [United States] Supreme Court ‘was simply
construing a [federal] statute.’”).
After rejecting the application of Rehaif, the court found that its recent decision in
Brice v. State, 225 Md. App. 666, 126 A.3d 246 (2015), was controlling. In Brice, the
court noted that “[t]here is no language in the statute requiring a defendant to know that he
[or she] is disqualified. . . .” Id. at 694, 126 A.3d at 263. Therefore, according to the court,
“to satisfy the mens rea requirement for [Pub. Safety §] 5-133, the State [is] required to
prove only that the defendant knew that he [or she] [is] in possession of a handgun.” Id. at
694, 126 A.3d at 263. Applying the analysis from Brice to the instant case, the court found
that “the State was only required to prove that [Petitioner] Howling knew he was in
possession of a firearm and ammunition, not that [Petitioner] Howling knew his
Pennsylvania conviction disqualified him from possessing a regulated firearm and
ammunition in Maryland.” Howling, 2021 WL 402519 at *6.
The court concluded that Petitioner Howling’s requested jury instructions
predicated on the reasoning of the United States Supreme Court in Rehaif were not correct
statements of Maryland law. The Court of Special Appeals held that the circuit court did
not abuse its discretion by declining to give the requested jury instructions and by giving
the pattern jury instructions instead. Id.
B. The Abongnelah Opinion
The Court of Special Appeals also affirmed the circuit court in Petitioner
Abongnelah’s case. Similar to Petitioner Howling’s case, the intermediate appellate court
14 declined to adopt the reasoning of the United States Supreme Court in Rehaif, which “held
that the government must prove that not only did the defendant knowingly possess a firearm
in violation of [18 U.S.C.] § 922(g) but also that the defendant knew of his status as a
prohibited person under [18 U.S.C.] § 922(g).” Abongnelah, 2021 WL 1943262 at *6
(citation and footnote omitted) (emphasis added). By declining to adopt Rehaif, the court
concluded that “the State only needs to prove that a defendant [knew] they [were] in
possession of a firearm.” Id. at *7.
The court found that the State provided sufficient evidence to establish Petitioner
Abongnelah’s knowledge of possession of a regulated firearm. MCPD officers testified
that a firearm was recovered on Petitioner Abongnelah’s person. Id. A video posted to
Petitioner Abongnelah’s Instagram account indicated that Petitioner Abongnelah shot at
what appeared to be a police vehicle using the same firearm. Id. Finally, in a jail call
recording, Petitioner Abongnelah admitted that he was arrested while possessing a firearm.
Id.
In a Reply Brief submitted to the court, Petitioner Abongnelah argued that the State
must prove that the defendant knew he was a felon at the time of the incident. The court
declined to address this argument because it was not raised in the circuit court or opening
briefs. Id. Assuming arguendo that knowledge of status was required, the court found that
the State met its evidentiary burden because Petitioner Abongnelah stipulated to the fact
that he committed a prior felony, which prohibited him from possessing a firearm pursuant
to Pub. Safety § 5-133(c). Id. at *8.
15 The court rejected Petitioner Abongnelah’s argument that the circuit court erred by
not giving a jury instruction aligned to Rehaif. Id. Since it had already concluded that
Rehaif did not apply to Maryland law, the Court of Special Appeals held that the circuit
court did not err by giving a jury instruction that, with respect to the mens rea element,
only required knowledge of possession of a prohibited firearm pursuant to
Pub. Safety § 5-133(c).
The Contentions of the Parties
Petitioner Howling contends that this Court should adopt the reasoning of the United
States Supreme Court in Rehaif and require that the State prove knowledge of a defendant’s
prohibited status pursuant to Pub. Safety § 5-133 and § 5-133.1. Petitioner Howling notes
that similar to the United States Supreme Court in Rehaif, this Court also presumes a mens
rea element of knowledge when interpreting criminal statutes. Applying this presumption
to the instant case would “advance society at large and separate ‘wrongful from innocent
acts.’” (Citation omitted).
Petitioner Howling argues that recognizing a scienter requirement of knowledge of
prohibited status would be consistent with this Court’s decisions in Chow v. State, 393 Md.
431, 903 A.2d 388 (2006), and Dawkins v. State, 313 Md. 638, 547 A.2d 1041 (1988).
According to Petitioner Howling, Chow held that the defendant “must know that the
activity they are engaging in is illegal.” (Citation omitted). Petitioner Howling also reads
Dawkins for the proposition that mens rea, including knowledge of illegal status, should
be adjudicated by a jury. Petitioner Howling asserts that the need for an element of
16 knowledge is particularly acute “when multiple states have differing statutes[]”
criminalizing possession.
Petitioner Howling asks this Court to discount the Court of Special Appeals’
reasoning in Brice, because the legal analysis was “very abbreviated[]” and “the facts were
so negative against the Appellant Brice[.]” Instead, Petitioner Howling contends that this
Court should rely on the reasoning of Lawrence v. State, 475 Md. 384, 257 A.3d 588, 602
(2021), which analyzed whether the General Assembly intended for Crim. Law § 4-203 to
be a strict liability crime, to find that Pub. Safety § 5-133 requires knowledge of prohibited
status. Petitioner Howling argues that unlike Crim. Law § 4-203, Pub. Safety § 5-133 is
modified by the word “knowingly” in Pub. Safety § 5-144, and any ambiguity regarding
the statute should be resolved in favor of the defendant pursuant to the rule of lenity.
