Cain v. State

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Richard Wilburn Cain v. State of Maryland, No. 97, September Term, 2004. [Criminal Law - S econd D egree As sault - Scop e of Def inition of Offender Under Maryland s Registration of Offenders Statute as set forth in Maryland Code (2001), § 11701(d)(7) of the Criminal Procedu re Article; Statutory Interpretation, held: the statutory definition of offender pursuant to Md. Code (2001), § 11-701(d)(7) of the Criminal Procedure Article, does not require a person convicted of second degree assault to register as an offender, unless the elements of the crime contain reference to a sexual offense against a mino r.] IN THE COURT OF APPEALS OF MARYLAND No. 97 September Term, 2004 RICHA RD W ILBUR N CAIN v. STATE OF MARYLAND Bell, C.J. Raker Wilner Harrell Battaglia Greene Eldridge, John C. (Retired Specially Assigned), JJ. Opinion by Battaglia, J. Filed: April 12, 2005 In this case, we are asked to determine whether a person convicted of second degree assault must register as an offe nder under Maryland s Re gistration of O ffenders Statute as set forth in Maryland Co de (2001), § 11-70 1(d)(7) of the Crimina l Procedure Article. For the reasons stated herein, we hold that a person convicted of second degree assault is not required to register as an offende r under the R egistration of Offenders statute, unless the elements of the crime c ontain reference to a sex ual offense against a m inor. I. Facts and Procedural History On July 29, 2002, Richard W ilburn Cain was arres ted and charged in the Circuit Court for Calvert C ounty with one count of child abuse,1 two counts of third degree sexual offense 2 1 Md. Code (1957, 1996 Repl. Vol.), Art. 27 §35C(b)(1) stated: Violation constitutes felony; penalty; sentencing. (1) A parent or other person who has permanent or temporary care or custody or responsibility for the superv ision of a ch ild or a household or family member who causes a buse to the child is guilty of a felony and on co nviction is su bject to imprisonment in the penitentiary for not more than 15 years. This section was recodified without substantive change as Md. Code (2002), § 3-601(c) of the Criminal Law Article, effective October 1, 2002. 2 Md. Code (1957, 1996 Repl. Vol.), Art. 27 §464B provided: (a) Elements of offense. A person is guilty of a sexual offense in the third degree if the person engages in: (1) Sexual contact w ith another person again st the will and without the consent of the other person, and: (i) Employs or displays a da ngerous o r deadly weapon or an article w hich the oth er person rea sonably concludes is a dang erous or deadly weap on; or (ii) Inflicts suffocation, strangulation, disfigurement or serious physical injury upon the other person or upon anyone else in the course of committing that offense; or (iii) Threatens or places the victim in fear that the (contin ued...) and one count of s econd de gree assau lt.3 In a proceeding before the Circuit Court, Cain pled 2 (...continued) victim or any person known to the victim w ill be immine ntly subjected to death, suf focation stra ngulation, d isfigureme nt, serious physical injury, or kidnapping; or (iv) Comm its the offense aided and abetted by one or more other persons; or (2) Sexual co ntact with a nother pers on who is mentally defective, mentally incapacitated, or physically helpless, and the person knows or should re asonably kn ow the o ther person is mentally defective, mentally incapacitated, or physically helpless; or (3) Sexual contact with another person who is under 14 years of age an d the perso n perform ing the sexu al contact is four or more years older than the victim; or (4) A sexual act with another person who is 14 or 15 years of age and the person performing the sexual act is at least 21 years of age. (5) Vaginal intercourse with another person who is 14 or 15 years of age and the person performing the act is at least 21 years of age. (b) Penalty. Any person violating the prov isions of this section is guilty of a felony and upo n convictio n is subject to imprisonment for a period of not more than 10 years. This section was recodified without substantive change as Md. Code (2002), § 3-307 of the Criminal Law Article, effective October 1, 2002. 3 Md. Code (1957, 1996 Repl. Vol.), Art. 27 § 12 stated: (b) Assault. Except as otherwise provided in this subheading, assault means the offenses of assault, battery, and assault and batte ry, which te rms retain their judicially determined meanings. This section was recodified without substantive change as Md. Code (2002), § 3-201 of the Criminal Law A rticle, effective October 1, 2002. M d. Code (1 957, 199 6 Repl. V ol.), Art. 27 § 12A stated: (a) General prohibition. A person may not comm it an assault. (b) Violation; penalties. A person who violates this section is guilty of the misdemeanor of assault in the second degree and on conviction is subject to a fine of not more than $2,500 or (contin ued...) -2- guilty on Ma rch 11, 200 3, solely to the sec ond deg ree assault charge, upon terms explained by his attorney: [CAIN S ATTO RNE Y]: Mr. C ain has agreed to enter a plea of guilty to the fourth count of th e indictmen t,[4] second degree assault. We would ask the Court to take judicial notice of the charging document within the file. The agreed upon sentence