Schlamp v. State

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In the Circu it Court for P rince Geo rge s Cou nty Case No. CT021002X IN THE COURT OF APPEALS OF MARYLAND No. 24 September Term, 2005 ______________________________________ JOHN RYAN SCHLAMP v. STATE OF MARYLAND ______________________________________ Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. ______________________________________ Opinion by Wilner, J. ______________________________________ Filed: February 3, 2006 Allegedly in the course of an encounter that lasted not more than 30 seconds, Brandon Malstrom, a 20-year old student at the Univ ersity of Mar yland, was stab bed to dea th in the early morning hours of November 10, 2002. Believing that petitioner Schlamp w as the killer, the State charged him with first and second degree murder, first and second degree ass ault, and common law riot. A jury in the Circuit Court for Prince George s County acquitted Schlamp of murder and first deg ree assault but convicted him of second degree assault and riot. For the latter, he was sentenced to ten years in prison; for the assault he was given a consecutive three-year sentence.1 The Court of Special A ppeals affirm ed the ju dgme nt. Schlam p v. State, 161 Md. App. 280, 868 A.2d 914 (2005). We granted certiorari to determine whether the evidence sufficed to establish the c ommo n law crim e of riot. W e shall hold that it did not and shall therefore reverse the ju dgment o f the interm ediate appe llate court. BACKGROUND The tragic and in excusab le death of Brando n Malstrom arose from what otherwise was a happy occasion for Brandon and his frien ds. On November 9, 2002, the University of Maryland football team won its Homecoming game against A tlantic Coast Conference rival 1 Believing that petitioner s friend, Quan Davis, was also complicit in the stabbing, the State charged him with first and second degree murder, first and second degree assault, riot, and carrying a dangerous weapon openly with intent to injure. Schlamp and Davis were tried together. Davis was acquitted of murder and assault but was convicted of riot and carrying a dangerous weapon. His convictions were affirmed by the Court of Special Appeals in an unreported opinion. This appeal involves only Schlamp. North Carolina State. That m eant it w as party tim e. Brandon spen t the day with his brother, Bill. Around 11:3 0 in the evening, the two of them, along with their friends, Brandon Conheim, Matt Swope, Matt Mitchell, and Paul Speakman, ended up at two parties on Dickerso n Aven ue, in Colleg e Park, a m ile or so from the campus. The parties, which had begun around 9:30 that evening, were taking place in adjoining houses and back yards, and seeme d to be w inding down by the tim e the gro up arriv ed. Another group, consisting of Schlamp, Quan Davis, Robert Fournier, Jacob Adams, and Kenny B rock, wh o were n either studen ts at the University nor invited guests, were also at the parties. Sc hlamp, A dams, and Fournier h ad spent the afternoon at Fournier s house watching the footba ll game on television an d drinking beer. Four nier said that he and Schlamp had consumed between 15 and 20 bottles of beer during the day. Adams stated that he had consumed eight or nine bottles of beer. At some point, they made arrangements to go to College Park that evening to join one or more of the parties. On their way, they stopped at a liquor store to replenish their supply, where they encountered Davis and three of his friends. They informed Davis that they were headed to a party and m ade arrang ements for Davis to join them. Th e Schlamp and Davis groups joine d up in College P ark and proceeded first to the home of Fournier s friend, Patrick.2 Some tim e around midnight, when they finished partying there, they found their way to the parties on Dickerson Avenue. Most 2 In the record , Patrick s last na me is referre d to as Ha rrell, Carroll, and Curl. It is not clear from the record which name is accurate. -2- of the Schlamp group, including Schlamp, were drunk. Adams testified that, in ad dition to the beer, Sc hlamp ha d begun drinking g rain alcoho l. There was evidence that the Schlamp group, and Schlamp in particular, acted in a boorish, obnoxio us mann er, deliberately instig ating verba l confronta tions with o ther people at the Dick erson Av enue partie s. Scott Ehrlich, w ho hosted one of the parties at his home, characterized the scene as basically just typical college scene that you might see people acting tough, and one person acting tough, another person acting tough, sort of trying to h old their own ground. There was no evidence of any fights, prior to the encounter during which Brandon was stabbed, because the people confronted either backed off or a third person, often