Malee v. State

809 A.2d 1, 147 Md. App. 320, 2002 Md. App. LEXIS 173
CourtCourt of Special Appeals of Maryland
DecidedSeptember 27, 2002
DocketNo. 1742
StatusPublished
Cited by4 cases

This text of 809 A.2d 1 (Malee v. State) is published on Counsel Stack Legal Research, covering Court of Special Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Malee v. State, 809 A.2d 1, 147 Md. App. 320, 2002 Md. App. LEXIS 173 (Md. Ct. App. 2002).

Opinion

MOYLAN, Judge.

The appellant, Ricky James Malee, was convicted by a Frederick County jury, presided over by Judge John H. Tisdale, of twenty counts charging a second degree sexual offense, ten counts charging a third degree sexual offense, and one count charging child abuse. With most of the sentences being consecutive to the others, the appellant was sentenced to serve a grand total of 450 years. On this appeal, he raises the two contentions

1. that the indictment did not charge with sufficient specificity and the evidence did not establish guilt with sufficient specificity, and
2. that the sentence of 450 years was “excessive” under the Eighth Amendment.

[323]*323We shall examine separately the distinct subcontentions of 1) the specificity of the pleading and 2) the legal sufficiency of the evidence to support the convictions. They are distinct issues. For our analysis of the pleading issue, moreover, we shall assume the legal sufficiency of the evidence to prove the crimes charged.

The Specificity of the Pleading

During the six-month period covered by the charges, Hilda Smith; her seven-year-old son, Nicholas; and her three-year-old son, Michael, were living at the Lincoln Apartments in Frederick. The appellant was Hilda Smith’s live-in boyfriend on a “nightly” or “every other nightly” basis.

The appellant was convicted on 31 separate charges. One of those was for the continuing act of child abuse. It poses no problem in terms of the specificity of the pleading.

The other 30 convictions fall into two large groups. Twenty of the convictions were for various sexual offenses in the second degree. Ten of the convictions were for various sexual offenses in the third degree. All 20 of the second-degree sexual offenses and all 10 of the third-degree sexual offenses were alleged to have occurred at some time during the six-month period of January 1, 1996 through June 30, 1996.

Why Thirty Charges?

To Avoid Duplicity

Under the teaching of Cooksey v. State, 359 Md. 1, 752 A.2d 606 (2000), the State abandoned any thought of aggregating or consolidating the 30 charges into two charges of continuing offenses, one for all of the second-degree sexual offenses and one for all of the third-degree offenses. Indeed, fearful that the initial indictment in this case may have been duplicitous under Cooksey, the State nolle prossed the original charges and, on January 19, 2001, filed a new indictment in order to be in full compliance with the Cooksey requirements.

In Cooksey, the State erroneously had done what the State initially did in this case. In one count in Cooksey, the State [324]*324had charged the defendant with “a continuing course of conduct” over a one-year period, in which he committed the “sexual act” of cunnilingus with a child. In response to a demand for particulars, the State alleged that the “sexual act” of cunnilingus had occurred “up to fifteen times” during the one-year period. A second count charged a “continuing course of conduct” involving a third-degree sexual offense. The particulars alleged that the “sexual contact” charged in that count occurred “up to fifteen times” during the year-long period.

The opinion of Judge Wilner, 359 Md. at 22-23, 752 A.2d 606, stated emphatically that each separate “sexual act” under § 464A and each separate “sexual contact” under § 464B had to be charged separately.

There is no rational way to treat a second degree sexual offense, as defined in § 464A, or a third degree sexual offense, as defined in § 464B,- as a continuing offense. Section 16J¡,A defines a second degree sexual offense as engaging in “a sexual act” with another person under any of the three circumstances stated in the section. Section I6J+B defines a third degree sexual offense as engaging either in “sexual contact” under the circumstances stated in the section or “a sexual act” or vaginal intercourse with a person 14 or 15 if the perpetrator is at least 21. “Sexual contact” is defined in § 461(f) as “the intentional touching” of the victim’s anal or genital areas or other intimate parts for certain purposes. Those offenses are committed when the proscribed act occurs. If they are committed on more than one occasion, other than as part of an ongoing single incident, they cannot be regarded as having been committed but once. We thus aline ourselves with the Rhode Island, New Hampshire, and New York courts and hold that a single count that charges multiple incidents of those offenses, committed other than in the course of a single criminal episode of relatively brief temporal duration, cannot be sustained as non-duplicitous on the theory of a [325]*325continuing offense. Counts 1 and 2 of the indictment were duplicitous.

(Emphasis supplied).

Compliance with Cooksey accounts for the fact that there were 30 separate charges. Had the State alleged or sought to prove 1) various different types of “sexual act” under a single second-degree sexual offense charge or 2) various different types of “sexual contact” under a single third-degree sexual offense charge, that would have been duplicitous. Had the State alleged or sought to prove multiple instances of a single type of “sexual act” or multiple instances of a single type of “sexual contact” in a single charge, that also would have been duplicitous. The number of the offenses charged in this case is not a problem. It is, indeed, the solution to a problem.

Specificity as to the Type of Offense

All of the charges spelled out the particular sexual offense alleged with complete specificity. The crime of a second-degree sexual offense, Art. 27, § 464A, covers a number of different “sexual acts.” Of the 20 counts charging a sexual offense in the second degree, six charged the appellant with anal intercourse upon Nicholas, four charged him with performing fellatio on Nicholas, four charged him with having Nicholas perform fellatio on him, one charged him with inserting a foreign object into Nicholas’s anus, three charged him with causing Nicholas to have anal intercourse with Michael, and two charged him with causing Nicholas to perform fellatio on Michael.

The crime of a third-degree sexual offense, § 464B, covers a wide range of “sexual contact.” Of the ten counts charging the appellant with a sexual offense in the third degree, two counts charged him with touching Nicholas’s penis, four counts charged him with causing Nicholas to touch appellant’s penis, two counts charged him with causing Nicholas to touch Michael’s penis, and two counts charged him with causing Michael to touch Nicholas’s penis. In terms of spell[326]*326ing out the specific type of “sexual act” or “sexual contact” being charged, we see no problem with any of the 30 counts.

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Bluebook (online)
809 A.2d 1, 147 Md. App. 320, 2002 Md. App. LEXIS 173, Counsel Stack Legal Research, https://law.counselstack.com/opinion/malee-v-state-mdctspecapp-2002.