required evidence test in Maryland

2024The Supreme Court of Maryland recently summarized the rule as follows: “If . . . the required evidence test is not fulfilled . . . we move to a separate inquiry: whether the principle of statutory construction known as the rule of lenity requires merger.” Khalifa v. State, 382 Md. 400, 433 [] (2004)[.] “As it is a principle of statutory construction, the rule of lenity applies where both offenses are statutory in nature or where one offense is statutory and the other is a derivative of common law.” Khalifa, 382 Md. at 434 [.] “[I]f we are unsure of the legislative intent in punishing offenses

2022“The required evidence test focuses on the elements of each crime in an effort to determine whether all the elements of one crime are necessarily in evidence to support a finding of the other, such that the first subsumed as a lesser included offense of the second.” Monoker v. State, 321 Md. 214, 220 , 582 A.2d 525, 527 (1990) (emphasis added).

2022Put another way, “‘if each offense contains an element which the other does not, there is no merger under the required evidence test even though both offenses are based upon the same act or acts.’” Nicolas v. State, 426 Md. 385, 402 (2012) (quoting State v. Lancaster, 332 Md. 385 , 391–92 (1993)). “‘But, where only one offense requires proof of an additional fact, so that all elements of one offense are present in the other, and where both offenses are based on the same act or acts . . . merger follows.’” Id. (quoting Lancaster, 332 Md. at 391–92).

2022Put another way, “‘if each offense contains an element which the other does not, there is no merger under the required evidence test even though both offenses are based upon the same act or acts.’” Nicolas v. State, 426 Md. 385, 402 (2012) (quoting State v. Lancaster, 332 Md. 385 , 391–92 (1993)). “‘But, where only one offense requires proof of an additional fact, so that all elements of one offense are present in the other, and where both offenses are based on the same act or acts . . . merger follows.’” Id. (quoting Lancaster, 332 Md. at 391–92).

2024The Supreme Court of Maryland in Newton held that under “the required evidence test, . . . the felony murder and the underlying felony must be deemed the same for double jeopardy purposes.” Newton, 280 Md. at 268 .

2022“Thus, under both federal double jeopardy principles and Maryland merger law, the test for determining the identity of offenses is the required evidence test.” Newton, 280 Md. at 268 , 373 A.2d at 266 .

2019Under the required evidence test, “ʻwhere 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 which the other does not.’” Thomas v. State, 277 Md. 257, 265 (1976) (quoting Blockburger, 284 U.S. at 17 304).

2015The required evidence test provides 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 which the other does not.” Blockburger v. United States, 284 U.S. 299, 304 , 52 S.Ct. 180 , 76 L.Ed. 306 (1932); Thomas v. State, 277 Md. 257, 265 , 353 A.2d 240, 245-46 (1976).

2014See, e.g., Miles v. State, 349 Md. 215, 227 , 707 A.2d 841, 847-48 (1998) (“ When two offenses do not merge under the required evidence test, we have applied as a principle of statutory construction the ‘rule of lenity’....’”) (quoting Williams v. State, 323 Md. 312, 321 , 593 A.2d 671, 675 (1991)); Monoker v. State, 321 Md. 214, 222 , 582 A.2d 525, 529 (1990) (noting that, in cases where two offenses do not merge under the required evidence test, “there are nevertheless times when the offenses will not be punished separately”).

2014See, e.g., Miles v. State, 349 Md. 215, 227 , 707 A.2d 841, 847-48 (1998) (“ When two offenses do not merge under the required evidence test, we have applied as a principle of statutory construction the ‘rule of lenity’....’”) (quoting Williams v. State, 323 Md. 312, 321 , 593 A.2d 671, 675 (1991)); Monoker v. State, 321 Md. 214, 222 , 582 A.2d 525, 529 (1990) (noting that, in cases where two offenses do not merge under the required evidence test, “there are nevertheless times when the offenses will not be punished separately”).

