Sean Urbanski v. State of Maryland

, No. 1318, September Term 202 0

.

CONSTITUTIONAL LAW > FREEDOM OF SPEECH, EXPRESSION, AND

PRESS

The First Amendment affords protection to symbolic or expressive conduct as well as to

actual speech. U.S. Const. Amend. 1.

CONSTITUTIONAL LAW > FREEDOM OF SPEECH, EXPRESSION, AND

PRESS

ABSOLUTE NATURE OF RIGHT

The right to freedom of speech is not absolute at all times and under all circumstances.

U.S. Const. Amend. 1.

CIVIL RIGHTS > OFFENSES AND PENALTIES

CONSTITUTIONAL AND STATUORY PROVISIONS

CONSTITUTIONAL LAW > FREEDOM OF SPEECH, EXPRESSION, AND

PRESS

LAW ENFORCEMENT; CRIMINAL CONDUCT

BIAS OR HATE CRIMES

First Amendment does not protect bias

- motivated speech, coupled with non

- verbal

proscribed conduct. U.S. Const. Amend. 1; Md. Code Ann., Crim. Law § 10

- 304.

CIVIL RIGHTS > OFFENSES AND PENALTIES

CONSTITUTIONAL AND STATUORY PROVISIONS

CONSTITUTIONAL LAW > FREEDOM OF S PEECH, EXPRESSION, AND

PRESS

LAW ENFORCEMENT; CRIMINAL CONDUCT

BIAS OR HATE CRIMES

First Amendment does not protect violent acts. U.S. Const. Amend. 1; Md. Code Ann.,

Crim. Law § 10

- 304.

CONSTITUTIONAL LAW > FREEDOM OF SPEECH, EXPRE SSION, AND

PRESS

FIRST AMENDMENT IN GENERAL

PARTICULAR ISSUES AND APPLICATIONSFirst Amendment does not erect per se barrier to admission of evidence concerning

defendant ’ s beliefs and associations at sentencing, simply because those beliefs and

associations are protected by First Amendment. U.S. Const. Amend. 1.

CONSTITUTIONAL LAW > FREEDOM OF SPEECH, EXPRESSION, AND

PRESS

JUDICIAL PROCEEDINGS

CRIMINAL PROCEEDINGS

ADMISSIBILITY OF EVIDENCE

CRIMINAL LAW > EVIDENCE

FACTS IN ISSUE RELEVANCE

MOTIVE OR ABSENCE OF MOTIVE

First Amendment does not prohibit evidentiary use of speech to establish ele ments of

crime or to prove motive or intent. U.S. Const. Amend. 1.

CONSTITUTIONAL LAW > FREEDOM OF SPEECH, EXPRESSION, AND

PRESS

JUDICIAL PROCEEDINGS

CRIMINAL PROCEEDINGS

ADMISSIBILITY OF EVIDENCE

CRIMINAL LAW > EVIDENCE

FACTS IN ISSUE RELEVANCE

MOTIVE OR ABSENCE OF MOTIVE

Violent speech can be admissible evidence to show motive or intent because the First

Amendment does not prohibit evidentiary use of speech to establish elements of crime or

to prove motive or in tent. U.S. Const. Amend. 1.

CRIMINAL LAW > REVIEW

DISCRETION OF LOWER COURT

RECEPTION AND ADMISSIBILTY OF EVIDENCE

Generally, an appellate court reviews a trial court ’ s admission of evidence for abuse of

discretion.

CRIMINAL LAW > EVIDENCE

FACTS IN ISSUE AND RELEVANCE

RELEVANCY IN GENERALEvidence is relevant or material when it has tendency to prove proposition at issue in

case.

CRIMINAL LAW > REVIEW

HARMLESS AND REVERSIBLE ERROR

ADMISSION OF EVIDENCE

Ap pellate court is 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.

CRIMINAL LAW > EVIDENCE

OTHER MISCONDUCT BY ACCUSE D

NATURE AND CIRCUMSTANCES OF OTHER

MISCONDUCT AFFECTING ADMISSIBILITY

TEMPORAL RELATION OF EVENTS

RELEVANCY IN GENERAL

Evidence of defendant ’ s prior conduct is admissible, even if not directly concurrent,

when acts are committed within such time, or show such relation to main charge, as to

make connection obvious.

CRIMINAL LAW > NATURE AND ELEMENTS OF CRIME

CRIMINAL INTENT AND MALICE

MOTIVE

CRIMINAL LAW > EVIDENCE

CRIMINAL INTENT AND MALICE

OTHER MISCONDUCT BY ACCUSED

OTHER MISCONDUCT SHOWING MOTIVE

Motive is mental state, proof of which necessarily requires inferences to be drawn from

conduct or extrinsic acts.

CRIMINAL LAW > EVIDENCE

FACTS IN ISSUE AND RELEVANCE

RELEVANCY IN GENERAL

EVIDENCE CALCULATED TO CREATE PREJUDICE

AGAINST OR SYMPATHY FOR ACCUSED

To be admissible, inflammatory or prejudicial nature of evidence must be outweighed by

its probative value.CR IMINAL LAW > EVIDENCE

FACTS IN ISSUE AND RELEVANCE

RELEVANCY IN GENERAL

EVIDENCE CALCULATED TO CREATE PREJUDICE

AGAINST OR SYMPATHY FOR ACCUSED

Responsibility for balancing prejudicial nature of evidence against its probative valu e is

entrusted to trial court.

CRIMINAL LAW > EVIDENCE

FACTS IN ISSUE AND RELEVANCE

RELEVANCY IN GENERAL

EVIDENCE CALCULATED TO CREATE PREJUDICE

AGAINST OR SYMPATHY FOR ACCUSED

Evidence tending to prove guilt is prejudicial to an accused, but the mere fact that such

evidence is powerful because it accurately depicts the gravity and atrociousness of the

crime or the callous nature of the defendant does not thereby render it inadmissible.Circuit Co urt for Prince George ’ s County

Case No. CT 171444 X

REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 1318

September Term, 20 2 0

______________________________________

SEAN URBANSKI

v.

STATE OF MARYLAND

______________________________________

B erger

, A rthur

, R eed

,

JJ.

______________________________________

Opinion by Reed

, J.

Concurring Opinion by Arthur , J.

