Moore v. State

Moore v. State, 388 Md. 623, 882 A.2d 256 (2005), involved a charge of common law attempt to commit a sexual offense in the third degree. In Moore, the indictment charged, inter alia, that Moore did "unlawfully attempt to commit a sexual offense in the third degree upon a fourteen-year-old minor," id. at 627, in violation of CL 3-307(a)(4) and (5). CL 3-307 defines sexual offenses in the third degree. Under CL 3-307(a)(4), a person may not engage in a "sexual act," as defined in CL 3-301(e), with another "if the victim is 14 or 15 years old, and the person performing the act is at least 21 years old." Similarly, under CL 3-307(a)(5), a person may not engage in "vaginal intercourse," as defined in CL 3-301(g), with another "if the victim is 14 or 15 years old, and the person performing the act is at least 21 years old." Moore had used an internet chat room to attempt to contact a minor. Under the agreed statement of facts in the case, however, Moore was at all times communicating with an adult police officer who was posing as a 14-year-old girl. Using the internet for communication, Moore told the police officer that he wanted to engage in oral sex with her and her 14-year-old friend. Moore arranged to meet the purported minors in Frederick. At the appointed hour, Moore showed up, and he was arrested by members of the Maryland State Internet Crimes Against Children Taskforce. In a statement to arresting officers, Moore admitted that he drove from Reston, Virginia, to Frederick, Maryland, with an intent to meet two 14-year-old minors and engage in oral and vaginal sex with both girls. Moore was convicted of attempted third degree sexual offense. Moore appealed, but the Court of Appeals issued a writ of certiorari prior to disposition of Moore's appeal in the Court. The Court of Appeals framed the question before it quite narrowly, stating, 388 Md. at 626: The ... question presented in this case is whether the crime of attempted third degree sexual offense, predicated upon either 3-307(a)(4) or 3-307(a)(5), covers the situation where the defendant, who is over 21 years of age, contacts and arranges to meet another person for a sexual act or vaginal intercourse, where the defendant travels to the arranged meeting place, where the defendant believes that the other person is 14 years old, but where the other person is actually an adult undercover police officer. The Court summarized the State's argument in Moore as follows: Because Moore's purpose or intent was "to engage in unlawful sexual conduct with a minor," and because, according to the State, he "took a substantial step towards commission of the crime, he can be convicted of attempt, even if the person he thought was a minor was an undercover adult police officer." (Moore, 388 Md. at 643.) The Court of Appeals disagreed, pointing out that because there was no 14-year-old involved in Moore's case, there could be no third degree sexual offense even if Moore had followed his intent through to a conclusion, and if there could be no consummated third degree sexual offense, there could be no attempted third degree sexual offense under the agreed facts presented in the case. The Court stated, id. at 643-44: Preliminarily, it is questionable whether count two of the indictment the charge of attempted third degree sexual offense even covered the State's theory of the case. Count two flatly charged that the defendant, in Frederick County, "did unlawfully attempt to commit a sexual offense in the third degree upon a fourteen year old minor." . Under the agreed statement of facts, there was no evidence of a fourteen-year-old minor present at the location in Frederick County or even a fourteen year old ever involved in the case. The language of count two may simply not cover an adult or fictitious person believed by the defendant to be a minor. Nevertheless, assuming arguendo that count two is sufficient to embrace the State's theory, we agree with the defendant that the crime of an attempted third degree sexual offense under the common law and under 3-307(a)(4) and (5), does not cover the situation presented by this case. In reaching our decision, however, we need not and shall not decide some of the issues raised by the defendant. Specifically, we shall not reach either the defendant's argument that there was no "substantial step that goes beyond preparation" or his argument based on "legal impossibility." The Court reviewed Maryland cases that have addressed strict criminal liability in the context of sexual offenses where there was no mens rea element with respect to the victim's age.