HEADNOTE: Eric Roes v. State of Maryland, No. 147, September Term 2017
CRIMINAL LAW – SUFFICIENCY – NATURAL RESOURCES § 8-725.1 –
ABANDONING A VESSEL – Appellant was charged with abandoning two houseboats
in the Choptank River. Appellant disputed that one of the two houseboats was
“unattended,” as provided in Natural Resources § 8-721. After considering the legislative
history, the Court held that there was sufficient evidence for the jury to find that the boat,
which was resting in the mud in a state of disrepair and deterioration, met the statutory
definition and was abandoned.
CRIMINAL LAW – SUFFICIENCY – CRIMINAL LAW § 10-110 – LITTERING –
Appellant challenged his two convictions for littering in an amount in excess of 500
pounds, in connection with two houseboats found abandoned in the Choptank River.
Although boats are not listed in the criminal statute, the Court, after considering the
legislative history and standard dictionary definitions, held that the houseboats constituted
litter and upheld the jury’s verdict.
CRIMINAL LAW – MERGER – RULE OF LENITY – ABANDONING A VESSEL
AND LITTERING – Appellant’s sentences for abandoning a vessel under Natural
Resources § 8-725.1, merge into his sentences for littering in an amount in excess of 500
pounds under Criminal Law § 10-110, pursuant to the rule of lenity.
Circuit Court for Caroline County
Case No. C-05-CR-16-000087
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 147
September Term, 2017
______________________________________
ERIC ROES
v.
STATE OF MARYLAND
______________________________________
Meredith,
Arthur,
Eyler, James R.
(Senior Judge, Specially Assigned),
JJ.
______________________________________
Opinion by Eyler, James R., J.
______________________________________
Filed: April 4, 2018
* Judge Christopher B. Kehoe did not participate
in the Court’s decision to designate this opinion
for publication pursuant to Md. Rule 8-605.1.
A jury in the Circuit Court for Caroline County convicted Appellant, Eric Roes, of
two counts of abandoning a vessel, in this case, two houseboats, and two counts of littering
in an amount exceeding 500 pounds. Appellant was sentenced to concurrent sentences of
six months on all counts, all suspended, with two years of supervised probation. Appellant
timely appealed and presents the following questions for our review:
1. Was the evidence sufficient to convict Appellant of abandoning a
vessel?
2. Was the evidence sufficient to convict Appellant of littering in an
amount exceeding 500 pounds?
3. Was it proper to impose separate sentences for abandoning a vessel
and littering?
For the following reasons, we shall vacate appellant’s sentences for abandoning a
vessel, but otherwise affirm.
BACKGROUND
In late 2015 and early 2016, Corporal Stephen Hunter, of the Department of Natural
Resources Police, investigated numerous complaints concerning two sunken houseboats in
the Choptank River near 11672 Greensboro Road, in Greensboro, Caroline County,
Maryland.1 Corporal Hunter phoned appellant, and asked him whether he owned the boats
in question. Although appellant admitted that he owned the boat that was tied to his pier,
and registered in his name, he denied that he owned the second boat, named the “Laughing
Loon,” that was tied to a nearby tree upriver from appellant’s pier.
1
The Choptank River is a public body of water in the State of Maryland. Corporal
Hunter testified that both houseboats were approximately 45 feet in length and weighed
over 500 pounds.
Asked at trial about the condition of the Laughing Loon, Corporal Hunter testified
that it was “in a state of disrepair um, if you walk down and look at the boat, when the
tide’s up it’s half submerged. You can look down the sides um, the boats are starting to
buckle out and rot and decay.” Further, “when the water is out it sits in the mud, and when
the water’s up it’s half submerged, still sitting on bottom, like it doesn’t float at all.”
Testifying from a photograph of the vessel, Corporal Hunter continued:
[S]o it’s just sitting in the mud, but, and if you look around it’s, if you look
on the inside it’s half full of mud and leaves and debris. It actually appeared
to me likes [sic] it’s sinking down into the mud of the river. You could
observe when the tide’s out there’s you know a rusted motor block and the
stern of the boat. And just in general like I stated on the sides, I mean the
actual hull itself is buckled and starting to come apart.
Corporal Hunter further testified that appellant told him that an unidentified
individual placed the Laughing Loon at its location. Appellant stated that this boat “hadn’t
really bothered him,” therefore, he never reported it as abandoned. Corporal Hunter
confirmed that the Department had received numerous complaints about the Laughing
Loon. Corporal Hunter was unable to find registration information, or any other indicia of
ownership, for the Laughing Loon.
As for the second boat tied to appellant’s pier, Corporal Hunter testified that it was
unnamed but appeared to be a Seagoing brand houseboat (Seagoing boat). A photograph
of the boat, depicting its condition, was admitted into evidence at trial. Some time in
February 2016, Corporal Hunter told appellant that he had fourteen (14) days to repair the
Seagoing boat attached to his pier to get it into a “floating condition.” Appellant agreed to
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comply with respect to that boat, but did not make any agreement with respect to the
Laughing Loon.
After expiration of the fourteen days, Corporal Hunter visited appellant in March
2016. Corporal Hunter testified:
Um, the boat tied to Mr. Roes[’s] pier the physical condition of the
boat didn’t seem to have changed, it was buoyant at the time um, through the
hatches you could still see there was some water down in the bilge of the haul
[sic], but I physical tested the boat at the stern and the bow and it was floating.
It was buoyant.
Corporal Hunter clarified, with respect to the Seagoing boat, that “I would call it
buoyant but just the overall condition, you know going into the future, I wouldn’t be
surprised if it ended up sunk again.” Asked to explain, the officer continued:
Um, based upon the prior times I observed the vessel, and the overall
condition, you could see, it seems especially when I saw it even when it was
floating there’s still water in the haul [sic], any rainwater you get or any tide
water that got in would just keep collecting and cause the boat to sink.
On or about September 9, 2016, Corporal Hunter took more photographs of both
vessels. As to the condition of both, he testified:
The condition, I believe I went down when the water was higher, the
boat at the pier was full of water and sunk: And the Laughing Loon that
vessel was still in the same, or worsening condition, as prior occasions to,
that I saw it.
He further testified that the Laughing Loon remained “sitting in the mud, still sitting on
bottom” and was “buckled out where you can show where the condition of the haul [sic]
itself is buckled and starting to rot apart.” Further, “parts of the boat have started to
deteriorate and [were] falling off the sides,” and it was possible to see “the scum line, or
when the ah, the tide comes up.” He also observed “mud and leaves [and] other stuff, you
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know sticks and twigs, and anything else you find in the river down inside the boat.” As
recently as December 2016, just a few months before trial, Corporal Hunter confirmed that
the Laughing Loon was still in the water in a state of disrepair.
