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In re Kevin T.

Court of Special Appeals of Maryland

April 30, 2015

IN RE: KEVIN T.

Leahy, Reed, Eyler, James R. (Retired, Specially Assigned), JJ.

OPINION

Eyler, James R., J.

The Circuit Court for Prince George's County, sitting as a juvenile court, found appellant, Kevin T.[1] to be involved in the delinquent acts of second-degree assault and participation in a criminal gang. Appellant was committed to "Level B" placement. A timely appeal was filed, in which appellant presents the following questions for our review:

1. Did the juvenile court err in permitting testimony by Officer Daniel Lewis that after Kevin T. was taken into custody he "refused to make a statement"?
2. Was the evidence insufficient to sustain Kevin T.'s conviction for participation in a criminal gang under § 9-804(a) of the Criminal Law Article?

For the reasons that follow, we shall answer (1) yes to the first question, but conclude that any error was harmless, and (2) yes to the second question. Accordingly, we shall reverse, in part, the judgments of the circuit court.

BACKGROUND

In 2013, Austin R. was a student at High Point High School in Prince George's County. Austin testified that, in April of 2013, appellant tried to fight him at school because of "run ins" that Austin previously had with the gang known as MS-13. On August 19, 2013, Austin was called into the security office of the school. He was warned that members of MS-13 were planning to fight him. Later that day, appellant, who was accompanied by Michael C. and Darwin M., followed Austin on his way to class and yelled "Salvatrucha." Austin responded "I don't give an F who you are, " and continued walking to class.

Appellant, Michael and Darwin continued to follow Austin. Austin testified that all three wanted to fight him, "one on one." Michael said, "Let's fight, " and threw a punch at Austin, but missed. Austin then "just went at it" and began to pummel Michael, hitting him at least 25 times. Michael continued to fight back. According to Austin, appellant and Darwin "noticed that [Michael] was getting seriously beat" by Austin, and "jumped in" to the fight, trying to grab Austin and throw him to the ground. Austin testified that he threw appellant and Darwin off him and to the ground. School security then broke up the fight, and everyone was taken into a security office.

Sergeant George Norris, who was called as the State's expert on MS-13 gangs in the Maryland area, explained that MS-13 stands for Mara Salvatrucha, and that the goal of MS-13 is to be "the most powerful or most controlling gang" in the community. Sergeant Norris testified that the members of MS-13 achieve this goal "through fear, intimidation and violence." He explained that MS-13 members shout out their gang name to announce who they are and intimidate others. Sergeant Norris stated that Michael C. and Darwin M. were members or associates of MS-13, and that appellant was "at the least associated with MS-13."

Michael C. was called as a witness for the defense. He testified that he was involved in a fight with Austin on August 19, 2013, but that Austin initiated the fight, and no one else was involved. He denied being a member of a gang, and denied having friends that are members of MS-13. He stated that he did not believe that appellant was involved in any gang activity.

Additional facts will be introduced in the discussion as they become relevant.

DISCUSSION

1. Refusal to Make Statement


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