Petition for Writ of Certiorari — Daniel Beckwitt, Petitioner v. Maryland

Supreme Court briefAug 22, 2022

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APPENDIX TO PETITION

TABLE OF CONTENTS

Page

Appendix A:

Court of Appeals Opinion

.la

Appendix B:

Court of Special Appeals Opinion,

86b

Appendix C:

Transcript of Motion for Judgment of Acquittal Hearing

in Circuit Court............................................................ ,153c

Appendix D:

Court of Appeals' Order Denying Rehearing

Entered March 25, 2022...........................

Appendix E:

Court of Appeals’ Mandate Issued March 25, 2022

195d

196e

Appendix F:

U.S. Const. Amend. V................

U.S. Const. Amend. XIV............

U.S. Const Art. VI, Cl. 2...........

MD. Const. Decl. Of Rts. Art. V.

6Ann., Ch. 31 §6.......................

10 Ann., Ch. 14, §1.... :...............

12 Geo. Ill, Ch. 73, §37.............

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197f

I97t

;L98f

J.99f

200f

200f

201f

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TABLE OF CONTENTS-Continued

Appendix F—Continued:

14 Geo. Ill, Ch. 78, §86...............................................

MD. Code Annotated, Public Safety

§6-206.......................................................

§6-601.......................................................

§9-106.......................................................

Code of Maryland Regulations

COMAR 29.06.01.01...........................................

COMAR 29.06.01.03...........................................

COMAR 29.06.01.06...........................................

NFPA 1 Fire Code................................................

Montgomery County Fire Safety Code

§22-40.................................................................

201f

202f

204f

205f

,206f

,207f

,208f

209f

211f

Appendix G:

Indictment...........

212g

Bill of Particulars,

213g

Petitioner's Briefing in the Court of Special Appeals...... 215g

Respondent's Briefing in the Court of Special Appeals....221g

Petitioner's Briefing in the Court of Appeals...

223g

Petitioner's Petition for Rehearing

in the Court of Appeals................................

258g

Respondent's Briefing in the Court of Appeals,

260g

April 10, 2019 Trial Transcript Excerpts.........

262g

April 11, 2019 Trial Transcript Excerpts.........

April 12, 2019 Trial Transcript Excerpts.........

April 23, 2019 Trial Transcript Excerpts.........

265g

269g

297g

Circuit Court for Montgomery County

Case No. 133838C

Argued: December 7, 2021

IN THE COURT OF APPEALS

OF MARYLAND

No. 16

September Term, 2021'

DANIEL BECKWITT

v.

STATE OF MARYLAND

Getty, C.J.

McDonald

Watts

Hotten

Booth

Biran

Adkins, Sally. (Senior Judge,

Specially Assigned),

JJ.

Opinion by Watts, J.

Filed: January 28, 2022

Pursuant to Maryland Uniform Electronic Legal Materials Act (§§

10-1601 et seq. of the State Government Article) this document is

authentic. 2022-01-28 12:01-05:00 Suzanne C. Johnson, Clerk

App.la

This case involves the tragic death of twenty-oneyear-old Askia Khafra, who died in a fire while trying

in vain to escape from the reprehensible conditions of

his workplace in the basement of his employer Daniel

Beckwitt’s, Petitioner’s/Cross-Respondent’s, home.

Following a trial in the Circuit Court for Montgomery

County, a jury found Beckwitt guilty of second-degree

depraved heart murder and involuntary manslaughter.

The circuit court sentenced Beckwitt to twenty-one

years’ imprisonment, suspending all but nine years,

with credit for sixty days of time served, for seconddegree depraved heart murder, and merged the

conviction for involuntary manslaughter for

sentencing. Beckwitt appealed, and the Court of

Special Appeals held that the evidence was sufficient

to support the conviction for gross negligence

involuntary manslaughter but insufficient to support

the conviction for depraved heart murder. See

Beckwitt v. State. 249 Md. App. 333, 346, 245 A.3d

201, 209 (2021).

Beckwitt filed a petition for a writ of certiorari

raising four issues—whether the circuit court lacked

subject matter jurisdiction to enter a conviction on

involuntary manslaughter due to old English statutes

concerning a lack of liability for accidental fires,

whether the evidence was sufficient to support the

conviction for involuntary manslaughter, whether legal

duty involuntary manslaughter is a lesser-included

offense of depraved heart murder, and whether the

circuit court erred by failing to correctly instruct the

jury on the elements of legal duty involuntary

manslaughter.

The

State,

Respondent/CrossPetitioner, filed a conditional cross-petition, raising one

issue—whether the evidence was sufficient to support

App.2a

the conviction for second-degree depraved heart

murder. We granted both the petition and conditional

cross-petition.

We answer the questions raised as follows. To begin

with, we reject Beckwitt’s argument that, because the

case involved an accidental house fire, certain old

English statutes deprived the circuit court of subject

matter jurisdiction. In actuality, the argument does

not involve a question of subject matter jurisdiction

and because Beckwitt failed to raise the issue in the

circuit court, the matter is not preserved for appellate

review. Were we to consider the issue, though, we

would determine that the statutes on which Beckwitt

relies do not preclude his prosecution or otherwise

serve as a defense.

Next, we hold that the evidence was sufficient to

support Beckwitt’s conviction for involuntary

manslaughter under both a gross negligence and

failure to perform a legal duty theory of the offense. We

hold that the evidence was sufficient to establish gross

negligence

involuntary

manslaughter because

Beckwitt’s conduct, in causing Khafra to live and work

in dangerous conditions, constituted a gross departure

from that of an ordinarily careful and prudent person

under the same circumstances and a disregard for the

consequences which might ensue and so demonstrated

a wanton and reckless disregard for Khafra’s life.

Beckwitt’s conduct was likely to result in harm to

Khafra at any moment and an ordinarily prudent

person under similar circumstances would have been

conscious of the risk to Khafra. The evidence was

sufficient to establish legal duty involuntary

manslaughter because the evidence demonstrated that

Khafra was Beckwitt’s employee and, as such,

App.3a

Beckwitt had a duty to provide Khafra with a

reasonably safe workplace, which he failed to do with

reckless indifference as to the endangerment of Khafra

and that failure constituted gross negligence.

In addition, we hold that there was sufficient

evidence for the jury to conclude that Beckwitt’s

conduct was both the actual and legal cause of Khafra’s

death. Viewing the evidence in the light most favorable

to the State, the evidence was sufficient for the jury to

have found beyond a reasonable doubt the essential

elements of involuntary manslaughter under both a

gross negligence and legal duty theory.

Because we conclude that the evidence was

sufficient to support Beckwitt’s involuntary

manslaughter conviction under both theories, we need

not reach the issue of whether legal duty involuntary

manslaughter is a lesser-included offense of depraved

heart murder. Nonetheless, we determine that legal

duty involuntary manslaughter is not a lesser-included

offense of depraved heart murder, although gross

negligence involuntary manslaughter is.

We conclude that Beckwitt’s contention that the

circuit court erred or abused its discretion by failing to

instruct the jury as to all of the essential elements of

legal duty involuntary manslaughter is not preserved

for appellate review. If the issue were preserved,

however, we would conclude that the circuit court did

not abuse its discretion in giving the instruction

because it constituted a correct statement of law and

covered the essential elements of the offense.

Finally, in agreement with the Court of Special

Appeals, we hold that the evidence was not sufficient

to support Beckwitt’s conviction for second-degree

depraved heart murder because his conduct, although

App.4a

demonstrating a wanton and reckless disregard for

human life, was not the kind of conduct that was

likely, if not certain, to have caused death, and thus

did not constitute conduct that demonstrated an

extreme indifference to the value of human life.

Beckwitt’s conduct—including having Khafra dig

tunnels beneath his home while living and working in

a basement with electrical power provided by multiple

extension cords and power strips and that was filled

with trash and debris which severely hampered

Khafra’s escape in the event of an emergency—

whether considered individually or cumulatively,

although demonstrating a reckless disregard for

human life, did not constitute conduct that was

reasonably likely, if not certain, to cause death.

Accordingly, we affirm the judgment of the Court of

Special Appeals.

BACKGROUND

This case involves uncommon and, indeed, bizarre

facts which, in its reported opinion, the Court of

Special Appeals set forth in a well-written, thorough,

and detailed manner. See Beckwitt. 249 Md. App. at

347-51, 245 A.3d at 209-11. As there is no material

dispute between the parties about the accuracy of the

facts—although the parties certainly dispute whether

the facts were sufficient to support Beckwitt’s

convictions—we adopt the facts as set forth by the

Court of Special Appeals:

This case involves the tragic death of Askia

Khafra, a twenty-one-year-old who died while

trying to escape a fire in [Beckwitt]’s basement. At

the time of the fire, [Beckwitt] was twenty-six years

old. The unfortunate series of events that brought

App.5a

Khafra and [Beckwitt] together arose from Khafra’s

idea to create a smartphone application or “app”

called Equity Shark. Khafra envisioned Equity

Shark as streamlining the process for average

people to invest in “starter companies” or small

businesses that had not yet gone public and needed

funding. Khafra expended considerable effort in

developing the app. In furtherance of that goal,

Khafra browsed internet chatrooms looking for

investors. Khafra found his first investor—

[Beckwitt]—in such a chatroom.

Khafra pitched his business idea to [Beckwitt],

and explained that he was looking for

approximately $5,000 to go to San Francisco to

apply for a Thiel Fellowship.1 According to the

parties’ briefs, [Beckwitt] invested approximately

$10,000 for a 5% stake in Equity Shark.2 Khafra

and [Beckwitt] went on to develop a close

friendship. Khafra apparently became fascinated

with [Beckwitt] due to [Beckwitt]’s wealth and

financial success. Khafra looked to [Beckwitt] as.

someone who could help him grow Equity Shark,

not just financially, but by assisting with computer

coding and other efforts needed to develop the app

into a viable business. Unfortunately, Equity Shark

never took off as planned, and Khafra was not

accepted for the Thiel Fellowship.

In order to repay [Beckwitt]’s $10,000

investment, Khafra agreed to dig tunnels

underneath [BeckwittJ’s house. [Beckwitt] had been

building tunnels and an underground bunker

beneath his home because he apparently feared a

nuclear war with North Korea.

App.6a

r

Khafra was not the first person to dig tunnels

for

[Beckwitt].

Douglas Hart,

who was

approximately twenty years old at the time,3 dug

tunnels on several occasions from approximately

October 2016 to April 2017. Logistically, Hart

would drive his car to Maryland,4 meet [Beckwitt]

at a McDonald’s, and then [Beckwitt] would require

Hart to wear sunglasses with duct tape on them to

obscure Hart’s vision while [Beckwitt] drove the

two to [Beckwitt]’s home. Despite the fact that

[Beckwitt] actually lived in Maryland, he gave Hart

the impression that they were going to Virginia.

When Hart visited [Beckwitt] to dig tunnels, he

typically stayed in the tunnels and basement area

for approximately a month at a time and

understood that he was not allowed into the rest of

the house. Hart indicated that he was physically

. incapable of leaving the basement/tunnel area, and

that although there was a door from the basement

leading directly to the outside, that door was kept

locked and [Beckwitt] always had the key. When

Hart communicated to [Beckwitt] that he wanted to

go outside for fresh air or to get food, however,

[Beckwitt] would oblige him. Nevertheless,

[Beckwitt] required Hart to wear the duct-taped

sunglasses upon going outside to prevent Hart from

learning the location of [Beckwitt]’s house.

'The transcript incorrectly refers to this as the “Peter Field

Fellowship.” The specifics of the Fellowship itself, however, such

as the age limit, the requirement to drop out of school in order to

attend, and the Fellowship’s general purpose, persuade us that

Khafra was pursuing a “Thiel Fellowship” rather than a “Field

Fellowship,

FAQ,

Thiel

Fellowship.”

See

https://thielfellowship.org/faq/ (last visited Jan. 8, 2021).

App.7a

In early 2017, Khafra began digging tunnels at

[Beckwitt]’s home for $150 a day. [Beckwitt]

typically picked Khafra up at Khafra’s parents’

house in the early morning hours, around 3:00 a.m.,

and like Hart, required Khafra to be blindfolded

during the trip to [Beckwitt]’s house.5 Khafra would

dig underneath [Beckwitt]’s home approximately

once a month to every two months, and would stay

anywhere from a few days to a few weeks at a

time.6 During his stays, Khafra mostly remained in

the bunker area in the tunnels. According to

[Beckwitt]’s brief, “Khafra roamed freely in the

basement and the tunnels, but he was not

permitted to come up to the first or second floors of

the residence.” Rather than take showers, Khafra

cleaned himself using disposable wipes. To relieve

himself, Khafra would urinate and defecate in a

bucket he kept in the tunnels. Every few days,

Khafra and [Beckwitt] used a winch system to haul

the bucket from the basement to the first floor,

where [Beckwitt] himself would dispose of its

contents in the first-floor bathroom. Because

[Beckwitt] did not own a phone, Khafra could only

communicate with [Beckwitt] from the basement

and tunnels using Google apps such as Google

Voice and V Chat.7 [Beckwitt] used numerous

extension cords and power strips to provide electri­

city to the tunnels. In his interviews with police,

2There appears to be some discrepancy regarding the total

amount of [Beckwittfs investment, but that discrepancy is

immaterial to the outcome of this appeal.

3Hart testified at the April 2019 trial that he was twenty-three

years old. From this fact we extrapolate that he was

approximately twenty years old when he began working in

[Beckwitt]’s tunnels in October 2016.

4At trial, Hart indicated that he was living in New York.

App.8a

[Beckwitt] intimated his familiarity with the failing

power cords and having to reset the circuit breaker.

On September 3, 2017, Khafra went to [Beckw­

ith’s home to resume work in the tunnels. A week

later, while digging in the tunnels on September 10

at 2:32 a.m., Khafra messaged [Beckwitt] using

Google Hangouts, stating “holy [s**t] bro there’s no

power down here.” Approximately five minutes

later, at 2:37 a.m., Khafra indicated that there was

smoke in the basement. At 2:51 a.m., Khafra wrote

again, stating that he no longer believed there was

smoke in the basement, but that the lights had

gone out and it was “pitch black down [there]” with

no airflow. Khafra’s message asked [Beckwitt] to

“please try to fix when you see this.”

[Beckwitt] did not see Khafra’s messages until

he woke up at approximately 9 a.m. At 9:27 a.m.,

[Beckwitt] wrote to Khafra that there had been a

“pretty major electrical failure” and that [Beckwitt]

was switching the power over to a different circuit.

[Beckwitt] then went back to sleep, and awoke at

approximately 3 p.m. [Beckwitt] went downstairs

5During a trip to [Beckwitt]’s home, Khafra learned that

[Beckwitt] actually lived in Bethesda, Maryland.

6Khafra’s father testified at trial that he recalled Khafra going

to [Beckwittfs house in January, February, March, April, and

September of 2017.

7“Google Voice” is a program that “gives you a phone number

for

calling,

text

messaging,

and

voicemail.”

https://play.google.com/store/apps/details?id=com.google.

android.apps.googlevoice&=en_US & gl=US (last visited Jan. 8,

2021). “V Chat” is a private messenger service that allows users to

“communicate instantly while avoiding [text messaging] fees[.]” •

https://play.google.com/store/apps/details?

id=com.wVChat_9255903 (last visited Jan. 8, 2021).

App.9a

from his second-floor bedroom to get something to

eat, and at around 4 p.m., he heard a beeping sound

coming from the carbon monoxide detector in the

dining room. [Beckwitt] understood the beep to

signify a loss of power, which he confirmed when he

could no longer hear the refrigerator running,

[Beckwitt] waited approximately twenty to thirty

minutes, believing that the circuit breaker would

reset itself. When the power failed to return,

[Beckwitt] went to the basement to manually reset

the breaker. [Beckwitt] did not see Khafra while in

the basement resetting the breaker.

On his way up the stairs from the basement to

the first floor, [Beckwitt] heard an explosion, which

he believed to be either the refrigerator’s

compressor or the air conditioner. [Beckwitt] went

to the kitchen to see if the refrigerator’s compressor

was working, and immediately saw smoke rising

out of the kitchen floor. [Beckwitt] promptly headed

back to the basement to tell Khafra that there was

a fire, and that Khafra needed to get out. [Beckwitt]

heard Khafra yell “yo dude,” but he could not see

him through all of the smoke. Fearing that he

would not be able to take the basement stairs to the

first floor, [Beckwitt] exited the basement by

unlocking the basement door that led directly to the

outside.8 Because he did not have a cellular phone,

and because it would have been dangerous to

return to his second-floor bedroom to call 9-1-1 from

his computer, [Beckwitt] began to yell for help.

[Beckwitt]’s neighbors called 9-1-1.

Firefighters from Montgomery County Fire and

Rescue Service responded to [Beckwitt]’s home at

approximately 4:23 p.m. The firefighters struggled

App.lOa

to navigate through [Beckwitt]’s home to extinguish

the fire, however, because, as [Beckwitt] concedes,

“[t]he home by all accounts was a hoarder's home.”

Put simply, [Beckwitt]’s home was filled with an

extreme amount of debris, trash, and other objects

that made navigation difficult. In fact, it took

firefighters approximately a minute and a half to

two minutes to traverse the short distance from the

basement’s side entrance to the fire. Firefighters

extinguished the fire with two or three sprays of

water lasting approximately fifteen to thirty

seconds each. When the steam finally cleared,

firefighters found Khafra’s lifeless body in the

middle of the basement.

Beckwitt. 249 Md. App. at 347-51, 245 A.3d at 209-11

(footnotes and some alterations in original).

We include additional facts below as necessary.

