Barber v. State

Salmon, J. In 2010, Rahymeen Barber, appellant, was found guilty by a jury in the Circuit Court for Wicomico County of sexual abuse of a minor, second-degree rape, second-degree sexual offense, three counts of third-degree sexual offense, and three counts of second-degree assault. The court sentenced appellant to a ⁴⁹⁵ term of 50 years imprisonment. Upon direct appeal of his convictions, a panel of this Court affirmed the judgment of the trial court in an unreported opinion. See Rahymeen J. Barber v. State of Maryland, No. 2238, Sept. Term, 2010 (filed June 13, 2012).

Appellant thereafter filed a petition for post-conviction relief alleging, inter alia, that his trial counsel seriously prejudiced him by failing to investigate the validity of the opinions of the State’s expert witness and failing to present expert testimony to counter the State’s expert witness who opined that the victim’s “normal” genital examination was not inconsistent with the victim having been raped. After the circuit court denied his petition, 1 appellant sought leave to appeal, which we granted. For the reasons that follow, we affirm the judgment of the post-conviction court. h-i BACKGROUND Set forth below is an excerpt from an unreported opinion by the panel of this Court that considered appellant’s direct appeal. This excerpt provides a useful recap of some of the important evidence introduced at appellant’s jury trial: 2 This case concerns the sexual abuse of a minor, G.S. [born June 3, 1998], that occurred between 2003 and 2009, when G.S. ranged in age from five to nine years old.

At the time of trial, G.S. was twelve-years-old and lived on Jackson Street in Salisbury, Maryland. She testified that she knew appellant, her former stepfather, as “Poppy.” ⁴⁹⁶ Appellant lived with G.S. for several years in different locations in the Salisbury area. The parties stipulated as follows: from June 10, 2003, until July 10, 2004, the family lived on Light Street; from July 11, 2004, to January 31, 2007, the family lived on Mitchell Street; and, from February 1, 2007, to April 30, 2009, the family lived on Tilghman Street. G.S.... testified to details of various sexual assaults inflicted upon her by appellant.

On one occasion at the Light Street address, when G.S. was five-years-old, appellant called her into the living room and had her remove her pants and underwear. Appellant, who was lying on the couch and attired only in a shirt and boxer shorts, placed G.S. on top of him and started moving her around. G.S. testified that she felt appellant’s private part on her vaginal area and testified that “[w]hen he was putting it in me, it would hurt. It was hurting.” * * * G.S.... recounted another incident, this time when appellant was living with the family on Mitchell Street.

She testified that appellant asked her to lie down with him in bed, and then “he took my underwears [sic] off and everything and put his private part in my private part and did the same thing over again.” She clarified that appellant’s private part was his penis and her private part was her vagina. G.S. also testified that she felt something wet and noticed that it was white. G.S.’s mother worked late at night and was not at home at the time. After the family moved to Tilghman Street, another incident occurred when appellant picked G.S. up while they were in the kitchen and “was scooting me down by his private.” Both were wearing clothes at the time, but G.S. testified that she “felt his private, like kind of like scoot— like sticking up.” * * ⅜ Dr. Jennifer Wehberg, accepted as an expert in pediatric medicine with an emphasis on child sexual abuse, examined ⁴⁹⁷ G.S. on July 2, 2009.

At that examination, G.S. only described the initial incident that occurred on Light Street. G.S. had a normal physical exam, including her vaginal and rectal exam. Because the vaginal area may heal rapidly, Dr. Wehberg testified that “a normal physical exam can be consistent with her disclosure.” [[Image here]] Heather Sullivan, a social worker assigned to the Wicomi-co County Child Advocacy Center, testified that she first interviewed G.S. on May 19, 2009. G.S. described only the first incident of alleged sexual abuse that occurred when the family lived on Light Street.

G.S. was re-interviewed on July 10 2009, and gave more details about this same, singular incident. Sullivan then testified that she interviewed G.S. a third time on January 28, 2010. At this time, G.S. informed Sullivan that there had been more than just the one incident on Light Street. G.S. described the incident on Mitchell Street when appellant had G.S. lie on top of him.

