Cousar v. State

⁴⁹³ WATTS, J. After a trial held from November 18, 2009 through November 20, 2009, a jury in the Circuit Court for Charles County convicted Kelvin Cousar, appellant, of unnatural or perverted sexual practices, third degree sexual offense, reckless endangerment, and wearing, carrying, or transporting a handgun. See Md.Code Ann., Crim. Law (“C.L.”) § 3-322 (unnatural or perverted sexual practice); C.L. § 3-307(a)(l) (third degree sexual offense); C.L. § 3-204(a)(1) (reckless endangerment); and C.L. § 4-203 (wearing, carrying, or transporting a handgun). 1 Subsequently, on January 25, 2010, the court sentenced appellant to three years of imprisonment for wearing, carrying, or transporting a handgun, a consecutive five years for reckless endangerment, and a consecutive ten years for third degree sex offense, for a total of eighteen years of imprisonment. 2 On appeal, appellant presents two issues, which we have rephrased as follows: 3 I. Whether the trial court erred in admitting, over appellant’s objection, the testimony of an alleged rape victim from an unrelated pending case?

II

Whether the trial court erred in instructing the jury as to reckless endangerment by allegedly omitting the elements of the offense? ⁴⁹⁴ We find no error and affirm the judgments of conviction, for the reasons set forth below. BACKGROUND The acts for which appellant was convicted occurred on April 12, 2009, during a meeting between appellant and a Ms. Stahl (“Stahl”) at the Master Suites hotel in Waldorf, Maryland. Stahl offered erotic services on the online advertising site known as Craigslist. Appellant made inquiries for sexual services through Craigslist, and identified Stahl as someone he wanted to contact.

Appellant and Stahl agreed, in advance, via telephone, to meet at the hotel. Stahl arrived first at the hotel and invited appellant into the room. According to Stahl’s testimony, once inside, she completed the agreed-upon activity of “stripping and grinding” in exchange for payment of $200.00. Appellant then produced a gun and forced Stahl to undress and lay on the bed while he straddled her and defecated in her mouth.

Appellant also forced Stahl to engage in oral and anal sex while holding the gun to her head. Stahl testified, at trial, that she did not consent to being defecated on or to the oral and anal sexual activity. Detective Jack Austin, Charles County Sheriffs Department, a witness for the State, testified that, on May 1, 2009, he arrested appellant. Austin testified appellant told him the sexual activity with Stahl was consensual, and that appellant acknowledged defecating on Stahl, but said the defecating was “accidental.” The State introduced the testimony of Ms. Swanson (“Swanson”).

Swanson is the alleged victim in an unrelated case that was pending against appellant in the Circuit Court for Prince George’s County. Swanson testified that she met appellant at her apartment on February 20, 2009, less than two months prior to appellant’s encounter with Stahl. Swanson testified that her meeting was also generated by Craigslist, where she advertised erotic services. Swanson testified that, while inside her apartment, after a disagreement about payment, appellant produced a gun, told Swanson to undress and instructed her to ⁴⁹⁵ perform anilingus. 4 Swanson testified appellant defecated in her mouth while she was performing anilingus.

Swanson testified that appellant forced her, with the results of the defecation still in her mouth, to perform oral sex. Swanson testified that she did not consent to being defecated upon. Prior to Swanson taking the stand, appellant moved in limine to exclude Swanson’s testimony, arguing that the testimony constituted inadmissible propensity evidence. Appellant argued the prejudicial effect of Swanson’s testimony outweighed the probative value.

The circuit court determined Swanson’s testimony to be admissible to show intent 5 or under the absence of mistake exception of Maryland Rule 5-404(b), as argued by the State. Appellant testified that the sexual activity with Stahl was consensual, and that the defecation was not for sexual gratification. At the conclusion of all of the evidence in the case, and prior to closing argument, the court instructed the jury. As to reckless endangerment, the court instructed: “A person may not recklessly engage in conduct that creates a substantial risk of death or serious physical injury to another.” Prior to instructing the jury, the trial judge gave each attorney a copy of the jury instructions he intended to utilize, in order for the attorneys to “follow along” as the court instructed the jury.

