Ali v. State

EYLER, DEBORAH S., J. In the Circuit Court for Baltimore County, Sahar Begum Ali, the appellant, was convicted by a jury of thirteen counts of illegal access to computers, one count of identity theft, one count of unauthorized possession of a computer access code, one count of false application to purchase a regulated firearm, three counts of failure to comply with a peace order, and one count of harassment. All but the false application charge arose out of Ali’s conduct towards her therapist, Tina Marie Jenkins, Ph.D. Ali unsuccessfully moved for a new trial. Ali was sentenced to consecutive three-year terms for two counts of illegal access to computers; 18 months consecutive for identity theft; three years consecutive for unauthorized possession of a computer access code; and three years consecutive for false application to purchase a regulated firearm, for a total of 13 years and six months. The court imposed concurrent sentences of 90 days for each count of failure to comply with a peace order and concurrent sentences of three years for ten of the remaining eleven counts of illegal access to computers. 1 The court suspended all but one year of Ali’s sentence; authorized home detention and work release; placed her on probation for three years; and ordered her to have no contact with Jenkins, her practice, or her family. ²¹² Finally, Ali was ordered to remain in mental health counseling and treatment with a therapist.

Ali appeals her convictions and the denial of her motion for a new trial, presenting three questions for our review, which we have rephrased: I. Did the trial court err in denying Ali’s motion for judgment of acquittal and motion for anew trial on the charge of false application to purchase a regulated firearm?

II

Did the trial court erroneously allow testimony and admit other evidence that was protected by the psychotherapist-patient privilege?

III

Is Ali entitled to a new trial on all charges? For the reasons to follow, we answer Question I in the affirmative and therefore shall reverse Ali’s false application conviction. We answer Question II in the affirmative with respect to some of the testimony and other evidence that Ali complains about. As to Question III, we shall reverse Ali’s conviction for harassment, and remand that charge to the circuit court for further proceedings.

Otherwise, we shall affirm the convictions. FACTS AND PROCEEDINGS In March of 2008, Ali became a patient of Jenkins, a licensed clinical psychologist with a solo practice in Howard County. Six months later, in September of 2008, Jenkins terminated her treatment relationship with Ali. 2 At that time, Ali began seeing other mental healthcare providers. Around December of 2008, Ali called and emailed Jenkins, seeking to resume treatment with her. 3 Ali also had one face- ²¹³ to-face encounter with Jenkins at a local mall.

Jenkins agreed to resume treating Ali. At their first session, on December 30, 2008, Jenkins established boundaries for the treatment relationship. She agreed to see Ali in one 50-minute face-to-face therapy session per week. She also agreed to a maximum of two telephone calls with Ali per week with a maximum duration of 15 minutes per call.

At their second session, after treatment resumed, Jenkins asked Ali to sign a “safety contract.” According to Jenkins, a safety contract is a “plan of safety that is particular to each [patient] to make sure they don’t act on self-harm or suicidal thoughts.” Ali did so in a “safety contract” with Jenkins. Shortly thereafter, Ali’s conduct both inside and outside of therapy began raising concerns for Jenkins. At their third session, Ali brought “an up-close picture of a handgun and bullets.” She told Jenkins that she owned the gun for protection because she lived alone and anticipated working late hours in a nursing job for which she had recently applied. Jenkins was of the view that Ali intended to “get a shock response” by showing her the picture.

In subsequent sessions, Jenkins discussed the gun with Ali. Ali said she had sold it back to the dealership where she had purchased it. Jenkins sought to have Ali sign a “gun safety agreement” and provide proof that she no longer owned the gun, but Ali refused at that time. 4 Ali began, sending text messages to Jenkins’s business cell phone between in-person therapy sessions; calling her in excess of the agreed number of phone calls; and emailing her frequently. 5 In addition, Ali said something to Jenkins that suggested that Ali and her father were contemplating or had contemplated suing Jenkins for professional malpractice. ²¹⁴ After consulting with colleagues, the Maryland Psychological Association, and Mark Muffoletto, her personal attorney, Jenkins decided she needed to terminate her professional relationship with Ali. In a letter to Ali dated February 20, 2009 (“Initial Termination Letter”), Jenkins wrote: As a result of recent threats and innuendos of litigation from you and your father, I must terminate my therapy work with you.

Continuing to work with you in this manner would constitute a violation of ethical responsibility in my treatment work with you. Thus, I will work with you to transition to another appropriate treatment provider over the next 30 days from the date of this letter. In recent contact that you and I have had about ending our treatment work together I told you I would be available to meet with you this Monday February 23, 2009 at 4:30pm. You stated you did not want to attend, but then later changed your mind.

