                REPORTED

  IN THE COURT OF SPECIAL APPEALS

             OF MARYLAND

                  No. 2554

           September Term, 2013



         NATHANIEL SMITH, SR.

                     v.

         STATE OF MARYLAND




      Woodward,
      Kehoe,
      Arthur,

                    JJ.


            Opinion by Kehoe, J.


Filed: November 25, 2015
       Nathaniel Smith, Sr. shot an erstwhile friend in the head during an argument. A

jury of the Circuit Court for Prince George’s County convicted him of first degree assault

and related crimes, including, and of interest to us for the purposes of this appeal, illegally

possessing a firearm after a disqualifying conviction.

       Mr. Smith raises two issues. First, he argues that there was insufficient evidence to

sustain the convictions for illegal possession of a firearm because the prosecutor failed to

present evidence of the disqualifying conviction to the jury during the State’s case-in-

chief. We do not agree. Second, he asks us to undertake plain error review to decide

whether his complaint of prosecutorial misconduct during closing argument warrants

reversal. This is not an appropriate case for plain error review. We will affirm the

convictions.

                                        Background

       This appeal arises out of a dispute between Smith and a friend, Herbert Mungo,

over a credit card reader. Their disagreement degenerated into an altercation during which

Smith shot Mr. Mungo. Smith was charged with attempted second degree murder, first

degree assault, use of a handgun in the commission of a crime of violence, and possession

of cocaine. Additionally, he was charged with violating Public Safety Article (“PS”) § 5-

133(b)1—illegal possession of a regulated firearm after having been convicted of a

       1
        Section 5-133(b) provides in pertinent part:
       (b) Subject to § 5-133.3 of this subtitle, a person may not possess a
       regulated firearm if the person:
       (1) has been convicted of a disqualifying crime;
                                                                                (continued...)
disqualifying crime (Count 5); PS § 5-133(c)2—illegal possession of a regulated firearm

after a felony conviction for violating Criminal Law Article (CL) § 5-6023 (Count 6); and

PS § 5-1444—possession of a firearm in violation of Subtitle 5 of the Public Safety

Article (Count 7).


       1
        (...continued)
       (2) has been convicted of a violation classified as a common law crime and
       received a term of imprisonment of more than 2 years[.]
                                           ****
       2
        PS § 5-133(c) states in pertinent part:
       (c)(1) A person may not possess a regulated firearm if the person was
       previously convicted of:
       (i) a crime of violence;
       (ii) a violation of § 5-602, § 5-603, § 5-604, § 5-605, § 5-612, § 5-613, or §
       5-614 of the Criminal Law Article; or
       (iii) an offense under the laws of another state or the United States that
       would constitute one of the crimes listed in item (i) or (ii) of this paragraph
       if committed in this State.
                                             ****
       3
        CL § 5-602 states:
       Except as otherwise provided in this title, a person may not:
       (1) distribute or dispense a controlled dangerous substance; or
       (2) possess a controlled dangerous substance in sufficient quantity
       reasonably to indicate under all circumstances an intent to distribute or
       dispense a controlled dangerous substance.
       4
       The charging document refers to PS § 5-143. That section has been renumbered as
§ 5-144. It reads in pertinent part:
      (a) Except as otherwise provided in this subtitle, a dealer or other person
      may not:
      (1) knowingly participate in the illegal sale, rental, transfer, purchase,
      possession, or receipt of a regulated firearm in violation of this subtitle[.]
                                              2
       The jury acquitted Smith of the attempted murder charge, but found him guilty on

the remaining counts. At sentencing, the trial court merged the convictions for violating

PS § 5-133(b) and PS § 5-144 with the conviction for violating PS § 5-133(c) and

imposed a sentence of five years’ incarceration, to run concurrently with a sentence of

twenty-five years’ incarceration for the first-degree assault conviction.5 This appeal

followed.

                                          Analysis

                            1. The Sufficiency of the Evidence

                                 1.1. Standards of Review

       Normally, when reviewing a challenge to the sufficiency of the evidence to sustain

a conviction, we decide “whether, after viewing the evidence in the light most favorable

to the prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” Derr v. State, 434 Md. 88, 129 (2013), cert. denied,

134 S. Ct. 2723 (2014) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis

in Jackson)).

