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PostPosted: Sun Nov 28, 2004 6:17 pm 
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Thanks to Terry Paul for sending me this new information on Josh Ford's murder. Perhaps Al will be able to translate some of the "legaleze" for us. GEM
====================

Benjamin Sifrit v. State of Maryland

No. 142, September Term, 2003

DUE PROCESS — INCONSISTENT THEORIES OF PROSECUTION — For a due process violation to exist the inconsistency must exists at the core of the State’s case. Discrepancies based on rational inferences from ambiguous evidence will not support a due process violation provided the multiple theories are supported by consistent underlying facts.

EVIDENCE — CHARACTER EVIDENCE — OTHER CRIMES, WRONGS, OR ACTS — The trial court is required to conduct a three-part test before admission of "other crimes, wrongs, or act" evidence may be admitted; (1) does the evidence fit within one or more of the states exception to Md. Rule 5-

404(b); (2) has the defendant’s involvement in the other "crime, wrong or act" been established by clear

and convincing evidence; (3) does the probative value of the evidence out weigh the prejudicial effect of

its admission.

EVIDENCE — CHARACTER EVIDENCE — OTHER CRIMES, WRONG, OR ACTS — Evidence is

deemed an "act" within the meaning of Md. Rule 5-404(b) if the evidence relates to an activity or

conduct, not necessarily criminal, that tends to impugn or reflect adversely upon one’s character, taking

into consideration the facts of the underlying lawsuit.

SENTENCING — MERGER — REQUIRED EVIDENCE TEST — Where multiple offenses arise

from the same act or acts and all of the elements of one offense are included in another offense, except

that the later offense contains a distinct element(s), the former merges into the later. This process is

known as the required evidence test and when satisfied, the offenses merge as a matter of course.

SENTENCING — MERGER — RULE OF LENITY — When the required evidence test is not satisfied

but multiple offenses are based on the same act or acts, the principle of statutory construction known as

the rule of lenity may still require merger. The rule of lenity applies when the Court finds that the

legislature did not intend, under the circumstances involved in the particular case, for a person to be

convicted of two particular offenses growing out of the same act or transaction.

In the Circu it Court for M ontgomery County

Criminal No. 96895

IN THE COURT OF APPEALS OF MARYLAND

No. 142

September Term, 2003

______________________________________

BENJAMIN ADAM SIFRIT

v.

STATE OF MARYLAND

____________________________________

Bell, C.J.

Raker

Wilner

Cathell

Harrell

Battaglia

Greene,

JJ.

______________________________________

Opinion by Greene, J.

______________________________________

Filed: August 27, 2004

1 The indictment indicates that Count Nine is accessory after the fact. The verdict sheet,

however, refers to accessory after the fact as Count Seven. The correct count number for the

charge of accessory after the fact is Count Nine.

2 The same jury, acquitted Benjamin of the murder of Joshua Ford and related offenses.

3 Due to extensive pretrial publicity, Benjamin’s case was removed from the Circuit Court

for Worcester County and transferred to the Circuit Court for Montgomery County.

A jury in the Circuit Court for Montgomery County, on April 9, 2003, convicted

Benjamin Sifrit ("Benjamin"), of three crimes in connection with the death of Martha

Crutchley. The crimes are: Count One, murder in the second degree, Count Three,

assault in the first degree, and Count Nine,1 accessory afte r the fact.2 Benjamin’s

convictions and this appeal arise out of events that occurred over the Memorial Day

weekend 2002 in Ocean City, Maryland, resulting in the death of two people, Martha

Crutchley and Joshua Ford.3

In a related case, a separate jury in the Circuit Court for Frederick County, on June

10, 2003, convicted Erika Sifrit ("Erika"), Benjamin’s wife, for her complicity in the

murders of Ms. Crutchley and Mr. Ford. We granted Erika’s petition for writ of

certiorari. Sifrit v. State, 380 Md. 230 (2003). Subsequently, while Benjamin’s appeal

was pending in the Court of Spe cial Appeals, we gra nted his petition for writ of certiorari

before consideration o f his claims by the interme diate ap pellate c ourt. Sifrit v. State, 381

Md. 324 (2004). Even though many of the facts, issues, and legal arguments in these two

cases overlap we answer the issues and contentions of the parties in separate opinions of

this Court.

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Benjamin raises the fo llowing issu es:

1. Whether the State violated [Benjamin’s] fundamental right to due process

by presenting factually inconsistent theories at [Benjamin’s] trial and that of

his wife, Erika, both of whom were charged with committing the same

crimes.

