Everette William Johnson v. State of Maryland, No. 11, September Term, 2021. Opinion 

by Hotten, J. 

CRIMINAL LAW – INDICTMENTS AND CHARGING INSTRUMENTS – DUPLICITOUS 

CHARGES

The constitutional guarantee to a unanimous jury verdict in a criminal case may be violated 

where a prosecutor introduces evidence of multiple distinct criminal incidents to prove a 

crime charged as a single count. In such circumstances, the prosecutor should be required 

to elect to pursue one of the incidents underlying the charge, or the jury should be provided 

with a special instruction that it must unanimously agree as to which incident underlies any

conviction. 

CRIMINAL LAW – INDICTMENTS AND CHARGING INSTRUMENTS – DUPLICITOUS

CHARGES – SINGLE INCIDENT OR TRANSACTION

In determining whether a series of criminal acts may underlie a single charge or multiple

charges, courts should consider whether a juror could have reasonably perceived separate 

incidents, and therefore, based their convictions on different underlying material facts. 

Various factors may be helpful in this inquiry, including: acts occurring at different times

or places and separated by intervening events; if the defendant reached a fork in the road 

between the acts and decided to invade another interest; if the first action concluded and 

the next act was motivated by a new impulse; if the jury must resolve different factual 

disputes concerning each action; and if the State presented the acts as separate to the jury. 

No individual factor is dispositive, as the central inquiry is whether a juror could have 

reasonably perceived the incidents as separate crimes based on the evidence presented and 

arguments made at trial. 
Circuit Court for Baltimore County

Case No. 03-K-18-003634

Argued: October 4, 2021 IN THE COURT OF APPEALS

OF MARYLAND

No. 11

September Term, 2021

__________________________________

EVERETTE WILLIAM JOHNSON

v.

STATE OF MARYLAND

__________________________________

Getty, C.J.,

*McDonald,

Watts,

Hotten,

Booth,

Biran,

Gould,

JJ.

__________________________________

Opinion by Hotten, J.

Getty, C.J., McDonald and Gould, JJ., 

dissent.

__________________________________

Filed: March 14, 2022

*McDonald, J., now retired, participated in 

the hearing and conference of this case 

while an active member of this Court; after 

being recalled pursuant to Maryland 

Constitution, Article IV, Section 3A, he 

also participated in the decision and 

adoption of this opinion. 
Everette William Johnson (“Petitioner”) was tried in the Circuit Court for Baltimore 

County for first-degree burglary, first-degree assault, second-degree assault, use of a

firearm in the commission of a crime of violence, and illegal possession of a firearm after 

conviction of a disqualifying crime. He was acquitted of first-degree assault but convicted 

of the remaining charges. Although evidence was presented to the jury of two incidents,

occurring within minutes of each other, that could have satisfied two counts each of first 

or second-degree assault and use of a firearm in the commission of a crime of violence, 

Petitioner was charged with a single count of each crime. The circuit court declined 

defense counsel’s request after closing arguments that the jury be instructed that it must 

unanimously agree as to Petitioner’s guilt for the same underlying incident to support a 

verdict regarding those counts. 

Petitioner appealed to the Court of Special Appeals, which affirmed the circuit court 

in a 2-1 decision. The majority found that no special unanimity instruction or election 

between incidents was required, determining there was only a single ongoing incident at 

issue, as the two allegedly separate incidents occurred within a short period of time and

space, and all in furtherance of Petitioner’s burglary. The dissent disagreed, identifying

the commission of two separate assaults involving two different weapons, and thus,

concluded that Petitioner’s conviction did not comply with the constitutional guarantee of 

a unanimous jury verdict for criminal defendants. 

We granted certiorari to address the following question: 

Whether a defendant’s right to a unanimous jury verdict is violated when the 

State presents evidence of multiple incidents at trial to prove a single charged 
2

count, in absence of an election between the incidents or a special jury 

instruction?

We answer in the affirmative and reverse the decision of the Court of Special Appeals. 

FACTUAL AND PROCEDURAL BACKGROUND

The Underlying Incident

On August 1, 2018, Petitioner entered an unoccupied and unlocked house in 

Catonsville, Maryland. Sometime later, the homeowner, Jeanne Robin, returned with her 

minor son and discovered Petitioner in her attic. Ms. Robin testified that when she 

discovered Petitioner, he was holding her husband’s antique rifle, which she believed to be 

inoperable and not loaded. She attempted to wrestle the rifle from Petitioner’s hands, but

Petitioner told her “this thing is loaded” and cycled its lever, which was the rifle’s 

mechanism for allowing ammunition to be loaded. Ms. Robin then testified that she 

became concerned that the rifle was actually operable, since she had previously assumed

that its lever was jammed. She yelled for her son, who was downstairs, to go outside, and

she ran down the attic stairs. While Ms. Robin was downstairs, she called 911 to report 

the home invader, retrieved her handgun from a lockbox located in her bedroom closet, 

loaded the gun with bullets located in a different location from the lockbox, and then 

returned to the bottom of the stairs.

Armed with her handgun, Ms. Robin shouted up to Petitioner from the bottom of 

the attic stairs that she had called the police and would shoot him if he tried to come down 

the stairs. She testified that she was surprised to find Petitioner in the same place she had 

left him, stating: 
3

[I]n this whole thing, he has not fled. I have time to go down the stairs. Get 

into my bedroom. Into my closet. Open the lockbox. Get my gun. Get the 

speed loader. Load the gun. Close the gun. Get back to the door, and the 

man is still at the top of the stairs.

Ms. Robin closed and leaned against the attic stair door, attempting to detain Petitioner 

until the police arrived.1 Petitioner, however, came down the stairs, managed to push 

through the door, and struggled with Ms. Robin over control of her handgun. During that 

struggle, the handgun discharged through Ms. Robin’s right hand. Petitioner ultimately 

escaped from the home with Ms. Robin’s handgun.2 He was apprehended by police shortly 

thereafter.

Legal Proceedings

A. Circuit Court Proceeding

Petitioner was tried in the Circuit Court for Baltimore County for one count of firstdegree burglary, one count of first-degree assault, one count of second-degree assault, one 

count of use of a firearm in the commission of a crime of violence, and one count of illegal 

possession of a regulated firearm after being convicted of a disqualifying crime. During 

closing arguments, the State made the following statements, among others, pertaining to 

the assault and use of a firearm in the commission of a crime of violence charges:

He committed a first -- committed a first[-]degree burglary without question. 

He used a crime of violence during the first -- handgun -- firearm during the 

1 Ms. Robin testified that she was motivated to detain Petitioner because she feared 

that if he left the house, he would encounter her son who was outside on the porch.

2 Petitioner had previously dropped a backpack filled with items from the Robins’

home on the attic stairs, as it had gotten stuck while he pushed through the attic door.
4

commission of that first[-]degree burglary, initially that rifle he grabbed and 

also the handgun. 

He also committed a first[-]degree assault during the burglary, and that was 

initially pulling the rifle on her, and then also the struggle over the gun and 

shooting her in the hand. 

And again, in its closing rebuttal, the State argued:

It could not be anymore clear that the defendant is guilty as charged.

Guilty of the first[-]degree burglary of their home. 

Guilty of the first[-]degree assault of Ms. Robin, not only up in the attic when 

he arms himself with their rifle, but when we move downstairs to the struggle 

and him firing that handgun. Firing that bullet through her hand.

Guilty of using that handgun in the commission of those crimes. 

Guilty of using that rifle upstairs to try to complete the burglary.

Guilty of using that handgun during the struggle. And then guilty of being a 

person who has been convicted of a disqualifying crime and being in 

possession of that handgun. The defendant is guilty on all counts. 

Thank you.

Thereafter, defense counsel requested that the court provide a supplemental 

instruction to the jury that “what they’re finding [Petitioner] guilty or not guilty of is the 

allegation of firing the gun through Ms. Robin’s hand, and that the firearm we’re talking 

about is the revolver.” The State replied that the charges pertained to one continuing 

criminal event and a breakdown of each individual action was unnecessary. The court 

ultimately denied defense counsel’s request, reasoning that the jury had “listened to the 

elements of the crime . . . [and] listened to the instructions that include that opening 
5

statement and closing argument are not evidence in the case.”3 The court noted, but 

overruled, defense counsel’s objection to the court’s denial of its requested supplemental 

instruction. 

The jury acquitted Petitioner of first-degree assault but found him guilty of all other 

charges levied against him, including second-degree assault and use of a firearm in the 

commission of a crime of violence.

4

B. Opinion of the Court of Special Appeals

Petitioner filed a timely appeal to the Court of Special Appeals, asking whether the 

circuit court “abused its discretion in failing to provide a supplemental instruction after the 

State argued in closing that the jury could rely on either of two distinct incidents to find 

[him] guilty of crimes that were charged as single counts.”5 Johnson, 2021 WL 408845, 

at *1. The Court of Special Appeals affirmed the circuit court in a 2-1 unreported opinion. 

Id. at *3. Citing to Cooksey v. State, 359 Md. 1, 752 A.2d 606 (2000) and Mohler v. State, 

3 The jury was given the following general unanimity instruction: “[y]our verdict 

must represent the considered judgment of each juror and must be unanimous. In other 

words, all 12 of you must agree.” 

4 As recognized by the Court of Special Appeals, the issues raised in Petitioner’s 

appeal and subsequent petition for writ of certiorari to this Court only pertain to his seconddegree assault and use of a firearm in the commission of a crime of violence convictions. 

Johnson v. State, No. 1329, Sept. Term, 2019, 2021 WL 408845, at *1 (Md. Ct. Spec. App. 

Feb. 5, 2021). 

5 Unrelated to his appeal to this Court, Petitioner also asked the Court of Special 

Appeals, “[w]hether the trial court abused its discretion in refusing to ask potential jurors 

during voir dire whether they had strong feelings about firearm laws in this State or 

country.” Id. at *1. The Court held that it did not. Id. at *4. 
6

120 Md. 325, 87 A. 671 (1913), the majority reasoned that all of Petitioner’s conduct “was 

committed as part of a single incident[]” that was “in furtherance of the burglary.” Id. at 

*3. The majority specifically focused on the fact that all of the alleged criminal actions 

occurred within a short span of time and space. Id. at *3. 

Judge Friedman dissented, disagreeing that Petitioner’s actions were all part of a 

single incident. Id. at *4 (Friedman, J., dissenting). His opinion stated:

As I understand the record, there were allegations of two separate assaults—

one at the top of the stairs, one at the bottom of the stairs—in two different 

modalities, and even involving two separate weapons. If the State had 

charged both assaults, Johnson might well have been convicted of both. As 

it is, however, the State only charged one but specifically told the jury it could 

convict on evidence of either. As a result, in my view, we cannot know of 

which assault Johnson was convicted. Although it might not seem likely, it 

is possible that the jury was divided on whether to convict of the assault at 

the top of the stair[s] and divided on whether to convict of the assault at the 

bottom of the stairs, but all agreed to convict him of either one assault or the 

other. Because we don’t know, I don’t think this conviction complied with 

our constitutional requirements. See Cooksey v. State, 359 Md. 1, 8–9, 752 

A.2d 606, 609–610 (2000). I respectfully dissent.

Id. (Friedman, J., dissenting) (footnote omitted). 

Petitioner filed a petition for certiorari to this Court, which we granted on May 

11, 2021. Johnson v. State, 474 Md. 633, 255 A.3d 170 (2021). 

DISCUSSION

Standard of Review

This Court has held that “[t]he decision of whether to give supplemental instructions 

is within the sound discretion of the trial judge and will not be disturbed on appeal absent 

a clear abuse of discretion.” Sidbury v. State, 414 Md. 180, 186, 994 A.2d 948, 951 (2010); 
7

see also Lovell v. State, 347 Md. 623, 657, 702 A.2d 261, 278 (1997) (“Whether to give a 

jury supplemental instructions in a criminal cause is within the discretion of the trial 

judge.”). The discretion afforded to a trial court, “is not unlimited; when the issue is 

whether a constitutional right has been infringed, we make our own independent 

constitutional appraisal.” Crosby v. State, 366 Md. 518, 526, 784 A.2d 1102, 1106 (2001). 

Contentions of the Parties

Petitioner argues that the circuit court erred in failing to give the jury a special 

unanimity instruction or require the State to elect a single incident as the basis for criminal 

liability where it presented evidence of two distinct incidents, either of which could have 

supported a conviction for second-degree assault and use of a firearm in the commission 

of a crime of violence. Petitioner contends that the incident with the rifle at the top of the 

attic stairs was distinct from the incident at the bottom of the stairs with the handgun, first, 

because the State told the jury in closing arguments that the two events were distinct,

second, because the two incidents involved different legal theories and factual issues, and 

finally, because the events were not so close in space and time as to constitute a single 

incident. Thus, Petitioner argues that the State should have been required to elect between 

the two incidents, or, the jury should have been instructed that it must be unanimous as to 

which underlying incident supported its conviction. 

The State counters that the Court of Special Appeals correctly determined that

Petitioner’s encounters with Ms. Robin were part of a single continuous incident, and 

therefore, that a special unanimity instruction or election between incidents was not 
8

required. It reasons that the events occurred within a short period of time and in a confined 

space, and denies that the prosecutor portrayed the incidents as separate a trial. 

Multiple Charges and the Right to a Unanimous Jury Verdict

Article 21 of the Maryland Declaration of Rights and the Sixth Amendment of the 

United States Constitution guarantee criminal defendants the right to a unanimous jury 

verdict. MD. CONST., Decl. of Rts. art. 21 (“That in all criminal prosecutions, every man 

hath a right to . . . a speedy trial by an impartial jury, without whose unanimous consent he 

ought not to be found guilty.”); U.S. CONST. amend. VI; see also Ramos v. Louisiana, 140 

S. Ct. 1390, 1391 (2020) (holding that the “Sixth Amendment right to a jury trial—as 

incorporated against the States by way of the Fourteenth Amendment—requires a 

unanimous verdict to convict a defendant of a serious offense[]”). “Unanimity is 

indispensable to the sufficiency of the verdict.” Jones v. State, 384 Md. 669, 683, 866 A.2d 

151, 159 (2005) (emphasis omitted) (quoting Ford v. State, 12 Md. 514, 549 (1859)). 

