            REPORTED

IN THE COURT OF SPECIAL APPEALS
         OF MARYLAND

               No. 1715

        September Term, 2014



          TODD HARDING


                  v.


      STATE OF MARYLAND



 Zarnoch,
 Leahy,
 Moylan, Charles E., Jr.
  (Retired, Specially Assigned),

                            JJ.


        Opinion by Moylan, J.


 Filed: May 29, 2015
       The appellant, Todd Harding, was convicted in the Circuit Court for Baltimore City

by a jury, presided over by Judge Videtta Brown, of 1) driving under the influence of

alcohol, 2) driving with a suspended license, and 3) refusing to take a breath alcohol test.

On this appeal, the appellant raises the single contention that the evidence was not legally

sufficient to permit Judge Brown to submit the case to the jury.

       To cut to the chase, the appellant does not challenge the adequacy of the State's

evidence to show 1) that he was under the influence of alcohol when he was arrested by the

police at 1:20 a.m. on October 21, 2013; 2) that at that time, his driver's license was

suspended; and 3) that, when taken to the station house, he refused to submit to a breath

alcohol test. The legal sufficiency battle before us focuses exclusively on the narrow issue

of whether the appellant had actually been driving the 1965 Chevy pickup truck in which

Baltimore City firefighters found him as they responded to a call of "a vehicle accident and

report of people trapped" in a truck on Inverness Avenue.

                              Driving: What and When?

       The driving while under the influence statute of which the appellant was convicted

is Maryland Code, Transportation Article, §21-902(a), which provides:

       (a) Driving while under the influence of alcohol:
              (1) A person may not drive or attempt to drive any vehicle while under
              the influence of alcohol.

              (2) A person may not drive or attempt to drive any vehicle while that
              person is under the influence of alcohol per se.

              (3) A person may not violate paragraph (1) or (2) of this subsection
              while transporting a minor.
       §11-114 also provides a definition of the verb "drive."

              "Drive" means to drive, operate, or be in actual physical control of a
       vehicle, including the exercise of control over or the steering of a vehicle
       being towed by a motor vehicle.

       Proof of the crime, moreover, may consist not only of evidence that shows that the

defendant is, when observed by the police or other witnesses, driving in the present tense but

also may arise from a permitted inference that the defendant was guilty of driving under the

influence in the past tense. How, the inquiry may go, did the defendant get to the place

where he is now observed? In the words of Owens v. State, 93 Md. App. 162, 163, 611 A.2d

1043 (1992):

              "This appeal presents us with a small gem of a problem from the
       borderland of legal sufficiency."

                             The Version of the Evidence
                              Most Favorable to the State

       When the emergency call went out at approximately 1:20 a.m. that a vehicular

accident had occurred and it appeared that one or more persons might be trapped in the

crashed vehicle, Baltimore City firefighters were the first emergency personnel to arrive on

the scene. The Baltimore City Police Department and an ambulance arrived shortly

thereafter. Firefighter Jeffery Darby observed what clearly appeared to be a crash scene. An

older model Chevy pickup truck had jumped a curb and crossed the sidewalk and had

"nudged into ... bushes" that bordered a fence on the far side of the sidewalk.

       The vehicle itself was in some distress. Firefighter Darby observed that there was "a


                                            -2-
little bit of ... a white smoke steam coming from the vehicle," as if it were "overheating."

Firefighter Matthew Blair testified that the "white smoke" was coming from the "engine

compartment." When Police Officer Christopher Wesolowski arrived on the scene, the

pickup truck was still smoking. Police Officer Tyrone Thomas observed that the truck was

"partially up on the curb in the bushes" and radiator fluid was "coming from under the truck

going around the curbside, going downhill." The truck was still running.

               "[I]t appeared that the truck was still running and it had no type of
       ignition or anything to turn the truck off. So I don't recall how we actually got
       the truck turned off, but it was no type of ignition. No sign of, like, a key hole
       or anything."

(Emphasis supplied).

