Watts v. State

Barrington Dean Watts v. State of Maryland, No. 17, September Term, 2017. Opinion by
Greene, J.

APPELLATE PROCEDURE—PRESERVATION—RULE 4-325(e)—SUBSTANTIAL
COMPLIANCE

The Court of Appeals held that a trial court’s alleged error when giving jury instructions was
preserved when the party alleging the error substantially complied with Maryland Rule 4-
325(e). The issue was preserved based upon substantial compliance when, as in this case, the
objection is made after the instructions were given, the basis was stated, the trial judge noted
the exception on the record, and then overruled the objection. A particular curative instruction
did not need to be requested to preserve the issue.

CRIMINAL LAW—SECTION 3-201(b)—STATUTORY INTERPRETATION—
ASSAULT STATUTE—DEFINITION OF SECOND DEGREE ASSAULT

The Court of Appeals held that, consistent with the decision in Lamb v. State, 93 Md. App. 422,
428, 613 A.2d 402, 404 (1992), cert. denied, 329 Md. 110, 617 A.2d 1055 (1993), the term
“assault” in Section 3-201(b) of the Criminal Law Article of the Maryland Code includes the
following modalities of second degree assault: battery, attempted battery, and intent to frighten.

CRIMINAL LAW—CRIMINAL PROCEDURE—JURY INSTRUCTIONS—
UNANIMITY INSTRUCTION FOR ASSAULT

The Court of Appeals held that each particular modality of committing a second degree assault
was not an independent and distinct crime, but merely a single violation of the assault statute.
The Court in Robinson v. State determined that the legislative revisions and consolidation of
the assault statute in 1996 intended to create a singular scheme for assault law in Maryland,
necessarily abrogating the common law. 353 Md. 683, 701, 728 A.2d 698, 706 (1999). The
legislative history of the 1996 revisions to the assault statute revealed that the Maryland General
Assembly intended to replicate what it had accomplished when it revised and consolidated the
theft statute. Consistent with this Court’s interpretation of the theft statute in Rice v. State, 311
Md. 116, 126, 532 A.2d 1357, 1361 (1987), a unanimous jury instruction was not required
because violations of the statute only constituted distinct modalities of one crime. Here,
Petitioner was not entitled to have the trial judge instruct the jury to unanimously agree to which
modality of assault Petitioner had committed.
Circuit Court for Montgomery County IN THE COURT OF APPEALS
Case No. 126409C
Argued: November 3, 2017 OF MARYLAND

No. 17

September Term, 2017

______________________________________

BARRINGTON DEAN WATTS

v.
STATE OF MARYLAND

Greene,
Adkins,
McDonald,
Watts,
Hotten,
Getty,
Harrell, Glenn T., Jr. (Senior Judge,
Specially Assigned)

JJ.
______________________________________

Opinion by Greene, J.
______________________________________

Filed: February 20, 2018
 We are asked in this case to review the definition of second degree assault.

Specifically, the question this case presents is whether the revised and consolidated assault

statute, contained in Section 3-201(b) of the Criminal Law Article of the Maryland Code

(2002, 2012 Repl. Vol.), contemplates different crimes, or whether the acts constitute

second degree assault. Petitioner Barrington Dean Watts was convicted in the Circuit

Court for Montgomery County of two counts of first degree assault. Over Petitioner’s

objection, the jury heard instructions on two different variations of second degree assault,

battery and intent to frighten, but was not instructed to reach a unanimous decision about

which iteration occurred here. Petitioner appealed his convictions to the Court of Special

Appeals, which affirmed in an unreported opinion. First, we determine that the objection

made by Petitioner preserved the issue of whether the jury should hear a unanimity

instruction after hearing instructions for both forms of assault. We next determine that the

assault statute contemplates different modalities of committing the singular crime of

second degree assault as opposed to different crimes. Thus, we affirm the judgment of the

Court of Special Appeals.

I.

Based on the evidence at trial, the jury could have found that on November 9, 2014,

Petitioner, Barrington Dean Watts, entered the apartment of Lavasha Harding, pointed a

gun at one of the occupants of the apartment, Andre French, and demanded money. An

altercation transpired, during which Petitioner fired three shots. One bullet struck a

different occupant, Antonio Woods. After a brief struggle, one of the men involved gained
possession of the gun and then detained Petitioner until the police arrived shortly thereafter.

Petitioner was charged with seven crimes,1 including two counts of first degree assault.

