Vigna v. State

John Vigna v. State of Maryland, No. 55, September Term, 2019. Opinion by Biran, J. CRIMINAL LAW – CHARACTER EVIDENCE – CHARACTER OF THE ACCUSED FOR APPROPRIATENESS WITH CHILDREN – The Court of Appeals held that, in a prosecution of a defendant for a sex crime against a minor, the defendant’s character for appropriateness with children in his custody or care may be a pertinent trait of character for purposes of admissibility of character evidence under Maryland Rule 5- 404(a)(2)(A). When the State objects to a defendant’s proffer of opinion or reputation evidence under Rule 5-404(a)(2)(A) to establish his or her character for a particular trait, the trial court must determine whether: (1) the particular quality identified by the defendant is a “trait of character” within the meaning of Rule 5-404(a)(2)(A); and (2) evidence of such a trait of character is “pertinent,” i.e., relevant to the trier of fact’s consideration of the charged offenses. If the trial court answers both of these questions in the affirmative, then the court (if requested by the State) should (3) analyze the proffered evidence under Maryland Rule 5-403 to determine whether its probative value is substantially outweighed by the danger of unfair prejudice or another circumstance listed in that Rule.

CRIMINAL LAW – CHARACTER EVIDENCE – HARMLESS ERROR – The Court of Appeals held that any error in excluding evidence of Petitioner’s character for appropriateness with children in his custody or care was harmless beyond a reasonable doubt. Testimony from parents who stated that, based on their experiences in seeing Petitioner interact with children in his custody or care, they would entrust the lives of their children and other children to him, was functionally the equivalent of an opinion that Petitioner was the type of person who was appropriate with children in his custody or care. In addition, opinion testimony of multiple defense witnesses that Petitioner was law- abiding, although broader than the excluded opinion evidence Petitioner sought to elicit, ultimately served the same purpose. APPELLATE PRACTICE – ABANDONMENT AND PRESERVATION OF ARGUMENTS – The Court of Appeals held that, where Petitioner included no substantive argument in his briefs on the constitutional question for which the Court granted review, Petitioner abandoned the argument.

In addition, Petitioner failed to preserve his new constitutional argument for appellate review, where he raised it for the first time in his briefs to the Court. CRIMINAL LAW – SIXTH AMENDMENT RIGHT TO FAIR TRIAL – DUE PROCESS – The Court of Appeals held that, because any evidentiary error was harmless beyond a reasonable doubt, Petitioner received a fair trial under the Sixth Amendment. In addition, the trial court’s adverse evidentiary ruling did not prevent Petitioner from presenting a meaningful defense. Thus, the exclusion of the proffered character evidence did not deprive Petitioner of due process.

Circuit Court for Montgomery County Case Nos. 130781C & 129932C Argued: March 9, 2020 IN THE COURT OF APPEALS OF MARYLAND No. 55 September Term, 2019 Case No. 419686V Argued 1/7/19 JOHN VIGNA v. STATE OF MARYLAND Barbera, C.J. McDonald Watts Hotten Getty Booth Biran, JJ. Opinion by Biran, J. Watts and Hotten, JJ., concur. Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. Suzanne Johnson Filed: August 18, 2020 2020-08-20 14:51-04:00 Suzanne C. Johnson, Clerk For many years, John Vigna was a popular elementary school teacher in Silver Spring, Maryland.

But, as our nation has learned all too well, it is possible for a person to be a popular teacher (or coach or trainer or member of the clergy, etc.) and, at the same time, to sexually abuse children entrusted to his care. According to the evidence the jury heard in this case, Vigna sexually abused several female students while he was their teacher. The evidence showed that Vigna would have these young girls sit in his lap, and then would rub their buttocks and touch their genital areas over their clothes, or otherwise touch the girls for his sexual gratification. At his trial, Vigna sought to elicit evidence from parents of students and from professional colleagues that, in their opinion, Vigna is the type of person who behaves appropriately with children in his custody or care.

The trial judge ruled this evidence inadmissible, reasoning that appropriateness with children in one’s custody or care is not a “trait of character” within the meaning of the applicable rule of evidence. However, the trial judge allowed Vigna’s character witnesses to testify that Vigna is law-abiding and truthful. The jury convicted Vigna on nine counts, and the trial judge sentenced Vigna to 80 years of imprisonment, suspending all but 48 years. The Court of Special Appeals affirmed the trial court’s evidentiary rulings and upheld Vigna’s convictions.

