Vigna v. State

Panel: Berger, Nazarian, Arthur, JJ. Nazarian, J. ⁷¹⁰ John Vigna was a long-time teacher at Cloverly Elementary, a public school in Montgomery County. In 2016, several students reported that Mr. Vigna had touched them inappropriately in his classroom, dating back as early as the 2001-2002 school year. Under the guise of a warm and affectionate teaching style, Mr. Vigna allegedly hugged female students and held them in his lap as he fondled their bodies through their clothing.

He was tried in the Circuit Court for Montgomery County and, on June 9, 2017, convicted of one count of Child Abuse, three counts of Sex Abuse of a Minor, and five counts of Sex Offense in the Third Degree. Mr. Vigna raises primarily evidentiary issues on appeal. First , he argues that the ⁶⁷² circuit court improperly excluded testimony (he describes it as character evidence) that Mr. ⁷¹¹ Vigna had a reputation in the community for interacting appropriately with children under his care. Second , he argues that the circuit court improperly admitted reprimands he had received in previous school years for interacting inappropriately with students in the classroom.

Third , he contends that the circuit court improperly admitted a school counselor's hearsay testimony relaying one victim's reports of her sexual abuse. And finally , he argues that the circuit court's evidentiary rulings violated his right to a fair trial under the Sixth Amendment to the U.S. Constitution. We disagree and affirm in toto . I. BACKGROUND Mr. Vigna's career with the Montgomery County Public Schools ("MCPS") began in 1992 and ended when the investigation giving rise to this case led to his dismissal in 2016.

During his time at MCPS, Mr. Vigna taught grades 3-5 at Cloverly Elementary and coached bocce and baseball at Paint Branch High School. He was widely adored as a teacher and a colleague. He maintained close relationships with his students long after they left his class, and his colleagues praised his teaching style and entrusted him to look after their own students when they were unable to do so. Despite his positive reputation, some of Mr. Vigna's colleagues expressed concern about how he interacted with students.

Jennifer Grey, 1 a fifth-grade teacher, testified that she had seen Mr. Vigna with students in his lap "[a] handful of times" and had spoken with him more than once about maintaining appropriate boundaries with students. Ms. Grey reported cautioning Mr. Vigna "especially as a male teacher ... [not to] be alone with female students one-on-one, and keep [his] distance." Ms. Grey testified that she did not believe there was anything sexual about Mr. Vigna's interactions with his students, but that it violated professional guidelines and the policies laid out in MCPS's pre-employment training. ⁷¹² In 2008, a fire marshal observed Mr. Vigna holding a child on his lap in his classroom. The fire marshal reported the incident to then-principal Melissa Brunson, who called Mr. Vigna into her office and gave him a verbal warning. Three months later, a building service worker saw Mr. Vigna with another child in his lap and was upset by what he saw.

A loud disagreement ensued, and Mr. Vigna followed the service worker down the hall and "[tried] to explain that the child was upset and that [he] was trying to meet that child's need at that moment." The incident nonetheless was reported to Dr. Brunson, who this time gave Mr. Vigna an official written reprimand and a formal warning that he could be terminated if his behavior persisted. Despite the warning, Mr. Vigna acknowledged that he "continued to hug, to kiss, to have kids in [his] lap and to have that kind of contact with children" because "[t]hat was what [he] deemed [to be] an effective teaching style." In 2013, MCPS conducted an investigation into Mr. Vigna's conduct in response to a parent complaint. This time, Mr. Vigna allegedly invited three "female students to sit on [his] lap, lift[ed] them in the air, and dance[d] with them during class." Mr. Vigna was placed on administrative leave for three weeks and received another written ⁶⁷³ reprimand, this time from the Chief Operating Officer of MCPS. Mr. Vigna wrote a brief response promising to alter his behavior: I am going to restrict my activities in the classroom to strictly teaching, counseling and advising students and will make every effort to not have any physical contact at all with my students.

In 2016, A.C. 2 became the first of several victims to report that Mr. Vigna sexually abused her. Mr. Vigna was A.C.'s third-grade teacher during the 2013-2014 school year. When she was in fifth grade, the school counselor, Heather Sobieralski, conducted a lesson in personal body safety for A.C.'s class. The lesson included information about various forms of abuse ⁷¹³ and how children should get help if they were mistreated.

