In re: J.H.

In re: J.H., No. 2461, September Term 2018. INDICTMENT AND CHARGING INSTRUMENTS > IN GENERAL NATURE AND PURPOSES BILL OF PARTICULARS Generally, whether to grant or refuse a demand for a bill of particulars is within the trial court's discretion, as is the determination of whether the particulars provided were legally sufficient. INDICTMENT AND CHARGING INSTRUMENTS > IN GENERAL NATURE AND PURPOSES BILL OF PARTICULARS The juvenile court’s decision to overrule Appellant’s exceptions to the State’s failure to respond to a bill of particulars is reviewed for abuse of discretion. INDICTMENT AND CHARGING INSTRUMENTS > IN GENERAL NATURE AND PURPOSES BILL OF PARTICULARS A bill of particulars, while not clearly established by Maryland canon, can be defined as “a formal written statement by the prosecutor providing details of the charges against the defendant.

Its functions are to give the defendant notice of the essential facts supporting the crimes alleged in the indictment or information, and also to avoid prejudicial surprise to the defense at trial. INDICTMENT AND CHARGING INSTRUMENTS > IN GENERAL NATURE AND PURPOSES BILL OF PARTICULARS A bill of particulars is only applicable in criminal proceedings. INDICTMENT AND CHARGING INSTRUMENTS > IN GENERAL NATURE AND PURPOSES BILL OF PARTICULARS The purpose of this type of demand is to ensure that the accused is well informed regarding the scope of proof that the State will be offering to prove its case against the accused. INDICTMENT AND CHARGING INSTRUMENTS > IN GENERAL NATURE AND PURPOSES BILL OF PARTICULARS A bill of particulars is most relevant in proceedings where the defendant is charged by a short form indictment.

INDICTMENT AND CHARGING INSTRUMENTS > IN GENERAL NATURE AND PURPOSES BILL OF PARTICULARS Juvenile petitions are governed by Md. Rule § 11-803, as promulgated by Md. Code. Ann., Cts. and Jud. Proc. § 3-8A-13(a) which provides, in part, that the petition must state the facts, in clear and simple language, on which the allegations are based. If the commission of one or more delinquent acts or crimes is alleged, the petition shall specify the laws allegedly violated by the respondent.

INDICTMENT AND CHARGING INSTRUMENTS > IN GENERAL NATURE AND PURPOSES BILL OF PARTICULARS In the instance that a juvenile believes that the charging petition is insufficient to advise them of the factual situation upon which they are accused, the petition can be supplied through other means, so long as the essential elements of the charged offense have been identified. INDICTMENT AND CHARGING INSTRUMENTS > IN GENERAL NATURE AND PURPOSES BILL OF PARTICULARS Given that juvenile proceedings are governed by the Maryland Rules, which specifically do not permit a juvenile to avail themselves of a remedy of an alleged deficient petition through a demand for a bill of particulars, we accept the State’s argument that Appellant was not entitled to a demand for a bill of particulars in the juvenile proceeding. INDICTMENT AND CHARGING INSTRUMENTS > IN GENERAL NATURE AND PURPOSES The petition was sufficient when it stated in clear simple language the facts that constituted the delinquency, i.e., that the genital area included the vaginal and anal area, where the perineum is located. CRIMINAL LAW > JUVENILE JUSTICE EVIDENCE DEGREE OF PROOF In determining whether the evidence was sufficient to show that a juvenile has committed a delinquent act, we utilize the same standard of review that applies in criminal cases: whether the evidence, adduced either directly or by rational inference, enabled the trier of fact to be convinced beyond a reasonable doubt that the Appellant committed the act.

CRIMINAL LAW > SEX OFFENSES IN GENERAL BODILY CONTACT, PENETRATION The expression “genital opening” is defined neither by case law nor statute in Maryland STATUTES > CONSTRUCTION PLAIN LANGUAGE; PLAIN ORDINARY OR COMMON MEANING IN GENERAL When examining the language of the statute, “[t]he language of the statute itself is the primary source of [legislative] intent; and the words used are to be given their ordinary and popularly understood meaning, absent a manifest contrary legislative intention. INFANTS > SEX OFFENSES CRIMINAL ACTS AGAINST CHILDREN EVIDENCE ISSUES PARTICULAR TO OFFENSES AGAINST CHILDREN WEIGHT AND SUFFICIENCY INTENT, STATE OF MIND, AND MOTIVE Absent any mention of the perineum in jurisdictions that define genital opening in some form or fashion, save one, we decline to define the perineum as a genital opening. In also considering the medical definition of perineum and the common understanding of opening, we acknowledge that the perineum does not have an entrance or exit. While it can be lacerated or torn, as it was in this case, it does not permit access to anything.

