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In re M.S.

Court of Appeals of Columbia District

October 12, 2017

In re M.S., Appellant.

          Argued June 1, 2016

         Appeal from the Superior Court of the District of Columbia DEL-1678-14 Hon. Florence Y. Pan, Trial Judge

          Daniel S. Harawa, Public Defender Service, with whom James Klein, Shilpa S. Satoskar and Samia Fam, Public Defender Service, were on the brief, for appellant.

          John D. Martorana, Assistant Attorney General, with whom Karl A. Racine, Attorney General, Todd S. Kim, Solicitor General, and Rosalyn C. Groce, Deputy Solicitor General, were on the brief, for appellee.

          Before Blackburne-Rigsby, Chief Judge, [] Thompson, Associate Judge, and FERREN, [*] Senior Judge.

          Blackburne-Rigsby, Chief Judge

         In this appeal, we are asked to determine whether three general sexual abuse offenses merge into the victim-specific offense of second-degree child sexual abuse. Appellant M.S., who was thirteen and fourteen years old during the relevant period, appeals his eight adjudications of delinquency arising from two instances of sexual contact with his younger male cousin, R.J. For each of the two sexual contacts, M.S. was adjudicated delinquent on four counts: second-degree child sexual abuse, D.C. Code § 22-3009; third-degree sexual abuse, D.C. Code § 22-3004; fourth-degree sexual abuse, D.C. Code § 22-3005; and misdemeanor sexual abuse, D.C. Code § 22-3006.[1] He argues that the Double Jeopardy Clause requires merger of his eight counts of sexual abuse into just two counts of second-degree child sexual abuse.

         Based upon the plain language, structure, and legislative history of the Anti-Sexual Abuse Act of 1994 ("ASAA"), as well as our relevant case law, we hold that the offenses of misdemeanor sexual abuse and fourth-degree sexual abuse merge with the offense of second-degree child sexual abuse. However, we hold that the offense of third-degree sexual abuse, which requires proof of force, does not merge with second-degree child sexual abuse. Accordingly, we affirm in part and remand in part for merger consistent with this opinion.

         I. Factual Background

         This case arises from two instances of sexual contact that appellant, who was thirteen and fourteen years old at the relevant times, initiated against his cousin, R.J., who was nine years old. R.J. frequently visited appellant in the spring and summer of 2014 to play video games. On August 9, 2014, while R.J. was playing "Minecraft, " appellant made oral contact with R.J.'s genitals through his pants. He then forced R.J. to lie down, and appellant sat on him to force oral contact with appellant's genitals through his clothing. The activity stopped when R.J.'s father called him downstairs to leave. R.J. described the sexual contact to his father during the drive home, and at some point, it became clear that similar contact between M.S. and R.J. had occurred before. The trial court credited R.J.'s explanation for not reporting sooner: that he did not want to lose access to the better television and game system at appellant's home.

         After R.J. described the incident to his father, on August 9, R.J.'s father immediately drove back to appellant's home and angrily confronted him. Appellant's mother was also present and asked appellant more calmly about the incidents because she wanted to get him help. After initial denials, appellant admitted to sexual contact with R.J. on August 9, 2014, and on at least one prior occasion, during that spring or summer, after appellant's family bought a "smart TV" in March 2014.

         The trial court found that at least two instances of sexual contact occurred, that appellant was at least four years older than R.J. at those times, and that appellant intended to gratify sexual desire through his conduct with R.J. Significantly, the trial court also found: (1) that, in accordance with the third-degree sexual abuse charge, appellant had used force by sitting on R.J., (2) that, in accordance with the fourth-degree sexual abuse charge, appellant had reason to know that R.J. could not appraise the nature of the conduct, and (3) that, in accordance with the misdemeanor sexual abuse charge, R.J. did not consent to the sexual contact. Appellant was adjudicated delinquent on all eight counts (four counts for each incident) and was sentenced to one year of probation, including group therapy and ninety hours of community service. This appeal followed.

         II. Analysis

         The Double Jeopardy Clause "protects against multiple punishments for the same offense." United States v. McLaughlin, 164 F.3d 1, 8 (D.C. Cir. 1998) (citation and internal quotation marks omitted); see also United States v. Mahdi, 598 F.3d 883, 887 (D.C. Cir. 2010) (citation omitted). To determine whether convictions merge, we apply the default rule articulated in Blockburger v. United States, 284 U.S. 299, 304 (1932), which states that "where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact the other does not." See D.C. Code § 23-112 (2012 Repl.); Byrd v. United States, 598 A.2d 386, 389-90 (D.C. 1991) (en banc) (adopting Blockburger, in light of D.C. Code § 23-112 (1989), over a "pure fact-based analysis"). The Blockburger analysis applies unless the legislature has clearly indicated a contrary intent with respect to the particular offense at issue. See Byrd, supra, 598 A.2d at 389; Blackledge v. United States, 871 A.2d 1193, 1196 (D.C. 2005).

         Appellant argues that merger of his sexual abuse adjudications is required both under the Blockburger test and as a matter of legislative intent.[2] The government counters that each crime contains a unique element on its face, precluding merger under Blockburger, and that the legislative history of the ASAA indicates that all four sexual abuse charges may be brought for the commission of a single act.