The lesson included a definition of sexual abuse: "When someone touches you or asks you to touch them on the private parts of the body (those parts covered by a bathing suit), other than to keep you clean and/or healthy." Both Ms. Sobieralski and A.C.'s fifth grade teacher, Ms. Grey, noted with concern that A.C.'s demeanor changed during the lesson. Although ordinarily an engaged classroom participant, A.C. became despondent during the body safety class; she slumped down in her chair and eventually laid her head on the desk. Later that day, when Ms. Grey and Ms. Sobieralski asked A.C. if she was okay, A.C. said "You know how we all love Mr. Vigna? Well, he touches us in ways that makes us feel uncomfortable." A.C. reported that Mr. Vigna touches both her and her friend G.G.

"on our butt, and [ ] makes us sit on his lap, and won't let us get up." In a later interview with a social worker, A.C. stated that Mr. Vigna's behavior had gone on for years. The first incident she could recall occurred during her second-grade year, and the most recent just a few days before the interview. She reiterated that Mr. Vigna touched her buttocks and made her sit on his lap. A.C. said that Mr. Vigna would pull her onto his lap by her hips and pull her back if she attempted to get up.

She said that he rubbed her thighs with his hands and breathed steadily more and more heavily the longer she was held on his lap. When she was not on his lap, she said, his breathing was normal. A.C. also stated that when she was on Mr. Vigna's lap she could feel a "hard" part of his body, for which she did not have the vocabulary, "under her butt." When asked to locate the body part on an anatomical drawing, she circled the waistline. Mr. Vigna ultimately was charged with sexual crimes against five of his former students.

Each victim reported a similar pattern of behavior. All five victims were prepubescent girls at the time of the alleged incidents, and most testified to having felt that they had a special relationship with Mr. Vigna. Each child reported that Mr. Vigna touched their chests, buttocks, and genitals through their clothing. Most of the incidents took place with other students in the classroom and ⁷¹⁴ had been concealed by strategic timing and placement.

For example, Mr. Vigna often sat a child on his lap at his desk while the rest of his students watched videos at the front of the classroom. He also touched students at chaotic times, such as the end of the day, as the children prepared for dismissal. Another victim, G.G., reported that she and A.C. frequently went to say goodbye to Mr. Vigna at the end of the school day. G.G. described the same pattern that A.C. reported.

G.G. approached Mr. Vigna to say goodbye and give him a hug while he was seated at his desk. Mr. Vigna then rubbed her buttocks in a circular motion ⁶⁷⁴ with one hand during a "side hug." She also reported that Mr. Vigna rubbed and squeezed A.C.'s buttocks before they left his classroom. Two other victims, A.S. and J.S., are sisters. A.S. was in Mr. Vigna's third-grade class and reported that Mr. Vigna touched her weekly, if not more often, in ways that made her uncomfortable.

She reported that he called her to the back of the classroom during the school day and touched her chest, buttocks, and genitals over her clothing. He also placed his hands on her stomach under her clothing. A.S. said that Mr. Vigna kissed her forehead and told her that he loved her and that she was beautiful while he held her on his lap. J.S. was in Mr. Vigna's reading class.

She, too, reported that Mr. Vigna would call her to the back of the classroom and, while hugging her, rub her buttocks and genitals through her clothing. She stated that "[i]n class he would call me over to the back table, just me and him, and then he would make sure I sat right next to him, and then he would start hugging me. He would start touching my butt." L.D. was an adult at the time of trial. She was Mr. Vigna's student in fourth grade and stated that she was "very close with him;" she remembered "having a bond with him that [she] didn't have with other teachers." L.D. contacted the police after she saw an article on Facebook describing others' allegations against Mr. Vigna.

She reported that Mr. Vigna sexually abused her during the 2001-2002 school year, and she recounted events similar to those alleged by the younger victims: ⁷¹⁵ [A]t the end of the day, while we're waiting for the buses, he would have me and my former classmate [ ], I would sit on one leg and ... she would sit on the other leg, but it wasn't like Santa Claus style. It was like horseback ride style. So, I remember like we would lean back, and his hands would be on our, ... like on our legs. And I remember one specific instance where he was talking to some boys across the desk, and every time he talked, I felt his finger on my crotch.