       From the raw physics of the event alone, it is clear that the pickup truck had been

moving and had just come to a sudden and abrupt stop as it bounced over the curb and into

the bushes just minutes before the first emergency responders arrived on the scene.

       Turning our attention to the appellant, we note that as Firefighter Blair approached

the pickup truck, he found the appellant "sitting ... like at the driver's wheel, slumped over

... into the bench [the seat]." He testified that the appellant "seemed out of it" and "wasn't

responsive," was intoxicated. Firefighter Darby described the appellant as "slouched over

in the front seat," "laying onto the bench seat," apparently sleeping. Firefighter Benjamin

Filer described the appellant's head as "laying up against the driver's door." The appellant

woke up when Firefighter Blair rubbed his chest. At that point the firefighters left the scene

because it was apparent that no one was "trapped" and the police and the ambulance were

                                             -3-
then on the scene. At that point, the appellant got out of the pickup truck and started walking

away from it.

       Officer Wesolowski first observed the appellant "staggering down the sidewalk going

back and forth" toward his house, which was on the same block of Inverness Avenue where

the truck was then sitting. It seems that the appellant had almost reached home when he lost

control of the pickup truck. When the officer asked the appellant if he "was the driver of the

vehicle," "the appellant didn't confirm or deny that he was driving." The officer described

the appellant's demeanor:

             "He was swearing. He was laughing at times. He was aggressive, then
       he was calm. He was changing his demeanor constantly. I immediately
       smelled an alcoholic beverage when I began talking to him."

       Officer Wesolowski tried to conduct a field sobriety test, but the appellant refused to

cooperate. The officer then arrested him "on suspicion of a DUI [Driving Under the

Influence]." The appellant was thereafter transported to the police station where he refused

to submit to a breath alcohol test.

       When Officer Thomas checked with dispatch to learn the name of the pickup truck's

owner, he was told that it was Tammy Harman, who happened to be the appellant's

girlfriend. The officer called her to have her retrieve the truck. It was "well over an hour"

later that she arrived at the scene. At first "the truck wouldn't start or go in reverse." Officer

Thomas and the man who had come to the scene with Ms. Harman were able to push the

truck off the sidewalk and into the street. The man, who was Ms. Harman's daughter's


                                              -4-
boyfriend,"got into the driver's seat" and drove the truck away. Officer Thomas "didn't know

how he started the vehicle."

                                    A Didactic Interlude

       The evidence thus far recounted is essentially that version of the evidence most

favorable to the State. It is, therefore, that version of the evidence and only that version of

the evidence which we will examine in assessing whether the State met its burden of

production.1 That corpus of evidence, however, was not quite the entire case most favorable

to the State. There was also a permitted inference of consciousness of guilt that would not

have been available a few years ago but has now been added to the State's arsenal. As an

interesting and relatively recent nuance of the law, it behooves us to give it an appreciative

nod.

       Following his refusal to cooperate with Officer Wesolowski in conducting a field

sobriety test, the appellant was arrested and transported to the station house. He was there

asked to submit to a breath alcohol test. He expressly refused to do so. The fact of that

refusal was introduced into evidence by the State and no limitation was placed on the

significance or the weight that the jurors might choose to give it.

       The admissibility of such a refusal as evidence of consciousness of guilt, however,

       1
        Three other witnesses, all called by the defense, were 1) Irvin Fornoff, a resident of the
Inverness Avenue neighborhood; 2) Tammy Harman, the appellant's girlfriend and the owner of
the pickup truck; and 3) Jamie Harman, Tammy Harman's daughter. Their exculpatory testimony
was clearly not a part of that version of the evidence most favorable to the State's case. As
important as it may have been on the ultimate burden of persuasion, it does not figure into our
assessment of whether the State satisfied its burden of production.

