Dillsworth v. State

³⁵⁶ MARVIN H. SMITH, Judge, (retired), Specially Assigned. Petitioner Terry Lang Dillsworth, after conviction by an Allegany County jury, was sentenced to consecutive terms for assault with intent to maim, disfigure or disable, and third degree sexual offense. At trial the victim testified that when Dillsworth attacked her he said he was going to rip out her vagina. She said further, “He put his hand inside me and started to pull and tear at me.” Next, Dillsworth threatened to rip out the victim’s throat.

He placed two or three fingers down her throat and choked her. The Court of Special Appeals affirmed the convictions in Dillsworth v. State, 66 Md.App. 263 , 503 A.2d 734 (1986). We granted Dillsworth’s petition for a writ of certiorari to consider his contentions that the convictions for assault with intent to maim and third degree sexual offense should have been merged and that the sentence was based, in part, upon impermissible considerations. We shall affirm.

I. Merger Dillsworth contends that merger of the offenses of assault with intent to maim, disfigure or disable and third degree sexual offense is mandated by both the required evidence test and the rule of lenity. A. The Required Evidence Test We have consistently applied the required evidence test in determining whether two offenses are the same for double jeopardy purposes. See Brooks v. State, 284 Md. 416, 420-21 , 397 A.2d 596, 598 (1979); Thomas v. State, 277 Md. 257, 266 , 353 A.2d 240, 246 (1976). Judge Eldridge recently summarized the test for the Court in State v. Jenkins, 307 Md. 501 , 515 A.2d 465 (1986): “The normal test for determining whether one offense merges into another is the so-called ‘same evidence test’ or ‘required evidence test’ or, as it is often labeled, the ‘Blockburger test.’[ 1 ] This test focuses upon the ele ³⁵⁷ ments 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.” 307 Md. at 517 , 515 A.2d at 473 . “Required” evidence is not to be confused with “actual” evidence.

Under an actual evidence approach, offenses would merge whenever the evidence actually adduced at trial is substantially the same for both offenses. We have explicitly rejected the actual evidence test as our general standard for determining merger. Brooks, 284 Md. at 420-21 , 397 A.2d at 598 . We there said that “the cases in this Court have consistently taken the position that the general test for determining merger of offenses, as well as for deciding whether two offenses should be deemed the same for double jeopardy purposes, is the required evidence test.” In Brooks we said that the required evidence test “focuses upon the elements of the two crimes rather than upon the actual evidence adduced at trial.

The ‘required evidence’ refers to that evidence needed, as a matter of law, to prove the crimes. This was explained in Thomas v. State, 277 Md. 257, 267 , 353 A.2d 240 (1976): ‘The required evidence is that which is minimally necessary to secure a conviction for each statutory offense. If each offense requires proof of a fact which the other does not, or in other words, if each offense contains an element which the other does not, the offenses are not the same for double jeopardy purposes even though arising from the same conduct or episode.’ ” 284 Md. at 420 , 397 A.2d at 598 (emphasis in original; citations omitted). Jenkins involved convictions for assault with intent to murder and assault with intent to maim, disfigure or disable.

The two offenses were based on a single act: the ³⁵⁸ shooting of another man during an altercation. We held that assault with intent to maim merges into assault with intent to murder when the offenses are based on the same, single act of assault. 307 Md. at 521-22 , 515 A.2d at 475 . The basis for the merger, however, was not the required evidence test. We said that under that test the offenses would not merge as each requires proof of a distinct element.

Specifically, one offense requires proof of an actual, specific intent to murder. The perpetrator of an assault with intent to maim, disfigure or disable, on the other hand, contemplates that the victim shall live. Consequently, the two intents are “different in kind” and do not merge under the required evidence test. Id. at 515, 517-18 , 515 A.2d at 472, 473 .

