Starkey v. State

KENNEY, Judge. Adam Starkey, appellant, entered a plea of not guilty and proceeded to trial on an agreed statement of facts.. The trial court found appellant guilty of a third degree sexual offense and sentenced him to eighteen months, all of which were suspended, two hundred hours of community service, and one year of probation. On appeal, appellant raises two issues, which we have slightly reworded: I. Was the evidence sufficient to sustain appellant’s conviction for a third degree sexual offense?

II

Did the court err in denying appellant’s motion to dismiss the charging document because he should have been charged with unnatural or perverted sexual practices? We shall answer the first question in the affirmative, the second in the negative, and affirm the judgment of the circuit court. FACTUAL AND PROCEDURAL BACKGROUND A two-count criminal information charged appellant with a third degree sexual offense, in violation of Md.Code (1957, 1996 Repl.Vol., 2001 Supp.), Article 27, § 464B (“section 464B”), and a fourth degree sexual offense, in violation of Art. 27, § 464C (“section 464C”). Appellant tendered a plea of not guilty and trial proceeded on an agreed statement of facts.

Part of that agreed statement of facts included an interview appellant had with an investigating officer: Officer Horvath then spoke with the defendant, Adam Starkey. This is on the 9th of June, of the year 2001. He was advised that he was not in custody, he could leave at any time if he wished. He voluntarily then gave a written statement to Officer Horvath.

In the written statement, with the Court’s permission, and my efforts to read the writing, what he said was on — he stated May 25,1 believe— that’s I’m assuming a misstatement, referring to May 26th, ⁷⁰³ he said that he was out with a friend Chris, that he got a few calls on his car phone, from Sia, Hollis and Alex. Sia is the nickname for Anastasia G[.] Hollis refers to Hollis M[.] and Alex referring to Alexandra N[.] — he said telling him that Sia’s mother was out of town and that she may be — and she was having some people over and it sounded like they had been drinking, he said, so after two or three calls, he and Mr. Mank decided to stop by. He said, we got there around 11:30 p.m. to 12:30 a.m., when we got there, he said that the three girls and Stanley — referring to Stanley Gitame — were in the kitchen drinking and mixing drinks. He said, we all went down to the basement where we were drinking, watching TV and listening to music.

After something like one and a half to two hours, Sia and Stanley were kissing and touching and then went in the back room. When they came back there was some talk about them just having sex. Chris and Hollis were also kissing. Chris at first really didn’t want to because he was sick with a cold.

After a while Hollis was able to talk Chris into kissing and she asked him to go upstairs. He wrote, it took her a while to talk him into it, but then they went upstairs. The defendant wrote, Alex had been sitting with me for awhile, next to and on my lap. She kissed me because, as I told her, I would never make the first move.

Shortly after Hollis and Chris went upstairs, Alex asked me if I wanted to go into the back room, she want to give me oral sex. After making sure that she wanted to several times, what I told her was that if she really wanted to, then I want to but only if she wants to. She said she was sure, so at that point she gave me oral sex for some time, maybe twenty to thirty minutes. The reason I agreed to her doing this was that I had known her for a few years and since then she has had a bit of a crush on me.

At the time Alex and I were not drunk anymore. I think for the most part me and Stanley and Sia were not real drunk. Then he puts in parenthesis, not one hundred percent sure, we were back in the room. We could ⁷⁰⁴ hear the other talk about girls kissing.

When we came out of the room, Sia and Hollis were kissing each other, Sia and Stanley were kissing. Chris and Hollis and Hollis and Stanley also. We stayed for a little bit longer, then somewhere around 4 a.m., in parenthesis, not sure of exact time, we left to go home. A few days later I was on the internet talking to them and Sia had said that Stanley and Hollis had sex after we left.

If I can have just a moment? I believe it says, it seemed they were calling it rape but she had hooked up before in the night and had been really friendly. Hollis may ■ have been drunk and Stanley, too, but as far as any rape, I would have to say that he did not. They never said anything about her screaming or anything like that.

I think that it may have been more of a drinking act. Your Honor, as I indicated, Alexandra N[.] was fifteen years of age, the Defendant was twenty-one years of age. They engaged in an act of fellatio in which the penis of the Defendant, Adam Starkey, was within the mouth of Alexandra N[.] If anyone were called to testify, they would have identified the person I refer to as Adam Starkey as the individual seated at trial table with counsel to my right. The events occurred in Baltimore County, Maryland.