                                               -5-
was not always allowed. Prior to 2001, Maryland Code, Courts and Judicial Proceedings

Article, §10-309 dealt with chemical testing for alcohol, drugs, or controlled dangerous

substance and also with the evidentiary consequences of a suspect's refusal to submit to such

a test. In terms of evidentiary consequences, §10-309(a)(2) then provided:

               "No inference or presumption concerning either guilt or innocence
       arises because of refusal to submit. The fact of refusal to submit is admissible
       in evidence at the trial."

(Emphasis supplied).

       At first glance, the two sentences of the then applicable subsection might seem to

have been contradicting each other. Why admit the refusal into evidence if no inference

could then be drawn from it? The second sentence seemed to permit precisely what the first

sentence forbade. In Krauss v. State, 322 Md. 376, 587 A.2d 1102 (1991), however, a

fragmented (4-3) Court of Appeals resolved the ambiguity. The majority opinion held that

the refusal to take the test, albeit technically "admissible in evidence," was "admissible only

where material and relevant to a matter other than guilt or innocence." 322 Md. at 386. Thus

the matter stood for the next ten years. There was no permitted inference of consciousness

of guilt.

       By Chapter 2 of the Acts of 2001, the General Assembly rewrote §10-309(a)(2) so

as to eliminate entirely the language that "[n]o inference or presumption concerning either

guilt or innocence arises because of refusal to submit." The removal of that prohibition also

removed the shackles from what had been the second sentence, a sentence that after 2001


                                             -6-
stood alone without any limitation on the significance a jury might give the evidence of

refusal. The preamble to the amending statute provided:

              "For the purpose of repealing a prohibition against an inference or
       presumption concerning guilt or innocence arising because of a person's
       refusal to submit to a certain test for alcohol ... and generally relating to
       evidence of a person's refusal to submit to a certain test for alcohol ... in
       prosecutions of certain alcohol ... related driving offenses."

(Emphasis supplied). Krauss v. State thereby became a dead letter.

       Wyatt v. State, 149 Md. App. 554, 817 A.2d 901 (2003), explicated the new

dispensation. The State, in convicting the defendant of driving under the influence, had

relied in part on a permitted inference of guilt arising from the defendant's refusal to take a

breathalyzer test at the police station following his arrest. The defendant had timely objected

to the admissibility of the evidence of his refusal to take the test. He also objected to the

failure of the trial judge to give a limiting instruction to the jury.

              "At the close of the case, appellant's counsel requested that the court
       instruct the jury that no inference or presumption of guilt arises because of
       appellant's refusal to submit to a breathalyzer test. When the court failed to
       include such an instruction, counsel took exception."

149 Md. App. at 559. (Emphasis supplied).

       A key contention on appeal was that the State's use of the inference of guilt violated

the defendant's right against self-incrimination as guaranteed by Article 22 of the Maryland

Declaration of Rights. Judge James Eyler's opinion for this Court thoroughly analyzed and




                                              -7-
rejected the contention, albeit by way of well-considered dicta.2 The appellant in Wyatt had

obviously turned to the Maryland Declaration of Rights because the Supreme Court's

decision in South Dakota v. Neville, 459 U.S. 553, 103 S. Ct. 916, 74 L.Ed.2d 748 (1985),

had squarely foreclosed any reliance on the federal Fifth Amendment.

              "Appellant concedes, and we recognize, that the Supreme Court in
       South Dakota v. Neville ... held that the admission into evidence of a
       defendant's refusal to submit to a blood-alcohol test does not offend the
       constitutional right against self incrimination."

149 Md. App. at 570. (Emphasis supplied).

       Judge Eyler's opinion rejected Wyatt's invitation to ignore South Dakota v. Neville

and to base a reversal on independent state grounds.

              "Maryland's courts have closely followed the reasoning employed by
       the Supreme Court in Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826,
       16 L.Ed.2d 908 (1966), upon which the Neville case relies. Finally, we find
       appellant's reasoning to be flawed because other states with constitutional
       language similar to ours have adopted the Neville holding, finding no conflict
       with their own state constitutions."

149 Md. App. at 571. (Emphasis supplied). This Court expressly elected to follow the lead

of South Dakota v. Neville.

