HEADNOTE:
Rahmat Mitchell Pettigrew v. State of Maryland, No. 154, September
Term, 2006
Md. Code Ann., Criminal Law § 3-201(d) (2007): The following
language does not result in the classification of first-degree
assault as an inchoate crime: A person may not intentionally cause
or attempt to cause serious physical injury to another; serious
physical injury is defined as (1) creating a substantial risk of
death
or
(2)
causes
permanent
or
protracted
serious(i)
disfigurement(ii) loss of the function of any bodily member or
organ or (iii) impairment of the function of any bodily member or
organ.
TRANSFERRED INTENT: Harvey v. State, 111 Md. App. 401, 425-428
(1996); Ford v. State, 330 Md. 682, 715, 625 A.2d 984 (1993); The
law in Maryland is settled that there can be no transferred intent
when the unintended victim is neither killed nor injured.
The
trial court erred in giving jury an instruction on transferred
intent where appellant, in a fit of rage, hurled several missiles
during physical altercation with coworker, injuring employee of
restaurant when glass shards struck her in the face, resulting in
loss of sight to her eye.
CONCURRENT INTENT: Garrett v. State, 394 Md. 217 (2006); Because
the prosecution did not present, and have the concept of concurrent
intent explicitly delineated to the jury, the doctrine cannot be
the basis for upholding appellant’s conviction for first-degree
assault on appeal.
MERGER: Because infirmity in proceedings resulting in conviction
for first-degree assault did not affect appellant’s conviction for
reckless endangerment, conviction for reckless endangerment was not
disturbed.
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 154
September Term, 2006
RAHMAT MITCHELL PETTIGREW
v.
STATE OF MARYLAND
Davis,
Eyler, Deborah S.,
Bloom, Theodore G., (retired,
specially assigned),
JJ.
Opinion by Davis, J.
Filed: July 3, 2007
Appellant, Rahmat M. Pettigrew, was tried and convicted by a
jury in the Circuit Court for Baltimore County (Cavanaugh, J.) of
one count of first-degree assault, two counts of second-degree
assault, one count of reckless endangerment and one count of
malicious destruction of property.
He was sentenced to twenty
years imprisonment for the first-degree assault charge, three years
imprisonment for each of the second-degree assault charges, two
years for reckless endangerment and six months for the malicious
destruction of property, both of the latter two charges to run
concurrently to the sentence for first-degree assault.
In this
appeal, appellant presents the following questions for our review:1
I.
Was
the
evidence
insufficient
to
support
appellant’s conviction of assault in the firstdegree, employing the doctrine of transferred
intent?
II.
Did the trial court err by instructing the jury on
the doctrine of transferred intent?
III. Did the trial court err by not merging appellant’s
convictions of first-degree assault and reckless
endangerment for the purpose of sentencing?
We
answer
questions
I
and
II
in
the
affirmative
and,
1
Appellant’s questions, as stated in his brief, are as
follows:
1.
Is the evidence insufficient to support a conviction of firstdegree assault where [appellant] threw glassware at one
person, did not physically injure that person, but broken
glass hit another person in an adjacent room causing injury?
2.
Did the trial court err in instructing the jury on the
doctrine of transferred intent?
3.
Did the trial court err in imposing separate sentences for
first degree assault and reckless endangerment?
accordingly, reverse the judgment of conviction for first-degree
assault.
Perceiving that the conviction for reckless endangerment
was unaffected by errors relating to the conviction for firstdegree assault, we affirm the conviction and sentence for reckless
endangerment.
FACTUAL BACKGROUND
On the afternoon of June 15, 2005, appellant entered an
Applebee’s restaurant in Baltimore County.
His friend and co-
worker, Jeffrey Stewart, was drinking at the bar located in the
middle of the restaurant.
Appellant sat next to Stewart and began
discussing a disagreement that they had had at work.
After a few
minutes, the conversation grew heated and Stewart “made a gun
gesture”2 at appellant’s head.
Jeremy Davis, the manager of the restaurant, then attempted to
intervene. Both men continued shouting obscenities and threatening
each other.
Stewart “started rushing” and a punch was thrown.
Davis testified that appellant threw the punch, which struck
Stewart in the face and caused both Davis and Stewart to fall
backwards.
Appellant then picked up a heavy wooden bar stool and
threw it in Davis’ and Stewart’s direction, striking Davis in the
back. The brawl continued with appellant and Stewart tackling each
other and falling to the ground.
2
He ostensibly mimicked shooting appellant in the head.
-2-
As others in the restaurant attempted to halt the altercation,
Stewart hid at the far end of the bar located near the entryway to
the kitchen.
Appellant began to hurl glassware from nearby tables
at Stewart.
Struck by a glass pepper shaker, Davis indicated that
Stewart cowered behind him in an effort to avoid the projectiles.
Stewart next ran to the side of the horseshoe-shaped bar
closest to the front of the restaurant.
Davis testified that
appellant “began to pick up anything that he could get his hands
on, ashtrays, shot glasses, beer mugs, and began to throw them in
the direction of the entrance to the kitchen,” which shattered “on
a light shade and on the wall.”
Thomas McNiel, an Applebee’s employee, stated that appellant
was approximately ten feet away from the entrance to the kitchen as
he threw the glass.
