PRYOR v. STATE

r different officers . . .; (4) the extent to which the subsequent statement differed from any previous statements . . .; (5) the apparent intellectual and emotional state of the suspect. Harper, 162 Md.App. at 86-87, 873 A.2d 395 (quotations marks and citation omitted).

Here, during his interview at the police station, appellant waived his Miranda rights and gave a statement. That interview lasted forty minutes. A ten minute break was taken, after which appellant made a second statement, which lasted ten minutes. The entire interview process at the police station lasted around an hour. The brevity of the overall encounter and the brief length of time of the break support the conclusion that the police were not required to re-advise appellant of his Miranda rights after the break. See Tolbert, 381 Md. at 554, 850 A.2d 1192 (re-advisement of Miranda rights not required where two and a half hours passed between advisement of Miranda rights and defendant's incriminating statement); Harper, 162 Md.App. at 87, 873 A2d 395 (re-advisement of Miranda rights not required where two hours passed between advisement of Miranda rights and defendant's interrogation). Additionally, the two statements took place in the same room, the same detectives were present during both statements, the statements apparently did not differ in their general complicity, and there was no apparent change in appellant's intellectual and emotional state between the two statements. Accordingly, we find no error by the trial court in concluding that there was no Miranda violation because the police did not re-advise appellant of his Miranda rights between the two interviews.

II.

Appellant argues that the evidence was not sufficient to support his convictions. He argues that because his two statements and the physical evidence seized in connection with the investigation should have been suppressed, the remainder of the State's case was based on circumstantial evidence which was legally insufficient to support his convictions. As recounted above, however, his motion to suppress was properly denied so both statements were properly admitted at trial along with all the evidence seized in connection with the investigation. Addressing each conviction, we find no merit to his arguments.

When reviewing the sufficiency of the evidence, our task is 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." Taylor v. State, 346 Md. 452, 457, 697 A.2d 462 (1997) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). "[W]hen evaluating the sufficiency of the evidence in a non-jury trial, the judgment of the trial court will not be set aside on the evidence unless clearly erroneous[.]" State v. Raines, 326 Md. 582, 589, 606 A.2d 265, cert. denied, 506 U.S. 945, 113 S.Ct. 390, 121 L.Ed.2d 299 (1992). See also Khalifa v. State, 382 Md. 400, 418, 855 A.2d 1175 (2004); Md. Rule 8-131(c). This is because we accord deference to the factual findings of the trial judge and give due deference to his ability to observe the demeanor of the witnesses and to assess their credibility. Wiggins v. State, 324 Md. 551, 567, 597 A.2d 1359 (1991), cert. denied 503 U.S. 1007, 112 S.Ct. 1765, 118 L.Ed.2d 427 (1992); Bryant v. State, 142 Md.App. 604, 622, 791 A.2d 161, cert. denied, 369 Md. 179, 798 A.2d 552 (2002).

As with direct evidence, circumstantial evidence will sustain a conviction when all the facts taken together do not require that the fact-finder to resort to speculation or mere conjecture. Taylor, 346 Md. at 458, 697 A.2d 462. "Where it is reasonable for a trier of fact to make an inference, we must let them do so, as the question is not whether the [trier of fact] could have made other inferences from the evidence or even refused to draw any inference, but whether the inference [it] did make was supported by the evidence." State v. Suddith, 379 Md. 425, 447, 842 A.2d 716 (2004) (quotation marks and citation omitted) (brackets in Suddith).

A fact-finder is free to believe part of a witness's testimony, disbelieve other parts of a witness's testimony, or to completely discount a witness's testimony. Muir v. State, 64 Md.App. 648, 654, 498 A.2d 666 (1985). Contradictions in testimony go to the weight of the testimony and credibility of the evidence, rather than its sufficiency, and we do not weigh the evidence or judge the credibility of the witnesses, as that is the responsibility of the trier of fact. See Longshore v. State, 399 Md. 486, 499-500, 924 A.2d 1129 (2007); State v. Stanley, 351 Md. 733, 750, 720 A.2d 323 (1998) (citing Binnie v. State, 321 Md. 572, 580, 583 A.2d 1037 (1991)).

At appellant's trial, several witnesses testified for the State, including several police officers and firefighters, Ms. Alman, her daughter Breanna, and Breanna's boyfriend, Andrew Lee. Appellant did not take the stand and called no witnesses on his behalf. Viewing the evidence in the light most favorable to the State, the following was established.

