State v. Williams
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State v. Williams, No. 103, September Term, 2005 HEADNOTE: CRIMINAL LAW & PROCEDURE BENCH TRIALS INCONSISTENT VERDICTS Williams was convicted in a bench trial of attempted robbery with a dangerous weapon, attempted robbery, assault in the first degree, and attempted theft on the theory that he aided and abetted the perpetrators, Henderson and Gaines. Williams was convicted as a principal in the second degree to those crimes, in part, because he drove Henderson and Gaines to and from the Citgo station where the crimes took place. The trial judge determined that Williams was know ledgea ble abo ut the ev ents an d was comp licit in the events . Williams was acquitted, however, of wearing, carrying or transportin g a handg un. The g uilty verdicts are incons istent w ith the ac quittal fo r posse ssion o f a han dgun. Williams was also convicted of use of a handgun in the commission of a crime of violence and a felony. Those guilty verdicts are also inconsistent with the acquittal for wearing, carrying or transporting a handgun because Williams could not have used the handgun if he did not first possess it. The trial judge neither acknowledged the inconsistencies nor offered any justification to explain how Williams was not in joint constru ctive po ssession of the h andgu n used in the atte mpted armed robber y. When a trial judge, sitting without a jury, renders inconsistent verdicts, and fails to explain the reaso n for the inco nsistenc y, the approp riate remed y is to vacate or reverse the inconsistent verdicts of guilty. Therefore, the convictions for attempted robbery with a dangerous weapon, assault in the first degree, and use of a handgun in the commission of a crime of viole nce an d a felo ny must b e revers ed. Because Williams c ould particip ate in the attempted robbery and attempted theft without p ossessing o r using a ha ndgun, tho se verdicts are consistent w ith his acquittal for wearing, carrying, or transporting a handgun. Accordingly, we affirm the judgment of the Court of Special Appeals. In the Circu it Court for B altimore C ounty Criminal Case No. 03-CR-1505 IN THE COURT OF A PPEALS OF MARYLAND No. 103 September Term, 2005 ____________________________________ STATE OF MARYLAND v. CHARLES PHILLIP WILLIAMS ____________________________________ Bell, C.J. Raker *Wilner Cathell Harrell Battaglia Greene, JJ. ____________________________________ Opinion by Greene, J. ____________________________________ Filed: February 8, 2007 *Wilner, J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and adoption of this opinion. This matter arises from the conviction and sentence of Charles Phillip Williams ( Williams ) in the Circuit Court for Ba ltimore C ounty. The theory of the prosecution was that Williams aided and abetted1 Anthony Henderson and Cheryl Gaines in the attempted armed robbery of Ahmed Hussein, the operator of a Citgo gas station and conve nience store located in Baltimore Cou nty. The trial judge found W illiams guilty of attempted robbery with a dangerous w eapon (Coun t 1); attempted robbery (Coun t 2); assault in the first degree (Count 3); attempted theft (Count 4); use of a handgun in the commission of a felony (Count 6); and use of a handgun in the commission of a crime of violence (Count 7). Williams was charged with, but acquitted of, wearing, carrying or transporting a handgun (Count 5)2 and two co unts of posses sion of a firearm (Coun ts 8 and 9). In this case, we have been asked to decide whether the Circuit Court judge rendered inconsistent verdicts w hen he co nvicted Williams of attempted robbery with a dangerous weapon, assault in the first degree, and use of a handgun in the commission of a crime of violence and a felony, but found him not guilty of wearing, carrying or transporting a handgun. We answer in the affirmative. In this case, the trial judge failed to acknowledge and explain the inconsistent verdicts. We therefore h old that the guilty verdicts for attempted robbery with a dangerous w eapon , assault in the first degree, and use of a handgun in the 1 The prosecution argued that Williams was the aider and abettor because he was acting a s a loo k-out and a cting as a get-aw ay driver. 2 The indictment lists the charge, as to Count 5, as wearing, carrying and transporting a handgu n upon a nd abou t Williams s p erson. Although W illiams was not specific ally charged with transporting or possessing a handgun solely in his vehicle, the trial judge limited his findings, as to whether Williams wore, carried, or transported the handgun, to the time period that the handgun was in Williams s vehicle. commission of a crime of violence and a felony must be vacated, and, according ly, we affirm the judgment of the Court of Special Appeals. BACKGROUND We adopt the fac ts as set forth by the Court of Special Appeals in its unreported opinion. Williams v . State, No. 2037, Septem ber Term, 2003. In addressing W illiams s appeal, the intermediate appellate court stated as follows: On the mornin g of Feb ruary 6, 2003 , Ahmed Hussein was working as a cashier at the Citgo gas station and convenience store located at 620 Edmonson Ave nue in Baltimore County. At approximately 6:30 a.m., a man and a woman entered the store. Hussein, who had been outside, followed them inside. At trial, Hussein testified that the man and woman were wearing masks, but it was very cold and they said good m orning so h e believed th at they were regular custom ers. When Hussein entered the store s cashier room, the man told him to lay down. As Hussein turned around, he saw the man pointing a gun at his chest. Hussein did not lay down. Instead, he tried to close the door, but the man prevented him from do ing so with his leg. The man twice told Hussein to lay down, then fired the gun at the floor, missing Husse in s feet by a few inches. After the shot was fired, the man cursed and he and the wom an left th e store. H ussein c alled the police. Mandy Thurston lives near the Citgo station. At approximate ly 6:30 a.m. on the morning in question, she was preparing to leave for school and went outside to warm up her car. At that time, Thurston observed a red Acura pull up in front of a bar, which was located direct ly across the street from Thurston s vehicle.