Circuit Court for Montgomery County                 REPORTED
Case No. 128270
                                        IN THE COURT OF SPECIAL APPEALS

                                                   OF MARYLAND

                                                       No. 1900

                                                September Term, 2016

                                      ______________________________________


                                                 IBRAHIM BROWN

                                                          v.

                                              STATE OF MARYLAND

                                      ______________________________________


                                           Nazarian,
                                           Friedman,
                                           Harrell, Glenn T., Jr.
                                             (Senior Judge, Specially Assigned),

                                                          JJ.

                                      ______________________________________

                                               Opinion by Nazarian, J.
                                      ______________________________________

                                           Filed: September 27, 2017
          While breaking into a house in Silver Spring, Ibrahim Brown injured his hand and

left a smudge of blood on the inside of a basement window. The police investigating the

case sent a sample of the blood for comparison against the FBI’s DNA database. Mr.

Brown’s blood sample matched two records of Mr. Brown’s DNA from samples collected

in Washington, D.C. The D.C. samples were collected legally under District law, but their

collection would not have complied with the Maryland DNA Collection Act (the “Act”) if

collected here.

          Mr. Brown was tried in a bench trial in the Circuit Court for Montgomery County

and convicted of first-degree burglary and theft. He argues on appeal that DNA samples

that would be illegal if collected in Maryland should be excluded under the Act, even if

they were collected legally in another jurisdiction. He contends as well that the evidence

was insufficient to support his convictions. We disagree with both sets of arguments and

affirm.

                                    I. BACKGROUND

          Chris Holleyman returned to his home in Silver Spring on August 16, 2014 to

discover that his home had been burgled. He noticed that his basement window had been

opened and that there was a smudge of blood on the inside of the window. He testified at

trial that approximately $12,000 of belongings had been stolen, including a bicycle he kept

in the basement. He testified as well that the deadbolt on the exterior door of the basement,

which he always left in the locked position, was unlocked when he returned home that

evening.
       Two police officers came to the house in response to Mr. Holleyman’s 911 call.

They took a sample of the blood smudged on the inside of the opened basement window.

They cross-checked the sample against the FBI’s DNA database, known as “CODIS” (the

Combined DNA Index System). CODIS came back with two matches, both of which

pointed to Mr. Brown. Both of the CODIS samples the window smudge matched had been

collected in the District of Columbia: one for a prior conviction for misdemeanor sexual

assault, the other from a separate investigation of first-degree sexual assault for which no

charges were filed. Based on the match between the window smudge and the CODIS hits,

the State obtained a warrant to take a buccal swab from Mr. Brown. The DNA from the

swab matched the blood smudged on the window.

       On October 22, 2015, the State indicted Mr. Brown on charges of first-degree

burglary and theft between $1,000 and $10,000. On April 20, 2016, Mr. Brown filed a

motion in limine to exclude all DNA evidence at trial. On May 13, 2016, the circuit court

heard Mr. Brown’s motion. He argued that because neither of the biologic samples

underlying the CODIS DNA matches would have been eligible for collection and use under

the Act had the alleged crimes occurred in Maryland, they could not form probable cause

to take the buccal swab. The circuit court denied Mr. Brown’s motion on May 19, 2016.

       The circuit court conducted a bench trial on May 31 and June 1, 2016. Mr. Brown

testified on his own behalf that he went to the Silver Spring house with an acquaintance

after agreeing to “check [the house] out” in exchange for marijuana. He testified that he

opened the basement window, got his fingers caught between the inside and outside

windows (which caused him to bleed onto the window), but managed to pry his hand free

                                                2
and close the window. He denied entering the house or stealing property. He claimed to

have implored his partner to leave with him instead of entering the house, and then left.

       The circuit court announced its findings and verdict from the bench on June 9, 2016.

The court found the prosecution’s witnesses (the two officers who responded to

Holleyman’s initial call, one of whom had specialized forensic training) a police fingerprint

examiner, the detective assigned to the case, and two analysts from the DNA lab that

analyzed Mr. Brown’s DNA swabs) to be “very credible” and Mr. Brown to be

“substantially less credible.” The court stated that it did not believe Mr. Brown’s testimony

that he did not enter the home and was only there to “check out” the home. The court also

found that Mr. Brown had entered the house with an intent to steal:

              [T]he defendant was inside the home in part at least for the
              upper part of his body to the point where he could have grabbed
              the . . . wall inside. I am persuaded beyond a reasonable doubt
              that by having made the arrangement that he did with [his
              accomplice], by having looked inside the home, by having seen
              a bicycle and because of all of the evidence generally that h[is]
              inten[t], was in fact to ste[a]l.

