By Robert C. Bonsib, Esq. & Megan E. Coleman, Esq.
In Lawrence v. State, 257 A.3rd 588 (2021), the Court of Appeals (COA) was called upon to answer the following question: Is wearing, carrying, or transporting a handgun on or about one’s person a strict liability crime?
On August 10, 2021, COA answered that question in the affirmative, in spite of COA’s and the Supreme Court’s disfavor of omitting mens rea as an element of criminal statutes.
Historically, at common law, a crime occurred only upon the concurrence of the individual’s act and his guilty state of mind. See, e.g., Morissette v. United States, 342 U.S. 246, 251-252 (1951). “There can be no crime, large or small, without an evil mind. In other words, punishment is the sequence of wickedness…. It is, therefore, a principle of our legal system … that the essence of the offense is the wrongful intent, without which it cannot exist.” 1 Bishop’s Crim. Law, § 287 (9th ed. 1923).
So noted COA in Dawkins v. State, 313 Md. 638, 643–47 (1988) when it held that “knowledge” of the presence of a drug that one was accused of possessing was an essential element required to prove the charge of possession and that the accused, in order to be found guilty, must know of both the presence and the general character or illicit nature of the substance.
Similarly, in State v. McCallum, 321 Md. 451, 454–55 (1991), COA held that mens rea is required for the offense of driving while suspended.
Neither the statute discussed in Dawkins nor that discussed in McCallum contained “knowingly” language as an element of the offense. Despite this, COA determined that “far more than the simple omission of the appropriate phrase from the statutory definition is necessary to justify dispensing with an intent requirement.” McCallum (citing United States v. United States Gypsum Co., 438 U.S. 422, 438 (1978)).
In Dawkins and McCallum, COA also rejected the arguments that scienter was not a required element because the offenses were regulatory in nature. At the time that Dawkins was decided, possession of a controlled substance carried a potential sentence of up to four years imprisonment. At the time that McCallum was decided, driving while suspended carried a potential sentence of up to one year of imprisonment.
In Dawkins, COA stated that:
[T]he prohibition against possessing a controlled dangerous substance, such as heroin, cocaine, etc., is regarded as a most serious offense, particularly in light of the association between illegal drugs and other crime. The penalty for the possession offenses reflects the seriousness of the crime. An individual may be sentenced for up to four years in prison or receive a $25,000 fine. The purpose of imposing a penalty upon possession of narcotics is to punish and deter immoral behavior having serious consequences, rather than merely to regulate conduct.
In McCallum, COA also address the argument that the offense was “regulatory in nature”:
While we recognized that many motor vehicle laws are regulatory, the instant offense is both regulatory and punitive…The maximum penalty for driving while suspended is significant. It carries a period of incarceration not to exceed one year, and a second offender can receive double the period of incarceration. Both the nature of the penalty and the inclusion of an enhanced penalty for repeat offenders give some indication that the Legislature did not intend this to be a “public welfare” offense.
As we begin our discussion of Lawrence v. State, it should be noted that Crim. Law (“CR”) § 4-203(a)(1)(i), which prohibits “wearing, carrying or transporting a handgun, whether concealed or open, on or about the person,” carries a potential of up to three years of imprisonment and/or a fine of $2,500.
Lawrence was charged with possession of a regulated firearm by a disqualified person; possession of ammunition by a disqualified person; wearing, carrying, or transporting a handgun on or about the person; possession of cocaine; driving under the influence of alcohol; and driving while impaired by a controlled dangerous substance. Lawrence testified at his trial and denied knowing about the handgun found in the vehicle he was driving.
The jury acquitted Lawrence of possession of a regulated firearm by a disqualified person and possession of ammunition by a disqualified person and convicted him of the remaining counts. Lawrence was acquitted of the handgun and ammunition offenses that required scienter. He was convicted of wearing, carrying and transporting a handgun after the trial court refused to give a jury instruction that the State was required to prove that the handgun had been “knowingly possessed.”
In affirming Lawrence’s conviction COA held that:
[T]he trial court did not err in propounding the State’s requested jury instruction stating that although this Court and the Supreme Court disfavor omitting mens rea as an element of criminal statutes, the doctrine of stare decisis compels us to interpret the statutory elements of Md. Code (2002, 2021 Repl. Vol.), Crim. Law (“CR”) § 4-203(a)(1)(i) as omitting mens rea, based on the plain text of the statute, our previous holding in Lee [Lee v. State, 311 Md. 642 (1988)], and the General Assembly’s acquiescence to that decision, we hold that “knowledge” is not an element of the crime charged.
Lawrence was charged under the section of the statute that prohibits the “wearing, carrying or transporting a handgun on or about the person” and not another section of the statute that prohibits the “knowing transporting of a handgun in a vehicle.” The second part of the statute does require scienter to prove that one knowingly transported a handgun in a vehicle. It was the “wearing, carrying and transporting on or about the person” that COA held does not require proof of knowing possession.
