B. Sifrit v. State
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Benjamin Sifrit v. State of Maryland No. 142, September Term, 2003 DUE PROCESS INCONSISTENT THEORIES OF PROSECUTION For a due process violation to exist the inconsistency must exists at the core of the State s case. Discrepancies based on rational inferences from ambiguous evidence will not support a due process violation provided the multiple theories are supported by consistent underlying facts. EVIDENCE CHARACTER EVIDENCE OTHER CRIMES, WRONGS, OR ACTS The trial court is required to conduct a three-part test before admission of other crimes, wrongs, or act evidence may be admitted; (1) does the evidence fit within one or more of the states exception to Md. Rule 5404(b); (2) has the defendant s involvement in the other crime, wrong or act been established by clear and convincing evidence; (3) does the probative value of the evidence out weigh the prejudicial effect of its admission. EVIDENCE CHARACTER EVIDENCE OTHER CRIMES, WRONG, OR ACTS Evidence is deemed an act within the meaning of Md. Rule 5-404(b) if the evidence relates to an activity or conduct, not necessarily criminal, that tends to impugn or reflect adversely upon one s character, taking into consideration the facts of the underlying lawsuit. SENTENCING MERGER REQUIRED EVIDENCE TEST Where multiple offenses arise from the same act or acts and all of the elements of one offense are included in another offense, except that the later offense contains a distinct element(s), the former merges into the later. This process is known as the required evidence test and when satisfied, the offenses merge as a matter of course. SENTENCING MERGER RULE OF LENITY When the required evidence test is not satisfied but multiple offenses are based on the same act or acts, the principle of statutory construction known as the rule of lenity may still require merger. The rule of lenity applies when the Court finds that the legislature did not intend, under the circumstances involved in the particular case, for a person to be convicted of two particular offenses growing out of the same act or transaction. In the Circu it Court for M ontgom ery County Criminal No. 96895 IN THE COURT OF APPEALS OF MARYLAND No. 142 September Term, 2003 ______________________________________ BENJA MIN A DAM SIFRIT v. STATE OF MARYLAND ____________________________________ Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. ______________________________________ Opinion by Greene, J. ______________________________________ Filed: August 27, 2004 A jury in the Circuit Court for Montgomery County, on April 9, 2003, convicted Benjamin Sifrit ( Benjamin ), of three crimes in connection with the death of Martha Crutchley. The crimes are: Count One, murder in the second degree, Count Three, assault in the first degree, and Count Nine,1 accessory afte r the fact. 2 Benjamin s convictions and this appeal arise out of events that occurred over the Memorial Day weekend 2002 in Ocean City, Maryland, resulting in the death of two people, Martha Crutchley and Joshua Ford.3 In a related case, a separate jury in the Circuit Court for Frederick County, on June 10, 2003, convicted Erika Sifrit ( Erika ), Benjamin s wife, for her complicity in the murders of Ms. Crutchley and Mr. Ford. We granted Erika s petition for writ of certiora ri. Sifrit v. State, 380 Md. 230 (2003). Subsequently, while Benjamin s appeal was pending in the Court of Spe cial Appeals, we gra nted his petition for writ of certiorari before consid eration o f his cla ims by the interme diate ap pellate c ourt. Sifrit v. State, 381 Md. 324 (2004). Even though many of the facts, issues, and legal arguments in these two cases overlap we answer the issues and contentions of the parties in separate opinions of this Co urt. 1 The indictment indicates that Count Nine is accessory after the fact. The verdict sheet, however, refers to accessory after the fact as Count Seven. The correct count number for the charge of accessory after the fact is Count Nine. 2 3 The same jury, acquitted Benjamin of the murder of Joshua Ford and related offenses. Due to extensive pretrial publicity, Benjamin s case was removed from the Circuit Court for Worcester County and transferred to the Circuit Court for Montgomery County. Benjam in raises the fo llowing issu es: 1. Whether the State violated [Benjamin s] fundamental right to due process by presenting factually inconsistent theories at [Benjamin s] trial and that of his wife, Erika, both of whom were charged with committing the same crimes. 2. Whether the trial court [erred] in admitting the testimony of Michael McInnis regarding a conversation that [Benjamin] had with McInnis three years bef ore the m urders a s prior b ad acts e videnc e. 3. Whether the trial court erred in refusing to allow the defense to present evidence regarding Erika s ability to commit the crimes alone. 