Maxwell v. State

MEREDITH, J. Charles Levi Maxwell, appellant, a 33-year-old former high school teacher, was convicted by a Howard County jury of sexual offense in the third degree and attempted second degree rape for having lured a 13-year-old girl to engage in sexual activity with him. For the two convictions, Maxwell was given concurrent sentences of imprisonment with all but four years suspended. Maxwell has not appealed his conviction for the third degree sexual offense, but attacks his conviction for attempted second degree rape on three grounds. Maxwell contends that: (1) there can be no criminal liability for attempted statutory rape when that offense is based upon strict liability for sex with an underage partner; (2) the trial court erred in the instructions it gave the jury regarding attempt; and (3) the evidence was insufficient to support the conviction for attempt because the State did not establish that Maxwell took a substantial step beyond mere preparation for sexual intercourse.

Perceiving no error, we shall affirm the conviction. 1. Background On New Year’s Day of 2003, a girl we will refer to in this opinion as SG was 13 years old, one week shy of her 14th birthday. She was an eighth grade student, at home on a holiday. Feeling bored, she logged onto the internet, and, ⁴ using her AOL screen name, entered a chat room she had previously visited.

This particular chat room was devoted to romance. 1 In the romance chat room, SG began chatting with Maxwell, who utilized the screen name “deepeyesforyou69.” SG told Maxwell that she was a 14-year-old girl who lived in Howard County, Maryland. Maxwell replied that he lived in Baltimore County, and suggested they meet. The chat included references to sex and SG’s insistence upon the use of a condom. Maxwell asked for her telephone number and address.

As she had done on other occasions, SG gave her telephone number to a person whom she had met through an internet chat room, in this instance, Maxwell. Maxwell called SG, and they continued their conversation. At some point, he told her he was in his 20’s and that his name was Craig. They made plans for Maxwell to drive to Howard County to pick her up later that ⁵ same afternoon.

SG gave Maxwell her address and told him she would wait for him at the end of her street. SG told her mother that she was going out for a walk, and then waited on the street corner for Maxwell to show up. Maxwell drove his car to the corner where SG was waiting. He rolled down the window and asked if she was SG, and then invited her to get in his car.

She recognized his voice and entered the car. After SG got into the car, Maxwell asked her if there was a church nearby, and SG directed him to a nearby church. Maxwell pulled into the deserted parking lot of the church and parked far from the church buildings. According to SG, Maxwell then began kissing her and fondling her breasts.

He then lifted her shirt and bra and began kissing her exposed breasts. When Maxwell asked her to remove her pants, SG complied by pushing her sweat pants and underpants down to her ankles, after which Maxwell used his hands to push her legs apart and feel inside her vagina. At some point, Maxwell took out a video camera and asked SG if it was okay to record what they were doing. She told him it was not okay, but she was suspicious that when he placed the camera on the dashboard of the car he left the camera on in spite of what she said.

Maxwell lowered SG’s seatback to the reclining position and told SG to turn on her stomach. When she complied, he fondled and kissed her bare buttocks. Maxwell then told SG to turn over again, and he pushed down his own pants and placed her hand on his penis while he touched her vagina. Maxwell pulled a condom out of a little box that was in the passenger compartment.

At that moment a car began to enter the parking lot area. Maxwell said “car,” and told SG to fix her clothing as he did likewise. Maxwell asked SG if she wanted to go and “finish it” at a different church, but she responded that she just wanted to go home. At her request, Maxwell drove SG to her friend’s house, dropped her off, and then drove away.

Feeling nervous, ashamed, and a little sick to her stomach, SG told her friend, who was also an eighth grade student, ⁶ what she had just experienced. SG’s friend convinced her to go home and tell SG’s mother. SG told her mother, who called the police. Later on that same day, a police officer came to SG’s home and interviewed her.

Under police supervision, SG entered the romance chat room again on January 3, 2003, and was promptly contacted by deepeyesforyou69. Acting upon instructions from the police, who hoped to apprehend the man known to SG as deepeyesforyou69 and Craig, SG scheduled a second rendezvous with Maxwell for January 7. When Maxwell appeared at the appointed time and location on January 7, he was arrested. Maxwell commented to the arresting detective, “my career is over.” 2.