2. Whether the trial court [erred] in admitting the testimony of Michael

McInnis regarding a conversation that [Benjamin] had with McInnis three

years bef ore the m urders a s prior bad acts e vidence.

3. Whether the trial court erred in refusing to allow the defense to present

evidence regarding Erika’s ability to commit the crimes alone.

4. Whether the trial court erred in imposing separate sentences for second

degree murder and first degree a ssault.

We shall affirm Be njamin Sif rit’s conviction s. A due p rocess viola tion does n ot

exist in a situation involving multiple trials based upon a single criminal transaction,

unless the prosecution presents inconsistent theories and the inconsistency exists at the

core, not the margins, of the State’s case. It is not enough for a due process violation that

there are discrepancies because of rational inferences drawn from ambiguous evidence,

provided that the multiple theories are supported by consistent underlying facts. In the

present case, the State’s theory that Benjamin and Erika committed the criminal offenses

together as a team remained con sistent throug hout both trials. Any incon sistency in

inferences or emphasis placed on particular facts by the State were consistent with the

State’s u nderlying theory of the case and did not violate Benjamin’s right to due pro cess.

In addition, we discern no reversible error in the trial court’s rulings with regard to the

admissibility of the testimony of Michael McInnis and the exclusion of the testimony of

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Elizabeth Sifrit. Finally, we shall vacate the sentence imposed for Count Three, first

degree assault, treating it, for sentencing purposes, as merging with the conviction for

second degree murder, Count One.

I.

On Friday, May 24, 2002, Martha Crutchley and her boyfriend, Joshua Ford, drove

from Virginia to Ocean City, Maryland, for the Memorial Day weekend. Erika and her

husband Benjamin were also vacationing in Ocean City over the holiday weekend. On

Saturday night, May 25, 2002, the Sifrits met Ms. Crutchley and Mr. Ford on a bus on

their way to Seacrets, a popular Ocean City nightclub. The Sifrits did not have the exact

change for the fare so Ms. Crutchley and Mr. Ford offered to pay the Sifrits’ fare if they

would buy them a drink when they arrived at Seacrets. The foursome and two other

people from the bus, friends Anne Carlino and Jeff Hysee, spent the rest of the evening

togethe r at Seac rets.

What happened in the early morn ing hours following the night at S eacrets is

unknown. We do know, however, that at 3:00 a.m. on Sunday, May 26, 2002, Erika

called 911 claiming that people she did not know were in her condominium unit and she

could not f ind her pu rse. She w as "afraid I’m going to have a robb ery here." The call

abruptly ended and no one was dispatched to the condominium.

On Tuesday, May 28, 2002, one of Ms. Crutchley’s co-workers notified the Fairfax

City police that Martha Crutchley failed to show up at work following the Memorial Day

4 Investigators later found other items in the Jeep including but not limited to a knife,

gloves, and undeveloped film.

-5-

weekend. Fairfax City police contacted the O cean City police who found Ms. C rutchley’s

car outside the condominium where she and Mr. Ford were staying for the weekend. The

police found the couple’s belongings left in their condominium as if they had just stepped

out. Concerned about Ms. Crutchley and Mr. Ford, the police began to search actively for

them.

On May 31, 2002, around midnight, the Ocean City Police Department responded

to an alarm call from the closed-for-the-night Hooters Restaurant and Bar merchandise

store on 122nd Street in Ocean City. There they found Erika and Benjamin loading

Hooters merchandise into the ir Jeep C heroke e. The couple w ere plac ed in handcuffs.

Upon searching the couple, the police found a 9 millimeter handgun and a knife on

Benjamin and a fully-loaded .357 magnum revolver tucked into Erika’s blue jeans in the

small of her back. Another knife was found on Erika. Discovered in the Sifrits’ car were

a .45 calibre gun, ski masks, flex cuffs, and tape.4 The two were arrested and charged

with burg lary.

At the scene of the burglary, Erika told the officers that she had anxiety problems

and that she needed her Xanax and Paxil from a brown leather pouch in her purse located

in the front of the Jeep. One of the police officers, Sgt. Beene, looked in Erika’s purse for

the pills. He found only one type of pill inside the brown leather pouch. Sgt. Beene

continued to look for the other type of pill inside a red pouch because he noticed medicine

5 There was also a silver ring with a dragon engraving found in Erika’s purse that was

later identified as belonging to Mr. Ford. DNA testing revealed blood from both Joshua Ford

and Martha Crutchley on the ring. Ms. Crutchley was a major contributor to the DNA sample

found on the ring and Mr. Ford was a minor contributor, according to a forensic chemist for the

State of Maryland.

