Harrison v. State

HOTTEN, J. On August 27, 2009, appellant, William Leslie Harrison, was convicted by a jury in the Circuit Court for Harford County of sexual abuse of a minor. Appellant was sentenced to ten years imprisonment, with all but five suspended. Appellant ²³⁸ noted a timely appeal, and presents two questions for review, which we quote: 1. Whether the evidence at trial was sufficient to establish that Mr. Harrison had “responsibility for supervision of a minor,” an element of sexual abuse of a minor, where the minor he hired to do yard work at his home was free to set his own hours and come and go as he pleased? 2.

Whether the Circuit Court erred by failing to instruct the jury as to the lesser included offenses of sexual offense in the third degree and sexual offense in the fourth degree, because a rational jury could have found that evidence was sufficient to convict Mr. Harrison of one or both of these lesser included offenses and acquit him of sexual abuse of a minor? For the reasons outlined below, we affirm the judgment of the circuit court. STATEMENT OF FACTS Appellant approached Mr. B., the victim’s father, during the summer of 2006 to inquire whether the victim, S.B., who was thirteen at the time, would be interested in “landscaping and general clean up.” Appellant explained that “he would watch over [S.B.]” and “teach him how to use hand tools.” S.B. was interested, so Mr. B. left a note in appellant’s mailbox stating S.B. was willing to work part-time for him. S.B. began working immediately.

His duties consisted of mulching, moving rocks, raking lily pads, cutting wood, and building a playhouse. When appellant was on vacation, or unavailable, S.B. would water the plants, paint, take care of appellant’s dog, or do “other odd jobs around the property.” S.B. stopped working for appellant during the summer of 2007 when he revealed to his mother that appellant had touched him inappropriately. S.B. advised that the touching began when he and appellant were watering flowers, and appellant used S.B.’s shirt to dry his hands. The next incident occurred when S.B. and appellant were building a playhouse.

It was getting cold, and appellant told S.B. that the best way ²³⁹ to keep his hands warm was to put them in his pants. S.B. subsequently put his hands in his pants. Appellant then put his hands in S.B.’s pants, and held S.B.’s penis for approximately 80 seconds. S.B. said this type of touching repeatedly happened after the first incident.

When Mr. B. learned about the inappropriate touching, he informed appellant that S.B. could no longer work for him, and asked him to cease further communication with S.B. Appellant ignored Mr. B.’s request, sent S.B. text messages, and left him a voicemail. He also left S.B. a birthday gift on their doorstep. The gift prompted Detective Thomas Bradley to set-up a one-party consent phone call, in which appellant stated, amongst other things, “you are the best thing going on in my life,” and “I care about you so much.” He further stated that he had been miserable for the past three months, “[n]ot because of what I did ... but because I did it.” Detective Bradley thereafter sought search warrants for appellant’s residence, his business in Bel Air, and property in Ocean Pines. Appellant was later arrested.

PROCEDURAL HISTORY On January 2, 2008, appellant was indicted on one count of sexual abuse of a minor, one count of child abuse in the second degree, and 216 counts of sexual offense in the third degree. On August 25, 2009, the day of trial, the State entered, without objection, nolle prosequi for the charges of child abuse in the second degree, and the 216 counts of sexual offense in the third degree. At the conclusion of the State’s case-in-chief, appellant moved for judgment of acquittal. Appellant alleged that the State failed to establish he was responsible for the supervision of S.B., because S.B. could come and go as he pleased, and set his own work schedule.

The State countered that there was an “acceptance of supervision for the minor child,” because S.B. worked under the direction of appellant. The circuit court denied appellant’s motion, and explained that “[i]t is clear from the evidence that the only logical inference that one ²⁴⁰ can draw” is that throughout the time S.B. worked for appellant he had “temporary custody or supervision and it was done with the knowledge of young [S.B.’s] parents.” Appellant renewed his motion for judgment of acquittal at the close of all the evidence. He presented the same arguments, but this time, emphasized that there was no evidence of express or implied acceptance of responsibility. The State, again, argued that the evidence showed that appellant was responsible for the supervision of S.B. because “the two of them would be together and that he would oversee his activities.” The State acknowledged that there was no written contract transferring “temporary supervision, care or custody,” but argued that there was an implied transfer of responsibility when appellant took care of S.B. “in [his] parents’ stead.” In denying the second motion for judgment of acquittal, the court held that testimony about the nature and extent of S.B. and appellant’s relationship, the nature of the work S.B. performed, and how often S.B. worked, demonstrated that appellant was responsible for the supervision of S.B. During the discussion of jury instructions, the court provided appellant’s counsel with a proposed instruction for sexual abuse of a minor, and the following colloquy occurred: THE COURT: Do you want me to get into the definition of fourth degree sex offense?

APPELLANT’S COUNSEL: Third and fourth degree. THE COURT: At your risk? APPELLANT’S COUNSEL: Sure because I am going to argue that to the jury. My argument to the jury is going to be he has been improperly charged, that the correct charge he should have been charged with— THE COURT: You’re not going to argue that to the jury.

