DARRELLED WESTLEY v. STATE OF MARYLAND
No. 2474
In the Court of Special Appeals of Maryland
July 2, 2021
Opinion by Fader, C.J.
September Term, 2019; Circuit Court for Wicomico County Case No. C-22-CR-18-000440; Reported
Darrelled Westley v. State of Maryland, No. 2474, September Term, 2019. Opinion by Fader, C.J.
SEXUAL OFFENSES — EVIDENCE — RAPE SHIELD STATUTE — APPLICATION TO NONCONSENSUAL CONDUCT
Maryland‘s Rape Shield Statute,
SEXUAL OFFENSES — EVIDENCE — RAPE SHIELD STATUTE — EXCEPTIONS
Evidence excluded by the Rape Shield Statute may nonetheless be admissible if its exclusion would violate a criminal defendant‘s constitutional rights.
SEXUAL OFFENSES — CONSTITUTIONAL RIGHTS — DUE PROCESS AND CONFRONTATION CLAUSES — SEXUAL INNOCENCE INFERENCE THEORY
In Maryland, evidence of a child victim‘s prior sexual abuse that is excluded by the Rape Shield Statute may not be admitted to counter a presumption of sexual innocence unless: (1) the court determines that the facts of the case give rise to a presumption of the victim‘s sexual innocence that if unrebutted might lead a reasonable jury to conclude that the defendant committed the crime at issue; (2) the proffered evidence would rebut that presumption; and (3) the inflammatory or prejudicial nature of the evidence does not outweigh its probative value.
REPORTED
IN THE COURT OF SPECIAL APPEALS OF MARYLAND
No. 2474
September Term, 2019
DARRELLED WESTLEY
v.
STATE OF MARYLAND
Fader, C.J., Ripken, Moylan, Charles E., Jr. (Senior Judge, Specially Assigned), JJ.
Opinion by Fader, C.J.
Filed: July 2, 2021
Darrelled Westley, the appellant, was convicted of multiple counts of sexual abuse of a minor, other sex offenses, and assault against his wife‘s niece (“Victim“), who was 12 years old at the time of the relevant events.1 Mr. Westley argues that the circuit court erred by excluding evidence of Victim‘s prior sexual abuse, which he contends was necessary to rebut the jury‘s natural presumption that Victim would not have possessed sufficient sexual knowledge to fabricate her allegations against him. We hold that the court neither erred nor abused its discretion in excluding the evidence because it was barred by the Rape Shield Statute and unnecessary to protect Mr. Westley‘s constitutional rights. In doing so, we conclude that the Rape Shield Statute‘s limitation on the admission of evidence of specific instances of a victim‘s prior sexual conduct extends to both willing and unwilling prior sexual conduct, and that the facts presented here did not raise a presumption of sexual innocence that this evidence was necessary to rebut.
Mr. Westley also contends that even if the court‘s decision to exclude the evidence was correct initially, the court erred by not permitting its introduction later based on the State having opened the door and pursuant to the doctrine of verbal completeness. Because we do not agree that the State opened the door or that the doctrine of verbal completeness mandated admission of the challenged evidence, we discern no error or abuse of discretion in the court‘s rulings excluding it.
Finally, Mr. Westley asks this Court to reverse his conviction for child abuse by a person responsible for supervising a minor because of insufficient evidence. We will hold that the evidence was sufficient for a reasonable jury to conclude beyond a reasonable doubt that Mr. Westley was a person responsible for supervising Victim. Accordingly, we will affirm all of Mr. Westley‘s convictions.
BACKGROUND
Victim‘s Stay with the Westleys
In May 2018, Victim‘s mother (“Mother“) asked her sister, Jessica Westley, to take care of Mother‘s five children for two weeks that June, while Mother and her husband would both be incarcerated. Among the five siblings were Victim and her 11-year-old brother (“Brother“). Ms. Westley, who had cared for the children previously, discussed the request with her husband, Mr. Westley, and the couple then agreed to the two-week stay.
At the time, the Westleys were living in a small room, which one witness described as being half the size of the court‘s jury box, on the second floor of a boarding house in Salisbury. The room held, at various times, an air mattress, television, and dresser. The Westleys, the children, and an uncle—Ivan Conway, Ms. Westley‘s and Mother‘s brother—all slept together in the room. It was Mother‘s understanding that the Westleys would care for the children during this period, including taking them
When Mother left prison after two weeks, she retrieved her children. At that time, Mr. Conway conveyed something to Mother that prompted her to contact Stephanie Fleming, a social worker at the Child Advocacy Center (“CAC“) with whom the family was already familiar, and then bring Victim to speak with Ms. Fleming. The accusations Victim made in those interviews led to Mr. Westley‘s arrest and to the State charging him with two counts of sex abuse of a minor and one count each of second-degree rape, sex offense in the third degree, sex offense in the fourth degree, and assault in the second degree.
Trial Testimony
The evidence at trial consisted of testimony by Victim, Mother, Brother, Mr. Conway, and Ms. Fleming, as well as redacted excerpts of two recorded interviews of Victim conducted by Ms. Fleming. The redacted excerpts from the interviews were played for the jury and transcripts were also provided. Mr. Westley did not call any witnesses.
Victim testified that during her stay with the Westleys, she, Brother, and another sibling attended a day camp but were otherwise in the care of the Westleys. Beginning “[a] couple days after” arrival, at night while everyone else was asleep, Mr. Westley took off her clothes, touched her “butt,” and used “his mouth” to touch her “private” and “boobs[.]” She also said that he used his penis to touch the “outside” of her “private,” his hand to touch the “inside” and “outside” of her “private,” and that sometimes the touching would occur when he followed her to the bathroom. In excerpts from the interviews with Ms. Fleming, Victim stated that the touching had occurred “[m]ore than ten” times, Mr. Westley had touched her “butt” with his penis once, and Mr. Westley‘s penis was brown and white “stuff was coming out” of it.
When asked who watched her children while she was in jail, Mother testified that it was “Jessica Westley and Darrelled Westley.” She testified that her sister had been around the children for their entire lives, that she was familiar with caring for them, and that the children had known Mr. Westley since he and Ms. Westley married several months before their stay. Before Ms. Westley agreed that the children could stay with her and Mr. Westley, she “talked it over with her husband, so he knew about it, too.” Mother expected the children to be cared for by both her sister and Mr. Westley.
Brother testified that he once saw Mr. Westley “touching on” Victim in the room while the others were sleeping. He observed Mr. Westley touching Victim‘s “butt” and “titties” while she “was kind of awoke . . . [a]nd kind of asleep.” The day after he observed that conduct, Brother reported it to Mr. Conway.