              "Finding the reasoning employed by the Supreme Court in Neville
       persuasive, we hold that admission of the evidence of a defendant's refusal to
       submit to a breathalyzer test does not violate the defendant's right against self
       incrimination as guaranteed by Article 22 of the Maryland Declaration of
       Rights."

149 Md. App. at 576-77. (Emphasis supplied). Our opinion in Wyatt further pointed out that


       2
           Although dicta there, Wyatt's conclusion is now a part of our holding here.

                                                 -8-
no less than sixteen state courts had as of 2003 either followed South Dakota v. Neville or

had, indeed, anticipated it. 149 Md. App. at 573-74.

       The Wyatt opinion also dealt with the related requirement that an inference based on

a refusal to submit to a test must not only be constitutionally permitted but must also be

relevant as well. We held in that regard:

              "The amendment to section 10-309 is a legislative declaration of
       relevance to the question of guilt subject, in a given case, to weighing the
       evidence's probative value against undue prejudice and subject to other
       reasons for exclusion. While the amendment makes refusal to take a
       breathalyzer test admissible, admissibility remains subject to the usual
       evidentiary limitations on relevant evidence. The amendment permits, but
       does not require, a factfinder to draw an inference of guilt."

149 Md. App. at 564. (Emphasis supplied).

       In McCormick v. State, 211 Md. App. 261, 65 A.3d. 178 (2013), this Court was

dealing with the distinct, albeit related, issue of the bearing that an inference based on the

refusal to take a field sobriety test (as opposed to a test at the station house following a valid

arrest) might have not on the ultimate merits of guilt or innocence but on the antecedent

issue of probable cause. In her general background discussion of the larger issue, Judge Irma

S. Raker (specially assigned) noted for this Court:

               "In 2001, the General Assembly permitted juries to decide what weight,
       if any, to give the defendant's refusal to take a chemical test in determining
       guilt or innocence. ... Today, trial courts instruct jurors in drunk driving cases
       that they are permitted, if they so choose, to weigh the defendant's refusal to
       take a chemical test when determining guilt or innocence."

211 Md. App. at 272 n.6. (Emphasis supplied).


                                              -9-
       Maryland Pattern Jury Instruction – Criminal (2d Ed., 2013 Supp.) 4:10.5 deals with

"Driving Under the Influence of Alcohol and Driving While Impaired by Alcohol – Effect

of Refusal to Submit to Blood or Breath Test". With respect to what significance a jury

might give a refusal by the defendant to submit to the test, MPJI-Cr 4:10.5 provides:

               "You have heard evidence that the defendant refused to submit to a test
       to determine [his] [her] [alcohol level] [the presence of drugs or a controlled
       dangerous substance]. You must first decide whether the defendant refused to
       submit to a test. If you find that the defendant refused to submit to a test, you
       must then decide whether this refusal is evidence of guilt. Refusal to submit
       to a test may be based on reasons that are consistent with innocence or other
       reasons that are consistent with guilt. In order to decide whether the defendant
       refused to submit to a test and what, if any, weight to give the refusal, you
       should consider all of the evidence in the case."

(Emphasis supplied).

       From the appellant's refusal to submit to a breath alcohol test in this case, the jurors

would have been permitted to infer (although they need not have done so) that the appellant

thereby evidenced a consciousness of guilt. Guilt, of course, is not being drunk per se. That

is not necessarily illegal. Awareness, however, that one was both drunk and driving could

well provoke consciousness of guilt. That combination is illegal. The jurors, of course, were

not required to draw any such inference – but they were permitted to. That they could have

done so contributed to the State's establishing of a prima facie case satisfying, as a matter

of law, its threshold burden of production.

                             Carrying Coals To Newcastle

       In this case, however, the permitted inference of a consciousness of guilt is a classic


                                            - 10 -
instance of carrying coals to Newcastle. The physical evidence permitting a conclusion that

the appellant had been driving the disabled pickup truck was so bounteously sufficient that

the permitted inference of the appellant's consciousness of guilt was completely redundant.