G.S. also indicated that this incident included appellant instructing her to perform oral sex on him. G.S. also described another incident at the Mitchell Street address, and this one involved penetration and ejaculation. G.S. further informed Sullivan about a fourth incident at the Tilghman Street address when appellant had her he on top of him on the couch and “again moved her up and down, privates touching privates, genitals touching genitals.” A fifth incident also occurred at Tilghman Street, when appellant pulled G.S. towards him and their genitals touched through their clothing. Tahesha Barber, G.S.’s mother, was married to appellant from 2004 to August 2010.

G.S. first informed her mother about one incident of sexual abuse in May 2009, and Barber reported it to the Child Advocacy Center. Agreeing that G.S. disclosed information to her on two occasions, Barber testified that she was confused and “I didn’t want to believe it the first time she told me, you know.” After this initial interview with the Child Advocacy Center, Barber and her ⁴⁹⁸ other children still had contact -with appellant. G.S. would be present on some occasions when appellant visited Barber and the other children. Barber also testified that G.S. was interviewed again at the Child Advocacy Center in January 2010, after making a second disclosure. i\i * # Appellant testified on his own behalf and denied that any of the incidents occurred.

Appellant denied having intercourse, oral sex or any sexual relations with G.S. On cross-examination, appellant agreed he was the father-figure in the household, that he disciplined the children, and that the children loved him. Rahymeen J. Barber v. State of Maryland, No. 2238, Sept. Term, 2010, slip op. at 1-12. Concerning what G.S. said in regard to the force used when the second-degree rape occurred, the following exchange between appellant’s trial counsel and G.S. is relevant: Q: So when you say, my private part, you mean your vagina, is that right? A: Yes. * * * Q: You indicated in response when telling that story that Mr. Barber put his penis in your vagina on that occasion, right?

A: Yes. Q: You didn’t tell that to Miss Heather [Sullivan] did you? A: I told her that he put his private in my private. * * * Q: On both of those occasions, did you tell Miss Heather that Rahymeen put his penis in your vagina? A: Yes. ⅜ ⅜ ⅝ Q: You didn’t tell her anything that happened.

On the two occurrences on Mitchell Street, you indicated that Mr. Barber put his penis in your privates, correct? A: Yes. ⁴⁹⁹ In recounting G.S.’s disclosures, to her, Dr. Wehberg testified that G.S. “stated that her stepdad put his thing into her,” she also responded to the question “G.S. disclosed penetration to you, is that right?” A: Yes, she did. Similarly, Heather Sullivan testified: A: She [G.S.] again reported that it occurred in Mr. Barber’s bedroom. Again, the bottom part of her clothing were removed.

He again laid her on top of him, and his penis was hard. At this point in time, she described that his penis did go inside of her,... She described his penis again as hard as it went inside of her, and that it was nasty. ⅜ * * Q: Did she indicate the force with which the defendant moved? A. I mean, she described it going inside of her and using that force to make that occur, and that it was not comfortable.

II

Additional Trial Testimony ofJennifer Wehberg, M.D., Jennifer Wehberg, M.D.,a board certified pediatrician and a CHAMP (Child Abuse Medical Provider) physician, was called as an expert witness for the State during appellant’s 2010 jury trial. She examined G.S. more than two years after the last incident of alleged rape. Dr. Wehberg testified that she conducted a physical examination of G.S.’s vagina and rectum and that the results were “normal.” She explained that a “normal finding means that she [G.S.] did not have any lacerations, cuts, redness, discharge, scarring, that there was no evidence of acute trauma, which means immediate trauma to the vaginal rectal area, and there was no evidence of scarring.” Dr. Wehberg then opined that the “normal” finding was not inconsistent with G.S.’s disclosure that appellant had penetrat ⁵⁰⁰ ed her vagina with his penis. She explained that “[t]he vaginal area is very vascular and very elastic and can heal very rapidly.

Often within a few days, if you have genital trauma, it can be healed to the point where you can’t recognize it as trauma.” On cross-examination of Dr. Wehberg by appellant’s trial counsel, the following exchange occurred: Q: You examined as part of her genital examination, the presence or absence of a hymen, correct? A: Yes. Q: And you describe her hymen as crescentic? A: Crescentic.

