Robinson v. State

• Decision Date: 28 April 1999
• Docket Number: No. 74,74
• Citation: 353 Md. 683,728 A.2d 698
• Parties: John William ROBINSON v. STATE of Maryland.
• Court: Maryland Court of Appeals

728 A.2d 698

353 Md. 683

John William ROBINSON v. STATE of Maryland.

No. 74, September Term, 1998.

Court of Appeals of Maryland.

April 28, 1999.

Arthur A. DeLano, Jr., Asst. Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for Petitioner.

Rachel M. Kamins, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, for Respondent.

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

RAKER, Judge.

Petitioner was convicted in the Circuit Court for Prince George's County on June 3, 1997 of assault and battery. We granted certiorari to answer the question whether "common law assault and battery was a cognizable crime in Maryland after October 1, 1996," the effective date of statutory assault, 1996 Laws of Maryland, Ch. 632. We shall hold that by this statutory enactment the General Assembly repealed the common law crimes of assault and battery.

I.

Petitioner, John W. Robinson, was charged by the Grand Jury for Prince George's County in a five count indictment with the offenses of child abuse, Count One, in violation of Maryland Code (1957, 1996 Repl.Vol., 1998 Supp.) Article 27, § 35C;¹ third degree sexual offense, Count Two, in violation of § 464B; fourth degree sexual offense, Count Three, in violation of § 464C; second degree assault, Count Four, in violation of § 12A; and assault and battery, Count Five, in violation of the Common Law. In the charging document, the State alleged that on or about September 7, 1996 through October 30, 1996, Petitioner committed a sexual offense upon C.W., a seven year old female, and an assault and battery upon her. Petitioner was a good friend of C.W.'s father. The two men routinely watched football games together every Sunday afternoon during autumn at C.W.'s home.

C.W. testified that sometime before her birthday² during the fall of 1996, she had been watching football on a Sunday afternoon with her father and Petitioner when Petitioner "picked me up and carried me to my mother's room and touched my private" by rubbing her on the outside of her clothing. The State attempted to establish with certainty the date of the offense. C.W. could only remember that the incident occurred on a Sunday, before her birthday, while she was watching football. At a bench conference, the State elaborated on the date of the incident:

What we know is according to the indictment, the incident occurred sometime between September 7th of 1996 and October 30th of 1996. But C. can say it certainly happened before her birthday on the 30th of October, and it didn't come out during the testimony, but she has said to me in the past that it came after school. That is why the September 7th date ... and what we do know is that at some point, she told Anthony³ that it had occurred.

At the conclusion of the State's case, Petitioner moved for judgment of acquittal on all counts. His counsel argued the following:

[DEFENSE COUNSEL]: Your Honor, as to Counts 4 and 5 of the indictment, which charges Mr. Robinson with second degree assault, and Count 5, common law assault.

THE COURT: Which is Count 5.

[DEFENSE COUNSEL]: I respectfully submit that considering the fact that—

THE COURT: They're one in the same.

[DEFENSE COUNSEL]: They are duplicitous.⁴

THE COURT: I think we'll rectify that. [State's Attorney], does the State have a desire to not proceed as to Counts 4 and 5 at this point in time? [STATE'S ATTORNEY]: The second degree assault? That's correct, Your Honor. At this time—Very well. The State would enter Count 4 as nolle prosequi.

THE COURT: We're just going forward as to assault and battery a common law offense?

[STATE'S ATTORNEY]: Yes.

THE COURT: Thank you. [Defense counsel], anything else?

[DEFENSE COUNSEL]: Well, having indicated that the State has nol-prossed Count 4, and being left with Count 5—

THE COURT: Do you care to address Counts 2 and 3?

[DEFENSE COUNSEL]: I'll get to that. I am concerned as to the allegations that the evidence has brought out that an alleged battery may have occurred, but we're still without specificity as to what date it occurred. Now, granted the allegation in the indictment covers—correction, September 7th through October 30th, but without that specificity, I don't think that the Court can allow this count to go to the jury, because the nol-prossed Count 4, second degree assault, took effect October 1st. Common law assault was still the rule of law from September 7th through September 30th. Not knowing when the allegations occurred, I think that we can't allow the jury to speculate on that battery count.

THE COURT: Is it fair to say that you never raised the issue of specificity until now?

[DEFENSE COUNSEL]: Yes, Your Honor.