Discussion A. In Maryland, attempted rape in the second degree is a statutory felony offense. The version of second degree rape that Maxwell is alleged to have attempted to commit is sometimes referred to as statutory rape, currently proscribed by Md.Code (2002), Criminal Law Article (“CL”), § 3-304(a)(3), which provides: “A person may not engage in vaginal intercourse with another ... [i]f the victim is under the age of 14 years, and the person performing the act is at least 4 years older than the victim.” Maxwell points out that the Court of Appeals has held that this statute imposes strict liability upon the offender, that no proof of mens rea is required, and that a good faith mistake of age is not a defense. Garnett v. State, 332 Md. 571, 584-85 , 632 A.2d 797 (1993); accord Owens v. State, 352 Md. 663, 690 , 724 A.2d 43 , (the statute does not offend the constitution), cert. denied, 527 U.S. 1012 , 119 S.Ct. 2354 , 144 L.Ed.2d 250 (1999). See also Walker v. State, 363 Md. 253, 265-66 , 768 A.2d 631 (2001) (mistake of age is not a defense to age-based third degree sexual offense defined by CL § 3—307(a)(5)).

In light of the holdings in Garnett and Owens that age-based second degree rape is a strict liability crime, Maxwell argues that, “[a]s a matter of law, one cannot attempt to commit a strict ⁷ liability offense,” and therefore his conviction for attempted rape in the second degree must be vacated. 2 Maxwell overlooks the fact that he was not convicted of common law misdemeanor attempt, see Dabney v. State, 159 Md.App. 225, 234-35 , 858 A.2d 1084 (2004), but was convicted of a separate statutory felony offense, viz., CL § 3-310, which expressly provides: “A person may not attempt to commit rape in the second degree.” Further, the trial court specifically instructed the jury that in order to convict Maxwell of attempted rape in the second degree the jury would have to find, as one element, that “the defendant intended to commit the crime of second degree rape.” We agree with the appellate courts from a number of other states that have rejected the argument made by Maxwell and have concluded that the State may impose liability for attempted statutory rape. 3 In State v. Sines, 158 N.C.App. 79 , 579 S.E.2d 895 , cert. denied, 357 N.C. 468 , 587 S.E.2d 69 (2003), the defendant was convicted of attempted statutory sexual offense. He moved to dismiss the charge, asserting that the attempted statutory offense was a “logical impossibility” under North Carolina law. This contention was rejected. The North ⁸ Carolina intermediate appellate court explained, in a passage that merits extended quotation: In order to prove an attempt of any crime, the State must show: “(1) the intent to commit the substantive offense, and (2) an overt act done for that purpose which goes beyond mere preparation, but (8) falls short of the completed offense.” [ 4 ] State v. Miller, 344 N.C. 658, 667 , 477 S.E.2d 915, 921 (1996) (citing State v. Collins, 334 N.C. 54 , 431 S.E.2d 188 (1993)).

An act must be done with specific intent to commit the underlying crime before a defendant may be convicted of an attempted crime. See State v. Coble, 351 N.C. 448 , 527 S.E.2d 45 (2000). Here, the evidence in the light most favorable to the State shows that defendant committed an overt act that would have aided in the commission of statutory sexual offense. Defendant’s placement of his penis in front of victim’s face, coupled with his demand for oral sex, comprise an overt act sufficient to satisfy the second element of attempt....

The remaining element is the intent to commit the substantive offense. Defendant argues that it is logically impossible to have the specific intent to commit a strict liability crime which does not require a specific intent.... Defendant argues that since our State does not recognize attempted general intent crimes, it cannot logically recognize attempted strict liability or non-intentional crimes. We disagree.

We find the reasoning of the Washington Supreme Court in State v. Chhom persuasive in this case. See State v. Chhom, 128 Wash.2d 739 , 911 P.2d 1014 (1996). The Revised Code of Washington contains a statute which is similar in form and function to our G.S. § 14-27.7A. The crime is entitled “rape of a child” and is defined as having “sexual intercourse with another who is less than twelve years old and not married to the perpetrator and the perpetrator is at least twenty-four months older than the victim.” Wash. ⁹ Rev.Code Ann. § 9A.44.073 (West 2000).

A second- and third-degree level of this offense are also defined in the statutes for offenses involving children of different ages. Wash. Rev.Code Ann. §§ 9A.44.076 and 9A.44.079 (West 2000). In Chhom , a defendant was convicted of attempted rape of a child after the victim refused to perform fellatio on defendant.