At the conclusion of giving the jury instructions, the trial judge asked both counsel, on three separate occasions, whether they were satisfied with the given instructions. Neither attorney made any exception or objection to the court’s instruction as to reckless endangerment. ⁴⁹⁶ DISCUSSION I. Appellant contends the circuit court erred in admitting Swanson’s testimony that he defecated on her for three reasons: (1) Other crimes evidence is inadmissible to prove character of a person in order to show conduct in conformity therewith; (2) The testimony was used only to buttress the testimony of the complaining witness; and (3) Swanson’s testimony was not relevant and was used to show criminal propensity. The State acknowledges that evidence of a defendant having committed similar acts may not be introduced to prove a propensity to commit the acts in question, but asserts that, under Maryland Rule 5-404(b), such evidence may, however, be introduced to prove conduct other than propensity. The State points out that Maryland Rule 5 — 404(b) offers a non-exhaustive list of things that may be proven with evidence of prior acts, including “absence of mistake or accident,” and contends that such evidence was appropriately admitted, in this case, to refute appellant’s claim of mistake or accident.

Maryland Rule 5-404(b) generally renders inadmissible evidence of other crimes, wrongs, or bad acts. Thompson v. State, 412 Md. 497, 521-22 , 988 A.2d 1011 (2010). Rule 5-404(b), providing that evidence of other crimes, wrongs or bad acts is ordinarily inadmissible, “embodies the Maryland common law of evidence concerning other crimes, etc. which existed prior to adoption of the Rule.” Boyd v. State, 399 Md. 457, 482 , 924 A.2d 1112 (2007) (citing Streater v. State, 352 Md. 800, 806 , 724 A.2d 111 (1999); Merzbacher v. State, 346 Md. 391, 406 , 697 A.2d 432 (1997)). As Maryland Rule 5-404 explicitly recognizes, however, there are circumstances under which prior criminal or wrongful acts are admissible.

Case law sets forth a three-pronged test for admissibility: When a trial court is faced with the need to decide whether to admit evidence of another crime — that is, evi ⁴⁹⁷ dence that relates to an offense separate from that for which the defendant is presently on trial — it first determines whether the evidence fits within one or more of the [Cross ] exceptions. That is a legal determination and does not involve any exercise of discretion. See Cross [v. State ], 282 Md. [468,] at 474, 386 A.2d [757,] at 761 [ (1987) ]; Moore v. State, 73 Md.App. 36, 44 , 533 A.2d 1, 5 (1987), cert. denied, 311 Md. 719 , 537 A.2d 273 (1988). If one or more of the exceptions applies, the next step is to decide whether the accused’s involvement in the other crimes is established by clear and convincing evidence.

Lodowski v. State, 302 Md. 691, 728 , 490 A.2d 1228, 1247 (1985), defendant’s petition for cert. denied, 475 U.S. 1086 , 106 S.Ct. 1469 , 89 L.Ed.2d 725 , vacated, 475 U.S. 1078 , 106 S.Ct. 1452 , 89 L.Ed.2d 711 , rev’d on other grounds, 307 Md. 233 , 513 A.2d 299 (1986); Cross, 282 Md. at 478, 386 A.2d at 764. We will review this decision to determine whether the evidence was sufficient to support the trial judge’s finding. If this requirement is met, the trial court proceeds to the final step. The necessity for and probative value of the “other crimes” evidence is to be carefully weighed against any undue prejudice likely to result from its admission.

Cross, 282 Md. at 474, 386 A.2d at 761 [citations omitted]. This segment of the analysis implicates the exercise of the trial court’s discretion. Id.; Moore, 73 Md.App. at 44-45 , 533 A.2d at 5 . State v. Faulkner, 314 Md. 630, 634-35 , 552 A.2d 896 (1989). 6 As a threshold matter, in determining whether to admit evidence under Maryland Rule 5-404(b), a court must ⁴⁹⁸ evaluate whether evidence is introduced for some purpose other than to suggest that, because the defendant is a person of criminal character, it is more probable that he committed the crime for which he is on trial.

Boyd, 399 Md. at 483 , 924 A.2d 1112 . The evidence must fit into one of the categories of special relevance. In this case, the State’s argument and the circuit court’s reason for admission of Swanson’s testimony was that the evidence fit the category of “absence of mistake.” For the following reasons, we agree. In Wynn v. State, 351 Md. 307 , 718 A.2d 588 (1998), the Court of Appeals thoroughly examined the general admissibility of other crimes or bad acts evidence and specifically analyzed the “absence of mistake” exception.