At this time I expect that we will be meeting Monday as planned for a final termination session. Then I will continue to be available to you on an emergency basis for the next 30 days from the date of this letter. Jenkins went on to reference in the letter the other treatment providers Ali was seeing at the time and to suggest other avenues for treatment that Ali could pursue. In closing, Jenkins reiterated that their final meeting would be on February 23, 2009, and that she would “remain available” to Ali “on an emergency basis until March 22, 2009.” On February 23, 2009, Jenkins and Ali met for their last in-person therapy session (“Termination Session”).

Jenkins gave Ali a copy of the Initial Termination Letter (which she previously had mailed to Ali). Ali spent most of the session “tearing the letter] into small pieces.” Between February 24 and 27, 2009, Ali sent Jenkins at least 15 text messages. In some, she threatened legal action against Jenkins. In others, she implored Jenkins to respond or have some sort of contact with her.

One of the messages included a photo attachment showing Ali’s arm with a hypo ²¹⁵ dermic needle injecting something into it. She captioned the photo: “Is this what you want me to do?” 6 On or about March 6, 2009, Jenkins received an email from Ali that stated: “I will put more cards on this table. This fell into my lap.” Attached to the email was a Microsoft Word document entitled “integrity.” When Jenkins read the attachment, she recognized it as an email she (Jenkins) had composed and sent to Muffoletto, on February 17, 2009 (“Muffolet-to Email”). In the Muffoletto Email, Jenkins had told her lawyer of concerns she had about her ongoing treatment relationship with Ali.

The Muffoletto Email that Ali had attached to her March 6, 2009 email to Jenkins had been altered. Using a red font, Ali had inserted her own comments into the text of the Muffoletto Email (“Modified Muffoletto Email”). 7 Jenkins had sent the Muffoletto Email to her lawyer from a Hotmail account she used for her business emails. This was the same account she used to contact her patients and through which her patients contacted her. Around the same time that Jenkins sent the Muffoletto Email she had been experiencing difficulties accessing her Hotmail account.

Specifically, when she tried to log into that account she received error messages that either her user ID or her password was incorrect. As a result, she had to change her password several times. On March 7 and 8, 2009, Ali resumed sending text messages to Jenkins. She sent 26 text messages to Jenkins on those two days.

In the text messages, Ali once again implored Jenkins to respond to her. She also reported that she was suffering increasing mental problems, saying, for example, that she was “[ljosing it.” Ali repeatedly suggested in the text messages that Jenkins was subjecting herself to potential ²¹⁶ liability for malpractice by not responding. One message contained a photo attachment of Ali holding a gun to her head. Also on March 7, 2009, Jenkins wrote Ali a second termination letter (“Final Termination Letter”), which she sent by email and by certified mail.

The letter stated: On February 20, 2009 I notified you that due to continued threats from you and your father, I was forced to terminate my therapy work with you. I informed you that we would meet once more for a face-to-face termination session on February 23, 2009. I also informed you that after that date until March 22, 2009 I would remain available to you in the case of emergency only. However, since February 23, 2009 you have engaged in threatening and harassing behavior toward me on a continuous basis.

As such, you have abused my role of emergency contact person. Based on your threatening and harassing behavior, I can no longer be available to you for emergency contact or otherwise [sic] mental health contact. Effective this date, this will be my final contact with you. I insist that you cease and desist any and all forms of contact with me immediately.

Should you need any clinical intervention or contact, I recommend you utilize the resources I sent to you on February 20, 2009 via certified mail, resources I gave you on February 23, 2009 in our final face-to-face therapy session, as well as those given to you today. ... From this date forward should you or other treatment/emergency personnel need to reach me, this may be done only through the use of a mental health provider. Due to your threatening and harassing behavior, I can no longer serve as an emergency or otherwise [sic] mental health contact for you. Your actions have forced me out of the role of mental health provider to you at any and all levels.

Please be advised that any attempts by you from this date forward to contact me will be considered threatening and harassing. I will no longer respond to emails, letters, text messages, or other communications from you, nor will I take ²¹⁷ phone calls or be listening to any phone messages you may leave. Please know that if you continue this behavior I will be forced to seek judicial and police intervention, including but not limited to a Peace Order and criminal charges for harassment, stalking, and phone misuse. I regret that you forced me into such measures, but I wish you the best and hope that you take advantage of the mental health resources available to you.

Ali received the Final Termination Letter electronically no later than March 8, 2009; that day she emailed Jenkins acknowledging receipt of it. On March 12, 2009, in the District Court for Howard County, Jenkins applied for and obtained a temporary peace order against Ali. On March 16, 2009, Detective Mark Delbusso of the Howard County Police Department met with Jenkins at her home in Sykesville. While they were meeting, Ali called Jenkins’s cell phone.

Detective Delbusso called Ali back and advised her of the temporary peace order. She had not yet been served with it. Detective Delbusso spoke to Ali for over an hour regarding her complaints about Jenkins’s treatment, her ownership of a gun, and other matters. Ali was served with the temporary peace order on March 17, 2009, at 11:15 a.m.