Before the trial judge instructed the jury, the prosecutor and Petitioner’s counsel

reviewed the jury instructions with the judge. During those discussions, Petitioner’s

counsel objected to the State’s request for instructions on accomplice liability, conspiracy,

and a special instruction related to the castle doctrine.2 Thereafter, the trial judge instructed

the jury on the law, particularly as it pertained to second degree assault:

Second degree assault. There are two ways that you can commit a second
degree assault. One is, intent to frighten. Assault is intentionally frightening
another person with the threat of immediate offensive physical contact or
physical harm. In order to convict the defendant of assault, the State must
prove, number one, that the defendant committed an act with the intent to
place Andre French and/or Antonio Woods in fear of immediate offensive
physical contact or physical harm. That the defendant had the apparent
ability at that time to bring about the offensive physical contact or physical
harm. And three, that Andre French and/or Antonio Woods reasonably
feared immediate offensive physical contact or physical harm and that the
defendant’s actions were not legally justified.

Battery. Assault is also causing offensive physical contact to another person.
In order to convict the defendant of assault under [a] battery theory, the State
must prove that the defendant caused offensive physical contact or physical
harm to Andre French and/or Antonio Woods. That the contact [was] the
result of an intentional or reckless act of the defendant and was not

1
Petitioner was indicted by the Grand Jury of Montgomery County of the following: 1)
First degree assault; 2) First degree assault; 3) Robbery with a dangerous weapon; 4) Use
of a firearm in the commission of a crime; 5) Conspiracy to commit first degree assault; 6)
Conspiracy to commit robbery with a dangerous weapon; and 7) Conspiracy to use of a
firearm in the commission of a crime.
2
The castle doctrine, not at issue before us now, is an affirmative defense that, under
particular circumstances, permits force against intruders entering one’s home. See Burch
v. State, 346 Md. 253, 283–84, 696 A.2d 443, 458 (1997) (citing Crawford v. State, 231
Md. 354, 361, 190 A.2d 538, 541 (1963)).
2
 accidental. And three, that the contact was not consented to by Andre French
and/or Antonio Woods.3

At the conclusion of the reading of the jury instructions, the judge called the attorneys to

the bench and asked if they took “any exception to the court.” The prosecutor took no

exceptions. Petitioner’s attorney renewed the previous objections as well as noted a new

exception to the assault instruction, and the following exchange occurred:

[DEFENSE COUNSEL]: The defense would now like to reiterate our
previous objections and object to the alternative instruction on assault and
that it’s possible that six jurors could go with one theory, six could go with
another, and there would not be a unanimous verdict for him.

THE COURT: Six could go with one and six could go with the other?

[DEFENSE COUNSEL]: Or some other division of jurors.

THE COURT: Okay. All right. Thank you.

[DEFENSE COUNSEL]: Thank you, Your Honor.

THE COURT: Exceptions noted.

After deliberations, the jury found Petitioner guilty of two counts of first degree assault as

well as the remaining counts against him.

Petitioner appealed his conviction and sentence to the Court of Special Appeals. In

an unreported opinion, the Court of Special Appeals affirmed the Circuit Court. We

3
Of course, in addition to intentionally frightening and battery, there is a third modality of
committing an assault. An assault may be committed in the form of an attempted battery.
See Lamb v. State, 93 Md. App. 422, 428, 613 A.2d 402, 404 (1992) cert. denied, 329 Md.
110, 617 A.2d 1055 (1993).

3
granted certiorari on the following question, slightly rephrased from the question

submitted to this Court:

Are intent to frighten and battery separate assault crimes, thus requiring
individualized jury unanimity?4

Watts v. State, 453 Md. 358, 162 A.3d 838 (2017). Additionally, the State filed a

conditional cross-petition, presenting us with the following question:

Is Watts’s claim of error unpreserved where Watts did not ask for the
unanimity instruction he now claims was mandatory?

Id. Because we determine that the jury instruction issue was preserved, we reach the

substance of the assault issue.

II.

The threshold issue we must address is whether Petitioner has preserved for our

review the alleged jury instruction error. The State contends that Petitioner’s claim of error

with the jury instructions issued by the trial judge was not raised at trial. The State points

to the record as evidence that Petitioner never requested a curative instruction.

Petitioner submits that his counsel’s discussion during the bench conference was

sufficient to preserve an objection to the alleged error. After the trial judge had instructed

the jury, Petitioner’s counsel explained at a bench conference that the jury could possibly

split its decision with regard to the assault crime, with half of the jury believing that

4
The question posed to us in the petition for certiorari was the following:
Are intent to frighten and battery merely varieties of a single crime under
Maryland’s assault statute or are they separate crimes, thus requiring
individualized jury unanimity?
4
Petitioner had committed a battery and the other half believing Petitioner had intentionally

frightened the occupants. Thus, there would be a lack of jury unanimity.

Maryland Rule 4-325(e) governs the preservation of error in jury instructions and

states, in pertinent part, the following:

No party may assign as error the giving or the failure to give an instruction
unless the party objects on the record promptly after the court instructs the
jury, stating distinctly the matter to which the party objects and the grounds
of the objection.

We have explained that the purpose of Rule 4-325(e) is “to give the trial court an

opportunity to correct its charge if it deems correction necessary.” Gore v. State, 309 Md.

