Craig Williams v. State of Maryland, No. 13, September Term, 2018. Opinion by Greene, J.

CRIMINAL PROCEDURE – MARYLAND RULE 4-331(a) – MOTION FOR NEW
TRIAL

The Court of Appeals held that the error of supplying the jury with an instruction that was an
incorrect statement of law was not harmless. The instruction was on the sole charge, first-
degree child abuse, lodged against the Petitioner. We cannot say beyond a reasonable doubt
that the error in no way influenced the verdict. Therefore, we reverse and remand the case for
a new trial.
Circuit Court for Montgomery County                                                         IN THE COURT OF APPEALS
Case No. 128680C
Argued: October 3, 2018                                                                            OF MARYLAND

                                                                                                           No. 13

                                                                                                September Term, 2018

                                                                                    ______________________________________

                                                                                                 CRAIG WILLIAMS

                                                                                                             v.
                                                                                               STATE OF MARYLAND


                                                                                           Barbera, C.J.
                                                                                           Greene,
                                                                                           *Adkins,
                                                                                           McDonald,
                                                                                           Watts,
                                                                                           Hotten,
                                                                                           Getty,

                                                                                               JJ.
                                                                                    ______________________________________

                                                                                               Opinion by Greene, J.
                                                                                            Watts and Getty, JJ. dissent.
                                                                                    ______________________________________

                                                                                                Filed: January 18, 2019

                                                                                    *Adkins, 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 MD. Constitution, Article IV,
  Pursuant to Maryland Uniform Electronic Legal
 Materials Act
                                                                                    Section 3A, she also participated in the decision
 (§§ 10-1601 et seq. of the State Government Article) this document is authentic.
                                                                                    and adoption of this opinion.
                         2019-01-18 12:53-05:00



  Suzanne C. Johnson, Clerk
       In this case, we consider whether the trial court committed harmless error when it

denied the Petitioner’s motion for new trial where the trial court gave a pattern jury

instruction that erroneously omitted an element of the sole offense for which the petitioner

was convicted. On November 21, 2016, a jury in the Circuit Court for Montgomery County

convicted Petitioner Craig Williams (“Mr. Williams”) of first-degree child abuse. On

December 1, 2016, Mr. Williams filed a Motion for New Trial pursuant to Maryland Rule

4-331(a) (“Rule 4-331(a)”). The Circuit Court denied the motion on the grounds that the

erroneous jury instruction did not have an impact on the defense’s theory of the case. The

trial court found that it was not in the interest of justice to grant a new trial. Thereafter,

Mr. Williams noted an appeal to the Court of Special Appeals, which affirmed his

conviction. The Court of Special Appeals held that “the trial court did not abuse its

discretion in determining that the interest of justice did not require granting appellant a new

trial.” Before us, Mr. Williams seeks a reversal of that judgment on the grounds that the

erroneous jury instruction was prejudicial error and warranted a new trial.

                    FACTUAL & PROCEDURAL BACKGROUND

                  Facts Leading to Charge of First-Degree Child Abuse

       Mr. Williams is the father of I.W., who was born on March 3, 2008 and was eight

years old at the time of trial in November 2016. Breana Mapp (“Ms. Mapp”) is I.W.’s

biological mother. Mr. Williams married Nicole Williams (“Mrs. Williams”), his current

wife, after the birth of I.W. Mr. and Mrs. Williams have three sons together. Mr. Williams,

in addition to I.W., has another son from a previous relationship. Mrs. Williams has two
children from a previous relationship. Altogether, Mr. and Mrs. Williams have seven

children between them. For the first four years of the Williams’s marriage, all children

except for I.W. lived with them.

       In 2012, the Circuit Court for Washington County granted Mr. Williams sole

physical and legal custody of I.W. because that court found that Ms. Mapp had sexually

and physically abused I.W. Upon moving in with Mr. and Mrs. Williams, I.W.’s behavior

showed signs of the sexual trauma and abuse he had suffered at the hands of his mother.

For example, I.W. threw tantrums, hit himself and sexually attacked his siblings.1

Christopher Cofone (“Mr. Cofone”), a social worker, began working with I.W. in May of

2014. Monica Reaves (“Ms. Reaves”), a social worker with Child Protective Services,

investigated the report that I.W. had sexually abused his younger half-siblings, but she

never considered removing I.W. from the family home.

       On November 19, 2015, Mr. Cofone determined that he could no longer help I.W.

and recommended that I.W. see a psychiatrist. Although an appointment was scheduled

for December 4, 2015, I.W.’s inappropriate behavior continued.          According to Mr.

Williams, on November 29, 2015, he first wrapped I.W. in plastic at night in an effort to

stop I.W. from hurting himself and the other children. The following night, on November

30, 2015, Mr. Williams again wrapped I.W. in plastic wrap from his shoulder to the knee,

but also secured I.W.’s hands with zip ties. The following morning I.W.’s wrists were

chaffed and by the evening, I.W. had “puffy wrists, was drooling, and was not talking.”


1
 I.W. would, among other things, insert objects into his rectum to force himself to defecate
and then hide the feces throughout the house.
                                             2
       Mr. Williams took I.W. to Shady Grove Hospital where I.W. was subsequently

transferred to the Children’s Hospital within Shady Grove. There, doctors diagnosed I.W.

with compartment syndrome2 and performed surgery on I.W.’s wrists.

                           Facts Leading to Motion for New Trial

       On January 7, 2016, the grand jury for Montgomery County indicted Mr. Williams

on one count of first-degree child abuse. A conviction of first-degree child abuse requires

the State prove beyond a reasonable doubt that Mr. Williams abused I.W. and that the abuse

resulted in “severe physical injury.” Maryland Code Ann., Criminal Law Article § 3-

601(b)(1)(ii) (2002, 2012 Repl. Vol., 2018 Supp.) (“Crim. Law Art.”). “Severe physical

injury” is a physical injury that:

       1. creates a substantial risk of death; or
       2. causes permanent or protracted serious:
             A. disfigurement;
             B. loss of the function of any bodily member or organ; or
             C. impairment of the function of any bodily member or organ.
Crim. Law Art. § 3-601(a)(5)(iii). For the jury instructions, at the request of both parties,

the trial court instructed the jury using the Maryland Criminal Pattern Jury Instructions

(“MPJI-CR”). The MPJI-CR defined “severe physical injury” in pertinent part as:

       [P]hysical injury that (a) causes a substantial risk of death, (b) permanent or
       protracted serious disfigurement, or (c) causes loss or impairment of a
       member or organ of the body or its ability to function properly.


2
  Dr. Martin explained at trial that muscles, muscle groups, and accompanying nerves,
which are surrounded by fascia, collectively constitute a compartment. According to Dr.
Martin, compartment syndrome occurs when swelling in the compartment becomes so
pronounced “that fascia, that thick covering, doesn’t expand and allow for more volume,
the muscle can actually collapse on itself due to the pressure and can’t receive its
appropriate blood flow, the muscles and the nerves.”
                                             3
Maryland State Bar Ass’n, Maryland Criminal Pattern Jury Instructions 4:07.1, at 472-73

(2016). After the jury found Mr. Williams guilty, Mr. Williams’s counsel concluded that

the pattern instruction was incorrect because it did not make clear that the terms “permanent

or protracted” applied to both loss of function and impairment as well as disfigurement.

       This error was confirmed by the Honorable Michael Mason, who was not the

presiding judge but at the time served as the Chair of the Maryland State Bar Association’s

Criminal Subcommittee of the Maryland Pattern Jury Instructions Standing Committee. In

an email exchange between Mr. Williams’s counsel and Judge Mason, Judge Mason

explained that the Criminal Subcommittee remedied the error by changing the pattern

instruction on “severe physical injury.” Compare MPJI-CR 4:07.1, at 472-73 (2d ed.