[] Thurston stated that she saw a lot of movement . . . in the car like they were covering their fac es. Howeve r, she could not see the individuals. The Acura then made a U-turn and drove off. -2- Thurston next saw a man an d a wom an walkin g up Old Edmondson Avenu e toward the Citgo. A ccording to Thurston, they did not have anything on their heads, and their faces were visible as they came up the street, although they were too far away for her to identify them. She then saw the Acura again, which backed into a park ing space on the side of the bar. The man and woman exited the Citgo station and were hurrying toward the Acura. After they entered the vehicle, it took off a little bit faster than Thurston had seen the car traveling prev ious ly. Thurston started to drive to school, but turned around when she saw the police heading toward the Citgo station. At the Citgo station, she gave a description of the red Acura to the police, noting that it had bumper damage to the left side of the veh icle. Detective James Bonsall testified that, on February 6, 2003, he was in plain clothes and traveling in an unmarked car, which was equ ipped w ith a blue light on the dashboard, but not a siren. At that tim e, he heard the broadc ast for a veh icle involved in a robbery. The vehicle was described as a red, twodoor Acura w ith silver along the bottom of the car and damage to the left rear w ith the bum per hang ing dow n. A tag number was also provided. At approximately 11:46 a.m., a few miles from the Citgo, the detective observed a vehicle matching that description. Detective Bonsall followed the Acura and radioed for assistance. H e was the n advised that City police units were on the way. Detective Bonsall continued to follow the Acura w hile waiting for assistance. The Acura was driving no rmally and did not commit any traffic infractions, nor did the driver attempt to elude Bo nsall. Bonsall recalled that, after turning onto Winchester Street, the Acura traveled abo ut a block to a block an d a-half before the driver pulled the vehicle to the curb. The detective pulled over approximately three car lengths behind the Acura. The driver waited about thirty seconds before starting to get out of the vehicle. When the driver of the Acura appeared as if he were exiting the car, Bonsall began to get out of his vehicle. -3- The detective crouched behind the car door and placed his hand on his weap on, but then the Acur a took off . Detective B onsall never reached th at point wh ere he wa s able to identify himse lf as a police officer. The detective continued to follow the vehicle. A t some po int, a helicopte r joined the p ursuit. The Acura m ade a U-tu rn and D etective Bonsall got a good look at the face of the d river. Althou gh Bon sall eventually lost sight of the Acura, the police helicopter indicated that the car had stopped at the end of the 500 block of Longwood Street and that the driver had gone onto the porch of the residence at 501 Longwood Street. Although the police conducted an extensive search, the driver was not found. On February 7, 2003, the day after the attempted robb ery, Detective Bonsall viewed a photgraphic array and identified [Williams] as the d river of the Ac ura. The detective also made an in-court identification of [W illiams]. Corporal Todd E delin testified th at the Acura was abandoned two and a-half to three miles from the Citgo station, in the 500 block of North Longwood Street in Baltimore City. He determined that the vehicle was registered to [Williams]. He showed Thurston pictures of the vehicle and s he imme diately stated: T hat s the car. Edelin responded to the ad dress listed on the Acura s registration and spoke with [Williams] s mother. She confirmed that the Acura belonged to him and indicated that [Willams] had been staying with her off and on , but he had a drug p roblem and she hadn t seen him in awhile. Edelin obtained a search warrant for the vehicle. In the ensuing search, he recovered [William] s driver s license, a black knit hat, a black skull cap, and a pair of black cloth gloves. [Williams] was arrested on April 3, 2003. He was advised of his Miranda rights,[] agreed to waive those rights, and made a statement. Corporal Edelin offered the following testimony rega rding [W illiams] s statem ent: -4- [PROS ECUT OR]: And what, if anything did [Williams] tell you? [EDEL IN]: He stated that he was driving that car that day, his ca r, the Ac ura, helping two friends out. They were supposed to go to Ca tonsville to a house in C atonsville to get money from a friend of the co-defendant s, and when they got to the house, no one was home. When they were driving back, he said the co-defendant wanted to stop for cigarettes at a gas station, and they stopped. He backed into a parking lot behind the gas station to do his heroin, and the two passengers got out and we nt into the gas station, came back, and then they went back to Lon gwoo d . . . . [PROS ECUT OR]: What did he tell you happened when they got back to Longwood? [EDEL IN]: He said, when they were back at Longwood, the two got into an argument over what happened at the gas station. [PROS ECUT OR]: When you say the two, who do you mean? [EDEL IN]: Anthony Henderson, the codefenda nt, and Cheryl Gaines, the female girlfriend of Anthony Henderson. He said they got into an argument about what went on at the gas station. She was asking why he did that, and then the defendant asked said he aske d wha t went o n, and they told him that they went in to get money and the gun went off accidentally, and he said he freaked out and basically said he didn t know anything happened when he was a t the gas station until afterward -5- back at Longwood. * * * * [PROSECUTOR]: What did he [William s] tell you Tony Hen derson w as trying to do in the store? [EDEL IN]: He said initially he was to get cigarettes, but when he found out back at the house, he said he went to get money to help him, to help the d efendan t out. [PROS ECUT OR]: What did that mean? Did he say what that m eant? [EDELIN]: His drug problem. [Williams] also informed the corporal that Henderson had been arrested at 525 Longwood Street and that the police had recovered a handgun. [Williams] believed it was the gun used at the Citgo Station. Williams stated that, prior to the armed robb ery, he had seen Henderson on Longwood Street with the gun. Further, Williams in formed C orporal Ed elin that, following the attempted robbery, he was driving the A cura when he realized he was being followed by a green car driven by a white male. At tha t point, [W illiams] pulled over. The white male also pulled over and got out