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Geiger v. State

Court of Special Appeals of Maryland

December 5, 2017


         Circuit Court for Charles County Case No. 08-K-16-000014

          Friedman, Beachley, Moylan, Charles E., Jr. (Senior Judge, Specially Assigned), JJ.


          MOYLAN, JUDGE.

         This is a simple case of theft by deception. At least, it should have been simple. The appellant, Lamont Jeffery Geiger, was convicted in the Circuit Court for Charles County by Judge Amy J. Bragunier, sitting without a jury, of theft pursuant to Maryland Code, Criminal Law Article, Sect. 7-104. For penalty purposes, it was a theft of property with a value of at least $1, 000 but less than $10, 000, pursuant to subsection 7-104(g)(i). The actus reus of the crime poses no problem. The problem is that of establishing criminal agency.

         The Basic Crime

         On June 23, 2015, Leanne Ayers, an employee of Southern Tire in Waldorf, received a telephone call from an individual, giving his name as Brian Johnson, requesting the purchase of four Continental tires. The caller gave a credit card number over the phone and used it to charge an $85 deposit for the tires, which were to be installed the following day. On the next day, June 24, the ostensible Mr. Johnson came in and had the four tires installed on his car. After the work was completed, the purchaser used the same card number used the day before to charge the remaining balance of $939.53. Because "Mr. Johnson" did not have a physical credit card on hand, he showed his ostensible North Carolina driver's license as identifying security. Ms. Ayers took and kept a photograph of that North Carolina driver's license.

         At the appellant's trial on September 8, 2016, Ms. Ayers identified the appellant as the ostensible Brian Johnson who purchased the tires from her on June 24, 2015. On cross-examination, she attested that her identification was one made with 99% certainty. It is not now challenged. It is only disparaged.

         The State's second witness was Tiro Joson, who worked in the Accounts Receivable section for Southern Tire. He testified that on July 15, 2015 he received notice from the credit card company that the company was issuing a "charge back" against Southern Tire for the $1024.53 on the credit charges of June 23 and 24, 2015. The credit card number had been fraudulently used. Southern Tire immediately notified the police.

         At the trial on September 8, 2016, the State also introduced, in addition to Ms. Ayers's identification of the appellant, a copy of the Maryland driver's license issued to the appellant in his proper name of Lamont Jeffery Geiger and showing his photograph. It had also introduced a copy of the ostensible North Carolina driver's license bearing the name of Brian Johnson but showing a photograph of the appellant. Judge Bragunier found as a fact that the picture of "Brian Johnson" on the North Carolina license and the picture of Lamont Jeffery Geiger on the Maryland license depicted the same man, to wit, the appellant.

         On the merits, it is not without significance that the appellant did not testify and that he offered neither any witnesses nor other evidence in his defense. Judge Bragunier did not hesitate in finding that the appellant was the criminal agent in this theft of property. The case was open and shut.

         The Contentions

         We have rephrased the appellate challenge as essentially the two contentions

1. that the State used inadmissible hearsay evidence in establishing that there was no legitimate North Carolina driver's license issued to a Brian Johnson; and
2. that the State used inadmissible hearsay evidence in proving that a facial recognition analysis had identified the face on the North Carolina driver's license as that of the appellant, thereby revealing the appellant's name.

         To Find Nothing Is To Discover Something

         The obvious first investigative step for Detective Matthew Kelly was to attempt to locate the "Brian Johnson" listed on the North Carolina driver's license. Ms. Ayers informed him that the picture on the license was that of the man who had purchased the tires. Accordingly, Detective Kelly presented the information on the ostensible North Carolina driver's license to the desk clerk at the Charles County Sheriff's Office. As a regular investigative resource, the Sheriff's Office has access to the databases kept by the motor vehicle administrations of various states, including that of North Carolina. With Detective Kelly looking on and supplying information, the clerk searched the North Carolina database. There had been no driver's license issued in North Carolina for a Brian Johnson with the birthdate listed on the license. The license was a fake and a theft by deception had obviously been perpetrated on Southern Tire.

         The appellant's first contention grasps at straws. In the first place, he characterizes the negative information obtained from the database as inadmissible hearsay. It is not that. Maryland Rule of Procedure 5-803(b)(10) is very clear that among those things "not excluded by the hearsay rule, even though the declarant is available as a witness" is:

(10) Absence of Public Record or Entry. Unless the circumstances indicate a lack of trustworthiness, evidence in the form of testimony or a certification in accordance with Rule 5-902 that a diligent search has failed to disclose a record, report, statement, or data compilation made by a public agency, or an entry therein, when offered to prove the absence of such a record or entry or the nonoccurrence or nonexistence of a matter about which a record was regularly made and preserved by the public agency.

(Emphasis supplied).

         The search of a database which reveals the absence of a particular record is an event to which the searcher may testify directly. The testimony "I searched and found nothing" does not involve inadmissible hearsay. It is a recognized exception to the Rule Against Hearsay.

         Detective Kelly Spoke For Himself

         The appellant next tries a variation on that theme. He poses a trial scenario that Judge Bragunier did not buy and that we do not buy. The appellant insists that the search of the North Carolina database was conducted not by Detective Kelly, even in part, but by the anonymous desk clerk at the Charles County Sheriff's Department exclusively. The appellant insists that the anonymous desk clerk, as an out-of-court declarant, simply reported to Detective Kelly that the search of the North Carolina database revealed no record of a Brian Johnson and that that assertion, therefore, was the sole source of Detective Kelly's knowledge. The appellant's contention is that Detective Kelly later offered that out-of-court assertion by the desk clerk in court for the truth of the matter asserted. That, of course, would be hearsay.