And I remember this so well, even though it was so many years ago, because I felt sexually aroused when that happened. I felt like that tingly sensation, and that's when I knew something wasn't right. L.D. described "a routine" for Mr. Vigna's class, in which she "ha[d] to give him a kiss on the cheek every single day before we left to go ride our bus." She also said that on one occasion, Mr. Vigna instructed her to change her clothes in a closet in his classroom with the door ajar and that she felt very uncomfortable. All five victims testified at trial, as did several of Mr. Vigna's former colleagues, including Ms. Sobieralski, Ms. Grey, and Dr. Brunson.

Mr. Vigna also testified in his own defense, and he denied categorically that he ever touched a student for his sexual gratification. He testified that touching children inappropriately was "simply against the fiber of [him]." He did not deny that he often hugged children, had them sit on his lap, kissed them, and told them that he loved them: MR. VIGNA: I told all of my students that I loved them. I believe that you had to love them to lead them and if they knew that then they would follow you to new heights academically and socially.

MR. VIGNA'S COUNSEL: There has been testimony that on occasion you kissed a student on the forehead or on the top of the head or a student kissed you on the cheek. Did that ever happen? MR.

VIGNA: Yes, I would go back and blame that on my Italian family. ^{716 675} MR. VIGNA'S COUNSEL: And did any of those incidents about which we have just been speaking did that involve any attempt to sexually exploit any of the students in your class? MR. VIGNA: Absolutely not.

Mr. Vigna attributed much of his behavior to growing up in a large Italian family that emphasized physical affection. He said he viewed his students as his family and would not want to carry on teaching if he could not show them love and physical affection. Mr. Vigna also acknowledged that he had failed to comply with his agreement not to have physical contact with his students, and stated repeatedly that the students initiated 3 the hugs and lap-sitting. "[T]hey are little kids," he explained, "[s]o you can try and tell them not to sit on your lap but ... they are going to come up and hop on your knee whether you want them to or not." He attributed any contact that could have been interpreted as sexual to accidental touching in the daily classroom scuffle.

The jury convicted Mr. Vigna of nine of the fourteen counts charged. He later was sentenced to eighty years in prison, all but forty-eight suspended. Additional facts will be provided below as needed.

II

DISCUSSION Mr. Vigna challenges three of the circuit court's evidentiary rulings on appeal. He contends first that the trial court erred when it excluded, under Maryland Rule 5-404(a)(2)(A), evidence of his character, specifically his character for interacting appropriately with children. Second , he argues that his 2008 and 2013 reprimands for inappropriate physical contact with his students were improperly admitted as prior bad acts evidence under Maryland Rule 5-404(b). Third , he argues that the trial court improperly admitted A.C.'s complaint to Ms. Sobieralski under Maryland Rule 5-802.1(d).

And he argues finally that the circuit court's decisions to admit his prior ⁷¹⁷ reprimands while excluding his proffered character evidence violated his right to a fair trial under the Sixth Amendment to the United States Constitution. 4 We find that the circuit court properly exercised its discretion throughout the trial and affirm Mr. Vigna's convictions. A. "Appropriate Interaction With Children" Is Not A Pertinent Character Trait Under Maryland Rule 5-404(a)(2)(A). We begin with Mr. Vigna's argument that the circuit court erred when it excluded defense testimony about his reputation in the community for "appropriate interaction with students in his care and custody." Mr. Vigna sought to admit this testimony under Maryland Rule 5-404(a)(2)(A), which allows defendants in criminal cases to offer evidence of their "pertinent trait[s] of character." The trial judge permitted Mr. Vigna's character witnesses to testify to his truthful and law-abiding nature, but found that interacting appropriately with the children under his care was not a pertinent character trait within the meaning of the Rule.

We review this question of statutory interpretation de novo. Generally, "evidence of a person's character or character trait is not admissible to ⁶⁷⁶ prove that the person acted in accordance with the character or trait on a particular occasion." Md. Rule 5-404(a). Rule 5-404(a)(2)(A) is an exception to the general prohibition on propensity character evidence that applies in criminal cases: An accused may offer evidence of the accused's pertinent trait of character. If the evidence is admitted, the prosecution may offer evidence to rebut it.