______________________________________

Filed : December 7 , 20221

Sean Urbanski ( “ A ppellant ” ) stabbed and killed Second L ieutenant Richard Collins

,

III ( “ Lt. Collins ” ) at a bus stop on the University of Maryland ( “ UM ” ) campus on May 2 0

,

201 7

. Appellant was charged with first

- or second

- degree murder ( “ Count One ” ) and a hate

crime under Maryland Criminal Law § 10

- 304 ( “ Count Two ” )

. During trial, the State of

Maryland ( “ State ” ) introduced evidence of racially offensive memes 1 stored on the

Appellant ’ s cell phone and Appellant ’ s membership in a white supremacist Facebook

group named “ Alt

- Reich Nation ” 2 (hereinafter, “contested evidence”). During trial,

Nicholas Clamp i tt ( “ Clamp i tt ” ) , a friend, former high school classmate

, co

- worker of the

Appellant who is also a member of the Facebook group stated that the group was based on

the “ Third Reich ” of Nazi Germany. 3 Clamp i tt testified that t he racist memes that were

1 This Court was not able to locate if the term “ meme ” has been defined in a Maryland

case. However, other Courts have defined a meme: “ As the term is generally used in our

current information age culture, a ‘ meme ’ is typically an image or video, that enough

people find amusing or interesting, that it is spread widely through sites on the internet. ”

Fields v. Commonwealth , 73 Va. App. 652, 662 n.4 (2021). The United States Tenth Circuit

has defined a meme as “ pictures with text over them or pictures of text. ” United States v.

Alfred 982 F.3d 1373, 1276 (2020).

2 A crime analyst for the University of Maryland Police Department testified that the “ Alt

Reich Nation ” Facebook group page had been taken down approximately forty

- four hours

after it was discovered on Appellant ’ s phone.

3 Although the existence of the Alt

- Reich, a white supremacist organization, was deemed

“common

- knowledge” by the circuit court, the Alt

- Reich, as a group, has yet to be defined

by the Maryland Court. “ Altreich ” , in its origins, is a German word for “ Old Realm ” and

generally refers to Nazi Germany under Adolf Hitler. See generally P ETER W ITTE

, T WO

D ECISIONS CONCERNING THE F INAL S OLUTION TO THE J EWISH Q UESTION : D EPORTATIONS

TO L ODZ AND M ASS M URDER IN C HELMNO , 9 Holocaust & Genocide Stud. 318 (1995); cf.

Reich

, M ERRIAM

- W EBSTER O NLINE D ICTIONARY

, https://www.merriam

- webster.com/dic

tionary/Reich (last visited: Nov. 9 , 2022); Timeline of the Hol ocaust: 1933

- 1945

, M USEUM

OF T OLERANCE , https://www.museumoftolerance.com/assets/documents/timeline

- of

- the

holocaust.pdf (last visited: Nov. 9 , 2022). Adolf Hitler and Nazi supporters in Germany2

admitted into evidence were consistent with materials that were posted on the Alt

- Reich

Nation Facebook group

.

On December 17, 2019

, Appellant was acquitted by the Circuit Court of Prince

George ’ s County of Count Two charging the hate crime because, as the hate crime statute

was written, the crime must have been “ because of ” 4 the victim ’ s race and the court stated

the State had not met this high evidentiary burden

. However, the court believed that the

admitted evidence was relevant to Appellant ’ s motive in Count One charging Murder

. The

killed six million Jews, along with five million other victim s, during the Holocaust because

they believed that Germans were “ racially superior ” to Jewish people and that Jewish

people were an alien threat to the German racial community. The Holocaust , National

WWII Museum, The Holocaust , National WWII Museum, https://www.nationalww2muse

um.org/war/articles/holocaust (last visited: Nov. 9 , 2022); accord Frequently Asked

Questions about the Holocaust: What was the Holocaust? , United States Holocaust

Memorial Museum, https://www.ushmm.org/teach/fundamentals/holocaust

- questions (last

visited: Nov. 9 , 2022). The Alt

- R eich (also commonly referred to as “ Alt

- Right ” ) is a group

of individuals whose membership believes that “‘ white identity ’ is under attack by

multicultural forces . . . to undermine white people and ‘ their ’ civilization. Characterized

by heavy use of social media and memes, they eschew establishment conservatism and

promote the goal of a white ethnostate. ” The Alt

- Right On Campus

, S OUTHERN P OVERTY

L AW C ENTER (Aug. 10, 2017), https://www.splcenter.org/2017081 0/alt

- right

- campus

what

- students

- need

- know (last visited: Nov. 9 , 2022). The “ Alt

- Reich Nation ” Facebook

group was reportedly a social media group where members would post disparaging

material about Black, Latino, and Jewish people. What is the ‘ Alt

- Reich: Nation ’ Facebook

Group , USA Today (May 22, 2017, 12:15pm), https://www.usatoday.com/story/news/nat

ion

- now/2017/05/22/what

- alt

- reich

- nation

- facebook

- group

- fbi

- investigating

- possible

- hat

e

- crime

- university

- maryland/335961001/ (last visited: Nov. 9, 2022)

.

4 The statute was later amended by the Maryland General Assembly in 2020 to replace

“ because of

” with “ motivated either in whole or in substantial part by ” the protected

characteristics. Md. Code Ann., Crim. Law § 10

- 304 (West 2020).3

following day, the jury was instructed on the remaining first

- and second

- degree murder

charges

. On December 19, 2019, a jury found Appellant guilty of first

- degree murder and

A p p ellant was sentenced to life imprisonment with the possibility of parole

.

In bringing his appeal

, Appellant presents two question s for appellate review

,

rephrased for clarity : 5

I. Did the circuit court err in admitting the racially offensive evidence

in violation of the First Amendment ?

II. Did the circuit court err in denying Appellant ’ s motion for a mistrial?

For the following reasons, we answer both questions in the negative and affirm the

circuit court ’ s holdings.

F ACTUAL & P ROCEDURAL B ACKGROUND

On May 2 0

, 201 7

, Appellant stabbed and killed Lt. Collins

, a Bowie State

University student and Reserve Officer s ’ Training Corps candidate, at a bus stop on the

UM campus. During the stabbing, Blake Bender ( “ Bender ” ) and Amanda Lee ( “ Lee ” )

5 In his brief, App ellant presented the two following questions:

I. Whether the trial court erred in admitting racially offensive material

found on Appellant ’ s phone in violation of the First Amendment, the

Constitutional guarantee of due process and contrary to the Maryland

R ules of Evidence, absent any nexus between the racially offensive

material on the phone and the crime.

II. Whether the trial court erred in failing to declare a mistrial after

granting a judgment of acquittal on Count Two.4

(collectively, “ eyewitnesses ” ) 6 were at the bus stop with Lt. Collins

. Both Bender and Lee

testified t o witnessing Appellant murdering Lt. Collins.

Prior to the incident, Bender was out with Lt. Collins at the local bars near UM and

ended up at a bus stop where Lee was also waiting for the bus but, because of the late hour,

proceeded to call a taxi

- car rideshare

. At some point, Bender recalled hearing angry

screaming coming from “ in the woods, further up the walk ” from the bus stop

. Shortly after

hearing the screaming, Appellant approached the group at the bus stop and ordered each

person to “ step left

, if you know what ’ s best for you

, ” “ step left, step left if you know

what ’ s good for you

. ” Lt. Collins said “what?” asking Appellant what he was talking about

and Appellant repeated himself. Bender and Lee stepped out of Appellant ’ s way.