2017)3 with MPJI-CR 4:07.1 at 472-73 (2d ed. 2016). There is no dispute between the

parties that the instruction was erroneous. On December 1, 2016, Mr. Williams filed a

motion for new trial and referenced the email exchange between his counsel and Judge

Mason. At the close of that hearing, the trial judge denied the motion for new trial.

                                      Appellate History

       On February 17, 2017, Mr. Williams noted an appeal to the Court of Special Appeals

in which he questioned whether the trial court properly exercised its discretion in denying

his motion for new trial. On January 23, 2018, the Court of Special Appeals affirmed the

trial court decision in an unreported opinion, holding that the trial court did not abuse its


3
 “Severe physical injury means: . . . (3) physical injury that (a) creates a substantial risk
of death, (b) causes permanent or protracted serious disfigurement, or (c) causes
permanent or protracted loss or impairment of the function of any bodily member or
organ.”
                                              4
discretion in denying Mr. Williams’s motion for new trial. The Court of Special Appeals

first cited the broad discretion that is given to trial courts in granting motions for new trial.

It then noted that the trial court “reviewed the erroneous instruction in light of the defense’s

theory of the case and in conjunction with the evidence adduced at trial.” The intermediate

appellate court, however, failed to apply the appropriate standard of review in this case,

and mistakenly declared that the trial court properly weighed all factors in its interest of

justice determination.

       This Court granted Mr. Williams’s petition for writ of certiorari on May 9, 2018.

We granted certiorari to answer the following question:

       D[id the] circuit court abuse its discretion in denying a motion for new trial
       where the court gave a pattern jury instruction and, after the jury render[ed]
       its verdict, the court, prosecution, and defense all acknowledge[d] that the
       instruction erroneously omitted an element of the offense for which the
       defendant was convicted?

459 Md. 170, 185 A.3d 63 (2018).

                                        DISCUSSION

       Mr. Williams moved for a new trial under Maryland Rule 4-331(a). This Rule states

that the court may, on motion filed by the defendant within ten days after the verdict, order

a new trial if it finds that a new trial would be in the interest of justice. Md. Rule 4-331(a).

In his motion, Mr. Williams asserted that the faulty jury instruction warranted the granting

of a new trial because the instruction with regard to “severe physical injury” was unclear

and therefore lowered the standard under which the jury could convict Mr. Williams.




                                               5
Specifically, according to Mr. Williams, the jury instruction did not make clear the

definition of “severe physical injury” as defined in Crim. Law Art. § 3-601.

                                    Standard of Review

       At the outset, we observe that the parties disagree about the appropriate standard of

review of the trial judge’s denial of the motion for new trial. Petitioner Mr. Williams argues

that because the jury had been misled as to the elements of the crime, the Circuit Court’s

discretion to deny the motion was non-existent. Mr. Williams also cites to Merritt v. State,

367 Md. 17, 785 A.2d 756 (2001), and contends that a harmless error standard is

appropriate for appellate review. Ultimately, Mr. Williams maintains that under either an

abuse of discretion or harmless error standard of review, the Court of Special Appeals and

trial court should be reversed. Respondent State of Maryland argues that the standard of

review in this case should be abuse of discretion. Respondent concedes that “in all but a

very [few] instances, none of which are present here, this Court reviews a trial court’s

ruling on a Rule 4-331(a) new trial motion for an abuse of discretion.”

       Respondent’s argument that the abuse of discretion standard should apply in this

case is primarily based on a claim that this Court’s Opinion in Merritt is flawed. According

to Respondent, Merritt is flawed because the Court relied on cases that either had not been

queued up by a motion for new trial or did not “review[] the trial court’s interest of justice

determination.” Specifically, Respondent argues that Merritt’s references to Sherman v.

State, 288 Md. 636, 421 A.2d 80 (1980), Taylor v. State, 352 Md. 338, 722 A.2d 65 (1998),

State v. Stanley, 351 Md. 733, 720 A.2d 323 (1998), Pinkney v. State, 350 Md. 201, 711

A.2d 205 (1998), and Ware v. State, 348 Md. 19, 702 A.2d 699 (1997) are inapposite

                                              6
because the trial court in those cases “either found error when it did not exist or found that

no error occurred when it had.”

                                     Abuse of Discretion

       Pursuant to Rule 4-331(a), a trial judge may order a new trial if the court finds it is

in the interest of justice to do so. This decision is ordinarily reviewed under the abuse of

discretion standard, which this Court made clear in Buck v. Cam’s Broadloom Rugs, Inc.

328 Md. 51, 57, 612 A.2d 1294, 1297 (1992) (“[A] trial court’s order denying a motion for

a new trial will be reviewed on appeal if it is claimed that the trial court abused its

discretion. However, an appellate court does not generally disturb the exercise of a trial

court’s discretion in denying a motion for a new trial.”) (quoting Mack v. State, 300 Md.

583, 600, 479 A.2d 1344 (1984)). Generally, abuse of discretion is the appropriate standard

because the decision to grant or deny a motion for new trial under Rule 4-331(a) “depends

so heavily upon the unique opportunity the trial judge has to closely observe the entire trial,

complete with nuances, inflections, and impressions never to be gained from a cold

record[.]” Buck, 328 Md. at 59, 612 A.2d at 1298.

       The abuse of discretion standard is largely deferential to the trial judge’s decision.

To reverse the denial of a new trial on appeal, when utilizing the abuse of discretion

standard, the reviewing court must find that the “degree of probable prejudice [was] so

great that it was an abuse of discretion to deny a new trial.” Merritt, 367 Md. at 29, 785

A.2d at 763 (quoting Wernsing v. General Motors Corp., 298 Md. 406, 420, 470 A.2d 802,

809 (1984)). “Abuse occurs when a trial judge exercises discretion in an arbitrary or



                                              7
capricious manner or when he or she acts beyond the letter or reason of law.” Campbell v.

State, 373 Md. 637, 666, 821 A.2d 1, 18 (2003) (citation omitted).

            An Exception to the Abuse of Discretion Standard: Merritt v. State

       This Court in Merritt made an exception to the general rule that a trial court’s

decision on a motion for new trial is reviewed for an abuse of discretion. 367 Md. at 30-

31, 785 A.2d at 764. Merritt explained:

       [W]hen an alleged error is committed during the trial, when the losing party
       or that party’s counsel, without fault, does not discover the alleged error
       during the trial, and when the issue is then raised by a motion for a new trial,
       we have reviewed the denial for the new trial motion under a standard of
       whether the denial was erroneous. . . . Also, in these criminal cases where
       we concluded that error did occur, the matter of prejudice was reviewed
       under the harmless error standard of [review].

