Biggus v. State

ELDRIDGE, Judge. Maryland Code (1957, 1987 Repl.Vol., 1990 Cum.Supp.), Art. 27, § 464B, creates the crime or crimes of “third degree sexual offense.” The statute sets forth six different types of activities which constitute “third degree sexual offense.” The same conduct of the defendant in this criminal case fell within two of the six types of activities proscribed by § 464B. The trial court, being of the view that each type of activity constituted a separate and distinct crime, imposed the maximum ten-year prison sentence under the statute for each type of activity and made the sentences consecutive, for a total of twenty years imprisonment for violation of § 464B. The principal issue before us is whether the General Assembly in Art. 27, § 464B, intended to create a single offense which can be committed in different ways or, instead, intended to create several distinct offenses.

If the statute creates only one offense, double jeopardy principles would require that the same acts of the defendant not be subject to multiple punishments under the statute. See, e.g., Middleton v. State, 318 Md. 749, 757, 760-761 , 569 A.2d 1276, 1279-1281 (1990); Randall Book Corp. v. State, 316 Md. 315, 322-324 , 558 A.2d 715, 719-720 (1989). This case also presents the questions of whether the defendant’s convictions for the common law offense of battery and the statutory offense of carrying a weapon openly with an intent to injure (Art. 27, § 36) merged, for ³⁴⁴ sentencing purposes, into the conviction or convictions under Art. 27, § 464B. I. On February 7,1987, the defendant Lloyd Eugene Biggus lured the victim, a thirteen-year-old boy whose nickname was “Bobby,” to Biggus’s apartment, claiming to need Bobby’s help in clearing some boxes out of the apartment.

The State’s evidence showed that once Bobby was inside the apartment, Biggus displayed a “utility knife or a razor knife” to the victim and told him to take off his clothes or Biggus would “cut [him] up and put [him] in the trunk.” The testimony at trial also indicated that Biggus displayed a hypodermic needle. The victim removed his clothing, and thereafter Biggus used his finger to penetrate the victim’s anus. Biggus momentarily left the victim alone in the bathroom where the sexual assault had occurred. The victim, in a state of complete undress, attempted to flee from the apartment.

He was, however, prevented from leaving by Biggus, who “grabbed” the victim and “punched” him on the head in order to subdue him. At this point, Biggus’s wife entered the room and told him to release the victim. Biggus complied, and the victim fled the apartment. A criminal information containing eight counts was filed against Biggus in the Circuit Court for Frederick County.

Count one charged “third degree sexual offense” in that Biggus “unlawfully did engage in sexual contact with” Bobby “by employing and displaying a dangerous and deadly weapon----” See Art. 27, § 464B(a)(l)(i). The second count also charged “third degree sexual offense” in that Biggus “unlawfully did engage in sexual contact with” Bobby, “a child under the age of fourteen (14) years, the defendant performing the contact [being] four (4) or more years older than the victim____” See Art. 27, § 464B(a)(3). Count three charged a fourth degree sexual offense in violation of Art. 27, § 464C; count four charged attempted ³⁴⁵ second degree sexual offense in violation of Art. 27, § 464A; count five charged attempted sodomy, and count six charged attempted unnatural and perverted sexual practices. Biggus was accused in count seven with a violation of Art. 27, § 36(a), which prohibits, inter alia, carrying a weapon openly with the intent unlawfully to injure another person.

Common law battery was charged in count eight. 1 Prior to the commencement of Biggus’s trial, the State nol prossed counts five and six (attempted sodomy and attempted unnatural and perverted sexual practices). The defendant pled not guilty to the remaining counts and elected a jury trial. At the close of the State’s case, the defendant’s motion for judgment of acquittal was granted as to count four, charging an attempted second degree sexual offense. The jury returned verdicts of guilty on the remaining counts.

As previously indicated, the circuit court imposed two consecutive ten-year prison sentences for the convictions under the first two counts, each charging “third degree sexual offense.” The circuit court merged the conviction on count three (fourth degree sexual offense) into the third degree sexual offense conviction on count one. Biggus was sentenced to a third consecutive ten year prison sentence for battery. For the conviction on the weapons charge, Biggus was sentenced to three years imprisonment, to run concurrently with the three ten-year consecutive sentences. The Court of Special Appeals affirmed in an unreported opinion.

Regarding the two convictions for third degree sexual offense, the intermediate appellate court agreed with the circuit court that each subsection of Art. 27, § 464B, sets forth a distinct and separately punishable offense, even though there is only a single incident of sexual contact. ³⁴⁶ The Court of Special Appeals also rejected the defendant’s arguments that the battery conviction and the conviction for carrying a weapon openly with intent to injure merged into a conviction for third degree sexual offense. Thereafter, we granted the defendant’s petition for a writ of certiorari. 316 Md. 425 , 559 A.2d 375 (1989).