The trial court’s findings included two comments about Mr. Brown seeing a bicycle in the

house from outside of the breached window, and one comment about Mr. Brown testifying

about seeing the bicycle from outside of the house. But although Mr. Brown did say at one

point that he “took a couple of looks [into the window] to see if anybody was in there and

it was real dark,” at no point during the trial did he actually testify to having seen a bicycle.

       Before announcing the verdict, the court expressed doubt that Mr. Brown was the

person who actually removed the stolen items from the house. But the court explained that



                                                   3
even if he didn’t physically remove the items from the house, he still was liable as an

accomplice:

                [T]he defense claimed that the defendant closed the window. .
                ..

                        We went back and listened very carefully to the
                testimony. That was not the case from what I could tell. My
                understanding is what happened outside on the street is what
                I’ve already said. That [Mr. Brown] told [his accomplice] that
                the window was open.

                         . . . I don’t think the defendant did enough to eliminate
                himself from the criminal venture to have avoided accomplice
                liability.

                       . . . And so, for that reason that will be, that will be my
                finding.

The circuit court found Mr. Brown guilty of first-degree burglary and theft. Mr. Brown

filed a timely appeal. We include additional details in the discussion as necessary.

                                       II. DISCUSSION

         Mr. Brown raises two groups of arguments on appeal.1 First, he claims that the

circuit court erred by denying his motion to exclude DNA evidence. He reprises the


1
    Mr. Brown phrased the Questions Presented in his brief as follows:

                       1.     Did the circuit court err in denying Mr. Brown’s
                motion in limine to exclude DNA evidence where probable
                cause to collect the evidence was based on DNA profiles from
                the District of Columbia that could not have been lawfully
                collected or uploaded to a DNA database by the State of
                Maryland?

                        2.    Did the circuit court err in convicting Mr. Brown
                of first degree burglary and theft after the circuit court made
                erroneous factual findings regarding Mr. Brown’s testimony,
                                                    4
argument he made in the circuit court, i.e., that because the D.C. DNA samples on CODIS

would not have been collectible under the Act, they could not form the basis of probable

cause for the warrant compelling his matching sample in this case. Second, Mr. Brown

argues that the circuit court erred by grounding his conviction on the erroneous findings

that he saw a bicycle in the house and that he did not close the basement window. Without

those findings, he contends, the evidence against him was insufficient to support his

convictions.

       The circuit court denied Mr. Brown’s motion in limine to exclude the DNA evidence

based on its interpretation of the Act. Where “both parties have presented legal arguments

based on their interpretation of statutory and case law[,] [w]e consider those arguments de

novo; in other words, we review the questions as a matter of law.” Dickerson v. Longoria,

414 Md. 419, 433 (2010) (citation omitted). When reviewing a non-jury trial for the

sufficiency of the evidence,

               the judgment of the [c]ircuit [c]ourt will not be set aside on the
               evidence unless clearly erroneous and due regard will be given
               to the opportunity of the lower court to judge the credibility of
               the witnesses. . . . [T]he findings of fact of the trial judge must
               be accepted unless there was no legally sufficient evidence or
               proper inferences therefrom, from which the court could find
               the accused guilty beyond a reasonable doubt.

Dixon v. State, 302 Md. 447, 450–51 (1985) (internal citations omitted). When reviewing

bench trials, we review findings of fact under the “clearly erroneous” standard, meaning




               incorrectly finding that (a) he testified he looked at a “bicycle”
               inside the victim’s house and (b) he did not testify he closed
               the window to the house?
                                                   5
that “[a] finding of a trial court is not clearly erroneous if there is competent or material

evidence in the record to support the court’s conclusion.” Lemley v. Lemley, 109 Md. App.

620, 628 (1996).

       A.     The Maryland DNA Collection Act Did Not Preclude Legally
              Collected DNA Samples From Serving As Probable Cause.

       Mr. Brown argues first that the circuit court erred by failing to suppress the DNA

evidence that ultimately was admitted at trial. He contends that the Act prohibits admission

of DNA evidence when the samples giving rise to probable cause for the matching sample

could not have been collected legally in Maryland, even if they were collected legally under

the laws of that jurisdiction. This is a question of first impression. We disagree with Mr.

Brown that the statute operates as he contends.