That’s the statement of facts. After recitation of the agreed statement of facts, appellant sought acquittal on the charge of third degree sexual offense. He argued that the State, proceeding under section 464B(a)(4), was required to prove that appellant had engaged in “a sexual act with another person who is 14 or 15 years of age and the person performing the sexual act is at least 21 years of age.” Focusing on the language “the person performing,” he contended that he did not perform fellatio but, instead, was the “performee ... actually the catcher and not the pitcher in this case,” and therefore, he could not be convicted under section 464B(a)(4). The court denied the motion, stating: ⁷⁰⁵ THE COURT: Okay.

I think your argument is interesting but unpersuasive. I mean it, when I try to — when I look at this, I don’t know whether it is inartfully worded or not but in my judgment when that particular act is ongoing, both parties are performing the act, not just one. I’m not going to read that as being merely an active verb for Ms. N[J The court found appellant guilty of a third degree sexual offense, and the State nolle prossed the remaining charge. Appellant then filed a timely motion for a new trial, setting forth the same argument that the court previously had denied.

DISCUSSION I. SUFFICIENCY OF THE EVIDENCE At oral argument, appellant’s counsel again argued that, in order to secure a conviction under this section, the State had to prove the following three elements: (1) that appellant engaged in a sexual act; (2) that the victim was 14 or 15 years of age; and (3) that appellant performed the sexual act. He conceded that the State had proven the first two elements, but not the third, arguing that appellant was not performing fellatio but, instead, was “receivfing] the victim’s performance of the sexual act of fellatio.” In other words, the person performing fellatio is only the person who takes the other’s penis into his or her mouth. In support, appellant relies upon State v. Lancaster, 332 Md. 385 , 631 A.2d 453 (1993). We, like the trial court, are not persuaded by appellant’s argument.

Because appellant’s argument concerns the meaning of “performing,” in the context of section 464B(a)(4), we begin our discussion with the canons of statutory construction. As the Court of Appeals has repeatedly iterated, “ ‘the cardinal rule of statutory construction is to ascertain and effectuate legislative intention.’ ” State v. Green, 367 Md. 61, 81 , 785 A.2d 1275 (2001) (citations omitted). When we interpret a statute, our starting point is always the text of the statute. Adamson v. Correctional Medical Services, Inc., 359 Md. 238, 251 , 753 A.2d 501 (2000). “[I]f the plain meaning of the ⁷⁰⁶ statutory language is clear and unambiguous, and consistent with both the broad purposes of the legislation, and the specific purpose of the provision being interpreted, our inquiry is at an end.” Breitenbach v. N.B. Handy Co., 366 Md. 467, 473 , 784 A.2d 569 (2001).

The plain meaning rule is, however, “elastic, rather than cast in stone,” and if “persuasive evidence exists outside the plain text of the statute, we do not turn a blind eye to it.” Adamson, 359 Md. at 251 , 753 A.2d 501 (citing Kaczorowski v. Mayor of Baltimore, 309 Md. 505, 513-14 , 525 A.2d 628 (1987)). When determining its meaning, “courts may consider the context in which a statute appears, including related statutes and legislative history.” Ridge Heating, Air Conditioning & Plumbing v. Brennen, 366 Md. 336, 350-51 , 783 A.2d 691 (2001). We also consider “the particular problem or problems the legislature was addressing, and the objectives it sought to attain.” Sinai Hospital of Baltimore v. Department of Employment & Training, 309 Md. 28, 40 , 522 A.2d 382 (1987). “This enables us to put the statute in controversy in its proper context and thereby avoid unreasonable or illogical results that defy common sense.” Adamson, 359 Md. at 252 , 753 A.2d 501 . a. Section 464B(a)(4) Section 464B(a)(4) provides that “[a] person is guilty of a sexual offense in the third degree if the person engages in [a] sexual act with another person who is 14 or 15 years of age and the person performing the sexual act is at least 21 years of age.” A sexual act, as defined in Art. 27, § 461(e) (“section 461(e)”), includes fellatio. b.

Definitions In considering the plain meaning of “performing,” we have examined several definitions. The Merriam-Webster’s Collegiate Dictionary 860-861 (10th ed. 2000) defines “perform” as “2: CARRY OUT, DO ... 1: to carry out an action or pattern of behavior: Act, Function.” The New Oxford American Dictionary 1270 (2001) defines “perform” as “1: Carry out, ⁷⁰⁷ accomplish or fulfill (an action, task or function).” One listing for “performing” reads: “of, relating to, or constituting an art (as drama) that involves public performance.” Merriam-Webster’s Collegiate Dictionary 861 (10th ed. 2000). The word “engage” is also relevant to our discussion. Blacks Law Dictionary 549 (7th ed. 1999) defines “engage” as “[tjo ... involve oneself; to take part in[.]” The American Heritage College Dictionary 1034 (4th ed. 2002) defines “engage” as “1.

