Kevin E. Jones v. State of Maryland, Case No. 14, September Term, 2014

CRIMINAL LAW – SECOND-DEGREE ASSAULT – INTENT-TO-FRIGHTEN –
Court of Appeals held that defendant can commit second-degree assault of intent-to-
frighten type against victim of whose presence in particular defendant does not know.
Circuit Court for Somerset County
Case No. 19-K-10-009451

Argued: October 6, 2014
                                          IN THE COURT OF APPEALS

                                               OF MARYLAND

                                                     No. 14

                                              September Term, 2014
                                    ______________________________________

                                               KEVIN E. JONES

                                                       v.

                                            STATE OF MARYLAND
                                    ______________________________________

                                              Barbera, C.J.
                                              Harrell
                                              Battaglia
                                              Greene
                                              Adkins
                                              McDonald
                                              Watts,

                                                    JJ.
                                    ______________________________________

                                               Opinion by Watts, J.
                                    ______________________________________

                                              Filed: November 19, 2014
       We decide whether a defendant can commit second-degree assault of the intent-to-

frighten type against a victim of whose presence in particular the defendant does not

know. We hold that a defendant can do so.

                                     BACKGROUND

       The State, Respondent, charged Kevin E. Jones (“Jones”), Petitioner, with various

criminal offenses, including second-degree assault of the intent-to-frighten type against

Christine Johnson (“Johnson”). In the Circuit Court for Somerset County (“the circuit

court”), a jury tried and convicted Jones.

       Because Jones contends that the evidence was insufficient to support a conviction,

we summarize the evidence that the State offered at trial.

       Byron Johnson (“Byron”) testified as follows. On the night of September 17,

2010, Byron and Jones were passengers in a car. Jones said that “he [had] got[ten] into

an altercation with two boys” at Wink Lane Apartments.           Byron heard a gun being

loaded. Out of the corner of his eye, Byron saw Jones holding a gun. Eventually, the car

stopped near Wink Lane Apartments. While Byron remained in the car, Jones exited the

car, walked to an apartment’s front door, and knocked on it. A woman answered the

door. Jones asked: “[W]here the two [n*****]s at[?]” Byron heard “yelling.” The

woman shut the door, and Byron heard three gunshots. Jones returned to the car and said

that “he was going to kill . . . the two boys [whom] he was trying to get.”

       Nikita Tindley (“Tindley”), Johnson’s daughter, testified as follows.     On the
morning of September 18, 2010,1 Tindley, Johnson, and others were in an apartment at

Wink Lane Apartments. Jones knocked on the apartment’s front door. Tindley opened

the door. Jones asked: “[W]here the [n*****]s at[?]” Jones reached toward his pants.

Tindley shut the door, saw Johnson approaching the door, and said: “[D]on’t go to the

door[,] they got a gun.” Tindley heard three gunshots.

       Johnson testified as follows. Tindley shut the door; Johnson approached the door;

and Tindley said: “[D]on’t go to the door[,] they got a gun.” Johnson “hollered” to her

grandson, who was in the living room: “[G]et down[.]” Johnson heard three gunshots,

which frightened her.

       Officer Dave Adams of the Princess Anne Police Department testified that he went

to the apartment in which Tindley and Johnson had been and found: a bullet hole in the

front door; a bullet hole above the front door; a bullet in a wall in the living room; and a

bullet in a wall in a rear bedroom.

       The jury convicted Jones of crimes, including second-degree assault of the intent-

to-frighten type against Johnson.     Jones appealed, and the Court of Special Appeals

affirmed. See Jones v. State, 213 Md. App. 208, 222, 73 A.3d 1136, 1145 (2013). Jones

filed a petition for a writ of certiorari,2 which this Court granted. See Jones v. State, 436

Md. 327, 81 A.3d 457 (2013).


       1
         A review of the record reveals that Jones entered the car on the night of September
17, 2010, and that the gunshots occurred after midnight on the morning of September 18,
2010.
       2
         In the petition for a writ of certiorari, Jones raised one issue: “Was the evidence
sufficient to convicted [Jones] of second[-]degree assault of the intent[-]to[-]frighten [type]
where the State failed to prove that [Jones] was aware of the existence of the victim?”


