Gaerian v. State

BARBERA, Judge. Appellant, Zoilo Camposano Gaerian, a/k/a Zoilan Gaerian, stands convicted by a jury of child abuse and second degree assault for having sexually assaulted his half-sister, ten years younger than he, from the time she was four or five years old until she was thirteen. One of the issues presented by this appeal is the admissibility of the victim’s report of the assaults to her best friend. As recounted by the friend, the victim reported in October 2001, that she was being sexually assaulted by her older brother in October 2001.

The tenor of the complaint suggested that the assaultive conduct might have occurred more than once during that October, but the friend was unable to be ⁵³¹ more specific, either about when the victim made the report or when the sexual assault or assaults occurred. We are asked to decide whether this complaint was “prompt,” as that term is used in the exception to the hearsay rule that permits admission into evidence of a statement by a declarant who testifies and is subject to cross-examination, if it “is one of prompt complaint of sexually assaultive behavior to which the declarant was subjected....” Md. Rule 5-802.1(d). As we shall discuss, the complaint in this case satisfies the test that has been developed in Maryland for ascertaining when a complaint is “prompt” for purposes of Rule 5—802.1(d). We hold that the court did not abuse its discretion in allowing the report to be admitted into evidence.

BACKGROUND FACTS AND LEGAL PROCEEDINGS The victim in this case, May N., was born on May 13, 1987. At all times relevant, May lived in Fort Washington with her parents, appellant, and sometimes her sister and godparents. May refers to appellant as her brother, and appellant refers to May as his half-sister. The events leading to the charges against appellant came to the attention of the authorities in January 2002, when two teenagers claiming to be relatives of May attempted to remove her from her classes at the high school.

Pursuing the teenagers’ request, the school’s registrar spoke with May and, as a result of that conversation, took her to see the school’s guidance counselor, and called Child Protective Services. The Prince George’s County Police Department became involved in the case. Detective Chrystal Tibbs interviewed May and Conchita N., May’s mother. In a written statement provided to Detective Tibbs, May reported that appellant had been sexually abusing her since she was four or five years old.

In July 2002, appellant was charged in a seven-count indictment with child abuse, second degree rape, sexual offenses in various degrees, and second degree assault. Appellant pleaded not guilty to all charges and, on January 7, 2003, the case ⁵³² came on for a jury trial in the Circuit Court for Prince George’s County. May, then fifteen years old, testified about appellant’s sexual assaults upon her. She testified that “sometimes at night, probably around fifth grade, [appellant] would come into my room and touch me, and I would realize someone was there, but I knew it was him.” She elaborated: “[H]e would come in the bed with me and then say that he was going to just check for lumps or whatever to see if I had breast cancer, and not to tell Mom and Dad because they would get mad.” Appellant would touch her breasts and insert his finger in her vagina to “check for lumps,” telling her that “it had to hurt to show that [she] didn’t have the cancer.” May testified that, as she grew older, she was forced to have intercourse with appellant.

The first time this occurred, appellant’s former girlfriend, Christina K. (whom May referred to as “Christy”), was present. This was the only time anyone else was present during the assaults. May explained that she did not report the assaults to her parents because appellant scared her with threats that “some-' thing would happen to [them] if [she] told, or that [her] dad would get in a fight with him and it wouldn’t really be [appellant’s] fault but [the fault of] the spirits.” May added: “[Appellant] said that if he were to go to jail—if I told, that my mom would become pregnant and it wouldn’t be my dad’s, and that Dad would just go crazy, or something would come over Dad, and Dad would be after me.” May testified that her last sexual contact with appellant occurred in October 2001.

May testified that she told her best friend, Jennifer L., what was going on. May explained: “I never told her in detail. I just told her that sometimes my brother would come into the room.” She added that she eventually told her cousins, her counselor, and her parents, and provided a detective with a written statement. May was cross-examined about the statement she had given to the police.

May had written in that statement that she was four or five years old when appellant first assaulted her. She ⁵³³ also wrote that Christy had said that she had talked with a ghost, “Sib”; that it was “good for Sib and appellant”; and that May was directed by Christy to take appellant’s hand and rub it over May’s body and kiss the palm of his hand. And she wrote that she had to suck appellant’s penis that night, and that Christy was hiding in the closet while this was happening. The State called Jennifer to testify about May’s report to her of appellant’s sexual assaults.

Over appellant’s objection (about which we shall say more later), the prosecution was permitted to ask Jennifer: “[Directing your attention to October 2001, what specifically did May tell you was going on at that time with her brother?”. To this question, Jennifer replied that May “would tell [Jennifer that appellant] would force her to have intercourse or any type of, like, oral sex or anything like that.” Jennifer confirmed, on cross-examination, that the acts May reported to her had occurred in October 2001. Detective Chrystal Tibbs, a nine-year veteran of the Prince George’s County Police Department, testified that she had investigated approximately 100 cases while assigned to the Sex-Victim Unit. The State attempted on several occasions to elicit from Detective Tibbs whether, in her experience, it was unusual for victims to delay in reporting sexual assaults.

