Vogel v. State

MOYLAN, Judge. The appellant, Alfred P. Vogel, was convicted by a Montgomery County jury, presided over by Judge Calvin R. Sanders, of both 1) child abuse and 2) a third-degree sexual offense. He was sentenced to a term of five years imprisonment for the child abuse, with all but six months suspended. He was sentenced to a consecutive term of five years for the third-degree sexual offense, the execution of which was suspended.

Upon this appeal, the appellant raises the following six contentions: 1. That the evidence was not legally sufficient to support the convictions; 2. That under double jeopardy principles, he should not have been convicted separately and sentenced separately for both the child abuse and the third-degree sexual offense; 3. That the victim was erroneously permitted to testify about other crimes allegedly committed upon the victim by the appellant; ⁵⁹ 4.

That Judge Sanders erroneously permitted the cross-examination of the appellant’s wife to range beyond the scope of direct examination; 5. That Judge Sanders erroneously admitted testimony from the victim’s mother on redirect examination; and 6. That Judge Sanders relied upon an impermissible consideration in sentencing the appellant. There is no merit to the appellant’s claim with respect to legal insufficiency.

The child victim testified that on June 22, 1985, prior to driving to Milroy, Pennsylvania, the appellant performed an act of fellatio on the victim. There is no question but that the victim’s testimony was legally sufficient to support the verdict. The appellant’s sole reliance is upon the relentlessly overread case of Kucharczyk v. State, 235 Md. 334 , 201 A.2d 683 (1964). Kucharczyk does not remotely stand for the proposition for which it is so regularly cited—that marginal or even impeachable testimony is entitled to no weight.

As we pointed out in Bailey v. State, 16 Md.App. 83, 93-94 , 294 A.2d 123 (1972): “Trial testimony frequently is replete with contradictions and inconsistencies, major and minor. It is the quintessential approach of the Anglo-American trial system to rely fundamentally upon cross-examination, upon the introduction of prior inconsistent statements, upon impeachment devices generally, upon sequestration, upon oral argument to ferret out and to highlight such contradictions if and when they exist____ The extreme and peculiar facts of Kucharczyk produced a limited departure from that fundamental approach. Some appreciation of the limited utility of the so-called Kucharczyk doctrine may be gathered from the fact that it was never applied pre-Kucharczyk in a criminal appeal and it has never been applied post-Kucharczyk in a criminal appeal.” Cognizant that Kucharczyk has been drained of its spurious vitality, the appellant cleverly avoided mention of it even while urging its mischief upon us, citing as authority only a minimally apposite civil case, Kaufman v. Baltimore ⁶⁰ Transit Company, 197 Md. 141 , 78 A.2d 464 (1951), that had been relied upon in part by Kucharczyk. Kucharczyk is no more persuasive when travelling incognito than it is when flying its true colors.

The evidence, in short, was legally sufficient to support the convictions. We think the appellant’s second argument is well-taken. For present purposes, we will look to the conviction for child abuse as the flagship offense and then examine whether the third-degree sexual offense is or is not a lesser included offense for purposes of possible merger. Md.Ann. Code, Art. 27, § 35A(b) (1957, 1987 Repl.Vol.) provides: “A parent or other person who has permanent or temporary care or custody or responsibility for the supervision of a child who causes abuse to the child is guilty of a felony and on conviction is subject to imprisonment in the penitentiary not exceeding 15 years.” The pertinent element for present purposes is that of causing “abuse to the child.” Subsection (a)(2), in turn, provides, in the disjunctive, two forms of “abuse.” The first, not here pertinent, is the causing of physical injury to the child through cruel or inhumane treatment.

The second form of abuse, the only one remotely apposite to this case, is “sexual abuse of a child, whether physical injuries are sustained or not.” The statute then goes on to define “sexual abuse” as including, but not limited to, a “sexual offense in any degree.” The only theory of abuse put forward in this case was “sexual abuse” in the form of a sexual offense, to wit, the act of fellatio perpetrated by the appellant upon the child. Although the crime of child abuse might, in the abstract, be consummated by other modalities not involving the commission of a sexual offense, in this case the alternative form of the offense that was chosen and pursued did include that element. We are not talking about the question, normally ⁶¹ involved when considering the Blockburger 1 “same offense” test, of different evidence by which to prove a constant element, but rather of the very selection of the set of elements to be proved, the initial choice that has to be made when an offense comes in several alternative forms. The recent decision of the Court of Appeals in the case of Nightingale and Myers v. State, 312 Md. 699 , 542 A.2d 373 (1988), is dispositive in this regard.

As Judge Adkins there observed: “[E]ach 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 under the authorities we have cited, the offenses are the same for double jeopardy purposes. Indeed, with respect to criminal information No. 7319 in Myers’s case, the jury must have found a sexual offense as the basis of the child abuse verdict, because that information involved but a single incident of sexual contact.” See also Snowden v. State, 75 Md.App. 404 , 541 A.2d 998 (1988), dissenting opinion by Moylan, J. A critical distinction must be made between 1) the choice of elements to pinpoint the particular form of a crime that comes in various forms and 2) the choice of evidence to prove a given element of a crime. The former choice does not involve the Blockburger test; it is a choice that has to be made before the Blockburger test is even applied.

