Spicuzza v. StateSpicuzza v. State
PRESERVATION – MD. RULE 4-323 – NECESSITY OF OBJECTIONS
In this case, the defendant filed a motion in limine to exclude certain evidence, which the circuit court denied. The State argued that the Supreme Court of Maryland should not consider the defendant’s contentions of error because defense counsel failed to make proper objections prior to the admission of the evidence at trial. The Supreme Court reiterated the requirements under Maryland Rule 4-323(a) for making contemporaneous objections at the time that evidence is being offered at trial. The Supreme Court also discussed the continuing objection rule, Maryland Rule 4-323(b), which permits a party to request a continuing objection, which is effective “only as to questions clearly within its scope.” Applying these rules to the record presented, the Supreme Court held that defense counsel made an adequate objection prior to the first witness who testified about the matter in question. However, the Supreme Court held that the objection to the first witness’s testimony was not broad enough to cover the testimony of another witness who testified the following day. Notwithstanding the waiver of a portion of the second witness’s testimony, the Supreme Court held that the ultimate issue before the Court—whether evidence of the defendant’s alleged misconduct and sexual abuse with the victim’s friends was admissible—was adequately preserved for appellate review.
EVIDENCE – MD. RULE 5-404(b) – COMMON SCHEME OR PLAN EXCEPTION
Under Maryland Rule 5-404(b), evidence of other crimes, wrongs, or other acts (“other bad acts”) is not admissible to prove the character of a person to show action in conformity therewith. The proffering party bears the burden of showing that the evidence is specially relevant to a contested issue in the case other than propensity. In this case, the defendant was on trial for raping and committing other sexual crimes against his minor daughter. The Supreme Court held that the circuit court did not err in admitting other bad acts evidence relating to sexual abuse of his daughter’s friends and his providing them with intoxicating substances under the “common scheme or plan” exception in Maryland Rule 5-404(b).
“WHY-WOULD-SHE-LIE” QUESTION
The Supreme Court held that the trial court erred in overruling the defendant’s objection to the “why-was-she-lying” question that the State asked the defendant during his cross-examination. Although the State asked the question in response to the defendant’s improper statement that his daughter made a “vile and false statement,” neither question was relevant nor competent. Maryland case law does not permit the admission of incompetent evidence under the “opening the door” doctrine. The appropriate way for the State to have handled the defendant’s unresponsive, improper, and inadmissible statement would have been to object and request that the court instruct the jury to disregard the
ADMISSION OF CHARACTER EVIDENCE FOR TRUTHFULNESS UNDER MARYLAND RULE 5-608(a)
The Supreme Court held that the trial court did not err in refusing to allow the defendant to present character witnesses to attest to his honest character. The defendant was not charged with a veracity impeaching offense. Under the plain language and structure of Maryland Rule 5-608(a), a defendant is not permitted to introduce evidence of his general character trait for honesty simply because he or she testified and the State establishes inconsistencies between the defendant’s testimony and the testimony of other witnesses. Unearthing inconsistencies as part of a cross-examination is different from establishing that a criminal defendant has a general character trait for dishonesty. Unless a criminal defendant is charged with a veracity impeaching offense, simply being subject to vigorous cross-examination is insufficient to make a criminal defendant’s character for truthfulness for purposes of introducing evidence of a general honest character. The Court further held that, even if the State had placed the defendant’s character for honesty in question, the trial court did not abuse its discretion in refusing to permit the defendant’s witnesses to testify based upon the lack of specificity in the proffers.
Case No.: C-18-CR-22-000283
Argued: December 5, 2025
In this case, we are asked to consider whether evidence of other bad acts of sexual abuse was admissible under the “common scheme or plan” exception under
We granted certiorari to consider whether the trial court erred by (1) admitting other bad acts evidence pursuant to the common scheme or plan exception, (2) allowing the State to erroneously ask Mr. Spicuzza why his daughter—the victim—would be lying about the sexual abuse, and (3) refusing to permit Mr. Spicuzza’s character witnesses to testify as to his honest character after Mr. Spicuzza testified and was subjected to cross-examination. In considering these questions, we also address the
The rape and sexual abuse for which Mr. Spicuzza was convicted involved his daughter, H., who was 15 years old at the time of trial. The trial took place over five days. The State called six witnesses in its case in chief. One of Mr. Spicuzza’s primary contentions on appeal involves the trial court’s ruling that permitted H.’s minor friends, A.L. and A.B., to testify about certain alleged crimes involving sexual abuse by Mr. Spicuzza against them, as well as Mr. Spicuzza’s conduct in allegedly providing the minors with alcohol, vapes, and marijuana when they visited his apartment. The State sought to admit this evidence pursuant to the “common scheme or plan” exception to
For the reasons discussed below, we hold that the trial court properly admitted the other bad acts evidence under the common scheme or plan exception because it had special relevance to show Mr. Spicuzza’s plan to sexually abuse H. and her friends in his apartment. As for Mr. Spicuzza’s other assertions of error, we hold that the circuit court erred in permitting the State to ask Mr. Spicuzza to opine on why a witness was “lying.” However, we determine that the error was harmless beyond a reasonable doubt.
BACKGROUND
A. Factual Background1
On February 22, 2022, Detective Corporal James Bare of the St. Mary’s County Sheriff’s Office learned that two minor victims of reported sexual assaults were on their way to the child protective services center. He went there and watched in a separate room as a social worker, Nichole Moneymaker, interviewed the two young women, I.H., and A.L. The interview revealed another potential victim, H.S. (“H.”). Detective Bare then contacted H.’s mother, who brought her to the center. Ms. Moneymaker interviewed H., but H. had difficulty engaging, did not disclose anything to Ms. Moneymaker, and denied that her father, Mr. Spicuzza, had done anything improper with her.
On February 23, 2022, Detective Bare obtained and executed search warrants for Mr. Spicuzza’s apartment and his person based on I.H.’s and A.L.’s interviews. Mr.
Mr. Spicuzza was indicted for four counts of second-degree rape, one count of third-degree sexual offense, and five counts of sexual abuse of a minor.2 Before trial, Mr. Spicuzza and the State filed preliminary motions that pertain to some of the evidentiary rulings that are the subject of his appeal. We discuss some of the pretrial proceedings that led to the circuit court’s rulings on the admissibility of A.L. and A.B.’s testimony, as well as Mr. Spicuzza’s efforts to introduce character witnesses.
B. Procedural Matters
Prior to trial, Mr. Spicuzza provided the State with notice that he intended to call several character witnesses to opine on his character for honesty, peacefulness, and appropriate interactions with children. The State moved to strike Mr. Spicuzza’s character witnesses. The court heard arguments on the State’s motion on September 27, 2022. At the hearing, in addition to the character traits already identified, Mr. Spicuzza argued that his witnesses should be able to testify to an additional trait—his law-abiding nature. Mr. Spicuzza informed the court that he intended to submit proffers that would describe the witnesses’ bases of knowledge, the relevant time frame in which they had known Mr. Spicuzza, the frequency of their contact with Mr. Spicuzza, and the quality of those contacts. The court asked for the proffers in writing, and the parties agreed to a second hearing on the character witness issue.
On October 14, 2022, Mr. Spicuzza submitted a written proffer of his character witnesses’ opinions as they related to his honesty, peacefulness, appropriateness with children, and law-abiding nature. The proffer identified eight character witnesses. The court held a second hearing on December 16, 2022. At that hearing, Mr. Spicuzza asserted only two traits—honesty and peacefulness—and withdrew traits of appropriateness with children and his law-abiding nature. He argued that his honesty was relevant because he planned to testify at trial. He added that his proffer detailed the witnesses’ proposed testimony and reflected that each witness was qualified to testify. The prosecutor responded that the testimony proffered was not relevant to the charges, lacked specificity,
After argument, the court concluded that, because there were no allegations of force as part of the charges against Mr. Spicuzza, his character for peacefulness was irrelevant. As to honesty, the court determined that the proffers were too conclusory. The bare-boned proffers, the trial court concluded, did not provide enough “details” or “information” to assess whether the witnesses’ testimony “would be appropriate or not” because it included “no information as to the basis for their opinion.” The court also recognized that the proffers seemed geared toward the traits of appropriateness with children and his law-abiding nature—traits that Mr. Spicuzza had abandoned. Accordingly, the court ruled that the proffers lacked an adequate basis, and thus granted the State’s motion to preclude the proffered witnesses from testifying about Mr. Spicuzza’s character for honesty.
2. The State’s “Common Scheme” Evidence
During discovery, the State identified four friends of H., all minors, who were interviewed by Ms. Moneymaker in February 2022. Mr. Spicuzza filed a motion in limine seeking to exclude evidence related to the four alleged victims under
The court heard arguments on Mr. Spicuzza’s motion in limine at the December 2022 hearing. The prosecutor argued that evidence of Mr. Spicuzza’s interactions with H.’s minor friends was admissible as evidence of a “common scheme or plan” under that exception in
The court denied Mr. Spicuzza’s motion to exclude the witnesses. It reasoned that the proffered testimony fit within the common scheme or plan exception because the victims were similar in age; they all claimed that Mr. Spicuzza offered to exchange alcohol, vapes, and marijuana for sexual favors; and they asserted that Mr. Spicuzza showed them
C. The Trial
At the outset of the trial, Mr. Spicuzza moved to reconsider the court’s exclusion of his character evidence. He also indicated that he intended to renew his objection at the start of the defense’s case. The court reserved its ruling on his motion until then. Defense counsel also stated that he was “still asserting under [Rule 5-]404(b) that” A.L.’s “testimony as an alleged victim should not be allowed and we adopt all of the same arguments.”
1. The State’s Case in Chief
The State called six witnesses in its principal case. Mr. Spicuzza testified in his own defense. We provide a general overview of the evidence, and some additional detail with respect to the evidentiary issues that are before us.
a. H.’s testimony
H. was 15 years old at the time of trial. Mr. Spicuzza and her mother divorced when she was 7. H.’s mother remarried, and H. lived with her mother and stepfather during the week and spent every weekend with Mr. Spicuzza. H. testified that her mother and stepfather had strict rules, but that her father did not.
H. testified that her father had sexually abused her for two years. She stated that after her parents divorced, Mr. Spicuzza lived at his parents’ house, and the sexual abuse started while he was living there. She testified that during the period in which Mr. Spicuzza
When H. was around 12 years old, Mr. Spicuzza moved into a one-bedroom apartment, and she continued to spend every weekend with him. H. testified that Mr. Spicuzza would buy her marijuana and alcohol, which she consumed in his apartment. During this period, according to H., the abuse continued—initially consisting of Mr. Spicuzza touching her vagina, licking her vagina on “too many” instances to estimate, and ultimately escalating to vaginal intercourse. She testified that he would try to lick her vagina, and that “[t]he first bunch of times,” she “refused and would not let him.” However, “in the end,” she “gave up because he was too pushy.”
H. testified that he started to use sex toys on her when she was 12 years old, although she was “not a hundred percent sure” when it started. She did not testify as to when her father raped her for the first time. However, she testified that the last time that she had vaginal intercourse with Mr. Spicuzza was on the morning of February 22, 2022—the same day of her first interview at child protective services. H. testified that she had drunk rum and Coke and smoked marijuana. She stated that Mr. Spicuzza had bought the alcohol and that one of his friends had left the marijuana at Mr. Spicuzza’s apartment. H. testified that Mr. Spicuzza had pulled out her tampon as he licked her vagina and had intercourse with her.
H. described other sexual acts. She testified that, approximately “three times,” Mr. Spicuzza asked for oral sex in exchange for H. having friends over, or for providing her
After H. described the sexual abuse, the prosecutor asked H. about spending time with her friends while staying with Mr. Spicuzza. H. testified that she often had one or more of her four friends—A.L., A.B., C., and I.H.—with her when she stayed at Mr. Spicuzza’s apartment. H. testified that Mr. Spicuzza had certain rules when she had friends over: (1) the girls were not permitted to tell their parents what happened at the house; and (2) they were not permitted to take videos with their phones. H. testified that when they were at Mr. Spicuzza’s apartment, H. and her friends would smoke marijuana, drink, and party.