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bottles in that pouch. When the officer did not find the second type of pill in the red

pouch he looked in a zippered pouch in the back of the purse. There he discovered four

spent .357 magnum shell casings and one live round. The sergeant continued to look for

the second type of pill in a gray change purse, also inside Erika’s purse, and found the

identification cards of M r. Ford and Ms. Crutchley.5 Fearing for the safety of Ms.

Crutchley and Mr. Ford, the police ordered an immediate search of the Sifrits’

condominium.

Upon entering the Sifrits’ condominium, the police observed photographs and two

bullets on a glass table. The pictures were of the Sifrits, Ms. Crutchley, and Mr. Ford,

taken before the murders. Both of the bullets on the table had been fired from the .357

magnum recovered from Erika at Hooters, and one of the bullets had Mr. Ford’s blood

and tissue on it. Police also found a key to Ms. Crutchley and Mr. Ford’s condominium

on another table. Crime scene technicians found bloodstains in the Sifrits’ master

bathroom on the top of the counter, the underside of the counter top, the floor, the floor

under the vanity, the back side of the bottom drawer of the vanity, under the mirror, under

the baseboard, under the hot tub faucet, on the hot tub step, on a sailboat candle holder on

the hot tub, on the window, and in the shower. Swabs were taken from these bloodstains,

-7-

which were a ll later identified as match ing the DNA of either M s. Crutchley or M r. Ford.

There was also a hole in the back wall of the bathroom, fresh paint on the wall, and

numerous cleaning supplies on the floor next to the bathroom door. The cleaning

supplies, it was later discovered, had been purchased on Sunday, May 26, 2002, the day

after Martha Crutchley and Joshua Ford were murdered.

The police ultimately found the dismembered bodies of Martha Crutchley and

Joshua Ford in a Delaware landfill. The only part of Ms. Crutchley that was recovered

was her left leg, consequently, her cause of death was never determined. Police

recovered the torso and both arms of Mr. Ford. Two bullets fired from the .357 magnum

recovered from Erika at Hooters on the night of the burglary were found in M r. Ford’s

torso.

The State’s theory in both cases was that after leaving Seacrets that night, the two

couples had returned to the Sifrits’ condominium. Onc e in the condominium, the Sifrits

engaged in a "missing purse game" in which they claim ed Erik a’s purse was m issing.

They demanded the other couple find the purse and when it couldn’t be found, somehow

got them into the upstairs bathroom where both Sifrits shot Mr. Ford and in some other

manner killed Ms. Crutchley. The team then cut up the victims’ bodies and disposed of

them in trash dumpsters.

The State’s theory is based, in part, on the testimony of Melissa Seling ("Melissa")

who met the Sif rits the nig ht of M ay 29 through her friend, Justin Todd Wright ("T odd").

-8-

Melissa testified that when she caught up to T odd that night, he and the Sifrits were

intoxicated and she was the only one who was sober. Melissa joined the Sifrits and Todd

at a couple of bars, but she did not drink. At the end of the evening, Melissa was worried

about Benjamin’s ab ility to drive so she a greed to fo llow the Sifrits back to th eir

condominium. When the four of them arrived at the condominium, Melissa, at

Benjamin’s urging, helped Erika up to the condominium because she seemed so

intoxicated th at she mig ht fall over without help. O nce a t the d oor, Erika located her keys

in her purse and opened the door with no problem. Erika began showing Melissa around

the condominium. Within 5-10 minutes of having the purse at the door, Erika and

Benjamin claimed that someone had taken Erika’s purse and that Melissa had to look for

it.

At some point during the search for the purse, Benjamin brandished a gun and

became more adamant about them finding the purse. Benjamin made a number of

statements d uring the search regard ing people who had been the re before w ho had tried to

rip them off and that he was "doing the world a justice by ridding the earth of bad

people." Melissa testified that he also told her "if we ripped them off . . . he would kill us

the same way he killed those other people." In her statement to police and on re-crossexamination

in Benjamin’s trial, Melissa acknowledged that she was not clear in her

recollection of whether Benjamin had said "just like I killed the other people" or "just

like we killed the othe r people" (emphasis added). M elissa testified tha t she felt

-9-

threatened by the gun and asked that it be put away. During the search, Melissa noticed a

bullet hole in the bathroom door, wh ich had been removed from its hinges. Ultimately,

Benjamin discovered the purs e in a location that had pre viously been s earched. B enjamin

also sat down with Melissa to show her his gun and what he called Erika’s gun, the .357

magnum used to kill Jo shua Ford.