Id. at 31, 785 A.2d at 764-65 (citing Taylor v. State, 352 Md. 338, 344, 354, 722 A.2d 65,

68, 72–73 (1998); State v. Stanley, 351 Md. 733, 749, 720 A.2d 323, 330–331 (1998);

Pinkney v. State, 350 Md. 201, 217–218, 711 A.2d 205, 213–214 (1998); Ware v. State,

348 Md. 19, 34–35, 54–55, 702 A.2d 699, 706–707, 716 (1997)).4

       Merritt queued up for this Court the question of whether the denial of a motion for

new trial can be erroneous given “the fact that prejudicial documentary evidence which

was never entered into evidence was erroneously submitted to the jury at the start of its

deliberations.” 367 Md. at 23, 785 A.2d at 760. In that case, the State discovered two days

after the trial ended that an exhibit that had been marked for identification, but had not been

admitted into evidence, was present in the jury room during the jury’s deliberations. Id. at


4
 Respondent contends that Merritt does not apply in this case because “the trial court
assumed the error and considered its effect on the balance of [Mr.] Williams’s trial.”
                                              8
21-22, 785 A.2d at 759. The exhibit “included the application for the search and seizure

warrant for Merritt’s home, the warrant, the affidavit in support of the warrant, the

inventory return, and a copy of Merritt’s taped statement to police[.]” Id. The presence of

the exhibit in the jury room was the result of the courtroom clerk’s “erroneous belief that

the exhibit had been admitted into evidence” and was not the fault of either party. Id. at

22, 785 A.2d at 759. The trial court denied Merritt’s motion for new trial and concluded

that there was “overpowering evidence” in the case to convict him. Id. at 23, 785 A.2d at

760. We reversed. Id. at 35, 785 A.2d at 767.

          In analyzing our appellate review of rulings on motions for new trials, we observed

that “sometimes a trial court has virtually no discretion to deny a new trial motion[.]” Id.

at 30, 785 A.2d at 764. Merritt’s holding recognized the limitation of an abuse of discretion

standard, such as in the situation where an error occurred at trial and was not discovered

by either party until after the trial, neither party was at fault for not discovering the error,

and the error was raised by a motion for new trial. We ultimately concluded in Merritt that

“the result would be the same whether the denial of the motion for a new trial is reviewed

under an abuse of discretion standard or under an error standard.” Id. at 31-32, 785 A.2d

at 765.

          Maryland appellate courts have applied the Merritt standard in various contexts

since 2001. Nero v. State, 144 Md. App. 333, 365-66, 798 A.2d 5, 24 (2002) (“[T]he denial

of appellant’s motion for new trial with respect to the police report should be reviewed

under the standard of whether there was error committed and, if so, whether it was harmless

error.”); Jenkins v. State, 375 Md. 284, 299, 825 A.2d 1008, 1017 (2003) (“Thus, the

                                               9
standards of review in Merritt and in this case are different. We will review the trial judge’s

denial of petitioner’s motion for a new trial in the case sub judice under an abuse of

discretion standard.”). Due to the high burden set by Merritt, our appellate courts have

generally reviewed the trial court’s decision for an abuse of discretion. See id.

         Applying a Harmless Error Standard is Appropriate in the Present Case

       Here, there is no debate that an error, the delivery of the faulty jury instruction,

occurred during the trial. Respondent and Mr. Williams agree that based on the MPJI-CR

jury instruction that was given, the jury could convict Mr. Williams of first-degree child

abuse as long as he “cause[d] loss or impairment of a member or organ of the body or its

ability to function properly.” The instruction did not make clear that the loss or impairment

must be either “permanent or protracted serious” as required by Crim. Law Art. § 3-

601(b)(1)(ii). Thus, the trial court committed error when it gave the jury an instruction that

effectively lowered Respondent’s burden for establishing Mr. William’s guilt beyond a

reasonable doubt.

       Under the harmless error standard of Dorsey v. State, 276 Md. 638, 350 A.2d 665

(1976), applied in Merritt, we next consider whether the losing party, without fault, did not

discover the alleged error during trial. See Merritt, 367 Md. at 31, 785 A.2d at 765. Here,

the erroneous jury instruction was “given at the behest of both parties.” Before us, Mr.

Williams argues that he is not at fault because the use of pattern jury instructions is

encouraged by this Court. Additionally, Mr. Williams argues that he was not the only party

to rely on the pattern jury instructions.

       This Court, in State v. Brady, noted that:

                                              10
       [T]he appellate courts of this State have often recognized error in the trial
       judge’s instructions, even when there has been no objection, if the error was
       likely to unduly influence the jury and thereby deprive the defendant of a fair
       trial. The premise for such appellate action is that a jury is able to follow the
       court’s instructions when articulated fairly and impartially. It follows,
       therefore, that when the instructions are lacking in some vital detail or convey
       some prejudicial or confusing message, however inadvertently, the ability of
       the jury to discharge its duty of returning a true verdict based on the evidence
       is impaired.
393 Md. 502, 507, 903 A.2d 870, 873 (2006) (citing State v. Hutchinson, 287 Md. 198,

204, 411 A.2d 1035, 1039 (1980)). In Brady, Terrell Brady (“Mr. Brady”) was charged

with attempted murder and the court delivered an erroneous jury instruction on the doctrine

of transferred intent. 393 Md. at 504-06, 903 A.2d at 871-73. On direct appeal, Mr. Brady

challenged the jury instruction. Id. at 506, 903 A.2d at 873. We reversed Mr. Brady’s

conviction and observed that the “responsibility for avoiding such circumstance rests with

the trial judge who must advise the jury on every matter stemming from the evidence which

is vital to its determination of the issues before them.”5 Id. at 507-08, 903 A.2d at 873. As

such, in the present matter, we do not ascribe any fault to either Mr. Williams or

Respondent.6



5
  The Dissenting Opinion suggests that “Maryland Rule 4-325(e) is devoid of any exception
that alleviates the responsibility of a defendant’s counsel to object where a trial court
employs a pattern jury instruction.” Yet, the last sentence in Rule 4-325(e) provides that
“[a]n appellate court, on its own initiative or on the suggestion of a party, may however
take cognizance of any plain error in the instructions, material to the rights of the defendant,
despite a failure to object.” Although plain error is not an issue in this case, Brady is
significant in its recognition of the court’s role in giving proper jury instructions.
6
  The Dissenting Opinion contends that fault for the erroneous jury instruction must be
placed with a particular party and that in this case, fault should be attributed to Mr.
Williams. We maintain that fault need not be attributed in this case. If we were to assign
fault, it should be placed with the trial court because this Court and the Court of Special
(continued . . .)
                                              11
       The last element of the harmless error review under Merritt requires that the issue

be raised in writing via a motion for new trial. Mr. Williams’s pleading fulfills this

requirement.

       Merritt provides a guide for when we will review “denials of new trial motions []

under a standard of whether the court erred rather than under an abuse of discretion

standard.” 367 Md. at 30-31, 785 A.2d at 764. Three elements must be present: an alleged

error occurred during trial that was not discovered during trial, the losing party was without

fault for not discovering the error during the trial, and the error is raised in writing. Here,

the three elements are present, and we, thus, review the trial court’s denial of Mr.

Williams’s motion for new trial under the harmless error standard.

       Respondent contends that Merritt does not apply in this case because “the trial court

assumed the error and considered its effect on the balance of Williams’s trial[.]”

Alternatively, Respondent suggests that any reliance on Merritt would be misguided and

argues that the analysis within Merritt is flawed. Respondent points out factual differences

between Merritt and the cases cited therein7 to support its proposition that harmless error

review is inappropriate in the immediate instance. Respondent does not adequately explain

why these factual differences amount to a flawed inferential step between the standard


(. . . continued)
Appeals have been steadfast in encouraging that trial counsel and our trial courts rely on
the pattern jury instructions. See, e.g., Minger v. State, 157 Md. App. 157, 161 n. 1, 849
A.2d 1058, 1060 n.1 (2004) (“Appellate courts in Maryland strongly favor the use of
pattern jury instructions.”).
7
  Taylor v. State, 352 Md. 338, 722 A.2d 65 (1998); State v. Stanley, 351 Md. 733, 720
A.2d 323 (1998); Pinkney v. State, 350 Md. 201, 711 A.2d 205 (1998); Ware v. State, 348
Md. 19, 702 A.2d 699 (1997).
                                              12
applied in Merritt and the cases used to support it. We, nevertheless, explore the cases that

we relied on in Merritt.