2016In applying the required evidence test, “ ‘[w]e examine the elements of each offense and determine whether each provision requires proof of a fact which the other does not[.]’ ” Paige v. State, 222 Md.App. 190, 206 , 112 A.3d 1001 (2015) (quoting Blockburger v. United States, 284 U.S. 299, 304 , 52 S.Ct. 180 , 76 L.Ed. 306 (1932)). “ ‘[IJf all of the elements of one offense are included in the other offense, so that only the latter offense contains a distinct element or distinct elements, the former merges into the latter.’ ” Id. (quoting State v. Jenkins, 307 Md. 501, 517 , 515 A.2d 465 (1986

2016In applying the required evidence test, “ ‘[w]e examine the elements of each offense and determine whether each provision requires proof of a fact which the other does not[.]’ ” Paige v. State, 222 Md.App. 190, 206 , 112 A.3d 1001 (2015) (quoting Blockburger v. United States, 284 U.S. 299, 304 , 52 S.Ct. 180 , 76 L.Ed. 306 (1932)). “ ‘[IJf all of the elements of one offense are included in the other offense, so that only the latter offense contains a distinct element or distinct elements, the former merges into the latter.’ ” Id. (quoting State v. Jenkins, 307 Md. 501, 517 , 515 A.2d 465 (1986

2024The required evidence test 5 is “a long-standing rule of law to determine whether one offense is included within another when both are based on the same act or acts.” State v. Johnson, 442 Md. 211, 218 (2015) (quoting McGrath v. State, 356 Md. 20, 24 (1999)).

2021“If each offense requires proof of a fact which the other does not, or in other words, if each offense contains an element which the other does not, there is no merger under the required evidence test even though both offenses are based upon the same act or acts.” Id. (citations and quotations omitted).

2011In Brooks v. State, 284 Md. 416 , 397 A.2d 596 (1979), the Court of Appeals explained the rule of lenity: [E]ven though offenses may be separate and distinct under the required evidence test, courts occasionally find as a matter of statutory interpretation that the Legislature did not intend, under the circumstances involved, that a person could be convicted of two particular offenses growing out of the same act or transaction.

2011In Brooks v. State, 284 Md. 416 , 397 A.2d 596 (1979), the Court of Appeals explained the rule of lenity: [E]ven though offenses may be separate and distinct under the required evidence test, courts occasionally find as a matter of statutory interpretation that the Legislature did not intend, under the circumstances involved, that a person could be convicted of two particular offenses growing out of the same act or transaction.

2022Common law offenses may constitute a “multi-purpose crime.” State v. Ferrell, 313 Md. 291, 298 , 545 A.2d 653, 656 (1988) (“when a common law offense . . . embrac[es] different matters in the disjunctive, a court in applying the required evidence test must examine ‘the alternative elements relevant to the case at hand.’”) (citations omitted).

2022Common law offenses may constitute a “multi-purpose crime.” State v. Ferrell, 313 Md. 291, 298 , 545 A.2d 653, 656 (1988) (“when a common law offense . . . embrac[es] different matters in the disjunctive, a court in applying the required evidence test must examine ‘the alternative elements relevant to the case at hand.’”) (citations omitted).

2022Put another way, “‘if each offense contains an element which the other does not, there is no merger under the required evidence test even though both offenses are based upon the same act or acts.’” Nicolas v. State, 426 Md. 385, 402 (2012) (quoting State v. Lancaster, 332 Md. 385 , 391–92 (1993)). “‘But, where only one offense requires proof of an additional fact, so that all elements of one offense are present in the other, and where both offenses are based on the same act or acts . . . merger follows.’” Id. (quoting Lancaster, 332 Md. at 391–92).

2022And “‘if each offense contains an element which the other does not, there is no merger under the required evidence test even though both offenses are based upon the same act or acts.’” Nicolas, 426 Md. at 402 (quoting Lancaster, 332 Md. at 391–92).