4. Whether the trial court erred in imposing separate sentences for second degree m urder and first degree a ssault. We sha ll affirm Be njamin Sif rit s conviction s. A due p rocess viola tion does n ot exist in a situation involving multiple trials based upon a single criminal transaction, unless the prosecution presents inconsistent theories and the inconsistency exists at the core, not the margins, of the State s case. It is not enough for a due process violation that there are discrepancies because of rational inferences drawn from ambiguous evidence, provided that the multiple theories are supported by consistent underlying facts. In the present case, the State s theory that Benjamin and Erika committed the criminal offenses together as a team rem ained con sistent throug hout both trials. Any incon sistency in inferences or emphasis placed on particular facts by the State were consistent with the State s u nderlying theory of the case and did not vio late Be njamin s right to due pro cess. In addition, we discern no reversible error in the trial court s rulings with regard to the admissibility of the testimony of Michael McInnis and the exclusion of the testimony of -3- Elizabeth Sifrit. Finally, we shall vacate the sentence imposed for Count Three, first degree assault, treating it, for sentencing purposes, as merging with the conviction for second degree murder, Count One. I. On Friday, May 24, 2002, Martha Crutchley and her boyfriend, Joshua Ford, drove from Virginia to Ocean City, Maryland, for the Memorial Day weekend. Erika and her husband Benjamin were also vacationing in Ocean City over the holiday weekend. On Saturday night, May 25, 2002, the Sifrits met Ms. Crutchley and Mr. Ford on a bus on their way to Seacrets, a popular Ocean City nightclub. The Sifrits did not have the exact change for the fare so Ms. Crutchley and Mr. Ford offered to pay the Sifrits fare if they would buy them a drink when they arrived at Seacrets. The foursome and two other people from the bus, friends Anne Carlino and Jeff Hysee, spent the rest of the evening togethe r at Seac rets. What ha ppened in the early morn ing hours f ollowing the night at S eacrets is unknown. We do know, however, that at 3:00 a.m. on Sunday, May 26, 2002, Erika called 911 claiming that people she did not know were in her condominium unit and she could not f ind her pu rse. She w as afraid I m going to h ave a robb ery here. The call abruptly ended and no one was dispatched to the condominium. On Tuesday, May 28, 2002, one of Ms. Crutchley s co-workers notified the Fairfax City police that Martha Crutchley failed to show up at work following the Memorial Day -4- weekend. Fa irfax City police contacted the O cean City police who f ound Ms. C rutchley s car outside the condominium where she and Mr. Ford were staying for the weekend. The police found the couple s belongings left in their condominium as if they had just stepped out. Concerned about Ms. Crutchley and Mr. Ford, the police began to search actively for them. On May 31, 2002, around midnight, the Ocean City Police Department responded to an alarm call from the closed-for-the-night Hooters Restaurant and Bar merchandise store on 122nd Street in Ocean City. There they found Erika and Benjamin loading Hoote rs merc handis e into the ir Jeep C heroke e. The c ouple w ere plac ed in ha ndcuf fs. Upon searching the couple, the police found a 9 millimeter handgun and a knife on Benjamin and a fully-loaded .357 magnum revolver tucked into Erika s blue jeans in the small of her back. Another knife was found on Erika. Discovered in the Sifrits car were a .45 calibre gun, ski masks, flex cuffs, and tape.4 The two were arrested and charged with burg lary. At the scene of the burglary, Erika told the officers that she had anxiety problems and that she needed her Xanax and Paxil from a brown leather pouch in her purse located in the front of the Jeep. One of the police officers, Sgt. Beene, looked in Erika s purse for the pills. He found only one type of pill inside the brown leather pouch. Sgt. Beene continued to look for the other type of pill inside a red pouch because he noticed medicine 4 Investigators later found other items in the Jeep including but not limited to a knife, gloves, and undeveloped film. -5- bottles in that pouch. When the officer did not find the second type of pill in the red pouch he looked in a zippered pouch in the back of the purse. There he discovered four spent .357 magnum shell casings and one live round. The sergeant continued to look for the second type of pill in a gray change purse, also inside Erika s purse, and found the iden tification card s of M r. Fo rd an d M s. Cr utch ley. 5 Fearing for the safety of Ms. Crutchley and Mr. Ford, the police ordered an immediate search of the Sifrits condominium. Upon entering the Sifrits condominium, the police observed photographs and two bullets on a glass table. The pictures were of the Sifrits, Ms. Crutchley, and Mr. Ford, taken before the murders. Both of the bullets on the table had been fired from the .357 magnum recovered from Erika at