Theft is one of the most common crimes, if not the most common, charged in Maryland and tried by Maryland Criminal Attorneys. Excluding complicated fraud and white collar thefts, most of these cases are run of the mill in terms of the facts, the law and the outcome and rarely pose much of an intellectual challenge for the attorneys handling the case. I had a theft case this morning, however, in Baltimore City Circuit Court that had a rather unique issue that posed a bit of a challenge and made the case much more interesting that the average theft case. First the law.
There are only two elements to the crime of theft and they are both simple and logical. The elements are that property must be taken from another and that it must be taken with the intent to permanently deprive the owner of that property. The issue in the case went to element number two, whether or not my client intended to permanently deprive the owner of the property in question. The specific issue involved, and was ultimately resolved upon, a somewhat arcane legal concept known as asportation. Essentially what it means is that there must be an attempt by a would be thief to carry the property away from the area where the property was originally taken in order to complete the crime of theft. In other words it is not sufficient for the State to prove that the alleged thief merely took possession of the property that did not belong to him without the permission of the owner; there is the additional requirement that the State prove that the alleged thief moved the property from its original location or at least made an attempt to do so. More on the law in a moment but first, here are the facts of the case:
On July 3rd, 2008 my client was out with 3 friends, one male and two female, in the Canton area of Baltimore City. It was after 2:00pm when my client and his friends encountered the alleged victim and her friends on Boston Street. For unknown reasons a verbal altercation began between the female members of the two parties. In short order the verbal altercation became physical between the women. The men in both parties entered the scuffle and a few punches were thrown between them resulting in no real injury to anyone. At some point during the scuffle the alleged victim dropped her purse to the ground. My client picked the purse up and said something to the effect of ” I should take your s*#!” or “I’m gonna take your s*#!”. At this point two of the alleged victim’s male friends took the purse back from my client and that essentially ended the altercation.
I spoke at length with the Assistant State’s Attorney (ASA) about the case and although she agreed that it was not a strong case she was unwilling to drop it as my client is on probation for robbery backing up twenty years. I told her that I intended to try the case to a jury because of my client’s probation status as even a sentence of time served or a fine would result in a violation of his probation exposing him to substantial incarceration. I told her that I might consider arguing the case to a judge but only if we could come to an acceptable agreement as to what facts would be presented to the court. The agreement that we came to was essentially what I have written above but I insisted on two additional facts being added to the presentation. I wanted the factual presentation to contain both the fact that my client made no attempt to leave the area with the purse and the fact that he surrendered the purse to friends of the alleged victim without a struggle. To her credit the ASA agreed to these facts. I say to her credit because although these facts are indisputably true, some less ethical prosecutors would have refused to stipulate to them and instead tried the case in an attempt to either obfuscate the facts or simply to drown the inconvenient facts in the deluge of information that comes out in a trial in the hopes that the jury would either miss these important facts altogether or at least fail to attach the necessary importance to them.
At any rate those were the facts that were presented to the court. I argued a lack of asportation and relied upon the case of Williams v. State, 101 Md. App. 408. In that case, Judge Murphy, who would later become Chief Judge of the Court of Appeals, wrote that, “specifically, to constitute robbery, the property must, as in larceny, be both taken and carried away, so that an asportation of the stolen property, as well as a trespass, would appear to be indispensable elements of the offense.” Since the State had stipulated that my client made no attempt to leave the area with the property and indeed surrendered it to her friends without struggle, the Judge had little choice but to find the evidence insufficient as a matter of law and to find my client not guilty.