Utter v. State

DEBORAH S. EYLER, Judge. Charles David Utter, the appellant, was convicted by a jury in the Circuit Court for Harford County of attempted first degree rape, attempted second degree rape, first degree burglary, and third degree burglary. The court sentenced him to ⁴⁵ 50 years in prison, all but 30 years suspended, for the attempted first degree rape conviction. It imposed a sentence of 20 years in prison, to be served consecutive to the 30-year sentence, for the first degree burglary conviction.

The other sentences were merged. On appeal, the appellant presents the following questions for review: I. Did the trial court err by refusing to allow him to call a defense witness?

II

Did the sentencing court err in imposing separate, consecutive sentences for the first degree burglary and attempted first degree rape convictions? For the following reasons, we answer the first question “No,” and the second question “Yes.” Accordingly, we shall vacate the appellant’s 20-year sentence for first degree burglary; otherwise, we shall affirm the judgments of the circuit court. FACTS AND PROCEEDINGS On the night of August 21,1998, a man broke into Christine M.’s house and attempted to rape her. When the crimes occurred, Christine was 14 years old and was living with her father in Edgewood, Maryland.

Her best friend, Melissa, and Melissa’s parents lived around the corner from Christine. Melissa’s uncle, the appellant, lived in the house next door to Melissa. On the day in question, Christine and Deborah Preisinger, Christine’s neighbor from across the street, visited Christine’s mother in a nursing home. They returned to Ms. Preisinger’s house and had dinner.

At about 11:00 p.m., Christine walked across the street to her house. No one was there because Christine’s father had thought (mistakenly) that she would not be home that night. Christine changed into a nightshirt and shorts and went to bed. As she was lying in bed about to fall asleep, she heard her bedroom door open, and felt someone climb across her ⁴⁶ bed.

At first, she thought that her father had come home and had come into her room to say goodnight. When the person who had climbed across the bed covered her mouth and flipped her over, Christine realized that he was not her father. The man threatened to kill Christine if she screamed, started kissing her and sucking her neck, and then made her remove her shorts. He attempted to have intercourse with her, without success.

His penis touched her vaginal opening during that attempt. Christine cried, tried to get away, and bit the man. The man attempted to have intercourse with her at least three more times. When Christine managed to put her feet on the man’s chest and push him away, he left.

Christine did not get a clear view of her assailant, but she was able to describe him as having long hair and being “kind of skinny.” The light in the hallway permitted her to see the side of his face as he left the room. At that time, she thought the man was the appellant. As soon as the man left, Christine called Melissa, who was not home, and spoke to Melissa’s mother and told her what had happened. Melissa’s mother called the police; she and her husband then drove to Christine’s house, and were present when the police arrived.

The police took possession of the clothing that Christine had been wearing. Christine was taken to the hospital and examined. She was found to have two bruises on her neck, but no other trauma. No evidence of semen was found.

The police collected Christine’s bed linens and dusted areas of the house for fingerprints. They discovered that a window screen had been cut out of one of the windows in the house. According to Christine, the screen had not been in that condition when she got into bed on the night of the assault. The window had been left open, however.

When the police interviewed Christine on the night of the assault, she did not identify her assailant. Two days later, she called the detective who had interviewed her and told him she believed that the appellant was the person who had “been in ⁴⁷ her house.” The police then obtained a search warrant that authorized them to take blood and hair samples from the appellant. Christine’s bed sheet and nightshirt were found to have semen on them. DNA testing of those items and of the known samples of blood from the appellant established: 1) that with respect to the bed sheet, the probability of selecting an unrelated individual at random from the Caucasian population was one in 160 million, and from the African-American population was one in 1.5 billion; and 2) -with respect to the nightshirt, that probability for a Caucasian was one in 2.3 million and for an African American was one in 11 million. 1 No other forensic evidence tied the appellant to the crime, however.

