*1 institutional untruthfulness, needs Ms. finding Breck’s not a intended punish decision Ms. Breck her acts already a separate process. addressed on a reason- Based management motive, able punitive was not a action. OF THE JUDGMENT COURT OF SPECIAL APPEALS AFFIRMED; COSTS TO PAID BE BY PETITIONER.
156A.3d 873 Maryland STATE of Douglas BEY II Ford Term, Sept. No. Appeals
Court of of Maryland. March *4 (Brian E. Pritzlaff, Attorney General Assistant Page Sarah Baltimore, MD), on Maryland of of Frosh, General Attorney brief, petitioner. for
259 (Paul Simmonsen, Rachel Assistant B. Public Defender De- Wolfe, Maryland Baltimore, MD), Public Defender of of on brief, for respondent.
Barbera, J., Greene, Adkins, McDonald, Watts, Hotten, C Getty, JJ.
Hotten, J.
Respondent, II, Douglas Bey jury Ford was convicted counts, on seventeen various in a resulting cumulative sen- years tence 390 in In a prison. reported the Court opinion, of Special Appeals convictions, Bey’s affirmed vacated his but Bey proceeding. sentences and for a sentencing remanded new v. State, 521, (2016). Md.App. A.3d 1113 We granted petition State’s certiorari writ consider whether Special the Court of Appeals Mary- erred determining (2012 Vol.), Repl. § land Code Criminal Law Article 3-315 (“Crim. Law”), against entitled course of “Continuing conduct childf,]”1 prohibits vic- multiple convictions and sentences per Code, Maryland provides entirety § 1. Criminal Law Article 3-315 in its that: general In (a) person engage in may A not § or includes more acts that would constitute of 3- three violations 3-304, 3-305, 3-306, § § § §or 3-307 of this over a subtitle more, days age period with or a victim who is under the any years during time the course of conduct. Penalty (b)(1) guilty person A felony who this section is of a and on violates subject imprisonment exceeding years. conviction (2) imposed may separate A sentence under this section from § to or with consecutive concurrent a sentence under 3-602 this title. Required number of acts (c) determining required whether number of acts occurred section, of this trier of violation fact: (1) occurred; only required determine must number acts (2) required need not determine which acts constitute number acts. Merger of offenses (d)(1) 3-303, charged § person may § A not be 3- a violation 3-305, 3-306, involving this subtitle same *5 or of type the the of of tim, regardless the duration abuse of language the acts sexual committed. for and being from convicted sentenced prohibits a defendant of as a unit prohibited separate sexual act type each Moreover, determine, exhaustion we after prosecution. construction, ambiguous the statute is that rules convicted and sen- may regarding whether defendant minimum inter- ninety-day multiple uninterrupted for tenced Thus, lenity the rule conduct. vals for the Accordingly, multiple punishments. to operates bar of the Court follow, judgment affirm the that we shall reasons Appeals. Special AND LEGAL PROCEEDINGS2 PACTS Trial
The Evidence at of the sexual victim, a minor at the time abuse The female Bey, her trial, sexually that she was abused testified in- The first father, years. four approximately putative years ten old occurred when the victim was stance abuse this, Bey on After cunnilingus the victim. Bey performed when to engage her and forced exposed pornography the victim the During year vaginal intercourse. fellatio and intercourse, old, acts—vaginal the sex years victim was eleven multiple per times fellatio, cunnilingus—occurred week. during the frequency same acts continued with the These If years old. and thirteen victim was twelve years when with a belt. resisted, Bey threatened beat her the victim this unless proceeding a violation of section in the same victim charged charged period the time other occurred outside violation under this section. 3-303, (2) § § 3- may charged person not be with a violation A 304, 3-305, 3-306, involving this the same or 3-307 of subtitle charged period the time occurred outside victim the violation unless charged this section. under presented accepts generally Facts Statement Bey 2. Because (1) brief, derived from: our relevant facts is recitation State’s (2) transcripts from undisputed presented in brief and facts Bey's September 2014 trial. kill Bey threatened victim younger siblings hurt her if she anyone told about the abuse. *6 the victim thirteen,
When was she that learned she was pregnant. When the victim fourteen, Bey was took her to the University of Maryland Medical Center to have fetus Bey aborted. continued to sexually abuse victim. The ultimately reported victim Bey’s sexual abuse to a therapist, brought who the matter to the attention of the authorities. An investigation performed was and the victim made recorded statement. When Detective Ronald Dement of the Frederick County Sheriffs Office learned that Bey had forced to perform the victim fellatio earlier the same day statement, victim’s the detective obtained a search warrant conduct forensic sexual assault exam of Bey. Subsequent testing showed that the victim’s present DNA was Bey’s on penis.