On March 19, 2009, a final peace order hearing was held in the District Court. Ali appeared and consented to the entry of the peace order. A final peace order was issued and was to remain in effect until September 18, 2009. In relevant part, the peace order prohibited Ali from “contacting] (in person, by telephone, in writing, or by any other means), attempting] to contact, or harassing]” Jenkins.

On April 14, 2009, Detective Delbusso and Maryland State Trooper Edward Winkler submitted an application for a search warrant for Ali’s apartment, located in the Windsor area of Baltimore County. The application was filed in the Circuit Court for Carroll County, the county of Jenkins’s residence. The search warrant issued and was executed shortly thereafter. Police recovered from Ali’s home a hard ²¹⁸ copy of the Muffoletto Email and a series of handwritten notes listing Jenkins’s home telephone number, her husband’s name, the last four digits of her social security number, and names of several other patients she was treating.

The police did not recover any guns or other weapons. On July 14, 2009, Ali was charged in the Circuit Court for Baltimore County with 13 counts of illegal access to computers, one count of identity theft, one count of unauthorized possession of a computer access code, one count of false application to purchase a regulated firearm, three counts of failure to comply with a peace order, one count of stalking, and one count of harassment. A jury trial commenced on July 13, 2010. The State called four witnesses: Jenkins, Detective Delbusso, Muffoletto, and Gay Hector, the owner of the gun dealership where Ali had purchased a gun.

Jenkins testified consistent with the above stated facts. Muffoletto testified that Jenkins had sent him an email on February 17, 2009, regarding concerns about her treatment of Ali, and that he had not forwarded that email to Ali or otherwise distributed it to any individual. Detective Delbusso testified about his investigation of whether Ali had been illegally accessing Jenkins’s email accounts. He identified records subpoenaed from the internet service providers through which internet access was made available at Ali’s home, her work, 8 and her father’s home.

The records disclosed the Internet Protocol address (“IP address”) associated with each such location. The detective also identified records subpoenaed from Microsoft Corporation related to three Hotmail accounts: 1) Jenkins’s business email account; 2) a second email account set up under Jenkins’s name, and 3) a personal email account set up by Jenkins. For the first account, the records showed ²¹⁹ that, on 74 occasions, the account had been accessed via an IP address associated with Ali’s home, work, or her family’s home. The accesses occurred between January 29, 2009, and March 14, 2009.

With regard to the second account, the records showed that the account had been registered on March 14, 2009, from an IP address associated with Ali. It had been accessed only by IP addresses associated with Ali over a three-day period between March 14 and March 16, 2009. For the third account, the records showed no access by Ali. Detective Delbusso identified records subpoenaed from America Online regarding an account that Ali setup under Jenkins’s name in March of 2009.

Jenkins had testified that she did not have an email account with America Online. Detective Delbusso also identified phone records subpoenaed from Ali’s and Jenkins’s cell phone service providers. The records showed that Ali had made three phone calls to Jenkins on June 24 and June 25, 2009. The calls were made when the final peace order was in effect.

At the close of its case-in-chief, the State voluntarily dismissed the stalking charge. Ali’s counsel moved for judgment of acquittal on all counts, although his argument focused primarily on the charge of false application to purchase a regulated firearm. The motion was denied. Ali did not testify or call any witnesses on her own behalf.

Defense counsel renewed his motion for judgment of acquittal at the close of all the evidence. As stated above, the jury convicted Ali on all counts. She subsequently moved for a new trial, arguing that the State had failed to prove the elements of the charge of false application to purchase a regulated firearm and that the entire trial had been tainted by the introduction of privileged information regarding her treatment. The motion was denied.

Ali noted a timely appeal. We shall include additional facts in our discussion of the issues. ²²⁰ DISCUSSION I. Sufficiency of Evidence to Support Conviction of False Statement on a Firearm Application Pursuant to Md.Code (2008, 2010 Supp.), section 5-139(a) of the Public Safety Article (“PS”), Ali was charged with “knowingly giv[ing] false information or mak[ing] a material misstatement in a firearm application.” The charge was premised on her answers to two related questions on the federal and state firearm applications. In December 30, 2008, Ali went to the “Just Guns, Inc.” gun store in Harford County and applied to purchase a firearm. She completed two firearm applications.

The federal form, entitled “Firearms Transaction Record Part I — Over-the-Counter” asked at Question 11(f) whether the applicant ever had been “adjudicated mentally defective (which includes a determination by a court, board, commission, or other lawful authority that you are a danger to yourself or to others or are incompetent to manage your own affairs) OR have you ever been committed to a mental institution?” (Emphasis in original.) The State form, entitled “Maryland State Police Application and Affidavit to Purchase a Regulated Firearm,” asked at Question 8 whether the applicant had “ever been adjudicated mentally defective or [] been committed to a mental institution?” Ali answered “No” to both questions. On January 8, 2009, after the dealership completed the necessary background checks, Ali purchased a handgun. At trial, the State introduced evidence that, on May 27, 2008, Ali was taken to Northwest Hospital as a result of a petition for emergency evaluation. She was involuntarily admitted to the psychiatric unit and placed under observation.

