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IN THE COURT OF APPEALS OF MARYLAND

No. 87 September Term, 2009 _________________________________________

ERICK LEROY SPENCER v. STATE OF MARYLAND

__________________________________________ Bell, C. J. Harrell Greene *Murphy Adkins Barbera Eldridge, John C. (Retired, Specially Assigned)

JJ. __________________________________________ Opinion by Eldridge, J. Harrell, Adkins and Barbera, JJ., dissent. _________________________________________ Filed: October 25, 2011 *Murphy, J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and adoption of this opinion.

Petitioner Erick Leroy Spencer was charged and convicted of robbery, theft over $500, and second degree assault. Spencer was sentenced to imprisonment for robbery, and, for purposes of sentencing, the other two convictions were merged. On appeal, he has challenged the sufficiency of the evidence to sustain his robbery conviction. The State in this case presented evidence showing that Spencer entered an automobile service center and stated to the cashier: "Don't say nothing." We shall hold, however, that the State failed to prove an essential element of the crime of robbery. There was no evidence that Spencer conducted himself in a manner that could cause apprehension in a reasonable person that the petitioner was about to apply force. When the State fails to produce any evidence of one of the elements of the offense charged, the conviction cannot stand. Accordingly, we shall reverse the robbery conviction. I. The facts in this case are uncontested. On December 26, 2006, at around 3:20 in the afternoon, Spencer entered the Jiffy Lube automobile service center located on Baltimore National Pike. He walked up to the cashier, a man named Tyrone Stinnette, and stated: "Don't say nothing." At Spencer's trial before the Circuit Court for Baltimore County, Mr. Stinnette testified as follows: State's Attorney: "[D]o you recall something out of the ordinary occurring during that day? "Yeah. We got robbed. "When you say `you got robbed,' explain where you were and what exactly in your mind you saw happen? "I was ringing up customers and got robbed.

Stinnette: State's Attorney:

Stinnette:

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State's Attorney:

"Again you said you were robbed. What was done? When you say `robbed,' explain what you mean by `robbed'? "Money was took. "How was it taken from you? Were you working the register? "Yes." ***

Stinnette: State's Attorney:

Stinnette:

State's Attorney:

"What did Mr. Spencer say or do when he walked up to you? "He said, `Don't say nothing.' Once he say that, I knew what was going on. "Did he point anything at you or imply anything? "No. "Did you believe he had a weapon at that time? "I wasn't taking no chances. "You said you weren't taking no chances. What did you do when he said that? "I handed him the cash register drawer."

Stinnette:

State's Attorney: Stinnette: State's Attorney: Stinnette: State's Attorney:

Stinnette:

Stinnette testified that after he handed the cash register drawer to Spencer, Spencer "just left." Stinnette also testified that another man had accompanied Spencer into the shop and that the other man simply "sat in the lounge" and left after Stinnette had handed the cash register drawer to Spencer. Stinnette did not call the police and, when asked by the State's Attorney if he attempted to "persuade the individual, chase him or anything," Stinnette replied that he did not. Stinnette's testimony concluded with the

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following exchange: State's Attorney: "Mr. Stinnette, after the individual left the location, can you explain to Judge Daniels how you felt when you first came in that day? How did you feel when he did that to you, when he approached the counter? "Like I said, I wasn't taking no chances."

Stinnette:

The record does not include any description of the Spencer's clothing on the day of the incident, and the only physical description of the petitioner included in the record is Stinnette's recollection that the petitioner was "five nine" and "had a tear drop [tattoo] underneath his eye." As earlier mentioned, Spencer was charged with robbery, theft over $500, and second degree assault. After the nonjury trial, he was found guilty of robbery and the theft and assault convictions were, for the purposes of sentencing, merged with the robbery conviction. Although the robbery statute provides that the penalty shall not exceed 15 years, Spencer was sentenced to 25 years without parole as a subsequent violent offender with two previous robbery convictions. See Maryland Code (2002, 2011 Supp.),

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