According to H., Mr. Spicuzza would buy them marijuana, alcohol, and vape pods, and in exchange, would ask the girls to show him their “tits.” H. stated that Mr. Spicuzza made this request “too many” times “to count.” H. stated that Mr. Spicuzza showed pornographic videos to H. and her friends 20 to 30 times. H. warned her friends to “be careful” around her father because “he’s kind of creepy[.]”
H. testified that on February 22, 2022, she learned that I.H. and A.L. had been interviewed by a social worker at child protective services, and that her mother was also taking her to child protective services to be interviewed. H. acknowledged that during the
H. testified that the following day, she told her mother “almost everything” about what Mr. Spicuzza had done. On February 24, 2022, H. returned to child protective services for another interview with Ms. Moneymaker. According to H., during that interview, she disclosed a great deal of the sexual abuse that she had described to the jury, but she had “left out that he had raped” her. H. testified that she failed to disclose the rape because she knew it was a more serious charge, and she did “not want” her father “to go to jail or get into trouble.”
H. was interviewed at child protective services a third time on May 13, 2022. Between the second interview on February 24 and the third interview on May 13, H. underwent counseling. H. testified that she ultimately disclosed to her mother that Mr. Spicuzza had vaginal intercourse with her and used sex toys on her. After telling her mother, H. told her counselor and Ms. Moneymaker.
b. A.L.’s Testimony
A.L., who was 13 years old at the time of trial, testified on the second day. She testified that, between New Year’s Eve in 2021 and for a period of two to three months thereafter, she spent every weekend with H. at Mr. Spicuzza’s apartment. A.L. stated that she stopped spending time at Mr. Spicuzza’s because she “got uncomfortable” and told her mom. She testified that Mr. Spicuzza gave the girls alcohol, marijuana, and/or vapes
At this point in A.L.’s direct examination, defense counsel asked to approach and made the following objection on the record:
[Defense Counsel]: I’m just required to make the objection again. So with respect to all of her testimony that was subject to the 404(b) hearing with respect to sex, may I have a continuing objection based on all arguments in writing and verbal?
After the court noted the continuing objection, the State continued A.L.’s direct examination. A.L. testified that Mr. Spicuzza would “try to put his hands on” her if she walked by him, “smack her butt[,]” and tell her that she had “a really nice body for her age,” and that she was “hot.” A.L. stated that Mr. Spicuzza made comments about her body every time she was at his apartment. A.L. testified that Mr. Spicuzza asked her for sexual favors in return for the marijuana, alcohol, and vapes. On one of those occasions, Mr. Spicuzza asked A.L. if she “would let him eat [her] out” in order to get vape pods for H. According to A.L., on one occasion after Mr. Spicuzza “had asked for a sexual favor for money, H. looked at [A.L.] and said, ‘Please, I really need the money.’ But [A.L.] told her no.”
According to A.L., Mr. Spicuzza would buy alcohol for the girls, which they consumed “pretty much every time [they] were over there.” A.L. also testified that Mr. Spicuzza would show the girls pornography “every time” they were at his apartment. The videos were “different every time,” but they always depicted two people having sex or
A.L. described an incident in which H. and A.L. were “dancing around[,]” and Mr. Spicuzza tried to touch her, but H. stopped him and told him that A.L.’s body “was hers.” She also described an incident in which Mr. Spicuzza exposed himself to her and another friend by removing a blanket that was over his lap, standing up, and revealing that he was unclothed.
Finally, A.L. described an incident that occurred on January 28, 2022, in which she had fallen asleep on Mr. Spicuzza’s bed while charging her phone. A.L. testified that she woke up “around like 2:00, maybe 3:00 a.m.,” to Mr. Spicuzza “trying to get his hands down [her] pants.” His “hand was going towards [her] vagina.” After she “kind of felt him like getting closer down, . . . [she] act[ed] like [she] woke up and [she] got up and . . . went into the living room.” Mr. Spicuzza followed A.L. out of the bedroom “and told [her] that he knew [she] was uncomfortable and asked [her] to come back to the room with him.” A.L. refused and stayed in the living room. A.L. stated that she told her mother “everything” in February. A.L. testified that after telling her mother, she was interviewed by the social worker, Ms. Moneymaker.
c. Ms. Moneymaker’s Testimony
After A.L.’s testimony concluded, the State called Nichole Moneymaker, a child protective services investigator with the St. Mary’s County Department of Social Services, who had interviewed H. and her friends. Ms. Moneymaker testified that, during her second interview of H. in February 2022, H. told her that Mr. Spicuzza “touched her
d. A.B.’s Testimony
The day after A.L.’s testimony, the State called A.B., who was 14 years old at the time of trial. A.B. testified that she saw Mr. Spicuzza on a few days in summer 2021 while visiting with H. at Mr. Spicuzza’s apartment. According to A.B., I.H. was also in the apartment “a few times” while A.B. was there. A.B. stated that Mr. Spicuzza took “advantage” of the girls by “grooming” them, and giving them “alcohol, [] weed[,] and nicotine.” A.B. described the rules that Mr. Spicuzza required when the girls were at his home, which were that they were not permitted to take any videos or “tell anyone about anything that happened there[.]” She testified that H. had “told [her] that her dad was into younger girls and that [she] should watch out,” but because H. had told her father not to “touch” A.B., “she shouldn’t have to worry.”
Like A.L. and H., A.B. testified that Mr. Spicuzza showed H. and her pornography. She recalled one time when
[h]e pulled us into his room . . . , he was underneath the covers, and his computer or his laptop was on his lap. And he said, “Hey, girls, come look at this.” And he pulled up a video of a girl giving oral sex to a guy. And almost instructing us that that’s what we should do and telling us to swallow and that she was doing really good.
After A.B. provided the testimony described above, defense counsel asked to approach the bench and requested a “continuing objection to the 404(b) motion[,]” to which the court agreed.4 The prosecution then continued its direct examination. A.B. provided other testimony concerning her time spent at Mr. Spicuzza’s apartment, including consuming alcohol, smoking “weed,” and using “vapes.” She also testified that I.H. was present, drank alcohol, and “use[d] weed and the vapes.”
2. Mr. Spicuzza’s Defense
Mr. Spicuzza testified in his own defense. He vehemently denied abusing H. He also denied that he engaged in any of the criminal conduct alleged by H.’s friends. We touch upon the testimony that concerns the evidentiary issues that are before us.
Mr. Spicuzza testified that prior to his arrest, he owned a small hauling company, and he was the only employee. He worked seven days per week, and his job required him to haul materials from the St. Mary’s County landfill to a landfill in Virginia. He testified that his schedule required him to go to sleep around 6:00 p.m. or 7:00 p.m. and to leave his apartment at around 3:00 a.m. or 3:30 a.m. Mr. Spicuzza stated that H. stayed with him on the weekends, and that he permitted her to have friends over as long as they did not leave the apartment once he went to bed or wake him up. Because he wanted H. to feel at home in his apartment, Mr. Spicuzza testified that he let H. and her friends have “the run of the mill[.]”
Mr. Spicuzza testified that, after learning that H., A.L., and I.H. left the apartment late at night without his permission, he prohibited I.H. and A.L. from returning for overnight visits. After defense counsel asked Mr. Spicuzza whether H. complained about that decision, Mr. Spicuzza answered that H. did not protest initially but that she did so later.
Mr. Spicuzza testified that he communicated with I.H.’s, A.L.’s, and A.B.’s parents “quite a bit,” including when they dropped their children off at his apartment. He also
Mr. Spicuzza denied engaging in any sexual conduct with H. or any of her friends. He denied providing H. or her friends alcohol, marijuana, or vapes, and testified that he was unaware that they were consuming these substances because he slept with his bedroom door closed. He denied he had “rules” prohibiting the girls from taking videos or photographs in his apartment. He admitted that he watched pornographic videos in his bedroom, but not in the presence of H.’s friends.
He testified that he had never deleted any photographs or videos from H.’s phone. He added that he did not know how to use an iPhone, or how an iPhone worked, and “d[id]n’t even think he could make a call with” an iPhone because he had a Samsung.
Mr. Spicuzza described the events that occurred between February 22, 2022 and his arrest two days later, including (1) H.’s mother calling him and telling him that the police wanted to question H. about something, (2) the police arriving at his apartment on February 23 with a warrant and searching his apartment, (3) borrowing his mother’s phone because his phone had been seized by the police, and (4) a meeting that he had with H.’s mother at his request in a Walmart parking lot, in which he tried to obtain information. On this last point, Mr. Spicuzza testified that during the Walmart meeting, he and H.’s mother had a conversation from the driver’s side of their respective car windows. Mr. Spicuzza stated that H. was in the back seat taking care of his ex-wife’s eight-month-old, and that he could not see H. because the windows were tinted.
Mr. Spicuzza’s direct examination concluded with the following exchange with his attorney.
[Defense counsel:] Did you – sir, I think this might be my last question, okay? When you heard your daughter tell this jury all of those things that she said you did to her sexually, how did you feel? Tell the truth.
[Mr. Spicuzza:] I – it it’s indescribable. I don’t know if any of you have children, but I don’t even think you could imagine what that feels like to sit here and listen to that. That is disgusting to hear that vile, false statement come from your daughter. I can’t -- I can’t describe it. Nor would I want you to feel what I feel. I wouldn’t wish that upon anybody.
[Defense counsel]: I don’t have any other questions.
The prosecution immediately began its cross-examination by asking Mr. Spicuzza to tell the jury why H. was lying:
[Prosecutor:] So, why is your daughter lying?
[Mr. Spicuzza:] So I believe she feels that I have destroyed her social life.
After Mr. Spicuzza answered the question, defense counsel asked to approach the bench and moved for a mistrial. Counsel stated that the question should be stricken because “it’s an inappropriate, inadmissible question to ask another witness to comment on the thought process of another witness.” The prosecutor responded that defense
The prosecutor also asked Mr. Spicuzza several questions about the conversations that he claimed to have had with H.’s friends’ parents, about which he had testified during his direct examination. The prosecutor identified each of H.’s friends’ parents, and asked Mr. Spicuzza questions in which he confirmed how often he spoke to each of them. He confirmed that he told each of the parents that he left his apartment at 3:30 a.m., the parents were aware that the girls would be left alone, and that the parents confirmed to him that they did not have a problem with their daughters being left alone.
b. Trial Court’s Denial of Mr. Spicuzza’s Motion to Reconsider Character Witnesses
After Mr. Spicuzza testified, defense counsel asked that the court reconsider its prior ruling related to character witnesses. Specifically, defense counsel asked the court to permit Mr. Spicuzza’s mother, older brother, and two other witnesses to testify as to Mr. Spicuzza’s character for honesty. The court denied the motion for all the reasons
c. Other Defense Witnesses
Although the court denied Mr. Spicuzza’s request that his mother and brother be permitted to testify as to his character for honesty, his mother and brother both testified about other subjects relating to their interactions with Mr. Spicuzza. Mrs. Spicuzza provided background information pertaining to their family, her husband’s and her occupations, their retirement, Mr. Spicuzza living with them after his divorce, and Mr. Spicuzza’s closeness with both of his parents. On cross-examination, the prosecution asked if Mrs. Spicuzza lent her phone to her son after his phone was seized as part of the search warrant on February 23, 2022. She testified that Mr. Spicuzza said he “needed to borrow it to call work.” She also testified that her phone was an iPhone.5
3. State’s Rebuttal Witnesses
The State called H.’s mother, D.R., to testify concerning her recollection of the conversation that she had with Mr. Spicuzza on February 22, 2022, in the Walmart parking lot from their respective automobiles. She testified that Mr. Spicuzza would have been able to see H. in the backseat behind the driver’s side because her window was partially
The State also called A.B.’s father and A.L.’s mother and father. Each parent testified as to their limited interactions with Mr. Spicuzza and testified that Mr. Spicuzza never informed them that he would be leaving his apartment at 3:30 a.m. and that the girls would be alone.
