Holt v. State

Weant, J., delivered the opinion of the Court. The appellant, Timothy Theodore Holt, was indicted for various sexual offenses, and assault and battery. He was tried by jury in the Circuit Court for Montgomery County in April of 1980, and was found guilty of third degree sexual offense, attempted third degree sexual offense, and assault and battery. On 1 October 1980 he was sentenced to ten years’ imprisonment.

A timely appeal was filed to this Court. Appellant presents three issues for our consideration: I. Whether the trial court erred in refusing to instruct the jury with regard to voluntary intoxication.

II

Whether the trial court erred in refusing to admit evidence that appellant’s birth allegedly may have resulted from an incestuous relationship.

III

Whether the trial court failed to merge appellant’s assault and battery conviction with his third degree sexual offense conviction. ⁵⁸⁰ By virtue of our findings and the concession of the state that the trial court erred in refusing to instruct the jury on voluntary intoxication, we will reverse appellant’s convictions for third degree sexual offense and attempted third degree sexual offense. We fail, however, to perceive any error that mandates reversal of appellant’s assault and battery conviction. I. Appellant was found guilty of third degree sexual offense, attempted third degree sexual offense, and assault and battery. Third degree sexual offense is a specific intent crime, seeMd.

Ann. Code art. 27, § 464B (Cum. Supp. 1980), and attempted third degree sexual offense is a specific intent crime, see Mayne v. State, 45 Md. App. 483, 488 , 414 A.2d 1, 4 (1980), cert. denied, 101 S.Ct. 1347 (1981); but assault and battery is a general intent crime, Ott v. State, 11 Md. App. 259, 266, 273 A.2d 630, 634 (1971). In the instant case, appellant requested the trial court to give an instruction with regard to voluntary intoxication and his ability to form a specific intent to commit the crimes in question. That court refused to comply with this postulation.

Appellant properly relies on Maryland Rule 757(b), which requires the trial court, if requested, to give advisory instructions which are supported by the evidence. Blackwell v. State, 278 Md. 466, 477 , 365 A.2d 545, 551-52 (1976), cert. denied, 431 U.S. 918 (1977); Couser v. State, 36 Md. App. 485, 499 , 374 A.2d 399, 406-07 (1977), aff'd, 282 Md. 125 , 383 A.2d 389 , cert. denied, 439 U.S. 852 (1978). Failure of the trial judge to give such requested instructions constitutes reversible error. Gooch v. State, 34 Md. App. 331, 335 , 367 A.2d 90, 94 (1976), cert. denied, 280 Md. 735 (1977); Mumford v. State, 19 Md. App. 640, 641 , 313 A.2d 563, 565 (1974).

Our review of the record convinces us that the evidence generated the issue of voluntary intoxication. We are therefore constrained to reverse appellant’s convictions of the two specific intent crimes — third degree sexual offense ⁵⁸¹ and attempted third degree sexual offense — because the trial court failed to give the requested instruction on voluntary intoxication, which point of law is supported by the evidence in the instant case.

II

Appellant contends that, in addition to intoxication, his "principal theory at trial was that as a result of diminished mental capacity he was incapable of forming, or did not on the night in question form, the requisite intent for the crime charged.” At trial he proffered testimony to show that his birth was the result of an incestuous relationship which he claims had "a natural tendency to establish the existence of mental incapacity.” The trial court, however, refused to allow the testimony; we concur with that action. At the present time diminished mental capacity is not recognized as a defense in Maryland, see Swain v. State, 50 Md. App. 29 , 435 A.2d 805, 814 (1981). 1 Nevertheless, even if it were, we fail to see how the proffered testimony is relevant to such a defense. Relevant testimony is that which tends to establish a material proposition. Ross v. State, 276 Md. 664, 672 , 350 A.2d 680, 686 (1976).

Evidence that appellant suffered from