The constitutional right to a unanimous jury verdict is threatened when a charge 

levied against a criminal defendant is duplicitous. See Cooksey, 359 Md. at 9–10, 752 A.2d 

at 610. This Court has long defined duplicity as “the joinder of two or more distinct and 

separate offenses in the same count.” Id. at 7, 752 A.2d at 609 (quoting State v. Warren, 

77 Md. 121, 122, 26 A. 500, 500 (1893)). Duplicitous charges create a constitutional 

unanimity concern because a court cannot be certain “that a verdict rendered on a 

duplicitous count truly represents the unanimous agreement of the jury as to each offense 

charged in the count[,]” or whether some jurors found guilt on one offense but not the other, 
9

and vice versa. Id. at 9–10, 752 A.2d at 610. The prohibition against duplicitous charges

has also been codified as a rule of pleading in Maryland Rule 4-203(a).

6

 

This Court’s prohibition on duplicitous charges has generally addressed charges that 

were duplicitous on their face. See, e.g., Cooksey, 359 Md. at 4–5, 752 A.2d at 607 (holding 

an indictment was duplicitious that charged a criminal defendant with committing a sexual 

offense by engaging in a “sexual act” in a “continuing course of conduct” over the time 

span of a year, in a single count); Kirsner v. State, 183 Md. 1, 6, 36 A.2d 538, 540 (1944)

(holding an indictment duplicitous that charged, in a single count, various violations of the 

Baltimore City building code). The same constitutional unanimity concerns arise where 

the State presents evidence of multiple distinct incidents to prove a crime charged as a 

single count, namely, that the jury will not unanimously agree as to which criminal incident

the defendant committed.7 See Cooksey, 359 Md. at 9, 752 A.2d at 610 (“[J]ury unanimity 

6 Maryland Rule 4-203(a) provides that two or more offenses are permitted to “be 

charged in separate counts of the same charging document if the offenses charged are of 

the same or similar character or are based on the same act or transaction or on two or more 

acts or transactions connected together or constituting parts of a common scheme or plan.” 

(Emphasis added). In Cooksey, we described this Rule as an “indirect[]” codification of 

the prohibition against duplicity in the criminal context, reasoning that “[b]y limiting what 

may be charged even in separate counts of a single charging document, the Rule rather 

clearly precludes the charging of separate offenses in a single count.” 359 Md. at 8, 752 

A.2d at 609. 

7 This issue is distinguishable from the question presented in Watts v. State, where 

the court found that a jury was not required to unanimously agree whether the modality

through which a defendant committed second-degree assault in a single action was battery 

or intent to frighten. 457 Md. 419, 440, 179 A.3d 929, 941 (2018). In contrast, the present 

issue concerns factually separate incidents and the requirement that jurors must be 

unanimous as to which factual incident underlies a guilty verdict. 
10

concerns arise because a court cannot always be certain that a verdict rendered on a 

duplicitous count truly represents the unanimous agreement of the jury as to each offense 

charged in the count.”). In such circumstances, the majority of our sister states have 

determined that it is proper to require the prosecutor to elect between the various incidents 

or to give a special jury instruction, informing the jurors that they must agree that the 

defendant is guilty based on the same underlying criminal incident.

8

 

In Cooksey, this Court examined at length the rule against duplicitous charges and 

under what circumstances separate criminal acts may permissibly be combined to create a 

single punishable offense.9 359 Md. at 7–11, 752 A.2d at 609–11. This Court found that 

8 See, e.g., Ramsey v. State, 355 P.3d 601, 602 (Alaska Ct. App. 2015) (“When the 

State presents evidence that a defendant committed multiple different acts that could each 

support a criminal conviction, the court is required to instruct the jury that [it] must be 

factually unanimous as to which act the defendant committed.”) (footnote omitted); 

Williams v. United States, 981 A.2d 1224, 1228 (D.C. 2009) (“[W]hen a single count 

encompasses two (or more) factually separate criminal incidents, the Sixth Amendment 

requirement of a unanimous verdict obliges the judge to instruct the jury that it must reach 

unanimous agreement as to a particular incident in order to find the defendant guilty as 

charged.”) (footnote omitted); Ayers v. State, 844 A.2d 304, 309 (Del. 2004) (“A specific 

unanimity instruction is required . . . if one count encompasses two separate incidents, 

either of which could support a defendant’s conviction for a particular charge.”) (cleaned 

up); State v. Allen, 232 P.3d 861, 864 (Kan. 2010) (“In a multiple acts case, either the State 

must inform the jury which act to rely upon in its deliberations or the court must instruct 

the jury to agree on the specific criminal act.”); Commonwealth v. Palermo, 125 N.E.3d 

733, 742 (Mass. 2019) (holding a special juror unanimity instruction “is required when, on 

a single charged offense, the prosecutor presents evidence of separate, discrete incidents, 

any one of which would suffice by itself to make out the crime charged”) (internal 

quotations omitted). 

9

In that case, this Court considered whether it was unconstitutionally duplicitous 

for a defendant to be charged with a single count of a sexual offense in the second degree 

and a single count of a sexual offense in the third degree based on a series of sexual offenses 

(continued. . .)
11

there are at least four different, but occasionally overlapping, contexts in which such an “e 

pluribus unum approach”10 is permitted: 

(1) when the acts are committed as part of a single incident or transaction; 

(2) when they are simply descriptive of a single offense; (3) when they are 

committed at different times but in a continuing course of conduct with a 

single objective; and (4) when a single offense may be committed in two or 

more different ways. 

Id. at 11, 752 A.2d at 611. Charging a series of criminal acts that falls into one of these 

categories under a single count will not violate constitutional and statutory prohibitions of 

duplicitous charges. See id., 752 A.2d at 611. 

Petitioner’s Actions as a Single Incident or Transaction11

The central disagreement in this case is whether the sequence of events, 

commencing with Petitioner allegedly “brandishing” the rifle in the Robins’ attic and 

(. . . continued)

committed at different times over an extended period of time on the same victim. Cooksey,

359 Md. at 3, 752 A.2d at 607. We found that those charges were facially duplicitous, as 

a second- or third-degree sexual offense is a “single-act” crime that could not encompass 

in one count various distinct incidents occurring over a prolonged period of time. Id. at 23, 

752 A.2d at 618. This Court went on to find that the charges of sexual child abuse under

Maryland Code, Article 27, § 35C, repealed by Acts 2002, c. 26, § 1, eff. Oct. 1, 2002, 

based on the same conduct were not unconstitutionally duplicitous, as “abuse” under the 

statutory definition could be committed either through a single act or a continuing course 

of conduct consisting of multiple acts. Id. at 23–24, 752 A.2d at 618. 

10 The phrase “e pluribus unum,” meaning “out of many, one” was used in Cooksey 

to describe circumstances in which separate criminal acts may combine to create a single 

punishable offense. 359 Md. at 11, 752 A.2d at 611; see also e pluribus unum, MERRIAMWEBSTER, https://perma.cc/9N45-25PN (last visited Nov. 30, 2021). 

11 The Dissent argues that Petitioner’s constitutional duplicity challenge is not 

preserved for appellate review for a myriad of reasons. See Johnson v. State, No. 11 Sept. 

(continued. . .)
12

concluding with the struggle over the handgun and the shooting of Ms. Robin’s hand,

constitutes a “single incident or transaction” as discussed in Cooksey, 359 Md. at 11, 752 

(. . . continued)

Term, 2021, slip op. at 19–38 (Gould, J., dissenting). Maryland Rule 8-131(b)(1) provides 

that:

Prior Appellate Decision. Unless otherwise provided by the order granting 

the writ of certiorari, in reviewing a decision rendered by the Court of Special 

Appeals or by a circuit court acting in an appellate capacity, the Court of 

Appeals ordinarily will consider only an issue that has been raised in the 

petition for certiorari or any cross-petition and that has been preserved for 

review by the Court of Appeals. Whenever an issue raised in a petition for 

certiorari or a cross-petition involves, either expressly or implicitly, the 

assertion that the trial court committed error, the Court of Appeals may 

consider whether the error was harmless or non-prejudicial even though the 

matter of harm or prejudice was not raised in the petition or in a crosspetition.

Here, neither the State’s brief to this Court, nor its brief to the Court of Special Appeals 

alleged that Petitioner’s constitutional duplicity argument was not preserved for appellate 

review. See Johnson, 2021 WL 408845, at *1 n.4. We are therefore not required to 

consider the issue under Md. Rule 8-131(b)(1). 

The Dissent nonetheless argues that we should sua sponte exercise our discretion to 

consider the preservation issue at this late stage and reject Petitioner’s constitutional claim 

on those grounds alone. Johnson, slip op. at 35–38 (Gould, J., dissenting). We do not 

agree. This Court has stated that “except in most extraordinary circumstances, we will 

consider on an appeal resulting from a grant of a writ of certiorari only those questions 

raised in the petition and matters relevant to those questions[.]” Walston v. Sun Cab Co., 

267 Md. 559, 569, 298 A.2d 391, 397 (1973). We have declined to consider even “errors 

of Constitutional dimension” where a party fails to preserve the issue for appeal. See 

Robinson v. State, 410 Md. 91, 103, 976 A.2d 1072, 1079 (2009). We are much less 

compelled to exercise our discretion to consider an argument that would prevent Petitioner 

from asserting a constitutional right, where such an argument has never been advanced by 

the State. We do not agree with the Dissent that defendants will have a tactical advantage 

as a result of our opinion. See Johnson, slip op. at 36–38 (Gould, J., dissenting). We are 

not dismissing the obligation of defendants to preserve a duplicity claim at trial. Rather, 

we are declining to comment on the merits of Petitioner’s failure to preserve his duplicity 

claim at trial because the State never made an argument on such grounds either before this 

Court or the Court of Special Appeals. Neither do we agree with the Dissent that the 

substance of our rule on duplicitous charges, set forth below, should prevent us from 

deciding the duplicity issue without considering the preservation of the argument. See id. 
13

A.2d at 611. See Johnson, 2021 WL 408845, at *2–3. The Court of Special Appeals found 

that it was, reasoning that “[a]ll of [Petitioner’s] conduct while in the Robin home were

[sic] in furtherance of the burglary[]” and that the whole of his confrontation with Ms. 

Robin “occurred within a short span of time and in a somewhat confining space[.]” Id. at 

*3. We do not agree that this was a sufficient basis for determining whether Petitioner’s 

two encounters with Ms. Robin constituted a “single incident or transaction.” Cf. Bussie 

v. State, 115 Md. App. 324, 335, 693 A.2d 49, 54 (1997) (maintaining “that mere physical 

closeness and chronological syncopation of criminal activity are not alone sufficient to 

render evidence of other crimes mutually admissible based upon ‘same transaction’

relevance”). 

In Cooksey, we cited to State v. Warren, as an example of a circumstance where 

multiple criminal acts could be considered a “single incident or transaction.” 359 Md. at 

11–12, 752 A.2d at 611. Warren involved a defendant charged in a single count with 

stealing various sums of money belonging to several different owners, at the same time. 

77 Md. at 121, 26 A. at 500. This Court held that “the stealing of several articles at the 

same time, whether belonging to the same person or to several persons, constituted but one 

offense. It is but one offense because the act is one continuous act,––the same 

transaction[,]” and therefore concluded that the value of the stolen property could be 

aggregated to determine whether the offense constituted grand or petit larceny. Id. at 122–

23, 26 A. at 501. In Stoddard v. State, this Court explained that it was dispositive for the 

“single transaction” theory that the offenses in Warren were committed “at the same time.” 
14

395 Md. 653, 670, 911 A.2d 1245, 1254 (2006) (summarizing the discussion of Warren in 

Cooksey, 359 Md. at 11, 752 A.2d at 611). Unlike the theft at issue in Warren, some 

crimes, including ordinary assault, “tend to be committed in a single continuous episode 

rather than in a series of individually chargeable acts.” Owens v. United States, 497 A.2d 

1086, 1096 (D.C. 1985). “The fact that a criminal episode of assault involves several blows 

or wounds, and different methods of administration, does not convert it into a case of 

multiple crimes . . . .” Id. (quoting Smith v. United States, 418 F.2d 1120, 1121, cert. denied, 

396 U.S. 936, 90 S.Ct. 280, 24 L.Ed.2d 235 (1969)).

A. The Standard for Determining a Single Incident or Transaction

This Court has yet to outline a guiding standard for trial courts in determining

whether a course of conduct involving separate criminal acts may be considered a singular 

incident or transaction, in order to satisfy the constitutional requirement of juror unanimity. 

As discussed above, underlying this Court’s prohibition on duplicitous charges are

concerns of being unable to discern from a guilty verdict rendered on a duplicitous count

whether the jury unanimously found guilt as to any of particular offense contained in the 

count. See Cooksey, 359 Md. at 9–10, 752 A.2d at 610. As such, any inquiry into whether 

a series of criminal acts underlying a single charged crime may be considered a “single 

incident or transaction,” id. at 11, 752 A.2d at 611, must center on whether a juror could 

reasonably perceive separate criminal incidents underlying the singular charge and base 

their convictions on such different underlying incidents. In circumstances where a charge 

is not facially duplicitous but becomes duplicitous based on evidence of multiple distinct
15

incidents presented at trial to prove a single charged count, we agree with our sister states12

that the prosecutor should be required to elect between the incidents, or the jury should be 

provided with a special instruction that it must unanimously agree as to which distinct 

criminal incident underlies its decision to convict.13 

The District of Columbia Court of Appeals applied a similar standard in Hagood v. 

United States, 93 A.3d 210 (D.C. 2014), to facts somewhat analogous to those at issue here.

That case involved two defendants who were tried for attempting to break into the same 

apartment twice while armed within a span of ten minutes but were each charged with only 

a single count of first-degree burglary and assault with a deadly weapon. Id. at 214–15. 

