Twigg v. State

WOODWARD, J. On August 3, 2011, a jury in the Circuit Court for Charles County found appellant, Donald R. Twigg, guilty of second degree rape, third degree sexual offense, incest, and sexual child abuse. The victim was appellant’s minor daughter, and the offenses occurred between the years 1974 and 1979. On October 17, 2011, the circuit court imposed a separate sentence on each conviction, to be served consecutively, totaling forty years of incarceration, followed by a fifteen-year suspended sentence for the sexual child abuse conviction, with five years of probation. On appeal to this Court, appellant presents one issue for review, 1 which we have rephrased as a question: Did the trial court err in imposing separate sentences on appellant for second degree rape, third degree sexual offense, and incest?

We will answer this question in the affirmative, and vacate all of the sentences imposed on appellant and remand the case for the imposition of a new sentence. ²⁶⁴ BACKGROUND In the underlying criminal action, appellant was indicted by a Grand Jury in Charles County, Maryland on October 29, 2010, on six counts: (1) sexual child abuse; (2) carnal knowledge; (3) second degree rape; (4) second degree sexual offense; (5) third degree sexual offense; and (6) incest. The victim of all of the charges was appellant’s daughter, Ms. M., who was born on March 26,1964. The offenses charged in the indictment allegedly occurred from 1974 to 1979, when Ms. M. was nine to fourteen years old. On August 2 and 3, 2011, appellant was tried in the circuit court before a jury on all six charges.

At trial, Ms. M. testified that, beginning when she “was around the age of 7 years old,” appellant began to sexually abuse her, and the abuse continued until she was “[r]oughly 15 and A” Specifically, Ms. M. stated that, while she was living at home, appellant would come into her room at night and put his hand under her shirt or nightgown, which later progressed to appellant putting “his finger inside of [her] vagina and ... [her] hand on [appellant’s] penis ... until he had an orgasm.” In addition, Ms. M. testified that, “around age 12, [appellant] started to penetrate [her] with his penis.” Ms. M. indicated that the instances of penetration ceased when she was approximately fifteen and a half years old. Ms. M. said that overall, the incidents of vaginal intercourse occurred “several times.” According to Ms. M., these incidents occurred in the basement of the family home and in appellant’s van in nearby parking lots. Ms. M. also acknowledged that she was currently involved in several lawsuits against appellant concerning family property and bank accounts. She testified, however, that the property disputes were not the reason that she had come forward with allegations of sexual abuse.

Detective Corporal Kenneth Klezia, of the Charles County Sheriffs Office’s Special Victims Unit, testified that, on October 9, 2010, he met with Ms. M. to conduct a recorded telephone call between Ms. M. and appellant. During the ²⁶⁵ recorded conversation, appellant stated that he always used condoms when having sex with Ms. M. to prevent pregnancy. At the close of the State’s case-in-chief, appellant moved for judgment of acquittal pertaining to the second degree sexual offense charge, which was granted. Appellant then testified in his own defense, denying all allegations of sexual abuse and claiming a misunderstanding regarding the recorded telephone conversation.

In addition, appellant testified to several recent disputes between himself and Ms. M. involving jewelry, money, and property. At the close of all of the evidence, appellant moved for judgment of acquittal as to the carnal knowledge count, which the trial court took under advisement. The jury returned verdicts of guilty on the charges of: sexual child abuse (from July 1, 1974 to January 1, 1979); carnal knowledge (from March 25, 1974 to June 30, 1976); second degree rape (from July 1, 1976 to March 25, 1978); third degree sexual offense (from July 1, 1976 to March 25, 1978); and incest (from March 25, 1974 to January 1, 1979). The court then granted appellant’s motion for judgment of acquittal as to the carnal knowledge count.

On October 17, 2011, the circuit court sentenced appellant to consecutive sentences of: twenty years for second degree rape; ten years for third degree sexual offense; ten years for incest; and a suspended sentence of fifteen years for sexual child abuse, with five years’ supervised probation. Appellant timely noted an appeal to this Court. STANDARD OF REVIEW In Khalifa v. State, the Court of Appeals explained the standard of review governing a constitutional claim: “When a claim is based upon a violation of a constitutional right it is our obligation to make an independent constitutional appraisal from the entire record. But this Court is not a finder of facts; we do not judge the credibility of the witnesses nor do we initially weigh the evidence to determine the facts underlying the constitutional claim.