will be a cap of 18 months executed time, backup time and probation in the C ourt s d iscretion , that Mr. Cain will be evaluated to see if any counseling is necessary prior to sentencing, and that the State will be asking that he register under the registration statute, and tha t we are fre e to allocute that it does not apply in this case. THE COU RT: An d my under standing is th at we are g oing to have a brief statement of facts in just a minute,[5] but let me just make sure that you understand - or that I understand that you are pleading guilty to second degree assault, which is an unpermitted touc hing , and that yo u are plea ding guilty to that 3 (...continued) imprisonment for not more than 10 years or both. This section was recodified without substantive cha nge as Md . Code (2002), § 3-203 of the Criminal Law Article, effective October 1, 2002. 4 The fourth count of the indictment states: The Grand Jurors of the State of Maryland, for the b ody of Calvert County, do on their oath present, that RICHARD WILBURN CAIN , late of said Calvert County, on or about the 20 th day of July, in the year two thousand two, at Ca lvert Coun ty aforesaid, did assault [A lexandria G .] in the secon d degree in violation of Article 27, Section 12A of the Annotated Code of Maryland; contrary to the form of the act of assembly, in such case made and provided, and against the peace, government and dignity of the State. (Assault/Second Degree - Art. 27 § 12A, Md. Ann. Code) 5 No further statement of facts were given during the proceeding. -3- because you are in fact gu ilty; is that correct? [CAIN]: Y es, sir. After lengthy deliberation about the date of sentencing, the court confirmed the terms of the agreement and discussed additional terms sought by the State: THE COU RT: - M r. Cain, I [need to make] sure you understand that the State is going to ask that you register as an offender under the approp riate category and that you have no contac t with the victim or the victim s family. That s in addition to your standard co nditions of probation. D o you unde rstand that? [CAIN]: Yes. THE COU RT: Do you also und erstand that if the Court finds that you have violated your con - any of the conditions of probation, you could fa ce going to jail for the balance of whatever the sentence was? So worst case scenario if a 10 year sentence was imposed and you are found in violation, the balance of that 10 year sentence could be reimposed. Do you understan d that? [CAIN]: Yes. On June 24, 2003, the Circuit Court conducted a sentencing hearing during which Cain s attorney requested that Cain receive probation and asked that Mr. Cain not be made to attend either a sexual offe nder tre atmen t progra m or to r egister a s a sexu al offe nder. With rega rd to the registra tion, his attorne y argued that: The registry statute that went into place that the State is attempting to have Mr. Cain register under was really to put people on notice a s to pedophiles and sexual offenders - excuse me, sexual predators. That is not the case that we have here and that is why it is not appropriate in Mr. Cain s case. Mr. Cain has tested with a forensic psychologist who has -4- found him not to register [sic]; and I believe that the portion of the Statute that the State is attempting to register him under should no t apply to a case o f second degree ass ault. In addition, your Honor, I think that with the expert opinion testimony weighing so heavily against registering Mr. Cain and the inte nt of the Sta tute, and you put those two together, and I do not think registry is appropriate in this case. In response, the State argued: This issue as to whether he should register in this particular case is under 11-701 (d)(7) [6] as a sexual offender. That [Cain] has been convicted of a crime that involves conduct that, by its nature, is a sexual offense against a person under the age of eighteen years. That falls squarely on this case Yes, this was an Alford plea [7] and we agreed that [Cain] could plea d under A lford so t hat h e cou ld say - you know, he could plead to the fact that he to uched he r thigh and it w as unpermitted touching. But that - even if you take it from the Defense s perspective, that is still sexual touching of a child under the age of eighteen. The trial judge imposed a five-year sen tence for se cond deg ree assault w ith all but one day suspended for time that Cain prev iously had served and imposed five years of supervised 6 Md. Code (2002), § 11-701(d)(7) of the Criminal Procedure Article states: Offender. Offender means a perso n wh o is order ed by a court to register under this subtitle and who: (7) has been convicted of a crime that involves conduct that by its nature is a sexual offense agains t a perso n unde r the age of 18 yea rs . . . 