II

The statutory language and legislative history refute the view espoused by both courts below that Art. 27, § 464B, creates distinct and separately punishable offenses based on the same sexual contact. The definition of a “third degree sexual offense” is set forth in subsection (a) of § 464B, and the penalty is set forth in subsection (b). Subsection (a) provides as follows: “§ 464B. Third degree sexual offense. “(a) What Constitutes.—A person is guilty of a sexual offense in the third degree if the person engages in sexual contact: (1) With another person against the will and without the consent of the other person, and: (1) Employs or displays a dangerous or deadly weapon or an article which the other person reasonably concludes is a dangerous or deadly weapon; or (ii) Inflicts suffocation, strangulation, disfigurement or serious physical injury upon the other person or upon anyone else in the course of committing that offense; or (iii) Threatens or places the victim in fear that the victim or any person known to the victim will be imminently subjected to death, suffocation, strangulation, disfigurement, serious physical injury, or kidnapping; or (iv) Commits the offense aided and abetted by one or more other persons; or (2) With another person who is mentally defective, mentally incapacitated, or physically helpless, and the person knows or should reasonably know the other per ³⁴⁷ son is mentally defective, mentally incapacitated, or physically helpless; or (3) With another person who is under 14 years of age and the person performing the sexual contact is four or more years older than the victim.” The basic language of subsection (a), that one is guilty of a sexual offense in the third degree if he engages in sexual contact in the following ways, on its face appears to create a single offense.

In the subsequent language setting forth the six different ways in which the sexual contact is unlawful, each of the six paragraphs beginning with (l)(i) and ending with (3) are separated by the word “or.” This clearly indicates alternative ways in which the single offense can be committed. Moreover, the Legislature was certainly aware that there could be some overlap and that the same sexual contact could fall within two or more of the six paragraphs. For example, sexual contacts falling within (a)(l)(i) will also usually fall within (a)(l)(iii). Nevertheless, the Legislature employed language indicating that a single offense was being created.

This conclusion is reinforced by Art. 27, § 461C, prescribing the general form of the charging document for rape or a sexual offense. Section 461C states: § 461C. General form of indictment, information or warrant for rape or sexual offense; bill of particulars. “(a) In any indictment, information, or warrant charging rape or a sexual offense, it shall be sufficient to use a form substantially to the following effect: ‘That A-B on the.......day of........., 19____, in the County (City) aforesaid did unlawfully commit a rape or sexual offense upon C-D, in violation of Article 27, Section (here state section violated), of the Annotated Code of Maryland; contrary to the form of the Act of Assembly in such case made and provided and against the peace, government and dignity of the State.’ (b) In any case in which this general form of indictment, information, or warrant is used to charge a rape or ³⁴⁸ a sexual offense, the defendant is entitled to a bill of particulars specifically setting forth the allegations against him.” The language of § 461C reflects the intent that the sections of the “Sexual Offenses” subtitle of Article 27 which define substantive offenses, namely §§ 462, 463, 464, 464A, 464B, and 464C, were each intended to define a single offense. 2 The statute equates “a rape” or “a sexual offense” with the section violated. The specific manner in which that section was violated, or the specific subsection, is obviously not contemplated as the offense.

Instead, it is a detail to be supplied by the statutory right to a bill of particulars if a bill is requested by the defendant. See State v. Mulkey, 316 Md. 475, 481-482, 489 , 560 A.2d 24, 27, 30-31 (1989). The legislative history underlying the current “Sexual Offenses” subtitle of Art. 27 confirms that § 464B was intended to create a single offense. Former Maryland Senate President Steny H. Hoyer, now a member of the United States House of Representatives, chaired a Special Committee on Rape and Related Offenses.

Maryland’s consolidated sex offense statutory scheme, consisting of the “Sexual Offenses” subtitle of Article 27, was the product of this committee. In order to explain the workings of the new legislation, Senator Hoyer and others prepared a document entitled New Rape and Sexual Offense Legislation, dated July 1, 1976. The document contained definitions and charts which described the various provisions of the sexual offense legislation. The chart illustrating § 464B clearly shows that the different ways of violating the provision were intended to be alternative methods which result in the commission of only one offense, regardless of the fact that a certain act meets the requirements of more than one alternative method.