Mr. Conway testified that he had slept on the floor in the same room with the Westleys and the children, and, on at least one occasion, he saw Victim go to the bathroom with Mr. Westley following shortly after. Mr. Conway described how one day after work, Brother told him about Mr. Westley‘s conduct with Victim. Mr. Conway then decided to stay at the residence “the entire time after that information came out because [Victim] was afraid to be alone during the day.” Mr. Conway confronted Mr. Westley about the accusations but was satisfied by Mr. Westley‘s assurances that nothing had happened.
Victim‘s description of Mr. Westley‘s conduct varied between her trial testimony and her recorded statements to Ms. Fleming. For example, although Victim testified
At the conclusion of the State‘s case, the court denied Mr. Westley‘s motion for judgment of acquittal on all counts but determined that there was insufficient evidence to instruct the jury that it could premise a conviction for second-degree rape on a use of force.2 The jury returned a verdict of guilty on all counts except for second-degree rape.
Excluded Evidence of Prior Sexual Abuse
Before trial, the State moved in limine to preclude Mr. Westley from presenting evidence about prior sexual abuse of Victim by a different uncle, Charles Darnell Quails. The prosecutor stated that the disputed evidence would show that Mr. Quails abused Victim and Mr. Quails‘s daughter, another minor, over the course of several weekends during the summer before Mr. Westley‘s alleged acts, when Victim was 11 years old. Before her stay with the Westleys, Victim had met with Ms. Fleming at the CAC and reported that Mr. Quails had touched her breasts and private parts, rubbed his penis on her bottom, used his mouth on her, and put his penis inside her private parts.3
In its written motion, the State argued that the Rape Shield Statute barred presentation of the prior abuse evidence. However, in arguments before the motions court, the State retreated from its reliance on the Rape Shield Statute, stating that it had come to consider the statute inapplicable to prior nonconsensual sexual conduct based on this Court‘s holding in Shand v. State, 103 Md. App. 465, 480-81 (1995) (”Shand I“), aff‘d, 341 Md. 661 (1996). Nonetheless, the State argued that the statute‘s spirit should guide the court and that the evidence should be excluded under traditional evidentiary rules because it was irrelevant and the risk of unfair prejudice substantially outweighed any possible probative value.
Mr. Westley agreed that the Rape Shield Statute was inapplicable. He further argued that the testimony was admissible under traditional evidentiary rules and was essential to his defense. He contended that based on the similar allegations against the two men, the evidence would establish that Victim had an independent basis of sexual knowledge on which she could have relied to formulate the graphic allegations against Mr. Westley, making it more likely that she fabricated her present accusations.
The motions court granted the State‘s motion and excluded the evidence. It accepted the parties’ shared position that the Rape Shield Statute did not apply to nonconsensual acts. The court concluded, however, that the proffered evidence was not relevant and even if it were, that the danger of unfair prejudice substantially outweighed
During trial, Mr. Westley twice moved to admit the excluded evidence based on the State‘s introduction of evidence that Victim had met with Ms. Fleming before the incident involving Mr. Westley. The trial court denied both motions. Background relating to those motions and the court‘s disposition of them will be provided below.
Following his convictions, Mr. Westley filed this timely appeal.
DISCUSSION
Mr. Westley challenges the court‘s grant of the State‘s motion in limine to exclude evidence about Victim‘s prior abuse as well as the trial court‘s continued refusal to admit the same evidence after the State allegedly opened the door. Separately, he argues that the evidence was insufficient to support his conviction for child abuse by a person responsible for supervising a minor. We discern no error or abuse of discretion in the court‘s evidentiary rulings and conclude that the evidence was sufficient to sustain his conviction. Accordingly, we will affirm.
I. MARYLAND‘S RAPE SHIELD STATUTE APPLIES TO EVIDENCE OF PRIOR ABUSE.
Mr. Westley, the State, and ultimately the circuit court all agreed that pursuant to this Court‘s decision in Shand I, Maryland‘s Rape Shield Statute is applicable only to evidence of prior willing sexual conduct and that the statute was therefore inapplicable to the evidence of sexual abuse at issue here. On appeal, the State argues that the Rape Shield Statute is not so limited and that it provides the proper framework for analyzing the admissibility of the disputed evidence. We agree that the Rape Shield Statute applies. As we will explain, to the extent Shand I could be interpreted as Mr. Westley does, the reasoning of that decision did not survive the Court of Appeals’ further review in that case. See Shand v. State, 341 Md. 661 (1996) (”Shand II“). First, however, we must begin with an exploration of the Rape Shield Statute itself and its relevant legislative history. Ultimately, based on our review of Shand I and II, the statute, and its legislative history, we will conclude that the Rape Shield Statute applies to a victim‘s prior sexual conduct regardless of whether such conduct was willing.4
Maryland‘s Rape Shield Statute, currently codified at
- the evidence is relevant;
- the evidence is material to a fact in issue in the case;
- the inflammatory or prejudicial nature of the evidence does not outweigh its probative value; and
- the evidence:
- is of the victim‘s past sexual conduct with the defendant;
- is of a specific instance of sexual activity showing the source or origin of semen, pregnancy, disease, or trauma;
- supports a claim that the victim has an ulterior motive to accuse the defendant of the crime; or
- is offered for impeachment after the prosecutor has put the victim‘s prior sexual conduct in issue.
Here, the determination of whether evidence of Victim‘s prior abuse fell within the scope of subsection (b) of the Rape Shield Statute turns on whether it is evidence of her “prior sexual conduct.” Resolving that question is a matter of statutory interpretation, the goal of which “is to discern and carry out the intent of the Legislature.” Aleman v. State, 469 Md. 397, 421 (2020). To achieve that goal, “[w]e begin with an examination of the text of a statute within the context of the statutory scheme to which it belongs, then typically review the legislative history to confirm conclusions or resolve ambiguities, and finally may consider the consequences of alternative interpretations of the statute.” Id.
In our interpretation, we “first look[] to the normal, plain meaning of the language of the statute, reading the statute as a whole to ensure that no word, clause, sentence or phrase is rendered surplusage, superfluous, meaningless or nugatory.” Berry v. Queen, 469 Md. 674, 687 (2020) (quoting Brown v. State, 454 Md. 546, 551 (2017)). In so doing, “[o]ur inquiry is not confined to the specific statutory provision at issue on appeal. Instead, ‘[t]he plain language must be viewed within the context of the statutory scheme to which it belongs[.]‘” Berry, 469 Md. at 687 (quoting Johnson v. State, 467 Md. 362, 372 (2020)). That context may include the statute‘s “relationship to earlier and subsequent legislation, and other material that fairly bears on the fundamental issue of legislative purpose or goal, which becomes the context within which we read the particular language before us in a given case.” Berry, 469 Md. at 687 (quoting Blackstone v. Sharma, 461 Md. 87, 114 (2018)).
