Bayne v. State

CATHELL, Judge. Melvin Bayne, appellant, was convicted by a jury in the Circuit Court for Baltimore City of second degree rape, child abuse, assault, assault with intent to rape, sexual offense in the third degree and sexual offense in the fourth degree. He was sentenced to fifteen years on the child abuse offense with all but ten years suspended, to a concurrent term of ten years on the second degree rape offense, and to a concurrent ten year term on the third degree sexual offense count. The trial court merged the remaining counts.

Appellant presents four questions on appeal: 1. Was the evidence insufficient to establish appellant’s guilt of second degree rape? 2. Did the trial judge err in failing to merge the conviction and sentence for third degree sexual offense into the conviction for second degree rape? 3. Did the trial judge improperly curtail appellant’s cross-examination of the victim? 4.

Did the trial judge err in finding that the statements of the alleged victim were admissible as an excited utterance? The victim, five years old when this incident occurred, lived with her mother and appellant. In July of 1992, she was visiting the home of her uncle and aunt and their child, a male cousin. Her uncle entered the cousin’s bedroom and observed the cousin (his son) on his back on a bed with the victim on top of him, “riding him in a sexual motion.” The uncle accosted the victim, asked her what she was doing and “if anybody showed her [to act that way]?” She fled the room, left the house and met her grandmother, Judy, who was just arriving.

After the uncle and aunt related the uncle’s observations to the grandmother, the grandmother left to take the victim home. When the victim and her grandmother arrived at the victim’s house — where the appellant also resided — the victim ¹⁵³ began to scream and would not go in. Subsequently, the ■victim told the grandmother what had happened; saying that appellant had touched her all over and had hurt her. The victim put her hands between her legs to indicate where she had been touched.

The police were contacted and the victim was taken to the hospital. The victim testified at trial that appellant had rubbed his “private” on her “privates.” The grandmother testified that she had previously observed black and blue marks on the victim’s “behind” and between her legs and had on one occasion observed appellant entering the victim’s bedroom at 3:00 a.m. We shall further address the facts as we discuss the issues. I Sufficiency of the Evidence Second Degree Rape Maryland Annotated Code article 27, section 463(a)(3) (1957 & 1992 RepLVol.) provides: A person is guilty of rape in the second degree if the person engages in vaginal intercourse with another person ... [w]ho is under 14 years of age and the person performing the act is at least four years older than the victim. “Penetration, however slight, is evidence of vaginal intercourse.” Md.Ann.Code, Art. 27, § 461(g) (1957 & 1992 Repl.

Yol.). Appellant contends that since the victim did not expressly testify that penetration occurred, there was insufficient evidence to convict him of second degree rape. We disagree. In addition to those facts we have stated above, a pediatrician, qualified as an expert, testified that a physical examination revealed a stretched hymen which was “consistent with healed penetrating genital sexual injury.” He also testified that there was a “small inferior labial adhesion.” On cross-examination, the following occurred: BY MR.

RUBENSTEIN [Defense Counsel]: ¹⁵⁴ Q Are you saying that the findings are consistent with a sexual injury due to penetration? A Yes. We’re talking about penetration of the Labial plane. So that the outer female genitalia in order for this type of stretching to occur has been penetrated....

Q I understood you to say there was penetration. A Yes, the hymen, unfortunately in this child, has been stretched and remember we talked about penetration of the labial plane. Q ... Now let me ask again.

In [sic] your finding indicate penetration? A My finding indicated genitive penetrating injury and by definition as penetration of the labial plane. It doesn’t mean that the vagina has to be torn. Q But it does indicate that there was physical penetration of some sort?

A Yes. The court then asked the doctor: THE COURT: Q. ... [T]here was penetration? A ... [Y]es. . The standard for our review of the sufficiency of the evidence is “whether after viewing the evidence in the light most favorable to the prosecution any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Bloodsworth v. State, 307 Md. 164, 167 , 512 A.2d 1056 (1986) (citing Jackson v. Virginia, 443 U.S. 307 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979)).