The next day, two doctors at the hospital signed physician certifications stating that, after examining Ali, it was their opinion that she needed inpatient care for treatment for major depression and post-traumatic stress disorder. That same day, Ali was transferred to Sheppard Pratt Hospital for ²²¹ observation. While there, Ali signed a Notice of Hearing form acknowledging that she had been advised that she would have a hearing on June 3, 2008, to determine if she should be involuntarily committed to a mental health facility. On May 30, 2008, before any commitment hearing was held, Ali was discharged.

Her discharge papers stated that she was being “[r]elease[d] from observation.” Ali was discharged to her home address. At the close of the State’s case-in-chief, Ali’s counsel moved for a judgment of acquittal on the false information charge on the basis that Ali never had been “committed” to a mental health institution or “adjudicated” mentally defective. He argued that involuntary admission to a hospital or mental health facility for observation is not the equivalent of a commitment and that no “adjudication” had occurred in Ali’s case. The prosecutor responded by arguing that an involuntary admission on an emergency petition qualified as a “commitment” and thus Ali had made a misrepresentation on the application forms she completed when she purchased her firearm.

Finding no Maryland cases on point, the court looked to out-of-state cases and concluded that the trend was to hold that an involuntary hospitalization for mental health observation “was a commitment within the meaning of the federal gun control statute.” Therefore, the trial court denied the motion for judgment of acquittal. As noted, the jury convicted Ali on this count. Ali subsequently moved for a new trial, again arguing that she never had been “committed” to a mental health institution. Her motion was denied.

A little less than six months after the verdict in this case, on July 2, 2010, this Court decided Furda v. State, 193 Md.App. 371 , 997 A.2d 856 (2010). We were asked “whether an involuntary hospital admission under Maryland law, for the purpose of an emergency mental health evaluation, constitutes a ‘commitment’ under federal law, so as to bar the admittee’s right to possess a regulated firearm in Maryland.” Id. at 376 , 997 A.2d 856 . After an evaluation of federal and state law, we were persuaded by ²²² the logic of jurisdictions that have construed “committed” as applying to situations in which, at the very least, the patient has been afforded an evidentiary hearing, held either by a court or a hearing officer; the patient or the defendant has a right to appear and has the right to counsel; and findings are made by the factfinder, based on competent medical evidence. In the absence of such minimal safeguards, the term does not extend to a brief hospitalization for purposes of an emergency mental health evaluation.[ 9 ] Id. at 410-11 , 997 A.2d 856 .

As the State concedes, the Furda decision controls this issue in the instant case. The evidence at trial was that, over a three-day period, Ali was held involuntarily “for purposes of a mental health evaluation” and that during that time she was not afforded an evidentiary hearing, and no factual findings were made as to her condition. Therefore, for the reasons fully explained in Furda , Ali was not “committed” to a mental institution. It follows that her conviction for false application to purchase a regulated firearm must be reversed because the evidence adduced at trial was legally insufficient to sustain it.

II

Admission of Evidence in Violation of the Patient-Psychotherapist Privilege Ali contends the trial court erred on numerous occasions by admitting into evidence privileged communications she had ²²³ with Jenkins. On the basis of privilege, she challenges the admission of Jenkins’s testimony concerning the “boundaries” placed on their therapeutic relationship; about a photograph Ali brought to a therapy session and Ali’s ownership of a gun; and about “safety contracts.” Ali also challenges on the ground of privilege admission of text messages she (Ali) sent to Jenkins between February 24 and March 8, 2009, and of the Muffoletto Email and the Modified Muffoletto Email. 10 The State counters that many of Ali’s claims are unpre-served and that those claims that are preserved lack merit. Specifically, the State argues, for the first time, that Ali waived the patient-psychotherapist privilege by introducing her mental condition as an element of her defense at trial. It also argues that the trial court correctly determined that the testimony and documents at issue were not privileged because they did not concern Ali’s treatment or diagnosis. “While not specifically privileged under the common law, communications between a patient and his or her psychotherapist or psychologist are now statutorily privileged.” Bryant v. State, 393 Md. 196, 204 , 900 A.2d 227 (2006).

