Collins v. State

EYLER, JAMES R., J. Adrian Frayne Collins, appellant, was convicted by a jury in the Circuit Court for Harford County of attempted second degree rape 1 (Count 5), two counts of third degree sexual offense 2 (Counts 2 and 6), and child abuse (Count 7). Subse ⁵⁸⁷ quently, after merging one of the third degree sexual offense convictions, the court sentenced appellant to twenty years’ imprisonment for the attempted second degree rape conviction, a concurrent term of fifteen years’ imprisonment for the child abuse conviction, and a ten-year suspended sentence for the remaining third degree sexual offense conviction. On appeal, appellant contends that (1) the court erred in admitting out-of-court statements by the victim because it violated his Sixth Amendment right to confront witnesses, (2) the court erred in admitting testimony regarding other crimes in violation of Rule 5-404(b), and (3) the evidence was legally insufficient to sustain the conviction for attempted second degree rape. With respect to the first issue, the objection in circuit court was on the ground of hearsay.

Subsequent to trial and conviction, the Supreme Court decided Crawford v. Washington, 541 U.S. 36 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004), and appellant now argues a violation of the Confrontation Clause. We hold that the first issue was not preserved for review because the only ground stated below was hearsay, and we decline to recognize plain error. Perceiving no error with respect to the second issue, and holding as to the third issue that the evidence was legally sufficient, we shall affirm the convictions. Factual Background We shall quote the relevant facts, as set forth in appellant’s brief, omitting citations to the record.

We will supplement the facts contained in appellant’s brief as necessary. Kelly Collins, the wife of appellant, testified that in September of 2002, she took her 8-year-old daughter, [K], to the hospital [ 3 ]. Ms. Collins explained that she took her daughter to the hospital because she “noticed [K] was very red in her vaginal area.” According to Ms. Collins, this discovery ⁵⁸⁸ “brought back everything that [she] had forgotten about and [she] decided it was time to turn [appellant] in for molesting [her] daughter.” Ms. Collins explained that what she had “forgotten about” was that she had caught appellant allegedly molesting [K][sic] on two prior occasions. According to Ms. Collins, nearly two years earlier she witnessed [K] “bent over the kitchen chair with her pants down----[Appellant] was behind her with his penis out between her legs.” 4 Nearly a year after the incident in the kitchen, according to Ms. Collins, she observed appellant and [K] on the couch. [ 5 ] Ms. Collins explained that [K] “had her pants pulled down,” and appellant “was in the process of pulling his shorts down.” Ms. Collins testified that she did not report these incidents because she felt threatened by appellant.

Ms. Susan Holian, a sexual forensic examiner (SAFE) nurse, testified that she examined [K] on October 1, 2002. Ms. Holian reported redness of the “external and internal genitalia,” and explained that “by internal, that’s the area right before the vaginal hole.” Ms. Holian further reported that [K]’s hymen was intact, indicating a lack of vaginal penetration. Ms. Penny Boccelli, a social worker for the Harford County Department of Social Services, testified that she interviewed [K] on October 3, 2002. Ms. Boccelli testified that the interview was conducted at the Child Advocacy Center in the presence of a police detective and was recorded on videotape.

Ms. Boccelli explained that a copy of the videotape was made for the police detective as “part of their ⁵⁸⁹ criminal evidence.” The videotape of Ms. Boccelli’s interview with [K] was entered, into evidence and played for the jury. During the interview, [K] explained that appellant touched her “pee-pee.” She told Ms. Boccelli that he put his “pee-pee” on her “pee-pee.” [K] further told Ms. Boccelli that this type of contact occurred on two prior occasions. Once in the kitchen, and once on the couch. Mr. James Hanna, appellant’s step-father, also testified for the State.

He testified that on September 30, 2002, he received a phone call from Ms. Collins, who told him she was taking [K] to the hospital. Mr. Hanna testified that as a result of that phone call, he went to the home of appellant and Ms. Collins. He explained that when he arrived, he witnessed appellant and Ms. Collins arguing, and heard appellant say “that nothing had happened that weekénd, it was all in the past, there was no penetration.” ' Appellant testified on his own behalf, and expressly denied ever having “any sort of sexual activity” with [K], Moreover, Dr. Kent Hymel, a pediatric physician and expert in sexual child abuse examination, testified that “redness and tenderness are completely non-specific findings.” Dr. Hymel stated that such findings “cannot or should not be specifically related to sexual assault, because there are multiple other even more common explanations for redness and tenderness.” Dr. Hymel explained that such symptoms may, for example, be the result of “simple skin irritation.” On January 5, 2004, after jury selection but prior to opening statements, the court interviewed [K] in chambers. Subsequently, the court heard arguments in regard to the State’s motion to introduce the videotaped interview between [K] and Ms. Boccelli, pursuant to Md.Code (2001), § 11-304 of the Criminal Procedure Article.

