Miles v. State

ELDRIDGE, Judge. The petitioner William H. Miles was found guilty of common law battery for punching a man who had denied Miles’s request for money. Based on the same act, Miles was also found guilty of “aggressive panhandling” in violation of former Art. 19, § 249, of the Baltimore City Code, which made it unlawful, inter alia, to “touch[ ] another person in the course of panhandling without that person’s consent.” 1 Miles received separate sentences for the battery and the aggressive panhandling. Miles appealed, arguing, inter alia, that common law battery was a lesser-included offense and that, there ²¹⁹ fore, the sentence for battery should merge into the sentence for aggressive panhandling.

The Court of Special Appeals, in an unreported opinion, applied the required evidence test and concluded that the sentences should not merge because battery and aggressive panhandling each contain elements which the other does not. We granted Miles’s petition for a writ of certiorari to determine the question of merger. Miles v. State, 342 Md. 263 , 674 A.2d 961 (1996). I. We have often pointed out that, as a matter of Maryland common law, the normal standard for determining whether one offense merges into another is what is usually called the “required evidence test.” State v. Lancaster, 332 Md. 385, 391 , 631 A.2d 453, 456 (1993); Eldridge v. State, 329 Md. 307, 319 , 619 A.2d 531, 537 (1993); In re Montrail M., 325 Md. 527, 531 , 601 A.2d 1102, 1104 (1992); Biggus v. State, 323 Md. 339, 350 , 593 A.2d 1060, 1065 (1991); Williams v. State, 323 Md. 312, 316 , 593 A.2d 671, 673 (1991); Snowden v. State, 321 Md. 612, 616 , 583 A.2d 1056, 1058 (1991).

As these cases indicate, the required evidence test is applicable to common law offenses as well as offenses under statutes enacted by the General Assembly. Recently, in State v. Lancaster, supra, 332 Md. at 391-392 , 631 A.2d at 456-457 , we explained the required evidence test as follows: “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.’ Snowden v. State, supra, 321 Md. at 617 , 583 A.2d at 1059 , quoting State v. Jenkins, 307 Md. 501, 517 , 515 A.2d 465, 473 (1986). Stated another way, the ‘required evidence is that which is minimally necessary to secure a conviction for each ... 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,’ there is no merger under the required evidence test even though both offenses are based upon the same act ²²⁰ or acts. ‘But, where only one offense requires proof of an additional fact, so that all elements of one offense are present in the other,’ and where both ‘offenses are based on the same act or acts, ... merger follows____’ Williams v. State, supra, 323 Md. at 317-318, 593 A.2d at 673, quoting in part Thomas v. State, 277 Md. 257, 267 , 353 A.2d 240, 246-247 (1976).” When one offense is found to be a lesser-included offense of another under the required evidence test, ordinarily a “sentence may be imposed only for the offense having the additional element or elements.” State v. Lancaster, supra, 332 Md. at 392 , 631 A.2d at 457 .

See also, In re Montrail M., supra, 325 Md. at 534 , 601 A.2d at 1105 ; Biggus v. State, supra, 323 Md. at 350-351, 593 A.2d at 1065-1066; Snowden v. State, supra, 321 Md. at 617-619 , 583 A.2d at 1059-1060 ; Middleton v. State, 318 Md. 749, 760-761 , 569 A.2d 1276, 1281 (1990); State v. Jenkins, 307 Md. 501, 521 , 515 A.2d 465, 475 (1986); Johnson v. State, 283 Md. 196, 203-204 , 388 A.2d 926, 930 (1978); Flannigan v. State, 232 Md. 13, 19 , 191 A.2d 591, 593-594 (1963). This is true even where the lesser-included offense carries a greater maximum authorized sentence. “[W]here two offenses are deemed the same under the required evidence test, the included offense merges into the offense having a distinct element regardless of the maximum authorized sentence for each offense.” State v. Lancaster, supra, 332 Md. at 405 , 631 A.2d at 464 . The required evidence test, however, is not the only standard for resolving questions of merger. For example, where one offense is included in another, the offenses still may not merge under some circumstances where the General Assembly has “specifically or expressly authorized multiple punishments.” State v. Lancaster, supra, 332 Md. at 394 , 631 A.2d at 458 ; Randall Book Corp. v. State, 316 Md. 315, 323 , 558 A.2d 715, 719 (1989) (“when specifically authorized by the legislature, cumulative sentences ... may under some circumstances be imposed”); Whack v. State, 288 Md. 137, 143-150 , 416 A.2d 265, 268-271 (1980), appeal dismissed and cert. ²²¹ denied, 450 U.S. 990 , 990, 101 S.Ct. 1688 -1689, 68 L.Ed.2d 189 (1981).