A statute may be ambiguous in two ways. One is “when the ‘words of a statute are . . . subject to more than one reasonable interpretation[.]‘” Blackstone, 461 Md. at 113 (quoting State v. Bey, 452 Md. 255, 266 (2017)). The other is “where the words are clear and unambiguous when viewed in isolation, but become ambiguous when read as part of a larger statutory scheme[.]” Id. In either case, “a court must resolve the ambiguity by searching for legislative
the structure of the statute, including its title; how the statute relates to other laws; the legislative history, including the derivation of the statute, comments and explanations regarding it by authoritative sources during the legislative process, and amendments proposed or added to it; the general purpose behind the statute; and the relative rationality and legal effect of various competing constructions.
Lillian C. Blentlinger, LLC v. Cleanwater Linganore, Inc., 456 Md. 272, 295 (2017) (quoting Bellard v. State, 452 Md. 467, 482 (2017)). In addition, we must “consider the consequences resulting from one meaning rather than another, and adopt that construction which avoids an illogical or unreasonable result, or one which is inconsistent with common sense.” Blackstone, 461 Md. at 114 (quoting Spangler v. McQuitty, 449 Md. 33, 50 (2016)).
A. Plain Meaning of Criminal Law § 3-319
We begin with the text. The Rape Shield Statute does not define “prior sexual conduct[.]” We therefore look to dictionary definitions, which provide “an essential starting point because the ‘ordinary, popular understanding of the English language dictates interpretation of [the statute‘s] terminology.‘” Berry, 469 Md. at 688-89 (quoting Johnson, 467 Md. at 372); see also Couret-Rios v. Fire & Police Employees’ Ret. Sys. of City of Baltimore, 468 Md. 508, 530 n.8 (2020) (“Although dictionary definitions do not provide dispositive resolutions of the meaning of statutory terms, dictionaries do provide a useful starting point for determining what statutory terms mean, at least in the abstract, by suggesting what the legislature could have meant by using particular terms.” (quoting Marriott Emps. Fed. Credit Union v. Motor Vehicle Admin., 346 Md. 437, 447 (1997))).
The word “prior,” as relevant here, means “earlier in time or order.” Prior, Merriam-Webster‘s Collegiate Dictionary 988 (11th ed. 2003).
The word “sexual” is not defined independently in the statute, but
“Conduct” is also not defined in the statute. Black‘s Law Dictionary defines “conduct” as “[p]ersonal behavior, whether by action or inaction, verbal or nonverbal[.]” Conduct, Black‘s Law Dictionary 369 (11th ed. 2019). Black‘s also provides several additional definitions with modifiers, including “active conduct,” which is “[b]ehavior that involves a person doing something by exerting will on the external world,” and “passive conduct,” which is “[b]ehavior that does not involve exerting will on the external world.” Id. at 369-70. Other dictionaries define conduct, when used as a noun, as “the manner in which a person behaves, esp[ecially] on a particular occasion or in a particular context,” Conduct, New Oxford American Dictionary 362, or as “a mode or standard of personal behavior esp[ecially] as based on moral principles,” Conduct, Merriam-Webster‘s Collegiate Dictionary 259. Those definitions of “conduct” include behavior that can be either active or passive.
Because definitions of “conduct” generally incorporate “behavior,” we also consider definitions of that word. Behavior is defined as “the way in which one acts or conducts oneself, esp[ecially] toward others,” “the way in which an animal or person acts in response to a particular situation or stimulus,” Behavior, New Oxford American Dictionary 150; or “the manner of conducting oneself,” “anything that an organism does involving action and response to stimulation,” and “the response of an individual, group, or species to its environment,” Behavior, Merriam-Webster‘s Collegiate Dictionary 111. These definitions include actions engaged in both volitionally and in response to external stimuli, thus suggesting that the concept encompasses both willing and unwilling actions.
In analyzing the plain language of a statute, we do not view the words in a vacuum. Instead, “[t]he plain language ‘must be viewed within the context of the statutory scheme to which it belongs, considering the purpose, aim or policy of the Legislature in enacting the statute.‘” Johnson, 467 Md. at 372 (quoting State v. Johnson, 415 Md. 413, 421 (2010)). These “become[] the context within which we read the particular language before us in a given case.” Neal v. Baltimore City Bd. of Sch. Comm‘rs, 467 Md. 399, 415 (2020) (quoting Blackstone, 461 Md. at 114). Accordingly, we find it notable that the Rape Shield Statute addresses two different categories of evidence. Subsection (a) concerns general reputation or opinion evidence concerning a victim‘s chastity or abstinence, which the General Assembly has determined to be categorically inadmissible. We can presume that such evidence, which is not necessarily tied to any specific instance of conduct, would necessarily be limited in scope to a victim‘s reputation for engaging in sexual activity willingly, because unwilling engagement would not reflect at all on chastity or abstinence.
Subsection (b), by contrast, is concerned not with reputation or opinion evidence but with evidence of the occurrence of “a specific instance of a victim‘s prior sexual conduct,” which we will refer to as “specific instances evidence.” Structurally, subsection (b) stands independent of subsection (a) in that it addresses a different type of evidence.7 The two subsections are complementary,
instances evidence could apply equally to willing and unwilling sexual activities does not mean that the prohibition itself necessarily covers both types of activities, but it is significant that nothing in the language or structure of subsection (b) itself is indicative of an intent to limit the prohibition only to evidence of willing engagement in sexual activities.
It is also notable that
Read in conjunction with the context and structure of
B. Legislative History
The Rape Shield Statute was originally enacted in 1976 primarily in response to trial courts of the time sometimes admitting evidence of a victim‘s lack of chastity in rape cases when consent was a defense. See Johnson v. State, 332 Md. 456, 464 (1993) (listing examples of such cases, including Giles v. State, 229 Md. 370, 379-80 (1962), vacated and remanded on other grounds, 386 U.S. 66 (1967), and Humphries v. State, 227 Md. 115, 121 (1961)). The Court of Appeals subsequently identified two purposes of the Rape Shield Statute as: (1) “to protect rape victims from unscrupulous defense attorneys who try to shift the focus away
reflect[] recognition that the trial process at best is traumatic to the victim of sexual abuse. If [victims have] reason to believe the most intimate details of [their] li[ves] are going to be bandied about the courtroom, many victims will decide the game is not worth the candle and decline to file a complaint.
