Elan OUTMEZGUINE v. STATE of Maryland
No. 112, Sept. Term, 1993
Court of Appeals of Maryland
June 3, 1994
641 A.2d 870
ORDERED, by the Court of Appeals of Maryland, that the petition for reinstatement be, and it is hereby, granted and the Petitioner, George W. McManus, Jr., upon taking in open court and subscribing to the oath of attorneys required by
Pursuant to Rule 11 of the Rules Governing Admission to the Bar of Maryland, the Petitioner shall satisfactorily complete, on either June 3 or June 4, 1994, the course on professionalism given by the Maryland State Bar Association.
641 A.2d 870
Elan OUTMEZGUINE
v.
STATE of Maryland.
No. 112, Sept. Term, 1993.
Court of Appeals of Maryland.
June 3, 1994.
Martha Weisheit, Asst. Public Defender (Stephen E. Harris, Public Defender, both on brief), Baltimore, for petitioner.
George E. Simms, III, Sp. Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., both on brief), Baltimore, for respondent.
Argued before MURPHY, C.J., RODOWSKY, CHASANOW, KARWACKI, BELL and RAKER, JJ., and
MURPHY, Chief Judge.
This case implicates Maryland‘s child pornography laws. More particularly, it involves the indictment of Elan Outmezguine for “unlawfully photograph[ing] Jennifer [H.] (date of birth February 20, 1975), a minor, engaging in sexual conduct” in violation of
“Every person who photographs or films a minor engaging in an obscene act or engaging in sexual conduct as defined in § 416A of this article is subject to the penalty provided in subsection (e) of this section.”
A “minor” is defined in
Outmezguine was convicted by a jury of the offense charged in the indictment; he was sentenced to eight years imprisonment. The judgment was affirmed on appeal. Outmezguine v. State, 97 Md.App. 151, 627 A.2d 541 (1993). We granted Outmezguine‘s certiorari petition to consider whether “scienter [is] an element of the offense of photographing a minor” under
I
Jennifer H. was a troubled youth. She began using alcohol when she was nine years old and drugs when she was 14. In December of 1990, when she was 15 years old and a student at Wootton High School, she was using cocaine and was admittedly sexually promiscuous. Other than these facts, the testimony adduced at trial painted two markedly different pictures of the facts and circumstances giving rise to this case.
According to Outmezguine, he was in the home improvement and cleaning business in 1990. Photography was one of his hobbies and he occasionally took pictures of professional dancers and models for money. In December of 1990, he stated that he was driving to work when he observed Jennifer hitchhiking.2 Outmezguine testified that he stopped to give her a ride and that she accompanied him to his workplace where she assisted with that evening‘s cleaning in return for some money. He dropped her off after work around midnight and Jennifer asked him if she could help out with cleaning jobs in the future. He gave her his business card and pager number and she gave him her phone number.3
Outmezguine said that Jennifer called him approximately two days later and asked if he had any cleaning work for her to do. He needed help so he picked her up the following day for a cleaning job.4 During the day, she asked him whether
According to Outmezguine, the next day R.C. and Jennifer went to Outmezguine‘s house. Outmezguine stated that Jennifer asked him to show R.C. the album that contained the pictures of nude women. After seeing the album, R.C. asked Jennifer to pose for him. Outmezguine gave Jennifer some of his sister‘s lingerie and permitted R.C. to use his camera and equipment to take pictures of Jennifer.5 Outmezguine continually denied taking any pictures of Jennifer.
According to Jennifer, Outmezguine initially called her at home, informed her that he knew Jennifer‘s twin sister, and asked her to pose for some photographs for which she would receive $150. On the telephone, he assured her that she would not have to pose nude. Jennifer agreed, and on December 21, 1990, he picked her up, purchased some wine coolers at a liquor store, and took her to his house, where she consumed some of the wine coolers. He began taking pictures of her in various items of clothing—i.e., underwear, lingerie, and stockings. Jennifer said that Outmezguine supplied some of the clothing while she brought other items with her. One particular piece of clothing which he asked her to wear was a pair of panties, which contained a hole exposing her vagina.
