State v. Westpoint

MURPHY, Judge, dissenting. I agree with the majority and the Court of Special Appeals that “a prior conviction for a third degree sexual offense is not admissible for purposes of impeachment pursuant to Md. Rule 5-609.” I also agree with the majority that evidence regarding the 2001 incident was admissible under the “sexual propensity” exception to the general rule excluding “other bad acts” evidence. If the State had not been entitled to introduce evidence of the 2001 incident, I would agree that the respondent is entitled to a new trial. Because evidence of the 2001 incident was admissible, however, I would reinstate the judgment of conviction.

If the respondent had been testifying in a civil case (whether as plaintiff, defendant, or non-party witness), it would have been improper to ask him whether he had been convicted of a ⁴⁹⁶ third degree sexual offense. It would also have been improper to ask the respondent this question if he had been testifying in a criminal case as (1) a non-party witness, or (2) the criminal defendant charged with any offenses other than sexual offenses alleged to have been committed against the very same victim of the sexual offense for which he was convicted in 2002. In the case at bar, however, the State was entitled to prove that the respondent committed the 2001 offense. Under these unique circumstances, the State was entitled to introduce evidence of the respondent’s 2002 guilty plea-not merely for purposes of impeachment, but as circumstantial evidence that he committed the 2005 offenses.

The record shows that respondent’s trial counsel argued that there were two reasons why the circuit court should deny the State’s motion to introduce evidence of the 2001 offense, the first reason being “the fact that this motion [was] filed at the last moment prior to trial.” Respondent’s trial counsel then stated: I would strongly request that the Court deny it on the basis of the fact that any possible probative value that such conviction would have is highly outweighed by the extreme prejudice and unfair prejudice that it would bring upon the Defendant in this particular case. Obviously, once the jury hears that the Defendant has a prior conviction for a third degree sexual offense, the Defendant is charged with second degree rape in this particular case, third degree sexual offense and other related offenses, even though the Court may and likely would give limiting instructions, I don’t think that the jury would be able to dispel that—one, follow the Court’s instruction, and two, the fact that once they hear that, they will unfairly hold it against him. That there’s a propensity or an identity for illicit sexual relations with the victim in this case, they would convict him upon hearing that charge in and of itself. I don’t think that the Court can in this particular case find that the State’s alleged need or need for this evidence is outweighed by its prejudicial effect against the Defendant. ⁴⁹⁷ The circuit court, expressly relying on the case of Oesby v. State, 142 Md.App. 144 , 788 A.2d 662 (2002), ruled that evidence of the 2001 offense was admissible because the court found that this evidence (1) fell under the “intent exception” to the rule excluding “other crimes evidence,” (2) was “more than clear and convincing,” and (3) “would outweigh the unduly prejudicial effect[.]” Because this Court has affirmed that ruling, respondent’s present conviction should not be reversed on the ground that he was unfairly prejudiced by the cross-examination about his 2002 guilty plea.

I am persuaded that the respondent’s direct examination opened the door to the cross-examination about the disposition of the charges that resulted from the 2001 incident. The record shows that, during the respondent’s direct examination, he made a vague reference to “not going through this again,” which insinuated that the victim’s testimony about the 2001 incident was as false as her testimony about the 2005 incidents. If the State had been prohibited from questioning the respondent about this remark, the jurors may well have (1) accepted the respondent’s testimony that “[njothing happened in 2001,” and (2) applied the jalsus in uno, falsus in omnibus inference to the victim’s testimony about what occurred in 2005. It is well settled that, although a plea of guilty to a criminal charge does not conclusively establish liability in a civil action arising out of the incident that resulted in the criminal charge, such a plea constitutes an evidentiary admission that