Opinion of the Court of Special Appeals

On January 28, 2021, the Court of Special

Appeals

affirmed

Beckwitt’s

conviction

for

involuntary manslaughter, reversed the conviction

for depraved heart murder, and remanded the case

to the circuit court for sentencing on involuntary

manslaughter. See Beckwitt. 249 Md. App. at 346,

245 A.3d at 209. The Court of Special Appeals

concluded that Beckwitt’s conduct, under the totality

of the circumstances, was sufficient to establish gross

negligence involuntary manslaughter. Id* at 362, 245

8Although he could not remember for certain, [Beckwitt]

indicated that he “[thought he] had to” unlock the basement door

to exit. [Beckwitt] could not recall whether the key was already in

the door or whether he had it at the time, but told police it was

“common” to keep the key in the door, original). We include

additional facts below as necessary.

App.lla

A.3d at 218. In reaching this conclusion, the Court of

Special Appeals considered “the inherent danger­

ousness of [Beckwitt’s] act[s], as judged by a reason­

able person[,] combined with environmental risk

factors, which, together, [made] the particular activ­

ity more or less likely at any moment to bring harm

to another[.]” Id* at 362, 245 A.3d at 218 (cleaned

up). The Court of Special Appeals determined that

Beckwitt placed Khafra, who was not an experienced

construction worker, in a dangerous situation by

paying him to dig tunnels beneath his home with

electricity provided by “extension cords and power

strips with an apparent history of failing” and that

Khafra could contact Beckwitt in case of an emerg­

ency only by messages sent through “Google apps” in

the hope that Beckwitt would receive them. Id. at

363, 245 A.3d at 218.

The Court of Special Appeals noted that on the

day of his death when Khafra believed he smelled

smoke, his early morning messages went undetected

for more than six hours until Beckwitt eventually

woke up. See id. at 363, 245 A.3d at 218. The Court

of Special Appeals indicated that Beckwitt deprived

Khafra of exact knowledge of his whereabouts by

blindfolding him in transit to the home, which left

Khafra, who apparently had internet and phone

service, without knowledge of his location to call for

help. See id. at 363, 245 A.3d at 218-19. The Court of

Special Appeals determined that “the amount of

debris and detritus in” the basement contributed to

the environmental risk factors and “elevated the da­

nger by hampering Khafra’s ability to escape in the

event of an emergency.” Id* at 363, 245 A.3d at 219.

The Court of Special Appeals pointed out that

App.l2a

Beckwitt’s conduct on the day of the fire included

that, upon seeing Khafra’s messages at approxim­

ately 9 a.m. regarding a power outage and the possible

odor of smoke, Beckwitt’s sole response was to tell

Khafra that there had been a “pretty major electrical

failure,” and to switch the power to another breaker.

Id. at 364, 245 A.3d at 219. Later, after the carbon

monoxide alarm started to beep, Beckwitt “waited app­

roximately twenty to thirty minutes before finally rese­

tting the circuit breaker despite the fact that the prev­

ious electrical failure had left Khafra in ‘pitch black’

darkness with no airflow .” Mi at 364, 245 A.3d at 219.

The Court of Special Appeals noted that “at no point in

time did [Beckwitt] ask Khafra to leave the basement

for precautionary reasons.” Mi at 364, 245 A.3d at 219.

The Court of Special Appeals determined that the

environmental risk factors and Beckwitt’s conduct in

relation to the risk factors, considered together, “suffic­

iently demonstrate^] the requisite wanton and reck­

less disregard for Khafra’s life necessary to support a

conviction for gross negligence involuntary manslaug­

hter.” Mi at 364, 245 A.3d at 219. The Court of Special

Appeals concluded that the State produced sufficient

evidence of actual causation, because but for Beckwitt

having “Khafra work in a dangerous environment, Kh­

afra would not have died.” Mi at 372, 245 A.3d at 224.

The Court of Special Appeals determined that there

was sufficient evidence of legal causation because, bas­

ed on the facts, “it was foreseeable that a fire might oc­

cur in the basement, and if it did, Khafra’s ability to

safely escape would be severely restricted.” Mi at 373,

245 A.3d at 224.

On the other hand, the Court of Special Appeals

concluded that Beckwitt’s “conduct, viewed in conjunApp.l3a

ction with the surrounding circumstances, d[id] not

satisfy the evidentiary standard required for depraved

heart murder” Id. at 377, 245 A.3d at 227. From the

Court of Special Appeals’s perspective, Beckwitt’s

“conduct itself did not demonstrate an extreme disre­

gard for human life reasonably likely to cause death.”

Id. at 377, 245 A.3d at 227 (emphasis omitted). The

Court of Special Appeals explained:

In our view, hiring someone to dig tunnels under­

neath a hoarder’s home may demonstrate a reck­

less disregard for human life, but it is not the type

of conduct that is likely, if not certain, to cause

death, and thus does not rise to the level of oppro­

brious conduct that depraved heart murder pro­

scribes conduct that is so extreme in its disregard of

human life that it may be deemed willful.

LL at 378, 245 A.3d at 227.

The Court of Special Appeals concluded that it need

not consider whether the evidence was sufficient to su­

pport a conviction for involuntary manslaughter under

the failure to perform a legal duty theory because there

was only one conviction for involuntary manslaughter,

which the Court affirmed on the basis of gross

negligence. See id. at 382 n.21, 245 A.3d at 230 n.21.9

Petition for a Writ of Certiorari

and Conditional Cross-Petition

9In addition, the Court of Special Appeals concluded that the

circuit court did not err with respect to other matters raised on

appeal by Beckwitt, including, among other things, not giving jury

instructions concerning assumption of the risk, knowledge of the

conditions by the victim, and the element of causation, and not

sustaining objections to alleged improper remarks by the

prosecutor during closing argument. See Beckwitt, 249 Md. App.

at 382-401, 245 A.3d at 230-41. These issues are not before us.

App,14a

Beckwitt petitioned for a writ of certiorari, raising

the following four issues:

1. As a matter of first impression, was the evidence

legally sufficient to permit a rational trier of fact to

find that Petitioner was guilty of involuntary mans­

laughter beyond a reasonable doubt for permitting

his friend to work in a home with hoarding

conditions accompanied by power outages?

2. As a matter of first impression, is legal duty

manslaughter a type of gross negligence

manslaughter that serves as a lesser included

offense of depraved-heart murder, thereby

requiring review of Petitioner’s challenges to the

legal duty manslaughter conviction?

3. Did the circuit court commit reversible error by

failing to instruct the essential elements of legal

duty manslaughter, for which there is no pattern

jury instruction?

4. As a matter of first impression, did the circuit

court lack subject matter jurisdiction to enter a

conviction against an occupant of a home on a

common law involuntary manslaughter charge

resulting from an accidental housefire?

The State filed a conditional cross-petition, raising

the following issue: “In an issue of first impression,

does the line separating second-degree depraved heart

murder and gross negligence manslaughter depend

upon the likelihood of death and, if so, was the

evidence sufficient in this case to support the jury’s

verdict of second-degree murder?5 On June 22, 2021,

we granted the petition and conditional cross-petition.

See Beckwitt v. State. 474 Md. 720, 255 A.3d 1090

(2021).

App.l5a

DISCUSSION

I. Subject Matter Jurisdiction

The Parties’ Contentions

Beckwitt’s first contention is as unusual as the

facts of the case. Beckwitt contends that a series of

English statutes from the 1700s leading up to the

enactment of the Fires Prevention (Metropolis) Act of

1774 prohibit today in Maryland a criminal prosecut­

ion “against someone in whose home a fire accidentally

began ” According to Beckwitt, the statutes were in

existence as of July 4, 1776, and courts across the

United States have incorporated them into their

common law. Beckwitt contends that the statutes serve

as a complete bar to any action arising from an accide­

ntal house fire, and, as such, divest the circuit court of

subject matter jurisdiction over the prosecution of this

case. Beckwitt urges this Court to determine that the

old English statutes are a part of the common law of

Maryland today, and that he is “entitled to any defense

that was available by English statute that was

incorporated into Maryland common law.”

The State responds that the 300-year-old statutes

to which Beckwitt refers do not prohibit his prosecution in this case and even if somehow the statues could be

construed as having that effect, the issue is not one of

subject matter jurisdiction. The State points out that a

lack of subject matter jurisdiction occurs where jurisdi­

ction is lacking in a fundamental sense, not where a

trial court makes a ruling in violation of a statutory re­

striction on the courts authority or discretion. The Sta­

te asserts that, because Beckwitt’s contention about

the English statutes does not involve an issue of subje­

ct matter jurisdiction, he was required to raise the iss­

ue in the circuit court and, because he failed to do so,

App.l6a

the contention is not preserved for appellate review.

The State maintains that, even if the issue were prese­

rved, Beckwitt has conceded that the preeminent auth­

ority on the topic has concluded that the Fires Prevent­

ion (Metropolis) Act of 1774 is not applicable in Mary­

land and contends that no other authority supports

Beckwitt’s contention. The State points out that, even

if the Fires Prevention (Metropolis) Act of 1774 were

somehow applicable today in Maryland, it would not

prohibit the prosecution of this case because the actus

reus10 supporting the charges against Beckwitt involv­

ed the creation of dangerous circumstances preventing

Khafra’s escape from the fire-not causing the fire itself.

Standard of Review

It is well settled that a ‘lack of subject matter

jurisdiction may be raised at any time, including

initially on appeal” and “need not be raised by a party,

but may be raised by a court sua sponte.” Derrv v.

State. 358 Md. 325, 334, 748 A.2d 478, 482 (2000)

(cleaned up). See also Md. R. 8-131(a) (“The issueQ of

jurisdiction of the trial court over the subject matter ...

may be raised in and decided by the appellate court

whether or not raised in and decided by the trial

court.”). We review without deference questions of law

involving statutory interpretation. See Gorge v. State.

386 Md. 600, 610, 873 A.2d 1171, 1177 (2005).

I0Black’s Law Dictionary defines “actus reus” as “(t]he

wrongful deed that comprises the physical components of a crime

and that generally must be coupled with mens rea to establish

criminal liability; a forbidden act” and as “[t]he voluntary act or

omission, the attendant circumstances, and the social harm

caused by a criminal act, all of which make up the physical

components of a crime.” Actus Reus, Black’s Law Dictionary (11th

ed. 2019).

App.l7a

Analysis

In agreement with the State, we conclude that

Beckwitt’s contention concerning the English Fires

Prevention (Metropolis) Act of 1774 and earlier

statutes does not raise a question of subject matter

jurisdiction. We are not persuaded by Beckwitt’s

argument that 300-year-old statutes deprived the

circuit court of subject matter jurisdiction in this case.

Subject matter jurisdiction, also called fundamental

jurisdiction, sge Tshiwala v. State. 424 Md. 612, 621,

37 A.3d 308, 313 (2012), “is the court’s ability to adjudi­

cate a controversy of a particular kind[,]” John A. v.

Bd. of Educ. for Howard Ctv.. 400 Md. 363, 388, 929

A.2d 136, 151 (2007) (citation omitted). “If by that law

which defines the authority of the court, a judicial body

is given the power to render a judgment over that class

of cases within which a particular one falls, then its

action cannot be assailed for want of subject matter

jurisdiction.” Tshiwala. 424 Md. at 621, 37 A.3d at 313

(cleaned up). We have expressly recognized the differ­

ence between a court lacking fundamental jurisdiction

and improperly exercising jurisdiction, explaining that

just “[bjecause a court or judge is unauthorized to take

particular action or is erroneously exercising jurisdi­

ction, does not mean that the court or judge does not

have basic subject matter jurisdiction.” Id. at 621, 37

A.3d at 313. We have explained:

Simply because a statutory provision directs a court

to decide a case in a particular way, if certain circu­

mstances are shown, does not create an issue going

to the court’s subject matter jurisdiction. There

have been numerous cases in this Court involving

the situation where a trial court has jurisdiction

over the subject matter, but where a statute directs

App.l8a

the court, under certain circumstances, to exercise

its jurisdiction in a particular way, and the tribunal

erroneously refuses to do so because [of] an error of

statutory interpretation or an error of fact. In these

situations, this Court has regularly held that the

matter did not concern the subject matter juris*

diction of the trial court.

Id. at 622, 37 A.3d at 313-14 (cleaned up).

Maryland circuit courts are courts of general juris­

diction and have “full common-law and equity powers

and jurisdiction in all civil and criminal cases within

[their] county[.]” Md. Code Ann., Cts. & Jud. Proc.

(1974, 2020 Repl. Vol.) (“CJ”) § 1-501. In criminal

cases, with certain exceptions, the circuit courts have

exclusive original jurisdiction over felony offenses. See

CJ §§ 4-302(a), 4-301(b). The Circuit Court for Montgo­

mery County—the circuit court in this case—plainly

had subject matter jurisdiction over Beckwitt’s crimin­

al case because it had the power to render a judgment

with respect to the felony offenses with which Beckwitt

was charged. See Powell v. State. 324 Md. 441, 446,

597 A.2d 479, 482 (1991) (The circuit courts “are courts

of original jurisdiction, authorized to hear all actions

and causes, other than those particularly prescribed by

statute or constitutional provision for other fora.”

(Citations omitted)). Beckwitt’s contention that old En­

glish statutes preclude his prosecution and provide a

complete defense because, according to him, the charg­

es are based on an accidental housefire is, in actuality,

an argument that the 300-year-old statutes compel the

circuit court to exercise its jurisdiction in a particular

way, i.e., that given the circumstances, permitting Bec­

kwitt’s prosecution was erroneous. Under Maryland

law, it is clear that Beckwitt’s prosecution for depraved

App.l9a

heart murder and involuntary manslaughter was not

beyond the circuit court’s subject matter jurisdiction.

Because the issue raised by Beckwitt does not

constitute an issue of subject matter jurisdiction,

Beckwitt was required to raise the issue in the circuit

court to preserve the matter for appellate review. See

Md. R. 8-131(a) (“Ordinarily, the appellate court will

not decide any other issue unless it plainly appears by

the record to have been raised in or decided by the trial

court[.]”). On brief, in a footnote, Beckwitt indicates

that the issue is preserved because, while moving for

judgment of acquittal, his attorney challenged the

circuit court’s “ability to enter a conviction on a

common law. offense that was not cognizable[.]” In

moving for judgment of acquittal, among many other

things, Beckwitt’s counsel stated:

(T]f there was a common law duty to provide a safe,

unobstructed egress from a single-family home, . . .

that common law duty was abrogated by enactment

of the Maryland State Fire Prevention Code, becau­

se the State Fire Prevention Code exempts single­

family homes from its scope. That code is codified in

COMAR 29.06.01. . . . Single-family homes are

specifically exempted from the code, just as smoke

detector statutes .... So it is legally not possible to

provide a basis for these charges by not providing

adequate egress from a single-family home because

there is no statutory or common law duty.

With these remarks, Beckwitt’s counsel did not

mention any old English statutes upon which he now

relies, or otherwise argue, as he does now, that the

statutes precluded Beckwitt’s prosecution.11 A review

of the record leads to the conclusion that Beckwitt’s

contention concerning the Fires Prevention (MetropoApp.20a

lis) Act of 1774 and any other English statute preclud­

ing his conviction in this case is not preserved for

appellate review.

Even if we were to reach the merits, we would conc­

lude that old English statutes did not preclude Beckwitt’s prosecution or serve as a defense. In 1707, an Eng­

lish law was enacted which provided in pertinent part:

That no Action, Suit, or Process whatsoever, shall

be had, maintained, or prosecuted against any

Person in whose House or Chamber any Fire shall,

from and after the said first Day of May, accidenta-.

lly begin, or any Recompence be made by such

Person for any Damage suffered or occasioned

thereby; any Law, Usage, or Custom to the contrary

notwithstandingf.]

6 Ann., Ch. 31, § VI (1707) (italics omitted).12

Eventually, the provision was codified as part of the

Fires Prevention (Metropolis) Act of 1774, which stated

that “no Action, Suit, or Process whatever, shall be

had, maintained, or prosecuted, against any Person in

uWe also note that Beckwitt did not raise the issue he now

raises concerning the alleged lack of subject matter jurisdiction

and applicability of old English statutes on brief in the Court of

Special Appeals.

12Section III of the statute provided in pertinent part, however:

That if any menial or other Servant or Servants, through

Negligence or Carelessness, shall fire or cause to be fired

any Dwelling-house, or Out-house or House, such Servant

or Servants being thereof lawfully convicted by the Oath of

one or more credible Witnesses made before two or more of

her Majesty’s Justices of the Peace, shall forfeit and pay

the Sum of one hundred Pounds unto the Churchwardens

of such Parish where such Fire shall happen, to [be]

distributed amongst the Sufferers by such Fire[.]

6 Ann., Ch. 31, § III (1707).

App.21a

whose House, Chamber, Stable, Bam, or other Build­

ing, or on whose Estate any Fire shall, after the said

twenty-fourth Day of June, accidentally begin[.j”. Fires

Prevention (Metropolis) Act of 1774, 14 Geo. Ill, Ch.

78, § LXXXVI (italics omitted).

As the State points out, historically, there has been

disagreement about the scope of liability for accidental

fires and the Fires Prevention (Metropolis) Act of 1774.

In Koos v. Roth. 652 P.2d 1255, 1263 (Or. 1982), the

Supreme Court of Oregon discussed the status of the

common law of England in 1843 with respect to fires,

explaining that “[a]n early common law action for let­

ting one’s fire escape and injure his neighbor is traced

to [a] 1401 report” and “applied equally to a fire set

outdoors, for burning stubble in a field, as to fire in

one’s house.” (Footnote omitted). The Court observed

that in an 1894 law review article, “Wigmore treated

this action as a form of absolute liability.” XcL at 1264 &

n.ll (footnote omitted). According to the Court, in a

1926 academic journal article, Winfield differed becau­

se a person would not have been ‘liable if he showed

that the fire was the act of a stranger, or an act of

God.” Id* at 1264 & n.12 (cleaned up). In addition, alth­

ough the Supreme Court of Oregon did not note this in

Koos. in the 1894. law review article, Wigmore stated

that, in 1712, “the responsibility for accidental fires in

houses was abolished by the legislature.” John H. Wig­

more, Responsibility for Tortious Acts: Its History —

HI, 7 Harv. L. Rev. 441, 449 (1894) (footnotes omitted).