Id. at 634 (quoting Goodson v. State, 566 So. 2d 1142, 1149-50 (Miss. 1990)).
The Report of the Senate Judicial Proceedings Committee on Senate Bill 399 identifies the purpose of the bill as
to preclude admission into evidence of opinion and reputation evidence as to the chastity of the victim of a sexual offense; and to limit the admission of evidence concerning specific instances of the victim‘s prior sexual conduct; and thereby lessen the likelihood of exacerbating the psychological injury already suffered by the victim of a sexual offense.
Report of Md. Senate Judicial Proceedings Committee on Senate Bill No. 399, at 1 (1976) (“Report of S.B. 399“).8 That statement indicates that the dual elements of the bill—
excluding opinion and reputation evidence and limiting the admission of specific instances evidence—were both intended to reduce the trauma of victims of sexual offense during the trial process. The report cited then-State Senator Steny Hoyer, Chair of the special committee whose efforts led to the legislation, as identifying that the bill addressed “the plight of the victim of a rape,” a large number of whom did not report the offenses. Id. at 2. The framers of the law intended that the “[d]iminution of degrading practices subsequent to the report of a rape would result in a greater willingness of a victim to seek criminal redress against the attacker.” Id.
According to the Senate Report, only the prohibition on use of reputation or opinion evidence concerning chastity or abstinence and the procedural requirements for use of specific instances evidence were new. Id. at 2, 3. The Report noted that the exceptions to the general limitation against use of specific instances evidence “presently exist[ed] in case law[.]” Id. at 1; see also J. William Pitcher, Legislation: Rape and Other Sexual Offense Law Reform in Maryland — 1976-1977, 7 U. Balt. L. Rev. 151, 156 (1977) (“The list of exceptions to the ban on evidence of specific instances of the victim‘s prior sexual activities was, in reality, a codification of the common law, and thus constituted no substantive change.“). Nonetheless, the committee‘s identification of the new law‘s benefits appeared to focus more on the benefits of limiting specific instances evidence. Among other observations, the committee said that “limiting evidence relating to prior sexual conduct of
a rape victim . . . would probably result in an increase in the percentage of rapes reported.”
Report of S.B. 399, at 4. It also found
that a statutory response to the inherent sensitivities of a traumatized victim could accommodate the constitutionally mandated rights and protections properly afforded a defendant in our criminal
justice system; and that the weighing of inflammatory nature versus the probative value of evidence of specific instances of prior sexual conduct precludes possible admission of highly prejudicial evidence of limited probative value.
The legislative history reflects that the General Assembly intended to protect victims of sexual offenses from the introduction of humiliating evidence about their past, except in the rare circumstances when such evidence was necessary to a defendant‘s legitimate defense, for the purposes of: (1) encouraging victims of sex crimes to report them; (2) avoiding further trauma to victims who do report such crimes; and (3) avoiding confusing juries and diverting their attention from the defendant‘s guilt or innocence with the introduction of evidence of limited or no probative value, but which is highly prejudicial or inflammatory.
Each of these purposes is served by interpreting the scope of “prior sexual conduct” to include unwilling sexual conduct. To be sure, the prospect that reporting a sexual crime could force a victim to relive on the witness stand the circumstances of a prior sexual crime would discourage victims from coming forward. And the risk of jury confusion from the introduction in one sexual offense trial of evidence of a different sex crime by another perpetrator is great. Moreover, we recognize the argument that some victims of prior abuse or rape may be uniquely prone to psychological harm by exposing that history in public. See Pitcher, supra, at 163 (stating that one goal demonstrated by the legislative debate in enacting the original bill was to “lessen[] the likelihood of exacerbating the psychological injury already suffered“). We also doubt that the General Assembly might have believed a victim‘s privacy and reputation would be worth protecting when engaging in willful sexual conduct but not when such conduct was forced upon the victim.10
C. Shand I and Shand II
Mr. Westley‘s primary argument that the Rape Shield Statute applies only to willing sexual conduct is premised on this Court‘s statement in Shand I “that ‘sexual conduct,’ as that term is used in Maryland‘s Rape Shield Law, requires physical contact indicating a willingness to engage in either vaginal intercourse or a sexual act.” 103 Md. App. at 480-81 (footnotes omitted). Even if Mr. Westley properly interprets that statement—and, as we explain below, we are not convinced that he does—the Court of Appeals’ decision in Shand II rejected the reasoning underlying his interpretation of it. Explaining why requires further exploration of the decisions.
In Shand I, the defendant in a rape prosecution sought to introduce evidence that two weeks before the alleged rape, the victim had offered to exchange sex with the defendant for drugs. Id. at 477. The defendant argued that the evidence was admissible as “[e]vidence of the victim‘s past sexual conduct with the defendant“—one of the four exceptions to the application of the Rape Shield Statute‘s specific instances limitation11—in
The Court proceeded to analyze whether the evidence could nonetheless constitute reputation or opinion evidence and be excluded on that basis. Although the Court acknowledged that it had previously held that specific instances evidence was not within the scope of the statute‘s provision addressing reputation or opinion evidence, id. at 482-83 (citing Lucado v. State, 40 Md. App. 25, 39 (1978)), the Court was not satisfied that that distinction served the legislative purpose of avoiding humiliation of victims of sexual crimes and encouraging them to come forward, Shand I, 103 Md. App. at 483. To address that deficiency, the Court crafted an exception to allow the exclusion of “evidence of specific instances not involving physical contact indicating a willingness to engage in vaginal intercourse or a sexual act . . . as evidence relating to a victim‘s chastity.” Id. In doing so, the Court effectively enlarged the scope of the prohibition against admission of reputation or opinion evidence to include the specific instances evidence that it had just determined fell outside the scope of the specific instances provision itself.
The Court of Appeals agreed on the ultimate outcome—that the circuit court had been correct to exclude the proffered evidence—but on a different rationale. Before addressing the scope of either subsection of the Rape Shield Statute, the Court determined that the proffered evidence was irrelevant even under traditional evidentiary principles because there had been no evidence introduced of an exchange of sex for drugs on the night of the rape. Shand II, 341 Md. at 673. Absent such a basis, the Court discerned that evidence that the victim had previously offered or entertained such an exchange was irrelevant and so was properly excluded. Id.
