Devincentz v. State

Adkins, J. "[T]he trial of any case is a search for truth. The strength of each side of an issue rests upon the believability of the evidence offered as proof." State v. Cox , 298 Md. 173 , 178, 468 A.2d 319 (1983). It is a fundamental principle of Maryland law that, in a criminal case tried before a jury, assessing a witness's credibility is a matter solely for the jury.

Bohnert v. State , 312 Md. 266 , 277, 539 A.2d 657 (1988). One method of attacking a witness's credibility is impeachment. In this opinion, we address two questions of Maryland evidentiary law pertaining to impeaching witness credibility. First, we consider whether a witness's statement that another witness "would not tell the truth about certain things[,]" was admissible as a personal opinion about that witness's character for untruthfulness.

Second, we explore the admissibility of out-of-court threats as nonhearsay evidence of bias. FACTS AND LEGAL PROCEEDINGS In 2008, Julius Devincentz, Jr. and Y.D. began a romantic relationship. Y.D., her daughter K.C., and her son S., moved into Devincentz's home in Elkton, Maryland from Pennsylvania. Devincentz's children, Brianna, Joshua, and Kenny also lived at the house.

Devincentz and Y.D. lived together with their children as a blended family until the couple separated in November 2015. In April 2015, K.C. left the Devincentz home and went to the Maryland Salem Children's Trust, a residential facility for juveniles. Some months into her stay, in September 2015, K.C. told her therapist that Devincentz had sexually abused her when she was six or seven years old. The therapist reported K.C.'s allegations.

The State charged Devincentz with one count of continuing course of conduct against a child, two counts of sexual abuse of a minor, one count of second-degree sexual offense, one count of third-degree sexual offense, one count of fourth-degree sexual offense, and one count of second-degree assault. In 2016, Devincentz was tried in the Circuit Court for Cecil County. K.C. was the State's primary witness. She testified that, on multiple occasions, when she was about seven years old, and nobody else was home, Devincentz would watch porn on our desktop computer in the living room, and he would ask me to come over and sit on his lap, and I would be scared and sometimes I would say no, and he would force me to sit on his lap, and he would touch me in my private area.

K.C. testified that Devincentz placed his hand underneath her clothes and underwear and touched the inside of her vagina for approximately 10 or 15 minutes. Afterward, Devincentz told her not to tell anyone. She also testified that Devincentz watched pornography on the computer while other members of the household were present. Two or three weeks after the first incident, Devincentz again digitally penetrated K.C. while she was in bed.

K.C. told Devincentz that she did not like it, asked him to get away from her, and threatened to tell her mother. Devincentz gave K.C. a five-dollar bill and told her not to say anything. K.C. also alleged that when she was around 10 or 12 years old, on several occasions, Devincentz offered her money to lift up her shirt. She always refused to do so.

She testified that on one occasion he slapped and grabbed her bottom. K.C. explained that she did not report Devincentz's actions out of fear that she "was going to get physically hurt" and because she did not want to ruin her mother's relationship with Devincentz. K.C. testified that she and Devincentz argued about her attitude, disputes with others in the household, her noncompliance with his requests to do chores, and her failure to do things the way he wanted. On cross-examination, K.C. acknowledged that she "was a very angry person," and that she "would butt heads a lot." K.C. explained that she clashed with Devincentz because "he was very demanding," she "didn't like the tone of voice he would use[,]" and "because he hurt" her.

She attributed her difficulties with others in the house to the strain of keeping the abuse secret. K.C. stated that she did not get along with Joshua because he was "hardheaded," and he did not like her family. K.C. wanted to move back to Pennsylvania and live with her father. K.C. explained that she did not disclose the abuse earlier because she was afraid of Devincentz and Joshua.

She stated that Joshua "posed a threat" to her, but that "nobody threatened [her]." Joshua would "scream at her and [get] in [her] face." 1 After the State rested, defense counsel called Joshua. The State objected because defense counsel had not provided prior notice of the witnesses he planned to call and refused to proffer the subject matter of their testimony. Defense counsel contended that the State received notice because both witnesses were issued subpoenas. The State explained that it sought a proffer "because if these witnesses are character witnesses, this may open the door for impeachment purposes." The trial judge overruled the State's objection and permitted the defense to call its witnesses.

Joshua testified consistently with K.C. about the composition of the Devincentz household. He explained that K.C. "never really liked [Devincentz]," she "didn't like [Devincentz's] rules ... [and s]he wanted to be able to do whatever she wanted ...." Joshua witnessed arguments between Devincentz and K.C. Defense counsel attempted to elicit testimony about an argument that occurred after K.C. stole a cell phone. The State objected on the grounds of relevance.

Defense counsel proffered that Joshua witnessed the argument and that "[i]t goes to motive." The trial judge ruled that Joshua could testify about the argument, but not about K.C.'s alleged theft because he lacked first-hand knowledge. The following exchange occurred: [ Defense Counsel ]: I asked you a question about the cell phone situation. Without characterizing how that came up, as a result of that argument, what occurred? [ Joshua ]: [K.C.] was unhappy with [Devincentz]'s decision on the argument. And once it was resolved by a third party [, K.C.] was yelling and screaming and saying things that she could do that would get him in trouble. [ Prosecutor 1 ]: Objection. [ Prosecutor 2 ]: Objection.