See also McMillian v. State, 325 Md. 272, 289 , 600 A.2d 430 (1992); Wilson v. State, 319 Md. 530, 535 , 573 A.2d 831 (1990); and Moore v. State, 84 Md.App. 165, 176 , 578 A.2d 304 , cert. denied, 321 Md. 385 , 582 A.2d 1256 (1990). This standard applies to all criminal cases, including those resting upon circumstantial evidence. Wiggins v. State, 324 Md. 551, 567 , 597 A.2d 1359 (1991), cert. denied, — U.S. -, 112 S.Ct. 1765 , 118 L.Ed.2d 427 (1992). ¹⁵⁵ This is because, generally, “proof of guilt based in whole or in part on circumstantial evidence is no different from proof of guilt based on direct eyewitness accounts.” Eiland v. State, 92 Md.App. 56, 67 , 607 A.2d 42 (1992), rev’d on other grounds sub nom., Tyler v. State, 330 Md. 261 , 623 A.2d 648 (1993). Weighing the credibility of witnesses and resolving any conflicts in the evidence are tasks proper for the fact finder.

See Binnie v. State, 321 Md. 572, 580 , 583 A.2d 1037 (1991); and McKinney v. State, 82 Md.App. 111, 117 , 570 A.2d 360 , cert. denied, 320 Md. 222 , 577 A.2d 50 (1990). In performing this fact-finding role, the jury has authority to decide which evidence to accept and which to reject. In this regard, it may believe part of a particular witness’s testimony but disbelieve other parts of that witness’s testimony. See Muir v. State, 64 Md.App. 648, 654 , 498 A.2d 666 (1985), aff'd, 308 Md. 208 , 517 A.2d 1105 (1986).

In sum, the evidence available to the jury was (1) the “acting out” with the victim’s cousin; (2) her assertion that appellant had done the same with her; (3) that appellant had used his private to touch her private; and (4) the expert’s testimony of a penetrating injury consistent with penile penetration. That evidence, if believed by the fact finder, as it apparently was, is sufficient to support the verdict that appellant was guilty of second degree rape. II Merger We have examined the transcripts of the testimony. Though there were extensive efforts by the prosecutor to elicit from the complaining witness testimony that appellant had abused the victim on more than one occasion, those efforts were unsuccessful.

After the victim testified on direct that appellant had rubbed his “private” on her “private,” she was asked: Q. ... [D]o you remember whether Butch [appellant] ever touched you in another way that made you feel funny? ¹⁵⁶ A. No, I don’t remember. Q Did any other part of Butch’s body touch your body? A. No. Later, on redirect, she was asked how many times appellant had done “that to you.” She responded, “I don’t know.” 1 In light of the victim’s assertion that appellant touched her with his “private” on at least one occasion and her failure to remember whether there were other occasions, we must, in reviewing this issue, assume that only one assault took place and that it involved the appellant’s penis penetrating the victim’s genitals. We shall resolve the merger issue in that context.

We next note that the State attempts to distinguish Snowden v. State, 321 Md. 612 , 583 A.2d 1056 (1991), from the case sub judice by arguing that, in the non-jury Snowden case, there was an “inability to determine whether the accused was subjected to separate convictions and punishment for the same act,” while in the present case that problem does not exist because the “jury here was specifically informed of the definition of rape and sexual contact.” The State references the court’s instruction to show that the jury was given specific definitions. We have reviewed the trial court’s jury instruction; it tracks almost verbatim the language of the Maryland Criminal Pattern Jury Instruction, MPJI-Cr 4:29.8 “Sexual Offense— Third Degree Sexual Offense (Age).” The case sub judice involves multiple sexual offense charges and, as we have said, the facts are insufficient to overcome the victim’s testimony that she did not remember more than one incident and that she did not remember what other parts of her body he might have touched. We have examined the instruction in light of these circumstances, and an omission of ¹⁵⁷ a definition from the instruction may well be determinative. We explain.