We have not previously considered whether the type of character evidence Vigna sought to introduce at his trial is proper under the Maryland Rules. For the reasons discussed below, we conclude that character evidence of appropriateness with children in one’s custody or care (or of similar character traits, such as trustworthiness with children or sexual morality with respect to children) may be admissible in a criminal case where a defendant is accused of sexually abusing a child. However, we hold that any error by the trial court in excluding such character evidence in Vigna’s case was harmless beyond a reasonable doubt. We also reject Vigna’s constitutional arguments based on the trial court’s evidentiary rulings.

Accordingly, we affirm Vigna’s convictions. I Background A. Vigna’s Career as a Teacher Vigna was a teacher in the Montgomery County Public Schools (“MCPS”) system from 1992 until his dismissal in 2016 following the emergence of the allegations that led to this criminal case. During his tenure with MCPS, Vigna taught grades three through five at Cloverly Elementary School (“Cloverly”) in Silver Spring. He also coached baseball and unified bocce at nearby Paint Branch High School, handling the three roles simultaneously before the end of his employment with MCPS.

Vigna was very popular with students and other teachers. Vigna’s students adored his affectionate teaching style, and many of them maintained close relationships with Vigna after they left his classroom. Vigna’s fellow teachers respected his abilities as a teacher, and several entrusted him with their students when they had to attend to other matters. According to Vigna, he treated his students like family, which for Vigna included physical displays of affection.

He often hugged, kissed, and consoled students during the school day. These interactions with students did not go unnoticed by colleagues and others. Occasionally, other teachers and staff saw Vigna with students on his lap as he sat behind 2 his desk. On several occasions, these physical contacts prompted concerned observers either to speak with Vigna directly or to alert school officials about his conduct.

Jennifer Grey, a fifth-grade teacher at Cloverly, took the former approach. More than once, Ms. Grey cautioned Vigna that, “especially as a male teacher,” he should not “be alone with female students one-on-one,” and that he should “keep [his] distance.” Another teacher at Cloverly and a close friend of Vigna, David Cline, also cautioned Vigna about engaging students too closely. Ms. Grey and Mr. Cline were not concerned about the possibility of any sexual contact with students; rather, Vigna’s colleagues were “looking out for his well-being” by reminding him of professional guidelines and what they “felt was appropriate.” In response to Ms. Grey, Vigna on at least one occasion asserted that he was “not doing anything wrong.” On two occasions in 2008, while Vigna was a fifth-grade teacher, Cloverly principal Melissa Brunson1 became aware of students sitting in Vigna’s lap. First, on February 28, 2008, a fire marshal reported to Dr. Brunson that, during a routine inspection, he saw a student sitting on Vigna’s lap.

Dr. Brunson gave Vigna a verbal warning and counseled him not to have students sit in his lap. Vigna indicated to Dr. Brunson that he understood the problem. 1 MCPS documents dating from 2013 and earlier, which were introduced as exhibits at Vigna’s trial, refer to Cloverly’s principal as “Ms.” Brunson. At trial, the parties referred to her as “Dr.” Brunson. The record does not reflect when Dr. Brunson obtained her doctoral degree.

We will use Dr. Brunson’s current title in this opinion. 3 Second, on or about May 29, 2008, a building service worker became upset after he saw a student sitting in Vigna’s lap. Vigna pursued the staff member down the hall. According to Vigna, he tried to “explain that the child was upset and that [he] was trying to meet the child’s needs at that moment.” The loud exchange between Vigna and the building service worker received the attention of nearby staff, including Mr. Cline, who helped to deescalate the situation and took Vigna to Dr. Brunson’s office. On June 2, 2008, having received two reports of lap-sitting over a three-month span, Dr. Brunson issued a letter of reprimand to Vigna (the “2008 reprimand”), stating that his “handling of this situation was improper, unprofessional, and must not be repeated.” The letter informed Vigna that further incidents could lead to his termination.

Vigna signed the 2008 reprimand on June 2, 2008. To monitor Vigna more easily, Dr. Brunson moved him from a classroom located outside the building to one next to her office. Thereafter, Vigna taught the third grade instead of the fifth grade, although fourth- and fifth-grade students often visited his classroom after dismissal, while they were waiting for their buses to be called. According to Vigna, he remained committed to his “family” style of teaching despite Dr. Brunson’s warnings.

