Young v. State

JAMES R. EYLER, Judge. Appellant, Jessie Lee Young, was convicted by a jury sitting in the Circuit Court for Anne Arundel County of transporting a person for purposes of prostitution. The circuit court sentenced appellant to ten years incarceration and suspended all but eight years. As one of the conditions of probation, the circuit court ordered appellant to register as a sexual offender. ³⁸³ Questions Presented 1.

Is the requirement that appellant register as a sexual offender an illegal condition of probation? 2. Did the court err in admitting irrelevant and prejudicial evidence? 3. Did the court err in admitting evidence of racial prejudice? Finding no error, we affirm the judgment of the circuit court.

Facts The following is a summary of Jessica McGregor’s testimony, the State’s principal witness. Jessica testified that, when she met appellant in the summer of 1999, he told her that he ran an escort service, asked if she was interested in participating, and she replied in the affirmative. Appellant asked how old she was, and she stated that she was 18. Appellant replied that he knew she was lying, and she then said that she was 17.

Appellant told her to say that she was 21 years old. The next evening, appellant and Jessica discussed prostitution. Appellant took her to a “track,” which is “a strip area where prostitutes ply their trade.” Appellant gave her advice with respect to prostitution, including pricing information, avoiding pimps, avoiding cars with dark tinted windows, and avoiding “black men” because they were “meaner.” Appellant instructed Jessica to bring him money, and he agreed to watch her every night. At one point, appellant and Jessica went to New York City, where appellant purchased false identification for Jessica, showing that she was older than she actually was, and identifying her as “Rachel Marie Mitchell.” After meeting appellant, Jessica, who had lived with her mother, did not return.

Instead, she lived with appellant in hotels and motels. Jessica told appellant that she loved him. From September 2 through 7, 1999, appellant and Jessica were in the Washington, D.C. area. Jessica’s sister, Felicia Green, age 13, stayed with them in a motel in Maryland.

Felicia stayed in the motel room at night while Jessica and appellant were working the streets in Washington. Early on the second morning, Jessica was arrested by an undercover ³⁸⁴ police officer. At the police station, Jessica told an officer that her sister was in a motel room and asked them to get her. They did so.

Jessica told the police about appellant, initially stating that he was a friend of the family who was taking Jessica and her sister to their mother, but later admitting that she had lied. Jessica further testified that she was born on March 4,1983, and that she was age 16 during the relevant time period. Discussion 1. Appellant contends that requiring him to register as a sexual offender was an illegal condition of probation.

Relying on Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), appellant argues that the requirement of registration violates his constitutional rights of due process and trial by jury. The requirement that appellant register as a sexual offender was imposed pursuant to Maryland Code (1996, 2000 Supp.) Article 27, section 792. The relevant subsection is 792(a)(6)(vii), which defines an “offender” as one convicted of violating certain provisions of the criminal code, including section 432, “if the intended prostitute is under the age of 18 years.” 1 Appellant was convicted of violating Maryland Code (1996, 2000 Supp.) Article 27, section 432. Pursuant to that section, the court instructed the jury as follows: Now, the crime in this case, the defendant is charged with transporting a person for prostitution.

In order to convict the defendant of this charge, you must find that the defendant knowingly transported, or caused to be transported, or aided and assisted in obtaining transportation for, by any means of conveyance, through or across the State, any person for purpose of prostitution, or with the intent and ³⁸⁵ purpose to induce, entice, or compel the person to become a prostitute. Appellant observes, based on that statement of the law, that the jury did not need to and did not decide the fact question of Jessica’s age. Appellant concludes that, under Apprendi , he was entitled to have a jury resolve that issue, and because it did not, he cannot be required to register under the sexual offender statute. In Apprendi , the defendant pleaded guilty to two counts of possession of a firearm for an unlawful purpose, a second-degree offense, and possession of an anti-personnel bomb, a third-degree offense.

Apprendi, 530 U.S. 466 , 120 S.Ct. at 2352 . Under New Jersey law a second-degree offense is punishable by imprisonment for five to ten years, while a third-degree offense carries a term of three to five years. Id. For the second-degree offense, Apprendi was sentenced under an enhanced penalty statute that authorized imprisonment for ten to twenty years if the defendant acted with an intent to intimidate because of race, color, gender, handicap, religion, ethnicity, or sexual orientation.

Id.; see NJ Stat. Ann. § 2C:44-3(e) (West 1995). At the sentencing hearing, the judge decided by a preponderance of the evidence that the defendant’s conduct had been racially motivated, decided that the enhancement statute applied, and imposed an enhanced penalty of twelve years for one of the second-degree counts. Apprendi, 530 U.S. 466 , 120 S.Ct. at 2352 . Apprendi appealed, arguing that his due process rights were violated because the basis for the enhanced penalty, intent, was not proved beyond a reasonable doubt.