       At this stage of review and on the issue of legal sufficiency, we are not concerned

with whether the State proved beyond a reasonable doubt that the appellant had been driving

the pickup truck shortly before it bounced up over the sidewalk. That is not our call. Indeed,

only the jurors could answer that question (which they did with their verdict of guilty). Our

concern is whether the State established a reasonable likelihood that the appellant had been

driving, enough to permit the jury to consider that possibility.

       In Gore v. State, 74 Md. App. 143, 536 A.2d 735 (1988), the police were called to

the parking lot of a 7-11 store "to investigate a report that a man was asleep behind the

wheel of an automobile." 74 Md. App. at 144. In that case, as here, the police "found a man

... passed out behind the steering wheel." Id. The man was clearly drunk. The question

before this Court was whether it was legally sufficient to permit a finding that the sleeping

man had been driving the car. The argument there was based on the inability of the police

to testify that they "had seen the car move." Judge Robert M. Bell (later Chief Judge of the

Court of Appeals) held for this Court that that failure did not "undermine" the State's case

and that the fact that the defendant had been driving can be inferred from circumstantial

evidence.

              "It is axiomatic that the necessary rational inferences to support a
       finding of guilt beyond a reasonable doubt may be drawn by the trier of fact

                                            - 11 -
       from circumstantial evidence."

74 Md. App. at 149.

       In distinguishing the Gore case from Thomas v. State, 277 Md. 311, 353 A.2d 256

(1976), a key piece of the circumstantial evidence that the defendant had recently been

driving the car was that the officer had felt the hood of the car and "the engine was still

warm to the touch." 74 Md. App. at 144. In Gore the evidence was held to have been

sufficient to establish a prima facie case that the defendant had been driving. The State's case

here is significantly stronger than it was in Gore. In that case, "the engine was warm to the

touch." In this case, three separate witnesses testified to "white smoke" coming from "the

engine compartment" as if it were "overheating." At the same time, there was radiator fluid

"coming from under the truck." Officer Thomas, moreover, testified that "it appeared that

the truck was still running." In Gore, the car and the sleeping defendant were lawfully

parked in the parking lot of the 7-11 and the officer "had no knowledge as to how long the

car had been on the 7-11 lot." 74 Md. App. at 145. In this case, the conclusion seemed

unavoidable that the pickup truck had just bounced over the curb, crossed the sidewalk, and

come to rest in the abutting bushes.

       In Owens v. State, 93 Md. App. 162, 611 A.2d 1043 (1992), the conundrum to be

solved by circumstantial evidence was a bit different.

             "The circumstance is that a suspect was found behind the wheel of an
       automobile parked on a private driveway at night with the lights on and with
       the motor running. Although there are many far-fetched and speculative
       hypotheses that might be conjured up (but which require no affirmative

                                             - 12 -
       elimination), there are only two unstrained and likely inferences that could
       reasonably arise. One is that the vehicle and its driver had arrived at the
       driveway from somewhere else. The other is that the driver had gotten into
       and started up the vehicle and was about to depart for somewhere else."

93 Md. App. at 163. (Emphasis supplied).

       The defendant behind the wheel was indisputably drunk. But had he been driving?

If the man in the driveway had arrived from somewhere else, he had been driving and was

guilty. If, on the other hand, he was about to depart for somewhere else, he had not yet been

driving and was not guilty. This Court needed a circumstantial tiebreaker. Several

possibilities for tiebreakers floundered because of the failure of the State to have presented

readily available evidence.