McNiel testified that he was able to pull some
of the glasses and things out of appellant’s reach; however,
appellant grabbed three or four “bar tumbler” glasses, among other
things, and threw them in Stewart’s direction.
McNiel further
testified that appellant was “extremely angry . . . irate,” and
ignored demands to leave the restaurant.
Sara Juarez, a twenty-three year old cook, and Todd Kuyawa, a
plumber hired to fix a leak, were both in the kitchen as the
commotion in the bar area occurred.
Juarez, five months pregnant
on the date of the incident, walked out only a step in front of
Kuyawa to investigate the disturbance.
in the dining room as “mayhem.”
-3-
Kuyawa described the scene
One of the glassware items thrown by appellant hit the wall,
shattering into several pieces, approximately eight feet from where
Juarez and Kuyawa were located.
Shards of glass hit Juarez and she
sustained cuts to her face, lower lip and eye.
Kuyawa testified
that all he could hear was Juarez screaming and he witnessed blood
“just gushing all over the place.”
Davis stated that he found Juarez in the kitchen “screaming
extremely loud” and with the blood “gushing very fast and very hard
out of her eye, out of her mouth, out of her cheek.”
He witnessed
glass actually protruding from her eye, which “appeared to be
severed right down the middle.”
Juarez testified that the glass
cut her left eye “in half,” and also cut her lip, the top of her
nose under her eye, and the top of her right eyelid.
Juarez lost
all vision in her left eye, and it eventually had to be removed to
prevent infection.
Kuyawa
was
also
struck
by
flying
glass,
receiving a “very deep” cut on his arm that required stitches.
Undeterred by the severity of Juarez’s injury, appellant and
Stewart continued to fight.
Mall security attempted to pull the
two men apart, finally separating them before the police arrived.
The police, upon their arrival, observed Stewart pacing back and
forth while appellant sat at the bar. Although appellant’s shirt
had been torn off and he had sustained a cut to his hand that was
bleeding, Stewart had not suffered any visible injuries. Both men
were arrested. Appellant was charged with first-degree assault and
reckless endangerment as to Juarez, two counts of second-degree
-4-
assault as
property.
to
Kuyawa
and
Davis
and
malicious
destruction
of
Appellant was not charged with second-degree assault as
to Juarez, nor was he charged as to Stewart.
Arguing that the doctrine of transferred intent does not
apply, appellant moved for judgment of acquittal at the end of the
State’s case and renewed the motion at the end of the entire case.
The court denied appellant’s motion for judgment of acquittal at
the close of the State’s case and at the conclusion of all of the
evidence.
The State argued, in opposition to the defense’s motion for
judgment of acquittal, that the jury could find appellant guilty of
first-degree assault by ascribing whatever intent appellant had
directed at Stewart and transferring it to Juarez.
So in effect, the Defense is arguing that the
Defendant should be rewarded because his aim was bad. He
certainly meant to do that to Jeffrey Stewart. He did it
to Sara Juarez as opposed to Jeffrey Stewart. And the
Defendant should not be given the benefit of not having
that doctrine of transferred intent apply in this case,
and this is specifically, this is the prototypical, I
would say, for a case for applying a transferred intent
doctrine.
The purpose of the doctrine is basically to bridge
two halves of a crime together. When you have a mens rea
directed toward one victim and an actus reus that is
carried out on a second victim, the transferred intent
doctrine bridges the two together so you have a completed
crime. And in this case, the Defendant intended to bring
about a serious debilitating injury to Jeffrey Stewart.
That very same injury occurred to Sara Juarez.
Therefore, the State’s arguing that the transferred
intent should apply.
Now, [defense counsel] has cited a bunch of cases,
specifically the Harrison case, that really does go into
-5-
the detailed discussion about transferred intent. And
those cases discuss situations in which the defendants
are charged with incoherent [sic] crimes, such as
attempted murder. And that case talks about the fact
that you can’t really apply a transferred intent to an
attempted murder charge to an unintended victim.
In
other words, it doesn’t make sense to charge a defendant
with attempting to murder someone who was unintended.
That specific intent cannot apply to two different
victims.
So therefore, that incoherent [sic] defense
does not apply to the transferred intent doctrine. But
in this case, we are not talking about incoherent [sic]
defense, we’re talking about a victim that suffered an
injury of that very type that the Defendant intended upon
his intended victim. (Emphasis added).
During his closing argument to the jury, the assistant State’s
attorney
presented
his
theory
in
support
of
the
charge
first–degree assault:
Now, the judge has instructed you on the doctrine of
transferred intent.
The State believes that the
Defendant in this case, and believes that the evidence
will show, that the Defendant in this case intended to
commit a serious bodily injury upon Jeffrey Stewart, the
man he was fighting, the man in the black shirt, and all
the evidence that you’ve heard from all the witnesses
supports that conclusion.
Let’s go through all the
evidence that shows that the Defendant was trying to
inflict a serious physical injury on Jeffrey Stewart.
* * *
Under the doctrine of transferred intent, it makes
sense. The doctrine makes sense. And the reason is, the
purpose of that doctrine is, so that people who have
formed a criminal intent and have taken action to bring
that criminal intent into fruition, they should not
benefit from having bad aim or just being unlucky. In
this case, the Defendant was trying to bring about a
criminal result to Jeffrey Stewart, and he just had bad
aim. He should not get the benefit of having bad aim.