The following colloquy pertinent to this appeal ensued. THE STATE: Your Honor, the State is making a motion to have the videotaped testimony — or the videotaped interview of the victim in this case, I K], introduced into trial and to be produced in lieu of live testimony. We’ve had the child interviewed in chambers by Your Honor, and I’ve talked ⁵⁹⁰ with defense counsel, and the precedent under 11-304 ... is that an out-of-court statement may be admissible if made to a person who is acting lawfully in the course of her profession and is a licensed social worker, and Miss [Boccelli] is so, and I have talked to defense counsel and he has stated he would stipulate to the fact that she was acting lawfully in her profession and was licensed at the time, but if need be, for the court’s purposes, I can put her on the stand. APPELLANT’S COUNSEL [ 6 ]: I would stipulate to that, Your Honor, and that she is currently a licensed social worker as well.

THE COURT: All right, so what you’re doing, then, is offering this video as an out-of-court statement of a child victim, right? THE STATE: Yes, Your Honor. * * * THE COURT: And the child in this case is not going to testify; is that correct? THE STATE: Not if she doesn’t have to. Well, no, Your Honor. * * * THE COURT: And we’re here for the purpose of a hearing to make a determination as to particularized guarantees of trustworthiness [pursuant to § 11 — 304(e)]; is that correct?

THE STATE: That is true, Your Honor. APPELLANT’S COUNSEL: That’s correct, Your Honor, and under (f), Your Honor will need to make a finding on the record as to the specific guarantees of trustworthiness that are in the statement and determine the admissibility of the statement. Subsequently, the videotaped interview was played for the court. Both before and after the videotape was played, appellant’s counsel argued that the videotape did not meet the “particularized guarantees of trustworthiness” requirements ⁵⁹¹ of section ll-304(e), focusing predominantly on (e)(xii), which mandates that the court consider “whether the statement was suggested by the use of leading questions.” At no time did appellant object to the videotape on the grounds that it violated his right to confrontation under the Sixth Amendment to the United States Constitution and Article 21 of the Maryland Declaration of Rights. 7 On January 6, 2004, the court ruled on the State’s motion.

In so doing, it stated the following with regard to section 11-304(e). Subsection (c) requires that the out-of-court statement is admissible only if it’s made to and offered by a person acting lawfully in the course of that person’s profession, and one of the professions listed would be a licensed social worker, and that in fact is the case here. It’s also a videotape being made through the licensed social worker, but it is in fact a video presentation. The court also must find that there are particularized guarantees of trustworthiness pursuant to subsection (e).

Keeping in mind that the issue of trustworthiness of the statement and the degree of probative value are two different items, in this particular instance I’m looking at this only to see if I believe that the child’s statement has some indication of, or guarantees of, trustworthiness, and subsection (2) of subsection (e) sets out the various factors which the court must examine. * * * “Whether the statement was spontaneous or directly responsive to questions.” Well, in this particular case the statement was almost entirely made pursuant to and responsive to questions asked by the social worker. ¡Is ^ ^ ⁵⁹² The next factor involves the use of leading questions, and there were some leading questions obviously used in the garnering of information during the course of the video statement. The questions that were asked appeared to me to really be more in preparing the witness to answer other more important questions that were not leading. Again, given the entirety of the statement, I do not feel that the questioning or manner of questioning was such as to preclude the trustworthiness of what was said. * * * So given all of that, I’m going to admit the videotape.... During trial, Ms. Boccelli testified she was a licensed social worker employed by the Harford County Department of Social Services and assigned to the Harford County Child Advocacy Center (the “Center”).

Ms. Boccelli’s role at the Center was to investigate allegations of child sexual abuse. On October 1, 2002, 8 Ms. Boccelli was assigned to investigate the allegations of [K]’s abuse. On October 3, Ms. Boccelli met [K] at the Center to conduct an interview. Ms. Boccelli stated that interviews of this type were “frequently” videotaped and “generally a detective is involved in the investigation.” Ms. Boccelli identified the videotape of the interview between herself and [K].

