Lamb v. State, No. 353

• Court: Court of Special Appeals of Maryland
• Writing for the Court: Submitted before WILNER; MOYLAN
• Citation: 93 Md.App. 422,613 A.2d 402
• Parties: Todd William LAMB v. STATE of Maryland. ,
• Decision Date: 01 September 1991
• Docket Number: No. 353

Page 422

93 Md.App. 422 613 A.2d 402 Todd William LAMB
v.
STATE of Maryland. No. 353, Sept. Term, 1991. Court of Special Appeals of Maryland. Oct. 1, 1992.
Certiorari Denied Jan. 14, 1993.

[613 A.2d 403]

Page 426

Nancy S. Forster, Asst. Public Defender (Stephen E. Harris, Public Defender, on the brief), Baltimore, for appellant.

Gwynn X. Kinsey, Jr., Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Logan C. Widdowson, State's Atty. for Somerset County, Princess Anne, on the brief), for appellee.

Submitted before WILNER, C.J., and MOYLAN and ALPERT, JJ.

[613 A.2d 404] MOYLAN, Judge.

The appellant, Todd William Lamb, was convicted by a Somerset County jury, presided over by Judge Daniel M. Long, of 1) breaking and entering, 2) assault, 3) battery, 4) false imprisonment, and 5) reckless endangerment. He received a sentence of two years for breaking and entering and that judgment is of no further concern to us. The conviction for reckless endangerment was merged into that for assault and is also of no further concern to us.

The appellant received a consecutive sentence of ten years for assault, a consecutive sentence of six years for battery, and a consecutive sentence of six years for false imprisonment for a total of twenty-four years. He now argues:

1. That his conviction for assault should, as a lesser included offense, have merged into his conviction for battery; and

Page 427

2. That his conviction for battery, in turn, should also, as a lesser included offense, have merged into his conviction for false imprisonment.

With the three convictions thus merged in the fashion the appellant would have them merged, his total sentence of twenty-four years would be reduced to a sentence of but eight years. Although the appellant made no timely objection to the nonmerger of convictions at the time of sentencing, it is clear that the issue of nonmerger is reviewable by an appellate court even absent preservation of the issue by the appellant. Campbell v. State, 65 Md.App. 498, 510-511, 501 A.2d 111 (1985).

The Relationships Among Assaults and Batteries

We turn our attention initially to the arguable merger of assault into battery. It requires us to look at the crime (or crimes) of assault and the crime (or crimes) of battery generally and then to look at the particular assault in this case and the particular battery in this case specifically. Our general investigation will be doomed at the outset if we conceive of it as an exploration of the relationship between assault and battery. We must conceptualize it, rather, as an exploration of the multiple relationships among various assaults and various batteries. The key to avoiding the almost hopeless confusion clogging much of the case law is to think plural.

Ironically, it is sometimes these seemingly simplest of crimes that are the most difficult to master. The intricate overlapping of multi-layered continuing criminal enterprises and the nice distinctions between "spoke and wheel" conspiracies and "chain" conspiracies, for example, are as child's play to the familiar standby of assault and battery. This is not as remarkable as it at first may seem. The elements of latter-day statutory crimes, no matter how intricate, have been hammered out on the legislative anvil with meticulous precision. The common law standbys, by contrast, have grown by gradual and random accretion. As with a coral reef, there is no perceptible change from year

Page 428

to year. Over centuries, however, there develop forms and shapes that bear but slight resemblance to the aboriginal prototype. Once reliable descriptions lose currency. Thus has it been with assault and battery.

The Various Forms of Assault

Today, the term of art "assault" may connote any of three distinct ideas:

1. A consummated battery or the combination of a consummated battery and its antecedent assault;

2. An attempted battery; and

3. A placing of a victim in reasonable apprehension of an imminent battery.

A. A Battery Itself or a Combined "Assault and Battery":

By way of informal (or sometimes even formal) shorthand, both the case law and the statutory law frequently use the simple noun "assault" to connote a consummated battery alone and at other times to connote the combination of the inchoate attempt to beat or to batter followed immediately by the consummation of that attempt. Thus used, "assault" is a synonym for "battery" and is also a synonym for the combined form "assault and battery." It was of this [613 A.2d 405] we spoke in Anderson v. State, 61 Md.App. 436, 440, 487 A.2d 294, 295-296 (1985):

"One of the varieties of criminal conduct embraced by the word 'assault' or phrase 'assault and battery' ¹ is a consummated battery.

