             REPORTED

IN THE COURT OF SPECIAL APPEALS

           OF MARYLAND




                No. 460

        September Term, 2014




           IN RE: KEVIN T.




   Leahy,
   Reed,
   Eyler, James R.
    (Retired, Specially Assigned),

                  JJ.


    Opinion by, Eyler, James R., J.




        Filed: April 30, 2015
       The Circuit Court for Prince George’s County, sitting as a juvenile court, found

appellant, Kevin T.1 to be involved in the delinquent acts of second-degree assault and

participation in a criminal gang. Appellant was committed to “Level B” placement. A timely

appeal was filed, in which appellant presents the following questions for our review:

       1. Did the juvenile court err in permitting testimony by Officer Daniel Lewis
       that after Kevin T. was taken into custody he “refused to make a statement”?

       2. Was the evidence insufficient to sustain Kevin T.’s conviction for
       participation in a criminal gang under § 9-804(a) of the Criminal Law Article?

       For the reasons that follow, we shall answer (1) yes to the first question, but conclude

that any error was harmless, and (2) yes to the second question. Accordingly, we shall

reverse, in part, the judgments of the circuit court.

                                      BACKGROUND

       In 2013, Austin R. was a student at High Point High School in Prince George’s

County. Austin testified that, in April of 2013, appellant tried to fight him at school because

of “run ins” that Austin previously had with the gang known as MS-13. On August 19, 2013,

Austin was called into the security office of the school. He was warned that members of MS-

13 were planning to fight him. Later that day, appellant, who was accompanied by Michael

C. and Darwin M., followed Austin on his way to class and yelled “Salvatrucha.” Austin

responded “I don’t give an F who you are,” and continued walking to class.




       1
         In the proceedings before the circuit court, appellant is referred to as Kevin O., but
is referred to on appeal as Kevin T.
       Appellant, Michael and Darwin continued to follow Austin. Austin testified that all

three wanted to fight him, “one on one.” Michael said, “Let’s fight,” and threw a punch at

Austin, but missed. Austin then “just went at it” and began to pummel Michael, hitting him

at least 25 times. Michael continued to fight back.      According to Austin, appellant and

Darwin “noticed that [Michael] was getting seriously beat” by Austin, and “jumped in” to

the fight, trying to grab Austin and throw him to the ground. Austin testified that he threw

appellant and Darwin off him and to the ground. School security then broke up the fight, and

everyone was taken into a security office.

       Sergeant George Norris, who was called as the State’s expert on MS-13 gangs in the

Maryland area, explained that MS-13 stands for Mara Salvatrucha, and that the goal of MS-

13 is to be “the most powerful or most controlling gang” in the community. Sergeant Norris

testified that the members of MS-13 achieve this goal “through fear, intimidation and

violence.” He explained that MS-13 members shout out their gang name to announce who

they are and intimidate others. Sergeant Norris stated that Michael C. and Darwin M. were

members or associates of MS-13, and that appellant was “at the least associated with MS-

13.”

       Michael C. was called as a witness for the defense. He testified that he was involved

in a fight with Austin on August 19, 2013, but that Austin initiated the fight, and no one else

was involved. He denied being a member of a gang, and denied having friends that are




                                              2
members of MS-13. He stated that he did not believe that appellant was involved in any gang

activity.

       Additional facts will be introduced in the discussion as they become relevant.

                                        DISCUSSION

                               1. Refusal to Make Statement

       Officer Daniel Lewis, an investigator counselor at High Point High School, testified

that on the day in question, he responded to a call for an altercation outside in the courtyard.

After describing how he and several of the security assistants broke up the fight, the

following exchange occurred:

       [PROSECUTOR]: Did the [appellant] say anything to you regarding the fight?

       OFFICER LEWIS: No, he actually refused to make a statement.

       [DEFENSE COUNSEL]: Objection. Request for mistrial.

       THE COURT: Overruled. Request for mistrial denied.

       [PROSECUTOR]: So he refused to make a statement?

       OFFICER LEWIS: Right, we - -

       [DEFENSE COUNSEL]: Objection, move for mistrial.

       THE COURT: What is the basis for that?

       [DEFENSE COUNSEL]: Your Honor, he has every right to implement his
       Fifth Amendment Right. By the State bringing it that he has implicated his
       Fifth Amendment Right, that violates the right itself and so Your Honor, you
       are not - - he is not receiving a fair trial and that he made no statement, that
       cannot be used against him.



