MARKS v. CRIMINAL INJURIES COMP. BD

s with the application of Crim. Proc. § 11-810(d), which in certain circumstances forecloses entitlement to benefits under the Act because of the victim's conduct. Specific disqualifying acts are governed by Crim. Proc. § 11-810(d)(3)(i), which, as noted above, provides for a denial of benefits where the victim "initiated, consented to, provoked, or unreasonably failed to avoid a physical confrontation with the offender." This section is similar to Crim. Proc. § 11-808(a)(2). Neither provision, which addresses conduct directly applicable to the commission of the criminal act at the basis of the claim, applies on these facts.

Crim. Proc. § 11-810(d)(3)(ii) forecloses entitlement where the victim "was participating in a crime or delinquent act when the injury was inflicted." Citing Crim. Proc. § 11-810(d)(3)(ii), appellant contends that "there is no evidence that [he] was participating in a crime." We need not address appellant's argument with respect to Crim. Proc. § 11-810(d)(3)(ii), because Crim. Proc. § 11-810(d)(1)(i), the pertinent provision here, permits the Board to reject a claim if "the victim's conduct contributed to the infliction of the victim's injury." This section addresses conduct generally, and it does not specify that such conduct be unlawful. Nor does it define the term "contributed" or offer guidance as to how a victim's conduct renders him responsible in the infliction of the injuries so as to bar his entitlement to an award under the Act.

Proximate Cause

Appellant maintains that a victim's conduct must be a proximate cause of his injuries in order for an award to be foreclosed. We agree and explain.

In his brief, appellant asserts:

a) The Board cannot deny compensation unless the contributing conduct was in fact the proximate cause of Victim's injuries.

b) There is no evidence in the record that the Victim's own conduct proximately caused his injuries.

c) The rules of statutory construction do not allow for a denial of Victim's claim based on Md. Code Ann.Crim. P. § 11-810.

d) Even assuming the Board's allegations of drug activity are correct, the Board still did [not] present sufficient evidence of contributory conduct.

The language of the Act as a whole, the context of its enactment, available legislative history, and Maryland cases that have interpreted provisions of the Act, do not reveal any legislative intent regarding the problem of gauging whether and how a victim's conduct "contributed" to the infliction of his injury. What is clear, however, is that a victim must be responsible for his or her actions, and where there is some nexus between the victim's conduct and the "compensable" injury, the victim/claimant may forfeit an award in whole or in part. The question of whether a victim's conduct must be a proximate cause of his injuries so as to foreclose an award under the Act appears to be a matter of first impression in Maryland.

As enacted in 1968, the Maryland statute was "modeled upon the New York statute, adopted in 1966[.]" Criminal Injuries Compensation Board v. Gould, 273 Md. 486, 497, 331 A.2d 55 (1975). The Maryland statute as enacted in 1968 provided in pertinent part:

In determining the amount of an award, the Board or Board members, as the case may be, shall determine whether, because of his conduct, the victim of such crime contributed to the infliction of his injury, and the Board or Board Member shall reduce the amount of the award or reject the claim altogether . . .

1968 Laws of Maryland, Chap. 455, § 1. Codified in Md. Code (1966 Supp.), Art. 26A, § 12(e). This language is virtually identical to the relevant section of the New York statute as enacted in 1966. See 1966 Laws of New York, Chap. 894 (codified in N.Y. Exec. Law, Art. 22 (McKinney, 1972)). Section 631.5 of the New York Act then provided in pertinent part:

In determining the amount of an award, the board or board member, as the case may be, shall determine whether, because of his conduct, the victim of such crime contributed to the infliction of his injury, and the board or board member shall reduce the amount of the award or reject the claim altogether . . .

Exec. Law. § 631.5 (emphasis added).

After reviewing decisions from sister jurisdictions under their respective victim's compensation statutes, we shall conclude that a victim's conduct must be a "proximate cause" of his injury before he would be disqualified from an award pursuant to Crim. Proc. §§ 11-810(d)(1)(i) and 11-810(d)(3)(ii).

"Proximate causation is not a concept susceptible of precise definition." Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687, 713, 115 S.Ct. 2407, 132 L.Ed.2d 597 (1995) (O'Connor, J., concurring). In a case involving restitution, the Court of Appeals has noted that "tort scholars have described the `art' of determining proximate cause," and that there is "nothing in the entire field of law which has called forth more disagreement, or upon which the opinions are in such a welter of confusion." Pete v. State, 384 Md. 47, 60 n. 15, 862 A.2d 419 (2004) (citations and internal quotation marks omitted).

