In re Areal B.

• Decision Date: 27 December 2007
• Docket Number: No. 2096, Sept. Term, 2006.,2096, Sept. Term, 2006.
• Citation: 177 Md. App. 708,938 A.2d 43
• Parties: In re AREAL B.
• Court: Court of Special Appeals of Maryland

938 A.2d 43

177 Md. App. 708

In re AREAL B.

No. 2096, Sept. Term, 2006.

Court of Special Appeals of Maryland.

December 27, 2007.

Brian M. Saccenti (Nancy S. Forster, Public Defender on the brief), Baltimore, for appellant.

Celia Anderson Davis (J. Joseph Curran, Jr., Attorney General on the brief), Baltimore, for appellee.

Argued before KRAUSER, C.J., HOLLANDER and BARBERA, JJ.

BARBERA, J.

Areal B. was charged by juvenile delinquency petition with the act of engaging in prostitution. The State's proof, however, established that Areal committed not prostitution, but solicitation for prostitution. After the State rested, the defense moved to dismiss the petition based on insufficiency of the evidence, and the juvenile master, at the State's request and over defense objection, amended the petition to add a second count charging solicitation. The master denied Areal a continuance, reasoning that the defense was on notice that solicitation "may very well have been charged," and "the facts are the facts." The defense rested without putting on any evidence.

The juvenile master granted the defense motion to dismiss the charge of prostitution and found Areal involved in the act of solicitation for prostitution. The master recommended to the Circuit Court for Baltimore City, sitting as the juvenile court, that the State's request to amend the petition be granted. The master further recommended that Areal be found delinquent and placed on probation under the supervision of the Department of Juvenile Services for an indefinite period of time.

Areal filed an exception in the circuit court to the master's recommendations. She challenged the recommended amendment, the denial of her request for a continuance, and the recommendation that she be found involved in the act of solicitation for prostitution. The juvenile court denied the exception and approved the master's recommendations. The court adjudicated Areal delinquent and placed her on indefinite probation.

Areal raises a single complaint on appeal: "Did the juvenile court err by adding a new count charging a different offense at the adjudicatory hearing after the State rested its case and conceded that the evidence was insufficient to prove the offense originally charged?" We agree with Areal that the juvenile court erred and reverse the judgment.

BACKGROUND

The State alleged in the original juvenile petition that Areal was engaged in prostitution which is conduct that if committed by an adult would constitute a violation of Maryland Code (2002), § 11-306(a)(1) of the Criminal Law Article ("CL"). An adjudicatory hearing was conducted before a juvenile master, at which the State's sole witness, Detective Michael Poole, testified to the facts underlying the charge.

Detective Poole testified that, on August 31, 2005, he was driving an undercover vehicle in the 700 block of East Patapsco Avenue in Baltimore City when he made eye contact with Areal. She waved at Detective Poole, who returned the gesture and pulled over. Areal got into the detective's car, and the two drove off. Areal asked the detective, "What do you want to do?" Detective Poole replied that he wanted her to perform fellatio upon him. Areal responded "Yeah, okay," and the two agreed on the price of $20. Shortly thereafter, Detective Poole advised Areal that he was a police officer and arrested her.

Following cross-examination of the detective, the State rested its case. Defense counsel moved to dismiss the delinquency petition, asserting that the State failed to prove that Areal had engaged in prostitution. The State agreed. The juvenile master asked the State if it wished to amend the petition to add the charge of solicitation for prostitution. In making that suggestion, the master evidently was relying on Maryland Rule 11-108(a), which permits the amendment of a juvenile petition "by or with the approval of the court at any time prior to the conclusion of the ad judicatory hearing." The State answered that it wanted the amendment.

The defense objected and asked for a continuance. Before the master ruled on the objection and continuance request, the State added that defense counsel knew of the police report as early as Areal's arraignment. The police report stated that Areal "[d]id solicit Detective Poole for fellatio in U.S. currency."

The master stated that he would recommend to the juvenile court that the petition be amended to add the solicitation charge and Areal's request for a continuance be denied. The master explained his reasoning: "[F]irst of all, I think that [Areal] was on notice that this may very well have been charged, although she's also relied on a document which did not charge it, so I understand that." The master added: "I also don't see the need for a continuance in this case. The facts are the facts, and they're very simple and very straightforward facts."