In a 1996 article in The Journal of Legal Studies,

A.W. Brian Simpson discussed the “obscure” history of

liability for fires, stating:

During the eighteenth century a series of fire

prevention statutes was passed; they include proviApp.22a

sions dealing with fires which began “accidentally.”

In 1774 a comprehensive Fires Prevention (Metro­

polis) Act was passed; section 86 appears to assume

that at common law there might be liability, possi­

bly strict, for fires which escaped from premises but

had not been deliberately kindled, but the provision

is obscure. The underlying assumption seems to

have been that fires which caused damage to

neighbors would normally either have been delibe­

rately kindled, and allowed by negligence to spread,

or have begun through negligence, but that there

might be situations where a fire was accidental in

the sense that it had not spread through negligen­

ce. The Act of 1774 does not clearly indicate what

the standard of liability was then supposed to be,

perhaps for the reason I have explained. However,

Blackstone in his Commentaries (1765-69) thought

that the effect of the Act was to exonerate a house­

holder from liability either for his own negligence or

that of his servant. However, a servant responsible

was made liable to a penalty, with imprisonment in

default of payment. Since serious fires would

commonly leave a potential defendant without

means, tort actions may have had little value.

A.W. Brian Simpson, Coase v. Pigou Reexamined, 25 J.

Legal Stud. 53, 76-77 (1996) (footnotes omitted).

In spite of this history, Beckwitt argues that a

person cannot be prosecuted in Maryland for any crime

related to an accidental housefire, seemingly without

regard to any circumstances surrounding the fire.

Beckwitt’s contention is flawed for any number of

reasons. First, Beckwitt concedes that Kilty’s Report of

the Statutes, the preeminent authority on the topic,

concluded that the Fires Prevention (Metropolis) Act of

App.23a

1774 is not applicable in Maryland.13 Specifically, on

brief, Beckwitt acknowledges: “Candidly, the statutes

relied upon by [him] have not been found applicable by

Kilty ” Although Beckwitt argues that this Court is not

precluded from having a different view from Kilty's,14

13In 1811, pursuant to a resolution of the General Assembly,

William Kilty, the Chancellor of Maryland, made a report to the

body concerning the English statutes applicable to the people of Maryland. Kilty’s English Statutes, 1811, Vol. 143, at 1, available at

https://msa.maryland.gov/megafile/msa/speccol/sc2900/sc2908/000

001/ 000143/html/aml43--l.html [https://perma.cc/R8VG-2F77].

According to the Archives of Maryland Online, the full title of the

report is:

A Report of All Such English Statutes as Existed at the Time

of the First Emigration of the People of Maryland, and Which

by Experience Have Been Found Applicable to Their Local and

Other Circumstances; and of Such Others as Have Since Been

Made in England or Great-Britain, and Have Been

Introduced, Used and Practised, by the Courts of Law or

Equity; and Also All Such Parts of the Same as May Be Proper

to Be Introduced and Incorporated into the Body of the Statute

Law of the State. Made According to the Directions of the

Legislature, by William Kilty, Chancellor of Maryland. To

Which Are Prefixed, an Introduction and Lists of the Statutes

Which Had Not Been Found Applicable to the Circumstances

of the People: with Full and Complete Indexes. Published

under the Directions of the Governor and Council, Pursuant to

a Resolution of the General Assembly.

Id. (some capitalization omitted). In State v. Magliano. 7 Md. App.

286, 293, 255 A.2d 470, 474 (1969), the Court of Special Appeals

referred to Kilty’s as “[t]he only evidence on th[e] subject” of which

English statutes have been found to be applicable in Maryland.

14Beckwitt points to a footnote in Magliano. 7 Md. App. at 293

n.5, 255 A.2d at 474 n.5, in which the Court of Special Appeals

stated: “That Kilty did not regard a statute as ‘applicable’ did not

preclude a court from having a different view.” Significantly, the

Court of Special Appeals noted that one scholar had “found only

two cases, however, in which Kilty’s opinion was overruled[.]” RL

at 293 n.5, 255 A.2d at 474 n.5 (citations omitted).

App.24a

we see no basis on which to diverge from the longprevailing view that the Fires Prevention (Metropolis)

Act of 1774 is not applicable in Maryland.

Even if the Fires Prevention (Metropolis) Act of

1774 were applicable in Maryland, it would not govern

the outcome of this case. Beckwitt fails to appreciate

that he was not convicted of second-degree depraved

heart murder and involuntary manslaughter because

an accidental fire occurred in the basement of his

house. Rather, he was convicted because the evidence

demonstrated that Beckwitt had created conditions in

the basement that severely impeded Khafra’s ability to

report and escape from any potentially life-threatening

situation, which manifested a reckless or wanton

disregard for Khafra’s life.

There is nothing novel about an individual being

prosecuted and convicted for a death resulting from an

accidental fire where the individual created conditions

that caused the death. For instance, in Commonwealth

v. Skufca. 321 A.2d 889, 891, 893-94 (Pa. 1974), the

Supreme Court of Pennsylvania affirmed a defendant’s

conviction for involuntary manslaughter where the

defendant locked her two young children in a room,

without supervision, for several hours, and a fire

started in the building. A visitor was prevented from

rescuing the children due to the locked door, and the

children died of smoke inhalation. See id. at 891, 893.

In Johnson v. State. 801 S.E.2d 294, 295-96 (Ga. Ct.

App. 2017), the Court of Appeals of Georgia affirmed a

defendant’s convictions for involuntary manslaughter

where the defendant left three of her children alone in

a room with a space heater and blocked the

apartment’s hallway with a sofa and access to the

kitchen with a table, and the space heater caught fire

App.25a

and two of the children died of smoke inhalation. In

Commonwealth v. Levesque. 766 N.E.2d 50, 53 (Mass.

2002), the Supreme Judicial Court of Massachusetts

concluded that evidence before the grand jury was

sufficient to support the defendants’ prosecution for

manslaughter where the defendants accidentally

started and failed to report a fire in a warehouse,

which took the lives of six firefighters.

In the cases discussed above, the actus reus suppor­

ting the criminal charges was not the setting of a fire

or that an accidental fire occurred. Rather, the actus

reus was the creation of dangerous circumstances

surrounding the fire, such as preventing young childr­

en from being rescued or starting and failing to report

a fire thereby placing firefighters in danger. Such

conduct supported criminal culpability. The same can

be said of the conduct in this case, where Beckwitt

arranged for Khafra to live, and work in a basement

with a faulty source of electrical power for the

provision of light and ventilation and with no way for

Khafra to immediately communicate with him in the

event of an emergency and with the basement filled

with trash and debris which severely impeded Khafra’s

ability to escape the basement in the event of an

emergency. Beckwitt was not charged, tried, and convi­

cted based on the circumstance that an accidental fire

occurred in the basement of his house. Beckwitt was

charged, tried, and convicted based on his conduct in

creating dangerous conditions from which Khafra

could not escape in the event of an emergency such as

a fire. So, even if the Fires Prevention (Metropolis) Act

of 1774 applied in Maryland, it would not preclude

Beckwitt’s prosecution or otherwise serve as a defense

because the charges in this case were not based on

App.26a

Khafra having lost his life in an accidental fire but

rather on Beckwitt’s conduct in subjecting Khafra, in

wanton and reckless disregard for his life, to the

dangerous conditions that caused his death.

II. Involuntary Manslaughter

The Parties’ Contentions

Beckwitt contends that the evidence was insufficie­

nt to support a conviction for involuntary manslaugh­

ter under either a theory of gross negligence or a theo­

ry of legal duty. Beckwitt argues that the State failed

to demonstrate that his conduct demonstrated a want­

on and reckless disregard for human life, i.e., that his

conduct rose to the level of gross negligence. Beckwitt

maintains that having a person work in a home with

hoarding conditions and power outages is not likely to

cause harm to the person, and that hoarding is not

inherently dangerous conduct. Beckwitt asserts that

there was no legal duty applicable to the circumstances

of the case and that the jury instruction regarding the

duty to provide a safe workplace failed to take into

account that such a duty does not “encompass

providing emergency egress in the event of an

accidental fire” or “providing a smoke alarm.” Beckwitt

also argues that the State failed to provide sufficient

evidence establishing both actual and legal causation.

The State responds that the involuntary manslaug­

hter conviction can be reversed only if there was insuff­

icient evidence under both the legal duty and gross

negligence theories. The State maintains that Beck­

witt’s conduct demonstrated a reckless and wanton

disregard for Khafra’s life and was grossly negligent,

and that Beckwitt failed to perform his legal duty to

provide Khafra with a reasonably safe work environ­

ment, a duty which any employer owes to an employee.

App.27a

The State contends that both legal and actual causat­

ion are satisfied as Khafra’s death would not have

occurred but for Beckwitt’s conduct and his death was

a reasonably foreseeable consequence of such conduct.

Standard of Review

In State v. Wilson. 471 Md. 136, 159, 240 A.3d

1140, 1153 (2020), we described the standard of review

of the sufficiency of evidence as follows:

In determining whether the evidence is legally

sufficient, we examine the record solely to

determine whether any rational trier of fact could

have found the essential elements of the crime

beyond a reasonable doubt. In examining the

record, we view the State’s evidence, including all

reasonable inferences to be drawn therefrom, in the

light most favorable to the State.

(Cleaned up). In reviewing the evidence, we consider

“whether the verdict was supported by sufficient evide­

nce, direct or circumstantial, which could convince a

rational trier of fact of the defendant’s guilt of the offe­

nses charged beyond a reasonable doubt.” White v.

State. 363 Md. 150, 162, 767 A.2d 855, 862 (2001)

(citation omitted). “Circumstantial evidence may supp­

ort a conviction if the circumstances, taken together, do

not require the trier of fact to resort to speculation or

conjecture, but circumstantial evidence which merely

arouses suspicion or leaves room for conjecture is obvi­

ously insufficient.” Smith v. State. 415 Md. 174, 185,

999 A.2d 986, 992 (2010) (cleaned up). “It must afford

the basis for an inference of guilt beyond a reasonable

doubt.” Id* at 185, 999 A.2d at 992 (cleaned up).

Involuntary Manslaughter Generally

App.28a

In Maryland, involuntary manslaughter is a

common law felony generally defined as “the

unintentional killing of a human being, irrespective of

malice.” State v. Thomas. 464 Md. 133, 152, 211 A.3d

274, 285 (2019) (citation omitted). There are three

varieties or theories of involuntary manslaughter: “(1)

unlawful act manslaughter—doing some unlawful act

endangering life but which does not amount to a

felony; (2) gross negligence manslaughter—negligently

doing some act lawful in itself; and (3) the negligent

omission to perform a legal duty.” Mi at 152, 211 A.3d

at 285 (cleaned up). For the latter two variations of

involuntary manslaughter—gross negligence and

negligent omission to perform legal duty—“the

negligence must be criminally culpable[,] i.e., grossly

negligent.” Mi at 152, 211 A.3d at 285 (cleaned up).

In addition, the State must “demonstrate a causal

connection between such gross negligence and death to

support a conviction, although it is not essential that

the ultimate harm which resulted was foreseen or

intended.” Id* at 152, 211 A.3d at 285 (cleaned up). The

causal connection “includes actual, but-for causation

and legal causation.” M» at 152, 211 A.3d at 285; see

also id. at 173, 211 A.3d at 297-98 (“[T]he defendant’s

gross negligence must be the proximate cause of the

victim’s death—meaning the (1) actual, but-for cause

and (2) legal cause.” (Cleaned up)). “[A]ctual cause, or

cause-in-fact, concerns the threshold inquiry of

whether [the] defendant’s conduct actually produced

an injury.” McCauley v. State. 245 Md. App. 562, 575,

227 A.3d 656, 663 (2020) (cleaned up). “For conduct to

be the actual cause of some result, it is almost always

sufficient that the result would not have happened in

the absence of the conduct—or *but for’ the defendant’s

App.29a

actions.” Thomas. 464 Md. at 174, 211 A.3d at 298

(cleaned up).

As to actual causation in gross negligence

involuntary manslaughter cases, in Thomas, we

observed that on only a few occasions have Maryland

cases “evaluated the actual, or but-for, cause of a given

result[.]” Id. at 174-75, 211 A.3d at 298. We discussed

one instance, stating:

In one such case, the Court of Special Appeals

determined that a mutual agreement to engage in

grossly negligent conduct can be sufficient to find

causation, even where the victim was, himself,

engaged in the grossly negligent act. In Goldring v.

State, 103 Md. App. 728, 730-31, 654 A.2d 939[,

940] (1995), two racers, Hall and Goldring,

participated in a drag race on a two-lane country

highway with a posted 45-mile-per-hour speed

limit. During the race, Hall accidently struck the

side of Goldring’s vehicle and lost control of his car.

See id. at 731, 654 A.2d [at 940]. Hall and two

pedestrians were killed. See id. The court concluded

that Goldring’s conduct in competing in the drag

race bore a sufficiently direct causal connection to

Hall’s death to support Goldring’s conviction for

involuntary manslaughter, and Goldring was

convicted in the death of Hall and the two

pedestrians. See id. at 738, 654 A.2d [at 944].

Thomas. 464 Md. at 175, 211 A.3d at 298-99. In Thom­

as, id. at 175, 211 A.3d at 299, we also discussed Palm­

er v. State. 223 Md. 341, 353, 164 A.2d 467, 474 (1960)

—a case in which we stated “that a defendant does not

‘cease to be responsible for his otherwise criminal

conduct because there were other conditions which

contributed to the same result.’” Specifically, we stated:

App.30a

In Palmer, we held a mother liable for gross

negligence involuntary manslaughter when she

failed to prevent her husband’s savage beatings of

her daughter. Significantly, the Court concluded

that it was not necessary that the mother’s grossly

negligent conduct be the sole reason for her

daughter’s death. See Palmer, 223 Md. at 353, 164

A.2d [at 474]. Ultimately, her unwillingness to aid

her child, which was her duty, resulted in the

child’s death and she, too, could be convicted of

involuntary manslaughter. Thus, we took a broader

view of actual cause, implicitly recognizing that the

grossly negligent conduct need only be the but-for

cause of the death, and not an independently

sufficient cause of it.

Thomas. 464 Md. at 175, 211 A.3d at 299.

In Thomas, id. at 178, 211 A.3d at 301, we explain­

ed that “[t]he concept of legal causation is applicable in

both criminal and tort law, and the analysis is parallel

in many instances” and “turns largely upon the forese­

eability of the consequences of the defendant’s conduct.” (Cleaned up). The State is not required to prove

“that the ultimate harm which resulted was actually

foreseen or intended.” Id* at 178, 211 A.3d at 301

(cleaned up). Rather, “[i]t is sufficient that the ultimate

harm is one which a reasonable man would foresee as

being reasonably related to the acts of the defendant.”

Id. at 178, 211 A.3d at 301 (cleaned up).

Gross Negligence Involuntary Manslaughter

With respect to gross negligence involuntary mansl­

aughter, the State must prove that the defendant’s

conduct that resulted in the victim’s death, “under the

circumstances, amounted to a disregard of the conseqApp.31a

uences which might ensue and indifference to the

rights of others, and so was a wanton and reckless

disregard for human life.” Sfate v. Albrecht. 336 Md.

475, 500, 649 A.2d 336, 348 (1994) (cleaned up). The

defendant “must have committed acts so heedless and

incautious as necessarily to be deemed unlawful and

wantonfj” LL at 500, 649 A.2d at 348 (cleaned up).

“The act must manifest such a gross departure from

what would be the conduct of an ordinarily careful and

prudent person under the same circumstances so as to

furnish evidence of indifference to the consequences.”

Thomas. 464 Md. at 153, 211 A.3d at 286 (cleaned up).

“Moreover, the defendant, or an ordinarily prudent

person under similar circumstances, should be

conscious of this risk.” Id* at 154, 211 A.3d at 286

(citations omitted). In Thomas, id. at 160-61, 211 A.3d

at 290, we explained that, in addition to the above

considerations, determining whether an individual’s

conduct constitutes gross negligence

also involves an assessment of whether an activity

is more or less likely at any moment to bring harm

to another, as determined by weighing the inherent

dangerousness of the act and environmental risk

factors. This weighing must amount to a high

degree of risk to human life—falling somewhere

between the unreasonable risk of ordinary

negligence and the very high degree of risk

necessary for depraved-heart murder.

(Cleaned up).

Whether a defendant’s conduct rises to.the level of

gross negligence is a fact-specific inquiry and “[t]here

is no scientific test or quantifiable probability of death

that converts ordinary negligence to criminal gross

negligence.” Id* at 159, 211 A.3d at 289. Instead, “the

App.32a

inherent dangerousness of the act engaged in, as

judged by a reasonable person[,] ... is combined with

environmental risk factors, which, together, make the

particular activity more or less likely at any moment to

bring about harm to another.” I<L at 159, 211 A.3d at

289 (cleaned up). The inquiry into gross negligence is

not limited to an assessment of inherent danger­

ousness and environmental factors; “the defendant, or

an ordinarily prudent person under similar

circumstances, should be conscious of the risk to

others.” M* at 167, 211 A.3d at 294 (citation omitted).

We have indicated that gross negligence involunt­

ary manslaughter generally occurs “in four main

contexts: automobiles, police officers, failure to perform

a duty, and weapons.” Idi at 154, 211 A.3d at 286. In

Thomas, in considering “under what circumstances the

dangers of heroin would justify holding a dealer liable

for involuntary manslaughter for supplying the means

by which his customer fatally overdoses[,]” we discuss­

ed cases involving automobiles, police officers, and

weapons to “create a helpful tableau depicting how we

assess a defendant’s level of negligence.” ML at 139,

154, 211 A.3d at 277, 286.16

In the context of automobiles and gross negligen­

ce,16 we observed that, in Duren v. State. 203 Md. 584,

16Although we recognized that involuntary manslaughter could

involve a failure to perform a duty, in Thomas we did not discuss

this line of cases.