The cognate noun "assailant," moreover, designating the assaulting criminal agent, embraces with equal certainty 1) one who attempts to beat, 2) one who only threatens to beat, 3) one who actually beats, and 4) one who both

Page 429

attempts to beat and then beats. Conversely, we do not describe the criminal agent of a battery as a "batterer" or "beater" (except in such exotic forms as "wife-beater" or "child-beater"). The single term "assailant" does nicely for all of the assaultive modalities.

Legislatively, we have elevated to the felony level a series of aggravated assaults and/or batteries. Md.Ann.Code art. 27, § 12. ¹ We call them, however, aggravated assaults, clearly using the word "assault" in its more embracing sense. Section 12 punishes at the felony level the crimes of "an assault with intent to rob," "an assault with intent to murder," and "an assault with intent to commit a rape in any degree or a sexual offense in the first or second degree." ²

What Maryland has done legislatively is a common, if not universal, phenomenon among American states, just as is the subsumed use of the noun "assault" to connote a battery a common, if not universal, usage. W. LaFave and A. Scott, Criminal Law (2d ed.), § 7.15(d) at 688, explains:

"(d) Aggravated Battery. All jurisdictions have statutes, variously worded, which define aggravated batteries and punish them as felonies. Traditionally, the most

Page 430

common statute of this type was one covering 'assault ³³ with intent to murder' (or to kill, or to do great bodily injury, or to rape, rob, or commit mayhem).

Assaults with intent to rob, to be sure, will frequently involve "mere assaults" and not actual batteries, for the mere threatening of the battery is frequently the instrumentality of the intended robbery. Rose v. State, 37 Md.App. 388, 389-390, 377 A.2d 588 (1977). On the other hand, many intended robbery victims are actually wounded in the process or at least "yoked" to the ground by "assaults with intent to rob" consisting of actual batteries. Bryant v. State, 4 Md.App. 572, 575-579, 244 A.2d 446 (1968). Assaults with intent to murder may easily involve "mere assaults" (as where the bullet misses), Woodard and Demby v. State, 13 Md.App. 114, 123, 282 A.2d 9 (1971); cf. Hall v. State, 69 Md.App. 37, 46-47, 516 A.2d 204 (1986), or just as easily actual batteries (wherein the victim survives the attack). Bremer v. State, 18 Md.App. 291, 307 A.2d 503 (1973). In either event, they constitute assaults with intent to murder. Assaults [613 A.2d 406] with intent to rape (or to commit a sexual offense) will almost always consist of actual batteries, in the form of either violent force or offensive touching or both. Duffin v. State, 229 Md. 434, 184 A.2d 624 (1962). It is clear that the word "assault" in § 12 of art. 27 embraces not only attempted batteries but also actual batteries, as well as the combination of the two.

By way of interesting linguistic contrast, Md.Ann.Code art. 27, § 386 designates for punishment at the felony level anyone who "shall assault or beat any person, with intent to maim, disfigure or disable ..." (emphasis supplied). Two specific verbs are used instead of a single generic verb. It is clear, however, that the physical behavior explicitly embraced by § 386 is implicitly embraced by § 12, with the difference between the two statutory sets of aggravated attacks to be found only in their respective mentes reae.

Page 431

Other instances abound of the legislative use of the word "assault" in its more comprehensive sense to embrace, inter alia, the notion of a battery. Former §§ 11B and 11C, repealed by ch. 655 of the Acts of 1969, provided special penalties for the crime of "Assault on Police." The primary legislative intent was clearly to cope with the problem of batteries upon police officers, although mere inchoate or attempted batteries were incidentally included as well. Indeed, former § 11B(a) expressly recognized both beating and striking as forms of assault, as it made it unlawful "for any person to beat, strike or otherwise to assault a policeman ..." (emphasis supplied).

Section 11E, mandating consecutive sentencing and prohibiting the suspension of a sentence in the case of an inmate being convicted of an "assault on another inmate or on an employee of the Division of Correction," (emphasis supplied) clearly embraces a battery upon an inmate as surely as it does an attempted battery. The subtitle as well as the statutory text uses the all-embracing term: "Assault by Inmates."

A nationwide reform movement in the late 1950's occurred in response to a growing recognition of the so-called "Battered Child Syndrome." Maryland's response to the problem was ch. 743 of the Laws of 1963, initially codified as art. 27, § 11A, ³ which created an aggravated assault at the felony level entitled "Assault on Child." Anderson v. State, 61 Md.App. 436, 442, 487 A.2d 294 (1985). Notwithstanding the use of the noun "assault," Maryland clearly was responding to the problem of battered children by prescribing heavy penalties for the battery of children. The critical prohibition was upon "caus[ing] abuse to the child," with "abuse" being defined as the "sustaining of physical...