Appellant moved forward with the blade of the knife drawn in his hand. Appellant

approached Lt. Collins

. Bender testified that Lt. Collins was not threatening, nor did he act

aggressively in any manner to Appellant. Lt. Collins responded

, “ n o

, ” to Appellant ’ s

orders

. Appellant stabbed Lt. Collins in the chest.

The first officer on the scene

, Michael Thomas ( “ Ofc. Thomas ” )

, found Lt. Collins

lying on his back suffering from a stab wound to the chest and unresponsive to questioning

at approximately 3:04 a

. m. Ofc. Thomas identified individuals depicted on the surveillance

footage, including Appellant, Lt. Collins, and the two eyewitnesses. Ofc. Thomas noticed

6 Since race is considered as a factor to this case, it is notable that at the time of the incident,

Bender presented outwardly as a white male and Lee present ed outwardly as a n Asian

woman.5

Appellant sitting at the bus stop while Lt. Collins was loaded into an ambulance. Appellant

was arrested at the bus stop where the stabbing occurred.

Appellant was taken into custody. Appellant agreed to a blood test for alcohol and

drugs. Appellant surrendered his cell phone and consented to its search. The folding knife

that was used to stab Lt. Collins was found in Appellant ’ s pocket after being taken into

custody.

At trial, the eyewitness es to the stabbing testified and identified the Appellant as the

perpetrator. Next

, a stipulation was read into the record that a deoxyribonucleic acid (DNA)

analysis and comparison showed that the DNA from the blade of the knife found in the

Appellant ’ s pocket matched Lt. Collins ’ s DNA. The medical examiner testified that the

stab wound was approximately three

- and

- a

- half inches deep and the location indicated that

the knife cut through Lt. Collins ’ s pulmonary artery and cau sed severe internal bleeding.

During the trial, the S tate argued that Appellant stabbed Lt. Collins as a result of his

bigoted views. In support of that theory regarding Appellant ’ s motive, the State introduced,

inter alia, memes into evidence that the Appellant saved on his cell phone and evidence of

Appellant ’ s membership to a racist Facebook group title “ Alt

- Reich Nation, ” based on

Adolf Hitler ’ s Third Reich

. T he circuit court admitted thirteen racially offensive memes

from the Appellant ’ s cellphone into evidence. The memes used racially offensive language

with accompanying pictures, such as : 1) a trading card that was altered to say, “ H ines Heist:

The card allows the player to nab 200 life points from the other player when the n...a ain ’ t

looking

, ” 2) a black and white photo graph of children playing under a sign that says “ Hit6

the N...r Baby ” with an accompanying caption reading, “ Remember back when games

used to have a great plot, ” 3) a picture of television personality and scientist, Bill N ye

stating, “ Consider the Following ” with pictures of a noose, a handgun, and poison, and 4)

a picture uses the literary character, Harry Potter’s, logo and says, “ Harry Potter and the

Final Solution: You ’ re a Grand Wizard, Harry. ” 7

Michael Waski ( “ Waski ” )

, a Federal Bureau of Investigatio n (FBI) computer

forensic examiner ’ s expert

, test ified that 4,000 out of 17,000 pictures on the Appellant ’ s

phone were stored in the digita l camera image folder (DCIM). Waski stated i mages stored

in the DCIM must be manually saved in the DCIM folder and canno t be saved in the folder

by mistake

. Waski explained that t he user must “ interact with the image somehow, ” either

by “ taking pictures with your camera or saving them from a text message, or e

- mail, or

web browser. ” The memes were all saved within five months of the murder.

Another crime analyst testified that a screenshot of the Appellant ’ s F acebook page

from the date of the stabbing listed him as a member of the group “ Alt

- Reich Nation

. ” As

previously mentioned, Clampitt, testified that t he group was based on the “ Third Reich ” of

Nazi Germany. Clampitt also testified that he was a member of the “ Alt

- Reich Nation ”

7 This meme a llud es to both the Nazi ’ s Final Solution, a euphemism used by Nazi

Germany ’ s leaders of mass murdering Europe ’ s Jews, and the Ku Klux Klan ’ s Grand

Wizard, a head leader of the Ku Klux Klan. “ Final Solution ” : Overview

, U NITED S TATES

H OLOCAUST M EMORIAL M USEUM

, https://encyclopedia.ushmm.org/content/en/article/fina

l

- so lution

- overview (last visited: Nov. 9 , 2022); cf. Grand Wizard

, G OOGLE A RTS AND

C ULTURE , https://artsandculture.google.com/entity/grand

- wizard/m05hzpm?hl=en (last

visited: Nov. 9 , 2022).7

Facebook group and that the memes submitted in evidence are consistent with the material

posted o n the Facebook group ’ s member page. A crime analyst for the UM Police

Department testified that the “ Alt

- Reich Nation ” Facebook group had been taken down

approximately forty

- four hours after it was discovered on Appellant ’ s phone. At the end of

the State ’ s case, Appellant made a motion for judgment of acquittal and t he circuit court

denied the motion for both Count One and Count Two

. The court stated

,

[I] n this case there is evidence that the defendant had on his phone manually,

took manual action to save these memes. I think it would be fair to call these

memes racist. The memes in question are of ( sic ) particularly addressed to

[B] lack people. Clearly th e defendant is white. We have the death of

Lieutenant Collins. The question is are these two related.

At this juncture the State has rested and the court takes the evidence in the

light most favorable to the State. So with that regard I will deny the de fense

motion with regard to the hate crime. I will also deny it with regard to the

murder.

However, t he circuit court later granted the Appellant ’ s motion for a judgment of

acquittal for Count Two

, citing the construction of the statute as written

. Maryland ’ s hate

crime statute under § 10

- 304 at the time of Appellant ’ s trial stated :

Because of another ’ s race, color. . ., a person may not:

(1)(i ) commit a crime or attempt to commit a crime against that person. . . .

or

(2) commit a violation of item (1) of this section that:

(i) except as provided in item (ii) of this item, involves a separate

crime that is a felony; or

(ii) results in the death of the victim.

Md. Code Ann., Criminal Law, § 10

- 304 (West 2019) ( emphasis added ).8

In granting the motion in this case the court state d the following:

I analyze the evidence in the case and I find out whether the State has met

their burden, and whether a trier of fact, the jury in the case, could find the

defendant guilty in these cases.

With regard to the murder cases, it is very clear that certainly the State has

met their burden.

The focus on the court would be with the hate crime charges. [sic] Now, I

also think it is important to read the statute. 10

- 304 says because of another

person ’ s race, it i s race in this case, because of another person ’ s race a person

may not commit or attempt to commit a crime against that person. It says

because of that person, meaning because of that person ’ s race, meaning that

was the sole cause of what happened.

In thi s case we have some evidence of the defendant ’ s ideology or belief as

it pertains to [B] lack people. No need to go over that again. He is a member

of that group. In fact he didn ’ t just look over this group, he actually thought

enough, for whatever reason, to save it, actually save it to his phone. Taking

an action in his phone to save it in his phone.