I6In Thomas. 464 Md. at 154, 211 A.3d at 286, although we

recognized that a criminal statute for “manslaughter by vehicle”—

defined “as causing the death of another by driving, operating, or

controlling a vehicle in a grossly negligent manner”—“preempts

any prosecution for such conduct as common law gross negligence

manslaughter,” the cases involving manslaughter by vehicle were

relevant because they involve “the same common law concept and

meaning of gross negligence[.]” (Cleaned up).

App.33a

588-90, 102 A.2d 277, 279-80 (1954), a defendant’s

conduct constituted gross negligence where the defend­

ant operated a vehicle in a reckless manner by speed­

ing in a heavily congested residential • and business

area and struck and killed a pedestrian. See Thomas.

464 Md. at 154-55, 211 A.3d at 286-87. In State v.

Kramer. 318 Md. 576, 586-89, 592-93, 569 A.2d 674,

679-82 (1990), we held that the evidence was sufficient

to support a jury’s finding that the defendant’s conduct

constituted gross negligence where the defendant

while driving in a rural area passed vehicles in a no­

pass zone going at least 75 miles per hour,.while talk­

ing and joking with passengers, and hit an oncoming

vehicle, killing an occupant. See Thomas. 464 Md. at

155-56, 211 Ar3d at 287. By contrast, in Johnson v.

State. 213 Md. 527, 529-30, 132 A.2d 853, 854, 856

(1957), we concluded that the evidence was not suffici­

ent to support a conviction for manslaughter by vehicle

where the defendant, who was driving.-in a non-residential area early in the morning, hit a curb, ,side-swiped

a pole, and ended up in a plot of grass, causing a

passenger to be ejected from the car and . killed. See

Thomas. 464 Md. at 156-57, 211 A.3d at 287-88. At

trial, there was contradictory testimony about the

speed at which the car had been going. See id. at 156,

211 A.3d at 287. Looking at environmental factors

such as “the type of road traveled, the time of day, the

traffic, the density and character of the neighborhood,

and any safety precautions or warnings disregarded,”

we “determined that there was insufficient evidence, to

conclude that the defendant was grossly negligent.” Mi

at 156-57, 211 A.3d at 287-88 (citations omitted).

In Thomas, we also discussed gross negligence invo­

luntary manslaughter cases involving negligent police

App.34a

officer conduct that resulted in death. See id. at 157,

211 A.3d at 288. Although “such cases are evaluated

under a heightened ‘reasonable police officer under the

circumstances’ standard, rather than a reasonably pru­

dent person standard^]” we noted that the. cases prov­

ided “guidance concerning the line between ordinary

and gross negligence.” Id* at 157, 211 A.3d at 288 (cita­

tion omitted). In Albrecht. 336 Md. at 478, 480-82, 649

A.2d 337-39, we held that the evidence was sufficient

to support a conviction for gross negligence involuntary

manslaughter where an officer removed a shotgun

from his vehicle, racked the gun, leveled it at the

victim, and, with his finger on the trigger, intended to

swing the shotgun to aim it at another person, but

instead the gun discharged, and the victim was killed.

See Thomas. 464 Md. at 157-58, 211 A.3d at 288.

Lastly, in Thomas, we discussed Mills v. State. 13

Md. App. 196, 197, 282 A.2d 147, 147 (1971), a case in

which a sixteen-year-old defendant took his father’s

gun with him to a school dance, then went into a

bathroom with friends to look at the gun and drink

liquor. See Thomas. 464 Md. at 159, 211 A.3d at 289.

The defendant, who knew there was one bullet in the

chamber, pointed the gun at his friend, who slapped

the gun from the defendant’s hand, causing it to hit the

floor, discharge, and kill another boy. £gg id* at 159,

211 A.3d at 289. The Court of Special Appeals concl­

uded “that the circumstances plainly demonstrated a

grossly negligent act dangerous to life” and that “the

friend’s reaction when the gun was pointed in his dir­

ection was wholly predictable, and therefore not an

independent supervening cause.” Id* at 159, 211 A.3d

at 289 (cleaned up).

After reviewing the cases discussed above, in

App.35a

Thomas, we concluded that the defendant’s conduct

demonstrated a wanton and reckless disregard for

human life and that the evidence was sufficient to

support a conviction for gross negligence manslaugh­

ter. See id. at 171-72, 211 A.3d at 296-97. The agreed

findings of fact in the case showed that the victim, a

twenty-three-year-old man, died of a heroin overdose.

See id. at 141, 147, 211 A.3d at 278-79, 282. The defen­

dant, a heroin dealer and user, would consume twelve

bags of heroin a day, using four bags for a single shot,

and would travel to Delaware every two to three days

to get his supply of heroin. See id. at 148, 211 A.3d at

283. The defendant had sold heroin to the victim a few

times. See id. at 149, 211 A.3d at 283. In the hours

before he was found dead in the early morning, the

victim called the defendant approximately twentyseven times over the course of twenty-two minutes

and, during the same time span, the victim text mess­

aged the defendant five times. See id. at 145, 169, 211

A.3d at 280-81, 295. This was unusual behavior becau­

se the defendant usually met the victim earlier in the

day to sell him heroin. See id. at 149, 211 A.3d at 283.

The defendant met with the victim and sold him four

bags of heroin—the only time he sold heroin to the vic­

tim around midnight. See id. at 149, 211 A.3d at 283.

In Thomas, we considered “the inherent dangerous­

ness of distributing heroin with the attendant environ­

mental risk factors presented[,]” and observed that,

according to the agreed statement of facts, anyone in

the defendant’s position—who was knowingly engaged

in the unregulated selling of a controlled dangerous

substance to customers in a region suffering from an epidemic of heroin and opioid abuse and deaths

—“would understand the dangers of heroin, and its

App.36a

propensity to harm physically, if not kill, individuals

who are ingesting it” Id* at 167, 211 A.3d at 294

(cleaned up). We determined that it was “fair to infer

that [the defendant] subjectively knew an overdose

was possible based on his statement that [the victim]

‘couldn’t have overdosed off [the amount] I sold him.”’

Id. at 168, 211 A.3d at 295 (last alteration in original).

We concluded that “the consumption of heroin in

unknown strength is dangerous to human life, and the

administering of such a drug is inherently

dangerous[,]” although “distribution, alone, does not

always amount to gross negligence.” Id* at 169, 211

A.3d at 295 (cleaned up).

We noted that the defendant was a “systematic and

sustained heroin distributor!,]” who also abused

heroin himself, not an “infrequent or inexperienced

provider.” Id* at 170, 211 A.3d at 295. From this, we

stated that it could be inferred that the defendant “was

aware of the risk to life posed by consistent heroin

abuse, cognizant of its ill-effects, and, yet, continued to

sell the drug notwithstanding its danger.” Id* at 170,

211 A.3d at 296 (citations omitted). We concluded that

the defendant’s conduct constituted a wanton and

reckless disregard for human life and that the evidence

was sufficient to support the defendant’s conviction for

gross negligence manslaughter beyond a reasonable

doubt. See id* at 171-72, 211 A.3d at ,296-97.

As to causation, we concluded that the defendant’s

conduct—selling four bags of heroin to the victim, who

consumed them—was sufficient to establish actual,

but-for causation, stating: “There is no evidence in the

record that [the victim] could have died without the

heroin, and this is enough to find but-for causation.”

Id. at 178, 211 A.3d at 300 (citation omitted). We also

App.37a

concluded that there was sufficient evidence of legal

causation. See id. at 180, 211 A.3d at 301. We explain­

ed that the State was not required to prove “that the

four bags of heroin were the only reason [the victim]

overdosed and died.” I<L at 180, 211 A.3d at 301. We

stated that “[rjather,.there must be sufficient evidence

in the record to determine that [the victim] would not

have died but for. the heroin and that his death was a

foreseeable consequence of [the defendant] selling him

the four bags of heroin[,]” which the State had

established. LL at 180, 211 A.3d at 301.

In State v. Morrison. 470 Md. 86, 94-95, 233 A.3d

136, 141 (2020), this Court held that the evidence was

not sufficient to support a mother's convictions for .

gross negligence involuntary manslaughter and reck­

less endangerment where a mother co-slept with her

four-month-old infant and her four-year-old daughter,

after an evening of drinking beer with friends virtual­

ly, and the infant died as a result of. asphyxia from

probable overlay. 470 Md. at 94-95, 233 A.3d at 141.

We concluded that the mother did not engage in inher­

ently dangerous conduct and we observed .that the

State did not introduce evidence that the mother was

aware of the risks associated with co-sleeping “or that

a reasonable person under the circumstances would

have appreciated those risks.” Id* at 115, 233 A.3d at

153. Although the evidence showed that the mother

had consumed alcohol, there was insufficient evidence

to support a finding that she was intoxicated or impair­

ed on the night her infant died. See id. at 121, 233 A.3d

at 157. In sum, we concluded that “there was insuffici­

ent evidence of gross negligence—wanton and reckless

disregard for human life— ”and that “the conviction for

involuntary manslaughter was properly reversed.” Id.

App.38a

at 124, 233 A.3d at 158.

Legal Duty Involuntary Manslaughter

In Maryland, it is a longstanding principle that an

employer owes an employee the duty to provide a

reasonably safe place to work. See, e.g.. Athas v. Hill.

300 Md. 133, 139, 476 A.2d 710, 713 (1984) (“Among

the nondelegable duties which the employer owed his

employees was the duty to provide a safe place to

work[.]” (Citations omitted)).

In State v. DiGennaro. 415 Md. 551, 564-65, 3 A.3d

1201, 1208-09 (2010), this Court discussed whether a

defendant could have been convicted of involuntary

manslaughter under a legal duty theory where the

victim's death was not caused by the defendant's negli­

gent operation of a vehicle, but rather by the failure to

clear a roadway of debris that fell from his dump truck.

The Court of Special Appeals had reversed the defend­

ant’s conviction for manslaughter by vehicle and we

affirmed, holding that the definition of the term “oper­

ating” in the manslaughter by vehicle statute is synon­

ymous with the definitions of “drive” and “operate” in

the Transportation Article, such “that a defendant

cannot be convicted of manslaughter by vehicle unless

the victim died as a result of grossly negligent conduct

that occurred while the defendant was actually operat­

ing a vehicle.” frL at 553-54, 563-64, 3 A.3d at 1202,

1208. Although the defendant had not been charged

with legal duty involuntary manslaughter, we discuss­

ed whether he could have been convicted of the offense.

See id, at 564-67, 3 A.3d at 1208-10. We stated:

To convict a defendant of involuntary manslaughter

by grossly negligent failure to perform a legal duty,

the State must prove beyond a reasonable doubt

App.39a

that (1) the victim’s death was caused by the defen­

dant’s failure to perform a duty that the defendant

had a legal obligation to. perform, and (2) the defen­

dant acted in a grossly negligent manner because

the defendant (a) was aware of his or her obligation

to perform that duty, and (b) was aware that his or

her failure to perform that duty would create a high

degree of risk to human life.

DiGennaro. 415 Md. at 566, 3 A.3d at 1210 (citations

omitted).

We explained that the defendant could have been

convicted of legal duty involuntary manslaughter if the

State proved beyond a reasonable doubt that: •

(1) even though his operation of the vehicle was

neither reckless nor negligent, as a result of what

occurred while he had been operating that vehicle,

[the statute] imposed .upon him a duty to take

appropriate remedial measures on behalf of other

users of the highway; (2) he failed to perform that

duty with reckless indifference to the issue of

whether his inaction was endangering other users

of [the road]; and (3) under the circumstances, that

failure constituted gross negligence.

Id. at 564-65, 3 A.3d at 1208-09 (footnotes omitted).

Analysis

We hold that the evidence was sufficient to support

Beckwitt’s conviction for involuntary manslaughter

under either a gross negligence or legal duty theory.17

In assessing the sufficiency of the evidence to support a

conviction for gross negligence involuntary manslaug­

hter, we must determine whether Beckwitt acted with

the mens rea necessary to establish gross negligence,

App.40a

i.e., whether he acted with wanton and reckless disre­

gard for Khafra’s life. This involves a determination as

to whether Beckwitt’s conduct departed from that of an

ordinarily careful and prudent person and demonstr­

ated a disregard of the consequences to Khafra. It also

requires an assessment of whether Beckwitt’s conduct

was likely to bring harm at any moment, i.e., whether

the inherent dangerousness of the conduct combined

with environmental risk factors together made the

conduct more or less likely at any moment to result in

harm to Khafra. See Thomas. 464 Md. at 160-61, 211

A.3d at 290.

Applying this framework, we conclude that the

evidence was sufficient to establish gross negligence

involuntary manslaughter because Beckwitt’s conduct

constituted a departure from the conduct that any

reasonable person would have taken under the

circumstances and demonstrated a disregard of the

consequences to Khafra. On multiple levels, Beckwitt's

conduct constituted a departure from the conduct that

a reasonable person would have engaged in under

similar circumstances. No reasonable person would

have required Khafra to live and work in a basement

with a faulty supply of electricity for light and airflow

and without a reliable way for Khafra to contact him.

No reasonable person would have maintained the

abhorrent conditions that existed in the basement with

debris and trash blocking Khafra’s route out in the

17In this case, the jury was instructed on both the gross

negligence and failure to perform a legal duty type of involuntary

manslaughter. The verdict sheet did not contain a separate

question requiring the jury to choose between the two theories or

otherwise differentiate between the two theories. When the jury

returned its verdict, it returned a general verdict of guilty as to

involuntary manslaughter.

App.41a

event of an emergency. And no reasonable person

would have reacted as casually as Beckwitt did on the

day of the fire upon learning of the two power outages

in the basement.

Beckwitt’s conduct was likely to bring harm to

Khafra at any moment and an ordinarily prudent

person under similar circumstances would have been

conscious of the risk to Khafra. See Thomas. 464 Md.

at 160-61, 211 A.3d at 290. Beckwitt’s conduct, acco­

mpanied by other circumstances, presented a risk of

danger to Khafra. Specifically, the combination of

Beckwitt’s conduct and environmental risk factors that

he created in the basement produced a substantial risk

of harm to Khafra—namely, that he would not be able

to escape from the basement in the event of a fire or

any other emergency. Beckwitt hired Khafra, a young

man with no construction experience, to live

underground for weeks at a time and dig tunnels bene­

ath his home in conditions that could only be described

as extraordinarily unsafe, i.e., dangerous. Electricity to

the tunnels was provided by multiple extension cords

and power strips that had a history of failing and

making the circuit breaker trip. In response to power

outages, Beckwitt would switch the power to a differe­

nt circuit or wait, believing that the circuit breaker

might reset itself, and replace extension cords rather

than make any meaningful improvement to the electri­

city source. A loss of electricity would result in a loss of

both light and ventilation in the tunnels. The failure to

provide reliable electricity alone constituted conduct on

Beckwitt’s part that created a dangerous condition and

an environmental risk factor that made it likely that

working in the basement could result in harm to Khaf­

ra at any moment and created a risk that any reasonaApp.42a

ble person would have been aware of. An ordinarily

prudent person would know that causing someone to

live and work in a basement in which there could be

power outages that result in a lack of light and airflow

would create circumstances, i.e., risk factors, that could

prevent the person from escaping the basement in the

event of an emergency.

The evidence showed that Beckwitt engaged in

conduct that increased the risk of harm by causing

Khafra to work in the basement with no reliable way

to contact him in the event that he was injured or

needed to leave the basement in an emergency. Beck­

witt did not have a cell phone or landline telephone

and Khafra could reach him only through an internet

messaging app. The unreliability of this method of

communication was demonstrated when in the early

morning hours on September 10, 2017, the power first

went out, and Khafra messaged Beckwitt stating that

there was no power and that there was smoke in the

basement; Beckwitt did not see the messages until

over six hours later when he woke up.

Compounding the risk was the circumstance that

Khafra did not know his exact location if he needed to

call for assistance in an emergency. Beckwitt took

deliberate steps to conceal the location of his house.

The evidence at trial showed that Beckwitt actively

sought to hide his address from Khafra and Hart,

another person whom Beckwitt hired to dig in his

basement. In transit to the home, Beckwitt required

Hart to wear sunglasses with duct tape on them and

he required Khafra to be blindfolded, all to obstruct

Hart’s and Khafra’s vision when Beckwitt drove them

to the house. Although Khafra eventually learned that

Beckwitt lived in Bethesda, Beckwitt had nevertheless

App.43a

attempted to conceal the fact. And although Khafra

learned that the house was in Bethesda, he did not

know— and could not know—his exact location

because Beckwitt used a virtual private network such

that, had Khafra tried to use his cell phone’s location

services while connected to Beckwitt’s network, it

would have appeared as if Khafra were in Virginia.

These circumstances obviously would have impeded

Khafra’s ability to call for help in the event of an emer­

gency and are circumstances that an ordinarily prude­

nt person would have known presented a risk of harm.

Adding to the dangerous conditions and environmental

risk factors created by Beckwitt, the basement was

filled with a large amount of trash, construction debris,

and other items. Indeed, the basement was so full of

trash and debris that it took over twenty firefighters,

working eight- to ten-hour days, several weeks to clear

it out. The detritus in the basement was piled six to

seven feet tall, creating a wall of materials on either

side of narrow pathways, which themselves were obst­

ructed with items. To move around in the basement, a

person was required to squeeze through the pathways,

sometimes crawling, pushing, and moving debris to

proceed, and walking on trash that was piled approxi­

mately one-and-a-half to two feet high. The situation in

the tunnels (the area in the basement in which Khafra

would dig) was so dangerous that a fire investigator,

Lieutenant Erin Wirth of Montgomery County Fire

Rescue, a witness for the State, testified that she resp­

onded to the scene the day after Khafra’s death and

was equipped with a mask that covered her entire face,

an air line to oxygen tanks outside the house, a small

oxygen tank on her person, and a safety harness, but

she refused to crawl to the end of the tunnels because

App.44a

she did not feel it was safe to do so.18 According to Dan­

iel Maxwell, a fire origin and cause investigator for

NEFCO Fire Investigations, who testified as an expert

witness for the State, escape from the fire in the base­

ment would have been very difficult given the trash

and debris in the basement. Maxwell testified that

people escaping a fire “instinctively]” get close to the

floor to get below the “layer of hot air and gases.”