The privilege is codified at Md.Code (2006 Repl.Vol., 2010 Supp.), section 9-109 of the Courts and Judicial Proceedings Article (“CJP”), entitled “Communications between patient and psychiatrist or psychologist.” CJP section 9-109(b) generally establishes the privilege: Unless otherwise provided, in all judicial, legislative, or administrative proceedings, a patient or the patient’s authorized representative has a privilege to refuse to disclose, and to prevent a witness from disclosing: (1) Communications relating to diagnosis or treatment of the patient; or ²²⁴ (2) Any information that by its nature would show the existence of a medical record of the diagnosis or treatment. Subsection (d) enumerates circumstances in which the privilege does not apply: There is no privilege if: (1) A disclosure is necessary for the purposes of placing the patient in a facility for mental illness; (2) A judge finds that the patient, after being informed there will be no privilege, makes communications in the course of an examination ordered by the court and the issue at trial involves his mental or emotional disorder; (3) In a civil or criminal proceeding: (i) The patient introduces his mental condition as an element of his claim or defense; or (ii) After the patient’s death, his mental condition is introduced by any party claiming or defending through or as a beneficiary of the patient; (4) The patient, an authorized representative of the patient, or the personal representative of the patient makes a claim against the psychiatrist or licensed psychologist for malpractice; (5) Related to civil or criminal proceedings under defective delinquency proceedings; or (6) The patient expressly consents to waive the privilege, or in the case of death or disability, his personal or authorized representative waives the privilege for purpose of making claim or bringing suit on a policy of insurance on life, health, or physical condition. (Emphasis added.) “The privilege [in CJP section 9-109] belongs to the patient to assert, not to the psychiatrist [or psychologist].” Eiler v. State, 63 Md.App. 439 , 445 n. 6, 492 A.2d 1320 (1985). In Laznovsky v. Laznovsky, 357 Md. 586 , 613 n. 13, 745 A.2d 1054 (2000), the Court of Appeals quoted with approval a decision of the United States Court of Appeals for the District of Columbia discussing the unique nature of the relationship between a patient and a mental healthcare provider: ²²⁵ “In regard to mental patients, the policy behind [a privilege] statute is particularly clear and strong.

Many physical ailments might be treated with some degree of effectiveness by a doctor whom the patient did not trust, but a psychiatrist must have his patient’s confidence or he cannot help him. ‘The psychiatric patient confides more utterly than anyone else in the world. He exposes to the therapist not only what his words directly express; he lays bare his entire self, his dreams, his fantasies, his sins, and his shame. Most patients who undergo psychotherapy know that this is what will be expected of them, and that they cannot get help except on that condition. * * * It would be too much to expect them to do so if they knew that all they say — and all that the psychiatrist learns from what they say — may be revealed to the whole world from a witness stand.’ ” (Quoting Taylor v. United States, 222 F.2d 398 , 95 U.S.App.D.C. 373 , 376 (D.C.Cir.1955) (in turn quoting Guttmacher and Weihofen, Psychiatry and The Law (1952), p. 272)). This Court has further explained: The purpose of the privilege is “ ‘to aid in the effective treatment of the [patient] by encouraging the patient to disclose information fully and freely without fear of public disclosure.’ ” Goldsmith v. State, 337 Md. 112, 150 , 651 A.2d 866, 885 (1995) (dissenting opinion) (citation omitted).

The privilege created by § 9-109 applies to records based on communications between patients and their psychiatrists or psychologists relating to diagnosis or treatment, as well as to verbal communications. See id. at 123, 651 A.2d 866 . In re Alethea W., 130 Md.App. 635, 641 , 747 A.2d 736 (2000). A. Waiver of Privilege At the outset of Jenkins’s testimony, she was asked to “describe [her] relationship with [Ali.]” Jenkins expressed reservations about answering the question, citing concerns about the “HIPPA [sic] privilege.” 11 The court asked the parties to approach.

Defense counsel stated, “No privileges ²²⁶ are being waived.” At the conclusion of the bench conference, the court allowed the prosecutor to question Jenkins briefly on the issue of privilege and Jenkins agreed that Ali had not waived any privilege. The prosecutor said she would frame her questions generally and advised Jenkins to refuse to answer if she believed doing so would infringe upon Ali’s privilege. At no time before or during trial did the prosecutor argue that Ali had waived her privilege by “introducing her] mental condition as an element of h[er] claim or defense.” See CJP section 9-109(d)(3). The State advances this argument for the first time on appeal, stating that “defense counsel used opening statement to presage the defense that Ali did not act with the requisite criminal intent because of her mental condition.” Specifically, the State asserts that “Ali affirmatively introduced her mental condition — her alleged desperation — to explain her admitted conduct as not willful and therefore not criminal.” Ali responds that this argument may not be raised for the first time on appeal.

And, moreover, it was the State that introduced her mental state as an element of the prosecution. In that situation, she was entitled to rebut the State’s assertions without waiving her privilege by virtue of CJP section 9-109(d)(3). In In re Matthew R., 113 Md.App. 701 , 688 A.2d 955 (1997), this Court expressly declined to consider a waiver argument under CJP section 9-109(d)(3) when the privilege had been “plainly asserted” below, the other party had not argued ²²⁷ waiver, and the court had made no findings on the issue of waiver. 113 Md.App. at 706 , 688 A.2d 955 . In that case, the party asserting the privilege was a mother in a CINA proceeding.

