Tubaya v. State

RODOWSKY, J. Valencia Tubaya, the appellant, was convicted by a jury sitting in the Circuit Court for Baltimore City of two counts of second degree assault in violation of Maryland Code (2002, 2011 Cum.Supp.), § 3-203 of the Criminal Law Article (CL). She was found not guilty of carrying a dangerous weapon openly with the intent to injure in violation of CL § 4-101(c)(2). She presents one question for our review: whether the circuit court erred in denying her pretrial motion to dismiss on the ground of collateral estoppel. We find no error and, for the following reasons, we shall affirm the judgments of the circuit court. ⁴⁸ Facts and Proceedings On June 27, 2011, the appellant forced her way into the home of her elderly parents, Yvonne and Francisco Tubaya.

Mrs. Tubaya told the appellant to leave and threatened to call the police. The appellant approached the chair where Mrs. Tubaya was seated, placed a “sharp metal object” against Mrs. Tubaya’s neck, and threatened to cut Mrs. Tubaya’s dialysis tubes out of her neck. When Mr. Tubaya told the appellant to stop, the appellant approached the chair where he had been seated, grabbed him by the arm, and pushed him back in the chair. After speaking to Mr. and Mrs. Tubaya for several minutes, the appellant left the home.

Later that day, after speaking with police officers, Mrs. Tubaya and her daughter (the appellant’s sister), Francesca Tubaya, filed an application for a statement of charges and a petition for a protective order in the District Court of Maryland in Baltimore City. The District Court issued an interim protective order on June 27, 2011, and temporary protective orders on June 29 and July 6, 13, 20, and 27, 2011. The District Court denied a final protective order on August 19, 2011, for lack of clear and convincing evidence. 1 Meanwhile, the appellant’s criminal case proceeded in the District Court based on Mrs. Tubaya’s June 27, 2011 complaint. The appellant prayed a jury trial, and the case was transferred to the Circuit Court for Baltimore City.

The appellant moved to dismiss the charges against her on the ground that the District Court’s August 19, 2011 denial of a final protective order collaterally estopped the State from litigating whether the alleged assault had occurred. The court denied the motion on the ground that the State had not been a party to the protective order case. The case was tried to a jury on September 28 and 29, 2011. As we have noted, the ⁴⁹ jury found the appellant guilty of two counts of second degree assault and not guilty of carrying a dangerous weapon openly with the intent to injure.

The court imposed concurrent suspended sentences of two years in prison and two years of supervised probation for each count of second degree assault. The appellant noted this timely appeal. Discussion The appellant contends that the circuit court’s denial of her motion to dismiss deprived her of her Fifth Amendment protection against double jeopardy. She maintains that the District Court’s finding that there was not clear and convincing evidence to support a final protective order was a conclusive determination that no assault had taken place.

She argues, relying on Bowling v. State, 298 Md. 396 , 470 A.2d 797 (1984), that this should collaterally estop the State from litigating in a subsequent criminal trial whether the assault took place. The State responds that it cannot be collaterally estopped from pursuing criminal charges against the appellant based on the assault because it was not a party to the protective order case. We review this legal issue de novo. See, e.g., State v. Johnson, 367 Md. 418, 424 , 788 A.2d 628, 631 (2002).

Collateral estoppel is embodied in the Fifth Amendment and Maryland common law protections against double jeopardy. Ashe v. Swenson, 397 U.S. 436, 445-46 , 90 S.Ct. 1189, 1195 , 25 L.Ed.2d 469, 476-77 (1970); Odum v. State, 412 Md. 593, 606 , 989 A.2d 232, 240 (2010). Collateral estoppel “means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Ashe, 397 U.S. at 443 , 90 S.Ct. at 1194 , 25 L.Ed.2d at 475 . In Bowling , the Court of Appeals set forth the requirements that must be met in order “for the State to be precluded in a criminal trial from relitigating an issue resolved against it