       Mr. Brown is right that neither of the samples giving rise to the CODIS hits linking

him to the window smudge could have been collected and submitted to CODIS had the

crime or alleged activities been committed in Maryland.2 Section 2-504(a)(2) of the Public

Safety Article (“PS”) of the Maryland Code (2003, 2011 Repl. Vol., 2016 Supp.) authorizes

law enforcement to collect DNA samples from people convicted of felonies, burglary in

the fourth degree, and breaking and entering a motor vehicle. Section 2-504(a)(3)(i)

permits collection from people charged with certain crimes, including burglary and

attempted burglary:




2
 There is one nuance: Mr. Brown is correct if we assume that the underlying facts of his
misdemeanor sexual assault conviction in Washington D.C. would have resulted in a
misdemeanor, not a felony, conviction in Maryland.
                                                  6
              In accordance with regulations adopted under this subtitle, a
              DNA sample shall be collected from an individual who is
              charged with:

                     1. a crime of violence[3] or an attempt to commit a crime
              of violence; or
                     2. burglary or an attempt to commit burglary.

Mr. Brown’s D.C. misdemeanor sexual assault conviction does not fall into either of these

categories. Nor does the sample underlying the other CODIS hit, which was taken in

connection with a separate investigation for first-degree sexual assault that never led to

charges. Everyone agrees, though, that both samples were collected and submitted to

CODIS in compliance with District of Columbia law, and Mr. Brown does not challenge

the constitutionality of the D.C. DNA law.

       Mr. Brown argues, in essence, that DNA profiles on CODIS must be collected in a

manner consistent with the Act to qualify as probable cause to compel a new sample in

Maryland. If not, he says, the match should be excluded, even if the samples were collected

legally elsewhere and submitted properly to CODIS. Neither the text nor the legislative

history of the Act compels this result.

              1.     The plain language and statutory scheme of the Act do not
                     preclude reliance on CODIS hits from legal out-of-state
                     samples.

       The Act is silent on the treatment of out-of-state samples, so Mr. Brown analogizes

to the Maryland Electronic Surveillance Act (“MESA”), Md. Code (1974, 2013 Repl. Vol.)

§§ 10-401 to 10-414 of the Courts & Judicial Proceedings Article (“CJ”), which precludes


3
 PS § 2-501(e) defines “crime of violence” to have the meaning stated in § 14-101 of the
Criminal Law Article.
                                                7
Maryland courts from admitting most wiretapped communications that violate the

Maryland statute, even if they were obtained legally elsewhere. In Mustafa v. State, the

case on which Mr. Brown relies most heavily, the tape recording at issue was obtained

lawfully under District of Columbia law, but “would not have been lawful had it been made

[under MESA].” 323 Md. 65, 71–72 (1991). Ultimately, the Court of Appeals held that

the statute’s exclusionary provision barred admission of the tape recordings in Maryland

courts because they did not satisfy the two-party consent rule contained in MESA and that

governs recordings in Maryland. Id. at 75–76. The Court reasoned that “the provisions of

[MESA] constitute a declaration of the public policy of this State,” and that although

“Maryland may not ordinarily proscribe conduct occurring outside its boundaries,” it

“[q]uite plainly . . . may regulate the admissibility of evidence in its courts.” Id. at 74–75.

       This analogy doesn’t hold here, though, for two reasons. First, the language and

structure of MESA and the Act reveal differences in legislative intent. Unlike the Act,

MESA specifically ties the admissibility of recordings to compliance with Maryland law:

              Any investigative or law enforcement officer . . . who has
              lawfully received any information concerning a wire, oral or
              electronic communication or evidence lawfully derived
              therefrom, which would have been lawful for a law
              enforcement officer of this State . . . to receive, may disclose
              the contents of that communication or the derivative evidence
              while giving testimony . . . .

CJ § 10-407(f) (emphasis added).         The Court of Appeals has described MESA’s

exclusionary rule as “all-encompassing.” Mustafa, 323 Md. at 73–74 (“There is no

indication that the legislature intended to adopt anything but the ‘all-encompassing

exclusionary rule which it unequivocally fashioned in [CJ] § 10-405.’” (quoting Wood v.

                                                  8
State, 290 Md. 579, 584 (1981))).          And MESA “precludes the admission of a

communication intercepted, no matter where, under circumstances inconsistent with this

State’s substantive law.” Id. at 75.

       In contrast, the Act says nothing about the admissibility in Maryland courts of

evidence legally collected extraterritorially. The Act’s expungement provision is tailored

narrowly and requires the destruction or expungement of DNA samples or records in only

three specific instances: when a criminal action against the individual sampled does not

result in a conviction, when a conviction is vacated or reversed, or when the individual has

been pardoned. PS § 2-511(a). Indeed, the language of the expungement provision, which

addresses “DNA samples and records generated as part of a criminal investigation,” is

limited only to samples and records generated in Maryland. PS § 2-511. And because

samples and records can only qualify for expungement “from the State DNA data base,”

and extraterritorially-collected samples are never entered into Maryland’s database, there

is no statutory basis to prevent CODIS hits from establishing probable cause. PS § 2-

511(a).