THE COURT: Motion is denied as to Count 5. Okay. I'll hear you as to anything you want to say as to Counts 2 and 3.

[DEFENSE COUNSEL]: I was about to finish as far as not only specificity grounds, but as to sufficiency of the evidence as far as the date is concerned.

THE COURT: Thank you.

[DEFENSE COUNSEL]: ... [W]e would submit on Counts 2 and 3.

The trial court denied the motion for judgment of acquittal as to Counts one, two, three and five. The defense proceeded with its case, calling the defendant and Detective Michael Olds as witnesses. At the close of all of the evidence, the defense again moved for judgment of acquittal on all counts. After hearing argument from the State, the court asked defense counsel, "Do you want to address Counts 2 and 3 and 5 by indicating anything other than what you said already?" Defense counsel responded, "No, Your Honor. We'll submit." The trial judge granted Petitioner's motion for judgment of acquittal on Count one, child abuse, but denied the motion with respect to all remaining counts, thus leaving Counts two, three and five for the jury's consideration. The court instructed the jury that the time of the acts relative to all three counts "concerned between the dates of September 7th, `96 and October 30th, 1996."

The jury returned a verdict of not guilty on the third degree sexual offense and the fourth degree sexual offense. The jury found Petitioner guilty of common law assault and battery. The court sentenced Petitioner to the Division of Correction for a period of ten years, with two years suspended, and five years probation upon his release from incarceration.

Robinson noted a timely appeal to the Court of Special Appeals. The intermediate court affirmed the judgment in an unreported opinion, holding "that common law assault and battery was and remains a cognizable crime in Maryland, except that from and after 1 October 1996 it is designated `second degree assault' unless accompanied by certain aggravating factors elevating the offense to a felony now designated as `first degree assault.'" We granted Robinson's petition for writ of certiorari to consider whether the Court of Special Appeals erred in holding that common law assault and battery was a cognizable crime in Maryland after October 1, 1996.

II.

In 1996, the Maryland General Assembly enacted Article 27, §§ 12, 12A and 12A-1, effective October 1, 1996. 1996 Laws of Maryland, Ch. 632. These statutes provide as follows § 12. Definitions.

(a) In general.—In this subheading the following words have the meanings indicated.

(b) Assault.—Except as otherwise provided in this subheading, "assault" means the offenses of assault, battery, and assault and battery, which terms retain their judicially determined meanings.

(c) Serious physical injury.—"Serious physical injury" means physical injury which:

(1) Creates a substantial risk of death;

(2) Causes serious permanent or serious protracted disfigurement;

(3) Causes serious permanent or serious protracted loss of the function of any bodily member or organ; or

(4) Causes serious permanent or serious protracted impairment of the function of any bodily member or organ.

§ 12A. Second degree assault.

(a) General Prohibition. — A person may not commit an assault.

(b) Violation; penalties.—A person who violates this section is guilty of the misdemeanor of assault in the second degree and on conviction is subject to a fine of not more than $2,500 or imprisonment for not more than 10 years or both.

§ 12A-1. First degree assault.

(a) Serious physical injury; use of a firearm.—(1) A person may not intentionally cause or attempt to cause serious physical injury to another.

(2) A person may not commit an assault with a firearm....

(b) Penalty.—A person who violates this section is guilty of the felony of assault in the first degree and on conviction is subject to imprisonment for not more than 25 years.

Petitioner contends that the 1996 Act abolished the common law crimes of assault and battery.⁵ Petitioner's argument is that the Act accomplished three objectives. It repealed former §§ 12 and 12A of Article 27 that created and contained aggravated forms of assault; it established a two-tiered structure that defines all assaults and batteries as either first or second degree assault; and, it set out a statutory maximum penalty for the offenses.⁶ Petitioner argues that although the enacted statutes did not abolish the common law concept underlying the crimes of assault and battery, the Legislature intended to establish a scheme that accounted for every form of those crimes. The State, on the other hand, argues that the General Assembly did not intend to abolish the common law crimes of assault and battery but rather, the purpose of the 1996 assault statutes was to prescribe a maximum penalty for the crimes of assault and battery and to specifically repeal the common law crimes of mayhem and maiming.

It is a generally accepted rule of law that statutes are not presumed to repeal the common law "further than is expressly declared, and that a statute, made in the affirmative without any negative expressed or implied, does not take away the common law." Lutz v. State, 167 Md. 12, 15, 172 A. 354, 356 (1934) (quot...