We have applied the required evidence test in other cases, concluding that statutory daytime housebreaking with intent to steal does not merge with statutory breaking and entering a dwelling house, Hawkins v. State, 291 Md. 688 , 436 A.2d 900 (1981); that solicitation to commit murder merges into the offense of being an accessory before the fact to the murder, Lewis v. State, 285 Md. 705 , 404 A.2d 1073 (1979); that the underlying felony merges into a conviction for felony murder, Newton v. State, 280 Md. 260 , 373 A.2d 262 (1977); that assault and the statutory offense of carrying a weapon openly with intent to injure do not merge, Cousins v. State, 277 Md. 383 , 354 A.2d 825 , cert. denied, 429 U.S. 1027 , 97 S.Ct. 652 , 50 L.Ed.2d 631 (1976); and that assault merges into rape, Green v. State, 243 Md. 75 , 220 A.2d 131 (1966). We turn to the question of whether the two offenses involved here each requires proof of an element which the other does not. 2 Assault with intent to maim, disfigure or disable is proscribed by Maryland Code (1957, 1982 Repl. Vol.) Art. 27, § 386: ³⁵⁹ “If any person ... shall assault or beat any person, with intent to maim, disfigure or disable such person ... every such offender ... shall be guilty of a felony----” The provisions relative to third degree sexual offense are found in Code (1957, 1982 Repl.Vol.) Art. 27, § 464B, which states in relevant part: “(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: “(i) 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----” (Emphasis added.) “Sexual contact” is defined in Code (1957, 1982 Repl.Vol.) Art. 27, § 461(f), as “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, however 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 purposes of sexual arousal or gratification or for abuse of either party.” Both offenses carry maximum penalties of ten years. In Jenkins we said, “Assault with intent to maim, disfigure or disable ... requires one of these three enumerated ³⁶⁰ statutory intents____” 307 Md. at 515 , 515 A.2d at 472 .

Third degree sexual offense requires proof of forcible, unconsented-to sexual contact and, for purposes of this case, one of the enumerated aggravating circumstances, among which are included threatening or inflicting “disfigurement.” Assuming that under Green, 243 Md. 75 , 220 A.2d 131 , simple assault merges into a third degree sexual offense, the inquiry narrows to whether that relationship is affected by adding to simple assault the element of intent to maim, disfigure or disable. Clearly, third degree sexual offense requires elements which assault and assault with intent to maim, disfigure or disable do not. For example, the sexual offense requires proof that a specific part of the body was touched or penetrated, and that the purpose was sexual arousal, sexual gratification, or abuse. Consequently, unless it can be said that an actual, specific intent to maim, disfigure or disable constitutes an element of third degree sexual offense, there can be no question but that each offense requires proof of an element which the other does not.

As earlier noted, either the infliction or the threatening of disfigurement would satisfy the aggravating circumstance requirement of third degree sexual offense. Code (1957, 1982 Repl.Vol.) Art. 27, § 464B(a)(l)(ii), (iii). However, neither inflicting nor threatening disfigurement necessarily involves an actual, specific intent to disfigure. For example, it is quite possible to inflict disfigurement without having a specific intent to do so.

Similarly, one could threaten disfigurement without having any actual intent of carrying out the threat. Although an actual intent to disfigure could accompany the infliction or threat, § 464B does not require such an intent. The language we quoted earlier from Thomas, 277 Md. at 267 , 353 A.2d at 246-47 , offers guidance: “The required evidence is that which is minimally necessary to secure a conviction for each statutory offense.” (Emphasis added.) We conclude that there is no merger of these two crimes under the required evidence test. ³⁶¹ B. The “Rule of Lenity” 3 Although the required evidence test is the normal standard for determining whether offenses merge, we, as observed in Jenkins , have “recognized on several occasions ... [that it] is not the exclusive standard.” 307 Md. at 518 , 515 A.2d at 473 . In Jenkins we quoted from Brooks, 284 Md. 416 , 397 A.2d 596 : “[E]ven though offenses may be separate and distinct under the required evidence test, courts occasionally find as a matter of statutory interpretation that the Legislature did not intend, under the circumstances involved, that a person could be convicted of two particular offenses growing out of the same act or transaction.

