DONALD R. TWIGG
STATE OF MARYLAND
[Copyrighted Material Omitted]
Appeal from the Circuit Court for Charles County. Robert Nalley, Judge.
Argued by: Peter F. Rose (Paul B. DeWolfe, Public Defender on the brief) all of Baltimore, MD for Appellant.
Argued by: Sarah P. Prtizlaff (Douglas F. Gansler, Attorney General on the brief) all of Baltimore, MD for Appellee.
Woodward, Nazarian, Salmon, James P. (Retired, Specially Assigned), JJ.
[219 Md.App. 263] Woodward, J.
On August 3, 2011, a jury in the Circuit Court for Charles County found appellant, Donald R. Twigg, guilty of second degree rape, third degree sexual offense, incest, and sexual child abuse. The victim was appellant's minor daughter, and the offenses occurred between the years 1974 and 1979. On October 17, 2011, the circuit court imposed a separate sentence on each conviction, to be served consecutively, totaling forty years of incarceration, followed by a fifteen-year suspended sentence for the sexual child abuse conviction, with five years of probation.
On appeal to this Court, appellant presents one issue for review, which we have rephrased as a question:
Did the trial court err in imposing separate sentences on appellant for second degree rape, third degree sexual offense, and incest?
We will answer this question in the affirmative, and vacate all of the sentences imposed on appellant and remand the case for the imposition of a new sentence.
[219 Md.App. 264]BACKGROUND
In the underlying criminal action, appellant was indicted by a Grand Jury in Charles County, Maryland on October 29, 2010, on six counts: (1) sexual child abuse; (2) carnal knowledge; (3) second degree rape; (4) second degree sexual offense; (5) third degree sexual offense; and (6) incest. The victim of all of the charges was appellant's daughter, Ms. M., who was born on March 26, 1964. The offenses charged in the indictment allegedly occurred from 1974 to 1979, when Ms. M. was nine to fourteen years old. On August 2 and 3, 2011, appellant was tried in the circuit court before a jury on all six charges.
At trial, Ms. M. testified that, beginning when she " was around the age of 7 years old," appellant began to sexually abuse her, and the abuse continued until she was " [r]oughly 15 and 1/2." Specifically, Ms. M. stated that, while she was living at home, appellant would come into her room at night and put his hand under her shirt or nightgown, which later progressed to appellant putting " his finger inside of [her] vagina and . . . [her] hand on [appellant's] penis . . . until he had an orgasm." In addition, Ms. M. testified that, " around age 12, [appellant] started to penetrate [her] with his penis." Ms. M. indicated that the instances of penetration ceased when she was approximately fifteen and a half years old. Ms. M. said that overall, the incidents of vaginal intercourse occurred " several times." According to Ms. M., these incidents occurred in the basement of the family home and in appellant's van in nearby parking lots.
Ms. M. also acknowledged that she was currently involved in several lawsuits against appellant concerning family property and bank accounts. She testified,
however, that the property disputes were not the reason that she had come forward with allegations of sexual abuse.
Detective Corporal Kenneth Klezia, of the Charles County Sheriff's Office's Special Victims Unit, testified that, on October 9, 2010, he met with Ms. M. to conduct a recorded telephone call between Ms. M. and appellant. During the [219 Md.App. 265] recorded conversation, appellant stated that he always used condoms when having sex with Ms. M. to prevent pregnancy.
At the close of the State's case-in-chief, appellant moved for judgment of acquittal pertaining to the second degree sexual offense charge, which was granted. Appellant then testified in his own defense, denying all allegations of sexual abuse and claiming a misunderstanding regarding the recorded telephone conversation. In addition, appellant testified to several recent disputes between himself and Ms. M. involving jewelry, money, and property.
At the close of all of the evidence, appellant moved for judgment of acquittal as to the carnal knowledge count, which the trial court took under advisement. The jury returned verdicts of guilty on the charges of: sexual child abuse (from July 1, 1974 to January 1, 1979); carnal knowledge (from March 25, 1974 to June 30, 1976); second degree rape (from July 1, 1976 to March 25, 1978); third degree sexual offense (from July 1, 1976 to March 25, 1978); and incest (from March 25, 1974 to January 1, 1979). The court then granted appellant's motion for judgment of acquittal as to the carnal knowledge count.
On October 17, 2011, the circuit court sentenced appellant to consecutive sentences of: twenty years for second degree rape; ten years for third degree sexual offense; ten years for incest; and a suspended sentence of fifteen years for sexual child abuse, with five years' supervised probation. Appellant timely noted an appeal to this Court.
STANDARD OF REVIEW
In Khalifa v. State, the Court of Appeals explained the standard of review governing a constitutional claim:
" When a claim is based upon a violation of a constitutional right it is our obligation to make an independent constitutional appraisal from the entire record. But this Court is not a finder of facts; we do not judge the credibility of the witnesses nor do we initially weigh the evidence to determine the facts underlying the constitutional claim. It is the [219 Md.App. 266] function of the trial court to ascertain the circumstances on which the constitutional claim is based. So, in making our independent appraisal, we accept the findings of the trial judge as to what are the underlying facts unless he is clearly in error. We then re-weigh the facts as accepted in order to determine the ultimate mixed question of law and fact, namely, was there a violation of a constitutional right as claimed."
382 Md. 400, 417, 855 A.2d 1175 (2004) (quoting Harris v. State, 303 Md. 685, 496 A.2d 1074 (1985)). The Court of Appeals further counseled that, " although we do not engage in de novo fact-finding, our application of the law to the facts is de novo." Khalifa, 382 Md. at 417 (citation omitted).
On appeal to this Court, appellant argues that " the application of principles of double jeopardy provide that the convictions and/or sentences for second degree rape, third degree sexual offense, and/or incest must merge into the conviction and/or sentence for sexual child abuse." Appellant cites to Nightingale v. State, 312 Md. 699, 542 A.2d 373 (1988), in support of
the proposition that, " separate judgments for child abuse and underlying sexual offenses of any kind or degree violate the prohibition against double jeopardy." Appellant argues that, " although the Legislature amended the law pertaining to child abuse in response to Nightingale in order to allow separate sentences for child abuse and the underlying conduct, there was no provision for retrospective application of the change" that would apply to appellant's conduct from 1974 to 1979. Any such retrospective application, according to appellant, would violate both federal and state constitutional prohibitions against ex post facto laws. Appellant concludes that, because the several sex offenses merge into the sexual child abuse for sentencing purposes, the " judgments on the charges of second degree rape, third degree sexual offense, and incest" must be vacated.
[219 Md.App. 267] In response, the State argues that, " [w]hen a legislature has clearly indicated that it intends to permit multiple punishment[s] for offenses that otherwise would be considered the 'same offense' pursuant to the test set forth in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), double jeopardy principles do not prevent the imposition of multiple sentences in a single trial." Further, the State asserts that the General Assembly has provided " unmistakably clear legislative intent to permit separate sentences," and thus, appellant's sentences are not violative of double jeopardy. Accordingly, the State concludes that " [t]he trial court properly imposed separate sentences on [appellant]'s convictions for child abuse, second degree rape, third degree sexual offense, and incest." We agree with appellant and will explain.
The Required Evidence Test