Petition for Writ of Certiorari — Mashour Howling, Petitioner v. Maryland
Supreme Court briefOct 13, 2022
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APPENDIX
i
APPENDIX
TABLE OF CONTENTS
Appendix A Opinion in the Court of Appeals of
Maryland
(April 28, 2022) . . . . . . . . . . . . . . . App. 1
Appendix B Opinion in the Court of Special
Appeals of Maryland
(February 4, 2021) . . . . . . . . . . . App. 47
Appendix C Order and Corrected Order in the
Court of Appeals of Maryland Denying
the Motion for Reconsideration
(June 15, 2022,
Corrected August 11, 2022) . . . . App. 71
Appendix D Sentence in the Court of Common
Pleas of Butler County, Pennsylvania
(December 18, 2002) . . . . . . . . . . App. 73
Appendix E Md. Code, Public Safety,
§ 5-133 . . . . . . . . . . . . . . . . . . . . . App. 74
Appendix F Questions Presented in Petition for
Writ of Certiorari in the Court of
Appeals of Maryland. . . . . . . . . . App. 80
App. 1
APPENDIX A
IN THE COURT OF APPEALS OF MARYLAND
Nos. 35 & 36
September Term, 2021
[Filed April 28, 2022]
__________________________
MASHOUR HOWLING
)
v.
)
STATE OF MARYLAND
)
__________________________ )
FUNIBA ABONGNELAH
)
v.
)
STATE OF MARYLAND
)
__________________________ )
Circuit Court for Montgomery County
Case No. 135898C
Circuit Court for Montgomery County
Case No. 135936C
Argued: February 3, 2022
App. 2
*Getty, C.J.,
*McDonald,
Watts,
Hotten,
Booth,
Biran,
Battaglia, Lynne A. (Senior Judge,
Specially Assigned),
JJ.
__________________________________
Opinion by Hotten, J.
__________________________________
Filed: April 28, 2022
*Getty, C.J., and McDonald, J., now Senior Judges,
participated in the hearing and conference of these
cases while active members of this Court; after being
recalled pursuant to Maryland Constitution, Article IV,
Section 3A, they also participated in the decision and
adoption of this opinion.
“There is wide latitude in the lawmakers to declare
an offense and to exclude elements of knowledge . . .
from its definition.” Lambert v. California, 355 U.S.
225, 228, 78 S. Ct. 240, 242 (1957). We consider
whether the General Assembly intended to exclude the
element of knowledge of a person’s status as a person
prohibited from possessing a regulated firearm and
ammunition pursuant to Md. Code Ann., Public Safety
(2018 Repl. Vol.) (“Pub. Safety”) § 5-133 and § 5-133.1.
This opinion consolidates two separate cases that
collectively concern the possession of a prohibited
firearm and ammunition by disqualified persons.
App. 3
The defendants in each case, Mr. Mashour
E. Howling (“Petitioner Howling”) and Mr. Funiba T.
Abongnelah (“Petitioner Abongnelah”), possessed a
firearm at the time of arrest, while disqualified from
doing so. Both cases proceeded separately to jury trials
before the Circuit Court for Montgomery County. At
varying points in the proceedings, each Petitioner
requested that the respective circuit court adopt the
reasoning of Rehaif v. United States, 588 U.S. ___,139
S. Ct. 2191 (2019), where the United States Supreme
Court held that the federal statute 18 U.S.C. § 922(g)
required proof of knowledge of possession of a firearm
and proof of knowledge of the defendant’s status as a
person prohibited from possessing a firearm.1 Id. at
___, 139 S. Ct. at 2200. Petitioners requested that the
circuit court give a jury instruction incorporating the
reasoning of Rehaif.2
1
Petitioner Abongnelah appeared to argue at trial that pursuant
to Rehaif the State must prove that he knew his prior felony
conviction disqualified him from possession. This argument
misinterprets the holding of Rehaif. He subsequently amended his
argument on appeal, which we address infra at slip op. 36.
2
Only Petitioner Howling’s case concerned possession of prohibited
ammunition pursuant to Pub. Safety § 5-133.1. The State argues
that Petitioner Howling failed to preserve the argument with
respect to Pub. Safety § 5-133.1 because Petitioner Howling
requested and received a jury instruction that did not include
knowledge of status as an element of the crime. Ordinarily, the
issue with respect to Pub. Safety § 5-133.1 would be unpreserved
pursuant to Md. Rule 8-131(a). Given the close connection between
Pub. Safety § 5-133.1 and Pub. Safety § 5-133, and the desire to
provide guidance to lower courts that will frequently address the
concurrent issue of possession of a firearm and ammunition, we
exercise our discretion to reach the merits of whether Pub. Safety
App. 4
The circuit court declined to give the requested jury
instruction in each case. Both Petitioners moved for
judgment of acquittal at the close of the State’s case
and renewed the motion at the close of all evidence.
Pertinent to this appeal, Petitioner Abongnelah argued
that the State provided insufficient evidence to
establish that he knew he was prohibited from
possessing a firearm. The circuit court denied both
motions in each case.
Two separate juries found Petitioners each guilty of
possessing a firearm in violation of Pub. Safety § 5-133.
Petitioner Howling was also found guilty of possessing
ammunition in violation of Pub. Safety § 5-133.1.
Petitioners separately appealed to the Court of Special
Appeals, which affirmed in separate unpublished
opinions. Abongnelah v. State, No. 2561, Sept. Term,
2019, 2021 WL 1943262 (Md. Ct. Spec. App. May 11,
2021); Howling v. State, No. 2087, Sept. Term, 2019,
2021 WL 402519 (Md. Ct. Spec. App. Feb. 4, 2021). The
Court of Special Appeals declined to adopt the
reasoning of Rehaif in either case, and concluded that
the State must prove, with respect to the mens rea
§ 5- 133.1 requires proof of knowledge of prohibited status. Jones
v. State, 379 Md. 704, 713, 843 A.2d 778, 783 (2004) (“Thus, under
[Md. Rule 8-131(a)], an appellate court has discretion to excuse a
waiver or procedural default and to consider an issue even though
it was not properly raised or preserved by a party[]”); see Crown
Oil and Wax Co. of Delaware v. Glen Const. Co. of Virginia, Inc.,
320 Md. 546, 561, 578 A.2d 1184, 1191 1990) (“Even if the
successor argument were a new issue, raised for the first time on
appeal, this Court has discretion under [Md.] Rule 8-131(a) to
consider it, and we exercise that discretion to consider the ‘issue’
in this case.”).
App. 5
element, only knowledge of possession of a regulated
firearm pursuant to Pub. Safety § 5- 133 (in both cases)
and knowledge of possession of ammunition pursuant
to Pub. Safety § 5-133.1 (in Petitioner Howling’s case).
Accordingly, the intermediate appellate court held that
the circuit court did not abuse its discretion in
declining to give Petitioners’ requested jury
instructions. The court also held in Petitioner
Abongnelah’s case that there was sufficient evidence to
establish knowledge of possession of a regulated
firearm.
Petitioners asked this Court to interpret Pub. Safety
§ 5-133 and § 5-133.1 to require knowledge of
possession of a firearm and knowledge of status as a
prohibited person. We granted certiorari on September
29, 2021 in each case, 476 Md. 258, 259 A.3d 797
(2021), to address the following questions presented:
1. In a question of first impression, did the
[circuit] court err by giving a jury instruction
that omitted a scienter requirement for the
offenses charged, contrary to the holding of
Rehaif v. United States, [588 U.S. ____,] 139
S. Ct. 2191 (2019), on the presumptions in law in
the equivalent Federal Statute, the Rule of
Lenity, and this Court’s decisions in Dawkins v.
State, 313 Md. 638[, 547 A.2d 1041] (1988) and
Chow v. State, 393 Md. 431[, 903 A.2d 388]
(2006)?
2. Under the facts of [Petitioner Howling’s] case,
in which no evidence was adduced that
[Petitioner Howling] was previously notified by
government authorities that he was prohibited
App. 6
from possessing a regulated firearm in
Maryland, did the [circuit] court err in giving
the pre-Rehaif pattern jury instructions lacking
scienter requirements?
[3.] In a matter of first impression, did [the
Court of Special Appeals] err by holding that the
evidence was sufficient to convict Petitioner
[Abongnelah] of illegally possessing a regulated
firearm where the State failed to prove he had
knowledge of his prohibited status - i.e., that he
was a convicted felon - because that result was
inconsistent with the [United States] Supreme
Court’s interpretation of the analogous Federal
statute in Rehaif v. United States, [588 U.S.
____,] 39 S. Ct. 2191 (2019), and was at odds
with this Court’s precedent?
[4.] Did [the Court of Special Appeals] err by
upholding the [circuit] court’s refusal to instruct
the jury that the State was required to prove
that Petitioner [Abongnelah] had knowledge of
his prohibited status?
[5.] Was the knowledge issue raised [by
Petitioner Abongnelah] adequately preserved
where both trial and appellate counsel argued
that Rehaif required knowledge of prohibited
status and appellate counsel clarified in
[Petitioner Abongnelah]’s Reply Brief [before the
Court of Special Appeals] that prohibited status
meant Petitioner [Abongnelah]’s status as a
felon?
App. 7
We answer the questions presented in the negative,
and shall affirm the judgments of the Court of Special
Appeals.
FACTS AND PROCEDURAL BACKGROUND
Underlying Incidents
A. Petitioner Howling
On March 20, 2019, Corporal Brian Rumsey of the
Maryland National Capital Park and Planning Police
Department was on a lunch break at a shopping center
near Layhill Road in Silver Spring, Maryland. Corporal
Rumsey observed two men in the shopping center
parking lot “checking their surroundings, constantly
looking around.” Corporal Rumsey entered a nearby
liquor store on the suspicion of a potential robbery. He
noticed one of the two men at the counter and detected
the smell of marijuana.
Corporal Rumsey followed the two men, who crossed
Layhill Road and entered the passenger side of a
parked truck in a nearby parking lot. Corporal Rumsey
“flagged down” Officer Sean McKinney of the
Montgomery County Police Department “MCPD” in a
marked cruiser and notified Officer McKinney of
potential criminal activity. Officer McKinney
approached the parked truck and detected a “strong
odor of marijuana” emanating from the vehicle and/or
its passengers. One of the men told Officer McKinney
that they were waiting for their friend, later identified
as Petitioner Howling, who was getting a haircut at the
nearby barbershop.
App. 8
Law enforcement searched the truck3 and found a
rental agreement in Petitioner Howling’s name, a
loaded Glock semiautomatic handgun, two magazines
of ammunition for the handgun, and approximately
$4,100 in cash. Two officers located Petitioner Howling
in the barbershop and arrested him.
During a police interview with Detective Tomasz
Machon of the MCPD, Special Investigation Division,
Petitioner Howling explained that he lived in
Pennsylvania but had traveled to Montgomery County,
where his mother resides, for a doctor’s appointment.
His two friends, who initially drew the attention of
Corporal Rumsey, wanted to accompany him on the
trip. Petitioner Howling told Detective Machon that the
handgun was registered to him in Pennsylvania, and
he did not realize the handgun was in the car “until on
the way down[.]” Petitioner Howling also informed
Detective Machon that he was convicted of simple
assault in Pennsylvania.4 When the interviewing officer
advised that Maryland law prohibited possession of a
firearm following conviction of simple assault in
3
Officer Rumsey testified during the suppression hearing that he
received consent to search the truck. The suppression court did not
reach the issue of consent, but found that the odor of marijuana
provided probable cause to search the vehicle. Petitioner Howling
did not challenge the decision of the suppression court on appeal.
4
Petitioner Howling was convicted of simple assault in 2002, a
misdemeanor in Pennsylvania. Petitioner Howling was sentenced
to eighteen months of probation, twenty hours of community
service, and ordered to pay a fine and other costs. Pennsylvania
law permits the possession of firearms by individuals convicted of
simple assault.
App. 9
Pennsylvania, Petitioner Howling claimed that he did
not intentionally bring the handgun into Maryland.
The State charged Petitioner Howling with possession
of a firearm by a prohibited person pursuant to Pub.
Safety § 5-133(c), transportation of a loaded handgun
in a vehicle pursuant to Md. Code Ann., Criminal Law
(“Crim. Law” §4-203(a)(1)(v), and possession of
ammunition by a prohibited person pursuant to Pub.
Safety § 5-133.1.
B. Petitioner Abongnelah
In April 2019, Detective Machon began monitoring
an Instagram account with the handle “gg_mikey”,
believed to be used by Petitioner Abongnelah. Prince
George’s County law enforcement had been monitoring
the account since Petitioner Abongnelah’s release from
prison in 2018, and tipped off Detective Machon that
Petitioner Abongnelah may be involved in prohibited
firearms activity within Montgomery County.
On June 5, 2019, at 1:53 a.m., a video was posted to
the Instagram account that depicted a person shooting
a Kel-Tec handgun at a distant car with flashing red
and blue lights. A voice in the video stated, “I’m a shoot
the police.” Based on the video, other photos and videos
posted to the Instagram account, and Petitioner
Abongnelah’s MVA photo, Detective Machon concluded
that Petitioner Abongnelah was the person firing the
weapon in the video. Detective Machon also identified
the serial number of the firearm in the video and
discovered that the firearm had been reported stolen in
August 2018.
