State of Maryland v. Kaleem Michael Frazier, No. 45, September Term, 2019. Opinion 

by Hotten, J. 

CRIMINAL LAW—MERGER—FOURTH DEGREE SEXUAL OFFENSE—

SECOND DEGREE ASSAULT 

The Court of Appeals held that, under the merger rule articulated in State v. Lancaster, 332 

Md. 385, 631 A.2d 453 (1993), offenses and their sentences merge for purposes of 

sentencing. The Court declined to overturn Lancaster, citing principles of stare decisis. 

Departure from stare decisis should occur sparingly and is only warranted when precedent 

is “clearly wrong” or when it is plainly obvious that adherence to the decision would result 

in substantial injustice. Neither of those situations were implicated in this case. 

Accordingly, the Court of Appeals affirmed the Court of Special Appeals and held that 

convictions for fourth-degree sexual offense and second-degree assault merge. Therefore, 

the only permissible punishment was the sentence for fourth-degree sexual offense—the 

offense having the additional element. 
Circuit Court for Harford County 

Case No. 12-K-16-001751

Argued: February 6, 2020 IN THE COURT OF APPEALS

OF MARYLAND

No. 45

September Term, 2019

__________________________________

STATE OF MARYLAND

v.

KALEEM MICHAEL FRAZIER 

__________________________________

McDonald,

Watts,

Hotten,

Getty,

Booth,

Biran,

Raker, Irma S. (Senior Judge, 

Specially Assigned),

JJ.

__________________________________

Opinion by Hotten, J.

__________________________________

Filed: July 14, 2020
The events underlying this appeal stem from the sexual assault of a victim1

in 

October 2016, by her then-boyfriend, Kaleem Michael Frazier (“Respondent”). 

Respondent was charged with rape in the second degree (Count I), second-degree sexual 

offense (Count II), fourth-degree sexual offense (Count III), second-degree assault (Count 

IV), and false imprisonment (Count V). On February 24, 2018, Respondent was convicted 

of second-degree assault and fourth-degree sexual offense after a seven-day jury trial in the 

Circuit Court for Harford County. Respondent was sentenced on March 26, 2018 to a 

period of ten years’ incarceration with all but five years suspended for the second-degree 

assault count, and one year for the fourth-degree sexual offense charge to run 

consecutively, followed by supervised probation for a period of five years.

The State presents the following questions for our review:

1. Should this Court reconsider the rule articulated in [State v. Lancaster], 

332 Md. 385[, 631 A.2d 453] (1993), and hold that where two offenses 

are deemed the same for purposes of merger, a court may impose a 

sentence based on the offense that carries the greater penalty? 

2. If the Court permits a sentencing court to impose a sentence available 

pursuant to a lesser-included offense, even if it provides the greater 

penalty, was Respondent’s sentence legal? 

For the reasons discussed infra, we answer the first question in the negative, and in 

light of our resolution of the first question, need not address the second. Accordingly, we

shall affirm the decision of the Court of Special Appeals. 

 

1 To protect the privacy of the victim, we will not to refer to her by name. 
2

FACTUAL AND PROCEDURAL BACKGROUND

Underlying Incident and Trial Court Proceedings2

Respondent and the victim had been involved in a relationship since February of 

2016.3 On the evening of October 3, 2016, the couple attended football practice of the 

victim’s son. Respondent had been drinking and became increasingly agitated with the 

victim.4 Respondent, the victim, and her minor sons returned to her townhome for dinner. 

After the victim prepared her sons for bed and retired to her bedroom, Respondent 

confronted the victim about a text message she had received from the football coach of a 

rival team. The victim informed Respondent that the coach was just a friend, and that a 

few weeks before the incident, his team played against her son. Respondent accused the 

victim of lying about the nature of that relationship.5 He became angry, called the victim 

several disparaging names, grabbed her by the shirt and “pulled [her] up,” forcibly pulled 

her hair, ripping out some of her extensions, and repeatedly called her a liar and a slut. The 

victim also testified that Respondent slapped her across the face, and after locking her in 

the bedroom, forced her to perform oral sex. The victim testified that she was crying as 

 

2 The facts underlying this appeal are summarized from the testimony provided by 

the parties at trial. 

3 Respondent and the victim had known one another for more than ten years and had 

been engaged in a sexual relationship “off and on” throughout that period. 

4 Respondent was upset with the victim because she left his sunflower seeds in her 

car. They argued and Respondent left the area to purchase beer from the liquor store. Upon 

his return, Respondent appeared to be intoxicated. 

5 The victim testified that the entirety of the text message exchange consisted only 

of messages about football. 
3

she told Respondent “no” and asked him to “please stop,” but was afraid to scream for fear 

of waking her sons. When asked about the events that transpired after Respondent locked 

the door, she stated:

So[,] he told me that I was going to suck his dick and I said, no. And he said, 

yes, you are. He was wearing basketball shorts, no shirt, no underwear. He 

told me to take off my clothes. I said, no, I don’t want to. And he then 

grabbed my pants and like pulled me towards him and then took my shirt off 

and then he--I don’t remember how I got on the bed. He got on the bed and 

he had already taken off his basketball [shorts] and he starts taking my head 

and putting it down there and I’m still asking him to please stop. But he 

wouldn’t. 

The victim further testified that she begged Respondent “please, no, don’t do this.” 

According to the victim, Respondent “proceed[ed] to put his penis inside [her]” and 

squeezed her neck and throat as she was laying on her stomach. The victim testified that 

she did not physically resist Respondent because she was “scared he would hurt [her] a lot 

more.” She hoped that Respondent would become unaroused by her running nose, tears,

and repeated pleas to “please stop.” 