4. Conviction and Sentencing
The jury returned a guilty verdict on all counts. The court sentenced Mr. Spicuzza as follows: 25 years with credit for 476 days for count 1 (sex abuse of a minor); 20 years running consecutively to count 1, ten of those suspended, for count 2 (rape in the second degree); 20 years running consecutively to counts 1 and 2, ten of those suspended, for count 3 (rape in the second degree); 20 years running consecutively to counts 1, 2, and 3, ten of those suspended, for count 4 (rape in the second degree); 20 years running consecutively to counts 1, 2, 3, and 4, ten of those suspended for count 5 (rape in the second degree); and 10 years running consecutively to counts 1, 2, 3, 4, and 5 for count 6 (sex offense in the third degree). The court also sentenced Mr. Spicuzza to five years of supervised probation after he is released.
5. Appellate Court of Maryland
Mr. Spicuzza timely appealed to the Appellate Court of Maryland. The Appellate Court affirmed his convictions. Spicuzza v. State, No. 808, 2025 WL 782335, at *1 (Md. App. Ct. Mar. 12, 2025). The court held that the testimony of A.B. and A.L., as well as the State’s witnesses mentioning I.H., was not admissible under the common scheme or
Although the Appellate Court agreed with Mr. Spicuzza that A.B.’s and A.L.’s testimony was not admissible as evidence of a common scheme, the court nonetheless concluded that the testimony was admissible because it “helped to explain H.’s delay in reporting the abuse that she suffered.” Id. The court noted that during H.’s cross-examination, defense counsel impugned her credibility by contending that she had not disclosed all of her allegations and waited until May 13 to accuse her father of rape. Id. at *6. The Appellate Court determined that the “‘bad acts’ were relevant to explain H.’s delay in revealing the abuse sooner.” Id. at *9. The Appellate Court reasoned that A.B.’s testimony corroborated H.’s testimony over her concern that she did not want her father to go to jail for his alleged acts, and “bolstered H.’s veracity in describing the lengths H. went to abate her fears.” Id. The court also determined that “A.L.’s and A.B.’s testimony helped plug some of the gaps in H.’s memory[]” that arose because of drug and alcohol consumption, and the suppression of memories. Id. The court concluded that the testimony was “specially relevant, and more importantly, admissible.” Id.
The Appellate Court held that the trial court did not err in refusing to permit Mr. Spicuzza’s character witnesses to testify to his honest character. The Appellate Court considered the differences between “‘honesty evidence’ bearing on Mr. Spicuzza’s charged offenses and ‘honesty evidence’ bearing on his credibility as a witness.” Id. at *10. As to the first type, the Appellate Court concluded that honesty was not a relevant trait to any of the offenses for which the State had charged Mr. Spicuzza. See id. at *11–12. The Appellate Court concluded that, because none of Mr. Spicuzza’s charges qualified as veracity impeaching offenses, the circuit court correctly granted the State’s motion in limine to exclude Mr. Spicuzza’s witnesses before trial. Id. at *14.
The Appellate Court also rejected Mr. Spicuzza’s argument that the proffered testimony should have been admitted to rehabilitate Mr. Spicuzza after he testified. Although the court acknowledged that, through the prosecutor’s cross-examination, the State uncovered contradictory statements between Mr. Spicuzza’s testimony and the testimony of other witnesses, the court held that the prosecutor’s cross-examination and introduction of testimony by the impeachment witnesses did not trigger rehabilitation through the introduction of character witnesses. Id. at *14–16.
Finally, with respect to Mr. Spicuzza’s assertion that the trial court erred in permitting the State to ask him the “why would she lie” question, the Appellate Court agreed with the State. Id. at *17. Examining the record, the Appellate Court determined that Mr. Spicuzza’s testimony on direct examination—that H. made a false statement—should not have been admitted. Id. at *19. The Appellate Court observed that the prosecutor should have objected to Mr. Spicuzza’s response to his counsel’s question as an “improper characterization of another witness’s testimony.” Id. That said, reasoned the court, Mr. Spicuzza generated the defect. Id. The Appellate Court concluded that “[t]o allow him to object during his cross-examination when the State seeks to explore the very matter he introduced would compound the mistake.” Id. The Appellate Court further determined that H. had testified earlier that she relied and depended on Mr. Spicuzza. Id. at *20. In light of the testimony, the Appellate Court determined that the prosecutor had reason to believe that Mr. Spicuzza might know H.’s motive to lie, especially because Mr. Spicuzza volunteered the issue. Id. The Appellate Court concluded that any prejudice to Mr. Spicuzza was self-inflicted, and the trial court did not abuse its discretion in allowing the State to question Mr. Spicuzza as it did. Id.
DISCUSSION
I
The State’s Preservation Argument Pertaining to A.L.’s and A.B.’s Testimony
As discussed above, prior to trial, Mr. Spicuzza unsuccessfully sought to exclude the other bad acts evidence involving H.’s friends. At the beginning of trial, defense counsel stated that he was “still asserting under [Rule 5-]404(b) that A.L.’s testimony should not be allowed,” and adopted “all of the same arguments” that had been made at the motions in limine hearings.
Shortly into A.L.’s testimony on the first day, defense counsel renewed his objection under
On the following day, A.B. testified. Defense counsel did not object to her testimony at the outset. Prior to any objection by defense counsel, A.B. testified that Mr. Spicuzza: (1) took “advantage” of the girls by “grooming” them and giving them “alcohol, [] weed[,] and nicotine”; (2) “talk[ed] about wanting to have sex with [them] and things he wanted to do to [their] bodies”; (3) had rules prohibiting them from taking any videos or “tell[ing] anyone about anything that happened there”; and (4) showed them pornographic videos of a girl performing oral sex and instructing the girls on how they should perform oral sex in a similar manner.
After A.B. provided this testimony, defense counsel asked to approach the bench and requested a “continuing objection to the 404(b) motion,” to which the court agreed.6
On appeal, the Appellate Court determined that there was no waiver because the trial court considered the defense’s objections to the other bad acts at the pretrial motion in limine hearing, and that Mr. Spicuzza’s trial objection at the time of A.L.’s testimony in which he objected “to all of her testimony that was the subject of the 404(b) hearing with respect to sex” “called back to that pre-trial hearing and preserved his arguments for review” concerning all of the “witnesses’ testimony” in their entirety. Spicuzza, 2025 WL 782335, at *3 n.2.
The State argues that the Appellate Court’s determination with respect to preservation is inconsistent with the Maryland Rules in two respects: (1) it is at odds with the contemporaneous objection requirement embodied in
The State argues that defense counsel’s objection at the beginning of A.L.’s testimony whereby counsel objected to “all of her testimony that was the subject of the 404(b) hearing” was not broad enough to encompass (1) other bad acts evidence relating to Mr. Spicuzza providing the girls with intoxicating substances, and (2) the testimony of a different witness—A.B.—who testified the following day. Mr. Spicuzza contends that his objections were properly preserved. He argues that defense counsel properly made an objection at the beginning of A.L.’s testimony, and the trial court and the parties understood that it extended to A.B.’s testimony.
Whether an evidentiary issue is properly preserved is an issue that arises under the Maryland Rules, interpretations of which are questions of law that we review de novo. State v. Schlick, 465 Md. 566, 573 (2019).
A. Maryland Rule 4-323
The contemporaneous objection rule applies “to rulings on motions in limine that result in the admission of evidence[.]” Reed v. State, 353 Md. 628, 638 (1999). Thus, “when a motion in limine to exclude evidence is denied, the issue of the admissibility of
The rule also permits a party, or the court, on its own initiative, to “grant a continuing objection to a line of questions by an opposing party.”
B. Defense Counsel Sufficiently Preserved the Objection to A.L.’s Testimony and a Portion of A.B.’s Testimony for Appellate Review
Applying these rules to A.L.’s and A.B.’s testimony, defense counsel was required to make contemporaneous objections to the admission of the testimony “at the time it was offered or soon thereafter,”
Based upon our review of the record, defense counsel preserved his objections to A.L.’s testimony for our review. Defense counsel objected to A.L.’s testimony before she testified. The basis for the objection was that it was impermissible under
We determine, however, that the objection that defense counsel made one day earlier to A.L.’s testimony was not broad enough to cover A.B.’s testimony. As noted, the objection that was made in connection with A.L.’s testimony was limited to “her” testimony. A.B.’s testimony the following day was clearly beyond the scope of the
In conclusion, we hold that the ultimate issue—whether the other bad acts evidence consisting of Mr. Spicuzza propositioning minors, showing them pornography, engaging in unlawful sexual touching of A.L., and providing the girls with intoxicating substances—was adequately preserved for appellate review. Defense counsel objected to A.L.’s testimony on these matters and the portion of A.B.’s testimony related to Mr. Spicuzza providing intoxicating substances to minors. Based upon this record, defense counsel’s objection to the other bad acts evidence was preserved for review.
II
“Other Bad Acts” and the Legal Framework for Admissibility
Generally, evidence of “other crimes” or “other bad acts” may not be introduced to prove that a defendant is guilty of the offense for which he or she is on trial. See State v. Faulkner, 314 Md. 630, 633 (1989). Indeed, “there are few principles of American criminal jurisprudence more universally accepted than the rule that evidence which tends to show that
A. Maryland Rule 5-404(b)
The admissibility of other crimes or bad acts evidence, other than for impeachment purposes, is governed by longstanding evidentiary principles that are currently set forth in
Evidence of other crimes, wrongs, or other acts . . . is not admissible to prove the character of a person in order to show action in the conformity therewith. Such evidence, however, may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, common scheme or plan, knowledge, identity, absence of mistake or accident, or in conformity with Rule 5-413.7
See also Merzbacher v. State, 346 Md. 391, 406 (1997) (“Maryland Rule 5-404(b) embodies the common law rule of ‘other crimes evidence.’”).
“The rationale behind the exclusion of other bad acts evidence when it is offered to show propensity is not that such evidence is irrelevant or has no probative force. To the contrary, such evidence has admitted probative value.” Browne, 486 Md. at 187 (citation modified). Instead, the Rule is “grounded in the reality that ‘substantive and procedural protections are necessary to guard against the potential misuse of other crimes or bad acts evidence and avoid the risk that the evidence will be used improperly by the jury against the defendant.’” Burris v. State, 435 Md. 370, 385 (2013) (quoting Streater v. State, 352 Md. 800, 807 (1999)). “Such evidence is thus ‘excluded because it may tend to confuse the jurors, predispose them to a belief in the defendant’s guilt, or prejudice their minds against the defendant.’” Browne, 486 Md. at 187 (quoting Terry v. State, 332 Md. 329, 334 (1993)). As we explained in Browne, “the overarching concern is that the jury may use evidence of crimes that are not the subject of the trial to conclude that the defendant is a bad person and, therefore, should be convicted of the charges for which the defendant is
In Harris, we determined that “the exclusionary approach offers the best balance between appropriate concerns for potential unfair prejudice from the introduction of other bad acts evidence, on the one hand, and the risk of excluding evidence possessing special relevance that outweighs the potential for unfair prejudice, on the other.” Browne, 486 Md. at 188 (citing Harris, 324 Md. at 499–500). We explained:
By stating the rule in exclusionary form—evidence of other bad acts is generally not admissible—followed by an exception for those instances in which the evidence 1) has special relevance, i.e., is substantially relevant to some contested issue in the case and is not offered simply to prove criminal character, and 2) has probative force that substantially outweighs its potential for unfair prejudice, the focus is correct, and the burden is where it belongs.