The court ordered, sua sponte, that the mother disclose certain mental health records. She refused and appealed the court’s order to that effect. The Montgomery County Department of Social Services (“Department”) argued for the first time on appeal that the mother had waived her privilege by introducing into evidence a letter from a mental health practitioner who recently had evaluated her in an unrelated custody matter in California. The letter stated that the mother suffered from bipolar disorder, but was compliant with her medication and was not currently symptomatic.

According to the Department, by moving the letter into evidence to show that she was “mentally fit for custody,” the mother had introduced her mental condition as an element of her claim; therefore, the juvenile court properly ordered her to disclose all of her psychiatric records. Id. at 714 , 688 A.2d 955 . We held that the Department had forfeited its waiver argument by failing to raise it below. We emphasized that the burden was on the party asserting waiver to prove that the privilege had been waived and that, once waiver has been asserted, it is incumbent upon the trial court to conduct an inquiry and make findings on the issue.

We further concluded that, even if the waiver argument had not been forfeited, it nonetheless lacked merit because the Department, not the mother, had introduced the mother’s mental condition as an element of its claim that she was unfit to maintain custody of her son. In that circumstance, the mother was permitted to rebut the claim without waiving her privilege by operation of CJP section 9-109(d)(3). Similarly, in McCormack v. Board of Education, 158 Md. App. 292 , 857 A.2d 159 (2004), we declined to consider a waiver argument under CJP section 9 — 109(d)(3) that was raised for the first time on appeal. In that case, the parents of a minor child were barred from introducing evidence of his psychological treatment records during a negligence case in which they ²²⁸ sought damages for injuries sustained by the child in a school bus accident and reimbursement of medical expenses paid by them.

During trial in the matter, the court ruled that there was a conflict of interest between the parents and the child and for that reason the parents either would need to consent to a postponement to allow a guardian to be appointed for the child to determine whether the privilege should be waived or be barred from introducing the records. The parents refused to consent to a postponement and the records were excluded. Although we ultimately concluded that the court’s ruling was in error, we declined to consider the parents’ argument that their child had waived his privilege by introducing his mental condition as an element of his claim, as the argument had not been raised below. In the instant case, the State acknowledges that it did not raise below the waiver argument it presses on appeal.

It maintains, nonetheless, that Ali would not be prejudiced if this Court were to affirm on this ground because Ali first challenged the admission of the allegedly privileged communications mid-trial, after she had introduced her mental condition as an element of her defense through remarks by her lawyer in opening statement. Thus, if the State had argued waiver below upon first learning that Ali intended to object to evidence on the basis of privilege, that argument would have been made after Ali already had waived the privilege. During the prosecutor’s opening statement, she urged the jurors not to judge Ali based upon how she appeared sitting in the courtroom because that was not the “real Sahar Ali.” The prosecutor showed the jurors the photograph of Ali holding a gun to her head that Ali had texted to Jenkins, saying the photograph showed “the real Sahar Ali.” Defense counsel’s opening statement focused largely on the charge of false application to purchase a firearm. He described the prosecution case as an “upside down” “pyramid,” where the base was a “huge he.” The “lie,” according to defense counsel, was that Ah had made a misrepresentation on her firearm apphcation.

Defense counsel then asked the jurors to remember that Ah never ²²⁹ point[ed] a gun at another person, not at Dr. Jenkins, not at anybody. At most this is goofiness. She is pointing the gun at her own head [referring to the photograph]. The reason she’s doing that is she’s crying out for help.

What is the help that she’s crying out for? She doesn’t want Dr. Jenkins to terminate the doctor-patient relationship. A doctor shouldn’t do that. A doctor shouldn’t abruptly terminate a relationship.

A doctor should make sure that, if anything, the patient is transferred to another doctor first and then terminate the relationship. There should be an easy segue. It shouldn’t be abrupt. And there was a letter of termination and Sahar Ali was desperate.

She sent the picture of the gun to her head. Is this how you want to help me? By terminating the relationship? Please don’t be inflamed.

The picture is not a threat to others. The picture was a cry for help. We disagree with the State that these remarks by defense counsel in opening statement introduced Ali’s mental condition as an element of her defense. The State’s overarching theory of the case, communicated in opening statement, was that Ali was a disturbed individual who manipulated, harassed, and invaded the privacy of her therapist.

Defense counsel, in response to these assertions and the prosecutor’s display of the photograph of Ali with a gun to her head, emphasized that at most Ali was making a desperate attempt to resume contact with Jenkins after Jenkins had terminated the therapeutic relationship. In essence, defense counsel was asking the jury to understand why Ali would have been motivated to send what was, by all accounts, a disturbing photograph. She was not acting maliciously, according to defense counsel; rather, she was seeking help from her therapist. This was not the equivalent of arguing that Ali could not form the requisite intent to commit the crimes charged because of a mental defect or otherwise introducing her mental condition as an element of her defense. 12 ²³⁰ In any event, because the State failed to raise the waiver of privilege argument below, Ali was deprived of the opportunity to rebut the State’s assertion of waiver and the court was deprived of an opportunity to make findings on this issue.