2014See White v. State, 318 Md. at 748 , 569 A.2d 1271 (statutory offense of child abuse does not merge into common law crime of murder under strict application of the required evidence test, but the offenses still merge because the abuse and subsequent death of the child are so closely connected as to constitute an integral part of the homicide; the child abuse offense is therefore very much like a traditional included offense of murder).

2014See White v. State, 318 Md. at 748 , 569 A.2d 1271 (statutory offense of child abuse does not merge into common law crime of murder under strict application of the required evidence test, but the offenses still merge because the abuse and subsequent death of the child are so closely connected as to constitute an integral part of the homicide; the child abuse offense is therefore very much like a traditional included offense of murder).

2019Dixon v. State, 364 Md. 209, 238 (2001) (“ʻ[w]here there is a merger of a lesser included offense into a greater offense, we are not concerned with penalties—the lesser included offense generally merges into and is subsumed by the greater offense regardless of penalties.’ Spitzinger v. State, 340 Md. 114, 125 , 665 A.2d 685, 690 (1995).”); State v. Lancaster, 332 Md. 385, 404 (1993) (“where there is merger 21 based on the required evidence test, the included offense merges into the offense with the distinct element, regardless of the maximum sentence which each offense carries”).5 We conclude

2015“Under federal double jeopardy principles and Maryland merger law, ‘the principal test for determining the identity of offenses is the required evidence test.’ The required evidence test prohibits separate sentences for each offense if only one offense requires proof of a fact which the other does not.” Christian v. State, 405 Md. 306, 321 , 951 A.2d 832 (2008) (quoting Dixon v. State, 364 Md. 209, 236-37 , 772 A.2d 283 (2001)).

2012We stated in Abeokuto v. State, 391 Md. 289 , 893 A.2d 1018 (2006), that "[w]hen applying the required evidence test to multi-purpose offenses, i.e., offenses having alternative elements, a court must examine the alternative elements relevant to the case at issue." Abeokuto, 391 Md. at 353 , 893 A.2d at 1055 (quoting McGrath, 356 Md. at 24 , 736 A.2d at 1069 ).

2012We stated in Abeokuto v. State, 391 Md. 289 , 893 A.2d 1018 (2006), that "[w]hen applying the required evidence test to multi-purpose offenses, i.e., offenses having alternative elements, a court must examine the alternative elements relevant to the case at issue." Abeokuto, 391 Md. at 353 , 893 A.2d at 1055 (quoting McGrath, 356 Md. at 24 , 736 A.2d at 1069 ).

2024The Supreme Court of Maryland recently summarized the rule as follows: “If . . . the required evidence test is not fulfilled . . . we move to a separate inquiry: whether the principle of statutory construction known as the rule of lenity requires merger.” Khalifa v. State, 382 Md. 400, 433 [] (2004)[.] “As it is a principle of statutory construction, the rule of lenity applies where both offenses are statutory in nature or where one offense is statutory and the other is a derivative of common law.” Khalifa, 382 Md. at 434 [.] “[I]f we are unsure of the legislative intent in punishing offenses

2010Applying the established principle that, “[e]ven where two offenses are separate under the required evidence test, there may still be merger for sentencing purposes based on historical treatment, judicial decisions which hold the offenses merge, fairness, and the rule of lenityt,]” the Court concluded that “the Legislature intended that punishment should be tied to the act of driving and only one sentence per driving episode [should] be permitted.” Id. at 164 , 742 A.2d 493 .

2004It frequently is applied in the context of merger of offenses for sentencing purposes, when the defendant has been convicted of two offenses (either both statutory or one statutory and one a derivative of common law) that do not merge under the required evidence test, but there is "`doubt or ambiguity as to whether the legislature intended that there be multiple punishments for the same act or transaction[.]'" Holbrook v. State, 364 Md. 354, 373 , 772 A.2d 1240 (2001) (quoting Williams v. State, 323 Md. 312, 321 , 593 A.2d 671 (1991) (quoting White v. State, 318 Md. 740, 744 , 569 A.2d 1271 (1

