Williams v. State

MOYLAN, Judge. The appellant, Thomas Lawrence Williams, Jr., was convicted in the Circuit Court for Charles County in a nonjury trial of both 1) assault with intent to maim, disfigure, or disable in contravention of Md.Ann.Code art. 27, § 386 and 2) reckless endangerment in contravention of § 120. He was sentenced to a term of ten years incarceration for the assault with intent to maim and to a concurrent sentence of five years for the reckless endangerment. On this appeal, the appellant raises the single contention that both the conviction for reckless ⁴⁷² endangerment and the conviction for assault with intent to maim cannot stand.

We agree with the appellant’s contention. What remains to be determined is the basis for that agreement, for the appellant offers us two alternative rationales, inviting us to choose one. The appellant was guilty of a single criminal act in the course of a single criminal episode. The details are inconsequential.

Suffice it to say that in the course of a drunken barroom fight between one Kevin Shoemaker and David Williams, the brother and codefendant of the appellant, the appellant briefly intervened in the fight which, until the moment of his intervention, had been at a nonlethal level. The appellant’s intervention consisted of walking up to Kevin Shoemaker and stabbing him twice with a knife, once beneath the chin and once in the upper left section of Shoemaker’s chest. It is not disputed that the evidence was legally sufficient to sustain the appellant’s conviction for assaulting Kevin Shoemaker with the intent to maim, disfigure, or disable. Section 386 provides, in pertinent part: If any person shall unlawfully ... and maliciously stab, cut or wound any person ... with intent to maim, disfigure or disable such person, ... every such offender ... shall be guilty of a felony and, upon conviction [is] subject to imprisonment for not more than 15 years.

Md.Ann.Code art. 27, § 386 (1992). From the two acts of stabbing, a fact finder would be permitted to draw the inference that the stabber intended permanently to maim, disfigure, or disable his victim. Hammond v. State, 322 Md. 451 , 588 A.2d 345 (1991). It is not disputed that the evidence was also legally sufficient to sustain the appellant’s conviction for recklessly creating a substantial risk of death or serious physical harm to Kevin Shoemaker.

Section 120(a) provides: Any person who recklessly engages in conduct that creates a substantial risk of death or serious physical injury to ⁴⁷³ another person is guilty of the misdemeanor of reckless endangerment and on conviction is subject to a fine not exceeding $5,000 or imprisonment not exceeding 5 years or both. Md.Ann.Code art. 27, § 120(a) (1992). Stabbing a victim in the neck or lower face and then again in the chest-shoulder area could reasonably be deemed to be an act creating a substantial risk of death or serious physical injury to the victim of the stabbing. The appellant, however, does not claim that he could not legitimately have been convicted of either offense.

He claims, rather, that for reasons quite apart from legal insufficiency, he could not legitimately have been convicted and punished for both offenses. Were the Convictions Inconsistent? The first rationale advanced by the appellant is that the two convictions are inconsistent. If that be so, at least one of the two, if not necessarily both, will have to be reversed.

State v. Hawkins, 326 Md. 270, 285-291 , 604 A.2d 489 (1992). Even in a jury trial, although an inconsistency between one verdict of guilty and another of not guilty will be tolerated, an inconsistency between two verdicts of guilty, such as the appellant alleges here, will not. Johnson v. State, 238 Md. 528, 540-546 , 209 A.2d 765 (1965). In a court trial, moreover, inconsistencies of neither variety will be countenanced.

Shell v. State, 307 Md. 46, 52-58 , 512 A.2d 358 (1986). We are here dealing, of course, both with a court trial and with two verdicts of guilty. The appellant reasons that the inconsistency inheres in the respective and incompatible mentes reae of the two offenses. The mens rea of assault with intent to maim involves the deliberate intention and willful desire and purpose of inflicting harm on the victim.

It is a specific intent crime. As such, it requires not simply the general intent to do the immediate act with no particular, clear or undifferentiated end in mind, ⁴⁷⁴ but the additional deliberate and conscious purpose or design of accomplishing a very specific and more remote result. Smith v. State, 41 Md.App. 277, 306 , 398 A.2d 426 , cert. denied, 284 Md. 748 (1979). See also Shell v. State, 307 Md. 46, 63 , 512 A.2d 358 (1986).

