Jones v. State

EYLER, DEBORAH S., J. A jury in the Circuit Court for Baltimore County convicted Charnard Demon Jones, the appellant, of first-degree sexual offense, second-degree sexual offense, sodomy, and second-degree assault. The court sentenced him to 30 years’ impris ⁴⁴⁷ onment on the first-degree sexual offense conviction and merged the other convictions for sentencing. Before this Court, the appellant poses two questions for review, which we have rephrased slightly: I. Did the trial court err in rejecting his territorial jurisdiction argument as a matter of law, instead of submitting that issue to the jury for decision?

II

Did the trial court err in ruling that the evidence was legally sufficient to establish a proper chain of custody of the DNA evidence taken during the SAFE examination of the victim? For the following reasons, we shall affirm the judgments of the circuit court. FACTS AND PROCEEDINGS The events central to this case occurred in the early morning hours of December 4, 1998. Sometime around midnight on December 3-4, the victim went to a bar called Nick’s Place, which is located in the Savoy Plaza in the 8500 block of Liberty Road.

That address is in the Randallstown area of Baltimore County. The victim planned to meet her sister there. She had been drinking heavily for much of the day. Before going to Nick’s, the victim and a friend of a neighbor had been drinking at a bar in Baltimore City.

The neighbor’s friend gave the victim a ride to Nick’s bar and dropped her off there. The victim’s sister never showed up at Nick’s. The victim drank two mixed drinks and then, around 1:30 a.m., left the bar and sat outside on the street curb. For a while, she talked to a man she knew as Claudis.

She started to feel “woozy” and decided to use the nearby pay telephone to make a call. She tripped and fell on her way to the telephone booth and hit the back of her head on the ground. She sat back down on the curb and someone “came up next to [her] and was talking to [her],” but she could not remember who the person was or “picture the face.” ⁴⁴⁸ The victim remembered being put in a car and “being in a car.” The car was moving and it was dark. She was in the back seat with another person and was saying, “Let me out this car.” The person in the back seat then “just started beating [her] in [her] face.” She felt sick and dizzy and wanted to get out of the car because her “head was spinning.” She described what she remembered happening while she was being beaten: I don’t remember too much.

I remember being beaten in the face, and then when the car stopped it’s, like — I don’t know, the person must have got out of the car. I know I was still wanting to fight and trying to get away, and I just felt somebody, like, turn me over on my stomach and pull my pants down, and I felt a penis penetrate into my rectum. I was, like, passed out again after that. It [sic] kept beating me in the back of my head.

I was so scared because I know it was a rape thing going on, and I was really just blanking out. After testifying that she was positive that she was sodomized, and not vaginally raped, and describing the clothing she had been wearing that night, the victim continued in her recitation of events: The next thing I remember is somebody turning me over, but I still couldn’t see nothing because I was so drunk. I started throwing up. I was leaning back throwing up this way, and I heard the person, I guess, whose car it was, “Get this bitch out my car, because she hurling.” Then the person in the back seat who did whatever they had to do, dragged me out of the car, and that was it.

Sometime during the beating and being dragged out of the car the victim’s ear “was sliced in half’ and her chin and one of her eye sockets were injured. The victim testified that she believes she passed out or fell asleep where she was left, which turned out to be in Leakin Park, in Baltimore City. At some point, she woke up, thinking she was in bed having a bad dream, but found herself outside ⁴⁴⁹ lying on the ground in the dark. Eventually, she got up and started walking until she saw a light, which was the streetlight at the intersection of Windsor Mill Road and North Forest Park Avenue.

She followed the light to a gas station on that corner. The only clothes the victim was wearing at that time were a shirt and socks. The rest of her clothing (jeans, boots, and a leather jacket) and her purse and its contents were gone. When she reached the gas station, she “[j]ust stood there in shock[.]” She tried to tell the people there her name.

She remembered that her sister lived nearby, and gave the gas station workers a piece of paper with her sister’s telephone number on it. Her sister came to the gas station to get her. The next thing she remembers is waking up at Mercy Medical Center. The initial call from the gas station was made to the Baltimore City Police Department, at 5:50 a.m.

Soon thereafter, when the Baltimore City police realized that the victim had been accosted outside of Nick’s Place in Baltimore County, the case was transferred to the Baltimore County Police Department. That same day, at 1:00 p.m., the victim was examined by Leslie Crimy, R.N., a SAFE (Sexual Assault Forensic Examination) nurse at Mercy Medical Center. During the examination, anal swabs were obtained. We shall discuss that examination and the physical evidence when we address the appellant’s second question presented.

