Cooper v. State

Kyle J. Cooper v. State of Maryland, No. 1500, September Term, 2025. Opinion by Albright, J. CRIMINAL LAW – REVIEW – PRESENTATION AND PRESERVATION IN LOWER COURT OF GROUNDS OF REVIEW – INSTRUCTIONS – OBJECTIONS IN GENERAL – NATURE OF, AND TIME FOR, OBJECTION Where defendant failed to request a hot-blooded-response instruction relative to first- degree assault and failed to object when the court did not give such an instruction, the issue is not preserved for appeal. His request for a hot-blooded-response instruction relative to a different charge does not amount to “substantial compliance” with Maryland Rule 4-325(f). CRIMINAL LAW – DEFENSES – HOT-BLOODED RESPONSE Under Johnson v. State, 269 Md. App. 208 (2026), the defense of hot-blooded response to adequate provocation cannot apply to mitigate first-degree assault to second-degree assault. CRIMINAL LAW – SENTENCING – SENTENCE CAPPING “[W]hen a defendant is charged with a greater offense and a lesser included offense based on the same conduct, with jeopardy attaching to both charges at trial, and defendant is convicted only of the lesser included [offense],” the sentence defendant may receive for the lesser included offense is capped at what the defendant could have received if he had been convicted of the greater charge. Simms v. State, 288 Md. 712, 724 (1980). CRIMINAL LAW – FIRST-DEGREE ASSAULT – MODALITIES There are two modalities by which the State can prove first-degree assault: the “serious bodily injury modality” and the “firearm modality.” Md. Code, Crim. Law (“CR”) § 3- 202. While the serious bodily injury modality of first-degree assault is a lesser included offense of attempted voluntary manslaughter, the firearm modality is not. Dixon v. State, 364 Md. 209, 240–41 (2001). CRIMINAL LAW – AMBIGUITY IN MODALITY OF FIRST-DEGREE ASSAULT When determining whether a record is ambiguous as to which modality of first-degree assault a conviction rested upon, the reviewing court considers, inter alia, whether the jury was instructed on both modalities of first-degree assault; whether the jury returned a general verdict and was not asked to specify a modality on the verdict sheet; and whether the State’s arguments to the jury referenced either modality. If the reviewing court cannot affirmatively determine which modality the conviction rested upon, the ambiguity is resolved in the defendant’s favor. CRIMINAL LAW – INDICTMENT – HOMICIDE Under an indictment pursuant to the statutory formula for attempted murder, even though the indictment spells out attempted murder in the first degree, the accused may be convicted of attempted murder in the first degree, of attempted murder in the second degree, or of attempted voluntary manslaughter. CRIMINAL LAW – SENTENCING – SENTENCE CAPPING When a defendant, charged with attempted first-degree murder, using the statutory short form, and the lesser-included offense of first-degree assault, is acquitted of attempted voluntary manslaughter but convicted of the lesser-included offense of first-degree assault, the sentence defendant can receive for the lesser-included offense of first-degree assault is capped by what he could have received for attempted voluntary manslaughter. That the defendant was not explicitly and separately charged with attempted voluntary manslaughter, i.e., the offense that caps the sentence defendant can receive for the lesser- included offense, does not change this result. By charging defendant with attempted first- degree murder using the statutory short form, the State did charge the defendant with attempted voluntary manslaughter. Circuit Court for Baltimore City Case No. 123284009 REPORTED IN THE APPELLATE COURT OF MARYLAND No. 1500 September Term, 2024 ______________________________________ KYLE J. COOPER v. STATE OF MARYLAND ______________________________________ Leahy, Albright, Kehoe, Christopher B. (Senior Judge, Specially Assigned), JJ. ______________________________________ Opinion by Albright, J. ______________________________________ Filed: October 6, 2026 Pursuant to the Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2026.10.06 15:24:48 -04'00' Gregory Hilton, Clerk  This appeal arises out of a shooting involving Kyle J. Cooper, Appellant, and two men who stole his car. One of the men was killed and the other seriously injured. After a jury trial, Mr. Cooper was convicted of first-degree assault; use of a firearm in a crime of violence; possession of a firearm following a disqualifying conviction; and wearing, carrying, and transporting a firearm on his person and in a vehicle. Mr. Cooper was sentenced to sixty years’ incarceration. On appeal, Mr. Cooper presents two questions for our