       In Taylor, the defendant, Lisa Taylor (“Ms. Taylor”), was convicted of conspiracy

to distribute heroin and possession with intent to distribute. 352 Md. 338, 340, 722 A.2d

65, 66 (1998). The jury raised questions while deliberating and the trial judge answered

the questions out of the presence of the defendant, the State, and defense counsel. Id. The

trial court deemed the error harmless and denied a new trial. Id. at 344, 722 A.2d at 73.

We reversed and stated that “if the record is silent as to prejudice resulting from a violation

of the defendant’s right to be present, an appellate court will not ‘speculate’ as to harm;

instead prejudice will be presumed, and the conviction will be reversed.” Id. at 349, 722

A.2d at 70. Additionally, we stated that “an ambiguous record does not affirmatively show

anything and, consequently, cannot support an harmless error argument.” Id. at 351, 722

A.2d at 71.

       In Stanley, Larry D. Stanley (“Mr. Stanley”), was convicted of various assault-

related crimes. 351 Md. 733, 737, 720 A.2d 323, 324 (1998). During a bench trial, the

trial judge asked the State’s attorney if she had threatened the witness with perjury charges

in order to chill the witness’s testimony. Id. at 740-41, 720 A.2d at 325-26. The State’s

Attorney was not a sworn witness at the time of the judge’s inquiry. Id. Mr. Stanley argued

that this was error on the part of the trial judge and warranted a new trial. Id. at 740, 720

A.2d at 326. We noted that the State’s Attorney not being a sworn witness was irrelevant

and therefore a “harmless error” because the trial judge accepted as true the witness’s


                                              13
account of her conversation with the State’s Attorney. Id. at 749, 720 A.2d at 331. The

State’s Attorney’s unsworn statement therefore was not improper, “was a general

admonition, not a threat,” and did not harm the defendant enough to warrant a new trial.

Id. at 754, 720 A.2d at 333.

       In Pinkney, the trial judge erred in finding that the defendant, Eric Pinkney (“Mr.

Pinkney”), had waived his right to be present at trial. 350 Md. 201, 205-06, 711 A.2d 205,

207 (1998). We held that there was error in not properly investigating why Mr. Pinkney

had failed to appear for trial. Id. at 223, 711 A.2d at 216. Additionally, we held that the

record must reflect that an adequate inquiry was made to ensure that a defendant’s absence

was not in fact involuntary. Id. We could not presume from a silent record that a waiver

had occurred. Id. at 217, 711 A.2d at 213.

       In Ware, the defendant, Darris Ware (“Mr. Ware”), was convicted of first-degree

murder. 348 Md. 19, 24, 702 A.2d 699, 701 (1997). During the trial, a witness who was

testifying against Mr. Ware had a sentence reconsideration motion pending. Id. at 32-33,

702 A.2d at 705. The State did not disclose the pending sentence reconsideration and

emphasized in closing that the witness had no reason to lie. Id. at 54, 702 A.2d at 716. We

held that the potential impact of this non-disclosed information was sufficient to

“undermine [the] confidence in the outcome of the proceeding.” Id.

       These four cases all provide an adequate foundation for the rule stated in Merritt

and which we rely on today. Although Respondent attempts to discredit Merritt and its

progeny based on procedural differences in the cases, we reject this argument. Our review

of error is not causally related to the procedural posture of the trial court’s decision. In

                                             14
other words, we review error no differently when the error is presented in a motion pursuant

to Rule 4-331(a) than we do in a case involving a direct appeal from a verdict. Although

the four cases are procedurally distinct from the instant case, they all involve scenarios in

which an error was committed and then determined either to be “harmless” or “prejudicial.”

We determined that the error in Merritt was prejudicial.         Likewise, we review the

prejudicial effect of the error in the present case. For these reasons, we are neither

persuaded that our analysis in Taylor, Stanley, Pinkney, and Ware was improper, nor that

the analysis in Merritt was flawed.

       Respondent also argues that Merritt is flawed in its reliance on Sherman v. State. In

Sherman, the appellant, Robert Sherman (“Mr. Sherman”), was tried on five counts related

to the unlawful and willful use of funds. 288 Md. 636, 637, 421 A.2d 80, 80-81 (1980).

Despite the defendant’s objection, the jury had before it during deliberations Mr.

Sherman’s indictment, which included two counts that he had been acquitted of at the close

of evidence. Id. at 638, 421 A.2d at 81. The State first argued that the issue was not

properly preserved for appellate review because only the “count” was referenced in the

defense’s objection rather than the “indictment.” Id. at 640, 421 A.2d at 82. This Court

determined that the issue was properly before it and that the availability of the indictment

in the jury room was reversible error and remanded the case for a new trial. Id. at 640, 642,

421 A.2d at 82, 83.

       In the present case, Respondent contends that “[t]he problem with the Court’s

reliance on Sherman to apply a harmless error review to the trial court’s Rule 4-331(a)

ruling, however, is that, in Sherman, the Court was not reviewing a trial court’s decision

                                             15
on a new trial motion.” The Court in Sherman was “determining on direct appeal whether

the jury’s review of a charging document containing ‘dead counts’ was erroneous in the

first instance[.] Consequently, the Sherman Court only considered whether the error was

harmless.” Respondent asserts that Sherman is not relevant because it fails to analyze

harmless error in the context of a Rule 4-331(a) motion. Sherman never reached the interest

of justice determination.     According to Respondent, therefore, Merritt’s reliance on

Sherman for an interest of justice analysis was flawed. Because Respondent rejects the

analysis in Merritt, it rejects Merritt’s application in the instant case.

       Respondent concludes that in the present case, a new trial is not warranted. We

disagree. “When we have determined that the trial court erred in a criminal case, ‘reversal

is required unless the error did not influence the verdict.’” Porter v. State, 455 Md. 220,

234, 166 A.3d 1044, 1052 (2017) (quoting Bellamy v. State, 403 Md. 308, 333, 941 A.2d

1107 (2008)). In other words, “an error is harmless only if it did not play any role in the

jury’s verdict.” Id. at 234, 166 A.3d at 1052 (emphasis omitted). As we do in all cases,

where a party has alleged error, we look to see if there was error and inquire into whether

the error prejudiced the defendant. If our answer is no, the inquiry ends. If we determine

that the error prejudiced the defendant, we analyze how the error prejudiced the defendant.

If, as in this case here, we cannot say beyond a reasonable doubt that the error in no way

influenced the verdict, we reverse and remand the case for a new trial. In the instant case,

Mr. Williams was charged with, and the jury was instructed on, one crime, first-degree

child abuse. For this reason, we are not persuaded that the error in the instruction in no

way influenced the jury’s verdict of first-degree child abuse.

                                               16
       Furthermore, in reviewing Merritt, we emphasize that “See” citations were used for

support of the holding in that case. A “See” citation indicates that “there is an inferential

step between the authority cited and the proposition it supports.” THE BLUEBOOK: A

UNIFORM SYSTEM OF CITATION R. 1.2(a), at 54 (Columbia Law Review Ass’n et al.

eds., 19th ed. 2010). Although not procedurally identical cases, Merritt and Sherman were

factually similar such that an inference was reasonable to support the holding in Merritt.

Specifically, Sherman applied the Dorsey standard and the Court was unable to “upon its

own independent review of the record, declare beyond a reasonable doubt that the error in

no way influenced the verdict.” Sherman, 288 Md. at 641, 421 A.2d at 82. Whereas,

Merritt considered whether an error that had occurred at trial was harmless error beyond a

reasonable doubt, and, if so, was the error prejudicial. The inference is that review of an

error under Merritt is no different than review of an error under Sherman, i.e., the harmless

error standard we applied in Dorsey. For the reasons explained herein, we re-affirm Merritt

and hold that our review of the Circuit Court’s denial of the motion for a new trial in this

case is subject to the harmless error standard.

