Opinion
1973-2022
03-05-2024
LACREE THOMAS RAMSEY v. STATE OF MARYLAND
UNREPORTED [*]
Circuit Court for Charles County Case No. C-08-CR-22-000215
Tang, Albright, James A. Kenney, III (Senior Judge, Specially Assigned), JJ.
OPINION
ALBRIGHT, J.
This case comes to us after a bench trial in the Circuit Court for Charles County. Lacree Thomas Ramsey (Appellant, "Mr. Ramsey") was charged with three counts of sexual solicitation of a minor. He was acquitted of one count at the end of the State's case, found not guilty of a second count, and guilty of a third count. Mr. Ramsey filed this appeal, requesting that this Court reverse his conviction and remand for a new trial.
Mr. Ramsey presents two questions on appeal, which we have rephrased:
Mr. Ramsey presented his questions in his brief as follows:
1. Was the evidence insufficient to sustain Mr. Ramsey's conviction for count two charging the sexual solicitation of a minor [T.]?
2. Did the trial court violate Mr. Ramsey's right to constitutional due process and Maryland Rule 4-246(b) when it failed to adequately determine and announce on the record that Mr. Ramsey had knowingly and voluntarily waived his right to a jury trial?
1. Was the evidence sufficient to support a finding of guilty on one count of sexual solicitation of a minor?
2. Did the circuit court err in determining (and announcing on the record) that Mr. Ramsey's waiver of a jury trial was knowing and voluntary?
We answer "yes" to question one, "no" to question two, and affirm the circuit court's judgment.
BACKGROUND
The facts as set forth in Mr. Ramsey's brief are largely undisputed. On February 2, 2022, Mr. Ramsey got high on PCP and drove to Charles County to purchase more drugs. When he could not find his dealer, Mr. Ramsey pulled over to ask people on the street if they had seen him.
One person to whom Mr. Ramsey spoke was minor child, T., who was a thirteen-year-old student at the local middle school. T. was walking home from school when Mr. Ramsey, who was wearing a ski mask, pulled up next to her in his car and rolled down his window. According to T., Mr. Ramsey told T. either, "I want to fuck with you[,]" or "hey, can I fuck with you[.]" T. asked Mr. Ramsey his age, and Mr. Ramsey falsely told her he was seventeen years old even though he was twenty-four years old. T. told him she was thirteen years old and said, "I'm too young." Mr. Ramsey asked for T.'s number, and T. again replied, "I'm only thirteen. I'm too young." Mr. Ramsey then drove away. This incident was charged as Count One of sexual solicitation of a minor.
To protect the minors' privacy, we refer to them here as T. and M. These are initials we have selected randomly and are not T.'s or M.'s actual initials.
Less than a minute later, Mr. Ramsey pulled up to T. again and asked her "if [she] suck[s] D, or something." T. could not remember Mr. Ramsey's exact words, but she testified, "I know he said the D word.... [H]e said dick." T. again said, "No, I'm sorry. I'm too young." She then walked away and called her parents. This incident was charged as Count Two of sexual solicitation of a minor.
The lead detective on the case interviewed T. the day after the incident. According to the lead detective, during that interview, T. said Mr. Ramsey asked, "Do you suck?" T. "believed that he was asking to suck his penis."
Mr. Ramsey then stopped minor child M., who was also thirteen years old and walking home from the local middle school, where she was a student. Mr. Ramsey, still wearing a ski mask, pulled up to M. and asked her age, if she smoked, and if she sucked dick. M. turned away and kept walking without acknowledging Mr. Ramsey. This incident was charged as Count Three of sexual solicitation of a minor.
The lead detective also interviewed M. the day after the incident. During that interview, M. said Mr. Ramsey asked, "Do you suck?" The lead detective testified that if, during the interview, M. said that Mr. Ramsey used the words "dick" or "cock," the lead detective would have noted that, but she did not.
Mr. Ramsey elected a bench trial after the circuit court denied his motion to sever the counts. At the pretrial hearing on that motion, Mr. Ramsey's counsel said that Mr. Ramsey did not want to decide whether he would waive his right to a jury trial until he learned whether the counts could be severed and who the trial judge would be. Defense counsel explained that if all three counts of sexual solicitation of a minor were tried together, a jury "would not be able to be fair and impartial[,]" whereas a judge would because Mr. Ramsey's defense revolved around a legal argument. Defense counsel said that he would talk about electing a bench trial with Mr. Ramsey.
