Morgan v. State

252 Md.App. 439

259 A.3d 201

Neil Dennis MORGAN

v.STATE of Maryland

No. 2288, Sept. Term, 2019

Court of Special Appeals of Maryland.

September 8, 2021

Submitted by: Stephanie Asplundh (Paul B. DeWolfe, Public Defender, on brief), Baltimore, MD, for Appellant.

Submitted by: Virginia S. Hovermill (Brian E. Frosh, Attorney General, on brief), Baltimore, MD, for Appellee.

Panel: Leahy, Friedman, Wells, JJ.

Wells, J.

Studies show that each year approximately one-third of Marylanders, both women and men, are the victims of some form of domestic violence. For example, statistics found in the 2020 report of the National Coalition Against Domestic Violence reveal that, "34.4% of Maryland women and 28.8% of Maryland men experience intimate partner physical violence, intimate partner rape and/or intimate partner stalking."¹ "Domestic Shelters," an organization which offers information for women who want to leave abusive relationships and seek refuge from their abusers, notes that "one in four women in the United States will experience domestic violence in their lifetime, most frequently by someone they know." Domestic Shelters’ website also lists these alarming statistics: "Female victims most commonly first experience domestic violence between the ages of 18-24 (38.6%), followed by age 11-17 (22.4%), age 35-44 (6.8%) and age 45+ (2.5%)." And that "[a]lmost one out of five or 16.3% of murder victims in the U.S. were killed by an intimate partner; women account for two out of three murder victims killed by an intimate partner."²

Appellant, Neil Dennis Morgan, argues that we must apply the required evidence test in our analysis of the question that he presents on appeal, but the result is disturbingly incongruous as illustrated in the following scenario: A defendant who is subject to an order of protection from domestic violence, violates the order by, for example, assaulting their spouse. The State charges the defendant with violating the domestic violence statute and second-degree assault. But upon conviction of both the violation of the protective order and the assault that stemmed from it, the defendant may only be sentenced for the violation of the protective order. The second-degree assault, by necessity, must merge into the protective order violation under the required evidence test.³ That is what Mr. Morgan argues should have happened below.

There, a jury sitting in the Circuit Court for Harford County found Mr. Morgan guilty of assault in the second degree and violation of a protective order. The court sentenced Mr. Morgan to concurrent terms of ten years’ imprisonment, all but eighteen months suspended,⁴ for second-degree assault and 90 days for violation of the protective order. Mr. Morgan then noted this appeal, raising a single question—whether, applying the required evidence test to the circumstances of this case, second-degree assault merges into violation of the protective order.

For the reasons we discuss, the imposition of separate sentences for each of Mr. Morgan's convictions did not violate Double Jeopardy. Under State v. Lancaster , 332 Md. 385, 392, 631 A.2d 453 (1993), for two offenses to merge they must share the same elements. Here, second-degree assault does not merge into violation of a protective order for several reasons. First, Mr. Morgan was convicted of a crime as well as a violation of a civil order. More to the point, the domestic violence protective order statute exists in the realm of domestic law; it was not codified in the criminal law article. Second, a protective order violation is not an offense that has elements, like a criminal offense. Third, second-degree assault is not enumerated in the statute as an "element" of a violation of a protective order.

However, where two offenses arise from the same conduct, and where there is uncertainty as to whether the legislature intended for their sentences to merge, the Rule of Lenity requires that the offense carrying the lesser maximum penalty merge into the offense carrying the greater maximum penalty. As such, Mr. Morgan's sentence for violation of a protective order should merge into his sentence for second-degree assault.

FACTUAL AND PROCEDURAL BACKGROUND

Mr. Morgan and the victim, Larissa Costa, previously had been romantically involved and had two young sons. Ms. Costa had physical custody of the boys, and Mr. Morgan had visitation twice a week. Before the time of the offenses here, on "multiple" occasions, a domestic violence protective order had been issued against Mr. Morgan, and, at the time of the offenses, such an order was in effect.

Under the terms of that protective order, which, among other things, enjoined Mr. Morgan from entering Ms. Costa's Bel Air residence, the pair would meet at a Walmart in Fallston to exchange the children on Mr. Morgan's visitation days. On Saturday, November 3, 2018, one of the days when Mr. Morgan was entitled to visitation, Ms. Costa was moving to another residence. Because she needed help in moving some of her furniture, she asked Mr. Morgan to come to her residence rather than meeting at the Walmart, and he did so.

