Behrel v. State

HOLLANDER, J. Kenneth Kurt Behrel, appellant, a former Episcopal pastor, 1 was convicted in the Circuit Court for Washington County of sexually abusing Matthew Curtis (the “Curtis trial”), and, at a separate trial, of sexually abusing Jeffrey Miller (the “Miller trial”). The court sentenced appellant to two consecutive twelve-year terms of imprisonment for his violations of Md. Code (1957, 1996 Repl. Vol.), Ait. 27, § 35C. This consolidated appeal followed. 2 From 1980 to 1985, appellant, then in his 30’s, served as the chaplain, a teacher, and a “Hall Master” at Saint James School (“SJS” or the “School”), an Episcopal boarding school near Hagerstown.

In 1985, he moved to Illinois, where he served as rector of Saint Andrew’s Parish until February 5, 2001. The victims, Miller and Curtis, were high school boarding students at SJS during appellant’s tenure as chaplain. As to both trials, appellant asks us to consider whether the circuit court erred in denying his motion to suppress evidence seized from his residence in Illinois pursuant to a search warrant. The warrant was issued about sixteen years after the alleged crimes occurred, and the search pertained to appellant’s residence in Illinois, a location unrelated to the place of the alleged offenses.

Therefore, appellant claims the search warrant was founded on stale information rather than probable cause. In addition, we are asked to resolve whether ⁷⁶ the court below erroneously admitted “other crimes” evidence at the Curtis trial by allowing Miller to testify to appellant’s abuse of him. Finally, we must determine whether the trial court abused its discretion at the Miller trial by denying appellant’s motion for mistrial after Miller alluded to appellant’s abuse of others. Behrel frames three questions for our review, which we have reformulated slightly: I. With respect to both trials, did the circuit court err in denying appellant’s motion to suppress evidence recovered during the execution of the search warrant issued for appellant’s residence in Illinois?

II

Did the trial court err in admitting “other crimes” evidence at the Curtis trial?

III

Did the trial court err in denying appellant’s motion , for mistrial in the Miller trial? For the reasons that follow, we shall affirm appellant’s conviction in the Miller trial, vacate appellant’s conviction in the Curtis trial, and remand that case for further proceedings. I. THE MOTIONS TO SUPPRESS A. Factual Summary On December 11, 2000, Behrel was charged with the sexual child abuse of both Curtis and Miller. Following appellant’s indictments, the Maryland State Police contacted the authorities in Illinois, to obtain and execute a search warrant for 302 Buckingham Drive in Grayslake, Illinois, where appellant then resided.

Louis Archbold, a special investigator with the Lake County prosecutor’s office, was assigned to the matter. An Illinois search warrant was issued on February 2, 2001, and executed by the Grayslake, Illinois Police Department on February 5, 2001, in the presence of Trooper First Class (“TFC”) Michael Potter of the Maryland State Police. During the search, the police seized a footlocker that matched the description of a trunk provided by Curtis and Miller. Pornographic materials found inside the footlocker were also seized. ⁷⁷ Claiming that the information supporting the warrant was stale, appellant moved in both cases to suppress the footlocker and the pornographic materials.

He argued that the warrant did not establish probable cause, because the events described in the affidavit occurred some sixteen years earlier and in another state. At the joint hearing held on August 13, 2001, Potter testified for the State; appellant did not present any witnesses. What follows is a summary of the evidence adduced at the hearing. The investigation of appellant began on April 10,1998, when Curtis reported to the Flathead County, Montana Sheriffs Department that, from 1983 to 1985, while he was a high school student at SJS, appellant repeatedly subjected him to sexual abuse.

During a recorded interview, Curtis claimed that the abuse began with fondling and progressed to oral sex and sodomy in appellant’s SJS campus apartment. In addition, Curtis reported that appellant had sodomized another student named Jeff Miller. Further, Curtis disclosed that appellant stored pornographic material and sexual aids in a footlocker that he used as a coffee table in his campus apartment. Curtis’s complaint and interview were forwarded to the Maryland State Police' for further investigation.

After the matter was assigned to Potter, he met with Curtis. According to Potter, Curtis reiterated the claims that he had made to the Montana Sheriffs Department, including the information regarding appellant’s sexual activities with Miller. Potter also stated that Miller was located in Alexandria, Virginia about six to nine months later. He obtained a formal statement from Miller on June 29, 2000.

Miller told Potter that, while he was a student at SJS from 1981 to 1984, he was sexually abused by appellant in appellant’s campus apartment. According to Miller, the abuse progressed from fondling to fellatio and sodomy. Further, Miller recalled that appellant had a “foot locker” that he “used as a coffee table ...,” in which appellant stored photographs that he took of Miller “in sexual positions against [his] will.” Although Miller acknowledged that he knew of Curtis, he claimed he had “no real dealings with him,” and the two were not friends. ⁷⁸ On cross-examination, Potter admitted that the alleged abuses occurred in Maryland; there were no allegations that any of the offenses had occurred at appellant’s residence in Illinois. Moreover, Potter acknowledged that the abuse had occurred some fifteen to twenty years prior to the execution of the warrant.

Potter also conceded that he had no “direct evidence” of anything in appellant’s residence in 2001 that would constitute evidence of the alleged offenses. The Complaint for Search Warrant (“the Complaint”) was admitted in evidence, along with the supporting affidavit executed by Archbold. The items sought in the search included: [A] footlocker and/or storage trunk, photographs and videos depicting child pornography, inhalants (i.e.: “Rush"), written correspondence, computers, computer hardware, computer disks, and all items related to the offenses of criminal sexual assault, aggravated criminal sexual assault, criminal sexual abuse and aggravated criminal sexual abuse and child pornography. In his affidavit, Archbold relied entirely on information provided to him by Potter.

Because the content of the affidavit is central to the issue of staleness, we quote from it at length: Your affiant states that he was contacted by Trooper First Class, Michael Shane Potter, a member of the Maryland State Police, regarding Father Kenneth K. Behrel of St. Andrew Parish in Grayslake. Trooper Potter has been with the Maryland State Police for 27 years. He completed the Maryland State Police Academy and is certified as a police officer in the State of Maryland. Trooper Potter has an Associates [sic] Degree in Administration of Justice from Hagerstown Junior College and a Bachelor of Science Degree in Criminal Justice from the University of Baltimore.

In addition Trooper Potter has attended numerous training courses including courses dealing with child abuse, crimes against persons and child pornography. Trooper Potter has been assigned to criminal investigations for the past twelve (12) years. During Trooper Potter[’s] ⁷⁹ police career he has been involved in the execution of W search and seizure warrants in Washington County, Maryland. Trooper Potter has investigated and assisted in over 300 crimes involving child abuse and sexual offenses.

Trooper Potter has also attended in-service schools with the Maryland State Police, seminars and other classes dealing with child abuse and sexual offenses. Trooper Potter has learned through his training that sexual offenders tend to keep mementoes of prior acts along with pictures and videos. Your affiant states that Trooper Potter related, the following facts regarding Father Kenneth K Behrel; [sic] On April 10, 1998, victim Matthew Curtis made a complaint to investigators at the Flathead County, Montana Sheriffs Department that he had been the victim of sexual assaults in Washington County, Maryland. A recorded statement of the victim was taken and fonvarded to the Hagerstown Barracks of the Maryland State Police.

In his statement, the victim alleged that he lived on campus as a student at St. James School. He attended classes at the school between September 1982 and June 1986. The victim said the sexual abuse by Father Kenneth Behrel, a priest who lived in the apartment on campus, began around January or February 1983. The last sexual encounter between Behrel [and Curtis] was sometime in 1985.