In a negligence case, Judge McAuliffe stated for the Court in Atlantic Mutual Insurance Co. v. Kenney, 323 Md. 116, 127-28, 591 A.2d 507 (1991): "In order to be a proximate cause, the negligence must be 1) a cause in fact, and 2) a legally cognizable cause." As to the latter element, the Court emphasized the importance of the foreseeability of harm resulting from the actor's negligence. Id. at 130, 591 A2d 507 (citing cases). More recently, Judge Raker elaborated on the issue of proximate cause:

Legal cause and proximate cause has been widely discussed in cases and legal literature and has posed obstacles to recovery for victims for generations. . . . The principles have been set out, explored, explicated and expanded. . . . It is a basic principle that "[n]egligence is not actionable unless it is a proximate cause of the harm alleged." . . . Proximate cause "involves a conclusion that someone will be held legally responsible for the consequences of an act or omission." . . . To be a proximate cause for an injury, "the negligence must be 1) a cause in fact, and 2) a legally cognizable cause." . . . In other words, before liability may be imposed upon an actor, we require a certain relationship between the defendant's conduct and the plaintiff's injuries. The first step in the analysis to define that relationship is an examination of causation-in-fact to determine who or what caused an action. The second step is a legal analysis to determine who should pay for the harmful consequences of such an action.

Pittway v. Collins, 409 Md. 218, 243-44, 973 A.2d 771 (2009) (citations omitted).

The Court of Appeals has also observed:

Proximate cause ultimately involves a conclusion that someone will be held legally responsible for the consequences of an act or omission. This determination is subject to considerations of fairness or social policy as well as mere causation. Thus, although an injury might not have occurred "but for" an antecedent act of the defendant, liability may not be imposed if for example the negligence of one person is merely passive and potential, while the negligence of another is the moving and effective cause of the injury . . . or if the injury is so remote in time and space from defendant's original negligence that another's negligence intervenes.

Peterson v. Underwood, 258 Md. 9, 16, 264 A.2d 851 (1970) (citations omitted). See Baltimore Gas Electric Co. v. Lane, 338 Md. 34, 51-52, 656 A.2d 307 (1995).

Applying this analysis in the context of this case would mean that, for the victim's conduct to preclude a claimant's entitlement to an award, it would have to be a proximate cause of the injury that forms the basis of the claim. If the "harmful consequences" of the victim's conduct are foreseeable, and not attenuated by an intervening action, the conduct is a proximate cause of, and can thus be said to "contribute" to, the infliction of the victim's injuries. By assessing a victim's conduct in terms of responsibility for the foreseeable consequences of his or her conduct, even where a consequence may entail injury to that victim, the application of a proximate cause standard by which that conduct is judged furthers the legislative purpose of compensation for innocent victims of crime.

Notwithstanding the absence of Maryland authority on this issue, cases from sister jurisdictions have examined the use of causation analyses in determining whether a claimant's conduct contributed to his injury. These cases are instructive.

In McMillan v. Crime Victims Compensation Board, 155 Mich.App. 358, 399 N.W.2d 515 (1986), the Michigan intermediate appellate court reversed the denial of compensation benefits to a claimant who had been shot while present in an unlicensed bar. The victim's presence in the bar constituted a misdemeanor, and this infraction provided the basis for the administrative denial of the claim. The Michigan intermediate appellate court reversed. The court set forth the conflicting approaches to the causation analysis advanced by the board and the victim and its explanation of its employment of a "proximate cause" test warrants extensive quotation:

Compare Crim. Proc. § 11-810(d)(3)(ii) (award barred if victim was participating in a crime or delinquent act).

We believe . . . the narrow scope of coverage of the act . . . does not require an interpretation so restrictive as to thwart the legislative intent to aid crime victims. Therefore, in this case, we reject the board's interpretation of the statutory term "contributed to the infliction of his injury." The board, under its interpretation, holds that any time a claimant violates any criminal statute and the violation of the criminal statute is in any way a cause in fact of the claimant's injury, the claimant has "contributed to the infliction of his injury." Such an interpretation would lead, in some situations, to results that would appear to be contrary to the Legislature's intent to aid certain crime victims who are not blameworthy in causing their injuries. We do not believe that the Legislature, through MCL 18.361(4); MSA 3.372(11)(4), intended to prohibit recovery to a crime victim who was not in any way truly blameworthy for his injury.

We also reject the other possible extreme literal interpretation of the term "contributed to the infliction of his injury" that would require an injured person to have contributed to the actual act of inflicting his injury before being denied recovery. Under this other interpretation, the injured person would have to have helped pull the trigger or thrust the knife which caused his injury in order to allow the board to reduce or deny an award. We do not believe the Legislature intended either extreme result in using the term "contributed to the infliction of his injury."