of the vehicle. According to [Williams], the white male pulled a gun on him so he jumped back in his car and sped awa y. Williams stated that he did not know that the white male was a police officer; he explained that he thought that someone was pulling a gun on him, because he was in an open-air drug m arket where a lot of crim inal activity occurred. [Williams] drove to the 500 block of North Longwood Street, got out of his car, walked up the alley, and entered the residence a t 501 No rth Longw ood Stree t. After interviewin g [William s], -6- Corpora l Edelin confirmed that Hen ders on had been a rrest ed in Balt imore City. Henderson s residence, 525 North Longwood Street, was searched by Baltimore City Police detectives and a 9 millimeter semiautom atic Beretta was re covere d. Baltimore County Police had recovered bullet fragments from the floor of the cashier s room in the Citgo station, and ballistics tests determined that the bullet fir ed in the store ca me fro m that B eretta. Williams testified in his own defense. He stated that, on the morning in question, he parked his car and Henderson and Gaines got out to buy cigarettes at the convenience store. [Williams] moved h is car because he was g oing to use dru gs. Henderson and Gaines went into the Citgo Station, then came back to his car. They were not running and were not wearing masks. In addition, they had cigarettes in their possession and did not tell him that they had robbed the Citgo Station. [Williams] drove back to Longwood Street, arriving there at about 6 :50 a.m . He recalled that Gaines was scared and she asked Henderson w hy did he do that[?] The three went into the house, where Henderson informed [Williams] that he had robbed the Citgo station. [Williams] and Henderson argued and [Williams] eventually drove towards his mother s residence. [Williams] explained that his mother is a Baltimore City Police Officer and he intende d to ask her for advice . While en route to his mother s residence, Detective Bonsall began to follow [Williams]. Williams said he pulled over on Winchester Street, but when he started to get out of the Acura, he looked in his side view mirror and saw that the detective was also exiting his vehicle. When [ Williams] o bserved th e detective going for a gun, he pulled off. [Williams] stated that he did not hear any sirens or see any emergency lights. In addition, he did not hear the police helicopter until he exited his vehicle. Later, [Williams] left his Acura on Longwood Street and went to a friend s house. [Williams] added that Henderson had shown him the handgun prior to the attempted robbery. He also acknowledged -7- that he saw the weapon again after the incident, when the group returned to L ongwo od Street. In reaching its verdict, the trial co urt stated, in pa rt: There is no questio n this is a close case, but there is no question in the court s mind that [Williams] was present. He admits he was present. H is conduct is that of a person with consciousness of guilt. That is the disturbing thing. And his conduct, even prior to the even t, is indicative of complicity in the events. The witness sees some covert activity in the car, some apparent attempt, according to her, gestures and so forth, apparent attempts to cover up partia lly, if not wholly conceal the identity of the two persons that got out of the car. Going for cigarettes, why not park on the parking lot of the Citgo Station? W hy park covertly in a hidden fashion, backing into a parking space behind the station where the passengers have to go through a fence in o rder to get to the store? If you are just going to buy cigarettes, you pull into the g as station. Th at is the kind of th ing that m akes his story just not quite buyable. He is an almos t believable witness. He testifies with a great deal of assurance with what happened. He seems cooperative with the police. That is much in his favor. There is no question about that, but I think at that point, he is trying to figure out a way, ha ving sat in the car for several hours, how am I going to get out of this, how am I going to get out of this[?] He is trying to say, well, what I have to do is I have to own up to everything and I have to let -8- them know w ho the perp etrator was and coop erate with them and maybe I will be believed that I didn t have any knowledge of it before hand. And you are close to that point, Mr. Williams, but not quite close enough. The court believes that you were knowle dgeable about the events, that you we re complicit in the events and that you are guilty of aiding and abettin g in the com mission of this attem pted robb ery. The count, first count of attempted armed robbery is sustained. I f ind the defendan t guilty of that because of his position as an aider and abettor. With respect to the remaining counts, robb ery, of course, would merge into armed robbery or attempted armed robbery, as would assa ult. T heft is an elem ent o f rob bery. Now, the handgun in the v ehicle, I don t think there is sufficient evidence to establish that he carried the weapon in his vehicle. I think that the perpetrator, the co-defendant, was the person that was carrying the weapo n. It is a bit of a stretch to fin d him guilty of the handgun in the vehicle charge. * * * * Certainl y, there is no q uestion that a handgun was used . A hand gun wa s discharged, and to the extent he had knowledge of the events about to take place or that did take place in the event, he is e qually guilty of that, as well. Without explanation or comment, the court also found appellant not guilty of the tw o counts of unlawfully possessing a regulated firearm [C ounts 8 and 9]. -9- The court then summarized its rulings: So, recapping, count one, guilty; count[s] two, three and four, merged; cou nt fiv e, no t guilty; count six, guilty. I guess tec hnically seven would be equally guilty, although it is just merged for sentenci ng purpo ses. E ight and nine , not g uilty. The Court of Special Appeals compared the use of a handgun to the possession of a handgun and determined that the Leg islature intend ed use to be something more than possession - an active, rather than passive operation o r employment of a ha ndgun. In reviewing the trial court s findings, the Court of Special Appeals held that it was unable to conclude that the verdicts were not inconsistent. It continued: If [Williams ] was fou nd to have used the handgun in the commission of the robbery, he must also have possessed the