Jones v. State

Shaw Geter, J. Appellant, Joshua Isaiah Jones, was convicted by a jury in the Circuit Court for Prince George's County of three counts of human trafficking of a minor and one count of receiving the earnings of a prostitute. He was acquitted of conspiracy to engage in human trafficking. The court sentenced appellant to twenty-five years' imprisonment, with all but seven years suspended for one count of human trafficking; a consecutive ten-year suspended sentence for receiving the earnings of a prostitute; and five years' supervised probation. The remaining human trafficking convictions merged for purposes of sentencing.

Appellant presents the following questions for our review, which we have reordered and rephrased slightly: 1. Did the circuit court abuse its discretion by providing a supplemental jury instruction rather than referring the jury to the written pattern jury instructions already given? 2. Was there insufficient evidence to convict appellant of human trafficking of a minor and receiving the earnings of a prostitute? 3. Did the circuit court err in ordering separate sentences for receiving the earnings of a prostitute and human trafficking of a minor?

For the reasons set forth below, we shall affirm the judgments of the circuit court. BACKGROUND On May 4, 2015, Prince George's County Police Detective Antonio Hill searched the website Backpage 1 in his capacity as an undercover detective and retrieved an advertisement that included photographs of a woman's face and body, and a caption that read, in part: "Hello get a taste of Kandy... Out & Incalls." Suspecting that the advertisement was for prostitution, the detective called the number provided and, posing as a prospective client, arranged to meet "Kandy" for a "date." Detective Hill proceeded to the Comfort Inn in College Park accompanied by a team of officers and, when he arrived, Kandy advised him to come to Room 216. The detective entered the hotel room and after a brief negotiation, handed Kandy $200 in exchange for sexual acts.

Under the pretext of using the bathroom, the detective opened the door for the arresting officers. Kandy reported that she was a juvenile named "R.D." 2 and officers from the Maryland Child Exploitation Task Force took the lead in the investigation. The police obtained a copy of the room rental agreement from hotel staff, which indicated that appellant had checked in that day and had reserved the room for one night. The police convened in the parking lot to wait for appellant, and when he arrived, he was apprehended.

He was charged by indictment with conspiracy to commit human trafficking, three counts of human trafficking of a minor, and receiving the earnings of a prostitute. At trial, the State alleged that appellant, acting as either a co-conspirator or an accomplice, coordinated with Rashid Mosby and Terra Perry to recruit R.D. to engage in prostitution. R.D., a witness for the State, testified that she was seventeen years old and homeless when she saw an advertisement on social media promising that she could earn $30,000. After corresponding with two or three individuals for several weeks, she was emailed an electronic train ticket to transport her from North Carolina to Washington, D.C. On April 30, 2015, Mosby met R.D. at Union Station, and during the drive to Maryland, he informed her that she was expected "to have sex and give him all the money." Mosby then placed R.D. in a hotel room with a woman who was working as a prostitute.

A conflict arose between Mosby and R.D. because she did not accept any "dates" and, on May 2, 2015, after an argument with another woman, she was kicked out of the hotel. Mosby told R.D. to leave with appellant, who then drove her to Target and his house. R.D. testified that she knew appellant by the alias "Caddy" and that she had previously seen him speaking with Mosby at the hotel. According to R.D., she was in appellant's one-bedroom apartment for two days.

While she was at his house, appellant took her to two "outcalls" and she gave him $200 she received in exchange for intercourse. R.D. testified that she told appellant several times that she wanted to go home, and his response was that she owed him money. On May 4, 2016, appellant drove R.D. to the Comfort Inn and reserved her room, where she was discovered by police. The State introduced data extracted from R.D.'s mobile phone using "Cellbrite" technology, including call logs, chat messages, emails, and contact information.

A Cellbrite extraction report generated on May 4, 2015, reflected several telephone calls between appellant and R.D. on May 3, 2015 and May 4, 2015. The police also retrieved a message that stated: "If you want to go to Washington, he will bring you there. Okay. Text him now and tell him Caddy told you to call.