At his trial, Benjamin took the stand in his own defense. He denied any

involvement in the actual killing of the two victims. Benjamin testified that he left

Seacrets with his wife, Martha Crutchley, and Joshua Ford and got on a bus. When the

bus stopped at the condominium where Ms. Crutchley and Mr. Ford were staying, Erika

got off the bus with them while Benjamin returned to their condominium alone. Once

there, however, Benjamin realized he did not have a key to the unit, so he went and

"passed out" in the couple’s jeep. At some time later, Benjamin claims his wife woke

him up in the car asking "why weren’t you there for me?" The two then returned to the

condominium where he found Joshua Ford and Martha Crutchley dead on the bathroom

floor. Benjamin admitted that it was his idea to dismember the bodies and that Erika

helped him. He testified that he cut off both Ms. Crutchley’s and Mr. Ford’s heads, arms,

and legs about an hour after they were killed. He then placed their body parts in trash

bags, which Erika purchased for that purpose that morning while Benjamin dismembered

the bodies, and then dumped their remains in a dumpster at a Food Lion in Rehoboth,

Delaware, at aro und 8 a .m. or 9 a .m. on Sunday, M ay 26, 2002.

6 In a separate trial, Erika was convicted of the first degree murder of Mr. Ford, second

degree murder of Ms. Crutchley, and theft charges related to the burglary at Hooters. She was

sentenced to life imprisonment for the first degree murder of Joshua Ford, 20 years to run

consecutive for the second degree murder of Martha Crutchley, and 18 months to run concurrent

for the theft charges.

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Benjamin was sentenced to thirty years imprisonment fo r second degree m urder,

25 years to run concurrent for first degree assault, and 5 years to run consecutive for

accessory afte r the fact.6

Additional facts will be provided throughout this opinion as necessary to our

analysis.

II.

Inconsistent Theories of Prosecution

Benjamin presents the same facts and argument as Erika Sifrit with regard to the

issue of inc onsistent theo ries of prose cution. For th e reasons sta ted in our op inion filed in

the case of Erik a Sifrit, w e find n o merit to Benjamin's co ntention s. See Erika Sifrit v.

State, __ Md. __ , __ A.2d __.

III.

Admission/Exclusion of Evidence

Benjamin’s second and third assignments of error relate to the admission and

exclusion of certain testimon y; specifically, the admission of Michael M cInnis’s

testimony regarding the conversation about disposing of a dead body and the exclusion of

testimony by Benjamin’s mother that Erika once pulled a gun o n her.

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It is well establish ed in this State that the adm ission of ev idence is committed to

the con siderab le discre tion of th e trial cou rt. Merzbacher v. State, 346 Md. 391, 404, 697

A.2d 432, 439 (19 97) (internal c itations omitted ). Relevan t testimony is gen erally

admissible and irrelevant testimony is not admissible. Id. (citing M d. Rule 5-402).

Evidence is relevant if it has a tendency to establish or refute a fact that is at issue in the

case. Merzbacher, 364 Md. at 404 (citing Md. Rule 5-401). "We are generally loath to

reverse a trial court unless the evidence is plainly inadmissible under a specific rule or

principle of law or there is a clear showing of an abuse of discretion." Merzbacher, 346

Md. at 404-405, 697 A.2d at 439 (citing White v. State, 324 Md. 626, 637, 598 A.2d 187,

192 (1991)). In Dorsey v . State, 276 Md. 638, 643, 350 A.2d 665, 668-669 (1976), we

discussed the test for admissibility of evidence in a criminal trial. We said:

The real tes t of admiss ibility of evidenc e in a crimina l case is

the connection of the fact proved with the offense charged, as

evidence which has a natural tendency to establish the fact at

issue . . . . [E]vide nce, to be ad missible, mu st be relevan t to

the issue s and m ust tend either to establish or disprove the m.

Evidence which is thus not probative of the proposition at

which it is dire cted is deem ed irrelevan t.

(Interna l quotations and citation s omitted.)

Admission of Michael McInnis’s Testimony

The trial court admitted the testimony of Michael McInnis ("McInnis") regarding a

conversation he had with Benjamin in 1999. The Court admitted the testimony pursuant

to Md. Rule 5-404(b), governing the admission of evidence related to other crimes,

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wrongs, or acts. Benjamin challenges the admission of this testimony. We affirm the

trial judge’s decision to admit the evidence pertaining to Benjamin’s statement, but for

different reasons.