The court found that, “[i]n determining whether a special unanimity instruction was 

required, we need only determine that it was possible, based on the evidence, for the jury 

to reasonably perceive separate incidents and then base [its] convictions on different factual 

predicates.” Id. at 220–21. In making this determination, it outlined a list of factors to 

12 See supra note 8. 

13 In Cooksey, this Court rejected the State’s suggestion of resolving issues posed 

by facially duplicitous pleadings by requiring the State to elect between incidents at the 

end of trial or giving the jury a special unanimity instruction. 359 Md. at 26–27, 752 A.2d 

at 619–20. This Court correctly determined that allowing a trial to proceed on a duplicitous 

count until its conclusion would be an inefficient and ineffective method of addressing the 

issues posed by facially duplicitous pleadings, which can be identified and addressed 

before a trial commences. Id., 752 A.2d at 619–20. Ideally, of course, the issue will be 

avoided by a prosecutor charging multiple counts where there is evidence of multiple 

distinct incidents that could meet the definition of a crime. However, in circumstances 

where duplicity concerns arise only as evidence is presented and arguments are made at 

trial, the solutions of the State electing between the incidents or giving the jury a special 

unanimity instruction satisfy constitutional unanimity requirements without the need for a 

new trial. 
16

consider when determining whether the actions underlying a criminal charge are factually 

distinct, including:

(1) when the acts have occurred at different times and were separated by 

intervening events, (2) when they occurred in different places, (3) when the 

defendant has reached a fork in the road and has decided to invade a different 

interest, or (4) when the first act has come to an end and the next act is 

motivated by a fresh impulse.

Id. at 218 (internal quotations omitted) (quoting Gray v. United States, 544 A.2d 1255, 

1258 (D.C. 1988)). The court emphasized that these factors are not dispositive but rather 

“offer guideposts in resolving the central question in determining whether a special 

unanimity instruction was required: whether a reasonable jury ‘must have’ agreed upon 

one particular set of facts as the factual predicate for the verdict or whether some jurors 

‘could have’ believed one set of facts while other jurors could have believed another.” Id. 

In the same vein as Hagood, Maryland case law grappling with whether certain 

incidents may be considered a part of the “same transaction” in other contexts has focused 

on whether there was either a break in time or a separating intervening event between the 

incidents. See, e.g., Kelley v. State, 402 Md. 745, 757, 939 A.2d 149, 156 (2008) (quoting 

Richardson v. Commonwealth, 489 S.E.2d 697, 700 (Va. App. 1997)) (holding that in 

determining whether the theft of various items can be considered a part of the same larceny 

under the common law “single larceny doctrine,” factors to consider include “the location 

of the items stolen, the lapse of time between their taking, the general and specific intent 

of the thief, the number of owners, and whether intervening events occurred between the 

takings”); Purnell v. State, 375 Md. 678, 698, 827 A.2d 68, 80 (2003) (holding that two 
17

charges of resisting arrest violated double jeopardy because all the criminal activity 

occurred in the same place and time and “there was no break, for any appreciable time, in 

the sequence of events, which could categorize the counts charged as separate and distinct 

acts”); Smith v. State, 232 Md. App. 583, 600, 158 A.3d 1154, 1164 (2017) (finding that 

evidence of the defendant spitting was admissible to support the charge of threatening a 

state official because the spitting and oral threats occurred in the same location, in the same 

half hour interview, and there were no intervening events separating the two incidents); 

Washington v. State, 200 Md. App. 641, 653, 28 A.3d 164, 171 (2011) (finding that, for 

double jeopardy purposes, the fleeing or eluding police charges that began in a car chase 

and ended in a foot chase were based on one “act or transaction,” as there “was no lapse in 

time in which [the officer] ceased trying to apprehend the appellant and the appellant 

ceased trying to get away, only to have the attempt to stop and attempt to get away resume 

later”). As such, we conclude that the Hagood factors, with a particular focus on a lapse 

in time and intervening events between incidents, may be helpful in determining whether 

a juror might perceive a series of acts underlying a criminal charge as distinct incidents. 

Although we conclude that the four Hagood factors are helpful, the factors are not 

dispositive, to our inquiry. 93 A.3d at 218–19. In determining whether a reasonable juror 

might perceive incidents as distinct, is it also helpful to consider whether the jury was 

tasked with resolving different factual disputes pertaining to the incidents. This 

methodology was utilized by the Arizona Court of Appeals in State v. Klokic in determining

that a defendant’s actions of twice pointing a gun in a threatening manner during a single 
18

road rage incident should have been considered two separate assaults. 196 P.3d 844, 850 

(Ariz. Ct. App. 2008). The court reasoned the defendant provided different defenses as to 

each alleged assault, and thus “there [was] a distinct possibility that the jury was not 

unanimous as to the act or acts that gave rise to Klokic’s criminal liability.”

14

 Id. at 850–

51. 

Finally, we must consider whether the State invited the jury to perceive the incidents 

as separate. The likelihood that a reasonable juror will perceive multiple incidents

underlying a single charged count is enhanced if the prosecutor encourages them to 

perceive them as distinct. Many of our sister states have come to the same conclusion. The 

New Mexico Supreme Court in State v. Consaul, required a special jury instruction on 

unanimity where the “prosecutor invited the jury to convict [the defendant] of child abuse 

whether or not the jury agreed on what criminal act [he] actually committed.” 332 P.3d 

850, 855 (N.M. 2014). The court reasoned that “[j]urors should not be left free, let alone 

encouraged by the prosecutor, each to go his or her own way when it comes to determining 

what criminal conduct—if more than one act is alleged—caused the child’s harm. The jury 

14 Although Klokic involved distinct affirmative defenses, its reasoning was not so 

limited. It relied in part on the Arizona Supreme Court decision in State v. Davis, which 

found the inclusion of two incidents of sexual assault under the same count to be 

duplicitous because the defendant had an alibi for one incident and offered evidence that 

the victim had sexual contact with a different individual for the other incident. Id. at 849 

(summarizing State v. Davis, 79 P.3d 64, 76 (2003) (en banc)); id. at 851 (“Thus, as in 

Davis, although some jurors might have dismissed Klokic’s claims across the board, it is 

entirely possible that different jurors believed different facts with respect to each of the 

acts.”). 
19

needs to agree unanimously on what conduct caused harm to the child.” Id. at 855. 

Similarly, the California Supreme Court found in People v. Diedrich that although a charge 

of bribery could logically take place over a long period of time, a special unanimity 

instruction was required because the prosecutor argued to the jury that the “crime [was] 

completed” after the first of two incidents evidencing bribery. 643 P.2d 971, 980 (Cal. 

1982).

15

B. Application to this Case

Applying the standard discussed above to the facts of this case, we conclude that the 

jury could have reasonably perceived two distinct assaults and two distinct uses of a firearm 

in the commission of a crime of violence from the evidence presented and arguments made 

in Petitioner’s trial. Although the two incidents were separated by only a matter of minutes, 

there were intervening events between the alleged assault with the rifle at the top of the 

stairs and the alleged assault with the handgun at the bottom of the stairs. Ms. Robin ran 

downstairs, called 911, retrieved her handgun from a lockbox, loaded the gun with bullets 

15 See also Hagood, 93 A.3d at 220 (“From this evidence of two confrontations and 

the government’s characterization during closing arguments of appellants’ actions as ‘two 

burglaries’ and ‘two shootings,’ the jury could reasonably have perceived two factually 

distinct burglaries and assaults.”); State v. White Face, 857 N.W.2d 387, 395–96 (S.D. 

2014) (holding that because “the State invited the jury to convict on either incident” of 

child abuse, it could not “be reasonably certain that White Face was found guilty by a 

unanimous jury”); State v. Cordeiro, 56 P.3d 692, 709 (Haw. 2002) (holding that a special 

unanimity instruction was required because, among other things, the prosecutor 

“represented to the jury that only a single offense was committed but that either act could 

support a guilty verdict as to first degree robbery[]”); Perley v. State, 947 So. 2d 672, 674 

(Fla. Dist. Ct. App. 2007) (“By allowing the State to tell the jury it could convict Perley 

for either instance of escape, the trial court compromised the jury’s ability to render a 

unanimous verdict.”). 
20

located in a different location from the lockbox, and returned to the bottom of the stairs. 

These intervening events were explicitly emphasized by the State through the testimony of 

Ms. Robin and in the prosecutor’s closing arguments. In her testimony at trial, Ms. Robin 

recounted the intervening events between the two incidents, stating:

. . . I see [Petitioner] still somehow walking down -- in this whole thing, he 

has not fled. I have time to go down the stairs. Get into my bedroom. Into 

my closet. Open the lockbox. Get my gun. Get the speed loader. Load the 

gun. Close the gun. Get back to the door and the man is still at the top of 

the stairs. 

So at this point, I’m totally weirded out. I mean, at no point has this guy tried 

to bolt. He hasn’t -- it was really weird that he just was sauntering down my 

stairs. 

The State reiterated this point in its closing arguments, stating: 

You can hear [Ms. Robin’s] description of having to go, you know into the 

other room, into her bedroom. Into the wall safe. Open the wall safe. Get 

the gun out, and then get the ammunition from another place, close by but a 

different place. It takes times [sic] to do all those things. And to call 911 at 

the same time.

What does [Petitioner] do[?] He sticks around. He gets his backpack. . . . 

what does he do while she’s doing those things downstairs, instead of run out 

of the home, get out of there as quick as possible[?] Remember the language 

that she used. I think the word was “sauntering” when she came back and 

she saw him coming back down the steps. He’s still trying to make his crime 

succeed. 

(Emphasis added).

This emphasis on Petitioner’s affirmative decision to “stick[] around” can also be 

categorized as a “fork in the road” moment where Petitioner decided to “invade a different 

interest[]” pursuant to the third Hagood factor. See Hagood, 93 A.3d at 218. While Ms. 

Robin was in her bedroom, Petitioner had a clear opportunity to leave, but instead 
21

affirmatively chose to stay in the exact same place she had left him. It was not until Ms. 

Robin returned to the stairs with her gun minutes later and informed Petitioner that the 

police were on their way, that he attempted to leave the attic. 

For similar reasons, when Ms. Robin ran down the stairs after her initial encounter 

with Petitioner, it is clear that “the first act ha[d] come to an end and the next act [was] 

motivated by a fresh impulse[]” pursuant to the fourth Hagood factor. Id. at 218. When 

Ms. Robin ran down the stairs and into her bedroom, the alleged threat of immediate bodily 

harm as a result of Petitioner brandishing the rifle and telling her that it was loaded had 

come to an end. The incident at the bottom of the stairs also appeared to be motivated by 

a fresh impulse from the Petitioner. Rather than attempting to continue the burglary, as the 

State argued he was attempting to do in the attic while Ms. Robin was downstairs, when 

Petitioner struggled with Ms. Robin to get out of the attic stairway door, it appeared that 

he was trying to leave the house before the police arrived. Thus, Petitioner was motivated 

by a “fresh impulse[]” in his encounter with Ms. Robin at the bottom of the stairs. See id.

at 218. This is further evidenced by fact that Petitioner abandoned the backpack filled with 

the Robin’s stolen items during his struggle at the bottom of the stairs. 

The distinction between the incident at the top of the stairs with the rifle and the 

incident at the bottom of the stairs with the handgun comes into even greater relief when 

we focus on the charge of a use of a firearm in the commission of a crime of violence. The 

two incidents involved the use of two separate firearms at two distinct times. Petitioner 

not even aware of the existence of Ms. Robin’s handgun at the time he used the rifle to 
22

frighten Ms. Robin. Petitioner’s impulse to shoot Ms. Robin with the handgun did not arise 

until the handgun was introduced by Ms. Robin – after Petitioner had already used the rifle 

to frighten Ms. Robin at the top of the stairs. This clear demarcation between the uses of 

the two firearms, in turn, aids in distinguishing between the two assaults, both of which 

were premised on Petitioner’s use of the firearms. 

The parties dispute whether the incident at the top of the stairs with the rifle and the 

incident at the bottom of the stairs with the handgun should be characterized as occurring 

in the same place pursuant to the second Hagood factor. The State argues that these two 

incidents did occur in the same place, namely, the stairs to the attic, while Petitioner 

describes them as occurring in two different places: in the attic at the top of the attic steps 

and outside the door at the bottom of the steps. For purposes of our analysis, it is not 

important whether the incidents are described as occurring in the same place or different 

places. More critical is the separation of the two incidents as discussed above, namely, the 

break in the action and intervening events that created a “fork in the road” during which 

Petitioner made an affirmative decision to “stick[] around.” See id. at 218. 

Further bolstering our determination that a jury could have reasonably perceived the 

incidents as separate is the fact that the jury was tasked in this case with resolving different 

factual disputes pertaining to each incident. The State alleged in support of its assault and 

use of a firearm in the commission of a crime of violence charges that during the episode 

at the top of the attic stairs, Petitioner brandished the rifle to Ms. Robin and told her “this 

thing is loaded[.]” Defense counsel disputed this allegation, claiming that Petitioner was 
23

holding the rifle, not in an attempt to threaten Ms. Robin, but in an attempt to steal it, 

focusing on the fact that Ms. Robin never testified that Petitioner pointed the rifle at her,

but rather that he held it upright and titled it backwards. Defense counsel also disputed 

whether Petitioner told Ms. Robin that the rifle was loaded or cycled its lever, pointing to 

her failure to tell police who interviewed her shortly after about those details of the incident.

Pertaining to the incident at the bottom of the stairs, defense counsel disputed the assault 

and use of a firearm in the commission of a crime of violence charges by arguing that 

Petitioner was simply trying to leave the house, grabbed the handgun to prevent Ms. Robin 

from shooting him, and that the gun went off accidently during their struggle. It is possible 

that some jurors believed defense counsel’s version of the incident with the rifle, and it is 

possible that other jurors believed defense counsel’s version of the incident with the 

handgun. We have no way of knowing, based on its guilty verdict, whether a unanimous 

jury found Petitioner guilty of second-degree assault or use of a firearm in the commission 

of a crime of violence for either incident. 

Finally, this Court finds it conceivable that a reasonable juror could have believed 

there to be two distinct incidents underlying the assault and use of a firearm in the 

commission of a crime of violence charges because the State encouraged the jury to view 

the incidents as separate at trial. During closing arguments, the State told the jury that 

Petitioner committed a first-degree assault “initially [by] pulling the rifle on [Ms. Robin], 

and then also [in] the struggle over the gun and shooting her in the hand.” Again, in closing 

rebuttal arguments, the State urged the jury to find Petitioner “[g]uilty of the first-degree 
24

assault of Ms. Robin, not only up in the attic when he arms himself with their rifle, but 

when we move downstairs to the struggle and him firing that handgun. Firing that bullet 

through her hand.” (Emphasis added). In a similar way, the State bifurcated the incidents 

underlying the use of a firearm in the commission of a crime of violence charge, stating 

that Petitioner’s use of a firearm during the burglary included “initially [the] rifle he 

grabbed and also the handgun.” It similarly went on to state in its closing rebuttal 

arguments that the jury should find Petitioner “[g]uilty of using that rifle upstairs to try and 

complete the burglary[] [and] [g]uilty of using that handgun during the struggle.” In 

addition, the State’s emphasis on the break between the incidents and the time period when 

Ms. Robin went downstairs, called 911, and retrieved her gun, similarly invited the jury to 

perceive the incidents as separate. 