See, e.g., Simpson v. United States, 435 U.S. 6,13-16 , 98 S.Ct. 909 [913-915], 55 L.Ed.2d 70 (1978); United States v. Gaddis, 424 U.S. 544, 547-548 , 96 S.Ct. 1023 [1025-1026], 47 L.Ed.2d 222 (1976); Ladner v. United States, 358 U.S. 169, 173-178 , 79 S.Ct. 209 [211-214], 3 L.Ed.2d 199 (1958); Prince v. United States, 352 U.S. 322, 327 , 77 S.Ct. 403 [406], 1 L.Ed.2d 370 (1957); Bell v. United States, 349 U.S. 81, 83-84 , 75 S.Ct. 620 [622-623], 99 L.Ed. 905 (1955); Thessen v. State, 508 P.2d 1192, 1195-1197 (Alas.1973); Manning v. United States, 270 A.2d 504, 506 (D.C.1970); State v. McCarroll, 337 So.2d 475, 478-479 (La.1976).” 284 Md. at 423-24 , 397 A.2d at 600 . We concluded in Jenkins “that assault with intent to murder and assault with intent to maim, disfigure or disable, when based on the same single act of assault, should not be viewed as entirely separate crimes for purposes of conviction and sentence.” 307 Md. at 521 , 515 A.2d at 475 . In so holding we observed that courts in other jurisdictions have reached the same conclusion with regard to single acts of assault which meet statutory requirements for more than one aggravated assault. We quoted from Manigault v. ³⁶² State, 61 Md.App. 271 , 486 A.2d 240 (1985), where Judge Moylan said for the court: “Indeed, an assault with intent to rob and an assault with intent to murder arising out of the same attack are not separate crimes at all, but rather separate modes of aggravating a common crime.

A defendant who has assaulted his victim with the concomitant specific intents to rape her, to rob her, and to kill her, has committed not three crimes but one. That one has simply been aggravated upward to the felony plateau in three different ways. An uncritical application of the Blockburger test, simply comparing elements, might make it appear that assault with intent to rob, assault with intent to murder, and assault with intent to rape are all separate crimes because each possesses a distinct element. It is not a proper occasion to apply the Blockburger test, however, because these are but various forms of aggravating a common undergirding offense.

By the same token, an uncritical application of the Blockburger test would indicate that premeditated murder and felony-murder are separate crimes, but we know that they are but alternative modes of aggravating a single crime. “A murder aggravated up to the first-degree level two separate ways does not become two murders. Neither does an assault aggravated up to the felonious level in two separate ways become two assaults. “It might facilitate our ability to conceptualize the relationship if we thought of common law assault as ‘assault in the second degree’ and of the various aggravated assaults as forms of ‘assault in the first degree.’ ” 61 Md.App. at 285 n. 2, 486 A.2d at 247 n. 2. Clearly, the instant case is distinguishable to the extent that it involves more than “an assault aggravated up to the felonious level in two separate ways.” We have alluded to the doctrine of merger by legislative intent in several other decisions. See State v. Boozer, 304 Md. 98 , 497 A.2d 1129 (1985) (legislative intent compatible with notion that single criminal episode can give rise to ³⁶³ multiple sexual offense charges); State v. Oliver, 302 Md. 592 , 611 n. 12, 490 A.2d 242 , 251 n. 12 (1985); Whack v. State, 288 Md. 137 , 416 A.2d 265 (1980), appeal dismissed and cert. denied, 450 U.S. 990 , 101 S.Ct. 1688 , 68 L.Ed.2d 189 (1981); Brooks, 284 Md. at 423-24 , 397 A.2d at 600 ; Newton, 280 Md. at 274 n. 4, 373 A.2d at 269 n. 4 (Legislature may indicate intent to impose punishment under two statutes, even though the offenses are the “same” under the required evidence test).

Aside from Jenkins , however, Whack is the only other case in which the doctrine was squarely before the Court. Tommy Whack received consecutive sentences for robbery with a deadly weapon (Code (1957, 1976 Repl.Vol.), Art. 27, § 488) and use of a handgun in the commission of a felony (Art. 27, § 36B(d)). Both offenses occurred during the course of a single robbery. In upholding the sentences we first observed that there was no legislative