Court for Frederick County Case No. K14-54600
Barbera, C.J., Greene, Adkins, McDonald, Watts, Hotten,
J., joins in judgment only.
Barbera, C.J., McDonald, and Getty, JJ., concur.
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[,
]" 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.
AND LEGAL PROCEEDINGS
Evidence at Trial
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.
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.
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.
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.
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.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).
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.
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
The court interpreted defense counsel's argument as
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 . . . .
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.
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.
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
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.
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.
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?
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.
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
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 ...