It is the ²⁶⁶ function of the trial court to ascertain the circumstances on which the constitutional claim is based. So, in making our independent appraisal, we accept the findings of the trial judge as to what are the underlying facts unless he is clearly in error. We then re-weigh the facts as accepted in order to determine the ultimate mixed question of law and fact, namely, was there a violation of a constitutional right as claimed.” 382 Md. 400, 417 , 855 A.2d 1175 (2004) (quoting Harris v. State, 303 Md. 685 , 496 A.2d 1074 (1985)). The Court of Appeals further counseled that, “although we do not engage in de novo fact-finding, our application of the law to the facts is de novo.” Khalifa, 382 Md. at 417 , 855 A.2d 1175 (citation omitted).

DISCUSSION On appeal to this Court, appellant argues that “the application of principles of double jeopardy provide[ ] that the convictions and/or sentences for second degree rape, third degree sexual offense, and/or incest must merge into the conviction and/or sentence for sexual child abuse.” Appellant cites to Nightingale v. State, 312 Md. 699 , 542 A.2d 373 (1988), in support of the proposition that, “separate judgments for child abuse and underlying sexual offenses of any kind or degree violate the prohibition against double jeopardy.” Appellant argues that, “although the Legislature amended the law pertaining to child abuse in response to Nightingale in order to allow separate sentences for child abuse and the underlying conduct, there was no provision for retrospective application of the change” that would apply to appellant’s conduct from 1974 to 1979. Any such retrospective application, according to appellant, would violate both federal and state constitutional prohibitions against ex post facto laws. Appellant concludes that, because the several sex offenses merge into the sexual child abuse for sentencing purposes, the “judgments on the charges of second degree rape, third degree sexual offense, and incest” must be vacated. ²⁶⁷ In response, the State argues that, “[w]hen a legislature has clearly indicated that it intends to permit multiple punishment[s] for offenses that otherwise would be considered the ‘same offense’ pursuant to the test set forth in Blockburger v. United States, 284 U.S. 299 , 52 S.Ct. 180 , 76 L.Ed. 306 (1932), double jeopardy principles do not prevent the imposition of multiple sentences in a single trial.” Further, the State asserts that the General Assembly has provided “unmistakably clear legislative intent to permit separate sentences,” and thus, appellant’s sentences are not violative of double jeopardy. Accordingly, the State concludes that “[t]he trial court properly imposed separate sentences on [appellant’s convictions for child abuse, second degree rape, third degree sexual offense, and incest.” We agree with appellant and will explain.

I. The Required Evidence Test “The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution, made applicable to the states by the Fourteenth Amendment, provides the criminally accused with protection from, inter alia, multiple punishment stemming from the same offense.” Purnell v. State, 375 Md. 678, 691 , 827 A.2d 68 (2003), superseded by statute on other grounds as recognized in Alexis v. State, 209 Md.App. 630, 677 , 61 A.3d 104 (2013). “[Djespite the lack of a double jeopardy clause in its Constitution, Maryland’s common law provides protection from double jeopardy to the criminally accused.” Purnell, 375 Md. at 691 , 827 A.2d 68 . “Multiple punishment challenges generally arise in two different sets of circumstances: those involving two separate statutes embracing the same criminal conduct, and those involving a single statute creating multiple units of prosecution for conduct occurring as a part of the same criminal transaction.” Richmond v. State, 326 Md. 257, 261 , 604 A.2d 483 (1992) (citations omitted). ²⁶⁸ When resolving whether two offenses are deemed the same for the purpose of a double jeopardy challenge, Maryland courts have generally applied the Blockburger “required evidence test” set forth by the Supreme Court in Blockburger v. United States, 284 U.S. 299 , 52 S.Ct. 180 , 76 L.Ed. 306 (1932). See Miles v. State, 349 Md. 215, 219 , 707 A.2d 841 (1998) (“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.’ ”). The Blockburger 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.” State v. Jenkins, 307 Md. 501, 517 , 515 A.2d 465 (1986) (citations omitted). In State v. Lancaster, 332 Md. 385 , 631 A.2d 453 (1993), the defendant was found guilty pursuant to two statutes: Maryland Code (1957, 1992 Repl.Vol.), Art. 27, § 464C(a)(2), which prohibits, inter alia, engaging in fellatio “with another person who is 14 or 15 years of age and the person performing the sexual act is four or more years older than the other person.” Based upon the same acts of fellatio, the defendant was also found guilty of committing an oral sex act in violation of Art. 27, § 554, which makes it unlawful, inter alia, for a person to take “into his or her mouth the sexual organ of any other person.... ” Id. at 389-90, 631 A.2d 453 .