Hooters, and one of the bullets had Mr. Ford s blood and tissue on it. Police also found a key to Ms. Crutchley and Mr. Ford s condominium on another table. Crime scene technicians found bloodstains in the Sifrits master bathroom on the top of the counter, the underside of the counter top, the floor, the floor under the vanity, the back side of the bottom drawer of the vanity, under the mirror, under the baseboard, under the hot tub faucet, on the hot tub step, on a sailboat candle holder on the hot tub, on the window, and in the shower. Swabs were taken from these bloodstains, 5 There was also a silver ring with a dragon engraving found in Erika s purse that was later identified as belonging to Mr. Ford. DNA testing revealed blood from both Joshua Ford and Martha Crutchley on the ring. Ms. Crutchley was a major contributor to the DNA sample found on the ring and Mr. Ford was a minor contributor, according to a forensic chemist for the State of Maryland. -6- which were a ll later ide ntified a s match ing the D NA o f either M s. Crutc hley or M r. Ford. There was also a hole in the back wall of the bathroom, fresh paint on the wall, and numerous cleaning supplies on the floor next to the bathroom door. The cleaning supplies, it was later discovered, had been purchased on Sunday, May 26, 2002, the day after Martha Crutchley and Joshua Ford were murdered. The police ultimately found the dismembered bodies of Martha Crutchley and Joshua Ford in a Delaware landfill. The only part of Ms. Crutchley that was recovered was her left leg, consequently, her cause of death was never determined. Police recovered the torso and both arms of Mr. Ford. Two bullets fired from the .357 magnum recovered from Erika at Hooters on the night of the burglary were found in M r. Ford s torso. The State s theory in both cases was that after leaving Seacrets that night, the two couples h ad returned to the Sifrits co ndomin ium. Onc e in the con dominium , the Sifrits engag ed in a missing purse g ame in which they claim ed Erik a s purs e was m issing. They demanded the other couple find the purse and when it couldn t be found, somehow got them into the upstairs bathroom where both Sifrits shot Mr. Ford and in some other manner killed Ms. Crutchley. The team then cut up the victims bodies and disposed of them in trash dumpsters. The State s theory is based, in part, on the testimony of Melissa Seling ( Melissa ) who m et the Sif rits the nig ht of M ay 29 thro ugh he r friend , Justin T odd W right ( T odd ). -7- Melissa testified that when she caught up to T odd that night, he and the Sifrits were intoxicated and she was the only one who was sober. Melissa joined the Sifrits and Todd at a couple of bars, but she did not drink. At the end of the evening, Melissa was worried about Be njamin s ab ility to drive so she a greed to fo llow the S ifrits back to th eir condominium. When the four of them arrived at the condominium, Melissa, at Benjamin s urging, helped Erika up to the condominium because she seemed so intoxica ted th at she mig ht fa ll over w ithout he lp. O nce a t the d oor, Erik a loc ated her k eys in her purse and opened the door with no problem. Erika began showing Melissa around the condominium. Within 5-10 minutes of having the purse at the door, Erika and Benjamin claimed that someone had taken Erika s purse and that Melissa had to look for it. At some point during the search for the purse, Benjamin brandished a gun and became more adamant about them finding the purse. Benjamin made a number of statements d uring the se arch regard ing people who ha d been the re before w ho had tried to rip them off and that he was doing the world a justice by ridding the earth of bad people. Melissa testified that he also told her if we ripped them off . . . he would kill us the same way he killed those other people. In her statement to police and on re-crossexamination in Benjamin s trial, Melissa acknowledged that she was not clear in her recollection of whether Benjamin had said just like I killed the other people or just like we killed the othe r people (e mphasis a dded). M elissa testified tha t she felt -8- threatened by the gun and asked that it be put away. During the search, Melissa noticed a bullet ho le in t he bathroom door, wh ich h ad been r emo ved from its hinges. Ul tima tely, Benjam in discover ed the purs e in a location that had pre viously been s earched. B enjamin also sat down with Melissa to show her his gun and what he called Erika s gun, the .357 magn um use d to kill Jo shua F ord. At his trial, Benjamin took the stand in his own defense. He denied any involvement in the actual killing of the two victims. Benjamin testified that he left Seacrets with his wife, Martha Crutchley, and Joshua Ford and got on a bus. When the bus stopped at the condominium where Ms. Crutchley and Mr. Ford were staying, Erika got off the bus with them while Benjamin returned to their condominium alone. Once there, however, Benjamin realized he did not have