       Smith’s sufficiency challenge, however, calls other principles into play. His attack

upon the legal adequacy of the evidence supporting the firearms possession convictions is

limited to his assertion that the State failed to present evidence of a disqualifying

conviction in the State’s case-in-chief. In response, the State contends that the parties

       5
      The court also imposed concurrent sentences for the use of a handgun in the
commission of a crime of violence and possession of cocaine convictions.
                                              3
stipulated to the disqualifying conviction and that there was no requirement that the

stipulation be presented to the jury prior to the close of the State’s case. Smith disagrees

with both of these contentions. Certainly, if an element of the offense has not been

established, then the conviction fails as a matter of law.

       As we will relate, the trial court concluded that the parties had in fact agreed to

stipulate that Smith had been convicted of a disqualifying crime. We will review this

finding for clear error. Whether the State was required to present the stipulation to the

jury prior to the close of its case is a question of law, which we review de novo.

    1.2. The Use of Stipulations in Prosecutions for Illegal Possession of Firearms

       In pertinent part, § 5–133 of the Public Safety Article makes it illegal for persons

convicted of certain crimes to possess a firearm. Hicks v. State, 189 Md. App. 112, 134

(2009). In order to secure a conviction for violating PS §§ 5-133(b)(1), (c)(i), or (c)(ii),

the State must establish that the handgun involved was a regulated firearm, that the

defendant possessed this firearm, and that he was precluded from doing so because of a

disqualifying status, in this case certain prior convictions. See Nash v. State, 191 Md.

App. 386, 394, cert. denied, 415 Md. 42 (2010).

       Where, as in the case before us, an element of the illegal possession charge is a

predicate prior conviction, a prosecutor has the opportunity “to introduce evidence of the

sort generally explicitly forbidden by the propensity rule, and to do it in circumstances

where the element of predicate felon status is uncontestable and uncontested by the


                                               4
defendant.” D. Michael Risinger, John Henry Wigmore, Johnny Lynn Old Chief, and

“Legitimate Moral Force,” 49 HAST. L.J. 403, 420 (1998). The prejudical effect of such

evidence can be very serious. One way of avoiding, or at least minimizing, these effects is

for the parties to stipulate that the defendant has been convicted of a disqualifying

offense. In Old Chief v. United States, 519 U.S. 172, 185 (1997), the Supreme Court held

that a trial court abused its discretion by refusing to accept a defendant’s stipulation to the

existence of a prior disqualifying conviction in a felon-in-possession case.

       The Court of Appeals adopted the approach sanctioned by Old Chief in Carter v.

State, 374 Md. 693, 722 (2003), explaining that “when a defendant admits or the parties

stipulate to the previous-conviction element of a charge under [the predecessor to PS § 5-

133], the trial judge should inform the jury that the defendant admits that he or she has

been convicted of a [disqualifying] crime[.]” The Carter Court went slightly further,

deciding that fewer details should be disclosed, and stated that “the name or nature of a

previous conviction must always be withheld from the jury in a felon-in-possession case

in which the defendant offered to stipulate or admit to that previous conviction.” Carter,

374 Md. at 720 n.8.

                                1.3. What happened at trial

       Prior to jury selection, the parties and the trial court discussed the manner by

which Smith’s disqualifying convictions should be addressed (emphasis added):

       [DEFENSE COUNSEL]: The appropriate method is for the State to provide
       certified conviction that, in fact, he is a felon, which I would stipulate.

                                               5
      THE COURT: Okay. And if that’s the case, then I have not received any
      sort of certification from the State.

      [PROSECUTOR]: We normally don’t give certifications. We show them
      in court, but I don’t have --

      [DEFENSE COUNSEL]: Typically I have received it in discovery from
      other prosecutors and in other counties, including this county, but I’ve not
      received it from [the prosecutor]. And so the appropriate method pursuant
      to the Court of Special Appeals is that . . . bifurcation is not the appropriate
      method.[6]

                                          ****

      THE COURT: [B]ifurcation [is] not appropriate, okay. We’ll deal with
      that when [we] come to it.

      [DEFENSE COUNSEL]: Thank you, Your Honor. Whatever [the
      prosecutor] prefers.