App. 10
On the same day as the Instagram posting, MCPD
officers applied for a search warrant for Petitioner
Abongnelah’s apartment. In the interim, undercover
officers surveilled the outside of his apartment
building. The officers witnessed Petitioner Abongnelah
leave his apartment and enter a vehicle with a driver
and two passengers. Officers followed the vehicle to a
shopping center, where Sergeant Charlie Bullock
testified that he believed he observed Petitioner
Abongnelah make a drug exchange outside of a bank.
When MCPD stopped Petitioner Abongnelah’s vehicle,
Petitioner Abongnelah fled. Officers caught Petitioner
Abongnelah and arrested him. Officers searched his
person, and found a loaded firearm in his pocket. The
parties stipulated that at the time of his arrest,
Petitioner Abongnelah was under twenty-one and a
convicted felon.
The State charged Petitioner Abongnelah with
possession of a firearm by a convicted felon in violation
of Pub. Safety § 5-133(c) and possession of a firearm by
a person under the age of twenty-one pursuant to Pub.
Safety § 5-133(d).
Circuit Court Proceedings
A. Petitioner Howling
Petitioner Howling moved to suppress evidence
seized from the pick-up truck. Following a suppression
hearing on September 19, 2019, the circuit court denied
Petitioner Howling’s motion in a memorandum opinion
and order. The case proceeded to a jury trial on October
15, 2019. The State presented witness testimony and
exhibits that demonstrated Petitioner Howling was in
App. 11
possession of the firearm at the time of the arrest. In a
recorded interview between Petitioner Howling and
Detective Machon, Petitioner Howling admitted to
possessing the firearm:
[Detective] Machon: Okay. Well, what’s the deal
with that gun?
[Petitioner] Howling: I didn’t realize it was there
until on the way down, I had money on me for
stuff I had to pick up and stuff for tomorrow.
And I went to put that in the compartment, the
gun. It’s my gun. It’s registered to me.
***
[Detective] Machon: So in Maryland, . . . as far
as the law goes, you can’t possess a firearm if
you’re (unintelligible) and certain charges,
you’ve been charged with in the past. I see you
initially had an assault.
***
[Petitioner] Howling: . . . I didn’t know [the
firearm] was in there. I wouldn’t have brought
it.
[Detective] Machon: Okay. It’s not anybody else’s
in that car. It’s yours and you had possession of
it.
[Petitioner] Howling: That’s mine and my gun is
in there.
App. 12
The State then admitted evidence demonstrating that
ammunition for the firearm was recovered from the
vehicle.
At the close of the State’s case, counsel for
Petitioner Howling moved for judgment of acquittal,
arguing that “[Petitioner] Howling was[ not] aware
that he could[ not] have a firearm and ammunition in
the [S]tate of Maryland based on his prohibited
conviction.” The State opposed the motion by arguing
that “[k]nowledge of the law is not an element of the
offenses charged.” The circuit court agreed with the
State and denied the motion: “With respect to the
argument of scienter of knowledge about the gun laws
in Maryland, the statute that prohibits a certain
person[] from having a firearm is a strict liability
offense. It does not require that intent be proven.”
Counsel for Petitioner Howling renewed the motion
for judgment for acquittal by arguing that the circuit
court should adopt the reasoning of the United States
Supreme Court in Rehaif and interpret Pub. Safety § 5133(c) to require proof of knowledge that the Defendant
“belongs to the relevant category of persons barred
from possessing a firearm.” The circuit court denied the
motion.
At the same time, Counsel for Petitioner Howling
requested the circuit court provide a jury instruction
incorporating the reasoning of Rehaif, arguing that the
State must prove that Petitioner Howling “knew he
was prohibited from having this firearm.” The circuit
court denied the request:
App. 13
[A] [circuit] court that uses a jury instruction
other than a pattern jury instruction when there
is a pattern jury instruction that directly
addresses the elements at issue, does so at the
[circuit] court’s own peril.
The appellate court in Annapolis has repeatedly
in many cases warned trial judges about
essentially going off base and giving instructions
that are not the approved Maryland pattern jury
instructions. There are some occasions upon
which there is an issue that is not addressed in
a Maryland pattern jury instruction but this
isn’t that case. I think this case does what is
appropriate in this case and that is put the issue
before the jury and the jury can decide whether
the elements have been proven.
The circuit court delivered a near-identical version
of Maryland Pattern Jury Instruction (“MPJI Cr.”)
§ 4:35.6:
The defendant is charged with possessing a
regulated firearm after having been convicted of
a crime that disqualified him from possessing a
regulated firearm. In order to convict[] the
defendant, the State must prove that the
defendant knowingly possessed a regulated
firearm and that defendant was previously
convicted of a crime that disqualified him from
possessing a regulated firearm. The State and
the defense agree and stipulate that the gun in
this case is a regulated firearm.
App. 14
The circuit court also delivered a jury instruction
“[m]odified from MPJI Cr. § [4:35.6][,]” and requested
by Petitioner Howling, for possession of ammunition by
a disqualified person pursuant to Pub. Safety § 5-133.1:
The defendant is charged with possession of
ammunition having been convicted of a crime
that disqualifies him from possessing
ammunition. In order to convict the defendant
the State must prove that the defendant
knowingly possessed ammunition and that the
defendant was previously convicted of a crime
that disqualified him from possessing
ammunition.
The jury convicted Petitioner Howling of possession
of a firearm by a prohibited person, possession of
ammunition by a prohibited person, and transporting
a loaded a handgun in a vehicle. The circuit court
sentenced Petitioner Howling to a suspended term of
nine years’ imprisonment, and three years of
unsupervised probation.
B. Petitioner Abongnelah
Petitioner Abongnelah moved to suppress the
firearm recovered from his person because it was
obtained during a search incident to a warrantless
arrest. The circuit court denied the motion and found
probable cause to believe that Petitioner Abongnelah
was in possession of a firearm as a convicted felon.5 The
5
The Court of Special Appeals affirmed the denial of the motion to
suppress. Petitioner Abongnelah did not raise the issue on appeal
before this Court.
App. 15
case proceeded to a jury trial on October 30 and 31,
2019.
The State introduced a jail call recording between
Petitioner Abongnelah and an unidentified speaker.
Petitioner Abongnelah admitted to possessing a
firearm at the time of arrest:
Unidentified speaker: I’m nervous[, t]hat’s all.
[Petitioner] Abongnelah: I’m good. I’m going to
be all right. . . . It’s just a gun charge. You know
what I’m saying? It’s not even a violent charge.
I ain’t, I ain’t rob nobody or nothing, but I just
got caught with one of my, one of my dogs, man.
***
I’m just protecting myself, man. . . . I’m black, I
may be dead. . . . I’m staying out of the way. . . .
I just so happened to get pulled over, and my
man got pulled over . . . and I had a gun in my
pocket.
***
[J]ust so you know, . . . these calls is recorded.
So you know what I’m saying? Don’t say
nothing[.]
(Emphasis added).
The parties stipulated that Petitioner Abongnelah
had a prior conviction that prohibited him from legally
possessing a firearm. The circuit court instructed the
jury that “the State and the defendant agree and
stipulate that the defendant was previously convicted
App. 16
of a crime that disqualifies him from possessing a
regulated firearm.” The parties also stipulated to
Petitioner Abongnelah’s date of birth, which
established that he was under the age of twenty-one at
the time of possession of the firearm on June 5, 2019.
Counsel for Petitioner Abongnelah moved for
judgment of acquittal at the close of the State’s case,
and renewed the motion at the close of evidence,
arguing that there was insufficient evidence that
Petitioner Abongnelah knew his prior conviction
prohibited possession of a firearm:
[Counsel for Petitioner Abongnelah]: [T]he State
presented zero evidence that he knew he was
part of that prohibited class of people prohibited
from possessing a firearm because of a crime of
violence. . . . [A]t the end of last term, the
[United States] Supreme Court . . . said in
relation to the Federal Statute th[at] Congress
intended for there to be a knowledge element.
That knowledge element goes towards both
elements knowing that he possessed the firearm
and knowing that you are part of that prohibited
class.
***
[T]here is no evidence that he knew or that he
was ever made aware that because of that prior
conviction he was prohibited from possessing a
firearm.
***
App. 17
THE COURT: . . . The law does not require at
this time that [Petitioner Abongnelah] was
aware that he was a disqualified person in
possession of a regulated firearm. So, the State
has satisfied its requisite burden with respect to
a motion for judgment of acquittal as to the
elements of the crime charged.
(Emphasis added).
Counsel for Petitioner Abongnelah requested a jury
instruction stating that the State must prove
knowledge of prohibited status, which the circuit court
denied. The circuit court delivered a substantially
similar instruction to the one given in Petitioner
Howling’s case.6 Counsel for Petitioner Abongnelah
renewed his motion to add an instruction consistent
with Rehaif which “makes knowledge of his being
prohibited from having a gun an element.”
The jury found Petitioner Abongnelah guilty of
being a person with a felony conviction in possession of
a firearm in violation of Pub. Safety § 5-133(c) and
possession of a firearm under the age of twenty-one in
6
The circuit court also gave a substantially similar instruction for
possession of a firearm under the age of twenty-one:
The defendant is charged with possessing a regulated
firearm when he was under the age of 21. In order to
convict the defendant, the State must prove one, that the
defendant knowingly possessed a regulated firearm and
two, that the defendant was under 21 years of age at the
time of that possession. The State and the defendant agree
and stipulate that the defendant’s age was under the age
of 21 on June 5, 2019.
App. 18
violation of Pub. Safety § 5-133(d). The circuit court
sentenced Petitioner Abongnelah to eight years of
incarceration, with all but the mandatory five-year
minimum suspended for the possession of a regulated
firearm with a felony conviction. The circuit court also
placed Petitioner Abongnelah on supervised probation
for five years. For the possession of a regulated firearm
while under twenty-one, the circuit court sentenced
Petitioner Abongnelah to five years of incarceration
with all but two years suspended and five years of
supervised probation to run concurrently with the
possession of a firearm with a felony conviction.
The Opinions of the Court of Special Appeals
A. The Howling Opinion
The Court of Special Appeals affirmed the decision
of the circuit court. The intermediate appellate court
did not find Rehaif “dispositive” because it involved the
interpretation of a federal statute and did not
announce a rule of constitutional law that would be
binding on the states. Howling, 2021 WL 402519 at *4
(quoting Mata v. United States, 969 F.3d 91, 93 (2d Cir.
2020)) (“the [United States] Supreme Court ‘was simply
construing a [federal] statute.’”.
After rejecting the application of Rehaif, the court
found that its recent decision in Brice v. State, 225 Md.
App. 666, 126 A.3d 246 (2015), was controlling. In
Brice, the court noted that “[t]here is no language in
the statute requiring a defendant to know that he [or
she] is disqualified. . . .” Id. at 694, 126 A.3d at 263.
Therefore, according to the court, “to satisfy the mens
rea requirement for [Pub. Safety §] 5-133, the State [is]
App. 19
required to prove only that the defendant knew that he
[or she] [is] in possession of a handgun.” Id. at 694, 126
A.3d at 263. Applying the analysis from Brice to the
instant case, the court found that “the State was only
required to prove that [Petitioner] Howling knew he
was in possession of a firearm and ammunition, not
that [Petitioner] Howling knew his Pennsylvania
conviction disqualified him from possessing a regulated
firearm and ammunition in Maryland.” Howling, 2021
WL 402519 at *6.
The court concluded that Petitioner Howling’s
requested jury instructions predicated on the reasoning
of the United States Supreme Court in Rehaif were not
correct statements of Maryland law. The Court of
Special Appeals held that the circuit court did not
abuse its discretion by declining to give the requested
jury instructions and by giving the pattern jury
instructions instead. Id.
B. The Abongnelah Opinion
The Court of Special Appeals also affirmed the
circuit court in Petitioner Abongnelah’s case. Similar to
Petitioner Howling’s case, the intermediate appellate
court declined to adopt the reasoning of the United
States Supreme Court in Rehaif, which “held that the
government must prove that not only did the defendant
knowingly possess a firearm in violation of [18 U.S.C.]
§ 922(g) but also that the defendant knew of his status
as a prohibited person under [18 U.S.C.] § 922(g).”
Abongnelah, 2021 WL 1943262 at *6 (citation and
footnote omitted) (emphasis added). By declining to
adopt Rehaif, the court concluded that “the State only
App. 20
needs to prove that a defendant [knew] they [were] in
possession of a firearm.” Id. at *7.
The court found that the State provided sufficient
evidence to establish Petitioner Abongnelah’s
knowledge of possession of a regulated firearm. MCPD
officers testified that a firearm was recovered on
Petitioner Abongnelah’s person. Id. A video posted to
Petitioner Abongnelah’s Instagram account indicated
that Petitioner Abongnelah shot at what appeared to be
a police vehicle using the same firearm. Id. Finally, in
a jail call recording, Petitioner Abongnelah admitted
that he was arrested while possessing a firearm. Id.
