Argued: November 3, 2017
Court for Montgomery County Case No. 126409C
Greene, Adkins, McDonald, Watts, Hotten, Getty, Harrell,
Glenn T., Jr. (Senior Judge, Specially Assigned) JJ.
asked in this case to review the definition of second degree
assault. Specifically, the question this case presents is
whether the revised and consolidated assault statute,
contained in Section 3-201(b) of the Criminal Law Article of
the Maryland Code (2002, 2012 Repl. Vol.), contemplates
different crimes, or whether the acts constitute second
degree assault. Petitioner Barrington Dean Watts was
convicted in the Circuit Court for Montgomery County of two
counts of first degree assault. Over Petitioner's
objection, the jury heard instructions on two different
variations of second degree assault, battery and intent to
frighten, but was not instructed to reach a unanimous
decision about which iteration occurred here. Petitioner
appealed his convictions to the Court of Special Appeals,
which affirmed in an unreported opinion. First, we determine
that the objection made by Petitioner preserved the issue of
whether the jury should hear a unanimity instruction after
hearing instructions for both forms of assault. We next
determine that the assault statute contemplates different
modalities of committing the singular crime of second degree
assault as opposed to different crimes. Thus, we affirm the
judgment of the Court of Special Appeals.
on the evidence at trial, the jury could have found that on
November 9, 2014, Petitioner, Barrington Dean Watts, entered
the apartment of Lavasha Harding, pointed a gun at one of the
occupants of the apartment, Andre French, and demanded money.
An altercation transpired, during which Petitioner fired
three shots. One bullet struck a different occupant, Antonio
Woods. After a brief struggle, one of the men involved gained
possession of the gun and then detained Petitioner until the
police arrived shortly thereafter. Petitioner was charged
with seven crimes,  including two counts of first degree
the trial judge instructed the jury, the prosecutor and
Petitioner's counsel reviewed the jury instructions with
the judge. During those discussions, Petitioner's counsel
objected to the State's request for instructions on
accomplice liability, conspiracy, and a special instruction
related to the castle doctrine. Thereafter, the trial judge
instructed the jury on the law, particularly as it pertained
to second degree assault:
Second degree assault. There are two ways that you can commit
a second degree assault. One is, intent to frighten. Assault
is intentionally frightening another person with the threat
of immediate offensive physical contact or physical harm. In
order to convict the defendant of assault, the State must
prove, number one, that the defendant committed an act with
the intent to place Andre French and/or Antonio Woods in fear
of immediate offensive physical contact or physical harm.
That the defendant had the apparent ability at that time to
bring about the offensive physical contact or physical harm.
And three, that Andre French and/or Antonio Woods reasonably
feared immediate offensive physical contact or physical harm
and that the defendant's actions were not legally
Battery. Assault is also causing offensive physical contact
to another person. In order to convict the defendant of
assault under [a] battery theory, the State must prove that
the defendant caused offensive physical contact or physical
harm to Andre French and/or Antonio Woods. That the contact
[was] the result of an intentional or reckless act of the
defendant and was not accidental. And three, that the contact
was not consented to by Andre French and/or Antonio
conclusion of the reading of the jury instructions, the judge
called the attorneys to the bench and asked if they took
"any exception to the court." The prosecutor took
no exceptions. Petitioner's attorney renewed the previous
objections as well as noted a new exception to the assault
instruction, and the following exchange occurred:
[DEFENSE COUNSEL]: The defense would now like to reiterate
our previous objections and object to the alternative
instruction on assault and that it's possible that six
jurors could go with one theory, six could go with another,
and there would not be a unanimous verdict for him.
THE COURT: Six could go with one and six could go with the
[DEFENSE COUNSEL]: Or some other division of jurors.
THE COURT: Okay. All right. Thank you.
[DEFENSE COUNSEL]: Thank you, Your Honor.
THE COURT: Exceptions noted.
deliberations, the jury found Petitioner guilty of two counts
of first degree assault as well as the remaining counts
appealed his conviction and sentence to the Court of Special
Appeals. In an unreported opinion, the Court of Special
Appeals affirmed the Circuit Court. We granted
certiorari on the following question, slightly
rephrased from the question submitted to this Court:
Watts v. State, 453 Md. 358, 162 A.3d 838 (2017).
Additionally, the State filed a conditional cross-petition,
presenting us with the following question:
Is Watts's claim of error unpreserved where Watts did not
ask for the unanimity instruction he now claims was
Id. Because we determine that the jury instruction
issue was preserved, we reach the substance of the assault
threshold issue we must address is whether Petitioner has
preserved for our review the alleged jury instruction error.
The State contends that Petitioner's claim of error with
the jury instructions issued by the trial judge was not
raised at trial. The State points to the record as evidence
that Petitioner never requested a curative instruction.
submits that his counsel's discussion during the bench
conference was sufficient to preserve an objection to the
alleged error. After the trial judge had instructed the jury,
Petitioner's counsel explained at a bench conference that
the jury could possibly split its decision with regard to the
assault crime, with half of the jury believing that
Petitioner had committed a battery and the other ...