Detective Debra Milholen-Tribull of the Baltimore County Police Department was in charge of the criminal investigation of this case. The investigation was closed after two months because it had failed to produce a viable suspect. For six years, the case remained dormant. Then, in 2004, DNA evidence from the swabs taken from the victim was sent to the Bode Technology Group, an independent laboratory, for analysis. 1 When the results of the analysis were entered into the ⁴⁵⁰ State’s DNA database they matched the appellant’s DNA.

The appellant was indicted on January 18, 2005. Expert testimony introduced at trial revealed that the likelihood that the source of the DNA found on the anal swab obtained from the victim was someone other than the appellant was between one in 71 quadrillion and one in 260 quadrillion. We shall include additional facts as relevant to our discussion of the issues. DISCUSSION I. Territorial Jurisdiction On cross-examination, the victim testified that for at least part of the time she was in the back seat of the car, where she was sodomized, the car was being driven, at times at a high speed.

She knew that she was put in the car in front of Nick’s Place, on Liberty Road, in Baltimore County, and that she was dragged out of the car and deposited in Leakin Park, in Baltimore City. She testified that, between those two times, she did not “know where I went, how we got there on the road, how we got in the park or none of that.... ” The following exchange between defense counsel and the victim then ensued: Q: The driver could have taken you on the Beltway? A: I don’t know. I don’t remember.

Q. He could have taken you on the BW Parkway headed toward D.C., correct? A. I don’t know. I don’t know what you’re saying. I mean, I ended up where I ended up at.

Q. But you don’t know, so the rape could have taken place in D.C. in a car, correct? A. It could have, but I know it didn’t. Q. How do you know? ⁴⁵¹ A. Because I know. Q. How do you know?

A. Because I know it didn’t. Why wouldn’t they leave me in D.C. then? Q. Well, we can’t speak for people. A. Well, you know what?

I don’t know. Q. So you don’t know whether it happened in D.C., Virginia or Maryland? A. It happened. Q. We are not disputing it happened, but you don’t know where it happened, correct?

A. I don’t know where it happened, but it happened in the car. Q. How long were you in the car after this alleged rape occurred? A. Oh, they just did what they had to do and that was it. They wanted me up out of there then.

Q. Do you remember how long that was? A. I can’t remember. I know after it was over with they did what they had to do. They flipped me over and dragged me and just dropped me off, just like that.

In addition, Detective Milholen-Tribull testified on cross-examination that, when she interviewed the victim, she did not know where the sexual assault had occurred, other than that it had happened in the back seat of the car she had been put in. At the close of the State’s case, the defense moved for judgment of acquittal on several counts, some of which were granted. The defense rested and then moved to dismiss for lack of territorial jurisdiction. Defense counsel argued that the sum total of the evidence on territorial jurisdiction was that the victim did not know where the sexual assault had taken place and only knew that she was put in a car in Baltimore County, was driven around, at times at high speed, and wound up in Leakin Park, in Baltimore City, some five hours later.

According to defense ⁴⁵² counsel, “[biased on that ... the government has not proven beyond a reasonable doubt that this incident took place in the State of Maryland, therefore, this Court lacks jurisdiction, and we ask that it be dismissed.” The prosecutor, focusing not on State territorial jurisdiction but on venue (whether there was sufficient evidence that the sexual assault took place in Baltimore County, as opposed to in Baltimore City), responded that the victim did not know where the car went when she was inside of it because she was in the back seat with her head down. However, she argued, “there’s certainly sufficient evidence to infer from — the Court can infer and the jury could find that this assault took place in Baltimore County.” The prosecutor went on to point out that Leakin Park is near the western City/County line and is a “common dumping ground,” so the victim’s having been left there by her assailants did not mean that that was the location of the sexual assault. The court denied the motion to dismiss, stating, I have listened carefully to the testimony of [the victim] ... as it relates to the issue of jurisdiction, and I do feel that both this Court and the jury can reasonably infer that the assault and the sex offense did occur in Baltimore County. Based on the testimony and the evidence in this case, I feel that this Court does have jurisdiction, so your motion is denied.

The court then entertained argument of counsel on instructions. Defense counsel did not request an instruction on territorial jurisdiction, and no mention of any such instruction was made. The court did not give an instruction on territorial jurisdiction. After the court instructed the jury, neither counsel lodged an objection.

Indeed, they were asked by the trial judge whether they had any objections and each responded in the negative. In closing argument, the only reference to the physical location of the crime was defense counsel’s assertion that the victim’s lack of knowledge about where the crime took place, during the several hour period in which she was in the back ⁴⁵³ seat of the car, was one of many instances of doubt that, taken together, amounted to reasonable doubt. Defense counsel did not ask the jurors to make a factual finding as to whether the sexual assault had occurred in the State of Maryland. Relying upon West v. State, 369 Md. 150, 162 , 797 A.2d 1278 (2002), and Painter v. State, 157 Md.App. 1, 9-10 , 848 A.2d 692 (2004), the appellant argues that the evidence at trial generated a genuine dispute of fact on the issue of territorial jurisdiction, i.e., whether the sexual assault was committed in the State of Maryland; and that, once generated, the disputed issue was for the jury, as fact-finder, to decide, beyond a reasonable doubt.