The Court : Sustained. [ Defense Counsel ]: Now, were those things that you heard? [ Joshua ]: Yes. (Emphasis added). Defense counsel did not make a proffer after the trial judge sustained the objection. Joshua testified that he never saw anyone using the family computer to look at pornographic material and never saw such material stored on the computer.

Defense counsel then asked about K.C.'s relationships with other family members. [ Defense Counsel ]: Now, would it be fair to say that [K.C.] had problems not only with [Devincentz,] but with other people in the family? [ Joshua ]: Yes. [ Defense Counsel ]: Would you describe what you mean by that? [ Joshua ]: [K.C.] had a problem with her mouth. [K.C.] would say things to people, about people, and then she would like to argue with you. And she would not tell the truth about certain things. [ The State ]: Objection. The Court : I'll sustain that. But [K.C.] would argue with people, right? [ Joshua ]: Yes.

The Court : Okay. [ Joshua ]: And [K.C.] would give her side[,] and then there would be the other person's side. [ Defense Counsel ]: I have nothing further, Your Honor. (Emphasis added). 2 The jury found Devincentz guilty of sexual abuse of a minor and second-degree assault, but acquitted him of the charge of a continuing course of conduct against a child. The trial court sentenced him to 25 years in prison for the sexual abuse of a minor, and a consecutive 10 years for second-degree assault. 3 Devincentz appealed. In an unreported decision, the Court of Special Appeals affirmed his conviction.

See Devincentz v. State , No. 1297, Sept. Term 2016, 2017 WL 4231583 (Md. Ct. Spec. App. Sept. 25, 2017). We granted certiorari to resolve the following questions 4 : 1. Whether Devincentz preserved the issues for review. 2.

Whether the trial court erred by prohibiting a witness's testimony regarding the complainant's truthfulness. 3. Whether the trial court erred by prohibiting a witness's testimony about threats the complainant made during an argument with Devincentz. We shall answer yes to all three questions. DISCUSSION Preservation The State raises a recurrent appellate theme-preservation of issues.

An appellate court will not "decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court ...." Md. Rule 8-131(a). The Court of Special Appeals concluded that Devincentz had not preserved either issue relating to Joshua's testimony for review because defense counsel did not make a proffer regarding the relevance or substance of the excluded testimony. Devincentz , 2017 WL 4231583 , at ³. Devincentz and the State agree that the absence of a proffer does not bar appellate review when the substance and relevance of the excluded evidence is apparent from the context.

Devincentz avers that Joshua's testimony and the circumstances of the trial satisfied these criteria, and the State disagrees. Maryland Rule 5-103(a)(2) requires that, to preserve a claim that a trial court erroneously excluded evidence, the party must be prejudiced by the ruling and "the substance of the evidence was made known to the court by offer on the record or was apparent from the context within which the evidence was offered ." (Emphasis added). The most common method of preserving a claim that the trial court erred is to proffer the substance and relevance of the excluded evidence. Merzbacher v. State , 346 Md. 391 , 416, 697 A.2d 432 (1997) ; see also Mack v. State , 300 Md. 583 , 603, 479 A.2d 1344 (1984), abrogated on other grounds by Price v. State , 405 Md. 10 , 949 A.2d 619 (2008).

A proffer makes "the grounds for a different ruling manifest to the trial court at a time when the court can consider those grounds and decide whether to make a different ruling." Peterson v. State , 444 Md. 105 , 124-25, 118 A.3d 925 (2015). But a proffer is not an absolute requirement for preservation. Before the Maryland Rules of Evidence were adopted, in Peregoy v. Western Md. Ry. Co. , 202 Md. 203 , 209, 95 A.2d 867 (1953), we explained that although ordinarily a proffer is desirable and sometimes indispensable to indicate the significance of the question and of the court's action in sustaining the objection, nevertheless, where the tenor of the questions and the replies they were designed to elicit is clear, a proffer in the record is not a necessary prerequisite for a review of the ruling.

(Emphasis added). Maryland Rule 5-103(a)(2) retains this exception by permitting review if "the substance of the evidence ... was apparent from the context within which the evidence was offered." We have examined the application of the preservation rule in Maryland. In Merzbacher , 346 Md. at 416 , 697 A.2d 432 , defense counsel attempted to elicit testimony from an Archdiocese official regarding whether any complaints had been filed against the defendant. Before the official could answer the question, the State objected, and the trial court sustained the objection.

Merzbacher conceded the lack of proffer on appeal but insisted that the question elicited an obvious answer. We were unconvinced because the witness "could have answered the question in any number of ways," and it was not evident that the witness's answer would have been relevant. Id. Similarly, in Conyers v. State , 354 Md. 132 , 163-64, 729 A.2d 910 (1999), Conyers contended that two of his witnesses should have been allowed to testify about a State witness's purported motive for testifying against Conyers, and that they warned Conyers about the witness's motives.