Jennifer testified that Outmezguine instructed her in various poses and took a series of photographs, which she later identified in court. In describing one of the more graphic pictures, she stated that Outmezguine “told [her] to pull back one of [her] vagina lips” and “told [her] to open up [her] vagina.” She returned to pose twice more in January of 1991, one time with a girlfriend, Elizabeth Sandell. Jennifer stated
Jennifer‘s mother expressed concern about Jennifer and the lifestyle she was leading. She noticed that Jennifer was having increasing difficulties from January of 1990 until January of 1991. Her mother observed that Jennifer‘s grades were declining and that she was periodically staying out very late at night, sometimes staying out the entire night. One day, she read Jennifer‘s diary and realized the depth of Jennifer‘s problems. Accordingly, she placed Jennifer in an inpatient treatment program for drug and alcohol abuse.
During a counselling session, Jennifer mentioned the series of events that had occurred with Outmezguine. The counsellor informed the police, who obtained a search warrant for Outmezguine‘s house. During the execution of the warrant, the police discovered cameras, lingerie, and a suitcase that contained, among other things, loose photographs and an album with photographs in it. Jennifer was depicted in many of these photographs and she testified that these were taken by Outmezguine at his home. Many of the other women pictured in the photographs were wearing the same lingerie that Jennifer was wearing in her pictures. In some of the pictures, Jennifer is touching her bare breasts or buttocks. In one picture, she is spreading apart her vagina, which she claimed Outmezguine instructed her to do. Jennifer and her friend, Elizabeth Sandell, age unknown, are depicted in other pictures, which appear to be relatively innocuous when compared to the pictures taken of Jennifer when she was alone. Sandell was not called to testify by either the State or Outmezguine.
During the two day trial in late August of 1992, Outmezguine‘s primary defense was that he was not the person who took the pictures of Jennifer. He also maintained that he never knew Jennifer‘s age. He never stated, however, that he believed Jennifer to be 18 years of age or older. During the State‘s rebuttal, Jennifer stated that she had told Outmezguine her age and that she was a high school student.
At the close of the State‘s case-in-chief, Outmezguine moved for a judgment of acquittal, arguing that a defendant must have knowledge of the minor‘s age to be convicted under
At the end of the case, Outmezguine again moved for a judgment of acquittal, which was denied. Outmezguine submitted four proposed jury instructions, all of which centered on the requirement for and definition of “knowledge.”7 Al-
“In this case the defendant is charged with photographing a minor engaged in sexual conduct. A minor is defined as any person under 18 years of age. Sexual conduct means human masturbation, sexual intercourse or any touching of or contact with the genitals, pubic areas or buttocks of a human male or female or the breasts of the female whether alone or between members of the same or opposite sex or between human[s] and animals.”
During deliberations, the jury sent a note to the judge, inquiring whether under
“There was a note that was delivered and the Court answered the note. Both answers were no in regards to whether the defendant need know about the child, whether the child be 18, and did he need to know. As I indicated, I thought that both answers should be answered yes. [The State] thought no. Your Honor said no. I take exception to that note, okay, the answers to the note.”
Acting upon these instructions, the jury convicted Outmezguine of photographing a minor engaging in sexual conduct
In affirming Outmezguine‘s conviction, the intermediate appellate court said that the issue before it was “whether, to convict appellant under § 419A(c), the State must prove that he had knowledge that Jennifer was under 18 when the photographs were taken.” Outmezguine, supra, 97 Md.App. at 156, 627 A.2d 541. It first noted that
The court traced the history of Maryland‘s child pornography statute from its enactment in 1978 to its current form today. As of 1978, it was a crime under
The court then discussed a number of amendments enacted over the years and focused in particular on the last significant
“Although an inference could perhaps be drawn from [the 1989 amendment] that the Legislature intended for mistake as to the victim‘s age to be an affirmative defense, no fair inference could be drawn that it intended knowledge of the victim‘s age to be an element of the offense.”
The court then concluded that, in light of the legislative history and the plain language of the statute, “the Legislature did not intend to make knowledge as to the age of the child an element of the offense, to be affirmatively proved by the State.” Id. It observed that if the Legislature intended knowledge to be an element of the offense under
Therefore, the court held that the circuit court‘s denial of Outmezguine‘s proposed jury instructions and its response to the jury‘s note were not in error. The court declined to consider whether mistake of age can be offered as an affirmative defense because Outmezguine failed to raise the issue at trial. Specifically, the court said: “although [Outmezguine] claimed that he did not know that Jennifer was 15, he offered no evidence as to what he thought her age was at the time or that he did not know she was under 18.” Id. at 167, 627 A.2d 541.