                                             -2-
                                      DISCUSSION

       Jones contends that the evidence was insufficient to support the conviction for

second-degree assault of the intent-to-frighten type against Johnson because: (1) the

evidence was insufficient to support a reasonable inference that Jones knew that

Johnson—or anyone other than Tindley, for that matter—was in the apartment; and (2) a

defendant cannot commit second-degree assault of the intent-to-frighten type against a

victim of whose presence in particular the defendant does not know. The State responds

that the evidence was sufficient to support the conviction for second-degree assault of the

intent-to-frighten type against Johnson because: (1) the evidence was sufficient to support

a reasonable inference that Jones knew that multiple people were in the apartment; and

(2) a defendant can commit second-degree assault of the intent-to-frighten type against a

victim of whose presence in particular the defendant does not know, as the State may

prove a defendant’s intent through circumstantial evidence.

       Evidence is sufficient to support a conviction where, “after viewing the evidence

in the light most favorable to the [State], any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Hobby v. State, 436 Md.

526, 538, 83 A.3d 794, 800 (2014) (emphasis in original) (citation and internal quotation

marks omitted). In determining whether evidence was sufficient to support a conviction,

an appellate court “defer[s] to any possible reasonable inferences [that] the trier of fact

could have drawn from the . . . evidence[.]” Id. at 538, 83 A.3d at 801 (citation omitted).

       Md. Code Ann., Crim. Law (2002, 2012 Repl. Vol.) § 3-203 criminalizes second-

degree assault, of which there are three types: “(1) intent to frighten, (2) attempted


                                           -3-
battery, and (3) battery.” Snyder v. State, 210 Md. App. 370, 382, 63 A.3d 128, 135

(Raker, J.), cert. denied, 432 Md. 470, 69 A.3d 476 (2013). A defendant commits second-

degree assault of the intent-to-frighten type where: (1) “the defendant commit[s] an act

with the intent to place [a victim] in fear of immediate physical harm”; (2) “the defendant

ha[s] the apparent ability, at [the] time, to bring about the physical harm”; and (3) “[t]he

victim [is] aware of the impending” physical harm. Snyder, 210 Md. App. at 382, 63

A.3d at 135 (citation omitted). The State may prove a defendant’s intent through “direct

[evidence] or circumstantial evidence[.]” Bible v. State, 411 Md. 138, 158, 982 A.2d

348, 359 (2009) (plurality op.) (quoting Thornton v. State, 397 Md. 704, 714, 919 A.2d

678, 683 (2007)) (second alteration in original).

       In Ford v. State, 330 Md. 682, 708, 689, 625 A.2d 984, 996, 987 (1993), this Court

held that evidence was sufficient to support convictions for assault with the intent to

disable drivers and passengers where a defendant threw rocks at moving vehicles. First,

this Court determined that the evidence was sufficient to support a finding that the

defendant knew that passengers were in the vehicles. See id. at 705, 625 A.2d at 995.

Next, this Court concluded that the evidence was sufficient to “support[] a finding that

[the defendant] inten[ded] to disable any passengers in the vehicle[s,]” as the defendant

“created a zone of extreme peril inside the vehicles.” Id. at 707, 625 A.2d at 996.

       Here, we conclude that a defendant can commit second-degree assault of the

intent-to-frighten type against a victim of whose presence in particular the defendant does

not know. A defendant commits second-degree assault of the intent-to-frighten type only

if “the defendant commit[s] an act with the intent to place another in fear of immediate


                                            -4-
physical harm[.]” Snyder, 210 Md. App. at 382, 63 A.3d at 135. Where a defendant

intentionally commits an act that creates a zone of danger, and where the defendant

knows that multiple people are in the zone of danger, the defendant intends to place

everyone in the zone of danger in fear of immediate physical harm—even if the

defendant does not know of a particular victim’s presence in the zone of danger. See

Ford, 330 Md. at 689, 705, 707, 25 A.2d at 987, 995, 996 (Where a defendant threw rocks

at moving vehicles, and where the evidence was sufficient to support a finding that the

defendant knew that passengers were in the vehicles, this Court concluded that the

evidence was sufficient to “support[] a finding that [the defendant] inten[ded] to disable

any passengers in the vehicle[s,]” as the defendant “created a zone of extreme peril inside

the vehicles.”).