INFANTS > SEX OFFENSES CRIMINAL ACTS AGAINST CHILDREN EVIDENCE ISSUES PARTICULAR TO OFFENSES AGAINST CHILDREN WEIGHT AND SUFFICIENCY INTENT, STATE OF MIND, AND MOTIVE We do not diminish the clear evidence that there has been some sexual contact, evidenced by the healing tear in the victim’s perineum. Still, the evidence presented in reference to that contact was insufficient for a rational fact finder to conclude beyond a reasonable doubt that Appellant’s conduct satisfied the requirements of CR § 3-306. Therefore, the second-degree sex offense finding is reversed. CRIMINAL LAW > REVIEW SCOPE OF REVIEW IN GENERAL REVIEW DE NOVO When the evidentiary determination also involves a question of law, such as whether the evidence is relevant or constitutes hearsay under Maryland statutes, that legal issue is reviewed de novo.

CRIMINAL LAW > EVIDENCE HEARSAY HEARSAY IN GENERAL 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. CRIMINAL LAW > EVIDENCE HEARSAY HEARSAY IN GENERAL EVIDENCE AS TO INFORMATION ACTED ON One of the numerous ways that a statement can be admissible as non-hearsay is if it is offered for the purpose of showing that a person relied and acted upon the statement, rather than for the purpose of showing that the facts elicited in the statement are true. CRIMINAL LAW > EVIDENCE HEARSAY HEARSAY IN GENERAL EVIDENCE AS TO INFORMATION ACTED ON We find no implication of hearsay here, as the mother’s statements were offered for a purpose other than to assert the truth of its contents. Accordingly, the juvenile court did not abuse its discretion in admitting the mother’s statements, and we need not discuss whether the mother’s statements regarding the hospital visit were admitted for a hearsay purpose.

CRIMINAL LAW > EVIDENCE HEARSAY HEARSAY IN GENERAL PROMPT COMPLAINT EXCEPTION The prompt complaint exemption is grounded in the long-recognized Maryland common law hearsay exception for a victim’s timely complaint of a sexual assault. SEX OFFENSES > EVIDENCE ADMISSIBILITY OF VICTIM'S COMPLAINTS, STATEMENTS, AND DECLARATIONS SCOPE OF TESTIMONY; DETAILS The purpose of the prompt complaint exception in Maryland is to corroborate the victim’s testimony, and not simply to combat stereotypes held by jurors regarding nonreporting victims. SEX OFFENSES > EVIDENCE ADMISSIBILITY OF VICTIM'S COMPLAINTS, STATEMENTS, AND DECLARATIONS SCOPE OF TESTIMONY; DETAILS We respect and accept the juvenile court’s understanding of children’s concept of time and thus, find no substantive inconsistency in the content of the victim’s out of court statement and the testimony of her mother and Ms. Finamore about her report of the sexual assault. CRIMINAL LAW > REVIEW SCOPE OF REVIEW IN GENERAL COMPETENCY IN GENERAL EVIDENCE ADMISSIBLE BY REASON OF ADMISSION OF SIMILAR EVIDENCE OF ADVERSE PARTY The Court of Appeals has recently delved into the standard of review for the opening the door doctrine, finding that the inquiry as to whether counsel has opened the door is a legal one, considering that the open-door doctrine is a rule of expanded relevance.