                                   The Dorsey Standard

       Having established that harmless error is the appropriate standard of review of the

trial court’s denial of Mr. Williams’s motion for new trial, we must now determine whether

the erroneous jury instruction was prejudicial.        Dorsey provides the standard for

determining whether an error is prejudicial or not:

       [W]hen an appellant, in a criminal case, establishes error, unless a reviewing
       court, upon its own independent review of the record, is able to declare a


                                             17
       belief, beyond a reasonable doubt, that the error in no way influenced the
       verdict, such error cannot be deemed “harmless” and a reversal is mandated.

276 Md. 638, 659, 350 A.2d 664, 678 (1976). Dorsey, in its analysis of harmless error

review, cited to the United States Supreme Court case Chapman v. California, 386 U.S.

18, 87 S. Ct. 824 (1967). Id. at 648, 350 A.2d at 671. In Chapman, the prosecutor’s

argument and trial judge’s instruction impressed upon the jury that it may imply guilt on

behalf of the petitioners because of the petitioners’ failure to testify. 386 U.S. at 18, 87 S.

Ct. at 825. The Supreme Court held that the harmless error standard applied and concluded

that the error was not harmless. Id. at 24, 87 S. Ct. at 828. In that case, the Supreme Court

noted that “there may be some constitutional errors which in the setting of a particular case

are so unimportant and insignificant that they may, consistent with the Federal

Constitution, be deemed harmless, not requiring the automatic reversal of the conviction.”

Id. at 22, 87 S. Ct. at 827. In other words, Dorsey is consistent with Chapman in analyzing

whether an error is great enough to warrant a new trial, or “so unimportant . . . that [it] be

deemed harmless[.]” Id.

       Respondent argues, much like the trial judge concluded, that because Mr. Williams

did not contest the extent of I.W.’s injuries at trial, the instruction did not impact the

defense’s theory of the case, and the error was, therefore, not prejudicial. Respondent notes

that the crux of Mr. Williams’s trial strategy was to emphasize Mr. Williams’s desire to

protect his family. In other words, Respondent asserts that the extent of I.W.’s injuries

were ancillary to Mr. Williams’s main defense. According to Respondent, it was almost




                                              18
presumed at trial that I.W.’s injuries were sufficient to be considered “permanent or

protracted serious.”

       The trial judge, in her ruling on the motion for a new trial, stated that “it seems to

me that the error . . . did not have a substantial impact on the defense theory in the case in

my view.” Thus, the trial judge ruled that it was not in the interest of justice to grant Mr.

Williams a new trial. In her interest of justice analysis, the trial judge failed to analyze Mr.

Williams’s defense in conjunction with Respondent’s burden to prove beyond a reasonable

doubt the elements of first-degree child abuse. The interests of justice analysis should not

discount Respondent’s burden to prove the “permanent or protracted serious” element of

first-degree child abuse. In other words, Respondent is not relieved of its burden of proof

because of a perceived failure to contest an element of the crime. It is in the lowering of

Respondent’s burden of proof that Mr. Williams was prejudiced, and that error warrants

granting him a new trial.

                  Application of the Dorsey Standard to the Present Case

       Jury instructions are meant to “direct the jury’s attention to the legal principles that

apply to the facts of the case.” General v. State, 367 Md. 475, 485, 789 A.2d 102, 108

(2002). “Accurate jury instructions are also essential for safeguarding a defendant’s right

to a fair trial. The court’s instructions should fairly and adequately protect an accused’s

rights by covering the controlling issues of the case.” Robertson v. State, 112 Md. App.

366, 385, 685 A.2d 805, 815 (1996). In the present case, the jury was not properly

instructed on the charge of first-degree child abuse.



                                              19
      Consistent with the Dorsey standard, unless we determine beyond a reasonable

doubt that the error in no way influenced the verdict, the error cannot be deemed harmless

and a reversal is mandated.8 276 Md. at 659, 350 A.2d at 678. We first point out that the

only crime for which Mr. Williams was charged was first-degree child abuse. As such, it

was the only crime on which the jury received instruction. Respondent argues that this

case turns on Mr. Williams’s trial strategy—that he did not contest the extent of I.W.’s

injuries. The record, however, suggests otherwise. The exact nature and extent of I.W.’s

injuries were contested at trial during the direct examination of Dr. Martin by Respondent.

During Dr. Martin’s direct examination, the following exchanges occurred:

      [RESPONDENT]: So can you give us an idea – given what happened to
      [I.W.], he was diagnosed with compartment syndrome? You have to answer
      verbally.
      [DR. MARTIN]: Yes. He had compartment syndrome for sure.
      [RESPONDENT]: Okay. Can you tell us what some of the long-term effects
      that you’ve seen in compartment syndrome? What happens long term when
      someone has compartment syndrome in three compartments of the forearms?
      [DR. MARTIN]: I mean, the outcome of a compartment syndrome depends
      on what the function of the muscles are. So you can open a compartment


8
  The question presented on certiorari was:
       Does a circuit court abuse its discretion in denying a motion for new trial
       where the court gave a pattern jury instruction and, after the jury renders its
       verdict, the court, prosecution, and defense all acknowledge that the
       instruction erroneously omitted an element of the offense for which the
       defendant was convicted?
In contrast, the Dissenting Opinion presents the issue as “. . . whether there is any
reasonable doubt that the jury still would have found Williams guilty if the Circuit Court
had correctly defined ‘severe physical injury.’” This reframing misstates the issue which,
pursuant to Merritt, is whether we can, upon independent review of the record, declare
beyond a reasonable doubt that the error in no way influenced the verdict. In the instant
case, we are unable to declare that the error was harmless.
                                            20
       syndrome, and the person can have completely normal function if it’s
       released in time and all that.
       The consequences of compartment syndrome where there’s damage to the
       muscles is usually the muscles get contracted and you’re left with a rigid
       extremity that doesn’t work because the muscles no longer function
       normally. The question is if the nerve was impacted as well. You could have
       sensory loss as well.
Following this exchange, Mr. Williams’s counsel objected as to the foundation of Dr.

Martin’s testimony. The trial judge sustained the objection and Respondent continued on

with its direct examination:

       [RESPONDENT]: So let’s look at it this way. Based on your review of the
       records, have you developed an opinion about the functioning of [I.W.]’s
       hands today?
       [DR. MARTIN]: His function is nowhere near normal.
       [RESPONDENT]: Okay. Given the fact that his surgery to relieve the
       pressure associated with compartment syndrome was in December of 2015
       and today his function is nowhere near normal, what is his long-term
       prognosis in your medical opinion?
       [DR. MARTIN]: I don’t think he’s going to make any miraculous recoveries
       from where he is now. I think that most people – like I said if you get to
       compartment syndrome early, most people have normal function and you’ll
       see that pretty quickly after their soft tissue wounds heal. So if somebody
       almost a year later has contracture[, he/she] is going to make very little I
       think progress from here on out most likely.

                                   *      *        *    *

       I mean if they’re working on trying to get a few degrees of motion here and
       there in his wrist, the chance of ever having a normal function of his arms is
       highly unlikely.

Again, following this exchange, Mr. Williams’s attorney objected to the foundation of Dr.

Martin’s testimony. The objection was again sustained. Later, on cross-examination, Mr.




                                              21
Williams’s counsel questioned Dr. Martin on the possibility of permanency of I.W.’s

injuries:

       [WILLIAMS’S COUNSEL]: Are you ruling out the possibility of normalcy?
       [DR. MARTIN]: I’d probably say yes.
       [WILLIAMS’S COUNSEL]: What do you mean you’d probably say yes?

       [DR. MARTIN]: Well, I mean people always hang on to hope, but I don’t
       think he’s going to have normal function if he doesn’t one year after his
       injury.