Appellant and Ms. Alman began dating in 2004, and he moved into her townhouse in September 2006. Ms. Alman's daughter lived in the townhouse at all times while appellant lived there. In October 2007, Ms. Alman asked appellant to leave and he did. Appellant wanted to work things out; Ms. Alman did not.

Appellant admitted in his recorded statement to the police on November 21, 2007, that he set fire to Ms. Alman's house. He stated that he decided to set fire to the house either the night before or the morning of the fire. He told the police that on the morning of the fire he went to a gas station and bought a gallon of gasoline. He then drove to Ms. Alman's house and entered the house through the kitchen door, unlocking the door with his keys. He poured the gasoline "on multiple areas" on the first floor, lit the gasoline on fire, and then left the house. When appellant set fire to the house, Breanna and Andrew Lee were asleep in Breanna's upstairs bedroom, and shortly after setting the fire, neighbors saw smoke billowing out of every front window of the townhouse. The police were called.

While waiting for the police, neighbors pulled Lee out of a second-story window. His body was completely covered in and he was spitting smoke residue. He was taken to a hospital, treated, and released. Firefighters rescued Breanna just inside the front door. She was not breathing, nor did she have a pulse. She was transported to the Bayview Burn Center, where she was largely unconscious for six weeks. She was in the hospital a total of four months. She suffered third degree burns over 40% of her body and from smoke inhalation. She underwent 14 operations while hospitalized.

Appellant's confession to the police was corroborated by several pieces of physical and testimonial evidence, including: a receipt showing appellant purchased gasoline from a gas station less than two miles from appellant's home an hour before the fire; a neighbor's testimony that she saw appellant leave the area "walking fast" five minutes before the fire was detected; a letter appellant sent from jail to his ex-wife several months after the fire in which he admitted that he put himself in a "situation . . . with the law" because "I let my anger take over and cloud my judgment and I lashed out and did what I did[.]"; testimony from a police office accepted as an expert in fire and arson that all accidental causes of the fire were eliminated during his investigation; and a stipulation by the parties that gasoline was detected on five, first-floor carpet samples taken by the police and on a gym bag recovered from the trunk of appellant's car on November 20, 2007.

We shall add additional facts where necessary.

A. Arson in the first-degree

Appellant argues that while there was sufficient evidence to show that he intentionally set fire to Ms. Alman's house, there was insufficient evidence to show that he acted with malice to sustain his first-degree arson conviction. Appellant argues that to prove malice the State was required to show that he intended to harm a person. Appellant cites DeBettencouH v. State, 48 Md.App. 522, 532, 428 A.2d 479 (1981), in support of his argument. Appellant is wrong.

Section 6-102 of the Md. Code (2002), Crim. Law Art., which defines first-degree arson, provides that a person "may not willfully and maliciously set fire to or burn: (1) a dwelling; or (2) a structure in or on which an individual who is not a participant is present." The statute defines "maliciously" as meaning "acting with intent to harm a person or property." See § 6-101(c) (emphasis added). Thus, contrary to appellant's argument, under the arson statute, one who sets fire to a dwelling need not intend to harm a person.

Appellant directs our attention to a statement in DeBettencouH, 48 Md.App. at 532, 428 A.2d 479, an arson case, where we said that "malice" means the "intentional setting of a dangerous fire with reckless and wanton disregard of the consequences in terms of the danger of bringing harm to others[.]" We note that we also stated in DeBettencouH that malice is to intentionally "set a fire with reckless indifference to the danger toward the persons or property of others." Id. at 530-31, 428 A.2d 479 (emphasis added).

No one disputes that Ms. Alman's townhouse was a structure. A clear reading of the arson statute requires the person to act maliciously, which is defined to include the intent to harm property. A fair reading of our opinion in DeBettencouH does not change the plain meaning of the statute. DeBettencouH clearly stated that malice means acting with reckless disregard toward a person or the property of others. Clearly, appellant's act of setting fire to Ms. Alman's townhouse, an end unit in obvious close proximity to her neighbor, showed malice. Accordingly, we find sufficient evidence to support appellant's first-degree arson conviction.

B. Burglary in the first-degree

Appellant next argues that the State failed to show that he committed a "breaking" into Ms. Alman's house. Appellant admits that he entered Ms. Alman's house but argues that the evidence showed he had permission to do so. He directs our attention to the fact that he had a set of keys to the house and had visited Ms. Alman the weekend before the fire.

