Tribbitt v. State

I. HARRELL, Judge. Maryland Code (2002, 2007 Cum.Supp.), Criminal Law Article § 3-602 states that “ ‘[sjexual abuse’ means an act that involves sexual molestation or exploitation of a minor.... ” Christopher Larry Tribbitt, Petitioner, convicted of violating this statute, argues essentially that § 3-602 should be given a much more restrictive meaning, with the result that his conduct in this case was not criminal. We do not agree.

II

During the 2003 through 2006 school years, Kylie, the victim, 1 was a student in a physical education class taught by Tribbitt at a Queen Anne’s County public middle school. Over this time, Tribbitt and the victim grew “close.” According to Kylie’s testimony at trial, Tribbitt requested, in the Spring of 2005, that she show him her thong underwear by pulling up her shirt and pulling down her pants. She ⁶⁴² complied. 2 In August 2005, at the beginning of her ninth grade year, Kylie joined the school volleyball team. Tribbitt was its coach.

Over the course of the volleyball season, Tribbitt touched Kylie inappropriately on four or five occasions in the school’s locker room. Kylie testified that he requested that she hug him and rub her thighs up against him. During this hug, she noticed Tribbitt’s tumescence. Kylie also claimed that Tribbitt grabbed her “butt” as they walked through the locker room.

On one occasion, when Tribbitt’s shoe was untied, he said to Kylie, “can you bend down there and tie it and while you’re down there,” and, winking at her, “pretty much tugged on his penis....” 3 They then walked together into the equipment room. Kylie testified that, while in the equipment room, Tribbitt “rubbed [her] butt and inner thighs.” Next, they walked into the girls’ locker room where Tribbitt rubbed Kylie’s vaginal area through her pants. In an encounter later during the volleyball season, Tribbitt grabbed Kylie and played with her thong. She described yet another incident where Tribbitt grabbed her and, with his hand, started “really going down [her] pants and he got like half way down there ...,” stopping just above her vagina.

Following a bench trial on 17 November 2006 in the Circuit Court for Queen Anne’s County, the trial judge made the following relevant findings of fact: [T]here are several things that, probably a lot more than these, that are not in dispute. There was no oral sex; there was no sexual intercourse; there was no digital penetration. In my mind, there was no child pornography. There clearly was somebody who was responsible and that was you, Mr. Tribbitt, in your role, not only as Kylie’s teacher, coach, and ⁶⁴³ what you did was obviously, completely inappropriate, and we’ll get to whether it was criminal momentarily.

With respect to the statute, 3-602, sexual abuse of a minor, ... there’s no dispute that the supervisor here was Mr. Tribbitt. The issue is whether or not, in this case, that sexual abuse is exploitation of a minor and would include sexual offense in any degree. What is clear to me is that over this period of time, there were inappropriate acts that are criminal in nature, that involve sexual offenses which is improper touching. Clear to me, four or five occasions when in middle school, four or five occasions in high school, that there was contact, purposeful contact, where you felt Kylie’s butt, not her hip; her vaginal area, rubbed against her.

There’s no question in my mind that all that occurred. So with respect to Count 1, I have absolutely no doubt that that involves sexual exploitation of Kylie by you, that that was for your own sexual gratification. So as to Count 1, child abuse of a minor, the verdict is guilty. Tribbitt was sentenced to 25 years in prison, with all but 18 months suspended, and five years of supervised probation.

The Court of Special Appeals, in Tribbitt’s direct appeal, affirmed in an unreported opinion. We granted Tribbitt’s petition for certiorari to consider a single question: “[m]ay sexual contact that does not constitute a sexual offense in any degree or otherwise violate any provision of Maryland law nonetheless provide the basis for ‘sexual abuse’ within the meaning of Section 3-602 of the Criminal Law Article?” III. Maryland Rule 8-131 (c) directs: When an action has been tried without a jury, the appellate court will review the case on both the law and the evidence. It will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and will give due regard ⁶⁴⁴ to the opportunity of the trial court to judge the credibility of the witnesses.