McInnis is a former Navy SEAL and friend of Benjamin. He was called by the

State at Ben jamin’s trial to recount a co nversation that he had with Ben jamin. McInnis

testified that in 1999 the two men were at a strip club having drinks when the discussion

turned to how Benjamin would dispose of a body if h e ever killed someone. Accordin g to

McInnis, Benjamin stated that he would do it by laying down plastic in a living room or

an open space and then remo ve the arm s, legs and h ead with a knife. Then he would

remove the body in separate bags and dispose of the body in either the same dumpster

over the cours e of a m onth or in diffe rent dumpsters throug hout the city in a sin gle trip.

On cross-examination, McInnis stated that the conversation was a typical conversation

between SEALs, that they were "simply talking trash with guys over a few beers" and that

the conve rsation wa s not to be tak en seriously. O utside the pre sence of th e jury, McInn is

testified that the conversation had, in fact, arisen when McInnis stated to Benjamin, "I

should send you to go whack my wife." To which, Benjamin responded, "[y]eah sure."

The conversation then turned to the discussion of how it could be done without getting

caught. That is w hen the discussion abo ut quartering an d dispo sing of the bod ies arose .

Later, McInnis aske d what the going rate w as, and Be njamin resp onded "$ 20,000 to

$40,00 0, $30,0 00."

7 Following McInnis’s testimony, the court gave the following instruction to the jury:

You have heard evidence just now that the Defendant had a

conversation with Mr. McInnis, discussing with Mr. McInnis how

to dispose of a body if someone had been murdered. You may

consider this evidence only – you may consider this evidence only

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On April 1, 2003, counsel for Benjamin made an oral motion to exclude the

testimony of M cInnis. The defense a rgued that th e conversation did no t amount to

another crime, wrong, or act. The conversation was just "a drunken discussion three

years ago." The State countered that the act of offering to kill someone’s wife for money

constitutes solicitation to commit murder, which is a crime. The Court took a brief recess

and then made an initial ruling that the testimony qualified under M d. Rule 5-404(b);

however, bef ore a fin al determ ination c ould be made on whether to a dmit the testimony, a

hearing w as ne cessary ou tside the presence o f the jury.

Following the hearin g, the trial court h eld that the testim ony was admissible

pursuant to Rule 5-40 4(b), based on its interpreta tion that the co nversation amounted to

an offer or solicitation to commit murder. The trial court, relying on the case of

Ridgeway v. State, 140 M d. App. 49, 67, 7 79 A.2d 1031 , 1041 (2000), aff’d, 369 Md.

165, 797 A.2d 1287 (2002), conducted the required three-part analysis regarding the

admissibility of "other crimes" testimony and concluded that it was admissible. The

testimony was admitted, without any reference to the statement about "whacking"

McInnis’s wife . Additionally, the court gave a cautiona ry instruction to the jury

regarding the prop er use of the testimony.7

as to the question of identity and a plan but not as to guilt or

innocence.

The Court then repeated the warning regarding the proper use of the evidence.

-14-

Benjamin contend s that the trial cou rt erred in adm itting this testimon y because it

"simply did not qualify as relevant evidence, as it neither ‘tended to make the proposition

asserted more or less probable,’ nor was [it] ‘related logically to the matter in issue in the

case.’" He further argues that the testimony does not fall within any of the stated

exceptions embodied in Rule 5-404(b) and relied upon by the trial court. On appeal, the

State contends that the conversation did not amount to "prior bad acts" evidence because

the version actually admitted at trial, the version without reference to "whacking"

McInnis’s wife, did n ot fall w ithin the exceptions fo r the adm ission of chara cter evid ence.

We agree with the S tate that evide nce of the conversation between McInnis and B enjamin

did not constitute "other crimes" or "prior bad acts evidence." Further, we agree that the

evidence was relevant and admissible.

For testimony to be adm issible it must be relevant. M d. Rule 5-4 02. Evide nce is

relevant if it ha s "any tenden cy to make the existence of any fact tha t is of consequence to

the determination of the action more probable than it would be without the evidence."

Md. Rule 5-401. Benjamin’s declaration is admissible as circumstantial evidence tending

to prove that he later com mitted the murder. See Kirkland v. State, 75 Md. App. 49, 54,

540 A.2d 490 , 492 , cert. denied, 313 Md. 506, 54 A.2d 1344 (1988) (Affirming that "the

Hillmon doctrine provides that when the performance of a particular act by an individual

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is an issu e in the c ase, his in tention (state of mind) to perform that act may be shown . . . .

The Hillmon doctrine allows the trial court to admit [a defendant’s] statement as

circumstantial evidence that [the defendant] carried out his intention and performed the

act.") Id. at 56, 540 A.2d at 493 (citing Mutual Life Insurance Co. v. Hillmon, 145 U.S.

