*1 296 ADHD lead caused generally can cause
exposure for Accordingly, we remand specifically. ADHD Stevenson’s damages. trial on the issue of court hold new circuit APPEALS OF COURT OF SPECIAL THE JUDGMENT TO THAT COURT FOR CASE REMANDED REVERSED. THE OF AN ORDER THE JUDG- ENTRY VACATING BALTIMORE CIRCUIT COURT FOR MENT OF THE THE TO THE CIRCUIT CITY AND REMANDING CASE FOR A TRIAL FOR CITY COURT BALTIMORE NEW PAID BY TO BE ON THE OF DAMAGES. COSTS ISSUE RESPONDENT.
164A.3d 265 Miguel A. FUENTES Maryland STATE 64, Sept. Term, No. Maryland. Appeals Court July *5 (Paul Argued by P. Assistant Reyes, Juan Public Defender DeWolfe, MD) Baltimore, B. of Maryland Defender Public brief, on for Petitioner (Brian
Argued by Gary O’Connor, Gen., E. E. Atty. Asst. MD) Frosh, Baltimore, Attorney Maryland General brief, for Respondent Barbera, Adkins,
Argued C.J., Greene, McDonald, before Watts, Hotten, JJ. Getty,
Hotten, J. County George’s A the Circuit for Prince Court jury in *6 Petitioner, Fuentes, of Miguel second-degree the convicted jury acquitted third-degree offense. The sexual rape and second-degree and fourth-degree sexual offense of Fuentes to of twenty years court sentenced The trial Fuentes assault. Correction, of all with but twelve in the Division incarceration all one second-degree rape years, for ten but suspended, and offense, to concurrent- third-degree run sexual suspended, for in unreported of an Special Appeals The affirmed ly. Court 2016, Therеafter, granted we August opinion dated State, 450 for of Fuentes v. Certiorari. Petition Writ Fuentes’ (2016). following the presents A.3d Fuentes for review: our questions support Petition- legally insufficient to
1. the evidence Was contingent on the convictions were er’s where convictions victimj’s individual “mentally status a defective” [the to that she had present failed the evidence State or a men- either mental retardation diagnosed been with tal disorder? victimj’s knowledge purported of [the Petitioner’s
2. Where convic- a deficiency required was both mental element to inform the tions, it error for reversible the State was to closing argument that had admitted jury at Petitioner in advantage capacity” of her “mental diminished taking into at interview that never admitted an trial? victimj’s
3. to the ability [the understand conduct Where others others communicate with was central jury’s whether she could be considered determination individual, court err “mentally defective” did trial refusing present employment allow defense performanсe skills evaluations that assessed both these during the sexual employment activity which is when place? took follow, judgments
For the we reasons shall affirm of Special Appeals. Court AND FACTS LEGAL PROCEEDINGS charges The here stemmed from a incident sexual between R.,1 Fuentes Ms. thirty-eight-year-old woman at time of trial. The incident George’s County occurred Prince in 2012 at a Marriott hotel where both were employed. The alleged State that Ms. R. was deaf and mentally defective as Ann., defined under Md. Code (2002, Criminal Law 2012 Repl. Vol.) (“Crim. Law”) § 3-301 and unable consent to the activity. sexual countered Ms. R. initiated sexual contact and fully understood what transpire. would R.’s testimony
Ms. was elicited through Sign an American Language interpreter, a certified deaf interpreter, and a Span- ish interpreter who for interpreted the deaf interpreter. When previously Marriott, asked whether she was employed at the R, testified, “I work then before and a closet there was *7 I The folding and no. grabbed said table. I’m afraid. Someone me I no.” grabbed her, testified, and said When asked who she Miguel.” “[h]is name is R.Ms. folding testified that she was table, clothes on a putting shelves, them on when Fuentes up came to her put and his hands over her mouth. Ms. R. then else, fell down. When if he asked touched her anywhere she responded in the negative. She that up testified he came “[n]o[,]” her and she said and that he “started,” and she told him She demonstrated with two stop. that indicating dolls up back, came from the grabbed her, opened her zipper, pulled pants, down her and then “touched behind [her] him pushed away.” [she] in Afterwards, pain, Ms. R. went surprised the bathroom and was to see something red2 coming from “the lower of A body[.]” calendar [her] from 2012 evidence, was into admitted and Ms. R. the indicated that transpired events in February 2012. trial,
During R. shrugged prosecutor Ms. when the if asked she in Miguel courtroom, “Miguel” saw she identified but victim, protect privacy To only 1. the sexual will assault we use family the first of her initial and her members’ surnames. testified, urine, Blood, Ms. R. 2. "I'm not sure what it was. water." evidence.3 photograph State introduced into M., mother, at the Marriott a cook. Ms. R.’s worked Ms. disabled, R. as and stated that Ms. Ms. M. characterized Ms. class for high to a school “there is a students R. went where special that it disabilities!;,]” “[t]he and indicated was with in 1998. graduated for from which R. disability!;,]” school Ms. R. cook for Ms. M. herself testified Ms. able herself, talking go Ms. M. had difficulties with work in job R. her. Ms. further testified Ms. maintained her M. at the for fourteen housekeeping department Marriott 2012,4 years. February In and March of Ms. M. noticed half changed. Ms. M. noticed daughter’s her demeanor had crying initially on several occasions. Ms. M. daughter husband, to the death of her Ms. R.’s change attributed By May occurred in 2012. stepfather, February which A gaining weight. she that Ms. R. June blood noticed was pregnant. R. was Ms. M. asked test revealed Ms. When her, [Miguel’s] R. name.”5 who Ms. “wrote impregnated had R., following exchange During 3. oc- direct examination Ms. curred: BY [PROSECUTOR]: Q. R], showing you you look I'm State’s Exhibit 3. Could at it? [Ms. you recognize Do it? M-i-g-u-e-1. A. Q. Miguel, you penis your vagina? person put said his Is this A.Yes. Yes. testified, changed crying, 4. M. in March. She was "[s]he trembling, frightened. she If she was in the kitchen and she was was her, stated, coming jump.” somebody behind she would Ms. M. crying sleep. crying she She *8 was when was awake. was in her "[Ms. R.] work, midnight I When I home at after would find her would arrive Bible, shaking.” her and she be When She was with would awake. "Yes..., testified, February, if she Ms. R. in M at saw Ms. asked midnight, shaking.” crying and through employee her own former 5. Ms. M. knew Fuentes as Marriott M, During employment cross-examination of Ms. as a cook at the hotel. following exchange occurred: BY [DEFENSE COUNSEL]: Q. her, Miguel impregnated you told was the one R.] that [Ms. correct? A. She his wrote name. M. the situation reported Ms. to the Marriott administration the Office of Attorney. the State’s gave daughter November, R. birth to a in 2012. Ms. Vanessa Covert, analyst, a DNA that of paternity testified the results that test indicated there was a 99.9999996% that probability Fuentes was the child’s father. Bland,
Bonnie an employee Humana, organization at an that disabled, Ms. helps through management knew R. case job coaching. Ms. Bland met with Ms. R. monthly and help jobs tried to her in to look develop skills order for and to job. maintain her Ms. many Bland testified that Ms. R. “has so disabilities,” “has limited “not language[,]” and was able express Although English herself.” Ms. R. uses “broken Bland, Bland, signs[ communicate with Ms. Ms. who is ]” deaf, also stated that she is R. able understand Ms. S.R., sister, Ms. R.’s that she communicated testified with through signs siblings developed as children.6 S.R. sister, usually they understood her but would have difficulty communicating with one that another. S.R. stated Ms. R. cannot be left alone the house.