Harris, 324 Md. at 500. Given the high degree of potential unfair prejudice that accompanies the improper admission of other bad acts evidence, as well as the likelihood that the relevance of the evidence is often limited to that of the defendant’s character (i.e., that he or she is a bad person), we stated that “it will be the exceptional, and not the usual,
Finally, we clarified in Harris that the “admissibility of evidence of other bad acts is not confined to a finite list of exceptions[.]” Id. at 497. “The ‘so-called exceptions’ identified in the Rule are thus merely examples, honed over the course of centuries of development of this common law evidentiary principle, ‘of those areas where evidence has most often been found admissible even though it discloses other bad conduct.’” Browne, 486 Md. at 189 (quoting Harris, 324 Md. at 497–98); see also McKinney v. State, 82 Md. App. 111, 122 (1990) (describing the “exceptions” to the Rule as “a well established list of matters other than propensity that other crimes evidence may logically tend to prove”).
In State v. Faulkner, we laid out a three-part test for evidence to be excepted from the general exclusionary approach. 314 Md. 630 (1989). To be admissible, “(1) the evidence must be specially relevant; (2) the defendant’s involvement must be proved by clear and convincing evidence; and (3) the necessity for and probative value of the evidence
1. Special Relevance
“The first Faulkner requirement is that the evidence must be ‘substantially relevant to some contested issue in the case’ and ‘not offered to prove the defendant’s guilt based on propensity to commit crime.’” Browne, 486 Md. at 190 (quoting Faulkner, 314 Md. at 634). “When other bad acts evidence has substantial relevance to a contested issue other than propensity, it is said to have ‘special relevance.’” Id. (quoting Harris, 324 Md. at 500). Stated another way, as Professor Lynn McLain explains, “to have special relevance, other bad acts evidence ‘must be strongly probative of an issue other than character that is a significant issue in the case.’” Id. (quoting 5 Lynn McLain, Maryland Evidence: State and Federal, § 405:5 at 760 (3d ed. 2013) (“McLain, Maryland Evidence”)).
As noted,
2. Clear and Convincing Evidence
3. Weighing the Probative Value Against Possible Prejudice
If the court determines that the proponent of the evidence has satisfied the first two requirements, it “must still weigh the necessity for and probative value of the evidence against the danger of unfair prejudice that would result from its admission.” Id. (citing Faulkner, 314 Md. at 635). “If that danger substantially outweighs the necessity for and probative value of the evidence, the trial court should exclude it.” Id. (citing
Finally, as we emphasized in Streater, if the trial court admits the bad-acts evidence, “it should state its reasons for doing so in the record so as to enable a reviewing court to assess whether
B. Standard of Review
We apply a different standard of review to each step of a trial court’s determination concerning each of the three Faulkner requirements. Browne, 486 Md. at 193. A trial court’s determination of special relevance—whether evidence is substantially relevant to a
III
Admissibility of Other Bad Acts Evidence as a “Common Scheme or Plan”
Turning to the common scheme or plan exception that was the basis for the admission of the evidence at issue in this case, applying the Faulkner framework, we start by determining whether evidence of Mr. Spicuzza’s sexual abuse of H.’s friends, and his providing them with intoxicating substances, was specially relevant to a contested issue, and not simply introduced to establish Mr. Spicuzza’s propensity to commit the crimes for which he was tried: rape and sexual abuse of his daughter. The State argued to the trial court that such evidence was relevant to establish a “common scheme or plan,” and the trial court admitted the evidence pursuant to that exception.
The State’s theory of relevance is that Mr. Spicuzza used his daughter to lure other underage girls to his home, where he provided them with intoxicating substances, and showed them sexual materials. The State contends that by facilitating H.’s intoxication with her friends, Mr. Spicuzza subdued H., which enabled him to sexually abuse her. In addition, asserts the State, once the other girls were intoxicated in the privacy of his home, Mr. Spicuzza sexually propositioned them and showed them pornography. The State
Mr. Spicuzza disagrees. He claims that the other bad acts described by A.L. and A.B. were not part of a plan to abuse H. and, therefore, do not fall within the common scheme or plan exception. He asserts that under our case law, and the case law of the Appellate Court, similar sex offense allegations having no relationship to one another besides a method of operation or repetitive pattern are not sufficient to establish a common scheme or plan.
In arguing their respective positions, the State and Mr. Spicuzza each rely upon cases from this Court and the Appellate Court discussing Maryland’s common scheme or plan jurisprudence. We start our discussion by examining the cases.
A. Maryland Case Law Discussing and Applying the Common Scheme or Plan Exception
At the outset, we make two observations about our cases. First, cases analyzing the common scheme or plan exception arise in two procedural contexts: (1) whether the exception authorizes the admission of other bad acts evidence in a criminal trial in which the defendant is not on trial for offenses related to the other bad acts, see, e.g., Cross v. State, 282 Md. 468 (1978); Behrel v. State, 151 Md. App. 64 (2003); and (2) whether a defendant’s offenses were improperly joined for trial, see, e.g., Tichnell v. State, 287 Md. 695 (1980); Hart v. State, 260 Md. App. 491 (2024).
Second, Maryland courts have recognized two distinct ways in which other crimes evidence may fall within the common scheme or plan exception to
In Cross v. State, 282 Md. 468 (1978), this Court articulated the requirements for admitting other crimes or bad acts evidence under the common scheme or plan exception. There, we held that the trial court erred in admitting evidence linking the defendant to another break-in committed on the same day as the charged burglary, where the only
As a general rule, in order to gain the admission of evidence of other criminal acts under the common scheme or plan exception it is necessary that the crimes, including the crime charged, so relate to each other that proof of one tends to establish the other. Westcoat v. State, 231 Md. 354, 368 (1963); Wilson v. State, 181 Md. 1, 3 (1942); see Young v. State, 152 Md. 89, 91–92 (1927). Moreover, there must be “not merely a similarity in the results, but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations.” 2 J. Wigmore, Evidence s 304, at 202 (3d ed. 1940) (emphasis in original). The concurrence of common features under this exception, however, must be more than simply a manner of operation, which is possessed to some extent by most criminal recidivists. A method of operation is not, by itself, a common scheme, but merely a repetitive pattern. People v. Fiore, 312 N.E.2d 174, 178 (N.Y. 1974). Thus, evidence of other crimes can be introduced under the common scheme exception only when the relationship between the time, place, circumstances or parties involved in the crimes is such that the uncharged crime or crimes “support the inference that there exists a single inseparable plan encompassing both the charged and uncharged crimes, typically, but not exclusively, embracing uncharged crimes committed in order to effect the primary crime for which the accused has been indicted.” 312 N.E.2d at 177.
Id. at 475–76 (citation modified).
In State v. Jones, 284 Md. 232 (1979), we applied and reaffirmed these principles. There, we held that the trial court erred in admitting evidence that defendants charged with robbing a liquor store had committed two additional robberies within a short time frame. Id. at 243. We reiterated that “[i]n order to gain admission under this exception[,] it is necessary that the crimes ‘so relate to each other that proof of one tends to establish the other.’” Id. (quoting Cross, 282 Md. at 475). In other words, we explained, “there must be a causal relation or logical or natural connection among the various acts or they must form part of a continuing transaction to fall within the exception.” Id. at 244. Turning to
The above cases are examples where we determined that the evidence was not admissible under the common scheme or plan exception. In other cases, we have determined other bad acts evidence was admissible under the common scheme or plan exception. In some of those cases, we have determined that the evidence was admissible to prove another exception such as motive, identity, and intent, if they are in dispute. See, e.g., Ridgeway v. State, 140 Md. App. 49, 65–69 (2001), aff’d on other grounds, 369 Md. 165 (2002) (holding that evidence of a defendant’s firing of a gun into an apartment where he believed people he sought revenge against were located, was properly admitted to prove motive and as part of a common scheme or plan in his trial for subsequently shooting inhabitants of a trailer, whom he believed to be the same people); Epps v. State, 52 Md. App. 308 (1982) (holding that the trial court had not abused its discretion in denying the defendant’s severance motion that requested two counts of arson be severed from the three counts of first-degree murder, as they were evidence of defendant having set his girlfriend’s first residence on fire and established his motive and a common scheme to kill his girlfriend when he set her second residence on fire, which resulted in her death).
In Bell v. State, 234 Md. 254 (1964), this Court found no fault in the admission of evidence of the defendant’s sexual abuse of one young girl in a trial for his sexual abuse of
At trial, over the defendant’s objection, the court admitted defendant’s confession, in which he confessed not only to the offenses for which he was being tried, but also confessed to the crimes against his other stepchild on “various other dates.” Id. at 257. On appeal, the defendant argued that the trial court erred in admitting his confession into evidence “because it included the confession of offenses other than the one for which he was tried.” Id. at 256. This Court rejected the defendant’s argument and affirmed his conviction. Id. at 259.
We started by noting the general rule that “evidence of other crimes is not admissible,” and the exceptions to that rule “where the other crime is part of a common scheme or plan, or so linked in point of time or circumstances as to show intent or motive.” Id. at 257–58. We then turned to the legal framework applicable to admissibility of confessions. Id. at 258. We noted the general rule that the whole of a confession must be admitted, and that neither side can select the incriminatory or exculpatory portions. Id. We explained, however, that “where the relevant parts dealing with the crime charged can
Turning to the confession in question, we held that the trial court did not abuse its discretion in admitting the confession with an appropriate instruction to the jury to disregard the parts relating to the other girl. Id. “In the first place,” we observed that the defendant’s objection was too broad in that there was no effort on defense counsel’s part to limit or delete portions of the confession. “In the second place,” we noted that the “confession described sexual relations over a considerable period of time between the accused and each of the girls, both of whom were frequently present when sexual activities took place, and it would appear that the older girl took an active part in the seduction of the younger.” Id. at 258–59. We determined that “[i]t would have been difficult to separate the statements as to each and render them intelligible.” Id. at 259. We also observed that according to the confession, both girls were present when the incident that was the subject of the indictment took place. Finally, we determined that “[i]n any event,” “there was no prejudice shown” because the defendant “virtually conceded that the sexual acts with the younger girl took place[,]” and the “whole defense rested upon the plea of insanity.” Id.
There are several reported cases decided by the Appellate Court involving sex crimes in which other bad acts involving sex offenses were held to be inadmissible, or in
In McKinney v. State, the Appellate Court considered whether the trial court erred in consolidating three cases for trial, which resulted in the defendant’s conviction of third-degree sexual assault of the three victims. 82 Md. App. 111 (1990). There the defendant was a counselor at an outdoor education program. The victims, all female campers, alleged that the defendant had touched their breasts, buttocks, and vaginal areas, but the defendant “consistently denied” any misconduct. Id. at 115. On appeal, the Appellate Court held that the trial court erred in consolidating the cases for trial and reversed the judgment.
The court considered the “other crimes rule” and concluded that “the evidence as to each individual offense would not be mutually admissible at separate trials.” Id. at 119. The court reasoned that the evidence did “not tend to establish” any of the exceptions to the other crimes doctrine. Id. at 123. Significantly, the court determined that the “evidence of sexual contact” with each alleged victim did not fit within the common scheme or plan exception to the other crimes rule. Id. The court noted that the common scheme or plan exception could mean one of two things: “(1) a modus operandi, which is but one means of establishing identity”—which was not applicable in the case at hand—“or (2) a plan to commit one offense as part of grand scheme to commit others, such as a theft of nitroglycerine for use in blowing up a safe.” Id. at 124. Under the common scheme or plan context involving the latter scenario, the court held that in a separate prosecution of a defendant for sexual contact with one child, evidence of similar conduct with a different child “would not be relevant because it would not tend to prove that kind of common scheme.” Id.
In Behrel v. State, 151 Md. App. 64 (2003), the Appellate Court considered whether the trial court erred in admitting the testimony of a second victim of sexual abuse, “Miller,” during the trial in which the defendant, a former Episcopal pastor, was accused of sexually abusing a victim, “Curtis.” The victims were high school boarding students at a school where the defendant served as a chaplain. After the defendant was convicted in the Curtis trial, he alleged on appeal that the court erred in admitting Miller’s testimony because it constituted inadmissible “other crime” evidence under
Based upon our review of cases from this Court and the Appellate Court concerning common scheme or plan, we draw some general observations.