The Court then turned to this Court‘s decision, which it found incorrect in two respects: (1) in “constru[ing] ‘sexual conduct’ in the Statute to require physical contact indicating a willingness to engage in either vaginal intercourse . . . or a sexual act“; and (2) in “constru[ing] the Statute‘s prohibition against reputation and opinion evidence as to chastity to include specific acts.” Id. at 674-75. The Court provided no further discussion or analysis with respect to the second error, but it seems apparent that the Court viewed the two provisions of the Rape Shield Statute as distinct, with one addressing reputation and opinion evidence
With respect to the first error, looking to dictionary definitions of “conduct,”12 the Court concluded that “[t]he act of making an offer to another person is certainly conduct” and that an offer to engage in sexual activity can constitute sexual conduct. Id. at 675. The Court also viewed as significant the General Assembly‘s choice of the word “conduct,” rather than other phrases used elsewhere in the statute that had “strong[er] physical connotations.” Id. at 675-76. After citing several cases from other jurisdictions reaching the same conclusion, the Court held that “sexual conduct” need not be physical and that an offer to exchange sex for drugs was “sexual conduct” subject to analysis under the Rape Shield Statute. Id. at 677-80.
Mr. Westley contends that because the Court of Appeals in Shand II did not expressly disavow this Court‘s statement that evidence of “sexual conduct” necessarily must indicate a “willingness to engage in vaginal intercourse or a sexual act,” Shand I, 103 Md. App. at 483, this Court remains bound by that interpretation of the statute. We disagree. In identifying this Court‘s two errors in interpreting the Rape Shield Statute, the Court of Appeals described the first as “constru[ing] ‘sexual conduct’ in the Statute to require physical contact indicating a willingness to engage in either vaginal intercourse . . . or a sexual act[.]” Shand II, 341 Md. at 674-75. Although the Court‘s subsequent discussion focused on the “physical contact” aspect of that construction—which was the only aspect that was relevant there—the disagreement applied to the entire construction. That construction thus did not survive Shand II.
Furthermore, even if Shand II had not resolved the issue, it is not clear to us that Mr. Westley‘s interpretation of the construction in Shand I would have been correct. Notably, this Court‘s statement in Shand I was made in the context of analyzing whether the evidence of an offer to trade sex for drugs fell within the statute‘s exception for specific instances of sexual conduct evidence pertaining to “the victim‘s past sexual conduct with the defendant[.]” 103 Md. App. at 474, 478. It was in that context that this Court understandably construed “sexual conduct” as needing to have “special relevance to the defense of consent.” Id. at 480. We have no qualms with that conclusion as it pertains to the exception for consent. As explained above, however, we see no reason to read any such limitation into the phrase “prior sexual conduct” outside the context of that exception, and we find it notable that the statute‘s three other exceptions have no necessary link to consent. Shand I thus does not require us to interpret “prior sexual conduct” as limited only to conduct in which the victim has willingly engaged.
In sum, we hold that based on the plain language, purpose, and context of the Rape Shield Statute, “prior sexual conduct” within the scope of subsection (b) includes all sexual conduct, whether willing or not.
Turning back to our case, because evidence of Victim‘s prior assault by Mr. Quails was evidence of “a specific instance of a victim‘s prior sexual conduct,” and Mr. Westley sought to admit it in his prosecution for sexual abuse of a minor, the evidence should have been analyzed under the framework of the Rape Shield Statute. To be admissible under the statute, prior evidence of sexual conduct must meet each of four criteria. It must: (1) be relevant; (2) be material; (3) have probative value that is not outweighed by its inflammatory or prejudicial nature; and (4) fit within one of four identified exceptions. See
A. The Rape Shield Statute Precluded Evidence of Victim‘s Prior Abuse.
We will address the somewhat more involved issues of relevance and prejudice further below, but it is sufficient to resolve the statutory question to note that the evidence of Victim‘s prior assault by Mr. Quails is not admissible under the Rape Shield Statute because it does not fit within any of the four exceptions that would permit its introduction as Victim‘s “prior sexual conduct.” The prior abuse evidence (i) did not involve sexual conduct with Mr. Westley; (ii) did not reveal the source or origin of semen, pregnancy, disease, or trauma; (iii) was not alleged to support a claim of an ulterior motive to accuse Mr. Westley; and (iv) was not offered for impeachment after the prosecutor put Victim‘s prior sexual conduct in issue. See
That conclusion, however, does not end our inquiry, because Mr. Westley contends that excluding the evidence violated his constitutional rights to due process and to confront his accuser. If he is correct, then the Rape Shield Statute could not stand in the way of him introducing the evidence in his own defense. We turn now to that contention.
B. Mr. Westley Did Not Have a Constitutional Right to Introduce Evidence of Victim‘s Prior Sexual Assault.
Mr. Westley contends that he had a constitutional right to present evidence of Victim‘s prior sexual assault because that evidence was necessary to rebut a presumption of sexual innocence that the jury would naturally hold; that is, a presumption by the jury that Victim, at 12 years old, “was too sexually innocent to fabricate the charges, which in turn would have made it possible, and therefore more likely, that she fabricated them.” As discussed further below, we hold that before admitting such evidence, a court must assess on a case-by-case basis whether the exclusion of such evidence would violate the defendant‘s constitutional rights. The first step in that analysis requires an assessment of whether the facts of the case actually give rise to a presumption of sexual innocence. If so, the court must then determine whether the evidence proffered actually rebuts the presumption. Finally, the court must assess whether the prejudicial or inflammatory nature of the evidence outweighs its probative value. Here, because we conclude that the facts did not give rise to a presumption of sexual innocence, we conclude that the evidence was
The four circumstances in which specific instances of a victim‘s prior sexual conduct may be admitted under
By potentially limiting a defendant‘s case, rape shield statutes can collide with a defendant‘s right to confront one‘s accuser and the right to due process. The right to due process derives in part from a criminal defendant‘s implicit constitutional right to testify in his or her own defense. United States v. Dunnigan, 507 U.S. 87, 96 (1993); Dallas v. State, 413 Md. 569, 588-90 (2010) (Bell, C.J., concurring in part) (recognizing the same right applies in Maryland courts). For purposes of state criminal proceedings, the right to testify arises out of the
Notably, however, the rights are not absolute. A defendant‘s
right to present a defense, albeit fundamental, is nonetheless subject “to two paramount rules of evidence, embodied both in case law and in
Maryland Rules 5-402 and5-403 . The first is that evidence that is not relevant to a material issue is inadmissible. The second is that, even if relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.”