7 An Alford plea arises when a defendant maintains his or her innocence, but concedes that the State could adduce enough evidence to prove h im or her guilty of the crime charged, as derived from the Supreme Court Case of North Carolina v. Alford, 40 U.S. 25 , 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). -5- probation with various conditions, including that Cain submit to evaluation, attend and successfu lly complete mental health treatment as directed by [his] supervising agent, have no contact with the victim or he r family, a nd that he serve a period of home confinement with the Home Confinement Services, Inc. for a period of six months. After hearing further argument about the offender registration statute, the Court also ordered Cain to register as an offender as a condition of his probation. At the completion of the sentencing hearing, the State then entered a nolle pro sequi on the remaining counts of child abuse and third degree sex offense. On December 22, 2003, Cain filed a Motion to Correct Illegal Sentence, contending that the second degree assault conv iction did not fall within the definition o f offender under Section 11-701(d)(7) of the Criminal Procedure Article, that required registration; the Circuit Court den ied the mo tion. Cain noted an appeal to the Court of Special Appeals, and this Court issued, on its own initiative , a writ of certiora ri, Cain v. Sta te, 384 Md. 157, 862 A.2d 993 (200 4), prior to any pro ceedings in the intermed iate appellate court. Cain s brief presented the following question for our review: Whether [Cain s] g uilty plea to assault in the second degree was insufficient to justify the judge s order that he register as an offe nder. We conclude that Cain does not have to register as an offender under Section 11-701(d)(7) of the Criminal Procedure Article and reverse the Circuit Court s order denying Cain s Motion to Correct Illegal Sentence. -6- II. Standard of Review When considering who must register as an offender under Section 11-701(d)(7) of the Criminal Procedure Article, an examination of the statute is essential, and we review the trial court s actions de novo. This Court has often stated that our goal in interpreting statutes is to identify and effectuate the legislative intent underlying the statute(s) at issue. Serio v. Baltimore County , 384 Md. 373 , 863 A.2d 952 , 962 (2004), quoting Drew v . First Gua ranty Mortgage Corp., 379 Md. 318, 327, 842 A.2d 1, 6 (2003), in turn quoting Derry v. State, 358 Md. 325, 335, 748 A.2 d 478, 48 3 (2000)); Pete v. State , 384 Md. 47, 57-58, 862 A.2d 419, 425 (2004); Graves v . State, 364 M d. 329, 3 46, 772 A.2d 1 225, 12 35 (20 01). As we have stated, the best source of legislative intent is the statute s plain language and when the language is clear and unambiguous, our inquiry or dinarily en ds there . Serio, 384 Md. at 373, 863 A.2d at 962; Pete, 384 Md. at 57-58, 862 A.2d at 425; Drew, 379 Md. at 327, 842 A.2d at 6; Beyer v. M organ Sta te Univ., 369 Md. 335, 349, 800 A.2d 707, 715 (2002 ); Whack v. State, 338 Md. 665, 672, 659 A.2d 13 47, 1350 (1995 ). Although the plain language of the statute guides our understanding of legislative intent, we do not read the language in a vacuum. See Serio, 384 Md. at 373, 863 A.2d at 962; Drew, 379 Md. at 327, 842 A.2d at 6; Derry, 358 Md. at 336, 748 A.2d at 48 3-84. Rather, we rea d statutory language within the context of the statutory scheme, considering the "purpose, aim, or policy of the enacting body." Serio, 384 Md. at 373, 863 A.2d at 962; Pete, 384 Md. at 57-58, 862 A.2d at 425; Drew, 379 Md. at 327, 842 A.2 d at 6; Beyer, 369 Md. at 35 0, 800 A .2d at 715; In re Mark -7- M., 365 Md. 687, 711, 782 A.2d 332 , 346 (2001)(quoting Tracey v. Tracey, 328 Md. 380, 387, 614 A .2d 590 , 594 (1 992)). When interpreting the language of a statute, we assign the words their ord inary and natural m eaning . Serio, 384 Md. at 373, 863 A.2d at 962; Pete, 384 Md. at 57-58, 862 A.2d at 425; O Con nor v. Baltim ore Cou nty, 382 Md. 102, 114, 854 A.2d 1191, 11 98 (2004 ); Lewis v. Sta te, 348 Md. 648, 653, 705 A.2d 1128, 1131 (1998). We will neither add nor delete words to a clear and unambiguous statute to give it a meaning not reflected by the words the Legislature used or engage in a forced or subtle interpretation in an attempt to extend or limit the statute's m eaning ." Serio, 384 Md. at 373, 863 A.2d at 962; Pete, 384 Md. at 57-58, 862 A.2d at 425; O Connor, 382 Md. at 114, 854 A.2d at 1198 (quoting Taylor v. NationsBank, 365 Md. 166, 181, 776 A.2d 645, 654 (2001)). Thus, the provisions must be read in a commonsensical perspective to avoid a farfetched interpre tation. Serio, 384 Md. at 373, 863 A.2d at 962; Graves v . State, 364 Md. 329, 346, 772 A.2 d 1225, 1 235 (200 1); Frost v. State, 336 Md. 125, 137, 647 A .2d 106, 112 (199 4); Dickerso n v. State, 324 Md. 163 , 171, 596 A.2d 6 48, 652 (1991). III. Discussion In this case, Cain argues that the trial court erred by requiring him to register as an offender under Md. Code (1957, 2001), § 11-701(d)(7) of the Criminal Procedure Article. In Cain s view , his convictio n for seco nd degre e assault does not fall within this definition of offender because assault is not an enumerated offense requiring registration, the elements of assault do not mandate registration and the factual predicate to which he pled -8- guilty, do not establish a violation of the statute.8 The State concedes that second degree assault is not a crime enumera ted in the statu te, but mainta ins that Cain should be required to register as an offender because the underlying facts establishing the assault were sexual in nature, mandating registration, rather than the elements of the offen se. Essentially, Ca in argues that the elements of the crime of assault for which he was convicted negate the registration requirement, while the State asserts that the underlying