First, to be admissible under the common scheme or plan exception, it is not enough that the fact patterns underlying the different bad acts are similar. Cross, 282 Md. at 475. As reflected by our discussion above, in the context of other bad acts involving sex crimes, the Appellate Court has held that the common scheme or plan exception does not apply where the only link between the charged conduct and other bad acts was that they involved similar allegations but were otherwise not connected. See Behrel, 151 Md. App. at 131–32; Reidnauer, 133 Md. App. at 321; McKinney, 82 Md. App. at 124. Similarity between other bad acts is expected for acts undertaken by repeat offenders. Cross, 282 Md. at 475. When similarity is the only tie between the charged offense and different conduct, evidence
Second, although the most typical fact pattern for application of the common scheme or plan exception occurs where the uncharged bad acts are “committed in order to effect the primary crime for which the accused has been indicted,” Cross, 282 Md. at 476 (citation modified), our case law has never limited the common scheme or plan exception to circumstances in which the prior bad acts at issue were necessary to achieve the charged offense. In his brief, Mr. Spicuzza points to the “classic hypothetical” of “theft of nitroglycerine for use in blowing up a safe”—an example that the Appellate Court relied upon in McKinney, 82 Md. App. at 124. That fact pattern, although typical, is not necessary in order for other bad acts to be admissible as evidence of a common scheme or plan. See Cross, 282 Md. at 475–76 (explaining that to fall within the common scheme or plan exception, “the relationship between the time, place, circumstances or parties involved is such that the uncharged crime or crimes support the inference that there exists a single inseparable plan encompassing both the charged and uncharged crimes, typically, but not exclusively, embracing uncharged crimes committed in order to effect the primary crime for which the accused has been indicted[]” (emphasis added)).
Third, we have affirmed a defendant’s conviction where the trial court admitted evidence of sexual abuse of a girl in the defendant’s trial for sexual abuse of the girl’s older sister, in circumstances in which the two victims were often together when the sexual abuse took place “and it would appear that the older girl took an active part in the seduction of the younger.” Bell, 234 Md. at 259. In other words, our case law supports the admission
B. The Other Bad Acts Evidence Related to H.’s Minor Friends Was Admissible Under the Common Scheme or Plan Exception
Applying the common scheme or plan exception as set forth in our case law, we hold that the other crimes or other bad acts evidence of Mr. Spicuzza’s alleged sexual abuse and misconduct with H.’s friends falls within the common scheme or plan exception. The acts of abuse and misconduct described by H., A.L., and A.B. are not simply unrelated acts of abuse that are similar in nature. Rather, they are individual manifestations of a general plan in which Mr. Spicuzza used his daughter to lure her young friends into his apartment where he would ply them with vapes, alcohol, and marijuana, and watch pornography with them every time they came to his apartment, so that he could sexually abuse H. and engage in sexual criminal misconduct with her friends. Although the abuse against H. started prior to Mr. Spicuzza obtaining his apartment, it escalated in frequency and intensity—ultimately culminating in vaginal intercourse—over time as he established an atmosphere and culture conducive to sexual abuse of H. and committed other bad acts involving sexual misconduct with her friends.
A factfinder could determine that Mr. Spicuzza conceived of a general plan to groom8 H. and her minor friends by giving them intoxicating substances and exposing them
Mr. Spicuzza’s general plan included quid pro quo proposals for sexual favors to H. and her friends. For example, H. testified that on several occasions, Mr. Spicuzza asked her for oral sex in exchange for having her friends over or providing her with marijuana. On another occasion, A.L. testified that Mr. Spicuzza asked her for a sexual favor in exchange for money while in H.’s presence, and H. looked at A.L. and said, “Please, I really need the money.” A.L. told her no. In other words, Mr. Spicuzza leveraged H.’s relationship with her friends to receive sexual favors from H. He similarly attempted to leverage A.L.’s relationship with H. to sexually abuse A.L.
H. was the central figure in his general plan. A factfinder could determine that, through his manipulation and plying his daughter and her friends with intoxicating substances, while providing a place where H. and her friends had the “run of the mill,” Mr. Spicuzza used H. to lure her friends to his apartment so that he could sexually abuse or attempt to sexually abuse all of them. Without H., Mr. Spicuzza would not have had access to these young girls so that he could groom and abuse or attempt to abuse them in the privacy of his apartment.
To be sure, Mr. Spicuzza initially sexually abused his daughter before he moved into his apartment and had an opportunity to ply her with alcohol, drugs, and vapes. At that point, he may or may not have had a plan to abuse other girls in his apartment. That is irrelevant to the application of our common scheme or plan exception. None of our precedent suggests that a common scheme or plan needs to have been conceived at the outset of a defendant’s criminal conduct for evidence of other subsequent bad acts in furtherance of such a scheme to be admissible.
“Why-Is-She-Lying” Question and the “Opening the Door” Doctrine
A. Propriety of the Question
Next Mr. Spicuzza contends that the trial court erred in failing to grant a mistrial after the prosecutor asked him on cross-examination to tell the jury why his daughter would be lying about the abuse. The State responds by arguing that, even if the question was improper, Mr. Spicuzza opened the door to this question. Alternatively, the State argues that any error was harmless. The propriety of the State’s “why-is-she-lying” question, and its admissibility under the “opening the door” doctrine, are questions of law that we review de novo. State v. Heath, 464 Md. 445, 457 (2019).
As noted above, Mr. Spicuzza’s direct examination concluded with the following exchange with his attorney:
[Defense counsel:] Did you – sir, I think this might be my last question, okay? When you heard your daughter tell this jury all of those things that she said you did to her sexually, how did you feel? Tell the truth.
Before this Court, Mr. Spicuzza argues that the Appellate Court erred by (1) considering the State’s other bad acts evidence under a new theory that was not presented to the trial court, (2) determining in the first instance whether the evidence had “special relevance” under an alternative theory of admissibility, and (3) undertaking its own
[Mr. Spicuzza:] I – it it’s indescribable. I don’t know if any of you have children, but I don’t even think you could imagine what that feels like to sit here and listen to that. That is disgusting to hear that vile, false statement come from your daughter. I can’t -- I can’t describe it. Nor would I want you to feel what I feel. I wouldn’t wish that upon anybody.
[Defense counsel]: I don’t have any other questions.
The prosecution immediately began its cross-examination by asking Mr. Spicuzza to tell the jury why H. was lying:
[Prosecutor:] So, why is your daughter lying?
[Mr. Spicuzza:] So I believe she feels that I have destroyed her social life.
After Mr. Spicuzza answered the question, defense counsel asked to approach the bench and moved for a mistrial. Counsel stated that the question should be stricken because “it’s an inappropriate, inadmissible question to ask another witness to comment on the thought process of another witness.” The prosecutor responded that defense counsel had opened the door with his last question. The court agreed with the prosecutor, denied defense counsel’s motion for a mistrial, and overruled the objection.
For the following reasons, we hold that the State’s question to Mr. Spicuzza to speculate or opine on why his daughter was lying was impermissible as a matter of law. We further hold that the “opening the door” doctrine has no application because the “why-is-she-lying” question was inadmissible for reasons beyond relevance.
“In a criminal case tried before a jury, a fundamental principle is that the credibility of a witness and the weight to be accorded [to] the witness’[s] testimony are solely within
In Hunter, we cited, with approval, the Hawaii Supreme Court’s reasoning for not permitting “were-they-lying” questions:
“Such questions, referred to as ‘were-they-lying’ questions, are improper for the following reasons: (1) they invade the province of the jury, as determinations of credibility are for the jury; (2) they are argumentative and have no probative value; (3) they create a risk that the jury may conclude that, in order to acquit the defendant, it must find that a contradictory witness has lied; (4) they are inherently unfair, as it is possible that neither the defendant nor the contradictory witness has deliberately misrepresented the truth; and (5) they create a ‘no-win’ situation for the defendant: if the defendant states that a contradictory witness is not lying, the inference is that the defendant is lying, whereas if the defendant states that the witness is lying, the defendant risks alienating the jury . . . .”
397 Md. at 589 (quoting State v. Maluai, 108 P.3d 974 (Haw. 2005)). We proceeded to apply these principles to the “were-they-lying” questions that the prosecutor asked of the defendant. We determined that the questions were impermissible as a matter of law. We
In this case, the prosecutor’s question to Mr. Spicuzza was a classically impermissible “why-was-she-lying” question. It invaded the province of the jury to make Mr. Spicuzza assess his daughter’s credibility and was improper as a matter of law. It was also irrelevant—whether Mr. Spicuzza personally believes or disbelieves his daughter’s testimony is irrelevant. Not only was the question irrelevant, but it was inadmissible for other reasons, and therefore, was incompetent evidence. The question asked Mr. Spicuzza to speculate about H.’s opinions, motives, or thought processes. Mr. Spicuzza did not have personal knowledge about why his daughter would be lying, and it is therefore speculative.11
The State argues that the Appellate Court correctly determined that, even though the State’s question was inadmissible, it was permitted under the circumstances because Mr. Spicuzza “opened the door” when he testified on direct examination that his daughter made a “vile, false statement.”
“Incompetent evidence refers to evidence that is inadmissible for reasons other than relevancy.” Id. at 261. Accordingly, where the evidence is inadmissible for a reason other than relevancy, we have held that it is not admissible under the “opening the door” doctrine. See id. (holding that the State’s evidence of the defendant’s post-arrest silence was incompetent, not merely irrelevant, and consequently inadmissible under the “opening the door” doctrine); Clark, 332 Md. at 87 (holding that the defense’s incompetent hearsay evidence was inadmissible to neutralize the State’s prejudicial testimony).
Applying these principles here, the “opening the door” doctrine has no application to the “why-would-she-lie” question. As noted above, the question is improper for reasons other than simply being irrelevant. It was also (1) improper as a matter of law as it invades
To be sure, Mr. Spicuzza’s testimony that H.’s testimony contained the “vile, false statement” that he sexually abused her was improper and inadmissible. It expressed his belief that another witness, H., was lying. The proper way for the prosecutor to have handled Mr. Spicuzza’s non-responsive, improper, and inadmissible statement would have been to make an objection. The trial judge could have then sustained the objection and instructed the jury to disregard Mr. Spicuzza’s statement. Instead of making an objection, the prosecutor asked a question that is classically improper as a matter of law. This is not a scenario in which two wrongs make a right. Our cases have never opened the door so far as to admit incompetent evidence.
B. Harmless Error
Although we hold that the trial court erred in allowing the prosecutor to ask the “why-would-she-lie” question, we hold that, on this record, the error was harmless beyond a reasonable doubt.
In Dorsey v. State, 276 Md. 638, 658–59 (1976), this Court adopted the test for harmless error announced by the United States Supreme Court in Chapman v. California, 386 U.S. 18, 23 (1967). As adopted in Dorsey, the harmless error rule is:
[W]hen an appellant, in a criminal case, establishes error, unless a reviewing court, upon its own independent review of the record, is able to declare a belief, beyond a reasonable doubt, that the error in no way influenced the verdict, such error cannot be deemed “harmless” and a reversal is mandated. Such reviewing court must thus be satisfied that there is no reasonable possibility that the evidence complained of—whether erroneously admitted or excluded—may have contributed to the rendition of the guilty verdict.
We determine that the circuit court’s error here satisfies the high threshold for harmless error. As discussed above, immediately before the prosecutor asked Mr. Spicuzza why his daughter was lying, Mr. Spicuzza had accused her, without objection, of making a “vile, false statement” that hurt him so deeply he could not even “describe it.” He went further, telling the jury that he would not want them to feel what he felt and “wouldn’t wish that upon anybody.” Not only was it improper to ask why his daughter was lying, but it was also improper for Mr. Spicuzza to accuse his daughter of making a “vile, false statement.” In other words, all of the testimony was improper. Had there been an objection, it should also have been stricken. But when asked why his daughter was lying, Mr. Spicuzza posited that it may have been because “she feels that I have destroyed her social life.” Although the question was an improper one, the response was innocuous. Mr. Spicuzza was not caught without a response, he did not admit to an inability to identify a motive for her to lie, and he had already told the jury he believed she was lying. He also had testified on direct examination that H. protested his alleged prohibition of additional
The trial court’s error in not striking the improper question and answer was irrelevant in the context of the trial as a whole, especially concerning the otherwise overwhelming evidence against Mr. Spicuzza.
