Appeal From the Circuit Court for Baltimore City, Paul E. Alpert, Judge.
Submitted by: Allison P. Brasseaux (Paul B. DeWolfe, Public Defender on the brief) all of Baltimore, MD, for Appellant.
Submitted by: Benjamin A. Harris (Douglas F. Gansler, Attorney General on the brief) all of Baltimore, MD, for Appellee.
Berger, Nazarian, Leahy, JJ.
[222 Md.App. 214] Nazarian, J.
After injuring James Poleto in a car accident while impaired by alcohol, Kwaku Wiredu was charged and convicted in the Circuit Court for Baltimore City of a number of reckless driving charges, as well as second-degree assault, indecent exposure, and public urination. On appeal, Mr. Wiredu argues that the circuit court erred in instructing the jury as to second-degree assault and in imposing an improper sentence. [222 Md.App. 215] We affirm Mr. Wiredu's convictions, but we agree that two elements of his sentences require correction, and we vacate in part and remand for further (limited) proceedings for that purpose.
On June 29, 2012, Mr. Wiredu, a private duty nurse and a certified medical technician, went to a friend's house to deliver some items he had obtained during a recent trip to Africa. Mr. Wiredu said that he drank a tall can of beer and part of another while he was at his friend's house. It was windy and raining--a surprise derecho had hit the state that night--so Mr. Wiredu decided to stay at his friend's house until the storm died down. At approximately 1:00 a.m., Mr. Wiredu drove home after his wife called and said she was scared because a tree had fallen in the driveway and the lights had gone out.
Mr. Wiredu drove toward home on Harford Road, a four-lane road with two
northbound lanes and two southbound lanes. Mr. Wiredu was driving in the left southbound lane, the lane closest to the center line, when he observed a motorist operating a motorcycle in the left northbound lane. According to Officer Ralph Horton, who was driving behind the motorcycle, Mr. Wiredu's silver truck " merged" into the motorcycle's lane and collided head-on with the motorcycle, which was being driven by Mr. Poleto. Mr. Wiredu testified that the collision was the product of the motorcycle " swerving" into his lane. Officer Horton's version of the accident was corroborated by Matthew Wright, a Baltimore City firefighter and EMT who also witnessed the accident.
As a result of the accident, Mr. Poleto landed near the curb on his back, approximately thirty feet from his motorcycle. After caring for Mr. Poleto, Officer Horton noticed that Mr. Wiredu had " slow speech . . . [and] couldn't really talk[; ] [h]e was falling, like he couldn't stand up; eyes [were] glossy and red[; ] [h]e had a strong [scent] of alcohol coming out of his mouth." Mr. Wright observed that Mr. Wiredu's breath [222 Md.App. 216] " smelled of alcohol." Mr. Wright then watched as Mr. Wiredu exited his vehicle and " pulled out his privates" to urinate on Harford Road. Based on these observations, Officer Horton gave Mr. Wiredu an opportunity to take a field sobriety test, but Mr. Wiredu declined. Officer Horton then arrested Mr. Wiredu for driving under the influence of alcohol and took him to the police station, where Mr. Wiredu refused to take a Breathalyzer test.
Mr. Wiredu was charged with second-degree assault, causing a life-threatening injury by motor vehicle while under the influence of alcohol, causing a life-threatening injury by motor vehicle while impaired by alcohol, indecent exposure, public urination, driving while under the influence of alcohol, driving while impaired by alcohol, failure to drive right of the center lane, and negligent driving. After a jury trial, Mr. Wiredu was acquitted of causing a life-threatening injury by motor vehicle while under the influence of alcohol, but convicted of the remaining charges. The circuit court, on December 2, 2013, sentenced Mr. Wiredu to ten years, all but two years suspended, for second-degree assault, to a consecutive three years for the indecent exposure, to a consecutive two years for causing a life threatening injury to another while impaired, and to a concurrent ten days for public urination. In addition, the circuit court ordered Mr. Wiredu to pay $155,672 in restitution, including $60,000 in lost wages for Ms. Poleto, who gave up her job to provide care for her husband. This timely appeal followed.
Mr. Wiredu raises three arguments on appeal. First, he argues that his sentence for second-degree assault must be vacated because, under the rule of lenity, second-degree assault merges with causing a life-threatening injury to another by motor vehicle while impaired by alcohol for sentencing [222 Md.App. 217] purposes, because both convictions arose from the same car collision involving the same victim. Second, he claims that the circuit court's instruction to the jury with respect to second-degree assault was deficient. Finally, he contends that the circuit court erred in ordering him to pay restitution for Ms. Poleto's lost wages because the circuit court was only permitted to order restitution for Mr. Poleto's lost
wages. We find that his first and third arguments have merit, but that his second was not preserved.