After receiving separate sentences under each statute, the defendant appealed to the Court of Special Appeals. Id. at 390, 631 A.2d 453 . The Court of Special Appeals vacated the sentence imposed under § 554, reasoning that, “the § 554 offense was an included offense which, for sentencing purposes, merged into the § 464C(a)(2) offense.” Id. at 390-91, 631 A.2d 453 . The Court of Appeals granted certiorari to “consider the State’s argument that the § 554 offense charged in this case has a distinct element not found in the § 464C(a)(2) offense ²⁶⁹ and that, for this reason, the § 554 offense is not included within the § 4640(a)(2) offense and therefore does not under Maryland law merge into the § 4640(a)(2) offense.” Id.

The Court of Appeals explained that, under Maryland law, the Blockburger required evidence test was to be utilized as a “threshold test,” and that “[i]t is only when there is no merger under the required evidence test that other criteria are considered to determine whether the offenses should merge.” Id. at 394 , 631 A.2d 453 . The Court discussed the required evidence test in detail: We have often pointed out that under settled Maryland common law, the usual rule for deciding whether one criminal offense merges into another or whether one is a lesser included offense of the other, when both offenses are based on the same act or acts, is the so-called required evidence test. 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. 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 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[.] When there is a merger under the required evidence test, separate sentences are normally precluded. Instead, a sentence may be imposed only for the offense having the additional element or elements. When applying the required evidence test to multipurpose offenses, i.e., offenses having alternative ele ²⁷⁰ ments, a court must examine the alternative elements relevant to the case at issue.

Id. at 391-92, 631 A.2d 453 (internal alterations, quotations, ellipses, and citations omitted) (emphasis added). The Court of Appeals identified § 464C(a)(2) and § 554 as “multi-purpose” statutory provisions — ie., containing alternative elements in the disjunctive — and explained that in analyzing a multi-purpose statute a court must apply the required evidence test to the element or elements before it. Id. at 398-99, 631 A.2d 453 . The Court proceeded, applying the required evidence test to the multi-purpose § 554 statute: The statutory element of § 554 relevant to this case is the defendant’s “taking into his ... mouth the sexual organ of any other person.... ” This element would appear to be fully encompassed by the elements of the § 464C(a)(2) offense, because a forbidden “sexual act” under § 464C(a)(2) is statutorily defined as including fellatio and cunnilingus.

The § 554 offense has no additional elements. A person cannot commit a fourth degree sexual offense under § 464C, as charged in this case, without also violating § 554. Consequently, we reject the State’s argument that the § 554 offense of which the defendant was convicted contained an element distinct from the elements of the § 464C(a)(2) offense of which he was convicted. The State has not established any error in the Court of Special Appeals’ holding that the § 554 offense is an included offense and, for sentencing purposes, merges into the § 464C(a)(2) offense.

Id. at 401, 631 A.2d 453 . In Nightingale v. State, 312 Md. 699 , 542 A.2d 373 (1988), the Court of Appeals considered two defendants who claimed that their sentences for child abuse and sexual offenses could not stand, because the crimes were the same under the required evidence test of Blockburger. Id. at 702, 542 A.2d 373 . The first defendant, Nightingale, received two consecutive fifteen-year sentences for child abuse and second degree sexual offense, resulting from his conduct between 1977 and ²⁷¹ 1982. 2 Id. at 701 , 542 A.2d 373 .

