Vogel v. State

CHARLES E. ORTH, Jr., Judge, Specially Assigned. Whether a jury in the Circuit Court for Montgomery County found Alfred P. Vogel guilty of criminal conduct turned' on the credibility of a lad 14 years of age concerning an incident which occurred two years before. The jury obviously believed the child. It convicted Vogel of all of the crimes presented to it — child abuse, 1 a sexual offense in the third degree, 2 and battery. 3 Vogel was sentenced to five ⁴⁶¹ years with all but six months suspended on the child abuse conviction and to five years consecutive on the third degree sexual offense conviction, the execution of which was suspended.

The battery conviction was merged into the abuse and sexual offense convictions. 4 Vogel appealed. He claimed that the jury’s consideration of the credibility of the child was improperly influenced by the admission of evidence tending to show that he had engaged in prior acts of sexual misconduct with the child. The Court of Special Appeals saw no error in the admission of the evidence. It affirmed the judgment entered on the conviction of child abuse and merged therein the conviction for a sexual offense in the third degree.

Vogel v. State, 76 Md.App. 56, 70 , 543 A.2d 398 (1988). The Court of Special Appeals explained its conclusion. Testimony as to a single sexual incident, occurring out of the blue ... might well have struck the jury as unbelievably incongruous, particularly if it followed two years of apparently meticulously proper behavior on the part of the appellant. One of the recognized exceptions to the “other crimes” exclusionary rule is where the evidence shows a passion or propensity for illicit sexual relations with the particular person who is the victim of the charged offense. ⁴⁶² Vogel v. State, 76 Md.App. at 68 , 543 A.2d 398 .

Vogel was not satisfied and looked to us for help. We ordered that a writ of certiorari be issued. 5 We are presented with one question: Does there exist in Maryland a “sexual propensity” exception to the rule excluding evidence of other crimes and if so, did the trial court err in permitting the victim to testify to uncharged sexual offenses which were never established by clear and convincing evidence? I Because the child’s father had become too ill with cancer to participate in his son’s life, the child’s mother sought the services of the Big Brother Association. There came a time when Vogel acted as the child’s Big Brother.

Vogel visited the child regularly at home both during the week and on weekends. He befriended the entire family and was very supportive when the child’s father died. Over a period of about two years, Vogel and the child, at Vogel’s expense, went on overnight trips — three or four times to the King’s Dominion amusement park, twice to Thurmont, Maryland, for skiing and bike riding, and once to New York City where they went sightseeing and Vogel visited his brother to discuss a family affair. When the child was about 12 years of age, the mother decided to move back to her family home in Milroy, Pennsylvania.

Vogel assisted them by renting a truck on his own and loading it with all of the family’s belongings. The mother and members of the family, except the child, went ahead. Vogel and the child followed the next day in the truck. Shortly before they left, the incident occurred which led to the convictions in this case.

See Vogel v. State, 76 Md.App. at 67-68 , 543 A.2d 398 . The child spent the night after the mother left at the home of his married sister. Vogel picked him up there the ⁴⁶³ next morning. Instead of driving directly to Pennsylvania, Vogel, accompanied by the child, went back to the vacated apartment.

Vogel explained that he had left his jacket there. They entered the apartment by means of a key obtained from the rental agent. The child urged Vogel to leave because “[w]e’re running late.” Vogel responded: “No hurry, we’ve got plenty of time to get up there.” The child replied: “Still, I'd like to go now____” “That's when,” the child said, “he led me into the bathroom — grabbed my arm and like pulled me into the bathroom____” Prior to this testimony, the child testified about what occurred on his overnight trips with Vogel. The first time they went to King’s Dominion, while in their room at “Kings Quarters,” apparently an inn on the grounds, Vogel told the child to take a shower.

The child said that he did not need to take a shower — he had already taken one. Vogel replied: “I don’t care, just go take a shower.” So, I went in and took a shower, put my clothes on in the bathroom and came back out, and he started undressing me. I tried to stop him, but he just held my arms — he just held my one arm down so I couldn’t move it and started taking off my pants and my underwear. In response to questions by the State, the child recounted what happened next: And then he molested me.