Ehrlich, intervened. Matt Swope confirmed Ehrlich s observation, reciting that, although there was a lot of aggressive talking, a nd threatening, there was no attacking, or fights. Bill Malstrom said essentiall y the same thing that there were a lot of verbal confrontations and that, when someone got in my brother s face, Ehrlich diffused the situation . One particular confrontation that was mentioned occurred when Davis, while in Ehrlich s house, al lege dly rubbed against a fe male guest in a way that made her uncom fortabl e and o ne or m ore of th e men dema nded th at he lea ve. Most of the 20 to 30 peop le remaining at the parties seemed to be in the back yards. At one point, D avis show ed Ada ms a knife he was c arrying. Adam s described it as a Ram bo knif e big and sh arp, wit h a serra ted edg e. Eve ntua lly, apparently on the heels of the confrontation with Davis, Ehrlich asked -3- everyone to leave, and, he said, they did. Brandon and his group left the back yard and congregated for a time in the street. Wh ile there, Schla mp, with his group in tow, approached Brandon s group, accused them of taking either Schlamp s or Davis s cell phone, and demand ed its return or that they empty the ir pocke ts for ins pection . Brandon responded that no one had the cell phone (and, indeed, no one did), and refused to empty his pockets or turn over his own cell phone. At that time, Schlamp pushed Brandon Bill Malstrom referred to it as a real weak swing whereupon Fournier grabbed Brando n from b ehind to immobilize him. Bill Malstrom and Conheim attempted to pull Fournier off of Brandon. It was allegedly during that encounter, which everyone agreed lasted less than thirty seconds, that Brandon was stabbed. Althoug h Davis w as present, and Brandon Conheim said that he seemed to be fav oring his hip like that, reaching for something, no one saw the stabbing; no one could say who did it. No one wa s really sure that it occurred during that encou nter. As noted , both Schla mp and D avis were acquitted o f murder and first deg ree assault. While this brief fracas was taking place, a police car turned into the street, Matt Mitchell yelled police, and most of the people scattered. No one knew at that point that Brandon had been stabbed. Conheim and Mitchell told the officer that Schlamp was the one who started the incident, and Schlamp was taken into custody. With the arrival of the police, some of Brandon s g roup returned, but no one could find Brandon. Eventually, he was discovered in Ehrlich s back yard, on the ground, mortally wounded. He was taken to the -4- hospital, where, despite four or five hours of rescusitative effort, he died.3 DISCUSSION The sole issue be fore us is w hether, on th is evidence , any rational trier of fact could have found that the State proved the essential elements of the common law crime of riot beyond a reaso nable d oubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (197 9); Moye v. State, 369 M d. 2, 12, 796 A.2d 82 1, 827 (20 02); State v. Albrecht, 336 Md. 475 , 478-79, 649 A .2d 336, 337 (199 4). That requires an analysis and description o f the crime o f riot. It appears that Maryland is one of only a handful of States that have not codified the crime of riot and that still maintain it as a common law offense. The crime, as it had been defined in Englan d, came to u s through A rticle 5 of the M aryland Dec laration of R ights 4 and has been dealt with by this Court on only two occasions, in Kaefer v. S tate, 143 Md. 151, 122 3 The stab w ound sev ered Bran don s colo n, spleen, an d aorta, and resulted in massive internal bleeding. Yet, when Brandon was discovered in the back yard, the jacket he had been wearing had been removed and was hanging on the fence. It was unclear how, with such wounds, he had been able to remove his jacket and get to the back yard. The doctor said that he would not have been able to walk very far and did not know whether Brando n would have bee n able to rem ove the jack et. He obse rved that, w ith such an enormous blood loss, the brain does not function well and one proceeds on instinct. The doctor speculated, He may have run, pulled something off, something like that. It s u npredi ctable w hen you are that s hocke d. 4 Article 5, which has been part of the Maryland Constitution since 1776, provides, in relevant part, that the Inhabitants of Maryland are entitled to the Common Law of Engla nd . . . acc ording to the co urse of that La w . . . -5- A. 30 (1923) and Cohen v. State, 173 Md. 216, 195 A. 532 (1937 ), rearg. denied, 173 Md. 216, 196 A . 