Sometime after midnight on October 4, the victim attempted to leave the bedroom. 

Respondent told the victim that she could not leave. When she informed Respondent that 

she just wanted to get something to drink, Respondent followed her to the kitchen, again 

calling her a “slut[]” and a “liar.” The victim testified that Respondent then “grabbed [her]

by the hair” and “slapped [her] in the face again.” After violently pulling her hair and 

slapping her, the victim testified that: “He looks at me and says, ‘do you know what you 

and Nicole Brown Simpson ... have in common? [B]oth of your father’s names are Lou, 

and that is how long I have been thinking about killing you.’” When the prosecution
4

questioned the victim regarding her reaction to the statement, she replied that she did not 

think she was “going to make it through the night.” While in the kitchen, the victim asked 

Respondent for permission to go back upstairs to check on her sons. He responded, “yeah, 

but I’m not done with you.” When the victim entered her son’s bedroom, she found one 

of her sons awake and afraid. He asked her if she was okay because he had heard arguing. 

While she was consoling her son, Respondent texted the victim, asking: “[W]hat are you 

doing, are you playing games[?]” Respondent instructed the victim to come back to the 

room. The victim returned to the bedroom and Respondent locked the door behind her. 

He told her, “you are going to fuck me again[,]” and took off her clothes. The victim 

testified that he then raped her a second time. The victim attempted to leave when it 

appeared Respondent had fallen asleep, but “he popped back up [again].” 

That morning, the victim dropped off her sons at school and Respondent at a nearby 

bus stop. The victim testified that Respondent asked whether the relationship was over and 

she assured him that “everything [was] fine[]” and that they would “work through this.” 

The victim alleged that Respondent responded, “If you are lying, I’m going to kill you.” 

Thereafter, the victim called her mother to tell her what happened. Her mother suggested 

that she go to her sister’s (“G.’s”) house to be safe. At trial, G. testified that the victim 

appeared “frantic” and “very upset” when she arrived. A family friend, E.T., had already 

been in contact with G. because one of the victim’s sons emailed E.T. in the middle of the 

night, alleging that Respondent was hurting the victim. The victim reported the physical 

and sexual assault to the police. Deputy Novak, the officer who conducted the preliminary 

interview, testified that she observed red bruises on the victim’s chest and neck that were 
5

consistent with the victim’s statement of events, and that the victim told her that 

Respondent “ma[d]e her do some things she felt she didn’t want to do.” Deputy Novak 

sent the victim to Harford Memorial Hospital for examination. 

A nurse performed a Sexual Assault Forensic Examination (“SAFE”) and a 

consulting expert testified that the results from that exam were inconclusive regarding 

whether the victim had been raped.

6

 After leaving the hospital, the victim filed for and was 

granted a protective order. Respondent also testified at trial, describing his relationship 

with the victim as “up and down[,]” and that “trust issues[]” contributed to the tumultuous 

nature of the relationship. He testified that he and the victim had consensual sexual 

intercourse and fellatio on the evening of October 2 and again, on the morning of October 

3.7 When asked about the events that transpired the evening of October 3, 2016, after

football practice, Respondent testified that he was upset because the victim received a text 

message from an unsaved number and provided answers that he believed “didn’t add up[.]”

Respondent admitted that he grew increasingly angry, and that he yelled at her 

because he was upset, but denied physically or sexually assaulting the victim. In closing 

argument, the prosecutor stated:

 

6 The expert stated that the results of the genital examination were “normal,” 

meaning there were no “physical or acute genital injuries.” She did note that the SAFE 

revealed the victim had sexual intercourse, but it could not be determined whether the 

encounter was forced or consensual. 

7 Respondent testified that he stayed at the victim’s house on the night of October 2

because the couple agreed that he would watch her sons, who had the day off from school 

on October 3. Respondent denied that he and the victim engaged in sexual acts on the 

morning of October 4 and that “[he] pushed her off [of him] while [they] were having 

sex[]” on the evening of October 3 because he was still “upset about [the text messages].” 
6

[The victim] tells you all the while this is happening, he is threatening her. 

So[,] all of this is done by force. He is pushing her down. He is grabbing 

her hair. But it is also by threat of force. You only have to actually find as 

you saw in the elements, one of the two, that it is by force or threat of force. 

In this case, we actually have both because he is actually physically forcing 

her but he is also threatening her throughout, he is going to kill her over and 

over and over again. One time she leaves the room because he will allow it. 

Okay. I won’t harm you when you walk out of the room this time. That is 

threat of force, ladies and gentlemen of the jury. I will allow it. Because had 

she walked out prior to that, you can bet the assault would have continued. 

And he slammed the door. His own words.

***

There is no question [the victim] didn’t consent. And then you heard some 

testimony that she went downstairs and he continues to threaten her. And 

still--in that bedroom[,] prior to letting her out, while he is physically 

assaulting her, slapping her, choking her, strangling her, and that when they 

go downstairs, he slaps her again. 

(Emphasis added). Following deliberations, the jury convicted Respondent of seconddegree assault and fourth-degree sexual offense, and acquitted him of the remaining 

charges. 

At sentencing on March 26, 2018, the State argued that the trial judge should exceed 

the sentencing guidelines because of the “egregious nature of the harm,” and impose a 

sentence of eleven years—ten years for the second-degree assault and one year for the 

fourth-degree sexual offense to run consecutively—suspending all but six years.8 Defense 

counsel argued that the conviction for second-degree assault was the lesser included 

offense of the fourth-degree sexual offense conviction and, as such, both offenses should 

 

8 The guidelines range was three months to two years. The court departed from the 

sentencing guidelines and imposed a harsher sentence because Respondent had been 

convicted of a domestically related crime, involving a different victim, once before. 
7

merge for purposes of sentencing. The sentencing judge rejected the merger argument, 

stating:

With regard to the merger suggestion by [defense counsel] as made, my 

review of the evidence is that there were separate events of physical assault 

which was separate from or in addition to the sexual penetration of the victim. 

