Nightingale v. State

ADKINS, Judge. The question put to us in these cases is whether separate convictions and sentences for both child abuse and second, third, or fourth degree sexual offense [are] improper where the State relies on and proves the sexual offense to sustain the child abuse conviction? The Court of Special Appeals answered this question in the negative. Although we cannot determine with precision whether the convictions of child abuse were sustained by the sexual offense convictions, that might have been the case.

Faced with this sort of ambiguity, we shall reverse the Court of Special Appeals. We have two petitioners before us. One, Carol Nightingale (Nightingale), was tried in the Circuit Court for Carroll County on a six-count criminal information that charged him with second degree rape (Art. 27, § 463(a)(3)), incest (Art. 27, § 335), child abuse (Art. 27, § 35A), common law battery, perverted practice (Art. 27, § 554), and second ⁷⁰¹ degree sexual offense (Art. 27, § 464A(a)(3)). 1 Each crime was alleged to have been committed “on or about 1977 to 1982.” The victim of each offense was named as his daughter, “a child under 14 years of age, [Nightingale] being at least four years older than the victim____” The daughter testified that on various occasions during the years in question her father had engaged in sexual activity with her, beginning with fondling and culminating with vaginal intercourse, fellatio, and cunnilingus. The court directed judgments of acquittal on the battery and perverted practices charges.

The jury acquitted on the second degree rape and incest charges. It convicted Nightingale of child abuse and sexual offense in the second degree. He received two consecutive 15-year sentences. The Court of Special Appeals affirmed in an unreported opinion.

Nightingale v. State, No. 1380, Sept. Term, 1986 (filed 18 May 1987). The second petitioner, Albert James Joseph Myers, Sr., (Myers), was tried in the Circuit Court for Frederick County on three consolidated criminal informations. Number 7317 charged him with second degree (Art. 27, § 464A(a)(8)), third degree (Art. 27, § 464B(a)(3)), and fourth degree (Art. 27, § 464C(a)(l)) sexual offense, and child abuse (Art. 27, § 35A). Each of these crimes was alleged to have been committed “between November, 1983 through February, 1985” on the person of his daughter, “who was then and there under fourteen ... years of age and the said ...

Myers being four ... or more years older____” Number 7819 charged Myers with child abuse and third and fourth degree sexual offenses “on or about August 3, 1985,” the victim again being named as his daughter. 2 At trial the daughter testified that Myers had engaged in sexual activity with her that included fondling, fellatio, and ⁷⁰² anal intercourse. The 3 August 1985 charges involved a single incident in which, the daughter said, Myers had thrust his hand inside her panties and touched her vagina. The jury convicted Myers of all charges. He received four concurrent sentences under information No. 7317, the longest sentence being 20 years for second degree sexual offense.

Under No. 7319 he received three concurrent sentences, the longest being 15 years for child abuse, with 10 years suspended. The No. 7319 sentences were made consecutive to those imposed in No. 7317. The Court of Special Appeals affirmed in an unreported opinion. Myers v. State, No. 1513, Sept. Term, 1986 (filed 19 May 1987).

The Public Defender filed a certiorari petition encompassing both cases and posing the question we have quoted at the outset of this opinion. We granted the petition. 310 Md. 567 , 530 A.2d 742 (1987). Nightingale and Myers argue that for double jeopardy purposes, their convictions and sentences for child abuse and sexual offenses cannot stand because the crimes are the same under the required evidence test of Blockburger v. United States, 284 U.S. 299 , 52 S.Ct. 180 , 76 L.Ed. 306 (1932), as applied by us in cases such as State v. Frye, 283 Md. 709 , 393 A.2d 1372 (1978), Newton v. State, 280 Md. 260 , 373 A.2d 262 (1977), and Thomas v. State, 277 Md. 257 , 353 A.2d 240 (1976). In the alternative, petitioners urge us to invoke the “rule of lenity” we recently discussed in Dillsworth v. State, 308 Md. 354 , 519 A.2d 1269 (1987).

The State insists that Nightingale and Myers are not entitled to the benefit of either rule. We need address only petitioners’s first contention. The double jeopardy clause of the fifth amendment to the United States Constitution provides, in part, that no one shall “be subject for the same offence to be twice put in jeopardy of life or limb____” It applies to the states. Benton v. Maryland, 395 U.S. 784, 787, 89 S.Ct. 2056, 2058 , 23 L.Ed.2d 707, 711 (1969).

In the context of the case now before us, it protects against multiple convictions and sentences for the same offense. Newton, 280 Md. at 263-265 , ⁷⁰³ 373 A.2d at 264-265 . Under “both federal double jeopardy principles and Maryland merger law, the test for determining the identity of offenses is the required evidence test.” Id. at 268 , 373 A.2d at 266 . This test we stated thus in Newton : If each offense requires proof of a fact which the other does not, the offenses are not the same and do not merge.