Therefore, this Court reviews the question of whether a party opened the door to introduce rebuttal evidence de novo. CRIMINAL LAW > REVIEW SCOPE OF REVIEW IN GENERAL COMPETENCY IN GENERAL EVIDENCE ADMISSIBLE BY REASON OF ADMISSION OF SIMILAR EVIDENCE OF ADVERSE PARTY Once the door has been “opened” for the purposes of incompetent evidence, or evidence inadmissible for reasons other than relevancy, a second inquiry is made regarding the proportionality of the rebuttal evidence. CRIMINAL LAW > REVIEW DOCTRINE OF COMPLETENESS We accept the State’s assertion that the juvenile court did not enter portions of the victim’s interview under the doctrine of completeness, and therefore this principle is inapplicable to this case. CRIMINAL LAW > REVIEW SCOPE OF REVIEW IN GENERAL COMPETENCY IN GENERAL EVIDENCE ADMISSIBLE BY REASON OF ADMISSION OF SIMILAR EVIDENCE OF ADVERSE PARTY This opening the door doctrine offers relief when one party introduces evidence that was previously irrelevant, over objection, and in doing so, makes relevant an issue in the case, permitting the trial court to determine that the first party opened the door for the second party to offer evidence in response, in keeping with the interest of fairness.

CRIMINAL LAW > REVIEW SCOPE OF REVIEW IN GENERAL COMPETENCY IN GENERAL EVIDENCE ADMISSIBLE BY REASON OF ADMISSION OF SIMILAR EVIDENCE OF ADVERSE PARTY We agree with the juvenile court and the State that, as a matter of law, defense counsel opened the door, permitting the State to introduce rebuttal evidence in response to questioning about victim’s out of context statements, in order to assess to what degree the victim’s trouble answering questions was a fair characterization. Circuit Court for Charles County Case No. C-08-JV-18-000081 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 2461 September Term, 2018 ______________________________________ In Re: J.H. ______________________________________ *Wright, Reed, Sharer, J. F. (Senior Judge, Specially Assigned), JJ. Opinion by Reed, J. ______________________________________ Filed: April 29, 2020 * Wright, Alexander J., now retired, participated in the hearing of this case while an active member of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and the preparation of this opinion.

Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. Suzanne Johnson 2020-07-27 12:12-04:00 Suzanne C. Johnson, Clerk A juvenile petition was filed in the Circuit Court for Charles County, sitting as a juvenile court, charging J.H. (hereinafter “Appellant”) with a second-degree sexual offense and assault in the second degree. After an adjudicatory hearing on August 1, 2018, the juvenile court found the Appellant involved in committing delinquent acts as to both counts, and placed Appellant on supervised probation.

This appeal followed, wherein Appellant presents four questions for our review, which we have rephrased for clarity:1 I. Did the juvenile court err when it overruled Appellant’s exceptions to the State’s failure to respond to a demand for a bill of particulars?

II

Was the evidence legally sufficient to sustain the juvenile court’s findings of delinquency pertaining to the act of sexual offense in the second degree?

III

Did the juvenile court err when it admitted the statements of the victim’s2 mother and social worker?

IV

Did the juvenile court err when it admitted excerpts of the recorded interview? 1 Appellant presents the following questions: 1. Did the juvenile court err by overruling appellant’s exceptions to the State’s failure to respond to a demand for a bill of particulars? 2. Is the evidence insufficient to sustain the juvenile court’s finding of appellant’s involvement in the delinquent act of sexual offense in the second degree? 3. Did the juvenile court err by admitting inadmissible hearsay? 4.

Did the juvenile court err by admitting excerpts of the recorded interview with the forensic social worker as substantive evidence? 2 To respect and protect the privacy of the child involved in this matter, she will be referred to as “the victim.” For the reasons explained below, we affirm in part and reverse in part. FACTUAL AND PROCEDURAL BACKGROUND The Alleged Sexual Assault Throughout the summer of 2017, the victim was dropped off at her grandmother’s house for babysitting. In addition to the victim’s grandmother, Appellant, his sister and his father also lived in this house. A couple of weeks during this summer, the victim stayed at her grandmother’s house Monday through Friday.

There were also some Saturdays that the victim spent the night at her grandmother’s home. At the time of these stays, the victim was seven years old, and Appellant was seventeen years old. While the record is unclear, at some point between July 21st and mid-August of 2017, the victim’s mother recognized that she (the victim) did not want to go to her grandmother’s house, but she wouldn’t say why. When the mother pressed the victim about why, she would just cry.

The mother eventually got a new babysitter, and three days later, on or about August 21, 2017, the victim informed her mother that Appellant “had inappropriate contact with her” at her grandmother’s home. The victim stated that the contact occurred on a Saturday, when the victim had stayed overnight. The victim’s mother testified that the victim had last stayed at her grandparents’ house on a Saturday on either July 21 or July 28. The same day, the mother took the victim to the hospital “to see if she had gotten pregnant.” At the hospital, the victim stated that her “vagina . . . was hurting a lot.” When asked, “What did [Appellant] do that made you have to go to the hospital,” the victim later testified, “[h]e put his thing inside me.” The victim’s mother then called the police.