Q: Crescentic. Can you tell me what that means? A: A hymen is a thin membrane of tissue that covers the vaginal opening. When you’re very young, your hymen is what we call, annular.

It’s circular in shape covering the vaginal opening. As you get more into young childhood, it becomes a crescent which is a half-moon shape. It goes over the hymen, and you can see a crescent of a thin membrane. Q: Okay.

A: That hymen as you enter puberty again turns into an an[ ]ular hymen which is round. Q: The genital exam was perfectly normal, correct? A: Yes, it was. Q: There was, according to the report, no scarring, no damage, is that a fair statement?

A: Yes, it is. Q: Your opinion or your diagnostic impression is that it is a normal physical exam, cannot diagnose or exclude abuse? A: Right. Q: Is that another way of saying, I don’t know, maybe, maybe not? ⁵⁰¹ A: That s a way of saying, I can’t tell by her physical exam whether there has been sexual abuse.

Q: Can’t confirm? A: Right. Q: Can’t— A: Can’t confirm it, can’t— Q: Exclude it? A: —deny it, yes.

On re-direct examination of Dr. Wehberg the following colloquy occurred: Q: Are you ... familiar with the research regarding medical findings in the victims of substantiated child sexual abuse? A: Yes, I am. Q: What does the research say regarding a normal genital exam? A: A normal genital exam can be consistent with penetrating sexual abuse.

Q: Is there a percentage of cases in which there are—sex abuse has been confirmed but it remains a normal genital exam? A: It has been shown that you can have a normal vaginal exam with penetrating sexual abuse. I do not know the percentage off my head without the cited article in front of me.

III

POST CONVICTION PROCEEDINGS The only crime of which appellant was convicted that required proof of penetration was second-degree rape. The flagship allegation made in appellant’s petition for post-conviction relief dealt with two criticisms: (1) that defense never consulted with an OBGYN or child sexual abuse specialist; and (2) no defense expert was called to refute the opinion of ⁵⁰² Dr. Wehberg that a normal genital exam can be consistent with penetrating sexual abuse. In Kackley v. State, 63 Md.App. 532 , 493 A.2d 364 (1985) we said: Penetration is a necessary element of the crime of second degree rape, Md. Ann. Code art. 27, § 463(a)(3); Smith v. State, 224 Md. 509 , 168 A.2d 356 (1961); Craig v. State, 214 Md. 546 , 136 A.2d 243 (1957); and “penetration, however slight, will sustain a conviction .., but the proof thereof must sustain a res in re; that is, an actual entrance of the sexual organ of the male within the labia (majora) of the pudendum (the external folds of the vulva) of the female organ, and nothing less will suffice.” Craig v. State, supra, citing 1 Wharton, Criminal Law (12th ed.), § 697. A brief description of the female genital area, referred to in Craig , is in order.

The mons pubis is the fat filled cushion over the anterior surface of the hair triangle. The labia majora consists of two rounded folds of adipose tissue extending downward and backward from the mons pubis. Within the labia majora are two flat, reddish folds of tissue that encase the clitoris; this tissue is clinically known as the labia minora. The pudenda, or the external organs of generation, commonly designated as the vulva, includes all structures visible externally from the pubis to the perineum (the area bounded by the mons in front, the buttocks behind and the thighs laterally).

Williams Obstetrics, 16th Ed., Pritchard-McDonald (1980). Thus, penetration into either the labia minora or the vagina is not required; invasion of the labia majora, however slight, is sufficient to establish penetration. Id. at 536-37. The relevant genital features of a girl, before puberty, are shown on Exhibit A (attached).

To prove penetration, it is not necessary to prove that the hymen was ruptured. Craig, 214 Md. at 549 , 136 A.2d 243 . ⁵⁰³ Testimony of Dr. Theodore Hariton During the post-conviction petition hearing, appellant called Dr. Theodore Hariton, a board-certified OBGYN from Tucson, Arizona. 3 He testified that he had reviewed Dr. Wehberg’s trial testimony, Heather Sullivan’s deposition and trial testimony and G.S.’s trial testimony. On direct-examination he testified, in pertinent part, as follows: Q: And after you reviewed it did you arrive at any conclusions regarding whether the medical evidence was consistent with penetration? A: I did.