The trial judge correctly instructed the jury that a third degree sexual offense requires sexual contact. He did not, however, define “sexual contact.” Maryland Code Annotated article 27, section 461(f) (1957 & 1992 Repl-Vol.) defines sexual contact, in part, as including “penetration, however slight, by any part of a person’s body, other than the penis ... into the genital ... opening ... if that penetration can be reasonably construed as being for the purposes of sexual arousal or gratification.... ” (Emphasis added.) If the definition of sexual contact had been included in the court’s instructions then the second degree rape and third degree sexual contact charges could have been described, under the circumstances of this case, as separate and mutually exclusive acts. An inference can be drawn that, in the absence of the definition of sexual contact, the jury is permitted to assume that sexual contact includes penile penetration. Logic dictates that, under the circumstances here, a juror could easily believe that the penile penetration described in the evidence supported the third degree sexual contact offense as well as the second degree rape offense.

We shall now revisit Snowden and several other cases. State v. Boozer, 304 Md. 98 , 497 A.2d 1129 (1985), argued by the State in its brief, appears inapplicable to the problem in the case sub judice. Boozer was basically a double jeopardy case involving separate charging documents in which each offense was charged in a separate count. The Court noted that the apparent legislative intent was to allow separate sexual offenses to be charged for separate sexual or physical acts occurring during a single criminal happening.

In the case sub judice, appellant argues not that the separate charges were improper, but that given the court’s incomplete instructions and the facts appellant was, or may have been, convicted of a third degree sexual offense on the identical evidence of penetration that supported the second degree rape conviction. ¹⁵⁸ In Snowden, 321 Md. at 619 , 583 A.2d 1056 , the Court of Appeals stated: We do not know whether the robbery charged was based on battery as a lesser included offense or on assault as a lesser included offense with the battery considered separate____ [H]ad it been a jury trial we could have looked to the judge’s instructions in hope of illuminating the rationale behind the verdicts____ [W]e are constrained to give the Petitioner the benefit of the doubt and merge his sentence for and conviction of assault and battery into those for the robbery charge. The fundamental principle of fairness in meting out punishing requires us to so hold. See Monoker v. State, 321 Md. 214 , 582 A.2d 525 [1990], Monoker involved a charge of solicitation to commit a crime and conspiracy to commit that crime. The Court initially determined that the two offenses did not meet the required evidence test.

It then held that the rule of lenity, which applies only to statutory offenses, did not apply because these were common law offenses. The Court stated that “[o]ne of the most basic considerations in all our decisions is the principle of fundamental fairness in meting out punishment for a crime.... [W]e conclude that because the solicitation was part and parcel of the ultimate conspiracy ... it would be fundamentally unfair to Monoker for us to require him to suffer twice____” Monoker, 321 Md. at 223-24 , 582 A.2d 525 (citations omitted). In Biggus v. State, 323 Md. 339, 350 , 593 A.2d 1060 (1991), where a single act of digital anal penetration formed the basis for multiple convictions, the Court of Appeals noted: Nevertheless, when the same act or acts of the defendant constitute different criminal offenses or different degrees of the same offense, Maryland common law principles will often require that one offense be merged into the other for sentencing purposes, so that separate sentences are not imposed for the same act or acts. See also State v. Lancaster, 332 Md. 385, at 409-411 , 631 A.2d 453 (1993). ¹⁵⁹ The Court in White v. State, 318 Md. 740, 744-46 , 569 A.2d 1271 (1990), addressed murder and child abuse charges arising out of a single act of homicide.

After discussing the required evidence test, it discussed the “rule of lenity”: Another standard for determining merger ... has become known as the “rule of lenity.” ... [T]he rule provides that doubt or ambiguity ... “ ‘will be resolved against turning a single transaction into multiple offenses.’ ” The Supreme Court has applied the rule of lenity where the same act constitutes an offense under two different statutory provisions.... A few cases have attempted to formulate fixed criteria for deciding whether to apply the rule of lenity, and have indicated that unless two offenses merge under either the required evidence test or under these fixed criteria, there can be no merger. In our view, however, there should not be any rigid or fixed criteria for applying the rule of lenity.... ... The fairness of multiple punishments in a particular statute is obviously important.