819, cert. denied, 303 U.S. 660, 58 S. Ct. 764, 82 L. Ed. 1119 (1938). It has been before the Court of Special Appeals on four occasions. See Brisco e v. State, 3 Md. App. 462, 24 0 A.2d 109 (1 968), cert. denied, 251 M d. 747 (19 68); McLa ughlin v. State, 3 Md. App. 515, 240 A.2d 298 (196 8); McCle lland v. State , 4 Md. App. 18, 240 A.2d 769 (1968), cert. denied, 251 M d. 750 ( 1968) , cert. denied, 395 U.S. 914, 89 S. Ct. 1759, 23 L. Ed. 2d 226 (1969); and Gibson, T ate & Austin v. State, 17 Md. App. 246, 300 A.2d 692 (1973). The crime in England arose, in large measure, from a collection of Parliamentary enactments, some of them quite old.5 The contours of the offense were shaped to some 5 Four statutes are usually mentioned, although others, at least historically, may have h ad som e releva nce. Th e earlies t of the f our w as that o f 2 Ed w. III, c. 3 in 1328 . That Act prohibited persons, other than the King s servants and ministers in the performance o f their official duties, from com ing before the K ing s justices or ministers with force and arms, bringing force in affray of the peace, or riding armed by day or night in fairs or markets, or in the presence of the King s justices or ministers. Two subsequent statutes dealt more with the problem of mobs destroying property. In 1549, by 3 & 4 Edw. VI, c. 5, Parliament made it a felony for 12 persons or more to destroy any park, pond, conduit, or dovehouse, pull down any houses, barns, or mills, burn any stack of corn, abate the rents of any land or prices of any victual, or continue together an hour after being commanded by a justice of the peace, sheriff, or bailiff to return. That part of the statute was extended in 1553 by 1 Mar. c. 12, which also prohibited any group of 12 or more, assembled together, from going about, with force and arms, trying to change any law made for religion or any other law of the realm, after being commanded in the Quee n s nam e to retur n. The statute of 1 Geo. I, c. 5, enacted in 1714, made it a felony, without benefit of clergy, for 12 or more persons, unlawfully, riotously, and tumultuously assembled together, to disturb the public peace, or to remain so assembled one hour after being (contin ued...) -6- extent by the Court of Star Chamber, which assumed jurisdiction over those offenses in the Sixteenth and early Seventeenth C enturies . See W ILLIAM H UDSON, A T REATISE OF THE C OURT OF S TAR C HAMBER 82-85, as taken from 2 Collectan ea Juridica , edited by F rancis Hargrave (1792); 5 HOLDSWORTH: A H ISTORY OF E NGLISH L AW 197-98 (1924 ). In its early manifestation, the crime of riot was asso ciated with treason, at least whe re the tumultuous activity threatened the King, a preroga tive of the King, or the K ing s ministers or justice s. Indeed, the statute of 3 & 4 Edw. VI. c. 5, mentioned above in note 4, made the riotous assembling of twelve persons or more and not dispersing upon proclamation high treason . See 1 E DWARD E AST , A T REATIS E OF THE P LEAS OF THE C ROWN 73 (1806). In time, riot became one of several offenses against the pu blic peace, the others also having statutory origins. The two with wh ich it seemed to have the greatest aff inity were unlawful assembly and rout, although the separate offenses of affray, riding armed with dangerous weapons, tumultuous petitioning, and forcible entry or detainer are also mentioned by Blackstone. See 4 Blac kstone , supra at 146-48 ; also 1 W ILLIAM H AWKINS, A T REATISE OF THE P LEAS OF THE C ROWN 513-31 (8 th ed. 182 4). Unlawful assembly, rout, and riot covered a progression of activity. Citing Coke , 3 5 (...continued) ordere d by a she riff, justic e of the peace , or bailif f to disp erse. See, in general 4 REEVES, H ISTORY OF THE E NGLISH L AW 487 (1829); 4 WILLIAM B LACKSTONE, L AWS OF E NGLAND 146-48 (1769). The 1714 statute has been commonly referred to as the Riot Act. As Perkins notes, to the extent that it required an official order to disperse, it spawned the slang expression of reading the riot act. See R OLLIN M. P ERKINS & R ONALD N. B OYCE, C RIMINAL L AW 485 (3 rd ed. 1982). Over time, a lesser form of the offense was recognized as a misdemeanor where at least three but less than twelve persons were involved. -7- Inst. 176, Blackstone observes that an unlawful a ssembly occurred when three or more do assemble themselves together to do an unlawful act, as to pull down enclosures, to destroy a warren or the game therein, and part withou t doing it o r makin g any mo tion tow ards it. 4 Blac kstone , supra at 146. A rout occurred where three or more meet to do an unlawful act upon a common quarrel, as forcibly breaking down fences upon a right claimed of common or of w ay, and make some advance s toward it . Id. (Emp hasis ad ded). Blackstone described a riot as where three or more actually do an unlawful act of violence, either with or without a common cause or quarrel; as, if they beat a man, or hunt and kill game in another s park, chase, warren, or liberty, or do an y other unlaw