On the first several of these attempts, appellant’s objections were sustained. Eventually, the State posed the question, “Based upon your training and experience, have you had occasion where victims of sexual abuse have not reported the abuse immediately?” Detective Tibbs answered “Yes.” Defense counsel objected and moved to strike the answer, to which the court responded, “But it wasn’t timely.” In his defense case, appellant called Christina K., his former girlfriend, who testified that she began dating appellant when she was seventeen years old, had “practically lived with” appellant while they dated, and knew May “a little bit,” but that they “didn’t really talk much.” Christina denied ever having assisted, encouraged, or watched appellant engage May ⁵³⁴ in sexual acts. Appellant took the stand and denied committing any sexual acts with May. The jury convicted appellant of child abuse and second degree assault, for which he was sentenced to a total of ten years’ incarceration with all but four years suspended, and five years of probation.

Appellant asks two questions on appeal: I. Did the trial court err when it permitted a friend of the complaining witness to testify that the complaining witness told her that Appellant had forced her to have intercourse with him, when the complaining witness’s account to her friend did not qualify as a “prompt complaint of sexually assaultive behavior” under Rule 5-802.1?

II

Did the trial court err when it permitted the investigating detective to offer irrelevant testimony about victims of sexual abuse in general based on her previous investigations of sexual abuse cases? DISCUSSION I. Appellant’s first challenge relates to the court’s allowing Jennifer to testify about May’s complaint that appellant was sexually abusing her. The court held a hearing outside the jury’s presence to determine whether the anticipated testimony constituted a prompt complaint of a sexual assault. After discussing the issue at some length, the prosecutor proffered that Jennifer would testify that, in October 2001, May said that appellant was having vaginal and oral sex with her during that month.

On hearing this, the court ruled: “If I recall, the victim testified that the last sexual contact with the Defendant was in October of 2001. Provided that [the prosecutor] can narrow and frame his question appropriately to the ■witness, I’m going to allow her to communicate it.” 1 ⁵³⁵ The prosecutor’s direct examination of Jennifer resumed with the following: Q Now, [Jennifer], directing your attention to October 2001, what specifically did May tell you was going on at that time with her brother? A She would tell me about how he would force her to have intercourse or any type of, like, oral sex or anything like that. Q Intercourse and oral sex?

A Yes. Q Does she mention anything else during that time frame? A No. Appellant presents two arguments for why, in his view, the court erred in admitting Jennifer’s testimony. He argues first that the hearsay exception for prompt complaints of sexually assaultive behavior is inapplicable to situations in which there is ongoing sexual abuse.

Appellant specifies that this exception “should be limited to complaints that are made promptly after the first act of abuse.” Appellant also argues that, even if the exception were applicable to complaints made after the onset of a continuing course of sexual abuse, the exception does not apply to May’s complaint to Jennifer, because it was not made promptly. We shall address each of these contentions, but we begin with a brief review of the hearsay exception at issue. A. Hearsay is defined as “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. Hearsay is considered to be generally ⁵³⁶ unreliable and thus inadmissible.

Md. Rule 5-802. “A hearsay statement may be admissible, however, under certain recognized exceptions to the rule if ‘circumstances provide the “requisite indicia of trustworthiness concerning the truthfulness of the statement.” ’ ” Parker v. State, 156 Md.App. 252, 259 , 846 A.2d 485 , cert. denied, 382 Md. 347 , 855 A.2d 350 (2004) (citations omitted). Maryland law recognizes certain exceptions to the hearsay rule, some of which are set forth in Maryland Rule 5-802.1. Pertinent here is subsection (d), which, together with the Rule’s introductory language, reads: The following statements previously made by a witness who testifies at the trial or hearing and who is subject to cross-examination concerning the statement are not excluded by the hearsay rule: * * * (d) A statement that is one of prompt complaint of sexually assaultive behavior to which the declarant was subjected if the statement is consistent with the declarant’s testimony[.] Rule 5-802.1 took effect on July 1, 1994. The Rule borrows, with some change, portions of Federal Rules 801 and 803.

The prompt complaint exception contained in subsection (d), however, is not found in the Federal Rules. The Reporter’s Note accompanying proposed Rule 5-802.1 in the 125th Report of the Standing Committee on Rules of Practice and Procedure states that the prompt complaint exception in subsection (d) of the Maryland rule is based on Article 801(D)(1)(d) of the Louisiana Code of Evidence. 2 20 ⁵³⁷ Md. Reg. pt. II at P-21 (July 23, 1993) (Issue 15). Maryland’s version differs from the Louisiana provision in that the Maryland rule uses the adjective “prompt,” instead of “initial,” to “codif[y] Maryland case law with regard to rape.” See id.; see also Nelson v. State, 137 Md.App. 402, 409-11 , 768 A.2d 738 (2001) (noting that Rule 5-802.1 embodies legal principles that have existed for over a century, and stating that “[t]he only arguable change that the rule made to pre-existing Maryland common law was in providing that this particular exemption from the Rule Against Hearsay would apply in civil, as well as criminal, cases”).