In applying this standard, we reiterate that the course of events should not be viewed 

from the prospective of Ms. Robin or Petitioner, but from the prospective of a reasonable 

juror. Here, the State’s emphasis at trial on the intervening events between the incidents 

and Petitioner’s affirmative decision to “stick around” during that time, as well as State’s 

presentation of the incidents as separate in its closing, make it particularly likely that a 

reasonable juror could perceive two separate incidents instead of one. Tasking the jury

with resolving different factual disputes pertaining to each of the incidents further 

reinforced the likelihood that it could view them as separate. This is true even though, as 

the Dissent points out, it is possible that neither Ms. Robin nor the Petitioner actually 

viewed any “fork in the road” or differing motivation between their two encounters. See 
25

id. at 218 (“[O]ur inquiry focuses on the jury’s perception of the evidence presented at trial. 

It does not focus on the defendant’s choice of actions at the time of the alleged crime.”)

(Emphasis omitted). 

Petitioner’s case is comparable to Hagood, where the District of Columbia Court of 

Appeals determined a single charge of attempted armed burglary and assault with a 

dangerous weapon to be duplicitous. Id. at 220–21. In that case, two armed men attempted 

to break into an apartment, but its occupants were able to successfully push them out. Id. 

at 214–15. The men briefly went outside, but a few minutes later they entered the same 

apartment but again were quickly pushed out by its occupants. Id. at 215. Shots were fired 

during both of these encounters. Id. The court found that a special unanimity instruction 

was necessary for the charges of attempted armed burglary and assault with a dangerous 

weapon, reasoning, in part, that

[w]hile it is true that both incidents occurred at the same apartment, involved 

the same parties, and took place within a relatively short time—

approximately ten minutes—of each other, these facts alone are not 

determinative. It is significant that in this case, when the trial is viewed as a 

whole, the jury was presented with evidence of what the government referred 

to in closing as “two burglaries” and “two shootings[.]” 

Id. at 219–20 (footnote and internal citations omitted). The court emphasized that “a single 

purpose and a single criminal action are not necessarily the same thing,” and pointed out 

that the jury in that case was tasked with resolving different factual disputes pertaining to 

two incidents, making it such that a jury could “reasonably perceive separate incidents and 

then base [its] convictions on different factual predicates.” Id. at 221. The same is true in 
26

Petitioner’s case, as the State emphasized the separation between two incidents at trial, and 

the jury was tasked with resolving different factual disputes as to each incident. 

We do not agree with the Dissent’s assertion that Petitioner’s case is more akin to 

Guevara v. United States, 77 A.3d 412 (D.C. 2013). Johnson, slip op. at 12–14 (Gould, J., 

dissenting). In that case, the District of Columbia Court of Appeals found that a special 

unanimity instruction was not required where three separate threats to a victim’s life were

made during the course of his hour-long abduction. Guevara, 77 A.3d at 418–19. The 

defense never requested a special unanimity instruction at trial, and the court found that the 

trial court did not commit plain error by failing to give such an instruction. Id. at 419–20. 

In addition to considering that all of the threats occurred during the abduction and that they 

were communicated in the same manner, to the same person, and with the same intent, the 

court pointed to the fact that the jury was tasked with resolving the same factual dispute as 

to each threat, namely, whether the victim had correctly identified the defendant as one of

the perpetrators.16 Id. at 420–21. Thus, “if the jury rejected [defendant’s] defense as to 

one of the threats, it necessarily rejected it as to all three threats[.]” Id. at 421. As discussed 

above, the same is not true in Petitioner’s case, as some jurors could have easily believed 

defense counsel’s theory that Petitioner was not threatening Ms. Robin with the rifle in the 

16 Although we characterize this consideration as resolving a factual dispute, the 

District of Columbia Court of Appeals refers to this as a consideration of whether the 

incidents were “legally separate,” meaning that different legal defenses could applied to 

each. Id. at 421. It is unimportant for our purposes how exactly this consideration is 

framed. 
27

attic but stealing it instead, and not believed its theory that the handgun was accidently 

discharged into her hand, or vice versa. We reiterate that no single factor is dispositive, 

and the central inquiry remains whether jurors could have reasonably perceived the 

incidents as separate, such that some of them could have based their conviction on an 

entirely different set of underlying facts than other jurors.17 

Considering the foregoing, we conclude that the jury could have reasonably

perceived two separate incidents underlying the second-degree assault and use of a firearm 

in the commission of a crime of violence charges. As such, the incidents cannot be 

categorized as a “single incident or transaction[,]” such that the State’s decision to charge 

only a single count of second-degree assault and use of a firearm in the commission of a 

crime of violence could be considered not unconstitutionally duplicitous. See Cooksey 359 

Md. at 11, 752 A.2d at 611.

17 Contrary to the Dissent’s assertions, we cannot deduce, based on the jury’s 

acquittal of Petitioner’s first-degree assault charge, which factual incident underlies the 

jury’s conviction for second-degree assault and use of a firearm in the commission of a 

crime of violence. See Johnson, slip op. at 3–5 (Gould, J., dissenting). This Court has 

expressly permitted factually inconsistent verdicts, which are “illogical merely[,]” 

although not legally inconsistent. McNeal v. State, 426 Md. 455, 466, 44 A.3d 982, 988 

(2012). This is because we have recognized that “[j]uries may engage in internal 

negotiations, compromise, or even make mistakes; however, we cannot divine whether the 

inconsistency is the product of lenity. We will not risk disturbing a verdict for the wrong 

reasons.” Id. at 472, 44 A.3d at 992. Because we permit a jury’s verdict to be factually 

inconsistent, or in other words, illogical, we cannot not make logical deductions about the 

facts that must underly one jury verdict based on the jury’s verdict on another charge. 
28

Petitioner’s Actions as a Continuing Course of Conduct with a Single Objective

Although Petitioner’s actions cannot be categorized as a “single incident or 

transaction[,]” they could still satisfy this Court’s rule against duplicitous charges if they 

can be categorized as a “continuing course of conduct with a single objective[.]” Cooksey,

359 Md. at 11, 752 A.2d at 611. Although the Court of Special Appeals’ majority

determined that Petitioner’s actions constituted a single ongoing incident, it also relied on 

the following quote from Mohler, 120 Md. at 327–28, 87 A. at 671–72: 

If the acts alleged are of the same nature and so connected that they form one 

criminal transaction, they may be joined in one count, although separately 

considered they are distinct offenses. If they can be construed as stages in 

one transaction and are not inherently repugnant, the count will not be bad 

for duplicity. 

Johnson, 2021 WL 408845, at *3. Mohler and this exact quote were used by this Court in 

Cooksey to describe the “continuing course of conduct[]” exception to duplicitious charges. 

359 Md. at 12–13, 752 A.2d at 612. Thus, in-as-much as that theory was relied on by the 

Court of Special Appeals in reaching its conclusion, this Court will consider whether the 

theory is applicable to Petitioner’s case. 

Mohler involved a defendant charged with a single count of malfeasance in office 

based on allegations that he had, by virtue of his office, unlawfully and corruptly accused 

a man of selling goods without a license, corruptly obtained a warrant and arrested that 

man, coerced him to pay money to a justice of the peace without a trial, and then received 

part of that sum from the justice of the peace. 120 Md. at 326–27, 87 A. at 671. The court 
29

concluded that the single charge of malfeasance in office was not unlawfully duplicitous, 

reasoning: 

The particular misconduct with which the appellant was charged was that he 

corruptly obtained money under cover of his office. This was clearly the 

charge he was called upon to meet. The other averments in the count, 

although they may have charged distinct and separate offenses, were only 

recitals of the means taken by him to accomplish the end. Considered as a 

whole, they constitute but one transaction, and are the steps employed from 

the beginning to the end. We are therefore of the opinion that the count was 

not bad for duplicity.

120 Md. at 328, 87 A. at 672. 

We conclude that the circumstances and rationale behind Mohler are inapplicable 

to Petitioner’s case. Unlike in Mohler, Petitioner’s actions at the top of the stairs with the 

rifle and at the bottom of the stairs with the handgun cannot be considered merely steps 

employed from the beginning to the end of a single transaction. It is not clear from the 

record that the two incidents were designed to accomplish a single objective. At trial, the 

State characterized Petitioner’s objective in brandishing the rifle at the top of the stairs as 

continuing his burglary. Such an interpretation is bolstered by the fact that Petitioner did 

not immediately flee when given the opportunity while Ms. Robin ran downstairs to get 

her gun. In contrast, Petitioner’s objective during the incident at the bottom of the stairs, 

culminating in the shooting of Ms. Robin’s hand, could fairly be characterized as escape.

By the time the shooting occurred, Petitioner had dropped his backpack filled with stolen 

items in order to get through the door. He was no longer, as the State put it, trying “to 

make his crime succeed[,]” but rather he was trying to get out of the house before the police 

arrived. Thus, unlike in Mohler, the episode with the rifle and the episode with the handgun 
30

were not merely the steps from beginning to end of a course of conduct with the same

objective.

18

 Petitioner’s actions therefore cannot be characterized as a “continuing course 

of conduct with a single objective[,]” so as to prevent this Court’s finding of unlawfully 

duplicitous charges. See Cooksey, 359 Md. at 11, 752 A.2d at 611.

CONCLUSION

Based on the record before us, a reasonable jury could have perceived two separate 

incidents underlying Petitioner’s assault and use of a firearm in the commission of a crime 

of violence charges that were not a part of a continuing course of conduct with a single 

objective. As such, we cannot know whether the guilty verdicts as to those charges were

based on unanimous findings of guilt with respect to either incident. Petitioner’s 

convictions therefore do not meet this Court’s constitutional standards for unanimity and 

must be vacated. See MD. CONST., Decl. of Rts. art. 21; U.S. CONST. amend. VI. 

JUDGMENT OF THE COURT OF 

SPECIAL APPEALS IS REVERSED

WITH INSTRUCTIONS TO

REMAND FOR FURTHER 

PROCEEDINGS CONSISTENT 

WITH THIS OPINION. COSTS TO 

BE PAID BY RESPONDENT.

18 The fact that these two assaults did not have a single objective is further reflected 

in the conflict between the Court of Special Appeals’ characterization of Petitioner’s

purpose, and the State’s characterization in its brief to this Court. The Court of Special 

Appeals stated that both assaults were “in furtherance of the burglary.” Johnson, 2021 WL 

408845, at *3. In contrast, the State claimed that the single impulse motivating Petitioner 

in both encounters was escape: “[t]he whole time, Johnson was trying to escape from the 

house.” 
IN THE COURT OF APPEALS

OF MARYLAND

No. 11

September Term, 2021

______________________________________

EVERETTE WILLIAM JOHNSON

v.

STATE OF MARYLAND

______________________________________

Getty, C.J.

*McDonald

Watts

Hotten

Booth

Biran

Gould,

 

JJ.

______________________________________

Dissenting Opinion by Gould, J.,

which Getty, C.J. and McDonald, J., join.

______________________________________

Filed: March 14, 2022

*McDonald, J., now retired, participated in the 

hearing and conference of this case while an 

active member of this Court; after being recalled 

pursuant to Maryland Constitution, Article IV, 

Section 3A, he also participated in the decision 

and adoption of this opinion. 

Circuit Court for Baltimore County

Case No. 03-K-18-003634

Argued: October 4, 2021
Mr. Johnson proposes “a modest rule,” namely, “[w]hen a defendant is charged with 

a single count of an offense but evidence of multiple incidents is presented to the jury, the 

right to a unanimous verdict requires an election by the State or an instruction that a guilty 

verdict requires unanimous agreement as to which incident supports conviction.” The 

Majority accepts his invitation, holding that:

[i]n circumstances where a charge is not facially duplicitous, but becomes 

duplicitous based on evidence of multiple distinct incidents presented at trial 

to prove a single charged count, . . . the prosecutor should be required to elect 

between the incidents, or the jury should be provided with a special 

instruction that they must unanimously agree as to which distinct criminal 

incident underlies their decision to convict.

 

My disagreement lies not with the Majority’s articulation of the rule, but rather in

its application of the rule to this case. As a substantive matter, this rule should not apply 

here. From the jury verdict, we know that the duplicity problem that concerns the Majority

did not, in fact, come to pass. Moreover, on the core issue, I believe the jury was presented 

with evidence of a single offense of assault and use of a firearm, not separate offenses. 

From a procedural standpoint, for the reasons explained below, even if the evidence 

showed multiple incidents of assault and use of a firearm,1 Mr. Johnson should not be 

entitled to benefit from the Majority’s holding. From the substance and timing of the 

specific objection raised at trial, as well as the jury’s verdict on each of the charges, the 

conclusion that Mr. Johnson waived the errors he claims on appeal is, in my view, 

inescapable.

1

I will use the phrase “use of a firearm” as shorthand for “use of firearm in the 

commission of a crime of violence.”
2

I.

THE FACTS OF THIS CASE DO NOT

GIVE RISE TO A DUPLICITY PROBLEM

According to the Majority, during Mr. Johnson’s singular burglary event at the 

Robins’ home, the jury could have “perceived two distinct assaults and two distinct uses 

of a firearm in the commission of a crime of violence from the evidence presented and 

arguments made in Petitioner’s trial.” Maj. op. at 19. The Majority explains that “although 

the two incidents were separated by only a matter of minutes, there were intervening events 

between the alleged assault with the rifle at the top of the stairs and the alleged assault with 

the handgun at the bottom of the stairs.” Id. I see three fatal flaws in the Majority’s 

reasoning. 

