Owens v. State, 129

• Court: Court of Appeals of Maryland
• Citation: 352 Md. 663,724 A.2d 43
• Docket Number: No. 129,129
• Parties: Timothy R. OWENS v. STATE of Maryland.
• Decision Date: 12 February 1999

724 A.2d 43
352 Md. 663

Timothy R. OWENS
v.
STATE of Maryland

No. 129, Sept. Term, 1997.

Court of Appeals of Maryland.

February 12, 1999.

724 A.2d 44

George E. Burns, Jr., Assistant Public Defender (Stephen E. Harris, Public Defender, Nancy S. Forster, Assistant Public Defender, on brief), Baltimore, for appellant

Ann N. Bosse, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, on brief), Baltimore, for appellee.

Before BELL, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, RAKER, WILNER and CATHELL JJ.

CHASANOW, Judge.

We are called upon in this case to examine the constitutionality of Maryland's statutory rape law, Maryland Code (1957, 1996 Repl.Vol.), Article 27, § 463(a)(3),¹ as interpreted by this Court in Garnett v. State,

724 A.2d 45

332 Md. 571, 632 A.2d 797 (1993), to be a strict liability offense. For the reasons set forth below, we hold that Appellant's rights to due process under the Maryland and United States Constitutions were not violated when, upon being charged with statutory rape, the trial court prevented Appellant from presenting his defense that he reasonably believed the victim was above 13 years of age

I.

A.

The facts in this case are not in dispute. According to the agreed statement of facts, on April 11, 1997, a police officer conducting a routine nighttime patrol discovered Timothy Owens and Ariel Correta Johnson in the rear seat of a parked car, dressing. When asked, Johnson told the police officer that she was 16 years old. After calling Johnson's residence, he discovered that her correct date of birth was October 16, 1983, making her 13 years old at the time of the incident. Owens was born April 27, 1978, making him 18 years old at the time. After compiling evidence that the two had just engaged in sexual intercourse, Owens was charged with second degree rape in violation of § 463(a), which states in pertinent part: "A person is guilty of rape in the second degree if the person engages in vaginal intercourse with another person: * * * (3) Who is under 14 years of age and the person performing the act is at least four years older than the victim." Owens elected to proceed by way of a not guilty agreed statement of facts, which the prosecutor recited into the record. It was not disputed that "[t]he victim, if asked, would also testify that she had told the Defendant that she was 16 years of age."

Owens' counsel made a motion to dismiss the charges, arguing that the statute was unconstitutional in that it violated Owens' due process rights under the United States Constitution and the Maryland Declaration of Rights. Owens also argued that, notwithstanding this Court's decision in Garnett, the trial court should find that there was a reasonable mistake of fact that negates Owens' guilt. The trial judge denied that motion and also denied a subsequent motion for judgment of acquittal noting that, under Garnett, mistake of age could only be used as a mitigating factor at the time of sentencing. The judge then found Owens guilty of second degree rape and sentenced him to 18 months of imprisonment, with all but time served (12 days) suspended, and 18 months of probation. Owens was also ordered to register as a child sex offender, as required by § 792, and to submit to DNA testing. In sentencing Owens, the court specifically considered mistake of age as a mitigating factor. Owens appealed to the Court of Special Appeals and this Court, on its own motion, granted certiorari before review by that court.

B.

In Garnett, we addressed whether Maryland's statutory rape law required the State to prove whether the defendant knew the female victim was younger than 14 years of age and whether the trial court erred by excluding evidence "that he had been told, and believed, that she was 16 years old." Garnett, 332 Md. at 574, 632 A.2d at 798. In ruling that the defendant in Garnett could not present evidence that he was told and believed that the defendant had reached 16 years of age, the trial judge ruled that § 463(a)(3) requires proof of only three elements: (1) that there was vaginal intercourse; (2) that the complaining witness was, in fact, under 14 years of age; and (3) the defendant was at least four years older than the complaining witness with whom he had sexual intercourse. 332 Md. at 575, 632 A.2d at 799. The trial court concluded that statutory rape was a strict liability offense and, therefore, mistake of age could not be a defense. On appeal, the defendant argued that § 463(a)(3), which has no express mens rea requirement, should be judicially interpreted to allow a defense of a reasonable mistake of age. After reviewing the legislative history of Maryland sex crimes statutes, Garnett, 332 Md. at 576, 632 A.2d at 799-800, we concluded:

"[T]he Legislature explicitly raised, considered, and then explicitly jettisoned any notion of a mens rea element with respect

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to the complainant's age in enacting the law that formed the basis of current § 463(a)(3). In the light of such legislative action, we must inevitably conclude that the current law imposes strict liability on its violators."