The Honorable Hayward James West served as the judge at the motions hearing and at trial.
The court denied Mr. Ramsey's motion to sever the counts, and on the first morning of trial, Mr. Ramsey's counsel informed the court he would be electing a bench trial. The court then asked Mr. Ramsey a series of questions pertaining to the waiver of his right to a jury trial:
[THE COURT]: . . . Let me ask him some questions. Sir, what is your full name?
* * *
[MR.] RAMSEY: My full name is Lacree Thomas Ramsey.
[Crosstalk - inaudible.]
[THE COURT]: You don't have to say that, but that is fine. Thank you, Mr. Ramsey. Alright, Mr. Ramsey, you have a right as charged to have a jury hear your case, and we have a jury here, forty-seven jurors, okay? They are here to hear your case. I understand from counsel that you guys have had many discussions, and the decision is to waive your right to a jury, and you would have a judge in this case, me, decide guilt or innocence for four separate . . . four total counts?
[STATE]: Three . . . three separate counts.
[THE COURT]: Three separate counts. Is that correct? You have to say yes or no?
[MR.] RAMSEY: Yes, sir, yes.
[THE COURT]: Alright, is anyone forcing you to waive your right to a jury?
[MR.] RAMSEY: No.
[THE COURT]: Is anyone threatening you in any way to do that?
[MR.] RAMSEY: No.
[THE COURT]: Has anyone promised you anything?
[MR.] RAMSEY: No.
[THE COURT]: Alright, so this is a legal decision that you and [defense counsel], you talked about it, and this is what you have come to, correct?
[MR.] RAMSEY: Yes.
[THE COURT]: Alright, do you have any questions for [your counsel] about waiving your right to a jury?
[MR.] RAMSEY: No.
[THE COURT]: Alright, Carrie, let's note that the defendant has waived his right to have his case heard by a jury. Let's let the jury know they can release forty-seven, okay?
A bench trial followed. Both T. and M. testified for the State, as did T.'s mother and father. The lead detective also testified about her investigation, and another detective, who was received as an expert on historical cell site analysis, testified regarding Mr. Ramsey's location during the incident. The State also showed a video of Mr. Ramsey's interrogation.
Mr. Ramsey did not object to his waiver of a jury trial.
Once the State rested, Mr. Ramsey moved for acquittal on all three counts. The court granted the motion for Count One, which involved Mr. Ramsey telling T. "I want to fuck with you." However, the court denied the motion for Counts Two and Three, and the trial proceeded on those counts.
The court later explained the reason it had granted Mr. Ramsey's motion for acquittal on Count One: it viewed Counts One and Two, taken together, as only one transaction because there was no significant lapse in time between the events.
Mr. Ramsey then testified. He said that he drove to the area in question and that he was "out of [his] mind that day[.]" He "very vaguely" remembers speaking with T. and M. He testified that he may have said to them, "Can I fuck witchu?" which he claims would mean "hey, what's up[.]" He also testified that he may have cursed T. and M. out and said "y'all suck[,]" but he "was not trying to get a little girl to perform oral sex on [him], period, point blank." Mr. Ramsey denies that he was asking the girls for sex.
Mr. Ramsey had recently lost his job. His grandfather had also recently passed away from colon cancer. Mr. Ramsey says he turned to drugs to deal with his grief.
The circuit court found Mr. Ramsey guilty on Count Two of sexual solicitation of a minor, which involved him asking T. "Do you suck?" The court found Mr. Ramsey not guilty on Count Three of sexual solicitation of a minor, which alleged that he asked M. if she smokes and sucks. On Count Two, the court sentenced Mr. Ramsey to five years' incarceration, with all but 315 days suspended. The court gave Mr. Ramsey credit for 314 days of house arrest and one day of confinement. It also imposed five years of supervised probation.
Mr. Ramsey then timely filed this appeal.