The Court, in Wynn , stated: “[Maryland Rule 5-404(b) ] means that evidence that the defendant committed other crimes or bad acts is not admissible unless it has special relevance — that it ‘is substantially relevant to some contested issue and is not offered simply to prove criminal character.’ ” Id. at 316 , 718 ⁴⁹⁹ A.2d 588 (quoting State v. Taylor, 347 Md. 363, 368 , 701 A.2d 389 (1997)). In Wynn , the Court of Appeals reiterated and applied the three step analysis of Faulkner. Id. at 324, 718 A.2d 588 . Explaining common factual scenarios within the absence of mistake exception, the Court quoted Professor Lynn McLain, stating: If the defendant admits that he or she took an action, but claims to have done so unintentionally or by mistake, so that allegations of, for example, forgery, fraud, embezzlement, or malice are unfounded, the prosecution may offer evidence of his or her similar prior wrongs, acts, or crimes.

This use of the evidence as proof of absence of mistake is merely the obverse of proof of intent. Wynn, 351 Md. at 325 , 718 A.2d 588 (footnote omitted) (quoting Lynn McLain, Maryland Practice § 404.12 (footnotes omitted)). Further, the Court of Appeals described a factual scenario in which a defendant asserts he was not responsible for the act causing injury, as the injury was caused by an independent accident. Wynn, 351 Md. at 326 , 718 A.2d 588 .

In this scenario, other crimes evidence could rebut the argument that an independent accident was the cause of the injury. Id. After discussing many cases and authorities from Maryland, 7 and other jurisdictions, 8 the Court, in Wynn , held that ⁵⁰⁰ for the “absence of mistake” exception in Maryland Rule 5-404(b) to apply, a defendant generally must make some assertion or put on a defense that he or she committed the act for which he or she is on trial, but did so by mistake. 9 Id. at 326-31 , 718 A.2d 588 . Additionally, in order for the exception to apply, the crime or bad act allegedly committed by mistake must be the same crime or bad act for which the defendant is on trial.

Id. at 332 , 718 A.2d 588 . Following Wynn, in Boyd, 399 Md. at 484-85 , 924 A.2d 1112 , the Court of Appeals reiterated: Judge Cathell for the Court in Wynn v. State, 351 Md. 307 , 718 A.2d 588 (1998), extensively discussed the general admissibility of other crimes or bad acts evidence, and specifically dealt with the “absence of mistake” exception. After reviewing numerous cases and other authorities, Judge Cat-hell explained one of the prerequisites for the exception (Wynn, 351 Md. at 330-331 , 718 A.2d at 599-600 , emphasis in original): “Our examination of the commentators and the case law both in Maryland and in other jurisdictions that we have discussed reveals a general prerequisite to the application of the absence of mistake exception. In order for the exception to apply, the defendant generally must make some assertion or put on a defense that he or she committed the act for which he or she is on trial, but did ⁵⁰¹ so by mistake.

In those cases noted above in which the exception was found not to apply, the defendant made no assertion or put forward no defense that he or she mistakenly committed the act for which he or she was on trial.” The factual scenario in this case satisfies the prerequisites for admission of absence of mistake evidence established by the Court in Wyrm. 10 Stahl testified that after a consensual sexual encounter for payment, appellant displayed a handgun, held the gun to her head, forced her to undress, straddled her, and defecated into her mouth. The State sought to prove that the act of defecating into the victim’s mouth constituted an unnatural or perverted sexual practice, in violation of C.L. § 3-322 (2003). 11 When arrested by Detective Austin, appellant denied using a handgun or force against Stahl. Appellant described the incident as an encounter with a prostitute and told Detective Austin that the defecation was accidental. Detective Austin testified as follows: ⁵⁰² [PROSECUTOR]: Okay.