Fetal tissue from the victim’s abortion was obtained. DNA testing Bey revealed that biological was the father of the fetus. The State into introduced evidence recorded calls that Bey made incarcerated while Frederick County Deten- calls, tion those During Bey Center. to having admitted his daughter perform oral sex on him. History
Procedural Bey charged in 2 was Count awith seven-month-long course of conduct>—fromthe began time at age abuse ten until the victim turned eleven—that alleged three or more acts of second-degree rape, offense, second-degree sexual or third- degree sexual For years offense.3 the victim was eleven, twelve, old, years Bey and thirteen was charged with a continuing course for each year by conduct the specific act (vaginal intercourse, sexual committed fellatio, or cunnilin- gus). example, year For for the that the victim was eleven Code, (2012 Vol., (sec- Repl. 3. Md. Crim. Supp.) §§ 2015 3-304 ond-degree offense), (third- rape), (second-degree 3-306 sexual 3-307 offense), degree (continuing sexual course of conduct with a child). 262 course of old, charged with three
years Bey was second-degree acts of counts, three or more alleging conduct (Count (Count 5), and 4), or more of fellatio three acts rape (Count 6). charges These cunnilingus or acts of three more was in which the victim twelve year for the repeated were (with or second- charging three more acts old Count years fellatio, or more acts charging three degree rape, Count cunnilingus), acts of three more charging and Count (with old Count years the victim was thirteen year for the fellatio, charging Count 13 charging second-degree rape, charging cunnilingus). and Count sheet reflected instructions and the verdict The trial court’s jury Bey guilty indictment. The found specificity trial court offenses. The continuing course all the twenty-five of imprisonment consecutive terms imposed *7 of 265 The years. for a total as to each offense thirty years and concurrent additional consecutive imposed trial court totaling years counts on other imprisonment terms aggregate years. for an sentence of counsel Bey’s judgment acquittal, of a for part As motion counts of conduct continuing that all of the course argued merged: should be if certainly you long period
That one conduct and was say is that would everything [the victim] were believe than, um, or acts that will more three more true there was ... day period. acts over a 90 constitute a violation those the clock no, gap no to start there’s there was break But speak. so to again over
[***] If stopped. there continuing course conduct never [T]he a, specific out that there was a testimony if the bore was stopped term he and he didn’t for lack of better that break whatever, then that conduct it for months of but do six that it guess argue I the State could did up again, started But the of conduct that started. It was a new course stop. that time during period. testimony stopped that never was The court interpreted defense argument counsel’s as fol- lows:
Well, he’s really saying what is that sexual abuse on [a] minor, continuing of conduct, course is a legitimate charge, but the presented evidence shows one conduct ....
In response, prosecutor argued that Crim. Law 3-315 for prosecutorial allows discretion in how the State sets forth separate charges brought under the statute: punishable are,
What’s the statute are three sexual acts that occur in a 90 day period. an That’s offense. frankly I’ve given a, the Defendant a lot more leeway only charged, only charged charge year one for a period I where could charged have four. ... He’s multiple committed acts over year period. So he has received the benefit of me not overcharging and charging for the particular wrong that 3-315 is [Crim. ] meant to address. prosecutor
The further argued the statute allows for counts separate of Crim. Law 3-315 violations for type each committed, sexual offense evidence at substantiated of rape, least three acts acts of three and three cunnilingus, years acts fellatio for the eleven, twelve, was victim years and thirteen of age. The trial court denied the motion judgment acquittal. Bey’s argued counsel sentencing only charge permitted was per time period court alleged. disagreed imposed separate sentences for each offense.