Section 6-202(a) Crim. Law Art. provides that a person "may not break and enter the dwelling of another with the intent to commit theft or a crime of violence." The "breaking" element retains its common law meaning. Section 6-201(b). Breaking can be by means of opening a closed but unlocked door. Holland v. State, 154 Md.App. 351, 367, 839 A.2d 806 (2003) (citation omitted). A breaking does not occur, however, when the one who enters has "authority to do so at that particular time." Reagan v. State, 2 Md.App. 262, 268, 234 A.2d 278 (1967) (citation omitted).

Appellant had moved out of Ms. Alman's house about a month before the fire, taking his belongings with him. Appellant had returned to her house the Saturday before the fire to retrieve some of his things, but he called before hand to make sure she was at home. Ms. Alman testified that he did not have permission to enter her house the morning of the fire. That appellant still had keys to the house and had visited Ms. Alman (with her permission) the weekend before the fire does not diminish the fact that he did not have permission to enter her house the morning of the fire. Accordingly, there was sufficient evidence to sustain this conviction.

C. Reckless Endangerment of Andrew Lee and Marjorie Kemp

Appellant argues that his reckless endangerment convictions must be reversed. He argues that because there was no evidence that he "actually" knew that Lee was inside the house or that the next door neighbor, Kemp, was present when he set fire to the house, there was insufficient evidence to show that he intended to harm them. As related below, reckless endangerment does not require that appellant knew that Andrew Lee was present when he set fire to Ms. Alman's house, but that appellant's conduct in setting the fire manifested a conscious disregard to the risks it created, specifically a substantial risk of death or serious bodily injury.

Section 3-204(a), Crim. Law, provides that a person "may not recklessly: (1) engage in conduct that creates a substantial risk of death or serious physical injury to another[.]" We have stated that the mens rea of reckless endangerment,

far from intending, striving, desiring or purposing to bring about a harmful consequence, or any consequence for that matter, is blithely unconcerned with the possible consequences. The state of mind of recklessness, in the context of reckless endangerment as well as in other criminal contexts such as depraved heart murder and possibly grossly negligent manslaughter, is variously described as an attitude wherein the criminal agent, conscious of the life-endangering risk involved, nonetheless acts with a conscious disregard of or wanton indifference to the consequences.

Williams v. State, 100 Md.App. 468, 474, 641 A.2d 990 (1994). In deciding whether certain behavior is reckless, a fact finder must evaluate the defendant's conduct objectively, from the standpoint of an ordinary law-abiding citizen under similar circumstances. Jones v. State, 357 Md. 408, 427, 745 A.2d 396 (2000).

i. Andrew Lee

Evidence presented at trial showed that Lee had been dating Breanna since November 2005, and in the fall of 2007, while appellant was living regularly at the house, Lee was spending an average of five nights a week in Breanna's room. Lee and Breanna were taking college courses the fall of 2007, and they left the house around 9:30 a.m. to get to their 10:00 a.m. classes. Ms. Alman left for work around 7:15 a.m. every weekday. During the time appellant and Lee stayed at Ms. Alman's house, Lee drove a Nissan and Breanna drove a Toyota Camry. When interviewed at the police station, appellant told Detective Dombrowsky where Breanna and Lee regularly parked their cars, stating, "[she] normally [parks] right in the road next to the house. If not, if she can't get a spot when she comes back in from work or out with her boyfriend she's on just the opposite side of the median. That center island." Ms. Alman testified that Breanna and Lee "always" used the front door, and it was her "house policy" that they take off their shoes and leave them in the front foyer. On the morning of the fire, Breanna's and Lee's cars were parked in their usual places and their shoes were in the front foyer.

Contrary to appellant's argument, the State need not produce evidence that appellant "actually" knew that Lee was inside the home when the fire was set. Rather, the State was required to prove that appellant was aware that his conduct created a risk of death or serious physical injury to Lee and that he consciously disregarded that risk. Evidence shows that Lee's car was parked in its usual easily visible spot in the parking lot near Ms. Alman's home. Also, Lee's shoes were beside the front door, as was routine when he was spending the night. Certainly, the fact-finder could infer that appellant was aware that Lee might be present so as to sustain his conviction for reckless endangerment.

ii. Marjorie Kemp

Marjorie Kemp was Ms. Alman's next door neighbor; they shared an adjoining wall. On the morning of the fire, she was getting ready for work when the smoke detectors went off in her house. When she opened the front door to her house smoke was billowing out of Ms. Alman's house. When the fire department arrived several minutes later, they told her not to go back in her house until the fire was completely under control, a process that took several hours. Her house sustained substantial smoke damage to the walls, ceiling and carpeting. She testified that she knew appellant and saw him at Ms. Alman's house on many occasions. Additionally, she testified that she usually left for work between 8:30 and 9:00 a.m.