285, 12 S.Ct. 909, 36 L.Ed. 706 (1892) (Holding that when the performance of a

particular act by an individual is an issue in the case, his intention to perform that act may

be offere d as circum stantial eviden ce that the ind ividual later ac ted in accordance with his

intention.)). Applying this standard to the evidence in question, we find the testimony of

McInnis relevant. The evidence did more than suggest to the jury that Benjamin was

either a bad person or had a propensity to commit violent crimes. Even though

Benjamin’s trial counsel conceded during his opening statemen t that Benjam in

dismembered and disposed of the bodies of Martha Crutchley and Joshua Ford, the

evidence of the earlier conversation between McInnis and Benjamin tended to show that

Benjamin’s participation in the homicide was not necessarily limited to the disposal of the

bodies. Whether the three-year-old conversation was a joke or a serious statement and

whether Benjamin participated in the killing as a principal o r only as an acc essory to

homicide, were questions left to the jury for resolution.

The trial judge, howe ver, based his decision to ad mit the evidence of B enjamin’s

prior statements on Md. Rule 5-404(b). That rule provides:

Evidence of other c rimes, wro ngs, or acts is n ot admissib le to

prove the c haracter of a person in order to sho w action in

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conformity therewith. It may, however, be admissible for

other purp oses, such a s proof of motive, op portunity, intent,

preparation, common scheme or plan, knowledge, identity, or

absence o f mistake o r accident.

Md. Rule 5-404(b) is designed to prevent the jury from becoming confused by the

evidence, from developing a predisposition of the defendant’s guilt, or from prejudicing

their minds a gainst the de fendant. State v. Faulkner, 314 Md. 630, 633, 552 A.2d 896,

897 (1989) (internal citatio n omitted). E vidence o f other crim es is admissib le "if it is

substantially relevant to some contested issue in the case and if it is not offered to prove

the defendant’s guilt based on propensity to commit crime or his character as a criminal."

Faulkner, 314 Md. at 634, 552 A.2d at 897-98.

Before other crimes evidence is admitted, a three-part determination must be made

by the trial court. The first required determination is whether the evidence fits within one

or more of the stated ex ception s to Rule 5-404(b). Faulkner, 314 Md. at 634, 552 A.2d at

898. This is a leg al determ ination that doe s not inv olve an y exercise of discretion. Id.

The second req uirement is that the trial court determine w hether the defenda nt’s

involvement in the other act h as been establish ed by clea r and co nvincin g evide nce. Id.

We review the trial court’s decision to determine if there is suff icient evidence to suppo rt

it’s findin g. Faulkner, 314 Md. at 635, 552 A.2d at 898. Lastly, the trial court must

weigh the probative v alue of the evidence against any un due prejud ice that may resu lt

from its admission. Id. This determination involves the exercise of discretion by the trial

court. Id.

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As previously discussed, the trial court concluded, based on the testimony offered

at the hearing on the motion in limine that the offer to "whack" McInnis’s wife amounted

to "other crimes" evidence. Consequently the court conducted the three part test we

recognized in Faulkner. The State and Benjamin agree that the trial court erred in

applying the Faulkner analysis.

In Klauenberg v. State, 355 Md. 528 , 549, 735 A.2d 1 061, 1072 (199 9) this Court

first addressed the issue of what constitutes a wrong or an act under Rule 5-404(b). We

began by noting that "[a]n act prohibited by the criminal code but which goes uncharged

is perhaps easy to identify as a bad act, hence the term ‘uncharged misconduct.’" Id. at

547, 735 A.2d at 1071. We then noted that some acts do not have a negative connotation

until placed in c ontext. Id. We have held that mere possession of a knife and walking

behind a women are not crimes, but under certain circumstances, "‘these acts could be

construed as misconduct.’" Id. (quoting Whittlesey v. State, 340 Md. 30, 58, 665 A.2d

223, 237 (1995)). W e have also held that a crim inal defendant’s plan to leave the S tate to

evade prosec ution co uld con stitute a b ad act. Klauenberg, 355 Md. at 547, 735 A.2d at

1070 (citing Whittlesey, 340 Md. at 63, 665 A.2d at 239). And we have held that even

though so licitation of a p rostitute for sex is a crime, testim ony that the defendant " got a

girl and had sex" did n ot amount to a crime o r bad act absent an indica tion that the girl

was a p rostitute o r an unw illing partner. Klauenberg, 355 Md. at 548, 735 A.2d at 1070

(citing Burch v. S tate, 346 M d. 253, 270-71, 696 A .2d 443 , 452, cert. denied, 522 U.S.

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1001, 1 18 S.Ct. 571, 13 9 L.Ed.2d 410 (1997)).