ful act with force and violence, or even do a lawful act, as removing a nuisance, in a violent a nd tum ultuou s mann er. Id. Perkins gives a simple example of how those pyramiding crimes related: Assume there are three or more persons with a common design to commit a crime by open force or to carry out some enterprise, lawful or unlaw ful, in such a violent, turbulent and unauthorized manner as to cause courageous persons to apprehend a breach of the peace . When they com e together for this purpose th ey are guilty of unlawful as sembly. Wh en they start on th eir way to carry out their common design they are guilty of rout. In the actual execution of their design they are guilty of riot. Perkin s & B oyce, supra, C RIMINAL L AW at 483. Hawk ins also def ined the thre e crimes, saying of riot: A Riot seems to be a tumultuous disturbance of the peace, by three persons, or more, assembling together of their own -8- auth ority, with an intent mutually to assist one another, against any who shall oppose them, in the execution of some enterprize of a private nature, and afterwards actually executing the same in a violent and turbulent manner, to the terror of the people, wheth er the ac t intende d were itself law ful or u nlawf ul. 1 Haw kins, supra at 513. Although Hawkins and some of the other Seventeenth and Eighteenth Century commentators defined the crime of riot in rather broad terms, it seems at least implicitly clear that the true gravamen of the offense was planned and deliberate violent or tumultuous behavior involving a confederation of three or mo re persons, f or that is what made the entire group, rather than just the actual and direct perpetrators of the violent or tumultuous behavior, guilty of the offense. Hawkins notes, in that regard, that if a number of persons being met together at a fair, or market, or church-ale, or any other lawful or innocent occasion, happen on a sudden quarrel to fall togethe r by the ears, they are n ot guilty of riot, but of sudden affray only, of which none are guilty but those who actually enga ge in it, because the design of their meeting was innocent and lawful, and the subsequent breach of the peace happened unexpectedly without any previous intention concerning it. 1 Hawkins, supra at 514. On the other hand, he observes, if, upon a dispute arising, persons otherwise innocently assembled form themselves into parties, with promises of mutual assistance, and then make an affray, they are guilty of riot, because, upon their confederating together w ith an intention to break the peace, they m ay as properly be s aid to be assembled together for that purpose from the time of such confederacy. . . Id. -9- That distinction dra wn by Ha wkins is a critical one. The crime was not regarded as one against either persons or property the persons injured or property damaged by the unlawful behavior but rather against the public peace. Along with unlawful assembly and rout, it was regarded as a threat to society because of the plurality of actors and potential uncontro llability of a mob. C LARK AND M ARSHALL , A T REATISE ON THE L AW OF C RIMES, § 9.09 (7 th ed. 1967). Hawkins makes the point that in every riot there must be some such circumstances either of actual force and violence, or at least of an apparent tendency thereto, as are naturally apt to strike a terror into the people; . . . for every such o ffence m ust be laid to be done in terrorem populi. 1 Ha wkins , supra at 515. As noted, most of the American States have codified the crime, and, although the statutes vary in their wording, a common theme in most of them is the confederation of a group of people the minimum number varies who engage in tumultuous or violent conduct that creates a public disturbance or a risk of terror or alarm.6 The judicial decisions vary as well, perhaps as a result of the statutes in force, as to whether the offense requires a showing of actual terror, the commission o f an unlawfu l act, or injury to pe rson or pr operty. 6 See, for exa mple, A LA. C ODE § 13A-1 1-3; A LASKA S TAT. § 11.61.10 0; A RIZ. R EV. S TAT. § 13-290 3; A RK. C ODE A NN. § 5-71-20 1; C AL. P ENAL C ODE § 404; C OLO . R EV. S TAT. A NN. § 18-9-10 1; C ONN. G EN. S TAT. A NN. § 53a-175; D.C. C ODE ANN. § 221322; G A. C ODE A NN. § 16-11-3 0; I DAHO CODE § 18-640 1; I ND. C ODE § 35-45-1 -2; K AN. S TAT. A NN. § 21-410 4; K Y. R EV. S TAT. A NN. § 525.01 0; L A. R EV. S TAT. A NN. § 329.1); M ICH. C OMP. L AWS A NN. § 752-54 1; M INN. S TAT. § 609.71; M ONT. C ODE A NN. § 45-8103; N.H. R EV. S TAT. A NN. § 644:1; N.Y. P ENAL L AW §§ 240.05-.06; N.D. C ENT. C ODE § 12.1-25-0 1; O R. R EV. S TAT. § 166.015 ; T ENN. C ODE A NN. § 39-17-3 01; T EX. P ENAL C ODE A NN. § 42.02; U TAH C ODE A NN. § 76-9-10 1; V A. C ODE A NN. § 18.2-405. -10- See