                                               3
       [PROSECUTOR]: And Your Honor, it is not being used against him in any
       way.

       [DEFENSE COUNSEL]: Then it is irrelevant.

       THE COURT: Overruled, objection. [sic]

       Appellant argues that the court’s actions in overruling the objection constituted

reversible error because post-arrest silence is inadmissible as substantive evidence of a

criminal defendant’s guilt.

       The State responds preliminarily that this argument was not properly preserved for

appellate review, because appellant’s argument focuses only on inadmissibility of post-arrest

silence, and there is no evidence in the record that appellant had been placed under arrest at

the time he refused to make a statement. The State posits that the refusal to make a statement

appeared to occur at the time Officer Lewis was breaking up the fight and prior to any arrest.

Therefore, according to the State, the issue is whether the court should have admitted

evidence of appellant’s prearrest silence. That issue was not put before the juvenile court

and not argued on appeal. Alternatively, the State maintains that any error was harmless.

       It would have been error for the court to admit the fact of appellant’s silence into

evidence regardless of whether the refusal took place prior to his arrest (and in the presence

of Officer Lewis) or afterward. As the State concedes, “prearrest silence in police presence

is not admissible as substantive evidence of guilt under Maryland evidence law.” Weitzel v.

State, 384 Md. 451, 461 (2004). And, as appellant points out, “[p]ost-arrest silence is

inadmissible as substantive evidence of a criminal defendant’s guilt, regardless of whether

                                              4
that silence precedes the recitation to the defendant of Miranda advisements.” Kosh v. State,

382 Md. 218, 220 (2004). Our review of the record indicates that it is unclear whether the

refusal to make a statement took place before or after appellant was arrested.

       Assuming the issue was properly preserved, we conclude that any error was harmless

beyond a reasonable doubt. After Officer Lewis mentioned that appellant refused to make

a statement, the prosecutor indicated to the court that said refusal was not being used against

appellant in any way, and she made no attempt to draw an inference of guilt from appellant’s

silence in closing argument. In addition, there is no indication that the court was influenced

by or relied on the evidence of appellant’s refusal to make a statement in its ruling. In short,

no inference was argued, and none was drawn. See Dorsey v. State, 276 Md. 638, 659 (1976)

(error will be harmless when reviewing court, upon independent review, is able to declare

a belief beyond a reasonable doubt that there is no reasonable possibility that the error

contributed to the verdict).

                               2. Sufficiency of the Evidence

       The Court of Appeals has explained the standard of review in juvenile delinquency

cases as follows:

       In a criminal case, the appropriate inquiry is not whether the reviewing court
       believes that the evidence establishes guilt beyond a reasonable doubt, but
       rather, whether after reviewing the evidence in the light most favorable to the
       prosecution, any rational trier of fact could have found the essential elements
       of the crime beyond a reasonable doubt.




                                               5
      We have applied the same standard of review in juvenile delinquency cases.
      Consistently, we have held that the judgment of the trial court will not be
      disturbed unless the trial judge’s findings of fact are clearly erroneous.

In re Anthony W., 388 Md. 251, 261 (2005)(citations and quotation marks omitted).

      Appellant was charged with a violation of Md. Code Ann., Criminal Law Article

(“C.L.”) § 9-804 (2002, 2012 Repl. Vol), which provides:

      § 9-804. Participation in a criminal gang prohibited.

      (a) Prohibited acts. -- A person may not:

            (1) participate in a criminal gang knowing that the members of the gang
      engage in a pattern of criminal gang activity; and

              (2) knowingly and willfully direct or participate in an underlying crime,
      or act by a juvenile that would be an underlying crime if committed by an
      adult, committed for the benefit of, at the direction of, or in association with
      a criminal gang.

      C.L. § 9-801(c) defines the term “criminal gang”:

      c) “Criminal gang” means a group or association of three or more persons
      whose members:

              (1) individually or collectively engage in a pattern of criminal gang
      activity;

             (2) have as one of their primary objectives or activities the commission
      of one or more underlying crimes, including acts by juveniles that would be
      underlying crimes if committed by adults; and

             (3)have in common an over or covert organizational or command
      structure.

      C.L. § 9-801(d) defines “pattern of criminal gang activity” as “the commission of,

attempted commission of, conspiracy to commit, or solicitation of two or more underlying

                                             6
crimes or acts by a juvenile . . . provided the crimes or acts were not part of the same

incident.”