Q: And what were those conclusions? A: With reasonable medical certainty there’s no medical evidence that penal [sic] vaginal penetration occurred at that time. Q: Okay, So would it be unusual for a six-year-old[ 4 ] or a very young girl to have no finding after an episode of nonconsensual penal [sic] vaginal penetration? A: Yes, it would.

Q: And what would you expect the history and physical findings to be that would be consistent with vaginal penetration? A: Well, two things. First of all, the history, you should have pain and bleeding. If you go inside a hymen and tear a hymen in a little girl it will bleed and cause pain.

The second thing is it will heal, all of them heal very nicely but it will heal with some physical change in shape that will tell you that something happened in this period of time. ⁵⁰⁴ Q: And are both these findings important? 0 Q: Yes. l Q: And why so? A: Well, the history of bleeding, pain and bleeding is one of the most consistent things in all the literature. > Q: Okay. A: When you go through the findings you have the history of pain and bleeding. Q: And were these present in this case?

A: No, there was no evidence—I’m sorry, there was nothing in this record that I found.[ 5 ] Q: What would be the diameter of a vaginal opening in a girl this age? Q: Hymenal opening in a girl in this age would be six or seven millimeters, like half the size of your little finger. Q: And what’s the average diameter of an erect male penis? A: 35 to 39 millimeters.

A: It’s about an inch and a half? A: About an inch and a half, yeah. Q: Okay. So it's maybe an inch and a half trying to get into a quarter inch roughly?

A:Roughly. Q: Now is the hymen stretchable or would it tear if it were penetrated? S A: It is not stretchable. When you examine a little girl, frequently you’ll have to examine and get a specimen with a Q-tip.

And if you touch the hymen with your Q-tip the kid jumps. It’s very delicate and very thin. í> ⅜ ⅜ ⅜ ⁵⁰⁵ Q: Okay. Now what would a normal six-year-old vaginal area look like? A: Well, the labia majora would be flat, the labia minora is very, very thin.

The whole area is pinkish. It’s a little redder than an adult because the tissue, the vessels are so close to the skin. It’s very thin, two to three cells thick, it’s not stretchable, it’s very easy, it’s not disten-sible because there’s no rigi, it won’t stretch. It’s really vulnerable to any trauma or to infection. * * * Q: So what kind of medical evidence could be found after forceful penal [sic] vaginal penetration of a girl around six years old?

A: What you should see is depending if it’s a complete laceration or not— Q: Could you speak a little bit slower? A: Okay, I’m sorry. It depends on the depth of the penetration, how far it went. It doesn’t fit so therefore it can’t go very far.

But it can tear. If it’s a transection, which means it goes all the way through the hymen down to the vagina, then you’ll see that the hymen is a circle like this, and would be a totally complete circle. If you tear, do a transection, it means you cut all the way through here, this would be the vagina, and when they heal it will still heal like this but it will heal with a section, there won’t be any hymen here at all. And if it’s not totally sometimes you just have a very deep notch right in that area that’s easy to see.

It will all heal so it will be smooth, but it will be a change. Q: So there would be some kind of— A: Physical evidence, yes. Q: There would be some kind of result, some kind of evidence left— A: Yes. Q: —if this happened, okay. ⁵⁰⁶ Is there anything in the reports that you read that suggests that there was actual penal [sic] vaginal penetration?

A: No. Q: And you stated that you reviewed the testimony by Dr. Wehberg? A: I did. Q: Did you find any problems with her testimony? A: I did.

Q: What were they? A: First and most important was she said that the hymenof a little girl is very vascular and elastic. It is not elastic, it’s not stretchable at all, and it’s not vascular. It looks a little pinker than the rest of the tissue because it’s so thin blood, the vessels that are there are closer to the surface, But it’s not stretchable.

A: First and most important was she said that the hymen Q: So she was wrong in that statement? a: She was incorrect in that statement. Q: Now are there other parts of her testimony that concerned you? A: Yes. Q: What were they?

