In Re Antoine M.

WILNER, J.,

dissenting.

With respect, I dissent. The Court has reached out to decide an issue that is not, in fact, presented on this record, and, as a result, has placed the case, petitioner, and the Juvenile Court in somewhat of a legal swamp.

I.

Petitioner was charged in a Juvenile Petition with wanton trespass on the property of Jerry and Jillian Keene on August 26, 2002, in violation of then-Maryland Code, Art. 27, § 577. The Juvenile Petition alleged that petitioner “unlawfully did enter, remain upon and cross over” the Keenes’ property. (Emphasis added). Section 577(a)(2)(h) made it a misdemean- or for a person to “remain on, enter on, or cross over the land, premises, or private property ... of another, after having been duly notified by the owner or the owner’s agent not to do so.” Section 577(a)(2)(iii) stated that “[i]t is intended that this paragraph is only to prohibit any wanton entry and may not be construed to apply to the entry on or crossing over any *512land when the entry or crossing is done under a bona fide claim of right or ownership.”1 (Emphasis added).

The evidence before the Juvenile Court, taken at the adjudicatory hearing on October 16, 2002, was that petitioner, then 16 years old, was a persistent trespasser on the Keene property, apparently for the purpose of visiting the Keenes’ 15-year-old daughter. Mr. and Mrs. Keene initially had no objection to the visits but protested when petitioner refused to leave the home, even at night time. Mr. Keene testified that on several occasions, he offered to drive petitioner home, but that petitioner would remain “around the periphery of the property all night, looking for an opportunity to come in.” At one point, Mr. Keene threatened him with a shotgun.

At the suggestion of the police, Mrs. Keene, in June, 2002, wrote and delivered to petitioner a “no trespassing” note, informing him that he was not welcome on their property and that, if he continued to trespass, she would file charges against him. Petitioner acknowledged receiving that letter and ignoring it. Both Mr. and Mrs. Keene testified that, even after delivery of the letter, petitioner continued to come on the property and into their house. Petitioner alleged that he was dating the Keenes’ daughter and that she invited him to the home. Without objection, Mrs. Keene testified to the contrary — that after the letter was delivered to petitioner, her daughter did not invite him: “Not since he’s been served, she never invited him, no.”2 The daughter was not called to testify and gave no evidence in the case. The instant charges were filed as a result of Mrs. Keene coming home on August 26 and finding petitioner not just on her property but inside her house.

*513Petitioner testified, but had, or professed to have, little recollection of many of the relevant facts. He acknowledged receipt of Mrs. Keene’s “no trespassing” letter but could not remember when he received it. He acknowledged being on the property “a couple of times” thereafter and said that Mrs. Keene actually let him in, but he could not remember when he was there. He was “not sure” whether he was there on August 26 but that “either the 26th or around the 26th” he was allowed by Mr. Keene to sit on the porch. In addition to being “not sure” if he was even on the property on August 26, he was also “not sure,” if he was there, whether Mrs. Keene invited him into the house. Both Mr. and Mrs. Keene testified that petitioner was not invited on to the property after the “no trespassing” notice was delivered to him.3

At the conclusion of the evidence taken at the adjudicatory hearing, defense counsel argued that “the uncontroverted testimony” was that, even after the no-trespassing notice was served on petitioner, “he was invited by the daughter on at least one, or a number of occasions, to come into the home” and that, as a result, “a reasonable person would believe that the previously given notice to ... not come on the property was no longer in effect.” The court immediately and correctly disputed that there was any such “uncontroverted” testimony. After listening to argument, the court found that petitioner had received the no trespassing notice and that “on August 26, 2002, [petitioner] was there, not as an invited guest, but simply because he showed up.” The court added that “[p]erhaps he was given permission by the daughter,” but, even if so, the daughter had no authority to grant such permission after her parents — the owners of the property — gave the no trespassing notice. The court’s ultimate conclusion was “I do *514not find that after delivery of the letter that he was there as an invited guest....” The court accordingly found that petitioner committed the act of trespass and, pending disposition, allowed him to return to his mother’s home on “community detention,” subject to a curfew and other restrictions.