I’m not going to permit it. APPELLANT’S COUNSEL: Your Honor, that’s what the testimony is. THE COURT: I am not going to permit that. You’re going to have to give me some authority as to why you can argue to a jury the State had improperly charged somebody when ²⁴¹ if that was the case you could have moved to dismiss on the grounds he was improperly charged?

APPELLANT’S COUNSEL: Your Honor, the elements haven’t been satisfied and there is some testimony a fourth degree sex offense has occurred. THE COURT: I will give them the definition of that, but you can’t argue to the jury it was improperly charged. APPELLANT’S COUNSEL: Then maybe a different way to phrase it. That he is not guilty of the charge pending against him.

THE COURT: You can do that. You can’t say he was improperly charged by the State. APPELLANT’S COUNSEL: I will say— THE COURT: You can argue that the facts don’t establish the elements necessary to establish a conviction, sure. APPELLANT’S COUNSEL: Right.

I won’t say he was improperly charged. This issue was rehashed in the following exchange: THE COURT: You can’t argue to the jury he was improperly charged. APPELLANT’S COUNSEL: I thought we agreed on that I can’t say he was improperly charged. I can say the evidence does not support a conviction for the charge pending against him.

THE COURT: You can do that. APPELLANT’S COUNSEL: And I can say to the jury I believe that the evidence supports a conviction for fourth degree— THE COURT: No, I am not going to allow that. I am telling you up front you cannot argue to the jury or suggest to the jury he should have been charged with third or fourth degree sex offense. Don’t do it.

Appellant belabored the point, and the following conversation ensued: APPELLANT’S COUNSEL: Okay. So I don’t want to be slammed down. I am still fuzzy. I can say they haven’t ²⁴² met the elements, he is guilty of other offenses, but I can’t say what those offenses are.

THE COURT: You can’t argue to the jury he was improperly charged whether you want to do it directly or indirectly- APPELLANT’S COUNSEL: But you said I could say he doesn’t meet the elements of this charge. THE COURT: Of this charge. APPELLANT’S COUNSEL: But I am not free to say there are other elements of other charges. THE COURT: No, you are not.

The circuit court ended the discussion and proceeded with instructing the jury. The case was submitted to the jury, and the jury returned a verdict of guilty for sexual abuse of a minor. Appellant noted a timely appeal. DISCUSSION I. Appellant argues that the evidence adduced at trial was insufficient to establish he was guilty of sexual abuse of a minor, because the State was unable to establish that he had “responsibility for supervision of a minor.” When reviewing whether there was sufficient evidence to support a criminal conviction, we review “ “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” Tichnell v. State 287 Md. 695, 717 , 415 A.2d 830 (1980) (quoting Jackson v. Virginia, 443 U.S. 307, 319 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979)) (emphasis in original).

In this regard, we “ ‘give deference to all reasonable inferences [that] the fact-finder draws, regardless of whether [the appellate court] would have chosen a different reasonable inference.’ ” Burlas v. State, 185 Md.App. 559, 568 , 971 A.2d 937 (2009), cert. denied, 410 Md. 166 , 978 A.2d 245 (2009) (quoting State v. Suddith, 379 Md. 425, 430 , 842 A.2d 716 (2004)). In this case, we must give the trier of fact ²⁴³ deference because the issue of whether a person has responsibility for the supervision of a minor is a question of fact for the jury to determine. See Anderson v. State, 372 Md. 285, 292 , 812 A.2d 1016 (2002) (citing Newman v. State, 65 Md.App. 85, 99 , 499 A.2d 492 (1985)). The Court of Appeals in Pope v. State, 284 Md. 309 , 396 A.2d 1054 (1979), articulated the meaning of “responsibility for supervision of a minor” as it pertains to sexual abuse of a minor.

The Court of Appeals explained: A person may have the responsibility for the supervision of a minor child in the contemplation of § 35A [now codified as Md.Code (2002) § 3-602(b)(1) of the Criminal Law Article (“C.L.”) ] although not standing in loco parentis to that child. “Responsibility” in its common and generally accepted meaning denotes “accountability,” and “supervision” emphasizes broad authority to oversee with the powers of direction and decision. See American Heritage Dictionary of the English Language (1969); Webster’s Third New International Dictionary (1968). As in the case of care or custody of a minor child under the child abuse law, a judicial decree is not necessary to obtain responsibility for the supervision of a minor child under that statute. Had the Legislature wished to narrow application of that law to those who had been charged with responsibility for the supervision of a child by court order, it could readily have done so in explicit language to that end.

See [Bowers v. State, 283 Md. 115, 130 , 389 A.2d 341 (1978) ]. Absent a court order or award by some appropriate proceeding pursuant to statutory authority, we think it to be self-evident that responsibility for supervision of a minor child may be obtained only upon the mutual consent, expressed or implied, by the one legally charged with the care of the child and by the one assuming the responsibility. In other words, a parent may not impose responsibility for the supervision of his or her minor child on a third person unless that person accepts the responsibility, and a third ²⁴⁴ person may not assume such responsibility unless the parent grants it. On the other hand, once responsibility for the supervision of a minor child has been placed in a third person, it may be terminated unilaterally by a parent by resuming responsibility, expressly or by conduct.

