Dillsworth v. State
Decision Date | 01 September 1986 |
Docket Number | No. 36,36 |
Citation | 519 A.2d 1269,308 Md. 354 |
Parties | Terry Lang DILLSWORTH v. STATE of Maryland |
Court | Maryland Court of Appeals |
Arthur A. DeLano, Jr., Asst. Public Defender (Alan H. Murrell, Public Defender, on the brief), Baltimore, for appellant.
Valerie W. Loftin, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen., on the brief), Baltimore, for appellee.
Argued before MURPHY, C.J., ELDRIDGE, COLE, RODOWSKY, COUCH and McAULIFFE, JJ., and MARVIN H. SMITH, Associate Judge of the Court of Appeals of Maryland (retired), Specially Assigned.
MARVIN H. SMITH, Judge, (retired), Specially Assigned.
Petitioner Terry Lang Dillsworth, after conviction by an Allegany County jury, was sentenced to consecutive terms for assault with intent to maim, disfigure or disable, and third degree sexual offense. At trial the victim testified that when Dillsworth attacked her he said he was going to rip out her vagina. She said further, "He put his hand inside me and started to pull and tear at me." Next, Dillsworth threatened to rip out the victim's throat. He placed two or three fingers down her throat and choked her. The Court of Special Appeals affirmed the convictions in Dillsworth v. State, 66 Md.App. 263, 503 A.2d 734 (1986).
We granted Dillsworth's petition for a writ of certiorari to consider his contentions that the convictions for assault with intent to maim and third degree sexual offense should have been merged and that the sentence was based, in part, upon impermissible considerations. We shall affirm.
Dillsworth contends that merger of the offenses of assault with intent to maim, disfigure or disable and third degree sexual offense is mandated by both the required evidence test and the rule of lenity.
We have consistently applied the required evidence test in determining whether two offenses are the same for double jeopardy purposes. See Brooks v. State, 284 Md. 416, 420-21, 397 A.2d 596, 598 (1979); Thomas v. State, 277 Md. 257, 266, 353 A.2d 240, 246 (1976). Judge Eldridge recently summarized the test for the Court in State v. Jenkins, 307 Md. 501, 515 A.2d 465 (1986):
1 307 Md. at 517, 515 A.2d at 473.
284 Md. at 420, 397 A.2d at 598 (emphasis in original; citations omitted).
Jenkins involved convictions for assault with intent to murder and assault with intent to maim, disfigure or disable. The two offenses were based on a single act: the shooting of another man during an altercation. We held that assault with intent to maim merges into assault with intent to murder when the offenses are based on the same, single act of assault. 307 Md. at 521-22, 515 A.2d at 475. The basis for the merger, however, was not the required evidence test. We said that under that test the offenses would not merge as each requires proof of a distinct element. Specifically, one offense requires proof of an actual, specific intent to murder. The perpetrator of an assault with intent to maim, disfigure or disable, on the other hand, contemplates that the victim shall live. Consequently, the two intents are "different in kind" and do not merge under the required evidence test. Id. at 515, 517-18, 515 A.2d at 472, 473.
We have applied the required evidence test in other cases, concluding that statutory daytime housebreaking with intent to steal does not merge with statutory breaking and entering a dwelling house, Hawkins v. State, 291 Md. 688, 436 A.2d 900 (1981); that solicitation to commit murder merges into the offense of being an accessory before the fact to the murder, Lewis v. State, 285 Md. 705, 404 A.2d 1073 (1979); that the underlying felony merges into a conviction for felony murder, Newton v. State, 280 Md. 260, 373 A.2d 262 (1977); that assault and the statutory offense of carrying a weapon openly with intent to injure do not merge, Cousins v. State, 277 Md. 383, 354 A.2d 825, cert. denied, 429 U.S. 1027, 97 S.Ct. 652, 50 L.Ed.2d 631 (1976); and that assault merges into rape, Green v. State, 243 Md. 75, 220 A.2d 131 (1966).