The second defendant, Myers, was found guilty of two counts of child abuse, one count of second degree sexual offense, two counts of third degree sexual offense, and two counts of fourth degree sexual offense, on two consolidated informations stemming from his conduct from 1983 through 1985. Id. Myers received four concurrent sentences for the first criminal information (the longest being twenty years for second degree sexual offense), three concurrent sentences for the second criminal information (the longest being fifteen years for child abuse with ten years suspended); and the sentences for the second criminal information were made consecutive to those imposed in the first criminal information. Id. at 702 , 542 A.2d 373 .

The Court of Special Appeals affirmed the convictions and sentences of Nightingale and Myers in two unreported opinions. Id. at 701-02 , 542 A.2d 373 . The Court of Appeals granted certiorari to determine 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[.] Id. at 700 , 542 A.2d 373 . After analyzing the relevant statutes, the Court stated 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 element (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 ²⁷² it by looking at the alternative elements relevant to the case at hand. Id. at 705 , 542 A.2d 373 .

The Court then concluded that each jury could have found the defendant before it guilty of child abuse based solely on evidence of a sexual offense in some degree. If that were done, then the sexual offense became, in effect, a lesser included offense of sexual child abuse, and ... the offenses are the same for double jeopardy purposes. Id. at 708 , 542 A.2d 373 . The Court, however, could not merge the sexual offenses into the child abuse convictions under the required evidence test, because “we cannot tell whether these general verdicts of guilty were based on the use of sexual offenses as lesser included offenses (or elements) of child abuse, or whether the child abuse verdicts were based on other reasons (e.g., some sort of sexual molestation which the juries thought did not rise to the level of a sexual offense in any degree).” Id.

Nevertheless, the Court resolved the ambiguity in favor of the defendants and set aside the judgments on the sexual offense counts. Id. Turning now to the matter sub judice, it is clear to this Court that, pursuant to the Blockburger required evidence test as set forth in Lancaster and Nightingale , appellant’s convictions for second degree rape, third degree sexual offense, and incest merge into the conviction for sexual child abuse for sentencing purposes. Nightingale specifically provides that, if a child abuse conviction is based solely on underlying sex offenses, the underlying offenses will merge into the child abuse conviction for sentencing purposes.

The record before this Court demonstrates that the State based its argument for sexual child abuse solely on the underlying sexual offenses committed by appellant, i.e., second degree rape, third degree sexual offense, incest, and carnal knowledge from 1974 through 1979. Our analysis, however, is not complete, because we next must determine whether the legislative ²⁷³ intent underlying the child abuse statute prevents merger from occurring in the instant case.

II

Legislative Intent The Supreme Court has carved out an exception to the application of merger when the required evidence test under Blockburger has been satisfied. In Albernaz v. United States, 450 U.S. 333 , 101 S.Ct. 1137 , 67 L.Ed.2d 275 (1981), the Supreme Court considered whether sentences for conspiracy to import marijuana and conspiracy to distribute marijuana were permitted under the required evidence test. Id. at 335 , 101 S.Ct. 1137 . Petitioners received consecutive sentences under each statutory provision, with the total sentence exceeding the maximum that could have been imposed under either conspiracy to import or conspiracy to distribute.

Id. As an initial matter, the Court reviewed the Blockburger test, labeling it a “rule of statutory construction ... to be used to determine whether Congress has in a given situation provided that two statutory offenses may be punished cumulatively.” Id. at 337 , 101 S.Ct. 1137 (internal quotations omitted). The Court explained: Thus, the question of what punishments are constitutionally permissible is not different from the question of what punishments the Legislative Branch intended to be imposed. Where Congress intended, as it did here, to impose multiple punishments, imposition of such sentences does not violate the Constitution.

Id. at 344 , 101 S.Ct. 1137 . The Court then proceeded to affirm the sentences of the petitioners, determining that the required evidence test was superceded by the fact that “Congress intended to permit the imposition of consecutive sentences for violations of § 846 and § 963.” Id. at 343, 101 S.Ct. 1137 . ²⁷⁴ Less than two years later, in Missouri v. Hunter, 459 U.S. 359 , 103 S.Ct. 673 , 74 L.Ed.2d 535 (1983), the Supreme Court granted certiorari to decide whether the prosecution and conviction of a criminal defendant in a single trial on both a charge of “armed criminal action” and a charge of first degree robbery — the underlying felony — violates the Double Jeopardy Clause of the Fifth Amendment. Id. at 360 , 103 S.Ct. 673 . The respondent was sentenced, pursuant to Missouri state law, to ten years for robbery and a consecutive fifteen years for armed criminal action.