Did he make any indication that he was in Waldorf at the Master Suites hotel on [sic] that time? [DETECTIVE AUSTIN]: Yes. Yes. [PROSECUTOR]: Okay. Did he indicate that he had any— contact "with Ms. Stahl? [DETECTIVE AUSTIN]: Yes. [PROSECUTOR]: Through your investigation — speaking to Ms. Stahl you’re aware of the — the statement she made about the [appellant] defecating? [DETECTIVE AUSTIN]: Yes. [PROSECUTOR]: Okay. What if anything, did the [appellant] say to you about that? [DETECTIVE AUSTIN]: He said it was an accident; it accidentally occurred.

At trial, Appellant testified, in his own defense: [PROSECUTOR]: Did you ever defecate on her which means go to the bathroom? [APPELLANT]: She said I did. [PROSECUTOR]: I’m not worried about what she said. Is that what you did? Do you know? [APPELLANT]: In all honesty Sir, to give you a totally honest answer, I really don’t. [PROSECUTOR]: Okay. [APPELLANT]: I honestly don’t. I mean like I was in an enjoyable — into a sexual act.

I was into an enjoyable moment. The next [sic] you know she pushed me up and just — and that was it. But — and because of her reaction, I mean, I honestly believe, you know what I mean, that whatever she said was whatever it was because of her reaction to be totally honest. But I don’t — I didn’t — I don’t — I don’t recall doing that.

But — you know. [PROSECUTOR]: Did you defecate or go to the bathroom for sexual gratification? [APPELLANT]: No. [PROSECUTOR]: Okay. ⁵⁰³ [APPELLANT]: Nah. Nah. No, Sir. [PROSECUTOR]: Okay. [APPELLANT]: You said cause you — you asking me did I go, use the bathroom for some type of sexual enjoyment? Is that what you ask? [PROSECUTOR]: Yes, that was my question. [APPELLANT]: Oh no, Sir.

Nah. No. No. The circuit court, finding the evidence satisfied the prerequisites for admission under Maryland Rule 5-404(b), held: THE COURT: Well, I have to look at first whether the other acts alleged and I’m going to accept the proffer for the purposes of this Motion in Limine — that I could find by clear and convincing evidence that the — alleged victim in the Prince George’s County case would testify in accordance with what the State — represents. But whether the other acts are substantially probative to a contested issue in the case other than to show that — conduct in the character or — and because the defense is going to be consent that it would be relevant to show his intent or absence of mistake or accident if that is in fact what he’s — is [sic] position is going to be. And weighing that against the — I mean certainly it’s prejudicial, I mean it’s — but is it unduly prejudicial and — I do find that it is more probative than prejudicial.

Under the circumstances I’m gonna deny the Motion in Limine. Appellant asserted pretrial that the act of defecation was accidental and, at trial, testified that the defecation was not for sexual gratification. The other crimes evidence, introduced by the State, involving Swanson, consisted of the same bad act or prior conduct as that for which appellant was on trial, defecating into the victim’s mouth. Given that appellant made an assertion and put on a defense that he committed the act for which he was on trial, but did so by mistake or accident, and the crime or bad act evidence introduced at trial involved the same crime or bad act for which the defendant was on trial, we find no error in the circuit court’s determination that the ⁵⁰⁴ evidence was admissible under the absence of mistake exception of Rule 5-404(b). 12 Appellant relies on Hurst v. State, 400 Md. 397 , 929 A.2d 157 (2007), in which the Court of Appeals held evidence of sex offenses by the accused against a different victim to be inadmissible.

We are aware that the Court in Hurst considered the relevance of uncharged sexual offenses committed by an accused against a different victim to prove consent in a current case. The Court, in Hurst , however, did not address the issue of the admission of testimony by a different victim to prove the absence of mistake, or that a particular action by the accused was not accidental. In Hurst , the Court found the testimony of the victim of an earlier assault was improperly admitted, as it was not relevant to prove whether the victim in the current case consented, and that the error in admitting the testimony was not harmless. Id. at 410 , 929 A.2d 157 .

In Hurst , the sole contested issue in the case was whether the current victim consented to the sexual acts. The Court reasoned: The State was required to demonstrate a lack of consent on the part of Ms. P. as to the sexual activities that it alleged. Evidence that a third party did not consent to sexual intercourse with petitioner in the past has no bearing on whether Ms. P. consented to sexual activity. Ms. E.’s testimony was irrelevant as well to Ms. P.’s consent or lack of consent.

