Woodlin v. State

John Matthew Woodlin v. State of Maryland, No. 22, September Term, 2022. Opinion by Eaves, J. CRIMINAL LAW — MARYLAND REPEAT SEXUAL PREDATOR PREVENTION ACT OF 2018 — STATUTORY INTERPRETATION The Supreme Court of Maryland held that the Maryland Repeat Sexual Predator Prevention Act of 2018, codified under the Courts and Judicial Proceedings Article, § 10-923, does not require a circuit court to consider any particular factor when it determines whether the probative value of the evidence the State seeks to admit outweighs the danger of unfair prejudice under § 10-923(e)(4). Rather, the Court explained that there is an array of factors that a circuit court can consider, and the Court provided a non-exhaustive list of appropriate factors to guide the circuit courts in future cases. CRIMINAL LAW — MARYLAND REPEAT SEXUAL PREDATOR PREVENTION ACT OF 2018 — ADMISSIBILITY OF PROPENSITY EVIDENCE The Supreme Court of Maryland held that the circuit court did not abuse its discretion in determining that the probative value of Petitioner’s 2010 conviction, where Petitioner inserted foreign objects into an unconscious adults male’s rectum, outweighed the danger of unfair prejudice in Petitioner’s current case, where he sexually assaulted his grandson by performing fellatio on him and touching and licking his grandson’s buttocks.

APPELLATE PROCEDURE — WAIVER The Supreme Court of Maryland held that Petitioner failed to preserve for appeal his argument that the circuit court erred in failing to sua sponte limit the scope of the evidence of his 2010 conviction after ruling that said evidence was admissible. Circuit Court for Wicomico County Case No. C-22-CR-19-000613 Argued: April 4, 2023 IN THE SUPREME COURT OF MARYLAND* No. 22 September Term, 2022 JOHN MATTHEW WOODLIN v. STATE OF MARYLAND Fader, C.J., Watts, Hotten, Booth, Biran, Gould, Eaves, JJ. Opinion by Eaves, J. Filed: July 26, 2023 * At the November 8, 2022, general election, the Pursuant to the Maryland Uniform Electronic Legal Materials voters of Maryland ratified a constitutional Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. amendment changing the name of the Court of 2023-10-11 12:47-04:00 Appeals of Maryland to the Supreme Court of Maryland. The name change took effect on December 14, 2022.

Gregory Hilton, Clerk A common law rule in American jurisprudence prohibits a government from using in the criminal prosecution of a defendant “evidence of [that] defendant’s evil character to establish a probability of his [or her] guilt.”1 Such evidence includes the defendant’s “prior trouble with the law, specific criminal acts, or ill name among his [or her] neighbors[.]”2 This rule exists not to give a defendant a leg up in any criminal prosecution, but rather because such evidence likely will “weigh too much with the jury and . . . overpersuade [it so] as to prejudge one with a bad general record[,]” denying the defendant a fair opportunity to defend against crimes alleged by the government.3 Maryland common law generally prohibits the use of character evidence to show a person’s propensity to act in accordance with their character traits or prior bad acts, but sexual assault trials have long been recognized as meriting a partial exception to the bar on propensity evidence.4 This common law exception is limited to evidence of the defendant’s other sexually assaultive conduct that is both similar to the act for which he or she currently is charged and toward the same victim.5 1 Michelson v. United States, 335 U.S. 469, 475 (1948) (footnote omitted). 2 Id. 3 Id. at 476 . 4 See Acuna v. State, 332 Md. 65 , 74–75 (1993); United States v. Castillo, 140 F.3d 874, 881 (6th Cir. 1998). 5 See Vogel v. State, 315 Md. 458, 466 (1989) (establishing the rule that evidence of a defendant’s other sexually assaultive behavior—against the same victim and of the same type—is admissible); State v. Westpoint, 404 Md. 455, 492 (2008); Hurst v. State, 400 Md. 397 , 416–17 (2007) (declining to expand the exception announced in Vogel). Expanding on that common law exception, the General Assembly passed the Maryland Repeat Sexual Predator Prevention Act of 2018, codified under the Courts and Judicial Proceedings Article (“CJP”) (1974, 2020 Repl. Vol.) as § 10-923, to allow the State to move to introduce in a criminal trial for certain sexual offenses evidence of the defendant’s “other sexually assaultive behavior” that occurred either before or after the crime currently charged. Under CJP § 10-923, the State may introduce evidence of prior sexually assaultive behavior involving different victims to help establish credibility in qualifying sexual assault cases.