Rejecting these somewhat extreme interpretations of the statutory term in question leaves us in a situation where each case in which the claimant has engaged in some possible peripheral criminal conduct that may have been connected with his injury must be decided in the light of its particular facts.

. . . The determination of whether a victim "contributed to the infliction of his injury" involves an assessment of the particular factual situation similar to that used in determining whether a defendant's negligent acts were a proximate cause of a plaintiff's injuries. The test used in determining proximate cause involves assessing the foreseeability that the injury would result from the defendant's acts. If the injury which resulted from the defendant's acts is deemed too remote or unforeseeable, the defendant's acts are not held to be a proximate cause of the injury and the plaintiff cannot recover damages from defendant.

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In applying the general proximate cause type of foreseeability test to the facts of this case, we believe the board erred in finding that the claimant contributed to the infliction of his own injury. His violation of a criminal statute in this case merely involved his knowing presence in an unlicensed bar. The risk of being shot while merely present in an unlicensed bar is too remote and unforeseeable to hold him blameworthy in any way for his injuries.

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Thus, as a matter of judicial policy, we do not choose to treat claimant's illegal presence in the bar as a "proximate cause" of his injuries, since a gunshot injury was not a reasonably foreseeable risk of his act of entering an unlicensed bar. Therefore, we conclude that he did not "contribute to the infliction of his injury," for purposes of the statute, by being present in the unlicensed bar, and the board erred in denying his claim on this basis.

McMillan, 399 N.W.2d at 518-20.

In Evans v. N.C. Dept. of Crime Control, 101 N.C.App. 108, 398 S.E.2d 880 (1990), the Court of Appeals of North Carolina held that,

where a claimant's injuries are a direct result of the criminally injurious conduct of another, the claimant's own misconduct must have been a proximate cause of those injuries in order for the [Crime Victims Compensation] Commission to deny or reduce the claim under the statute.

Evans, 398 S.E.2d at 885.

The standard set forth in Evans was further applied in McCrimmon v. Crime Victims Compensation Commission, 121 N.C.App. 144, 465 S.E.2d 28 (1995). In the latter case, the claimant grabbed a $20 bill from a convenience store customer and started to flee. He was shot by the store proprietor and was paralyzed as a result of the wound. The store owner was charged with assault and the victim charged with larceny. The victim's claim for compensation was denied by the North Carolina commission and he appealed. He argued that being shot by the store proprietor was not a foreseeable result of his theft of a customer's money. The commission disagreed, and the North Carolina Court of Appeals affirmed. The intermediate appellate court explained:

However, petitioner maintains that "the act of Mr. Sineath was not reasonably foreseeable and therefore, by application of tort principles, [petitioner's attempt to steal the money] was not contributory misconduct" so as to justify reduction or denial of petitioner's claim under the statute. We believe petitioner misapprehends the purport of "contributory misconduct."

While "contributory misconduct" is not defined in the Act, this Court has previously interpreted the phrase. Evans v. N.C. Dept. of Crime Control, 101 N.C.App. 108, 118, 398 S.E.2d 880, 885 (1990) . . . "Misconduct" is behavior that is "unlawful or . . . breaches the standard of conduct acceptable to a reasonable person." Id. Further,

in order for [a] claimant's misconduct to be contributory [under the Act] it must combine with criminal action on the part of another to become a `real, efficient and proximate cause of the injury.'

Id. at 117, 398 S.E.2d at 885 (citation omitted). A proximate cause is one which

in natural and continuous sequence, unbroken by any new and independent cause, produced the plaintiff's injuries, and without which the injuries would not have occurred, and one from which a person of ordinary prudence could have reasonably foreseen that such a result, or consequences of a generally injurious nature, was probable under all facts as they existed.

Id. . . .

The test under Evans, therefore, is two-pronged, that is, 1) was there misconduct on the part of petitioner and, if so, 2) was that misconduct a proximate cause of his injury?

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Regarding the element of proximate cause, petitioner takes issue with the Commission's conclusion that "it was reasonably foreseeable to the Petitioner that his illegal acts could result in injury to himself." However, this Court in Evans pointed out that:

The test of foreseeability as an element of proximate cause does not require that the actor should have been able to foresee the injury in the precise manner in which it actually occurred.

Therefore, petitioner need not necessarily have been able to foresee that his conduct would lead to his being shot, but only that "consequences of a generally injurious nature[] [were] probable under all the facts as they existed." . . . Indeed, in certain instances "the intervention of wrongful conduct may be the very risk" a person creates through his or her own misconduct . . . and such intervention accordingly is foreseeable.

