Maxwell v. State

• Decision Date: 30 March 2006
• Docket Number: No. 1882, September Term, 2003.,1882, September Term, 2003.
• Citation: 895 A.2d 327,168 Md. App. 1
• Parties: Charles Levi MAXWELL v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 327

895 A.2d 327

168 Md. App. 1

Charles Levi MAXWELL v. STATE of Maryland.

No. 1882, September Term, 2003.

Court of Special Appeals of Maryland.

March 30, 2006.

Stacy W. McCormack (Nancy Forster, Public Defender, on the brief), Baltimore, for appellant.

Kathryn Grill Graeff (J. Joseph Curran, Jr., Attorney General, on the brief), Baltimore, for appellee.

Panel: DAVIS, ADKINS, and MEREDITH, JJ.

MEREDITH, J.

Charles Levi Maxwell, appellant, a 33-year-old former high school teacher, was convicted by a Howard County jury of sexual offense in the third degree and attempted second degree rape for having lured a 13-year-old girl to engage in sexual activity with him. For the two convictions, Maxwell was given concurrent sentences of imprisonment with all but four years suspended.

Maxwell has not appealed his conviction for the third degree sexual offense, but attacks his conviction for attempted second degree rape on three grounds. Maxwell contends that: (1) there can be no criminal liability for attempted statutory rape when that offense is based upon strict liability for sex with an underage partner; (2) the trial court erred in the instructions it gave the jury regarding attempt; and (3) the evidence was insufficient to support the conviction for attempt because the State did not establish that Maxwell took a substantial step beyond mere preparation for sexual intercourse. Perceiving no error, we shall affirm the conviction.

1. Background

On New Year's Day of 2003, a girl we will refer to in this opinion as SG was 13 years old, one week shy of her 14th birthday. She was an eighth grade student, at home on a holiday. Feeling bored, she logged onto the internet, and, using her AOL screen name, entered a chat room she had previously visited. This particular chat room was devoted to romance.¹

In the romance chat room, SG began chatting with Maxwell, who utilized the screen name "deepeyesforyou69." SG told Maxwell that she was a 14-year-old girl who lived in Howard County, Maryland. Maxwell replied that he lived in Baltimore County, and suggested they meet. The chat included references to sex and SG's insistence upon the use of a condom. Maxwell asked for her telephone number and address. As she had done on other occasions, SG gave her telephone number to a person whom she had met through an internet chat room, in this instance, Maxwell. Maxwell called SG, and they continued their conversation. At some point, he told her he was in his 20's and that his name was Craig. They made plans for Maxwell to drive to Howard County to pick her up later that same afternoon. SG gave Maxwell her address and told him she would wait for him at the end of her street.

SG told her mother that she was going out for a walk, and then waited on the street corner for Maxwell to show up. Maxwell drove his car to the corner where SG was waiting. He rolled down the window and asked if she was SG, and then invited her to get in his car. She recognized his voice and entered the car. After SG got into the car, Maxwell asked her if there was a church nearby, and SG directed him to a nearby church. Maxwell pulled into the deserted parking lot of the church and parked far from the church buildings.

According to SG, Maxwell then began kissing her and fondling her breasts. He then lifted her shirt and bra and began kissing her exposed breasts. When Maxwell asked her to remove her pants, SG complied by pushing her sweat pants and underpants down to her ankles, after which Maxwell used his hands to push her legs apart and feel inside her vagina.

At some point, Maxwell took out a video camera and asked SG if it was okay to record what they were doing. She told him it was not okay, but she was suspicious that when he placed the camera on the dashboard of the car he left the camera on in spite of what she said.

Maxwell lowered SG's seatback to the reclining position and told SG to turn on her stomach. When she complied, he fondled and kissed her bare buttocks.

Maxwell then told SG to turn over again, and he pushed down his own pants and placed her hand on his penis while he touched her vagina. Maxwell pulled a condom out of a little box that was in the passenger compartment. At that moment a car began to enter the parking lot area. Maxwell said "car," and told SG to fix her clothing as he did likewise.

Maxwell asked SG if she wanted to go and "finish it" at a different church, but she responded that she just wanted to go home. At her request, Maxwell drove SG to her friend's house, dropped her off, and then drove away.

Feeling nervous, ashamed, and a little sick to her stomach, SG told her friend, who was also an eighth grade student, what she had just experienced. SG's friend convinced her to go home and tell SG's mother. SG told her mother, who called the police. Later on that same day, a police officer came to SG's home and interviewed her.