Thus, we refrain from engaging in de novo fact-finding and accept the trial court’s factual findings unless they are clearly erroneous. Glover v. State, 368 Md. 211, 221-22 , 792 A.2d 1160,1165-66 (2002). When we review a trial court’s determinations of legal questions or conclusions of law based on those findings of fact, however, the clearly erroneous standard does not apply. Heat & Power Corp. v. Air Prods. & Chem.

Inc., 320 Md. 584, 591 , 578 A.2d 1202, 1205 (1990). Instead, we review de novo the trial court’s “relation of those facts to the applicable law.” Storetrax.com, Inc. v. Gurland, 397 Md. 37, 50 , 915 A.2d 991, 998 (2007); see also Schisler v. State, 394 Md. 519, 535 , 907 A.2d 175, 184 (2006) (noting that when an issue “involves an interpretation and application of Maryland constitutional, statutory or case law, our Court must determine whether the trial court’s conclusions are ‘legally correct’ under a de novo standard of review”).

IV

Tribbitt does not challenge the facts as found by the trial court. Rather, Tribbitt contends that Maryland Code (2002, 2007 Cum. Supp.), Criminal Law Article § 3-602 4 does not criminalize the acts that the trial court found that he committed on Kylie. Section 3-602 states: Sexual abuse of a minor.

(a) Definitions.—(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. ⁶⁴⁵ (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) Prohibited.—(1) 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. (c) Penalty.—A person who violates this section is guilty of a felony and on conviction is subject to imprisonment not exceeding 25 years. (d) Sentencing.—A sentence imposed under this section may be separate from and consecutive to or concurrent with a sentence for: (1) any crime based on the act establishing the violation of this section; or a(2) violation of § 3-601 of this subtitle involving an act of abuse separate from sexual abuse under this section.

Tribbitt’s main focus is on the interpretation of § 3-602(a)(4). He argues that § 3-602(a)(4), which defines sexual abuse, requires that, in order to be convicted of a violation of the statute, a defendant’s particular acts as found by the trial court must be “otherwise criminal” in nature. We disagree. The fundamental rules of statutory interpretation are well-settled. “ ‘The cardinal rule of statutory interpretation is to ascertain and effectuate the intent of the Legislature.

Statutory construction begins with the plain language of the statute, and ordinary, popular understanding of the English ⁶⁴⁶ language dictates interpretation of its terminology.’ ” Bowen v. City of Annapolis, 402 Md. 587, 613 , 937 A.2d 242, 257 (2007) (quoting Kushell v. Dep’t of Natural Res., 385 Md. 563, 576-78 , 870 A.2d 186, 193-94 (2005)). “When construing a statute, we recognize that it ‘should be read so that no word, clause, sentence or phrase is rendered superfluous or nugatory.’ ” Collins v. State, 383 Md. 684, 691 , 861 A.2d 727, 732 (2004) (quoting James v. Butler, 378 Md. 683, 696 , 838 A.2d 1180, 1187 (2003)). We will “neither add nor delete language so as to reflect an intent not evidenced in the plain and unambiguous language of the statute____” Price v. State, 378 Md. 378, 387 , 835 A.2d 1221, 1226 (2003). If the plain language of the statute is unambiguous, “the inquiry as to legislative intent ends; we do not then need to resort to the various, and sometimes inconsistent, external rules of construction, for ‘the- Legislature is presumed to have meant what it said and said what it meant.’ ” The Arundel Corp. v. Marie, 383 Md. 489, 502 , 860 A.2d 886, 894 (2004) (quoting Toler v. Motor Vehicle Admin., 373 Md. 214, 220 , 817 A.2d 229, 233 (2003)). “If, however, the meaning of the plain language is ambiguous or unclear, we seek to discern legislative intent from surrounding circumstances, such as legislative history, prior case law, and the purposes upon which the statutory framework was based.” Lewis v. State, 348 Md. 648, 653 , 705 A.2d 1128, 1131 (1998) (citing Haupt v. State, 340 Md. 462, 471 , 667 A.2d 179, 183 (1995)). “It is a fundamental principle of statutory construction that criminal statutes are to be construed narrowly so that courts will not extend the punishment to cases not plainly within the language used.” Farris v. State, 351 Md. 24, 36 , 716 A.2d 237, 243 (1998), superceded by statute on other grounds as stated in Boffen v. State, 372 Md. 724 , 816 A.2d 88 (2003) (internal quotation omitted). “The rule of lenity, however, is a maxim of statutory construction which serves only as an aid for resolving an ambiguity and it may not be used to create an ambiguity where none exists.” Jones v. State, 336 Md. 255, 261 , 647 A.2d 1204,1207 (1994). ⁶⁴⁷ Tribbitt argues that the plain language of the statute requires that, in order to come within the statutory definition of sexual abuse, his actions must be otherwise criminal. Tribbitt notes that the list of acts that are “included” in the definition of sexual abuses in § 3-602(a)(4)(ii) all are prohibited otherwise by law.

