Vincent v. State

571 A.2d 874, 82 Md. App. 344, 1990 Md. App. LEXIS 54
CourtCourt of Special Appeals of Maryland
DecidedApril 2, 1990
DocketNo. 1147
StatusPublished
Cited by3 cases

This text of 571 A.2d 874 (Vincent v. State) is published on Counsel Stack Legal Research, covering Court of Special Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Vincent v. State, 571 A.2d 874, 82 Md. App. 344, 1990 Md. App. LEXIS 54 (Md. Ct. App. 1990).

Opinion

BLOOM, Judge.

Kevin Vincent a/k/a Kevin Davis, the appellant, was indicted for assault with intent to murder, assault with intent to disable, malicious shooting with intent to disable, use of a handgun in the commission of a crime of violence, assault and battery. A jury in the Circuit Court for Prince George’s County convicted him of malicious shooting with intent to disable (Third Count), use of a handgun in the commission of a crime of violence (Fourth Count), and battery (Fifth Count). Merging the battery conviction into the malicious shooting conviction, the court imposed a sentence of ten years for the shooting and a concurrent twenty year sentence for the handgun violation, but suspended all but thirteen years. Appellant now contends that:

1. The court erred in admitting evidence of other crimes.

[346]*3462. The evidence was insufficient to sustain his conviction of use of a handgun in the commission of a crime of violence; and

3. The court committed plain error in instructing the jury.

We see no basis for reversal on either of the first two issues. On the third issue, however, we agree that the court’s instruction to the jury relative to the handgun charge constituted error that was prejudicial to appellant, and we shall reverse that conviction.

Facts

The facts are relatively simple. Joe Reltherford, the victim, was a pimp. A prostitute named Angela Young worked for him. Young left Reltherford and “got with” appellant, but later returned to Reltherford. Appellant retained Young’s car. When Reltherford went to retrieve the car, appellant shot him in the arm and side.

I

Appellant complains that the court permitted the State to introduce evidence to prove that appellant had prostitutes working for him. He contends that such evidence of crime other than the one with which he was charged was inadmissible and prejudicial. Other crimes evidence may be admitted if relevant to a material issue (not merely to show that the accused is a bad person with a propensity to commit crimes) and if it is reasonably necessary to the State’s case, i.e., if its prejudicial effect is outweighed by its probative value. See State v. Faulkner, 314 Md. 630, 552 A.2d 896 (1989); Harris v. State, 81 Md.App. 247, 567 A.2d 476 (1989); McKinney v. State, 82 Md.App. 111, 570 A.2d 360 (1990).

One well recognized basis for the admission of other crimes evidence is the establishment of motive. Faulkner, 314 Md. at 634, 552 A.2d 896. Here, evidence that Ms. Young, the prostitute, had left one pimp, the victim, for [347]*347another, appellant, and then opted to resume working for the victim, furnished the motive for the shooting. The victim’s appropriation of a source of appellant’s income would be likely to cause resentment and thus provoke a violent reaction. And when we weigh the prejudice to appellant that might result from the introduction of evidence of pandering or receiving the earnings of a prostitute against the need of the State to prove a motive for the violent crimes with which appellant was charged, we find no error or abuse of discretion in admitting the other crimes evidence.

II

Based upon the fact that he was acquitted of assault with intent to murder and convicted only of shooting with intent to disable, which is not a predicate crime of violence under the handgun statute, appellant argues that the evidence was insufficient to prove the crime of use of a handgun in the commission of a crime of violence.

This issue was not preserved for appellate review. Appellant moved for judgment of acquittal at the end of the State’s case and then renewed his motion despite the fact that he presented no evidence. At the time the motion was first made, the only reason for acquittal that was stated with any degree of particularity, as required by Md.Rule 4-324(a), was the inadequacy of the evidence to show an intent to murder (First Count). As to the other charges, including the handgun charge (Fourth Count), defense counsel merely made “a general motion for judgment of acquittal,” stating no grounds. That was not adequate to preserve a sufficiency issue. See State v. Lyles, 308 Md. 129, 135-36, 517 A.2d 761 (1986). When the motion was renewed, counsel added an assertion that the location of the bullet wounds would not support an inference of an intent to disable (Third Count). As to the handgun charge (Fourth Count), counsel posited that if the court were to grant the motions on both the First and Third counts, the Fourth Count would have to fall as well because there would then [348]*348be no predicate crime of violence. The issue that appellant now seeks to raise — that proof of the offense of shooting with intent to disable is insufficient to support the handgun conviction — was never raised below; it may not be raised for the first time on appeal. Md.Rule 8-131.

Ill

During its instructions to the jury, the court stated: Lastly, ladies and gentlemen, the defendant is charged with use of a handgun in the commission of a crime of violence. Use of a handgun in the commission of a crime of violence.

In order for the State to prove to you beyond a reasonable doubt that the defendant is guilty of that offense, the State must prove to you again two essential elements.

One, that the defendant committed a crime of violence.

And two, that the defendant used a handgun in the commission of that crime of violence.

Now, first of all, let me say this to you. The defendant is charged with two crimes of violence: assault with intent to murder and malicious shooting with intent to disable. Either of those two is a crime of violence____ So, the question is: Did the defendant commit either or both of those two, and if so, did he use a handgun in doing so?

Now, the only question left in your mind is: What do we mean by a handgun under this statute? A handgun, ladies and gentlemen, is a pistol, a revolver, or any other firearm capable of being concealed on or about the person and which is designed to fire a bullet by the explosion of gunpowder. A handgun is a pistol, revolver, or any other firearm capable of being concealed on or about the body or about the person, and which is designed to fire a bullet by the explosion of gunpowder.

So, what is the question that is asked of you with respect to that offense? It is question number four, ladies and gentlemen, and it reads as follows:

[349]*349Is the defendant guilty or not guilty of use of a handgun in the commission of a crime of violence? And then I have, parenthetically, did the defendant commit assault with the intent to murder, and I tell you see question one, because you have already answered that; or malicious shooting with the intent to disable, and I tell you to see question two, because you have answered that already; and, if so as to one or both, did he use a handgun in doing so?

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Related

State v. Brady
903 A.2d 870 (Court of Appeals of Maryland, 2006)
State v. McAdams
594 A.2d 1273 (Supreme Court of New Hampshire, 1991)
State v. Vincent
582 A.2d 1220 (Court of Appeals of Maryland, 1990)

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Bluebook (online)
571 A.2d 874, 82 Md. App. 344, 1990 Md. App. LEXIS 54, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vincent-v-state-mdctspecapp-1990.