Detective Nicholas Collins of the Prince George’s County Police Department investigator lead the case. He 14, 2012, Ms. R. on of a interviewed June with the assistance language interpreter. He that she sign difficulty testified had understanding to his He further responding questions. that “it took to explain R.] testified about five minutes [Ms. alleged that” man a chair raped have her bent her over and locked door. defense,
In presented testimony his three co- R., from the hotel. workers When asked describe Ms. Hernandez, Marriott, Eleticia a former at stated co-worker job.” R. is girl intelligent. “[a] She knows her 6. When asked on direct examination how S.R. communicates with Ms. R., testified, signs home from the "[i]t’s she that we learned at time say I I we were children. can’t that it’s ASL because it’s not. don’t know phrases signs ASL. Just some other are from we a lot of words. But know.” *9 serious, Hernandez testified that Fuentes
Ms. further was man, Martinez, respectful good and a worker. Roxana another Marriott, for employee of the worked with Fuentes fourteen years thought and worked with Ms. R. that Fuentes also She and Ms. R. were friends. Fuentes and Ms. R. at She observed ate they together. work and noted that often lunch Ms. sign language to commu- Martinez did know but was able through nicate gestures. with Ms. R. She stated Fuentes Fuentes, was an honest and worker. Fuentes’ decent Liliana daughter, Marriott, also an at the employee and testified that R., she was friends with Ms. and she could communicate not knowing sign language. with her Fuentes despite Ms. that Ms. R. [Fuentes] noticed all the time.” “followed] Fuentes, six, fifty-nine-year-old father of worked at the for He for years. Marriott nineteen had Ms. R. four- known years prior working teen the incident. Once she started they time, each other housekеeping, would see “all the because [they] same had use the elevator.” Fuentes admitted having R., sexual contact with Ms. but claimed it consen- was by sual initiated Ms. R. He further that she and testified had him inappropriately touched before and that he had informed mother He testified that on date in behavior. on question, he encountered R. the third floor and then accompanied her to a closet on the floor. fourth He further she the closet motion to him opened testified that amade go inside, Fuentes, he complied. According they then engaged consensual sexual intercourse. judgment for a acquittal
Fuentes moved at the close case-in-chief, the State’s his motion at the renewed close of all Both motions trial court. evidence. were denied
DISCUSSION argues first that the legally Fuentes insuffi- cient his contingent because convictions were Ms. R.’s a mentally individual and the State failed to status defective diagnosed establish she had been with either mental retardation or a mental disorder. argues that on this record, find, no juror beyond rational could a reasonable *10 doubt, mentally that Ms. R. was either retarded or suffered from a mental disorder.
The State counters that plain language legislative the history § of Maryland Crim. Law 3-301 law, case do support statutory Fuentes’ Furthermore, construction. the argues incorrectly points State to in definitions other Code, titles the Maryland there statutory because is language limits the of those scope definitions to their title, particular statutory language incorporating without those in definitions the Criminal Article. Law The State contends in jurisdictions courts other have held expert evi- dence is not to required that a establish victim lacked the mental to to consent sexual capacity acts. the Lastly, State testimony, jury’s avers that and the lay observation the victim during testimony, was sufficient to demonstrate that she had mental disorder. determining
In whether the legally evidence is suffi cient, we examine the solely record to determine whether “any ratiоnal trier of fact found could have the essential a reasonable doubt.” McKenzie beyond elements the crime State, v. (2008) 120, 136, 998, 962 (citing 407 Md. A.2d 1007 Virginia, Jackson v. 307, 315-16, 2781, 443 U.S. 99 S.Ct. 2786- 87, (1979)). 61 560, examining record, In the L.Ed.2d 571 we evidence, the including view State’s all reasonable inferences therefrom, light be drawn in the most favorable Rendelman, State. State v. 513-14, 500, 546, 404 Md. 947 A.2d (2008) State, (citing Harrison v. 477, 487-88, 553 382 Md. 855 Suddith, v. 1220, 1226(2004)); State 425, 429-31, A.2d Md. 379 (2004) Smith, 716, 842 A.2d State (citing 718-19 Md. 374 527, 533-34, (2003)). 664, doing, 823 A.2d 668 In so is not “[i]t State, the case.” Smith v. 174, 185, our role 415 retry (2010). 986, 999 Rather, A.2d 992 the fact-finder “[b]ecause possesses unique opportunity the evidence and to view credibility observe first-hand the demeanor and to assess during re-weigh witnesses their do not testimony, live we 308 any attempt of witnesses or conflicts credibility resolve 594, 608, (citing Tarray v. 410 Md.
in the evidence.” Id. (2009)). 729, any defer to reasonable possible 979 A.2d We have drawn from the jury could admitted inferences jury not decide whether the could have need evidence, inferences from refused to draw other drawn fhe different infer inferences, or whether we would have drawn Smith, 557, at evidence. 374 Md. 823 A.2d ences at Albrecht, 682; see State v. 336 Md. A.2d аlso (“[I]t (1994) duty not the function or appellate amount court to a review of the record that would undertake case.”). to, essence, a retrial of the § Second-degree rape is defined Crim. Law 3- 304(a), provides part: which relevant
Prohibited *11 (a) with person engage vaginal A in intercourse may another:
(1) force, force, or the threat of without the consent other; the defective[7]
(2) individual, if a mentally the is a victim individual, mentally physically helpless or a incapacitated individual, the act knows or person performing and the reasonably mentally know that victim is a defec should individual, individual, or a mentally incapacitated a tive individual!).] helpless physically
n [**] Penalty (c)(1) (2) subsection, in of this Except provided paragraph (a) guilty a of this person who violates subsection section is in on conviction felony rape degree the second subject years. is for not imprisonment exceeding Crim.