Maxwell testified that getting down and crawling

through Beckwitt’s basement would have been

difficult, though, because Khafra would have had “to

crawl over all the debris, all the buckets and the bags

of cement and all the other” items in the basement.

Based on Lieutenant Wirth’s and Maxwell’s testimony,

any rational trier of fact could have concluded that,

given the amount of debris in the basement, Khafra’s

ability to move through the basement was impeded to

the point that he ran out of time to escape the fire. In

other words, a rational trier of fact could have

determined that Beckwitt created conditions in the

basement that prevented Khafra’s ability to get out.

We are wholly unpersuaded by Beckwitt’s content­

ion that “Khafra’s mode of egress was reasonable

under the circumstances” and that “Khafra was not

prevented from escaping the basement[,]” but rather

was simply “slowed down by the hoarding conditions.”

(Cleaned up). Based on the evidence, the jury reason­

ably could have concluded that the conditions that

Beckwitt maintained in the basement impeded

Khafra’s escape to the extent that Khafra was unable

l0Lieutenant Wirth testified that the conditions were unsafe

for her to go to the end of the tunnels “[n]ot just because of shoring

and dirt and all of that, but also the water that had come down

from the firefighting.”

App.45a

to get out of the basement during the fire. In evaluat­

ing the sufficiency of the evidence, our duty is to “exa­

mine the record solely to determine whether any ratio­

nal trier of fact could have found the essential elemen­

ts of the crime.beyond a reasonable doubt ” Wilson. 471

Md. at 159, 240 A.3d at 1153 (cleaned up). “We defer to

any possible reasonable inferences the jury could have

drawn from the admitted evidence and need not decide

whether the jury could have drawn other inferences

from the evidence, refused to draw inferences, or

whether we would have drawn different inferences

from the evidence.” Fuentes v. State. 454 Md. 296, 308,

164 A.3d 265, 272 (2017) (citations omitted).

In this case, on top of all of the other circumstances,

the evidence demonstrated that living conditions in the

basement were atrocious and that, while in the basem­

ent, Khafra was entirely reliant on Beckwitt for food,

basic hygiene, and escape. There were no toilet faciliti­

es. Khafra urinated and defecated in a bucket that Be­

ckwitt emptied every few days. Khafra cleaned himself

using disposable wipes. On the day of the fire, Khafra

was found dead in the tunnels, wearing no clothes.

In addition to the hazardous conditions he establis­

hed in the basement, Beckwitt’s conduct on the day of

the fire demonstrated an indifference to or disregard of

the consequences that might befall Khafra as a result

of the power outages. Khafra messaged Beckwitt early

in the morning on September 10, 2017, beginning at

2:32 a.m., alerting him to a power outage, at 2:37 a.m.,

advising of smoke in the tunnels, and at 2:51 a.m. abo1

ut the darkness and lack of airflow. Beckwitt did not

see the messages until he woke up over six hours later,

at approximately 9:00 a.m. After Beckwitt awoke and

finally saw Khafra’s three messages, despite the conteApp.46a

nt of the messages, he did not respond until 9:27 a.m.,

almost a half hour later. At that time, instead of chec­

king on Khafra or getting Khafra out of the basement

right away, Beckwitt responded by simply telling Khaf­

ra that there had been a “pretty major electrical failure” and that his solution was to “switch [] it all over to a

different circuit.” Beckwitt then went back to sleep for

over five hours. Later that day, at around 4:00 p.m.,

Beckwitt heard the carbon monoxide alarm beep. Beck­

witt understood the beeping sound to be an indication

of another loss of power, which was confirmed when he

did not hear the refrigerator running anymore. Despite

there being another loss of power and knowing from

Khafra’s earlier messages that the previous power out­

age had resulted in Khafra being in the dark with no

airflow, Beckwitt waited twenty to thirty minutes befo­

re going to investigate the outage and reset the circuit

breaker in the basement. As Beckwitt was leaving the

basement, he heard an explosion, saw smoke, and

became aware that the fire had started.

From the evidence produced at trial, the jury reaso­

nably could have concluded that on the day of the fire

when Beckwitt finally went to the basement to reset

the circuit breaker as a result of the second power out­

age, he knew the following: Khafra was alone in the

basement with trash and debris obstructing his ability

to get out; electrical power to the basement was suppli­

ed by a series of extension cords and power strips and

was unreliable; there had been two power outages in

the span of just over twelve hours, one of which he

himself described as a “pretty major electrical failure”;

Khafra had thought he smelled smoke in the basement

during the night; and, Khafra had been without electri­

cal power in the morning and had told him that there

App.47a

was no airflow or light in the basement. Yet, despite

knowing all of this, Beckwitt did not take any steps to

have Khafra leave the basement earlier in the day

before the fire and did not respond promptly to the

second power outage that immediately preceded the

fire. Beckwitt’s conduct on the day of the fire and over­

all conduct in creating unsafe conditions in the base­

ment placed Khafra in a position in which he would

have been at a high risk of harm during a fire or other

emergency. The evidence was sufficient to demonstrate

that Beckwitt possessed enough information to be awa­

re of the risk of harm to Khafra and that on the day of

the fire, he disregarded the risk or, at the very least,

was indifferent to it. An ordinarily prudent person

would have been aware of the risk of harm to Khafra

under the circumstances.

In this case, with certainty, viewing the evidence in

the light most favorable to the State, any rational juror

could have concluded beyond a reasonable doubt, based

on evidence of the dangerous conditions that Beckwitt

created in the basement and his disregard for Khafra’s

safety on the day of the fire, that his “conduct amount­

ed to a wanton and reckless disregard for human life—

a gross departure from the conduct of an ordinarily

prudent person, without regard to the consequences or

the rights of others, and [was] likely to bring harm at

any moment.” Thomas. 464 Md. at 171, 211 A.3d at

296 (cleaned up). Beckwitt not only departed from

conduct that a reasonable person would have taken

under similar circumstances but also demonstrated

both a disregard of the consequences which might

ensue and an indifference to Khafra’s well-being, and

so evinced a wanton and reckless disregard for Khaf­

ra’s life. In sum, the evidence was sufficient for a

App.48a

rational trier of fact to find that Beckwitt’s conduct was

grossly negligent.

Because we conclude that the evidence was suffici­

ent to support Beckwitt’s conviction for involuntary

manslaughter under a gross negligence theory, we

need not necessarily consider whether the evidence

was also sufficient to support a conviction under the

legal duty theory of involuntary manslaughter.19 To

dispel any remaining question concerning the sufficien­

cy of the evidence for Beckwitt’s conviction for involun­

tary manslaughter, however, we address the issue and

determine that the evidence was sufficient for the jury

to have found beyond a reasonable doubt that Beckwitt

failed to fulfill the legal duty to provide Khafra with a

reasonably safe work environment and that the failure

to do so was grossly negligent. To be sure, no Maryland

case has directly addressed whether an employer may

be convicted of involuntary manslaughter under a legal

duty theory. Maryland law is clear, though, that empl­

oyers have a common law duty to provide employees

with a reasonably safe work environment. See Athas.

19In Griffin v. United States, 502 U.S. 46, 47, 49 (1991), in

considering “whether, in a federal prosecution, a general guilty

verdict on a multiple-object conspiracy charge must be set aside if

the evidence is inadequate to support conviction as to one of the

objectsU” the Supreme Court stated that it was a well-settled rule

of criminal procedure “that a general jury verdict was valid so long

as it was legally supportable on one of the submitted grounds^]”

The Supreme Court further stated:

It is one thing to negate a verdict that, while supported by

evidence, may have been based on an erroneous view of the

law; it is another to do so merely on the chance—remote, it

seems to us—that the jury convicted on a ground that was not

supported by adequate evidence when there existed alternat­

ive grounds for which evidence was insufficient.

Id. at 59-60 (cleaned up).

App.49a

300 Md. at 139, 476 A.2d at 713. The evidence was

sufficient to support a conviction for legal duty involun­

tary manslaughter as long as the State proved beyond

a reasonable doubt that Beckwitt was Khafra’s emplo­

yer, that Beckwitt failed to fulfill the duty to provide a

reasonably safe workplace with reckless indifference as

to whether his inaction endangered Khafra, and that,

under the circumstances involved, the failure constit­

uted gross negligence. Cf. DiGennaro. 415 Md. at 56465, 3 A.3d at 1208-09.

In this case, the evidence was sufficient for the jury

to conclude that Beckwitt was Khafra’s employer. Bec­

kwitt paid Khafra $150 per day to live in the basement

and dig tunnels. As such, in accord with Maryland law,

as his employer, Beckwitt owed Khafra the duty of pro­

viding a reasonably safe work environment. Based on

the evidence concerning the conditions that Beckwitt

created and allowed to persist in the basement, there

was more than sufficient evidence, for a reasonable jury

to conclude that Beckwitt failed miserably in fulfilling

the duty to provide Khafra a reasonably safe work

environment.

,

Beckwitt’s contention that he had no common law

duty to install a smoke detector or to provide emerge­

ncy exit in case of an accidental fire is nothing more

than a distraction.20 The installation of a smoke detect­

or or having a designated emergency exit are but two

measures that Beckwitt could have taken to establish

a reasonably safe workplace. The evidence was suffici­

ent to prove that Beckwitt failed in numerous ways to

fulfill the duty to provide Khafra with a reasonably

safe workplace, including by failing to provide reliable

electricity for light and airflow in the workplace, by

failing to provide a reliable method of communication,

App.50a

and by maintaining an excessive amount of debris and

trash in the workplace. In other words, it is of no signi­

ficance that Beckwitt claims he was not required to in­

stall a smoke detector or have an emergency exit as th­

ose are but two measures that could have been taken

to establish a reasonably safe workplace, but were not,

and Beckwitt’s own conduct and other factors contri­

buted to the risk of danger in the work setting.

Similarly, Beckwitt’s reliance on the 19th century

case of Jones v. Granite Mills. 126 Mass. 84 (1878) for

the proposition that the duty to provide a safe workpla­

ce does not include a duty to provide emergency egress

from an accidental fire is not persuasive. In Jones, idat 88-89, the Supreme Judicial Court of Massachusetts

held that the owner of a mill could not be held liable

for failing to ensure that employees escaped a fire whe­

re there was no evidence that the “failure to construct

proper and additional means of exit from a mill in case

of fire in any way contributed to the occurrence of the

fire itself’ or that the owner failed to take proper prec­

autions. In other words, there was no evidence that the

mill owner had been negligent.

id* at 89. The Court

explained: ‘The master is not liable to the servant

unless he has been negligent in something which he

has contracted or undertaken with his servants to do,

“Beckwitt contends that he did not have a duty to utilize

specific fire safety measures, such as installing a smoke detector or

providing emergency egress from an accidental fire. Beckwitt

argues that there is no such duty under the common law. The

State points out:

Beckwitt was not charged with involuntary manslaughter

because he failed to fulfill his legal duty to install a smoke

detector. As the jury was instructed, the State’s legal duty

theory of involuntary manslaughter was based upon

Beckwitt’s failure to fulfill his common law duty to provide

Khafra, his employee, with a reasonably safe place to work.

App.51a

and he has not undertaken to protect him from the

results of casualties not caused by him or beyond his

control.” Id. at 89 (citation omitted).

What Beckwitt fails to take into account is that,

although language in Jones may say that there is no

common law duty for an owner of a building to provide

a particular manner of escape from a fire, the case sta­

nds for the larger principle that an employer who acts

negligently in failing to take proper precautions or who

negligently contributes to the occurrence of the fire

may be liable. Under the theory discussed in Jones.

Beckwitt’s conduct in maintaining an unsafe work

environment that prevented Khafra’s escape from the

fire could fairly be determined to be negligence. Jones

does not conflict with the principle well established in

Maryland law that an employer owes a general duty to

an employee to provide a reasonably safe workplace.

We are more persuaded by the State’s' reliance on

Commonwealth v. Godin. 371 N.E.2d 438, 441-42, 444

(Mass. 1977), a case involving a discussion of an empl­

oyer’s duty of reasonable care and the circumstances

sufficient to demonstrate wanton or reckless conduct.

In Godin, id. at 440, the president of a fireworks manu­

facturing company was convicted of manslaughter for

the deaths of three employees that occurred as a result

of an explosion at the company’s manufacturing plant.

The defendant appealed and the Supreme Judicial

Court of Massachusetts affirmed the convictions. See

id. The defendant argued that the indictments were

insufficient because, as of the time of the explosion, no

court decision held that an employer owed his employ­

ees a duty of reasonable care in the operation and

maintenance of the workplace. See id. At 442.

The Supreme Judicial Court of Massachusetts

App.52a

concluded that involuntary manslaughter, a common

law crime, “is an unlawful homicide unintentionally

caused by an act which constitutes such a disregard of

probable harmful consequences to another as to amou­

nt to wanton or reckless conduct.” Id* (cleaned up). The

Court determined that the indictments were legally

sufficient, holding that “[a]n employer whose acts or

omissions constitute a disregard for the probable har­

mful consequences and loss of life as to amount to wan­

ton or reckless conduct is properly charged with man­

slaughter where a foreseeable death is caused there­

by” I& At 443.

The Court explained that there was evidence prese­

nted from which the jury could conclude that, prior to

the explosion, the amount of fireworks stored in one of

the buildings “had reached unprecedented levels; Q the

defendant had been warned of the dangers posed by

such accumulations; Q nothing was done to remedy the

situation; and Q increments in such storage increased

the risk of explosion and resulting harm[.]” IcL at 444.

The Court concluded that the “evidence, if believed,

would warrant the jury in concluding that the defenda­

nt should have been aware and indeed was aware of

the increased risk of harm and thus his failure to rem­

edy the situation was the kind of conduct which const­

itutes wanton and reckless conduct.” H* The Court

explained that “[rjecklessness involves conscious crea­

tion of a substantial and unjustifiable risk” and, so

long as “the defendant’s conduct was reckless as far as

the risk of explosion was concerned, he must then be

held accountable for the probable consequences of such

conduct.” Id* (citations omitted). See also State v. Far

W. Water & Sewer Inc.. 228 P.3d 909, 927-29 (Ariz. Ct.

App. 2010) (The Court of Appeals of Arizona held that

App.53a

the evidence was sufficient to support a corporation’s

convictions for negligent homicide where a jury could

reasonably conclude that management was “aware of

the substantial and unjustifiable risk of death or physi­

cal injury involved in working in” the sewage treatme­

nt plant and consciously disregarded that risk, and

that management’s conduct “constituted a gross devia­

tion from the standard of care or conduct under a reas­

onable person standard[.]”).

As in Godin, the evidence in this case was sufficient

for a rational juror to conclude that Beckwitt should

have been aware, and was in fact aware, of the risk of

harm to Khafra posed by the deplorable conditions in

the workplace, i.e., the basement, and that his failure

to remedy the conditions was conduct that demonstrat­

ed a wanton and reckless disregard for Khafra’s safety.

Beckwitt hired Khafra to live and work in a basement

filled with trash and debris, with spotty electricity pro­

vided by a series of extension cords and power strips,

and without a reliable manner for Khafra to contact

him. The conditions in the basement made it difficult

to move around. Testimony at trial established that

Khafra would have had to crawl through and climb

over debris, including buckets and bags of cement, to

get out of the basement. Beckwitt created unsafe condi­

tions in the basement that made escape from a fire, or

any other emergency for that matter, difficult if not

impossible and allowed those conditions to exist while

Khafra worked in the basement for weeks at a time.

Moreover, Beckwitt’s conduct on the day of the fire

demonstrated a reckless and wanton disregard for Kh­

afra’s life. Based on all of the above, the.‘jury, could

have concluded that Beckwitt violated his common law

duty to provide a reasonably safe workplace with reckApp.54a

less indifference as to whether his actions or inactions

endangered Khafra and that Beckwitt’s failure to fulfill

his duty constituted gross negligence. ££ DiGennaro.

415 Md. at 564-65, 3 A.3d at 1208-09.

We are not convinced by Beckwitt’s attempt to diff­

erentiate his conduct from that of other defendants

convicted of manslaughter where death resulted from a

fire. Beckwitt’s conduct was as wanton and reckless as

the conduct of defendants convicted of involuntary

manslaughter in other cases. In Commonwealth v.

Welanskv. 55 N.E.2d 902, 904, 906-07 (Mass. 1944),

the defendant owned and operated a nightclub where

several of the emergency exits were locked or blocked

and “[s]ome employees, and a great number of patrons,

died in [a] fire” and others with bums and injuries

from smoke died within a few days. Notably, the Supr­

eme Judicial Court of Massachusetts stated that, to

convict the defendant of manslaughter, the prosecution

did not need to prove that the defendant caused the

fire through wanton or reckless conduct, but instead

that “[i]t was enough to prove that death resulted from

his wanton or reckless disregard of the safety of patro­

ns in the event of fire from any cause.” LL at 912. In

Commonwealth v. Zhan Tang Huang. 25 N.E.3d 315,

318-19, 325, 327 (Mass. App. Ct. 2015), after tenants (a

father and his two young sons) died as a result of a fire

and another tenant (the mother) was severely injured

in the fire, one of the landlords of an apartment build­

ing was convicted of three counts of manslaughter and

four counts of wanton or reckless violation of the State

building or fire code causing serious bodily injury or

death, where the landlord violated numerous code pro­

visions related to fire safety, routinely failed to respond

to requests to repair or replace missing smoke detectApp.55a

ors, and had been warned of the safety risk posed by

not installing smoke detectors.

In People v. Ogg. 182 N.W.2d 570, 571-72 (Mich.

