Schmitt v. State

RAKER, J. Edward Charles Schmitt, appellant, 1 was convicted in the Circuit Court for Howard County of sexual abuse of a minor ⁴⁹⁰ and visual surveillance with prurient interest. In this appeal, he raises a single issue for our review: Whether the evidence was sufficient to convict appellant of sexual abuse of a minor. We shall hold that the evidence was sufficient and affirm. I. Appellant was indicted by the Grand Jury for Howard County on the following counts: (1) sexual abuse of a minor, (2) visual surveillance with prurient interest of an individual in a private place, (3) visual surveillance with prurient interest of an individual in the private area of a public or private place, and (4) camera surveillance inside a private residence.

He pleaded not guilty and elected to proceed before the court on an agreed statement of facts, which the State recited as follows: “Bethany [G. 2 ] today would testify that in October 2007 her boyfriend, Edward Charles Schmitt, moved in with her family into their home ... in Laurel, Howard County, Maryland. Also living in that home were two minor children, Garret and Brooke ... [G]. She would identify Edward Charles Schmitt as the defendant seated at the trial table today next to his counsel to the left in a black coat with a black and grey tie. The Defendant is called by his nickname Ted by Bethany [G.] and her children.

On February 4, 2010 Bethany [G.] observed a PNY two gigabyte micro SD memory card behind a picture on the headboard bookshelf of the bedroom that she and the Defendant Schmitt shared together. This memory card was recovered from the shelf on the Defendant’s side of the bed where he stores his belongings. Your Honor, this would be State’s Exhibit No. 2. ⁴⁹¹ Next to the memory card Ms. Bethany [G.] also found a small black camera that was made of plastic, rectangular box shaped approximately two and a half inches long and a half an inch thick. Ms. [G.] would testify that the camera was the size of a pack of chewing gum and had black electrical tape wrapped around it covering the lights in the camera.

The memory card fit into this small camera and was used by the Defendant to store video images taken by this small camera. This picture will be State’s Exhibit No. 3. The memory card fits into an adapter which then plugs into a computer allowing the images stored on the memory card to be viewed on the computer. Ms. [G.] had checked this memory card several times in the past year and never noticed any material on the memory card.

The last time she remembers checking this card was around the time she, the Defendant, and Brooke [G.] spent a family vacation in Myrtle Beach, South Carolina in August of 2009. Ms. [G] then connected the memory card to a laptop computer to observe its contents. Upon opening the memory card she saw that it had three files on it. Ms. [G.] advised that one file could not be opened.

The second file was a video that was eighteen seconds long and only shows a camera turning on and off with a view of a bedroom and Mr. Schmitt. The third video was thirty-two minutes and thirty-six seconds long and was of her daughter, Brooke’s bedroom looking out from her closet into the bedroom. Brooke [G.]’s date of birth is April 13, 1994, which made her fifteen years old when this video was discovered by her mother, Bethany. Ms. Bethany [G.] opened up this video and observed its contents. [She] identified the male in the video as Mr. Edward Schmitt and the female individual as her fifteen year old daughter Brooke....

The video depicts Defendant Schmitt manipulating the camera’s position on a shelf in Brooke’s bedroom closet. Defendant Schmitt is then captured in the video walking to the center of Brooke’s bed ⁴⁹² room. Defendant Schmitt is wearing dark colored athletic shorts with light colored white or silver trim. The Defendant Schmitt is then shown taking out his penis out of his shorts and masturbating.

The video next depicts Defendant Schmitt bending down and picking up an article of clothing from the bedroom floor while continuing to masturbate. Defendant Schmitt then leaves the camera’s view. After some time the video shows Brooke [G.] entering her bedroom wearing pajama bottoms and a sweatshirt and having a towel wrapped around her head. The video then shows Brooke fixing her hair and changing her clothes.

At one point, a portion of Brooke’s underwear clad buttocks were exposed. Miss Brooke [G.] would testify that this vantage point of the video is from her closet looking out into her bedroom. She would testify that she did not place the camera there, and that she did not give permission to Defendant, to the Defendant Schmitt to place the camera there. Brooke would also testify that she had a — that she had a morning routine which began when her alarm would go off at 5:20 a.m. but that it would take her approximately fifteen to twenty minutes to get out of bed.