So[,] the Court sees this as a case in which[,] because there are these separate 

aspects of the acts of the [Respondent], both the slapping or smacking as 

[defense counsel] characterized it, and the push, putting the hands around the 

neck, as well as the sexual fourth[-]degree sex offense aspect, I believe that 

it is appropriate to sentence separately as to the two offenses. 

The judge imposed a sentence of ten years, suspending all but five years for the seconddegree assault and one year for the fourth-degree sexual offense, to be served 

consecutively, followed by five years of supervised probation. Respondent timely

appealed to the Court of Special Appeals. Frazier v. State, No. 344, Sept. Term, 2018,

2019 WL 2539288 (Md. App. June 20, 2019). 

Appeal to the Court of Special Appeals

The issue confronting the Court of Special Appeals was whether a jury found that 

the two offenses were based on the same act, or separate acts that could sustain the 

convictions for second-degree assault and fourth-degree sexual offense.9 Respondent 

contended that the circuit court failed to merge the two convictions, for purposes of 

sentencing, in violation of the Double Jeopardy Clause of the Fifth Amendment to the 

 

9 Respondent also argued that there was insufficient evidence to support a 

conviction for fourth-degree sexual offense. The Court of Special Appeals declined to 

address the legal sufficiency argument, finding that Respondent “failed to state with 

particularity why his motion for judgment of acquittal should be granted[,]” and therefore, 

his argument on the issue of whether the evidence was sufficient was not preserved for 

appellate review. Id. at *4. 
8

United States Constitution. Id. at *4. The State argued that the convictions were based on 

“separate and distinct acts,” not requiring merger. Id. The Court of Special Appeals 

disagreed and found that it was “unable [] to specifically determine, which act or acts were 

the basis for [Respondent’s] convictions[,]” because “the prosecutor muddled the seconddegree assault elements and the fourth-degree sexual offense elements in her last and final 

words to the jury.” Id. at *5–6. According to the Court of Special Appeals, the jury could 

have determined that the sexual offense and the physical assault were one continuous act—

not two distinct acts. Id. at *6. 

The Court cited opening statements and closing argument, in which the prosecution 

repeatedly described the events as “continuing” from one place to the next, implying that 

the physical and sexual violence should be treated as one ongoing criminal act. The Court

noted that the record reflected two separate acts of assaultive conduct, but was not clear 

which act or acts formed the basis for each conviction and in the face of such “an 

unreasonable ambiguity[,]” the offenses must merge if the required evidence test is

satisfied. Id. at *6. 

The Court then applied the required evidence test to ascertain whether “all the 

elements of one crime are necessarily in evidence to support a finding of the other, such 

that the first is subsumed as a lesser included offense of the second.” Id. at *7 (citing 

Monoker v. State, 321 Md. 214, 220, 582 A.2d 525, 527 (1990)). According to the Court, 

the fourth-degree sexual offense bore a distinct element that the offense of second-degree 

assault lacked, and as such, the assault conviction merged into the sexual offense 

conviction under the required evidence test. Id. The Court acknowledged that the greater 
9

offense carried a lesser penalty than the lesser included offense and reiterated that the 

prosecutor could have, and should have, clarified whether Respondent was being charged 

with two distinct acts of assaultive behavior or one, leaving no ambiguity regarding 

whether the jury convicted Respondent for one continuous act or two separate acts. Id. at 

*6. The Court reversed and remanded the case to the circuit court for resentencing 

consistent with the holding that the convictions merged.

In the concurrence that was joined by Judge Andrea Leahy, Chief Judge Matthew 

Fader opined that the Lancaster rule—which the Majority opinion relied on in vacating the

two separate sentences for convictions that merged—should be revisited. Id. at *9 (Fader, 

C.J., concurring). “[C]ourts in other jurisdictions facing the same issue have reached a 

result that is both consistent with [] double jeopardy jurisprudence and, at least in 

circumstances like [this one], more faithful to legislative intent and the amount of deference 

properly afforded jury verdicts.” Id. at *10. According to Chief Judge Fader, strict 

application of the Lancaster rule would mean that “by adding a sexual component to his 

assault of the victim, [Respondent] reduced 10-fold the maximum penalty for that 

assault[]” and that is neither the result the General Assembly could have intended, nor does 

it accord due regard to the weight of the jury verdict. Id. 

DISCUSSION

We begin our analysis with whether the respective sentences for second-degree 

assault and fourth-degree sexual offense should merge. The State appears to concede that 

the offenses merged under the required evidence test, but disagrees that the merger of the

offenses required the imposition of a sentence according to the “lesser included offense.” 
10

The State invites this Court to overturn our holding in State v. Lancaster, 332 Md. 385, 631

A.2d 453 (1993), and now hold that, where one offense merges into another, a trial judge 

may still impose the sentence based on the “lesser included offense,” if the lesser included 

offense carries the harsher penalty. The State contends that “protecting double jeopardy 

rights by merging a conviction on a lesser [included] offense under the required evidence 

[test] does not require a court to disregard the potential sentence for that conviction.” 

According to the State, this portion of Lancaster and the decisions that followed, were 

wrongly decided, because they incorrectly interpreted the required evidence test to limit 

available sentences. The State argues that the current rule unnecessarily restricts the trial 

judge’s ability to sentence upon merger of the lesser included offense. 