He should be responsible because someone in fact did end
up with a serious physical injury, and that’s Sara
Juarez–Allender. And somebody should be responsible for
that injury, and that is the man who sits across this
courtroom from you today, the [appellant].
(Emphasis
-6-
of
added).
As noted, the jury found appellant guilty of first-degree
assault against
second-degree
Juarez,
assault
reckless
against
destruction of property.
endangerment
Kuyawa
and
against
Davis
and
Juarez,
malicious
At the sentencing hearing, appellant
moved for a new trial, based again, in part, on the inapplicability
of the doctrine of transferred intent.
That motion was also
denied.
In consideration of the severity of Juarez’s injuries, the
court
sentenced
appellant
to
twenty
years’
imprisonment
for
first–degree assault. The court also imposed a two year concurrent
sentence
for
reckless
endangerment
of
Juarez.
A
one
year
concurrent sentence for malicious destruction of property and two
consecutive
sentences
of
three
years’
imprisonment
second–degree assault conviction were also imposed.
for
each
Additional
facts will be set forth as warranted.
LEGAL ANALYSIS
I and II
SUFFICIENCY OF THE EVIDENCE and JURY INSTRUCTION
Appellant
initially
contends
that
the
evidence
was
insufficient to sustain his conviction for first-degree assault
because the trial court erroneously allowed the jury to apply the
-7-
doctrine of transferred intent in rendering its verdict.
We
reproduce the instruction to which appellant takes exception:
There exists under the law of Maryland the doctrine of
transferred intent.
Transferred intent means that
whatever state of mind the Defendant entertains as to his
intended target will carry over to any other victim, even
if that victim is an unintended target. If you find that
the Defendant’s state of mind towards Jeffery Stewart was
willful and deliberate, then his intent can be said to
carry over to Sara Juarez, notwithstanding that she may
have been an unintended victim.
The doctrine of
transferred intent does not apply to the crime of assault
with intent to disable.
Generally,
if
there
are
evidentiary
facts
sufficiently supporting the inference made by the trial
court, the appellate court defers to the fact-finder
instead of examining the record for additional facts upon
which a conflicting inference could have been made, and
then conducting its own weighing of the conflicting
inferences to resolve independently any conflicts it
perceives to exist.
The resolving of the conflicting
evidentiary inferences is for the fact-finder.
State v. Smith, 374 Md. 527, 547-48 (2003).
Three principles must be adhered to in our analysis:
(1) we must give great deference to the trier of facts’
opportunity to assess the credibility of witnesses, weigh
the evidence, and resolve conflicts in the evidence,
(2) circumstantial evidence alone can provide a
sufficient basis upon which a trier of fact can rest its
determination of guilt, even for first degree murder, and
(3) we do not re-weigh the evidence or substitute our own
judgment, but only determine whether the verdict was
supported by sufficient evidence to convince the trier of
fact of the defendant’s guilt beyond a reasonable doubt.
Pinkney v. State, 151 Md. App. 311, 329 (2003).
In denying the appellant’s motion for judgment of acquittal,
the trial court analyzed the incident from which this appeal
emanates as follows:
-8-
Parties are involved in a fray in a bar. It seems like
the only innocent people in this case are the victims.
Miss Juarez has lost an eye. She’s scarred, probably for
life, with that disfigurement there.
In the Harrison case,3 this is a case where it’s an
attempted second degree murder. Going to a basketball
court, they start firing shots at somebody they thought
was a drug dealer.
The person that was killed was
nowhere in the vicinity or the zone of harm, as they
referred to it. Transferred intent didn’t apply there.
This is not an attempted second degree murder case. It’s
a first degree assault charge.
They refer to the zone of harm.
Clearly in
Applebee’s there was a zone of harm created by
[appellant’s] actions. He threw the bar stools. They
didn’t go far enough. He started throwing the glass.
Instead of going in her eye, it just as easily could have
cut her carotid artery. It could have killed her.
I don’t think that the Harrison case is on point.
It’s not a first degree assault case. I don’t think the
Ford4 case is on point. Likewise, that’s not a first
degree assault case.
He intended to commit serious
bodily harm based upon the testimony that I’ve heard at
this point. (Emphasis added).
Assault is defined in § 3-201(b) of the Criminal Law Article
as “the crimes of assault, battery, and assault and battery, which
retain their judicially determined meanings.”
delineates
assault
in
the
first
degree:
Section 3-202(a)(1)
“A
person
may
not
intentionally cause or attempt to cause serious physical injury to
another.”
Serious physical injury is defined as
(1) creates a substantial risk of death; or
(2) causes permanent or protracted serious:
3
Harrison v. State, 382 Md. 477 (2004).
4
Ford v. State, 330 Md. 682 (1993), superseded by statute,
Robinson v. State, 353 Md. 683 (1999).
-9-
(i) disfigurement;
(ii) loss of the function of any bodily member or
organ; or
(iii) impairment of the function of any bodily
member or organ.
Md. Code Ann., Criminal Law § 3-201(d) (2007).