The statute was enacted in recognition that many sexual assault offenses occur in private and may not generate any physical evidence. 6 The admissibility of evidence under CJP § 10-923 depends on two necessary, sequential events: (1) the State proving at a required hearing four criteria and (2) the circuit court then exercising its discretion in favor of admissibility. John Matthew Woodlin, Petitioner, was arrested and charged with child sexual abuse and other related sexual offenses against his ten-year-old grandson, A.H.7 Before trial, the State timely moved pursuant to CJP § 10-923 to introduce evidence of Petitioner’s 2010 conviction (by way of a guilty plea) for sexual assault against a different individual, and, after the required hearing, the circuit court granted that motion. At trial, consistent with the circuit court’s ruling, the State introduced evidence of Petitioner’s prior 6 S.B. 270, 2018 Reg. Sess., Fisc. & Pol’y Note. 7 Like the intermediate appellate court below, for privacy reasons, we refer to the minor victim by the initials “A.H.,” which reflect neither his given name nor surname.

Woodlin v. State, 254 Md. App. 691 , 696 n.1 (2022). 2 conviction, and he ultimately was convicted by a jury; he noted a timely appeal. The Appellate Court of Maryland8 affirmed the circuit court’s decision to put before the jury evidence of Petitioner’s 2010 offense and affirmed his conviction in this case. Petitioner sought review in this Court, and we granted certiorari, 482 Md. 31 (2022), to answer the following questions, which we have rephrased9: 8 At the November 8, 2022, general election, the voters of Maryland ratified a constitutional amendment changing the name of the Court of Special Appeals of Maryland to the Appellate Court of Maryland. The name change took effect on December 14, 2022. 9 This Court has authority to rephrase the questions presented.

United Parcel Serv. v. Strothers, 482 Md. 198, 205 (2022). The original questions for which we granted certiorari are: 1. As a matter of first impression, under Md. Cts. & Jud. Proc.

Art. §10-923, which permits the admission in certain circumstances of prior sexually assaultive behavior in prosecutions for child sexual offenses, what factors must a trial court consider in determining whether the probative value of that prior sexually assaultive behavior is substantially outweighed by the danger of unfair prejudice, and, specifically, is the similarity or dissimilarity between the two offenses one of those factors? 2. As a matter of first impression, how should [the] trial [court] apply these factors, including the dissimilarity between the two offenses, in determining whether the probative value of the prior sexual assaultive behavior is substantially outweighed by the danger of unfair prejudice, as required by §10-923(e)(4)? 3. As a matter of first impression, if the trial court has determined that the probative value of the prior sexual assaultive behavior is not substantially outweighed by the danger of unfair prejudice, how much of the factual details including the dissimilarities between the past and present offense [may] be admitted at trial before the jury and what factors should be considered in making that determination? 4. Did the trial court abuse its discretion at Petitioner’s trial for sexual abuse and rape of his minor grandson when it admitted evidence of Petitioner’s ten 3 1.

Under CJP § 10-923(e)(4), must a circuit court consider certain specific factors in determining whether the probative value of a defendant’s other sexually assaultive behavior substantially outweighs the danger of unfair prejudice? 2. How should circuit courts weigh any identified factors when conducting an analysis under CJP § 10-923(e)(4)? 3. Did the motions judge abuse his discretion when he determined that the probative value of Petitioner’s 2010 conviction was not substantially outweighed by the danger of unfair prejudice? 4. If the motions judge correctly determined that the probative value of Petitioner’s prior conviction was not substantially outweighed by the danger of unfair prejudice, then was either the motions judge or the trial judge nevertheless required to sua sponte limit the scope of the evidence presented to only certain details of the prior conviction?

