Dillsworth v. State

• Decision Date: 01 September 1985
• Docket Number: No. 339,339
• Citation: 66 Md.App. 263,503 A.2d 734
• Parties: Terry Lang DILLSWORTH v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 263

66 Md.App. 263

503 A.2d 734

Terry Lang DILLSWORTH v. STATE of Maryland.

No. 339, Sept. Term, 1985.

Court of Special Appeals of Maryland.

Feb. 5, 1986.

Arthur A. DeLano, Jr., Asst. Public Defender (Alan H. Murrell, Public Defender, on brief), Baltimore, for appellant.

Richard B. Rosenblatt, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen., Valerie W. Loftin, Asst. Atty. Gen., Baltimore, Robert W. Hamilton, State's Atty. for Allegany County and Barry R. Levine, Asst. State's Atty. for Allegany County, on brief, Cumberland), for appellee.

Submitted before ADKINS and ALPERT, JJ., and JAMES S. GETTY, Associate Judge of the Court of Special Appeals (retired), Specially Assigned.

ALPERT, Judge.

According to Wendy Sue Tabler, the one-time live-in girlfriend of the appellant, Terry Lang Dillsworth, they had known each other about three years, and appellant had sired two of her three children. Shortly before September 15, 1984, Dillsworth decided that he was no longer going to live with Wendy Sue Tabler, but would take up future residence with one Mary Huffman. On the evening of September 15, 1984, appellant went out socially with Mary Huffman. Wendy Tabler, not to be left in the lurch, dated a man she had just met from Frostburg. She returned home about 10:30 the next morning. At about 7:30 p.m. on September 16, 1984, appellant and Mary Huffman returned to the Tabler abode, and as soon as appellant came in, "he started yelling at [Tabler] for not picking the kids up...." He began kicking and striking her, and Tabler described the attack as follows:

Q. You say he attacked you. What did Mr. Dillsworth say and do at that time?

A. He told me that if I wanted to f--k around he would rip my [vagina] out.

Q. What did he do after he said that?

A. He put his hand inside me and started to pull and tear at me.

Q. How long did that go on for, Miss Tabler?

A. Just about a minute.

A doctor, who had examined Ms. Tabler that same evening, testified to the extent of her injuries, which included a six centimeter-long, one centimeter-deep laceration inside the vagina (which was still bleeding during the examination and required sutures).

On January 23, 1985, a jury in the Circuit Court for Allegany County (Leasure, J., presiding) found appellant guilty of assault with intent to maim, third degree sexual offense, fourth degree sexual offense, and assault and battery. On March 20, 1985, he was committed to the custody of the Commissioner of Corrections for consecutive terms of five years for assault with intent to maim and two years for third degree sexual offense. Noting a timely appeal, appellant asserts that:

I. The evidence was insufficient to sustain appellant's convictions.

II. His sentence for third degree sexual offense should have been merged with his conviction for assault with intent to maim.

III. The court erred in denying appellant's suggestion for removal.

IV. Appellant's sentence was based in part on impermissible considerations.

I.

In reviewing whether evidence is sufficient to support a criminal conviction by a jury, the oft-repeated test is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Tichnell v. State, 287 Md. 695, 717, 415 A.2d 830 (1980) (citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1974)). Here, appellant argues that the evidence was insufficient to show that he possessed the requisite specific intent to commit either an assault with intent to maim or an unlawful sexual contact. Each of these crimes will be examined in turn.

A. Assault with Intent to Maim, Disfigure or Disable

Article 27, § 386 of the Annotated Code of Maryland (1982 Repl.Vol.) provides, in pertinent part:

[A]ny person [who] ... shall unlawfully and maliciously stab, cut or wound ..., or shall assault or beat any person, with intent to maim, disfigure or disable such person ... shall be guilty of a felony....

(Emphasis added).

At the close of the defense's case below, appellant's counsel moved for a judgment of acquittal "on the grounds [that] there is insufficient evidence to establish the intent to commit such a crime."

As no argument was made below on this precise issue, it is not preserved for our review. See Lyles v. State, 63 Md.App. 376, 492 A.2d 959, cert. granted, 304 Md. 362, 499 A.2d 191 (1985). ¹

B. Third Degree Sex Offense

An essential element of a third degree sexual offense is proof that "the person engages in sexual contact." Maryland Ann.Code, Art. 27, § 464B (1982 Repl.Vol.). Appellant contended below that there was insufficient evidence to support a conviction under § 464B, because there was no showing that appellant's actions vis-a-vis the victim's vagina constituted "sexual contact." Section 461(f) of Article 27 in pertinent part states:

"Sexual contact" as used in §§ 464B and 464C, means the intentional touching of any part of the victim's ... genital areas ... for the purposes of sexual arousal or gratification or for abuse of either party and includes the penetration, however slight, by any part of a person's body, other than the penis, mouth or tongue, into the genital or anal opening ... if that penetration can be reasonably construed as being for the purposes of sexual arousal or gratification or for abuse of either party.