review,1 which we rephrase and reorder as follows: I. Did the court err in declining to instruct the jury on hot- blooded response to adequate provocation as a mitigation for first-degree assault? II. Did the court impose an illegal sentence for first-degree assault where it exceeded the maximum sentence for attempted voluntary manslaughter? Because we conclude that Mr. Cooper’s challenge to the absence of a hot-blooded- response instruction was not preserved, we do not reach the merits of his first question. We answer Mr. Cooper’s second question in the affirmative. Accordingly, we vacate Mr. Cooper’s sentence and remand for resentencing consistent with this opinion. BACKGROUND The Incident Early in the morning on August 31, 2023, Eric Gill and Wayne Brown were out in 1 Mr. Cooper presents his questions as: 1. Did the court impose an illegal sentence for first-degree assault? 2. Did the court err in refusing to instruct the jury on hot-blooded response to adequate provocation? Baltimore attempting to steal catalytic converters. That same morning, Mr. Cooper woke his mother, Robin Brown,2 to inform her that “somebody just stole [his work] truck.” Shortly after, both mother and son got into Ms. Brown’s car and drove away.3 After they drove a few blocks from home, the pair apparently came across Mr. Cooper’s stolen truck. Inside the truck were Mr. Gill and Mr. Brown. At that point, Mr. Cooper “jumped out” of Ms. Brown’s car and ran down the street towards his truck. As Mr. Cooper neared the stolen vehicle, the individual sitting in the passenger seat jumped out as well. Ms. Brown, who was still in her car, heard gunshots from the vicinity of the truck, and then saw her son firing a gun. After the gunshots rang out, Mr. Cooper’s stolen truck crashed into a vehicle parked on the street. Mr. Cooper got back into Ms. Brown’s car, and she drove them both back home. Eyewitnesses who lived on the street where the shooting occurred reported hearing shots fired and hearing Mr. Cooper yell “give me my sh*t back,” before he got into his mother’s car and fled. A short while later, police and emergency responders arrived at the scene of the shooting, where they found Mr. Gill deceased on the street near the stolen truck. They were later advised that the other victim, Mr. Brown, “had been shot and walked into a 2 There is no relation between the victim, Wayne Brown, and Mr. Cooper’s mother, Robin Brown. 3 According to Ms. Brown’s testimony, she was headed towards Home Depot, and, in order to “keep [her] son safe[,]” she brought Mr. Cooper along. However, the trial court did not find this story to be credible, stating at sentencing that, “[t]o get in the car and have her son [] get in the car to go to Home Depot after her son advises her that [] his truck, [] which is his livelihood, is stolen makes no sense.” 2 hospital seeking treatment.” Officers also recovered several shell casings on the ground. Two hours after the incident, after police had already been at the scene, Mr. Cooper called 911 to report his vehicle stolen. He told the operator that “there [were] no injuries, no gun play, no carjacking or anything like that, I came outside and my car was gone.” Mr. Cooper was later arrested for the shooting of Mr. Brown and the killing of Mr. Gill. He was then indicted for murder; attempted murder; first-degree assault; use of a firearm in a crime of violence; possession of a firearm following a disqualifying conviction; and wearing, carrying, and transporting a firearm on his person and in a vehicle. Mr. Cooper’s Trial Mr. Cooper was tried before a jury in the Circuit Court for Baltimore City on July 11–18, 2024, in a joint trial with his mother.4 The State called as witnesses the investigating police officers as well as several eyewitnesses. While Ms. Brown testified in her own defense, Mr. Cooper did not and presented no other evidence. After the close of evidence, the parties conferenced with the court regarding which mitigation instructions should be read to the jury, focusing first on those applicable to homicide. The court determined that it would give a self-defense instruction. The basis for this was, as Mr. Cooper pointed out, that gunshots were fired at him and he fired back. Mr. Cooper also requested an instruction on hot-blooded response to adequate 4 Ms. Brown was tried as an accessory after the fact for the murder of Mr. Gill and attempted murder of Mr. Brown, as well as with one count of wearing, carrying, or transporting a handgun in a vehicle. She was convicted only of the firearms charge. 