Id. at 362 , 103 S.Ct. 673 . The Supreme Court expressly rejected the view of the Missouri Supreme Court, which concluded that the offenses were “the same offense” pursuant to Blockburger , and thus separate sentences violated the double jeopardy clause. Id. at 364-65 , 103 S.Ct. 673 . The Court emphasized the priority of legislative intent over the Blockburger required evidence test, stating: Where, as here, a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the “same” conduct under Blockburger , a court’s task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial.

Id. at 368-69 , 103 S.Ct. 673 . Upon remanding the matter back to the state court, the Supreme Court concluded that, “[h]ere, the Missouri Legislature has made its intent crystal clear. Legislatures, not courts, prescribe the scope of punishments.” 3 Id. at 368 , 103 S.Ct. 673 . ²⁷⁵ Shortly following the Albernaz and Hunter decisions, the Court of Appeals had occasion to scrutinize the legislative intent underlying the then child abuse statute, Maryland Code (1957, 1987 Repl. Vol), Art. 27, § 35A, the same statute under which appellant in the case sub judice was convicted. 4 White v. State, 318 Md. 740 , 569 A.2d 1271 (1990).

White was convicted in the circuit court of first degree murder and child abuse. Id. at 741 , 569 A.2d 1271 . White received a sentence of life imprisonment for the first degree murder conviction and a consecutive fifteen-year prison term for the child abuse conviction under Art. 27, § 35A. Id.

The Court of Appeals granted certiorari to determine “whether a conviction of child abuse should merge into a murder conviction where both convictions are based on the same act or acts.” Id. at 741-42, 569 A.2d 1271 . As to the legislative intent underlying Art. 27, § 35A, the Court declared that [tjhere is nothing in the language of the Child Abuse Statute, or in its legislative history, indicating whether the General Assembly intended that a parent or one having custody should be sentenced for both child abuse and murder where the malicious act causing physical injury ultimately led to the death of the child. Clearly, in this regard the statute is ambiguous as to whether separate punishment is in order. Id. at 748, 569 A.2d 1271 (emphasis added).

The Court concluded that, “in the absence of express statutory language to the contrary, a child abuse conviction merges into a homicide conviction when both are based on the same act or acts.” Id. Although we indicated above that appellant’s convictions for second degree rape, third degree sexual offense, and incest would merge into his conviction for sexual child abuse for sentencing purposes pursuant to the required evidence test, ²⁷⁶ Hunter, Albernaz, and subsequent Maryland decisions instruct that legislative intent can act to override convictions that would otherwise merge under Blockburger . In White , the Court of Appeals recognized that Albernaz allowed for the General Assembly to provide for separate punishments in the child abuse statute for the underlying offenses, but determined that the legislative intent of Art. 27, § 35A on this subject was ambiguous. White, 318 Md. at 745, 748 , 569 A.2d 1271 .

In the instant matter, because the acts that form the basis of appellant’s convictions occurred between 1974 and 1979, he was subject to the child abuse statute existing during that time — namely, Art. 27, § 35A. Because, under White , there is no clear legislative intent behind Art. 27, § 35A to provide separate punishment for any offense underlying the child abuse conviction, our determination that the Blockburger required evidence test mandates the merger of appellant’s sexual offense convictions into the sexual child abuse conviction for sentencing purposes remains undisturbed, at least for the moment. We must now consider the 1990 amendment by the Maryland General Assembly to the child abuse statute.

III

The 1990 Amendment Following the Court of Appeals’ decisions in Nightingale and White , the General Assembly amended the Maryland child abuse statute by passing House Bill 815, and its companion bill, Senate Bill 421. The amendment added the following language to Art. 27, § 35A: (b)(2) The sentence imposed under this section may be imposed separate from and consecutive to or concurrent with a sentence for any offense based upon the act or acts