In a reported opinion, the of Special Appeals Court affirmed convictions, Bey’s but vacated his sentences and for remanded a sentencing Bey State, new proceeding. 228 Md.App. (2016). 139 A.3d 1113 of Special interpret- Court Appeals plain language ed the of legislative history the statute and the “[b]y to conclude that electing charge Bey Law under Crim. 3-315, only the State could obtain at most a single convic- victim, tion of one continuing singular course conduct with a thus, and Bey may only be for a sentenced one conviction of (foot at Id. at A.3d
continuing course nature.” con omitted). Special Appeals Court of addition, the note that State’s construction that, arguendo the assuming cluded persua plausible “could deemed be Crim. Law 3-315 the unit regard intent sive, the Legislature’s ... contradictory interpreta of at least capable two prosecution 543-44, at ambiguous.” Id. tions and the is therefore statute omitted). (footnote Thus, independent as an at 139 A.3d of lenity that the rule Appeals held basis, Special the Court continuing on that the sentences the mandate would a sen and remanded for new merged conduct convictions 544, 139 at 1125. tencing. A.3d Id. Judge Daniel A. Friedman indicat- concurring opinion,
In a pro- § 3-315 of Crim. Law interpretation that ed the State’s construction of statute. reasonable vided an alternative ambiguous, that the was Thus, Judge agreed statute Friedman therefore, lenity. rule of Id. subject to the certiorari, which petition writ granted We State’s following question: presented of Special impression, matter of first did Court As a Criminal of the concluding err in Appeals Section Article, engaging in prohibits child, prohibits more than course of conduct with victim, regardless dura- per conviction and sentence committed? or the of sexual acts type tion of the abuse provides language plain We determine not constitute sexual acts do types prohibited that separate Moreover, ambigu- statute is separate prosecution. units may be convictions and sentences multiple as to whether ous of an minimum ninety-day for multiple obtained intervals statute is course of conduct. The uninterrupted continuing subject lenity. rule of thus to the
DISCUSSION of Crim. Law 3- language argues The State of a charge than one permits more if Furthermore, asserts that per victim. State *9 is to ambiguous, history statute deemed the be and of purpose support resolving ambiguity Crim. Law 3-315 the in favor of one permitting charge more than of continuing per victim, the and rule lenity does apply. Bey responds that the unambiguously just statute permits one conviction per one course of conduct victim. if Alternatively, Bey argues even the statute is ambigu- ous, permits just the rule of lenity conviction for one continuing course of conduct per victim. Bey’s order to the legality sentence, determine
we prosecution must determine what unit of the General Assembly envisioned when established Crim. Law 3-315. (2004). 114, 122 Triggs State, 27, 41, v. 382 Md. 852 A.2d “This applies statutory Court our rules of construction in normal determining legislative regarding proper intent the unit of prosecution appropriate punishment respect and unit of with State, of any to violations criminal statute.” Melton 379 Md. (2004). 471, 478, 842 A.2d The construction are statutory rules well-estab lished: is to ascer- statutory interpretation cardinal rule Legisla-
tain and the real and actual intent effectuate goal statutory ture. A lan- primary interpreting court’s is to guage legislative purpose, discern ends accomplished, statutory evils to be remedied provision scrutiny. under
To Assembly, begin ascertain the we intent General normal, the statute. If the lan- plain meaning with the clearly guage unambiguous consistent purpose, inquiry the statute’s our as to the apparent legislative apply intent ends and we the statute ordinarily as rules of written without resort other construction. We neither reflect an language add nor delete so intent unambiguous language not evidenced in the statute, do not a statute with “forced or and we construe application. that limit or extend its interpretations” subtle vacuum, however, language We, do not read of a statute’s strictly interpretation our we confine nor do *10 Rather, to alone. language section plain isolated of the the context must viewed within language plain considering the belongs, pur- it statutory scheme to which enacting in aim, Legislature policy or pose, intends its enact- Legislature presume statute. We harmonious as a operate together to consistent and ments law, and, harmonize thus, we seek reconcile and body of consistent statute, possible of a the extent parts object scope. and the statute’s subject ambiguous of a statute are and the words Where or where the interpretation, than one to more reasonable isolation, unambiguous when viewed are clear words larger of a part ambiguous when read become but by scheme, ambiguity a court must resolve indicia, including the in other legislative intent searching intrinsic or other relevant sources history legislation of the resolving ambigu- In process. to the legislative and extrinsic statute, how ities, a court the structure considers laws, general purpose its and relative relates to other competing construc- legal effect various rationality and tions. given reasonable case, the statute must be a every absurd, illogical incompati- or not one that is
interpretation, with common sense. ble (2010) 413, 421-22, 2 Johnson, 415 Md. A.3d
State Semsker, 257, 274-77, 987 A.2d Md. Lockshin v. (quoting (2010)). 18, 28-29 § Language of Law 3-315 Crim.