II
Before us, Outmezguine reasserts his view that scienter is an element of the offense of photographing a minor engaging in an obscene act or sexual conduct under
Outmezguine‘s First Amendment challenge appears to focus on the argument that a photographer may decide not to take pictures of adults engaging in nonobscene sexually explicit conduct because of a fear that a minor, posing as an adult, is the subject of the photographs. Hence, he claims that a construction of
Outmezguine points to three of our prior decisions where we read a scienter requirement into a statute. Those cases involved possessing a controlled dangerous substance, driving with a suspended license, and carrying a concealed dangerous weapon. Outmezguine argues that we should similarly impose a knowledge requirement in
Outmezguine further asserts that the legislative history of
In the alternative, Outmezguine avers that if the Legislature did not intend to make knowledge of the minor‘s age an element of the crime, it surely intended to make a reasonable
Finally, Outmezguine argues that the Court of Special Appeals improperly determined that he waived his right to appellate review on the issue of a reasonable mistake of age defense. He asserts that once the trial judge construed
The State contends that the plain language and legislative history of
The State also claims that the Legislature in 1978, when the first child pornography statute was enacted, had before it a variety of child pornography bills, some of which contained scienter as an element of the crime. But, it says, in the end the Legislature chose to enact a bill that did not include a requirement that the photographer have knowledge of the child‘s minority. From this, the State concludes that the Legislature considered and weighed the merits of imposing or not imposing a requirement of scienter and consciously decided not to include such a requirement.
The State observes that wide latitude is generally afforded to the Legislature to define offenses and exclude elements of knowledge from those definitions. In addition, it contends that the crime of child pornography is significantly different than the types of offenses where we have read a scienter requirement into a statute. Specifically, it is argued that
The State asserts that the legislative history of the 1989 amendment to
According to the State, the First Amendment is not infringed by an interpretation of
Finally, the State contends that, if we find that mistake of age is a defense, placing the burden of raising the defense on the defendant does not create a due process violation. Specifically, it avers that requiring the defendant to produce some evidence of a mistake of age defense is not a violation of the Due Process Clause as long as once the issue is raised, the State bears the burden of persuasion beyond a reasonable doubt as to the issue. In any event, it is the State‘s position that the Court of Special Appeals properly held that Outmezguine waived his right to review on the issue of reasonable mistake of age.
III
Assuming
We are, of course, mindful that a statute, such as
The doctrine of overbreadth is designed to protect First Amendment freedom of expression from laws written so broadly that the fear of punishment might discourage people from taking advantage of that freedom. See Broadrick v. Oklahoma, 413 U.S. 601, 611-13, 93 S.Ct. 2908, 2915-17, 37 L.Ed.2d 830 (1973); Curran v. Price, 334 Md. 149, 167, 638 A.2d 93 (1994). Nevertheless, the doctrine is used sparingly, and in order for a statute to be invalidated for overbreadth, its overbreadth must be substantial. See Osborne, supra, 495 U.S. at 112, 110 S.Ct. at 1697; Broadrick, supra, 413 U.S. at 615, 93 S.Ct. at 2917.
When analyzing
The protected speech in this case, the production of nonobscene adult pornography, would most likely not be chilled if
The value of the expression sought to be protected in this case arguably deserves less First Amendment protection than other forms of expression.12 The Supreme Court said in Ferber that “[t]he value of permitting ... photographic reproductions of children engaged in lewd sexual conduct is exceedingly modest, if not de minimus.” 458 U.S. at 762, 102 S.Ct. at 3357. Similarly, we believe that the value of the constitutionally protected expression in this case, the production of nonobscene adult pornography, is minimal.