Finally, Petitioner Howling asserts arguendo that if this Court does not generally recognize
a knowledge of status requirement pursuant to Pub. Safety § 5-133, the facts in Petitioner
Howling’s particular case supported a jury instruction that specifically recognized the
knowledge requirement.
Similar to Petitioner Howling’s argument, Petitioner Abongnelah contends that
there was insufficient evidence to establish a conviction of an illegal possession of a
firearm because the State failed to prove that Petitioner Abongnelah knew that he belonged
to the category of persons prohibited from possessing a firearm. According to Petitioner
Abongnelah, the text of Pub. Safety § 5-133 imposes the requirement of knowledge of
prohibited status by reference to Pub. Safety § 5-144, which includes the word
17 “knowingly[.]” The legislative history of the Public Safety Article, as explained by this
Court in Jones v. State, 420 Md. 437, 23 A.3d 880 (2011), confirms this interpretation of
the plain text.
Petitioner Abongnelah argues that even if Rehaif is not binding on this Court, it
offers “a highly persuasive guide to reading” Pub. Safety § 5-133 because “the federal and
Maryland statutes are directly analogous” and both the United States Supreme Court and
this Court employ “the same presumption in favor of requiring mens rea. . . .” This
presumption in favor of mens rea should, according to Petitioner Abongnelah, prompt this
Court to recognize an element of knowledge of prohibited status even if it also concludes
that Pub. Safety § 5-144 does not apply.
Petitioner Abongnelah asserts that the Court of Special Appeals incorrectly found
arguendo that the parties’ stipulation of Petitioner Abongnelah’s prior felony conviction
would have satisfied the element of knowledge of prohibited status. According to
Petitioner Abongnelah, the stipulation did not establish knowledge of prohibited status at
the time of offense. Petitioner Abongnelah also contends that the court erred by finding
that the knowledge issue was unpreserved because defense counsel for Petitioner
Abongnelah used language, both at trial, and in the opening brief to the Court of Special
Appeals that argued “knowledge of [prohibited] status” was an element of Pub. Safety § 5-
133.
Finally, like Petitioner Howling, Petitioner Abongnelah asserts that the circuit court
erred by not giving a jury instruction stating that knowledge of prohibited status was an
element of Pub. Safety § 5-133.
18 C. The State
In both cases, the State contends that the circuit court acted within its discretion in
refusing to depart from the Maryland Pattern Jury Instructions, because the requested jury
instructions by Petitioners were incorrect statements of law.
As a threshold issue, the State argues that Petitioner Howling’s argument with
respect to Pub. Safety § 5-133.1 and Petitioner Abongnelah’s argument with respect to
evidentiary sufficiency were unpreserved. According to the State, Petitioner Howling only
requested a modified jury instruction for possession of a firearm by a prohibited person
and did not request a modified jury instruction for possession of ammunition by a
prohibited person pursuant to Pub. Safety § 5-133.1. The State notes that Petitioner
Howling requested a jury instruction pursuant to Pub. Safety § 5-133.1 that omitted scienter
language, which the circuit court used as the jury instruction. Petitioner Abongnelah’s
legal sufficiency argument was waived, according to the State, because Petitioner
Abongnelah presented an argument on appeal that differed from the argument at trial. The
State asserts that Petitioner Abongnelah’s trial counsel presented an ignorance of the law
argument, whereas appellate counsel argued, for the first time in a Reply Brief before the
Court of Special Appeals, that the State must prove knowledge of prohibited status.
Assuming this Court reaches the merits of Petitioner Abongnelah’s legal sufficiency
argument, the State argues that Pub. Safety § 5-133 does not require proof of knowledge
of prohibited status. The State also agrees with the Court of Special Appeals that even if
Pub. Safety § 5-133 requires proof of knowledge, the stipulation of a prior conviction
provided sufficient evidence.
19 The State argues that Rehaif does not apply to Pub. Safety § 5-133 because it
construes a federal statute and does not announce a new principle of constitutional law.
The State also identifies material differences between the state and federal statutes which
warrant distinct interpretations by this Court. The federal statute at issue in Rehaif
expressly stated that the word “knowingly” modifies the defendant’s status, whereas Pub.
Safety § 5-133 and § 5-133.1 do not. Therefore, according to the State, the circuit court
did not abuse its discretion in either of Petitioners’ cases by denying a jury instruction that
incorporated the reasoning of Rehaif.