In a Reply Brief submitted to the court, Petitioner
Abongnelah argued that the State must prove that the
defendant knew he was a felon at the time of the
incident. The court declined to address this argument
because it was not raised in the circuit court or opening
briefs. Id. Assuming arguendo that knowledge of status
was required, the court found that the State met its
evidentiary burden because Petitioner Abongnelah
stipulated to the fact that he committed a prior felony,
which prohibited him from possessing a firearm
pursuant to Pub. Safety § 5-133(c). Id. at *8.
The court rejected Petitioner Abongnelah’s
argument that the circuit court erred by not giving a
jury instruction aligned to Rehaif. Id. Since it had
already concluded that Rehaif did not apply to
Maryland law, the Court of Special Appeals held that
the circuit court did not err by giving a jury instruction
that, with respect to the mens rea element, only
required knowledge of possession of a prohibited
firearm pursuant to Pub. Safety § 5-133(c).
App. 21
The Contentions of the Parties
A. Petitioner Howling
Petitioner Howling contends that this Court should
adopt the reasoning of the United States Supreme
Court in Rehaif and require that the State prove
knowledge of a defendant’s prohibited status pursuant
to Pub. Safety § 5-133 and § 5-133.1. Petitioner
Howling notes that similar to the United States
Supreme Court in Rehaif, this Court also presumes a
mens rea element of knowledge when interpreting
criminal statutes. Applying this presumption to the
instant case would “advance society at large and
separate ‘wrongful from innocent acts.’” (Citation
omitted).
Petitioner Howling argues that recognizing a
scienter requirement of knowledge of prohibited status
would be consistent with this Court’s decisions in Chow
v. State, 393 Md. 431, 903 A.2d 388 (2006), and
Dawkins v. State, 313 Md. 638, 547 A.2d 1041 (1988).
According to Petitioner Howling, Chow held that the
defendant “must know that the activity they are
engaging in is illegal.” (Citation omitted). Petitioner
Howling also reads Dawkins for the proposition that
mens rea, including knowledge of illegal status, should
be adjudicated by a jury. Petitioner Howling asserts
that the need for an element of knowledge is
particularly acute “when multiple states have differing
statutes[]” criminalizing possession.
Petitioner Howling asks this Court to discount the
Court of Special Appeals’ reasoning in Brice, because
the legal analysis was “very abbreviated[]” and “the
App. 22
facts were so negative against the Appellant Brice[.]”
Instead, Petitioner Howling contends that this Court
should rely on the reasoning of Lawrence v. State, 475
Md. 384, 257 A.3d 588, 602 (2021), which analyzed
whether the General Assembly intended for Crim. Law
§ 4-203 to be a strict liability crime, to find that Pub.
Safety § 5-133 requires knowledge of prohibited status.
Petitioner Howling argues that unlike Crim. Law § 4203, Pub. Safety § 5-133 is modified by the word
“knowingly” in Pub. Safety § 5-144, and any ambiguity
regarding the statute should be resolved in favor of the
defendant pursuant to the rule of lenity. Finally,
Petitioner Howling asserts arguendo that if this Court
does not generally recognize a knowledge of status
requirement pursuant to Pub. Safety § 5-133, the facts
in Petitioner Howling’s particular case supported a jury
instruction that specifically recognized the knowledge
requirement.
B. Petitioner Abongnelah
Similar to Petitioner Howling’s argument,
Petitioner Abongnelah contends that there was
insufficient evidence to establish a conviction of an
illegal possession of a firearm because the State failed
to prove that Petitioner Abongnelah knew that he
belonged to the category of persons prohibited from
possessing a firearm. According to Petitioner
Abongnelah, the text of Pub. Safety § 5-133 imposes the
requirement of knowledge of prohibited status by
reference to Pub. Safety § 5-144, which includes the
word “knowingly[.]” The legislative history of the Public
Safety Article, as explained by this Court in Jones v.
App. 23
State, 420 Md. 437, 23 A.3d 880 (2011), confirms this
interpretation of the plain text.
Petitioner Abongnelah argues that even if Rehaif is
not binding on this Court, it offers “a highly persuasive
guide to reading” Pub. Safety § 5-133 because “the
federal and Maryland statutes are directly analogous”
and both the United States Supreme Court and this
Court employ “the same presumption in favor of
requiring mens rea. . . .” This presumption in favor of
mens rea should, according to Petitioner Abongnelah,
prompt this Court to recognize an element of
knowledge of prohibited status even if it also concludes
that Pub. Safety § 5-144 does not apply.
Petitioner Abongnelah asserts that the Court of
Special Appeals incorrectly found arguendo that the
parties’ stipulation of Petitioner Abongnelah’s prior
felony conviction would have satisfied the element of
knowledge of prohibited status. According to Petitioner
Abongnelah, the stipulation did not establish
knowledge of prohibited status at the time of offense.
Petitioner Abongnelah also contends that the court
erred by finding that the knowledge issue was
unpreserved because defense counsel for Petitioner
Abongnelah used language, both at trial, and in the
opening brief to the Court of Special Appeals that
argued “knowledge of [prohibited] status” was an
element of Pub. Safety § 5-133.
Finally, like Petitioner Howling, Petitioner
Abongnelah asserts that the circuit court erred by not
giving a jury instruction stating that knowledge of
prohibited status was an element of Pub. Safety § 5133.
App. 24
C. The State
In both cases, the State contends that the circuit
court acted within its discretion in refusing to depart
from the Maryland Pattern Jury Instructions, because
the requested jury instructions by Petitioners were
incorrect statements of law.
As a threshold issue, the State argues that
Petitioner Howling’s argument with respect to Pub.
Safety § 5-133.1 and Petitioner Abongnelah’s argument
with respect to evidentiary sufficiency were
unpreserved. According to the State, Petitioner
Howling only requested a modified jury instruction for
possession of a firearm by a prohibited person and did
not request a modified jury instruction for possession
of ammunition by a prohibited person pursuant to Pub.
Safety § 5-133.1. The State notes that Petitioner
Howling requested a jury instruction pursuant to Pub.
Safety § 5-133.1 that omitted scienter language, which
the circuit court used as the jury instruction. Petitioner
Abongnelah’s legal sufficiency argument was waived,
according to the State, because Petitioner Abongnelah
presented an argument on appeal that differed from
the argument at trial. The State asserts that Petitioner
Abongnelah’s trial counsel presented an ignorance of
the law argument, whereas appellate counsel argued,
for the first time in a Reply Brief before the Court of
Special Appeals, that the State must prove knowledge
of prohibited status.
Assuming this Court reaches the merits of
Petitioner Abongnelah’s legal sufficiency argument, the
State argues that Pub. Safety § 5-133 does not require
proof of knowledge of prohibited status. The State also
App. 25
agrees with the Court of Special Appeals that even if
Pub. Safety § 5-133 requires proof of knowledge, the
stipulation of a prior conviction provided sufficient
evidence.
The State argues that Rehaif does not apply to Pub.
Safety § 5-133 because it construes a federal statute
and does not announce a new principle of constitutional
law. The State also identifies material differences
between the state and federal statutes which warrant
distinct interpretations by this Court. The federal
statute at issue in Rehaif expressly stated that the
word “knowingly” modifies the defendant’s status,
whereas Pub. Safety § 5-133 and § 5-133.1 do not.
Therefore, according to the State, the circuit court did
not abuse its discretion in either of Petitioners’ cases by
denying a jury instruction that incorporated the
reasoning of Rehaif.
DISCUSSION
Standard of Review
A. Jury Instruction
A circuit court has broad discretion when
determining whether a jury instruction is warranted by
the facts of the case. Carter v. State, 366 Md. 574, 584,
785 A.2d 348, 353 (2001). We accordingly review the
decision not to provide a jury instruction for abuse of
discretion. Cost v. State, 417 Md. 360, 368, 10 A.3d 184,
189 (2010). We assess whether a circuit court abused
its discretion in denying a request for a particular jury
instruction by determining “(1) whether the requested
instruction was a correct statement of the law;
(2) whether it was applicable under the facts of the
App. 26
case; and (3) whether it was fairly covered [elsewhere
or] in the instructions actually given.” Stabb v. State,
423 Md. 454, 465, 31 A.3d 922, 929 (2011) (citations
omitted); see also Md. Rule 4-325(c). Whether a jury
instruction is a correct statement of law is subject to a
de novo standard of review. Seley-Radtke v. Hosmane,
450 Md. 468, 482, 149 A.3d 573, 581 (2016).
B. Sufficiency of Evidence
We review sufficiency of evidence by asking whether
“any rational trier of fact could have found the
essential elements of the crime beyond a reasonable
doubt.” State v. McGagh, 472 Md. 168, 194, 244 A.3d
1117, 1131–32 (2021) (citations omitted) (emphasis in
original).
Analysis
A. The holding of Rehaif is not applicable to Pub.
Safety § 5-133 and § 5-133.1, and neither
section requires proof of knowledge of status.
As a general principle, interpretations of federal
statutes are not binding on this court’s interpretations
of State statutes. Haas v. Lockheed Martin Corp., 396
Md. 469, 481, 914 A.2d 735, 742 (2007); Pope v. State,
284 Md. 309, 320 n.10, 396 A.2d 1054, 1061 n.10
(1979). This principle also applies to the decisions of
the United States Supreme Court, unless the decision
relies upon or announces a principle of constitutional
law. State v. Matusky, 343 Md. 467, 490, 682 A.2d 694,
705 (1996).
The United States Supreme Court’s interpretation
of 18 U.S.C. § 922(g) neither relied upon nor announced
App. 27
a principle of constitutional law. The scope of the
Court’s review was limited to ordinary statutory
interpretation of “congressional intent” Rehaif, 588
U.S. at ___, 139 S. Ct. at 2195 (emphasis added); see
Staples v. United States, 511 U.S. 600, 605, 114 S. Ct.
1793, 1796–97 (1994) (noting the determination of
required mental state for commission of a federal crime
requires “construction of the statute and . . . inference
of the intent of Congress[]”) (citation omitted).
Therefore, the Court of Special Appeals correctly
concluded, in each of Petitioners’ cases, that the
holding of Rehaif does not bind Maryland courts.
Petitioners argue that even if Rehaif does not bind
this Court, it offers highly persuasive reasoning
because the state and federal statutes are analogous,
and both this Court and the United States Supreme
Court recognize a presumption of mens rea when
interpreting criminal statutes. We are not persuaded
by these arguments and find Rehaif distinguishable
based on our case law and express textual differences
between Pub. Safety § 5-133 and 18 U.S.C. § 922.7
Similarity between a Maryland and a federal
statute is not sufficient justification for this Court to
apply a federal court’s interpretation of a federal
statute to a Maryland statute. “Maryland appellate
courts have interpreted state statutes, rules, and
constitutional provisions differently than analogous
federal provisions on numerous occasions, even where
7
Petitioner Howling did not expressly argue that the reasoning of
Rehaif applies to Pub. Safety § 5-133.1, so we note that our
conclusion as to Pub. Safety § 5-133 applies to § 5-133.1 as well.
App. 28
the state provision is modeled after its federal
counterpart.” Haas, 396 Md. at 482 n.10, 914 A.2d at
742 n.10 (emphasis added).8 “Maryland courts
sometimes prefer interpretations of state statutes
varying from similar federal statutes[.]” Id., 914 A.2d
at 742 n.10.
In Quality Discount Tires, Inc. v. Firestone Tire &
Rubber Co., 282 Md. 7, 12, 382 A.2d 867, 870 (1978),
this Court considered whether the legal standard
articulated by the United States Supreme Court with
respect to price-fixing under the federal Sherman
Antitrust Act should apply to plaintiffs bringing claims
under the analogous Maryland Antitrust Act. The
General Assembly stated that the purpose of the
Maryland Antitrust Act was to “complement the body
of federal law,” and that, in construing the Act, the
courts should “be guided by the interpretation given by
the federal courts to the various federal statutes
dealing with the same or similar matters.” Id. at 10,
382 A.2d at 869 (quoting Md. Code Ann., Commercial
Law § 11-202(a) (1975, 1977 Cum. Supp.)). This Court
accordingly examined how the United States Supreme
Court and the federal circuits have applied the legal
standard under the Sherman Antitrust Act. Id. at 12,
382 A.2d at 870. Despite the similarities in the
statutes, and the General Assembly’s express statutory
directive to turn to federal interpretation for guidance,
this Court recognized that it was “not bound” by the
8
“Put in a more homespun idiom, and paraphrasing a frequent
[parental] admonition, ‘[j]ust because [Congress] ran off a cliff
doesn’t mean [the General Assembly] has to follow suit.’” Haas,
396 Md. at 482 n.10, 914 A.2d at 742 n.10.
App. 29
opinions of federal courts and concluded that the
particular federal legal standard did not apply to the
Maryland Antitrust Act. Id. at 16, 382 A.2d at 872.