During the 2012-13 school year, prompted by a parent complaint, Dr. Brunson requested that MCPS’s Office of Human Resources and Development investigate allegations that Vigna “had invited female students to sit on [his] lap, lift[ed] them in the air, and danc[ed] with them during class.” During the investigation, Vigna was placed on administrative leave for approximately three weeks. In a statement that Vigna provided in 4 relation to that investigation, Vigna wrote: “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.” The result of the 2012-13 investigation was that Vigna received another letter of reprimand, this time from Larry A. Bowers, the Chief Operating Officer of MCPS (the “2013 reprimand”). Referencing Vigna’s two lap-sitting incidents in 2008 and Dr. Brunson’s admonition to Vigna at that time, Mr. Bowers wrote, “It is difficult to believe that any teacher, especially a veteran teacher, would not understand what is respectful and professional behavior, even after receiving a reprimand.” Mr. Bowers warned Vigna that he needed to “alter [his] interactions with students immediately,” and that “[a]ny further instances of such unprofessional behavior may be grounds for more severe disciplinary action up to and including dismissal.” B. The Criminal Investigation and Charges The criminal charges against Vigna involved four girls and a young woman who all accused him of touching them in a sexual manner while they attended Cloverly.2 The first of Vigna’s former students to identify incidents of sexual abuse was A.C., who had been Vigna’s student in third grade during the 2013-14 school year. Teachers knew A.C. as an engaging and attentive student.

In February 2016, A.C. was in Ms. Grey’s fifth-grade classroom when, during a pilot class on body safety taught by school counselor Heather 2 We will refer to the victims by their initials to protect their privacy. The five former Cloverly students who testified that Vigna abused them were: friends A.C. and G.G.; L.D., who was an adult at the time of trial; and sisters A.S. and J.S. 5 Sobieralski, her demeanor changed. For the fifth-grade version of the body safety class, Ms. Sobieralski taught lessons on different types of abuse, starting with physical abuse. Later, she discussed sexual abuse.

The PowerPoint slide she showed the class defined sexual abuse as follows: “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.” The following slide identified different types of touches, including “Unsafe/unwanted touch,” which “feels uncomfortable, embarrassing or scary.” At about this point in the presentation, Ms. Sobieralski noticed that A.C. was “slumped down in her chair and staring out the window. And eventually she put her head down.” Observing the near-30 student class from her desk at the front of the room, Ms. Grey saw the same thing. They both considered this behavior unusual for A.C. During a break in instruction, Ms. Grey pulled Ms. Sobieralski aside to express her concern, and Ms. Sobieralski advised Ms. Grey to check on A.C. after class. When Ms. Grey first approached her, A.C. told Ms. Grey that she was okay, but at the end of the school day about an hour later, A.C. spoke to Ms. Grey again.

This time, A.C. brought up Vigna: “You know how we all love Mr. Vigna? Well, he touches us in ways that make[] us feel uncomfortable.” Ms. Grey then took A.C. to Ms. Sobieralski’s office. After Ms. Sobieralski asked A.C. to explain how Mr. Vigna makes her feel comfortable, A.C. responded, “when he hugs me he touches my butt. And he makes me sit on his lap, and when I try to get up he doesn’t let me.” A.C. said this activity occurred when she was in Vigna’s third-grade class and continued when she regularly went to say goodbye to him in the fourth and fifth grades. 6 A.C. then met with a forensic social worker, Sara Kulow-Malave, at the Tree House Child Advocacy Center of Montgomery County.

There, A.C. described how Vigna made girls feel uncomfortable. She told Ms. Kulow-Malave that Vigna touched her buttocks and made her sit on his lap. A.C. said that Vigna would rub her thighs with his hands and breathed steadily more and more heavily as she sat on his lap. She also stated that when she was on Vigna’s lap, she could feel a “hard” part of his body “under her butt.” When Ms. Kulow-Malave asked A.C. to show on an anatomical drawing where the hard part of Vigna’s body was, she circled the waistline.

A.C. told Ms. Kulow-Malave that the first time Vigna made A.C. feel uncomfortable was during her second-grade year, and that the most recent time was just a few days before the body safety class with Ms. Sobieralski. During her discussion with Ms. Sobieralski and again with Ms. Kulow-Malave, A.C. also claimed that she saw Vigna touch her friend, G.G., inappropriately. G.G. never had Vigna as her primary teacher but would accompany A.C. when she visited his classroom after the final bell of the day. A.C. said that Vigna moved his hand over G.G.’s buttocks while giving her a hug.

On February 12, 2016, the day after her interview with A.C., Ms. Kulow-Malave interviewed G.G. In addition to describing her own encounter with Vigna, G.G. corroborated A.C.’s account of repeated uncomfortable touches. G.G. explained how Mr. Vigna touched them differently during their hugs, and described how Vigna “squeezed” A.C.’s buttocks. Vigna was removed as a teacher at Cloverly immediately after these allegations of sexual abuse surfaced. A criminal investigation ensued.