The mens rea of reckless endangerment, by contrast, far from intending, striving, desiring or purposing to bring about a harmful consequence, or any consequence for that matter, is blithely unconcerned with the possible consequences. The state of mind of recklessness, in the context of reckless endangerment as well as in other criminal contexts such as depraved heart murder and possibly grossly negligent manslaughter, is variously described as an attitude wherein the criminal agent, conscious of the life-endangering risk involved, nonetheless acts with a conscious disregard of or wanton indifference to the consequences. As will be more fully discussed hereinafter, there is a difference of opinion in the case law around the country as to whether the state of mind of recklessness in the context of reckless endangerment is to be judged by a subjective .or an objective standard. Under the former, the defendant must have an actual perception that his conduct will create a risk that is “substantially certain to cause a [harmful] result.” Minor v. State, 85 Md.App. 305, 316 , 583 A.2d 1102 (1991), aff'd, Minor v. State, 326 Md. 436 , 605 A.2d 138 (1992).

Under the latter, by contrast, it is enough that the defendant be “aware that his conduct might cause the result, though it is not substantially certain to happen.” Id. (emphasis in original). Maryland has opted for the objective standard. 1 Minor v. State, 85 Md.App. at 316 , 583 A.2d 1102 ; Minor v. State, ⁴⁷⁵ 326 Md. at 443, 605 A.2d 138 . Whatever the content of the perception of the risk, however, both the subjective and the objective standards of recklessness require that the defendant “consciously disregard” the risk.

It is the conscious disregard of the risk, whether it is perceived to be great or small, and the indifference to the human consequences that is the fulcrum of the appellant’s present contention. In one sense of the words, a “disregard” of and an “indifference” to the consequences might seem categorically to preclude or be precluded by a deliberate and purposeful effort to inflict a harmful consequence, just as surely as they might seem categorically to preclude or be precluded by a deliberate and purposeful effort to avoid a harmful consequence. 2 A willful and determined malefactor, such as one who assaults with the intent to maim, cannot, it would seem, be lightly dismissed as one who is merely disregardful of or indifferent to his own malevolent purpose. The malevolence is arguably more significant than that. One meticulously contriving to bring about a harmful end cannot, in one sense of the word, be characterized as merely reckless.

Precisely such a conclusion was reached in People v. Coleman, 131 Ill.App.3d 76 , 86 Ill.Dec. 351 , 475 N.E.2d 565 (1985), a case in which the Appellate Court of Illinois held that the inconsistent mentes reae precluded convictions for both attempted murder and reckless conduct. It is, to be sure, an intriguing problem. It is also a nettlesome one, but only at first glance. Many apparent legal problems turn out to be linguistic problems.

As we move up the continuum of escalating blameworthiness from negligence to gross negligence to recklessness to specific intent and beyond, at each level our descriptive concentration is on the last enhancing or incremental element that may bring us up to ⁴⁷⁶ that level. The definitional focus at each step is on the additional element that may raise the level of blameworthiness to that level, not on what will hold it down to that level. Because the progression is upward, we employ language, in our statute law and in our case law, so as to contrast the level of blameworthiness in issue with those levels below it, not with those above it. When, therefore, we describe the mens rea of reckless endangerment in terms such as “the wanton disregard of life-threatening consequences,” what the law means is that nothing less than that mens rea will suffice.

It does not mean that neither less than nor more than that mens rea will suffice. We are describing the minimum content for a finding of guilt in a particular degree, not the maximum content. It is always a defense to prove that one is less culpable than charged. It is not a defense to prove that one is more culpable than charged.

One does not defend against a charge of second-degree murder by proving that one was really guilty of first-degree murder. To prove culpability at a given level, the State is not required to disprove greater culpability, although a casual scanning of definitional sentences might sometimes lead us to believe so. Thus, there is nothing legally incompatible or legally inconsistent between the mens rea of a reckless disregard for life-threatening consequences and the mens rea of a specific intent to inflict harm. The latter is more blameworthy than the former, but it is not legally inconsistent with the former.

To be sure, a specific intent to effect a desired consequence, on the one hand, and a conscious disregard of or callous indifference to the consequence, on the other hand, are mental states that are distinct and apparently contradictory in both a linguistic and a psychological sense. They are not, however, incompatible or inconsistent in a legal sense. To be guilty of reckless endangerment, the defendant must be shown to have possessed nothing less than a reckless disregard of the consequences of his life-threatening act. He may, however, be shown to have possessed a more blamewor ⁴⁷⁷ thy mens rea, such as an intent to maim, but that excess culpability will be simply surplusage as far as the reckless endangerment charge is concerned.

