Gordon v. State

WATTS, J. After a trial held on December 7, 2010, and December 8, 2010, a jury sitting in the Circuit Court for Charles County convicted Michael David Gordon, appellant, of third-degree sexual offense and sexual solicitation of a minor. See Md. Code Ann., Crim. Law Art. (“C.L.”) § 3-307(a)(4) (third-degree sexual offense); and C.L. § 3-324 (sexual solicitation of a minor). On February 8, 2011, the circuit court sentenced ³³⁰ appellant to ten years of imprisonment, with all but one year suspended, and five years of supervised probation. 1 Appellant noted an appeal, raising two issues, which we quote: I. Did the trial court err in allowing the State to prove' the appellant’s age, which was a material element of the case, through a detective’s inadmissible hearsay testimony?

II

Did the trial court err by permitting the State to prove the contents of the appellant’s driver’s license through parol testimony instead of through the original copy of the driver’s license? We answer both questions in the negative. We, therefore, affirm the judgments of conviction. FACTUAL AND PROCEDURAL BACKGROUND The acts for which appellant was convicted occurred on January 10, 2010, at a Pacific Sunwear Store where appellant worked.

The day before the incident at issue in this case, Detective Klezia and another detective of the Charles County Sheriff’s Office went to the store to speak with appellant about allegations not connected to this case. During the interview, Detective Klezia asked appellant for identification and appellant responded by giving Detective Klezia his Florida driver’s license. On January 10, 2010, Amanda M. visited the Pacific Sun-wear Store, shopping with her friend Courtney S. Amanda M. and appellant became engaged in a conversation as she shopped. At the time, Amanda M. was fourteen-years-old.

Amanda M. testified that during her conversation with appellant on January 10, 2010, he told her he was seventeen years old. In an interview on March 31, 2010, Amanda M. advised detectives that appellant told her he was twenty years old. Amanda M. testified that on January 10, 2010, she ³³¹ purchased perfume from the store but, after leaving the store, discovered the perfume was not in her shopping bag. Amanda M. returned to the store to retrieve the perfume later the same day.

Amanda M. testified that she did not see appellant on the second trip, and that she and Courtney S. returned later to the store a third time. As she was in the store on the third occasion, Amanda M. was trying on pants in a fitting room and asked appellant to bring her a pair in a different size. According to Amanda M., when appellant returned to the fitting room with new pants, he asked to see and touch her breasts and “lower areas.” According to Amanda M., appellant then put his hand in her pants and began to “finger” her. 2 Amanda M. testified that while appellant was “fingering” her, he asked that she give him oral sex. Amanda M. declined, but testified, that she kissed appellant’s penis.

Appellant’s counsel contended after trial and before this Court, that prior to trial, the prosecutor had not divulged information concerning Amanda M. allegedly having performed this act. On January 14, 2010, appellant, accompanied by his fiancee, his fiancee’s mother, and his daughter, was interviewed by Detective Klezia at the Charles County Sheriffs Office. Detective Klezia had telephoned to arrange the interview and appellant volunteered to drive to the station. During the interview, Detective Klezia asked appellant about the same incident that was discussed during his January 9, 2010, visit to the store-an incident unrelated to this case.

During the interview, Detective Klezia asked for identification, and appellant again provided the Florida driver’s license. At trial, during direct examination, the prosecutor asked Detective Klezia whether he knew appellant’s age. Detective Klezia responded that he had knowledge of appellant’s date of birth based on having viewed his “identification.” Appellant’s counsel objected when the prosecutor asked Detective Klezia ³³² how old appellant was, and the objection was sustained. The prosecutor again asked the detective for appellant’s age, and the following exchange occurred: [PROSECUTOR]: And the information that you obtained from [appellant] how old was [appellant]? [APPELLANT’S COUNSEL]: Objection.

THE COURT: Detective is—am I correct to assume you never asked him his—his—his birth? [DETECTIVE KLEZIA]—I don’t recall specifically asking him for a date of birth but. THE COURT: All Right. And the only information you have is—is what he showed you; some document he showed you, a Driver’s license? [DETECTIVE KLEZIA]: Yes. Yes sir. [PROSECUTOR]: Your Honor, may Counsel approach?

