Circuit Court for Baltimore City Case No. 118120008
Meredith, Gould, Moylan, Charles E., Jr. (Senior Judge,
Specially Assigned), JJ.
troubled spirit adrift on Walpurgis Night, an almost
forgotten relic of long repudiated caselaw eerily resurfaces
to haunt the convictions of the appellant, Wayne Rothe, for
second-degree and fourth-degree burglary, for the malicious
destruction of property, and for theft in the Circuit Court
for Baltimore City by a jury, presided over by Judge Althea
M. Handy. This holding should lay to rest that misbegotten
appeal, the appellant raised two contentions. He claims
1. that the State's evidence was legally insufficient to
sustain the convictions, and
2. that Judge Handy erroneously imposed separate sentences
for second-degree burglary and for the malicious destruction
Unadorned Motion For Judgment
only significant one of those contentions is that the
State's evidence was not legally sufficient to support
the convictions. We hold, on the contrary, that it was
abundantly sufficient. At the end of the State's case
(which was also the end of the entire case), the
appellant's Motion for Judgment of Acquittal was
unenlightening. The argument was baldly conclusory.
Your Honor, at this time I'll make a motion for judgment
of acquittal. I'll submit on argument, it's
really based on credibility on Mr. Dowling the way I see
THE COURT: Right.
[DEFENSE COUNSEL]: It's a circumstantial case but
it's still, you know, based on his
credibility. So I'll submit on argument other than
THE COURT: Okay. I'll deny your motion then.
Sufficient Evidence Of Guilt
word was said to substantiate that challenge to the
witness's credibility. The trial itself had been equally
uneventful. The burglary and theft victim, Michael Shawn
Dowling, lived at 2132 Maisel Street in Baltimore City. He
rented a garage at the rear of that property from his
neighbor, Joel Navarro. He regularly kept the garage locked
and he kept some valuable tools inside the garage, including
1) a large black toolbox with between $300 and $400 worth of
tools in it; 2) a pressure washer; and 3) a generator. Mr.
Dowling and the appellant were well acquainted with each
other. The appellant lived in a "pop-up camper,"
which Mr. Dowling permitted him to park in his driveway at
2132 Maisel Street.
burglary occurred on March 8, 2018, in the mid-afternoon. At
approximately 2:30 p.m., Mr. Dowling went to pick up his
daughter from school. Along the way, he saw the appellant
walking up Hollins Ferry Road. They chatted briefly. The
appellant asked Mr. Dowling where he was going. Mr. Dowling
explained that he was on his way to pick up his daughter at
school. When Mr. Dowling returned home with his daughter at
approximately 3:30 p.m., he noticed that the door to his
garage had been kicked in. The lock at the bottom was gone.
All of Mr. Dowling's tools, moreover, were missing.
testimony would have placed the burglary within the hour of
2:30 p.m. to 3:30 p.m. Actually, the time frame was tighter
than that. Detective James Frauenhoffer of the Baltimore City
Police Department was assigned to the Regional Auto Theft
Task Force. He was aware of an outstanding arrest warrant for
the appellant. On March 8, 2018, at about 3:00 p.m., he
received a phone call from someone at the Real Scrap
scrapyard, indicating that the appellant was then at that
location. Detective Frauenhoffer immediately responded. Real
Scrap was just about a block away from 2132 Maisel Street.
Detective Frauenhoffer explained the nature of the scrapyard
THE WITNESS: Scrap yards take metal and they purchase it from
people when they deliver to the location, again, it could be
any type of metal, roofing material, tools, cars, half cars,
anything, but they take it there to drop off so they can
receive money for the weight of metal.
the appellant saw Detective Frauenhoffer approaching, he
turned and ran. A foot chase by several Baltimore City and
Baltimore County officers through some nearby heavily wooded
areas followed, ultimately ending after the appellant and one
of the pursuing officers fell together into a stream. The
appellant had brought to Real Scrap and Detective
Frauenhoffer recovered all of the property that had shortly
before been taken from Mr. Dowling's garage. The property
was subsequently identified by Mr. Dowling. At Mr.
Dowling's, Detective Frauenhoffer also noted where the
garage door had been kicked in.
Attack On Legal Sufficiency
appellant did not take the stand, nor did he offer any
witnesses or other evidence. He never so much as offered an
explanation to the police as to what he was doing at Real
Scrap with Mr. Dowling's property. It is difficult to
imagine a burglary and theft case more open and shut than
this. It was at this point in the analysis that the ghost of
Kucharczyk v. State, 235 Md. 334, 201 A.2d 683
(1964), was invoked in the appellant's brief. The
challenge was to the legal sufficiency of the evidence, as a
matter of law.
The evidence is insufficient to sustain the
convictions. The State's circumstantial case relied
entirely on Mr. [D]owling's claim that the garage had
been broken into and that appellant did not have his
permission to enter the garage and take the items. However,
Mr. [D]owling's testimony was inherently incredible,
and was therefore insufficient. See Kucharczyk v. State,
235 Md. 334, 337 (1964).
here that we encounter, as legions of cases have encountered
over the past 55 years, the massive disconnect between the
case of Kucharczyk v. State, with its
microscopically narrow holding that has never been repeated,
and the so-called Kucharczyk Doctrine, a bloated
attack on the legal sufficiency of evidence generally and
based ostensibly on the Kucharczyk case. In the
actual case, the State's entire case of guilt had
consisted of the uncorroborated testimony of a single witness
whose testimony was rent by unresolved contradictions about
the very happening of the crime itself. The issue was not
credibility per se. It was rather the utter absence
of any plausible assertion that the crime had even taken
years since 1964, however, the defense bar has created a
wildly exaggerated Kucharczyk Doctrine that has
taken on a mythic life of its own. The doctrinal mantra is
that any significant attack on the credibility of a
State's witness will serve to exclude that witness's
testimony from evidence and thereby erode the legal
sufficiency of the State's case by diminishing it to
nothing. In his brief, albeit not before Judge Handy, the
appellant argued that Mr. Dowling's testimony was subject
to such exclusion by virtue of various "inconsistencies,
weaknesses, and deficiencies," and, therefore, could not
be relied upon to prove the appellant's guilt. The
After purportedly finding the garage door kicked in, Mr.
Dowling did not call the police on March 8. He testified,
however, that within an hour, that same day, the police went
to his home. Detective Frauenhoffer, on the other hand,
testified that he had tried, "with negative
results," to contact Mr. Dowling on March 8, and was
only able to speak with Mr. Dowling the next day, March 9.
Additionally, Mr. Dowling testified that he never gave
appellant permission to enter the garage. But he also told
police that the camper in which appellant was staying
obtained electricity from an electrical outlet in the garage.
In the face of all these inconsistencies, weaknesses, and
deficiencies, Mr. Dowling's testimony cannot be relied
on to prove beyond a reasonable doubt that appellant
broke into the garage and took the tools without Mr.
Dowling's own involvement and permission. As such,
reversal is required.
v. State, however, never held any such thing and the
so-called Kucharczyk Doctrine, of course, has no
provenance beyond Kucharczyk v. State itself. The
heart of the problem has become one not of dealing with the
Kucharczyk case itself but with its
post-Kucharczyk mantra. The so-called
Kucharczyk Doctrine has never actually prevailed,
but its ...