3 provocation, as that applied to homicide. The specific instruction Mr. Cooper asked for was Maryland Criminal Pattern Jury Instruction (“MPJI-CR”) 4:17.4.5 The court determined that the evidence did not generate this instruction and declined to give it. 5 The pattern instruction requested by the defense, MJPI-CR 4:17.4 (“Homicide-- First Degree Premeditated Murder, Second Degree Specific Intent Murder, and Voluntary Manslaughter (Hot Blooded Response to Adequate Provocation)”), states: Killing in hot blooded response to legally adequate provocation is a mitigating circumstance. In order for this mitigating circumstance to exist in this case, the following five factors must be present: (1) the defendant reacted to something in a hot blooded rage, that is, the defendant actually became enraged; (2) the rage was caused by something the law recognizes as legally adequate provocation, that is, something that would cause a reasonable person to become enraged enough to kill. In this case, the only act that you can find to be adequate provocation is [a battery by the victim upon the defendant] [a fight between the victim and the defendant] [an unlawful warrantless arrest of the defendant by the victim, which the defendant knew or reasonably believed was unlawful]; (3) the defendant was still enraged when (pronoun) killed the victim, that is, the defendant’s rage had not cooled by the time of the killing; (4) there was not enough time between the provocation and the killing for a reasonable person’s rage to cool; and (5) the victim was the person who provoked the rage. In order to convict the defendant of murder, the State must prove that the mitigating circumstance of hot blooded provocation was not present in this case. This means that the State must persuade you, beyond a reasonable doubt, that at least one of the five factors was absent. If the State has failed to persuade you that at least one of the five factors was absent, you cannot find the defendant guilty of murder, but may find the defendant guilty of voluntary manslaughter. In order to convict the defendant of murder, the State must prove that the defendant did not act in hot blooded response to legally adequate provocation. If the defendant did act in hot blooded response to legally adequate provocation, the verdict should be guilty of voluntary manslaughter and not guilty of murder. 4 [DEFENSE]: -- there’s one more request. And it’s given the Court Ruling on the other -- ... [DEFENSE]: It’s 4:17.4. The jury instruction on hot blooded response to a legally adequate -- ... [DEFENSE]: Your Honor, we know that the Court ruled on the self-defense, imperfect self-defense, but I brought to the Court’s attention to hot blooded response to legally adequate provocation. And I believe the State -- Mr. Cooper did act in response to some type of rage in which he ran these individuals down. So we talk about the rage, we talk about legally adequate provocation which comes back to the self-defense. So I believe there is evidence, an indicia of evidence to (indiscernible) that this particular jury instruction should be also given. [STATE]: And, Your Honor, I don’t think that Defense could have both ends of the stick. If Defense is arguing that they got into this vehicle to go to Home Depot, there was no legally adequate justification for this to occur. ... THE COURT: . . . There’s no evidence that the Defendant became enraged. ... THE COURT: The rage was caused by something the law recognizes as legally adequate provocation. That is something that would cause a reasonable person to become enraged enough to kill or inflict serious bodily harm. The only act that you can find to be adequate provocation under the evidence in this case is the fact that the victim stole the Defendant’s car. ... THE COURT: I’m looking at the fill in, because in the fill in they have here in the bracket is a battery by the victim upon the Defendant, or a fight between the victim and the Defendant, an unlawful warrantless arrest of the Defendant by the victim which the Defendant knew, or reasonably was unlawful. Your situation doesn’t fit into any of those bracketed fill ins. [DEFENSE]: I think when we talk about a battery by the Defendant, means battery by the victim on Defendant once they allude to the gunshots by the (indiscernible). The arguments of the gunshots that were fired at Mr. Cooper prior to Mr. Cooper firing back. ... THE COURT: . . . there’s no evidence that the Defendant was ever enraged. 