203, 209, 522 A.2d 1338, 1340 (1987) (citing Bennett v. State, 230 Md. 562, 568, 188 A.2d

142, 144 (1963)). This Court in Gore explicated the requirements for preserving an alleged

jury instruction error: “[T]here must be an objection to the instruction; the objection must

appear on the record; the objection must be accompanied by a definite statement of the

ground for objection unless the ground for objection is apparent from the record and the

circumstances must be such that a renewal of the objection after the court instructs the jury

would be futile or useless.” Id.

This Court has consistently repeated that the failure to object to an instructional

error prevents a party on appeal from raising the issue under Rule 4-325(e). See, e.g.,

Grandison v. State, 425 Md. 34, 70–71, 38 A.3d 352, 373–74 (2012) (“Grandison’s failure

to raise his objection to the jury instruction in a timely fashion, combined with his failure

to even address the waiver argument before this Court, persuades us to affirm the dismissal

of his motion on this question.”); Savoy v. State, 420 Md. 232, 243, 22 A.3d 845, 852

5
(2011) (“Petitioner was required, but failed, to make a timely objection to the instruction.

He therefore has no right to automatic appellate review of it.”); Miller v. State, 380 Md. 1,

29, 843 A.2d 803, 820 (2004) (“The simple answer is that, as Miller made no objection to

the instruction, he has waived his right to complain about it.”); State v. Rose, 345 Md. 238,

245, 691 A.2d 1314, 1317 (1997) (“The general rule is that the failure to object to a jury

instruction at trial results in a waiver of any defects in the instruction, and normally

precludes further review of any claim of error relating to the instruction.”); Bowman v.

State, 337 Md. 65, 67–68, 650 A.2d 954, 955 (1994) (“[A]ppellate review of a jury

instruction will not ordinarily be permitted unless the appellant has objected seasonably so

as to allow the trial judge an opportunity to correct the deficiency before the jury retires to

deliberate. . . . These principles are embodied in Maryland Rule 4-325(e)[.]”) (citing State

v. Hutchinson, 287 Md. 198, 202, 411 A.2d 1035, 1037 (1980)); Sims v. State, 319 Md.

540, 549, 573 A.2d 1317, 1321 (1990) (“Unless the attorney preserves the point by proper

objection after the charge, or has somehow made it crystal clear that there is an ongoing

objection to the failure of the court to give the requested instruction, the objection may be

lost.”).

Although strict compliance (based upon the record developed at trial) is preferred,

an objection that falls short of that mark may survive nonetheless if it substantially

complies with Rule 4-325(e). See Bennett v. State, 230 Md. 562, 569, 188 A.2d 142, 145

(1963). For example, an attorney failed to preserve an objection when the record contained

only a vague comment that was devoid of a basis for his objection. Bowman, 337 Md. at

68, 650 A.2d at 956 (holding that an attorney failed to preserve an error on appeal when

6
the attorney stated “even though you touched upon it, you really didn’t go into a more

specific kind of imperfect defense of others. But that’s my only comment. I think it was

a little sketchy, even though you incorporated some of it, but it wasn’t exactly what I had

in mind”). This Court reasoned that the jury instruction issue was not preserved because

“[t]he remarks . . . did not constitute an objection to the instruction; he did not offer to the

court a definite statement of the ground for his objection; the reasons for his dissatisfaction

were not apparent from the record; and it certainly cannot be said that further objection

would have been futile or useless.” Id. at 69, 650 A.2d at 956. Likewise, when the basis

of the objection in the trial court differed from the issue raised on appeal, this Court has

determined that the issue was not preserved for review. State v. Smullen, 380 Md. 233,

276, 844 A.2d 429, 454 (2004) (“[Counsel] never claimed that the instruction was, itself,

erroneous. On appeal, the claim was made that the instruction was substantively erroneous

. . . . [T]he issue raised on appeal had not been presented to the trial court and had therefore

not been preserved for review.”).

Although this Court may readily determine in most cases that an issue is not properly

preserved for appellate review, we have also acknowledged that there is “some play in the

joints” in determining whether an issue has been preserved. Sergeant Co. v. Pickett, 283

Md. 284, 289, 388 A.2d 543, 547 (1978). If the record reflects that the trial court

understands the objection and, upon understanding the objection, rejects it, this Court will

deem the issue preserved for appellate review. Id. at 290, 388 A.2d at 547. Instructions

offered to the trial court, in writing, are preserved if the record demonstrates the trial court

considered the requested instructions. Bennett, 230 Md. at 568, 188 A.2d at 145.

7
Additionally, if the trial court recognizes that an effective objection has been made, the

issue has been preserved for appellate review. Id. at 569, 188 A.2d at 145 (“[I]t appears

that the trial court . . . not only believed but subsequently recognized that the defendant had

made an effective objection.”). In theory, if neither strict nor substantial compliance is

found, the last refuge an appellant may seek is to ask for plain error review. See Newton

v. State, 455 Md. 341, 364, 168 A.3d 1, 14 (2017).