For the reasons discussed below, we hold that there is no factor that circuit courts must consider in every case when conducting an analysis under CJP § 10-923(e)(4), and we discuss an illustrative—but not exhaustive—list of appropriate factors that circuit courts may consider. The motions judge in this case did not abuse his discretion when he determined that the probative value of Petitioner’s 2010 conviction was not substantially outweighed by the danger of unfair prejudice. Lastly, Petitioner waived any argument concerning whether the circuit court had a sua sponte duty to limit evidence admitted under CJP § 10-923 because he failed to raise any such argument during any of the circuit court proceedings. Thus, for these reasons detailed below, we affirm the judgment of the Appellate Court. year old sexual abusive behavior on an adult male which was substantially dissimilar from the child abuse for which he was on trial? 4 I BACKGROUND Before addressing the merits of this appeal, we provide an overview of some pertinent evidentiary principles, as well as the facts and procedural history of Petitioner’s case.

A. Admissible Evidence Generally, Historical Exceptions For Prosecution Of Sexual Crimes, And CJP § 10-923 To appreciate how CJP § 10-923 operates in context, we first discuss admissible evidence generally and our State’s treatment of admissible evidence in the prosecution of sexual crimes. 1. Evidence Generally Our rules make clear: relevant evidence is generally admissible; evidence that is not relevant is inadmissible.10 Md. Rule 5-402. Two exceptions to Rule 5-402’s general policy of admission of relevant evidence are Rule 5-404(b), which bars, absent an applicable exception, the introduction of “[e]vidence of other crimes, wrongs, or other acts . . . to prove the character of a person in order to show action in the conformity therewith[,]” otherwise known as “propensity evidence,” and Rule 5-403, which excludes relevant 10 “Relevant evidence” is that which has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Md. Rule 5-401. 5 evidence if its probative value is substantially outweighed by, among other things, the danger of unfair prejudice. The policy consideration underlying Rule 5-404(b) is to avoid tainting the jury into thinking that the defendant is a bad person “who should be punished regardless of his [or her] guilt of the charged crime, or to infer that he [or she] committed the charged crime due to a criminal disposition.” Thompson v. State, 412 Md. 497, 503 (2010) (quoting Acuna v. State, 332 Md. 65, 75 (1993)).

Despite that prohibition, such evidence historically has been admissible to prove things other than a defendant’s general propensity to commit a crime, such as “proof of motive, opportunity, intent, preparation, common scheme or plan, knowledge, identity, [or] absence of mistake or accident[.]”11 Md. Rule 5-404(b); see Merzbacher v. State, 346 Md. 391, 407 (1997) (noting that Rule 5-404(b) “incorporates well recognized exceptions” to the general prohibition of propensity evidence). We do not exclude relevant evidence merely because it is prejudicial, as “[a]ll evidence, by its nature, is prejudicial.” Williams v. State, 457 Md. 551, 572 (2018). Rule 5-403 instead excludes relevant evidence when its unfairly prejudicial nature substantially outweighs its probative value. Under Rule 5-403, unfair prejudice outweighs a piece of relevant evidence’s probative value if it “tends to have some adverse effect . . . beyond 11 Rule 5-404(b) was amended on May 15, 2019 (effective July 1, 2019), to include as an additional exception evidence “in conformity with Rule 5-413.” Rule 5-413, which was adopted on May 15, 2019, became effective on July 1, 2019, and is the counterpart to CJP § 10-923, authorizing the introduction of certain propensity evidence in compliance with that statute. 6 tending to prove the fact or issue that justified its admission.” Montague v. State, 471 Md. 657, 674 (2020) (alteration in original) (quoting State v. Heath, 464 Md. 445, 464 (2019)).

By its plain language, CJP § 10-923 necessarily contemplates the introduction of some propensity evidence against a defendant. But the statute is not a radical departure from Rule 5-404(b)’s underlying policy. Indeed, this is not the first time we have treated propensity evidence differently in the prosecution of sexual offenses.12 2. Common law exception for the prosecution of sexual crimes In 1989, this Court held that in Maryland, there exists a “‘sexual propensity’ exception to the rule excluding evidence of other crimes[.]” Vogel v. State, 315 Md. 458, 462 (1989).

In reaching this holding, the Court noted that the exception “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.” Id. at 466 . The rule announced in Vogel was, therefore, a narrow common-law exception to the general exclusionary rule for propensity evidence. See Thompson, 412 Md. at 503–04 (acknowledging and discussing the rule established in Vogel). Years later, we declined to extend Vogel to admit evidence of similar sexual acts committed against a person other than the victim in the current criminal proceeding.