5  The victim was the person who provoked the rage. I’m not going to give that instruction. I’m giving the self-defense instruction. I don’t think there’s sufficient evidence to give this instruction. (Emphasis added). The court then turned to first-degree assault. On this count, the only mitigation instruction that Mr. Cooper requested was perfect self-defense. THE COURT: Now, the first degree assault, take out the not legally justified. I mean, the brackets. So we need the self-defense for the first-degree assault as well. ... THE COURT: So how do you want that to read? So after the first degree assault, how do you want the defense of self-defense put in there? [Defense counsel]. ... [DEFENSE]: And, then, in reading self-defense, but make the second sentence that self-defense is a complete defense to assault in the first degree and you are required to find the Defendant not guilty if all the following four factors are present. And then I believe prong one, the Defendant was not the aggressor for assault. I think that’s enough. We can stop there. That’s my initial thought at this point. THE COURT: Well, why would that be different than the other self-defense? [DEFENSE]: Because one’s for murder, which you allow – I’m thinking, assault with a deadly weapon, if we used deadly weapon on it. So I’m just – that’s what my thought is. THE COURT: I think it would have to be the same as it is for the murder. [DEFENSE]: That’s fine. That’s fine. After the instructions were read, Mr. Cooper did not lodge a specific objection to the court’s first-degree assault instruction, but rather “piggy-backed” onto the objection Ms. Brown made when the court failed to include hot-blooded response among the court’s mitigation instructions for homicide, i.e., first-degree murder, second-degree murder, attempted first-degree murder, or attempted second-degree murder, as those 6 instructions applied to Mr. Cooper: THE COURT: All right. Counsel, do you wish to come up? ... [MS. BROWN’S COUNSEL]: Your honor, I just want to make sure, would note my exception, or objection, for not giving the hot blooded response or legally out of provocation as to Mr. Cooper because it does correlate to [Ms. Brown] based on what she charged with[.] . . . [DEFENSE]: And just for the record, Your Honor, I would piggyback off of [Ms. Brown’s counsel] in the hot blooded response, as far as not . . . (inaudible). Mr. Cooper was ultimately convicted of first-degree assault; use of a firearm in a crime of violence; possession of a firearm following a disqualifying conviction; and wearing, carrying, and transporting a firearm on his person and in a vehicle. He was acquitted of first-degree murder, second-degree murder, voluntary manslaughter, attempted first-degree murder, attempted second-degree murder, and attempted voluntary manslaughter. The court sentenced Mr. Cooper to a total of sixty years of incarceration. This included twenty-five years for first-degree assault; twenty years for use of a handgun in the commission of a crime of violence, which was to run consecutively to the sentence for first-degree assault; fifteen years for possession of a handgun after a disqualifying felony, which was to run consecutively to the sentence for use of a handgun in a crime of violence; and three years for wearing, carrying, and transporting a handgun in a vehicle, which was to run concurrently with use of handgun in the commission of a crime of violence. The trial court merged the wearing, carrying, and transporting a handgun on one’s person charge with the use of handgun in the commission of a crime of violence. 7  This timely appeal followed. DISCUSSION I. Preservation of Jury Instruction Argument Mr. Cooper contends that the circuit court erred in denying his request to instruct the jury on the theory of hot-blooded response to adequate provocation (“hot-blooded response”): “Although [Mr. Cooper] was ultimately acquitted of murder, voluntary manslaughter, attempted murder, and attempted voluntary manslaughter, the error was not harmless because hot-blooded response to adequate provocation could potentially have mitigated [Mr. Cooper’s] first-degree assault conviction to second-degree assault.” Mr. Cooper cites Christian v. State, 405 Md. 306, 310 (2008), in support of the contention that hot-blooded response can apply to mitigate first-degree assault to second- degree assault. Pointing to Maryland Rule 4-325(f), the State counters that Mr. Cooper’s hot- blooded-response claim is not preserved. Below, Mr. Cooper requested MPJI-CR 4:17.4, “which only addresses mitigating first- or second-degree murder to voluntary manslaughter.” Regarding first-degree assault, i.e., the charge of which Mr. Cooper was found guilty, Mr. Cooper “requested (and received) a perfect self-defense instruction, but he did not request or receive an instruction on the mitigation defense of imperfect self- defense[.]” Additionally, and unlike the argument Mr. Cooper now makes, below he “disclaimed” the notion that he was acting out of legally adequate provocation, positing