See Chhom, 911 P.2d at 1015 . The Washington Supreme Court held that the strict liability offense could form the basis of a conviction for attempt. 911 P.2d at 1017 . The court stated: “When coupled with the attempt statute, the intent required for attempted rape of a child is the intent to accomplish the criminal result: to have sexual intercourse.” 911 P.2d at 1016-17 . The defendant was not required to have knowledge that the victim was under the age of consent in order to be convicted of attempted rape of a child. 911 P.2d at 1017 (citing State v. Davis, 108 N.H. 158 , 229 A.2d 842, 844 (1967), overruled on other grounds by State v. Ayer, 136 N.H. 191 , 612 A.2d 923 (1992)).

Requiring a defendant to have knowledge of a minor’s age in order to convict him for attempt would not be logical if the defendant could be convicted of the completed crime regardless of his knowledge of the victim’s age. Applying the Chhom logic to our G.S. § 14-17.7A (a) statutory sexual offense, the intent required for attempted statutory sexual offense is the intent to engage in a sexual act. The intent element of attempted statutory sexual offense does not require that the defendant intended to commit a sexual act with an underage person, but only that defendant intended to commit a sexual act with the victim. Defendant’s knowledge of victim’s age or victim’s consent are not defenses to the crime of attempted statutory sexual offense, just like these defenses are not valid if the crime of statutory sexual offense is completed.

We hold that the crime of attempted statutory sexual offense is valid under North Carolina law. Sines, supra, 158 N.C.App. at 84-86 , 579 S.E.2d at 899-900 . We believe that the reasoning in these cases applies with even greater force in Maryland, in light of the statutory ¹⁰ scheme enacted by our legislature that specifically makes it a felony for a person to “attempt to commit rape in the second degree,” i.e., CL § 3—310(a). We are satisfied that the General Assembly acted within its authority to enact CL § 3-310, and that the indictment charging appellant with a violation thereof alleges a cognizable offense.

The recently decided case of Moore v. State, 388 Md. 623 , 882 A.2d 256 (2005), involving a charge of common law attempt to commit a sexual offense in the third degree, is not in conflict with our conclusion that Maxwell was properly charged with, and convicted of, attempted second degree rape. In Moore , the indictment charged, inter alia, that Moore did “unlawfully attempt to commit a sexual offense in the third degree upon a fourteen-year-old minor,” id. at 627 , 882 A.2d 256 , in violation of CL § 3-307(a)(4) and (5). 5 Moore had used an internet chat room to attempt to contact a minor. Under the agreed statement of facts in the case, however, Moore was at all times communicating with an adult police officer who was posing as a 14-year-old girl. Using the internet for communication, Moore told the police officer that he wanted to engage in oral sex with her and her 14-year-old friend.

Moore arranged to meet the purported minors in Frederick. At the appointed hour, Moore showed up, and he was arrested by members of the Maryland State Internet Crimes Against Children Taskforce. In a statement to arresting officers, ¹¹ Moore admitted that he drove from Reston, Virginia, to Frederick, Maryland, with an intent to meet two 14-year-old minors and engage in oral and vaginal sex with both girls. Moore was convicted of attempted third degree sexual offense.

Moore appealed his convictions to this Court, but the Court of Appeals issued a writ of certiorari prior to disposition of Moore’s appeal in this Court. The Court of Appeals framed the question before it quite narrowly, stating, 388 Md. at 626 , 882 A.2d 256 : The ... question presented in this case is whether the crime of attempted third degree sexual offense, predicated upon either § 3-307(a)(4) or § 3-307(a)(5), covers the situation where the defendant, who is over 21 years of age, contacts and arranges to meet another person for a sexual act or vaginal intercourse, where the defendant travels to the arranged meeting place, where the defendant believes that the other person is 14 years old, but where the other person is actually an adult undercover police officer. The Court summarized the State’s argument in Moore as follows: [Bjeeause Moore’s purpose or intent was “to engage in unlawful sexual conduct with a minor,” and because, according to the State, he “took a substantial step towards commission of the crime, he can be convicted of attempt, even if the person he thought was a minor was an undercover adult police officer.” Moore, 388 Md. at 643 , 882 A.2d 256 . The Court of Appeals disagreed, pointing out that because there was no 14-year-old involved in Moore’s case, there could be no third degree sexual offense even if Moore had followed his intent through to a conclusion, and if there could be no consummated third degree sexual offense, there could be no attempted third degree sexual offense under the agreed facts presented in the case.