First, it does not appear that the Majority has fully taken into consideration the 

ramifications of the jury’s actual verdicts. Put simply, we know that the jury unanimously 

acquitted Mr. Johnson of first-degree assault as to both incidents. The Majority’s 

unanimity concern is, therefore, unfounded. Second, in my view, the so-called “intervening 

events” did not present Mr. Johnson with a fork in the road or time for a new impulse, as 

the Majority contends. Rather, this was one continuing encounter without a single break 

in the action. Third, the Majority’s conclusion is not, in my view, supported by the relevant 

caselaw. I will address each issue in turn.

A.

The Majority’s fundamental concern is that the jury could have perceived the 

“alleged assault with the rifle at the top of the stairs and the alleged assault with the 
3

handgun at the bottom of the stairs” as separate and distinct incidents, thus creating the risk 

of a conviction without unanimity. According to the Majority, “[t]his clear demarcation 

between the uses of the two firearms, in turn, aids in distinguishing between the two 

assaults, both of which were premised on Petitioner’s use of the firearms.” Maj. op. at 22.

But the jury convicted Mr. Johnson of second-degree assault and acquitted him of 

first-degree assault. This means that the jury unanimously concluded that although he did

commit an assault, he didn’t commit the assault with either of the two additional elements 

that elevate second-degree assault to first-degree assault—using a firearm or intending to 

cause serious bodily injury. The jury’s acquittal of Mr. Johnson of first-degree assault 

rendered moot any concern about the theoretical possibility that the jury could have 

perceived separate assaults with separate firearms. 

We can similarly rule out any unanimity concern with respect to the use of a firearm 

conviction. From a factual standpoint, there is no dispute that the handgun was discharged 

during the scuffle at the bottom of the stairs. We also know that the bullet went through 

Ms. Robin’s hand. The only factual issue was whether Mr. Johnson intentionally turned 

the gun on Ms. Robin and pulled the trigger, as Ms. Robin testified, or whether it was an 

accident, as defense counsel argued in closing. That the jury acquitted Mr. Johnson of 

first-degree assault means that the jury was not unanimously convinced that Mr. Johnson 

intended to turn the gun on Ms. Robin and fire it. That means at least one juror thought 

that the discharge of the handgun was unintended, or put another way, an accident. And if 

at least one juror thought the discharge was unintended or an accident, then we can safely 
4

conclude that the jury did not unanimously find that Mr. Johnson used the handgun to 

commit the burglary, which was the predicate crime for the use of a firearm charge.

That leaves the use of the Yellowboy rifle as the sole basis for the use of a firearm 

conviction. One may reasonably question how the use of the rifle could support a 

conviction on the use of a firearm charge but not be enough to convict on the first-degree 

assault charge. In my view, these two seemingly inconsistent results are easily reconciled 

by focusing on the jury instructions for these two charges.

Based on the jury instructions given here, there was an element to the first-degree 

assault charge that was not part of the use of a firearm charge: that the victim was in fact

placed in fear. As explained below, the jury was instructed that brandishing a rifle in the 

commission of a first-degree burglary supported a guilty verdict for the use of a firearm 

charge. But that instruction did not require the jury to find that Ms. Robin was actually

placed in fear. In contrast, one of the elements described in the jury instruction on the 

intent to frighten version of assault was that the victim was, in fact, put in fear of immediate 

physical harm. Thus, if the jury was unanimously convinced that Mr. Johnson used the 

Yellowboy with the intent to put Ms. Robin in fear so that he could complete the burglary 

without getting apprehended, but the jury was not unanimously convinced that his use of 

the Yellowboy did instill fear in Ms. Robin (perhaps because she believed it was 

inoperable), then a guilty verdict on the use of a firearm charge and acquittal on the firstdegree assault charge can coexist.

In sum, the Majority posits the potential for multiple permutations of jury findings 

that could support the assault and use of a firearm charges, leaving us with no basis to 
5

discern if the jury decided the counts unanimously. In my view, based on the evidence 

presented at trial, the jury instructions, and the jury’s actual verdicts, the risk of a nonunanimous verdict as perceived by the Majority ranges from non-existent to de minimis;

thus, any error would be harmless.2

B.

I now turn to the Majority’s determination that a jury could have reasonably viewed 

the incidents with the Yellowboy and the handgun as two unique incidents separated by 

intervening events. The Majority emphasizes two facts in support of this view: (1) the 

incidents were separated by the time it took Ms. Robin to run down the stairs, go into her 

bedroom, open her safe, get her pistol, get the loader from the bedside table, load the 

weapon, all while calling 911; and (2) the fact that Mr. Johnson did not flee the scene 

2 The Majority dismisses this analysis on the basis that factually inconsistent and 

illogical jury verdicts are permitted; therefore, the Majority’s argument goes, we can’t 

“deduce . . . which factual incident underlies the jury’s conviction for second-degree 

assault and use of a firearm in a crime of violence.” See Maj. op. at 27 n.17. For starters, 

the whole point of this analysis is to demonstrate that the jury’s verdicts on the specific 

counts are easily reconciled with the evidence admitted at trial and the jury instructions.

Thus, there is no reason to speculate that the jury did not act rationally here. Moreover, 

this precise type of exercise was conducted by the District of Columbia Court of Appeals 

in Hagood v. United States, on which the Majority relies, when it determined that the 

failure to give a unanimity instruction did not rise to the level of plain error. Hagood v. 

United States, 93 A.3d 210, 222-24 (D.C. 2014) (“[S]ignificantly, in this case we are able 

to discern the factual bases for the jury’s verdicts from the verdicts themselves, without 

engaging in speculation about the jury’s thought process.”). Similarly, in a case cited by 

the court in Hagood, Scarborough v. United States, 522 A.2d 869, 873-75 (D.C. 1987), the 

District of Columbia Court of Appeals found that the trial court’s error in not giving the 

special unanimity instruction was harmless based on its analysis of the jury’s verdict; 

indeed, the court said it was “not permitted to find reversible error when the only basis for 

perceiving the jury’s verdict was not unanimous would be that the jury acted irrationally.” 

Id. at 874. I see no persuasive reason not to engage in the same type of analysis here.
6

during that intervening period. The Majority states that once Ms. Robin ran down the stairs 

to get her gun, the “alleged threat of immediate bodily harm as a result of Petitioner 

brandishing the rifle and telling her that it was loaded had come to an end.” Maj. op. at 21.

The Majority maintains that the “intervening events” provided a “clear opportunity” 

or a “fork in the road” for Mr. Johnson to leave the house, “but instead [he] affirmatively 

chose to stay in the exact same place she had left him.” Id. at 20. The Majority states that 

“when Ms. Robin ran down the stairs after her initial encounter with Petitioner, it is clear 

‘the first act ha[d] come to an end and the next act [was] motivated by a fresh impulse[]’ 

pursuant to the fourth Hagood factor.” Id. at 21 (quoting Hagood, 93 A.3d at 218)). In my 

view, when viewed from the relevant temporal perspective, no reasonable assessment of 

the evidence supports these conclusions. 

Let’s begin with Mr. Johnson’s purpose that day when he entered Ms. Robin’s 

home. Mr. Johnson explained in his custodial interview later that day that he was in the 

car with a friend who put him up to burglarizing some homes in that neighborhood. The 

plan was for Mr. Johnson to go in, steal some small items, and get out. There is no evidence 

that his purpose ever changed during the entire encounter with Ms. Robin. Once Ms. Robin

came home, the evidence suggests that Mr. Johnson’s overriding purpose was to get out of 

the house—the third and final part of his burglary plan. In fact, Mr. Johnson said so during 

his interview—that, after she came home, he just wanted to get out of there. 

The Majority describes the steps Ms. Robin took after the scuffle over the 

Yellowboy rifle in a way that creates the perception of a break in the action and cessation 

of the threat. In my view, the Majority makes the mistake of viewing the events with the 
7

knowledge available only from hindsight. When the events are viewed from both Ms. 

Robin’s and Mr. Johnson’s perspective in real time, I do not believe a jury could reasonably 

find that the burglary incident could be broken down into separate incidents with an 

intervening period in which the threat had ended.

Ms. Robin came home and found an intruder in her attic, brandishing a rifle. Even 

if Mr. Johnson had not brandished the rifle, from the perspective of the home’s occupants,

the presence of an uninvited and unwelcome intruder in the process of a burglary presents 

a continuous threat against the safety of the persons in the home until the intruder has left 

the scene for good.

In any event, we know that Mr. Johnson was holding the rifle and that Ms. Robin 

was aware of that. A rifle in the right hands, even unloaded or inoperable, can be used to 

inflict serious physical injury—no different than a baseball bat or a golf club. During the 

so-called intervening period, Ms. Robin did not and could not have known, in real time as 

the events unfolded, whether the encounter would end without her or her son getting 

attacked by Mr. Johnson.

The recording of Ms. Robin’s 911 call shows just how fast the events unfolded and 

reveals the urgency in Ms. Robin’s voice. Ms. Robin called 911 as she was running down 

the stairs after trying unsuccessfully to take the rifle away from Mr. Johnson. Her first 

words in the recording were: “There is an intruder in my house, I’m at [address], I am 

arming myself.” Beginning just 27 seconds into the call, Ms. Robin can be heard yelling 

to Mr. Johnson: “Do not come downstairs, sir, I am armed and I will absolutely use it. . . .” 

She continued to threaten to shoot him if he came downstairs and then, beginning just 51 
8

seconds into the call, she tells the 911 operator, “I am holding the man in the attic I really 

do not want to shoot anyone.” From that evidence, no reasonable jury could conclude that, 

during that “intervening period,” the threat abated, or that Ms. Robin perceived that the 

threat had abated, or that she would not have tried to stop Mr. Johnson if he had attempted 

to leave the scene.

Viewing the events from Mr. Johnson’s perspective yields the same conclusion. In 

describing the “intervening period” as a fork in the road or an opportunity for Mr. Johnson 

to act on a fresh impulse, the Majority focuses on what we now know happened in that 

brief time, with the benefit of hindsight. But what did Mr. Johnson know during the 27 

seconds that passed from when Ms. Robin called 911 as she was running down the stairs 

until she ordered him to remain upstairs and threatened to shoot him? We know now that 

Ms. Robin’s gun was stored in the closet safe, that it was unloaded, that the bullets were in 

a table next to the bed, and that she had to load the gun. But how could Mr. Johnson have 

known that? Mr. Johnson could only have known that the homeowner was scared, armed,

and threatening to shoot him. Indeed, for all Mr. Johnson knew, Ms. Robin kept a loaded

gun under her pillow and was ready, willing, and able to use it. No reasonable jury would 

find that Mr. Johnson had a basis to perceive any fork in the road or a reasonable 

opportunity to leave the scene without risking being shot by Ms. Robin.

3

 

3 Relying on Hagood, the Majority maintains that we must view the events from the 

perspective of what a reasonable jury would find. I agree, and my analysis does just that. 

But the “fork in the road” and “new impulse” factors discussed in Hagood, and relied upon 

by the Majority, derive from caselaw concerning the merger of sentences, where these 

factors are viewed from the perspective of the defendant. 93 A.3d at 218-19. The court in 
9

The Majority posits that the jury could have concluded that the incidents at the top 

and bottom of the stairs were not “designed to accomplish a single objective,” suggesting 

that Mr. Johnson’s objective could have changed from completing the burglary to getting 

out of the home. Maj. op. at 29. That strikes me as a distinction without a difference. The 

goal was always the same: to get in and get out with as many stolen items as possible. 

Completing the burglary could never have been accomplished without getting out of the 

home. There was no basis for the jury to conclude that his objective ever changed—

particularly the “get out” part of the plan. Indeed, during his custodial interview, Mr. 

Johnson told the detectives that “it all happened so fast I just wanted to get out of there[,]” 

that the incident “unfolded so quickly.” In holding that the jury could have concluded that

the second incident reflected a change in plan, the Majority erred.

C.

The Majority does not point to any case from this or any other jurisdiction that 

resembles the facts of this case. Instead, drawing from Hagood v. United States, 93 A.3d 

210 (D.C. 2014), the Majority provides a non-exhaustive list of factors to determine 

Hagood noted the different perspectives used in the “unanimity and merger analyses,” yet 

acknowledged that applying the “fork in the road” test “may nevertheless be relevant in 

evaluating, from the jury’s perspective, whether it was reasonable for the jury to have 

concluded that the defendant was involved in one continuous incident or distinct incidents.” 

Id. at 219. In other words, looking at the facts from the defendant’s perspective is a useful 

tool in our evaluation of how a reasonable jury could have viewed the evidence. This 

makes sense—how could a reasonable jury conclude that Mr. Johnson made a choice at a 

fork in the road if the evidence, viewed from Mr. Johnson’s perspective, shows that he 

could not have been aware that he was even at a fork in the road? In my view, therefore, 

no reasonable jury could determine whether Mr. Johnson arrived at a “fork in the road” or 

acted on a “fresh impulse” unless it viewed the evidence from Mr. Johnson’s perspective.
10

whether a group of similar acts may be considered a single incident or transaction. Those 

scenarios identified in Hagood are: 

(1) when the “acts have occurred at different times and were separated by 

intervening events,” (2) when they occurred in different places, (3) “when 

the defendant has reached a fork in the road and has decided to invade a 

different interest,” or (4) “when the first act has come to an end and the next 

act is motivated by a fresh impulse.” 

Id. at 218 (quoting Gray v. United States, 544 A.2d 1255, 1257 (D.C. 1988)). 

Hagood involved two separate confrontations between a handful of occupants of an 

apartment and the two defendants who were initially hanging out outside the apartment 

building. Id. at 219-20. Both confrontations took place in the apartment, separated in time 

by about 10 minutes. Id. at 219. In the intervening period, the defendants were again 

outside the apartment building, engaging in no unlawful conduct. Id. at 214-15. After 

some hand gestures between one defendant and one of the occupants who was looking at 

the defendants through a window, the defendants decided to again physically engage the 

occupants in the apartment. Id. at 215. Both incidents involved gunshots. Id. at 219-20. 

The defendants were charged with single counts of various charges including firstdegree burglary while armed and assault with a deadly weapon, among others. Id. at 217. 