Quality Discount Tires demonstrates that this Court
need not import federal interpretations of a statute,
even when a federal and state statute share a similar
purpose and legislative history.9 Pub. Safety § 5-133
and 18 U.S.C. § 922(g) may share the same purpose to
criminalize possession of firearms under certain
conditions, but the textual differences in mens rea
language highlight how Congress and the General
Assembly intended to take separate paths in
criminalizing possession of regulated firearms.
9
Petitioners suggest that Pub. Safety § 5-133 shares a legislative
history with 18 U.S.C. § 922(g). The General Assembly modeled
the Maryland Gun Violence Act after the federal Gun Control Act
of 1968; therefore, according to Petitioners, Pub. Safety § 5-133
should be given a construction similar to its federal counterpart,
18 U.S.C. § 922(g). While Pub. Safety § 5-133 fits within a broader
statute that shares a legal history with a federal act, nowhere
within the specific legislative history of Pub. Safety § 5-133 (or § 5133.1) did the General Assembly indicate that Maryland courts
should look to federal law or federal cases for guidance. Even if
Pub. Safety § 5-133 was at one point directly inherited from 18
U.S.C. § 922(g), the material differences in the plain language of
the statutes necessitate different interpretations. Cf. Office of the
State Prosecutor v. Judicial Watch, Inc., 356 Md. 118, 138, 737
A.2d 592, 603 (1999) (noting that the persuasiveness of the
interpretation of a federal statute depends on its substantive
similarity to a corresponding state statute: “where the purpose and
language of a federal statute are substantially the same as that of
a later state statute, interpretations of the federal statute are
ordinarily persuasive.” (citation omitted) (emphasis added).
App. 30
The federal statute plainly requires the text of 18
U.S.C. § 924, which contains the word “knowingly[,]” to
be read in conjunction with the text of 18 U.S.C.
§ 922(g). 18 U.S.C. §924 provides in pertinent part:
“Whoever knowingly violates subsection . . . (g) . . . of
section 922 shall be fined as provided in this title,
imprisoned not more than 10 years, or both.”
(Emphasis added). 18 U.S.C. § 922(g) provides in
pertinent part: “It shall be unlawful for any person . . .
who, being an alien--[] is illegally or unlawfully in the
United States[] . . . to ship or transport in interstate or
foreign commerce, or possess in or affecting commerce,
any firearm or ammunition.] . . .” (Emphasis added).
Reading these sections together, the United States
Supreme Court in Rehaif observed that the word
“knowingly” in § 924(a)(2) expressly modifies § 922(g).
“And everyone agrees that the word ‘knowingly’ applies
to § 922(g)’s possession element, which is situated after
the status element.” Rehaif, 588 U.S. at ___, 139 S. Ct.
at 2196. “We see no basis to interpret ‘knowingly’ as
applying to the second § 922(g) element but not the
first.” Id. at ___, 139 S. Ct. at 2196 (citation omitted).
“To the contrary, we think that by specifying that a
defendant may be convicted only if he ‘knowingly
violates’ § 922(g), Congress intended to require the
Government to establish that the defendant knew he
violated the material elements of § 922(g).” Id. at ___,
139 S. Ct. at 2196.
The United States Supreme Court concluded that
Congress intended to criminalize possession of a
firearm when the person knows they are “illegally or
unlawfully in the United States” and “possess[ing] . . .
App. 31
any firearm or ammunition.” 18 U.S.C. § 922(g).10 The
plain text of 18 U.S.C. § 924(a) indicates that the word
“knowingly” applies to all of the elements of 18 U.S.C.
§ 922(g).
While the plain text of 18 U.S.C. § 924(a) requires
knowledge of prohibited status, the plain text of Pub.
Safety § 5-133(b) only requires knowledge of the
defendant’s possession of a firearm.
Pub. Safety § 5-133 provides in pertinent part:
(b) Subject to § 5-133.3 of this subtitle, a person
may not possess a regulated firearm if the
person:
(1) has been convicted of a disqualifying
crime;
(2) has been convicted of a violation classified
as a common law crime and received a term
of imprisonment of more than 2 years;
***
(c)(1) A person may not possess a regulated
firearm if the person was previously convicted
of:
(i) a crime of violence;
10
The United States Supreme Court noted the “statutory text
supports the presumption [of scienter].” Rehaif, 588 U.S. at ___,
139 S. Ct. at 2195. The Court defined the presumption of scienter
as “a presumption that criminal statutes require the degree of
knowledge sufficient to ‘mak[e] a person legally responsible for the
consequences of his or her act or omission.’” Id. at ___, 139 S. Ct.
at 2195 (citation omitted).
App. 32
***
(iii) an offense under the laws of another
state or the United States that would
constitute one of the crimes listed in item
(i) . . . of this paragraph if committed in
this State.
(2)(i) Subject to paragraph (3) of this
subsection, a person who violates this
subsection is guilty of a felony and on
conviction is subject to imprisonment not for
less than 5 years and not exceeding 15 years.
(ii) The court may not suspend any part of
the mandatory minimum sentence of 5
years.
(iii) Except as otherwise provided in § 4305 of the Correctional Services Article,
the person is not eligible for parole during
the mandatory minimum sentence.
(3) At the time of the commission of the
offense, if a period of more than 5 years has
elapsed since the person completed serving
the sentence for the most recent conviction
under paragraph (1)(i) or (ii) of this
subsection, including all imprisonment,
mandatory supervisor, probation, and parole:
(i) the imposition of the mandatory
minimum sentence is within the
discretion of the court; and
App. 33
(ii) the mandatory minimum sentence
may not be imposed unless the State’s
Attorney notifies the person in writing at
least 30 days before trial of the State’s
intention to seek the mandatory
minimum sentence.
***
(d)(1) Except as provided in paragraph (2) of this
subsection, a person who is under the age of 21
years may not possess a regulated firearm.
When interpreting the language of a Maryland
statute, the “cardinal rule” of statutory construction “is
to determine what the [General Assembly] intended,
and, as we have so often said, to do that, we turn first
to the words used by the [General Assembly], giving
them their ordinary meaning.” Dimensions Health
Corp. v. Maryland Ins. Admin., 374 Md. 1, 17, 821 A.2d
40, 50 (2003). If “no construction or clarification is
needed or permitted . . . a plainly worded statute must
be construed without forced or subtle interpretations
designed to extend or limit the scope of its operation.”
Id., 821 A.2d at 50 (citations omitted).
The plain text of Pub. Safety § 5-133 omits mens rea
language of knowledge. The statute uses the word
“possess” which this Court has interpreted to require
knowledge of possession. Parker v. State, 402 Md. 372,
407, 936 A.2d 862, 883 (2007) (“A possession conviction
normally requires knowledge of the illicit item. . . .
Knowledge of the presence of an object is normally a
prerequisite to exercising dominion and control.”)
(citations and quotation marks omitted). The plain text
App. 34
of Pub. Safety § 5-133.1 similarly omits mens rea
language and uses the word possess.11
In criminalizing the possession of a firearm and
ammunition by a disqualified person, the clear intent
of the General Assembly was to require only knowledge
of that possession. Lillian C. Blentlinger, LLC v.
Cleanwater Linganore, Inc., 456 Md. 272, 294, 173 A.3d
549, 562 (2017) (“[W]e neither add nor delete words to
a clear and unambiguous statute to give it a meaning
not reflected by the words that the General Assembly
used or engage in forced or subtle interpretation in an
attempt to extend or limit the statute’s meaning.”).
This analysis is also consistent with our case law
interpreting the mens rea element of criminal statutes.
“[T]he General Assembly has ‘wide latitude’ to dictate
the statutory elements of its criminal enactments.”
Lawrence, 475 Md. at 408, 257 A.3d at 602 (citation
omitted). In Lawrence, this Court assessed whether
Crim. Law § 4-203(a)(1)(i) established a strict liability
offense of wearing, carrying, or transporting a handgun
on or about the person. Id. at 389, 257 A.3d at 591.
11
Pub. Safety § 5-133.1 provides:
(a) In this section, “ammunition” means a cartridge, shell,
or any other device containing explosive or incendiary
material designed and intended for use in a firearm.
(b) A person may not possess ammunition if the person is
prohibited from possessing a regulated firearm under § 5133 (b) or (c) of this subtitle.
(c) A person who violates this section is guilty of a
misdemeanor and on conviction is subject to imprisonment
not exceeding 1 year or a fine not exceeding $1,000 or both.
App. 35
After examining the plain text, legislative history, and
relevant case law of the statute, this Court concluded:
[T]he General Assembly exercised its discretion
in declining to include language indicating mens
rea in [Crim. Law] § 4-203(a)(1)(i). While Mr.
Lawrence’s argument in favor of a presumption
of mens rea is well-founded, it fails to overcome
the significant indicia of legislative intent to the
contrary in this case. . . . [T]he text and structure
of [Crim. Law] § 4-203 make it clear that the
General Assembly did not intend to include
‘knowledge’ as an element of subparagraph
(a)(1)(i).
Id. at 412, 257 A.3d at 604–05 (emphasis added).
Unlike Crim. Law § 4-203(a)(1)(i) in Lawrence, in
which this Court determined that the statute lacked an
element of knowledge, Maryland appellate courts have
repeatedly recognized that the General Assembly
intended to only require the mens rea element of
knowledge of possession pursuant to Pub. Safety § 5133. Parker, 402 Md. at 407, 936 A.2d at 83 (“In order
for the evidence supporting the handgun possession
conviction to be sufficient, it must demonstrate either
directly or inferentially that Parker exercised ‘some
dominion or control over the prohibited [item]’. . . .
Knowledge of the presence of an object is normally a
prerequisite to exercising dominion and control.”)
(alteration in original) (citation and other marks
omitted); Hogan v. State, 240 Md. App. 470, 516–17,
205 A.3d 101, 127–28 2019) (“the mens rea of simple
unlawful possession requires only the defendant’s
awareness that he is in actual possession of the item he
App. 36
is not permitted to possess. The charge of which
appellant was convicted did require proof of mens rea,
but not the mens rea appellant suggests. Although
[Pub. Safety §] 5-133(b) is silent concerning the mens
rea required, the Court of Appeals has held that a
‘possession conviction normally requires knowledge of
the illicit item.’”) (citations omitted) (emphasis added);
Brice, 225 Md. App. at 694, 126 A.3d at 263 (“to satisfy
the mens rea requirement for a violation of Section 5133, the State was required to prove only that [the]
defendant knew that he [or she] was in possession of a
handgun]”; McNeal v. State, 200 Md. App. 510, 524, 28
A.3d 88, 96 (2011) (holding that the circuit court
correctly instructed the jury “when it said: ‘the State
has the obligation to prove . . . knowledge on the part
of’[the defendant] that ‘he was in possession of a
handgun[]’”.
None of the Maryland cases interpreting Pub.
Safety § 5-133 have extended the knowledge
requirement to prohibited status. While Petitioners cite
Dawkins v. State, 313 Md. 638, 547 A.2d 1041 (1988),
and Chow v. State, 393 Md. 431, 903 A.2d 388 (2006),
for the proposition that Pub. Safety § 5-133 and § 5133.1 require knowledge of prohibited status, these
cases support our conclusion that the plain text of Pub.
Safety § 5-133 and § 5-133.1 does not.
In Dawkins, this Court acknowledged the
presumption of a mens rea element for all crimes:
“[t]here can be no crime, large or small, without an evil
mind. . . . It is, therefore, a principle of our legal
system . . . that the essence of the offense is the
wrongful intent, without which it cannot exist.” Id. at
App. 37
643, 547 A.2d at 1043 (citing 1 Bishop’s Crim. Law,
§ 287 (9th ed. 1923)). The Dawkins Court applied this
presumption to Md. Code (1957, 1987 Repl. Vol.), Art.
27, § 287(a) and (d)12 to find that “knowledge” is an
element of the offenses of possession of a controlled
dangerous substance and possession of controlled
paraphernalia. Id. at 649, 547 A.2d at 1046.
Similar to the statute at issue in Dawkins, Pub.
Safety § 5-133 does not use the word “knowingly” or
“knowledge” Accordingly, and like the statute only
criminalizing knowing possession in Dawkins, Pub.
Safety § 5-133 only criminalizes knowledge of
possession of a regulated firearm by a prohibited
person. Dawkins supports our conclusion that the mens
rea element of knowledge contained in Pub. Safety § 5133 only applies to possession.
Chow is distinguishable because the defendant in
Chow and Petitioners in the instant case were charged
under different sections of the Public Safety Article,
12
Art. 27, § 287, provided in pertinent part:
Except as authorized by this subheading, it is unlawful for
any person:
(a) To possess or administer to another any controlled
dangerous substance, unless such substance was obtained
directly, or pursuant to a valid prescription or order from
a practitioner, while acting in the course of his [or her]
professional practice.
***
(d) To possess or distribute controlled paraphernalia.
Dawkins, 313 Md. at 640 n.1, 547 A.2d at 1041 n.1.