See Hurst v. State, 400 Md. 397, 415 (2007) (“[T]he State urges that . . . this Court should 12 Likewise, such exceptions for prosecution of sexually based crimes have existed in the federal system for nearly three decades. See Violent Crime Control and Enforcement Act of 1994, Pub. L. No. 103-322, 108 Stat. 1796, 2136–37 (Sept. 13, 1994) (enacting Federal Rules of Evidence 413 and 414, which allow for the admission of some propensity evidence in the prosecution of federal sexual crimes). 7 extend its holding in Vogel . . . and allow evidence of a defendant’s prior rapes and sexual assaults to show such a propensity beyond the limitations we expressed in Vogel. We decline to do so.”).

We clearly stated that if the scope of our rule in Vogel was to be expanded, then such a change would need to come from the General Assembly “or by this Court, sitting in its legislative capacity, exercising its authority to enact Rules of Practice and Procedure and Rules of Evidence[,]” id. at 418, “not by judicial fiat[,]” id. at 417. Since Vogel, this Court reiterated that the exception exists to prove what Rule 5-404(b) generally tries to prohibit: proving that a defendant has a “passion or propensity for illicit sexual relations with the particular person concerned in the crime at trial[.]” Acuna, 332 Md. at 75 (quoting Vogel, 315 Md. at 465 ). 3. CJP § 10-923 Fast forward to 2018. The General Assembly took to heart our words in Hurst and enacted CJP § 10-923.

The statute codifies and expands the narrow exception announced in Vogel, as § 10-923’s application is limited by neither the victim’s identity nor, as we explain below, similarity of the act committed. Under that section, if the State tries a defendant for (1) a sexual crime under Title 3 of the Criminal Law Article (“CR”), (2) sexual abuse of a minor under CR § 3-602, or (3) sexual abuse of a vulnerable adult under CR § 3-604, evidence of the defendant’s other sexually assaultive behavior may be admissible. CJP § 10-923(b). The statute defines “sexually assaultive behavior” as an act that would constitute one of the three crimes immediately noted above, as well as (4) a 8 violation of 18 U.S.C. Chapter 109A13 or (5) a violation of the law of another state, the United States, or a foreign country that is the equivalent of an offense under items (1)–(4).

Id. § 10-923(a). In other words, the statute does not require that the other sexually assaultive behavior yield a conviction. To introduce such evidence, the State must file a motion at least 90 days before trial, describing the evidence that it seeks to introduce. Id. § 10-923(c).

The circuit court then must hold a hearing to determine the evidence’s admissibility. Id. § 10-923(d). After the hearing, the circuit court may admit the evidence only if it determines that the State can satisfy four criteria: (1) the evidence is offered either to (i) prove a lack of consent or (ii) rebut an express or implied allegation that a minor victim fabricated a sexual offense, (2) the defendant had the opportunity to confront and cross-examine the witness or witnesses testifying to the sexually assaultive behavior, (3) the sexually assaultive behavior was proven by clear and convincing evidence at the required hearing, and (4) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice. Id. § 10-923(e).

As the plain language makes clear, before the circuit court can exercise discretion as to admissibility, it must ensure that the State has satisfied four criteria. See id.; see also id. § 10-923(b) (“[E]vidence of other sexually assaultive behavior by the defendant . . . may be admissible, in accordance with this section.” (emphasis added)). Thus, if any one 13 Chapter 109A of Title 18 of the United States Code encompasses various federal sexual crimes and other related provisions. 9 of the criteria in (e)(1)–(4) is not satisfied, then the circuit court has no discretion to exercise, and the evidence is inadmissible. The fourth criterion, codified in subsection (e)(4), imports the same balancing test utilized in Rule 5-403, and determinations under that rule, if challenged, are always reviewed for an abuse of discretion.

See Dejarnette v. State, 478 Md. 148, 175 (2022). Therefore, in analyzing whether the State has satisfied subsection (e)(4), the circuit court must determine—by exercising its discretion—whether the danger of unfair prejudice substantially outweighs the probative value of the evidence the State seeks to introduce. But even if the State can satisfy all four criteria, the evidence is not yet necessarily admissible. Satisfaction of subsections (e)(1)–(4) are conditions precedent to the circuit court exercising discretion whether to admit the evidence; their satisfaction does not automatically trigger admissibility.