In this case he is

— at least in this case he is outside of another bar. His

friend, Mr. Akshay, sees him punching a sign or something. Then he walks

him up to the bus stop. He leaves him.

The State ’ s witnesses hear loud yelling of some nature. Essentially this

defendant comes up to them, the three of them, and at some point posed the

question “ step left, step left. ” The other two don ’ t respond. I guess they

respond by their body because they step awa y. Lieutenant Collins does not,

he said “ what, ” or “ no, ” and then the defendant strikes him in the chest with

the knife. The issue is did he strike him in the chest because he was [B] lack,

or I should say did he strike him in the chest only because he was [B] lack?

So he could have had

— him being [B]lack could have made him I ’ ll say

from his perspective more likely that he would inflict harm upon him in that

the memes would indicate that he viewed [B]lack people as something less

than I will say white peopl e in this case, but the State has to link up on that

day, at that time that question that a racist, a homophobe, antisemitic could

commit a crime against that other particular group without it being hate based

in this case.9

In this case the court doesn ’ t believe that the State has met their burden with

regard to the hate crime charge and, therefore, I will grant the defense motion

for a judgment of acquittal for that charge only.

Appellant moved for a mistrial based on the court ’ s ruling for Count Two

. Appellant

argued that the race evidence in the case would have been inadmissible had Count Two not

been charged

, and since Count Two no longer remained the evidence was inadmissible and

was prejudicial

. However, the circuit court declined stating,

The court made its ruling yesterday based on the statute, as I indicated. I

believe I indicated that I believe race still could ’ ve been a factor in it based

upon those memes, both the Alt

- [R] eich website, that it could ’ ve been a

factor [in] the actions he took. So I believe that it ’ s still relevant to a murder

charge as far as a possible motive.

I guess I want to be clear, if I wasn ’ t yesterday, that I was not saying that his

memes o r the [Alt

- R eich] Facebook [ group ] [did not] at all play[ ] a role in

what happened on May 20, 2017 and in light of the specific intent of the

statute

. I do believe it ’ s probative.

I do believe it ’ s fair for the State to argue that those views affected the actions

he took that day and I don ’ t believe the prejudice outweighs the probative

value in this case and as well as to I don ’ t believe it fits within the other

crimes. I mean, again, it goes to i ntent in this matter.

On December 18, 2019, the jury was instructed on the remaining charges of first

and second

- degree murder. The court explained to the jury that voluntary intoxication is a

defense to specific intent murder

, but not a defense to second

- degree depraved heart

murder. On December 19, 2019, the jury found Appellant guilty of first

- degree murder.

On January 14, 2021, Appellant was sentenced to life imprisonment with the possibility of

parole. Additional facts will be discussed below as relevant

.

I. A DMISSIBILITY OF C ONTESTED E VIDENCE10 A. Standard of Review

Appellant erroneously state d in his brief and during oral argument that the proper

standard of review is de novo , citing Ayers v. State , 335 Md. 602 (1994)

. We disagree. I n

Ayers

, the defendant challenged the constitutionality of a portion of Maryland ’ s hate crime

statute as it stood at the time of the case , which would require a de novo standard of review

.

Id. at 626. In the case before us, Appellant instead challenges the admissibility of the

contested evidence at trial.

Our review of the circuit court ’ s decision to admit evidence involves a two

- step

analysis. First, without deference to a trial court ’ s conclusion, an appellate court reviews

whether the evidence is legally relevant

. Ford v. State

, 462 Md. 3, 46 (201 8 ). Pursuant to

Maryland Rule 5

- 402, “ [ e]xcept as otherwise provided by constitutions, statutes, or the

[Maryland R]ules, or by decisional law not inconsistent with the [Maryland R]ules, all

relevant evidence is admissible. Evidence that is not relevant is not admissible. ” See Sifrit

v. State

, 383 Md. 116, 129 (2004) ; Dorsey v. State , 276 Md. 638, 643 (1976). Although

relevant, evidence may be excluded if its probative value is substantially outweighed by

the danger of unfair prejudice. MD Rule 5

- 403.

Once the evidence is deemed relevant, the circuit court ’ s decision to admit or

exclude evidence is reviewed by this Court under an abuse of discretion standard.

Merzbacher v. State , 346 Md. 391, 404 (1997) (citing Md. Rule § 5

- 402); Taneja v. State

,

231 Md. App. 1, 11 (2016), cert denied , 452 Md. 549 (2017). “ Abuse of discretion [exists]

where no reasonable person would take the view adopted by the [circuit] court, or when11

the court acts without reference to [ ] guiding rules or principles. ” State v. Robertson , 463

Md. 342, 364 (2019) (qu oting Alexis v. State , 437 Md. 457, 478 (2014)). “ If the trial court ’ s

ruling is reasonable . . . we will not disturb the ruling on appeal. ” Taneja, 231 Md. App. at

12 (citing Peterson v. State , 196 Md. App. 563, 585 (2010)).

B. Parties ’ Contentions

i. Appellant ’ s Contentions

Appellant contends that th e racially offensive memes and evidence of Appellant ’ s

membership to the “ Alt

- Reich ” Facebook group presented in trial should have been

excluded from consideration by the jury after Count Two regarding the hate crime was

dismissed. Citing the Court of Appeals ’ decision in Ayers

, Appellant argues that only if the

State can prove a “ tight nexus ” to the murder

, should the evidence in question be

admissible. Next

, Appellant asserts the contested evidence is speech protected by the First

Amendment

.

Appellant argues that the circuit court failed to conduct a proper analysis and erred

in its determination the contested evidence was admissible under Maryland Rules of

Evidence 5

- 403 and 5

- 404(b) because the jury was empaneled after voir dire questioning

concentrating heavily on the impact of racial motivation and impartiality. Finally,

Appellant argues that because he was intoxicated and could not have formed the specific

intent necessary to be sentenced to first

- degree murder.

ii. State ’ s Contentions

The State contends the contested evidence was relevant and did not violate the First12

Amendment. The State asserts that the evidence was not “ other crimes ” evidence because

it was intrinsic to the charged crimes. Alternatively, if it was “ other crimes ” evidence, the

State argues it was admissible for purposes other than showing criminal propensity.