See Rape and Other Sexual Offense Law Reform in Maryland, 1976-1977, 7 U.Balt.L.Rev. 151, ³⁴⁹ 167-169 (1977) (charts prepared by the Hon. Steny Hoyer reprinted as an appendix). Courts elsewhere, in construing statutes similar to Art. 27, § 464B, have reached similar conclusions. In People v. Johnson, 406 Mich. 320 , 279 N.W.2d 534 (1979), the Supreme Court of Michigan addressed the issue of whether the legislature, in enacting the first-degree criminal sexual conduct statute, Mich.Comp.Laws § 750.520b, “intended] that a single sexual penetration, accompanied by more than one of the statute’s enumerated special circumstances, [would] result in multiple criminal charges for purposes of ... conviction and sentencing.” 406 Mich, at 323 , 279 N.W.2d at 535 .

The court found nothing in the language of the statute or in the legislative history to suggest that the legislature intended multiple convictions based on a single act of penetration. 406 Mich, at 330-331 , 279 N.W.2d at 538 . The court held that “[t]he fact that a sexual penetration happens to be accompanied by more than one of the aggravating circumstances enumerated in the statute may well ease the burden upon the prosecution in attaining a conviction under [the statute], but it may give rise to only one criminal charge for purposes of ... conviction, and sentencing.” Ibid. See also People v. Rogers, 142 Mich. App. 88 , 368 N.W.2d 900 (1985).

Cases in other jurisdictions are to the same effect. See, e.g., People v. Collins, 54 Cal.2d 57, 59 , 4 Cal.Rptr. 158, 160 , 351 P.2d 326, 328 (1960); People v. Craig, 17 Cal.2d 453 , 110 P.2d 403 (1941); George v. State, 488 So.2d 589 (Fla.App.1986); State v. Ponte-Alfonzo, 348 N.W.2d 734, 736 (Minn.1984); State v. Smith, 299 N.W.2d 504, 506 (Minn.1980). Finally, in construing a statute dealing with a different type of criminal activity, but structured very much like Art. 27, § 464B, this Court has held that the statute creates a single offense which can be committed in alternative ways. See Hagans v. State, 316 Md. 429, 438 , 559 A.2d 792, 796 (1989); Rice v. State, 311 Md. 116 , 532 A.2d 1357 (1987); Jones v. State, 303 Md. 323, 326-327 , 493 A.2d 1062 , 1063- ³⁵⁰ 1064 (1985), all dealing with the consolidated theft statute, Art. 27, § 342.

In the present case the defendant Biggus was found guilty of a single incident of unlawful sexual contact. Therefore, he was subject to a single maximum prison term of ten years for violating Art. 27, § 464B.

III

Unlike the issue dealt with in part II above, the question of whether separate sentences should have been imposed for a third degree sexual offense and for battery does not involve the examination of a statutory provision to determine whether a single offense or multiple offenses were created. Third degree sexual offense and battery are clearly distinct criminal offenses, even if based on the same act or acts. The former is entirely a creature of statute, Art. 27, § 464B. The latter is a common law offense which has not been addressed by statute.

Nevertheless, when the same act or acts of the defendant constitute different criminal offenses or different degrees of the same offense, Maryland common law principles will often require that one offense be merged into the other for sentencing purposes, so that separate sentences are not imposed for the same act or acts. The general matter of merger, and the standards for determining whether one offense should merge into another for purposes of sentencing, were extensively reviewed in Williams v. State, 323 Md. 312 , 593 A.2d 671 (1991), just filed. See also, e.g., Snowden v. State, 321 Md. 612 , 583 A.2d 1056 (1991); Monoker v. State, 321 Md. 214 , 582 A.2d 525 (1990). The usual standard for determining whether one offense merges into another, where convictions on both are based on the same act or acts, is the so-called “required evidence test.” This test “focuses upon the elements of each offense; if all of the elements of one offense are included in the other offense, so that only the latter offense contains a distinct element or distinct elements, the former ³⁵¹ merges into the latter.” State v. Jenkins, 307 Md. 501, 517 , 515 A.2d 465, 473 (1986).

Under this test, it is clear that the battery conviction merged into the third degree sexual offense conviction, and that a separate sentence should not have been imposed for battery. With respect to common law battery, “ ‘[i]t is well settled that any unlawful force used against a person of another, no matter how slight, will constitute a battery.’ ” Vogel v. State, 315 Md. 458 , 460-461 n. 3, 554 A.2d 1231 , 1232 n. 3 (1989), quoting Kellum v. State, 223 Md. 80, 85 , 162 A.2d 473, 476 (1960). See Snowden v. State, supra, 321 Md. at 617, 583 A.2d at 1059 . In addition,