Reece v. State

GRAEFF, J. A jury in the Circuit Court for Montgomery County found Larry Reece, appellant, guilty of the following crimes: sex abuse of a minor (Count 1); second-degree sexual offense, fellatio on a minor (Count 2); second-degree sexual offense, making a minor perform fellatio on appellant (Count 3); and second-degree sexual offense, performing anal intercourse on a minor (Count 4). The court sentenced appellant as follows: 15 years on the conviction for sex abuse of a minor; 10 years, consecutive, on the conviction for second-degree sexual offense, performing fellatio on a minor; and 10 years, concurrent, on each of the other two convictions for second-degree sexual offense. On appeal, appellant presents three questions for our review, which we have reordered and rephrased slightly, as follows: 1. Did the circuit court err in failing to conduct a sufficient hearing before it admitted child hearsay testimony through Dr. Shukat? 2.

Did the circuit court err in admitting the minor’s testimony without allowing appellant to challenge the reliability of the minor’s testimony? ³¹² 3. Did the circuit court err in permitting the State to alter the time frame specified in the indictment after the trial had begun? For the reasons set forth below, we answer these questions in the negative, and accordingly, we shall affirm the judgments of the circuit court. FACTUAL AND PROCEDURAL BACKGROUND R.M., who was seven years old in December 2012, lived with his mother and father, Mrs. M. and Mr. M., his three older sisters, J.M., C.M., and M.M., and his uncle. 1 They lived next door to appellant, who was 65 years old at the time of trial, for several years.

Appellant had dinner with the M. family once a week, and R.M. went to appellant’s house, where he and appellant would play games, watch television, and practice using guns. On some occasions, R.M. went to appellant’s house alone, and on other occasions, he went with M.M. R.M. referred to appellant as his “buddy.” R.M. testified that appellant first touched him, on what R.M. identified as his “front and back private,” in appellant’s locked bedroom. R.M. recalled appellant “grabbing money to go to the pool,” but then saying “[w]hy don’t we do something before we go?” When R.M. asked “what,” appellant took off his clothes and “did the F-word to me.” Appellant used his hand to touch R.M.’s front private and used his front private to touch R.M.’s back private. R.M. stated that it “felt weird.” On another occasion, while M.M. also was in the house watching a movie, appellant used his mouth to touch R.M.’s front private in appellant’s bathroom.

Another incident occurred when R.M.’s cousin, B.H. went to appellant’s house with R.M. Appellant told them to come into his bedroom. Appellant told B.H. to take off his clothes, but B.H. said no and argued with appellant. ³¹³ R.M. described another incident in appellant’s bathroom where he put his mouth on appellant’s front private. R.M. described appellant’s front private as “hairy,” and he said it tasted like “rotten cheese.” After R.M. reported the abuse to his mother, she took him to the hospital. Initially, he did not tell the doctors what had happened with appellant because he “was crying a lot.” It was not until after his mother calmed him down that he could tell the doctors what had happened.

R.M.’s oldest sister, J.M., told R.M. to tell the truth. M.M., who was thirteen years old at the time of trial, testified that she met appellant when she was six years old and R.M. was a newborn. Appellant was like a “grandpa” to the M. children. He would do everything with them that a grandpa would do, such as play outside, go to the park, and watch television.

In the summer of 2011, R.M. and M.M. sometimes would be alone with appellant at his house. On one occasion, appellant told M.M. that R.M. liked to jump on him and play on his bed. M.M. described one incident at appellant’s house in the summer of 2011, when R.M. asked her to help him in the bathroom, but appellant stopped her and told her that he was going to do it. M.M. stayed in the living room.

In another incident, the entire M. family went to the fair with appellant, and when appellant was leaving, he kissed R.M. on the mouth, which M.M. thought was unusual. R.M.’s father noticed some unusual behavior between appellant and R.M. in the summer of 2011. On one occasion, at the fairgrounds, he observed appellant kiss R.M. on the mouth. On another occasion, after the M.s returned from a trip to South Carolina, appellant was in R.M.’s bedroom with the door locked.