Okay." Within her contacts, the police identified a telephone number for Mosby that was assigned the contact name "BOSS," while appellant's telephone number was assigned the contact name "BO$ $." Photographs from the exterior of the hotel were also introduced into evidence, which showed that a vehicle that resembled appellant's Hyundai was in the parking lot when Mosby kicked R.D. out of the hotel. The State also introduced testimony from Amelia Rubenstein, an expert in human trafficking, who explained that "debt bondage" occurs when a human trafficking victim is told that they have a debt and the trafficker forces the victim to work it off. Ms. Rubenstein testified that the debt is usually incurred traveling somewhere, and the victim is never able to repay the debt. Appellant, testifying in his defense, acknowledged that he had routinely solicited prostitutes before and claimed that he first encountered R.D. after he contacted the telephone number on her Backpage advertisement and arranged to meet her at a hotel.

He said that he purchased a soda and a "Black and Mild" cigar for her, and then left the hotel. He returned, however, when R.D. contacted him and said that an incident had occurred with her companions. Appellant stated that he drove R.D. to Target, gave her money to buy clothes, then took her to Wendy's for a meal; however, she left the restaurant when another man picked her up. Appellant denied seeing R.D. on May 3, 2015.

He claimed he picked her up from a hotel in College Park on May 4, 2015, and, at her request, drove her to the Comfort Inn. He testified that he reserved the room for her because he believed that R.D. would reimburse him from funds she was expecting from her family. He claimed that when he returned to take R.D. to purchase her train ticket home, he was apprehended. He denied the State's allegation that he had transported or induced R.D. to go any place for purposes of prostitution or had received any money R.D. obtained from prostitution.

He also denied any relationship with Mosby or Perry. Appellant's brother, Joe Rush, a witness for the defense, testified that appellant lived with him in a two-story townhouse in Greenbelt. Mr. Rush and the mother of his children, Angelia Johnson, both stated that they did not see appellant bring any women into their house on the weekend preceding appellant's arrest and neither recognized a photograph of R.D. Additional facts will be included as they become relevant to our discussion, below. DISCUSSION I. Jury Instructions A. Preservation of Grounds for Appeal Appellant contends the trial court abused its discretion by giving a "verbal explanation" of the pattern instruction in response to a question posed by the jury during deliberations.

Although he acknowledges that defense counsel did not raise any specific objections about the content of the instruction after it was given, appellant now argues the court should have referred the jury back to the pattern criminal jury instructions that had already been provided to the jury verbally and in writing, rather than give a supplemental instruction. The State claims that the issue is not preserved under Md. Rule 4-325(e) because defense counsel did not clearly state the grounds for the objection after the instruction was given. The threshold issue we must address, therefore, is whether appellant has preserved the alleged jury instruction error for review. Maryland Rule 4-325(e) governs the preservation of error in jury instructions and states: No party may assign as error the giving or the failure to give an instruction unless the party objects on the record promptly after the court instructs the jury, stating distinctly the matter to which the party objects and the grounds of the objection.

"[T]he purpose of Rule 4-325(e) is 'to give the trial court an opportunity to correct its charge if it deems correction necessary.' " Watts v. State , 457 Md. 419 , 426, 179 A.3d 929 (2018) (quoting Gore v. State , 309 Md. 203 , 209, 522 A.2d 1338 (1987) (additional citation omitted). It is well-established that the failure to object prevents a party from raising an alleged instructional error under Rule 4-325(e) on appeal. Id. at 426-27, 179 A.3d 929 (citations omitted). The Court in Watts reiterated the following requirements that must be satisfied to preserve an alleged jury instruction error for appellate review: [T]here must be an objection to the instruction; the objection must appear on the record; the objection must be accompanied by a definite statement of the ground for objection unless the ground for objection is apparent from the record and the circumstances must be such that a renewal of the objection after the court instructs the jury would be futile or useless. 457 Md. at 426 , 179 A.3d 929 (quotation marks omitted).

The Court noted, however, that "although strict compliance ... is preferred," an objection that "substantially complies" with Rule 4-325(e) may yet preserve a claim of error for review. Id. at 427 , 179 A.3d 929 (citing Bennett v. State , 230 Md. 562 , 569, 188 A.2d 142 (1963) ). Accordingly, where "the record reflects that the trial court understands the objection and, upon understanding the objection, rejects it," the issue was preserved. Id. at 428, 179 A.3d 929 (citing Sergeant Co. v. Pickett , 283 Md. 284 , 290, 388 A.2d 543 (1978) ).