The Plain intent legislative begin quest our discern We (a) of language the statute. Subsection resorting to the § forth offense Law 3-315 sets Crim.
of conduct as follows:
(a) may engage A person or that would consti- three more acts conduct which includes § 3-304 [first-degree rape], [sec- tute violations ond-degree rape], 3-305 [first-degree offense], sexual § 3-306 [second-degree offense], sexual 3-307 [third- degree sexual of this offense] over a period subtitle more, days or with a victim who is under age years at any during time the course of conduct.
Moreover, (c) provides subsection that:
[i]n determining whether the required number of acts oc- ..., curred the trier fact:
(1) must only determine occurred; the number acts (2) need not determine acts constitute the required of acts.
number (d) Subsection prohibits further the State from charging defendant with individual incidents of sexual crimes against victim, the same “unless the other violation charged occurred *11 outside the period charged time this under section.” argues
The State that each of type prohibited sexual act may constitute separate conduct, a course of even during overlapping intervals of Accordingly, Bey time. was convicted of of conduct courses related to rape, cunnilingus, and fellatio during overlapping periods. time Regarding this issue, the of Special Appeals stated: Court
The State this supports argument by reference to the disjunctive “or,” conjunctive rather than the “and,” in Crim. 3-315(a). § Law not think We do this argument the floats Moreover, State’s boat grammatically. implausible we find it that Legislature to intended treat separate of types illegal acts sex as units of separate prosecution.
Bey,
Md.App.
n.13,
at 543
A.2d (“ or includes ‘including’ ‘Includes’ or means Article limitation.”). of by way and not of by way illustration including this, as it (c) Crim. Law 3-315 confirms of Subsection the required “only of fact to determine that trier requires the acts constitute “not occurred” and ... which acts number of Thus, prohibits acts.” required number prohibited each type sentences for separate convictions of conduct during separate prohibited a course act as sexual statutorily-defined course conduct. uninterrupted an ninety-day as to prosecution unit of it relates Regarding conduct, course continuing of time minimum intervals Crim, 3-315(a) may not provides person that “[a] which includes engage in a conduct three days or period more[.]” over or more acts ... added). a course language that provides (emphasis ninety a minimum. days, conduct must be of subsection interpret plain language It is reasonable conviction for (a) to one as is limited providing State course of conduct—even when days ninety persists for consecutive intervals if reading, Bey more. asserts support this multiple convictions Assembly intended General “or more.” obtained, language would have added (a) interpret subsection It is likewise reasonable *12 being statutorily as prosecution every forth a of setting unit days. Theoret- ninety that is at least defined course charge § 3-315 a Crim. Law ically, bring the State could in or more acts 120-day on three a interval based occurred, aby § followed under Crim. Law 3-315 prohibited 90-day § on charge a consecutive Crim. Law 3-315 based Crim. prohibited acts under interval in which three or more language pro- does not statutory § 3-315 occurred. The interpre- reasonable interpretation, is a hibit the State’s language on the of the statute. tation based reading Similarly, statutory scheme as a whole does not Assembly’s elucidate the General intent on this issue. Subsec- (d) § tion provides Law 3-315 may Crim. that the State crimes, charge individual sex enacted in scheme, fall period time charged outside the within a course of conduct:
(d)(1) not person may charged § A with a be violation 3- [first-degree rape], § 3-304 [second-degree rape], § 3- [first-degree offense], § sexual 3-306 [second-degree offense], § sexual or [third-degree 3-307 sexual offense] involving this proceed- subtitle the same victim the same ing as a this violation section unless the other violation charged occurred time period outside the under charged this section.