The Court stated, id. at 643-44 , 882 A.2d 256 : Preliminarily, it is questionable whether count two of the indictment [the charge of attempted third degree sexual ¹² offense] even covered the State’s theory of the case. Count two flatly charged that the defendant, in Frederick County, “did unlawfully attempt to commit a sexual offense in the third degree upon a fourteen year old minor.” (Emphasis added). Under the agreed statement of facts, there was no evidence of a fourteen-year-old minor present at the location in Frederick County or even a fourteen year old ever involved in the case. The language of count two may simply not cover an adult or fictitious person believed by the defendant to be a minor.

Nevertheless, assuming arguendo that count two is sufficient to embrace the State’s theory, we agree with the defendant that the crime of an attempted third degree sexual offense under the common law and under § 3-307(a)(4) and (5), does not cover the situation presented by this case. In reaching our decision, however, we need not and shall not decide some of the issues raised by the defendant. Specifically, we shall not reach either the defendant’s argument that there was no “substantial step that goes beyond preparation” or his argument based on “legal impossibility.” The Court reviewed Maryland cases that have addressed strict criminal liability in the context of sexual offenses where there was no mens rea element with respect to the victim’s age. The Court further elaborated on the nature of the crime of common law attempt in Maryland, quoting from Lane, in which Judge Wilner stated: “By Maryland common law, the attempt to commit a crime is, itself, a separate crime—a misdemeanor.

As we pointed out in Cox v. State, 311 Md. 326, 330-31 , 534 A.2d 1333, 1335 (1988), attempt ‘is an adjunct crime, it cannot exist by itself, but only in connection with another crime,’ and it thus ‘expands and contracts and is redefined commensurately with the substantive offense.’ See also Hardy v. State, 301 Md. 124 , 482 A.2d 474 (1984). Subject to some exceptions, common law attempt has been held applicable to common law crimes and to a number of statutory offenses. Bruce v. State, 317 Md. 642, 645 , 566 A.2d 103, 104 (1989). ¹³ There are, however, at least two categories of substantive crimes, to which criminal attempt has been held inapplicable. The first consists of crimes that do not require at least a general criminal intent.

Cox v. State, supra, 311 Md. at 331 , 534 A.2d at 1335 : ‘There is an exception, however, to the general rule that attempt applies to all offenses. Crimes that do not involve intent to do a criminal act generally fall outside the scope of the crime of attempt. If there is no intent to do a wrongful act, then usually there is no crime of attempt.’ The second category consists of substantive crimes that are, themselves, in the nature of attempts. Simple assault is often cited as an example.

Although we need not decide the matter here, there may be other crimes as well that may not be suitable for serving as the basis of a criminal attempt.” Moore, 388 Md. at 644-45 , 882 A.2d 256 (quoting Lane, supra, 348 Md. at 283-84, 703 A.2d 180 ) (footnote omitted) (emphasis added in Moore). With respect to the charge of attempted third degree sexual offense brought against Moore, the Court concluded, 388 Md. at 645-46 , 882 A.2d 256 : Since the offense under § 3-307(a)(4) and (5) has no intent element or mens rea element with regard to the “victim’s” age, it follows that, absent a change in the statute, there can be no crime of attempt such as charged in the present indictment. The fact that the defendant in the case actually had an intent to engage in sexual activity with a fourteen year old person does not in itself create a crime where there is no such crime of attempted third degree sexual offense under the present statutory scheme and common law principles. The Court did not hold that there could be no conviction for attempted third degree sexual offense under other circumstances involving an actual 14-year-old.

But in Moore’s situation, because there was no 14-year-old ever actually involved, Moore could not have committed the crime of third degree sexual offense under CL § 3-307(a)(4) or (5), and consequent ¹⁴ ly, there could be no liability for a lesser included common law attempt. Further, as the Court of Appeals pointed out, there was no statutory provision that criminalized Moore’s actions taken in the mistaken belief that he was dealing with a 14-year-old. Because the would-be victim was an adult, Moore could not be convicted of either a third degree sexual offense under CL § 3-307(a)(4) or