246 A.3d 764
Md. Ct. Spec. App.2021Background
- On-duty Sgt. Marlon Koushall responded to a call for backup outside a Baltimore strip club and, within seconds of approaching, struck off-duty Sgt. Henrietta Middleton in the face and then took her to the ground by the hair.
- Security-camera footage and multiple eyewitnesses corroborated Middleton’s account that she had not physically contacted Koushall and that he struck her while her hands were down.
- Koushall asserted law-enforcement justification, testifying that Middleton displayed active aggression and that he gave a verbal command to "back up" before striking; an expert for the defense testified the force was permissible under Department guidelines.
- The bench trial judge found Koushall’s perception of threat unreasonable, concluded his use of force was disproportionate, and convicted him of second-degree assault (battery) and misconduct in office.
- The court imposed concurrent suspended prison terms (time served), and Koushall appealed, arguing (1) insufficient evidence—principally that his conduct was justified—and (2) that the two convictions should merge for sentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for second-degree assault (battery) | State: evidence (witnesses + video) shows unjustified offensive contact | Koushall: strike was justified under law-enforcement justification; expert opinion supported his belief of active aggression | Affirmed: viewing evidence for the State, a reasonable factfinder could conclude force was not objectively reasonable and therefore not justified |
| Sufficiency of evidence for misconduct in office | State: assault constituted corrupt behavior by a public officer under color of office | Koushall: misconduct conviction depends on defective assault conviction so must fail | Affirmed: assault supported the corrupt-behavior element; other misconduct elements undisputed |
| Merger under the required-evidence (same-elements) test | Koushall: misconduct predicated on assault should merge | State: offenses have distinct elements (misconduct requires public-official element; assault requires offensive touching) | Affirmed: no merger—each offense contains an element the other does not |
| Merger based on fundamental fairness / preservation | Koushall: separate punishments for overlapping conduct unfair | State: argument not raised at sentencing (unpreserved) and fundamental-fairness merger claims are not reviewable as illegal sentences | Affirmed: claim not preserved and not reviewable on appeal |
Key Cases Cited
- Nicolas v. State, 426 Md. 385 (elements of battery-type second-degree assault)
- State v. Wilson, 471 Md. 136 (description of the required-evidence / same-elements merger test)
- Sewell v. State, 239 Md. App. 571 (elements of misconduct in office and categories of corrupt behavior)
- Tabbs v. State, 10 Md. App. 177 (police-officer misconduct conviction predicated on another crime does not necessarily merge)
- State v. Pagotto, 361 Md. 528 (reasonable-police-officer standard for evaluating on-duty use of force)