DISCUSSION
Standard of Review
A. Jury Instruction
A circuit court has broad discretion when determining whether a jury instruction is
warranted by the facts of the case. Carter v. State, 366 Md. 574, 584, 785 A.2d 348, 353
(2001). We accordingly review the decision not to provide a jury instruction for abuse of
discretion. Cost v. State, 417 Md. 360, 368, 10 A.3d 184, 189 (2010). We assess whether
a circuit court abused its discretion in denying a request for a particular jury instruction by
determining “(1) whether the requested instruction was a correct statement of the law; (2)
whether it was applicable under the facts of the case; and (3) whether it was fairly covered
[elsewhere or] in the instructions actually given.” Stabb v. State, 423 Md. 454, 465, 31
A.3d 922, 929 (2011) (citations omitted); see also Md. Rule 4-325(c). Whether a jury
instruction is a correct statement of law is subject to a de novo standard of review. Seley-
Radtke v. Hosmane, 450 Md. 468, 482, 149 A.3d 573, 581 (2016).
20 B. Sufficiency of Evidence
We review sufficiency of evidence by asking whether “any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.” State v.
McGagh, 472 Md. 168, 194, 244 A.3d 1117, 1131–32 (2021) (citations omitted) (emphasis
in original).
Analysis
A. The holding of Rehaif is not applicable to Pub. Safety § 5-133 and § 5-133.1, and neither section requires proof of knowledge of status.
As a general principle, interpretations of federal statutes are not binding on this
Court’s interpretations of State statutes. Haas v. Lockheed Martin Corp., 396 Md. 469,
481, 914 A.2d 735, 742 (2007); Pope v. State, 284 Md. 309, 320 n.10, 396 A.2d 1054, 1061
n.10 (1979). This principle also applies to the decisions of the United States Supreme
Court, unless the decision relies upon or announces a principle of constitutional law. State
v. Matusky, 343 Md. 467, 490, 682 A.2d 694, 705 (1996).
The United States Supreme Court’s interpretation of 18 U.S.C. § 922(g) neither
relied upon nor announced a principle of constitutional law. The scope of the Court’s
review was limited to ordinary statutory interpretation of “congressional intent.” Rehaif,
588 U.S. at ___, 139 S. Ct. at 2195 (emphasis added); see Staples v. United States, 511
U.S. 600, 605, 114 S. Ct. 1793, 1796–97 (1994) (noting the determination of required
mental state for commission of a federal crime requires “construction of the statute and . . .
inference of the intent of Congress[]”) (citation omitted). Therefore, the Court of Special
21 Appeals correctly concluded, in each of Petitioners’ cases, that the holding of Rehaif does
not bind Maryland courts.
Petitioners argue that even if Rehaif does not bind this Court, it offers highly
persuasive reasoning because the state and federal statutes are analogous, and both this
Court and the United States Supreme Court recognize a presumption of mens rea when
interpreting criminal statutes. We are not persuaded by these arguments and find Rehaif
distinguishable based on our case law and express textual differences between Pub. Safety
§ 5-133 and 18 U.S.C. § 922.7
Similarity between a Maryland and a federal statute is not sufficient justification for
this Court to apply a federal court’s interpretation of a federal statute to a Maryland statute.
“Maryland appellate courts have interpreted state statutes, rules, and constitutional
provisions differently than analogous federal provisions on numerous occasions, even
where the state provision is modeled after its federal counterpart.” Haas, 396 Md. at 482
n.10, 914 A.2d at 742 n.10 (emphasis added).8 “Maryland courts sometimes prefer
interpretations of state statutes varying from similar federal statutes[.]” Id., 914 A.2d at
742 n.10.
7 Petitioner Howling did not expressly argue that the reasoning of Rehaif applies to Pub. Safety § 5-133.1, so we note that our conclusion as to Pub. Safety § 5-133 applies to § 5-133.1 as well. 8 “Put in a more homespun idiom, and paraphrasing a frequent [parental] admonition, ‘[j]ust because [Congress] ran off a cliff doesn’t mean [the General Assembly] has to follow suit.’” Haas, 396 Md. at 482 n.10, 914 A.2d at 742 n.10. 22 In Quality Discount Tires, Inc. v. Firestone Tire & Rubber Co., 282 Md. 7, 12, 382
A.2d 867, 870 (1978), this Court considered whether the legal standard articulated by the
United States Supreme Court with respect to price-fixing under the federal Sherman
Antitrust Act should apply to plaintiffs bringing claims under the analogous Maryland
Antitrust Act. The General Assembly stated that the purpose of the Maryland Antitrust
Act was to “complement the body of federal law,” and that, in construing the Act, the courts
should “be guided by the interpretation given by the federal courts to the various federal
statutes dealing with the same or similar matters.” Id. at 10, 382 A.2d at 869 (quoting Md.
Code Ann., Commercial Law § 11-202(a) (1975, 1977 Cum. Supp.)). This Court
accordingly examined how the United States Supreme Court and the federal circuits have
applied the legal standard under the Sherman Antitrust Act. Id. at 12, 382 A.2d at 870.
Despite the similarities in the statutes, and the General Assembly’s express statutory
directive to turn to federal interpretation for guidance, this Court recognized that it was
“not bound” by the opinions of federal courts and concluded that the particular federal legal
standard did not apply to the Maryland Antitrust Act. Id. at 16, 382 A.2d at 872.