Conversely, where two offenses are separate under the required evidence test, there still may be a merger for sentencing purposes based on considerations such as the rule of lenity, historical treatment, judicial decisions which generally hold that the offenses merge, and fairness. Biggus v. State, supra, 323 Md. at 356, 593 A.2d at 1068; Williams v. State, supra, 323 Md. at 320-322, 593 A.2d at 675; Monoker v. State, 321 Md. 214, 222-224 , 582 A.2d 525, 529 (1990); White v. State, 318 Md. 740, 746 , 569 A.2d 1271, 1274 (1990). See also Spitzinger v. State, 340 Md. 114, 131-144 , 665 A.2d 685, 693-700 (1995) (Raker, J., dissenting); State v. Lancaster, supra, 332 Md. at 394 , 631 A.2d at 458 . When merger is not based upon the required evidence test, and therefore neither offense is the greater in terms of elements, the offense carrying the highest maximum authorized sentence is ordinarily considered to be the greater offense.

Thus, “the offense carrying the lesser maximum penalty merges into the offense carrying the greater penalty.” Williams v. State, supra, 323 Md. at 322, 593 A.2d at 676. See, e.g., White v. State, supra, 318 Md. at 747, 569 A.2d at 1274; State v. Jenkins, supra, 307 Md. at 521 , 515 A.2d at 475 . A question not previously decided by any decision of this Court, but presented by this case, concerns Maryland common law merger principles where the same conduct constitutes two offenses, one being a statewide common law offense or a statutory offense under an enactment by the General Assembly, and the other being a locally enacted offense. The two offenses involved in this case are the common law crime of battery and “aggressive panhandling” proscribed by a former Baltimore City ordinance.

II

The facts of the instant case are uncomplicated. Miles was tried before a jury in the Circuit Court for Baltimore City and convicted of common law battery and “aggressive panhandling” based on the events of April 2, 1994. On that after ²²² noon, Norman Morrison and two female companions had just parked their cars along a Baltimore City street when Miles approached them asking for money. Although they told him no, Miles followed them and continued to ask for money.

Morrison told his two companions to keep walking, while he went in a different direction, apparently because he feared for their safety. Miles followed Morrison, tapped him on the shoulder, and punched him in the face, cracking his glasses and cutting him under his eye. Morrison contacted the police and later identified Miles as his assailant from a photographic array. Miles was charged with common law battery as well as “aggressive panhandling” in violation of former Art. 19, § 249, of the Baltimore City Code.

The record makes it absolutely clear that the prosecution of both charges was based on the same act, namely Miles’s punching Morrison in the face. Miles was convicted of both offenses. The circuit court sentenced Miles to 10 years imprisonment for battery and a consecutive 90-day term of imprisonment for aggressive panhandling. Miles appealed to the Court of Special Appeals, arguing, inter alia, that his conviction for battery should have merged into his conviction for. aggressive panhandling, inasmuch as all of the elements of battery were included in the elements of aggressive panhandling.

Miles claimed that battery is a lesser-included offense of aggressive panhandling under the required evidence test. The Court of Special Appeals applied the required evidence test and held that battery was not a lesser-ineluded offense of aggressive panhandling because, in that court’s view, each offense required proof of an element not required by the other. To convict for aggressive panhandling, the State was required to prove that Miles asked Mr. Morrison for money in a public place and also acted in one of six specified ways. 2 Although it was unclear under which of the six delineated ²²³ actions the jury convicted Miles, the Court of Special Appeals assumed that it was former Art. 19, § 249(b)(2)(h), which prohibits “touching another person in the course of panhandling without that person’s consent.” According to the Court of Special Appeals, “[f]or the State to convict a defendant of battery, it must prove that the defendant used unlawful force with an intent to touch the victim.” The Court of Special Appeals noted that aggressive panhandling, as defined by the Baltimore City Code, required proof of a number of elements not required to establish battery, such as begging in a public place. The more difficult question, however, was whether battery contained any elements not included in aggressive panhandling.

The court found that, while both battery and aggressive panhandling each required an unconsented touching, battery included an additional element of intent not required to convict for aggressive panhandling. Thus, the intermediate appellate court held that each offense required proof of an element not required by the other, so that battery did not merge into aggressive panhandling. ²²⁴ Under our view of the merger issue, however, we need not and shall not decide whether each offense required proof of an element not required by the other.

III

The numerous merger cases previously decided by this Court have either involved statutory offenses under enactments of the General Assembly or common law offenses. Thus, heretofore we have only considered the merger of offenses which were enacted by or subject to the control of one legislative body. In all of these cases, we have first turned to the required evidence test as the usual standard for determining merger questions. We have also looked at express legislative intent, the rule of lenity, history, treatment by other jurisdictions, and fairness.