(2) A person may § a charged with violation 3-303 § [first-degree rape], [second-degree 3-304 rape], 3-305 offense], [first-degree sexual 3-306 [second-degree sexual offense], [third-degree or sexual this offense] involving subtitle the same victim violation unless the charged occurred period charged outside the time under this section.
A court a similar interpreting Texas statute observed: legislative
This scheme for practical implications has of any involving case prosecution sexual-abuse of child. case, a any given prosecutor may young believe that memory is too vague support victim’s a conviction independent acts sexual a certain occurring abuse before period, likely charge time and the State will defendant during period with continuous sexual that particular abuse However, may time. the State believe the victim able acts testify certainty regarding occurring outside that time have may frame State other evidence Regardless on those wrongdoing defendant’s occasions. time, the victim turned 14 whether has before that gives prosecutor go the discretion to on forward charges, must consequently those additional have to curtail the frame of discretion time the continuous sexual abuse offense order do so.
270 2015). (Tex. State, 600, 614 n. App. v. 10 Holton S.W.3d statute, Holton, that the Texas like the Mary- the court held statute, prosecution charge continuing allows the to land sexual of conduct and additional counts of individual course fall that those individual outside the crimes—provided crimes alleged continuing count. Id. 615. period time in the course 3—315(d) of Crim. Law and the re- plain language The clarity do not as to statutory mainder the scheme provide to Assembly the General intended State whether of conduct into single to divide a permitted of at of a of conduct multiple intervals least Assembly The did not enact statute ninety days. General limitation, have. single-use although contain a it could to We judicial cannot, however, language that to statute add Club, Maryland Dep’t Inc. Lonaconing Trap fiat. See (2009) Env’t, 702, (stating 410 Md. 978 A.2d that an language neither add nor delete so to reflect intent as “[we] ”). in ... language not of the statute plain evidenced Further, interpret language to is reasonable charge multiple to granting statute as the State latitude for a course of prosecution single uninterrupted units conduct, minimum long as unit of is a prosecution each only interpretation. But is ninety days. that reasonable “nor (stating [do See id. construe the statute with we] appli- its interpretations forced or that limit or extend subtle cation.”). ambiguous, is as it plain language subject competing interpretations. is to multiple reasonable (2015). State, 404, 418, 1, 9 A.3d Wagner v. Md. Legislative History Purpose intent, attempt legislative we to further As discern ambiguity. canons of do resolve this construction intended, Assembly is in The State correct the General statute, prosecution affording to assist the adopting children, to are sexually more abused who often protection occurred, specify or what sexual offenses unable when That repetitive when are nature. is especially those offenses however, intent, An undisputed. legislative also additional evidenced—defendants would be exposed lighter sentences when the State elected proceed statute, under this rather *14 than prosecuting several individual sex crimes.
In
bar,
the case at
the Court of Special Appeals recognized
that Crim. Law 3-315 was enacted in apparent response to
this Court’s
State,
decision in Cooksey v.
1, 7,
359 Md.
752
606,
(2000).
A.2d
609
Bey,
539,
228
at
Md.App.
All of the courts are sympathetic to of plight both the victims, young often unable to state in except the most general committed, terms when the acts were prose- and of cutors, either hampered by the specific lack of information or, when is reported that the conduct occurred dozens or hundreds of times a significant period, over faced with the practical problem of how to deal with such a of multitude offenses. courts are all also properly with the concerned rights defendants, of who togo trial with a of presumption innocence, and with the ramifications to them of duplicitous pleading.