See CJP § 10-923(e) (circuit court judges “may admit evidence . . . if the court finds” that the State has satisfied the four criteria (emphasis added)); see also Uthus v. Valley Mill Camp, Inc., 472 Md. 378, 395 (2021) (noting that this Court has a “long history” of interpreting the statutory term “may” as a discretionary term and “shall” as a mandatory term). A plain reading of the statute, thus, shows that when the State seeks to admit evidence under § 10-923, the circuit court, assuming subsections (e)(1)–(3) are satisfied, will always exercise discretion at least once (in determining whether the State can satisfy subsection (e)(4)) and potentially twice (in determining whether to admit the evidence after it finds that the State has satisfied, if indeed 10 it has, subsections (e)(1)–(4)).14 We will revisit this important distinction below. See infra Part III.B. B. Factual Background The weather was rainy and stormy on Friday, September 13, 2019, and because Petitioner then was homeless, his daughter—A.H.’s mother (“Mother”)—permitted Petitioner to stay the night at her home, as she had on prior occasions. At the time, Mother lived with her husband and her three children: A.H., who was ten years old, and A.H.’s two older sisters.

Mother’s bedroom was on the first floor while the children’s bedrooms were on the second floor; A.H. had his own room, and A.H.’s sisters shared a room. Petitioner and Mother agreed that he would sleep on the couch on the first floor.15 The following recitation of events comes from A.H.’s trial testimony. Sometime that evening or early Saturday morning, Petitioner went upstairs to A.H.’s room where A.H. was playing video games. Petitioner sat down on an air mattress on the floor before 14 That is not to say that the circuit court does not exercise its discretion when determining whether the State has satisfied the other criteria in (e)(1)–(3).

At the very least, subsection (e)(3)—determining whether the State has proved by clear and convincing evidence a defendant’s involvement in the other sexually assaultive behavior—also involves, to a degree, the exercise of discretion. See Faulkner v. State, 314 Md. 630, 635 (1989) (“[T]he [second] step is to decide whether the accused’s involvement in the other crimes is established by clear and convincing evidence. We will review this decision to determine whether the evidence was sufficient to support the trial judge’s finding.” (citations omitted)). 15 Although several witnesses testified that Petitioner was supposed to sleep on the couch downstairs, A.H. testified that Petitioner sometimes would sleep on the couch downstairs and sometimes would sleep on an air mattress on the floor in A.H.’s bedroom. A.H. also testified that, on the night in question, there was an air mattress on the floor in his bedroom. 11 he and A.H. began play fighting, which was not an uncommon activity when Petitioner would stay the night.

A.H. was dressed in only his underwear. Petitioner eventually began touching A.H.’s genitals over A.H.’s underwear. A.H. stopped playing with Petitioner, who then pulled down A.H.’s underwear and performed fellatio on A.H. while holding down A.H. by the arm. Petitioner also put two–three fingers “on [A.H.’s] butt” and in his “butt crack,” but Petitioner did not touch A.H.’s anus.

Petitioner also licked A.H.’s “butt crack.” During the entire assault, Petitioner had one hand over A.H.’s mouth and ceased holding down A.H. by the arm only when Petitioner placed his fingers on A.H.’s buttocks. Petitioner’s hand covering A.H.’s mouth prevented A.H. from calling out to Mother for help. Petitioner returned to the air mattress, and A.H. immediately left his room and woke up his eldest sister, who let A.H. sleep in their other sister’s bed, as that sister was not home that evening. The two did not discuss what happened, but A.H.’s sister testified that A.H. looked frightened.

A.H. heard crying and then a door shut. A.H. presumably heard Petitioner leave Mother’s house because Petitioner’s other daughter (“Aunt”) eventually saw Petitioner outside (undetermined where) and brought him back to her house.16 Petitioner called Mother Saturday morning, crying and claiming that A.H. was trying to get him “locked up[.]” Petitioner turned the tables and accused A.H. of sexually assaulting him. Mother immediately hung up the phone. She asked A.H. if anything happened between him and Petitioner, but A.H. would not say, so Mother elicited Aunt’s 16 The record does not reflect that, at this point, Aunt was aware of the assault that had just taken place. 12 help to encourage A.H. to share the details of what occurred the prior night.