V
Character Evidence
Finally, we address Mr. Spicuzza’s contention that the trial court erred in barring his character witnesses from testifying. The State responds by pointing out that Mr. Spicuzza was not charged with an offense that would permit him to call character witnesses.
“We review a trial court’s decision to admit or exclude a character witness’s opinion for abuse of discretion.” Devincentz v. State, 460 Md. 518, 539 (2018). A trial court abuses its discretion when it adopts a view that no reasonable person would take. Id. Determining whether the court abused its discretion “usually depends on the particular facts of the case and the context in which the discretion was exercised.” Id. at 540 (citation modified). In this case, the State also asserts that Mr. Spicuzza’s character evidence was inadmissible under
Of course, like every other witness, a criminal defendant who takes the stand can be impeached with evidence that he or she has a “bad character for veracity.” Joseph F. Murphy, Jr. & Erin C. Murphy, Maryland Evidence Handbook, § 509[A] at 261 (5th ed. 2000, 2024 Cum. Supp.); see
Our case law is clear that where a criminal defendant is on trial for a veracity impeaching offense,13 the defendant may offer evidence of his or her good character for truthfulness after he or she testifies. Sahin v. State, 337 Md. 304, 307 (1995); Sippio v. State, 350 Md. 633, 664 (1998).
In adopting the minority view, we concluded that the charging document and the prosecutor’s evidence that the defendant committed a veracity impeaching offense is an attack on the defendant’s character for truthfulness. Id. at 322. Thus, just as a defendant is entitled to introduce evidence of character as a defense to a charge, see
“Unless ‘veracity’ is a relevant character trait of the crime for which the criminal defendant is on trial, however, the defendant’s appearance on the stand does not—of itself—‘open the door’ to evidence of the defendant’s character for the relevant character trait.” Maryland Evidence Handbook, § 509[A] at 261; see also Sahin, 337 Md. at 319
Mr. Spicuzza argues that a prosecutor’s direct attacks through cross-examination of a defendant can transcend mere contradiction and constitute impeachment on material facts akin to attacking a witness’s character for truthfulness. He contends that these principles were articulated by this Court over 150 years ago in Davis v. State, 38 Md. 15 (1873). He also contends that, in the context of the corresponding federal rule, in United States v. Dring, the Court of Appeals for the Ninth Circuit recognized that a witness’s character trait for truthfulness is admissible if a direct attack through cross-examination includes “strong accusations of misconduct and bad character.” 930 F.2d 687, 690–91 (9th Cir. 1991) (quoting McCormick § 49 at 117 (3d ed. 1984)); but see, e.g., United States v. Danehy, 680 F.2d 1311, 1314 (11th Cir. 1982) (“The mere fact that a witness is contradicted by other evidence in a case does not constitute an attack upon his reputation for truth and veracity.”).
Mr. Spicuzza also points out that the Advisory Committee note to Federal Rule of Evidence 608(a)—from which our
Unsurprisingly, the State disagrees with Mr. Spicuzza’s interpretation. The State points out that Davis was decided 100 years before our codification of the Maryland Rules of Evidence. The State asserts that Mr. Spicuzza’s interpretation is inconsistent with the plain language and structure of
We start our examination of the parties’ contentions with the plain language of
(1) In order to attack the credibility of a witness, a character witness may testify (A) that the witness has a reputation for untruthfulness, or (B) that, in the character witness’s opinion, the witness is an untruthful person.
(2) After the character for truthfulness of a witness has been attacked, a character witness may testify (A) that the witness has a good reputation for truthfulness or (B) that, in the character witness’s opinion, the witness is a truthful person.
Examining the structure of the subsections together, it is clear that (a)(1) defines what is meant by an “attack” for purposes of (a)(2). An “attack” on credibility, according to (a)(1), is where a character witness testifies “that the witness has a reputation for
Under the plain and unambiguous language of subsection (a), as well as its structure, character evidence is admissible as rebuttal evidence after a character witness testifies and attacks a defendant’s character for truthfulness. We further observe that the history of the rule supports our interpretation. From 1988 until 1993,
When
(1) the evidence must be in the form of opinion or reputation; (2) the evidence must relate to the previous witness’s general character for truthfulness or untruthfulness; not whether the witness is being truthful in the action being tried; and (3) rehabilitation by evidence of truthful character is only permitted after the previous witness’s veracity has been attacked.
(Emphasis added). The above rules history confirms our interpretation of the existing rule—character evidence for truthfulness under
Our interpretation is also consistent with the principles articulated in our case law, which permit a defendant who is charged with a veracity impeaching offense to admit evidence of his or her character for truthfulness after he or she is subject to cross-examination. See Sahin, 337 Md. at 307; Sippio, 350 Md. at 664. In those cases—which were decided after
Nor do we find support in the cases Mr. Spicuzza cites—Davis, 38 Md. 15 (1873) and Dring, 930 F.2d 687 (1991). Davis was decided at a time when Maryland law did not permit opinion evidence on a witness’s character trait for honesty. See Jensen v. State, 355 Md. 692, 701 (1999) (explaining that prior to the enactment of CJ § 9-115,14 “a character witness could testify only as to what he heard from others about the defendant’s reputation, and not to his opinion of the witness’s truthfulness[]”). It was only after the enactment of CJ § 9-115 in 1971 that a character witness could offer “evidence to prove character based on personal opinion.” Jensen, 355 Md. at 701 (quoting 1971 Md. Laws, Ch. 760, at 1634); see also Devincentz, 460 Md. at 541 (quoting Durkin v. State, 284 Md. 445, 448–49 (1979)) (noting that
In Dring, the Ninth Circuit Court of Appeals held that the district court did not err in denying the defendant’s request to present rehabilitative testimony. 930 F.2d at 692. In so holding, the court pointed out that the government did not “introduce opinion or reputation testimony to attack” the defendant’s “general character for truthfulness[,]” and it did not “present evidence of prior misconduct or corruption.” Id. Instead, the court explained, the government “merely emphasized inconsistencies between [the defendant’s] testimony and that of other witnesses.” Id. The court noted that “[v]igorous cross-examination, including close questioning of a witness about his version of the facts and pointing out inconsistencies with the testimony of other witnesses, does not necessarily trigger rehabilitation.” Id. at 691.
The court cited McCormick on Evidence § 49 for the proposition that a vigorous cross-examination or the presentation of contradictory evidence could trigger rehabilitation evidence “where such evidence amounts to the kind of indirect attack on truthfulness embodied by evidence of bad reputation, bad opinion of character for truthfulness, conviction of crime, or eliciting from the witnesses on cross-examination acknowledgement of misconduct which has not resulted in the conviction.” Id. at 693; see also McCormick on Evidence, ch. 5 § 47 (2025) (citing Dring for the proposition that “if the adversary has merely introduced evidence contradicting the facts to which the witness testified, most cases forbade a showing of the witness’s good character for truthfulness[]”); see also State v. Madigan, 122 A.3d 517, 524 (Vt. 2015) (“The critical question is whether the attack on the witness’s
Even if we were to agree with Mr. Spicuzza that our rules permit the introduction of character evidence for honesty in extraordinary circumstances in which the cross-examination of the defendant did not simply reveal inconsistencies but was tantamount to an attack on the defendant’s general character for truthfulness, that did not occur here.
In support of his assertion that an aggressive cross-examination was tantamount to an attack on his general character for truthfulness, Mr. Spicuzza points to the following evidence: (1) the prosecutor’s question regarding “why would H. lie”; (2) the discrepancy between H.’s testimony that Mr. Spicuzza bought her the sex toys, and his testimony that he bought the sex toys for his ex-girlfriend; and (3) the discrepancy between his testimony that he told H.’s friends’ parents about his work schedule and that the girls would be left alone after he left for work at 3:30 a.m.
When the prosecutor cross-examined Mr. Spicuzza about H.’s motive to lie and whether Mr. Spicuzza purchased the sex toys, the prosecutor was attacking the strength of the defense’s case on non-material points without impugning Mr. Spicuzza’s general character for truthfulness. During cross-examination, the prosecutor countered Mr. Spicuzza’s belief that H. fabricated the sexual abuse allegations because he told her that her friends could not come over anymore by asking Mr. Spicuzza questions that demonstrated that he relented and allowed A.L. to return to his home. In addition, after H. testified that Mr. Spicuzza bought her “sex toys” for her birthday, during the prosecutor’s cross-examination of Mr. Spicuzza, the prosecutor drew out Mr. Spicuzza’s contradictory
Other inconsistencies were brought out not during Mr. Spicuzza’s cross-examination, but in statements made by other witnesses. For example, Mr. Spicuzza testified during his direct examination that he did not know how to use an iPhone, and therefore, could not have deleted photographs from H.’s cellphone. Later, when his mother testified, she revealed that after Mr. Spicuzza’s cell phone was seized, he asked his mother if he could borrow her iPhone “so he could call work.” In contrast to evidence that a criminal defendant has a general character for untruthfulness, these inconsistencies are classic types of contradictions that arise when a criminal defendant who testifies on his own behalf has a “distinct pro-defense bias and a compelling interest in the outcome of the case.” Dring, 930 F.2d at 692.
In rebuttal, the prosecutor called A.B.’s father and A.L.’s parents, who testified that Mr. Spicuzza never mentioned his work schedule to them. Similarly, H.’s mother testified and provided contradictory testimony about the meeting that she and H. had with Mr. Spicuzza in the Walmart parking lot. Once again, these examples simply reflect that the State’s witnesses contradicted the defendant’s testimony and did not constitute an “attack on [the] defendant’s character for truthfulness sufficient to permit the defendant to introduce evidence of good character for truthfulness.” Sahin, 337 Md. at 316. Based upon
We further determine that, even if rehabilitation evidence had been admissible, the circuit court did not abuse its discretion in refusing to permit Mr. Spicuzza’s character witnesses to testify because the proffers lacked the necessary information or detail to establish that the witnesses had sufficient personal knowledge to opine about his honest character.
According to Mr. Spicuzza, to offer character evidence for truthfulness, the proponent needs “merely to elicit proof of how long and how well the witness has known the individual.” In Mr. Spicuzza’s view, the nature of his relationships with his witnesses—his parents, brother, and friends—“presupposed their personal knowledge,” obviating the need for a more detailed proffer. We disagree.
Presupposition does not satisfy the “core requirement” that, for a witness to offer a “personal assessment of another’s character[,]” “the witness must have personal knowledge of the individual.” Devincentz, 460 Md. at 544; see also
Based upon our review of the proffers, we agree that the proffers are virtually all the same and were geared toward his appropriateness with children, focused on how the witnesses interacted with him, and the length of time they had known him. They did not relay any connection to honesty. Accordingly, even assuming that the State had placed Mr. Spicuzza’s character for honesty in question, the trial court did not abuse its discretion in refusing to allow Mr. Spicuzza to present evidence of his honest character based upon the proffers.
VI
Conclusion
In conclusion, we hold that (1) the circuit court did not err in admitting other bad acts evidence under the common scheme or plan exception set forth in
JUDGMENT OF THE APPELLATE COURT OF MARYLAND AFFIRMED. COSTS TO BE PAID BY THE PETITIONER.
Evidence of other crimes, wrongs, or other acts . . . is not admissible to prove the character of a person in order to show action in the conformity therewith. Such evidence, however, may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, common scheme or plan, knowledge, identity, absence of mistake or accident, or in conformity with Rule 5-413.2
In Browne v. State, 486 Md. 169, 187, 305 A.3d 445, 455 (2023), we explained that “[t]he rationale behind the exclusion of other bad acts evidence when it is offered to show propensity is not that such evidence is irrelevant or has no probative force.” (Citation modified). Indeed, other bad acts evidence “has admitted probative value.” Id. at 187, 305 A.3d at 455 (citation modified).