Cooksey, 359
18-19,
Md. at
When the was during Regu- introduced lar Session, as H.B. it faced at opposition the committee hearings. Lynn Professor McClain at the of University Balti- Law, more School who was in drafting instrumental Legislation proponents how wrote legislation, later opposition: to this responded proponents helpful us proved argument
[O]ne of such recognition that, Maryland’s the absence was multiple counts offense, charge had to prosecutors an obtaining crimes, sometimes sex and were rape other on the Placing this crime books years. over sentences (al option more appropriate give prosecutors would it). they need not avail themselves though University Law: McClain, the Criminal Reforming Lynn U. Annapolis, 34 Group Goes to School Baltimore omitted). (footnotes (2003) its decision Balt. L.F. likewise exam- Appeals bar, Special the Court the case statute: joint purpose is viewed as a ined what is a choice Crim. Law 3-315 under Charging defendant *15 make; requirement it is not a prosecution elects charge choose to each could Maryland law. The State under responsibili- burdened with sexual act and be individual of each sexual act every occurrence ty specifically of proving relief provides frame. This statute alleged the time during burden, made diffi- challenging from this prosecution to the with struggle victims who inherently younger with cult re- act occurred and with what sexual articulating exactly incident. of each details and dates membering the exact Bey 1125 n. 11. n.11, A.3d at at 542 Bey, Md.App. Crim. choice to under prosecute that the State’s argues prosecution § an inherent trade-off—the presents 3-315 sexual every occurrence each specifically of proving relieved maxi only thirty-year act, may obtain prosecution but the view, In our for a violation statute.4 mum sentence inter a reasonable joint purpose provides of this recognition of the statute. pretation charging prohibited from viola- prosecution is not We note that the
4. 3-315(d), statutes, § provided for in Crim. Law of other tions continuing charged offenses within the time frame of the fall outside instance, case, Bey convicted five was also count. In this course third-degree sexual counts of of minor and two counts of sexual abuse offense. § Crina. Law 3-315 was derived from the continuing course Arizona, conduct statutes California, enacted York, New McLain,
and Wisconsin.
34 U. Balt.
L.F.
nn. 99-100
Ariz.
(citing
(2001);
§
Rev. Stat.
Code,
Cal. Penal
(West 1999);
§ 288.5
NY. Penal Law 130.75 (McKinney
2001);
Supp.
(West
1997 &
2001)).
Stat.
Wis.
Ann.
948.025
The
from
statutes
these states were used to
at a
“arrive[]
draft
seemed
take the
from
best
those models.”
McLain,
We note that the states, statutes of two of these California Arizona, provision include a expressly prohibiting a defen- dant from being charged more than with one count of a conduct, i.e., a single-use provision. The California provides, statute in pertinent part:
A defendant bemay charged only with one count under this section unless more than one victim is involved in which case a separate count charged for each may be victim. 288.5(c). Code, § Cal. Penal Arizona Similarly, the provides, in pertinent part:
A may charged defendant be count only under this section than unless more one victim is If involved. more than one involved, victim is a separate may count charged for each victim. 13-1417(D).