As the school priest and instructor at the school, Behrel was responsible for the care and supervision of the students, including the victim. The abuse began with Behrel fondling the victim’s penis. The abuse always occurred in Behrel’s campus apartment. The abuse progressed to Behrel performing oral sex on the victim, the victim performing oral sex on Behrel, and Behrel performing sodomy on the victim.

On many occasions, Behrel masturbated the victim and on at least one occasion the victim masturbated Behrel. During these sexual encounters, Behrel would get a pornographic video movie from a footlocker that he used as a coffee table stand in his apartment. This footlocker was kept locked by Behrel [and] also contained lubricant he used just prior ⁸⁰ to sodomizing the victim. The footlocker also contained pornographic magazines.

During these sexual encounters, Behrel told the victim that he had also sodomized another student at the school and he identified that student as “Jeff’ Miller. The victim did not know Miller personally but knew of him. Miller was two years ahead of him at the school. The victim has never talked to Miller about any topic including the allegations of abuse.

A check of school records at St. James School revealed that both victims, Curtis and Miller, had attended school there during the tenure of Father Behrel. Records indicated that Behrel had been a priest at the school between September 1980 and June 1985. Both victims were involved in a select group of males assigned to Behrel for training in religious functions at the school such as sacristans. Victim Jeffrey Miller was located living in Alexandria, Virginia in the Spring of 1999.

He was reluctant to be interviewed because he was now married and had a family. After several months, Miller consented to be interviewed. He said he was a student at St. James School between September 1981 and May 1984. He. was a live on campus student.

Miller said that he became acquainted with Father Behrel from his participation in religious functions at the school beginning as a[n] acolyte. Behrel allowed him to come to his campus apartment and watch television in the evenings because of his association in religious functions. In 1982, Miller found himself being treated “special” by Behrel and was allowed to watch television alone after hours in Behrel’s apartment. Behrel began giving him back massages under his clothing.

Behrel also gave alcoholic beverages to Miller during this time. These massages progressed until Behrel was massaging his genital area. During this time, Behrel fondled Miller’s penis. The events escalated over a short period of time to Behrel taking off Miller’s clothes, masturbating him, and performing oral sex on him.

The sexual abuse continued during the remaining years that Miller attended the school with Miller ⁸¹ always told to come to Behrel's apartment one day a week. During that time, Behrel would engage in sexual activity with Miller. The activity escalated to include Behrel performing sodomy on Miller. During the sexual activity, Behrel would show Miller pornographic movies which he obtained from a footlocker that he used as a coffee table in his apartment.

He also obtained a lubricant from the same locker. During the sexual activity, Behrel also took photographs of Miller. Some of the photographs were of Miller nude and others were taken as Behrel was performing sodomy on Miller, taking a picture of the sexual act. The photographs were kept in a stack held by a rubber-band and kept in the footlocker which was always locked and Behrel had the key.

Miller also took several trips with Behrel during his time as a student at St. James including trips to Chicago, Illinois and Michigan. During these trips, Behrel also engaged in sexual activity with Miller to include oral sex and sodomy at various locations in various states. Trooper Potter advised your affiant that an indictment has been issued in Maryland for Kenneth K Behrel for the above listed offenses. (Boldface added; italics in original).

Urging the court to suppress the evidence, appellant’s attorney said: All we have in the complaint for a search warrant is Trooper Potter’s belief that some sexual offenders sometimes keep mementoes. I submit that that is not sufficient probable cause. The cases cited by the State for longer periods than say eleven months ... involve business records and where people have gone to see those business records or see file cabinets in the person’s home shortly before the affidavit. I would submit, [Y]our Honor, that if probable cause is found in this case, probable cause can be found in any case by someone merely submitting [sic].

I know of no on-going activity than the incisive nature of drug trafficking. And I submit that it would be more than reasonable for an officer to state that, “It’s my experience that a previous drug ⁸² offender ... unless he gets treatment will continue in drug trafficking and probably would have something in their apartment.” * * * [W]e don’t even have a search of the residence at Saint James. We have a search of a residence after someone has moved and I don’t agree with [the Prosecution] that twenty years later we may have the same furniture after moving on different occasions. You might.

You might not. But more importantly, it wasn’t furniture they were looking for. But ... and ironically no mementoes of Mr. Curtis or Mr. Miller were found in the search. There were no such photographs or mementoes found of them.

But nevertheless the State, I assume, wishes to bring in these items to argue that the defendant is a bad person and leads a contrary lifestyle than most of us would. But in any event, I believe there is simply [a] lack of probable cause in the warrant. I don’t believe the magistrate should have issued it.... (Emphasis added).

The State countered that, as to the footlocker and its contents, the information was not rendered stale by the passage of time. It argued: [U]nlike drugs or lottery tickets, which may be contraband per se[,] this trunk is not contraband per se. It’s an item of furniture. And it’s not unreasonable to believe that this item of furniture that [appellant] had while he was in Saint James School is an item of furniture that he would continue to keep throughout his life.

And so while this may be a significant number of years after the fact, I would ask the court to consider the special character of the piece ... of the item that was sought and to look at that item not as contraband per se but as furniture and something that the defendant would hang on to, which in fact, we know that he did. ⁸³ Your Honor____As we know ... the police are encouraged to seek search warrants. And so did the magistrate, did the issuing judge in Illinois have a substantial basis for issuing the search warrant that he did? And I would submit to the Court that he did. Evaporation of probable cause may well occur with a drug case, with lottery tickets but here it is an on-going item ... or it is an item which he continues to have in his presence.

It’s furniture and it has a special character that these other items don’t have. And so, I submit to the Court that there was in fact probable cause to issue this search warrant for this property. (Emphasis added). Concluding that “[pjrobable cause was not stale,” the court denied the suppression motion. 3 It reasoned: Well I have read both of the interviews that form the basis of the statement of probable cause upon which the search warrant was issued in Illinois.

Just as a matter of reference, Page 6 of the interview with Curtis... Mr. Curtis talks first about the footlocker. [Curtis said:] “I remember another specific incident ivhen he had a footlocker at the base of his couch and it had a lock on it. Inside was the porno magazines and a porno tape ...” And in the statement of Jeffrey [Miller] it first talks about the locker on Page 4. “I recall furniture as a footlocker, ah which was used as a coffee table to the sofa, which in fact was laying on that particular sofa at the time and it certainly had some things in it which we will later come across.” ⁸⁴ He then goes on to graphically describe the activities. He talks about photographs, Page 10.

The type photos he was talking about, “Were they Polaroid photos? Yes they were. So you could see them immediately after it was done. Did he show them to you?[”] Jeffrey’s answer, “I don’t know if they were in an album but he would ... bundle ... them together and I recall seeing that in his footlocker that I told you about acted as a coffee table in his apartment....

It was a black footlocker, kind of a dark with some beading, a standard kind of footlocker____” That was part of the information that became the statement of probable cause to believe that there was evidence of crime, evidence of methodology, evidence of instruments, specifically ■ the footlocker. The complaint for the search warrant was not general in nature. It requests the search warrant for the purpose of seizing the following described instruments, articles and things: a footlocker and/or storage trunk, photographs and videos depicting child pornography, inhalants—i.e. rush, written correspondence, computers, et-cetera that would be relating to the offenses of sexual abuse, criminal sexual abuse, aggravated criminal sexual abuse, child pornography. (Emphasis added).