facts to wh ich Cain pled guilty mandate registration. The General Assembly originally considered Maryland s offender registration laws in response to the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Program ( Wetterling Act ), which was enacted as part of the Violent Crime Control and Law Enforcement Act of 1994. See Pub.L. No. 103 -322, 108 Stat. 1796 (1 994), codified at 42 U.S.C. § 14071 (2000), to address crimes of violence and molestation committed against children in the United States. H.R.Rep. No 103-392, at 3 (1993). The Wetterling Act directs the United States Attorney General to establish guidelines for registering sex offen ders and p roviding n otification of individuals c onvicted o f sexually violent offenses, criminal offenses against minors, or those determined to be sexually violent 8 Cain, in his brief, also relies upon the Un ited Stat es Sup reme C ourt cas e, Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000 ) to support his proposition that second degree ass ault is not a sexual offense and that the facts justifying a sentence enhancement by requiring him to register as an offender were not established in the record. We no te, how ever, that our rece nt decisions in Young v. State, 370 Md. 686, 806 A.2d 233 (2002) and Sweet v. State, 371 M d. 1, 806 A .2d 265 (2 002) estab lish that Apprendi has no applica tion to M aryland s offen der reg istration r equirem ents. -9- predators. See 42 U.S .C. § 14071. Each state had until September 13, 1997, to enact legislation implementing a sex offender registration statute in conformity with the federal guidelines or face the loss of certain federal funds apportioned to the states to deter crime. See 42 U.S.C. § 14071(g)(2)(A). In May, 1996, Congress amended the Wetterling Act by renaming it Megan s Law and required states to add language to their statutes mandating the release of relev ant sex offen der reg istrant inf ormatio n nece ssary to pr otect the public. See H.R. 2137, 1 04th C ong. (1 996), re printed in 110 S tat. 1345 (1996). The federal act, as interpreted by the Department of Justice, specified that the registration requirements constitute a floor for s tate registration systems, not a ceiling, and States were afforded great latitude in designing their sex off ender regis tration statutes and the criteria for which a person may be classified as an of fende r. See Final Guidelines, 61 Fed.Reg. 15110, 15112, as amended, 64 Fed.Reg. 572 (1999). To date, all fifty states have adopted some form of sex offender registration program.9 9 See A LA. C ODE §§ 13A-11-200 to -203 (1994); A LASKA S TAT. §§ 12.63.010 to -100, 18.65.087 (2000); A RIZ. R EV. S TAT. A NN. §§ 13-3821 to -3825 (2 001); A RK. C ODE A NN. §§ 12-12-901 to -920 (1999); C AL. P ENAL C ODE § 290 (1999), and CAL. W ELF. & INST. C ODE § 6600 (19 98); C OLO . R EV. S TAT. A NN. § 18-3-41 2.5 (1999 ); C ONN. G EN. S TAT. A NN. §§ 54250 to -261 (20 01); D EL. C ODE A NN. TIT . 11, § 4120 (2000); F LA. S TAT. A NN. §§ 775.21, 944.606 (2001); G A. C ODE A NN. § 42-9-44 .1 (1997); H AW. R EV. S TAT. § 846E (1999, 2004 Cum. S upp.); I DAHO C ODE §§ 18-8301 to -8 326 (2000); 730 ILL. C OMP. S TAT. A NN. 150/1 to /12, 725 ILL. C OMP. S TAT. A NN. 205/0.01 ( 2000); I ND. C ODE A NN. §§ 5-2-12-1 to -13 (2000); IOWA C ODE A NN. § 692A (2 001); K AN. S TAT. A NN. §§ 22-4901 to -4 910 (2000); K Y. R EV. S TAT. A NN. §§ 17.500 -.540 (200 0); L A. R EV. S TAT. A NN. §§ 15:540-549 (2001, 2005 Supp.); M E. R EV. S TAT. A NN. TIT . 34-A, C H. 15, §§ 11201-11228 (1999); M D. C ODE (2001), § 11-704 of the Criminal P rocedure A rticle; M ASS. A NN. L AWS C H. 6, §§ 178C-1780 (2001); (contin ued...) -10- In an effort to comply with the federal statute, the General Assembly enacted a statute, entitled Registration of Offenders, which provided that sexual offenders, upon release from prison, must notify local law enforcement of his or her presence in the county where he or she intende d to live. See 1995 M d. Law s, Chap . 142. The Maryland statute defin ed a child sexual offender as a person who: (2)(i) Has been convicted of violating § 35C of this article for an offense involving sexual abuse; (ii) Has been convicted of violating any of the provisions of §§ 462 through 464B of this article for an offense involving an individual under the age of 15 years; (iii) Has been granted probation before judgment after being found guilty of any of the offen ses listed in items (i) and (ii) of this paragraph and has been ordered by the court, as a condition of probation, to comply with the requirements of this section; (iv) Has been convicted o f, or granted probation be fore 9 (...continued) M ICH. C OMP. L AWS A NN. § 28.721 -28.732 (2 000); M INN. S TAT. A NN. § 243.166 (2001, 2005 Supp.); M ISS. C ODE A NN. §§ 45-33-21 to -57 (200 0); M O. A NN. S TAT. §§ 589.400-.425 (2001); M ONT. C ODE A NN. §§ 46-23 -501 - 512 (1999); N EB. R EV. S TAT. §§ 29-4001 to 294011 (2000, 2004 Cum. S upp.); N EV. R EV. S TAT. A NN. §§ 179B-179D (1999 Supp.); N.C. G EN. S TAT. §§ 14-208.5 to -208.32 (1999); N.D. C ENT. C ODE § 12.1-32-15, § 25-03.3-01 (1999); N.H. R EV. S TAT. A NN. § 651-B (2000, 2004 Cum. Supp.); N.J. S TAT. A NN. §§ 2C:7-1 to -11 (20 00); N .M. S TAT. A NN. §§ 29-11A-1 to -8 (1997); N.Y. C ORRECT. L AW § 168 (2004 Cum. Supp.); O HIO R EV. C ODE A NN. §§ 2950.01-.99 (2000); O KLA . S TAT. A NN. TIT . 