He put his mouth on my penis. [He] like went up and down on it. [It lasted about] five minutes. The child said that Vogel followed this course of action on all of the overnight trips. Without any variation in the pattern, Vogel, on each trip, undressed the child, placed his mouth on the child's penis, and “went up and down.” This pattern of sexual abuse was even followed on one occasion in Vogel’s home. Vogel took the child to meet Vogel’s wife and young daughter.

After the wife and daughter went to ⁴⁶⁴ bed, Vogel, in the basement recreation room, sexually-abused the child in the same manner as he had on other occasions. Vogel’s conduct did not deviate from this pattern on the day he and the child left for Pennsylvania. After Vogel pulled the child into the bathroom of the apartment he started with the same routine as the overnight trips. He started to take my pants off and molest me like the other times on the overnight trips. [Specifically, pjutting his mouth on my penis and going up and down.

When the act was concluded, Vogel “grabbed his jacket and we left____ We started up the road to Pennsylvania.” II The exclusionary rule to which the Court of Special Appeals referred is that evidence of other crimes committed by the defendant is generally inadmissible in a criminal case. State v. Werner, 302 Md. 550, 556 , 489 A.2d 1119 (1985). We put it this way in Ross v. State, 276 Md. 664, 669 , 350 A.2d 680 (1976): The frequently enunciated general rule in this state, followed uniformly elsewhere, is that in a prosecution for a particular crime, evidence which in any manner shows or tends to show that the accused has committed another crime wholly independent of that for which he is on trial, even though it be a crime of the same type, is irrelevant and inadmissible. See Cross v. State, 282 Md. 468, 473 , 386 A.2d 757 (1978); Presley v. State, 224 Md. 550, 558 , 168 A.2d 510 (1961), cert. denied, 368 U.S. 957 , 82 S.Ct. 399 , 7 L.Ed.2d 389 (1962); Weinstein v. State, 146 Md. 80, 88 , 125 A. 889 (1924).

We observed in Cross , [282 Md.] at 473, 386 A.2d 757 , that [a] mere cursory review of the case law ... readily reveals that there are few principles of American criminal ⁴⁶⁵ jurisprudence more universally accepted than the rule that evidence which tends to show that the accused committed another crime independent of that for which he is on trial, even one of the same type, is inadmissible. We found that the law of this State is fully in accord. Id. (citing authorities). “Yet,” we were careful to point out, “as with many firmly established legal principles, there are exceptions which at times appear to swallow the rule.” Id.

One of these exceptions, recognized in all of our cases concerned with the general rule, is “in prosecutions for sexual crimes, when similar offenses have been committed by the same parties prior to the crime alleged.” Berger v. State, 179 Md. 410, 414 , 20 A.2d 146 (1941). “But,” we warned, “this exception does not apply to prior offenses against any other person than the [victim].” Id. So, we pointed out in State v. Werner, 302 Md. at 553 , 489 A.2d 1119 , that in a prosecution of a man for incest with one of his daughters, the State is prohibited from introducing evidence to show that the defendant committed incest with another daughter. But we noted, id. n. 7: On the other hand, in a prosecution for incest, evidence of other acts of “incest between the same parties prior to the offense charged” is admissible____ The quote was from Wentz v. State, 159 Md. 161, 165 , 150 A. 278 (1930) (emphasis added). In Ross we spoke of evidence of prior offenses being admissible “to show [that the accused had] a passion or propensity for illicit sexual relations with the particular person concerned in the crime on trial____” 276 Md. at 670 , 350 A.2d 680 .

We quoted the teaching of Ross with approval in Cross, 282 Md. at 474 , 386 A.2d 757 . It is abundantly clear that this Court has recognized the exception to the rule excluding evidence of prior crimes when (1) the prosecution is for sexual crimes, (2) the prior illicit sexual acts are similar to that for which the accused is on trial, and (3) the same accused and victim are involved. ⁴⁶⁶ Vogel urges that our references to the exception were not pronouncements but dicta unnecessary for the decision in the cases and thus not binding as precedent. See Black’s Law Dictionary at 408 (5th ed. 1979). Perhaps so.