handgun. This is especially so in light of the trial court s findings that [Williams] s conduct, even prior to the ev ent, is indicative of comp licity in the events. T he interme diate appella te court acknow ledged tha t there existed no evidence that Williams actually possessed the handgun but noted th at his convic tions were not based on his actual use of the handgun; they were based on Hende rson s use o f the hand gun and Williams s c omplicity in Henderson s actions. The court explained that before Williams could use the gun, he had to have possessed it and the trial court failed to explain that inconsisten cy. As such, the Court of Special Appeals reversed Williams s convictions for attempted robbery with a dangerous weapon, assault in the first degree, and use of a handgun in the commission of a crime of violence and a felony. It affirmed all of the other verdicts and remanded the case to the -10- Circuit Court for a new sentencing. Subsequently, the State filed a petition for writ of certiorari3 in this C ourt, w hich w e grante d. State v. Williams, 390 Md. 284, 888 A.2d 341 (2005 ). DISCUSSION The State contends that the Court of Special Appeals incorrectly determined that the verdicts were inconsistent because this Court has held that, in Maryland, the common law doctrine of accessoryship is applicable solely to felonies. The State cites State v. Ward, 284 Md. 189, 396 A.2d 1041 (1978), for this principle, and then explains that, in contrast, there is no accessoryship for misdemeanors because a ll particip ants are princip als. See State v. Hawkins, 326 Md. 2 70, 604 A .2d 489 (1 992). The State posits tha t because o f this distinction, the intermed iate appellate court erred in determining that the trial cou rt s verdicts were inconsistent. The State concedes that the Court of Special Appeals was correct as to Williams s convictions for the merged misdemeanor offenses of use of a handgun in the commission of a felony and in the commission of a crime of violence . . . . The State argues, however, that the intermediate appellate court was in correct as to Williams s conviction of the felonies of attemp ted armed robbery and first degree a ssault . . . [because] 3 The State presented th e followin g issue in its pe tition for writ o f certiorari: Did the Court of Special Appeals incorrectly hold that the sentencing court s verdict finding Williams guilty, as an accomplice, of attempted arme d robbery and first degree a ssault was inconsistent with the trial court s acquittal of Williams of wearing[,] carrying and transporting a handgun? -11- [t]he Court of Special Appeals failed to recognize that, in regard to felonies, one may be culpable as an acco mplice, w hile, for misdemeanors, the offender must be a first degree princip al. The State notes that Williams admitted to driving Henderson and Gaines to the gas station, acknowledged that Henderson and Gaines attempted to rob Mr. Hussein at gunpoin t, and that he then drove Henderson and Gaines away from the scene after the crime. Therefore, the State argues, the evidence fully supported the trial cou rt s verdicts. Th e State avers that because the trial court determined that Williams was not a principal as to the handgun possession count but was guilty of attempted robbery with a dangerous weapon and assault in the first degree as an aider and abettor, the verdicts are in no w ay inconsistent. Acc ordingly, the State requests that this Court reverse the judgment of the Court of Special Appea ls in order to uphold and reinstate the trial court s convictions of Williams for the two felonies. Williams evaluates the State s claims and argues that [t]he State simply ca nnot ha ve it both ways. If the trial [court] s acquittal of the handgun possession charge wa s, as the State concedes, inconsistent with its finding of guilt as to the use of a handgun charges, it must also be inconsistent with the attempted armed robbery and first degree assault regardless of princip alship a nd acc essory law . Williams explains that the trial court rendered inconsistent verdicts in this case and that such verdicts are not tolerated in bench trials. To support this proposition, Williams cites several Maryland cases including Shell v. State , 307 Md. 46, 512 A.2d 358 (1986), and Stuckey v. State, 141 Md. App. 143, 784 A.2d 652 (2001), where this Court an d the interm ediate -12- appellate court, respectively, determined that the verdicts of guilty were inconsistent and that the inconsistent verdicts of g uilty could not stand. Williams argues that proof that he possessed a handgun was required before the court could convict him of using a handgun and attempting to comm it a robbery with a handgu n. As such , and in accordance with Shell and Stuckey, the trial court s act of acquitting Williams of wearin g, carrying, or transporting a handgun precluded the court from finding Williams guilty of the following crimes: using a handgun in the com mission of a crime of violence an d a felony, attem pting to com mit a robbery using that handgun, and assault in the first degree using that handgun. Williams also contends that the trial judg e failed to ex plain the inco nsistency and that, therefore, the inconsistent verdicts cannot stand.4 Williams concludes that the only appro priate reme dy is 4 In addition, W illiams posit s that the trial judge s actions in the case sub judice violated the Double Jeopardy principles of both the U.S. Constitution and Maryland common law because the charge of wearing, carrying, or transporting a handgun does not contain any additional elements than the charges of using a handgun in the commission of a felony or a crime of violence. Williams explains that a person cannot use a handgun without wearing, carrying, or transporting it on his person and also that the Legislature did not intend a separate punishment for wearing, carrying, or transporting a handgun than it did for using a handgun during the commission of a felony or crime o f violen ce. See Wilkin s v. State, 343 Md. 444, 682 A.2d 247 (1996). Lastly, Williams again cites Stuckey and notes that even though he was convicted of using a handgun in the commission of a felony or crime of violence in the same proceeding in which he was acquitted of wearing, carrying, or transporting a handgu n, it is of no sign ificance. T he Cou rt of Specia l Appeals agreed w ith Williams that these verdicts violated the Fifth Amendment prohibition against double jeopardy and Maryland common