Ronald Horald United Statessel v. State

RONALD HORALD USSEL, JR. v. STATE OF MARYLAND

No. 2439

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2013

October 6, 2015

UNREPORTED

Krauser, C.J., ^**Zarnoch, Reed, JJ.

Opinion by Reed, J.

^**Zarnoch, Robert A.J., participated in the conference of this case while an active member of this Court; he participated in the adoption of this opinion as a retired, specially assigned member of this Court.

^*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

A jury in the Circuit Court for Baltimore County convicted Robert Horald Ussel, Jr., appellant, of two counts of second-degree assault and one count of resisting arrest. He received a 10-year sentence for one of the assault convictions and a consecutive 3-year sentence for resisting arrest. The other second-degree assault conviction was merged into the resisting arrest conviction for sentencing purposes. Appellant timely appealed and presents two questions for our review, which we rephrased:¹

1. Did the trial court err in failing to merge appellant's conviction for second-degree assault on Officer Seckens into his resisting arrest conviction?

2. Was the evidence sufficient to support the guilty verdict reached by the jury on the two second-degree assault charges?

For the following reasons, we answer the first question in the negative and the second question in the affirmative. Therefore, we affirm the judgments of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND

On May 6, 2013, Appellant's drinking caused him to get into an argument with his girlfriend about how she was disciplining her children. During the dispute, he called 911 and indicated to the operator that he wanted his girlfriend to leave the house they rented together. At approximately 7:00 p.m., Officer Joseph Seckens was the first to respond to the call, followed by Officers Joseph Harden and Michael Bowman, all of the BaltimoreCounty Police Department. Conflicting testimony was given regarding the events that followed.

Officer Seckens testified that he entered the house and first had a brief conversation with Appellant's girlfriend in the living room. Officer Seckens also testified that during that conversation, Appellant was sitting at the dining room table, being uncooperative, and yelling and screaming. He then entered the dining room and approached Appellant. He immediately smelled a strong odor of alcohol and observed Appellant's glossy eyes and slurred speech. He testified that Appellant continued to act in an aggressive and hostile manner and kept screaming that he wanted his girlfriend out of the house. He also testified that Appellant threatened him, saying "I'm going to fuck you up. You and your family are gonna get yours." In the meantime, Officers Harden and Bowman arrived. Officer Seckens testified that he then tried to convince Appellant to leave; however, instead of leaving, Appellant spit in Officer Seckens' face. Immediately thereafter, Officer Seckens advised Appellant that he was under arrest and, with the help of Officers Harden and Bowman, took him from the chair he was sitting on to the floor. The officers advised Appellant to put his hands behind his back, but he refused to do so. Instead, he made several attempts to stand up and repeatedly kicked his feet. Several of his kicks struck Officer Harden's legs and chest.

Officer Harden also testified. He stated that he witnessed Appellant spit in the face of Officer Secken. In addition, he confirmed Officer Secken's account of what occurred while the officers were attempting to place Appellant under arrest.

Officer Bowman was the last officer to testify. He testified that, because of where he was standing at the time, he did not see Appellant spit on Officer Seckens. However, he confirmed that Appellant refused to allow his hands to be cuffed and wrestled with the officers when they attempted to place him under arrest.

Both Appellant and his girlfriend testified for the defense. Appellant admitted that he was drinking and that an argument ensued between him and his girlfriend over how she was disciplining her children. He also admitted that he called 911, but stated that he doesn't actually remember doing so. He testified that the first thing he remembers is being awakened at his dining room table by Officer Seckens. He stated that after a brief conversation, Officer Seckens took his I.D. and would not give it back. He testified that he asked Officer Seckens why he could not have his I.D. back, and that Officer Seckens' response was something to the effect of: "Don't worry about it, you alcoholic. I'll give you the fucking I.D. back when I feel like it." Appellant indicated that he proceeded to attempt to stand up, but stumbled in doing so. He stated that the sudden movement of his stumbling might have been perceived as a threat by Officer Seckens, who immediately threw him to the ground, causing him to hit his eye on the corner of the wall and become unconscious.