A.H. eventually disclosed to Aunt that Petitioner sexually assaulted him. Aunt called Mother and the police and brought A.H. to the hospital where officials performed a rape kit. There was no forensic evidence corroborating Petitioner’s assault on A.H. A few days later, Licensed Clinical Social Worker Mollie Kotis, of the Child Advocacy Center, interviewed A.H., who confirmed that Petitioner sexually assaulted him.17 Detective Sergeant Tom Funk of the Wicomico County Sheriff’s Office was assigned as the lead detective and observed Ms. Kotis’ interview with A.H. After that interview, a different detective located Petitioner, who agreed to speak with Det. Sgt.

Funk at the station. During the interview, Petitioner proffered a different series of events: he admitted going to Mother’s house the night of the incident, but he disclaimed ever going inside. Instead, he maintained that he was there strictly to pick up a bus ticket, which one of his granddaughters hand-delivered to him. He denied seeing or having any contact with his grandchildren in several years.

Petitioner eventually was arrested and charged with child sexual abuse and other sexual offenses. 17 A.H.’s trial testimony slightly varies from his recollection of events during Ms. Kotis’ interview. During the interview, for example, he made the following assertions that differed from his trial testimony: • When Petitioner arrived at A.H.’s room, A.H. was asleep and awoken by Petitioner. • Petitioner digitally penetrated A.H. • Upon entering his sisters’ room, A.H. woke both his sisters and told them that Petitioner assaulted him, and A.H.’s sisters responded by stating that they wanted to kill Petitioner. • A.H. told his mother about the assault after Petitioner left. 13 C. Procedural Background 1. Circuit court proceedings Before trial, the State timely sought to introduce under CJP § 10-923 evidence of Petitioner’s 2010 conviction, by way of a guilty plea, for a third-degree sexual offense. As the basis for that conviction, Petitioner previously admitted that he inserted both a broomstick and a vacuum hose (not simultaneously) into an unconscious male adult’s rectum and photographed the victim while those foreign objects were inside the victim.

At the required hearing under § 10-923(d), the State indicated that both the victim of and eyewitness18 to Petitioner’s 2010 criminal conduct were deceased. Thus, the State intended to introduce a copy of the 2010 guilty plea transcript, which the State provided to Petitioner in advance of the hearing. Petitioner argued that the State could prove only the third requirement under CJP § 10-923(e): that his other sexually assaultive behavior (as a prior conviction) was proven by at least clear and convincing evidence. While Petitioner argued that the State could not satisfy the first two elements—a permissible purpose for the evidence and Petitioner’s prior opportunity to cross examine any witnesses testifying to the other sexually assaultive behavior—the focus of this appeal is on Petitioner’s contention that the State failed to satisfy the fourth criterion: whether the danger of unfair 18 At the hearing, the State characterized this individual as the “witness” to Petitioner’s prior sexually assaultive behavior.

During Petitioner’s 2010 guilty plea for that conduct, however, it was clear that no individual actually witnessed Petitioner sexually assaulting the now-deceased victim. Rather, Petitioner showed the photos documenting his sexual assault of the victim to a third party and told that third party that he (Petitioner) was the one who both perpetrated the depicted assault and took the photographs. 14 prejudice in admitting any evidence of the 2010 conviction substantially outweighed that evidence’s probative value. As to that issue, Petitioner argued at the hearing that presenting such evidence to a jury would be “substantially more prejudicial than [it would be] probative[.]” In his view, the two crimes were not similar enough to be admissible: first, this case concerned a minor victim, and the prior sexual offense was against an adult victim; and second, the prior case involved insertion of foreign objects while this case contained no “weapon[.]” The State argued that Petitioner’s emphasis on dissimilarities between the two acts was misplaced. Preliminarily, the State argued that the plain language of CJP § 10-923 does not require that the two instances of sexually assaultive behavior be similar or in any way connected.

Second, even if the court were looking for similarities between the two instances, the State noted that both victims are male, penetration occurred against both victims,19 and that consent was at issue. The motions judge likewise gleaned an underlying issue of consent in each case: [THE COURT]: I mean, in the adult case, the . . . victim is not awake or is not able to give consent. The defendant sexually assaults the person. In this case, it’s going upstairs into a bedroom where you have a minor victim who is, you know, not able to give consent, is either awake or asleep and woken up.