Ct. App. 1970), a mother was convicted of involuntary

manslaughter where she left her two young children

unattended and locked in a windowless room and the

children died from inhalation of carbon monoxide

fumes from a fire. The Court of Appeals of Michigan

held that the defendant’s actions of putting her child­

ren, or at least “allowing them with her knowledge to

be locked, in a small windowless upstairs room, with­

out proper heat, light, food, clothing or bedding, and

without means of escape, and, in reckless disregard of

the consequences of such action, absenting herself from

the home in pursuit of her own business,” rose to the

level of “culpable negligence.” IcL at 575. Although

Beckwitt’s conduct was obviously different than that of

the defendants in these cases, the evidence demonstra­

ted that his failure to provide a reasonably safe workp­

lace was done with reckless indifference as to whether

his conduct endangered Khafra and that a reasonable

person would have been aware of the substantial risk

of danger that Khafra faced.

Turning to causation, we conclude that there was

sufficient evidence of both actual and legal causation.

As to actual, but-for causation, the evidence was suffic­

ient for the jury to have concluded that, but for Beckw­

itt’s conduct, i.e., having subjected Khafra to the dang­

erous conditions that existed in Beckwitt’s basement,

Khafra would not have died in the fire. The jury could

have reasonably inferred that Khafra would have been

able to escape the relatively minor fire but for the circ­

umstance that the basement was full of trash and

debris that impeded Khafra’s ability to move freely

App.56a

about. The jury could also have reasonably inferred

that but for Beckwitt’s failure to promptly respond to

the two electrical failures, Khafra would not have been

trapped in the fire. As the Court of Special Appeals

recognized, although Beckwitt “did not intentionally

set the fire, his disregard for safety, including his refu­

sal to recognize the implications of two electrical failu­

res on the day of the fire, satisfy actual causation.”

Beckwitt. 249 Md. App. at 372, 245 A.3d at 224.

As to legal causation, we are persuaded that the

State produced sufficient evidence demonstrating that

Khafra’s death was a reasonably foreseeable consequ­

ence of Beckwitt’s conduct. A reasonable person would

have been able to discern the risk of danger or harm to

Khafra from the working conditions in the basement.

Although the evidence demonstrated that the fire lik­

ely started as the result of a latent defect in an electri­

cal outlet and that Beckwitt would not have been awa­

re of the defect, it was entirely foreseeable that in a

fire, or any other emergency that might occur in the

basement, due to the numerous unsafe conditions that

Beckwitt allowed to exist, Khafra’s ability to escape

would have been seriously impeded.

In sum, we hold that the evidence was sufficient to

support Beckwitt’s conviction for involuntary manslau­

ghter under both a gross negligence theory and a legal

duty theory As such, we, like the Court of Special

Appeals, affirm the conviction. See id. at 373, 245 A.3d

at 224.

III. Lesser-Included Offense

The Parties’ Contentions

Beckwitt contends that legal duty involuntary man­

slaughter is a type of gross negligence involuntary

App.57a

manslaughter and a lesser-included offense of deprav­

ed heart murder. Beckwitt argues that although there

was not a particularized verdict sheet, the substance of

the State's closing argument leaves little .doubt that

the jury convicted him of “failure to perform a legal

duty gross negligence manslaughter" (not “affirmative

act gross negligence manslaughter^’) and depraved

heart murder based on the allegation that he showed

“extreme disregard” in breaching a legal duty in the

workplace. Beckwitt also asserts that the jury was not

properly instructed as to the elements of the legal duty

theory of involuntary manslaughter, which led to his

conviction of the offense. Although Beckwitt’s content­

ion contains different subparts, at bottom, it appears

that he argues that legal duty involuntary manslaug­

hter is a lesser-included offense of depraved heart

murder, the jury instruction concerning the legal duty

theory was flawed, and his conviction for involuntary

manslaughter must be reversed.

The State responds that the jury instructions given

by the circuit court and the State’s closing argument

conveyed to the jury that the gross negligence and

legal duty theories are distinct theories of involuntary

manslaughter, and only gross negligence involuntary

manslaughter is a lesser-included offense of depraved

heart murder.. The State contends that Beckwitt’s

conviction for depraved heart murder was necessarily

based on his conviction for gross negligence

involuntary manslaughter.

Analysis

As an initial matter, for two reasons, it is not

necessary that we reach this issue. First, we have

concluded that the evidence was sufficient to support

Beckwitt’s involuntary manslaughter conviction under

App.58a

both a gross negligence and a legal duty theory and

next, as discussed below, we affirm the Court of Speci­

al Appeals’s conclusion that the evidence was insuffici­

ent to sustain a conviction for depraved heart murder.

Given these determinations, we need not address Beckwitt’s contention that legal duty involuntary mansla­

ughter is a type of gross negligence involuntary mansl­

aughter and a lesser-included offense of depraved

heart murder, or, for that matter, review the circuit

court’s instruction as to legal duty involuntary

manslaughter.

In evaluating the sufficiency of the evidence, we

have done just as Beckwitt urged and reviewed his

challenge to the legal duty involuntary manslaughter

conviction, set forth the elements of both the legal duty

and gross negligence manslaughter theories (which are

not the same), and determined that the evidence was

sufficient to support a conviction under either theory.

As discussed below, we affirm the Court of Special

Appeals’s reversal of Beckwitt’s conviction for seconddegree depraved heart murder, so it no longer matters

whether or not legal duty involuntary manslaughter is

a lesser-included offense of depraved heart murder.

Nonetheless, to put to rest any lingering question

about the integrity of Beckwitt’s conviction for involun­

tary manslaughter, we will briefly address the issues of

whether legal duty manslaughter is a lesser-included

offense of depraved heart murder and whether the jury

was led to believe that was the case, and review the

challenge to the circuit court’s jury instruction on legal

duty involuntary manslaughter.

Legal duty involuntary manslaughter is not a

lesser-included offense of depraved heart murder. A

key element of legal duty involuntary manslaughter is

App.59a

that the defendant had a legal duty to perform and

failed to do so. The offense of depraved heart murder

contains no such element. The pattern jury instruction

for depraved heart murder sets forth the elements of

the offense as follows:

Second degree murder is the killing of another

person while acting with an extreme disregard for

human life. In order to convict the defendant of

second degree murder, the State must prove: (1)

that the defendant caused the death of (name); (2)

that the defendant’s conduct created a very high

degree of risk to the life of (name); and (3) that the

defendant, conscious of such risk, acted with extre­

me disregard of the life endangering consequences.

MPJI-Cr 4:17.8A. In short, legal duty involuntary

manslaughter has an extra element— the existence of

a legal duty imposed upon the defendant—that

depraved heart murder does not and as such under the

required elements test is not a lesser-included offense.

See State v. Wilson. 471 Md. 136, 178-79, 240 A.3d

1140, 1164 (2020).21

Gross negligence involuntary manslaughter is,

however, a lesser-included offense of depraved heart

murder. It is well-established that gross negligence

involuntary manslaughter is a less culpable form of

depraved heart murder. See Thomas. 464 Md. at 173

n.20, 211 A.3d at 298 n.20 (“[G]ross negligence involu21In Wilson, 471 Md. at 178-79, 240 A.3d at 1164, we explained

the required evidence test, stating: Under the required evidence

test—also known as the same evidence test, Blockburger test, or

elements test—Crime A is a lesser-included offense of Crime B

where all of the elements of Crime A are included in Crime B, so

that only Crime B contains a distinct element. In other words, nei­

ther Crime A nor Crime B is a lesser-included offense of the other

where each crime contains an element that the other does not.

App.60a

ntary manslaughter is a less culpable form of

depraved-heart murder.” (Citation omitted)); Dishman

v. State. 352 Md. 279, 299, 721 A.2d 699, 708 (1998)

(“While our cases have not drawn a precise line

between depraved heart murder and involuntary

manslaughter and we are not called upon to do so in

this case, we observe that the difference is one of the

degree of culpability.ir).22

In this case, the circuit court’s jury instructions

made clear that the gross negligence and legal duty

theories of involuntary manslaughter are separate and

distinct and that only gross negligence involuntary

manslaughter is a lesser-included offense of depraved

heart murder. The circuit court gave the Maryland

Criminal Pattern Jury Instruction for second-degree

depraved heart murder,23 stating:

The defendant is charged with a crime of depraved

heart murder, this charge includes second degree

(Citation omitted).

“We are aware that the Court of Special Appeals stated:

Although depraved heart murder is often described in

terms of being a more culpable manifestation of gross

negligence involuntary manslaughter, we are aware of no

authority that depraved heart murder may only arise from

the grossly negligent modality of involuntary

manslaughter. In other words, it seems possible that the

negligent omission of a lawful duty variety of

manslaughter could, in a proper case, be elevated to the

more culpable crime of depraved heart murder.

Beckwitt. 249 Md. App. at 352 n.10, 245 A3d at 212 n.10. The

remarks by the Court of Special Appeals do not serve to convert

the legal duty theory of involuntary manslaughter into a lesserincluded offense of depraved heart murder. They are merely an

acknowledgement in dicta that in some instances the same

conduct may satisfy the elements of both offenses. While the

offenses may have different elements, they are not mutually

exclusive with respect to conviction.

App.61a

depraved heart murder and involuntary manslaug­

hter. Second degree depraved heart murder is the

killing of another person while acting with an extre­

me disregard for human life. In order to convict the

defendant of second degree depraved heart

murder[,] the State must prove that the defendant

cause [d] the death of Askia Khafra, that defendant’s

conduct created a very high degree of risk to the life

of Askia Khafra and that the defendant conscious of

such risk acted with extreme disregard of the life

endangering consequences.

Immediately after that, the circuit court instructed the

jury on the two theories of involuntary manslaughter

at issue, stating:

Involuntary manslaughter, there are two theories.

The [defendant is charged with the crime of

involuntary manslaughter.

In order to convict the defendant of involuntary

manslaughter!,] the State must prove that the

defendant acted in a grossly negligent manner and

that this grossly negligent conduct caused the

death of Askia Khafra. Grossly negligent means

that defendant, while aware of the risk, acted in a

manner that created a high risk to and showed a

reckless disregard for human life.[24] Or alternative

23See MPJI-Cr 4:17.8A.

24The pattern jury instruction on gross negligence involuntary

manslaughter, MPJICr 4:17.8B, provides:

The defendant is charged with the crime of involuntary

manslaughter. In order to convict the defendant of involuntary

manslaughter, the State must prove:

(1) that the defendant acted in a grossly negligent manner;

and (2) that this grossly negligent conduct caused the death of

(name). “Grossly negligent” means that the defendant, while

aware of the risk, acted in a manner that created a high risk

to, and showed a reckless disregard for, human life.

App.62a

theory, either B or C, if you find that Askia Khafra

and the defendant had an employer/employee

relationship the defendant has a legal duty to

provide his employee with a reasonably safe place

in which to work.

In order to convict the defendant of involuntary

manslaughter!,] the State must prove that the

victim, Askia Khafra, was employed by the

defendant, that defendant failed to perform his

legal duty, that the defendant’s failure to perform

the legal duty caused the death of the victim and

that by failing to perform this legal duty defendant

acted in a grossly negligent manner. Grossly

negligent means that defendant, while aware of the

risk, acted in a manner that created a high risk to

and showed a reckless disregard for human life.

The depraved heart murder jury instruction given

by the circuit court was the pattern jury instruction on

the offense and as such contained language advising

that in order to convict Beckwitt of second-degree

depraved heart murder, among other things, the jury

must find that the “defendant’s conduct created a very

high degree of risk to the life of Askia Khafra and that

the defendant conscious of such risk acted with extre­

me disregard of the life endangering consequences.”

This language mirrored the jury instruction that the

circuit court gave pertaining to the gross negligence

theory of involuntary manslaughter, which referred to

the defendant, while aware of the risk, acting in a

manner that created a high risk to and showing a

reckless disregard for human life. In contrast, the

depraved heart murder jury instruction given by the

circuit court included no mention of the legal duty

theory of manslaughter. In other words, the circuit

App.63a

court did not instruct the jury that in order to convict

Beckwitt of depraved heart murder, the jury must find

that Beckwitt was Khafra’s employer or that Beckwitt

failed to fulfill a legal duty to provide Khafra with a

reasonably safe workplace.

During closing argument, the prosecutor told the

jury that depraved heart murder was a greater offense

of gross negligence involuntary manslaughter. At the

outset of the State’s closing argument, the prosecutor

stated:

So, there are two crimes that you’re going to be

considering, depraved heart murder and involunt­

ary manslaughter and there’s two ways to get to

involuntary manslaughter and either one of them is

up to you. Depraved heart murder, as you heard, it

involves and I’m not going to restate it out but the

main difference is that it involves what’s called a

very high degree of risk to human life and extreme

disregard for the risk taking behavior or for the life

of others and the risk taking behavior.

The main difference between that and one of the

forms of involuntary manslaughter is the word

very, very high degree of risk and involuntary man­

slaughter is high degree of risk, and the word extre­

me. Extreme disregard and involuntary manslaug­

hter reckless disregard. So it’s a matter of degrees

between the depraved heart murder and one of tho­

se ways you can get to involuntary manslaughter.

The other way to get to involuntary manslaugh­

ter is by finding that there was an employer/emplo­

yee relationship between the defendant and the vic­

tim and that therefore he owed him a duty to keep

the workplace safe and he acted with a high degree

of risk and reckless disregard in breaching that

App.64a

duty.

The prosecutor’s explanation of the offenses during

closing argument was consistent with what the circuit

court had essentially instructed—that gross negligence

involuntary manslaughter is a lesser-included offense

of a depraved heart murder.26

IV. Legal Duty Involuntary

Manslaughter Jury Instruction

The Parties* Contentions

Beckwitt contends that a jury instruction on legal

duty involuntary manslaughter must include that the

State is required to prove that: (1) the defendant was

aware of his obligation to perform a legal duty; (2) the

defendant was aware that his failure to perform his

legal duty would create a high degree of risk to human

life; (3) the defendant consciously disregarded his legal

duty; and (4) a reasonable employer in the defendant’s

position would not have disregarded his legal duty; and

that the circuit court’s failure to instruct the jury on

these points constituted reversible error.

“Beckwitt draws our attention to jury notes in the case, in

which the jury asked for an example of second-degree depraved

heart murder and the definition of “extreme disregard” and posits

that, based on the jury notes, “the jury considered the lesserincluded offenses first” meaning that the jury moved upward, first

finding him guilty of legal duty involuntary manslaughter and

then finding him guilty of depraved heart murder. The State

points out that even if Beckwitt is correct that the jury considered

the involuntary manslaughter first, he fails to explain why the

jury would have considered the legal duty theory only and not both

that and the gross negligence theory, especially where the circuit

court instructed the jury on both theories. We agree with the

State. Beckwitt’s contention concerning the jury notes does not

support a conclusion that the jury convicted him only of legal duty

involuntary manslaughter and not gross negligence involuntary

manslaughter.

App.65a

The State points out that Beckwitt did not request

that the circuit court give the instruction on legal duty

involuntary manslaughter that he now claims .was

reversible error for the court not to have given and

argues that the . issue is not preserved for appellate

review. The State contends that, if this Court considers

the merits of the issue, the Court should conclude that

the circuit court’s instruction on legal duty involuntary

manslaughter was a correct statement of law.

Standard of Review

Generally, where a party fails to object to a trial

court’s refusal to give a requested instruction, the issue

is not preserved for appellate review. See, e.g.. Yates v.

State. 429 Md. 112, 130, 55 A.3d 25, 36 (2012) (“In

general, a party must object to the failure to give a

particular instruction promptly after the instructions

are delivered, stating the grounds for the objection.”

(Citation omitted)); Watts v. State. 457 Md. 419, 426,

179 A.3d 929, 933 (2018) (‘This Court has consistently

repeated that the failure to object to an instructional

error prevents a party on appeal from raising the issue

under Rule 4-325([f]).” (Citations omitted)).

“We review a trial court’s decision to propound or

not propound a proposed jury instruction under an

abuse of discretion standard.” Lawrence v. State. 475

Md. 384, 397, 257 A.3d 588, 596 (2021) (citation omitt­

ed). ‘We review de novo whether a jury instruction was

a correct statement of the law.” State v. Elzev. 472 Md.

84, 107, 244 A.3d 1068, 1082 (2021) (citation omitted).

This is so “because even in areas where a triad court

has discretion, no discretion is afforded to trial courts

to act upon an erroneous conclusion of law.” IcL at 107,

244 A.3d at 1082 (cleaned up). Generally, jury insthictApp.66a

ions are reviewed as a whole to determine whether

they fairly or accurately cover the issues and are gene­

rated by the evidence. See Derr v. State. 434 Md. 88,

133, 73 A.3d 254, 281 (2013) (“On review, jury instruct­

ions must be read together, and if, taken as a whole,

they correctly state the law, are not misleading, and

cover adequately the issues raised by the evidence, the

defendant has not been prejudiced and reversal is

inappropriate. Reversal is not required where the jury

instructions, taken as a whole, sufficiently protected

the defendant’s rights and adequately covered the

theory of the defense.” (Citation omitted)).

Analysis

The contention that Beckwitt raises in this Court

concerning the four points of law that he claims a jury

must be instructed on with respect to legal duty involu­

ntary manslaughter is not preserved for appellate revi­

ew as he never asked the circuit court to instruct the

jury on any of the four points. See Md. R. 4-325(f) (“No

party may assign as error the giving or the failure to

give an instruction unless the party objects on the

record promptly after the court instructs the jury, stat­

ing distinctly the matter to which the party objects and

the grounds of the objection.”).26 Even if the issue were

preserved, we would conclude that the circuit court did

not abuse its discretion in instructing the jury as to

legal duty involuntary manslaughter because the

instruction was a correct statement of law and covered

the essential elements of the offense.