On June 23, 2016, Vigna was 7 charged in the District Court of Maryland sitting in Montgomery County with various sex offenses relating to his alleged abuse of A.C. and G.G. In July 2016, the charges were forwarded to the Circuit Court for Montgomery County. The investigation continued, and three more victims came forward. L.D., a young adult, learned about the charges against Vigna through a Facebook group of Cloverly alumni. She then contacted police and reported incidents of sexual abuse by Vigna between August 2001 and June 2002, when Vigna was her fourth-grade teacher.

According to L.D., she and Vigna interacted frequently during her time at Cloverly. L.D. alleged that Vigna would sit her and her friend on his lap, and touch her on her crotch. L.D. described one particular instance of abuse while she was sitting on Vigna’s lap: [H]e 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. According to L.D., Vigna would engage in this touching activity when there was a lot of commotion in the room, as children waited for their buses. L.D. said that other children could not see Vigna touch her because their view was blocked by his desk. Vigna had L.D. kiss him on his cheek during her visits prior to leaving for the school bus.

She also described one instance when she had to change her clothes, and Vigna said she could use the closet in his classroom. They were the only two people in the room at the time, and L.D. remembered feeling uncomfortable as the closet door was left ajar. Two more of Vigna’s former students came forward with similar accounts. A.S., a sixth-grader at the time of the trial, reported that when Vigna was her third-grade teacher, 8 he touched her weekly, or perhaps even more often, in ways that made her uncomfortable.

In particular, A.S. said that Vigna had her sit on his lap at his desk while the rest of the class faced away to watch a video. On multiple occasions, he then touched her genitals, buttocks, and chest area over her clothes. Sometimes he kissed the top of her head and asked her for a kiss on the cheek. According to A.S., Vigna told her that he loved her and that she was beautiful while he held her on his lap.

J.S., who is A.S.’s sister and one year younger, claimed that, when Vigna was her third-grade reading teacher, 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.” In a superseding indictment filed on December 1, 2016, the State added charges related to the alleged sex abuse of L.D., A.S., and J.S. Ultimately, the State proceeded on two counts from the first indictment, which were consolidated with 12 counts contained in the second indictment. The charges included multiple counts of sexual abuse of a minor3 and third-degree sex offense.4 3 “A … person who has … temporary care or custody or responsibility for the supervision of a minor may not cause sexual abuse to the minor.” Md. Code Ann., Crim. Law (“CR”) § 3-602(b)(1) (2012).

With respect to L.D., the indictment charged a violation of Article 27, § 35(C)(b)(1), of the Maryland Code, the predecessor statute to CR § 3- 602(b), which was in effect at the time that Vigna allegedly abused L.D. 4 “A person may not: … engage in sexual contact with another if the victim is under the age of 14 years, and the person performing the sexual contact is at least 4 years older than the victim.” CR § 3-307(a)(3). At the time of Vigna’s alleged abuse of L.D., this offense was codified at Article 27, § 464(A) of the Maryland Code. 9 C. Pretrial Hearing on Character Evidence Prior to trial, Vigna filed a motion in limine seeking a ruling allowing him to introduce pertinent character evidence under Maryland Rule 5-404(a)(2)(A), which provides: “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.” At a pretrial hearing on this motion on June 5, 2017, Vigna’s counsel argued that Vigna should be allowed to introduce character evidence of three pertinent traits: truthfulness, law- abidingness, and appropriate interaction with children in his custody or care. The State did not challenge Vigna’s ability to introduce evidence as to his character for truthfulness and law-abidingness.

However, the State objected to the admission of character evidence of Vigna’s appropriateness with children in his custody or care. While Vigna acknowledged that it would be improper to have former students specifically testify that Vigna did not abuse them, he argued that he should be allowed to introduce “classic reputation” and/or “classic opinion” evidence concerning his “character for interacting appropriately” with children in his custody or care. The trial court ruled that evidence concerning Vigna’s character for the traits of truthfulness and being law-abiding would be admissible. As for Vigna’s character for appropriateness with children in his custody or care, the court commented that, unlike the traits of honesty, peacefulness, and law-abidingness, which “span across all walks of life and all categories of interaction with people,” the trait proffered by Vigna seemed too “unique and specific and limited … to be considered a character trait.” The court reserved ruling with respect to the admissibility of this third category of character evidence. 10 D. The Trial and Appeal Vigna’s jury trial began on June 6, 2017, in the Circuit Court for Montgomery County, and concluded on June 9, 2017.

The five victims discussed above all testified in the State’s case-in-chief. Each victim described how Vigna touched her buttocks and/or genital area. The State called the social workers who interviewed A.C., G.G., A.S., and J.S., and played for the jury the videos of those interviews. Ms. Grey testified about having seen Vigna with students in his lap a “handful of times.” In addition, over Vigna’s objection, Dr. Brunson testified about the circumstances that led to Vigna’s prior discipline, and the court admitted both the 2008 reprimand and the 2013 reprimand as exhibits.