We pointed out that the trial court sustained the State's objections before the witnesses could answer and Conyers never established the substance or the importance of the excluded evidence. Id. at 164 , 729 A.2d 910 . Despite Conyers's contentions, the likely answers were not at all "obvious." Id. His evidentiary presentation was riddled with defects that rendered the excluded testimony likely inadmissible, and ultimately, under the circumstances, even if the exclusion was in error, it was harmless.

Id. at 165-66 , 729 A.2d 910 . In Peterson , 444 Md. at 162 , 118 A.3d 925 , we held that defense counsel did not preserve the issue of whether the state could question a witness about his expected benefit from his testimony, when the witness had pending charges in Maryland and Virginia and had agreed to work as a police informant in Virginia. The trial court sustained the State's objections before the witness could answer the questions. Id. at 131-32 , 118 A.3d 925 .

Defense counsel proffered the pending Virginia charges but nothing else. Id. at 131 , 118 A.3d 925 . We explained that "the proffer that made defense counsel's intention clear emerged in pieces and spurts," and in legal arguments before any witness had testified and after the witness had concluded his testimony. Id. at 141 , 118 A.3d 925 .

Nor was it apparent that defense counsel had an adequate foundation to question the witness about an expected benefit. Id. at 141-42 , 118 A.3d 925 . But Peterson , Conyers , and Merzbacher do not stand for the proposition that a proffer is mandatory. Rather, they illustrate when the contents and relevance of excluded evidence are insufficiently clear to preserve an issue for appellate review.

In Conyers and Merzbacher , we declined to speculate about the contents of the excluded testimony. Conyers , 354 Md. at 164 , 729 A.2d 910 ; Merzbacher , 346 Md. at 416 , 697 A.2d 432 . In Peterson , we observed that defense counsel's incomplete and drawn out proffer did not make it clear to the trial court what defense counsel intended to accomplish. 444 Md. at 141 , 118 A.3d 925 . Because the relevance and substance of the excluded evidence was unknown, the issues were not preserved.

Jorgensen v. State , 80 Md. App. 595 , 565 A.2d 371 (1989), demonstrates when a claim of error relating to excluded evidence is preserved even without a proffer. Defense counsel sought to prove that a deputy did not seek the defendant's arrest until after the defendant and his brother planned to file administrative complaints against the deputy. Id. at 599 , 565 A.2d 371 . When defense counsel asked the deputy, and the defendant's brother, about the timing of the arrest warrant and the complaint, the State objected before the deputy could answer the question.

Id. at 601 , 565 A.2d 371 . The witness's brother related some information about the timing before objections and a motion to strike curtailed his testimony. Id. at 601-02 , 565 A.2d 371 . The Court of Special Appeals held that defense counsel's failure to proffer was not a fatal omission because "[t]he questions to which objections were sustained clearly generated the issue-what the examiner was trying to accomplish was obvious." Id. at 601 , 565 A.2d 371 .

Jorgensen's opening statement clearly set forth his defense that the arrest was based on improper motivations. Thus, no proffer was necessary to preserve the issue for review. Id. at 602 , 565 A.2d 371 . The Court also concluded that defense counsel had established relevance because the questions "were specific and did have special bearing on his credibility or bias." Id. at 604 , 565 A.2d 371 ; see also Taylor v. State , 226 Md. App. 317 , 378, 130 A.3d 509 (2016) (issue preserved without proffer because substance was apparent from context of precise questioning).

The State views Jorgensen as inapposite because, there, the contents of the question and the opening statement clearly presented the issue. But the Court of Special Appeals did not require that counsel provide a detailed exposition in opening statements-rather, it pointed to a portion of the statement that discussed the general theory of the case. Jorgensen , 80 Md. App. at 602 , 565 A.2d 371 . Here, the defense opening statement met the Jorgensen requirement by explicitly asserting that the defense intended to challenge K.C.'s credibility, and suggested she had ulterior motives for alleging that Devincentz abused her.

Unlike in Conyers , Merzbacher , and Peterson , we need not speculate as to what Joshua's testimony would have been. The State objected after Joshua answered each question. His answers clearly revealed the relevance of his testimony. Joshua's statement that K.C.

"would not tell the truth about certain things" was obviously aimed at K.C.'s credibility-which defense counsel described as "the main issue in this case" during his opening statement. Joshua's testimony that, after an argument, K.C. was "saying things that she could do that would get [Devincentz] in trouble," was relevant to K.C.'s alleged motives and bias against Devincentz-and defense counsel, when addressing the admissibility of Joshua's testimony about the fight, argued that it was relevant to motive. To be sure, counsel should make a proffer regarding excluded testimony. See Robinson v. State , 410 Md. 91 , 103, 976 A.2d 1072 (2009) ("Fairness and the orderly administration of justice is advanced 'by requiring counsel to bring the position of their client to the attention of the lower court at the trial so that the trial court can pass upon, and possibly correct any errors in the proceedings.' " (quoting State v. Bell , 334 Md. 178 , 189, 638 A.2d 107 (1994) ) ).