With respect to the Seagoing boat tied to appellant’s pier, Corporal Hunter testified
that, on or around September 9, 2016, at high tide, the boat was not “floating.” A
photograph showed that “water is over the bow. And um, the overall condition is it’s sitting
on bottom.” On cross-examination, Corporal Hunter agreed that this houseboat did not
appear to have an engine.
Officer Robert Karge, also with the Natural Resources police, testified that he also
investigated this case and agreed that, from March to December 2016, both vessels in
question were in a state of disrepair, meaning, “in a condition to where it’s not going to be
operable.” On December 21, 2016, the railing for the Laughing Loon was falling off, and
“water was seeping out of the interior with a lot of leaves and debris throughout the
bottom,” the scum line was high on the boat, and “pieces were obviously missing off the
back, you can barely see an engine compartment from the back.” And, the Seagoing boat,
tied to the pier, was “full of water, and was inline with the ah . . . the front of the vessel
was inline with the waterline. Sitting on bottom.” The two boats were located
approximately 100 yards apart. Asked to further explain his observations, Officer Karge
testified as follows:
A: Both vessels, the water line, the Laughing Loon has remained on
the bottom the entire time that we’ve seen it and observed it um, over my,
last, more then [sic] a year. The waterline continuously rises and falls with
the tide, the sides of the vessel continually bow out further and there’s
different pieces missing every time I observe it. The vessel tied to the pier it
4
was observed to have, it had a large crack um, on the low tide we couldn’t
see it during the high tide because it was full of water. But, during low tide
it was visible and sitting on bottom as having a large gapping [sic] whole
[sic] in the front um, and it has a scuz line above the actual hull itself showing
where the water, you know over a period of time, extended period of time
has . . . has tarnished the paint.
Q: What . . . sorry to interrupt, what is a scuz line?
A: So, you can observe it on pilings things of that nature, so at high
tide the tide levels ah, stay kind of constant and for a period of time all the
water, bacteria, and algae starting adhering to that specific object based on
the high tide. When the tide mark line goes down, then it’s visible and it’s
off colored and it wouldn’t be, you know the same appearance, on a white
vessel you can see these due to discoloration from the white. It’s going to be
sometimes brown, sometimes red, sometimes green, it just depends.
Officer Karge then identified a photograph of the Seagoing boat. He testified that
this photograph, taken around the summer of 2016, depicted the following:
So, in this picture, the photograph was taken from a vessel, a patrol
vessel facing towards the property. You can see where the front of the vessel
is and it has a door on it. The waterline is above the actual deck itself, the
lines are taunt [sic], or were loose at that time. You can see the off coloring
just above the waterline that I was talking about, as well as on the pilings.
You can see it’s much darker towards the bottom where the tide line usually
sits, which is indicative of a vessel that’s been in this state or sitting in that
condition with the tides rising and falling over a period of time.
Officer Karge agreed that, at one point in March 2016, the Seagoing boat was
floating, but had not been observed afloat since then. He further testified that both boats
had deteriorated and, at no point between March and December 2016, did they improve.
On cross-examination, Officer Karge agreed that the fact that a boat was sunk was
only one factor in determining whether the boat was “abandoned.” On redirect, Officer
Karge was then asked to explain what factors went into the determination that these boats
were abandoned:
5
Basically from the definition um, because it was found um,
unattended in and upon the waters of the State, based on the condition, found
in a condition of disrepair to constitute a hazard or obstruction to the use of
the waters of the State or present a potential health or environmental hazard
based on the investigations done into numerous abandoned boats in the past,
um, judging by the condition of these with the one up against the pier which
the roof had blown off and was floating somewhere going down under water
possible other pieces floating off of it, the Laughing Loon in a continuing
state of disrepair with parts missing not knowing where those are, could
possibly be a navigational channel but also in a state of disrepair of pieces
missing, it’s bowed out to the side, I’d say inoperable. Um, that would
classify as [an] abandoned boat in the State of Maryland.
Peter Tallie, appellant’s neighbor, testified that, to the best of his knowledge, the
houseboat tied to a tree, i.e., the Laughing Loon, was on appellant’s property. Tallie
testified that he used to swim in the Choptank River near appellant’s property and noticed
the condition of the boats. On one occasion, Tallie asked about the condition of the
Seagoing boat tied to appellant’s pier, and appellant replied that he just needed to pump it
out and that he was working on it. Tallie also testified that, in the approximately fifteen
years that he lived near appellant, appellant never denied owning the two houseboats in
question.
Another neighbor, Christian Curtis, testified that he first bought his property near
appellant in April 2005. He was aware that appellant had a pier and owned two houseboats
and a jet ski. Curtis then testified:
Ah, there were, one houseboat was at the dock. The other one was
about a hundred yards maybe or so, up river it was lashed to a tree; The
houseboat that was lashed to a tree used to be at the dock it was towed up
there, we saw Mr. Roes bringing it up river, I say we, my wife and I. Um,
and it was called, we remember the name was called the Laughing Loon we
remembered it was from Washington, D.C, which my wife and I commented
about because we are originally from that area. And it was put at the dock
and then that Laughing Loon is no longer at the dock, it's now up river, like
6
I said it’s lashed to tree. And there’s a second houseboat it doesn’t have a
name on it, it’s now at the dock. This occurred around Summer 2006. I
could well, I got . . . yeah that sounds right.
Curtis testified that, when he originally saw the Laughing Loon, it was tied to
appellant’s pier. He saw appellant “working on it at one point, I think they were trying to
get the engines running because I saw black smoke belching out of the back.” After this,
Curtis saw appellant tow the Laughing Loon and tie it to a tree. The Seagoing boat arrived
soon thereafter, in approximately 2006. Curtis also saw appellant working on this second
houseboat over time.
Christopher Voorhes, another neighbor, testified that, at one point, both houseboats
were afloat, but neither had been afloat for several years. Voorhes confirmed that he had
seen appellant on the Seagoing boat. He also testified that the Laughing Loon was towed
to its present resting place in the mid-2000’s.
Appellant testified on his own behalf and admitted that the pier and the Seagoing
boat tied to it were on his property. Although he did not live at this location, appellant
contended that he was “constantly working” on that boat, from March to December 2016.
This included lifting it out of the water, fixing the keel, and pumping it out. He stated that
he “had it floating pretty good for awhile.” He admitted that, at a later point in time, the
boat was sitting in the mud, “[b]ut it’s in a good spot where, the mud kind of holds it there,
until we swap the battery out and pumped it back out again.” He also testified that “at this
point we try to keep a good battery or two on it. And we’re trying to hook a solar charger
on the top.”
7
Appellant maintained that he did not own the Laughing Loon and did not know who
did. When asked whether the tree that the Laughing Loon was tied to was located on his
property, appellant did not deny that it was, but replied, “it’s very hard to say . . . .”