The Lawrence opinion relied exclusively on the Lee case decided 33 years earlier. In Lee v. State, 311 Md. 642 (1988), COA was confronted with the question “[d]oes the Maryland statute prohibiting the carrying of a handgun require knowledge of the presence of the handgun and, if so, was the evidence sufficient to convict [Lee and Hall] of this charge?”
In Lee, Lee and Hall were convicted of attempted second degree murder, robbery with a deadly weapon, use of a firearm and carrying and wearing a handgun. In addition to the handgun being recovered in a gym bag that had been possessed by both Lee and Hall, evidence showed that the same handgun was used 17 hours earlier by Hall in the robbery.
After holding that the evidence was sufficient in that case to prove actual knowledge, the Lee opinion continued to hold that while the evidence was sufficient to prove actual knowledge, “knowledge” is not an element of the offense and that “wearing, carrying and transporting a handgun on or about the person” is a strict liability offense. The entirety of the analysis by COA of this issue in Lee is as follows:
Moreover, the governing statute, Md. Code (1957, 1982 Repl.Vol.), Art. 27, § 36B(b) provides:
Any person who shall wear, carry or transport any handgun, whether concealed or open, upon or about his person, and any person who shall wear, carry or knowingly transport any handgun, whether concealed or open, in any vehicle traveling upon the public roads … shall be guilty of a misdemeanor; and it shall be a rebuttable presumption that the person is knowingly transporting the handgun….
Hall contends that this statute requires knowledge to convict for either wearing or carrying a handgun.
The plain language of § 36B(b) creates strict liability for the wearing or carrying of a handgun about one’s person. The scienter requirement applies only to vehicular transportation of a handgun and was inserted “so that a person who shows that he was not aware that his vehicle was transporting a handgun will not incur penalties.” Shell v. State, 307 Md. 46, 69, 512 A.2d 358, 369 (1986). This interpretation is strengthened by the fact that the legislative bill by which § 36B(b) was proposed provided for strict liability without any knowledge requirement as to wearing, carrying and transporting. The “knowledge” requirement for transporting was inserted by amendment. See Acts of 1972, ch. 13. The addition of a scienter requirement specifically for vehicular transport underscores the corresponding omission of that requirement for wearing and carrying handguns.
Thirty-three years later, in Lawrence v. State, for fourteen pages, COA explains why the doctrine of stare decisis required it to affirm Lawrence’s conviction based upon this limited analysis in Lee, and held that “wearing, carrying and transporting a handgun on or about the person” does not require proof that the person had actual knowledge that the person was “possessing, carrying or transporting handgun on or about the person.”
COA held that CR § 4-203(a)(1)(i) sets forth a strict liability offense. In explaining its decision, the Court stated:
Thirty-three years ago, in interpreting the predecessor statute to CR § 4-203(a)(1)(i), this Court’s Lee decision affixed strict liability to the crime of wearing, carrying, or transporting a handgun on or about the person. Our interpretation of the text, statutory structure, and legislative history of CR § 4-203(a)(1)(i) confirms such an interpretation, even in light of the Supreme Court’s presumption in favor of including mens rea as an element of criminal statutes. Moreover, in declining to amend the language of the offense in the thirty-three years since Lee was decided, it is apparent that the General Assembly has acquiesced to our holding in that case. The General Assembly has “wide latitude” to set forth strict liability offenses as long as they are constitutional. Where CR § 4-203(a)(1)(i) neither violates the Due Process Clause of the United States Constitution nor requires us to consider whether the General Assembly intended to set forth a “public welfare offense,” we see no need to depart from the doctrine of stare decisis.
We have found no such indicia demonstrating that the General Assembly intended to include mens rea as an element of CR § 4-203(a)(1)(i). In contrast to the relationship between CR § 4-203(a)(1)(i) and (ii), the statutory structure in Dawkins supported the assertion that the General Assembly intended to include mens rea as an element of Article 27, § 287(a) and (d). The statute at issue in McCallum is similarly distinguishable on the ground that it was entirely silent as to mens rea and provided no indication that the General Assembly intended to omit mens rea as an element.
The Lawrence opinion relies heavily on two factors. First, that the General Assembly included the requirement that to be convicted of transporting a handgun in a vehicle that such transporting be done “knowingly.” Second, that in the thirty-three years since Lee was decided the General Assembly has taken no action to modify the statute to including the “knowing” language as a required element of “wearing, carrying or transporting” a handgun.