The consent of the third party in such circumstances is not required; he may not prevent return of responsibility to the parent. But, of course, the third person in whom responsibility has been placed is not free to relinquish that responsibility without the knowledge of the parent. Id. at 323-24, 396 A.2d 1054 . Appellant contends that he was not “legally responsible” for S.B. because there was no “transfer and acceptance of supervision.” However, the record indicates that there was implied consent that appellant would assume responsibility for the supervision of S.B. Mr. B. testified that appellant told him that he would watch over S.B. while he worked on his property.

Ms. B. had the same understanding. Appellant was then presented with the opportunity to accept responsibility for the supervision of S.B. when Mr. B. left a note in his mailbox stating S.B. was interested in working for him. Appellant accepted the responsibility for supervision of S.B. when he called S.B. and offered him part-time work. Appellant repeatedly accepted the responsibility for supervision of S.B. each time he called S.B. to work.

Mr. and Ms. B. resumed responsibility for the supervision of S.B. when S.B. was dropped off at the edge of appellant’s property. Thus, pursuant to the teachings of Pope , appellant was responsible for supervision of S.B. when the incidents occurred, and only relinquished responsibility when S.B. left his property. Appellant next argues that Ellis v. State, 185 Md.App. 522 , 971 A.2d 379 (2009), and Anderson, supra, 372 Md. at 285 , 812 A.2d 1016 , demonstrate that he was not responsible for the supervision of S.B., because S.B. was free to come and go as he pleased. Appellant’s reliance on Ellis and Anderson , how ²⁴⁵ ever, is misplaced.

Nothing in Ellis and Anderson suggests that a person does not assume responsibility for the supervision of a minor simply because he or she could come and go as they please. In Ellis, a high school teacher, the defendant in that case, gave a former student his phone number and the two started communicating. 185 Md.App. at 530, 971 A.2d 379 . At first, the communication was “innocent in tone,” but it quickly “became increasingly sexual.” Id. On one occasion, the defendant invited her to his classroom so she could see his penis in person, because it was “better in person.” Id.

The student visited the defendant’s classroom the next day and he showed her his penis. Id. at 531 , 971 A.2d 379 . When she saw it she told him to “put his penis back in his shorts.” Id. The defendant then grabbed her hand and tried to force her to touch his penis.

Id. On appeal, the defendant asserted that he was not responsible for the supervision of the student because the incidents occurred after school hours. Id. at 548 , 971 A.2d 379 . We disagreed, and held: The ringing of the school bell that denotes the end of classes cannot terminate the responsibility of the school for the students on the school premises, because it would be unreasonable to suggest that, when a parent entrusts a child to a school, such parent does not impliedly consent to the school’s continued duty to ensure the safety of the child until the child leaves the school premises for the day.

Id. at 547 , 971 A.2d 379 . In Anderson , a sexual encounter occurred between petitioner, a teacher, and a student. 372 Md. at 288 , 812 A.2d 1016 . Petitioner asked the student if she wanted a ride home and she accepted. Id. at 289 , 812 A.2d 1016 (citing Anderson v. State, 142 Md.App. 498, 503-04 , 790 A.2d 782 (2002)).

As petitioner was driving the student home, he asked her if she wanted to play pool at his house. Anderson, 372 Md. at 289 , 812 A.2d 1016 (citing 142 Md.App. at 503-04 , 790 A.2d 732 ). The student was interested so petitioner drove to his house. Id.

Once the game of pool ended, petitioner started rubbing ²⁴⁶ her face and then kissed her. Anderson, 142 Md.App. at 504 , 790 A.2d 782 . The kissing then led to sexual intercourse. Id.

At trial, petitioner maintained his innocence, and testified that he took the student home “not to play pool, but out of concern for her safety.” Id. He also asserted that the student kissed him and then he took her home. Id. at 505, 790 A.2d 732 . On appeal, petitioner argued that he did not have responsibility for the supervision of the student because “there was no mutual consent that he drive” the student home.

Anderson, 372 Md. at 294 , 812 A.2d 1016 . The Court of Appeals disagreed, and reiterated Chief Judge Krauser’s analysis: Indeed, it is absurd to suggest that when a parent entrusts her child to a school that that parent does not impliedly consent to any reasonable assistance that a teacher may provide to assure the child’s return home from school. In other words, it may be reasonably assumed by both parent and teacher that a parent impliedly consents to all reasonable measures taken by a teacher to assure the safe return of the child from school, including personally driving that child home----Once a teacher assumes the task of personally transporting a child from school to home with the implied consent of the parent, he or she also assumes the responsibility of supervising that child---- Finally, there was no temporal break in the teacher and student relationship that existed