       [WILLIAMS’S COUNSEL]: It is true, though, is it not that early
       intervention, early medical care or treatment of compartment syndrome can
       lead to – a prompt diagnoses and treatment can lead to a recovery, correct?

       [DR. MARTIN]: Correct.

       [WILLIAMS’S COUNSEL]: Is it similarly true with Volkmann’s
       Contracture that prompt treatment and diagnosis such as we had here can
       lead to a recovery?

       [DR. MARTIN]: Well, Volkmann’s Contracture, once you have that, it’s
       hard – you can’t recover from it because it’s a consequence of muscle that
       dies related to compartment syndrome.           So basically, Volkmann’s
       Contracture is a complication of compartment syndrome.

       [WILLIAMS’S COUNSEL]: But the symptoms of it, you’re saying they’re
       incurable?

       [DR. MARTIN]: In the sense that you can’t create normal function out of it,
       yes. There are things that you can do to try to maximize someone’s function
       that has Volkmann’s Contracture, but to restore normal function is pretty
       much impossible to do.

The above testimony indicates that early intervention can lead to recovery from

compartment syndrome, that normalcy is possible for I.W. but not likely, and that things

can be done to maximize someone’s function who has Volkmann’s Contracture. This

testimony indicates that the exact nature and extent of I.W.’s injuries were up for debate

                                           22
by the jury.9 The severity of the injuries was not only objected to on direct examination

but also contested on cross-examination.           Respondent argues that questioning the

foundation of an expert’s testimony does not amount to contesting the substance of the

expert’s testimony. We disagree. Because the extent of I.W.’s injuries was a contested

element, as the finder of fact, the jury would have had to resolve the issue upon

deliberation.

       According to the jury instruction that was given, it was unclear if “permanent or

protracted serious” applied to both disfigurement and loss or impairment of the function of

an organ of the body. The lack of clarity in the instruction clearly prejudiced Mr. Williams

and lowered Respondent’s burden to establish Mr. Williams’s guilt. The prejudice to Mr.

Williams was that Respondent pursued only the charge of first-degree child abuse as

opposed to the charges of first and second-degree child abuse.10 Upon our review, we


9
  During deliberations the trial court received a note from the jury. The jury requested a
transcript of Dr. Martin’s in-court testimony. In response, the trial judge, without obtaining
the specifics of their inquiry, directed the jurors to rely upon their collective memory of the
doctor’s testimony. This is significant because Dr. Martin’s testimony was offered to prove
the element that was erroneously instructed on, the “severe physical injury” element of
first-degree child abuse. Accordingly, we will never know the precise impact of the
erroneous jury instruction on Dr. Martin’s testimony or the ultimate effect on the verdict.
Pursuant to the erroneous jury instruction, the jury could have concluded that the loss or
impairment of I.W. was not “permanent or protracted serious” and still have found Mr.
Williams guilty of first-degree child abuse. In order to be properly convicted of first-degree
child abuse, any loss or impairment must be “permanent or protracted serious.” Because
we are not privy to the specific deliberation of the jury, we cannot say beyond a reasonable
doubt that the erroneous instruction had no impact on the jury’s verdict.
10
   We note that a second-degree child abuse instruction was not requested by either
Respondent or Mr. Williams. Had a second-degree child abuse instruction been requested
and given, and the jury returned a verdict for second-degree child abuse, the error in the
first-degree child abuse instruction would have been harmless. The “permanent or
(continued . . .)
                                              23
cannot say that Mr. Williams was not harmed by this error beyond a reasonable doubt. As

such, the error cannot be deemed harmless and we reverse the judgments of the Court of

Special Appeals and the Circuit Court for Montgomery County.

                                     CONCLUSION

       The trial court erred in denying Mr. Williams’s motion for new trial. The error of

supplying the jury with an instruction that was an incorrect statement of the law was not

harmless, particularly given that Respondent presented the jury with only the charge of

first-degree child abuse. We cannot say that the error in the jury instruction in no way

influenced the verdict. Therefore, we reverse the judgment of the Court of Special Appeals

and direct the remand of the matter to the Circuit Court for a new trial.

                                             JUDGMENT OF THE COURT OF
                                             SPECIAL APPEALS REVERSED. CASE
                                             REMANDED TO THAT COURT WITH
                                             DIRECTIONS TO REMAND THE CASE
                                             TO THE CIRCUIT COURT FOR
                                             MONTGOMERY COUNTY FOR        A
                                             NEW TRIAL. COSTS IN THIS COURT
                                             AND THE COURT OF SPECIAL
                                             APPEALS    TO   BE   PAID   BY
                                             MONTGOMERY COUNTY.




(. . . continued)
protracted serious” language is not included in the instruction for second-degree child
abuse. The trial judge found it significant that the defense did not seek a second-degree
child abuse instruction. Likewise, we note that Respondent also did not seek an instruction
on second-degree child abuse.
                                             24
Circuit Court for Montgomery County
Case No. 128680C

Argued: October 3, 2018
                                              IN THE COURT OF APPEALS

                                                     OF MARYLAND

                                                           No. 13

                                                September Term, 2018
                                      ______________________________________

                                                   CRAIG WILLIAMS

                                                             v.

                                              STATE OF MARYLAND
                                      ______________________________________

                                                    Barbera, C.J.
                                                    Greene,
                                                    *Adkins,
                                                    McDonald,
                                                    Watts,
                                                    Hotten,
                                                    Getty,

                                                      JJ.
                                      ______________________________________

                                       Dissenting Opinion by Watts, J., which Getty,
                                                         J., joins.
                                      ______________________________________

                                                    Filed: January 18, 2019

                                      *Adkins, 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 MD. Constitution, Article IV,
                                      Section 3A, she also participated in the decision
                                      and adoption of this opinion.
       Respectfully, I dissent. I disagree with the Majority as to both the standard of review

and the merits.       I would hold that this Court should review the Circuit Court for

Montgomery County’s denial of the motion for a new trial for abuse of discretion, as

opposed to reviewing it for harmless error. Regardless of the standard of review, I would

affirm the Court of Special Appeals’s judgment. In other words, even assuming for

argument’s sake that the standard of review is harmless error, I would determine that the

record establishes, beyond a reasonable doubt, that the incorrect jury instruction did not

affect the verdict.

       The Majority correctly observes that an appellate court reviews for harmless error a

trial court’s denial of a motion for a new trial where “an alleged error occurred during trial

that was not discovered during trial, the losing party was without fault for not discovering

the error during the trial, and the error is raised in writing.” Maj. Slip Op. at 12. In my

view, although fault for an erroneous jury instruction will not always be placed on a

particular party, the Majority is incorrect in reasoning that Craig Williams, Petitioner, was

without fault in not discovering the error in the jury instruction at trial. See id. at 11.

       The error in the jury instruction was patent, in that the jury instruction failed to

identify all of the elements of first-degree child physical abuse. Specifically, the jury

instruction—which defined “severe physical injury” as “physical injury that (a) causes

permanent or protracted serious disfigurement or (b) causes loss or impairment of a

member or organ of the body or its ability to function properly”—did not accurately reflect

Md. Code Ann., Crim. Law (2002, 2012 Repl. Vol.) (“CR”) § 3-601(a)(5)(iii)2, which

defines “severe physical injury,” in pertinent part, as “physical injury that . . . causes
permanent or protracted serious: A. disfigurement; B. loss of the function of any bodily

member or organ; or C. impairment of the function of any bodily member or organ.” In

other words, the jury instruction plainly failed to convey that, under CR § 3-601(a)(5)(iii)2,

like disfigurement, loss or impairment of a member or organ of the body or its ability to

function properly must be serious and either permanent or protracted. At the time of trial,

Williams’s counsel was well-aware of CR § 3-601(a)(5)(iii)2’s definition of “severe

physical injury.” Indeed, before jury selection, Williams’s counsel expressly cited CR §

3-601(a)(5)(iii)2 while contending that it would be improper for Benjamin Martin, M.D.,

a medical expert witness for the State, to testify that I.W. suffered permanent or protracted

serious disfigurement or impairment of the function of any bodily member or organ, as,

according to Williams’s counsel, the words “protracted,” “severe,” and “functioning” are

legal terms, not medical terms.