However, if only one offense requires proof of a fact which the other does not, the offenses are deemed the same, and separate sentences for each offense are prohibited. 280 Md. at 268 , 373 A.2d at 266 . We turn to the several offenses involved in this case in order to apply the test. Article 27, § 35A, proscribes child abuse. 3 The elements of this offense, in its broadest aspect, are that (1) an individual under the age of 18 (2) sustain physical injury or sexual abuse (3) at the hands of a parent or someone responsible for care, custody, or supervision of the victim. The sexual offenses, in their several degrees, are somewhat more complex.

The second, third, and fourth degree offenses involved here (Art. 27, §§ 464A(a)(3), 4 464B(a)(3), 5 ⁷⁰⁴ and 4640(a)(1), 6 all have a common element: that the activity be for the sexual arousal, gratification or abuse of the actor or the victim. A sexual offense in the second degree (under § 464A(a)(3)) must involve a “sexual act” as defined in the statute, and a specified age differential between actor and victim, see n. 4, supra. Second and third degree ⁷⁰⁵ offenses require “sexual contact” as defined, and either an age differential (§ 464B(a)(3)) or lack of consent (§ 4640(a)(1)); see nn. 5 & 6, supra. It is apparent, then, that child abuse, taken in its broadest sense, involves certain elements {e.g., physical harm and a particular relationship between actor and victim) that none of the sexual offenses do.

By the same token, each of the sexual offenses requires some elements {e.g., performance of a sexual act or sexual contact and sexual arousal or gratification) that child abuse does not. But the analysis does not end at this point. When a multi-purpose criminal statute is involved, we refine it by looking at the alternative elements relevant to the case at hand. We took this approach in Newton, supra, in which we held that an underlying felony “and murder committed in the perpetration of that felony constitute, under the required evidence test, double punishment for the same offense in violation of the Fifth Amendment’s double jeopardy clause.” 280 Md. at 273-274 , 373 A.2d at 269 [footnote omitted].

First degree murder may be committed in various ways, for example by a “wilful, deliberate and premeditated killing” (Art. 27, § 407) or by a killing committed during the commission of a felony enumerated in Article 27, § 410. There are other types of first degree murder as well. See Art. 27, §§ 408-409. Commission of a felony is not an element of premeditated murder; killing is not an element of any of the § 410 felonies.

Nevertheless, in Newton we looked to the alternative elements involved in the felony murder, and concluded that there was merger. See also Whalen v. United States, 445 U.S. 684, 694 , 100 S.Ct. 1432, 1439 , 63 L.Ed.2d 715, 725 (1980), and Harris v. Oklahoma, 433 U.S. 682 , 97 S.Ct. 2912 , 53 L.Ed.2d 1054 (1977). In Thomas v. State, supra, we employed the same sort of analysis. The issue there was whether Art. 27, § 349 and Art. 66V2, § 4-102 (now § 14-102 of the Transportation Article) involved the same offense for double jeopardy purposes.

The latter section proscribed driving an automo ⁷⁰⁶ bile without the owner’s consent “with intent temporarily to deprive the owner of” possession of the vehicle. The former made it a crime for a person to “enter or [be] upon the premises of any other person ... [to] against the will and consent of said person ... wilfully take and carry away ... any ... vehicle____” It was noted that § 349 in one aspect required “entry” and could also apply to the taking of property other than motor vehicles, whereas § 4-102 required driving and applied only to motor vehicles. The offenses, the State argued, were not the same. We disagreed.

Judge Eldridge, for the Court, noted that § 349’s provisions were in the disjunctive. “The offense can be established either by showing an entry and a taking or by showing a taking of a vehicle from wherever it may be located.” 277 Md. at 269 , 353 A.2d at 247-248 . Thus, despite differences in the statutes, under the circumstances of the case and for double jeopardy purposes, “the § 4-102 offense and the § 349 offense as charged in the indictment in this case are deemed to be the same” because “the same evidence necessary to convict on the § 4-102 offense would always be sufficient to establish a § 349 offense such as alleged here.” Id. at 270, 353 A.2d at 248 . See also Illinois v. Vitale, 447 U.S. 410 , 100 S.Ct. 2260 , 65 L.Ed.2d 228 (1980). In State v. Boozer, 304 Md. 98 , 497 A.2d 1129 (1985), we recognized that Art. 27, § 464C was not a statute that created but a single offense; instead, it proscribes several different types of conduct, which may be treated as separate statutory offenses for double jeopardy purposes.

The same is clearly true of the other sexual offense statutes, and of the child abuse statute. When, as here, a multi-purpose criminal statute is involved, the court must construct from the alternative elements within the statute the particular formulation that applies to the case at hand. It should rid the statute of alternative elements that do not apply. It must, in other words, treat a