B. Discussion 1. Probable Cause Appellant contends that the court erred in failing to suppress the footlocker and its contents, claiming “that there was no probable cause to believe that the defendant’s home in [Illinois in] 2001 contained evidence of alleged offenses which occurred in another state some 15-20 years earlier.” According to appellant, “the search was so far removed from the date of the alleged crimes some fifteen years earlier that any ⁸⁵ warrant would have been defective as a result of this staleness.” The State counters: Given [the] allegations of sexual misconduct and of storing pornography, sexual aids and explicit photographs of one of the victims, in conjunction with the averment of Trooper Potter’s knowledge that “sexual offenders tend to keep mementoes of prior acts along -with pictures and videos,” the judge’s decision to issue the warrant was supported by a substantial basis to believe that evidence would be found at Behrel’s apartment in Grayslake, Illinois. 4 The Fourth Amendment of the United States Constitution proscribes the issuance of any warrant “but upon probable cause, supported by Oath and affirmation, and particularly describing the place to be searched and the persons or things to be seized.” U.S. Const. Amend.

IV

To be sure, “[a] judicially authorized warrant is the cornerstone of the Fourth Amendment....” Wiegmann v. State, 118 Md.App. 317, 347 , 702 A.2d 928 (1997), aff'd, 350 Md. 585 , 714 A.2d 841 (1998); see also Braxton v. State, 123 Md.App. 599, 619 , 720 A.2d 27 (1998). “Article 26 of the Maryland Constitution is in pari materia with the fourth amendment.” Birchead v. State, 317 Md. 691, 700 , 566 A.2d 488 (1989); see Scott v. State, 366 Md. 121, 139 , 782 A.2d 862 , cert. denied, 535 U.S. 940 , 122 ⁸⁶ S.Ct. 1324, 152 L.Ed.2d 231 (2002); Muse v. State, 146 Md. App. 395 , 402 n. 7, 807 A.2d 113 (2002). Accordingly, before conducting a search, the police ordinarily must obtain a search warrant based upon “ ‘ “sufficient probable cause to justify its issuance as to each person or place named therein.” ’ ” State v. Ward, 350 Md. 372, 387 , 712 A.2d 534 (1998) (citations omitted); see Connelly v. State, 322 Md. 719, 726 , 589 A.2d 958 (1991). Probable cause is defined as a “fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238 , 103 S.Ct. 2317 , 76 L.Ed.2d 527 (1983); see Williams v. State, 372 Md. 386, 420 , 813 A.2d 231 (2002); Holmes v. State, 368 Md. 506, 519 , 796 A.2d 90 (2002); West v. State, 137 Md.App. 314, 321 , 768 A.2d 150 , cert. denied, 364 Md. 536 , 774 A.2d 409 (2001). In the seminal case of Illinois v. Gates, supra, 462 U.S. 213 , 103 S.Ct. 2317 , 76 L.Ed.2d 527 , the Supreme Court reiterated that “the central teaching of [its] decisions bearing on the probable-cause standard is that it is a ‘practical, nontechnical conception.’ ” Id. at 231 , 103 S.Ct. 2317 (citation omitted).

Thus, the issuing judge makes a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. Id. at 238 , 103 S.Ct. 2317 . See also United States v. Ventres-ca, 380 U.S. 102, 108 , 85 S.Ct. 741 , 13 L.Ed.2d 684 (1965) (noting that a “grudging” attitude on review will “discourage police officers from submitting their evidence to a judicial officer before acting”; recognizing that “affidavits for search warrants ... must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion”). Adhering to the same practical approach, the Court of Appeals has advised that, in ⁸⁷ reviewing affidavits on a probable cause determination, “when a magistrate has found probable cause, the courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense manner.

Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.” Valdez v. State, 300 Md. 160, 169 , 476 A.2d 1162 (1984) (citations omitted). In determining whether a warrant is supported by probable cause, “the issuing judge is confined to the averments contained in the search warrant application.” Birchead, 317 Md. at 700 , 566 A.2d 488 ; see State v. Coley, 145 Md.App. 502, 520 , 805 A.2d 1186 (2002). However, wholly conclusory statements in a warrant application ordinarily will not suffice. See Gates, 462 U.S. at 239 , 103 S.Ct. 2317 .

Nor is the issuing judge a mere “ ‘rubber stamp for the police.’ ” Grimm v. State, 7 Md.App. 491, 493 , 256 A.2d 333 (1969) (citation omitted); see Braxton, 123 Md.App. at 622 , 720 A.2d 27 . Nevertheless, to effectuate the preference for warrants, deference is accorded to the issuing judge’s determination. See Gates, 462 U.S. at 236 , 103 S.Ct. 2317 ; McDonald v. State, 347 Md. 452, 467 , 701 A.2d 675 (1997), cert. denied, 522 U.S. 1151 , 118 S.Ct. 1173 , 140 L.Ed.2d 182 (1998); State v. Riley, 147 Md.App. 113, 119-120 , 807 A.2d 797 (2002). On the other hand, there are “limits beyond which a magistrate may not venture in issuing a warrant,” Gates, 462 U.S. at 239 , 103 S.Ct. 2317 , and “[d]eference ... is not boundless.” Leon, 468 U.S. at 914, 104 S.Ct. 3405 .

This means that a reviewing court must determine if the issuing judge had “a substantial basis for concluding that the evidence sought would be discovered in the place described in the application and its affidavit.” State v. Lee, 330 Md. 320, 326 , 624 A.2d 492 (1993); see Massachusetts v. Upton, 466 U.S. 727, 728 , 104 S.Ct. 2085 , 80 L.Ed.2d 721 (1984) (reiterating that “the task of a reviewing court is not to conduct a de novo ⁸⁸ determination of probable cause, but only to determine whether there is substantial evidence in the record supporting the magistrate’s decision to issue the warrant”); see also Williams, 372 Md. at 420 , 813 A.2d 231 ; Ward, 350 Md. at 398 , 712 A.2d 534 ; McDonald, 347 Md. at 467 , 701 A.2d 675 . Maryland Code Ann. (1957, 1996 Repl.Vol.), Art. 27, § 551(a), is also relevant 5 ; it provides that a judge may issue a search warrant if the supporting affidavit demonstrates probable cause. But, the search warrant must “describe, with reasonable particularity, ... the grounds” to search a particular place. Id.; see also Braxton, 123 Md.App. at 622 , 720 A.2d 27 .

One of the factors in the “probable cause puzzle” concerns the staleness of the information contained in an affidavit supporting a search warrant application. West, 137 Md.App. at 327-28 , 768 A.2d 150 . “[I]f the facts set out in the affidavit were indeed ‘stale’ at the time the warrant was issued, the affiant would not have had reasonable grounds” to believe that the object of the search would be found “on the premises to be searched.” Id. at 346 , 768 A.2d 150 . The Court explained in Peterson v. State, 281 Md. 309, 314 , 379 A.2d 164 (1977), cert. denied, 435 U.S. 945 , 98 S.Ct. 1528 , 55 L.Ed.2d 542 (1978): “The affidavit for a search warrant on probable cause, based on information and belief, should in some manner, by averment of date or otherwise, show that the event or circumstance constituting probable cause, occurred at the time not so remote from the date of the affidavit as to render it improbable that the alleged violation of law authorizing the search was extant at the time the application for the search warrant was made.” (Citation omitted). Staleness, however, is not a rigid concept; it depends on the particular circumstances of the case.