But here, a proffer was not essential. The trial court heard Joshua's testimony before it sustained the State's objections, and the relevance was apparent from the context. 5 See Md. Rule 5-103(a)(2) ; Peregoy , 202 Md. at 209 , 95 A.2d 867 . We hold that Devincentz has preserved the issue of whether the trial judge properly excluded both portions of Joshua's testimony. We next address the substance of the trial court's rulings excluding two pieces of testimony, beginning with Joshua's testimony that K.C.

"would not tell the truth about certain things." Joshua's Testimony Regarding K.C.'s Truthfulness We review a trial court's decision to admit or exclude a character witness's opinion for abuse of discretion. See Durkin v. State , 284 Md. 445 , 453, 397 A.2d 600 (1979). "An abuse of discretion occurs where no reasonable person would take the view adopted by the circuit court." Williams v. State , 457 Md. 551 , 563, 179 A.3d 1006 (2018). "Our determination of whether a trial court abused its discretion 'usually depends on the particular facts of the case [and] the context in which the discretion was exercised.' " King v. State , 407 Md. 682 , 696, 967 A.2d 790 (2009) (quoting Myer v. State , 403 Md. 463 , 486, 943 A.2d 615 (2008) ).

Devincentz argues that the trial court abused its discretion when it excluded Joshua's testimony that K.C. "would not tell the truth about certain things." He maintains that Joshua provided an opinion about K.C.'s character for truthfulness, which is relevant evidence admissible under Md. Code (1974, 2013 Repl. Vol.), § 9-115 of the Courts and Judicial Proceedings Article ("CJP") and Md. Rule 5-608(a)(1). Devincentz contends that Joshua had an adequate basis to form an opinion about K.C.'s character for truthfulness based on the length and nature of their relationship, and Joshua's testimony was relevant because credibility was central to the case.

The State defends the trial court's ruling on grounds that Joshua's testimony was not a suitably formulated opinion. The State insists that defense counsel also failed to establish how long Joshua and K.C. lived together, and that Joshua had personal knowledge of K.C.'s character for untruthfulness, thereby failing to prove an adequate basis. Further, the State asserts that Joshua lacked a current basis for an opinion about K.C.'s character for truthfulness. Md. Rule 5-608(a)(1) permits a character witness to attack the credibility of another witness by testifying either that the "witness has a reputation for untruthfulness," or "in the character witness's opinion, the witness is an untruthful person." A character witness may "give a reasonable basis" for his testimony, but may not, on direct examination, testify to specific instances.

Id. (a)(3)(B). CJP § 9-115 states: [w]here character evidence is otherwise relevant to the proceeding, no person offered as a character witness who has an adequate basis for forming an opinion as to another person's character shall hereafter be excluded from giving evidence based on personal opinion to prove character , either in person or by deposition, in any suit, action or proceeding, civil or criminal, in any court or before any judge, or jury of this State. (Emphasis added).

CJP § 9-115 modified the traditional rule limiting a character witness's testimony about another witness's character for truthfulness to testimony about the "general reputation in the community for veracity of the witness under attack." Durkin , 284 Md. at 448 -49 , 397 A.2d 600 . Under CJP § 9-115 and Md. Rule 5-608, a character witness may offer his opinion of another witness's character for truthfulness and the basis for that opinion. See Jensen v. State , 355 Md. 692 , 707-08, 736 A.2d 307 (1999). 6 We first consider whether Joshua's testimony was, in fact, an opinion about K.C.'s character. Although it concluded Devincentz had not preserved the issue for review, the Court of Special Appeals determined that Devincentz's counsel "sought to elicit-and indeed did elicit-[Joshua's] opinion about the victim's truthfulness." Devincentz , 2017 WL 4231583 , at ².

The State relies on Jensen and contends that, "at best" Joshua testified merely about his basis for a character opinion. In Jensen , 355 Md. at 695 , 736 A.2d 307 , Brian Wooldridge testified for the State. Defense counsel called Melissa Goff to impeach Wooldridge's credibility. Goff testified that she had known Wooldridge for approximately a year and he would tell her a lot of stories that "didn't add up ...." Id. at 696-97 , 736 A.2d 307 .

The trial court found that Goff had an adequate basis to provide an opinion of Wooldridge's character for veracity. Id. at 697 , 736 A.2d 307 . When asked for her opinion, Goff announced that Wooldridge was a "compulsive liar." The trial court sustained the inevitable objection and did not permit Goff to testify about the basis for her opinion. Id.

On appeal, we rejected the State's claim that permitting Goff to testify about the basis for her opinion violated Md. Rule 5-608(a)(3)(B) because her direct testimony impermissibly discussed specific instances of conduct by tying events together. Id. at 698-99 , 736 A.2d 307 . Rather, Goff testified "as a general matter , to Wooldridge's tendency to tell mutually inconsistent stories, i.e. , his general tendency to be untruthful ." Id. at 699 , 736 A.2d 307 (emphasis added). We explained that Md. Rule 5-608 prohibits specific instance testimony on direct because, while convincing, it has the capacity for prejudice, surprise, confusion, and is time-consuming.

