             REPORTED

IN THE COURT OF SPECIAL APPEALS

           OF MARYLAND


               No. 2541


        September Term, 2015

    _________________________


         VAQAR CHOUDRY

                   v.

      STATE OF MARYLAND

    _________________________


   Krauser, C.J.,
   Friedman,
   Salmon, James P.
        (Senior Judge, Specially Assigned),

                  JJ.

    _________________________

        Opinion by Friedman, J.

    _________________________


   Filed: February 3, 2017
       The question in this case is whether the crime of sexual solicitation of a minor can

be committed when there is no minor or a law enforcement officer posing as a minor

involved. We conclude that it cannot.

                              FACTUAL BACKGROUND

       In 2013, Vaqar Choudry sought the help of Corina Drury to find a prepubescent

female child with whom Choudry could have sexual relations. Drury did not procure such

a child for Choudry, but instead contacted the police to report Choudry’s plan. In recorded

conversations, Drury spoke to Choudry on the phone and in person to discuss the logistics

of procuring a minor for Choudry and what Choudry planned to do with that minor.

Although Drury never contacted a minor, she made up an elaborate story about a fake 12-

year old girl and called her “Chelsea.” Drury even asked the police for a picture of a “young

looking girl” that she could send to Choudry as proof that she had procured a minor for

him. A few weeks after Choudry’s initial request, Drury, acting on police instructions,

informed Choudry that the minor was ready for him and that he should meet Drury and the

minor at a motel later that day. When Choudry arrived at the motel, he was arrested by the

police. There was no minor or law enforcement officer posing as a minor at the motel when

Choudry was arrested.

       Choudry was charged with sexual solicitation of a minor and human trafficking.

After a bench trial, Choudry was found guilty of sexual solicitation of a minor and

sentenced to five years, all suspended, a $1,000 fine, and a two-year period of probation.
                                       DISCUSSION

       On appeal, Choudry contends that he cannot be found guilty of the crime of sexual

solicitation of a minor because, in his case, there was never a minor or a law enforcement

officer posing as a minor involved in his attempts to obtain a minor through Drury. He

contends that the plain language of the statute requires that there be an actual minor child

or a law enforcement officer posing as a minor. The State counters that, because Choudry

solicited a minor child through his agent Drury, there did not need to be an actual minor or

a particular minor available. We conclude that the statute unambiguously requires that a

defendant solicit a minor or a law enforcement officer posing as a minor, and, therefore,

we must vacate Choudry’s conviction.

       “The cardinal rule of statutory construction is to ascertain and effectuate the intent

of the Legislature.” Stoddard v. State, 395 Md. 653, 661-62 (2006). This process starts with

looking at the language of the statute. Id. “[E]ven when we believe that the language of the

statute renders legislative intent clear, [however,] it is appropriate to examine the

legislative history as a confirmatory process.” Gomez v. Jackson Hewitt Inc., 427 Md. 128,

160 (2012); see also Bourgeois v. Live Nation Entertainment, Inc., 430 Md. 14, 27 (2013)

(“Legislative history may be considered in an effort both to confirm what appears to be a

clear intent from the language itself and to discern legislative intent when that intent is not

entirely clear from the statutory language.”).

       The prohibition on sexual solicitation of a minor is found in Criminal Law (“CR”)

§ 3-324. That section reads:

                                             -2-
              (b) A person may not, with the intent to commit a violation of
              [various sex crime statutes], knowingly solicit a minor, or a
              law enforcement officer posing as a minor, to engage in
              activities that would be unlawful for the person to engage in
              under [various sex crime statutes].

Md. Code Ann., CR § 3-324(b) (emphasis added). The crime of sexual solicitation of a

minor, therefore, has three elements: (1) solicitation; (2) of a minor or a law enforcement

officer posing as a minor; and (3) to engage in a prohibited sex act.