Third-degree proscribed by sexual offense is § Law 3-307: 1, 2016, relating
7. to certain Effective October сriminal statutes offenses, here, including changed those at issue references from sexual "mentally "substantially impaired.” cognitively the term defective” to disability.” changed “mental The term retardation” was "intellectual
Prohibited (a) person A not: may
(1)(i) engage in sexual contact with another without other; consent of the
(ii) employ 1. or a display dangerous or a weapon, physical object that reasonably the victim dangerous believes is a weapon; suffocate, strangle,
2. disfigure, or inflict serious physical injury the victim or in of committing another the course crime; threaten, or place fear, victim, 3. in victim that the or an victim, individual known imminently subject will be death, suffocation, strangulation, disfigurement, serious physical or or injury, kidnapping; another; 4. commit the crime while aided and abetted by (2) engage sexual contact with another if the victim is a mentally individual, defective a mentally incapacitated indi- vidual, individual, or a physically helpless person and the reasonably the act or performing knows should know the individual, is mentally mentally incapaci- victim a defective individual, tated or physically helpless individual!:.]
n [*] [*] Penalty (b) A person guilty felony who violates this section is of the of sexual and on conviction degree offense the third subject imprisonment exceeding years. in- second-degree rape third-degree
When
sexual offense
*12
volving
incompetent
charged pursuant
a
is
to
legally
victim
3—304(a)(2) 3-307(a)(2),
§§
or
“lack of
Crim. Law
consent does
by showing
not have to be
either
independently
established
or
automatically
resistance
fear of
is
resistance but
estab-
status of the victim.” See
lished,
law,
a matter of
Travis v.
410, 428-29,
218 Md.
98 A.3d
291-92
App.
(2014).
§§
The three classes of individuals
Crim. Law
3—
304(a)(2)
individuals,
3-307(a)(2)—mentally
and
men-
defective
tally incapacitated individuals,
helpless individ-
physically
and
incapable
consenting!!,]”
thus,
uals—“are
State is
“[t]he
already
it
having
directly
from
what
has
prove
relieved
to
A,3d
proved indirectly.” Id.
at
292. Lack
consent
at
it
not
proved
directly
have
be
because
“does
it is
in the
condi-
only
implicit
victim’s
required but
because
tion.” Id.
at
Lastly, vidúale:]” general
In (a) meanings following In have the this words subtitle indicated.
Mentally defective individual (b) an means who “Mentally defective individual” individual disorder, either or mental suffers mental retardation a or permanently renders individual temporarily which of: substantially incapable conduct;
(1) appraising the nature of individual’s (2) act, intercourse, a sexual or sexual resisting vaginal contact; or
(3) vaginal inter- communicating unwillingness submit act, or course, a sexual sexual contact. Crim, second-degree rape
To conviction of under sustain a 3-304(a)(2), § required prove beyond Law the State was (1) vaginal that: had intercourse reasonable doubt Fuentes (2) R.; defective, mentally Ms. Ms. mentally with R. was (3) or or incapacitated, helpless; Fuentes physically knew reasonably mentally R. should have known Ms. was defective, or To mentally incapacitated, physically helpless. third-degree of the sustain a conviction crime of sexual offense 3-307(a)(2), § required Crim. Law the State under (1) prove beyond engaged reasonable doubt that: Fuentes (2) R.; defеctive, mentally sexual contact with Ms. Ms. R. was (3) or mentally incapacitated, helpless; Fuentes physically or reasonably should have known that Ms. R. was knew defective, mentally mentally incapacitated, physically help- less. dispute engaged
There is no contact in sexual Here, vaginal with R. and had with her. we intercourse
311 must determine whether the evidence prove was sufficient that R. mentally and, Ms. was a individual, so, defective if whether knew or reasonably Fuentes should have known that she a mentally defective individual.8
Fuentes argues that “[b]oth ‘mental retardation’ and ‘mental disorder’ are medical diagnoses made medical professionals on specific based and established scientific evidence after thorough rigorous examination of the patient.” According- argues he ly, that without medical evidence that Ms. R. was diagnosed mental or disorder, with a mental retardation could not jury that mentally find R. was We defective. disagree. recognizes that the term “mental not disorder” is § 3-301, Crim. adopt
defined asks this Court to Law but the definition in the contained Health—General Article and/or the Criminal Maryland Procedure Article of the Code. The however, have, Assembly, General could but adopt did definition of the term as defined in the Health—General Criminal Procedure Articles.
