Tate v. State

ON REMAND MOYLAN, J. On September 27, 2007, we filed an opinion affirming the conviction of the appellant, Darren Joseph Tate, for the sexual abuse of his 16-year-old stepdaughter. 176 Md.App. 365 , 933 A.2d 447 . On June 9, 2008, the Court of Appeals filed a per curiam order vacating our decision and remanding the case to us “for further consideration in light of Lawrence Price, Jr. v. ¹¹⁷ State of Maryland,” 405 Md. 10 , 949 A.2d 619 (2008). We have reconsidered and see no reason for changing our decision, which we hereby reinstate. In Price v. State, the Court of Appeals expressly changed the common law of Maryland, which had in numerous cases over the course of 55 years held that, in jury trials in criminal cases, an apparent logical inconsistency between an acquittal on one charge and a conviction on another will not be interfered with by the courts and will not mandate the reversal of the conviction.

Leet v. State, 203 Md. 285, 293 , 100 A.2d 789 (1953); Williams v. State, 204 Md. 55, 64 , 102 A.2d 714 (1954); Ford v. State, 274 Md. 546, 552-53 , 337 A.2d 81 (1975); Mack v. State, 300 Md. 583, 601 , 479 A.2d 1344 (1984); Shell v. State, 307 Md. 46, 54 , 512 A.2d 358 (1986); Wright v. State, 307 Md. 552, 576 , 515 A.2d 1157 (1986). And see Hudson v. State, 152 Md.App. 488, 515 , 832 A.2d 834 (2003); Price v. State, 172 Md.App. 363, 388-90 , 915 A.2d 432 (2007). Our traditional caselaw uniformly recognized that an inconsistent acquittal on one charge following a conviction on a closely related charge may simply have reflected either 1) a permitted compromise among the jurors or 2) an extension of lenity toward a defendant by declining to “pile on” with multiple convictions. That prevailing Maryland view, moreover, was solidly in line with the clear majority of American states and the federal courts.

See Eric L. Muller, The Hobgoblin of Our Little Minds? Our Foolish Law of Inconsistent Verdicts, 111 Harv. L.Rev. 771, 787 n. 80 (1998). The approach to the problem of apparent jury inconsistency followed the reasoning of such eminent authorities as Judge Learned Hand in Steckler v. United States, 7 F.2d 59, 60 (2d Cir.1925); Justice Holmes in Dunn v. United States, 284 U.S. 390, 392 , 52 S.Ct. 189 , 76 L.Ed. 356 (1932); and Chief Justice Rehnquist in United States v. Powell, 469 U.S. 57, 61-67 , 105 S.Ct. 471 , 83 L.Ed.2d 461 (1984).

All of that, however, has now been changed diametrically. I. Our Basic Holding That change, however, does not affect our basic decision in the present case. The appellant had contended that the jury’s ¹¹⁸ acquittal of him on the charge of having committed a fourth-degree sexual offense was logically inconsistent with its conviction of him for sexual child abuse. Our primary holding, however, was that the two verdicts were not necessarily inconsistent at all.

Our holding was clear. Our conclusion is that the two verdicts were not necessarily inconsistent at all. With the failure of the appellant’s central thesis, his indirect attack on the inadequacy of Judge McKee’s preventive measures self-evidently founders. There was nothing inconsistent and, therefore, nothing even arguably erroneous about the verdicts.

The appellant’s indirect attack on what Judge McKee did or did not do, therefore, reduces itself to the claim that Judge McKee failed to take all necessary measures to prevent non-error. That is simply not a cognizable appellate contention. 176 Md.App. at 380 , 933 A.2d 447 (emphasis supplied). Our subsequent discussion about the prevailing law as to inconsistent jury verdicts was simply a secondary and “totally independent reason” for affirming the conviction. That entire discussion, moreover, was predicated on an arguendo assumption.

Our ultimate decision would have been, and is, the same even had that back-up rationale been unavailing. The appellant cannot prevail on this first and primary contention about inconsistent verdicts for another and totally independent reason. Even if, purely arguendo, everything we have said to this point were wrong and the two verdicts were, indeed, as inconsistent as inconsistent can be, it would still make no difference to the outcome of this case. 176 Md.App. at 381 , 933 A.2d 447 (emphasis supplied). The Verdicts Were Not Inconsistent At the outset of our analysis, we recognized that the factual battle was far less about what had happened between the appellant and his stepdaughter than about the significance of what had happened.