McCrimmon v. Crime Victims Compensation Commission, 465 S.E.2d at 30-31 (citations omitted). Cf. Fisher v. Kansas Crime Victims Compensation Board, 280 Kan. 601, 124 P.3d 74, 83-84 (2005) (without adopting specific standard, court cites to "comparative fault" or "proximate cause" analyses for guidance for compensation board to analyze causation issue).

We agree with the analyses by the intermediate appellate courts of Michigan and North Carolina, and shall adopt a "proximate cause" standard for assessing whether a victim's conduct contributed to his injuries so as to preclude an award under the Act pursuant to Crim. Proc. §§ 11-810(d)(1)(i) or 11-810(d)(3)(ii).

Conduct in this Case

The Board found that appellant's "illegal conduct" — his participation in the narcotics trade — precluded an award. Broadly stated, the contributory conduct was appellant's participation in the narcotics trade, which led to conflicts with rival dealers, in particular Corey Harrison.

We do not interpret the Board's decision as a finding that appellant was engaged in a specific criminal act as that term is defined in Crim. Proc. § 11-810(d)(3)(ii). It is clear from the context of the Board's opinion and the record that the "illegal conduct" that barred an award in this instance was appellant's general participation in the narcotics trade in that neighborhood.

There can be no serious dispute that there is an intimate relationship between violence and drugs. See, e.g., Nance v. State, 331 Md. 549, 555, 629 A.2d 633 (1993) (alleged drug turf war that ostensibly provoked shooting); Handy v. State, 175 Md.App. 538, 552, 930 A.2d 1111 (quoting trooper's reference about drug wars), cert. denied, 402 Md. 353, 936 A.2d 851 (2007). See generally United States v. Wilson, 605 F.3d 985, 999 (D.C. Cir. 2010) (noting gang's monopoly on drug sales within "turf" "strictly enforced"); United States v. Aviles-Colon, 536 F.3d 1, 18 (1st Cir.) (observing that gang was often at war with other drug organizations over drug "turf."), cert. denied, 555 U.S. ___, 129 S.Ct. 615, 172 L.Ed.2d 470 (2008); United States v. Carson, 455 F.3d 336, 340 (D.C. Cir. 2006) (noting "widespread violence that runs through this case begins . . . with the murder of . . . a victim in a drug-dealing turf war."), cert. denied, 549 U.S. 1246, 127 S.Ct. 1351, 167 L.Ed.2d 146 (2007); John A. Powell Eileen B. Hershenov, Hostage to the Drug War: The National Purse, the Constitution and the Black Community, 24 U.C.DAVIS L. REV. 557, 608 nn. 209-10 (1991) (noting expert agreement that increase in violent crime attributable to profits from drug trade and "turf wars of drug dealers").

A shooting victim who becomes a casualty in a drug "turf war" because of perceived allegiance to, and participation with, one side of a drug rivalry, may be considered a "foot soldier" in the internal drug wars over turf and influence. The risks of such participation are foreseeable. Indeed, according to Detective Miller's testimony, which the Board credited, appellant had indicated that "this was expected because of the life that they were living. He kind of shrugged his shoulders about it, like, oh, you know, it happened."

Citing a decision by the Ohio Court of Claims in In re DeCerbo, 5 Ohio Misc.2d 11, 449 N.E.2d 526 (Ohio Ct.Cl.1982), appellant contends that there is no evidence that he "re-engaged" in his prior illegal activity, and that "[n]o evidence exist[s] to establish a nexus between Victim's prior acts from nearly a decade ago and the incident occurring in September 2006." This argument is undermined by Detective Miller's testimony. In re DeCerbo is thus inapposite.

But a claimant's participation in narcotics dealing would not per se meet the contributory conduct test. Appellant maintains that his conduct was not a proximate cause of his injuries. We disagree.

Appellant's reliance on Fisher and McMillan, both supra, is misplaced. The administrative tribunal that denied benefits in Fisher v. Kansas Crime Victims Compensation Board failed to determine whether the victim's conduct in that case contributed to his injury. No causation inquiry had been conducted. Moreover, unlike the case before us, the facts in Fisher were not in dispute. Fisher, 124 P.3d at 78. In McMillan, the Michigan court concluded that the victim's injury was not a reasonably foreseeable risk of his supposed misconduct, and thus was not a proximate cause of his injury. McMillan, 399 N.W.2d at 520. Unlike the victim's conduct in McMillan, the consequences of appellant's conduct in the case sub judice were reasonably foreseeable. Again, as pointed out above, Detective Miller testified that appellant anticipated trouble "because of the life that they were living." The Board could find that appellant could reasonably foresee the risks that were inherent in running a drug trade.