A. Mr. Wiredu's Sentence For Causing a Life-Threatening Injury By Motor Vehicle While Impaired By Alcohol Should Have Merged Into His Sentence For Second-Degree Assault.
Citing the rule of lenity, Mr. Wiredu asserts that the circuit court erred by sentencing him separately for second-degree assault and for causing a life-threatening injury by motor vehicle while impaired by alcohol. In his view, the two offenses should merge because they " are not based on different criminal behavior." The State argues that separate crimes occurred, that Mr. Wiredu committed second-degree assault " when he crossed the center line and struck Mr. Poleto's motorcycle in a head-on collision" and his driving while impaired offense " subsumed his entire night: [Mr.] Wiredu drinking earlier that evening; [Mr.] Wiredu deciding to drive; [Mr.] Wiredu negligently causing the accident; [Mr.] Wiredu demonstrating he was under the influence." We agree with Mr. Wiredu that both offenses arise out of the same criminal behavior. And because the Legislature did not express the discernible intent to impose separate punishments [222 Md.App. 218] for these crimes, the rule of lenity compels us to resolve the doubt in Mr. Wiredu's favor.
" [T]he usual rule for deciding whether one criminal offense merges into another or whether one is a lesser included offense of the other, . . . when both offenses are based on the same act or acts, is the so-called 'required evidence test.'" State v. Lancaster, 332 Md. 385, 391, 631 A.2d 453 (1993) (citations omitted). This test compares the elements of the two crimes:
The required evidence test focuses upon the elements of each offense; if all of the elements of one offense are included in the other offense, so that only the latter offense contains a distinct element or distinct elements, the former merges into the latter. Stated another way, the required evidence is that which is minimally necessary to secure a conviction for each offense. If each offense requires proof of a fact which the other does not, or in other words, if each offense contains an element which the other does not, there is no merger under the required evidence test even though both offenses are based upon the same act or acts. But, where only one offense requires proof of an additional fact, so that all elements of one offense are present in the other, and where both offenses are based on the same act or acts, . . . merger follows.
Id. at 391-92 (citations and quotations omitted).
Here, the parties agree, and so do we, that the two crimes do not merge under the required evidence test. " Second-degree assault is a statutory crime that encompasses the common law crimes of assault, battery, and assault and battery." Quansah v. State, 207 Md.App. 636, 646, 53 A.3d 492 (2012), cert. denied,
430 Md. 13, 59 A.3d 507 (2013); see also Md. Code (2002, 2012 Repl. Vol.), § 3-203(a) of the Criminal Law Article (" CL" ) ( " A person may not commit an assault." ); CL § 3-201(b) (defining " assault" to mean " the crimes of assault, battery, and assault and battery, which retain their judicially determined meanings" ). Mr. Wiredu was charged with the unintentional battery form of second-degree assault, [222 Md.App. 219] which requires the State to prove (1) contact with another; (2) which is the result of criminal negligence; and (3) that causes an injury. See Elias v. State, 339 Md. 169, 184, 661 A.2d 702 (1995) (" An unintentional battery can arise from contact that is the result of a person's criminal negligence that legally causes injury to another." ).
Mr. Wiredu was also charged with causing a life-threatening injury to another by motor vehicle while impaired by alcohol. See CL § 3-211(d)(1). That charge required the State to prove (1) negligent driving; (2) while impaired by alcohol; and (3) that causes a life-threatening injury to another. See CL § 3-211(d)(1). Because Mr. Wiredu's second-degree assault conviction required proof of criminal negligence, which is not required for a conviction under CL § 3-211(d)(1), and because his conviction under CL § 3-211(d)(1) required proof of negligent driving, which is not required for a second-degree assault conviction, we agree with the parties that the two offenses are not merged under the required evidence test. See Walker v. State, 53 Md.App. 171, 200, 452 A.2d 1234 (1982) (" Each crime has a required element which the other does not. They are clearly not 'the same offense.'" (citations omitted)).
This does not end the merger inquiry, however:
[E]ven though offenses may be separate and distinct under the required evidence test, courts occasionally find as a matter of statutory interpretation that the Legislature did not intend, under the circumstances involved, that a person could be convicted of two particular offenses growing out of the same act or transaction.