Evidence taken at a pre-adjudication detention hearing in September, 2002, and at the post-adjudication disposition hearing in November indicated that the 16-year-old petitioner was largely out of control. His father was incarcerated in Florida, and he was in the custody of his mother, who testified that she was unable to control his behavior and that he often did not come home at night. She said that “[h]e’s belligerent with us” and that “[h]e’s gone for days and weeks at a time, and then when he returns home, there’s no explanation whatsoever, and he feels as though we shouldn’t ask him where’s he’s been.” At the detention hearing in September, the court was informed that petitioner, who had previously been placed on community detention, had not appeared at any of the scheduled conferences and that his mother did not know where he was. At the disposition hearing, the court was informed of some inappropriate behavior on petitioner’s part while he was on the current community detention. The court accepted the recommendation of the Department of Juvenile Services that petitioner be placed in foster care, subject to certain restrictions.

Petitioner appealed, arguing to the Court of Special Appeals that the Juvenile Court “misapplied the law to the facts in its ruling” and that the evidence was insufficient to support the court’s finding that he committed a trespass. The first argument centered on the trial court’s statement that the daughter did not have the authority to countermand her parents’ no trespassing order. He posited that “[t]he fact that the Keenes’ daughter was a minor does not mean that her invitation to Appellant could not confer upon him a bona fide claim of right to be present at her parent’s house.” That argument necessarily assumed that the daughter had, indeed, invited petitioner on to the property following the no-trespass letter and merely attacked the trial court’s supposed finding that *515such an invitation was insufficient to confer on him a bona fide claim of right to enter the property. The second argument was that, because “the evidence demonstrated that appellant had a bona fide claim of right to be on the property,” he lacked the requisite mens rea to commit a trespass.

With respect to the sufficiency argument, the Court of Special Appeals concluded that, because petitioner failed to renew a motion for “acquittal” at the end of the case, as purportedly required by Maryland Rule 4-324(a), he failed to preserve that argument. The court did address the other argument, however, which it stated was “similar to the first.”

The Court of Special Appeals took issue with petitioner’s view of the trial court’s ruling, which hinged on the court’s statement that “[pjerhaps he was given permission by the daughter” but “I don’t think she has the authority when the legal owners have notified a person that their property, their private property is off limits, that that cannot be countermanded by a teenage daughter.” Given the fact that Mrs. Keene expressly denied that her daughter had given any permission to petitioner to be on the property after the no-trespass letter was delivered to him in June, the appellate court found that the trial court “was merely speculating when it stated that ‘[p]erhaps [appellant] was given permission by the daughter.’ ” The court continued that, even if the trial court believed that the daughter had invited petitioner on to the property after the June letter, “which is not the case” (emphasis added), petitioner “could not have reasonably or honestly believed that he was welcome on the Keene property or in their house.”

In his petition for certiorari, petitioner presented three questions. The first was whether the Court of Special Appeals erred in applying Rule 4-324 to a juvenile delinquency proceeding and thus finding that petitioner failed to preserve his sufficiency of the evidence complaint. The second and third points were essentially the arguments made to the Court of Special Appeals, arguments which erroneously assumed that the trial judge had found that the daughter did invite *516petitioner on to the property but then concluded that such permission was irrelevant.

Two issues are presented on this record — whether the Court of Special Appeals erred in applying Rule 4-324 to a juvenile delinquency proceeding, and, if so, whether the evidence was nonetheless sufficient to sustain the court’s finding of a trespass. In a discussion that consumes two pages and merits no more, this Court correctly holds that Rule 4-324 does not apply to juvenile delinquency proceedings. The rule applies only to criminal cases tried before a jury. The Court of Special Appeals was simply wrong in holding otherwise. As to sufficiency, this Court also concludes that “if the trial judge had found that [petitioner] was ‘aware of the fact that he [was] making an unwarranted intrusion,”’ that finding “may well have been supported by the evidence.” That, of course, is precisely what the trial court did find and that finding not only “may well have been” supported by the evidence but clearly was supported by the evidence. That should be the end of this case.

Instead, the Court has swallowed the petitioner’s bait and assumed that the trial court actually gave some credence to petitioner’s claim that the daughter had continued to invite him on to the property following the June no trespass letter when, in fact, the record shows the exact opposite. Not only was there no testimony from the daughter in support of that claim, upon which petitioner’s entire defense hinged, but it was expressly denied by Mrs. Keene. The Court seems to overlook the fact that, at the appellate level, we must view the evidence in a light most favorable to the prevailing party — the State in this case — and that, under Md. Rule 8-131(c), where, as here, the case was tried by the court, without a jury, we must give due regard to the opportunity of the trial judge to judge the credibility of the witnesses and not set aside the judgment on the evidence unless clearly erroneous. Judge Greene, for the Court of Special Appeals, was absolutely correct in regarding the trial court’s statement that “perhaps” the daughter extended an invitation as mere speculation — an “even if” statement — which, upon a fair reading of the record, *517is all that it was. It certainly was not a fact found by the trial court. Nowhere in this record does the Juvenile Court articulate or even imply a belief that the daughter (or anyone else) invited petitioner on to the property after the June notice was delivered. Absent a finding that the daughter or Mr. or Mrs. Keene actually extended such an invitation, there was no basis whatever for any reasonable or good faith belief that petitioner had a right to be on the property, and petitioner’s argument falls like a house of cards.

