Tapscott v. State, No. 135

• Court: Court of Appeals of Maryland
• Writing for the Court: MURPHY
• Citation: 684 A.2d 439,343 Md. 650
• Parties: Robert Allan TAPSCOTT v. STATE of Maryland. ,
• Decision Date: 01 September 1995
• Docket Number: No. 135

Page 650

343 Md. 650 684 A.2d 439 Robert Allan TAPSCOTT
v.
STATE of Maryland. No. 135, Sept. Term, 1995. Court of Appeals of Maryland. Nov. 4, 1996.

[684 A.2d 440]

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Karl G. Feissner (Robyn L. Behrman, Feissner & Slatkin, on brief), Burtonsville, for petitioner.

Diane E. Keller, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, on brief), Baltimore, for Respondent.

Argued before MURPHY, ^* C.J., and ELDRIDGE, RODOWSKY, CHASANOW, KARWACKI, BELL and RAKER, JJ.

MURPHY, Chief Judge.

In this case, we address whether half-blood relationships are included within Maryland's prohibition against incest, codified as Maryland Code (1957, 1996 Repl.Vol.), Article 27, § 335, which provides:

Every person who shall knowingly have carnal knowledge of another person, being within the degrees of consanguinity within which marriages are prohibited by law in this State, shall be deemed guilty of a felony....

I A

Maryland Code (1984, 1991 Repl.Vol.) § 2-202 of the Family Law Article lists the specific relationships within which marriage is prohibited. Section 202(c)(1)(xii) bars a man from marrying his sister's daughter, and § 202(c)(2)(iv) declares that a woman may not marry her mother's brother. Thus,

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Article 27, § 335 prohibits carnal relations between a man and his niece. Section 2-202 does not state whether it applies to both whole-blood and half-blood relationships. B

On May 13, 1994, Robert Allan Tapscott was convicted of two counts of incest following a jury trial before the Circuit Court for Prince George's County (Clark, J.). During the trial, the State introduced evidence to show that Tapscott engaged in intercourse with "K.C." on two occasions. The State also introduced evidence demonstrating that Tapscott and K.C.'s mother had the same father and were therefore half-blood siblings. Thus, according to the State's evidence, K.C. was Tapscott's half-blood niece.

Following his conviction, Tapscott appealed to the Court of Special Appeals, raising various arguments. After the Court of Special Appeals affirmed the incest convictions--Tapscott v. State, 106 Md.App. 109, 664 A.2d 42 (1995)--Tapscott petitioned this Court for a writ of certiorari, which we granted.

[684 A.2d 441] C

Tapscott argues that § 2-202 of the Family Law Article does not prohibit marriage between half-blood relatives. He asserts that because § 2-202 does not specifically mention half-blood relatives, this Court cannot extend § 2-202's definition to include such relationships. Tapscott contends that to do so would violate the principle of strict construction of penal statutes. Finally, Tapscott claims that the legislature's specific reference to half-blood relations in Maryland Code (1974, 1991 Repl.Vol.) § 1-204 of the Estates and Trusts Article demonstrates that the legislature has been aware of half-blood relationships and would have expressly listed them in Family Law § 2-202 if it had intended to include them. The State, on the other hand, contends that § 2-202 of the Family Law Article prohibits marriage between half-blood relations to the same extent as whole-blood relations.

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II

A

As Tapscott correctly notes, criminal statutes must be strictly construed in favor of the defendant, Jones v. State, 304 Md. 216, 220, 498 A.2d 622 (1985), and "courts will not extend the punishment to cases not plainly within the language used." State v. Archer, 73 Md. 44, 20 A. 172 (1890), quoted in State v. Fabritz, 276 Md. 416, 422, 348 A.2d 275 (1975), cert. denied, 425 U.S. 942, 96 S.Ct. 1680, 48 L.Ed.2d 185 (1976). This rule of construction has been referred to as the "rule of lenity." See State v. Purcell, 342 Md. 214, 229, 674 A.2d 936 (1996).