2004It frequently is applied in the context of merger of offenses for sentencing purposes, when the defendant has been convicted of two offenses (either both statutory or one statutory and one a derivative of common law) that do not merge under the required evidence test, but there is "`doubt or ambiguity as to whether the legislature intended that there be multiple punishments for the same act or transaction[.]'" Holbrook v. State, 364 Md. 354, 373 , 772 A.2d 1240 (2001) (quoting Williams v. State, 323 Md. 312, 321 , 593 A.2d 671 (1991) (quoting White v. State, 318 Md. 740, 744 , 569 A.2d 1271 (1

2024The Supreme Court of Maryland recently summarized the rule as follows: “If . . . the required evidence test is not fulfilled . . . we move to a separate inquiry: whether the principle of statutory construction known as the rule of lenity requires merger.” Khalifa v. State, 382 Md. 400, 433 [] (2004)[.] “As it is a principle of statutory construction, the rule of lenity applies where both offenses are statutory in nature or where one offense is statutory and the other is a derivative of common law.” Khalifa, 382 Md. at 434 [.] “[I]f we are unsure of the legislative intent in punishing offenses

2024The Supreme Court of Maryland recently summarized the rule as follows: “If . . . the required evidence test is not fulfilled . . . we move to a separate inquiry: whether the principle of statutory construction known as the rule of lenity requires merger.” Khalifa v. State, 382 Md. 400, 433 [] (2004)[.] “As it is a principle of statutory construction, the rule of lenity applies where both offenses are statutory in nature or where one offense is statutory and the other is a derivative of common law.” Khalifa, 382 Md. at 434 [.] “[I]f we are unsure of the legislative intent in punishing offenses

2021It based its decision on the required evidence test of Blockburger v. United States, 284 U.S. 299 (1932).

2021See Blockburger v. United States, 284 U.S. 299 (1932). 6 offense contains an element that the other does not, then convictions of the two offenses do not merge under the required evidence test.

2021“Merger is the common law principle that derives from the protections afforded by the Double Jeopardy Clause.” Id. at 641 (citing Brooks v. State, 439 Md. 698, 737 (2014)).15 “Under Maryland common law principles, the normal standard for determining whether one offense merges into another” is the required evidence test.

2019The Court of Appeals explained in Brooks v. State, 439 Md. 698, 737 (2014): Merger protects a convicted defendant from multiple punishments for the same offense. [Citing Nicolas v. State, 426 Md. 385, 400 (2012).] Sentences for two convictions must be merged when: (1) the convictions are based on the same act or acts, and (2) under the required evidence test, the two offenses are deemed to be the same, or one offense is deemed to be the lesser included offense of the other.

2011Merger Appellant claims that his convictions for assaulting Officer Schwarz and Officer Moreau should have been merged, for sentencing purposes, into his conviction for resisting arrest because “the assaults were committed ... as part of [his] resisting arrest.” The Court of Appeals has explained that, “[w]here two offenses are based on the same act or acts, and the two offenses are deemed to be the same under the required evidence test, merger follows as a matter of course,” unless “the legislative intent to authorize the imposition of cumulative sentences is clear.” Williams v. State, 323 Md

2011Merger Appellant claims that his convictions for assaulting Officer Schwarz and Officer Moreau should have been merged, for sentencing purposes, into his conviction for resisting arrest because “the assaults were committed ... as part of [his] resisting arrest.” The Court of Appeals has explained that, “[w]here two offenses are based on the same act or acts, and the two offenses are deemed to be the same under the required evidence test, merger follows as a matter of course,” unless “the legislative intent to authorize the imposition of cumulative sentences is clear.” Williams v. State, 323 Md

2022Petitioner argues that misconduct in office is analogous to a “multi-purpose criminal statute” in which this Court “refine[s the required evidence test] by looking at the alternate elements relevant to the case at hand.” Middleton, 318 Md. at 758 , 569 A.2d at 1280 (quoting Nightingale v. State, 312 Md. 699, 705 , 542 A.2d 373, 376 (1988)).