We turn to the question of whether the two offenses involved here each requires proof of an element which the other does not. 2 Assault with intent to maim, disfigure or disable is proscribed by Maryland Code (1957, 1982 Repl.Vol.) Art. 27, § 386:
"If any person ... shall assault or beat any person, with intent to maim, disfigure or disable such person ... every such offender ... shall be guilty of a felony...."
The provisions relative to third degree sexual offense are found in Code (1957, 1982 Repl.Vol.) Art. 27, § 464B, which states in relevant part:
Both offenses carry maximum penalties of ten years.
In Jenkins we said, "Assault with intent to maim, disfigure or disable ... requires one of these three enumerated statutory intents...." 307 Md. at 515, 515 A.2d at 472. Third degree sexual offense requires proof of forcible, unconsented-to sexual contact and, for purposes of this case, one of the enumerated aggravating circumstances, among which are included threatening or inflicting "disfigurement."
Assuming that under Green, 243 Md. 75, 220 A.2d 131, simple assault merges into a third degree sexual offense, the inquiry narrows to whether that relationship is affected by adding to simple assault the element of intent to maim, disfigure or disable. Clearly, third degree sexual offense requires elements which assault and assault with intent to maim, disfigure or disable do not. For example, the sexual offense requires proof that a specific part of the body was touched or penetrated, and that the purpose was sexual arousal, sexual gratification, or abuse. Consequently, unless it can be said that an actual, specific intent to maim, disfigure or disable constitutes an element of third degree sexual offense, there can be no question but that each offense requires proof of an element which the other does not. As earlier noted, either the infliction or the threatening of disfigurement would satisfy the aggravating circumstance requirement of third degree sexual offense. Code (1957, 1982 Repl.Vol.) Art. 27, § 464B(a)(1)(ii), (iii). However, neither inflicting nor threatening disfigurement necessarily involves an actual, specific intent to disfigure. For example, it is quite possible to inflict disfigurement without having a specific intent to do so. Similarly, one could threaten disfigurement without having any actual intent of carrying out the threat. Although an actual intent to disfigure could accompany the infliction or threat, § 464B does not require such an intent. The language we quoted earlier from Thomas, 277 Md. at 267, 353 A.2d at 246-47, offers guidance: "The required evidence is that which is minimally necessary to secure a conviction for each statutory offense." (Emphasis added.) We conclude that there is no merger of these two crimes under...
To continue reading
Request your trial-
Randall Book Corp. v. State
...v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); State v. Ferrell, 313 Md. 291, 545 A.2d 653 (1988); Dillsworth v. State, 308 Md. 354, 519 A.2d 1269 (1987); Whack v. State, 288 Md. 137, 416 A.2d 265 (1980), cert. denied, 450 U.S. 990, 101 S.Ct. 1688, 68 L.Ed.2d 189 (1981); Newto......
-
Adams v. State
...each requires proof of a fact which the other does not. Dillsworth v. State, 66 Md.App. 263, 271, 503 A.2d 734 (1986), aff'd, 308 Md. 354, 519 A.2d 1269 (1987). If each offense requires proof of a fact which the other does not, the offenses are not the same and do not merge. However, if onl......
-
Pair v. State
...statutory and the other is a derivative of common law.”). As Judge Smith pointed out for the Court of Appeals in Dillsworth v. State, 308 Md. 354, 364, 519 A.2d 1269 (1987): The doctrine of merger by legislative intent operates as a rule of statutory construction and is not constitutionally......
-
Spitzinger v. State
...of those crimes the maximum punishment for felony theft is reduced to the maximum punishment for robbery. We said in Dillsworth v. State, 308 Md. 354, 519 A.2d 1269 (1987): "Lenity ... serves only as an aid for resolving an ambiguity; it is not to be used to beget one. The rule comes into o......