57, §§ 582-587 (2001); O R. R EV. S TAT. §§ 181.585-.606 (1999); 42 P A. C ONS. S TAT. A NN. §§ 97919799.6 (1998); R.I. G EN. L AWS §§ 11-37.1-1 to .1-19 (1999); S.C. C ODE A NN. §§ 23-3-400 to 3-530 (2000, 2005 Cum. Supp.); S.D. C ODIFIED L AWS §§ 22-22-30 to 2 2-22-40 (2000); T ENN. C ODE A NN. §§ 40-39 -101 to -39 -110 (200 0); T EX. C RIM . P. C ODE A NN. § 62 (2001, 2004 Cum. S upp.);U TAH C ODE A NN. § 77-27-21.5 (2003 ); V A . C ODE A NN. § 19.39 0.1, § 37.1-7 0.1 (2000); V T. S TAT. A NN. TIT . 13, §§ 5401-5 413 (199 8); W ASH. R EV. C ODE A NN. §§ 9A.44.130-.44.140, 4.24.550 (2000); W. V A. C ODE §§ 15-12 -1 to -12-9 (2 004); W IS. S TAT. A NN. § 301.45 ( 2 000); W YO. S TAT. A NN. §§ 7-19-301 to -19-3 06 (2003). -11- (v) (vi) judgment after being found guilty of, violating § 464C of this article and has been ordered by the court, as a part of a sentence or condition of probation, to comply with the requirements of this section; Has been found n ot criminally resp onsible for any of the offenses listed in items (i) and (ii) of this section; or Has been convicted in another state of an offense th at, if committed in this state, wo uld constitute one of the offenses listed in items (i) and (ii) of this paragraph. Md. C ode (19 57, 199 6 Rep l. Vol.), A rt. 27, § 7 92. In 1997, Senate Bill 605 was ena cted to exp and the sex ual offen der registration statute to comply with the 1996 amendments to the Federal Wetterling Act, and established additional classifications of offenders subject to the statutory registration requirements, codified in Article 27, Section 792 of the Maryland Code , effect ive on M ay 22, 19 97. See 1997 Md. Laws, Chap. 754. In addition to child sexual offenders, the new registration provisions made Se ction 792 a pplicable to offende rs, sexually vio lent offenders, and sexually violent p reda tors, wh ich w ere d efin ed in dividually by category. See 1997 Md. Laws, C hap. 754. T he expan ded law d efined o ffender as: (6) Offender means a person who is ord ered by the co urt to register under this section and who: (i) (ii) (iii) (iv) Has been convicted of violating § 1, § 2, or § 338 of this article; Has been convicted of violating § 337 of this article if the victim is under the age of 18 years; Has been convicted of the common law crime of false imprisonment if the victim is under the age of 18 years and the of fender is n ot the victims parent; Has been convicted of violating § 464C of this article if the victim is under the age of 18 years; -12- (v) Has been con victed of so liciting a minor to e ngage in sexual con duct; (vi) Has been convicted of violating § 419A of this article; (vii) Has been convicted of violating § 15 of this article or any of the provisions of §§ 426 through 433 of this article if the intended prostitute is under the age of 18 years; (viii) Has been convicted of a crime that involves conduct that by its nature is a sexual offense against an individual under the age of 18 years; (ix) Has been convicted of an attempt to commit a crime listed in items (i) through (viii) of this paragraph; or (x) Has been convicted in another state of an offense th at, if committed in this State, would constitute one of the offenses listed in items (i) through (ix) of this paragraph. Md. Code (1957, 1996 Repl. Vol., 1997 Cum. Supp .), Art. 27 § 792(a)(6). A sexually violent offender was defined as a person who: (i) Has been convicted of a sexually violent offense; (ii) Has bee n convicte d of an atte mpt to comm it a sexually violent offense; or (iii) Has been convicted in another state of an offen se that, if committed in this State, would constitute a sexually violent offense. Md. Code (1957, 1996 Repl. Vol., 1997 Cum. Supp.), Art. 27 § 792(a)(10). In addition, the statute defined a sexually violent predator as a person who: (i) Is convicted of a second or subsequent sexually violent offense; and (ii) Has been determined in accordance with this section to be at risk of committing a subsequent sexually violent offense. Md. Code (1957, 1996 Repl. Vol., 1997 Cum. Supp.), Art. 27 § 792(a)(11). Section 792 defined a sexually violent offense as: (i) A violation of any of the provisions of § 462, § 463, § 464, -13- § 464A, § 464B, or § 464F of this article; or (ii) Assault with intent to commit rape in the first or second degree or a sexual offense in the first or second degree as previously proscribed under former § 12 of this article. Md. C ode (19 57, 199 6 Rep l. Vol., 19 97 Cu m. Sup p.), Art. 2 7 § 792 (a)(9). The Registration of Offenders Act was not substantially amended by Chapters 473 and 521, Acts 1998; Chapters 317 and 402, Acts 1999; and Chapter 314, Acts 2000. In 2001, the General Assembly repealed Section 792 and recodified the offender registration provisions. See 2001 Md. Laws, Chap. 10. The 2001 version of the Maryland offender registration law was in effect at the time of Cain s conviction for second degree assault and the definition of offender contained in Section 11-701 o f the Criminal Proced ure Article substantively has not cha nged s ince its e nactm ent in 19 97. Under the statutory framework, a person who meets the criteria of any of the categories must register pursuant to Section 11-704 of the Criminal Procedure Article.10 A 10 Md. Code (2001), § 11-704 of the C riminal Procedure Article