Scriber v. State

Panel: Graeff, Nazarian, Fader, JJ. Graeff, J. ³³⁵ Following a bench trial, Todd Michael Scriber, appellant, was convicted of two counts of sexual abuse of a minor in violation of Md. Code (2012 Repl. Vol) § 3-602(b)(1) of the Criminal Law Article ("CR"). The circuit court imposed concurrent sentences of 25 years' imprisonment, all but 18 months suspended, followed by five years of supervised probation.

On appeal, appellant presents one question for this Court's review, which we have rephrased slightly, as follows: Was the evidence sufficient to support appellant's convictions of sexual abuse of a minor? For the reasons set forth below, we shall affirm the judgments of the circuit court. FACTUAL AND PROCEDURAL BACKGROUND On October 2, 2015, appellant, a science teacher at a Montgomery County high school, administered a makeup exam to N.S., one of his students. 1 As part of the ⁹⁴⁸ accommodations for ³³⁶ her learning disability, N.S. took a written examination and then had the questions administered orally. After completing the written examination, N.S. went to the front of the classroom, where appellant was seated in a roller chair, to go over the exam orally.

N.S. was wearing a skirt, and she stood approximately 18 inches from appellant. Initially, appellant was facing his computer and using his iPhone as he conducted the examination orally. Toward the end of the exam, however, appellant turned to face N.S. and "leaned forward like on his knees," with his phone in his hand. The phone was facing downward with the screen toward the floor and the camera facing upward.

N.S. testified that, after leaning forward, appellant put the phone "almost underneath [N.S.'] skirt" and "started clicking the volume button[,] which takes pictures" when the phone is positioned in the manner described. N.S. believed appellant was taking pictures by "clicking the volume button" because she had taken pictures in that same manner herself. 2 At that point, N.S. stepped back and crossed her legs while she finished the oral review of the examination. After completing the examination, N.S. left appellant's classroom and met two of her friends, who were waiting outside of the classroom. N.S. told these two friends about the pictures appellant was taking during the examination.

N.S. also told her father and mother. N.S.' parents called the school and scheduled a meeting with the principal for the following Monday. 3 N.S. also filed a complaint with Child Protective Services ("CPS") for Montgomery County, which was forwarded to the Montgomery County Police Department. ³³⁷ On October 5, 2015, Michelle Sears, a CPS worker, and Detective Wendy Giovacchini, a detective with the sexual assault unit of the Montgomery County Police Department, interviewed N.S. The next day, Detective Giovacchini, along with Corporal Julia Gilroy, went to the high school to speak with appellant. Detective Giovacchini advised appellant that N.S. thought appellant had taken pictures on his phone while she was taking the examination. Detective Giovacchini asked to look at appellant's phone.

Appellant stated that the phone was in his vehicle. After going to the vehicle and opening his trunk, however, appellant said that his phone actually was at school. Detective Giovacchini, Corporal Gilroy, and appellant returned to appellant's classroom, where appellant retrieved his phone from the top of his desk and began "looking through items on his phone." Detective Giovacchini asked to see to the phone, which was "opened to the photos." As Detective Giovacchini looked, she noticed that there were pictures of adolescent females in the classroom. Specifically, she observed "pictures of butts [in] what appeared to be the classroom setting." Detective Giovacchini did not see a picture of N.S. or the clothes she described wearing on the date of the incident.

When appellant saw the pictures that Detective Giovacchini found, "he grabbed ... for the phone." Detective Giovacchini told appellant that she was keeping the phone. The police subsequently obtained a search warrant for appellant's phone. On ⁹⁴⁹ October 14, 2015, Detective Robert Onorio, an investigator in the child exploitation unit and electronic crimes unit of the Montgomery County Police Department, examined the phone. He placed the phone in a Faraday Box to cut off network connection. 4 Detective Onorio then extracted the data stored on the phone and loaded it into ³³⁸ physical analyzer software to review the artifacts extracted from the phone.

He found photos, as well as "a number of thumbnail images of what appeared to be females in a classroom setting where the focus of the images were the, the buttocks of the young females." He explained that, when a phone captures a picture, the image is saved in a file path, but a thumbnail of that image is "not automatically created." A thumbnail is not created until the user "touch[es] the photograph [in the camera roll] and [makes] it [ ]appear [ ] full screen. That's when the thumbnail would be captured. Otherwise, you would have a thumbnail for every single photograph." In other words, to capture a thumbnail, user manipulation of the image is required. "[I]f a user has manually deleted the photographs ... but not actually looked at the photograph, it would not have created the thumbnail image.

