McKinney v. State

BLOOM, Judge. In a non-jury trial in the Circuit Court for Anne Arundel County, appellant, Neal McKinney, was convicted on the second count (third degree sexual offense) 1 in each of three indictments that had been consolidated for trial over his objection. The court imposed consecutive prison terms, suspended them, and placed appellant on probation. He thereupon brought this appeal, in which he contends that the trial court erred: 1. in directing him to testify at the outset of his case; 2. in granting the State’s motion to consolidate the three indictments for trial; 3. in not granting his motion for new trial; 4. in failing to exclude the testimony of Bill Jump, whose statements and reports were withhold during discovery; and 5. in finding sufficient evidence to convict him on the second count in each indictment.

Our review of the record discloses no factual basis for the first contention and no legal basis for the third, fourth, and fifth contentions. We agree, however, that the trial court erred in consolidating the three indictments, and we shall reverse the convictions and remand for new trials on that basis. We must address the sufficiency issue because, regardless of the basis for reversal, if we were to conclude that the evidence was insufficient to support any of the convictions, a retrial on that charge would be barred. Tibbs v. Florida, 457 U.S. 31 , 102 S.Ct. 2211 , 72 L.Ed.2d 652 ¹¹⁵ (1982); Warfield v. State, 315 Md. 474, 502 , 554 A.2d 1238 (1989).

We need not and will not discuss the first, third, or fourth contention. Facts On 31 May through 3 June 1988, Bryant Woods Elementary School held an outdoor education program at Camp Letts in Anne Arundel County, where appellant served as a volunteer counselor. Appellant had recently retired from his position as a fifth grade teacher and was in the process of finding a position in a different field. The allegations of misconduct by appellant were made by three female students, who were campers at Camp Letts.

Each of them asserted that appellant touched her breasts, buttocks, and vaginal area. As the State concedes, this alleged sexual contact occurred through, not under, the girls’ clothing, and there was no physical injury. Appellant emphatically denied that he ever intentionally touched any of the girls’ breasts, buttocks, or vaginal areas. In response to a question from his attorney, appellant conceded that it was possible that he accidentally touched one or more of the girls, but on cross-examination he was steadfast in his denial that he even accidentally or unintentionally ever touched any of the girls on the breast or buttocks, or in the area of the vagina.

He freely admitted that in order to encourage or comfort a camper he would from time to time engage in normal, socially acceptable physical contact with a child. He would occasionally hug a child, or pat her on the back, rub her feet or ankles, or apply insect repellan! At mealtime he might tap a child on the knee to get her attention when he asked her to pass the bread or milk. Nevertheless, he consistently denied that any sexual contact or touching of private parts of any child’s body ever occurred.

I Maryland Code Ann., art. 27, § 464B(a)(3) (1987 Repl.Vol., as amended), provides that a person is guilty of a sexual ¹¹⁶ offense in the third degree if the person engages in sexual contact with another person who is under 14 years of age and the person performing the sexual contact is four or more years older than the victim. All three of the alleged victims were under the age of 14, and appellant was unquestionably more than four years older than any of them. As used in § 464B, the term “sexual contact” is defined in Md.Code Ann., art. 27, § 461 as: the intentional touching of any part of the victim’s or actor’s anal or genital areas or other intimate parts for the purpose of sexual arousal or gratification or for abuse of either party and includes the penetration, however slight, by any part of the person’s body, other than the penis, mouth or tongue, into the genital or anal opening of another person’s body if that penetration can be reasonably construed as being for the purpose of sexual arousal or gratification or for abuse of either party. It does not include acts commonly expressive or familial or friendly affection, or acts for accepted medical purposes.

One of the alleged victims testified that one day, while at lunch, appellant told her he was proud of her, patted her, rubbed her leg, and touched her vagina. On another occasion, appellant, who was sitting behind her, reached around her and touched her breasts. On the last day of camp, appellant hugged her and rubbed her buttocks. A second complaining witness testified that she was seated next to appellant during a meal and he patted her in the genital area.

