Assault conviction permitted as lesser-included offense

Maryland’s second-highest court upheld a Washington, D.C., woman’s conviction for second-degree assault on the grounds that the charge was implicitly included when the woman was accused of a more serious assault offense.

The 23-page reported opinion found it was proper for an Anne Arundel County judge to submit the lower-level assault charge to a jury because it was a lesser-included offense that fell under the more serious felony that was originally charged.

Senior Judge Charles E. Moylan Jr., authored the opinion for a three-judge panel of the Maryland Appellate Court.

“There is not a single element of simple second-degree assault that is not also an indispensable element of aggravated second-degree assault,” Moylan wrote. “With respect to any actual element of simple second-degree assault, it necessarily had been charged and could, therefore, have come as no surprise as an element.”

The woman at the center of the case, Tia Love, was convicted of second-degree assault and trespassing charges at a trial in Anne Arundel County Circuit Court in April 2022. According to the Appellate Court’s opinion, prosecution witnesses testified that Love began shouting at another customer at a Five Below store at the Arundel Mills Mall on Dec. 21, 2019.

When a store employee tried to intervene, Love advanced on him, prompting the employee to call the police. When an officer arrived, Love refused to leave the store and was arrested. During the arrest, Love became unresponsive and the officer contacted an ambulance.

As emergency medical responders were preparing to transport Love to the hospital, she became combative and kicked one of the EMTs in the leg, according to the opinion. The original charges against Love included a felony count of assault on a law enforcement officer, a category that included the EMT.

A jury ultimately convicted Love of a misdemeanor, simple second-degree assault, after the trial judge agreed to offer the charge to jurors as a lesser-included offense.

Love’s lawyers with the Maryland Office of the Public Defender argued that prosecutors should not have been permitted to offer the lower-level assault charge because it was not explicitly included in the statement of charges.

“The prosecution should be limited to the wording of the charges in the charging document,” Love’s lawyer wrote. “They should not be permitted to introduce a new theory of guilt for an offense.”

Love’s lawyer declined to comment on the Appellate Court’s decision.

Moylan rejected the defense’s position, finding that the entirety of the lesser charge was included under the original felony offense.

The felony offense requires that the defendant caused a “physical injury” as opposed to a “minor injury,” Moylan wrote. The higher-level offense also has to do with the type of victim — law enforcement officers, firefighters and EMTs are included — while the lower-level assault charge applies to any victim.

Moylan found that a conviction on the lesser charge was permissible because the elements of misdemeanor assault were necessarily included in the felony that was charged.

The EMT, identified in court records as A.F., “did not lose her capacity as a generic assault victim,” Moylan wrote. “Even as a non-E.M.T., she enjoyed the generic right not to be kicked.”