Around [5:45 a.m.] she goes into the bathroom brushes her teeth and showers. If it is cold she puts her pajamas back on in her bathroom, but if it is summer she just wears a towel. She then walks back to her room, brushes her hair, puts on her makeup, dries her hair, straightens her hair and gets dressed into her school clothing. The video from this memory card w[as] transferred by Detective Dave Prulow (phonetic) to a disk for the purposes of providing this Court a copy of the pertinent videos for viewing on a computer today, or here.

This is State’s Exhibit No. 4. After viewing the video Ms. Bethany [G.] would testify that when she destroyed the — that she destroyed the camera and threw it away but kept possession of the memory ⁴⁹³ card. Ms. [G.] then confronted Defendant Schmitt about the camera. Defendant Schmitt apologized and admitted he had a problem and told her that he would get help.

After viewing the video Ms. Bethany [G.] kept the memory card secure at her office, inside a drawer of the Laurel City Police Department Dispatch Center where she works as a dispatcher. Bethany [G.] confided in a friend at work about the memory card that she found and the video contained thereon. Bethany [G.] was ultimately confronted by her supervisors at work on May 21, 2010. At which point she turned over the memory card to the Laurel City Police.

Laurel City Police officers then contacted the Howard County Police Department. That same evening Detective Denise Francis of the Howard County Police Department met with Bethany [G.] for an interview and to take possession of the memory card and adapter used to view the card on a computer. At that point Detective Francis took custody of those items and turned them in to the Howard County Police Department property room under case 10-49494. On May 25, 2010, Detective Francis obtained and executed a search and seizure warrant for the PNY two gigabyte Micro SD memory card with the aforementioned contents.

Ms. Brooke [G.j would also identify herself as the girl depicted on the video getting ready and changing her clothes. She would testify that based on the clothing she was wearing she would have guessed it to be in the wintertime or when the weather was cold. Brooke [G.] would also testify that she had no knowledge that the — she was being video recorded as she was getting ready that morning. And those would be the facts in it.” Appellant did not offer any additions, corrections, or modifications, but argued that the facts failed to establish necessary elements of the crimes with which he was charged, ie., that the evidence against him was insufficient.

The circuit court granted appellant’s motion with respect to counts (2) and (4), but denied his motion with respect to count (3) and found him ⁴⁹⁴ guilty of visual surveillance with prurient interest of an individual in the private area of a public or private place. 3 On count (1), sexual abuse of a minor, appellant argued that his actions did not constitute “sexual molestation or exploitation” of Brooke G., as those terms have been explicated in the statute and case law. The circuit court disagreed, however, found that appellant’s conduct amounted to exploitation, and found appellant guilty of count (1). The State informed the circuit court that appellant had three, unrelated, federal criminal, charges pending against him as of that date, and the court postponed disposition until the outcome of those proceedings. At the sentencing hearing sixteen weeks later, Brooke’s victim impact statement was offered to the court.

In that statement, she informed the trial court that “[t]he past 14 months have been very painful and traumatizing for me.” She described the resulting physical and psychological effects of appellant’s conduct: depression, nightmares, migraines, mistrust of men, and a more confrontational attitude with people. The State thereafter advised the circuit court that appellant had entered into a guilty plea with the federal government in exchange for a term of incarceration of eighty-four months. The circuit court sentenced appellant to a term of incarceration of four years on the charge of sexual abuse of a minor and to a term of one year on the charge of visual surveillance, both to be served consecutively to each other and to any federal sentences imposed. This timely appeal followed.