The court admitted this testimony and the letters of reprimand under Maryland Rule 5-404(b).5 The court found that this evidence was admissible to demonstrate Vigna’s intent, knowledge, and absence of mistake. Vigna testified in his own defense, and denied that he ever touched any of his students for sexual gratification. He claimed that touching a student inappropriately was “simply against the fiber of [him].” He acknowledged that he had often hugged students, had them sit on his lap, and told them that he loved them. He claimed that his teaching style, which included these types of displays of affection, was the result of having grown up in a large Italian family that emphasized physical affection.

He explained that his 5 “Evidence of other crimes, wrongs, or acts … is not admissible to prove the character of a person in order to show action in conformity therewith. Such evidence, however, may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, common scheme or plan, knowledge, identity, or absence of mistake or accident.” Md. Rule 5-404(b). 11 teaching philosophy included treating a class like a family and the students as if they were his own children. Vigna testified that he made an effort to change his teaching style after he was reprimanded in 2013, but that the students continued to “hop on [his] knee” and initiate hugs with him, and that he was not going to push them away. Vigna attributed any contact that a student could have interpreted as sexual to be the result of an accidental touching.

In addition to testifying himself, Vigna called nine witnesses in his defense case. Seven of these were character witnesses. They included Dr. Brunson’s predecessor as the Cloverly principal; fellow Cloverly teachers; parents of former female students in Vigna’s classes; a fellow coach and the athletic director at Paint Branch High School; and Vigna’s 12-year-old niece.6 Prior to these character witnesses testifying, the trial judge took up the question on which he had reserved ruling, i.e., whether appropriate interaction with children is a proper character trait. The court concluded that it is not: I think that the proper character category would be character for … lawfulness or law[-]abiding citizen, something like that.

Because the other one seemed so specific and so – it doesn’t seem like a character trait to me. It seems more like – it seems like it’s too narrow and too specific to be a character trait. So, but I think the more general notion of that request is that Mr. Vigna is generally a law-abiding person or I think that’s more consistent with a character trait, which is what the rule permits. So to that extent, I’ll grant the defendant’s motion to permit character evidence on that character trait. 6 The other two defense witnesses, who were teachers at Cloverly, testified as fact witnesses to circumstances that called into question the accuracy of some of the victims’ testimony. 12 The court also confirmed that the character witnesses would be permitted to testify as to Vigna’s character for truthfulness.

Six of the seven character witnesses testified to their opinion that Vigna possessed a character for being law-abiding. Those character witnesses provided extensive testimony concerning Vigna’s interactions with children in his custody or care in the course of opining as to his law-abidingness. For example, Janet Lopez, the principal of Cloverly from 2004 to 2007, testified that she made unannounced classroom visits and “saw [Vigna] with children every day.” Based on her observations, Ms. Lopez opined that Vigna was law- abiding. Kristen Delikat, a former colleague of Vigna’s at Cloverly for eight years, testified that she worked closely with Vigna when she was a reading specialist.

Ms. Delikat often observed Vigna in his classroom. Ms. Delikat testified that she never saw Vigna touch or put a student in his lap. She, too, opined that Vigna was a law-abiding person. The Paint Branch athletic director, Heather Podesek, testified that she knew Vigna from his work as a bocce coach and his volunteering as a baseball coach, as well as Vigna’s service as the Vice President of the Paint Branch Athletic Association.

Ms. Podesek testified that she would often watch Vigna’s interaction with his players and the student coaches, and saw Vigna’s “positive interactions . . . with his student athletes.” Based on her years of knowledge of, and experience with, Vigna, Ms. Podesek also opined that he was a law-abiding person. Jill Doll, the parent of two girls who had been in Vigna’s fifth-grade classes in the 2006-07 and 2009-10 school years, testified about her interactions with Vigna as a parent 13 volunteer and a substitute teacher. She told the jury that she had seen Vigna interacting with students and trusted him with them, noting that this included trusting him “with the lives of [her] children.” Irena Nalls, whose daughter was in Vigna’s third-grade class in 2014-15, testified that, as a room parent, she often visited Vigna’s classroom. She assisted with and observed various parties in Vigna’s classroom, including parties for Halloween, Valentine’s Day, and the end of the school year.

Ms. Nalls explained that she would stay in the room after these parties to help clean up while the children were still in the classroom before dismissal. Based on her experiences and observations, Ms. Nalls also opined that Vigna was law- abiding. Terry Conrad, a parent whose daughter had been in Vigna’s class and who coached youth sports and high school baseball with Vigna, testified that Vigna was law-abiding and that he trusted Vigna “with [his] life.” Vigna’s 12-year-old niece testified that, after her father died when she was in the third grade, Vigna was like a father to her. She spent time with Vigna and trusted him.