Appellant then testified that, after he learned that the Department of Natural Resources
would not remove the Laughing Loon, his wife got an estimate and they learned that it
would cost between $6,000 and $10,000 to remove it.
Appellant also testified that the Seagoing boat had been tied to his pier since
approximately 2000, and the Laughing Loon appeared in around 2005 or 2006, after he
built his pier. He agreed that, when this other person brought the Laughing Loon to the
area, he may have docked it temporarily at his pier and he may have helped him work on
it.
On cross-examination, appellant was asked about repairing the Seagoing boat:
Q. How much would it cost to fix the boat that is currently tied to your
pier that you admit to owning?
A. Well, not much, I mean the big cost is getting it down in the river,
having it pulled out, and put up on blocks, about a Thousand Dollars ($1,000)
for that and maybe to really do a good job on the hull, another Thousand
Dollars ($1,000). And there’s things I’d like to do to it as well put some new
windows in it, a new door, it needs a paint job really bad. And tighten up the
roof so it doesn’t have any leaks.
Q. But you haven’t done that for all of the years that it’s been there?
A. No, I’ve done a lot that boat is, you can ask my wife, keeps me
busy and I don’t get much, I spend way too much time working on that boat.
The last couple years we just had another baby and it’s taking away from it
a little bit, and it went down. I just heard about it when the DNR police told
me it was sunk I ran down there within fourteen days I had it floating again.
So, they, that was their testimony if I . . .
8
Q. Yet, both of those boats were sinking between March of 2016 and
December 2016?
A. That was after we got, we were allowed fourteen days to get it
floating. And they said everything was fine and all the charges were dropped.
I thought that was the end of it. And then shortly thereafter, we had it floating
it, the crack got further down, and we had to go back in a few times and fix
that crack. And I’m sure it’s going to get done ever better, so we don’t have
future problems. We intend on pulling it out, my boat out, I’ve already had
that lined up.
Appellant denied that, from March to December 2016, the Seagoing boat was
underwater, testifying that he thought it was afloat most of the time, and that, if not, he
pumped it out. But, he agreed that “I haven’t really had a chance to do the repairs a hundred
percent. So, hopefully I can get it out of the water, I’ll get that repaired and I won’t have
these problems anymore. That’s my goal.” Appellant also stated that he knew someone
who owned a marina two miles downriver and that this person had a crane that could put
the boat on a trailer. When asked by the prosecutor why he had not pursued that before,
appellant replied, “[w]ell we really never asked him before.”
We shall include additional detail in the discussion that follows.
DISCUSSION
I.
Appellant first contends that the evidence was insufficient to convict him of
abandoning the Seagoing boat that was tied to his pier on the grounds that it was not
“unattended” as defined by Section 8-721 of the Natural Resources Article. The State
9
disagrees, asserting that the jury could properly decide that this houseboat had deteriorated
to the point where it was abandoned under the applicable statutes.2
In sufficiency cases, we ask “‘whether after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.’” Grimm v. State, 447 Md. 482, 494-95
(2016) (quoting Cox v. State, 421 Md. 630, 656-57 (2011)); accord Jackson v. Virginia,
443 U.S. 307, 319 (1979). When making this determination, the appellate court is not
required to determine “whether it believes that the evidence at the trial established guilt
beyond a reasonable doubt.” State v. Manion, 442 Md. 419, 431 (2015) (emphasis in
original) (quoting Dawson v. State, 329 Md. 275, 281 (1993)). Rather, it is the trier of
fact’s task to weigh the evidence, and the appellate court will not second guess the
determination of the trier of fact “where there are competing rational inferences available.”
Manion, 442 Md. at 431 (quoting Smith v. State, 415 Md. 174, 183 (2015)).
Generally, our standard of review has two basic components: (1) the “essential
elements” of the crime; and, (2) whether the State has met its burden of production.
Considering the “essential elements” on appeal involves an interpretation of Maryland
statutory and case law. In such instances, we “must determine whether the lower court’s
conclusions are legally correct under a de novo standard of review.” Rodriguez v. State,
2
Appellant does not challenge the sufficiency of the evidence for abandoning a
vessel with respect to the Laughing Loon. He also does not challenge whether the Seagoing
boat posed a health or environmental hazard.
10
221 Md. App. 26, 35 (citations omitted), cert. denied, 442 Md. 517 (2015). With respect
to the burden of production, this Court has explained:
In a criminal case, no issue is more important than whether the State
has satisfied its burden of production. The concern is with production, as a
matter of law, and not with persuasion, as a matter of fact. The appellate
assessment of the burden of production is made by measuring the evidence
that has been admitted into the trial objectively and then determining whether
that body of evidence is legally sufficient to permit a verdict of guilty. In a
jury trial, a motion for a judgment of acquittal at the end of the entire case
initiates the examination of the satisfaction of the burden of production. If
that burden of production is not satisfied, the trial judge is wrong, as a matter
of law, for denying the motion and for allowing the case even to go to the
jury.
Chisum v. State, 227 Md. App. 118, 130 (2016); see also Burns v. State, 149 Md. App. 526,
547 (2003) (“Our concern is with whether [the trial judge] was correct, as a matter of law,
in allowing the case to go to the jury. What the jury then did with the evidence is, on this
issue, beyond our purview”).
Section 8-725.1(a) of the Natural Resources Article provides that “A person may
not abandon, as defined in § 8-721 of this subtitle, any vessel upon any waters of the State.”
Md. Code (1973, 2012 Repl. Vol) § 8-725.1(a) of the Natural Resources (“Nat. Res.”)
Article. In turn, and pertinent to our discussion, Nat. Res. § 8-721 provides:
(a) In this section, “abandoned or sunken vessel” means any vessel
that:
***
(5)(i) Has been found adrift or unattended in or upon the waters of the
State, and is found in a condition of disrepair as to constitute a hazard or
obstruction to the use of the waters of the State or presents a potential health
or environmental hazard; . . .
Nat. Res. § 8-721.
11
Appellant’s contention is that the Seagoing boat was not “unattended” under the
statute. This argument was presented to the trial court at the end of the State’s case-in-
chief:
Number five, has been found adrift or unattended or in and upon the waters
of the State. A vessel, it’s clearly not adrift. The testimony is that this is tied
to the dock. Unattended does not apply to a boat that is tied to a dock, that
is ah, that is registered and that has had people working on it. That’s not
unattended, it’s not adrift. It’s also not a hazard or an obstruction to the use
of the waters because it’s at a dock. A dock is not navigable water. It is not
public navigable water. There’s been no testimony as to health or
environmental hazard. For those reasons I would ask you to grant a motion
for judgment of acquittal as to the boat at the pier, as Mr. Roes cannot
abandon his own boat on his own property.