         All four of the criminal code provisions under which appellant was charged were enacted under the ASAA in 1994. See D.C. Council, Report on Bill 10-87 (Sep. 28, 1994). The Council of the District of Columbia ("D.C. Council" or "Council") stated that the purpose behind the ASAA was to "strengthen and reform the existing laws against rape and sexual abuse in the District of Columbia." Id. at 1. In line with this purpose, the ASAA "modernize[d] the District's antiquated rape and sexual assault laws" by "creating graded offenses for sexual assaults of varying [degrees of] severity[.]" Id. at 2. In addition to creating graded forms of sexual abuse, the Council also grouped the sex offenses into different categories. Relevant here, the first category of the ASAA consists of general sexual abuse offenses, which do not require a specific victim, while the second category of the ASAA addresses sexual abuse against children[3] and minors in particular. See D.C. Code §§ 22-3002 to 22-3006 (general sexual abuse offenses); 22-3008 to 22-3010.02 (sexual abuse offenses against children and minors); Davis v. United States, 873 A.2d 1101, 1104 (D.C. 2005).

         Upon reviewing the legislative history of the ASAA, we see no clear expression of the D.C. Council's intent as to whether or not the crimes of the ASAA should merge. While the Council stated in its Committee Report for the ASAA that it sought to "make the laws governing sexually abusive conduct more inclusive, flexible[, ] and reflective of the broad range of abusive conduct which does in fact occur, " Rep. on Bill 10-87 at 1, this expression by the Council does not indicate whether it intended to allow multiple convictions based upon the same act. Neither does the Council's creation of "graded offenses for sexual assaults" and its separation of the sexual assault offenses into different categories, indicate whether the Council intended that each instance of sexual conduct would be prosecuted as just one corresponding offense even if it satisfies the elements of other ASAA offenses.[4]

         Furthermore, the D.C. Council has not provided explicit guidance on merger of offenses under the ASAA, as it has done in other contexts. See, e.g., D.C. Code § 22-3203 (a) (2012 Repl.) (providing for multiple convictions for theft, identity theft, fraud, credit card fraud, unauthorized use of a vehicle, commercial piracy, and receiving stolen property, but only concurrent sentences). Thus, because the Council's intent on merger of offenses under the ASAA is not clear, we must analyze each offense at issue under the Blockburger test. See Parker v. United States, 692 A.2d 913, 916 (D.C. 1997) (quoting Missouri v. Hunter, 459 U.S. 359, 367-68 (1983)) (emphasis in original) (stating that the Blockburger test is applied to determine merger of offenses unless there is "a clear indication of contrary legislative intent").

         A. The Blockburger Test

         When applying the Blockburger test, we compare the elements of the relevant offenses to determine "whether each provision requires proof of a fact the other does not." 284 U.S. at 304; see also Byrd, supra, 598 A.2d at 389. Both parties claim to prevail under the Blockburger analysis by applying the test differently. The government focuses solely on the language of the elements of each offense. Appellant instead asks whether it is possible to commit one crime without committing the other. The latter approach reflects the correct application of Blockburger. See, e.g., Z.B., supra note 2, 131 A.3d at 355 ("[I]t is not possible to commit robbery without also committing assault, and assault accordingly merges as a lesser-included offense").

         For example, in Tyree v. United States, 629 A.2d 20, 22-23 (D.C. 1993), we considered whether the crimes of carrying a pistol without a license ("CPWL") and possession of an unregistered firearm ("UF") merge. Observing that one could potentially have a non-pistol firearm that was not properly registered stored within her own home (thus committing UF without committing CPWL) and that, conversely, one could carry a registered pistol on the streets without a proper license (thus committing CPWL without committing UF), we concluded that the crimes did not merge under Blockburger. Id. Thus, the facial comparison of the elements was supplemented by a practical inquiry into whether it was possible to commit one offense without at the same time committing the other offense. See also Snell v. United States, 68 A.3d 689, 694 (D.C. 2013) (reaffirming holding of Tyree). On the other hand, in Hawkins v. United States, we considered whether a count of obstruction of justice for influencing truthful testimony should merge with another count of obstruction for causing or inducing a person to withhold truthful testimony. 119 A.3d 687, 703 (D.C. 2015), cert. denied sub nom. Verter v. United States, 136 S.Ct. 1526 (2016). We concluded that the two counts merged because "telling a lie necessarily includes withholding the truth[, ] too, so a person who 'influences' truthful testimony under [D.C. Code § 22-722 (a)(2)(A)] by instructing a person to lie will violate [D.C. Code § 22-722 (a)(2)(B)] as well." Id. (emphasis added).

         This is not to say that Blockburger precludes multiple convictions for a single act; it is axiomatic that the same act can give rise to multiple convictions so long as each crime has a unique element. See, e.g., Richardson v. United States,116 A.3d 434, 439-40, 439 n.2 (D.C. 2015) (stating that the fact-based merger inquiry, in which we looked to whether one crime was "incidental" to another to determine if the offenses merged, had been overruled by Byrd). Nevertheless, "a lesser offense will merge into a greater offense if guilt of the lesser offense 'is necessarily established by proof of the greater offense.'" Ball v. United States, 429 A.2d 1353, 1360 n.13 (D.C. 1981) (quoting Fuller v. United States, 407 F.2d 1199, 1228 (D.C. Cir. 1968) (en banc)). As a result, the Blockburger test examines the elements of the crimes, see Byrd, supra, 598 A.2d at 390 (asking "whether each statutory provision required proof of an element that the other did not"), with the purpose of ascertaining whether it is possible to fulfill the elements of one offense without fulfilling the elements of the other offense. See ...

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