The record reflects that prior to trial Beckwitt filed

written objections to the court’s proposed jury instruc­

tions. Beckwitt argued that an instruction on legal

duty involuntary manslaughter should not be given at

App.67a

all because he alleged that he was not charged with

that theory of involuntary manslaughter. Beckwitt

requested that, if the circuit court were to instruct the

jury as to legal duty involuntary manslaughter, the

circuit court instruct the jury on eleven points that he

maintained were related to legal duty. In particular,

Beckwitt requested the following instructions:

1. The mere happening of an injury does not impute

a failure to comply with a legal duty.

2. One cannot be said to have failed to meet one’s

legal duty merely because he failed to provision

against a happening that he could not reasonably

be expected to foresee.

3. An employer is not an insurer of the employee’s

safety nor does he warrant the safety of the

employee.

4. Where there is no evidence that an alleged defect

could have been discovery [sic] by proper

inspection, a sudden and unexpected event affords

no inference of a breach of a legal duty on the part

of the employer[J

5. You may consider whether the employee was

familiar with working conditions prior to the date of

the event.

6. There is no breach of a legal duty where the

alleged perilous working conditions were known

both to the employer and the employee.

7. The legal duty of an employer arises from the

employer’s superior knowledge of the working

conditions from that of the employee.

26Effective July 1, 2021, Maryland Rule 4-325(e) was relettered

as Maryland Rule 4-325(f) without change. See Court of Appeals of

Maryland, Rules Order at 33 (Mar. 30, 2021), available at

https://www.mdcourts.gov/sites/default/files/rules/order/ro206.pdf

[https://perma.ee/7LUV-3ZW].

App.68a

8. An employer’s duty exi[s]ts only when the

dangerous circumstance is known to the employer

and not known [to] the person injured.

9. An employer does not breach [a] legal duty for

failure to warn of a defect not known to the

employer.

10. An employer [] does not breach a legal duty

when injury occurs that is entirely collater[]al to

and not a probable consequence of the work for

which the employee was hired.

11. There must be a causal connection between the

alleged breach of a legal duty and the resulting

injury.

None of the eleven points concern the matters that

Beckwitt now claims the circuit court was required to

instruct the jury on.

In addition, in his written objections, Beckwitt

alleged that the circuit court’s proposed jury instruct­

ion on legal duty involuntary manslaughter was “not a

complete and fair statement of the law” and was mis­

leading in that it advised the jury that “the State must

prove that *by failing to perform a legal obligation, the

defendant acted in a grossly negligent manner.”’ On

brief, Beckwitt contends that, by making these allega­

tions, he preserved for appellate review the issue that

he raises. Regardless of Beckwitt’s contention, the

record reflects that he did not request, either before or

during trial, that the circuit court instruct the jury on

the points that he now claims were necessary.

Beckwitt argues nonetheless that his contention is

preserved because he advised the circuit court that the

proposed involuntary manslaughter instruction “omitt­

ed essential elements” and, as such, permitted the jury

to convict him based solely on finding that he failed to

App.69a

perform a legal duty and the death of the victim. The

problem with Beckwitt’s. contention, however, is that

the purpose of the language in Maryland Rule 4-325(f)

— prohibiting a party from raising on appeal an error

on the trial court’s part in giving or failing to give an

instruction “unless the party objects on the.record

promptly after the court instructs the jury, stating

distinctly the matter to which the party objects and the

grounds of the objection”—“is to give the trial court an

opportunity to correct its charge if it deems correction

necessary.” Sequeira v. State. 250 Md. App. 161, 19697, 248 A.3d 1151, 1172 (2021) (cleaned up). Because

Beckwitt’s written objections to the legal duty

involuntary manslaughter jury instruction did not

include any of the four points he urges as error before

us, the circuit court was deprived of the opportunity to

consider the request and to correct the proposed

instruction if required.

Beckwitt himself apparently recognizes that the

issue is not preserved, requesting that, “[ajssuming,

arguendo, the issue was not preserved,” we exercise

our discretion to consider the matter by engaging in

plain error review. As we stated in Newton v. State.

455 Md. 341, 364, 168 A.3d 1, 14 (2017), “[pjlain error

review is reserved for those errors that are compelling,

extraordinary, exceptional or fundamental to assure

the defendant of a fair trial.” (Cleaned up). Before an

appellate court can exercise its discretion to find plain

error, the following four conditions must be satisfied:

(1) there must be an error or defect—some sort of

deviation from a legal rule—that has not been

intentionally relinquished or abandoned, i.e., affir­

matively waived, by the appellant; (2) the legal err­

or must be clear or obvious, rather than subject to

App.70a

reasonable dispute; (3) the error must have affected

the appellant’s substantial rights, which in the

ordinary case means he must demonstrate that it

affected the outcome of the Q proceedings; and (4)

the error must seriously affect the fairness, integ­

rity or public reputation of judicial proceedings.

Id. at 364, 168 A.3d at 14 (cleaned up). The circumsta­

nces of this case do not satisfy the conditions for plain

error review, as for instance, any error regarding the

instruction was not clear and obvious but rather is

subject to reasonable disagreement as can be seen from

the arguments raised by the State on brief in this

Court, urging that the legal duty involuntary man­

slaughter instruction was a correct statement of law.

Even though the issue is not preserved for appell­

ate review nor a matter that qualifies for plain error

review, we nonetheless address the matter and deter­

mine that the legal duty involuntary manslaughter ju­

ry instruction given by the circuit court was a correct

statement of law. The circuit court instructed the jury

that, to convict Beckwitt of legal duty involuntary ma­

nslaughter, the State was required to prove that Khafra was employed by Beckwitt, that Beckwitt failed to

perform his legal duty to provide Khafra with a reason­

ably safe workplace, that Beckwitt’s failure to perform

the legal duty caused Khafra’s death, and that Beckwi­

tt acted in a grossly negligent manner by failing to per­

form his legal duty, meaning that Beckwitt, while awa­

re of the risk, acted in a manner that created a high

risk to and showed a reckless disregard for human life.

Beckwitt contends that the circuit court erred in

not instructing the jury that the State was required to

prove that he had knowledge of the duty owed to Khaf­

ra. However, our case law demonstrates that the State

App.71a

was required to prove that Beckwitt had knowledge of

the facts that gave rise to the obligation to perform the

duty, not that the State was required to prove that

Beckwitt had knowledge of the statutory, common law,

or constitutional basis for the creation of the duty. Cf.

DiGennaro. 415 Md. at 564, 3 A.3d at 1208 (In stating

that the defendant could have been convicted of legal

duty involuntary manslaughter, we stated that a

statute imposed on the defendant a duty to take appro­

priate remedial measures, not that the defendant had

to be aware of the statute.).

In State v. Kanaw. 416 Md. 1, 4-5, 4 A.3d 991, 99293 (2010), five defendants, who were employees of a

juvenile detention facility, were each charged with

reckless endangerment after a juvenile died at the

facility while they were on duty and they failed to

contact emergency services in a timely manner. The

defendants filed motions to dismiss the indictments,

arguing that the reckless, endangerment statute does

not proscribe the failure to act. See id. at 4, 4 A.3d at

993. The circuit court granted the motions and the

Court of Special Appeals affirmed. See id. at 4, 4 A.3d

at 993. We reversed and remanded the case for trial,

concluding “that the conduct proscribed by the reckless

endangerment statute includes the wilful failure to

perform a legal duty.” Id. at 5, 10-11, 4 A.3d at 993,

996. We explained that, to convict a defendant of

reckless endangerment as charged in the indictment,

the State would be required to prove beyond a reason­

able doubt, among other things, that the defendant

owed a duty to obtain emergency medical care for the

juvenile and that the defendant “was aware of his

obligation to perform that duty[.]” Id. at 12-13, 4 A.3d

at 997. We stated that none of the defendants could be

App.72a

convicted of reckless endangerment based on force

used against the juvenile, but evidence of injuries

sustained by the juvenile would be admissible “for the

limited purpose of establishing the [defendants’

awareness of the duty to obtain emergency services for

the deceased.” Id* at 12 n.2, 4 A.3d at 997 n.2.

Applying the same analysis to this case, it is clear

that the State was not required to prove that Beckwitt

knew that as an employer he had a legal duty to provi­

de an employee with a reasonably safe working enviro­

nment. Rather, the State needed to prove that Beckwi­

tt had knowledge of the employer-employee relation­

ship and knowledge of the dangerous conditions of Khafra’s work environment that gave rise to the duty to

correct or eliminate the unsafe conditions. If we were

to conclude otherwise and require that a defend-ant

have actual knowledge of the existence of a statutory

or common law duty, we would, as the State points out,

in essence hold that ignorance of the law is a defense.

Two of the other points raised by Beckwitt—that

the circuit court needed to instruct the jury that the

State was required to prove that he was aware that his

failure to perform his legal duty would create a high

degree of risk to human life, and that he consciously

disregarded his legal duty—were covered by the circuit

court’s instruction. The circuit court instructed the jury

that the State was required to prove that, in failing to

perform his legal duty, the defendant acted in a grossly

negligent manner, which the circuit court described as

meaning that the “defendant, while aware of the risk,

acted in a manner that created a high risk to and

showed a reckless disregard for human life.” The jury

instruction given by the circuit court covered all of the

essential elements of legal duty involuntary manslauApp.73a

ghter and was a correct statement of the law.27 In sum,

the circuit court did not err in giving the legal duty

involuntary manslaughter jury instruction.

V. Depraved Heart Murder

The Parties’ Contentions

The State contends that the evidence was sufficient

to support the conviction for second-degree depraved

heart murder because the evidence established that

Beckwitt’s conduct was reasonably likely or certain to

result in death. The State asserts that in reviewing the

sufficiency of the evidence, “the Court of Special

Appeals overlooked or devalued a number of salient

facts and failed to consider all of the facts

cumulatively!,]” including the danger of the tunnels,

and the conditions in the basement, which, according

to the State, were inherently dangerous.

For his part, Beckwitt responds that the Court of

Special Appeals was correct in concluding that

depraved heart murder requires conduct that must be

reasonably likely, if not certain, to cause death, and in

determining that the evidence in this case was

insufficient to satisfy that element of the offense.

Beckwitt argues that none of his “conduct was

inherently dangerous, let alone likely fatal, even in the

totality.” Beckwitt asserts that neither the tunnels, the

hoarding conditions in the basement, nor the use of

multiple extension cords, whether considered

individually or cumulatively, were likely, or certain, at

any moment to cause death.

27As to the fourth point, although Beckwitt contends that the

circuit court was required to instruct that a reasonable employer

in his position would not have disregarded his legal duty, this is

not one of the elements of legal duty involuntary manslaughter.

415 Md. at 566, 3 A.3d at 1210.

App.74a

Law

We have described depraved heart murder as “one

of the unintentional murders that is punishable as

murder because another element of blameworthiness

fills the place of intent to kill.” Robinson v. State. 307

Md. 738, 744, 517 A.2d 94, 97 (1986) (cleaned up).

Depraved heart murder constitutes “the form of murd­

er that establishes that the willful doing of a dangero­

us and reckless act with wanton indifference to the

consequences and perils involved, is just as blamewort­

hy, and just as worthy of punishment, when the harmf­

ul result ensues, as is the express intent to kill itself.”

Id. at 744, 517 A.2d at 97 (cleaned up). “The critical

feature of depraved heart murder is that the act in qu­

estion be committed under circumstances manifesting

extreme indifference to the value of human life.” Id* at

745, 517 A.2d at 98 (cleaned up). We elaborated:

A depraved heart murder is often described as a

wanton and wilful killing. The term ‘depraved hea­

rt’ means something more than conduct amounting

to a high or unreasonable risk to human life. The

perpetrator must or reasonably should realize the

risk his behavior has created to the extent that his

conduct may be termed wilful. Moreover, the condu­

ct must contain an element of viciousness or conte­

mptuous disregard for the value of human life whi­

ch conduct characterizes that behavior as wanton.

Id. at 745, 517 A.2d at 98 (cleaned up). Similarly, in

DeBettencourt v. State. 48 Md. App. 522, 530, 428 A.2d

479, 484, cert, denied. 290 Md. 713 (1981), the Court of

Special Appeals explained that depraved heart murder

involves “the deliberate perpetration of a knowingly

dangerous act with reckless and wanton unconcern

and indifference as to whether anyone is harmed or

App.75a

not.”

In In re Eric F.. 116 Md. App. 509, 519, 698 A.2d

1121, 1126 (1997), the Court of Special Appeals reiter­

ated that “[t]he essential element of depraved heart

murder is that the act in question be committed under

circumstances manifesting extreme indifference to the

value of human life.” (Cleaned up). Thus, the key ques­

tion to consider “is whether the defendant engaged in

conduct that created a very high risk of death or seri­

ous bodily injury to others.” Id* at 519, 698 A.2d at

1126 (cleaned up). Depraved heart “murder may be

perpetrated without the slightest trace of personal illwill” and, instead, “the willful doing of a dangerous

and reckless act with wanton indifference to the conse­

quences and perils involved, is just as blameworthy,

and just as worthy of punishment, when the harmful

result ensues, as is the express intent to kill itself.” Id.

at 520, 698 A.2d at 1126 (cleaned up).

In Pagotto v. State. 127 Md. App. 271, 276, 732

A.2d 920, 923 (1999), affd, 361 Md. 528, 762 A.2d 97

(2000), the Honorable Charles E. Moylan Jr. stated

that “[o]n the matrix of blameworthy states of mind

that will support a verdict of either civil liability or

criminal guilt on the part of an unquestioned homicidal

agent, one of those mental states is” where the “agent

causes an unintended death by carelessly or negligent­

ly doing some act lawful in itself.” (Cleaned up). “At the

bottom end of the culpability scale is mere civil liability

for a wrongful death,” i.e., civil negligence, “where

there may be uncontestable fault and perhaps heavy

civil liability but still something less than criminality.”

Id. at 276, 732 A.2d at 923. Higher up on the “scale of

blameworthy negligence are those more gross devia­

tions from the standard of care used by an ordinary

App.76a

person where the negligent conduct can reasonably be

said to manifest a wanton or reckless disregard of

human life.” Id* at 277, 732 A.2d at 923 (cleaned up).

Such conduct constitutes gross negligence involuntary

manslaughter. £ge id* at 277, 732 A.2d at 923. Finally,

highest up on the scale of blameworthy negligence “are

those acts of a life-endangering nature so reckless that

they manifest a wanton indifference to human life.

That level of blameworthiness constitutes seconddegree murder of the depraved-heart variety.” IsL at

277, 732 A.2d at 923.

As to the line distinguishing gross negligence invol­

untary manslaughter from second-degree depraved

heart murder, Judge Moylan stated that “Maryland

case law has yet provided no meaningful distinction ...

. As an abstract matter, however, we know that there

is—somewhere—such a line. There must be or else

there is no legally cognizable distinction between mur­

der and manslaughter.” ItL at 277, 732 A.2d at 923-24.

Although the line between depraved heart murder and

gross negligence involuntary manslaughter may not be

well defined, as the Court of Special Appeals in this

case recognized, Maryland case law demonstrates that

the line between the two offenses “appears to be as

follows: depraved heart murder requires an extreme

indifference to the value of human life, whereas gross

negligence involuntary manslaughter requires only a

wanton and reckless disregard for human life[J”

Beckwitt. 249 Md. App. at 355, 245 A.3d at 214

(cleaned up).

In Simpkins v. State. 88 Md. App. 607, 608-09, 619,

596 A.2d 655, 655-56, 661 (1991), cert, denied. 328 Md.

94, 612 A.2d 1316 (1992), the Court of Special Appeals

affirmed the second-degree depraved heart murder

App.77a

convictions of a mother and father whose two-year-old

child died of malnutrition and dehydration. The evide­

nce showed that the child lived with her parents and

her four-year-old sister, and that a houseguest who

had been living with the family realized that he had

not seen the child in more than a day, went into her

bedroom, and discovered that she was not moving. See

id. at 609, 596 A.2d at 656. According to the medical

examiner, the child died of malnutrition and dehydra­

tion as she “had not been given food or drink for three

to five days.” Mi at 609, 596 A.2d at 656. Moreover, the

child was discovered in a dirty diaper containing about

three-quarters of a pound “of layered fecal material!,]”

and the medical examiner believed that the diaper had

not been changed in four to six days. Id* at 609, 596

A.2d at 656. Although the child was permitted to star­

ve to death, the evidence demonstrated it was not due

to the parents’ inability to provide food, as the “refrige­

rator was crammed full of food, and they and [the older

child] apparently ate quite well.” Id* at 610, 596 A.2d

at 656.

On appeal, the parents contended that the State

had failed to prove that they acted, or failed to act,

with malice. See id. at 611, 596 A.2d at 657. The Court

of Special Appeals recognized that “malice is the indis­

pensable ingredient of murder; by its presence, homici­

de is murder; in its absence, homicide is manslaught­

er.” Id* at 611, 596 A.2d at 657 (cleaned up). The Court

of Special Appeals observed, though, that malice for

depraved heart murder may be inferred from “the

intent to do an act under circumstances manifesting

extreme indifference to the value of human life[.]” Id*

at 611, 596 A.2d at 657. The Court of Special Appeals

noted that “[m]ost cases prosecuted under a ‘depraved

App.78a

heart’ theory involve affirmative conduct—firing a gun

or driving a car or boat into a crowd, for example.” Id*

at 612, 596 A.2d at 657 (citations omitted). Neverthe­

less, ‘“depraved heart’ murder has also been found in

cases of malicious omission, including situations where

a parent has maliciously allowed a small child to die of

exposure or of malnutrition and dehydration.” Id* at

612, 596 A.2d at 657. The Court of Special Appeals

traced the history of depraved heart murder cases

involving child exposure or starvation from the English

common law to the present, including cases from

courts in other jurisdictions. See id* at 612-19, 596

A.2d at 657-61. Applying the principles distilled from

its historical review, the Court of Special Appeals

concluded that the evidence in the case supported the

finding of malice:

Most of these cases—English and American—

tend to be fact-specific. It is evident from all of them

that mere neglect, despite its awful consequence, is

not enough to establish malice and thus to support

a conviction of murder. We believe, however, that..