instead that he was entitled to defend himself because gunshots were fired at him prior to his firing back. 8  Secondarily, the State argues that hot-blooded response does not apply to mitigate first-degree assault to second-degree assault here. According to the State, Mr. Cooper cannot rely on Christian. Following the abrogation of Roary v. State, 385 Md. 217 (2005) by Jones v. State, 451 Md. 680 (2017), the State contends, Christian “can no longer be considered good law” as to its proposition that hot-blooded response could mitigate first- degree assault to second-degree assault. Because Christian was based exclusively on Roary, Christian “cannot survive the abrogation of Roary by Jones.” The State also draws our attention to Johnson v. State, 269 Md. App. 208, 234–35 (2026), cert. denied, 2026 WL 2255214 (July 21, 2026), where we confirmed that “hot-blooded response to adequate provocation is no longer applicable to first-degree assault.” The State concludes that Johnson is dispositive of Mr. Cooper’s hot-blooded response claim. Mr. Cooper replies that his hot-blooded-response instruction claim is preserved. He contends that an objection that “substantially complies” with Rule 4-325(f) “is sufficient to preserve an issue for appellate review[,]” and further, that he met the three conditions for “substantial compliance” required by Gore v. State, 309 Md. 203, 209 (1987). First, Mr. Cooper contends, he “clearly requested the hot-blooded response instruction” and disagrees that the hot-blooded-response instruction he requested pertained only to the homicide count. Second, “the reasons why [Mr. Cooper’s] counsel wanted the instruction were clear on the record, despite the trial court’s disinclination to hear those reasons.” Third, given “the trial court’s abject disinterest in [Mr. Cooper’s counsel’s] reasoning,” any renewal of his objection after the jury was instructed would have been “futile or useless.” 9  We agree with the State that Mr. Cooper’s hot-blooded response claim is not preserved. “No 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 objects and the grounds of the objection.” Md. Rule 4-325(f). To be sure, Mr. Cooper requested an instruction on hot-blooded response, but that instruction, MPJI-CR 4:17.4, pertained only to mitigating first- or second-degree murder to voluntary manslaughter. Mr. Cooper did not request a hot-blooded response instruction relative to first-degree assault. And when the court had concluded its instructions, Mr. Cooper raised no objection to the court’s not including hot-blooded response among the mitigation instructions applicable to first-degree assault. Instead, Mr. Cooper only “piggybacked” onto Ms. Brown’s objection to the lack of hot-blooded- response instruction relative to the homicide charges that Mr. Cooper faced. Mr. Cooper’s contention that he substantially complied with Md. Rule 4-325(f) is unpersuasive. “Substantial compliance” with Rule 4-325(f) requires three conditions: there must be an objection to the instruction; the objection must appear on the record; the objection must be accompanied by a definite statement of the ground for objection unless the ground for objection is apparent from the record and the circumstances must be such that a renewal of the objection after the court instructs the jury would be futile or useless. Gore, 309 Md. at 209. Here, Mr. Cooper never requested a hot-blooded-response instruction relative to first-degree assault. Nor did he object when the court failed to give such an instruction. That Mr. Cooper requested a hot-blooded-response instruction relative to a different charge does not amount to “substantial compliance.” His appellate 10 claim is unpreserved.6 II. Legality of Sentence for First-Degree Assault Mr. Cooper next contends that the sentence he received for first-degree assault— twenty-five years’ incarceration—is illegal. He argues that because he was acquitted of attempted voluntary manslaughter, of which first-degree assault is a lesser-included offense, it was illegal for his sentence for first-degree assault to exceed the ten-year statutory maximum for voluntary manslaughter. Although Mr. Cooper acknowledges that there are multiple modalities of first-degree assault, only one of which is a lesser- included offense of attempted voluntary manslaughter, he contends that because the record does not specify which modality his conviction rested upon, we must resolve any 6 Even if Mr. Cooper had requested a hot-blooded-response instruction relative to first-degree assault, we would agree with the State that Mr. Cooper was not entitled to such an instruction. The defense of hot-blooded response to adequate provocation does not