Anderson v. State

KRAUSER, Judge. Appellant, Wendell Anderson, a teacher at Kenwood High School, was accused of having sexual intercourse with a ninth grade Kenwood student. He was subsequently charged with child abuse and five related offenses. Following a bench trial in the Circuit Court for Baltimore County, he was convicted of child abuse and all but one of the related offenses. 1 He was thereafter sentenced to a term of three years’ imprisonment for child abuse and a term of one year imprisonment for third degree sex offense. 2 After suspending all but one year of the child abuse sentence, the court ordered that the two sentences were to be served concurrently.

The principal issue presented by this appeal is whether consensual sexual intercourse between a teacher and a fourteen-year-old student that occurs after school hours and off school premises can constitute “child abuse” under Maryland law. Because we find that a parent impliedly consents to a teacher taking all reasonable measures to assure the safe return of his or her child from school, including personally driving that child home; because appellant assumed that responsibility when he agreed to drive the child home; because the events leading up to this unfortunate occurrence were set in motion on school property; and because, at the time of the offense, there had been no temporal break in the teacher and student relationship that existed between appellant and the victim, we shall affirm appellant’s conviction for child abuse. For the reasons that follow, the resolution of that question largely renders appellant’s remaining issues concerning his motion to sever and the admission of a taped ⁵⁰² conversation between appellant and the student moot. Consequently, we shall also affirm his conviction for third degree sex offense.

Because appellant is challenging the evidentiary basis of the circuit court’s rulings at both the motions hearing and appellant’s trial, we shall briefly review the evidence presented, first, at the motions hearing and then at trial. Motions Hearing Before trial, appellant moved to suppress the recording of a telephone conversation between the victim (“Cindy”) and appellant, which had been recorded by Detective Joseph Dono-hue, the officer investigating Cindy’s accusations. That telephone conversation had been intercepted pursuant to the Maryland Wiretapping and Electronic Surveillance Act (“the Act”), Md.Code Ann. (1998 RepLVol., 2000 Cum.Supp.), §§ 10-401 through 10-414 of the Courts and Judicial Proceedings Article, which permits law enforcement officers investigating an allegation of child abuse to intercept telephone conversations to obtain evidence of that offense so long as one party to the conversations consents to the interception. See Cts. & Jud.

Proc. § 10-402(c)(2). At the motions hearing, Detective Donohue testified that when he was a member of the Family Crimes Unit of the Baltimore County Police Department, he was assigned to investigate a claim by a fourteen-year-old female student that appellant had had sexual intercourse with her. During that investigation, Detective Donohue interviewed the student, Cindy. Cindy told Detective Donohue that, while she was staying after school to assist her math teacher, appellant had offered her a ride home.

She accepted that offer and got into his car. On the way home, appellant asked her if she would like to play pool at his house. She agreed. At appellant’s house, he and Cindy played pool and then went into the living room. “One thing led to another,” according to Cindy, and their kissing “eventually progressed into sexual intercourse.” ⁵⁰³ Detective Donohue also interviewed Cindy’s math teacher, Nina Riggs.

During that interview, Ms. Riggs informed the detective that she had had a telephone conversation with Cindy in which Cindy stated that she had sex with appellant. Believing that he was investigating a case of child abuse and related sex offenses, Detective Donohue sought and obtained consent from Cindy and her mother, under the Maryland Wiretap and Electronic Surveillance Act, to record a telephone conversation between Cindy and appellant. During the recorded telephone conversation, appellant did not deny that he had sexual intercourse with Cindy, a fact which the circuit court found particularly significant, and reminded Cindy “you told me you have been saying all weekend you would protect me, this is a test to that promise.” Appellant was subsequently charged with child abuse and a number of related sex offenses. Holding that Detective Donohue had a good faith belief that he was investigating a case of child abuse, the court denied the motion to suppress.

Appellant then moved to sever his trial on the child abuse charge from the other charges, claiming that the introduction of the recorded telephone conversation on the child abuse charge would prejudice his trial on the other counts of his indictment. That motion was also denied. Trial At trial, the fourteen-year-old victim testified that she had come to know appellant through her math teacher, Nina Riggs. She explained that “once or twice a week,” she would stay after school to help Ms. Riggs “tutor other students” or to receive tutoring herself.

Appellant, she stated, “would come into the room where [she] was staying after school to help out.” Cindy was not a student of appellant’s, nor was she in any clubs or teams that appellant coached, but she “occasionally asked him for ... help with a math situation if [she] couldn’t get a hold of Ms. Riggs.” In addition, appellant had driven her home from school on two or three occasions. On June 9, 2000, the last day of the school year, the school day ended at noon. That day, Cindy “stayed after with Ms. ⁵⁰⁴ Riggs to help her with her room.” While she was walking in the hallway with Ms. Riggs and her daughter, whom Ms. Riggs had brought to school that day, appellant approached and invited them to go to lunch with him. They then left school property with appellant, in his car, and had lunch at a nearby McDonald’s restaurant.