Based on our review of Maryland case law and that of a number of other

jurisdictions w e conclud ed that:

In reviewing the holdings from other jurisdictions and

examples of what those courts construed as bad acts, the

general theme running through each is that a bad act is an

activity or condu ct, not necessarily criminal, that ten ds to

impugn or reflect adversely upon one’s cha racter, taking in to

consideration the facts of the underlying lawsuit. It is from

this general proposition that we evaluate whether the evidence

to which appellant protests as erroneously admitted were bad

acts under Maryland Rule 5-404(b).

Klauenberg, 355 Md. at 547, 735 A.2d at 1071. In Klauenberg, we held that evidence

that Klauenberg w as involved in an un derlying estate case with his sister, stood near a

location where a gun was stored in a ceiling tile while the house was being searched by

police, verbally confronted and poked the opposing attorney in the civil lawsuit, and was

found with two guns and ammunition on his person, did not constitute bad acts. We

reasoned that none of these actions, as they were presented to the jury, "impugn

someone’s character." Therefore, they were not "bad acts" within the meaning of 5-

404(b). Id. at 550, 735 A.2d at 1072-73.

The testimony in question here was that two men, McIn nis and Benjamin, w ere in

a strip club one night discussing how Benjamin would dispose of a dead body if he ever

killed someone. Although the conversation may appear to be unusual, the conversation

neither amounts to a crime nor impugns Benjamin’s character to the extent that Rule 5-

-19-

404(b) is implicated. We hold that the trial court was only required to determine whether

the testimon y was relevan t and whether its proba tive value w as outweighed by its

prejudicial effect. By engaging in the three-step analysis approved in Faulkner, the trial

judge a fforded Benjamin greater protection than w as nece ssary.

Furthermore, Benjamin’s argument that he was harmed by admission of the

testimony of McInnis is tenuous considering his trial counsel’s concession in his opening

statement. In the present case, trial counsel conceded that Benjamin dismembered the

bodies and disposed of them in dumpsters. This admission was not solely relevant to the

crime of accessory after the fact. Benjamin’s prior conversation was relevant circumstantial evidence of his intent or plan as well as evidence of the identity of the perpetrator. The jury could reason ably infer from the details contained in Benjamin’s comments, the specific manner in which he likely wou ld conceal a murder, a nd that, coupled with other substantial (and indeed conceded) evidence of his involvement in the dismembering and disposition of the bodies, he was also involved in the killing. Moreover, the jury could reasonably conclude from Benjamin’s conversation with McInnis that Benjamin either planned or contrived a scheme to murder the victim in this case. Under the circum stances, the jury could reasonably infer that Benjamin’s participation in the murder was not impulsive and that the murder was the result of a conscious design to kill. In addition, because Benjamin admitted his involvement as an accessory after the fact, the jury was not precluded from reasonably inferring from the evidence that his role was more extensive than he indicated. The jury was free to believe some, all, or none of the evidence presented in this case. Therefore, the testimony of McInnis was relevant without offering it to show either Benjamin’s propensity to commit crime or that Benjamin is a bad person. Thus, we affirm the trial court’s decision to admit the evidence of Benjamin’s prior statements about dismembering and disposing of bodies. Although we reject the trial judge’s conclusion that the evidence amounted to "other crimes" evidence, we discern no reversible error as a result of that decision.

Exclusion of Elizabeth Sifrit’s Testimony

Benjamin also challen ges the trial co urt’s decision to prevent Elizabeth Sifrit, Benjamin’s mother, from testifying regard ing an incident that allegedly occurred with Erika in North Carolina. The defense proffered that Elizabeth would testify that Erika became hysterical following a military hearing involving Benjamin, "pulled a gun" on Elizabeth, locked herself in the bathroom, and that Elizabeth called 911. Counsel for Benjamin argued to the trial court that the testimony was being offered to show "simply that there’s another incident of [Erika] Sifrit pulling a gun on another human being." The Court ruled that the testimony was "not relevant."

Benjamin now argues that the testimony was relevant to show that Erika "was capable of pulling a weapon on another individual outside of [Benjamin’s] presence" and had the tendency to show that she was capable of committing the present crimes alone.

This argument, however, was not presented to the trial court and is not preserved for our 8 The trial court imposed a thirty-year sentence for Benjamin’s conviction for the second degree murder of Martha Crutchley and a concurrent twenty-five-year sentence for his conviction for first degree assault of Ms. Crutchley.

-21-

review . See Brecker v . State, 304 Md. 36, 39-40, 497 A.2d 479, 480 (1985) ("[O]ur cases have consistently stated that when an objector sets forth the specific grounds for his objection . . . the objector will be bound by those grounds and will ordinarily be deemed to have waived other grounds not specified.").