Brooks v. State, 284 Md. 416, 423, 397 A.2d 596 (1979); see also Jones v. State, 357 Md. 141, 156, 742 A.2d 493 (1999) ( " Under the Double Jeopardy Clause, a defendant is protected against multiple punishment for the same conduct, unless the legislature clearly intended to impose multiple punishments." ). When two statutory crimes arise out of the same act,
[i]t is purely a question of reading legislative intent. If the Legislature intended two crimes arising out of a single act to be punished separately, we defer to that legislated choice. [222 Md.App. 220] If the Legislature intended but a single punishment, we defer to that legislated choice. If we are uncertain as to what the Legislature intended, we turn to the so-called " Rule of Lenity," by which we give the defendant the benefit of the doubt.
Walker, 53 Md.App. at 201 (citations omitted). Accordingly, we undertake a two-step analysis to determine whether to merge two offenses under the rule of lenity: (1) first, we ask whether the two offenses arise out of the same criminal conduct; and (2) second, we ask whether the Legislature has expressed an intention to impose multiple punishments.
The State urges us to find that the two offenses did not arise out of the same criminal conduct, that Mr. Wiredu committed a second-degree assault when he inadvertently merged his vehicle into Mr. Poleto's lane and struck Mr. Poleto's motorcycle in a head-on collision, and that he committed a violation of CL § 3-211(d)(1) when he (1) consumed alcohol; (2) decided to drive; and then (3) negligently caused the head-on collision with Mr. Poleto. In
the State's view, the second-degree assault arises out of the accident itself while the CL § 3-211(d)(1) conviction arises out of Mr. Wiredu's conduct from the entire night.
We disagree. The unintentional battery form of second-degree assault with which Mr. Wiredu was charged requires more than ordinary negligence--it requires criminal negligence. See Elias, 339 Md. at 184. " [W]hether a defendant's actions constitute gross criminal negligence/recklessness turns on whether those actions under all the circumstances amounted to a disregard of the consequences which might ensue to others." Id. (emphasis added). As such, Mr. Wiredu's second-degree assault conviction did not arise when he caused a head-on collision with Mr. Poleto, but rather when he caused the collision after he elected to drive while impaired by alcohol . It was Mr. Wiredu's decision to drive while impaired by alcohol that " amounted to a disregard of the consequences which might ensue to others," which ultimately constituted the criminal negligence necessary to support a [222 Md.App. 221] second-degree assault conviction. See id. If, as the State contends, Mr. Wiredu committed a second-degree assault by negligently causing the collision, every individual involved in a negligent car accident would face prosecution for second-degree assault. We find, therefore, that the two offenses arose out of the same conduct, i.e., Mr. Wiredu's decision to drive while impaired by alcohol and negligently causing a car accident that injured Mr. Poleto. See Quansah, 207 Md.App. at 653 (holding that a second-degree assault conviction arose out of the same criminal conduct as a violation of a peace order conviction where the defendant visited his former lover's residence, in violation of a peace order, and then physically assaulted her); Walker, 53 Md.App. at 201-02 (rejecting argument that the jury convicted the accused of a single count of assault and another count of attempted rape based on separate acts that occurred during a single criminal episode).
This takes us to the question of whether the Legislature expressed an intention to have multiple punishments or a single punishment for these offenses. The State argues that legislative silence bespeaks (if tacitly) an intention to punish separately, that " when two separate criminal statutes create separate offenses based on different criminal behavior with different criminal consequences, and there is no relevant legislative history suggesting that the Legislature intended to prohibit the imposition of separate sentences for the two separate crimes, the rule of lenity does not apply." Fenwick v. State, 135 Md.App. 167, 174-75, 761 A.2d 1021 (2000). But that presumption does not apply where, as we have found here, the two crimes arose from the same conduct. See Quansah, 207 Md.App. at 655-56 (rejecting the State's reliance on Fenwick because the defendant's " two sentences punish[ed] him for the same 'criminal behavior'" ). We have reviewed the relevant legislative history for evidence of affirmative intent, and we find nothing that indicates that the Legislature intended to authorize multiple punishments for a second-degree assault and a CL § 3-211(d)(1) violation based on a single traffic accident. Under these circumstances, [222 Md.App. 222] when " we are uncertain as to what the Legislature intended, we turn to the . . . 'Rule of Lenity' by which we ...