In Gladden v. State, 273 Md. 383 (1974), the Court of Appeals
considered Gladden’s contention that he could not be convicted of
murder when his intent was to kill his drug supplier, but, missing
his target, he killed a twelve–year–old boy sitting in his living
room.
In affirming this Court’s decision, the Court expressly
adopted the doctrine of transferred intent, stating that “the
doctrine of ‘transferred intent’ is the law of Maryland and that
the mens rea of a defendant as to his intended victim will carry
over and affix his culpability when such criminal conduct causes
the death of an unintended victim.”
Id. at 405.
The doctrine was later applied in Ford, supra.
In that case,
Ford and three other young boys threw large landscaping rocks at
vehicles traveling on the Baltimore Beltway.
Several people in
those vehicles were injured and significant damage was done to many
vehicles.
Ford was convicted by a jury of one count of assault
with intent to maim, eleven counts of assault with intent to
disable, seventeen counts of assault and battery, six counts of
assault and seventeen counts of malicious destruction of property.
Id. at 689.
In his appeal to this Court, all but two of the
-10-
convictions for malicious destruction of property were affirmed.
See Ford v. State, 90 Md. App. 673 (1992).
In dictum, the Court of Appeals addressed the applicability of
the doctrine of transferred intent as it related to the charge of
assault with intent to disable and related crimes.
The Court
commented that
[t]he underlying rationale for the doctrine also suggests
that transferred intent should apply only when, without
the doctrine, the defendant could not be convicted of the
crime at issue because the mental and physical elements
do not concur as to either the intended or the actual
victim.
As Dean Prosser notes, “[t]he early criminal
cases were understandably preoccupied with mens rea,
moral guilt, and the obvious fact that if the defendant
was not convicted there would be no one to punish for the
crime.” Thus, transferred intent makes a whole crime out
of two halves by joining the intent as to one victim with
the harm caused to another victim. Transferred intent
does not make two crimes out of one. Where the crime
intended has actually been committed against the intended
victim, transferred intent is unnecessary and should not
be applied to acts against unintended victims.
Ford, 330 Md. at 711-12 (citations and footnote omitted).
The Court continued:
Transferred intent is equally inapplicable to other
circumstances where the subject crime is already
completed as to an intended victim, such as attempts or
other crimes that can be completed without the necessity
of physical contact.
Such crimes have one thing in
common-where the “bullet” ends up is superfluous to the
crime, so there is no need for the intent to “follow the
bullet” to link the crime’s mental and physical elements.
The crime at issue here, assault with intent to disable,
is such a crime. Because the elements of an assault with
intent to disable are (1) an assault and (2) an intent to
disable, the crime is complete regardless of whether the
projectile reaches its target. The requisite intent has
already been formed and the requisite assault has already
been committed; no intent need be transferred to complete
a crime.
-11-
Id. at 713.
The dictum in Ford was adopted in Poe v. State, 341 Md. 523
(1996).
In that case, Poe intended to kill his estranged wife by
shooting her, but instead the bullet traveled through his wife’s
arm and killed the daughter of his wife’s boyfriend.
At the close
of evidence, the court instructed the jury on the theory of
transferred intent as it applied to the killing of the boyfriend’s
daughter.
Id. at 527.
Poe was convicted of murder of the daughter
and attempted murder of his wife.5
On appeal, he claimed that the
doctrine of transferred intent was inapplicable because he depleted
all of his intent when he successfully shot his intended victim.
Id. at 528.
In rejecting Poe’s contention, the Court held:
In Ford, we made clear that if a defendant intends to
kill a specific victim and instead wounds an unintended
victim without killing either, the defendant can be
convicted only of the attempted murder of the intended
victim and transferred intent does not apply. This is
not true where, as is the case sub judice, the defendant
intends to murder one victim and instead kills an
unintended victim.
Here, transferred intent applies
because there is a death and the doctrine is necessary to
impose criminal liability for the murder of the
unintended victim in addition to the attempted murder of
the intended victim. In Ford, this Court asserted that
the doctrine is used when the defendant fails to commit
the crime intended upon the targeted victim and completes
it upon another. Thus, the doctrine should be applied to
the instant case.
Id. at 530 (internal citations and emphasis omitted) (emphasis
added).
5
Poe received a life sentence without the possibility of
parole for the murder conviction and thirty years (to be served
consecutively) for the attempted murder conviction.
-12-
To summarize the evolution of transferred intent and its
current application under Maryland law, there is no conflict among
legal authorities that the principle applies when lethal force is
directed toward an intended victim, but misses its target and kills
an unintended victim.6
Likewise, it is settled Maryland law that
there can be no transferred intent when the unintended victim is
neither killed nor injured.7
More problematic was the so-called “intermediate position,”
where the unintended victim is actually hit though not killed.
Judge Moylan, writing for this Court in Harvey v. State, 111 Md.
App. 401, 425-28 (1996), analyzed the fact pattern under review in
the case at hand:
It is the intermediate situation – when the
unintended victim is actually hit though not killed –
that has divided the Court of Appeals.
In State v.