A.R.S. York statutes, New Wisconsin like the Maryland statute, do a single-use provi- not include sion. A New York court nonetheless stated: has *16 crime of
[t]he course sexual conduct against child ... is a continuing offense an and indictment cannot charge a defendant with more than count of a crime that can be characterized as a has continuing offense unless there been in interruption an course conduct. Moore,
People 809, 810-11, 283, v. 59 A.D.3d 874 N.Y.S.2d 285 (2009) (internal omitted).5 quotation marks and citations engage 5. The State any rebuts that the New York court did not in find, however, statutory reaching construction in this conclusion. We 274 interpretation court’s that Wisconsin proposes
The State State persuasive. is continuing course statute of that state’s 2007), 481 (App. Nommensen, 305 Wis.2d 741 N.W.2d (2008). Finding denied, Wis.2d 746 N.W.2d cert. “to was enacted of conduct statute course that multiple the court “To hold prosecution,” facilitate stated: of conduct pattern permitted are where prosecutions of sexual instances of ‘3 more violations’ multiple reveals to this venues would run counter assault in different 948.025) (footnote (citing purpose.” Id. at W.S.A. omitted). from
Nommensen, however, distinguishable highly is The court Nommensen in noted expressly at case bar. charges “cov- permitted because the multiple convictions were in times and instances at different wholly discrete er[ed] Nommensen, count 487. One 741 N.W.2d at venues.” different May Washington County, in alleged sexual abuse between alleged count 1998. Id. at 484. The second April and County, April Lac and in Fond du between sexual abuse 2000. Id. The Wisconsin court found problem no December counts, alleged against conduct multiple because “the county separate in Lac Fond du and Nommensen a new represented] [Washington County] in each alleged Id. in conduct.” departure volitional Nommensen’s omitted). marks, brackets, citation (quotation interruption in the conduct court a clear recognized thus conduct, as to one opposed courses of two distinct showed bar, the issue of course. See id. In the case at continuous in interruption Bey’s clear whether there was a conduct is not this Court. before statutes, Law 3- Crim. York and Wisconsin Like the New provision. contain a Given single-use 315 does not provisions single-use aware of the Assembly was General statutes, single- of a Arizona absence the California interpreta- supports our a reasonable provision use regarding before the issue that the conclusion nonetheless instructive this Court.
275 tion that Legislature our intended to multiple allow counts of Crim. multiple ninety-day 3-315 for of a intervals is, however, continuing conduct. This an additional interpretation competing light reasonable statute. the competing interpretations outlined, we have are not we say able to an express single-use absence of provision absolves ambiguity the statute of favor of the State’s proffered interpretation of the statute as it relates to the Moreover, duration of course. given contra- dictory, interpretations which equal reasonable subsist with force even after the of statutory tools construction are ex- hausted, is ambiguous. the statute Lenity
The Rule of of lenity rule instructs that “will not courts interpret a criminal so as to ... increase the penalty that it on an places when such an can interpretation individual no be based on more a to what guess legislature] than [the State, 740, 1271, 744, intended.” v. 318 Md. 569 A.2d White (1990) States, (quoting Simpson 6, 15, 1273 v. United 435 U.S. 914, (1978)). 909, 98 55 70 simply, S.Ct. L.Ed.2d “Stated rule of our lenity only interpretation informs criminal of statutory statute when the standard tools fail interpretation Legislature.” State, discern the intent of 420 Gardner v. (2011). 1, 17, 801, Md. 20 A.3d 811 bar, In the case at tools of standard interpretation legislative regarding fail to intent discern prohibits whether Crim. Law 3-315 more than convic victim, tion per regardless and sentence duration of the an arbitrary abuse. We cannot conduct choice regarding which Instead, reasonable interpretation prevails. lenity the rule State, compels Corp. result. Book v. 316 Md. See Randall (1989) 315, 327, 715, (citing 558 A.2d 721 Albernaz v. United 342-43, States, 333, 1144-45, 450 1137, U.S. 67 S.Ct. (1981)). State, 286, Briggs 265, L.Ed.2d 275 See also 413 Md. (2010) (“Ordinarily, lenity applies the rule A.2d when are evenly weighed the scales balanced after court has of a Randall contradictory interpretations (citing statute.” 721)). As have A.2d at we Corp., 316 Md. Book *18 “ ..., to the pursuant prosecution stated, ‘ambiguous units of the construed normally favor lenity, must be rule Triggs, 382 Md. merging the offenses.” defendant,’ effectively State, 471, 379 Md. 43, (quoting 124 Melton v. 852 at at A.2d for (2004)).Therefore, the 743, the sentences A.2d merged. counts must be conduct
CONCLUSION § Law of Crim. 3-315 plain language the determine that We type for sentences each convictions and prohibits separate of con- separate prohibited act a sexual prohibited addition, ambiguous, the statute is determine that duct. we construction, and statutory tools of the after exhaustion regard- interpretations considering competing reasonable only § for one conviction 3-315 allows ing whether Crim. Law single continuing of a intervals ninety-day consecutive for prohibit Thus, lenity operates the rule of course of conduct. for the con- punishments. Accordingly, sentences multiple merged. counts must tinuing course conduct THE OF APPEALS OF COURT SPECIAL JUDGMENT PAID BY FREDERICK COSTS TO AFFIRMED. BE IS COUNTY.