apply to mitigate first-degree assault to second-degree assault. Johnson, 269 Md. App. at 234–35. Mitigation defenses like hot-blooded response traditionally applied only to homicide. Id. at 228. In Christian, 405 Md. at 333, however, our Supreme Court held that hot-blooded response to adequate provocation “could apply to mitigate first degree assault where those assaults could now supply the malice necessary for felony-murder if the victim dies.” This holding was based on Roary, where our Supreme Court concluded that second-degree felony murder could be predicated on first-degree assault in some circumstances. See Roary, 385 Md. at 236 (“We hold[] that an assault in the first degree, when committed in a manner inherently dangerous to human life, as in this case, may be a predicate felony for second-degree felony-murder.”). But Roary was overturned by Jones. See Jones, 451 Md. at 694 (“We take this opportunity to re-examine Roary v. State, to overrule it and to adopt the so-called ‘merger doctrine’ in Maryland.” (omitting footnote)). And with Jones, as we would later confirm in Johnson, hot-blooded response could no longer mitigate first-degree assault. See Johnson, 269 Md. App. at 234 (“While the Court did not expressly overrule Christian in Jones, it did not have to do so for us to conclude that hot-blooded response to adequate provocation is no longer applicable to first-degree assault.”). 11 ambiguity in his favor and vacate his sentence. The State contends that limiting Mr. Cooper’s first-degree assault sentence to the statutory cap for attempted voluntary manslaughter was not required here for two reasons. First, the record unambiguously showed that Mr. Cooper’s first-degree assault conviction was based upon the firearm modality, which is not a lesser-included offense of attempted voluntary manslaughter. Second, even if the modality is ambiguous, sentence capping applies only to offenses affirmatively charged by the State. Sentence capping does not apply to attempted voluntary manslaughter, which was generated by Mr. Cooper’s theory of imperfect self-defense. The doctrine of “capping” a sentence has its roots in the principle of double jeopardy, which protects defendants from being punished multiple times for the same offense. Out of the Double Jeopardy clause formed the “merger” doctrine, which protects a defendant from being punished for a lesser included offense when he is also convicted of its greater offense. In that circumstance, the sentence for the lesser included offense merges into the sentence for the greater offense. Moore v. State, 198 Md. App. 655, 689 (2011). Although merger does not apply when a defendant is convicted of the lesser- included offense but acquitted of the greater, the logic behind merger is what drives the doctrine of sentence capping. Sentence capping establishes that [W]hen a defendant is charged with a greater offense and a lesser included offense based on the same conduct, with jeopardy attaching to both charges at trial, and when the defendant is convicted only of the lesser included charge, he may not receive a sentence for that conviction which exceeds the maximum sentence which could have been imposed had he been convicted of the greater charge. 12 Simms v. State, 288 Md. 712, 724 (1980) (emphasis added).7 Here, Mr. Cooper was convicted of first-degree assault and acquitted of attempted voluntary manslaughter, which are, respectively, lesser-included and greater offenses of each other under specific circumstances. There are two modalities through which the State can prove first-degree assault: the “serious bodily injury modality” and the “firearm modality.” Md. Code, Crim. Law (“CR”) § 3-202.8 While the serious bodily injury modality of first-degree assault is a lesser included offense of attempted voluntary manslaughter, the firearm modality is not. Dixon v. State, 364 Md. 209, 240–41 (2001). This is so because attempted voluntary manslaughter requires a specific intent to kill, which necessarily subsumes the intent to cause serious physical injury required by the serious bodily injury modality of first-degree assault. Id. at 240. By contrast, the firearm modality requires proof of an additional element—the use of a firearm—that attempted voluntary manslaughter does not. Id. at 240–41. To determine whether Mr. Cooper’s acquittal on attempted voluntary manslaughter should have capped his sentence for first-degree assault, we must “discern, if possible, under which modality of the first-degree assault statute” he was convicted. See Dixon, 364 Md. at 243. We make this determination by reviewing the entire record, 7 We use the term “sentencing cap,” or “penalty cap” as shorthand for the doctrine first discussed in Simms, 288 Md. at 724. Although Simms did not employ that specific terminology, later Maryland cases have described the doctrine using that phrasing. See Dixon v. State, 364 Md. 209, 223 (2001). 