Wilson, 313 Md. 600, 546 A.2d 1041 (1988), the two
defendants fired four or five shots at a fleeing Marvin
Brown, indisputably intending to kill him. They missed
Brown, however, and one of the errant shots hit Juan
Kent, an innocent bystander. Kent survived his wound,
but suffered paralysis on one side of his body and brain
damage that left him unable to walk or to speak. The
defendants were convicted of two separate counts of
attempted first-degree murder, one with respect to the
6
Gladden v. State, supra; Evans v. State, 28 Md. App. 640,
687-88 (1975).
7
See Harrod v. State, 65 Md. App. 128, 137 (1985)(holding that
where thrown hammer missed intended victim and narrowly missed
infant in a crib, “[t]he absurd result [of extending the doctrine]
would be to make one criminally culpable for each unintended victim
who, although in harm's way, was in fact not harmed by a missed
attempt towards a specific person. We refuse, therefore, to extend
the doctrine of transferred intent to cases where a third person is
not in fact harmed.”
-13-
intended victim, Marvin Brown, and the other with respect
to the unintended victim, Juan Kent. 313 Md. at 601-02,
546 A.2d 1041.
We observed in Harvey that the Wilson Court, under traditional
attempt law, had no difficulty affirming the conviction for the
attempted first-degree murder of Marvin Brown. We then pointed out
that the Court affirmed the conviction in the case of Juan Kent on
the ground that the actual battery inflicted on him was the actus
reus and that the murderous mens rea intended for Marvin Brown had
transferred to Juan Kent. The Wilson Court, we said, held that “the
doctrine of transferred intent applies to the crime of attempted
murder and . . . the mens rea or specific intent of a defendant as
to
his
intended
culpability
when
victim
such
unintended victim.”
will
criminal
carry
Id. at 425.
over
conduct
and
causes
determine
injury
to
his
an
We pointed out that, in earlier
dicta in the same opinion, the Court of Appeals had also concluded
that its application of the transferred intent doctrine would
apply, not only to attempted murder, but also to the inchoate crime
of assault with intent to murder.
We then chronicled the Court’s
later view of Wilson:
Five years after Wilson, a four-judge majority in
Ford v. State, 330 Md. 682, 625 A.2d 984 (1993), in dicta
to be sure but in extensive and well-considered dicta,
effected a massive correction of course.
It reasoned
that the Wilson rationale was incorrect and that the
transferred intent doctrine should not have been applied
by Wilson to any of the inchoate homicides such as
attempted murder or attempted voluntary manslaughter or
assault with intent to murder.
Judge Chasanow argued
that the transferred intent doctrine is appropriate for
-14-
a consummated homicide perpetrated on an unintended
victim but has no similar applicability in the case of
inchoate homicides. The Ford majority stated flatly, 330
Md. at 714, 625 A.2d 984:
We believe Wilson should not have applied
transferred intent to attempted murder.
(Footnote omitted). In Poe v. State, 341 Md. 523, 529,
671 A.2d 501 (1996), the Court of Appeals summarized its
earlier statement in Ford:
We stated in Ford that transferred intent
does not apply to attempted murder.
Id.
(disapproving application of the doctrine of
transferred intent to attempted murder in
State v. Wilson, 313 Md. 600, 546 A.2d 1041
(1988)). . . . [T]he doctrine of transferred
intent does not apply to attempted murder when
there is no death.
Poe made it clear, 341 Md. at 530, 671 A.2d 501, that
when the unintended victim is not killed, the transferred
intent doctrine will not apply:
In Ford, we made clear that if a defendant
intends to kill a specific victim and instead
wounds an unintended victim without killing
either, the defendant can be convicted only of
the attempted murder of the intended victim
and transferred intent does not apply. This is
not true where, as in the case sub judice, the
defendant intends to murder one victim and
instead kills an unintended victim.
Id. at 426–27.
We
did
note,
parenthetically,
that
Judges
Rodowsky
and
Karwacki, in a concurring opinion, had taken “strong exception to
the effort to repudiate Wilson.”
Id. at 427.
Citing Harvey, in Harrison v. State, 382 Md. 477, 508 (2004),
the Court of Appeals reaffirmed the principle that transferred
intent does not apply where the unintended victim is injured, but
-15-
not killed:
The most compelling reason why we reject the
doctrine of transferred intent as applied to crimes of
attempt is that it is not necessary to make “a whole
crime out of two halves by joining the intent as to one
victim with the harm caused to another victim,” the
purpose for which it was conceived. Ford, 330 Md. at
712, 625 A.2d at 998. When the unintended victim has not
suffered a fatal injury, the defendant already has
committed a completed crime against the intended victim,
and the seriousness of that crime is as great as if the
intent were transferred to the unintended victim.
Further, although not in this case, a defendant may
be convicted of a crime against an unintended victim with
the use of “concurrent intent” and without the use of
“transferred intent.”
Such a defendant also may be
convicted of criminal battery, and as Judge Moylan
suggested in Harvey v. State, 111 Md. App. 401, 430, 681
A.2d 628, 643 (1996), “the crime of reckless endangerment
is also available to pick up much of the slack and to
make resort to the transferred intent doctrine less
compelling.”
There is little, if any, utility in
extending the doctrine of “transferred intent” to
inchoate crimes such as attempted murder.