It would just simply not be there." A thumbnail is not visible on a phone like a photograph would be visible. If a picture is taken and a thumbnail ultimately created, however, the thumbnail will remain on the phone even after the picture is deleted (though not visible to a user). Although it is possible to delete a thumbnail from a phone, Detective Onorio testified that to do so, it would generally require a factory reset or a special program, but that "[i]t's just not something that [the phone] is designed to readily do." Appellant was indicted on four counts of sexual abuse of a minor. Count I of the indictment pertained to the conduct relating to N.S. Count II involved images from appellant's phone, shown in State's Exhibit No. 14, which the parties stipulated were of the minor-victim, R.K., who was appellant's student during the fall of 2015.

State's Exhibit No. 14 depicted images of R.K. standing in a classroom with her arms outstretched and cleavage exposed. State's Exhibit No. 12 depicted 24 thumbnails of R.K. Count III involved images from appellant's phone, shown in State's Exhibit Nos. 8 and 15, which the parties stipulated ³³⁹ were of the minor-victim, M.S., who was appellant's student during the fall of 2015. These exhibits depicted images of M.S.' buttocks, taken in the classroom setting as M.S. was bending over. Count IV involved images from appellant's phone, shown in the State's Exhibit No. 13, which the parties stipulated were of the minor-victim, G.E., who was appellant's student during the fall of 2015.

State's Exhibit No. 13 depicted images, taken from behind, of G.E. standing in a classroom. Multiple images of M.S., R.K., and G.E. were admitted into evidence. Additionally, the court admitted photos of unknown females, which the court found relevant to appellant's intent. The court described one photo as one where the "whole photo" was depicting "a girl's buttocks." It stated that there was "no legitimate student activity going on," but rather, it was "just a girl bending over." ⁹⁵⁰ After all the evidence was presented, the court issued its ruling.

The court made the following findings of fact: So, I find from the evidence that [N.S.] was present in the [appellant's] classroom on October the 2nd, last year, to take a makeup test. She approached, at some point, the [appellant's] desk so she could review her answers with him as he sat in a swivel chair. She was dressed at the time in a knee-length skirt, and she stood as the [appellant] sat at his desk. Towards the end of this oral review of her answers, I find that [appellant] turned to face [N.S.] and moved his chair forward towards her with his elbows resting on what would be his thighs, as demonstrated by [N.S.] when she showed us, and a cellphone in his left hand.

I find that she had observed him doing something on the phone in the moments before. And, at that time, he was looking down at the phone. As [appellant] leaned forward, and this is something that I don't think was, I heard a lot about after it was said, but she testified, and I find as a fact, that the phone was facing down. In other words, the screen would not be visible to the ³⁴⁰ [appellant] who was facing the floor.

At that time, I find that she saw him hit the volume button, and she heard clicking. At this point, the phone was almost underneath her skirt, and she saw movement in the phone as his fingers worked the volume button. She believed, and I agree with her, that she had been photographed by the [appellant]. And, so she crossed her legs and leaned back up against a nearby desk ostensibly in an effort to avoid being photographed anymore.

Soon after that, she concluded her business. She left. She informed her friends and her father of what had occurred. * * * The parties have agreed that at least 30 images were taken of the alleged victims in Counts 2, 3, and 4. No images of [N.S.] were recovered.

It's unclear as to when the photos in 2, 3, and 4 were taken other than the stipulation that it was during that first I guess you call semester of the year for his particular class. The circuit court then noted that, although "[t]he case law does tell us that this particular offense is not a specific intent crime," "there's got to be some reason here for these photos to have been taken in order for [the court] to consider whether the [appellant] is guilty of child sexual abuse." In that respect, the circuit court stated that "intent can be shown by surrounding circumstances." The court then stated: I have three sets of pictures, as well as the testimony of [N.S.] from which I'm asked to find child sexual abuse here. But, what I really find key to my analysis is the testimony of [N.S.]. I find her testimony to be absolutely credible.

I do not have a reasonable doubt that the [appellant] snapped a photo or photos of her while she was standing over him wearing a skirt. If the [appellant] was doing other things on his cellphone before he finished with [N.S.], he was doing only one thing at the end. He scooted towards her in his chair. She saw ³⁴¹ him manipulate his fingers.

She heard the click. And the phone was almost underneath her skirt. What happened to that photo, I don't know. I don't want to say I don't care because it would be certainly relevant to prove or disprove what had happened.

But, you know, the wonders of modern technology being what they are, I don't find it the least bit unusual that either the camera did not take the photo for ⁹⁵¹ whatever reason, I don't know what happens when a flash doesn't go off, if a flash is, indeed, required in order to take a photo in that atmosphere. The camera may have malfunctioned. The image may have been erased. But, I have no doubt that a photo was taken. * * * ...

I can only say that I don't really see any value reason where a high school teacher would be using his cellphone, face down, camera up, while dealing with a student in a dress standing over him. No satisfactory explanation has been given to me. I can think of none. And it's my job to try to find a reasonable doubt here....

