Hyman v. State

KENNEY, J. Appellant, Alphonso Hyman, was convicted by a jury sitting in the Circuit Court for Montgomery County of second degree assault and kidnapping. He was sentenced to ten years’ incarceration, with all but five years suspended, for the second degree assault charge, and three years’ incarceration, with all but 18 months suspended, for the kidnapping charge. In addition, he was sentenced to five years probation. Appellant noted a timely appeal and presents three questions for our review, which we have reworded: ⁶²² 1.

Did the trial court err by admitting evidence of a prior uncharged allegation of rape made by Jennifer Hyman against appellant? 2. Did the trial court err when it permitted Jennifer Hyman to testify in rebuttal about why she had terminated the babysitter? 8. Did the trial court err by admitting hearsay evidence? Finding no error, we affirm the judgments of the trial court.

FACTUAL AND PROCEDURAL HISTORY On the evening of December 24, 2002, Jennifer Hyman (“Ms. Hyman”) was in front of her apartment building unloading Christmas presents from her car when she was approached by appellant, her estranged husband. According to Ms. Hyman, appellant told her to take her hands out of her pockets. She did and then “shrunk to the ground” in fear and stated, “[JJust go away. Please.

Just leave me alone.” Appellant pulled out a “chefs knife” and told her to get up. He lifted Ms. Hyman up by her jacket and ushered her down the street to his car. Ms. Hyman, in fear for her life, was unable to walk, and again fell to the ground. In response, appellant said, “Come with me or I’ll do it right here.” Ms. Hyman got up and followed him to his car.

After appellant opened the passenger side rear door, he told Ms. Hyman to get in and take off her shoes, socks, pants, and underwear. Appellant asked for Ms. Hyman’s keys and took them out of her pocket. He told her to get down on the floorboards of the car and “lay back.” Then he went to his trunk, presumably to either put something inside or retrieve something. Appellant proceeded around to the driver’s side door, pulled the seat up, and told Ms. Hyman to lie back further.

When she complied, he left the car. After a few moments, Ms. Hyman tried to open both rear doors, but the child locks were engaged. When she peeked over the dashboard, she saw appellant across the street in her car. She then exited the car via the front seat and “took off ⁶²³ running down the street.” Ms. Hyman flagged down a passing car, got inside, and exclaimed to the driver, “Help me.

Please, help me. My husband is trying to rape me. Can you please take me to the police station.” Julio Shaik was the driver of the car that Ms. Hyman flagged down. He testified that he had just dropped his wife off at a Christmas party and was looking for a parking spot when he noticed Ms. Hyman running toward him.

He stated that she was frantically trying to get his attention, and when she got in the car she told him that “her husband was trying to rape her.” He drove her to the police station. Upon arriving at the police station, appellant reported the incident and explained to the police that one month earlier, on November 23, 2002, appellant had raped her in their home. Over objection, Ms. Hyman was permitted to testify about the prior alleged rape. She explained that she and appellant had had an “off and on,” “rocky relationship” for quite some time.

Ms. Hyman testified that they had two sons and had lived apart several times during their 8/é year relationship. Late in the night on November 22 and into the morning of November 23, 2002, appellant and Ms. Hyman had an all night conversation about their marriage. Ms. Hyman told her husband that their relationship was over and that she was “going to move on with [her] life.” When she went to bed, appellant followed her and made sexual advances, which she rejected. The next morning, she got up with the children, made their breakfast, and then went back to bed.

After what seemed like a few minutes, the youngest son started to cry. Ms. Hyman remained in bed while appellant got up. Shortly thereafter he returned to the bedroom, locked the door, and told Ms. Hyman to “[g]et up.” At first, she pretended to be sleeping, but she eventually opened her eyes. Appellant was staring at her with “piercing eyes,” and said, “I’m evil and I am going to do evil things and I am going to make you hate me.” She testified that he had the same “piercing eyes” during the incident on December 24, 2002. ⁶²⁴ Appellant ordered Ms. Hyman to take off her underwear and night shirt and perform fellatio on him.

As she did, he kept one hand behind his back. He later pulled a gun from behind his back and cocked it over Ms. Hyman’s head. Appellant told Ms. Hyman that “if [she] did what he told [her] to do then he wouldn’t hurt [her].” Appellant then demanded that Ms. Hyman “make love” to him twice and lay beside him. She complied, and afterward he permitted her to leave the room.

Later that evening, she told appellant he had to leave. He packed some clothes and left the residence. Ms. Hyman did not report the incident to the police, but applied for and obtained an ex parte protective order two days later. The trial court permitted Ms. Hyman’s co-worker, Joy Robinson, over objection, to testify that Ms. Hyman took the Monday following the November 23, 2002 incident off work to obtain the protective order.

Robinson also testified that Ms. Hyman told her that appellant had raped her. Patricia Anderson was the children’s babysitter. She testified that, during the day on December 24, 2002, appellant stopped by with 11 or 12 bags of toys for his sons for Christmas. When Ms. Hyman came by in the evening to pick up her sons, she could not get all of the toys in her car.

She returned later that night to pick up the rest of the toys. The incident occurred when she was unloading the toys at her residence. Appellant was arrested and charged with attempted rape in the first and second degree, kidnapping, false imprisonment, assault in the second degree, carrying a weapon openly with intent to injure, and violation of an ex parte protection order. The seventh count (violation of an ex parte protection order) was severed for trial purposes.