Md. Rule 5-404(a)(2)(A). The scope of what constitutes a "pertinent character trait" under Rule 5-404(a)(2)(A) is defined by the nature of the ⁷¹⁸ crimes alleged. To be admissible, the evidence must be "confined to an attribute or trait the existence or non-existence of which would be involved in the noncommission or commission of the particular crime charged." Braxton v. State , 11 Md. App. 435 , 440, 274 A.2d 647 (1971). In other words, pertinent character traits must be relevant to the specific crimes charged-they must have some bearing on the likelihood that a person exhibiting that trait would (or would not) commit the crimes of which he stands accused.

The issue before us, therefore, is whether Mr. Vigna's reputation in the community for appropriately interacting with children bears on whether he sexually abused them. We agree with the circuit court that it does not. This narrow issue is one of first impression in Maryland. Mr. Vigna relies primarily on State v. Rothwell , a decision from the Court of Appeals of Idaho that held that "character traits relating to a defendant's sexual morality with children are pertinent" in a case involving sexual misconduct with a minor under Idaho Rule 404(a)(2)(A). 5 154 Idaho 125 , 131, 294 P.3d 1137 (Ct. App. 2013).

The court found the evidence relevant, albeit limited in probative value, and Mr. Vigna urges us to adopt its reasoning: Because character traits relating to a defendant's sexual morality with children are pertinent, or relevant, in this type of case, such evidence is admissible under I.R.E 404(a)(1). We recognize that sexual abuse is usually secret behavior that would not be observed by others, and therefore the opinion or reputation evidence about a defendant's trustworthiness with children may be of marginal persuasiveness.... It appears that Rule 404(a)(1) was nevertheless intended to allow an accused the opportunity to present evidence of good character that is pertinent to the nature of the charged offense. The unlikelihood that the character witnesses would have been in a position to witness criminal ⁷¹⁹ conduct of the defendant goes to the weight of character evidence, not its admissibility.

Id. at 131 , 294 P.3d 1137 . The majority of jurisdictions that have considered this general question have concluded, as Idaho did, that a defendant's interactions with children, sexual predispositions, and general "morality" are pertinent character traits in child sex abuse cases. See e.g. , People v. McAlpin , 53 Cal.3d 1289 , 1309, 283 Cal.Rptr. 382 , 812 P.2d 563 (1991) (witnesses should have been permitted to testify that the defendant was "not a person given to lewd conduct with children"); State v. Rhodes , 219 Ariz. 476 , 479, 200 P.3d 973 (App. 2008) (the defendant's "sexual normalcy, or appropriateness in interacting with children" was a pertinent trait); State v. Hughes , 841 So.2d 718 , 723 (La. 2003) ("a defendant may present evidence of his or her reputation in the community as a moral person and for safe and proper treatment of young children ..."); ⁶⁷⁷ State v. Enakiev , 175 Or.App. 589 , 596, 29 P.3d 1160 (2001) (evidence of a defendant's "sexual propriety" is admissible as a pertinent trait in a prosecution for a sex crime). Those jurisdictions make no distinction between the traits for sexual propriety or appropriateness with children and more traditional traits offered as character evidence such as honesty or peacefulness.

And like Idaho, they reason that the limited probative value of the evidence goes only to its weight, not to its admissibility. See Rhodes , 219 Ariz. at 479 , 200 P.3d 973 . Mr. Vigna asks us to take this principle a step further, and essentially tries to cast the ultimate issue in this case-whether he acted in a sexually inappropriate manner around children-as a character trait. We don't dispute that reputation testimony about a pertinent character trait is admissible even when its probative value is limited.

But evidence can be admitted for a jury's assessment of weight and credibility only after a threshold finding that the proffered trait is relevant. And we are not convinced that a defendant's reputation in the community for interacting appropriately with children is relevant in a child sex abuse case. ⁷²⁰ Unlike honesty or peacefulness, traits a person might exhibit visibly day-to-day, sexual interests, predilections, or deviancy are not readily discernable to a casual observer, or even a close colleague. For that reason, courts in other states have disagreed with the majority view and have found reputation evidence relating to sexual behavior irrelevant to a defendant's guilt for sexual crimes involving children. Put another way, the fact that a defendant might have behaved appropriately with children in some instances does not make it more or less likely that the defendant sexually abused a child. 6 In State v. Jackson , the Court of Appeals of Washington held that because of the secretive nature of sexual crimes, and sexual activity in general, a defendant's reputation for sexual activity, or the lack thereof, bore no correlation to the likelihood that they committed the crimes charged: The crimes of indecent liberties and incest concern sexual activity, which is normally an intimate, private affair not known to the community.