. the court’s finding of malice in this case is support­

ed by the evidence. Where a young child, incapable

of self-help, is knowingly, deliberately, and unnece­

ssarily placed in confinement and left alone for up

to five days without food, drink, or attention and

death ensues from that lack, malice may be inferr­

ed. A rational trier of fact could reasonably find

that death is at least a likely, if not a certain, conse­

quence of such conduct, that any normal adult wou­

ld understand and appreciate the likelihood of that

consequence, and that the conduct is therefore will­

ful and wanton, manifesting viciousness or contem­

ptuous disregard for the value of human life[J

App.79a

Id. at 619-20, 596 A.2d at 661-62 (cleaned up).

In Maryland, convictions for depraved heart murd­

er also have been affirmed in cases involving the use of

weapons, intentional infliction of physical injury resul­

ting in death, and leaving an incapacitated person un­

attended knowing that death would result. In Alston v.

State. 101 Md. App. 47, 58-59, 643 A.2d 468, 473-74

(1994), &f£d, 339 Md. 306, 662 A.2d 247 (1995), the

Court of Special Appeals held that the evidence was

sufficient to support the defendant’s conviction for

second-degree depraved heart murder where a’ fifteenyear-old was fatally shot on a street during a gunfight.

The Court of Special Appeals concluded “that for appr­

oximately ten men to engage in an extended firefight

on an urban street in a residential neighborhood was

conduct that created a very high degree of risk of death

or serious bodily injury to others.” Alston. 101 Md.

App. at 58, 643 A.2d at 473. In Owens v. State. 170

Md. App. 35, 43, 103, 906 A.2d 989, 993, 1027 (2006),

affd. 399 Md. 388, 924 A.2d 1072 (2007), the Court of

Special Appeals held that the evidence was sufficient

to support the defendant’s conviction for second-degree

depraved heart murder where the evidence established

that the two-year-old victim, who was the defendant’s

stepson, had sustained “a tremendous amount of blunt

force[,]” “causing rib fractures, bruising of both the

lungs and. thymus, and tearing of the liver[,]” that the

“injuries could not have been inflicted by the victim’s

four-year-old brother[,]” and that the defendant “had

sole custody of the victim during the time that the

injuries were sustained.”

In Eric F.. 116 Md. App. at 511, 522, 698 A.2d at

1122, 1127, the Court of Special Appeals held that the

evidence was sufficient to support a finding of a juveApp.80a

rule’s involvement in a delinquent act which would

have constituted second-degree depraved heart murder

had the juvenile been an adult. In Eric F.. id. at 511,

522, 698 A.2d at 1122, 1127, the juvenile, a teenager

who had been drinking with a fifteen-year-old victim,

dragged the victim, who was unconscious and only

partially clothed, to the woods behind his house on a

cold and rainy night, and left the victim to die of hypo­

thermia. The Court of Special Appeals determined that

the juvenile’s indifference toward the victim was demo­

nstrated by his placing the victim “outside in the cold,

dragging her to the woods, and leaving her there in an

unconscious state[,]” placing “her in a dangerous situ­

ation and, therefore, clearly indicat [ing] his total lack

of regard for her well being, considering the dangerous

state in which she was placed in the sub-freezing cold.”

Id. at 521, 698 A.2d at 1127. The Court of Special

Appeals concluded that the evidence was sufficient to

support a finding that the juvenile knew that his

actions would lead to the victim’s death, “and that he

manifested an extreme indifference to the value of her

life by leaving her in the cold, and failing to seek

appropriate help.” M* at 522, 698 A.2d at 1127.

Analysis

We hold that the evidence was not sufficient to sup­

port Beckwitt’s conviction for second-degree depraved

heart murder because, as the Court of Special Appeals

determined, Beckwitt’s conduct, although demonstrat­

ing a reckless disregard for human life, was “not the

type of conduct that [was] likely, if not certain, to cause

death, and thus does not rise to the level of opprobrious

conduct that depraved heart murder proscribes—

conduct that is so extreme in its disregard to human

App.81a

life that it may be deemed willful”,Beckwitt, 249 Md.

App. at 378, 245 A.3d at 227. Beckwitt’s conduct—

having Khafra dig tunnels underneath his home, in a

basement with electrical power supplied.by multiple

extension cords and power strips and filled with trash

and debris that would have severely impeded Khafra’s

escape in the event of any emergency—whether consi­

dered individually or cumulatively, did not constitute

conduct that could be said to be reasonably likely, if

not certain, to cause death and thus did not satisfy the

malice element necessary for depraved heart murder.

As the Court of Special Appeals observed, the State

conceded that, at trial, it did not present evidence that

the tunnels were structurally unsafe. Ii at 377, 245

A.3d at 227. In other words, the tunnels were not stru­

cturally unsound, ready to collapse or cave in at a mo­

ment’s notice. To be sure, the evidence demonstrated

that during a power outage, it was dark, and the airf­

low was restricted. But, that circumstance by itself was

not reasonably likely, if not certain, to cause death.

In addition, it is readily apparent that, although

Beckwitt’s basement was full of trash and debris, to

the point that the hoarding conditions hampered esca­

pe from the basement in the event of an emergency,

the conditions in the basement in and of themselves

did not pose an imminent risk of death to Khafra. Sim­

ilarly, that Beckwitt used multiple extension cords and

power strips to provide electricity, and that he was

aware of two power failures in the hours before the

fire, does not constitute conduct reasonably likely, if

not certain, to cause death. Even when all of the envir­

onmental factors and Beckwitt’s actions are considered

in the aggregate, we are not able to conclude that a

rational trier of fact could have found that Beckwitt’s

App.82a

conduct demonstrated an extreme indifference to the

value of human life or rose to the level such that it was

reasonably likely, if not certain, to cause death.

The State takes issue with the Court of Special

Appeals having pointed out that “other individuals,

including Khafra, worked in the tunnels without

incident[,]” Beckwitt. 249 Md. App. at 377, 245 A.3d at

227, and contends that the circumstance that others

worked in the tunnels and did not die is irrelevant and

does not mean that Beckwitt’s conduct was not reason­

ably likely to cause death. The State relies on two outof-state cases involving fatal traffic accidents in which

depraved heart murder convictions were affirmed—

State v. Fuller. 531 S.E.2d 861 (N.C. Ct. App. 2000)

and State v. Doub. 95 P.3d 116 (Kan. Ct. App. 2004)—

for the argument that, “[i]n both of those cases, the

defendant could have managed to make it home with­

out killing anyone!,]” but “[t]hat does not mean that

their conduct was not reasonably likely to result in

death!,]” especially “where the same high-risk behavior

is repeated day after day[J” We are unpersuaded by

the State’s reliance on those cases, as, unlike in this

case, the defendants in Fuller and Doub engaged in

numerous actions that, either individually, or cumu­

latively, were indeed likely to cause death.

In Fuller. 531 S.E.2d at 864, the Court of Appeals

of North Carolina concluded that a charge of seconddegree murder was properly submitted to the jury and

that the defendant’s conduct “manifested] a mind

utterly without regard for human life and social duty,

supporting a finding of malice sufficient for a convict­

ion of second-degree murder.” (Citations omitted). The

defendant, while driving drunk, led police on a 16.7mile high- speed chase that ended when he hit a truck,

App.83a

forcing it into oncoming traffic, killing both of the

occupants. See id. at 863-64. The defendant engaged in

several actions that were likely, if not certain, to cause

death, including driving a vehicle with a blood-alcohol

concentration of 0.15, running a stop sign, running a

red light, speeding and passing stopped traffic at speed

of 90-95 miles per hour, and leading police on a long

high-speed chase. See id.

Similarly, in Doub, 95 P.3d at 117, the Court of

Appeals of Kansas concluded that the evidence was

sufficient to support the defendant’s conviction for

second-degree murder, where the defendant, while dri­

ving drunk, struck another car, ultimately resulting in

a child’s death, and left the scene. The defendant enga­

ged in several actions that were likely, if not certain, to

cause death, including driving after drinking, consum­

ing more alcohol and using crack cocaine and then re­

suming driving, speeding and running into a vehicle,

and failing to stop and render aid to the victims after

the collision. See id. The Court determined that those

facts, along with others, clearly demonstrated an

extreme indifference to human life. See id. at 121.

By contrast, in this case, although Beckwitt’s

conduct demonstrated a wanton and reckless disregard

for human life, it was not conduct that could be said to

be likely, if not certain, to cause death, and is not

conduct that satisfied the malice element of depraved

heart murder. Beckwitt’s conduct was reprehensible

and demonstrated an indifference to the risk of danger

to which Khafra was exposed and satisfied all the

elements for both gross negligence and legal duty

involuntary manslaughter but we cannot say that

Beckwitt engaged in conduct from which a jury could

reasonably conclude that death was a likely, if not

App.84a

certain, result. In accord with the Court of Special

Appeals, we hold that the evidence is insufficient to

support Beckwitt’s conviction for second-degree

depraved heart murder.28

JUDGMENT OF THE COURT OF

SPECIAL APPEALS AFFIRMED.

80% OF COSTS TO BE PAID BY

PETITIONER/CROSS­

RESPONDENT AND 20% OF COSTS

TO BE PAID BY MONTGOMERY

COUNTY.

28As a result of our affirmance, in accord with the mandate

issued by the Court of Special Appeals, Beckwitt’s conviction for

depraved heart murder remains reversed and the case is

remanded to the circuit court for sentencing on the conviction for

involuntary manslaughter. See Beckwitt. 249 Md. App. at 346,

401-02, 245 A.3d at 209, 242.

App.85a

Circuit Court for Montgomery County

Case No. 133838C REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 794

September Term, 2019

DANIEL BECKWITT

v.

STATE OF MARYLAND

*Meredith,

Kehoe,

Beachley,

JJ.

Opinion by Beachley, J.

Filed: January 28, 2021

*Meredith, J., now retired, participated in the

hearing and conference of this case while an active

member of the Court. He participated in the adoption

of this opinion after being recalled pursuant to

Maryland Constitution, Article IV, Section 3A.

Pursuant to Maryland Uniform Electronic Legal Materials Act

(§§ 10*1601 et seq. of the State Government Article) this

document is authentic: 2021-04-07 11:25-04:00 Suzanne C.

Johnson, Clerk

App.86b

Following a trial that spanned over two weeks, a

jury in the Circuit Court for Montgomery County found

appellant, Daniel Beckwitt, guilty of second-degree

depraved heart murder and involuntary manslaughter.

The court sentenced appellant to twenty-one years’

imprisonment, suspending all but nine, for depraved

heart murder, and merged the conviction for

involuntary manslaughter. Appellant timely appealed

and presents the following four issues for our review:

1. Was the evidence legally sufficient to sustain

[appellant’s] convictions for depraved heart murder

and involuntary manslaughter?

2. Did the trial court err by giving flawed jury

instructions on murder and manslaughter?

3. Did the prosecutor’s repeated improper remarks

during closing and rebuttal closing arguments

result in reversible error?

4. Did the suppression court err in denying

[appellant’s] request for a hearing pursuant to

Franks v. Delaware111?

We hold that the evidence was legally sufficient to

sustain appellant’s conviction for gross negligence invo­

luntary manslaughter, but was insufficient to sustain

the depraved heart murder conviction. We reject appe­

llant’s remaining allegations of error. We shall theref­

ore reverse appellant’s conviction for depraved heart

murder and remand for sentencing on the previously

merged involuntary manslaughter conviction.

FACTUAL AND PROCEDURAL BACKGROUND

This case involves the tragic death of Askia Khafra,

a twenty-one-year-old who died while trying to escape

a fire in appellant’s basement. At the time of the fire,

‘Franks v. Delaware, 438 U.S. 154 (1978).

App.87b

appellant was twenty-six- years old. The unfortunate

series of events that brought Khafra and appellant

together arose from Khafra’s idea to create a

smartphone application or “app” called Equity Shark.

Khafra envisioned Equity Shark as streamlining the

process for average people to invest in ■ “starter

companies” or small businesses that had not yet gone

public and needed funding. Khafra expended

considerable effort in developing the app. In

furtherance of that goal, Khafra browsed internet

chatrooms looking for investors. Khafra found his first

investor—appellant—in such a chatroom.

Khafra pitched his business idea to appellant, and

explained that he was looking for approximately

$5,000 to go to San Francisco to apply for a Thiel Fello­

wship.2 According to the parties’ briefs, appellant inve­

sted approximately $10,000 for a 5% stake in Equity

Shark.3 Khafra and appellant went on to develop a

close friendship. Khafra apparently became fascinated

with appellant due to appellant’s wealth and financial

success. Khafra looked to appellant as someone who

could help him grow Equity Shark, not just financially,

but by assisting with computer coding and other efforts

needed to develop the app into a viable business.

Unfortunately, Equity Shark never took off as planned,

and Khafra was not accepted for the Thiel Fellowship.

2The transcript incorrectly refers to this as the ‘Peter Field

Fellowship.” The specifics of the Fellowship itself, however, such

as the age limit, the requirement to drop out of school in order to

attend, and the Fellowship’s general purpose, persuade us that

Khafra was pursuing a “Thiel Fellowship” rather than a ‘Field

Fellowship.”

See •

Thiel

Fellowship, •

FAQ,

https://thielfellowship.org/faq/ (last visited Jan. 8, 2021).

3There appears to be some discrepancy regarding‘the total

amount of appellant’s investment, but that discrepancy is

immaterial to the outcome of this appeal.

App.88b

In order to repay appellant’s $10,000 investment,

Khafra agreed to dig tunnels underneath appellant’s

house. Appellant had been building tunnels and an

underground bunker beneath his home because he

apparently feared a nuclear war with North Korea.

Khafra was not the first person to dig tunnels for

appellant. Douglas Hart, who was approximately

twenty years old at the time,4 dug tunnels on several

occasions from approximately October 2016 to April

2017. Logistically, Hart would drive his car to

Maryland,5 meet appellant at a McDonald’s, and then

appellant would require Hart to wear sunglasses with

duct tape on them to obscure Hart’s vision while

appellant drove the two to appellant’s home. Despite

the fact that appellant actually lived in Maryland, he

gave Hart the impression that they were going to

Virginia. When Hart visited appellant to dig tunnels,

he typically stayed in the tunnels and basement area

for approximately a month at a time and understood

that he was not allowed into the rest of the house. Hart

indicated that he was physically incapable of leaving

the basement/tunnel area, and that although there

was a door from the basement leading directly to the

outside, that door was kept locked and appellant

always had the key. When Hart communicated to

appellant that he wanted to go outside for fresh air or

to get food, however, appellant would oblige him.

Nevertheless, appellant required Hart to wear the

duct-taped sunglasses upon going outside to prevent

Hart from learning the location of appellant’s house.

4Hart testified at the April 2019 trial that he was twenty-three

years old. From this fact we extrapolate that he was

approximately twenty years old when he began working in

appellant’s tunnels in October 2016.

5At trial, Hart indicated that he was living in New York.

App.89b

In early 2017, Khafra began digging tunnels at

appellant’s home for $150 a day. Appellant typically

picked Khafra up at Khafra’s parents’ house in the

early morning hours, around 3:00 a.m., and like Hart,

required Khafra to be blindfolded during the trip to

appellant’s house.6 Khafra would dig underneath

appellant’s home approximately once a month to every

two months, and would stay anywhere from a few days

to a few weeks at a time.7 During his stays, Khafra

mostly remained in the bunker area in the tunnels.

According to appellant’s brief, “Khafra roamed freely in

the basement and the tunnels, but he was not

permitted to come up to the first or second floors of the

residence.” Rather than take showers, Khafra cleaned

himself using disposable wipes. To relieve himself,

Khafra would urinate and defecate in a bucket he kept

in the tunnels. Every few days, Khafra and appellant

used a winch system to haul the bucket from the

basement to the first floor, where appellant ■ himself

would dispose of its contents in the first-floor

bathroom. Because appellant did not own a phone,

Khafra could only communicate with appellant from

the basement and tunnels using Google apps such as

Google Voice and V Chat.8 Appellant used numerous

6During a trip to appellant’s home, Khafra learned that

appellant actually lived in Bethesda, Maryland.

’Khafra’s father testified at trial that he recalled Khafra going

to appellant’s house in January, February, March, April, and

September of 2017.

8“Google Voice” is a program that “gives you a phone number

for

calling,

text

messaging,

and

voicemail.”

https://play.google.com/store/apps/details?

id=com.google.android.apps.googlevoice&hl= en_US&gl=US (last

visited Jan. 8, 2021). {CV Chat” is a private messenger service that

allows users to “communicate instantly while avoiding [text

messaging] fees [.]” https://play.google.com/store/apps/details?

id=com.wVChat_9255903 (last visited Jan. 8, 2021).

App.90b

extension cords and power strips to provide electricity

to the tunnels. In his interviews with police, appellant

intimated his familiarity with the failing power cords

and having to reset the circuit breaker.

On September 3, 2017, Khafra went to appellant’s

home to resume work in the tunnels. A week later,

while digging in the tunnels on September 10 at 2:32

a.m., Khafra messaged appellant using Google Hang­

outs, stating £Choly [s**t] bro there’s no power down

here.” Approximately five minutes later, at 2:37 a.m.,

Khafra indicated that there was smoke in the base­

ment. At 2:51 a.m., Khafra wrote again, stating that he

no longer believed there was smoke in the basement,

but that the lights had gone out and it was “pitch black

down [there]” with no airflow. Khafra’s message asked

appellant to “please try to fix when you see this.”

Appellant did not see Khafra’s messages until he

woke up at approximately 9 a.m. At 9:27 a.m., appella­

nt wrote to Khafra that there had been a “pretty major

electrical failure” and that appellant was switching the

power over to a different circuit. Appellant then went

back to sleep, and awoke at approximately 3 p.m. App­

ellant went downstairs from his second-floor bedroom

to get something to eat, and at around 4 p.m., he heard

a beeping sound coming from the carbon monoxide

detector in the dining room. Appellant understood the

bee

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