DISCUSSION
Mr. Ramsey claims that the evidence was insufficient to support a finding of guilt on sexual solicitation of a minor and that the circuit court did not properly accept and record his jury waiver, which was not knowing and voluntary. We find that the evidence was sufficient to find Mr. Ramsey guilty beyond a reasonable doubt on Count Two of sexual solicitation of a minor, and the circuit court properly accepted Mr. Ramsey's jury trial waiver as knowing and voluntary.
I. Sufficiency of the Evidence
A. Mr. Ramsey's Contentions
Regarding sufficiency, Mr. Ramsey argues the evidence was not sufficient to satisfy the actus reus or mens rea requirements for sexual solicitation of a minor under Maryland Code, Criminal Law § 3-324 ("CL § 3-324"). That statute says:
A person may not, with the intent to commit a violation of § 3-304 or § 3-307 of this subtitle . . . knowingly solicit a minor, or a law enforcement officer posing as a minor, to engage in activities that would be unlawful for the person to engage in under § 3-304 or § 3307 of this subtitle[.]
Section 3-304 criminalizes rape in the second degree and says, "A person may not engage in vaginal intercourse or a sexual act with another: . . . if the victim is under the age of 14 years, and the person performing the act is at least 4 years older than the victim." CL § 3-304(a)(3).
Section 3-307 criminalizes sexual offenses in the third degree, including "engag[ing] in sexual contact with another if the victim is under the age of 14 years, and the person performing the sexual contact is at least 4 years older than the victim[.]" CL § 3-307(a)(3).
CL § 3-324(b)(1) (footnotes added).
Mr. Ramsey first argues that the required speech, or the actus reus, must be highly specific and that his speech was not specific. He asserts that allowing a broad interpretation of the required speech would violate a defendant's right to free speech under the First Amendment of the U.S. Constitution and Article 40 of the Maryland Constitution's Declaration of Rights. Because the need to protect this right requires a narrow interpretation of the statute, Mr. Ramsey contends, his speech did not qualify under the definition of "solicitation." Rather, Mr. Ramsey asserts that "solicit" in the meaning of the statute only has a "concrete, transactional connotation."
Mr. Ramsey's mens rea argument is twofold. First, Mr. Ramsey contends that the statute requires a specific intent to engage in rape in the second degree or sexual offense in the third degree. Second, Mr. Ramsey asserts that "knowingly" in the statute applies to both "to solicit a minor" and "to engage" in the relevant offenses. Because of these prerequisites, Mr. Ramsey argues that the evidence did not demonstrate the required mens rea. Mr. Ramsey asserts that his speech did not evidence either a specific intent to "incite a minor to engage in imminent sexual acts" or that he spoke "knowingly . . . to engage in" prohibited activities.
B. Standard of Review
In reviewing a criminal conviction for sufficiency of the evidence, we examine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original); accord McGagh v. State, 472 Md. 168, 194 (2021). For a bench trial, we review the case on "both the law and the evidence." Md. Rule 8-131(c). We do "not set aside the judgment of the trial court on the evidence unless clearly erroneous[,]" and we "give due regard to the opportunity of the trial court to judge the credibility of the witnesses." Id.
Where a defendant's constitutional right is at issue, courts sometimes supplement the Jackson standard of review with de novo review to ensure the protection of the defendant's fundamental rights. McGagh v. State, 472 Md. at 195. However, here, we find that Mr. Ramsey's constitutional right to free speech was not at issue because his speech allegedly constituted solicitation. See United States v. Williams, 553 U.S. 285, 297-98 (2008) (explaining that speech that qualifies as solicitation is not protected by the First Amendment of the Constitution). According to the Supreme Court of the United States, "[m]any long established criminal proscriptions-such as laws against conspiracy, incitement, and solicitation-criminalize speech, . . . that is intended to induce or commence illegal activities" and thus "enjoy[s] no First Amendment protection[.]" Id. at 297-98 (emphasis added); see also Cherry v. State, 18 Md.App. 252, 263-64 (1973) (holding that there is no First Amendment protection for solicitation to commit an unlawful act). Our result is the same under Article 40 of the Maryland Declaration of Rights. Because Mr. Ramsey's speech was not constitutionally protected then, we review the evidence under the Jackson standard.