Following Ms. Boccelli’s testimony on direct, appellant’s counsel renewed his objection to the playing of the videotaped out-of-court statement of [K] “for all the reasons stated previously,” which was denied, and at that time the videotape was played for the jury. At the close of the State’s case, appellant moved for judgment of acquittal as to all counts. After hearing arguments, the court granted appellant’s motion with regard to Counts 1 and 3, stating that “the mere fact that [Ms. Collins] sees him ⁵⁹³ standing there does not create penetration. The mere fact he’s standing before her with his penis out does not give rise to penetration.

Second degree rape requires penetration. Attempted second degree rape requires some indication that there is more than just standing there.” The court, however, refused to grant appellant’s motion with regard to Count 5 because “[t]he evidence of that [penetration] is the testimony of the SAFE nurse that the interior labia were in fact red.” During direct examination of Ms. Collins, the State asked her to “describe [her] relationship with [appellant].” Appellant’s counsel objected, arguing that, should Ms. Collins testify that the relationship was violent, her testimony would be irrelevant and prejudicial evidence of “other crimes.” The court agreed to hear the testimony of Ms. Collins outside the presence of the jury before deciding on admissibility. The following then occurred. THE STATE: I guess we’ll go back to my original question.

Describe your relationship with the defendant. MS. COLLINS: It was not good, it was very violent. THE STATE: Can you tell us what it was like in your home?

MS. COLLINS: It was like walking on egg shells, I couldn’t do anything without him getting upset. THE STATE: Were you frightened of [appellant]? MS.

COLLINS: He would punch holes in-he punched a hole, a large hole, in my daughter’s bedroom door, and that was there and we both were afraid. THE STATE: Which daughter are you speaking of? MS. COLLINS: [K], the oldest daughter.

THE STATE: Okay.... At this point I guess I’ll raise— Well, Your Honor, I do have photographs, I actually have photographs of that hole in that door. THE COURT: All right. THE STATE: I’d be seeking to introduce these as well, and I guess it’s still under the same auspices.

THE COURT: Yes, it’s the same process. ⁵⁹⁴ THE STATE: Are these photographs of that door? MS. COLLINS: Yes, it is. THE STATE: Do you recognize these as photographs of the hole in the door?

MS. COLLINS: Yes, I do. THE STATE: And are they true and accurate reflections of what the door looked like? MS.

COLLINS: Yes. THE STATE: I won’t admit them at this time, Your Honor, but that’s where I’m going, and that’s basically the testimony, Your Honor, I would elicit from the witness. THE COURT: [Appellant’s counsel], do you have any questions? APPELLANT’S COUNSEL: Well, I’m still confused as to the relevance of it and I still don’t know quite where we’re going with this.

She has given a description that he is very violent, but I don’t know what that means and I don’t know how it relates time-wise to the things that we are testifying about. The same thing with the holes in the door. Again, I don’t know where that comes in terms of time to any of the alleged instances, and we have three fairly specific-well, it is prejudicial and not very probative regarding the issue of her not reporting. We seem to have two holes in a door, I gather coming from one burst of temper, which is being offered to explain the failure to report sexual abuse over a period lasting up to about two-and-a-half years, so I don’t think that it’s probative.

THE COURT: I think the court would disagree with you on that. What this is is evidence that sort of falls within the Merzbacher [ 9 ] case, and that would be that the defendant engaged in a pattern of conduct, at least in this witness’s mind, that was such that it intimidated her, and it’s being offered as her basis for not reporting the prior alleged sexual acts. I think it certainly is relevant, it was part of your opening statement, and it’s an obvious question for the ⁵⁹⁵ jury as to why this was not reported previously. This is being offered as the reason why, and I think the probative value outweighs any unfair prejudice.

Immediately after this colloquy and the court’s ruling, the jury returned to the courtroom and the following occurred. THE STATE: Please describe your relationship with the defendant for the jury. MS. COLLINS: It was like walking on egg shells.

Every time I would defend myself, he would hit me. APPELLANT’S COUNSEL: Objection. Ask to approach. THE COURT: Approach.

APPELLANT’S COUNSEL: We didn’t stay on track very long, did we? THE COURT: Well, it’s somewhat different, but— APPELLANT’S COUNSEL: Your honor, it’s not somewhat different from the proffer, it’s hugely different from the proffer, and we’re now clearly into other crimes as well as other bad acts evidence. THE COURT: Merzbacher says a pattern of conduct giving a basis for failure to report is admissible, and I’m not going to grant your motion to disqualify that statement or this witness based on the prior testimony. I’ve given [the State] an opportunity to establish what was implicit in the first proffer, that there was a pattern, and if she does that I’m going to overrule your objection.