On 2 August 23, 2017, the victim was interviewed by forensic social worker Kara Finamore (“Ms. Finamore”), an employee of the Charles County Department of Social Services. During this interview, the victim informed Ms. Finamore that “Appellant and Appellant’s sister sexually assaulted her ‘the last time that she went [to her Aunt’s3 home], which was a few days prior’ to the interview.” The victim was examined at the Charles Regional Medical Center on August 31, 2017, by forensic nurse examiner Christine Martin (“Ms. Martin”). During the examination, Ms. Martin noticed “a [pea size] partially healed tear” in the victim’s perineum, which “is the area between the vagina and the rectum,” but “no trauma to the hymen.” On April 25, 2018, a delinquency petition was filed in the circuit court, charging Appellant with second-degree sex offense and second-degree assault. On June 28, 2018, the State amended the charge of second-degree sexual offense, substituting vaginal intercourse with “genital penetration with penis.” Appellant then filed a bill of particulars, requesting more detail regarding the “genital area that was purportedly penetrated.” The State responded that “the genital area” would include “the entire female genitalia area, including the anal area.” The Adjudication Hearing At the adjudicatory hearing held on August 1, 2018, the State presented testimony from the victim, the victim’s mother, Ms. Finamore and Ms. Martin.

The victim testified that “one week ago,” Appellant put “his penis inside [her],” while they were in his room. 3 The victim refers to her grandmother’s home as “her Aunt’s [home].” 3 The victim stated that she went to the hospital because her “vagina . . . was hurting a lot.” The victim was asked, “What did [Appellant] do that made you have to go to the hospital,” to which she responded, “[h]e put his thing inside of me.” On cross-examination, the victim admitted that her mother assisted her with words like “penis” and “vagina.” victim could not remember whether she or Appellant were clothed when the contact occurred. She testified that no one else was present, and she “could not remember what it felt like.” The victim’s mother testified about how she came to know about the sexual assault and the subsequent actions she took, as outlined above, as well as her relationships with Appellant, Appellant’s sister and the victim’s grandmother. Ms. Finamore testified that the victim informed her that Appellant and Appellant’s sister sexually assaulted her “the last time she went [to her aunt’s home], which was a few days prior” to the interview. On August 3, 2018, Ms. Martin, admitted as an expert in forensic nurse examination and evaluation, testified that the “partially healed” “[pea size] tear” to the victim’s “perineum” indicated “some sort of trauma.” She described that the perineum is the “posterior fourchette,” i.e., “the area between the vagina and the rectum.” While Ms. Martin “could not state when the trauma may have occurred . . . or what caused the trauma,” when pressed by the State, she testified “I would say, within the last month it had happened,” since the tear was “granulated” and was “starting to heal.” However, Ms. Martin did note that the victim’s vaginal area and perineum was “red and irritated,” and that the trauma was in the genital area.

She pointed out that the rectum was intact, but was close to the tear, and the victim almost had a “rectal tear.” Ms. Martin further indicated that the perineum would be included in the “vaginal genital area.” 4 The Appellant’s only witness was his father, who testified that the victim was never left in the house without he or the victim’s grandmother being present. Appellant’s father also testified that Appellant was never alone with the victim. Finding that the victim was in fact sexually abused, the juvenile court concluded that Appellant was involved in the delinquent act of second-degree sex offense and second-degree assault and placed him on supervised probation. This timely appeal followed.

DISCUSSION I. Bill of Particulars A. Parties’ Contentions Appellant argues that the State’s amended charging document did not specify the genital area that the State intended to prove was penetrated by Appellant’s penis, according to a demand for bill of particulars. Appellant maintains that because the State did not sufficiently respond to the demand, the juvenile court should have accepted the Appellant’s filed exceptions, dismissing the count of second-degree sex offense. The State submits that a demand for a bill of particulars is not available in juvenile proceedings. The State contends that even if Appellant could have demanded a bill of particulars, Appellant did not timely file an exception, and would not be entitled to relief.