Quality Discount Tires demonstrates that this Court need not import federal
interpretations of a statute, even when a federal and state statute share a similar purpose
and legislative history.9 Pub. Safety § 5-133 and 18 U.S.C. § 922(g) may share the same
9 Petitioners suggest that Pub. Safety § 5-133 shares a legislative history with 18 U.S.C. § 922(g). The General Assembly modeled the Maryland Gun Violence Act after the federal Gun Control Act of 1968; therefore, according to Petitioners, Pub. Safety § 5- 133 should be given a construction similar to its federal counterpart, 18 U.S.C. § 922(g).
(continued . . .) 23 purpose to criminalize possession of firearms under certain conditions, but the textual
differences in mens rea language highlight how Congress and the General Assembly
intended to take separate paths in criminalizing possession of regulated firearms.
The federal statute plainly requires the text of 18 U.S.C. § 924, which contains the
word “knowingly[,]” to be read in conjunction with the text of 18 U.S.C. § 922(g). 18
U.S.C. § 924 provides in pertinent part: “Whoever knowingly violates subsection . . . (g) .
. . of section 922 shall be fined as provided in this title, imprisoned not more than 10 years,
or both.” (Emphasis added). 18 U.S.C. § 922(g) provides in pertinent part: “It shall be
unlawful for any person . . . who, being an alien--[] is illegally or unlawfully in the United
States[] . . . to ship or transport in interstate or foreign commerce, or possess in or affecting
commerce, any firearm or ammunition[.] . . .” (Emphasis added).
Reading these sections together, the United States Supreme Court in Rehaif
observed that the word “knowingly” in § 924(a)(2) expressly modifies § 922(g). “And
everyone agrees that the word ‘knowingly’ applies to § 922(g)’s possession element, which
While Pub. Safety § 5-133 fits within a broader statute that shares a legal history with a federal act, nowhere within the specific legislative history of Pub. Safety § 5-133 (or § 5- 133.1) did the General Assembly indicate that Maryland courts should look to federal law or federal cases for guidance. Even if Pub. Safety § 5-133 was at one point directly inherited from 18 U.S.C. § 922(g), the material differences in the plain language of the statutes necessitate different interpretations. Cf. Office of the State Prosecutor v. Judicial Watch, Inc., 356 Md. 118, 138, 737 A.2d 592, 603 (1999) (noting that the persuasiveness of the interpretation of a federal statute depends on its substantive similarity to a corresponding state statute: “Where the purpose and language of a federal statute are substantially the same as that of a later state statute, interpretations of the federal statute are ordinarily persuasive.”) (citation omitted) (emphasis added). 24 is situated after the status element.” Rehaif, 588 U.S. at ___, 139 S. Ct. at 2196. “We see
no basis to interpret ‘knowingly’ as applying to the second § 922(g) element but not the
first.” Id. at ___, 139 S. Ct. at 2196 (citation omitted). “To the contrary, we think that by
specifying that a defendant may be convicted only if he ‘knowingly violates’ § 922(g),
Congress intended to require the Government to establish that the defendant knew he
violated the material elements of § 922(g).” Id. at ___, 139 S. Ct. at 2196.
The United States Supreme Court concluded that Congress intended to criminalize
possession of a firearm when the person knows they are “illegally or unlawfully in the
United States” and “possess[ing] . . . any firearm or ammunition.” 18 U.S.C. § 922(g). 10
The plain text of 18 U.S.C. § 924(a) indicates that the word “knowingly” applies to all of
the elements of 18 U.S.C. § 922(g).
While the plain text of 18 U.S.C. § 924(a) requires knowledge of prohibited status,
the plain text of Pub. Safety § 5-133(b) only requires knowledge of the defendant’s
possession of a firearm.
Pub. Safety § 5-133 provides in pertinent part:
(b) Subject to § 5-133.3 of this subtitle, a person may not possess a regulated firearm if the person:
(1) has been convicted of a disqualifying crime;
(2) has been convicted of a violation classified as a common law crime and received a term of imprisonment of more than 2 years;
10 The United States Supreme Court noted the “statutory text supports the presumption [of scienter].” Rehaif, 588 U.S. at ___, 139 S. Ct. at 2195. The Court defined the presumption of scienter as “a presumption that criminal statutes require the degree of knowledge sufficient to ‘mak[e] a person legally responsible for the consequences of his or her act or omission.’” Id. at ___, 139 S. Ct. at 2195 (citation omitted). 25 ***
(c)(1) A person may not possess a regulated firearm if the person was previously convicted of:
(i) a crime of violence;
(iii) an offense under the laws of another state or the United States that would constitute one of the crimes listed in item (i) . . . of this paragraph if committed in this State.
(2)(i) Subject to paragraph (3) of this subsection, a person who violates this subsection is guilty of a felony and on conviction is subject to imprisonment not for less than 5 years and not exceeding 15 years.
(ii) The court may not suspend any part of the mandatory minimum sentence of 5 years.
(iii) Except as otherwise provided in § 4-305 of the Correctional Services Article, the person is not eligible for parole during the mandatory minimum sentence.
(3) At the time of the commission of the offense, if a period of more than 5 years has elapsed since the person completed serving the sentence for the most recent conviction under paragraph (1)(i) or (ii) of this subsection, including all imprisonment, mandatory supervisor, probation, and parole:
(i) the imposition of the mandatory minimum sentence is within the discretion of the court; and
(ii) the mandatory minimum sentence may not be imposed unless the State’s Attorney notifies the person in writing at least 30 days before trial of the State’s intention to seek the mandatory minimum sentence.