About a half hour later, all four of them returned to school in appellant’s car and Cindy resumed “helping] Ms. Riggs with her room and her daughter.” When appellant asked Cindy if she wanted a ride home, she accepted his offer. 3 Sometime after 2 p.m., appellant and Cindy left the school in appellant’s car. While driving Cindy home, appellant asked her if she wanted to play a game of pool at his house; she replied that she did. Appellant then drove Cindy to his house. At appellant’s home, the two played pool and then went into appellant’s living room.

After rubbing Cindy’s face, appellant began to kiss her. He kissed her awhile and then led her to his bedroom where they had sexual intercourse. After Cindy testified, the State played the recorded telephone conversation between Cindy and appellant. As noted earlier, during that recorded conversation appellant did not deny that he had had sexual intercourse, and reminded Cindy “you told me you ... would protect me, this is a test to that promise.” Appellant, however, maintained his innocence throughout the trial, testifying that he took Cindy to his home not to play pool, but out of concern for her safety.

He stated that when they were about two blocks from her home, she said “I can’t go home.” When appellant asked “why not” she replied, “I can’t tell you. I just can’t go home right now.” She continued, “I just need someone I can talk to right now.” They drove around for “fifteen, thirty minutes.” Appellant explained, “I was trying to find out from her why she didn’t ⁵⁰⁵ feel she could go home. I was concerned that the abuse that was at home with her mother and the problems there were still a problem.” He insisted, “I didn’t want to deliver her to an unsafe situation.” While “circling her neighborhood,” appellant stated that he realized that “[i]t was very hot outside.” He told Cindy that he needed “to go home and check on [his] dog.” Appellant drove to his house, “let [Cindy] into the house,” and “went to the backyard to check on the dog.” After checking on his dog, appellant joined Cindy inside. Inside the house, Cindy said “she couldn’t go home yet.” When appellant asked her when she could, she responded, “sometime between 5:00 and 6:00.” Realizing that they “had about an hour to kill,” they decided to play pool.

After playing pool, the two went to appellant’s living room. Sitting on the living room sofa together, Cindy told appellant how much she appreciated his spending time with her, listening to her, and taking care of her. She then leaned over, according to appellant, and kissed him. After that kiss, appellant claimed, he drove her home.

He further testified that he did not have sexual intercourse with Cindy on that day, or on any other. Appellant’s counsel then replayed the recorded conversation between appellant and Cindy, stopping periodically to request an explanation from appellant as to the meaning or context of the preceding recorded comments. As the court apparently rejected his explanations in rendering its verdict, we need not recount them now. Cindy’s mother testified that she entrusted Kenwood High School with her daughter on school days.

She further testified that when her daughter “stayed after school to help a teacher, her daughter would call her [and] either she or her sister’s boyfriend would pick her up.” She also stated that she was unaware that appellant had previously driven her daughter home from school, and, on crossexamination, agreed that she had not asked appellant to be responsible for the supervision of her daughter on that day. ⁵⁰⁶ Cindy’s math teacher, Ms. Riggs, testified that Cindy would come to her classroom after school “on a regular basis ... for either tutoring or to talk” or just to “socialize.” She further stated that on June 9, 2000, the last day of the school year, Cindy stayed after school “to help me get my room closed up, to help me clean up my room and get things put away for the summer.” The principal of Cindy’s high school, Ellen Goldian, testified about the responsibilities of the teachers at Kenwood High School. Specifically, she stated that teachers “are given a set of five classes to teach and they are expected to do hall duty, supervision hall duty between changes of classes. They generally get one hour a day and they are given chaperon duties after school.” She also stated that the “teachers are responsible to assure the safety of the students,” regardless of whether they are on hall duty or whether a student is a member of their class. Discussion I. Appellant contends that the evidence adduced at trial was not sufficient to support his conviction for child abuse under Article 27, § 35C of the Maryland Code Annotated. 4 That statute prohibits child abuse, sexual or physical, by “[a] parent or other person who has permanent or temporary care or custody or responsibility for the supervision of a child or a household or family member....” See Md.Code Ann. (1957, 1996 Repl Vol., 2000 Cum.Supp.), Art. 27, § 35C(b)(1).

In other words, to be subject to § 35C, one must be either (1) the parent of a child, (2) a household or family member of a child, (3) a person who has permanent or temporary care or custody of a child, or (4) a person who has responsibility for the supervision of a child. It is the last class of individuals— persons with responsibility for the supervision of a child— ⁵⁰⁷ which provided the basis for appellant’s conviction for child abuse. Consequently, appellant contends that the evidence did not establish that he was a person with “responsibility for the supervision” of Cindy at the time he and Cindy had sexual relations. He therefore claims that his conviction for child abuse cannot stand.

We disagree. To understand what “responsibility for the supervision of a child” is, we begin by stating what it is not. It is not the assumption of the “permanent or temporary care or custody” of a child. That, as the Court of Appeals indicated in Bowers v. State, 283 Md. 115 , 389 A.2d 341 (1978), equates to “in loco parentis ” status.