I mean, does it matter adult versus minor[?] 19 When the State asserted that both cases involved anal penetration, Petitioner’s trial counsel did not contest that characterization. In his brief before this Court, Petitioner argues that the prosecution “erroneously claim[ed] that both cases involved anal/rectal penetration when there was no evidence of such penetration presented by the evidence.” (Emphasis added). That claim, however, is based on the evidence presented at the trial that had not yet occurred at the time of the hearing. At the hearing, the parties were focused on A.H.’s statements during his interview with Ms. Kotis, which did allege digital penetration.

Petitioner’s counsel acknowledged that during oral arguments. 15 * * * [T]he conduct is still sort of sexually assaultive behavior against someone that either didn’t or can’t give consent. The motions judge ruled that the State had satisfied all criteria under § 10-923(e). As to subsection (e)(4), he noted that the issue is not whether any prejudice would ensue from admitting evidence of Petitioner’s conviction, but whether the probative value of admitting that evidence would be outweighed by unfair prejudice. The motions judge believed that “the nature of [the prior] offense . . . is consistent enough with the offense here, and that the probative value is not substantially outweighed by the danger of unfair prejudice.” He then subsequently ruled that evidence of Petitioner’s 2010 conviction was admissible.

Petitioner filed a motion to reconsider, asking the motions judge to revisit his prior ruling under CJP § 10-923 and, to the extent that he was unwilling to change his ruling, “clarify what evidence from the earlier proceeding may be admitted[.]” The court did not rule on that motion via a written order, so Petitioner orally renewed it at an October 2020 pre-trial conference before the motions judge.20 Petitioner reargued only that the State could not satisfy the confrontation requirement under CJP § 10-923(e)(2). The State disclosed that it had located the law enforcement official who previously investigated Petitioner’s 2010 conviction and that it would use that detective’s testimony to bring in the 20 At the pre-trial conference, Petitioner’s counsel stated why he believed “the Court’s construction [of 10-923 was] . . . problematic.” The motions judge asked if counsel was referencing the “motion to reconsider that was filed on August the 24th[.]” Counsel confirmed that he was. 16 previously provided plea transcript. Petitioner then asked the motions judge for guidance on its original ruling: “[W]hat specifically [would] be admitted as opposed to just saying information from the case can be admitted[?]” The State confirmed that it would seek to elicit testimony from the 2010 detective—confined to the information within the four corners of the plea transcript—and introduce the plea transcript previously provided to Petitioner “at the [motions] hearing[,]” as well as a true test copy of Petitioner’s conviction. At that point, the motions judge asked Petitioner’s trial counsel if he had anything further to add, to which he replied, “No. It at least clarifies for me what it is the State’s seeking.

I’ll [re-object] at the appropriate time[.]” The motions judge then denied the motion to reconsider. At trial, the State’s final witness was Corporal Steven Creason of the Queen Anne’s County Office of the Sheriff. Cpl. Creason previously worked for the Ridgely Police Department in Caroline County and was assigned to investigate the circumstances of what came to be Petitioner’s 2010 conviction.

Petitioner objected to the State’s direct examination of Cpl. Creason, at which point a bench conference ensued. The State informed the trial judge of the purpose of Cpl. Creason’s testimony and that the motions judge previously decided this issue.

The State confirmed that it was limiting Cpl. Creason’s testimony to the contents of the 2010 plea transcript. Petitioner raised only a confrontation issue to the trial judge: [N]either [Petitioner] nor I have ever had an opportunity to cross-examine the individual who is the alleged victim in this case. It never happened before.

It didn’t happen here. The alleged victim in that case is deceased. So just advising the Court I’m going to have to just keep saying I object a lot. 17 The trial judge overruled that initial objection and the other ensuing objections throughout the State’s direct examination of Cpl. Creason.

The trial judge also overruled Petitioner’s objections to the admission of the 2010 plea transcript and the true test copy of his conviction. That same day, the jury convicted Petitioner of sexual abuse of a minor and related sexual offenses; he timely noted his appeal. 2. The Appellate Court of Maryland Petitioner asked the Appellate Court one question: did the trial court abuse its discretion in admitting evidence of Petitioner’s prior conviction under CJP § 10-923? The Appellate Court, however, bifurcated and rephrased Petitioner’s question to ask: whether (1) his 2010 conviction was sufficiently similar to the charged offense so as to allow its admission and (2) the evidence used to prove the 2010 conviction was too salacious to be admitted.