Another time, two or three months prior to R.M.’s disclosure of the abuse, Mr. M. came home from work and inquired as to R.M.’s whereabouts. His wife told him that R.M. was with appellant, and when he went to appellant’s door and knocked, it took appellant “longer than usual,” a “minimum of two minutes,” to open the door. ³¹⁴ That summer, R.M. told his father that his testicles hurt. Mr. M. noticed that R.M. was walking and sitting differently. Three or four days later, on August 22, 2011, the M.s took R.M. to the doctor.

R.M.’s mother testified that she asked appellant to babysit R.M. and M.M. on three occasions that summer. R.M. also went to appellant’s house alone on a few occasions, although he usually went with M.M. On one occasion, R.M. and M.M. went to appellant’s house to play, but appellant sent M.M. home, saying that he was “going to dedicate an hour to” R.M. On August 20, 2011, R.M. pointed to M.M.’s crotch and said the word “pussy.” When J.M. asked where he learned that word, R.M. “became very nervous and just said forget it.” The following morning, August 21, while Mrs. M. was giving R.M. a bath, R.M. complained to her that his testicles hurt. She asked him why, and R.M. responded that appellant had put R.M.’s privates in his mouth and pulled them, telling R.M. that he was giving him a massage. R.M. also reported that appellant would put his private parts in R.M.’s behind and in his mouth, and appellant told R.M. that it was okay for appellant to touch him there.

On August 22, Mrs. M. took R.M. to the pediatrician. They then went to Shady Grove Hospital for a sex abuse forensic evaluation. 2 R.M. was nervous because appellant told him that he would be arrested if he said anything. After the doctor told R.M. that if he did not want to speak to her, she would let the police come, R.M. became more scared and said that he would talk to the doctor. J.M. recorded R.M.’s statements to the doctor at the hospital.

She testified that she did so because she wanted the physical evidence. R.M. did not want to stay at the hospital, and he kept asking to go home. J.M. told her brother to tell the truth. At ³¹⁵ certain points in the recording, R.M. said “no” to questions about whether R.M. had ever touched any part of appellant with his mouth and whether appellant had ever touched R.M. “where he pooped from.” When R.M. responded “no” to those questions, J.M. told him that he needed to tell the truth.

R.M. told her that he was answering “no” because he did not want to get appellant in trouble. Eventually, R.M. revealed that appellant had sucked on his testicles and had kissed him on the mouth. On August 24, 2011, R.M. was referred to Dr. Shukat, a pediatrician with a specialty in child abuse and the medical director of The Treehouse Child Assessment Center. Dr. Shukat testified that R.M.’s parents were first alerted that there may be an issue after R.M. used the word “pussy,” a word that the M.s never used.

In conducting her examination, Dr. Shukat explained to R.M. that she was a doctor, and it was her job to talk with him and examine him. She asked R.M. open-ended questions about whether he had ever been touched or hurt in a way that he did not like, to which R.M. “stated immediately” that appellant had touched him with his hands and mouth on his penis and testicles. R.M. stated that appellant’s penis went into his “butt,” and appellant pushed R.M.’s head down toward his genitals and told him to suck his genitalia. R.M. stated that appellant would also perform the same oral manipulations on R.M.’s genitals.

Appellant also showed R.M. pornography, with naked men together and naked men and women together. R.M. described appellant “put[ting] his penis in my butt” as “doing boy stuff,” stating that he did not like it and wanted to play normally. R.M. told Dr. Shukat that he had scrotal pain, in association with appellant sucking his genitalia, and he had pain in his “butt.” Upon physical examination, Dr. Shukat discovered two fissures, superficial tears in the skin, along R.M.’s anal opening. Anal fissures are unusual in boys without a history of sexual abuse.

