New Maryland “Lesser Included Offense” Opinion

Today, The Maryland Appellate Court decided Love v. State, a case that presents interesting issues of how courts deal with lesser included offenses.

Focus of the Appeal

The primary focus of this appeal is the legal concept of a lesser included offense. Everyone who has watched television or read about criminal trials in a newspaper understands the basic idea.  But what does it really mean, and how does the law deal with this concept.  In this case, the court pinpoints the two critical issues from the start:  1) “What exactly is a lesser included offense?” and 2) “Can a lesser included offense exist in a trial even if it has not been explicitly and independently charged?” A functional question also arises: “How should a trial judge handle a lesser included offense that has not been explicitly and independently charged when submitting issues to the jury for their determination?”

The secondary focus of this appeal is the statutory crime of second-degree assault, as it provides the context for the particular lesser-included offense issue currently under review.

What Is a Lesser Included Offense?

A lesser included offense is a crime composed of some, but not all, of the elements of a more serious crime, and that is considered a less severe offense due to the absence of certain elements. In legal proceedings, a lesser included offense is often closely related to the primary charge and shares some common elements.

So a lesser included offense is kind of like the kid brother of a more serious crime. While it shares some family resemblance with the primary charge, it’s not quite as grown-up in terms of severity. Picture a set of Russian nesting dolls, with the biggest doll representing the most severe crime and the smaller dolls inside representing the lesser included offenses.

Example of How a Lesser Included Offense Works?

Armed robbery presents a good example.  It has three main ingredients: theft, force, and a weapon. Now, take out the weapon from the equation. What are you left with? You are left with a lesser included offense, like simple theft or robbery, which still involves taking someone’s property and using force, but without the added danger of a weapon.

When a jury tries to decide if someone is guilty of a crime, they can consider these lesser-included offenses as alternatives to the main charge. This gives them the flexibility to examine all the evidence and choose the outcome that best fits the story presented in the courtroom. To play out nonsense analogies a bit further, it’s like having different flavors of ice cream to choose from when you’re not quite sure which one hits the spot.

Facts of Love v. State

A statement of charges was filed in the District Court of Maryland, charging Ms. Love with the second-degree assault of an emergency medical technician (EMT)  in violation of Md. Code Ann., Crim. Law (“CL”), § 3-203(b)(2)(iii). This hopefully rarely-used statute I’ve never heard of provides:

A person may not intentionally cause physical injury to another if the person knows or has reason to know that the other is … a firefighter, an emergency medical technician, a rescue squad member, or any other first responder engaged in providing emergency medical care or rescue services.

Sounds like a fair law. We can all agree.  The statute defines “physical injury” as “any impairment of physical condition, excluding minor injuries.” CL § 3-203(c)(1). Whereas second-degree assault is a misdemeanor, punishable by up to 10 years imprisonment and a $2,500 fine, see CL § 3-203(b), second-degree assault of an EMT is a felony, punishable by up to 10 years imprisonment and a $5,000 fine, see CL § 3-203(c)(3).

The EMT testified that Ms. Love became aggressive after the EMTs placed her on the stretcher, with her kicking and screaming, desperately wanting to escape. The EMT described to the jury how Love managed to position her legs over the stretcher as if she was riding a horse, eventually using her leg to forcefully kick the EMT in the thigh area.

We don’t know precisely what happened at this Five Below at Anne Arundel Mills Mall that led to all this.  But we do know that there was also evidence presented at trial suggesting that Ms. Love was guilty of trespassing, in violation of CL § 6-403(b), which provides, in pertinent part: “A person may not remain on private property … of another, after having been notified by the owner or owner’s agent not do so.” In fact, Ms. Love did not dispute the manager of the Five Below store – notified her to leave the premises, and she later re-entered the premise. But she did argue that it was a medical emergency and that she was unaware of what she was doing during the alleged assault.

The jury did not buy it. Ms. Love was convicted in the Circuit Court for Anne Arundel County by a jury, presided over by Judge Mark W. Crooks, of 1) second-degree assault and 2) trespassing on private property. Love appeals, raising two contentions: 1) that Judge Crooks erroneously submitted an uncharged offense to the jury and 2) that the evidence was not legally sufficient to sustain the two convictions.

The Appeal

On Love’s first contention was that the verdict was impermissible because it was for an offense that had never been charged. The appellant argues in her brief that Judge Crooks erred in allowing the jury to consider the lesser charge of simple second-degree assault on A.F. because it had never been explicitly charged in the charging document. Her lawyers argued that Love concluded that her sentence for simple second-degree assault was an illegal sentence that could be corrected “at any time” under Maryland Rule of Procedure 4-345(a).

Who Was on the Maryland Appellate Court Panel?

There were three judges on the panel that heard this appeal:

1. Judge Douglas R. M. Nazarian is a Maryland Appellate Court judge, the state’s intermediate appellate court. He was appointed to the court by Governor Martin O’Malley and began his service ten years ago. Before his appointment, Judge Nazarian served as a Commissioner on the Maryland Public Service Commission and as a partner at the law firm of Heller, Huron, Chertkof, Lerner, Simon & Salzman.
2. Judge Michael Wilson Reed assumed his position on Maryland’s intermediate court in 2014. He was appointed to the court by Democratic Governor Martin O’Malley.  He worked for Peter Angelos office for a number of years before he went to the Baltimore City Circuit Court bench in 2011.
3. Judge Charles E. Moylan Jr. is a retired judge who served on the Maryland Appellate Division.  Maryland lets retired judges serve after they retire. He was appointed to the court in 1990 and held the position of a Senior Judge, sitting specially by designation. Before his appointment to the Maryland Appellate Division, Judge Moylan served as an Associate Judge on the Circuit Court for Baltimore City. His writing is more fun that most judges.  Judge Moylan authored the court’s opinion in this case.