In the case sub judice, the alleged jury instruction error has been preserved based

upon the record before us. During the bench conference after the delivery of jury

instructions, Petitioner’s counsel engaged in a brief back-and-forth with the trial judge at

which time Petitioner’s counsel renewed an earlier objection and noted a new objection,

stating as the basis that the jury might not have a unanimous verdict for assault because

“six jurors could go with one theory, six could go with another.” If the trial judge lacked

clarity about counsel’s objection, the record does not reflect it. As a matter of course, the

trial judge noted the exception on the record. Consistent with both Sergeant Co. and

Bennett, this Court holds that the assault jury instruction issue was properly preserved for

appellate review. That Petitioner’s counsel did not request a specific unanimous jury

instruction on the assault charges5 at the time of the objection does not foreclose

preservation of the alleged error. The Maryland Rules do not require that a party request a

5
To be sure, the trial judge gave the general instruction to the jury regarding coming to a
unanimous verdict. The State’s position would require us to accept that an additional
instruction be requested in order for the objection to the jury instruction error to be
preserved.
8
curative jury instruction, and we decline at this time the State’s invitation to impose such

a requirement to preserve the issue of error.

III.

We turn now to the substance of the issue raised by Petitioner: whether battery and

intent to frighten are different crimes, or whether they are simply different modalities of

carrying out second degree assault. Petitioner contends that the trial court erred when it

failed to instruct the jury that it must unanimously agree to the means of committing second

degree assault. Petitioner urges this Court to conclude that assault and battery are distinct

and separate crimes, and therefore the jury instruction should have required a unanimous

consensus as to whether the defendant committed assault by battery or intent to frighten.

Petitioner primarily relies on Ford v. State, 330 Md. 682, 625 A.2d 984 (1993), for his

proposition.

Our inquiry begins with the definition of second degree assault, as defined by

Section 3-201(b) of the Criminal Law Article of the Maryland Code (2002, 2012 Repl.

Vol.) (“assault statute”), which provides:

“Assault” means the crimes of assault, battery, and assault and battery,
which retain their judicially determined meanings.

(quotation marks in original). The General Assembly codified the modern-day assault

statute in 1996 by repealing former Article 27 §§ 12 and 12A, and re-enacting the

consolidated § 12, which provided, in pertinent part:

Except as otherwise provided in this subheading, “assault” means the
offenses of assault, battery, and assault and battery, which terms retain their
judicially determined meanings.

9
Art. 27, § 12(b). The General Assembly codified this language in Chapter 632 of the

1996 Laws of Maryland. In 2002, Art. 27 § 12(b) was repealed and re-enacted without

substantive change in § 3-201(b) of the Criminal Law Article.

A.

Keeping this legislative history in mind, and recognizing that the plain language of

the statute does not resolve whether intent to frighten and battery are separate assault

crimes, we rely on the tools of statutory construction to glean the meaning of second degree

assault. “The cardinal rule of statutory construction is to ascertain and effectuate the intent

of the Legislature. . . . [W]e look first to the language of the statute, giving it its natural

and ordinary meaning[.]” Scriber v. State, 437 Md. 399, 410, 86 A.3d 1260, 1266 (2014)

(quoting Stoddard v. State, 395 Md. 653, 661, 911 A.2d 1245, 1249 (2006)). We read “the

meaning and effect [of the words in the statute] in light of the setting, the objectives and

purposes of the enactment under consideration.” Stoddard v. State, 395 Md. 653, 662, 911

A.2d 1245, 1250 (2006) (quoting Fraternal Order of Police v. Mehrling, 343 Md. 155,

174, 680 A.2d 1052, 1062 (1996)). “If the statutory language is ambiguous or unclear, we

look to legislative history, prior case law, and statutory purpose.” Comptroller of Treasury

v. Phillips, 384 Md. 583, 591, 865 A.2d 590, 594 (2005) (citing Deville v. State, 383 Md.

217, 223, 858 A.2d 484, 487 (2004)). We are to “us[e] all the resources and tools of

statutory construction at our disposal” including “the structure of the statute,” the

“derivation of the statute, comments and explanations regarding it by authoritative sources

during the legislative process,” and “the general purpose behind the statute.” Lillian C.

Blentlinger, LLC v. Cleanwater Linganore, Inc., _ Md. _ (2017).

10
 Section 3-201(b) of the Criminal Law Article plainly states that the words “assault”

and “battery” “retain their judicially determined meanings.” The Floor Report for House

Bill 749 (“H.B. 749”), as well as the Bill Analysis for H.B. 749, explained that,

the Committee to Revise Article 27 felt that there were several areas that
needed to be addressed. First, the terms “assault” and “battery” were subject
to various interpretations. See, e.g., Lamb v. State, 93 Md. App. 422, 613
A.2d 402 (1992) (a fifty-four page discussion on the various meanings of
these terms). Although House Bill 749 retains the common law meaning of
these terms, it is clear under the bill that the term “assault” includes all
aspects of the law on assault and battery.