The State further claims that even if the juvenile court accepted the untimely filed exception, dismissal would not have been the proper sanction. B. Standard of Review “‘Generally,’ whether to grant or refuse a demand for a bill of particulars is within the trial court’s discretion, in addition to ‘the determination of whether the particulars provided 5 were legally sufficient.’” Martin v. State, 218 Md. App. 1, 30 (2014) (quoting Dzikowski v. State, 436 Md. 430, 446-47 (2013)) Therefore, the juvenile court’s decision to overrule Appellant’s exceptions to the State’s failure to respond to a bill of particulars is reviewed for abuse of discretion. C. Analysis A bill of particulars, while not clearly established by Maryland canon, can be defined as “a formal written statement by the prosecutor providing details of the charges against the defendant. Its functions are to give the defendant notice of the essential facts supporting the crimes alleged in the indictment or information, and also to avoid prejudicial surprise to the defense at trial.” Dzikowski, 436 Md. at 446 (citing 1 Charles Alan Wright et al., Fed. Prac. & Proc.

Crim. § 130 (4th ed., April 2012 Update)). As such, a bill of particulars is only applicable in criminal proceedings. The purpose of this type of demand is to ensure that the accused is well informed regarding the scope of proof that the State will be offering to prove its case against the accused. Dzikowski, 436 Md. at 447 .

However, “it is not to be used as an instrument to require the State ‘to elect a theory upon which it intends to proceed.’” Id. (internal citations omitted). Furthermore, it is within the discretion of the trial court to determine if a defendant is entitled to a bill of particulars. See Fraidin v. State, 85 Md. App. 231, 270 (1991).

A bill of particulars is most relevant in proceedings where the defendant is charged by a short form indictment. As a supplement to an otherwise sufficient indictment, it “is designed to provide the defendant with information with which he would have been supplied had he been indicted using the standard indictment, which constitutes notice that 6 is constitutionally required to be given in order to apprise the defendant of the crime with which he is accused.” Dzikowski, 436 Md. at 448 . Juvenile petitions are governed by Md. Rule 11-803, as promulgated by Md. Code. Ann., Cts. and Jud.

Proc. (“CJ”) § 3-8A-13(a)4, which provides, in part, that the petition must state “[t]he facts, in clear and simple language, on which the allegations are based. If the commission of one or more delinquent acts or crimes is alleged, the petition shall specify the laws allegedly violated by the respondent.” Md. Rule 11-803(a)(2)(c). This Court, along with the Court of Appeals, has traditionally held that juvenile proceedings are civil in nature, and do not constitute criminal proceedings.

See In re Anthony R., 362 Md. 51, 69 , (2002); In re Victor B., 336 Md. 85, 91 (1994), In re Areal B., 177 Md. App. 708, 714 , (2007). Even so, juveniles charged with delinquent acts are afforded the same constitutional protections as defendants charged criminally, pursuant to the Fourteenth Amendment. In re Roneika S., 173 Md. App. 577, 587 (2007). In evaluating the sufficiency of a juvenile petition and whether notice requirements as mandated by the Constitution are met, this Court does not “read CJ § 3–8A–13(a) and Rule 11–103(a)(2)(c) as requiring greater factual specificity than is required by the Fourteenth Amendment or Article 21 . . . [n]or do we believe that the statute and rule require more than does a criminal charging document.” In re Roneika S., 173 Md. App. 577 at 600 .

In the instance that a juvenile believes that the charging petition is insufficient to advise them of the factual situation upon which they are accused, additional factual detail 4 Also known as the Juvenile Causes Act. 7 can be supplied “through other means,” so long as “the essential elements of the charged offense have been identified.” Id. at 600-601 . In any case, given that juvenile proceedings are governed by the Maryland Rules, which make no mention of a juvenile being permitted to avail themselves to the remedy of an alleged deficient petition through a demand for a bill of particulars, we accept the State’s argument that Appellant was not entitled to a demand for a bill of particulars in the juvenile proceeding. The juvenile court was under no obligation to mandate that the State provide Appellant with a bill of particulars, and therefore the juvenile court did not abuse its discretion in overruling Appellant’s exceptions regarding the same. However, we will now turn our attention to whether the juvenile petition stated in “clear and simple language the alleged facts which constitute the delinquency,” as required by CJ § 3–8A–13(a) and Rule 11–103(a)(2)(c).