For the purposes of this case, we interpret Article 40 of the Maryland Declaration of Rights in pari materia with the First Amendment. See Sigma Delta Chi v. Speaker, Maryland House of Delegates, 270 Md. 1, 4 (1973) ("We have said that the legal effect of the guarantee of freedom of speech and press ordained in Art. 40 is substantially the same as that enunciated in the First Amendment. With this in mind, we have treated Art. 40 as being in pari materia with the First Amendment."); cf. Abbott v. State, 190 Md.App. 595, 618 n. 10, 629 (2010) (interpreting Article 40 in pari materia with the First Amendment when deciding to review the sufficiency of evidence establishing a defendant's true threat under the same standard in Jackson rather than de novo).
C. The evidence was sufficient to support a finding of guilt beyond a reasonable doubt under CL § 3-324.
The evidence presented at trial was sufficient to support a finding of Mr. Ramsey's guilt. To begin, the actus reus of CL § 3-324 is to "solicit" a minor or officer posing as a minor to engage in one of the listed sex offenses. To "solicit" is defined in the statute as "to command, authorize, urge, entice, request, or advise a person by any means[.]" CL § 3-324(a). While solicitation can have the goal of engaging in a transaction, the definition does not require that.
The circuit court found that Mr. Ramsey asking T. "Do you suck?" was an authorization or a request. It reasoned that requests need not always be worded explicitly but may be implied. For example, to qualify as solicitation, a phrase does not need to be worded as, "Will you do x for me?" See Jones v. State, 213 Md.App. 208, 218 (2013) ("In determining a defendant's intent, the trier of fact can infer the requisite intent from surrounding circumstances such as the accused's acts, conduct and words." (internal quotations omitted)); see, e.g., Poole v. State, 207 Md.App. 614, 619, 635 (2012) (finding the defendant saying "I'm sorry you're just so beautiful" was not a solicitation for sex).
Moreover, Mr. Ramsey's actions with T. show that his question, "Do you suck?" was indeed a request. Mr. Ramsey was wearing a ski mask when he was talking to T. He also spoke to T. on two different occasions. On the first occasion, he asked for T.'s age and her phone number, and he told her he "want[ed] to fuck with [her]" before driving away. Then, Mr. Ramsey returned and asked T. the question above. Looking at the evidence as a whole, the circuit court could reasonably find that Mr. Ramsey's asking T. "Do you suck?" was a request.
At the bench trial, Mr. Ramsey did not challenge the admissibility of the evidence related to each count vis-a-vis the other two. Accordingly, we consider the evidence as a whole in determining whether there was sufficient evidence to support the circuit court's finding of guilt on Count Two.
The court also could have rationally found that Mr. Ramsey's actions fulfilled the mens rea requirements. First, Mr. Ramsey spoke knowingly because he should have known that asking someone "Do you suck?" could be interpreted as a request for such.
Second, the circuit court reasonably found that Mr. Ramsey knew T. was thirteen years of age at the time of the request. The court pointed out that Mr. Ramsey knew he was near a middle school because he said his friend's little brother attended the same middle school. Mr. Ramsey also saw that T. had a backpack on, and he claimed he pulled over to ask her whether she had seen his friend's little brother. This claim supports the conclusion that Mr. Ramsey believed T. to be a student at the middle school. Most important, T. told Mr. Ramsey multiple times that she was "thirteen" and "too young" the first time he spoke to her. Consequently, by the second time Mr. Ramsey spoke to her, he knew how old T. was and yet asked her if she sucked.
Third, the court also could have reasonably concluded that Mr. Ramsey spoke to T. "knowingly" to engage in one of the listed offenses in the statute. While a person does not need to know the specific law they are breaking, see Liparota v. United States, 471 U.S. 419, 433-34 (1994) (holding the defendant must have known his act was unlawful but not what specific statutes or regulations it violated), it was reasonable to conclude Mr. Ramsey knew or should have known that engaging in sexual activities with a minor was illegal. This concept is widely known in our society; additionally, Mr. Ramsey lied about his age to T., suggesting he knew their age gap made the proposed activity illegal. Furthermore, T. told Mr. Ramsey that she was "too young." Based on this statement, the court could have reasonably inferred that even if Mr. Ramsey did not know that it was illegal to solicit T. the first time he asked her, he did know it the second time.