In contrast, Respondent argues that Lancaster was rightly decided and that 

Lancaster and its progeny mandate merger for purposes of conviction and sentencing. 

Respondent contends that the greater of the offenses, fourth-degree sexual offense,

provides the sole sentence for his acts. We agree. We are not compelled to rewrite

Maryland merger law, which provides that where the lesser included offense merges into 

the greater inclusive offense, the sentence merges as well. 

A. The offenses and their sentences merge. 

To understand the sentencing implications, it is useful to review and outline why

state merger law requires the merger of the fourth-degree sexual offense and second-degree 

assault convictions, and their respective sentences. 

The Double Jeopardy Clause of the Fifth Amendment to the United States 

Constitution, made applicable to the states through the Due Process Clause of the 
11

Fourteenth Amendment, provides that no individual shall be tried or punished more than 

once for the same offense.10 See U.S.CONST., AMEND. V. Double jeopardy rights “protect[]

against three distinct abuses: a second prosecution for the same offense after acquittal; a 

second prosecution for the same offense after conviction; and multiple punishments for the 

same offense.” State v. Jones, 340 Md. 235, 242, 666 A.2d 128, 131 (1995) (quoting 

United States v. Halper, 490 U.S. 435, 440, 109 S. Ct. 1892, 1897 (1989)). Additionally, 

“[t]he Supreme Court has held that states may impose cumulative punishment if it is clearly 

the intent of the legislature to do so.” Jones v. State, 357 Md. 141, 163, 742 A.2d 493, 505 

(1999) (citing Missouri v. Hunter, 459 U.S. 359, 365–69, 103 S. Ct. 673, 677–78 (1983)). 

The Supreme Court has also indicated that the protection against multiple punishments 

derived from the Double Jeopardy Clause “does no more than prevent the sentencing court 

from prescribing greater punishment than the legislature intended.” Hunter, 459 U.S. at 

366, 103 S. Ct. at 678. 

Merger is the common law principle that derives from the protections afforded by 

the Double Jeopardy Clause. Brooks v. State, 439 Md. 698, 737, 98 A.3d 236, 258 (2014). 

It is the mechanism used to “protect[] a convicted defendant from multiple punishments 

 

10 The Double Jeopardy Clause states that no person shall “be subject for the same 

offense to be twice put in jeopardy of life and limb[.]” The Maryland Constitution does 

not contain a double jeopardy clause. Scott v. State, 454 Md. 146, 167, 164 A.3d 177, 189 

(2017) (citing Scriber v. State, 437 Md. 399, 408, 86 A.3d 1260, 1265 (2014)). Merger 

and prohibition against double jeopardy are addressed in Maryland common law. Id.; see 

also State v. Long, 405 Md. 527, 536, 954 A.2d 1083, 1089 (2008) (internal citations 

omitted). 
12

for the same offense.”11 Id. This Court has required merger “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.” Id. Both elements must be satisfied before merger is required.12

1. Same Acts or Distinctive Acts 

We must first resolve whether Respondent’s respective convictions for seconddegree assault and fourth-degree sexual offense were predicated on “the same act or acts” 

or separately distinguishable acts. Id. In Nicolas v. State, we held that, in situations where 

there is a factual ambiguity regarding whether the convictions arose out of the same act or 

transaction, “that ambiguity is resolved in favor of the defendant.” 426 Md. 385, 400, 44 

 

11 See RICHARD P. GILBERT & CHARLES E. MOYLAN, JR., MARYLAND CRIMINAL 

LAW: PRACTICE AND PROCEDURE 452 (1983) (“When a defendant is convicted of a greater 

inclusive offense, double jeopardy considerations protect him from being punished 

separately for a lesser included offense. To punish an individual both for an aggravated 

assault and for the lesser included simple assault would constitute multiple punishment for 

the same offense, one of the classic evils against which double jeopardy provision 

protects.”)

12 Where the required evidence test has not been satisfied, the court may still pursue

merger under the rule of lenity and fundamental fairness tests. Under the rule of lenity, “if 

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, 529 (1990). A 

court may also merge in the interest of fundamental fairness. In this situation, 

“[c]onsiderations of fairness and reasonableness reinforce our conclusion [to merge] .... 

We have ... looked to whether the type of act has historically resulted in multiple 

punishment[s]. The fairness of multiple punishments in a particular situation is obviously 

important.” Marlin v. State, 192 Md. App. 134, 169, 993 A.2d 1141, 1162 (2010) (quoting 

White v. State, 318 Md. 740, 746, 569 A.2d 1271, 1274 (1990)). 
13

A.3d 396, 404 (2012); see also Brooks, 439 Md. at 739, 98 A.3d at 260. Under these

circumstances, the reviewing Court can “look to the record for other indications that might 

resolve the ambiguity in favor of non-merger.” Id. at 741, 98 A.3d at 261. However, in 

the case at bar, the record is “not so clear.” Frazier, 2019 WL 2539288 at *5. 

As the Court of Special Appeals aptly acknowledged:

The record reflects two separate acts of assaultive behavior. One 

where [Respondent] choked and slapped the victim. The second 

where [Respondent] raped the victim and forced the victim to perform 

fellatio on him. The jury could have disbelieved the occurrence of the neck 

grabbing and slapping or could have believed that both the rape and forced 

fellatio were the assaultive conduct. The factual basis for the jury’s verdict 

is not readily apparent from the record before us and therefore creates an 

unreasonable ambiguity.

Id. at *6 (emphasis in original). 