It certainly does not operate to exculpate him of the reckless endangerment. This type of linguistic problem is a recurring phenomenon in the criminal law. Although slack linguistic usage frequently describes a lesser degree of guilt in terms of the absence of a greater degree of guilt, the absence of the greater guilt is never an affirmative element that must be proved. An attempt to commit a crime, for instance, is frequently, albeit carelessly, defined in terms of the failure to commit a crime.

It does not, however, require proof of non-consummation; it is simply an available alternative whenever there is non-proof of consummation. Lightfoot v. State, 25 Md.App. 148 , 334 A.2d 152 (1975), aff'd, 278 Md. 231 , 360 A.2d 426 (1976). Second-degree murder is frequently described as unpremeditated murder. It does not, however, require proof of nonpremeditation; it is simply an available alternative when there is non-proof of premeditation.

Daytime housebreaking, despite its express terms, does not require proof of daytime; it is simply an available alternative when there is non-proof of nighttime. Were it not so, the “twilight burglar,” where it could not be proved that the breaking took place either in the nighttime or in the daytime, might find undeserved safe haven in the eye of the hurricane. Henry v. State, 20 Md.App. 296, 302-303 , 315 A.2d 797 , rev’d on other grounds, 273 Md. 131 , 328 A.2d 293 (1974). The apparent problem disappears when we appreciate the legal notion that proof of a lesser mens rea may sometimes take two very different forms.

One possibility is, indeed, proof of the affirmative elements plus demonstrated proof that a greater mens rea did not exist. The other possibility is simply proof of the affirmative elements plus, quite coincidentally, a failure of proof as to the greater mens rea. If proof of a lesser mens rea necessarily required disproof of a greater mens rea, then there might sometimes be an inconsistency between verdicts of guilty requiring proof of the lesser mens rea and the greater mens rea, respectively. It is, however, ⁴⁷⁸ the other possibility for proving the lesser mens rea that takes the case of multiple convictions out of what might sometimes be the inconsistent-verdicts category and places it, instead, in the merger category.

The greater proof does not negate or contradict the lesser proof but only subsumes it. How, one might ask, could a single manslaughter, for instance, be both involuntary and voluntary? Linguistically, it would seem that the two are mutually exclusive. If, indeed, a conviction for involuntary manslaughter required demonstrated proof that the killing was not voluntary, then findings that it was both involuntary and voluntary would, indeed, be inconsistent.

Because, however, a finding of involuntary manslaughter may imply nothing more than the non-proof of voluntariness, simultaneous findings of both involuntariness and voluntariness would require no more than the merger of the lesser mens rea into the greater. Cf. State v. Parker, 128 Ariz. 107 , 624 P.2d 304 (1980). By parity of reasoning, the proof of disregard or indifference necessary for reckless endangerment does not require disproof that a particular consequence was specifically intended or affirmatively desired.

A finding of disregard or indifference may imply nothing more than the failure of proof of specific intent. Concern for a specifically intended consequence does not belie an unconcern for such a consequence but, all other conditions for merger being satisfied, simply subsumes it. Whenever there is doubt as to the appropriate level of guilt, the defendant, of course, receives the benefit of the doubt and is convicted only at the lower level. A defendant is never, however, entitled to total exculpation simply because there is ambiguity as to his level of guilt.

Different levels of culpability are not neatly abutting and mutually exclusive so as to render one necessarily inconsistent with the other. An argument very similar to the appellant’s present contention—that an intent or purpose specifically entertained gainsays an attitude of mere indifference—was made in Robinson v. State, 307 Md. 738 , 517 A.2d 94 (1986) in the context of ⁴⁷⁹ depraved-heart murder. In rejecting it, Judge Adkins reasoned, 307 Md. at 745, 517 A.2d 94 : “It involves rather the deliberate perpetration of a knowingly dangerous act with reckless and wanton unconcern and indifference as to whether anyone is harmed or not. The common law treats such a state of mind as just as blameworthy, just as anti-social and, therefore, just as truly murderous as the specific intents to kill and to harm.” Robinson seizes upon the last sentence we have just quoted and argues that “depraved heart” murder does not exist if there is a specific intent to harm.

See also Lindsay v. State, 8 Md.App. 100, 104 , 258 A.2d 760, 763 (1969) (“depraved heart” murder exists where, “conceding that there was no actual intent to injure, an act was done or duty omitted wilfully, the natural tendency of which was to cause death or great bodily harm”); R. Perkins, Criminal Law at 36 (2d ed. 1969) (“... even if there is no actual intent to kill or injure”). But these authorities say no more than that the crime may be committed absent intent to injure. They do not hold that the crime is not committed if there is an intent to injure. The terms “recklessness” or “indifference,” often used to define the crime, do not preclude an act of intentional injury, (emphasis supplied).