         As the appellant spins the story, Detective Kelly could well have been in another room. He was not. What the appellant is disinclined to accept is that the search of a database need not be a solo performance. Two or more might participate in a joint search. In a case of doubt, how many might qualify for having participated in a given search might be an issue of fact to be determined by the factfinder on the basis of the totality of the pertinent circumstances. Judge Bragunier found as a matter of fact that Detective Kelly jointly participated with the anonymous desk clerk in the search of the North Carolina database and that he was, therefore, fully competent to testify about it. That finding was not clearly erroneous.

         As Detective Kelly began to testify about the search of the database, appellant's counsel said that he was "going to object if there is no personal knowledge, if it's the desk clerk." Judge Bragunier asked the prosecutor to "just clear that up." The prosecutor did so.

[PROSECUTOR]: Now, Detective Kelly, first, let's . . . let's back up. This is the desk clerk in the Charles County Sheriff's Office station?
DETECTIVE KELLY: That is correct.
[PROSECUTOR]: Okay, and the system . . . were you present at that time?
[PROSECUTOR]: Alright, were you there with this desk clerk?
[PROSECUTOR]: Okay, and can you describe what specifically was being done?
DETECTIVE KELLY: Um . . . their computer system is a little bit different than ours, but generally if we ever have a request, we'll stand with them at the front desk and just explain what it is that we need checked. The information, we'll provide that to them, and they will conduct the check and explain any findings that they have as a result of that search.
[PROSECUTOR]: Okay, and this is done . . . you were . . . you were seeing the results of the search?
DETECTIVE KELLY: Yeah, I was standing with the individual at the front desk. I was not monitoring every single move that they made, but I stood with them.
[PROSECUTOR]: Okay, okay, and this system . . . this is a system that the Charles County Sheriff's Office has, where the desk clerk was --
DETECTIVE KELLY: One of the systems they utilize, yes.
[PROSECUTOR]: And does it access . . . um . . . department, or vehicles, or MVA of different states?
[PROSECUTOR]: Okay, and was the search that you requested and there with, was that of North Carolina?

(Emphasis supplied).

         The appellant again objected, attempting to analogize the relationship between the anonymous clerk and Detective Kelly to the relationship between the doctor who performs an autopsy and a mere observer of the autopsy. The appellant again ignored the fact that Detective Kelly and the clerk both participated in the search of the North Carolina database. The clerk's fingers may have touched the keys on the keyboard, but it was the information dictated by Detective Kelly that guided the fingers on the keyboard and that guided the inquiry. Detective Kelly testified as to what he did, what he saw, and what he knew. He was no mere conduit for the anonymous clerk. Judge Bragunier agreed:

JUDGE BRAGUNIER: Well, he can testify as to what he asked her to do, and what she did, and what [he] saw.

(Emphasis supplied).

         Detective Kelly was the indisputable source of the information that guided that search.

JUDGE BRAGUNIER: I'm going to allow him to say what he was looking for, what he . . . and what was part of the investigation.
[DEFENSE COUNSEL]: Right, but the issue is, Your Honor, they're looking for something that is done out of state in North Carolina, you know?
JUDGE BRAGUNIER: Okay, it's part of their investigative tools. I'm going to allow it.
[PROSECUTOR]: And so there was a search made of . . . of what?
DETECTIVE KELLY: The copy of the North Carolina driver's license that I was provided.
[PROSECUTOR]: Okay . . . um . . . I am giving you back [the license]. Is that what you used in your search?
DETECTIVE KELLY: That is correct.
[PROSECUTOR]: Okay . . . um . . . what specifically?
DETECTIVE KELLY: Um . . . I would have provided the front desk . . . um . . . clerk the name and the birth date of the individual, the state in which it was numbered, which is indicated near the top right side of the driver's license.

(Emphasis supplied).

         Judge Bragunier ruled that Detective Kelly was no stranger to the search of the North Carolina database and that he was competent to testify as to its negative result.

[PROSECUTOR]: And were you able to confirm or get a return on Brian Johnson, the individual . . . um . . . in the ID copy on State's Exhibit Five?

(Emphasis supplied).

         Our holding that no error was committed by Judge Bragunier is reinforced by the fact that evidentiary rulings such as this are regularly entrusted to the wide, wide discretion of the trial judge. When what is involved is a judgment call on the field, appellate courts are routinely extremely deferential.

         The Quintessence Of Harmlessness

         Even if, purely arguendo, we were to assume that error had somehow occurred, it would be hard to conceive of an error more harmless than this. Legally sufficient proof of the fraudulent deception that the appellant practiced on Southern Tire in furtherance of his theft of four automobile tires worth over $1, 000 did not in the remotest way depend on the search of the North Carolina database. The false driver's license that the appellant gave to Leanne Ayers at Southern Tire ipso facto established the appellant's larcenous deception beyond any reasonable doubt. It contained his picture on an ostensible North Carolina driver's license coupled with the palpably false name of Brian Johnson. That act of deception would be beyond challenge even if a North Carolina ...

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