The State responded, in part:
The Defendant has clearly, which has been seen by, heard in the testimony,
he’s been the only person um, he has been in control of these boats. Both of
which have been at his pier and they’ve moved, and they both are in a state
of disrepair. They are both not fixed.
Further:
[W]e have testimony from the Natural Resource Officer that the boat that
ended up at the Defendant’s pier, the [S]eagoing boat was deteriorated with
pieces falling off it. And that constitutes a potential health hazard and that’s
where Statute 8-725.l abandonment of the vessel. And Your Honor also the
State would like to be heard just a little bit more briefly. Um, the boat was,
after listening to the testimony it was clear that both boats were unattended
between the dates that the State is charging with. Which is March 2016 to
December 2016, there is no testimony that the Defendant worked on the boat
from March 16th . . . March 2016 to December 2016.
At this point, defense counsel interrupted and the following ensued:
[DEFENSE COUNSEL]: That’s just false he stated, one of the
witnesses stated to the contrary.
THE COURT: One of the witnesses said I believe that he saw there
were some work being done on the boat attached to the pier.
12
[PROSECUTOR]: But not during the dates that . . .
THE COURT: No, it wasn’t during the, it was prior to March of 2016.
[PROSECUTOR]: And both . . . both boats have been sunk since . . .
since March 2016 through December 2016. That’s the date that the State’s
is talking about. The boats are clearly a hazard when you have two very
experienced officers talking about the environmental hazard when there’s
pieces of the boat falling off. You have people kayaking in the river,
swimming in the river and pieces of large houseboats falling off, such as the
roof that was testified. Each witness has said that the tree was on the
Defendant’s property. And the State would rest with that.
Argument on the defense motion for judgment of acquittal concluded as follows:
[DEFENSE COUNSEL]: Um, pieces falling off of it, there was no testimony
as to any kind of any environmental impact from pieces falling off of it. We
don’t have any expert telling us what happens if a piece of some certain
material falls in the water, and what kind of environmental impact that might
have. There was no testimony as to anyone possibly being of interest or any
type of safety issue. This is all supposition and hypothetical. This whole
case is suppositional and hypothetical. It’s the boat was obviously not, the
boat at the pier was obviously not unattended if it was floated it one point, it
did not float itself. It was pumped out. It’s not unattended; And Your Honor
someone is allowed to leave their boat at their dock and not touch it. I have
a boat in Annapolis right now, that I’m not touching, it’s not abandoned. It’s,
I mean that’s an asinine argument.
THE COURT: Well, if it was falling apart, if it was sunk, if it was
sitting on the bottom of the river, you’re saying that wouldn’t be . . .
[DEFENSE COUNSEL]: It’s tied to the dock and it’s registered.
THE COURT: There’s more to it then [sic] that.
[DEFENSE COUNSEL]: I don’t think there is.
THE COURT: Well, I do. All right, I’m going to deny the motion at
this time. Ah, you can, I have to explain, but you all know I have to look at
the evidence in the light most favorable to the State when I rule on this
motion. It may be renewed at the end of the case if the Defense wishes to do
so.
13
The canons of statutory construction are well settled and begin with the “cardinal
rule” that requires us to “ascertain and effectuate the intent of the Legislature.” Jamison v.
State, 450 Md. 387, 396 n.9 (2016) (citation and quotation omitted). To that end, “we first
examine the plain language of the statute, and if the plain language of the statute is
unambiguous and consistent with the statute’s apparent purpose, we give effect to the
statute as it is written.” Id.; see also Hurst v. State, 400 Md. 397, 417 (2007)
(“Unambiguous language will be given its usual, ordinary meaning unless doing so creates
an absurd result”) (citing MVA v. Shepard, 399 Md. 241, 254 (2007)).
Moreover, “[w]e begin by looking to the plain language of the provision with a goal
of ‘discern[ing] the legislative purpose, the ends to be accomplished, or the evils to be
remedied by a particular provision, be it statutory, constitutional or part of the Rules.’”
Fuller v. Republican Cent. Comm. of Carroll Cnty., 444 Md. 613, 629 (2015) (quoting
Davis v. Slater, 383 Md. 599, 605 (2004)). Further, “we do not read statutory language in
a vacuum, nor do we confine strictly our interpretation of a statute’s plain language to the
isolated section alone. Rather, the plain language must be viewed within the context of the
statutory scheme to which it belongs, considering the purpose, aim, or policy of the
Legislature in enacting the statute.” Williams v. Peninsula Reg’l Med. Ctr., 440 Md. 573,
580-81 (2014) (quoting Lockshin v. Semsker, 412 Md. 257, 275-76 (2010)).
When Nat. Res. § 8-725.1 was originally added in 1977, the statute prohibited the
following: “(a) a person may not wilfully abandon or wilfully cast adrift any vessel upon
any waters of the State.” 1977 Md. Laws, ch. 511, § 1 (H.B. 1041). In 1985, “wilfully”
was deleted. As recorded in the Laws of the State of Maryland, the amended statute read
14
as follows: “(a) A person may not [wilfully] abandon [or wilfully cast adrift], AS
DEFINED IN § 8-721, any vessel upon any waters of the State.” 1985 Md. Laws, ch. 670,
§ 1 (H.B. 1004). The purpose of removing the wilful element was stated as “changing the
misdemeanor offense of abandonment of a vessel from a crime of specific or willful intent
to a crime of general intent.” Id. According to the Maryland Laws, Section 8-721 was
added and provided, in pertinent part:
(a) In this section “abandoned vessel” means any vessel:
(3) That has been found adrift or unattended in or upon the waters of
the State, OR AND is found in such disrepair as to constitute a hazard or
obstruction to the use of the waters of the State or presents a potential health
or environmental hazard.”
1985 Md. Laws, ch. 670, § 1 (H.B. 1004).
The purpose of the law was to authorize the Department of Natural Resources (the
“Department”) “to seize and remove ‘abandoned vessels’ and to delegate this authority to
any county.” Fiscal Note, House Bill 1004 (Department of Fiscal Services 1985). Notably,
in 1985, the Department estimated that it removed an average of 51 boats per year at a total
cost of $58,000. Id. According to the Committee Report from the Senate Judicial
Proceedings Committee:
Presently, the Department of Natural Resources has found it difficult
to remove abandoned vessels and enforce specific provisions of the State
Boat Act which impose penalties on owners who abandon vessels in State
waters. The chief reason is that existing legislation contains language which
uses the term “willful”. It is difficult to prove “willfulness” since proof of
“willfulness” must include an admission or a witness to the act.
Summary of Committee Report, Senate Judicial Proceedings Committee, House Bill 1004
(State Boat Act – Abandoned Vessel) (1985).
