Petition for Writ of Certiorari — Mashour Howling, Petitioner v. Maryland

Supreme Court briefOct 13, 2022

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APPENDIX

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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.

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