In addressing the separate instances of physical assault, the sentencing judge

regarded the “slapping and smacking” and neck-grabbing as separate acts of assaultive 

conduct, as distinguishable and “separate from or in addition to the sexual penetration of 

the victim.” The trial court found independent acts of sexual and physical assault, which 

were sufficient to establish the required elements for both fourth-degree sexual offense and 

second-degree assault. But, as the Court of Special Appeals noted, “the record looking at 

the trial in its entirety is not so clear.” Id. at *5. For example, the Court of Special Appeals 

observed that the pattern jury instructions did not inform the jury that they must find acts 

of physical assault and separate acts of sexual contact to convict the defendant of both 
14

crimes.13 See Snowden v. State, 321 Md. 612, 619, 583 A.2d 1056, 1059 (1991)

(“Snowden’s [case] was a court trial; had it been a jury trial[,] we could have looked to the 

judge’s instructions [to the jury] in hope of illuminating the rationale behind the verdicts.”).

Additionally, the prosecutor did not focus the attention of the jury on which acts formed 

the basis for the fourth-degree sexual offense conviction as distinguished from those acts 

that supported a conviction for second-degree assault. Between the deficiencies associated 

with the presentation of the State’s case and the pattern jury instructions, it was entirely 

unclear whether the jury based the two convictions on the same or different acts. In the 

absence of a failure to specifically distinguish which acts formed the basis of each

conviction, the ambiguity requires resolution in favor of merger. 

2. Required Evidence Test 

 

13

 The trial court provided the jury with the following instructions: 

In order to convict the Defendant of fourth[-]degree sexual offense, 

the State must prove that the Defendant had sexual contact with [the victim] 

and that the sexual contact was made against the will and without the consent 

of [the victim]. Sexual contact means intentional touching of [the victim’s] 

genital or anal area or other intimate parts for the purposes of sexual arousal 

or gratification or for the abuse of either party. 

The Defendant is charged with second[-]degree assault. Assault is 

causing offensive physical contact to another person. In order to convict the 

Defendant of assault, the State must prove that the Defendant caused 

offensive physical contact with [the victim]; that the contact was the result 

of an intentional or reckless act of the Defendant and was not accidental; and 

that the contact was not consented to by [the victim]. Reckless act means 

conduct that under all the circumstances shows a conscious disregard of the 

consequences to other people and is a gross departure from the standard of 

conduct that a law[-]abiding person would observe. 

Frazier, 2019 WL 2539288 at *5 n.3 (citing Maryland Pattern Jury Instructions). 
15

In applying the required evidence test, we must consider whether the elements of 

second-degree assault are “subsumed” as a lesser included offense of fourth-degree sexual 

offense. “‘The required evidence test focuses upon the elements of each offense; if 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.’” 

Nicolas, 426 Md. at 401, 44 A.3d at 405 (internal citations omitted). In other words, “the 

required evidence is that which is minimally necessary to secure a conviction for 

each...offense.” Id. If each of the two offenses requires proof of an element which the 

other does not, merger is not required. Id. at 401–02, 44 A.3d at 405–06. 

Section 3-203 of the Maryland Code, Criminal Law Article (“Crim. Law”) prohibits

assault in the second degree. Our case law embraces three types of common law assault:

“(1) intent to frighten, (2) attempted battery, and (3) battery.” Jones v. State, 440 Md. 450, 

455, 103 A.3d 586, 589 (2014) (citing Snyder v. State, 210 Md. App. 370, 382, 63 A.3d 

128, 135 (2013)). Upon conviction, the penalty for second-degree assault is a term of 

imprisonment not to exceed ten years, a $2,500 fine, or both. Crim. Law § 3-203.

It is well established that “[w]hen applying the required evidence test to multipurpose offenses, i.e., offenses having alternative elements, a court must examine the 

alternative elements relevant to the case at issue.” Nicolas, 426 Md. at 403, 44 A.3d at 

406. Common law battery—the type of assault at issue here—is an offensive or harmful 

contact with another person. Id., 44 A.3d at 406–07. A fourth-degree sexual offense

requires “[s]exual contact,” which is “an intentional touching of the victim’s or actor’s 

genital, anal, or other intimate area for sexual arousal or gratification, or for the abuse of 
16

either party.” Crim. Law § 3-301(e)(1). In order to be a crime, such contact must be 

without valid consent.14 Judge Charles E. Moylan, Jr. further defined “sexual contact” 

thusly: “[P]urposeful tactile contact and tactile sensation, not incidental touching. It is the 

sexually-oriented act of groping, caressing, feeling, or touching of the genital area or anus 

 

14 Crim. Law § 3-308 provides: 

Prohibited--In general

(b) A person may not engage in:

(1) sexual contact with another without the consent of the other;

(2) except as provided in § 3-307(a)(4) of this subtitle, a sexual act with 

another if the victim is 14 or 15 years old, and the person performing the 

sexual act is at least 4 years older than the victim; or

(3) except as provided in § 3-307(a)(5) of this subtitle, vaginal intercourse 

with another if the victim is 14 or 15 years old, and the person performing 

the act is at least 4 years older than the victim.

***

Penalty 

(d)(1) Except as provided in paragraph (2) of this subsection, a person who 

violates this section is guilty of the misdemeanor of sexual offense in the 

fourth degree and on conviction is subject to imprisonment not exceeding 1 

year or a fine not exceeding $1,000 or both.

(2)(i) On conviction of a violation of this section, a person who has been 

convicted on a prior occasion not arising from the same incident of a 

violation of § 3-303, § 3-304, §§ 3-307 through 3-310 of this subtitle, § 3-

311 or § 3-312 of this subtitle as the sections existed before October 1, 2017, 

§ 3-315 of this subtitle, or § 3-602 of this title is subject to imprisonment not 

exceeding 3 years or a fine not exceeding $1,000 or both.