states: A person shall register with the person s supervising authority if the person is: (1) a child sexual offen der; (2) an offender; (3) a sexually violent offender; (4) a sexually violent predator; (5) a child sexual offende r who, be fore mov ing into this State, was required to register in an other stat or by a federal, milit ary, or Native American tribal court for a crime that occurred before October 1 ,1995; (6) an offender, sexually violent o ffender, o r sexually (contin ued...) -14- person who registers and is a resident of Maryland at the time they are released from prison, receives probation, o r is subject to a s entence tha t does not include imprisonment, must register no later t han the time of release , probat ion or se ntencin g. See Md. Code, § 11705(b)(1) of the Criminal Procedure Article. Registrants who are not residents of Maryland must register within seven days of establishing a temporary or permanent residence in the State or appl y for a state driver s license. See Md. Code, § 11-705(b)(2) of the Criminal Procedure Article. Individuals classified as child sexual offenders must register in person with the local law enforcement agency of th e county wh ere they will reside, see Md. Code, § 11-705(c) of the Criminal Procedure Article, and also must provide the supervisin g authority with a sign ed stateme nt, which in cludes his or her name and any aliases, address, 10 (...continued) violent predator, who before moving into this State, was required to register in ano ther state or by a f ederal, military, or Native American tribal court for a crime that occurred before July 1, 1997; or (7) a child sexual offender, offender, sexually violent offender, or sexually violent predator who is required to register in another state, who is not a resident of this State, and who enters this State: (i) to carry on emp loyment or a v ocation tha t is full-time or part-time for a period exceeding 14 days or for an aggregate period exc eeding 30 days during a calendar year, whether financially compensated, volunteered, or for the purpose of government or educational benefit; or (ii) to attend a public or private educational institution, includin g a seco ndary sch ool, trade or professional institution, or institution of higher education, as a full-time or part-time stud ent. -15- place of employment and/or educational institution, social security number, and a description of the crim e for w hich the registran t was co nvicted . See Md. Code , § 11-706 of the Criminal Procedure Article. The Department of Public Safety and Correctional Services ( DPSCS ) maintains a central registry containing the statement, as well as, photographs and fingerprints of the registrant, see Md. Code, § 11-708 of the Criminal Procedure Article, which is then forwarded to the Federal Bureau of Investigation s national database of off enders . See Md. Code, § 11-713 of the Criminal Procedure Article. In addition, the Department is to make the registration statements or informa tion about registration statements available to the public, including posting a current listing of each registrant s name, crime and other identifying inform ation on the inter net. See Md. Code, § 11-717 of the Criminal Procedure Article. The term of an individual s registration varies based upon that person s classification under the statute. Sexually violent predators are subject to the harshest mandated registration period and must re gister ev ery ninety da ys for life. See Md. Code, § 11-707(a)(1)(3)-(4) of the Criminal Procedu re Article. Whereas, offende rs, child sexu al offend ers and sex ually violent offenders must register annually for ten years. See Md. Code, § 11-707(a)(2) of the Criminal Procedure Article. In the present case, second degree assault to which Cain pled guilty and was convicted is not one of the enumerated crimes in the statute requiring registration, such as rape, -16- kidnaping, false impriso nment, or violations o f the child porno graphy s tatute. See Md. Code, § 11-701(b)(2) and (d)(1)-(5) of the Criminal Procedure Article. The State asserts, nevertheless, that Cain should be required to register because the facts contained in the statement of facts underlying the assault by their nature constituted a sexual offense under Section 11-701(d)(7). The State s argument suggests that the facts supporting the statement of charges should trigger the registration requirement under 11-701(d)(7), even if the elements of the charged offense do not establish that the crim e involves conduct that is a sexual offen se again st a mino r. Beyond the enumerated crimes, should the elements of the crime for which Cain pled and stands con victed or the facts that con stitute the orig inal chargin g docum ent prior to indictment be used to determine the requirement to register under Section 11-701(d)(7) of the Criminal Procedure Article? In formulating the language of Section 11-701(d)(7), the General Assembly chose the words to define an offender as one convicted of a crime that involves conduct th at by its nature is a sexual offense against a minor. Use of this language suggests that the elements of the crime for which one stands convicted is that to which we must look to dete rmine w hether registra tion is appropriate. To determine otherwise , would be to read the word crime out of the def inition