Indeed, Senate Bill 618 (“S.B. 618”), the counter-part to H.B. 749, included as annotations

to the statute certain “Committee Notes.” Specifically, the annotation to Art. 27, § 12 of

S.B. 618 provided, in full:

COMMITTEE NOTE (COMMITTEE TO REVISE ARTICLE 27): Similar
to the revision of the burglary laws, the Committee has chosen to retain the
judicially determined meanings of the terms “assault”, “battery”, and “assault
and battery”. The meaning of these terms has been extensively developed at
common law and case law. See e.g., Lamb v. State, 93 Md. App. 422 (1992).
Also, as with the burglary revision, the Committee does not intend to
“freeze” the meanings of these terms, but expects that they will continue to
be clarified when appropriate in future case law.

H.B. 749, identical to S.B. 618, included the same Committee Note from the

Committee to Revise Article 27, and this Committee Note was included as part of Chapter

632 of the 1996 Laws of Maryland. The inclusion of the Committee Note as part of the

final House Bill that was enacted as Chapter 632 reflects the General Assembly’s intention

to draw a parallel between the assault statute and the burglary statute as well as its intention

to rely on case law to clarify the meaning of second degree assault. Based upon our

interpretation of the legislative material supporting the enactment of the assault statute in

11
Chapter 632, this Court is persuaded that the General Assembly intended to codify a

singular crime, second degree assault, which may be committed through different

modalities. The current language of Crim. Law Art., § 3-201(b) substantively mirrors the

language of the revised and consolidated Art. 27, § 12(b).

Significantly, the comparison to the theft law informs the Court’s outcome here. In

Rice v. State, we determined that the consolidated theft statute did not require a jury

instruction regarding unanimity. 311 Md. 116, 126, 532 A.2d 1357, 1361 (1987). The

State charged Mr. Rice with various counts of theft, burglary, armed robbery, and related

offenses in connection with a home invasion. Id. at 119–20, 532 A.2d at 1359. With

respect to the jury instructions regarding theft, the trial judge did not require that the jury

reach a unanimous consensus on how Mr. Rice violated the theft statute, but instead

announced “in order for you to find the Defendant guilty, all of you must find that the

Defendant violated Subsection A or Subsection C or both[.]” Id. at 121, 532 A.2d at 1359.

The jury convicted Mr. Rice of multiple crimes, including theft, burglary and armed

robbery. Id. at 120, 532 A.2d at 1359. Mr. Rice appealed and contended that the trial judge

errantly instructed the jury with regard to the theft count because “[t]his error . . . created

the possibility that . . . six jurors [could have] believed [Mr.] Rice violat[ed] subsection

(a) [stealing property] . . . . [and] [t]he other six jurors [could have] believed the opposite

. . . [that] Rice [was] guilty of possessing stolen property but not of taking it himself from

the [residents].” Id. at 122, 532 A.2d at 1360. In so arguing, Mr. Rice advanced the

position that each subsection of the theft statute contained different crimes and that jury

unanimity was, therefore, required. Id. at 123, 532 A.2d at 1360.

12
 In order to determine the validity of Mr. Rice’s arguments, we first turned to the

language of the theft statute and then its legislative history. Rice, 311 Md. at 124, 532 A.2d

at 1361. We observed that “[n]othing in the language of the theft statute or its legislative

history suggests that [the statute] encompasses multiple crimes for jury instruction

purposes.” Id. In doing so, we considered that a report from the Joint Subcommittee on

Theft Related Offenses reflected the General Assembly’s intent to consolidate previously

different crimes into “a single offense.” Id. From there, the Court declared, “It appears to

us the requirement of jury unanimity that [Rice] advocates would place substantial

obstacles in . . . manifest contravention of the intent of the legislature.” Id. at 125, 532

A.2d at 1361. A legislative report from the Joint Subcommittee bolstered our conclusion:

By merging the acts of receiving stolen goods and the acts constituting the
actual stealing into a single offense (i.e., theft) some confusion has been
eliminated. . . . In some instances, courts were confounded by the dilemma
of which inference to draw [as to whether a criminal defendant had stolen
goods or had received stolen goods]. However, now that the act of stealing
and the act of receiving constitute a single offense (i.e., theft), the confusion
is eliminated.

Id. After an extensive review of the legislative history of the consolidation of crimes in

the theft statute, we held that “[stealing and receiving stolen goods] are not autonomous

offenses but rather one crime defined two ways” and therefore “Maryland’s theft statute

[does] not require the jury unanimity that [Rice] seeks.” Id. at 126, 136, 532 A.2d at 1361,

1367.