Similarly, our decision in Johnson v. Criminal Injuries Compensation Board, supra, does not preclude the result we reach today. In Johnson, we noted the following facts:

Detective Nevins of the Baltimore City Police Department's Homicide Unit investigated the incident in which appellant was injured. The Board's investigator was informed by Detective Nevins that (1) appellant was one of four people injured in this incident, (2) no suspects had been apprehended, (3) appellant was a "known" drug dealer, (4) the area in which the shooting occurred was the appellant's "territory," and [(5)] Detective Nevins believed that the shooting was "drug related." Because of the information provided by Detective Nevins, the Board's investigator recommended that the Board deny appellant's claim.

Johnson, 145 Md.App. at 102, 801 A.2d 1092. On the basis of this evidence, the Board concluded that Johnson was not an innocent victim. Johnson had not requested a hearing before the Board, but sought judicial review after the Board's decision. We reversed the denial of benefits and remanded. After noting the appropriate burden of persuasion, we faulted the Board's decision, and also the sufficiency of the evidence, which was largely based on unreliable hearsay:

In the case at bar, the information supplied by Detective Nevins was not sufficient to generate the issue of whether appellant was shot as a result of his participation in criminal conduct. Thus, the Board erred in requiring that appellant bear the burden of persuading the Board that he did not contribute to his injuries.

Id. at 115, 801 A.2d 1092 (footnote omitted). The Board's decision in Johnson was based on largely unsubstantiated and unreliable hearsay. Although there was speculation that Johnson had engaged in "drug dealing," and that "territory" was at stake, evidence to support these findings had not been tested at a hearing during which Johnson would confront this speculation directly.

If the issue of contributory conduct has been generated by the evidence, the burden shifts to a claimant to rule out proximate causation. In Johnson v. Criminal Injuries Compensation Board, 145 Md. App. 96, 801 A.2d 1092 (2002), this Court, citing with approval the decision of a New York intermediate appellate court, stated:

We agree with [the New York cases' interpretation of a similar statute] and hold that, when the circumstances are such that the Board must decide whether the petitioner did or did not contribute to his or her injuries, the petitioner has the burden of persuasion on that issue.

Johnson, 145 Md.App. at 112, 801 A.2d 1092 (citing Callicutt v. Executive Dept., Crime Victims Bd., 245 A.D.2d 689, 665 N.Y.S.2d 125, 126 (1997)). In the case sub judice, this issue was generated by the testimony of Detective Miller. Accordingly, the burden of persuasion shifted to appellant to establish, by a preponderance of the evidence, that his conduct was not a proximate cause of his injuries.

Unlike Johnson, a hearing was conducted in the case sub judice, and the parties aired the factual issues in dispute. Detective Miller recalled admissions by appellant about dealing in drugs and the occupational hazards of that conduct. Investigator McKoy learned that appellant had a previous record. Both witnesses were subjected to vigorous cross-examination. Although appellant strenuously denied dealing in drugs or engaging in a turf conflict with his assailant, and emphatically denied making any statements at all to the detective, the Board was free to accept or reject his testimony in whole or in part. It is the "agency's province to resolve conflicting evidence and where inconsistent inferences can be drawn from the same evidence it is for the agency to draw the inferences." Comptroller of the Treasury v. Science Applications International Corp., 405 Md. 185, 193, 950 A.2d 766 (2008) (citations and internal quotations omitted).

The testimony of Detective Miller adequately fills in the gaps that undermined the sufficiency of the record in Johnson. Given our duty to defer to the findings made and inferences drawn by the Board, provided those determinations are supported by substantial evidence, we must affirm. The suggestion that the Board should not have believed Detective Miller is an argument that is best left to the trier-of-fact. Our task is not to reweigh the record, and a suggestion that we may do so is an argument that is "wasted on an appellate court." United States v. Hartmann, 958 F.2d 774, 780 (7th Cir. 1992) (citations and internal quotation marks omitted).

In summary, we agree that the record must establish an element of causation; the conduct must have been contributory. We also conclude that the causation standard is that of proximate cause. The evidence generated this issue, and the burden shifted to appellant to establish by a preponderance of the evidence that any conduct on his part was not "contributory"; appellant was required to establish that his conduct was not the proximate cause of his injuries. The Board's decision to credit the testimony of Detective Miller is supported by substantial evidence, is not irrational, and accords with applicable law.

Criminal History Information Disclosure

Appellant complains that the Board erred by relying on criminal history information ("CHRI"), the disclosure of which is prohibited by federal and state law. In view of this error, appellant asserts that the denial of benefits must be reversed. We disagree.

