Wildberger v. State

ROSALYN B. BELL, Judge. Robert Wildberger was convicted at a bench trial in the Circuit Court for Baltimore County of various sexual offenses against his minor daughter. Lisa Wildberger, his wife, was convicted of being an accessory after the fact as to those sexual offenses and also of hindering a police officer. Both noted appeals.

This Court granted their motions to consolidate those appeals for brief and argument. They present these questions: ¹¹⁰ —Was the evidence legally sufficient to identify Robert Thomas Wildberger as the perpetrator of sexual offenses on his daughter? —Was the evidence legally sufficient to convict Lisa Rose Wildberger as accessory after the fact? —Was the evidence legally sufficient to convict Lisa Rose Wildberger of hindering? —Did the court commit reversible error in denying appellants’ motions to suppress evidence secured by search and seizure? APPEAL OF ROBERT WILDBERGER —Sufficiency of the Evidence— Appellant, Robert Wildberger, argues that the evidence was legally insufficient to identify him as the perpetrator of the sexual offenses upon his daughter. The test we apply to review the sufficiency of the evidence to support a conviction is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 319 , 99 S.Ct. 2781, 2789 , 61 L.Ed.2d 560 (1972). In a non-jury trial, due regard will be given to the opportunity of the judge to evaluate the credibility of witnesses, and the judgment will not be set aside unless clearly erroneous. Rule 1086. This appellant questions the evidence relative to the sexual molestation of the child, but our independent review of the evidence convinces us that the trial judge did not err in finding the molestation did in fact take place.

Appellant further contends that even if the evidence may have proved his daughter had been sexually abused, there was no evidence, direct or circumstantial, to show that he committed the offense. We do not agree. The evidence from two separate laboratories established that semen and spermatozoa were found two centimeters deep in the rectal tract of the two-year-old girl. Expert testimony established that the presence of such seminal ¹¹¹ fluid could have occurred recently or any time within 72 hours before the examination.

Appellant contends that he was not the only male who was with the child during the time in question. While not untrue, the statement is misleading. The family visited the maternal grandparents’ home during the day, in part so that Lisa Wildberger could help take care of her father, who was ill. There was testimony that the grandfather, the only other male anywhere near the child during the 72-hour period, was a “very sick man.” There is no evidence that the child was with anyone besides the child’s parents and maternal grandparents during that period of time.

Other than the visits to her grandparents’ house, where the child and her grandfather were never alone, the evidence indicated that the father was the only male near the child during the 72-hour period. Robert Wildberger admitted that, as a result of a hospitalization of his daughter for bronchial spasms the month before the investigation, hospital officials accused appellants of sexually abusing their daughter. Mr. Wildberger said the child often slept in their bed with them, and she had done so the night before the morning arrival of police which led directly to these charges. His wife told him that morning that their daughter was not wearing the panties she had worn to bed.

Wildberger said he believed his daughter must have gotten up to go to the potty and forgotten to put them back on. The officers testified that when Lisa Wildberger was led from the house under arrest, she yelled to her husband, “Bob, don’t let them check her, you know what they’ll find.” The trier of fact is responsible for judging the credibility of witnesses and weighing any conflicts presented by the evidence. Bryant v. State, 49 Md.App. 272, 283-84 , 431 A.2d 714 , cert. denied, 291 Md. 772 (1981), cert. denied, 456 U.S. 949 , 102 S.Ct. 2020 , 72 L.Ed.2d 474 (1982). Circumstantial evidence is sufficient to support a conviction if the circumstances permit rational inferences from which the trier of fact could be convinced beyond a reasonable doubt ¹¹² of the guilt of the accused.

Finke v. State, 56 Md.App. 450, 468 , 468 A.2d 353 (1983), cert. denied, 299 Md. 425 , 474 A.2d 218 , cert. denied, 469 U.S. 1043 , 105 S.Ct. 529 , 83 L.Ed.2d 416 (1984). The court made a finding of fact that the two-year-old child had been the victim of sexual abuse, and that Robert Wildberger did commit that abuse. We hold these findings are not clearly erroneous and they are sufficient to meet the Jackson test. 443 U.S. at 319 , 99 S.Ct. at 2789 . APPEAL OF LISA WILDBERGER —Sufficiency of the Evidence— Lisa Wildberger appeals her conviction as accessory after the fact.