The State unquestionably has a significant interest in protecting children, see, e.g., Osborne, supra, 495 U.S. at 109, 110 S.Ct. at 1696; Ginsberg v. New York, 390 U.S. 629, 641-43, 88 S.Ct. 1274, 1281-83, 20 L.Ed.2d 195 (1968), and in prohibiting the use of children as subjects in pornographic material. See Ferber, supra, 458 U.S. at 757, 102 S.Ct. at 3354 (stating that the goal of preventing the sexual exploitation of children is “of surpassing importance“). Balancing these various interests,
Outmezguine argues that the Ninth Circuit‘s decision in U.S. v. U.S. Dist. Court for Cent. Dist. of Cal., 858 F.2d 534 (9th Cir.1988) should guide our decision today. In that case, the court held, under the similar federal child pornography statute, that “the first amendment does not permit the imposition of criminal sanctions on the basis of strict liability where doing so would seriously chill protected speech.” Id. at 540.13 After analyzing a number of Supreme Court cases, the court said:
“a speaker may not be put at complete peril in distinguishing between protected and unprotected speech. Otherwise, he could only be certain of avoiding liability by holding his tongue, causing him ‘to make only statements which “steer far wide[] of the unlawful zone.“” As the Court noted ..., ‘a rule that would impose strict liability on a publisher for [unprotected speech] would have an undoubted “chilling” effect on speech ... that does have constitutional value. ‘” (citations omitted).
The Ninth Circuit nevertheless concluded that the First Amendment does not require knowledge of the minor‘s age to
“[Legislatures] may not impose very serious criminal sanctions on those who have diligently investigated the matter and formed a reasonable good-faith belief that they are engaged in activities protected by the first amendment. ‘Freedoms of expression require “breathing space“‘; imposition of major criminal sanctions on [individuals] without allowing them to interpose a reasonable mistake of age defense would choke off protected speech.”
Id. at 540-41 (citations omitted). The court concluded, however, that placing the burden on the defendant to prove by clear and convincing evidence that he was mistaken about the child‘s minority was sufficient to overcome the federal child pornography statute‘s constitutional infirmities. Id. at 542-44.
Unlike the Ninth Circuit, the Court of Appeals of Minnesota has concluded that the First Amendment does not require a defense of mistake of age. In State v. Fan, 445 N.W.2d 243 (Minn.App.1989), cert. denied, 494 U.S. 1030, 110 S.Ct. 1480, 108 L.Ed.2d 617 (1990), the court upheld its child pornography statute which provides that “mistake as to the minor‘s age is [not] a defense.” Id. at 247-48. The Fan court distinguished the U.S. Dist. Court case by stating that the federal statute was silent with respect to the mistake of age defense, whereas the Minnesota statute expressly excluded the mistake of age defense. 445 N.W.2d at 247. Consequently, it explained that the Minnesota Legislature‘s clear intent was to have a strict liability offense and that such a construction did not violate the First Amendment.14
Outmezguine correctly observes that “criminal responsibility may not be imposed [for violations of child pornography laws] without some element of scienter on the part of the
defendant.” Ferber, supra, 458 U.S. at 765, 102 S.Ct. at 3358. This scienter requirement, however, does not refer to knowledge of the minor‘s age. See United States v. Kleiner, 663 F.Supp. 43, 44 (S.D.Fla.1987) (holding that the knowledge element, located in the federal crime that prohibits the shipment or transportation of child pornography in interstate commerce, “does not concern the age of the child“); United States v. Reedy, 632 F.Supp. 1415, 1422 (W.D.Okla.1986), aff‘d, 845 F.2d 239 (10th Cir.1988), cert. denied, 489 U.S. 1055, 109 S.Ct. 1318, 103 L.Ed.2d 587 (1989) (stating that “the federal child pornography law does not require that a defendant intend to or knowingly employ ... a child below eighteen years of age“).The scienter requirement refers to knowledge of the “nature and character” of the materials produced.