       We reject Jones’s implicit contention that this Court decided Ford wrongly by

relying on the doctrine that “[i]t is permissible to infer that ‘[a defendant] intends the

natural and probable consequences of [the defendant’s] act.’” Ford, 330 Md. at 704, 625

A.2d at 994 (quoting Davis v. State, 204 Md. 44, 51, 102 A.2d 816, 819-20 (1954)).

Although Jones does not expressly criticize this Court’s logic in Ford, he contends that

the “natural and probable consequences” doctrine should not apply to specific intent

crimes in general. Jones relies on secondary sources whose authors criticize the “natural

and probable consequences” doctrine, under which, supposedly, the State must prove

merely that a defendant’s actions were negligent, not intentional. See, e.g., Wayne R.

LaFave, Criminal Law 270 (5th ed. 2010) (The “natural and probable consequences”

doctrine “destroy[s] the concept of intention and replace[s] it entirely with negligence.”);


                                           -5-
Model Penal Code § 2.06 at 312 n.42 (1985) (“To say that the accomplice is liable if the

offense committed is . . . the ‘probable consequence’ of another crime is to make him [or

her] liable for negligence[.]”).

       These concerns are unfounded.        This Court has already “disagree[d]” with

LaFave’s and the Model Penal Code’s supposition that the “natural and probable

consequences” doctrine “predicates liability on . . . negligence[.]” Sheppard v. State, 312

Md. 118, 123 n.3, 538 A.2d 773, 775 n.3 (1988). As this Court has clarified, under the

“natural and probable consequences” doctrine, a defendant is not presumed to have

intended the natural and probable consequences of the defendant’s actions; instead, a

finder of fact may, but need not, infer that the defendant intended the natural and

probable consequences of the defendant’s actions. See Thornton, 397 Md. at 733, 919

A.2d at 695 (“[O]nly an inference, rather than a presumption of intent, may be drawn

from voluntary acts . . . . [T]he trier of fact is [not] allowed to presume that one intends

the natural and probable consequences of his or her acts[.]” (Citation omitted)); see also

MPJI-Cr 3:31 (“[Y]ou may, but are not required to, infer that a person ordinarily intends

the natural and probable consequences of [his] [her] acts [and/or omissions].” (Some

brackets in original)). The lack of a presumption of intent negates the criticism of the

“natural and probable consequences” doctrine. See Model Penal Code § 2.02 at 236 n.12

(1985) (The “natural and probable consequences” doctrine “should not be taken as an

invitation to dispense with the need for making the inference” about intent. (Emphasis

added)).

       Here, first, we determine that the evidence was sufficient to support a reasonable


                                           -6-
inference that Jones knew that multiple people were in the apartment. It is undisputed

that Jones knocked on the apartment’s front door; Tindley answered the door; and Jones

asked: “[W]here the two [n*****]s at[?]” In other words, Jones indicated that he was

seeking people other than Tindley and that he believed that at least two people (in

addition to Tindley) may have been in the apartment. Indeed, Byron testified that: (1)

before the shootings, Jones said that “he [had] got[ten] into an altercation with two boys”

at Wink Lane Apartments; and (2) after the shootings, Jones said that “he was going to

kill . . . the two boys [whom] he was trying to get.” Johnson testified that, after Tindley

shut the door, but before she heard the gunshots: (1) Tindley told Johnson: “[D]on’t go to

the door[,] they got a gun”; and (2) Johnson “hollered” to her grandson: “[G]et down[.]”

Byron testified that, while he remained in the car (i.e., while he was farther away from the

apartment than Jones was), he heard “yelling.”        Based on Johnson’s testimony and

Byron’s testimony, a finder of fact could reasonably infer that Jones knew that multiple

people were in the apartment.

       Next, we conclude that the evidence was sufficient to support a reasonable

inference that Jones intended to place everyone in the apartment in fear of immediate

physical harm.     It is undisputed that, while Johnson was in the apartment, Jones

intentionally fired a gun three times, and at least two bullets entered the apartment. In

other words, Jones intentionally committed an act that turned the apartment into a zone of

danger.3   As discussed above, the evidence was sufficient to support a reasonable

       3
        The extent of a zone of danger will depend on each case’s particular circumstances.
For example, in Ford, 330 Md. at 707, 625 A.2d at 996, the zone of danger was the interior
of the vehicles at which the defendant threw rocks. Here, the zone of danger is the apartment


                                            -7-
inference that Jones knew that multiple people were in the zone of danger. Thus, Jones

intended to place everyone in the zone of danger in fear of immediate physical

harm—even if Jones did not know of Johnson’s presence in the zone of danger.