Finally, while solicitation of a minor is a specific intent crime, it was rational for the court to conclude that Mr. Ramsey possessed that specific intent. If someone asks a minor "Do you suck?," especially more than once, it is reasonable to conclude that the solicitor is asking with the intent of having the minor perform that sexual act.
Therefore, in viewing the evidence in a light most favorable to the State, the circuit court "could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. at 319. The evidence was thus sufficient to support the circuit court's finding of guilt.
II. Jury Trial Waiver
Mr. Ramsey also argues that the court did not properly accept his jury trial waiver, or determine and announce on the record that his waiver was knowing and voluntary. He claims that the court's colloquy failed to meet the proper standard and that he did not knowingly or voluntarily waive his jury trial right. He asserts that this error constituted a constitutional due process violation and a violation of Maryland Rule 4-246 and that such error was not harmless. Therefore, he contends, failure to comply with the constitutional and Maryland Rule requirements for a jury trial waiver was reversible error.
Mr. Ramsey admits that he did not object after the trial court accepted his jury trial waiver. Because the right to a jury trial is a constitutional right, it must be affirmatively waived; accordingly, Mr. Ramsey was not required to make a contemporaneous objection to preserve his appellate claim that his constitutional right to a jury trial was violated. See Biddle v. State, 40 Md.App. 399, 407 (1978) (holding that the record must affirmatively show compliance with the constitutional standard for jury trial waiver, and therefore, failure to object cannot preclude review).
However, Mr. Ramsey was required to object in order to preserve his appellate claim that the circuit court failed to comply with Maryland Rule 4-246's determine-and-announce requirement in accepting Mr. Ramsey's jury trial waiver. See Nalls v. State, 437 Md. 674, 693 (2014) (requiring a contemporaneous objection to a trial judge's purported failure to strictly adhere to the requirements of Maryland Rule 4-246). Since Mr. Ramsey did not object to the trial judge's alleged failure to properly record his waiver, the issue was not preserved, and we need not review it. See Hammond v. State, 257 Md.App. 99, 119 (2023) (explaining that to challenge a trial judge's failure to record a defendant's jury trial waiver, the defendant must make a contemporaneous objection on the record). Consequently, the only issue we review is whether Mr. Ramsey's jury trial waiver met the constitutional requirements of being knowing and voluntary.
Maryland Rule 4-246(b) provides:
A defendant may waive the right to a trial by jury at any time before the commencement of trial. The court may not accept the waiver until, after an examination of the defendant on the record in open court conducted by the court, the State's Attorney, the attorney for the defendant, or any combination thereof, the court determines and announces on the record that the waiver is made knowingly and voluntarily.
Mr. Ramsey asks us to use our discretion under Maryland Rule 8-131(a) to review the issue regardless of his failure to object. See Md. Rule 8-131 ("Ordinarily, an 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." (emphasis added)). We decline to do so.
The right to a jury trial is protected under the Seventh Amendment of the U.S. Constitution, as applied to the states through the Fourteenth Amendment, and Articles 5, 21, and 24 of the Maryland Declaration of Rights. To accept a defendant's waiver of his right to a jury trial, the "trial judge must be satisfied that there has been an intentional relinquishment or abandonment of a known right or privilege." Smith v. State, 375 Md. 365, 379, (2003) (internal quotations omitted). To do so, the trial judge must determine whether the waiver is both voluntary and knowing. State v. Hall, 321 Md. 178, 182, (1990) (citing Martinez v. State, 309 Md. 124, 134, (1987)). However, a trial judge's waiver colloquy "depends upon the facts and circumstances of each case[,]" Kang v. State, 393 Md. 97, 105 (2006).
Because Mr. Ramsey did not make a separate argument under state constitutional provisions and does not contend otherwise, we assume for the purposes of this opinion that these state constitutional provisions are interpreted in sync with the Seventh Amendment.