App. 38
which by their plain text, require different mens rea
elements. In Chow, the defendant was charged under
Md. Code (1957, 1996 Repl. Vol., 2002 Supp.), Art. 27,
§ 449.13 393 Md. at 434, 903 A.2d at 389. This Court
examined the scope of the mens rea element of
knowledge pursuant to Art. 27, § 449:
(f) Knowing participants in sale, rental,
etc.—Except as otherwise provided in this
section, any dealer or person who knowingly
participates in the illegal sale, rental, transfer,
purchase, possession, or receipt of a regulated
firearm in violation of this subheading shall be
guilty of a misdemeanor and upon conviction
shall be fined not more than $10,000 or
imprisoned for not more than 5 years, or both.
Each violation shall be considered a separate
offense.
393 Md. at 463, 903 A.2d at 407 (emphasis added).
This Court held that the statute requires that the
“actor must know that he or she is committing an
‘illegal sale.’” Id. at 471, 903 A.2d at 412. Unlike the
statute in Pub. Safety § 5-133, which omits any
“knowledge” language, Art. 27, §499 plainly subjected
a person who “knowingly participates in the illegal . . .
possession . . . of a regulated firearm” to criminal
penalty. (Emphasis added). The Chow Court found the
word “knowingly” unambiguously indicated the intent
of the General Assembly to require, pursuant to Art. 27
§ 499, proof that the defendant had knowledge of the
13
In 2013, this section was recodified at Pub. Safety § 5-144.
App. 39
act of possession of a regulated firearm and knowledge
that such possession of a regulated firearm is illegal.
Id. at 473, 903 A.2d at 413.
Unlike the statute in Chow, which used he word
“knowingly” before prohibited status and possession,
Pub. Safety § 5-133 neither includes the word
“knowingly” nor one of its variants. While Petitioners
are generally correct that this Court, like the United
States Supreme Court, presumes a mens rea element,
this presumption cannot override the clear intent of the
General Assembly to attach a mens rea element of
knowledge only to possession pursuant to Pub. Safety
§ 5-133. Lawrence, 475 Md. at 415, 257 A.3d at 606.
We are also not persuaded by Petitioners’ argument
that the word “knowingly” in Pub. Safety § 5-144
should modify the word “possess” in Pub. Safety § 5-133
in the same way that “knowingly” in 18 U.S.C.
§ 924(a)(2) modifies “possess” in 18 U.S.C. § 922(g),
because the plain language of Pub. Safety § 5-144(a)
expressly precludes application of its language to Pub.
Safety § 5-133.
Pub. Safety § 5-144 provides:
(a) Except as otherwise provided in this subtitle,
a dealer or other person may not:
(1) knowingly participate in the illegal sale,
rental, transfer, purchase, possession, or
receipt of a regulated firearm in violation of
this subtitle; or
(2) knowingly violate § 5-142 of this subtitle.
App. 40
(b) A person who violates this section is guilty of
a misdemeanor and on conviction is subject to
imprisonment not exceeding 5 years or a fine not
exceeding $10,000 or both.
(c) Each violation of this section is a separate
crime.
(Emphasis added).
Pub. Safety § 5-144(a) is a “catch-all” provision,
which supplies a criminal penalty for, among other
prohibited acts, possession of a firearm, but only when
not “otherwise provided in this subtitle.” Jones, 420 Md.
at 450, 23 A.3d at 887 (quoting the substantially
similar predecessor 14 to Pub. Safety § 5144(a))(emphasis added). Pub. Safety § 5-133(c) is part
of the “subtitle” referenced in Pub. Safety § 5-144(a).
Pub. Safety § 5-133(c) also provides the specific penalty
for possession, so by its plain language, the general
“catch-all” provision pursuant to Pub. Safety § 5-144(a)
does not apply to Pub. Safety § 5-133. See Massey v.
Sec’y, Dept. of Pub. Safety and Corr. Servs., 389 Md.
496, 511 n.4, 886 A.2d 585, 594 n.4 (2005) (“The
question is one of legislative intent, and we have long
followed the rule that, when there is a conflict between
a general statute and one dealing specifically with the
issue at hand, the specific statute controls.”) (citation
omitted).15 Petitioners’ application of the word
14
The Jones Court was interpreting Pub. Safety § 5-143 (2003),
which was renumbered as Pub. Safety § 5-144 in 2013.
15
Notably, Pub. Safety § 5-133(d) does not provide a specific
penalty provision for possession of a regulated firearm by a person
App. 41
“knowingly” contained in Pub. Safety § 5-144 to Pub.
Safety § 5-133 would necessarily ignore the clause,
“[e]xcept as otherwise provided in this subtitle[,]”
thereby impermissibly rendering the clause nugatory.
Whiting-Turner Contracting Co. v. Fitzpatrick, 366 Md.
295, 303, 783 A.2d 667, 671 (2001) (noting statutes
must be read to avoid rendering “any portion,
meaningless, surplusage, superfluous or nugatory[ ]”
(citation omitted).
This interpretation of the specific penalty provision
of Pub. Safety § 5-133(c) precluding application of the
“catch-all” penalty provision of Pub. Safety § 5-144
accords with this Court’s holding in Oglesby v. State,
441 Md. 673, 109 A.3d 1147 (2015). In Oglesby, this
Court stated “[t]here is no ambiguity . . . as to the
penalty that the [General Assembly] has authorized for
a conviction [pursuant to Pub. Safety § 5-133].” Id. at
698, 109 A.3d at 1162. “[T]he General Assembly
intended to provide for a mandatory minimum sentence
for a violation of [Pub. Safety] § 5-33(c)(1)(ii).” Id., 109
A.3d at 1162. “[T]he appropriate penalty for a violation
of [Pub. Safety] § 5-133(c)(1)(ii) is the penalty the
[General Assembly] prescribed in [Pub. Safety] § 533(c)(2).” Id. at 688, 109 A.3d at 1156.
Our plain language analysis conforms with the
legislative history of the statute. Johnson v. State, 467
under the age of twenty-one. The absence of a specific penalty
provision indicates that the “catch-all” language pursuant to Pub.
Safety § 5-144(a) would apply. We need not address this particular
issue because Petitioner Abongnelah did not challenge the
sufficiency of evidence supporting his conviction pursuant to Pub.
Safety § 5-133(d).
App. 42
Md. 362, 375, 225 A.3d 44, 51 (2020) (“[T]he modern
tendency of this Court is to continue the analysis of the
statute beyond the plain meaning to examine ‘extrinsic
sources of legislative intent’ in order to ‘check [ ] our
reading of a statute’s plain language[.]’. . .”) (citations
omitted).
Previous versions of Pub. Safety § 5-133 have
consistently omitted language indicating a knowledge
requirement. By declining to add a requirement of
knowledge of prohibited status over the course of
several decades, the General Assembly has acquiesced
in Maryland appellate courts’ interpretation of Pub.
Safety § 5-133. See Lawrence, 475 Md. at 414, 257 A.3d
at 606; Williams v. State, 292 Md. 201, 210, 438 A.2d
1301, 1305 (1981) (“The General Assembly is presumed
to be aware of this Court’s interpretation of its
enactments and, if such interpretation is not
legislatively overturned, to have acquiesced in that
interpretation.” (citation omitted).
In 2003, the General Assembly recodified existing
public safety laws into the current Public Safety
Article. The Bill File for S.B. 1 (Md. 2003) spans over
2,000 pages and provides no contrary evidence that the
General Assembly intended, or even contemplated,
adding knowledge of prohibited status to Pub. Safety
§ 5-133. The Public Safety Article Review Committee
examined Pub. Safety § 5-133 and found some
ambiguity in its language with respect to who may
constitute a prohibited person, but there was no
mention of whether the mens rea requirement of the
statute was ambiguous.
App. 43
We conclude that Pub. Safety § 5-133 and § 5-133.1
do not require the State to prove that the defendant
had knowledge of prohibited status.
B. The circuit court did not abuse its
discretion by declining to give Petitioners’
requested jury instructions.
The circuit court in each case declined to give jury
instructions that deviated from Maryland Pattern Jury
Instructions. Maryland Rule 4-32516 governs the
procedure that a court must follow when giving
instructions to a jury. Atkins v. State, 421 Md. 434, 443,
26 A.3d 979, 984 (2011). A circuit court “must give a
requested jury instruction where ‘(1) the instruction is
a correct statement of law; (2) the instruction is
applicable to the facts of the case; and (3) the content
of the instruction was not fairly covered elsewhere in
instructions actually given.’” Cost, 417 Md. at 368S69,
10 A.3d at 189 (quoting Dickey v. State, 404 Md. 187,
197S98, 946 A.2d 444, 450 (2008)).
The circuit court provided the Maryland Pattern
Jury Instruction for prohibited possession of a firearm:
16
Maryland Rule 4-325(c) provides:
The court may, and at the request of any party shall,
instruct the jury as to the applicable law and the extent to
which the instructions are binding. The court may give its
instructions orally or, with the consent of the parties, in
writing instead of orally. The court need not grant a
requested instruction if the matter is fairly covered by
instructions actually given.
App. 44
The defendant is charged with possessing a
regulated firearm after having been convicted of
a crime that disqualified [him] [her] from
possessing a regulated firearm. In order to
convict the defendant, the State must prove:
(1) that the defendant knowingly possessed a
regulated firearm; and
(2) that the defendant was previously
convicted of a crime that disqualified [him]
[her] from possessing a regulated firearm.
[The State and the defendant agree and
stipulate that the gun in this case is a regulated
firearm.] . . .
MPJI Cr. § 4:35.6.
As discussed above, this instruction correctly
articulates the elements of Pub. Safety § 5-133. It
requires the State to prove knowledge of possession of
a firearm. By declining to modify the pattern jury
instruction with the addition of knowledge of
prohibited status, the circuit court provided the jury
with instructions that correctly stated Maryland law.
C. There was legally sufficient evidence to
convict Petitioner Abongnelah pursuant to
Pub. Safety § 5-133.
As a threshold issue, we agree with the Court of
Special Appeals that Petitioner Abongnelah’s argument
with respect to knowledge of legal status should have
been rendered unpreserved for review by presenting a
different argument for legal sufficiency on appeal than
App. 45
at trial. Starr v. State, 405 Md. 293, 301, 951 A.2d 87,
91 (2008); see also Graham v. State, 325 Md. 398,
416–17, 601 A.2d 131, 140 (1992); State v. Lyles, 308
Md. 129, 135–36, 571 A.2d 761, 764–65 (1986); Muir v.
State, 308 Md. 208, 218–19, 517 A.2d 1105, 1110
(1986).
We exercise our discretion pursuant to Md. Rule 8131(a) to reach the merits of the legal sufficiency issue
to “promote the orderly administration of justice[]” and
to prevent addressing the consolidated cases within
this opinion “in a piecemeal fashion, thereby saving
time and expense and accelerating the termination of
litigation.” Jones v. State, 379 Md. 704, 715, 843 A.2d
778, 784 (2004).
In assessing the sufficiency of the evidence to
sustain a criminal conviction, it is the responsibility of
the appellate court to determine “‘whether, after
viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable
doubt.’” Manion, 442 Md. at 430, 112 A.3d at 513
(quoting Taylor v. State, 346 Md. 452, 457, 697 A.2d
462, 464 (1997)) (emphasis in original) (citation
omitted). This Court adopted this standard from the
United States Supreme Court case, Jackson v.
Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789
(1979).
“[O]ur concern is only whether the verdict was
supported by sufficient evidence, direct or
circumstantial, which could fairly convince a trier of
fact of the defendant’s guilt of the offenses charged
beyond a reasonable doubt.” Taylor, 346 Md. at 457,
App. 46
697 A.2d at 465; State v. Albrecht, 336 Md. 475, 487,
649 A.2d 336, 341 (1994) (“[I]t is neither our duty nor
our role to assess the credibility of the witnesses who
testified nor to weigh the evidence presented. Rather,
we shall only review that evidence which supported the
State’s case in order to determine whether any rational
trier of fact could have convicted the defendant of the
crimes charged.”) (emphasis in original).
The State provided sufficient evidence that
Petitioner Abongnelah knew that he possessed a
firearm. In a recorded jail call, Petitioner Abongnelah
admitted that he possessed a firearm at the time of
arrest: “I just so happened to get pulled over, and my
man got pulled over . . . and I had a gun in my pocket.”
(Emphasis added). Petitioner Abongnelah also
stipulated to his prior felony conviction that prohibits
possession of a firearm pursuant to Pub. Safety § 5133(b). Therefore, we hold that there was legally
sufficient evidence to convict Petitioner Abongnelah.
CONCLUSION
For the reasons previously expressed, we affirm the
judgments of the Court of Special Appeals.
IN NO. 35, JUDGMENT OF THE
COURT OF SPECIAL APPEALS IS
AFFIRMED. COSTS TO BE PAID
BY PETITIONER.
IN NO. 36, JUDGMENT OF THE
COURT OF SPECIAL APPEALS IS
AFFIRMED. COSTS TO BE PAID
BY PETITIONER.
App. 47
APPENDIX B
UNREPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 2087
September Term, 2019
[Filed February 4, 2021]
__________________________
MASHOUR E. HOWLING )
)
v.
)
)
STATE OF MARYLAND
)
__________________________ )
Circuit Court for Montgomery County
Case No. 135898C
Fader, C.J.,
Beachley,
Wilner, Alan M.