Most recently, the issue was revisited in State v. Brady, 393
Md. 502, 522 (2006), in which the Court of Appeals dismissed the
State’s argument that the discussion in Ford of the application of
transferred intent to inchoate offenses is mere dictum, holding
that the Court had “transformed that dictum into precedent when it
decided Poe” and that “Poe made clear, 341 Md. at 530, 671 A.2d
501, that when the unintended victim is not killed, the transferred
intent doctrine will not apply.”
The
State
seeks
solace
(Internal quotations omitted).
in
what
it
perceives
to
be
a
substantive change from the former “statutory scheme,” Article 27,
§ 386 to the “new statutory scheme,” Md. Code Ann., Crim. Law, § 3-
-16-
202 (2006), in its attempt to salvage appellant’s conviction.
The
State acknowledges that, in Brady, supra, Ford, supra, and Williams
v. State, 117 Md. App. 55 (1997), this Court and the Court of
Appeals “have held that transferred intent does not apply to
inchoate crimes such as attempted murder or assault with intent to
maim or disable.”
The State nevertheless argues that it should
apply under § 3-202, noting: “Neither this court nor the Court of
Appeals, however, has commented upon the applicability of the
transferred intent doctrine to the revamped assault and battery
statutory scheme, specifically, first-degree assault.”
The State contends that “[t]he crime of first-degree assault,
as codified by Criminal Law § 3-202, is different from inchoate
homicide charges in that it expressly encompasses both the inchoate
and completed act of intentionally harming another.”
statute, the State posits: “Criminal Law
Citing the
§ 3-202 states, in
pertinent part, ‘A person may not intentionally cause or attempt to
cause serious physical injury to another.
There is no separate
crime of attempted first-degree assault.’” (Emphasis added by the
State).
The State concludes, “Unlike cases involving attempted
murder, where the perpetrator’s intent toward the intended victim
was
unfulfilled
with
respect
to
the
unintended
victim,
here
Pettigrew’s intent to cause serious injury was realized - his crime
was not inchoate, but complete.”
Finally, the State, while making
the valiant attempt to bring the facts of the instant case within
the doctrine of transferred intent, with admirable candor, seems to
-17-
make a concession when it recognizes that Harvey observes that
“many of the doctrines unique to homicide, including transferred
intent, ‘do not travel well to other criminal climes’ when finding
transferred intent inapplicable to assault with intent to murder.”
The goal, urges the State, in applying the transferred intent
doctrine is “to ensure that Pettigrew’s mens rea with respect to
his
intended
victim
can
be
paired
with
the
actus
reus
that
profoundly affected Juarez, the unintended victim.” Dispositive of
the State’s position and fatal to its ultimate rationale for
application of the doctrine to § 3-202 is the very passage from
Harvey cited by the State, which we set forth more fully here:
At a very fundamental level, there is an argument, based
on internal consistency, against using the transferred
intent doctrine in cases of inchoate homicide. We are
concerned, after all, with a single crime-assault with
intent to murder (or its common law analogue of attempted
murder).
It would be randomly haphazard to say with
respect to that single crime that the transferred intent
doctrine sometimes applies and sometimes does not. If
transferred intent will not be used (as it is not) to
elevate a simple assault into an assault with intent to
murder when the victim is not touched, it makes no sense
to say that precisely the same crime will be elevated
into an assault with intent to murder when the victim is
touched. That would be to make a distinction, within the
single crime of assault with intent to murder, between
those
instances
when
the
assault
is
of
the
attempted-battery variety (no touching) and those
instances when the assault is of the actual-battery
variety (touching).
Guilt of assault with intent to
murder should not rise or fall on the immaterial
happenstance of whether the victim is touched.
The
problem, after all, is one of mens rea and not of actus
reus.
Harvey, 111 Md. App. at 431 (emphasis added).
Initially, the flaw in the State’s reasoning is that it seeks
-18-
to “pair” the actus reus with the mens rea.
other
decisions
cited
herein
make
clear,
As Harvey and the
notwithstanding
the
debilitating and permanent injury suffered by Juarez, it is the
mens rea which is determinative of whether transferred intent
should be applied in the appropriate case.
Further
explicating
the
centrality
of
mens
rea
in
a
determination of why transferred intent is inapplicable to inchoate
crimes, Harvey continues:
In Ford v. State, 330 Md. 682, 715, 625 A.2d 984 (1993),
Judge Chasanow noted that in cases involving the inchoate
criminal homicides, the random factor of whether or not
a physical injury occurred is immaterial:
A related reason why transferred intent cannot properly
apply to attempted murder derives from the fact that the
crime of attempted murder requires no physical injury to
the victim. Although in Wilson the bystander was in fact
injured, injury is not an essential element of attempted
murder.
There is one further argument based on logical
inconsistency.