She further testified that she saw Vigna with other children when he was a parent chaperone on her field trips. She provided her opinion that Vigna obeyed the law. The character witnesses also testified to their opinion that Vigna was truthful.7 7 In its rebuttal case, the State called Mr. Cline and recalled Ms. Grey and elicited evidence concerning specific instances of alleged untruthfulness by Vigna, as permitted under Maryland Rule 5-404(a)(2)(A). In addition, in an effort to rebut the character evidence concerning Vigna being law-abiding, the State elicited testimony that Vigna had smoked marijuana several times. 14 The jury found Vigna guilty on nine of the 14 counts with which he was charged.

The circuit court subsequently sentenced Vigna to 80 years in prison, with all but 48 years suspended. The Court of Special Appeals affirmed Vigna’s convictions. Vigna v. State, 241 Md. App. 704 (2019). As pertinent here, the intermediate appellate court held that: (1) in resolving a question of first impression in Maryland, “appropriate interaction with children” is not a pertinent character trait under Rule 5-404(a)(2)(A); and (2) the circuit court’s evidentiary rulings did not deprive Vigna of his right to a fair trial under the Sixth Amendment to the United States Constitution.

On September 24, 2019, Vigna filed a petition for certiorari. On November 6, 2019, we granted Vigna’s petition. 466 Md. 311 (2019). We agreed to review the following questions (which we paraphrase here slightly): I. Did the Court of Special Appeals err by contradicting the majority of other jurisdictions in holding that appropriate interaction with children is not a pertinent character trait under Maryland Rule 5-404(a)(2)(A)?

II

Did the Court of Special Appeals err when it failed to recognize that denying Vigna the ability to introduce relevant character evidence, while at the same time allowing the State to introduce non-criminal “bad acts” character evidence, denied Vigna the right to a fair trial under the Sixth Amendment of the United States Constitution? 15 II Standard of Review Although an evidentiary ruling, including the decision to admit or exclude character evidence, is typically reviewed for abuse of discretion, see, e.g., Devincentz v. State, 460 Md. 518, 539 (2018), in this case the circuit court excluded Vigna’s proffered character evidence based on its determination that appropriate interaction with children in one’s custody or care is “too narrow and too specific to be a character trait” under Rule 5- 404(a)(2)(A). The Court of Special Appeals affirmed the circuit court, framing the question as whether the proffered character evidence was relevant to the specific crimes with which Vigna was charged. See Vigna, 241 Md. App. at 718 . The Court of Special Appeals considered that to be a question of statutory interpretation requiring de novo review.

Id. at 717 . We agree with the Court of Special Appeals that de novo review is appropriate for this question. See Williams v. State, 457 Md. 551, 563 (2018) (contrasting the decision whether a piece of evidence is relevant, which is a legal conclusion reviewed de novo, with the decision to admit relevant evidence, which is reviewed for abuse of discretion). We also review constitutional claims de novo.

See, e.g., State v. Cates, 417 Md. 678, 691 (2011); Schisler v. State, 394 Md. 519, 535 (2006). III Discussion Vigna contends before us that the circuit court improperly excluded the proffered evidence concerning his character for appropriate interaction with children in his custody or care, and that this error was not harmless beyond a reasonable doubt. In addition, Vigna 16 asserts that the circuit court’s evidentiary rulings violated his constitutional rights to due process and a fair trial.8 We hold that appropriateness with children in one’s custody or care may be a “pertinent trait of character” within the meaning of Rule 5-404(a)(2)(A). However, we conclude that any error in the circuit court’s exclusion of such evidence in Vigna’s case was harmless beyond a reasonable doubt.

As for Vigna’s constitutional arguments, Vigna abandoned his Sixth Amendment claim and failed to preserve a due process claim for appellate review. In any event, both constitutional claims lack merit. A. Appropriateness with Children in One’s Custody or Care May Be a Pertinent Character Trait for Purposes of Maryland Rule 5-404(a)(2)(A). 1. Character Evidence under Maryland Rule 5-404(a) Maryland Rule 5-404(a)(1) provides that “evidence of a person’s character or character trait is not admissible to prove that the person acted in accordance with the character or trait on a particular occasion.” However, there are exceptions to this rule.