Therefore, Tribbitt contends, the Legislature intended that the definition of sexual abuse embraces only acts otherwise prohibited by law. 5 To conclude otherwise, he continues, would render § 3-602(a)(4)(ii) superfluous. Tribbitt is incorrect in his reading of the statute. The key to proper analysis of this argument rests primarily on Hackley v. State, 389 Md. 387 , 885 A.2d 816 (2005), and its discussion of the statutory meaning of the words “including” and “means.” 389 Md. at 392-93 , 885 A.2d at 819 . In Hackley , we addressed the construction of a criminal statute that stated “‘[s]talking’ means a malicious course of conduct that includes approaching or pursuing another person____” Maryland Code (1957,1996 RepLVol., 2001 Cum.Supp.), Article 27, § 124(a)(3); Hackley, 389 Md. at 392 , 885 A.2d at 819 . 6 We held that the words following “includes” did not make “approaching or pursuing” necessary elements of the offense.

We noted, as does Tribbitt in his brief here, that when statutory drafters use the term “means,” they intend the definition to be exhaustive. Hackley, 389 Md. at 393 , 885 A.2d at 819 . By contrast, when the drafters use the term “in- ⁶⁴⁸ eludes,” it is generally intended to be used as “illustration and not ... limitation.” Id. (internal quotation omitted); see also Maryland Code (1957, 2005 Repl.Vol.), Article 1, § 30 (“The words ‘includes’ or ‘including’ mean, unless the context requires otherwise, includes or including by way of illustration and not by way of limitation.”).

Tribbitt argues for the exact opposite interpretation of § 3-602(a)(4). He contends that the items following the term “includes” limit the definition of sexual abuse to the enumerated or otherwise criminal acts, instead of being merely illustrative. As in Hockley, however, the term “means” is exhaustive. The words following “means” form the broad definition of “sexual abuse.” Therefore, “sexual abuse” is defined by the Legislature as “an act that involves sexual molestation or exploitation of a minor, whether physical injuries are sustained or not.” The list in § 3-602(a)(4)(ii) merely provides examples of acts that come within that definition.

See United States. v. Gertz, 249 F.2d 662, 666 (9th Cir.1957) (“The likelihood that ‘includes’ is used in this sense in § 11 is fortified by the fact that in one of the definitions set out in chapter 1 of title 18(§ 9) U.S.C.A., ‘means’ is used instead of ‘includes,’ and in another such section (§ 6) both ‘means’ and ‘includes’ are used. It would therefore appear that in chapter 1, ‘means’ is used when the term and its definition are to be interchangeable equivalents, and ‘includes’ is used when it is desired to eliminate any doubt as to the inclusion in a larger class of the particular class specifically mentioned.”); Fed. Land Bank of St. Paul v. Bismarck Lumber Co., 314 U.S. 95, 100 , 62 S.Ct. 1, 4 , 86 L.Ed. 65 (1941) (noting that generally “the term ‘including’ is not one of all-embracing definition, but connotes simply an illustrative application of the general principle”); Helvering v. Morgan’s, Inc., 293 U.S. 121 , 126 n. 1, 55 S.Ct. 60 , 62 n. 1, 79 L.Ed. 232 (1934) (“That the draftsman used these words in a different sense seems clear. The natural distinction would be that where ‘means’ is employed, the term and its definition are to be interchangeable equivalents, and that the verb ‘includes’ imports a general class, some of whose particular ⁶⁴⁹ instances are those specified in the definition.”); Guar. Trust Co. of N.Y. v. W. Va.

