Malee v. State

MOYLAN, Judge. The appellant, Ricky James Malee, was convicted by a Frederick County jury, presided over by Judge John H. Tisdale, of twenty counts charging a second degree sexual offense, ten counts charging a third degree sexual offense, and one count charging child abuse. With most of the sentences being consecutive to the others, the appellant was sentenced to serve a grand total of 450 years. On this appeal, he raises the two contentions 1. that the indictment did not charge with sufficient specificity and the evidence did not establish guilt with sufficient specificity, and 2. that the sentence of 450 years was “excessive” under the Eighth Amendment. ³²³ We shall examine separately the distinct subcontentions of 1) the specificity of the pleading and 2) the legal sufficiency of the evidence to support the convictions.

They are distinct issues. For our analysis of the pleading issue, moreover, we shall assume the legal sufficiency of the evidence to prove the crimes charged. The Specificity of the Pleading During the six-month period covered by the charges, Hilda Smith; her seven-year-old son, Nicholas; and her three-year-old son, Michael, were living at the Lincoln Apartments in Frederick. The appellant was Hilda Smith’s live-in boyfriend on a “nightly” or “every other nightly” basis.

The appellant was convicted on 31 separate charges. One of those was for the continuing act of child abuse. It poses no problem in terms of the specificity of the pleading. The other 30 convictions fall into two large groups.

Twenty of the convictions were for various sexual offenses in the second degree. Ten of the convictions were for various sexual offenses in the third degree. All 20 of the second-degree sexual offenses and all 10 of the third-degree sexual offenses were alleged to have occurred at some time during the six-month period of January 1, 1996 through June 30, 1996. Why Thirty Charges?

To Avoid Duplicity Under the teaching of Cooksey v. State, 359 Md. 1 , 752 A.2d 606 (2000), the State abandoned any thought of aggregating or consolidating the 30 charges into two charges of continuing offenses, one for all of the second-degree sexual offenses and one for all of the third-degree offenses. Indeed, fearful that the initial indictment in this case may have been duplicitous under Cooksey , the State nolle prossed the original charges and, on January 19, 2001, filed a new indictment in order to be in full compliance with the Cooksey requirements. In Cooksey , the State erroneously had done what the State initially did in this case. In one count in Cooksey , the State ³²⁴ had charged the defendant with “a continuing course of conduct” over a one-year period, in which he committed the “sexual act” of cunnilingus with a child.

In response to a demand for particulars, the State alleged that the “sexual act” of cunnilingus had occurred “up to fifteen times” during the one-year period. A second count charged a “continuing course of conduct” involving a third-degree sexual offense. The particulars alleged that the “sexual contact” charged in that count occurred “up to fifteen times” during the year-long period. The opinion of Judge Wilner, 359 Md. at 22-23 , 752 A.2d 606 , stated emphatically that each separate “sexual act” under § 464A and each separate “sexual contact” under § 464B had to be charged separately.

There is no rational way to treat a second degree sexual offense, as defined in § 464A, or a third degree sexual offense, as defined in § 464B,- as a continuing offense. Section 16J¡,A defines a second degree sexual offense as engaging in “a sexual act” with another person under any of the three circumstances stated in the section. Section I6J+B defines a third degree sexual offense as engaging either in “sexual contact” under the circumstances stated in the section or “a sexual act” or vaginal intercourse with a person 14 or 15 if the perpetrator is at least 21. “Sexual contact” is defined in § 461(f) as “the intentional touching” of the victim’s anal or genital areas or other intimate parts for certain purposes. Those offenses are committed when the proscribed act occurs.

If they are committed on more than one occasion, other than as part of an ongoing single incident, they cannot be regarded as having been committed but once. We thus aline ourselves with the Rhode Island, New Hampshire, and New York courts and hold that a single count that charges multiple incidents of those offenses, committed other than in the course of a single criminal episode of relatively brief temporal duration, cannot be sustained as non-duplicitous on the theory of a ³²⁵ continuing offense. Counts 1 and 2 of the indictment were duplicitous. (Emphasis supplied).

Compliance with Cooksey accounts for the fact that there were 30 separate charges. Had the State alleged or sought to prove 1) various different types of “sexual act” under a single second-degree sexual offense charge or 2) various different types of “sexual contact” under a single third-degree sexual offense charge, that would have been duplicitous. Had the State alleged or sought to prove multiple instances of a single type of “sexual act” or multiple instances of a single type of “sexual contact” in a single charge, that also would have been duplicitous. The number of the offenses charged in this case is not a problem.

It is, indeed, the solution to a problem. Specificity as to the Type of Offense All of the charges spelled out the particular sexual offense alleged with complete specificity. The crime of a second-degree sexual offense, Art. 27, § 464A, covers a number of different “sexual acts.” Of the 20 counts charging a sexual offense in the second degree, six charged the appellant with anal intercourse upon Nicholas, four charged him with performing fellatio on Nicholas, four charged him with having Nicholas perform fellatio on him, one charged him with inserting a foreign object into Nicholas’s anus, three charged him with causing Nicholas to have anal intercourse with Michael, and two charged him with causing Nicholas to perform fellatio on Michael. The crime of a third-degree sexual offense, § 464B, covers a wide range of “sexual contact.” Of the ten counts charging the appellant with a sexual offense in the third degree, two counts charged him with touching Nicholas’s penis, four counts charged him with causing Nicholas to touch appellant’s penis, two counts charged him with causing Nicholas to touch Michael’s penis, and two counts charged him with causing Michael to touch Nicholas’s penis.