Although the events unfolded as two separate incidents, the trial court did not give a special 

unanimity instruction. Id. at 216. On appeal, the District of Columbia Court of Appeals

concluded that a jury could have reasonably viewed the events as separate incidents. Id. at 

219-20. The court framed the issue as “whether we can conclude, upon considering the 

context of the entire trial, that the jury was in ‘substantial agreement as to just what a 

defendant did’ as the factual predicate for the verdict.” Id. at 219. The court was persuaded 
11

that the two incidents involved different conduct by the two defendants, and that there were 

multiple ways in which the jurors could have viewed the two confrontations. The court 

found significant that the government characterized the events as “two burglaries” and 

“two shootings.” Id. at 220. Thus, the court found that it was error for the trial court not 

to have given the jury the unanimity instruction.4 Id. at 221.

This case is unlike Hagood. In Hagood, after the first incident, the defendants and 

the occupants were separated—thus, no longer were the defendants in the apartment 

without permission—and no longer were the defendants engaged in an illegal act. The

intervening period in Hagood marked a clean break from the prior confrontation and 

afforded the defendants an opportunity to cease all contact with the apartment’s occupants. 

In contrast, here, Mr. Johnson was never not engaged in an illegal act during the entire 

incident, and as set forth above, viewing the events in real time, the intervening period did 

not afford Mr. Johnson a fresh opportunity.

A case that the court in Hagood took pains to distinguish—Guevara v. United 

States, 77 A.3d 412 (D.C. 2013)—is instructive. See Hagood, 93 A.3d at 220 n.20. 

Guevara involved a kidnapping that unfolded over the course of about an hour. 77 A.3d 

at 420. The victim was kidnapped by the siblings of his ex-wife. Id. at 415. The two 

defendants were one of the siblings (Demecio) and Demecio’s wife (Angela). Id. It all 

started when one of the siblings demanded that the victim return certain photos. Id. The 

victim returned some of the photos, but the defendants thought he had more, so they drove 

4 Notably, because the defendants had not requested a unanimity instruction, the 

court applied the plain error doctrine and, finding no plain error, affirmed the convictions.
12

the victim to the victim’s brother’s house to get them. Id. After the victim retrieved the 

additional photos, Demecio “seized” the victim and, with the help of one of Demecio’s 

siblings and Angela, forced the victim into a van driven by Angela. Id. Angela made a 

point to get out of the car and slap the victim before he was shoved into the van. Id. 

Once in the van, the victim noticed a man he didn’t recognize. Id. The unknown 

man drew a knife and threatened to kill him. Id. The kidnappers drove the victim around 

for less than an hour, looking for an empty street. Id. During that time, the victim received 

a call on his cell phone, and the unknown man threatened to kill him if he answered it. Id. 

The kidnappers then pulled the van into a wooded area. Id. Demecio and Angela restrained 

the victim as the unknown man stabbed him multiple times. Id. Angela again slapped the 

victim, this time with one hand while restraining him with the other. Id. They carried the 

victim back to the van, drove around some more, and then dumped him on a road in a 

different area. Id. Demecio threatened to kill the victim if the victim told anyone what 

they had done. Id. at 416. 

Post-trial, Angela “filed a motion for judgment of acquittal,” which ultimately led 

to her request for a special unanimity instruction, arguing that the jury heard evidence of 

three separate threats during the entire kidnapping event. Id. at 417-18. The trial court 

denied the request, and the District of Columbia Court of Appeals affirmed. Id. at 418. 

The court noted that a unanimity instruction is required if the events are legally or factually 

separate. Id. at 419. The court identified the same four factors later discussed in Hagood

as the factors for determining whether the events were factually separate. Id.
13

The court in Guevara noted that there were several reasons for concluding that the 

incidents were not factually separate, including: (1) all of the threats occurred during the 

kidnapping, that is, “during a single course of criminal conduct”; (2) the threats occurred 

during a “relatively short time frame” of approximately 45 minutes; and (3) the threats 

were made “with the same motive, or the same ‘original intent’: to harm [the victim] and 

intimidate him into silence.” Id. at 420. As to the last point, the court rejected Angela’s 

contention that each of her threats was produced by fresh impulses or different motives. 

Id. at 420 n.15.

This case far more closely aligns with Guevara than with Hagood. In Guevara, the 

assaultive conduct occurred during the kidnapping; here, the assaultive conduct occurred 

during the burglary. In Guevara, the assaultive conduct occurred over a “relatively short 

time frame” of about 45 minutes; here, the assaultive conduct took place within 5-10 

minutes, at most. In Guevara, the motive behind the assaultive conduct was the same—to 

harm the victim and intimidate him into silence—here, the motive was the same 

throughout—to get out of the Robins’ house. In my view, therefore, just as a unanimity 

instruction was not required in Guevara, so too here.5

5

In aligning this case with Hagood and distinguishing Guevara, the Majority points 

out that the defense in Guevara failed to request a unanimity instruction at trial, and the 

court addressed the issue under a plain error standard of review. But that’s what happened 

in Hagood as well—the defense failed to request a unanimity instruction at trial, and the 

court reviewed the issue for plain error. Hagood, 93 A.3d at 217. Notably, although the 

court in Hagood found that the unanimity instruction should have been given, the court 

concluded that a reversal was not warranted under a plain error review. Id. at 214. 

Moreover, one of the bases on which the court in Hagood distinguished Guevara was that 

“the victim was continuously in the presence of his kidnappers throughout the entire 
14

II.

MR. JOHNSON WAIVED AND FAILED 

TO PRESERVE THE ISSUES RAISED ON APPEAL

Assuming for the sake of argument that Mr. Johnson’s duplicity concern was valid, 

in my view, Mr. Johnson failed to preserve the issue for appeal. I see two categories of 

waivers here. The first category focuses on: (i) the specific objection made at trial, (ii) the 

specific errors Mr. Johnson claims on appeal, and (iii) the specific verdicts reached by the 

jury. The second category involves the timing of Mr. Johnson’s duplicity objection. 

I will address each in turn.

A.

It is critical to keep in mind the specific objection that defense counsel eventually 

asserted. After the State concluded its rebuttal closing argument, defense counsel argued 

that the State had contended in its opening statement that the first-degree assault and use 

of a firearm charges were predicated on the gunshot with Ms. Robin’s pistol at the bottom 

of the stairs, but that in the State’s rebuttal closing argument, the State also invited the jury 

to convict Mr. Johnson for both charges based on his brandishing of the Yellowboy at the 

top of the stairs. In the ensuing colloquy, defense counsel was given multiple opportunities 

to explain what she was asking the court to do. In response, defense counsel was consistent 

in requesting that the court instruct the jury that it must only consider the shooting incident 

ordeal—there was no break in the kidnapping which the factfinder could reasonably 

perceive to sever the events into distinct criminal acts—and thus we characterized the 

incident as a ‘single course of criminal conduct.’” Id. at 220 n. 20. For the same reason, 

the case at bar more closely aligns with Guevara than Hagood.
15

at the bottom of the stairs for the first-degree assault and use of a firearm charges.6 With 

this in mind, I will turn to the specific waiver and failure to preserve issues.

6 The colloquy was as follows:

THE COURT: Okay. What are you asking me to do?

[DEFENSE COUNSEL]: I’m asking you to instruct the jury that what 

they’re finding guilty or not guilty of is the allegation of firing the gun

through Ms. Robin’s hand, and that the firearm we’re talking about is the 

revolver.

***

THE COURT: So what is it you would -- are specifically asking 

me to do?

[DEFENSE COUNSEL]: I would like you to tell them that what the State 

said is not what they’re deciding. They’re deciding did he commit a first

degree assault when she was injured by the gun in her hand.

And did he commit a -- did he use a firearm, meaning the revolver, 

Ms. Robin’s revolver in the course of a crime of violence.

***

THE COURT: You know, so, I -- again, put on the record what 

you want me to do so the record is clear, [defense counsel].

[DEFENSE COUNSEL]: I would like to tell them that Mr. Johnson is on 

trial for a first degree assault and this is a firearm first degree assault, using -

-

THE COURT: Why is that? What – what about the serious 

bodily injury?

[DEFENSE COUNSEL]: That’s -- I guess that’s possible, so.

THE COURT: Well, see I -- I heard testimony --

[DEFENSE COUNSEL]: I don’t –

THE COURT: -- from the victim that she has problems with her 

hand. So I think that under the definition of serious bodily injury, and it’s

directly related to the --

[DEFENSE COUNSEL]: Okay. Okay.

THE COURT: Okay. All right.

[DEFENSE COUNSEL]: He’s charged with a single first -- count of first 

degree assault. 

THE COURT: Okay.

[DEFENSE COUNSEL]: And that first degree assault it was alleged by the 

State is that he fired a gun through her hand. It wasn’t that he pointed a gun 

at her in the attic. I understand opening is not evidence.
16

1.

Defense counsel’s duplicity objection at trial differed from Mr. Johnson’s argument 

on appeal. On appeal, Mr. Johnson argues that the trial court should have given a special 

unanimity instruction, and short of that, the court should have required the State to elect 

between the two incidents as the basis for the assault and use of a firearm charges. Mr. 

Johnson does not explain how the specific instruction his counsel requested at trial—which 

did not include any derivation of the word “unanimous,” let alone the word itself—should 

be considered a special unanimity instruction. Further, defense counsel at trial did not ask 

the court to order the State to make an election. In my view, the mismatch between the 

specific objection at trial and Mr. Johnson’s claimed error on appeal constitutes a waiver 

under Maryland Rule 8-131.7

7 Md. Rule 8-131 states:

(a) Generally. The issues of jurisdiction of the trial court over the subject 

matter and, unless waived under Rule 2-322, over a person may be raised in 

and decided by the appellate court whether or not raised in and decided by 

the trial court. Ordinarily, the appellate court will not decide any other issue 

unless it plainly appears by the record to have been raised in or decided by 

the trial court, but the Court may decide such an issue if necessary or 

desirable to guide the trial court or to avoid the expense and delay of another 

appeal.

(b) In Court of Appeals--Additional Limitations.

(1) Prior Appellate Decision. Unless otherwise provided by the order 

granting the writ of certiorari, in reviewing a decision rendered by the Court 

of Special Appeals or by a circuit court acting in an appellate capacity, the 

Court of Appeals ordinarily will consider only an issue that has been raised 

in the petition for certiorari or any cross-petition and that has been preserved 

for review by the Court of Appeals. Whenever an issue raised in a petition 

for certiorari or a cross-petition involves, either expressly or implicitly, the 

assertion that the trial court committed error, the Court of Appeals may 
17

2.

Even if we were to find that there was no mismatch between Mr. Johnson’s “ask” 

at trial and his “ask” on appeal, two facts remain: (1) defense counsel’s objection at trial 

was limited to the first-degree assault and use of a firearm charges; and (2) the jury 

acquitted Mr. Johnson on the first-degree assault count. Thus, even if the court erred as 

the Majority holds, such error was harmless beyond a reasonable doubt as to the firstdegree assault charge. See Rubin v. State, 325 Md. 552, 585 (1992). And because defense 

counsel’s objection did not go to the second-degree assault charge, Mr. Johnson failed to 

preserve an objection as to that count, as required under Rule 8-131. Therefore, his 

conviction for second-degree assault should stand.

B.

consider whether the error was harmless or non-prejudicial even though the 

matter of harm or prejudice was not raised in the petition or in a crosspetition.

(2) No Prior Appellate Decision. Except as otherwise provided in Rule 8-

304(c), when the Court of Appeals issues a writ of certiorari to review a case 

pending in the Court of Special Appeals before a decision has been rendered 

by that Court, the Court of Appeals will consider those issues that would 

have been cognizable by the Court of Special Appeals.

(c) Action Tried Without a Jury. When an action has been tried without a 

jury, the appellate court will review the case on both the law and the 

evidence. It will not set aside the judgment of the trial court on the evidence 

unless clearly erroneous, and will give due regard to the opportunity of the 

trial court to judge the credibility of the witnesses.

(d) Interlocutory Order. On an appeal from a final judgment, an 

interlocutory order previously entered in the action is open to review by the 

Court unless an appeal has previously been taken from that order and decided 

on the merits by the Court.

(e) Order Denying Motion to Dismiss. An order denying a motion to 

dismiss for failure to state a claim upon which relief can be granted is 

reviewable only on appeal from the judgment.
18

I would also hold that Mr. Johnson failed to timely raise the issue, notwithstanding 

multiple opportunities to do so. First, he should have raised the issue through a timely pretrial motion under Rule 4-252. Second, he should have raised the issue with timely 

objections to the evidence that created the duplicity concern, as such evidence was offered

at trial. Third, he should have raised the issue through a timely objection to the jury 

instructions. He did none of this.

1.

Mr. Johnson’s duplicity objection was, at bottom, a challenge to the validity of the 

indictment entered by the grand jury. See Cooksey v. State, 359 Md. 1, 5-6 (2000). Under 

Rule 4-252(a), certain “matters shall be raised by motion in conformity with this Rule and 

if not so raised are waived unless the court, for good cause shown, orders otherwise[.]” 

Relevant here, one such matter is, under subsection (a)(2), “[a] defect in the charging 

document other than its failure to show jurisdiction in the court or its failure to charge an 

offense[.]” Under subsection (b), the defendant must file the motion “within 30 days after 

the earlier of” his counsel’s entry of appearance or his first appearance before the court. 

However, under that same subsection, if grounds for a motion pertaining to a defect in the 

indictment are disclosed through the discovery process, the defendant can raise the 

duplicity defect by a motion made “within five days” of receiving said discovery. For the 

following reasons, I would hold that Mr. Johnson had ample opportunity to raise a duplicity 

challenge to the indictment in a timely motion under Rule 4-252, and his failure to do so 

constitutes a waiver of any such defect. 
19

Mr. Johnson was indicted by a grand jury with a general form indictment. The 

counts in the indictment relevant to Mr. Johnson’s appeal were Count 1 for first-degree 

assault under Section 3-202 of the Criminal Law Article (“CR”) of the Maryland Annotated 

Code (2021), Count 2 for second-degree assault under CR § 3-203, and Count 3 for use of 

a firearm during the commission a violent crime under CR § 4-204(b).8 By statute, a 

charging document for an assault charge need not provide more than the name of the victim, 

the date of the assault, the county in which the assault occurred, the statute that was 

violated, and that the violation was “against the peace, government, and dignity of the 

State.” CR § 3-206(a). Because first-degree assault can be charged without including the 

specific facts and circumstances, one could plausibly assert that a general form indictment 

of the sort used here does not, on its face, reveal a duplicity problem. Clearly, that’s what 

the Majority assumes here.

