State v. Lancaster

• Citation: 332 Md. 385,631 A.2d 453
• Decision Date: 01 September 1991
• Docket Number: No. 14,14
• Parties: STATE of Maryland v. Harry Whinna LANCASTER. ,
• Court: Court of Appeals of Maryland

Page 385

332 Md. 385

631 A.2d 453

STATE of Maryland v. Harry Whinna LANCASTER.

No. 14, Sept. Term, 1991.

Court of Appeals of Maryland.

Oct. 7, 1993.

M. Jennifer Landis, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, for petitioner.

John L. Kopolow, Asst. Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for respondent.

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, McAULIFFE, CHASANOW, KARWACKI and ROBERT M. BELL, JJ.

ELDRIDGE, Judge.

The defendant in this criminal case was found guilty of a fourth degree sexual offense under Maryland Code (1957, 1992 Repl.Vol.), Art. 27, § 464C(a)(2), which prohibits, inter alia, engaging in fellatio "with another person who is 14 or 15 years of age and the person performing the sexual act is four or more years older than the other person." ¹ Based upon the same acts of fellatio, the defendant was also found guilty of committing an oral sex act in violation of Art. 27, § 554, which makes it unlawful, inter alia, for a person to take "into his or her mouth the sexual organ of any other person...." ² The defendant received separate sentences on each of the guilty verdicts. The Court of Special Appeals, however, held that the § 554 offense charged in this case contained no elements which were not also contained in the § 464C(a)(2) offense and that, therefore, the § 554 offense was an included offense which, for sentencing purposes, merged into the § 464C(a)(2) offense. Consequently, the Court of Special Appeals vacated the sentence imposed for the violation of § 554. We granted the State's petition for a writ of certiorari to consider the State's argument that the § 554 offense charged in this case has a distinct element not found in the § 464C(a)(2) offense and that, for this reason, the § 554 offense is not included within the § 464C(a)(2) offense and therefore does not under Maryland law merge into the § 464C(a)(2) offense.

I.

We have often pointed out that " '[u]nder settled Maryland common law, the usual rule for deciding whether one criminal offense merges into another or whether one is a lesser included offense of the other, ... when both offenses are based on the same act or acts, is the so-called "required evidence test." ' " In re Montrail M., 325 Md. 527, 531, 601 A.2d 1102, 1104 (1992), quoting Williams v. State, 323 Md. 312, 316, 593 A.2d 671, 673 (1991). See Eldridge v. State, 329 Md. 307, 319, 619 A.2d 531, 537 (1993); Biggus v. State, 323 Md. 339, 350, 593 A.2d 1060, 1065 (1991); Snowden v. State, 321 Md. 612, 616, 583 A.2d 1056, 1059 (1991), and cases there cited.

The required evidence test " 'focuses upon the elements of each offense; if all of the elements of one offense are included in the other offense, so that only the latter offense contains a distinct element or distinct elements, the former merges into the latter.' " Snowden v. State, supra, 321 Md. at 617, 583 A.2d at 1059, quoting State v. Jenkins, 307 Md. 501, 517, 515 A.2d 465, 473 (1986). Stated another way, the " 'required evidence is that which is minimally necessary to secure a conviction for each ... offense. If each offense requires proof of a fact which the other does not, or in other words, if each offense contains an element which the other does not,' " there is no merger under the required evidence test even though both offenses are based upon the same act or acts. " 'But where only one offense requires proof of an additional fact, so that all elements of one offense are present in the other,' " and where both "offenses are based on the same act or acts, ... merger follows...." Williams v. State, supra, 323 Md. at 317-318, 593 A.2d at 673, quoting in part Thomas v. State, 277 Md. 257, 267, 353 A.2d 240, 246-247 (1976).

When there is a merger under the required evidence test, separate sentences are normally precluded. Instead, a sentence may be imposed only for the offense having the additional element or elements. See, e.g., In re Montrail M., supra, 325 Md. at 534, 601 A.2d at 1105; Biggus v. State, supra, 323 Md. at 350-351, 593 A.2d at 1065-1066; Snowden v. State, supra, 321 Md. at 617-619, 583 A.2d at 1059; Middleton v. State, 318 Md. 749, 760-761, 569 A.2d 1276, 1281 (1990); State v. Jenkins, supra, 307 Md. at 521, 515 A.2d at 473; Johnson v. State, 283 Md. 196, 204, 388 A.2d 926, 930 (1978); Flannigan v. State, 232 Md. 13, 19, 191 A.2d 591, 594 (1963).

When applying the required evidence test to multi-purpose offenses, i.e., offenses having alternative elements, a court must "examin[e] the alternative elements relevant to the case at issue." Snowden v. State, supra, 321 Md. at 618, 583 A.2d at 1059. ³ See State v. Ferrell, 313 Md. 291, 298, 545 A.2d 653, 656 (1988); Nightingale v. State, 312 Md. 699, 705, 542 A.2d 373, 376 (1988); Newton v. State, 280 Md. 260, 268-273, 373 A.2d 262, 266-269 (1977); Thomas v. State, supra, 277 Md. at 268-269, 353 A.2d at 247-248. See also United States v. Dixon, 509 U.S. 688, ----, 113 S.Ct. 2849, 2857, 125 L.Ed.2d 556, 569 (1993); Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977).