The suppression court ruled that evidence concerning the November 23, 2002 incident was admissible at trial, finding that it was not “impermissibly prejudicial.” Appellant was convicted of second degree assault and false imprisonment. He later pleaded guilty to violation of an ex parte protection order. He presents this timely appeal. ⁶²⁵ DISCUSSION I. Bad Acts and Sexual Propensity The suppression court admitted the evidence concerning the November 23, 2002 incident on two bases: 1) pursuant to Maryland Rule 5-404(b), to show appellant’s intent to commit rape; and 2) under the “sexual propensity exception,” explained in Vogel v. State, 315 Md. 458 , 554 A.2d 1231 (1989). Appellant argues that admission on both grounds constituted error.

Maryland Rule 5-404(b) states: (b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, common scheme or plan, knowledge, identity, or absence of mistake or accident. “[GJenerally, ‘evidence of a defendant’s prior criminal acts may not be introduced to prove that he is guilty of the offense for which he is on trial.’ ” Borchardt v. State, 367 Md. 91, 133 , 786 A.2d 631 (2001), cert. denied, 535 U.S. 1104 , 122 S.Ct. 2309 , 152 L.Ed.2d 1064 (2002), rehearing denied, 536 U.S. 978 , 123 S.Ct. 11 , 153 L.Ed.2d 875 (2002) (citations omitted). Such evidence is only admissible when it “has special relevance, i.e., is substantially relevant to some contested issue in the case and is not offered simply to prove criminal character, and ... has probative force that substantially outweighs its potential for unfair prejudice.... ” Harris v. State, 324 Md. 490, 500 , 597 A.2d 956 (1991).

When evidence of other crimes is offered, the court must employ a three-part test to determine if the evidence is admissible. “ ‘When a trial court is faced with the need to decide whether to admit evidence of another crime — that is, evidence that relates to an offense separate from that for which the defendant is presently on trial — it first deter ⁶²⁶ mines whether the evidence fits within one or more of the [special relevancy] exceptions. That is a legal determination and does not involve any exercise of discretion. If one or more of the exceptions applies, the next step is to decide whether the accused’s involvement in the other crimes is established by clear and convincing evidence. * * * If this requirement is met, the trial court proceeds to the final step. The necessity for and probative value of the “other crimes” evidence is to be carefully weighed against any undue prejudice likely to result from its admission.

This segment of the analysis implicates the exercise of the trial court’s discretion.’ (Citations omitted).” Streater v. State, 352 Md. 800, 807 , 724 A.2d 111 (1999) (citations omitted). In this case, the suppression court, determining that the evidence fit into the 5-404(b) category of “intent,” stated: The State has to prove intent. The defendant has to prove nothing. No one would seek to take away the State’s — the constitutional rights of the defendant.

He has a right to come into this case and sit there and sit there and sit there and say nothing, and he cannot be required to do anything. At the same time the State has the highest burden known to law, beyond a reasonable doubt and to a moral certainty, to establish that the circumstances occurred and that they occurred with the requisite intent. It is clear that the prior act, if believed by the jury, which will be a credibility issue if the defendant, by his trial strategy, elects to make it so — or perhaps otherwise — but the State, in its burden of proving beyond a reasonable doubt intent, may use the prior act. It is close in time.

It is the same person. It shows a propensity for sexual assault. It shows the use of a weapon. It shows a serious assault. ⁶²⁷ The facts demonstrate strong similarities between the two incidents.

During the November 23, 2002 incident, appellant instructed Ms. Hyman to disrobe from the waist down, to perform fellatio on him, and then to engage in sexual intercourse. During that incident, he produced a gun, with which he threatened Ms. Hyman. On December 24, 2002, appellant, again armed with and displaying a weapon, approached appellant and directed her to disrobe from the waist down. He also told her to “[come with me or, I’ll do it right here.” Ms. Hyman escaped before any other act could occur, but these facts, and the reasonable inferences therefrom, could reasonably indicate that appellant had the intent to rape Ms. Hyman again on December 24, 2002.

We are not persuaded by appellant’s efforts to distinguish the similarities between the incidents, including: that the weapon in the first incident was a gun, and in the second a knife; that one happened when they were living together and the other during a period of estrangement; and that one happened inside the home and the other outside. The trial court did not err in determining that the November 23, 2002 incident was admissible to establish appellant’s intent on December 24, 2002. The second prong of the test required the court to determine whether, through clear and convincing evidence, the prior bad act was actually committed. Appellant contends that the evidence presented at the motions hearing was “generic” and insufficient to meet the burden.

We disagree. During the hearing, Ms. Hyman testified in detail about the events that took place on November 23, 2002. She explained that she did not report the incident to the police because she did not want to get her husband in trouble with the law. She also testified about applying for and receiving the ex parte order.

In this case, the court clearly found that there was “very strong evidence, certainly by clear and convincing evidence,” that the November 23, 2002 incident occurred. Ms. Hyman’s testimony, if believed, was sufficient in itself to provide clear and convincing evidence that the November 23, 2002 incident occurred. ⁶²⁸ Finally, the court, in the third step of its analysis, must assess whether any unfair prejudice will result by admitting the evidence. During the motions hearing, the court stated, “The probative value, given the