The S tate cites the Supreme Court case, Wisconsin v. Mitchell , 508 U.S. 476 (1993)

,

explaining

[i] n Mitchell , the defendant ’ s sentence for aggravated battery was enhanced

under a penalty enhancement provision because he “ intentionally selected his

victim on account of the victim ’ s race. ” Mitchell argued the statute violated

the First Amendment because it not only punished crimi nal conduct, but

enhanced the punishment for a crime because of his bigoted beliefs. The

Supreme Court observed that a defendant ’ s motive for committing an offense

has long been relevant to determining an appropriate sentence. In addition,

the Court had long upheld federal and state antidiscrimination laws, which

look to actions taken “ because of ” (i.e., motivated by) factors such as “ race,

color, religion, sex, or national origin. ”

See Mitchell , 508 U.S. at 479

- 487

. The State ’ s argues that i n light of Mitchell and following

Supreme Court cases that upheld the constitutionality of various hate crime statutes from

around the country

, s ee, e.g., People v. Rokicki , 718 N.E. 2d 333, 335, 339 (Ill. App. 1999)

(upholding conviction of man who directed gay epithets at a restaurant server while

committing disorderly conduct); State v. Wyant , 624 N.E.2d 722 (Ohio 1994) (reversing

earlier decision in light of Mitchell and upholding constitutionality of ethnic intimidation

statute)

, 8

8 The State also noted

,

The fact that Mitchell involved a penalty

- enhancement statute and many

states, including Maryland, have created separate hate crime offenses has not

altered the analysis used by other state courts. Under Mitchell ’ s reasoning, a13

the First Amendment offers protection for the expression of offensive views,

[ but ] it does not shield [ Appellant ] from the legislatively proscribed

consequences of engaging in criminal conduct based on animus toward

statutorily enumerated cas es of protected persons. The Court of Appeals in

Ayers v. State , 335 Md. 602, 627 (1994), acknowledged that this legislative

response to crimes motivated by specific bias complies with Supreme Court

doctrine.

The State concludes that the First Amendment does not protect violence, citing NAACP v.

Claiborne Hardware Co. , 458 U.S. 886, 916 (1982), and the contested evidence provides

relevant context of the Appellant ’ s speech to establish the existence of motive in murder ing

Lt. Collins

.

C . Analysis

First, this Court must weigh whether the evidence at issue is relevant. Relevant

evidence is defined as “ evidence having any tendency to make the existence of any fact

that is of consequence to the determination of the action more probable or less probable

than it would be witho ut the evidence. ” MD Rule 5

- 401. “ Evidence which is thus not

penalty enhancement statute is not analytically di fferent from a separate hate

crime offense. See State v. McKnight , 511 N.W.2d 389, 395

- 96 (Iowa 1994),

cert denied, 511 U.S. 1113 (1994). In McKnight , the Supreme Court of Iowa

upheld its hate crime law under Mitchell , observing that a defendant lost First

Amendment protection “ when his racial bias toward [B] lacks drove him to

couple [his] words with assaultive conduct towards [the victim], who is

[B] lack. ” Id. at 395. The Court rejected the notion that the state ’ s law was

distinguishable from Mitchell beca use it defined a new offense rather than

adding a penalty enhancement to an existing offense, noting that neither a

separate statute nor a penalty enhancement statute “ proscribes speech or

thought alone[.] ” Id. at 395

- 96.14

probative of the proposition at which it is directed is deemed irrelevant. ” Sifrit , 383 Md. at

129 (quoting Dorsey, 276 Md. at 643).

In the case before this Court, the contested evidence is highly probative of Count

One because it showed possible motive and intent and Count Two because it goes to the

crux of the alleged hate crime. Appellant was charged for a hate crime under Maryland

Code

, Criminal Law ( “ CL ” ) § 10

- 304 (1)(i) (West 2019)

, which state d,

Because of another person ’ s or group ’ s race, color, religious beliefs, sexual

orientation, gender, disability, or national origin, or because another person

or group is homeless, a person may not:

(1)(i) commit a crime or attempt to commit a crime against that person or

group

. . .

Id. (emphasis added)

. 9 The crime require d proof that the act was committed because of

someone ’ s race. Lipp v. State

, 246 Md. App. 105, 121 (2020). In this case, the State used

the contested evidence to argue Appellant murdered Lt. Collins based on his race.

This Court finds that the facts are clear: Appellant was a member of a group that

had bigoted beliefs against inter alia

, B lack people. The other two eyewitnesses were of

white and Asian descent. He ordered each person to “ step left

. ” Lt. Collins, a Black man,

was stabbed by a person that had bigoted beliefs against Black people. Those bigoted

beliefs aligned with and were encouraged by the membership to the “ Alt

- Reich ” Facebook

9 In 2020, named Lt. Collins ’ s Law, the statute was changed by the Maryland General

Assembly to state “ M

otivated either in whole or in substantial part by another person ’ s or

group ’ s race . . . a person may not commit a crime or attempt or threaten to commit a crime

against that person. ” Md. Code Ann., Crim. Law § 10

- 304(1)(i) (West 2020) (emphasis

added)

.15

group, as testified to by Clamp i tt

— a friend, former high school classmate

, and co

- worker

of Appellant who is also a member of the group

. Clampitt also stated that the group was

based on the “ Third Reich ” of Nazi Germany. The memes that were admitted into evidence

were testified as consistent with materials that were posted on th e Alt

- Reich Nation

Facebook group page.

Appellant argues that since Count Two was dismissed, the evidence presented was

prejudicial to his case

. Under Maryland Rule 5

- 403, the circuit court is entrusted with the

discretion to exclude evidence “ if its probative value is substantially outweighed by the

danger of unfair prejudice, confusion of the issues, or misleading the jury, or by

considerations of undue delay, waste of time, or needless presentation of cumulative

evidence. ” However, e ven if evidence is prejudicial, “ that does not mean that it was

‘ unfairly ’ prejudicial such that the probative value of the evidence was substantially

outweighed by the danger of unfair prejudice. Ford , 462 Md. at 58. In balancing probative

value against prejudice, t he Co urt of Appeals explains

“ the fact that evidence prejudices one party or the other, in the sense that it

hurts his or her case, is not the undesirable prejudice referred to in [Maryland]

Rule 5

- 403. ” Rather, “ [e]vidence may be unfairly prejudicial if it might

influence the jury to dis regard the evidence or lack of evidence regarding the

particular crime with which he [or she] is being charged. ”

Id. at 58

- 59 (quoting Odum , 412 Md. at 615 (cleaned up)). “ The responsibility for

conducting this balancing is entrusted in the first instance to the trial court. ” Johnson , 332

Md. 456, 473 (1993)

.16

Summarily, the nature of the evidence must be such that it generates such a strong

emotional response from the jury such that the inflammatory nature of the evidence makes

it unlikely for the jury to make a rational evaluation of the evidentiary weight. The

inflammatory nature of the evidence must be such that the “ shock value ” on a layperson

serving as a juror would prevent the proper evaluation or weight in context of the other

evidence. How ever, the contested evidence presented in this case did not contain content

that would inherently prevent jurors from rationally considering and weighing the

contested evidence with all other evidence presented during trial, such as, inter alia , the

surveillance footage, the murder weapon found on the Appellant’s person with the victim’s

blood, and the testimony of the eyewitnesses. T hus

, this Court finds no abuse of discretion

in the circuit court ’ s de cision to admit the contested evidence

.