(d)(1) Except as provided in paragraph (2) of this subsection, a person who is under the age of 21 years may not possess a regulated firearm.
26 When interpreting the language of a Maryland statute, the “cardinal rule” of
statutory construction “is to determine what the [General Assembly] intended, and, as we
have so often said, to do that, we turn first to the words used by the [General Assembly],
giving them their ordinary meaning.” Dimensions Health Corp. v. Maryland Ins. Admin.,
374 Md. 1, 17, 821 A.2d 40, 50 (2003). If “no construction or clarification is needed or
permitted . . . a plainly worded statute must be construed without forced or subtle
interpretations designed to extend or limit the scope of its operation.” Id., 821 A.2d at 50
(citations omitted).
The plain text of Pub. Safety § 5-133 omits mens rea language of knowledge. The
statute uses the word “possess”, which this Court has interpreted to require knowledge of
possession. Parker v. State, 402 Md. 372, 407, 936 A.2d 862, 883 (2007) (“A possession
conviction normally requires knowledge of the illicit item. . . . Knowledge of the presence
of an object is normally a prerequisite to exercising dominion and control.”) (citations and
quotation marks omitted). The plain text of Pub. Safety § 5-133.1 similarly omits mens
rea language and uses the word possess.11
11 Pub. Safety § 5-133.1 provides:
(a) In this section, “ammunition” means a cartridge, shell, or any other device containing explosive or incendiary material designed and intended for use in a firearm.
(b) A person may not possess ammunition if the person is prohibited from possessing a regulated firearm under § 5-133 (b) or (c) of this subtitle.
(c) A person who violates this section is guilty of a misdemeanor and on conviction is subject to imprisonment not exceeding 1 year or a fine not exceeding $1,000 or both. 27 In criminalizing the possession of a firearm and ammunition by a disqualified
person, the clear intent of the General Assembly was to require only knowledge of that
possession. Lillian C. Blentlinger, LLC v. Cleanwater Linganore, Inc., 456 Md. 272, 294,
173 A.3d 549, 562 (2017) (“[W]e neither add nor delete words to a clear and unambiguous
statute to give it a meaning not reflected by the words that the General Assembly used or
engage in forced or subtle interpretation in an attempt to extend or limit the statute’s
meaning.”).
This analysis is also consistent with our case law interpreting the mens rea element
of criminal statutes. “[T]he General Assembly has ‘wide latitude’ to dictate the statutory
elements of its criminal enactments.” Lawrence, 475 Md. at 408, 257 A.3d at 602 (citation
omitted). In Lawrence, this Court assessed whether Crim. Law § 4-203(a)(1)(i) established
a strict liability offense of wearing, carrying, or transporting a handgun on or about the
person. Id. at 389, 257 A.3d at 591. After examining the plain text, legislative history, and
relevant case law of the statute, this Court concluded:
[T]he General Assembly exercised its discretion in declining to include language indicating mens rea in [Crim. Law] § 4-203(a)(1)(i). While Mr. Lawrence’s argument in favor of a presumption of mens rea is well-founded, it fails to overcome the significant indicia of legislative intent to the contrary in this case. . . . [T]he text and structure of [Crim. Law] § 4-203 make it clear that the General Assembly did not intend to include ‘knowledge’ as an element of subparagraph (a)(1)(i).
Id. at 412, 257 A.3d at 604–05 (emphasis added).
Unlike Crim. Law § 4-203(a)(1)(i) in Lawrence, in which this Court determined that
the statute lacked an element of knowledge, Maryland appellate courts have repeatedly
recognized that the General Assembly intended to only require the mens rea element of
28 knowledge of possession pursuant to Pub. Safety § 5-133. Parker, 402 Md. at 407, 936
A.2d at 883 (“In order for the evidence supporting the handgun possession conviction to
be sufficient, it must demonstrate either directly or inferentially that Parker exercised ‘some
dominion or control over the prohibited [item]’. . . . Knowledge of the presence of an
object is normally a prerequisite to exercising dominion and control.”) (alteration in
original) (citation and other marks omitted); Hogan v. State, 240 Md. App. 470, 516–17,
205 A.3d 101, 127–28 (2019) (“The mens rea of simple unlawful possession requires only
the defendant’s awareness that he is in actual possession of the item he is not permitted to
possess. The charge of which appellant was convicted did require proof of mens rea, but
not the mens rea appellant suggests. Although [Pub. Safety §] 5-133(b) is silent concerning
the mens rea required, the Court of Appeals has held that a ‘possession conviction normally
requires knowledge of the illicit item.’”) (citations omitted) (emphasis added); Brice, 225
Md. App. at 694, 126 A.3d at 263 (“to satisfy the mens rea requirement for a violation of
Section 5-133, the State was required to prove only that [the] defendant knew that he [or
she] was in possession of a handgun[]”); McNeal v. State, 200 Md. App. 510, 524, 28 A.3d
88, 96 (2011) (holding that the circuit court correctly instructed the jury “when it said: ‘the
State has the obligation to prove . . . knowledge on the part of’ [the defendant] that ‘he was
in possession of a handgun[]’”).