2022Petitioner argues that misconduct in office is analogous to a “multi-purpose criminal statute” in which this Court “refine[s the required evidence test] by looking at the alternate elements relevant to the case at hand.” Middleton, 318 Md. at 758 , 569 A.2d at 1280 (quoting Nightingale v. State, 312 Md. 699, 705 , 542 A.2d 373, 376 (1988)).

2011In Whack v. State, 288 Md. 137, 143 , 416 A.2d 265 (1980), appeal dismissed and cert. denied, 450 U.S. 990 , 101 S.Ct. 1688 , 68 L.Ed.2d 189 (1981), the Court explained: [A]lthough the required evidence test is the normal standard for deciding the allowability of separate sentences, the Legislature may not in certain circumstances intend that separate sentences be imposed for two offenses growing out of the same transaction, even though the two offenses are clearly distinct under the required evidence test.

2011In Whack v. State, 288 Md. 137, 143 , 416 A.2d 265 (1980), appeal dismissed and cert. denied, 450 U.S. 990 , 101 S.Ct. 1688 , 68 L.Ed.2d 189 (1981), the Court explained: [A]lthough the required evidence test is the normal standard for deciding the allowability of separate sentences, the Legislature may not in certain circumstances intend that separate sentences be imposed for two offenses growing out of the same transaction, even though the two offenses are clearly distinct under the required evidence test.

2021Although that is an additional factor counseling against entertaining an unpreserved merger argument based on fundamental fairness on appeal, the primary reason why this Court addressed the appellant’s required evidence and rule of lenity arguments in Pair, but not his fundamental fairness argument, 17 Id. at 649 .

2021Unlike the required evidence test and the rule of lenity, which can “be decided as a matter of law” based on the charges, merger based on fundamental fairness is a “fluid test dependent upon a subjective evaluation of the particular evidence in a particular case.” Id. at 649 .

2019By working off of the premise that battery-assault is a lesser-included offense of robbery, we can conclude that battery-assault has all the elements of robbery, "so that only [robbery] contains [ ] distinct element[s]," Snowden v. State , 321 Md. 612 , 617, 583 A.2d 1056 , 1059 (1991) (explaining the required evidence test, which courts use to determine whether one offense merges into another), and "[l]ike a little fish being eaten by a bigger fish ...[battery-assault] is swallowed by robbery[.]" Gerald , 299 Md. at 140 -41 , 472 A.2d at 979 .

2019By working off of the premise that battery-assault is a lesser-included offense of robbery, we can conclude that battery-assault has all the elements of robbery, "so that only [robbery] contains [ ] distinct element[s]," Snowden v. State , 321 Md. 612 , 617, 583 A.2d 1056 , 1059 (1991) (explaining the required evidence test, which courts use to determine whether one offense merges into another), and "[l]ike a little fish being eaten by a bigger fish ...[battery-assault] is swallowed by robbery[.]" Gerald , 299 Md. at 140 -41 , 472 A.2d at 979 .

2009Conceding that the offenses do not merge under the required evidence test, see Marquardt, supra, 164 Md.App. at 148 , 882 A.2d 900 , he claims that the court “should have merged the offenses under the rule of lenity[,j because the convictions arose out of a single transaction!;,] and there is no indication by the General Assembly of an intent to punish a defendant separately for the offenses in such a situation.” In Marquardt , we stated: The required evidence test is the threshold standard for determining when two offenses merge, but, in addition, we have applied as a principle of statutory c

2009Conceding that the offenses do not merge under the required evidence test, see Marquardt, supra, 164 Md.App. at 148 , 882 A.2d 900 , he claims that the court “should have merged the offenses under the rule of lenity[,j because the convictions arose out of a single transaction!;,] and there is no indication by the General Assembly of an intent to punish a defendant separately for the offenses in such a situation.” In Marquardt , we stated: The required evidence test is the threshold standard for determining when two offenses merge, but, in addition, we have applied as a principle of statutory c

2005The rule of lenity applies where the required evidence test “ ‘might not be adequate to afford the protection against undue harassment embodied in the purpose of the prohibition against double jeopardy.’ ” Brooks v. State, 284 Md. 416, 423 , 397 A.2d 596 (1979) (quoting Cousins v. State, 277 Md. 383, 397 , 354 A.2d 825 (1976)). “[I]f we are unsure of the legislative intent in punishing offenses as a single merged crime or as distinct offenses, we, in effect, give the defendant the benefit of the doubt and hold that the crimes do merge.” Monoker v. State, 321 Md. 214, 222 , 582 A.2d 525 (1990).