In his treatise discuss ⁸⁹ ing search and seizure law, LaFave noted that “ ‘a highly incriminating or consumable item of personal property is less likely to remain in one place as long as an item of property which is not consumable or which is innocuous in itself or not particularly incriminating.’ ” 2 LaFave, Search and Seizure § 3.7(a), at 348 (3d ed. 1996) (“LaFave”) (quoting United States v. Steeves, 525 F.2d 33, 38 (8th Cir.1975)). We find further guidance in Andresen v. State, 24 Md.App. 128, 172 , 331 A.2d 78 (1975), aff'd., 427 U.S. 463 , 96 S.Ct. 2737 , 49 L.Ed.2d 627 (1976). Judge Moylan, for the Court, explained: The ultimate criterion in determining the degree of evaporation of probable cause, however, is not case law but reason. The likelihood that the evidence sought is still in place is a function not simply of watch and calendar but of variables that do not punch a clock: the character of the crime (chance encounter in the night or regenerating conspiracy?), of the criminal (nomadic or entrenched?), of the thing to be seized (perishable and easily transferable or of enduring utility to its holder?), of the place to be searched (mere criminal forum of convenience or secure operational base?), etc. The observation of a half-smoked marijuana cigarette in an ashtray at a cocktail party may well be stale the day after the cleaning lady has been in; the observation of the burial of a corpse in a cellar may well not be stale three decades later.

The hare and the tortoise do not disappear at the same rate of speed. (Emphasis added). West, 137 Md.App. at 347-48 , 768 A.2d 150 , is also instructive. Writing for the Court, Judge Thieme said: In Clayton v. State, 1 Md.App. 500, 503 , 231 A.2d 717 (1967), we stated: “There is no statute in this State providing that the facts in the application, set forth to establish probable cause, must result from observations made within a designated time before the issuance of the warrant.” We noted that “the remoteness of the facts observed from the date of issuance of the warrant is an element to be consid ⁹⁰ ered in each instance by the issuing authority in his determination ... of whether it appears that there is probable cause.” Id. * SÜ * There is no “bright-line” rule for determining the “stale ness” of probable cause; rather, it depends upon the circumstances of each case, as related in the affidavit for the warrant.

See, e.g., United States v. Hemandez-Escarsega, 886 F.2d 1560 (9th Cir.1989) (probable cause not stale when last event occurred almost one year before the warrant issued, but there was evidence of protracted criminal activity); United States v. Craig, 861 F.2d 818 (5th Cir.1988) (when affidavit described criminal activity of long standing, information need not be regarded as stale even if fairly long periods of time have elapsed between information and the issuance of the warrant). (Emphasis added). In analyzing the issue of staleness, “the expertise and experience of the officer are to be taken into account in applying the Fourth Amendment probable cause test”, even if “the officer would not qualify as an expert witness on the subject.” 2 LaFave, § 3.2(c), at 38-39, 38 n. 70 (citing United States v. Ortiz, 422 U.S. 891, 897 , 95 S.Ct. 2585 , 45 L.Ed.2d 623 (1975) (holding that “officers are entitled to draw reasonable inferences from the[ ] facts in light of their knowledge of the area and their prior experience____”); United States v. Brignoni-Ponce, 422 U.S. 873, 885 , 95 S.Ct. 2574 , 45 L.Ed.2d 607 (1975) (concluding that “the officer is entitled to assess the facts in light of his experience.... ”); and Terry v. Ohio, 392 U.S. 1, 27 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968) (“[D]ue weight must be given ... to the specific reasonable inferences which [the police officer] is entitled to draw from the facts in light of his experience.”)). Here, the search warrant issued in February 2001 pertained to events that occurred, at the latest, in 1985.

Moreover, the warrant involved a search in Illinois, not Maryland. But, contrary to appellant’s suggestion, the mere passage of time ⁹¹ and change of residence are not dispositive, because “[t]he likelihood that the evidence sought is still in place is a function not simply of watch and calendar.... ” Andresen, 24 Md.App. at 172 , 331 A.2d 78 . Although we have not uncovered any Maryland cases addressing the issue of staleness in the context of the circumstances attendant here, other jurisdictions have done so. The State refers us to State v. Kirsch, 139 N.H. 647 , 662 A.2d 937 (1995), to support its contention that probable cause was not defeated by the passage of time or appellant’s change of residence.

In Kirsch , the defendant was the leader of pre-teen groups at his church; he was suspected of sexually assaulting several children between 1978 and 1987. Id. at 939. In 1990, the police obtained a warrant to search the defendant’s home, based on interviews of two victims. During the search, the police seized pornographic materials and school photographs of various children, including some of the victims.

Id. The defendant unsuccessfully moved to suppress the evidence and was convicted. On appeal, he argued “that the warrant was not supported by probable cause in that it was based on stale information,” because the most recent alleged incident of abuse occurred six years prior to the warrant application. Id. at 940.

In assessing whether there was “a substantial likelihood that contraband or evidence of crime will be found in the place to be searched”, the New Hampshire Supreme Court upheld the finding of probable cause. Relying on cases from other states, it found “that an appreciable lapse of time was no bar to a finding of probable cause to issue a search warrant, in light of the nature of the offense and of the items sought.” Id. The court stated: Here, the affidavit recounted sexual abuse of children over a period of six years. During that period the [appellant] photographed the children and displayed pornographic movies during some of the assaults....

A “common-sense inference” about the longevity of child pornography for the ⁹² sexual abuse of children may reasonably be drawn from the nature of the items themselves, such as the photographs taken of the children. “Photographs guarantee that there will always be an image of the child at the age of sexual preference.... ” Id. at 940-41 (internal citations omitted). Accordingly, the court determined that “it [was] reasonable for a magistrate to conclude that all the items sought were reasonably connected to the suspected criminal activity and likely to have been retained by the defendant.” Id. at 941. People v. Russo, 439 Mich. 584 , 487 N.W.2d 698 (1992), cited in Kirsch , is also instructive. There, the Michigan Supreme Court reversed the lower court’s finding that “the passage of time negated an inference of probable cause” in connection with a search warrant issued for the defendant’s home more than six years after the last alleged incident of sexual abuse had occurred at that location.

Id. at 700, 704 . Finding probable cause, the appellate court stated, id. at 710-11 , 711: [U]nlike the possession of contraband or the situation in which the criminal activity incidentally and sometimes unwittingly creates evidence of crime, where the reasonable inference is that a person will get rid of incriminating evidence, the case at bar involves a situation in which the individual intentionally created evidence of his criminal activity and displayed it over the course of years. Moreover, the evidence was not simply created and used, it was stored with a degree of care indicative of its continuing value to the defendant. Finally, it is possible to infer that the items might have ceased to have value for the defendant when his molestation of the victim ceased.

But just as the possibility that there was an innocent explanation for the behavior of the defendants in Gates did not negate the majority’s finding that there was a fair probability that they were engaged in criminal activity, [ ] we think that the magistrate here could conclude that there was a “fair probability” of the presence ⁹³ of evidence which had sexual, historical, and perhaps even sentimental, significance for its possessor and creator. We hold only that where suspicion of criminal activity has focused on a specific individual by a standard more probable than not, and it is alleged that the evidence sought was created, retained, and employed in ongoing criminal activity over a four-year period, the magistrate could reasonably conclude that there was a “fair probability” that the evidence would be retained in the residence of the accused. The Supreme Court of Iowa’s decision in State v. Woodcock, 407 N.W.2d 603 (Iowa 1987), is also illuminating. The defendant challenged his third-degree sexual abuse convictions, claiming that the court erred in admitting evidence obtained from his home during the execution of a search warrant.

Id. at 603 . The defendant argued that the search was not based on probable cause because the underlying information was stale, in that it was more than a year old. Id. at 604 . The supporting affidavit stated, in part, 407 N.W.2d at 605 : Your affiant has had conversations with [a] Special Investigator ... who has received training in the area of child Sexual Exploitation and pedophiles and [he] and your affiant both have received training that indicates that pedophiles and others who sexually exploit children by taking erotic photographs are inclined to not destroy such photographs but to save them for future use and gratification and that such individuals maintain lists by way of documents and computer lists of children they are sexually active with including the names, ages, addresses and birth dates of such children.