Rice informs our answer to the question before us. As we previously noted, the

General Assembly intended for the changes to the assault statute to be in lock-step with the

changes to the theft statute. Like the theft statute, nothing in the plain language of Crim.

13
Law Art., § 3-201(b) describes battery, attempted battery, or intent to frighten as separate

crimes. Similar to the revisions made to the theft statute, and its common law burglary

counterpart, the General Assembly sought to simplify and consolidate the law of assault.

Consistent with our interpretation of the theft statute in Rice, here the assault statute refers

to a single crime, second degree assault, derived from what had previously been defined as

“battery,” “assault,” and “assault and battery” in the common law. In 1996, the General

Assembly simply codified what the Court of Special Appeals in Lamb had already

recognized—that second degree assault is a single crime that could be committed via

different modalities. See Lamb v. State, 93 Md. App. 422, 613 A.2d 402 (1992) cert.

denied, 329 Md. 110, 617 A.2d 1055 (1993) (“The word ‘assault’ embraces not only

attempted batteries but also actual batteries, as well as the combination of the two.”).

Further exploration of the legislative history of the assault statute confirms that

second degree assault is a single offense that may be committed by various means. The

Floor Report for House Bill 749 detailed the purpose of the General Assembly. After

referencing the decision in Lamb, the Floor Report reflected the desire of the General

Assembly to consolidate all of the law of assault into the term “assault” when it stated,

“Although House Bill 749 retains the common law meanings of these terms, it is clear

under the bill that the term ‘assault’ includes all aspects of the law on assault and battery.”

Id. (emphasis added).

Both the House and Senate bill history demonstrate the General Assembly’s reliance

on Lamb v. State, a landmark case decided by the Court of Special Appeals, when crafting

14
the revised assault statute that led to the re-enactment of Art. 27, § 12(b).6 Mr. Lamb had

been convicted and sentenced for both assault and battery, among other crimes, and argued

on appeal that assault constituted a lesser included offense of battery and should have

merged with his battery conviction. Id. at 426, 613 A.2d at 404. The Court of Special

Appeals affirmed the trial court and rejected Mr. Lamb’s contention regarding his assault

conviction merging with his battery conviction. The Court of Special Appeals held that an

assault includes each of the following:

1. A consummated battery or the combination of a consummated battery and
its antecedent assault;
2. An attempted battery; and
3. A placing of a victim in reasonable apprehension of an imminent battery.

Id. at 428, 613 A.2d at 404. In Lamb, Judge Moylan explained carefully that “assault”

continued to refer to “attempted battery,” as it traditionally had, but “assault” did not

exclusively refer to attempted battery because of the gradual influence of tort law concepts

on the development of Maryland’s criminal common law. Id. at 435–36, 613 A.2d at 408.

Judge Moylan scrupulously recounted case law over the course of nearly two hundred years

and concluded that the crime of assault also “mirrors the tort [of assault] precisely in terms

of its character and its necessary elements. . . . The critical state of mind on the part of the

victim is to be placed ‘in reasonable apprehension’ of an impending battery.” Id. at 437–

6
The work of the Honorable Charles E. Moylan, Jr., in Lamb has been recognized as
instructive for its detailed history of the crimes of assault and battery. See Snyder v. State,
210 Md. App. 370, 380, 63 A.2d 128, 134 (2013) (“For a full and more thorough scholarly
explanation of the crimes of assault and attempt, as well as the relationship between the
tort concept of assault and the criminal assault, see Lamb[.]”).
15
38, 613 A.2d at 409. In short, “assault” had come to mean both the crime of the “attempted

battery” variety as well as the “intent to frighten” variety. Id.

After detailing the history of the development of the meaning of “assault,” Judge

Moylan expressly addressed that both statutory and case law have, at times, used “assault”

and “battery” interchangeably, or as the phrase “assault and battery.” Id. at 428, 613 A.2d

at 404–05. When “assault” was used to refer to the crime of battery, “assault” meant “a

consummated battery alone.” Id. Therefore, the term “assault” encapsulated the common

law crimes of attempted battery, a consummated battery, and intent to frighten. Id.7

Although the decision in Lamb came before the 1996 revisions to the assault statute,

this Court has had subsequent opportunity to interpret Art. 27, § 12.

B.

