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HEADNOTE: Stevenson v. State, No. 106, September Term, 2010

CRIMINAL LAW; CONSPIRACY TO COMMIT ATTEMPTED ARMED ROBBERY: As Sec. 3-403 of the Criminal Law Article proscribes both the commission of an armed robbery and the attempt to commit that offense, conspiracy to attempt an armed robbery is a cognizable crime in Maryland.

IN THE COURT OF APPEALS OF MARYLAND No. 106 September Term, 2010

TERRY SHAWN STEVENSON v. STATE OF MARYLAND

Bell, C.J. Harrell Battaglia Greene *Murphy Adkins Barbera, JJ.

Opinion by Murphy, J. Chief Judge Bell and Judge Greene join in the judgment only.

Filed:

October 27, 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.

In the Circuit Court for Somerset County, a jury convicted Terry Shawn Stevenson, Petitioner, of conspiracy to commit attempted armed robbery, and reckless endangerment. In an unreported opinion, the Court of Special Appeals affirmed the judgment entered on the conspiracy conviction, and reversed Petitioner's conviction for reckless endangerment. He then filed a petition for writ of certiorari in which he presented a single question for our review: Is conspiracy to commit attempted armed robbery, a doubly inchoate crime, a cognizable offense? We granted the petition. 417 Md. 384, 10 A.3d 199 (2010). For the reasons that follow, we shall answer "yes" to this question, and therefore affirm the judgment of the Court of Special Appeals. Background The State's evidence was sufficient to establish that on October 29, 2007, Petitioner - - acting in concert with Adam Holland, Jerrell McNeely, and Joseph McCoy - - made an unsuccessful attempt to rob one Kevin Williams. As a result of this botched attempted robbery, the Somerset County Grand Jury returned a six count indictment against Petitioner,1 charging him with attempted robbery with a dangerous weapon and

The second count charged the crime of reckless endangerment, and the sixth count charged that Petitioner "did participate in a criminal gang knowing that the members of the gang engage in an ongoing pattern of criminal gang activity in violation of CR 9-804 of the Annotated Code of Maryland[.]" Prior to trial, the State entered a nolle prosequi on count six.
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related offenses. The following counts of that indictment are of consequence to the issue before us: STATE OF MARYLAND, SOMERSET COUNTY, TO WIT: [FIRST COUNT] The Jurors for the County of Somerset and the State of Maryland inform and charge that Terry Shawn Stevenson on or about the 29th day of October in the year two thousand seven, did unlawfully and feloniously, with a dangerous weapon, attempt to rob Kevin Williams, in violation of CR 3403 of the Annotated Code of Maryland, contrary to the form of the Act of Assembly in such case made and provided and against the peace, government and dignity of the State. (ATT- ARMED ROBBERY CR Sec. 3-403). *** THIRD COUNT And the Jurors for the County of Somerset and the State of Maryland, inform and charge that Terry Shawn Stevenson on said day, did conspire with Adam Holland to unlawfully and feloniously, with a dangerous weapon attempt to rob Kevin Williams in violation of the CR 3-403 of the Annotated Code of Maryland, contrary to the form of the Act of Assembly in such case made and provided against the peace, government and dignity of the State. (ATT-ARMED ROBBERY CR Sec. 3-403) FOURTH COUNT And the Jurors for the County of Somerset and the State of Maryland, inform and charge that Terry Shawn Stevenson on said day, did conspire with Jerrell McNeely to unlawfully and feloniously, with a dangerous weapon attempt to rob Kevin Williams in violation of the CR 3-403 of the Annotated Code of Maryland, contrary to the form of the Act of Assembly in such case made and provided against the
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peace, government and dignity of the State. (ATT-ARMED ROBBERY CR Sec. 3-403) FIFTH COUNT And the Jurors for the County of Somerset and the State of Maryland, inform and charge that Terry Shawn Stevenson on said day, did conspire with Joseph McCoy to unlawfully and feloniously, with a dangerous weapon attempt to rob Kevin Williams in violation of the CR 3-403 of the Annotated Code of Maryland, contrary to the form of the Act of Assembly in such case made and provided against the peace, government and dignity of the State. (ATT-ARMED ROBBERY CR Sec. 3-403) The jury was provided with a VERDICT SHEET on which it returned the following verdicts: VERDICT SHEET [COUNT 1] Attempted Armed Robbery Guilty Not Guilty X _______

[COUNT 2] Reckless Endangerment Guilty Not Guilty [COUNT 3] Conspiracy- Attempted Armed Robbery (with Adam Holland) Guilty Not Guilty [COUNT 4] Conspiracy- Attempted Armed
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X