       Williams’s counsel cannot be absolved of fault for failing to object to the jury

instruction just because it was a pattern jury instruction. The record demonstrates that

Williams’s counsel was well-aware of the elements of first-degree child physical abuse,

and would have been aware that the jury instruction did not properly set forth the elements.

Maryland Rule 4-325(e) makes clear the need for a defendant’s counsel to promptly object

to an alleged error in a jury instruction, stating in pertinent part: “No party may assign as

error the giving or the failure to give an instruction unless the party objects on the record

promptly after the court instructs the jury, stating distinctly the matter to which the

party objects and the grounds of the objection.” (Emphasis added). Maryland Rule 4-

325(e) is devoid of any exception that alleviates the responsibility of a defendant’s counsel


                                            -2-
to object where a trial court employs a pattern jury instruction.

       This Court’s holding in State v. Brady, 393 Md. 502, 507-08, 903 A.2d 870, 873

(2006) does not support the Majority’s determination that Williams’s counsel was without

fault in not discovering the error in the jury instruction at trial. See Maj. Slip Op. at 11.

The Majority quotes part of the following dicta in Brady, 393 Md. at 507-08, 903 A.2d at

873:

       [W]hen the [jury] instructions are lacking in some vital detail or convey some
       prejudicial or confusing message, however inadvertently, the ability of the
       jury to discharge its duty of returning a true verdict based on the evidence is
       impaired. The responsibility for avoiding such circumstance rests with the
       trial judge[,] who must advise the jury on every matter stemming from the
       evidence [that] is vital to its determination of the issues before them.

(Quoting State v. Hutchinson, 287 Md. 198, 205, 411 A.2d 1035, 1039 (1980)). Maj. Slip

Op. at 11. In each of Brady, 393 Md. at 509, 903 A.2d at 874, and Hutchinson, 287 Md.

at 202, 411 A.2d at 1037, the issue was whether a trial court committed plain error in failing

to correctly instruct the jury. Thus, Brady and Hutchinson are not dispositive where, as

here, the question is not whether a trial court committed plain error in failing to correctly

instruct the jury; instead, the question is whether a defendant’s counsel was without fault

in failing to discover an error in a jury instruction at trial.

       Immediately after quoting part of the above dicta in Brady, 393 Md. at 507-08, 903

A.2d at 873, the Majority states: “As such, in the present matter, we do not ascribe any

fault to . . . Williams[.]” Maj. Slip Op. at 11. The Majority implies that, no matter the

circumstances, a defendant’s counsel is always without fault where he or she fails to

discover an error in a jury instruction at trial, as the responsibility for discovering such



                                               -3-
errors always rests with the trial court. Such an outcome would be at odds with Maryland

Rule 4-325(e)’s recognition that a defendant’s counsel bears responsibility for discovering

errors in jury instructions and bringing them to the trial court’s attention.

       Given that Williams’s counsel was not without fault in failing to discover the error

in the jury instruction at trial, I would review the circuit court’s denial of the motion for a

new trial for abuse of discretion. As this Court explained in Merritt v. State, 367 Md. 17,

30-31, 785 A.2d 756, 764 (2001), an appellate court reviews a trial court’s denial of a

motion for a new trial for abuse of discretion, as opposed to reviewing it for harmless error,

unless, among other things, “the losing party or that party’s counsel, without fault, does

not discover the alleged error during the trial[.]” (Citations omitted).

       That said, regardless of whether this Court reviews the circuit court’s denial of the

motion for a new trial for abuse of discretion or for harmless error, the result would be the

same—namely, that the circuit court’s decision should be affirmed.

       Given the terms of the erroneous jury instruction, and given that the jury found

Williams guilty of first-degree child physical abuse, the jury necessarily found that

Williams caused a physical injury that either: (1) caused permanent or protracted serious

disfigurement, or (2) caused loss or impairment of a member or organ of the body or its

ability to function properly. The issue that is before this Court is whether there is any

reasonable doubt that the jury still would have found Williams guilty if the circuit court

had correctly defined “severe physical injury,” in pertinent part, as “physical injury that . .

. causes permanent or protracted serious . . . loss of the function of any bodily member or

organ[] or [] impairment of the function of any bodily member or organ.” CR § 3-


                                             -4-
601(a)(5)(iii)2B, C. In other words, the question is: If the circuit court had correctly

defined “severe physical injury,” would the jury have found that any loss or impairment of

a member or organ of the body or its ability to function properly was serious and either

permanent or protracted?

       From my perspective, an examination of the record demonstrates that, if the proper

instruction had been given, the verdict would have been the same.            The evidence

demonstrated that, in a misguided attempt to prevent his son I.W. from acting out at night,

on multiple occasions, Williams wrapped him with plastic wrap, bound his arms and legs

with zip ties, left him that way overnight, and freed him in the morning. On the last such

occasion, Williams wrapped I.W. with plastic wrap so tightly that both of his arms swelled.

Williams was eventually taken to Children’s National Medical Center, where Dr. Martin

was the orthopedist1 on call.

       Notably, Dr. Martin’s testimony unequivocally established that the loss or

impairment of a member or organ of I.W.’s body or its ability to function properly was

both serious and permanent or protracted. Dr. Martin testified that he had diagnosed I.W.

with compartment syndrome, which occurs when a muscle swells so much that it collapses

in on itself, depriving the muscle and nerves of blood flow. Dr. Martin and another doctor

simultaneously performed surgery on both of I.W.’s arms. After the surgery on I.W.’s

arms, a plastic surgeon, Dr. Albert Oh, performed skin grafts. Dr. Oh diagnosed I.W. with


       1
        An orthopedist is “a doctor who specializes in the branch of medicine concerned
with the correction or prevention of deformities, disorders, or injuries of the skeleton and
associated structures[.]” Orthopedist, Merriam-Webster, https://www.merriam-webster.
com/dictionary/orthopedist [https://perma.cc/BS25-2H5J].

                                           -5-
Volkmann’s Contracture, which, according to Dr. Martin, occurs where compartment

syndrome leaves muscles so rigid that they “no longer function normally.”

       Critically, Dr. Martin testified that I.W.’s hands’ functioning was “nowhere near

normal[,]” that his prognosis was “poor[,]” and that “the chance of ever having normal

function of his arms is highly unlikely.” During his cross-examination, Dr. Martin did not

retreat from this conclusion. In response to Williams’s counsel’s questions, Dr. Martin

acknowledged that a prompt diagnosis of compartment syndrome and treatment could lead

to a recovery, but testified that Volkmann’s Contracture cannot be recovered from because

it is a complication of compartment syndrome. Williams’s counsel then asked whether the

symptoms of Volkmann’s Contracture were “incurable[.]”            Significantly, Dr. Martin

responded: “In the sense that you can’t create normal function out of it, yes. There are

things that you can do to try to maximize someone’s function [who] has Volkmann’s

Contracture, but to restore normal function is pretty much impossible to do.”

(Emphasis added).

       In light of Dr. Martin’s unequivocal testimony about I.W.’s symptoms and

prognosis, it is clear that the evidence demonstrated, beyond a reasonable doubt, that I.W.’s

injuries were serious and either permanent or protracted.