If an assault with intent to murder
misses its target and hits an unintended victim and the
aggravating mens rea were then to be “transferred” so as
to transform the otherwise simple battery of the
unintended victim into a constructive assault with intent
to murder, what are the limits of such logic? Suppose the
assaultive force that misfired had instead been unleashed
with the intent to rob the targeted victim; would the
otherwise simple battery of the unintended victim thereby
become a constructive assault with intent to rob? Suppose
the assaultive force that misfired had been with the
intent to rape the targeted victim; would the otherwise
simple battery of the unintended victim thereby become a
constructive assault with intent to rape? Could it be an
assault with intent to rape, moreover, even if the
unintended victim were a man? Why should one aggravating
mens rea be transferable but others not? The use of an
acknowledged fiction to manipulate specific intent,
although necessary to establish guilt in the context of
consummated criminal homicide, would degenerate into a
-19-
carnival in the very different context of inchoate
criminal homicide. There is, moreover, no reason to push
the fiction beyond the limits of its necessary utility.
Id. at 431–32 (emphasis omitted).
Summarizing all of the above reasons for the more restrictive
application of transferred intent, the Harvey Court concluded:
Consummated criminal homicide is, in the last analysis,
sui generis. Many of its complexities, such as the
transferred intent doctrine, simply do not travel well to
other criminal climes. There is, moreover, no reason of
necessity for making the transferred intent doctrine
travel to climes other than that of actual, consummated
criminal homicides. For the rest, the actuality of the
real mens rea properly combined with its precisely
related actus reus is enough to establish guilt at the
appropriate level without any necessary resort to an
intention-shifting legal fiction. The inchoate criminal
homicides are in no need of such a device.
Id. at 432 (emphasis added).
The State’s argument, in essence, is that, under the language
of § 3–202, the proscription that one “may not intentionally cause
or
attempt
to
cause
serious
physical
injury
to
another”
distinguishes it from inchoate homicide charges, there being no
separate crime of attempted first–degree assault.
The State does
not assert that first–degree assault is no longer an inchoate
crime, but rather that it is different from inchoate homicide
charges.
first–degree
While
there
assault,
an
is
no
attempt
separate
is
crime
expressly
of
attempted
stated
as
an
alternative, under § 3–202, to actually causing serious physical
injury to another.
The Court of Appeals, in Robinson v. State, 353 Md. 683 (1999)
-20-
explained that the 1996 assault statutes, unlike the statutes which
simply established penalties for the categories of common-law
felonious homicides, subsumed and combined all statutory offenses
of assault then existent as well as all common law forms of assault
and battery into a single and comprehensive statutory scheme.
at 695.
Id.
Holding that the 1996 assault statutes represent the
entire subject matter of assault crimes, the Court concluded “that
the new assault statutes, effective October 1, 1996, abrogated the
common law offenses of assault and battery.”
Id.
Significantly,
under Md. Code Ann., Criminal Law, § 3-201(b), “Definitions,”
"Assault" is defined as “the crimes of assault, battery, and
assault and battery, which retain their judicially determined
meanings.”
(Emphasis added).
Thus, although § 3-201 has subsumed
and combined all statutory and common law forms of assault and
battery into a single and comprehensive statutory scheme, the
judicially determined meanings” remain unchanged; it is only a more
precise delineation of culpability based on intended harm, as
gleaned from acts, the natural consequences of which are fatal or
likely to cause serious or permanent injury.
More
luminously
importantly,
clear
that
the
the
above
passage
doctrine
of
from
Harvey
transferred
makes
intent
is
inapplicable to inchoate offenses and, specifically, to instances
where the unintended victim is injured, but not killed. Apparently
sensing that the doctrine of transferred intent may not carry the
day, the State, alternatively, asserts that appellant’s first-21-
degree assault conviction is supported by the theory of concurrent
intent.
CONCURRENT INTENT
Appellant initially responds to the State’s interposition of
the
doctrine
of
concurrent
intent
as
an
issue
on
appeal,
protesting, “Recognizing that transferred intent is inapplicable
here, the State, for the first time, argues that the theory of
concurrent intent establishes the requisite specific intent to
cause serious physical injury to Mrs. Juarez.
Reasoning that
“[appellant] should not be rewarded because his aim was bad,” the
prosecution doggedly argued to the court that “[appellant] should
not be given the benefit of not having that doctrine of transferred
intent apply in this case, and this is specifically, this is the
prototypical, I would say, for applying a transferred intent
doctrine.”
The State further maintained, “The purpose of the doctrine is
basically to bridge two halves of the crime together . . . and the
transferred intent doctrine bridges the two together so you have a
completed crime.”
In an attempt to distinguish Harrison, the
prosecutor told the court, “But in this case, we’re not talking
about incoherent [sic] defense, we’re talking about a victim that
suffered an injury of that very type that [appellant] intended upon
his intended victim.
Of greater significance regarding whether concurrent intent
-22-
was presented at the trial level, the assistant State’s attorney,
after reminding the jury that the judge had instructed it “under
the doctrine of transferred intent,” then reasoned that “[the
doctrine] makes sense, [a]nd the reason is, the purpose of that
doctrine is, so that people who have formed a criminal intent and
taking action to bring that criminal intent into fruition, they
should not benefit from having bad aim or just being unlucky.”
From
the
foregoing,
not
only
was
the
theory
of
the
prosecution’s case based on the doctrine of transferred intent, the
assistant State’s attorney was persistent and, in support of his
argument,
attempted
to
distinguish
previous
decisions,
e.g.
Harrison, in which the doctrine had been found to be inapplicable.
The jury was told in excruciating detail, conceptually, the essence
of transferred intent.
