from the Circuit Court for Wicomico County. W. Newton
BY: Allison M. Sayers (Paul B. DeWolfe, Public Defender on
the brief) all of Baltimore, MD. for APPELLANT
BY: Edward J. Kelley (Brian E. Frosh, Attorney General on the
brief) all of Baltimore, MD. for APPELLEE
BEFORE Graeff, Friedman, Moylan, Charles E., Jr. (Retired,
Specially Assigned), JJ.
Md.App. 122] Moylan, J.
appellant, Jacob Lee Chisum, was convicted in the Circuit
Court for Wicomico County by Judge W. Newton Jackson, III.,
sitting without a jury, of attempted second-degree murder,
first-degree and second-degree assault, reckless
endangerment, carrying a weapon openly, and carrying a
concealed weapon. For the attempted second-degree murder,
Judge Jackson imposed a sentence of thirty years, with all
but fifteen years suspended.
appeal, the appellant raises three contentions, each
expressly challenging the legal sufficiency of the evidence
to support one of the three guilty verdicts. The appellant
does not challenge the sufficiency of the evidence to support
the convictions for reckless endangerment, first-degree
assault, and second-degree assault. The appellant does
challenge the legal sufficiency of the evidence to support
the convictions for both carrying a weapon openly and
carrying a concealed weapon and, most significantly, to
support the conviction for attempted second-degree murder.
That is the flagship contention of this appeal.
Precise Issue of Legal Sufficiency
prepare to address that flagship contention, let it be clear
that we are not going to indulge the appellant in
manufacturing a law school examination hypothetical of error
[227 Md.App. 123] where in the real-life trial before us, no
such error occurred. We will require of the appellant,
moreover, the same meticulous precision in the framing of his
primary contention that he would demand of the trial judge in
explaining his verdict. Appellants themselves should not be
lax in challenging laxity. The appellant's primary
contention is unambiguous:
" The evidence was insufficient to convict Mr. Chisum of
attempted second degree murder."
issue there framed is unequivocally the legal sufficiency of
the evidence to permit a conviction for attempted
second-degree murder. What must be found to be sufficient,
moreover, is not the ostensible fact-finding of the trial
judge, as argued for by the appellant, but the sufficiency of
the evidence itself.
Factual Background, Briefly
evening of September 27, 2014, was a festive one in Salisbury
as William " Dirty" Ayers invited seven or eight of
his friends to join him in the shed behind his Mother's
home for what he described as some " typical friendly
banter among friends that evening with a lot of
drinking." As the festivities progressed, he
characterized his own condition as " wasted." Among
the celebrants were the appellant and the ultimate stabbing
victim, Wayne Handy. The " typical friendly banter"
turned to the fine points of high couture, as the appellant
and Handy clashed over which of the two of them had the
" fliest" (loosely translated by Handy as "
the best" ) clothes and shoes.
host, Ayers, had his back to the disputants when he heard
" a whole bunch of ruckus" behind him with Handy
suddenly announcing, " Oh, man, he got me." As
Ayers turned to look, he saw " blood everywhere"
and Handy, bent over, holding his abdomen and bleeding. The
appellant was standing in the doorway of the shed, with a
knife in his hand.
point, the party broke up. Handy, still bleeding, ran across
the street. The appellant ran and jumped into his car. Ayers
followed the appellant to his car and manifested his
displeasure by throwing first a bicycle and then a chair at
[227 Md.App. 124] his troublesome guest. In the meantime,
someone had called the police. Ayers then ran to assist
Handy, who was at that point lying in the yard and bleeding.
Handy who, as a witness, described how, as the conversation
between him and the appellant about clothes and shoes grew
more heated, the appellant left the conversation " for a
split second" and then came back. Handy heard the "
open click of a knife" and instantly felt the pain of
being stabbed. There was a single stab wound to the stomach
area. Handy was transported to the hospital where he
underwent surgery. He had suffered a laceration of the liver.
Shortly after fleeing the scene, the appellant was
apprehended at the scene of a traffic stop. A search of the
car revealed a fixed blade knife in a sheath in the
driver's seat pocket.
Burden of Production: The 66-Year History of the Legal
behooves us initially to focus on precisely what the
appellant's contention about the legal sufficiency of the
evidence entails or, more dispositively, on what it does not
entail. Our ultimate holding will be framed exclusively in
response to the appellant's challenge to the legal
sufficiency of the evidence to support the attempted murder
verdict. It behooves us to demarcate clearly what an
examination of the legal sufficiency of the evidence entails,
and what it does not entail. It is a precise contention and
not a broad umbrella.
jury trial, the scope of the legal sufficiency issue is
clear. Maryland Rule of Procedure 4-324 requires an appellate
court to review the legal sufficiency of the evidence if, at
the close of all of the evidence, a timely motion for a
judgment of acquittal has been made by the defendant. Brooks
v. State, 299 Md. 146, 150, 472 A.2d 981 (1984) (" In
determining the disposition of a motion for judgment of
acquittal ..., the trial court is passing upon the
sufficiency of the evidence to sustain a conviction." ).