We hold that the convictions for assault with intent to maim and for reckless endangerment were not mutually inconsistent. Our rejection of the appellant’s first rationale, however, serves only to enhance the force of his second rationale. Should the Convictions Have Merged? Reckless endangerment is a new entry in the lexicon of criminal law.

Judge Bishop traced its history in Minor v. State, 85 Md.App. 305, 313-319 , 583 A.2d 1102 (1991), aff'd, 326 Md. 436 , 605 A.2d 138 (1992). It was enacted by 1989 ⁴⁸⁰ Md.Laws, Chap. 469, taking effect on July 1, 1989. It is codified as Md.Ann. Code art. 27, § 120. The case law concerning reckless endangerment is still skimpy.

Our Minor v. State was the first reported decision to deal with it. Our concern in Minor was with the objective versus the subjective test for at least one aspect of the mens rea of recklessness. In Minor v. State, 326 Md. 436 , 605 A.2d 138 (1992), in which the Court of Appeals affirmed the decision of this Court, Chief Judge Murphy engaged in a thoroughgoing analysis of the objective versus the subjective standard, opting, as we had done, for the objective standard on possibly two sub-issues. In Albrecht v. State, 97 Md.App. 630, 645-650, 632 A.2d 163 (1993), we summarized what the two Minor decisions had to say about one aspect of the mens rea of recklessness.

Reckless endangerment is quintessentially an inchoate crime. It is designed to punish potentially harmful conduct even under those fortuitous circumstances where no harm results. Judge Bishop explained, 85 Md.App. at 314-315 , 583 A.2d 1102 : This statute was enacted in 1989 to prohibit “conduct which, while not criminal under current law, creates a substantial risk that a criminal act will result.” Bill Analysis, H.B. 1448, Senate Judicial Proceedings Committee, 1989 (“Bill Analysis”); Floor Report, H.B. 1448, Senate Judicial Proceedings Committee 1989 (“Floor Report”). As the Committee observed, the purpose of the statute, like the statute prohibiting reckless driving, Md.Transp.Code Ann. § 21-901.1, is to deter crime before injury or death occurs.

Id. (footnote omitted) (emphasis supplied). The words of Chief Judge Murphy were of similar import in Minor v. State, 326 Md. at 442, 605 A.2d 138 : It is readily evident from the plain language of § 120(a) that it was enacted to punish, as criminal, reckless conduct which created a substantial risk of death or serious physical injury to another person. It is the reckless conduct and not ⁴⁸¹ the harm caused, by the conduct, if any, which the statute was intended to criminalize, (emphasis supplied).

As with all inchoate crimes, reckless endangerment was intended to plug a gap in the law. Inchoate crimes are designed to inhibit criminal conduct before it goes too far or to punish criminal conduct even when, luckily, it misfires. Reckless endangerment is, indeed, doubly inchoate. At the actus reus level, it is one element short of consummated harm.

At the mens rea level, it is one element short of consummated harm. At the mens rea level, it is one element short of the specific intent necessary for either an attempt or for one of the aggravated assaults. When the crime of reckless endangerment was placed on the statute books of Maryland in 1989, it filled a gap in a theretofore neglected quadrant of a conceptually simple matrix: Non-Intentional Intentional HARM UNINTENDED HARM INTENDED N on-Consummated AND UNCONSUMMATED (but risked) BUT UNCONSUMMATED Consummated HARM UNINTENDED BUT CONSUMMATED HARM INTENDED AND CONSUMMATED When we fill the quadrants with representative, but not necessarily exhaustive, sets of crimes, we have a matrix that looks like this: Non-Intentional Intentional Non-Consummated RECKLESS ENDANGERMENT SOME ATTEMPTS, SOME AGGRAVATED ASSAULTS Consummated DEPRAVED HEART MURDER, INVOLUNTARY MANSLAUGHTER, SOME UNINTENDED BATTERIES INTENTIONAL MURDER, VOLUNTARY MANSLAUGHTER, MAYHEM, ETC. ⁴⁸² 1. Merger: An Escalating Actus Reus As a doubly inchoate crime, reckless endangerment may move one step closer to the actuality of consummated and intended harm in either of two directions.

