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Counts v. State

Court of Appeals of Maryland

July 27, 2015

DERRICK ARTHUR COUNTS
v.
STATE OF MARYLAND

Argued: April 9, 2015

Circuit Court for Howard County Case No. 13-K-12-51963

Barbera, C.J., [*] Harrell, Battaglia, Greene, Adkins, McDonald, Watts JJ.

OPINION

BARBERA, C.J.

Maryland's consolidated theft statute creates the single statutory crime of theft, demarcating the seriousness of the offense based on the value of the goods stolen. It is a misdemeanor to steal "property or services with a value of less than $1, 000." It is the lowest grade of three increasingly serious forms of felony theft to steal "property or services with a value of [] at least $1, 000 but less than $10, 000 . . . ." Md. Code Ann., Crim. Law (2012 Repl. Vol.) § 7-104. We decide in this case whether an amendment that raises the value of the stolen property from "less than $1, 000" to "at least $1, 000 but less than $10, 000, " changes the character of the offense and, if it does, whether the trial court erred in permitting the amendment of the charging document, over the defendant's objection. We hold that the answer to both parts of that question is "yes, " requiring that we reverse the judgment of the Court of Special Appeals.

I.

Derrick Counts, Petitioner, was arrested in connection with the burglary of an apartment in Columbia, Maryland, during which a number of items, including a 46-inch television, a laptop computer, a gaming system, video games, and a vacuum cleaner, were stolen. An eyewitness provided to the police the license plate of the car used in the burglary. The police investigated the license plate and found that the car had been rented by the wife of Petitioner. While executing a warrant to search the home of Petitioner's wife, the police found Petitioner's identification card and the stolen vacuum cleaner. Petitioner was later arrested.

The State charged Petitioner in a five-count indictment with burglary and related crimes. Relevant here, Count Four charged that Petitioner "did steal property of [the victims] having a value of less than $1, 000 . . . ."[1]

On the morning of trial in the Circuit Court for Howard County, as the parties were waiting for the jury panel to be brought into the courtroom, the prosecutor informed the court that the prosecutor had a "minor housekeeping measure." Due to a "typographical error[, ]" the prosecutor asked the court to amend Count Four from theft of "less than a thousand[]" to "theft of at least a thousand but less than [$]10, 000." Defense counsel objected, noting that the amendment changed the offense from a misdemeanor to a felony, and changed the possible incarceration from 18 months to ten years of imprisonment. The State responded that "[t]he elements are the same. It's just a penalty [that changed], so I don't think it's a substantive change. The Defense is not prejudiced by the matter of proof that we will be presenting. It's just if there is a conviction, it changes the range of penalties." The court allowed the amendment to the indictment, and the case proceeded to trial.

At trial, Petitioner's accomplice testified that Petitioner had asked for his assistance in carrying the items to the car. He then drove with Petitioner into Washington, D.C., where they sold the items to another person. The accomplice testified that Petitioner gave him half of the proceeds from the sale-about $600. The jury found Petitioner not guilty of first degree burglary, but guilty of fourth degree burglary, theft of goods having a value of at least $1, 000, and theft of goods valued under $100.

On appeal to the Court of Special Appeals, Petitioner raised the single contention that the trial court had erred in permitting the amendment of Count Four. The intermediate appellate court, in an unreported opinion, affirmed the judgment of conviction. We issued a writ of certiorari to review the judgment of the Court of Special Appeals.

II.

The ultimate issue in this case is whether the trial court erred in permitting the State, over Petitioner's objection, to amend Count Four of the charging document by substituting theft of property "with a value of at least $1000 but less than $10, 000" for "theft of property with a value of less than $1000." Amendment of a charging document is governed by Maryland Rule 4-204, which states:

On motion of a party or on its own initiative, the court at any time before verdict may permit a charging document to be amended except that if the amendment changes the character of the offense charged, the consent of the parties is required. If amendment of a charging document reasonably so ...

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