Hutchison v. State

1

CLARK ANDREW HUTCHISON v. STATE OF MARYLAND

No. 1966-2021

Court of Special Appeals of Maryland^[**]

April 6, 2023

Circuit Court for Wicomico County Case No. C-22-CR-20-000525

Wells C.J., Ripken, Battaglia, Lynne A., (Senior Judge, Specially Assigned), JJ.

OPINION ^[*]

BATTAGLIA, J.

Clark Andrew Hutchison, Appellant, was indicted on two counts of sexual abuse of a minor in violation of Section 3-602(b)(2) of the Criminal Law Article, Maryland Code (2002, 2012 Repl Vol., 2018 Supp.),^[1] four counts of second-degree rape in violation of Section 3-304 of the Criminal Law Article,^[2] and four counts of third-degree sexual offense in violation of Section 3-307 of the Criminal Law Article.^[3] At the jury trial, the Child^[4]testified about the abuse she alleged to have endured by Hutchison, and recorded statements previously made by her to a social worker, Angela Brewington, in which the Child disclosed the abuse, were also admitted, pursuant to a pretrial ruling made by the motions judge.

Hutchison, thereafter, was found guilty by the jury of the two counts of sexual abuse of a minor and three counts of third-degree sexual offense,^[5] but not guilty of three counts of second-degree rape. The trial judge then sentenced Hutchison to twenty-five years' incarceration for sexual abuse of a minor by a household member,^[6] as well as consecutive ten-year sentences for each of the three counts of third-degree sexual offense, with twenty years suspended.

On appeal, Hutchison presents two questions for our review:

1. Did the lower court err in finding [the Child's] statement to the social worker was admissible under Md. Crim. Proc. Art. § 11-304?

2. Was the evidence sufficient to support Mr. Hutchison's convictions beyond a reasonable doubt?

Before we delve into answering Hutchison's questions, however, we sua sponte address whether the convictions and sentences for two of the three third-degree sexual offenses should be vacated as illegal sentences under Maryland Rule 4-345(a), which provides: "The court may correct an illegal sentence at any time."

We shall vacate the convictions and sentences for two of the three third-degree sexual offense convictions (Counts 8 and 9), that were suspended, even though no one has challenged them. We do so pursuant to the provisions of Rule 4-345(a) and its interpretation by our Supreme Court (then the Court of Appeals of Maryland^[7]) in Waker v. State, 431 Md. 1, 8 (2013), when Judge John C. Eldridge, the opinion's author, recognized that, "[The Supreme Court] has gone so far as to vacate, sua sponte, a sentence which was, according to the Court, 'illegal' within the meaning of Rule 4-345(a) even though no party, at any time, complained about the particular sentence."

An illegal sentence "is one in which the illegality inhered in the sentence itself; i.e., there either had been no conviction warranting any sentence for the particular offense or the sentence is not a permitted one for the conviction upon which it was imposed for and, for either reason, is intrinsically and substantively unlawful." Colvin v. State, 450 Md. 718, 725 (2016) (quoting Chaney v. State, 397 Md. 460, 466 (2007)). One such type of illegal sentence occurs "where no sentence or sanction should have been imposed," such as when a trial court "lack[s] the power or authority to impose the contested sentence." Johnson v. State, 427 Md. 356, 368-70 (2012) (citing Alston v. State, 425 Md. 326, 339 (2012)).

A sentence for multiplicitous convictions is illegal under Rule 4-345(a), as no one can be convicted or sentenced for the same offense contained in multiple charges. Brown v. State, 311 Md. 426, 432 n.5 (1988) ("In Ball v. United States, 470 U.S. 856, 864-65 (1985), the Supreme Court held that both multiple convictions and multiple sentences come within the double jeopardy prohibition against multiple punishment for the same offense."). "Multiplicity is the charging of the same offense in more than one count." Brown, 311 Md. at 432 n.5. "The vice of multiplicity is that it may lead to multiple convictions and sentences for the same offense[.]" Id.

In explaining whether counts are multiplicitous, the analysis begins with the "unit of prosecution." Georges v. State, 252 Md.App. 523, 539 (2021). "The unit of prosecution of a statutory offense is generally a question of what the Legislature intended to be the act or course of conduct prohibited by the statute for purposes of a single conviction and sentence." Brown, 311 Md. at 434.