Holmes v. State, 236 Md. App. 636, 668 (2018) (emphasis omitted) (quoting Taneja v. State, 231 Md. App. 1, 11 (2016)). In applying these concepts to uphold a notice provision in a
The theory that Mr. Westley relies on to establish the relevance of evidence of Victim‘s prior sexual assault is sometimes referred to as the “sexual innocence inference” theory. See Clifford S. Fishman & Jeannine Rustad, Child abuse cases: Admissibility on source of knowledge, in 3 Clifford S. Fishman & Anne T. McKenna, Jones on Evidence § 19:60 (7th ed. 2020).
The theory is based on the premise that because most children of tender years are ignorant of matters relating to sexual conduct, a child complainant‘s ability to describe such conduct may persuade the jury that the charged conduct in fact occurred. To demonstrate that the child had acquired sufficient knowledge to fabricate a charge against the defendant, the theory reasons, the court should allow the defense to offer evidence that the child acquired sexual experience with someone else before he or she accused the defendant.
Clifford S. Fishman, Consent, Credibility, and the Constitution: Evidence Relating to a Sex Offense Complainant‘s Past Sexual Behavior, 44 Cath. U. L. Rev. 709, 806 (1995). The argument that a child has alternative sources of knowledge is not always attached to an argument that the victim is fabricating charges, but it often is. See, e.g., State v. Oliver, 760 P.2d 1071, 1074 (Ariz. 1988); State v. Howard, 426 A.2d 457, 462 (N.H. 1981); State v. Clarke, 343 N.W.2d 158, 162 (Iowa 1984).
No Maryland appellate court has previously addressed whether a defendant has a constitutional right to introduce evidence to rebut a child‘s presumed sexual innocence. Other states’ courts have split on the admissibility of such evidence, whether deciding on constitutional grounds, as an unenumerated specific instances exception under a rape shield statute, or based on the application of traditional rules of evidence. A minority of courts have ruled such evidence to be broadly admissible. In State v. Howard, for example, after upholding the constitutionality of the state‘s rape shield statute, 426 A.2d at 460-61, the
Similarly, in State v. Jacques, which involved five- and ten-year-old victims, the Maine Supreme Court observed that “[w]here the victim is a child . . . the lack of sexual experience is automatically in the case without specific action by the prosecutor. A defendant therefore must be permitted to rebut the inference a jury might otherwise draw that the victim was so naive sexually that she could not have fabricated the charge.” 558 A.2d 706, 708 (Me. 1989); see also State v. Carver, 678 P.2d 842, 843-44 (Wash. Ct. App. 1984) (holding that defendant should have been permitted to introduce evidence of prior abuse of victims described as “little girls” “to rebut the inference that the only way two young girls would have knowledge of such sexual matters was because the defendant had sexually abused them as charged“); Summitt v. State, 697 P.2d 1374, 1375 (Nev. 1985) (holding that trial court erred in excluding evidence of the six-year-old victim‘s prior sexual experience offered “to show that the young victim had had prior independent knowledge of similar acts which constituted the basis for the present charge“).
Other courts have generally rejected the admissibility of such evidence and, in doing so, have questioned the validity of the theory underlying it. For example, in State v. Clarke, the Iowa Supreme Court held that evidence that a “relatively young” complainant had previously engaged in oral sex was properly excluded. 343 N.W.2d at 162-63. The court held that the evidence was “at most, of very marginal probative value,” and that “[i]t certainly does not constitute evidence whose probative value outweighs the substantial danger of unfair prejudice, confusion of issues, misleading of the jury, and invasion of complainant‘s privacy which . . . rape shield laws are designed to prevent.” Id. at 163. Similarly, in People v. Arenda, the Michigan Supreme Court held that evidence of a child victim‘s prior sexual conduct with others was properly excluded because “[a] jury is unlikely to consider a witness‘s ability to describe sexual conduct as an independent factor supporting a conviction.” 330 N.W.2d 814, 817-18 (Mich. 1982). The court observed that unlike the categories of evidence made admissible under rape shield statutes, a victim‘s source of knowledge “need not be acquired solely through sexual conduct,” and could be explored through less prejudicial types of evidence. Id. at 818. Moreover, the court observed that the sexual innocence theory would likely be relevant only to very young children, and that such children “are among the persons whom the [rape shield] statute was designed to protect.” Id.
In contrast to these seemingly all-or-nothing approaches, most states have not categorically approved or disapproved the admission of evidence of prior sexual conduct
In State v. Pulizzano, the Wisconsin Supreme Court held that to establish a constitutional right to present “evidence of a child complainant‘s prior sexual conduct for the limited purpose of proving an alternative source for sexual knowledge,” a defendant would be required to
make an offer of proof showing: (1) that the prior acts clearly occurred; (2) that the acts closely resembled those of the present case; (3) that the prior act is clearly relevant to a material issue; (4) that the evidence is necessary to the defendant‘s case; and (5) that the probative value of the evidence outweighs its prejudicial effect.
456 N.W.2d 325, 335 (Wis. 1990). Applying those factors in that case, the court concluded that the trial court had improperly excluded evidence that the seven-year-old complainant had previously been sexually assaulted where the prior assault “involved acts similar to those alleged here“; “[t]he inference that [the victim] could not possess the sexual knowledge he does unless [the defendant] sexually assaulted the children greatly bolsters [the victim]‘s allegations“; and the inference could only be rebutted by “establish[ing] an alternative source for [the victim]‘s sexual knowledge.” Id. at 329, 334-35.
And in Commonwealth v. Appenzeller, a Pennsylvania intermediate appellate court held that the trial court properly precluded a defendant from introducing testimony of prior sexual abuse of a three-year-old victim where no foundation was laid “that her knowledge of sexual techniques and nomenclature was derived from the contact with appellant and his co-conspirator.” 565 A.2d 170, 171 (Pa. Super. Ct. 1989); see also Oliver, 760 P.2d at 1077 (creating two-prong test in which defendant must first prove that the victim had previously been exposed to a sexual act and then show that the prior sexual act was sufficiently similar to serve as a basis for present
We join the majority of state courts that have considered this issue in determining that when a defendant seeks to admit evidence of a victim‘s prior sexual conduct to dispel a presumption of sexual innocence, a court must assess on a case-by-case basis whether the exclusion of such evidence would violate the defendant‘s constitutional rights. In making that assessment, a court must first determine if the facts of the case actually give rise to a presumption of sexual innocence. In doing so, a court should consider, among other relevant factors, the age of the child, the maturity of the sexual behavior alleged, whether the child‘s allegations necessarily suggest sexual knowledge beyond what a child of that age would presumedly possess, whether the State has introduced evidence suggestive of sexual innocence, and whether there is other evidence that the victim possessed sexual knowledge before reporting the conduct at issue. A court should not presume sexual innocence merely because the complainant is a minor. If the minor‘s allegations do not suggest sexual knowledge that is necessarily beyond the child‘s age and the State has not introduced evidence suggesting sexual innocence, then evidence introduced to counter such a presumption is irrelevant and must be excluded.