Similarly, an alleged error was deemed preserved for appellate review where the trial court recognized that an effective objection was made. Id. (citing Bennett v. State , 230 Md. 562 , 569, 188 A.2d 142 (1963) ). However, where the trial record reflected only a vague comment without an articulable basis for the objection, the Court in Watts noted that the issue was not preserved.

Id. at 427 , 179 A.3d 929 (citing Bowman v. State , 337 Md. 65 , 68, 650 A.2d 954 (1994) ). Here, the jury sent out a note during deliberations, asking: "Page 11, para 1 and 2. Please clarify what is meant by all of the elements of Human Trafficking-Minor. We are confuse[d] on the 2[nd] para of "or" when it address' the elements." Following a discussion with counsel as required by Md. Rule 4-326(d)(2)(C), the trial judge replied with a note requesting the jury circle the confusing portion of the written instructions.

A short time later, the jury submitted a copy of the instructions with the following section of Human Trafficking-Minor (MPJI-Cr 4:17:19) underlined: "the State must prove all of the elements of Human Trafficking and[.]" The jury also underlined the following section of the Accomplice Liability Instruction (MPJI-Cr 6:00): "with the intent to make the crime happen, knowingly aided, counseled, commanded, or encouraged the commission of the crime, or communicated to a participant in the crime that he was ready, willing, and able to lend support, if needed[.]" The jury included a handwritten note in the margin asking "Does the state ha[ve] to prove all of these elements." After the court conferred with both counsel on how to interpret the question, the following discussion occurred: [DEFENSE COUNSEL]: I would say they have the instructions. THE COURT: No, I'm not going to do that. I mean, I know the majority of the time, that's the proper response, but they're asking a specific question as to how the instructions are worded. * * * [DEFENSE COUNSEL]: I just - I'm going to go back to what I said before, just so the record is clear. They - I believe that the instruction is clear.

And I am always a big fan of, unless we've made a mistake in the instruction, and I don't believe we have, telling them that they have the instructions and - THE COURT: Yes, normally, when they have a question about law in general, but when they have a specific question about wording, and they're asking you, we don't understand or we're not clear on the wording, it's not good enough just to tell them - * * * THE COURT: They say that they don't understand. And we have to give them assistance. [THE STATE]: Yes, sir. THE COURT: So for the State to prove guilt under the theory of accomplice liability, the State must prove that human trafficking of a minor occurred and that the defendant, with the intent to make the crime happen, either knowingly aided, counseled, commanded or encouraged the commission of the crime. If any of those actions described took place and the State has proven it beyond a reasonable doubt, then the State has proven accomplice liability, or if the State has not proven the above, they could still prove accomplice liability beyond a reasonable doubt if they have proven that with the intent to make the crime happen, the defendant communicated to a participant in the crime that he was ready, willing and able to lend support if needed. [THE STATE]: Fine.

I'm fine with that. THE COURT: You have your objection to me responding to the jury with anything other than, you already have the instructions, please refer back to the instructions as noted. [DEFENSE]: Okay. * * * THE COURT: And your objection still remains on the record. [DEFENSE]: Thank you. THE COURT: As to my response to the jury note, but in light of the decision I have made, you're agreeing that in light of what I'm going to do, that you don't agree with, that is the best way to go forward after my decision has been made. (Emphasis added.).

After delivering the instruction, the court noted that defense counsel's objection remained on the record. The record before us clearly indicates that appellant's counsel specifically objected to the court reciting any instruction other than referring the jury back to the pattern instructions they had already received. The trial court understood the objection and repeatedly acknowledged that it was made before ultimately rejecting it and ruling that the jury would receive a supplemental instruction. Considering that the court recognized the earlier objection after delivering the instruction, defense counsel was not required to reassert the objection to preserve the issue for appeal.

Since appellant challenges the appropriateness of the trial court supplementing the jury instructions, which is the same issue objected to at trial, we find that the issue is preserved. B. Response to Question from Jury The trial court responded to the note by delivering the following instruction to the jury: Under the theory of accomplice liability, the State must prove, regarding the underlined portion where it says, with the intent to make the crime happen, comma, knowingly aided, comma, counseled, comma, commanded, comma, or encouraged the commission of the crime, the State must be able to prove one of these phrases. That is, with the intent to make the crime happen, the State must prove the defendant knowingly aided; or with the intent to make the crime happen, the defendant counseled; or with the intent to make the crime happen, he commanded. All right?

Or with the intent to make the crime happen - I'm