The Maryland Court of Appeals declined an opportunity to correct an anomaly in Maryland law that requires a shorter maximum sentence for certain sexual assaults than for identical conduct that lacks a sexual component. In State v. Lancaster, 332 Md. 385 (1993), the court previously held that when a second degree assault conviction (which carries a sentence of up to 10 years) is constitutionally required to be merged into a fourth-degree sexual offense conviction (which carries a maximum sentence of one year), the statutory penalty provisions must also be merged. As Maryland law allows sentencing only for the offense that requires proof of the additional element (here, sexual touching), a one-year sentence is the maximum that can be imposed on a defendant whose lesser included assault conviction is merged into a fourth-degree sex offense. Id. at 392. In State v. Frazier (No. 45, September Term 2019) (July 14, 2020), the court unequivocally reaffirmed Lancaster and left it to the Legislature, prosecutors, and trial judges to deal with the paradox.
Frazier was accused of assaulting a woman with whom he was in a relationship. Angered that she had received a text from another man, Frazier allegedly pulled her hair, slapped her, choked her, and locked her in a room where he forced her to perform oral sex. Later that night, Frazier again allegedly slapped the victim and pulled her hair before raping her. Frazier was charged with rape, false imprisonment, second-degree sexual offense, fourth-degree sexual offense, and second-degree assault. A jury convicted Frazier only of the assault and the fourth-degree sex offense. Viewing the assault (slapping and choking) as separate from forcing his victim to perform a sexual act, the trial judge sentenced Frazier to 10 years on the assault, and to one year in jail for the sex offense. Id., Slip Op. at 1-2; 6-7.
The Court of Special Appeals vacated the sentence, agreeing with Frazier that under Lancaster, the offenses and penalties merged so the maximum allowable sentence was one year. Id. at 9. In a concurring opinion, Chief Judge Fader urged the Court of Appeals to revisit Lancaster because “‘by adding a sexual component to his assault of the victim, [Frazier] reduced 10-fold the maximum penalty for that assault’ and that is [not] the result the General Assembly could have intended…..” Id. (citations omitted). A unanimous Court of Appeals disagreed.
The court first discussed merger, “the common law principle that derives from the protections afforded by the Double Jeopardy Clause” of the Fifth Amendment. Id. at 11. As it pertained to Frazier, the Double Jeopardy Clause protects an accused from multiple punishments for the same offense. Id. (citations omitted). Thus, merger of offenses is required and only one sentence may be imposed “when: (1) the convictions are based on the same act or acts, and (2) under the required evidence test, the two offenses are deemed to be the same, or one offense is deemed to be the lesser included offense of the other.” Id. (citations omitted).
The court found that the second requirement for merger was readily established. Common law battery–the second-degree assault charge at issue in Frazier–is an offensive or harmful contact with another person. Id. at 15. A fourth-degree sexual assault requires precisely these elements, plus an additional requirement that the contact be “sexual,” i.e., that the contact be with an intimate area of the victim or actor. Id. As a result, “the fourth-degree sexual offense must merge with second-degree assault under Maryland merger law because the elements of second-degree assault are identical to those required for fourth-degree sexual offense, with the exception of one element—that the assaultive conduct be sexual in nature.” Id. at 17.
As to whether the respective convictions were based on “the same act or acts,” both appellate courts expressed concern about the factual ambiguity of the jury’s verdict. They concluded that the record reflected two types of assaultive behavior: (i) choking and slapping, and (ii) forcible sex. The Court of Appeals agreed with the intermediate appellate court that “[t]he jury could have disbelieved the occurrence of the neck grabbing and slapping or could have believed that both the rape and forced fellatio were the assaultive conduct. The factual basis for the jury’s verdict is not readily apparent from the record before us and therefore creates an unreasonable ambiguity.” Id. at 13 (citation omitted). Settled law, both courts determined, requires that “in situations where there is factual ambiguity regarding whether the convictions arose out of the same act or transaction, ‘that ambiguity is resolved in favor of the defendant.’” Id. at 12 (quoting Nicholas v. State, 426 Md. 385, 400 (2012). Frazier’s assault, therefore, merged into the fourth-degree sex offense.
The court was left to decide whether it would reconsider its Lancaster holding that when these offenses are merged, the penalties must also merge so that a sentence may be imposed only for the offense having the additional element (even where, as here, it carries a lesser sanction). The court acknowledged that the U.S. Supreme Court has never so held, that other jurisdictions have taken a different approach, and that the Double Jeopardy Clause “does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.” Slip Op. at 11 (quoting Missouri v. Hunter, 459 U.S. 359, 366 (1983)). The court went on to say that the Maryland Legislature could have provided a harsher punishment than the one year it allowed for a fourth-degree sex offense, but it chose not to. Slip Op. at 20.
The court found that the Legislature apparently wanted some sexual batteries to be punished less severely than simple assaults. It observed that the Legislature amended parts of the fourth-degree sexual offense statute after Lancaster, but elected not to address the penalty provisions. “[I]f the General Assembly thought that a greater punishment for fourth degree sexual offense was appropriate, it would have increased the penalty or allowed for duplicitous punishment.” Id. at 22. “This, however, is an issue that must be addressed by the General Assembly.” Id. at 26.
The court offered some advice to prosecutors and trial judges as to how they might avoid the “unintended consequences” of Lancaster in the absence of a legislative fix. Id. at 25. Had the State charged Frazier only with assault and not a fourth-degree sexual offense, for example, a 10-year sentence for the assault would have been available to the sentencing judge. Likewise, had the jury instructions specified “that separate acts must form the basis for each conviction, [with] an explanation of which acts satisfied the elements for each crime,” there would have been no ambiguity in the verdict and merger would not have been required. Id. The Court thus concluded, “[w]e see no reason to overturn precedent, particularly where the problem … may have been avoided.” Id. at 26. The states’ prosecutors, its trial courts, and the Legislature have been duly warned.