a key to the unit, so he went and passed out in the couple s jeep. At some time later, Benjamin claims his wife woke him up in the car asking why weren t you there for me? The two then returned to the condominium where he found Joshua Ford and Martha Crutchley dead on the bathroom floor. Benjamin admitted that it was his idea to dismember the bodies and that Erika helped him. He testified that he cut off both Ms. Crutchley s and Mr. Ford s heads, arms, and legs about an hour after they were killed. He then placed their body parts in trash bags, which Erika purchased for that purpose that morning while Benjamin dismembered the bodies, and then dumped their remains in a dumpster at a Food Lion in Rehoboth, Delaw are, at aro und 8 a .m. or 9 a .m. on S unday, M ay 26, 20 02. -9- Benjamin w as sentenced to thirty years imprisonment fo r second degree m urder, 25 years to run concurrent for first degree assault, and 5 years to run consecutive for accessory afte r the fact. 6 Additional facts will be provided throughout this opinion as necessary to our analysis. II. Inconsistent Theories of Prosecution Benjamin presents the same facts and argument as Erika Sifrit with regard to the issue of inc onsistent theo ries of prose cution. For th e reasons sta ted in our op inion filed in the case of Erik a Sifrit, w e find n o merit to Benja min's co ntention s. See Erika Sifrit v. State, __ Md. __ , __ A.2d __. III. Admission/Exclusion of Evidence Benjamin s second and third assignments of error relate to the admission and exclusion of certain testimon y; specifically, the admission of Michael M cInnis s testimony regarding the conversation about disposing of a dead body and the exclusion of testimo ny by Ben jamin s mothe r that Eri ka onc e pulled a gun o n her. 6 In a separate trial, Erika was convicted of the first degree murder of Mr. Ford, second degree murder of Ms. Crutchley, and theft charges related to the burglary at Hooters. She was sentenced to life imprisonment for the first degree murder of Joshua Ford, 20 years to run consecutive for the second degree murder of Martha Crutchley, and 18 months to run concurrent for the theft charges. -10- It is well establish ed in this State that the adm ission of ev idence is co mmitted to the con siderab le discre tion of th e trial cou rt. Merzba cher v. State , 346 Md. 391, 404, 697 A.2d 43 2, 439 (19 97) (internal c itations omitted ). Relevan t testimony is gen erally admiss ible and irreleva nt testim ony is not admiss ible. Id. (citing M d. Rule 5-402 ). Evidence is relevant if it has a tendency to establish or refute a fact that is at issue in the case. Merzbacher, 364 M d. at 404 (citing Md. R ule 5-401 ). We are generally loath to reverse a trial court unless the evidence is plainly inadmissible under a specific rule or principle of law or there is a clear showing of an abuse of discretion. Merzbacher, 346 Md. at 404-405, 697 A.2d at 439 (citing White v. Sta te, 324 Md. 626, 637, 598 A.2d 187, 192 (1991)). In Dorsey v . State, 276 Md. 638, 643, 350 A.2d 665, 668-669 (1976), we discussed the test for admissibility of evidence in a criminal trial. We said: The real tes t of admiss ibility of evidenc e in a crimina l case is the connection of the fact proved with the offense charged, as evidence which has a natural tendency to establish the fact at issue . . . . [E]vide nce, to be ad missible, mu st be relevan t to the issue s and m ust tend either to establish or dispr ove the m. Evidence which is thus not probative of the proposition at which it is dire cted is deem ed irrelevan t. (Interna l quotati ons an d citation s omitte d.) Admission of Michael McInnis s Testimony The trial court admitted the testimony of Michael McInnis ( McInnis ) regarding a conversation he had with Benjamin in 1999. The Court admitted the testimony pursuant to Md. Rule 5-404(b), governing the admission of evidence related to other crimes, -11- wrongs, or acts. Benjamin challenges the admission of this testimony. We affirm the trial judge s decision to admit the evidence pertaining to Benjamin s statement, but for different reasons. McInnis is a former Navy SEAL and friend of Benjamin. He was called by the State at Ben jamin s trial to re count a co nversation that he had with Ben jamin. M cInnis testified that in 1999 the two men were at a strip club having drinks when the discussion turned to ho w Ben jamin wo uld dispose of a body if h e ever killed s omeone . Accordin g to McInnis, Benjamin stated that he would do it by laying down plastic in a living room or an open s pace and then remo ve the arm s, legs and h ead with a knife. Th en he w ould remove the body in separate bags and dispose of the body in either the same dumpster over th e cours e of a m onth or in diffe rent du mpster s throug hout th e city in a sin gle trip. On cross-examination, McInnis stated that the conversation was a typical conversation between SEALs, that they were simply talking trash with guys over a few beers and that the conve