Walker v. State

Decision Date08 March 2001
Docket NumberNo. 51,51
Citation363 Md. 253,768 A.2d 631
PartiesWilliam WALKER v. STATE of Maryland.
CourtMaryland Court of Appeals

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

Leigh S. Halstad, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. of Maryland, on brief), Baltimore, for appellee.

Argued before BELL, C.J., and ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL and LAWRENCE F. RODOWSKY, (retired, specially assigned), JJ.

LAWRENCE F. RODOWSKY, Judge, retired, specially assigned.

Maryland Code (1957, 1996 Repl.Vol.), Article 27, § 464B in relevant part provides:

"(a) A person is guilty of a sexual offense in the third degree if the person engages in:

....

"(5) Vaginal intercourse with another person who is 14 or 15 years of age and the person performing the act is at least 21 years of age."

In Garnett v. State, 332 Md. 571, 632 A.2d 797 (1993), we held that the second degree rape statute, § 463(a)(3) (victim under fourteen years of age and defendant at least four years older), did not recognize a reasonable mistake of age defense.1 In Owens v. State, 352 Md. 663, 724 A.2d 43, cert. denied, 527 U.S. 1012, 119 S.Ct. 2354, 144 L.Ed.2d 250 (1999), we held that § 463(a)(3) did not violate the right to due process of law under the federal or Maryland constitutions. We granted certiorari in the instant matter, prior to its consideration by the Court of Special Appeals, in order to determine whether the third degree sexual offense proscribed by § 464B(a)(5) is distinguishable, with respect to a reasonable mistake of age defense, from § 463(a)(3). As explained below, we conclude that § 464B(a)(5) is not distinguishable as to that putative defense.

The petitioner, William Walker (Walker), was charged in the Circuit Court for Baltimore County with violating § 464B(a)(5). The case was tried non-jury on an agreed statement of facts presented by the State, as follows:

"It [is] agreed between the State and the Defense that on September 16, 1999, at approximately twelve in the afternoon, Officer Brennan of the Baltimore County Police Department was dispatched to 4519 Old Court Road as a result of a rape report that had been called in by Detective Fox of Family Crimes. At that time he spoke with the victim, who was 15-year-old Carla Peterkin. Her date of birth was February 27, 1984. Her father was also present, Mr. Craig Peterkin.
"They both advised the officer that the victim, Carla, had run away from home, was brought back September 16th by Detective Fox. During this time the Defendant had been living with 29-year-old William Walker, whose date of birth is September 15, 1970. They had been living at Deer Lodge Court in Baltimore County.
"At that time the victim stated she had [consensual] sexual intercourse with the Defendant approximately seventy-five times. She also believed that she was pregnant and the Defendant was the father of her child.
"The Defendant was then interviewed and read his rights pursuant to Miranda. He did agree to speak with the officer.
"He advised he had intercourse with the victim approximately seventy-five times, he did not know she was 15. He advised that she told him she was 19.
"And I did speak with the victim and they did indicate that was true.
"She also then—later when she was questioned about it, she said her real age was 17. He did admit that if she was pregnant, he was the father. And the victim worked at the time at Weis supermarket. Her job application was fraudulent. It stated that she was 17 years old.
"The Defendant did not see the job application, however he knows it [is] the policy of Weis to hire no one under 17. That would be the agreed statement of facts."

Without objection defense counsel added that Ms. Peterkin and Walker met while both were employed at Weis Market.

Walker then moved for a judgment of acquittal based on reading into the statute, as a matter of statutory construction, a defense of reasonable mistake as to the victim's age. Alternatively, the defense argued that recognition of the defense was required under the due process clause of the fifth and fourteenth amendments to the Constitution of the United States and under Articles 20 and 24 of the Maryland Declaration of Rights. Walker submitted that Garnett, 332 Md. 571,632 A.2d 797, was distinguishable because the statute there involved dealt with victims age thirteen and younger.

The circuit court denied the defendant's motion, concluding that the defense was not available but stating that "perhaps it should be, especially in situations such as this." The court found the defendant "technically" guilty of a third degree sexual offense, but did not require him to register as a sex offender. Walker was sentenced to six months, service of the sentence was suspended, and Walker was placed on unsupervised probation for one year. This appeal followed.