An accessory after the fact is one who, knowing that a felony has been committed, harbors and protects the felon or renders him or her assistance to elude punishment. Cooper v. State, 44 Md.App. 59, 64-65 , 407 A.2d 756 (1979); Robinson v. State, 5 Md.App. 723, 728 , 249 A.2d 504 (1969). Where the alleged principal is tried first, or tried at the same time as the alleged accessory, the accessory may not be convicted of a greater crime than the principal. Jones v. State, 302 Md. 153, 159 , 486 A.2d 184 (1985).

This appellant first contends that if the sexual offense convictions of Robert Wildberger as principal are overturned, the sexual offense convictions of Lisa Wildberger as accessory must be overturned. In view of our conclusions relative to the Robert Wildberger conviction, we will not dwell on this point further. In any event, the evidence, viewed in the light most favorable to the State, was sufficient to support Lisa Wildberger’s convictions as an accessory after the fact to both child sexual abuse and second degree sexual offense. Tichnell v. State, 287 Md. 695, 717 , 415 A.2d 830 (1980).

We explain. A month before the child abuse investigation in this case, Franklin Square Hospital reported that the child had been sexually abused. If she had not known before, Mrs. ¹¹³ Wildberger was then alerted. Mrs. Wildberger explained her daughter’s “reddened upper thighs,” and “symmetrical,” “real dark red discoloration” and “swelling” of her vaginal lips 1 as an allergic irritation to soap used on her training pants.

When asked how the child was clothed during the night before the morning arrival of the police, Mrs. Wildberger said the child had her nightgown on, but nothing else. 2 Mrs. Wildberger denied the officers’ testimony that she had yelled to her husband not to let the police examine the child because of what they might find. She claimed she only told her husband to get her a lawyer. A Baltimore County Department of Social Services representative testified that Lisa Wildberger gave her three different explanations for the presence of semen in the child’s rectal tract. Mrs. Wildberger first said it was only mucous from diarrhea.

When told the finding was the result of a scientific test, she said the child had sat on ejaculate that was on their bed. A few weeks after the trial, Mrs. Wildberger told the caseworker that everyone who testified had lied, and the hospital had made up the finding. Judging credibility of witnesses is one of the functions of the trial court, and it may disbelieve exculpatory statements of an accused. Bird v. State, 231 Md. 432, 436 , 190 A.2d 804 (1963).

Lisa Wildberger’s testimony provided sufficient reason for the court to conclude that she knew about the sexual abuse and was trying to protect her husband. See Robinson v. State, 5 Md.App. 723 , 249 A.2d 504 (1969). The trial judge found that Lisa Wildberger knew her husband had committed a sexual offense on their daughter and attempted to conceal, protect and render him assistance. We cannot conclude on our independent review that the trial judge was clearly erroneous. ¹¹⁴ —Hindering— In order to establish the crime of obstructing or hindering a police officer, the State must prove certain elements beyond a reasonable doubt: 1.

A police officer engaged in the performance of a duty; 2. An act or omission by the accused which obstructs or hinders a police officer in the performance of that duty; 3. Knowledge by the accused of facts comprising element # 1; and 4. Intent to obstruct or hinder the officer by the act or omission constituting element # 2.

Sibiga v. State, 65 Md.App. 69, 80-81 , 499 A.2d 484 (1985). Officer McCaskill testified that, in response to a report of suspected child abuse of the Wildbergers’ nephew, he went to their apartment on the morning of July 24, 1985, and explained to them in detail why he was there. He asked to examine the boy and appellants raised no objections. Upon discovering the marks and bruises on the nephew, McCaskill called his supervisor who subsequently called in a female officer to examine the little girl.

He said that when Mrs. Wildberger became upset about them examining the daughter, she was “directed and advised that if she did not calm down and allow us to look at [her daughter], she would be subject to arrest for interfering.” He said she continued to interfere and tried to stop the female officer, Officer Fisher, from looking at her daughter and was, therefore, placed under arrest. Sergeant Cooper testified that when Officer Fisher attempted to begin examination of her daughter, Mrs. Wildberger moved toward Officer Fisher, saying, “No God-damn cop is going to check my daughter.” Officer Fisher testified that, even after Mrs. Wildberger had been advised that she would be arrested if she interfered, she “became very objectionable,” “started screaming profanities,” and “moved towards me in a very offensive way.” ¹¹⁵ Mrs. Wildberger admitted she had become excited and raised her voice but denied that she moved