rsation wa s not to be tak en seriously. O utside the pre sence of th e jury, McInn is testified that the conversation had, in fact, arisen when McInnis stated to Benjamin, I should send you to go whack my wife. To which, Benjamin responded, [y]eah sure. The conversation then turned to the discussion of how it could be done without getting caugh t. That is w hen the discuss ion abo ut quar tering an d dispo sing of the bod ies arose . Later, M cInnis aske d what the going rate w as, and Be njamin resp onded $ 20,000 to $40,00 0, $30,0 00. -12- On April 1, 2003, counsel for Benjamin made an oral motion to exclude the testimony of M cInnis. The defense a rgued that th e convers ation did no t amount to another crime, wrong, or act. The conversation was just a drunken discussion three years ago. The State countered that the act of offering to kill someone s wife for money constitutes solicitation to commit murder, which is a crime. The Court took a brief recess and then made an initial ruling that the testimony qualified under M d. Rule 5-404(b); howe ver, bef ore a fin al determ ination c ould be made on wh ether to a dmit the testimo ny, a hear ing w as ne cess ary ou tside the p rese nce o f the jury. Followin g the hearin g, the trial court h eld that the testim ony was ad missible pursuant to Rule 5-40 4(b), based on its interpreta tion that the co nversation amounte d to an offer or solicitation to commit murder. The trial court, relying on the case of Ridgew ay v. State, 140 M d. App . 49, 67, 7 79 A.2 d 1031 , 1041 ( 2000) , aff d, 369 Md. 165, 797 A.2d 1287 (2002), conducted the required three-part analysis regarding the admissibility of other crimes testimony and concluded that it was admissible. The testimony was admitted, without any reference to the statement about whacking McInnis s wife . Additionally, the court gave a cautiona ry instruction to the jury rega rding the prop er us e of t he te stimony. 7 7 Following McInnis s testimony, the court gave the following instruction to the jury: You have heard evidence just now that the Defendant had a conversation with Mr. McInnis, discussing with Mr. McInnis how to dispose of a body if someone had been murdered. You may consider this evidence only you may consider this evidence only -13- Benjam in contend s that the trial cou rt erred in adm itting this testimon y because it simply did not qualify as relevant evidence, as it neither tended to make the proposition asserted more or less probable, nor was [it] related logically to the matter in issue in the case. He further argues that the testimony does not fall within any of the stated exceptions embodied in Rule 5-404(b) and relied upon by the trial court. On appeal, the State contends that the conversation did not amount to prior bad acts evidence because the version actually admitted at trial, the version without reference to whacking McIn nis s w ife, did n ot fall w ithin the excep tions fo r the adm ission o f chara cter evid ence. We agre e with the S tate that evide nce of the conversa tion betwe en McI nnis and B enjamin did not constitute other crimes or prior bad acts evidence. Further, we agree that the evidence was relevant and admissible. For testimo ny to be adm issible it must be relevant. M d. Rule 5-4 02. Evide nce is relevant if it ha s any tenden cy to make th e existence of any fact tha t is of conse quence to the determination of the action more probable than it would be without the evidence. Md. Rule 5-401. Benjamin s declaration is admissible as circumstantial evidence tending to prov e that he later com mitted th e murd er. See Kirkland v. State, 75 Md. App. 49, 54, 540 A .2d 490 , 492 , cert. denied, 313 Md. 506, 54 A.2d 1344 (1988) (Affirming that the Hillmon doctrine provides that when the performance of a particular act by an individual as to the question of identity and a plan but not as to guilt or innocence. The Court then repeated the warning regarding the proper use of the evidence. -14- is an issu e in the c ase, his in tention ( state of mind) to perfor m that a ct may be show n . . . . The Hillmon doctrine allows the trial court to admit [a defendant s] statement as circumstantial evidence that [the defendant] carried out his intention and performed the act. ) Id. at 56, 540 A.2d at 493 (citing Mutual Life Insurance Co. v. Hillmon, 145 U.S. 285, 12 S.Ct. 909, 36 L.Ed. 706 (1892) (Holding that when the performance of a particular act by an individual is an issue in the case, his intention to perform that act may be offere d as circum stantial eviden ce that the ind ividual later ac ted in accor dance w ith his intention.)). Applying this standard to the evidence in question, we find the testimony of McInnis relevant. The evidence did more than suggest to the jury that Benjamin was either a bad person or had a propensity to commit violent crimes. Even though Benjam in s trial couns el conced ed during his openin g statemen t that Benjam in dismembered and disposed of the bodies of Martha Crutchley