Garnett, 332 Md. at 587, 632 A.2d at 805. Thus, we held that the trial court had not erred in refusing to allow Garnett to present evidence that he had been told, and in fact believed, that the complaining witness was 16 years old. Garnett, 332 Md. at 584-86, 632 A.2d at 803-05. Our holding that the statute did not afford defendant a mistake-of-age defense was consistent with the majority rule in that "a defendant's knowledge of the age of a victim is not an essential element of statutory rape" and that "[p]roof of a statutory rape requires merely proof of an act of sexual intercourse and proof that the victim is below the prohibited age." Colin Campbell, Annotation, Mistake or Lack of Information as to Victim's Age as Defense to Statutory Rape, 46 A.L.R.5th 499, 508 (1997). We did not, however, address the constitutionality of § 463(a)(3).

Although we did not address the constitutional question in Garnett, we noted that "[t]he requirement that an accused have acted with a culpable mental state is an axiom of criminal jurisprudence." 332 Md. at 578, 632 A.2d at 800. In the instant case, we consider whether the "axiom" we noted in Garnett is of constitutional dimensions with respect to Maryland's statutory rape law. In particular, we must determine whether the legislature exceeded its powers under the Fourteenth Amendment of the United States Constitution² and Articles 20 and 24 of the Maryland Declaration of Rights³ by precluding Appellant from raising his mistake-of-age defense.

II.

The United States Supreme Court has never addressed the constitutionality of denying a defendant the ability to present a mistake-of-age defense to the crime of statutory rape. On a number of occasions, however, the Supreme Court has articulated its strong preference for finding within a criminal statute a mens rea element where none has been expressly included. Appellant cites Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952), for the proposition that "in order to convict a defendant of a criminal offense, the State must prove a culpable mental state." Morissette had been charged with "unlawfully, wilfully and knowingly steal[ing] and convert[ing]" U.S. government property when he took bomb casings from an Air Force practice bombing range. Morissette, 342 U.S. at 247-48, 72 S.Ct. at 241-42, 96 L.Ed. at 292. He challenged his conviction on the ground that he should have been able to present the defense that he reasonably believed that the shell cases had been abandoned. Morissette, 342 U.S. at 248-49, 72 S.Ct. at 242-43, 96 L.Ed. at 292-93. In assessing whether the federal larceny statute dispensed with a criminal intent requirement, the Court discussed its "universal and persistent" policy favoring some mental element to justify punishment. Morissette, 342 U.S. at 250-51, 72 S.Ct. at 243, 96 L.Ed. at 293-94. In light of the common law's requirement of intent for the crime of theft, the Court reversed the defendant's conviction.

Similarly, in Staples v. United States, 511 U.S. 600, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994), the Court interpreted the National

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Firearms Act to include a mens rea requirement, reversing a criminal conviction. The trial court had ruled that the prosecution did not have to prove that the defendant knew that he possessed a weapon with characteristics that brought it within the prohibitions of the Act. Reversing the lower courts, the Supreme Court accepted the defendant's argument that the government should have been required to prove beyond a reasonable doubt that the defendant knew the weapon he possessed was an automatic weapon required to be registered under the Act. Staples, 511 U.S. at 619-20, 114 S.Ct. at 1804, 128 L.Ed.2d at 624-25. See also United States v. X-Citement Video, Inc., 513 U.S. 64, 78, 115 S.Ct. 464, 472, 130 L.Ed.2d 372, 385 (1994)(holding that the term "knowingly" in an obscenity statute required knowledge that the materials included sexual depictions of minors). We have similarly been reluctant to read into criminal statutes an intent of the legislature to forego a mens rea requirement. See State v. McCallum, 321 Md. 451, 456-57, 583 A.2d 250, 252-53 (1991)(interpreting statute prohibiting driving with a suspended license to include a mental element); Dawkins v. State, 313 Md. 638, 649, 547 A.2d 1041, 1046 (1988)(observing that the "statutory scheme strongly indicates an intention on the part of the General Assembly to require scienter as an element of the [possession of controlled substances and controlled paraphernalia] offenses")

Appellant finds perhaps his strongest support that the absence of a mens rea requirement in a criminal statute is violative of due process in Lambert v. California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957), reh'g denied, 355 U.S. 937, 78 S.Ct. 410, 2 L.Ed.2d...