Even if the two crimes being compared, one leading to a conviction and the other to an acquit ¹¹⁹ tal, had arisen out of precisely the same physical happening, they did not necessarily generate the same significance. The area of factual disagreement between the State and the defense is narrow. It is not nearly so much a disagreement over what happened as it is a disagreement over the significance of what happened. Id. at 374 , 933 A.2d 447 .

Key to our conclusion that the two verdicts might well have been completely compatible with each other was the testimony of the 16-year-old stepdaughter. We described that testimony: The victim, Koree Buffington, had just turned 16 years of age when the act of alleged child abuse took place. She was 17 years old at the time of trial. The appellant is her stepfather, with whom Koree had been living as part of the same household.

The household consisted of Koree, her mother, the appellant, Koree’s grandmother, Koree’s sister, a cousin, and a nephew. According to Koree herself, she and the appellant had always had a “close” relationship with each other. She described how they would regularly “hang out and just ride to school together” and how “they would joke and play-fight with one another. ” In her trial testimony, Koree described the abusive incident. On a day several days after Koree’s 16th birthday, the appellant knocked on Koree’s bedroom door and she told him to come in. “After he came in, I was like sitting on the floor and he then pulled me up and put my hands around him, and he started touching me.” She testified that the appellant placed her hands around his neck and then “he like took my hands down, and I hugged him like around where his waist was.” Koree’s critical testimony was that while the appellant was holding her, he put his hands inside her underwear. “He started rubbing outside my vagina.” After that, the appellant “just started hugging me, and told me he loved me, and left.” ...

Koree elaborated that while she had a “playful relationship” with the appellant, it was “not O.K. for him to ¹²⁰ kiss her.” She added that she did not believe that the appellant was trying to hurt her. 176 McL App. at 370-71, 933 A.2d 447 (emphasis supplied). As this case unfolded, the appellant’s insistent position was not that, in the course of roughhousing, he might not have inappropriately touched his stepdaughter but that he had not done so for any purpose of “sexual arousal or gratification.” A co-worker of the stepdaughter who confronted the appellant on her own initiative testified: According to Ms. Tribble, the appellant neither admitted nor denied the accusation. According to her testimony, “[H]e did share the possibility [that] if there’s anything he’s guilty of, its playing rough with his daughters or sometimes not knowing when enough is enough. ” Id. at 372 , 933 A.2d 447 (emphasis supplied). The testimony of the investigating detective was to the same effect.

As we summarized it: The third and final State’s witness was Detective Wayne Pyles, who reported the responses of the appellant when confronted with the accusation. In a written statement, the appellant averred that he had no recollection of ever having touched his stepdaughter’s breast or vagina. The appellant added a message to Koree in which he said: Because what you said happened, I’m so sorry. I love you.

Daren. When Detective Pyles then asked the appellant if he was “apologizing to Koree because you fondled her breasts and vagina?, ” the appellant declined to answer because, he told the detective, “the word fondled’ implied a sexual intent.” The appellant told Detective Pyles that “Koree was not lying, ” but that he steadfastly denied doing “anything of a sexual connotation. ” Id. (emphasis supplied). The appellant took the stand in his own defense.

His testimony did not disavow the possibility of an inappropriate ¹²¹ touching but strenuously disavowed any sexual intent or purpose behind such a touching. He added that Koree was very “tomboyish” and physical and that, in interacting, the two of them would wrestle, box, and “we would touch.” He did not deny touching Koree because, as he explained, “We play all the time, for me to say I have never touched her would be for me to just outright lie.” He further explained that he wrote the apology to Koree after speaking with Detective Pyles “because it deeply hurt me to think that she took anything, or our playing, in any kind of sexual way.” He concluded that the incident in question did not happen in the way that Koree reported it. The two of them were “just playing at the time. ” Id. at 373 , 933 A.2d 447 (emphasis supplied). Also called to the stand on the appellant’s behalf were his wife (the victim’s mother) and his 18-year-old daughter, both of whom testified that although the appellant and his stepdaughter “played a lot” and indulged in “a lot of roughhousing,” they had never observed “any behavior of a sexual nature between the two.” Our conclusion was that the appellant’s persistent and apparently credible strategy of confession and avoidance may well have driven a wedge, in the jurors’ minds, between the charge of sexual child abuse, which arguably requires no more than objective behavior that has an adverse sexual impact on the victim, and the charge of a fourth-degree sexual offense, which requires subjectively that the sexual conduct be committed with the specific intent of producing “sexual arousal or gratification.” It takes no stretch of the imagination to conclude that the jury may have found the appellant’s behavior to have been inappropriate but may also have believed the appellant that his actions were not motivated by “sexual arousal or gratification. ” All that would be required, of course, is that the jury (or some of the jurors) were not persuaded beyond a reasonable doubt that his actions were specifically intended “for sexual arousal or gratification. ” That, indeed, was the heart of the appellant’s defense, to wit, that he may have ¹²² touched Koree inappropriately but that he did not do so for sexual purposes.