As pertinent here, a defendant in a criminal case “may offer evidence of [his or her] pertinent trait of character. If the evidence is admitted, the prosecution may offer evidence to rebut it.” Id. § 5-404(a)(2)(A).9 8 In the Court of Special Appeals, Vigna also asserted claims of evidentiary error relating to the admission of the 2008 and 2013 reprimands under Maryland Rule 5-404(b), as well as the admission of A.C.’s statements to Ms. Sobieralski under Maryland Rule 5- 802.1(d), which is a hearsay exception for a “prompt complaint of sexually assaultive behavior to which the declarant was subjected.” The intermediate appellate court rejected these contentions, and Vigna did not seek further review of those questions in this Court. 9 The Rule also contains exceptions that allow: (1) a criminal defendant, in certain circumstances, to offer evidence of an alleged crime victim’s pertinent trait of character, 17 Maryland Rule 5-404 derives from its similarly numbered federal counterpart, Federal Rule of Evidence 404. The original Advisory Committee Note to Federal Rule of Evidence 404(a) explained that [c]haracter questions arise in two fundamentally different ways. (1) Character may itself be an element of a crime, claim, or defense.

A situation of this kind is commonly referred to as “character in issue.” Illustrations [include] … the competency of the driver in an action for negligently entrusting a motor vehicle to an incompetent driver. No problem of the general relevancy of character evidence is involved, and the present rule therefore has no provision on the subject. The only question relates to allowable methods of proof, as to which see Rule 405,[10] immediately following. (2) Character evidence is susceptible of being used for the purpose of suggesting an inference that the person acted on the occasion in question consistently with his character.

This use of character is often described as “circumstantial.” Illustrations are: evidence of a violent disposition to prove that the person was the aggressor in an affray, or evidence of honesty in disproof of a charge of theft. This circumstantial use of character evidence raises questions of relevancy as well as questions of allowable methods of proof. We are concerned here with a defendant’s effort to elicit “circumstantial” character evidence. Specifically, Vigna argues that a defendant, who has been accused of sexually abusing a child in his custody or care, should be permitted to introduce evidence of his subject to rebuttal evidence being introduced by the prosecutor, id. § 5-404(a)(2)(B); (2) a prosecutor to offer evidence in a homicide case of an alleged victim’s trait of peacefulness to rebut evidence that the victim was the first aggressor, id. § 5-404(a)(2)(C); and (3) a party in any type of case to offer evidence, under certain circumstances, “of the character of a witness with regard to credibility,” id. § 5-404(a)(3). 10 The Maryland Rules also include a counterpart to Federal Rule of Evidence 405, which governs the methods of proof a proponent of character evidence may use.

As pertinent here, Maryland Rule 5-405 provides: “In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.” 18 character for being appropriate in interactions with children in his custody or care, so that he may then ask the jury to infer from such evidence that it is less likely he committed the charged offense. This Court has not previously considered whether evidence concerning the character of a defendant for appropriateness with children (or similar traits) may be admissible in a criminal case where the defendant is charged with a sex crime against a child. To help inform our resolution of this question, we examine similar cases from other jurisdictions. 2.

Case Law Concerning Character Evidence in Child Sex Abuse Prosecutions The majority of the out-of-state courts that have considered this issue have held that appropriate interaction with children, sexual morality, and other similar formulations of traits relating to sexual disposition, may be pertinent character traits in child sex abuse cases. See State v. Rothwell, 294 P.3d 1137, 1143 (Idaho Ct. App. 2013) (holding that “character traits relating to a defendant’s sexual morality with children are pertinent”); State v. Enakiev, 29 P.3d 1160, 1163 (Or. Ct. App. 2011) (“Evidence of a person’s character with respect to sexual propriety evinces that person’s propensity to act in a sexually proper manner,” and therefore may be admissible as a pertinent trait in a prosecution for a sex crime); State v. Rhodes, 200 P.3d 973, 976 (Ariz. Ct. App. 2008) (holding that defendant’s “sexual normalcy, or appropriateness in interacting with children, is a character trait, and one that pertains to charges of sexual conduct with a child”); State v. Hughes, 841 So. 2d 718, 723 (La. 2003) (per curiam) (in case where defendant was charged with aggravated rape and other offenses involving child molestation, holding that “a defendant may present evidence of his or her reputation in the community as a moral person and for safe and 19 proper treatment of young children”); People v. McAlpin, 812 P.2d 563, 575-76 (Cal. 1991) (holding that character witnesses should have been permitted to testify to opinion that defendant was not “a person given to lewd conduct with children” and that he had a reputation for “normalcy in his sexual tastes,” which included not having “a reputation for being sexually attracted to young girls”); State v. Benoit, 697 A.2d 329, 331 (R.I. 1997) (where defendant was convicted of child molestation sexual assault charges, remanding case to trial court to consider whether proffered character witness had sufficient basis to provide an opinion concerning defendant’s “trustworthiness with children or other pertinent character traits”); State v. Hallman, 379 S.E.2d 115, 117 (S.C. 1989) (trial court erred by excluding character evidence of defendant’s “morality” in prosecution for sexual offenses against a minor); see also Wheeler v. State, 67 S.W.3d 879, 882 (Tex.