He maintains that the trial judge should have submitted the issue of territorial jurisdiction to the jury for decision instead of ruling on the issue as a matter of law, and that, by so ruling, the judge “foreclosed defense counsel from requesting a jury instruction on the issue and from arguing to the jury that there was reasonable doubt that the offense occurred within the State of Maryland.” The State responds that the appellant did not preserve this issue for appellate review because he did not request an instruction about territorial jurisdiction or object to the absence of such an instruction. The State further argues that, in any event, the trial court properly denied the motion to dismiss because there was not a genuine dispute over territorial jurisdiction and, if there was, it was an issue of fact for the jury to decide only upon a request by the defense, which was not made. “Territorial jurisdiction describes the concept that only when an offense is committed within the boundaries of the court’s jurisdictional geographic territory, which generally is within the boundaries of the respective states, may the case be tried in that state.” State v. Butler, 353 Md. 67, 72 , 724 A.2d 657 (1999). In Maryland, territorial jurisdiction is not an element of the offense for which the defendant is on trial, so as to require that it be proven in every case. Id. at 79 n. 5, 724 A.2d 657 .

However, “when evidence exists that the crime may have been committed outside Maryland’s territorial juris ⁴⁵⁴ diction and a defendant disputes the territorial jurisdiction of the Maryland courts to try him or her, the issue of where the crime was committed is fact-dependent and thus for the trier of fact.” Id. at 79 , 724 A.2d 657 . Territorial jurisdiction may be proven by circumstantial evidence. McDonald v. State, 61 Md.App. 461, 468 , 487 A.2d 306 (1985). For territorial jurisdiction to be an issue for the jury to decide, the evidence must raise a genuine dispute about where the crime was committed. “A bald conclusory assertion that the offense was not committed within Maryland’s territorial jurisdiction ... is not, by itself, sufficient to create a dispute as to territorial jurisdiction — there must be some supportive evidence.” Butler, supra, 353 Md. at 79 , 724 A.2d 657 .

It is not enough for the defendant to “make a bare allegation that the crime might have occurred outside of Maryland in order to sufficiently generate the issue of lack of jurisdiction.” McDonald, supra, 61 Md.App. at 469 , 487 A.2d 306 . When the evidence generates a genuine issue of territorial jurisdiction, the prosecution must prove, beyond a reasonable doubt, that the crime was committed within the geographic limits of the State of Maryland. Butler, supra, 353 Md. at 83 , 724 A.2d 657 . In Butler , the defendant was convicted of murdering his girlfriend, her brother, and her young son.

The bodies were found in an abandoned car in the District of Columbia. Two of the victims had been shot and one had been asphyxiated. There was evidence that a gun had been fired inside the passenger compartment of the vehicle. The police were called when bystanders saw that the vehicle was on fire.

The fire later was determined to have been deliberately set. The defendant was charged in Prince George’s County, where he and his girlfriend and her son had been living. The prosecution introduced substantial evidence to support a finding that the murders happened in the State of Maryland, not in the District of Columbia where the bodies were found. The defense disputed that the crimes had occurred in Maryland, moving for judgment of acquittal on that ground and, ⁴⁵⁵ when its motion was denied, requesting a jury instruction on the issue of territorial jurisdiction.

The court denied the instruction, ruling that as a matter of law the crimes had been committed in Maryland. The Court of Appeals reversed and remanded for a new trial, holding that the defense had generated a genuine dispute as to territorial jurisdiction, which should have been submitted to the jury to decide. Three years after the Court of Appeals decided Butler , it ruled in West v. State, 369 Md. 150 , 797 A.2d 1278 (2002), that the State lacked territorial jurisdiction to prosecute a defendant for sexual offenses for which he had been tried and convicted. The evidence was uncontradicted that the defendant and an accomplice had abducted the victim in Prince George’s County and driven her into the District of Columbia, where they committed sexual offenses against her.

Afterward, they drove away from the scene, and directed the victim to get out of the car, which she did. They still were in the District at that time. At trial, the defendant moved to dismiss the sexual offense charges on the ground that the State did not have territorial jurisdiction to prosecute him, as the crimes took place in the District of Columbia. The trial court denied the motion and instructed the jury on territorial jurisdiction.

The jury found that Maryland had territorial jurisdiction and found the defendant guilty of the sexual offenses. The Court of Appeals reversed the convictions. It held that the uncontroverted evidence about the commission of the sexual offenses showed at the very least that all of the primary elements of those