To determine the unit of prosecution with respect to the charge of third-degree sexual offense, Section 3-307(a)(3) of the Criminal Law Article provides, in pertinent part: "A person may not.. .engage in sexual contact with another if the victim is under the age of 14 years, and the person performing the sexual contact is at least 4 years older than the victim[.]" "Sexual contact" is defined as "an intentional touching of the victim's or actor's genital, anal, or other intimate area for sexual arousal or gratification, or for the abuse of either party." Section 3-301(e) of the Criminal Law Article.

In Georges v. State, 252 Md.App. 523, 539 (2021), a case involving multiplicity, we examined the unit of prosecution for third-degree sexual offense and determined that the "dominant actus reus is non-consensual sexual contact." We concluded that "each such sexual contact is a viable unit of prosecution," which "may be charged separately and may be the subject of separate convictions." Id. at 541. In Georges, however, the distinct acts of sexual contact were touching the victim's breasts and touching her buttocks, albeit in the same criminal episode, but each charged as separate offenses in the indictment, such that Georges was "properly convicted of and punished for two separate and distinct acts of particularized non-consensual sexual contact." Id. at 543, 545-46.

In the present case, Hutchison was charged in Counts 7, 8, 9, and 10 with third-degree sexual offenses. Each count contained identical language, without any factual or temporal differentiations:

THAT CLARK ANDREW HUTCHISON, between the 1^st day of May, 2019 and the 1^st day of September, 2019, in Wicomico County, State of Maryland, did unlawfully commit a sexual offense in the third degree upon [the Child] in violation of CR 3-307 of the Annotated Code of Maryland, contrary to the form of the Act of Assembly in such cases made and provided, against the peace, government and dignity of the State.

During jury instructions, the trial judge provided the following instruction as to the three remaining charges of third-degree sexual offense, after the fourth count had been removed by him from consideration by the jury:

Sexual offenses, third degree sexual offense. The defendant is charged with the crime of third-degree sexual offense. In order to convict the defendant of third-degree sexual offense, the State must prove: one, that the defendant had sexual contact with [the Child]; two, that [the Child] was under 14 years of age at the time of the act; and three, that the defendant is at least 4 years older than [the Child].

Sexual contact means the intentional touching of [the Child's] genital or anal area or other intimate parts for the purposes of sexual arousal or gratification or for abuse of either party. It does not include acts commonly expressive of familial or friendly affection or acts for accepted medical purposes.

On the verdict sheet presented to the jurors, each third-degree sexual offense was identified in identical language, without any distinction: "Sex Offense Third Degree - Touching of [the Child's] vagina."

The only inference as to why there were three counts of third-degree sexual offense charged was in the State's closing argument, when the prosecutor explained that there were three counts of second-degree rape (for which Hutchison later was acquitted by the jury), "because [the Child] said [it] happened three to four times," before the prosecutor described the elements of third-degree sexual offense:

Sex offense third degree, again, three acts. Sex offense third degree does not require penetration. So for sex offense third degree is any touching whether over top or underneath. So the same for rape second degree, over top or underneath clothing. There doesn't have to be skin to skin contact. Any kind of touching of her private parts by his hand or any of his body parts for sexual gratification is sufficient for third degree sex offense. And, again, that she be under the age of 14. He is at least 4 years older than her.

During the State's opening, the prosecutor also had stated, "[Hutchison's] facing charges of sexual abuse of a minor; rape in the second degree; and third-degree sex offense." The State then posited that the Child would be testifying to the alleged abuse by Hutchison that occurred "several times on several occasions." The Child did testify that the abuse occurred on three or four occasions on different weekends during the summer of 2019, without any differentiation as to time, location, or any other factor.

In the present case, neither the counts of the indictment nor the jury instructions or the verdict sheet distinguished in any way among the three charges of third-degree sexual offense. While Hutchison could have been convicted of one count of third-degree sexual offense, were the evidence sufficient, he could not have been convicted and sentenced for the two other charges of third-degree sexual offense, because they were repetitions of the single count without any distinction and as a result, multiplicitous. We, consequently, vacate the convictions and sentences for the second and third counts of third-degree sexual offense (Counts 8 and 9).^[8] See Johnson v. State, 427...