None of the Maryland cases interpreting Pub. Safety § 5-133 have extended the
knowledge requirement to prohibited status. While Petitioners cite Dawkins v. State, 313
Md. 638, 547 A.2d 1041 (1988), and Chow v. State, 393 Md. 431, 903 A.2d 388 (2006),
for the proposition that Pub. Safety § 5-133 and § 5-133.1 require knowledge of prohibited
29 status, these cases support our conclusion that the plain text of Pub. Safety § 5-133 and
§ 5-133.1 does not.
In Dawkins, this Court acknowledged the presumption of a mens rea element for all
crimes: “[t]here can be no crime, large or small, without an evil mind. . . . It is, therefore,
a principle of our legal system . . . that the essence of the offense is the wrongful intent,
without which it cannot exist.” Id. at 643, 547 A.2d at 1043 (citing 1 Bishop’s Crim. Law,
§ 287 (9th ed. 1923)). The Dawkins Court applied this presumption to Md. Code (1957,
1987 Repl. Vol.), Art. 27, § 287(a) and (d)12 to find that “knowledge” is an element of the
offenses of possession of a controlled dangerous substance and possession of controlled
paraphernalia. Id. at 649, 547 A.2d at 1046.
Similar to the statute at issue in Dawkins, Pub. Safety § 5-133 does not use the word
“knowingly” or “knowledge”. Accordingly, and like the statute only criminalizing
knowing possession in Dawkins, Pub. Safety § 5-133 only criminalizes knowledge of
possession of a regulated firearm by a prohibited person. Dawkins supports our conclusion
12 Art. 27, § 287, provided in pertinent part:
Except as authorized by this subheading, it is unlawful for any person:
(a) To possess or administer to another any controlled dangerous substance, unless such substance was obtained directly, or pursuant to a valid prescription or order from a practitioner, while acting in the course of his [or her] professional practice.
(d) To possess or distribute controlled paraphernalia.
Dawkins, 313 Md. at 640 n.1, 547 A.2d at 1041 n.1.
30 that the mens rea element of knowledge contained in Pub. Safety § 5-133 only applies to
possession.
Chow is distinguishable because the defendant in Chow and Petitioners in the instant
case were charged under different sections of the Public Safety Article, which by their plain
text, require different mens rea elements. In Chow, the defendant was charged under Md.
Code (1957, 1996 Repl. Vol., 2002 Supp.), Art. 27, § 449.13 393 Md. at 434, 903 A.2d at
389. This Court examined the scope of the mens rea element of knowledge pursuant to
Art. 27, § 449:
(f) Knowing participants in sale, rental, etc.—Except as otherwise provided in this section, any dealer or person who knowingly participates in the illegal sale, rental, transfer, purchase, possession, or receipt of a regulated firearm in violation of this subheading shall be guilty of a misdemeanor and upon conviction shall be fined not more than $10,000 or imprisoned for not more than 5 years, or both. Each violation shall be considered a separate offense.
393 Md. at 463, 903 A.2d at 407 (emphasis added).
This Court held that the statute requires that the “actor must know that he or she is
committing an ‘illegal sale.’” Id. at 471, 903 A.2d at 412. Unlike the statute in Pub. Safety
§ 5-133, which omits any “knowledge” language, Art. 27, § 499 plainly subjected a person
who “knowingly participates in the illegal . . . possession . . . of a regulated firearm” to
criminal penalty. (Emphasis added). The Chow Court found the word “knowingly”
unambiguously indicated the intent of the General Assembly to require, pursuant to Art.
27 § 499, proof that the defendant had knowledge of the act of possession of a regulated
13 In 2013, this section was recodified at Pub. Safety § 5-144. 31 firearm and knowledge that such possession of a regulated firearm is illegal. Id. at 473,
903 A.2d at 413.
Unlike the statute in Chow, which used the word “knowingly” before prohibited
status and possession, Pub. Safety § 5-133 neither includes the word “knowingly” nor one
of its variants. While Petitioners are generally correct that this Court, like the United States
Supreme Court, presumes a mens rea element, this presumption cannot override the clear
intent of the General Assembly to attach a mens rea element of knowledge only to
possession pursuant to Pub. Safety § 5-133. Lawrence, 475 Md. at 415, 257 A.3d at 606.
We are also not persuaded by Petitioners’ argument that the word “knowingly” in
Pub. Safety § 5-144 should modify the word “possess” in Pub. Safety § 5-133 in the same
way that “knowingly” in 18 U.S.C. § 924(a)(2) modifies “possess” in 18 U.S.C. § 922(g),
because the plain language of Pub. Safety § 5-144(a) expressly precludes application of its
language to Pub. Safety § 5-133.
Pub. Safety § 5-144 provides:
(a) Except as otherwise provided in this subtitle, a dealer or other person may not:
(1) knowingly participate in the illegal sale, rental, transfer, purchase, possession, or receipt of a regulated firearm in violation of this subtitle; or
(2) knowingly violate § 5-142 of this subtitle.