It was in essence evidence that petitioner possessed a criminal propensity to engage in sex crimes and, as such, was inadmissible. Id. The defense of consent and the defense of mistake or accident differ on a fundamental level. Consent is based on ⁵⁰⁵ the conduct of the victim, whereas mistake or accident is based on the repetitive nature of the defendant’s conduct. 13 The Court, in Hurst , was not confronted with the admissibility of a different victim’s testimony regarding a sexual act where the accused claimed the act to be accidental.

Each of the cases the Court relied on in Hurst involved a victim or third parties’ free will to form consent. 400 Md. at 410-14 , 929 A.2d 157 (citing Brown v. State, 459 N.E.2d 376, 379 (Ind.1984) (The court found that where the only contested issue is consent, evidence of prior rapes committed by the defendant was not admissible because the fact that one woman was raped does not tend to prove that another woman did not consent.); State v. McArthur, 719 So.2d 1037, 1041 (La.1998) (The court held, “where the only issue in a prosecution for rape is that of consent, other offenses are usually held inadmissible. The lack of consent by other victims is not probative of lack of consent by the complainant of the charged offense.”); State v. Sweeney, 299 Mont. 111 , 999 P.2d 296, 302 (2000) (The court found that evidence of other sexual assaults was improperly admitted as this evidence served only to prove the defendant’s character and to show he acted in conformity with that character.); Com. v. Minor, 267 Va. 166 , 591 S.E.2d 61, 67 (2004) (The court precluded other crimes evidence, holding: “[I]n our view, evidence showing that a defendant raped one or more individuals other than the victim in the crime charged is generally not relevant to the question whether that victim did or did not consent to sexual intercourse with the defendant. This is so because ‘the fact that one woman was raped ... has no tendency to prove that another woman did not consent.’ ”); State v. Alsteen, 108 Wis.2d 723 , 324 N.W.2d 426 , ⁵⁰⁶ 429-30 (1982) (The court held that evidence of prior sexual crimes is inadmissible to prove that a subsequent complainant did not consent to sexual relations.)). None of the cases relied on by the Court in Hurst involved other crimes evidence being admitted to prove absence of mistake or accident.

Although Hurst postdates Wynn, Hurst is not controlling as to the absence of mistake exception under Maryland Rule 5-404(b), and does not encroach upon the standards set forth by the Court in Wynn . We note that, in his Reply Brief, appellant argues that mistake was not raised as a defense at trial, and that assuming arguendo, appellant asserted mistake as a defense, mistake is not a legal defense to the crime of unnatural or perverted sexual practices, rendering the other crimes evidence irrelevant. Additionally, appellant complains that the range of other crimes admitted into evidence, at trial, exceeded the “absence of mistake” exception. Contrary to appellant’s contentions, the record, to be sure, reflects appellant asserted accident and mistake as a defense.

To begin with, upon apprehension, as mentioned above, appellant advised Detective Austin that the defecation was an accident. Admittedly, during the hearing on the motion in limine, before the empanelling of the jury, appellant argued that there is no relevance insofar as the “absence of mistake” exception is concerned because mistake is not a defense to unnatural or perverted sexual practices. Although during the motion in limine appellant argued that unnatural or perverted sexual practices is a strict liability offense, for which there is no mistake defense to the crime, during closing argument, before the jury, appellant’s counsel took a different tact arguing: [DEFENSE COUNSEL]: We talked to Detective Swanson and — or Miss Swanson and on that portion — the State is correct in that you are only to consider her testimony for one thing and one thing alone. Was there defecation and was that mistake? ⁵⁰⁷ Additionally, at trial, it is undisputed that appellant testified that whatever the victim said as to the defecation was “whatever it was,” but that he did not defecate for sexual gratification or enjoyment, giving rise to the inference that the defecation occurred by accident or mistake.

As such, the record reflects that, pretrial in a statement to Detective Austin, at trial, in testimony, and in closing argument, appellant raised the defense of mistake or accident. As to whether mistake or accident may be a defense to the crime of unnatural or perverted sexual practices, in Herd v. State, 125 Md.App. 77, 90-91 , 724 A.2d 693 (1999), when discussing mens rea, we wrote: That, of course, does not end the inquiry. A simple black-or-white classification of the mens rea as one involving a specific intent or one involving only a general intent is but a part of the necessary examination. An involuntary act — a muscular spasm or a fall, for example — would not render one guilty even of a crime malum prohibitum let alone a crime malum in se.