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Robbery (with Joseph McCoy) Guilty Not Guilty [COUNT 5] Conspiracy- Attempted Armed Robbery (with Jerrell McNeely) Guilty Not Guilty The Circuit Court merged the conspiracy counts "for the purposes of sentencing" and imposed the following sentence: [F]or the purposes of sentencing the court is going to merge counts three, four and five, and . . . will sentence as to count number 3[.] . . . [T]he sentence as to count three will be that [the Petitioner] will serve 15 years in the custody of the Commissioner of Corrections and I'll date that sentence from the date he was first incarcerated. As stated above, the Court of Special Appeals reversed Petitioner's reckless endangerment conviction, but affirmed the judgment of conviction for conspiracy to commit attempted robbery with a dangerous weapon. Discussion Petitioner (in the words of his cert. petition) argues: Logically, one simply does not conspire to attempt, one conspires to do. A doubly inchoate crime defies logic and should not be subject to punishment. [Therefore]... this Court [should hold] that conspiracy to attempt, a doubly inchoate crime, is not a cognizable offense. In Townes v. State, 314 Md. 71, 548 A.2d 832 (1988), while holding that
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X

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"conspiracy to attempt to obtain money . . . by false pretenses" was "a cognizable crime," this Court stated: Townes argues that people ordinarily do not conspire merely to attempt to commit a crime, and therefore the law does not recognize as a crime a conspiracy to attempt to commit a criminal offense. *** If we mechanically assemble the building blocks of the crime of conspiracy in the context of this case, it would seem that the crime of conspiracy to attempt to commit the crime of obtaining money by false pretenses fits the established mold. Obtaining money by false pretenses is a crime. Attempting to obtain money by false pretenses is a separate, self-standing crime. Accordingly, if a criminal conspiracy consists of an agreement to commit a crime, and an attempt to obtain money by false pretenses is a crime, it follows that the crime of conspiracy to attempt to obtain money by false pretenses fits the legal definition of conspiracy. Townes' argument is directed not to the question of literal compliance with the mechanical requirements of the offense of conspiracy, but to the logical consequences of assembling the component parts into this particular final product. He says that persons who conspire to commit a crime intend to complete that crime, and not to stop short of completion. Therefore, he argues, it is logically inconsistent to charge one with conspiracy merely to attempt a crime. *** In Lightfoot [v. State, 278 Md. 231, 236-237, 360 A.2d 426, 429 (1976)], we quoted with approval from R. Perkins, Criminal Law, 554 (2d ed. 1969) that "[t]he attempt is a lower grade or degree of the offense because it is a part of it. It is not something separate and distinct." ***
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The logical inconsistency postulated by Townes simply does not exist in this State. A person intending to commit a crime intends also to attempt to commit that crime. The intent to attempt is viewed as correlative to and included within the intent to consummate. Accordingly, one who conspires to commit a crime concurrently conspires to attempt to commit that crime. Id. at 74-77, 548 A.2d at 833-835. Our holding in Townes is entirely consistent with the holding in People v. Teitelbaum, 329 P.2d 157 (Cal. App. 2d Dist. 1958), in which the Court of Appeal of California, Second Appellate District, affirmed a conviction under a count in an indictment that charged the defendant with conspiracy to commit the crime of attempted grand theft, stating: Appellant further charges that the court erred in defining "attempt" and instructing the jury that a person who conspires to commit grand theft is guilty of a crime, and that a person who conspires to attempt grand theft, is guilty of a crime. Appellant asserts that there is no such crime as conspiracy to attempt grand theft. We do not agree. A conspiracy to commit grand theft is inherently one to attempt that crime. If the conspirators are successful in accomplishing the object of the conspiracy, they have committed grand theft. If they are not successful, they have committed the crime of attempted grand theft. Id. at 180. Federal appellate courts have consistently held that, "if a separate federal statute specifically proscribes [the crime of] attempt, it is an offense against the United States and therefore an appropriate object of the [federal] conspiracy statute." Ira P. Robbins, Double Inchoate Crimes, 26 Harv. J. on Legis 1, 58 (1989). Those courts have affirmed convictions for conspiracy to attempt the commission of a crime "in instances in which
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the conspiracy failed to realize an object offense for which the statutory definition of the crime prohibited both the attempt and the substantive crime." Id. at 60. Conspiracy to attempt convictions have been affirmed in cases involving botched bank robberies. Id. 18 U.S.C. 2113(a), in pertinent part, provides: (a) Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another, or obtains or attempts to obtain by extortion any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association; or Whoever enters or attempts to enter any bank, credit union, or any savings and loan association, or any building used in whole or in part as a bank, credit union, or as a savings and loan association, with intent to commit in such bank, credit union, or in such savings and loan association, or building, or part thereof, so used, any felony affecting such bank or such savings and loan association and in violation of any statute of the United States, or any larceny

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