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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,
-12-
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
-13-
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
-15-
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
-16-
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.
-17-
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.
-18-
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.
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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.
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