Robinson v. State

RAKER, J. This is a criminal case involving sexual abuse against a minor child by a family member. Appellant’s primary issue on appeal is that the definition of “family member” in § 3-602 of the Criminal Law Article of the Maryland Code (2002, 2006 ²¹¹ Cum.Supp.) 1 is unconstitutionally vague because of its broad definition of the term “family member.” Appellant further argues that, because he does not fall within the definition of “family member” if the definition is construed to avoid an unconstitutional construction of the statute, there was not sufficient evidence to convict him of child sexual abuse. Because appellant raises these issues for the first time on appeal before this Court, we shall hold that appellant failed to preserve them for appellate review. He argues, in the alternative, that if these issues were not preserved for review, he received ineffective assistance of counsel.

We will not review appellant’s claim on this point because we do not find any exception to the general rule that such claims be brought in a post-conviction proceeding applicable in this case. David Robinson, appellant, was indicted by the Grand Jury for Montgomery County for sexual abuse of a minor, second degree rape, attempted second degree rape, second degree sexual offense, and two counts of third degree sexual offense. Appellant was charged with sexually abusing his niece, V.O. Appellant was married to V.O.’s mother’s sister, Edna Mae Robinson, at the time of the incident, although they had separated. Between the time of the incident and trial, appellant and Ms. Robinson received an absolute divorce.

V.O. testified that, on one occasion when appellant came to her house to repair her computer, appellant digitally penetrated her vagina, performed cunnilingus on her, and engaged in vaginal intercourse with her, all without her consent. Appellant testified that he had never had any sexual contact with V.O. It was not disputed at trial that appellant was the husband of V.O.’s mother’s sister—her uncle by marriage. During defendant’s case in chief, Edna Mae Robinson testified that Mr. Robinson was her ex-husband and V.O. is her “sister’s daughter, my niece.” Mr. Robinson testified that he had been ²¹² married to Ms. Robinson and that at the time of the incident “I just separated from my ex.” Appellant moved for judgment at the close of the State’s case, arguing only that “there’s been no testimony from any of the fact witnesses to establish, in fact, what the time frame of this event was.” The court denied the motion. Appellant moved for a judgment of acquittal at the close of all evidence, arguing that “the State’s inability to impeach my client in conjunction with the impeachment of the victim makes it impossible for the State, for the fact finder and the law to find that my client is guilty beyond a reasonable doubt.” The court denied the second motion as well.

Appellant never raised the argument that appellant’s status did not fall within the statutory definition of “family member” or that the statute was unconstitutionally broad or vague. Appellant first raised the issue of “family member” at the time of jury instructions. The trial court instructed the jury as to sexual abuse of a minor as follows: “Child abuse and sexual molestation or exploitation of a child under 18 caused by a parent or other person who has permanent or temporary care, custody or responsibility for the supervision of the child or by any household or family member. In order to convict the defendant of child abuse, the State must prove that the defendant was a family member or standing in the care and custody position or supervisory capacity or household member at the time and had permanent or temporary custody, care or responsibility of the victim, and that at the time, the victim was under the age of 18, and that the defendant sexually molested or exploited the victim by some method or modality of sexual molestation or exploitation.

Household member means a person, who at the time of the alleged offense, lived with or was regularly present at the home or common residence of the victim.” The State requested the court clarify the jury instruction to make clear to the jury that the State was not required to prove appellant had “supervisory authority” over the minor ²¹³ child but could proceed under the State’s theory that appellant was a “family member” of the minor child. The following colloquy occurred: “[COURT]: Do you want me to re-read it? “[THE STATE]: Yes, sure. “[DEFENSE COUNSEL]: (Unintelligible). “[COURT]: I’ll re-read it. “[DEFENSE COUNSEL]: Your Honor, is a divorced uncle a family member? “[COURT]: Um-hum, yes, a family member, yes, sure. “[DEFENSE COUNSEL]: I’m going to object. “[THE STATE]: Not divorced at the time anyway— “[COURT]: (Unintelligible) “[DEFENSE COUNSEL]: I think it— “[COURT]: You know what, I’m not going to re-read it. You can argue it.” Although the court explicitly told defense counsel that he could argue to the jury that appellant did not fall within the statutory definition of “family member,” he did not do so. Robinson was convicted by the jury of sexual abuse of a minor. 2 The Circuit Court sentenced appellant to three years incarceration, with two years and nine months suspended, with two years supervised probation.