Mr. Ramsey's waiver of his jury trial right was voluntary. For a jury trial waiver to be voluntary, the defendant must waive his right intentionally and without coercion or duress. Abeokuto v. State, 391 Md. 289, 317 (2006). Before the trial, the circuit court explained to Mr. Ramsey that waiving his jury trial right would mean the judge would decide the case instead. The court asked Mr. Ramsey if anyone was forcing him, threatening him, or had promised him anything to waive his right. Mr. Ramsey responded "No" to each of these questions. Cf. Martinez v. State, 309 Md. 124, 134-35 (1987) (holding a jury trial waiver was not voluntary where the defendant responded yes to a similar question).
We have previously held that even where a trial judge does not ask these questions, the waiver may be voluntary. See Abeokuto v. State, 391 Md. at 320-21 (explaining the trial judge need not ask the defendant about possible coercion because there were no facts from the record demonstrating a reason to). In fact, in Kang v. State, the Maryland Supreme Court held that a trial judge need not ask a defendant about potential coercion or duress unless there are some triggering facts on the record that would raise an issue about the defendant's voluntariness. 393 Md. at 106. Mr. Ramsey points to no such triggering facts that might suggest his waiver was not voluntary; even so, the trial judge asked him various questions to confirm his waiver was intentional and without coercion or duress. Therefore, Mr. Ramsey's jury trial waiver was voluntary.
Mr. Ramsey's jury trial waiver was also knowing. The defendant must only have some knowledge of his jury trial right; he does not need full knowledge of it. State v. Bell, 351 Md. 709, 730 (1998) ("'Knowledge,' in this context means acquaintance with the principles of a jury[.]"). While the trial judge may not have explained some of the specifics of a jury trial, such as the unanimity required for a jury decision, the trial judge's colloquy, the many previous discussions about a jury trial, and the stated strategy behind waiving a jury trial, indicate that Mr. Ramsey's waiver was knowing. See State v. Bell, 351 Md. at 730 (holding the trial judge need not have explained that a jury must reach a unanimous decision).
Mr. Ramsey's counsel discussed a jury trial waiver in court twice: once at a pretrial hearing and once at the trial when Mr. Ramsey made his waiver. Additionally, counsel indicated he and Mr. Ramsey had discussed a jury trial and the strategy behind waiving one multiple times before. Mr. Ramsey even confirmed to the trial judge that he had "many discussions" with his counsel about the jury trial waiver. Further, the trial judge and Mr. Ramsey's counsel had lengthy discussions-in open court and in front of Mr. Ramsey-about the disadvantages of having a jury trial. Mr. Ramsey's counsel explained their strategy behind waiving a jury trial because the nature of the crimes may "inflame" the jurors and lead to bias.
In a similar case, the defendant in State v. Hall argued that the trial judge should have asked him if he understood the nature of a jury trial, how a jury would be selected, that a jury would draw from the county voting rolls, and that he could assist in selecting the jury. 321 Md. 178, 181 (1990). However, the Maryland Supreme Court stated that the trial judge need not advise the defendant as to the specifics of the jury selection process. Id. at 183. Likewise, here, the trial judge was not required to list the specifics of a jury trial's workings for Mr. Ramsey to have knowingly waived his right.
Mr. Ramsey argues that his case is similar to Tibbs v. State, in which the Maryland Supreme Court found the defendant had not waived his right to a jury trial because the colloquy contained only a "naked inquiry" as to whether the defendant knew what a jury trial was. 323 Md. 28, 32 (1991). Conversely, however, the record here demonstrates more than a naked inquiry about whether Mr. Ramsey knew what a jury trial was. See Kang v. State, 393 Md. at 111 ("While the inquiry in the present case is not clothed in the finest cashmere, the colloquy conducted by the trial judge is certainly not a 'naked' inquiry as in Tibbs."). Rather, the court explained that jurors were waiting to hear Mr. Ramsey's case, and a waiver would mean the trial judge would decide guilt or innocence. He then confirmed Mr. Ramsey understood, that it was a legal decision he had made, and that he had discussed it "many" times with his counsel. Additionally, that Mr. Ramsey had a strategy behind electing a bench trial, which his counsel explained in open court, further indicates that Mr. Ramsey understood the right he was waiving.
Therefore, Mr. Ramsey voluntarily and knowingly waived his right to a jury trial.
JUDGMENT OF THE CIRCUIT COURT FOR CHARLES COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
[*] This is an unreported opinion. It may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B).