If, however, a photographer mistakenly judges the boundaries of what is considered sexual conduct, he does so at his own peril. See Hamling v. United States, 418 U.S. 87, 123, 94 S.Ct. 2887, 2910, 41 L.Ed.2d 590 (1974) (concluding that, in the context of obscenity, the prosecution must prove that the defendant “knew the character and nature of the materials,” not that they were legally obscene). Therefore, we hold that the First Amendment does not require knowledge of the
IV
A
The cardinal rule of statutory interpretation is to ascertain and effectuate legislative intent. See GEICO v. Insurance Comm‘r, 332 Md. 124, 131, 630 A.2d 713 (1993); State v. Crescent Cities Jaycees, 330 Md. 460, 468, 624 A.2d 955 (1993). In so doing, the primary source is the language of the statute. See Maryland Nat‘l Bank v. Pearce, 329 Md. 602, 619, 620 A.2d 941 (1993). The plain language can not be viewed in isolation; rather, the entire statutory scheme must be analyzed as a whole. See Williams v. State, 329 Md. 1, 15-16, 616 A.2d 1275 (1992). We also look to the context surrounding the enactment of a statute to determine the intention of the Legislature. See Pearce, supra, 329 Md. at 619-20, 620 A.2d 941. For example, legislative reports and other legislative history often provide helpful guidance in attempting to discern the Legislature‘s intent. See NCR Corp. v. Comptroller, 313 Md. 118, 125, 544 A.2d 764 (1988); Kaczorowski v. City of Baltimore, 309 Md. 505, 515, 525 A.2d 628 (1987).
A plain reading of
In McCallum, we considered the issue of whether the offense of driving with a suspended driver‘s license was a
We determined, as the Court of Special Appeals did, that the Legislature did not intend the offense to be a strict liability crime. Id. at 456-57, 583 A.2d 250. Therefore, we held that the trial court should have instructed the jury that a defendant must have knowledge that his license was suspended before convicting him of driving on a suspended license. Id. at 457, 583 A.2d 250.
In Dawkins, we confronted the issue of whether knowledge is an element of the offenses of possessing a controlled dangerous substance and possessing controlled paraphernalia despite the fact that the statute defining those crimes did not expressly contain the element of knowledge. We looked to other jurisdictions where the courts had construed similar statutes to include a knowledge element. 313 Md. at 645-48, 547 A.2d 1041. In addition, after examining the entire statutory scheme, we determined that the Legislature intended knowledge to be an element of the two offenses. Id. at 648-49, 547 A.2d 1041. We therefore held that “[i]n accord with the overwhelming majority of other jurisdictions, ... ‘knowledge’ is an element of the offenses.” Id. at 651, 547 A.2d 1041.
Those cases, however, are distinguishable from the case at bar. In each, we concluded that the Legislature, despite an omission, intended to provide a mens rea requirement. Thus, we read a scienter requirement into those statutes. In the instant case, however, when looking at the entire statutory scheme of
Although this case is different than McCallum and Dawkins, it is similar, in some respects, to Garnett v. State, 332 Md. 571, 632 A.2d 797 (1993), where we construed Maryland‘s statutory rape statute,
“Section 463(a)(3) prohibiting sexual intercourse with underage persons makes no reference to the actor‘s knowledge, belief, or other state of mind. As we see it, this silence as to mens rea results from legislative design. First, subsection (a)(3) stands in stark contrast to the provision immediately before it, subsection (a)(2) prohibiting vaginal intercourse with incapacitated or helpless persons. In subsection (a)(2), the Legislature expressly provided as an element of the offense that ‘the person performing the act knows or should reasonably know the other person is mentally defective, mentally incapacitated, or physically helpless.’ Code, § 463(a)(2) (emphasis added in original). In drafting this subsection, the Legislature showed itself perfectly capable of recognizing and allowing for a defense that obviates criminal intent; if the defendant objectively did not understand that the sex partner was impaired, there is no crime. That it chose not to include similar language in subsection (a)(3) indicates that the Legislature aimed to make statutory rape with underage persons a more severe prohibition based on strict criminal liability.”
332 Md. at 585-86, 632 A.2d 797.
Similarly, we can not read into
The Legislature chose to include a scienter element in both subsections (b) and (d) of
Subsection (b) does not require the State to prove knowledge when the defendant “solicits, causes, or induces” a minor to engage in child pornography, but requires the State to prove scienter when the defendant is merely “permitting” a minor to engage in child pornography. Once again, the Legislature drew a logical distinction; it deliberately omitted a scienter requirement for those who commit the more egregious “active” conduct of enticing children into the world of child pornography, while including a knowledge requirement for those who “passively” permit children to be exploited. Subsection (c), like the first portion of subsection (b), attacks those individuals who actively exploit children—photographers and filmmakers who produce child pornography. Therefore, we conclude that the Legislature deliberately and purposefully chose not to make knowledge of the child‘s age an element of
Further support for this construction can be found in the legislative history surrounding the enactment of the first child pornography statute in 1978. As the Court of Special Appeals said:
“there was a spate of bills introduced into [the 1978] session of the General Assembly dealing with child pornography, some of which would have expressly required knowledge that the victim was under the prescribed age. See, for example, S.B. 248 (1978), H.B. 35 (1978). The question of whether to include such a requirement was thus squarely before the Legislature, and, by enacting the bill that it did, it chose not to do so.”