and re ly solely on the off ender s co nduct. This interpretation of the plain mean ing of the definition at issue find s support in the statute s legislative history informed by the federal act s interpretation. The Maryland Offender Registration Act was first introduced as Senate Bill 605 and originally did not -17- contain a specific category of offenders. See 1st Reading, S.B.605 (Jan. 31, 1997). The DPSCS submitted a letter to the Senate stating that Senate Bill 605 would not bring Maryland into full complian ce with the Wetterling Act and subsequent U.S. Department of Justice guid eline s . . . du e, in p art, to the b ill s d efic ienc y in sp ecif ying all of the crimes against minors covered by Wetterling. See DPSCS Comments on S.B. 605 (1997) (Feb. 27, 1997). Included among th e offense s in the We tterling Act th at Senate B ill 605 did n ot contain was a crime co nsisting of an y conduc t that by its nature is a sexual offense against a minor. 42 U.S.C. §1 4071(a)(3 )(A)(vii) (20 04 Supp .), as amend ed by Pub. L . 104-145 , § 2, 110 S tat. 1345 (1996); Pub. L. 104-236, §§ 3-7, 110 Stat. 3096, 3097 (1996) (emphasis added). On April 4, 1996, the Department of Justice ( DOJ ) promulgated guidelines interpreting the definition of criminal offenses that consist of conduct that by its nature is a sexual offense against a minor: Clause (vii) covers offenses consisting o f any condu ct that by its nature is a sexu al offe nse aga inst a mi nor. This clause is intended to insure uniform coverage of convictions under statutes defining sex offenses in which the status of the victim as a minor is an ele ment o f an offen se, such as specially defined child molestation offenses, and other offenses prohibiting sexual activity with underage persons. States can c omply with th is clause by including convictions under these statutes uniformly in the registratio n requirem ent. See DOJ, Final Guidelines for the Jacob Wetterling C rimes Ag ainst Childre n and Se xually Violent Offender R egistration Act ( Final Guidelines ) , 61 Fed .Reg. 1 5110 ( 1996) , amended -18- by 62 Fed .Reg. 5 72 (Jan . 5, 1999 ) (emph asis add ed). Therefore, the elements of the offense were th e grava men o f the inte rpretive guidelin es. In an effort to bring M aryland s registra tion act in com pliance w ith the Wetterling Act, the House adopted a companion bill, House Bill 343, to broaden the scope of the registration law by changing the term child sexual offender to offender. See Floor Report, H.B. 343 (1997). The bill file for House Bill 343 contains copies of both the Wetterling Act an d the D OJ s F inal Gu idelines , indicating the General Assembly s awareness of both in draftin g the am endm ents to M aryland s registrati on law s. See Bill File, H.B. 343 (1997). The Floo r Report fo r House B ill 343 stated, [ t]his bill is designed to bring the S tate into complian ce with tha t part of the [ Wetterling A ct] dealing w ith [child offenders and] sex offender . . . [and] expand[s] the types of offenders required to register to include offende rs convicted of . . . crime[s] that involve[] conduct that by its nature is a sexual offense against an individual under the age of 18 years. Floor Report, H.B. 343 (emphasis added). On April 5, 1997, House Bill 343 was adopted and set forth the types of crimes that required an offender to registe r. See H.B. 343 . Subsequ ently, on April 7 , 1997, Sen ate Bill 605 was amended to include the category of offenders as provided by the final adopted version of House Bill 343 . See Amendment to S.B. 605 (1997). Ultimately, the Governor signed Senate Bill 605 w ith the new amendments and vetoed the House Bill version as redund ant, while noting that both accomplished the same purpose of compliance with federal guidelines. See Letter from the Hon orable Paris N. Glendening, Governor, to the Honorable Casper R. -19- Taylor, Jr., S peake r of the H ouse (M ay 22, 19 97). Obv ious ly, the definition of offender in the Maryland statute is derived from the corresponding definition in the Wetterling Act. As explained supra, the U.S. Attorney General s Final Guidelines explained that the Wetterling Act s provision relating to crimes involving conduct that is inherently a sexual offense was intended to insure uniform coverage of convictions under statutes defining sex offenses and was based upon the elements of the offen se. See Final G uideline s, 61 Fe d.Reg . at 1511 2. In the present case, the elements of second degree assault for which Cain was convicted do not con tain referen ce to a sexual offense against a minor. The statutory crime of assault in the second degree consists of the common law offenses of assault, assault and batte ry, and batte ry, 11 unless aggravated to the greater offense of first degree assault by the use of a fire arm or i ntent to c ause se rious ph ysical injur y. See Robinson v. State, 353 Md. 683, 695-96, 728 A.2d 698, 703-04 (1999). These elements alone do not, necessarily and solely, con templa te cond uct that b y its nature involv es a sex ual off ense. In order to qualify a person as an o ffender pursuan t to Section 11-701(d )(7), there must be something more than an assault. The statute requires that sexual conduct that involves an under age perso n also mu st be presen ted within the crime charged and which the 11 Assault has been