The intermediate court found it “necessary to treat the admiss[ibility] . . . of [Petitioner’s] 2010 conviction separately from the admiss[ibility]of the allegedly ‘salacious’ detail[.]” Woodlin v. State, 254 Md. App. 691 , 702 n.8 (2022). As a legal matter, the court determined that it must “first determine what role the similarity or dissimilarity between the offenses plays . . . . Only then, as a factual matter, [could it] determine whether the probative value . . . of [Petitioner’s] 2010 conviction was substantially outweighed by the danger of unfair prejudice.” Id. at 702–03. The court noted that a similarity analysis is a relevant question to admissibility, id. at 704 , but did not clearly answer whether consideration of similarity is required.

The court refused to “engraft[] onto this balancing test a requirement that courts consider a set list of factors, as 18 [Petitioner] urges[,]” id. at 704 n.10, but nevertheless simultaneously stated that courts “must consider whether and how similar the two instances of sexually assaultive behavior actually are[,]” id. at 704 (emphasis added), and that “the question of similarity is necessarily a part of the balancing between probative value and unfairly prejudicial effect[,]” id. at 705 (emphasis added). The Appellate Court ultimately held that the motions judge did not abuse his discretion in weighing the similarity and dissimilarity and admitting the evidence. Id. at 705 . The motions judge, it recognized, focused on lack of consent, an issue that, in the Appellate Court’s view, contained evidence on both sides.

The motions judge’s decision to admit the evidence, therefore, clearly was not an abuse of discretion. Id. at 705–06. For the “salaciousness” component of the inquiry, the court framed Petitioner’s argument as follows: “[E]ven if . . . [Petitioner’s] prior conviction is admissible, [did] the trial court nevertheless abuse[] its discretion by admitting ‘the inflammatory and dissimilar parts of that conviction which were not at all relevant to [the allegation] but were sure to rouse the jury’s hostility[?]’”21 Id. at 706 (second-to-last alteration in original). While it still addressed the merits, the Appellate Court held that Petitioner waived this argument because he was provided the entire plea transcript on at least three separate occasions and 21 The court noted that the transcript contained “four pages of potentially prejudicial details about the 2010 assault[.]” Woodlin, 254 Md. App. at 707 (emphasis added).

These facts included details of the victim’s trauma and statements from Petitioner, the victim, and a witness. Id. at 707–08. 19 never argued to the motions judge or trial judge his concern with the unredacted transcript.22 Id. at 708–12. II STANDARD OF REVIEW The General Assembly imported the same balancing test found in Maryland Rule 5- 403 (probative value versus unfair prejudice) into CJP § 10-923(e)(4). When a trial court’s determination under Rule 5-403 undergoes appellate scrutiny, this Court has stated that such determinations are “discretionary,” and, therefore, are reviewed for abuse of discretion.

Dejarnette, 478 Md. at 175 . Under the abuse-of-discretion standard, we must refrain from reversing a lower court “simply because th[is] . . . [C]ourt would not have made the same ruling.” State v. Matthews, 479 Md. 278, 305 (2022) (second alteration in original) (quoting Devincentz v. State, 460 Md. 518, 550 (2018)). “Rather, the trial court’s decision must be well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable.” Id. (quoting Devincentz, 460 Md. at 550 ). In other words, an abuse of discretion occurs when “no reasonable person would take the view adopted by the circuit court.” Williams, 457 Md. 22 Even if Petitioner had preserved this argument, the intermediate court still would have held that the circuit court did not abuse its discretion.

It would be insufficient, it believed, simply to inform the jury that Petitioner had been convicted of a prior sexual crime; rather, the circuit court was within its discretion to present to the jury all the details surrounding Petitioner’s prior conviction, allowing the jury to determine for itself how similar or dissimilar the two acts were and what—if any—probative value to assign the past conviction. Id. at 712–13. The court was careful not to assign this task solely to either the motions judge or trial judge, noting that a motions judge could give guidance as to what could be admitted, subject to “refinement at trial by the trial judge when confronted by the actual evidence.” Id. at 713 n.16. 20 at 563 (citing Fuentes v. State, 454 Md.