Rejecting the defense’s contention, the Iowa court said: [T]he nature of the offense is a factor bearing on a claim of staleness, and it would be reasonable for an issuing magistrate to conclude that a person charged with sexual exploitation of children through photographs and similar ⁹⁴ items would be likely to retain them for an indefinite period of time. % * * Thus, in contrast to theft or robbery cases where the evidence would be expected to be moved fairly rapidly, and in contrast to drug cases where the evidence would likely have been sold or consumed in a year and a half, the types of material involved here would be more likely to be retained. Their perceived usefulness to the suspect would be of a continuing nature, through gratification obtained by him. Id. We are also guided by State v. Jannetta, 355 N.W.2d 189 (Minn.Ct.App.1984).

There, the police received information regarding the appellant’s sexual misconduct, but waited two years before applying for a search warrant. Id. at 192-93 . Nevertheless, the court determined that the information was not stale. Id. at 194 .

It reasoned: In any application for a search warrant, a gap of two years from the source of the information to the application for a warrant is of great concern. In the narrow circumstances of this case, however, the gap is less critical than it might be. The; juvenile informant gave information about photographs, books and magazines containing photographs he saw in appellants’ possession two years earlier. As the trial court noted, these items might be expected to be retained by a person engaged in ongoing criminal sexual conduct.

The photographs would likely have enduring utility to the perpetrator for his own sexual gratification. Id.; see also Gregg v. State, 844 P.2d 867, 873, 875 (Okla.Crim. App.1992) (finding that information regarding taking and possessing obscene photographs and videos of children was not stale, despite passage of three years since material was last seen in defendant’s possession; affiant averred that he knew from “training and experience” that “individuals who are involved with the sexual exploitation of children and child pornography, rarely, if ever, dispose of their sexually explicit ⁹⁵ materials”), reh’g denied, 1993 Okla.Crim.App. LEXIS 3 (1993); People v. Osborn, 122 Mich.App. 63 , 329 N.W.2d 533, 535 (1982) (finding that the “affidavit’s allegations of a long history of sexual abuse between the child and defendant and the victim’s personal knowledge of the existence and location of the photographs ... constituted probable cause sufficiently fresh to presume that the photographs were in defendant’s residence,” although photographs were last seen forty-five days earlier; magistrate did not err in concluding “that defendant would not quickly dispose of pictures but would retain them for his own future perverse enjoyment”); State v. Jones, 299 N.C. 298 , 261 S.E.2d 860, 865 (1980) (concluding that, as to gloves and hatchet used in murder, probable cause existed five months after offense because items “were not particularly incriminating in themselves and were of enduring utility to defendant”). We are mindful that the places that were searched in the cases cited above were the same locations where the alleged abuses occurred.

In contrast, the residence searched in this case was located hundreds of miles from the residence where the alleged crimes occurred. We also recognize that, in the cases mentioned above, none involved a lapse of time as lengthy as the period here. Certainly, as LaFave recognizes, |tjhe nature of the place to be searched and the suspect’s relationship to it cannot be ignored.... If the offender has relocated his residence between the time of the crime and the time of the search this will sometimes add weight to the argument that the information has become stale. 2 LaFave, § 3.7(a), at 353-54 & n. 55 (citing Kasold v. Cardwell, 393 F.Supp. 197 (D.Ariz.1975), rev’d without op., 554 F.2d 1069 (9th Cir.1977)).

Nevertheless, we are satisfied that, in the context of this case, the information was not stale. Significantly, it was the items sought in appellant’s residence, not the residence itself, which were of critical importance here. Therefore, this case is unlike those in which the particular place sought to be searched is critical to the determination of probable cause. To ⁹⁶ illustrate, when a person is a murder suspect, and the police seek to recover microscopic samples of the victim’s hair or blood, a suspect’s change of residence would obviously be of great significance in the probable cause analysis.

In this case, however, the exact location of appellant’s residence was not dispositive of the issue; probable cause was not defeated merely because appellant had moved to Illinois. See 2 La-Fave, § 3.7(a), at 354 n. 55 (noting that probable cause is not necessarily defeated where the items sought are “ ‘of a sexual nature which it is reasonable to believe the defendant intended to keep.’ ”) (quoting State v. Kasold, 110 Ariz. 563 , 521 P.2d 995, 998 (1974)); see also United States v. Agosto, 43 M.J. 745, 747, 748, 749 (A.F.Ct.Crim.App.1995) (finding probable cause for search of airman’s dormitory room for photographs and telephone numbers of young girls, even though airman had changed dorm rooms after allegedly committing a rape; stating that “a reasonable person would conclude that appellant moved all of his personal papers, like photographs and telephone numbers, to his new residence____”; noting items “were not necessarily incriminating in themselves” and “were not consumable over time”), rev’d on other grounds, 46 M.J. 389 (C.A.A.F.1997). Instead, it was the nature of what was sought that was important here. According to the affidavit, both victims indicated that a footlocker in Behrel’s campus apartment served as both a coffee table and a repository for sexual aids and pornographic materials.

To the extent that the footlocker functioned as a piece of furniture and a repository for pornographic materials, it never lost its utility. Nor was it perishable. Furthermore, possession of the trunk was not incriminating in itself, so that it would not have been disposed of as contraband. And, the footlocker was readily transportable from one state to another.

See Andresen, 24 Md.App. at 172 , 331 A.2d 78 ; see also 2 LaFave, supra, § 3.7(a), at 348. Additionally, the affiant averred that Potter had special training with regard to child abuse and sexual offenses, and had participated “in over 300 crimes involving child abuse and sexual offenses.” Potter indicated that, based on his training, ⁹⁷ he knew “that sexual offenders tend to keep momentos of prior acts along with pictures and videos.” As noted, both victims indicated that appellant used the footlocker for that purpose. The issuing judge was entitled to conclude from the affidavit that a person charged with the sexual abuse and exploitation of children would be likely to retain pornographic material and lewd photographs indefinitely. Considering the nature of the items sought and the experience of Potter, we are satisfied that the finding of probable cause was not erroneously based on stale information. 2.

The Good Faith Exception Alternatively, even if the warrant were not supported by probable cause, we are satisfied that the good faith exception applies here. At the hearing below, the State relied on United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405 , supra, to support its good faith claim. The State argued: [E]ven should you determine that the probable cause was stale[,] I would ask you to consider the matter of U.S. v[.] Leon, which is that 1984 Supreme Court decision which granted a good faith exception where it is demonstrated that an officer has an objectively reasonable belief as a matter of law that he has a facially valid search warrant. Again, that is a legal decision this court has to make.

In fact, you heard during the course of the testimony here today from ’Trooper Potter, that he has participated in perhaps twenty search warrants, some of which occurred years after the fact and that property was recovered. I would submit to the Court therefore that under the terms of Leon even if you should determine that there was no probable cause or that the probable cause was stale these officers, who I submit based upon what you’ve heard, what’s contained in the warrant, is a reasonably well trained officer. And he would know ... he would not have known ... he would not have known that this search was illegal because he had the magistrate’s authorization and it was a facially valid search warrant. ⁹⁸ There has been no testimony raised here today that any of the officers acting in their capacity when this search warrant was executed had in any manner misled the magistrate .... There is no evidence to suggest that the magistrate has wholly abandoned his judicial role in this proceeding.