       Second, Mr. Brown’s gloss on the Act would create serious practical problems. See

CashCall, Inc. v. Md. Comm’r of Fin. Regulation, 448 Md. 412, 431 (2016) (“In every

case, the statute must be given a reasonable interpretation, not one that is absurd, illogical

or incompatible with common sense.” (quoting Gardner v. State, 420 Md. 1, 8–9 (2011))).

When determining whether a recording, regardless of its geographic origin, complies with

MESA, a court in pre-trial hearing need only inquire about the factual circumstances of the

recording—who made the recording and whether the parties consented to being recorded.

                                                 9
But CODIS reveals little to no information about the source of the sample or the

circumstances under which it was taken. Reading the Act as Mr. Brown suggests would

require law enforcement and the courts to determine independently, among other things,

what crimes or charges underlay each sample and how that state’s criminal code maps onto

ours—whether, for example, their felonies would be felonies under Maryland law, whether

a particular burglary elsewhere would qualify as a fourth-degree burglary in Maryland, or

whether their crimes of violence are the same as ours. See PS § 2-504(a)(2)–(3) (listing

crimes that qualify charges or convictions for DNA collection). Such an interpretation as

urged by Mr. Brown would impair significantly the utility of CODIS and impose additional

burdens on law enforcement in Maryland.

              2.     The Act’s legislative history confirms our reading.


       Although we could affirm the circuit court’s ruling on our plain language reading

of the statute alone, we may still consult legislative history and surrounding circumstances

“as a confirmatory process,” State v. Rice, 447 Md. 594, 623 (2016) (internal quotation

marks and citation omitted). The legislative history of the Act confirms our conclusions.

The Act was passed on the heels of the federal DNA Identification Act of 1994, Pub. L.

No. 103-322, which formalized the FBI’s authority to establish CODIS and invited states

to participate. See State Police – Statewide DNA Database System and Repository:

Hearing on S.B. 298 & H.B. 410 Before the S. Judicial Proceedings Comm. and the H.

Judiciary Comm., 1994 Leg., 408th Sess. (Md. 1994) [hereinafter Legislative Hearing

Statement] (statement of W. Kevin Hughes, Governor’s Legislative Office, and Col. Larry


                                                10
Tolliver, Superintendent, Md. State Police). The legislative history reveals the Act as

having two related, but clearly separate, purposes. First, the Act was designed to establish

a state-wide DNA database and to formalize the process through which DNA evidence

would be collected and entered into it. The original House and Senate bills established the

initial set of crimes that would qualify a suspect or convict for DNA collection, the people

permitted to collect DNA evidence, the technical standards that each of the labs must meet,

the circumstances under which the DNA evidence should be used, when DNA evidence

should be expunged or destroyed, and the funding that would be necessary to ensure high-

volume operation. See, e.g., S. JUDICIAL PROCEEDINGS COMM., BILL ANALYSIS, H.B. 410,

408th Sess. (Md. 1994) [hereinafter BILL ANALYSIS].

       Second, and always discussed separately from the first, the Act was designed to

ensure that Maryland’s collected DNA evidence and DNA laboratories would meet the

federal, technical requirements for participation in CODIS. CODIS is mentioned in the

legislative history only for this purpose and in short, check-the-federally-required-box style

sentences. The Fiscal Note for HB 410 states that the bill requires the state police to “report

DNA data to [CODIS,] operated by the Federal Bureau of Investigation.” DEP’T OF FISCAL

SERVS., FISCAL NOTE, H.B. 410, 408th Sess., at 2 (Md. 1994). The Senate’s analysis of

the House Bill states that the contents of the DNA database will be “made available to . . .

agencies participating in the FBI’s CODIS system.” BILL ANALYSIS, at 1. The testimony

about the bill before the Senate Judicial Proceedings Committee and the House Judiciary

Committee on behalf of the Office of the Governor by the Superintendent of the Maryland

State Police and a member of the Governor’s Legislative Office reiterated that “[t]he

                                                 11
legislation ensures that Maryland will comply with and participate in the federal CODIS

network.” Legislative Hearing Statement, at 2.