(Senior Judge, Specially Assigned),
JJ.
*This is an unreported opinion, and it may not be cited
in any paper, brief, motion, or other document filed in
this Court or any other Maryland Court as either
App. 48
precedent within the rule of stare decisis or as
persuasive authority. Md. Rule 1-104.
______________________________________
Opinion by Beachley, J.
______________________________________
A jury in the Circuit Court for Montgomery County
convicted appellant, Mashour Howling, of possession of
a firearm by a prohibited person, possession of
ammunition by a prohibited person, and transporting
a loaded handgun in a vehicle. After the trial court
sentenced him to a suspended term of nine years’
imprisonment, Howling filed a timely notice of appeal.
Howling presents the following questions for our
review:
1. Did the circuit court err by declining to
give defense counsel’s proposed
instructions on the offenses of illegal
possession of a firearm and illegal
possession of ammunition?
2. Did the circuit court err by denying
defense counsel’s request to ask a version
of a voir dire question that would not be
in compound form?
3. Did the circuit court commit plain error
by asking several other compound
questions during voir dire?
For the reasons that follow, we affirm the judgments of
the trial court.
App. 49
FACTS AND LEGAL PROCEEDINGS
On March 20, 2019, Maryland Park Police Corporal
Brian Rumsey was on his lunch break at a shopping
center on Layhill Road, Montgomery County, when he
observed two men who caught his attention because
they appeared to be “checking their surroundings,
constantly looking around,” without any apparent
purpose.1 One of the men walked to a vehicle with what
appeared to be a beer in a bag in his hand, stood behind
the vehicle, and looked back toward the liquor store in
the shopping center.
Worried that “something [was] not right,” Corporal
Rumsey entered the liquor store, where he observed
the second man at the counter buying beer and a cigar.
As he approached the man, Corporal Rumsey smelled
the odor of marijuana coming from his person. Corporal
Rumsey watched the man leave the liquor store and
join the first man; the two men then crossed Layhill
Road together and entered the passenger side of a
parked Dodge Ram pickup truck.
Corporal Rumsey flagged down a marked
Montgomery County Police Department cruiser and
explained his observations to Officer Sean McKinney,
who approached the pickup truck. The passenger door
was open, and one of the men was outside the vehicle.
As Officer McKinney approached, he smelled a “strong
odor of marijuana” emanating from the vehicle and/or
its passengers. When the man outside the vehicle
looked over his shoulder and saw Officer McKinney, he
1
Neither of the men was Howling. They were later identified as
John Gordon and Michael Brandon.
App. 50
“made a series of movements towards the inside of [the]
vehicle.” The man told Officer McKinney that his
friend, later identified as Howling, was getting a
haircut and that he and the second man were waiting
for him.2
The pickup truck was eventually searched, yielding
a rental agreement in Howling’s name, a loaded Glock
semiautomatic handgun, two magazines, and
approximately $4,000 in cash.3 Two officers then
located Howling in the barbershop and arrested him.
During a recorded interview with the police,
Howling explained that he lives in Pennsylvania, but
that his mother has lived in Montgomery County since
he was a child. He explained that he was in the area or
a doctor’s appointment, and his friends “just wanted to
ride down with [him].” Howling said he did not realize
the gun, which was legally registered to him in
Pennsylvania, was in the truck “until on the way down”
and that the money was for “stuff” he had to pick up for
work. Howling acknowledged that he had been
convicted of assault while attending college in
Pennsylvania,4 which the officer explained prohibited
him from possessing a firearm in Maryland, but he
claimed he did not intentionally bring the gun into the
State.
2
The encounter was captured on Officer McKinney’s body-worn
camera, and the recording was admitted into evidence.
3
4
The parties stipulated that the gun was operable.
The parties stipulated that Howling had been convicted of simple
assault in Pennsylvania in 2002.
App. 51
DISCUSSION
I. Jury Instructions
Howling first contends that the trial court erred as
a matter of law when it declined to propound his
proposed jury instructions relating to the charges of
illegal possession of a firearm and illegal possession of
ammunition, and instead gave applicable pattern jury
instructions. He maintains that, in light of the United
States Supreme Court’s recent decision in Rehaif v.
United States, ___ U.S. ___,139 S. Ct. 2191 (2019), his
requested instructions properly identified a scienter
element of the charged crimes and should have been
given to the jury.
At the close of the State’s case-in-chief, defense
counsel moved for judgment of acquittal on the charges
of illegal possession of the firearm and ammunition on
the ground that Howling was unaware that he could
not legally possess either in Maryland. The court
denied the motion, ruling that “[w]ith respect to the
argument of scienter of knowledge about the gun laws
in Maryland, the statute that prohibits [ ] certain
persons from having a firearm is a strict liability
offense. It does not require that intent be proven.”
After declining to present evidence, Howling
renewed his motion for judgment of acquittal, citing
Rehaif for the proposition that, as a Pennsylvania
resident who was convicted of assault in Pennsylvania,
the burden was on the State to show that he should
have known of the status that would make him a
person prohibited from possessing a firearm in
Maryland. Defense counsel analogized Howling’s case
App. 52
with the facts in Rehaif, in which the United States
Supreme Court held that the government must show
that the defendant knowingly possessed a firearm and
that he knew he belonged to a group whose status
would make him a person prohibited from possessing
a firearm in the United States. See id. at 2194. Counsel
explained that, if the court were to deny the motion for
judgment of acquittal, she would request proposed jury
instructions “that add essentially the element that says
the Government must prove [that] he knew that he was
a prohibited person based on his conviction” in
Pennsylvania.5
The prosecutor countered that Rehaif involved
federal law. In light of what she considered to be a
“very clear” pattern jury instruction on the charged
crimes, Maryland Pattern Jury Instruction-Criminal
(“MPJI-Cr”) 4:35.6,6 the prosecutor requested that the
5
Howling moved to supplement the appellate record with defense
counsel’s proposed jury instructions containing the requested
language, but this Court denied his motion on the ground that the
written instructions he sought to add to the record were “never
actually presented to the trial court, except insofar as they were
described or referred to verbally, which is reflected in the
transcript. As a result, they were not before the trial court and are
not properly made part of the appellate record.”
6
MPJI-Cr 4:35.6 provides:
The defendant is charged with possessing a regulated
firearm after having been convicted of a crime that
disqualified [him] [her] from possessing a regulated
firearm. In order to convict the defendant, the State must
prove:
(1) that the defendant knowingly possessed a
App. 53
court deny the motion for judgment of acquittal and
find the pattern jury instructions sufficient, especially
because the Rehaif case was based on the
interpretation of a federal criminal statute and the
defense’s requested instructions therefore improperly
added an element to the pertinent State statute.
The trial court ruled:
Well, a trial court that uses a jury instruction
other than a pattern jury instruction when there
regulated firearm; and
(2) that the defendant was previously convicted of a
crime that disqualified [him] [her] from possessing a
regulated firearm.
[The State and the defendant agree and stipulate that the
gun in this case is a regulated firearm.]
***
[[The State and the defendant agree and stipulate that the
defendant was previously convicted of a crime that
disqualifies [him] [her] from possessing a regulated
firearm.]]
Possession means having control over the firearm, whether
actual or indirect. More than one person can be in
possession of the same firearm at the same time. A person
not in actual possession, who knowingly has both the
power and the intention to exercise control over a firearm,
has indirect possession of that firearm. In determining
whether the defendant has indirect possession of a
firearm, you should consider all of the surrounding
circumstances. These circumstances include the distance
between the defendant and the firearm, and whether the
defendant has some ownership or possessory interest in
the location where the firearm was found.
App. 54
is a pattern jury instruction that directly
addresses the elements at issue, does so at the
trial court’s own peril.
The appellate court in Annapolis has
repeatedly in many cases warned trial judges
about essentially going off base and giving
instructions that are not the approved Maryland
pattern jury instructions. There are some
occasions upon which there is an issue that is
not addressed by a Maryland pattern jury
instruction but this isn’t that case. I think this
case does what is appropriate in this case and
that is put the issue before the jury and the jury
can decide whether the elements have been
proven. . . . This jury instruction clearly cites
correctly the law and it does not preclude the
defense from arguing the issue that you’re
raising at all.
During jury instructions, the trial court recited
almost verbatim MPJI-Cr 4:35.6 relating to possessing
a regulated firearm and ammunition after having been
convicted of a disqualifying crime. Defense counsel
declared herself satisfied with the instructions as
given, “[s]ubject to our previous objection.”
In her closing argument, defense counsel told the
jury:
So in Pennsylvania, he legally transferred this
un to himself. So he’s somebody who has an
address in Johnson Town, Pennsylvania, his
phone number is in Pennsylvania and he told
detectives, he came down with his mother
App. 55
because he had the gun for eight to 10 years.
He’s had other guns. It just didn’t even occur to
him that he couldn’t have that gun in Maryland.
And the issue really is how could he have
known. I mean the State just got up here and
said the law applies to anyone. But did you
know? And it’s different when he was actually in
Pennsylvania and he did everything he was
supposed to do to have that, that he would
expect to know that here in Maryland, it’s a
problem.
There are three different counts today. The
first count is the possession of a firearm by a
prohibited person. And then the third count as
the State said is possession [of ammunition] by
a prohibited person. One of the instructions that
the Judge read to you is to look at each count.
And those re the two counts that we’re asking
that you find Mr. Howling not guilty because he
didn’t know that he couldn’t have that gun.
*
*
*
So, ladies and gentlemen, we’d ask the State,
because it’s their burden to get back up here and
talk to you again about this case, and this is one
of those somewhat unusual cases because we
already conceded that, yes, Mr. Howling
shouldn’t have had a handgun. But we are
asking that you, as he is, presumed innocent
until they prove to you beyond a reasonable
doubt because it is their burden that he knew
and understood that he couldn’t have that gun in
App. 56
Maryland because he did legally have that gun
in Pennsylvania, the place where he’s from, the
place where he lives, the place where he got the
conviction almost 18 years ago, a place where
he’d purchased and owned a firearm since then.
He was just trying to come here to run some
errands. It doesn’t mean he knows every law in
the [S]tate of Maryland. And most people don’t
actually know every law in the [S]tate of
Maryland. So for that reason, we’re asking that
you find him not guilty of possession of a firearm
by a prohibited person and not guilty of
possession of ammunition by a prohibited
person.
Maryland Rule 4-325(c) provides: “The court may,
and at the request of any party shall, instruct the jury
as to the applicable law.” We review “trial court’s
refusal or giving of a jury instruction under the abuse
of discretion standard.” Stabb v. State, 423 Md. 454,
465 (2011) (citing Gunning v. State, 347 Md. 332, 351
(1997)). In evaluating whether an abuse of discretion
occurred, we consider the following factors:
“(1) whether the requested instruction was a correct
statement of the law; (2) whether it was applicable
under the facts of the case; and (3) whether it was
fairly covered in the instructions actually given.” Id.
(citing Gunning, 347 Md. at 348). Howling’s
assignment of error rests on the first factor.
Howling claims that the trial court abused its
discretion in declining to give his requested jury
instructions on illegal possession of a firearm and
ammunition in light of Rehaif, which held that the
App. 57
government must prove that a defendant knew both
that he possessed a firearm and that he belonged to the
relevant class of persons barred from possessing a
firearm.7 In Howling’s view, the trial court abused its
discretion in declining to give instructions advising the
jurors that they were required to find that he knew he
was barred from possessing a firearm and ammunition
in Maryland, particularly where he could legally
possess those items in Pennsylvania. We disagree.
Rehaif is not dispositive in this case. As the United
States Court of Appeals for the Second Circuit
explained in Mata v. United States:
The Supreme Court’s Rehaif decision
resolved only a question of statutory
interpretation and did not announce a rule of
constitutional law (much less a new one, or one
that the Supreme Court has made retroactive on
collateral review or that was previously
unavailable). Rehaif clarified the mens rea
7
In Rehaif, the defendant attended a university in the United
States on a nonimmigrant student visa but was dismissed and
informed that his “‘immigration status’ would be terminated unless
he transferred to a different university or left the country. Rehaif
did neither.” 139 S. Ct. at 2194. After Rehaif went shooting at a
firing range, he was prosecuted and convicted of possessing
firearms while unlawfully present in the United States. Id.
On review, the Supreme Court concluded, based upon the plain
language of the applicable statutes, that in prosecutions under 18
U.S.C. § 922(g), in combination with § 924(a)(2), which provides
penalties for those who “knowingly” violate § 922(g), the
government is required to prove “both that the defendant knew he
possessed a firearm and that he knew he belonged to the relevant
category of persons barred from possessing a firearm.” Id. at 2200.
App. 58
applicable to a violation of 18 U.S.C. § 922(g),
holding that the government must prove that a
defendant knew both that he possessed a
firearm and that he belonged to the relevant
class of persons barred from possessing a
firearm. In reaching that decision, the Supreme
Court applied a standard ‘interpretive maxim’ to
discern ‘congressional intent’ about the meaning
of the word ‘knowingly’ as it appears in the text
of § 922(g). In other words, the Supreme Court
was simply construing a statute.