Mr. Morgan arrived during the day, and, after helping Ms. Costa remove the television from its wall mount and packing it in her car, he left with the children. He returned between 8:00 and 9:00 p.m. with the children and an argument erupted between him and Ms. Costa. She told Mr. Morgan to leave and threatened to call the police. Instead of immediately leaving, Mr. Morgan grabbed her cell phone and then tried to leave. Ms. Costa followed him and reached into his back pocket in an attempt to retrieve her phone. Mr. Morgan wrestled Ms. Costa to the ground in the parking lot as she screamed and cried.

Several neighbors overheard the commotion. They intervened to break up the struggle, while one of them called 911. After one of the neighbors freed Ms. Costa from Mr. Morgan's grasp, she was able to recover her cell phone. She then went to her apartment to retrieve her children so that she could take them to a safe place. After she placed them in her vehicle and attempted to drive away, Mr. Morgan forced the driver's door open to prevent her from leaving, but she eventually managed to drive off. Mr. Morgan then left in his own vehicle.

Officers from the Harford County Sheriff's Department responded to the 911 call and interviewed the neighbors as well as Ms. Costa, who by then had returned to the scene. One of the responding deputies observed a "laceration" on Ms. Costa's face. The police took photographs of those injuries. The following day, the police filed a statement of charges in the District Court of Maryland for Harford County, charging Mr. Morgan with assault in the second degree and violation of the protective order "by abusing Larissa Costa."

Upon Mr. Morgan's demand for a jury trial, the case was transferred to the Circuit Court for Harford County. A two-day trial was held, during which Ms. Costa, the neighbors, and one of the responding law enforcement officers testified to the events of November 3rd.

The State's primary, but not exclusive theory, was that Mr. Morgan's assault on Ms. Costa was the act that violated the protective order. Not only did the charging document state as much, but also during opening statement, the prosecutor declared:

The Defendant is charged with assault in the second degree and violating a protective order. For those of you who don't know, a protective order is essentially a court document that says, hey, Mr. Morgan, you are not allowed to assault or harm Ms. Costa. You're going to hear that an assault is a violation of that protective order.

Over the defense's objection, the jury was instructed on the charge of violation of the protective order as follows⁵

In order to convict the Defendant of this crime, the State must prove the following; one, a protective order was issued; two, the protective order required the Defendant, (a), to refrain from abusing or threatening to abuse Larissa [Costa]; (b), to refrain from contacting, attempting to contact or harassing Larissa [Costa] except during the exchanges of the children; (c), to refrain from entering the residence of Larissa [Costa] located at [ ]; (d), to immediately vacate the home of Larissa [Costa] located at [ ]; (3), the Defendant violated the order by; (a), abusing or threatening to abuse Larissa [Costa]; (b), contacting or attempting to contact or harass Larissa [Costa] except as the order provided; (c), entering the residence of Larissa [Costa] located at [ ]; or , (d), failing to immediately vacate the home of Larissa [Costa] located at [ ]; (4), the Defendant knew of the order; and, (5), the protective order was in effect at the time of the alleged violation.

(Emphasis added.)

During closing argument, the prosecutor stated that Mr. Morgan had violated the protective order by failing "to refrain from abusing or threatening to abuse Ms. Costa," by "refrain[ing] from contacting her except for what is laid out in their order," and by failing to observe the prohibition against entering her residence. At one point, in setting forth the terms of the protective order, the prosecutor stated only that the defendant "shall not abuse or threaten to abuse [Ms. Costa] except for as indicated in this order." But the prosecutor then argued that Mr. Morgan had violated the protective order in several different ways: (1) by committing an assault, (2) by failing to exchange the children at the Walmart, and (3) by entering Ms. Costa's residence.

After deliberating twenty-one minutes, the jury found Mr. Morgan guilty of both charges. The court thereafter sentenced him to concurrent terms of ten years’ imprisonment, all but eighteen months suspended, for second-degree assault and 90 days for violation of the protective order. Mr. Morgan then noted this timely appeal.

DISCUSSION

A. Parties’ Contentions

Mr. Morgan contends that, under the facts of this case, his conviction for second-degree assault merges under the required...