A: She also said that there’s medical literature saying that she’s right, that you can have penal [sic] vaginal penetration in a prepubertal girl without any physical findings. i> Q: And is that incorrect? A: That is incorrect. (Emphasis added.) On cross-examination, Dr. Hariton testified: Q: If there’s injury to the hymen will there always be scarring? A: Again what age? ⁵⁰⁷ Q: Prepubertal.

You can assume that that’s what we’re talking about today, Dr. Hariton. A: There should be scarring, yes. Now, the amount of scarring will be different. Q: Depending on?

A: The health of the girl, the age of the girl, if she has any estrogen, and the amount of damage, the depth of the damage. ¡> Q: So depth? a: Yes. ! Q: So if there is a superficial injury to the hymen will a physician be able to see scarring? A: It may or may not form a notch, a superficial notch. But a penis can’t get in a little—a 39 millimeter penis can’t get into a six millimeter hymen with a superficial injury.

Q: And I will go ahead and inform you penetration is defined in the State of Maryland as entrance into the labia minor. G? A: Okay. i Q: So while I appreciate your definition that it’s, you know, penile penetration into the vagina, that is not what’s legally required in the State of Maryland. <0 A: That’s true, but to a juror I think penetration means penetration. The word penetration means to enter.

It means to enter. Q: It means however slight in the State of Maryland, Dr. Hariton. & A: Okay. < Q: So it does not require piercing, puncture or any injury to the hymen, just so that you’re clear. O’ A: Okay. < Q: If there’s injury to the hymen will there be bleeding? O’ A: I’m sorry? ⁵⁰⁸ Q: If there’s injury to the hymen will there be bleeding?

A: There should be, yes, depending on the amount of injury, obviously. Q: If there is forceful penile penetration into the hymen will there be bleeding? A: Should be. Q: The primary way that physicians diagnose sexual abuse?

A: By the history and by the examination. Q: By patient history[?] A: Patient history and examination. Q: The timing of the examination, is that crucial to determining whether there was penetration? A: If you examine a child at the acute phase of contact you’ll see a different set of findings, just penile contact or touching you’ll have bruising, a little staining, a little bit of this, and it heals very quickly.

But actual penetration by this time it’s healed. There’s a short period of time it takes to heal the small stuff. Q: So things heal very quickly in the hymen or in the vaginal area correct? A: Reasonably quickly.

Again depending on the child and the injury. ⅜ ⅜ ⅜ Q: ... Did you view the photographs Dr. Wehberg took in this case? A: No, I never got the photographs. Q: She testified that there was no evidence of acute trauma and no evidence of scarring.

A: Yes, I saw that. Q: And you’re aware that she [Dr. Wehberg] testified on cross-examination that she could not confirm or deny that abuse had happened in this case? A: That is correct. ⁵⁰⁹ Q: Is that accurate, would that be an accurate statement? sexual contact. A: Without any findings you can’t confirm or deny? ...

I said without any findings you can neither confirm nor deny that there was sexual activity. In this case you can deny penile vaginal penetration but you couldn’t deny Q: And penile vaginal you mean penis through the hymen? A: No. <ri Q: You don’t mean penis through the labia majora or labia minora? A: I do not. [[Image here]] Q: Dr. Hariton, when you testified on direct that to a reasonable degree of medical certainty there was no evidence of penetration based on what you reviewed in this case, you meant penetration to the hymen?

A: I meant physical penetration of the penis into the vagina. would have to— Q: Into the vagina, and to get to the vagina the penis A: Go through the hymen. Q: Go through the hymen. Okay. Just so we’re clear. [[Image here]] Q: ...

If you would, the textbook that you so kindly brought, Evidence of—Evaluation of the Sexually Abused Child, would you turn to page 120, please? ⅝ ⅜ ⅜ And captioned under sexual abuse delayed disclosure. ⅜ $ ⅜ That paragraph discusses findings in chronic, in cases of chronic sexual abuse, is that correct? A: The first edition, this chapter was called sexual abuse chronic changes. This edition she’s changed that to sexual abuse delayed disclosure. So the two books, the ⁵¹⁰ chronic changes, that’s why she says what we term chronic changes in the previous edition.