THE COURT: All right. Counsel please approach. (Counsel approaches the bench) [PROSECUTOR]: Your Honor, the information was provided to him by [appellant], [APPELLANT’S COUNSEL]: Yes, but if we recall from the Motion Hearing he also had to show that information even to—to abide by the orders of the police. That if you recall the Motion Hearing he had to present an I.D. to get into the headquarters.

THE COURT: Well, the basis of the objection is what? [APPELLANT’S COUNSEL]: Its hearsay. [PROSECUTOR]: And my response is that this would be admission by party (unintelligible). [APPELLANT’S COUNSEL]: It’s not an admission. [PROSECUTOR]: It would be an adoptive admission. [APPELLANT’S COUNSEL]: He never—he never—. [PROSECUTOR]: He’s—he’s providing the identification on two separate occasions showing his personal identification. ³³³ [APPELLANT’S COUNSEL]: He never was asked to confirm it. At this point, Detective Klezia and the jury were excused, and the following exchange occurred: [PROSECUTOR]: ... Pm looking at [Maryland Rule] 5-803 and it looks like A(2). That’s a statement by a party opponent—opponent. [PROSECUTOR]: “A statement of which the party has manifested an adoption on belief and its truth.” Detective Klezia asked him for identification. [Appellant] provides this identification on two separate occasions....

The fact that you’re providing it means you’re manifesting a belief that this is a true document. The information is here—in here, is true. [APPELLANT’S COUNSEL]: It’s not a statement. [PROSECUTOR]: If it’s not a statement then its not hearsay. But this is something he’s manifesting a belief in. He’s asking for identification from [appellant]. [Appellant] provides this information to the Detective.

THE COURT: [Appellant’s counsel]—. [APPELLANT’S COUNSEL]: There’s better evidence of this. There’s (unintelligible) better evidence. THE COURT: Well, there—there may very well be better evidence. The question is, is this admissible evidence. [APPELLANT’S COUNSEL]: No, Your Honor.

This is-he simply-he never adopted this as his Driver’s License. He was asked to show identification and if you believe the witness that this is what he showed.... The circuit court permitted the testimony, ruling as follows: THE COURT: All right. I’m going to overrule the objection.

I’ve had a chance to look at the Rule which I think is the appropriate Rule, 5-803. ³³⁴ “Hearsay Exceptions, Unavailability of Declarant not Required.” “The following are not excluded by the hearsay rule even though the declarant is available as a witness.” I think this word available—has to be determined in the context of—of Rule—the next Rule, 5-804, “Declarant Available” which has some circumstances where the declar-ant may be unavailable. Here this is the—the declarant, if you will, is the Florida Motor Vehicle Administration—which would not be unavailable which would technically be available. But I think that—[the prosecution] is correct in my opinion anyways. It’s a—statement which the—the Florida Motor Vehicle Administration has made about [appellant] and his age.

And the party has manifested an adoption or belief in its truth and I think that—the party in this case would be [appellant] has manifested by presenting his conduct that— that he believes it to be true so he’s adopted it. I—I think that’s what this Rule has to—has to—deal with. So [appellant’s counsel] I’m gonna overrule your objection. Is there anything else you want to state for the record?

I think you’ve stated your—your reasons pretty clearly but anything else? [APPELLANT’S COUNSEL]: I did, Your Honor. Obviously I—if there’s any further questions about his age if the Court would recognize a continuing objection. THE COURT: It will certainly—we’ll note that. THE COURT: Members of the jury I—I’ve—I’m gonna overrule the objection that had been made and [prosecutor] is gonna continue.

Go ahead [prosecutor]. ³³⁵ [PROSECUTOR]: So Detective Klezia, based on the identification provided to you twice by [appellant], what is [appellant’s] date of birth? [DETECTIVE KLEZIA]: 5/23/1982. After the jury was excused for deliberation, the following exchange occurred between the circuit court, the prosecutor, and appellant’s counsel: THE COURT: Counsel, Before we—we recess I just have one other observation I want to put on the record and I’ll give you a chance to—to comment on it if you—if you "wish. You don’t—you don’t have to. The big—legal issue in this case as—as far as—that I found troubling I guess, is this—the age of the—[appellant] coming in off the—off the Driver’s License and the objection that it’d be hearsay.