On April 25, 2018, the juvenile petition was filed, alleging that Appellant committed second-degree sex offense (age-based) and second-degree assault. At the time the petition was originally filed, the sexual act listed was “vaginal intercourse,” in tandem with the incident report which stated that the victim alleged that the Appellant put “his thing” “inside of her.” On June 28, 2018, the State moved to amend the second-degree sex offense as charged because “as it stood, the petition ‘more or less’ included ‘an allegation of rape, worded as a second-degree sexual offense.’” The State substituted “vaginal intercourse” with “genital penetration,” to which Appellant objected, arguing that “genital penetration” was “overly broad” and that the “genital area” to have been penetrated was not clear. The 8 State responded to Appellant’s objection, clarifying that the genital area included the vaginal and anal areas. We believe that this clarification more than satisfies Md. Rule 11–103(a)(2)(c) requirement for “clear and simple language” regarding the allegations on which the petition is based.

Even at the hearing on August 1, 2018, when Appellant continued to question the genital area they were alleging was “penetrated” the State stated: [SAO Attorney]: “He keeps putting his thing in and doing this.” As she touched her vaginal area with her hand. . . A further interview with [the victim] indicated [Appellant] . . . put his think [sic] inside her. She describes it hurts when he does it. She described his thing and pointed to her vaginal area. **** [OPD Attorney]: And, Your Honor, once again, I am just going to ask, which genital opening are we referring to?

I still haven’t been informed? **** [The Court]: The genital area, which could include the vaginal area, the vagina, the anus, however slight, penetration. [SAO Attorney]: Yes, Exactly. [The Court]: Either, both, or one or the other. So, that’s . . . you have been on notice of this. We’re not going to parse this further. We do not overlook Appellant’s next argument that the perineum is not a genital opening for the purposes of a sexual offense in the second-degree charge, as discussed infra.

However, in respect to whether the petition stated in “clear simple language the facts that constituted the delinquency,” i.e., that the genital area included the vaginal and anal area, where the perineum is located, we hold that the petition was sufficient. 9 II. Second-Degree Sexual Offense A. Parties’ Contentions Appellant contends that the evidence was insufficient to sustain the juvenile court’s finding of Appellant’s involvement in a sexual offense in the second degree, because the State did not prove that Appellant penetrated the victim’s genital opening. Specifically, Appellant submits that the facts and the court’s finding constitute attempted second-degree rape or sexual offense in the third degree. The State rebuts, noting that its proof established that Appellant penetrated a genital opening other than the victim’s vagina, the perineum.

B. Standard of Review In determining whether the evidence was sufficient to show that a juvenile has committed a delinquent act, we utilize the same standard of review that applies in criminal cases: “whether the evidence, adduced either directly or by rational inference, enabled the trier of fact to be convinced beyond a reasonable doubt that the [A]ppellant committed the act.” In re George V., 87 Md. App. 188, 193 (1991) (citing In re: Appeal No. 101, 34 Md. App. 1 (1976)). Appellate courts have no responsibility in “resolv[ing] conflicting evidentiary inferences;” we give great deference to the fact finder, as they have the best “opportunity to assess the credibility of the witnesses, weigh the evidence and resolve conflicts in the evidence….” Neal v. State, 191 Md. App. 297, 314 (2010) (quoting Sparkman v. State, 184 Md. App. 716, 740 (2009), cert. denied, 410 Md. 166 (2009)). But if our review of the sufficiency of the evidence “involves an interpretation and application of Maryland statutory and case law, [this Court] must determine whether the lower court’s 10 conclusions are legally correct under a de novo standard of review.” Rodriguez v. State, 221 Md. App. 26, 35 (2015) (internal quotations and citations omitted). C. Analysis Md. Code Ann. Crim.

Law (“CR”) § 3-306 provides that: (a) [a] person many not engage in vaginal intercourse or a sexual act with another (3) if the victim is under the age of 14 years, and the person performing the act is at least 4 years older than the victim. CR § 3-306(a)(3) (2012 Repl. Vol., 2016 Supp.).5 A “sexual act” as outlined by CR § 3- 301(d)(1) states: (d)(1) “Sexual act” means any of the following acts, regardless of whether semen is emitted: (i) analingus; (ii) cunnilingus; (iii) fellatio; (iv) anal intercourse, including penetration, however slight, of the anus; or (v) an act: 1. in which an object or part of an individual’s body penetrates, however slightly, into another individual’s genital opening or anus; and 2. that can reasonably be construed to be for sexual arousal or gratification, or for the abuse of either party. (emphasis added).