      6
        A reference to Nash v. State, 191 Md. App. at 402–02. In that case, the parties
agreed that the question of whether there was a disqualifying prior conviction would be
submitted to the trial court, as opposed to the jury. We stated:

      [T]he jury was not advised that appellant was charged with possession of a
      firearm due to his prior conviction of a crime that prohibited him from
      possessing a firearm. No evidence or stipulation regarding the prior
      conviction was presented to the jury. Thus, whether the stipulation was that
      the court would determine the prior conviction element or that the parties
      stipulated to the fact of the prior conviction, the trial proceeded as a
      bifurcated trial, with the jury considering only the issue of possession.
                                            ****
      [W]e hold that bifurcation of the elements of the offense of possession of a
      regulated firearm by a person previously convicted of a crime of violence is
      improper, even if agreed to by the parties. The court here erred in
      proceeding in this fashion.

Id.
                                              6
       The prosecutor did not address the issue of Smith’s disqualifying conviction

during the State’s case. After the State closed, Smith moved for judgments of acquittal.

As to counts 5, 6, and 7, that is, the counts that charged Smith with knowingly possessing

a firearm after conviction of a disqualifying crime, defense counsel asserted that “there is

no evidence that my client did knowingly participate in the illegal possession of a

regulated firearm, no evidence has been generated as to Count 5, 6 and 7.”

       Following argument, the trial court remarked (emphasis added):

       THE COURT: As to Count 6, a firearm, possession after a felony
       conviction we talked about this yesterday. We decided it was not going to
       be a bifurcated thing, but a stipulation with regard to the felony
       convictions. Is that your recollection, [defense counsel]?

       [DEFENSE COUNSEL]: Yes, sir.

       THE COURT: With that stipulation let me move on . . . .

       The discussion turned to the question of proving Smith’s status, namely, that he

was disqualified from possessing a firearm:

       [DEFENSE COUNSEL]: Your Honor, I would just like to put on the
       record that certainly as it relates to yesterday, when the comment came up
       as to bifurcation on Counts 5, 6 and 7, I did say certainly those are things
       that we would stipulate to. However, the stipulation has to be introduced
       into evidence before the State closes their case. The State did not use that
       stipulation at the close of the State’s. If that had been done, it would have
       been without any objection from the defense because that’s what I agreed
       to . . . . [T]hough we may agree of, yes, we will stipulate, the stipulation still
       has to be put on the record and presented in the body of the State’s case and
       is that the only reason why I’m making that motion at this time as it relates
       to Counts 5, 6, and 7. Thank you, Your Honor.

                                             ***

                                               7
       In response, the prosecutor asked permission to reopen its case-in-chief so that “we

could put the stipulation on the record.”7 Defense counsel objected to this as well.

       After a brief recess, and outside of the jury’s presence, the trial court stated:

              During the break I wanted to research just a little about whether or
       not the State could reopen its case at this juncture, and then I took a look at
       my notes and I have in my notes that on the record in the discussion
       yesterday about whether we bifurcate[,] the defendant stipulated to [the]
       prior conviction. . . . But again, my notes show yesterday that that

       7
       The trial court had the authority to grant the State’s request to reopen its case. Md.
Rule 5-611(a) states:

       The court shall exercise reasonable control over the mode and order of
       interrogating witnesses and presenting evidence so as to (1) make the
       interrogation and presentation effective for the ascertainment of the truth,
       (2) avoid needless consumption of time, and (3) protect witnesses from
       harassment or undue embarrassment.

        In Wisneski v. State, 169 Md. App. 527, 553–55 (2006), aff’d, 398 Md. 578 (2007),
we held that the trial court did not abuse its discretion in permitting the State to re-open
its case to allow the court to read a stipulation to the jury regarding the defendant’s prior
conviction for a disqualifying offense. In reaching this result, we set out the applicable
standard:

              The critical issue in determining whether a court abused its
       discretion in reopening the case is whether its doing so impaired the ability
       of the defendant to answer and otherwise receive a fair trial.

               Usually, whether the reopening of evidence impaired the defendant's
       ability to receive a fair trial is answered by reference to the State’s intention
       in withholding the evidence, i.e., whether it did so in order to gain an unfair
       advantage from the impact later use of the evidence likely would have on
       the trier of facts, the nature of the evidence, and its relationship to evidence
       already in the case.

Id. at 554 (quoting Cason v. State, 140 Md. App. 379, 391 (2001)) (quotation marks and
internal citations omitted).
                                               8
          stipulation was made on the record.