And that status “ ‘arises only when one is willing to assume all the obligations and to receive all the benefits associated with one standing as a natural parent to a child.’ ” See Pope v. State, 284 Md. 309, 323 , 396 A.2d 1054 (1979) (quoting Fuller v. Fuller, 247 A.2d 767 (D.C.1968), appeal denied, 418 F.2d 1189 (1969)). Nor did the legislature intend, as the Court of Appeals pointed out in Pope , that these two phrases be synonymous, as the legislature added by amendment the category of those “responsible for the supervision of a child” several years later. See id. at 322 , 396 A.2d 1054 . In other words, as the Court explained: A person may have the responsibility for the supervision of a minor child in the contemplation of § 35A although not standing in loco parentis to that child. “Responsibility” in its common and generally accepted meaning denotes “accountability,” and “supervision” emphasizes broad authority to oversee with the powers of direction and decision.

Id. at 323, 396 A.2d 1054 . This responsibility, the Court added, may be obtained only upon the mutual consent, expressed or implied, by the one legally charged with the care of the child and by the one assuming the responsibility. In other words, a parent may not impose responsibility for the supervision of his or her minor child on a third person unless that person accepts the responsibility, and a third ⁵⁰⁸ person may not assume such responsibility unless the parent grants it. Id. at 323-24 , 396 A.2d 1054 .

The Court cautioned, however, that a “third person in whom responsibility has been placed is not free to relinquish that responsibility without the knowledge of the parent. For example, a sitter may not simply walk away in the absence of the parents and leave the children to their own devices.” See id. at 324 , 396 A.2d 1054 . In the instant case, there is no dispute that every teacher of Kenwood High School had responsibility for supervising all of the students during and after school hours, and that they had the implied consent of the parents to do so. Appellant concedes as much in his brief.

There, he states that he had “a responsibility for supervision of [Cindy],” and that he had responsibility for the supervision of all students “by mutual consent, while they are at the school or while involved in a school related activity off the school premises.” The “mutual consent,” appellant agrees, is “implied.” This point was buttressed by the testimony of both Cindy’s mother and the school’s principal. At trial, Cindy’s mother stated that she believed that she had entrusted her daughter to the high school during school days. And the principal of Kenwood High School testified that the teachers “are responsible to assure the safety of the students,” regardless of whether they are on hall duty or whether a student is a member of a teacher’s class. In short, mutual implied consent to supervise Cindy at school existed by virtue of appellant’s status as a teacher at Cindy’s high school.

Appellant, however, contends that the “mutual implied consent which existed due to the Appellant’s position as a teacher ended when he and the child left the school.” In support of that proposition, he asserts that “there was no request by her mother that the Appellant drive the child home or that he be responsible for her during the ride home.” Nor was there, he points out, a “pattern of conduct where the appellant had regularly driven the child home with the knowledge and ⁵⁰⁹ consent of her parent.” He therefore concludes that, as there was no mutual consent that he drive Cindy home, he could not have had responsibility for supervising her during that trip. Cindy’s mother may not have known that appellant had assumed the task of driving her home from school, but, from that fact, it does not follow that she did not impliedly consent to his doing so. Indeed, it is absurd to suggest that when a parent entrusts her child to a school that that parent does not impliedly consent to any reasonable assistance that a teacher may provide to assure the child’s return home from school. In other words, it may be reasonably assumed by both parent and teacher that a parent impliedly consents to all reasonable measures taken by a teacher to assure the safe return of the child from school, including personally driving that child home.

Indeed, it is hard to imagine that appellant would have taken on the task in the first place, thereby possibly exposing himself to potential civil or criminal liability, if he did not believe that he had the implied consent of Cindy’s mother to do so. Once a teacher assumes the task of personally transporting a child from school to home with the implied consent of the child’s parent, he or she also assumes the responsibility of supervising that child. Indeed, were we to rule otherwise, there would be nothing to prevent such a teacher from changing his or her mind midway and dropping the child off at any location along the way, without the knowledge or consent of the child’s parent. As the Court of Appeals observed in Pope , once assumed, a “third person ... is not free to relinquish that responsibility without the knowledge of the parent____ and leave the children to them own devices.” See Pope, 284 Md. at 324 , 396 A.2d 1054 .

Finally, there was no temporal break in the teacher and student relationship that existed between appellant and the child. Such a break, depending on its length and nature, can interrupt the implied consent of the parent and dispel the teacher’s duty to supervise. Had appellant and Cindy met, for example, after they had parted, at a location unconnected with ⁵¹⁰ Kenwood High School, we might have reached a different result in this case. But that is not the case here.

Indeed, appellant’s offer to give the child a ride home was made on school premises while the child was still under the supervision of appellant. And the trip home began on school premises, where appellant and Cindy got into his car. From the moment he extended his invitation until the