R.M. showed Dr. Shukat with his own hands how appellant would manipulate his penis, and he described appellant ejaculating, which he called “white stuff.” When he described appellant penetrating R.M.’s anus with his penis, he ³¹⁶ told Dr. Shukat that “it went in.” Dr. Shukat described R.M. as “serious” and “very factual” when talking to her, stating that “[y]ou could tell that he did not like what had happened to him.” R.M. reported that appellant told him to keep what appellant was doing to him a secret, or appellant would get in trouble. On cross-examination, Dr. Shukat agreed that she did not have knowledge regarding prior discussions that R.M. had with his family members. She was not aware that R.M. had been at Shady Grove Hospital two days prior to her examination. R.M.’s cousin, B.H., testified that he visited the M.s often in the summers, and he stayed with them for a few weeks in the summer of 2011.

He knew appellant from his visits with the M.s, and he said that appellant would teach the children how to play sports and shoot weapons. Appellant always kept snacks in his house for the children. On one occasion that summer, B.H., who was then thirteen years old, went to appellant’s house after R.M. was already there. When B.H. walked into the house, he saw R.M. on his knees on the couch, almost on top of appellant.

Appellant told B.H. to come sit on the couch. He told B.H. that he and R.M. “play with each other,” and he had pornographic books in his bedroom and pornographic movies in the basement. Appellant then paused the movie that he and R.M. were watching, locked the front door to the house, and took the boys into his bedroom. B.H. sat on the bed, and appellant took five or six pornographic magazines from his drawer.

Appellant then laid down on the bed and told B.H. to “look.” When B.H. turned to look, appellant was masturbating on the bed. Appellant then grabbed B.H. at his waist and told R.M. to help him take B.H.’s belt off. B.H. said no. A few minutes later, they returned to the living room, and appellant continued to talk about what he and R.M. did together, telling B.H. that he had pornographic movies in the basement.

M.M. then knocked on the door. B.H. never went into the basement, and he did not ³¹⁷ see the movies. Appellant then took B.H., R.M., and M.M. to Wal-Mart and bought two Transformers. B.H. testified that this incident occurred before their trip to South Carolina. 3 B.H. never reported the incident because appellant told him that, if he told anyone, “he was going to have trouble,” and B.H. was scared that appellant would kill his aunt and uncle.

Detective Torrie Cooke, a member of the Montgomery County Police Department’s Youth and Family Crimes Division, began an investigation into the allegations of abuse in August 2011. He executed a search warrant for appellant’s house and seized pornographic magazines from a drawer in appellant’s bedroom, as well as pornographic videos in the basement. Appellant denied having any sexual contact with R.M. He testified that he found R.M. and B.H. in his house looking at the pornography. As indicated, the jury convicted appellant of sex abuse of a minor and three counts of second-degree sexual offense.

This appeal followed. DISCUSSION I. R.M.’s Hearsay Statements to Dr. Shukat Appellant contends that the circuit court failed to conduct a proper hearing before calling Dr. Shukat to testify to R.M.’s hearsay statements to her. The State argues that the trial court properly admitted R.M.’s statement to Dr. Shukat pursuant to Md.Code (2011 Supp.) § 11-304 of the Criminal Procedure Article (“CP”), asserting that the court “carefully considered each of the factors set forth in the statute before ³¹⁸ determining that R.M.’s statements to Dr. Shukat had particularized guarantees of trustworthiness.” Pursuant to CP § 11-304, an out-of-court statement to a physician by a child, who is under the age of 13 and alleged to be a victim of sexual abuse, is admissible if certain conditions are met. One of the conditions is that the statement must have particularized guarantees of trustworthiness.