Watts, J., judgment only. joins Barbera, JJ., concur. C.J., McDonald, Getty, and C.J., J., Barbera, Getty, Concurring Opinion by McDonald, J., join. I Majority. agree that by
I concur the result reached (“CR”) a prohibits § language of 3-315 plain Criminal multiple sentenced being from convicted and defendant to each corresponding course of counts of statute, join fully I prohibited under the type sexual act Majority Op. at of the Majority’s opinion. See portion in this A,3d also that CR 3-315 265-68, agree at I 878-80. charge respect State can ambiguous whether with multiple defendant course-of-conduct against offenses same by dividing victim the abuse into periods successive (“The time. See id. at 156 A.3d at language the statute is ambiguous, subject as it is to multiple competing interpretations.”). However, reasonable I disagree with the Majority’s conclusion this cannot ambiguity be resolved ordinary tools statutory interpretation. See id. (“In 275, 156 bar, A.3d at 884 the case at standard tools of statutory interpretation fail to legislative discern the intent regarding whether Crim. Law 3-315 prohibits more than per victim, conviction and sentence regardless of the abuse.”). duration
Instead,
I would hold that
the Court can ascertain the
intent of
legislative
CR
by viewing
the plain language
the context of
“within
scheme which it be-
*19
longs, considering
aim,
the purpose,
or
of
policy
the Legisla-
in
ture
enacting
264,
the statute.” See id. at
156
at
A.3d
878
Johnson,
(quoting
413, 421,
State v.
415 Md.
Although Majority the a provides thorough analysis of the legislative § and history purposes 3-315, CR the jurisdictions statutes from other that models, served as I Majority the fails to give appropriate believe consideration starting point the for any statutory interpretation analysis: plain language the of the I telling statute. find that it always refers to the continuing course conduct 3-315(a) singular § offense form. For example, CR “A provides, person may engage not continuing course conduct ... with a victim years who is under the of 14 age at during the course any added.) time conduct.” (Emphasis telling Even more is that the statute also refers to consistently period the time over the course of conduct in the occurs (1) (2) 3—315(d) singular § form. Paragraphs CR both state, person may “A not charged § a violation of 3- with 303, 3-304, 3-305, § 3-306, § of this 3-307 subtitle violation [other] victim ... unless the
involving the same period time under this section.” charged occurred outside added.) (Emphasis conclusive, Bey’s supports not Mr. language,
This while the State is limited one interpretation of the statute: victim, per of conduct for conviction for persists periods of conduct consecutive if the course even had Assembly each. If the General ninety days of at least to charge multiple course-of- permit intended to State abuse, multiple ninety-day intervals offenses of CR charges for individual violations could have stated periods occur the time through §§ 3-307 must “outside of the lan- reading this section.” This charged under statute, purposes in context of the considered guage at Majority, Majority Op. see of the statute discussed 881-82, 269-72, 156 at leads me to conclude A.3d limit Assembly intended General defendant, conviction unless there per conduct offense to one multiple are victims. I rule of in this case
Accordingly,
apply
lenity
would
legislative
I
it is
to determine the
possible
believe
because
tools of
using
ordinary
our
intent
CR 3-315
stated,
Majority
*20
words,
position
a default
lenity provides
In other
the rule
ordinary
interpreta-
tools
for the Court when
Oglesby
to
statute. See
v.
ambiguity
tion fail
resolve
(“When
(2015)
676,
a court
State,
673,
Chief Barbera and Judge McDonald have authorized join me state that they this opinion.
156A.3d 886 Keisha Ann HARTMAN Maryland
STATE of Term, Sept. No. Appeals Maryland.
Court of
March
As
notes
interpretation.
previously
of criminal
our
lenity only
interpretation
“the rule of
informs
fail
statutory interpretation
tools
statute when the standard
Majority Op.
at
Legislature.”
to discern the intent
801).
Gardner,
(quoting