defined as either [] an attempt to commit a battery which is the unlawful application of force to the person of another, or an intentional placing of another in apprehension of receiving an immediate battery. Snowden v. State, 321 Md. 612, 617, 583 A.2d 10 56, 1059 (1991 ). -20- person stands convicted. To hold otherwise would expose individuals to possible registration that have been convicted of crimes that do not include elements related to sexual conduct with a minor, an d would interpret the statute in a manner inconsistent with the General Assembly s intended coverage of qualified offenders. Consistent with this view, other state courts ha ve held that individuals convicted of crimes of which the elements do not inheren tly and facially prohibit conduct constituting a sexual offense, are not required to register as a sex offende r. In State v. Chun, 76 P.3d 935, 936 (Haw. 2004), the defendant pled no contest to a charge of indecent exposure for which the trial court ordered him to register as a sex offender under H awaii s reg istration statute pertaining to criminal offenses comprising sexual conduct toward a mino r. Id. at 936-37.12 The defendant appealed and the Supreme Court of Hawaii held that the crime of indecent exposure did not con stitute a sexua l offense a gainst a min or requiring the defen dant to register as a sex of fende r. Id. at 942. In rea ching its conclusion, the Hawaii Court explained that, an offense comprises criminal sexual conduct toward a minor if, and only if the elements of the offense generically describe criminal sexual conduct toward a minor. Accordingly, if a person s actions entail criminal sexual conduct toward a minor, the prosecution should charge the person with an offense that includes criminal sexual conduct among its elements if it wishes to implicate the provisions of [the state sex offender registration statute]. 12 Hawaii s sex offender registration statu te manda ting registration of an of fender is the same as Maryland s definition of offender under Section 11-701(d) of the Criminal Proced ure Ar ticle. See H AW.R EV.S TAT.A NN., § 846E-1 (1997, 20 04 Cum. Su pp.). -21- Id. at 942 (emphasis ad ded). The Court further noted that the elements of inde cent exposure likewise [did] not entail conduct that by its nature is a sexual offense against a minor because the U.S. Attorney General s Final Guidelines interpreting the Wetterling Act, upon which the Hawaii statute was taken verbatim, stated that the provision applied to offenses where the victim s status as a minor was an element of the offense, which indecent exposure did not include . Id. at 942 n.13 (citations omitted). Likewise, in Sequeira v. State, 534 S.E.2d 166 (Ga.App. 2000), the defendant pled guilty to two counts of simple battery, one count of affray13 and one count of public intoxica tion. Id. at 166. The trial court ordered the defendant to register as a sex offender under Georgia s registration sta tute 14 because one of the simple battery convictions involved the defenda nt placing h is hand on the breasts an d betwee n the legs of a fifteen year o ld girl. Id. The defend ant appealed and the appellate court held that the trial court [had] erred in ordering [the defendant] to register as a sexual offender because the underlying facts of the battery charge co uld not be used to establish a co nviction for a sexual offense be cause battery itself was n ot an inh erently sex ual off ense. Id. See also State v. Goins, 92 P.3d 181, 185 (Wash. 2004) (holding that because the legislature did not classify s econd de gree assau lt 13 In Georgia, the crime of affray is a misdemeanor defined by statute as the fighting by two or more persons in some public place to the disturbance of the public tranqui lity. G A.C ODE A NN., § 16-11-32 (1968) 14 Georgia s sex offende r registration statu te requiring re gistration of a n offen der is identical to Maryland s definition of offender under Section 11-701(d) of the Criminal Proced ure Ar ticle. See G A.C ODE A NN., § 42-1-12(a)(4)(A) (199 7). -22- with the intent to commit indecent liberties as a sex of fense, the leg islature did no t see fit to require every person convicted of that general crime to register as a sex offender upon release . ) (emp hasis in o riginal). In the case sub judice, the trial judge acknowledged that Cain had agreed to plead guilty to second degree assault, which the judge described as an unpermitted touching. The State entered a nolle prosequi on the other charges against Cain, relating to child abuse and a sexual offense which left only the elements of second degree assault, i.e. the unlawful application of force to another person, remaining without implication of sexual conduct involving a minor. Accordingly, based upon the circumstances of this case, th e Circuit Court erred in denying Cain s Motion to Correct Illegal Sentence, and that condition of probation requiring Cain to register as an offender under Sectio n 11-701(d)(7) of the Criminal Proced ure Ar ticle is va cated. JUDGMENT OF THE CIRCUIT COURT FOR CALVERT COUNTY REVERSED, AND CASE REMA NDED TO TH E CIRCU IT COURT WITH INSTRUCTIO NS T O VACATE THE C ONDIT ION OF PROBATION THAT REQU IRES THE PETITIONER TO REGISTER AS AN OFFENDER PURSUANT TO MD. CODE, § 11-701(d)(7) OF THE CRIM IN AL PROCEDURE ARTICLE. COSTS TO BE PAID BY CALVERT COUNTY. -23-