       We are unpersuaded by Jones’s reliance on State v. Whalen, 49 S.W.3d 181, 185

(Mo. 2001), in which the Supreme Court of Missouri held that evidence there was

insufficient to support convictions for first-degree assault. In Whalen, see id., while two

law enforcement officers were in a hallway and outside of the defendant’s sight, the

defendant shot a third law enforcement officer who was in his bedroom’s doorway. A

jury convicted the defendant of first-degree assault against the two unharmed law

enforcement officers. See id. On appeal, the defendant contended that the evidence was

insufficient to support a finding that he knew of the two unharmed law enforcement

officers’ presence. See id. The Supreme Court of Missouri agreed, stating that “only

speculation support[ed] the inference that” the defendant knew of the two unharmed law

enforcement officers’ presence. Id. (emphasis added). The Supreme Court of Missouri

implicitly acknowledged that a finder of fact may infer a defendant’s knowledge of a

victim’s presence; in Whalen, see id., the evidence was simply insufficient to support

such an inference.

       Similarly, we are unpersuaded by Jones’s reliance on State v. Wilson, 924 S.W.2d

648, 649, 650 (Tenn. 1996), in which the Supreme Court of Tennessee held that evidence

because Jones shot at the apartment’s front door; one bullet entered the living room; and
another bullet entered a rear bedroom. Because there is no issue as to second-degree assault
of the intent-to-frighten type against anyone who was outside the apartment, we need not
consider whether the zone of danger included other parts of, or any area outside, the
apartment building.


                                           -8-
there was insufficient to support convictions for aggravated assault where a defendant

shot at a house that contained multiple people. No people or vehicles were near the

house, and “[n]o testimony pointed to any facts—lights, noises, or other signs—which

would indicate to a passerby that the house was occupied.”          Id. at 652.   Thus, the

Supreme Court of Tennessee determined that the evidence was insufficient to support a

finding that the defendant knew that the house was occupied. See id.

       Likewise, Jones’s reliance on Hollingsworth v. State, 366 So. 2d 326 (Ala. Crim.

App. 1978), is misplaced. In Hollingsworth, id. at 331-32, 327, the Court of Criminal

Appeals of Alabama held that evidence there was insufficient to support a conviction for

assault with the intent to murder where a defendant shot into a house. “[T]here [was] no

evidence what[so]ever” that the defendant knew “that the house was . . . occupied[.]” Id.

at 331-32.

       Because we determine that the evidence was sufficient to support a reasonable

inference that Jones knew that multiple people—i.e., people other than Tindley—were in

the apartment, this case is distinguishable from Whalen, 49 S.W.3d 181, Wilson, 924

S.W.2d 648, and Hollingsworth, 366 So. 2d 326, in which appellate courts held that

certain evidence was insufficient to support convictions for assault where the evidence

was insufficient to support findings that the defendants knew of the presence of more than

one victim, or the presence of any victims at all.4

       4
         We also reject Jones’s contention that the circuit court erred in denying the motion
for judgment of acquittal as to second-degree assault of the intent-to-frighten type against
Johnson, because, in granting the motion for judgment of acquittal as to attempted first-
degree murder against Johnson and her grandson, the circuit court stated: “I’m not even sure
[that] Jones knew that there was anybody [other than Tindley] in the apartment.” Although


                                             -9-
       We hold that the evidence was sufficient to support Jones’s conviction for second-

degree assault of the intent-to-frighten type against Johnson, and a defendant can commit

second-degree assault of the intent-to-frighten type against a victim of whose presence in

particular the defendant does not know.


                                   JUDGMENT OF THE COURT OF SPECIAL
                                   APPEALS AFFIRMED. PETITIONER TO PAY
                                   COSTS.




the circuit court may have speculated as much in considering attempted first-degree murder,
attempted first-degree murder is comprised of elements that second-degree assault lacks,
such as deliberation, premeditation, and a substantial step beyond mere preparation; thus, it
does not follow from the circuit court’s grant of the motion for judgment of acquittal as to
attempted first-degree murder that the evidence was insufficient to support a conviction for
second-degree assault of the intent-to-frighten type against Johnson.


                                           - 10 -
