Cortez v. State

BLOOM, Judge. The State’s Attorney for Anne Arundel County filed a two count information charging appellant, Gregorio Aldape Cortez, with “Assault and Battery” (Count I) and Fourth Degree Sexual Offense (Count II). At a bench trial in the Circuit Court for Anne Arundel County, appellant was convicted of a fourth degree sexual offense and battery. 1 The court imposed the maximum prison sentence, one year, for the sex offense and a concurrent four year sentence for battery. In this appeal from those judgments, appellant asserts that battery is a lesser included offense in fourth degree sex offense and, as such, merges into the fourth degree sex offense, thereby precluding a separate sentence for assault and battery.

The State contends that the convictions were based on “separate insults” to the person of the victim and, ³⁶¹ therefore, do not merge. Our conclusion is that, because we cannot tell whether the trial judge did find that appellant committed a battery by the use of force separate and distinct from that used to commit the fourth degree sexual offense, we must resolve the doubt in favor of appellant and vacate the sentence for battery. The victim, a fourteen year old girl, testified that she visited the home of appellant with a fifteen year old girl friend whose mother knew appellant. Appellant’s television set was in his bedroom and the two girls went into the bedroom and sat on the bed to watch television.

When the victim’s girl friend left the room, appellant grabbed her arms, threw her down on the bed, straddled her, held her arms over her head, immobilizing them, and then put his hand under her shirt. He squeezed her breast and hurt it. He tried to put his hand down her pants. She told him to stop and yelled for help.

Afterward, she had red bruises on her arms and bruises on her right breast. Appellant’s version was that the sexual contact or touching was consensual. That version was supported by the victim’s girl friend, who testified that the victim consented to the touching, having agreed in advance that for a sum of money to be paid by appellant he would be allowed.to touch her for a limited time. Appellant presented his merger argument at sentencing, relying on State v. Lancaster, 332 Md. 385 , 631 A.2d 453 (1993), which had been decided only a few months earlier.

The State’s Attorney conceded that she was not familiar with that case, and the trial judge was likewise unfamiliar with it. He said he would read the case “before the day is out.” It is obvious from the record, however, that he did not read it before pronouncing sentence. In State v. Lancaster, the Court of Appeals held that a conviction for perverted sex practice, based on evidence that appellant performed fellatio on a fifteen year old boy, merged into a conviction for fourth degree sexual offense based upon the same evidence, appellant being more than four years older ³⁶² than the boy on whom he performed the oral sex act. The Court pointed out that “ ‘[u]nder settled Maryland common law, the usual rule for deciding whether one criminal offense merges into another or whether one is a lesser included offense of the other, ... when both offenses are based on the same act or acts, is the so called “required evidence test.” ’ ” In re Montrail M., 325 Md. 527, 531 , 601 A.2d 1102, 1104 (1992), quoting Williams v. State, 323 Md. 312, 316 , 593 A.2d 671, 673 (1991).

See Eldridge v. State, 329 Md. 307, 319 , 619 A.2d 531, 537 (1993); Biggus v. State, 323 Md. 339, 350 , 593 A.2d 1060, 1065 (1991); Snowden v. State, 321 Md. 612, 616 , 583 A.2d 1056, 1059 (1991) and cases there cited. The required evidence 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 merges into the latter.’ ” When there is a merger under the required evidence test, separate sentences are normally precluded. Instead, a sentence may be imposed only for the offense having the additional element or elements.... Id. 332 Md. at 391-92 , 631 A.2d 453 .