The Assembly General knows how to explicitly incorporate titles, definitions other here. See yet do so did Holmes v. 362 2 739 n. n. A.2d (2000) (stating Legislature that “when the to permit chooses home detention of it probation, as condition knows how do so.”). The Law Article examples explicit Criminal contains incorporation of articles, definitions from other including statutes, Health—General.9 There are six in three different articles, explicitly incorporate that the definition “mental jury’s acquittal second-degree 8. Fuentes contends assault fourth-degree charges "clearly sexual offense indicates his jury’s based conviction was on the determination R.Ms. was a ” 'mentally agree defective We with our individual.’ brethren Special jury’s Appeals appears support Court verdict interpretation, second-degree Fuentes’ necessarily would assault be a second-degree rape by lesser included force or offense threat of force. See, 2-103(a) ("For e.g., § purposes prosecution 9. Crim. of a Law under title, meaning § this stated in 20-209 of the ‘viable’ has the Health— §in of the Arti contained 10-101 Health—General
disorder” *14 a Article has For the Correctional example, cle. Services in facility for treatment a state regarding expenses provision managing responsi “A or official is not provides: county that to an or treatment rendered payment for for services ble to a for facility result of State individu inmate as a admission 10-101(i) § by in als have mental disorders as who of defined Ann., Correctional Article.” Md. Code Health—General added). Family § Law Article (emphasis 11-204 The Services “ ‘Disability’ same incorporates definition: explicitly disorder, § as in 10-101 ... mental means: defined of ” ..,. Ann., Law Family Md. Code Health—General Article added). 5—101(f)(3) Article ex Safеty § The (emphasis Public in definition four different statutes.10 plicitly incorporates that One both definitions cited explicitly incorporates statute “ clinic, a facility’ any place providing ‘Mental means Fuentes: (“a Article.”); 4-201(d)(4) County Montgomery § General Law Crim. investigator § explosive in of the Criminal as defined 2-208.1 fire ]”); 8-508(f)(1)(iii) (“a private § Law health Procedure Crim. Article! carrier, organization, managed health care or insurance maintenance Article[]”); § ganization 15-101 of as defined in the Health—General ("a 10-204(a)(2)(i)(1.) facility § § 10-101 of Law as defined in Crim. ]”). the Health—General Article! Ann., 5—118(b)(3)(vii)(in Safety provision § Code Public a Md. application regarding application provides a firearm must applicant include a that the "does not suffer from a mental statement 10—101(i)(2) §in of the Health'—General Article disorder as defined Ann., 5—133(b)(6)("a Safety person may § Public not ..Md. Code person possess regulated if suffers from a mental a firearm the .... 10—101(i)(2) §in of the Health—General Article disorder defined as ...”); Ann., 5—134(b)(8)("A § Safety or other Md. Code Public dealer sell, rent, person may regulated purchas- a or transfer a firearm to er, lessee, person who the dealer or knows or has or transferee other ... reasonable cause to believe suffers from a mental as disorder ....”); 10—101(i)(2) § Article defined in of Health—General Md. Ann,, 5—205(b)(“A Safety may person possess § rifle Code Public a (6) shotgun person: disorder as or if ... suffers from a mental ....”); 10—101(i)(2) §in Health—General Article see also defined ("At Ann., Proceedings § Code Courts & Judicial 3-8A-17.7 incompe- competency hearing, determines that the child is if the court unlikely proceed, competency in the to attain foreseeable tent future, disorder, §in mental defined 10-620 of the Health— has a as ”). General Article .... hospital, day or progranas, public residential other or private, other than a veterans’ hospital, which to or purports does provide persons treatment for suffering mental disor- 10-101(i) § ders the Health—General Article defined § 3-101(g) the Criminal Procedure Article ....” Md. 13-101(m) added). Ann., § Estates Code. & Trusts (emphasis addition, In another subtitle Artiсle Health—General disorder,” has a definition of “mental that is unlike those cited by Fuentes:
(e)(1) “Mental disorder” means the behavioral or other symptoms indicate:
(1) To lay petitioner an submitting emergency who is petition, a clear disturbance the mental functioning individual; another
(ii) To the following professionals doing health an examina- tion, at least one mental disorder that is described the of the Psychiatric version American “Diagnos- Association’s tic and Statistical that Manual—Mental Disorders” is cur- rent at the time of the examination:
[***] (2) “Mental disorder” not disability. does include intellectual Ann., § Md. Code 10-620. In enacting Health—General Crim. 3-301, § Law the not Assembly General did the adopt defini- tion of the term “mental disorder” as set forth the Health— or Criminal Therefore, reject General Procedure Articles. we suggestion Fuentes’ that or import we the definition from one of those both articles. jurisdictions from other to conclu
Cases have also come the expert evidence is not to that a required sion establish victim the capacity lacked mental to consent to acts. sexual Hunt, (2012) 484, 432, See State v. 365 N.C. 722 S.E.2d 492 (concluding in that to required the State was case use testimony to expert establish extent of the victim’s mental acts); Collins, to consent to 7 capacity sexual see also State v. 187, 202, (1998); Neb.App. 583 350-51 v. N.W.2d Jackson (Alaska 1995); App. 890 P.2d 589-90 Ct. State Summers, 424, 428-29, 955-56 Wash.App. P.2d (1993). a is not diagnosis hold that of medical
We evidence that a required mentally establish victim is defective as 3-301(b). hand, § The by Crim. statutes at Crim. defined Law 3-307(a)(2), 3—301(b),3-304(a)(2), §§ protect a class Law individuals, requirement of of vulnerable medical protection. conform evidence with statutes’ would this, Thus, in cases a must determine such as court whether question the evidence was of whether sufficient no capable Here, although medical victim was consent. or expert testimony presented establish that was defect, jury suffered from mental was able Ms. R. Further, capacity. observe R. and assess her mental Ms. jury following support finding heard the testimony its mentally by § Ms. R. Crim. 8- was defective defined Lаw 301(b):
1) not able to togo Ms. R.’s mother that Ms. R. is testified
work, cook, go to the store herself. 2) R. a high mother school Ms. R.’s said Ms. went where is a for indi-
“there class students disabilities” and with cated that it school for special “[t]he disability.” 3) Bland, manager/job Bonnie “case who coach[ ]” worked Humana,
with organization Ms. R. at “helps an disabilities!;,]” people management “case providing with job regarding for the coachingf,]” testified State *16 R.’s capabilities.
4) “[bjecause Ms. that has so many [Ms. Bland testified R.]
disabilities, language. she limited She’s able to has express herself.”
5) that “she’s R.’s sister testified been Ms. never herself. always somebody
There’s at home when been she’s there.”