The required evidence test has also sometimes been referred to as the "same evidence" test, ⁴ the "elements" test, ⁵ the "same elements" test, ⁶ and the "Blockburger" test. ⁷ In resolving questions of merger, the required evidence test is applicable to both common law offenses and statutory offenses. Williams v. State, supra, 323 Md. at 317, 593 A.2d at 673; Snowden v. State, supra, 321 Md. at 617, 583 A.2d at 1059. See also State v. Ferrell, supra, 313 Md. at 297-298, 545 A.2d at 656. ⁸ Although the required evidence test is the normal standard under Maryland law for determining merger of offenses, it is not the exclusive standard. Nevertheless, under our cases, it is the "threshold" test. Williams v. State, supra, 323 Md. at 320, 593 A.2d at 675. We have consistently approached merger issues by first applying the required evidence test; if that test is met, "merger follows as a matter of course." In re Montrail M., supra, 325 Md. at 533, 601 A.2d at 1104. It is only when there is no merger under the required evidence test that other criteria are considered to determine whether the offenses should merge. ⁹ See generally, e.g., Biggus v. State, supra, 323 Md. at 356, 593 A.2d at 1068-1069; Williams v. State, supra, 323 Md. at 318, 320-321, 593 A.2d at 675; Monoker v. State, 321 Md. 214, 219-224, 582 A.2d 525, 527-529 (1990); White v. State, 318 Md. 740, 742-748, 569 A.2d 1271, 1273-1275 (1990); Nightingale v. State, supra, 312 Md. at 702, 542 A.2d at 374; Hunt v. State, 312 Md. 494, 510, 540 A.2d 1125, 1132-1133 (1988); State v. Jenkins, supra, 307 Md. at 517-521, 515 A.2d at 473-475.

The only exception to the principle that merger follows as a matter of course if one offense is included within the other under the required evidence test, is where, under some circumstances, the General Assembly has specifically or expressly authorized multiple punishments. Thus, "when specifically authorized by the legislature, cumulative sentences ... may under some circumstances be imposed," Randall Book Corp. v. State, 316 Md. 315, 323, 558 A.2d 715, 719 (1989), emphasis added. See, e.g., Whack v. State, 288 Md. 137, 143- 150, 416 A.2d 265, 268-271 (1980), appeal dismissed and cert. denied, 450 U.S. 990, 101 S.Ct. 1688, 68 L.Ed.2d 189 (1981); Newton v. State, supra, 280 Md. at 274 n. 4, 373 A.2d at 269 n. 4.

II.

Turning to the facts of this case, the defendant Harry Whinna Lancaster was convicted by a jury in the Circuit Court for Allegany County of a fourth degree sexual offense under Art. 27, § 464C(a)(2), and of an oral sex act proscribed by Art. 27, § 554. It is undisputed that the same act or acts of fellatio formed the basis for both guilty verdicts.

The pertinent State's evidence upon which the two guilty verdicts were based disclosed the following. Louis W., a fifteen year old boy, met the defendant in July 1988. The defendant befriended Louis by taking the boy skating and out to eat. Eventually the defendant brought Louis to his home where, on several occasions from July 1988 to January 1989, the defendant performed fellatio on Louis. According to Louis's testimony at trial, early in their relationship the defendant warned Louis not to tell anyone about the instances of oral sex.

For the § 464C(a)(2) fourth degree sexual offense, the circuit court imposed the maximum penalty, one year imprisonment and a fine of $1,000. For the § 554 offense, the circuit court again imposed the maximum penalty, ten years imprisonment and a fine of $1,000. Five years of the prison term were suspended in favor of five years probation. The terms of imprisonment were to run concurrently.

Lancaster took an appeal to the Court of Special Appeals, arguing, inter alia, that, under the required evidence test, the § 554 offense is an included offense of and merges into the § 464C(a)(2) fourth degree sexual offense. Therefore, Lancaster argued, the ten year sentence imposed for the § 554 offense should be vacated. See Lancaster v. State, 86 Md.App. 74, 80, 585 A.2d 274, 277 (1991).

The State, agreeing that the required evidence test furnished the standard for determining the merger issue, argued in the Court of Special Appeals that the offenses did not merge under the required evidence test because each offense has distinct elements. (State's brief in the Court of Special Appeals at 3-5). According to the State, the § 554 crime is not an included offense because, as § 554 was construed by this Court in Schochet v. State, 320 Md. 714, 580 A.2d 176 (1990), the offense requires proof of facts which need not be proven to establish a fourth degree sexual offense under § 464C(a)(2). Specifically, the State contended that because § 554 does not encompass heterosexual non-commercial acts in private between consenting adults, it is incumbent upon the State, in order to obtain a conviction under § 554, to...