18 A.3d 130
Md. Ct. Spec. App.2011Background
- Appellant Kelvin Cousar was convicted by a Charles County jury of unnatural or perverted sexual practices, third degree sexual offense, reckless endangerment, and wearing, carrying, or transporting a handgun.
- Facts center on an April 12, 2009 encounter with Stahl at a Waldorf hotel; Stahl advertised on Craigslist, payment of $200, and appellant allegedly forced sexual acts with a gun present and defecated in Stahl's mouth.
- Detective Austin testified appellant claimed the acts with Stahl were consensual and the defecation was accidental.
- Swanson testified to a February 2009, similar incident with appellant involving a gun and defecation; this was in an unrelated Prince George's County case pending at trial.
- Appellant moved in limine to exclude Swanson’s testimony as improper character evidence, which the circuit court denied after applying the Faulkner three-prong test.
- The court instructed the jury on reckless endangerment as defined by statute; no objection to the instruction was made at trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admission of Swanson testimony | Swanson's testimony is admissible under 5-404(b) absence of mistake to show intent/absence of accident. | Swanson evidence is improper propensity evidence and prejudicial; violates 5-404(b) absent proper exception. | No reversible error; evidence admitted under absence of mistake; proper balancing and limits applied. |
| Reckless endangerment instruction | Instruction accurately stated the substantive element; pattern instruction not required to be identical. | Failure to include all pattern language and elements constitutes plain error. | No plain error; instruction aligned with statute; no omitted vital detail compromising fairness. |
Key Cases Cited
- Wynn v. State, 351 Md. 307, 718 A.2d 588 (Md. 1998) (absence of mistake exception requires defense/assertion of mistake or accident)
- Hurst v. State, 400 Md. 397, 929 A.2d 157 (Md. 2007) (testimony from other victims not automatically admissible when only issue is consent)
- Faulkner, 314 Md. 630, 552 A.2d 896 (Md. 1989) (three-step Faulkner test for admissibility of other-crimes evidence)
- Cross v. State, 282 Md. 468, 386 A.2d 757 (Md. 1978) (context for three-step admissibility and weighing probative value vs prejudice)
- Streater v. State, 352 Md. 800, 724 A.2d 111 (Md. 1999) (scope and need for separate analysis of multiple prior acts admitted as evidence)
- Boyd v. State, 399 Md. 457, 924 A.2d 1112 (Md. 2007) (prerequisites for absence of mistake/prejudice balancing under 5-404(b))
- Green v. State, 119 Md.App. 547, 705 A.2d 133 (Md. 1998) (pattern instructions not mandatory; adapt to case specifics)
- Sydnor v. State, 133 Md.App. 173, 754 A.2d 1064 (Md. 2000) (entitles instruction adjustment when generated by evidence not covered by pattern instructions)
- General v. State, 367 Md. 475, 789 A.2d 102 (Md. 2002) (plain error standard for jury instructions when no objection preserved)
- Robertson v. State, 112 Md.App. 366, 685 A.2d 805 (Md. 1996) (alibi and statement evidence affective instruction considerations)