          The State then inquired as to how the stipulation would be entered into the record.

Defense counsel responded that “I would not object to the stipulation being that Mr.

Nathaniel Smith, Senior, by law, is not permitted to possess a firearm.” After the jurors

returned, the trial court did not expressly indicate whether it granted or denied the State’s

motion to re-open its case. Instead, the court informed the jury that:

          During the break we have a stipulation for you. And that stipulation is that
          the parties agree the State and the defense agree that by law Mr. Nathaniel
          Smith is prohibited from possessing a firearm.

          The defense did not object and then rested its case. The trial court and parties then

discussed jury instructions. The trial court indicated that it intended to “mention the

stipulations” during its instructions. Neither party objected and, in the course of its

instructions, the court referred to the stipulation and told the jury that “it should be

considered proven . . . [that] the defendant, Mr. Smith, is prohibited by law from

possessing a regulated firearm.” Defense counsel objected to this instruction.

                                  1.4. Appellant’s Contentions

          Smith first asserts that he never agreed to stipulate to his prior conviction. He

states:

          Certainly, when a defendant stipulates to the prior conviction element of the
          offense, the judge should inform the jury that the defendant admits that he
          has been convicted of a [disqualifying] crime . . . . The problem here is that
          there did not appear to be a final agreement to stipulate nor a recitation of a
          stipulation read into the record in the State’s case in chief. When the trial
          court was alerted to this fact, it concluded, in error, that the defense had

                                                 9
       stipulated to the prior conviction on the previous day. Review of the
       transcriptions of the trial reveals that the court was mistaken.

       We read the record differently. Without belaboring the point, we believe that the

transcript is clear that defense counsel expressly agreed to stipulate to the existence of

Smith’s prior disqualifying conviction; indeed, defense counsel’s offer to stipulate

triggered the initial discussion between the court and counsel. Moreover, defense

counsel’s statement that he would be satisfied with “whatever”—within reason,

presumably—the prosecutor wanted in terms of the wording and presentation of the

stipulation, hardly suggests that Smith was withholding approval until the parties agreed

upon specific wording of the stipulation. The trial court’s finding that Smith had agreed to

the stipulation is not clearly erroneous.

       Second, we turn to Smith’s argument that the State’s failure to introduce the

stipulation before the close of its case undermines the sufficiency of his convictions for

illegal possession of a regulated firearm. Without evidence as to the form of the

stipulation in the prosecution’s case-in-chief, his theory goes, the status element for these

offenses is not satisfied. Neither this Court nor the Court of Appeals appears to have

addressed this precise issue. However, appellate courts in other jurisdictions have

considered Smith’s contention, and variations on it, on several occasions.

       A representative decision is United States v. Harrison, 204 F.3d 236 (D.C. Cir.),

cert. denied, 531 U.S. 911 (2000), an unlawful possession of a firearm case. At trial,

Harrison stipulated to the two elements of the offense, including his status as a prior

                                              10
offender, but the stipulations were not formally read to the jury. Nor did the government

offer any other evidence on those elements. 204 F.3d at 237-38.

       The jury convicted Harrison, and he appealed, seeking to overturn his conviction

as unsupported by the evidence – specifically emphasizing that two crucial elements for a

felon-in-possession conviction were absent, notwithstanding the parties’ stipulations.

       Rejecting Harrison’s challenge to the conviction, the United States Court of

Appeals for the District of Columbia Circuit held “that Harrison has, by stipulating,

waived any right to contest the absence of proof on the stipulated elements.” Id. at 240.

The court explained:

       The premise of the waiver theory is simple: Upon entering into a stipulation
       on an element, a defendant waives his right to put the government to its
       proof of that element. A stipulation constitutes an express waiver made . . .
       preparatory to trial by the party or his attorney conceding for the purposes
       of trial the truth of some alleged fact . . . thereafter to be taken for granted;
       so that the one party need offer no evidence to prove it and the other is not
       allowed to disprove it . . . .

              It is well settled that a defendant, by entering into a stipulation,
       waives his right to assert the government’s duty to present evidence to the
       jury on the stipulated element. The only possible point of contention is
       whether a defendant can contest the government’s failure to read the
       stipulation itself to the trier of fact. We conclude that a defendant cannot.