969 F.3d 91, 93 (2d Cir. 2020) (internal citations
omitted). Because the Rehaif decision was based on
statutory interpretation of a federal statute, rather
than on constitutional law, we are not bound by
Rehaif’s precedent.8 See State v. Matusky, 343 Md. 467,
490 (1996) (When the Supreme Court’s decision does
not rely on federal constitutional principles, it “is not
binding on the states.”); see also Dravo v. State, 46 Md.
App. 622, 630 (1980).
We therefore reject Howling’s reliance on Rehaif
and instead apply the analysis set forth in Brice v.
State, 225 Md. App. 666 (2015). In Brice, the appellant
argued that “the evidence was insufficient to sustain
[his] conviction for illegal possession of a regulated
firearm because the State introduced no evidence that
appellant had knowledge that he was disqualified from
possessing a firearm.” Id. at 693.
8
Moreover, as the State points out in its brief, the federal statute
at issue in Rehaif contains language that is materially different
from the Maryland statutes under consideration here.
App. 59
We first set out to determine “whether there is a
knowledge of disqualification element” to the crime of
illegal possession of a regulated firearm, as codified in
Md. Code (2003, 2018 Repl. Vol.), § 5-133(b)(1) of the
Public Safety Article (“PS”).9 Id. We explained that
“‘[w]hile ignorance of fact may sometimes be admitted
as evidence of lack of criminal intent, ignorance of the
law ordinarily does not give immunity from
punishment for crime, for every man is presumed to
intend the necessary and legitimate consequences of
what he knowingly does.’” Id. at 694 (quoting Hopkins
v. State, 193 Md. 489, 498-99 (1949)).
We noted that, under the express language of the
statute,
a defendant may not “knowingly participate
in . . . possession . . . of a regulated firearm.” PS
§ 5-144(a)(1).[10] There is no language in the
9
PS § 5-133(b)(1) prohibits a person from possessing a regulated
firearm if he or she has been convicted of a disqualifying crime. PS
§ 5-133(c)(1)(iii), at issue in this matter, is similar and prohibits a
person from possessing a regulated firearm if he or she as been
convicted of “an offense under the laws of another state or the
United States that would constitute one of the crimes listed in item
(i) or (ii) of this paragraph if committed in this State.” And,
pursuant to PS § 5-133.1(b), a person prohibited from possessing
a firearm under § 5-133(b) or (c) may not possess ammunition.
There appears to be no dispute that Howling’s assault conviction
in Pennsylvania constitutes a crime of violence in Maryland.
10
The penalty provision, set forth in PS § 5-144, states, in
pertinent part:
(a) Except as otherwise provided in this subtitle, a dealer
or other person may not:
App. 60
statute requiring a defendant to know that he is
disqualified. In McNeal v. State, this Court held
that, to satisfy the mens rea requirement for a
violation of Section 5-133, the State was
required to prove only that defendant knew that
he was in possession of a handgun. 200 Md. App.
510, 524, 28 A.3d 88 (2011), aff’d, 426 Md. 455,
44 A.3d 982 (2012). The facts of the instant case
clearly satisfy such requirement, because
appellant admitted to Agents Boroshok and
Tolomeo that “he acquired the handgun from
what he termed a junkie in the White Marsh
area. That he made a trade for an eight ball of
crack cocaine for it.”
Id. (alterations in original).
Although Brice involved a challenge to evidentiary
sufficiency, the same analysis applies to Howling’s
proposed jury instructions. As Brice makes clear, the
State was only required to prove that Howling knew he
was in possession of a firearm and ammunition, not
that Howling knew his Pennsylvania conviction
disqualified him from possessing a regulated firearm
and ammunition in Maryland. The State supplied proof
of Howling’s requisite knowledge of possession through
his recorded statement to the police, in which he
admitted that he knew the firearm was in his vehicle
when he traveled to Maryland on March 20, 2019.
(1) knowingly participate in the illegal sale, rental,
transfer, purchase, possession, or receipt of a regulated
firearm in violation of this subtitle[.]
App. 61
We conclude that the non-pattern jury instructions
requested by Howling, which sought to add an element
to the charged crimes, were not correct statements of
Maryland law. Therefore, the trial court did not abuse
its discretion in declining to give them and by giving
pattern jury instruction MPJI-Cr 4:35.6 instead.
II. & III. Voir dire
Howling also asserts that the trial court erred or
abused its discretion in declining to propound his
requested version of a voir dire question regarding the
prospective jurors’ prior experiences as witnesses,
victims, or participants in a criminal proceeding as
redundant after it had propounded a similar question
requested by the State. He contends that the compound
question propounded by the court impermissibly asked
the prospective jurors to decide for themselves whether
or not their previous experiences affected their
impartiality, and should have been replaced with his
requested non-compound question.
Prior to trial, defense counsel filed a written request
for voir dire. Question number 17 asked:
17. Is there any member of the prospective jury
panel or any member of your immediate family
or a close personal friend who have been:
a. The victim of any crime;
b. A victim of shootings or crimes involving
firearms;
c. A witness to any crime; or
d. Charged with or arrested for any crime?
App. 62
If the answer to any part of this question is yes,
please stand and approach the bench one by one,
so that the Court can question you individually
at the bench.
During voir dire the trial court asked the venire
panel: “Is there any member of the prospective jury
panel or member of your immediate family who has
ever had a prior experience as a party, as a witness, as
a victim, or participant in any criminal proceeding? If
so, would that experience in any way, impair your
ability to sit as an impartial juror in this case?” Two
prospective jurors responded. One explained that his or
her daughter had witnessed a drug crime and shooting
and was treated by defense counsel at the perpetrators’
trials in a manner that caused the daughter to have
nightmares. That experience, the juror continued,
would not permit him or her to be impartial during
Howling’s trial. The second prospective juror explained
that he or she had been “caught with paraphernalia” in
2006. In response to the court’s follow-up question
whether that experience would affect his or her ability
to be fair and impartial in this matter, the prospective
juror answered, “No.”
After asking several other questions, the trial court
summoned the parties to the bench, and the following
colloquy occurred:
App. 63
THE COURT: Question number [17],[11] I think
is redundant. We’ve already asked a question
about whether or not they’ve been a witness or
juror or party or involved in any criminal
proceedings. But I think the part of the question
that says has any member of your family or
personal friend been a -- well, we’ve asked them
that question. I don’t think we need to -- do you
think?
[DEFENSE COUNSEL]: I’m fine with it but can
we amend it or ask for clarification on the
shooting aspect, Your Honor.
THE COURT: Well, they were asked have you
been a party.
[DEFENSE COUNSEL]: Right.
THE COURT: A witness.
[DEFENSE COUNSEL]: Right.
THE COURT: And this question says the same
thing.
[DEFENSE COUNSEL]: Right. I think the
question that you asked was the State’s version
and this one is the defendant’s version. My
concern would be the way that Your Honor
asked it. You also asked if they would be fair
11
The court referred to question number 24, but it appears from
the context of the discussion that the court meant to reference
question number 17. The State does not suggest otherwise in its
brief.
App. 64
and impartial and information about whether or
not they’ve been the victim or witness.
THE COURT: You lost me.
[DEFENSE COUNSEL]: So I think the previous
question was a two-part question and one, which
it was asked if they’ve been, and sort of
immediately asked if that would affect their
ability to be fair and impartial as opposed to
clarifying whether or not they had been a victim
or witness.
THE COURT: Right. But a number of people
came forward and said that they had been a
victim of a crime. The question was asked had
you the opportunity-[DEFENSE COUNSEL]: I think there was issue
[sic] whether they’re going to be fair and
impartial.
THE COURT: Right. Been charged or arrested,
they had the opportunity to answer that. And
one person in fact did come forward.
[DEFENSE COUNSEL]: That’s true.
THE COURT: Okay. So you can note your
objection for the record if you wish but I don’t
think I’m going to ask that question. Do you
object?
[DEFENSE COUNSEL]: Yes.
THE COURT: Okay.
App. 65
“Voir dire, the process by which prospective jurors
are examined to determine whether cause for
disqualification exists, is the mechanism whereby the
right to a fair and impartial jury, guaranteed by Art. 21
of the Maryland Declaration of Rights, is given
substance.” Dingle v. State, 361 Md. 1, 9 (2000)
(footnote omitted) (internal citations omitted). “To that
end, ‘[o]n request, a trial court must ask a voir dire
question if and only if the voir dire question is
reasonably likely to reveal specific cause for
disqualification.’” Collins v. State, 463 Md. 372, 376
(2019) (alteration in original) (quoting Pearson v. State,
437 Md. 350, 357 (2014)). “There are two categories of
specific cause for disqualification: (1) a statute
disqualifies a prospective juror; or (2) a collateral
matter is reasonably liable to have undue influence
over a prospective juror.” Id. (quoting Pearson, 437 Md.
at 357). This Court “review[s] the trial judge’s rulings
on the record of the voir dire process as a whole for an
abuse of discretion, that is, questioning that is not
reasonably sufficient to test the jury for bias, partiality,
or prejudice.” Washington v. State, 425 Md. 306, 314
(2012) (citing White v. State, 374 Md. 232, 243 (2003)).
The Court of Appeals addressed the propriety of
compound voir dire questions in Dingle. There, during
jury selection, the defendant requested that the trial
court ask a series of questions regarding whether
prospective jurors “had certain experiences or
associations” (e.g., whether they had been victims of,
witnesses to, accused of, or convicted of crimes, were
involved with law or law enforcement, or were
members of any victims’ rights groups). 361 Md. at 3 &
n.3. The court agreed to do so, but joined with each of
App. 66
the defendant’s requested inquiries an additional
question asking “whether the experience or
association . . . would affect the prospective juror’s
ability to be fair and impartial.” Id. at 3-4. The court
instructed each prospective juror to stand only “if your
answer is yes to both parts of the question.” Id. at 5.
The Court of Appeals reversed Dingle’s convictions,
holding that the trial court had abused its discretion in
posing the questions in compound form. Id. at 21. The
Court observed that it is the trial court, not the
prospective jurors, that “must decide whether, and
when, cause for disqualification exists for any
particular venire person.” Id. at 14-15. By asking
prospective jurors to divulge certain experiences or
associations only if they first concluded that they could
not be fair and impartial as a result, the trial court had
failed to exercise its “responsibility to decide . . .
whether any of the venire persons occupying the
questioned status or having the questioned experiences
should be discharged for cause,” and “denied [the
defendant] the opportunity to discover and challenge
venire persons who might be biased.” Id. at 17.
In Pearson v. State, the Court addressed the use of
compound questions in connection with mandatory
“strong feelings” voir dire questions, holding that when
a requested voir dire question is mandatory, the use of
“Dingle-type” compound questions constitutes
reversible error. 437 Md. at 363-64.
The Court of Appeals also held, however, that the
trial court is not obligated to ask if a member of the
venire has been the victim of a crime. Id. at 359.
Pearson had argued that the trial court abused its
App. 67
discretion by declining to ask that question, because it
was “reasonably likely to reveal specific cause for
disqualification” or to “facilitate the exercise of
peremptory challenges.” Id. at 356.
The Court disagreed, holding that the trial court
“need not ask during voir dire whether any prospective
juror has ever been the victim of a crime” for three
reasons. Id. at 359-60. First, the experience of a crime
victim “lacks ‘a demonstrably strong correlation [with]
a mental state that gives rise to [specific] cause for
disqualification.’” Id. at 359 (alterations in original)
(quoting Curtin v. State, 393 Md. 593, 607 (2006)).
Second, the question may be too time consuming, as
many, if not most, prospective jurors have been victims
of some type of crime. Id. at 359-60. Third, the court is
already required to ask, if requested, whether any juror
has “‘strong feelings about’ the crime with which the
defendant is charged,” and that question is better
tailored to reveal bias. Id. (citing State v. Shim, 418
Md. 37, 54 (2011), abrogated on other grounds by
Pearson, 437 Md. 350)).
In Collins, the Court reaffirmed that when a voir
dire question is mandatory, “it is improper for a trial
court to ask the . . . question in compound form.” 463
Md. at 396. In so holding, the Court rejected an
argument by the State that other questions asked by
the trial court were an adequate “substitute for a
properly-phrased ‘strong feelings’ question.” Id. at 398.
Against this backdrop, we hold that the trial court
in this case did not abuse its discretion in asking
prospective jurors if they “ha[d] ever had a prior
experience as a party, as a witness, as a victim, or
App. 68
participant in any criminal proceeding,” and, if so,
whether that experience would “in any way, impair
[their] ability to sit as an impartial juror in this case.”
Although the Court of Appeals has cautioned trial
courts to refrain from using compound questions when
conducting voir dire, doing so does not automatically
constitute reversible error. See Collins v. State, 452 Md.
614, 625 n.5 (2017) (citing White, 374 Md. at 243).
