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State v. Bey

Court of Appeals of Maryland

March 27, 2017

STATE OF MARYLAND
v.
DOUGLAS FORD BEY II

         Circuit Court for Frederick County Case No. K14-54600

          Barbera, C.J., Greene, Adkins, McDonald, Watts, Hotten, Getty, JJ.

          Watts, J., joins in judgment only.

          Barbera, C.J., McDonald, and Getty, JJ., concur.

          OPINION

          Hotten, J.

         Respondent, Douglas Ford Bey II, was convicted by a jury on seventeen various counts, resulting in a cumulative sentence of 390 years in prison. In a reported opinion, the Court of Special Appeals affirmed Bey's convictions, but vacated his sentences and remanded for a new sentencing proceeding. Bey v. State, 228 Md.App. 521, 139 A.3d 1113 (2016). We granted the State's petition for writ of certiorari to consider whether the Court of Special Appeals erred in determining that Maryland Code (2012 Repl. Vol.), Criminal Law Article § 3-315 ("Crim. Law"), entitled "Continuing course of conduct against child[, ]"[1] prohibits multiple convictions and sentences per victim, regardless of the duration of the abuse or the type of sexual acts committed. The plain language of the statute prohibits a defendant from being convicted and sentenced for each type of prohibited sexual act as a separate unit of prosecution. Moreover, we determine, after exhaustion of the rules of statutory construction, that the statute is ambiguous regarding whether a defendant may be convicted and sentenced for multiple uninterrupted ninety-day minimum intervals of a continuing course of conduct. Thus, the rule of lenity operates to bar multiple punishments. Accordingly, for the reasons that follow, we shall affirm the judgment of the Court of Special Appeals.

         FACTS AND LEGAL PROCEEDINGS[2]

         The Evidence at Trial

         The female victim, a minor at the time of the sexual abuse and at trial, testified that she was sexually abused by Bey, her putative father, for approximately four years. The first instance of abuse occurred when the victim was ten years old when Bey performed cunnilingus on the victim. After this, Bey exposed the victim to pornography and forced her to engage in fellatio and vaginal intercourse. During the year that the victim was eleven years old, the sex acts-vaginal intercourse, fellatio, and cunnilingus-occurred multiple times per week. These acts continued with the same frequency during the years when the victim was twelve and thirteen years old. If the victim resisted, Bey threatened to beat her with a belt. Bey threatened to kill the victim or hurt her younger siblings if she told anyone about the abuse.

         When the victim was thirteen, she learned that she was pregnant. When the victim was fourteen, Bey took her to the University of Maryland Medical Center to have the fetus aborted. Bey continued to sexually abuse the victim. The victim ultimately reported Bey's sexual abuse to a therapist, who brought the matter to the attention of the authorities.

         An investigation was performed and the victim made a recorded statement. When Detective Ronald Dement of the Frederick County Sheriff's Office learned that Bey had forced the victim to perform fellatio earlier the same day of the victim's statement, the detective obtained a search warrant to conduct a forensic sexual assault exam of Bey. Subsequent testing showed that the victim's DNA was present on Bey's penis.

         Fetal tissue from the victim's abortion was obtained. DNA testing revealed that Bey was the biological father of the fetus. The State introduced into evidence recorded calls that Bey made while incarcerated in the Frederick County Detention Center. During those calls, Bey admitted to having his daughter perform oral sex on him.

         Procedural History

         Bey was charged in Count 2 with a seven-month-long course of conduct-from the time the abuse began at age ten until the victim turned eleven-that alleged three or more acts of second-degree rape, second-degree sexual offense, or third-degree sexual offense.[3]For the years that the victim was eleven, twelve, and thirteen years old, Bey was charged with a continuing course of conduct for each year by the specific sexual act committed (vaginal intercourse, fellatio, or cunnilingus). For example, for the year that the victim was eleven years old, Bey was charged with three continuing course of conduct counts, alleging three or more acts of second-degree rape (Count 4), three or more acts of fellatio (Count 5), and three or more acts of cunnilingus (Count 6). These charges were repeated for the year in which the victim was twelve years old (with Count 8 charging three or more acts of second-degree rape, Count 9 charging three or more acts of fellatio, and Count 10 charging three or more acts of cunnilingus), and for the year that the victim was thirteen years old (with Count 12 charging second-degree rape, Count 13 charging fellatio, and Count 14 charging cunnilingus).

         The trial court's instructions and the verdict sheet reflected the specificity of the indictment. The jury found Bey guilty of all the continuing course of conduct offenses. The trial court imposed consecutive terms of imprisonment of twenty-five and thirty years as to each offense for a total of 265 years. The trial court imposed additional consecutive and concurrent terms of imprisonment on the other counts totaling 125 years for an aggregate sentence of 390 years.