law double jeopardy principles. We need not a ddress this Double Jeop ardy contentio n becaus e the State fa iled to present this question in its petition for writ of certiorari and we did not grant certiorari as to that issue. See supra footnote 3 (providing the question presented in the State s petition). The applicable p rovision is R ule 8-131, entitled Scope of review, specifically subsection (b), entitled In Court of Appeals Additional Limitations. This subsection provides, (contin ued...) -13- to reverse or vacate the inconsistent verdicts of guilty as the Court of Special Appea ls did in its unreported opinion. We agree with William s and the C ourt of Sp ecial App eals that the convictions for attempted robbery with a dangerous weapo n, assault in the first degree, and use of a handgun in the commission of a crime of violence and a felony are inconsistent with the acq uittal for wearin g, carrying or transp orting a handg un. Inconsisten t Verdicts Verdicts are inconsistent if they are [l]acking consistency; not co mpatible w ith another fact or claim. BLA CK S LA W DIC TIONA RY 781 (8 th ed. 1999). It has been the position of this Court that inconsistent verdicts in jury trials are permissible in criminal cases.5 See, e.g., Ga lloway v. S tate, 371 Md. 379 , 408, 809 A.2d 6 53, 671 (2002); Hoffert 4 (...continued) in pertinent p art: Unless otherwise provided by the order granting the writ of certiorari, in reviewing a decision rendered by the Court of Special Appea ls or by a circuit court acting in an a ppellate capacity, the Court of Appeals ordinarily will consider only an issue that has been raised in the petition for certiorari or any cross-petition and that has been preserved for appellate review by the Co urt of A ppeals . In addition, we need not addres s the D ouble J eopard y conten tion bec ause ou r holdin g, infra, that the convictions for use of a handgun in the commission of a crime of violence and a felony must b e reversed , renders the iss ue moot. 5 We do not intend our discussion to impact the treatmen t of inconsis tent verdicts in civil cases as, we have previously stated, there remains a distinction between inconsistent verdicts in criminal cases[] and irreconcilab ly inconsisten t jury verdicts in civil matters . . . [in civil cases] irrecon cilably de fective verdicts canno t stand. Southern Management Corp. (contin ued...) -14- v. State, 319 Md. 377, 384, 572 A.2d 536, 540 (1990); Shell, 307 Md. at 54, 512 A.2d at 362; Johnson v. State, 238 Md. 528, 541, 209 A.2d 765, 771 (1965 ). In Hoffert, 319 Md. at 384, 572 A.2d at 540, we stated that, in criminal cases, inc onsi stent verdicts by a ju ry are normally tolerated . . . . and explained that [t]his is so because of the unique role of the jury, and has no impact whatsoever upon the substantive law explicated by the Court. Due to the singular role of the jury in the criminal justice system, there is a reluctanc e to interfere w ith the results of unknow n jury interplay, at least w ithout proof of actual irregularity. (citations omitted). In Galloway, this Court ex plained the rationale for this principle: [C]onv ictions based on inconsistent jury verdicts are tolerated because of the singular role of the jury in the criminal justice system. . . . The general view is that inconsistencies may be the product of lenity, mistake, or a compromise to reach u nanimity, and that continual correction of such matters would undermine the historic role of the jury as the arbiter of questions put to it. 371 Md. at 408, 809 A.2d at 671 (citing United Sta tes v. Pow ell, 469 U.S. 57, 83 L. Ed. 2d 461, 105 S. Ct. 471 (1984)). Notwithstanding, it is also well settled in Maryland that inconsistent verdicts of guilty and not guilty, by a trial judge at a nonju ry trial, are not ordinarily permitted. State v. Anderson, 320 Md. 17, 29, 575 A.2d 1227, 1233 (1990) (citations omitted); see also Sh ell, 307 M d. at 54- 55, 512 A.2d a t 362-6 3. We draw such a distinction be cause of o ur determin ation that: None of these considerations justifying inconsistent jury 5 (...continued) v. Taha, 378 M d. 461, 4 88, 836 A.2d 6 27, 642 (2003 ) (citation s omitte d). -15- verdicts is fairly applicable to the trial of a criminal case before a judge. Th ere is no arb itral element in such a trial. While the historic position of the jury affords ample ground for tolerating the jury s assumption of the power to insure lenity, the jud ge is hardly the voice of the country, even w hen he sits in the jury s place . . . . There is no need to permit inconsistency in the disposition of various counts so that the judge may reach unanimity with himself; on the contrary, he should be forbidden this easy method for resolving doubts . . . . We do not believe we would enhance respect for law or for the courts by recognizing for a judge the same right to indulge in vagaries in the disposition of criminal charges that, for historic reasons, has been g ranted th e jury. Galloway, 371 Md. at 408-09, 809 A.2d at 671 (quoting United States v. Maybury, 274 F.2d 899, 90 3 (2d C ir. 1960 )). When a trial judge renders inconsistent verdicts, [t]he remedy is to reverse o r vacate the verdict entered on the inconsistent guilty verdict. Anderson, 320 Md. at 29, 575 A.2d at 1233; see also Sh ell, 307 Md. at 56, 51 2 A.2 d at 363-6 4; Johnson, 238 Md. at 543, 209 A.2d at 772. Where, however, there is an apparent inconsistency in the verdicts at a nonjury trial, but whe re the trial judge on the reco rd satisfactorily ex plains the ap parent inconsiste ncy, the guilty verdict may stand. Anderson, 320 M d. at 29-30, 5 75 A.2d at 1233; see also Shell, 307 Md. at 56, 512 A.2d at 36 3-64; Johnson, 238 Md. at 544-45, 209 A.2d at 77 2. If there is only an apparent inconsistency which in substance disappears upon review of the trial court s explanation, the guilty verd ict will n ot be va cated. Anderson, 320 Md. at 30, 575 A.2d at 1233 (quoting Shell, 307 M d. at 57, 5 12 A.2 d at 363 ). The case sub judice was not a jury trial. We must therefore determine (1) whether the -16- guilty verdicts w ere inconsis tent with the not guilty verdic t of possess ion of the handgun, and, if so, (2) whether the trial court explained the reasons for that inconsistency. The convictions specifically at issue here are attempted robbery with a dangerous weapon,6 assault in the first degree,7 and use of a handgun in the commission of a crime of violence 6 Md. Code (2002, 2006 Cum. Supp.), § 3-403 of the Criminal Law Article, entitled Robbery with a dangerous weapon states: Prohibited (a) A person may not commit or attempt to com mit robbery under § 3-402 of this subtitle: (1) with a dangerous weapon; or (2) by displaying a written instrument claiming that the person has possession of a dangerous weapon. Penalty (b) A person who vio lates this section is guilty of a felony and on conviction is subject to imprisonment not exceeding 20 years. 