Thus, even if we were persuaded that Ali had introduced her mental state as an element of her defense, we nonetheless would decline to consider this argument on appeal. B. Boundaries of Treatment Testimony Ali asserts that Jenkins was permitted, improperly, to testify “over objection[ ] to the specifics of boundaries that Dr. Jenkins set up with Ali.” The State responds that this argument is not preserved for review. We agree. Early in Jenkins’s direct examination, she was asked, “What were the boundaries that were set up between yourself and [Ali]?” Defense counsel objected, stating that he believed Jenkins’s answer would “violate the HIPPA [sic] privilege.” 13 A bench conference followed: ²³¹ THE COURT: How is that not— [PROSECUTOR]: It’s asking — I can ask specifically the question what the boundaries are.

I can ask specifically if we are going to meet once a week we are going to have boundaries and what they are, not what they are meeting about. [DEFENSE COUNSEL]: I think it’s setting a pattern as opposed to any substantive question. THE COURT: I’ll allow the question in that area. The prosecutor then rephrased her question, without objection, to inquire as to whéther Jenkins set up boundaries on “how often [Jenkins] and [Ali] would meet for sessions?” She also asked Jenkins, again without objection, what rules were established about telephone contact outside of therapeutic sessions. Jenkins responded, as discussed above, that she and Ali were to meet once per week and that Ali was permitted two 15-minute telephone calls per week outside of these sessions.

The State maintains, and we agree, that defense counsel’s comment at the bench conference that the prosecutor’s proposed question was “setting a pattern as opposed to any substantive question” was an implicit withdrawal of his prior objection. Defense counsel’s failure to object to the rephrased questions after the bench conference confirms that that is what happened. Although defense counsel objected to the prosecutor’s inquiring generally about boundaries on Ali’s and Jenkins’s therapeutic relationship, he did not object to the targeted inquiry into the timing of sessions and telephone calls each week. The question whether this evidence should not have been excluded pursuant to CJP section 9-109 is not preserved for review.

C. Gv,n Testimony Ali next suggests that it was error for the trial court to allow Jenkins to testify about conversations she and Ali had concerning Ali’s ownership of a gun. Jenkins testified that Ali brought a picture of a handgun and bullets to their third face- ²³² to-face session after therapy resumed in December of 2008. She further testified about what Ali told her during that session about why she owned the gun and when she had obtained it. Finally, Jenkins testified about follow-up discussions she had with Ali concerning the gun.

All of this testimony came in without objection. Accordingly, this argument is not preserved for review. D. Safety Contract Ali argues that Jenkins should not have been permitted to testify about a “safety contract” that they entered into as part of the therapeutic relationship. Initially, the prosecutor asked Jenkins about the nature of the safety contract she entered into with Ali.

Defense counsel objected and the trial court sustained the objection, directing the prosecutor to ask only general questions about safety contracts. The prosecutor then asked Jenkins, “Can you tell the Court generally what a safety contract is?” Jenkins responded: Safety contract is working with any kind of outpatient therapy that if they become a danger to themselves or others, any form of self-harm or suicidal thoughts, that we make a plan of safety that is particular to each client to make sure they don’t act on self-harm or suicidal thoughts. Ali’s objection to a particularized inquiry into the safety contract between Ali and Jenkins was sustained. She did not object to the prosecutor’s rephrased, generalized inquiry and she does not explain how Jenkins’s testimony about the general nature of a safety contract would be protected under CJP section 9-109.

Accordingly, this argument was not preserved for review and plainly lacks merit. E. Text Messages Ali next contends the trial court erred in admitting into evidence a series of text messages she sent to Jenkins between February 24, 2009, and March 8, 2009. These text messages all were sent after Ali had received the Initial ²³³ Termination Letter but before she had received the Final Termination Letter. 14 In the course of Jenkins’s direct examination, the prosecutor made known that she intended to introduce into evidence text messages sent by Ali to Jenkins both before and after the date of the Initial Termination Letter (February 20, 2009). After hearing some argument at the bench, the trial court excused the jury and conducted a suppression hearing.