At the appellant’s trial, Melissa testified that on the night in question she had been with the appellant and with other family members, including her mother, at an aunt’s house. At about 11:20 p.m., they drove the appellant home but dropped him in the driveway next to his house because he did not want to go home. He had been drinking heavily and was saying words to the effect that he wanted to find someone to have sex with. Melissa also testified that the appellant had expressed a sexual interest in Christine in the past.

Melissa’s mother corroborated Melissa’s testimony and stated that, sometime between 11:00 and 11:30 p.m., she saw someone that she thought was the appellant riding a bicycle past her house toward the street on which Christine lived. She further testified that when she went to Christine’s house after receiving her telephone call, Christine was upset and crying, and gave a description of her assailant that fit that of the appellant, although she did not identify him. Christine testified for the State, as did Deborah Preisinger; the emergency room nurse who examined Christine; two police detectives who participated in the investigation; and two forensic DNA experts. ⁴⁸ The appellant testified on his own behalf. He denied entering Christine’s home on the night in question or any involvement in the attack on her.

Additional facts will be recited in our discussion of the issues. DISCUSSION I In an effort to counter the DNA “match” evidence, the appellant testified about a possible explanation for the presence of his semen on Christine’s nightshirt. The appellant stated that he knew ■ Christine because she was friends with his niece Melissa and that he had “played with her sometimes, we kidded around, water fights, mud fights, wrestling around.” One day in the last week of July (about three weeks before the attempted rape), at about 4:30 or 5:00 p.m., the appellant was walking his dog through backyards in the neighborhood when he saw Christine sitting on her back porch. She called out to him and asked for a cigarette.

He walked up to the back porch and gave her his pack of cigarettes. She took a cigarette but held onto the pack. When he asked for it back, she started “playing around” with him, like they had before, and then grabbed his penis. She started to masturbate him and there was an emission of semen.

When this incident occurred, Christine was wearing a baggie tee-shirt. The appellant could not say whether the tee-shirt that Christine was wearing that day was the same nightshirt that she was wearing on the night of the attempted rape and that had been found to contain his semen. After the appellant finished testifying, defense counsel approached the bench and told the court that he wanted to call Ms. Preisinger (who already had testified for the State). He proffered that Ms. Preisinger would testify that shortly after the attempted rape, she had spoken with Christine and had told her that she knew that Christine offered sexual favors in exchange for cigarettes; and that when she said that to ⁴⁹ Christine, Christine remained silent and looked away.

Defense counsel argued that that testimony constituted an admission by silence on Christine’s part that would “tend[ ] to support the cigarette incident in the back yard that [the appellant] just testified to.” The State objected to the proffered testimony, and the trial court ruled it inadmissible, under the Maryland Rape Shield Law. Later in the trial, the court explained in detail the reason for its ruling: I think it’s clear [the proffered testimony] doesn’t satisfy the conditions, any one of the four conditions which are necessary for me to determine whether or not the evidence should be admitted, and that is: It doesn’t refer to the defense of past sexual conduct with the defendant; the testimony of Miss Preisinger does not indicate there is any evidence of any specific instance of sexual activity showing the source of the semen or such; it’s not evidence which supports any claim that the victim has an ulterior motive; and it’s not evidence which is offered for the purpose of impeachment. The prosecutor did not put the victim’s past or prior sexual conduct in issue, so it doesn’t meet those criteria, without even getting to the balancing of the probative versus prejudicial. The appellant contends that the trial court’s ruling was in error because the proffered testimony of Ms. Preisinger was admissible under the Rape Shield Law and, if it was not, he nevertheless had a constitutional right to present the testimony in his defense.

The Maryland Rape Shield Law, Md.Code (1957, 1996 Repl.Vol. & 2000 Supp.), art. 27, § 461A, provides, in relevant part: (a) Evidence relating to victim’s chastity. — Evidence relating to a victim’s reputation for chastity ... [is] not admissible in any prosecution for ... attempted rape----Evidence of specific instances of the victim’s prior