The latter choice does involve Blockburger and requires us to distinguish between “required evidence” and “actual evidence.” The distinction between “required evidence” and “actual evidence” is conceptually an elusive one and can probably best be pinned down by the use of example. When considering, for instance, the possible merger of 1) ⁶² simple assault into 2) assault with intent to murder, every element necessary to prove simple assault is also a required element for proving assault with intent to murder. Simple assault is, therefore, a lesser included crime which is merged or subsumed into the greater inclusive crime of assault with intent to murder. The same relationship holds true with respect to robbery and its necessarily included larceny and with respect to a consummated burglary and its necessarily included attempted burglary.

Thus, assault is a “required element” of or “required evidence” of assault with intent to murder; larceny is a “required element” of or “required evidence” of robbery. By contrast, the use of a handgun is not a “required element” or part of the “required evidence” of armed robbery. Armed robbery requires the use of a dangerous and deadly weapon. In a given case, that dangerous and deadly weapon may be a handgun; it may just as easily, however, be a rifle or a dagger or a set of brass knuckles.

Thus, although the “actual evidence” of a dangerous and deadly weapon in a given case may be proof of a handgun, a handgun conviction will not merge into an armed robbery conviction because it was not an indispensable or “required element.” It is not itself an element at all; it is but evidence of some other element. No variation is permitted with respect to the element itself; the requirement of the use of a dangerous and deadly weapon is a constant. Although there may be a shift from one evidentiary fact (handgun) to another evidentiary fact (dagger) to prove the element, there is no shift with respect to the legal element itself. A source of inevitable confusion is that with respect to some crimes, although by no means all crimes, there is a shift or a variation with respect to legal elements.

We tend uncritically to equate one shift with another. The necessary shifting or selection of elements within a multiform crime, however, is by no means the same as a shift or variation with respect to the evidence by which to prove an unshifting legal element. Although there are present the ⁶³ deceptive common denominators of movement and choice and variation, all shifts within the course of a criminal prosecution are not legally the same. Some crimes are what Judge Adkins referred to in Nightingale and Myers v. State, supra, as “multi-purpose” crimes.

What is involved is more than different ways of doing the same thing. That is a matter of fact. It is rather the case that even fundamentally different things may nonetheless constitute the same crime. That is a matter of law.

When a criminal offense comes in several different kinds, one does not even begin to catalogue the required elements until one has selected the kind of the offense applicable in a given case. “When a multi-purpose criminal statute is involved, we refine it by looking at the alternative elements relevant to the case at hand.” Id. Illustrative of a crime that comes in fundamentally different kinds is murder in the first degree. It may, along with several other possibilities, involve either a premeditated killing or the perpetration or attempted perpetration of certain statutorily designated felonies. In Newton v. State, 280 Md. 260 , 373 A.2d 262 (1977), Judge Eldridge made an extensive analysis of when a predicate felony is necessarily merged into first-degree murder and when it is not.

What that analysis revealed is that one cannot, for merger purposes, measure a robbery, for instance, against first-degree murder in the abstract. It would never merge, for first-degree murder might be of the premeditated killing variety. Nor may one measure a robbery even against a felony-murder in the abstract, for the felony-murder might have occurred in the course of a burglary or a rape or an arson. Nor may one even measure a consummated robbery against a felony-murder involving a robbery episode in the abstract, for the felony-murder may have been the result of an attempted robbery that failed.

It is most definitely the case, however, that a robbery does merge into a first-degree felony-murder based upon a consummated robbery. As Newton established, where a crime may be constructed out of alternative elements, one must make all necessary selec ⁶⁴ tions of appropriate elements before undertaking the “required elements” or “required evidence” comparison under Blockburger. Premeditated killing and robbery are different legal elements, not different evidence of the same element. In the case at bar, the complexity is twice compounded.

Both child abuse and a sexual offense in the third degree are generic or “umbrella” crimes that encompass several specific forms or kinds. Child abuse may consist of either: “(i) The sustaining of physical injury by a child as a result of cruel or inhumane treatment or as a result of a malicious act by any parent or other person who has permanent or temporary care or custody or responsibility for supervision of a child under circumstances that indicate that the child’s health or welfare is harmed or threatened thereby; or (ii) Sexual abuse of a child, whether physical injuries are sustained or not.” (Emphasis supplied). Art. 27, § 35A(a)(2). “Sexual abuse” is, in turn, defined as including, but not limited to: “1. Incest, rape, or sexual offense in any degree; 2.

Sodomy; and 3. Unnatural or perverted sexual practices.” 2 (Emphasis supplied). Art. 27, § 35A(a)(4)(ii). It is clear that a