With respect to the exceptions in
We have explained that the proponent of other bad acts evidence must fulfill three requirements before such evidence may be admitted: “(1) the evidence must be specially relevant; (2) the defendant’s involvement must be proved by clear and convincing evidence; and (3) the necessity for and probative value of the evidence must not be
In this case, I would conclude that the circuit court erred in admitting evidence of other crimes or other bad acts evidence of Mr. Spicuzza’s alleged sexual abuse and misconduct with his daughter’s friends under the common scheme or plan exception of
Mr. Spicuzza’s alleged sexual abuse and misconduct with his daughter’s friends on separate occasions do not relate to his sexual abuse of his daughter such “that proof of one tends to establish the other.” Id. at 475, 386 A.2d at 762 (citations omitted). This is especially so where, during Mr. Spicuzza’s sexual abuse of his daughter during the time after he moved into his apartment, his daughter’s friends were not present when the sexual abuse is alleged to have occurred, the friends have no firsthand knowledge of the abuse that occurred, and initially the abuse of the friends had not yet begun. Mr. Spicuzza’s abuse
Similarities in the offenses Mr. Spicuzza was alleged to have committed against his daughter and her friends are not sufficient to establish that a common scheme or plan existed such that evidence of his other bad acts with his daughter’s friends was specially relevant. We have recognized that “[t]he concurrence of common features . . . must be more than simply a manner of operation, which is possessed to some extent by most criminal recidivists.” Id. at 475, 386 A.2d at 762. “A method of operation is not, by itself, a common scheme, but merely a repetitive pattern.” Id. at 475, 386 A.3d at 762 (citation
Moreover, although evaluation of the admissibility of the bad acts evidence could stop with the determination that the evidence failed to satisfy any exception for
In addition, it cannot be said that the admission of the prior bad acts evidence did not influence the verdict and was harmless beyond a reasonable doubt. The primary issue in this case was whether Mr. Spicuzza sexually abused his daughter at all. Mr. Spicuzza denied that he abused anyone. So, the State’s case rested primarily on the jury’s credibility assessments of Mr. Spicuzza and his daughter and who it believed. It is entirely possible that a jury could have found that Mr. Spicuzza’s daughter’s testimony was more credible than Mr. Spicuzza’s because of her friends’ testimony about their alleged experiences with Mr. Spicuzza. The friends’ testimony bolstered the State’s case because it suggested that, if Mr. Spicuzza committed criminal offenses against his daughter’s friends, then it was likely that he also must have abused his own daughter. Stated otherwise, the jury easily could have concluded, based on the friends’ testimony, that Mr. Spicuzza had a propensity to commit sexual abuse of young girls, which is obviously what
In my view, the State’s contention that A.L.’s testimony was cumulative to the alleged unobjected to testimony of the daughter and A.B. (the other friend) and therefore was harmless is not persuasive. The testimony of the two friends was not altogether the same. A.L.’s testimony provided a different, more detailed account of Mr. Spicuzza’s alleged bad acts than that provided by other witnesses and included detailed testimony about the alleged sexual abuse of her by Mr. Spicuzza. Moreover, to the extent that it could be said that A.L.’s testimony was merely cumulative of A.B.’s, the alleged cumulative nature of the testimony was itself prejudicial where the case turned solely on the credibility of the State’s witnesses and Mr. Spicuzza. It is simply not possible to conclude beyond a reasonable doubt that the inadmissible bad acts evidence did not influence the jury’s verdict.4
For the above reasons, respectfully, I concur in part and dissent in part.
Accordingly, I respectfully concur in part and dissent in part, and I concur in the judgment affirming Mr. Spicuzza’s convictions.
I
In her opening statement, the prosecutor told the jury, “[t]his case is about you … weighing the credibility of the witnesses.” Defense counsel struck a similar note in his opening statement, telling the jury that H.’s accusations were “not true” and that Mr. Spicuzza was “falsely and wrongly accused[.]” Defense counsel previewed that Mr. Spicuzza would be testifying in his defense, thereby exposing “his entire life and word and body” to the jury.
Mr. Spicuzza denied that he ever gave alcohol to a minor in his apartment or purchased alcohol for a minor. He denied that he ever provided marijuana or vapes to any minor. He denied prohibiting H. and her friends from taking videos or photographs in his apartment. He denied showing pornography to H. or her friends. And he denied engaging in any sexual activity or other inappropriate conduct with H. or her friends.
After defense counsel concluded his questioning about the evidence the State had introduced during its case-in-chief, eliciting the denials from Mr. Spicuzza summarized above, the following colloquy occurred:
DEFENSE COUNSEL: [S]ir, I think this might be my last question, okay? When you heard your daughter tell this jury all of those things that she said you did to her sexually, how did you feel? Tell the truth.
MR. SPICUZZA: I – it – it’s indescribable. I don’t know if any of you have children, but I don’t even think you could imagine what that feels like to sit here and listen to that. That is disgusting to hear that vile, false statement come from your daughter. I can’t – I can’t describe it. Nor would I want you to feel what I feel. I wouldn’t wish that upon anybody.
DEFENSE COUNSEL: I don’t have any other questions.
The prosecutor then began her cross-examination of Mr. Spicuzza:
PROSECUTOR: So why is your daughter lying?
MR. SPICUZZA: So I believe she feels that I have destroyed her social life.
PROSECUTOR: Why would she feel that?
MR. SPICUZZA: Because I told –
At that point, defense counsel objected, moved “to strike the question and the answer,” and moved for a mistrial.
At a bench conference, the trial court commented:
Why is she lying? I don’t think that’s an inappropriate question to ask. He says she’s lying. Why would she lie? I mean, it’s a question she can ask him and he can say I don’t know. But he didn’t say I don’t know. He said I believe she’s – that he destroyed her social life. Follow-up question, why do you believe that?
In response, defense counsel argued that “the question itself should be stricken. It’s an inappropriate, inadmissible question to ask another witness to comment on the thought process of another witness.”
The prosecutor then interjected: “You just opened the door with the last question. He called her a liar. He just opened the door to that.” The trial court replied, “That’s exactly what happened,” overruled the objection, and denied the motion for a mistrial.
II
I agree with the Appellate Court that the defense opened the door to the State’s question, “So why is your daughter lying?”, although my reasoning differs from that of the Appellate Court.
Irrelevant evidence is never admissible.
The “opening the door” doctrine allows for evidence to be admitted that the opposing party has made relevant that otherwise would have been irrelevant. See, e.g., Grier v. State, 351 Md. 241, 260 (1998). “Incompetent evidence refers to evidence that is inadmissible for reasons other than relevancy.” Id. at 261. As such, the “opening the door” doctrine does not permit a court to admit incompetent evidence. Id. at 260-61.
In general, testimony about another witness’s credibility is inadmissible. See Bohnert v. State, 312 Md. 266, 278 (1988). This is because “the credibility of a witness and the weight to be accorded the witness’ testimony are solely within the province of the jury.” Id. at 277. This Court stated it is “error for the court to permit to go to the jury a statement, belief, or opinion of another person to the effect that a witness is telling the truth or lying.” Id. Thus, “[w]hen prosecutors ask ‘were-they-lying’ questions, especially when they ask them of a defendant, they, almost always, will risk reversal.” Hunter v. State, 397 Md. 580, 596 (2007).
Defense counsel asked Mr. Spicuzza at the end of his direct examination, “When you heard your daughter tell this jury all of those things that she said you did to her sexually, how did you feel? Tell the truth.” Defense counsel did not ask Mr. Spicuzza if he believed H. was lying about Mr. Spicuzza having sexually abused her. Rather, defense counsel was asking Mr. Spicuzza about his feelings after having heard H.’s testimony. Despite the fact that Mr. Spicuzza had taken an oath to be truthful throughout his testimony, defense counsel specifically instructed Mr. Spicuzza to “[t]ell the truth” when describing
In answering his attorney’s question, Mr. Spicuzza described having feelings of disgust but went further, and said that H. had made a “vile, false statement”:
I – it – it’s indescribable. I don’t know if any of you have children, but I don’t even think you could imagine what that feels like to sit here and listen to that. That is disgusting to hear that vile, false statement come from your daughter. I can’t – I can’t describe it. Nor would I want you to feel what I feel. I wouldn’t wish that upon anybody.
Had the prosecutor objected and moved to strike the part of Mr. Spicuzza’s answer that referred to a “vile, false statement … from your daughter” on the ground of relevance, perhaps the trial court would have instructed the jury to disregard it.
However, the prosecutor did not object. Instead, she began her cross-examination of Mr. Spicuzza by asking, “So why is your daughter lying?” Mr. Spicuzza answered: “So I believe she feels that I have destroyed her social life.” Defense counsel objected and moved to strike the question and answer.
The Majority concludes that the trial court erred in not striking the prosecutor’s question and Mr. Spicuzza’s answer for two reasons. First, according to the Majority, the prosecutor’s question was improper because it invaded the province of the jury to assess H.’s credibility. Second, the Majority opines that the question asked Mr. Spicuzza to
The problem with the Majority’s analysis is that it misapprehends the purpose of the prosecutor’s question. The prosecutor’s question was not probing H.’s credibility. When the prosecutor asked Mr. Spicuzza, “Why is your daughter lying?”, it was not because she wanted to determine why H. was lying. Everyone understood that the State’s position was that H. was not lying. It was clear that, instead, the prosecutor was probing Mr. Spicuzza’s credibility. Thus, although the prosecutor phrased the question as “So, why is your daughter lying?”, it was clear that, in essence, she was asking Mr. Spicuzza, “So, what is your theory about why your daughter is lying?” The prosecutor was exploring Mr. Spicuzza’s theory as to why, if H.’s allegations were false and if Mr. Spicuzza and H. had maintained an appropriate father-daughter relationship, H. would make such a “vile, false statement” in court – a statement that, if believed, could land her father in jail for many years. Was she suffering from mental illness? Had false memories been planted in her mind during counseling?3 Had H.’s mother or one of H.’s friends put her up to it because they
This case was all about credibility. As the prosecutor observed in her opening statement, “[t]his case is about … the jury weighing the credibility of the witnesses.” The State had no forensic evidence to present, so witness credibility was central to the trial. This explains why, in his opening statement, Mr. Spicuzza’s attorney cast H.’s accusations as “not true” and claimed that Mr. Spicuzza was “falsely and wrongly accused.” It also explains Mr. Spicuzza’s decision to testify, exposing, in his counsel’s words, “his entire life and word and body” to the jury. When Mr. Spicuzza’s attorney asked him to “tell the truth” about how he felt hearing H.’s testimony, defense counsel linked Mr. Spicuzza’s feelings to his credibility as a witness. Defense counsel’s focus on Mr. Spicuzza’s state of mind upon hearing H.’s testimony as a measure of his credibility opened the door to the
For the same reasons, the prosecutor’s question did not ask Mr. Spicuzza to provide incompetent evidence. It was clear from the context that the prosecutor was attempting to impeach Mr. Spicuzza by further exploring his subjective feelings and beliefs. As discussed, the prosecutor was not actually attempting to learn why H. lied. It is immaterial that the prosecutor did not first ask Mr. Spicuzza a foundational question to determine the basis for Mr. Spicuzza’s theory for why H. was lying.
Justice Gould and Justice Eaves have authorized me to state that they join this opinion.
I.