Appellant's girlfriend also testified that Appellant was asleep at the dining room table when the police arrived. She stated that she did not hear any commotion or see Appellant spit or kick at any of the officers. She testified that Appellant fell to the ground after attempting to stand up. She stated that the officers told her to get a towel becauseAppellant's eye was bleeding. After she brought them the towel, they placed Appellant in handcuffs and took him outside to an ambulance.

On December 13, 2013, after hearing all of the above testimony, a jury in the Circuit Court for Baltimore County convicted Appellant of second-degree assault on Officer Seckens, second-degree assault on Officer Harden, and resisting arrest. He was sentenced on the same day to 10 years of imprisonment for his assault on Officer Seckens and 3 consecutive years for resisting arrest. However, his assault on Officer Harden was merged with the resisting arrest for sentencing purposes. Appellant filed a timely appeal on January 7, 2014.

DISCUSSION

I. MERGER OF CONVICTIONS

A. Parties' Contentions

Appellant argues that the trial court erred in not merging his conviction for assault on Officer Seckens into his conviction for resisting arrest. His argument is based on what he perceives to be two significant ambiguities in the record. First, he asserts that the evidence presented at trial could have allowed the jury to conclude that his assault on Officer Seckens, like his assault on Officer Harden, occurred during the arrest while the officers were wrestling with him on the floor. Second, he contends that neither the verdict sheet nor the court's instructions provided any clarity as to whether the assault charge relating to Officer Seckens was based solely on his pre-arrest act of spitting. Because we are required to resolve any ambiguities in his favor, and because assault merges with resisting arrest if it occurred during the arrest, Appellant argues that the trial court shouldhave merged both of his assault convictions-not just his conviction for assault on Officer Harden-into his resisting arrest conviction. Therefore, he asserts that we must vacate his 10-year sentence for assault and remand for a sentence not to exceed 3 years for resisting arrest.

The State argues that the trial court did not err in giving Appellant separate sentences for assault on Officer Seckens and resisting arrest. The State's preliminary argument is that merger of second-degree assault and resisting arrest is never required - even where the assault occurs during the arrest - because, under the required evidence test, each offense contains an element not required by the other. In the alternative that merger is required where the assault occurs during the arrest, the State asserts that merger is still not required in the present case because the record clearly indicates that the jury's sole basis for convicting Appellant of assault on Officer Seckens was his pre-arrest conduct (i.e., his act of spitting Officer Seckens' face). The State concedes that neither the jury instructions nor the verdict sheet clarified the basis for the charge of assault on Officer Seckens, but points out that in closing argument the prosecutor clearly indicated that Appellant was being charged with assault on Officer Seckens for the spitting and assault on Officer Harden for the kicking. And lastly, in the event the first two arguments fail because Appellant is correct that the record is ambiguous as to whether the assault and resisting arrest convictions were based on separate conduct, the State argues that "his three-year sentence for resisting arrest must be merged into his 10-year sentence for second-degree assault" instead of the other way around, and requests that we remand for a new trial rather than simply a new sentencing hearing.

B. Standard of Review

In Britton v. State we noted that "when the trial court is required to merge convictions for sentencing purposes but, instead, imposes a separate sentence for each unmerged conviction, it commits reversible error." 201 Md. App. 589, 598-99 (2011). This is because failure to merge convictions for sentencing purposes when required to do so results in "the imposition of a sentence 'not permitted by law,'" Id. (citing Campbell v. State, 65 Md. App. 498, 510 (1985)), in which "the illegality . . . 'inheres in the sentence itself.'" Britton, 201 Md. App. at 599 (quoting Chaney v. State, 397 Md. 460, 466 (2007)). As we explained in Bishop v. State, where the illegality inheres in the sentence itself, "[w]e 'address the legal issue of the sentencing . . . under a de novo standard of review.'" 218 Md. App. 472, 504 (2014), cert. denied, 441 Md. 218 (2015) (quoting Blickenstaff v. State, 393 Md. 680, 683 (2006)).

C. Analysis

First and foremost, we reject the State's argument that second-degree assault and resisting...