CR § 3-301(d)(2) indicates that a “sexual act” does not include “vaginal intercourse,” which is defined as “genital copulation, whether or not semen is emitted,” 5 Effective October 1, 2017, the General Assembly repealed the first and second- degree “sexual offense” crimes, reclassifying those as first and second-degree rape crimes, pursuant to Acts 2017, Chapter 161 & 162 (SB0944 and HB 0647). While second-degree rape embodies the former crime of sexual offense in the second degree, the offenses alleged in this case predate the amendment. Therefore, for this opinion, we will refer to the charge as sexual offense in the second degree. See also CL § 3-304 (2012 Repl.

Vol., 2018 Supp.). Additionally, in accordance with the statute as it was written before the amendment, any reference to the Criminal Law Article are to the 2016 Supplement to the 2012 Replacement volume, unless otherwise stated. 11 including “penetration, however slight, of the vagina.” CR § 3-301(g)(1)-(2). As emphasized above, the point of contention between the parties is whether the State presented sufficient evidence for the juvenile court to conclude that Appellant “penetrate[d], however slight” the victim’s “genital opening,” with a particular focus on whether the “perineum” is a “genital opening” for the purposes of a second-degree sexual offense charge. The expression “genital opening” is defined neither by case law nor statute in Maryland.

The Court of Appeals has explicitly framed the procedure utilized by appellate courts when interpreting ambiguities in statutes, declaring: In construing a statute, we look first to the plain language of the statute, and if that language is clear and unambiguous, we look no further than the text of the statute. A plain reading of the statute assumes none of its language is superfluous or nugatory. We neither add nor delete words to a clear and unambiguous statute to give it a meaning not reflected by the words the Legislature used or engage in forced or subtle interpretation in an attempt to extend or limit the statute’s meaning. We have often stated that if the language of the statute is not ambiguous, either inherently or by references to other relevant laws or circumstances, our inquiry as to legislative intent ends.

If the meaning of the plain language is ambiguous or unclear, to discern legislative intent, we look to the legislative history, prior case law, the purposes upon which the statutory framework was based, and the statute as a whole. Bible v. State, 411 Md. 138 , 152–53 (2009) (quoting Bost v. State, 406 Md. 341 -350 (2008)) (internal quotation marks and citations omitted). When examining the language of the statute, “[t]he language of the statute itself is the primary source of [legislative] intent; and the words used are to be given their ordinary and popularly understood meaning, absent a manifest contrary legislative intention.” Williams v. State, 329 Md. 1, 15 (1992) (quotation marks and citation omitted). We also consider statutes from other jurisdictions 12 to determine if “their treatment of [certain] statutory provisions [are] analogous to those in Maryland law.” Bible, 411 Md. at 153 ; see also Stachowski v. Sysco Food Servs. of Baltimore, Inc., 402 Md. 506 , 528–531 (2007).

In 1976, the Maryland General Assembly repealed the common law crimes of rape and sodomy, creating a new and distinct subtitle in Article 27 entitled, “Sexual Offenses.” Legislative Bill File, S.B. 358, at 1 (1976). Through this new structure, “the crime of commission of a sexual offense [was] trifurcated into degrees, the determination of which [was] dependent upon the presence or absence of numerous delineated factors of aggravation.” Legislative Bill File, S.B. 358, at 1. Additionally, “certain germane phrases” were “defined with specificity, i.e. mentally defective, mentally incapacitated, physically helpless, sexual act and sexual conduct.” Id. at 1. Nevertheless, in redefining “sexual act” to include “intrusion of foreign objects into the genital or anal openings,” the legislature did not designate a particular meaning to the words “genital” or “opening.” Legislative Bill File, S.B. 358, at 6.