15
The Department explained its support for expansion of the law because “existing
legislation contains language that makes it difficult to prove intent (willfully), time
restrictive in length of time in abandonment (6 months), and difficulty in proving
ownership.” Bill Report, Department of Natural Resources, H.B. 1004 – 3rd (March 28,
1985). And:
The Department is of the opinion that there will be several positive
impacts as a result of this legislation. (See attachment form Natural
Resources Police). HB 1004 will correct the described enforcement
problems and will act as a deterrent in the indiscriminate abandonment of
vessels on the waters of the State.
It will also define specific terms and establish procedures whereby the
Department will have the authority to remove abandoned vessels from State
waters in a more timely and efficient manner. In addition, it will allow the
Department to reclaim removal costs, estimated to be $25,000.00 per year,
from boat owners whose vessels are presently being removed at State
expense.
Bill Report, Department of Natural Resources, H.B. 1004 – 3rd (March 28, 1985); see
Attachment, Natural Resources Police, Department of Natural Resources (Ref: HB 1004)
(“From the standpoint of the Natural Resources Police one of the major problems in
enforcing the abandoned boat law has been the difficulty in proving liability. . . . Another
equally serious problem has been the difficulty in proving ownership”); see also Letter
from Mick Blackistone, Executive Director of the Marine Trades Association of Maryland,
House Judiciary Committee, H.B. 1004 (February 27, 1985) (“Abandoned vessels
continually cause environmental and navigational problems on our waterways”).
We recognize that some of the materials described above originated from advocates,
not from members of the General Assembly. Nevertheless, such information provides
16
context for the General Assembly’s action and may be considered for that limited purpose.
Kaczorowski v. City of Baltimore, 309 Md. 505, 514 (1987). Based on our consideration
of the text itself, our starting point, the legislative history, including the removal of the
specific intent limitation, and the circumstances providing a context for the General
Assembly’s action, we discern the intent of the abandoned vessel statute to be broader than
suggested by appellant. Nevertheless, we must determine what is meant by “unattended.”
“Unattended” is not defined in the statute. “In determining the ordinary meaning of words,
we have found it helpful to consult their dictionary definitions.” In re Cody H., 452 Md.
169, 184 (2017). According to the Oxford English Dictionary, the definition of
“unattended” is “1. Not attended or waited upon; unaccompanied. . . . 2. Not attended or
accompanied by or with some thing, circumstance, etc. . . . 3. Not attended to.” XVIII, The
Oxford English Dictionary 870 (2d ed. 1989) (“OED”). “Attended” is further defined as
“[w]aited upon, accompanied, frequented” and “2. To turn the mind to, give consideration
or pay heed to, regard, consider . . . 4. To turn the energies to, give practical heed to, apply
oneself to, look after . . . 5. To direct one’s care to; to take care or charge of, look after,
TEND, guard.” I OED 765-66 (2d ed. 1989).
Here, the evidence established that appellant owned the Seagoing boat that was tied
to his pier. Photographs of the boat were admitted into evidence and available for the jury’s
consideration. During most of the time in question, this boat was resting in the mud, in a
state of disrepair and deterioration, and, because it was missing an engine, not operable.
There was evidence that there was a large crack in the hull, causing water to enter the
vessel. There was also a visible “scuz” line, suggesting that the boat had not been moved
17
for some extended period of time. We are persuaded that this evidence was sufficient to
meet the State’s burden of production.
Furthermore, although appellant testified that the boat was not unattended because
he was constantly working on it, ultimately, that was an issue of credibility that was best
left to the factfinder. As we have repeatedly stated, “[i]t is ‘the jury’s task to resolve any
conflicts in the evidence and assess the credibility of witnesses.’ In so doing, the jury ‘can
accept all, some, or none of the testimony of a particular witness.’” Correll v. State, 215
Md. App. 483, 501-02 (2013) (internal citations omitted), cert. denied, 437 Md. 638 (2014).
We hold that the evidence was sufficient to sustain appellant’s conviction for abandoning
a vessel.
II.
Appellant next asserts that the evidence was insufficient to sustain his two littering
convictions, one for each of the two houseboats, on the grounds that boats do not meet the
statutory definition of “litter.” Appellant also contends that the houseboats were never
“discarded.” The State responds that “[t]wo disintegrating boats comfortably fit” the
definition of litter, therefore, the evidence was sufficient to sustain these two convictions.
We agree.
Section 10-110 of the Criminal Law Article provides, in pertinent part:
(c) A person may not:
***
(2) dispose or cause or allow the disposal of litter on public or private
property unless:
18
(i) the property is designated by the State, a unit of the State,
or a political subdivision of the State for the disposal of litter
and the person is authorized by the proper public authority to
use the property; or
(ii) the litter is placed into a litter receptacle or container
installed on the property.
Md. Code Ann. (2002, 2012 Repl. Vol., 2017 Supp.) § 10-110 of the Criminal Law Article
(“Crim. Law”).3
Discussion about this issue occurred at the end of the State’s case-in-chief, when
appellant argued as follows:
Your Honor the litter statute is clear. A person may not dispose or cause or
allow the disposal of litter on public or private property unless and the
exceptions do not apply here. Um, obviously this is, I’m not disputing the
property aspect, it’s either public or private, whatever designation you want
to give it. But litter is defined as rubbish, waste matter, refuse, garbage, trash,
debris, dead animals, or other discarded materials. A boat that’s tied to a
dock and that has been worked on is not a discarded material. It clearly falls
outside the scope of the statute.
The State responded to this specific argument as follows:
[A] boat that is sunk in the water is a discarded material. The State isn’t
saying that every single boat in the water is a discarded material. But we are
arguing that a boat that is by every witnesses [sic] testimony deteriorated is
a boat that is discarded of.
Although laws against litter existed in the Maryland statutes at least as early as 1959,
see 1959 Md. Laws, ch. 630 (H.B. 406), the present form of the Litter Control Law was
3
“Public or private property” includes “a body of water or watercourse or the shores
or beaches of a body of water or watercourse[.]” Crim. Law § 10-110 (a) (4) (ii). There is
no dispute that the houseboats were in the Choptank River, and that the Choptank is a
recognized body of water in the State of Maryland.
19
enacted in 1971 as Section 468 of former Article 27. See 1971 Md. Laws, ch. 106 (HB 28);
see also Maryland Legislative Council Report to the General Assembly of 1971, Proposed
bills, Special Committee reports, p. 162 (1971). Section 468(c)(1) defined “litter” as “all
rubbish, waste material, refuse, garbage, trash, debris, dead animals or other discarded
materials of every kind and description.” Section 468(d)(1) provided that “[i]t shall be
unlawful for any person or persons to dump, deposit, throw or leave, or to cause or permit
the dumping, depositing, placing, throwing or leaving of litter on any public or private
property in this State, or any waters in this State,” except under certain circumstances not
applicable here. And, Section 468(e) provided possible penalties of $250, imprisonment
of 30 days, or both, or, and at the discretion of the court, remediation of the affected area.