Martin J. McM ahon, What Constitutes Sufficiently Violent, Tumultu ous, Forc eful, Aggressiv e, or Terro rizing Con duct to Establish C rime of Rio t in State Co urts, 38 ALR 4 th 648 (1985). The six Maryland cases to date have all involved tumultuous and aggre ssive conduct by a confederation of three or more people, and that is how the crime has been defined in this State. The two cases decid ed by this Co urt, Kaefer v. State, supra, 143 Md. 151, 122 A. 30, and Cohen v. State, supra, 173 M d. 216, 195 A. 532, bo th arose ou t of labor dis putes. In Kaefer, thirteen defendants were convicted of unlawful assembly, riot, and assault. The issues raised on ap peal did not require that the Co urt expressly de fine the crim e of riot, but, in responding to an attack on the sufficiency of the indictment, we set forth the allegations therein and fo und the m suff icient. The indictment charged, in relevant part, that Kaefer and as many as fifty other persons unlawfully, riotously, and tumultuously assembled and gathered together to disturb the peace of the State, while being so assembled, made great noises, tumults, and disturbances, and remained together for about an hour to the great terror and disturba nce of nearby p ersons . Kaefer, supra, 143 Md. at 153-55, 122 A. at 31-32. That articulati on wa s foun d suff icient to c harge th e crime . In discussing an evidentiary issue, the Court recounted the evidence presented in support of the indictmen t that the def endants w ere miners o n strike, that alon g with others, they had established a picket line, that they confronted a group of me n proceeding to w ork at the mine, and that, as part of a group of at least 35, the defendants stopped them and -11- forced them to retire by threats of bodily harm, and by using clubs and throwing stones and by discharging firearms, and that the emplo yees so att acked retreated as best th ey could . Id. at 157, 122 A. at 32-33. Cohen s convictions for riot and incitement (solicitation) to riot arose from a taxicab strike in Baltimore City that commenced on December 12, 1936 and continued, spora dica lly, into February, 1937. The counts of the indictmen t charging rio t mirrored, to a large exten t, those found su fficient in Kaefer. One of those counts alleged that, on December 16, Cohen, along with div ers p erso ns to the Juror s afo resa id un known, unlawfully, rioto usly and tumultuou sly assembled and gathered together to disturb the peace of the City and State, that they made a grea t noise, rio t, tumult a nd distu rbance , that they remained together for about fifteen minutes to the great terror and disturbance of nearby people. The other count added that, while so gathered, they riotously did assault, intimidate and interfere with divers persons . . . and did destroy certain vehicles. Cohen v. State, supra, 173 Md. at 220-21, 195 A. at 534. Cohen demurred to those counts, claiming that they omitted many of the definitions of riot at common law. Id. at 221, 195 A. at 534. One of the alleged defects was that, while the crime requires the participation of at least three people, Cohen was the o nly one indicted for the offense. Citing Kaefer v. State, supra, and H OCHHEIMER, T HE L AW OF C RIMES AND C RIMINAL P ROCEDURE, §§ 429-431 (2d ed. 190 4), this Court found no deficiency. The Court responded first by defining the crime: -12- At common law it was necessary that three or more persons be unlawfully assembled to carry out a common purpose in such violent or turbulent manner as to terrify others, and assault or destruction of property may or may not be incident to the execution of the riot. The assembly must be unlawful, else there is no riot, and the unlawful assembly must be charged in the indictm ent. Id. at 221, 195 A. at 534. Although noting that in Kaefer thirteen persons had been indicted, the Court regarded the sustaining of the sufficiency of the Kaefer indictment as precedential. It added that [o]ne person can be charged with rioting, provided he is alleged to have been so engaged with at least two other persons. Id. at 222, 195 A. at 534. In that regard, the Court, quoting a Mass achuse tts decisio n and e choing the poin t made by Clark and M arshall, supra, observed that [i]t is un doubted ly true that a riot c annot ordina rily be com mitte d by one person because [i]t is the acting in conc ert, the unlawful combination, which constitutes the offen se. Cohen v. State, supra, 173 Md. at 222, 195 A. at 534, quoting Commonwealth v. Berry, 71 Mass. (5 G ray) 93 (1855). The four cases in the Co urt of Spe cial Ap peals ar ose fro m two prison r iots. Briscoe v. State, supra, 3 Md. App. 462, 240 A.2d 109, McLaughlin v. State, supra, 3 Md. App. 515, 240 A.2d 298, and McClelland v. State, supra, 4 Md. App. 18, 240 A.2d 769, emanated