         As part of a motion for judgment of acquittal, Bey's counsel argued that all of the continuing course of conduct counts should be merged:

That was one long period of conduct and certainly if you were to believe everything that [the victim] would say is true there was more than, um, three or more acts that will constitute a violation of those acts over a 90 day period. . . . But there's no, there was no gap or break to start the clock over again so to speak.
***
[T]he continuing course of conduct never stopped. If there was a, if the testimony bore out that there was a specific break for lack of a better term that he stopped and he didn't do it for six months of whatever, but then that conduct started up again, I guess the State could argue that it did stop. It was a new course of conduct that started. But the testimony was that it never stopped during that time period.
The court interpreted defense counsel's argument as follows:
Well, what he's really saying is that sexual abuse on [a] minor, continuing course of conduct, is a legitimate charge, but the evidence presented shows one continuing course of conduct . . . .

         In response, the prosecutor argued that Crim. Law § 3-315 allows for prosecutorial discretion in how the State sets forth separate charges brought under the statute:

What's punishable in the statute are, are three sexual acts that occur in a 90 day period. That's an offense. I've frankly given the Defendant a, a lot more leeway and only charged, only charged one charge for a year period where I could have charged four. . . . He's committed multiple acts over a year period. So he has received the benefit of me not overcharging and charging for the particular wrong that [Crim. Law §] 3-315 is meant to address.

         The prosecutor further argued that the statute allows for separate counts of Crim. Law § 3-315 violations for each type of sexual offense committed, as the evidence substantiated at least three acts of rape, three acts of cunnilingus, and three acts of fellatio for the years that the victim was eleven, twelve, and thirteen years of age. The trial court denied the motion for judgment of acquittal.

         Bey's counsel argued at sentencing that only one continuing course of conduct charge was permitted per time period alleged. The court disagreed and imposed separate sentences for each offense.

         In a reported opinion, the Court of Special Appeals affirmed Bey's convictions, but vacated his sentences and remanded for a new sentencing proceeding. Bey v. State, 228 Md.App. 521, 139 A.3d 1113 (2016). The Court of Special Appeals interpreted the plain language of the statute and the legislative history to conclude that "[b]y electing to charge Bey under Crim. Law § 3-315, the State could only obtain at most a single conviction of one continuing course of conduct with a singular victim, and thus, Bey may be sentenced for only one conviction of a continuing course nature." Id. at 542, 139 A.3d at 1125 (footnote omitted). In addition, the Court of Special Appeals concluded that, assuming arguendo that the State's construction of Crim. Law § 3-315 "could be deemed plausible and persuasive, . . . the Legislature's intent with regard to the unit of prosecution is capable of at least two contradictory interpretations and the statute is therefore ambiguous." Id. at 543-44, 139 A.3d at 1126 (footnote omitted). Thus, as an independent basis, the Court of Special Appeals held that the rule of lenity would mandate that the sentences on the continuing course of conduct convictions be merged and remanded for a new sentencing. Id. at 544, 139 A.3d at 1125.

         In a concurring opinion, Judge Daniel A. Friedman indicated that the State's interpretation of Crim. Law § 3-315 provided an alternative reasonable construction of the statute. Thus, Judge Friedman agreed that the statute was ambiguous, and therefore, subject to the rule of lenity. Id.

         We granted the State's petition for writ of certiorari, which presented the following question:

As a matter of first impression, did the Court of Special Appeals err in concluding that Section 3-315 of the Criminal Law Article, which prohibits engaging in a continuing course of conduct with a child, prohibits more than one conviction and sentence per victim, regardless of the duration of the abuse or the type of sexual acts committed?

         We determine that the plain language of the statute provides that separate types of prohibited sexual acts do not constitute separate units of prosecution. Moreover, the statute is ambiguous as to whether multiple convictions and sentences may be obtained for multiple ninety-day minimum intervals of an uninterrupted continuing course of conduct. The statute is thus subject to the rule of lenity.

         DISCUSSION

         The State argues that the plain language of Crim. Law § 3-315 permits more than one charge of a continuing course of conduct per victim. Furthermore, the State asserts that if the statute is deemed to be ambiguous, the history and purpose of Crim. Law § 3-315 support resolving the ambiguity in favor of permitting more than one charge of continuing course of conduct per victim, and the rule of lenity does not apply. Bey responds that the statute unambiguously permits just one conviction for one continuing course of conduct per victim. Alternatively, Bey argues that even if the statute is ambiguous, the rule of lenity permits just one conviction for one continuing course of conduct per victim.

         In order to determine the legality of Bey's sentence, we must determine what unit of prosecution the General Assembly envisioned when it established Crim. Law § 3-315. Triggs v. State, 382 Md. 27, 41, 852 A.2d 114, 122 (2004). "This Court applies our normal rules of statutory construction in determining the legislative intent regarding the proper unit of prosecution and appropriate unit of punishment with ...


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