Q: If you will read for the Court that paragraph. A: What we termed chronic conditions in the previous edition was better described as medical findings associated with healed genital trauma. Since most children delay disclosure, medical professionals are typically asked to evaluate a child long after injuries should have healed. However, as noted previously, where there has been significant trauma associated with vaginal penetration, healed disruptions of the posterior fourchette, vestibular mucosa, hymen and anus may be found.

Q: May be found. A: Yes. t> Q: So a normal genital exam can be consistent with penetrating vaginal abuse, is that correct? A: I’ve never seen that written. It would depend on how much penetration we’re talking about.

We’re talking about the child. The amount of penetration, how the child heals. ¡> Q: Is it is possible, is my question? A: I don’t know, I’ve never seen it, never seen it written. Q: Based on your experience and your review of the literature, it can be consistent?

A: It’s a very hard question because I’ve never seen it, never seen it happen, and the tendency in medicine is to always say never say never. * * * We always say never say never. We learned over the years to do that. How does it relate to this case? I have no idea.

I’m not saying because I don’t know. (Emphasis added.) During the hearing on the post-conviction petition, appellant’s former trial counsel testified, on direct-examination by ⁵¹¹ appellant’s post-conviction counsel, that he did not consult a defense medical expert. He explained: Q: All right. Now, you saw a note [in Dr. Wehberg’s report] that the hymen was normal on this.

A: Yes. Q: That’s on the last page. And then if I can point that to you. And it said at the top of this page, this does not rule out possible abuse.

A: Yes. Q: Do you see that? A: Yes. Q: And do you see where it says under diagnostic impression, normal physical exam, cannot diagnose or exclude abuse?

A: Yes. Q: So the child, in your opinion, or what you read could have been abused or not? A: Correct. I was satisfied with the results. [[Image here]] Q: Was your theory then that the State could not prove beyond a reasonable doubt that she was abused? * * * A: Yes.

Q: Did you review the literature concerning sexual abuse of young girls? A: Prior to Mr. Barber’s case? Q: Correct. A: I don’t recall prior to Mr. Barber’s case.

I have reviewed literature in the past. Q: Did you do any research about diagnosis of whether— what types of medical exams could be consistent or not consistent with abuse? [[Image here]] ⁵¹² A: Yeah. Have I researched? I’ve had other cases where experts have testified and I have read.

Q: Okay. Did you consider in this case consulting with a child sexual abuse specialist expert? A: No, I didn’t. Q: Now the State disclosed their experts to you, do you recall that? * * * A: I remember Dr. Wehberg. * * * Q: Okay.

So you knew what Dr. Wehberg’s opinion was going to be from her report, you knew that in advance, is that right? A: Correct. * * * Q: Okay. Now you have been a trial attorney for is it 20 years, right? A: 17,1 think close to 20, Q: And you’ve seen juries go either way, correct?

A: I have. ⅜ ⅜ * I had a hard time winning these types of cases in front of juries. Q: And yet your theory was to rely solely on the maybe she was abused and maybe she wasn’t, there wasn’t reasonable doubt to prove she was abused? A: With, with all respect you just said two things. Maybe she was and maybe she wasn’t.

I did argue reasonable doubt. I didn’t see any evidence that she was, so that was part and parcel of my argument, yes. On cross-examination by the State, appellant’s trial counsel testified that as a public defender he had represented “thousands” of criminal defendants and that, because he handled all of the child sex abuse cases for the public defender’s office in ⁵¹³ Wicomico County for a period of three to four years, he had handled a “significant” number of such cases. He then testified as follows: Q: Why didn’t you consider consulting with an expert in Mr. Barber’s case?

A: Personally I didn’t think I needed to. Q: Why? A: There were all the elements in place in this case, in my opinion, we should have won. And Dr. Wehberg’s opinion I was generally satisfied with. * * * Q: You said you had a hard time winning these in front of juries.

In your experience what’s the deciding factor for a jury in a case where there’s no physical evidence? A: I would say I don’t think there’s one—personally I don’t believe that there’s one deciding factor. I think if what is in place is a reason for the victim to fabricate or make it up, there’s a lack of physical evidence, there’s an articulate criminal [defendant who can testify, all of those factors are significant. And if you have, as I did in this case, I had all of those factors, I think they all play together.