CP § 11 — 304(e)(2) sets forth a non-exclusive list of factors for the trial court to consider in determining whether a statement meets the requirement of trustworthiness: (2) To determine whether the statement has particularized guarantees of trustworthiness under this section, the court shall consider, but is not limited to, the following factors: (i) the child victim’s personal knowledge of the event; (ii) the certainty that the statement was made; (iii) any apparent motive to fabricate or exhibit partiality by the child victim, including interest, bias, corruption, or coercion; (iv) whether the statement was spontaneous or directly responsive to questions; (v) the timing of the statement; (vi) whether the child victim’s young age makes it unlikely that the child victim fabricated the statement that represents a graphic, detailed account beyond the child victim’s expected knowledge and experience; (vii) the appropriateness of the terminology of the statement to the child victim’s age; (viii) the nature and duration of the abuse or neglect; (ix) the inner consistency and coherence of the statement; (x) whether the child victim was suffering pain or distress when making the statement; (xi) whether extrinsic evidence exists to show the defendant or child respondent had an opportunity to commit the act complained of in the child victim’s statement; ³¹⁹ (xii) whether the statement was suggested by the use of leading questions; and (xiii) the credibility of the person testifying about the statement. Subsection (f) requires the court to make an on-the-record finding, outside the presence of the jury, “as to the specific guarantees of trustworthiness that are in the statement” and “determine the admissibility of the statement.” CP § 11-304(f). Pursuant to subsection (g), the court, in making a determination under subsection (f), “shall examine the child victim in a proceeding in the judge’s chambers, the courtroom, or another suitable location that the public may not attend.” CP§ 11 — 304(g)(1). 4 In reviewing the factual findings required by the statute, we apply the “clearly erroneous” standard of review. Jones v. State, 410 Md. 681, 700 , 980 A.2d 469 (2009).

As explained below, we are not persuaded that the circuit court’s finding that R.M.’s statements to Dr. Shukat had particularized quantities of trustworthiness was clearly erroneous. On July 11, 2012, the circuit court held the requisite pretrial hearing on the admissibility of R.M.’s out-of-court statements to Dr. Shukat. Appellant called Dr. Leigh Hagan, a clinical and forensic psychologist, who testified regarding the proper methodology to conduct a forensic evaluation of a minor child. 5 ³²⁰ According to Dr. Hagan, in making a CP § 11-304 determination, it was “essential” to consider prior interviews to which R.M. was subjected prior to his interview with Dr. Shukat. Based on Dr. Hagan’s review of the records in the case, including the transcript of the recording that J.M. made at the hospital, as well as deposition testimony and reports, all of which was admitted at the hearing, it was significant that R.M. initially denied abuse, but after four hours of questioning, he finally disclosed the abuse.

Dr. Hagan expressed concern with “the use of the word disclose,” which he viewed as implying that there was something to disclose and a “result-driven way of thinking.” He also found some interviewing techniques troubling, such as responding to R.M.’s denial that appellant touched him by saying: “Really?” Dr. Hagan then expressed his thoughts on each of the factors set forth in the statute. He opined that R.M.’s statements did not contain particularized guarantees of trustworthiness, stating that “it is a classic case of unreliability and inconsistency” because R.M.’s answers were “yes, no, yes, no, can’t remember” based on who was asking the question, when it was asked, and the attendant circumstances. Dr. Hagan acknowledged that his practice consisted entirely of reviewing materials in preparation of possible litigation and testifying in court. He also acknowledged that a six-year-old child would be unable to describe fellatio, ejaculation, and anal intercourse unless the child had either experienced it or had been exposed to it in print or electronic media, and that R.M. had described those scenarios in his own words.

He agreed that R.M. consistently reported having pain in his testicles. The State then called Dr. Shukat to testify. After R.M. was referred to her from Shady Grove Hospital, Dr. Shukat performed a medical examination of R.M., which included taking a medical history from R.M.’s parents, with the aid of a Spanish interpreter, taking a history from R.M., and conducting a physical examination. Dr. Shukat was not aware that R.M. ³²¹ had given a statement the previous day to another health care worker, in which he initially denied that he had been touched.