Three years after the enactment of the revised and consolidated Art. 27, § 12, this

Court had occasion to consider whether the assault statute repealed the common law crimes

of assault and battery. We answered in the affirmative. Robinson v. State, 353 Md. 683,

694, 728 A.2d 698, 703 (1999) (“We have determined [] that the [1996 assault statutes] as

adopted represent the entire subject matter of the law of assault and battery in Maryland,

7
Petitioner contends that because a battery, an attempted battery, and intent to frighten are
distinct acts, each must constitute a distinct crime. As we held with regard to theft in Rice
v. State, Maryland’s consolidated assault statute “constitutes a single crime; and . . . the
[modalities] merely specify different acts or transactions through which [the single crime]
can be proved.” 311 Md. 116, 124, 532 A.2d 1357, 1361 (1987) (citing Jones v. State, 303
Md. 323, 338, 493 A.2d 1062, 1069–70 (1985). And, following the reasoning in Rice,
where we explained that “either inference, whether of larceny or of possessing stolen
goods, would lead to the conclusion that the defendant was guilty of theft[,]” we agree that,
here, an inference of battery, assault, or intent to frighten would lead to the conclusion that
the defendant was guilty of assault. See id. at 125–26, 532 A.2d at 1361.
16
and as such, abrogate the common law on the subject.”). Reviewing the history of the

consolidation and revision of the assault statute, the Court deduced the following:

By subsuming and combining all statutory offenses of assault then existent
as well as all common law forms of assault and battery into a single and
comprehensive statutory scheme, the 1996 assault statutes represent the
entire subject matter of assault crimes. We therefore conclude that the new
assault statutes, effective October 1, 1996, abrogated the common law
offenses of assault and battery.

Id. at 696, 728 A.2d at 703–04. Noteworthy is a brief discussion of a revision to Section

9-106 of the Courts and Judicial Proceedings Article of the Maryland Code, which was

also amended in 1996. That statute dealt “with the admission of testimony from a spouse

of a person charged with a crime.” Id. at 697, 728 A.2d at 705. This Court acknowledged

that the Committee to Revise Article 27 had appended a statement about assault to the

amended Cts. and Jud. Proc. Art., § 9-106. The Committee Note provided:

The revision of the assault laws replaces the common law crime of assault
and battery with the statutory crimes of assault in the first or second degree.

Id. at 697, 728 A.2d at 705 (emphasis in original).8

This Court then compared the legislative action in revising and consolidating the

assault statute to what the General Assembly did in revising and consolidating the statutory

crimes of theft and escape. Id. at 699–700, 728 A.2d at 705–06; see West v. State, 312 Md.

8
The Robinson Court noted its “cognizan[ce] that ‘the Committee Notes and catchlines
contained in this Act are not law,’ we nonetheless find this statement persuasive evidence
of the legislative intent to abrogate common law assault and battery.” Robinson v. State,
353 Md. 683, 697–98, 728 A.2d 698, 705 (1999) (internal citations omitted). Likewise,
when we review for the legislative purpose of the revisions with regard to answering the
question before us now, we find the Notes accompanying the statutory revisions persuasive
in developing our understanding of the General Assembly’s intent. Id.

17
197, 539 A.2d 231 (1988) (holding that the theft statute revisions and consolidation

abrogated the common law crime of larceny); see also Watkins v. State, 42 Md. App. 349,

400 A.2d 464 (1979) (holding that the escape statute revisions and consolidation abrogated

the common law crime of escape). That comparison led the Court to the unmistakable

conclusion that the “adoption of the assault statutes abrogated the common law crimes of

assault and battery[.]”9 Robinson, 353 Md. at 701, 728 A.2d at 706. As we acknowledged

in Nicolas v. State, the abrogation of the common law as held in Robinson remained good

law. 426 Md. 385, 403, 44 A.3d 396, 406 n.4 (2012); see also Christian v. State, 405 Md.

306, 319–20, 951 A.2d 832, 839–40 (2008).

Both the Court of Special Appeals’ holding in Lamb and this Court’s holding in

Robinson undermine Petitioner’s claim here. Lamb held that the common law term

“assault” referenced three distinct acts: battery, attempted battery, and intent to frighten.

93 Md. App. at 428, 613 A.2d at 404–05. The holding in Robinson, interpreting the 1996

9
Petitioner relies upon multiple cases in advancing his contention that assault and battery
consist of distinct crimes. Petitioner cites to Woods v. State, 14 Md. App. 627, 288 A.2d
215 (1972), State v. Duckett, 306 Md. 503, 510 A.2d 253 (1986), Snowden v. State, 321
Md. 612, 583 A.2d 1056 (1991), and Wieland v. State, 101 Md. App. 1, 643 A.2d 446
(1994), all of which predate the legislative revisions and consolidation of the assault statute
and therefore do not account for the import of those changes. See Robinson v. State, 353
Md. 683, 694, 728 A.2d 698, 703 (1999). Petitioner refers to Nicolas v. State, a case
undercutting the very argument Petitioner advances. 426 Md. 385, 403, 44 A.3d 395, 406–
07 (2012) (describing battery as one variety of assault). Lastly, Petitioner uses Pryor v.
State, which also contravenes his argument. 195 Md. App. 311, 335, 6 A.3d 343, 357
(2010) (explaining “[t]here are three forms of assault: the intent to frighten, an attempted
battery, and a battery”) (citing Christian v. State, 405 Md. 306, 316–22, 951 A.2d 832,
838–41 (2008)). The mere fact that Petitioner supplies cases drawing a distinction between
assault and battery in no way undermines our holding, nor does it fully grasp the
implications of the 1996 revisions to the assault statute discussed in Robinson.
18
revisions and consolidation of the assault statutes into Art. 27 § 12(b), reflected that

principle: that what had previously existed in the common law was, and is presently,

reflected in the singular scheme of the assault statute. 353 Md. at 697, 728 A.2d at 705.