Jenkins testified that she considered the text messages to be a “manipulation” and an attempt to “force a response back from [her] outside of the boundaries.” She explained that even those messages sent prior to the Initial Termination Letter fell outside the permissible communications boundaries she and Ali had agreed upon. Jenkins was unsure whether she might have had any contact with Ali, aside from their Termination Session, between the dates of the Initial Termination Letter and the Final Termination Letter. She acknowledged that it was possible that she called or sent a text message to Ali in that time frame in response to one or more of the text messages. 15 She further acknowledged that, although Ali’s communications were outside the boundaries of permitted communications, Ali nevertheless could have thought she was making a request for treatment. In response to questions from the court, Jenkins described “the parameters ... for emergency contact” that she established during the Termination Session on February 23, 2009: “[Ali] could have contact if there would be an extreme case of self-harm, suicide, attempted suicide.

She also had other options, to call 911, go to the emergency room, contact her other treatment providers.” The trial court ruled as follows: ²³⁴ On this issue and the evidence before me, let me just be clear on where I am. Just because a communication is somewhat outside the boundaries that are established by a [psychologist] at the outset doesn’t mean that the context of the communication is unprivileged. I think the doctor was saying the boundaries you work on in a relationship, you might view it with greater latitude, that the communications by the patient are believed to be privileged even though the doctor believes they are outside the purviews of appropriate communications that were set. The privilege itself is broadly based.

It belongs to the patient and it applies to communications made or relating to diagnosis or treatment of the patient and it belongs to the patient. I think the question exists when that confidentiality of the relationship exists in the nature of communications that become threatening or criminal in nature. Quite frankly, I haven’t even found any law in Maryland that talks about that when privilege is waived. A question also exists when communications are made by a medium that is not itself necessarily privileged, when you text, whether you do it in some way that it could be accessed by others, whether you have in effect waived your privileges.

Again, I found no guidance on that issue. What is clear in the context of this case is on [February] 20th the doctor told the patient that she needed to terminate their relationship and she left a grace period of 30 days where she could continue to be contacted if necessary in an emergency. I have allowed in — I have kept out the communications that pre-date the 20th because frankly, while there is an argument there, it’s not clear from the context that the patient didn’t believe them to be somehow within the physician-patient relationship. From the communications that started after the 20th, and in number on the Bates numbers on these that start with Number 18, which is a communication on [February] 23rd, there is a series of communications on the 23rd and early on the 24th where Miss Ali is basically saying, I’m having an ²³⁵ emergency.

There is little other than that fact that there is a continuation of efforts to communicate beyond the boundaries of what is established. There is little in terms of content [t]hat is particularly relevant. It’s just a number of communications and continuing forms of communication outside the boundaries. But there is a point in time on [February] 24th, and from my review of this it starts with Bates Number 33 and continues from that point forward where the tone of communications are not even arguably related to treatment.

The tone clearly is — this- one starting with Number 41 of 68 says, [“]this is professional negligence again if you are ignoring me. Getting frustrated and worse on top you are telling me I won’t make it. [”] The nature of these, the timing of them have them coming on the heels of being told that the relationship is terminated and to only communicate in the event of an emergency and to seek help from other physicians. And given the doctor’s testimony that they had a final meeting in her office, she said we’re done, you need to move on, in my judgment from Bates Number 33 through the balance of State’s Exhibit 5 there is no privilege that attaches to any of those text messages. The nature of the content isn’t treatment related.

The timing does not show it to be part of a professional relationship. So those are admissible. A total of 41 text messages were admitted. As already mentioned, two had photographs attached to them.

The content of most of the text messages can be placed into three general categories: 1) suggestions that Jenkins was committing professional negligence by terminating the therapeutic relationship and cutting off contact with Ali; 2) requests that Jenkins respond to her; and 3) statements that Ali’s mental condition was deteriorating as a result of the cessation of contact with Jenkins and implicit or explicit threats of self-harm. There also are several text messages that defy categorization. ²³⁶ The court concluded that none of the text messages were privileged, opining that “[t]he nature of the content isn’t treatment related [and t]he timing does not show it to be part of a professional relationship.” We are constrained to disagree. The timing of the messages was an important factor in the court’s analysis. The trial court excluded text messages preceding the sending of the Initial Termination Letter.

Thus, regardless of the nature of the content, the court viewed text messages sent to Jenkins during the ongoing psychotherapist-patient relationship to be privileged communications. The court also excluded numerous text messages sent on February 23 and 24, 2009, after Jenkins sent the Initial Termination Letter. In these text messages, Ali stated that she was having an “emergency”; as the Initial Termination Letter provided that there would be a 30-day grace period, until March 22, 2009, for emergencies, the court decided that these text messages fell within the exception to the termination of contact. Beyond that point in time, the court admitted all of the text messages sent by Ali to Jenkins.

As the court recognized, however, a psychotherapist-patient relationship may have shifting boundaries. A troubled patient may not have the same understanding of a termination letter as a therapist, especially when, as here, the therapist allows the patient to maintain contact “on an emergency basis” for an additional period of time. Jenkins herself testified that Ali was permitted to contact her if she was contemplating self-harm. From Ali’s perspective, it is quite possible that she considered herself to be in a state of emergency when she was faced with the prospect