The purpose of Maryland’s prompt complaint of sexual assault exception to the rule against hearsay “is to corroborate the victim’s testimony, and not simply to ‘combat stereotypes held by jurors regarding nonreporting victims.’ ” Parker, 156 Md.App. at 267 , 846 A.2d 485 (citation omitted). The victim’s complaint to another is admissible as substantive evidence to contradict the inference that the failure to complain was inconsistent with the victim’s trial testimony concerning the attack. Nelson, 137 Md.App. at 411 , 768 A.2d 738 (stating that “the legally sanctioned function of the prompt complaint of a sexual attack is to give added weight to the credibility of the victim”). For more than 100 years before the Court of Appeals’ adoption of Rule 5-802.1, Maryland’s common law rule was that “a victim’s timely complaint of a sexual attack is admissible as part of the State’s case-in-chief.” Nelson, 137 Md.App. at 409-10 , 768 A.2d 738 (internal quotation marks and citation omitted).

As the Court of Appeals said in State v. Werner, 302 Md. 550, 563 , 489 A.2d 1119 (1985), “In prosecutions for sex offenses, evidence of the victim’s complaint, coupled with the circumstances of the complaint, is admissible as part of the prosecution’s case if the complaint was made in a recent period of time after the offense, but such evidence is inadmissible as part of the prosecution’s case in chief if the complaint ⁵³⁸ was not made at the time of or relatively soon after the crime.” “What the fact of a timely complaint forestalls or counteracts is frequently a defense based upon consent.” Cole v. State, 83 Md.App. 279, 290 , 574 A.2d 326 , cert. denied, 321 Md. 68 , 580 A.2d 1077 (1990). But “the salutary forestalling effect is not limited to cases where consent is asserted as a defense but also serves to forestall challenges to the very occurrence of the sexual event itself.” Nelson, 137 Md.App. at 415-16 , 768 A.2d 738 . A prompt complaint of sexual assault has several limitations on its admissibility. The victim must testify, the complaint must be timely, and references to the complaint “ ‘may be restricted to the fact that the complaint was made, the circumstances under which it was made, and the identification of the culprit, rather than recounting the substance of the complaint in full detail.’ ” Id. at 411 , 768 A.2d 738 (quoting Cole v. State, 83 Md.App. at 289 , 574 A.2d 326 ); Hyman v. State, 158 Md.App. 618, 634 , 857 A.2d 1166 (2004).

With this basic summary of the prompt complaint exception in mind, we turn now to appellant’s specific challenges to the admission of the evidence. B. Appellant first argues that the prompt complaint exception does not apply to situations involving ongoing abuse. In particular, he asserts that May’s decision to tell Jennifer in October 2001 that appellant was abusing her was not a prompt complaint of sexually assaultive behavior because the State alleged that abuse began, not in October 2001, when May was in the ninth grade, but years earlier. We do not agree that the scope of Rule 5-802.1(d) is so limited.

Nowhere in any case of which we are aware does the applicability of either Rule 5-802.1(d) or Maryland’s common law rule hinge upon the victim reporting the “first act of abuse.” Indeed, we fail to see how the rationale for the ⁵³⁹ admission of a prompt complaint of sexual assault—to contradict the inference that the failure to complain was inconsistent with the victim’s trial testimony concerning the attack and to give added weight to the credibility of the victim—would apply only to isolated instances of abuse, and not to continuing sexual abuse. Moreover, appellant’s argument that Rule 5-802.1 is inapplicable to instances of continuing abuse runs contrary to our decision in Robinson v. State, 151 Md.App. 384 , 827 A.2d 167 , cert. denied, 377 Md. 276 , 833 A.2d 32 (2003). There, the victim was twice abused by the same perpetrator, but did not report the abuse until after the second instance of abuse. 151 Md.App. at 388-90 , 827 A.2d 167 . Although we were not presented in Robinson with the same argument that is being made here, we nonetheless held that the victim’s “first disclosure at approximately fifteen hours after the first rape, and five hours after the second rape, [were] well within the standard of promptness.. .. ” Id. at 393 , 827 A.2d 167 .

We recently rejected the contention that only the first prompt complaint of the sexual assault is admissible under Md. Rule 5-802.1(d). See Parker, 156 Md.App. at 262-67 , 846 A.2d 485 . Judge Salmon, writing for the Court in Parker , explained that the rule “contains no express limitation on the number of complaints made by the victim that may be admitted at trial, and we see no valid basis to engraft such an implied limitation onto the rule.” Id. at 265 , 846 A.2d 485 . As we were in Parker , we are loathe to engraft upon Rule 5-802.1(d) a limitation that is not expressed by its language.

There is nothing in the wording of the rule that restricts its applicability to reports that are made after the initial act of sexual assault. And the fact that the Court of Appeals adopted the term “prompt,” rather than “initial” (the term used in the Louisiana provision upon which Rule 5-802.1(d) is based), further undermines appellant’s