In terms of the actus reus, reckless endangerment does not require, of course, that any harm actually be inflicted on a victim. It is enough that a substantial risk or threat of such harm be created and then consciously disregarded. If one additional element were added to the actus reus, however, and actual harm to the endangered victim should come to pass, there are several possibilities for the greater inclusive crime into which the reckless endangerment might then merge. a. Where the Harm Is Fatal If the victim should die as a result of the harm inflicted, that homicide, albeit unintended, might well qualify either as second-degree murder of the depraved-heart variety or as involuntary manslaughter of the gross criminal negligence variety.

The borderline between those two is, in the present state of our case law, a very blurred line. Of this uncertain boundary, 2 Wayne R. LaFave and Austin W. Scott, Substantive Criminal Law § 7.4 (2d ed. 1986), has observed at 200-201: The distinctions between an unreasonable risk and a high degree of risk and a very high degree of risk are, of course, matters of degree, and there is no exact boundary line between each category; they shade gradually like a spectrum from one group to another. Some have thus questioned whether this is a sound basis upon which to make the important distinction between murder and manslaughter, (footnotes omitted). In Maryland, we have defined involuntary manslaughter of the gross-criminal-negligence variety in such a way as to embrace the mens rea of reckless endangerment.

Chief Judge Murphy (now Chief Judge of the Court of Appeals), in Mills v. State, 13 Md.App. 196, 200 , 282 A.2d 147 (1971), cert. ⁴⁸³ denied, 264 Md. 750 (1972), provided the best analysis we have yet had of that necessary state of mind: It is well settled in this State that where a charge of involuntary manslaughter is predicated on negligently doing some act lawful in itself, the negligence necessary to support a conviction must be gross or criminal, viz., such as manifests a wanton or reckless disregard of human life. (emphasis supplied). See also Allison v. State, 203 Md. 1, 5 , 98 A.2d 273 (1953) (“Even an unintentional killing may constitute the crime of manslaughter if it is due to a wanton and reckless disregard of human life”); Hughes v. State, 198 Md. 424 , 84 A.2d 419 (1951); Neusbaum v. State, 156 Md. 149, 155 , 143 A. 872 (1928). In Johnson v. State, 213 Md. 527, 531 , 132 A.2d 853 (1957), Chief Judge Bruñe focused on the subject of gross criminal negligence.

He reviewed the earlier Maryland decisions of Hughes v. State, 198 Md. 424 , 84 A.2d 419 (1951); Duren v. State, 203 Md. 584 , 102 A.2d 277 (1954); Thomas v. State, 206 Md. 49 , 109 A.2d 909 (1954); Clay v. State, 211 Md. 577, 128 A.2d 634 (1957); and Lilly v. State, 212 Md. 436, 129 A.2d 839 (1957), and concluded: These cases have uniformly recognized that in order to constitute gross negligence, the conduct of the defendant must be such as to amount to a wanton or reckless disregard for human life or for the rights of others, (emphasis supplied). 213 Md. at 531 , 132 A.2d 853 . See also Chase v. Jenifer, 219 Md. 564, 569 , 150 A.2d 251 (1959); Craig v. State, 220 Md. 590, 597 , 155 A.2d 684 (1959); Palmer v. State, 223 Md. 341, 352 , 164 A.2d 467 (1960); McFadden v. State, 1 Md.App. 511, 517, 231 A.2d 910 , cert. denied, 247 Md. 741 (1967); Morris v. State, 4 Md.App. 328, 332-333 , 242 A.2d 582 (1968). In State v. Gibson, 4 Md.App. 236, 242-243 , 242 A.2d 575 (1968), aff'd, 254 Md. 399 , 254 A.2d 691 (1969), Chief Judge Murphy had on an earlier occasion looked at the quality of gross criminal negligence: ⁴⁸⁴ It is equally well settled that the Legislature, in enacting Section 388, making it a misdemeanor to cause the death of another as a result of operating an automobile “in a grossly negligent manner,” intended to adopt this same standard of gross negligence (a wanton or reckless disregard of human life) as the minimum requirement to support a conviction for this statutory offense. See also Rolfes v. State, 10 Md.App. 204, 207 , 268 A.2d 795 (1970).