II.

The Court’s reaching out to decide an issue that is not presented is bad enough. The effect of that overreach is equally problematic. The trespass occurred in August, 2002. The adjudicatory hearing was held in October, 2002, and the finding of delinquency was made in November of that year. This case was argued before us in May, 2004. The Court now directs that the Juvenile Court’s judgment be vacated and that the case be remanded “for a new juvenile delinquency proceeding at which the court shall decide the case under the standard set forth in Warfield v. State, 315 Md. 474, 554 A.2d 1238 (1989) and its progeny,” i.e., whether petitioner entertained a reasonable belief that his conduct was proper. That necessarily takes the case back to the adjudicatory stage. Apart from the fact that, as I read the trial court’s statement, that was the standard it applied at the adjudicatory hearing, we will now have, because of the appellate delay, not a 16-year old but a nearly 21-year old petitioner returning to the Juvenile Court.

The record shows that petitioner was born on February 8, 1986. By the time this case returns and is likely to be set in for the mandated adjudicatory hearing, he will be close to, or maybe over, 21. The Juvenile Court will lose jurisdiction over petitioner when he turns 21 (see Maryland Code, § 3-8A-07(a) of the Cts. & Jud. Proc. Article), but even if it can act before then, if it confirms its finding that petitioner committed a delinquent act, what is it to do? A finding of delinquency requires proof not only that petitioner committed a delinquent *518act but also that he “requires guidance, treatment, or rehabilitation.” Cts. & Jud. Proc. Art. § 3-8A-01(Z). If the current judgment is vacated, as the Court directs, presumably a new judgment will have to be entered, and that will require a new determination of whether petitioner requires guidance, treatment, or rehabilitation. Is that determination to be made in light of the circumstances existing at the time of the new disposition hearing, or is the court simply to merge into a new finding of delinquent act the long outdated dispositional findings it made in November, 2002? It will have to do one or the other; it can’t leave the matter in limbo, for there will then be no judgment Ordinarily, I expect, if a case is remanded for a new adjudicatory hearing and a new finding of delinquent act is made, the court would need to examine the child’s status as of then, so as not to run the risk of imposing restrictions that once may have been appropriate but are no longer justified or vice versa.

Given that petitioner will be nearly 21 or over that age when the case is reheard, there will be little available for him in the juvenile justice system. As the court’s entire judgment will be vacated, and thus a nullity, could the court, applying the factors set forth in Cts. & Jud. Proc. Article § 3-8A-06(e), decide, based on current circumstances, to waive its jurisdiction and send the case to criminal court?

These questions may arise not from any argument currently made by the parties but only from the Court’s insistence, four years after the event and the judgment and nearly two-and-a-half years after the case was argued before us, on reaching out to address an issue that is not presented. We should either affirm the judgment below or dismiss the certiorari as improvidently granted.

Judge CATHELL has authorized me to state that he joins in this Dissent and Judge HARRELL has authorized me to state that he joins in Part I of this Opinion.

. Given the wording of that sub-paragraph (iii), it would appear that the caveat or limitation did not apply to a person remaining on the property in violation of subsection (a)(2)(ii), but only to those who enter or cross over it.

. The Court characterizes this clear, definitive, unambiguous statement as being "to the best of her knowledge, her daughter had not invited [petitioner] into the home on August 26, 2002.” That is not a fair or accurate statement of what Mrs. Keene actually said.

. The Court places some weight on Mr. Keene's testimony that petitioner was made "welcome” on the property after the no trespass notice was delivered, ignoring entirely the facts that (1) Keene explained that petitioner was not welcome or invited to be on the property and that by using the word "welcome,” he simply meant that he did not use violence to eject the uninvited petitioner, and (2) more important, the Court found as a fact that petitioner was uninvited and had not been welcome onto the property.