A board investigator, Anita McKoy, testified that she queried the CJIS database and determined that appellant had been arrested on previous occasions. This information was apparently derived from appellant's "rap sheet." The Board noted the fact that appellant had once been arrested and charged as a drug "kingpin," but had not been convicted of this charge.

See Md. Code (2002 2006 Supp.), § 5-613 of the Criminal Law Article. "The major objective of the Drug Kingpin Act was to reduce the supply of drugs in Maryland by establishing harsher penalties for drug dealers and by decreasing the profitability of participation in a drug trafficking crime." Neal v. State, 191 Md.App. 297, 310, 991 A.2d 159 (citations and internal quotation marks omitted), cert. denied, 415 Md. 42, 997 A.2d 792 (2010).

Appellant maintains that the disclosure of CJIS records to an entity such as the Board is unlawful, and that this violation of federal and state laws prohibiting such disclosure was prejudicial. The Board maintains that appellant's challenge to its consideration of his criminal history records information is not before us because he did not object to the use of his criminal record, but instead asserted only that it was not accurate and that the records related to incidents that were too remote.

We agree that this issue has not been preserved, and that it is not properly before us. Md. Rule 8-131(a) provides, in part, that "[o]rdinarily, the appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court[.]" The "animating policy behind Rule 8-131(a) is to ensure fairness for the parties involved and to promote orderly judicial administration." Jones v. State, 379 Md. 704, 714, 843 A.2d 778 (2004). Unfair prejudice has resulted when a party seeks review of an issue that could have been addressed by the lower tribunal. See id.

Counsel did not object to the consideration of the criminal history information during the testimony of Anita McKoy. Although he complained in his memorandum of law before the circuit court that the Board based its denial on his "participation in some unspecified illegal activity[,]" appellant did not challenge the Board's use of, or access to, his criminal history information records.

This Rule also "applies to appellate review of administrative proceedings." Parham v. Department of Labor, 189 Md.App. 604, 615, 985 A.2d 147 (2009) (citation omitted). See Beeman v. Department of Health, 107 Md.App. 122, 158-59, 666 A.2d 1314 (1995). Indeed, it is settled law in Maryland that a court ordinarily "may not pass upon issues presented to it for the first time on judicial review and that are not encompassed in the final decision of the administrative agency." Motor Vehicle Admin. v. Shea, supra, 415 Md. at 15, 997 A.2d 768 (citations and internal quotation marks omitted). The application of Rule 8-131(a) in this instance would promote the "orderly administration of justice" by preventing the adjudication of appellant's claim in a piecemeal fashion. See Jones v. State, 379 at 715, 843 A.2d 778. Even assuming that the board investigator gained unauthorized access to appellant's arrest and criminal history (CHRI) records via the CJIS, we would not be persuaded to exercise our discretion to review this issue.

Title 10, subtitle 2 of the Criminal Procedure Article ("Crim.Proc.") governs the "Criminal Justice Information System ("CJIS")." By enacting various provisions addressing the collection, retention and dissemination of criminal history records information, the General Assembly in part sought to "prohibit the improper dissemination of criminal history records information." Md. Code (2008), § 10-202(4) of the Criminal Procedure Article. The "General Assembly enacted the CJIS statute to create a uniform management system for managing CHRI in Maryland." 92 OP. ATT'Y GEN 26, 34 (2007). The "legislation was designed to ensure that Maryland's system complied with federal regulations." Id. at 35. The statute established a CJIS Central Repository in the Department of Public Safety and Correctional Services ("DPSCS")." Id.

The CJIS Central Repository compiles and maintains data of an individual's history of arrests, convictions, and other adverse criminal actions, but CJIS strictly limits access to its data. See Maryland Code, § 10-213 of the Criminal Procedure Article (2001); COMAR 12.15.01.08- 12.15.01.13 (2003). An ordinary citizen may not obtain criminal history information from CJIS without demonstrating convincingly that the purpose of requesting the data meets one of CJIS's narrow exceptions ( e.g., an employer who is seeking background information on a prospective employee whose job could "jeopardize the life and safety of individuals"). COMAR 12.15.01.13. As a result, the CJIS report is not public.