Apprendi 530 U.S. 466 , 120 S.Ct. at 2352 . To support his argument, Apprendi relied on In re Winship, 397 U.S. 358 , 90 S.Ct. 1068 , 25 L.Ed.2d 368 (1970), requiring that a state prove, before a jury if elected, the elements of a criminal offense. The Supreme Court of New Jersey, relying primarily on McMillan v. Pennsylvania, 477 U.S. 79 , 106 S.Ct. 2411 , 91 L.Ed.2d 67 (1986), concluded that the question of Apprendi’s intent was a ³⁸⁶ sentencing factor not requiring jury determination. State v. Apprendi 159 N.J. 7 , 731 A.2d 485, 494-95 (1999).

The Supreme Court of the United States reversed and held that the Sixth Amendment right to a jury trial, read in conjunction with the due process requirement in the Fourteenth Amendment, requires that “any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.” Apprendi 530 U.S. 466 , 120 S.Ct. at 2355 (quoting Jones v. United States, 526 U.S. 227, 243, n. 6 , 119 S.Ct. 1215 , 143 L.Ed.2d 311 (1999)). It appears that the word “penalty,” as used by the Supreme Court in Apprendi is synonymous with the word “punishment.” For example, the Court stated: If a defendant faces punishment beyond that provided by statute when an offense is committed under certain circumstances but not others, it is obvious that both the loss of liberty and the stigma attaching to the offense are heightened; it necessarily follows that the defendant should not— at the moment the State is put to proof of those circumstances — be deprived of protections that have, until that point, unquestionably attached. Apprendi 530 U.S. 466 , 120 S.Ct. at 2359 (emphasis added). The Court continued by stating that a “State scheme that keeps from the jury facts that ‘[e]xpose [defendants] to greater or additional punishment’ may raise serious constitutional concern.” 530 U.S. 466 , 120 S.Ct. at 2360 (quoting McMillan v. Pennsylvania, 477 U.S. 79, 88 , 106 S.Ct. 2411 , 91 L.Ed.2d 67 (1986)).

Later in the opinion, the Court again stated: The New Jersey statutory scheme ... allows a jury to convict a defendant of a second-degree offense based on its finding beyond a reasonable doubt that he unlawfully possessed a prohibited weapon; after a subsequent and separate proceeding, it then allows a judge to impose punishment identical to that New Jersey provides for crimes of the first degree____ ³⁸⁷ Id. at 2363 (emphasis added); see also Apprendi, 530 U.S. 466 , 120 S.Ct. at 2365 (“the relevant inquiry is one not of form, but of effect — does the required finding expose the defendant to a greater punishment than that authorized by the jury’s guilty verdict?” (footnote omitted) (emphasis added)). Consequently, we understand the terms “penalty” and “punishment” to be essentially the same for purposes of the issue before us. If registration under Maryland’s sexual offender statute is not a penalty or punishment, it can constitutionally be considered as a “sentencing factor” and be determined by a judge. Apprendi 530 U.S. 466 , 120 S.Ct. at 2360 ; McMillan, 477 U.S. at 91 , 106 S.Ct. 2411 (sentencing factors are facts that could influence a sentence but do not have to be found by a jury); see also State v. Simpson, 318 Md. 194, 198 , 567 A.2d 132 (1989) (elements which increase penalty are to be determined by fact-finder not sentencing judge).

The Supreme Court, in Apprendi, expressly limited McMillan’s holding to “cases that do not involve the imposition of a sentence more severe than the statutory maximum for the offense established by the jury’s verdict....” 530 U.S. 466 , 120 S.Ct. at 2361, n. 13 . In Apprendi the sanction for a finding of intent to intimidate was clearly punishment, ie., a greater term of imprisonment. Apprendi 530 U.S. 466 , 120 S.Ct. at 2352 . The threshold question, in the case before us, is whether, for purposes of the Fourteenth Amendment right to due process and the Sixth Amendment right to a jury trial, taken together, the Maryland sexual offender statute is punitive in that it imposes a penalty or punishment, or whether it is regulatory.

If it is not punitive, Apprendi does not control our decision. 2 There are two lines of cases relevant to our inquiry. First, there are many decisions dealing with the subject of punishment in the context of various constitutional provisions. What is punishment and when is it increased? Second, there are ³⁸⁸ several decisions addressing various constitutional challenges to state sexual offender statutes.