(Emphasis added).

Defense counsel, in seeking judgment of acquittal on the charge of third degree sex offense, essentially argued that there was no evidence that the alleged acts involved an effort for sexual arousal or gratification on the part of the defendant. The trial judge, in denying the motion, seems to have equated the words "for abuse" as contained in the statute, with a physical attack intended to inflict sexual injury. ² We agree with that construction, for we do not believe that the physical attack need be intended "for the purpose of sexual arousal or gratification" of either party.

On appeal, the appellant takes a different approach. He now contends that any sexual contact was purely accidental, and was not intended "for the purpose of sexual arousal, gratification or for abuse as required under Art. 27, § 461(f)." As this theory was not advanced below, it is not preserved for our review. See Dempsey v. State, 24 Md.App. 8, 330 A.2d 204 (1974), rev'd on other grounds, 277 Md. 134, 355 A.2d 455 (1976). See also Chertkof v. Dep't of Natural Resources, 43 Md.App. 10, 19, 402 A.2d 1315 (1979), cert. denied, 286 Md. 745.

Even if appellant's trial theory had been preserved for our review, he would not prevail, because the evidence was sufficient to sustain a conviction of "abuse" under our construction of the statute. Because the term "abuse" as used in the statute admits of more than one definition, statutory construction is necessary. See State v. Fabritz, 276 Md. 416, 421-22, 348 A.2d 275 (1975). We note that, when statutes are revised, codified or otherwise reenacted, the new enactment will be given the same construction as the original statutes unless some substantial change in wording indicates a different intention. See Springle v. Cottrell Engineering Corp., 40 Md.App. 267, 391 A.2d 456 (1978). We must recognize, however, that the legislature, in enacting chapter 573, Laws of 1976, sought to reform and modernize Maryland's antiquated sex offense laws. See Rape and Other Sexual Offense Law Reform in Maryland, 7 U.Balt.L.Rev. 151 (1977). Section 461(f) is unlike any of its ancestors. As we have stated so often, and most recently in Simms v. State, 65 Md.App. 685, 501 A.2d 1338 (1986):

The cardinal rule of statutory construction is, of course, to ascertain and effectuate the actual legislative intention. No construction is required where the statutory provisions are unambiguous. Where a statute, however, is plainly susceptible of more than one meaning, construction is required. Under those circumstances we must consider not only the literal or usual meaning of words, but their meaning and effect in light of the setting, the objectives and purpose of the enactment. State v. Intercontinental, Ltd., 302 Md. 132, 137 (1985).

Prior to the enactment of § 461(f) (ch. 573, Laws of 1976), the term "abuse," as it related to sex offenses, could be found only in a statutory rape statute that in part provided:

If any person shall carnally know and abuse any woman child under the age of fourteen ... or any woman who is an imbecile, non compos mentis or insane, of any age whatever, every such carnal knowledge shall be deemed a felony....

Maryland Ann.Code, Art. 27, § 462 (1971 Repl.Vol., repealed by ch. 573, Laws of 1976) (emphasis added). In those jurisdictions where the phrase "carnal knowledge and abuse" has been construed, courts have consistently held "abuse" to be synonymous with a wrongful or defiling sexual touching, but distinguishable from a mere physical injury which is the result of a malicious attack. See, e.g., State v. Ferris, 81 Conn. 97, 70 A. 587 (1908) ("abuse" should not be construed independently from "carnal knowledge" and requires proof of injury to the genital organs); Commonwealth v. Nadolny, 163 Pa.Super. 516, 63 A.2d 129 (1949) ("abuse" means a physical defilement of the body; no requirement to show bodily injury); State v. Cunday, 57 Wash.2d 122, 356 P.2d 609 (1960) ("abuse" only descriptive of effect upon a child under certain age, not of physical harm or injury). Compare Reynolds v. State, 274 Ala. 171, 146 So.2d 85 (1962), which punishes:

Any person who has carnal knowledge of any girl under twelve years of age, or abuses such girl in the attempt to have carnal knowledge of her....

Although the case law of our sister states tends to lead us toward the view advanced by appellant at trial, we must recognize that those decisions emanate from statutes dissimilar to the one here at issue. Thus, in seeking to determine the intent of the legislature, we write on a clean slate.

In enacting the statute sub judice, we presume that the...