On another occasion she was scraping food from her plate when appellant reached around from behind her and slid his hands down her chest and stomach as he helped her clean her plate. The third alleged victim testified that on four occasions appellant sat next to her at mealtimes and rubbed her leg and touched her vaginal area. Once, when she was about to perform a skit at campfire, appellant patted her buttocks. And on another occasion, when she was scraping food from ¹¹⁷ her tray, appellant reached around from behind her, scraped her tray, and brought his hands over her chest.

Appellant points to certain discrepancies between the girls’ testimony and pretrial statements they had made to their teachers, their principal, and a social worker. The resolution of such discrepancies and the credibility of the witnesses and their testimony was for the trier of fact. An appellate court, in determining whether the evidence introduced at trial was sufficient to support a conviction, does not weigh the evidence or determine the credibility of witnesses. On review, the test of sufficiency is whether the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational fact-finder of the existence of every element of the offense beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 319 , 99 S.Ct. 2781, 2789 , 61 L.Ed.2d 560 (1979); Branch v. State, 305 Md. 177, 183 , 502 A.2d 496 (1986). Pellucidly, the evidence in this case meets that test. II In its motion to consolidate the three cases for trial, the State alleged merely that joinder would be convenient and non-prejudicial. Although appellant objected that a joint trial of all three indictments would be highly prejudicial, the court granted the State’s motion.

Now the State argues that, despite the prejudice to appellant, joinder was permissible and within the court’s sound discretion because evidence supporting each indictment would be admissible at a trial on either or both of the other indictments. We disagree. Maryland Rule 4-253 provides for joinder of multiple offenses in the same charging document and for joint trial of multiple offenses. It also provides for severance where joinder would be prejudicial.

It states: (a) Multiple Offenses. — Two or more offenses, whether felonies or misdemeanors or any combination thereof, may be charged in separate counts of the same charging ¹¹⁸ document if the offenses charged are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan. Maryland Rules of Procedure, Rule 4-203(a). (b) Joint Trial of Offenses. — If a defendant has been charged in two or more charging documents, either party may move for a joint trial of the charges. In ruling on the motion, the court may inquire into the ability of either party to proceed at a joint trial.

Maryland Rules of Procedure, Rule 4-253(b). (c) Prejudicial Joinder. — If it appears that any party will be prejudiced by the joinder for trial of counts, charging documents, or defendants, the court may, on its own initiative or on motion of any party, order separate trials of counts, charging documents, or defendants, or grant any other relief as justice requires. In McKnight v. State, 280 Md. 604 , 375 A.2d 551 (1977), the Court of Appeals pointed out that Rule 4-253(c) (then Rule 745c) was patterned on Rule 14 of the Federal Rules of Criminal Procedure. Under the Maryland rule, as is true under its federal counterpart, severance is committed to the discretion of the trial judge, and the standard established by the rule is one that was applied at common law: “...

The matter of a misjoinder is generally left to the discretion of the trial court, and the courts will guard against injustice and abuse whenever apparent, and not permit such a joinder of counts as will embarrass the traverser in his defense____” Simmons v. State, 165 Md. 155, 165-66 , 167 A. 60 (1933) (citations omitted). 280 Md. at 608 , 375 A.2d 551 . Also noted in McKnight is that the rationale usually offered to justify joinder of similar offenses — that a single trial effects an economy by saving time and money to the prosecution, the defendant, and the criminal justice system — is questionable unless the evidence would be mutually admissible. Where the evidence is not mutually admissible, ¹¹⁹ each crime must be separately proved by its own evidence and witnesses. 280 Md. at 609 , 375 A.2d 551 . McKnight adopted the rule that a defendant charged with similar but unrelated offenses is entitled to a severance when he establishes that the evidence as to each individual offense would not be mutually admissible at separate trials.

This rule is based upon recognition of the fact that similar offense joinder is prejudicial to the defendant in three important respects. First, he may be embarrassed or confounded in presenting separate defenses. Secondly, the jury may cumulate the evidence of the various crimes charged and find guilt when, if the offenses were separately considered, it would not do so. At the least, the joinder of multiple charges may produce a latent hostility that by itself may prejudice the defendant’s case.