from a widespread disturbance at the Maryland Penitentiary in July, 1966. The disturbance, involving some 200 inmates, began around noon, lasted m ore than four hours, and resulted in at least $750 ,000 in dama ge. The commissary was set afire and looted; fires were started -13- in the industrial shop building, the print and tag shop, and the la undry. While the Fire Department was busy dealing with the fires, the inmates involved were running about hurling missiles and smashing w indows. They attemp ted to storm the pow er house but we re repulsed. Briscoe was observed engaged in looting, carrying a large piece of lumber, and shouting at the polic e. McLaughlin was identified as one of the leaders of the disturbance, going from building to building armed with a piece of wood, smashing windows, and encouraging other inmates. The details of McClelland s role are unclear, but he acknow ledged tha t he was a n integral pa rt of the riot. The indictments contained much the same verbiage as those sustained in Kaefer and Cohen, and, on the precedent of Cohen, were declared sufficient. In Briscoe, the court he ld that the indictme nt did not have to allege any intent on B riscoe s part to assist oth ers, nor did it have to name the others involved in the riot. The Court further held that it was not necessary to prove that any particular persons were placed in fear or terror. Noting that news of the riot was broadcast over the radio and all police officers were directed to report for duty, the Court concluded that there may be a riot, even though no person or persons are actually terrified, if the violent and turbulen t exe cutio n of any unlaw ful a ct co mmitted by a sufficient number of persons tends to alarm and terrify law -abiding citize ns in the peaceful exercise of their constitutional rights and privileges. Briscoe v. S tate, supra, 3 Md. App. at 468-69, 240 A.2d at 112-13. That point was made as well in McClelland. See McClelland v. State, supra, 4 Md. App. at 30-31, 240 A.2d at 776-77. -14- The fourth case, Gibson, Tate, & Austin v. State, supra, 17 Md. App. 246, 300 A.2d 692, arose out of a disturbance at the Maryland Correctional Institution. The major issue in the case was the trial court s refusal to remove the case from Wash ington County, where the prison was loca ted, but Au stin contend ed, in addition , that the evide nce was legally insufficien t to establish the o ffense. In re jecting that de fense, the C ourt did no t recount all of what had occurred but noted only that forty to fifty inmates had taken control of the recreation room, upsetting tables and erecting barricades. Several correctional officers had been h erded in to that ro om an d were threaten ed by A ustin w ith a club . The crime of riot is not confined, of course, to disturbances arising from labor disputes or prison insurrections. The description given in Cohen is consistent with the conception of the crime under English law three or more persons unlawfully assembled to carry out a common purpose in such violent or turbulent manner as to terrify others. Cohen v. State, supra, 173 Md. at 221, 195 A. at 534. Those elements are not established by this record. Although, while at the party, Schlamp and his comrades were, as noted, boorish and obnoxious, they wer e not un lawfu lly assemb led. Prior to the incident during which Brandon was apparently stabbed, there were no fights, and there was no evidence of other tumultuous behavior that struck terro r or was like ly to strike terror in anyone. Everyone seemed to agree that the aggression was entirely verbal, apparently one-on-one, and not group-instigated, and was largely diffused or ignored. There was no destruction of property and no evidence of excessive noise. When M r. Ehrlich ha d enoug h and ask ed the two groups to le ave, they did -15- so. The incident in the street, which lasted less than 30 seconds, was instigated by Schlamp, with the assistance of Fournier. The acquittal of Davis on the charges of murder and assault indicates at least a reasonable doubt by the jury that he was involved in the assault on Brandon. The two groups were in proximity to one another, but there was no evidence of organized group confrontation. It may well have been the fortuitous arrival of the police that averted such a confrontation, but the important point is that one did not occur. Brandon was stabbed, but the State has not shown by w hom or even e stablished when. Th ere most likely was at least a manslaughter and possibly a murder, committed by someone, but there was not a riot. JUDGMENT OF COURT OF SPECIAL APPEALS REVERSED; CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO REVERSE JUDGMENT OF CONVICTION OF RIOT; COSTS IN THIS COURT AND IN COURT OF SPECIAL APPEALS TO BE PAID BY PRINCE GEORGE S COUNTY. -16-