These statutes have generally been upheld on the ground that they are regulatory in nature and not punitive. New Jersey’s sexual offender statute, frequently referred to as “Megan’s Law,” has received significant attention. In Artway v. Attorney General, 81 F.3d 1235 (3d Cir.1996), and E.B. v. Verniero, 119 F.3d 1077 (3d Cir.1997), cert. denied, 522 U.S. 1110 , 118 S.Ct. 1039 , 140 L.Ed.2d 105 (1998), the United States Court of Appeals for the Third Circuit addressed the constitutionality of that statute. The New Jersey statute provided for registration by offenders and varying types of notification for different types of offenders, determined by the relative risks believed to exist with respect to each offender classification.

Artway addressed the registration provisions and first level notification requirements. Artway, 81 F.3d at 1252-53 . E.B. addressed the second and third-level notification requirements. E.B., 119 F.3d at 1081 .

The Artway Court, in addressing ex post facto, bill of attainder, and double jeopardy challenges, examined several Supreme Court decisions in order to determine if the statute constituted punishment. Artway, 81 F.3d at 1254 . Among the cases analyzed were De Veau v. Braisted, 363 U.S. 144 , 80 S.Ct. 1146 , 4 L.Ed.2d 1109 (1960) (suggested that actual legislative purpose is relevant in an inquiry involving an ex post facto and bill of attainder challenge); United States v. Halper, 490 U.S. 435 , 109 S.Ct. 1892 , 104 L.Ed.2d 487 (1989) (used an objective legislative intent test, examined proportionality of fine imposed compared to the purpose of the legislation, in a double jeopardy challenge to a forfeiture); Austin v. United States, 509 U.S. 602 , 113 S.Ct. 2801 , 125 L.Ed.2d 488 (1993) (applied the Halper test by examining the history of civil penalties/forfeitures in comparison to their purpose in an Eighth Amendment excessive fine claim); Department of Revenue v. Kurth Ranch, 511 U.S. 767 , 114 S.Ct. 1937 , 128 L.Ed.2d 767 (1994) (discussed deterrence and applied objective legislative intent test in a double jeopardy challenge to a “drug tax,” stating that some deterrence would not render a ³⁸⁹ measure to be punishment); California Department of Corrections v. Morales, 514 U.S. 499 , 115 S.Ct. 1597 , 131 L.Ed.2d 588 (1995) (considered the effects of a statute that decreased a prisoner’s entitlement to parole eligibility hearings in an ex post facto challenge); and Kennedy v. Mendoza-Martinez, 372 U.S. 144 , 83 S.Ct. 554 , 9 L.Ed.2d 644 (1963) (held that divesting American citizenship for draft evasion or military desertion was punishment for Fifth and Sixth Amendment purposes). The Artway Court then synthesized from these cases a three-prong test to determine whether the statute before it was punitive in nature: (1) actual purpose, (2) objective purpose, and (3) effect.

Artway, 81 F.3d at 1254 . In E.B. v. Verniero, the Third Circuit reviewed Supreme Court decisions subsequent to Artway , notably United States v. Ursery, 518 U.S. 267 , 116 S.Ct. 2135 , 135 L.Ed.2d 549 (1996), and Kansas v. Hendricks, 521 U.S. 346 , 117 S.Ct. 2072 , 138 L.Ed.2d 501 (1997). E.B., 119 F.3d at 1094-95 . In Ursery , the Supreme Court held that civil forfeitures were not punishment for double jeopardy purposes even if the value of the property forfeited was arguably excessive as compared to the harm inflicted on the government by the conduct that gave rise to the forfeiture.

In Hendricks , the Supreme Court upheld a Kansas statute that provided for civil commitment of “sexually violent predators,” stating that it was not punishment for purposes of the ex post facto or double jeopardy clauses. The E.B. court reaffirmed the test enunciated in Artway . In upholding New Jersey’s “Megan’s Law,” the Third Circuit explained that the legislative purpose of the statute was to identify potential recidivists and to alert the public when necessary for public safety and to promptly resolve incidents involving sexual abuse and missing persons. E.B., 119 F.3d at 1097 .

The Court concluded that protecting the public and preventing crimes was a regulatory and not punitive action. Consequently, the statutory requirements were not punishment. Id. at 1105 . Other courts have addressed constitutional challenges to sexual offender laws and have generally upheld them, although not always with the same reasoning or with the same ³⁹⁰ synthesis of Supreme Court precedents.

See Femedeer v. Haun, 227 F.3d 1244 (10th Cir.2000) (upheld Utah’s sexual offender statute from double jeopardy and ex post facto challenges on ground that it was not punitive); Cutshall v. Sundquist, 193 F.3d 466 (6th Cir.1999) (upheld Tennessee’s sexual offender statute on double jeopardy, ex post facto, bill of attainder, due process, equal protection, Eighth Amendment, right to travel inter-state, and right to privacy challenges on the