7 Md. Code (2002, 2006 Cum. Supp.), § 3-202 of the Criminal Law Article, entitled Assault in the first degree states: Prohibited (a)(1) A person may not intentionally cause or attempt to cause serious physical injury to another. (2) A person may not commit an assault with a firearm, including: (i) a handgun, antique firearm, rifle, shotgun, short-barreled shotgun, or short-barreled rifle, as those terms are defined in § 4-201 of this article; (ii) an assault pistol, as defined in § 4-301 of this article; (iii) a machine gun, as defined in § 4-401 of this article; and (iv) a regulated firearm, as defined in § 5-101 of the Public (contin ued...) -17- and a fel ony. 8 The other charge at issue is the wearing, carrying, or transporting of a 7 (...continued) Safety Article. Penalty (b) A person who vio lates this section is guilty of the felony of assault in the first degree and on con viction is sub ject to imprisonment not exceeding 25 years. 8 Md. Code (2002, 2006 Cum. Supp.), § 4-204 of the Criminal Law Article, entitled Use of handgun or antique firearm in commission of crime states: Prohibited (a) A person may n ot use an antique firearm capable of being concealed on the pers on or any ha ndgun in the commission of a crime of violence, as defined in § 5-101 of the Pu blic Safety Article, or any felony, whether the antique f irearm or handgun is operable or inoperable at the time of the crime. Penalty (b)(1)(i) A person who violates this section is guilty of a misdemeanor and, in addition to any other penalty imposed for the crime of v iolence or f elony, shall be sentenced to imprisonment for not less than 5 years and not exceeding 20 years. (ii) The court may not impose less than the minimum sentence of 5 years and, except as otherwise provided in § 4-305 of the Correctional Services A rticle, the person is not eligible for parole in less than 5 years. (2) For eac h subse quent v iolation , the sentence shall be consecutive to and not concurrent with any other sentence (contin ued...) -18- handgun, which resu lted i n the trial j udge ent ering a verdict of not g uilty. 9 Comm on Law Doctrine of Accesso ryship We agree with the State that there are differences between misdemeanors and felonies, in the application of the law of accessoryship in Maryland, but disagree that those differences render the verdicts consistent, as a matter of law, in this case. This Cou rt has esta blish ed th at the com mon law doctrine of ac cess oryship is applicable to felon ies only. State v. Sowell, 353 M d. 713, 728 A.2d 71 2 (1999); State v. 8 (...continued) imposed for the cr ime o f vio lenc e or f elon y. 9 Md. Code (2002, 2006 Cum. Supp.), § 4-203 of the Criminal Law Article, entitled Wearing, carrying, or transporting handgun states, in pertine nt part: Prohibited (a)(1) Except as prov ided in s ubsect ion (b) o f this sec tion, a person m ay not: (i) wear, carry, or transport a handgun, whether concealed or open, on or about the person; (ii) wear, carry, or k nowing ly transport a handgun, whether concealed or open, in a vehicle traveling on a road or parking lot generally used by the public, highway, waterway, or airway of the State; (iii) violate item (i) or (ii) of this paragraph while on public school property in the State; or (iv) violate item (i) or (ii) of this paragraph with the deliberate purpose of injuring or killing another person. (2) There is a rebuttable presumption that a person who transports a handgun under paragraph (1)(ii) of this subsection transpor ts the handgun knowingly. This provision includes an exception for law enforcement officials and other individuals licensed to carry a handgun, but those exceptions do not apply to the case sub judice. -19- Ward, 284 Md. 189, 396 A.2d 1041 (1979). In Sowell, 353 Md. at 718-19, 728 A.2d at 715 (quoting Ward, 284 Md. at 197 , 396 A.2d 104 6-47), we outlined the differences between the various degrees of principals and accessories. We explained that [a] principal in the first degree is on e wh o act ually c omm its a c rime , either by his own ha nd, or by an ina nimate agency, or by an innocent human agent. Id. To the contrary, a principal in the second degree is one who is guilty of [a] felony by reason of having aided, counseled, commanded or encouraged the commission thereof in his presence, either actual or constructive. Id. A principal in the second degree differs from an ac cessory before the fact beca use an accessory before the fact is one who is guilty of [a] felony by reason of having aided, counseled, commanded or enco uraged the com mission thereof , without having been present either actually or constructively at the moment of perpetration. Id. (emphasis ad ded). La stly, an accessory after the fact is one who, with knowledge of the other s guilt, renders assistance to a felon in the effort to hinder his detection, arrest, trial or punishment. Id. These differences , howev er, are not ap plicable to m isdemean ors becau se, in Maryland, the principles of accesso ryship apply only to fe lonies; as to m isdemean ors, all participants in a crime are considered principals. When a person embrac es a misdemean or, that person is a principal as to that crime, no matter what the nature of the involvement. In the field of felo ny, howev er, the com mon law divides guilty parties into principals and access ories. Hawk ins v. State, 326 Md. 270, 280, 604 A.2d 489, 494 (1992); accord S tate v. Raines, 326 M d. 582, 5 94 n.1, 6 06 A.2 d 265, 2 70 n.1 ( 1992) . -20- In the instant case, the trial judge found Williams guilty of attempted robbery with a dangerous weapon, attempted robbery, and assault in the first degree, all felonies, predicated on his participation as an aider and abettor. The trial judge explained that Williams was not a principal in the first degree as to those crimes, and that it was Henderson and G aines, and not Williams, who actually entered the Citgo station. While the judge did not use the words principal in the second degree, he stated that Williams was guilty as an aider