If a court determines that the facts of the case would give rise to a presumption of sexual innocence, the court must then determine whether the proffered evidence actually rebuts the presumption. Doing so requires a comparison between the allegations of the prior sexual activity and those involved in the case at hand. If the comparison does not reflect sufficient similarity such that the prior conduct would dispel a presumption of sexual innocence, then the evidence of the prior conduct would not rebut the presumption and should be excluded as irrelevant.
Finally, the court must assess whether “the inflammatory or prejudicial nature of the evidence . . . outweigh[s] its probative value[.]”
Although there may be an age at which such a presumption could arise without additional proof, we find no fault in the motions court‘s assessment that a jury would be aware that there are other sources from which a 12-year-old could have obtained such rudimentary sexual knowledge. Children are routinely taught that touching private body parts is inappropriate and should be reported, school-based sexual education programs provide relevant information,15 and many 12-year-old children have access to ubiquitous mass and social media containing sexual content.16 See Commonwealth v. Rathburn, 532
N.E.2d 691, 695-97 (Mass. App. Ct. 1988) (affirming preclusion of evidence of prior sexual abuse of child who was 10 and 11 years old at the time of the offenses and 13 years old at the time of trial, in part because her testimony “did not demonstrate ‘extraordinary knowledge’ of sexual acts or sexual matters in general“); Christopher B. Reid, Note, The Sexual Innocence Inference Theory as a Basis for the Admissibility of a Child Molestation Victim‘s Prior Sexual Conduct, 91 Mich. L. Rev. 827, 852 n.138 (1993) (citing studies suggesting that most children begin to mature physically at about age twelve). And although the motions court properly made its decision preliminary, subject to reopening at trial if the State presented evidence suggestive of sexual innocence, no such evidence was introduced.17 As a
Even if we concluded that Mr. Westley had identified a presumption of sexual innocence, and assuming for purposes of analysis that the allegations of the two incidents were sufficiently similar so as to offer some probative value, we would hold that the motions court did not abuse its discretion in concluding that any probative value was outweighed by the inflammatory and prejudicial nature of the evidence. We have already explored the significant prejudice attendant to introducing evidence of a victim‘s past sexual abuse, as well as the public policy interest in protecting victims from such trauma, which is reflected in the Rape Shield Statute. See White, 324 Md. at 634 (identifying testimony of past sexual conduct as “inva[sive of] the victim‘s privacy” and “traumatic to the victim of sexual abuse” (quoting Goodson v. State, 566 So. 2d 1142, 1150 (Miss. 1990))). An additional risk of unfair prejudice is that the jury might have unreasonably concluded that Victim was inherently less credible because she had made multiple allegations of sexual abuse.18 See generally Reid, supra, at 856-59 (discussing the prejudicial effect of such evidence on the jury‘s assessment of a child victim‘s credibility).
That heightens the already significant risk of jury confusion inherent from injecting into a sexual abuse trial unrelated allegations of sexual abuse of the same victim by a different perpetrator. See White, 324 Md. at 634 (noting that one purpose of rape shield statutes is to preclude testimony that would unreasonably “deflect[] the jury‘s attention from the true issue” (quoting Goodson, 566 So. 2d at 1150)).
For all these reasons, we hold that the trial court did not err, abuse its discretion, or violate Mr. Westley‘s constitutional rights by excluding evidence of Victim‘s prior sexual abuse.19
III. THE STATE DID NOT OPEN THE DOOR AT TRIAL TO PRIOR ABUSE EVIDENCE.
Mr. Westley argues that even if the motions court did not err in excluding evidence of Victim‘s prior abuse before trial, the trial court twice erred in continuing to exclude it. First, Mr. Westley contends that the State opened the door to evidence of Victim‘s prior sexual abuse
The opening the door doctrine “offers relief when ‘one party introduces evidence that was previously irrelevant, over objection, and in doing so, makes relevant an issue in the case,’ permitting the trial court to determine that the first party ‘opened the door’ for the second party to offer evidence in response[.]” In re J.H., 245 Md. App. 605, 640 (2020) (quoting State v. Heath, 464 Md. 445, 467 (2019)). Notably, however, the responsive evidence must have been rendered relevant by the evidence that purportedly opened the door. “The doctrine does not allow, for example, ‘injecting collateral issues into a case or introducing extrinsic evidence on collateral issues.‘” Heath, 464 Md. at 459 (quoting Clark v. State, 332 Md. 77, 87 (1993)). Moreover, a court may still exclude “‘inadmissible responsive evidence’ . . . when its[] evidentiary value is surpassed by its ‘danger of unfair prejudice, [tendency to confuse] the issues, or mislead[] the jury, or by consideration of undue delay, waste of time, or needless presentation of cumulative evidence.‘” In re J.H., 245 Md. App. at 641 (second alteration in original) (quoting Clark, 332 Md. at 87); see also
The relevant episode occurred during the State‘s direct examination of Victim. After Victim testified that Mother took her to see Ms. Fleming at the CAC following the alleged incident with Mr. Westley, the prosecutor asked whether that was the first time she had met Ms. Fleming. Victim responded that it was not. The prosecutor then asked when they had met previously but promptly struck the question.20
Mr. Westley did not object to either question or to Victim‘s response to the first one. During cross-examination, however, he argued that the questions had opened the door for him to inquire as to the reason for Victim‘s prior meetings with Ms. Fleming. The court ruled that the reference was too fleeting and inconsequential to permit a full inquiry into the previous event. Mr. Westley now contends that Victim‘s remarks opened the door because, without further inquiry, the jury was permitted to speculate that the prior meeting might have concerned additional wrongdoing by Mr. Westley, particularly as the jury had already heard that CAC‘s services involved “treating and prosecuting victims of child abuse, sex abuse, and neglect.”
As an initial matter, we observe that Mr. Westley‘s argument is not that Victim‘s testimony opened the door to evidence of the prior assault by suggesting a need to rebut a suggestion of sexual innocence. Instead, his argument is premised on the fundamentally different notion that the jury may have presumed that Victim had previously been sexually assaulted by Mr. Westley. With that in mind, we agree with the trial court that the State‘s testimony
The second incident Mr. Westley argues justified admission of evidence of Victim‘s prior assault is premised on the doctrine of verbal completeness. Mr. Westley contends that when the court admitted a redacted video and transcript of a CAC interview, which contained unexplained references to Victim previously meeting with Ms. Fleming, he should have been permitted to admit unredacted versions of those exhibits under the doctrine of verbal completeness.