       The legislative history confirms, therefore, the purposes we see in the language and

structure of the Act: the creation of a state DNA database, with procedures for DNA

evidence collection in Maryland, and Maryland’s participation in CODIS. Nothing in the

Act’s language or structure indicates that the Act was intended to regulate the admission

of extraterritorially-collected DNA evidence, and the legislative history demonstrates that

it wasn’t on the General Assembly’s mind at the time either. We affirm the circuit court’s

denial of Mr. Brown’s motion in limine to exclude DNA evidence.

       B.     The Circuit Court Did Not Err When It Inferred That Mr. Brown
              Saw A Bicycle From Outside Of The House, Nor Did It Err When
              It Declined To Give Credence To Mr. Brown’s Testimony.

       Mr. Brown contends second that the circuit court erred when it relied on testimony

he never gave about seeing a bicycle inside the house to convict him, and that it erred when

it declined to give weight to his exculpatory testimony. We disagree.

              1.     The circuit court did not commit clear error when it
                     inferred that Mr. Brown saw the bicycle.

       Mr. Brown argues that in finding that he had the intent to steal, the court relied on

the misimpression that he had testified about seeing a bicycle, and that without that

“finding,” the state failed to prove the intent element of the theft and burglary charges. He

points to three comments the circuit court judge made in explaining why it found him

guilty. First, the circuit court stated that Mr. Brown “testified that he looked inside the

basement through this window and saw a bicycle.” Second, the court stated that it was


                                                 12
“persuaded beyond a reasonable doubt that by having made the arrangement that he did

with [his acquaintance], by having looked inside the home, by having seen a bicycle and

because of all of the evidence generally that h[is] inten[t], was in fact to ste[a]l.” A short

while later, the court elaborated in a third comment that “I think his real intent and I infer

from the fact that he looked at the bicycle [and] was there in the middle of the night, I think

his real intent was to steal.”

       It’s true that Mr. Brown never said, in those words, that he saw a bicycle. But the

court actually said that Mr. Brown testified to seeing the bicycle once—the other two times,

the court inferred that Mr. Brown had seen it. Inferred findings based on circumstantial

evidence are subject to the same “clearly erroneous” standard of review as any other factual

finding. “A finding of a trial court is not clearly erroneous if there is competent or material

evidence in the record to support the court’s conclusion.” Lemley, 109 Md. App. at 628.

And here, the circuit court’s inference that Mr. Brown saw the bicycle is supported

sufficiently.

       There were two bicycles in the basement, both visible from the window Mr. Brown

forced open.     Mr. Brown testified to having spent time examining the windows to

determine if they could be used for entry into the house. He testified that while he was

examining the basement windows, he “took a couple of looks to see if anybody was in

there and it was real dark.” Mr. Holleyman, the homeowner, testified that there were two

bicycles in the only room in the basement, and unlike other items in the basement, he did

not testify that they were tucked away in some kind of less visible fashion. From this

collection of testimony, the court could have drawn a rational connection between Mr.

                                                 13
Brown’s admitted looks in the window and the taken bicycle that was in plain sight. We

see no clear error in that inference.

              2.      The circuit court was free to disbelieve Mr. Brown’s
                      testimony that he closed the window before committing the
                      burglary.

       Mr. Brown argues that the circuit court erred as well by “failing to recognize and

consider [his] testimony that he closed shut the window to the [r]esidence,” and that if it

had considered his testimony properly, it would have found that he repudiated the crime

and could not be guilty as an accomplice. Again, we discern no error.

       A finder of fact is “free to believe part of a witness’ testimony, disbelieve other parts

of a witness’ testimony, or to completely discount a witness’ testimony.” Smiley v. State,

138 Md. App. 709, 719 (2001) (citation omitted). In this case, the judge found that Mr.

Brown lacked credibility, and didn’t believe Mr. Brown’s story that he was at the house

only to “check it out” and not to commit the theft. After hearing all of the evidence and

taking eight days to deliberate, the court found that “the defendant was inside the home in

part at least for the upper part of his body to the point where he could have grabbed the . .

. wall inside.” And contrary to Mr. Brown’s contention, the court did not imply that Mr.

Brown left the window open—it implied only that Mr. Brown didn’t open the window,

immediately close it afterwards, change his mind about committing burglary, and thus

repudiate the act.




                                                  14
       There was more than enough evidence for a rational person to believe beyond a

reasonable doubt that Mr. Brown committed burglary and theft. The court did not err in

finding him guilty.

                                       JUDGMENT OF THE CIRCUIT COURT
                                       FOR    MONTGOMERY      COUNTY
                                       AFFIRMED.  APPELLANT TO PAY
                                       COSTS.




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