The trial court was not required to ask the party,
witness, or victim of crime question. See Pearson, 437
Md. at 359; Perry v. State 344 Md. 204, 218 (1996) (“A
juror’s having had prior experience as a juror, witness,
victim or defendant in a criminal proceeding of any
kind, or in one involving a crime of violence, is not per
se disqualifying.”). And, any likelihood that the
question would have uncovered a potential for bias is
mitigated by the fact that Howling was charged only
with possessory crimes that did not involve a victim.
The Pearson Court’s observation that the experience of
a crime victim “lacks ‘a demonstrably strong correlation
[with] a mental state that gives rise to [specific] cause
for disqualification,’” 437 Md. at 359 (alterations in
original), has particular relevance in this case where
there is no identified crime victim. Pearson’s second
reason why a court need not ask a “victim of crime”
question also applies here in that the party, witness or
victim of crime question may have been too time
consuming, as many, if not most, prospective jurors
likely had been victims or witnesses of some crime.
Moreover, the trial court did ask questions designed to
ensure that the prospective jurors would: apply the
appropriate legal standards of burden of proof,
presumption of innocence, and right of the defendant
App. 69
not to testify; decide the case based solely on the
evidence; not rely on preconceived notions of Howling’s
guilt or innocence; not exhibit bias toward either the
prosecution or the defense; and adhere to the jury
instructions.
Although the court should have avoided the
compound question, we cannot say that its use denied
Howling a reasonable, fair, and comprehensive voir
dire process. Considering all of the above factors,
including the fact that the court was not even required
to propound appellant’s voir dire question number 17,
we conclude that any error in asking the question in
compound form was harmless.
Howling also argues that the trial court committed
plain error in asking several other compound questions
during voir dire. Acknowledging that he offered no
objection to those questions during trial, he nonetheless
contends that “the pervasiveness and egregiousness of
the compound questions asked by the trial court
demand plain-error review” because the questions
“curbed the ability of the judge and parties to gauge
juror bias.”
Objections made during jury selection are governed
by Maryland Rule 4-323(c), which states, in pertinent
part, that “it is sufficient that a party, at the time the
ruling or order is made or sought, makes known to the
court the action that the party desires the court to take
or the objection to the action of the court.” Because
Howling failed to object to the various voir dire
questions about which he now complains, and accepted
the jury as empaneled subject only to his prior
objection, he waived his objection to the contested
App. 70
questions, and it is not properly before us on appeal.
See Md. Rule 8-131(a); see also Wimbish v. State, 201
Md. App. 239, 265-66 (2011). We note that Howling was
permitted to participate fully in the voir dire process,
strike jurors for cause, and exercise peremptory
strikes. In our view, the public’s confidence in the
fairness of judicial proceedings was not undermined by
the outcome of this case, and plain error review is not
warranted.
JUDGMENTS OF THE CIRCUIT
C O U R T F O R M O N T G O ME R Y
COUNTY AFFIRMED. APPELLANT
TO PAY COSTS.
App. 71
APPENDIX C
IN THE COURT OF APPEALS
OF MARYLAND
COA-REG-0035-2021
No. 35
September Term, 2021
[Filed June 15, 2022]
__________________________
MASHOUR HOWLING
)
)
v.
)
)
STATE OF MARYLAND
)
__________________________ )
ORDER
Upon consideration of Petitioner’s Motion for
Reconsideration filed in the above-captioned case, it is
this 15th day of June, 2022,
ORDERED, by the Court of Appeals of Maryland,
that the Motion for Reconsideration be, and it is
hereby, DENIED.
/s/ Matthew J. Fader
Chief Judge
*Judge Gould did not participate in the consideration
of this matter.
App. 72
IN THE COURT OF APPEALS
OF MARYLAND
COA-REG-0035-2021
No. 35
September Term, 2021
[Filed August 11, 2022]
__________________________
MASHOUR HOWLING
)
)
v.
)
)
STATE OF MARYLAND
)
__________________________ )
CORRECTED
ORDER
Upon consideration of Petitioner’s Motion for
Reconsideration filed in the above-captioned case, it is
this 15th day of June, 2022,
ORDERED, by the Court of Appeals of Maryland,
that the Motion for Reconsideration be, and it is
hereby, DENIED.
/s/ Shirley M. Watts
Senior Judge
*Chief Judge Fader and Judge Gould did not
participate in the consideration of this matter.
App. 73
APPENDIX D
SENTENCE in the Court of Common Please of
Butler County, Pennsylvania
See Fold-Out Exhibit
IN THE COURT OF COMMON PLEAS OF BUTLER COUNTY, PENNSYLVANIA
CO:MMON�EALTH OF PENNSYLVANIA
CRIMINAL DIVISION
C.A. NO. 02-1180
VS.
OTN No. H643232-2
MASHHOUR EUGENE HOWLING
SENTENCE
AND NOW, this 18th day of December. 2002, the Sentence of lhe Court is:
Defendant is directed ta pay the costs or prosecution.
Pay fine of $ 1 oo_oo
(X) SIMPLE ASSAULT - M2
Count 1 Offanse
(.) Defendant is to receive credii for time served. as a'lailable by law.
{X) Defendant is to be plac.ad on probation for a period of 18 MONTHS with the County
Probation Board and must attend any counseling as directed by probation officer.
(X) Special condiUon{s} of sentence (if any):
( } Cosls/Fines/Restitution are due immediately/on or before __.
( ) The Defendant is to pay the costs, fines and restitution until paid in full.
( ) Costs/Fines/Restitution - $__ is due at sentencing and
$___
. is due each month until paid in full.
(X} Probation supervision fee ,._,,does not apply.
p.}J;/o:z-
(X) Defendant shall perform 20. hQura of community service under the direction of the
/Y)C.C.
Adult Proballon Office, within 6 months
L)q,
w --,,,,-.a.6
(X) This sentence shall run consecutive. tq any other sentences issued prior to this date.
Oe. p
7-o-as:
vU°'Je�
G, /le di a11
Ol=F Ptya+?n1
,6 .,.r/e,,-..
of sen1encing.
(X) Fines, cbsts, restitution and community service shall be consecutive.
_l}_Y THE COURT:
YrJ)
Butler County
Stale of Pennsytvq
Certified to be a true end
copy
of
MY COM!.2SSION E;tPoKE,S � JIO.�
-162
App. 74
APPENDIX E
MD Code, Public Safety, § 5-133
§ 5-133. Restrictions on possession of
regulated firearms
Effective: October 1, 2018
Preemption by State
(a) This section supersedes any restriction that a local
jurisdiction in the State imposes on the possession by
a private party of a regulated firearm, and the State
preempts the right of any local jurisdiction to regulate
the possession of a regulated firearm.
Possession of regulated firearm prohibited
(b) Subject to § 5-133.3 of this subtitle, a person may
not possess a regulated firearm if the person:
(1) has been convicted of a disqualifying crime;
(2) has been convicted of a violation classified as a
common law crime and received a term of
imprisonment of more than 2 years;
(3) is a fugitive from justice;
(4) is a habitual drunkard;
(5) is addicted to a controlled dangerous substance
or is a habitual user;
App. 75
(6) suffers from a mental disorder as defined in
§ 10-101(i)(2) of the Health--General Article and has
a history of violent behavior against the person or
another;
(7) has been found incompetent to stand trial under
§ 3-106 of the Criminal Procedure Article;
(8) has been found not criminally responsible under
§ 3-110 of the Criminal Procedure Article;
(9) has been voluntarily admitted for more than 30
consecutive days to a facility as defined in § 10-101
of the Health--General Article;
(10) has been involuntarily committed to a facility
as defined in § 10-101 of the Health--General
Article;
(11) is under the protection of a guardian appointed
by a court under § 13-201(c) or § 13-705 of the
Estates and Trusts Article, except for cases in
which the appointment of a guardian is solely a
result of a physical disability;
(12) except as provided in subsection (e) of this
section, is a respondent against whom:
(i) a current non ex parte civil protective order
has been entered under § 4-506 of the Family
Law Article; or
(ii) an order for protection, as defined in § 4508.1 of the Family Law Article, has been issued
by a court of another state or a Native American
tribe and is in effect; or
App. 76
(13) if under the age of 30 years at the time of
possession, has been adjudicated delinquent by a
juvenile court for an act that would be a
disqualifying crime if committed by an adult.
Penalty for possession by convicted felon
(c)(1) A person may not possess a regulated firearm if
the person was previously convicted of:
(i) a crime of violence;
(ii) a violation of § 5-602, § 5-603, § 5-604, § 5605, § 5-612, § 5-613, § 5-614, § 5-621, or § 5-622
of the Criminal Law Article; or
(iii) an offense under the laws of another state or
the United States that would constitute one of
the crimes listed in item (i) or (ii) of this
paragraph if committed in this State.
(2)(i) Subject to paragraph (3) of this subsection, a
person who violates this subsection is guilty of a
felony and on conviction is subject to imprisonment
for not less than 5 years and not exceeding 15 years.
(ii) The court may not suspend any part of the
mandatory minimum sentence of 5 years.
(iii) Except as otherwise provided in § 4-305 of
the Correctional Services Article, the person is
not eligible for parole during the mandatory
minimum sentence.
(3) At the time of the commission of the offense, if a
period of more than 5 years has elapsed since the
person completed serving the sentence for the most
App. 77
recent conviction under paragraph (1)(i) or (ii) of
this subsection, including all imprisonment,
mandatory supervision, probation, and parole:
(i) the imposition of the mandatory minimum
sentence is within the discretion of the court;
and
(ii) the mandatory minimum sentence may not
be imposed unless the State’s Attorney notifies
the person in writing at least 30 days before
trial of the State’s intention to seek the
mandatory minimum sentence.
(4) Each violation of this subsection is a separate
crime.
(5) A person convicted under this subsection is not
prohibited from participating in a drug treatment
program under § 8-507 of the Health--General
Article because of the length of the sentence.
Possession by person under age of 21 years
prohibited; exceptions
(d)(1) Except as provided in paragraph (2) of this
subsection, a person who is under the age of 21 years
may not possess a regulated firearm.
(2) Unless a person is otherwise prohibited from
possessing a regulated firearm, this subsection does
not apply to:
(i) the temporary transfer or possession of a
regulated firearm if the person is:
App. 78
1. under the supervision of another who is at
least 21 years old and who is not prohibited
by State or federal law from possessing a
firearm; and
2. acting with the permission of the parent or
legal guardian of the transferee or person in
possession;
(ii) the transfer by inheritance of title, and not of
possession, of a regulated firearm;
(iii) a member of the armed forces of the United
States or the National Guard while performing
official duties;
(iv) the temporary transfer or possession of a
regulated firearm if the person is:
1. participating in marksmanship training of
a recognized organization; and
2. under the supervision of a qualified
instructor;
(v) a person who is required to possess a
regulated firearm for employment and who holds
a permit under Subtitle 3 of this title; or
(vi) the possession of a firearm for self-defense or
the defense of others against a trespasser into
the residence of the person in possession or into
a residence in which the person in possession is
an invited guest.
App. 79
Transport of regulated firearms
(e) This section does not apply to a respondent
transporting a regulated firearm if the respondent is
carrying a civil protective order requiring the surrender
of the regulated firearm and:
(1) the regulated firearm is unloaded;
(2) the respondent has notified the law enforcement
unit, barracks, or station that the regulated firearm
is being transported in accordance with the civil
protective order; and
(3) the respondent transports the regulated firearm
directly to the law enforcement unit, barracks, or
station.
Surrendering of regulated firearms to State or
local law enforcement agency or federally
licensed firearms dealer
(f) This section does not apply to the carrying or
transporting of a regulated firearm by a person who is
carrying a court order requiring the surrender of the
regulated firearm, if:
(1) the firearm is unloaded;
(2) the person has notified a law enforcement unit,
barracks, or station that the firearm is being
transported in accordance with the order; and
(3) the person transports the firearm directly to a
State or local law enforcement agency or a federally
licensed firearms dealer.
App. 80
APPENDIX F
IN THE COURT OF APPEALS OF MARYLAND
No. 35
September Term, 2021
__________________________
MASHOUR HOWLING
)
v.
)
STATE OF MARYLAND
)
__________________________ )
PETITION FOR WRIT OF CERTIORARI
(Supplement)
QUESTIONS PRESENTED
1. Whether in a Question of First Impression, the
lower Courts erred by giving a jury instruction,
contrary to the holding of Rehaif v. United States,
139 S.Ct. 2191 (2019) on the presumptions in law
discussed in the equivalent Federal statute, Rule of
Lenity, and this Court’s analogous decisions of
Dawkins v. State, 313 Md. 638 (1988) and Chow v.
State, 391 Md. 431 (2006), and thus require in a
conviction beyond a reasonable doubt, a jury first
find a culpable mens rea that Petitioner knew he
was unqualified to possess a regulated firearm or
ammunition.
App. 81
2. In the facts presented, with state comity concerns of
a Pennsylvania resident briefly visiting in
Maryland, and no evidence adduced Petitioner was
previously notified by the State and Federal
government authorities he was prohibited from
possessing a regulated firearm in Maryland based
on a 17-year-old Pennsylvania simple assault
conviction, did the lower Courts err in giving the
pre-Rehaif pattern jury instructions lacking critical
scienter requirements?
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.