And there’s no showing, [Y]our Honor, that this warrant ... was lacking, so lacking in probable cause that these officers would have had no objectively reasonable belief that they could utilize the power given to them by the search warrant to execute that search warrant. And further, [Y]our Honor, that warrant is not so facially deficient, in other words it identifies the place to be searched, it identifies the things to be seized that the officers knew what they were going to size or what place they were going to search and what place ... what items they were looking for when they executed that search warrant. So I would submit to the Court that under Leon ... that four prong test which is enunciated in that decision, should you find that the probable cause was stale, nevertheless renders a good faith exception to the execution of that warrant and it permits this Court to deny the motion to suppress.... Appellant never addressed the good faith exception at the suppression hearing.

Nor did the suppression court reach that issue. Nevertheless, because the issue of good faith was raised below and renewed on appeal, and the question is a legal one, we may consider it. See McDonald, 347 Md. at 470 n. 10, 701 A.2d 675 ; Coley, 145 Md.App. at 523 n. 14, 805 A.2d 1186 ; Braxton, 123 Md.App. at 631-32 , 720 A.2d 27 . In Connelly, supra, 322 Md. at 735 , 589 A.2d 958 , the Court recognized that because the “application of the good faith exception to the allegations of the affidavit presents an objectively ascertainable question, it is for the appellate court to decide whether the affidavit was sufficient to support the requisite belief that the warrant was valid.” When the record does not contain a finding as to the good faith question, ⁹⁹ however, “we are confined to the language of the affidavit in reviewing the applicability of the good faith exception.” State v. Darden, 93 Md.App. 373, 397 , 612 A.2d 339 , cert. denied, 328 Md. 447 , 614 A.2d 974 , and cert. denied, 508 U.S. 957 , 113 S.Ct. 2459 , 124 L.Ed.2d 673 (1993).

Appellant contends that the good faith exception does not apply, because “no reasonably well trained officer should have relied on this warrant.” He asserts: “This is not a case where the officers had personal knowledge sufficient for probable cause but inadvertently failed to specify any date of the claimed criminal activity.” Further, Behrel argues: At the suppression hearing, Trooper Potter admitted that he had no direct evidence from any source that there was anything in Mr. Behrel’s residence in 2001 that would supply evidence of the offenses fifteen to twenty years earlier. No one had gone in his residence to claim that any evidence was inside. The affidavit failed to mention any surveillance of the Behrel residence nor does it appear that any was done. All that existed was Trooper Potter’s belief that if Behrel was a sexual offender, he might keep memen-toes.

The request to search for computers and computer hardware (when neither Curtis nor Miller nor anyone else indicated that Behrel even owned a computer) is indicative that the search request was based on hunches rather than probable cause. The Supreme Court promulgated the good faith exception in United States v. Leon, supra, 468 U.S. 897 , 104 S.Ct. 3405 , and the companion case, Massachusetts v. Sheppard, 468 U.S. 981 , 104 S.Ct. 3424 , 82 L.Ed.2d 737 (1984). Notwithstanding the importance of the exclusionary rule to Fourth Amendment jurisprudence, the Supreme Court determined in Leon, 468 U.S. at 918 , 104 S.Ct. 3405 , that “suppression of evidence obtained pursuant to a warrant should be ordered only on a case-by-case basis and only in those unusual cases in which exclusion will further the purposes of the exclusionary rule.” Moreover, in Sheppard, 468 U.S. at 989-90 , 104 S.Ct. 3424 , the Supreme Court “refuse[d] to rule that ¹⁰⁰ an officer is required to disbelieve a judge who has just advised him ... that the warrant he possesses authorizes him to conduct the search he has requested.” Thus, the cases provide for the admissibility of “evidence seized under a warrant subsequently determined to be invalid ... if the executing officers acted in objective good faith with reasonable reliance on the warrant.” McDonald, 347 Md. at 467 , 701 A.2d 675 ; see Nero v. State, 144 Md.App. 333, 351-52 , 798 A.2d 5 (2002). 6 As we explained in State v. Riley, supra, 147 Md.App. at 130 , 807 A.2d 797 , “ ‘[e]ven when the warrant is bad, the mere exercise of having obtained it will salvage all but the rarest and most outrageous of warranted searches.’ ” (Citation and emphasis omitted). See Ashford v. State, 147 Md.App. 1, 23 , 807 A.2d 732 , cert. denied, 372 Md. 430 , 813 A.2d 257 (2002).

Nevertheless, Leon made clear that there are circumstances when exclusion of evidence remains the appropriate sanction, even if an officer “has obtained a warrant and abided by its terms.” Leon, 468 U.S. at 922 , 104 S.Ct. 3405 . This is because “the officer’s reliance on the magistrate’s probable-cause determination ... must be objectively reasonable, and it is clear that in some circumstances the officer [ ] will have no reasonable grounds for believing that the warrant was properly issued.” Id. at 922-23, 104 S.Ct. 3405 (citations and footnotes omitted). See Malley v. Briggs, 475 U.S. 335, 341 , 106 S.Ct. 1092 , 89 L.Ed.2d 271 (1986) (stating that police officers “will not be immune if, on an objective basis, it is obvious that no reasonably competent officer would have concluded that a[n arrest] warrant should issue; but if officers of reasonable competence could disagree on this issue, immunity should be ¹⁰¹ recognized.”); Minor v. State, 334 Md. 707, 715 , 641 A.2d 214 (1994) stating that “the question is whether a reasonably well-trained officer would have known ‘that his affidavit failed to establish probable cause----’”; officer has a duty “to withhold from presentation [sic] an application for a warrant that a well-trained officer would know failed to establish probable cause.” (citation omitted). The Leon Court recognized four situations that justify the sanction of exclusion.

They include: (1) if the magistrate, in issuing a warrant, “was misled by information in an affidavit that the affiant knew was false or would have known was false except for a reckless disregard of the truth,” or (2) “in cases where the issuing magistrate wholly abandoned his judicial role ... [so that] no reasonably well trained officer should rely on the warrant^]” or (3) in cases in which an officer would not “manifest objective good faith in relying on a warrant based on an affidavit ‘so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable^]’ ” or (4) in cases where “a warrant may be so facially deficient—ie., in failing to particularize the place to be searched or the things to be seized—that the executing officers cannot reasonably presume [the warrant] to be valid.” McDonald, 347 Md. at 468-469 , 701 A.2d 675 (citing Leon, 468 U.S. at 923 , 104 S.Ct. 3405 ). Accordingly, despite judicial “authorization” to search, good faith does not apply if a “reasonably well trained officer would have known that the search was illegal.... ” Leon, 468 U.S. at 922 n. 23, 104 S.Ct. 3405 ; see United States v. Hale, 784 F.2d 1465, 1470 (9th Cir.) (recognizing that a reasonably well-trained officer is required to know “well-established current law.”), cert. denied,, 479 U.S. 829 , 107 S.Ct. 110 , 93 L.Ed.2d 59 (1986); United States v. Savoca, 761 F.2d 292, 297 (6th Cir.) (noting that a reasonably well-trained officer is aware of relevant court decisions), cert. denied, 474 U.S. 852 , 106 S.Ct. 153 , 88 L.Ed.2d 126 (1985); Lamb v. State, 141 Md.App. 610, 631 , 786 A.2d 783 (2001) (stating that “ ‘good ¹⁰² faith’ is to be measured by an objective standard by which an officer is charged -with the knowledge of the law ... ”). In this case, even if the affidavit did not establish probable cause, we would agree with the State that a reasonably well-trained officer would have believed that “the evidence sought would likely be found at Behrel’s residence in Illinois.” We explain. In challenging the applicability of the good faith exception, appellant relies on Potter’s admission “that he had no direct evidence from any source that there was anything in Mr. Behrel’s residence in 2001 that would supply evidence of the offenses fifteen to twenty years earlier.” Given that testimony, appellant maintains that no reasonably well-trained officer could have reasonably believed that there was probable cause for the warrant, as “[a]ll that existed was Trooper Potter’s belief that if Behrel was a sexual offender, he might keep mementoes.” In his long career with the Maryland State Police, Potter received extensive training about sexual offenses, and was involved in the investigation of over 300 such cases.