Id. at 699-700 , 736 A.2d 307 . Because Goff's testimony "spoke to a general trait and not to particular occasions on which [the witness] lied , it would not serve to distract and confuse the jury, nor would it consume time by altering the focus of the trial to other particular events." 7 Id. at 700 , 736 A.2d 307 (emphasis added). A character witness, we explained, may offer more than a "bare conclusion" regarding a witness's character for untruthfulness-she is "entitled to some latitude in informing the jury as to the basis for an opinion, so long as that person avoids venturing into the troublesome area of specific instances." Id. at 708 , 736 A.2d 307 . Like the witness in Jensen , Joshua testified to a "general behavior pattern." Id. at 699 , 736 A.2d 307 .

Joshua did not offer specific instances when he said K.C. "would not tell the truth about certain things." His testimony fits within Jensen . He did not inject particulars that could distract the jury, waste time, or cause undue prejudice. It was consistent with the purposes of Md. Rule 5-608.

See id. at 699-700 , 736 A.2d 307 . Although Joshua did not say, "In my opinion, K.C. is not a truthful person," he testified-as he was permitted-that K.C. argued with family members and was untruthful about certain things. To be sure, it is a better practice to frame opinion testimony with greater precision, but the State's insistence that such testimony is only acceptable upon the use of formulaic phrases is inconsistent with the intent of CJP § 9-115. As we explained in Kelley v. State , 288 Md. 298 , 302, 418 A.2d 217 (1980), CJP § 9-115"permits the admission of a broad range of testimony[,] which may aid the jury in assessing the credibility of a witness ...." The State has not offered Maryland authority showing that it is necessary to phrase questions or opinions as it proposes. 8 For these reasons, we conclude that Joshua offered an opinion about K.C.'s character for truthfulness. 9 CJP § 9-115 sets forth two conditions that must be met before opinion testimony is admissible.

First, character evidence must be "otherwise relevant to the proceeding." Id. Second, the witness must have an "adequate basis" to form that opinion. As we explained in Durkin , 284 Md. at 452 , 397 A.2d 600 , "the adequacy of the basis relates to whether the personal opinion shall be 'excluded,' and not merely to the weight of the personal opinion testimony." See also Jensen , 355 Md. at 707 , 736 A.2d 307 (CJP § 9-115 has no "express limitations beyond requiring a witness to have an adequate basis before testifying"). The trial judge determines whether these conditions are satisfied.

Durkin , 284 Md. at 453 , 397 A.2d 600 . Provided these conditions are met, the defendant is entitled to elicit personal opinion testimony. See Void v. State , 325 Md. 386 , 391-92, 601 A.2d 124 (1992). To assess when a witness has an adequate basis to offer a personal opinion about another witness's character, we draw a distinction between the foundation required for opinion testimony as opposed to reputation testimony.

Reputation testimony requires showing that the witness is familiar with the individual's reputation in the relevant community. See Allison v. State , 203 Md. 1 , 7-8, 98 A.2d 273 (1953) ; Braxton v. State , 11 Md. App. 435 , 440, 274 A.2d 647 (1971). 10 A witness, like Joshua, who offers a personal opinion has a different foundation requirement because he provides a personal assessment of another's character. See United States v. Watson , 669 F.2d 1374 , 1382 (11th Cir. 1982). Because the witness describes his own impressions, the core requirement for such testimony is that the witness must have personal knowledge of the individual.

Id. The witness's lack of familiarity, reliance on isolated incidents, or bias may be exposed on cross-examination. Id. (citing 3 Weinstein's Federal Evidence Art. 608(04), at 608-20 (1981) ).

See also United States v. Lollar , 606 F.2d 587 , 589 (5th Cir. 1979). We have offered some guidance regarding an adequate basis to offer personal opinion testimony. Abbreviated encounters with an individual that do not furnish an opportunity to evaluate his or her credibility do not provide an adequate basis. See Durkin , 284 Md. at 453 -54 , 397 A.2d 600 (no abuse of discretion to exclude opinion testimony from a police chief concerning a witness's character for truthfulness based only on chief's "brief and limited encounter" during which he decided that the witness had filed a false police report).

See also Booth v. State , 327 Md. 142 , 192, 608 A.2d 162 (1992) (no abuse of discretion to exclude probation officer's opinion that witness was an untruthful person without evidence that her opinion would be based on anything more than the contents of his probation record); Kelley , 288 Md. at 303 -04 , 418 A.2d 217 (abuse of discretion to admit opinion from polygraph examiner that witness was not telling the truth after a two-hour interview). A witness has an adequate basis for personal opinion character testimony when the witness has regular contact with the person whose character she is evaluating, and reason to believe that the person has not been truthful. See Jensen , 355 Md. at 695 -99 , 736 A.2d 307 (character witness had reasonable basis to offer opinion testimony based on year-long acquaintance and regular contact with other witness); Barnes v. State , 57 Md. App. 50 , 59, 468 A.2d 1040 (1984), cert. denied , 299 Md. 655 , 474 A.2d 1344 (1984) (no abuse of discretion to admit police officer's personal opinion testimony because he was acquainted with the witness, had interviewed her repeatedly, and had reason to believe she was not truthful). In Booth , 327 Md. at 192 , 608 A.2d 162 , we explained that the adequate basis inquiry must, at a minimum, elicit how long and how well the witness has known the individual. 11 See also Honey v. People , 713 P.2d 1300 , 1302 (Colo. 1986) (en banc).