In certain circumstances, the doctrine of verbal completeness allows a party to respond to an opponent‘s entry of a writing or conversation “by admitting the remainder of that writing or conversation.” Conyers v. State, 345 Md. 525, 541 (1997). Three requirements apply to any evidence admitted as an additional part of a document under that doctrine: “[1] No utterance irrelevant to the issue is receivable; [2] No more of the remainder of the utterance than concerns the same subject, and is explanatory of the first part, is receivable; [and 3] The remainder . . . merely aids in the construction of the utterance as a whole[.]” Id. at 541-42 (quoting Feigley v. Baltimore Transit Co., 211 Md. 1, 10 (1956)). “Determining whether separate statements are admissible under the doctrine of verbal completeness is . . . to be reviewed for an abuse of discretion.” Otto v. State, 459 Md. 423, 446 (2018). “Of course, parts of the conversation having no reference whatever to the issue upon trial are not admissible under the rule[.]” Grove v. State, 185 Md. 476, 479 (1946) (quoting People v. Bowen, 135 N.W. 824, 827 (Mich. 1912)).
The ostensibly incomplete statements in the redacted video and transcript on which Mr. Westley relies consist of generic references by Ms. Fleming: (1) indicating prior familiarity with Victim, including stating that Victim looked “taller since the last time,” asking, “How old are you now?,” and remarking that Victim was “living in Salisbury” the last time they had talked; and (2) suggesting Victim‘s prior familiarity with the facility, including asking if Victim “remember[ed] the room has cameras” and stating that the CAC “got new pretty markers.” Notably, Mr. Westley did not object to including any of these references in the redacted versions of the video and the transcript, nor did he ask for those references to be redacted. Instead, he argued that their inclusion opened the door for him to introduce the unredacted video and transcript, including the discussion of Victim‘s prior abuse by Mr. Quails. The court denied Mr. Westley‘s motion to admit unredacted exhibits and later sustained the State‘s objection when Mr. Westley attempted to cross-examine Ms. Fleming about those prior meetings. Mr. Westley argues that the court erred in both rulings.
For these reasons, we conclude that the trial court did not err or abuse its discretion in declining to admit evidence of Victim‘s prior sexual abuse at trial under the opening the door doctrine or the doctrine of verbal completeness.
IV. THE EVIDENCE WAS SUFFICIENT FOR A TRIER OF FACT TO CONCLUDE THAT MR. WESTLEY HAD TEMPORARY RESPONSIBILITY FOR SUPERVISION OF VICTIM.
Mr. Westley‘s final contention is that the evidence was insufficient to convict him of sexual abuse of a minor based on the modality requiring that he “ha[d] . . . temporary care or custody or responsibility for the supervision of a minor[.]” See
responsibility for supervision of a minor child may be obtained only upon the mutual consent, expressed or implied, by the one legally charged with the care . . . . [A] parent may not impose responsibility for the supervision of his or her minor child on a third person unless that person accepts the responsibility[.]
Ellis v. State, 185 Md. App. 522, 543-44 (2009) (quoting Pope v. State, 284 Md. 309, 323-24 (1979)).
The determination of “whether a person has responsibility for the supervision of a minor is a question of fact for the jury to determine.” Harrison v. State, 198 Md. App. 236, 243 (2011). On appeal, this Court “review[s] the evidence in the light most favorable to the prosecution and determine[s] whether ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.‘” Perry v. State, 229 Md. App. 687, 696 (2016) (quoting State v. Smith, 374 Md. 527, 533 (2003)). The standard of review for legal sufficiency of evidence is not demanding. See McKenzie v. State, 407 Md. 120, 136 (2008) (asking whether ”any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt” (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979))). We “must give deference to all reasonable inferences the fact-finder draws, regardless of whether we would have chosen a different reasonable inference.” State v. Suddith, 379 Md. 425, 430 (2004).
Mr. Westley contends that the evidence at trial was insufficient to demonstrate beyond a reasonable doubt that he consented to supervise Victim either expressly or impliedly. We disagree. The record, viewed in the light most favorable to the State, establishes that Mr. and Ms. Westley took Victim and her four siblings into their care for two weeks while Mother and her husband were incarcerated. Mother testified that she asked her sister if she and Mr. Westley would watch the children;
The evidence was sufficient for a jury to conclude that Mother had voluntarily entrusted both her sister and Mr. Westley with the care and supervision of Victim and that Mr. Westley had at least implicitly consented to the arrangement. Although there was other testimony that could potentially have supported a conclusion that only Mother‘s sister accepted supervision of the children, “[i]t is ‘the jury‘s task to resolve any conflicts in the evidence and assess the credibility of witnesses.’ . . . In so doing, the jury ‘can accept all, some, or none of the testimony of a particular witness.‘” Correll v. State, 215 Md. App. 483, 502 (2013) (quoting Allen v. State, 158 Md. App. 194, 251 (2004)). Accordingly, we will affirm Mr. Westley‘s conviction for child sexual abuse based on the modality of responsibility for supervision of a minor. See
JUDGMENTS OF THE CIRCUIT COURT FOR WICOMICO COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
Notes
Shand II, 341 Md. at 664 n.2 (quoting(a) Evidence relating to victim‘s chastity.—Evidence relating to a victim‘s reputation for chastity and opinion evidence relating to a victim‘s chastity are not admissible in any prosecution for commission of a rape or sexual offense in the first or second degree. Evidence of specific instances of the victim‘s prior sexual conduct may be admitted only if the judge finds the evidence is relevant and is material to a fact in issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value, and if the evidence is:
- Evidence of the victim‘s past sexual conduct with the defendant; or
- Evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, disease, or trauma; or
- Evidence which supports a claim that the victim has an ulterior motive in accusing the defendant of the crime; or
- Evidence offered for the purpose of impeachment when the prosecutor puts the victim‘s prior sexual conduct in issue.
(b) In camera hearing.—Any evidence described in subsection (a) of this section, may not be referred to in any statements to a jury nor introduced at trial without the court holding a prior in camera hearing to determine the admissibility of the evidence[.]
Shand II, 341 Md. at 675 (alteration in original).The word “conduct” is defined as “behavior in a particular situation or relation or on a specified occasion.” Webster‘s Third New International Dictionary 474 (1976). “Conduct” is: “[p]ersonal behavior; deportment; mode of action; any positive or negative act.” Black‘s Law Dictionary 268 (5th ed. 1979).