Consequently, despite the possible implication to the contrary in some prior Maryland cases, we do not believe that there is any rigid framework for determining whether the rule of lenity is applicable or that the rule of lenity is the exclusive principle for determining whether offenses, separate under the required evidence test, should merge. Id. at 744-47 , 569 A.2d 1271 (citations omitted). By defining sexual contact as not including penile penetration, the legislature has expressly stated that such an act cannot constitute a sexual contact for third degree sexual offense purposes. The legislature’s intentions are not vague or ambiguous — they are clear.

The trial court’s failure to define sexual contact in its instructions permitted the jury ¹⁶⁰ improperly to consider the penile penetration as satisfying the sexual contact element of the offense. The fact that the jury was somewhat concerned about the elements of second degree rape and third degree sexual offense is apparent. The jury retired to deliberate at 4:52 p.m. on December 22nd. Later on that day it recessed and was sent home.

It resumed deliberations at 9:30 a.m. on the 23rd. At 11:15 a.m. it returned to the courtroom and asked the court: Does stretching the hymen/penetrating the labial plane constitute second degree rape? Or please clearly define, again, 2nd degree rape. At 11:39 a.m., just twenty-four minutes after it had returned to the courtroom asking about second degree rape, it returned again to the courtroom and asked: What are the criteria for a 3rd Degree Sex Offense?

In response to the jury’s questions, the trial court did not further define sexual contact or in any way inform the jury that under the facts of this case penile penetration was excluded from consideration as an element of third degree sexual offense. It merely regave its original instructions. We note that generally the pattern jury instructions suffice and trial judges usually may rely on them. We have not discovered any prior cases involving this pattern instruction in a similar factual context and, thus, our holding on this issue is not intended to criticize the trial court.

We are constrained to hold, nevertheless, that when the primary evidence of sexual misconduct is penile penetration of the female genitalia, as in the case sub judice, and separate charges of second degree rape and third degree sexual offense are presented to the jury, that jury must be instructed that penile penetration (in this case the penetration that supports the second degree rape charge) cannot be used as the sole evidence to support a guilty verdict on the third degree sexual offense. Put differently, in addition to the third degree sexual offense pattern instruction, the jury must be ¹⁶¹ instructed that the definition of the sexual contact element of the third degree sexual offense expressly excludes penetration by a “penis, mouth, or tongue.” Md.Code.Ann. art. 27, § 461(f). Failure to define sexual contact under the circumstances of this case is error. We are unable to say that the conviction and punishment for the third degree sexual offense was not based upon the exact same conduct which was the basis for appellant’s conviction and punishment for second degree rape — conduct that, in any event, is not defined as sexual contact under the third degree sexual offense statute.

As we perceive it, Snowden, Monoker, and White , to the extent they are applicable, require merger. We shall thus merge appellant’s sentence for third degree sexual offense into his sentence and conviction for second degree rape. Ill Cross-Examination/Competency Hearing A hearing was held to determine if the victim was competent to testify. Appellant contends that because the court restricted his cross-examination of the victim at the competency hearing, his right to confrontation was denied.

We disagree. There was a more extensive, but comparable, line of questioning in Evans v. State, 304 Md. 487, 505-06 , 499 A.2d 1261 (1985), cert. denied, 478 U.S. 1010 , 106 S.Ct. 3310 , 92 L.Ed.2d 722 (1986), a case that concerned an adult witness’s competency to testify under allegations of psychiatric problems. The questions in Evans were propounded by the court and defense counsel; they related only to the witness’s knowledge of the difference between truth and lying. The court concluded the questioning by asking the witness that if she had ever lied in a prior proceeding: “did you know that you lied?”, the witness ¹⁶² responded, “Yes.” Id. at 506 , 499 A.2d 1261 .

The trial court concluded the competency hearing by stating: That is all I wanted to know, if she knows when she is telling the truth and she knows when [she’s] not telling the truth. She is a competent -witness. Id. Judge Eldridge, for the Court of Appeals, noted: Although it is doubtful that any substantial question was presented concerning the competency of Sparrow to testify, as opposed to her willingness to he when it suited her purposes, Judge ... charted a careful course and elected to voir dire the witness..;. ...