Attorney Grievance Commission v. Gansler, 377 Md. 656, 691 n. 19, 835 A.2d 548 (2003).
"Federal and state statutes and regulations enacted since 1975 have limited to some extent the availability of criminal record information. See Criminal Justice Information System, 28 C.F.R. § 20.1 et seq. (1985); Maryland Code (1957, 1982 Repl.Vol., 1984 Cum.Supp.) Article 27, § 743 et seq. (State Criminal Justice Information System)[.]" Cramer v. Housing Opportunities Comm'n, 304 Md. 705, 716 n. 10, 501 A.2d 35 (1985). The regulations that implement the "Criminal Justice Information System" provisions of the Criminal Procedure Article are set forth in COMAR Title 12, subtitle 15. While there are sanctions for the improper dissemination of a person's criminal history record information, see, e.g., Crim. Proc. § 10-228 (criminal penalty for actions by employers or prospective employers); 28 C.F.R. 20.25 (civil penalties; curtailment of federal funds), appellant has not directed us to any authority that dictates the remedy he seeks in this case, viz. the reversal of an agency decision based in part on improper disclosure of a party's criminal history records information. Further, the exclusion of CHRI from the Board's consideration in this case would be ineffective, given the public availability of similar information in court records.

We are mindful that most of the information appellant seeks to protect is, effectively, readily available as public records because many of the same facts are contained in court files. See Md. Rules 16-1001-1011. Such records are available as electronic records subject to retrieval, and "[c]ourt records maintained by a court or by another judicial agency are presumed to be open to the public for inspection." Md. Rule 16-1002(a). Certainly, as Justice Stevens pointed out in the leading case on the confidentiality of "rap sheet" arrest records, "[a]lthough much rap-sheet information is a matter of public record, the availability and dissemination of the actual rap sheet to the public is limited." United States Dept. of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 753, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989). Nevertheless, we perceive no basis for the imposition of some manner of "exclusionary rule" for improper or unlawful disclosures of the CHRI, the application of which would entail a reversal of the Board's decision. Given the penalties that may be imposed in appropriate cases, and the ready availability of alternate sources of nearly identical information, the deterrence rationale for an exclusionary rule in administrative cases such as the one before us is of limited utility.

In the appropriate case, information similar to that contained in a person's "rap sheet" may be the subject of judicial notice by a court or "official notice" by an administrative tribunal. Maryland Rule 5-201 governs the judicial notice of adjudicative facts. State Gov't § 10-213(h) pertains to official notice. With respect to the readily available court records, this Court has taken judicial notice of official entries in circuit court records. See Stovall v. State, 144 Md.App. 711, 717 n. 2, 800 A.2d 31, cert. denied, 371 Md. 71, 806 A.2d 681 (2002). See also Swinson v. Lords Landing Village Condo., 360 Md. 462, 467, 758 A.2d 1008 (2000) (judicial notice that judgment entered on docket). But cf. Simms v. State, 409 Md. 722, 730 n. 8, 976 A.2d 1012 (2009) (Court of Appeals declines to exercise discretion to note adjudicative fact — transcript not in record); Dashiell v. Meeks, 396 Md. 149, 176-77, 913 A.2d 10 (2006) (discretion exercised only in exceptional case).

Md. Rule 5-201 reads in pertinent part:

(a) Scope of Rule. This Rule governs only judicial notice of adjudicative facts. Sections (d), (e), and (g) of this Rule do not apply in the Court of Special Appeals or the Court of Appeals.

(b) Kinds of facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

(c) When discretionary. A court may take judicial notice, whether requested or not.

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(f) Time of taking notice. Judicial notice may be taken at any stage of the proceeding.

A court may take judicial notice of "additional facts that are either matters of common knowledge or capable of certain verification. . . . Included in the latter category are facts `capable of immediate and certain verification by resort to sources whose accuracy is beyond dispute.'" Faya v. Almaraz, 329 Md. 435, 444, 620 A.2d 327 (1993) (citations omitted).

Section 10-213 of the State Government Article governs evidentiary matters, and provides as follows with respect to "official notice":

(h) Official notice of facts. —

(1) The agency or the Office may take official notice of a fact that is:

(i) judicially noticeable; or

(ii) general, technical, or scientific and within the specialized knowledge of the agency.

(2) Before taking official notice of a fact, the presiding officer:

(i) before or during the hearing, by reference in a preliminary report, or otherwise, shall notify each party; and

(ii) shall give each party an opportunity to contest the fact.

Md. Code (1984, 2009 Repl.Vol.), § 10-213(h) of the State Government Article.

It is widely accepted that judicial notice of court records extends to records that are accessed through the Internet. See Doe v. Golden Walters, PLLC, 173 S.W.3d 260, 265 (Ky.Ct.App. 2005) (notice of docket entries via Internet PACER account), cert. denied, 546 U.S. 1094, 126 S.Ct. 1069, 163 L.Ed.2d 862 (2006). Indeed, Md. Rule 16-1008(a) provides for the inspection of a court record "to the same extent that the record would be open to inspection in paper form."