The affiant averred that Potter “learned through his training that sexual offenders tend to keep mementoes of prior acts along with''pictures and videos.” Moreover, Curtis and Miller both told Potter that appellant kept pornographic movies, magazines, photographs, and sexual aids in a footlocker that he used as a coffee table. In our view, it was reasonable for Potter to believe that, even if appellant moved out of state, he might have taken the footlocker with him, because it was not perishable; it would not have been difficult to transport; and it would not lose its utility. Accordingly, we are satisfied that a reasonably well-trained officer would not have known that the affidavit failed to establish probable cause to search for the footlocker and pornographic materials stored in it. Therefore, we conclude that, even if the affidavit was not based on probable cause, the good faith exception applies here. ¹⁰³ II.

THE TRIALS A. THE CURTIS TRIAL 7 1. Factual Summary Curtis was born on November 27, 1967; at the time of appellant’s trial in February 2002, Curtis was thirty-four years old. From the fall of 1982 until the spring of 1986, Curtis was a boarding student at SJS. During that time, appellant served as the School’s chaplain.

At trial, Curtis recalled that he was sent to SJS, in part, because he did not have a good relationship with his stepfather and was acting out in school. Curtis explained that he became involved in church activities at SJS because he “was kind of looking for something comforting in [his] life, and the church seemed to be ... willing to provide that for [him].” Through his involvement in church activities, Curtis had close contact with appellant. During his first year at SJS, Curtis became an acolyte, which is “a person [who] helps the priest run the service.... ” In his second year at SJS, Curtis was elevated to the position of sacristan, a select group of six or seven students who assisted the chaplain. Curtis described the role of the sacristan as follows: ... [I]n terms of function at Saint James, they would go lay out the robes, the different dressings for different religious holidays.

They put the chalice, the wafers, the wine, so on and so forth on the alter [sic] in preparation for the following day’s service, and they would also participate in the service by overseeing the acolytes during the service. According to Curtis, his relationship with appellant began to change in February 1983, when he was fifteen years old. Curtis recalled that one night, he and a group of students had ¹⁰⁴ been watching a movie in appellant’s campus apartment. Curtis remained after the other students left, “talking about the ... church and so on and so forth.” According to Curtis, while he and appellant were sitting together on the couch, watching television, appellant “slid his foot into my lap.” When Curtis did not resist, appellant used his hand to rub Curtis’s “crotch area.” The activity progressed to oral sex that night and, within a month and a half, to sodomy.

Curtis estimated that, over a two year period, continuing until “probably half way through [his] junior year” of high school, he was subjected to about twenty-five or thirty incidents of abuse. Then, Curtis stopped going to appellant’s apartment. During Curtis’s sexual encounters with appellant, Behrel showed him pornographic magazines and movies that he stored in a footlocker that functioned as a coffee table in the apartment. Appellant also' kept sexual aids in the trunk.

Curtis identified the footlocker or “trunk” recovered from appellant’s Illinois residence as the same one that appellant kept in his School apartment. The trunk was later introduced in evidence. Curtis acknowledged that he was very ashamed of what happened. Responding to the State’s inquiry as to why he “submitted” to appellant, Curtis said: [T]hat’s a good question.

I ..., I ask myself that probably twenty-five times a day. I’m really not sure, you know, at the base of me, but I feel like I was having trouble with my step father, my family relationships, and I think kids have a couple of ways of going at that time. They can either act out or kind of, you know, stay by themselves. I chose to stay by myself, and one of the other reasons my mother sent [me to] Saint James was to find some good role models.

You know, I wasn’t getting along with my step father. So I ..., I feel like I needed love so bad, I would have taken it any way that I could have gotten it at that time. You know, I just needed male companionship, the church, [appellant] showing an interest in me in what I did and, you know him wanting me to join the club, you know, the church, and so on and so forth. I just think I really needed somebody to help ¹⁰⁵ me along.

Plus I was, you know, I was a farm kid at Saint James, you know, which is a rather prestigious prep school, and I was pretty [much] not at home. You know, I was very nervous, very lonely. Curtis claimed that he never told anyone at SJS about the abuse. In 1998, however, after Curtis told his therapist what had happened, he reported the matter to law enforcement officials in Montana.

Shortly thereafter, Curtis began working with TFC Potter. In connection with that investigation, Curtis made a recorded telephone call to appellant in March 2000. Although Curtis knew Miller, he maintained that he and Miller were not friends. Defense counsel established, however, that Curtis and Miller both played on the School’s lacrosse and football teams, and Curtis identified himself and Miller in a team photograph in the 1984 School yearbook.

Curtis admitted that he was never physically forced to participate in sexual activity with appellant. Appellant’s counsel also established that Curtis performed oral sex and anal sex upon appellant, and invited appellant to his graduation party. Trooper First Class Charles Faith of the Maryland State Police testified that he arranged for Curtis to make a recorded telephone call to appellant on March 16, 2000. 8 The tape of the conversation was then played for the jury and admitted in evidence. The following portions of the conversation are of particular interest: [CURTIS]: Well, uh, you sodomized me.

You, uh, abused me. Do you remember that? [APPELLANT]: No. [CURTIS]: You don’t? [APPELLANT]: (Silence.) ¹⁰⁶ [CURTIS]: ... You spent two years abusing me at Saint James when I was fifteen years old. And I’m trying, you know, I’ve been having (sigh), been having lots of problems, Father Behrel, for this ...., its [sic] messed me up bad.

Been having lots of health problems, and ... I need some answers from you. [APPELLANT]: (Silence.) [CURTIS]: Why would you do that? Why did you do that? [APPELLANT]: I don’t ... I don’t know what you’re saying. [CURTIS]: You don’t know what I’m saying? [APPELLANT]: I’ve had ...

I’ve had my own problems, and ... through my life, and I’ve gone to, you know, testing and psychological things and all these sort of things to be where I am now, and I’ve lived ..., I’ve lived a good life, and my problems that I’ve had, um, you know, I’ve had to deal with. [CURTIS]: Well you need to deal with my problems too, Father Behrel, because, uh, you know, I’m really glad that ..., that you’ve taken care of your part of it, but, uh, you left a big wake, you know. I’m thirty years old, 9 and it’s fifteen years later, and uh, I haven’t been able to deal with it---- I need to find some kind of peace with this, you know.... I need to come to a conclusion that it wasn’t my fault, Father Behrel. You know, I’ve spent fifteen years believing that it was my fault, and that I was dirty and nasty. [APPELLANT]: Well, if you were fifteen, it couldn’t be your fault. [CURTIS]: WeU, it wasn’t. [APPELLANT]: And I mean to be fifteen and to blame yourself fifteen years later when you’re thirty, and it’s not your fault. ¹⁰⁷ [CURTIS]: Well ..., why would you do that?

How could you do that? How could you do that? [APPELLANT]: (Silence.) [CURTIS]: I mean you used me, Father Behrel. You were like my priest. You were my priest.

You brought me into the church. Remember confirmation classes? You know, all that stuff. You brought me into the church.