The very success of the appellant’s defense may well be the obvious explanation for the appellant’s acquittal on the fourth-degree sexual offense charge, notwithstanding his conviction for sexual child abuse. The appellant worked hard for that allegedly inconsistent verdict and should be happy in his success. 176 Md.App. at 380 , 933 A.2d 447 (emphasis supplied). A Common Factual Event Both the sexual child abuse charge and the fourth-degree sexual offense charge, to be sure, proceeded from the proof of a common fact. That fact standing alone, however, does not ipso facto establish either crime.

We described the common fact. The gravamen of the State’s case against the appellant, both for the sexual abuse of a minor pursuant to Maryland Code, Criminal Law Article, § 3-602(b), and for the fourth-degree sexual offense pursuant to § 3 — 308(b)(1), is Koree’s testimony that the appellant put his hands in her underwear and “started rubbing outside my vagina.” That is the limited factual fulcrum upon which guilt or innocence for either of the criminal charges turns. It was that act of “rubbing outside [Koree’s] vagina” that was the sine qua non of the appellant’s sexual abuse of Koree. It was that act of “rubbing outside [Koree’s] vagina” that was the sine qua non of the appellant’s non-consensual sexual contact -with Koree that allegedly constituted a fourth-degree sexual offense.

Id. at 374, 933 A.2d 447 (emphasis supplied). The “rubbing outside the vagina” was a necessary fact, but it was not a sufficient fact. It would have been quite plausible for the jurors to have acquitted the appellant of a fourth-degree sexual offense even if they believed that that “rubbing outside the vagina” had occurred. The acquittal, therefore, did not necessarily represent a verdict that the touching never took place. ¹²³ The Appellant’s Argument And Our Rejection of It The appellant’s argument, however, reduced what was before the jury to the most simplistic of terms.

We characterized the argument: From that predicate of a common factual basis for the two crimes, the appellant constructs his thesis that 1) the jury’s conviction of him for sexual child abuse necessarily meant that the jury was persuaded beyond a reasonable doubt that the appellant did, indeed, “rub outside Koree’s vagina” but 2) the jury’s acquittal of him for the fourth-degree sexual offense necessarily meant that the jury was persuaded that he had not “rubbed outside Koree’s vagina.” As the appellant characterizes the verdicts, the jury was at one and the same time both convinced that “he did it” but not convinced that “he did it.” According to the appellant, the jury reached diametrically opposed and inconsistent verdicts that cannot be reconciled and Judge McKee was in error for failing to take sufficient steps to forestall such inconsistency. Id. (emphasis supplied). We rejected the appellant’s argument that the acquittal on the sexual offense charge had necessarily precluded the finding of an element that was indispensable to a conviction on the sexual child abuse charges.

We concluded that the acquittal for the fourth-degree sexual offense could have been for a variety of reasons other than that the jury believed that the appellant had never “rubbed outside Koree’s vagina.” We then undertook to explore what some of those other reasons might be. The appellant’s characterization of the verdicts, however, is much too simplistic. The flaw in the appellant’s logic is that one of the premises on which he relies is not necessarily true. The acquittal of the appellant for a fourth-degree sexual offense does not, even on the particular facts of this case, necessarily mean that the jury was not persuaded beyond a reasonable doubt that the appellant had “rubbed outside Koree’s vagina.” Even given the jury’s persuasion of that predicate fact, a fourth-degree sexual offense may ¹²⁴ require something more.

The acquittal on the fourth-degree sexual offense charge could well have come about for either of two different and arguably plausible reasons. One concerns the actus reus of a fourth-degree sexual offense. The other concerns its mens rea. Id. at 375 , 933 A.2d 447 (emphasis added).

Sexual Child Abuse Is a Broader Crime Than a Fourth-Degree Sexual Offense Our analysis began with the general proposition that 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. Maryland Code, Criminal Law Article, § 3-602(a)(4) defines sexual child abuse as follows: (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. (Emphasis supplied).