(b) A person who violates this section is guilty of a misdemeanor and on conviction is subject to imprisonment not exceeding 5 years or a fine not exceeding $10,000 or both.
(c) Each violation of this section is a separate crime.
32 (Emphasis added).
Pub. Safety § 5-144(a) is a “catch-all” provision, which supplies a criminal penalty
for, among other prohibited acts, possession of a firearm, but only when not “otherwise
provided in this subtitle.” Jones, 420 Md. at 450, 23 A.3d at 887 (quoting the substantially
similar predecessor14 to Pub. Safety § 5-144(a))(emphasis added). Pub. Safety § 5-133(c)
is part of the “subtitle” referenced in Pub. Safety § 5-144(a). Pub. Safety § 5-133(c) also
provides the specific penalty for possession, so by its plain language, the general “catch-
all” provision pursuant to Pub. Safety § 5-144(a) does not apply to Pub. Safety § 5-133.
See Massey v. Sec’y, Dept. of Pub. Safety and Corr. Servs., 389 Md. 496, 511 n.4, 886 A.2d
585, 594 n.4 (2005) (“The question is one of legislative intent, and we have long followed
the rule that, when there is a conflict between a general statute and one dealing specifically
with the issue at hand, the specific statute controls.”) (citation omitted).15 Petitioners’
application of the word “knowingly” contained in Pub. Safety § 5-144 to Pub. Safety § 5-
133 would necessarily ignore the clause, “[e]xcept as otherwise provided in this subtitle[,]”
thereby impermissibly rendering the clause nugatory. Whiting-Turner Contracting Co. v.
Fitzpatrick, 366 Md. 295, 303, 783 A.2d 667, 671 (2001) (noting statutes must be read to
14 The Jones Court was interpreting Pub. Safety § 5-143 (2003), which was renumbered as Pub. Safety § 5-144 in 2013. 15 Notably, Pub. Safety § 5-133(d) does not provide a specific penalty provision for possession of a regulated firearm by a person under the age of twenty-one. The absence of a specific penalty provision indicates that the “catch-all” language pursuant to Pub. Safety § 5-144(a) would apply. We need not address this particular issue because Petitioner Abongnelah did not challenge the sufficiency of evidence supporting his conviction pursuant to Pub. Safety § 5-133(d).
33 avoid rendering “any portion, meaningless, surplusage, superfluous or nugatory[]”)
(citation omitted).
This interpretation of the specific penalty provision of Pub. Safety § 5-133(c)
precluding application of the “catch-all” penalty provision of Pub. Safety § 5-144 accords
with this Court’s holding in Oglesby v. State, 441 Md. 673, 109 A.3d 1147 (2015). In
Oglesby, this Court stated “[t]here is no ambiguity . . . as to the penalty that the [General
Assembly] has authorized for a conviction [pursuant to Pub. Safety § 5-133].” Id. at 698,
109 A.3d at 1162. “[T]he General Assembly intended to provide for a mandatory minimum
sentence for a violation of [Pub. Safety] § 5-133(c)(1)(ii).” Id., 109 A.3d at 1162. “[T]he
appropriate penalty for a violation of [Pub. Safety] § 5-133(c)(1)(ii) is the penalty the
[General Assembly] prescribed in [Pub. Safety] § 5-133(c)(2).” Id. at 688, 109 A.3d at
1156.
Our plain language analysis conforms with the legislative history of the statute.
Johnson v. State, 467 Md. 362, 375, 225 A.3d 44, 51 (2020) (“[T]he modern tendency of
this Court is to continue the analysis of the statute beyond the plain meaning to examine
‘extrinsic sources of legislative intent’ in order to ‘check [ ] our reading of a statute’s plain
language[.]’ . . .”) (citations omitted).
Previous versions of Pub. Safety § 5-133 have consistently omitted language
indicating a knowledge requirement. By declining to add a requirement of knowledge of
prohibited status over the course of several decades, the General Assembly has acquiesced
in Maryland appellate courts’ interpretation of Pub. Safety § 5-133. See Lawrence, 475
Md. at 414, 257 A.3d at 606; Williams v. State, 292 Md. 201, 210, 438 A.2d 1301, 1305
34 (1981) (“The General Assembly is presumed to be aware of this Court’s interpretation of
its enactments and, if such interpretation is not legislatively overturned, to have acquiesced
in that interpretation.”) (citation omitted).
In 2003, the General Assembly recodified existing public safety laws into the
current Public Safety Article. The Bill File for S.B. 1 (Md. 2003) spans over 2,000 pages
and provides no contrary evidence that the General Assembly intended, or even
contemplated, adding knowledge of prohibited status to Pub. Safety § 5-133. The Public
Safety Article Review Committee examined Pub. Safety § 5-133 and found some
ambiguity in its language with respect to who may constitute a prohibited person, but there
was no mention of whether the mens rea requirement of the statute was ambiguous.
We conclude that Pub. Safety § 5-133 and § 5-133.1 do not require the State to prove
that the defendant had knowledge of prohibited status.