There is little distinction between that mens rea and the mens rea of depraved-heart murder. Other than substituting “extreme disregard” for “wanton or reckless disregard,” the Maryland Pattern Jury Instructions—Criminal 4:17.8 defines the mens rea of depraved-heart murder in virtually the same language the case law uses to describe the mens rea of grossly negligent manslaughter: Second degree murder is the killing of another person while acting with an extreme disregard for human life. In order to convict the defendant of second degree murder, the State must prove: (1) that the conduct of the defendant caused the death of [victim]; (2) that the defendant’s conduct created a very high degree of risk to the life of [victim]; and (3) that the defendant, conscious of such risk, acted with extreme disregard of the life-endangering consequences. (emphasis supplied).

The leading case in Maryland on the subject of depraved-heart murder is Robinson v. State, 307 Md. 738 , 517 A.2d 94 (1986). In terms of its mens rea, Judge Adkins observed, 307 Md. at 744-745, 517 A.2d 94 : It is one of the “unintentional murders,” Glenn v. State, 68 Md.App. 379, 386 , 511 A.2d 1110, 1114 (1986), that is punishable as murder because another element of blameworthiness fills the place of intent to kill. As [was] explained in Debettencourt v. State, 48 Md.App. 522, 530 , 428 A.2d 479, 484 (1981): ⁴⁸⁵ “It [‘depraved heart’ murder] is the form [of murder] that establishes that the wilful doing of a dangerous and reckless act with wanton indifference to the consequences and perils involved, is just as blameworthy, and just as worthy of punishment, when the harmful result ensues, as is the express intent to kill itself. This highly blameworthy state of mind is not one of mere negligence....

It is not merely one even of gross criminal negligence---- It involves rather the deliberate perpetration of a knowingly dangerous act with reckless and wanton unconcern and indifference as to whether anyone is harmed or not. The common law treats such a state of mind as just as blameworthy, just as anti-social and, therefore, just as truly murderous as the specific intents to kill and to harm.” The critical feature of “depraved heart” murder is that the act in question be committed “under circumstances manifesting extreme indifference to the value of human life.” 2 Wharton’s Criminal Law § 143 at 197 (14th ed. 1979). The terms “recklessness” or “indifference,” often used to define the crime, do not preclude an act of intentional injury, (footnote omitted) (emphasis supplied). A reckless endangerment resulting in death will constitute either a grossly negligent involuntary manslaughter or a depraved-heart second-degree murder.

In either event, the reckless endangerment will merge into the greater inclusive criminal homicide. Blockburger v. United States, 284 U.S. 299 , 52 S.Ct. 180 , 76 L.Ed. 306 (1932). b. Where the Harm is Not Fatal When, by way of additional actus reus, the unconsummated harm that is recklessly risked ripens into consummated harm that is actually inflicted but with nonfatal consequences, there is a crime to handle the situation. It is battery, but of the unintended variety.

The recognition of unintended battery as a form of battery is a relatively recent development. It ⁴⁸⁶ emerged, essentially from the shadows of grossly negligent involuntary manslaughter (and to some extent from the shadows of depraved-heart murder) as a nonlethal analogue for situations where the victim was wounded but did not die. See Comment, Criminal Assault Through Negligence—Bonding Automobile Drivers, 22 Mich.L.Rev. 717 (1924); Rollin M. Perkins, Non-Homicide Offenses Against the Person, 26 B.U.L.Rev. 119 (1946). Livingston Hall, Assault and Battery By The Reckless Motorist, 31 J.Crim.L. & Criminology 133, 134 (1940), traced the early development of this form of unintended battery: The law of battery developed during the latter half of the 19th century along common law principles, from intent to recklessness, in the same manner as the law of manslaughter (and in cases of extreme recklessness, of murder) had unfolded two centuries earlier.

The coming of the automobile, and the desire of prosecutors for heavier penalties than many reckless driving statutes permit, have done no more than provide numerous modern instances of this development. (emphasis supplied). The first Maryland decision to recognize unintended battery was Duckworth v. State, 323 Md. 532, 540-544 , 594 A.2d 109 (1991). The thoroughly researched and well-reasoned opinion of Judge Rodowsky analyzed why the evidence was legally sufficient to sustain a conviction for battery in a case where the defendant was handling a firearm in a criminally negligent manner and unintentionally wounded a child thereby.