2005The rule of lenity applies where the required evidence test “ ‘might not be adequate to afford the protection against undue harassment embodied in the purpose of the prohibition against double jeopardy.’ ” Brooks v. State, 284 Md. 416, 423 , 397 A.2d 596 (1979) (quoting Cousins v. State, 277 Md. 383, 397 , 354 A.2d 825 (1976)). “[I]f we are unsure of the legislative intent in punishing offenses as a single merged crime or as distinct offenses, we, in effect, give the defendant the benefit of the doubt and hold that the crimes do merge.” Monoker v. State, 321 Md. 214, 222 , 582 A.2d 525 (1990).

2024In Maryland, there are “three grounds for merging a defendant’s convictions for sentencing purposes: ‘(1) the required evidence test; (2) the rule of lenity; and (3) the principle of fundamental fairness.’” Koushall v. State, 479 Md. 124, 156 (2022) (quoting Carroll v. State, 428 Md. 679, 694 (2012)).

2022CRIMINAL PROCEDURE – SENTENCING – MERGER “Maryland recognizes three grounds for merging a defendant’s convictions: (1) the required evidence test; (2) the rule of lenity; and (3) the principle of fundamental fairness.” Carroll v. State, 428 Md. 679 , 693–94, 53 A.3d 1159, 1167 (2012) (citation and quotation marks omitted).

2001Under federal double jeopardy principles and Maryland merger law, the principal test for determining the identity of offenses is the required evidence test. 27 Nightingale, 312 *237 Md. at 703, 542 A.2d at 374 (quoting Newton, 280 Md. at 268 , 373 A.2d at 266 ); see Blockburger v. United States, 284 U.S. 299 , 52 S.Ct. 180 , 76 L.Ed. 306 (1932); Williams v. State, 323 Md. 312, 316-17 , 593 A.2d 671, 673 (1991); State v. Frye, 283 Md. 709 , 393 A.2d 1372 (1978); Thomas v. State, 277 Md. 257 , 353 A.2d 240 (1976).

2001Under federal double jeopardy principles and Maryland merger law, the principal test for determining the identity of offenses is the required evidence test. 27 Nightingale, 312 *237 Md. at 703, 542 A.2d at 374 (quoting Newton, 280 Md. at 268 , 373 A.2d at 266 ); see Blockburger v. United States, 284 U.S. 299 , 52 S.Ct. 180 , 76 L.Ed. 306 (1932); Williams v. State, 323 Md. 312, 316-17 , 593 A.2d 671, 673 (1991); State v. Frye, 283 Md. 709 , 393 A.2d 1372 (1978); Thomas v. State, 277 Md. 257 , 353 A.2d 240 (1976).

2018In the merger context, the Court of Appeals has said that "[m]erger occurs as a matter of course when two offenses are deemed to be the same under the required evidence test and 'when [the] offenses are based on the same act or acts[.]' " Nicolas v. State , 426 Md. 385 , 408, 44 A.3d 396 (2012) (quoting Holbrook v. State , 364 Md. 354 , 370, 772 A.2d 1240 (2001) ).

2018In the merger context, the Court of Appeals has said that "[m]erger occurs as a matter of course when two offenses are deemed to be the same under the required evidence test and 'when [the] offenses are based on the same act or acts[.]' " Nicolas v. State , 426 Md. 385 , 408, 44 A.3d 396 (2012) (quoting Holbrook v. State , 364 Md. 354 , 370, 772 A.2d 1240 (2001) ).