I’ve already made a ruling on that. But I—I—but I’ve been thinking about it ever since then and I do feel that—I think it’s appropriate if—if this is ever reviewed and it may or may not be and we just never—never know that—the Court put on that—it—it—from the Court’s observation, the age of [appellant] other than it’s an element that has to be proven but it doesn’t really seem to be something that’s disputed. And I think that—that that may be something that the Court should really be putting on the record at this point so that—Appellate Court reviewing this has—has full context of what’s going on here. And it’s almost to the point where the—the—the Court feels that—you could almost take judicial notice of [appellant’s] age.

I know in the Application for Statement of Charges [t]he Date of Birth is listed as May 23rd, '82. I note in the Indictment his Date of Birth is listed as May 23rd, 1982. I note in the—all of the District Court documents I might just sort of refer as to that—and I don’t know whether it’s all picked off the same computer once it’s entered. It—it all pops up May 23rd, 1982. ³³⁶ But I also note that in the—the—the bond that was filed here, Affidavit of the Bail Bondsman, it looks like—and I can’t read the signature on—on this affidavit of April 30th, 2010, it’s also handwritten in, May 23rd, '82.

So I—I—I feel that—some context as to this age— question is—is appropriate and those are my observations on it. I don’t know if either side wishes to—I think you’re— you’re positions are clear certainly [appellant’s counsel] and [prosecutor], but I don’t know if anybody else wants to comment further at this point. [PROSECUTOR]: No, Your Honor. [APPELLANT’S COUNSEL]: Well, Your Honor, I—I think I should respond somewhat. THE COURT: Sure. Go ahead.

Go ahead, please. Yes. [APPELLANT’S COUNSEL]: Because I chose not to argue the age issue to the jury—. THE COURT: Yes. Please. [APPELLANT’S COUNSEL]: Doesn’t mean that I waived it.

I—I felt sort of—to go back to what I said to the jury, there were bigger fish to fry. I suppose I could have argued that. I never considered that I waived it. I just chose not to argue it—.

THE COURT: I didn’t meant to imply that—. [APPELLANT’S COUNSEL]: To the jury. THE COURT: But I—But I think it’s good to put that on the record. Pm sorry. [APPELLANT’S COUNSEL]: Moreover, none of those documents that Your Honor just mentioned are in the evidence. THE COURT: No, that’s correct.

Appellant was convicted of a third-degree sexual offense and sexual solicitation of a minor. Following his conviction, appellant filed a motion for new trial alleging that the State failed to disclose the conduct which constituted the basis of the third-degree sexual offense conviction. The court denied the motion. Appellant noted a timely appeal. ³³⁷ DISCUSSION I. Appellant contends that the circuit court erred in allowing the State to prove his age, a material element of the case, through Detective Klezia’s testimony.

Appellant argues that Detective Klezia’s testimony regarding his age was based solely on information the detective observed on appellant’s Florida driver’s license, and as such, constituted inadmissible hearsay. Appellant argues that Detective Klezia’s testimony as to his age did not fall within any exception to the hearsay rule set forth in Md. Rule 5-803. Specifically, appellant contends that Detective Klezia’s testimony did not satisfy Md. Rule 5-803(a)(2), which provides an exception to the hearsay rule for a “statement that is offered against a party, and is ‘a statement of which the party has manifested an adoption or belief in its truth.’ ” Appellant maintains that to satisfy this exception the person making the statement must expressly adopt the statement. Appellant argues he did not expressly, or implicitly, manifest “an adoption or belief’ in the truth of the date of birth displayed on the Florida license.

Appellant contends that he “merely presented his license in submission to [an order from a law enforcement officer].” The State responds that Detective Klezia’s testimony regarding the date of birth on appellant’s Florida driver’s license was properly admitted under the adoptive admission exception to the hearsay rule. The State maintains that by presenting the license to Detective Klezia as evidence of his identity, “including [his] name and age,” appellant “‘manifested an adoption or belief in the truth of that information.” The State points out that, at trial, appellant failed to dispute the “trustworthiness” of the license. We agree with the State. Standard of Review In Bernadyn v. State, 390 Md. 1, 7-8 , 887 A.2d 602 (2005), the Court of Appeals explained the standard of review for hearsay determinations as follows: ³³⁸ We review rulings on the admissibility of evidence ordinarily on an abuse of discretion standard.