Appellant noted a timely appeal in the Court of Special Appeals and we granted certiorari on our own initiative before the intermediate appellate court decided the appeal. Robinson v. State, 402 Md. 36 , 935 A.2d 406 (2007). Appellant contends that § 3-602 is unconstitutionally vague because its definition of “family member” is so broad that it does not provide fair notice as to who is prohibited from the conduct proscribed by the statute or prevent arbitrary enforcement of the statute. See Galloway v. State, 365 Md. 599 , ²¹⁴ 615, 781 A.2d 851, 860 (2001).

Section 3-602 reads, in pertinent part, as follows: “(a)(1) In this section the following words have the meanings indicated. (2) ‘Family member’ has the meaning stated in § 3-601 of this subtitle. (3) ‘Household member’ has the meaning stated in § 3-601 of this subtitle. (4) (i) ‘Sexual abuse’ means an act that involves sexual molestation or exploitation of a minor, whether physical injuries are sustained or not.

(ii) ‘Sexual abuse’ includes: 1. incest; 2. rape; 3. sexual offense in any degree; 4. sodomy; and 5. unnatural or perverted sexual practices. (b)(1) Prohibited—A parent or other person who has permanent or temporary care or custody or responsibility for the supervision of a minor may not cause sexual abuse to the minor. (2) A household member or family member may not cause sexual abuse to a minor.” “Family member” is further defined in § 3-601, which provides, in pertinent part, as follows: “(a)(1) In this section the following words have the meanings indicated.... (3) ‘Family member’ means a relative of a minor by blood, adoption, or marriage.” The State argues that neither of the arguments raised by appellant in this appeal were raised below and therefore neither argument is preserved for review by this Court.

The State argues also that because appellant does not allege that the statute infringes upon a fundamental constitutional right, he may only challenge the statute as applied to the facts at hand, and should not be permitted to mount a facial challenge ²¹⁵ for vagueness. See Galloway, 365 Md. at 616-17 , 781 A.2d at 861 . As to the merits of appellant’s statutory construction argument, the State contends that appellant’s status as V.O.’s uncle by marriage puts him squarely within the definition of “family member” provided in § 3-601 (a)(3)—an uncle by marriage is a “relative of a minor by blood, adoption, or marriage.” Finally, the State argues that, on direct appeal, this Court should not consider appellant’s claim that he was denied effective assistance of counsel. Robinson contends that if a family member is defined as “a relative of a minor by blood, adoption, or marriage” it would have no limit in its application because, taken in extremis, all humans are related by either blood, adoption or marriage.

He further contends that a narrow reading limits the statutory definition to immediate, nuclear family members (mother, father, brother, sister) and those married to or adopted by those members. Such a narrow reading would exclude appellant. Finally, appellant points to other statutes, particularly § 2-202 of the Family Law Article, Md.Code (1984, 2006 Repl.Vol.), where the Legislature has used more particularity in defining “family member.” In conclusion, appellant notes that § 3-602 fails to provide fair notice to the targeted class because it lacks a specific enumeration of which persons fall under the definition of “family member.” The statute is unconstitutionally vague, appellant reasons, because a person would not be able to determine if he or she were within the limits of the statutory definition from the plain text of the statute. As to the State’s non-preservation argument, appellant maintains that the constitutional argument and statutory construction issue was raised and decided in the trial court when the trial court responded affirmatively to defense counsel’s query about whether a “divorced uncle” is