Crim. App. 2002) (noting that defendant “was entitled to proffer evidence of his good character (or propensity) for moral and safe relations with small children or young girls”); State v. Griswold, 991 P.2d 657, 663 (Wash. Ct. App. 2000) (in case where defendant was charged with third degree child molestation, stating that “sexual morality is a pertinent character trait”); State v. Miller, 709 P.2d 350, 353-54 (Utah 1985) (where defendant was accused of sexually abusing a child, noting that defendant was permitted to introduce “reputation or opinion testimony to prove good moral character”); McMullin v. State, 486 S.W.3d 818 , 820-21 & n.1 (Ark. Ct. App. 2018) (citing Rothwell for the proposition that “a relevant trait of good character could be proved by reputation or opinion evidence,” which the trial court had allowed the defendant to do; but affirming the trial court’s exclusion of evidence of 20 specific instances of conduct to prove the trait of “sexual morality with respect to minors”) (cleaned up).

A minority of courts, on the other hand, have reasoned that character traits similar to the trait at issue here are not “pertinent” in child sex abuse prosecutions, because sex crimes generally occur in private. Thus, according to these courts, evidence of a defendant’s reputation in the community for appropriate interaction with children, based on public observation, does not make it more likely that the defendant is innocent of a sex crime he is alleged to have committed in private. See State v. Jackson, 730 P.2d 1361, 1364 (Wash. App. Ct. 1986) (“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.”)11; Hendricks v. State, 34 So. 3d 819, 822, 825-26 (Fla. Dist. Ct. App. 2010) (in child molestation case, affirming exclusion of evidence that defendant had an “excellent” reputation for sexual morality; because “a person’s tendency, or lack thereof, to commit acts of child molestation is not something that a community tends to have knowledge of, testimony concerning a person’s reputation for having such a trait is inherently unreliable and distinguishable from traditionally admissible reputation evidence”); State v. Graf, 726 11 In State v. Griswold, cited above, a different Washington intermediate appellate division court disagreed with Jackson. See Griswold, 991 P.2d at 663 .

The Griswold Court suggested that the Washington Supreme Court’s holding concerning a character evidence jury instruction in the post-Jackson case of State v. Thomas, 757 P.2d 512 (1988), indicated that the state’s highest court approved of the type of character evidence Jackson had not allowed. To date, the Washington Supreme Court has not resolved this split in Washington’s intermediate appellate courts. 21 A.2d 1270 , 1274-75 (N.H. 1999) (in sexual assault case involving a minor victim, relying on Jackson to hold that proffered evidence that defendant was “not the type of person to sexually assault or to take advantage of children” was irrelevant and, therefore, properly excluded at trial). In Rothwell, the case upon which Vigna most relies, the Court of Appeals of Idaho considered the majority and minority lines of cases on this question and adopted the majority position, rejecting the argument that the secretive nature of child sexual abuse renders character evidence of sexual morality inadmissible: We conclude the majority rule is correct. 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. The same can be said, however, of many types of criminal activity. 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 conduct of the defendant goes to the weight of character evidence, not its admissibility. 294 P.3d at 1143 .

The Rothwell Court confirmed that a defendant who seeks to introduce such evidence through a witness first must establish that the witness has a sufficient foundation of knowledge to opine or provide reputation evidence about the defendant’s sexual morality with children. Id. at 1143-44 . In addition, the Court noted that a trial court retains the authority to exclude such character evidence under Idaho’s equivalent to 22 Maryland Rule 5-403,12 if the trial court finds that the probative value of the character evidence is substantially outweighed by the danger of, among other things, unfair prejudice, confusing the issues, or misleading the jury. Id. at 1144 . 3.

A Blanket Rule of Exclusion of Character Evidence of Appropriateness with Children in One’s Custody or Care Is Erroneous. Like the Rothwell Court, we adopt the majority position among the courts around the country that have considered this question, and hold that evidence of a defendant’s character for appropriateness with children in his or her custody or care (or a similarly worded trait) may be admissible in a case where the defendant is charged with sexual abuse of a minor or a similar crime against a child. The Court of Special Appeals opted for the minority position, based on its view that such character evidence can never be relevant in a child sex abuse case. See Vigna, 241 Md. App. at 719-24 .

The intermediate appellate court reached this conclusion for two reasons. First, the court accepted the reasoning