6) “repeats that R. R.’s sister said sometimes Ms. what Ms. just
I If just shadowing have she’s communicated.... I her, what m to saying way then no to there s communi- cate point.” because we can’t advance that 7) R.’sMs. sister testified that the take victim “couldn’t care
of herself for a day[ whole never to ]” “would be able take care of herself. to that to try We never tried do find out.” addition,
In the jury able to was observe Ms. R.’s demeanor when she testified draw inferences relative to her limited ability communicate. agree with the Special We Court Appeals jury that the was able infer reasonably that Ms. R. suffered from a mental defect which her incapable rendered consenting to sexual intercourse and sexual contact under 3-304(a)(2) 3-307(a)(2).11 §§ Crim. Law Further, jury reasonably could have inferred that Fuentes or reason knew ably should deficits, known have mental their given fourteen-year relationship work and the testimony presented at trial regarding relationship. Thus, their the evidence was prove sufficient to the crimes of second-degree rape and third- degree sexual offense. argues
Fuentes next that the trial court erred allowing the to inform jury State during closing rebuttal argument that Fuentes had to taking advantage admitted Ms. R.’s “mental capacity” diminished an interview was never admitted at The prosecutor’s argument trial. referred Fuentes’ Marriott personnel interview with security June prosecutor The 2012. cross-examined Fuentes regarding that interview:
Q. Okay. you working And realized with her that she has capacity, diminished correct? R, suggests
11. Fuentes the fact communicated “her act, unwillingness physically to submit to the and that she sexual .., brings any 'mentally resisted of her act[ ] determination as a agree question[.]” defective We individual’ into serious with the State all, jury testimony, part, able believe or none of including testimony. the victim’s *17 she hear. talk and could A. she wouldn’t Because comprehen- that she issues with But also knew had Q. you sion, correct? Honor. Objection, Your COUNSEL]:
[DEFENSE Approach THE COURT: bench. and the follow-
(Whereupon, approached counsel bench ensued.) ing no COUNSEL]: There’s been
[DEFENSE anybody no testimony provided about—there’s been case; there overriding else issue this that’s been testimony expert regarding no expert is witness for that matter. I incapacity, capacity mental victim’s are questions being my think the are asked client impact have on the highly prejudicial and could objection. jury, my that was the basis for your THE I think some form of question COURT: If I hear more question appro- another that’s aрpropriate. I’ll priate, overrule. you, Thank Your Honor.
[DEFENSE COUNSEL]: (Whereupon, pro- counsel returned the trial tables and court.) in open ceedings resumed BY [PROSECUTOR]: things
Q. you training her, you go were When had over once, more than correct?
A. Yes. do,
Q. they things And were she had to correct? basic A. Yes. understand, lot things there she didn’t
Q. And correct? Objection. COUNSEL]:
[DEFENSE THE COURT: Sustained.
BY [PROSECUTOR]: everything—did seem under-
Q. Did she understand she you saying were her? everything stand Objection. COUNSEL]: [DEFENSE THE COURT: Overruled.
BY [PROSECUTOR]: Yes,
A. she did. understood. She Q. everything you say, She understood would correct? A. Not most of everything things. but on Q. And June you by were interviewed Alex Roche from Marriott?
A. Yes. you And him
Q. you acknowledge told and stated that took you advantage considering her mental state [Ms. R.] capacity, and diminished correct?
A. No.
Q. say You did that?
A. No. re-direct,
Upon compris- Fuentes stated that the document his ing security English statement Marriott was written him, it, given notwithstanding the fact that signed he so English he does not was read and did know what written statement, itself, on the marked for document. The written six, identification as was not defense number entered exhibit into evidence.
During closing argument, rebuttal referred prosecutor to this staff on Junе by security interview conducted Marriott 7, 2012 after alleged rape daugh- Ms. M. reported ter: He will [DEFENSE COUNSEL] ...
[PROSECUTOR]: you also have speak believe that defendant doesn’t enough English, and so he was interviewed June when they the Marriott security, 7th he didn’t understand and it, him sign made and so when that he took he said advantage capacity— her mental diminished mental Objection, Your Honor. Can we [DEFENSE COUNSEL]: approach?
THE COURT: Sure.
(Whereupon, the follow- approached counsel the bench and ensued.) ing Honor, Your not in
[DEFENSE COUNSEL]: that’s evi- one, not in evidence, anywhere That’s dence. mentioned question attempted been asked have understanding mental—his her mental regarding his objected to Your sustained the Honor capacity was objection, it, I him He testified—-when asked about
[PROSECUTOR]: him, he he didn’t what was given understand said they made him English, that he understand doesn’t him. sign it. I asked COUNSEL]: Correct.
[DEFENSE only I’m to what saying And [PROSECUTOR]: he said. Not whether statement whether understood actual capacity had mental thought she issues. he *19 That information that was elicit- COUNSEL]: [DEFENSE any understanding part, sort of on his rеgarding ed mental not come was written in the statement anything did that not not—'that asked question into That was was evidence. not he was what client. It asked understood my whether not meant, that information come did because those letters objected it to. was I specifically actually it read asked
[PROSECUTOR]: said, [o]h, said, answered, they then he he he it. from And just They I didn’t said in it. gave it to me. know what was just sign me to it. told it, going I’m I’m going
THE but COURT: overrule they memory on that are own jury rely their instruct of the evidence. you.
[PROSECUTOR]: Thank you. Thank [DEFENSE COUNSEL]: instructions, I jury: “But During jury instructed court you memory. that you your your *20 evidence, admitted into responses to the Fuentes’ relevant questions concerning its in negative. contents were the There- fore, prosecutor’s the argument court, upon the defense objection to her closing, only counsel’s rebuttal that “I’m saying as to the said[,]” what actual statement misplaced. was argues jury
The State could have disbelieved testimony Fuentes’ that he acknowledge not and state did R., staff that he took security advantage given Marriott of Ms. state is, mental capacity. diminished That State jury contends that the could have disbelieved Fuentes’ denial 320 that, from The then claims
that he State made this statement. denial, the could have found that jury of Fuentes’ this disbelief securi- acknowledge did and state Marriott actually of Ms. R.’s mental state and advantage staff that he took ty In while support, State contends that capacity. diminished testimony of is not the same it is well disbelief established for exception to the there is an finding contrary, as evidence “knowledge person legally respon- that makes a scienter—the for of his or her act or consequences omission[.]” sible (10th 2014); SCIENTER, Dictionary ed. see Black’s Law (1952) State, 140, 145, 790, 199 A.2d 792 Hayette Md. 85 v. stating that (recognizing exception “[o]rdi- the scienter thing finding same narily disbelieving is evidence of questions to the But on scienter reason contrary. evidence denying may justify for scienter also disbelieving evidence State, scienter.”); Md.App. 19, 30-31, v. 30 351 finding Marini (1976) (“Generally, disbelieving pro- evidence A.2d 470 however, contrary; to the finding no for evidence vides basis guilty knowledge, scienter or exception involving there is an i.e., disbelieving may provide of a reasons for a denial scienter 10 (quoting for scienter.” finding basis Carter (1970))). 50, 53, App. 267 A.2d inapplicable The scienter the relevant exception because into From an statement was never admitted evidence. eviden- (1) a tiary standpoint, key there is a distinction between (2) of scienter and a defendant’s denial defendant’s denial making allegedly admitted scienter. In statement which Here, latter, the statement contains scienter. never into evidence. the statement was admitted scienter, permit finding may denial scienter While person- denial that he made a statement Marriott Fuentes’ he, alone, finding an in not, permit evidentiary nel does fact, Carter, 10 Md.App. made this statement. See at (“The concerning finding way at rule scienter no A.2d law.”). of criminal aspects proffered affects other Fuentes’ a statement to staff was admission scienter Marriott Thus, argument the prоsecutor’s admitted as evidence. improper.