But that’s not the end of the analysis. Under CR § 3-206(b), a defendant charged 

with assault is “entitled to a bill of particulars[,]” the purpose of which is “to guard against 

the taking of an accused by surprise by limiting the scope of proof.”9 See Dzikowski v. 

8 Counts 4 through 10 charged Mr. Johnson with various other crimes during his 

burglary of the Robins’ home, and Counts 11 through 21 charged him with various crimes 

pertaining to alleged burglaries of other homes. The only counts at issue on appeal are the 

first three counts.

9 CR § 3-206(b) provides:

If the general form of indictment or information described in subsection (a) 

of this section is used to charge a crime described in § 3-202, § 3-203, or § 3-

205 of this subtitle in a case in the circuit court, the defendant, on timely 

demand, is entitled to a bill of particulars.
20

State, 436 Md. 430, 447 (2013) (emphasis added) (quoting McMorris v. State, 277 Md. 62, 

70 n.4 (1976)). Although generally a bill of particulars is not considered in “determining 

the validity of an indictment[,]” that is not the case if the defendant is statutorily entitled to 

one. See State v. Mulkey, 316 Md. 475, 489 (1989). Thus, Mr. Johnson could have 

demanded a bill of particulars, and upon receipt of same, could have filed a motion 

challenging the indictment on duplicity grounds. The record reflects that Mr. Johnson did 

not demand a bill of particulars.

10

 

Another basis to find that Mr. Johnson waived his right to challenge the indictment 

as duplicitous is grounded in Rule 4-252(b), which permits a defendant to raise a duplicity 

challenge by a motion made “within five days” of receiving discovery that discloses a 

defect in the indictment. The facts that supported Mr. Johnson’s duplicity challenge were 

set forth in the statement of probable cause, and again were made known from the State’s 

discovery. The probable cause statement included the following description of the events 

that day:

Detective Wisniewski and Detective Lange responded to University of 

Maryland Shock Trauma Center and spoke with Victim Robin. Victim Robin 

advised that she came home and recognized that the table lamp in her 

bedroom was broken. This prompted her to go upstairs in the attic to review 

their home surveillance system. Victim Robin advised as she walked upstairs 

into the attic, she observed an unknown male subject holding her rifle, which 

she knew to be inoperable. She advised that she attempted to remove the rifle 

out of his hands. Victim Robin advised after attempting to take the rifle, she 

ran to the bottom of the stairs and slammed the door in an attempt to keep 

the subject isolated to the upstairs. She advised that she ran to her bedroom 

and retrieved her .357 revolver. She advised that she yelled to Suspect 

Johnson “do not come downstairs.” She advised that he muttered back “I’ll 

shoot you with the rifle, your husband owes me weed.” Victim Robin stated 

10

 Md. Rule 4-241 governs requests for a bill of particulars.
21

that Defendant Johnson attempted to wrestle the gun from her hands and a 

brief struggle ensued at the bottom of the stairs. She advised that the 

defendant stated “I’m going to kill you now, I’m going to kill you.” She 

advised that she continued to wrestle with him and he bit her on the collar 

bone and then she believes she bit him back on the face. She advised that 

Defendant Johnson pulled the trigger at which time she suffered a gunshot

wound to her hand. 

Based on this description, Mr. Johnson was on notice that Ms. Robin had alleged: 

(1) a physical struggle over the rifle, (2) that Mr. Johnson prevailed in that struggle by 

keeping possession of the rifle, (3) that she was prompted by fear to retrieve her gun, and 

(4) that Mr. Johnson threatened to shoot her with the rifle. This description also reveals 

that Ms. Robin alleged a physical struggle at the bottom of the stairs, that Mr. Johnson bit 

her, and that he shot her with her pistol. Thus, the ingredients of a potential duplicity 

problem based on Mr. Johnson’s use of two separate firearms as well as other facts 

constituting various other forms of assault, were all contained in the statement of probable 

cause. 

Additional information was subsequently provided to Mr. Johnson by the State 

before trial. After the police and medics arrived, Ms. Robin was taken to the hospital, and 

later that day, she was interviewed by police detectives. Mr. Johnson’s counsel received a 

recording of the interview several days before trial. In that recording, Ms. Robin described 

the encounter, including the incidents at the top and bottom of the stairs. As to the incident 

at the top of the stairs, she explained that “he was holding a Yellowboy that my husband 

was working on,” and that “we wrestled for the [rifle].” She also explained that she 

couldn’t remove the rifle from his hands, so she went to get her pistol. The thought 

occurred to her that “maybe my husband has fixed the [rifle]—I should get my pistol.” 
22

From this recording, Mr. Johnson knew that Ms. Robin was alleging facts sufficient to 

show that a threat was made with the Yellowboy rifle at the top of the stairs, and that she 

was put in enough fear to prompt her to retrieve her handgun.

That defense counsel understood the multiple permutations of fact patterns that 

supported the charges is evident if we consider the implications behind the substance of 

defense counsel’s objection. Recall that defense counsel’s objection was that the State had 

asserted in its opening statement one basis for the assault charge—firing the handgun—

and then in rebuttal invited the jury to convict on another basis—the use of the 

Yellowboy.11 The implication behind that objection was that defense counsel had relied 

on the State’s opening statement as providing the basis for the charges, and then was 

unfairly blind-sided when the State, in its rebuttal, seemingly expanded the charge. But 

from a waiver or preservation perspective, that begs some important questions. How did 

defense counsel prepare for trial? Which facts did defense counsel believe, before she had 

the benefit of the State’s opening statement, supported the assault and the use of a firearm 

charges? Clearly, defense counsel was prepared to address at trial the facts concerning the 

Yellowboy rifle because, as shown below, she did address those facts both in her opening 

statement and in her cross-examination of Ms. Robin, and quite vigorously at that. Defense 

counsel’s ability to prepare to address such facts at trial shows, in my view, that ample 

11 In my view, the State’s closing did not invite the jury to look at the incident as 

separate offenses. When the entirety of the State’s arguments are read in context, it appears 

to me that the State was arguing that there was one continuous assault. 
23

information was provided pre-trial for Mr. Johnson to timely raise a duplicity concern. On 

that basis alone, I would affirm.

2.

Proceeding from the premise—incorrect though it is—that there was no duplicity 

issue discernible from either the charging document or the State’s discovery responses, the 

Majority states that “[t]he same constitutional unanimity concerns arise where the State 

presents evidence of multiple distinct incidents to prove a crime charged as a single count, 

namely, that the jury will not unanimously agree as to which criminal incident the 

defendant committed.” Maj. op. at 9.

Assuming this premise is true, the critical question left unaddressed by the Majority

is what, if anything, should a defendant do to preserve the issue as the evidence comes in 

at trial? In my view, just as a defendant is required to timely raise a duplicity problem if 

one is apparent or discoverable from the charging document, so too, we should require a 

defendant to discern and raise a duplicity problem arising from the evidence as the evidence 

is admitted at trial. The tools already exist for doing so.

Under Rule 4-323(a), “[a]n objection to the admission of evidence shall be made at 

the time the evidence is offered or as soon thereafter as the grounds for objection become 

apparent.” If the State attempts to introduce evidence that creates a duplicity concern, the 

defendant has, in my view, the obligation to timely object on all appropriate grounds,
24

including those set forth in Rules 5-40212 and 5-403.13, 14 And if the evidence is deemed 

admissible for some other purpose (perhaps to prove a non-duplicitous count in the 

indictment), the defendant has the right to request a limiting instruction under Rule 5-105, 

which provides that “[w]hen evidence is admitted that is admissible . . . for one purpose 

but not admissible . . . for another purpose, the court, upon request, shall restrict the 

evidence to its proper scope and instruct the jury accordingly.” 

If we assume for the sake of argument there was a valid duplicity concern, then a 

timely objection to the evidence, if successful, would have had the salutary effect of 

requiring the State to tailor its evidence to the specific incident underlying the charge—

12 Md. Rule 5-402 provides: “Except as otherwise provided by constitutions, 

statutes, or these rules, or by decisional law not inconsistent with these rules, all relevant 

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

13 Md. Rule 5-403 provides: “Although relevant, evidence may be excluded 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.”

14 This Court implied in Cooksey that objections of that sort would likely be 

appropriate. 359 Md. 1. In Cooksey, the State sought to navigate around a duplicity defect 

in its indictment and stave off dismissal by advocating for the rule that Majority adopts 

here—a special unanimity instruction or election by the State at the conclusion of the trial. 

Id. at 25-26. Holding steadfast to the view that duplicity is a pleading issue, we rejected 

the State’s proposal precisely because it would be too little too late. Id. at 26. That is, 

because the evidence supporting the duplicitous charge—much of which would have 

otherwise been inadmissible—was already admitted, the risk of a unanimity problem was 

not sufficiently mitigated. Id. Defendants are expected to always remain vigilant in 

identifying grounds to object to evidence, and I see no reason why inadmissible evidence 

giving rise to a duplicity problem should be treated any differently.
25

that is, using the Majority’s formulation of the rule, the State would have been required to 

make an election.15 

Alternatively, had Mr. Johnson asserted a timely objection, it is possible the 

evidence could have been deemed admissible for some other purpose (perhaps to prove a 

non-duplicitous count in the indictment), in which case Mr. Johnson could have requested

a limiting instruction under Rule 5-105, which provides that “[w]hen evidence is admitted 

that is admissible . . . for one purpose but not admissible . . . for another purpose, the court, 

upon request, shall restrict the evidence to its proper scope and instruct the jury 

accordingly.” Under that scenario, Mr. Johnson would have been granted the functional 

equivalent of the limiting instruction he later requested, but at a time when the State could 

have adjusted its trial presentation accordingly. 

Put simply, if we are going to hold that the court must give a specific unanimity 

instruction or require the State to make an election when a duplicity issue first arises from 

the evidence admitted at trial, there is no sound reason to treat the admission of such 

problematic evidence any different from the way all other objectionable evidence is treated. 

That means that unless a timely objection is made as required by Rule 4-323, any error 

arising from the admission of such evidence should be deemed waived.

Here, requiring a timely objection would be fatal to Mr. Johnson’s appeal. In its 

opening statement, the State described the events at the top of the stairs as follows:

She goes up to the attic. Gets up into the attic, and that’s where she 

encounters Mr. Johnson. She encounters Mr. Johnson holding a rifle, and it 

15 And if the objection had been overruled, then the issue would have been preserved 

for appeal.
26

was a rifle that belonged to the Robins, the homeowners, because they have 

guns. 

He racked the lever, told her it was loaded. There was a brief struggle 

over that gun, and upstairs in that attic, fortunately, Solomon was not up there 

with her, her son, he was still downstairs. She screamed for him to get out. 

To go wait outside . 

So it was at that point after Mr. Johnson racks the -- the lever on that 

rifle she disengages. She goes back downstairs. She closes that attic door.

She goes to get her own gun out of her safe in her bedroom. And she loads 

that gun.

The State further explained in its opening that Mr. Johnson ratcheted up the burglary 

to a “different level by arming himself. By picking up that rifle that was up in the attic. 

By threatening Ms. Robin. By trying to scare her to get her out of there so he could make 

his get away.” Thus, from the very beginning of the trial, it was evident that the State 

intended to prove that the events at the top of the stairs supported the counts for first-degree 

assault and use of a firearm. Certainly, Mr. Johnson’s counsel was prepared for that line 

of attack because, after acknowledging in her opening statement that Mr. Johnson 

committed a burglary, she addressed those facts head-on, telling the jury that Mr. Johnson 

did not intend to put Ms. Robin in fear when he held the Yellowboy, and that Ms. Robin 

knew the rifle was inoperable; therefore, she was not, in fact, put in fear.16 

16 Defense counsel stated:

This case is about a burglary. It's about a burglary that went terribly 

wrong. Um, the homeowner Mrs. Robin came home. She knew the house --

or she thought the house was in disarray. So instead of taking her son out 

immediately and calling 911, she chose to go into the house and look around.

She does go up to the attic where he is standing, holding a gun called 

-- which she calls a Yellowboy, which is an old fashioned lever type rifle. 

Um, she knew that that gun was inoperable. She knew that her 

husband was working on that gun. And he wasn’t threatening her with the 
27

As foreshadowed by the State’s opening, evidence of an assault with the Yellowboy 

at the top of the stairs was presented in the State’s prima facie case through Ms. Robin’s 

testimony, all of which was admitted without objection.17 Such evidence was not, as far as 

I can tell, relevant to any counts other than the assault and use of a firearm charges. Mr. 

Johnson could have objected to such evidence pursuant to Rules 5-402 and/or 5-403. 

Alternatively, Mr. Johnson could have asked the trial judge to instruct the jury pursuant to 

Rule 5-105 that it may not consider such evidence for the first-degree assault and use of a 

firearm charges. Mr. Johnson did neither.

Instead, defense counsel tackled the issue in her cross-examination. Focusing on 

the events that transpired at the top of the stairs, defense counsel attempted to demonstrate 

that Ms. Robin knew the rifle wasn’t loaded and that she thought Mr. Johnson’s demeanor 

was relaxed, all with the implication that she was not put in fear.18 Again, as far as I can 

gun. He was holding it potentially as something he may have thought about 

stealing.

17 The Majority describes her testimony at length, thus, it will not be repeated here.

18 Such cross-examination included:

QUESTION: Um, now I want to -- I have a couple more questions about the 

Yellowboy. You’ve said you have a practice in your home of keeping guns 

locked away? 

ANSWER: Yes. 

QUESTION: For safety reasons? 

ANSWER: Right. 

QUESTION: If a gun works you’ve got to put it away in the safe if you’re 

not using it? 

ANSWER: That is certainly the goal. 
28

QUESTION: And the cowboy guns, they’re real guns, they can really hurt 

somebody? 

ANSWER: Yes. 

QUESTION: So, you were aware that had the gun been functioning, your 

husband would have put it in the safe? 

ANSWER: I was aware that had that gun been functioning, it not be 1 

o’clock in the morning and my husband exhausted and in pain, he would 

have walked down two flights of stairs, gone through the four to the left, 

three to the right, two the left, turn clack, pull, open and put it away, and then 

walked back up and a flight of stairs to go to bed. 

QUESTION: And the last, um -- the last information you had regarding the 

Yellowboy was that it wasn’t functioning? 

ANSWER: Correct.