We are aware of no case, however, in this jurisdiction or elsewhere, which holds that the required evidence test should be employed to merge a state common law or statutory offense into an offense under a locally enacted ordinance. The early American common law view was that offenses under state law and offenses under locally enacted ordinances constitute separate and distinct crimes, even when they proscribe the same conduct. See, e.g., Norwood v. Wiseman, 141 Md. 696, 700 , 119 A. 688, 690 (1922); Rossberg v. State, 111 Md. 394, 414 , 74 A. 581, 583 (1909) (“ ‘The State law and the [municipal] by-law may both stand together if not inconsistent. Indeed, an act may be a penal offence under the laws of the State, and further penalties, under proper legislative authority, [may] be imposed for its commission by municipal by-laws, and the enforcement of the one would not preclude the enforcement of the other,’ ” quoting Cooley’s Constitutional Limitations, 421 (5th Ed.)); Shafer v. Mumma, 17 Md. 331, 336 (1861); Mayor and Aldermen, etc. v. Allaire, 14 Ala. 400, 403 (1848) (offenses “against the corporation and the State, we have seen are distinguishable, and wholly disconnected”); Van Buren v. Wells, 53 Ark. 368, 374 , 14 S.W. 38 , 39 (1890) (“When made penal by the State and the city or town, each act becomes a separate offense against the State and the munici ²²⁵ pality.

In that event the penalty imposed by the city or town is superadded to that fixed by the general law, on account of the additional wrong done—for the offense against the municipality”); C. Theisen v. W.H.H. McDavid, City Marshal, 34 Fla. 440, 443 , 16 So. 321 , 322 (1894) (an “offender may be tried and punished for the same act under both [an] ordinance and [a] State law”); Kemper v. Commonwealth, 85 Ky. 219, 222 , 3 S.W. 159, 160 (1887) (offenses “against the city and the State, although consisting of the same act, are quite distinguishable, and the prosecution for each offense proceeds upon different grounds”); State v. Lee, 29 Minn. 445, 453 , 13 N.W. 913, 915 (1882) (“The same act, prohibited by both the city and the state, may thus constitute two offences, which are intrinsically and legally distinguishable. In support of this proposition the authorities are abundant and nearly unanimous”). See also, e.g., Hankins v. The People, 106 Ill. 628 (1883); Wragg v. Penn Township, 94 Ill. 11 (1879); Town of Bloomfield v. Trimble, 54 Iowa 399 , 6 N.W. 586 (1880); Louisiana v. Clifford, 45 La. Ann. 980, 13 So. 281 (1893); New Jersey v. Plunkett, 3 Har. 5 (N.J.1840); Oregon v. Bergman, 6 Or. 341 (1877); Oregon v. Sly, 4 Or. 277 (1872); City Council v. O’Donnell, 29 S.C. 355 , 7 S.E. 523 (1888); Greenwood v. State, 65 Tenn. 567 , 6 Baxt. 567 (1873).

The earlier view that state offenses and locally enacted offenses are treated as separate and distinct has been modified, because of double jeopardy principles, with respect to successive prosecutions. Thus, where a state offense and a locally enacted offense would be deemed the same under double jeopardy principles, a conviction or acquittal for one would ordinarily be a bar to a subsequent prosecution for the other. Waller v. Florida, 397 U.S. 387 , 90 S.Ct. 1184 , 25 L.Ed.2d 435 (1970); Thomas v. State, 277 Md. 257 , 267 n. 5, 353 A.2d 240 , 246 n. 5 (1976). Double jeopardy principles may also require modification of the traditional common law view, under certain circumstances, with regard to the imposition of multiple punishments. ²²⁶ Nevertheless, the defendant makes no argument in this Court that double jeopardy principles required that his battery conviction under state law merge into his aggressive panhandling conviction under the local ordinance.

Moreover, we question whether an argument to this effect would be very persuasive. Cf. State v. Lancaster, supra, 332 Md. at 403 , 631 A.2d at 462-463 (majority opinion), 332 Md. at 422-425 , 631 A.2d at 473-474 (McAuliffe, J., dissenting), 332 Md. at 434-435 , 631 A.2d at 478-479 (Chasanow, J., dissenting). Since, however, no argument based upon the double jeopardy prohibition has been made in this case, we need not explore the matter further.

In light of the traditional common law principle that a state offense and a locally enacted offense are normally treated as separate and distinct, regardless of the elements of each, a state offense will not be deemed to be a lesser included offense of a locally enacted offense for purposes of merger under Maryland common law. The state offense will not, under the required evidence test, merge into an offense created by an ordinance enacted by a county or a municipality. In addition to its common law foundation, this result is supported by sound public policy. Generally, locally enacted ordinances have a lesser status than state