(ii) If the State intends to proceed against a person under subparagraph (i) of 

this paragraph, it shall comply with the procedures set forth in the Maryland

Rules for the indictment and trial of a subsequent offender.
17

or breasts of the female victim.” Travis v. State, 218 Md. App. 410, 465, 98 A.3d 281, 313

(2014). As the State recognizes, the fourth-degree sexual offense must merge with seconddegree assault under Maryland merger law because the elements of second-degree assault 

are identical to those required for fourth-degree sexual offense, with the exception of one 

element—that the assaultive conduct be sexual in nature. In other words, the sexual contact 

element is what distinguishes fourth-degree-sexual offense from any other “touching” 

sufficient for second-degree-assault. We agree with the Court of Special Appeals that 

based on the required evidence test, the second-degree assault conviction is subsumed by 

the fourth-degree sexual offense. Where the parties diverge is regarding the sentencing 

implications of this merger. 

3. Merger of Penalties Under the Lancaster Rule 

The State argues that sentencing according to the second-degree-assault conviction

does not run afoul of the Double Jeopardy Clause, and that federal merger law is silent 

regarding which of the two available punishments applies.15 

In accordance with federal double jeopardy principles, this Court has previously 

stated that, when two convictions, such as second-degree assault and fourth-degree sexual

offense, merge, “separate sentences are normally precluded[,]” unless the General 

Assembly intended otherwise. Nicolas, 426 Md. at 400, 44 A.3d at 405 (internal citations 

 

15 At oral argument, the State recognized that the sentencing judge sentenced 

Respondent on both convictions. It concedes that sentencing on both convictions is 

inappropriate where merger is required, but argues that the Double Jeopardy Clause does 

not require that the sentence be capped by the maximum sentence for the greater offense 

when the lesser-included offense allows for a longer sentence. 
18

omitted); see also Newton v. State, 280 Md. 260, 268, 373 A.2d 262, 266 (1977). This is 

true “regardless of the maximum authorized sentence for each offense.” Lancaster, 332 

Md. at 405, 631 A.2d at 464 (citing Johnson v. State, 283 Md. 196, 204, 388 A.2d 926, 930 

(1978)). 

Our case law also makes clear that “a sentence may be imposed only for the offense 

having the additional element or elements[,]” i.e., the greater offense. Id. at 392, 631 A.2d 

at 457 (internal citations omitted); see, e.g., Hardy v. State, 301 Md. 124,134, 482 A.2d 

474, 480 (1984) (stating that it is “indelibly clear that in Maryland a defendant charged 

with a greater offense (that carries a lighter penalty) and a lesser included offense (that 

carries a heavier penalty) is only subject to the maximum penalty of the greater offense 

upon conviction”). “Where 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). Given that the convictions for fourth-degree 

sexual offense and second-degree assault merged, so should the punishment corresponding 

to the lesser included offense of second-degree assault. See In re Montrail M., 325 Md. 

527, 534, 601 A.2d 1102, 1105 (1992) (stating that “[t]he permissible punishment is that 

imposed on the greater offense”). 

The principal case explicitly barring sentencing on the lesser included offense is 

State v. Lancaster. In Lancaster, the defendant was convicted of fourth-degree sexual

offense for “engaging in fellatio with another person who is 14 or 15 years of age” when 

“the person performing the sexual act is four or more years older than the other person.”
19

Id. at 389–90, 631 A.2d at 455–56. The same acts giving rise to the fourth-degree sexual 

offense resulted in a conviction for the lesser included offense of “unnatural or perverted 

sexual practices[,]” which then punished a person for “taking into his or her mouth the 

sexual organ of any other person[.]”

16

 Id. at 399–400, 631 A.2d at 460–61. Because 

Lancaster was convicted of two separate offenses predicated on the same act, the Double 

Jeopardy Clause mandated merger to prevent double punishment. Nonetheless, Lancaster

was sentenced according to both the fourth-degree sexual offense and the unnatural or 

perverted sexual practices charge. Id. at 390, 631 A.2d at 456. The maximum penalty for 

the former was one year; the statutory maximum was ten years for the latter. Id. at 395, 

631 A.3d at 458. Lancaster appealed and the Court of Special Appeals held that he was 

improperly sentenced because the convictions should have merged at sentencing. We

agreed and vacated the sentence for the unnatural or perverted sexual practices conviction, 

holding that the one-year sentence for fourth-degree sexual offense governed because the 

 

16 Md. Code, Art. 27, § 554 (repealed 2002). Section 554 provided in pertinent part: 

§ 554. Unnatural or perverted sexual practices.

Every person who is convicted of taking into his or her mouth the sexual 

organ of any other person or animal, or who shall be convicted of placing his 

or her sexual organ in the mouth of any other person or animal, or who shall 

be convicted of committing any other unnatural or perverted sexual practice 

with any other person or animal, shall be fined not more than one thousand 

dollars ($1,000.00), or be imprisoned in jail or in the house of correction or 

in the penitentiary for a period not exceeding ten years, or shall be both fined 

and imprisoned within the limits above prescribed in the discretion of the 

court. 

See Lancaster, 332 Md. at 430 n.4, 631 A.3d at 477 n.4 (Chasanow, J., dissenting).
20

ten-year sentence was no longer an available sentence after applying the required evidence 

test and merging the convictions. Id. We reasoned that punishments should be imposed

in accordance with the greater offense because this offense is “more specifically tailored 

to his or her conduct.” Id. at 420, 631 A.2d at 472. Moreover, “[t]he maximum penalty 

prescribed by the statute for the greater and more circumscribed offense [] represents a 

legislative judgment concerning the punishment for the precise type of conduct[.]” Id. 