Fourth degree sexual offense is, as explained in Lancaster , a “multi-purpose” offense, i.e., an offense having alternative elements, which means that, “under the statutory language itself or the common law requirements,” it may be committed “in two or more different ways, any one of which is sufficient for a conviction.” Id. 332 Md. at 392 n. 3, 631 A.2d 453 (citing Biggus v. State, 323 Md. 339, 344-50 , 593 A.2d 1060 (1991)). Maryland Code (1957, 1992 Repl.Vol.), Art. 27, § 464C(a) states: A person is guilty of a sexual offense in the fourth degree if the person engages: (1) In sexual contact with another person against the will and without the consent of the other person; or ³⁶³ (2) In a sexual act with another person who is 14 or 15 years of age and the person performing the sexual act is four or more years older than the other person; or (3) In vaginal intercourse with another person who is 14 or 15 years of age and the person performing the act is four or more years older than the other person. The definitions of “sexual contact” and “sexual act” are set forth in Art. 27, § 461. “Sexual contact” means the intentional touching of any part of the victim’s or actor’s anal or genital areas or other intimate parts for the purposes of sexual arousal or gratification or for abuse of either party and includes the penetration, no matter how slight, by any part of a person’s body, other than the penis, mouth, or tongue, into the genital or anal opening of another person’s body if that penetration can be reasonably construed as being for the purpose of sexual arousal or gratification or for abuse of either party. It does not include acts commonly expressive of familial or friendly affection, or acts for accepted medical purposes. “Sexual act” (as used in Art. 27, § 464C) means cunnilingus, fellatio, anilingus, or anal intercourse, but does not include vaginal intercourse.

As the Court of Appeals pointed out in Biggus v. State, 323 Md. 339, 348 , 593 A.2d 1060 (1991), the sections of the “sexual offenses” subtitle of Article 27 that define substantive offenses, including § 464C, were each intended to define a single offense. Each of those offenses can be committed in a number of different ways. As noted supra, a fourth degree sexual offense can be committed by any of several different acts constituting sexual contact against the will and without the consent of the other person, or by sexual intercourse or a sexual act (which can be any of a number of specific acts) with someone who is 14 or 15 years of age and four years younger than the actor. In Lancaster , the Court explained that, when applying the required evidence test to multi-purpose offenses such as fourth degree sex offenses, “a court must ‘examin[e] the ³⁶⁴ alternative elements relevant to the case at issue.’ ” 332 Md. at 392 , 631 A.2d 453 (quoting Snowden v. State, 321 Md. 612, 618 , 583 A.2d 1056 (1991)).

Judge Adkins, writing for the Court of Appeals in Nightingale v. State, 312 Md. 699 , 542 A.2d 373 (1988) (which involved an interplay between such multi-purpose statutory crimes as second, third, or fourth degree sexual offenses (Art. 27, §§ 464A, 464B, and 464C, respectively) and child abuse (Art. 27, § 35A), itself a multipurpose statutory offense that can be committed in any of several different ways), described that process as follows: When, as here, a multi-purpose criminal statute is involved, the court must construct from the alternative elements within the statute the-particular formulation that applies to the case at hand. It should rid the statute of alternative elements that do not apply. It must, in other words, treat a multipurpose statute written in the alternative as it would treat separate statutes. The theory behind the analysis is that a criminal statute written in the alternative creates a separate offense for each alternative and should therefore be treated for double jeopardy purposes as separate statutes would. 312 Md. at 706-707 , 542 A.2d 373 (quoting Pandelli v. United States, 635 F.2d 533, 537 (6th Cir.1980) (footnote omitted)).

Applying the method set forth in Nightingale and Lancaster , we can readily eliminate both the sexual act and the vaginal intercourse ways of committing a fourth degree sexual offense, since there is no contention that appellant either committed a sexual act as defined in Art. 27, § 461 or engaged in vaginal intercourse with the victim. The type of fourth degree sexual offense with which appellant was charged was limited to engagement “in sexual contact with another person against the will and without the consent of the other party” or, in other words, an unwanted, unwelcome, uninvited “intentional touching” of an “intimate part[ ]” of the victim’s body “for the purposes of sexual arousal or gratification or for abuse.” ³⁶⁵ Lewis Hochheimer, Crimes and Criminal Procedure (Second Edition) § 255 defines “battery” as follows: The least actual force unlawfully applied to the person of another constitutes a battery. Force is applied, when there is any touching of a person or anything attached to the person by the aggressor or by any person or thing set in motion by him. In Richard P. Gilbert And Charles E. Moylan, Jr., Maryland Criminal Law: Practice and Procedure, § 3.1 (1983), it is stated: The mere placing of one’s hand upon the body of another without consent of the latter is sufficient in law, to constitute the offense [of battery].

Were the law otherwise, it is highly probable that persons, particularly women, would be regularly subjected to assault and battery by the more base element of society. Cognizant of that fact, the courts