To involve oneself or become occupied; participate.” As to the meaning of fellatio, the Court of Appeals, in Thomas v. State, 301 Md. 294, 321 , 483 A.2d 6 (1984), cert. denied, 470 U.S. 1088 , 105 S.Ct. 1856 , 85 L.Ed.2d 153 (1985), determined that the legislature “intended to give ‘fellatio’ its common, ordinary and well-accepted meaning.” The Court then quoted the following two definitions: (1) “an ‘offense committed with the male sexual organ and the mouth’ ” and (2) “ ‘the practice of obtaining sexual satisfaction by oral stimulation of the penis.’ ” Id. c. Legislative History In 1975, then Maryland Senate President Steny H. Hoyer chaired a committee entitled “Special Committee on Rape and Related Offenses.” Senate Judicial Proceedings Committee, Report on Senate Bill 358, at 4 (1976); see Biggus v. State, 323 Md. 339, 348 , 593 A.2d 1060 (1991). In the summer and fall of that year, the committee met “to hear[] testimony from persons interested in rape reform as well as those in opposition.” Id. At the conclusion of the hearings, Senate Bill 358, which was a “comprehensive overhaul of Maryland’s statutory and common law sexual crimes,” was introduced.

Id. The purpose of the bill, as stated in a report by the Senate Judicial Proceedings Committee, was to redefine the stigmatizing sexual crimes presently existing in Maryland in terms which are not gender specific and less likely to cause additional psychic trauma to the victim and to provide viable criminal sanctions for those transgressions ⁷⁰⁸ falling within the gap presently existing between the common law misdemeanor of assault and the felony of rape which is punishable by life imprisonment, and to remove from the prosecutorial process those acts between consenting adults presently punishable as sodomy and perverted practices. Senate Judicial Proceedings Committee, Report on Senate Bill 358, at 1 (1976). As introduced, the bill would have repealed the common law crimes of rape and sodomy and, also, the crimes of carnal knowledge and perverted practices.

Senate Judicial Proceedings Committee, Report on Senate Bill 358, at 1 (1976); see Lane v. State, 348 Md. 272, 286 , 703 A.2d 180 (1997). With respect to rape, “[a] major thrust of the bill, in that regard, was to treat unlawful vaginal intercourse more or less the same as other unlawful kinds of sexual assault.” Lane, 348 Md. at 286 , 703 A.2d 180 . After extensive amendments, the bill was enacted by Chapter 573 of the Acts of 1976. This enactment retained the sodomy and perverted practices statutes, but repealed former sections 461 through 462A and 464 of Art. 27, i.e., rape and carnal knowledge.

In place of these repealed sections, the enactment added new sections 461 through 464E under the subtitle “Sexual Offenses.” Under this framework, rape was retained as a “statutorily defined offense” but was split into two degrees. Lane, 348 Md. at 287 , 703 A.2d 180 . Specifically, sections 462 and' 463 addressed first and second degree rape, respectively. The legislature also created four degrees of sexual offenses. 1976 Maryland Laws ch. 573 at 1537-1539.

These new sexual offenses, set forth in sections 464 through 464C, proscribed conduct involving “sexual contact” or a “sexual act,” as defined in section 461. Section 461(e) defined “sexual contact” as “the intentional touching of any part of the victim’s or actor’s anal or genital areas or other intimate parts for the purposes of sexual arousal or gratification or for abuse of either party.” This definition also included the penetration by a part of the body, ⁷⁰⁹ other than “the penis, mouth, or tongue,” into the genital or anal opening, if the penetration was for the purpose of sexual arousal or gratification or “for abuse of either party.” A “sexual act” included cunnilingus, fellatio, analingus, or anal intercourse, and “the penetration by any object into the genital or anal opening of another person’s body.” Lane, 348 Md. at 287 , 703 A.2d 180 . The statutes for first and second degree sexual offense essentially paralleled the statutes for first and second degree rape. “A first degree sexual offense [section 464] consists of engaging in a sexual act with another person under the same conditions that, if the act were vaginal intercourse, would constitute first degree rape; a second degree sexual offense [section 464A] consists of engaging in a sexual act with another person under circumstances that, if the act were vaginal intercourse, would constitute second degree rape.” Lane, 348 Md. at 287 , 703 A.2d 180 . The third degree sexual offense statute (section 464B) had three subsections that set forth alternative theories under which a person could be convicted. 1976 Maryland Laws ch. 573 at 1538.

The first, (a)(1), prevented a person from engaging in sexual contact against the will and without the consent of another person, coupled with certain aggravating factors such as using a weapon or inflicting serious physical injury. Id. The second, (a)(2), prohibited a person from engaging in sexual contact with another person who was mentally defective, mentally incapacitated, or physically helpless. Id.

The third, (a)(3), prevented a person from engaging in sexual contact with another person who was under fourteen years of age, when the person