Preview:

To pinpoint the precise issue before us on this consolidated appeal, it may be helpful to posit a criminal jury composed of twelve law professors. A 21-year-old defendant is before them on

a two-count indictment, the first count charging the Theft of an automobile and the second, the Unauthorized Use of that automobile. Undisputed evidence established that the defendant, without the consent of the owner, broke the window of the automobile, "hot wired" the ignition, and drove off, alone. He was apprehended by The defendant,

the police two minutes later, four blocks away.

with no criminal record, had apparently never spoken to anyone with respect to that or any other automobile. the police and did not testify. He gave no statement to

There was no suggestion that the After several hours of

defendant was not both sane and sober.

deliberation, the jury returned with a question: We are unanimously persuaded beyond a reasonable doubt that the defendant unlawfully took the car and specifically intended to deprive the owner of it. As to the duration of that intended deprivation, however, we don't have a clue. We are not persuaded that the defendant intended to deprive the owner of the car permanently or for such a period as to appropriate a portion of its value. Neither are we persuaded that the defendant intended to deprive the owner of the car only temporarily. Given these findings and nonfindings, must we acquit the defendant on all charges or may we resolve our doubt by convicting him of the less blameworthy charge? Please advise. We would advise that hypothetical jury to convict of

Unauthorized Use.

There is no eye in the hurricane of guilt. In

reaching that conclusion, we are not unmindful of Henry v. State, 273

- 2 Md. 131, 328 A.2d 293 (1974). We venture to suggest, however, that

Henry v. State is no longer binding, inviting as we do so the full scrutiny of the Court of Appeals to be brought to bear on a vexing doctrinal problem. It is the problem of the relationship between

two crimes that share every element of a common corpus delicti, but then differ only as to the levels of blameworthiness of their respective mentes reae. culpability We believe that different gradations or degrees of all rise in the same direction, with each level

telescoping imperceptibly into the next higher level as fact finders are, one by one, persuaded that the pertinent boundary marker has been passed. We do not believe that related degrees of

blameworthiness point in opposite directions, creating the anomaly (if not absurdity) of some intermediate "free zone" where one might be not guilty enough for the greater crime but too guilty for the lesser crime. We venture to advance this position because of our belief that the whole mode of legal and semantic analysis typified by cases such as Henry and our own McCarson v. State, 8 Md. App. 20, 257 A.2d 471 (1969) has, in closely analogous situations, been superseded by a more sophisticated and semantically more finely tuned analysis exemplified by the Court of Appeals opinion in Lightfoot v. State, 278 Md. 231, 360 A.2d 426 (1976). The Cases at Hand

- 3 In each of the two juvenile delinquency adjudications in this consolidated appeal, the key issue is exactly the same. It is not

at all fact-specific, but is presented to us as an abstract legal question in two appellate briefs that are essentially verbatim copies of each other. Consolidation is appropriate.

At an adjudicatory hearing before Judge Martin P. Welch in the Circuit Court for Baltimore City, the appellant Lakeysha P. was found to have committed the delinquent acts of Theft of a Motor Vehicle and the Unauthorized Use of that same Vehicle--counts one and three, respectively, of the juvenile, multi-count petition filed against her. At the subsequent disposition hearing, Lakeysha She was placed on probation

was found to be a delinquent child. for an indefinite period.

Judge Welch indicated that he was

merging the "lesser" offense of Unauthorized Use into the "greater" offense of Theft. Notwithstanding having merged the finding on the

Unauthorized Use count, the judge then dismissed the count. It was also at an adjudicatory hearing before Judge Welch that the appellant Dontanyon T. was found to have committed the

delinquent acts of Theft of a Motor Vehicle and the Unauthorized Use of that same Vehicle. It was at a subsequent disposition

hearing before Judge Paul A. Smith that Dontanyon was found to be a delinquent child. He was placed on probation for one year.

Judge Smith ordered restitution in the amount of $300 on the Theft

- 4 count and opined that the Unauthorized Use count had merged into the Theft count. The Issue Both appellants contend that their judgments of delinquency, based on findings that they had committed automobile Thefts, were fatally flawed because such findings were inconsistent with the companion findings that they had been guilty of the Unauthorized Use of the automobiles in question. The argument is that if they

only intended to take the cars temporarily, findings they claim to be implicit in the Unauthorized Use convictions, they could not, ipso facto, have intended to take the cars permanently (or quasipermanently), which would preclude Theft convictions. There is a

surface appeal to such an argument, but it is fallacious. The argument, we note, is not a complaint about multiple punishment, and In Re Montrail M., 325 Md. 527, 535, 601 A.2d 1102, 1106 (1992) (holding error that a failure only one to merge two is counts is is not not

reversible apposite.

where

penalty

imposed)

The argument, rather, is that inconsistent verdicts of

Theft and Unauthorized Use cannot stand, quite aside from any concern about multiple punishment. Nor is Anderson v. State, 320 Md.

17, 30, 575 A.2d 1227, 1233 (1990), apposite (where an apparent inconsistency in verdicts was explained away and shown not to have been an inconsistency at all).

- 5 This contention poses squarely the question of whether the crime of Unauthorized Use of an Automobile is logically

inconsistent with the Theft (or larceny) of that automobile or is simply a closely related crime with a lesser included mens rea. What Did the Legislature of 1880 Intend? The specimen on the dissecting table is the mens rea of

Unauthorized Use.

The crime itself is now codified as MD. ANN. CODE, The statute creating the crime was ch. 164

art. 27,

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