8 Under subsection (b)(1) of CR § 3-202, “[a] person may not intentionally cause or attempt to cause serious physical injury to another.” CR § 3-202(b)(1). Under subsection (b)(2), “[a] person may not commit an assault with a firearm[.]” CR § 3- 202(b)(2). 13 including which jury instructions were given, any relevant remarks made by the prosecutor, and the verdict returned by the jury. Id. at 245. If any ambiguity exists as to the factual basis for a conviction, the issue must be resolved in the defendant’s favor. Wright v. State, 255 Md. App. 407, 418 (2022). Here, the record is ambiguous as to which modality of first-degree assault Mr. Cooper’s conviction rested upon. The trial judge instructed the jury on both modalities. The jury returned a general verdict and was not asked to specify a modality on the verdict sheet. The State’s arguments to the jury did not reference either modality. There is nothing in the record that clearly indicates which modality the jury intended to serve as the basis of Mr. Cooper’s conviction. Because we cannot say for sure that Mr. Cooper’s conviction rested upon the firearm modality, we must resolve the ambiguity in Mr. Cooper’s favor. See Dixon, 364 Md. at 248–49. His sentence for first-degree assault was illegal and should have been capped at the statutory maximum for attempted voluntary manslaughter. The State makes two attempts to overcome this conclusion. First, the State points to Mr. Cooper’s convictions on other firearm-related offenses and argues, based on the fact of those convictions, that the record unambiguously shows that the jury intended to convict Mr. Cooper of the firearm modality of first-degree assault. However, in Dixon, under very similar circumstances, the court found the record to be ambiguous as to the modality of first-degree assault even despite other accompanying firearm convictions: It is clear that the State was emphasizing the use of a handgun regarding the first-degree assault, but the trial judge instructed regarding both modalities of first degree assault. The jury returned a general verdict. It is apparent then 14  that we cannot determine under which modality the jury convicted Petitioner of first degree assault. Dixon, 364 Md. at 248. Therefore, we remain unpersuaded. In a second attempt to overcome the above conclusion, the State argues that regardless of the modality, sentence capping does not apply here because attempted voluntary manslaughter was not affirmatively charged by the State; rather it was generated because of Mr. Cooper’s self-defense contention. Specifically, the State contends that the State here never made a charging decision where it ‘elected to prosecute’ Mr. Cooper for attempted voluntary manslaughter alongside first-degree assault. Rather, the State charged Mr. Cooper with attempted first and second-degree murder. The prospect of attempted voluntary manslaughter was raised in the case only because Mr. Cooper requested the court instruct the jury on it as a mitigated form of culpability for attempted homicide. While it’s true that sentence capping applies only where the greater offense was “charged,” Simms, 288 Md. at 724, we disagree with the contention that the State did not “elect to prosecute” Mr. Cooper for attempted voluntary manslaughter. There is no dispute that Mr. Cooper was charged with attempted murder in the first-degree, and “[i]t is well settled that under an indictment pursuant to the statutory formula [for homicide], even though it spells out murder in the first degree, the accused may be convicted of murder in the first degree, of murder in the second degree, or of manslaughter.” See Dishman v. State, 352 Md. 279, 289 (1998) (cleaned up) (emphasis altered). Therefore, by charging Mr. Cooper with attempted murder in the first-degree, the State did also inherently charge him with attempted voluntary manslaughter. That the indictment did not specifically list attempted voluntary manslaughter does not change our analysis or the 15 result. Mr. Cooper’s sentence therefore could not exceed the statutory maximum for attempted voluntary manslaughter—ten years’ imprisonment. His sentence of twenty-five years’ imprisonment for first-degree assault is illegal and must be vacated. APPELLANT’S SENTENCE FOR FIRST- DEGREE ASSAULT VACATED AND CASE REMANDED FOR RESENTENCING CONSISTENT WITH THIS OPINION. JUDGMENTS OF THE CIRCUIT COURT FOR BALTIMORE CITY OTHERWISE AFFIRMED; COSTS TO BE PAID BY THE MAYOR AND CITY OF BALTIMORE. 16