Review of the admissibility of evidence which is hearsay is different. Hearsay, under our rules, must be excluded as evidence at trial, unless it falls within an exception to the hearsay rule excluding such evidence or is “permitted by applicable constitutional provisions or statutes.” Md. Rule 5-802. Thus, a circuit court has no discretion to admit hearsay in the absence of a provision providing for its admissibility. Whether evidence is hearsay is an issue of law reviewed de novo.

(Emphasis in original) (internal citation omitted). Hearsay Generally Md. Rule 5-801 defines hearsay 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.” “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) (internal quotation marks omitted). The hearsay exception set forth in Md. Rule 5-803(a)(2) provides: The following are not excluded by the hearsay rule, even though the declarant is available as a witness: (a) Statement by party-opponent. A statement that is offered against a party and is: (2) A statement of which the party has manifested an adoption or belief in its truth[.] “Maryland Rule 5-803(a) permits the introduction of a hearsay statement that is offered against a party and is either the party’s own statement or one in ‘which the party has manifested an adoption or belief in its truth.’ ” Armstead v. ³³⁹ State, 195 Md.App. 599, 631 , 7 A.3d 169 (2010), cert. denied, 418 Md. 191 , 13 A.3d 798 (2011); see also State v. Brown, 327 Md. 81, 88 , 607 A.2d 923 (1992) (“[A]n admission is a statement of pertinent facts which, in connection with proof of other facts, tends to prove guilt[.]” (citation and quotation marks omitted)).

The “express” adoption of an admission is not limited to a spoken or written adoption. In Brandon v. Molesworth, 104 Md.App. 167 , 655 A.2d 1292 (1995), aff'd in part and rev’d in part on other grounds, 341 Md. 621 , 672 A.2d 608 (1996), this Court extended the definition to non-spoken forms of communications that manifest a similarly unequivocal intent. In Brandon, 104 Md.App. at 176-77 , 655 A.2d 1292 , a wrongful discharge case, where plaintiff asked a coworker, in the presence of the defendant, employer, if she was being fired because she was a woman, the coworker replied, “[y]es, that’s part of it,” and the defendant did not say anything, but nodded in agreement. We concluded: We cannot see how [co-worker’s] statement could fall outside this definition.

Assuming the truth of [plaintiffs] allegations, [defendant’s] nod clearly constituted either a manifestation of adoption or a belief in the truth of [coworker’s] statement. The only way to explain the nod— which is clearly admissible—is to introduce the statement that prompted it. Id. at 198 , 655 A.2d 1292 . “Implied Assertions” in Hearsay The Court of Appeals discussed the doctrine of “implied assertions” in hearsay in the twin cases of Bernadyn, 390 Md. 1 , 887 A.2d 602 , and Stoddard v. State, 389 Md. 681 , 887 A.2d 564 (2005), decided on the same day. In Stoddard, 389 Md. at 683 , 887 A.2d 564 , the Court of Appeals held that an eighteen-month-old child’s question—“Is Erik [the defendant] going to get me?”—was an implied assertion, and thus hearsay.

The Court explained: Jasmine’s fear of Stoddard is irrelevant unless it stems from a belief that she had seen Stoddard assault [the victim]. ³⁴⁰ Although it is conceivable that Jasmine’s fear, taken together with her presence during the relevant time frame, was circumstantial evidence that Jasmine witnessed Stoddard assault [the victim], this conceptualization is a distinction without a difference. Jasmine’s fear of Stoddard is relevant only if it is rational, i.e., only if it stems from a real-world condition or event. To rationally fear Erik Stoddard is to believe the proposition “I have a reason to fear Erik Stod-dard.” Jasmine’s belief in this proposition is relevant only if the “reason” at issue is her having witnessed Erik assaulting [the victim]. Thus, in offering Jasmine’s fear as evidence, the State implicitly would be offering Jasmine’s belief in the proposition “I have a reason to fear Erik Stoddard and that reason is that I saw him assault [the victim].” Id. at 690 , 887 A.2d 564 (footnote omitted).

The Court stated: [W]ith respect to the four testimonial