97 Md.App. at 162, 627 A.2d 541. It is therefore clear, both from the plain language of
B
The plain language of
“It was in 1989 that the Legislature came closest to
revisiting the question now before us. Neither the law then in effect nor the 1989 bill purported, expressly, to include knowledge of the child‘s age as an element of the offense, to be proved by the State. Indeed, the Attorney General‘s Office had opined with respect to the 1989 bill (H.B. 243) that, based on decisions dealing with the Federal counterpart, ‘knowledge of the age of the child is not an element of the offense ... and lack of knowledge need not be recognized as a defense.’ See letter opinion dated February 20, 1989, from Assistant Attorney General Kathryn M. Rowe to Delegate Anne MacKinnon, included among the records of the House Judiciary Committee on H.B. 243 in the Department of Legislative Reference.”
97 Md.App. at 165, 627 A.2d 541. The court continued:
“The first reader 1989 bill contained a provision that ‘[a] mistake of age is not a defense to a prosecution under this section’ (emphasis added in original), but the Legislature deleted that statement, notwithstanding the Attorney General‘s letter, apparently in response to a concern registered by a representative of the American Civil Liberties Union. ... [A]n inference could perhaps be drawn from that deletion that the Legislature intended for mistake as to the victim‘s age to be an affirmative defense. ...”
It is important to ascertain what prompted the Legislature to remove this language. The bill, H.B. 243, was first read on January 11, 1989 and contained the language “[a] mistake of age is not a defense to a prosecution under this section.”16 Then, on February 7, 1989, as the intermediate appellate court noted, the American Civil Liberties Union of Maryland testified with regard to H.B. 243. It said:
“We believe the bill would unconstitutionally remove any necessity of scienter from the section of the law, by stating
that ‘a mistake of age is not a defense to prosecution under this section.‘”
The ACLU continued:
“Under this bill, if a 17-year old produces false identification, stating that he is 21, and a producer proceeds to make [a pornographic] film, that producer could be jailed for 20 years. Our system of justice dictates against that punishment.”
On February 28, 1989, three weeks after the ACLU testified, H.B. 243 was amended and the language that stated “[a] mistake of age is no defense” was deleted from the bill.17 We agree with the Court of Special Appeals that this prompt action by the Legislature most likely can be directly attributed to the ACLU‘s concerns. From this chain of events, it is arguable that the Legislature did not want to eliminate the availability of a mistake of age defense, but rather intended to permit a defendant indicted under
Twenty-five states and the District of Columbia, under similar statutes proscribing child pornography, require the prosecution to prove scienter as to the minor‘s age or allow a mistake of age defense.18 Only three states expressly pre-
V
Outmezguine argues that if mistake of age is permitted as a defense, then necessarily knowledge of the minor‘s age must be an element of the offense. He believes that a defense of mistake of age is only relevant to a crime involving a culpable mental state and, thus, if we acknowledge mistake of age to be a defense, we are in fact recognizing scienter to be an element of the offense. We disagree with this contention. On its face, there are three possible constructions of a statute such as
Outmezguine next asserts that shifting the “burden” to the defendant to prove the absence of the mental state required for a crime may be unconstitutional under the Due Process Clause of the Fourteenth Amendment. He observes that, in general, the Due Process Clause “requires the prosecution, to prove beyond a reasonable doubt, ‘every fact necessary to constitute the crime’ with which a defendant is charged.” State v. Evans, 278 Md. 197, 200, 362 A.2d 629 (1976) (quoting in part In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970)).