The State argues that the concept was
before the jury, just not that it had been denominated as such.
To
the contrary, the State labored to convey to the jury that the
rationale for its verdict of guilty of first-degree assault should
be transferred intent.
Evidence intended to demonstrate the proximity of Juarez to
the site of the melee had been offered, and the evidence was
irrefutable that appellant had indiscriminately hurled missiles in
an erratic and frantic manner.
And, although the Court, in its
analysis, made reference to the concept of “zone of harm,” in
noting that transferred intent didn’t apply in Harrison, and the
Court further concluded, “Clearly in Applebee’s there was a zone of
-23-
harm created by [appellant’s] actions, the doctrine of concurrent
intent was never mentioned.8
Because it was never mentioned,
appellant’s counsel was never afforded the opportunity to argue
that the doctrine of concurrent intent did not apply, but, more
importantly, the jury was never instructed as to the appropriate
analysis in its deliberations to determine whether concurrent
intent
applied.
“followed
the
Rather
bullet”
than
under
conceptualizing
a
transferred
that
intent
the
intent
analysis,
comprehending the concept of “zone of harm” was required for the
jury to apply the concept of concurrent intent.
See Harrison,
supra.9
That the prosecution did not present – and have the concept
explicitly delineated – to the jury, is dispositive of this issue.
The holding of the Court of Appeals in Garrett v. State, 394
Md. 217, 226–27 (2006), is eerily on point:
The application of Brady to the present case is clear,
and we, therefore, reverse the Court of Special Appeals's
judgment with respect to Garrett's two convictions of
8
It appears that the court, in considering only transferred
intent, rather than concurring intent was merely responding to the
theory of the State’s case, as framed by the prosecutor.
9
Concurrent intent is succinctly explicated in Harrison:
In concurrent-intent analyses, courts focus on the “means employed
to commit the crime” and the “zone of harm around [the] victim.”
Ford, 330 Md. at 717. The essential questions, therefore, become
(1) whether a fact-finder could infer that the defendant
intentionally escalated his mode of attack to such an extent that
he or she created a “zone of harm,” and (2) whether the facts
establish that the actual victim resided in that zone when he or
she was injured. Id. at 495.
-24-
attempted first-degree murder because those convictions
should have been reviewed under a plain error analysis
rather than affirmed under the legal theory of concurrent
intent, a theory that was interjected for the first time
on appeal. By utilizing plain error analysis, the panel
in the present case should have reversed Garrett's
convictions of attempted first-degree murder after the
jury had been instructed on transferred intent, for as we
stated in Brady, “[a]s articulated in Poe, if a defendant
intends to kill a specific victim and instead wounds an
unintended victim without killing either, the defendant
can be convicted only of the attempted murder of the
intended victim and transferred intent does not apply.”
The State relies on Cox v. State, 397 Md. 200, 212 (2007), in
arguing that an oblique reference to concurrent intent, without
specifically
arguing
the
application
of
the
doctrine,
should
provide the basis for upholding the conviction for first–degree
assault.
The State’s reliance on Cox is misplaced.
In that case,
the Court of Appeals considered Petitioner’s argument that, because
the State failed to argue to the motions court that the arrest
constituted
an
intervening
circumstance,
preserve that argument for appellate review.
the
State
failed
to
The Court ultimately
held
that the issue as to the legality of the arrest was
plainly preserved, for appellate review, even though the
State did not use the “magic words,” “dissipate” or
“attenuate,” to explain why “the initial encounter [did]
not matter”-because of the intervening event, i.e., the
discovery of an outstanding warrant and an arrest
pursuant thereto. Thus, we are satisfied that the issue
was put forth at the trial level and the contention that
there was an intervening circumstance is properly before
us.
Id. at 212 (footnote omitted).
The holding in Cox provides us with no guidance regarding the
-25-
preservation issue before us in this case.
What is strikingly
different is that, in Cox, a legal issue was presented to one
learned in the law, a motions judge, who we presume comprehended
the
issue
advanced
by
the
State,
i.e.,
the
dissipation
or
attenuation, vel non, of the effect of the initial encounter with
the police.
Here, by contrast, jurors, unlearned in the law, who
were probably sorely tested in grasping the concept of transferred
intent, are expected to have incorporated into the deliberative
process the concept of concurrent intent, without it having been
properly presented to them. Patently, appellant’s conviction for
first degree assault was based on the State’s theory of transferred
intent.
The State may not now seek to salvage the conviction on a
theory not presented to the jury.
III
MERGER
In light of our decision, supra, that the conviction for
first-degree assault must be reversed, no longer do two convictions
based on offenses containing the same elements and growing out of
the same facts remain. Because we are not persuaded that, under the
circumstances of the case at hand, the infirmity of the proceedings
regarding the first-degree assault conviction in any way affected
-26-
the jury’s verdict for reckless endangerment, we shall not disturb
the judgment of conviction for reckless endangerment.
JUDGMENT OF CONVICTION FOR FIRST
DEGREE ASSAULT REVERSED; CONVICTIONS
FOR REMAINING OFFENSES AFFIRMED;
COSTS TO BE PAID TWO THIRDS BY
APPELLANT AND ONE THIRD BY BALTIMORE
COUNTY.
-27-