321
Not every
comment
improper
by
prosecutor
the
reversal,
requires
as
in closing
subject
error
argument is
error
State,
148, 174,
harmless
review. Lee v.
405 Md.
950 A.2d
(2008).
125, 140
State
the
of proving
“[T]he
bears
burden
that
an error is harmless
must prove beyond
a reasonable
that
the
doubt
contested error
did
contribute to the
Moreover,
verdict.” Id.
“an error will be deemed harmless
court,
if ‘a
only
reviewing
its
upon
independent
own
of
review
record,
is
belief,
able
declare a
beyond a reasonable
”
doubt, that
in
way
the error
no
influenced the verdict....’
State,
446,
(2015)
v.
442
Simpson
457,
941,
Md.
112 A.3d
947
(quoting Dorsey
State,
659,
665,
350 A.2d
(1976)).Here, to determine
overruling
objec
“whether
defense
to improper
tions
during closing argument
statements
consti
reversible,
harmless, error,”
or
tutes
we focus
our attention
first,
three factors:
weight
“the
of the
against
accused[;]” second,
remarks,
severity
“the
cumulative
third,
ly[;]” and
“the measures taken to cure any potential
Id. at
prejudice.”
There is no that engaged sexual contact vaginal intercourse R. with Ms. Fuentes’ unintro- statement, prosecutor improperly duced which the referenced in closing argument, primarily supported a that determination knowledge mentally Fuentes had Ms. R.’s status as a 3-304(a)(2) § defective individual. See Crim. (requiring Law prove beyond the State a reasonable doubt “knows reasonably defendant should know that the victim added)); mentally is a defective (emphasis individual” Crim. 3-307(a)(2) (same); § Law see also Travis v. 218 Md. (2014) 410, 428-29, App. (holding 98 A.3d 291-92 “significant evidentiary there is a when prosecu difference tor out to a prove rape” involving legally incompe sets case victims, automatically tent “lack consent ... estab victim.”). law, as matter of To lished a the status defect, extent Ms. R. had mental the State’s case Fuentes, strong to a determination that at a mini pertaining mum, of it. As reasonably should have known the State asserts, not a this is matter which defendant first meets *22 It briefly alleged
the before the offense. victim sexual that victim for over a undisputed Fuentes worked with the contact that he had decade. Fuentes testified extensive with In that closing argument, argued her. defense counsel at of 15 and together years R. “sat a minimum broke and Ms. together.” bread testimony Fuentes’ contains an
Significantly, ambiguity that of reasonably be construed as an admission his knowl- could cross-examination, edge of R.’s mental defect. On this Ms. exchange occurred:
Q. Okay.
you
working
And
realized
she has
with
capacity, correct?
diminished
A. Because she wouldn’t talk and she could not hear.
Although
may
answer
to more
susceptible
Fuentes’
be
than
interpretation,
deny knowledge
one
his failure to
of Ms. R.’s
of
capacity, together
diminished mental
with the duration
their
relationship, strongly
he knew
working
supports
finding that
of her
reasonably
capacity.
should have known
diminished
any
look at the
Lastly,
potential
we
measures taken
cure
objection,
prejudice. Shortly after Fuentes’
at the close
the
closing argument,
State’s
the trial
instruction
rebuttal
court’s
jurors
the
on
rely
memory”
reminded
their “own
the
Md,
894;
testimony.
Lawson,
601,
See
389
at
at
886 A.2d
159-60,
Spain, 386
at
A.2d at
is
Spain
872
33-34.
instruc-
151,
29,
In Spain,
judge,
tive.
More before deliberations others, instruction, judge gave, among the trial a jury based 3:10, § Criminal Maryland Jury Pattern Instructions argumentative emphasized closing argu- nature ments, explicitly jurors as to instructed relevant Maryland long factors to consider have sub- .... courts juries presumption are able to follow scribed given to them the trial by judge, particularly instructions
323 where the record no act on the jury’s reveals overt part the contrary. 160, at State,
Id. at 34 (citing 551, A.2d Wilson 261 Md. 214, (1971); 276 A.2d 223-24 Md.App. Brooks v. (1991)). 360-61, here, 584 A.2d Similarly, we determine that the instruction judge’s trial ameliorated any prejudice that may have been caused the prosecutor’s argument. improper circumstances, (1) these particular
Under
given:
the undis-
puted evidence that
R.
Fuentеs and Ms.
engaged in sexual
(2)
vaginal
contact
intercourse,
regarding
(3)
extent that
R
defect,
Ms.
exhibited a mental
the duration
relationship
R.,
between Fuentes
sup-
which
*23
Fuentes,
ports
determination that
at a minimum, reason-
ably
(4)
should
aware of
defect,
have
her mental
been
Fuentes’
to deny knowledge
failure
of her
mental capacity
diminished
(5)
cross-examination,
on
instruction,
and
the trial court’s
prosecutor’s
argument
improper
does
warrant reversal.