B. The circuit court did not abuse its discretion by declining to give Petitioners’ requested jury instructions.
The circuit court in each case declined to give jury instructions that deviated from
Maryland Pattern Jury Instructions. Maryland Rule 4-32516 governs the procedure that a
court must follow when giving instructions to a jury. Atkins v. State, 421 Md. 434, 443, 26
A.3d 979, 984 (2011). A circuit court “must give a requested jury instruction where ‘(1)
16 Maryland Rule 4-325(c) provides:
The court may, and at the request of any party shall, instruct the jury as to the applicable law and the extent to which the instructions are binding. The court may give its instructions orally or, with the consent of the parties, in writing instead of orally. The court need not grant a requested instruction if the matter is fairly covered by instructions actually given. 35 the instruction is a correct statement of law; (2) the instruction is applicable to the facts of
the case; and (3) the content of the instruction was not fairly covered elsewhere in
instructions actually given.’” Cost, 417 Md. at 368‒69, 10 A.3d at 189 (quoting Dickey v.
State, 404 Md. 187, 197‒98, 946 A.2d 444, 450 (2008)).
The circuit court provided the Maryland Pattern Jury Instruction for prohibited
The defendant is charged with possessing a regulated firearm after having been convicted of a crime that disqualified [him] [her] from possessing a regulated firearm. In order to convict the defendant, the State must prove:
(1) that the defendant knowingly possessed a regulated firearm; and
(2) that the defendant was previously convicted of a crime that disqualified [him] [her] from possessing a regulated firearm.
[The State and the defendant agree and stipulate that the gun in this case is a regulated firearm.] . . .
MPJI Cr. § 4:35.6.
As discussed above, this instruction correctly articulates the elements of Pub.
Safety § 5-133. It requires the State to prove knowledge of possession of a firearm. By
declining to modify the pattern jury instruction with the addition of knowledge of
prohibited status, the circuit court provided the jury with instructions that correctly stated
Maryland law.
C. There was legally sufficient evidence to convict Petitioner Abongnelah pursuant to Pub. Safety § 5-133.
As a threshold issue, we agree with the Court of Special Appeals that Petitioner
Abongnelah’s argument with respect to knowledge of legal status should have been
36 rendered unpreserved for review by presenting a different argument for legal sufficiency
on appeal than at trial. Starr v. State, 405 Md. 293, 301, 951 A.2d 87, 91 (2008); see also
Graham v. State, 325 Md. 398, 416–17, 601 A.2d 131, 140 (1992); State v. Lyles, 308 Md.
129, 135–36, 571 A.2d 761, 764–65 (1986); Muir v. State, 308 Md. 208, 218–19, 517 A.2d
1105, 1110 (1986).
We exercise our discretion pursuant to Md. Rule 8-131(a) to reach the merits of the
legal sufficiency issue to “promote the orderly administration of justice[]” and to prevent
addressing the consolidated cases within this opinion “in a piecemeal fashion, thereby
saving time and expense and accelerating the termination of litigation.” Jones v. State, 379
Md. 704, 715, 843 A.2d 778, 784 (2004).
In assessing the sufficiency of the evidence to sustain a criminal conviction, it is the
responsibility of the appellate court 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.’” Manion, 442 Md. at 430, 112
A.3d at 513 (quoting Taylor v. State, 346 Md. 452, 457, 697 A.2d 462, 464 (1997))
(emphasis in original) (citation omitted). This Court adopted this standard from the United
States Supreme Court case, Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789
(1979).
“[O]ur concern is only whether the verdict was supported by sufficient evidence,
direct or circumstantial, which could fairly convince a trier of fact of the defendant’s guilt
of the offenses charged beyond a reasonable doubt.” Taylor, 346 Md. at 457, 697 A.2d at
465; State v. Albrecht, 336 Md. 475, 487, 649 A.2d 336, 341 (1994) (“[I]t is neither our
37 duty nor our role to assess the credibility of the witnesses who testified nor to weigh the
evidence presented. Rather, we shall only review that evidence which supported the State’s
case in order to determine whether any rational trier of fact could have convicted the
defendant of the crimes charged.”) (emphasis in original).
The State provided sufficient evidence that Petitioner Abongnelah knew that he
possessed a firearm. In a recorded jail call, Petitioner Abongnelah admitted that he
possessed a firearm at the time of arrest: “I just so happened to get pulled over, and my
man got pulled over . . . and I had a gun in my pocket.” (Emphasis added). Petitioner
Abongnelah also stipulated to his prior felony conviction that prohibits possession of a
firearm pursuant to Pub. Safety § 5-133(b). Therefore, we hold that there was legally
sufficient evidence to convict Petitioner Abongnelah.
CONCLUSION
For the reasons previously expressed, we affirm the judgments of the Court of
Special Appeals.
IN NO. 35, JUDGMENT OF THE COURT OF SPECIAL APPEALS IS AFFIRMED. COSTS TO BE PAID BY PETITIONER.
IN NO. 36, JUDGMENT OF THE COURT OF SPECIAL APPEALS IS AFFIRMED. COSTS TO BE PAID BY PETITIONER.
Related
Cite This Page — Counsel Stack
274 A.3d 1124, 478 Md. 472, Counsel Stack Legal Research, https://law.counselstack.com/opinion/howling-v-state-abongnelah-v-state-md-2022.