In terms of spell ³²⁶ ing out the specific type of “sexual act” or “sexual contact” being charged, we see no problem with any of the 30 counts. The appellant’s chagrin is not at multiplying the second-degree sexual offense by the number of types of “sexual act” or multiplying the third-degree sexual offense by the number of types of “sexual contact.” It is at the further multiplication by the number of instances of each particular type of forbidden “act” or “contact.” The appellant was charged with six different types of “sexual act” under the second-degree sexual offense charges, broken down into respective instances of 7, 4, 4, 1, 2, and 2. The appellant was charged with four different types of “sexual contact” under the third-degree sexual offense charges, broken down into respective instances of 2, 4, 2, and 2. By virtue of that further multiplication, 6 became 20 and 4 became 10.

Specificity As to the Dates of the Offenses The appellant’s biggest problem with that further multiplication is the alleged non-specificity with respect to the dating of the various offenses. For analytic purposes, we shall take the largest sub-group of charges-the six counts charging the appellant with having committed anal intercourse on Nicholas- and consider the dating problem with respect to that group of charges. By parity of reasoning, our analysis with respect to that group of charges will apply to the dating problem with respect to all 30 charges. Would the Inclusive Date Be Sufficient With Respect to a Single Offense?

As the appellant points out, all six counts charging the appellant with having performed anal intercourse with Nicholas are verbatim clones of each other, with not so much as the variance of a comma. At first blush, that seems intimidating. On closer analysis, however, it is not at all surprising. What is permitted or not permitted with respect to the dating of any one of the charges will similarly be permitted or not permitted with respect to the dating of the other five ³²⁷ charges as well.

Whether within a given and adequately alleged time period, an offense occurred once or twice or ten times is a matter of proof and not of pleading. Our initial analysis, therefore, will be of whether the time of the offense was alleged with sufficient specificity with respect to a single charge of having committed anal intercourse. Our conclusion is that it was. In Bonds v. State, 51 Md.App. 102 , 442 A.2d 572 (1982), the defendant was charged with committing various second and third-degree sexual offenses on an eleven-year-old girl “during the period July 1, 1979 through March 10, 1980.” Judge Couch wrote for this Court in pointing out that, particularly with respect to offenses on minors, it is sometimes impossible to determine the time of the offense with specificity.

We recognize there are many times when it is impossible for the State to determine the exact date and time that any crime was committed. Therefore, sometimes specificity as to the exact time and date of the crime alleged is impossible to establish. To establish a rule that would allow a criminal defendant to demand such specificity by raising an alibi defense would thwart justice and, in our view, is not required by either the Maryland or United States Constitutions. 51 Md.App. at 107 , 442 A.2d 572 (emphasis supplied). In upholding the adequacy of the indictment before the Court, he further stated: Neither the indictment nor the bill of particulars limited the accusation to any particular date.

There is no Maryland case law which requires, and the applicable statute does not require, that in such a case as this the State must plead and prove that the offense occurred on a specific date at a specific time. We refuse to impose any such requirement. 51 Md.App. at 106-07 , 442 A.2d 572 (emphasis supplied). In Harmony v. State, 88 Md.App. 306 , 594 A.2d 1182 (1991), the defendant, charged with the abuse of a minor child from “1980 through July of 1988,” moved to dismiss the criminal ³²⁸ information against him for vagueness. In rejecting that challenge, Judge Motz wrote for this Court: [I]n the context of a sex abuse case concerning a minor, when time is not an essential element of the offense, general allegations as to time are constitutionally sufficient if the actual date of the offense is unknown.

The Court [in Mulkey ] explained that the “ability of a child to definitely state the date or dates of the offenses or to narrow the time frame of such occurrences viay be seriously hampered by a lack of memory.” Moreover, where the offense is of a continuing nature, it may simply be impossible for the State to provide specific dates in its charging document. 88 Md.App. at 313 , 594 A.2d 1182 (emphasis supplied). Our conclusion was sure: Accordingly, we conclude that the information here, stating that the offenses occurred from 1980 to 1988, is constitutionally valid under the Maryland Declaration of Rights. As in Mulkey, the charges here involved multiple sexual abuses of a continuing nature against a child-victim who was unable to specify exact dates or times of the various acts. 88 Md. App, at 313-14, 594 A.2d 1182 . See also Cook v. State; 100 Md.App. 616, 629-31 , 642 A.2d 290 (1994), reversed on other grounds, 338 Md. 598 , 659 A.2d 1313 (1995).

The Latitude In Dating a Single Offense Extends to the Dating of Multiple Offenses Thus, if the proof were that a single act of anal intercourse had occurred between “January 1, 1996 through June 30, 1996,” the allegation as to the time of the offense would be adequate. If the proof further established that anal intercourse had occurred twice during that same time period, under Cooksey v. State two separate counts would be required. The allegation as to the time period within which the second offense occurred would, of necessity, be precisely the same as in the case of the first such offense. If within that same embracing time period, the proof were to cause us to multiply the offense by six rather than by two, the allegations as to the ³²⁹ time period within which the offenses occurred would remain identical.

The outer limits of the time period are the same whether within that time period the offense occurred once or twice or fifty times. The multiplier is simply a function of the proof and does not alter the required specificity of the dating in the indictment. In State v. Mulkey, 316 Md. 475 , 560 A.2d 24 (1989), the defendant