Accordingly, we are convinced
a
beyond reasonable doubt that
the error in no way influenced the verdict. Dorsey,
III. Lastly, Fuentes argues that the trial court erred it evidence, when declined to admit into grounds, relevance 300 pages over employment Ms. R.’s from the records Marriott.12 These performance records included evaluations matter, argument 12. Prior to oral in this the Court considered Petition- Seal[,]” er’s “Motion to File Record Extract Under which referenced the denial at trial of the admission Defendant's Exhibit and raised сoncerning public issue complaining an disclosure of the witness' "personal granted financial information” The contained therein. Court Subsequently, the Motion on December 2016. the Court a issued 26, 2017, parties directing Show Cause Order on June show why cause as to the Court should not amend its Order of December extract, except any "personal 2016 to unseal the record to the extent of Upon financial information” contained therein. consideration of the responses parties, received from the its Court amends Order of these records dating 1998. contends back to maintain her finding regarding ability her supported job independently. He duties employment perform claim that records the State’s claims these contradicted from a mental she suffered defect. evidence, sought counsel defense
At the conclusion Marriott, including performance from employee records admit R. The trial the evidence: evaluations Ms. court excluded I Thank Your Honor. you, And [DEFENSE COUNSEL]: Marriott, have one more. This is the records do of the performance There were evaluations work records. I I on notice as well. put victim and certificates. State am inclined to have this marked as Defendant’s Exhibit that into at this time. 7 and move Number object, Honor. The I will Your State [PROSECUTOR]: any hasn’t to review this gotten copy, hasn’t been able might is in it that there some exactly to see what be relevant or to be things might appropriate be just being I’m shown this. quite lengthy there. And it’s Honor, I may, provid- If I COUNSEL]: Your [DEFENSE within timeframe of the appropriate ed notice appropriate fact, were As a matter of these documents available. rules. occasion, I They available to counsel. On one were made actually attorney’s Upper office here drove State’s any from Rockville to view other documents Marlboro *24 case, to right in this had see. may they have been which no statutory There was They were filed within timeframe. to Your objection filed, rules, and within the I submit would I they that are relevant. do have cеrtification. Honor Yes, they what are relevant to? COURT: but THE to of They’re part relevant show COUNSEL]: [DEFENSE sort of doing an issue is that she’s one what’s been made repetitive and it’s all and the violations are menial task work at the years included and the 15—14 that she did extract, 28, except of 2016 to unseal the record to the extent December any "personal information” financial contained therein.
325 Marriott, communicate, she had her to to ability ability her perform job, ability to communicate the issues to perform job, so than she was more self-sufficient much jurors the State would to the argue given the instruction that she’s mentally point defective to the not she’s able perform understand and than of type other robotic behavior. that, Honor, I object
[PROSECUTOR]: And would Your testify because these not I people any way. did don’t they’re object. know what this I basing just on. And would THE COURT: I’m not it. going to allow [DEFENSE Thank Your Honor. If I you, COUNSEL]: just could it for have marked the record.
THE COURT: Sure.
[DEFENSE Thank you. COUNSEL]: THE CLERK: for Defendant’s Exhibit 7 marked Number identification.
“Relevant evidencе” is Md. Rule 5-401 by defined having “evidence any tendency any make the existence of fact that is of consequence to the of determination the action probable more less than it probable would without the be evidence.” 5-402 not provides Md. Rule that is “[e]vidence Moreover, relevant is judges admissible.” do “[t]rial Simms, have discretion admit irrelevant v. evidence.” State 705, 724, (2011). 420 144, 155 Md. 25 A.3d We have stated that of “[t]he determination whether evidence is relevant is law, matter by appellate be reviewed de novo an court.” (2008).13 State, 16, 20, 383, DeLeon v. 962 A.2d emphasize 13. We that a trial court’s threshold determination of wheth- legal er relevant is a conclusion is reviewed de novo. review, Through our de novo we determine that the trial court's exclu- records, grounds, legally sion the work on relevance correct. Here, Special Appeals appropriate Court conflated the standards review, incorrectly reviewed of whether the the determination employment records were relevant under abuse of stan- discretion Compare dard. (2008) DeLeon 407 Md. 962 A.2d ("The determination of evidence is relevant is a matter whether law, court.”) appellate to be reviewed an J.L. de novo *25 326
Here, counsel “what are the trial court [the asked defense argument from considering work relevant to?” After records] relevance, proffered the regarding counsel defense records’ on “I’m not to this going trial allow it.” Based the court stated court excluded exchange, we determine that the trial de novo grounds. Thus, conduct a records relevance we ruling, of trial court’s review the to a determi- employment records irrelevant Ms. R.’s were mental of from defect nation she suffered a whether incapable consenting. agree of legally We with rendered of Ms. R. was question that the able whether State inferential housekeeping several perform various duties “appraising of capable leaps removed whether she was nature, or of of of a the individual’s sexuаl the nature conduct” contact,” or intercourse, act, sexual “resisting sexual vaginal a inter- unwillingness vaginal of “communicating or submit contact,” course, The records act, a sexual sexual would probable legal or less R. have it more that Ms. met made The court’s mentally of trial definition a defective individual. correct. legally exclusion of the records was employment
CONCLUSION above, shall affirm the explained For the reasons we Court diagno- of a Special of hold that medical Appeals. We evidence mentally victim is required sis is not establish that a him or to sexual so as her unable consent defective render prosecutor’s error in the improper acts. determine the We Matthews, 71, 92, Capital Planning, & 368 Md. Md.-Nat‘l Park Inc. v. (2002) ruling judge’s [on 300 C‘[W]hen 792 A.2d trial legal question, admissibility we review the trial evidence] involves novo.") 391, 404-05, ruling court's 346 de with Md. Merzbacher added) ("Once (1997) (emphasis finding 697 A.2d 439 relevan- made, cy generally we reverse court unless been are loath to a trial has specific principlе plainly evidence is rule or inadmissible under a discretion,”) showing law or is a clear of an and J.L. there abuse n, (2002) Matthews, Inc., 18 368 A.2d 300 n. at at instance, weighing probative (noting, for a trial court’s of the value against subject effects is to the more its harmful standard). of discretion abuse deferential *26 closing argument was beyond harmless a reasonable doubt. trial Lastly, excluded, properly court on relevance grounds, 300 pages over employment Ms. R.’s records from the Marriott. OF
JUDGMENTS THE COURT OF SPECIAL AP- ARE PEALS AFFIRMED. BE TO PAID COSTS BY PETI- TIONER. joins
Judge in judgment only. Watts Adkins, Dissenting Opinion by J. I
Because employment believe that Ms. R.’s are records relevant, their error, and exclusion I constitutes reversible respectfully dissent. “any tendency
Evidence
if
is relevant
it has
to make the
existence of
any fact
consequence
is
the determina-
tion of the action
or
probable
probable
more
less
it would
than
added).
be without the evidence.”