Neither Md. Rule 5-608 or CJP § 9-115 require a particular length of acquaintance or basis of knowledge. Nor have other jurisdictions established a minimum length of acquaintance to offer opinion testimony-the court making the assessment "may consider how well the witness knows the witness to be impeached and under what circumstances the witness giving the opinion knew the [other] witness ...." Honey , 713 P.2d at 1302 . See also Watson , 669 F.2d at 1382 ; Lollar , 606 F.2d at 589 ; United States v. Mandel , 591 F.2d 1347 , 1370-71 (4th Cir. 1979), vacated on other grounds by 602 F.2d 653 (4th Cir. 1979) (en banc), cert denied 445 U.S. 961 , 100 S.Ct. 1647 , 64 L.Ed.2d 236 (1980) ; State v. Gelinas , 160 Conn. 366 , 279 A.2d 552 , 554 (1971) ; State v. Eldred , 5 Neb.App. 424 , 559 N.W.2d 519 , 528 (1997). Here, the evidence presented at trial established the length and nature of Joshua and K.C.'s acquaintance.

Both Devincentz and the State presented testimony, from K.C., Y.D., and Joshua, establishing that Joshua and K.C. resided in the same home for over six years, and that Joshua had known K.C. since she was six or seven years old. 12 Both Joshua and K.C. testified about the household, that they argued with each other, and that K.C. had disagreements with other family members. As a member of the household, Joshua was reasonably familiar with the family dynamics and would have had first-hand knowledge of at least some of K.C.'s problems with family members-and his testimony was based on his observations. See United States v. Turning Bear , 357 F.3d 730 , 734 (8th Cir. 2004) (defendant laid sufficient foundation for witness's testimony about victim's character for untruthfulness because victim lived with witness for four to six months and they had daily contact). Thus, he had sufficient contact with K.C. to form an opinion about her truthfulness.

Indeed, our cases demonstrate that witnesses with shorter and less personal acquaintances have offered opinion testimony. See, e.g. , Jensen , 355 Md. at 695 -97 , 736 A.2d 307 ; Booth , 327 Md. at 192 , 608 A.2d 162 ; Barnes , 57 Md. App. at 59 , 468 A.2d 1040 . The State maintains that, despite the length of their acquaintance, defense counsel did not "elicit how current the basis for Joshua's opinion was." The State contends that any opinion Joshua formed about K.C.'s character for truthfulness would relate to at least a year before trial, if not more. Because Joshua's opinion was "relevant only to the extent that it informed the jury about [K.C.'s] veracity at the time of the June[ ] 2016 trial," the State reasons the trial court was within its discretion to exclude Joshua's testimony.

Neither party points to Maryland authority that offers guidelines for how current the basis for an opinion must be-or its relationship to relevance. Recently in Fallin v. State , 460 Md. 130 , 153-55, 188 A.3d 988 , 2018 WL 3410022 , at ¹² (2018), we explained that to offer an opinion about a witness's character for untruthfulness, the character witness "must establish past knowledge of the witness ...." (Emphasis added). Such knowledge is necessary to form a current opinion about the "general reputation or propensity of the witness to tell the truth." Id. Moreover, Maryland Rules 5-608(a) and 5-616(b)(5) do not require a party to establish when a witness formed his opinion of another's character.

Professor McLain explains that opinion or reputation testimony about a witness's character for truthfulness "must concern a time pertinent to the witness's testimony at trial." 6 Lynn McLain, Maryland Evidence State and Federal § 608:2, at 591 (3d ed. 2016). But "pertinence" simply requires that the opinion be relevant to the impeached witness's testimony at trial. See The American Heritage Dictionary of The English Language 1312 (4th ed. 2006) ("Pertinent" means "[h]aving logical precise relevance to the matter at hand"). McCormick on Evidence explains that although the "crucial time when a witness's character influences his truth-telling" is at the time of testimony, reputation and opinion " take[ ] time to form and are the result of the witness's earlier conduct ." 1 Kenneth S. Broun et al., McCormick on Evidence § 43, at 282 (7th ed. 2013) (emphasis added).

Thus, such testimony does not "reflect character precisely at the trial date." Id. A witness may testify about another witness's reputation or opinion at the time of trial, and pre-trial time periods that the trial court decides, as a matter of discretion, are not too remote. Id. at 282-83. See also 3A Wigmore, Evidence in Trials at Common Law § 928, at 754-55 (Chadbourn rev. ed. 1970) (emphasis added) ("The only limitation to be applied would be ... that the character must not be so distant in time to be void of real probative value in showing present character ; this limitation to be applied in the discretion of the trial court[.]").

Other jurisdictions have concluded that character evidence must be relevant to the time of trial, but "the sources of the information of the impeaching witness must necessarily more or less extend back into the past and considerable latitude is allowed in regard to time ." State v. Thomas , 8 Wash.2d 573 , 113 P.2d 73 , 77 (1941) (emphasis added). Whether testimony is too remote to have probative value depends on the unique circumstances of each case. Id. The admissibility of past character to prove present character depends on whether, "in the discretion of the trial court, the contacts on which the opinion is based are frequent enough and recent enough to have probative value to the testimony given in court." State v. Maxwell , 172 Or.App. 142 , 18 P.3d 438 , 446-47 (2001) (emphasis in original).