       Although it is difficult to reconstruct the legislative disagreement that resulted in

this compromise language, it is obvious that the language selected as the second element

was an intentional compromise. Prior to 2004, the predecessor to CR § 3-324 prohibited

engaging in certain sexual acts with actual minors but did not apply to any non-minors.1

During the 2004 legislative session, SB512 was introduced in a form that would have

broadened this provision to include a prohibition not only on soliciting minors, but also on

soliciting any “individual the person believes to be a minor.” 2004 Sess., Senate Bill 512,

First Reading (available at https://perma.cc/SJ57-39NB). The House and Senate each


       1
         Prior to the passage of CR § 3-324, engaging in certain sexual acts with a minor
was prohibited through the common law. See Fiscal and Policy Note Revised, 2004 Sess.,
SB512; Quispe del Pino v. State, 222 Md. App. 44, 51 (2015) (stating that with the passage
of CR § 3-324 “sexual solicitation of a minor became a crime in Maryland for the first
time.”). The common law as it existed before the passage of CR § 3-324, however, did not
address the use of the internet or undercover officers posing as minors for investigatory
purposes. CR § 3-324 closed these loopholes so that defendants soliciting a minor through
any means, such as over the internet, or a defendant soliciting a law enforcement officer
posing as a minor can now be guilty of sexual solicitation of a minor. See e.g., Letter from
The Maryland Sheriffs’ Association, Inc. to Hon. Brian E. Frosh, Chairman and Members,
Judicial Proceedings Comm. (March 9, 2004) (on file Legislative Services Bill File SB512
(2004)).

                                            -3-
amended SB512 differently and, in the waning hours of the 2004 legislative session, a

conference committee proposed the compromise that became the law: rather than prohibit

solicitation based on the defendant’s subjective intent to solicit a minor, or anyone the

defendant thinks is a minor, the prohibition would be objective, banning the sexual

solicitation of a minor or a law enforcement officer posing as a minor. 2004 Sess., Senate

Bill 512, Enrolled Bill (available at: https://perma.cc/2A7N-5W4A). Thus, we hold that the

legislature intended courts to apply an objective standard to determine the second element

of the crime, whether the defendant solicited a minor or a law enforcement officer.

       In Choudry’s case, the parties agree that there was not an actual minor or law

enforcement officer posing as a minor solicited. Because the element of “a minor” or “law

enforcement officer posing as a minor” is required and was not fulfilled, Choudry did not

violate CR § 3-324. As a result, we must vacate his conviction.2

       The State’s argument that Choudry successfully attempted to solicit a minor through

an agent also must fail because attempted sexual solicitation of a minor is not a crime in

Maryland. The language of the CR § 3-324 does not include a prohibition on attempted



       2
          The State focuses its argument on this point: that by asking Drury to solicit a minor
for him, Choudry had already committed the crime of sexual solicitation of a minor even
if Drury did not go on to procure a minor. The State’s argument, however, focuses only on
the first element—solicitation specifically through an agent. The State’s argument does not
respond to the second element, whether there still must be a minor or law enforcement
officer posing as a minor involved. Of course, nothing in the language of the statute
suggests that depending on the means of solicitation, the other elements of the offense are
negated.


                                             -4-
sexual solicitation of a minor, nor is there a separate statute making it unlawful to attempt

sexual solicitation of a minor. Unless and until the Legislature creates such an attempt

crime, Choudry’s actions, no matter how repugnant and indefensible, were not a crime.3

                                          JUDGMENT OF THE CIRCUIT COURT
                                          FOR WASHINGTON COUNTY VACATED
                                          AND REMANDED FOR FURTHER
                                          PROCEEDINGS. COSTS TO BE PAID BY
                                          WASHINGTON COUNTY.




       3
         Choudry also argues that the rule of lenity should sway our analysis in his favor.
The rule of lenity, however, has no application. The rule of lenity is a rule of construction
that applies “when [a criminal statute] is open to more than one interpretation and the court
is otherwise unable to determine which interpretation was intended by the Legislature.”
Oglesby v. State, 441 Md. 673, 676 (2015). Here, the statute is not open to more than one
interpretation and, therefore, there is no need to employ the rule of lenity. See Richmond v.
State, 326 Md. 257, 269 (1992) (stating that because the legislative intent in that case was
clear, the rule of lenity was inapplicable.)

                                            -5-