***

QUESTION: You were confident --

ANSWER: Right. 

QUESTION: -- at that point it wasn’t loaded? 

ANSWER: Absolutely. 

QUESTION: All right. 

ANSWER: I thought it didn’t work. 

QUESTION: And you heard yourself on 911, basically screaming at him on 

two occasions, I think, that -- “that’s not loaded”? 

ANSWER: Right. 

QUESTION: And would you agree on that 911 tape you’re not expressing 

any fear of the Yellowboy, are you? 

ANSWER: I think the only thing I’m expressing fear of is him coming 

down the damn stairs. 

***

QUESTION: You characterized Mr. Johnson’s demeanor as very calm?

ANSWER: Yeah, it was weird. 

QUESTION: So from the moment you first went up to the attic, um, that’s 

what struck you, he’s calm? 

ANSWER: It was blank. 

QUESTION: He had a flat affect? 

ANSWER: Yes. 

QUESTION: What does that mean “flat affect”? 

ANSWER: Not a lot --
29

tell, none of this testimony was relevant to any charges other than assault and use of a 

firearm. I would therefore hold that Mr. Johnson’s failure to object to the admission of the 

evidence or request a limiting instruction under Rule 5-105 constitutes a waiver of the issue 

on appeal.

3.

Even if Mr. Johnson is excused from failing to timely raise the issue pre-trial or as 

the evidence came in, then, in my view, he should have raised the issue, at the very latest, 

when the court instructed the jury. Rule 4-325(f) provides that “[n]o party may assign as 

error the giving or the failure to give an instruction unless the party objects on the record 

promptly after the court instructs the jury, stating distinctly the matter to which the party 

QUESTION: No --

ANSWER: -- of expression in his face. He was very, almost like automata. 

He was -- he was -- he was weird. I mean, normally you would think, oh, 

crap, I got caught. I should run away. There was none of that. Oh, I’ve been 

busted. You know, it was just this flat, nothing, super weird. 

QUESTION: No emotions were expressed toward you? 

ANSWER: No. 

QUESTION: He wasn’t at any point, um, I’m talking prior to the whatever 

the gun incident was down in the hallway, um, he wasn’t yelling at you? 

ANSWER: Correct. 

QUESTION: He wasn’t expressing anger toward you? 

ANSWER: He wasn’t expressing anything.

QUESTION: Even when you -- you say you tried to take the Yellowboy from 

him he didn’t have any of those emotions?

ANSWER: He just said “this things loaded.” And yanked it back. 

QUESTION: Uh, he was if -- if you could hear him speaking at all he was 

muttering or mumbling?

ANSWER: Well, he didn’t mutter in the attic. He very clearly spoke “this 

things loaded”, and then racked the lever. And then, he said something about 

weed, but my blood was rushing in my ears and I couldn’t -- I wasn’t really 

hearing a whole lot at that point.
30

objects and the grounds of the objection.” The Majority gives Mr. Johnson a pass for 

failing to comply with this requirement.

As to the assault charges, again recall that Mr. Johnson’s objection was that the State 

informed the jury in its opening statement that the first-degree assault charge was based on 

the shooting incident at the bottom of the stairs, and that in closing, the State suggested the 

Yellowboy incident at the top of the stairs as another basis for first-degree assault. If Mr. 

Johnson truly believed, based on the State’s opening statement, that the first-degree assault 

charge was limited to the shooting at the bottom of the stairs, then, in addition to timely 

objecting to the evidence, as discussed above, Mr. Johnson should have objected to the jury 

instructions that provided the jury with an alternative path to a conviction for first-degree 

assault. 

There are three distinct types of second-degree assault: “(1) intent to frighten, 

(2) attempted battery, and (3) battery.” Jones v. State, 440 Md. 450, 455 (2014) (citing 

CR § 3-203 and quoting Snyder v. State, 210 Md. App. 370, 382 (2013)). The jury 

instruction for second-degree assault in the Maryland Criminal Pattern Jury Instructions 

provides a separate version for each type. See MPJI-Cr 4:01 (providing version “A” for 

intent to frighten, version “B” for attempted battery, and version “C” for battery). The 

Notes on Use for this instruction offer two pieces of advice relevant here. First, only the 

versions that are generated by the facts of the case should be used. Second, although the 

attempted battery and battery versions “may both be applicable, it is unlikely that both” the 

intent to frighten and battery versions would be applicable in the same case. 
31

First-degree assault includes each of the elements of second-degree assault, plus at 

least one of the following two elements: (1) use of a firearm to commit the assault; or (2) an 

intention by the defendant to inflict serious physical injury in committing the assault. See 

MPJI-Cr 4:01.1A. Based on these pattern instructions, if the first-degree assault charge 

had been predicated solely on the shooting at the bottom of the stairs—which was the 

premise of defense counsel’s objection—then only the battery version of the second-degree 

assault instruction would have been appropriate. Yet the court, without objection by 

defense counsel, instructed the jury on both the intent to frighten and battery versions of 

assault.

19

 By failing to object to the instruction that gave the jury an alternative path to an 

assault conviction, I would hold that Mr. Johnson waived the issue on appeal. 

19 Relevant here, the judge instructed as follows:

There are two -- actually, there’s several ways in one may commit a 

second degree assault, those that are applicable in this case are what we call 

intent to frighten or battery.

An intent to frighten type of second degree assault is as follows. 

Assault is intentionally frightening another person with the threat of 

immediate offensive contact or physical harm.

In order to convict the defendant of the intent to frighten form of 

second degree assault the State must prove, that the defendant committed an 

act with the intent to place Jeanne Robin in fear of immediate offensive 

physical contact or physical harm. That the defendant had the apparent ability 

at the time to bring about offensive physical contact or physical harm.

That Jeanne Robin reasonably feared immediate offensive physical 

contact or physical harm. And this -- the defendant's actions were not legally 

justified.

Now, I'm going to describe the battery form of second degree assault. 

Assault is causing offensive physical contact to another person. In order to 

convict the defendant of the battery form of second degree assault the State 

must prove that the defendant caused offensive physical contact or physical 

harm to Jeanne Robin. That the contact was the result of an intentional or 
32

The same goes for the use of a firearm charge. The jury was instructed that to 

convict on that count, the State “must prove that the defendant committed first degree 

reckless act of the defendant and was not accidental. And that the contact 

was not consented to by Jeanne Robin and was not legally justified.

***

In order to prove the defendant committed a first degree assault of 

Jeanne Robin, the State must prove the intent to frighten or battery form of 

second degree assault, and must also prove that the defendant used a firearm 

to commit the assault or intended to cause serious physical injury in the 

commission of the assault. 

A firearm is a weapon that propels a bullet by gunpowder or similar 

explosive. 

Serious physical injury means an injury that creates a substantial risk 

of death or causing serious and permanent or serious and protracted 

disfigurement or loss or impairment of the function of anybody -- any bodily 

member or organ.

And as to the use of a firearm charge, the court instructed:

The defendant is charged with the use of a firearm in the commission 

of a felony or crime of violence. First degree assault and first degree burglary 

both are felonies and crimes of violence. 

In order to convict the defendant of use of a firearm in the commission 

of a crime of violence the State must prove that the defendant committed first 

degree assault and/or first degree burglary. That the defendant used a firearm 

in the commission of first degree assault and/or first degree burglary. 

A firearm is a weapon that fires, is designed to fire or may readily be 

converted to fire a projectile by the action of an explosive such as gunpowder 

or -- or the frame or receiver of such a weapon.

A firearm in this context includes an antique firearm, handgun, rifle, 

shotgun, short barrel rifle, short barrel shotgun, starter gun or any other 

firearm whether loaded or unloaded.

Use of a firearm includes brandishing, displaying, striking with, firing 

or attempting to fire a firearm in the furtherance of the felony or crime of 

violence.

A person uses a firearm when he uses it to create fear of harm.

The defendant need not -- need not injure anyone with the firearm, 

however, mere possession of a firearm at or near the crime is not sufficient.
33

assault and/or first degree burglary” and that he “used a firearm in the commission” thereof. 

We know that the jury acquitted Mr. Johnson of first-degree assault, leaving first-degree 

burglary as the sole possible predicate for that charge. Mr. Johnson conceded to the jury 

that he was guilty of first-degree burglary; thus, the only issue was whether he used a 

firearm while doing so. On that issue, the trial judge instructed the jury that “[u]se of a 

firearm includes brandishing, displaying, striking with, firing or attempting to fire a 

firearm in the furtherance of the felony or crime of violence.” (Emphasis added). The

jury was also instructed that the definition of “firearm” included “an antique firearm, 

handgun, rifle, shotgun, short barrel rifle, short barrel shotgun, starter gun or any other 

firearm whether loaded or unloaded.” (Emphasis added). In sum, the jury was instructed 

without objection by defense counsel that Mr. Johnson could be found guilty of first-degree 

assault if he brandished a rifle in the commission of the first-degree burglary. If defense 

counsel believed that only the handgun incident was in play for the use of a firearm charge, 

it was incumbent on defense counsel to timely object to the instruction that provided an 

alternative basis to convict on that count. The failure to do so constitutes a waiver of this

issue on appeal.

***

As discussed above, Mr. Johnson had multiple opportunities to spot and raise the 

duplicity issue before the closing arguments, starting with the charging document and 

ending with the jury instructions. Indeed, Mr. Johnson confronted and addressed the facts 

at trial that gave rise to his belatedly raised duplicity concern. Given the constitutional 

right at stake—the right to a unanimous verdict—a defendant should be required to raise 
34

such a concern at the earliest possible time, because otherwise, as explained below, the 

defendant could time the duplicity objection to secure and optimize an unfair tactical 

advantage. 

Under Rule 8-131(b)(2), this Court ordinarily does not address issues that were not 

raised in the petition or cross-petition for certiorari, and on that basis, the Majority declines 

to address the foregoing waiver issues. I disagree with that approach. First, when 

subsections (a) and (b) of Rule 8-131 are considered together, it seems to me that one 

party’s failure to raise a waiver issue does not require an appellate court to give the other 

party a pass for failing to properly preserve an issue in the trial court. Second, at a 

minimum, any review of the issue should be conducted under the more stringent plain error 

standard, as the courts did in Hagood and Guevara. Hagood, 93 A.3d at 221-25; Guevara, 

77 A.3d at 423. The Majority’s failure to do so here was a mistake.

The potential fallout from not addressing or acknowledging Mr. Johnson’s failure 

to preserve the issue in the trial court is too significant to ignore. In close call cases, it may 

not be so easy for the State, acting in good faith, to determine whether separate incidents 

should be charged as a single offense or as separate offenses. For example, here, if the 

State had charged Mr. Johnson with multiple counts of assault—for the threat with the 

Yellowboy, the hitting, the biting, and the shooting at the bottom of the stairs, or some 

combination thereof—then Mr. Johnson could have challenged the indictment on 

multiplicity grounds. 

If the State errs on the duplicitous side by including multiple incidents in a single 

count, the defect in the indictment cannot be cured by an amendment, and, therefore, is 
35

subject to dismissal. See State v. Beers, 21 Md. App. 39, 43-44 (1974); Cooksey, 359 Md. 

at 27. However, all is not lost for the State because it can rectify the problem by filing a 

superseding indictment that charges each offense in separate counts. See Tracy v. State, 

319 Md. 452, 456-57 (1990); State v. Ferguson, 218 Md. App. 670, 684-85 (2014). 

On the other hand, if the State errs on the multiplicity side by charging the defendant 

with separate offenses, the worst that can happen is that “[t]he court may respond to a 

successful objection by requiring the prosecutor to elect one count, consolidating the 

various counts, or simply advising the jury that only one offense is charged.” Albrecht v. 

State, 105 Md. App. 45, 56 (1995) (quoting 2 W.R. LaFave & J.H. Israel, CRIMINAL 

PROCEDURE § 19.2(e) at 457-58 (1984)). Thus, whether the indictment is duplicitous or 

multiplicitous, so long as the issue is timely raised, the State will have the opportunity to 

fix the problem before it’s too late and the case could then be decided on its merits. 

The defendant’s timing in raising the issue matters. From a defendant’s standpoint, 

the benefit of a successful duplicity challenge—protection of the right to a unanimous 

verdict—comes with the risk that he may very well get what he asks for, in which case, he 

could face the risk of multiple sentences for what could be viewed as a single offense. 

Depending on the facts of the case, a rational defendant may not wish to take that chance. 

For example, here, Mr. Johnson could have rationally decided not to make a duplicity 

objection under Rule 4-252(b) out of concern that he could be charged, convicted, and 

sentenced for two separate first-degree assaults. Thus, if a defendant is required to timely 

raise the issue, there would no strategic advantage to raise a duplicity objection unless he 
36

truly believes his right to a unanimous verdict would otherwise be imperiled. That’s as it 

should be.

By the time closing arguments are concluded, however, the risk/benefit calculus has 

shifted significantly in the defendant’s favor. By then, jeopardy has already attached, 

thereby precluding the State from filing a superseding indictment. Ferguson, 218 Md. 

App. at 685. At that point, making a duplicity objection and requesting a special unanimity 

instruction is all upside and no downside for a defendant in Mr. Johnson’s position. If the 

defendant is permitted to raise the issue after closing arguments, the worst that can happen 

is that the trial judge declines. On the upside, however, if the court grants the request, then 

the jury will be instructed that it cannot convict unless they unanimously agree precisely 

when and how—out of multiple possibilities—the offense was committed. Such an 

instruction at that juncture surely increases the odds of an acquittal. And the jury is being 

so instructed after jeopardy attached, so it’s too late for the State to fix the problem. 

It’s an ingenious tactic. As a result of the Majority’s decision, Mr. Johnson and 

defendants in a similar position will get the benefit of separating the incidents into separate 

offenses, without exposing themselves to the associated risk of multiple convictions and 

sentences. Such a result strikes me as patently unfair and unjust. Further, I am concerned 

that to prevent a recurrence of this scenario, when faced with the choice of erring on the 

side of duplicity or multiplicity in future close call cases, the State might prefer to risk a 

multiplicity challenge by charging separate offenses. In the aggregate, that would, in my 

view, redound to the detriment of future defendants in similar situations.
37

CONCLUSION

For the foregoing reasons, I respectfully dissent. 

Chief Judge Getty and Judge McDonald authorize me to state that they join in this 

dissent.