Although she acknowledged that would have been “interesting information,” she does her own independent assessment. Dr. Shukat has received extensive training in how to interview children, and she testified that, when she interviews them, she tries to get a feel for what they know and their cognitive development. She asks the children open-ended questions, and when they are “consistent in their statements and explain sensations associated with their experiences, [she] find[s] that credible for a six-year-old child.” It is a “very common phenomenon” for young children not to want to disclose abuse because they are afraid that they will get into trouble or that the abuser, whom they trust, will get into trouble. Dr. Shukat also explained that young children generally are unable to specify the date of the onset of abuse because, developmentally, they do not have a good relationship with timing.

Dr. Shukat, found R.M. to be “very articulate.” He told her “very detailed histories of genital pain, genital contact, and what he saw in terms of adult masturbation and ejaculation.” R.M. was very specific about cause and effect, and he gave descriptions of having experienced scrotal pain and rectal pain that were consistent with his descriptions of how appellant injured him by sucking on his testicles and by putting his testicles, as R.M. described it, into R.M.’s “butt.” R.M.’s statements to Dr. Shukat were consistent with the information that she had obtained from his parents, including that he had complained of scrotal pain and had exhibited behavioral changes prior to his disclosure. After the hearing, the court ruled that R.M.’s statements to Dr. Shukat were admissible pursuant to CP § 11-304. The court noted that it had “considered Dr. Shukat’s report, her deposition, and her testimony at the hearing on July 11th, 2012.” With respect to the factors set forth in CP § 11-304(e), the court stated as follows: ³²² [T]he first one is the child victim’s personal knowledge of the event. [R.M.] had personal knowledge of the event at the time he made the statement to Dr. Shukat. He was able to explain where he was, what he was doing, and what the defendant had allegedly done to him.

Dr. Shukat adequately described the circumstances surrounding the statement. The fact of the statement to Dr. Shukat may have been different from other statements that [R.M.] made as a matter for cross-examination of the adults, who will be testifying as well as [R.M.] in order to [assess] its credibility. Two: the certainty that the statement was made. Dr. Shukat had ascertained that the statement was made and indicated as such in her report and during her testimony.

Three: any apparent motive to fabricate or exhibit partiality by the child victim, including interest, bias, corruption, or coercion. Although there may have been some coercion of [R.M.] when he was kept for about four hours with his sister and the nurse asking suggestive questions — that does not mean that [R.M.] was not truthful in his statements to Dr. Shukat. Four: [whether] the statement was spontaneous or directly responsive to questions? The statement to Dr. Shukat was directly responsive to questions, but the questions were open-ended and not suggestive.

Five: the timing of the statement. The statement was made shortly after [R.M.] told his parents about what happened, but it is not clear when the alleged events occurred. Six: whether the child victim’s young age makes it unlikely that the child victim fabricated the statement that represents a graphic, detailed account beyond the child victim’s expected knowledge and experience. Due to [R.M.’s] young age, it is unlikely that he fabricated the statement, because his account provides details beyond his expected knowledge and experience.

Seven: the appropriateness of the terminology of the statement to the victim’s age. [R.M.] did not use terminology in such a way that it would appear that someone had told him to say those words. Eight: the nature and duration of the abuse or neglect. The nature and ³²³ duration is several months. Nine: the inter-consistency and coherence of the statement.

The statement itself was consistent and coherent. It was not, however, consistent with other statements that [R.M.] told to other people. Ten: whether the child victim was suffering pain or distress when making the statement. [R.M.] was not distressed when he made the statement. Eleven: whether extrinsic evidence exists to show[ ] the defendant or child respondent had an opportunity to commit the act complained of in the child victim’s statement.

Extrinsic evidence exists to show the defendant had the opportunity to commit the act, although perhaps not on the date alleged. Twelve: [whether the] statement was suggested by the use of leading questions? Dr. Shukat did not use leading questions. And thirteen: the credibility of the person testifying about the statement.

Dr. Shukat is credible. There is no evidence that she