5-401 (emphasis
Md. Rule
explained
“when,
We have
that evidence is
through
relevant
proper analysis
reasoning,
and
it is
to a
logically
related
matter
...
properly provable
in the
Snyder
case.”
(2000).
Majority
Ms. records have given testimony by family some of the her members gated was, fact, insight more as to whether she jury records, prof- defective The which “mentally individual.” were defense, ability R.’s “to by the more than Ms. fered address Indeed, reveal perform housekeeping they various duties.” to, to, communicate R. was and even liked with able For one of Ms. R.’s supervisors. example, her coworkers states, developed ways have annual reviews performance “We Another spite inability speak.” of communication in of her “manages get point that she her says [across] evaluation management” “having worked with fellow associates and makes it This easier.” years now[] for several *27 coworkers, that testimony of R.’s supports the Ms. who stated she to communicate them. The records also was able with of speak disability to the extent Ms. R.’s intellectual because into they provide insight “communicat[e] she could whether unwillingness to sexual critical issue to submit” intercourse—a 3-301(b)(3) Vol.), of (1957, § 2012 Repl. this case. Code (“CR”). the Criminal Article Law contain other employment Ms. R.’s records evidence that argument regarding the se- potentially State’s undercuts of intellectual The include verity Ms. R.’s disabilities. records on-the-job quizzes safety which Ms. R. about answered risk questions pathogens minimizing and about bloodborne emergency contain contact and They change fire. also that, to They forms R. at least completed address Ms. show extent, some she is to and write. These records able read certainly probable it less that Ms. tendency have the make “mentally meaning R. was defective individual” within 3-301(b). §CR their especially important—and
The records are exclusion presented the State rather limited evi- prejudicial—because It regarding solely dence Ms. R.’s intellectual relied abilities. on from lay testimony family Ms. R. and her show Ms. R. R.’s mother that her “mentally defective.” Ms. testified disabilities,” to a school for with daughter high went “students work, that she daughter that she took her to perform daily reminded her certain tasks. Ms. R.’s sister R. testified Ms. “couldn’t take care of herself for a whole day.” further that she She testified sometimes had difficulties cоmmunicating testified, Ms. R. Finally, with when R. sign language interpreter difficulty understanding had responses.
In light testimony pertaining this to Ms. R.’s disabilities communicating, excluding and difficulties to the con record, that, I trary was harmless. On this cannot say doubt, beyond a reasonable the exclusion of Ms. employ R.’s ment records did to the guilty against contribute verdict 446, 457, 112 Simpson Fuentes. See 442 Md. A.3d 941 (2015) (“[A]n error if a only will be deemed harmless review court, upon record, its own ing independent review the is belief, doubt, beyond able declare a that the reasonable (citation no way error in influenced the verdict.” internal omitted)). marks quotation Majority’s
The
analysis regarding
harmless error
Fuentes’s
security
troubling.
places
written statement
hotel
is also
It
weight
ques-
Fuentes’s
to the prosecutor’s
undue
answer
tion,
working
realized
with
she has
“[Y]ou
[Ms. R.]
capacity,
responded,
correct?”
“Because
diminished
Majority
talk
not hear.” The
she wouldn’t
and she could
ambiguous,
pro-
then
acknowledges
response
his
but
Maj.
*28
it
a
significance
deny.”
Op.
ceeds
accord
as
“failurе
322-24,
272,
308,
164
280-81.
at
A.3d at
Fuentes’s use
his
explanation
follow-on
could
construed
“because”
be
implicit
an
admission that he knew the victim was of diminish-
may
But
well have meant that he did
capacity.
ed
his answer
not
she was
that she could
intellectually impaired, only
know
ambiguous
or
I
that an
speak.
admittedly
hear
submit
cannot
into
concrete
logically
statement
be transformed
a
deny”
finding
“failure to
that he
“strongly supports
should have known” that Ms. R. was
reasonably
knew
322,
This
Maj.
at
its burden reasonable error in no way influenced verdict. 164 285 A.3d SCHOOL, FREDERICK CHARTER INC. CLASSICAL FREDERICK BOARD OF COUNTY EDUCATION Term, Sept.
No. Appeals Maryland. Court of July August Reconsideration Denied will remind have notes anything if from your memory And evidence differs may rely I lawyers you your must own say, or memory.” contends that the comments prosecutor’s they during closing argument improper because rebuttal were 319 facts referred to evidence аnd he unfair suffered prejudice regulation argument result. “The rests within discretion of sound the trial court.” State, v. Grandison 175, 224, (1995). 341 398, Md. 670 A.2d 421 Generally, “[t]he prosecutor speech liberal freedom of allowed and may make any that is comment warranted or by evidence inferences reasonably State, Whaley drawn therefrom.” v. Md.App. 186 429, (2009) 452, 951, 974 A.2d 964 (quoting Spain State, v. 386 152, (2005)). 145, 25, Md. A.2d 29 Nonetheless, 872 all “not permissible during statements are closing arguments.” Don State, 416 467, 489, (2010). aldson v. 84, Md. 7 A.3d 97 “For instance, may counsel not ‘comment on facts not in or evidence ” ... what he or state she would have proven.’ v. Mitchell State, 368, 381, 989, (2009) 408 Md. 969 A.2d (quoting 997 State, v. 468, 488, 288, Smith Mack 388 Md. 880 299 A.2d (2005)). See, not in Arguing facts is highly e.g., evidence improper. State, 570, (2005) Lawson v. 591, 876, 886 A.2d (prosecutor may arguments make warranted therefrom); inferences Spain reasonable 386 Md. (2005) (“Courts 156, 872 A.2d have consistently improper deemed made during closing argument comments jury that invite the to draw inferences from information trial”). at In rebuttal, admitted the prosecutor stated that, during Fuentes’ June 2012 interview, acknowledged he security Marriott took advantage staff he R.’s diminished mental capacity. alleged This statement was never