Notably, Appellant relies heavily on Ayers v. State , 335 Md. 602 (1994 )

. In Ayers

,

the defendant challenged the constitutionality of the hate crimes statute which

make it a crime to “ harass or commit a crime upon a person

. . . because of

that person ’ s race, color, religious belief or national origin. ” Ayers argued

that a state cannot constitutionally enact a content

- based law which prohibits

free speech. He maintained that content

- bas ed regulations are presumptively

invalid and that bias

- motivated speech, no matter how reprehensible, “ does

not justify selectively silencing speech on the basis of content. ”

Id. at 609. Ultimately, the constitutionality of the statute was upheld

. Unlike in Ayers , the

constitutionality of the statute is not in question in the case at bar.

I n his brief, Appellant stat es that in Ayers

, “ the Court of Appeals made clear that the

hate crime statute survives an as

- applied challenge under the First Amendment only when17

there is a tight nexus between the otherwise protected speech and the crime. ” We disagree

with Appellant ’ s interpretation of the Ayers case. Appellant ’ s proposed standard under

Ayers reaches further from the actual standard set forth in the case and this Court decline s

to expand the reach of Ayers

. The Ayers C ourt held :

only speech actually connected with the offense should be used as evidence

of motivation. Because there was such a “ tight nexus ” between [previous]

incidents, we hold that admitting the evidence regarding the 7

- Eleven

incident did not violate the First Amendment, nor did it violate the rule which

generally prohibits the introduction of other crimes evidence.

Ayers , 335 Md. at 637 (emphasis added)

. By the plain language of the holding in Ayers

,

the issues implicated were possible violations of the First Amendment and, separately

, the

evidence rule that generally prohibits the introduction of other crimes evidence. To be sure

,

the Court stated that there was a “ tight nexus ” between the incidents but did not create a

standard requiring a tight nexus between the speech and the hate crime to be used as

evidence of motivation for the hate crime.

First, regarding the issue of speech and the hate crime as charged, this Court has

previously stated that the Ayers Court held “ that circumstantial proof of racial motivation

was of ‘ vital importance ’ to proving the defendant committed a hate crime. ” Sewell v. State,

239 Md. App. 571, 612 (2018) (emphasis added). Inherently, racially motivated evidence

must be connected in some way to the hate crime charged as stated in Ayers. Indeed, the

Ayers Court quoted the ACLU of Maryland and ACLU of National Capital Area ’ s Brief of

Amicus Curiae stating that:18

“ At a minimum, any speech or association that is not contemporaneous with

the crime must be part of the chain of events that led to the crime. Gener alized

evidence concerning the defendant ’ s racial views is not sufficient to meet

this test. ”

Ayers , 335 Md. at 636 (quoting Brief of Amicus Curiae ACLU of Maryland and ACLU of

National Capital Area at 13 n. 9). However, t his Court does not read the holdi ng of the

Ayers case to require a “ tight nexus ” between the incidents ( as Appellant repeatedly

iterates ) , but rather that the racially motivated speech , when weighed in context and for

motivation of a charged hate

- crime under Md. Code Ann., CL § 10

- 304

, has to be

connected in some way with the hate crime offense to be used as evidence of motivation

of the hate crime

. See Sewell v. State, 239 Md. App. 571, 612 (2018). This Court reads this

standard to only appl y to the theory of motivation of charged hate crime s and not the

charg ed first

- degree murder charge

.

Appellant was acquitted of the hate crime because the circuit court could not find

that the Appellant murdered Lt. Collins solely “ because of ” his race. Despite h o ld ing that

the State had not passed the high evidentiary bar set to convict Appellant of a hate crime

,

the circuit court still found the contested evidence relevant to motivation for first

- degree

murder

. This Court holds that the circuit court did not err in doing so and is not inconsistent

with Ayers. T he Ayers Court reiterated the Supreme Court ’ s standard set forth in Mitchell.

The prospect of a citizen suppressing his bigoted beliefs for fear that evidence

of those beliefs will be introduced against him at trial if he commits a serious

offense against person or property . . . is simply too speculative a hypothesis

. . . The First Amendment, moreover, does not prohibit the evidentiary use of

speech t o establish elements of a crime or to prove motive or intent. Evidence19

of a defendant ’ s previous declarations or statements is commonly admitted

in criminal trials subject to evidentiary rules dealing with relevancy,

reliability, and the like.

Mitchell

, 508 U.S. at 489. This Court in Lipp

, further explained Mitchell , stating that bias

motivated speech, coupled with non

- verbal, proscribed conduct, is not protected by the

First Amendment. Lipp , 246 Md. App. at 121.

Notably, the memes were not just racially offensive. In addition to being racist, the

memes encouraged and promoted violence against Black people by “ nab[bing] . . . life

points . . . when the n

... a ain ’ t looking[,] ” “ Hit[ting] the N

... r Baby[,] ” and images st ating

to “ consider ” nooses, which has a historical significance in the killing of Black people in

American history. Because Appellant was charged with first

- degree murder

, the State had

to prove that the killing had been a willful

, deliberate, and premeditated intent to kill the

victim, and that he committed some overt act towards that end. Martin v. State

, 218 Md.

App. 1, 40

- 41 (2014) (citations omitted). “ An intent to kill often must be proved by

circumstantial evidence and found b y inference. Absent an admission by the accused, it

rarely can be proved directly. ” Burch v. State

, 346 Md. 253, 273 (1997) (citing State v.

Earp

, 319 Md. 156, 167 (1990)). Memes depicti ng violence against Black people

constituted relevant evidence that was probative of Appellant ’ s intent to violently harm Lt.

Collins

. Thus, this Court holds that the contested evidence was admissible to prove motive

for first

- degree murder and does not violate the Appellant ’ s First Amendment rights.

i. Evidence of “Other Crimes”

In Ayers , the defendant maintained that evidence of a prior criminal altercation was20

improperly admitted because it constituted evidence of “ other crimes

. ” Id. at 6 29

- 30

. This

Court does not perceive being part of a white supremacist group or having racist memes

on your cell phone as a per se crime . However, this Court must weigh, under Maryland

Rule 5

- 404(b), whether the evidence is admissible under the “other crimes” legal

framework for its admissibility as motive or inte nt evidence. Under Maryland Rule 5

-

404(b):

Evidence of other crimes, wrongs, or other acts . . . is not admissible to prove

the character of a person in order to show action in the conformity therewith.

Such evidence, however, may be admissible for other purposes, such as proof

of motive, opportun ity, intent, preparation, common scheme or plan,

knowledge, identity, absence of mistake or accident, or in conformity with

Rule 5

- 413.

Id. ( emphasis added ) ; s ee also Nelson v. State

, 5 Md. App. 109, 121 (1968) (generally

citing Dobbs v. State

, 148 Md. 34 (1925)) (emphasis added). In addition to the rules of

evidence regarding relevancy and prejudice, as previously addressed, to be admissible

evidence of motive or intent , the evidence must ha ve some special relevance to the

contested issue and the defendant must have been found to actually have committed the

crimes

. Cf. Odum v. State , 412 Md. 593, 61 0 (2010) ; Streater v. State , 352 Md. 800, 806

(1999)

.

