DAQUAN MIDDLETON v. STATE OF MARYLAND
Court of Special Appeals of Maryland, Battaglia, August 28, 2018,
Charging – A defendant charged with murder cannot be convicted on an uncharged count of first-degree assault unless both the murder and the assault rely on the same facts

Facts: In 2016, a man riding home from work on his bicycle in Baltimore’s Waverly neighborhood when he was attacked and robbed by a group of 5-8 juveniles, including Daquan Middleton.
One of the attackers stabbed the victim multiple times (and accidentally stabbed Middleton). The group took the victim’s phone and bicycle and ran off.
Middleton and a friend fled and called 911, falsely claiming that Middleton had been attacked.
Sgt. Bob Cherry “put two and two together” and confronted Middleton, who eventually directed police to where he had abandoned the victim’s bicycle.
Both Middleton and his friend claimed that they intended to rob the victim, not hurt him, though both admitted to kicking and “stomping” the victim while he was on the ground.
Middleton was charged with first-degree murder, conspiracy to commit first-degree murder, armed robbery, conspiracy to commit armed robbery, robbery, conspiracy to commit robbery, theft, and wearing and carrying a dangerous weapon openly and with the intent to injure.
After a bench trial, the judge found that Middleton didn’t decide to rob the victim until after they had beat him. Therefore, he acquitted him of felony-murder as well as the specific-intent forms of murder.
The trial judge found Middleton guilty of first-degree assault, however, despite the fact that this was not initially charged.
Middleton appealed, arguing that first-degree murder is not a lesser-included offense to murder.

Held: The Court of Special Appeals held that, because first-degree assault is not a lesser included offense to murder, the conviction was invalid and must be vacated.
Charging – Lesser-Included – A defendant may only be convicted of an uncharged lesser included offense if the elements of the lesser crime are included in the elements of the greater (charged) crime and both crimes rely on the same act(s).
Assault – All assaults in Maryland are second-degree assaults. Some of these can also be charged as first-degree assaults.
First-Degree Assault – A second-degree assault can ALSO be a first-degree assault if it involves:
• Use of a firearm
• OR intentionally causing or attempting to cause serious physical injury
Homicide Charges- There are four separate categories of homicide depending on the mental state of the suspect: homicide with intent to kill, homicide with intent to cause substantial harm (where death occurs), death during a crime, and death by negligence. Depending on other factors, these categories could either be raised to 1st-degree murder or lowered to manslaughter.
Homicide Charges – Intent to Kill- Where there is an intent to kill, a homicide could be charged as:
• First-degree murder if there is pre-meditation or certain other aspects
• Second-degree murder (standard)
• Voluntary manslaughter if the rule of provocation or imperfect defense applies
Homicide Charges – Intent to Cause Substantial Harm- Where there is an intent to cause grievous/substantial bodily harm, a homicide could be charged as:
• Second-degree murder (standard)
• Voluntary manslaughter if the rule of provocation or imperfect defense applies
Homicide Charges – During a crime – Where a homicide (foreseeably) occurs during the course of a crime, it could be charged as:
• First-degree murder for certain felonies
• Second-degree murder for felonies
• Involuntary manslaughter
Homicide Charges- Negligence – Where a homicide occurs as the result of a negligent act, it could be charged as:
• Second-degree murder (depraved heart)
• Involuntary manslaughter for gross criminal negligence
Homicide- Lesser-Included- First-degree assault (intent to cause serious injury) is a lesser-included offense of murder (intent to harm).
From the Case: “Because Middleton was charged under the language in the short-form indictment, he was charged, among other things, with murder in the second degree, based upon the specific intent to inflict grievous bodily harm…. We conclude that the uncharged offense at issue here, assault in the first degree, based upon the specific intent to cause serious physical injury to another, satisfies the elements test, and we turn next to consider whether the uncharged offense and the greater offense were based upon the same act or acts.”
Robbery- Lesser-Included – First-degree assault (intent to cause serious injury) is not a lesser-included of robbery because robbery can be performed without the intent to cause serious injury.
From the Case: The murder (by stabbing) that Middleton was charged with was different than the assault (by stomping the victim) that Middleton was convicted with. “We are constrained to hold that Middleton’s conviction of first-degree assault was based, as the court found, upon a separate act than the murder. The only first-degree assault impliedly charged was a lesser-included offense of murder. Therefore, Middleton was convicted of an offense that was not charged, either expressly or impliedly, in the indictment, and… the judgment of conviction and its attendant sentence are illegal and must be vacated.”
From the Case: Because the assault conviction was part of a “package” of crimes for which the defendant was sentenced, “we deem it appropriate to give the court an opportunity to redefine the package’s size and shape as it thinks appropriate.” Assault conviction vacated, remaining sentences vacated and sent back for re-sentencing.