Arguably, the theory now advanced by Benjamin is simply a more detailed version of the one advanced at trial. To accept this argument, however, we would have to require trial courts to imagine all reasonable offshoots of the argument actually presented to them before making a ruling on admissibility. We decline to place such a substantial burden on the trial court. Based on the argument presented during trial to support the admission of Elizabeth Sifrit’s testimony, we conclude that the trial court did not err in excluding the testimony. Whether Erika once pulled a gun on someone does not have a tendency to show that she was the sole perpetrator of these heinous crimes.

IV.

Merger

The last issue presented for our review is whether the trial court erred in imposing separate sentences for Benjamin’s convictions for second degree murder and first degree assault.8 The State agrees that m erger is requ ired in this case . We agre e as well an d shall vacate the sentence for Count Three, first degree assault, and merge, for sentencing 9 This test is also referred to as the "same evidence test" and the "Blockburger test."

-22- purposes, Count Three into the conviction for Cou nt One, second degree murder.

"Under the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution , the State can neither hold multiple trials no r punish a defendant multiple times for the same offense." Hollbrook v. State, 364 Md. 354, 369, 772 A.2d 1240, 1248 (2001) (internal citations omitted). "Of fenses merge an d separate sentences are prohibited when, for instance, a defendant is convicted of two offenses based on the same act or acts and one offense is a lesser-included offense of the other." Khalifa v. Maryland, Md. __, __ A.2d __ (2004). The norm al test for determining if an offense merges into another is the "required evidence test." State v. Jenkins, 307 Md. 501, 518, 515 A.2d 465, 473 (1986).9 It is the "threshold" test and, if it is satisfied, merger follow s as a matter of c ourse. Khalifa , Md. at __, __ A.2d at __. The test looks to the elements of the offenses and "if all of the elements of one offense are included in the other offense, so that only the latter offense contains a distinct element or distinct elements, the former merges into the latter." Jenkins, 307 M d. at 518 , 515 A .2d at 47 3.

Merger may also be appropriate even when two offenses do not satisfy the required evidence test. "[E]ven though offenses may be separate and distinct under the required evidence test, courts occasionally find as a matter of statutory interpretation that the legislature did not intend, under the circumstances involved, that a person could be convicted of two particular offenses growing out of the same act or transaction." Id. at

-23-518, 51 5 A.2d at 473 (internal citation omitted).

The crime of murder in Maryland remains a common law offense . Mitchell v. State, 363 Md. 130, 146 , 767 A.2d 844, 853 (2001). B y statute, it has been divided into two degrees. Id. Here, the trial court, in instructing the jury, said:

In order to convict the defendant of second degree murder, the State must prove that the conduct of the defendant caused the death of Martha Crutchley and Joshua Ford; that the defendant engaged in the deadly conduct either with the intent to kill or with the intent to inflict such serious bodily harm that death w ould be the likely result.

At the time of the murders, first degree assault was punishable under Md. Code

(1957, 1996 Repl. Vol.), Art. 27 § 12A-1 , which provides:

(1) A person may not intentionally cause or attempt to cause serious physical in jury to another.

(2) A person may not commit an assault with a firearm.

"Serious physical injury" includes "physical injury which creates a substantial risk of death." Id. at § 12(c)(1). Here, the trial court instructed the jury on both modalities of proving assault.

Applying the required evidence test to § 12A-1(1), we conclude that, for sentencing purposes, assault in the first degree merges with the crime of second degree murder. The two crimes have the same elements with the one additional element for murder, the death of the victim. The result is not the same when applying the required evidence test to § 12A-1(2), as it requires the use of a firearm which is not required for second degree murder. We note, howe ver, that the jury found Benjamin not guilty of both counts of use of a handgun in a crime o f violence or commission of a f elony, so it is unlikely th at they relied on § 12A-1(2) in finding Benjamin guilty of first deg ree assault.

Nevertheless, we co nclude that, based on the rule of len ity, even if the jury bas edits conviction for first degree assault on the second modality, the co nviction w ould still merge. Based o n the facts of the case w e do not believe that the legislature intend ed for a person to be convicted of these two offenses which arose from the same act. We therefore hold that Benjamin’s conviction for first degree assault should have been merged into his conviction for second degree murder for sentencing purposes.

SENTENCE FOR COUNT THREE VACATED. JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY OTHERWISE AFFIRMED.

PETITIONER TO PAY COSTS.

_________________
GEM
"Do or do not. there is no try!"


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