The first error is the trial court’s admission of propensity evidence in violation of
At trial, the State’s theory of special relevance rested on an instrumental link: that Mr. Spicuzza used H.’s friends to lure and intoxicate her, subduing her to facilitate the abuse. On that account, Mr. Spicuzza’s conduct with A.L. and A.B. was the “means,” and the abuse of H. was the “end.” The chronology established at trial forecloses that theory, and the Majority discards it. Instead, the Majority recasts the State’s theory at a higher level of generality—a single plan to groom and sexually abuse H. and her friends alike
The State failed to show there was a common scheme or plan. What it showed was Mr. Spicuzza’s method of predation and a disposition to abuse the girls within his reach. The common scheme or plan exception to such evidence is not satisfied by mere connection or similarity. Two crimes may share an actor, a place, and overlapping people and still be two crimes. They form a single scheme only when each is a step toward one objective, so that “proof of one tends to establish the other.” Cross v. State, 282 Md. 468, 475 (1978). The paradigm is the theft of nitroglycerine to blow a safe, McKinney v. State, 82 Md. App. 111, 124 (1990), the uncharged crime is admitted because it was “committed in order to effect the primary crime for which the accused has been indicted.” Cross, 282 Md. at 476 (internal quotations and citations omitted). Another example is stealing a security badge on Monday in order to gain access to a building on Tuesday to rob it. Here, Mr. Spicuzza did not rape his daughter in order to abuse her friends. Nor did he commit his alleged uncharged crimes against A.L. or A.B. in order to rape his daughter. Mr. Spicuzza abused his daughter for years, before her friends appeared. And, importantly, H. was not a “nexus” who facilitated any abuse of A.L. or A.B.
H. testified that the abuse began while her father was still living with his parents, where he resided until February 2020. The abuse continued after he moved into his own apartment. However, A.B. did not spend time at that apartment until the summer of 2021—
The Majority contends “that a common scheme or plan need[] [not be] conceived at the outset of a defendant’s criminal conduct for evidence of other subsequent bad acts in furtherance of such a scheme to be admissible.” Maj. Slip Op. at 51. That is true, but beside the point—there must still be a plan. Whether a plan forms early or crystallizes midway, there must still be a design under which separate acts become steps toward a single end. Consider a defendant who sets out to break into a building, stumbles across an unattended security badge, and steals it to gain access; the theft of the badge becomes a step in the scheme. Here, no such moment exists because there is no unifying objective at all.
The Majority asserts that “[w]ithout H., Mr. Spicuzza would not have had access to these young girls so that he could groom and abuse or attempt to abuse them in the privacy of his apartment.” Id. at 50. That statement is undoubtedly true—if they were not friends with H., Mr. Spicuzza would never have met them—but that does not make H. a part of any design or plan. It is also legally beside the point. It mistakes access for design, and opportunity for a scheme. Access explains how a predator comes into contact with potential victims; it does not transform distinct, independent acts of abuse into a single, integrated plan. A middle school teacher has access to students only through his employment, and a coach has access to players only through the team. Yet no court would
The Majority grounds its holding in Cross v. State, 282 Md. 468 (1978), asserting that a factfinder could view the abuse of A.L. and A.B. as “individual manifestations” of a “general plan to abuse H. and any other underage girls H. would bring to Mr. Spicuzza’s apartment.” Maj. Slip Op. at 51. This argument fundamentally misconstrues both Cross and the nature of a
A standing inclination to exploit “any girl” who enters an apartment is not a “plan”; it is a propensity. Under Cross, “individual manifestations” of a “general plan” refers to discrete, interconnected steps designed to achieve a specific, overarching end. 282 Md. at 475–76. It does not mean a generalized, open-ended intention to commit similar crimes against whoever happens to come within reach. To define a “plan” by such open-ended target selection collapses the boundary between character evidence and a common scheme.
Plying A.L. with vapes was not a step toward abusing H., nor did it advance any unified criminal scheme. It was simply an independent act of alleged misconduct carried out using Mr. Spicuzza’s preferred method. Relabeling a recurring technique as a “general plan” to abuse “any girl” present allows the State to introduce pure character evidence under the banner of an exception, eviscerating the very protection
The Majority points to testimony that Mr. Spicuzza demanded fellatio from H. “in exchange for having her friends over[.]” Maj. Slip Op. at 50. Granting that testimony in full, it shows only that he held leverage over H. and exploited it to abuse her. The thing of value in that bargain was the friends’ presence, not their abuse. The exchange ties the abuse of H. to the girls being allowed to visit; it says nothing of the girls being harmed. That he allegedly abused them once they arrived is a separate matter—it happened because
If anything, the record runs the opposite way. The friends’ presence did not make the abuse possible; it is what brought the abuse to light. A.L. told her mother in February 2022, and the arrest followed within weeks. There is thus no “causal relation or logical or natural connection” among these acts, State v. Jones, 284 Md. 232, 244 (1979), nor is there a “single inseparable plan encompassing both the charged and uncharged crimes,” Cross, 282 Md. at 476 (internal quotations and citation omitted).
The Majority correctly recognizes that the personal relationship among victims does not mark the line between inadmissible propensity evidence and a common scheme under
Nor does Bell bear the weight the Majority places on it. The nexus in Bell was of a wholly different kind. There, the older sister took “an active part in the seduction of the younger[,]” conduct so intertwined that one victim’s abuse could not be described without the other’s. 234 Md. at 258–59. That is active participation in the charged episodes themselves, not the mere furnishing of access. H. supplied nothing of the sort. She was not present when her friends were abused, they were not present when she was, and she neither witnessed nor participated in any abuse of A.L. or A.B. To read Bell’s “facilitating” to reach a victim who did no more than bring her friends within his reach is to erase the very line McKinney and Behrel drew. Such a rule guts the limits
Stripped of its label, the State’s evidence is pure propensity: the defendant did these things to his daughter’s friends, so he must have done them to his daughter. That is the exact inference
II.
The second error is the “why-would-she-lie” question.
I agree with the Majority that the State’s question—“So, why is your daughter lying?”—was impermissible as a matter of law, and that the opening-the-door doctrine has no application to it. See Maj. Slip Op. at 54–58. Opening the door is a rule of relevance. It admits competent evidence that an opponent’s proof has made relevant; it has never admitted evidence that is incompetent for reasons apart from relevance. Grier v. State, 351 Md. 241, 260–61 (1998); Clark v. State, 332 Md. 77, 87 (1993). A “why-is-she-lying” question is incompetent for reasons that have nothing to do with relevance—it hands the jury’s own function to the witness, and it calls for pure speculation. Hunter v. State, 397 Md. 580, 588–89 (2007); Bentley v. Carroll, 355 Md. 312, 338 (1999).
That agreement is where the Majority’s path and mine separate. An error that goes to the very determination on which the case turned—whether to believe H. or Mr. Spicuzza—is not one I can call harmless.
The State bears the strict burden of establishing, beyond a reasonable doubt, that an error “in no way influenced the verdict[.]” Dorsey v. State, 276 Md. 638, 658–59 (1976). In reviewing a cold record, we are not permitted to find facts or re-weigh credibility to save a tainted conviction. Bellamy v. State, 403 Md. 308, 332 (2008). Reversal is mandatory unless the State can exclude the possibility that the error played any role whatsoever in the jury’s rendition of guilt. Id. The State cannot carry that heavy burden here.
The Majority concludes that this error satisfies the high threshold for harmlessness because Mr. Spicuzza had already labeled H.’s claims a “vile, false statement” on direct examination. Maj. Slip Op. at 59. If the State believed Mr. Spicuzza’s direct testimony exceeded permissible bounds, its remedy was to object and move to strike. Its failure to object does not license cross-examination that our cases squarely prohibit.
Nor can the error be excused on the ground that Mr. Spicuzza’s response was “innocuous.” Id. When forced by the prosecutor to explain why his daughter would fabricate a claim of rape, Mr. Spicuzza posited that “she feels that I have destroyed her social life.” The Majority observes that the defendant was not caught flat-footed and managed to offer a motive. This misconstrues the Dorsey standard. Harmlessness is not measured by whether the defendant kept his composure under an improper question. The harm is embedded in the improper question itself.
By forcing the defendant to provide a reason for his accuser’s fabrication—which the Majority admits was error—the State executed an impermissible burden-shifting maneuver. The question signaled to the jury that a complaining witness’s testimony must
The central question in this trial was a pure credibility contest. Mr. Spicuzza denied everything. The case turned entirely—as it did in Bohnert v. State, 312 Md. 266 (1988)—on “the jury’s determination of the credibility of two witnesses, the accuser and the accused[,]” id. at 273.
Both errors bore on that delicate credibility determination, and it cannot be said that the errors did not influence the jury’s verdict of guilty. The inadmissible other bad acts evidence told the jury that Mr. Spicuzza is the kind of man who preys on teenage girls. The “why-would-she-lie” question told the jury that unless he could supply a compelling reason for H. to lie, her testimony must be true. Between them, the two errors stripped Mr. Spicuzza of the presumption of innocence and implicitly transferred the State’s burden of proof onto his shoulders.
The limiting instruction did not cure the prejudice of the evidence admitted as evidence of a common scheme and plan. The jury was told it could consider the pornography and the intoxicating substances “only on the question of common scheme or
Finally, the Majority deems the improper “why-would-she-lie” question harmless in light of the “otherwise overwhelming evidence” against Mr. Spicuzza. Maj. Slip Op. at 59–60. But the evidence looks overwhelming only because it counts A.L.’s and A.B.’s testimony among the proof. I would not. Set that testimony aside, and what remains is H.’s account, denied in full by Mr. Spicuzza. One cannot build an “overwhelming evidence” argument on the very testimony that should not have been admitted in the first place; a reviewing court may not use the weight of erroneously admitted evidence to prove that a separate error was harmless.
Nor was A.L.’s testimony cumulative. She alone described waking in the night to find Mr. Spicuzza attempting to sexually assault her, freezing, retreating to another room, and being coaxed back toward his bedroom. No other witness said anything like that. A.L.’s testimony was the most inflammatory evidence the jury heard outside of H.’s own testimony—and it detailed a new, uncharged crime involving A.L. as the victim for which Mr. Spicuzza was not on trial. Indeed, this is precisely the prejudice that accompanies the improper admission of other victim testimony; the Appellate Court recognized in McKinney that any trier of fact “who might doubt one child’s testimony about the type of
I would reverse and remand for a new trial. The General Assembly has enacted CJP § 10-923, and at oral argument the State contended that the alleged common scheme and plan evidence could have been admissible under that statute. Perhaps it could be. That is a determination for the trial court to make in the first instance, on a proper motion, under the standards set forth in
Respectfully, I dissent.
Notes
[DEFENSE COUNSEL]: I just assume Your Honor is ready for a continuing objection to the 404(b) motion. Is that correct?
THE COURT: Yes.
[THE STATE]: Yes.
THE COURT: I said that.
(Emphasis added). The circuit court’s response demonstrates that, as far as it was concerned, Mr. Spicuzza’s counsel had already established a continuing objection to A.B.’s testimony. I also agree with the Majority’s discussion concerning preservation with respect to the common scheme or plan evidentiary issue. See Maj. Slip Op. at 25-31. Because I would hold the evidence inadmissible as common-scheme proof, I would also reject any affirmance resting on the delayed-disclosure theory the State first advanced on appeal. The probative value of other bad acts evidence depends on the contested issue for which it is offered and on how the trial actually unfolded, and
Sexual offense in the third degree prohibits, among other things, “engag[ing] in sexual contact with another if the victim is under the age of 14 years, and the person performing the sexual contact is at least 4 years older than the victim[.]”
As to the offense of sexual abuse of a minor, the statute prohibits a “parent or other person who has permanent or temporary care or custody or responsibility for the supervision of a minor [from causing] sexual abuse to the minor.”
At that time I had not remembered very clearly. I assumed he had done more stuff but I did not remember so I did not want to put it out there that he had done that without knowing for sure that he did.
But with therapy and like talking about it had helped me like – like sometimes when severe trauma happens I block out things in my brain and I assume I did that with that because I didn’t want him to like look like the bad guy in my brain. So I had, had had [my therapist] help me like talk about it and I’m a lot more open with it now and which has even helped me even more to remember things.
[Defense counsel]: Your Honor, may we approach real quick?
The Court: Come on up.
[Defense counsel]: I just assume Your Honor is ready for a continuing objection to the 404(b) motion. Is that correct?
The Court: Yes.
[Prosecutor]: Yes.
The Court: I said that.