Well, I’m going to overrule it at this time anyway, and you’ll have a continuing objection as to that. THE COURT: Let me see what happens here with respect to this particular witness and we’ll go from there, but I believe from what I heard even the first time that there is in fact a pattern, and that’s one of the reasons why I’m overruling your objection. It’s pretty obvious she’s not the most articulate witness that’s ever been on the witness stand, so we’ll see what happens. ⁵⁹⁶ Thereafter, Ms. Collins testified as to the prior sexual assaults on [K] by appellant. She also testified as to the photographs of the hole in the door.

She explained that she did not tell anyone about the incidents because appellant threatened her and told her that he would hurt her and [K]. Questions Presented As phrased by appellant: 1. Did the trial court err when it admitted into evidence, (1) the testimony of a social worker regarding out-of-court statements made by the victim during an interview between the social worker and the victim in the presence of a police detective; and (2) the videotape recording of that interview? 2. Did the trial court err by admitting testimony regarding other crimes in violation of Maryland Rule 5-404(b)? 8.

Did the State present sufficient evidence to sustain a conviction of attempted second degree rape? Parties’ Contentions Appellant contends that Ms. Boccelli’s testimony regarding out-of-court statements made by [K] and the videotaped interview of [K] were inadmissible and violated his constitutional right to confront the witnesses against him. In support of this contention, appellant argues that the Supreme Court’s recent decision in Crawford , and Maryland’s subsequent decision in State v. Snowden, 385 Md. 64 , 867 A.2d 314 (2005), mandate that testimonial statements may not be offered into evidence in a criminal trial unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant. Appellant argues that [K]’s statements to Ms. Boccelli were testimonial in nature because [K] spoke to Ms. Boccelli while Ms. Boccelli was acting in the capacity of a child abuse investigator for the county, and because [K] made the statements both to Ms. Boccelli and the police detective who was present during the interview.

Furthermore, appellant contends that there was no indication that [K] was unavailable to ⁵⁹⁷ testify, and there was no indication that appellant had a prior opportunity to cross-examine her. Appellant urges us to address this issue on constitutional grounds, “notwithstanding defense counsel’s failure to specifically object” to the admission of [K]’s out-of-court statements, because the law changed dramatically between the time of trial and the time of this. Thus, appellant suggests that we should take cognizance of the plain error. Appellant’s second contention is that the trial court erred by allowing Ms. Collins to describe her relationship with appellant.

In support of this contention, appellant argues that Ms. Collins’s testimony, outside of the presence of the jury, was that appellant punched a hole in a door. The testimony elicited from Ms. Collins in front of the jury, however, consisted of “other crimes” evidence pursuant to Maryland Rule 5-404(b), because the admitted testimony was of appellant’s criminal acts of assaulting Ms. Collins on several occasions. Appellant argues that such evidence was highly prejudicial and inadmissible. Finally, appellant contends that the evidence was insufficient to support a conviction for attempted second degree rape.

Appellant argues that the evidence did not prove that appellant intended to have vaginal intercourse with [K] and that he took a substantial step to act on that intention as is required for an attempt. The State argues that this Court should decline to address appellant’s complaint that his constitutional rights to confrontation were violated by the admission of [K]’s out-of-court statements to Ms. Boccelli because appellant did not object to the videotape or to Ms. Boccelli’s testimony relating to the videotape on confrontation grounds. Rather, the State contends, appellant objected only on the ground that the requirements of section 11-304 for establishing trustworthiness were not satisfied. As to the second issue, the State contends that the evidence of appellant’s physical abuse was not offered to prove appellant’s guilt, but rather to explain why Ms. Collins waited to ⁵⁹⁸ report the prior incidents of sexual abuse.

According to the State, under Merzbacher v. State, 346 Md. 391 , 697 A.2d 432 (1997), this type of evidence may be admitted because it was substantially relevant to a contested issue in the case and was relevant to the setting in which the alleged sexual misconduct took place. Finally, the State contends that the evidence was sufficient to persuade any rational trier of fact that appellant was guilty of attempted second degree rape. In support of this contention, the State argues that Ms. Holian’s testimony, combined with the other circumstantial evidence of appellant’ prior sexual abuse of [K], was sufficient for a jury to find the elements of attempt. Discussion 1.

