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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 2971 September Term, 2010 __________________________

RUSSELL T. BASS v. STATE OF MARYLAND __________________________ *Eyler, James R., Watts, Davis, Arrie W. (Retired, Specially Assigned), JJ. _________________________

Opinion by Davis, J. _________________________ Filed: June 28, 2012 *Eyler, James R., J., participated in the hearing and conference of this case while an active member of this Court; he participated in the adoption of this opinion as a retired, specially assigned member of this Court.

Appellant, Russell T. Bass, was tried and convicted by a jury in the Circuit Court for Montgomery County of burglary in the third degree. On January 11, 2011, he was sentenced to ten years incarceration and three years unsupervised probation. From the conviction and sentence, appellant noted this timely appeal, raising the following question 1 for our review: Did the circuit court err by refusing to allow appellant's request to submit the lesser included charge of fourth-degree burglary to the jury? For the reasons that follow, we answer the question in the affirmative. FACTS AND LEGAL PROCEEDINGS Appellant and Christopher Winston were long-time friends and co-members of a rap group. Over the years, appellant often visited Winston at his apartment at 366 North Summit Avenue, Gaithersburg, Maryland, where Winston lived with his mother, Tonia Winston, his sister, Felicia Winston and his girlfriend, Krystina Johnson. Christopher Winston's

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Maryland Law