In 1993, the Legislature added a new three-tiered penalty schedule that linked the
penalty to the amount of litter dumped, as well as whether the dumping was commercial
or non-commercial. See 1993 Md. Laws, ch. 474 (SB 772). As explained by the
background from the Bill Analysis for Senate Bill 772:
Although current law provides heavy penalties for companies that
dump large amounts of hazardous or polluting materials on property or in
water, no corresponding penalties exist for persons who dump large amounts
of nonhazardous waste (e.g., automobile tires) or waste that is only suspected
of being hazardous but cannot easily be tested (e.g., drums of oil and grease).
Under current law, a violation of the Litter Control Law is a
misdemeanor and carries a maximum penalty of $1,000 or imprisonment for
not more than 30 days, or both, regardless of the amount of litter that is
dumped or whether the litter was dumped for commercial or noncommercial
purposes. Moreover, under current law, a court may waive the fine and
imprisonment and instead order a violator to remove the litter that the
violator has dumped. The bill also allows a court to order a violator to
remove litter, but the court may issue the order only in addition to imposing
a sentence of a fine or imprisonment.
20
The enhanced penalties that call for a maximum fine of $25,000 for a
misdemeanor violation and a maximum fine of $100,000 for a felony
violation are comparable to the penalties currently imposed on violators of
the water pollution control and hazardous materials and hazardous
substances statutes.
The elimination of the exception that allows property owners and
others to use property as a private dumping ground is intended to bring the
Litter Control Law into accordance with Title 9 of the Environment Article,
which requires a person who seeks to operate a refuse disposal system to
obtain a permit from the Department of the Environment.
Bill Analysis, Senate Bill 772, Senate Judicial Proceedings Committee (1993).
This expansion of the law received significant support from various entities,
including, for instance, the Department of Environmental Resources for the Prince
George’s County Government. That Department asked the Senate Judicial Proceedings
Committee to assist its continuing efforts at “enhancing environmental quality” and
requiring “strong action against littering and illegal dumping.” Letter from Eugene T.
Lauer, Director, Department of Environmental Resources, Prince George’s County
Government, to the Honorable Walter M. Baker, Chairman, Senate Judicial Proceedings
Committee (March 15, 1993). Director Lauer continued:
Ask anyone who has helped clean up a stream, pulled tires out of a river or
collected trash from our streets and neighborhoods, and you cannot fail to
understand the costs that illegal dumping and careless littering impose on our
community pride, our natural environment, our quality of life, and our public
services.
SB-772 amends the Litter Control Act to provide for penalties based
on the extent of the violation. Those that cause serious harm to the
environment should be subject to penalties in relation to that harm. This
legislation does just that. . . .
21
Id.; see also Letter from Richard J. Logue, Mayor, City of Bowie, to the Honorable Walter
Baker, Jr., Chairman of Senate Judicial Proceedings Committee (March 9, 1993)
(supporting the imposition of “penalties in relation to the severity of the offense”); Letter
and Testimony from Thomas Kusterer, Senior Environmental Planner, Montgomery
County Government, to Honorable Joseph Vallario, Chairman, House Judiciary Committee
(March 31, 1993) (offering support for SB 772, specifically the increased penalties “in light
of the amount of illegally discarded waste” and observing that “Montgomery County
received approximately 400 complaints resulting from illegal dumping of waste in 1992”).
In addition, the Office of the Maryland Attorney General offered its support for the
enhanced penalties based on volume by informing Chairman Vallario of the following:
Since 1982, the [Environmental] Crimes Unit has received numerous
complaints about unpermitted landfills and midnight dumpings. Two years
ago an investigation involving this office revealed a notable increase in out-
of-state generated debris being dumped in our northern and western counties.
Most recently a District resident dumped almost 500 tires in Prince George’s
County. Although he was charged with littering, there is little chance that he
will be extradited for this misdemeanor violation. There is an economic
incentive for this illegal dumping as tipping fees continue to rise. We can
only hope to counter this trend with equally strong sanctions against
violators.
Letter from Elizabeth Beebe Volz, Supervising Attorney, Environmental Crimes Unit,
Office of the Attorney General, to Honorable Joseph F. Vallario, Jr., Chairman, House
Judiciary Committee (March 31, 1993).
Moreover, the Interstate Commission on the Potomac River Basin also voiced
strong support for the enhanced penalties in a letter to Chairman Baker, observing:
All levels of government and individual citizens are being asked to pay for
more pollution control and land management function to improve water
22
quality, all of which is needed. But when the neighborhood stream and its
banks are loaded with trash, or the boater has to be wary of floating debris,
there can’t be much incentive to make the big financial commitment.
Another concern is that dumped material frequently contains toxics which
adds another dimension to the problem.
Letter from Herbert M. Sachs, Executive Director, Interstate Commission on the Potomac
River Basin, to Honorable Walter M. Baker, Chairman, Senate Judicial Proceedings
Committee (March 12, 1993).
Executive Director Sachs also noted that restoration efforts on the Anacostia River,
are regularly hampered “when every rainstorm washes a new load of truck tires, auto parts
and litter onto previously cleaned shorelines and banks.” Id. Not only does illegal dumping
result in degraded aesthetic and environmental quality, the Director also indicated that
“[r]ecreational boats sustain costly damage due to collision with floating trash and debris.”
Id.; see Anacostia Watershed, Interstate Commission on the Potomac River Basin, vol. IV,
no. 3, p. 2 (Summer 1991) (noting the long time it takes for such items as plastic containers,
bags, car parts and tires, wood pallets, shopping carts, and refrigerators to decay in local
streams and rivers); see also Letter from John J. Neville, Chairman, Citizens Concerned
for a Cleaner County, to the Honorable Walter M. Baker, Chairman, Senate Judicial
Proceedings Committee (March 12, 1993) (supporting S.B. 772 and noting that current law
was not effective because “[p]resently, violators face the same penalty whether they toss
out a gum wrapper or dump 500 tires”).
Again, after considering text, legislative history, and advocates’ positions providing
context, we conclude that by including enhanced penalties based on volume, the
Legislature did not just intend to prohibit the dumping of “petty waste and refuse
23
commonly disposed of in trash receptacles,” as appellant suggests. Appellant’s argument
appears to be that, since neither “boat” nor “vessel” are included in the definition of “litter,”
he cannot be guilty of violating Crim. Law § 10-110.