Even a crime malum prohibitum requires a voluntary act. Mens rea literally means “a guilty mind.” With respect to crimes mala, in se, to wit, to crimes involving a mens rea, even general intent may mean more than merely voluntarily doing the act that constitutes the actus reus. In Garnett v. State 332 Md. 571, 580 , 632 A.2d 797 (1993), the Court of Appeals stated that: Conscious of the disfavor in which strict criminal liability resides, the Model Penal Code states generally as a minimum requirement of culpability that a person is not guilty of a criminal offense unless he acts purposely, knowingly, recklessly, or negligently, ie., with some degree of mens rea. Model Penal Code § 2.02 (Official Draft and Revised Comments 1980).

The Code allows generally for a defense of ignorance or mistake of fact negating mens rea. Id. at § 2.04. The Model Penal Code generally recognizes strict liability for offenses deemed “violations,” defined as wrongs subject only to a fine, forfeiture, or other civil penalty upon ⁵⁰⁸ conviction, and not giving rise to any legal disability. Id. at §§ 1.04,2.05.

While appellant argues that accident or mistake is not a defense to the crime of unnatural or perverted sexual practices, case law in Maryland reflects a recognition that a person must act voluntarily to be guilty of a crime malum prohibitum. Thus, other crimes evidence, under the Maryland Rule 5-404(b) absence of mistake exception, is admissible in the prosecution of an unnatural or perverted sexual practices offense, where the defendant alleges having committed the act or offense by mistake or accident. In this case, given that appellant did not concede before the jury that the offense of unnatural or perverted sexual practices is a crime of strict liability requiring no mens rea, the status of the law with respect to the permission of an accident or mistake defense generally, and the requirement that even a crime malum prohibitum be committed voluntarily, the circuit court did not err in the admission of the other crimes evidence under the accident or absence of mistake exception to Maryland Rule 5-404(b). To the extent that appellant maintains the range of other crimes evidence admitted, at trial, exceeded the act of defecation — because Swanson was permitted to testify about her advertisement on Craigslist, appellant’s alleged demand for unprotected sex, that appellant had a gun and money was exchanged — we conclude that counsel for appellant failed to preserve this issue for appeal.

Although defense counsel litigated a motion in limine regarding the admission of the defecation incident as to Swanson, during the hearing on the motion in limine, counsel did not object to the scope of Swanson’s testimony. When Swanson was called to testify at trial and recounted the details of her experience with appellant, there was no objection to her testimony regarding those details. It was clear during the motion in limine proceeding that the State intended to introduce the details of Swanson’s encounter. During the hearing on the motion in limine, the State advised: ⁵⁰⁹ [PROSECUTOR]: The evidence that we intend to show by the February act up in Prince George’s County is that he committed the same act, [sic] okay, by force. [PROSECUTOR]: The evidence that we intend to show from Ms. Swanson and her testimony would go to show that what he did in Charles County in April was absolutely no mistake.

That’s what he does. That’s what he does and that’s what he did in February and that’s what he did in April. [PROSECUTOR]: Clear and convincing evidence, I can make a further proffer if Your Honor wants to, that’s how you indicated that you wish to proceed. THE COURT: If that’s acceptable. [PROSECUTOR]: Right.... Okay.

About what — Ms. Swanson’s testimony is going to be and the Court could— could find that — by clear and convincing evidence she’s going to testify to the statement that she made and she made it to — I think it was Officer Howard of Prince George’s County Police I think. In the Application for Statement of Charges completed by Detective Austin on May 1, 2009, and contained in the court file of the Prince George’s County Circuit Court, Detective Austin wrote that he had been provided with information from a Prince George’s County Police Department Detective, Ann Nicodemus, of a sexual assault involving another victim who had posted on Craigslist, and there were similarities in “the description of the weapon used and the method of operation by the suspect as described by both victims.” Detective Austin wrote that the suspect defecated in the Prince George’s County victim’s mouth and forced her to consume his feces at gunpoint. These details were available to appellant and his counsel, as well as the State’s proffer at the hearing on the motion in limine as to what Swanson’s testimony would be, yet no objection was made during the hearing on the motion in limine as to the scope of Swanson’s testimony. ⁵¹⁰ At the hearing on the motion in limine, appellant initially made a two-fold argument, first, that introduction of the other crimes evidence would prevent him from testifying on his own behalf, due to appellant’s Fifth Amendment privilege against self incrimination in the Prince George’s county case; and secondly, that since identification was not an issue in this case, the other crimes evidence was not admissible under a signature crime or identity exception theory. Upon being informed by the prosecutor that the State sought to introduce the other crimes evidence under Maryland Rule 404(b) absence of mistake exception, appellant argued that the unnatural or perverted sexual practices offense is a strict liability offense, and mistake is not a defense.