There was evidence that Sparrow had given various inconsistent versions ..., had lied under oath, was a prostitute and a user of drugs, ... and indicated that she would he when it suited her purposes. At the same time ... she understood and appreciated the nature of an oath and possessed the capacity to observe and describe correctly the facts____ The issue [raised by Evans] was one of credibility, not of admissibility---- Id. at 508-09 , 499 A.2d 1261 . The line of questions appellant attempted, in the case sub judice, included: “And when did he [appellant] first do something bad? How long ago was that?”; “Are these things that you’re telling us, are they things you actually remember or did somebody tell you about this?”; and “Did anybody talk[ ] with you about answering these questions here today?” Eventually, after objections to these questions had been sustained, Judge Themelis ruled: I don’t think that has anything to do with regard to the competency of this person, this child, as a witness in this case. ¹⁶³ ...

It may have everything to do with ... what weight the jury is going to give her testimony. Whether they should believe or disbelieve it but it has nothing ... to do with the fact that she can relate past events ... and whether ... she knows the difference between a right and a wrong____ [That] is the whole purpose of this. It is clear that Judge Themelis was fully aware of the purpose of the competency hearing. He was equally aware of and correctly applied the law.

Appellant cites several cases on the right of cross-examination and confrontation. These cases state the correct law appropriate to cross-examination of general witnesses at trial. A competency hearing, however, relates to a witness’s ability to perceive truth as right and lying as wrong and the witness’s understanding of the need for truth in the trial context. The witnesses’s competency is the issue, not her anticipated trial testimony or her credibility.

The competency hearing is generally restricted to its purpose, and so long as cross-examination relevant to that purpose is permitted, confrontation is satisfied. Full cross-examination as to credibility, materiality, and weight is subsequently available should the witness testify as a fact witness before the trier of fact. Judge Themelis did not err. IV Excited Utterance We are faced here with a unique factual situation involving the “exited utterance exception” to the rule prohibiting the admission of hearsay evidence.

The excited utterances in the case sub judice did not occur shortly after the offenses for which appellant stands convicted. They occurred after another, though related, traumatic event. We must thus resolve two matters: (A) whether the event generating the exited utterances has to be the criminal offense to which the utterances relate; and (B) if not, whether the utterances here qualify as exited utterances. ¹⁶⁴ The Event The event triggering the utterance was the discovery by the victim’s uncle of the five-year-old victim on top of her young cousin in the boy’s bed “riding him in a sexual motion.” The uncle asked her “[victim’s name], what are you doing? ... [W]here have you seen this before?” Upon being discovered and questioned, the victim “panicked,” ran away from the uncle’s house and immediately left with her grandmother. It was this event that generated the utterances.

They occurred within twenty minutes of the uncle’s discovery. This event obviously was not the criminal acts for which the appellant was charged, though it precipitated the reporting and discovery of the offenses. A. The Law McCormick, McCormick on Evidence section 297, pp. 854-57 (Edward W. Cleary et al. eds., 3d ed. 1972), notes in respect to excited utterances that: [A]ll agree on two basic requirements [that must exist for a statement made under the influence of a startling event to qualify as an exception to the hearsay rule]. First, there must be an occurrence or event sufficiently startling to render inoperative the normal reflective thought processes ____ Second, the statement ... must have been a spontaneous reaction to the occurrence or event....

The rationale ... lies in the special reliability ... furnished by the excitement suspending the declarant’s powers of reflection and fabrication.... Whether the excited utterance should be required to relate to the exciting event has occasioned a difference of opinion. Some cases have excluded statements for failing to meet this test____ Wigmore suggests that a requirement that the declaration elucidate the event seems to have been taken from the verbal act doctrine without adequate analysis ____ While the outcome of a few cases might be different, depending on whether relation to the exciting event is ¹⁶⁵ considered as a requirement or as a factor bearing on spontaneity, the former seems to be a simpler route to substantially the same destination. [Emphasis added, footnotes omitted]. Commenting on the additional requirement that the statement relate to the exciting event that caused it, Dean Wig-more observes: If, for example, after an assault, the injured person exclaims that in the previous week the attacking party had tried to shoot him, there is perhaps no less reason for trusting that part of his utterance than any other part.