In the absence of a discernable legislative intent regarding a specified meaning of the aforementioned words, we must turn to their “ordinary and popularly understood meaning.” Williams, 329 Md. at 15 . Appellant urges us to consider the common understanding of “genitals” and “opening,” as they are explained in a dictionary. The State, on the contrary, believes that the statutes of other states “are more on point and useful.” We will apply both the medical and common definitions of these words and construe them against the medical definition of “perineum,” as well as make jurisdictional comparisons, 13 in order to determine whether the apparently complex phrase “genital opening” encompasses the perineum. The female genitalia, as outlined in Taber’s Cyclopedic Medical Dictionary, is defined as the “[r]eproductive organs of the female sex.” Female Genitalia, Taber’s Cyclopedic Medical Dictionary, at 941 (21st ed. 2009).

The definition goes on to explain that “the external genitalia collectively are termed the vulva or pudendum and includes the mons veneris, labia majora, labia minora, clitoris, fourchette, fossa navicularis, vestibule, vestibular bulb, Skene’s glands, gland of Bartholin, hymen and vaginal introitus and perineum,” while the internal genitalia includes “the two ovaries, the two fallopian tubes, uterus and vagina.” Id. at 941. We utilize the common usage definition of “opening” provided by Appellant, defined in pertinent part as “becoming open or causing to be open; in a state which permits access, entrance or exit; not closed, covered, clogged, or shut.” Opening, New World Dictionary, at 995-996 (2d ed. 1974). The perineum is medically described as “[t]he external region between the vulva and anus in a female or between the scrotum and anus in a male. It is made up of skin, muscle and fasciae.” Perineum, Taber’s Cyclopedic Medical Dictionary, at 1749 (21st ed. 2009).

In discussing tears in the perineum, Taber’s indicates that there are four degrees of severity, usually caused by delivery: A first-degree tear involves superficial tissues of the perineum and vaginal mucosa but does not injure the muscular tissue. A second-degree tear involves those tissues included in a first-degree tear and the muscles of the perineum but not the muscles of the anal sphincter. A third-degree tear involves all the tissues of the second-degree tear and the muscles of the anal sphincter. A fourth-degree tear extends completely through the perineal skin, vaginal mucosa, perineal body, anal sphincter muscles and the rectal mucosa. 14 Id. at 1749.

The State directs our attention to two statutes in New Hampshire and Mississippi that support its contention that the perineum is a genital opening. In title LXII of New Hampshire’s criminal code, they define “genital opening” as “the internal or external genitalia including, but not limited to, the vagina, labia majora, labia minora, vulva, urethra or perineum.” N.H. Rev. Stat. Ann. § 632 -A:1(I-b). In the context of penetrating a “genital opening,” the New Hampshire statute defines “sexual penetration” as: (1) Sexual intercourse; or (2) Cunnilingus; or (3) Fellatio; or (4) Anal intercourse; or (5) Any intrusion, however slight, of any part of the actor’s body, including emissions, or any object manipulated by the actor into genital or anal openings of the victim’s body; or (6) Any intrusion, however slight, of any part of the victim’s body, including emissions, or any object manipulated by the victim into the oral, genital, or anal openings of the actor’s body[.] N.H. Rev. Stat. Ann. § 632 -A:1(V). We distinguish New Hampshire’s statute from Maryland’s, in that our sexual crimes definition under CR § 3-301(d)(2) explicitly excludes “vaginal intercourse” from the description of a sexual act.

Moreover, outside of identifying the perineum as part of the definition for “sexual penetration,” no New Hampshire case law, reported and unreported, further applies the New Hampshire statute in finding that a victim’s perineum was in fact penetrated. See State v. Guay, 162 N.H. 375, 383 (2011); State v. Flynn, 151 N.H. 378, 383 (2004); State v. Boisvert, No. 2015-0392, 2016 WL 3940144 , at ¹ (N.H. July 8, 2016); State v. Nolan, No. 2015-0209, 2016 WL 3475707 , at ³ (N.H. Mar. 17, 2016). 15 In Maryland, there is also an absence of case law discussing the perineum, much less whether it can be penetrated, beyond (1) describing medical examinations done around or about the perineum, (2) explaining it, for the purposes of defining the female genital area, (3) or referencing it as part of injuries sustained during a sexual assault involving vaginal intercourse. See generally Martinez ex rel. Fielding v. The John Hopkins Hosp., 212 Md. App. 634, 641 (2013) (in a torts negligence case, “the perineum [was] cut in order to enlarge the vaginal opening.”); Silberstein v. Massachusetts Mut.

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