The contested evidence wa s relevant to prove Appellant’s motive or intent to harm

Lt. Collins

. Motive or intent evidence can show special relevance to the case and can be

proven by prior conduct

. Cf. Odum , 412 Md. at 61 0 ; Johnson v. State

, 332 Md. 456, 470

(1993). Such evidence is admissible, even if not directly concurrent, when the subject acts21

are obviously connected to the charge. Id. As previously stated, Appellant was charged

with first

- degree murder and the State had to prove the wi llful, deliberate, and premeditated

nature of Appellant’s actions. The memes depicted violence against Black people like Lt.

Collins. It was uncontested that the memes were saved to the Appellant’s phone and

Appellant joined the white supremacist Facebook group in the months leading up to Lt.

Collins’ murder. Thus, although the State could not prove the act was solely because of 10

Lt. Co llins’s race and Count Two was ultimately dismissed by the circuit court, this Court

holds that the contested evidence to show motive or intent to harm Lt. Collins was highly

probative and has special relevan ce to Count One charging murder.

ii

. Harmless Error

Though , arguendo, if the evidence was not properly admitted, on review, we would

apply the longstanding principle that improperly admitted evidence must be prejudicial to

warrant reversible error. See Maryland Rule 5

- 103(a) (stating general ly that “ [e]rror may

not be predicated upon a ruling that admits or excludes evidence unless the party is

prejudiced by the ruling ” ). “ [P]rejudice is not presumed ‘ when the jury considers evidence

admitted by the trial court which is later determined to have been erroneously admitted. ’”

Merritt v. State , 367 Md. 17, 33 (2001) (citing State Deposit v. Billman , 321 Md. 3, 1 6

(1990)). Rather, it is well settled in Maryland that we will review prejudice through the

10 Notably, supra fn. 4, 9, in 2020, the General Assembly changed the statute to replace

“because of” with “motivated either in whole or in substantial part by” the protected

characteristics. Md. Code Ann., Crim. Law § 10

- 304 (West 2020).22

lens of harmless error:

when a n appellant, in a criminal case, establishes error, unless a reviewing

court, upon its own independent review of the record, is able to declare a

belief, beyond a reasonable doubt, that the error in no way influenced the

verdict, such error cannot be deeme d ‘ harmless ’ and a reversal is mandated.

Dorsey v. State , 276 Md. 638, 659 (1976). Furthermore,

In a criminal jury trial, the jury is the trier of fact. For this reason, it is

responsible for weighing the evidence and rendering the final verdict.

Therefor e, any factor that relates to the jury ’ s perspective of the case

necessarily is a significant factor in the harmless error analysis. Thus,

harmless error factors must be considered with a focus on the effect of

erroneously admitted, or excluded, evidence o n the jury.

Dionas v. State , 436 Md. 97, 109 (2013) (emphasis added) ; Beckwitt v. State , 249 Md. App.

333, 400

– 01

, cert. granted , 474 Md. 720 (2021), and aff ’ d , 477 Md. 398 (2022),

reconsideration denied (Mar. 25, 2022).

Appellant was charged with first degree murder and acquitted of Count Two.

Appellant contends that :

When the Appellant was acquitted of the hate crime, a mistrial was required

as the entire trial had been about the memes. There was a likely possibility

that the jury would convict Appellant of the murder because they had been

told [Appellant] was a racist

– a bad person.

However, there was an overwhelming amount of non

- racially charged evidence before the

jury that Appellant intended to kill or serious ly injure Lt. Collins , such as : 1) the two

eyewitnesses at the scene that: a) witnessed the Appellant approach the group, wield his

knife

, and stab Lt. Collins and b) identified the Appellant as the perpetrator of Lt. Collins ’

murder; 2) the knife with Lt. Collins ’ s blood on the weapon found on the Appellant ’ s23

person when he was arrested ; 3 ) the surveillance evidence of the Appellant stabbin g Lt.

Collins ; and 4) the nature of the assault and location of the stab wound in the chest cavity

.

See generally Wood v. State , 209 Md. App. 246 , 325 (2012). Thus, this Court does not find

the Appellant ’ s argument about the “ likely possibility that the jury would convict Appellant

of the murder ” because of the contested evidence convincing

. Most certainly, this Court

does not find the contested evidence prejudicial enough to warrant reversible error.

II. M OTION FOR M ISTRIAL

Appellant argues that the circuit court erred in refusing to declare a mistrial after

granting the renewed motion for judgment of acquittal for Count Two. Appellant presented

evidence during trial that Appellant may have been intoxicated when he stabbed Lt

.

Collins. The circuit court explained to the jury that voluntary intoxication is a defense to

specific intent murder, but not a defense to second

- degree depraved heart murder. On

December 19, 2019, the jury found Appellant guilty of first

- degree murder. A ppellant

suggests that absent the contested evidence, the “ jury would have been left a genuine debate

of whether Appellant ’ s intoxication left him unable to act willfully or deliberately. ”

The State, in response, contends that Appellant is wrong because the circuit court

declared that the judgment of acquittal “ was no t a repudiation of its evidentiary ruling (and

that evidence was still relevant to the jury ’ s consi d er ation of the murder char ge), but rather

on the specific statutory language of the hate crime statute . . . ” Moreover, the State cites

this Court ’ s previous holding in M cIntyre v. State , 168 Md. App. 504, 524 (2006)

explaining that a “ mistrial is an extreme sanction ” that is necessary only “ when such24

overwhelming prejudice has occurred that no other remedy will suffice to cure the

prejudice. ”

W e agree with the State. In Barrios v. State , 118 Md. App. 384, 396

- 97 (1997)

(internal citations and quotations omitted), this Court stated :

[T]he declaration of a mistrial is an extraordinary act which should only be

granted if necessary to serve the ends of justice. The granting of a motion for

a mistrial is committed to the sound discretion of the trial court. We will not

reverse a trial court ’ s denial of a motion for mistrial unless the defendant was

so clearly prejudiced that the denial constituted an abuse of discretion. The

reviewing court s hould not determine whether less stringent security

measures were available to the trial court, but rather whether the measures

applied were reasonable and whether they posed an unacceptable risk of

prejudice to the defendant.

For the reasons previously stated

, t his Court holds that the Appellant was not so

clearly prejudiced by the circuit court ’ s decision to deny the motion for a mistrial , thus the

circuit court did not abuse its discretion in doing so. Thus, this Court declines to reverse

the circuit court ’ s denial of a motion for a mistrial.

According ly

, we affirm the circuit court judgment

.

JUDGMENT OF THE CIRCUIT COURT

FOR PRINCE GEORGE ’ S COUNTY

AFFIRMED ; COSTS TO BE PAID BY

APPELLANT

.Circuit Co urt for Prince George’s County

Case No. CT 171444 X

REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 1318

September Term, 20 20

______________________________________

SEAN URBANSKI

v.