But even if each of our references to the exception over the years were dicta, we cited the exception with apparent approval and never expressed or indicated that we would not favor its application in the proper circumstances. The proper circumstances have arrived. We shall apply the exception. It thereby sheds whatever status it may have had as dicta and joins the case law of Maryland.

The question Vogel presented to us asks first whether there “exist[s] in Maryland a ‘sexual propensity’ exception to the rule excluding evidence of other crimes____” The answer is a qualified “yes.” It is true that in Ross we spoke of a “passion or propensity for illicit sexual relations,” 276 Md. at 670 , 350 A.2d 680 . But, as is clear from our discussion above, we have carefully circumscribed the exception. Our acceptance of the exception is not to be taken as meaning that we adopt a broad “sexual propensity” exception to the general rule. The exception our predecessors recognized and which we apply here does not reach beyond the three requirements we have set out.

It is strictly limited to the prosecution for sexual crimes in which the prior illicit sexual acts are similar to the offense for which the accused is being tried and involve the same victim. On the facts in the case at hand, the exception applies to permit the challenged evidence to be admitted. The prior illicit sexual conduct was comprised of acts of fellatio. The prior acts of fellatio were practiced by Vogel on the child.

The charges against Vogel in the case here were bottomed on an act of fellatio practiced by Vogel on the child. Thus, as the exception requires, there was a concurrence of a prosecution for sexual crimes, prior illicit sexual acts similar to that for which the accused was on trial, and the same accused and the same victim. ⁴⁶⁷ Ill The fact that evidence of prior crimes is within the ambit of an exception to the exclusionary rule does not mean that it is thereby admissible. “[T]he trial judge still possesses discretion as to whether [the. evidence] should be received.” Cross, 282 Md. at 474 , 386 A.2d 757 . We have declared our agreement with those courts which have held that in order to be admissible for the limited purposes enumerated in the appropriate exception, ... evidence [of the collateral offenses] must be clear and convincing to the trial judge. Id. at 478 , 386 A.2d 757 .

The second part of the question presented to us asks whether “the trial court err[ed] in permitting the victim to testify to uncharged sexual offenses which were never established by clear and convincing evidence.” The question presupposes a conclusion. Of course, if the premise of this part of the question were correct — that the prior offenses were not established by clear and convincing evidence — the answer would be “yes.” It is our function, however, to determine whether the trial judge abused his discretion in permitting the challenged evidence to go before the jury. In so doing it is first our duty to ascertain whether the evidence was sufficient in law to be “clear and convincing” to the judge. See State v. Faulkner, 314 Md. 630, 634-635 , 552 A.2d 896 (1989).

We must also, in determining the propriety of the judge’s exercise of discretion, consider whether he carefully weighted] the necessity for and probativeness of the evidence concerning the collateral criminal act against the untoward prejudice which is likely to be the consequence of its admission. Cross, 282 Md. at 474 , 386 A.2d 757 . We noted in Cross v. State, 282 Md. at 478 n. 7, 386 A.2d 757 (citation omitted): The preferred method for submitting any evidence of other crimes to the court during trial would be by way of ⁴⁶⁸ a proffer to the trial judge outside the presence or hearing of the jury. Such a proffer not only protects the jury from immediate prejudice, but also allows the trial judge to determine whether there is any way to limit the prejudicial aspects of the evidence while retaining its probative character arid whether the evidence should properly be introduced at that time.

In the case at hand, defense counsel anticipated that the State would seek to adduce evidence of Vogel’s prior sexual acts with the child. He filed a motion in limine which was heard before trial on memoranda and argument. Defense counsel referred to five exceptions to the exclusionary rule set out in Ross (“one, motive; two, intent; three, absence of mistake; four, common scheme or plan; or five, the identity of the person charged with the commission of a crime”). He argued that none of the exceptions was applicable here, that on balance there “is very little probative value, and there is great prejudice to [Vogel],” and that the judge “should consider the likelihood that these alleged past bad acts, in fact, did occur.” Obviously familiar with the allegations of past acts, defense counsel indicated that there were “some seven” prior acts the State “would have the complaining witness testify to.” He observed that There has been no convictions, first of all, as to any of those other matters.

Secondly, while there were charges regarding two of them, those charges have been dismissed. Third, the complaining witness has, in prior sworn