       Finally, C.L. § 9-801(f) is a list of the crimes that constitute an “underlying crime”:

       (1) a crime of violence as defined under § 14-101 of this article 2 ;

       (2) a violation of § 3-203 (second degree assault), § 4-203 (wearing, carrying
       or transporting a handgun), § 9-302 (inducing false testimony or avoidance of
       subpoena), § 9-303 (retaliation for testimony), § 9-305 (intimidating or
       corrupting juror), § 11-303 (human trafficking), § 11-304 (receiving earnings
       of prostitute), or § 11-306(a)(2), (3), or (4) (house of prostitution) of this
       article;

       (3) a felony violation of § 3-701 (extortion), § 4-503 (manufacture or
       possession of destructive device), § 5-602 (distribution of CDS), § 5-603
       (manufacturing CDS or equipment), § 6-103 (second degree arson), § 6-202
       (first degree burglary), § 6-203 (second degree burglary), § 6-204 (third degree
       burglary), § 7-104 (theft), or § 7-105 (unauthorized use of a motor vehicle) of
       this article; or


       2
           C.L. § 14-101(a) defines “crime of violence” as:

       (1) abduction; (2) arson in the first degree; (3) kidnapping; (4) manslaughter,
       except involuntary manslaughter; (5) mayhem; (6) maiming, as previously
       proscribed under former Article 27, §§ 385 and 386 of the Code; (7) murder;
       (8) rape; (9) robbery under § 3-402 or § 3-403 of this article; (10) carjacking;
       (11) armed carjacking; (12) sexual offense in the first degree; (13) sexual
       offense in the second degree; (14) use of a handgun in the commission of a
       felony or other crime of violence; (15) child abuse in the first degree under §
       3-601 of this article; (16) sexual abuse of a minor under § 3-602 of this article
       if . . .; (17) an attempt to commit any of the crimes described in items (1)
       through (16) of this subsection; (18) continuing course of conduct with a child
       under § 3-315 of this article; (19) assault in the first degree; (20) assault with
       intent to murder; (21) assault with intent to rape; (22) assault with intent to
       rob; (23) assault with intent to commit a sexual offense in the first degree; and
       (24) assault with intent to commit a sexual offense in the second degree.


                                               7
       (4) a felony violation of § 5-133 of the Public Safety Article.

       Appellant contends that the adjudication for participation in a criminal gang must be

reversed because, inter alia, the State failed to prove that MS-13 was engaged in a “pattern

of criminal gang activity,” i.e., that members of the gang actually committed (or attempted

to commit) two or more acts of specified criminal conduct.3,4 We concur.

       In order to prove a violation of § 9-804, the State was required to show that the MS-13

gang engaged in a pattern of criminal activity as defined in § 9-801(d). Our review of the

record indicates that there was no evidence before the circuit court regarding “underlying

crimes” that MS-13 either committed, attempted to commit or had conspired to commit.

       Sergeant Norris, the State’s MS-13 expert, never testified to specific crimes

attributable to MS-13. The prosecutor appeared to be getting to that point, but stopped short

of asking about specific criminal activity that would have established that MS-13 engaged

in a pattern of criminal gang activity:

       3
         Appellant also argues that the State failed to satisfy its burden to prove the elements
contained in § 9-804(a)(2), specifically, “that the alleged assault in the school’s courtyard
was ‘committed for the benefit of, at the direction of, or in association with a criminal
gang.’” Because we conclude that the State failed to prove the elements in § 9-804(a)(1), and
that the adjudication of involvement in the delinquent act of participation in a criminal gang
must be reversed on that ground, we need not address appellant’s argument under § 9-
804(a)(2).
       4
         Although appellant did not move for judgment of acquittal on these grounds, we
shall review the issue in this appeal. “[A] defendant in a juvenile proceeding is not required
to make a motion for judgment of acquittal under Rule 4-324(a) in order to preserve his right
to appellate review of the sufficiency of the evidence.” In re Antoine M., 394 Md. 491,
502-03 (2006)

                                               8
[PROSECUTOR]: Sergeant Norris, I am going to direct you specifically to the
gang known as MS-13, what does MS-13 stand for?

SERGEANT NORRIS: MS-13 stands for Mara Salvatrucha.

                              *       *       *

Q. Is the gang known as MS-13, are they prevalent in Prince George’s
County? Do they have a presence in Prince George’s County? My apologies?
[sic]

A. Yes, they do.

Q. Is that - - does that presence concentrate in a certain area in Prince
George’s County?

A. Langley Park and the surrounding areas is the dominant area that they are
present in, however they are present throughout the county.