Judge Rodowsky reasoned: [T]he act of pointing a firearm at a nearby human being, without being certain that the weapon will not discharge, generally is sufficiently reckless to support a conviction for involuntary manslaughter where the unintended discharge of the weapon results in death. Similarly, here, where the discharge of the weapon resulted in a wounding short of death, the same degree of recklessness supports the battery conviction, (emphasis supplied). ⁴⁸⁷ Id. at 542 , 594 A.2d 109 . Duckworth, 323 Md. at 541 , 594 A.2d 109 , quoted with approval Commonwealth v. Hawkins, 157 Mass. 551 , 32 N.E. 862, 863 (1893): It is a general rule in criminal proceedings at common law that the defendant cannot be convicted unless a criminal intent is shown, but it is not necessary that he should have intended the particular wrong which resulted from his act ... So, in cases of homicide, the rule is well established, that one who wantonly, or in a reckless or grossly negligent manner, does that which results in the death of a human being, is guilty of manslaughter, although he did not contemplate such a result.

His gross negligence in exposing another to a personal injury by intentionally doing the act makes his intention criminal, and supplies all the intent which the law requires to make him responsible for the consequences. This principle is equally applicable to other cases where a personal injury results from a wanton or reckless act which is likely to do bodily harm, or from any gross negligence which causes the danger. In the case at bar, if Mary A. Powers had died from the pistol shot, the defendant, on the facts found by the jury, would have been guilty of manslaughter. As she survived the injury, the same principle now requires a conviction of assault and battery, (emphasis supplied).

Cf. Mills v. State, 13 Md.App. 196, 199-201 , 282 A.2d 147 (1971); Annotation, Homicide by Wanton Or Reckless Use of Firearm Without Express Intent to Inflict Injury, 5 A.L.R. 603, 610-619 (1920), 23 A.L.R. 1554 , 1556-1557 (1923). Indeed, the holding in the Duckworth case was that recklessness or gross negligence was in that case a sufficient predicate for a conviction for an unintended battery: Thus, the State’s theory of the case on the battery charge was legally sound, namely, that Duckworth criminally wounded Mandy by recklessly handling a firearm, (emphasis supplied). 323 Md. at 544 , 594 A.2d 109 . Lamb v. State, 93 Md.App. 422, 455 , 613 A.2d 402 (1992), cert. denied, 329 Md. 110 , 617 A.2d 1055 (1993), also pursued ⁴⁸⁸ the theme that unintended battery was the nonlethal analogue of depraved-heart murder or grossly negligent involuntary manslaughter: The unintended harm, if death results, may be unintended murder if the indifference to the consequences is sufficiently wanton and reckless to constitute depraved-heart murder.

If the state of mind is less than depraved but still a case of gross criminal negligence, it is involuntary manslaughter. At the nonfatal level, it is unintended battery. Maryland Criminal Pattern Jury Instruction 4:04 recognizes that battery may be intentional or unintentional but recognizes the latter as criminal only when the defendant’s conduct can be characterized as “reckless.” MPJI-Cr 4:04(2) provides: that the contact was the result of an intentional or reckless act of the defendant and was not accidental ... To determine whether reckless endangerment and unintended battery are “the same offense” within the contemplation of Blockburger v. United States, 284 U.S. 299 , 52 S.Ct. 180 , 76 L.Ed. 306 (1932), it is necessary to compare the respective sets of required elements.

Unintended battery (as all battery) requires that the harm or offensive touching be not simply in potentia but in esse. That is not an element of reckless endangerment. The issue is whether the crime of reckless endangerment contains any additional or unique element not required to prove an unintended battery. The Blockburger comparison is problematic because the crime of unintended battery has not yet emerged from the future mists with sufficient clarity to permit fine calibration.

At the mens rea level, however, it does seem that the quality of recklessness required for reckless endangerment is indistinguishable from the quality of recklessness required for unintended battery. What is less sure is whether the creation of “a substantial risk of death or serious bodily harm” that is part of the actus reus of reckless endangerment goes beyond the degree of risk or threat of harm implicitly contemplated by the recklessness ⁴⁸⁹ necessary to convict one of unintended battery. If unintended battery is, indeed, nothing more than the nonfatal analogue of unintended criminal homicide, there may be no distinction. It is by no means clear, however, that unintended battery is not broader in its sweep.

MPJI-Cr 4:04, for instance, does not seem to draw a distinction between the degree of harm that may be the result of an unintended battery and the broad sweep of offensive touching and nonserious harm that is the actus reus of intentional battery: The defendant is charged with the crime of battery. In order to convict the defendant of battery, the State must prove: (1) that the defendant caused [offensive physical contact with] [physical harm to] [victim] . .. It may well be that the potential harm contemplated by the reckless endangerment statute is of a far more serious degree and, therefore, more limited than the more generalized harm punished by the common law crime of unintended battery. Thus, although a reckless endangerment that results in the infliction of actual nonfatal harm may represent an instance of unintended battery, reckless endangerment, as a necessary antecedent or inchoate condition, may by no means preempt the field of unintended battery.