       Williams raises a red herring by pointing out that Dr. Martin did not expressly

characterize I.W.’s injuries as “serious” or “permanent or protracted.” Dr. Martin was not

required to use the terms “serious” or “permanent or protracted” to provide ample evidence

that I.W.’s injuries were serious and permanent or protracted. Dr. Martin’s testimony that

I.W.’s hands’ functioning was “nowhere near normal” unequivocally established that his


                                            -6-
injuries were serious. And Dr. Martin’s testimony that “restor[ing] normal function is

pretty much impossible to do” clearly showed that I.W.’s injuries were permanent or

protracted.

       Tellingly, during Williams’s opening statement and closing argument, his counsel

did not contest the proposition that I.W.’s injuries were serious and permanent or

protracted.2 Instead, Williams’s counsel contended that Dr. Martin did not testify that


       2
         During William’s closing argument, his counsel addressed Dr. Martin, in pertinent
part, as follows:

              Dr. Martin is important. Dr. Martin is in the field of pediatric
      medicine, but I don’t get the sense that he’s got an abuse training background
      or something like that. So he seems like a perfectly personable surgeon with
      experience. But he gives you an opinion about [I.W.]’s current situation.
      First[,] he never says in an expert opinion way that he thought what little he
      knew about the events of the night -- remember, he said yes, somebody said
      something about he was wrapped. He never connected whatever it was he
      knew about the wrapping with the injuries [that] he was observing. So he
      didn’t give an opinion based on a reasonable degree of medical probability
      or based on anything else. He didn’t even address it.
              But what he does do is he said yes, I did this operation. I did this. I
      saw [I.W.] maybe -- I don’t remember, maybe even as late as December 3lst.
      Have you ever seen [I.W.] since? No. Well, what are you talking about then?
      Well, I read a note of [I.W.’s] last visit. But he was in Children’s [National
      Medical Center,] and Dr. Martin didn’t see [I.W.] And whoever did see
      [I.W.] didn’t come in here and talk about it. How hard is it? It’s proof
      beyond a reasonable doubt, a critical element of the case. How hard is it to
      have somebody come in who has just seen [I.W.] and tell you what the
      situation is instead of a good guy who’s saying, well, I haven’t seen [I.W.], I
      read a note from a plastic surgeon -- not an orthopedist -- and so I think it’s
      pretty ugly. [I.W.]’s not going to regain his use.
              How about examining [I.W.]? How about sharing some truth with us
      about it? Are they hiding something? I don’t know. But why aren’t they
      just telling us? I don’t see the doctors at Children’s [National Medical
      Center] having any reluctance to come out here and testify in this case. But
      not so much -- to help you, I’ll ask you this -- if Dr. Martin was advising you
(Continued...)

                                           -7-
Williams’s wrapping of I.W. with plastic wrap caused I.W.’s injuries, and that Dr. Martin

had not seen I.W. recently enough as of the time of trial for his opinion about I.W.’s

“current situation” to have much weight. Williams’s counsel’s contentions in no way

indicated that, contrary to Dr. Martin’s opinion, I.W. would lack full function of his hands

for the rest of his life. During closing argument, Williams’s counsel indicated that he did

not dispute the extent of I.W.’s injuries, stating: “[A]gain, we’re not challenging that the

injuries were not very bad. You’d be foolish to do that. They were. They were awful.

But they were unimagined and they were unintended.” (Emphasis added).

       In sum, at no point during Williams’s opening statement or closing argument did

his counsel contest that I.W.’s injuries were serious and permanent or protracted. To the

contrary, during Williams’s opening statement, his counsel stated that he did not “dispute

. . . that the injuries have turned out to be what they are.” And, during Williams’s closing

argument, his counsel acknowledged that I.W.’s injuries were “significant, regrettable,


       about some serious surgery that you were considering, and the best he could
       say to you was yeah, I remember I saw you about a year ago, and I read a
       note, and I’m not saying anything about the surgery that’s related to what the
       earlier condition is, but here’s what I think. I think you should have the
       surgery. Would you do it? Would that be enough for you? Do you think
       you might get a second opinion? Would you might say, doc, could you be a
       little more specific? That’s what we’re demanding, is that you don’t go back
       there and go, what the heck happened? Does anybody know what happened
       between then and then or what does that -- remember, [Dr. Martin]’s an
       expert because he’s a medical doctor. He’s an expert because he’s got
       training and studying in this specific field, so he can give an opinion. But
       just like the doctor who treats you, if you don’t like what you’re hearing, you
       don’t have to listen to that.
               But in a case like this, with so much on the line, with the State bent to
       punish [] Williams, we want you to look at it, upside down, inside out, in
       every line.

                                             -8-
unimaginable[,]” “very bad[, and] awful.”

       The Majority is incorrect in determining that Williams’s counsel “contested” “the

extent of I.W.’s injuries[.]” Id. at 22. The Majority quotes Dr. Martin’s cross-examination,

see id. at 21, during which Williams’s counsel asked Dr. Martin whether he was “ruling

out the possibility of normalcy”; whether “a prompt diagnosis and treatment can lead to a

recovery” from compartment syndrome; whether “prompt treatment and diagnosis such as

we had here can lead to a recovery” from Volkmann’s Contracture; and whether “the

symptoms of” Volkmann’s Contracture are “incurable[.]” I disagree with the Majority’s

assessment that Dr. Martin’s testimony in response to Williams’s counsel’s questions

“indicates that the exact nature and extent of I.W.’s injuries were up for debate by the jury.”

Maj. Slip Op. at 22-23. To properly find Williams guilty, the jury needed to find that I.W.’s

injuries were serious and permanent or protracted. While cross-examining Dr. Martin,

Williams’s counsel challenged only the idea that I.W.’s injuries would be permanent—i.e.,

“incurable” or incapable of “recovery”; Williams’s counsel in no way contested the

evidence that I.W.’s injuries were both serious and protracted.3 And, as noted above,

during Williams’s opening statement and closing argument, his counsel made clear that he

did not contest the extent of I.W.’s “significant, regrettable, unimaginable[,]” “very bad[,

and] awful” injuries.



       3
        Curiously, the Majority concedes: “[W]e will never know the precise impact of the
erroneous jury instruction on Dr. Martin’s testimony or the ultimate effect on the verdict.”
Maj. Slip Op. at 23 n.9. The jury instruction given after Dr. Martin’s testimony obviously
had no impact on the witness’s opinion; and, with this statement, the Majority appears to
acknowledge that the instruction may have had no impact on the verdict.

                                             -9-
       Contrary to the Majority’s reasoning, it is appropriate to consider the circumstance

that Williams’s counsel did not contest that I.W.’s injuries were serious and permanent or

protracted. See Maj. Slip Op. at 19. The Majority notes that “the State is not relieved of

its burden of proof because of a perceived failure to contest an element of the crime.” Id.

Although that statement is accurate, it has no application here. The issue is not whether

the State was relieved of its burden of proof; the issue is whether there is any reasonable

doubt that the jury still would have found Williams guilty if the circuit court had correctly

defined “severe physical injury.”4 As discussed above, Dr. Martin’s testimony eliminates

any such reasonable doubt.

       In conclusion, the evidence demonstrates, beyond a reasonable doubt, that I.W.’s

injuries were serious and either permanent or protracted, and that the giving of the incorrect

pattern jury instruction did not affect the verdict.

       For the above reasons, respectfully, I dissent.

       Judge Getty has authorized me to state that he joins in this opinion.




       4
        The Majority frames the question in a similar manner, stating that the issue is
“whether we can, upon independent review of the record, declare beyond a reasonable
doubt that the error in no way influenced the verdict.” Maj. Slip Op. at 20 n.8. Contrary
to the Majority’s determination, in this case, the error was harmless beyond a reasonable
and did not influence the jury’s verdict.

                                             - 10 -