Q: And the defendant testified in this case? A: If I recall, Yes. * * * Q: Knowing what you know now would you do anything different in this case? * * ⅛ A: Would I do anything different? I, in reviewing the documentation, I would have cross-examined the victim differently. I probably would have been more aggressive.

And I hope that I would have won. Q: Did you treat Mr. Barber’s case different than any other in which you have defended individuals in the last 17 years? ⁵¹⁴ A: No. Mr. Barber’s case was a serious case and actually I liked Mr. Barber very much as an individual. So no, I did not treat it differently than I would treat any other serious case. On redirect-examination by post-conviction counsel, trial counsel testified: Q: [Counsel], when you saw normal exam which doesn’t rule out possible abuse.

A: Yes. Q: You said that you didn’t think you needed an expert— A: That’s correct. Q: —to look at that. A: That’s correct.

Q: And you were satisfied with that opinion? A: Yes.

IV

DISCUSSION As mentioned, appellant contends that his trial counsel was constitutionally ineffective for not investigating and/or countering Dr. Wehberg’s opinion that G.S.’s “normal” genital examination was not inconsistent with sexual abuse. Appellant maintains that expert testimony countering Dr. Wehberg’s opinion would have both helped present a valid defense to the rape charge, and also aid in counsel’s attack of G.S.’s credibility concerning whether any abuse occurred at all. A. Standard of Review and Generally Applicable Legal Principles Regarding Ineffective Assistance of Counsel Claims Both the Sixth Amendment, made applicable to the states through the Due Process Clause of the Fourteenth Amendment, and Article 21 of the Maryland Declaration of Rights guarantee the right to effective assistance of trial counsel. Under Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , ⁵¹⁵ 80 L.Ed.2d 674 (1984), ineffective assistance of counsel requires a two-prong analysis.

See Harris v. State, 303 Md. 685 , 496 A.2d 1074 (1985). To establish ineffective assistance of counsel, it is the petitioner’s burden to demonstrate (1) that, under the “performance prong,” counsel’s performance was deficient, i.e., counsel committed serious attorney error, and (2) that, under the “prejudice prong,” counsel’s deficient performance prejudiced the defense. Oken v. State, 343 Md. 256, 283 , 681 A.2d 30 (1996); Williams v. State, 326 Md. 367, 373 , 605 A.2d 103 (1992). To meet the requirements under the “performance prong” and demonstrate “serious attorney error,” a petitioner must show that the acts or omissions of counsel were the result of unreasonable professional judgment and that counsel’s performance fell below an objective standard of reasonableness considering prevailing professional norms.

Cirincione v. State, 119 Md.App. 471, 484 , 705 A.2d 96 (1998). The “performance component” requires a “show[ing] that counsel’s performance was deficient [, and] ... counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687 , 104 S.Ct. 2052 . Under the “performance prong,” if counsel’s acts constituted reasonable “trial strategy” or “trial tactic,” counsel’s performance cannot be deemed “ineffective.” Oken, 343 Md. at 283 , 681 A.2d 30 ; Schmitt v. State, 140 Md.App. 1 , 779 A.2d 1004 (2001). Thus, we have said: In assessing the performance prong of an ineffective assistance of counsel claim under the Sixth Amendment, a court will indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.

The court must be highly deferential in reviewing counsel’s performance, in order to avoid second-guessing counsel’s assistance. Until proven otherwise, the court presumes that counsel’s representation was professionally competent, and that it derived not from error but from trial strategy. In Strickland , the Court explained: ⁵¹⁶ Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.

In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments. State v. Peterson, 158 Md.App. 558, 583-84 , 857 A.2d 1132 (2004) (citation and quotation omitted) (emphasis added). Under the “prejudice prong,” a petitioner must show a “substantial or significant possibility” that, but for the serious attorney error, the result would have been different. Bowers v. State, 320 Md. 416, 426 , 578 A.2d 734 (1990).

A petitioner, however, “ ‘need