He also believes that placing the burden on a defendant to prove that he did not know the child‘s age is equivalent to creating a presumption that the defendant knew the child‘s minority. If an element of an offense is established by a
The State appears to concede that the burden of persuasion could not be placed on a defendant to prove that the defendant did not know the minor‘s age. It urges, however, that it is permissible to place the burden of production on a defendant. Specifically, it states that “the fact that the defendant is required to produce some evidence of his mistake of age defense, thus raising the issue, is not a violation of the Due Process clause as interpreted in Mullaney v. Wilbur, 421 U.S. 684 [ , 95 S.Ct. 1881, 44 L.Ed.2d 508] (1975), as long as once the issue is raised then the State bears the burden of persuasion beyond a reasonable doubt as to the issue.”
Unlike Outmezguine, we think that “[i]t is constitutional for the state to allocate, by means of a presumption, the initial burden of production of evidence on such issues as insanity and self-defense to the defendant.” McLain, supra, § 303.2, at 244 n. 9. Similarly, it is constitutional to place the burden of production on a defendant to raise the issue of reasonable mistake of age. In U.S. Dist. Court, supra, 858 F.2d at 543, the Ninth Circuit placed the burden on the defendant to prove mistake of age by clear and convincing evidence. Thus, that court placed the ultimate burden of persuasion on the defendant.
We also disagree with Outmezguine that placing the burden of production on the defendant is necessarily equivalent to creating a presumption. As one court has stated: “even the traditionally strict liability offenses of statutory rape and selling alcohol to minors have not included criminal presumptions that the person involved was a minor.” American Library Ass‘n v. Thornburgh, 713 F.Supp. 469, 480-81 (D.D.C. 1989), vacated on other grounds, 956 F.2d 1178 (D.C.Cir.1992).
The method of applying this defense of reasonable mistake of age would be that suggested by Judge Bell in his dissenting opinion in Garnett, supra, 332 Md. at 594 n. 3, 632 A.2d 797:
“Before the State‘s burden affirmatively to prove the defendant‘s mental state kicks in, the defendant must have generated the issue by producing ‘some evidence’ supporting his or her claim of mistake of fact. If the defendant generates the issue, the State must prove beyond a reasonable doubt that the act was committed without any mistake of fact—that the defendant acted intentionally and knowingly.” (citations omitted).
Indeed, this method appears to be precisely the interpretation requested by the State in its brief.
VI
The State argues that Outmezguine failed to raise the issue of mistake of age at his trial and therefore has waived this defense. Outmezguine maintains that once the court ruled, on his motion for acquittal at the end of the State‘s case, that knowledge of the child‘s minority was not an element of the crime, it would have been futile to offer any evidence which showed he was mistaken about Jennifer‘s age.
At trial, Outmezguine‘s defense was that “I did not take the pictures” and, in the alternative, “I did not know how old she was.” All of his challenges to the statute centered on his belief that the State needed to prove that he had knowledge that Jennifer was under 18. Had he argued that he reasonably thought Jennifer was 18 or older, the issue may have
Outmezguine thus failed to generate the issue of mistake of age; in fact, his situation is practically identical to the hypothetical set forth by Judge Bell in his dissent in Garnett, supra. “The mistaken belief must tend to negate the mens rea necessary to the commission of the crime. For example, belief that the victim was 13 and 1/2 years of age, instead of 13, will be of no avail since section 463(a)(3)‘s age limit is 14.” 332 Md. at 605 n. 14, 632 A.2d 797. Similarly, Outmezguine‘s argument that “I did not know how old she was” is insufficient to generate the issue of reasonable mistake of age in this case.
Outmezguine contends that he did not offer any such evidence because the trial court ruled that knowledge of the minor‘s age was not an element of the crime. We recently stated that if a trial judge makes a mistake, it is incumbent upon counsel to elucidate the record. Bobbitt v. Allied-Signal, Inc., 334 Md. 347, 639 A.2d 142 (1994). We also said that a party cannot lie back and be heard to complain only after an adverse verdict has been returned. Id.