Accordingly, we affirmed the Court of Special Appeals and vacated the sentence for 

performing an unnatural or perverted sexual practice. Id. at 422, 631 A.2d at 473. 

In a dissenting opinion, Judge John F. McAuliffe raised the very argument advanced 

by the State in the instant case. He agreed that only one conviction could survive merger 

for purposes of sentencing. Id. at 422–23, 631 A.2d at 473 (McAuliffe, J., dissenting). 

However, he rejected the proposition that double jeopardy principles required that the 

“conviction left standing be of the offense having the greatest number of elements[]” and

that the court must sentence according to this so-called greater offense. Id. at 423, 631 

A.2d at 473. Departing from the Majority, Judge McAuliffe would have “vacate[d] the 

judgment of conviction of fourth[-]degree sexual offense, and affirm[ed] the judgment for 

the more serious offense of committing an unnatural or perverted sexual practice.” Id. 

Judge Howard Chasanow similarly disagreed with the Majority approach in Lancaster. Id. 

at 426, 631 A.2d at 475 (Chasanow, J., dissenting). It was clear to Judge Chasanow that

the General Assembly intended for the two statutes to be cumulative, meaning that the

appropriate sentence would have been ten years for the unnatural and perverted oral sex 
21

act and one year for the fourth-degree sexual offense. Id. at 433, 443–45, 631 A.2d at 483–

84. 

As recognized by the Lancaster majority and the respective dissents by Judge 

McAuliffe and Judge Chasanow, the rule requiring that punishments merge with 

convictions at sentencing is not explicit in federal merger law. But, it logically follows 

from established merger principles that, upon merger of convictions, the only available 

sentence or punishment is the one accompanying the greater offense. Montrail M., 325 

Md. at 534, 601 A.2d at 1105. As a practical matter, if the conviction for the lesser included 

offense “flows into the judgment entered on the conviction into which it [is] merged,” so 

too does the corresponding sentence. Id. at 533–34, 601 A.2d at 1105. Furthermore, in 

imposing a particular punishment after merger, the imposition of that punishment should 

be according to the offense that most precisely reflects the conduct, which is the offense 

bearing the greater number of elements; in this case, fourth-degree sexual offense. 

Lancaster, 332 Md. at 420, 631 A.2d at 472. 

We also recognize—as did the Court in Lancaster—that in most cases, the greater 

offense for merger purposes also carries a more severe punishment. However, as noted by 

the Court of Special Appeals, a fourth-degree sexual offense necessarily includes harmful 

or offensive contact sufficient for second-degree assault. Yet, the General Assembly 

retained the one-year penalty for fourth-degree sexual offense. In 1994, after the Lancaster 

decision, the General Assembly amended the fourth-degree sexual offense statute, but did 

not implement a harsher penalty or indicate that the assault statutes and fourth-degree 

sexual offense should be read to authorize cumulative punishment. 1994 Md. Laws, Ch. 
22

523 (H.B. 96). In fact, this crime is a misdemeanor with a one-year penalty for first-time 

offenders (three years for repeat offenders), and that “is an expression by the Legislature 

that certain acts of assault and battery should be reclassified as sexual offenses. The penalty 

is suggestive that the proscribed acts, while crimes, are to be dealt with much less severely 

than the maximum penalty for common law assault and battery.”17 Gilbert & Moylan, Jr.,

MARYLAND CRIMINAL LAW: PRACTICE AND PROCEDURE, § 5.9 at 81. Recognizing the 

merger implications post-Lancaster, if the General Assembly thought that a greater 

punishment for fourth-degree sexual offense was appropriate, it would have increased the 

penalty or allowed for duplicitous punishment. See Lancaster, 332 Md. at 416, 631 A.2d 

at 469 (“[T]he General Assembly is well aware of the principles of merger under Maryland 

law and knows how to specifically or expressly provide for multiple punishments in 

situations where there would otherwise be a merger.”) (footnote omitted). 

The State relies on United States v. Peel to illustrate the point that sentencing judges 

can apply either sentence when the greater offense carries a lesser penalty, without 

violating double jeopardy rights. 595 F.3d 763, 767–68 (7th Cir. 2010). There, the United 

States Court of Appeals for the Seventh Circuit held that merger of sentences was not 

required where the court found that the conviction for obstruction of justice merged with

the conviction for bankruptcy fraud; obstruction of justice being the lesser included offense 

 

17 We note that the jury acquitted Respondent on the felony rape in the seconddegree, Crim. Law § 3-304, and felony second-degree sexual offense, Crim. Law § 3-306. 

These felonies carry a sentence of up to twenty years and a lifetime on the sex offender 

registry. See id.; Md. Code, Criminal Procedure Article (“Crim. Proc.”) §11-707.
23

but harsher punishment. Id. According to the Seventh Circuit, the purpose of merger as a 

remedy is to

eliminate the doubleness. But which conviction must be vacated is not 

dictated by the Constitution. It is a matter committed to the trial judge’s 

discretion because functionally it is a decision concerning the length of a 

defendant’s sentence.

Id. at 768. The Seventh Circuit cautioned that holding otherwise would lead to 

“paradoxical” results, because the defendant would have received a shorter sentence than 

he would have had the greater offense not been charged. Id. (citing Lanier v. United States, 

220 F.3d 833, 842 (7th Cir. 2000)). Like the Peel Court, the Pennsylvania Supreme Court 

has found that double jeopardy has no impact on the punishments imposable. 