Although “sexual abuse” includes those five statutorily listed examples, it most definitely is not limited to those examples. Judge Cathell was very empathic on that point in Degren v. State, 352 Md. 400, 428 , 722 A.2d 887 (1999): Section 35C(a)(6)(ii) [the substantively unchanged predecessor to what is now § 3-602(a)(4) of the Criminal Law Article] enumerates actions describing types of sexual abuse, but the general phrase, “Sexual abuse includes, but is not limited to” precedes the enumerated list and states specifically that the list is not exhaustive. Furthermore, ¹²⁵ given general legislative policy and the purpose of the child abuse statute to protect minors from abuse, we find it difficult to believe the General Assembly chose to limit the forms of sexual abuse punishable to only those listed in section 35C(a)(6)(H). (Emphasis supplied).

To be sure, the earlier version of the child abuse law, Art. 27, § 35C(a)(6)(ii), expressly stated that sexual abuse “includes, but is not limited to” the examples then listed, whereas the new codification, Criminal Law Article, § 3-602(a)(4), merely precedes the list of examples with the word “includes.” The Special Revisor’s Note to the 2002 recodification, however, explains that although there have been minor changes in wording, there has been no change in substance in the course of moving the offense from Article 27 to the Criminal Law Article. “Includes” still means “includes but is not limited to.” In Nightingale v. State, 312 Md. 699, 708 , 542 A.2d 373 (1988), the Court of Appeals had also recognized that the crime of sexual child abuse is broader than the collective definitions of the statute’s list of representative examples of sexual child abuse. The problem, then, is that we cannot tell whether these general verdicts of guilty were based on the use of sexual offenses as lesser included offenses (or elements) of child abuse, or whether the child, abuse verdicts were based on other reasons (e.g., some sort of sexual molestation which the juries thought did not rise to the level of a sexual offense in any degree.) (Emphasis supplied). After looking at the two crimes in the present case side by side, we concluded: There may be the commission of sexual child abuse even if none of the five related offenses statutorily listed as examples of sexual child abuse has been committed. The non-commission of so much as a single one of the latter ¹²⁶ does not necessarily imply the non-commission of the former. 176 Md.App. at 377 , 933 A.2d 447 (emphasis supplied).

A More Tightly Defined Actus Reus We first compared the actus reus of sexual child abuse and the actus reus of a fourth-degree sexual offense, even in the limited context of allegedly illegal behavior consisting of an intentional touching by the defendant of a part of the victim’s body. We asked whether the one actus reus is necessarily coterminus with the other, and concluded that all that is required for a touching to constitute sexual abuse is that it could be deemed to involve “sexual molestation or exploitation of a minor.” That is open-ended language that could embrace a wide variety of physical contact. We then contrasted that open-ended language with the more tightly confined definition of a fourth-degree sexual offense. The touching that may constitute a fourth-degree sexual offense, by contrast, is more tightly defined.

It is spelled out by § 3-308(a): (a) Prohibited. — A person may not engage in: (1) sexual contact with another without the consent of the other. Section 3-301 (f), in turn, gives us a definition of what “sexual contact” consists of: (f) Sexual contact. — (1) “Sexual contact”, as used in §§ 3-307 and 3-308 of this subtitle, means an intentional touching of the victim’s or actor’s genital, anal, or other intimate area for sexual arousal or gratification, or for the abuse of either party. (2) “Sexual contact” includes an act: (i) In which a part of an individual’s body, except the penis, mouth or tongue, penetrates, however slightly, into another individual’s genital opening or anus; and (ii) That can reasonably be construed to be for sexual arousal or gratification, or for the abuse of either party. (3) “Sexual contact” does not include: ¹²⁷ (i) A common expression of familial or friendly affection. 176 Md.App. at 377-78 , 933 A.2d 447 (emphasis supplied).

We then looked closely at the testimony in this case against the backdrop of Judge Wilner’s observation in Cooksey v. State, 359 Md. 1 , 24 n. 1, 752 A.2d 606 (2000): Clearly there was no suggestion in this case that any part of the appellant’s body ever penetrated, however slightly, into Koree’s genital opening and subsection (2) can, therefore, be factored out of any further consideration. The single, fleeting testimonial reference to “rubbing outside my vagina” does -not tell us with anatomical exactitude precisely what that entailed. In terms of the actus reus, it is possible, indeed probable, that the appellant’s intentional “rubbing outside Koree’s vagina” constituted an intentional touching of Koree’s genital area, but that is not absolutely free of all uncertainty. We are mindful of the caution displayed by Judge Wilmr in Cooksey v. State, as he questioned whether “touching a person’s buttocks” or “rubbing against the victim” amounted to sexual contact even though those actions might clearly represent “sexual molestation or exploitation” so as to constitute sexual child abuse.

Section 461(f) of Article 27 (from which § 3 — 301(f) derives without substantive change] includes within the definition of “sexual contact” the intentional touching of the victim’s