One's reputation for sexual activity, or lack thereof, may have no correlation to one's actual sexual conduct. Simply put, one's reputation for moral decency is not pertinent to whether one has committed indecent liberties or incest. 46 Wash.App. 360 , 365, 730 P.2d 1361 (1986). Florida courts have likewise found that a defendant's reputation for sexual morality did not bear on the likelihood that he committed a sexual crime against a child. If anything, the District Court of Appeal of Florida observed, that sort of testimony is inherently unreliable: ⁷²¹ [T]he court was concerned with the reliability of such reputations given that sexual conduct of the nature alleged here normally does not occur in public.

Implicit in the court's analysis is the conclusion that reputations for truthfulness, peacefulness, etc. are more reliable and less likely to differ from reality ⁶⁷⁸ because those traits are commonly displayed in public.... In addition, it is highly unlikely that a person will discuss his or her immoral or indecent sexual conduct; therefore, a person's reputation for sexual conduct is not likely to reflect immoral or indecent conduct. Hendricks v. State , 34 So.3d 819 , 824 (Fla. 1st DCA 2010) (quoting State v. Spencer , 84 Wash.App. 1010 (1996) (unreported), No. 35276-8-I, 1996 WL 665931 ); see also Alvelo v. State , 769 So.2d 476 (Fla. 5th DCA 2000). And New Hampshire reached a similar conclusion, finding in State v. Graf that because sexual crimes are undertaken furtively, character witnesses necessarily lack the required foundation to "form an opinion as to whether the defendant is the type of person to sexually assault or to take advantage of children." 143 N.H. 294 , 299, 726 A.2d 1270 (1999).

The court couched its conclusion in relevance terms: "Accordingly, the proffered evidence, lacking any foundation, would be irrelevant because it does not have the tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence." Id. We join those courts that have declined to extend the general rule allowing character and reputation evidence to include more granular testimony about a defendant's reputation for sexual propriety or appropriateness with children. We agree with our Floridian counterparts that testimony from colleagues that Mr. Vigna hadn't acted inappropriately with children in their presence "is not the kind of evidence contemplated by character testimony. Unlike one's reputation for honesty or peacefulness, traits that might be noticed by the community, whether one secretly molests children or does not would not be openly exhibited[.]" Alvelo , 769 So.2d at 477 .

And we find those cases particularly compelling in light of the growing understanding about adults who sexually abuse children ⁷²² and the tactics they employ to gain access to their victims. Sexual predators are "not instantly recognizable as the 'dirty old man in the raincoat.' " Anne-Marie McAlinden, Setting 'Em Up: Personal, Familial, and Institutional Grooming in the Sexual Abuse of Children , 15 SOC. AND LEGAL STUD. 339, 348 (2006). They blend into the community and often stand in trust relationships-coaches, clergy, teachers, physicians, or family members-with their victims.

Id. Offenders "groom" victims through these relationships and "skillfully manipulate a child into a situation where he or she can be more readily sexually abused and is simultaneously less likely to disclose." Id. at 346. 7 Recent news accounts demonstrate how offenders exploit trust relationships, not only with children but also their parents and the community at large, to gain access to victims. 8 Before these allegations ⁶⁷⁹ became public, ⁷²³ there undoubtedly were colleagues, parents, and other children who could have testified honestly that they believed those abusers were appropriate with children and much beloved by the community for the strong relationships they formed with them. To admit a community member's opinion about a defendant's reputation for propriety with children would fail to "consider that sex offenders may [ ] groom not just the child but also their family or the wider community as a necessary prerequisite to gaining access" to child victims. Id. at 341.

In this way, they "ingratiate themselves with children and infiltrate themselves into unsuspecting ... communities.... To do this successfully, they must pass themselves off as being very nice, usually, men who simply like children." Id. at 348. This is not to suggest that teachers, clergy, or other adults with close relationships with