Commonwealth v. Everett, 550 Pa. 312, 705 A.2d 837 (Pa. 1998). In Everett, the defendant 

pleaded guilty to attempted murder and aggravated assault; attempted murder (the greater 

offense) carrying a maximum penalty of ten years and aggravated assault (the lesser 

included offense) carrying a maximum penalty of twenty years. Id. at 314–15, 705 A.2d 

at 838. The Everett Court declined to merge the convictions and their sentences, reasoning 

that the legislature imposed a greater penalty for conduct amounting to attempted murder 

and that penalty should control for sentencing purposes, regardless of merger. Id. at 316, 

705 A.2d at 839. We find neither Peel nor Everett persuasive, because those cases have 

no bearing on the law of merger in this state.

Nonetheless, other jurisdictions have reached conclusions similar to Lancaster. In 

State v. Dragoo, 277 Neb. 858, 765 N.W.2d 666 (Neb. 2009), the Supreme Court of 

Nebraska held that the driving under the influence (“DUI”) offense was the lesser included 
24

offense of the DUI causing serious bodily harm offense, and the “conviction and sentence 

on the lesser [included] charge must be vacated,” regardless of which offense carries the 

greater penalty. Id. at 865, 765 N.W.2d at 672; see also People v. Halstead, 881 P.2d 401, 

405–08 (Colo. App. 1994). As explained above, we have consistently held that, where 

merger is required, sentences should be imposed according to the offense encompassing 

the additional element. We see no reason to depart from that path. 

B. Departure from established precedent is inappropriate in this case. 

Under the doctrine of “stare decisis,” precedent “should not be lightly set aside[.]” 

Unger v. State, 427 Md. 383, 417, 48 A.3d 242, 261 (2012) (citing State v. Green, 367 Md. 

61, 78, 785 A.2d 1275, 1285 (2001)). Adherence to precedent is the “preferred course 

because it promotes the evenhanded, predictable, and consistent development of legal 

principles, fosters reliance on judicial decisions, and contributes to the actual and perceived 

integrity of the judicial process.” Payne v. Tennessee, 501 U.S. 808, 827, 111 S. Ct. 2597, 

2609 (1991). However, stare decisis is “not an absolute.” Green, 367 Md. at 79, 785 A.2d

at 1285. This Court will depart from established precedent for one of two reasons: (1) the 

prior decision is “clearly wrong and contrary to established principles” or (2) the precedent 

has been “superseded by significant changes in the law.” State v. Waine, 444 Md. 692,

700, 122 A.3d 294, 294 (2015). 

Here, the fact that the greater included offense carries a lesser penalty does not 

render the Lancaster decision “clearly wrong.” As noted by the Court of Special Appeals, 

the Lancaster rule only presents a problem when the lesser included offense bears a greater 

penalty. However, this “so-called” Lancaster sentencing problem could have been averted. 
25

By virtue of having charged the defendant with fourth-degree-sexual offense and seconddegree-assault, Respondent received a less severe punishment than he would have, if he 

had only been charged with second-degree-assault, because Lancaster mandates 

sentencing on the greater offense. Notwithstanding this unintended consequence of 

Lancaster, any resulting sentencing issues could have been resolved during trial. A jury 

instruction specifying that separate acts must form the basis for each conviction, and an

explanation of which acts satisfied the elements for each crime would have prevented

merger altogether. See Cortez v. State, 104 Md. App. 358, 369, 656 A.2d 360, 365 (1995) 

(“In a jury trial, the solution...is the giving of an appropriate instruction.”). 

For example, the trial judge might instruct the jury that, if it found the 

defendant guilty of robbery (or kidnapping, or other compound crimes in 

which force or threat of force is an element), it could find the defendant guilty 

of battery (or assault, or both) only if it found that there was a use of force 

(or threat of force) separate from and independent of the force (or threat of 

force) employed to effect the greater offense. 

Id. Had the jury been instructed accordingly, there would have been no question as to what 

act or acts formed the basis for convictions—if the jury then convicted Respondent on both 

counts, it would have been clear that the jury found two separate acts of sexual assault or 

physical assault. See Brooks, 439 Md. at 741–42, 98 A.3d at 261 (mandating merger of 

false imprisonment and first-degree rape because neither the jury instructions nor the 

record reflected that the jury viewed the events as two distinct acts). 

At trial, prosecutors also have a responsibility to explain the required elements of 

the crime charged. In closing argument, the prosecutor convoluted the applicable elements 

and acts, blurring the distinction between which act or acts supported the conviction for 
26

second-degree assault and which supported a conviction for the fourth-degree sexual 

offense. In closing, the prosecutor described forced vaginal intercourse and stated that the 

assault “continued” from the upstairs bedroom to the kitchen. Had the prosecutor been 

clear regarding the acts sufficient to sustain a conviction for each, there may have been no 

“Lancaster problem.” 

Underlying the State’s argument is the premise that sexual assault should be 

punished more severely than what is currently prescribed in the fourth-degree sexual 

offense statute. This, however, is an issue that must be addressed by the General Assembly. 

“Legislatures, not courts, prescribe the scope of punishments.” Hunter, 459 U.S. at 368, 

103 S. Ct. 673 at 679. There has been no clear expression of legislative intent that seconddegree assault and fourth-degree sexual offense should be punished cumulatively. In the 

absence of clear legislative intent, a court in this circumstance may not impose a greater 

penalty than what is provided in the fourth-degree sexual offense statute. 

CONCLUSION 

We affirm the judgment of the Court of Special Appeals. Lancaster requires the 

merger of both convictions and sentences. Once there has been a merger of a conviction 

under the required evidence test, the sentence for the lesser included offense is no longer 

available to the sentencing judge. We see no reason to overturn precedent, particularly 

where the problem the State cautions against may have been avoided.

JUDGMENT OF THE COURT 

OF SPECIAL APPEALS IS 

AFFIRMED. COSTS TO BE 

PAID BY PETITIONER.