Nevertheless, it is possible to argue that such utterances imply to some extent a process of reflection.... [U]tterances thus relating to some distinct prior circumstance would not be received. But this result has usually been reached by invoking the language of res gestae____ 6 Wigmore, Evidence § 1750(c), p. 222 (Chadbourn rev.1976). He also comments, referring to spontaneous declarations, that “[t]here has been such a confounding of ideas, and such a profuse and indiscriminate use of the shibboleth res gestae, that it is difficult to disentangle the real basis for the principle involved.” Id. § 1745, pp. 191-92. Black’s Law Dictionary 1305 (6th ed. 1990), offers as a definition of res gestae “literally things or things happened and therefore, to be admissible ... words ... must all be so closely connected to occurrence or event in both time and substance as to be a part of the happening---- The whole of the transaction ... and every part of it.... [I]t renders acts and declarations which constitute a part of the things done and said admissible.... ” As we perceive its meaning, the language “continuing part of the transaction,” has become ingrained as a part of res gestae law.

The otherwise independent excited utterance exception has generally been included under the umbrella of res gestae. Estep v. State, 14 Md.App. 53, 66 , 286 A.2d 187 (1972). This has created the improper perception that an excited utterance must be a “continuing part of the transac ¹⁶⁶ tion.” It is generally cases decided in the context of res gestae that use language opining that a declaration must be caused by the excitement of the criminal event. Under a res gestae continuation of the transaction theory, a subsequent event may not qualify as a startling occurrence.

Whether such a subsequent excitable event that is sufficiently related to the original offense — as it was in the case at bar — is part of a continuum is not the issue. The primary focus in construing the excited utterance exception is not on the continuation of transaction theory applicable to res gestae concepts generally. Rather, the focus in construing the excited utterance exception is on the happening of an excitable ^occurrence sufficient to generate an utterance without reflective opportunity — the very concept of an excited utterance. As stated by Judge Moylan in Cassidy v. State, 74 Md.App. 1, 15 , 536 A.2d 666 (1988): The doctrines [excited utterance included] to which it [res gestae] has been applied possess, all of them, a right to existence under well-recognized preexisting principles and can be explained without a resort to this phrase....

Whatever could be analyzed under one or another of the forms of res gestae can now be analyzed more clearly in a water-tight compartment of its own. The phrase res gestae had its day but that day is done. Judge Moylan went on in Cassidy to review the various “res gestae” exceptions and opined that the excited utterance exception had an independent existence and should be separately considered. Id.

In Cassidy , after the infant victim underwent eight hours of medical treatment, a doctor asked her “Who did this” and she responded “Daddy.” Id. at 6 , 536 A.2d 666 . Unlike the case at bar, the child was never offered as a witness and did not testify. After discussing the various treatise writers’ retreats from the term res gestae and their extensive comments supporting those retreats, Judge Moylan offered perhaps the simplest ¹⁶⁷ and clearest definition of the excited utterance exception’s purpose: The essential rationale for the Excited Utterance Exception is spontaneity arising immediately from the exciting event and not yet having abated when the utterance is made. Id. at 17 , 536 A.2d 666 .

He further noted McCormick’s analysis of the time factor, i.e., time between the exciting event and the utterance, stating: Perhaps an accurate rule of thumb might be that where the time interval between the event and the statement is long enough to permit reflective thought, the statement will be excluded in the absence of some proof that the declarant did not in fact engage in a reflective thought process. Testimony that the declarant still appeared “nervous” or “distraught” and that there was a reasonable basis for continuing emotional upset will often suffice. Id. (emphasis added).

Many jurisdictions in numerous cases have commented that the utterance should relate to the exciting event that generated it. In most of these cases, the criminal offense or other event that generated the excitement was also the subject of the excited utterance. The theory that a subsequent traumatic or startling event can generate excited utterances about a prior related event has been rejected by foreign jurisdictions in only a few instances. They include State v. Walton, 432 A.2d 1275 (Me.1981), in which the child, immediately after one sexual incident with the perpetrator, and while in a state of excitement caused by that incident, made a declaration about prior sexual offenses (as well as the