In State v. Colon , 251 Or.App. 714 , 284 P.3d 589 , 594 (2012), the Court of Appeals of Oregon explained that to satisfy this standard, a party must show "adequate contacts" between the witnesses to allow the impeaching witness to "form a current personal opinion of the [other's] character for truthfulness." In Maxwell , 18 P.3d at 446 , the Court of Appeals of Oregon concluded that the trial court abused its discretion when it found that a witness at a 1997 trial who had personal contact with the other witness 40 to 50 times from 1994 to 1996 lacked an adequate basis to form an opinion of her character for truthfulness. In Colon , 284 P.3d at 594 , the same court determined that the trial court abused its discretion in concluding that the defendant had not laid a sufficient foundation when the witness had known the complainant his whole life, had spent substantial time with her, and had seen her near the time of the alleged assault that was the subject of trial. On the other hand, in State v. Paniagua , 268 Or.App. 284 , 341 P.3d 906 , 910 (2014), the Court of Appeals of Oregon determined that a trial court did not abuse its discretion in excluding opinion testimony when the witness had limited contact with the individual to be impeached in the past year, there was no testimony about the nature of their contacts earlier in their acquaintance, and the witness formed her opinion in part based on others' assessment of the individual's character for truthfulness. See also State v. Lopes , 767 A.2d 673 , 677 (R.I. 2001) (trial court did not abuse discretion excluding opinions of two adult witnesses that defendant was trustworthy with children because opinions arose from interactions 14 years before trial and witnesses had no knowledge of defendant's current interactions with children); State v. Goodnow , 162 Vt. 527 , 649 A.2d 752 , 755 (1994) (no abuse of discretion to exclude opinion about victim's character for truthfulness when character witness's opinion was based on events six to eight years earlier and witness and victim had not seen each other since).

The issue, as other courts have analyzed it, does not turn on when the witness formed his opinion about the individual's character for truthfulness. Instead, it centers on whether the witness had sufficient contacts with that individual to form a personal opinion, and if the contacts were recent enough to be probative of the individual's character for truthfulness. Applying a similar analysis here, we evaluate whether it was within the trial court's discretion to conclude that, because K.C. last resided in the Devincentz home 14 months before trial, 13 Joshua's opinion was too distant to be probative of her character for truthfulness. We review the trial court's rulings on these matters for an abuse of discretion.

See Durkin , 284 Md. at 453 , 397 A.2d 600 . Under such standard, we do not reverse "simply because the appellate court would not have made the same ruling." North v. North , 102 Md. App. 1 , 14, 648 A.2d 1025 (1994). Rather, the trial court's decision must be "well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable." Id. A court abuses its discretion when: the ruling under consideration appears to have been made on untenable grounds, when the ruling is clearly against the logic and effect of facts and inferences before the court, when the ruling is clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result, when the ruling is violative of fact and logic, or when it constitutes an untenable judicial act that defies reason and works an injustice.

Id. at 13-14 , 648 A.2d 1025 (cleaned up). As we explained above, the testimony established the length and nature of Joshua and K.C.'s relationship and that it was the kind of relationship that would lend itself to assessing the character of another for truthfulness. See Turning Bear , 357 F.3d at 734 . Joshua's opinion about K.C.'s character for truthfulness arose from a time pertinent to trial-when K.C. resided in the Devincentz household.

His current opinion of K.C.'s veracity was necessarily based on past events. See Fallin , 460 Md. at 153 -55 , 188 A.3d 988 , 2018 WL 3410022 , at ¹² ; Thomas , 113 P.2d at 77 ; 1 McCormick , supra , at § 43, at 282. It is difficult to see how, under these circumstances, 14 months could tenably be seen as so distant that it rendered Joshua's testimony about K.C.'s character too remote to be probative. Decisions from Maryland and other jurisdictions reflect that character simply does not change so fast (if at all), that, for legal purposes, a year can be deemed too remote.

For example, in Jensen , 355 Md. at 695 -96 , 736 A.2d 307 , the witness offered an opinion of another's character for truthfulness based on contacts approximately a year before trial. See also Colon , 284 P.3d at 594 ; Maxwell , 18 P.3d at 445 -46 . For this reason, we hold that to the extent the trial court excluded Joshua's opinion for lack of an adequate basis, it was an abuse of discretion to do so. In addition to an adequate basis, CJP § 9-115 requires that character evidence be relevant to a proceeding .

Relevant evidence is evidence that has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Md. Rule 5-401. We have recognized that a witness's credibility is always relevant. Smith v. State , 273 Md. 152 , 157, 328 A.2d 274 (1974). When the trier of fact must rely primarily-if not solely-on witness testimony to assess guilt or innocence, credibility takes on greater importance.