Tpk. Comm’n, 109 F.Supp. 286, 296 (S.D.W.Va.1952) (“Clearly, by use of the word ‘including’ the lawmakers intended merely to list examples of known safety devices, but not to exclude others equally well known.”); Lyman v. Town of Bow Mar, 188 Colo. 216 , 533 P.2d 1129, 1133 (1975) (“Further, the word ‘include’ is ordinarily used as a word of extension or enlargement, and we find that it was so used in this definition. To hold otherwise here would transmogrify the word ‘include’ into the word ‘mean.’ ”); Norman J. Singer & J.D. Shambie Singer, 2A Sutherland Statutory Construction § 47:7 (7th ed. 2007) (“A term whose statutory definition declares what it ‘includes’ is more susceptible to extension of meaning by construction than where the definition declares what a term ‘means.’ ... A definition which declares what a term ‘means,’ excludes any meaning that is not stated.”).

Tribbitt’s interpretation of the statute would render much of § 3-602(a)(4) nugatory. To limit the definition of “sexual abuse” to otherwise criminal acts would ignore the Legislature’s statement that “ ‘[s]exual abuse’ means an act that involves sexual molestation or exploitation of a minor____” § 3-602(a)(4)(i). Tribbitt essentially would re-draft the statute to state that “ ‘sexual abuse’ means an otherwise criminal act that involves sexual molestation or exploitation of a minor.” The plain language of the statute clearly contemplates that all acts of sexual molestation and exploitation fall within the definition of sexual abuse. The textual history, although unnecessary to consider because the plain language of the statute is unambiguous, is particularly damaging to Tribbitt’s argument and confirms our view of the plain meaning.

Prior to the re-codification of the Criminal Law Article, the prohibition against sexual abuse of a child was found at Maryland Code (1957, 1996 Repl.Vol., 2001 Cum.Supp.), Article 27, § 35C(a)(6)(i). Sexual abuse was defined as “any act that involves sexual molestation or exploita ⁶⁵⁰ tion of a child by a parent or other person who has permanent or temporary care or custody or responsibility for supervision of a child, or by any household or family member.” (emphasis added). 7 “Any” act may not be read to be restricted to only acts made criminal elsewhere. The Special Revisor’s Note to the 2002 recodification states that the recodification was “derived without substantive change” from the previous version. Therefore, the proper construction of the statute is that “sexual abuse” still encompasses “any” act that involves sexual molestation or exploitation of a child.

Tribbitt’s argument also is contrary to our precedent. We have noted before that the definition of “sexual abuse” is not limited to the crimes enumerated by § 3-602(a)(4)(ii). See Cooksey v. State, 359 Md. 1, 24 , 752 A.2d 606, 618 (2000) (stating that “a charge of sexual child abuse may be sustained on evidence that would not support a conviction under the sexual offense, rape, sodomy, or perverted practice laws”) (citing Nightingale v. State, 312 Md. 699, 708 , 542 A.2d 373, 377 (1988), superceded by statute discussed infra). Dicta in Cooksey seems particularly apt: With respect to Count 4, the State alleged conduct ranging from the fondling of the victim’s breasts to simply rubbing against her.

A jury could certainly find a single incident of some of that conduct to constitute abuse under [the sexual abuse statute], but it might well require more than one ⁶⁵¹ incident of other conduct in order to find the requisite “sexual molestation or exploitation.” Cooksey, 359 Md. at 24 , 752 A.2d at 618 . Whether the touching of a person’s ‘buttocks’ would suffice as sexual contact [and therefore make the sexual abuse also a third or fourth degree sexual offense] is not clear. It might, however, depending on the circumstances, constitute sexual molestation or exploitation, even if it did not constitute sexual contact [and be otherwise criminal]. The same situation could arise from “rubbing against” the victim.

Cooksey, 359 Md. at 24 n. 1, 752 A.2d at 618 n. 1. In Nightingale , we observed that a jury may find a defendant guilty of child sexual abuse while finding that the conduct did not