We agree with the State that when appellant intentionally lit a gasoline-fed fire in the first floor of Alman's house, which was attached to Kemp's house and knowing that Kemp was getting ready to leave for work, appellant engaged in reckless conduct that created a substantial risk of serious physical injury to Ms. Kemp.

D. Second-degree assault of Andrew Lee and Breanna Alman and first-degree assault of Breanna Alman

Appellant argues that these convictions must be reversed because the State failed to establish that he knew that Andrew Lee or Breanna Alman were inside the house when he set fire to it. Appellant's argument is without merit.

Maryland retains the common law meaning of assault. See Crim. Law § 3-201 (b) ("`Assault' means the crimes of assault, battery, and assault and battery, which retain their judicially determined meanings."). There are three forms of assault: the intent to frighten, an attempted battery, and a battery. Christian v. State, 405 Md. 306, 316-322, 951 A.2d 832 (2008) (analyzing the common law and statutory history of assault and battery in Maryland). Here, the trial court found appellant guilty of the battery form of second-degree assault. That form of second-degree assault requires: (1) that the defendant caused offensive physical contact with the victim; (2) that the contact was the result of an intentional or reckless act of the defendant and was not accidental; and (3) that the contact was not consented to or legally justified. See Md. Pattern Jury Instructions — Cr. 4:01C. "It is [] clear that the presence of a specific intent or criminal negligence is a necessary component of the crime of battery and it is the State's burden to prove one or the other of these elements[.]" Elias v. State, 339 Md. 169, 184-85, 661 A.2d 702 (1995)

First-degree assault requires all the elements of second-degree assault, plus that the accused causes or attempts to cause "serious physical injury to another." Crim. Law § 3-202(a)(1). Serious physical injury is defined as that which creates: 1) a substantial risk of death; or 2) causes permanent or protracted serious; i) disfigurement; ii) the loss of the function of any bodily member or organ; or iii) the impairment of the function of any bodily member or organ. Crim. Law § 3-201(d). "[S]ince intent is subjective and, without the cooperation of the accused, cannot be directly and objectively proven, its presence must be shown by established facts which permit a proper inference of its existence." State v. Earp, 319 Md. 156, 167, 571 A.2d 1227 (1990) (quotations and citation omitted).

i. Andrew Lee and Breanna Alman — Second-degree assault

As with reckless endangerment, appellant argues that his second-degree assault convictions should be reversed because the State did not establish that he knew that Lee or Breanna were home when he set the fire. Accordingly, the State failed to show that he intended to harm them. As the State correctly argues, this argument is misplaced, because as stated above, second-degree assault (battery form) may be committed by a reckless act. Under the circumstances, we are persuaded that the State proved that appellant acted recklessly in setting fire to Ms. Alman's house so as to sustain appellant's second-degree assault convictions as to Lee and Breanna.

ii. Breanna Alman — First-degree assault

Appellant likewise argues that his first-degree assault conviction must be reversed because the State failed to prove that he intended to cause serious physical injury to Breanna, because he did not know that she was home when he set fire to the house. We disagree.

The trial court specifically addressed the intent required to find appellant guilty of first-degree assault against Breanna, i.e., that appellant intended to cause serious physical injury. The trial court made the following findings of facts:

The Defendant, certainly having resided there, was well aware of her schedule, and there's no dispute as to her schedule when she was taking classes. She didn't take classes that began before 10:00 in the morning. She would typically leave around, I think she said 9:00 or 9:30, but in any event well after the time that this particular fire was started.

In addition to that, she testified — there was testimony that she also worked at the mall, and the testimony is clear that those working hours were after school. So, again, no evidence that she was ever out of the house early hours of the morning, and that was in fact her pattern and practice for those several years.

There was also testimony as to where she parked her car in the parking lot, that she generally parked in the same area. The testimony was unrefuted that the Defendant knew the make and model of her car, the color of her car, had in fact worked on her car, driven her car, so clearly was aware of which car was hers.