If that be the case, it is because reckless endangerment contains a unique required element not shared by unintended battery. Some, but not necessarily all, unintended batteries are consequences of reckless endangerments. If that be so, the two crimes are not “the same offense” within the contemplation of double jeopardy law and merger would not be constitutionally mandated. It is also clear, however, that even if the crime of reckless endangerment and the crime of unintended battery are not “the same offense,” multiple punishment will nonetheless be prohibited and merger will still be required in those particular instances where the inchoate crime of reckless endangerment has ripened into an instance of the consummated crime of unintended battery.

Monoker v. State, 321 Md. 214, 223-224 , 582 A.2d 525 (1990). Although the Monoker principle is by no ⁴⁹⁰ means free of doctrinal ambiguity, it does hold that as a “principle of fundamental fairness” under the common law of Maryland, it is “fundamentally unfair to [a defendant] for [the law] to require him to suffer twice, once for the greater crime and once for the lesser included offense of that crime. For that reason, his sentences should merge.” Id. at 223-224 , 582 A.2d 525 . Even though the Court uses the language of double jeopardy to describe a situation which it candidly acknowledges does not involve double jeopardy, the outcome at least is clear.

For whatever reason, there will be a merger. The crime involving potential harm will merge into the crime involving actual harm on an ad hoc basis, even if not as a universal principle of double jeopardy law. The Monoker rule handles the problem of merging into a consummated crime an antecedent crime that is inchoate in fact even if not inchoate in law. 2. Merger: An Escalating Mens Rea As a doubly inchoate crime, reckless endangerment may move one step closer to the actuality of consummated and intended harm in a very different direction—along the line of an escalating mens rea instead of along the line of an escalating actus reus.

The actus reus of reckless endangerment is the creation of a substantial risk of death or serious bodily harm to another. The mens rea of recklessness involves the conscious disregard or wanton indifference to the creation of such a risk. To move from reckless endangerment, where one is simply indifferent to the threat to the victim, to one of the more malicious crimes where death or serious bodily harm is affirmatively desired or specifically intended—such as attempted murder, attempted manslaughter, attempted mayhem, assault with intent to murder, assault with intent to maim, etc.—primarily involves racheting the mens rea up to the next level of blameworthiness. a. A Possible Increment to the Actus Reus It may, coincidentally, also involve a minuscule racheting up of the actus reus.

That would take care of some unusual, but ⁴⁹¹ hypothetically still possible, situation where the creation of the substantial risk of death or serious bodily harm nonetheless still falls half a step short of conduct that would constitute an attempt or an assault. See, e.g., Commonwealth v. Penn Valley Resorts, Inc., 343 Pa.Super. 387 , 494 A.2d 1139 (1985). And see, Minor v. State, 326 Md. 436 , 605 A.2d 138 (1992), where, even if a specific intent to kill had been present, the physical actions themselves arguably might not have supported a finding of an assault even if they might have supported a finding of an attempt. Even if the actus reus of the attempt or of the assault involves slightly more than the actus reus of reckless endangerment, however, the arguably greater actus reus would subsume the arguably lesser actus reus and would pose no impediment to the merger of reckless endangerment into one of the attempts or assaults involving a specific intent to inflict death or serious bodily harm. b.

What Precisely is the Mens Rea? Before addressing the ultimate issue of whether the mens rea of reckless endangerment is a lesser included mental state that may merge into the more blameworthy mens rea of assault with intent to maim, etc. (or assault with intent to murder or attempted murder or attempted manslaughter or attempted mayhem, etc.), it behooves us to examine a bit more closely than has heretofore been done the precise mens rea of reckless endangerment. As we have said, the only case law we have is 1) our decision in Minor v. State, 85 Md.App. 305 , 583 A.2d 1102 (1991), 2) the affirming decision of the Court of Appeals in Minor v. State, 326 Md. 436 , 605 A.2d 138 (1992), and 3) our cursory resume of those two decisions in Albrecht v. State, 97 Md.App. 630 , 632 A.2d 163 (1993). Albrecht added nothing new to the analysis.

The only issue raised by the appellant Minor before both appellate courts was whether the risk of physical injury to another which he was required consciously to disregard must have been known by him to have been an almost certain risk of injury or could have been a mere risk of possible injury. ⁴⁹² The Court of Appeals