I can’t even go to church anymore because of this. [APPELLANT]: (Silence.) [CURTIS]: You know, how could you do thait to me? [APPELLANT]: (Silence.) [APPELLANT]: ... Well, I mean the thing is ... it’s certainly not your fault for bad things that happened to you ... especially when you’re that age and ... [CURTIS]: Well was it your fault?.... [APPELLANT]: Well I don’t know, but ..., I mean I was in a situation that I didn’t want to be in. [CURTIS]: How’s that? What situation was that? [APPELLANT]: Because I had to go out there to work, and I wanted to come back after a year and ..., and I couldn’t, and I just had to ..., I just had to wait. I had no one to relate to out there, um, no social life or anything, and I had to, you know, the kids in my apartment all the time, um, and that was, that was my life.

I didn’t have a social life, and I needed to be out of that situation. [CURTIS]: Well, obviously, you know, since [you] were taking advantage of ... kids there, you know. [APPELLANT]: Well I don’t know ..., I don’t know what you’re saying about that, but ... [CURTIS]: What do you mean you don’t know? You sodomized me, Father Behrel, for two years.... ¹⁰⁸ [APPELLANT]: Are, are you, are you because, because this is a thing now, are you looking, you know to make money from someone? [CURTIS]: No. I’m here, you know what? I’m like, my kidneys are failing from hypertension. Uh, you know, I’ve lived for fifteen years with this stuff.

I’m trying, you know, my life has been basically over since the end of that. You know, and I’m trying, I’m thirty years old, thirty-two years old, and I’m trying to move on with my life, and I can’t close this chapter of my life without speaking with you about it. It doesn’t work. I’ve been in therapy for two years, if, and I just came to the conclusion that I needed to, I needed to confront you about it.

I want my power back. You took it all away from me. Now I want it back, and I want some answers from you. I mean, Saint James, my mother sent me to Saint James to, uh, become a better person, you know, to have good male role models and this is what, you know, this is what I got.

I never graduated from college. I haven’t, I haven’t done anything in my life, and I, and I blame you for it. And I need to get passed [sic] this, and that’s why I’m calling you. I’m not looking to make anything from anybody.

(Pause) I mean doesn’t that make sense to you that, you know, I would, I would, uh, you know, be looking for a little closure in all this? I mean you’ve been through the therapy. [APPELLANT]: Well after fifteen years, yeah, I went to therapy too, um, and ..., and the Diocese insisted that I go through psychological testing and all sorts of things. I mean even ..., I even had ..., had, um, checks on past history from childhood up and I mean everything through this, you know. * * * [APPELLANT]: Well I know ... I’m not a very good priest....

I’m trying to be. Um, I don’t know what to say. I don’t know how to help. [CURTIS]: Well you can say you’re sorry for one. You know, you could just say you’re sorry.... ¹⁰⁹ [APPELLANT]: Well better ..., well better than sorry, I can ask your forgiveness....

I just wanted some companionship ... and some innocent love. Um, because like now, I mean ... I have friends that, you know, I count on to talk to, and ..., and you know, they show me love, um, when I’m down and things like that, and I hadn’t had any one [sic] like that. And it was just a bad part of my life----I didn’t want to go there.

I wanted to come back. After I was there a year and I finally got to go after five years, and ..., and that’s when after that ..., I mean I went to confession, uh, I went to counseling, and then because of all this being such a big thing in the 90’s, um, you know, the Diocese put us through these ..., these, um, these battery of tests ... (inaudible) .... in Chicago. I mean a whole week long and stuff and things like that.

I mean I was ..., I was a subject of ..., of the situation that I was in. [APPELLANT]: ... [A]nd as far as any sort of sexual activity or anything, I mean I haven’t done any of that stuff.... [CURTIS]: What do you mean you haven’t done any of that stuff, Father Behrel? ... [APPELLANT]: I’m talking about my life since ...; since I’ve been here. Um, you know, I mean I’m, you know, I’m fulfilled because I have ..., I have friends who care about me and love me and that sort of thing, which ..., which I didn’t have. * * * [CURTIS]: Well tell me it wasn’t my fault. You know, tell me that ..., that it was you and that you took advantage of me____(sigh) ..., you took advantage of me. [APPELLANT]: I know it wasn’t your fault. You shouldn’t blame yourself for this. [CURTIS]: How can I not?

You know, how can I not? You know ... you knew what my family life was like. You ¹¹⁰ knew that I wasn’t the strongest. I was some little farm boy off the farm, you know, and in the crowds with a bunch of rich people kinda of [sic] lost anyway,- and you took me under your wing and this is what you did to me.

(Pause) How could you do that? I mean are you ... tell me you’re still not doing it? [APPELLANT]: I told you I’ve been here fifteen years, and ... I’ve been celibate. [CURTIS]: Well that’s a load off my mind cause it scares me. [APPELLANT]: All I want to do..., all I wanted to do is ... well I don’t know that I can be of sense right now, but be a minister ... as best I can, and I mean I can ..., you know, I went through this counseling and everything, and I went to confession, but it’s ..., it’s not going to erase, but I can attempt, fifteen years. I mean I’ve lived a good life, a chaste life.

Hi Hi Hi [APPELLANT]: When ... I left [SJS], that’s when I decided that, you know, that maybe that ..., back when ----back when I thought this was ..., this was me, this was just my personality, um and I mean, you know, from counseling and stuff, I realize that because I wasn’t, you know, I was ...., I was always a good person before, you know, before, um, I mean, you know, when all this ..., and ..., and it was ..., it was that situation that I was in that was like being in prison, and ..., and I had no help with it or anything and.... On February 4, 2002, two days prior to the commencement of the Curtis trial, appellant filed a motion in limine to exclude Jeffrey Miller’s testimony on the ground that it constituted inadmissible “other crimes” evidence. Following an evidentiary hearing held during trial, the court denied the motion.

Accordingly, the State presented Miller’s testimony as to appellant’s sexual abuse of him. After several preliminary questions, the court gave the following limiting instruction to the jury: ¹¹¹ Counsel, let me interrupt at this time and instruct the jury. Ladies and gentlemen, the testimony that you may hear is being admitted for a limited purpose. You must not consider this testimony to prove that [appellant], to prove that if [appellant] committed a prior bad act or criminal act that he would be prone or have a propensity to commit another bad or similar act, or criminal act, or that the defendant is a bad person.

So you’re not to consider it for that purpose. The testimony is being offered, once again, for a limited purpose and that is the State is, I believe, attempting to prove that the defendant utilizes a particular method in committing acts of a similar nature. That is part of the case, or part of the issue that is presented in this case, and that is the only purpose for which this testimony is being admitted. You may proceed.

Miller testified that he entered SJS in the fall of 1981 for the tenth grade. During his first year, he and appellant lived in the same dormitory. Miller became an acolyte in his first year at the School, which brought him into contact with appellant. Then, in eleventh grade, appellant selected him to become senior sacristan, a position described by Miller as “the highest figure ... in the church as far as the student body goes.” As a result, he worked “in a closer fashion” with appellant.

In his junior year, Miller lived in a dormitory room directly next to appellant’s apartment. According to Miller, appellant counseled him regarding his parents’ divorce. Miller also testified that he and other students “regularly” visited appellant’s apartment. He identified the footlocker seized in the search of appellant’s residence as the “chest ... used as a coffee table in the living room” of appellant’s apartment at SJS.

Miller claimed that appellant kept pornographic materials in the footlocker, such as “explicit” magazines and movies, and “inhalants” and “other drug paraphernalia,” such as “ ‘rush’ or ‘poppers,’ ”