I

Walker's statutory construction argument faces the same obstacle that the defendant in Garnett was unable to overcome. There this Court fully recognized that criminal statutes containing no express mens rea element, other than certain regulations "respond[ing] to the demands of public health and welfare," ordinarily are not construed to impose "strict" criminal liability. Garnett, 332 Md. at 578, 632 A.2d at 800-01. Nevertheless, the legislative history of § 463(a)(3), the statutory rape enactment involved in Garnett, precluded reading into that statute a reasonable mistake of age defense.

The statute that was involved in Garnett was enacted by Chapter 573 of the Acts of 1976. As introduced by Senate Bill 358, statutory rape contained no express scienter requirement. The bill was amended in the Senate Judicial Proceedings Committee to provide that if a person engages in a "sexual act," which by definition in that version of the bill included vaginal intercourse, with a person "under 14 years of age which age the person performing the sexual act knows or should know, and the person performing the sexual act is 4 or more years older than the other person," the crime was a sexual offense in the second degree punishable by up to twenty years imprisonment. 1976 Maryland Laws ch. 573 at 1532-33. Thereafter further amendments were made to Senate Bill 358 including removal of vaginal intercourse from the definition of "sexual act," the addition of the crimes of rape in the first and second degrees, and placing statutory rape within the definition of rape in the first degree, carrying up to a life sentence. See Md.Code (1957, 1976 Cum.Supp.), Art. 27, § 462(a)(2). Statutory rape was reduced to second degree rape, carrying a maximum sentence of twenty years, by Chapter 292 of the Acts of 1977.

Significant in Garnett was that, before final enactment in 1976, the General Assembly deleted the proposed requirement that the defendant "knows or should know" that the victim was under the age of fourteen years. We concluded that we could not read back into § 463(a)(3) the defense of a reasonable but mistaken belief, based on appearances or representations, that the victim was of an age at which consent validly could be given. Garnett, 332 Md. at 587, 632 A.2d at 804-05.

Section 464B(a)(5), with which we are concerned in the instant matter, similarly has its modern origins in Chapter 573 of the Acts of 1976. Historically, § 464B(a)(5) traces to the carnal knowledge statute enacted by Chapter 218 of the Acts of 1898. That statute was repealed in 1976 by Chapter 573. From 1898 to 1976 the carnal knowledge statute in relevant part read:

"If any person shall carnally know any female not his wife, between the ages of fourteen and sixteen years, such carnal knowledge shall be deemed a misdemeanor and the offender ... shall be punished by imprisonment ... for a term not exceeding two years, or be fined in a sum not exceeding five hundred dollars, or [both;] and provided further, that this section shall not apply to male persons under the age of eighteen years."

Maryland Code (1957, 1971 Repl.Vol.), Art. 27, § 464. Under the carnal knowledge statute, the victim was legally incapable of consenting to the act. Foxwell v. State, 146 Md. 90, 92, 125 A. 893, 894 (1924). We have not been directed to, nor has our research disclosed, any Maryland case or commentary directly addressing whether a reasonable mistake of age was defensive to carnal knowledge.

The introductory version of Senate Bill 358 of the 1976 General Assembly Session would have decriminalized carnal knowledge. The amendments by the Judicial Proceedings Committee restored it. The offense was made a part of a new section, creating a fourth degree sex offense, a misdemeanor punishable by imprisonment for up to one year. As then proposed, that section read:

"(a) ... A person is guilty of a sexual offense in the fourth degree if the person engages:
"(1) In sexual contact with another person against the will and without the consent of the other person; or
"(2) In a sexual act [including vaginal intercourse] with another person who is 14 or 15 years of age which age the person performing the sexual act knows or should know and the person performing the sexual act is 4 or more years older than the other person."

(Emphasis added).

Further amendments before final passage removed vaginal intercourse from the definition of "sexual act," added as a fourth degree sexual offense vaginal intercourse with a fourteen or fifteen year old, and deleted the requirement that the defendant "knows or should know" the age of the victim.

Then codified as Md.Code (1957, 1976 Repl.Vol., 1976 Cum.Supp.), Article 27, § 464C, the statute read:

"(a) What constitutes.—A person is guilty of a sexual offense in the fourth degree if the person engages:
"(1) In sexual contact with another person against the will and without the consent of the other person; or
"(2) In a sexual act with another person who is 15 years of age and the person performing the sexual act is four or more
...

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