Again, we consider the commonly understood definitions of these terms. “Litter”
is defined by statute as “all rubbish, waste matter, refuse, garbage, trash, debris, dead
animals, or other discarded materials of every kind and description.” Crim. Law § 10-
110(a)(3). According to the Oxford English Dictionary, the verb “Litter” means: “4. Odds
and ends, fragments and leavings lying about, rubbish; a state of confusion or untidiness;
a disorderly accumulation of things lying about.” VIII OED, p. 1038. “Rubbish” is defined
as: “1. a. Waste or refuse material, in early use esp. such as results from the decay or repair
of buildings, debris, litter, refuse; rejected and useless matter of any kind.” XIV OED, p.
196. Next, “refuse” means: “2. a. Rejected or thrown aside as worthless or of little value;
discarded, useless . . . B. 1. a. That which is cast aside as worthless; rubbish or worthless
matter of any kind; the rejected or rubbishy part of anything.” XIII OED, p. 494. “Garbage”
can mean: “2. Refuse in general; filth.” VI OED, p. 363. “Trash” can mean: “1. a. That
which is broken, snapped, or lopped off anything in preparing it for use; broken or torn
pieces, as twigs, splinters, ‘cuttings from a hedge, small wood from a copse’ . . . 3. a.
Anything of little or no worth or value; worthless stuff; rubbish; dross. (Said of things
material or immaterial.)” XVIII OED, p. 439. And, “debris” means: “1. The remains of
anything broken down or destroyed; ruins, wreck.” IV OED, p. 314.
Finally, the prohibited acts under Crim. Law § 10-110 include “disposal,” a form of
“dispose” which means: “8. b. To put or get (anything) off one’s hands; to put away, stow
24
away, put into a settled state or position; to deal with (a thing) definitely; to get rid of; to
get done with, settle, finish.” IV OED, p. 820. Also included in the catch-all provision of
“litter,” the verb “discard” means: “2. To cast off, cast aside, reject, abandon, give up.” IV
OED, p. 728.
Given the common understanding of these words, we conclude that the State met its
burden of production. The issue of whether appellant discarded the boats or otherwise
disposed of them was best left to the fact-finder. Notwithstanding appellant’s denials
concerning the Laughing Loon, and his claims of ongoing work on the unnamed houseboat,
there was evidence from appellant’s neighbors and the Natural Resources police that
supported a finding that the houseboats in question constituted “litter” under Criminal Law
§ 10-110.
III.
Finally, appellant contends that separate sentences for littering and abandoning a
vessel are illegal under the rule of lenity and fundamental fairness. The State responds that
appellant’s fundamental fairness argument is unpreserved and his argument under the rule
of lenity is without merit. We conclude that the sentences merge under the rule of lenity.
Generally:
The merger of convictions for purposes of sentencing derives from the
protection against double jeopardy afforded by the Fifth Amendment of the
federal Constitution and by Maryland common law. Nicolas v. State, 426
Md. 385, 400, 44 A.3d 396 (2012). Merger protects a convicted defendant
from multiple punishments for the same offense. Id. Sentences for two
convictions must be merged when: (1) the convictions are based on the same
act or acts, and (2) under the required evidence test, the two offenses are
deemed to be the same, or one offense is deemed to be the lesser included
25
offense of the other. Id. at 400-02, 44 A.3d 396; State v. Lancaster, 332 Md.
385, 391, 631 A.2d 453 (1993).
Brooks v. State, 439 Md. 698, 737 (2014).
We have already discussed the elements of these two offenses. The offenses do not
merge under the required evidence test as neither is a lesser included offense of the other.
Indeed, not only could a person litter items other than “vessels,” but a person could abandon
a vessel without that abandonment constituting the offense of littering.
That does not end our inquiry, however, because the rule of lenity, “applicable to
statutory offenses only, provides that where there is no indication that the [General
Assembly] intended multiple punishments for the same act, a court will not impose
multiple punishments but will, for sentencing purposes, merge one offense into the other.”
Garner v. State, 442 Md. 226, 248 (2015) (citation omitted). Indeed, “[t]he rule of lenity
is a common law doctrine that directs courts to construe ambiguous criminal statutes in
favor of criminal defendants.” Alexis v. State, 437 Md. 457, 484-85 (2014). Further, the
rule “applies only where at least one of the two offenses subject to the merger analysis is a
statutory offense.” Latray v. State, 221 Md. App. 544, 555 (2015). This canon of statutory
construction assumes that “it is reasonable to believe that the legislature that enacted a
particular statute or statutes would express some intent as to multiple punishment.” Id. at
556 (citation omitted). “If the Legislature intended two crimes arising out of a single act
to be punished separately, we defer to that legislated choice,” but when there is uncertainty
“as to what the Legislature intended, we . . . give the defendant the benefit of the doubt.”
Id. at 555 (citation omitted).
26
In this case, the amended charging document charged appellant, from March 4, 2016
through December 20, 2016, at 11672 Greensboro Road, Greensboro, Caroline County,
Md., with: (1) “abandoning or casting adrift vessels to wit: Sea Going 45’ house boat,” in
violation of Natural Resources § 8-725.1; (2) “abandoning or casting adrift vessels to wit:
Laughing Loon house boat,” in violation of Natural Resources § 8-725.1; (3) “unlawfully
dispos[ing] of . . . said litter exceeding 500 lbs in weight/exceeding 216 cubic feet in
volume/being for commercial purposes,” in violation of Criminal Law § 10-110; and, (4)
“unlawfully dispos[ing] of . . . said litter exceeding 500 lbs in weight/exceeding 216 cubic
feet in volume/being for commercial purposes” against the Peace, Government, and
Dignity of the State.
The penalty for abandoning a vessel includes:
(c)(1) Any person who violates any provision of this section is guilty of a
misdemeanor. Upon conviction, the person is subject to a fine not exceeding
$1,000 or imprisonment not exceeding 6 months, or both.
(2) Any person found guilty of a second or subsequent violation of
any provision of this section is subject to a fine not exceeding $2,000 or
imprisonment not exceeding 1 year, or both.
(3) Any person who violates any provision of this section is liable to
the State for the cost of removal of the vessel.
(4) The provisions of this section do not apply to a vessel wrecked
through an act of God or negligence of a third party.
Nat. Res. § 8-725.1.
The penalty provision for littering is as follows:
(f)(1) A person who violates this section is subject to the penalties
provided in this subsection.
27
(2)(i) A person who disposes of litter in violation of this section in an
amount not exceeding 100 pounds or 27 cubic feet and not for commercial
gain is guilty of a misdemeanor and on conviction is subject to imprisonment
not exceeding 30 days or a fine not exceeding $1,500 or both.
(ii) A person who disposes of litter in violation of this section in an
amount exceeding 100 pounds or 27 cubic feet, but not exceeding 500 pounds
or 216 cubic feet, and not for commercial gain is guilty of a misdemeanor
and on conviction is subject to imprisonment not exceeding 1 year or a fine
not exceeding $12,500 or both.