Under police supervision, SG entered the romance chat room again on January 3, 2003, and was promptly contacted by deepeyesforyou69. Acting upon instructions from the police, who hoped to apprehend the man known to SG as deepeyesforyou69 and Craig, SG scheduled a second rendezvous with Maxwell for January 7. When Maxwell appeared at the appointed time and location on January 7, he was arrested. Maxwell commented to the arresting detective, "my career is over."

2. Discussion

A. In Maryland, attempted rape in the second degree is a statutory felony offense.

The version of second degree rape that Maxwell is alleged to have attempted to commit is sometimes referred to as statutory rape, currently proscribed by Md.Code (2002), Criminal Law Article ("CL"), § 3-304(a)(3), which provides: "A person may not engage in vaginal intercourse with another ... [i]f the victim is under the age of 14 years, and the person performing the act is at least 4 years older than the victim." Maxwell points out that the Court of Appeals has held that this statute imposes strict liability upon the offender, that no proof of mens rea is required, and that a good faith mistake of age is not a defense. Garnett v. State, 332 Md. 571, 584-85, 632 A.2d 797 (1993); accord Owens v. State, 352 Md. 663, 690, 724 A.2d 43, (the statute does not offend the constitution), cert. denied, 527 U.S. 1012, 119 S.Ct. 2354, 144 L.Ed.2d 250 (1999). See also Walker v. State, 363 Md. 253, 265-66, 768 A.2d 631 (2001) (mistake of age is not a defense to age-based third degree sexual offense defined by CL § 3-307(a)(5)). In light of the holdings in Garnett and Owens that age-based second degree rape is a strict liability crime, Maxwell argues that, "[a]s a matter of law, one cannot attempt to commit a strict liability offense," and therefore his conviction for attempted rape in the second degree must be vacated.²

Maxwell overlooks the fact that he was not convicted of common law misdemeanor attempt, see Dabney v. State, 159 Md.App. 225, 234-35, 858 A.2d 1084 (2004), but was convicted of a separate statutory felony offense, viz., CL § 3-310, which expressly provides: "A person may not attempt to commit rape in the second degree." Further, the trial court specifically instructed the jury that in order to convict Maxwell of attempted rape in the second degree the jury would have to find, as one element, that "the defendant intended to commit the crime of second degree rape." We agree with the appellate courts from a number of other states that have rejected the argument made by Maxwell and have concluded that the State may impose liability for attempted statutory rape.³

In State v. Sines, 158 N.C.App. 79, 579 S.E.2d 895, cert. denied, 357 N.C. 468, 587 S.E.2d 69 (2003), the defendant was convicted of attempted statutory sexual offense. He moved to dismiss the charge, asserting that the attempted statutory offense was a "logical impossibility" under North Carolina law. This contention was rejected. The North Carolina intermediate appellate court explained, in a passage that merits extended quotation:

In order to prove an attempt of any crime, the State must show: "(1) the intent to commit the substantive offense, and (2) an overt act done for that purpose which goes beyond mere preparation, but (3) falls short of the completed offense."⁴ State v. Miller, 344 N.C. 658, 667, 477 S.E.2d 915, 921 (1996) (citing State v. Collins, 334 N.C. 54, 431 S.E.2d 188 (1993)). An act must be done with specific intent to commit the underlying crime before a defendant may be convicted of an attempted crime. See State v. Coble, 351 N.C. 448, 527 S.E.2d 45 (2000). Here, the evidence in the light most favorable to the State shows that defendant committed an overt act that would have aided in the commission of statutory sexual offense. Defendant's placement of his penis in front of victim's face, coupled with his demand for oral sex, comprise an overt act sufficient to satisfy the second element of attempt....

The remaining element is the intent to commit the substantive offense. Defendant argues that it is logically impossible to have the specific intent to commit a strict liability crime which does not require a specific intent.... Defendant argues that since our State does not recognize attempted general intent crimes, it cannot logically recognize attempted strict liability or non-intentional crimes. We disagree.

We find the reasoning of the Washington Supreme Court in State v. Chhom persuasive in this case. See State v. Chhom, 128 Wash.2d 739, 911 P.2d 1014 (1996). The Revised Code of Washington contains a statute which is similar in form and function to our G.S. § 14-27.7A. The crime is entitled "rape of a child" and is defined as having "sexual intercourse with another who is less than twelve years old and not married to the perpetrator and the perpetrator is at least twenty-four months older than the victim." Wash. Rev.Code Ann. § 9A.44.073 (West 2000). A second- and third-degree level of this offense are also defined in the statutes for offenses...