Id. (citations, internal quotation and punctuation marks omitted). The Court concluded:

               We conclude that there is little to be gained from holding that a
       stipulation, which unarguably waives a defendant’s right to require the
       government to produce any evidence regarding that stipulation, nevertheless
       fails to waive the defendant’s right to require that stipulation to be read to
       the jury. Surely, the government’s failure formally to read stipulations is
       not “wise trial practice.” . . . . However, nothing in either law or logic

                                              11
       compels us to reverse a conviction when the defendant enters into a
       stipulation on an element and then seeks a windfall from the government’s
       failure to formally read the stipulation to the jury.

Id. at 242 (citations omitted).

       In United States v. Hardin, 139 F.3d 813 (11th Cir.), cert. denied, 525 U.S. 898

(1998), another felon-in-possession case, Hardin and the government entered into a

written stipulation that he had a prior conviction. Neither party filed the stipulation with

the clerk before trial. Defense counsel told prospective jurors about Hardin’s status, the

district court mentioned this status during the preliminary jury instructions, the

prosecutor, without objection, told the jurors that the felon status was not an issue, and

defense counsel acknowledged this during her opening statement. 139 F.3d at 814. The

prosecution “did not read, publish or otherwise offer the stipulation into evidence[,]” and

Hardin’s felon status did not come up again until a brief reference during the

government’s summation. Id.

       On appeal from his conviction, Hardin maintained that the government’s failure to

offer the stipulation into evidence undermined his conviction. The Eleventh Circuit

disagreed and concluded:

               In holding that Hardin’s stipulation eliminated the government’s
       burden to produce evidence of his felon status, we in no way imply that
       failing to offer a stipulation into evidence is wise trial practice. It is fair to
       assume that, in this case, the government had every intention of offering the
       stipulation for admission as evidence. . . . . Hardin, however, has no legal or
       equitable basis to contest the government’s mistake. He received his
       benefit of the bargain-prejudicial information about his prior conviction
       never entered into the jury’s deliberations.

                                               12
Id. at 817 (citations omitted). Other courts have reached the same conclusion on similar

facts. See United States v. Ayoub, 498 F.3d 532, 545-47 (6th Cir. 2007), cert. denied, 555

U.S. 830 (2008); United States v. Smith, 472 F.3d 752, 753 (10th Cir. 2006); United

States v. Muse, 83 F.3d 672, 678–79 (4th Cir.), cert. denied, 519 U.S. 904 (1996) (dicta);

State v. Wolf, 139 P.3d 414, 418 (Wash. App. 2006), rev. denied, 161 P.3d 1028 (Wash.

2007).

         The reasoning reflected in these decisions is both sensible and fair. We hold that,

by consenting to a stipulation, Smith relieved the State of its obligation to prove that he

had previously been convicted of a disqualifying crime as part of its case-in-chief. We

conclude, as did the Hardin Court, that Smith received exactly what he bargained for

when he agreed to the stipulation and suffered no prejudice when the stipulation was

presented to the jury by the court instead of by the prosecutor during the State’s case-in-

chief.

                           2. An Improper Rebuttal Argument?

         In the State’s rebuttal argument, the prosecutor twice characterized Smith’s case as

consisting of “smoke and mirrors.” Smith asserts that these statements constituted

“repeated improper and prejudicial statements denigrating defense counsel and his role at

trial.” Acknowledging that he did not object to these statements, Smith urges that the trial

court’s lapse in correcting what he characterizes as an egregious closing argument

constituted plain error and asks us to reverse his convictions. However, non-error does


                                               13
not constitute plain error.

       Smith is correct that a prosecutor may not impugn the ethics or professionalism of

defense counsel in closing argument. When prosecutors cross the line, and defense

counsel objects, trial courts should do something about it. See Reidy v. State, 8 Md. App.

169, 172-79 (1969). But contrary to Smith’s assertions, the State’s closing argument was

not improper—the “smoke and mirrors” comments were clearly directed to defense

counsel’s argument and did not impute impropriety or unprofessional conduct to defense

counsel. Smith’s claims of error and unfair prejudice are without basis.



                      THE JUDGMENTS OF THE CIRCUIT COURT FOR PRINCE
                      GEORGE’S COUNTY ARE AFFIRMED. APPELLANT TO
                      PAY COSTS.




                                            14
