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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 113 SEPTEMBER TERM, 1997

DAVID MICHAEL FISCHER

v.

STATE OF MARYLAND

Cathell, Davis, Byrnes, JJ.

Opinion by Cathell, J.

-2Filed: September 26, 1997

David Michael Fischer was charged in the Circuit Court for Baltimore County under a five-count indictment as follows: count

1, murder; count 2, arson of a dwelling; count 3, arson of a structure; count 4, first degree burglary; and count 5, second degree burglary. Appellant was tried before a jury, and at the close of the state's case-in-chief, the court granted a motion for a judgment of acquittal as to the first degree burglary count. At

the close of all the evidence, the court granted a motion for judgment of acquittal as to the second degree burglary count. The

other three counts went to the jury, and the jury found appellant not guilty of first degree murder, guilty of second degree murder, guilty of the arson of the dwelling, and guilty of arson of the structure. After appellant's motion for a new trial was denied, he was sentenced to a thirty-year term of incarceration on the second degree murder conviction and a consecutive thirty-year term of incarceration for the conviction of arson of a dwelling. The court

merged the conviction for arson of a structure into the conviction for arson of a dwelling. review: 1. Did the trial court err in denying . . . appellant's motion for a judgment of acquittal [on] the charge of arson of a dwelling house? Did the trial court err in failing to instruct the jury: Appellant raises two questions for our

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- 2 A) As to the definition of an accomplice, and that the testimony of an accomplice must be corroborated, and B) That . . . appellant's prior convictions for theft and burglary could only be considered in determining . . . appellant's credibility? FACTS The murder victim was a fifteen year old girl who ran away from home in the late summer of 1995. On April 16, 1996, Baltimore

County Police discovered her decomposed remains in a shallow grave off of River Road in Catonsville. The cause of death was

determined to be a single gunshot to the head. The State alleged that appellant killed the girl sometime during the fall of 1995 at 1125 North Rolling Road and then, with the help of Jonathan Izquierdo (Izquierdo), dumped her body near River Road in Catonsville. The State also alleged that on February

28, 1996, appellant attempted to destroy potential evidence by setting fire to the house in which the murder took place. To establish appellant's criminal agency, the State relied primarily upon the testimony of three individuals: Izquierdo, John Tuchman (Tuchman), and Charles Walton (Walton). All three

individuals knew each other for at least one year and agreed to cooperate with the police. contact with appellant. Each of the individuals also had

Additionally, these three witnesses agreed

to cooperate and testify against appellant, in part, because each

- 3 faced significant legal problems of his own.1 Izquierdo testified he met appellant through a mutual friend, Khori Smith (Smith), in March of 1995. Izquierdo testified that

appellant regularly carried in his waistband a nine millimeter Glock, which he first showed Izquierdo sometime prior to September of 1995. Izquierdo also testified that in September of 1995, he

accompanied appellant to an uninhabited house located at 1125 North Rolling Road because appellant wanted to "show him something." Izquierdo stated that, once inside the house, appellant opened a cabinet and removed a dead body that was wrapped in a blanket. Izquierdo did not recognize the body at that time. He told the

jury that he did not know the victim, but later remembered meeting her at a party at appellant's house. After appellant showed Izquierdo the body, Izquierdo helped him put it in the back of appellant's truck. Once in the truck, Izquierdo appellant. noticed a set of black handcuffs that belonged to

Appellant and Izquierdo then drove to River Road in

Izquierdo had been identified as a potential accomplice to appellant and was charged as an accessory to the victim's murder. In exchange for his cooperation, the State agreed to dismiss the charges. Tuchman had been charged with two counts of selling crack cocaine in one case and with assault in another case. In exchange for having the drug charges dropped, Tuchman agreed to act as an informant to Baltimore County Police Detective William Ryan (Ryan). Walton was under investigation for armed robbery in Howard County and agreed to show Ryan the location of the victim's body in exchange for help in his armed robbery case.