Relying on the rule of lenity, Tapscott argues that because half-blood relationships have not been specifically included within the list of prohibited relationships in § 2-202, we must construe § 2-202 to exclude such relationships. To support his contention, Tapscott cites State v. Craig, 254 Kan. 575, 867 P.2d 1013 (1994), People v. Baker, 69 Cal.2d 44, 69 Cal.Rptr. 595, 442 P.2d 675, 676 (1968), and State v. Bartley, 304 Mo. 58, 263 S.W. 95, 95 (1924). In each of these cases, courts held that a strict construction of the relevant incest statutes required the exclusion of half-blood relationships from the statutes' prohibitions. In reaching this conclusion, however, the courts expressly relied on the fact that the relevant statutes explicitly prohibited relations between half-blood brothers and sisters but made no reference to any other half-blood relationships. See Craig, supra, 867 P.2d at 1015 (statute forbad marriage or sexual relations between a person and his "child, grandchild of any degree, brother, sister, half-brother, half-sister, uncle, aunt, nephew, or niece"); Baker, supra, 69 Cal.Rptr. at 596, 442 P.2d at 676 (statute forbad marriage between "parents and children, ancestors and descendants of every degree, and between brothers and sisters of the half as well as the whole blood, and between uncles and nieces or aunts and nephews"); Bartley, supra, 263 S.W. at 95 (statute defined incest as sexual relations between "grandparents and grandchildren of every degree, brother and sisters of the half, as well as of the whole, blood, uncles and nieces,

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aunts and nephews"). In each case, the courts inferred that the specific inclusion of some half-blood relationships was intended to exclude those half-blood relationships not mentioned. See Craig, supra, 867 P.2d at 1016; Baker, supra, 69 Cal.Rptr. at 596, 442 P.2d at 676 (concluding that "the Legislature by expressly including relationships between brothers and sisters of the half blood and not so specifying as to more distant relatives has evinced the intention to exclude such persons from the prohibitions of the statute"); Bartley, supra, 263 S.W. at 96 (adopting the view that "[w]hen the Legislature mentioned brothers and sisters of the half blood, it necessarily excluded all other relationships of the half blood").

In contrast, courts interpreting statutes with no specific mention of half-blood relationships have included such relationships within the incest prohibition. ¹ See Singh v. [684 A.2d 442] Singh, 213 Conn. 637, 569 A.2d 1112, 1121 (1990) (according common meaning to terms "uncle" and "niece" and determining that half-blood relationships fall within incest statute); State v. Sharon H., 429 A.2d 1321, 1326-28 (Del.Super.1981) (interpreting statute that prohibited marriage between a person and "his or her ancestor, descendant, brother, sister, uncle, aunt, niece, nephew or first cousin" to include half-blood relatives);

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State v. Skinner, 132 Conn. 163, 43 A.2d 76, 77 (1945), overruled on other grounds, State v. Tillman, 152 Conn. 15, 202 A.2d 494 (1964) (holding that "the word sister, as used in the [incest] statute, applies to and includes a half sister"); State v. Lamb, 209 Iowa 132, 227 N.W. 830, 831-32 (1929) (finding that "sister" includes both whole-blood and half-blood relations within the meaning of the incest statute); Commonwealth v. Ashey, 248 Mass. 259, 142 N.E. 788 (1924) (convicting a half-blood uncle and niece of violating statutes providing that "no man shall marry his ... sister's daughter" and "no woman shall marry her ... mother's brother"); State v. Smith, 101 S.C. 293, 85 S.E. 958, 959 (1915) (noting that "the fact that the relationship in this case is only of the half blood ... is of no consequence; for ... the words used in the statute must be taken in their ordinary meaning, and therefore include relations of the half blood"); Burdue v. Commonwealth, 144 Ky. 428, 138 S.W. 296, 297 (1911) (including a half-blood sister within the prohibitions of a statute making it a crime for a person to "carnally know his ... sister," and noting that no distinction is made between full blood and half blood sisters for purposes of inheritance); Shelley v. State, 95 Tenn. 152, 31 S.W. 492 (1895) (including half-blood...