Thirdly, the jury may use the evidence of one of the crimes charged, or a connected group of them, to infer a criminal disposition on the part of the accused. Joinder will not cause any additional prejudice to the defendant if the evidence of one crime would be admissible in the trial of the other, but it is clear that, where offenses are joined for trial because they are similar in character but where the evidence would not be mutually admissible, the prejudicial effect is apt to outweigh the probative value of such evidence. Id. at 609-612 , 375 A.2d 551 . See also State v. Kramer, 318 Md. 576 , 569 A.2d 674 (1990); Tichnell v. State, 287 Md. 695 , 415 A.2d 830 (1980); State v. Jones, 284 Md. 232 , 395 A.2d 1182 (1979).

It is necessary, therefore, that we examine this case in the context of what has come to be known as the “other crimes rule.” We must determine whether, in a separate trial on one of the indictments, evidence to the effect that appellant committed an offense charged in either or both of the other indictments would be admissible. In State v. Faulkner, 314 Md. 630 , 552 A.2d 896 (1989), the Court of Appeals discussed the “other crimes rule” and ¹²⁰ its applicability in terms of a rule of exclusion of evidence with certain exceptions: We have often addressed the admissibility of “other crimes” evidence. Generally, “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.” Straughn v. State, 297 Md. 329, 333 , 465 A.2d 1166, 1168 (1983). See Tichnell v. State, 287 Md. 695 , 415 A.2d 830 (1980); State v. Jones, 284 Md. 232 , 395 A.2d 1182 (1979); Cross v. State, 282 Md. 468 , 386 A.2d 757 (1978); McKnight v. State, 280 Md. 604 , 375 A.2d 551 (1977); Ross v. State, 276 Md. 664 , 350 A.2d 680 (1976); see generally 5 L. McLain Maryland Practice: Maryland Evidence § 404.5, at 352 (1987).

Evidence of other crimes may tend to confuse the jurors, predispose them to a belief in the defendant’s guilt, or prejudice their minds against the defendant. Ross, 276 Md. at 669 , 350 A.2d at 684 ; see also Hoes v. State, 35 Md.App. 61, 71 , 368 A.2d 1080, 1086 , cert. denied 280 Md. 731 (1977) (“jury may be predisposed to convict [the defendant’s] ‘reputation’ ”). Evidence of other crimes may be admitted, however, if it is substantially relevant to some contested issue in the case and if it is not offered to prove the defendant’s guilt based on propensity to commit crime or his character as a criminal. Ross, 276 Md. at 669 , 350 A.2d at 684 ; see generally C. McCormick, Evidence § 190 (E. Cleary 3d ed. 1984); L. McLain, supra, § 404.5, at 353.

Thus, there are numerous exceptions to the general rule that other crimes evidence must be suppressed. Evidence of this type may be admitted if it tends to establish motive, intent, absence of mistake, a common scheme or plan, identity, opportunity, preparation, knowledge, absence of mistake or accident. See Ross at 669-670 , 350 A.2d at 684 ; C. McCormick, supra, § 190, t 558-564; L. McLain, supra, § 404.5, at 353. But, because of the potential danger involved, the admission of other crimes evidence “should be subjected to rigid scrutiny by the courts — ” Ross at 671 , 350 A.2d at 685 .

Additionally, ¹²¹ the evidence proffered to the trial judge must be clear and convincing in establishing the accused’s involvement in the other crimes. Cross, 282 Md. at 478 , 386 A.2d at 764 . 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 determines whether the evidence fits within one or more of the Ross exceptions. That is a legal determination and does not involve any exercise of discretion.

See Cross, 282 Md. at 474 , 386 A.2d at 761 ; Moore v. State, 73 Md.App. 36, 44 , 533 A.2d 1, 5 (1987), cert. denied, 311 Md. 719 , 537 A.2d 273 (1988). If one or more of the exceptions applies, the next step is to decide whether the accused’s involvement in the other crimes is