The master granted the motion to dismiss the charge of prostitution on the ground that the charge was not sustained by the facts, and he found that the newly added charge of solicitation was sustained by the facts. The master conducted a disposition hearing several weeks later and recommended to the juvenile court that Areal be placed on indefinite probation.

Areal filed an exception in the Circuit Court for Baltimore City. She argued, as one of two claims, that her due process rights were violated when the master permitted the State to amend the petition to change the character of the offense.¹ The juvenile court held a hearing on the exception. The court, reasoning that Maryland Rule 11-108(a) permits an amendment to the delinquency petition, denied the exception. The court explained that, although the amendment "allegedly changed the character of the offense[,] ... a juvenile petition may be amended by or with the approval of the Court at any time prior to the conclusion of the adjudicatory hearing."

In a written memorandum explaining its ruling, the juvenile court reiterated that Rule 11-108 allows a petition to be amended in a case such as this. The court rejected Areal's reliance upon rules of procedure applicable to criminal matters and case law construing those rules, stating that they do not apply to juvenile cases.

This appeal followed.

DISCUSSION

Areal presents two arguments in support of her claim that the judgment should be reversed. She argues that amendment of the delinquency petition to add a new count abridged her due process rights to "specific and adequate notice" of the charge against her. In a related argument, she maintains that Rule 11-108 "cannot reasonably be construed" to permit the addition of the new count under the circumstances of this case.

The State denies that Areal's due process rights were violated by the amendment of the petition and emphasizes that Rule 11-108 permits the amendment of a juvenile petition at any time before the conclusion of the adjudicatory hearing. The State also reminds us that the Juvenile Causes provisions of the Courts and Judicial Proceedings Article illustrate the central purpose of juvenile proceedings to be the "care, protection, and wholesome mental and physical development of children coming within the provisions of this subtitle; and to provide for a program of treatment, training, and rehabilitation consistent with the child's best interests and the protection of the public interest[.]" Md.Code (1973, 2006 Repl.Vol.), § 3-8A-02(4) of the Courts and Judicial Proceedings Article.

Before delving into the issues presented by this appeal, we establish what is not before us. Areal asserts, and the State does not seriously disagree, that the juvenile delinquency petition charged only prostitution, not solicitation for prostitution.² CL § 11-306(a) proscribes, among other acts, the act of engaging in prostitution and the act of soliciting for prostitution. That section reads, in pertinent part: "(a) Prohibited.—A person may not knowingly: (1) engage in prostitution or assignation by any means; ... or (5) procure or solicit or offer to procure or solicit for prostitution or assignation." The terms "prostitution" and "solicit" are defined in CL § 11-301. "`Prostitution' means the performance of a sexual act, sexual contact, or vaginal intercourse for hire." CL § 11-301(c). "`Solicit' means urging, advising, inducing, encouraging, requesting, or commanding another." CL § 11-301(f).

The original petition charged that Areal "[d]id engage in prostitution, in violation of Criminal Law Article, Section 11-306." By charging Areal with "engaging in prostitution," the petition necessarily charged her with engaging in "the performance of a sexual act, sexual contact, or vaginal intercourse for hire." See CL § 11-301(c). We agree with Areal that the petition did not expressly charge the act of solicitation for prostitution.

Areal further asserts, and the State does not argue differently, that the general reference in the petition to CL § 11-306 did not enlarge the scope of the charge to include a charge of solicitation. We agree. It is settled that the scope of the charge is limited by the allegation in the document, not by the statutory citation. Thompson v. State, 371 Md. 473, 489, 810 A.2d 435 (2002) ("The character of the offense is determined by what is stated in the body of an indictment, not the statutory reference or caption.") (internal quotation marks omitted); Ayre v. State, 291 Md. 155, 168 n. 9, 433 A.2d 1150 (1981) (explaining that the statutory reference in a charging document "exists as a matter of convenience to the parties and the court, and thus possesses no substance of its own").

We also agree with Areal that the State did not charge her with solicitation for prostitution merely by charging her with engaging in prostitution. Solicitation for prostitution is not a lesser included offense of prostitution. Rather, the two offenses punish altogether different behavior. Comparison of the statutory definitions of the terms "prostitution" and ...