Absent such a motion, no review of the legal sufficiency of
the evidence is even permitted. As Judge Kenney explained for
this Court in Whiting v. State, 160 Md.App. 285,
308, 863 A.2d 1017 (2004):
[227 Md.App. 125] " Rule 4-324(a) requires that, as a
prerequisite for appellate review of the sufficiency of the
evidence, appellant move for a judgment of acquittal,
specifying the grounds for the motion."
See also Graham v. State, 325 Md. 398, 416-17, 601
A.2d 131 (1992); Bates v. State, 127 Md.App. 678,
691, 736 A.2d 407 (1999).
dealing with the issue of legal sufficiency in a jury trial,
we are dealing only with the satisfaction of the burden of
production. Was the evidence sufficient, as a matter of law,
to permit the judge to submit the case to the jury for its
decision? We are not at all concerned with how the factfinder
arrived at the verdict, the logic or illogic of the
factfinder's reasoning, but only with the naked verdict
itself. How the factfinding jury rendered its verdict may, to
be sure, be a critical issue. We are not for a moment
suggesting otherwise. It would be nonetheless an issue
separate and distinct from the issue of whether the State has
satisfied its burden of production by producing legally
sufficient evidence to permit a verdict of guilty.
case now before us, we are dealing with a court trial and not
with a jury trial. The factfinder was a judge and not a jury
of 12 persons whose decisional processes are forever both
beyond our ken and beyond our authority to review. The
question becomes one of whether appellate review of the
evidence is broader in a bench trial than it is in a jury
trial. The reviewing authority is spelled out in Maryland
Rule 8-131(c), which provides:
" When an action has been tried without a jury, the
appellate court will review the case on both the law and
evidence. It will not set aside the judgment of the trial
court on the evidence unless clearly erroneous, and will give
due regard to the opportunity of the trial court to judge the
credibility of the witnesses."
is one big and obvious difference between the review of a
verdict on the evidence in a jury trial and in a [227 Md.App.
126] court trial. Such review of a jury's verdict is
absolutely contingent on an underlying motion for a judgment
of acquittal. Such a review on the evidence of a judge's
verdict, on the other hand, is automatic. What remains to be
seen is whether there is any further difference between the
substance of the respective reviews. The literal wording of
Rule 8-131( c) is that " the judgment of the trial
court" (the verdict) will not be set aside " on the
evidence unless clearly erroneous." (Emphasis supplied).
Is the verdict in a bench trial that is not clearly erroneous
the same, neither more nor less, than a jury verdict that is
supported by legally sufficient evidence? No question could
be more basic for an appellate court charged with reviewing
absolutely seminal analysis in this regard was made by the
five charter members of this Court in the second year of its
existence. The monumental opinion of Judge Orth in
Williams v. State, 5 Md.App. 450, 452, 247 A.2d 731,
cert. denied, 252 Md. 734 (1969), set out to examine "
the authority and function of this Court in its review of the
sufficiency of the evidence in a criminal case." The
issue was one of first impression, as the opinion pointed out
that there was no authority for an appellate court to review
the sufficiency of the
evidence in a non-jury case until January 1, 1950 and no
authority to review such sufficiency even in a jury case
until a constitutional amendment effective as of December 1,
1950. Brooks v. State, 299 Md. 146, 149, 472 A.2d
981 (1984) ( Until 1950, the Court of Appeals " had no
power to review the legal sufficiency of evidence on appeal
of a criminal case tried to a jury." ). Then as now, the
language authorizing review in a non-jury case referred to a
verdict's not being " set aside on the evidence
unless clearly erroneous" and the authorizing language
in a jury trial referred to " the sufficiency of the
evidence to sustain a conviction." 5 Md.App. at 454.
Court, then reviewing essentially nothing but criminal cases
(hence the word " Special" in its very name),
undertook its review of the legal sufficiency of evidence in
criminal cases, the inquiry was fundamental.
[227 Md.App. 127] " The question arises as to what test
is to be applied on appeal in determining the sufficiency of
the evidence (1) to sustain a conviction in a non-jury case,
and (2) to justify its submission to the jury in a jury
5 Md.App. at 456. (Emphasis supplied).
Orth's opinion made it clear that in a jury trial and a
court trial alike, we are measuring a verdict against the
supporting evidence itself and not looking at what a judge
might say in rendering the verdict.
" Once the question of the sufficiency of the evidence
is properly before us, we believe that the criteria used to
determine the question is the same, be the verdict rendered
by the court or a jury."
5 Md.App. at 458-59 (emphasis supplied).
issue of legal sufficiency is precisely the same under either
trial modality. In a court trial just as in a jury trial, the
issue is the satisfaction of the burden of production.
" We think that whether the question comes before us as
a contention that the trial court was clearly wrong in
reaching a verdict of guilty on the evidence or as a
contention that the evidence was insufficient in law so as to
preclude it from being submitted to the jury, the test is
whether the evidence either shows directly or supports a
rational inference of the facts to be proved, from which the
trier of fact could fairly be convinced, beyond a reasonable
doubt, of the defendant's guilt of the offense charged.
If there was such evidence, the lower court would neither be