We take judicial notice that records of the Maryland Judiciary are made available by the Administrative Office of the Courts on the Judiciary website. Maryland Judiciary, http://www.mdcourts.gov (last visited October 25, 2010) (Follow "search court records" hyperlink and then follow "case search" hyperlink.). The search yields the same information that appears on a docket sheet.

In the final analysis, appellant's challenge to the Board's use of his criminal records information is not before us. Moreover, given the ready availability of arrest information via court records and the fact that there is no exclusionary remedy that would compel a reversal of the Board's decision, we see no basis to exercise our discretion to entertain this issue.

Remaining Contentions

Appellant's remaining contentions require little discussion. He points out that the Court's standard of review is de novo. This assertion is correct, but only to the extent we review the legal determinations by the Board. Our review of findings by the Board are more deferential under the substantial evidence standard.

Appellant contends that a denial of benefits runs contrary to legislative policy. We are mindful that,

it is clear from the statement of legislative policy in CP § 11-802 that the law is remedial in nature, and remedial statutes are to be liberally construed. The Legislature has recognized and articulated that "there is a need for government financial assistance for these victims" and that "[t]he policy of the State is that help, care, and support be provided by the State, as a matter of moral responsibility, for these victims." CP § 11-802. That objective, that policy, is advanced by construing ambiguous language in favor of eligibility.

Opert v. Crim. Injuries Comp. Bd., supra, 403 Md. at 602, 943 A.2d 1229. We have no quarrel with appellant's claim that "[t]here is no question that Victim sustained serious injuries as a result of his victimization." Nevertheless, an award is not made by default solely because a crime victim has filed a claim. Because "the funds to be disbursed under the Act were public funds, the Act was adopted with statutory prerequisites for monetary awards." Johnson, supra, 145 Md.App. at 108, 801 A.2d 1092 (citation omitted). Appellant's insistence on entitlement thus overlooks Section 11-810 of the Act, which places conditions on an award. Thus, as noted above, an award may be reduced, or denied outright, if the victim's conduct played a role in the infliction of his injuries. See Crim. Proc. § 11-810(d). Had the General Assembly intended that the mere filing of a claim by a victim, without qualification, would conclusively establish entitlement to an award, it clearly would not have enacted CP § 11-810. Where, as here, the Board found that appellant was disqualified on the basis of "contributory conduct," and that finding is supported by substantial evidence, our inquiry is at an end. We emphasize that a "`court may not substitute its judgment on the question whether the inference drawn is the right one or whether a different inference would be better supported.'" Baiza v. City of College Park, supra, 192 Md.App. at 332, 994 A.2d 495 (quoting Layton v. Howard County Bd. of Appeals, 399 Md. 36, 49, 922 A.2d 576 (2007)). Appellant also insists that the Board erred by denying his claim on the basis of past conduct. On the contrary, the Board's decision to credit the testimony of Detective Miller demonstrates its concern that appellant's participation in the narcotics trade was current and on-going.

For example, a study of crime victim's compensation in Maryland recognizes:

Claims are subject to a number of federal and state eligibility criteria, including: cooperation with law enforcement authorities (generally reporting to police within 48 hours and cooperating with prosecution); lack of contributory misconduct (victims' illegal behaviors that were causally connected to the crime); minimum threshold of losses ($100 in unreimbursable expenses or two consecutive weeks out of work); having exhausted all other means of payment (CICB is the payer of last resort); payment caps (a total cap of $45,000 with caps by categories of expenses as well); and claim filing deadlines (generally within six months of the crime).

Lisa Newmark Megan Schaffer, Crime Victims Compensation in Maryland: Accomplishments and Strategies for the Future, REPORT TO THE MARYLAND GOVERNOR'S OFFICE OF CRIME CONTROL AND PREVENTION at 5 (Urban Institute: Justice Policy Center 2003).

Indeed, we must affirm the Board's credibility determinations and findings of first-level facts even if we would have drawn different inferences from the evidence. Cf. Bible v. State, 411 Md. 138, 156, 982 A.2d 348 (2009) (recognizing that fact-finder may choose among differing inferences from evidence and that appellate court must defer to reasonable inferences regardless of whether it would have chosen different reasonable inference). We will not gainsay the findings of the Board.

In the final analysis, we conclude that the Board's decision is supported by substantial evidence based on the record as a whole, that the issue of any improper admission of evidence is first, not properly preserved, and, second, would be harmless, and that the Board did not abuse its discretion by crediting the testimony of Detective Miller. We shall affirm the judgment of the circuit court which in turn upheld the Board's decision.

JUDGMENT AFFIRMED.

APPELLANT TO PAY COSTS.