Court for Charles County Case No. 08-K-16-000014
Friedman, Beachley, Moylan, Charles E., Jr. (Senior Judge,
Specially Assigned), JJ.
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
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
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
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.
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.
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.
rephrased the appellate challenge as essentially the two
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.
Find Nothing Is To Discover Something
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
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
(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.
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.
Kelly Spoke For Himself
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.
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
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
[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?
DETECTIVE KELLY: Yes.
[PROSECUTOR]: Alright, were you there with this desk
DETECTIVE KELLY: Yes.
[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?
DETECTIVE KELLY: Yes.
[PROSECUTOR]: Okay, and was the search that you requested and
there with, was that of North Carolina?
DETECTIVE KELLY: Yes.
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.
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
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?
DETECTIVE KELLY: No.
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.
Quintessence Of Harmlessness
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 ...