I can think of no reason why, given [N.S.'] testimony, which I found absolutely credible, the [appellant] would have been doing anything other than trying to take her picture. So, I find the [appellant] guilty of Count 1. With respect to Count II, the court considered State's Exhibit Nos. 12 and 14, "an extraction report with thumbnails and the images of several young ladies, five in number, five being the number of images. There [were], depending upon the photo, three to four young ladies." The court noted that the subject of the photos, R.K., was "standing in what look[ed] like ... the front of the classroom," and "what [was] most notable about her ... [was] that she [was] displaying cleavage." It was from that display that the court was "asked to find sexual exploitation in the taking of this photo." The court found appellant not guilty on Count II.

With respect to the images of R.K., the court stated: It's possible that the reason this photo was taken was to memorialize this young lady displaying cleavage. But, it is ³⁴² equally possible, in my view, that this was a depiction of classroom activity. And, again, I'm somewhat in the dark here as to what is permissible and what teachers do nowadays. * * * [A]bsent any other testimony, not knowing whether it post-dated or pre-dated [N.S.'] incident, I have reasonable doubt as to what the reason for this photo was. There's no young women whose bottoms are prominently displayed, as we'll get to in a second.

And, I have a sneaking suspicion that I know why this photo was taken. But, that's not the standard here. The standard is reasonable doubt. And, I have a reasonable doubt as to why this picture was taken.

I find the [appellant] not guilty of Count 2. With respect to Count III, the circuit court stated that it had "no doubt as to why that photo was taken." It continued: I find no reason or no explanation as to why any teacher during a class day would take nearly 30 images of a young girl bending over, taking the picture from the back to the virtual exclusion of every other part of her body. This was no mistake. This was not an accident, especially when I view State's [Exhibit] No. 20, which were the three photos that I allowed in from them, let's say the non-victims from want of a better term.

And, these photos, which appear to be the same young lady who's wearing an extremely short, extremely short shorts, there's three of these images. And you know, that's all there is in this photo is the young woman's legs and buttocks. That's all. So, looking at that and looking at these photos, there's no doubt in my mind that these pictures were taken to memorialize this young women's backside.

I find the [appellant] guilty of Count III. ⁹⁵² The court then found appellant not guilty on Count IV, which involved pictures showing "the back of the victim," G.E. The court stated that the photo was not as "descriptive" as the other photos and "purportedly could be taken to show interaction among students." The court questioned why appellant ³⁴³ took "so many photographs of the same young woman," stating: "Maybe it was the anticipation that she was going to bend over. I don't know." But the court said that it could not find "beyond a reasonable doubt that there was no legitimate reason" for the pictures. As indicated, the court sentenced appellant to 25 years' imprisonment on Counts I and III, to be served concurrently, with all but 18 months suspended on each sentence. This appeal followed.

DISCUSSION Appellant's sole contention on appeal is that the evidence was insufficient to support his convictions of two counts of sexual abuse of a minor. CR § 3-602(b)(1) provides, in pertinent part: "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." Sexual abuse is defined as "an act that involves sexual molestation or exploitation of a minor, whether physical injuries are sustained or not." Id. at (a)(4)(i). Sexual abuse includes "incest, rape, sexual offense in any degree, sodomy, and unnatural or perverted sexual practices." Id. at (a)(4)(ii). This Court has summarized the elements of the offense of sexual abuse of a minor as follows: [T]he 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.

Schmitt v. State , 210 Md. App. 488 , 496, 63 A.3d 638 , cert. denied , 432 Md. 470 , 69 A.3d 476 (2013). There is no dispute that the first two elements were satisfied here; the only element at issue in this appeal is the third one, the element of sexual exploitation. ³⁴⁴ In reviewing the circuit court's finding that there was sufficient evidence to convict appellant of two counts of sexual abuse of a minor, we apply well-settled principles of law: The standard for appellate review of evidentiary sufficiency is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. That standard applies to all criminal cases, regardless of whether the conviction rests upon direct evidence, a mixture of direct and circumstantial, or circumstantial evidence alone. Where it is reasonable for a trier of fact to make an inference, we must let them do so, as the question is not whether the [trier of fact] could have made other inferences from the evidence or even refused to draw any inference, but whether the inference [it] did make was supported by the evidence.

This is because weighing the credibility of witnesses and resolving conflicts in the evidence are matters entrusted to the sound discretion of the trier of fact. Thus, the limited question before an appellate court is not whether the evidence should have or probably would have persuaded the majority of fact finders but only whether it possibly could have persuaded any rational fact finder. Darling v. State , 232 Md. App. 430 , 465, 158 A.3d 1065 , cert. denied , ⁹⁵³ 454 Md. 655 , 165 A.3d 462 (2017) (quotation marks and citations omitted). Where, as here, a case is tried before the court rather than a jury, the judgment of the [c]ircuit [c]ourt will not be set aside on the evidence unless clearly erroneous and due regard will be given to the opportunity of the lower court to judge the credibility of the witnesses.... [T]he findings of fact of the trial judge must be accepted unless