Therefore, regardless of the particular modality, be it battery, attempted battery, or intent

to frighten, each were considered “assaults” at common law according to Lamb and each,

after 1996, were considered second degree assault according to Robinson.10

C.

Given the legislative history of § 3-201(b), the parallel purposes of the General

Assembly in revising the theft and assault statutes, as well as the seminal cases of Lamb

and Robinson, we are compelled to conclude that the various modalities of assault, battery,

and intent to frighten each constitute second degree assault. Thus, with respect to the

question of whether the jury instruction required unanimity on the assault charges, we

10
Petitioner provides to this Court, as persuasive authority, State v. Weldy, a case in which
Montana’s Supreme Court interpreted Montana’s assault statute as contemplating different
crimes. 902 P.2d 1, 6 (Mont. 1995). Petitioner commits the very error of which the
Montana court warned in that case. The Montana Supreme Court cited Schad v. Arizona,
501 U.S. 624, 111 S. Ct. 2491, 115 L. Ed. 2d 555 (1991), a case in which the United States
Supreme Court held that different elements enumerated within a single statute did not
necessarily result in the legislature establishing multiple crimes. Id. (“[T]he United States
Supreme Court held that it is erroneous to assume that statutory alternatives are ipso facto
independent elements defining independent crimes under state law. ‘In point of fact . . .
legislatures frequently enumerate alternative means of committing a crime without
intending to define separate elements of separate crimes[.]’”) (citing Schad v. Arizona, 501
U.S. 624, 111 S. Ct. 2491, 115 L. Ed. 2d 555 (1991)). The Montana Supreme Court
recognized that interpreting criminal statutes requires more than generalizing, and therefore
we do not find Montana Supreme Court’s interpretation of the Montana assault statute
persuasive in interpreting our own assault statute, in light of our distinctive common law
and the assault statute’s history.

19
answer in the negative. The reasoning in Rice applies with equal force to the facts of this

case, and we will not depart from the conclusion that when a statute has outlined different

means of violating a single crime, jury unanimity on the modality of the violation is

unnecessary on which particular modality occurred. See Rice, 311 Md. at 126, 532 A.2d

at 1361. Because battery, attempted battery, and intent to frighten all constitute second

degree assault, the trial judge did not err when he did not provide a specific unanimity

instruction.

Rather than utilizing Lamb or Robinson to advance his argument, Petitioner instead

turns to Ford v. State, 330 Md. 682, 625 A.2d 984 (1993). Petitioner's reliance on Ford v.

State, a case decided after Lamb but prior to the 1996 assault statute revisions, is unavailing.

Ford merely reiterates the common law approach to assault and battery insofar as the term

“assault and battery” may act as a catch-all at times by referring to either an “assault” or

“battery.” Id. at 700, 625 A.2d at 992. Petitioner seizes upon one line in Ford where the

Court stated that “[a]ssault and battery are two closely related but distinct crimes.” Id. at

699, 625 A.2d at 992. In the same breath, we noted the complexity of the history of assault

and battery in that “[they] constitute a generally recognized common law exception to the

rule against duplicitous charges” in that “[t]hey are often charged in one count” as part of

a “practice [that] is long-standing.” Id. at 700, 625 A.2d at 992. To whatever extent the

single statement in Ford upon which Petitioner focuses represented the entire history of

Maryland common law on assault and battery, it no longer did so after consolidation of the

law of assault and battery under Art. 27 § 12 assault statute. See Robinson, 353 Md. 683,

694, 728 A.2d 698, 703 (1999) (“[T]he language of the 1996 assault statutes contain no

20
specific words of repeal or abrogation . . . . We have determined, however, that the statutes

as adopted represent the entire subject matter of the law of assault and battery in Maryland,

and as such, abrogate the common law on the subject.”).

IV.

In conclusion, we hold that when a defendant is charged with assault, a jury need

not agree unanimously as to the means of the violation. So long as the jury unanimously

agrees that the defendant has committed a modality of assault, the jury need not agree as

to how the assault was committed. By definition, under Maryland common law, battery,

attempted battery, and intent to frighten each constitute second degree assault. Therefore,

a trial judge need not instruct the jury to unanimously agree to the particular modality of

second degree assault committed by a defendant. Here, Petitioner was not entitled to such

an instruction.

JUDGMENT OF THE COURT OF
SPECIAL APPEALS AFFIRMED.
COSTS IN THIS COURT TO BE PAID
BY PETITIONER.

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