In the instant case, the trial court was correct in its refusal to instruct the jury that knowledge is an element of the crime. Nevertheless, to preserve the issue for appeal, Outmezguine should have presented “some evidence” of his belief that Jennifer was an adult, notwithstanding the trial court‘s actions. It is interesting to note that the record is devoid of any attempt on Outmezguine‘s part to introduce evidence that would show he reasonably believed Jennifer was 18 or older. Rather, the only testimony before us (and before the trial court) was his statement that he did not know her age. Therefore, we conclude that Outmezguine failed to raise the defense of reasonable mistake of age and consequently waived his right to appellate review on that issue.
JUDGMENT AFFIRMED, WITH COSTS.
The majority assumes that
In Part IV of its opinion, the majority undertakes the construction of
To the extent that the majority opinion can be read as holding that the mistake of age defense applies to
The majority concludes that Outmezguine “failed to raise the issue of mistake of age and therefore has waived this defense” because, in testimony, he said only that he “did not know how old she was.” Op. at 51-52. I agree with the petitioner that the issue was adequately preserved for appellate review; there was in the record sufficient evidence to generate the claim of reasonable mistake of fact.
We recently considered “under what circumstances imperfect self-defense may be generated by evidence other than the defendant‘s testimony,” that is to say, whether the source of the evidence to establish a claim of mistake of fact, because it is necessarily subjective and provable only by circumstantial evidence, see State v. Jenkins, 307 Md. 501, 513-15, 515 A.2d 465, 471-72 (1986), must be the defendant‘s testimony. State v. Martin, 329 Md. 351, 358-59, 619 A.2d 992, 995-96 (1993). We noted, as we had done in earlier cases, that, to generate the defense, all that was required was “‘some evidence’ of the
“‘Some evidence’ is not strictured by the test of a specific standard. It calls for no more than what it says—‘some,’ as that word is understood in common, everyday usage. It need not rise to the level of ‘beyond reasonable doubt’ or ‘clear and convincing’ or preponderance. The source of the evidence is immaterial; it may emanate solely from the defendant. It is of no matter that the self-defense claim is overwhelmed by evidence to the contrary. If there is any evidence relied on by the defendant which, if believed, would support his claim that he acted in self defense, the defendant has met his burden. Then the baton is passed to the State. It must shoulder the burden of proving beyond a reasonable doubt to the satisfaction of the jury that the defendant did not kill in self defense.”
329 Md. at 359, 619 A.2d at 995-96, quoting Dykes v. State, 319 Md. 206, 571 A.2d 1251, 1257 (1990). (emphasis added). We explained that that evidence, to be sufficient to generate the issue of mistake of fact, must be of circumstances permitting an inference to be drawn as to the defendant‘s state of mind at the time of the act, i.e., evidence tending affirmatively to prove what the defendant felt or believed at the relevant time. Id., 329 Md. at 367-68, 619 A.2d at 1000. Cf. Dykes, 319 Md. 206, 571 A.2d 1251 (defendant is entitled to an instruction on imperfect self-defense as long as there is “any” evidence in the case from which a jury could conclude that the defendant had the subjective belief that the use of deadly force was necessary). The source of that evidence ordinarily is, but need not be, the defendant‘s testimony. Martin, 329 Md. at 361-62, 619 A.2d at 997.
In this case, the combination of the appearance of the victim, the jury‘s question regarding the mistake of age defense, and the petitioner‘s conceded lack of knowledge of the victim‘s age coalesce to generate the issue. The petitioner testified at trial that “I did not know how old she was.”
641 A.2d 888
ATTORNEY GRIEVANCE COMMISSION OF MARYLAND, Petitioner,
v.
Steven H. KERBEL, Respondent.
Misc. Docket (Subtitle BV) No. 5, September Term, 1994.
Court of Appeals of Maryland.
June 3, 1994.
ORDER
This matter came before the Court on the Joint Petition of the Attorney Grievance Commission of Maryland and Respondent, Steven H. Kerbel, to place Respondent on Indefinite Suspension. The Court having considered the Petition, it is this 3rd day of June, 1994,
ORDERED, that Respondent, Steven H. Kerbel, be and is hereby indefinitely suspended from the practice of law in the State of Maryland effective immediately; and it is further
Notes
In addition, 12 jurisdictions make no mention of scienter in their child pornography statutes and thus presumably also operate as strict liability crimes. See
Seven states have child pornography statutes that are either incomprehensible with regard to whether scienter as to the child‘s age is an element or have seemingly inconsistent provisions. See