and Joshua Ford, the evidence of the earlier conversation between McInnis and Benjamin tended to show that Benjamin s participation in the homicide was not necessarily limited to the disposal of the bodies. Whether the three-year-old conversation was a joke or a serious statement and whether Benjam in participated in the killing as a principal o r only as an acc essory to homicide, were questions left to the jury for resolution. The trial judge, howe ver, based his decision to ad mit the evidence of B enjamin s prior statements on Md. Rule 5-404(b). That rule provides: Evidenc e of other c rimes, wro ngs, or acts is n ot admissib le to prove the c haracter of a person in order to sho w action in -15- conformity therewith. It may, however, be admissible for other purp oses, such a s proof of motive, op portunity, intent, preparation, common scheme or plan, knowledge, identity, or absence o f mistake o r accident. Md. Rule 5-404(b) is designed to prevent the jury from becoming confused by the evidence, from developing a predisposition of the defendant s guilt, or from prejudicing their minds a gainst the de fendant. State v. Faulkner, 314 Md. 630, 633, 552 A.2d 896, 897 (198 9) (internal citatio n omitted). E vidence o f other crim es is admissib le if it is substantially relevant to some contested issue in the case and if it is not offered to prove the defendant s guilt based on propensity to commit crime or his character as a criminal. Faulkner, 314 Md. at 634, 552 A.2d at 897-98. Before other crimes evidence is admitted, a three-part determination must be made by the trial court. The first required determination is whether the evidence fits within one or mor e of the stated ex ception s to Ru le 5-40 4(b). Faulkner, 314 Md. at 634, 552 A.2d at 898. T his is a leg al determ ination t hat doe s not inv olve an y exercise of disc retion. Id. The second req uirement is that the trial court determine w hether the defenda nt s involv emen t in the ot her act h as been establish ed by clea r and co nvincin g evide nce. Id. We review the trial court s decision to determine if there is suff icient evidence to suppo rt it s findin g. Faulkner, 314 Md. at 635, 552 A.2d at 898. Lastly, the trial court must weigh the probative v alue of the evidence against any un due prejud ice that may resu lt from its admiss ion. Id. This determination involves the exercise of discretion by the trial court. Id. -16- As previously discussed, the trial court concluded, based on the testimony offered at the hearing on the motion in limine that the offer to whack McInnis s wife amounted to other crimes evidence. Consequently the court conducted the three part test we recognized in Faulkner. The State a nd Ben jamin agre e that the trial co urt erred in applying the Faulkner analysis. In Klauenb erg v. State, 355 Md. 528 , 549, 735 A.2d 1 061, 1072 (199 9) this Court first addressed the issue of what constitutes a wrong or an act under Rule 5-404(b). We began by noting that [a]n act prohibited by the criminal code but which goes uncharged is perhaps easy to identify as a bad act, hence the term uncharged misconduct. Id. at 547, 735 A.2d at 1071. We then noted that some acts do not have a negative connotation until pla ced in c ontext. Id. We have held that mere possession of a knife and walking behind a women are not crimes, but under certain circumstances, these acts could be construed as misconduct. Id. (quoting Whittlesey v . State, 340 Md. 30, 58, 665 A.2d 223, 237 (1995)). W e have also held that a crim inal defen dant s plan to leave the S tate to evade prosec ution co uld con stitute a b ad act. Klauenberg, 355 Md. at 547, 735 A.2d at 1070 (citing Whittlesey, 340 Md. at 63, 665 A.2d at 239). And we have held that even though so licitation of a p rostitute for sex is a crime, testim ony that the de fendant got a girl and had sex did n ot amount to a crime o r bad act absent an indica tion that the girl was a p rostitute o r an unw illing pa rtner. Klauenberg, 355 Md. at 548, 735 A.2d at 1070 (citing Burch v. S tate, 346 M d. 253, 2 70-71 , 696 A .2d 443 , 452, cert. denied, 522 U.S. -17- 1001, 1 18 S.C t. 571, 13 9 L.Ed .2d 410 (1997 )). Based on our review of Maryland case law and that of a number of other jurisdictions w e conclud ed that: In reviewing the holdings from other jurisdictions and examples of what those courts construed as bad acts, the general theme running through each is that a bad act is an activity or condu ct, not neces sarily criminal, that ten ds to impugn or reflect ad versely upon one s cha racter, taking in to consideration the facts of the underlying lawsuit. It is from this general proposition that we evaluate whether the evidence to which appellant protests as erroneously admitted were bad acts under Ma ryland Rule 5-404(b). Klauenberg, 355 Md. at 547, 735 A.2d at 1071. In Klauenberg, we held that evidence that Klauenberg w as involved in an un derlying estate case with his sister, stood near a location where a gun was stored in a