The testimony was also unrefuted that at the hour of the morning when this fire took place, that the parking lot was fairly empty. So clearly it would not have been difficult, and I can draw an inference it would not have been difficult, especially being familiar with her car, to have noticed that car in the parking lot.

In addition, there was testimony about the practice and, in fact, the — I think it was described as sort of like a house rule that the shoes would be taken off upon entering the house through the front door. This was Breanna's practice all the time. There was testimony that the shoes were in the foyer and that there wasn't anything physically obstructing a view from the dining room into the foyer, so the shoes would also have been readily visible.

* * *

So I find that the State proved with all of the testimony and evidence that the Defendant intended to cause serious physical injury in the commission of the assault. He knew her schedule. He set the fire with certainly with full knowledge — I can infer pretty comfortably that he had knowledge that there were people upstairs. There was no testimony that either Breanna or Andy were downstairs on the first floor. They were sleeping upstairs when this occurred. So I do find that the specific intent element as to the assault itself has been proven by the State. I make that finding beyond a reasonable doubt.

We do not find the trial court's findings clearly erroneous. Accordingly, we shall affirm the trial court's conviction.

III.

The trial court imposed, among other things, a sentence of 25 years of imprisonment for first-degree arson and a consecutive 25 years of imprisonment for first-degree assault of Breanna. Appellant argues that the trial court erred in not merging those convictions for sentencing purposes. He recognizes that the convictions would not merge under the required evidence test because each contains an element that the other does not. He argues that the convictions should merge under the rule of lenity or fundamental fairness, however, because the convictions were based on the same act and there was no indication that the legislature intended separate punishments. The State disagrees, as do we.

The "rule of lenity," a rule of statutory construction, "provides that doubt or ambiguity as to whether the legislature intended that there be multiple punishments for the same act or transaction will be resolved against turning a single transaction into multiple offenses." Holbrook v. State, 364 Md. 354, 373, 772 A.2d 1240 (2001) (quotation marks and citations omitted). See also Fineta v. State, 98 Md.App. 614, 620-21, 634 A.2d 982 (1993). We have stated that the rule

is purely a question of reading legislative intent. If the Legislature intended two crimes arising out of a single act to be punished separately, we defer to that legislated choice. . . . If the Legislature intended but a single punishment, we defer to that legislated choice. If we are uncertain as to what the Legislature intended, we turn to the so-called `Rule of Lenity,' by which we give the defendant the benefit of the doubt.

Walker v. State, 53 Md.App. 171, 201, 452 A.2d 1234 (1982), cert. denied, 296 Md. 63 (1983) (quotation marks and citations omitted).

Where the rule of lenity does not mandate a single punishment for two offenses, fairness to the defendant remains a consideration. Monoker v. State, 321 Md. 214, 223, 582 A.2d 525 (1990). Where a particular crime is an integral component of another such that the former ripens into the latter, it may be considered fundamentally unfair to require multiple sentences. Id.

As related above, first-degree arson requires that a defendant willfully and maliciously set fire to a building. Crim. Law § 6-102(a)(1). First-degree assault requires evidence that a defendant may not cause or attempt to cause serious physical injury to another where the act was intentional or reckless and the harm was not consented to by the victim nor legally justified. Crim. Law § 3-202(a)(1).

Here, we are not persuaded that the punishments in this case should merge under either the rule of lenity or fundamental fairness. The legislature plainly set out separate punishments for first-degree arson and first-degree assault and so there is no ambiguity as to what the legislature intended. Cf. Wootenr-Bey v. State, 76 Md.App. 603, 629, 547 A.2d 1086 (1988) (finding improper the application of the rule of lenity where case involved two separate criminal acts for which the Maryland Legislature has provided distinct punishments), aff'd, 318 Md. 301, 568 A.2d 16 (1990). Moreover, we are not persuaded that we should apply the doctrine of fundamental fairness. While it is true that here the crime of first-degree assault was perpetrated by means of arson, each crime punishes a different harm. First-degree arson is a crime against property and first-degree assault is a crime against a person. Cf. Holbrook v. State, 364 Md. 354, 372, 374, 772 A.2d 1240 (2001) (rejecting the claim of merger of reckless endangerment and arson under the rule of lenity where the legislature codified the former offense as one against the person and the latter offense as one against property). Accordingly, we shall affirm the sentences imposed.

JUDGMENTS AFFIRMED.

COSTS TO BE PAID BY APPELLANT.