and abettor, that he was com plicit in the events and that there is no q uestion in the court s mind that [Williams] was present. We therefore interpret the trial judge s language and convictions of Williams as an aider and abettor to mean that Williams was found guilty as a principal in the second degree as to his involvement in the crimes mentioned.10 We have held that when a specific inten t is a necessary element of a particular crime one cannot be a principal in the second degree to that offense unless such person entertained such an intent or knew that the princip al in the first deg ree entertain ed 10 See supra State v. Sowe ll, 353 Md. 713, 718, 728 A.2d 712, 715 (1999) (stating that a principal in th e second degree is o ne who is guilty of [a] felony by reason of having aided, counseled, commanded or encouraged the commission thereof in his presence, either actual or constructive ); Pope v. State, 284 Md. 309, 331, 396 A.2d 1054, 1067 (1979) (explaining that [t]he principal in the second degree differs from the principal in the first degree in that he does not do the deed himself or through an innocent agent but in some way participates in the comm ission of the felony by aiding, commanding, counseling or encouraging the actual perpetrator ); see also Ste bbing v. Sta te, 299 Md. 331, 373, 473 A.2d 903, 924 (1984) (explaining that an individual who drives a getaway car and waits outside a convenience store while the perpetrator robs the store, is guilty as a principal in the second degree of robbery and the person who actually robbed the store is guilty as a principal in the first degree of robbery); McBry de v. State, 30 Md. App. 357, 360, 352 A.2d 324, 327 (1976) (stating that persons waiting in a g etaway car during the com mission of a felony . . . are principals in the second degree ) (citing Vincent v. S tate, 220 Md. 232, 151 A.2d 898 (1958)). -21- such in tent. * * * * To be guilty as a principal in the second degree, a criminal intent is necessary. A id or encou ragemen t to another w ho is actually perpetrating a felony will not make the aider or encourager guilty of the crime if it is rendered without mens rea. It is without mens rea if the giver does not know or have reason to know of the criminal in tention of th e other . . . . In gen eral it is the abettor's state of mind rather than the state of mind of the perpetrator which determines the abettor s guilt or innocence . . . [I]ntention includes not only the purpose in mind but also such results as are k nown to be substan tially certain to follow . * * * * To be an accomplice a person must participate in the commission of a crime k nowing ly, voluntarily, and w ith common criminal inten t with the principal of fender, or m ust in some way advocate or encourage the commission of the crime. * * * * [W]hen two or more persons participate in a criminal offense, each is responsible for the commission of the offense and for any other criminal acts done in furtherance of the comm ission o f the of fense o r the esc ape the refrom . State v. Raines, 326 Md. 582 , 594-98, 606 A .2d 265, 271-72 (1 992) (citations omitted). The evidence shows that Williams had the requisite mens rea, i.e., that he knew or had reason to know of the criminal intentions of Henderson and Gaines, which the judge made clear when he stated that the court believes that [Williams was] kno wledgea ble about the events, that [he was] complicit in the events and that [he is] guilty of aiding and abetting in the commission of this attempted robbery. The trial judge then convicted Williams of -22- attempted robbery with a dangero us weap on, attempte d robbery an d assault in the first degree. Williams s complicity in the criminal events, therefore, rested on the fact that he aided and abetted the criminal acts of the others; namely, driving Henderson and Gaines to and from the c rime scene , waiting for them in the car parked behind the gas station and acting to conceal their identity as they got out of the car. Thus, W illiams was a part of the criminal enterprise and was responsible for all crimes committed in furtherance of that enterprise. Notwithstanding, the trial judge also stated that he did not believe that there was enough evidence to find that Williams actually or constructively possessed the handgun. He stated that it would have been a bit of a stretch to find that Williams possessed the handgun in the vehicle, because it was Henderson who actually carried the handgun, and thus found Williams not guilty of wearing, carrying, or transporting it. In doing so, the trial judge rendered inconsistent verdicts and failed to exp lain how W illiams was n ot in joint possession of the handgun used by Henderson and Gaines in the commission of the attempted robbery with a dangerous weapon and the lesser in cluded offen ses. See Newman v. Comm onwea lth, 773 N.E.2d 963, 967 (Mass. 2002) (ex plaining that so long as there is sufficient evidence that an individual in volved in an armed robbery is aware that the perpetrator has a gun, then the individual can be convicted as a joint venturer to the armed robbery charges without ever actually possessing the g un himse lf); see also Price v. State , 111 Md. App. 487, 498, 681 A.2d 1206, 1211 (1996) (noting that in [a crime] in which control or dominion over . . . the instrumen tality of the crime constitutes, or is the element of, the actus reus, the law engages -23- in the legal fiction of constructive possession to impute inferentially criminal responsibility ) (citing Folk v. State, 11 Md. App. 508, 518, 275 A.2d 184, 189 (1971)). According to the evidence, there was only one handgun used in this case. Williams, Henderson, and Gaines traveled to and from the Citgo sta tion togethe r in Williams s car, and W illiams spent substantial time with the others before and after the armed robbery. Because the trial judge held that Williams did not possess the handgun, and the trial judge failed to adequately explain how Williams was not in joint possession of the gun, the verdicts are inconsistent and the guilty verdicts for attempted robbery with a dangerous weapon and assault in the first degree must b e revers ed. The trial judge also found Williams g uilty of attempte d robbery an d attempted theft, two crimes that do not require proof of the use of a handgun in order to sustain a conviction. It, therefore, was not necessary that Williams possess a handgun or have knowledge that Henderson and Ga ines were going to u se a