One might posit – did the General Assembly not take action because it did not seem likely that one could wear, carry or transport a handgun on or about one’s person without knowing that one had it in one’s possession. It is hard to imagine that where the conduct is so similar and the penalty the same that the General Assembly intended to require proof of one’s knowledge when transporting a handgun in a vehicle but intended one to be strictly liable – even in the absence of knowledge – for “wearing, carrying or transporting a handgun on or about the person.” Is there any logical explanation for why the General Assembly would take steps to prevent one who was without knowledge of the presence of a handgun in a vehicle from being convicted of transporting a handgun in a vehicle but would hold strictly liable one who was wearing, carrying or transporting handgun on or about the person? What about the person who is carrying the backpack of another person that – unknown to that person – has a handgun in the backpack? Or did it intend to let the State decide – on the same facts – to either charge the strict liability offense of “wearing, carrying or transporting a handgun on or about the person” or charge transporting a handgun in a vehicle and impose on it the requirement of proving scienter?
Lawrence was arrested when the arresting officer found Lawrence behind the driver’s wheel, unconscious, and later discovered on the floorboard at Lawrence’s feet, the handgun. The handgun was not found “on” his person, but clearly “about” his person. Lawrence could also have been charged with transporting the handgun in the vehicle – but he was not. Did the State choose to charge as it did anticipating that it could proceed on a strict liability theory rather than having to prove “knowledge” if it charging transporting a handgun in a vehicle? If the General Assembly included the “knowing” element in the transporting a handgun in a vehicle to avoid one being convicted of transporting of handgun who was not aware that his vehicle was transporting a handgun, why is that not clear evidence of the intention of the General Assembly to require that a possessor have knowledge of what he or she is accused of possessing?
Lee did not focus on the issue of what happens when the State’s evidence does not establish “actual” vs. “constructive” possession. In Lawrence, the evidence arguably could have been sufficient to show constructive possession of one who was transporting a handgun in a vehicle. The conviction was based, however, on a charge of “wearing, carrying or transporting a handgun on the person” and, because the evidence was that the handgun was found – not on Lawrence’s person – but rather at his feet – it had to be based upon a constructive possession theory.
Smith v. State, 415 Md. 174, 187 (2010), in discussing the concept of constructive possession in a drug case, reminds us that:It has long been established that the mere fact that the contraband is not found on the defendant’s person does not necessarily preclude an inference by the trier of fact that the defendant had possession of the contraband. (Internal citation omitted).
Inherent in the element of exercising dominion and control is the requirement that the defendant knew that the substance was a CDS. Knowledge is a required element because “an individual ordinarily would not be deemed to exercise ‘dominion or control’ over an object about which he is unaware.” (Internal citation omitted). “[K]nowledge may be proven by circumstantial evidence and by inferences drawn therefrom.” (Internal citation omitted). Thus, we must determine whether there was sufficient evidence from which a reasonable fact-finder could conclude that Smith exercised dominion or control over the marijuana and had knowledge of the presence of the marijuana.
If the State choses to proceed on the “strict liability” offense, but the possession is based only proof of constructive possession – is the accused entitled to a jury instruction on possession – which includes the requirement that the prosecution prove that the accused had dominion or control over an item? Case law makes clear that one cannot exercise such dominion or control over an item the presence of which is unknown. Does Lawrence limit the State’s ability to proceed on “strict liability” to those fact patterns where the possession is actual and not constructive?
Lawrence seems to recognize the potential for injustice in applying its strict liability ruling when, in the concluding portion of the opinion, COA observes:
However, we do think that this Court’s, and the Court of Special Appeals’, broad application of the term “on or about” leaves some questions about the notice afforded to defendants alleged of wearing, carrying, or transporting a handgun “about” their person. While we do not see fit to invalidate CR § 4-203(a)(1)(i) on constitutional grounds, the correct course of action in instances such as these is to signal to the General Assembly that, “in light of these policy concerns, … legislation ought to be considered” to address the scope CR § 4-203(a)(1)(i) given its classification as a strict liability offense. In re S.K., 466 Md. at 57–58, 215 A.3d 300.
Application of the Lawrence holding presents the very real potential for injustice. An uncritical application of the “strict liability” ruling could easily result in the creation of a category of “criminals” who, without a guilty mind, are convicted of the possession of a handgun, the presence of which was unknown to the person. When combined with the discretionary authority of a prosecutor to charge under the “strict liability” section of the statute, even when the facts would also support the charging of the “knowingly transport in a vehicle” section of the statute, the State can effectively gut the intention of the General Assembly to prohibit one from being convicted of unknowingly transporting a handgun in a vehicle.
Perhaps the saving grace is that most “wearing, carrying or transporting on or about a person” cases will be where the person is in actual possession of the handgun. Constructive possession-based cases, however, are limited only by the sense of justice and good judgement of a prosecutor.
While Lawrence may be controlling as to whether knowledge is a required element of the offense, it may leave open the question, in constructive possession cases, whether knowledge can be required where the State has to prove dominion or control over an item and, thus, must also prove that the accused had knowledge of the item over which dominion or control has to be exercised.
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