II

Before this Court, appellant argues that the evidence was insufficient to sustain his conviction because his conduct did not amount to sexual exploitation of Brooke, as that term has been explicated in the Maryland case law. Specifically, he contends that to prove sexual exploitation the State must show that his actions involved “taking advantage of another person” and had “an adverse sexual impact on the victim.” In this ⁴⁹⁵ case, appellant asserts that the State did not offer any evidence in its statement of facts that Brooke had any knowledge at the time that he filmed her in a state of undress and himself masturbating in her room, or that his conduct had an adverse sexual impact on Brooke. 4 Any psychological harm that Brooke suffered eventually, appellant asserts, was caused not by his actions but “by her subsequent discovery of his actions,” something that distinguishes this case from the previously reported sexual abuse cases. The State disputes that it was required to show either that Brooke knew of appellant’s conduct at the time it occurred or that appellant’s conduct had an adverse sexual impact on her. The gravamen of a charge of sexual abuse — ie., sexual exploitation — according to the State, is whether a defendant’s objective conduct constitutes a taking advantage of a minor for the defendant’s selfish, sexual purposes.

Neither the statute nor the case law, the State maintains, requires more. Furthermore, at oral argument, the State argued that sexual abuse of a child differs from visual surveillance with prurient interest of an individual in a private place, in that appellant was a member of the minor victim’s household and that the General Assembly created that offense to protect minors in that particularly vulnerable situation.

III

We review the circuit court’s judgment in an appeal challenging the sufficiency of the evidence in the following manner: “We examine the record solely to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. In so doing, it is not our role to retry the case. Rather, because the fact-finder possesses the unique opportunity to view the evidence ..., we do not re-weigh the credibility of witnesses or ⁴⁹⁶ attempt to resolve any conflicts in the evidence. We defer to any possible reasonable inferences the [finder of fact] could have drawn from the admitted evidence and need not decide whether the [finder of fact] could have drawn other inferences from the evidence, refused to draw inferences, or whether we would have drawn different inferences from the evidence.” State v. Mayers, 417 Md. 449, 466 , 10 A.3d 782, 791-92 (2010) (internal quotation marks, citations, and alterations in original omitted).

Where the trial court is the trier of fact, as is the case here, we review findings of fact deferentially for clear error, but we review legal interpretations under the non-deferential de novo standard. See Walker v. State, 206 Md. App. 13 , 47 A.3d 590 (2012); see also Md. Rule 8-131(c). Maryland criminal law prohibits sexual abuse of a minor by an individual in a position of trust or authority over that minor. A parent, a person who has permanent or temporary care or custody or responsibility for the supervision of a minor, a household member, 5 or a family member “may not cause sexual abuse to the minor.” Md.Code (2002, RepLVol. 2012), § 3-602(b) of the Criminal Law Article. 6 Thus, the three elements that the State must prove are: (1) that the defendant is a parent, family or household member, or had care, custody, or responsibility for the victim’s supervision; (2) that the victim was a minor at the time; and (3) that the defendant sexually molested or exploited the victim by means of a specific act.

The statute defines sexual abuse as “an act that involves sexual molestation or exploitation of a minor, whether physical injuries are sustained or not,” and cites as examples the following: incest, rape, sexual offense in any degree, ⁴⁹⁷ sodomy, and unnatural or perverted sexual practices. § 3-602(a)(4)(i) — (ii). This list is not exhaustive. To constitute sexual abuse, the conduct underlying the charge need not be among the exemplars listed in § 3 — 602(a)(4)(ii), or even be criminal in nature. See Tribbitt v. State, 403 Md. 638, 650-52 , 943 A.2d 1260, 1266-67 (2008).

As we said in Tate v. State, 182 Md.App. 114, 124 , 957 A.2d 640, 645 (2008), “sexual child abuse is broader than, inter alia, even a closely related sexual offense and that, even granting a substantial overlap in the respective coverages, it may be established even though the related sexual offense has not been completely established.” Because “the Legislature intended for the [sexual abuse] statute to cover a wide range of conduct,” Crispino v. State, 417 Md. 31, 43 , 7 A.3d 1092, 1098 (2010), it is useful to survey briefly the case law to understand the variety of wrongful acts that are covered by this provision. Initially, we note that the term “exploitation” is not defined in the statute and that we therefore presume it retains its ordinary, popular meaning. See Williams v.