STATE OF MARYLAND

______________________________________

Berger

, Arthur

, Reed

,

JJ.

______________________________________

Concurring Opinion of Arthur J.

______________________________________

Filed: December 7 , 2022I respectfully concur in the judgment. I write separately to explain my reasoning.

There is no question that Sean Urbanski murdered Lt. Richard Collins: two

eyewitnesses testified that Urbanski stabbed Lt. Collins, the police found the bloody knife

in Urbanski’s pocket, and the crim e was captured on surveillance video. By the time this

case went to the jury, the only question was whether Urbanski was guilty of first

- degree

premeditated murder or of second

- degree murder. Urbanski introduced a considerable

amount of evidence tending to show that he was so drunk at the time of the incident that

he could not have formed the requisite state of mind for first

- degree murder. 1

Yet, a s the State acknowledges, “[t]he main issue at trial” was not premeditation,

but the admissibility of the racist memes on Urbanski’s phone and Urbanski’s

membership in the Alt

- Reich Facebook group. The circuit court admitted that evidence

on the premise that it was relevant to whether Urbanski had committed a hate crime

– i.e.,

to whether Urbanski had murdere d Lt. Collins “ [ b ] ecause of” his race, within the

meaning of § 10

- 304 of the Criminal Law Article. At the close of all the evidence,

1 For example, Urbanski’s friend, Akshay Lingayat , testified that as he was

leaving a bar at 2:00 a.m., about an hour before the murder, he saw Urbanski, who was

punching a lightpost and seeme d to be extremely intoxicated and unable to express

anything other than random thoughts. The eyewitnesses heard angry, nonsensical

screaming from the woods just before Urbanski emerged from them. A toxicologist

testified that, based on a blood sample tak en hours after the arrest, Urbanski’s blood

alcohol concentration at the time of the murder was between .17 and .24 grams of alcohol

per milliliter of blood, or between two and three times the legal limit for driving. After

stabbing Lt. Collins to death, Urbanski did not leave the scene; instead, he sat down at the

nearby bus stop, where the eyewitnesses pointed him out to the police. And video

footage from the police station shows Urbanski singing to himself and urinating into a

drain in his cell at some point shortly after 4:00 a.m.2

however, the court correctly granted a motion for judgment of acquittal on the hate

crimes charge. See generally Ayers v. State , 335 Md. 602, 637 (1994). 2

Having acquitted Urbanski of the hate

- crimes charge, the court was confronted

,

after more than a week of trial, with a problem concerning the considerable amount of

evidence that it had admitted concerning Urbanski’s racis t beliefs . Although the court

had admitted that (highly inflammatory) evidence in support of the now

- defunct hate

crimes charge, it reasoned that the evidence was relevant to Urbanski’s “motive” for

stabbing Lt. Collins or to Urbanski’s “intent.” On that basis, the court denied Urbanski’s

motion for a mistrial.

Had I been called upon to make those same decisions, I would have con cluded that

the probative value of the racist memes and of Urbanski’s membership in a neo

- Nazi

organization was substantially outweighed by the danger of unfair prejudice, in a case

that now involved only a charge of murder. Thus, I would have concluded t hat that

2 The court granted the motion for judgment of acquittal on the premise that

Urbanski could be guilty of a hate crime only if he had acted solely “because of” race. I

question whether that interpretation was correct. Cf. Bostock v. Clayton County,

Georgia

, ___ U.S. ___, 140 S. Ct. 1731, 1741 (2020) (under Title VII of the Civil Rights

Act of 1964, which prohibits discrimination “because of” sex, race, and other enumerated

factors, an employer is liable if it intentionally fires an employee “based in part” o n a prohibited factor; “[i]t doesn’t matter if other factors . . . contributed to the decision”). In

this case, the hate

- crimes charge was not flawed because of the presence of motivating

factors other than race; it was flawed because the State could not show the requisite “tight

nexus” between Urbanski’s racist views and his criminal conduct. Ayers v. State , 335

Md. at 637 . In contrast to this case, the Ayers Court upheld a hate

- crimes conviction

against a white defendant who assaulted Black victims, wh ere the defendant had said that

he wanted to go “n****r hunting” because of another racially

- charged altercation a few

days earlier. Id. In Ayers , unlike this case, the State established a “tight nexus” between

the defendant’s conduct in the earlier alte rcation and the subsequent assault.3

evidence was inadmissible under Md. Rule 5

- 403. I find it incongruous that the State

must establish a “tight nexus” between the defendant’s racist attitudes and the

defendant’s criminal conduct in order to prove that a crime was also a hate crime ( Ayers

v. State , 335 Md. at 637), but that the State is relieved of that obligation when it seeks to

use the defendant’s racial attitudes only to prove that the defendant committed the

underlying crime itself. I am concerned that the jury may have convic ted Urbanski of

first

- degree murder because he is a racist, and not because the State proved the element of

premeditation beyond a reasonable doubt. I find it difficult to believe that the court

would have admitted the evidence of Urbanski’s racist attitu des had the State not

overcharged this case by indicting Urbanski for a hate crime that it was ultimately unable

to prove.

Having determined that the memes and the evidence of Urbanski’s membership in

a neo

- Nazi organization were inadmissible in a case th at involved only a charge of

murder, I would have declared a mistrial. The mistrial would have enabled the State to

retry Urbanski for Lt. Collins’s murder and to secure a murder conviction based on the

evidence of his criminal conduct, rather than on his inflammatory, racist views.

I concur in the judgment because I recognize that an appellate court must afford an

enormous degree of deference to the trial court judge’s discretionary determinations

about whether the probative value of evidence is substa ntially outweighed by the danger

of undue prejudice ( see

, e.g

., Walter v. State , 239 Md. App. 16 8 , 198

- 99 (2018)) and

about whether to grant a mistrial. See

, e.g

., Nash v. State , 439 Md. 53, 67

- 68 (2014).

Those decisions are not mine; they are entrusted to the trial judge. This Court can reverse4

those decisions only if it finds an abuse of discretion, which is said to occur when no

reasonable person would take the view adopted by the trial court; when the court acts

without reference to guiding rules or principles; or when the ruling appears to have been

made on untenable grounds, or is clearly against the logic and effect of the facts and

inferences before the court, or constitutes an untenable judicial act that defies reason and

works an injustice. See

, e.g

., North v. North , 102 Md. App. 1, 13

- 14 (1994)

. “[A] ruling

reviewed under an abuse of discretion standard will not be reversed simply because the

appellate court would not have made the same ruling.” Id . at 14.

I cannot see an abuse of discretion in this case. I see difficult decisions by a

conscientious trial judge. For that reason, I respectfully concur in the judgment.The correction notice (s) for this opinion (s) can be found here:

https://mdcourts.gov/ sites/default/files/import/appellate/correctionnotices/cosa/1318s20cn.pdf