Testimony of Ms. Boccelli and admission of videotaped statement of [K] At the outset, in light of the wording used by appellant to describe his first contention, which could be read to suggest that Ms. Boccelli testified to the substance of [K]’s out-of-court statements, we wish to clarify the evidence that is the subject of the challenge. Pursuant to section ll-304(c)(4), as noted by the court, Ms. Boccelli testified only that the out-of-court statements were made to her, and she was offering the videotape as a person acting lawfully in the course of her profession as a social worker. In other words, contrary to the implication that the out-of-court statements came in through the testimony of Ms. Boccelli, they did not. Rather, the out-of-court statement came in through the the videotape.

Turning to the issue, we agree with the State that appellant’s first argument was not preserved for our review, and we decline to recognize plain error. We shall explain. A. The Confrontation Clause and “Tender Years” Statute The Sixth Amendment of the United States Constitu ⁵⁹⁹ tion and Article 21 of the Maryland Declaration of Rights 10 provide that, in a criminal prosecution, the accused has the right to be confronted with the witnesses against him. This guarantee becomes particularly relevant when hearsay declarations are proffered.

In Ohio v. Roberts, 448 U.S. 56 , 100 S.Ct. 2531 , 65 L.Ed.2d 597 (1980), the Supreme Court determined that, when a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears adequate “indicia of reliability.” Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness. Id. at 56 , 100 S.Ct. 2531 (emphasis added).

Thus, Roberts stood for the proposition that certain out-of-court declarations, i.e., where the evidence did not fall into a “firmly rooted hearsay exception,” could be admitted into evidence when there was both a showing that the witness was unavailable and a showing of particularized guarantees of trustworthiness. Following Roberts , Maryland enacted its “tender years” statute, first codified at Md.Code (1973, Repl.Vol.1989), § 9-103.1 of the Courts & Judicial Proceedings Article, which provided for the admissibility of certain out-of-court statements that would otherwise be inadmissible hearsay. The legislation was enacted in response to concerns that child abuse and sexual offenses were not being prosecuted adequately due to many child victims’ inability to testify as a result of their young age or fragile emotional state. Snowden, 385 Md. at 76 , 867 A.2d 314 .

Under this “tender years” exception, a court could admit into evidence in a juvenile proceeding or criminal trial hearsay statements by victims of child abuse if the statements were made to certain health or ⁶⁰⁰ social work professionals in the course of their professions, and either the child was available, subject to cross-examination, and testified at the criminal proceeding or by closed circuit television, or was unavailable due to death, absence from the jurisdiction, serious physical disability, or inability to communicate due to severe emotional distress. Md.Code (1973, 1989 Repl.Vol.), § 9-103.1(c) of the Courts & Judicial Proceedings Article. The Supreme Court relaxed the constitutional requirement that the declarant be unavailable in White v. Illinois, 502 U.S. 346, 354-57 , 112 S.Ct. 736 , 116 L.Ed.2d 848 (1992). In 1994, the legislature amended the statute so that it could be utilized regardless of whether the child was available to testify.

Snowden, 385 Md. at 78 , 867 A.2d 314 (citations omitted). To satisfy the constitutional requirements of Roberts , however, the legislature “imposed safeguards in the tender years statute intended to insure that any admitted statement possessed ‘particularized guarantees of trustworthiness.’ ” Id.; see Md. Code (2001), § ll-304(e) of the Criminal Procedure Article. Particularly, when a child victim does not testify, the out-of-court statement will only be admissible when there is corroborative evidence that the defendant had the opportunity to commit the alleged crime, and thirteen other enumerated factors relating to trustworthiness are met. 11 ⁶⁰¹ On March 8, 2004, seven days after appellant’s sentencing hearing, the Supreme Court “fundamentally altered its Confrontation Clause jurisprudence when it decided Crawford .... 12 ” Id. at 78 , 867 A.2d 314 (citations omitted). In Crawford, the Court rejected the Roberts test for admissibility because it found the test “fundamentally incompatible with the Framers’ vision and interpretation of the [Confrontation] Clause.” Id.

(citing, Crawford, 541 U.S. at 68 , 124 S.Ct. 1354 ). The Court instead held that the Confrontation Clause mandates that testimonial statements may not be offered into evidence in a criminal trial unless (1) the declarant/witness is unavailable, and (2) the defendant had a prior opportunity to cross-examine the declarant/witness. Id. In Snowden , the Court of Appeals applied the Supreme Court’s holding in Crawford , to statements made by child sexual abuse victims to a social worker, admitted into