hand gun to commit those crimes. As such, the guilty verdicts for attempted robbery and attempted theft are consistent with the trial court s acquittal of Williams for wearing, carrying or transporting a handgun. Accordingly, those verdicts can stan d. There no longer appears to be any dispute as to whether the convictions for use of a handgun in the commission of a crime of violence and a felony are inconsistent with the acquittal for wearing, carrying or transporting a handgun because Williams contended, and the State conceded, that they are inconsistent. The State, in its brief to this Court, stated that -24- the Court of Special Appeals was correct as to Williams s convictions for the merged misdemeanor offenses of use of a handgun in the commission of a felony and in the commission of a crim e of vio lence . . . . In addition, the State conceded that the court was correct to vacate the handgun use convictions. We agree. We reiterate that when one embraces a misdemeanor, he or she is a principal as to that crime no ma tter wh at the na ture of h is or her i nvolve ment, Hawkins, 326 Md. at 280, 604 A.2d at 494, and, in addition, when two or more persons participate in a criminal offense, each is responsible for the commission of the offense and for any other criminal acts done in furtherance of the commission of the offense or the escape therefrom. Raines, 326 Md. at 598, 606 A.2d at 272. It is therefore irrelevant, in the present case, that some of the crimes committed in furtheran ce of the cr iminal enterp rise were m isdemean ors and tha t Williams did not enter the Citgo s tation. Use of a Handgun vs. Possession of a Handgun Consistent with the case law of this State, an individual must possess a handgun before he or she can use that handgun. For example, in Harris v. S tate, 331 Md. 137, 156-57, 626 A.2d 946, 956 (1993), in evaluating two different statutes, this Court stated that use requires conduct different from possession -- an active, rather than passive, employment of a handgun and further, that use requires that the defendant carry out a purpose or action or make instru mental to an end or pro cess or app ly to advantag e the firearm (quoting -25- Wynn v. State, 313 Md. 533, 543, 546 A.2d 465, 470 (1988 )).11 Furthermore, in Wynn, we analyzed the language of Md. Ann. Code., Art. 27 § 36B (1957, Repl. Vol. 1982, Cum. Supp. 1986)12 to determine whether the Legislature distinguished between the possession of a handgun and use of a handgun, when it enacted that provision. In that case, we examined whether mere pos session of a handgu n is equivale nt to the use of a handgun under those provisions. In examining the preamble to Art. 27 § 36B, now codified as Md. Code (2002 ), § 4-202 o f the Crim inal Law Article (Le gislative find ings), we n oted that the [L]egislature specifically distinguished between the wearing, carrying and transporting of handguns and the use of handguns 11 As we stated in Harris, 331 Md. at 148 n.7, 626 A.2d at 951 n.7: Other jurisdictions also define use as requiring more than possession of the f irearm. See Jord on v. State, 274 Ark. 572, 626 S.W.2d 947, 950 (1982) ( Use of the verb employed rather than in possession compels us to conclude the Arkansas General Assembly intended something more than mere possession ); People v . Funtanilla , 1 Cal.A pp.4th 3 26, 331 , 1 Cal.Rptr.2d 875, 877 (1991) ( [U]se means more than possession of a wea pon or the bare potential for use . . . . ); People v. Hines, 780 P.2d 556, 559 (Colo.1989) ( Use is broad enough to include act of holding weapon in presence of another in manner that causes other person to fear for his safety); Buschauer v. State, 106 Nev. 890, 804 P.2d 1046, 1049 (1990) ( Use of a weapon in the commission of a crime -- indicates that the instrumentality must be used in conscious furtherance of a crime); State v. Chouinard, 93 N.M . 634, 603 P.2d 744, 745 (1979) ( Use is differen t from possession. ). 12 This provision is now codified as, inter alia, two of th e provision s at issue in this case - Md. Code (2002), § 4-203 of the Criminal Law Article (Wearing, carrying, or transporting handgun) and Md. Code (2002), § 4-204 of the Criminal Law Article (Use of handgun or an tique firearm in comm ission of crime). -26- in criminal activity . . . [which] [] clearly indicates that the [L]egislature considered the use of a handgun to be something more than mere illegal possession of a handgun and that the [L]egislature contemplated use of a handgun in an active as oppos ed to a p assive m anner. Wynn, 313 Md. at 541, 546 A.2d at 469. We stated further that, the term use connotes something more than bare possession of a handgun in the commission of a crime of violenc e, and conc luded that, therefore, the Legislature did not equate carrying of a handgun with use of a handgun. 13 Although there exists a clear distinction between posses sion an d use, p ossessio n is a ne cessary co mpon ent of th e term use. In accordance with these definitions and case law, we agree with Williams and the Court of Special Appeals, and conclude that Williams must have possessed the handgun before he could have used it. Becau se Williams embrac ed the entire criminal ente rprise, it was inconsistent for the trial judge to conclude that Williams used the handgun, but did not actually or constructively possess that gun. The trial judge failed to adequa tely explain how Williams was not in possession of the handgun while traveling to the Citgo station with Henderson and Ga ines, but, non etheless, em braced all o f the other c rimes com mitted in furthera nce o f the attem pted armed ro bbery. 13 In addition, the o rdinary legal de finitions of these terms support this proposition. The ordinary legal definition of possession is [t]he fact of ha ving or ho lding prop erty in one s power; the exerc ise or dominion over property. BLACK S LAW DICTIONARY 1201 (8 th ed. 1999). To th e contrary, the ordinary legal definition of use is [t]he application or em ploym ent of someth ing; esp [ecially], a long-continued possession and employment of a thing for the purpose for which it is adapted, as distinguished from a possession and employment that is merely temporary or occasional. BLACK S LAW DICTIO NARY 1577 (8 th ed. 199 9) (emp hasis ad ded). -27- JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. BALTIMORE COUNTY TO PAY THE COSTS IN THIS COURT AND THE COURT OF SPECIAL APPEALS. -28-
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