Q. Okay. Please describe for the Court any - - let me back up, I withdraw that
question. MS-13, what is their basic, what is their basic goal as a gang?

A. To be the most powerful or most controlling gang there is in their
community that they are in.

Q. And what are some of the ways that they achieve this goal?

A. Through fear, intimidation and violence.

Q. What if any role does violence in particular have within MS-13?

THE COURT: State, let me ask a question, what are you trying to get to?

[PROSECUTOR]: I am trying to get to Sergeant Norris talking about
specifically what does MS-13 do with violence and what are typical things that
they - - they say or gang signs that they have maybe before they commit an act
of violence, specifically.

                                  *       *   *



                                          9
       THE COURT: I know that he has been offered as an expert and I have been
       allowing him to testify as an expert and have heard all of the testimony as to
       his training and experience and his occupation. The next question is what do
       you know about this young man in this case and his affiliation.

       [PROSECUTOR]: Yes, Your Honor.

       [PROSECUTOR]: Sergeant Norris, what do you know about [appellant]. And
       any - - if any affiliation he has with MS-13?

       SERGEANT NORRIS: We are viewing the documents that you have as well
       as his associates or co-defendants. It is my opinion that he is at the least
       associated with MS-13.

       In response to appellant’s argument that the evidence was insufficient to sustain the

finding of involvement in the offense of participation in a criminal gang, the State

acknowledges that it was required to prove that members of the gang engage in a pattern of

criminal gang activity. The State proffers that it met this burden by showing that appellant

had committed other crimes as part of the MS-13 gang and points to the following evidence

in the record:

        - Officer Lewis testified that he had several “contacts” with appellant,
       including other incidents of gang activity;

        - Austin testified that appellant had approached him before because of his past
       in the MS-13 gang; and

        - Austin testified that appellant was a member of MS-13 and described
       another incident in which “a group of individuals from MS-13, including
       Kevin, came out and tried to fight him.

       These references in the transcript to non-specific incidents of gang activity and

attempts to fight, however, are insufficient to satisfy the State’s burden of proof. The statute



                                              10
requires the State to prove not only that appellant was a member of a criminal gang, but that

the gang, in this instance MS-13, engaged in a pattern of criminal behavior, i.e., committed,

attempted to commit, or conspired to commit two or more of the specific “underlying crimes”

listed in § 9-801(f). There was no such evidence before the court. Officer Lewis’ testimony

does not establish this required element. Officer Lewis testified as follows:

       [PROSECUTOR]: How do you know [appellant]?

       OFFICER LEWIS: He was attending High Point High School and through
       several contacts that I have had with him at the school.

       Q. What types of contact have you specifically had with him at the school?

       A. Just involvement with different incidents involving his conduct and
       behavior or being where he is not supposed to be.

                                       *     *      *

       Q. Have you been involved in any incidents with him concerning any type of
       gang activity?

       A. Yes.

                                       *     *      *

       Q. Have you had any interactions with [appellant] and any gangs?

       A. Yes.

       Q. Please describe those interactions.

       A. Just different incidents that have taken place with him and his affiliates
       within the school. Again in reference to his conduct or where he is supposed
       to be at in the building or being brought back by the Prince George’s County
       Police on several occasions.



                                             11
                                      *     *      *

       Q. Are they - - is there any specific gang in which that you know of that
       [appellant] is affiliated with?

       A. The gang that is known as the MS-13.

       Similarly, Austin’s testimony that appellant had approached him on previous

occasions and tried to fight him was insufficient to establish that MS-13 was engaged in a

“pattern of criminal gang activity” as that term is defined in the statute. Accordingly, we

conclude that the court’s finding that appellant was involved in the delinquent act of

participation in a criminal gang under C.L. § 9-804 was clearly erroneous, and thus reverse

the circuit court’s finding of involvement on that charge.




                                          THE CIRCUIT COURT FOR PRINCE
                                          GEORGE’S COUNTY’S FINDING OF
                                          INVO LVED IN THE O FFENSE O F
                                          PARTICIPATION IN A CRIMINAL GANG
                                          REVERSED. JUDGMENTS OTHERWISE
                                          AFFIRMED. COSTS TO BE PAID ½ BY
                                          PRINCE GEORGE’S COUNTY AND ½ BY
                                          APPELLANT.




                                            12