ceiling tile while the house was being searched by police, verbally confronted and poked the opposing attorney in the civil lawsuit, and was found with two guns and ammunition on his person, did not constitute bad acts. We reasoned that none of these actions, as they were presented to the jury, impugn someone s character. Therefore, they were not bad acts within the meaning of 5404(b ). Id. at 550, 735 A.2d at 1072-73. The testim ony in question here was that two m en, McIn nis and B enjamin, w ere in a strip club one night discussing how Benjamin would dispose of a dead body if he ever killed someone. Although the conversation may appear to be unusual, the conversation neither amounts to a crime nor impugns Benjamin s character to the extent that Rule 5- -18- 404(b) is implicated. We hold that the trial court was only required to determine whether the testimon y was relevan t and wh ether its proba tive value w as outwe ighed by its prejudicial effect. By engaging in the three-step analysis approved in Faulkner, the trial judge a fforde d Ben jamin g reater p rotectio n than w as nece ssary. Furthermore, Benjamin s argument that he was harmed by admission of the testimony of McInnis is tenuous considering his trial counsel s concession in his opening statement. In the present case, trial counsel conceded that Benjamin dismembered the bodies and disposed of them in dumpsters. This admission was not solely relevant to the crime of accessory after the fact. Benjamin s prior conversation was relevant circumstantial evidence of his intent or plan as well as evidence of the identity of the perpetrator. The jury could reason ably infer from the details contained in Benjamin s comme nts, the specif ic manne r in which he likely wou ld concea l a murder, a nd that, coupled with other substantial (and indeed conceded) evidence of his involvement in the dismem bering and dis position of the b odies, h e was a lso invo lved in th e killing . Moreo ver, the jury cou ld reasonab ly conclude f rom Ben jamin s con versation w ith McInn is that Benja min either p lanned or c ontrived a s cheme to murder th e victim in this case. Under the circum stances, the jury could reasonably infer that Be njamin s participation in the murder was not impulsive and that the murder was the result of a conscious design to kill. In addition, because Benjamin admitted his involvement as an accessory after the fact, the jury was not precluded from reasonably inferring from the -19- evidence that his role was more extensive than he indicated. The jury was free to believe some, all, or none of the evidence presented in this case. Therefore, the testimony of McInn is was relev ant withou t offering it to s how eithe r Benjam in s propen sity to commit crime or tha t Benjam in is a bad pe rson. Thu s, we affirm the trial court s d ecision to admit the evidence of Benjamin s prior statements about dismembering and disposing of bodies. A lthough w e reject the trial jud ge s conc lusion that the evidence amounte d to other crimes evidence, we discern no reversible error as a result of that decision. Exclusion of Elizabeth Sifrit s Testimony Benjam in also challen ges the trial co urt s decision to prevent E lizabeth Sifr it, Benjamin s mother, from testifying regard ing an incid ent that allege dly occurred w ith Erika in North Carolina. The defense proffered that Elizabeth would testify that Erika became hysterical following a military hearing involving Benjamin, pulled a gun on Elizabeth, locked herself in the bathroom, and that Elizabeth called 911. Counsel for Benjam in argued to the trial court tha t the testimon y was being offered to show s imply that there s another incident of [Erika] Sifrit pulling a gun on another human being. The Court r uled tha t the testim ony wa s not re levant. Benjamin now argues that the testimony was relevant to show that Erika was capable of pulling a weapon on another individual outside of [Benjamin s] presence and had the tenden cy to show that she was ca pable o f com mitting th e prese nt crime s alone . This argument, however, was not presented to the trial court and is not preserved for our -20- review . See Brecker v . State, 304 Md. 36, 39-40, 497 A.2d 479, 480 (1985) ( [O]ur cases have con sistently stated that w hen an ob jector sets forth the specific g rounds fo r his objection . . . the objector will be bound by those grounds and will ordinarily be deemed to have waive d other groun ds not s pecifie d. ). Arguably, the theory now advanced by Benjamin is simply a more detailed version of the one advan ced at trial. To accept this argum ent, however, we would have to require trial courts to imagine all reasonable offshoots of the argument actually presented to them before making a ruling on admissibility. We decline to place such a substantial burden on the trial court. Based on the argument presented during trial to support the admission of Elizabeth Sifrit s testimony, we conclude that the trial court did not err in excluding the testimony. W hether Erik a once pu lled a gun o n someo ne does n ot have a ten dency to show that she was the sole perpetrator of these heinous crimes. IV. Merger The last issue presented for our review is whether the trial court erred in imposing separate sentences for Benjamin s convictions for second degree murder and first degree assault. 