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- 4 Catonsville and threw the body over a three foot high concrete wall. Appellant wanted to fire a shot into the dead body from his

Glock, but Izquierdo talked him out of it. Tuchman testified that, on January 5, 1996, he told William Ryan, a Baltimore County Police Detective, about a conversation that had taken place between him and appellant. The conversation

took place sometime between November 1995 and January 1996, and concerned a girl who appellant had killed at a house on Rolling Road. Tuchman testified that appellant told him that he handcuffed

the victim, choked her first with his hands and then with a board, and then broke her back. On January 5, 1996, Tuchman took Detective Ryan to 1125 North Rolling Road to investigate. Ryan testified that the location was

a very rundown, apparently abandoned house that was starting to fall apart, with broken windows, no furniture, and graffiti on all the walls and floors. Because they could not find the body, Ryan

told Tuchman to become friendly with appellant in order to find out where the body was located. On February 23, 1996, Ryan outfitted Tuchman with a body wire and recorded part of a conversation between Tuchman and Izquierdo as they drove to, and went inside, the Rolling Road house. Once

inside, Izquierdo showed Tuchman the cabinet in which the body had been kept. On the morning of February 27, 1996, Ryan received a Later that afternoon Ryan commenced

telephone call from Izquierdo.

a search of the River Road area, but he again failed to locate the

- 5 body. Tuchman testified that at approximately 9:00 p.m. on February 27, 1996, he called Ryan and told him that appellant was going to burn down the house on Rolling Road. At Ryan's direction, Tuchman Appellant

called appellant back and told him that he would help.

then told Tuchman to pick him up around midnight and to bring gasoline. In the meantime, Ryan went to 1125 North Rolling Road to

establish surveillance. Just after midnight, Tuchman and Keith Sensibox (Sensibox) arrived at appellant's house driving a blue Mitsubishi. On the way

to the house, the three men stopped off at a gas station where Tuchman acquired a pack of matches. After arriving and parking

near the house, Tuchman and appellant went inside while Sensibox waited outside by the car. Tuchman testified that once inside,

appellant selected a room filled with carpet, piled up the carpet, and poured gasoline onto it. According to Tuchman's testimony, After Tuchman lit

appellant instructed him to light the carpet.

the carpet, both he and appellant left the premises and went back to the car where Sensibox was waiting. While they were proceeding

to a nearby parking lot to watch the fire, the police stopped the vehicle and arrested all three of the occupants. On April 16, 1996, Ryan and Walton went to the River Road area and recovered the body. At trial, Deputy Chief Medical Examiner

Dr. Ann Dixon testified that an autopsy of the body revealed the cause of death was a single gunshot wound to the head.

- 6 At trial, appellant testified that he did not kill the victim. Appellant also testified that, on the evening of February 28, 1996, he went with Tuchman to 1125 Rolling Road, not knowing that Tuchman planned to burn down the building. The defense put on additional

testimony that appellant was framed for both the murder and the arson because of a personal vendetta Tuchman, Izquierdo, and Walton had against appellant. Appellant was convicted of second degree murder, arson of a dwelling, and arson of a structure. This timely appeal followed.

DISCUSSION 1. Conviction for Arson of a Dwelling

Appellant asserts the trial court erred in denying his motion for judgment of acquittal on the charge of arson of a dwelling because the structure in question was not a dwelling. He argues

there was insufficient evidence to allow the jury to render a decision that the building in question was a dwelling. The test for sufficiency of the evidence is "`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.'" Atkinson v. State, 331 Md. 199, 205 (1993)(quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979)).

Appellant contends that when applying this standard to the case sub

- 7 judice, no reasonable trier of fact could have concluded that the structure in question was a "dwelling". affirm. Appellant's assertion revolves around the definition of a dwelling under section 5(b) of Article 27 of the Maryland Code. This section defines dwelling as "a structure, regardless of We disagree and shall

whether an individual is actually present, any portion of which has been adapted for overnight accommodation of individuals, including any kitchen, shop, barn, stable, or outhouse that is parcel to, belonging to, or adjoining the structure." Repl. Vol.), Art. 27,

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