While defense counsel sought to exclude Swanson’s testimony, there was no objection as to the scope of Swanson’s testimony. When Swanson was called as a witness at trial, counsel stated, “[j]ust again to note my objection for the record.” Swanson testified, without objection, that she encountered appellant through Craigslist, 14 appellant requested oral sex without a condom, 15 he produced a gun, 16 and that ⁵¹¹ money had been exchanged. 17 We conclude appellant has not preserved an objection to the testimony complained of, as the scope of Swanson’s testimony was not the subject of appellant’s motion in limine, and appellant made no objection, at trial, to this testimony. 18 Alternatively, assuming, arguendo, the objection to the scope of Swanson’s testimony was preserved for appeal, we conclude that this testimony was reasonably necessary to describe the other crimes evidence. Under Maryland Rule 404(b), evidence can be admitted to the extent necessary to describe the crime. See Faulkner, 314 Md. at 642-43 , 552 A.2d 896 (“This corroborative evidence, including the ‘other crimes’ evidence, is not merely cumulative in establishing Faulkner’s guilt.

It was reasonably necessary and served an ⁵¹² appropriate probative purpose. In other words, it did more than suggest to the jury that Faulkner was a bad man or had a propensity to commit crimes.”); Cross, 282 Md. at 474, 386 A.2d 757 (“In some cases, [the weighing of the necessity for and probativeness of the evidence concerning the collateral criminal act against the untoward prejudice which is likely to be the consequence of its admission] may require that evidence of the criminal actions of the defendant be totally excluded; in others, admission of portions or all of the evidence of the defendant’s specific criminal actions may be permissible.”). Appellant relies on Streater v. State, 352 Md. 800 , 724 A.2d 111 (1999), in an attempt to limit the scope of the other crimes evidence. Streater , however, is not dispositive.

In Streater , the Court of Appeals addressed the scope of evidence admitted as other crimes evidence. In Streater , the Court held that a protective order admitted into evidence containing three factual determinations 19 made by a district court judge, which constituted the basis upon which Streater had been ordered not to contact the victim, was improperly admitted as other crimes evidence. 352 Md. at 802 , 724 A.2d 111 . The Court found that the trial court failed to properly analyze three separate instances of other crimes evidence contained in the protective order. Id. at 814 , 724 A.2d 111 .

The Court found that: [T]he factual determinations regarding the other crimes contained within the protective order each must be analyzed separately from the question of the admissibility of the ⁵¹³ protective order itself. The trial court must therefore apply the three-prong test outlined above to determine (1) whether the evidence of other crimes carries any substantial relevance to contested issues in the case, (2) whether the other crimes have been established by sufficient evidence, and (3) whether admission of the contents had probative value outweighing the prejudice resulting from admission. Id. at 814-15 , 724 A.2d 111 . The Court found that the trial court erred: On the other hand, the trial court in the instant case ruled the entire protective order form admissible without addressing in the record the admissibility of factual references to other crimes that the order contained.

These factual findings related to a time period not mentioned by any witnesses in the proceedings and also to acts committed by Mr. Streater that were unsubstantiated by any other testimony in the case and may have been more prejudicial than probative. In her testimony, Ms. Streater never discussed the specific events that apparently supported the factual findings contained in the protective order. The only events she testified to occurred four months after the protective order had been issued. Further, the record does not reveal the time frame in which the factual findings contained in the November 1995 order occurred.

The only reference at trial to any violent act committed by Mr. Streater was the reference in the protective order to the “[bjattery or assault and battery.” The State never sought to explain the battery mentioned in the order nor did it present similar evidence through Ms.