8 The State agrees that m erger is requ ired in this case . We agre e as well an d shall vacate the sentence for Count Three, first degree assault, and merge, for sentencing 8 The trial court imposed a thirty-year sentence for Benjamin s conviction for the second degree murder of Martha Crutchley and a concurrent twenty-five-year sentence for his conviction for first degree assault of Ms. Crutchley. -21- purpo ses, Co unt Th ree into t he con viction f or Cou nt One , second degree murde r. Under the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution , the State can neither hold multiple trials no r punish a d efendan t multiple times for the same offense. Hollbroo k v. State, 364 Md. 354, 369, 772 A.2d 1240, 1248 (2001) (internal citations omitted). Of fenses merge an d separate sentences are prohibited when, for instance, a defendant is convicted of two offenses based on the same act or acts and one offense is a lesser-included offense of the other. Khalifa v. Maryland, Md. __, __ A.2d __ (2004). The norm al test for determining if an offense merges into another is the required evidence test. State v. Jenkins, 307 Md. 501, 518, 515 A.2d 46 5, 473 (1986). 9 It is the threshold test and, if it is satisfied, merger follow s as a m atter of c ourse. Khalifa , Md. at __, __ A.2d at __. The test looks to the elements of the offenses and if all of the elements of one offense are included in the other offense, so that only the latter offense contains a distinct element or distinct elements, the former merges into the latter. Jenkins, 307 M d. at 518 , 515 A .2d at 47 3. Merger may also be appropriate even when two offenses do not satisfy the required evidence test. [E]ven though offenses may be separate and distinct under the required evidence test, courts occasionally find as a matter of statutory interpretation that the legislature did not intend, under the circumstances involved, that a person could be convicted of two particular offenses growing out of the same act or transaction. Id. at 9 This test is also referred to as the same evidence test and the Blockburger test. -22- 518, 51 5 A.2d at 473 ( internal citation o mitted). The cr ime of murde r in Ma ryland rem ains a co mmo n law o ffense . Mitchell v. State, 363 M d. 130, 146 , 767 A.2d 844, 853 (2001). B y statute, it has been divided into two de grees. Id. Here, the trial court, in instructing the jury, said: In order to convict the defendant of second degree murder, the State must prove that the conduct of the defendant caused the death of Martha Crutchley and Joshua Ford; that the defendant engaged in the deadly conduct either with the intent to kill or with the intent to inflict such serious bo dily harm that death w ould be the likely result. At the time of the murders, first degree assault was punishable under Md. Code (1957, 19 96 Rep l. Vol.), Art. 27 § 12A-1 , which pro vides: (1) A person may not intentionally cause or attempt to cause serious physical in jury to ano ther. (2) A p erson m ay not co mmit a n assau lt with a f irearm. Serious physical injury includes physical injury which creates a substantial risk of death. Id. at § 12(c)(1). Here, the trial court instructed the jury on both modalities of proving a ssault. Applying the required evidence test to § 12A-1(1), we conclude that, for sentencing purposes, assault in the first degree merges with the crime of second degree murder. The two crimes have the same elements with the one additional element for murder, the death of the victim. The result is not the same when applying the required evidence test to § 12A-1(2), as it requires the use of a firearm which is not required for second d egree mu rder. We n ote, howe ver, that the jury fo und Be njamin no t guilty of both -23- counts of use of a h andgun in a crime o f violence or comm ission of a f elony, so it is unlikely th at they relie d on § 1 2A-1 (2) in fin ding B enjam in guilty of first deg ree assa ult. Neverth eless, we co nclude tha t, based on th e rule of len ity, even if the jury bas ed its conviction for first deg ree assault on the second modality, the co nviction w ould still merge. Based o n the facts of the case w e do not believe that the legislature intend ed for a person to be convicted of these two offenses which arose from the same act. We therefore hold that Benjamin s conviction for first degree assault should have been merged into his conviction for second degree murder for sentencing purposes. SENTENCE FOR COUNT THREE VACATED. JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUN TY OTHERWISE AFFIRMED. PETITIONER TO PA Y COSTS. -24-
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