Hagans v. State: The Pivotal Caselaw in Maryland

The court believe that Hagans v. State is the critical case and was stunned – maybe sarcastically – that the defense lawyers didn’t raise it because it is the cornerstone of lesser-included-offense law in Maryland. The ruling thoroughly examines the common law origins of the lesser included offense phenomenon, Maryland’s early adoption of the general common law principle, and its widespread acceptance throughout the common law world. If concluded that a conviction for a lesser included offense is generally permissible even if it hasn’t been separately and explicitly charged. This principle, deeply rooted in common law, has recently come into the spotlight once again.

The core issue in Hagans does align with the heart of the matter here: Can a defendant be convicted of an offense that is a lesser included offense of a charged crime, even if it is not explicitly charged? The defendant in Hagans had been charged with an attempt to commit common law burglary but not with the specific crime of attempted breaking and entering the dwelling house of another. Nonetheless, he was ultimately convicted of the latter.

Every jurisdiction considering the law concerning lesser included offenses has reached the same conclusion: a defendant charged with a greater offense can be convicted of an uncharged lesser included offense. As laid out in Hagans, this principle has been adopted by Maryland and virtually every other jurisdiction in the United States.

The societal value of relying on lesser included offenses is well explained in Hagans. It benefits defendants by giving juries an alternative to a guilty verdict on a greater offense. From the prosecutor’s perspective, it ensures that a defendant may not go free if the evidence fails to prove an essential element for the greater offense. Society benefits, as courts may release fewer defendants acquitted of the greater offense, and the punishment imposed may more accurately reflect the crime committed.

Court Rolls Eyes at Defense’s Controlling Authority

The defendant’s lawyer relied on Johnson v. State, a 2012 Maryland Supreme Court opinion, claiming it as the controlling authority.  It did not go well.

The crux of the defendant’s argument hinged solely on Johnson, asserting that the Court of Appeals’ decision supports vacating the defendant’s conviction and sentence in Count 2.   In Johnson v. State, the defendant argued that the trial court erred in convicting and sentencing him for assault with intent to murder, as it was never charged in the indictment filed against him. The Court of Appeals ruled that a conviction on a charge not contained in the indictment is not allowed, and as such, the conviction’s illegality required it to be vacated.

However, the issue of whether one crime was or was not a lesser included offense within a greater inclusive offense never emerged in the Johnson case. The State did not put forth such a legal argument, and the Johnson opinion had no reason to address the subject, except to expressly disclaim any consideration of it.

In fact, the court was emphatic that the opinion explicitly stated that it was not examining the subject in any capacity, emphasizing that the question of certiorari granted exempted the issue of a lesser included offense from being considered by the court. Additionally, the opinion further clarified that the entire subject of lesser included offenses did not apply to what was considered in the Johnson opinion. The court seemed annoyed by the argument.  I get it, but judges need to keep in mind that you are fighting for a client and you might throw some stupid punches.

The Rest of the Opinion

The court didn’t stop at the Johnson argument, taking the dog for a long walk, explaining how the crime of assault is as old as the common law itself, was brought to Maryland by English colonists in 1634.  The court explained that it has since evolved and diversified over centuries, ultimately codified as a statutory crime in 1996.

The gist is that while the defendant claims she was never charged with simple second-degree assault, the court found that it was implicitly charged as part of the aggravated felony of second-degree assault against an Emergency Medical Technician (EMT) under Sect. 3-203(c). The court highlighted that every element of simple second-degree assault under Sect. 3-203(a) is also an indispensable element of aggravated second-degree assault. Thus, the appellant’s argument that Subsection 3-203(a) is not a lesser included offense directly contradicts the statute itself.

In determining whether a battery has inflicted a “physical injury” instead of a “minor injury,” the court acknowledged that the distinction can be subjective and defy any attempt at mathematical certainty. However, the court emphasized the importance of recognizing the lesser included offense’s implicit presence in such cases, as the verdict can easily fluctuate between aggravated and simple assault based on a fact-finding whim.

The appellant also argued that the assault victim was not formally charged as the second-degree assault victim. The court rejected this argument, stating that the EMT’s presence as the assault victim was always a constant element in the case. Regardless of whether the assault was simple or aggravated, the EMT remained the second-degree assault victim. The court ultimately held that the conviction for the lesser included offense of simple second-degree assault was perfectly proper.

Furthermore, the appellant contended that the evidence was not legally sufficient to support their convictions for second-degree assault and trespassing. The court quickly dismissed this contention, finding it to be without merit.

More 2023 Maryland Criminal Appellate Opinions

• Satterfield v. State: post-conviction DNA testing
• Robinson v. State: how much latitude to give trial judges for sentencing (the answer is a lot)

Editor’s Note

The more we write about criminal law, the more call our office gets from potential client. But our firm does not handle criminal cases.