       As we sought "to break the tie between whether the appellant had not yet left home

or was already abroad upon the town," 93 Md. App. at 167, the initial complaint that brought

the police officer to the scene was found to have had circumstantial significance:

               "Without anything further as to its contents being revealed, it was
       nonetheless in evidence that the thing that had brought Trooper Cottman to
       the scene was a complaint about a suspicious vehicle. The inference is
       reasonable that the vehicle had been driving in some sort of erratic fashion.
       Had the appellant simply been sitting, with his motor idling, on the driveway
       of his own residence, it is not likely that someone from the immediate vicinity
       would have found suspicious the presence of a familiar neighbor in a familiar
       car sitting in his own driveway. The call to the police, even without more
       being shown, inferentially augurs more than that. It does not prove guilt in and
       of itself. It simply makes one of two alternative inferences less reasonable and
       its alternative inference thereby more reasonable."

Id. (Emphasis supplied).

       The initial complaint in this case had even more potency. What brought Baltimore

                                            - 13 -
City firefighters to Inverness Avenue at 1:20 a.m., was an emergency call of "a vehicle

accident and report of people trapped." That call or a parallel call also brought an ambulance

and the police to the scene moments thereafter. That call or calls gave rise to a permitted

inference that the "vehicle accident" had just occurred a brief time before the firefighters

arrived and belie the alternate possibility that the appellant had been quietly sleeping in the

driver's seat for some appreciable length of time. In any event, the circumstantial evidence

in this case was stronger than the circumstantial evidence that was held to have been legally

sufficient in Owens v. State.

       In Atkinson v. State, 331 Md. 199, 627 A.2d 1019 (1993), by contrast, the Court of

Appeals held that the evidence was not legally sufficient to support a conviction for driving

while intoxicated. The defendant there "was sitting intoxicated and asleep in the driver's seat

of his vehicle." 331 Md. at 202. A key factor in that case, however, was that the vehicle was

"lawfully parked on the shoulder of the road." Id. The defendant could well have been

"sleeping it off" and there was no evidence to support even an inference that he had actually

driven the car while intoxicated. In terms of the circumstances that may give rise to an

inference that the car has recently been driven, a key factor is that of where the car is resting

when it is first observed by the police.

               "The location of the vehicle can be a determinative factor in the inquiry
       because a person whose vehicle is parked illegally or stopped in the roadway
       is obligated by law to move the vehicle, and because of this obligation could
       more readily be deemed in 'actual physical control' than a person lawfully
       parked on the shoulder or on his or her own property. In sum, the primary
       focus of the inquiry is whether the person is merely using the vehicle as a

                                             - 14 -
       stationary shelter or whether it is reasonable to assume that the person will,
       while under the influence, jeopardize the public by exercising some measure
       of control over the vehicle."

331 Md. at 217. (Emphasis supplied).

       It was that factor – the location of the car in which a defendant was found drunk and

asleep – that distinguished Atkinson v. State from Dukes v. State, 178 Md. App. 38, 940

A.2d 211 (2008), a case in which this Court held that the evidence was legally sufficient to

support a finding that the defendant had been driving the car. The police found the

defendant "asleep in the driver's seat, and the vehicle keys were on the floor mat below the

steering wheel." 178 Md. App. at 39.

       The vehicle in Dukes, however, in contrast to the vehicle in Atkinson which had been

legally parked on the shoulder of the road, was sitting in a travel portion of a road and in a

turn lane. Judge Hollander's opinion for this Court pointed out that location was the key

factor giving rise to the permitted inference that the defendant had recently driven the car

to the location.

              "Here, the fact that the appellant was intoxicated and asleep in the
       driver's seat of a vehicle that was stopped in the roadway, with its lights on,
       is powerful circumstantial evidence that appellant drove the vehicle to that
       location while intoxicated."

178 Md. App. at 52. (Emphasis supplied).

       That location of the vehicle, as it was in the Dukes case, is a critical factor working

against the appellant in the case at hand. The pickup truck was straddling the sidewalk with

its nose in the abutting bushes as its engine was emitting smoke and radiator fluid was

                                            - 15 -
pouring out onto the sidewalk. The pickup truck was not in a place where it had a lawful

right to come to rest.

       The evidence in this case was legally sufficient to support the convictions.


                                                    JUDGMENTS AFFIRMED; COSTS
                                                    TO BE PAID BY APPELLANT.




                                           - 16 -