(iii) A person who disposes of litter in violation of this section in an
amount exceeding 500 pounds or 216 cubic feet or in any amount for
commercial gain is guilty of a misdemeanor and on conviction is subject to
imprisonment not exceeding 5 years or a fine not exceeding $30,000 or both.
(3) In addition to the penalties provided under paragraph (2) of this
subsection, a court may order the violator to:
(i) remove or render harmless the litter disposed of in violation of this
section;
(ii) repair or restore any property damaged by, or pay damages for, the
disposal of the litter in violation of this section;
(iii) perform public service relating to the removal of litter disposed
of in violation of this section or to the restoration of an area polluted by litter
disposed of in violation of this section; or
(iv) reimburse the State, county, municipal corporation, or bi-county
unit for its costs incurred in removing the litter disposed of in violation of
this section.
Crim. Law § 10-110.
Based on our review, there is nothing apparent in the statutes that suggests that the
legislature intended to punish the offenses separately, albeit, at one point in its history, the
littering statute included a limited anti-merger provision. In 1971, when the present Litter
Control Law was enacted, Section 468(e)(3) of former Article 27 provided that if “the
violation of a provision of Subsection (d) of this Act also constitutes a violation of another
28
Article of this Code which imposes a more severe punishment, then that punishment may
also be imposed.” See 1971 Md. Laws, ch. 106 (H.B. 28). Even assuming that this section
in former Article 27 might have applied to a section in the Natural Resources Article,
former Article 27 Section 468(e)(3) was deleted in 1993 and replaced with specific
penalties to be imposed upon violators, which penalties remain in effect to this day. See
1993 Md. Laws, ch. 474 (SB 772); see also Crim. Law § 10-110 (f) (3).
The State argues that two sentences were appropriate in this case under the
following reasoning
By leaving the houseboats unattended over a nine-month period in violation
of Nat. Res. § 8-725.1, Roes impeded “the development, use, and enjoyment
of . . . the waters of Maryland.” Nat. Res. § 8-702. When the houseboats
began to break apart, however, Roes additionally “allowed the disposal” of
the houseboats as debris strewn within the Choptank River. Crim. Law § 10-
110(c)(2).
Faced with this argument that appellant was punished for two separate acts, we shall
consider the record. See Johnson v. State, 228 Md. App. 27, 46-47 (“Courts have looked to
the charging document, jury instructions, verdict sheet, and evidence introduced at trial to
determine whether ambiguity existed”) (citation omitted), cert. denied, 450 Md. 120
(2016). If there is ambiguity, it is resolved in favor of the defendant. During opening
statement, the prosecutor explained the case as follows, “[t]hese boats are an eyesore and
they are in a dangerous condition, that’s what I believe you will hear today.” More
specifically:
This case is about boats that were brought to the Choptank River in Caroline
County, Maryland that are in disrepair. One boat is in worst [sic] condition
then [sic] the other, and you’re going to hear about how these boats were
disposed of and abandoned. And the state of disrepair that they’re in, in the
29
Choptank River. How long they’ve been there, and um, you will also hear
about who occupied these boats.
After all the evidence was received, the court instructed the jury on the charges of
abandoning a vessel as follows:
The charges, the defendant is charged with two counts of abandonment of a
vessel, and two counts of littering or dumping material over fifty . . . over
fifty pounds in the waterway. The law is that person may not abandon any
vessel upon any waters of the State. The provision does not apply to a vessel
wrecked through an act of God or negligence of a third party. And
abandoned vessel means that a, means any vessel that has been found adrift
or unattended in or upon the waters of the State. And is found to be in a
condition of disrepair as to constitute a hazard, obstruction to the use of the
waters of the State or presents a potential health or environmental hazard. A
vessel means every description of water craft including an iceboat but not a
sea plane. Excuse me, any water craft that is capable of being used as a
means of transportation on water or ice. A vessel includes a motor, spars,
sales [sic], and accessories of the vessel. Waters of the State means any water
within the jurisdiction of the State.
The court then instructed on the charges of littering:
A person may not dispose, or cause or allow the disposal of litter on a public
or private property unless the property is designated by the State or political
subdivision for the disposal of litter and the person is authorized by proper
public authority to use the property or the litter is placed in a litter receptacle,
or container installed on the property. Public or private property means . . .
means a body of water, or water course on the shores of the beach of the body
of water or the water course. Litter means all rubbish, waste, matter, refuge,
garbage, trash, debris, dead animals or other discarded material of any kind
or description.
During closing, the State argued:
I want you to think about the waterways in Caroline County. And how
important the waterways are to all of us, and that’s not to be taken lightly.
And when you have two boats over five hundred pounds, over forty-five feet
in length just sitting there, sinking, deteriorating over many years, that’s a
problem. It is a problem that is criminal. It’s a problem that the Defendant
is responsible for. It’s a problem that the Defendant has not fixed.
30
Asking the jury to look at the pictures in the record, the prosecutor stated that “these
boats are clearly abandoned and they are material that have been disposed of purposely in
the Choptank River at the Defendant’s property.” And, “I want you to really think about
how those pictures qualifies as abandoned vessels that are being disposed of as litter in the
water, in Caroline County.” Thereafter, after defense counsel argued that one man’s trash
is another man’s treasure, the State responded in rebuttal, “[h]is treasure is rubbish, his
treasure is affecting the water in Caroline County and he doesn’t want to take responsibility
of it.” The State concluded its rebuttal argument as follows:
And when it comes to the statement that a boat cannot be littered or
abandoned, that doesn’t qualified as litter. A boat is made out of material
and any material can be disposed of or be litter. Someone drives by your
house, or drives by, or is in a boat in front of your house and they just throw
trash on your property, it doesn’t matter if they don’t own that property. They
have littered and abandoned that property on your property. They disposed
of property on your property without permission, much like the Defendant
has brought property here to Caroline County and disposed of it, in the waters
of the Choptank River with no intention of getting these boats out of the
water, and that’s material.
We are persuaded that the jury was not asked to separate appellant’s conduct but
rather to consider the same conduct as abandonment and littering. Even if the prosecutor’s
opening and closing could be read consistently with the State’s argument on appeal, our
review reveals no such distinction was made in either the jury instructions or the charges.
Accordingly, appellant’s sentences for abandoning a vessel should be merged into his
sentences for littering. Miles v. State, 349 Md. 215, 229 (1998) (when there is merger under
31
the rule of lenity, the offense carrying the lesser maximum penalty ordinarily merges into
the offense carrying the greater maximum penalty).
SENTENCES FOR ABANDONING A
VESSEL VACATED. JUDGMENTS
OTHERWISE AFFIRMED.
COSTS TO BE PAID ONE HALF BY
APPELLANT AND ONE HALF BY
CAROLINE COUNTY.
32