See State v. Cox , 298 Md. 173 , 185, 468 A.2d 319 (1983). Here, Joshua's opinion about K.C.'s character for truthfulness was unquestionably relevant for the jury's determination of whether K.C.'s testimony was credible. See Fallin , 460 Md. at 153 -55 , 188 A.3d 988 , 2018 WL 3410022 , at ¹². King v. State , 407 Md. 682 , 706-07, 967 A.2d 790 (2009), is also instructive.

Darryl King was tried for the attempted murder of Kevin Phillips. The State's primary witnesses were Phillips, and his fiancé, Terri Lagarde. King's theory of defense was that Phillips and Lagarde falsely implicated him in the shooting because of interpersonal difficulties. Id. at 686-87 , 967 A.2d 790 .

King successfully impeached Phillips with a felony conviction, id. at 690 , 967 A.2d 790 , and similarly sought to impeach Lagarde. The trial court denied the impeachment, concluding that the danger of unfair prejudice outweighed any probative value. Id. at 692-93 , 967 A.2d 790 . We reversed, holding that the trial court abused its discretion when it did not permit King to impeach Lagarde because the court did not consider significant aspects of the record in reaching its decision.

Id. at 706-07 , 967 A.2d 790 . As in this case, the State constructed its case based on witness testimony and there was no forensic evidence. Id. at 707 , 967 A.2d 790 . Thus, like here, impeachment had high probative value.

Id. at 702 , 967 A.2d 790 . Also, Phillips's narrative was "not consistent or solid," so Lagarde's corroboration was significant. Id. at 707 , 967 A.2d 790 . Lagarde's relationship to Phillips offered a possible motive to prevaricate about the circumstances of the shooting, and her conduct at the time of the shooting was unusual.

Here, the evidence at trial established that the length and nature of Joshua and K.C.'s acquaintance was one that would permit Joshua to form an opinion about K.C.'s character for truthfulness. As we have discussed, living in the same household with K.C. for six years provided ample basis for Joshua's opinion. Devincentz was, under CJP § 9-115, entitled to "elicit the personal opinion of his witnesses to prove the character of the witness against him[,]" provided he satisfied the statute's conditions. Void , 325 Md. at 391 -92 , 601 A.2d 124 ; see also Jensen , 355 Md. at 708 , 736 A.2d 307 (trial court abused discretion by limiting witness's testimony to description of acquaintance and conclusion that he was a liar because Md. Rule 5-608 and CJP § 9-115 offer witnesses "latitude" in explaining basis for opinion).

Further, K.C.'s credibility was integral to the proceeding-as both the State and Devincentz recognized. We conclude that the decision to exclude Joshua's opinion for lack of an adequate basis was inconsistent with the available facts in the record. See King , 407 Md. at 707 , 967 A.2d 790 . Accordingly, we hold that the trial court abused its discretion when it excluded Joshua's testimony.

We next consider whether the trial court erred in excluding Joshua's testimony about a fight between K.C. and Devincentz, and K.C.'s implied threat to do things that would get Devincentz in trouble. Joshua's Testimony About the Fight and K.C.'s Implied Threat Devincentz argues that the Circuit Court should not have sustained the State's objections to Joshua's testimony that K.C. "was yelling and screaming and saying things that she could do that would get him in trouble." Devincentz maintains that such testimony is admissible nonhearsay evidence of bias because it was not offered for the truth of the matter asserted, and bias is always relevant. 14 The State responds that Joshua's testimony was inadmissible hearsay because it was offered for the truth of the matter asserted-that K.C. would get Devincentz in trouble. Although we ordinarily apply the abuse of discretion standard when reviewing evidentiary rulings, whether "evidence is hearsay is an issue of law reviewed de novo ." Bernadyn v. State , 390 Md. 1 , 8, 887 A.2d 602 (2005).

Hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Md. Rule 5-801(c). In any hearsay analysis, the first step is to identify what the extrajudicial statement was offered to prove. Bernadyn , 390 Md. at 9 , 887 A.2d 602 . If a declaration is not "offered for the truth of the matter asserted, it is not hearsay and it will not be excluded under the hearsay rule." Stoddard v. State , 389 Md. 681 , 689, 887 A.2d 564 (2005).

Joshua testified that he witnessed the dispute, and that "[K.C.] was unhappy with my father's decision on the argument. And once [the argument] was resolved by a third party, she was yelling and screaming and saying things that she could do that would get him in trouble ." 15 (Emphasis added). He had first-hand knowledge, based on his observations, about K.C.'s behavior during the fight. See Walker v. State , 373 Md. 360 , 388 n.8, 818 A.2d 1078 (2003) ("[T]he threshold standards for calling any fact witness are merely that the witness have personal knowledge of the matter attested to and that the matter be relevant to the case at hand.").

Devincentz's defense was that K.C. was not credible because she disliked Devincentz and the rules he imposed, and she used allegations of criminal conduct to leave his house and return to Pennsylvania. 16 Defense counsel contended that the argument "goes to her motive as to why we're here." He proffered that Devincentz told K.C. to return the phone, triggering an argument that Joshua witnessed. Ultimately, Devincentz sought to prove not that K.C. could, in fact, get him in trouble-that was hardly in dispute-but rather that her allegations stemmed from bias. Maryland Rule 5-616(b)(3) permits impeachment by "[e]xtrinsic evidence